GSB#2009-0691, 2009-0692

UNION#2009-0706-0001, 2009-0706-0002

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (O’Brien/Lepage)

Union

• and -

The Crown in Right of Ontario (Ministry of Northern Development, Mines and Forestry)

Employer

BEFORE

Nimal Dissanayake

Vice-Chair

FOR THE UNION

Christopher Bryden Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Kevin Dorgan, Michelle Dobranowski & Jamie Kneen Ministry of Government Services Labour Practice Group Counsel

HEARING

August 10, November 4 & 26, 2010. April 4 & 5, October 5 & 6, 2011.

Decision

1This decision relates to a job competition for two positions (one in Thunder Bay and one in South Porcupine) of Compliance Officer (“CO”) held in February 2009. The two grievors, John O’Brien and Raymond Lepage applied for both positions but were screened out and not granted interviews. Following the competition process Mr. Mark Puumala was awarded the Thunder Bay position. The South Porcupine position was not filled at the time since the employer determined following interviews that none of the applicants met the required qualifications. Subsequently that position was transferred to Sudbury and Ms. Roberta Pedlar-Hobbs was appointed to it. The Board is satisfied that both incumbents were provided third party notices of these proceedings, but neither attended.

2The grievors filed grievances dated March 18, 2009 alleging that by denying them participation in the interview process the employer contravened article 6.3. of the collective agreement, which reads:

In filling a vacancy, the Employer shall give primary consideration to qualifications and ability to perform the required duties. Where qualifications and ability are relatively equal, length of continuous service shall be the deciding factor.

3The relevant portion of the job posting is as follows:

The Ministry of Northern Development and Mines seeks a dynamic, highly motivated individual with strong technical knowledge and negotiation skills for a key role in the Mine Rehabilitation program. You will be responsible for coordinating compliance audits and action plans for mine closures, undertaking enforcement activities, as well as preparing crown briefs and court documents. Providing testimony before court and judicial hearings and coordinating emergency response activities including site restoration will also be components of this role. In addition, you will provide expert advice to other agencies and the public and respond to complaints and enquires.

Qualifications: knowledge of and experience in safety and environmental investigation techniques, due process of law, rules of evidence, and court procedures, knowledge of mining and exploration, as well as the ability to interpret and apply mining and other related legislation, including the Environmental Protection Act and Occupational Health and Safety Act, ability to interpret and apply mine rehabilitation legislation, as well as knowledge of mine rehabilitation theories and practices, proven negotiated and communication skills, ability to coordinate emergency activities, including site restoration and liaising with regulatory agencies, site owners, officials and/or other concerned parties, ability to carry out field investigations under adverse conditions; valid driver’s license to travel to conduct field investigations.

4The job specification for CO reads:

Purpose of Position:

To carry out compliance reviews/non-compliance investigations and related enforcement duties of mine rehabilitation plans designated for health/safety, environmental protection and reclamation of mined out land. To coordinate the Closure Plan Process.

Duties/Responsibilities:

1. Carries out compliance reviews/non-compliance investigations and enforcement duties by:

. auditing mine closure plans and technical/financial submissions for completeness and compliance, prepare reports;

. prioritising and visiting mine properties to inspect for proper and/or on schedule installation and successful implementation of rehabilitation measures including those ordered by the Director or Court and in response to complaints, regulatory agency referrals and land tenure transactions;

. conducting site review/investigation which may include obtaining process descriptions, mill/mine design drawings, specifications, reports, etc. . collecting samples (e.g. soils), performs tests (e.g. ph of water), make rough sketches, take photos, confer with mining officials, etc.;

. arranging for and coordinating expert, professional and/or regulatory agency individuals(s) to assist in reviews/investigations as required;

. accessing, interpreting and evaluation review/investigation results to determine adherence to rehabilitation plan and court-direct orders(s) and safety/environmental legislation;

. preparing detailed report(s) including recommendation for appropriate rehabilitation and/or prosecution;

. advising proponent of recommended rehabilitation measures and negotiating action plan and implementation schedules;

. preparing comprehensive Crown Briefs detailing the findings of investigations;

. ensuring counsel by presenting facts obtained through compliance review/investigation including statements of examination of witnesses clearly and in sequence;

. obtaining/executing court orders (e.g. inspection and search warrants, summonses and subpoenas) as required;

. appearing as expert witness for the Crown and in Provincial Court to set dates for trials, adjournments, etc.;

. liaising with regulatory agencies e.g. MOEE/MOL/MNR to advise of related infractions and to determine if joint investigation is required and to exchange information, etc.;

. in cases of Court or Director order non-compliance, upon approval, obtaining a court injunction or assisting in contempt of Court proceedings.

