HomeMy WebLinkAbout2006-1469.McDonald.12-08-08 DecisionCrown Employees
Grievance Settlement
Board
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Toronto, Ontario M5G 1Z8
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Commission de
règlement des griefs
des employés de la
Couronne
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Toronto (Ontario) M5G 1Z8
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Téléc. : (416) 326-1396
GSB#2006-1469
UNION#2006-0722-0002
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(McDonald) Union
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The Crown in Right of Ontario
(Ministry of Environment) Employer
BEFORE Loretta Mikus Vice-Chair
FOR THE UNION Ed Holmes
Ryder Wright Blair & Holmes LLP
Barristers and Solicitors
FOR THE EMPLOYER Jennifer Richards
Ministry of Government Services
Labour Practice Group
Counsel
HEARING April 2, 2007, December 8 & 9, 2009,
April 26 & 27, November 9 & 10, 2010
March 29, October 26, 2011.
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Decision
[1] In August of 2005 the Employer posted a vacancy for a Regional Program Officer in the
classification of an Environmental Officer (EO) 4. The grievor, Cheryl MacDonald, applied for
the job but was denied an interview. She has asked that the Board issue a declaration that the
competition was flawed and an order that she be placed in the position with full retroactivity.
[2] The Employer took the position that it had conducted the selection process in accordance
with the collective agreement. This was a senior EO position and it was entitled to select the
most qualified person. The grievor was an Administration Assistant at the time and the Employer
determined that she lacked the minimal qualifications for the position. The job specifications
reflected the duties of the position and stated that the successful applicant must have extensive
computer skills and knowledge of environmental legislation and its applications. There were
eight applicants and each was comprehensively screened for the required criteria. The threshold
score was 60% and the grievor’s score was 43%. She lacked the computer skills and analytical
background to qualify for an interview.
[3] The Union took the position that the grievor was unfairly and improperly denied an
interview. It asked that she be placed in the job retroactively to the date of the posting. It
suggested that, given the length of time the incumbent has been in the position the Employer
should place him in a similar position.
[4] The Union asserted that the Employer is required to ensure the applicants are considered
for the job based on criteria that relate to the duties of the position. In this case it claims that the
Employer has elevated the requirements of the position from those set out in the job
specification. For example, the job specification requires knowledge of computer software
including GIS (Geographical Information System), Access and M-S Front Page. In the job
posting the Employer asked for an extensive background in GIS, website software, MS Access,
database and data analysis. The requirements in the posting are more demanding than the job
specification. That is one flaw in the Employer’s process.
[5] In addition, the Union submitted that the scoring of the criteria was defective. The
grievor was not given enough credit for her past experience and, had she been scored properly,
she would have passed the threshold of 60%.
[6] Ms. Nathalie Osipenko is the Supervisor of Program Services for the Northern Region.
The unit is responsible for program management and development for commercial and industrial
sewage. The key duties of her position include managing the unit’s budget, staffing and
workload. She is responsible for the public reporting of discharge. The jobs within the unit
involve policy and field work staff whose responsibility it is to make sure its policies can be and
are implemented. In the past she had been an EO 2 for industrial regulations in waste water, an
EO 4 Abatement Officer in the district and an EO 5 Program Coordinator. She had also done
special assignments over the years. She developed the job information package which formed the
criteria, advertised the position, screened and interviewed the candidates.
[7] Initially the job was situated in the Assistant Director’s office but is now part of Program
Services. There are 22 District and Area Offices. This particular job posting was for a job in the
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District Office and was designed to refer to the duties of that job, which are different from those
of the generic job specification.
The job posting stated as follows:
The Assistant Director's Office, Northern Region, requires an individual to work in a diversified
office responsible for policy/program development and evaluation.
Duties Will Include. You will; assist with the development and delivery of divisional policies and
programs, including maintaining and developing divisional/regional intranet/internet sites,
computer programs and databases for tracking and reporting on activities and producing related
maps/reports; liaise between and provide technical guidance and training updates to District
Offices, regulated companies and head office groups; monitor program activities;
compile/analyze information and prepare reports; assist in program/policy co-ordination,
development and evaluation.
Qualifications; Extensive background in various computer applications including GIS
applications, website software, MS Access, database, data analysis and presentation; good
working knowledge of environment legislation and policies, interpersonal, communication,
training and presentation skills; analysis and problem solving skills; demonstrated ability to meet
deadlines with minimum supervision; valid Ontario driver's license.
The job specifications for an EO4 position are as follows:
Purpose of Position
To provide support and manage information for the development, implementation,
coordination and evaluation of Ministry legislation, policy, and programs. To assist with
the development and delivery of training programs to regional/district staff. To provide
technical guidance/advice to both internal and external clients within an assigned region
and/or across the division, to implement site remediation Projects in the region.
Duties/Responsibilities
Job requires: Organizing and consolidating regional/divisional input to the development
of legislation, policies and programs and modifications by: obtaining and assessing input;
initiating discussion; formulating regional positions. Representing and defending
Ministry/regional position on divisional working group/committees and at public
meetings, participating in developing strategies in assigned fields; and providing advice
and interpretation on Ministry programs, legislation and policies when providing
testimony in court.
Assisting in the development and the delivery of training plans to implement legislation,
polices, programs and modifications by; analysing requirements; participating in the
design and delivery of training programs and schedules; and ensuring manual/materials
are updated throughout region.
Managing information by collecting and compiling data within designated time frames
for a number of uses, e.g., compliance, checking GIS database, support and preparation
of the regional work plan.
Providing support in monitoring and evaluating of program activities e.g. reviewing for
consistent and effective delivery throughout region}, and recommending improvements
to procedures, processes, resource levels, technology availability and other activities.
