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HomeMy WebLinkAbout1999-1203.Damani.01-04-17 Decision ONTARIO EMPLOYES DE LA COL'RONNE CROWN EMPLOYEES DE L 'ONTARIO GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONE/TELEPHONE. (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILE/TELECOPIE. (416) 326-1396 GSB#1203/99 UNION#99B943 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano Pubhc ServIce Employees Dmon (Damam) Gnevor - and - The Crown m RIght of Ontano (Mimsm the Health and Long - T enn Care) Employer BEFORE Owen V Gra, Vice-ChaIT FOR THE Enc O'Bnen GRIEVOR Counsel Ehot SmIth, Barnsters and Sohcators FOR THE Andrew Baker Counsel EMPLOYER Legal ServIces Branch Management Board Secretanat HEARING July 12 October '30 and '31 and November 8 2000 and February 19 and March 2 and 6 2001 DECISION [1] On July 2 1999 Yasmm Damam filed the followmg gnevance wIth Ie spect to a Job competItIOn. I grIeve that I have been unJustlv demed a competItIOn for a (Project AssIstant Blood Program) ThIs IS contrarv to ArtIcle A('3 1 '32,6'3 16'32 and ARtIcle [SIC] 8 & 9 I ask that I be provIded wIth the detailed results of mv competItIOn and that I be awarded the assIgnment The Blood Program posItIOn to whIch the gnevance refers was a temporary one Havmg regard to ArtIcle 8 6 1 of the current collectIVe agreement, It was not a vacancy to whIch ArtIcle 6 applIed. Although a form of competItIOn was con ducted to fill It the employer was not oblIged to do that Accorchngly the umon chd not pursue the claIm that the employer breached 6 '3 1 and 6 '32 It chd, how ever pursue the claIm that m fillmg the temporary posItIOn the employer had acted m a chscnmmatory fashIOn contrary to ArtIcle '3 of the collectIVe agree ment [2] ApplIcants for the Blood Program posItIOn were solIcIted whIle the gnevor was on a three month temporary assIgnment as a Project AssIstant wIth the Mandatory Programs ComplIance Project By the tIme the hearmg of thIS gnev ance began, the umon was allegmg as part of the gnevance that the employer had acted m a bad faIth and chscnmmatory manner durmg the gnevor S tempo rary assIgnment and m faIlmg to extend It, as well as m faIlmg to award the gnevor the temporary posItIOn m the Blood Program to whIch the wntten gnev ance refers Background ['3] The gnevor began wIth the MmIstry of Health m 1976 as an OAG 6 Her posItIOn was upgraded to OA(~ 8 m the course of a reorgamzatIOn m 1989 Ac corchng to her testImony m thIS proceechng her current OAG 8 posItIOn IS Ad mImstratIVe AssIstant EnvIronmental Health Umt, PublIc Health Survey Branch. 2 [4] In late 1998 the gnevor had two outRtanchng gnevanceR aWaItmg hear mg They had been filed m June 1995 and AuguRt 1997 In them, the gnevor a'-' Rerted that Rhe had been dIRadvantaged m vanOUR Job competItIOnR oocauRe Rhe had earlIer been demed RecondmentR, temporary aRRIgnmentR and other devel opmental opportumtleR that had not been not been the RubJect of competltIOnR The gnevor claImed that thoRe demalR of developmental opportumtIeR were a reactIOn to her race and umon actIvIty and conRtItuted dIRcnmmatIOn on prohib- Ited groundR contrary to the applIcable collectIVe agreement The partlcluarR of the claIm aRRerted when thoRe gnevanceR were later heard at arbItratIOn are Ret out m my decIRIOn dated July 7 2000 m Board FlieR 1581/95 and 1703/98 It IS of sIgmficance here that the matters about whIch the gnevor complamed m- cluded management's alleged faIlure to gIve her adequate or tImely feedback wIth respect to her Job performance and her performance m Job competItIOns The Temporary Position with the Mandatory Programs Compliance Project [5] Durmg the courRe of negotIatIOnR for the Rettlement of her earlIer gnev anceR, the gnevor waR offered the temporary aRRIgnment aR a Project ARRIRtant wIth the Mandatory ProgramR ComplIance