GSB#2006-1469

UNION#2006-0722-0002

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (McDonald)

Union

• and -

The Crown in Right of Ontario (Ministry of Environment)

Employer

BEFORE

Loretta Mikus

Vice-Chair

FOR THE UNION

Ed Holmes Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Jennifer Richards Ministry of Government Services Labour Practice Group Counsel

HEARING

April 2, 2007, December 8 & 9, 2009, April 26 & 27, November 9 & 10, 2010 March 29, October 26, 2011.

Decision

1In August of 2005 the Employer posted a vacancy for a Regional Program Officer in the classification of an Environmental Officer (EO) 4. The grievor, Cheryl MacDonald, applied for the job but was denied an interview. She has asked that the Board issue a declaration that the competition was flawed and an order that she be placed in the position with full retroactivity.

2The Employer took the position that it had conducted the selection process in accordance with the collective agreement. This was a senior EO position and it was entitled to select the most qualified person. The grievor was an Administration Assistant at the time and the Employer determined that she lacked the minimal qualifications for the position. The job specifications reflected the duties of the position and stated that the successful applicant must have extensive computer skills and knowledge of environmental legislation and its applications. There were eight applicants and each was comprehensively screened for the required criteria. The threshold score was 60% and the grievor’s score was 43%. She lacked the computer skills and analytical background to qualify for an interview.

3The Union took the position that the grievor was unfairly and improperly denied an interview. It asked that she be placed in the job retroactively to the date of the posting. It suggested that, given the length of time the incumbent has been in the position the Employer should place him in a similar position.

4The Union asserted that the Employer is required to ensure the applicants are considered for the job based on criteria that relate to the duties of the position. In this case it claims that the Employer has elevated the requirements of the position from those set out in the job specification. For example, the job specification requires knowledge of computer software including GIS (Geographical Information System), Access and M-S Front Page. In the job posting the Employer asked for an extensive background in GIS, website software, MS Access, database and data analysis. The requirements in the posting are more demanding than the job specification. That is one flaw in the Employer’s process.

5In addition, the Union submitted that the scoring of the criteria was defective. The grievor was not given enough credit for her past experience and, had she been scored properly, she would have passed the threshold of 60%.

6Ms. Nathalie Osipenko is the Supervisor of Program Services for the Northern Region. The unit is responsible for program management and development for commercial and industrial sewage. The key duties of her position include managing the unit’s budget, staffing and workload. She is responsible for the public reporting of discharge. The jobs within the unit involve policy and field work staff whose responsibility it is to make sure its policies can be and are implemented. In the past she had been an EO 2 for industrial regulations in waste water, an EO 4 Abatement Officer in the district and an EO 5 Program Coordinator. She had also done special assignments over the years. She developed the job information package which formed the criteria, advertised the position, screened and interviewed the candidates.

7Initially the job was situated in the Assistant Director’s office but is now part of Program Services. There are 22 District and Area Offices. This particular job posting was for a job in the District Office and was designed to refer to the duties of that job, which are different from those of the generic job specification.

The job posting stated as follows:

The Assistant Director's Office, Northern Region, requires an individual to work in a diversified office responsible for policy/program development and evaluation.

Duties Will Include. You will; assist with the development and delivery of divisional policies and programs, including maintaining and developing divisional/regional intranet/internet sites, computer programs and databases for tracking and reporting on activities and producing related maps/reports; liaise between and provide technical guidance and training updates to District Offices, regulated companies and head office groups; monitor program activities; compile/analyze information and prepare reports; assist in program/policy co-ordination, development and evaluation.

Qualifications; Extensive background in various computer applications including GIS applications, website software, MS Access, database, data analysis and presentation; good working knowledge of environment legislation and policies, interpersonal, communication, training and presentation skills; analysis and problem solving skills; demonstrated ability to meet deadlines with minimum supervision; valid Ontario driver's license.

The job specifications for an EO4 position are as follows:

Purpose of Position

To provide support and manage information for the development, implementation, coordination and evaluation of Ministry legislation, policy, and programs. To assist with the development and delivery of training programs to regional/district staff. To provide technical guidance/advice to both internal and external clients within an assigned region and/or across the division, to implement site remediation Projects in the region.

Duties/Responsibilities

Job requires: Organizing and consolidating regional/divisional input to the development of legislation, policies and programs and modifications by: obtaining and assessing input; initiating discussion; formulating regional positions. Representing and defending Ministry/regional position on divisional working group/committees and at public meetings, participating in developing strategies in assigned fields; and providing advice and interpretation on Ministry programs, legislation and policies when providing testimony in court.

Assisting in the development and the delivery of training plans to implement legislation, polices, programs and modifications by; analysing requirements; participating in the design and delivery of training programs and schedules; and ensuring manual/materials are updated throughout region.

Managing information by collecting and compiling data within designated time frames for a number of uses, e.g., compliance, checking GIS database, support and preparation of the regional work plan.

Providing support in monitoring and evaluating of program activities e.g. reviewing for consistent and effective delivery throughout region}, and recommending improvements to procedures, processes, resource levels, technology availability and other activities.

Maintaining and developing regional computerized data bases for tracking and reporting on activities and producing related reports. Using computer applications to; prepare technical and administrative correspondence, briefing notes, issue reports and other materials, including statistical reports, graphs, tables, maps and charts on programs.

