Loading...
HomeMy WebLinkAbout1988-0864.Safir.90-01-09 ONTARIO EMPLOY~-S DE LA COURONNE CR 0 WN EMPL 0 YEES O E L 'ON TA RIO GRIEVANCE c,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, TORONTO, ONTARIO. M5G IZ8- SUITE2100 TELEPHONE/T~L~:PHONE 180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) M5G 1Z8 - EIUREAU 2100 (416) 598-0685 864/88 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE, GRIEVANCE SETTLEMENT BOARD Between: OPS~.U (Mohamed Safir) Grievor - and - The Crown in Right of Ontario (Ministry of the 'Environment) Employer Before: E.K. Slone Vice-Chairperson I. Freedman Member E. Orsini Member For the Grievor: M. Nazir Representative 2258 Danforth Avenue For the Employer: M. Farson Counsel Fraser & Beatty Barristers & Solicitors Hearing~: May 15, 16, 17, 1989 November 20, 21, 22, 23, 1989 AWARD This is a job competition grievance, but there were certain unusual aspects to the proceedings which we should note. The incumbent, Cheryl Gorman, was notified of the hearing yet chose not to attend. The Union did not represent the Grievor at the hearing, but was present as an observer only. The Grievor chose to have his case presented by Mr. Mohamed Nazir, who we understand to be the Grievor's brother and who, while not an Ontario-admitted lawyer, was apparently legally trained in his native Guyana. The hearing lasted the better part of seven days, -and we admitted some 42 documents into evidence. THE GRIEVOR'S THEORY At the outset of the hearing we were presented with a document that purports to provide particulars of the Grievor's case. Ultimately, that document was marked as Exhibit 31. While we will refer to the allegations therein later in examining the evidence, suffice it to say for the moment that the Grievor's theory of the case is simply this: He alleges that the Director of his branch, Mr. Fausto Saponara, had a personal vendetta against him. Actuated by this malice, it is alleged, Saponara constituted a selection panel with clear instructions to them to make sure that the Grievor did not win the competition. Moreover, it is claimed that Saponara instructed the panel to award the job to his hand-picked candidate, Ms. Gorman. The competition~ the Grievor says, was a sham, and Mr. Safir was passed over for a job that he is fully qualified to'do, and which the incumbent is not qualified to do. We mentioned at the outset that the hearing lasted almost seven days, and that many documents were introduced into evidence. The reason for making this observation is to underscore the fact that the Grievor was given as much time as he needed to put forward his case. He and his representative Mr. Nazir were granted many indulgences and much leeway in the Board's rulings on the many objections raised by counsel for the Employer, pertaining to points of procedure and evidence. Yet, after all of that, we are compelled to conclude that there is not a single shred of reliable evidence to support the Grievor's theory of the case. We listened to an endless stream of accusations, conjecture, supposition and innuendo emanating from the Grievor and his representative. We were invited to draw inferences, and even to exercise clairvoyance if we were capable of so doing. Patiently we waited for some hard evidence that would support some of what the Grievor was saying, yet it never 4 came, and thus we must reject this grievance and the underlying allegations in the strongest terms possible. THE FACTS For the sake both of the Grievor and of those whose reputations have been impugned, we will delve extensively into the evidence to root out the-facts as we are compelled to find them. To give structure to our findings, we will first set out the text of Exhibit 31, the statement Of particulars. Then, we will go through it paragraph by paragraph and, with reference to the evidence, try to arrive at the true state of affairs insofar as the Grievor's situation is concerned. EXHIBIT 31 "The following are the main points that will be brought to the Grievance Settlement Board'for consideration: (a) Statement of Grievance That the Grievor has been unjustly denied promotion to the position of financial analyst (F.O.3). (b) Settlement desired That the Grievor be promoted to the position effective from the date it was filled by the applicant selected. That in support of the statement in paragraph (a) above Evidence will be led to prove, inter alia, the following important acts of F~usto Saponara: 1. That from the time that the Grievor was able to win the competition for the position of Budget Officer, Mr. Saponara accelerated, intensified, and concentrated his hostile attacks on the Grievor with a view to depriving him of that position that was being reserved for a female of Mr. Saponara's choice. 2. That after the Grievor was not being appointed to the post of Budget Officer although a long time had elapsed since he had won the competition, even after Mr. Saponara had improperly introduced a test subsequently with the sole object of preventing the Grievor from winning the competition, there was no altern'ative left to the Grievor. The only choice was for the Grievor to write the personnel officer, Ms. Stephanie McDowall, and a carbon copy sent to the.OPSEU. The Grievor was finally appointed by another personnel officer named Joe Glynn. These happenings further infuriated Mr. Saponara, who assumed the position of an inveterate enemy towards the humble Grievor. 3. That in the Performance Management form concerning the Grievor, Mr. Saponara falsely and improperly inserted adverse comments 24 days after that form was already signed by the Grievor. This was wrongly done so as to discredit the Grievor, although he had subsequently undertaken to regularize that obnoxious irregularity. 4. That although Ms. Barbara Coyne was imposed upon by Mr. Saponara to act in an unjust manner towards the Grievor, yet she sent a letter dated the 24th March, 1988, to Ms. Stella Moore that the Budget Officer's duties should be reclassified since the Budget Officer was doing much more. work. This would have meant promotion for the Grievor but Mr. Saponara prevented this. 5. Mr. Saponara was president of the Financial Officers Council for the year 1988, and he brought Ms. Cheryl Mary Gorman and gave her. a position as secretary on a contract dated the ist April, 1988. She worked exclusively with Mr. Saponara and they were very closely attached, and since he wanted to help her, he, in May 1988, declared the position of Budget Officer redundant so as to create a position for Cheryl Mary Gorman to fill. 6. That the post of Financial Officer $ was not properly advertised by Mr. Saponara, but he put an advertisement in the Ministry of Environment in such a way that not all persons could apply. This was done in such a way that Ms. Cheryl Mary Gorman could apply without any difficulty. 