GSB#2011-3587

UNION#2012-0586-0002

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Russell)

Union

• and -

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

Employer

BEFORE

Nimal Dissanayake

Vice-Chair

FOR THE UNION

Alison Nielsen-Jones Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Jennifer Richards Ministry of Government Services Legal Services Branch Counsel

HEARING

May 15, June 20, 2013

Decision

1Ms. Claudette Russell, (“the grievor”) has filed a grievance dated February 1, 2012 alleging that she had been denied consideration for a promotion to the position of Caseworker in contravention of the collective agreement. The parties agreed that the Board should proceed pursuant to the mediation/arbitration provisions set out in article 22.16 of the collective agreement. Since no settlement was achieved through mediation, the Board received an agreed statement of facts, which was supplemented by other documents and the oral testimony of the grievor and Mr. Carlos Cascallar, manager of the Ontario Disability Support Program (“ODSP”) in the Toronto Office.

2This grievance relates to a job competition of a unique nature. From 2009 to 2011 the ODSP underwent modernization with the goal of providing a one-stop service to clients. As a result of the modernization project the position of Customer Service Representative (“CSR”) was eliminated. Under the new model two new positions, Program Support Clerk (“PSC”) and Caseworker were created. The latter position was classified higher than the PSC position.

3In order to fill the newly created positions, the employer and the union executed a letter of understanding (“LOU”) outlining a competition process. Underlying the LOU was the principle that no CSR would be left without a job. All CSR’s who failed to secure a higher rated Caseworker position were placed in the position of PSC. It was the process set out in the LOU, not the process set out in the collective agreement, that applied to this particular competition.

4The competition consisted of three phases. Phase one was restricted to regular employees who held the position of CSR. Phase two was restricted to regular and fixed term ODSP staff. Phase three was an open competition. CSRs who failed to secure a Caseworker position through phase one were allowed to compete again at phase two. The evidence is that the process in the LOU had the goal of ensuring that as many of the former CSRs obtain Caseworker positions. Thus, it provided for support for CSRs, including a temporary assignment of up to four months in a Caseworker position, and training in resume writing and interview skills. Under phase one every applicant achieving the threshold of 65 percent was assured of a Caseworker position. However, under phase two there was a competition based on relative equality and seniority among all applicants achieving the 65 percent threshold.

5The grievor received the temporary assignment and the resume writing and interview skills training as contemplated in the LOU. She participated in phase one of the competition process, but fell short of the 65 percent threshold. This result was not grieved. She then participated in phase two and scored 62.25 percent, again falling short of the 65 percent threshold. Therefore, she was deemed unqualified for consideration for a Caseworker position and was assigned to a PSC position. The instant grievance challenges that result.

6Phase two of the competition process consisted of an oral interview (25 percent), a written test (50 percent) and a role play (25 percent). The only ground of attacking the competition advanced on behalf of the grievor is an allegation that she should have received additional marks for the written test and the role play, which would have resulted in her achieving the 65 percent threshold, and therefore deemed eligible for further consideration for a Caseworker position.

7The union challenged the mark assigned to the grievor for her answers to three questions in the written test, Questions 1, 5 and 7. The grievor testified in chief that she felt that she performed very well in the competition and that she deserved a Caseworker position. On question one she testified that she should have received at least two additional marks because she had written 6 relevant points in the answer. On question 5, she felt that she did not receive a mark for a relevant point she had made. On question 7, the grievor felt that she had been denied a mark each for two relevant points she had written down. In each case, the grievor pointed to words she had written for which she felt she did not receive credit.

8With regard to the role-play, the grievor testified that although she did not specifically recall, she would not have suggested to the client that he should limit his income if he wanted to remain on the ODSP, and that she was merely explaining the rule that if his income exceeds the ODSP entitlement amount, he would become ineligible to remain on the program. She also referred to an issue in the role play where one of the markers had given her 1.5 marks, while the other assigned only 1 mark for the same issue. She suggested that the discrepancy was obliviously because the second marker had not been listening properly or did not properly hear what she said.

