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HomeMy WebLinkAbout2003-3124.Naczynski.06-01-16 Decision Crown Employees Commission de Nj Grievance Settlement reglement des griefs Board des employes de la Couronne ~ Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2003-3124 UNION# 2003-0502-0002 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (N aczynskI) Union - and - The Crown In RIght of Ontano (Mimstry of EconomIC Development and Trade) Employer BEFORE RandI H. Abramsky Vice-Chair FOR THE UNION ElIzabeth Nurse Ryder Wnght Blair & Holmes LLP BarrIsters and SOlICItorS FOR THE EMPLOYER Rosalyn PnncIpe and George ParrIS Counsel Mimstry of Government ServIces HEARING Apnl 6 July 28 August 24 & 26 October 17 November 24 & 29 2005 AddItIOnal wntten submIssIOns December 9 & 20 2005 2 DeCISIon On October 1 2003 the gnevor Ms JulIa NaczynskI filed a gnevance contestIng the outcome of a job competItIOn In the (then) Mimstry of Enterpnse, Opportumty and InnovatIOn, for the posItIOn of CommumcatIOns Officer It IS the Umon's contentIOn that the posItIOn should have been awarded to Ms NaczynskI, as the semor applIcant, under ArtIcle 6 of the collectIve agreement. It IS also the Umon's posItIOn that the competItIOn was fatally flawed. The Incumbent, Mr Nell Trotter was provIded notIce of thIS proceedIng and partIcIpated In the heanng. The other successful applIcant, Ms Miranda HawkIns, has SInce left the government and her posItIOn was elImInated. She dId not attend the heanng. Facts 1 Ms. Naczynski's Work Experience Ms NaczynskI began her career as a general assIgnment reporter for The Chatham Dally News, and after SIX years there became a general assIgnment reporter for the London Free Press for a one-year penod. She then, for two years, worked for CIBC as a Wnter/EdItor In the Internal CommumcatIOns umt, PublIc RelatIOns dIvIsIOn, workIng on the bank's Internal newsmagaZIne Ms NaczynskI has a Bachelor of JournalIsm degree from Carleton UmversIty Ms NaczynskI began workIng for the government In 1988 as a Semor EdItor In Employee CommumcatIOns wIth the Mimstry of Commumty and SocIal ServIces That posItIOn, lIke the posItIOn Involved In the dIsputed competItIOn, was classIfied as an InformatIOn Officer 3 (I. 0 3) It Involved researchIng and wntIng the Mimstry's Internal staff newsletter entItled 3 "DIalogue" She would also assIgn free-lance wnters and dId photography as well as partIcIpate, WIth semor staff, on the edItonal content of the publIcatIOn. DIalogue was produced approxImately ten tImes per year and, accordIng to Ms NaczynskI, was always "wIthIn budget" and met "deadlInes" In addItIOn, she served as the PlaIn Language CoordInator and traIner for the Mimstry an ImtIatIve whIch encouraged the use of plaIn, understandable language In government commumcatIOns She would also wnte a column called "Today's ChIld." She also dId some commumcatIOns/strategIc planmng and project coordInatIOn. Her posItIOn was declared redundant In 1998 and she was redeployed to an 1.0 3 posItIOn In the Mimstry of Health. Her tItle there was "Correspondence Wnter" In the Corporate Correspondence Umt. In that posItIOn, her job was to research, wnte and edIt responses for semor officIals to sIgn to letters and emalls from the publIc, constItuents and vanous stakeholders The job Involved lIaisIng wIth admInIstratIve and semor staff to provIde an appropnate response In November 2000 she applIed for and won a job competItIOn for the posItIOn of Semor Wnter In the CommumcatIOns Branch of the Mimstry of Energy SCIence and Technology whIch IS also an 1.0 3 posItIOn. Of all of the posItIOns that Ms NaczynskI held, thIS one was the most sImIlar to the job Involved In the dIsputed competItIOn. She was part of a small team that supported commumcatIOns for the SCIence and technology dIvIsIOn of the Mimstry She testIfied that In thIS posItIOn, she "dId the majonty of the wntIng for the DIvIsIOn's commumcatIOns" - IncludIng news releases, backgrounders, medIa advIsones, fact sheets, and speeches She would also assIst WIth correspondence and represent the Mimstry at trade shows Both her resume and her testImony state that she dId commumcatIOns planmng and project coordInatIOn, although In 4 neIther case dId she gIve any concrete examples She also performed an edItIng functIOn In thIS job reworkIng annual reports, busIness plans and polIcy reports In June 2002, however her dIvIsIOn In the Mimstry of Energy SCIence and Technology was merged Into the Mimstry of Enterpnse Opportumty and Technology It was her understandIng, at the tIme, that she would contInue the same work In the new Mimstry Instead, after a few months, she was placed Into the Correspondence and EdItonal Umt. In that posItIOn, her work was the same as her posItIOn WIth the Mimstry of Health. On a few occaSIOns, however she asked for and receIved other assIgnments such as wntIng for Ontano BusIness Report, edItIng artIcles, wntIng a speech, as well as coordInatIng an announcement regardIng fundIng for McMaster UmversIty In thIS last actIvIty Ms NaczynskI wrote a news release, medIa advIsory backgrounder and remarks for the Mimster to make Unfortunately the event was cancelled and It dId not take place AccordIng to her manager at the tIme, AssIstant DIrector of CommumcatIOns AllIson Barr and DIrector of CommumcatIOns Brent Kearse, the merger had been unexpected and It took management some tIme to place all of the new employees The Mimstry at the tIme, had a need for a correspondence wnter and It was theIr determInatIOn, based on Ms N aczynskI' s background, that Ms NaczynskI could fulfill thIS role It was not, however what Ms N aczynskI wanted to do She felt that the posItIOn dId not fully utIlIze her skIlls, expenence or abIlItIes and that, because she had transferred Into the Mimstry management dId not fully understand her capabIlItIes To that end, Ms NaczynskI arranged to meet pnvately wIth both Mr Kearse and Ms Barr She