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Maintaining and developing regional computerized data bases for tracking and reporting
on activities and producing related reports. Using computer applications to; prepare
technical and administrative correspondence, briefing notes, issue reports and other
materials, including statistical reports, graphs, tables, maps and charts on programs.
Assisting in project support activities such as overseeing contracting consultants and
conducting various studies and analyses as Provincial Officer and determining project
status by carrying out site visits including sampling.
Maintaining and delivering the divisional date programs including customizing company
Profiles, retrieving reports, competing corporate updates and validating and transferring
data to central database.
Knowledge
Job requires knowledge of environmental legislation( Environmental Protection Act,
Ontario Water Resources Act, Pesticides Act, Environmental Assessment Act} and
related regulations, policy and Program development {e.g. Electronic Time Accounting
System, development of Procedural documents for the usage of control instruments and
guidance material and provide to Regional District staff) and to monitor and assess
compliance with reporting requirements for industrial and municipal discharges by
checking against legislative requirements. Job requires knowledge of computer software
applications (e.g. Access, M-S Front Page GIS application software) and Ministry data
management system in order to; provide technical advice on their use to external and
internal client groups; to develop and maintain regional data bases and files; analyse data;
Produce reports; develop specialized maps; and to review and process data for corporate
data files. Job requires knowledge of Ministry programs and the regional delivery
approach to determine delivery issues (e.g. inconsistencies in delivery); evaluate and
analyse in order to assist in the resolution of issues (e.g. difficulties with data
management) to ensure consistency in the delivery across the Region/ Division by
developing guidelines/ procedures to ensure consistent handling by all District offices
across the Province. Job requires knowledge of training techniques and program
development methods, Procedures and techniques to assist in the development and
preparation of training material and manuals for the development of new programs,
policies and procedures (e.g. time management training/guidance manuals). Job requires
knowledge of project management and contaminated site assessment including sampling
and cleanup techniques in order to review and comment on remedial plans and analysing
the consultants’ findings and propose solutions to comment on the appropriateness of the
recommendations in reports.
Skills
Job requires analytical and problem solving skills to; gather and analyse information,
develop and graphics charts and status reports, document, issues and identify and
evaluate options for resolution (e.g. compliance assessment with municipal and industrial
wastewater regulations requirements). Job requires analytical and assessment skills, to
evaluate new program and policy proposals to determine their feasibility and viability,
estimate and forecast impacts on clients, and stall training needs. Job requires analytical
skills to assess technical and administrative issues and develop approaches to guide
management (e.g. providing advice to direct dischargers regarding technical and
administrative difficulties encountered while using Ministry supplied data management
programs). Job requires evaluative and problem solving skills to assist in the
development and implementation of program delivery review, (e.g. developing and
modifying as necessary the program evaluation procedures); recommending performance
criteria to meet the targets identified in the work plan and the Ministry's business plan
and requires analytical skills to develop strategies for improvements (e.g. changes to
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procedures, processes, and technology). Job requires oral communication skills to; make
presentations to the public or external clientele at public meetings; technical and non-
technical staff; provide testimony on Ministry legislative, policies and positions at legal
proceedings due to the office role as Regional/Divisional/Ministry representative on
special Projects; discuss technical, administrative and policy issues related to
environmental protection and management, Job requires oral communication skills to
provide training and advice to clients. Job requires interpersonal skills to; work in a team
environment, persuade and develop support of industrial clients and Ministry staff within
the region, for new initiatives and Ministry’s position on issues and provide advice and
support for implementation of new programs.
Freedom of Action
Job requires working within environmental legislation/ regulations and related Ministry
programs, policies and procedures; and working within compliance guidelines, program
evaluation procedures, delivery strategies and pollution incident response procedures. Job
requires making decisions by; analysing and evaluating programs and problems and
determining remedial actions required. (e.g. assess data management problems) and
recommend solution to internal and external clients; reviewing technical information and
ensuring accuracy of the data collected and identifying/drafting procedural changes. Job
requires assisting in preparing regional work plan for review, amendment and approval
by the Regional Program Coordinator/ Supervisor work is accepted as technically
accurate and is reviewed for adherence to Ministry policy, guidelines,
supervisor/manager issues such environmental/ pollution/ procedural difficulties which
are complicated by issues where there is public or staff concern and expectations. (e.g.
data Program distributed to clients is uncooperative in allowing industry to submit
compliance data as per regulation requirements, information from contractors at
contaminated site clean-up) from clients that solutions or information be provided in a
pre-established deadline.
[8] The EO 4 classification is considered a frontline position. They implement policy and
ensure compliance. For example, an Abatement Officer is an EO4 for abatement policy and
legislation in the District. They conduct inspections, respond to calls about spills and obtain
approvals. There are between 4 to 10 Abatement Officers in this District and approximately 220
in the Province.
[9] The job specification set out above is generic in that it lists the job duties of a regional
EO4.
[10] There is one Regional Program Officer in each of the five Regions. They act more as a
manager of the program than an Abatement Officer. Each RPO supports four positions. They
have had experience as a lead in an EO4 position: they manage the information and need an
understanding of the environment and computers to do that. They work with specialists and act
as a computer help desk for clients. The support they provide varies from Region to Region.
[11] Each EO4 has environmental training and job experience to represent the Region and the
interests of staff. They develop procedures on how to perform their duties. They know the
strengths and weaknesses of the programs. They require computer skills, environmental
knowledge, problem solving and analytical skills, good communication skills and the ability to
manage their time.
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[12] Ms. Osipenko drafted the qualifications of the position based on the job specifications.
She developed the selection criteria on the same basis. She assigned 30% for computer skills.
