GSB#2014-2741

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Association of Management, Administrative and Professional Crown Employees of Ontario (Deganis)

Association

• and -

The Crown in Right of Ontario (Ministry of Labour)

Employer

BEFORE

Marilyn A. Nairn

Arbitrator

FOR THE ASSOCIATION

Cynthia Petersen Goldblatt Partners LLP Counsel

FOR THE EMPLOYER

Omar Shahab Treasury Board Secretariat Legal Services Branch Counsel

Felix Lau Treasury Board Secretariat Legal Services Branch Counsel

HEARING

June 23, 2015; April 28; May 13; June 28; September 15 & 20; November 14, 2016; April 18; May 2, 2017

Decision

1This is a job competition grievance. The position at issue is that of Financial Analyst in the Prevention Office (“PO” or “Prevention”) of the Ministry of Labour (“MOL”). The complainant, Virna Deganis, was a member of the AMAPCEO bargaining unit at the time of the posting in July 2013. The successful applicant, Alice Barapp, was not. The collective agreement provides as follows, with Article 18.3.2 establishing the applicable test:

18.3.1 In filling a vacancy, applicants’ qualifications for the position shall be assessed relative to the selection criteria – the knowledge, skills, abilities and experience required to perform the duties of the position. The most qualified applicant for the position shall be selected to fill the vacancy.

18.3.2 Where the qualifications and ability are relatively equal between an AMAPCEO unit applicant and a non-AMAPCEO unit applicant preference will be given to the AMAPCEO unit applicant.

18.6 Unfair competition complaints shall be processed in the same way as other complaints under Article 15, except for the following. Where a complaint is submitted to arbitration:

(a) The arbitrator shall be empowered to determine any question of fact or law including whether any requirement of Article 18 has been followed. This includes, but is not limited to, whether the Employer (including a selection panel) has made an error in the process of assessing the applicant’s qualifications based on the evidence which was (or should have been) before it. However, the arbitrator shall not be empowered to decide who should have been selected in accordance with Article 18.

(b) As a remedy, the arbitrator may declare that competition and its results null and void, and order the competition or any part of it to be run again with directions as to how it is to be conducted.

(c) Notwithstanding Article 18.6(a), where a competition complaint involves the application of Article 18.3.2, the arbitrator may award the job in question to the complainant where the selection panel determined that the complainant’s qualifications and ability were relatively equal to the non-AMAPCEO unit applicant incorrectly awarded the job.

2There was no dispute that both the complainant and Ms. Barapp were qualified for the position. The issue is whether the complainant’s qualifications and ability were relatively equal to those of the successful applicant.

3The Prevention Office was originally housed with the Workplace Safety and Insurance Board (“WSIB”). Further to a 2010 expert panel report, it was determined to move Prevention into the MOL. George Griziotis, the Chief Prevention Officer (CPO) and Associate Deputy Minister (“ADM”) of the Prevention Division (the “Division”), was appointed in October 2011. The complainant understood that Mr. Griziotis held an Assistant Deputy Minister position, a distinction that would affect his level of financial responsibility. By April 2012 the Division was approved to hire staff of up to 90 full-time equivalents (“FTEs”). During 2013, the staffing complement in Prevention grew from approximately 30 to about 75-80 FTEs. The Division was comprised of three branches, housing eight units, with a broad mandate to improve and ensure employee and employer health and safety throughout Ontario. The Directors of each of the three branches reported to the ADM.

4The position of Financial Analyst in the Prevention Division was newly created in the fall of 2012. The complainant was hired on a temporary contract basis and began working in the position on December 3, 2012. Her contract was extended in May 2013 by Lynda Shephard who became Manager of Operations in about April 2013.

5The purpose of the position is described in the job specification as:

To manage and provide leadership in the provision of financial analysis and expertise in financial planning and reporting for the Office of the Chief Prevention Officer and its branches within the Ministry. To provide strategic financial advice and recommendations to the ADM and branch management.

6The complainant was working in the position when it was posted on July 23, 2013. Interviews were conducted in late November 2013 and, in January 2014, the position was awarded to the incumbent, Alice Barapp. Notice of this proceeding was provided to Ms. Barapp and she participated at times as well as giving evidence.

7Ms. Shephard had worked in the OPS for 35 years, mostly in human resources. Prior to moving to the PO she was Acting Director of Human Resources at the MOL. When the PO was created in October 2011 she was initially hired as Executive Assistant to Mr. Griziotis and later became Manager of Operations for Prevention. In that role she handled financial, IT, security and HR aspects for the Division, reporting directly to Mr. Griziotis. The positions of Manager of Operations and Financial Analyst had no reporting relationship with the branches. Ms. Shephard testified that the complainant de facto reported to her from the outset, however the complainant understood that she reported directly to Mr. Griziotis until Ms. Shephard was moved into the manager role in April 2013. Ms. Shephard retired from the OPS in January 2016 prior to testifying in this proceeding.

8Ms. Shephard confirmed that the complainant’s accounting skills were excellent. The employer took issue with the complainant’s performance in the interview and the complainant’s performance in the job, specifically an inability to resolve conflict and an approach that sought to direct rather than influence. The manner in which the complainant sought information from and interacted with staff, according to Ms. Shephard, created conflict between the complainant and all levels of staff. According to Ms. Shephard, the difficulties in the workplace were a factor that the employer had to consider in making the hiring decision, as the job was not just about numbers and finance, particularly in a new division. It was also about influencing people on a divisional level.

9From the complainant’s perspective, Ms. Shephard wanted to handle communications concerning financial decisions made by Directors or managers. It was the complainant’s job therefore to provide advice to Ms. Shephard and for Ms. Shephard to facilitate the conversation with the managers or Directors. The complainant understood she had an obligation to raise issues and she understood that the ADM’s expectation was that policies were to be followed. She agreed that Ms. Shephard was aware of that expectation but she queried how the ADM would deal with issues if not made aware of them by Ms. Shephard.

10At the time of awarding the temporary contract the Financial Analyst position was classified at an AFA19 level and was subsequently reclassified to level 5. Ms. Barapp’s performance appraisal identifies her prior Financial Analyst position with the Office of the Provincial Controller Division (“OPCD”) as an AFA18 classification. Ms. Barapp received a 3% increase in pay when she moved from the OPCD to Prevention, suggesting that the employer treated the move as a promotion. There was no evidence from which to conclude that Ms. Barapp’s position at OPCD, notwithstanding having responsibilities across all Ministries, was a higher level position in terms of its required duties and responsibilities than the Financial Analyst position at Prevention.

The Competition Process

11Candidates were screened into the competition based on their cover letters and resumes compared to selection criteria drawn from the job specification. That screening was done by Ms. Shephard and Tracy Micks, a Human Resource Consultant in the MOL’s Strategic Business Unit. Five candidates were interviewed by a selection panel composed of Ms. Shephard, Ms. Micks, and Ana Matos-Clark, then a Manager in the Stakeholder and Partner Relations Branch of the Prevention Division. The complainant ranked fourth out of the five candidates. The evidence before the Board related only to the complainant and the successful candidate.

12Ms. Shephard acknowledged that the competition process did not comply with the “Manager’s Guide to Staffing in the OPS”, where, at pages 70 and 71, the use of at least three rating methods is indicated as “a critical step toward reducing the likelihood of making a hiring decision on a basis other than merit”.

13The interview was scored out of 100 points on six questions. The complainant’s averaged score was 80 and the incumbent’s averaged score was 91. The Association took issue with certain of the scoring based on the questions posed, a matter reviewed below.

14Ms. Barapp was asked to provide references. The complainant was told that she need not provide references as she had recently submitted references in connection with her appointment to the temporary position. Following the interviews Ms. Shephard did reference checks for Ms. Barapp and the second ranked candidate. References from two managers in the OPCD were extremely positive of Ms. Barapp’s qualifications and abilities.

15The complainant had provided references when being considered for the temporary contract for the Financial Analyst position in 2012. Two references, one from her then manager at the Ministry of Health and Long Term Care and her prior manager at the Ministry of the Attorney General provided equally positive assessments of the complainant’s capabilities. According to Ms. Shephard’s record of those reference checks done in 2012, both managers would have hired the complainant permanently if they had been able to do so. The complainant’s direct supervisor with the Ministry of Health and Long Term Care told Ms. Shephard that the complainant’s client and issues management skills were excellent, using patience and persistence. Ms. Shephard had also recorded that the manager had advised that the complainant had used IFIS and Excel to great advantage and had been very innovative in resolving an ongoing problem that had saved that Ministry from ongoing time and expense. The complainant’s work at that Ministry was described as including financial reporting, issues resolution, and budget monitoring and controls and the manager reported that the complainant was excellent at handling issues in circumstances where there were very ambitious targets.