dId so In late Apnl, early May 2003 and put on, what she descnbed, as a "dog and 5 pony" show presentIng her skIlls and abIlItIes and samples of her work. Each meetIng lasted approxImately thIrty mInutes In her VIew the meetIng wIth Ms Barr was "a good meetIng." The same was not true of her meetIng wIth Mr Kearse She testIfied that at the end of that meetIng, Mr Kearse told her that he had heard qUIte a bIt about her that he had heard that she was "aggressIve" a "bull In a chIna shop" and "not a team player" She stated that she was taken aback by hIS comments and found It "very dIfficult to speak." He then "brushed aSIde" hIS comments and told her that that was all "water under the bndge" that she was startIng over In a new J ob Mr Kearse acknowledged makIng statements along those lInes - that he had "heard" these comments about Ms NaczynskI - and stated that he dId so to provIde her wIth constructIve feedback. It was not hIS personal VIew of her He stated that he had lIttle InteractIOn wIth her pnor to the IntervIew and had an open mInd dunng the IntervIew 2. Neil Trotter At the tIme of hIS applIcatIOn for the posItIOn, Mr Trotter had worked In commumcatIOns for approxImately three years He first worked as a CommumcatIOns AssocIate for Yorkton SecuntIes, an Independent Investment bank and brokerage, workIng In medIa relatIOns and promotIOn of the company's research analysts and market commentators In February 2001 he went to ScotIabank as a PublIc Affairs Consultant, where he dId medIa relatIOns, Issues management, financIal reportIng and commumcatIOns support. Both In hIS testImony hIS IntervIew and hIS resume, he provIded detaIled examples of hIS work and accomplIshments He subsequently became actIng Semor Consultant, PublIc Affairs, where hIS responsIbIlItIes Increased. 6 Pnor to hIS work In CommumcatIOns, Mr Trotter worked as a Research Analyst at Yorkton SecuntIes where he worked as part of a team prepanng eqUIty research and reports He receIved a Bachelor of Arts In Urban Development from the Leeds MetropolItan UmversIty In England, and completed the CanadIan SecuntIes Course and was half-way through a CertIficate In PublIc RelatIOns from Ryerson UmversIty 3 Miranda Hawkins Based on her resume, at the tIme of her applIcatIOn, Ms HawkIns was a Wnter 1.0 3 wIth the Mimstry of Culture, Tounsm and RecreatIOn. She began workIng for the government In July 2002, as an 1.03 In Tour LOgIStICS and MedIa RelatIOns In that capacIty she was a member of a team that developed processes for event planmng, management and ImplementatIOn, InvolvIng 47 events In an eIght week penod. She also assIsted In managIng the Mimster's contact wIth medIa and event orgamzers In September 2002, she receIved an actIng posItIOn as Culture Correspondence Wnter wntIng Mimstry correspondence and lIaised wIth program areas to research content. In January 2003 she became a Wnter wntIng speeches and remarks for the Mimster and semor officIals, and wrote news releases "complYIng wIth Mimstry messagIng. " Pnor to her work wIth the government, Ms HawkIns worked for SIX years, freelance, In vanous commumcatIOn areas - develoPIng key messagIng through press releases, marketIng matenals and web sItes for small and large compames, non-profit orgamzatIOns and the Ontano government. She also wrote artIcles of Interest for vanous publIcatIOns She co-authored a book, and dIrected three epIsodes for a televIsIOn productIOn. For three years before that, she was a producer for CBC TelevIsIOn, Midday and Midday News, dId Visual Research for the NatIOnal MagazIne and Midday and was Program Co-ordInator for Midday 7 Ms HawkIns receIved a Bachelor of Arts from Queen's UmversIty and took a CBC wntIng course 4 The Job Competition In Apnl 2003 the Mimstry posted for two opemngs for an InformatIOn Officer In the PublIc Affairs branch. The postIng, In relevant part, stated as follows The Mimstry of Enterpnse, Opportumty and InnovatIOn, CommumcatIOns and PublIc Affairs Branch, reqUIres multI-skIlled commumcatIOns professIOnals to provIde strategIc commumcatIOns expertIse Inform/advIse Internal mImstry clIents on corporate posItIOn/messages, desIgn/prepare/evaluate a wIde vanety of commumcatIOns products, plan/orgamze specIal events, and provIde medIa relatIOns LocatIOn Toronto Qualifications supenor wntIng/edItIng skIlls, knowledge of commumcatIOns theory /techm ques stakeholder management, evaluatIOn, demonstrated abIlIty In medIa relatIOns, problem-solvIng and research skIlls judgment, ImtIatIve, abIlIty to work Independently and as part of a team wIth mImmal supervIsIOn, able to handle competIng pnontIes In fast-paced envIronment. The competItIOn was an "open" competItIOn, meamng that persons outsIde of the Ontano publIc servIce could apply The postIng appeared not only In Internal publIcatIOns but In the Globe and Mall as well The Mimstry receIved over 1200 applIcatIOns for these two posItIOns Both Mr Kearse and Ms Barr were on the selectIOn commIttee and, In conjUnctIOn wIth Human Resources, screened them all Fifteen applIcants, IncludIng the gnevor were selected for an IntervIew ApproxImately half of the applIcants to be IntervIewed worked for the government, although only Ms NaczynskI was from InsIde the branch. The rest were from outsIde the publIc servIce AccordIng to Ms Barr the applIcant pool was nch In "top-notch" and "extremely qualIfied" 8 candIdates The selectIOn for an IntervIew was based on the applIcants' resume and cover letter matchIng them to the qualIficatIOns for the posItIOn. It does not appear that the applIcants' resumes and cover letters were further used In evaluatIng the candIdates No score was recorded for theIr resume Instead, sconng was based on an oral IntervIew WIth Ms Barr and Mr Kearse and a wntIng exerCIse - specIfically wntIng a news release Personnel files were not revIewed, and reference checks were only done on the top three candIdates Ms Barr explaIned that It was