She said the position involved the maintenance and development of the intranet and the internet
and the production of related reports and required extensive knowledge of computers. The
requirements of the job for knowledge of environmental controls, legislation, policies and
programs policies was worth 20%, excellent problem-solving skills another 20%, oral and
written communication skills 10%, training and presentation skills 10% and an ability to
communicate and manage time 10%.
[13] She testified that those duties related to the job specifications in several ways. An EO4
manages information by collecting and compiling data, checking GIS data bases, maintaining
and developing regional computerized data bases for tracking and reporting on activities and
producing related reports. The position uses computer applications to prepare technical and
administrative correspondence and briefing notes, issue reports, statistical reports, tables, maps
and charts. At the time they were using a DOS based program but were in the process of
developing a data base specific for their program. There was no template and the RPO had to
use Front Page and be familiar with WIZ computer based programs. They were anticipating a
much expanded role for the RPO that would involve more than inputting data but rather using the
data to create maps from the data. Because of the volume of the work and the future
expectations of mapping from that data, the RPO would be the lead GIS officer in the region and
provide support for other EO4’s. Ms. Osipenko acknowledged that they had only used the GIS
in that manner a few times since the job was posted.
[14] Under Knowledge in the job specifications Ms. Osipenko pointed to the requirement for
knowledge of computer software applications such as GIS, Access, MS Front Page, and Ministry
data management systems in order to provide technical advice on their use to external and
internal client groups. An EO4 is also expected to analyse and evaluate programs and problems
and determine if any remedial action is required. At the time of the posting the EO4 would
manage a large volume of waste water data on an ongoing basis using the DOS system. An EO4
would still be responsible for troubleshooting, but now it is through the intranet.
[15] Ms. Osipenko allotted 20% for environmental knowledge. The RPO would be required
to assist in program/policy coordination, delivery and evaluation. He/she would need a good
working knowledge of environmental protections and controls. The position is meant to function
as a supporting role with respect to EO5’s.
[16] The RPO would be expected to compile, analyse, monitor, and evaluate Ministry
programs and activities. The scoring of oral and written skills was based on the need for the
ability to prepare and compile reports and liase with various employees and provide guidance.
The RPO would provide advice and interpret technical reports.
[17] The final criteria related to the job specification’s reference to training duties, including
devising training programs, and the ability to meet deadlines and work independently. They
were looking for someone who could demonstrate patience and clarity when answering questions
verbally or in writing.
[18] Ms. Osipenko evaluated the seven applicants on the basis of their written resumes and
application letters. She scored the applicants as follows: 3 - meets all requirements; 2 - meets
most requirements; 2- meets some requirements and 0 - meets none of the requirements. At the
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time the recruitment of new employees was being conducted under a pilot project by the Human
Resources Department. This job posting was handled by the northern recruitment centre in
Sudbury. The scoring was done by them initially and the threshold of 60% was set by them as
well. Ms. Osipenko received the results from them but then conducted her own review which
resulted in some alteration to the scores but no real change in the final result.
[19] The grievor was awarded one point for her computer knowledge. Ms. Osipenko read her
resume to indicate some experience inputting data and searching internally for data but lacking
any experience in creating a website. Her score reflected her view of the grievor as a typical
user. Her resume did not show she had any experience with GIS or creating charts and maps.
Ms. Osipenko found the grievor’s resume to be sparse on details regarding the work she had
done in the past. The grievor was given 2 points for knowledge of the environmental issues. Her
resume showed her knowledge of and experience with environmental legislation, policies and
procedures. She had taken the Environmental Management Program but she did not clarify
whether she had completed it. As a Junior EO she had 6 weeks of environmental training and 3
weeks of compliance training. Ms. Osipenko also gave her credit for her experience at the
Action Spills Centre (SAC).
[20] The grievor was awarded one point for analysis and problem solving skills. Ms.
Osipenko found no practical examples of her history in these areas. There were few links
between her past experience and problem-solving. She compiled and collected data but there
was no evidence of analysis.
[21] The grievor received two points for oral and written skills. Her resume clearly set out
how she had developed her oral skills but did not contain any information or examples about her
writing skills.
[22] Regarding the fifth criteria, the grievor was given one point. Ms. Osipenko felt the
grievor’s resume suggested she had some training and experience in presentations but there were
no examples or details to assist in evaluating her ability. For the same reason she was given one
point for her ability to meet deadlines.
[23] In contrast the incumbent was given three points for his skill and knowledge of
computers. Ms. Osipenko testified that his resume contained detailed descriptions of the data
systems he had worked with, the courses he had taken, including 3 college based courses, and the
types of systems he had supervised. It stated he had created websites and transferred data to the
intranet. He said he had used Lotus and Oracle to analyse data. He had experience with
PowerPoint. His resume listed a series of programs he had used that showed his extensive
computer experience. He had included a summary of tasks he had performed related to
computers which highlighted his strong computer background.
[24] With respect to environmental knowledge, the incumbent was awarded one point. He
had less than a year of focussed experience.
[25] He received two points for his analytical and problem solving skills. He had described
methods and concepts that showed his use of these skills. He had taught these methods to others.
He stated he regularly analysed data before preparing reports by using various sources. He set
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out his experience in technical problem solving and highlighted the positions he had held,
including his job duties at Bombardier and the Ministry of Natural Resources.
[26] The incumbent received three points for his oral and written skills based on Ms.
Osipenko’s view that as a crew leader at the MNR he had demonstrated his ability to work as a
team member.
[27] Ms. Osipenko gave him two points for the various types of training he had completed and
his knowledge of the concepts.
[28] Finally, with respect to his ability to meet deadlines, Ms. Osipenko pointed to his resume
which contained specific examples of projects he had completed on time and within
expectations. He was given three points.
