GSB#2010-0571
UNION#2010-0671-0001
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Boucher)
Union
- and -
The Crown in Right of Ontario (Ministry of Northern Development, Mines and Forestry)
Employer
BEFORE
Nimal Dissanayake
Vice-Chair
FOR THE UNION
Mark Barclay Ontario Public Service Employees Union Grievance Officer
FOR THE EMPLOYER
Cathy Phan, Jamie Kneen Ministry of Government Services Labour Practice Group Counsel
HEARING
February 7 & 8, September 21, 2011.
Decision
1Ms. Joanne Boucher (“grievor”) filed a grievance dated April 7, 2010 alleging that following a job competition in February 2010 she was denied the position of Senior Administrative Clerk (“SAC”) contrary to the collective agreement. The successful applicant (hereinafter “Ms. L”) was provided appropriate third party notice of the instant proceeding, but did not attend the hearing.
2The grievor had approximately 21 years seniority, while Ms. L’s service in the Ontario Public Services is limited to approximately two years as an unclassified employee. It is the union’s position that the job competition process was fatally flawed. It was submitted that the grievor would have been found to be at least relatively equal in qualifications and ability to Ms. L, had the employer conducted the competition in compliance with the collective agreement. The Board was urged to order that the grievor be appointed to the position and compensated for all of her losses. In the alternative, the union requested that the employer be directed to re-run the job competition in compliance with the collective agreement.
3The vacancy in question was at the Mining Lands Section, of the Mineral Development and Lands Branch of the Ministry in Sudbury, Ontario. The management of the office consists of three Provincial Mining Recorders (“PMR”), each of whom has the responsibility for a region within the province. The SAC positions reported to a PMR.
4The job competition process consisted of an oral interview and a practical test. All applications were received and screened by the Northern Recruitment Centre, and five applicants were selected for interviews, including the grievor and Ms. L. The interview panel consisted of two of the RMRs in the branch, Mr. Tony Scarr (Chair) and Mr. Clive Stephenson. The practical test was assessed and marked by Mr. Scarr. The union took no issue with the practical test or the marks assigned.
5Mr. Scarr testified that in accordance with his usual practice, he took notes during the interview as candidates provided answers. However, it was not his practice to take notes verbatim. If a candidate provided information which in his view was not relevant to the question, he did not record that. If possible, he assigned marks to a question soon after the answer was provided. If that was not possible, the questions were scored after the completion of the particular candidate’s interview. Employer counsel took Mr. Scarr through his notes for the eight interview questions and the marks he assigned for both the grievor and Ms. L. Referring to his interview notes, he explained why he assigned the marks as he did.
6During cross-examination, Mr. Scarr testified that he had not directly supervised the grievor during her acting assignments in the SAC position. However, he agreed that he was aware that the grievor had successfully competed for the acting assignments, and that the acting assignment was extended several times.
7Mr. Scarr testified that no personnel files were reviewed, and reference checks were done only for those achieving the cut-off mark of 65 percent on the interview and practical test. Any candidate not achieving that threshold was deemed not qualified for the position, and ineligible to proceed further in the competition. Since the grievor scored only 45.5, she was deemed unqualified and not eligible to proceed further. Mr. Scarr testified that his intention was to hire “the best fully qualified person”. He stated that he was not aware that the grievor had any performance or discipline issues. When counsel suggested that the grievor’s performance in the SAC position shows that she was qualified for that position, Mr. Scarr agreed.
8Mr. Scarr was referred to instances in his score sheets, where he had no check marks but had assigned marks, and other instances where he had checked off expected answers, but no marks were assigned. Mr. Scarr explained that it was his style. When questioned about the marks assigned, Mr. Scarr testified that it was impossible to go back in time, because he could not recall all of the responses provided more than a year ago. He explained that the marks he assigned were based not only on the notes he recorded, but also on everything he heard at the time. When counsel suggested, “so it is entirely possible that you did not record all of her responses”, Mr. Scarr agreed. When counsel pointed to a question for which Mr. Scarr had recorded extensive notes, but the grievor was assigned one out of ten, Mr. Scarr explained that while the grievor had provided a lot of information and he had recorded that, much of it was irrelevant to the question.