Project The offer waR contamed m the followmg letter of January 29 1999 Dear YasnlIn. ThIs letter will confirm our offer of a developmental opportulllty as the Project AssIstant wIth the Mandatory Programs ComplIance Project m the PublIc Health Branch. Your appomtment to the posItIOn will be effectIve February 1 1999 ThIs posItIOn IS classIfied at the OAG9 level and your salary will be $1949 per hour The terms of thIS assIglllllent are as chscussed. The assIglllllent willmItIally be for '3 months wIth the possibilIty of an extensIOn of up to an adchtIOnal '3 months ThIs extensIOn wIll be dependent upon your abilIty to meet the performance ei:pectatIOns of the posItIon whIch will be revIewed wIth you at the begmnmg of the assIgnment I will meet wIth you on a bI weekly basIs to reVIew performance to date and to assIst In the development process Job-related trammg needs will be HlentIfied and will be undertaken at the earlIest possible opportunIty '3 You will retmn your home posItIon In PublIc Health Branch, and you may elect to chscontInue thIS developmental assIgnment WIth two we eks notIce to me and to your home posItIon manager Please Inchcate your acceptance on the lIne below and return to me as soon as possible I look forward to workIng wIth you and wIsh you the very best on your new posItIon. Smcerely Geoff Kettel, Manager Corporate LImson and Resource ServIce PublIc Health Branch ThIs offer was not conchtIOnal on Ms Damam s abandonmg any aspect of her outstandmg grIevances She accepted It [6] On the face of It, the prOVISIOn for bI weekly meetmgs was to the grIevor s benefit That she saw It that way seems apparent from the first portIOn of an e maIl message she sent unsohcItIed to Suellen Watt m the MmIstry s HR Branch (wIth a copy to Mr Kettel) on February 10 1999 after the first such bI weekly meetmg' Dear Sue: In attendance Geoff Kettel and DIane Alexander I met wIth the Manager at hIS request to chscuss my Performance ExpectatIOns COpy attached for your reVIew At that meetmg I verbally presented my expectatIOns to whIch the Manager agreed and are as follows 1) What are we meetmg today about. 2) Need clanficatIOn of settmg up my expectatIOns 3) To acqUIre better knowledge of the IJrO]ect. 4) Better my skills m the area of IJrO]ect management. 5) Ideas as how to manage tune perfornnng so that I can gIve my best perform ance when carrYIng out the IJrO]ect. 6) To meet deadlmes to get better m the Job and get as much trammg as possible wIth assIstance from my employer I hope to achIeve m carrYIng out my responsibilItIes My expectatIOns from my employer where as follows To provIde me wIth feedback on my work assIgmnent and to Inform me anytIme areas where I can Improve and get better To remove the pnnter before our next meetIng. 4 I Rhall return to the expectatIOn about the removal of the prmter and the bal ance of thlR meR Rage later m thlR decIRIOn. At thlR pomt I Rlmply WIRh to hIgh lIght the gnevor R own expectatIOn that Rhe would be provIded wIth feedback on her performance There IR no eVIdence that the gnevor waR concerned or com- plamed about the mcluRIOn of a prOVIRIOn for bl-weekly meetmgR for the purpOReR mclIcated m the offer although It IR apparent Rhe waR conRtItutIOnally RUR!HCIOUR that the provlRIOn mIght not be admmlRtered m good faIth or to her RatIRfactIOn. [7] Geoff Kettel haR been a member of management m the OPS for a number of yearR He came to the MmlRtry of Health m 1996 He became Manager of Corporate LIaIROn and ReRource ServlceR m the PublIc Health Branch m October 1998 JURt a few monthR before the offer of January 29 1999 waR made to MR Damam. ARked how that offer came about, he teRtlfied that there waR a dlRCUR RIOn at management commIttee concernmg provldmg a Remor Recretanal/proJect aRRIRtant development opportumty to MR Damam. He underRtood that