7. Ms. Barbara Coyne, Stella Moore, and Mr. Bernie Consul interviewed the candidates. These persons were not qualified to interview the candidates properly or efficiently. · Barbara Coyne does not have knowledge of accounting and she never employed any person with an accounting knowledge. Stella Moore is a personnel officer without an accounting background. Bernie Consul has a little accounting knowledge. Their lack of a proper 6 knowledge of accounting will be a serious drawback, therefore they could not correctly or properly evaluate the qualifications of the candidates. 8. That Mr. Saponara caused the competition to be flawed in several respects simply because of his consuming desire that the competition must be won by no other than Ms. Cheryl Mary Gorman. The competition also abounds in irregularities. Mr. Bernie Consul who interviewed the candidates including the Grievor was prevailed upon by Mr. Saponara not to continue as a candidate and while he was dissuading Mr. Bernie Consul from taking part as a candidate in the competition he must have mentioned to Mr. Bernie Consul' the reason for that, and he at the same time appointed Mr. Bernie Consul as one of the members of the panel to interview the candidates. 9. Ms. Barbara Coyne and Mr. Bernie Consul reported directly to Mr. Saponara as managers and therefore they must have known the predilection of Mr. Saponara for Ms. Cheryl Mary Gorman, who worked closely with the director, Mr. Saponara. The appointment was improper and contrary to public policy and the policy of employment practices. 10. The competition was a deviation from past practices with respect to man), aspects. 11. The blatant irregularity of getting the Grievor out of the area where the interview was being conducted was committed for the sole purpose of giving the three members of the panel the opportunity of planning to act subsequently in such a way as to ensure that the Grievor got fewer marks than he deserved and that Cheryl Mary Gorman won the competition, to satisfy Mr. Saponara. 1Z. That there had been a deliberate plan initiated and directed by Mr. Saponara as director to ensure that although the Grievor was doing a tremendous amount of work and was highly competent there must always be a statement of his duties to show that he was doing less work than what he was really doing, thereby misrepresenting the true position held by the Grievor. 13. That in an effort to be in the good graces of the persons closely associating with him, Mr. Saponara used his position of authority to subvert excellent principles advocated by the Government of Ontario by granting special favours to them to the detriment of the Grievor and others more deserving. There are other aspects of the Grievance that are relevant and need serious consideration, and they may be stated as follows: (i) That the questions were too difficult for the candidates except the Grievor, who worked in those areas covered by the questions, and therefore it was inconceivable that Cheryl Mary Gorman could have answered those questions correctly. The conclusion is that the answers to those questions could have been provided her long in advance, or that the marks assigned were too high, or that some other serious irregularity was perpetrated. (ii) That the Grievor is more experienced and qualified than Cheryl Mary Gorman for that position. (iii) That there was bad faith on the part of management (employer) and the competition was not carried out fairly. (iv) That there was definitely a conflict of interest between the Grievor and the three members of the panel appointed by Mr. Saponara. (v) That the qualifications of the Grievor and the successful competitor should have been studied before a decision taken. (vi) That the Grievor was the superior candidate and should have been selected for the appointment.' The recruitment was bad. (vii) That Mr. Andre Castel relied heavily on Mr. Saponara's judgment and actions without his first ascertaining whether those actions were justified, and as a result injustice was done to the Grievor. Mr. Andre Castel's evidence will be of great help at the hearing, and that if he will not appear as a witness for the employer, then the Grievor will issue a subpoena for his attendance at the hearing." THE EVIDENCE We will now examine each of these allegations, in light of the evidence presented at the hearing. 1. That from the time that the Grievor was able to win the competition for the position of Budget Officer, Mr. Saponara accelerated, intensified, and concentrated his hostile attacks on the Grievor with a view to depriving him of that position that was being reserved for a female of Mr. Saponara's choice. 2. That after the Grievor was not being appointed to the post of Budget Officer although a long time had elapsed since he had won the competition, even after Mr. Saponara had improperly introduced a test subsequently with the sole object of preventing the Grievor from winning the competition, there was no alternative left to the Grievor. The only choice was for the Grievor to write the personnel officer, Ms. Stephanie McDowall, and a carbon copy sent to the OPSEU. The Grievor was finally appointed by another personnel officer named Joe Glynn. These happenings further infuriated Mr. Saponara, who assumed the position of an inveterate enemy towards the humble Grievor. 