[29] Ms. Osipenko prepared the short list by reference to the applicants’ scores. There were
seven applicants but only four met the threshold and were scheduled to be interviewed. One
applicant was not a member of the OPS and was ineligible; another was offered and accepted
another position before the interview and another rescinded her application just before the
interview. As a result, only the incumbent was interviewed.
[30] In cross examination she was directed to the job specifications of the EO4 and agreed that
both the current and former contained a requirement for GIS knowledge. She also agreed that
the job specification for the Regional Program Officer in the Eastern Region and another for the
Kingston office did not specifically mention GIS as a requirement. She stated that the Assistant
Director had asked her to add the GIS but did not decide to reclassify the position. The plan at
the time was to move to more mapping in the future. She also agreed that, to the date of the
hearing, it had only been used 3 or 4 times. When it was suggested to her that the job posting
asked for higher qualifications than the job specification, she replied that she phrased it to project
where she wanted the job to go. Specifically, she wanted someone who could create data bases
for the region.
[31] She acknowledged that the incumbent had been on a secondment in the posted job for
more than six months at the time of the posting, which she had extended throughout the posting
process. She said that, although the grievor had been using a DOS based system, that did not
mean she knew it. There was no reference in her resume of experience with GIS. Ms. Osipenko
did not know from her application whether she had experience in managing programs, dealing
with the public and preparing reports. She agreed that the grievor was familiar with the
Occurrence Report Information System (ORIS) and Environmental Discharges Report
Information System (EDRIS). When the grievor referred to experience coordinating the
administrative system for six regions, Ms. Osipenko did not think of it as managing a flow of
information through computers. She agreed that had the grievor been interviewed, she might
have learned these details.
[32] When she was asked about the grievor’s reference in her resume to having created a
tracking system on the Q drive, Ms. Osipenko stated she had interpreted that to mean she had
created a place to save notes but not as having created a website. She disagreed with the
suggestion that the grievor’s resume indicated more than general knowledge of computers but
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allowed she would have to learn more about what she had actually done and would have done so
if she had been interviewed.
[33] Ms. Osipenko acknowledged that the grievor was a Power User, which is the designation
for one who has been trained to assist others using computers. They are up to date on changes
and train other employees on upgrades. Ms. Osipenko said that she did not place much emphasis
on the Power User experience.
[34] She was asked why the grievor had only received one point for her problem solving and
analytical skills. She agreed that the grievor’s application showed she had experience handling
complaints from clients and the public, which was a form of problem solving. As well, her
experience dealing with lawyers and consultants were examples of problem solving. She stated
those were not aspects she considered in allotting these points. The grievor’s resume did not say
how many times she had used these skills or whether she had been successful. When asked
whether the grievor’s experience at the Spills Action Centre had been considered, Ms. Osipenko
said she did not have the job specifications of the job at the time. She agreed that the grievor had
provided details of her oral communication skills so she was given 2 points. However, Ms.
Osipenko did not find the same details about her written communication skills. It appeared from
her letter that she had experience in filling out incident reports. There were no examples of her
past work.
[35] With respect to the grievor’s training and presentation skills, Ms. Osipenko concluded
from her resume that she had only had one-on-one experience and she was looking for more
formal experience. She did allow, however, that the grievor’s application did show her
involvement in developing and doing presentations. Finally, despite her experience as an
Administrative Assistant, Ms. Osipenko did not see examples of projects she had completed on
time under deadlines. She was deemed to meet some of the criteria and given one point.
SUBMISSIONS OF THE PARTIES
[36] Ms. Jennifer Richards, counsel for the Employer, began by reviewing the facts giving rise
to this grievance. It involved a competition for the position of Regional Program Officer in the
Assistant Director’s office in the northern region. It was posted on August 12, 2005 and closed
September 2, 2005. The grievor was screened out and filed this grievance on December 21,
2005. Several questions are before this Board: was the grievor unreasonably denied an interview
and was the screening process to develop a short list consistent with the collective agreement;
was the process reasonable and fair and was she scored properly; finally, whether the grievor
should have been selected for the job over the incumbent. The onus of proving the process was
flawed lies with the Union.
[37] It was submitted that the Employer is entitled to select only the most qualified candidates.
In this case it did when it chose Mr. Lemieux. After reviewing her application letter and resume,
Ms. Osipenko decided the grievor did not meet the threshold to make the short list. She came to
that conclusion after a comparison between the application documents and the job specifications,
particularly the qualifications high-lighted on the posting for this particular job.
[38] The purpose of the position is to provide support for EO5 employees. The selection
criteria were directly related to the job specifications and job posting. The posting and Ms.
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Osipenko’s evidence clearly show why there was a critical need for knowledge of environmental
issues, especially legislation, and extensive knowledge of computers. Ms. Osipenko determined
that the successful candidate would need to have a strong computer background, knowledge of
the environment and proven analytical skills. Three of the eight job duties contain a computer
focus. The successful candidate would be expected to create data bases and maps. He/she would
have to be able to extract and manipulate information. The Ministry was anticipating creating
digital maps in the future, which was another key expectation of the job.
[39] The grievor was given one point out of four for her computer skills and knowledge. Her
resume said she had set up and maintained system tracking on the common drive and that she
was proficient in computer programs. She did not list what programs and gave no examples of
her experience. Ms. Osipenko interpreted that to mean the grievor possessed the knowledge and
experience of a typical Ministry user but she wanted more. The grievor’s resume did not contain
any mention of certificates or courses she had taken to build her knowledge. In short, her
resume, it was said, contained no reference to GIS, creating data bases, using analytical concepts
or experience in problem solving. She stated she was a Power User but did not provide any
information about what that involved. It was up to her to make sure the interviewer had all the
information necessary to evaluate her ability. There was no evidence she had used Front Page.
Using Word does not necessarily mean knowing Access.
