GSB#2011-0827

UNION#2011-0542-0008

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Sadloo)

Union

• and -

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

Employer

BEFORE

Dan Harris

Vice-Chair

FOR THE UNION

Jane Letton Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Susan Munn Treasury Board Secretariat Legal Services Branch Counsel

HEARING

April 14, November 7 and 20, 2014.

Decision

1This is a job competition grievance that arises out of a MoS dated August 24, 2012. The parties have agreed that these proceedings are governed by article 22.16 of the collective agreement, being the Mediation/Arbitration Procedure. Accordingly, this is a succinct decision with no precedential value.

2The clauses of the MoS, hereafter “MoS”, that are at issue are as follows:

1. The Employer agrees to re-run the job competition for a Coordinator, Financial Processing and Reconciliation (F03) (Job ID: 29742) that took place in September 2010. The only candidates in this job competition re-run shall be the Grievor and the fourth-ranked candidate from the competition that originally took place in September 2010. The intention of the Parties is to hold a job competition re-run that evaluates the skills and qualifications of the two candidates prior to September 2010. This job competition re-run shall take place within 90 days of this settlement.

2. The job competition re-run referred to in paragraph 1 shall include an interview, a written test and a presentation. Furthermore, the Employer shall conduct a review of the resumes, reference checks and personnel files of the two candidates.

3. The Parties agree that, in the event that the grievor is successful in the job competition re-run referred to in paragraph 1, the issue of remedy shall be remitted to the Parties, and the remedy shall include compensation for the Grievor retroactive to the date that the fourth-ranking candidate from the competition that originally took place in September 2010 started in the Coordinator, Financial Processing and Reconciliation (FO3) position.

4. The Parties agree to keep the terms of this settlement in the strictest confidence and agree not to disclose any of the terms and conditions of settlement, except to the Grievor's immediate family members or as required by law or for the purposes of implementation of this settlement.

3There was an unsuccessful attempt to reach a settlement of this matter by mediation, so the matter proceeded to arbitration. The relevant documents were admitted into evidence on consent, and the parties filed written will-say statements for each of the witnesses. Those statements stood as the examination in chief of each of the witnesses. The opposing parties took the opportunity to cross-examine each of the witnesses and the party producing the witness exercised their right of re-direct examination. I reviewed all of the written material. The hearing was completed in two days.

4The union's case is that the competition was flawed because the interview panel evaluated post-2010 skills; there was no “handwritten” test, because the “written test” was done in Microsoft Word, the grievor's answers were not fairly marked, and the confidentiality clause of the MoS was breached. With respect to the latter allegation regarding confidentiality, the union says that the employer discussed with the grievor the arrangements for the interview in a public setting. Further, the grievor was instructed to wait in an exposed location for the interview to start and the interview was held in a room that had glass doors. Accordingly, the grievor's coworkers could see that he was involved in an interview. By way of remedy, the union seeks to have the grievor placed directly into the position, with compensation.

5The employer's case is that the candidates’ post-2010 skills were not considered; in the alternative, if they were considered, they had no effect on the outcome of the competition. It said that the grievor's answers were fairly marked by a panel with the requisite skills, in a manner consistent with those of the incumbent, there was no requirement of a handwritten test, and there was no breach of the confidentiality clause of the MoS. In the latter regard, there could be no fault found in management discussing with the grievor the time and location of the interview, and it was the grievor that raised the existence of the MoS in the conversation of which he complains. Further, the location where the interview was held is not as visible as the grievor claims. In any event, the grievor's complaints about the running of the competition were either de minimus or could not have affected the outcome of the competition.

6The panel was composed of Caroline McKinnon, Louise Pachal and John McKinnon.

7For the reasons set out below, the grievance is dismissed. There were no flaws in the competition process of such severity as would justify placing the grievor directly into the position, which is an extraordinary remedy.

8I turn first to the allegations that the employer breached the confidentiality clause of the MoS. First, the grievor says that the clause was breached when Carolyn McKinnon, a member of the interview panel, came to the grievor's workstation and offered to change his interview from Monday, November 19 to Tuesday, November 20 because the incumbent had been allowed to change her interview in that fashion. The grievor testified that Ms. McKinnon spoke loudly enough that surrounding coworkers could hear her question. It is clear from the grievor’s evidence that it was he that then raised the existence of the MoS. He asked Ms. McKinnon if she was aware of the existence of the MoS. She said that she was not. On the basis of his evidence, Ms. McKinnon was simply affording to the grievor the same indulgence that had been granted to the incumbent regarding the scheduling of the interview. On the evidence, there was no breach by the employer of the confidentiality clause of the MoS.