Mimstry polIcy to do reference checks only on the top candIdates To check the references all fifteen IndIVIduals to be IntervIewed, In the Mimstry's VIew would be onerous and unfairly raise expectatIOns Further accordIng to Mr Kearse, reVIeWIng an Internal applIcant's personnel file, could potentIally gIve Internal candIdates an unfair advantage, SInce they would not be able to reVIew the personnel files of outsIde candIdates The Mimstry was lookIng for a multI-skIlled commumcatIOns generalIst who could wnte, handle medIa relatIOns, develop commumcatIOns strategy and planmng and event and Issues management Ms Barr In conjUnctIOn wIth Human Resources and Mr Kearse, developed the five IntervIew questIOns and the mImmal acceptable answers, whIch she then revIewed wIth Mr Kearse Each questIOn was worth ten pOInts, although there was no specIfic breakdown for each answer The wntIng exerCIse was also worth ten pOInts Each applIcant to be IntervIewed was gIven a package of InformatIOn from Human Resources to read before the IntervIew whIch explaIned the job and how the IntervIew would be conducted. 9 Of the fifteen candIdates IntervIewed, Ms NaczynskI scored tenth overall, wIth an average score of 36 out of 60 Mr Trotter one of the successful candIdates, scored 55 and Ms HawkIns, the other successful candIdate, scored 53 The questIOns, In my VIew were all job-related. The questIOns were as follows 1 Oral CommumcatIOn SkIlls What makes you a good candIdate for thIS posItIOn? Tell us bnefly about your expenence In prepanng commumcatIOns plans, dealIng wIth the medIa, gIVIng commumcatIOns advIce to clIents, solvIng problems and workIng under pressure 2 Government PnontIes Please tell us what you belIeve to be the government's top pnontIes and how you thInk that the Mimstry of Enterpnse, Opportumty and InnovatIOn development and trade ImtIatIves contnbute to aChIeVIng the government's agenda? 3 CommumcatIOns Planmng Please gIve us an example of an effectIve commumcatIOns strategy that you have developed. What were the key elements of your strategy? How dId you posItIOn the ImtIatIve wIth the targeted audIence? What was your medIa relatIOns strategy? How dId It turn out? 4 Project Management ManagIng a project can be challengIng, especIally when you are dealIng wIth conflIctIng pnontIes and tIght deadlInes Please descnbe the dIfferent steps of a project you have managed what worked well, what dId not work so well, how you would go about It If you had to do It agaIn? 5 Scenano QuestIOn A major Ontano company announces that It IS pulIng out of the ProVInce and relocatIng to the U S The Mimster wants commumcatIOns advIce on how to handle the medIa scrum outsIde the LegIslature What do you advIse? For each questIOn, Ms NaczynskI was consIstently rated lower by both Ms Barr and Mr Kearse than the successful candIdates They both dId theIr sconng Independently and scored based on the "mInImUm acceptable answer" but because there was no specIfic breakdown In regard to the answers, there was some sUbjectIvIty Involved In the sconng. In part, the score was based on theIr ImpressIOn of the qualIty of the answer 10 I do not find It necessary to go Into great detaIl about the candIdates' answers or the sconng. Generally Mr Kearse and Ms Barr testIfied that the successful applIcants' answers were more complete, detaIled, and complex than the gnevor's answers, and demonstrated a hIgher level of skIll and sophIstIcatIOn. The eVIdence at the heanng bore that assessment out. For example, In response to QuestIOn 3 the example of a commumcatIOns strategy/plan, she descnbed her work for a Harp SocIety concert In whIch she prepared a news release and poster and faxed them to 33 arts and entertaInment edItors, wIth the goal of gettIng free publIcIty and Increased attendance She receIved "some medIa calls" and referred calls to an actIOn lIne In the end, though, due to an Ice storm, attendance at the concert was low For thIS answer Ms NaczynskI receIved a score of 6 from Mr Kearse and 5 from Ms Barr In her own VIew she should have receIved a 7 5 or 8 Ms NaczynskI's response was vIewed by the panel as a sImple example, whIch dId not demonstrate a level of SOphIstIcatIOn In commumcatIOns planmng. Ms Barr testIfied that she dId not reVIew her strategy or explaIn her tactIcs, and there was "not a lot of planmng Involved." She stated that the gnevor "dId not demonstrate the kInds of thIngs that we were lookIng for at a SOphIstIcated level" They were also surpnsed that she pIcked an example whIch had been unsuccessful Mr Trotter In response to thIS questIOn, dIscussed hIS work whIle employed In commumcatIOns for ScotIabank, In regard to a fund raiSIng dnve the bank was dOIng In conjUnctIOn wIth Royal Victona HospItal In Barne He dIscussed hIS target audIences, the development of hIS commumcatIOns strategy and workIng wIth local medIa and officIals from 11 the HOspItal and the bank, the decIsIOn to hold a local event kIckIng off the fund-raisIng dnve There was coverage In the local papers, and In the Internal employee newsletter and the fundraIsIng goal was achIeved. Mr Trotter was rated a 10 by Mr Kearse and gIven a 9 by Ms Barr SImIlarly Ms HawkIns dIscussed her work promotIng Ontano Libranes Week, wIth the goal of keepIng It fresh. She dIscussed her ObjectIves, her commumcatIOns strategy tactIcs and ImplementatIOn as well as the outcome of the project. She was gIven an 8 by Mr Kearse and a 9 by Ms Barr A sImIlar dIspanty In the qualIty of the gnevor's answers eXIsted In the other questIOns as well The panel regarded the answers of Mr Trotter and Ms HawkIns as more complete, more pro-actIve and SOphIstIcated than the answers of Ms NaczynskI It IS my vIew that the eVIdence at the heanng supports theIr conclusIOn, There may have been some questIOns, notably her response to QuestIOn 5 that mIght have been gIven an addItIOnal pOInt, but overall, the eVIdence supports the sconng of both Mr Kearse and