9During re-examination, Mr. Scarr testified that while the grievor was performing in an acting SAC position at the time of the interviews, it was not the specific SAC position which is the subject of this proceeding.
10Mr. Clive Stephenson, the other member of the interview panel, testified that he also scored the answers soon after each question was answered or at the completion of each candidate’s interview. When asked why he took notes and did the scoring in pencil, he explained that it was a technique he used, since he could write faster with a pencil, and it allowed him to erase and change what he recorded if he realized that he had misunderstood the response provided.
11Employer counsel took Mr. Stephenson also through his answer sheets for the grievor and for Ms. L, and had him explain why he had assigned marks as he did. He testified that he only took notes on responses that were relevant to the question asked. He only wrote down the gist of what was said, and did not attempt to write down everything.
12Mr. Stephenson stated that his goal was “to hire the best person for the position and to do so in a fair and equitable manner”. He stated that the posted SAC position reported to the third PMR in the branch, Mr. Steve Devos, but agreed that he had supervised the grievor for two brief periods while she was acting in the position of SAC, and that during that period he had a cordial relationship with her.
13During cross-examination Mr. Stephenson agreed that when the grievor’s acting SAC assignment ended on March 12, 2010, he had offered to extend that acting assignment in order to backfill another SAC position, and that he had no reservations about doing that. Mr. Stephenson agreed that during the period of approximately six weeks he supervised the grievor in the SAC position, he had no issues with her work performance. When asked how he would have responded if he had been asked for a reference for the grievor, he stated that he would have given a positive reference.
14Union counsel took Mr. Stephenson through a number of interview questions, where the notes he made and the number of check marks he recorded for both the grievor and Ms. L appeared to be the same, but the marks assigned were greater for Ms. L. Mr. Stephenson replied that what he wrote down “does not mean much”. He explained that the disparity in the marks may be because Ms. L provided “more in-depth” answers. The answers were assessed and marked at the time based on what he heard, and it was not possible to write down everything.
15In re-direct, counsel pointed to the unions assertion that Ms. L had scored zero out of five on Question 2, which related to a core function of the posted position, and asked Mr. Stephenson how someone without that knowledge could function effectively in the SAC position. Mr. Stephenson replied that the posting was open OPS wide, and that anyone who had the aptitude can learn by reading the legislation and procedures, and training could be made available if necessary.
16The grievor testified that since 1988 she had been employed in the Office of the Provincial Mining Recorder in the Mining Lands Section, where the vacancy in question arose. She joined as a clerk, and at the time of testifying held the position of Administration Clerk. She testified that she had performed as SAC in an acting capacity from December 17, 2007 to September 9, 2009 and again from January 25, 2010 to March 12, 2010. Thus during the competition under review, she was acting as a SAC. The grievor testified that she obtained a 6 month acting SAC position in 2007 after participating in a job competition, and that following a second competition in June 2008, her acting appointment was indefinitely extended, and lasted until September 2009. She testified that all of her performance evaluations in the acting SAC position were positive.
17The only performance evaluation filed in evidence covered the period from April 1, 2009 to March 31, 2010, which covers the year approximately immediately preceding the competition. It was carried out by Mr. Steve Devos, who the grievor reported to in her position of acting SAC. Mr. Devos in his concluding comments did identify two areas of leadership attributes which needed improvement, but assigned her the highest possible grade of 80 to 100 percent for the learning and development plan. The performance rating section of the evaluation form included only two options, “met performance commitments” or “did not meet performance commitments”. The former was checked off by Mr. Devos.
18The grievor testified that during her hour long interview neither Mr. Scarr nor Mr. Stephenson wrote any notes. She saw Mr. Stephenson write something once, but he immediately erased what he wrote. She insisted that the notes that now appear on their answer sheets had to have been made some time after the interview. She stated that without writing anything down they both kept looking at her, and that made her feel humiliated and embarrassed.
