GSB# 2014-4243

UNION# 2014-0542-0026

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Greco)

Union

• and -

The Crown in Right of Ontario (Ministry of Transportation)

Employer

BEFORE

Nimal Dissanayake

Arbitrator

FOR THE UNION

Lesley Gilchrist Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Daria Vodova Treasury Board Secretariat Legal Services Branch Counsel

HEARING

March 21, 2018

DECISION

1In a grievance dated October 15, 2014, Ms. Felicia Greco, (“Grievor”) has challenged the outcome of a competition she unsuccessfully participated in for one of some 18 positions of Case Processor. At the time the grievor held the position of Driver Control Analyst classified as OAG 11. The posted position was classified higher at OAG 13. The grievance came before me pursuant to the expedited mediation-arbitration provisions of article 22.16 the collective agreement.

2The grievor asserts that in her position as Driver Control Analyst she used many skills and knowledge similar to those required in the posted position. Yet she ranked 34^th out of 38 candidates in the competition process. She believes that given her 30 years’ service in the OPS and her experience in the previous positions, she just could not have performed so poorly if the competition process had been conducted fairly and in accordance with legal requirements.

3On behalf of the grievor it was submitted by the union that the competition was fatally flawed in three ways. First, there were mechanical issues and errors during the testing which prevented the grievor from performing to the best of her ability. Second, one of the members of the interview panel was biased against her. Third, the employer did not attach sufficient weight to the grievor’s past experience and performance, and relied excessively on the results of the competition process.

4The onus of proving the alleged violations lies with the union. In Re Damani, 1581/95 (Gray), the Board made the following observations:

“The presence and effect of racist attitudes may be difficult to detect and prove. It does not follow, and the union does not suggest, that proof is therefore unnecessary, or that the mere allegation of racial discrimination shifts the burden of disproving the allegation to those accused of it. The same may be said about anti-union animus and discrimination on the basis of union activity” (Para. 17)

“The grievor says she cannot understand why she has not advanced in the civil service unless it is because she is the victim of discrimination on the basis her race or union activity or both. Her subjective belief that she is the victim of discrimination, however strong, is not proof that she is.” (Para. 18)

5Those observations apply equally here. Beyond the grievor’s belief and assertion, there is no evidence to support the allegations. The union has not met its onus, and the grievance is hereby dismissed.