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HomeMy WebLinkAbout2021-0495.Goldstein.23-11-02 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 GSB# 2021-0495 UNION# 2021-0376-0003 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Goldstein) Union - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFORE Bram Herlich Arbitrator FOR THE UNION Angela Zhu Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Michael MacLellan Crawford Chondon & Partners LLP Counsel HEARING July 28, April 13 and October 13, 2023 - 2 - Decision [1] In October 2020 the employer posted to fill a vacancy in the position of Assistant Manager in an “A” store in Keswick, Ontario. The grievor applied but was not successful. She alleges that the employer’s failure to award her the position was a violation of her rights under the terms of the collective agreement in place between the parties. [2] The parties filed a partial agreed statement of facts. A number of documents were filed on consent. These related chiefly to the conduct of the job competition process, including the records of the three panelists who conducted the interviews as well as their scoring notes for the grievor and for the incumbent. We also heard the viva voce evidence of the grievor in support of her claim. After the union closed its case, the employer indicated that, beyond the documentary evidence already filed, it would not be tendering any further evidence and the matter proceeded to final argument. [3] The parties’ agreed facts were as follows: Partial Agreed Statement of Facts – July 28, 2023 1. The Parties are bound to a collective agreement in effect from April 1, 2021 to March 31, 2024. 2. During the 2013 bargaining period, the Parties agreed to insert the following language with respect to certain job competitions which remains in the applicable collective agreement: 22.5 …(c) For C and D Stores and Assistant Manager positions where qualifications and ability are relatively equal, seniority shall be the determining factor. 3. The Grievor, Natalie “Jenny” Goldstein has been employed with the Employer as a Customer Service Representative since 2007. The Grievor has been a Shift Leader for the LCBO since 2016 and a full-time employee since 2018. 4. The Grievor was the most senior applicant for Assistant Manager in an A Store in Keswick, Ontario in October 2020. 5. The Incumbent is Deborah Martin. At the time of the job competition, the Incumbent was a casual employee. 6. The Grievor and Incumbent work in stores in separate Regions. 7. Job competitions for A Store Assistant Manager positions are based on the following elements: - 3 - a. Leadership Assessment i. Scored out of 5 and 30% weight b. Technical Aptitude Assessment i. Scored out of 28 and 30% weight c. Interview i. Scored out of 40 and 30% weight d. Evaluation/PA Review (also referred to as “Reference Check”) i. Scored out of 25 and 10% weight 8. There is no discretion in the scoring of the Leadership Assessment and the Technical Aptitude Assessment. 9. A candidate must achieve a minimum score of 60% to be eligible for the position sought. 10. The Grievor’s total score was 55.32%. She did not meet the minimum score to qualify for the position. 11. The “relatively equal” threshold is a 10% spread. That is, the most senior applicant who scores within 10% of the highest scoring applicant will be awarded the position sought. 12. Five employees applied for the Assistant Manager position in Keswick, Ontario. The Grievor was the most senior applicant. The incumbent, Deborah Martin, was the third most senior applicant. 13. The Incumbent’s total score was 80.05%. The Incumbent had the highest score of all five applicants, and neither of the two more senior applicants scored within 10% of the Incumbent’s final score. 14. The scores for the Grievor and the Incumbent were as follow: Element Grievor Incumbent Leadership Assessment (30%) 4/5 5/5 24% 30% Average Interview Score (30%) 11/40 25/40 8.25% 18.75% Technical Aptitude Assessment (30%) 15/28 21/28 ~16% 22.5% Manager Evaluation / “Reference Check” (10%) 17.5/25 22/25 7% 8.8% Total %age ~55.32% 80.05% 15. The Incumbent was offered and accepted the Assistant Store Manager position in the Keswick store. 16. Interviews were conducted in panels of three interviewers: District Manager Richard Watterson, District Manager Sergio Sain, and Human Resources Advisor Jill Lockhart. - 4 - Interviews for both Grievor and Incumbent took place on January 6, 2021. 17. The Grievor had a performance appraisal for the period of February 1, 2021 to January 31, 2023 on which she achieved a rating of “Exceeds Expectations” from her store manager Erin Wright, and the following comment: Jen is an integral part of the team at Store #226. She is dedicated and hard-working. She provides training and teaching to junior and senior employees. Jen adheres to policies and procedures, follows H&S protocols and participates in charity drives. She has an infectious laugh and likes to have fun in the workplace. Jen was an asset to the team during the re-location. Jen has aspirations to become an Assistant Manager and I believe her contribution and experience at #226 has enabled this to be possible in the very near future. Thank you for everything. 