P/0015/95

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

D. McAdam

Grievor

• and -

The Crown in Right of Ontario (Ministry of Finance)

Employer

BEFORE

D. Leighton

Panel Chairperson

FOR THE GRIEVOR

D. McAdam

FOR THE EMPLOYER

D. Holmes Counsel Legal Services Branch Management Board Secretariat

HEARING

November 29, 1995.

Mr. Desmond McAdam filed a grievance with the Public Service Grievance Board (the Board) objecting that he was not interviewed for a position of Area Appraisal Analyst with the Appraisal Services Branch, Ministry of Finance, for which he had applied (#FIN:682C-94). At the beginning of the hearing, the Employer raised a preliminary objection that the grievance is not arbitrable. The Employer argued that an employee cannot demand an interview for a job competition. Since the Employer was acting fully within management’s right to select whom to interview, and there was nothing wrong with the selection process, the Board has no jurisdiction to review the employer’s decision. The Employer argued further that there had been no allegation of bias, discrimination, or procedural flaw in the hiring process and, therefore, the Grievor is estopped now from asserting such grounds, in support of his grievance. Finally, the Employer also submitted that there has been no injury to the Grievor and, therefore, there is no jurisdiction for us to hear the matter.

The Facts

The facts of this case are not contentious. In November, 1994 the Ministry decided to establish eighteen new positions in the Ministry of Finance, including that of Area Appraisal Analyst for Industrial and Special Properties in Administrative Area 2 in the Muskoka Regional Assessment Office, Region #17, for which the Grievor subsequently applied. By January 31, 1995 the Ministry had developed the selection criteria to evaluate the applicants for the positions. Applicants were graded against five basic criteria. Applicants were scored as follows: 1) up to 35% for knowledge of property assessment and valuation for all property types including commercial, residential, farms, and industrial; 2) up to 20% for their knowledge of the Assessment Act and related statutes; 3) up to 20% for their research skills, analytic abilities, and problem solving skills; 4) up to 15% for their oral and written communication skills, interpersonal skills, and their ability to appear as expert witnesses; and 5) up to 10% for organizational skills and how they managed multiple projects.

On February 17, 1995 the jobs were posted by the Ministry. There were six positions within 18 specifically specialized as Industrial Area Appraisal Analysts. The Ministry received the Grievor’s application on February 22, 1995.

There were a total of 166 applications for the 18 positions. There were 14 applications for the position for which the Grievor applied. The applications were screened or reviewed according to the criteria noted above, and each applicant received a total score out of 100%. The applicants with the five highest scores were interviewed, and one person was selected from that short-list

Two senior Valuation Managers did the initial screening of the 14 applicants. They scored the Grievor at 67% and 70% respectively. The Grievor’s score was not in the top five that were screened and, therefore, he did not receive an interview. The screening process was done based on the information provided in the application including the covering letter and the curriculum vitae of each applicant.

The Grievor is presently a Valuation Manager and he was applying for a position that was lateral to the present one. He has worked for the Ministry in the valuation of properties for 34 years. He described himself as well-known to the screeners and an ”insider.” He assumed that he would get an interview for the position given both his credentials and his experience. Therefore, he wrote a brief covering letter describing his experience and a two-page resume briefly summarizing his experience and education. He stated that he thought this would be sufficient given that he was well-known to the managers selecting the candidates for the short list. He was very surprised not to get an interview for the position. In order to find out why he had not received an interview he wrote to several people, including Ms. Elizabeth Patterson, Assistant Deputy Minister, Property Assessment. Ms. Patterson replied to the Grievor stating that the applications for the particular position he applied were carefully evaluated against the criteria which was set out in the posting. She stated further that she believed that the evaluation process and the number of people interviewed for the position was very reasonable. The hiring process was, in her opinion, fair and impartial.

Mr. McAdam wrote again to Ms. Patterson asking for information regarding who was interviewed for the position and their qualifications. The response to that letter was by E.C. Farragher. Mr. Farragher summarizes the Grievor’s attempts to get information on why he was not interviewed including noting the Grievor had made a Freedom of Information request which was forwarded to the appropriate office for response. He then went on to address the questions raised by the Grievor, specifically regarding the individuals interviewed and the screening of applicants. He described the selection process briefly. The Grievor received a raw score of 137 out of 200. The five candidates who were interviewed for the position scored higher than 140.