9Under cross-examination the grievor agreed that she had appropriately received 1/2 mark for each of the 6 points she had made in question 1. On question 7, the grievor agreed that she had written about what she would do, when the question was about what notes she would enter into the computer. With regard to question 5, she re-iterated that she should have got one more mark for a point she wrote. She agreed with employer counsel that she had failed to mention a number of relevant issues.

10Counsel pointed to the notes made by both markers of the role play, to the effect that the grievor suggested to the client that he should limit his income if he wanted to remain on the program, and asked the grievor whether she was still taking the position that both markers wrote down what she said incorrectly. The grievor replied, “I don’t remember but I don’t think I’d say that”.

11Mr. Cascallar had overall responsibility for the competition and served as its chair. However, he was not present during the role play and was not involved in the marking of the written test or the role play. He testified generally about how the competition was carried out. He testified that the written test was marked on the basis of an answer key prepared in advance.

12The union pointed to Mr. Cascallar’s testimony that he would have given the grievor 1 or at most 2 marks for a particular answer, and that the marker of the written test had been very generous in assigning a mark of 4 for that answer. Based on that discrepancy between the assessment of the answer between the actual marker and Mr. Cascallar, it was argued that the Board should conclude that the marking was done in an arbitrary manner without the aid of an answer key or some other objective tool. It was submitted that the marking has to be fair and that marking could not be both fair and very generous. It was submitted that on that basis alone the grievor’s written test score should be declared invalid.

13Ms. Nielsen-Jones further reviewed the words written by the grievor in response to the contested written test questions and urged the Board to accept the grievor’s interpretation of the response recorded and conclude that the grievor deserved the additional marks claimed. She also pointed to the evidence that the applicants were not privy to the total value of a question or how many relevant points were expected to obtain full marks for an answer. She suggested that without that information, an applicant may not write down all relevant points within his/her knowledge and may instead move on to the next question in order to complete the test within the two hour time limit.

14Ms. Nielsen-Jones pointed out that the only person who was present at the role play to testify was the grievor. It was submitted that the grievor’s direct testimony that she did not suggest that the client limit his income be preferred over the notes made by the two markers who did not testify. It was also reiterated that the discrepancy in the marking on the same issue where one marker gave 1.5 mark while the other gave only .05, indicates that the latter either did not listen or had misheard.

15The Board does not accept that the marking was done without the aid of an objective scoring key. Mr. Cascallar clearly testified that one was used. This testimony was not challenged in cross-examination. There is no doubt that even with a scoring key some subjectivity would have been involved in assigning marks to an answer. That by itself, in the absence of any evidence or even suggestion that the marking was done differently for the grievor as compared to other applicants, does not render the marking process arbitrary. Some subjectivity is almost unavoidable in any assessment undertaken during a job competition. As the Board stated in Re O’Brien/Lepage, 2009-0691; 2009-0692 (Dissanayake) at para. 16:

…the Board’s role should be one of determining whether the employer carried out the screening process in a fair, reasonable and consistent manner without any bad faith or ulterior motives. Its role ought not be one of sitting in the position of the employer and conducting the screening process over again. In the present case the union did not allege any bad faith. Therefore the issue is whether the screening process carried out by Ms. Cooper was fair, reasonable and consistent.

16That observation applies to the Board’s role in determining the appropriateness of marking during a job competition as well. In the present case also, there is no allegation of bad faith or differential treatment. The Board agrees that it is preferable that the applicants be made aware of the value attached to each question, and parts of a question. However, there is no evidence that the lack of that information impacted adversely on the grievor. There is no evidence that the grievor was rushing to complete the test or that she did not put down relevant information she had. She made no such assertion during testimony.

17The Board disagrees with the union’s assertion that generous marking is necessarily unfair. Generous marking, or for that matter marking strictly as per a marking key, if done without bad faith and applied consistently to all applicants, could be very fair.

18Even if the Board is in agreement with the union that the grievor’s responses and performance at the role play can be read and interpreted as she does, as the Board stated in the excerpt above, that is not the role of the Board. The onus is on the union to establish that the marking of the grievor’s written test and/or the role play was not carried out in a manner that was fair, reasonable and consistent. The evidence before the Board does not meet that onus.

19Therefore, the instant grievance is dismissed.