[40] The Employer asserted she was scored properly on her computer knowledge. A
comparison to Mr. Lemieux’s application shows why he achieved a score of three. He stated he
had extensive knowledge of GIS and other computer programs and uses. Two full pages of his
resume contained detailed examples of his past experience. He specifically said he developed
customized computer applications that incorporated GIS software, MapObjects and MapObjects
LT and created digital maps for clients. Between 1966 and 2005 he had taken numerous college
level courses on aspects of computer programs including GIS and developing a web site.
[41] Mr. Lemieux was given one point for his knowledge of environmental controls,
legislation, policies and programs. He had only worked with the Ministry of the Environment
since 2004, primarily in computer related positions. The position at issue required a good
working knowledge of environmental matters. The grievor received two points. Ms. Osipenko
noted that she had less than a year of direct experience. She had spent six months in a temporary
assignment as a Junior Environmental Officer (EO2) but her resume did not specify when. She
claimed she had completed the Compliance Training course but did not provide details about the
content or duration. She also included reference to the Environmental Management Program but
did not say how many courses she had taken or when. Ms. Osipenko took into consideration the
fact she had worked as an EO3 in the Spills Action Centre.
[42] It was submitted that, with respect to the analytic and problem solving criteria, Ms.
Osipenko was looking for someone who could meticulously analyse information to find
inconsistencies, note trends and troubleshoot. She wanted someone who could make program
decisions and pursue needed changes. More than one-half of the Skills section of the job
specifications refers to analytical duties. The grievor scored one and the incumbent scored 2.
The grievor had stated in her resume that she possessed analytical experience but gave no details
or examples. She also mentioned a business management certificate but no further information.
The grievor included in her application her experience of analysing data as the Director’s
Assistant but gave no details of the extent of her role. Ms. Osipenko believed it had only been
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for two weeks. Without more information it was impossible for her to evaluate the grievor’s
ability. Ms. Osipenko also noted that the grievor never used the term “problem solving” in her
application. It was asserted that the incumbent claimed to have well developed problem solving
skills and he provided details and examples that related directly to the job duties.
[43] The Employer asserted that the job posting clearly sets out the reasons why there is a
need for strong oral and written skills. The RPO would be expected to prepare reports and
represent the Ministry with work groups and the public. The grievor was given two points and
the incumbent three. The grievor described her extensive experience with the Union and referred
to her mediation and conflict resolution history. Again, the grievor did not provide enough
details or examples to evaluate her ability while the incumbent highlighted his written skills
extensively, including his community connections.
[44] Criteria number 5, training and presentation skills, were listed in many sections of the job
posting. The grievor scored one point and the incumbent scored two. The grievor’s resume did
not make any mention of developing or doing presentations. Her experience seemed to be based
on one-on-one training and she did not seem to possess any knowledge of formal presentation
principles. Her application did not provide the details Ms. Osipenko was looking for. If the
information is not in the application and resume, the assessment of the candidates is impossible.
The incumbent carried out daily and weekly training sessions, produced classroom instructions,
presented major power point presentations and taught classes to others.
[45] Regarding the final criteria, Ability to Meet Deadlines, the position required someone
who could work independently to meet deadlines and complete projects. The grievor’s resume
simply stated she could work without supervision but gave no examples of having done so. The
incumbent gave numerous examples and information about his experience in this area.
[46] The Employer submitted it had conducted the selection process fairly and in a manner
consistent with the collective agreement. Ms. Osipenko put her mind to the requirements of the
position and it is not for this Board to overrule her assessment. Every competition is unique and
it is up to the Employer to determine what is relevant in deciding who should succeed. Ms.
Osipenko took her responsibilities seriously. She meticulously reviewed the applications and
evaluated their ability on the basis of the information before her. The grievor’s application letter
and resume did not indicate she had the experience in computers that the Employer had
determined were necessary. She had experience as an Administrative Assistant and six months
as an EO2 but that was not enough to overcome her deficiencies in the computer field. It is up to
the applicant to ensure that all information is included in her resume in order to put her best foot
forward. It is the Employer’s obligation to review the applications and decide who should be
interviewed for the position.
[47] The grievor did not score enough to reach the threshold of 60%. Initially she was only
given 17% by the members of the pilot project but was re-evaluated by Ms. Osipenko and
upgraded to 43%. She was ranked 6th out of 8 candidates.
[48] With respect to the Union’s request that the Board award the position to the grievor, the
Employer stated that the evidence proffered by the Union is insufficient to allow a comparison
between her and the incumbent. The selection of the successful candidate is based on a complete
process that includes an interview and reference checks. In this case neither was done and this
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Board cannot know how the grievor would have done on either. The Board only has her resume
and application letter. If the Board accepts the Union’s argument that she should have been
interviewed, the Board should order that she be granted an interview for the next available
position. The incumbent has been in the position since 2005 and it would be unfair to remove
him from it after all this time.
[49] In support of its position the Employer relied on the following cases: Re Suave and
Ministry of Transportation (1992), GSB # 1695/91 (Gray); Re MacLennon and DeGrandis and
Ministry of Government Services (1982), GSB #506/81 (Samuels) and Smith and Ministry of
Northern Development and Mines (2007) GSB # 2002-1243 (Mikus).
[50] Mr. Holmes, counsel for the Union, took the position that the grievor applied for the
position according to the instruction and advice she had been given by the Employer. She had
attended an OPS training session in the 1990’s to learn how to prepare a resume. It was not as
detailed as the incumbent’s because she was told not to provide too much information in her
resume.