thlR wa'-' an mltIatlVe of the HR Branch. He chd not know much about MR Damam. He had a need at that tIme for aRRIRtance for DIane Alexander a Project Manager who reported to hIm. He agreed to provIde the developmental opportumty [8] When MR Damam R temporary aRRlgnment aR her aRRIRtant began, DIane Alexander had been workmg m the PublIc Health Branch for about 2 yearR MR Alexander R mam dutIeR were m three areaR She waR coorchnatmg the Educa tIOnR DaYR a conference for memberR of mumclpal PublIc Health umtR to be held March 1 and 2 1999 She waR workmg on IRRueR relatmg to the momtormg and aRReRRment of mumclpal PublIc Health umtR wIth reRpect to theIr complIance wIth theIr legal oblIgatIOnR She waR alRo conRultant to the Ontano BreaRt Screenmg program. [9] When the PORRlbllIty of her havmg an aRRIRtant arORe MR Alexander pre pared at Mr Kettel R requeRt a deRcnptIOn of the dutleR Ruch an aRRIRtant mIght perform. When It became clear that Rhe would have an aRRIRtant Rhe fleRhed out the firRt deRcnptIOn m what Rhe conRldered to be a more eaRlly read form. The revIRed Job deRcnptIOn waR uRed aR the baRIR for a Performance ExpectatIOnR 5 document uRed m the bl-weekly meetmgR contemplated by the Job offer MR Da mam accepted ItemR correRpondmg to elementR of the Job deRcnptIOn appear m the left hand column of the document PrIOr to each bl weekly meetmg MR Alex ander added commentR pORltIVe or negatIVe about MR Damam R performance OppoRlte the relevant Item. Her commentR were dlRcuRRed at the bl weekly meet mgR whIch were attended by Mr Kettel, MR Alexander and MR Damam. [10] Performance ExpectatIOn meetmg were held on or about February 9 and 2'3 and March 9 and 2 '3 1999 On the baRIR of MR Damam R commentR at theRe bl weekly meetmgR MR Alexander afterwardR mochfied or qualIfied Rome of the commentR m the Performance ExpectatIOnR She chd not make all the changeR MR Damam aRked for however She left unchanged commentR to whIch MR Damam took exceptIOn mchanged when Rhe felt hey remamed valId deRplte what MR Damam had RaId at the meetmg at whIch they were dlRcuRRed The Performance ExpectatIOnR document waR cumulatIVe RubJect to whatever changeR MR Alexander felt appropnate commentR that had been dlRcuRRed Ie mamed m the document, and new COlllillentR were added to It for purpOReR of the next meetmg New commentR were marked to dlRtmgUlRh them from commentR that had already been dlRcuRRed [11] In adchtIOn to MR Alexander R commentR m the Performance ExpectatIOnR document concernmg MR Damam R performance the partIclpantR m the bl weekly meetmgR alRo dlRcuRRed concernR raIRed by MR Damam. Early on Rhe complamed about the fact that a prmter waR located m her work area and that Rhe chd not have VOIce maIl. [12] The deRk m the work area to whIch the gnevor waR aRRIgned had not been occupIed lmmechately prIOr to her arnval. A fax machme and prmter uRed by vanOUR nearby employeeR had been located m that work area. The fax machme waR relocated to another employee R work area JURt before or JURt after MR Da mam arnved The prmter remamed The gnevor complamed that the URe of the prmter by otherR dlRtracted her from her work The balance of her e-maIl of Feb- ruary 10 1999 elaborated on that theme 6 Today (Feb 10/99) I was advIsed by the Manager that the Prmter will not be removed. Let me reIterate that after twenty-two years of my serVIce WIth the OPS I accepted thIS assIgnment as a challenge but I find I am bemg personally challenged wIth that atmosphere create d around my workstatIOn. The sItuatIOn you have created for me IS to say the least extremely physIcally taxIng and stressful. The pnnter In my workstatIOn Interferes wIth my mental thInkIng of work. I cannot stay In a normal thInkIng mode to concentrate wIth the constant stream of actIvItIes gOIng around the pnnter whIch I am sure you would