Assisting in project support activities such as overseeing contracting consultants and conducting various studies and analyses as Provincial Officer and determining project status by carrying out site visits including sampling.

Maintaining and delivering the divisional date programs including customizing company Profiles, retrieving reports, competing corporate updates and validating and transferring data to central database.

Knowledge

Job requires knowledge of environmental legislation( Environmental Protection Act, Ontario Water Resources Act, Pesticides Act, Environmental Assessment Act} and related regulations, policy and Program development {e.g. Electronic Time Accounting System, development of Procedural documents for the usage of control instruments and guidance material and provide to Regional District staff) and to monitor and assess compliance with reporting requirements for industrial and municipal discharges by checking against legislative requirements. Job requires knowledge of computer software applications (e.g. Access, M-S Front Page GIS application software) and Ministry data management system in order to; provide technical advice on their use to external and internal client groups; to develop and maintain regional data bases and files; analyse data; Produce reports; develop specialized maps; and to review and process data for corporate data files. Job requires knowledge of Ministry programs and the regional delivery approach to determine delivery issues (e.g. inconsistencies in delivery); evaluate and analyse in order to assist in the resolution of issues (e.g. difficulties with data management) to ensure consistency in the delivery across the Region/ Division by developing guidelines/ procedures to ensure consistent handling by all District offices across the Province. Job requires knowledge of training techniques and program development methods, Procedures and techniques to assist in the development and preparation of training material and manuals for the development of new programs, policies and procedures (e.g. time management training/guidance manuals). Job requires knowledge of project management and contaminated site assessment including sampling and cleanup techniques in order to review and comment on remedial plans and analysing the consultants’ findings and propose solutions to comment on the appropriateness of the recommendations in reports.

Skills

Job requires analytical and problem solving skills to; gather and analyse information, develop and graphics charts and status reports, document, issues and identify and evaluate options for resolution (e.g. compliance assessment with municipal and industrial wastewater regulations requirements). Job requires analytical and assessment skills, to evaluate new program and policy proposals to determine their feasibility and viability, estimate and forecast impacts on clients, and stall training needs. Job requires analytical skills to assess technical and administrative issues and develop approaches to guide management (e.g. providing advice to direct dischargers regarding technical and administrative difficulties encountered while using Ministry supplied data management programs). Job requires evaluative and problem solving skills to assist in the development and implementation of program delivery review, (e.g. developing and modifying as necessary the program evaluation procedures); recommending performance criteria to meet the targets identified in the work plan and the Ministry's business plan and requires analytical skills to develop strategies for improvements (e.g. changes to procedures, processes, and technology). Job requires oral communication skills to; make presentations to the public or external clientele at public meetings; technical and non-technical staff; provide testimony on Ministry legislative, policies and positions at legal proceedings due to the office role as Regional/Divisional/Ministry representative on special Projects; discuss technical, administrative and policy issues related to environmental protection and management, Job requires oral communication skills to provide training and advice to clients. Job requires interpersonal skills to; work in a team environment, persuade and develop support of industrial clients and Ministry staff within the region, for new initiatives and Ministry’s position on issues and provide advice and support for implementation of new programs.

Freedom of Action

Job requires working within environmental legislation/ regulations and related Ministry programs, policies and procedures; and working within compliance guidelines, program evaluation procedures, delivery strategies and pollution incident response procedures. Job requires making decisions by; analysing and evaluating programs and problems and determining remedial actions required. (e.g. assess data management problems) and recommend solution to internal and external clients; reviewing technical information and ensuring accuracy of the data collected and identifying/drafting procedural changes. Job requires assisting in preparing regional work plan for review, amendment and approval by the Regional Program Coordinator/ Supervisor work is accepted as technically accurate and is reviewed for adherence to Ministry policy, guidelines, supervisor/manager issues such environmental/ pollution/ procedural difficulties which are complicated by issues where there is public or staff concern and expectations. (e.g. data Program distributed to clients is uncooperative in allowing industry to submit compliance data as per regulation requirements, information from contractors at contaminated site clean-up) from clients that solutions or information be provided in a pre-established deadline.

8The EO 4 classification is considered a frontline position. They implement policy and ensure compliance. For example, an Abatement Officer is an EO4 for abatement policy and legislation in the District. They conduct inspections, respond to calls about spills and obtain approvals. There are between 4 to 10 Abatement Officers in this District and approximately 220 in the Province.

9The job specification set out above is generic in that it lists the job duties of a regional EO4.

10There is one Regional Program Officer in each of the five Regions. They act more as a manager of the program than an Abatement Officer. Each RPO supports four positions. They have had experience as a lead in an EO4 position: they manage the information and need an understanding of the environment and computers to do that. They work with specialists and act as a computer help desk for clients. The support they provide varies from Region to Region.

11Each EO4 has environmental training and job experience to represent the Region and the interests of staff. They develop procedures on how to perform their duties. They know the strengths and weaknesses of the programs. They require computer skills, environmental knowledge, problem solving and analytical skills, good communication skills and the ability to manage their time.

12Ms. Osipenko drafted the qualifications of the position based on the job specifications. She developed the selection criteria on the same basis. She assigned 30% for computer skills. She said the position involved the maintenance and development of the intranet and the internet and the production of related reports and required extensive knowledge of computers. The requirements of the job for knowledge of environmental controls, legislation, policies and programs policies was worth 20%, excellent problem-solving skills another 20%, oral and written communication skills 10%, training and presentation skills 10% and an ability to communicate and manage time 10%.