16Ms. Shephard could not recall sharing those 2012 references with the other panel members. She testified that she did not see added value in going back to those references. Rather, she provided a reference as the complainant’s current direct supervisor. That reference appears to have been verbal and, while likely confirming the complainant’s accounting skills, it indicated areas that “needed work”. Ms. Shephard could only recall discussing the interviews at some length with the other panel members. I heard no evidence from the other panel members.

17Having received the positive references regarding Ms. Barapp, she was offered the position. Ms. Shephard testified that she tried to hire the best person for the job.

The Interview Scoring

18The first interview question asked how the candidate’s education, training, and practical work experience had prepared them for the job, with reference to developing and analysing financial reports. The question was worth 20 marks. The complainant scored 20-20-17 (in order of Shephard, Micks, Matos-Clark throughout). Ms. Barapp scored 20 across the board.

19The complainant holds an undergraduate degree in business and finance, was a Chartered Accountant in Argentina and had completed courses in connection with the Certified General Accountant (“CGA”) designation in Canada. The incumbent holds an undergraduate degree in Math and a Masters degree in Science from Russia and had reached level 5 of the CGA.

20In terms of progressive experience in financial reporting and analysis in the OPS, beginning in 2007, the complainant had worked at four different Ministries on contract or on a temporary basis in budget or financial analyst positions prior to moving to the Financial Analyst position at Prevention. Those positions reflected varying levels of responsibility and scope. The complainant had also worked for a number of years as a Senior Accounting Analyst/Internal Auditor for an insurance company in Buenos Aires.

21The incumbent had worked in engineering prior to moving into finance. Her experience in finance began in the private sector and she moved into the OPS in 2009 as a Financial Analyst in the OPCD, the position she held on a contract basis at the time of the competition in late 2013. Ms. Barapp agreed that her role at OPCD did not involve budgeting, forecasting, or calendarizing expenses, tasks she acknowledged were a major part of the Financial Analyst position in Prevention. While she was aware of the requirements for forecasting, analysing and budgeting at OPCD her experience in those tasks came from the private sector. She agreed that monitoring FTE targets and expenses was a major responsibility of the Prevention job; tasks she had not performed at OPCD. While the interview question asked about OPS experience, Ms. Barapp’s overall experience in finance was more diversified than the complainant’s and reflected a similar length of experience.

22Agreeing that they were important aspects of the Financial Analyst position in Prevention, Ms. Shephard acknowledged that Ms. Barapp’s resume did not indicate that she had done budgeting, forecasting or calendarization in her role with the OPCD. Ms. Shephard had assumed that these tasks, as well as completing planning estimates and coordinating budget allocations, were tasks that would have been performed by Ms. Barapp as part of controllership. Ms. Shephard also agreed that Ms. Barapp had not held progressively more responsible positions within the OPS but testified that Ms. Barapp had dealt with all Ministries so that, in her view, the position had a larger scope, exercising influence across Ministries. The panel considered Ms. Barapp’s greater experience with team leading and project management. Ms. Barapp also had prior experience in a managerial role whereas the complainant had not. Neither candidate appeared to have specific experience in preparing documents for use in Cabinet submissions or in preparing briefing notes.

23The second interview question asked about candidates’ expertise in using IFIS reporting tools, asking candidates to describe the capabilities of each tool. The question was scored out of 20 marks. The panel scored the complainant at 15-18-17, scoring Ms. Barapp at 20-20-18. The desired answers indicate that the candidate’s technical knowledge and understanding were being assessed.

24Ms. Shephard explained in chief that, based on the interview, the complainant appeared to have some knowledge of IFIS but not perhaps Oracle and Discoverer and she supposed that the complainant had had to go for IFIS training when she came to Prevention. Ms. Barapp also had to go for IFIS training in order to work in Prevention. Ms. Shephard was also aware that the complainant had previously been commended for her ability to work with IFIS and that the complainant had been using all of the necessary reporting tools in her position with Prevention with no issues. There was no evidence to suggest that, in consideration of the complainant’s work performance or references, the complainant’s level of skill with IFIS was re-assessed. Ms. Barapp’s response in the interview was more fulsome. Ms. Shephard attributed Ms. Barapp with more extensive knowledge of IFIS in the whole cycle of government coming from the OPCD.

25The third interview question asked candidates to describe some of the critical elements of the fiscal cycle followed by the OPS. The complainant scored 12-9-11 out of 15 marks. Ms. Barapp scored 14-13-11. In testimony, Ms. Shephard acknowledged that the complainant had referenced all of the expected parts of the cycle. In chief she testified that the complainant did not appear to have much experience working through that cycle based on her interview response. In cross-examination she acknowledged that the question had not asked candidates to discuss their experience. Ms. Shephard also acknowledged that, according to her interview notes, it appeared that Ms. Barapp had not identified all the elements of the fiscal cycle. She surmised that Ms. Barapp must have provided more detail about the entire process to warrant a score of 14. I have no evidence as to why Ms. Micks scored the complainant at only 9 marks given Ms. Shephard’s acknowledgement that the complainant identified all expected aspects of the cycle.

26The fourth question asked about leadership skills. The complainant had had no experience as a team lead nor had she ever held a position in management. Ms. Barapp had experience in both. Averaged, the complainant scored 10 and Ms. Barapp scored 11.3 out of a possible 15.

27The fifth question asked about communication and interpersonal skills in hypothetical circumstances of an irate client who had been provided a financial report with significant errors in it. Out of 20 marks, the complainant scored 15-16-16 and Ms. Barapp scored 20-20-18. The complainant lost marks because she was less specific as to a proposed course of action and she differentiated her answer by whether the issues fell within her area or not, when the desired response sought ownership of the issue in any event. Ms. Barapp also identified specifics as to how to show empathy, such as keeping your word regarding a response time.

28The sixth question asked about assessing risk. Averaged, the complainant scored 8 and Ms. Barapp scored 8.3.

Work Performance

29In March 2013 the complainant met with Mr. Griziotis for purposes of a performance review. That assessment had been reviewed by Ms. Shephard prior to the complainant meeting with Mr. Griziotis. The performance review was very positive and Ms. Shephard agreed that at the end of March 2013 there were no concerns or perceived issues with the complainant’s work.

30In an email dated June 14, 2013, Ms. Shephard told the complainant that she “would make a wonderful manager”… “not like the examples of bad managers you may know…you are kind, thoughtful and generous and those qualities are the most important ones in order to deal effectively with people”. Ms. Shephard further stated, “We will sort out the processes and our role as we move forward…this is all part of new positions, new roles and new people in new organizations”. Later that day Ms. Shephard committed to better supporting the complainant and thanked her for her hard work and diligence in a context where the complainant had expressed concern that others were not aware of or did not understand her role in overseeing expenditures and generating advice. In cross-examination Ms. Shephard sought to recant from these emails, stating that one might have the attributes referred to yet still not be able to manage people and that she always tried to be positive.

31Ms. Shephard’s email also included a remark about an individual in another division. In evidence, Ms. Shephard claimed that the remark did not reflect any sarcasm and denied that her comments reflected any indirect criticism of any of the managers, both improbable assertions given a usual reading of the words. Ms. Shephard criticized the complainant for making inappropriate critical comments about a colleague and a Director in emails directed to her, a matter reviewed below.

32Ms. Shephard testified that, as a new division, they were subject to OPS policies and procedures while seeking to develop financial processes unique to Prevention. She assigned the complainant the task of drafting a set of procedures with respect to handling travel expenses and travel and purchase cards specific to the Division. That task required putting OPS policies together and applying them specifically to the work of the Division in circumstances where employees had come from different Ministries and had different ways of doing things. According to Ms. Shephard, the complainant was unable to complete that task, as it appeared she was unable to obtain the cooperation of staff. The incumbent had since created procedures that had been approved by the ADM. In an email dated November 4, 2013, the complainant advised Ms. Shephard that she would be presenting her financial policy/process manual that day or the next. Ms. Shephard did not receive it.

33Ms. Shephard testified to a number of examples as reflecting the concerns that the employer had identified about the complainant’s work performance.