3. That in the Performance Management form concerning the Grievor, Mr. Saponara falsely and improperly inserted adverse comments 24 days after that form was already signed by the Grievor. This was wrongly done so as to discredit the Grievor, although he had subsequently undertaken to regularize that obnoxious irregularity. The thrust of this complaint dates back to 1986. At the time, the Grievor was a Clerk 4 in the Management Reporting Branch of the Ministry. A new position known as "Budget Officer" was created and advertised. The Grievor, who had been bucking for a promotion and to his credit had been taking outside accountancy courses toward an eventual CGA designation, applied for the job. The selection panel included Fausto Saponara, who at the time was the Director of the Financial Services Branch. The Grievor was among the top performers in that competition, and was among the several candidates asked to take a computer proficiency test. The Grievor evidently felt that he should have been awarded the job strictly on the results of the interview, since it was his belief that he placed first. There was no objective basis for his belief that he was entitled to the job. Nor was there anything sinister in the use of a computer test, since the job required someone with considerable computer skills. The Grievor's sense of victimization was further heightened when the computer apparently malfunctioned during his test. He would have us believe that there was deliberate sabotage involved. There was no evidence to support that assertion. In any event, the Grievor was helped through the test and despite some reservations that his computer skills were not up to par, and in recognition of his seniority, he was given the job. There was no evidence that Saponara was "infuriated" by anything that went on concerning this competition. There was some evidence to the effect that there was an Ongoing "feud" between the Grievor and Saponara, but it is far from clear whether the bad blood predates or postdates the competition. We are more inclined to the view that the feud started sometime after the Grievor complained about not being awarded the job, or even after the Grievor got the job but was still being heard to complain about how he got it. The notion that Saponara became the Grievor's enemy is not supported by the evidence. The Grievor's complaints, in the period immediately after the Budget Officer competition, boil I0 down to an assertion that Saponara was harassing him with extra work and undue criticism. The only substance to the former is that Saponara occasionally bypassed normal channels and assigned minor projects to employees two or three links down in the chain of command. However, the Grievor was not the exclusive recipient of such assignments, and there is no basis to conclude that this constituted deliberate harassment. As for the alleged unwarranted criticism, this involves a Performance Review or Appraisal of the Grievor conducted in March 1987, covering the Grievor's first 11 months on the job as Budget Officer. The sequence of events apparently was this: all sections of the Appraisal, save that where the Director's comments are called for, were completed by the Grievor's then- supervisor Mr. Christiansen. The review was fairly positive, although it made some comment on the Grievor's need for more ongoing supervision than might have been expected. The Grievor's general attitude toward his work was complimented. On March 17, 1987, the Grievor and his supervisor reviewed the report and both signed it. It then went to the Director, Saponara, for his input. In the appropriate section Saponara inserted some comments to the effect that while the Grievor had made progress in mastering the routine functions of the job, he had some deficiencies in the areas of "research and analytical responsibilities". (There is irony in this comment, which will become apparent when we consider the requirements of the job which is the subject of this grievance.) Saponara signed his section of the appraisal form on April 10, 1987. The Grievor was infuriated when he received a copy of the now-completed form.. He felt that the comments were unjustified, and he particularly took exception to Saponara inserting comments without first discussing them with him, He regarded SaponAra's actions as surreptitious. He wrote a memorandum to Saponara demanding that the comments be withdrawn, or alternatively that his memorandum be appended to the appraisal form. There was no evidence that Saponara ever agreed to withdraw his comments, as was argued before us by the Grievor. As far as we know the appraisal was not grieved. Nor, apparently, were the comments of Saponara ever taken by the Grievor - a proud man to say the least - in the constructive light 'that they were certainly capable of being taken. 4. That although Ms. Barbara Coyne was imposed upon by Mr. Saponara to act in an unjust manner towards the Grievor, yet she sent a letter dated the 24th March, 1988, to Ms. Stella Moore that the BudEet Officer's duties should be reclassified since the Budget Officer was doing much more work. This would have meant promotion for the Grievor but Mr. Saponara prevented this. By early 1988, Saponara was in the post of Director of the Financial Capital Management Branch. Barbara Coyne was the recently-appointed Manager of the Management Reporting and Transfer Payments Section of the branch. She was the Grievor's immediate supervisor. In early 1988, the Grievor had complained that his job specification was outdated, and Coyne undertook to revise same in consultation with the Grievor. A revised specification (not all that different from the existing one) was created and forwarded to the personnel branch for classification. The Grievor has misinterpreted that process. He believed and would have us believe that the new specification would be classified at a higher level than O.A.G. 10, which is his current classification. There is no basis for that belief. We accept that it is routine that every revised specification must be reclassified. Building on that erroneous assumption, the Grievor jumps to the conclusion that Coyne was helping him get what amounted to a promotion. That is not necessarily so. Coyne was doing something much more neutral than that. Then, when a proposed reorganization intervened which threatened to eliminate the Budget Officer position altogether, the Grievor has inferred that Saponara was the author of that reorganization (which he was not), and that Coyne who was only recently trying to help the Grievor had suddenly been turned against him. In fact, Coyne herself was the proponent of the reorganization and was not being manipulated by Saponara and his alleged malice toward the Grievor. 