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1991-1257.Lumley.96-09-09
~ " ' ' * ONTARIO EMPLOYES DE LA COURONNE ~ CROWN EMPLOYEES DE L'ONTARIO GRIEVANCE C OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WES T, SUITE 2 ! 00, TOF~ONTO, ONTARIO. MSG IZ8 rEfiEIW.,IONE/TL~t_6.tPHONE: {415j 325-13E,~ ~0, RUE DUNDAS OUEST. BUREAU 2100, TORONTO (ONTARIOI,. MSG lZe FACStMtLE/T~L~COPIE : (416J 326-;396 GSB # 1257/91 OPSEU # 91B923 IN THE MATTER OP AN ARBITRATION Under TEE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD ~ETWEEN OPSEU (Lumley) Grievor - and - The Crown in Right of Ontario (Ministry of the Solicitor General & Correctional Services) Employer BEFORE: M. Gorsky Vice-Chairperson J. Carruthers Member M. O'Toote Member FOR THE R. Blair GRIEVOR Counsel Ryder, Wright, Blair & Doyle Barristers & Solicitors FOR THE S. Raymond EMPLOYER Counsel Hicks, Morley, Hamilton, Stewart, Storie Barristers & Solicitors HEARING September 30, 1993 December 16, 1994. June 7, 1995 August-10, 11, 1995 November 27, 29, 1995 May 13, 27, 1996 June 3, 1996 1 DECISION In an earlier decision with respect to the matter before us, dated February 23, 1993, that dealt with preliminary issues relating to arbitrability, the following appears, at pp. 1-2: THE GRIEVANCE The Grievor, Fernando Lumley, was at all material times a Correctional Officer 2, employed by the Ministry of Correctional Services at the Metropolitan Toronto East Detention Centre ... and he has a seniority date of January 4, 1982. On June 19, 1991, Mr. Lumley filed a grievance (Exhibit 1), as follows: "I grieve that management violated article A of the collective agreement," and he requested by way of settlement: "1. Compensation for economic and non-economic losses. 2. Be provided with developmental assignments commensurate with my education and experience. 3. External investigation of complaints to Supt. Doherty June 5, 1991." Article A of the collective agreement, contains the heading: "NO DISCRIMINATiON/EMPLOYMENT EQUITY," and is as follows: A.1 There shall be no discrimination practised by reason of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, or handicap, as defined in section 9(1) of the Ontario Human Rights Code (OHRC). A.2 It is recognized that in accordance with section 13 of the OHRC, the Employer's employment equity program shall not be considered a contravention of this article. BACKGROUND 2 This grievance arises out of Mr. Lumley's having "been denied an interview with respect to a management developmental assignment at Metro East which he had applied for in the fall of 1990." The preliminary issues decided by this panel of the Board in its decision 'of February 23, 1993, related to two objections to arbitrability raised by the Employer and argued at a hearin~ with respect to this matter that took place on August 24, 1992. These objections are set out at p. 5 of the earlier decision: Counsel for the Employer then proceeded to raise two objections to arbitrability, notice of which had been furnished to the Union prior to the previous date scheduled for the hearing on May 23, 1992. These objections were as follows: 1. That the grievance was out of time and hence inarbitrable under the provisions of the Crown Employees Collective Barqaininq Act [R.S.0. 1980, c. 108] 2. That the ~rievance was not arbitrable by virtue of the provisions of s.18(1) (b) of the Act, which is as follows: 18. - (1) Every collective agreement shall be deemed to provide that it is the exclusive function of the employer to manage, which function, without limitin~ the ~enerality of the foregoing, includes the right to determine, (b) merit system, training and development, appraisal and superannuation, the governing principles of which are subject to review by the employer with the bargaining agent, and such matters will n~t be the subject of collective bargaining nor come within the jurisdiction of a board. 3 In its interim decision, commencing at p. 52, the Board found: 1. In accordance with the particulars furnished by counsel for the Union, the grievance is limited to one claiming that the Grievor was not granted an interview for discriminatory reasons based on his race. In paragraph 2, at p. 53 of its interim decision, ~he Board found that the grievance was timely and that the objection based on the lack of jurisdiction to hear a grievance based on the Employer having carried out the exclusive function with respect to training and development also failed. At pp. 53-4, the Board stated: 4. In declaring that the grievance is arbitrable, we emphasize that the claim which is arbitrable is limited by the statement contained in the particulars relating to the alleged discrimination against Mr. Lumley based on race resulting in his being refused an interview for the management development assignment at Toronto East. 5. Because of our limited jurisdiction to review management's exercise of its exclusive function with respect to training and development, uhe evidence that we hear must be restricted to whether Mr. Lumley was discriminated against on the basis of his race. If he was, then the decision could not be said to have been made in good faith. As was noted in Bousque~, [541/90 etc.] however broad are management's rights with respect to carrying out the exclusive functions assigned to it under the [Crown Employees Collective Bargaining] Act, it cannot act in bad faith. Merely because the training position was a management one, does not alter the fact that the Employer, in the case before us, was determining a matter encompassed under s.18(1) (b) "training and development." The ~unction was being exercised with respect to bargaining unit personnel under management's rights pursuant to s.18(1) (b) of the Ac~. To allow the Employer to decide which bargaining unit employees will receive training and development opportunities while engaging in 4 discriminatory practices based on the race of employees would permit the Employer to carry out its rights-in bad faith. It could never have been the intention to immunize management from challenges based on making ~decisions founded on "discrimination practiced by reason of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, or handicap, as defined in s.9(1) of the Ontario Euman Rights Code [R.S.O. 1990 c. H.19]..." Such acts of discrimination are prohibited and cannot be equated with the kind of social discrimination used in the example given by counsel for the Employer. Mr. Lumley applied for the management development assignment on October 29, 1990. J.A.. Wallen, Regional Personnel Administrator, Metro Region, sent him a letter dated November 30, 1990 (Exhibit 3}, which is as follows: Thank you for your'interest shown in applying for the above noted program. The personal information contained in your application/resume is collected under the authority of the Public Service Act, S.4(c), S.6(1) and S.24 and was used to assess your qualifications. All material relating to your submission was carefully analyzed by the program committee. You will hopefully have been verbally advised by now that you were, unfortunately, not selected to proceed to the next phase of the program. We realize that you will find this decision disappointing. We hope that you will not let it deter you in pursuing your career objectives. On behalf of the program committee, I would like to thank you once again for your interest, in this program. We also wish you the best during the coming. Holiday Season, 5 Particulars with respect to Mr. Lumley's allegations are found in Exhibit 8, dated November 12, 1991, which was sent by Mr. K. Whitaker, then counsel for the Union, to Julia Ravenscroft, Grievance Administration Officer, Grievance Administration & Negotiation, for the Employer, which is as follows: I have now met with Mr. Lumley and can provide you with the particulars which you have requested. In the fall of 1990, Mr. Lumley applied for a management development assignment at Metro East. There were a number of other employees in addition to Mr. Lumley who applied for this position including Audrey Williams and Vince Daley. Ms. Williams, Mr. Daley and Mr. Lumley are black. None of the black applicants were granted interviews and three candidates who were awarded the developmental assignments, Rose Buhagiar, Dave Mackinnon and Lee Anne Cannon are all white. Mro Lumley was troubled by the fact that he' was not granted an interview despite his good performance record and education. After pursuing the issue of why he was not granted an interview nor considered for the position past the initial screening, he was informed by Stephen Small that the decision was based on a Memorandum which was sent to the Selection Committee by Mrs. D. Doherty, Superintendent. I have enclosed a copy of the Memorandum. The content of the Memorandum is inconsistent with Mr. Lumley's most recent PPRs and we say that in the circumstances, Mr. Lumley has been discriminated against on the basis of his race contrary to Article A.1 of the Collective Agreement. It is my intention to summons the material submitted by all candidates who applied for the developmental assignment, all documents relating to the selection procedure, interviews, and the personnel files of all 6 candidates. I would appreciate it if you could advise me whether or not the Ministry is prepared to provide this information without the necessity of a summons. I would ask that you advise me by Friday November 15, 1991 as to whether or not the Ministry is prepared to produce this material. If I have not heard from you by that date I will be issuing a summons to the Deputy Minister for the documentation. Please let me know if there is any other information I can provide you with about the nature of the Union's case. The memorandum referred to in Mr. Whitaker's letter is dated November 19, 1990 (see Tab 1, Exhibit 9), and is as follows: Although Mr. Lumley has applied for a developmental assignment, I have not seen any indication from Mr. Lumley's behaviour at Metro Toronto East Detention Centre that he has sufficiently achieved management capabilities or even potential for leadership. Mr. Lumley has been enrolled in the Business Administration Program at York University. Once he completes this course .he would be well advised to pursue business administration opportunities through the competitive process. After receiving Exhibit 3.from Mr. Wallen, early in December of 1990, Mr. Lumley attended on the Area Regional Personnel Administrator, Jim Morris, to express his disappointment at not being selected to proceed to the next phase of the selection process, being the interview phase, and to obtain more information as to why he had been "bypassed." Accordin~ to Mr. Lumley, Mr. Morris indicated that this information would better 7 be obtained from Mr. Wallen, who was the chairperson of the selection committee (Program Committee) for the competition. Mr. Morris was also said to have referred to the fact that there were a large number of applicants, and many of them had not been interviewed, having been screened out prior to the interview phase of the competition. Mr. Lumley was frustrated as a result of difficulties he encountered in meeting with Mr. Wallen. On his third attempt, he was able to reach Mr. Wallen by telephone, and the latter indicated that he would send Mr. Lumley a letter in response to his inquiries. Mr. Wallen directed Mr. Lumley tO meet with Steve Small, who was said to have evaluated Mr. Lumley's application and upon whose recommendation, in part, Mr. Lumley was not selected to proceed to the next phase of the selection process, being the interview phase. Mr. Lumley then unsuccessfully attempted to reach Mr. Small by telephone and thereupon attended personally on him and was informed that he (Mr. Small) was then too busy to see him. At that time Mr. Small requested that the grievor be accompanied by a Union representative at any future meeting involving him (Mr. Small). Mr. Lumley testified that it was irrelevant to him whether he was accompanied by a U~ion representative when he met with Mr. Small, but agreed to seek union representation because Mr. Small insisted that he do so. It was evident that Mr. Lumley 8 believed that the matter was being delayed by management, and testified that he made at least three unsuccessful attempts between December of 1990 and January of 1991 to meet with Mr. Small. Because of his frustration arising from his conclusion that he had not been given a satisfactory explanation from the Employer for not granting him an interview, he decided to obtain the assistance of Alvin Curling, then MPP for Scarborough North. The Union filed Exhibit 5, which is a letter dated March 6, 1991, to Mr. Curling from Mr. Wallen, which is as follows: Thank you for your February 14, 1991 letter on behalf of Mr. Lumley, one of your constituents, regarding his application for the Metro Region Management Development Program. On November 30, 1990 I wrote to Mr. Lumley advising him that he would not be granted an interview for the developmental program. I am quite prepared to provide Mr. Lumley with a detailed explanation as to why he was not selected. Ail he needs to do is contact the undersigned. I have taken the liberty of forwarding a copy of this letter to Mr. Lumley in order that he be aware of the process to follow. Thank you for bringing this matter ~to my attention. As a result of receiving the above letter, Mr. Lumley endeavoured to arrange a meeting with Mr. Wallen, some time in March of 1991, and Mr. Wallen directed him to meet with Mr. 9 Small. Mr. Small told Mr. Lumley that he had a "tight schedule" and would try to meet with him late in May of t991. Unfortunately, after making three or four additional attempts to meet with Mr. Small, on the one occasion when Mr. Small was available, Mr. Lumley was unable to obtain union representation, as required by Mr. Small. Mr. Lumley met with Mr. Small late in May of 1991 (Mr. Lumley could not remember the exact date) and Mr. Small denied that any such meeting occurred on or about that time. At that time, according to Mr. Lumley, Mr. Small gave him two documents which were intended to relate to him why he had not been granted an interview. This meeting, according to Mr. Lumley, took place in Mr. Small's office at the Metropolitan Toronto East Detention Centre ("MTEDC"), and it lasted less than ten minutes. Mr. Lumley testified that he then informed Mr. Small that he had been told by Mr. Wallen that his rejection from the program was as a result of submissions received from Mr. Small by the ~rogram Committee, Metro Region Management, Development Program. Mr. Small was said to have then proceeded to a filing cabinet in his office and removed two documents: one being an evaluation performed by him for the Program Committee, the other being the above-quoted letter from Ms. Dohe~ty to the Program Committee, dated November 19, 1990. 10 Mr. Lumley-was very upset by what had occurred at the above meeting with Mr. Small and prepared a memorandum (Exhibit 4) dated June 5, 1991, addressed to Ms. Doherty and Mr. Small, which indicates clearly his view that he had been discriminated against because of race as a result of the way his application was dealt with, which is set out, below, at pp. 117-18. Mr. Lumley stated that he first came to the conclusion that he had been discriminated against by reason of "race [or] colour, ... as defined in section 9(1) of the Ontario Human Rights Code (QHRC)," between the date in late May of 1991, when he was given the two documents referred to at his meeting with Mr. Small, and June 19, 1991, when he filed his grievance. He regarded the documents as representing very unfair negative commentary with respect to himself. He testified further that his conclusions were re-enforced by conversations he had with two other black candidates for the development program position who, he said, were similarly upset because of their perceptions that they had been discriminated against because they were black. In cross-examination at the hearing held on August 24, 1992, Mr. Lumley indicated that, based on the statements contained in paragraph 1 of Exhibit 4, he was of the opinion that he had been discriminated against by June 5, f991, and not, as he had earlier testified, between late May of 1991 and June 19, 1991. Section 9 of the Code (R.S.O. 1990, c. H. 19, provides: 11 No person ~shall infinge or do, directly or indirectly, anything that infringes a right under this Part. Section 5(1) of Part 1 of ~he Code provides, in part: Every person has a right to equal treatment with respect to employment without discrimination because of race ... [or] colour Upon the resumption of the hearing on.June 7, 1995, counsel for the Union took the position that the Board should hear the grievance on the merits, and if it was allowed, remit the matter to the partie~ to see if they could agree to an appropriate remedy, rather than to have to call evidence on the merits as well as with respect to the specific remedies requested. Counsel for the Union also indicated that the Code (s. 41(1) (b)) provides for an award for "mental anguish" and for loss of income, which in this case was said to be represented by the difference in pay Mr. Lumley would have received on the developmental assignment and his regular rate of pay. In his opening statement, Mr. Raymond, for the Employer, emphasized that the dispute between the parties was limited to whether Mr. Lumley had been denied an interview for a developmental position for discriminatory reasons contrary to the provisions of the Code. He stated that even if Mr. Lumley had been granted an interview, we could not know if, following the 12 conduct of a proper interview, he would have been selected as a successful candidate. Accordingly, there would remain an outstanding issue, even if the Board decided that Mr. Lumley had been denied an interview for the discriminatory reasons that he attributed to the Employer: the Board would still have to deal with the issue of what to do, and the Board would be faced with the fact that having passed the preliminary screenin~ does not mean that a candidate would be successful in receiving a developmental assignment. The Board ruled that it would merely deal with the issue of whether the grievor was denied an interview as a result of his having been discriminated against contrary to the provisions of the Code: because of his race or colour. Neither party took issue with the addition of "colour." Because of the seriousness of the allegations made by Mr. Lumley, and because of the significant conflicts in the lengthy evidence that was adduced, it is necessary to further review the ~vidence in detail in order that the basis for our conclusions on the merits can be understood. Evidence of the Grievor, Fernando Lumley The grievor testified at the hearing on the merits, that commenced on June 7, 1995, as follows: 13 1. He referred to Tab 7 of Exhibit 9, which is his r~sum~, and which he submitted to management in support of his application for the developmental program. ~ 2. In his r~sum~, he noted that he was then "working towards a Bachelors Degree in Business Administration" (which he received in November of 1991). He was attending classes at York University in pursuit of the degree while working as a C02 at the Metro Toronto East Detention Centre ("MTEDC"). 3. He obtained a "Bachelor of Arts, [in] Philosophy" in 1973, at York University. 4. He also referred to his receipt of a Diploma in Management Studies, from the University of the West Indies, Jamaica in 1980. 5. Between 1973 and 1981, he worked for the Government of Jamaica: In-house management analyst [Ministry of Youth & Community Development] making recommendations to the Permanent Secretary, Directors and Section Heads on the Organization Structures ~ecessary to achieve operational efficiency; also performed miscellaneous administrative functions. Ministry. of Public Service 14 a. 'Management Services Division Received training in Organization and Methods and worked as Management Analyst. b. Staffing and Budget Division Examine draft recurrent estimates to ensure correctness regarding numbers and grades of staff as well as the related allocation of funds for their salaries. Ministry of Finance, Supply Division Executive Officer - received training and worked in area of Personnel Administration. 6. In elaborating upon his service with the Government of Jamaica in a management capacity, where he made "recommendations to the Permanent Secretary," he identified that person as holding the rank of a deputy minister. 7. The Union endeavoured to introduce a document found in Tab 8, Exhibit 9, being the grievor's Perforraance Planning and Review ("PPR") assessment covering the period January 1, 1991, to December 31, 1991, which is shown to be an "Annual Report." There was an objection raised to the document being introduced as an exhibit because it post- dated the incidents bef6re us. 15 Counsel for the Union argued that the PPR form that he wished to introduce was for a period commencing January 1, 1991, approximately five weeks after Mr. Small's disputed assessment that was relied upon by the Program Committee, and was being introduced to show the "significant disparity" between the assessments of the grievor which occurred at about the same time. 8. In the absence of any evidence to show that there was a marked change in the grievor's performance after the committee considered the earlier assessments with respect to him, we would regard the PPR form completed by the grievor's supervisor, G.A. Ellis, as being indicative of his performance at the time his application was considered by the Program Committee. We note that Mr. Small was the grievor's next level supervisor, and counter-signed the PPR. 9. On the Assessment of Critical Skills chart, being Section 1 of the PPR, which provides for the following ratings: (t) unsatisfactory, (2) needs improvement, (3) satisfactory, (4) commendable, and (5) exceptional, the grievor scored 4, or commendable. In referring to Attendance and 16 Punctuality, there was a notation: "Mr. Lumley sets a fine example to other staff." Under "Summary/Comments/Recommendations," Section 4, the Assessor states: Mr. Lumley co-operates well with his peer group and management. He is competent in his assigned duties and is a mature, responsible person. Offender management skills are quite satisfactory. 10. Exhibit 10 is a Performance Planning and Review form filled out with respect to Mr. Lumtey covering the period January 30, 1987, to January 30, 1988, which was prepared by one of his supervisors, D. Stevens, in conjunction with another supervisor, R. Malcolm. The form is dated January 23, 1988. It is not possible to ascertain the name of the person who countersigned as the next level supervisor, although it appears to have been signed by that person on January 25, 1988. 11. Mr. Stevens is now the unit manager in charge of shift scheduling at the MTEDC. At the time the document was completed, he was a unit manager and one of the grievor's supervisors. The grievor did not recall any other appraisal between Exhibit 10 17 completed on January 23, 1988, and the one above referred to earlier found at Tab 8 of Exhibit 9. 12. Mr. Lumley stated that he had frequent contact with Mr. Stevens, who would have had a good opportunity to observe his performance. Under Assessment of Critical Skills in Exhibit 10, the grievor had a rating of 3.5 out of 4 in seven of the skill segments; a rating of 4 in one; and a rating of 3. in two of the areas assessed. In the case of Exhibit 10, the scale provided for: (1) not satisfactory; (2) requires improvement; (3) satisfactory; and (4) consistently exceptional. Under Additional Skills, there is a notation: "[S]econd language skill (french)." 13. Under Attendance and Punctuality, there is a notation: "Mr. Lumley is commended for good attendance in this period." 14. Under "Summary/Comments/Recommendations," the form states: Mr. Lumley enjoys a good rapport with peers and Supervisors. 18 -A neat and tidy person in respect to dress and deportment, however written reports and log entries although concise and informative at times are very difficult to read. Units in his care are maintained at acceptable levels of cleanliness, meeting the needs of inmates in his care and the mandate as a Correctional Officer. Mr. Lumley's knowledge and application of safe work habits have not brought hi~ into conflict with Institutional regulations. Mr. Lumley stated that he did not'grieve Exhibit 10 and had no recollection of raisin~ any questions as to its accuracy at the time it was completed. 16. He recalled having had evaluations prior to Exhibit 10, but could not recall exactly when. He recalled that the evaluations might have been a little different from those represented by Exhibit 10 and Exhibit 9, Tab 8, and stated that'his evaluations ranged from "good to very good." He added that his previous PPR ratings were "approximately the same as in Exhibit 10." He recalled that he might ~ave had his perfor~nance questioned by his supervisor a few months after he started his employment with the Ministry in 19 January of 1982, but since then he has had only good evaluations. 17. He had worked with Mr. Small only intermittently prior to receiving his evaluation (Exhibit 10). As the Senior Assistant Superintendent, Mr. Small sometimes officiated at the adjudication of matters relating to inmate misconduct. On occasion, when the grievor was on the unit at the time, Mr. Small would ask him to escort inmates to him in order that they could be interviewed. Mr. Small also asked him questions concerning his opinion with respect to different work-related matters. His contact with his immediate supervisors was more frequent. 18. Mr. Lumley added that Mr. Small also observed him when he (Mr. Small) visited (walked through) the unit where he was located. This "morning parade" occurred every day, and it was on such occasions that he observed, and would be observed by, Mr. Small. On the occasions when he saw Mr. Small during morning parade, the length of any contact would be between two and three minutes. It would only be when there was a problem on the unit that Mr. Small would stop and talk to COs. Mr. Lumley 20 added that he had a few problems on the unit, and it would only be when they arose that he would have reason to have discussions with Mr. Small. 19. Mr. Small never made any negative comments to Mr. Lumley about his work performance. 20. During the period of his employment as a CO, there were a number of occasions when managers commented favourably, to him about his work performance. 21. He referred to an incident in the late 1980's when J. Macdonald, a security officer, asked him whether he wanted to"submit his name for consideration for promotion to corporal, which position Mr. Lumley likened to that of a unit manager. Mr. Lumley stated that he could not consider doing so at that time because he was attending York University in pursuit of a Bachelor of Business Administration degree. He also referred to an incident, around 1986 or 1987, when Gary Commeford, who he believed was a Senior Assistant or Deputy Superintendent at the time, praised him for his work performance, especially his punctuality. He also referred to P. Mulhern, who in the 21 early. 1990's, while acting as Assistant Superintendent, praised him for consistently Good performance. He also referred to an occasion in the late 1980's when GeorGe Simpson, a Superintendent of the Institution, praised him for completinG a French language instruction course, while attendinG York University in pursuit of a business degree, and, at the same time, working and looking after his family. He also referred to receiving praise for his work performance from unit managers Casey and Parrish. 22. Mr. Lumley stated that there was no indication from any of his supervisors, between January 30, 1988 and the time he applied for the developmental position in the Fall of 1990, that his work performance had changed in any significant way. 23. Mr. Lumley was questioned about his working relationship with Ms. Doherty. He stated that he recalled that she commenced work at the MTEDC in the late Summer of 1990, and that he had very little communication with her. Such communication as occurred involved the exchange of "good mornings." " 22 24. He recalled that Ms. Doherty was occasionally in charge of the Superintendent's parade, but less often than Mr. Small. He also recalled that she performed "walk throughs," but less frequently than Mr. Small. He believed that she had stopped and spoken to him on one occasion when she did a walk through, but could not recall whether this occurred before or after he filed his grievance. He recalled no occasion when she spoke to him about his work performance prior to his applying for the development opportunity with which we are concerned. 25. The opportunity bulletin with respect to the Metro Region Management Development Program is found in Exhibit 9, Tab 3, and is Appendix 1 to this decision. He indicated his interest in the program by submittin~ a letter of application with supporting material. He also stated that he had a brief conversation with Ms. Doherty in her office when he submitted his application, at that time indicating to her his interest in the program. She was said not to have responded to his expression of interest. 23 26. Hecause he had been in his position as a CO for approximately eight years, had rendered good service in that capacity, and was nearing the completion of his business degree, he felt, given his educational and management experience background, that the development program would be an avenue for him to make a greater contribution to the Ministry. He said that he planned his career goals so as to be able to go as far as he could in the Ministry, based on his talents. 27. He believed that he would rate highly in the competition based on the guidelines and eligibility criteria in the posting. He specifically mentioned the work that he had done in his academic program at York University in the area of organization studies and group activities, where he had received positive feedback from his instructors. 28. He referred to Tab 1 of Exhibit 9, being the Memorandum to the Program Committee, Metro Region Management, Development Program, from Ms. Doherty, dated November 19, 1990~' referred to above, which document was presented to him by Mr. Small in late May of 1991. 