Ms Barr On a number of the questIOns, Ms Barr and Mr Kearse were surpnsed by the gnevor's low score gIven her work expenence and tIme In the government as well as the Mimstry For example, In regard to the first questIOn, Ms NaczynskI focused on her JournalIsm and wntIng expenence, but dId not dISCUSS Issue management, strategIc commumcatIOns planmng or event planmng. In Ms NaczynskI's VIew however she "aced" that questIOn and should have receIved a score of 10 When asked why In eXamInatIOn In chIef, she replIed that she had "already been an 1.0 3 for 15 years" and she had "been In the job dOIng the job" In regard to the second questIOn, whIch Involved Mimstry and government pnontIes and would seem to be a questIOn In 12 whIch the gnevor would excel, she dId not dISCUSS a number of the government's top pnontIes, or elaborate on how the Mimstry contnbuted to them. Both Mr Kearse and Ms Barr recall her answer as beIng "short" Both Mr Kearse and Ms Barr agreed, on cross-eXamInatIOn, that If the candIdate dId not bnng out theIr expenence In the IntervIew It was not consIdered. Ms Barr stated that she belIeved It was fairer that way SInce some candIdates were known to the panel whIle others were not. In terms of the wntIng exerCIse, Ms NaczynskI was rated a 7 out of 10 for her press release, whereas both Mr Trotter and Ms HawkIns were rated hIgher Mr Kearse explaIned that hIS lower score of the gnevor was based on the fact that her news release read more lIke a factual newspaper artIcle than a posItIve messagIng pIece whIch, In hIS VIew was the purpose of the release The eVIdence bears thIS assessment out. Both Mr Trotter's and Ms HawkIns's news releases were more "message-dnven" than the gnevor's work, whIch was more factual In some ways, Ms NaczynskI's work was more InfOrmatIve, and more tIed to the facts, but It dId not send the posItIve messagIng that the evaluators were lookIng for as well as the releases of the successful candIdates In her reVIew of the wntten assIgnment of both Mr Trotter and Ms HawkIns dunng the heanng, Ms NaczynskI noted a number of techmcal flaws, partIcularly In relatIOn to Mr Trotter's work, for whIch she belIeved pOInts should have been deducted. She agreed that It was "mtpIckIng" but they were mIstakes she noted based on her edItonal background. Mr Kearse explaIned that they were not expectIng the candIdates to know or follow exact Mimstry reqUIrements and dId not belIeve marks should have been deducted. 13 Mr Trotter who was gIven a score of 9 on the wntIng assIgnment, Included InformatIOn he had obtaIned from Mimstry's websIte but whIch was not Included In the packet of matenals for the wntIng assIgnment. In the Umon's VIew thIS provIded an unfair advantage to Mr Trotter AccordIng to both Ms Barr and Mr Kearse, however there was no prohibItIOn on IncludIng other source matenals, and they belIeved hIS researchIng that addItIOnal InformatIOn demonstrated ImtIatIve, Interest and gOIng "the extra mIle" Both Ms NaczynskI and Mr Trotter brought portfolIos of theIr work whIch the panel revIewed but dId not evaluate or Include a score for It. A portfolIo was not reqUIred of the candIdates and not all of the candIdates brought one wIth them Ms Barr testIfied that one cannot be sure that the work In a portfolIo IS really done by the applIcant, so they preferred to rely on the wntIng assIgnment and the IntervIew to understand the candIdates' expenence and abIlItIes FolloWIng the IntervIew Ms NaczynskI wrote a thank-you note to Mr Kearse and Ms Barr It states Thank you both for my IntervIew today As they say "I was thnlled just to be nomInated!" The questIOns haven't change that much from the last tIme I went through thIS - there are fewer of them, but they ARE longer I never feel I answer IntervIew questIOns adequately - I'd rather be askIng the questIOns, that's what I'm used to - but I hope my resume my wntIng and my personalIty have shown you that I'm the nght person for thIS job Thanks agaIn, and I look forward, as always, to workIng wIth you In any capacIty Ms NaczynskI testIfied that she finds It dIfficult to "sell" herself and felt that she could have said more In the IntervIew and done more to promote herself On cross-eXamInatIOn, 14 however she stated that she wntes somethIng sImIlar In every thank-you note after a job IntervIew and that she felt that she answered the questIOns "adequately" Once the sconng was completed and tallIed, the references of Ms HawkIns, Mr Trotter and the thIrd place candIdate were revIewed. Mr Kearse testIfied that the references were very posItIve and confirmed theIr selectIOn. On September 19 2003 Mr Kearse advIsed the gnevor that she was not one of the successful candIdates, before the results were announced publIcly The Instant gnevance followed. The gnevor testIfied that she gneved the results because the "result was not logIcal or reasonable" gIven her expenence and qualIficatIOns compared to those of the successful candIdates She felt underutIlIzed In her present posItIOn, and felt that the job competItIOn was an opportumty to move on and demonstrate that she was capable of more Decision After carefully consIdenng all of the eVIdence presented, the arguments of the partIes and the case law I conclude that that there were flaws In the runmng of thIS competItIOn, but that thIS IS not an appropnate case to eIther award the gnevor the posItIOn or to order a re-run of the competItIOn. 