PSGB# 2019-2372

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

McCready

Complainant

• and –

The Crown in Right of Ontario (Treasury Board Secretariat)

Employer

BEFORE

Marilyn Nairn

Vice Chair

FOR THE COMPLAINANT

Laura McCready

FOR THE EMPLOYER

Lisa Compagnone Treasury Board Secretariat Legal Services Branch Senior Counsel

HEARING

April 15 and 21, 2021

Decision

1The Complainant, Laura McCready, filed this complaint with the Board on December 23, 2019. It alleges, inter alia, that competition #139771 was fundamentally flawed and that, in a separate and earlier incident, the Complainant had been subjected to sexual harassment.

2The hearing of the complaint originally convened on January 28, 2021. At that time the Board was advised that, upon receipt of the complaint and through the auspices of Treasury Board Secretariat, the Employer had engaged an external investigator to inquire into allegations of discrimination and reprisal with respect to the competition and the allegation of sexual harassment made by the Complainant. The investigator’s reports had only just been released and the parties had had no time to review and/or consider those reports. While discussions were held, the complaint was not resolved, and a further date was set.

3Also at that time, the Employer advised that it would be raising a preliminary objection to the timeliness of the allegation of sexual harassment, as that was alleged to have occurred in 2013. The Complainant subsequently conceded that the allegation was not timely and that therefore the Board had no jurisdiction to inquire into that allegation. As noted, that allegation was included within the mandate of the external investigation and a separate report was provided to the Employer and to the Complainant.

4This matter convened again on April 15, 2021. At that time it became apparent that the parties were agreed that the investigation report concerning the remaining allegations, and specifically those in relation to competition 139771 provided the basis for relevant factual findings with respect to this complaint. Rather than require a hearing process wherein witnesses would be required to testify and be subject to cross-examination, the parties agreed that the report provided a sufficient and appropriate factual basis from which the Board could proceed.

5At the time of competition 139771 the Complainant was working in a Team Lead position in the Centre for Public Service Labour Relations and Compensation (“CPSLRC”). She is currently working as a manager in the Institutional Operations Branch in the Ministry of the Solicitor General. Posted competition 139771 was for two temporary manager positions within CPSLRC. At the same time, competition 139772 was being run for temporary Team Lead positions in CPSLRC. Thirteen candidates were interviewed for manager. Twenty candidates were interviewed for the Team Lead role. As some candidates applied to both, there is some overlap in those numbers.

6Having regard to the facts gleaned from the investigation, it is apparent that there were a number of flaws in the running of competition 139771.

7First, Witness A was the only constant for all of the interviews. Although the interview panel consisted of three people, two of the panellists did not attend all of the interviews and did not participate in the scoring of those candidates. Some candidates, including the Complainant, were interviewed by all three panel members while other candidates were interviewed by and received scores from only two panel members. As a result, some candidates received an overall score that averaged the score of only two panel members, not three, an inherent inconsistency in the scoring process.

8Second, Witness A described a process for identifying potential “successors”. As Witness A described it, a candidate must speak to their boss’s boss to express interest in progressing to be identified as a potential successor. This ‘process’ played a role in this competition. Yet the need for candidates to have expressed prior interest in a position was not identified with reference to any OPS recruitment standard and was not well-known. It is also not an exclusive reflection of one’s interest in a position. Individual H was not awarded a manager position in part due to a failure to express such interest, notwithstanding having scored higher than two of the successful candidates. Individual H was working in another Ministry with little likelihood of knowing that CPSLRC would give weight to such a prior expression of interest.

9Third, it was not apparent why Individual H was allowed to compete for the manager role, given that, according to Witness A, Individual H’s application was filed after the competition had closed. Although it had no impact on the Complainant in the circumstances, this reflects an inconsistent application of the posted rules of the competition.

10Similarly, there were three manager positions reporting to Witness A, but only two positions were posted. Individual G had been acting in the role and participated in the competition, scoring very highly. Individuals E, F, and G were the successful candidates. However, there was no explanation for the decision not to post all three positions, making those opportunities clear to all candidates, nor why Individual G’s success was not announced at the same time and in the same manner as the other two successful candidates.

11Finally, the scoring process placed enormous weight on interview performance. This created a significant disadvantage for those with strong on the job performance (including conducting oral briefings) but who nonetheless perform poorly in interviews for any number of reasons. While interview performance is a relevant and significant assessment criterion, it cannot be conflated with performance on the job. That is, performance on the job remains independently relevant in the assessment of skills, abilities, and attributes, including leadership qualities and skill. Those assessments also need to reflect awareness of unconscious biases that may reflect inappropriate considerations or stereotypes.

12The Complainant was also witness to a comment made by a male senior executive member shortly after the competition process. There was no dispute that the comment was made and that it was both insensitive and unprofessional. That has been acknowledged by both the individual and the Employer. Such comments are not simply “optics” and must be understood beyond simply the characterization of a ‘bad joke’. Comments from senior leadership lend credence to what will be considered acceptable behaviour in the workplace and the comment demeaned the legitimate success of Witness B as much as it gave rise to a perception of there being inappropriate barriers to advancement.

13The Complainant acknowledged that other candidates performed better in the interview relative to her and that therefore the decision not to promote her in this competition was supported. The Complainant received largely uniform scores from all three panelists that were lower than other candidates who competed. However, pursuing this complaint in order to give some light to the flaws in the competition and to the surrounding circumstances remained an important and relevant consideration for the Complainant.

14The remainder of the Complainant’s allegations are not supported, although interview feedback provided to the Complainant was ill-considered and harsh.

15In the normal course of remedial consideration of a complaint before the Board, these identified flaws in the competition process might warrant an order that the Employer re-run the competition so as to ensure a complainant the appropriate opportunity for the promotion decision to be made, and be seen to be made, on an objective standard.

16The Complainant was qualified for the position of manager as she was screened into the competition. However, on her own acknowledgment, she did not compete as well as others. The Complainant is not asking that the competition be re-run. Nor has anyone else challenged this competition through a complaint to the Board.

17Therefore, having regard to all of the above, I find that the running of competition 139771 was flawed. However, the Complainant would not have been the successful candidate in any event. With the exception of the inappropriate comment described in paragraph 12 above, the remaining allegations were not supported by the evidence. These proceedings are hereby terminated.