24 29. He referred to the contents of Exhibit 9, Tab 3, being the "Assessment Criteria (Skills and Abilities) (for comment by supervisors, to be shared with applicants)," which he was given by Mr. Small (referring to the said meeting that eventually took place after Mr. Curling's intervention on his behalf.) The document, dated November 23, 1990, which was completed by Mr. Small with respect to Mr. Lumley, contained a number of headings, along with Mr. Small's handwritten observations: 1. Program Management - untested in his current position - needs exposure to area 2. Planninq - satisfactory 3. Decision Making - good 4. Initiative - satisfactory 5. Thinking/Conceptual Ability - good 6. Analysis/Synthesis 25 - -satisfactory 7. Innovation - satisfactory 8. Workload Management - satisfactory 9. Communications - good, orally and in written form 10. Interpersonal - good relationship with colleagues 30. It was at the meeting with Mr. Small, at the end of May, 1991, that he expected to receive an explanation as to why he was screened out by the program selection committee. It was Mr. Small who gave him Ms. Doherty's memorandum that had been sent to the selection committee and Mr. Small's said assessment that he had been led to believe was also sent to the committee. Mr. Small also told Mr. Lumley that he (Mr. Lumley) would not be "pleased" with Ms. Doherty's memorandum. 31. Mr. Lumley briefly glanced at Mr. Small's assessment of him, referred to above, but did not ask any questions relating to it at that time. 26 32. While he would have liked a "better" assessment than "satisfactory" where that term appeared in the document, he did not have any other immediate concerns about its contents. 33. He was particularly concerned because it was his view that he should have been shown Mr. Small's assessment of him before the document was submitted to the selection committee. This was based on the statement underneath the heading of the document: "for comment by supervisors, to be shared with applicants." 34. He felt that he should have been given the opportunity of responding to the statements made by Mr. Small in an attempt to show where they were not accurate or fair. He also found Ms. Doherty's memorandum of November 19, 1990 (Tab 1 Exhibit 9) to be "surprising" because the matter was so important, and he did not have a chance to make representations to her or the committee with respect to it. 35. His response to Ms. Doherty's memorandum was one of "shock" that something so negative could have been written about himself. 36. He believed that Ms. Doherty's evaluation, which was intended to be used by the Program Committee, was "shocking" in the light of his otherwise good evaluations, above referred to. 37. He was so angry at the time he met with Mr. Small in late May of 1991, that he did not ask him any further questions, referring specifically to his being very upset about the contents of Ms. Doherty's memorandum. 38. He then referred to another assessment of himself, also dated November 23, 1990, and also prepared by Mr. Small, which was completed on the same printed form as was Mr. Small's assessment of him above referred to. Mr. Small's comments in this assessment are, for the most part, significantly more negative than those above referred to. The second assessment is found at Tab 7 of Exhibit 9. 39. Under "Program Management" in the first assessment, Mr. Small states: "untested in his current position" and "needs exposure to area." In the second assessment, ~nder the same head, Mr. Small entered: "potential exists." 28 40. In the first assessment, under "Planning," Mr. Small stated: "satisfactory." In the second one, under "Planning," he stated: "lacks ability." 41. In the first assessment, under "Decision Making," Mr. Small stated: "good." In the second one he stated: "satisfactory." 42. In the first assessment, under "Initiative," Mr. Small stated: "satisfactory." In the second one, under the same heading, he stated: "lacks initiative." 43. Under ,,Thinking/Conceptual Ability," Mr. Small stated, in his first assessment: "good." In the second one, he stated, under the same heading: "somewhat irrational at times." Under ,,Analysis/Synthesis," Mr. Small stated, in his first assessment~ "satisfactory." In his second assessment, under the same heading, he stated: "unable to analyze situations thoroughly." 45. Under the heading "InnoVation," in the first assessment, Mr. Small stated: "satisfactory." In 29 his second one, under the same heading, he stated: "follower, not a leader." 46. Under "Workload Management," Mr. Small stated, in his first assessment: "satisfactory." In the second one, under the same heading, he stated: "needs training/courses in this area." 47. Under "Communications," Mr. Small stated, in the first assessment: "good, orally and in written form." In the second assessment under the same heading, Mr. Small stated: "somewhat difficult to understand at times, good written skills." 48. Under the heading "Interpersonal," Mr. Small stated, in his first assessment: "good relationship with colleagues." He recorded the same assessment in his second assessment. 49. Mr. Lumtey stated that he had not seen the second assessment prior to its being shown to him at the hearing and believed that it had been obtained after a request for production of documents was made by Union counsel. Only Mr. Small's first assessment was given to him. It was only the second assessment that was given to the Program 3O Committee for use in the screening exercise. In the circumstances, Mr. Lumley assumed that Mr. Small had submitted his first assessment to the committee. 50. He regarded all of the assessments of his performance in the Fall of 1990 by Ms. Doherty and Mr. Small to be full of "falsehoods," and was very dissatisfied with them. He added that his work in program management as an administrative assistant to the Permanent Secretary, referred to in his curriculum vitae, amply demonstrated his abilities in that area. 51. He was shown Exhibit 7, being a document that the Union obtained from the Employer, containing a list of the candidates granted an interview with respect to the Metro Region Management Development Program - 1991. Three persons on the list of candidates, Dave Mackinnon, Lee Anne Cannon and Rose Buhagiar, are shown to be from the MTEDC, and Mr. Lumley testified that they were all white. 52. He was also affected by.the fact that none of the black candidates at the MTEDC had been selected for an interview, and he identified them as Audrey 31 Williams and Vince Daley. He said that he spoke to- both of them after they were screened out, and ........ they were said to have indicated their dissatisfaction with the selection process. 53. He believed that'if he had been successful in his application for the development position, he would have received training that would have assisted him to "grow in the Ministry." He knew that if he was a successful candidate, it would not mean that he would autom~tically move into a permanent management position, but believed that this was his route to eventually securing such a position. He believed that the experience that he would receive in a development position would further bring his skills and abilities to the attention of management and improve his chance for advancement in the future. In cross-examination, Mr. Lumley testified: 54. He believed that he would, as of right,.receive a first interview at the institutional level, where he would be competing against internal candidates. He would then be entitled to a further interview before the Program Committee, where he would be competing aHainst applicants from all of'the institutions "for final screening." He added that there would "probably" be a later interview if he was selected "as a final candidate." He concluded that there would be an institutional interview because he believed t~at he would have to be first selected at the "institutional level." He believed that the Program Committee would then select the "best of the best - Metro wide." 55. He did not regard the words in paragraph one of the ~uidelines contained in the posting: "This process includes an initial screening and possible short-listing of applicants, and a subsequent personal interview of potential candidates," as indicating that there would be only one screening: that to be performed by the Program Committee. 56. He was asked whether he believed that successful candidates would be returned to their regular jobs at the end of the development assignment, and responded: "maybe and maybe not." 57. He was referred to the first of the eligibility criteria contained in the opportunity bulletin: 33 "sign%ficant and current classified or directly related experience in a correctional environment." He acknowledged that he did not have any such experience, but regarded his Heneral duty officer's experience of over eight years as representing evidence of "good service." 58. When asked whether persons with managerial experience with the Ministry would have more qualifications under the first of the eligibility requirements, he answered that this was not his impression. He regarded the bulletin as being primarily an invitation to persons from outside of management, and as being directed at such persons so as to enable the Employer to "broaden the catchment area" to see if there was a pool of individuals outside of current management who were ready to move into management positions. He also understood that it was an opportunity ~o assist current managers to develop, adding: "the good ones." 59. In response to a question as to whether he agreed that a person could be a. very good lawyer and not become a good judge, Mr. Lumley responded that that could be the case. He added that his answer 34 would depend on what was meant by a "good judge": there are many facets to being'a good judge. 60. He acknowledged that performance appraisals conducted with respect to correctional 'officers were based on their performance in that position. The question put to Mr. Lumley was expanded upon, and he was asked whether the abilities associated with being a good correctional officer were the same as those required of a manager. He responded in the affirmative, adding that some of the criteria relevant to becoming a good manager were the same as those that would be expected of a good correctional officer. 61. He was asked how he would rate his oral communication skills. He answered that he had received personal commendations from University Professors who taught him, and had worked with the Chairman of the Philosophy Department at York University in the use of Hegel to clarify Kant. 62. He was referred to the sixth of the eligibility criteria: "applicants' .on-the-job skills and abilities will be assessed in the following areas: program management, planning, decision-making, 35 initiative, thinking/conceptual ability, analysis, synthesis, innovation, workload management, communications, interpersonal." He was first asked in what way he had demonstrated ability in program management. He replied that when he had applied for a job with the Ministry in t981 as a correctional officer, he had provided the Employer with information concerning his prior employment in Jamaica, above referred to. He also referred to the fact that he had received a reference from the Chairman of the Board of "Ebony Park," an agricultural project whose board he sat on, that he had submitted with his application for the position he presently holds. He also referred to a letter that he submitted with his application, being a letter of commendation from the Permanent Secretary with respect to his service in organizing a seminar. He acknowledged that between 1981 and 1990, he had little opportunity to demonstrate an ability for program management while employed as a correctional officer at the MTEDC. Nevertheless, he did not feel that the absence of management experience during the intervening years, to the date of his application for the subject position, was significant. He felt that anyone looking at his earlier application 36 would have been aware of his experience, and would have to have concluded that he was more than capable of performing program management functions. When pressed in cross-examination to admit that the nine-year period at the MTEDC was the significant period for the manifestation of program management skills, he replied that the Employer was in a position, based on the totality of the evidence, to assess his abilities in that area. 63. He referred to Lee A~ne Cannon, who was employed at the MTEDC and who was granted an interview. It was pointed out that she was the Institutional Chairperson in the unit, and Mr. Lumley acknowledged that this was correct. He also acknowledged that the holding of this position would have represented a demonstration of program management skills. When it was pointed out to him that he had never been a chairperson at the MTEDC, Mr. Lumley observed that all.of.his spare time over a period of six-and-a-half years involved his attendance at York University to complete his B.B.A. degree, some of which was relevant to demonstrate his program management abilities. He .also referred to his diploma in management studies 37 from the University of the West Indies, which he considered tH be ample indication of his'having the potential to perform program management duties. Referring to the chairmanship of the United Way held by Ms. Cannon, which was said to indicate program management potential, he stated that his pursuing management studies at the university level would be a much more significant indicator of management potential and ability than was Ms. Cannon's holding the United Way chair at the MTEDCo He felt that an "unbiased" manager would have been aware of this. He indicated that he felt that.management at the MTEDC was biased against him because of his colour and race and stated that his conclusion was partly affected by the fact that management appeared to have overlooked his academic qualifications. He stated that the three black applicants from the MTEDC had superior academic qualifications and were denied an interview. He re~arded this as being "more than a coincidence." He had reason to believe that race or colour had a part to play in his not receivin~ an interview. 64. He was asked what he regarded "Initiative," as used in the eligibility criteria, to mean. He 38 replied that his pursuing a B.B.A. degree at York University, and four years of volunteer work involving probation and parole, were clear indications of initiative. 65. In response to a question as to whether he was on any committees at the institution, he stated that he believed that he was on the Race Relations Committee, in 1990. He added that he was not sure whether he served on this committee before or after the filing of his grievance. 66. He was directed to the statement in the eligibility criteria of the opportunity bulletin: Interested applicants who meet the above criteria are invited to submit a comprehensive resume, with covering letter, to their Superintendent/Area Manager .... He was asked who his Superintendent was at the time, and replied that it was Ms. Doherty. 67. Mr. Lumley was also referred to another part of the eligibility criteria: Applicant's covering letter should indicate what the individual's expectations are in applyin~ to this program... 39 He was asked whether he had done that, and what he understood "expectations" to mean. He replied that he understood the term to mean that he should indicate how he believed he would benefit from the program and what he might be able to contribute to it. 68. He was also referred to the following portion of the eligibility criteria: ...should also indicate consent to allow your personnel file to be accessed for purposes of assessing your qualifications. He was asked what the quoted portion meant. His reply was only partly responsive: that he did not place much significance on the quoted statement because his status as a public servant would make his file accessible without his consent. 69. He was referred to his application for the development program, dated October 29,. 1990, with which he enclosed his r~sum~ and transcript of courses and grades from the Business Administration program at York University, addressed to Mr. J. Morris, Area Personnel Administrator, Metro Region, found in Exhibit 9, 4O Tab 7~ It was pointed out to him that the application was not sent to Ms. Doherty, ~as required in the opportunity bulletin. He stated that he ~ave it to Ms. Doherty to pass on to Mr. Morris, as it was his understanding that the application was to be routed through Ms. Doherty to him. He a~reed that he had not indicated in his application that he was ~iving permission to access to his personnel file. 70. In response to a question put to him suggesting that he had not included very much about his "expectations," he replied that he had indicated that he hoped that the program would "enable [him] to make a valuable contribution to the Ministry." 71. He agreed with the suggestion made to him that there was nothing in his r~sum~ that indicated that he had had any experience in program management at the MTEDC or evidence that he had shown initiative while there. 72. It was apparent throughout his examination and cross-examination that Mr. Lumley regarded his 41 being, black as the singular reason for his not receiving an interview by the Program Committee, and this conclusion was affected by the fact that, in his view, not only himself, but the other black candidates, who similarly were not granted interviews, were better qualified and had higher academic qualifications (university degrees) than the successful applicants who were not black. He added that he did not mean to say that all of the six white candidates who had been granted interviews had inferior academic qualifications compared to those held by the black candidates. He referred to Don Mikel and David Hill, adding that he had the "impression" that Mr. Hill had no post- secondary education. He then added that he was not in a position to say whether the white candidates were te~s qualified "overall." 73. He felt that he was "ovsrall" more qualified for the development position than some of the successful white candidates. He-referred to Ms. Challis and Mr. Hill, as white candidates he felt were less qualified in the "overall" than himself. 42 74. He aqknowledged that no candidate from MTEDC who was a correctional officer received an interview for the development position. 75. He was asked questions about how he thought the selection process would be carried out, and repeated his evidence-in-chief that he understood that there would be interviews at the local institutional level (which did not happen), and that at that stage the names of the "better" candidates would be passed on to the Program Committee. 76. Further in cross-examination, Mr. Lumley stated that he believed that candidates at the MTEDC would receive an interview at the local level as a kind of pre-pre-screening. He added that he did not know whether Mr. Daley had received such an interview, but could speak for himself as a person who had not received one. 77. It was put to him that there were no pre-screening interviews either provided for or conducted at the MTEDC, and he stated that he had no facts which would enable him to know what had happened in that regard. 43 78. He was asked whether he agreed that all of the applications and r~sum~s from the MTEDC Were forwarded to the Program Committee, along with a memorancum of assessment with respect to each candidate from Ms. Doherty, and an assessment by each candidate's supervisor, being Mr. Small in his case. It was put to him that on the basis of that information and other information contained in an employee's personnel file, the selection committee would decide who to interview. He was asked whether he had any reason to doubt that this was the process. He did not directly respond to the question, but stated that after a request was made for production by Kevin Whitaker, the Union's previous counsel in this case, evidence of a "forgery" came to light, with reference being made to Mr. Small's second assessment dated November 23, 1990 (the one that was not given to Mr. Lumley. Mr. Lumley referred Go the two assessments of November 23, 1990 completed by Mr. Small, adding that he now knew that only the second one was forwarded to the Program Committee, and that it was significantly different and less favourable to him than t-he first one, being the one that was given to him in late May of 1991. The second assessment to the selection committee, 44 which he had not previously been aware of, was a source of Hreat concern to him. It appeared to him that the conduct of Mr. Small and Ms. Doherty indicated that they were attempting to insure that he would not be successful in the competition because he was black. 79. It was put to him that he did not know who Mr. Wallen was until after the competition was completed, and was asked why Mr. Wallen would "orchestrate a forgery against him." He did not answer responsively but stated that the information he now has satisfies him that he was the subject of illegal discrimination because he was black. He was not in a position t© know whether the discrimination was merely "local" or "Metro" wide. He stated that he did not know whether Ms. Doherty was "manipulated" or whether she was §uilty of "manipulating" the process. 80. He added that he believed that .Ms. Doherty had discriminated against him, especially in her memorandum to the selection committee of November 19, 1990. 45 81. He was shown a memorandum from Ms. Doherty to the selection committee in connection with Mr. Daley, ......... who was then employed at the MTEDC as an OM14, and which is dated November 19, 1990 and is found as part of Exhibit 9, Tab 10: Mr. Daley is employed at the Metro Toronto East Detention Centre, as an 0M.14. It is my opinion that Mr. Daley is ready for a developmental assignment. He has achieved a degree and has excellent writing skills as well as a professional presentation. In recommending Mr. Daley for the Management Development Program, I would ask that the committee consider Mr. Daley for a position in community corrections or in a correctional centre as opposed to a jail. Mr. Daley's skills could be best utilized in a setting where knowledge of pro,rams is essential. 82. Mr. Lumley was asked if he did not regard the memorandum as being "complimentary." He answered that he did not think so because he did not believe the statements in the final paragraph were "positive." He did not regard the memorandum written by Ms. Doherty about Mr. Daley to be "positive enough." He added that she could have made a secret "negative phone call" to the committee about Mr. Daley. 46 83. Mr. Lumley was shown Ms. Williams' application for the development program position, dated October 26, 1990, which was addressed to Ms. Doherty, and in which she gave Ms. Doherty permission to access her personnel file. 84. Mr. Lumley was also shown Ms. Williams' r~sum~, which referred to letters of recomr~endation and activities. He was asked why he had not referred to letters of recommendation and activities, and replied tha~ he thought he would be given an opportunity to do so at the "in-house interview" at the MTEDC. 85. Reference was made to Ms~ Williams' PPR covering the period April 1989 to April 1990, which was prepared by Mr. Daley in conjunction with Mr. Ellis, found as part of Exhibit 9, Tab 11. Mr. Lumley had previously commented on his similar review prepared by Mr. Ellis, and explained the absence of "exceptional" ratings in any of the critical skill evaluations because of a statement said to have been made by Mr. Ellis: that he did not ~ive "exceptional" ratings. In the case of Ms. Williams, five of the eight ratings were shown to be "exceptional," and three "commendable." Mr. 47 Lumley stated that on the basis of Ms. Williams' PPR, he regarded Mr. Ellis' "credibility" as being "strained," and he believed that Mr. Ellis had "lied" to him. 86. Mr. Lumley regarded Mr. Stevens, Mr. Ellis, Mr. Small and Ms. Doherty as having been unfair to him. 87. His attention was drawn to MS. Doherty's memorandum of November 19, 1990, addressed to the selection committee, with respect to Ms. Williams, which is found at Exhibit 9, Tab 12: Although Ms. Williams is seen as an excellent Correctional Officer, it is felt that she needs time to mellow and mature before I could recommend her for the Management Development pro~ram. Ms. Williams should apply for some acting assignment~ at the OMi4 level before consideration (sic) to a more senior level. 88. Although he regarded Ms. Doherty's memorandum concerning Ms. Williams as being more positive than the one written with respect to himself, he still regarded it as being "tainted" because, on 48 the basis of the comments made, Ms. Williams should have been recommended for the program. 89. He was directed to Exhibit 9, Tab 4, being the "Management Development Program Screening Criteria" scoring sheet used by the Program Committee, which contains 17 categories: experience, work record, post-secondary education, communication, attendance, supervisory assessment, career objective, covering tether, program management, planning, decision-making, initiative, thinking/conceptual ability, analysis, innovation, workload management, interpersonal. The total marks available under the screening criteria were 19, with a maximum of two marks being given for supervisory assessment (in this case being that of Ms. Doherty) and a maximum of two marks for attendance. Mr. Lumley was directed to the number of applicants from MTEDC: Don Miket, who is white, and was a manager at the time, who scored 15.5 and was interviewed. 49 Dave Mackinnon, who is white and was a manager at the time, who received 15.5 and was interviewed. Lee Anne Cannon, who is white and was a manager at the time, who received 15 marks and was granted an interview. Paul Larocque, who was a correctional officer at the time at MTEDC, who received 7.5 marks and was not granted an interview. Mr. Larocque is white. Audrey Williams, who is black, received 10.5 marks and was not interviewed. Rose Buhagiar, who is white, was a manager, received 15 marks and was interviewed. Dorianne Challis, who is white, was a classification officer at the time. She received 14.5 marks and was interviewed. Don Carter, who was a manager at the time and is white, received 9 marks and was not granted an interview. 50 Frank Geswaldo, who was a manager aC the time, is white, received 11.5 marks and Was not granted an interview. Mr. Daley, above referred to, who received 9 marks.and was not granted an interview. Mr. Lumley, who received 6 marks and was not granted an interview. David Hill, who was a manager at the time, is white, received 15 marks, and was granted an interview. 90. He agreed that 12 persons from MTEDC applied for the position. It was put to him that of the 12 candidates, 9 were assessed by Mr. Small and all of them were the subject of a memorandum dated November 19, 1990 from Ms. Doherty. Those said to have been assessed by Mr. Small were: Mr. Larocque~ Ms. Williams, Ms. Buha~iarf Mr. Carter, Mr. Geswaldo, Mr. Daley, Mr. Hill, Mr. Mackinnon and Mr. Lumley. It was put to Mr. Lumley that, on the evidence, Mr. Small appeared to be a stricter assessor than .other supervisors. It was also put to him that of the group assessed by Mr. Small, only Mr. Mackinnon, Ms. Buha~iar and Mr. Hill received 51 interviews, and six applicants assessed by him did not. It was further put to Mr. Lumley that of Tthe six applicants assessed by Mr. Small who did not receive interviews, three were white and three were black, three were managers and three were not. Of the managers, two were white and one was bla~k. Of the correctional officers, two were black and one was white. Of the correctional officers assessed by Mr. Small, Ms. Williams was rated highest. Mr. Lumley did not directly respond to the statements put to him in the immediately above paragraph. 91. Mr. Lumley said that he regarded himself as being superior to Mr. Daley in some respects. When asked how well he knew Mr. Daley, he did not answer responsively, but said that in his "mind" Mr. Daley was "a little off key." In "hindsight," he thought that he was a superior candidate to Mr. Daley. 92. Mr. Lumley recalled that Ms. Doherty came to work at the MTEDC in either the Summer or early Fall of 1990, and that at the time she assessed him, on November 19, 1990, had had approximately six months to observe him. He only interacted with her 52 on a few occasions, without a significant amount of conversation. He estimated that verbal communication with her occurred on between three to five occasions, including times when they merely exchanged greetings. When pressed on this point, he acknowledged that he did not have a very clear recollection of the number of verbal interactions he had with Ms. Doherty beyond perfunctory greetings. 93. During the tim~ Ms. Doherty was at the institution, he had no real opportunity to demonstrate to her that he had program management skills. He had no idea whether she had an opportunity to assess program management skills of other employees during that period. 94. Between the time that Ms. Doherty came to the MTEDC and the time that he applied for the position, he did not have a great deal of opportunity to demonstrate to her that he had good oral communication skills. 95. In referring to the remaining eligibility criteria in the opportunity bulletin, he said that he did not have much opportunity to demonstrate to Ms. Doherty that he had those skills and abilities 53 between the time she arrived at the institution and the date he filed his application. 96. It was put to him that someone in management at the institution might have had a better opportunity to show Ms. Doherty that he/she had the skills and abilities listed in the eligibility criteria. He answered that he did not know if this was the case as he did not know how much contact she had with her managers during~the short time between her arrival at the institution and the postin~ of the opportunity bulletin. 97. He reiterated his position that when he saw Ms. Doherty's memorandum about himself, dated November 19, 1990, he formed the opinion that she was prejudiced a~ainst him and had a discriminatory attitude a~ainst him because he was black. 98. It was not just Ms. Doherty's memorandum of November 19, 1990 that led Mr. Lumley to.conclude that he was the subject of illegal discrimination. His conclusion was reinforced by Mr. Small's comments to him at their late May 1991 meeting: '~You're not going to like this," referrin~ to Ms. Doherty's memorandum. 54 99. Mr. Lumley believed that Mr. Smalt's poor evaluation of him had "probably" been ordered by any or all of Mr. Wallen, Mr. Morris and Ms. Doherty. He believed that the culture of racism in the Ministry was so pervasive that it could have affected Mr. Wallen's treatment of him. He referred to the fact that he could not think of any black person who had progressed to the top "ranks" of the Ministry. He believed that his treatment, with special reference to the second assessment prepared by Mr. Small, was symptomatic of the "workings" of the Ministry in reiation to its treatment of black people. 100. He regarded Ms. Doherty and Mr. Small as being merely "minor players" with links to persons in higher authority, such as Mr. Wallen. 101. He believed that some Ministry official, unknown to himself, had ordered a less than favourable assessment with respect to himself and other black candidates in order to avoid having to grant them interviews. 