5. Mr. Saponara was president of the Financial Officers Council for the year 1988, and he brought Ms. Cheryl Mary Gorman and gave her a position as secretary on a contract dated the 1st April, 1988. She worked 13 exclusively with Mr. Saponara and they were very closely attached, and since he wanted to help her, he, in May 1988, declared the position of Budget Officer redundant so as to create a position for Cheryl Mary Gorman to fill. The facts are that Saponara was, indeed, the president of the Financial Officers Council for 1988. When he assumed that position, he became responsible for supervising the activities of the Research Analyst hired to assist the Council. The incumbent already in that position was Cheryl Gorman, who had been hired in September 1987 on a one-year contract. Saponara did not hire her, although he did sign a renewal contract with her covering the period from April 1, 1988 to September 30,' 1988. The need for a renewal contract apparently related to the financial arrangements between the various participating ministries contributing to the salary of the research analyst. The assertion that Gorman was a "secretary" is blatantly false. Her duties, as disclosed on her resume and as corroborated by Saponara, were varied and included responsibilities in the areas of analysis, reporting, planning, and acting in various advisory capacities. The Grievor'm attempt to brand her a "secretary" is nothing more than a mean attempt to denigrate her experience and capabilities, consistent with the Grievor's generally inflated view of his own abilities and his total unwillingness to recognize the abilities and achievements of others with whom he regards himself in competition or whom he regards as adversaries. 14 The Grievor's denigration of Gorman's experience is central to his theory that she could not possibly have scored well on the competition, and that she lacked the basic qualifications for the job. Not only is this theory utterly unsupported by evidence; but moreover it betrays the Grievor's stubborn and a~most unbelievable ignorance, of the core functions of the financial analyst job for which he was competing. The assertion that Saponara created the job for Gorman is absurd. Coyne, not Saponara, was the manager who saw the need for a third financial analyst position, and Saponara merely told her words to the effect that if she could find the salary dollars she could go ahead and hire one. It was Coyne's proposal to free up the money by declaring the Budget Officer position redundant, and spreading the duties among the financial analysts. As for who would fill the new job, there is no evidence that Saponara had Gorman-in mind for this position. Part of the Grievor's theory is based on the assumption that Gorman's contract was expiring and that she would shortly be out of a job. That is not the case, since.the evidence shows that her contract would not have expired until the fall of 1988, and we have no way of knowing if it might have been renewed. Even if Saponara brought the opportunity to Gorman's attention and invited her to apply (of which there was no evidence), we would not have found anything wron~ with that. More probably, Oorman saw the advertisement posted on the very floor in the Ministry of 15 Environment where she worked - also the Grievor's floor - and decided to apply on her own initiative. 6. That the post of Financial Officer 3 was not properly advertised by Mr. Saponara, but he put an advertisement in the Ministry of Environment in such a way that not all persons could apply. This was done in such a way that Ms. Cheryl Mary Gorman could apply without any difficulty. The fact is that the job was not advertised in the Topical, but was posted on various bulletin boards. It was 'nonetheless an open competition. The decision of where to advertise is one exclusively within the prerogative of management. The Grievor's theory, however, is that the particular method chosen was part of Saponara's master plan to give the job to Gorman and to keep the Grievor from getting it. That theory does not on its face make any sense. If the competition had been more widely advertised, the Grievor could have faced even stiffer competition. Moreover, assuming Saponara had sought to rig the competition he could just as easily have done so in a larger more open competition. For example, had there been a large number of applications Saponara could have instructed the panel to grant interviews only to a select few, including Oorman and excluding the Grievor. The pre-selection process would have been an easier one to rig than the final selection process, upon which there are greater controls and which generally take place under a greater degree of scrutiny. In any event, the decision to advertise narrowly was made and explained by Barbara Coyne. The proposed reorganization of her department had been put on hold for several months as a result of the Grievor's complaints to senior officials in the Ministry and in the Office of the Premier. An ad hoc committee had been created to investigate and ultimately report on the Grievor's complaints. By the time that committee finished its work and Coyne received the go-ahead to create the new position, she felt that the needs o£ her department were sufficiently urgent that she could not afford the additional time required to advertise in the Topical. We accept that the reasons of Coyne were legitimately within her-managerial mandate and that they had nothing whatsoever to do with getting Gorman into the job, or keeping the Grievor out of it. ?. Ms. Barbara Coyne, Stella Moore, and Mr. Bernie Consul interviewed the candidates. These persons were not qualified to interview the candidates properly or efficiently. Barbara Coyne does not have knowledge of accounting and she never employed any per'son with an accounting knowledge. Stella Moore is a personnel officer without an accounting background. Bernie' Consul has a little accounting knowledge. Their lack of a proper knowledge of accounting will be a serious drawback, therefore they could not correctly or properly evaluate the qualifications of the candidates. The selection panel .comprised, in our view, precisely the right kind of people. Barbara Coyne was the manager to whom the 17 financial analysts reported. Who better to evaluate prospective candidates? According to Coyne, she asked Consul to sit on the panel because as a manager in the accounts payable department he was one of the people with whom the analyst would be dealing on a day to day basis, and because he was well respected for his knowledge of finance and the workings of government. Clearly he was qualified. Stella Moore's credentials are in the human resources field, and it is not only proper but desirable to have someone with that background become involved in the selection process. The Grievor's contention that the panel's lack of accounting background was a drawback, does not stand'up. The job of' financial analyst, as stated in the job posting (Ex. 8), required qualifications in the following areas: "...thorough knowledge of