13She testified that those duties related to the job specifications in several ways. An EO4 manages information by collecting and compiling data, checking GIS data bases, maintaining and developing regional computerized data bases for tracking and reporting on activities and producing related reports. The position uses computer applications to prepare technical and administrative correspondence and briefing notes, issue reports, statistical reports, tables, maps and charts. At the time they were using a DOS based program but were in the process of developing a data base specific for their program. There was no template and the RPO had to use Front Page and be familiar with WIZ computer based programs. They were anticipating a much expanded role for the RPO that would involve more than inputting data but rather using the data to create maps from the data. Because of the volume of the work and the future expectations of mapping from that data, the RPO would be the lead GIS officer in the region and provide support for other EO4’s. Ms. Osipenko acknowledged that they had only used the GIS in that manner a few times since the job was posted.

14Under Knowledge in the job specifications Ms. Osipenko pointed to the requirement for knowledge of computer software applications such as GIS, Access, MS Front Page, and Ministry data management systems in order to provide technical advice on their use to external and internal client groups. An EO4 is also expected to analyse and evaluate programs and problems and determine if any remedial action is required. At the time of the posting the EO4 would manage a large volume of waste water data on an ongoing basis using the DOS system. An EO4 would still be responsible for troubleshooting, but now it is through the intranet.

15Ms. Osipenko allotted 20% for environmental knowledge. The RPO would be required to assist in program/policy coordination, delivery and evaluation. He/she would need a good working knowledge of environmental protections and controls. The position is meant to function as a supporting role with respect to EO5’s.

16The RPO would be expected to compile, analyse, monitor, and evaluate Ministry programs and activities. The scoring of oral and written skills was based on the need for the ability to prepare and compile reports and liase with various employees and provide guidance. The RPO would provide advice and interpret technical reports.

17The final criteria related to the job specification’s reference to training duties, including devising training programs, and the ability to meet deadlines and work independently. They were looking for someone who could demonstrate patience and clarity when answering questions verbally or in writing.

18Ms. Osipenko evaluated the seven applicants on the basis of their written resumes and application letters. She scored the applicants as follows: 3 - meets all requirements; 2 - meets most requirements; 2- meets some requirements and 0 - meets none of the requirements. At the time the recruitment of new employees was being conducted under a pilot project by the Human Resources Department. This job posting was handled by the northern recruitment centre in Sudbury. The scoring was done by them initially and the threshold of 60% was set by them as well. Ms. Osipenko received the results from them but then conducted her own review which resulted in some alteration to the scores but no real change in the final result.

19The grievor was awarded one point for her computer knowledge. Ms. Osipenko read her resume to indicate some experience inputting data and searching internally for data but lacking any experience in creating a website. Her score reflected her view of the grievor as a typical user. Her resume did not show she had any experience with GIS or creating charts and maps. Ms. Osipenko found the grievor’s resume to be sparse on details regarding the work she had done in the past. The grievor was given 2 points for knowledge of the environmental issues. Her resume showed her knowledge of and experience with environmental legislation, policies and procedures. She had taken the Environmental Management Program but she did not clarify whether she had completed it. As a Junior EO she had 6 weeks of environmental training and 3 weeks of compliance training. Ms. Osipenko also gave her credit for her experience at the Action Spills Centre (SAC).

20The grievor was awarded one point for analysis and problem solving skills. Ms. Osipenko found no practical examples of her history in these areas. There were few links between her past experience and problem-solving. She compiled and collected data but there was no evidence of analysis.

21The grievor received two points for oral and written skills. Her resume clearly set out how she had developed her oral skills but did not contain any information or examples about her writing skills.

22Regarding the fifth criteria, the grievor was given one point. Ms. Osipenko felt the grievor’s resume suggested she had some training and experience in presentations but there were no examples or details to assist in evaluating her ability. For the same reason she was given one point for her ability to meet deadlines.

23In contrast the incumbent was given three points for his skill and knowledge of computers. Ms. Osipenko testified that his resume contained detailed descriptions of the data systems he had worked with, the courses he had taken, including 3 college based courses, and the types of systems he had supervised. It stated he had created websites and transferred data to the intranet. He said he had used Lotus and Oracle to analyse data. He had experience with PowerPoint. His resume listed a series of programs he had used that showed his extensive computer experience. He had included a summary of tasks he had performed related to computers which highlighted his strong computer background.

24With respect to environmental knowledge, the incumbent was awarded one point. He had less than a year of focussed experience.

25He received two points for his analytical and problem solving skills. He had described methods and concepts that showed his use of these skills. He had taught these methods to others. He stated he regularly analysed data before preparing reports by using various sources. He set out his experience in technical problem solving and highlighted the positions he had held, including his job duties at Bombardier and the Ministry of Natural Resources.

26The incumbent received three points for his oral and written skills based on Ms. Osipenko’s view that as a crew leader at the MNR he had demonstrated his ability to work as a team member.

27Ms. Osipenko gave him two points for the various types of training he had completed and his knowledge of the concepts.

28Finally, with respect to his ability to meet deadlines, Ms. Osipenko pointed to his resume which contained specific examples of projects he had completed on time and within expectations. He was given three points.