2. Co-ordinates Closure Plan process by:

. reviewing and evaluating to ensure plan completeness including appropriate supporting documentation e.g. statistics and specifications as per the Mining Act; liaising with proponents to obtain additional information when plans elements are not sufficient;

. setting and meeting approval process deadlines;

. planning/organizing/conducting meetings with regulatory agency personnel e.g. MOL/MNR/MOR to obtain/exchange information and to secure regulatory approvals;

. planning/organizing/conducting meetings with Ministry multi-discipline personnel to ensure technical soundness of plan and secure Ministry required approvals;

. liaising with proponents on behalf of the Ministry to obtain/exchange information and review/revise Closure Plans including rehabilitation strategies, implementation schedules, documentation etc.;

. preparing for Directors signature Closure Plan revisions and related correspondence.

3. Performs other duties such as:

. consulting with supervisor and Ministry officials e.g. lawyers to coordinate activities, advise of plans, acquire advice, provide/obtain information and contentious issues information;

. coordinates emergency response activities including site restoration, liaising with regulatory agencies site owners/officials and/or other concerned parties e.g. elected officials, writing briefing notes, etc.;

. recommending and assisting in the formation of policies, procedures and/or guidelines and associated training;

. liaising with public/news media to exchange information and/or explain Ministry rehabilitation policy/procedures/actions;

. as assigned.

Knowledge:

Thorough knowledge of mining and exploration, mining legislation, theory and practices related to mine rehabilitation including the mining sequence/operations and related legislation e.g. Environmental Protection Act and Occupational Health and Safety Act. Extensive knowledge of and proven experience in safety/environmental investigation techniques, due process of law, rules of evidence and court procedures.

Staffing and Licensing Requirements:

Valid driver’s license and good driving record. An ability to attend and successfully complete in-service training programs. Rehabilitation Compliance Officers will be assigned to Investigation in Regions other than designated headquarters in accordance with unit priorities, workload & identified areas of investigative/technical expertise.

Skills:

Effective oral/written communications, keen powers of observation, thoroughness, attention to detail & logical thinking skills. The ability to work independently/irregular hours, travel and conduct field investigations under adverse conditions.

5It is not in dispute that the two grievors have greater seniority than the incumbents. The union contends that both grievors met the qualifications and ability required for the posted position. It is submitted that both were at least relatively equal in qualifications and ability to the appointee to the Thunder Bay position, and that Mr. O’Brien as the more senior of the two grievors ought to have been awarded that position. As for the South Porcupine position, the union’s position is that contrary to the employer’s finding that there were no qualified applicants, both grievors were qualified, and that as the senior applicant Mr. O’Brien should have received the first offer.

6The evidence is that 88 applications were received in response to this open posting. The Northern Recruitment Centre had developed 6 weighted screening criteria. Following an initial screening of applications, the NRC forwarded 21 applications to Ms. Leslie Cooper, Manager of Rehabilitation, Inspection & Compliance. She did a final screening by applying the criteria to the application material submitted by each of the 21 applicants. The employer had predetermined a threshold of 55 percent for the granting of an interview. Of 11 applicants who met the threshold 2 withdrew and 9 were interviewed. Mr. O’Brien and Mr. Lepage scored 45 and 43 percent respectively, and therefore were not granted interviews.

7The criteria applied in the screening process are as follows:

1. Knowledge of and experience in safety and environmental investigation techniques, due process of law, rules of evidence, and court procedures. (30 points)

2. Knowledge of mining and exploration, as well as the ability to interpret and apply mining and other related legislation, including the Environmental Protection Act and Occupational Health and Safety Act. (25 points)

3. Ability to interpret and apply mine rehabilitation legislation, as well as knowledge of mine rehabilitation theory and practices (20 points)

4. Negotiation skills (10 points)

5. Communication skills. (10 points)

6. Ability to coordinate emergency activities, including site restoration and liaising with regulatory agencies, site owners, officials, and/or other concerned parties (5 points)

In applying these criteria, Ms. Cooper assigned a score between zero to three for each criteria. A “zero” meant that the application did not meet the criteria at all. A “one” meant “meets some”, a “two” “meets most” and a “three” “meets all”. A score of “meets some” earned an applicant approximately 33% of the total points for the criteria. “Meets some” got approximately 66% and “meets all” got full marks for the criteria.