financial management principles and processes; significant experience in preparing financial plans and forecasts; demonstrated ability to analyze and interpret financial data; experience with management control systems, ~udgeting and computerized financial information systems; working knowledge of microcomputers and related software; effective interpersonal and communication skills; several years demonstrated, progressively responsible related experience." The job is not an accounting job. While a high level of knowledge of "finance" is necessary, a professional level of "accounting" is not. The analyst's job is to look at the numbers and interpret to others what facts can be gleaned therefrom. He or she must be able to discern trends~ and most importantly must be able to communicate effectively with the managers or politicians who require that information. The Grievor's insistence that accounting knowledge is necessary, reflects not only an ignorance of the analyst's job. It also betrays a tendency at all costs to play his own strong suit, regardless of the fact that it is not trump in this particular hand. For those not familiar with bridge terminology, this simply means that the Grievor happens to have better accounting credentials than the others, and therefore would prefer to have accounting seen as the paramount qualification for the job that he covets. There is simply no substance to the complaint that the interviewers did not have the qualifications to assess the candidates. The interview questions were devised by Coyne, who wrote out for the other interviewers the essential points she was looking for in an answer. Thus~ even if Consul or Moore could not independently have known the correct answer, they were intelligent enough human beings to read the answers and judge the candidates~ responses in light of those answers. They were also qualified to assess the other~ less technical qualities and abilities which the competition was designed to illuminate. 19 8. That Mr. Saponara caused the competition to be flawed in several respects simply because of his consuming desire that the competition must be won by no other than Ms. Cheryl Mary Gorman. The competition also abounds in irregularities. Mr. Bernie Consul who interviewed the candidates including the Grievor was prevailed upon by Mr. Saponara not to continue as a candidate and while he was dissuading Mr. Bernie Consul from taking part as a candidate in the competition he must have mentioned to Mr. Bernie Consul the reason for that, and he at the same time appointed Mr. Bernie Consul as one of the members of the panel to interview the candidates. 9. Ms. Barbara Coyne and Mr. Bernie Consul reported directly to Mr. Saponara as managers and therefore they must have known the predilection of Mr. Saponara for Ms, Cheryl Mary Gorman, who worked closely with the director, Mr. Saponara. The appointment was improper and contrary to public policy and the policy of employment practices. There is no evidence that Saponara had anything to do with the selection of the panel members, or once they were selected that he influenced them in any way. As the responsible manager, Coyne undertook to create a panel. She selected the Others. Both Coyne and Consul testified, and both denied any outside influence in their ultimate selection. We found both of them to be good, straightforward witnesses, and we accept their evidence in full. The suggestion that they ran a rigged competition is a very serious allegation, involving conduct of a most unethical nature. To prove such an allegation would take some clear and cogent evidence, of which there was none. Furthermore, no plausible explanation was offered for why either of them would become involved in this kind of activity. It is not enough to suggest that they were merely obeying their superior. We refuse 20 t.o accept the Grievor's submission that this branch of this ministry was ruled by Fausto Saponara as a "little Caesar". We refuse to believe that his managers were ruled by fear, and did his bidding regardless of the ethics involved. Most people faced ~ith such a request from their superior would reject it out of hand, confident of being supported by those higher up in the Ministry than the corrupt superior. We find, on all the evidence, that there is no basis whatsoever for the allegation that Coyne~ Consul or Moore ran a competition where the result was influenced by considerations other than their honest attempt to select the best qualified candidate. The allegation concerning Consul's possible candidacy derives from the fact that Consul had originally formed an intention to compete for the job. As he explained it, he was not entirely happy in his management role and considered applying for a position where he would not have to supervise any staff. Both he and Saponara testified that Saponara asked Consul why he was applying for a demotion. Saponara offered the advice to Consul that he did not think it would be a particularly good career move, and he offered some suggestions how Consul could achieve his goals without moving in what appeared to be a backward direction. After this chat, Consul indeed reconsidered his position and withdrew his application. While it is unusual that 21 he later was asked to be part of.the selection panel, his earlier candidacy does not in itself disqualify Consul from assisting in the selection process. It did not put him in any conflict of interest. We find as a fact that Saponara's advice to Consul was offered in good faith, for the benefit of Consul, and had nothing to do with either the Grievor or Cheryl Gorman. As for the assertion that Consul "must have known" about Saponara's predilection, we observe first that there is no evidence of what his predilection was. The Grievor's conjecture does not constitute evidence. He is not a mind reader. Nor are we . It-is also significant that on the witness stand, the Grievor testified that he had a conversation with Bernie Consul prior to the interviews, wherein he says that Bernie Consul told him that Saponara asked him to withdraw so that Gorman could get the job. Had this been true, it would have been a startling admission on Consul's part. Had he indeed heard such a thinZ, the Grievor (who is not shy about complaining to the highest authorities) could have been expected to have screamed bloody murder. He would have had strong evidence of a fix before the race was even run. instead, he claims, he kept quiet to see what happened. This explanation is not credible. Nor does it make ; 22 any sense why, if he indeed had this conversation with Consul, he made no reference to it in his statement of particulars. By claiming that Consul "must have known" Saponara's predilection, he is asking us to infer something that he now claims to have direct knowledge of. This strongly suggests that the Grievor invented this alleged conversation some time after the statement of particulars was drafted. We wholly reject the Grievor's evidence in this area and find that such conversation never took place. 