29Ms. Osipenko prepared the short list by reference to the applicants’ scores. There were seven applicants but only four met the threshold and were scheduled to be interviewed. One applicant was not a member of the OPS and was ineligible; another was offered and accepted another position before the interview and another rescinded her application just before the interview. As a result, only the incumbent was interviewed.

30In cross examination she was directed to the job specifications of the EO4 and agreed that both the current and former contained a requirement for GIS knowledge. She also agreed that the job specification for the Regional Program Officer in the Eastern Region and another for the Kingston office did not specifically mention GIS as a requirement. She stated that the Assistant Director had asked her to add the GIS but did not decide to reclassify the position. The plan at the time was to move to more mapping in the future. She also agreed that, to the date of the hearing, it had only been used 3 or 4 times. When it was suggested to her that the job posting asked for higher qualifications than the job specification, she replied that she phrased it to project where she wanted the job to go. Specifically, she wanted someone who could create data bases for the region.

31She acknowledged that the incumbent had been on a secondment in the posted job for more than six months at the time of the posting, which she had extended throughout the posting process. She said that, although the grievor had been using a DOS based system, that did not mean she knew it. There was no reference in her resume of experience with GIS. Ms. Osipenko did not know from her application whether she had experience in managing programs, dealing with the public and preparing reports. She agreed that the grievor was familiar with the Occurrence Report Information System (ORIS) and Environmental Discharges Report Information System (EDRIS). When the grievor referred to experience coordinating the administrative system for six regions, Ms. Osipenko did not think of it as managing a flow of information through computers. She agreed that had the grievor been interviewed, she might have learned these details.

32When she was asked about the grievor’s reference in her resume to having created a tracking system on the Q drive, Ms. Osipenko stated she had interpreted that to mean she had created a place to save notes but not as having created a website. She disagreed with the suggestion that the grievor’s resume indicated more than general knowledge of computers but allowed she would have to learn more about what she had actually done and would have done so if she had been interviewed.

33Ms. Osipenko acknowledged that the grievor was a Power User, which is the designation for one who has been trained to assist others using computers. They are up to date on changes and train other employees on upgrades. Ms. Osipenko said that she did not place much emphasis on the Power User experience.

34She was asked why the grievor had only received one point for her problem solving and analytical skills. She agreed that the grievor’s application showed she had experience handling complaints from clients and the public, which was a form of problem solving. As well, her experience dealing with lawyers and consultants were examples of problem solving. She stated those were not aspects she considered in allotting these points. The grievor’s resume did not say how many times she had used these skills or whether she had been successful. When asked whether the grievor’s experience at the Spills Action Centre had been considered, Ms. Osipenko said she did not have the job specifications of the job at the time. She agreed that the grievor had provided details of her oral communication skills so she was given 2 points. However, Ms. Osipenko did not find the same details about her written communication skills. It appeared from her letter that she had experience in filling out incident reports. There were no examples of her past work.

35With respect to the grievor’s training and presentation skills, Ms. Osipenko concluded from her resume that she had only had one-on-one experience and she was looking for more formal experience. She did allow, however, that the grievor’s application did show her involvement in developing and doing presentations. Finally, despite her experience as an Administrative Assistant, Ms. Osipenko did not see examples of projects she had completed on time under deadlines. She was deemed to meet some of the criteria and given one point.

SUBMISSIONS OF THE PARTIES

36Ms. Jennifer Richards, counsel for the Employer, began by reviewing the facts giving rise to this grievance. It involved a competition for the position of Regional Program Officer in the Assistant Director’s office in the northern region. It was posted on August 12, 2005 and closed September 2, 2005. The grievor was screened out and filed this grievance on December 21, 2005. Several questions are before this Board: was the grievor unreasonably denied an interview and was the screening process to develop a short list consistent with the collective agreement; was the process reasonable and fair and was she scored properly; finally, whether the grievor should have been selected for the job over the incumbent. The onus of proving the process was flawed lies with the Union.

37It was submitted that the Employer is entitled to select only the most qualified candidates. In this case it did when it chose Mr. Lemieux. After reviewing her application letter and resume, Ms. Osipenko decided the grievor did not meet the threshold to make the short list. She came to that conclusion after a comparison between the application documents and the job specifications, particularly the qualifications high-lighted on the posting for this particular job.

38The purpose of the position is to provide support for EO5 employees. The selection criteria were directly related to the job specifications and job posting. The posting and Ms. Osipenko’s evidence clearly show why there was a critical need for knowledge of environmental issues, especially legislation, and extensive knowledge of computers. Ms. Osipenko determined that the successful candidate would need to have a strong computer background, knowledge of the environment and proven analytical skills. Three of the eight job duties contain a computer focus. The successful candidate would be expected to create data bases and maps. He/she would have to be able to extract and manipulate information. The Ministry was anticipating creating digital maps in the future, which was another key expectation of the job.

39The grievor was given one point out of four for her computer skills and knowledge. Her resume said she had set up and maintained system tracking on the common drive and that she was proficient in computer programs. She did not list what programs and gave no examples of her experience. Ms. Osipenko interpreted that to mean the grievor possessed the knowledge and experience of a typical Ministry user but she wanted more. The grievor’s resume did not contain any mention of certificates or courses she had taken to build her knowledge. In short, her resume, it was said, contained no reference to GIS, creating data bases, using analytical concepts or experience in problem solving. She stated she was a Power User but did not provide any information about what that involved. It was up to her to make sure the interviewer had all the information necessary to evaluate her ability. There was no evidence she had used Front Page. Using Word does not necessarily mean knowing Access.