1 Were there flaws in the competition? The case law establIshes that the employer "must employ a process of decIsIOn-makIng desIgned to consIder the relatIve qualIfi catIons and abIlIty of the candIdate[ s] In a competItIOn " Re OPSEU (Quinn) and Ministry of Transportation and Communications (1979), GSB No 9/78 (Pnchard) at p 3 To that end, sufficIent relevant InfOrmatIOn must be 15 obtaIned so that a thorough and proper companson may be made As the Board explaIned In Re Quinn, supra at p 10 The employer must desIgn and utIlIze a selectIOn process In job competItIOns that IS consIstent WIth the purposes of the selectIOn process Thus, under thIS collectIve agreement, the process must be desIgned to elIcIt In a systematIc manner sufficIently comprehensIve InformatIOn about each applIcant relevant to the qualIficatIOns and abIlIty reqUIred to perform the job In order that a fair and reasonable assessment of the relatIve strengths of the candIdates can be undertaken and the final selectIOn made In thIS case, the Mimstry relIed exclusIvely on the candIdates' scores on the IntervIew questIOns and wntIng assIgnment. I find no flaw In the IntervIew questIOns or the sconng, In general I cannot agree wIth the Umon that the gnevor was systematIcally underscored by the panel Her responses to the questIOns were not as thorough, detaIled or SophIstIcated as Ms HawkIns or Mr Trotter and her marks reflect that. I cannot conclude, on the eVIdence, that the gnevor should have been gIven addItIOnal pOInts, and certaInly not enough addItIOnal pOInts so as to place her In a relatIvely equal posItIOn. Nor IS there any credIble eVIdence of bIas on the part of eIther Mr Kearse or Ms Barr Although Mr Kearse relayed to the gnevor comments he had heard two of her co-workers say - that he heard she was "aggressIve" "lIke a bull In a chIna shop" and "not a team play" - he dId not share that VIew Indeed, they had lIttle InteractIOn before the IntervIew I credIt Mr Kearse's testImony that he relayed those comments to her as constructIve feedback, and that he had an open mInd regardIng the competItIOn. The fact that Ms Barr's sconng of the gnevor was sIgmficantly consIstent WIth Mr Kearse's sconng also undermInes the contentIOn that Mr Kearse's sconng was bIased. Ms NaczynskI's meetIng wIth Ms Barr went well and she advIsed the gnevor at the tIme, that the Mimstry would be hmng soon. The fact that she was aware of Mr Kearse's comments to the gnevor does not render her sconng suspect. On the contrary I 16 find that the marks that Ms NaczynskI receIved were a fair reflectIOn of the qualIty of her answers, and not the product of any bIas agaInst her InRe OPSEU(Esposito) and Ministry of Housing (1995),GSB No 2168/92 (Kaplan) the eVIdence of potentIal bIas was much stronger One of the panelIsts was the gnevor's supervIsor and they had some dIfficultIes He had gIven the gnevor a wntten warnIng for lateness, whIch she gneved. That gnevance was stIll outstandIng at the tIme of the competItIOn. He had also counseled her about her work performance Even In these cIrcumstances, the Board found no credIble eVIdence of bIas Also In Re OPSEU (Esposito) supra, the Board ruled that although the gnevor may not have been gIven all of the credIt for her answers that she mIght have been, there was no overall unfairness In the gradIng process The Board stated, at pp 28-29 [W]hIle a handful of questIOns mIght have been marked dIfferently and whIle other assessors mIght have been more generous In the assIgnment of grades, we cannot say havIng carefully revIewed the gnevor's answers and grades and those of the successful applIcants, that there was any overall unfairness In the gradIng process CertaInly there was no eVIdence that the gnevor was sIngled out for partIcularly harsh treatment when It came tIme to assIgn grades, nor IS there any credIble eVIdence supportIng the assertIOn that Mr McBnde was bIased agaInst the gnevor WhIle the eVIdence does suggest that the gnevor mIght have receIved some addItIOnal pOInts for a number of questIOns, we find that, on balance, her final grade accurately reflects her performance In thIS competItIOn, and that her performance was [not] comparable to that of the three successful applIcants The same conclusIOn applIes here I also cannot conclude that the sconng of the questIOns was Improperly sUbjectIve Although the panel had a "mInImUm acceptable response" It was not dIvIded Into a numencal breakdown wIth a structured markIng scheme There IS some case law support for the VIew that a structured markIng scheme IS preferable but there IS also case law that recogmzes that the 17 answers for all questIOns cannot be mathematIcally broken down. In OPSEU (Kai) and Ministry of Solicitor General and Correctional Services GSB No 3289/92 (Abramsky) at p 35 I held that "It was not clear how standard sconng could be achIeved for commumcatIOn skIlls or Interpersonal skIlls" In thIS case, the panel dId follow theIr "mInImUm acceptable response" In sconng, and evaluated the answers provIded In companson to that response But they asked open-ended questIOns whIch the candIdates could respond to In any number of ways, leavIng some leeway for Judgment by the panel Under these cIrcumstances, I find no flaw that there was some sUbjectIvIty In the sconng. The Umon also took Issue WIth the weIght gIven by the Mimstry to wntIng and research skIlls, at whIch the gnevor excelled. I can not agree The Mimstry clearly consIdered wntIng and research abIlIty and the eVIdence showed that the posItIOn Involved a vanety of other commumcatIOns expenence and skIlls As the Board held In OPSEU (D Bent) and MinistlY of Transportation, supra at p 9 Although It IS Important that the cntena used In the selectIOn process relate to the reqUIrements of the Job as set out In the Job specIficatIOn It IS not necessary for every sIngle cntena of the Job specIficatIOn to be gIven the exact mathematIcal eqUIvalent In the selectIOn process Rather It IS sufficIent If there IS a rough correctIOn between the reqUIrements of the Job as set out In the Job specIficatIOn and of the cntena set forth by the selectIOn commIttee The Umon contends that the panel should have, but dId not, ask follow-up questIOns of candIdates to elIcIt more InformatIOn, partIcularly In the gnevor's case SInce they knew that she had more expenence than she had demonstrated. In my VIew the decIsIOn not to ask follow-up questIOns, provIded the same practIce IS followed for