GSB#2009-1594, 2009-1595, 2009-1596

UNION#2009-0615-0001, 2009-0615-0002, 2009-0615-0003

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Hogan/Paul/Montgomery)

Union

• and -

The Crown in Right of Ontario (Ministry of Community and Social Services)

Employer

BEFORE

Nimal Dissanayake

Vice-Chair

FOR THE UNION

Mark Barclay Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Cathy Phan Ministry of Government Services Labour Practice Group Counsel

HEARING

August 16, October 18 & 27, 2011.

Decision

1The three grievors, Ms. Giselle Hogan, Nancy Paul and Sharlyn Montgomery have filed individual grievances alleging that the employer had contravened article 6.3 of the collective agreement by not appointing them to the position of Income Support Specialist (“ISS”) following a job competition in July 2009.

2The Board was advised that no third party notices were issued since there was no possibility that any of the incumbents will be affected by the outcome of this proceeding, given the remedy sought by the union.

3Four ISS positions at the Ontario Disability Support Program (ODSP) Office in Sudbury, Ontario, were posted as “open”. A selection panel consisting of three Income Support Managers conducted the competition process on four consecutive days from July 6 to 9, 2009. Twenty applicants, nine internal and eleven external, participated. At the time the grievors were employed as Client Service Representatives at the ODSP office where the ISS vacancies arose. Their continuous service dates were, July 3, 1986 (Ms. Hogan), April 30, 1987 (Ms. Paul) and February 13, 1993 (Ms. Montgomery). The four successful applicants were also internal candidates. They had less seniority than the grievors, except that Ms. Montgomery had less seniority than the fourth ranked incumbent.

4The selection process consisted of an oral interview worth 65 points, a presentation worth 20 points, a written exercise worth 10 points, and a math exercise worth 10 points, for a total of 105 points. Based on the panel’s evaluation of the applicants’ performance in the four part process, the positions were awarded to the top four scorers who obtained 92.77, 90.03, 84.6, and 80.5 out of 105 respectively. Ms. Paul finished 14^th out of the twenty applicants with a score of 61.13, Ms. Montgomery 17^th with 54.8 points and Ms. Hogan 20^th with 35.97. In order to be considered qualified for the ISS position, the employer had established a bench mark of 75 percent. The grievors’ scores translated to 58 percent (Ms. Paul), 52 percent (Ms. Montgomery) and 34 percent (Ms. Hogan) and thus were well short of that bench mark.

5The only employer witness to testify was Ms. Sana O’Kane, one of the three selection panel members. She testified that the resumes submitted by the applicants were reviewed for the purpose of screening the applications to determine whether applicants would be invited to participate in the selection process. While all applicants were asked to provide two references, references were done only for those who achieved the 75 percent bench mark in the selection process. Anyone who did not achieve the bench mark was deemed disqualified from further participation. Thus, the employer did not review their personnel files or performance evaluations and no reference checks were done for them.

6In its opening statement the union challenged the propriety of the competition on several grounds. First, it was alleged that there were several fatal flaws in the selection process. Second, it was suggested that there were “some elements of bad faith” involved. Third, the union took the position that the employer had contravened a memorandum of agreement dated January 15, 2010 by posting the four ISS positions at issue on an “open” basis.

7It suffices to note that the union appeared to abandon its bad faith argument in that Mr. Barclay did not even mention “bad faith” in his final submissions. In any event, the Board finds that there is not an iota of evidence supporting an allegation of bad faith on the part of the employer.

8The union’s argument based on the memorandum of agreement is without any merit. That memorandum was signed off in January of 2010, well after the completion of the job competition and even the filing of the instant grievances. Moreover, the obligation on the employer under that memorandum to post vacancies “restricted to regular staff in ODSP” is explicitly stated to be ‘effective February 15, 2010”. The instant posting closed on June 6, 2009. Therefore, the memorandum could not possibly have any application to this posting.

9That leaves for consideration the flaws in the selection process alleged by the union. In this regard the union led the following evidence.