10. The competition was a deviation from past practices with respect to many aspects. This complaint apparently relates to the decision of C0yne to assign 78 marks to the oral interview, and 25 marks to a written test. The Grievor finds something unusual and sinister in the use of a written test. He also complained that he was not told in advance to bring in a calculator. Furthermore, it was suggested that there was something improper in the fact that there was no invigilator present during the test, but rather that each candidate was merely shown into a room by a secretary, who returned in one hour to advise that the hour was up. As for the test itself, there was nothing improper about the use of a written test. The job involves reporting to senior management, and it was quite natural for Coyne to want to see how 23 the candidates expressed themselves in a written format. Whether this deviates from past competitions or not is irrelevant. Management is not forever locked into a past mode of procedure, should it wish to try something different - so long as the requirements of the Collective Agreement are met. As for the lack of a calculator, the Grievor complained that there was not enough time in the hour allotted to do the mathematics required by the test, unless one had a calculator. The test included an annual master budget alongside the 8-month year-to-date figures, and asked the candidates to identify possible "pressure areas" where a department or program was overspending or underspending. It then asked the candidates to write a report to their manager, making suggestions as to how to alleviate the problem. The process of identifying "pressure areas" requires one to identify whether the eight month figure is obviously more or less than two-thirds of the twelve-month figure. ,As counsel for the employer illustrated in cross- examination, this is a very simple exercise that the Grievor should have been able to do at a glance. The Grievor did not concede that he could do it without a calculator, and protested also that precise calculations - not rough ones - were required. If he seriously believed that, he must have completely misunderstood what the exercise was demanding of him. There was no request for precise figures, only the identification of "pressure areas". The essence of the test was to prepare a lucid 24 report. This fundamental misconception on the p~rt of the Grievor was consistent with his failure up to the bitter end, to concede that a financial analyst does anything different than he already does as Budget Officer. As for the lack of invigilation, there is no suggestion that any candidate was subjected to different conditions than the others. There is only the conjecture that one of the other candidates may have cheated. Absent some evidence that anything irregular occurred, we would not find anything wrong with the Employer relying on an honour system. 11. The blatant irregularity of getting the Grievor out of the area where the interview was being conducted was committed for the sole purpose of giving the three members of the panel the opportunity of planning to act subsequently in such a way as to ensure that the Grievor got fewer marks than he deserved and that Cheryl Mary Gorman won the competition, to satisfy Mr, Saponara, The Grievor contends that part-way through his interview, one of the interviewers, Stella Moore, asked him to leave the room for a few minutes. It is contended that during this hiatus the three interviewers agreed to begin giving the Grievor lower marks than they had been giving, in order to ensure that he did not win the competition. This theory presupposes that the Grievor had been doing well, and that Stella Moore began to worry that he was doing too well. To support that contention, we were 25. given a graph purporting to show the marks given to the Orievor by each of the interviewers before the alleged recess, and those given after the alleged recess. On average, the marks before the recess were 53.3%, while after the recess they were 46%. Looked at individually, Consul's marking, dropped from 70% to 54%; Moore's dropped from 48% to 42%; and Coyne's remained steady at 42%. One does not have to be a statistician to see that these results are not statistically significant, They prove nothing. The interview was composed of five sections, each testing a different area. There are many reasons why the Grievor might have done a little better on the earlier questions. Moreover, why would anyone have thought it necessary to call a recess to cook up the conspiracy, which according to the Grievor was arranged long in advance? Why would it have been necessary to stop the proceedings, when the Grievor was not doing very well on two of the score sheets in any event? Why not wait until the end to cook the scores, if that was what they were trying to do? Why arouse suspicion? The fact is that, according to Coyne and Consul, whose evidence we accept, this "recess" never happened. It is another fabrication by the Grievor, blatantly and clumsily invented for the purpose of giving credence to his theory of a conspiracy against him. 12. That there had been a deliberate plan initiated and directed by Hr, Saponara as director to ensure that although the Grievor was doing a tremendous amount of work and was highly competent there must always be a statement of his duties to show that he was doing less work than what he was really doing, thereby : misrepresenting the true position held by the Grievor. This is something of a general complaint, seemingly unrelated to the competition. The Grievor complains that he was being harassed, and that Saponara denigrated his work. This is not proven, and moreover is essentially irrelevant. As for the Grievor's assessment of his own work and abilities, we were subjected to many such self-aggrandizing testimonials by the Grievor. Not only does he have a high opinion of his ability and qualifications generally, but he believes that he did very well on the interview and written test. As we were taken through his interview answers he would have had us believe against all the contrary evidence that his answers were the correct ones and that they merited near-perfect scores. When it came to Gorman's interview scores, however, he was not so charitable. The fact that she scored 23 out of 25 on one section of the interview'is said to be evidence of bias and conspiracy, because the Grievor does not believe that anyone deserves such high marks. 