all the candIdates, IS not a flaw In thI s case, the same practIce was followed for all candIdates 18 The Umon also asserts that the wntIng assIgnment was flawed because Mr Trotter was allowed to use matenals not provIded for by the Mimstry He Incorporated InformatIOn he had obtaIned from the Mimstry's web sIte about the auto Industry In hIS sample news release In the Umon's submIssIOn, thIS gave Mr Trotter an unfair advantage In support, It cItes to OPSEU (Thompson) and Ministry of Correctional Services (2002), GSB No 1999/98 (Hams) In that case, the Board ordered a re-run, In part, based on flaws In the wntten test. The candIdates dId not all have the same amount of tIme to complete the test, and not all of the candIdates were provIded wIth a partIcular form of calculator The Board concluded that the test was unfairly admInIstered In both the tIme allowed and the matenals provIded. In thIS case, all of the candIdates were provIded the same matenals and eqUIpment and had the same amount of tIme to complete the assIgnment. Mr Trotter used research he had done, In preparatIOn for the IntervIew to add facts about the auto Industry to hIS news release Ms HawkIns added a quote from Buzz Hargrove whIch was not In the matenals LIkewIse, Ms NaczynskI made up a quote from the Mimster whIch was not part of the matenals provIded. There was no prohIbItIOn on USIng or relYIng on other matenals or quotes I find that Mr Trotter was not provIded wIth an unfair advantage when he utIlIzed the research he had done In hIS news release Nevertheless, there were a number of flaws In the manner In whIch the Mimstry proceeded. The Mimstry's pnmary flaw was ItS exclusIve relIance on the IntervIew and wntIng assIgnment to compare the candIdates The applIcants' resumes and cover letters were revIewed only to determIne If an IntervIew would be granted. They were not used past that pOInt. What the Board has reqUIred IS that the applIcatIOn form and/or resume be consIdered by the employer In 19 assessIng the candIdates It need not gIve It a numencal score As the Board held In Re OPSEU (Bent) supra at p 6 "[i]t IS sufficIent to show that these matters were consIdered and gIven due consIderatIOn, that It IS not Ignored " In thIS case however once the screemng process for an IntervIew was completed, the applIcatIOn and resume were not referred to agaIn. That IS a flaw LIkewIse, the gnevor's personnel file was not revIewed, nor were any supervIsor reports elIcIted. Instead, the selectIOn was based solely on the applIcants' IntervIew scores and wntIng assIgnment score In Re Esposito supra at p 26 the Board stated "As the Board has noted In a legIOn of cases, where a selectIOn panel relIes InordInately on IntervIews It does so at ItS penl " EssentIally the Board has consistently held that It IS not sufficIent for the employer to obtaIn thIS InfOrmatIOn for the top few candIdates only SInce "the InformatIOn should have been gathered and consIdered for all applIcants granted an IntervIew as part of the employer's oblIgatIOn to systematIcally and comprehensIvely gather InfOrmatIOn about candIdates" Re Esposito supra at p 26 In Re OPSEU (D.Bent) supra at p 4 the Board was even more emphatIc regardIng a mImstry's decIsIOn to only contact the supervIsor of the successful candIdate rather than check the references of all who obtaIned an IntervIew The Board stated The eVIdence IS clear that the Mimstry only contacted the supervIsor of the successful candIdate and dId not contact any other supervIsor ThIS practIce eXIsts In spIte of numerous prevIOUS Gnevance Settlement Board decIsIOn that say It IS an essentIal part of the selectIOn process to do a reference check on the candIdates ThIS Mimstry however seems to adopt the practIce that that they are only venfYIng theIr decIsIOn by checkIng wIth the supervIsor of the successful candIdate presumably to see of the reference check bears out theIr OpInIOn. This again emphasizes the slavish devotion that the Ministry seems to have yt,ith respect to intervieyt, scores and its failure to understand that an intervieyt, is only part of the selection process, another part being a reference check for all of the candidates yt,ho have at least obtained intervieyt,s.(emphasIs added) 20 Although I can apprecIate the Mimstry's VIew that callIng all fifteen candIdates' references would be onerous and mIght unfairly raise expectatIOns, the Board's Junsprudence could not be clearer It IS truly hard to understand why an employer would not follow the Board's clear decIsIOns on thIS Issue In so rulIng, I cannot agree that because thIS was an open competItIOn there was no such reqUIrement In thIS case I accept that personnel files and dIrect supervIsor reports may at tImes, be very dIfficult, If not ImpoSSIble, for the employer to obtaIn for outsIde candIdates, partIcularly If the candIdate does not want theIr current employer to know that they are seekIng a new posItIOn Further outsIde employers may be for legal or other reasons, unwIllIng to share an employee's personnel file In thIS manner If so then havIng thIS InformatIOn for some candIdates, but not others, may provIde an advantage to an applIcant from InsIde the government. It IS a dIlemma SInce, In an open competItIOn, the employer may wIsh to "make the selectIOn cntena equal to all who apply" Re OPSEU (D Bent) supra at p 9 Nevertheless, the Board has concluded that personnel files and supervIsor reports form part of the InformatIOn that the employer should ascertaIn. GIven the sIgmficance of an employee's nghts under ArtIcle 6 I do not find that thIS reqUIrement should be abandoned In an open competItIOn. The Umon also contends that the Employer should have consIdered and gIven weIght to the gnevor's portfolIo The panelIsts testIfied that they dId not do so because not all candIdates provIded one and because they thought that the IntervIew questIOns and wntIng assIgnment provIded a full evaluatIOn. Further they