34Mr. Griziotis had asked that the branches develop a central filing system for expenditures. Each branch had organized their files independently and without apparent consistency. Ms. Shephard testified that some Directors and staff were reluctant to centralize their files and that the complainant, while contributing to the problem, was not responsible for not achieving this end. Ms. Shephard acknowledged that there was significant resistance to the idea and that a central filing system was not established until January 2015, a year after the complainant had left the position. According to Ms. Shephard, the complainant was unable to achieve the Directors’ ‘buy-in’. According to the complainant, Ms. Shephard was to have a meeting with the Directors first and was then reluctant to speak to the Directors knowing they were resistant to the idea.

35Ms. Shephard described the complainant as direct, an approach she felt did not always engender cooperation. According to Ms. Shephard, some staff ultimately would not meet with the complainant, resulting in her meeting with them instead. She testified that the central filing required the Directors’ agreement, and they had to be persuaded that they would continue to have good access to and control over their files. It also needed the Directors’ cooperation in order to obtain compliance from their staff. According to Ms. Shephard, the complainant expected people to comply without feeling any need to mitigate their concerns and achieve their cooperation.

36In chief Ms. Shephard described that the complainant was correct that things needed to be done a certain way but failed to recognize that things were not always done accordingly – particularly by Directors and those with the Delegation of Financial Authority (“DOFA”). In Ms. Shephard’s view, that was a matter for the Directors, who were accountable for their actions. Ms. Barapp testified that her approach was to advise a manager when something was not in compliance with policy or procedure but to accept the outcome when the manager indicated their decision as to how to proceed. She saw the role of Financial Analyst as that of a consultant, requiring her to collaborate, while still being responsible for establishing financial procedures and thereby managing staff from a financial perspective. Ms. Shephard testified that the complainant’s intentions were always to do the right thing but that she had difficulty engaging with staff and Directors in a way to gain their cooperation, a matter that, according to Ms. Shephard, was making the workplace an increasingly difficult one.

37Ms. Shephard testified that the administrative assistants would not meet with the complainant alone. The complainant denied this, giving examples of the kinds of interaction that she would have with the assistants such as asking for back-up or discussing expense claims. She specifically recalled going to an administrative assistant “to discuss why she did not terminate an employee when that employee had already gone”, describing that when there was an issue she’d go to the assistant, “asking why”.

38The complainant testified that staff needed training and were resistant to change but that she had no authority and could only suggest improvements. Ms. Barapp subsequently established training procedures and conducted training in procurement and DOFA.

39Ms. Shephard reviewed a number of email exchanges filed as tabs 1-9 in Exhibit 35 in support of the assertion that the complainant lacked the appropriate interpersonal skills. Ms. Shephard described that the complainant’s approach frustrated people; when she wanted something done she wanted it right away and became “a bit assertive and aggressive”. Ms. Shephard described a “pattern of behaviour”, whereby the complainant’s approach was antagonizing and frustrating to others. In cross-examination, Ms. Shephard agreed that her characterization of aggressive and argumentative was part of the complainant’s directness and that the asserted lack of patience corresponded to the complainant remaining persistent whereupon others felt badgered. From the complainant’s perspective, she realized that staff were new, had different levels of experience, and that many needed to be informed of, and trained with respect to OPS polices.

40A chronological review of those email exchanges between the complainant and others in Prevention indicate that the Director of the Strategy and Integration Branch, Brian Lewis, and his Policy and Project Lead, Sarah Jane Crudden, did become frustrated with the complainant, although the evidence also supports the conclusion that the Director and Ms. Crudden were antagonistic towards the complainant for reasons that are not fully explained by the evidence. Ms. Shephard described the complainant and Ms. Crudden as being unable to work together, acknowledging that there was also resistance from Ms. Crudden. However she testified that, in a divisional position, one needed to be able to get people to work together.

41In June 2013 the complainant asked Mr. Lewis to hold off approving a service order desk operations direction (“SODO”) sent to him by Ms. Crudden. SODO is a means of tracking inventory and assets and ensuring costs are charged to the correct cost centre. According to the complainant, Ms. Crudden had used a cost centre that the Director did not have authority to approve, so the transaction was going to be rejected. There was delay and ultimately the SODO was cancelled. In apologizing to the Director for the delay, the complainant noted the initial failure to provide her with the SODO for review as requested, implicitly criticizing Ms. Crudden for not having provided the SODO to the complainant before sending it to the Director.

42On July 17, 2013 Ms. Crudden sent an email to all Prevention staff stating that there was a foul smell in the fridge and that anything unlabelled or expired would be disposed of that afternoon. The complainant emailed Ms. Shephard stating her view that Ms. Crudden had no authority to make a decision about the cleaning and that people were upset. Ms. Shephard testified that Ms. Crudden had helped set up the kitchen and felt some purview over it. Ms. Shephard also testified that staff were claiming that the complainant stored a lot of food in the fridge freezer but did not want to meet with the complainant directly to discuss it. The complainant testified that no one told her of any complaint about storing groceries in the fridge and that everyone did. Ms. Shephard struck a kitchen committee but attributed responsibility for the friction over the kitchen to the complainant. It was also a time management issue for Ms. Shephard as the Division was very busy and trying to help staff get along represented both a distraction and lost time.

43In August 2013 the Director of the Strategy and Integration Branch took issue with the complainant when she asked him for a copy of two of his expense claims and the back-up. The expense claims had already been approved. The complainant explained that the information was for purposes of analysing the expenses in preparation of a detailed financial report requested by the ADM for use by him and the Directors. The Director’s responses make clear that he felt that the complainant was looking to audit the expense claims and that he disapproved.

44Ms. Shephard raised three concerns; the complainant should have gone directly to Terry Laing, the Administrative Coordinator for Prevention, to ask for the information, as Ms. Laing dealt with expense claims for the ADM and Directors; the August 21 email had a “bit of a negative tone” toward the Director, and that the complainant’s approach was antagonizing. She agreed that the information being requested was appropriate and that the complainant would have needed details of the claim, not for integrity purposes, but in order to attribute them appropriately for a monthly report.

45There is no doubt that had the complainant first approached Ms. Laing to determine whether she could produce this information, the interaction with the Director might have been avoided. The complainant was unaware as to where the branch maintained these records and chose to go directly to the Director with her inquiry.

46At the conclusion of all of the evidence surrounding this incident Ms. Shephard agreed that her criticism amounted to the complainant’s failure to take a less circuitous route; that she should have more clearly identified for the Director from the outset that she was being asked to assign expenses monthly and therefore needed the backup information. The complainant’s evidence that she had made the same request of Cordelia Clarke, the Director of the Training and Safety Programs Branch, without incident or issue, was not contradicted.

47The complainant sent a one-line email to Ms. Shephard pointing to the Director’s initial response to her as an indication that he did not have a finance background, as he did not appear to know why people asked for the type of report she was preparing.

48The complainant sent a subsequent email to Ms. Shephard stating that she was confused as to the Director’s seeming reticence about providing the information. She queried whether he had the budgeting knowledge to understand why he was being asked for the information. She also expressed frustration about not being able to get her job done.

49Also in August 2013 the complainant emailed Melissa Kittmer, a manager in the Strategy and Integration Branch, advising her that there were some long distance calls to Florida from the phone of a branch staff member and asking for confirmation as to whether they were work related. Ms. Kittmer confirmed that the calls were personal and totalled 33 cents. She advised the complainant that she had previously discussed the issue with Mr. Lewis and Ms. Shephard and that it was her understanding that such calls were to be tracked and at the end of the fiscal year anything totalling over $1.00 was to be reimbursed to the employer.

50The complainant emailed Ms. Shephard, referring to Ms. Kittmer’s understanding, and advising Ms. Shephard as to her different understanding of the policy with respect to international long distance calls. The complainant understood OPS policy to prohibit staff from making international phone calls for personal reasons, a policy that would require full reimbursement if breached. The email asked Ms. Shephard when she could be available to discuss the matter and suggesting that there may need to be a memo about the issue.

51Ms. Shephard testified that the complainant continued to pursue the issue with Ms. Kittmer to the point that the manager felt hounded and was upset. Ms. Shephard testified that once the Director had agreed and signed off, the complainant should have dropped the issue, as the Director was accountable. There was no evidence that the Branch Director had formalized any approach or had communicated any direction to his staff. Ms. Shephard challenged the “rigour” put to the issue by the complainant given the scale of 33 cents or a dollar. In cross-examination, Ms. Shephard agreed that OPS policy requires employees to reimburse the employer for personal long distance calls using OPS equipment. Just before Ms. Shephard retired, Prevention established and communicated a policy regarding long distance calls.