8It is now settled that in a grievances such as these where grievors claim that they were improperly screened out of a competition by the denial of an interview, the onus is on the employer to demonstrate on a balance of probabilities that the screening process was fair and reasonable. (Re Quan, 1797/91 (Gorsky) and authorities cited therein).

9It is also established that the employer is not required to grant interviews to all applicants to a posting. It is entitled to screen out applicants including some who may meet the qualifications for the posted position. Thus in Re Boreki, 256/82 (Swinton) at pp. 7-8 the Board stated:

Did the employer act improperly, then, in failing to interview the grievor? In conducting a job competition, an employer cannot be required to interviews all the applicants, regardless of their suitability. When numerous applications come forward, as is common in the public service with its large number of employees, questions of efficiency and cost may require some screening of applications. At times, only those meeting the basic qualifications may be considered. Of course, these qualifications must be reasonably related to the job in question. At other times, the pool of apparently qualified applicants may be so large that a ranking of the highest scores will be called for an interview and further consideration. The ranking, again, must be reasonable, in the sense that each candidate’s qualifications are reasonably evaluated.

As the Board in Re Bent 31/88 (Knopf) stated at p. 17, “Most, if not all, seniors applicants may be qualified for the job. But that does not entitle them all to an interview.”

10While there is no right to an interview, considering the “relative equality” standard in the collective agreement, the Board has required that the screening process be conducted in a comprehensive and fair manner. Thus in Re Kuyntyes/Larman, 920/85 (Gandz) at p. 6, the Board observed:

If the eventual decision about who gets a job is to be based on relative qualifications and abilities, it follows that all steps leading up to that decision must also satisfy the requirement that they lead to valid and relevant information about qualifications and abilities being brought to the attention of the selection Board. If the pre-screening decision screens out a better qualified candidate, the eventual decision cannot help but be faulty. Therefore, while there is clearly no right to an interview in the collective agreement, the nature of the eventual decision to be made requires that the pre-interview screening be done in a comprehensive and fair manner.

11The Board has recognized that the employer is entitled to conduct the screening of applications based on the application material submitted by the applicants. Thus in Re Morsi, 2003-3147 (Fisher) at paragraphs 32-33, the Board wrote:

32 There is no doubt that management can limit the number of people to be interviewed. With over 60 candidates who were eligible, interviewing 20 for only three positions is quite reasonable.

33 It is also clear that management does not have to look beyond the material filed by the applicant, although they clearly cannot be wilfully blind of facts. I am satisfied that the Grievor’s application was thorough and complete and that if she chose not to put something in her resume, that is her problem alone.

In Re Balics 42/84 (Verity) the Board observed at p. 11:

The responsibility lies with the Grievor to set forth in his written application his related qualifications and abilities in order to reach the interview stage of the competition.

And at p. 12

An employee cannot expect that the employer will read into an application, data and information which is not contained on the form of the application.

12Normally, the screening of applications for interviews takes one of two forms. (a) The employer may establish a threshold standard which the applications must meet in order to be selected for an interview, or (b) the employer may rank the applications and grant interviews only to a limited number of the top ranking applicants. In the instant case the employer used the former method.

13With the foregoing principles in mind, the Board turns to the instant grievances. Typically, a “screening grievance” could include two main allegations. First, that the criteria developed for screening and/or their weighting are inappropriate. The most common dispute in this respect is whether or not the criteria are relevant to the actual duties and responsibilities of the posted position, and/or whether the weighting appropriately reflects the importance of the criteria as a requirement to perform those duties and responsibilities. The second common allegation is that the screening criteria were applied in an unfair, inconsistent or otherwise inappropriate manner. In response to a clarification sought by the Board, union counsel made it clear that the union was not alleging that the criteria themselves or their weighting were inappropriate. Thus, the sole issue in the instant case is whether the criteria were applied to the application material submitted by the applicants in a fair, consistent and reasonable manner.

14In this regard, counsel emphasized that the grievors were not competing for a limited number of interviews based upon a ranking of the applications. If their application material, upon a proper application of the screening criteria, meets the threshold of 55 percent, they would be eligible to participate in the interview process. The unions position was that the employers process of applying the criteria to the application material was defective. Counsel urged that the Board should undertake a process of proper application of the criteria to the application material. It was submitted that when that is done avoiding the defects and inconsistencies, the Board would come to the conclusion that both grievors attain the threshold of 55 percent.