[51] The Employer stated that Ms. Osipenko was looking for the best candidate from the
applications she had received. The Union took the position that was a major flaw in the posting
process because it is the wrong test. The collective agreement directs the Employer to base her
decision on the relative equality of the applicants. If they are relatively equal, the most senior
candidate succeeds. Only if the junior candidate can show he/she is substantially better than the
more senior applicant can she claim the position.
[52] The Union asserted that this flaw was of such a substantive nature that it tainted the entire
process.
[53] The grievor’s home position was as an OAG 8 but at the time of the position she was
acting in an EO3 position in the Spills Action Centre. During her 16 years of service she had
performed the duties of several secondments. She testified as to her experience in dealing with
policies, procedures and legislation in the MOE and in the Ministry of Labour, the Ministry of
Northern Development and Mines and the Office of the Director. She clearly established her
superior qualifications regarding policies, procedures and legislation relating to the environment.
[54] It was submitted the Board had heard evidence that the grievor had been placed in an
EO4 position after this posting, which is an indication of her qualifications. That should be of
some assistance to the Board in deciding whether to award her the position. She won a
competition for an EO3 and an EO4 position based on the same resume that she relied on in the
present competition.
[55] The Union also asserted that the grievor’s completion of the Ministry’s compliance
course was undervalued. It is a required course for an Environmental Officer 4 and offers a
comprehensive review of the applicable laws and regulations. It includes instructions on briefing
notes, giving evidence.
[56] In the Union’s submission, the posting process contained substantive and procedural
flaws. The first one was the emphasis placed on GIS experience and knowledge. It was added
as a request from the Assistant Director. It was not a specific feature of the job specification or
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the job posting. The nature of the position is as an environmental officer, not an IT job. This
misplaced emphasis cuts to the heart of the position.
[57] The second flaw is found in the focus and evaluation of the screening. It was weighted
too heavily towards computer knowledge, even more than environmental knowledge. According
to the job descriptions, environmental knowledge is the first and most expansive requirement of
the position and yet the Employer gave it a 20% value and gave computer skills 30%. That is a
substantive flaw. The Employer relied on irrelevant factors. It placed significant reliance on the
knowledge of GIS at the request of the Assistant Director. However, the evidence was that
previous job postings across the province did not ask for it, the former incumbent never used it
and the incumbent in the present case only used it a few times. It was added as a priority
because of some plan for the future that never happened. That was an improper consideration.
[58] Another substantive flaw, it was said, occurred in the establishment of the weighting of
the criteria and the cut off score for the interview. Ms. Osipenko testified she did not know the
rationale for either. She was told what they would be but had no input and did not know how
they had arrived at that decision. Unless the Employer can show there was a rationale for the
scoring, it is arbitrary and unreasonable.
[59] Another flaw, it was submitted, is found in the weight given to the top two criteria,
namely computer skills and environmental knowledge. They were given a value of 50% of the
total marks, creating a wide gap between points. If the grievor had received another two points,
her standing would have changed significantly.
[60] Finally, it was submitted was the fact that one scorer gave the grievor 17% and Ms.
Osipenko gave her 43%. That disparity, in and of itself, is proof of the flaw in the process.
[61] Mr. Holmes alleged that the screening process was also flawed. The first problem was
the fact the scores were based on 6 criteria but there were no half credits. One point was worth
so much that a difference of that point resulted in a significant difference in the final scores. As
a result the grievor was underscored. The grievor testified that she was a designated Power User,
she had been trained on IDA and involved in training others. She had developed, tracked and
maintained an operating system for monitoring salary and budget data while she was on
secondment. She spoke of her EDRIS. She listed on her resume the programs she had taken and
the various data bases she had worked on. Between her letter and resume, she showed she was
more than an average user. Her resume also pointed out her experience compiling statistical
data. The grievor was found wanting because she had not developed websites but the
incumbent’s resume stated he had maintained but not developed websites either.
[62] It was submitted that the grievor was underscored for her knowledge of environmental
matters. She should have received 3 points instead of 2. Because of the scoring matrix, the loss
of that point made a difference in the final count. She had demonstrated her ability by
performing an EO3 position and her time at the Spills Action Centre. She had taken the
Environmental Management course at Lakehead University. She completed the compliance
training course which was necessary to become a Provincial Officer.
[63] With respect to the problem solving skills, Ms. Osipenko acknowledged that the grievor
would have had to analyse data in her previous positions meaning she obviously had the
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necessary skills. She also utilized those skills when she acted as Administrative Assistant to the
Assistant Director. She should have been given 2 or 3 points.
[64] Similarly, it was asserted, she should have been given 2 or 3 points for her oral and
written skills. Her letter indicated she had coordinated Ministry notes and briefings. She trained
others on how to write these documents and incident reports. Her ability and experience is clear
from her application letter and resume. As well, two of the previous positions she held required
those same skills and she was deemed to be qualified.
[65] The grievor was also underscored in the matter of her training and presentation skills.
Ms. Osipenko assumed she had not had experience training a group but only had one-on-one
experience. The grievor should have been given 2 points. She pointed out her experience in
training as a Power User, completed the Compliance Training course which contains a number of
sessions dedicated to training, including a mock court presentation.
[66] Finally, it was asserted the grievor should have received 2 or 3 points for ability to meet
deadlines instead of one. The grievor testified that as an Administrative Assistant, she often
worked to deadlines. She might not have provided details of her experience but common sense
should have told Ms. Osipenko what she had done through a review of her resume. She should
have known the expectations of her previous positions and the content of the Power User and
Compliance Training courses.
[67] In summary, the Union took the position the Board has all the information it needs to
decide whether the grievor should get the position. It can decide whether the grievor was
relatively equal to the incumbent and only if he can show he is demonstrably better than the
grievor is he entitled to the position. If he cannot, this Board should order the Employer to place
the grievor into the position retroactively to the date of the posting.