Relevance of oral interview questions

Ms. Hogan testified that question 1 was not relevant to the ISS job and that it was more difficult to answer because it consisted of three parts. She opined that the question “could have been phrased differently as just one question”. Question 4 read “Tell us about a time when you had to defend a decision you made even though others were opposed to your decision. Tell us how you handled the situation. What did you learn from this and what would you have done differently”. Ms. Hogan testified that the situation contemplated in the question ‘really doesn’t happen all that often”, and as a result she did not have a clear answer. The only other negative comment Ms. Hogan made with regard to the oral interview was to the effect that she was not sure whether she received proper marks for her answer to question 6. In cross-examination, Ms. Hogan conceded that in the five years she had worked as ISS on a temporary basis, she had to analyse information as contemplated in question 1. Similarly, she agreed that during those five years she had to defend decisions she made, but commented that “it does not happen on a regular basis” because she was easy to get along and avoided confrontation.

10Ms. Montgomery testified that she had no issues with the interview questions or the points assigned. However, she testified that as soon as she walked in for the interview, panel member Joanne Leroux questioned her about her absenteeism. She was taken by surprise and wondered what her absenteeism had to do with the oral interview.

11Ms. Paul during her testimony raised no issues or concerns with regard to the oral interview.

12The bench mark of 75 percent

During cross-examination of Ms. O’Kane, Mr. Barclay suggested that the bench mark was “higher than normal” and asked why it was set at 75 percent. Ms. O’Kane replied that since the ISS position is very demanding, highly paid and serving vulnerable clients, the employer wanted to ensure that it hires only highly qualified applicants. Mr. Barclay pointed out that when the ISS position was subsequently rolled into the position of Caseworker and posted, the bench mark was set lower, and asked Ms. O’Kane to explain the difference. Ms. O’Kane testified that the bench mark for the Caseworker posting was set provincially, while it was set by local managers for the ISS posting, and they opted for a 75 percent cut-off in their discretion.

13The presentation

The evidence is that on the afternoon of Thursday July 2, 2009 all applicants were provided with a sheet containing instructions relating to the presentation they were expected to deliver the following week. That sheet provided as follows:

As part of the interview process, you must come prepared to give a 10 minute (maximum – you will be timed) power point presentation to the interview panel on the following:

Topic:

Describe in detail the elements you believe are required in a client service environment that would enhance the customer service experience for disabled clients?

Other Instructions:

You will be presenting this information to the interview panel during the first 10 minutes of your interview.

You will have access to a computer equipped with PowerPoint, and an InFocus project for your presentation. Bring three (3) paper copies of your presentation to distribute to the interview panel.

You will be marked on the presentation content, your presentation style/skills, communication skills and ability to convey information within the allotted time (10 minutes).

14Ms. Hogan testified that when she read that applicants “must come prepared” to give a power point presentation, she was concerned because she had no experience with power point, and she had little time to prepare. She believed that she would be evaluated on her power point skills. Therefore, she spent all of her time Friday until midnight on Sunday preparing her presentation on power point. That left her little time to prepare for the rest of the selection process. Ms. Hogan testified that since she became a Caseworker, she had occasion to make power point presentations. However, she did not have to prepare the presentation. She only made the presentation prepared for her by someone else. Ms. Hogan testified that when time came for her presentation she could not get the information up on the screen because of a defect with the computer provided by the employer. Ms. Hogan testified that despite all of the effort she had put in, she had to make the presentation using paper copies.

15Ms. Montgomery testified that her interview was on Wednesday July 8^th and she received the presentation assignment on Thursday July 2^nd. She stated that she had never had to make a power point presentation during her employment at the ODSP office. Upon reading the instructions she understood that doing a power point presentation was a mandatory part of the selection process. Therefore, she purchased a book from Staples and spent considerable time working on her power point presentation. However, the computer the employer made available did not work. As a result the presentation was made using paper copies. When asked whether she feels that her inability to make the presentation using power point “hurt her marks”, she replied, “it couldn’t have helped my score. Once you practise one way and you cannot do it that way, there is a lag”. She also testified that since she became a Caseworker she has used power point, but only to give the presentation of material prepared on power point by someone else.

16Ms. Paul’s interview was on Thursday July 9^th. When she received the presentation assignment on July 2^nd, she worked on her power point presentation all week-end because she had no prior experience with power point. She testified that she had no problems with the power point presentation and had no complaints about it.

17The math exercise

The union took the position that questions 6 and 8 in the math exercise were not relevant to the ISS position. The questions were in multiple choice format, and read as follows:

6. Mr. Bobcat, a high school history teacher is determining the average test score for a recent test given to his students. The test was marked out of 10 marks. He has 14 students in his class and the test marks were as follows:

What would the average mark for the history class be if you do not include the highest and the lowest mark in the average?