102. He did not think that Mr. Small decided on his own initiative to do what he did, and believed someone else was responsible. He did not believe that the 55 order came from Ms. Doherty, who he said was merely a "small player." 103. Mr. Lumley acknowledged that he would "probably" not have received an interview, regardless of which of the two evaluations prepared by Mr. Small were submitted to the Program Committee. 104. He agreed that Mr. Small had arrived at the MTEDC approximately three weeks before Ms. Doherty, and would not have had much more opportunity than she had to observe him. 105. He acknowledged that if there was an intention to prevent him from receiving an interview, it would only be necessary to have one negative evaluation from Mr. Small. He also agreed that if Mr. Small's first assessment would, because of its negative view of his management potential, achieve this purpose, there was no reason for him to prepare a second one. 106. He stated that he came into contact with Mr. Small on a "couple" of occasions during the course of Superintendent's parades, which was more than he did with Ms. Doherty. He estimated that he also 56 had contact with Mr. Small on a number of occasions (18 to 20), when Mr. Small came to the grievor's unit to see inmates, between the time of Mr. Small's arrival at MTEDC and November 19, 1990. Mr. Lumley believed that he would then have had an opportunity to display good oral communication skills. He could not recall whether he wrote any documents, such as "misconducts," during that period, so that Mr. Small would have some idea about his written communication skills. Nor could he recall whether he would have had an opportunity, during that time, to demonstrate program management skills for Mr. Small, and did not believe that that was the case. 107. He acknowledged that Mr. Small would not, on the basis of his own observations, be aware of his program management skills. 108. He did not bring any information to Mr. Small's attention concerning his work related program management skills because he had no opportunity to do so. 109. It was pointed out to Mr. Lumley that in his second, and more negative assessmemt, Mr. Small 57 indicated that "potential exists" with respect to program management, whereas, in his first assessment, there was no such prognosis. 110. He felt that Ms. Doherty was in no position to evaluate his potential to function in a management position. 111. He emphasized that without assistance from front line managers, Ms. Doherty and Mr. Small could not assess him in relation to the categories listed or with respect to his potential for becoming a manager. 112. On several occasions, in referring to the two evaluations conducted by Mr. Small, Mr. Lumley referred to one of them as having to be a "forgery." At the opening of the hearing on August '11, 1996, he was referred to his earlier statements to that effect when giving evidence on August 10, 1996, and was asked whether he still held that view~ He replied in the affirmative. When pressed on this point, he stated that he did not mean to imply that someone other than Mr. Small had prepared one of the assessments when he used the term "forgery°" He added that he had no 58 evidence to show that Mr. Small had not prepared both documents. However he believed that someone had instructed Mr. Small to prepare assessments of him in an unfavourable light. And that is what he meant when he used the term "forgery": that the assessments represented Mr. Small's following orders to achieve an illegal discriminatory purpose. 113. He also referred to the fact that the assessments prepared by supervisors, such as Mr. Small, were to be "shared with applicants." He stated that he had never been shown either document that he was entitled to until Mr. Curling's intervention, and only saw the first of the assessments completed by Mr. Small in late May of 1991, and only became aware of the second one after the hearing commenced. 114. He was referred to the first of Mr. Small's assessments, and th~ statement contained in it under the heading, decision-making: "good." He was asked whether this was a fair assessment of his decision-making capabilities, and replied that he could not agree or disagree that this was the case, because Mr. Small, on his own, had not yet 59 had sufficient contact with him to be able to make such an evaluation, although he personally believed that he did have good decision-making skills. 115. Mr. Lumtey was asked to comment on the statement in the first of the ·assessments made by Mr. Small, that he had "good relationships with colleagues," under the heading "Interpersonal." He stated that he did not "totally" agree with that assessment because he had had evaluations, in the past, indicating that he had good relations with colleagues, inmates and management, and felt that Mr. Small's evaluation was not as positive as it should have been. 116. His attention was drawn to the second assessment performed by Mr. Small on November 23, 1990, and it was noted that under the tenth item, "Interpersonal," Mr. Small stated: "good relationships with colleagues,", which was the same as his earlier assessment. Mr. Lumley agreed that the assessment was a good one, but stated it was not as good as it should have been. 60 117. He agreed that other than the contents of his r~sum~, there was no information concerning the extent of his interpersonal skills. He was asked to agree with the suggestion that other than his r~sum~ there was no additional information submitted by him relating to the other categories that Mr. Small had to assess. In agreeing to the submission, he stated that when he handed in his application, he expected that he would have an opportunity to fill in such details in the "in- house" "pre-interview.', 118. In agreeing that there was nothing in the opportunity bulletin to suggest that there would be a "pre-interview," Mr. Lumley stated that he was "new" to this kind of process. Evidence of Mr. Lumley in Re-Examination: 119. Mr. Lumley Stated that he had no idea that Mr. Small had been requested to evaluate him. He added that whenever performance appraisals had been performed with respect to him in the past, he had always been given the opportunity to comment on them before they were finalized. 61 120. He indicated that he was very upset when he read the second assessment performed by Mr. small, and referred particularly to the statement that he was "somewhat difficult to understand at times," which comment was not accurate. Many meanings crossed his mind when he read it. There were many persons at the institution with different accents: "Cockney, Jamaican, Asian." He was concerned that the statement in his assessment was intended to convey an impression that he did not speak proper English, which was not the case. He also wondered whether Mr. Small was commenting adversely about his Jamaican accent. 121. He stated that the first time he saw Mr. Small's second assessment was when it was shown to him by Mr. Whitaker, some time between the first and second days of hearing. · 122. He had never previously been assessed in the manner employed by Mr. Small: preparing two assessments on the same day which were significantly different, none of which were shown to him until after they-were used. 62 123. He acknowledged that anyone performing an assessment, as did Mr. Small, should have spoken to front-line supervision before completing the assessment form. 124. He also acknowledged that the periodic appraisals of him in his capacity as a correctional officer were for the purpose of assessing his abilities as a correctional officer, and that the matters of concern to be addressed in any assessment performed of applicants respondin~ to the opportunity bulletin involved different qualities. He acknowledged that an ordinary appraisal (PPR) was just an evaluation of a person's functioning in the position he then held, whereas the assessment to be used in connection with the competition was for a different purpose. Evidence Adduced on Behalf of the Employer Evidence of Steve Small 1. At the time he testified on November 27, 1995, Mr. Small had been with the Ministry of the Solicitor General and Correctional Services for 63 approximately 13 1/2 years, and was then the Supervisor of Administrative Operations with the Offender Classification and Transfer Section. In November of 1990, he was the Senior Assistant Superintendent (Corrections) at the MTEDC. 2. He holds an Honours Bachelor of Arts degree from the University of Western Ontario, with a major in Sociology, which he obtained in 1979. in 198t, he received a Master of Social Work degree from California State University. 3. As the Senior Assistant Superintenden~ (Corrections) at the MTEDC, he reported to Ms. Doherty, and his duties involved maintaining security at the institution in accordance with Ministry policies and procedures. He duties included the supervision of correctional and security staff. 4. Correctional staff, such as correctional officers, 'reported to shift supervisors and operations managers, who reported directly to him. Shift supervisors were responsible for all activities in the secured part of the institution. 64 Operations managers were responsible for particular inmate living units or other operational units in the institution. Referring to operational units, he said they included units such as Admitting and Discharge. 6. He was also responsible for coordinating institutional security requirements, treatment services and for acquiring security hardware and other materials to ensure the security of the institution. 7. He was responsible for ensuring that the number of correctional staff on duty was sufficient to meet the requirements of the institution. 8. At the relevant time, he was responsible for supervising ten shift supervisors and, approximately 16 operations managers. 9. At the relevant time there were approximately 150 correctional officers at the institution. 10. He was responsible for the overall operation of the institution in the absence of the 65 Superintendent and Deputy Superintendent, as well -as on a rotational on-call basis. 11. On occasion, he was responsible for assuming responsibility for services in the absence of the Senior Assistant Superintendent (Services). 12. The latter two duties noted were not part of his core duties. 13. He commenced working at MTEDC on June 18, 1990, a short time prior to Ms. Doherty's arrival there. 14. He became aware of the competition with which we are concerned shortly after it was posted in October of 1990. He was responsible for informing any staff that he came into contact with of the existence of the program, which he did on several occasions. 15. Some time in the morning, in late November, 1990 (he later agreed that it was on November. 23rd) he received a telephone call from Ms. Doherty's secretary advising him that Ms. Doherty wished to see him concerning the program. He attended at Ms. Doherty's office, and she informed him that a 66 number of institutional staff had applied for entry into the program, and that the institutional regional office had requested that assessments be completed with respect to each applicant. 16. He was instructed by Ms. Doherty to complete assessments, on a printed form, one copy of which was furnished to him by her, with respect to six or seven of the applicants, whose names were given to him by Ms. Doherty. 17. The form he was given at the meeting referred was the same as that found in Exhibit 9, Tab 2, previously identified by the grievor, except it had not yet been completed. 18. After proceeding to an office next to his own and making about 20 copies of the assessment form, he proceeded to his own office with the forms and the list of candidates to be assessed. At his office, he proceeded to "quickly" jot down his "initial" assessments of the candidates, b~in~ his first assessments, as in the case of Mr. Lumley. 67 19. For this purpose he used the assessment criteria set out in the opportunity bulletin, found at Tab 3 of Exhibit 9 (Appendix 1). 20. His initial assessment took him approximately five minutes per candidate, 21. After completing the first assessments of the candidates he was responsible for, including Mr. Lumley, he placed all of them, along with the opportunity bulletin, in a file folder which he deposited in a filing cabinet in his office. 22. His next involvement in the matter occurred at about 11:00 a.m., approximately 1 1/2 to 2 hours after he completed the initial assessments. He received a telephone call from Superintendent Doherty, who informed him that the assessments would directly impact on the candidates' entry into the program and that they should be completed by him on that day and then be brought to her office for forwarding to the Regional Office. 23. He said that before he received the telephone call from Superintendent Doherty (referred to in para. 22), he believed that the assessments were to be 68 maintained by him in his office and the results communicated to the Regional Office only if requested. 24. He stated that interviews frequently take place in the course of competitions within the Ministry, and sometimes, after the interviews, candidates' supervisors are asked for assessments with respect to them. He initially believed that this is what would happen in this case when he received the assessment form and list of candidates for assessment from Ms. Doherty. He said that his perceptions changed when he received the telephone call, above mentioned, from Ms. Doherty. Before receiving that call, he did not appreciate that his assessment would be used by the selection committee and would have a direct impact on the decision to grant an interview to an applicant. 25. As a result of the information received from Ms. Doherty in the above-noted telephone call, he now 'understood the "importance" of his assessment, and then set about to complete a more thorough and extensive second assessment of the candidates he was responsible for. He explained what he meant when he used the word "extensive" by saying that 69 he performed a file check of each of the candidate's performance, in addition to asking a number of shift supervisors and operations managers for their assessments. It was only after doing so, that he completed the second assessments and delivered them to Ms. Doherty's secretary. 26. He recalled furnishing Mr. Lumley with a copy of his first assessment "sometime later." He noted that the two assessments (the first found as part of Tab 2, Exhibit 9, and the second as part of Tab 7, Exhibit 9) were completed on the same day. 'He never furnished Mr. Lumley with his second assessment, and never told him that there were two assessments completed. He was asked why his assessment of the ~rievor changed between the first and second assessments. He replied that upon "furthsr reflection" and after completing a file check and a check with front line supervisors, and after spending more time in completing the assessments, "I reversed some of my earlier comments" on the basis of "more accurate assessments - statements." He "believed" that he then brought the second assessments to the 70 Super~ntendent's office for forwarding to the Regional Office. 28. He "believed candidates should be provided" with assessments completed with respect to them, and reaffirmed his earlier statement that he provided the first assessment to Mr. Lumley. He stated that he gave it to him after Mr. Lumley requested a meeting with him to discuss the development program and to review Mr. Small's assessment. Mr. Lumley was said to have requested this meeting a few days after he (Mr. Small) completed the assessment, and the meeting took place approximately a week to ten days after Mr. Lumley's request. 29. Mr. Small was asked why he gave Mr. Lumley the first and not the second assessment. His answer was only partly responsive. He replied that the meeting was held in his office, at which time Mr. Lumley asked for his assessment~. He said that he went to his filing cabinet and took out the first assessments that he had prepared and gave Mr. Lumley a copy of it, after making one using the copier in the office next to his. 71 30. The matter was pursued, as Mr. Small's answer was clearly not responsive, and he was asked essentially the same question again. He responded that at the time Mr. Lumley asked for the assessment, he (Mr. Small) went to his filing cabinet and checked the folder that contained the initial assessment, and ~ave Mr. Lumley a copy of it. He said that he "did not remember that the assessment may have changed from the initial [one]." He testified that at that time he had held a managerial position with the Ministry for approximately six years and had been involved in a number of competitions. 31. It was his understanding that employees could obtain copies of management documents pertaining to them upon making a request, except in certain limited circumstances, this not being one of them. 32. His working relationship with Mr. Lumley was always "positive and professional." He usually had some type of contact with Mr. Lumley when he (Mr. Lumtey) was on the day shift. He estimated that he had some contact with Mr. Lumley a "couple" of times a week. 72 33. His overall assessment of Mr. Lumley was that he was a "satisfactory" correctional officer, and he had had no problems or concerns about his ability to carry out his duties and responsibilities. 34. He was asked about Mr. Lumley's managerial potential, and stated that it was "difficult to ascertain" because he (Mr. Small) would not be "viewing him in that role." 35. Mr. Small added that there were a few "instances" that he could recall when he visited the unit where Mr. Lumley was assigned, and observed that he (Mr. Lumley) "lacked initiative." Mr. Small stated that this lack of initiative was demonstrated on one occasion when he arrived on the unit where Mr. Lumley was located and asked him a series of questions concerning the status of the unit. He regarded this as demonstrating a lack of initiative, because he expected Mr. Lumley to brief him without any prompting. Mr. Small acknowledged that he had rated Mr. Lumley as being "satisfactory" under "initiative" in his first assessment. This was changed to "lacks initiative" in the second one. 73 36. Mr. Small stated that he did not recall receiving any instructions from Ms. Doherty or from anyone else as to how to carry out the assessments of the candidates for the management development program. 37. When asked to respond to the grievor's allegations that he had been denied an interview because the Employer had discriminated against him on the basis of race or colour, Mr. Small stated that the allegations were "totally false," and that the issue of race never entered his mind when he assessed any of the candidates, nor was he told, before or after he performed the assessments, that race should be a factor. Evidence of Mr. Small in Cross-Examination 38. Mr. Small acknowledged that hs had had experience with other competitions, as a person providing assessment's to competition panels and while sitting on such panels. 39. He was asked if it was the usual practice for supervisors to provide assessments should the members of the board wish to consult with them 74 after conductin~ interviews. Mr. Small answered the question somewhat unresponsively, an~ stated: "Not specifically for a particular competition, but assessments on file could be referred to if requested by the competition board." He was asked whether the assessments that he was referrin~ to "physically" took the form of those found in Exhibit 9, Tabs 2 and 7. He said they did not resemble that format "exactly": "I have seen a number of different formats." He acknowledged that when sittin~ on a competition panel, the members could request assessments of candidates from supervisors. He was then asked if the reason for seeking supervisors' assessmemts was to ensure that the competition panel had access to relevant information about candidates "if they chose to lo0k for it." Mr. Small answered:"if they chose to So lookin~ for it." He stated that he had done so on some occasions when he was a member of a panel. 41. He acknowledged that it-was possible that information obtained from supervisors might impact 75 on the decision as to which candidate was chosen for a position. 42, He was asked if the reason for'retaining information, such as the assessments that he prepared with respect to the candidates for the competition, was to have "accurate information" to give to a competition panel. He responded that that was "one of the reasons." 43. He agreed that the information furnished to a competition panel about a candidate should be accurate. 44. He also stated that prior to the competition before us, he had performed assessments for competition panels on many occassions. 45. Me emphasized that he received no instructions as to how he was to carry out the assessments or the criteria to be used, and did not attempt to obtain instructions. Nor had he received any information from Ms. Doherty about any of the candidates on the list. .' 76 46. He was asked whether, between November 23, 1990 (when he completed the assessments) and the day Ms. Doherty showed him a faxed message showing the names of the successful candidates, he received any other documents concerning the candidates or the developmental assignment. He replied that there were none that he could recall. 47. He did not take notes of any events relating to the competition, such as his meeting with Mr. Lumley, or with any of the managers he said he spoke to about Mr. Lumley before completing the second assessment, or with Ms. Doherty. 48. He was asked whether he had made any notes after the events that he testified about ("between then and now"), and responded: "not that I can recall". 49. He was asked whether the copy of his first assessment that he gave Mr. Lumley represented the only time that he gave a copy of an assessment to Mr. Lumley in connection with the competition. He replied that he had not provided any other assessment to Mr. Lumley as far as he could recall. 77 50. He was asked whether the meeting that he testified about between himself and Mr. Lumley, when he gave Mr. Lumley a copy of the first assessment and a copy of Ms. Doherty's memorandum, was the only time he met with Mr. Lumley to discuss his "success or lack of success" in obtaining the assignment. He replied that it was the only one as far as he could recall. 51. He was asked whether he could recall giving Mr. Lumley any other document concerning his candidacy for the position. He replied that as far as he could recall he had not done so. 52. When he first met with Ms. Doherty, some time in the morning of November 23, 1990, and was instructed to complete the assessments with respect to certain candidates, he was not furnished with any time frame for doing so. 53. In November of 1990, shift supervisors rotated through the three shifts, and there were no permanent day shift supervisors. Shift supervisors in November of 1990 were: Robert Simpson, Ronald Meloche, David Hill, David Mackinnon, Rose Buhagiar and James MacDonald. 78 54. The operations managers were: Patricia Gill, Vince Daley, Donald Carter, Vernon Parrish, Daniel Stevens, Charles Casey and Brian Melville. He also referred to an acting manager, Robert Stewart. 55. He did not know if there were any acting shift supervisors at the time, but stated there might have been one or two. 56. He understood that the second assessment was to be completed before the end of the same day (November 23, 1990). 57. He was asked whether he recalled speaking to any. shift supervisors or operations managers concerning Mr. Lumley before completing the second assessment. He stated that he could remember speaking to some of them, but could not remember who they were or how many of them he spoke to, or, with any accuracy, what he said to them or what they told him. He 'also recalled speaking to shift supervisors and/or operations managers with respect to the other candidates before completing second assessments, but that is all he could remember. 79 58. After the competition was completed, he did not review the contents of his file with respect to the competition "on a regular basis.'" 59. He did not take the competition file that he kept in his office file cabinet with him when he left his position at the institution in November of 1992, although it was in existence at that time. He believed that his successor, on an acting basis, was Don Mikel. Mr. Small has not seen the file or the other initial assessments since he left the institution, except for the material that was put to him in the course of his examination. 60. He did not recall whether he furnished the other candidates whom he had assessed with copies of their initial assessments, or'with any assessments. 61. He now had no idea where the competition file that he maintained, that contained all of the initial assessments for all of the candidates, was located, or even if was still in existence. 62. He initially testified that the first assessments that he completed with respect to the other 80 candidates that he was responsible for could have been chanHed by him, as had Mr. Lumley's, when a second one was performed, but he could not say if this was the case. He then said that he could recall other assessments being chanHed by him, but could not recall for which candidates or what changes were made. 63. Mr. Blair wished to examine the file containinH the first assessments. Mr. Raymond spoke to Mr. Small in an endeavour to locate the file, but indicated that the likelihood of doing so was not great. In any event, neither the file nor its contents were located. 64. When he left his position at the institution in November of 1992, he made no effort to tell his supervisors or the person taking over from him that the first assessments were in a file, nor had he indicated to any of them that he had made two assessments with respect to the candidates that he was responsible for. 65. When he made his first assessments, he believed that they might be asked for by the competition panel. He acknowledged that it was important for 81 him to pass on accurate information.concerning the candidates, and that he knew this when he completed his first assessments. He also aHreed that it was just as important to have accurate information for use whenever that information was needed, either "at the end of the day or a few weeks later." 66. He knew when he completed the first assessments that the information miHht make a difference to whether an applicant was successful in obtaining an interview. 67. He was asked what information he relied upon in enterin~ the word "satisfactory" under the category "Planning" in his first assessment of Mr. Lumley. He stated that he relied on his observation made during his interactions with the grievor. He stated that, to him, "Planning" related to how the grievor completed the tasks assigned to him. 68. He was asked whether, prior to completing the second assessment, he actually examined documents that might bear on Mr. Lumley's performance. He 82 replied that he could not recall if he had done so. 69. He was asked what specific information he had received which caused him to change his assessment with respect to "Planning" to "lacks ability." He replied that it was information received from shift supervisors and operations managers. He was asked whether he had received specific information from shift supervisors and operations managers about Mr. Lumley's lack of ability in planning, and answered that he could~not recall if he had. 70. He was asked whether he asked shift supervisors and operations managers to give specific examples concerning Mr. Lumley's plannin9 ability, and he stated that he could not recall if he made such requests. He agreed that he could not recall anything about the "specifics" of the information that was given to him that caused him to change his mind between the first' and second assessments. He could not recall who he spoke to, and he could not recall what was said to him, except that whatever was said caused him to change his mind. 83 71. This case was unique inhis experience because the assessments were created for a specific purpose and were completed before being requested by the competition panel. 72. The request that he complete an assessment was not made directly to him by the competition panel, but came from Ms. Doherty. He regarded this as representing a difference in the way this competition was run compared to others that he was familiar with. 73. His attention was drawn to the fact that he had, in the first assessment, under "Decision making," commented: "good," which was more complimentary than the comment in the second assessment under the same heading: "satisfactory." He stated that the first assessment was based on his own experience. Re was asked why ~he change was effected. His first answer was that he could not recall why he changed the notation. He was pressed and asked whether the change was as a result of information received from the grievor's file or from "others." He repl.ied that he could not recall which "source" resulted in the change bein9 made. 84 74. He had never received any complaints concerning the grievor's decision-making skills up Go the time he completed his assessments. Between the first and the second assessments, he'received further information concerning the grievor's decision-making skills, but could not recall who gave it to him or what it was, except that it caused him to change the assessment. He repeated his assertion that he could not recall what information was received by him that caused him to change his assessment, but that he had requested and searched for information, and it was on that information (whatever it was) that he changed his mind. 75. He was asked what caused him to change his rating of "satisfactory" in the first assessment to "lacks initiative" in the second assessment with respect to the fourth item shown in the assessment , criteria ("Initiative"). He said that the change was based on "further reflection and input from managers and a file review." He Was asked what in the file review caused him to change his mind. He replied that he could not recall any document in existence at that time that would have indicated that Mr. Lumley lacked initiative. 85 76. In response to a question as to what files he searched for information to complete the second assessment, Mr. Small stated that he reviewed the "facts file," which he identified as information kept in the file cabinet in the shift supervisors' office that contained "personnel appraisals." He was asked what kind of documents were contained in the "facts file," and responded that it contained a "variety" of documents, such as "late reports," "occurrence reports," and "other reports from supervisors." He was asked if there were any negative reports about Mr. Lumley found in his search of the "facts file" when he filled out the second assessment. He responded that he could not recall whether there were any such "negative reports." He stated that the latest performance appraisals were usually found in the "facts file," but could not recall whether he examined that appraisal when he completed either his first or second assessments of Mr. Lumley. 