52On August 21, 2013 the complainant emailed Jennifer Pelly in the Strategy and Integration Branch asking her to enter a SODO changing the cost centre for RAS charges for two employees. The complainant had identified that these charges were being paid through the wrong cost centre. On October 9, 2013 the complainant followed up. Ms. Pelly responded that the Director indicated that the changes were not necessary. There was no suggestion in the evidence that the complainant misunderstood the appropriate assignment of the cost centre.

53The complainant emailed Ms. Shephard stating that she thought a conversation with Mr. Lewis and Ms. Pelly was needed, given the resistance to her request for the remapping of the RAS charges. The complainant’s ongoing concern was that the branch seemed to want to make financial and or financial reporting decisions independently, raising a concern about the consistency and clarity of financial reporting across the Division. She referred to an earlier conference call where neither the complainant nor Ms. Shephard had been included, yet it had involved a significant transfer payment pressure that required the complainant to adjust the Division’s second quarter forecast. The complainant queried whether there was a misunderstanding of the Divisional financial/forecasting expectations by the branch.

54In chief Ms. Shephard testified that the tone of the emails spoke to the complainant’s approach –asking for things right away and pursuing the issue, “hounding with good intentions” but making issues harder to resolve “if everyone’s back is up”. In cross-examination, Ms. Shephard acknowledged that following up in October did not constitute hounding and that the tone of the complainant’s email was entirely appropriate. She then also recanted her criticism of the email that the complainant had sent to her about her concerns and noted that that email had been sent only to her.

55Ms. Shephard criticized the complainant for evaluating the performance of others and querying whether certain duties were appropriately assigned. The complainant wrote to Ms. Shephard that she was not sure what Ms. Crudden’s duties were, but that they should not include “dealing with financial stuff”. The email is ambiguous as to whether it was a personal criticism of work performance or a criticism of the appropriate assignment of duties. Ms. Shephard interpreted it as both, although agreeing in cross-examination that the complainant was not challenging the Director’s authority to assign duties. In Ms. Shephard’s view, the complainant’s estimation of her colleague’s abilities would “leak out” when they interacted and if Ms. Crudden was assigned branch financial matters it was incumbent on the complainant to work with her.

56Ms. Shephard also criticized the complainant for the two emails questioning the financial background of the Director of the Strategy and Integration Branch regardless of the fact that the emails were sent only to her.

57In an email dated October 16, 2013 the complainant notified Ms. Shephard that she had received invoices totalling $36,389 for the purchase of ergonomic chairs for the Division. The complainant asked for the value of the contract and whether the Division had “done a VOR” and if Ms. Shephard had obtained three bids. Ms. Shephard responded only that there was no contract with the vendor and asked for a breakdown of the costs by branch. In response, the complainant referred Ms. Shephard to the DOFA, pointing out the financial limits on the ADM, Directors, and managers to approve furniture purchased to satisfy health and safety requirements. The complainant understood that the Division had not used a vendor of record (“VOR”) or obtained bids and had exceeded its authorization limit. She testified that she had never dealt with such a situation before. Following a conversation with Harvey Lim, Chief Accountant and Corporate Controller with the MOL, the complainant offered the recommendation that some chairs be returned. Ms. Shephard advised the complainant that she would take care of it.

58The purchase of these chairs did not conform to the applicable procurement policies. The MOL required that all such furniture acquisitions “be reviewed and coordinated through the Business Support Unit of the Finance and Administration Branch”. The Business Support Unit had not been involved and the vendor was not a VOR. Ms. Shephard testified that there was a contract for Prevention, although that is not referred to in her email to the complainant. Nor did Ms. Shephard respond to the complainant’s question about obtaining bids, although it appears that bids were obtained.

59Ms. Shephard explained that Prevention had to lead by example in terms of health and safety and that, as a new Division with new staff, it would require the greater expenditure to address those needs. The complainant took issue with the implicit suggestion that all staff had need of an ergonomic chair. In her view the Division should have made a business case to the Business Support Unit.

60Ergonomic assessments were paid for by the Division and each branch paid for its chairs, each Director approving the expenditure by email before proceeding. Ms. Shephard testified that she discussed the issue with the MOL Director of Finance, Susan Flanagan, who identified the expenditure for the assessments as separate from the expenditures for the furniture. Both were aware that the Division was over its DOFA limit and that a VOR should have been used. It does appear that Ms. Shephard spoke to Ms. Flanagan only after the complainant raised her concerns and the chairs had already been purchased.

61According to Ms. Shephard the complainant’s job was to keep her informed of the issue, but to recommend that the Division return chairs was to ignore the context. Ms. Shephard had taken accountability for the issue. Her frustration was that the complainant would not let the issue go. While Ms. Shephard agreed that the DOFA limits were mandatory, she testified that the context of growing a new Division had to be taken into account.

62According to the complainant, when she raised the issue, Ms. Shephard asked the complainant to do a journal entry attributing some of the expenditure for office furniture to office supplies. Ms. Shephard denied making this request. The complainant testified that she refused, as such a request was contrary to accounting standards and requirements. According to the complainant, Ms. Shephard became frustrated and irritated and advised the complainant that she was going to do it notwithstanding that she was aware it was against policy. On the evidence, I accept that Ms. Shephard likely asked the complainant if such an attribution were possible. Ms. Shephard had no access to the general ledger to make any such change herself. Ms. Shephard also likely indicated that she was going to go ahead with the purchase notwithstanding that she was aware it was over the DOFA. The complainant believed that Ms. Shephard had asked her to do something professionally inappropriate, a view that affected their relationship. The grievor did not, however, take the matter to the ADM.

63In evidence Ms. Shephard agreed that the DOFA limits are mandatory and denied telling the complainant that they were just ‘guidelines’. Yet very shortly after in her testimony, and in answer to whether she had told the complainant that the purchases were within her DOFA, she stated, “I took accountability for going over the guideline – that’s my fault and no one else’s”. Either Ms. Shephard was not careful with her use of words or her focus was more on the objective and less on the means of reaching that objective.

64In or about this same period, Ms. Shephard advised the complainant that an employee leaving the PO to work with the WSIB was going to take his ergonomic chair with him. The complainant advised that the asset belonged to the OPS and that a journal entry could not be done to transfer the asset as the WSIB was a different entity. The complainant explained in evidence that an inventory note also would not assist, as there was no inventory record against which to make a note. The complainant advised that the WSIB would be required to purchase the chair from the OPS. However, in her view, that would also be inappropriate, as it would result in generating revenue to the Division, and the chair could still be used by the Division. It was clear in her evidence that the complainant opposed the idea, as she discussed how employees could not take chairs “home”, ignoring the particular context at issue. In Ms. Shephard’s view, having WSIB pay for the chair seemed redundant as funding for the Prevention Division came from the WSIB. She believed this was in line with OPS policy as the WSIB was both a partner and direct funder, and it seemed logical to her that the individual take the chair with him. The employee did take the chair although the evidence did not disclose how that asset transfer was dealt with.

65On October 30, 2013 the complainant asked for, and Ms. Crudden provided to her, a copy of an expense claim filed by Ms. Crudden relating to tuition. The complainant then also asked Ms. Crudden to submit her final mark once the course was finished. It was the complainant’s view of the OPS Learning and Development Policy that tuition expenses should be reimbursed only after successful course completion and that if the course had not been completed or not completed successfully, reimbursement would not be available. In the same email the complainant raised the issue of the central filing, appearing to imply that if the branch were further ahead on that issue, the complainant would not have to bother Ms. Crudden for this information. Ms. Crudden agreed to provide proof of successful completion of the course but advised the complainant that the branch Director disagreed with her understanding of the policy.

66Ms. Shephard described the incident as getting quite heated between the complainant and Ms. Crudden, attributing the difficulty to the complainant’s inclusion of the contentious central filing issue with her request for the expense claim and for raising the reimbursement issue when the expense had been approved by the Director. She saw it as an example of the complainant inappropriately pursuing an issue “relentlessly” even though a decision had been made.

67On November 4, 2013 the complainant provided a copy of the policy to Ms. Shephard in an email, along with her interpretation of the applicable provision and a recommendation that Prevention reimburse employees only after they provide proof of successful completion of a program. She also asked how to respond to Ms. Crudden and suggested that Ms. Shephard speak to the Director first. The complainant expressly stated in her email to Ms. Shephard that she was not questioning the charge. Ms. Shephard agreed that, in the email, the complainant was making a policy recommendation.