Student A received 4/10 Student H received 3/10

Student B received 3/10 Student I received 9/10

Student C received 7/10 Student J received 7/10

Student D received 5/10 Student K received 5/10

Student E received 8/10 Student L received 10/10

Student F received 6/10 Student M received 4/10

Student G received 2/10 Student N received 1/10

8. Stephen is 17 years old and his sister Gwen is twice as old. When Stephen is 23 years old, what will be the age of his sister Gwen?

18Ms. Hogan testified that the math questions were more like an aptitude test. She stated that while an ISS is required to perform various calculations, ISS work does not include calculation of ages or student marks. Therefore, she did not see the relevance of the questions to what an ISS does on a daily basis. She opined that a better question would have been “how do you calculate a client’s earnings if he makes X amount a month and how much will X’s receive in income support”.

19Ms. Montgomery, when asked whether she had any comment about the math exercise, stated “It was math yes. But it didn’t really relate to the day to day activity of an ISS”. When asked whether she ever had to do a calculation of ages as in question 8 while working as an ISS or Caseworker, she replied “no”.

20Failure to provide Ms. Montgomery with a podium for her presentation

Ms. Montgomery testified that when she received the presentation instructions on July 2^nd, she requested from “government services” that she be provided a podium for her to place her notes during the presentation. Two days later she was informed that a podium was not available. When asked why she requested a podium, she explained that she had planned to make the presentation standing up, and that due to a visual disability she had to have her notes at eye level. Since the employer did not provide a podium, she took a stand with her. In cross-examination she agreed that she did not use a podium when making presentations at work, but explained that she makes her presentations at work while seated. She agreed that at the interview she was not told that she had to stand during the presentation.

21Unfair advantage to some internal applicants

The union filed in evidence a document entitled “Operating Procedures for use of I&IT Resources”. Ms. Montgomery testified that “there were some internals who used government technology and government time to prepare for the presentation”. She stated that those internals were able to review their presentations with other staff and have their input. She did not have that benefit because she prepared her presentation at home on her own time. Based on this evidence, the union suggested that some applicants obtained an unfair advantage over the grievors by using government resources contrary to policy.

22Failure to consider past performance, resumes, personnel files, performance evaluations and reference checks for all applicants

Through the testimony of Ms. O’Kane, the following was established.

• The applicants’ resumes were reviewed only for the purpose of screening applications for interviews.

• Reference checks were done only for those applicants who achieved the bench mark score of 75 percent in the selection process. As a result no reference checks were done for three grievors.

• No performance evaluations or any of the contents of personnel files were reviewed by any of the selection panel members.

23The employer disputed all but one of the allegations. Counsel admitted that the employer’s failure to assess the applicants’ resumes, personnel files, and performance evaluations, and its failure to perform reference checks for all applicants were flaws. However, counsel submitted that based on the evidence, the Board should conclude that the result of the selection process would have been the same, even if the employer had avoided those flaws. It was her position that in the circumstances, the remedy at the most should be a declaration that the collective agreement was contravened.

24The union disagreed. Mr. Barclay submitted that due to all of the defects in the selection process, the results were not a reliable indication of the relative qualifications and ability of the applicants. He stated that under usual circumstances, the evidence would lead to the Board to order that the competition be re-run. However, all three grievors had subsequently successfully competed for positions of Caseworker, which was in essence the same position as ISS and had the same pay rate as ISS. In the circumstances, the union submitted that the Board should order that the grievors be compensated for their monetary losses from the date of the appointments pursuant to the instant posting, and the dates when each of the grievors obtained their present position of Caseworker.

25On a review of all of the evidence before it, the Board is satisfied that the interview questions were appropriate. As Ms. O’Kane explained during testimony with reference to the ISS position specification, the disputed questions are directly related to ISS duties. On cross-examination the grievors conceded that. It became apparent that the complaint was not about relevance per se, but the grievors concern that the circumstances envisaged do not arise frequently, and that the questions could have been worded or structured differently. Neither reason makes the questions not relevant or otherwise inappropriate.

26The allegation with regard to the 75 percent bench mark has no merit. While the union referred to a “normal” bench mark, there is no evidence that there is an established normal bench mark. The bench mark applied to all applicants. Ms. O’Kane’s explanation as to why the bench mark was set at 75 percent was logical and reasonable.