9The second allegation made by the grievor of the breach of the confidentiality clause is that he was required to wait in a public location before the beginning of the interview. He said that he understood that the interview was to take place in "the boardroom". He took this to mean the Assistant Deputy Minister’s boardroom, which, apparently, is opposite the elevators. He got there at the appointed time and waited. He testified that this is a high traffic area where people could see him waiting, dressed for an interview. However, in an email from Ms. McKinnon dated November 9, 2012, the location of the interview is clearly set out as “The Family Responsibility Office, Ministry of Community and Social Services, seventh floor, Law Library”. He testified under cross-examination that he knew the location of the Law Library. His complaint is that the email goes on, in describing the format of the interview, to request that he "please arrive at the boardroom location no later than 8:45 AM." I find if there was any confusion over the location of the interview there was not such a flaw as would justify a finding that the employer had breached the confidentiality clause of the MoS. The “location” is clearly set out in the email. If the grievor was confused as to the location, he ought to have sought clarification. Further, there is nothing inherent in standing near the elevators that would alert other employees to the “terms” of the settlement between the parties. The third aspect of the allegation that there was a breach by the employer of the confidentiality clause is that the Law Library door is glass and people could see into the room as they walked by. The evidence of the employer was that the glass in the door had been covered with paper. The grievor denied this. It is not necessary to determine whether or not the glass was covered with paper. Again, anyone walking by, and seeing into the room, would not have been able to conclude that he was engaged in a job interview competition process as the result of the MoS, even if they concluded he was being interviewed. I reject the grievor's assertion that there was any contravention of the confidentiality provisions of the MoS by the employer

10I turn now to the grievor's allegation that the MoS was breached because the “written test”, required by the MoS, was completed in Microsoft Word rather than as a “handwritten test”. The test consisted of the candidates being required to compose an email message. In 2010, email was a predominant method of communication. There is nothing in the MoS that requires that the written test be a "handwritten test". There was some allegation that there was agreement that the MoS was meant to say “handwritten”. Even if that were so, the purpose of the exercise was to compose an email. The grievor agreed in cross-examination that he does not first compose his emails in handwriting and then transcribe them into digital format. There is no basis on which to conclude that there would have been fewer errors if the composition had been required to be handwritten. Such a difference, even if the MoS called for a “handwritten” test would not be such a serious flaw as could result in the grievor being directly placed into the position. The grievor is properly concerned that there be compliance with the MoS, but there is no error in this regard. The grievor also complained that he had more errors circled on his draft email then did the incumbent. Having considered both writing samples, it is my view that both samples were critiqued in a similar fashion. This concern of the grievor's is not made out.

11The union also takes the position that overall the grievor received fewer marks than he ought to have received. There is some intimation in the union’s approach to the case that there was collusion amongst the panel members in coming to their individual scores at the expense of the grievor. There is no evidence upon which such a conclusion could be drawn. The grievor’s scores were 52, 51 and 54, for an average of 52.3. The other candidate’s scores were 68.5, 69.5 and 70.2, for an average of 70.2. Accordingly, there is a 17.9 point difference between them on a total possible score of 100 points. This is a significant difference. On my consideration of the questions asked and the answers given, the scoring was reasonably fair and consistent as between the two candidates and as amongst the panel members in the scoring of each candidate. The scoring certainly does not fall so short that the grievor should be put directly into the position.

12The grievor had other complaints regarding the interview and presentation. He said that he was not given 15 minutes to prepare, and Ms. McKinnon and Ms. Pachal barged into the room after five minutes. The three panelists each testified that the grievor was left alone in the law library for 15 minutes while they waited in Mr. McKinnon’s office. The three of them then walked to the law library and entered at a normal pace. I prefer the Employer’s evidence as the more likely. Mr. McKinnon testified that the interview started late due to the grievor having waited by the ADM’s boardroom near the elevators rather than having come directly to the law library. He said the preparation time was proscribed and the grievor was afforded the allotted time. Their entrance may have startled the grievor, but there is no reason to believe that they barged in in order to throw him off. It is understandable that the grievor has gone through the materials with a fine-toothed comb, but he has misapprehended them in his zeal to find fault. One example is that the grievor believed that Ms. McKinnon interrupted him during each of his answers with a warning about the time remaining. She testified that she twice advised him of the time remaining. From his answers in his cross-examination, it seems that he is of the view that the panel members’ evidence differed on this point. His view of the will-say statements is that Ms. McKinnon said she told him twice about the time, but the other two say she never did at all. The will say statements of Ms. Pachal and Mr. McKinnon do not say she never told him about the time, they say she never interrupted him. Another example is in his view of the “Anticipated Response” to question 7. The question and response are as follows:

Q: Please describe a time when you were required to explain a complex financial issue. What techniques and tools did you use to effectively communicate the issue and your advice or recommendations.

Anticipated Response

Verbal communication to explain the issue with examples and points, breakdown issue, simplify. Written issue notes or briefing notes to document and explain issue and recommendation. Use of charts or graphs. Comparisons. Use of examples. Other answers that demonstrate these concepts.

13Part of his complaint was that he could not use charts or graphs in answering question 7, because his brief case had been taken away when he came into the room. The anticipated response does not expect him to use them in the interview, but rather to give an example from his work experience when he did use charts and graphs. The grievor’s evidence was also internally inconsistent. As set out above, he said that he was not left alone for the preparation time. He also gave the following reason for the removal of his belongings:

In the anticipated response candidates were expected to use charts or graphs. This is difficult to do when the interview panel take your belongings before the interview begins.

14On the whole, I prefer the evidence of the employers’ witness because it is more reliable and plausible than the grievor’s. In my view the evidence does not support placing the grievor directly into the position. The MoS was not breached in any material fashion.