40The Employer asserted she was scored properly on her computer knowledge. A comparison to Mr. Lemieux’s application shows why he achieved a score of three. He stated he had extensive knowledge of GIS and other computer programs and uses. Two full pages of his resume contained detailed examples of his past experience. He specifically said he developed customized computer applications that incorporated GIS software, MapObjects and MapObjects LT and created digital maps for clients. Between 1966 and 2005 he had taken numerous college level courses on aspects of computer programs including GIS and developing a web site.

41Mr. Lemieux was given one point for his knowledge of environmental controls, legislation, policies and programs. He had only worked with the Ministry of the Environment since 2004, primarily in computer related positions. The position at issue required a good working knowledge of environmental matters. The grievor received two points. Ms. Osipenko noted that she had less than a year of direct experience. She had spent six months in a temporary assignment as a Junior Environmental Officer (EO2) but her resume did not specify when. She claimed she had completed the Compliance Training course but did not provide details about the content or duration. She also included reference to the Environmental Management Program but did not say how many courses she had taken or when. Ms. Osipenko took into consideration the fact she had worked as an EO3 in the Spills Action Centre.

42It was submitted that, with respect to the analytic and problem solving criteria, Ms. Osipenko was looking for someone who could meticulously analyse information to find inconsistencies, note trends and troubleshoot. She wanted someone who could make program decisions and pursue needed changes. More than one-half of the Skills section of the job specifications refers to analytical duties. The grievor scored one and the incumbent scored 2. The grievor had stated in her resume that she possessed analytical experience but gave no details or examples. She also mentioned a business management certificate but no further information. The grievor included in her application her experience of analysing data as the Director’s Assistant but gave no details of the extent of her role. Ms. Osipenko believed it had only been for two weeks. Without more information it was impossible for her to evaluate the grievor’s ability. Ms. Osipenko also noted that the grievor never used the term “problem solving” in her application. It was asserted that the incumbent claimed to have well developed problem solving skills and he provided details and examples that related directly to the job duties.

43The Employer asserted that the job posting clearly sets out the reasons why there is a need for strong oral and written skills. The RPO would be expected to prepare reports and represent the Ministry with work groups and the public. The grievor was given two points and the incumbent three. The grievor described her extensive experience with the Union and referred to her mediation and conflict resolution history. Again, the grievor did not provide enough details or examples to evaluate her ability while the incumbent highlighted his written skills extensively, including his community connections.

44Criteria number 5, training and presentation skills, were listed in many sections of the job posting. The grievor scored one point and the incumbent scored two. The grievor’s resume did not make any mention of developing or doing presentations. Her experience seemed to be based on one-on-one training and she did not seem to possess any knowledge of formal presentation principles. Her application did not provide the details Ms. Osipenko was looking for. If the information is not in the application and resume, the assessment of the candidates is impossible. The incumbent carried out daily and weekly training sessions, produced classroom instructions, presented major power point presentations and taught classes to others.

45Regarding the final criteria, Ability to Meet Deadlines, the position required someone who could work independently to meet deadlines and complete projects. The grievor’s resume simply stated she could work without supervision but gave no examples of having done so. The incumbent gave numerous examples and information about his experience in this area.

46The Employer submitted it had conducted the selection process fairly and in a manner consistent with the collective agreement. Ms. Osipenko put her mind to the requirements of the position and it is not for this Board to overrule her assessment. Every competition is unique and it is up to the Employer to determine what is relevant in deciding who should succeed. Ms. Osipenko took her responsibilities seriously. She meticulously reviewed the applications and evaluated their ability on the basis of the information before her. The grievor’s application letter and resume did not indicate she had the experience in computers that the Employer had determined were necessary. She had experience as an Administrative Assistant and six months as an EO2 but that was not enough to overcome her deficiencies in the computer field. It is up to the applicant to ensure that all information is included in her resume in order to put her best foot forward. It is the Employer’s obligation to review the applications and decide who should be interviewed for the position.

47The grievor did not score enough to reach the threshold of 60%. Initially she was only given 17% by the members of the pilot project but was re-evaluated by Ms. Osipenko and upgraded to 43%. She was ranked 6^th out of 8 candidates.

48With respect to the Union’s request that the Board award the position to the grievor, the Employer stated that the evidence proffered by the Union is insufficient to allow a comparison between her and the incumbent. The selection of the successful candidate is based on a complete process that includes an interview and reference checks. In this case neither was done and this Board cannot know how the grievor would have done on either. The Board only has her resume and application letter. If the Board accepts the Union’s argument that she should have been interviewed, the Board should order that she be granted an interview for the next available position. The incumbent has been in the position since 2005 and it would be unfair to remove him from it after all this time.

49In support of its position the Employer relied on the following cases: Re Suave and Ministry of Transportation (1992), GSB # 1695/91 (Gray); Re MacLennon and DeGrandis and Ministry of Government Services (1982), GSB #506/81 (Samuels) and Smith and Ministry of Northern Development and Mines (2007) GSB # 2002-1243 (Mikus).

50Mr. Holmes, counsel for the Union, took the position that the grievor applied for the position according to the instruction and advice she had been given by the Employer. She had attended an OPS training session in the 1990’s to learn how to prepare a resume. It was not as detailed as the incumbent’s because she was told not to provide too much information in her resume.