15With the greatest respect, in the Board`s view it would be very inappropriate for it to in effect engage in a process of rescoring the application material. First, if the Board is to undertake the role of the “screener” during the course of an arbitration hearing, it would be doing so with the benefit of the evidence of witnesses, and the elaboration, interpretation and clarification of the application material by the grievors and counsel. The employer would not have had that benefit. The Board has held that the employer was entitled to base the screening solely on the documentary material filed. Thus it would be inappropriate for the Board to substitute its opinion on the merits of an application based on information which was not before the employer when it carried out the screening. More importantly, the Board does not have a sufficient level of knowledge and familiarity with the posted position or the overall operational context in which the duties and responsibilities of a given position are carried out. To say the least, the employer is in a much better position to assess how and to what extent the information before it relates to the performance of those duties and responsibilities. Despite detailed job postings and position specifications, it is possible, and even probable, that in relating information provided in an application to the screening criteria which are based on the duties and responsibilities of the job, a certain amount of subjectivity would be involved. However, as long as the subjective judgements are made in good faith, and in a consistent, fair and reasonable manner, that is not objectionable. Thus in Re Jenson, 1041/84 (Ratushny) the Board acknowledged that that the screening process involved subjectivity, but at p. 11 observed:

While we are concerned about this element of subjectivity, the evidence indicates that all applicants were subjected to the same type of assessment by the same person. Indeed, it is difficult to see how all subjectivity could have been eliminated in the circumstances of this competition. On balance, we consider the screening criteria to have been applied in fair and reasonable manner.

16In the Board’s view, the employer would be in a much better position than the Board to make these subjective assessments, due to its familiarity with the posted position, and how it fits into the overall operation of the workplace. Therefore, the Board’s role should be one of determining whether the employer carried out the screening process in a fair, reasonable and consistent manner without any bad faith or ulterior motives. Its role ought not be one of sitting in the position of the employer and conducting the screening process over again. In the present case the union did not allege any bad faith. Therefore the issue is whether the screening process carried out by Ms. Cooper was fair, reasonable and consistent.

17In answering that question relevant considerations include the following:

(1) Was the process and its application consistent? Were all applications evaluated based on the same criteria with the same weighting? Did the employer give credit for information not indicated in the application for some applicants, but ignored similar information for others?

(2) Was the scoring done consistently? For example, were some applicants assigned more points than for others, when the information provided was in substance the same?

(3) Was relevant information in the application material not given credit?

(4) Were irrelevant factors taken into consideration in giving additional or lesser marks?

18Union counsel pointed out that criteria 1, 2 and 3, account for 75 percent of the total marks. He submitted that the two grievors’ applications were very strong in respect of each of these 3 criterion. Both received 2, 1 and zero respectively for criteria 1, 2 and 3. The union’s position is that given their long employment history as Transportation Enforcement Officers, they should have received higher scores. It was particularly submitted that the grievors should have received 3 (“meets all”) for criteria 1.

19The union contended on behalf of Mr. Lepage that he had experience working with industry clients and the public, and had conducted on-site audits of large and small transportation businesses. It was suggested that Mr. Lepage’s material indicated that he had experience working in mines, and he had testified that while working in mines he had become familiar with the health and safety requirements related to working in mines.

20Mr. Lepage had been employed as a Transportation Enforcement Officer 2 with the Ministry of Transportation from 1988 to 2002. From 2002 he has worked as a Transportation Officer 3. Counsel submitted that in those positions, Mr. Lepage had acquired extensive skills and experience in investigation and enforcement, interpretation and application of legislation, court and legal processes such as preparation of charges and crown briefs under the Provincial Offences Act.

21Similar submissions were made on behalf of Mr. O’Brien, who had been a Transportation Enforcement Officer with the Ministry of Transportation for more than 20 years. Counsel pointed out that both grievors had indicated in their applications that they had completed the Provincial Officer Designation/Compliance Course offered by the Ministry of the Environment in 2008. That course had provided them with knowledge about statutes relating to the protection of the environment and performing environmental assessments. It was alleged that the grievors did not receive credit for that course. Union counsel took issue with Ms. Cooper’s testimony that the grievors had not set out the content of this course, and that she was not familiar with that particular course. Counsel suggested that Ms. Cooper had been inconsistent in that she failed to give credit to the grievors because the course content was not set out, but gave credit to another applicant for listing a negotiation course without setting out the course content.

22Counsel also was critical of Ms. Cooper for giving credit to applicants for knowledge and experience which were dated. It was argued that Mr. O’Brien did not receive appropriate credit for the extensive negotiation skills he had acquired in his role as local union president. Counsel referred to Ms. Cooper’s testimony where she stressed the importance of technical knowledge related to the mining industry, mine closure, and a background and experience working with environment and mining related legislation and regulations. Counsel questioned the need for that technical knowledge specific to the environment and mine closure, and suggested that Ms. Cooper was exaggerating the importance of that technical knowledge in an attempt to justify her decision not to interview the grievors.