19The grievor recalled that later in the afternoon the same day, after she had done her practical test, she was called into a meeting with Mr. Scarr and Mr. Devos. According to her, they advised her that they had heard that she was spreading a rumour in the office that the panel members did not write any notes during her interview. The grievor asked Mr. Stephenson why he took no notes. According to her, Mr. Stephenson replied, “We like to take our own notes”, and that she asked him “How can you do that? How can you possibly remember all the answers and examples I gave without writing anything down?”. Instead of answering her question, Mr. Stephenson commented that he had also heard that the grievor was “going to grieve”. The grievor replied that she would be grieving on the advice of her union representative. When asked whether Mr. Stephenson denied that he took no notes, the grievor replied, “No. Clive admitted that’s how he usually does it. That he makes notes later”.
20Following the announcement of the results of the job competition, a debriefing meeting was held between the grievor and Mr. Scarr. According to the grievor, at the commencement of that meeting she asked Mr. Scarr why he took no notes during her interview, and he told her “We are not here to discuss that, we are here for a debriefing”. The grievor testified that when she repeated the same question later Mr. Scarr replied, “We like to make our own notes”. When she asked him “How can you do that. You can easily forget crucial information I gave you”, Mr. Scarr did not respond.
21The grievor was very emotional as she testified that her not getting the appointment, when she had proven that she was an excellent worker, left her feeling upset and humiliated. She was of the opinion that the job competition process was cruel, and that management was negligent and incompetent in the way they conducted it. She stated that the notes that appear on the answer sheets of the panel members were not the answers she provided and that a lot of crucial information she had provided has been left out.
22In cross-examination, employer counsel put to the grievor the performance evaluation for the period between April 2009 to March 2010, and the grievor agreed that it identified two areas that need improvement, even though she had achieved the top grade of 80-100 percent.
23Mr. Scarr and Mr. Stephenson gave testimony in reply. Both reiterated their testimony-in-chief regarding their note taking and denied that they had admitted to the grievor that they did not take notes during her interview.
24The evidence indicates that based on the scores achieved in the oral interview and practical test the top candidate had a score of 69.8. Ms. L was next with 67.5, and the grievor third with 45.5. Ms. L was awarded the position due to her greater seniority over the top scorer. Since the grievor was short of the threshold of 65 she was deemed ineligible for further consideration.
25The job specification for the posted SAC position sets out the “purpose of position” as:
To provide administrative support to the Provincial Mining Recorder and the Deputy Recorder, to assist in administering the Mining Act and to assist with the functions of the Senior Field Technician in his/her absence.
The “Duties/Responsibilities” are set out as follows:
Duties/Responsibilities:
Performs work in a regional team led by a Provincial Recorder and Deputy recorder to provide program delivery in compliance with the Mining Act and regulations to clients in Ontario by:
Conducting quality control and data verification of all information entered into CLAIMS at both field and main office locations, correcting date (e.g. Incorrect claim numbers, dollar values, etc., entered incorrectly by data entry clerks), providing direction as to proper data entry codes to be used and bypass warnings and errors as delegated by the provincial claims administrator and perform posting and approval of assessment work.
Representation on CLAIMS and Digital submissions committee, providing CLAIMS systems maintenance such as restarting batch jobs, recommend changes, report back to supervisor and request assistance from Information Technology regarding systems related problems.
Providing customer service through routine advice, direction and explanation to clients on staking mining claims, filing of assessment work, the status of lands, other land related issues and documents to be filed under the provisions of the Mining Act, legislation, regulations and ministry/government policy. Review incoming routine legal documents to determine validity for filing and for compliance with Mining Act and regulations. Identify problems or concerns and discuss with the client while referring non-routine questions/documents or complex problems to the Deputy Recorder or Provincial Recorder, with recommended solution(s).