apprecIate can only serve to negatIvely affect my performance of thIS new assIgnment. ThIS Issue also brmgs Into questIOn the health and safety aspect of my present locatIOn whIch ought to be addressed m a more sensItIve manner Although I apprecIate the new challenge my physIcal health IS bemg affected m that I am startmg to feel the anXIety and pressure not normal for what IS supposed to be and ordmary office assIgmllent [13] Mr Kettel sought advIce on whether the prmter posed a rIsk to the grIevor s health and safety and was told there was not an ObVIOUS rIsk. He nev ertheless further mvestIgated movmg the prmter He ultImately decIded not to do so He consIdered that there were unacceptable rIsks assocIated wIth relocat mg the prmter to the only other locatIOn he had IdentIfied as feasIble at the tIme Mr Kettel testIfied that an alternate locatIOn for the prmter was eventually found two years later but m the meantIme It had remamed m that work area wIth two other succeSSIve occupants of It, both of whom had appeared to tolerate the arrangement [14] Mr Kettel was sympathetIc to Ms Damam s request for VOIce maIl 1:e cause he felt every employee should have vo Ice maIl. At the tIme however Mm- Istry pohcy reqmred that for every group of employees wIth VOIce maIl there should be a zero target telephone that would be answered by a hve employee when a caller responded to an outgomg vOIcemaII message by pressmg 0 It took a whIle to work out the zero target Issue m the area that mcluded Ms Da mam. Accorchng to Ms Damam she was told at one pomt that her telephone was to be the zero target, but that chd not happen. She chd get VOIce maIl some tIme around the end of March. 7 [15] MR Damam teRtIfied that Rhe had a problem wIth office RupplIeR The deRk m the work area to whIch Rhe waR aRRIgned chd not have RupplIeR Ruch aR a Rtapler Rcotch tape RCIRRorR and RO on. MR Damam dealt wIth thIR by takmg RupplIeR from the deRk m her home area at whIch Rhe had been workmg before commencmg the temporary aRRIgnment The RuperVIRor there Barbara Mar geRon, aRked that Rhe return the ItemR taken, becauRe a temporary perRon com- mg to work there would need them. In lu teRtImony MR Damam ffiRerted, among other thmgR, that thIR waR an example of the employer R unfaIrly prefer rmg temporary employeeR over permanent oneR - on of the themeR of her teRtI mony m the hearmg of her earlIer gnevanceR [16] MR Damam addreRRed the prmter and RupplIeR IRRueR m an e-maIl meR Rage that Rhe Rent on February 22 to Mr Kettel, wIth unmvIted copIeR to Suellen WattR m HR and Dr Colm D Cuhna Mr Kettel R Rupenor The followmg pa,-; Rage from that e-maIl meR Rage ReemR to me both IlluRtratIVe of her dealmgR wIth Mr Kettel and corroboratIVe of MR Alexander R unchallenged teRtImony about the gnevor R grammar On February 18/99 I returned my pnor belongmgs to myoId desk upon request as per your e-mail dated Feb 18/99 I (lId manage to find whatever necessItIes that I needed for my new desk out of the cupboard. Geoff, now I would like to note that I have come to you for the past month addressIng to you the tnvlals around my new posItIon whIch IS still not clanfied after thIrty days to my full satIsfactIOn of my posItIon but I can see that there was tune found to address the facts of Barbara her e-mml dated Feb 18/99 I feel that you have not put your full potentIal mto solvmg thIS problem that I am Incurnng In my new posItIOn. I am not wntIng to create problems but to solve the problems that IS causmg kaos In my new posItIon, so that I may feel more comfortable In my new posItIon. [17] Mr Kettel teRtIfied that a Remor Recretary at the OA(~ 9 levelIR expected to have certam RkIllR typmg RkIllR famIlIanty wIth certam Roftware mcluchng RpreadRheet Roftware a RenRe of how to claRRIfy mformatIOn, Judgement about prIOntIzmg work, attentIOn