felt that one can not be sure that the matenals In a portfolIo are really the work of the candIdate I find no flaw In the employer's faIlure to consIder and gIve weIght to the gnevor's portfolIo 21 Consequently the eVIdence establIshes that there were a number of flaws In thIS competItIOn. The next questIOn IS whether on the balance of probabIlItIes, those flaws were matenal 2. Did the flaws affect the outcome of the competition? In a Job competItIOn gnevance, the onus IS on the Umon to establIsh that the gnevor was relatIvely equal In terms of qualIficatIOns and abIlIty But If the competItIOn IS so fundamentally flawed as to prevent a proper assessment of that from beIng made, a re-run may be reqUIred. In contrast, where the flaws are de minimis or could not, on the balance of probabIlItIes, have affected the outcome, a vIOlatIOn of the collectIve agreement wIll not be found. In D Bent, supra, a two-part analysIs was set forth. SpecIfically the Board stated at p 12 [I]t seems clear that the onus In on the Umon to establIsh not only that the defects eXIsted but that had the defects not occurred, that the gnevor would have got the posItIOn In other words, If the Umon IS able to show that there were procedural defects In the selectIOn process then they must show on the balance of probabIlItIes that had those defects not occurred, the gnevor would be found to be relatIvely equal ThIS standard, partIcularly for a re-run, was questIOned In OPSEU (Suave) and Ministry of Transportation (1992) GSB No 1695/91 (Gray) In OPSEU (Cordileone Jamieson) and Ministry of Transportation (1997), GSB No 1228/94 (FIsher) Vice-Chair FIsher clanfied that hIS decIsIOn In D Bent, supra, IS "only to be used when the defect IS easIly corrected (lIke Ignonng an Inappropnate questIOn and adJustIng the score accordIngly) It IS not to be used when to try to predIct the outcome absent the procedural defects would amount to mere speculatIOn or guesswork." (page 4) 22 ConsIdenng all of these cases, and the other cases cIted to me It seems that there are two standards - one for ordenng the gnevor Into the posItIOn and one for ordenng a re-run. If the Board IS to order the gnevor placed Into the posItIOn, the Umon must prove, on the balance of probabIlItIes, that the flaws yt,ould have affected the outcome In other words, the gnevor must show on the balance of probabIlItIes, that he or she would demonstrate relatIve equalIty If a proper selectIOn procedure had been done In a re-run sItuatIOn, the Umon must establIsh, on the balance of probabIlItIes, that the flaws could have affected the outcome If neIther onus IS met, the gnevance must be dIsmIssed. The Umon suggested, In ItS wntten submIssIOns, that the Board changed the onus of proof In these cases In Re Cordileone Jamieson, supra I do not agree Although there IS language In that decIsIOn whIch may be read that way there was no dIscussIOn In the decIsIOn of such a maJor change In the Junsprudence Further In Re Suave supra at p 34 the Board agreed wIth the decIsIOn In D Bent that the questIOn of whether the result would have been more favorable to the gnevor If qualIficatIOns and abIlIty had been properly assessed "IS a questIOn on whIch the umon bears the ordInary burden of proof on a balance of probabIlItIes" I therefore cannot conclude, based on one sentence In a decIsIOn, that the Board changed the onus of proof In OPSEU (Suave) supra at p 31 the Board held that after D Bent, supra, "an unsuccessful applIcant who complaIns that a selectIOn commIttee faIled to gather appropnate sorts of InformatIOn can be expected to put before the Board any of the mISSIng InformatIOn whIch supports hIS or her claim to the Job" I agree It IS not sufficIent merely to state that the InfOrmatIOn was Improperly not assessed. It must be submItted and shown that It would have, or could have, made a dIfference 23 In thIS case, the Umon asserted that the employer Improperly faIled to consIder the gnevor's resume her personnel file and supervIsor evaluatIOns, and her portfolIo and that had those thIngs been consIdered, the gnevor would have been found to be relatIvely equal There are a few dIfficultIes wIth that argument. FIrst, the Umon dId not submIt Into eVIdence the gnevor's personnel file or any supervIsor evaluatIOns It provIded no eVIdence to show these thIngs would have or could have made a dIfference The documents were not Introduced, nor was any testImony elIcIted about what InformatIOn would be contaIned In her personnel file or a supervIsor evaluatIOn. I do not belIeve that requmng the Umon to provIde thIS type of eVIdence IS unreasonable or ImpossIble, as the Umon submIts The gnevor has access to her personnel file She may have receIved a performance appraisal or feedback from a supervIsor It IS certaInly not ImpossIble for the Umon to obtaIn thIS type of eVIdence Second, the gnevor's resume and cover letter do not reveal a great deal of expenence In the type of work performed In the CommumcatIOns Officer posItIOn. The Umon argues, however that because she performed sImIlar work In the past she IS at least "relatIvely equal" to the successful applIcants It asserts that If the Employer had properly consIdered her resume - and her personnel file and supervIsor evaluatIOn - It would have realIzed that she had the type of expenence the Mimstry sought, and that she was, at least, relatIvely equal There IS some substance to the Umon's argument. Clearly her work In MEST was related to the type of work In the CommumcatIOns Officer posItIOn. Her resume does IndIcate that she dId "commumcatIOns planmng/strategIc planmng and proJect coordInatIOn of vaned 24 branch products, and lIaisIng wIth semor staff to obtaIn approvals" and that she was "part of a small commumcatIOns team supportIng the government's messagIng " But there are no specIfics of her expenence In her resume or cover letter SImIlarly there were no specIfics In her answers In the IntervIew nor