68The email exchange ended with Ms. Shephard indicating that she would speak to the Director and Ms. Crudden and provide them with the policy. She also noted her view of the policy as “successful completion is at the discretion of the manager”. She advised the complainant that “this may be another policy we include in our financial policy/process manual”. The complainant asked to be advised of the outcome and indicated that she had been working on their financial policy/processes, which she hoped to present that day or the next, subject to improvements from Ms. Shephard.

69Notwithstanding her view of the policy expressed in her email of November 4, 2013, when she testified, Ms. Shephard agreed that if an employee had not completed or been successful in a course any tuition provided would be clawed back. When asked if there ought to be documented proof of completion when someone had been paid, she answered, “absolutely”. It was not clear from the evidence that Ms. Crudden understood that a failure to successfully complete the program would require her to reimburse the employer for any tuition it had paid. Her email indicates that that was the point of disagreement.

70However, in Ms. Shephard’s view, they had done their due diligence in advising the Director of an interpretation issue and the Director had approved the expense. Therefore the complainant ought to have dropped the issue, otherwise it became “a war of words as to the interpretation of the policy”. An internal audit in 2014 confirmed that the policy requires employees to provide proof of successful completion of learning and development activities where financial assistance has been approved and recommended that Prevention establish appropriate measures in order to recover any identified overpayments. That recommendation supports the conclusion that tuition may be advanced, contrary to the complainant’s recommendation.

71Also on November 4, 2013 Ana Matos-Clark forwarded a tuition invoice for payment to Katie Barrett, copying Ms. Shephard. Ms. Shephard forwarded the payment request to the complainant. In turn, the complainant asked Ms. Barrett to forward a copy of an invoice showing payment of a tuition deposit of $904 so that she could attach it to the invoice received.

72Ms. Shephard testified that Ms. Matos-Clark came to her upset and frustrated that a confirming email from the university was not being treated by the complainant as sufficient proof of enrolment when her Director had approved the expense, noting that the complainant was requiring a receipt for the deposit. According to Ms. Shephard this was another example of the complainant continuing to pursue an issue when the expense had been approved by the Director, there was no breach of OPS policy, the invoice was proof of enrolment, and the matter was being dealt with between two managers. In cross-examination Ms. Shephard agreed that the emails indicating that Ms. Matos-Clark would be dealing with Ms. Shephard were not copied to the complainant, leaving the complainant unaware of that latter point.

73According to Ms. Shephard she forwarded the invoice to the complainant not to arrange payment but to track the expense, although that is not clear from the email string. Like the issue involving Ms. Crudden, the invoice involved the pre-payment of tuition. Ms. Matos-Clark was seeking payment for the full balance owing, an amount of $9546.50. In evidence Ms. Shephard agreed that a Director’s DOFA for training and development fees was $5000 and that the relevant Director, Ms. Ayumi, did not have the DOFA to approve this expenditure.

74In response to an inquiry from Ms. Barrett, the complainant had advised that the tuition amount could not be split and paid on the P-card. The DOFA is clear that invoices cannot be split so as to circumvent the DOFA. The deposit had been paid using a P-card. The total invoice exceeded $10,000, therefore requiring approval from the ADM. The complainant spoke to Ms. Ayumi to ask if the ADM was aware of the expenditure, who told the complainant to speak to Ms. Shephard. Ms. Shephard advised the complainant that she would deal with it.

75When asked what Ms. Matos-Clark was upset about, Ms. Shephard testified that it was the complainant’s approach, that Ms. Matos-Clark felt roadblocks were being put up instead of working with her and she was frustrated. At the same time, when Ms. Shephard was asked whether the complainant was doing her job by making sure that the appropriate person with DOFA approved the expenditure, she answered, “absolutely”.

76On November 19, 2013 a Planning Analyst with the MOL’s Finance & Administration Branch, Business Planning Unit, sent an email to the complainant advising her for the first time of changes to the Health and Safety Associations (“HSAs”) second quarterly (“Q2”) report arising from the impact of pension cost increases. A unit in the Strategy and Integration Branch manages transfer payments in relation to the HSAs. The complainant was asked to revise certain information before sending the revised Q2 forecast to one of the managers in that Branch. There were then discrepancies between the Division information prepared by the complainant arising from these adjustments. The concern raised by the complainant with Ms. Shephard was that neither of them had been made privy to the exchange of information by either the Planning Analyst or the branch, in circumstances where that information would affect the Division forecast. Ms. Shephard agreed that the complainant required the information but because the complainant was having difficulty obtaining cooperation, Ms. Shephard was now to have another meeting with the branch, adding to her workload.

77Ms. Shephard described this as an example of the complainant being bypassed because staff no longer wanted to deal with her. She acknowledged that the issue was not solely the complainant’s fault as the Planning Analyst was difficult and there had been a problem getting information from the Finance Branch from as early as June 2013.

78In late December 2013 and early January 2014 the Planning Analyst engaged the complainant in a number of emails concerning the 2013-14 Q3 fiscal status report. The complainant sought Ms. Shephard’s assistance in approaching the Strategy and Integration Branch in order to acquire the information required by the Finance & Administration Branch. The evidence does support a conclusion that over the latter half of 2013 the complainant increasingly requested Ms. Shephard’s assistance to approach and/or intervene with other staff on her behalf. At the same time, Ms. Shephard testified that the complainant would bring issues to her but then not let her handle them; that the complainant would continue to discuss the issue with the individual involved, upsetting them. It is also reasonable to conclude that the complainant increasingly felt that Ms. Shephard was not addressing her issues evidenced by her statement that the ADM could not deal with issues if Ms. Shephard did not tell him about them.

79An internal audit of the PO conducted in 2014 addressed many of the same issues raised by the complainant. In terms of the appropriate accounting measures and policy applications, the complainant’s concerns were largely vindicated.

80Ms. Shephard approved a merit increase for the complainant prior to her leaving the position in Prevention. According to Ms. Shephard there was an element of the job that the complainant was not good at - her ability to acquire cooperation and to influence people with respect to processes and issues. However, Ms. Shephard testified, the complainant performed most of her job well and it was her livelihood.

81In giving her evidence the complainant often spoke quickly and, rather than directly answering a question, often went into examples in detail, losing the focus of the question. Her manner sometimes appeared abrupt. In cross-examination the complainant was asked if poor interpersonal or influencing skills would hinder the ability of the Financial Analyst to perform their role. Initially she responded that she was not sure. She then expressly took no position on the question. She agreed that Ms. Shephard had told her that some staff had complained of her, but testified that Ms. Shephard also provided explanations as to why those individuals were difficult or needed more time to respond.

82The complainant acknowledged that she sometimes interrupted others and described that, in her culture, that action was an indication of interest. She had learned that it was often otherwise interpreted as a sign of disrespect or impatience. Speaking quickly was also referred to by the complainant as a cultural trait.

83Performance appraisals are drafted by the employee and reviewed and approved by the manager. Both the complainant and the incumbent had positive appraisals. However, comparing the appraisals, it is the case that the incumbent described the applicable performance measures having regard to the overall objective of the position and its role in the organization, whereas the complainant’s description of performance indicators focused on specific tasks in the position.

84It was the Association’s position that the employer had violated the collective agreement both in the manner in which it had conducted the competition and in the decision to select Ms. Barapp for the position. It argued that the complainant’s qualifications and abilities were relatively equal to the successful candidate, that she was therefore entitled to the position, and that the appropriate remedy in the circumstances was to award the position to the complainant.

85The Association referred to the decisions in OPSEU (Bent) and The Crown in Right of Ontario (Ministry of Transportation); GSB File No. 1733/86; OPSEU (Hall/Powers) and The Crown in Right of Ontario (Ministry of Correctional Services); GSB File Nos. 716/89 and 866/89; OPSEU (Vaillancourt) and The Crown in Right of Ontario (Ministry of Health); GSB File No. 1620/87; OPSEU (Boucher) and The Crown in Right of Ontario (Ministry of Northern Development, Mines and Forestry); GSB File No. 2010-0571; and AMAPCEO (Alderson) and The Crown in Right of Ontario (Ministry of Children and Youth Services); GSB File No. 2006-1007.