to detaIl, commumcatIOn RkIllR and the abIlIty to deal wIth otherR HIR aRReRRment of MR Damam R work durmg the temporary ffi 8 f:.ngnment waR that Rhe waR not at that level, partIcularly wIth reRpect to atten tIOn to detaIl and facIlIty wIth RpreadRheet Roftware She reqmred a lot of check mg and eclItmg that Rhould not have been reqmred at that level. There were alRo clIfficultIeR wIth managmg prIOntIeR, of whIch he gave MR Damam R havmg mIRRed a Rcheduled meetmg wIth MR Alexander aR an example [18] MR Damam gave thIR account of the mIRRed meetmg She waR Rched uled to meet WIth MR Alexander one day at 2 p m. She choRe to go to a reRtaurant for lunch that day At 1 58 p m. Rhe telephoned MR Alexander from the reRtaurant to Ray Rhe would be 5 to 10 mmuteR late for the meetmg MR Alexander told her that the meetmg could not begm late becauRe Rhe had another meetmg Rched uled at 2 '30 p m. MR Damam returned to the office at about 2 10 p m. Her 2 00 p m. meetmg wIth MR Alexander clId not occur MR Damam R explanatIOn m the hearmg waR that Rhe would not have gone to the reRtaurant If Rhe had known MR Alexander had another meetmg Rcheduled for 2 '30 p m. [19] MR Alexander teRtIfied that Rhe expected an admmIRtratIVe aRRIRtant at the gnevor R level to have the followmg RkIllR and trammg' profiCIency m the URe of MIcroRoft Word, Excel and Powerpomt, the abIlIty to wnte a letter excellent grammar and attentIOn to detaIl. Over the courRe of the temporary aRRIgnment Rhe found the gnevor lackmg m all of theRe areaR MR Alexander dIRcovered that MR Damam R grammar waR not very good, nor waR her attentIOn to detaIl. AI though MR Damam waR pretty good at W orcl, Rhe waR not famIlIar wIth Excel, the RpreadRheet Roftware m URe m the MmIRtry MR Alexander had wanted to Ret up mformatIOn concernmg the health umtR m a RpreadRheet and MR ill mam had clIfficultIeR domg that MR Alexander had to gIVe her mRtructIOn m the Roftware m order that Rhe could perform faIrly baRIc work Rettmg up RpreadRheet columnR and entermg mformatIOn mto them. The work then had to be Rent back for correctIOn when, for example the gnevor kept entermg the nameR of regIR trantR for the EducatIOn DaYR m the column m whIch Rhe waR RuppoRed to enter the name of the PublIc Health umt at whIch the regIRtrant worked. There were 9 alRo errorR m Rettmg up the RpreadRheet RO that the CORt of travel of regIRtrantR could be calculated and totalled. [20] By the tIme that extenRIOn of the temporary aRRIgnment waR conRIdered, recent changeR m the fundmg of health umtR had RhIfted the focuR of the comph ance program away from aRReRRment towardR educatIOn. The major focuR of the educatIOn component of the program waR on EducatIOn DaYR that were to be or gamzed and conducted for health umt Rtaff. A good deal of MR Damam R work had been on Rettmg up the firRt EducatIOn DaYR whIch were held m March 1999 No further work on Ruch an event waR needed for Reveral monthR thereafter (~lVen the financIal RItuatIOn m hIR area, Mr Kettel felt that an extenRIOn of MR Damam R temporary pORItIOn could not be JURtIfied on the baRIR of need, partIcu lady m VIew of chfficultIeR they had expenenced wIth MR Damam R performance No further temporary pORItIOn waR eRtablIRhed to aRRIRt the perRon who took over MR Alexander R work when Rhe left that pORItIOn at the end of Apnl1999 to take another pORItIOn m the MmIRtry [21] At one pomt It waR aRRerted on MR Damam R behalf that the termR of the offer of the temporary aRRIgnment gave her the nght to an extenRIOn, whether or not the employer had any contmumg need, If Rhe met the performance expecta tIOnR of the pORItIOn. I do not agree wIth that mterpretatIOn, but the pomt IR moot becauRe It IR apparent that Rhe clId not meet the performance expectatIOnR [22] It IR appropnate to repeat here Rome of the obRervatIOnR I made