GSB#2010-3061
UNION#2010-0502-0091
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Isaacs) Union
- and -
The Crown in Right of Ontario (Ministry of Government Services) Employer
BEFORE
Bram Herlich Vice-Chair
FOR THE UNION
Jane Letton Ryder Wright Blair & Holmes LLP Barristers and Solicitors
FOR THE EMPLOYER
Stewart McMahon Ministry of Government Services Labour Practice Group Counsel
HEARING
June 4, 2012.
Decision
1The grievor in this case alleges that the employer has violated the collective agreement by not awarding him the position of Graphic Design and Print Operator.
2The position was posted in August 2010. A job competition followed and the job was then awarded to the incumbent, Mr. Morgan, who attended the hearing in this matter and was provided with the opportunity to participate therein.
3The parties have referred this matter for determination by way of the mediation-arbitration process contemplated in the collective agreement. Consequently, while it will resolve the instant dispute, this decision will be entirely without precedential value. The parties also agreed that, in the interests of expedition, my reasons in this decision should be summary in nature.
4The employer received hundreds of applications for the position in question (from both internal (like the grievor) and external (like the incumbent) applicants). From those, the employer selected those it viewed as the six top-rated applicants to progress through the job competition process. The grievor, who was actually in the position in question at the time (on an acting basis), was the top rated of those six (that evaluation was based solely upon the materials filed by the applicants in support of their applications).
5The job competition process that followed was comprised of an interview and a practical assessment (the latter based on the completion of a small design assignment performed by each of the applicants).
6The ultimate assessment performed by the three-person job competition panel resulted in the incumbent being rated as first of the six with a final score of 46.25 (the denominator is not entirely clear) compared with the applicant whose final score of 30.75 ranked him fifth of the six applicants. While there is some mystery (neither identified nor addressed by the parties) in the manner of computation, there is no doubt that, whatever formula might be applied to the raw score numbers, the incumbent’s rating was far superior to that of the grievor (indeed, even well beyond the 10% differential sometimes seen as a proxy for relative equality).
7The union advanced a number of challenges to the propriety of the job competition process.
8The employer conceded that at least two of those challengers are legitimate – for it failed to check the grievor’s references and neither did it review his internal performance plans. And it acknowledged that this Board has noted, particularly with respect to internal candidates, that it is important to look at such materials even in addition to interview/test results. However, the employer asserted that, even if it had not committed those improprieties, there is no reason to believe that the grievor’s standing in the process could possibly have been improved to the point where he would have been found to be relatively equal to the incumbent and thereby entitled to claim the position on the basis of his seniority.
9The union asserted other shortcomings in the process. Among those, was the claim that it was improper for the grievor's immediate supervisor to have been, as he was, a member of the three-person selection panel. Approximately one year prior to the job competition process, the grievor filed a WDHP complaint regarding some statements the supervisor was alleged to have made. The WDHP process apparently vindicated the grievor's position and found that the supervisor's comments were inappropriate. The grievor also pointed to a single subsequent incident in which he asserts that the supervisor's response to him was inconsiderate and insensitive.
10In relation to this point, the employer underlines the fact that, among the three panel members, it was actually this very supervisor who scored the grievor highest, hardly supporting any claim that the supervisor either had or acted upon any improper negative bias towards the grievor.
11I am satisfied that, had the grievor objected to the participation of the supervisor on the panel – something he failed to do at the time, despite being aware of the supervisor’s participation prior to the commencement of the interview process – it might have been appropriate for the employer to respond to that concern.
12In all of the circumstances of the case, however, I am unable to conclude with any certainty that, had all of the defects alleged by the union (including the dubious claim that one of the panel members ought not to have been included by virtue of lack of experience in his own position) been absent, the grievor would clearly have been the successful candidate.
13On the other hand, I cannot ignore the employer's frank concession that there were some defects in the process. And while I cannot conclude that the grievor would otherwise have been the successful candidate, neither can I clearly and unequivocally exclude that possibility.
14In the circumstances, it appears to me that the appropriate response is to direct that the employer rerun the competition (as between the grievor and the incumbent only).
15I therefore hereby direct the employer to do so and I also direct the parties, in view of the particular demands of the resulting new competition, to meet or communicate through counsel, with a view to formulating an agreement with respect to the parameters and manner of conducting the new competition. I will remain seized should there be any outstanding issues regarding the process to be followed in order to comply with my direction that the new competition be held.
Dated at Toronto this 21st day of June 2012.