51The Employer stated that Ms. Osipenko was looking for the best candidate from the applications she had received. The Union took the position that was a major flaw in the posting process because it is the wrong test. The collective agreement directs the Employer to base her decision on the relative equality of the applicants. If they are relatively equal, the most senior candidate succeeds. Only if the junior candidate can show he/she is substantially better than the more senior applicant can she claim the position.

52The Union asserted that this flaw was of such a substantive nature that it tainted the entire process.

53The grievor’s home position was as an OAG 8 but at the time of the position she was acting in an EO3 position in the Spills Action Centre. During her 16 years of service she had performed the duties of several secondments. She testified as to her experience in dealing with policies, procedures and legislation in the MOE and in the Ministry of Labour, the Ministry of Northern Development and Mines and the Office of the Director. She clearly established her superior qualifications regarding policies, procedures and legislation relating to the environment.

54It was submitted the Board had heard evidence that the grievor had been placed in an EO4 position after this posting, which is an indication of her qualifications. That should be of some assistance to the Board in deciding whether to award her the position. She won a competition for an EO3 and an EO4 position based on the same resume that she relied on in the present competition.

55The Union also asserted that the grievor’s completion of the Ministry’s compliance course was undervalued. It is a required course for an Environmental Officer 4 and offers a comprehensive review of the applicable laws and regulations. It includes instructions on briefing notes, giving evidence.

56In the Union’s submission, the posting process contained substantive and procedural flaws. The first one was the emphasis placed on GIS experience and knowledge. It was added as a request from the Assistant Director. It was not a specific feature of the job specification or the job posting. The nature of the position is as an environmental officer, not an IT job. This misplaced emphasis cuts to the heart of the position.

57The second flaw is found in the focus and evaluation of the screening. It was weighted too heavily towards computer knowledge, even more than environmental knowledge. According to the job descriptions, environmental knowledge is the first and most expansive requirement of the position and yet the Employer gave it a 20% value and gave computer skills 30%. That is a substantive flaw. The Employer relied on irrelevant factors. It placed significant reliance on the knowledge of GIS at the request of the Assistant Director. However, the evidence was that previous job postings across the province did not ask for it, the former incumbent never used it and the incumbent in the present case only used it a few times. It was added as a priority because of some plan for the future that never happened. That was an improper consideration.

58Another substantive flaw, it was said, occurred in the establishment of the weighting of the criteria and the cut off score for the interview. Ms. Osipenko testified she did not know the rationale for either. She was told what they would be but had no input and did not know how they had arrived at that decision. Unless the Employer can show there was a rationale for the scoring, it is arbitrary and unreasonable.

59Another flaw, it was submitted, is found in the weight given to the top two criteria, namely computer skills and environmental knowledge. They were given a value of 50% of the total marks, creating a wide gap between points. If the grievor had received another two points, her standing would have changed significantly.

60Finally, it was submitted was the fact that one scorer gave the grievor 17% and Ms. Osipenko gave her 43%. That disparity, in and of itself, is proof of the flaw in the process.

61Mr. Holmes alleged that the screening process was also flawed. The first problem was the fact the scores were based on 6 criteria but there were no half credits. One point was worth so much that a difference of that point resulted in a significant difference in the final scores. As a result the grievor was underscored. The grievor testified that she was a designated Power User, she had been trained on IDA and involved in training others. She had developed, tracked and maintained an operating system for monitoring salary and budget data while she was on secondment. She spoke of her EDRIS. She listed on her resume the programs she had taken and the various data bases she had worked on. Between her letter and resume, she showed she was more than an average user. Her resume also pointed out her experience compiling statistical data. The grievor was found wanting because she had not developed websites but the incumbent’s resume stated he had maintained but not developed websites either.

62It was submitted that the grievor was underscored for her knowledge of environmental matters. She should have received 3 points instead of 2. Because of the scoring matrix, the loss of that point made a difference in the final count. She had demonstrated her ability by performing an EO3 position and her time at the Spills Action Centre. She had taken the Environmental Management course at Lakehead University. She completed the compliance training course which was necessary to become a Provincial Officer.

63With respect to the problem solving skills, Ms. Osipenko acknowledged that the grievor would have had to analyse data in her previous positions meaning she obviously had the necessary skills. She also utilized those skills when she acted as Administrative Assistant to the Assistant Director. She should have been given 2 or 3 points.

64Similarly, it was asserted, she should have been given 2 or 3 points for her oral and written skills. Her letter indicated she had coordinated Ministry notes and briefings. She trained others on how to write these documents and incident reports. Her ability and experience is clear from her application letter and resume. As well, two of the previous positions she held required those same skills and she was deemed to be qualified.

65The grievor was also underscored in the matter of her training and presentation skills. Ms. Osipenko assumed she had not had experience training a group but only had one-on-one experience. The grievor should have been given 2 points. She pointed out her experience in training as a Power User, completed the Compliance Training course which contains a number of sessions dedicated to training, including a mock court presentation.

66Finally, it was asserted the grievor should have received 2 or 3 points for ability to meet deadlines instead of one. The grievor testified that as an Administrative Assistant, she often worked to deadlines. She might not have provided details of her experience but common sense should have told Ms. Osipenko what she had done through a review of her resume. She should have known the expectations of her previous positions and the content of the Power User and Compliance Training courses.