86The Association argued that the assessment of relative equality had to be in relation to the requirements of the position. It advocated a test requiring a substantial and demonstrable margin differentiating candidates; otherwise relative equality would be established. Ms. Barapp’s qualifications, argued the Association, were not demonstrably and substantially greater than those of the complainant.

87The Association argued that the process was flawed and contrary to the employer’s own guidelines, in that only one rating method, interviews, was used to conduct the job competition. There was no systematic or sufficient gathering of relevant information by the selection panel, argued the Association. Question #4 in the interview was not relevant, argued the Association, as it inquired about managing and motivating teams when the position did not involve such work. It also went to the fairness of the interview, argued the Association, as the successful applicant had prior managerial experience whereas the complainant did not. Irrelevant factors are not to be considered, argued the Association.

88There was also a failure to conduct appropriate reference checks argued the Association, resulting in a failure to compare and analyse the relative attributes of the candidates and a failure to share the complainant’s references with the other panel members, leading, it argued, to confirmation bias by the panel.

89The employer failed to properly assess the educational background and work experience of the two candidates, argued the Association. The complainant’s educational and professional qualifications were more directly related to the duties and responsibilities of the job, argued the Association. Whether Ms. Barapp’s Masters degree in Science was more complex was not relevant, argued the Association, as it was not relevant to the duties of the position.

90The complainant had worked in the position in three different Ministries, argued the Association, thereby holding directly related and relevant experience, whereas the successful applicant had only limited and less relevant public sector experience and no experience at the Ministry level. The placement was a promotion for Ms. Barapp, argued the Association, whereas the complainant was in the position.

91The complainant’s performance in the job for a year prior to the competition had to be given adequate weight independent of her performance in the interview, argued the Association. In terms of job performance the selection panel did not review the complainant’s formal evaluation and the fact that her contract was extended in March 2013, indicating continuing good performance, argued the Association. A merit increase granted in January 2014 also confirmed continued good performance, argued the Association.

92By November 2013 Ms. Shephard had raised interpersonal skills, conflict resolution skills and the ability to influence as areas for improvement by the complainant. In this, argued the Association, Ms. Shephard became biased against the complainant, also evidencing a cultural bias in the manner in which the complainant’s performance was evaluated. No evidence was heard from anyone who had actually complained about the complainant and there was no discipline of any kind, noted the Association. What others perceived as combative and abrasive, argued the Association, was the complainant’s direct manner, something that may rub people the wrong way but, as Ms. Shephard admitted, could reflect cultural bias. In any event, argued the Association, the extent and effect of any such issue was greatly exaggerated by Ms. Shephard when reviewed against the evidence.

93The complainant raised issues with the employer, consistent with the responsibilities of her job, argued the Association. These issues led to conflict with Ms. Shephard, argued the Association, right before the job competition. Those included Ms. Shephard’s failure to use a VOR, various individuals exceeding DOFA limits, the request and refusal to reallocate a journal entry, the removal of an asset to the WSIB, requesting proof of successful course completion, preventing a split charge and raising the issue of the proper authorization for a tuition charge.

94The tuition reimbursement issue also involved Ms. Matos-Clark, argued the Association, a member of the interview panel – who scored the complainant lower on the first question with no evidence as to why. There was objective evidence of bias in the competition, argued the Association. The staffing guide says avoid early assessment yet, following the initial screening, it appeared that a ranking had been completed. Ms. Shephard was wrong in her belief that Barapp had been doing budgeting in her OPCD position even though it was not on her resume. Ms. Shephard’s judgment was clouded evidencing favourable bias toward Ms. Barapp, argued the Association. Even assuming Ms. Barapp had relevant responsibilities not on her resume, the Association argued that the employer had pre-judged Barapp as the superior candidate at an early stage; that Ms. Shephard wanted to find someone who was not going to challenge her.

95Thus, the Association argued, Ms. Shephard went into the interview with the impression that Ms. Barapp was the superior candidate given the issues she had with the complainant. Ms. Barapp was qualified and her references confirmed that, ending the matter. There was no comprehensive or comparative process, argued the Association. Ms. Shephard testified that she tried to pick the best person for the job, but that was not the test, argued the Association. Relevant information was ignored and irrelevant information was considered, argued the Association. The collective agreement required that there be a relative assessment of whether there were demonstrable and substantial differences in their qualifications and abilities.

96The Association argued that all of the appropriate information required to make the assessment of relative equality was in evidence and therefore that assessment should be made by the Board. It argued that, based on the evidence, the complainant’s qualifications and abilities were relatively equal to the successful applicant and she was therefore entitled to the position. It sought an order placing the complainant in the position.

97In the alternative, argued the Association, it had established that the outcome could have been different had the process been conducted appropriately, thereby requiring a re-run of the competition under proper conditions like those set out in Alderson, supra.

98It was the position of the employer that the Board should not interfere with the results of the competition as the union had failed to discharge its onus to establish that the complainant’s qualifications and abilities were relatively equal to those of the incumbent.

99The employer referred to the decisions in OPSEU (Leung) and The Crown in Right of Ontario (Ministry of Finance); GSB File No. 2012-3171; OPSEU (Jobson) and The Crown in Right of Ontario (Ministry of Transportation), GSB File NO. 2008-1107; OPSEU and The Crown in Right of Ontario (Ministry of Economic Development and Trade), GSB File No. 2003-3124; OPSEU (Esposito) and The Crown in Right of Ontario (Ministry of Housing), GSB File No. 2168/92; OPSEU (Bent), supra; OPSEU (Simmons) and The Crown in Right of Ontario (Ministry of Government Services), GSB File No. 483/82; AMAPCEO (Alderson); supra; and OPSEU (Anderson) and The Crown in Right of Ontario (Ministry of Environment), GSB File No. 105/86.

100The employer did not dispute that exclusive reliance on one method of evaluation would reflect a flaw in the process. However, argued the employer, Article 18.6 of the collective agreement prohibited the Board from appointing the complainant to the position, differentiating this analysis from the OPSEU cases referred to by the Association. Even were the candidates relatively equal, a matter it did not concede, argued the employer, the only available remedy was a declaration and a re-run of the competition between the two candidates.

101The Association, argued the employer, had failed to lead sufficient evidence to demonstrate that the result of the competition would be different if a re-run were to be held. Having regard to all of the evidence, argued the employer, the complainant’s qualifications and abilities were not relatively equal to those of the incumbent.

102If one does not perform well in an interview it will operate to the detriment of the candidate, argued the employer. The selection panel was required to assign marks solely on the answers actually provided. In this case the selection panel scored the answers independently and there was no allegation of collusion or influence. The employer was entitled to rely on the interview process and those scores ought to be accorded significant weight, argued the employer.

103The employer argued that a difference in scores of about 5% would not be sufficient to trigger relative equality in that this was a technical job. The interview process went decisively for the incumbent, argued the employer.

104There was no basis for concluding that either Ms. Matos-Clark or Ms. Shephard were compromised or improperly motivated in any way, argued the employer. Ms. Shephard spoke of a number of positive things about the complainant’s accounting skills throughout her evidence, argued the employer, countering any suggestion of bias, whether overt or subtle. Similarly, any suggestion concerning Ms. Matos-Clark’s conduct was countered by the fact that the scoring completed by her was higher in some areas and lower in others than other panel members and resulted in the lowest disparity as between the two candidates. The panellist against whom no allegation was made scored the largest disparity between the candidates, noted the employer, giving credence to the scoring by all panel members.

105The employer argued that question #4 was sufficiently and appropriately connected to the requirements of the job in that it measured the ability and skills of the candidate to acquire ‘buy-in’ from colleagues, something the complainant struggled to achieve, argued the employer.

106Taking into account information that the panel may not have considered would not assist the complainant, argued the employer. The employer argued that the resumes were relatively equal, both candidates were qualified, and both had OPS experience in financing. The incumbent had four years of knowledge of the financial policy issues that applied even though she had been dealing with those issues on a more corporate level. One could not conclude that the move was a promotion for the incumbent given a pay freeze for management positions, argued the employer. The incumbent also had private sector experience in forecasting, budgeting, and analysis; experience that could not be discounted given the duties and responsibilities of the position. The incumbent had a higher degree of education with more highly developed analytical skills, argued the employer, making her the stronger candidate in this requirement. Had the panel reviewed performance appraisals the incumbent would have obtained the advantage, argued the employer, as hers are significantly better.