[68] In support of its position the Union relied on the following cases: Re Kuyntjes and
Larman and Ministry of Transportation and Communications (1987), GSB # 920/85 (Gandz); Re
Pino and Ministry of Education and Training (1995), GSB # 1236/94 (Kaplan); Re Balics and
Ministry of the Environment (1984), GSB # 42/84 (Verity); Re Murphy and Ministry of
Correctional Services (1989) GSB # 1151/88 (Kirkwood); Re Holder and Workplace Safety and
Insurance Board (2007), GSB#2008/05(Petryshen); Re Bent and Ministry of Transportation
(1989), GSB # 0031/88 (Knopf); Re Jensen and Ministry of Skills Development (1988), GSB #
1041/86 (Ratushny); Re Jenkinson and Dickey and Ministry of Health (1988), GSB # 2268/87
(Kates).
[69] In reply the Employer took issue with the Union’s assertion that the grievor had 16 years
of experience in environmental matters. It pointed out that most of that time she was in an OAG
position, which is administrative in nature, not operational. The incumbent had more time as an
EO in operations. The Employer also submitted that the Board should not place much weight on
the other appointments the grievor had been successful in obtaining. It does not know the
circumstances of the assignment to the Ministry of Northern Development and Mines. The SAC
position was a developmental opportunity which is not treated as a posting under the collective
agreement. With respect to the Lakehead Conservation Management Course, there were no
details about how many courses she had completed. The Compliance Training Course is taken
by all EO’s but Ms. Osipenko did not know enough about the content to consider whether it
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should affect her score. Ms. Osipenko testified that the Employer planned to utilize GIS more
extensively in the future. The fact it did not happen is irrelevant. It was also said that the job
specifications and the job posting do not have to be identical. The person posting the job is
entitled to emphasize the elements of the job he/she wants to stress.
[70] The Employer also stated that each candidate was evaluated individually, not in
comparison to each other. There was no evidence that the grievor’s Power User status was a
major initiative. What is relevant is what the grievor included in her application. There was no
reference to the creation of data bases. Q is a common drive used by an easy right click of the
mouse. The preparation of briefing notes and reports is not the same as the writing necessary for
this position. Taking a Compliance course is not the same as delivering presentations. With
respect to the final criteria, it was said there is a distinction between having a deadline and
meeting that deadline. The grievor did not say she had done that. There was no indication of
independent work in her application.
REASONS FOR DECISION
[71] The relevant provision of the collective agreement reads as follows:
6.3.1 In filling a vacancy, the Employer shall give primary consideration to
qualifications and ability to perform the required duties. Where qualifications and ability
are relatively equal, seniority shall be the deciding factor.
The Board’s function is to determine whether the requirements of the collective agreement have
been met by the Employer. The employer had the onus to ensure that it had a sufficient factual
basis upon which to make the comparisons required by the collective agreement in order to
thoroughly and properly compare the qualifications and abilities of the competing applicants. In
the Kuyntjes case (supra) at page 14 it was stated as follows:
If the eventual decision about who gets a job is to be based on relative qualifications and
abilities, it follows that all steps leading to that decision must also satisfy the requirement
that they lead to valid and relevant information about qualifications and abilities being
brought to the attention of the selection board. If the pre-screening decision screens out a
better qualified candidate, the eventual decision cannot help but be faulty. Therefore,
while there is clearly no right to an interview in the collective agreement, the nature of
the eventual decision to be made requires the pre-interview screening be done in a
comprehensive and fair manner.
It is not necessary that the pre-screening process be conducted in the same manner as the actual
selection process. However, it is necessary that the pre-screening result in valid and relevant
information about qualifications and abilities being brought to the attention of the selection
board.
[72] In the Kuyntjes case the Board was dealing with grievances that alleged that the grievor
had been improperly denied several positions. In considering the issue of the screening of the
résumés and covering letters, the Board, at page 22, stated as follows:
The Borecki decision points out that where there is a large pool of candidates for
purposes of cost and efficiency it is not necessary to interview all of the candidates. They
can be ranked in order that only more qualified candidates are interviewed. This
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principle would be equally applicable in a small pool, if the situation is as stated on page
20 of the Sauve decision:
…The award in Bent appears to say that the employer need not interview an
applicant who does have all the minimum essential qualifications and abilities if is
apparent from the applicant’s resume that overall he or she is demonstrably less
qualified and able than other applicants. Together these awards support the
proposition that the employer need not interview someone would not be “in that
running” even if everything claims in his or her job application were true.
Therefore, if there are qualified candidates, the Employer may look among the candidates
in a bona fide manner for the more qualified candidates, always being mindful that he has
the obligation to select the senior candidate if the candidates are found to be relatively
equal. Therefore as it applies to this case, Employer was entitled to rank the résumés in
terms of qualified, marginally qualified and not qualified, and to interview only those
who appeared to be qualified.
[73] I should say at the outset that my first duty is to determine whether the grievor was
entitled to be interviewed. Did she meet the threshold and pass the pre-screening test? Only if
she can prove her entitlement do I need to compare her qualifications with those of the
incumbent.
[74] Applying the principles set out above to the instant case, the Employer was entitled to
prepare a short list of applicants and, in doing so, was entitled to develop its own process to
accomplish that end. It determined what criteria were relevant to the job and assigned them a
value ranging from 30% to 10%. I find those criteria are relevant to the position duties and are
consistent with the job specifications. The Union challenges the stress placed on computer skills
for a job that was designed to deal with environmental matters. It points out that the first and
most extensive feature of the job specifications is knowledge of environmental policies,
procedures and legislation, not computers.