when I dIRmIRRed the gnevor R earlIer gnevanceR [17] I accept as a general matter that raCIsm IS out there as the gnevor put It at one pOInt. I agree wIth unIOn counsel s subnllssIOn that raCIsm IS often latent, m the sense that those whose conduct IS Influenced bv racIst attItudes mav not openly acknowledge It It IS not necessary for the umon to prove that chscnnllnatIOn on the basIs of race was the sole or even a major reason for employer conduct detrlluental to the grIevor If chscrmllnatIOn on the ba-ns of race played any part In the employer s treatment of the grIevor then It breached the collectIve agreement prOVISIOn that prohibIted such chscnmmatIOn. The presence and effect of racIst ath tudes mav be chfficult 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 chscrmllnatIOn shilts the burden of chsprovIng the allegatIOn to those accused 10 of It. The same may be sald about antI unIOn anImus and chscnnllnatIOn on the bmns of umon actIvIty [18] The gnevor says she cannot understand why she has not advanced In the cIvil SErVICe unless It IS because she IS the vIctIm of chscnmInatIon on the basIs of her race or umon actIvIty or both. Her subjectIve belIef that she IS the vIctIm of ch.'lCnmmatIOn, however strong IS not proof that she IS [23] Durmg the hearmg there was an mItIal faIlure by the employer and Its counsel to make full clIsclosure of documents they had undertaken to produce There was also a clIfficulty wIth the form and completeness of certam purported COpIeS of relevant documents DIsturbmg as those matters were I am not per suaded that they mvolved any delIberate mIsrepresentatIOn, or that they support the gnevor s claIms of clIscnmmatIOn. [24] Dmon counsel cross-exammed Ms Alexander and Mr Kettel exhaustIVely m aId of Ms Damam s search for eVIdence of bad faIth m the admmIstratIOn of the temporary a<.; sIgnment TheIr testImony thoroughly persuades me there was no such bad faIth, and that the gnevor s race played no part m any of theIr deal mgs wIth or decIsIOns about Ms Damam. [25] In her testImony and later m the argument umon counsel presented on her behalf, Ms Damam pomted to a number of CIrcumstances that she felt dem- onstrated that the temporary posItIOn was managed m bad faIth, m retalIatIOn for her past complamts and attempts to advance and to clIscourage her from complammg or seekmg advancement m the future I do not propose to catalogue those CIrcumstances and arguments here I have revIewed each of them. I am not persuaded that they demonstrate any clIscnmmatIOn on the basIs of race or un- IOn actIvIty [26] I am not persuaded that the temporary assIgnment was offered or con ceIVed or desIgned m bad faIth eIther The gnevor s eVIdence was not sufficIent to ShIft the burden of persuaSIOn on thIS pomt to the employer so It IS of no conse quence that the employer clId not call anyone to explam why the temporary pOSI tIOn was offered or structured as It was 11 The Tem porary Position with the Blood Program [27] In September 1998 the ProvmceR and TerntoneR together formed Cana chan Blood ServIceR, to take over functIOnR prevIOuRly performed by the Cana chan Red CroRR Ontano provIded about half of the fundmg for the new RervIce ItR MmIRtry of Health waR the lead mmIRtry WIthm that mmIRtry reRponRIbIlIty for Ontano R mvolvement mItIally reRted wIth the Health EconomIcR Branch. In the Rprmg of 1999 there waR dIRcuRRIOn of tranRferrmg that reRponRIbIlIty to the Health ProtectIOn Branch. The budget related to that reRponRIbIlIty waR tranR ferred to the Health ProtectIOn Branch aR of Apnl 1 1999 No permanent pORI tIOnR came WIth that budget The Branch decIded to offer a temporary 5Y2 month pORItIOn to aRRIRt wIth the Rtart up m thIR area Mr Kettel teRtIfied that they chd not have anyone m mmd for the pORItIOn when that decIRIOn waR made On Apnl21 1999 there waR