77. Mr. Small was directed to his first assessment under the fifth heading: "Thinking/Conceptual Ability," where he stated: "good," and his second assessment where he stated: "irrational at times." He was asked to give examples of "irrationality" 86 referred to. He replied: "the ability to consider a concept and carry it out properly." He Was then asked "like what?" and responded that he could not recall a specific example. He stated that an example of irrationality might not necessarily amount to a serious problem if it was discerned in a correctional officer. He was then asked whether it was his own or someone else's experience with Mr. Lumley that led to the conclusion that he was irrational at times. Mr. Small responded that he could not recall whose experience he was referring to. He was then pressed to state what caused him to change his mind so as to alter "good" in the first assessment to "irrational at times" in the second one. He responded that he could not recall, but added that shift supervisors and others worked with Mr. Lumley more intensively and over a longer period of time than he did. 78. When he prepared his first assessment with respect to Mr. Lumley and rated him "satisfactory" under the sixth heading of ,Analysis/Synthesis," he believed that that assessment was accurate and was then aware that the information might be called for by the selection committee and have an effect on Mr. Lumley's being further assessed in the 87 process. It was pointed out to Mr. Small that in the afternoon, in the second assessment,'under the same heading, he stated: "unable to analyze situations thoroughly." He was asked how he viewed the terms "Analysis/Synthesis," and stated that analysis referred to the ability to analyze situations, and that synthesis meant the ability to take information and put it in proper order. He was asked what caused him to change his mind between the time he prepared the first and second assessments. He answered that he could not recall. He also stated that he did not know whether he sought input about Mr. Lumley from shift supervisors or operations managers who might have been in the same competition. He was asked whither he remembered discounting any assessment from a person who might be in competition with Mr. Lumley, but could not remember · whether he had done so. He acknowledged that he might have spoken to persons who were in direct competition with Mr. Lumley for input before completing the second assessment. 79. Mr. Small was directed to the ninth item in the assessment: "Communications." He stated that when 88 he first assessed Mr.-Lumley, he believed that he was "good, orally and in written form," but by the afternoon, when he a~ain assessed Mr. Lumley and rated him as being "difficult to understand at times," there was something that he had learned from someone or from some other source, but could not recall who or what it was. He thouHht that the reference to Mr. Lumley's being difficult to understand was based on problems he experienced with syntax, although he (Mr. Small) had personally not 'had such difficulty. He indicated that he had spoken to Mr. Lumley on a number of occasions prior to completing the first assessment, and it was not his experience that Mr. Lumley was difficult to understand in any way. 80. Mr. Small was directed to his first assessment under the seventh heading of "Innovation," where he stated that Mr. Lumley was "satisfactory," and to his second assessment where he stated that Mr. Lumley was a "follower, not a leader." He said that he could not recall whether he had been told that this was the case or whether the chan~e resulted from a reconsideration based on his own experience. He amplified his evidence by statinH that he spoke to shift supervisors and operating 89 managers on duty, but took no notes of his meetings for that purpose, nor did he record or ..... recall who he spoke to. He indicated that he was looking for a "majority" response from those he interviewed. 81. Mr. Small indicated that he could not recall whether he ever saw Exhibit 10, being the Performance, Planning and Review form with respect to the grievor covering the period January 30, 1987 to January 30, 1988. 82. Contrary to his earlier evidence, he did not recall whether he gave Ms. Doherty's memorandum of November 19, 1990, found in Tab 1 of Exhibit 9, to Mr. Lumley at the meeting which he said took place in December of 1990. He believes that he first saw that memorandum in discussions with counsel in preparation for the hearing. 83. He was informed of Mr. Lumley's earlier evidence that he had attempted to meet with him on several occasions in December of 1990 and January of 1991. He was also informed of Mr. Curling's intercession on behalf of Mr. Lumley. It was put to Mr. Small that the meetin~ that he referred to did not 90 actually take place until May of 1991, when he gave Mr. Lumley a copy of his first assessment and a copy of Ms. Doherty's memorandum of November 19, 1991. He denied that this was the case and maintained that he had met with Mr. Lumley in December of 1990, as he testified earlier. 84. Mr. Small was asked how many meetings he had with Mr. Lumley with respect to the development assignment. He insisted that there was only one such meeting, b~ing the one held in his office a week or ten days after he made the assessment, at which time he gave a copy of the first assessment to Mr. Lumley. 85. Mr. Small was then shown Exhibit 5, being the letter from J. A. Wallen, Regional Personnel Administrator, Metro Region, dated March 6, 1991, addressed to Mr. Curlin§, the MPP representing Scarborough North, the contents of which are set out at p. 8, above. He then acknowledged having previouSly seen Exhibit 5. It was put to him that it had been brought to his attention by Mr. Walten. Mr. Small stated that he could not. recall if that was the case, but did recall that it came to his attention as a result of discussions with Employer's 91 counsel. He was asked whether he was aware that Mr. Wallen had communications with Mr. Curling prior to his (Mr. Small's) discussions with counsel, and replied that this was not the case. It was put to Mr. Small that between November of 1990 and the end of May of 1991, Mr. Wallen approached him to inform him that 'Mr. Lumley had concerns that he wished to discuss with him (Mr. Small). Mr. Small denied that this had happened. 86. Mr. Small was then asked to direct his mind to the provisions of.the two assessments that he made of Mr. Lumley. He reiterated that the ninth item, where he indicated that the grievor had good oral and written communication skills was based on his own experience. He had reviewed Mr. Lumley's written communications and spoken to him on a number of occassions, which led to his positive conclusion recorded in the first assessment. He was then asked what caused him to change his assessment to: "somewhat difficult to understand at times," and whose assessment led to the change. He replied, again, that he could not recall who gave him this information. He said it could have been as a result of what he heard from some operations managers, and it might have been 92 only one person; in any event, he could not recall the names of the persons he spoke to or what they ....... said to him. He indicated that, based on his own experience, the first assessment with respect to oral and written communication skills would stand. He was asked whether he disagreed with the second assessment relating to oral communications, and answered that he did not: "share that opinion." 87. When again asked if he remembered any of the reasons given to him by persons he spoke to prior to carrying out the second assessment, he stated that he had no recollection. 88. He was again asked if he had "explored" with the shift supervisors or operations managers what was meant by "difficult to understand." He replied that he could not remember if he had done so. 89. He agreed with the suggestion made to him that the second assessment had been done. in some haste. He also agreed that he did not have much time to go into a "lot of detail" with the shift supervisors and operations managersLwith respect to each of the areas that he covered. 93 90. He was asked whether he remembered whether he had explored each of the categories in the assessment form with shift supervisors or operations managers and replied that he could not remember whether this was the case. 91. He acknowledged that his performing a first assessment and then proceeding to perform a second one was "unusual." 92. It was put to Mr. Small, as he could not recall the reasons that the shift supervisors and operations managers ~ave him concerning their opinion that Mr. Lumley was sometimes difficult to understand at times, that he could not rule out race as a factor. His answer was not entirely responsive. He indicated that he did not consider any other "view," and that the "actions" taken by him were based on his "view" of the matter. We believe that he intended to say that he never considered the possibility that-the information he received from shift supervisors and managers about Mr. Lumley's bein~ difficult to understand at times was based on Mr. Lumley's race. He assumed that they were referring to matters of syntax and not to Mr. Lumley's Jamaican accent. 94 93. Neither Ms. Doherty nor any persons involved' in the process spoke to him about his assessment of candidates, and he had no idea how his assessments would be translated into points in the scoring process. 94. He did not give the first assessments to Ms. Doherty or anyone in her office. 95. It was not possible that he only spoke to one person prior to preparing his second .assessment. He explained his better recollections of the details of the events leading up to his preparing the second assessment, compared to his poor recollection of the details of his actual performance of the second assessment, on the basis that he undertook to complete the first assessment by himself, whereas, in questioning people prior to preparing this second assessment, he spoke to "many, many people." This, he said, explained why he could not recall the names of those persons, or, with any precision, what they told him. Pressed as to the number of persons he spoke to, and in response to the question: "Was it two?" he stated that he could not remember the specific number of people he spoke to. When pressed 95 further, he said it could have been less than five. When it was suggested to him that five did not represent "many, many people," he responded: "To me it does." 96. He denied the suggestion that he intentionally contrived to hand in a "worse" assessment in order to "discredit" Mr. Lumley, when he (Mr. Small) realized that the assessment that he had been asked to prepare "would count." 97. He also denied the suggestion made to him that he personally felt that Mr. Lumley should not receive the development assignment because of his race. 98. He also denied the suggestion made to him that when he referred to Mr. Lumley as being sometimes difficult to understand, he was making reference tO matters of "accent and race." 99. He was asked whether he was saying that he allowed his own experience with respect to Mr. Lumley to be overruled by statements made by other managers, whose names he could not recall but who might have "better reasons" for their assessments than he had. He responded in the negative. 96 100. He denied that he only performed a second assessment with respect to Mr. Lumley, and '~ '~ testified that he prepared a second assessment for all candidates assigned to him for assessment. 101. In re-examination, Mr. Small stated that Mr. Blair's suggestion that he (Mr. Small) wished to discredit Mr. Lumley was "utter nonsense," and said he was "very offended" by the "implication." Evidence of Diane Helen Doherty Ms. Doherty testified as follows: 1. She was, at the time she testified, the Superintendent of the Hamilton-Wentworth Detention Centre, and had been so since September of 1994. · 2. Prior to September of 1994, she was the Superintendent of the MTEDC, and had started in that position in August of 1990. Prior to August of 1990, she was the Deputy Superintendent of the Mimico Detention Centre~ 97 3. She was responsible for 289 employees and up to 500 inmates at the MTEDC, and she likened her duties to those of a chief executive officer. 4. In November of 1990, Paul Mulhern was the Deputy Superintendent of the MTEDC, and Mr. Small was one of two Assistant Superintendents who reported to Mr. Mulhern. The other Senior Assistant Superintendent was Alex Mitchel, who was of equal rank with Mr. Small. On an equal level with the Senior Assistant Superintendents was the Business Administrator, Elaine Fear-Thompson. Don Mikel was the Programs Administrator. 5. Under Mr. Small, in the corrections group, were middle managers now classified as OM16s. Under the middle managers were 14 0M14s. The middle managers were lieutenants, and the OM14s were sergeants. Under the 0M14s were correctional officers. 6. Ms. Doherty recalled receiving a memorandum addressed to Superintendents/Area Managers, 'Metro Region, from D.A. Parker, Regional Director, Metro Region, on the subject of Metro Region Management Development Program, dated October 1, 1990, which is found at Tab 3 of Exhibit 9: 98 As you are aware, one of the agenda items at our r~gional management meeting in May of this year concerned the activation of a management development program. The recommendations of the study groups were subsequently reviewed by a regional Management.Development Committee consisting of: 2 Regional Managers 2 Superintendents 2 Area Managers Regional Personnel Administrator Regional Training Advisor. This committee has developed a program outline which I have endorsed, and which I am now distributing to you in order that you will have a full understanding of the objective and features of the program.. Also enclosed please find an Opportunity Bulletin which I would ask you to Dost on your notice boards on the specified posting date. As you will note, applications to this program are to be submitted directly to you. You are then requested to forward these applications to this office, along with the following documents: 1. The applicant's most recent P.P.R.. 2. Copies of the applicant's attendance record for the past two year period. 3. A covering letter signed by you containing your comprehensive evaluation of the applicant's skills and abilities under the ten (10) "Assessment Criteria" factors on page 4 of the enclosed program outline. A copy of this evaluation should be provided to the applicant. Should you have any questions regarding any of the above, please contact a Regional Manager in this office. Your assistance in helping to make this management development program a success is sincerely appreciated. 99 Ms. Doherty identified DiA. Parker as her superior.' In May of 1990 she was still at the Mimico Detention Centre, and was not certain whether she was at the regional management meeting held that month referred to in the above memorandum. She also was uncertain if she had seen minutes of the May meeting, although she believed that she did. 7. She identified area managers as being managers supervising persons at probation and parole offices. 8. In May of 1990, when she was the Deputy Superintendent at the Mimico Correctional Centre, she could have attended monthly meetings of superintendents if her Superintendent was absent. If he was available, he usually attended. 9. She did not know who was on the Management Development Committee referred to in the second sentence of the memorandum of October 1, 1990, except for Mr. Wallen. 100 10. Her understanding of the management development program was that it was to give.employees who showed promise to be managers an opportunity to experience acting in a management role and to learn new skills. In addition, it was to give those employees an opportunity to learn, and to allow senior management an opportunity to observe them in a managerial role or, in the case of existing managers, an opportunity to function in a different managerial role. Appointment to the program was not a promise of promotion, but was just an opportunity "to develop the people." In some cases, the example given bein9 operations managers, who might be furnished with an opportunity to work in the same job but in a different institution. This was intended to ~ive them a different experience than they would receive in their own institution. 11. She understood that she was to post the opportunity bulletin in accordance with the. requirements stated in the memorandum of October 1, 1990 (see Tab 3, Exhibit 9). After posting, interested applicants were to write a letter of application addressed to her. Once she received an application, she was required to forward it to the 101 Regional Office, with a copy of an applicant's most recent performance appraisal, attendance record for the last two years, and a covering letter from herself evaluating each applicant in terms of their suitability for the program, as stated in Mr. Parkers memorandum of October 1, 1990. Upon receiving the application letters, Ms. Doherty asked each applicant's "manager," Mr. Small, in the case of the grievor, to complete an assessment with respect to the ten criteria which were set out in a document, entitled "Metro Region Management Development Program," dated September 25, 1990, which was enclosed with the said memorandum, which document is set out in Tab 3 of Exhibit 9. The criteria are set out at pa~es 4 and 5 of that document: Assessment Criteria (Skills and Abilities) (for comment by supervisors, to be shared with applicants) 1. ProGram Management - Successfully implements assigned tasks, projects and/or programs; makes adjustments where necessary; meets deadlines and delivers results. 2. Planning - Develops sound action plans, sets realistic objectives. 3. Decision Makinq 102 - Makes sound and timely decisions based on available information, establishes realistic priorities. - Recognizes when to seek higher authority. 4. Initiative - Takes initiative whenever required. - Searches out challenging opportunities to test skills and abilities. Shows desire to excel. 5. Thinking/Conceptual Ability - Assimilates and integrates relevant information into the work process. - Understands and develops sound concepts. - Generates useful ideas and fresh solutions to problems. 6. Analysis/Synthesis - Analyzes problems and issues effectively. - Puts together diverse ideas or information from a variety of sources. 7. Innovation Uses creative approaches to solve problems. - Develops useful and original alternatives. 8. Workload Management - Sustains quality of performance over periods of continuing pressure. - Responds to unexpected situations without losing sense of direction. 103 - Demonstrates capacity and willingness to cope with heavy ......... workload demands. - Is enthusiastic, not easily discouraged. 9. Communications - Presents ideas and information clearly both verbally and in writihg~ 10. Interpersonal - Maintains effective working relationships with peers, subordinates, supervisor(s) and clients. - Maintains composure when handling difficult and/or unexpected situations. - Displays sensitivity when dealing with issues. At page 3 of the document from which the above quotation was taken, one of the eligibility criteria provides: "supervisor's assessment of applicant's skills and abilities as outlined in the following section." There then follows the above quoted assessment criteria. 12. Ms. Doherty stated that applicant's "managers" were given a form to complete with respect to each applicant and to return the completed form to her. She identified the form as being identical to the one found at Tab 2 of Exhibit 9, without the supervisor's written comments. She did not say 104 that the persons responsible for completin9 the assessments were given any other instructions as to how to perform them, or whether they were directed to the further instructions fOllowing each of the stated criteria. 13. Any employee, including managers, could apply for acceptance into the pro~ram, and it was not restricted to correctional officers. 14. Ms. Doherty was asked to state what happened to the grievor's application "from beginnin~ to end." 15. She stated the the process, insofar as the 9rievor was concerned, commenced with his letter of application, dated October 29, 1990, which was addressed to Mr. Morris, instead of to herself, as required by the instructions contained in the opportunity butlezin, although she believed that Mr. Lumley delivered it to her office, and she noted the date stamp shoWing that the application was received az~ the MTEDC on the day it was dated. 16. Mr. Lumley's application was then sent to Mr. Small for the purpose of having Mr. Small, who was "responsible" for. the grievor, complete an assessment form. 105 17. After she received the assessment form with respect to Mr. Lumley from Mr. Small, she asked herrsecretary to "pull" the personnel files for the approximately 10 applicants from the MTEDC. She stated that she "felt~'' that she had to obtain as much information as possible about the applicants. 18. She then read all of the applications and covering letters. We do not ~now what she meant by covering letters, although s~e may have meant the assessments that were completed, such as that performed by Mr. Small. She stated that she was positive that she read the assessments before completing her own memoranda of November 19, 1990, ~ddressed to the selection committee with respect to eac~ candidate. 19. She then "re-read" ~he personnel files, and examined information relating, to each candidate's attendance r~eord. 20. She then spoke to managers at the institution'for the purpose of obtainin~ their-"input" about the candidates. However, she could not recall which managers she spoke 5o, when she'spoke to them or exactly what they reported to her. She made no notes 106 of her conversations and made no attempt to ascertain which managers she spoke to about the grlevor. 21. She recalled the following managers as having responded to the posting: Vince Daley (OM14); Rose Buhagiar (OM14); Don Mikel (Programs Administrator); Dave Mackinnon, whom she believed was an OM16 at the time; and Dave Hill (OM14). 22. She spoke to Don Mikel to obtain his verbal assessment about two candidates in the bargaining unit whom he supervised: Lee-Anne Cannon and Dorianne Challis. 23. She believes that she spoke to all senior managers to obtain their input about all of the candidates before she prepared her memoranda of assessment with respect to the candidates. It did not matter to her whether a manager supervised a candidate. Her only interest was whether the manager could furnish relevant information about a candidate. She identified her use of the term "senior managers" as referring 'to: Deputy Superintendent,-Senior Assistant Superintendents, Programs Administrator and Business Manager. She also spoke to operations managers and shift supervisors, but could not recall which ones. She said that they would have been the ones on duty during the day shift. 107 24. In addition to .the above information, she relied on her own observations. She then proceeded to write a memorandum with respect to each candidate. 25. She then obtained the PPR's and the attendance information for the last two years for each of the applicants, and requested her secretary to send all of the materials required (PPR's, attendance records, supervisors' assesments, and her memoranda of assessment) to the selection committee at the Regional Office. 26. She was asked what her personal assessment of the grievor was prior to her speaking to other people about him after he applied for the management development program. She responded that she regarded him to be a "mediocre" employee who "showed very little enthusiasm for his work," and who had not demonstrated any "enthusiasm" for the variety of activities that took place at the institution, such as being on the United Way committee or on other committees related to charitable works, or on committees relating to a variety of functions carried out at the institution. She said that there were-many opportunities at the institution where staff would have an opportunity to "give to others," but the grievor~did not appear to 108 have availed himself of them. She regarded this as being a negative factor that would count'against him ....... when it.came to assessing his potential for working in a management position. 27. She also found the grievor to be wanting in management potential, because he had not, as other employees who were interested in advancing into management positions did, inform her that he wished to do so, at the same time enquiring about any opportunities that were available where they could "learn and develop." 28. She also referred to situations where CO's have to deal with problems with inmates that arise in their units. In such cases CO's are required to write-up "misconducts" relating to the incidents. She would have.concerns where a CO wrote-up too many or too few "misconducts," and she regarded either of these situations as representing evidenc~ of a possible problem that a CO was experiencing in managing inmates. She stated that where a CO was writing up "too few" misconducts, this could mean that he/she was "avoiding issues." She wondered about Mr. Lumley because he completed relatively few incident reports, although she apparently never pursued the matter with him or with his supervisors in order to verify her suspicion. 109' 29. It was her practice to conduct daily rounds at the institution. As part of this process she would stop and speak to every employee and she usually asked every CO how their unit was operating. CO's would then be expected to volunteer information to her about their concerns as they related to particular inmates. Or to make positive comments about particular inmates. She drew a negative inference about the grievor because he "very seldom" had anything to say to her about the operation of his unit, although she never mentioned her concern to him or to his supervisors or endeavoured to verify her concerns about him in this regard. 30. Her senior managers were said to have "generally" expressed surprise when they'were informed that 'Mr. Lumley had applied for acceptance into the management development program. They were said to have informed her that Mr. Lumley had not given them any basis for believing that hQ. was interested in or capable of · assuming a management role: "no indicators of exceptional performance," nor had he spoken to them about his interest in "development opportunities." 31. She said that after having spoken to managers about the grievor in relation to his skills and abilities, she concluded that there was no evidence that would cause 110 her to amend her own assessment. She added that because she had only been at the institution since August of 1990, and because she wished to be fair to all of the candidates, she undertook to first "listen carefully to the input of all managers" so as to have a "complete basis" for reducing her assessment to writing for submission to the selection committee. 32. She then referred to her memorandum of November 19, 1990, with respect to Mr. Lumley that she submitted to the selection committee~ She said that her statement in paragraph two: "I have not seen any indication from Mr. Lumley that he. has sufficiently achieved management capabilities or even potential for leadership," was based on the fact that as a correctional officer~ he would have little opportunity to demonstrate "managerial skills." She added that there are other ways that a CO could demonstrate that he/she had management potential, and sh@ again referred to a CO becoming a member of one of the committees that exist within the institution, including involvement in charitable undertakings such as the United Way, Federated Health, Corrections Against Drugs, volunteer work with underprivileged children to assist them to develop an interest in "positive" activities and to avoid succumbing to negative peer pressure. She also 11t referred to such activities as were conducted by 41 Division in Scarborough in organizing sporting events and accompanying children to "Blue Jays" games. She drew a negative inference as a result of the absence of any indication that the grievor had engaged in any of the above or similar undertakings. 33. She understood that it was Mr. Small's second assessment, found as part of Exhibit 9, Tab 7, that was forwarded to the selection committee. She never knew that there had been any other assessments prepared by ,him. 34. Ms. Doherty was asked a number of questions relating to her recollection of the events leading up to Mr. Small completing his assessments of the candidates: (a) She said that she announced to "our" staff (the day of the announcement not being specified) that they would be requested to complete assessment forms with respect to certain applicants. (b) Her secretary then forwarded forms to each supervisor who was to Derform assessments together with a list of the applicants.they were to assess. 112 (C) She had no recollection of having any one-on-one discussion with Mr. Small on November 23, 1990, or at any other time, following which he prepared a second asessment of the grievor. 35. She was referred to her memorandum of November 19, 1990 to the selection committee with respect to Mr. Daley, which recommended him for the management development program (Tab 10, Exhibit 9). She was asked the reason for recommending ~hat he be included in the program. She stated that he was an OM14 and had a degree "on top of that" and had previous developmental experience at the Mimico Correctional Centre. 36. She was referred to her memorandum of November 19, 1990 to the selection committee with respect to Ms. Williams, which described her as "an excellent correctional officer" but which did not recommend her for the Drogram until she had "some acting assignments at the OM 14 level (Exhibit 9, Tab 13)." 37. She was also referred to her memorandum of November 19, 1990 to the selection committee with respect to Ms. Cannon, the temporary absence coordinator at the time, whom she recommended for the program (Exhibit 9, Tab 13) noting: 113 During that time [11 years] Ms. Cannon has gained experience in classification, T.A.P., staff training and other areas. In my opinion, Ms Cannon demonstrates an enthusiasm for her job and a real commitment to any task she puts her mind to. For example, Ms Cannon was the institutional chairperson of the United Way Committee this year and ran an excellent campaign. She was well organized and encouraged all committee members to contribute . similarly in order to meet our goal .... 