67In summary, the Union took the position the Board has all the information it needs to decide whether the grievor should get the position. It can decide whether the grievor was relatively equal to the incumbent and only if he can show he is demonstrably better than the grievor is he entitled to the position. If he cannot, this Board should order the Employer to place the grievor into the position retroactively to the date of the posting.

68In support of its position the Union relied on the following cases: Re Kuyntjes and Larman and Ministry of Transportation and Communications (1987), GSB # 920/85 (Gandz); Re Pino and Ministry of Education and Training (1995), GSB # 1236/94 (Kaplan); Re Balics and Ministry of the Environment (1984), GSB # 42/84 (Verity); Re Murphy and Ministry of Correctional Services (1989) GSB # 1151/88 (Kirkwood); Re Holder and Workplace Safety and Insurance Board (2007), GSB#2008/05(Petryshen); Re Bent and Ministry of Transportation (1989), GSB # 0031/88 (Knopf); Re Jensen and Ministry of Skills Development (1988), GSB # 1041/86 (Ratushny); Re Jenkinson and Dickey and Ministry of Health (1988), GSB # 2268/87 (Kates).

69In reply the Employer took issue with the Union’s assertion that the grievor had 16 years of experience in environmental matters. It pointed out that most of that time she was in an OAG position, which is administrative in nature, not operational. The incumbent had more time as an EO in operations. The Employer also submitted that the Board should not place much weight on the other appointments the grievor had been successful in obtaining. It does not know the circumstances of the assignment to the Ministry of Northern Development and Mines. The SAC position was a developmental opportunity which is not treated as a posting under the collective agreement. With respect to the Lakehead Conservation Management Course, there were no details about how many courses she had completed. The Compliance Training Course is taken by all EO’s but Ms. Osipenko did not know enough about the content to consider whether it should affect her score. Ms. Osipenko testified that the Employer planned to utilize GIS more extensively in the future. The fact it did not happen is irrelevant. It was also said that the job specifications and the job posting do not have to be identical. The person posting the job is entitled to emphasize the elements of the job he/she wants to stress.

70The Employer also stated that each candidate was evaluated individually, not in comparison to each other. There was no evidence that the grievor’s Power User status was a major initiative. What is relevant is what the grievor included in her application. There was no reference to the creation of data bases. Q is a common drive used by an easy right click of the mouse. The preparation of briefing notes and reports is not the same as the writing necessary for this position. Taking a Compliance course is not the same as delivering presentations. With respect to the final criteria, it was said there is a distinction between having a deadline and meeting that deadline. The grievor did not say she had done that. There was no indication of independent work in her application.

REASONS FOR DECISION

71The relevant provision of the collective agreement reads as follows:

6.3.1 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, seniority shall be the deciding factor.

The Board’s function is to determine whether the requirements of the collective agreement have been met by the Employer. The employer had the onus to ensure that it had a sufficient factual basis upon which to make the comparisons required by the collective agreement in order to thoroughly and properly compare the qualifications and abilities of the competing applicants. In the Kuyntjes case (supra) at page 14 it was stated as follows:

If the eventual decision about who gets a job is to be based on relative qualifications and abilities, it follows that all steps leading 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 the pre-interview screening be done in a comprehensive and fair manner.

It is not necessary that the pre-screening process be conducted in the same manner as the actual selection process. However, it is necessary that the pre-screening result in valid and relevant information about qualifications and abilities being brought to the attention of the selection board.

72In the Kuyntjes case the Board was dealing with grievances that alleged that the grievor had been improperly denied several positions. In considering the issue of the screening of the résumés and covering letters, the Board, at page 22, stated as follows:

The Borecki decision points out that where there is a large pool of candidates for purposes of cost and efficiency it is not necessary to interview all of the candidates. They can be ranked in order that only more qualified candidates are interviewed. This principle would be equally applicable in a small pool, if the situation is as stated on page 20 of the Sauve decision:

…The award in Bent appears to say that the employer need not interview an applicant who does have all the minimum essential qualifications and abilities if is apparent from the applicant’s resume that overall he or she is demonstrably less qualified and able than other applicants. Together these awards support the proposition that the employer need not interview someone would not be “in that running” even if everything claims in his or her job application were true.

Therefore, if there are qualified candidates, the Employer may look among the candidates in a bona fide manner for the more qualified candidates, always being mindful that he has the obligation to select the senior candidate if the candidates are found to be relatively equal. Therefore as it applies to this case, Employer was entitled to rank the résumés in terms of qualified, marginally qualified and not qualified, and to interview only those who appeared to be qualified.

73I should say at the outset that my first duty is to determine whether the grievor was entitled to be interviewed. Did she meet the threshold and pass the pre-screening test? Only if she can prove her entitlement do I need to compare her qualifications with those of the incumbent.

74Applying the principles set out above to the instant case, the Employer was entitled to prepare a short list of applicants and, in doing so, was entitled to develop its own process to accomplish that end. It determined what criteria were relevant to the job and assigned them a value ranging from 30% to 10%. I find those criteria are relevant to the position duties and are consistent with the job specifications. The Union challenges the stress placed on computer skills for a job that was designed to deal with environmental matters. It points out that the first and most extensive feature of the job specifications is knowledge of environmental policies, procedures and legislation, not computers.