107The remaining areas to consider and the focus of much of the evidence were references and quality of work, argued the employer. A reference is what it is, argued the employer; one cannot go behind it to challenge what is said in the reference. The incumbent had very good references and the complainant’s references were positive at the outset of her work in the position. However, argued the employer, that factor tilted based on Ms. Shephard’s view of the complainant’s performance in the position, more particularly regarding the complainant’s lack of interpersonal skills. The manager was entitled to form an opinion about the complainant’s work, argued the employer. The allegation of bias was not made out on the evidence, argued the employer, and was not an allegation of bad faith.

108Even if the complainant was correct in her view of each of the issues, argued the employer, it did not change the fact that the complainant was not good at the advising and influencing aspects of her job. The position required that she be able to communicate in such a way so as to engender buy-in from her colleagues, to persuade them of the need to comply with her advice. The overarching issue on the totality of the evidence was this inability to be effective, argued the employer, reflected in the evidence that all three Directors and seven or eight administrative assistants had issues with the complainant. The employer argued that the complainant could be argumentative, questioning management’s qualifications in circumstances where her role was to provide advice in the context of responsibility for making the decision resting with the manager and where issues about whether the organization was following appropriate and sound practices raised the spectre of an audit or review resulting in the decision-maker having to answer for their actions. The complainant, argued the employer, was unable to resist assuming a quasi-decision-making role, rather than providing respectful, collaborative advice to the decision-maker that was sensitive to their needs.

109There was no evidentiary foundation to suggest or support any conclusion that cultural bias or dissonance played any role in the friction created by the complainant’s behaviour, argued the employer. Nor was the employer required to tolerate rude or inappropriate behaviour regardless of its origins, argued the employer.

110Having regard to all of the evidence, argued the employer, there was no basis for ordering a re-run of the competition, the only available remedy. There could be no material change in the assessment even on the totality of the evidence, argued the employer, as one could not conclude that the complainant’s qualifications and abilities were relatively equal to those of the incumbent.

111At the end of her testimony Ms. Barapp urged that the results of the interview be upheld, asserting that there had been a fair and honest competition and that she had scored significantly higher than the complainant. She later argued that one brings all of one’s experience to a job and that how one responds in an interview is indicative of how one handles stress and that how one conducts and presents oneself is a major part of acquiring a position.

112In reply, the Association argued that relative equality was not a number but, in any event, the disparity between the candidates was small. It argued that Ms. Shephard agreed that the perception that the complainant was abrasive was cultural and the conduct was therefore neither rude nor inappropriate. It raised an issue under the Human Rights Code (the “Code”) argued the Association. The Association argued that assertions of the complainant’s lack of interpersonal skills reflected Ms. Shephard’s evidence in chief and not the acknowledgements she made in cross-examination, which also indicated Ms. Shephard’s propensity to exaggerate. If eight individuals had made substantive complaints about the complainant there would have been no extension to the contract, no merit increase, and some discipline, argued the Association. Similarly, argued the Association, if a reference was based on inappropriate considerations, that could be challenged. The appraisals did identify that the work done by the incumbent was not related to the specific duties of the position and experience not related to the job was irrelevant, argued the Association. While agreeing that analytical skills were transferable, the Association argued that a Masters in Science was not as relevant to the job as a degree in accounting. To the extent that the employer relied on interpersonal skills those skills were confirmed by the complainant’s 2012 references, and Ms. Shephard’s evidence in chief on this issue was completely undermined in cross-examination, argued the Association.

113The fact that the candidates were scored equally was not evidence of a lack of bias, argued the Association, as the complainant ought to have scored higher with respect to education and experience than the incumbent.

114The employer’s interpretation of Article 18.06 of the collective agreement would render the provision meaningless, argued the Association. If the Association was able to establish flaws in a process and comprehensive evidence that a complainant ought to have been appointed to a position, using a purposive approach, argued the Association, there was no basis for this language to interfere with the Board’s ability to appoint the individual to the position. Otherwise, argued the Association, the AMAPCEO member would be denied the benefit of the substantive right in Article 18.3.2 of the collective agreement.

115Were the complainant’s qualifications and abilities relatively equal to those of the incumbent? Inherent in that question is the issue of whether those qualifications and abilities were assessed appropriately in the competition process.

116The competition process was flawed. The employer relied on an interview process and partial references. In doing so, Ms. Shephard, at least, made assumptions about the work then being performed by the incumbent that were inaccurate. The panel failed to consider the complainant’s prior references. The panel failed to consider other measures of evaluation such as performance appraisals. The provision of full marks to the incumbent for her OPS experience appears inconsistent with the identified factor of increasingly responsible OPS experience. Ms. Barapp’s assertion that her Masters degree showed that she had attained a higher level of formal education, while true, is not sufficient to indicate superior educational qualifications for the job at issue. While the scoring for question #2 appears to reflect the complainant’s more limited response in the interview, no consideration was given to her actual experience working with the financial tools, a concern raised in the decision in Alderson, supra. The rationale for the scoring with respect to question #3 was unclear from the evidence. I do have some concerns about the level of technical expertise on the panel, given that the job requires specific and significant skills in finance. However, it is also apparent that technical skills were not the issue in this case.

117I am not persuaded that the interview questions, and specifically question #4, were inappropriate or unrelated to the work. Particularly given the fact of a new and growing Division, a question about team leadership and project management went to the heart of assessing the expectations concerning consultation, planning, and managing financial aspects of the Division as set out in the job specification. In any event, the scoring on that question would suggest more relative equality than less.

118A flawed process would typically result in a re-run of the competition. The parties agreed that I have all of the evidence relevant to the competition before me. Although articulated differently as between the parties, the question is whether, based on all of the evidence, the complainant’s qualifications and ability were relatively equal to those of the incumbent.

119AMAPCEO acknowledged that “qualifications and ability” in Article 18.3.2 of the collective agreement is informed by the language in Article 18.3.1 that references “knowledge, skills, abilities, and experience”.

120Having carefully considered all of the evidence and for the reasons that follow, I find that the complainant’s qualifications and abilities with respect to the position of Financial Analyst in the Prevention Office in 2013 were not relatively equal to those of the incumbent.

121Both candidates’ accounting and finance skills were excellent and both candidates were qualified for the job. The complainant had obtained a finance and business degree, whereas the incumbent had achieved level 5 of 6 for a Certified General Accounting designation. The incumbent’s educational qualifications in Math and Science show strong analytical skills, as does the complainant’s highly rated prior work in other Financial Analyst positions.

122The complainant had more specific OPS, Ministry-level experience. The incumbent had been broadly exposed to OPS policies and procedures and had significant private sector experience in forecasting, budgeting, and calendarization as well as general financial analysis, experience directly related to the work of the PO Financial Analyst. These two individuals are highly qualified in this regard and both bring value to the OPS. The complainant’s accounting and finance knowledge, skills, and experience, while acquired differently than the incumbent, are clearly relatively equal to those of the incumbent. I do not find that the complainant’s technical qualifications and abilities were superior to those of the incumbent, notwithstanding that the complainant had specific experience in the job. The incumbent had successfully performed the same kind of financial analysis in other contexts and understood and had used the required financial tools.

123However, qualifications and abilities in finance are not sufficient, given the job specifications. This is a relatively senior bargaining unit position, requiring the ability to provide strategic advice and recommendations. In 2013 that included the circumstances of a new Division gearing up operationally and growing rapidly, creating additional pressures. The employer is entitled to take those factors into consideration in assessing its staffing needs.

124The Association acknowledged that a full assessment of the complainant’s work performance in the temporary position was relevant and appropriate. It is the case that, under the terms of this collective agreement, holding a position on a temporary basis is no guarantee of success in a competition for that position on a permanent basis. That can very much depend on one’s success in the temporary role. A reference from one’s supervisor from that period is as relevant as any other and must be considered and assessed.

125I do find that Ms. Shephard exaggerated her evidence, attributing the bulk of the blame for conflict and communication issues to the complainant. However, having carefully reviewed all of the evidence, I am not persuaded that the complainant held relatively equal skills, experience, and abilities with respect to managing relationships, providing consultative advice, and providing strategic advice and recommendations, all requirements of the job specification. I make this finding despite a concurrent conclusion that the complainant was not solely responsible for the communication and relationship issues that developed in the Division while she worked there in the temporary capacity. I have also asked ‘what changed’ between the complainant’s prior highly recommended work in the OPS and her experience in Prevention in relation to her interpersonal skills, and have considered the question of the effect and consequence of being part of a difficult relationship when one is not wholly responsible for that difficulty.

