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 Counsel

FOR THE EMPLOYER

Stewart McMahon Ministry of Government Services Legal Services Branch Counsel

HEARING

August 20, 2014

Decision

1This matter comes before me as a mediation-arbitration (“medarb”) pursuant to Article 22.16 of the collective agreement. As a result, this decision, while it will dispose of the instant matter, will otherwise have no precedential value. Further, in the interests of the expedition associated with the medarb process, my reasons herein will be summary in nature.

2I have already issued a decision, dated June 21, 2012, in which I directed that the employer rerun the competition that was the subject of the original grievance. That has happened. Consistent with the terms of my decision, only two applicants were considered: the grievor and the incumbent.

3The employer ultimately assessed the two candidates (by way of an interview, a skills test, contact with the persons who had provided references (the “referees”), and a review of some other materials, some of which will be referred to shortly).

4In the employer’s assessment, reduced to and expressed in terms of a percentage, there was a significant and dramatic gap in the two candidates: the incumbent scored slightly more than 70%; the grievor slightly more than 28%. The job was awarded to the incumbent.

5Notwithstanding this, the grievor disputes the employer’s choice and seeks an order that the position be awarded to him.

6It is critical to note that, with one relatively minor exception, the grievor does not contest the propriety of the questions asked by the interview panel or the skills test. Neither (subject to the exception) is there any challenge to the scores assigned to the candidates in the process.

7The one exception relates to one of the questions asked during the interview process. The grievor asserts, based on the interviewer’s notes, that he should have been awarded more points for his answer to this question. However, that question had a maximum total of 15 points. The grievor was awarded an average score of just over 6 points. Thus, even if he had (assuming he ought to have been – a point the employer disputed but was prepared to accept for the purposes of this stage of the determination) been awarded full points, that would have increased his score on the interview from 23.83 to 32.83 (out of 100) and his final percentage from 28.33% to almost 33%. While this would undoubtedly be a marginally improved score, it is still a very long way from the over 70% awarded to the incumbent. Thus, even adjusting the interview/test results to take account of the grievor’s challenge to the points awarded, there is no issue that, on that basis, the job was properly awarded to the incumbent.

8What then is the basis of the grievor’s challenge? It is twofold. First, the grievor claims that the employer failed to consider what he described as his “thank you binder” (the “binder”). The grievor left this binder with the interview panel. It included, among other things, the grievor’s application and resume; his “consent form” authorizing employer contact with his referees; his Performance Planning and Review documents; various letters and emails from clients and staff commending his performance; and some skills certificates.

9Secondly, the grievor asserts that the employer acted improperly when, in a conversation with one of the grievor’s referees, it adverted to the fact that the rerun of the competition was required as a result of the grievance that had been filed.

10First, with respect to the binder, Mr. Hunt, one of the three members of the interview and selection panel, testified that the panel had indeed reviewed and considered the binder. He further testified that the picture painted by a consideration of the binder was entirely consistent with the results and scores of the competition. The position in question, that of “Graphic Design and Print Operator”, as its name suggests, includes both print and design components. There was no dispute that the grievor had ample experience and skills with respect to print functions. Mr. Hunt was concerned, however, that the grievor had little, if any, meaningful design experience or skills. The grievor was able to point to a very limited number of examples of design work he had done while acting in the position. However, it appears from the evidence before me (including materials from the binder and the evidence of Mr. Hunt) that those examples were of limited extent and did not serve to significantly showcase design skills. Thus, I accept Mr. Hunt’s view that a review of the binder results in conclusions consistent with those of the interview and skills assessment process.

11There was a suggestion (with no supporting evidence) that Mr. Hunt was reviewing the binder for the first time at or in preparation for the hearing and that he had not done so during the selection process.

12As already noted, Mr. Hunt denied that and I see no reason or evidence to doubt his veracity in that regard. Moreover, even if the binder was being reviewed for the first time at the hearing, a review of its contents is consistent with and does not support any conclusion different from that which resulted from the interview and skills test assessment. There was no serious challenge to this conclusion.

13Accordingly, I am satisfied that the binder was reviewed as part of the selection process but that even if it was not, any such timely review would not have altered the results of the competition.

14Finally, with respect to the conversation between Mr. Hunt and one of the grievor’s referees, I note that Mr. Hunt had no recollection of the subject matter of the grievance having been discussed (though he did not deny it). The grievor’s evidence with respect to this conversation was, obviously, hearsay. Thus, it is not really possible to arrive at firm factual findings. However, once again, even assuming the comments asserted by the grievor were made (i.e. that Mr. Hunt asked the referee if he was aware the grievor had filed a grievance), it is less than clear to me that such a comment is necessarily inappropriate. More importantly though, there is absolutely nothing to suggest that this had any negative impact on the (positive) reference that was provided or that the absence of any such conversation would have made any material difference to the outcome of the competition process.

15In view of all of the above, I am not persuaded that the employer engaged in any impropriety and, even if it did, that any such impropriety taken singly or all together, had any impact on the results of the competition.

16The employer rated the incumbent as a far superior candidate. Nothing presented before me persuades me that conclusion was, in any way, improper. The grievance is hereby dismissed.