75Both the posting and the job specifications contain numerous references to duties related to computers and set out in some detail the expectations of the position. It was not unreasonable for Ms. Osipenko to give those skills a high priority in her scoring matrix. It is clear that the main focus of the position is the administration, application, development of, and compliance with environmental policies, procedures and programs. Those goals are accomplished in large measure by the use of computers, thus requiring computer skills. While I might have ranked them differently, the Employer’s decision to place computer skills above environmental knowledge is not so unreasonable that I would substitute my own opinion for its opinion. It was not unreasonable for the Employer to apply those selected criteria to her pre-screening process.

76It was argued that there had been no rationale given for the decision to interview those who scored at least 60% and to limit the number of interviews to four. While Ms. Osipenko acknowledged she did not know the rationale for the 60% threshold, I do not find it to be an unreasonable rating in the circumstances and would not substitute a lower threshold. The decision to interview four applicants was based on the Employer’s assessment of the most efficient and expeditious course to take to complete the selection process. I do not find that was an unreasonable conclusion in the circumstances.

77That brings me to the second question, that is, was the grievor scored properly during the pre-screening process? She received one point for her computer knowledge which means she met some of the expectations: the incumbent received 3 points, which means he met all of the expectations. In my view the grievor’s score did not adequately take into account her past experience. In the first instance Ms. Osipenko decided she was operating at the level of a normal user based on what she read in her application documents. As I read the grievor’s application data, she was familiar with most of the programs listed on the job specification and job posting. She did not get any credit for her status as a Power User, a position that was designed to teach computer skills to other staff and ensure upgrades were implemented properly. Ms. Osipenko did not know what the role of a Power User involved and did not make any inquiries. While it is up to the applicant to put her best foot forward, when references are made to programs or activities that are specific to that Ministry, an applicant is entitled to assume there is an awareness of the features of the program without necessarily setting out all of the particulars. In this case the mention of her status as a Power User should have been considered and credited.

78Ms. Osipenko wanted someone who had extensive knowledge of GIS and placed much emphasis on that during her assessment of the candidates. The job specifications state that the position required checking GIS databases, and knowledge of GIS software. It is included in the list of software a RPO would need but it is not emphasized to the extent that Ms. Osipenko sought. Another area of duty that was given great weight was the ability to create databases. The incumbent claimed to have had extensive experience. The grievor stated in her application she had set up and maintained a tracking system and in her evidence stated that creating a database was a simple process she would have no trouble completing. From the information contained in the grievor’s application the grievor should have been scored at least one more point.

79The Union has alleged that the manner of scoring was flawed because there was no allowance for partial points. Each point was calculated by multiplying the rating and the weight of the criteria and adding all the scores together to form a score of 100. As a result, the Union alleged, a difference of one point is too disparate to be reliable. That there is no doubt that there is a significant disparity between the values of each point. However, the four categories are valid measures of the duties and the weight given to each one was a logical and acceptable choice and I would not change it. As a result I cannot give the grievor more than one point in this section because, in my view, while she did meet most of the requirements of the position, she did not meet all the expectations of them.

80I would not interfere with the scores for the second criteria, environmental knowledge. Initially, the grievor received a zero but was reassessed by Ms. Osipenko and given two points. She did possess many of the requirements but had never actually done the duties of an EO4 fully. She had been a Junior EO and an EO3 but it cannot be said she met all of the expectations of the position. Her previous positions gave her an awareness of and familiarity with the duties of an EO4, but there are significant aspects of the job that she has never performed.

81The grievor initially received no credit for her analysis and problem-solving skills: the incumbent received 2. After a review, Ms. Osipenko raised her score to one point. Ms. Osipenko did not see any evidence of concrete examples of those skills. Her resume suggested she had assisted in collecting and maintaining information but nothing detailing analytical treatment of that information. Ms. Osipenko inferred some experience and familiarity with these concepts and gave her a “meets some” of the criteria. I would not interfere with this score.

82The grievor was found to have met most of the requirements of the oral, written and interpersonal skills criteria and one point for each of the training and presentation skills and ability to meet deadlines. The incumbent received 3, 2 and 3 respectively for those criteria. In this aspect of the award, I am not comparing the grievor with the incumbent. I am simply evaluating the scores she received based on the information before Ms. Osipenko. The scores that the incumbent was given would be relevant to my comparison of the grievor and the incumbent if she had been interviewed. Having said that, I find the grievor’s score for criteria 4 was not unreasonable. With respect to her presentation skills, Ms. Osipenko testified that she had the sensation that the grievor had had some training but was not clear about what that consisted of. In her application she stated she had trained other officers in completing numerous reports referrals. She trained others in her duties as Power User and took several courses related to training. Her application indicates to me that she had done training with staff not in a structured environment but rather in one-on-one settings. The score she received was based on the information in those documents and was within an acceptable range. However, in my view the grievor should have received more credit for her ability to meet deadlines and work without supervision. A review of her former positions shows she had worked as Divisional Administrative Coordinator for the Assistant Deputy Minister on various time sensitive matters. She worked in the Spills Action Centre, which requires independent and rapid responses to unexpected situations. Ms. Osipenko should have known the nature of those positions would require those skills and given her credit accordingly. Her score should have been 2; meets most of the requirements.

83Those two changes would not have revised the grievor’s score enough to meet the 60% threshold. She is closer than she was but in order for me to allow the grievance I would have to find that there were one or more flaws in the screening process, which I have specifically rejected. I have found she was scored incorrectly in the areas noted above within that process. Her score is still below the threshold and the grievance is denied.