Maintaining all administrative and transactional filing systems by following predetermined records retention practices for storage, closing, purging and arranging of local and off-site storage of closed files and retrieving information and documentation from various files and/or computerized databases at the request of the provincial Mining Recorder, Deputy Recorder, Mining Lands staff or clients.
Preparing monthly business reports and statistical data of onsite activity for submission and prepare approval correspondence for the Senior Manager, Mining Lands; package assessment work reports for shipping to Resident Geologist office, and ERMES; prepare correspondence for the signature of the Provincial Mining Recorder or the Deputy Recorder; and backfill, when required, in the Mining Lands Consultants offices.
Assisting in the development and recommendation of changes to administrative procedures and manuals by identifying and analysing verification problems and provide input on changes to the Mining Act.
Performing title searches from local land registry office and assisting with backlogs by performing specific tasks not requiring advanced knowledge of Geosciences.
Providing training and group leadership to clerical staff.
The “knowledge” section of the job description includes the following:
Job requires knowledge of the Mining Act and Regulations, ministry practices and policies, combined with a familiarity of other related Acts dealing with land and land tenure administration in order to provide technical information and process legal documents.
26Employer counsel submitted that the Board should prefer the testimony of Mr. Scarr and Mr. Stephenson that they did take notes during the grievor’s interview, although they only wrote down information they considered to be relevant to the question asked, and the notes were not a verbatim transcript. Counsel pointed out that even assuming that the notes were written later, that by itself is not sufficient to render the notes unreliable. While the grievor had made general assertions that it would be impossible for the panel members to remember everything she said without recording her answers at the time, and that the notes did not include crucial information she had provided, the union did not even attempt to show what specific information the grievor had provided for a particular question had been omitted. Besides, both panel members testified that marks were assigned based on all of the information provided in response to a question, not only based on the recorded notes.
27Employer counsel conceded that there were defects in the process in that the panel members had not reviewed the applicants’ resumes or personnel files, and reference checks were done only for candidates meeting the threshold of 65 on the interview. However, citing Re Brent, 1733/88 (Fisher), she argued that defects in the competition process by themselves should not cause the Board to reject its outcome. It was incumbent upon the union to prove on a balance of probabilities that but for the defects, the grievor would have been within the range of relative equality in qualifications and ability to Ms. L. It was her submission that the union had not met that onus. She pointed out that the grievor had scored 22 points less than Ms. L. Assuming as a rule of thumb a 10 percent range for relative equality, counsel pointed out that the grievor would still need to make up 12 more points to come within relative equality. Citing Re Jobson, 2008-1107 (Petryshen), she submitted that here also the Board should conclude that the grievor would not have made up the necessary points even if the defects had been avoided.
28The standard expected of an employer in conducting a job competition has been long established through the Board jurisprudence. The applicable principles are summarized at pp. 25-26 in the often cited decision in Re MacLellan and DeGrandis 506/81 (Samuels) as follows:
Candidates must be evaluated on all the relevant qualifications for the job as set out in the Position Specification.
The various methods used to assess the candidates should address their relevant qualifications insofar as is possible. For example, interview questions and evaluation forms should cover all the qualifications.
Irrelevant factors should not be considered.
All the members of a selection committee should review the personnel files of all the applicants.
The applicants’ supervisors should be asked for their evaluations of the applicants.
Information should be accumulated in a systematic way concerning all the applicants.
29The Board has repeatedly held that relying solely on interview scores as a means of assessing the relative qualifications and abilities of the applicants is unacceptable. Thus in Re Esposito, 2168/92 (Kaplan) the Board stated at p. 26 “As the Board has noted in a legion of cases, where a selection panel relies inordinately on interviews, it does so at its own peril.” In Re Liblik/Scipnek, 2525/91 (Dissanayake) at pp. 19-20, the Board wrote:
As the Board has stated on many previous decisions, the employer is entitled to conduct interviews and/or tests to assess the candidates’ relative qualifications and abilities to perform the duties in a posted position. Where the employer has no evidence before it which is more reliable than the performance at the interviews, it many have no choice but to rely solely on the interview scores. However, where some candidates have actual employment experience, particularly in the posted job itself, the evaluation of their performance on the job must usually be preferred to the interview results. At the very least, that must be given serious consideration in the overall assessment of the employee’s qualifications and ability to perform the duties of the posted position.