18. Prior to the job competition, the Incumbent was Acting Store Manager of a C class store. Prior to the job competition, the Grievor had never been Acting Store Manager. [4] The issue in the case is relatively straightforward. There were four components of the candidates’ scores in the job competition. In two of these (the leadership assessment and the technical aptitude assessment) the scoring was objective, there was no margin for discretionary variations on the basis of the subjective views of an assessor. These assessments accounted for 60% of the total score for each applicant. Subject perhaps to the grievor’s claim of inadequate training opportunities, no issue was taken with the assigned scores for these portions of the grievor’s final score. The other two components accounted for the remaining 40% of the total score (30% for the interview and 10% for the reference check). These latter two components were, of course, to some extent, subject to the subjective evaluation of the panel members or the manager performing them. (I note that the scores assigned by each of the three interview panelists showed little variation in respect of either the grievor or the incumbent, who scored consistently and significantly higher.) It is these scores that were the principal subject of the grievor’s dissatisfaction. [5] The gap between the grievor’s total score (55.32%) and that of the incumbent (80.05%) is impressive (and, indeed, as it stands, the grievor’s score was even shy of the 60% the parties agreed was the threshold for eligibility for the position). In this context, the grievor faces an uphill battle to close this 25-point gap by - 5 - adjusting scores. And while her ultimate goal need only be relative not absolute equality, the mathematical challenge is exacerbated by the fact that any claimed additional points must come not only from the 40 of those points attributed to the “non-objective scores”, but rather from the less than 25 of those points not already credited to the grievor. [6] The parties agree that the grievor would be entitled to rely on her seniority to claim the job, provided her qualifications and ability are relatively equal to the incumbent. The employer constructed and conducted a job competition process to allow it to compare the relative abilities and qualifications of the applicants. The results of that process identified the dramatic gap between the qualifications and abilities of the grievor and the incumbent. The union did not challenge the propriety of the design of the job competition process nor the reasonableness of the questions put to the various applicants. The basic integrity of the process design is not in issue. Fundamentally, what we have is the grievor complaining about the scores assigned to her in the interview process. [7] It was the grievor’s dissatisfaction with the scores she received during the interview process that occupied the bulk of her evidence before me. We reviewed, in detail, the eight different questions posed (under four different subject headings) by the three employer interview panelists and the answers provided by the grievor, as reflected in the interviewers’ notes and the grievor’s recollection of what transpired in the interview. We also considered the answers the incumbent provided to the same questions, as reflected in the only source of evidence in that regard – the notes of the interviewers. No direct or other evidence regarding the incumbent’s interview was provided. The grievor identified things she thought she would have said in the interview that were not reflected in the interviewers’ notes. She also identified instances where she felt her answers were as good as but not scored as high as those of the incumbent. [8] It is important to highlight some of the inherent frailties of the evidence placed before me. The interview in question was conducted in January 2021; the grievor testified in July 2023. She had no notes of the interview or any other - 6 - contemporaneous record (apart, of course, from the interviewers’ notes, which she sought to impugn). The temporal remove explains why the grievor frequently testified to what she “would have said”, rather than presenting a clear and certain recollection. Indeed, given the passage of time, it would be unrealistic to expect such a clear recollection of all of the intricate details of the discussion during the interview. [9] The evidentiary onus in this case falls squarely on the union. But, all other things being equal, in a bare evidentiary contest between the interviewers’ contemporaneous notes and the grievor’s current recollection of events some two and one half years removed, the advantage hardly goes to the grievor. [10] I do not propose to here review each of the questions