[75] Both the posting and the job specifications contain numerous references to duties related
to computers and set out in some detail the expectations of the position. It was not unreasonable
for Ms. Osipenko to give those skills a high priority in her scoring matrix. It is clear that the
main focus of the position is the administration, application, development of, and compliance
with environmental policies, procedures and programs. Those goals are accomplished in large
measure by the use of computers, thus requiring computer skills. While I might have ranked
them differently, the Employer’s decision to place computer skills above environmental
knowledge is not so unreasonable that I would substitute my own opinion for its opinion. It was
not unreasonable for the Employer to apply those selected criteria to her pre-screening process.
[76] It was argued that there had been no rationale given for the decision to interview those
who scored at least 60% and to limit the number of interviews to four. While Ms. Osipenko
acknowledged she did not know the rationale for the 60% threshold, I do not find it to be an
unreasonable rating in the circumstances and would not substitute a lower threshold. The
decision to interview four applicants was based on the Employer’s assessment of the most
efficient and expeditious course to take to complete the selection process. I do not find that was
an unreasonable conclusion in the circumstances.
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[77] That brings me to the second question, that is, was the grievor scored properly during the
pre-screening process? She received one point for her computer knowledge which means she
met some of the expectations: the incumbent received 3 points, which means he met all of the
expectations. In my view the grievor’s score did not adequately take into account her past
experience. In the first instance Ms. Osipenko decided she was operating at the level of a normal
user based on what she read in her application documents. As I read the grievor’s application
data, she was familiar with most of the programs listed on the job specification and job posting.
She did not get any credit for her status as a Power User, a position that was designed to teach
computer skills to other staff and ensure upgrades were implemented properly. Ms. Osipenko
did not know what the role of a Power User involved and did not make any inquiries. While it is
up to the applicant to put her best foot forward, when references are made to programs or
activities that are specific to that Ministry, an applicant is entitled to assume there is an
awareness of the features of the program without necessarily setting out all of the particulars. In
this case the mention of her status as a Power User should have been considered and credited.
[78] Ms. Osipenko wanted someone who had extensive knowledge of GIS and placed much
emphasis on that during her assessment of the candidates. The job specifications state that the
position required checking GIS databases, and knowledge of GIS software. It is included in the
list of software a RPO would need but it is not emphasized to the extent that Ms. Osipenko
sought. Another area of duty that was given great weight was the ability to create databases.
The incumbent claimed to have had extensive experience. The grievor stated in her application
she had set up and maintained a tracking system and in her evidence stated that creating a
database was a simple process she would have no trouble completing. From the information
contained in the grievor’s application the grievor should have been scored at least one more
point.
[79] The Union has alleged that the manner of scoring was flawed because there was no
allowance for partial points. Each point was calculated by multiplying the rating and the weight
of the criteria and adding all the scores together to form a score of 100. As a result, the Union
alleged, a difference of one point is too disparate to be reliable. That there is no doubt that there
is a significant disparity between the values of each point. However, the four categories are valid
measures of the duties and the weight given to each one was a logical and acceptable choice and
I would not change it. As a result I cannot give the grievor more than one point in this section
because, in my view, while she did meet most of the requirements of the position, she did not
meet all the expectations of them.
[80] I would not interfere with the scores for the second criteria, environmental knowledge.
Initially, the grievor received a zero but was reassessed by Ms. Osipenko and given two points.
She did possess many of the requirements but had never actually done the duties of an EO4 fully.
She had been a Junior EO and an EO3 but it cannot be said she met all of the expectations of the
position. Her previous positions gave her an awareness of and familiarity with the duties of an
EO4, but there are significant aspects of the job that she has never performed.
[81] The grievor initially received no credit for her analysis and problem-solving skills: the
incumbent received 2. After a review, Ms. Osipenko raised her score to one point. Ms.
Osipenko did not see any evidence of concrete examples of those skills. Her resume suggested
she had assisted in collecting and maintaining information but nothing detailing analytical
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treatment of that information. Ms. Osipenko inferred some experience and familiarity with these
concepts and gave her a “meets some” of the criteria. I would not interfere with this score.
[82] The grievor was found to have met most of the requirements of the oral, written and
interpersonal skills criteria and one point for each of the training and presentation skills and
ability to meet deadlines. The incumbent received 3, 2 and 3 respectively for those criteria. In
this aspect of the award, I am not comparing the grievor with the incumbent. I am simply
evaluating the scores she received based on the information before Ms. Osipenko. The scores
that the incumbent was given would be relevant to my comparison of the grievor and the
incumbent if she had been interviewed. Having said that, I find the grievor’s score for criteria 4
was not unreasonable. With respect to her presentation skills, Ms. Osipenko testified that she
had the sensation that the grievor had had some training but was not clear about what that
consisted of. In her application she stated she had trained other officers in completing numerous
reports referrals. She trained others in her duties as Power User and took several courses related
to training. Her application indicates to me that she had done training with staff not in a
structured environment but rather in one-on-one settings. The score she received was based on
the information in those documents and was within an acceptable range. However, in my view
the grievor should have received more credit for her ability to meet deadlines and work without
supervision. A review of her former positions shows she had worked as Divisional
Administrative Coordinator for the Assistant Deputy Minister on various time sensitive matters.
She worked in the Spills Action Centre, which requires independent and rapid responses to
unexpected situations. Ms. Osipenko should have known the nature of those positions would
require those skills and given her credit accordingly. Her score should have been 2; meets most
of the requirements.
[83] Those two changes would not have revised the grievor’s score enough to meet the 60%
threshold. She is closer than she was but in order for me to allow the grievance I would have to
find that there were one or more flaws in the screening process, which I have specifically
rejected. I have found she was scored incorrectly in the areas noted above within that process.
Her score is still below the threshold and the grievance is denied.
Dated at Toronto this 8th day of August 2012.
Loretta Mikus, Vice-Chair