(Emphasis added)
The Board has held that sole reliance on interview scores to select appointees is by itself reason to strike down the results of a job competition. See Re Poole, 2508/87 (Samuels) and Re Clipperton, 2554/87 (Watters).
30In the present case, it is clear from the evidence that the employer did exactly what the Board has repeatedly held to be a breach of the obligation under article 6.3.1. The employer completely ignored principles 4, 5 6 set out in Re MacLellan and DeGrandis (supra). There is no evidence that the employer assessed anything other than the applicants’ performance in the interview and practical test. The grievor had performed in the SAC position in an acting capacity. Although the employer pointed out that the SAC position the grievor had was not the posted SAC position, the evidence is that all SAC positions had a common position specification and therefore, the same duties and responsibilities. As observed in Re Liblik/Scipnek (supra) in these circumstances the employer is obligated at the very least to give serious consideration to the grievor’s performance in the SAC position in the overall assessment of her qualifications and ability to perform the duties of the posted position. It is very clear that the employer did not give any consideration whatsoever to that information, which the Board has stated, “must usually be preferred to the interview results”. This is evidenced by the employer’s failure to review and assess the grievor’s resume and personnel file, or to conduct reference checks for her. The grievor’s testimony that all of her performance evaluations while in the acting SAC position were positive remains uncontradicted. This is confirmed by the only performance evaluation filed in evidence in which the grievor achieved the highest possible grade of 80-100 percent and was found to have “met performance commitments”. Also Mr. Stephenson, who had supervised the grievor for a period of time as acting SAC testified that he had no concerns with the grievor’s performance, and that he would have provided her a positive reference if one had been requested.
31In light of this evidence, it is not possible to conclude, as employer counsel urges me to, that the defects were without any significance as far as the ultimate decision was concerned. To the contrary this a very clear example where very relevant and reliable information pertaining to the grievor’s qualifications and ability that directly related to the duties and responsibilities of the posted position was not at in any way factored in to the decision making. That is directly contrary to article 6.3.1.
32The Board jurisprudence on remedy was reviewed in Re Naczynski, 2003-3124 (Abramsky). At p. 22, Vice-Chair Abramsky described the applicable principles as follows:
Considering all of these cases, and the other cases cited to me, it seems that there are two standards – one for ordering the grievor into the position and one for ordering a re-run. If the Board is to order the grievor placed into the position, the Union must prove, on the balance of probabilities, that the flaws would have affected the outcome. In other words, the grievor must show, on the balance of probabilities, that he or she would demonstrate relative equality if a proper selection procedure had been done. In a re-run situation, the Union must establish, on the balance of probabilities, that the flaws could have affected the outcome. If neither onus is met, the grievance must be dismissed.
On page 22, she also wrote:
In OPSEU (Sauve) supra at p. 31, the Board held that after D. Bent, supra, “an unsuccessful applicant who complains that a selection committee failed to gather appropriate sorts of information can be expected to put before the Board any of the missing information which supports his or her claim to the job.” I agree. It is not sufficient merely to state that the information was improperly not assessed. It must be submitted and shown that it would have, or could have, made a difference.
33Turning to the issue of the interview notes, there is no question that it is very advisable for panel members to write down as much as possible of the answers provided contemporaneously. The panel members control the interview, and it is within their ability to direct applicants to speak slowly, or to repeat an answer as necessary. Even if a particular member has the ability to remember all of the information provided in answer to a question to be able to write down notes at a later time, and in fact does so, that practice would only lead to disputes and challenges at arbitration as to the completeness of the notes. Contemporaneous notes are always an asset when resolving conflicts in testimony. By not taking contemporaneous notes, a panel member loses that advantage. The same is true of a practice of writing down notes only on parts of an answer provided which the panel member deems to be relevant. The exact content of the omitted information, and whether that information was in fact relevant to the question could be a matter of dispute at arbitration. Without notes made at the time, a panel member may face challenges that the information provided but not noted, was in fact relevant. Contemporaneous interview notes would help to meet these challenges.