an mformal pORtmg bye-maIl, mVItmg applIcantR for the pORItIOn. MR Damam waR one of the reCIp18ntR of that pORtmg She applIed for the pORItIOn. [28] The pORtmg had been drafted by Mr Kettel R Recretary on hIR mRtructIOn whIle he waR away from the office on bURmeRR He left the detaIIR of the meRRage to her It went out late m the day on Apnl21 and had a cloRmg date of Apnl2'3 When Mr Kettellearned of the cloRmg date he thought that the applIcatIOn pe nod waR too Rhort aR a matter of prmcIple He dIrected hIR Recretary to extend the cloRmg date and advIRe all potentIal applIcantR [29] MR Damam claImR to have been told by Mr Kettel R Recretary or to have overheard her tell Romeone elRe (It IR not clear whIch) that herR waR the only ap plIcatIOn receIVed by the ongmal cloRmg date The umon chd not call the Rource of thIR hearRay to ffiY whether It waR true In any event, Mr Kettel teRtIfied wIthout contrachctIOn that when he dIrected that the cloRmg date be extended he chd not know who If anyone had applIed for the pORItIOn. He chd not learn any thmg about applIcantR untIl the extended cloRmg date had paRRed At that pomt there were two canchdateR MR Damam and Nancy McGumeRR 12 ['30] Mr Kettel and DavId Reeleder mterv18wed both apphcantR Mr Reeleder waR the perRon handlmg the CanadIan Blood ServIce file They aRked each apph cant the Rame Ret of prepared queRtIOnR MR McGumeRR gave more complete ac curate and mRIghtful anRwerR, and got a better Rcore on the mtervIew Mr Kettel and Mr Reeleder decIded to offer MR McGumeRR the Job Mr Reeleder made the offer Once the pORItIOn had been accepted by MR Mc(~umeRR MR Damam waR mformed that Rhe waR not the RucceRRful canchdate ['31] WhIle the competItIOn proceRR here may not have had all of the featureR that the GSB haR RaId that competItIOnR for permanent pORItIOnR Rhould, the re IR nothmg about the chfferenceR that dIRadvantaged or waR calculated to dIRadvan- tage MR Damam relatIVe to the other canchdate Nothmg m the cIrcumRtanceR comeR cloRe to eRtabhRhmg that dIRcnmmatIOn on the rnRIR of race played any part m the decIRIOn to award MR Mc(~umeRR the temporary aRRIgnment ['32] WIth reRpect to the allegatIOn of dIRcnmmatIOn on the baRIR of umon oc tIVIty I waR told agam about the requeRt that waR made to MR Damam wIth re Rpect to faxeR arnvmg from the umon after Rhe had returned to her home pORI tIOn. The added detaIl of the eVIdence preRented on thIR occaRIOn chd not change the ImpreRRIOn I formed of theRe Rame eventR when the umon put eVIdence about them before me m Rupport of MR Damam R earher gnevanceR Mana gement R conduct m thoRe eventR chd not conRtItute dIRcnmmatIOn on the baRIR of umon actIvIty nor doeR It demonRtrate any mclmatIOn to engage m Ruch dIRcnmIna tIOn. There IR nothmg m the eVIdence before me that perRuadeR me that there waR any Ruch dIRcnmmatIOn durmg or m relatIOn to the gnevor R temporary a,-; RIgnment or the fillmg of the temporary aRRIgnment m the Blood Program. Decision ['33] For the reaRonR gIVen, thIR gnevance IR entIrely wIthout ment and IR hereby dIRmIRRed ['34] A central theme of the gnevor R complamtR m thIR and the preVIOUR gnev anceR waR that only dIRcnmmatIOn on the baRIR of her race or her umon actIvIty 1'3 can explam the fact that Rhe haR not advanced ooyond the OAG 8 level m her approxllllately 25 yearR m the OntarIO CIVIl RervIce From the eVIdence I heard It IR clear that the gnevor lackR computer communIcatIOn and other RkIllR that are mcreaRmgly Important m pORItIOnR at hIgher levelR of reRponRIbIhty and mde pendence The energIeR Rhe haR thuR far expended caRtmg groundleRR aRperRIOnR on the motIVatIOnR of management mIght be more productIVely refocuRed on llll- provmg her quahficatIOnR for the kmdR OfpoRItIOnR to whIch Rhe a<,;pIreR Dated at Toronto thIR 17th day of Apnl, 2001 ~v: Owen V Gray VIce-ChaIr 14