The Grievor was still not satisfied with the response from the employer regarding why he was not given an interview and on August 15, 1995 he filed a grievance. The grievance provided in part:

For reasons, only known to the three members of the selection board, they determined that I lacked knowledge and experience and, therefore, I am not qualified for this position.

I am requesting a hearing to determine the real reasons for being excluded from being interviewed. I feel deeply that there is more to this than the explanation that I received from Ms. Patterson and Mr. Farragher.

The Grievor was able to get information about who was interviewed for the position through his Freedom of Information request. Several of the candidates were junior to him at the time they applied for the new position.

The Grievor’s Submission

The Grievor found it surprising that people junior to him got an interview when he was not given one. He questioned the rating or screening system and took the view that it was impossible to apply this screening criteria only to a letter of application and a curriculum vitae. He was of the opinion that the only way the selection criteria could be applied was in an interview. He was extremely upset about the process and what he termed the “arbitrary” mark that he was given in the assessment of his credentials.

The person who actually got the job was junior to him at the time of application. The Grievor was of the view that the person who got the job was not as well qualified as he was himself. Finally, the Grievor stated that he thought the real reason he did not get the job was because he had stopped maintaining his membership in the professional organization for valuators, known as the Institute of Municipal Assessors. He stated that although it was not a written criteria in the job posting, it was an unwritten requirement for the job. He based this opinion on some statements by Ms. Valerie Jones, the Commissioner, that, in her opinion, being a member was important to his advancement.

The Employer’s Submission

The Employer’s Counsel referred to the following decisions in support of his argument: Colacci and the Crown in Right of Ontario (Ministry of Consumer and Commercial Relations) (P/0912/82); Kehoe and the Crown in Right of Ontario (Ministry of Transportation and Communications) (P/0914/92); Brander and the Crown in Right of Ontario (Ministry of Correctional Services) (P/0006/92).

The Employer submits that the Board should dismiss this case as not arbitrable. Counsel referred the Board to Colacci, supra, where it was held:

In considering the general question of grievances arising from position competitions, it is the opinion of the Board that there is no stated, nor is there an inherent right, for a candidate to demand an interview with the selection committee. On the other side of the question, there is no requirement for management to interview all applicants for a position.

The Board further stated that:

While others may feel that the choice was wrong, there can be no grounds for complaint unless some law is broken, a contract or undertaking breached, or some other irregularity can be sustained. In the absence of anything of this nature, it is fair to assume that management has acted conscientiously and in the best interests of the institution.

Counsel argued that in the case before the Board there was no allegation that the Ministry had done anything wrong in the selection of interviewees for the position. Counsel cited Brander, supra where the Board held similarly in a more recent decision:

This Board has no jurisdiction to second-guess the employer’s decision as to the most suitable candidate, nor has it the authority to substitute its views on the candidates for those of the selection committee. The Board’s concern is limited to the fairness of the process, and will only review the process where the process itself is flawed or biased.

The Board in Brander also commented that it was a standard procedure to screen all applicants and then interview those candidates that best met the qualifications for the position. The Board in Brander stated:

The initial screening step is, by its very nature, judgmental, as it determines eligibility for an interview based upon the documentation available in support of each candidate’s application.

In summary, counsel for the Employer argued that there was no allegation that the process of selecting interviewees was unfair or the process was in any way flawed. Partially in reply to the Grievor’s argument, counsel further stated that it was the obligation of the applicant to put his or her best “picture” forward when applying for a job.

Decision

Having reviewed the submissions of the parties I am of the view that counsel for the Employer is correct. The grievance, as presented to the Board, is not arbitrable. Earlier cases, as cited, make it clear that this Board cannot substitute its decision for a management decision and that our jurisdiction in these matters is limited to a review the fairness of the process. Thus this Board will only review the selection process of interviewees where there is an allegation that the process is flawed, biased or somehow discriminatory.

In this case it is clear that the Grievor is of the opinion that the Employer made an error in not interviewing him. But even by the wording of his formal grievance he has no idea why he was not selected. He cannot ask this Board for a complete review of the selection process on the basis that something must be wrong. It is unfortunate for the Grievor that he assumed that as an insider he only need make a very brief application for the position. However, I agree with the argument that it is the applicant’s obligation to present himself in the best and most thorough way that he can. The Grievor had no inherent right to an interview.

Therefore, for the above reasons, this grievance is dismissed.

Dated at Toronto this 21 day of March 1996.