27The evidence is clear, and the employer conceded, that power point is not a skill required by the ISS position specification. Ms. O’Kane’s testimony that power point skills per se were not evaluated or scored was not challenged. While Ms. O’Kane testified that the employer did not consider it mandatory that applicants do their presentations using power point, she conceded under cross-examination that the wording in the instruction sheet could reasonably be read as two of the grievors did, i.e. That they were required to do the presentation using power point, and that their power point skills would be evaluated. The employer did not provide an explanation as to why use of power point was made a part of the presentation in the first place, when that was not a skill expected of an ISS, and the employer had no intention evaluating that skill. The result was that applicants like Ms. Hogan and Ms. Montgomery who did not possess that skill unnecessarily spent valuable time learning power point presentation skills. The Board does not have evidence indicating that the defective computer adversely impacted on the grievors because that enabled them to make their presentation without resort to a technical skill they did not have. However, the Board finds that in the long run, they, along with other applicants who lacked power point skills, would have been disadvantaged because they were left with little time to prepare for the rest of the competition process. Applicants with skills in power point – a skill unrelated to the ISS position – would therefore, have had an unfair advantage, since they would have had more time to prepare for the other component parts of the competition. Although unintended, that would have been the result.

28The union’s criticism of the math questions is without merit. The grievors admitted, and the ISS position specification confirms, that performing complex math calculations is a core function of the ISS position. Whether the exercise is based on fictional ages of persons, examination marks of students or, some other units, it is the math calculation skills that was relevant to the ISS position, and it was that skill that was evaluated. As Ms. O’Kane explained, the purpose of the questions was to test the math skills. Ms. Hogan was correct that the questions were more like an aptitude test. However, given the requirement of math calculation skills for an ISS, it was not inappropriate to evaluate the applicants’ aptitude in that regard.

29Mr. Barclay in his final submissions characterized Ms. Montgomery’s request for a podium as a “request for accommodation”. However, there is no evidence that Ms. Montgomery made the employer aware that she had any disability or that she needed the podium as an accommodation for a disability. The extent of her testimony was to the effect that she requested a podium to place her notes during the presentation. While she testified that she needed the podium due to a visual disability, there is no evidence that the employer was made aware of that at the time of the request. In any event, there is no evidence that the absence of an employer issued podium disadvantaged her in making the presentation.

30The Board only has a general allegation that some internal applicants misused government technology and time in preparing for the selection process. Particulars as to the individuals who allegedly violated government policy, what technology was misused, when it occurred, and how Ms. Montgomery was aware of the alleged conduct remains unknown. Moreover, there is no suggestion that Ms. Montgomery or anyone else complained to the employer, or that the employer was otherwise aware of the alleged misuse. In the circumstances no weight can be attached to that evidence.

31This brings the Board to the crux of the union’s case. The standard expected of an employer in conducting a job competition has been long established and applied by the Board in a multitude of decisions. Rather than engage in another review of the jurisprudence, I quote from Re Boucher, 2010-0571 (Dissanayake) a decision issued as recently as October 19, 2011. At paragraphs 28 to 29, the Board wrote:

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:

1. Candidates must be evaluated on all the relevant qualifications for the job as set out in the Position Specification.

2. The various methods used to assess the candidates should address their relevant qualifications insofar as it is possible. For example, interview questions and evaluation forms should cover all the qualifications.

3. Irrelevant factors should not be considered.

4. All the members of a selection committee should review the personnel files of all the applicants.

5. The applicants’ supervisors should be asked for their evaluations of the applicants.

6. Information should be accumulated in a systematic way concerning all the applicants.

[32]

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).

33In the same vein, in Re Sauve, 1695/91 (Gray) at p. 19 the Board wrote:

The Board has repeatedly observed that qualifications and abilities should not be assessed solely on the basis of an applicant`s performance during the selection process. Past job performance, particularly of similar job functions, must also be considered and given appropriate weight. The board has found Article 4.3 contravened when the selection committee relied exclusively or unduly on interview results and gave too little or no weight to past performance in assessing qualifications and ability: Christmas and Chaput, 907/86 (Gandz); Skagen and Glemnitz 1934/87 (Springate); Poole, 2508/87 (Samuels); Hall/Powers 716/89 (Gorsky). It is not enough to treat past related experience as a basis for pre-interview screening and ignore it thereafter – past related experience must be given weight in assessing the relative qualifications and abilities of the final candidates: Nixon 2418/87 (Fisher); Mcllwain, 628/89 (Verity).