13. That in an effort to be in the good graces of the persons closely associating with him, Mr. Saponara used his position of authority to subvert excellent 27 principles advocated by the Government of Ontario by granting special favours to them to the detriment of the Grievor and others more deserving. This allegation presupposes that Coyne, Consul and Moore did Saponara's dirty work, simply to be in his good graces. Since there is no evidence of a s~heme by Saponara, it is irrelevant whether anyone attempted to be in his good graces or not. It also supposes that favouritism played a part in the selection, of which there is no evidence. (i) That the questions were too difficult for the candidates except the Grievor, who worked in those areas covered by the questions, and therefore it was inconceivable that Cheryl Mary Gorman could have answered those questions correctly. The conclusion is that the answers to those questions could have been provided her long in advance, or that the marks assigned were too high, or that some other serious irregularity was perpetrated. This allegation presupposes that Gorman did not have the necessary background and training to have performed well on the test or interview. A look at Gorman's resume confirms the opposite. She has a B.A. in political science from York University, and an M.A. in Sociology from the University of Toronto. She has held a number of jobs over approximately nine years where she was able to gain experience that would equip her to do the job of a financial analyst. Some of those jobs were in the public sector, while some were in the private sector. She 28 has had considerable responsibility for budgets, preparing financial reports, researching position papers, and analyzing financial information. Her strengths could be said to be more in the areas of analysis and reporting, while those of the Grievor are in the areas of computer processing and familiarity with this particular ministry's financial system. But there is simply no question that, at least on paper, Gorman had a fairly diverse and not unimpressive set of credentials. For the Grievor to assert that there was no way Gorman could have answered the questions without cheating, is a serious accusation that impugns not only her abilities but her character. We reject the assertion. There was not a shred of credible evidence to suggest that Gorman is anything but an honest and able person. (ii) That the Grievor is more experienced and qualified than Cheryl Mary Gorman for that position. While the Grievor is presumably qualified to do the job that he currently holds, we were somewhat troubled by his apparent lack of understanding as to what an analyst actually does. If his evidence were to be believed, the Grievor already performs all the functions of a financial analyst. But we accept the evidence of Barbara Coyne that the Grievor's job is not the same as the financial analyst job. True, there are some overlapping functions. But it is essentially the function of the Budget Officer to process information, and to retrieve it upon request 29 of an analyst or management. It is the job of the analyst to monitor the budget, seek retrieval of relevant information, and interpret the information retrieved for the benefit of management. The whole point of hiring.a third analyst was to strengthen-the department in the areas of analysis and reporting. To quote Saponara, they did not need another number cruncher. The Grievor is either unwilling or unable to see the distinction. (iii) That there was bad faith on the part of management (employer) and the competition was not carried out fairly. The allegation of bad faith has already been considered and rejected. Fairness, however, is a much broader concept. We cannot find any unfairness on the evidence before us. It seems that the Grievor was given a legitimate opportunity to show his interviewers that he had the right stuff for the job. His failure did not result from their bad faith or unfairness. It stemmed from the fact that the other candidates showed themselves on that day to be better qualified, and in the case of Gorman, better qualified by a substantial and demonstrable margin. It is interesting to note that as part of his application the Grievor included both Coyne and Consul as references. Presumably, he thought those two people were not only fair but positively disposed toward him. His attempt now to impugn their bona fides lacks credibility. (iv) That there was definitely a conflict of interest between the Grievor and the three members of the panel appointed by Mr. Saponara. This allegation was never explained, and we are somewhat at a loss to see where a conflict of interest could arise. (v) That the qualifications of the Grievor and the successful competitor should have been studied before a decision taken. Both the Grievor and Gorman submitted resumes. Moreover, two of the three panel members, at least, were already quite familiar with the Grievor. We are satisfied that both the Grievor's and Gorman's qualifications were properly considered by the panel. (vi) That the Grievor was the superior candidate and should have been selected for the appointment. The recruitment was bad. We find no evidentiary basis to conclude that the Grievor was the equal of Gorman, let alone superior to her. The grievor in a case such as this bears the burden of proof. That burden has manifestly not been met. (vii) That Mr. Andre Castel relied heavily on Mr. Saponara's judgment and actions without his first ascertaining whether those actions were justified, and as a result injustice was done to the Grievor. Mr. 31 Andre Castel's evidence will be of great help at the hearing, and that if he will not appear as a witness for the employer, then the Grievo~ will issue a subpoena for his attendance at the hearing. Andre Castel is the Executive Director of the Ministry of the Environment. He oversees some seven directors and is responsible for 277 staff. One of his directors was, at the relevant time, Fausto Saponara. Mr. Castel had nothing whatever to do with this competition. Nor was he aware of any of the alleged irregularities or improprieties concerning the competition, except as reported to him by the Grievor and others after the alleged fact. If the suggestion is that Castel is ultimately or vicariously responsible for the acts of Saponara, as he would be for any of his subordinates, we fail to see what flows from that. Castel was indeed subpoenaed by the Grievor, and gave evidence that was of no assistance to the Grievor whatsoever. According to Castel, Saponara was a good director about whom there had been no complaints other than by the Grievor. OTHER ALLEGATIONS For the sake of completeness, we will touch upon all of the other arguments that we have noted which were made on behalf of 32 the Grievor, and which were not contained in the statement of particulars. 