posed, the notations of the interviewers in respect of each of the answers provided by the grievor and the incumbent, or the grievor’s recapitulation of her current recollections in that regard. Suffice it to say that, while there is room for some marginal degree of disagreement between the grievor and her evaluators as to her assessment, there is simply nothing that strikes me as improper or otherwise meriting or requiring my intervention with respect to the conduct of the job competition assessment. [11] The expectations of unsuccessful job competition applicants who file grievances are not always aligned with the legal reality that attends the arbitral determination of job posting grievances. A primary function of this Board is to oversee and preserve the proper functioning of the collective agreement. It would be misguided, however, to assume that means this Board functions as some sort of appeal body where unsuccessful job competition applicants can routinely have their scores reviewed and amended by this Board on a point-by-point basis. This Board will be more concerned with serious and fundamental shortcomings in the design and application of job competition evaluation processes rather than with a question (or a collection of questions) such as whether a grievor ought to have scored seven rather than six out of ten on a particular interview question. [12] In any event, it is unnecessary to pursue this line of consideration any further. The grievor, in her evidence, was very specific in her assertions (which were adopted - 7 - in argument) about the scores she ought to have attained as compared to the scores assigned to her through the process. However, in cross-examination it was put to her and she acknowledged that had she been awarded all of the points she claimed, she would have landed much closer to but still short of a ranking of relative equality to the incumbent. Put simply, even if her score merited some adjustment (a proposition I have not accepted), that adjustment would have made no difference to the outcome. [13] Although improper scoring was clearly the grievor’s principal complaint, the union advanced other sometimes overlapping issues in support of the grievance. These can all be consolidated as follows. It is claimed that the employer acted in bad faith; that it had a preferred candidate (the incumbent) and deliberately diminished the grievor’s score while inflating that of the incumbent in order to effect the desired result; that it had deprived the grievor of training opportunities to preclude her successful advancement; the incumbent, on the other hand, had been provided with at least one significant training opportunity not afforded the grievor. [14] These secondary aspects of the grievor’s case can readily be disposed of. [15] First, the general assertion of bad faith conduct on the part of the employer is entirely unsubstantiated. The union acknowledged, even in its opening statement, that it had no direct or other positive evidence of employer bad faith. Rather, it would be asking me to infer bad faith from the other facts of the case. Principal among these were the differential scores awarded to the grievor and the incumbent. But I have already concluded that there was nothing untoward in that regard, no evidence (apart, of course, from the grievor’s opinion) which could possibly form the foundation for a finding of bad faith or any conclusion to undermine the bona fides of the scores assessed by the various employer evaluators. [16] Second, subject to one exception, the complaints regarding lack of training were diffuse and vague. No specific events were particularized or outlined in any meaningful detail. There was no suggestion that any related grievances had been - 8 - filed or that any provisions of the collective agreement regarding training opportunities had been violated. [17] Finally, the exception to the above involved a training opportunity, an acting assignment which was awarded to the incumbent. This, claims the grievor, is part of the unfair advantage provided to the incumbent by the employer. But here the provisions of the collective agreement do come into play. The employer brought them to our attention and the union did not dispute that the assignment in question was made pursuant to the provisions of Article 22.5 (b) which requires that a temporary assignment such as the one to which the incumbent was appointed is to go to the “most senior employee in the next lowest classification in the same class series in the … store involved”. There was no dispute that that was the incumbent, who worked in a different store from the grievor. Thus, this temporary assignment to the incumbent was not contrary to the collective agreement. Rather, it was required by it. [18] Having regard to all of the foregoing, I am satisfied that the instant grievance is entirely without merit and must be and hereby is dismissed. Dated at Toronto, Ontario this 2nd day of November 2023. “Bram Herlich” Bram Herlich, Arbitrator