34Having said that, however, the failure to follow that best practice per se, is not a flaw which necessarily leads to a conclusion that the scores assigned to questions are inaccurate or unreliable. The obligation on the panel member is to properly assess and score the answers provided. Interview notes would become important evidence in the event of a dispute whether a panel member met that obligation. However, deficient note taking practices, per se, would not result in a breach. The union has the onus to establish that as a result of the panel’s inadequate note taking practices, the grievor was denied credit for relevant information provided. In order to meet that onus, the union must put forward the missing information that it says would have made a difference (Re Sauve, (supra).
35In light of those principles, I have concluded that it is not necessary to resolve the conflict in the evidence as to whether the two panel members made contemporaneous notes. Apart from the grievor’s general assertion that the notes did not include critical information she had provided, no attempt was made to put forward that missing information. There is no evidence whatsoever to demonstrate that the grievor provided any specific relevant information in response to a question which was not reflected in a panel member’s notes, and for which she received no credit. Regardless of the practice of note taking followed, in order to challenge the scores assigned, the union must show that relevant information was provided for which the grievor received no credit. Merely attacking the method of note taking is not sufficient to meet that onus.
36Panel members are not expected to be perfect, as long as the overall assessment is carried out in a fair and reasonable manner. In Re Esposito, (supra) at pp. 28-29 the Board stated:
While a handful of questions might have been marked differently, and while other assessors might have been more generous in the assignment of grades, we cannot say, having carefully reviewed the grievor’s answers and grades…, and those of the successful applicants, that there was any overall unfairness in the grading process. Certainly, there was no evidence that the grievor was singled out for particularly harsh treatment when it came time to assign grades, nor is there any credible evidence supporting the assertion that Mr. McBride was biased against the grievor. …While the evidence does suggest that the grievor might have received some additional points for a number of questions, we find that, on balance, her final grade accurately reflects her performance in this competition, and that her performance was [not] comparable to that of the three successful applicants.
In the instant case, the union criticized the marking on the basis that in some instances there was inconsistency between the number of check marks recorded and the marks assigned. The explanation of the panel member was that regardless of the number of suggested answers checked off, the marks were assigned based on the answer provided. Similarly the union pointed to one question where the panel members’ notes were similar for both the grievor and Ms. L, but the latter received a higher mark. The panel member’s explanation under cross-examination was that Ms. L’s response would likely have been more in-depth than the grievor’s. The forgoing also suggests that the practice followed by the panel members of taking selective notes was unwise. With complete rather than selective notes, a panel member would be able to demonstrate why one answer was more in-depth than another and deserved more marks. However, in the absence of evidence that the grievor provided relevant information for which she received no credit, less than desirable note-taking practices per se are not sufficient to strike down the scores as a whole. The Board cannot, based on the evidence before it, conclude that the interview process was not carried out in a fair and reasonable manner. I agree with the submission of employer counsel that, even assuming that no contemporaneous notes were taken, in the absence of evidence that the panel’s practice adversely impacted on the grievor, the Board should decline to strike down the interview results. Therefore the Board concludes that the employer was entitled to take into account the interview results as part of its decision making process.
37However, the clear evidence is that the employer relied solely on the interview results. The Board in Re Esmail (supra) at p. 19 stated that the fact that “the selection panel relied solely on the interview marks in selecting winners” is “by itself reason to strike down the competition”. I agree. Therefore, for that reason alone the results of the instant competition cannot stand.
38That leaves for determination the appropriate remedy. Should the Board order a re-run of the competition or order that the grievor be appointed to the posted SAC position? Or should the Board, as urged by the employer, merely declare a violation and decline to order either remedy?