1. Improper Marking of the Grievor It was alleged that some of the Grievor's answers simply deserved better marks than they were given. While we pointed out that it not our function to re-mark the candidates, we gave the Grievor considerable leeway and considered these arguments. One interview question asked the candidate to'explain an "inter-activity transfer". The Gr~evor explained an 'intra- activity transfer". He claims to have twice asked Consul whether he meant "in~er" or "intra", and says that Consul insisted that he meant "intra". Consul does not remember any such exchange. Unless they were purposely trying to trip him up, the panel could not have made such a mistake. Had Consul misstated the question, one of the others would have corrected him. We find that the Grievor merely heard wrong, and did not ask for clarification. Even if we give him the benefit of the doubt and award him three extra marks, the effect is insignificant. The Grievor scored an average of 44.8%, while Gorman scored 73%. As for other answers which the Grievor contends were marked too harshly, we are not prepared to find any unfairness. In several instances the Grievor stuck by his incomplete or 33 incorrect answer, even when faced with proof under cross- examination that his answer was not correct. The marking was fair and well within normal tolerances. 2. The Order of Interviews It was argued that the order in which the interviews were held worked to the disadvantage of the Grievor, who was interviewed first while'Gorman was interviewed last. According to Coyne, she merely gave the names of the four interviewees to a secretary with instructions to schedule the interviews. The order, then, was decided by that secretary. We have no reason to doubt the truth of that statement. Furthermore, we cannot accept that the order of interviewing had any particular impact on the outcome, particularly where as here there were a small number of candidates who were all being seen on the same day. One is sadly tempted t6 speculate that had the Grievor been interviewed last he would have been heard to co~plain that he was seen last in order to ensure that his marks were the lowest. 3. Erasures on Marking Sheets Upon close, almost forensic examination, the original 34 marking sheets showed several instances where original marks had been erased and new ones pencilled in. These instances were trivial, and in any event do not point to anything other than an interviewer changing his or her mind about a mark or two in the course of the interview. 4. Saponara's Alleged Attempt To Oust the Grievor As already adverted to, after Barbara Coyne proposed the reorganization that would have seen the Budget Officer position declared redundant, the Grievor lodged a complaint at the highest levels of the government. As the complaint filtered back down to the Ministry, it led to the appointment of an ad hoc investigating committee. It was also decided to postpone the reorganization pending that committee's findings, which were eventually published in early May 1988. It was a constant theme throughout the hearing, that Saponara attempted to go ahead with the reorganization while the committee's work was yet incomplete. If such had been true, it would have been some evidence of harassment and insubordination on Saponara's part. · However, the evidence is crystal clear that Saponara dutifully waited until after the committee's report was issued before doing anything, When the Grievor continued to kick up a 35 fuss, the reorganization plan was restructured by Coyne to permit retention of the Budget Officer's job, together with the third analyst that she had been trying to hire. This was accomplished by short-staffing the Transfer Payments section by one person. In any event, it was all done in deference to the Grievor and his steadfast protest against the proposed redundancy of his position. It should be mentioned that the redundancy would have seen the Grievor moved into another job in the Transfer Payments section, also under Coyne's direction, with no change in classification, salary or status. 5. Racial Prejudice It was alleged that all or most of the Grievor's difficulties with his managers stem from their alleged bias against members of visible minorities. There was no evidence to suggest that the Grievor was singled out for discrimination. While we are cognizant of the reality of racial prejudice, which is pervasive, and can be present in subtle forms, we could not help but be impressed with the fact that a disproportionate number of senior staff in the Grievor's branch are members of visible minorities. Bernie Consul is a visible minority. One of the three analysts, Ken Singh, is a member of a visible minority, as was at least one past analyst. Of the eight managers in the branch, six are visible minorities. Clearly, others have managed to advance in this branch of this ministry, apparently unimpeded by their ethnic .origins. We are not convinced that the Grievor's path is in any way being impeded by his racial origins. CONCLUSIONS Given the Grievor's total failure to' demonstrate, any bad faith or unfairness in the selection process, it is unnecessary for us to consider the jurisprudence placed'before us. The principles enunciated therein are well known. However, this particular case has been decided on its unique facts, and no issues of law have arisen that would require us to examine other decided cases. In the result, the grievance is dismissed. Dated at Toronto this 9th day of J~a_nuary, 1990. . ~,, i/c~-Cha i Eric K Slone, rperson I. Freedman,/Member · Orsini, Member