34Given the clear, consistent and repeated pronouncements the Board has made over many decades, it is beyond comprehension why the employer fails to comply time and time again. There can be no doubt that the employer in this instance has utterly failed to comply with the expected standard in article 6.3. For some unexplained reason the application material submitted by the three grievors was not filed in evidence. Therefore, there is no evidence before the Board as to what, if any, information about their past performance in various positions in the ODSP office, (including performance in the ISS position for varying periods) was included. However, even if the applications included little or no information, the evidence is that the three panel members were familiar with the grievors, who at the time were, and for several years previously had been, employed in the very office where the vacancies arose. Besides, a review of their personnel files, if carried out as required by the jurisprudence, would have surely disclosed their employment history with the ODSP office including their temporary assignments in the position of ISS. As the Board has repeatedly held, the employer is required to assess the grievors’ past work performance as part of the evaluation of their qualifications and ability for the posted positions. The employer`s failure to do that, along with its failure to assess the resumes and perform reference checks for all applicants results in a contravention of article 6.3.

35Having reached that conclusion, the Board must determine the appropriate remedy. The mere fact that a job competition was defective does not lead to a substantive remedy. In Re Naczynski 2003-3124 (Abramsky), the Vice-Chair engaged in a useful review of the Board’s jurisprudence on remedy in job competition cases, and at p. 22 summarized 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.

36At p. 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.

37In the present case, while the Board has found some short-comings in the selection process with regard to the power point presentation, that is not a sufficient basis to disturb the results of the process. What makes the process defective, and therefore unreliable, however, is the employer’s failure to assess other information relevant to the qualifications and ability for the posted ISS positions. Therefore, the Board must on a balance of probabilities determine based on the evidence before it, whether the grievors would or could have demonstrated relative equality to the incumbents had the competition been done in compliance with the required standard.

38The union explicitly stated its position that in the particular circumstances of this case an order for a re-run of the competition was not an option and that it was not seeking such an order. Its remedial request is for compensation for monetary losses. That remedy would obviously flow only if the Board is able to determine on balance that if the employer had done what it failed to do, i.e. assess resumes and personnel files and carry out reference checks for all applicants, the grievors would demonstrate relative equality to the incumbents in qualifications and ability related to the posted ISS positions.

39As the case law cited above has held, the onus is on the union to prove on a balance of probabilities, that the grievors would have demonstrated relative equality, if the defects had been avoided. As held in Re Sauve (supra) a grievor who claims that he or she would have been a successful candidate has the onus of putting the missing information before the Board to support the claim.

40Considering the totality of the evidence before it, the Board in the instant case has no basis to conclude that any of the grievors would have been entitled to appointments, if the employer had properly assessed all of the relevant information. There is very sparse information before the Board in that regard. The “missing information” which the employer failed to consider, was not put before the Board to show that it would have made a difference. The only evidence that the Board received, came about through the testimony of the grievors about the various positions they held in the OPS, including in the ODSP office. They also testified about their respective temporary assignments in the ISS position for varying periods. Thus the extent of the evidence is to the effect that the grievors held certain positions for specific periods of time. The mere fact of employment, however, does not assist in establishing the grievors’ qualification and ability in relation to the posted ISS position. Most striking is the absence of any evidence, viva voce or documentary, indicating whether or not the grievors’ work performance, particularly in the position of ISS itself, was good or bad. The grievors’ application material, resumes, performance evaluations or any material from their personnel files, were not made available to the Board. Nor was any material indicative of the qualifications and ability of the four successful applicants submitted in evidence. In the circumstances, the union has not met its onus of proving on a balance of probabilities that the grievors would have been relatively equal to the incumbents in qualifications and ability. The Board has no evidence upon which to reach such a conclusion. Therefore, there is no basis for awarding monetary compensation to the grievors.

41Since there is evidence that the grievors had been employed in the ODSP office for significant periods of time, and had performed in the position of ISS itself, there is a basis to conclude on a balance of probabilities that they could have been found to be relatively equal but for the defective process. However, such a finding would not lead to the remedy sought by the union, which is necessarily predicated upon a finding that each of the grievors would have received appointments if the competition had been properly conducted. It could only lead to an order that the competition be re-run. That is a remedy the union has explicitly declined in the particular circumstances of this case.

42In the result, the Board allows the three grievances. It declares that the employer contravened article 6.3 by failing to properly assess all of the information relevant to the qualifications and ability related to the posted positions. No additional remedial orders are appropriate and none are made.