38. She was also referred to her memorandum of November 19, 1990 to the selection committee with respect to Rose Buhagiar (Exhibit 9, Tab 14): Ms. Buhagiar is one of the newest managers at Metro Troronto East Detention Centre. In my opinion, however [she] is one of the most competent in the OM category and certainly one with the most potential. Ms Buhagiar approaches her duties with a strong sense of responsibility and with maturity that is often lacking in other managers more senior. Ms Buhagiar is dependable and alway looks fo~ the best way to solve problems. She goes the extra mile. I highly recommend [her] for this program. 39. She was also referred to her memorandum of November 19, 1990 to the selection committee with respect to Don Mikei (Exhibit 12): Mr. Mikel came to [MTEDC] well qualified for the position of Social Programs Administrator. He communized [sic] employment at [MTEDC] in 1989. Mr. Mikel's experience to date with the Ministry ... has.been in an institutional setting. In order to allow [him] to develop wholistically, I 114 would recommend that he be considered for a developmental assignment in community corrections in the future. I am presently working with Mr. Mikel to enhance his organizational and supervisory skills [sic] therefore I would recommend to the committee that Mr. Mikel not be moved for at least one (1) year. I do feel that Mr. Mikel has potential and should be groomed but not too quickly. 40. Ms. Doherty strenuously denied that race or colour had been a factor in the assessment of any candidate. 41. She referred to the criteria she examined in assessing candidates before completing her memoranda of November 19, 1990: the right education~ experience, attitude and what the employee "wished" in terms of his/her "own goals." She said that she endeavoured to identify what opportunities would allow a candidate to gain the most benefit. In her view, good oral and written communication skills were necessary because "we concentrate on written communications." She did not indicate that she had evaluated "applicant's skills and abilities under the ten (10) "Assessment Criteria" factors on page 4 of the ... program outline" above set out, except as this would have been done upon a review of the supervisor's assessments, such as those completed by Mr. Small, which she was certain that she reviewed before setting out her "comprehensive evaluation" in her memoranda. 115 42. She was also referred to her memorandum of November 19, 1990 to the selection committee with respect to Dave Mackinnon, who was an OM16 at the time, which was favourable and which recommended him for selection and suggested that he be placed as an assistant Superintendent (Tabl5, Exhibit 9). 43. She was referred to Paul Larocque, who Was a correctional officer at the time. She could not recall if he had applied for the program, but indicated that if he had done so, she would not have recommended his selection. In fact'he did apply. 44. Ms. Doherty has been in corrections since 1971, and has been in a managerial position since 1980. She has seen "thousands" of performance appraisals since she became a member of management. She was directed to the grievor's earlier performance appraisal (Exhibit I0) and was asked to comment on it based on her experience as a manager. She stated that nothing "jumped out at" her, and her response to it was that it was "blah." She would take, from the assessment, that the grievor was "well suited" to what he was doing, and there was no indication of his having any goals to become a manager. Referring to pages 4 and 5 of the performance appraisal, she stated that it did not show 116 that Mr. Lumley had any interest in pursuing a development opportunity or takinH specific courses that would assist him in becoming a manager. 45. When she completed her assessment of Mr. Lumley she had no idea how the candidates would be scored or selected by the selection committee. 46. She was directed to the letter to Mr. Lumley from Mr. Wallen, dated November 30, 1990, informing him that he was unsuccessful in his application for the management development program (see Tab 7, Exhibit 9, p. 1). She stated that she had no idea how this letter came to be sent. The letter is addressed care of the "Superintendent - Toronto East D.C." She assumed that the letter came to her office and was opened by her secretary and date stamped (there is no date stamp on the letter). She assumed that her secretary called the ~rievor to pick up and siHn for the letter. 47. She stated that shortly after the Hrievor received the letter from Mr. Wallen, he "barged in" to her office one eveninH when .she was working late and started to yell at her. He is supposed to have said that all the managers in the Ministry were 117 racists, although she could not recall the exact words used, but she concluded that Mr. L6mley's view was based on the fact that he had not received the management development, assignment. 48. She said that she told Mr. Lumley that what he was saying was "ridiculous," and informed him that "we are not racists,~ and that it did not matter to her what colour a person was.. She told Mr. Lumley that persons must "earn it to get ahead," and it did not matter if they were "green." She then asked him to leave her office. The incident recounted by Ms. Doherty was said to have taken place after November 30, 1990, but she did not know how long after that date it occurred, and she did not prepare any written record of it. 49. She did not recall whether she had seen Exhibit 4, being a document addressed to Ms. Doherty and Mr. Small, prepared by Mr. Lumley, dated June 5, 1991 and titled "Complaints Against the Ministry of Correctional Services," prior to the commencement of the hearing. Exhibit 4 is as follows: 1. I am charging that there was discrimination - very probably racially motivated, in the recruitment and 118 selection of candidates for the Management Development Program. 2. I am charging that you abused the power vested in your office and carried out acts of irregularities while recruiting and submitting names of candidates for the management development program. 3. I am charging that you violated the Ministry and the Public Service Guidelines and submitted prejudicial statements about me to the Selection Committee, Metro Region, Management Development Program. 4. I am charging that you showed no interest in my application; you did not provide me with even the courtesy of an interview.to find out what contributions I could have made to the Ministry. (Incidentally at the time of the competition I was studying personnel management at York University and was learning how I should have been treated.) 5. I am Charging that you the Superintendent and the Senior Assistant Superintendent (Corrections) have set your own agenda, to derail some of the changes that the present and immediate past governments have been trying to implement. 6. I am charging that you have created unofficial file/s) on me without my knowledge or consent contrary to the Guidelines of the Public Service. 7. I am charging that there have been too many instances of differential treatment since you and the Senior Assistant Superintendent (Corrections) assumed your posts here at the Toronto East Detention Centre. 50. She had received a telephone call from Mr. Wallen to advise her that Mr. Curling had communicated 119 with him about Mr. Lumley's complaints about the selection process. Afte~ that conversatiOn with Mr. Wallen she was of the view that he should answer questions concerning the competition because she was not part of the selection committee. Although she forwarded.the information about candidates, above referred to, to the committee, she had nothing to do with the selection process. 51. She was asked to comment on the allegations contained in Exhibit 4, which she did with reference to the paragraph numbers: Paragraph 1: she said this allegation was "ridiculous" because the selection committee had no knowledge of the race of a candidate and therefore its members could not have been "racially motivated." She regarded the allegation in paragraph 1 as being "totally false." Paragraph 2: she stated that she had no role to play in recruiting; all'she did was post the opportunity bulletin. She did not decide on the process to be followed. She did not 120 choose the persons to be referred to the selection committee. Candidates were self- selected. She added that the allegation came from a person (the grievor) who did not understand the process. Paragraph 3: She merely submitted facts and opinions based on facts. In referring to the remainder of Exhibit 4, she stated that it ~epresented an "irrational response" by a person who did not understand the process. She regarded the statements as "slanderous" (sic), and found them to be "objectionable." 52. She regarded the selection .process to be somewhat complicated because the members of the selection committee made every effort to be fair and decided not to proceed using "normal" recruiting processes. Mr. Lumley did not seem to understand that it was not her role to interview candidates; it was the selection committee that determined which candidates would he interviewed. 121 53. She believed that the selection Committee had "honourable" motives and had behaved in a fair manner. She attributed any misunderstandings with respect to the selection process to Mr. Lumley's "confusion" about the terms of the opportunity bulletin, including how the competition was to be administered and the requirements imposed on applicants. 54. She felt that the selection committee, "perhaps," should have established further avenues for explanation of its processes to candidates, but that it was unfair for a candidate to ask her about things she knew nothing about. Cross-examination of Ms. Doherty: 55. Ms. Doherty was asked to review her actions with her "senior management team" when she became aware, in October of 1990, that~ there would be a competition. She replied that she posted the competition on the bulletin boards. In the course of reading her mail, she would copy all items'that concerned the competition to senior management so that they would be aware of developments and could 122 answer questions asked of them by staff. She did not know if any mail was copied to senior' staff, but she said that this was normally done. 56. Subsequently, the date not being identified, at a morning meeting with senior management, she referred to the competition. She did not elaborate in her evidence on what was said at the meeting. 57. Morning meetings were held regularly, primarily to discuss what was taking place at the institution at the time. She added that she did not discuss specifics of the management development program at any morning meeting. 58. After the applications were received in her office, her secretary "pulled" the file of every applicant, brought them to Ms. Doherty, who then read the contents "thoroughly." She also read the candidates' attendance records that were pulled by her secretary at the same time. She did not identify the dates of these events~ 59. She did not discuss the competition with anyone, except for a brief reference to it at the morning 123 meeting above referred to, prior to her receiving the applications from candidates~ 60. Later, she had some discussions with her management team, especially "with Deputy Superintendent Mulhern and with Senior Assistant Superintendent Social Programs Mikel, who had been there longer than her and knew the staff better". She discussed all candidates with Mr. Mulhern and with Mr. Mikel. She added that she discussed the candidates with all senior staff, and that she spoke to a number of operations managers and shift supervisors about individual candidates when she was on rounds. She noted that they had been at the institution and had worked with the candidates.for a longer period of time than she had. She regarded it as being very important to speak to those persons, and as "doubly" important to speak to those persons because the performance appraisals that she had seen were "very old" and were not "kept up to date." She said that she relied on the facts file, personnel file, and input of managers. 61. She was asked about the.number of inmate reports filed by Mr. Lumley between August and November, 1990, and replied there were very few, but she 124 could not recall how many. She was asked whether she had drawn any conclusions as a result of the number of inmate reports filed by Mr. Lumley and stated that: "nothing jumped out at me." She then said that she could not now recall if she had seen any inmate reports prepared by Mr. Lumley. 62. She was asked whether she had a discussion(s) with Mr. Small concerning the grievor as a candidate between the time she made senior management aware of the competition and her forwarding the above described material to the selection committee, including supervisors' assessment reports and her memoranda of November 19, 1990 with respect to each candidate. She stated that she could not recall any such discussion(s). She was asked whether it was her evidence that such discussion(s) took place, and she replied that she was not making such an assertion. She stated that she had reminded "the senior staff of the competition at the morning meeting" referred to, and asked for staff input, but she did not recall meeting separately with Mr. Small. She was reminded of her earlier evidence when she said she discussed every candidate with all members of senior staff. She replied that she remembered her 125 answer, but what she meant was that she had addressed the staff about the competition, advising them about who had applied and that they would have to fill out "assessment criteria forms," with respect to candidates they supervised. 63. She was asked why, in her memorandum of November 19, 1990, with respect to Mr. Daley, she mentioned that he had a university degree, but did not mention the fact that the grievor had a university degree (B.A.) and a university diploma in management. She answered that she did so because some management positions require a degree, and Mr. Daley already had taken "that step." She did not explain what she meant by this statement, but we take her to have meant that Mr. Daley had moved into a management position and Mr. Lumley had not, and had never performed any management development assignments. 64. She did not recall seeing any negative assessments with respect to Mr. Lumtey, but added that she could not remember what file documents she reviewed with respect to. him~ 126 65. She gathered a lot of information about "several" of the applicants. Although she did not make notes, she tried to remember the information she obtained, adding that she did not know any of the applicants very well. 66. It was put to Ms. Doherty that she made a negative assessment of Mr. Lumley because he was black and was from Jamaica, and for that reaon she discounted his educational background and experience with the Government of Jamaica. She strongly disagreed with this suggestion. 67. In denying this suggestion, she emphasized that she had acted solely on the basis of her own observations; her examination of available relevant documents; and her discussions with managers. On the basis of the available information, there was no objective evidence to demonstrate that Mr. Lumley had either managerial skill or the potential to become a manager. 68. She was asked whether she considered the fact that Mr. Lumley took management courses at the University of the West Indies in Jamaica between 1975 and 1980, and had been awarded a Diploma in 127 Management Studies, as evidence of his having management skill and potential. She replied that the passage of time since he received his diploma did not indicate to her that he had any managerial leadership qualities, especially in the light of his performance at the institution. 69. It was put to Ms. Doherty that she had not considered the fact that Mr. Lumley was, at the time of the competition, enrolled in the Bachelor of Business Administration program at York University, and was well on his way to qualifiying for his degree. She stated that she had considered this fact but did not give it any more weight than if he was pursuing any other kind of education, an example being taking a course, of any kind, at the community college level. She reiterated that her focus was on Mr. Lum!ey's work at the institution, and in her view he had never done anything to obtain management experience while working at the institution, and one would never "~uess" from his behaviour that he had any interest in a management position or the ability to function at the management level. She did not re~ard his pursuin~ a Bachelor of Business Administration degree as evidence of an ambition to become a manager or as 128 evidence that kis courses were directed at devloping management skills, and she therefore recommended that he pursue "business administration opportunities through the competition process." 70. .Ms. Doherty was informed that Mr. Small had testified that he had undertaken to perform a second assessment after a second conversation with her on November 23, 1990, that led him to believe that the assessment was. more important than he had initially believed. She replied that she thought he had said that he carried out the second assessment because he had spoken to other managers who had a different view of the grievor. Ms. Doherty was reminded that Mr. Small's evidence was that one-and-a-half to two hours after he had completed his first assessment, he received a call from her, and she was reminded that both of Mr. Small's assessments were completed on November 23rd. She was asked whether'she-recalled the telephone call to Mr. Small that he referred to in his e¥idence. She said that she did not, She was asked whether she denied that she had a telephone coversation with Mr. Small on November 23, 1990, as described by him in his evidence. She said 129 that she could not recall whether this was the case, but did not deny that such a conversation might have taken place. 71. Ms. Doher~y was pressed further on this subject and was reminded that Mr. Small had testified that she had told him, during the said telephone conversation, that the assessments that he was to prepare would directly impact on a candidate's success or failure in the competition, and that they should be completed on the day she phoned him in order that they could be forwarded to the Regional Office. She replied that she thought that her secretary had placed a call to Mr. Small, and she had some-recollection of telling her secretary to get the supervisors' assessments "in on'time." She denied speaking to any individual manager about any individual assessment, she added that she thought she had spoken to managers "face to face," when obtaining information about individual candidates. 72. She first became aware of the fact that there were two assessments with respect to the grievor when she was shown them by counsel at the commencement of the hearing. 130 73. She was again asked, when she first became aware that Mr. Small had prepared two assessments with respect to the candidates, and replied that she learned about this when Mr. Small testified. She acknowledged that except for seeing Mr. Lumley'S two assessments prepared by Mr. Small, she did not see two assessments with respect to any other candidate prepared by Mr. Small. She agreed that preparing two assessments represented an unusual procedure and had never seen an example where this had been done in the past. 74. Mr. Small never informed her that he had prepared a first and then a second s~t of assessments. 75. She recalled receiving Mr. Smalt's written assessment (the one she forwarded to the selection committee), but could not recall having had any discussions with him with respect to any of the candidates. She stated that she took Mr. Smalt's assessment into account in forming her own conclusions before writing her memorandum of November 19, 1990 to the selection committee. 76. She read Mr. Smatl's assessment in its entirety before completing her memoranda to the selection committee. She was pressed as to which parts of 131 her memoranda relied on Mr. Small's written assessment and replied that she did not "get that ........ specific." She said that she made a "general" assessment after considering "especially" the personnel file, as well as other information obtained by her. She said she followed the same process with respect to each of the candidates. She acknowledged that in the case of Mr. Smalt's assessments, she relied upon the second ones, not being aware that there were any others prepared by him. 77. She recalled the process she followed ctear~y because it was the way she always conducted such matters, and she noted that she is usually responsible for the running of competitions within the institution. 78. She was referred to her memorandum of November 19, 1990, with respect to Mr. Lumley, addressed to the selection committee, and was asked to comment on the fact that it appears to have be~n written on November 19, 1990 and received at the Office of the Regional Director, Metro Region (see copy of memorandum found in Exhibit 9, Tab 7) on November 20, 1990, according to 5he date stamp. She stated 132 that she had.no reason to believe the information was inaccurate. 79. She was then directed to the fact that Mr. Small's assessment of Mr. Lumley was dated November 23, 1990. It was suggested that she could not have had Mr. Small's assessment on the 19th of November, if it was not created until November 23rd. She a~reed with this suggestion. It was pointed out to her that Mr. Small had tesZified that he was certain that he completed the assessments on November 23rd. 80. She was then asked to reconsider her earlier evidence that she had read and considered Mr. Small's written assessments before she wrote her memoranda of November 19, 1990. 81. She was asked to agree with the sugqestion that it appeared as though her earlier evidence that she had reviewed Small's assessments before she wrote her memoranda, was not correct. She strongly disagreed with this suggestion, notwithstanding her acknowledgement that it now appeared that the assessments post dated her memoranda, and stated that she had a clear recollection of having 133 reviewed the assessments, including Mr. Small's, before she wrote her memoranda of November 19th. 82. She was asked if her answer would be the same with respect to all of the memoranda she wrote for the other candidates. She replied:"To my recollection, that is what I did." 83. She was directed to Mr. Small's assessment prepared with respect to Mr. Daley, included in Tab 10 of Exhibit 9, which is dated November 2 It was put to her that the memorandum to the selection committee by her dated November 19, 1990, showed a date stamp at the Regional Director, Metro Region's Office, of November 20', 1990. She was asked if it was likely that Mr. Small's assessment was, in fact, dated November "twenty something." Her first response was that she agreed with the suggestion, and her second one was that she did not know. It appears that Mr. Small's assessment was completed on November 23, 1990, being the date he said he performed all of them, and that the date with respect to Mr. Daley's assessment is not November 2, 1990, but No~ember 2 , 1990, with the exact date being indistinct on the copy filed. 134 84. MS. Doherty was directed to her memorandum of November 19, 1990, with respect to Audre~ Williams, addressed to the selection committee, which shows a date stamp in the Regional Director, Metro Region's Office, of November 20, 1990. She acknowledged that date stamps are usually accurate, and Mr. Small's assessment of Ms. Williams was dated November 23, 1990 (assessment part of Exhibit 9, Tab 12). 85. She was directed to the materials in Tab 13 of Exhibit 9, with respect to one of the applicants, Lee Anne Cannon. The person who performed the assessment of Ms. Cannon (using the same form as was employed by Mr. Small) was Don Mikel, who was a senior manager, as well as a candidate. His assessment of Ms. Cannon is dated November 26, 1990. The memorandum with respect to Ms. Cannon completed by Ms. Doherty, dated November 19th, has no date stamp on it. B6. MS. Doherty was directed to the material at Tab 14 of Exhibit 9 with respect to Rose Buhagiar. It was noted that her memorandum with respect to Ms. Buhagiar is dated November 19, 1990, and is date stamped November 20, 1990. The assessment 135 completed with respect to Ms. Buhagiar is dated November 23, 1990, and was signed by Mr. 'Small on that date. 87. Ms. Doherty was directed to the material in Tab 15 of Exhibit 9 rela~ing to the application of Dave Mackinnon, where the dates of the memorandum, its receipt, and of the assessment by Mr. Small, were the same as for the ~rievor and the other candidates noted. 88. It was put to Ms. Doherty that in every case the assessments were dated after the date of her memoranda, and she was asked whether she was still insisting that she read the assessments before she wrote her memoranda to the selection committee. She replied that it did "not look like it," but insisted that she had read them at some time, although perhaps not before she made her comprehensive evaluation of the candidates. She stated that almost six years had passed since the incidents she was testifying about, and that she now could not recall exactly what happened, but agreed that it appeared .that she wrote the memoranda before the dates on Mr. Small's assessment and before the date on Mr. Mikel's 136 assessment and her own assessment as Mr. Mikel's supervisor, dated November 22, 1990 (Exhibit 12). She then stated that it now appeared that she did not have the benefit of the information contained in the written assessments from supervisors when she wrote her memoranda with respect to the candidates on November 19, 1990. 89. Ms. Doherty was asked whether she agreed with the suggestion that to the extent that she had information about the candidates from senior managers, this information was from direct discussions. She disagreed, and stated that she received verbal and written communication from senior managers, although she made no notes. She was asked what written submissions she received from senior managers before she wrote her memoranda of November 19, 1990. She referred to information contained in the employees' personnel or facts files that were written by senior managers. She was emphatic in stating that she had seen candidates' facts files, personnel records, as well as their attendance records, which she reviewed before preparing a memorandum with respect to each candidate. 137 90. MS. Doherty acknowledged her earlier evidence that she had read personnel files, attendance records, and written assessments before she wrote her memoranda. She said that on reconsidering her evidence, she now believed that she must have read the.supervisors'assessments, such as those prepared by Mr. Small, after she sent in her memoranda of November 19th. She also stated that she had requested "verbal input" from senior and middle managers before the date she sent out her memoranda of No~ember t9, 1990. She acknowledged that she could not now recall any specific verbal input that she received concerning Mr. Lumley. 91. She disagreed that the memorandum of November 19, 1990, she wrote with respect to Mr. Lumley was negative. Her view of it was: "that it was and that 'it wasn't," in the sense that she believed that she was frank and honest in writing it. She felt that Mr. Lumley needed experience as a supervisor or manager before he.could be allowed into a management development pro~ram, and she believed that her letter conveyed that information fairly and honestly. 138 92. She stated that because a person was a good correctional officer did not mean that h~/she could become a good manager. Proof was required of management potential, which she never saw in Mr. Lumley's case. Evidence Given During Re-examination of Ms. Doherty: 93. Each employee has a personnel file which contains the contract of employment, date of hire, oath of secrecy and proof of education. She observed that some managerial positions require a particular level of education. The personnel file was said to contain "every bit of information" about an employee since the date of hire, including letters of commendation, appraisals, discipline record, attendance record, record of grievances, including a copy of all step % and resolution meetings, and a record of any additional courses taken. 94. Mr. Wallen, the Regional Personnel Administrator at the time of the competition, called the institution after November 19, I990, to request the supervisors' assessments that had not been remitted with Ms. Doherty's memoranda with respect to'each applicant. She recalled asking her 139 secretary to call managers to submit the assessments, as she was not responsible for putting the material together before it was sent to the Regional Office. Her secretary had been assigned this task. She said it made sense that someone would call from the Regional Office when all of the information required by the committee had not been remitted. She assumed someone had called from the Regional Office, because that is what caused her to ask her secretary to call the supervisors to complete and turn in the assessments. Upon reconsideration, she was not entirely certain who called her from the Regional Office. Because she did not review what her secretary did in this instance, she did not know for certain what was included in the "package" of materials sent to the selection committee. To the best of her recollection, it was her secretary who asked supervisors to complete and bring in the assessments. Evidence of Tony Wallen Mr. Wallen testified as follows: 140 1. He is the Regional Personnel Administrator and the Manager of Human Resources for the Southern Region of the Ministry of the Solicitor General and Correctional ServicesJ 2. The Southern Region represents a group of eight core institutions and 14 probation and parole areas, the latter representing office groupings of probation officers. There are approximately 2,900 employees in the Region. Mr. Wallen's department of seven .persons provides a broad range of generalist human resources services. These include such matters as : recruitment, compensation, labour relations and management development. In November of 1990, he was in the same position, in the He, ion referred to as the Metro Region. He was then responsible for 1,900 employees. That included five institutions in the Greater Toronto area and 20 probation and parole offices. His functions were the same at that time as they are now. He is familiar with the memorandum to .Superintendent/Area Managers in the Metro Region from D.A. Parker, the Regional Director, dated October 1, '1990, on the subject of Metro Region Management Development Program, found at Tab 3 of 141 Exhibit 9. He identified this program as an attempt in the Region to complement existing promotional and employment,equity processes which he lumped together as "any development process." He went on to say that the program was to identify a small.group of people with potential to move into administrative/management positions. There was a management ranking process similar to that found in the military in the core institutions in the Region at that time. The first level manager in those institutions was the operations manager. The first level above the operations manager was the administrative manager. He identified the operations manager as the front- line manager. 