23It was apparent that the primary reason for the exclusion of the grievors from the interview process was their lack of knowledge and experience related to the mining industry, the closure of mines, and legislation, regulations, policies and procedures related to those. On a review of the position specification and the job posting, the Board cannot agree with the union that Ms. Cooper’s emphasis on the need for technical knowledge and experience related to mining was unwarranted or unreasonable. The job posting states that the Ministry was seeking an “individual with strong technical knowledge and negotiation skills for a key role in the Mine Rehabilitation Program”. The job posting included a number of skills such as coordinating compliance audits, enforcement activities and preparation of court documents, which were indicated in the grievors’ applications. However, as Ms. Cooper testified, they all were unrelated to mines and mine closure/rehabilitation. In order to perform those duties effectively, the pre-condition is that the individual must have “strong technical skills”. This is confirmed in the qualifications set out in the job posting. It requires “knowledge of mining and exploration, as well as the ability to interpret and apply mining and other related legislation”. It calls for “ability to interpret and apply mine rehabilitation legislation, as well as knowledge of mine rehabilitation theories and practices”.

24The “purpose of position” is set out in the position specification as “To carry out compliance reviews/non-compliance investigations and related enforcement duties of mine rehabilitation plans designated for health/safety, environmental protection and reclamation of mined out land to coordinate closure plans”. The “knowledge” required includes, “Thorough knowledge of mining and exploration, mining legislation, theory and practices related to mine rehabilitation …”.

25There is no question that the grievors have significant experience in investigation and enforcement duties. However, the job posting and the position specification does not require a general ability in that regard. The performance of those investigation and enforcement duties are premised on the presence of a thorough knowledge relating to mine closure and rehabilitation and governing legislation, theory and practice etc. As the Board stated in Re Tully, 1622/87 (Kirkwood) at p. 7, the employer “may limit the pool to be interviewed to those candidates who indicate that they are most likely to have the qualifications and ability to perform the job, as opposed to having qualifications and ability in an abstract form”. In Re Cheng, 179/79 (Verity) at p. 4, the Board observed:

There are, two other features of Article 4 which bear upon the resolution of this grievance and which, therefore, merit our comment. In the first place we would draw attention to the fact that by its terms Article 4 instructs the employer to give ‘primary’ consideration in effecting a decision under its terms, to the qualifications and ability of the applicants to ‘perform the required duties’. That is to say not only must those two factors assume a predominant position in the employer’s selection under Article 4, but as well those factors must relate to the actual duties of the position. In short it is the applicant’s qualifications and ability to perform the required duties of a Data Entry Operator 3, and not their ability and qualifications in the abstract that is the primary and material consideration that should underlie a determination made under Article 4”.

(Emphases added)

26The grievors, given their background, would very likely have the aptitude to acquire the required technical knowledge if appointed to a CO position with the employer. However, that is not the test when considering the appropriateness of their exclusion from interviews. In Mr. Lepage’s application material, the only mention of mining is to the effect that from 1978-79 he worked at GECO Noranda in Manitouwadge, as “Slusher Operator, Backfill Operator”, and that from 1976-1978 he worked at INCO, in Shebandowan, as “Cage Tender, Mechanic”. His duties and responsibilities in either of those positions are not mentioned. There is no explanation as to how that employment relates to any of the requirements in the CO job posting or position specification. Mr. O’Brien’s application makes no reference whatsoever to any experience or knowledge related to mines. Even taking into account the testimony of the grievors, there is no evidence that either grievor had the “knowledge” required in the position specification.

27The Board also does not agree that the grievors were treated differently than other applicants. Union counsel, through skilful analysis and argument, suggested a number of areas where other applicants could have received lower scores and where the grievors may have received higher scores. While the Board agrees that some of those arguments may have merit, that is not a sufficient basis for it to intervene. The Board is satisfied that the screening process undertaken by Ms. Cooper overall was fair and reasonable. As the Board has repeatedly stated, it does not expect perfection from the employer in the manner the screening process is carried out. If the process is fair and reasonable overall, the Board ought not intervene. In the present case the Board concludes that, while the various applications in its view could have been scored somewhat differently in several areas, it ought not replace its opinion to that of the employer. There is no suggestion that Ms. Cooper in anyway acted in bad faith. Overall she acted fairly and reasonably, and the Board cannot conclude that the result of that process was incorrect.

28In the circumstances, the Board declines to interfere with the results of the screening process, and both grievances are hereby dismissed.