In her testImony Throughout, there were no specIfic examples of what she dId In these areas or accomplIshed. For example, what commumcatIOns plans or medIa event dId she develop who was her target audIence, what was her commumcatIOns strategy and what was the outcome? None of thIS InformatIOn was provIded. Yet thIS was exactly the type of InfOrmatIOn that the panel was lookIng for In ItS evaluatIOn of the candIdates, and whIch they receIved from both Mr Trotter and Ms HawkIns Consequently I cannot conclude, based on the gnevor's resume cover letter her answers dunng the IntervIew or her testImony that she was "relatIvely equal" to Mr Trotter and Ms HawkIns I cannot conclude that had the panel consIdered her resume or cover letter that It would have affected the outcome The Umon further contends that the IntervIew was not reflectIve ofMs NaczynskI's true expenence or knowledge It argues that she has dIfficulty "sellIng" herself and should not be penalIzed for that. It pOInts to the fact that both Mr Kearse and Ms Barr were surpnsed by the gnevor's answers, gIven her expenence and knowledge There are, of course some people who cannot "sell" themselves well In an IntervIew I am not convInced that Ms NaczynskI IS necessanly one of them, gIven her testImony at the heanng and her "dog and pony" show whIch took confidence and courage to do But there are people lIke that, whIch IS why the IntervIew should not be the sole determInant of a competItIOn. 25 Other relevant InfOrmatIOn must be gathered so that a complete and fair evaluatIOn of the relatIve skIlls and abIlItIes of the candIdates may be made An applIcant, however cannot be gIven pOInts for what the panel knows about them. A panel member cannot gIve a candIdate pOInts for knowledge or expenence they "know" the candIdate has when the candIdate dId not demonstrate that knowledge dunng the IntervIew OPSEU (Esposito) supra at p 28 If that was allowed, Job competItIOns would become unfair and a complete farce The fact, however that some people may not do well on an IntervIew IS why other sources of InformatIOn must be revIewed. The assessment must be made on demonstrated knowledge and skIlls - through the IntervIew and/or test, the applIcatIOn or resume, the cover letter personnel file and references In contrast to the lack of detaIl In the gnevor's resume and cover letter the cover letter and resume of Ms HawkIns goes Into sIgmficant detaIl about her expenence In event planmng, management and ImplementatIOn, her wntIng, her skIlls In medIa relatIOns and her expenence develoPIng "key messages and to determIne effectIve methods of delIvery these messages to the publIc" and workIng wIth vanous stakeholders She effectIvely tIed all of her expenence to the reqUIrements set out In the postIng. The same IS true of the resume of Mr Trotter It IS far more detaIled about hIS work and specIfic accomplIshments and tIes In dIrectly to the reqUIrements of the posItIOn. The eVIdence further showed that not all 1.0 3 posItIOns are the same 1.03 IS the Job classIficatIOn, not the specIfic Job The vast maJonty of the gnevor's work was In wntIng and edItIng, for whIch she won a number of awards Consequently whIle she was an 1.03 for fifteen 26 years, that alone does not speak to her qualIficatIOns and skIlls for the CommumcatIOns Officer posItIOn. DespIte hIS relatIve youth, Mr Trotter appears to have had more dIrectly relevant expenence than the gnevor and seems to have done far more of the types of thIngs that the Job reqUIred. He also dId a much better Job of commumcatIng that expenence In the IntervIew and In hIS resume Based on the eVIdence presented, the same IS true of Ms HawkIns GIven the type of Job In Issue - a CommumcatIOns Officer - that fact IS sIgmficant. The Umon also argued that the Employer should have consIdered Ms NaczynskI's portfolIo EarlIer I ruled that ItS faIlure to do so was not a flaw In the competItIOn, sInce the candIdates were not asked to provIde one and some, IncludIng Ms HawkIns, dId not. Nevertheless, even If the panel had consIdered the portfolIo of Ms NaczynskI, I conclude that It would not, and could not have changed the result. Mr Trotter's portfolIo was decIdedly supenor Consequently on the eVIdence presented, I cannot conclude on the balance of probabIlItIes, that had the employer more fully consIdered the gnevor's resume and applIcatIOn, or portfolIo It would have, or could have, affected the outcome Nor IS there any eVIdence that the gnevor's personnel file or supervIsor reports would have or could have affected the outcome The dIfference In the scores was 33% It IS a sIgmficant hurdle to overcome As the Board held In Re Esposito supra at p 27 had the employer done reference checks and revIewed the gnevor's personnel file they "would have become aware that the gnevor dId have some Job knowledge whIch she had faIled to commumcate dunng the IntervIew" as well as 27 a "performance appraisal whIch, In the overall, ranks the gnevor mIdway between satIsfactory and commendable" Nevertheless the Board determIned "that a more thorough gathenng of InfOrmatIOn of InformatIOn would not, In all of the CIrcumstances of thIS case have changed the result." In my VIew the same conclusIOn applIes here One can easIly understand why Ms NaczynskI filed thIS gnevance She IS clearly a woman of great capabIlItIes, expenence, determInatIOn and commItment to the publIc servIce She has provIded many years of valuable servIce There IS no doubt that she wIll contInue to render valuable servIce to the employer In the future However whIle I conclude that there were flaws In thIS competItIOn, and so declare I cannot find that the Umon has establIshed, on the balance probabIlItIes, that the gnevor IS relatIvely equal to the successful candIdates, or that thIS IS an appropnate case to dIrect are-run. AccordIngly for the reasons set forth above, the gnevance IS dIsmIssed. Issued at Toronto thIS 16th day of January 2006