5, The process of selecting persons to participate in the management development program was an attempt · to identify people with potential for those positions. 6. Once persons were chosen for the program, they were to be put in one or more short-term administration/management positions, It was intended to identify any training needs they might 142 have and provide it. Assignments were expected to be short-term, from three to six months, dependin~ on the availability of opportunities to work in those positions. Attempts would be made to place successful candidates in areas that were consistent with their interests. 7. It was made clear that the program was not a "fast track" to promotion. 8. Funding for most of the positions was expected to come from existing sources, with an example being given of filling existing vacant positions. 9. Ail or most of the temporary assignments were expected to have managerial components attached to them. 10. Appointment to the program was to be based on a competitive process with routine selection criteria. 11. Mr. Wallen was a member of the Regional Planning Committee for the project and organized most of the written material with the Regional Management Development Committee. As the Regional Personnel 143 Administrator, it was his responsibility to ensure that the process followed existing Government and ....... Ministry recruitment processes and to prepare an opportunity bulletin. He carried out most of the administrative details associated with the competition: letters, the setting up of interviews, and most administrative human resources duties associated with the competition. 12. He endeavoured to ensure that the screening criteria were reasonable in the light of the functions to be filled by the successful candidates. The committee met for almost six months in order to develop the screening criteria, along with traditional recruitment practices. The committee identified the core skills that the applicants should be able to demonstrate if they were to be selected for the program. He added that an applicant could demonstrate the required skills on the basis of duties and responsibilities performed in their current positions. The committee endeavoured to identify a record of work performance that demonstrated that an applicant had the demonstrated skills and abilities to participate, in the program. The final material 144 produced was based on a consensus decision of the committee. ' ...... 13. The selection committee hoped to identify a few people (the program was limited financially) who had demonstrated in their current positions many of the skills being sought. An attempt was made to identify a number of key managerial skills as are set out in the letter of October 1, 1990, from Mr. Parker to the Superintendents/Area Managers of Metro Region. It was the intention to have an assessment made by a supervisor, either the Superintendent of an institution or by the supervisor with the most knowledge of the candidate. It was expected that the supervisor with the best knowledge of an employee's work record would be able to know if that employee possessed the managerial potential in the areas being emphasized. Superintendents were requested .to review the attendance records of the applicants, as well as their most recent performance reviews, and furnish a letter dealing with the work performance in.general, in addition to a skills assessment in accordance with Mr. Parker's memorandum of October 1, 1990 to superintendents and 145 area managers (Tab 3, Exhibit 9), where there is reference in the covering letter already referred'to, requiring one signed by the superintendent containing his/her comprehensive evaluation of an applicant's skill and abilities under the 10 assessment criteria factors set out on page 4 of the program outline. 15. The selection committee met to pre-screen the candidates based on documents, expected to include with respect to each candidate: (1) a r~sum~; (2) a covering le~t'er from each applicant; (3) a supervisor's assessment; (4) the superintendent's assessment; (5) the'applicant's most recent PPR; and (6) copies of the applicant's attendance record for the past two years. Mr. Wallen indicated that the supervisor's overall assessment and the assessment of management skills might ~be in one document depending on whether there was only one manager. In institutions, there was expected to be an "overall assessment" signed by the superintendent, and a skills a~sessment prepared by a front-line administrative manager. In the case before us, Ms. Doherty prepared assessments with respect to at least one candidate, Mr. Mikel, as his supervisor, and also 146 sent in a superintendent's assessment (her memoranda of November 19, 1990). 16. The committee was divided into two panels, each assigned one half of the 70 applicants. Each group had one Regional Manager, one Superintendent and one Probations Manager, and either of Mr. Wallen or the Regional Training Advisor. 17. The committee first met as a whole to conduct a trial screening of a few of the applicants to ensure that the standards employed by all of its members would be the same: to make sure that they were "all on the same wave length." He said that the applications were assessed "basically" by persons who did not know the applicants. 18. Mr. Wallen, who did not know who the grievor was in November of 1990, believed that he was on the . pre-screening team that dealt with his application. The pre-screenings, group developed a rating record shell, based on the screening criteria set out in the opPortunity bulletin, which shell is found at Tab 4 of Exhibit 9. 147 19. Mr. Walten referred to a confidential memorandum addressed to the Management Development Committee members from Mr. D. Cooley, the Acting Regional Manager, Metro Region, on the subject of the selection process, dated November 5, 1990, which is Exhibit 13: The following screening criteria were agreed to at our meeting on October 29, 1990. Please review them for their accuracy. Screening Criteria 1. Experience - approximately 2 years after probationary year (i.e. 3 years) in a correctional environment. 2. Work Record - consistently good PPR - disciplinary record - management's comments on PPR and/or covering letter. 3. Education - any level of involvement as indicated. 4. Communication - look at supervisor's comments to #9 - review letter of application and resume 5. Attendance , - look at attendance record submitted by manager - look at pattern of absences - 2 points for 2 days or less absence for each of the two years - satisfactory attendance less than 6 days in each year. 6. Supervisor's Assessment 148 - 2 points when manager describes' employee in terms of excellence in ........ this category. - one point when employee is described in satisfactory terms based on demonstrated performance. Process Look at the range of points accumulated for each candidate and decide on the cutoff based on distribution of scores. A chart will be drawn up to assist with the screening. The next meeting {November 19, 10:00 a.m., Regional Office) will enable us to develop the selection process. In advance of this meeting, please devise one original question which could be used in the oral interview to assess the kinds of qualities which we have identified as relevant to the program's objective .... 20. Mr. Wallen regarded Exhibit 13 as quantifying each selection criteria and as being a summary of what the committee agreed to. Item #1 in Exhibit 13, "Experience," had a maximum value of one ~oint. Item #2, "Work Record," had a maximum value of one point. Item #3, "Education," was based on some involvement with post secondary education. The fact that the applicant was pursuing post secondary education was regarded as an indication of his/her pursuing further education, and was given a maximum value of one point. Item #4, "Communication," would'be based not only on a review of the supervisor's comments to #9, but also on a review of the letter of application and r~sum~, to see whether the candidate could "put together" an 149 appropriate letter, usin~ proper grammar, and that the r~sum~ indicated information showing the~candidate was at the level expected for the position being sought. He added that in addition to looking at the supervisor's assessment, the committee would also review the applicant's performance appraisal. Based on an overall assessment of oral and written communication, a maximum of One point was available under this head. Under item #5, "Attendance," the committee intended to examine attendance for the years 1989 and 1990. Absence of less than two days for each of the two preceding years would earn two points. Less than six days' absence for both of the two years would earn one point. Item ~6, "Supervisor's Assessment," was scored in accordance with the statements contained in Exhibit 13. It is difficult to know which supervisor is being referred to, but on the basis of Mr. Wallen's further evidence it appears that he was referring to the assessment made by Ms. Doherty in her memoranda of November 19. 1990 with respect to each of the candidates, even where she also completed a supervisor's assessment, as had Mr. Small and others. 21. Mr. Wallen also indicated that a maximum of one point would be awarded for a candidate's statement of career objectives, which was taken from the 150 opportunity bulletin. The committee was looking for a statement from each candidate with respect to his/her career objectives, which would set out where the candidate wanted to be in terms of his/her career in the future. Where a candidate did not outline in a clear manner where he/she intended to go in terms of his/her career, either in the covering letter or other documentation, then no points would be awarded under this heading. 22. The document dated September 25, 1990, entitled "Metro Region Management Development Program," accompanied the memorandum to Superintendents/Area Managers, Metro Region, from D.A. Parker, Regional Director, Metro Region, along with the opportunity bulletin, all of which are found in Exhibit 9, Tab 3. Mr. Wallen stated that the memorandum of September 25, 1990, entitled Metro Region, Management Development Program, referred to, provided an overview of the entire process to be followed in carrying out all aspects of the competition. 23. He stated that the supervisors' assessments of the applicants' skills and abilities, as outlined in 151 the ~ollowing section, referred to at page 3 of the Metro Region Management Development Program Overview of September 25, 1990, were to be based on the manifestation of those skills and abilities on the job: in the candidate's current "job." 24. He stated that starting at page 4 of the said document, under the Assessment Criteria (Skills and Abilities), which set out the ten skills and abilities to be evaluated, there were indications as to what-was bein9 sought. For example, under "Program Management," the words appear: "successfully implements assigned tasks, projects and/or programs; makes adjustments where necessary; meets deadlines and delivers results." Under "Planning," the words appear: "develops sound action plans, sets realistic objectives." It was anticipated that the supervisors performing the assessments would make use of these guidelines as a "break down of each skill." The "break down" was to assist 'supervisors to identify what level of achievement was expected of the.candidates. He stated that the skills and abilities set out were "generic skills" taken from "generic management appraisal processes employed in the Ministry." He added that the list of skills and abilities 152 represented skills and abilities with respect to which managers were assessed. 25. The committee intended to "translate" the supervisor's assessment into points. In this case, it appears that he was referring to such assessments as were completed by Mr. Small. The selection committee relied on the supervisors' assessments to tell its members whether an applicant demonstrated the kinds of skills and abilities set out in the document while performing in their current positions. If a supervisor's assessment indicated that this was the case, under each of the criteria to be commented upon, then the applicant would be given a point or points depending on the number of points (one or two) assigned to the skill and ability being assessed. In cases where full credit was not warranted, but some credit was dua, a ha!f-point (for a one point item) or a half-point or one point (for a two p~int item) could be awarded. 26. One person on each screening panel was assigned the task of reading an applicant's r~sum~. Other members of the panel were responsible for summarizin9 the coverin9 letters. Each person on 153 the Panel received the same information, and rating~was performed on a consensus basis for each of the categories of skills and abilities. Based on the consensus rating, a candidate was given a point, no points or one-half a point. One of the members of the panel was responsible for recording the point total. The panel would then move to the next applicant and perform the same exercise. When all aspects of the pre-screening had been completed by each panel, both panels met as a group and summarized the final point ratings for each applicant. The committee then looked for a "natural break" so as to be able to determine what number of points would be required in order to be entitled to an interview ("below the curve"). 27. In order to balance the determinations of the two panels of the committee, each group kept a list of "problematic ratings." That is, where questions remained about the correctness of a points assessment after an applicant'received no points, one point or one-half point under a two point category, or no points or a half-point under a one point cate~ory..Dif~erences were resolved by the complete committee if there was additional evidence to warrant a change in the points 154 alloted. Ail members of the committee received a copy of the summary with respect to the ~andidates ......... assessed by each group. 28. Trial screenings were carried out to ensure that all members of the committee were familiar with the criteria. After a period of three days, the entire committee met (each member being furnished with a rating sheet) in order to review the ratings and to become familiar with what each group had done. If the full committee determined that an assessment was "way out of whack," it would review anomalous results. 29. An effort was made to review the documentation to ensure that the marking scheme employed by each panel was consistent. 30. Mr. Wallen noted that some of the "work sites," of which there were 24 to 25, did not comply with the requirements of the instructions sent to them. He referred to there being a difficulty in gettin~ the superivsor's assessments in on time from some institutions. Some assessments were incomplete or were not responsive to what was required. Some work sites did not send in the skills assessment 155 and sQme did not send in attendance records. A follow-up was carried out by telephone on a single day and requests were made to the work sites to send in the information required "asap by fax." 31. Mr. Wallen confirmed tha~ the date stamp that was placed on documents sent to the selection committee, such as is recorded on Ms. Doherty's memorandum of November 19, 1990, with respect to Mr. Lumley, indicates the date when the document was received in the Office of the Regional Director of the Metro Region. He stated that there was no way of knowing whether the supporting documents were enclosed with Ms. Doherty's memoranda, and there is nothing in it to show what documents were remitted along with it. Mr. Wallen stated that it would appear that the supervisor's skills assessment, dated November 23, 1990, had not been sent in with Ms. Doherty's memorandum of November 19, 1990. He stated that: "We received most of the applications from MTEDC, without the supervisors' assessment." Don Cooley, a manager who was on the screening committee, was asked to contact Ms. Doherty to inform her that the supervisors' skills assessments were missing (she initially thought she heard from Mr. Wallen), and 156 he also believed that she was advised that the / attendance summary was also missing from'the documents sent to the committee from MTEDC. Mr. Cooley was asked to request Ms. Doherty to send the missing documents to the committee as soon as possible. Mr. Wallen was not certain whether the committee had commenced to screen applicants prior to November 23, 1990. 32. He then stated that the screening of the MTEDC candidates commenced after all of the documents were received. He identified the additional documents received as being the "skills assessment" forms and the attendance information. 33. The committee assigned points for the last nine categories shown on the supervisors' skills assessment form. He added that the scores would have "impacted" on the communications assessment. 34. He reviewed the screening criteria points assessment under the management development program found at Tab 4, Exhibit 9, as they related to Mr. Lumley. He noted-that Mr. Lumley received one point for "Experience," which information was obtained from his r~sum~. Mr. Lumley was awarded 157 one point for "Work Record," which the committee obtained from his file summary of his PPR appraisal. He was given one point for "Post Secondary Education," the information being relied upon was the fact that Mr. Lumley was working towards a Bachelor of Business Administration at York University and had been involved in previous post secondary education. Mr. Lumley was given one-half point under the heading "Communication," and this. was based, in part, on Mr. Small's assessment. In this case, it was noted that Mr. Small had said that Mr. Lumley was "somewhat difficult to understand at times," but had good written skills. He added that if the committee had before it only the first assessment, then it would have awarded one point to Mr. Lumley for communication skills. Mr. Lumley was awarded no points for "Attendance" because he had been absent six days in 1989 and four days in 1990. This information was obtained after the con~ittee requested the institution to submit employees' attendance records after they had initially failed to do so. Mr. Lumley was given no points for the "Supervisor's Assessment" (Ms. Doherty's memorandum of November 19, 1996), because of the statements contained therein: that he did not have 158 "management capabilities or even potential for leadership." Mr. Lumley was awarded no points for "Career Objective" based on the committee's view of his covering letter of October 29, 1990. The committee did not regard Mr. Lumley as having indicated where his career objectives lay. Mr. Watlen stated that the committee was looking for "more defined career objectives." Mr. Lumley was given one-half point under the heading "Covering Letter." Mr. Wallen stated that the letter was "alright," but was not sufficiently complete for "this type of opportunity." He stated that the letter was too brief and too vague, although it was "grammatically correct and neat." Mr. Lumley was given a half point for "Program Management". based on Mr. Small's second assessment that "potential exists." Mr. Wallen stated that the assessment did not say that potential had been demonstrated, and the committee looked for a more positive statement in order to award a full point. If the first assessment had been before the committee, which was a negative assessment in the area of "Program Management," Mr. Lumley-would have been awarded no points. Mr. Lumley was given no points for "Planning" because Mr. Small's assessment said "lacks ability." If 159 the first assessment had been before the committee, a half-point would be awarded on the basis of the statement, "satisfactory." He added that the committee would likely have given one point for the assessment of "satisfactory," and certainly one-half point. One-half point was given for "Decision Making" because the committee did not regard Mr. Small's assessment to be very "strong." If the first assessment had been before the committee, Mr. Lumley would have been awarded one point for "Decision Making." "Good" was regarded as better than average. Mr. Lumley was awarded no points for "Initiative" because the second assessment recorded that he lacked that quality. On the basis of the statement "satisfactory" in the first assessment, the committee would likely have given one point on the basis that that statement demonstrates initiative in the apPlicant. Under the heading "Thinking/Conceptual Ability," Mr. Lumley was awarded no points on the basis of the statement "somewhat irrational at times." If the first assessment had been before the committee, where the entry was "good," the committee would have given one point. Under "Analysis/Synthesis," Mr~ Lumley was given no points because of Mr. Small's statement that he was "unable to analyze situations thgroughly." If the first assessment had been before the committee, Mr. Lumley would have "probably" been awarded one-half I 160 point, and "possibly" one point. Under "Innovation," Mr. Lumley was given no points because of'the statement in the second assessment: "follower, not a leader." If the first assessment had been before the committee, he would have received "certainly" one-half point, and "possibly" one point. Under "Workload Management," he was given no points based on Mr. Small's assessment that he "needs training/courses in this area." Mr. Wallen stated that if the first of Mr. Small's assessments had before the committee, where Mr. Small said that the workload management skills of the grievor were "satisfactory," then he'would have "probably" received a half-point. As Mr. Small recorded that Mr. Lumley had good relationsh%ps with colleagues, Mr. Wallen stated that he would receive one point under the category "Interpersonal," whichever assessment was before the committee. 35. The committee arrived at a cut-off score of 14.5 for an interview, using a "bell curve" approach. He stated that the committee found a score Of 14.5 points to be a "natural break." 36. 71 persons applied for the management development opportunity; 31 were interviewed, and nine were selected. 161 37. The fprty persons who were not, were to be told verbally by their managers that they would not be interviewed, and they were to be sent letters to that effect. 38. If Mr. Lumley had been given a full point under Planning, Initiative, Thinking/Conceptual Ability, Analysis, Innovation, where he had been given no points, and had been given an additional half point under Decision Making and Communication, based on the first of Mr. Small's assessments, he would have received an additional 7 1/2 points. He would lose one point where the second assessment contained a higher rating. His points total would then be 12 1/2 points, rather than 6. Mr. Walten concluded that whichever assessment was used by the committee, Mr. Lumley would have been screened out and would not have been entitled to an interview. 39. Subsequent to the meeting of the committee that screened out a number of candidates, including Mr. Lumley, Mr. Wallen had no further involvement with Mr. Lumley until he received Mr. Curling's letter of February 14, 1991. On March 6, 1991, Mr. Walten 162 wrote to Mr. Curling (see Exhibit 5 at p. 8. above ) :. 40. Prior to receiving the letter from Mr. Curling, Mr. Wallen spoke to him over the telephone and informed him that he would send him a letter, with a copy to Mr. Lumley, indicating that Mr. Lumley could contact him in order to obtain "feedback" as to why he was not selected for an interview. 41. Mr. Wallen stated that Mr. Lumley spoke to him over the telephone approximately two weeks after Mr. Wallen had sent his letter to Mr. Curling. Mr. Lumley was said to have informed Mr. Wallen that he had made numerous attempts to contact him over the period of the three previous months. 42. Mr. Wallen stated that his receptionist receives and logs all telephone calls. The receptionist is required to ask the calling party.to identify him/herself. Where they do not 'do so, no record of the call is kept. He said that there was no record of the grievor having called him. 43. In the call that he received from Mr. Lumley, Mr. Wallen was asked the reason why he was not given 163 an interview. He said that he spent approximately one hour on the phone with Mr. Lumley and reviewed the basis for the scoring with respect to every category on the rating sheet, and explained the basis for his being given a particular score. He also explained to Mr. Lumley how the cutoff point was arrived at and how assessments were made with respect to all candidates. Mr. Lumley was said to have told Mr. Wallen that he did not have a copy of the assessment form, and Mr. Wallen told him that he should go to Mr. Small and request one. 44. Mr. Wallen added that he emphasized to Mr. Lumley it was easy to confuse the difference between a regular PPR and the kind of assessment Mr. Small had to carry out. He told Mr. Lumley that, in the first case, an employee was being assessed with respect to the performance of his regular job. In the second case, the assessor had to address what skills a person had at a higher level, being the managerial level. 45. Mr. Lumley did not appear to be paying careful attention to the above explanation, and seemed to be more interested in expressing his "hurt feelings" and dwelling on the fact that his working towards a B.B.A. from York University was 164 ignored as an indicator of his management potential. Mr. Wallen explained to Mr. Lumley how the committee only gave limited weight to post secondary education, with a view to showing that he (Mr. Lumley) received the maximum point score available under that category. 46. Mr. Wallen then spoke "briefly" to Mr. Small at the MTEDC over the telephone and asked him to furnish Mr. Lumley with a copy of his assessment. He also told Mr. Small that he had instructed Mr. Lumley to see him (Mr. Small), and of the fact that Mr. Lumley appeared to be quite upset by the assessments given him. 47. Mr. Wallen expanded on his earlier answer with respect to what experience was taken into consideration by the committee, and stated that he expected candidates would be assessed not merely on the basis of experience gained in their regular jobs, but on experience gained 'in previous developmental assignments. In cases where candidates had previous experience in developmental assignments, "some" consideration was given .to that fact, and he referred to a 165 number of candidates who had been on such assignments. 48. Of the nine applicants selected for participation in the Metro Region Management Development Program - 1991, none were correctional officers. He explained this as arising from the fact that the assessment process associated with the competition was primarily concerned with a management skills assessment. As correctional officers did not have much opportunity to demonstrate those skills, the result was not unexpected. He noted that there were other persons who applied, who were not in management positions and who were not probation officers, who would suffer the same disadvantage. 49. Reference was made to Ms. N. Pupo, a probation officer who was interviewed and was a successful candidate. Mr. Wallen stated that Ms. Pupo was a probation officer who had had e~perience as an assistant probation manager for approximately six to nine months, and who had also been an acting area manager. 50. He also referred to a successful candidate, Ms. C. Kitchen, who had had management experience for three to four months on a project with the Legal 166 Services Branch, and who had been appointed as an administrative manager in charge of programs at the Mimico Correctional Centre. At that time, Ms. Kitchen's regular job was as a probation officer. 51. Mr. Wallen stated that Ken Storey was a successful candidate who had been interviewed. He said that Mr. Storey was a unit manager at Mimico and had been a shift supervisor at the Toronto Jail, and had served as an administrative manager in charge of operations. 52. Rose Buhagiar was either a corporal or a unit manager, but he was certain that she functioned in a supervisory capacity at the MTEDC. She had worked at the Toronto West Detention Centre as a shift supervisor for approximately three to six months, and then returned to the MTEDC. He believes that .she was promoted shortly after her return to the MTEDC. 53. Mr. Wallen stated that Jackie Sayle, a candidate who was interviewed and was successful, was a probation officer who had been assigned as an administrative manager at the Mimico Detention Centre for approximately six to eight months. 167 After that, she returned to her home position and later was transferred to the Regional office for other, acting opportunities as a project officer. 54. Ms. Enid Weinstein served as a volunteer co- ordinator at the Toronto West Detention Centre, taking over from Ms. Cannon during audits and open custody hours for approximately three months. She then returned to her home position and later served at the Mimico Detention Centre on developmental assignments as community programs manager for approximately six months, after which she was returned Lo her home position. 55. Aubrey Appel was a probation officer who became an acting area manager for one to one-and-a-half years, while filling a vacancy. He then returned to his home position. 56. Mr. Wallen believed that between eight and ten correctional officers had applied for the development program. Evidence of Mr. Wallen in Cross-examination: 168 57. He was involved at-the screening level, when the committee broke into two groups, and at ~he interview stage. He could not recall whether a single panel or two panels were used at the interview stage. 58. He was asked whether any of the candidates chosen to be interviewed were black. He stated that two of them were, being Leroy Jeffers and Pauline Jones. No black candidate was successful. 