126I do accept that the complainant’s relationship with others in the Division and her ability to influence others deteriorated in the latter half of 2013 to the point that others were prepared to bypass the complainant’s need for financial information, affecting her ability to perform aspects of the position. I am also of the view that, while not wholly responsible, the complainant did contribute to that dysfunction in her inability to influence others, regardless of how ‘right’ she was. And in most cases, the complainant’s view with respect to the accounting practices, financial reporting requirements, and the appropriate application of OPS policy, was correct.

127I am persuaded that the concerns generally expressed by Ms. Shephard as the complainant’s “approach” was evidence of a lack of ability or skill with respect to the Financial Analyst job in Prevention in 2013.

128As a summary and over-arching description, the complainant’s approach was reactive, reflecting an audit perspective, rather than proactive, reflecting a strategic perspective. The first requires knowing the rules. The second requires knowing the rules and exercising the ability to take initiative, develop strategy, and use creative thinking in relation to those rules and the organization and its goals and objectives.

129I accept Ms. Shephard’s description that the complainant thought that people should just comply with the rules as set out in OPS policies. That assessment appears accurate on the evidence. While I entirely sympathize with the complainant’s view, I also recognize that, absent the authority to insist on compliance, compliance must be obtained via persuasion, influence, and cooperation. These are significant skills, requiring the ability to both see and assess the ‘big picture’ in order to be able to identify and account for others’ needs, priorities, and interests in order to find ways to meet them or find appropriate compromise. And it also assumes that others know and understand the rules.

130Notwithstanding that the complainant felt that others did not understand or were aware of her role, there is no evidence that she took initiative to explain that role. While the complainant understood that staff required training in financial practices in the Division, she undertook no initiative to generate or provide training other than to raise the issue with Ms. Shephard. The same may be said with respect to the issue of repayment for personal long distance calls. The various breaches of OPS policy that concerned the complainant might have led her to set, as a priority, the preparation and approval of the financial policy and procedure manual specific to Prevention, such that it could then be used by the Division as a foundational educational tool for staff. As it happened, that tool arrived, to some extent, in the form of the internal audit in 2014. The complainant’s approach was more attentive to detail than to the ‘big picture’ in circumstances where the Division needed broader guidance at that stage of its existence.

131The request to Mr. Lewis to produce his expense claims, however polite, reflects a lack of consideration of his priorities and time demands. This is evidence that the complainant’s directness included a failure to stop and think about how best to approach an issue or a request, so as to maximize the likelihood of achieving her goal.

132The complainant expressly declined to acknowledge that a lack of interpersonal skills would hinder performance in the position, when those skills are expressly set out as requirements in the job specification. When she explained how she would meet with administrative assistants “asking why”, the choice of words and tone was telling. It reflected an approach that began more with an accusation than an inquiry, an approach that would put others on the defensive and make them less willing to cooperate or to hear and understand the complainant’s concern.

133The complainant dealt with the purchase of the ergonomic chairs from a “right or wrong” dichotomy, focussed on the employer not exceeding the DOFA, whereas the Division, through Ms. Shephard, sought to set an example for its client base. The difference in approach can be described in the statement, “don’t tell me that I can’t do this - tell me how I can do it”. While the complainant testified that she had never dealt with such a problem before, and while she spoke to Mr. Lim, her approach to potential options was directed by her view that the Division remain within the DOFA, rather than how the Division might achieve its objective, and, in this case, failing to accept that Ms. Shephard was prepared to accept responsibility for the inadequate procurement process and the Division’s overspending.

134While the complainant was, in her way, seeking to protect managers and Directors in the Division, including Ms. Shephard, from their own mistakes or decisions, those individuals could properly be expected to accept whatever consequences flowed from their decisions. And if the complainant sought to influence those decisions, she needed to consider operational and other considerations that were driving those decisions rather than conveying an implicit and subtle judgement that the individual was doing something wrong. This requires strategic thinking not in relation to the organization’s overall financial management, but in relation to ensuring that the appropriate financial management considerations appropriately remain part of the decision-making process for managers and Directors while recognizing that the decision, and any resulting consequence, rests with those managers or Directors.

135While the complainant felt that Ms. Shephard wanted to act as the go-between with other managers and Directors, that fact evidenced Ms. Shephard’s loss of trust in the complainant’s ability to engage those individuals directly. That loss of trust led Ms. Shephard to listen less to the complainant as well, creating a cycle of miscommunication – as evidenced by the communications surrounding Ms. Matos-Clark’s tuition expense. It was also apparent that Ms. Shephard became concerned about the amount of time required of her to intervene or mediate between the complainant and others. That is a legitimate employer concern. At the same time I recognize that the bulk of the friction came from within one branch. However, the complainant did come to seek Ms. Shephard’s greater intervention and assistance. There was no evidence, for example, that the complainant initiated any attempt to meet with Mr. Lewis or others in his branch to seek to work out their differences. The job specification identifies the need to establish relationships in order to be able to provide advice and recommendations. Rather, the complainant expressed equal frustration about her ability to get her work done.

136Some of the challenges in the Prevention Office at the time of the temporary assignment and the competition would not have been the same as those faced by the complainant in her prior experience in established Ministry programs. Prevention was dealing with a rapidly increasing staff complement, bringing diverse experience to a new program, and was focused on getting the organization up and running with all of the organizational and structural elements that entails. It was no doubt a challenging time for all and, based on the times reflected in many of the emails, occurred in the context of long hours. But it also speaks to the complainant’s lack of experience in dealing with a challenging environment and the corresponding greater need to set priorities.

137On November 27, 2013, when the complainant had her interview for the permanent position, the concerns expressed by Ms. Shephard were evident and were actively interfering with the complainant’s ability to perform the functions of the position. Ms. Shephard no doubt raised these concerns with the selection panel and the concerns were valid. That reference properly forms part of the panel’s considerations. While Ms. Shephard should have also provided the complainant’s earlier references to the full selection panel for consideration, I accept that the particulars of the complainant’s work in the position would have been compelling, particularly in light of the complainant’s performance in the interview with respect to questions #4 and #5, questions that addressed the candidates’ interpersonal and communication skills and ‘approach’.

138Ms. Shephard did not agree that the perception that the complainant was abrasive was cultural. At most, she acknowledged it could be. In any event, the evidence is simply insufficient to establish the existence of a cultural bias. Evidence of interrupting others or speaking quickly, with an assertion of cultural connection, without more, is not evidence of an attributable cultural trait and reflects behaviour equally attributable to a variety of other possible explanations.

139Ms. Barapp came with excellent references regarding her ability to handle conflict, and to work with a variety of OPS stakeholders. Teamwork and communication skills were identified as two of her greatest strengths. She was also commended for having effective negotiation skills. Ms. Barapp also had experience in management, experience that would assist in understanding the kinds of operational considerations faced by Directors and managers including necessary priority-setting, and lend awareness of the ‘big picture’. Her resume indicates successful experience in, among other things, initiating and implementing projects, developing systems, establishing guidelines, and obtaining management approval, all reflective of the use of good communication and interpersonal skills and consistent with her better responses in the interview to questions #4 and #5. Taken alone, the scores on those questions reflect a very significant difference between the candidates. Even taking into account adjustments to the scoring in questions #2 (to account for the complainant’s actual knowledge and skill as opposed to simply her interview response) and #3, there remains a significant difference between the candidates. While in some respects she was unable to resist the tug of self-interest in her testimony, Ms. Barapp also spoke persuasively about the importance of presentation and communications skills in achieving one’s goals.

140Unless there is a significant and demonstrable difference in qualifications and abilities as between candidates, they are properly considered to be relatively equal. While I reiterate that both candidates were qualified for the position, this was a competition. I am persuaded that a difference, broadly described as the interpersonal and communication skills and abilities as between the candidates, has been demonstrated having regard to all of the evidence. I am also persuaded that it is a significant difference, having regard to the particular circumstances of the Prevention Office at the time of the competition in 2013.

141On balance, and having regard to all of the above, I find that the complainant’s qualifications and abilities in relation to the Financial Analyst position in Prevention in 2013 were not relatively equal to those of the successful applicant and that, therefore, the employer did not violate Article 18.3.2 of the collective agreement.

142Having regard to this finding, it is unnecessary for the Board to consider the issue of the proper interpretation and application of Article 18.6(c) of the collective agreement.

143This grievance is hereby dismissed.