39As reviewed in Re Naczynski (supra), the remedy would depend on whether the evidence is sufficient to establish on a balance of probabilities that the grievor could or would have been found to be relatively equal to Ms. L in qualifications and ability, had the employer conducted the job competition in compliance with the standards set out in the jurisprudence. If it could have been so found, a re-run would be the appropriate remedy. If, however, the evidence establishes on a balance of probabilities that the grievor would have been found to be relatively equal to Ms. L, the appropriate remedy would be to order that the grievor be appointed.
40In the SAC position specification, the description of “purpose of the position” and “the duties and responsibilities” envisage numerous skills and knowledge specific to mining and lands. The preamble reads “Performs work in a regional team led by a Provincial Recorder and Deputy Recorder to provide program delivery in compliance with the Mining Act and regulations to clients in Ontario by:” Consistent with this, the “knowledge” section of the position specification states that the SAC position “requires knowledge of the Mining Act and Regulations, Ministry practices and policies, combined with a familiarity of other related Acts dealing with land tenure administration in order to provide technical information and process legal documents”. The grievor, having worked under this job specification with positive performance evaluations has demonstrated that she had that required knowledge.
41A review of Ms. L’s application and resume shows that she had been employed in clerical/administrative positions in the private sector from 1992 to 2008. From 2008 she has been an unclassified employee with the Ministry of Government Services as a Revenue Representative. Her description of the duties and responsibilities in each of those positions, including her most recent OPS position, indicates that her experience throughout has been in finance and accounting. This is consistent with the Business Administration – Accounting diploma she holds. On the other hand, there is no evidence that she had any knowledge or experience with mining and lands, legislation related to mining and lands, or related Ministry practices or policies. There is no question, as the employer witnesses suggested, that Ms. L has tremendous aptitude and potential. This is evidenced by the glowing references she received from her former employers. However, all of her achievements have been in accounting and finance. It may well be, as Mr. Scarr suggested, that given her demonstrated aptitude, she would be able to acquire the mining related knowledge required, with training if necessary. However, that potential cannot trump the grievor’s extensive experience with mining and lands legislation and regulations, and her successful performance in the Provincial Mining Recording office for 22 years, including in the capacity of acting SAC.
42The grievor had provided the names of all three PMRs in the office as her references. Two of them testified. Both Mr. Scarr and Mr. Stephenson candidly testified that they were not aware of any performance issues with the grievor. Mr. Stephenson in fact testified that he would have given the grievor a positive reference, had one been requested. The third PMR, Mr. Devos, was the grievor’s manager during her acting SAC assignment. He had given her a positive assessment of her performance of SAC duties in the performance evaluation he carried out. Therefore, it is reasonable to conclude that all three references would have been positive. Even if the grievor’s reference checks would not have been as impressive as Ms. L’s, they would carry significantly more weight since they would have been based on her performance of mining and lands related duties in the very office where the vacancy existed, and it would have also reflected her performance in the SAC position itself. In contrast, Ms. L’s glowing references were not related to any mining or lands related duties. Her duties were largely finance and accounting related.
43The grievor’s demonstrated performance of mining and lands related duties, including SAC duties, in the Board’s view, is a much more reliable indicator of qualifications and ability for the posted position, than her interview scores. The employer completely ignored that reliable information. The Board concludes that if the candidates’ relative employment experience and knowledge as it related to the posted position had been duly assessed, the grievor would have been found at least to be relatively equal, in qualifications and ability, to Ms. L. Therefore, based on her greater seniority, she would have been appointed to the posted position.
44From the foregoing, it follows that the grievance is allowed. The employer is directed to appoint the grievor to the posted SAC position retroactively to the date of Ms. L’s appointment, and to compensate her for all losses that resulted from the employer’s breach of article 6.3.1. The Board remains seized with regard to the implementation of this decision.
Dated at Toronto this 19th day of October 2011.