59. He only became aware that Mr. Small had prepared two assessments when the hearing of this case commenced on the merits. He then testified that it was "common practice" for a supervisor to complete two performance appraisals of an employee. It appears that he was referring to a PPR performed by a supervisor and then performed at a time (usually at least a year later) by the same supervisor. He was asked whether it was common practice for a supervisor to complete two evaluations of the same employee on the same day, and he-replied that it was not. He added that he had never seen this done in any other case. He also stated that where an assessment of a candidate was performed twice in one day by the 169 same evaluator, one evaluation should not be given to the competition panel and the other tO the candidate. 61. He was directed to Exhibit 13, being the confidential memorandum to the members of the development committee, including himself, dated November 5, 1990, from D. Cooley, the Acting Regional Manager of the Metro Region, on the subject of the selection process, which is set .out above. Mr. Wallen was asked where, in Exhibit 13, there was any indication that.career objectives was to be treated as one of the screening criteria. He stated that this was identified in the opportunity bulletin that was posted. He relied on the second sentence at the second page of the posting: "Applicant's covering letter should indicate what the individual's expectations are in applying to this program... "Mr. Wallen stated that the committee interpreted that statement as relating to career expectations. Union Argument: 170 1. The matter before us involves an allegation that the Employer, through its representatives, violated the provisions of Article A.1 of the collective agreement. 2. Specifically, the case before us is based on an allegation that Mr. Lumley was discriminated against in the competition for acceptance into the Metro Region Management Development Program because of his "race" and "colour." 3. The Union need only prove, on a balance of probabilities, that discrimination against Lumley because of his race and colour was an element in the decision not to grant him an interview. 4. A prima facie case of discrimination would be established by showing that Mr. Lumley, who was black, was qualified for appointment to the program and was not selected for an interview, and that there were candidates who were no more qualified than he was and who were not black who were selected for an interview. 171 5. Upon establishin~ the prima facie case, a burden is-placed on the Employer to demonstrate that discrimination on the basis of Mr. Lumley's race or colour was not a factor in its decision not to interview him. 6. It is not incumbent upon the Union to demonstrate that the Employer intentionally discriminated against Mr. Lumley because of his race and colour. However, it was submitted that in this case there was also an atle~ation of intentional discrimination. Reference was made to Ontario (Human Rights Commission) v. Simpsons-Sears Ltd. (Sub Nom. O'Malley v. Simpsons-Sears) (1980), 2 S.C.R. 536, at p. 547, per McIntyre J.: Without express statutory support in Ontario, inquiry board chairmen and judges have recognized the principle that an intention to discriminate is not a necessary element of the discrimination generally forbidden in Canadian human rights legislation. 7. Further, at p. 549 of O'Malley, McIntyre J. stated: I do not consider that ·to adopt such an approach does any violence to the Ontario Human Rights Code, nor would it be impractical in its application. To take the narrower view and hold that intent is a required element of discrimination under the Code would seem to me to place a virtually insuperable barrier in the way of a complainant 172 .seeking a remedy. It would be extremely difficult in most circumstances to prove motive, and motive would be easy to cloak .... 8. Reference was also made to Basi v. Canadian National Railway Co. (1988) 9 C.H.R.R. D/5029, a decision of the Canadian Human Rights Tribunal, dated February 16, 1988, where Richard I. Hornung, Q.C., Chairman, at para. 38474, found (at p. D/5037): The burden, and order, of proof in discrimination cases involving refusal of employment appears clear and constant through all Canadian jurisdictions: a complainant must first establish a prima facie case of discrimination; once that is done, the burden shifts to the respondent to provide a reasonable explanation for the otherwise discriminatory behaviour. Thereafter, assuming the employer has provided an explanation, the complainant has the eventual burden of showing that the explanation provided was merely a "pretext" and that the true motivation behind the employer's actions was in fact discriminatory. 9. Reference was also made to para. 38475, ibid.: It is therefore incumbent on the complainant, in this case, to first establish a prima facie case: Shakes v. Rex Pak Ltd. (1982), 3 C.H.R.R. D/1001 AT 1002: 173 In an employment complaint, the Commission usually establishes a prima facie case by proving: a) that the complai~ant was qualified for the particular employment; b) that the complainant was not hired; and, c) that someone no better qualified but lacking the distinguishing feature which is the gravamen of the human rights complaint subsequently obtained the position. If these elements are proved, there is an. evidentiary onus on the Respondent to provide an explanation of events equally consistent with the conclusion that discrimination on the basis prohibited by the Code is not the comrect explanation for what occurred. (See also Israeli v. Canadian Human Rights Commission and Public Service Commission (1983), 4 C.H.R.R. D/1616.) 10. At p. D/5038, para. 38481, of Basi, the tribunal stated: Discrimination is not a practice which one would expect to see displayed overtly. In fact, rarely are there cases where one can show by direct evidence that discrimination is purposely practised. 11. At para. 38482, ibid.., the tribunal stated: 174 Since direct evidence is rarely available to A complainant in cases such as the present it is left to the Board to determine whether or not the complainant has been able to prove that the explanation is pretextual by inference from what is, in most cases, circumstantial evidence: Discrimination on the grounds of race or colour are frequently practised in a very subtle manner. Overt discrimination on these grounds is not present in every discriminatory situation or occurence (sic). In a case where direct evidence of discrimination is absent, it becomes necessary for the Board to infer discrimination from the conduct of the individual or individuals whose conduct is at issue. This is not always an easy task to carry out. The conduct alleged to be discriminatory must be carefully analyzed and scrutinized in the context of the situation in which it arises. [Kennedy v. Mohawk College (1973) (Ont. Bd. Inq~) (Borons) (sic} [unreported].]" 12. Mr. Blair stated that the Union case "boils down" tO: (1) NO blacks were selected by the panel for acceptance into the development program. (2) The evidence of what occurred at the MTEDC before the applications were forwarded to ~he selection committee, and at the committee level after the applications were received. 175 13. The evidence demonstrated that Mr. Lumley had the requisite skills and abilities to be appointed to the management development program, which were equal to those of candidates who were successful. The. only difference between him and them was that he was black. 14. We were asked to review Mr. Wallen's evidence when he compared the first (more favourable) and second (less favourable) assessments of Mr. Small. Mr. Blair stated that Mr. Small's review of the first assessment projected a score of 12.5 points, which was said to be a substantially different assessment from that made by the committee based on the second assessment. 15. In referring to the attendance category used by the selection panel, we were asked to consider that the grievor had never been counselled about his attendance and to note that it was improving. It was also pointed out ~hat there were some candidates who received more points than persons whose overall attendance records were worse. It was submitted that if there had been a "reasonable assessment" of attendance criteria, the grievor 176 would have received two points and qualified for an interview. 16. It was also submitted that there was an "enormous subjective" element involved in certain of the criteria used by the selection committee: reference was made to the subjects of the covering letter, statement of career objectives and Superintendent's assessment. It was submitted that it was not possible to conclude that the.~rievor was "in any definitive way below the 14.5,point cut-off" established by the committee. 17. It was submitted, on an examination of who was interviewed and who was selected for the program, that it was just as likely that a person who received 14.5 points, based on the pre-screening criteria, would be awarded the management development assignment as would any other candidate who was interviewed. Mr. Blair stated that at least two persons who received 14.5 points and two persons with scores of 19 were selected for the program. It was submitted that Mr. Lumley deserved 14.5 points "as much as anyone." If he was treated as having earned 14.5 points, there was no basis for concluding that he was not going 177 to be selected for the program and, accordingly, the Board must treat him as being "qualified." 18. A review of the evidence and Mr. Lumley's r~sum~ should cause the Board to reach this conclusion. On a review of the "exercise" carried out in the course of the selection process, there was no "compelling" basis to show that every person who achieved a higher point score as a result of the pre-screening exercise was a better candidate for selection than was Mr. Lumley. This being the case, we were asked to consider the difficulty that Mr. Lumley encountered in obtaining an explanation from Mr. Small as to the basis for his assessment, and the fact that it was only as a result of Mr. Curling's intervention with Mr. Wallen that a meeting occurred between Mr. Small and Mr. Lumley for this purpose. It was submitted that Mr. Lumley should have been able to obtain the information that he sought without having to go through Mr. Curling. 19. It was submitted that Mr. Smalt's evidence about his handing his first assessment to Mr. Lumley in December of 1990, was "incredible," and we were asked to reject it and find that no such meeting 178 took place at that time. Mr. Small's evidence was said to be inconsistent with that Hiven by other witnesses (Mr. Wallen and Mr. Lumley), none of whom supported his version. It was submitted that Mr. Small, in stating that he met with the grievor around December of 1990~ was attempting to conceal his "unwillingness" to furnish Mr. Lumley with a copy of his assessment or to explain it. 20. We were asked to note the major inconsistencies between the evidence of Mr. Small and Ms. Doherty. We were asked to note Mr. Small's evidence that he received a telephone call f~om Ms. Doherty after he completed the first set of assessments, which led to his creating a second set of assessments. Mr. Small testified that he was furnished b~ Ms. Doherty with the assessment form on November 23, 1990, following which he made copies of it, took the copies to his office and completed assessments for the 'candidates assigned to him for this purpose. He testified that he then received a call from Ms. Doherty an hour-and-a-half to two hours later, at which time she stressed the importance of the assessments. He .said that this led to his concluding that he should obtain more information about Mr. Lumley' and the other candidates he had 179 assessed. At this point any detailed memory "evaporates." Mr. Small could not remember who or ........ how many persons he spoke to, or which criteria he reviewed with what persons. He did not make any notes about his efforts, and there was no corroboration of them, save for the "bald assertion" that he spoke to managers about Mr. Lumley. 21. It was submitted that Ms. Doherty's evidence could not "be squared" with that of Mr. Smali with respect to the incidents of November 23, 1990. She had no recollection concerning her speaking to him personally or of calling him by telephone on that date. She said that a call may have been made by her secretary to Mr. Small in order to have him deliver the assessment forms with respect to the candidates he was responsible for. 22. We were asked to note Ms. Dohert¥'s own "attempts" to furnish detailed recollections with respect to her involvement. In chief and during cross- examination, she stated that she had reviewed the supervisors' assessments of candidates before writing her own memoranda of assessment to accompany the material sent to the selection 180 panel. After she had given "detailed" evidence concerning her recollection, she was compelled to acknowledge that she could not have reviewed the supervisors' assessments before she had written her memoranda, because at the time she wrote them and at the time they were received by the Regional Director's Office, the supervisors had not yet completed their assessments. 23. Mr. Small testified that he carried out his assessments on the same day (November 23, 1990), and it is clear that he had ~ot commenced to carry out the assessments and had not yet. been given the assessment forms until after Ms. Doherty sent in her memoranda on November 19, 1990. It was submitted that Neither Ms. Doherty's or Mr. Small's evidence was credible with respect to their involvement in the process. 24. We were asked to note that Mr. Small indicated that the assessment that he sent in with respect to Mr. Lumley contained comments that he personally disagreed with. Yet he changed his assessment to conform with those negative appraisals. 181 25. We were asked to find that Ms. Doherty's and Mr. Small's statement that race did not play~a part ........ in their assessments was no more credible than the "false" evidence they had given regarding the process. 26. We were asked to consider the fact that Mr. Lumley required the intervention of Mr. Curling to finally obtain the assessments that he sought, and to consider the motivation for keepin~ him from ~ettin~ documents that he should have been furnished with. It was also noted that the second assessment was only obtained as a result of requests made by the Union after the.grievance was filed. It was submitted that there was'no credible explanation forthcoming from the Employer to explain the actions of Ms. Doherty and Mr. Small. 27. In response to an anticipated argument from the Employer that, at most, there was a flawed process involving mistakes and misunderstandings that did not amount to discrimination, it was submitted that such an argument was late in coming and had never been offered to Mr. Lumley prior to the commencement of the hearing on the merits. It was submitted that at no point was any credible 182 alternative explanation offered by the witnesses called by the Employer, whose evidence was based on conveniently selective recollections. 28. We were asked to find that the evidence was more consistent with "guilt." It was submitted that the "peculiar" and "unexplainable" conduct of the Employer's witnesses, especially Ms. Doh~rty and Mr. Small, should draw an adverse inference, given the difficulty of demonstrating direct evidence of discrimination. 29. We were referred, again, to the Basi case and its focus on purported explanations offered by employers at a hearing. At p. D/5040-41, the ~ Tribunal states: 38491 The respondent does not sufficiently refute any inference of discrimination by being able to suggest any rational alternative explanation; it must offer an explanation which is credible on · all the evidence; see Fuller v. Candur Plastics L~d. (1981), 2 D.H.R.R. D/419. 38492 In my view, the CNR has not provided a sufficient credible explanation as to why the evidence of Mr. Symenuk re: his selection method is contradicted so dramatically by the reasons as disclosed in Exhibits R-9 to R-12 and C-20. Nor, for that matter, has the CNR provided a satisfactorily credible explanation for any of the 183 other matters set forth in paras. 38434 to 38473 of this award. 38493 Frankly, the subtle scent of discrimination permeates the entire manner in which the CNR dealt with the Human Rights Commission in attempting to justify their actions regarding Basi. I am left with the conclusion that the rationale for not hiring Mr .... Basi, as described by Mr~ Symenuk, was not as innocent, direct nor reasonable as first proposed. It appeared to me, from the explanations provided to the Commission and from the information contained in the files of the CNR, that the respondent was attempting to justif~ the actions taken by Mr. Symenuk. The effect of the conflicting explanations and inconsistencies is to leave an inference, not only more probable but irresistible, that either the explanations of Mr. Symenuk with respect to the method of selection, or the subsequent explanations with regard to qualifications etc. (or perhaps both), are pretextual. 38494 I am left with no alternative but to draw the necessary negative inferences and conclude that the complainant has sufficiently rebutted the employer's explanation and has shown, by inference in the · circumstances earlier described, that the explanation was not the real reason for Mr. Symenuk's decision not to hire Mr. Basi but rather that it was a pretext. 38495 Accordingly, the complaint of Balbir Basi to the Commission ... is well founded and I find that discrimination as set forth in his complaint was one of the reasons for the CNR failing to offer him the position in question. 184 38496 Although I have reached the conclusion that Mr. Basi was discriminated against by the CNR, I' am not able to say that this discrimination was the sole reason why he did not receive the position in question; nor, can I say that he would have received the position but for the discrimination. 38497 However, it is sufficient to reach a conclusion that discrimination was one of th~ factors that influenced the employer in refusing Mr. Basi the position; it is not incumbent on me tO determine that it was the sole or primary reason for that decision [see Almeida v. Chubb Fire Security Division (1984), 5 C.H.R.R. D/2104 at para. 17840-17841]: ...it is sufficient for a complainant to establish that ~he prohibited ground of discrimination constituted only one among a number of factors leading to the decisionsl which are the subject matter of the complaint .... although the prohibited ground of decision making must have some causal role or influence in the decision made, it need not be the exclusive cause of or influence on the decision. Indeed,-as is suggested in Bushnell itself, it is not necessary to establish that the prohibited ground was the main reason for the decision in question. 38498 I cannot categorically say that Mr. Basi would have received the position but for the 185 discrimination; however, I can say -that the circumstantial evidence satisfies me that discrimination played a part in the employer's failure to offer it to him. (Emphasis in original) 30. We were asked to find that there was no credible explanation from Mr. Small with respect to his actions, especially his having prepared two assessments of the grievor on the same day in the manner above described, and his attempts to avoid disclosing what he had done to Mr. Lumley. 31. In response to an anticipated argument that there was a bona fide competition and that there was a good faith effort, at every level, to compile accurate and meaningful information about Mr. Lumtey, it was submitted that the Employer would have to demonstrate the bone fides of Mr. Small and Ms. Doherty in this regard, and the evidence was clear that their efforts were lacking in this regard. Mr. Small endeavoured to conceal from the grievor vital information as to how he carried out his responsibilities as part of the process. He also tried to hide the .fact that he had completed two assessments. Accordingly, the Board was asked to make an adverse inference that race played a 186 role in the decision making process. Ms Doherty's evidence of her lack of involvement with Mr. Small on November 23, 1990 with respect to the preparation of Mr. Lumley's assessment was said to be similairty lacking in credibility, as was her treatment of Mr. Lumley in overlooking his record of achievement. 32. It was submitted that in allowing the 9rievance the Board should order that Mr. Lumley be compensated for his loss as a result of his not being placed in the management development program, as well as for non-economic loss arising from the illegal discrimination "perpetrated" against him, and that the Board should remain seized in the event that the parties are unable to work out the terms of the relief. Argument for the Employer Mr. Raymond made the following submissions: 1. Reference was made to paragraph 5 at pp. 53-4 of the interim decision: 5. Because of our limited jurisdiction to review management's exercise of 'its 187 exclusive function with respect to training and development, the evidence that we hear must be restricted to whether Mr. Lumley was discriminated against on the basis of his race. If he was, then the decision could not be said to have been made in good faith. As was noted in Bousquet, [541/90 etc.] however broad are management's rights with respect to carrying out the exclusive functions assigned to it under the Act, it cannot act in bad faith. Merely because the training position was a management one, does not alter the fact that the Employer, in the case before us, was determining a matter encompassed under s.18(1) (b) "training and development." The function was being exercised with respect to bargaining unit personnel under management's rights pursuant to s.18(1) (b) of the Act. To allow the Employer to decide which bargaining unit employees will receive training and development opportunities while engaging in discriminatory practices based on the race of employees would permit the Employer to carry out its rights in bad faith. It could never have been the intention to immunize management from challenges based on making decisions founded on "discrimination practiced by reason of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, or handicap, as defined in s.9(1) of the Ontario Human Riqhts Code .... "Such acts of discrimination are prohibited and cannot be equated with the kind of social discrimination used in the example given by counsel for the Employer. 2. This was not a regular competition process designed to identify and select people for a management development program. 188 3. Reference was also made to paragraph t, at p. 52 of the interim decision: 1. In accordance with the particulars furnished by counsel for the Union, the grievance is limited to one claiming that the Grievor was not granted an interview for discriminatory reasons based on his race. Reference was also made to paragraph 17, at p. 11, of the interim decision: 17. According to the Grievor he first came to the conclusion that there had been a violation of article A.1 based on "discrimination practised by reason of race, ancestry ... cotour, ethnic origin ... as defined in section 9(1) of the Ontario Human Rights Code (OHRC)" between the date, in late May of 1991, when he was given the two documents referred to at his meeting with Mr. Small, and June 19, 1991 when he filed his grievance. He regarded the documents as representing very unfair negative commentary with respect to himself. His conclusions were reinforced as a result of conversations he had with two other black candidates for the development program who were similarly upset because of their perceptions that they had been discriminated against. He believed that his conversations with the other black candidates had taken place between May 31, 1991 and June 5, 1991, the latter date being the date of Exhibit 4. .The two documents referred to were Ms. Doherty'$ memorandum dated November 19, 1990, and Mr. 189 Small' s first assessment prepared on November 23, 1990 (the more positive one). 5. Mr. Lumley believed, on the basis of Ms. Doherty's assessment and the first assessment of Mr. Small that he had been'discriminated against based on the "negative commentaries", contained in those documents. 6. Mr. Lumtey regarded his treatment at the hands of a number of sen~or managers at the MTEDC to have been unfair, with reference being made to Ms. Doherty, Mr. Small and previous managers, Mr. Stevens and Mr. Ellis. Mr. Lumley regarded anyone who did not view him as an "exceptional correctional officer" as having treated him unfairly because he was black. 7. Mr. Small's evidence was that he had prepared two assessments of Mr. Lumley and of all other candidates on November 23, 1990~ It was submitted that if Mr. Small intended to discriminate against Mr. Lumley and the other black candidates, he would not have to have prepared two separate assessments to achieve this purpose, and would have been a "fool to do so." 190 8. Mr. Small was said to have testified that he carried out a first assessment of the skills and abilities of the candidates he was responsible for on the understanding that he miqht be called upon later to provide an assessment for the selection panel, and he understood that that was part of the standard procedure to'be Carried out by him as a supervisor responsible for assessing candidates in a job competition. He was later informed by Ms. Doherty that the assessment was very important and was needed immediately. Accordingly, he undertook a more "in-depth" review, and spoke to some managers and changed some of his assessments. The second assessment was carried out because Mr. Small had had little direct contact with Mr. Lumley and concluded that he needed input from front line managers who had a good deal of experience working with Mr. Lumley. , 9. Mr. Small had to assess three correctional officers: Mr. Lumley, Ms. Williams and Paul Larocque. It was noted that Mr. Lumley and Ms. Williams are black, and Mr. Larocque is white, although, based on Mr. Small's assessment, Ms. Williams "finished" ahead of the other two candidates. Mr. Larocque received 7 1/2 points and 191 Ms. Williams received 10 1/2 points. Based on the nine points that were related to Mr. Small's assessment, Ms. Williams received 5 and Messrs. Lumley and Larocque received 2 points. 10. It was suggested that Mr. Small was not in a position to know how many of the total of 19 points would be given to any candidate that he assessed, and he. would not know how many points would be awarded based on his assessment. It was suggested that'looking at the assessments prepared by Mr. Small, .Ms. Williams received the most positive one. 11. It was suggested that the Board ~ake notice that a black female candidate was more likely to be subjected to racism than a black male candidate, as she had two societal barriers to overcome in her quest for advancement. 12. It was suggested that Ms. Doherty had less direct contact with Mr. Lumley and would therefore confer with managers to obtain input from them. It was also pointed out that Mr. Lumley agreed with the suggestion made to him in cross-examination that, prior to his being given her memorandum of 192 November 19, 1990, there was no reason that he could think of that Ms. Doherty would maintain a discriminatory attitude ~oward him ° It was noted that Ms. Doherty, in her assessments of all candidates, recommended that Mr. Daley be chosen for the program. And it was recalled that Mr. Daley was a manager at the time of the competition and happened to be blackJ It was suggested that if there was any intention to discriminate against blacks, Ms. Doherty and Mr. Small were not aware of it and did Sot participate in it or, certainly, were "not very good at it." it was submitted that Mr. Small and Ms. Doherty, in various ways, sought the promotion of Ms. Williams and Mr. Daley, and their assessments should be viewed as being positive. Mr. Lumley was the only black candidate who did not get any support from Mr. Small and Ms. Doherty. 13. It was noted that Mr. Wal!en, the Regional Personnel Administrator, did not know who Mr.· Lumley was until after the completion of the competition, and had no idea he was black, and therefore could not have discriminated against him for that reason. 193 14. Mention was made of the fact that the grievor had indicated that there was systemic discrimination within the Ministry, and he regarded the actions taken against him as having their source in some form of unexpressed Ministry policy. It was submitted that Mr. Lumley had made a "bald" allegation without any supporting evidence for a "fanciful" claim relating to a "grand Conspiracy" on the part of the Ministry against black candidates. 15. It was suggested that when the facts were examined, the Board should find that they "simply" showed a "confused" man whose only justification for concluding that he was not successful in the competition was the fact of his colour or race. In order to accept Mr. Lumley'S conclusion, it would be necessary to overlook a significant objective lack of qualifications on his part for selection into the program: he was said not to be managerial material, which became manifest~.as he gave his evidence, during which time he was very often unable to answer direct questions responsively. It was also clear'that he did not understand the process to be followed. Nor did he understand the 194 factors that would be utilized in the assessement process. 16. Reference was made to examples where Mr. Lumley had shown himself to be confused as to the actual requirements set out in the opportunity bulletin: (1) his mistaken belief that Ms. Doherty had no right to evaluate him; (2) his mistaken belief that Mr. Small had no right to evaluate him; (3) his mistaken belief that only his direct supervisors, even those in competition with him, should have evaluated him; (4) his mistaken belief that everyone who applied in the competition would receive an initial interview at the MTEDC; and (5) his mistaken belief that he did not have to carefully read the opportunity bulletin and follow its requirements. 195 17. Reference was made to the fact that the opportunity bulletin (p. 2) stated that the applicant was to submit an application and r~sum~ to the Superintendent at his/her institution. Instead, Mr. Lumley addressed his application to Mr. J. Morris, Area Personnel Administrator, Metro Region. Mr. Lumley was the only applicant who addressed his application in that way. 18. The applicants were required to state their individual expectations with respect to the program, and Mr. Lumley did not do so, and, if he did so in some fashion, his statement was "deficient." 19. Mr. Lumley did not consent, as he was required to, to the release of his personnel file. 20. Re~erence was made to Mr. Wallen's explanation for the failure of correctional officers to be selected for the pro,ram because their day-to-day functioning would not be a useful indicator of suitability for a management position, and that the process might have been unfair in attempting to assess their abilities without an aptitude test. However, unfairness to all candidates who 196 were correctional officers would not mean that they were discriminated against in an illegal manner. 21. Of the nine applicants from MTEDC supervised by Mr. Small, six did not qualify for an interview, and that this represented a higher percentage of "failure" compared to the average of the candidates who were interviewed (29 of 71). This was a function of Mr. Small's group of candidates not doing well, whether they were black or white. Mr. Small may have been a "harsh" assessor and he may have lacked an understanding of how to assess the nine areas assigned to him, but "harshness" does not amount to illegal discrimination, because all applicants assessed by him were treated equally in this regard. 22. In reviewing the allegations made on behalf of Mr. Lumley: (1) that he was qualified; that he was not selected; and 197 (3) that there were no other candidates who were more qualified than he was, and that~the only distinguishing feature between himself and the successful candidates was his colour, it was submitted, looking at the assessment sheet found at Tab 4 of Exhibit 9, that Mr. Lumley had been scored on an objective basis. There may have been excellent reasons for choosing the criteria relating to attendance, but this matter was not pursued by the Union in cross-examination. 23. Awarding Mr. Lumley no points for his statement of career objectives in his covering letter was warranted. He said almost nothing about his career objectives, and Mr. Datey stated: As the successful candidate in this program, I look forward to the challenge and exposure that this opportunity could offer me by improving my present skill levels and general marketability for a permanent place in the new and dynamic Justice Policy Field. (Tab 9, Exhibit 9) Mr. Daley only received one-half mark for his statement. It was submitted that Mr. Daley's statement of career objectives was clearly superior to Mr. Lumley's. 198 24. Mr. Lumtey received a half point for his covering letter, and Mr. Small said that it should have received no points. 25. Mr. Lum!ey was given one-half point under the heading of "Communications." Based on the evidence of the written materials submitted by him and of the evidence that he gave, one-half point was "charitable." 26. In order to obtain a score of 14.5 and meet the interview criteria, Mr. Lumley had to receive a perfect score on the remaining criteria. 27. Mr. Mackinnon received two zeros in the last nine categories. 28. Mr. Larocque got two points on the last nine categories; Ms. Williams received five of nine points; Ms. Buhagiar received seven-and-a-half of nine points; and Ms. Challis, who was not evaluated by Mr. Small, received eight-and-a-half out of nine points. 199 29. None of the' candidates evaluated by Mr. Small received the score required by Mr. Lumley in order to pass the points threshold for an interview. 30. Even employing the first, and more positive assessment prepared by Mr. Small, Mr. Lumley would "still be sadly short" of the required score to entitle him to an interiew. 31. Even if Mr' Lumley had received'two points with respect to Ms. Doherty's letter, he would ~till not make the 14.5-point threshold. 32. Referring to the second part of the test relied upon by the Union, it was submitted that because Mr. Lumley had not been granted an interview, it could not be asserted that he was not selected at the end of the competition. 33. Referring to the third part of the test relied upon by the Union, it was suggested that there was no way of knowing that the grievor was no more or less qualified than any of the candidates who were interviewed. The Union had not established that a single candidate was no more qualified than the grievor. 200 34. The Union requested that the Board allot points to the ~rievor that he did not receive on th~ evaluation by the selection committee and that, if this were done, he would be "qualified.,, The Employer submitted: (1) that the evidence demonstrated that Mr. Lumley never crossed the point threshold that would entitle him to an interview, and (2) if the process was flawed, it would not be possible to kaow where the line should be drawn if all candidates came before the Board and requested that their cases be re- assessed with a view to raising their point total. It was suggested that in order to succeed, the Union would have to produce a candidate, who was not black, and who was no more qualified than the grievor, which it did not do. 35. It would be improper for this Board to review the scoring and accept the submissions that the grievor ought to have received at least 14.5 points and was therefore as qualified as other persons who had received 14.5 points. It was submitted that the Board could not know if that was the case. 201 36. It was submitted that the managerial skills the grievor said he acquired in Jamaica were stale, as they were acquired prior to 1981. 37. It was submitted That the evidence of Ms. Doherty and Mr. Small could be reconciled. Mr. Small testified about what had happened on November 23, 1990, and he had a detailed recollection of what happened on that day. He did not have a detailed recollection of what had happened in the course of the process for the competition being carried out. 38. Ms. Doherty was in a position to listen to Mr. Small's evidence, and she was candid in her answers. She said that she had no recollection of speaking to Mr. Small on November 23rd, and said that it could have been her secretary who made a telephone call to Mr. Small. No one asked Mr. Small if he spoke to Ms. Doherty or to her secretary. The only inconsistency related to whether Ms. Doherty and Mr. Small spoke to each other. Ms. Doherty was aware of what Mr. Small had testified to, and she still gave the answer: that she could not recall any conversation with Mr. Small on November 23, 1990. 202 39. It was submitted that Ms. Doherty's evidence as to what documents she saw before she prepared her memoranda to the competition panel was insufficient to discredit her. The most that could be gathered from her evidence is that she had a poor recollection of a particular event. The fact that she was wron~ when she said that she had Mr. Small's assessment before her when she wrote her memoranda to the selection committee did not mean that she was not telling the truth or that she was trying to mislead the Board. It was submitted that the incidents were five-years-old when she testified, and it is not unexpected .that there would be some difficulties in recollecting events of that time. 40. Reference was made to OPSEU (Lanoue et al), 89/91 etc. (Waisgiass) decided January 9, 1992, at p. 6: In any event, the essence of equity is not equal treatment, which would treat everyone the same even when they are not the same. in this case, it is not.an act of inequitable discrimination to make distinctions between employees re~arding eligibility for training which is based upon objective criteria of their qualifications to receive such training. 203 41. If the Board concludes that the Union has made out a prima facie case on behalf of Mr. Lumley, the Employer has demonstrated, on the evidence of the three witnesses called by it, especially Mr. Wallen, that the decision not to interview the grievor was in no way based on or motivated by considerations of race or colour. The decision was an appropriate one that was based on valid considerations. Reply Argument of the Union Mr. Blair made the following submissions: 1. In response to the argument that it would be' necessary to explain away the case of Ms. Williams in order to conclude that Mr. Lumley had been discriminated against because of his. race or colour~ it was submitted that the fact that white candidates were given worse scores than Ms. Williams did not speak to the race or colour issue, and it was unnecessary for Mr. Small to give every white candidate a higher score than every black candidate for the Board to find discrimination on the basis'of race or colour. 2. A witness who repeatedly insists on furnishing a detailed recollection of events and then is shown ......... to be wrong is not merely mistaken. In the cases of Mr. Small and Ms. Doherty, it is more likely that they fabricated details in order to suit their positions. 3. Referring to the submission with respect to the Union's alleged failure or inability to demonstrate that the grievor was as equally qualified as successful candidates for the managemen~ development program who were not black, it was submitted that the Employer cannot be permitted to rely on the arbitrary or improper nature of its own process in order to defend against allegations of discrimination. In effect, the Employer has stated that the process carried out by its representatives was so flawed that the Union cannot establish that the grievor was no less qualified than a successful candidate who was not black. If the Employer was correct, then the Union could not "catch up with the moving goal post." Discussion and Decision 205 1. This is a case where serious allegations have been made by Mr. Lumley, not only against Mr. 'Small and Ms. Doherty, but against the Ministry and other of its employees, claiming there was systemic discrimination that manifested itself in his being denied an interview in the competition because of his race or colour. The evidence was frequently contradictory, not only between that of Mr. Lumley and the witnesses called on behalf of the Employer, but between that given by the latter witnesses. The argument of counsel for the parties was also lengthy and complex, and many of the submissions were based on how each counsel viewed the evidence. We have therefore found it necessary to review the evidence in some detail in order to explain the reasons for our conclusions. This has resulted in a very long decision. 2. Both counsel acknowledged that the task before the Board is not to determine whether the competition was properly carried out, as would be the case if this was an ordinary competition case. For the reasons explained in the interim decision, we are limited to deciding whether Mr. Lumley was denied an interview in the competition process for the 206 management development program because of his race or colour. ' ...... 3. This means that the Union could not succeed by merely showing that the Employer had failed to carry out the processes associated with the competition as if it were one for a bargaining unit position governed by the provisions of article 4.3.1 of the collective agreement: In filling a vacancy, the Employer shall give primary cQnsideration to qualifications and ability to perform the required duties. Where qualifications and ability are relatively equal, seniority shall be the deciding factor. Because of the limited jurisdiction of the Board in this case, the grievor could not succeed merely because the Employer carried out a flawed process: overlooking relevant evidence available to it that bore on the decision to be made; acting on irrelevant evidence, or arriving at a decision that was unreasonable in the sense that it could not be reasonably supported by the relevant evidence that it should have reviewed. If the process was carried out in bad faith, a grievance alleging such bad faith could be adjudicated by the Board. See Bousguet, 541/90 etc. A decision made contrary to the anti-discrimination provisions of the Code would, perforce, be made in bad faith. The 207 grievance before us is founded on such an allegation. Its success is also limited to establishing that species of bad faith (discrimiation on the grounds of colour or race), and no submission was made to us that relied on any other allegation of bad faith. 4. Nevertheless, a flawed process may, in certain circumstances, furnish circumstantial evidence of unlawful discrimination contrary to the provisions of the Code. The flaws in the process may be so egregious as to point to there being illegal acts of discrimination. 5. As is noted in O'Malley and Basi, establishing acts of direct discrimination contrary to the provisions of the Code'is not an easy task. Very few people of any sophistication will blatantly engage in acts of direct discrimination, because they know that they can no longer do so with impunity. In order to avoid being found guilty of engaging in illegal acts of discrimination, persons frequently engage in more subtle behaviour intended to disguise their real motivation(s). There will be occasions.~hen the denial-of an employment opportunity will be explained on the basis of what would appear to be blameless 2O8 reasons: the complainant just does not have the necessary skills and abilities to be seriously considered. At some point, the adjudicating tribunal must consider whether a flawed competition is merely the manifestation of ineptness, untainted by illegal discrimination, or is en~aged in as a means of discriminating against a candidate because of his/her race or colour. 6. There may be illegal discrimination even in the absence of a c~nscious intention to discriminate. Most people do not think of themselves as racists; they believe that they treat all people equally, even if they are "green," as Ms. Doherty stated. Most people wish to believe that they give equal treatment to all persons without any consideration, positive or negative, of a person's race or colour, thus honouring the goal of equal opportunity for all persons competin~ to achieve their carreer objectives. 7. With the best of intentions, and without any wish to discriminate in employment on the grounds of an applicant's race or colour, a person may harbour unconscious feelings which unintentionally lead to illegal discriminatory behaviour. For example, 209 without realizing it, a person responsible for assessing a candidate may view a university degree from a predominantly black institution as being inherently of lesser worth than a degree of the same kind obtained from one that is not. Without realizing it, a person may discount management experience at a senior governmental level obtained in a predominantly black country as being, for that reason, an unsubstantial basis for assessing managerial potential. Where such unconscious feelings manifest themselves in the course of an employment competition, they could lead to a finding of illegal discrimination in employment based on factors of co!our or race. 8. Under the Code, Mr. Lumley was entitled to equal treatment in employment and not to be discriminated against on the basis of his race or colour. On the facts before us, there was no evidence of any conduct indicating that anyone associated with the competition~had directly disclosed an intention to discriminate against Mr. Lumley on the basis of his race or colour. Mr. Lumley felt very strongly that there were acts of direct illegal discrimination against him in the competition because of his race or colour on the 210 part of a number of persons who worked for the Ministry, most notably Ms. Doherty and Mr. Small, and that such discrimination was a manifestation of systemic discrimination that affected the Ministry from top to bottom. He viewed almost every aspect of the competition to be tainted by acts of illegal discrimination, including the marking system associated with the screening process, and the actions of Ms. Dogherty and Mr. Small in carrying out their roles as they related to that process. The principal basis for his conclusion relating to the existence of systemic discrimination, was his observation that there were few black persons being promoted into managerial positions, especially higher ones, throughout the Ministry. This latter allegation was not seriously pursued, and there was no evidence put before us, save for the bald assertion that blacks were underrepresented in management positions, particularly higher ones, that would warrant the conclusion that the grievor wished us to arrive at. We do not wish to gloss over the serious problem of racism or to suggest that it does not exist in the Ministry. However, if such allegations are to be seriously pursued, they must be based on more than unsupported 211 allegations. Where illegal discrimination exists, it should be vigorously pursued and every attempt .......... made to root it out and to rectify its effects. The cause of attacking illegal acts of discrimination is so important that it should not be undermined by unsupported assertion, In doing so, a noble and important cause is harmed. Furthermore, most employers and employees are sensitive to allegations that they engage in illegal acts of discrimination or that the representatives of those employers have created a culture of systemic and illegal discrimination based on any of the prohibited grounds, including race and colour. Such serious allegations should not be made in an unsupported manner. 9. In the circumstances, we must focus on the allegations, based on the conduct of Ms. Doherty and Mr. Small as representatives of the Ministry. · From the evidence, we accept as a fact that no member of the selection committee had any idea as to the colour or race of any candidate, and there was no indication that any of them knew that Mr. Lumley was black. Such flaws as exist in the development and application of the rating system used to screen out candidates are not indicative 212 of an intention to screen out any candidate because of his/her colour or race. Nor, whatever ....... their flaws as aids in the process, are the instructions prepared by the Program Committee (selection committee) establishing ~uidlelines for the preparation~of assessments by superintendents (such as Ms. Doher~y} and supervisors (such as Mr. Small). There was no evidence to suggest that the screening process established by ~he selection committee was consciously or unconsciously created with a view to'discriminatin~ against candidates because they were black, and it did not do so in practice. Nor was it suggested that the criteria, neutral on their face, had a disproportionate, discriminatory impact on black candidates because they were btack~ If a finding of illegal discrimination affecting Mr. Lumley because of race or colour contrary to the provisions of the Code and the collective agreement are to be found in this case, it must be based on the words and actions of Ms. Doherty and Mr. Small. There was nothing in what they said or did that would indicate, a direct intention on either of their parks to discriminate against Mr. Lumley because he was black. We are satisfied 213 that Ms. Doherty and Mr. Small honestly believe that they do not harbour discriminatory sentiments, nor did they display any intention to discriminate against people bacause they are black. However, that docs not mean that their words and actions could not be found to be based on' illegal discrimination. We must also scrutinize their words and actions to see if they disclose the existence of unconscious, unintended discrimination against Mr. Lumley because of his race or colour. 11. The essence of discrimination on grounds prohibited by the Code, including discrimination on the basis of race or colour, is its negative. impact on the dignity of human beings. To be the subject of unequal treatment based on distinctions relating to colour or race represent an affront to a person's dignity and sense of self respect. Every person is entitled to be treated as well, or as badly for that matter, as other persons who are only distinguished from them on the basis of colour or race. 12. It is sometimes overlooked that discrimination on grounds prohibited by the Code will still be 214 illegal and contrary to the Code where a person of colour is offered something "better" than everyone else. Perhaps this is because it is not very likely that something "better" will be offered. An employer could not successfully raise a defence to a complaint that it was discriminating against a person of colour in not treating him/her equally with other applicants for a position because of that applicant's colour by stating that it had offered to enter into a "better" contractual arrangement wi~h the complainant. The arrangement would provide the complainant with another position at another location with better prospects for advancement, more pay and superior benefits and a safer and more attractive working environment, if only he or she will not press their application and refrain from relyingon the Co_p_~. This is because illegal discrimination has "the effect of limiting an individual's or a group's right to the opportunities generally available because of attributed.rather than actual characteristics." It does not matter that a "better" opportunity is offered to that person. He/she is entitled to be treated in the same way (as well or as badly) as are other persons. The immediately-preceding quotation is taken from the 215 Abelta Report on Equality in Employment, and was quoted by Dickson C.J. in Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] i S.C.R. 1114, better known as the Action Travil A.T. des Femmes case, at pp. 1138-39-, as quoted in Andrews v. Law Society of British Colun~ia, [1989] 1 S.C.R. 143 at pp. 173- 4. 13. In Andrews, at pp. 174-5, McIntyre J. stated: There are many ... statements which have aimed at a short definition of the term discrimination ... I would say then that discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available ~o other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual's merits and capacities will rarely be so classed. 14. Based on the definition of discrimination in Andrews, which arose in the context of a Charter 216 case dealing with section 15(1), but which is applicable to cases involving the Code, Mr. LumleY has the right no~ to be discriminated against in the manner described by McIntyre J. If Ms. Doherty or Mr. Small made a distinction, either consciously or unconsciously, with respect to personal characteristics attributed to Mr. Lumley solely on the basis of the fact that he was associated with a group, in this case those who are black, then in the words of McIntyre J., this "will rarely escape the charge of discrimination." However, if the distinction is based on Mr. Lumley's "merits and capacities," which would include his strengths and weaknesses relevant in the competitioin, then it will, again in the words of McIntyre J., "rarely be so classed." 15. The Union, on behalf of Mr. Lumley, has submitted that the distinction that led to Mr. Lumley's'not being given an interview for the development position was based on the fact that there were characteristics attributed to him because he was associated with a group: black people. Mr. Blair argued that the distinction was int'entional, but also stated that it did not matter whether it was, because, intentional or not, the evidence had 217 demonstrated that it was made on grounds relating to personal characteric~ics attributed to'Mr. Lumley because he was black, and it was assumed that black people are inherently less capable of assuming managerial positions. In the result, Mr. Lumley suffered from a withholding or limiting of access to opportunities, benefits and advantages available to the other non-black applicants. He was entitled to the opportunities, benefits and advantages available to non-black applicants which need not be of any particular quality. The significant thing is that he was entitled to what they were entitled to, no more and no less, and could not be deprived of the access to the opportunities, etc., because of personal characteristics attributed to him solely on the basis of the fact that he is black. 16. The absence of' direct evidence in the nature of statements made orally or in writing indicating that Mr. Small and/or Ms. Doherty were engaging in the kind of stereotypical ~hinking that attributes characteristics ~o an individual solely on the basis of association with a group does not end the matter, we must also examine the relevant evidence to see if there is circumstantial 218 evidence to show that their conduct was tainted by the existence of the kind of stereotypical ......... thinking identified by McIntyre J, in Andrews, which, although unconscious, affected their actions in a prohibited manner. 17. For example, if it appears from Ms. Doherty's evidence that she had discounted or undervalued Mr. Lumley's managerial experience with the Government of Jamaica, where his responsibilities included briefing a person of deputy ministerial rank, one'would have to wonder whether she was making a distinction based on her unwarranted belief, albeit unconscious, that holding a middle management position in a government that is predominantly black is no indicator that the holder of that position, who also happens to be black, has management potential. If she did, then her actions would appear to be caught by McIntyre's statement that such distinctions, as they appear to be "based on personal characteristics attributed," in this case to Mr. Lumley "solely on the basis-of [his] association with a group will rarely escape the charge of discrimination." 18. The Employer may endeavour to show that Ms. Doherty's actions, both orally and in writing, in relation to her 219 involvement in the competition, establish that her focus was only on Mr. Lumley's "merits and capacities" both positive and negative. In this case counsel for the Ministry submitted that even if she made errors in carrying out her responsibilities, those errors were made in good faith and were absent any taint of illegal discrimination based on Mr. Lumley's colour or race. Why she found evidence of involvement with the United Way and other workplace committees a more compelling indicator of suitability for working in a management position than workin~ in what was obviously a responsible managerial position in Jamaica calls for a plausible explanation. 19. Ms. Doherty endeavoured to explain her attitude toward Mr. Lumley's experience while employed by the Government of Jamaica by stating~that it was old experience datin~ from 1981, and therefore stale. Although Mr. Lumley's experience with the Government of Jamaica was then approximately nine years old, it ought to have been a clear indicator that he could and did function in a managerial post at a fairly high level. For Ms. Doherty, participation in workplace committees and in the campaigns within the workplace of charitable organizations, such as the United Way, was a means 220 of sh~wing an interest in and the capacity to move into a management position. Mr. Lumley having shown this capacity in a real work situation was given no weight by her because it happened too long ago. Certainly,~ in writing her memorandum, Ms. Doherty indicated that she gave no weight to Mr. Lumley's experience in government as an indicator that he was a person of managerial potential. What reason did she have to belieVe that although he had previously done managerial work at a fairly high level that he had somehow lost that ability by 19907 20. In order to be able to determine the significance-of the evidence, it must be examined in all of its parts. We noted, above, that errors, even serious ones, in the actions of those involved with the competition are not enough to show illegal discrimination. However, where those errors are so numerous and egregious, they may, along with other evidence, support a finding that they were not committed in good faith and'represent circumstantial indicators of illegal discrimination. 21. In this case, Ms. Doherty testified that she regarded Mr. Lumley to be a mediocre correctional officer, and at one point described him as being "blah." In 221 Webster'-s New World Dictionary - Third College Edition, "mediocre" is defined as: "l neither very good nor'very bad; ordinary; average; 2 not good enough; inferior." Coupled with the statement "blah" and her other comments, it was clear that she regarded Mr. Lumley not merely as being average but as being an inferior correctional officer. It was also clear that her assessment was not limited to her view of his management potential. She did not comment on why her assessment varied to such an extent from that found in Mr. Lumley's most recent PPR (Exhibit 10) or why she regarded it as being stale because it was two years old. There was no evidence to refute that of Mr. Lumley that his PPR's have, save perhaps for his firSt one, rated him as being, a~ least, a good correctional officer. 22. Ms. Doherty testified that she was looking for some indication that a candidate had an ambition to move · into a management position with the Ministry. Mr. Wallen was frank in acknowledging that, given the structure of the workplace where correctional officers function, there would be very little opportunity for a correctional officer, in the peformance of his/her duties, to manifest the kinds of skills that would show management potential4 He pointed out that non-managers 222 who were successful in obtaining interviews had had a number of previous assignments to managerial positions which would enable their superiors to better assess their managerial potential. Nevertheless, invitations were addressed to all employees, and there were .certainly ways cf ascertaining whether a correctional officer had other experience that clearly bore on his/her management potential~ Ms. Doherty emphasized Mr. Lumley's apparent tack of management potential based on her observations, as limited as they were, and input from persons unnamed, without any indication of what information was given to her. It is difficult to know why she found such significance in the fact that Mr. Lumley had not ~iven any indication of management potential as a correctional officer, when Mr. Wallen stated that the very nature of a correctional officer's job limited severely the opportunities for showing the kinds of innovation that one might look for when seeking management potential. Nevertheless, she did not re~ard Mr~ Lumley studying for a B.B.A. de~ree at York University while he was workin~'-as a correctioinal officer as representing any indication that he had such an interest or possessed management potential. University degree courses in business are training grounds for managers and future managers in a variety of settings, both within a business'and a non-business 223 environment. Most of the courses are the same as are taken by persons who are enrolled in M.B.A. programs. Ms. Doherty said that she read Mr. Lumley's supporting materials, which indicate that he had taken or was enrolled in courses in Organizational Behaviour, Government Structure, and in Human Resources Management. It is difficult to believe that she would honestly disregard this evidence as an indicator that Mr. Lumley was very interested in obtaining a management position, and enthusiastically accept such activities as chairing the United Way committee in the institution as such an indicator: See her memorandum for Ms. Cannon found in Tab 14 of Exhibit 9. We in no way disparage the significance of such important committee work, however, it should have been obvious that Mr. Lumley was ~aking a rigorous degree program aimed at producing managers, and that it would not be easy to work a full shift and then proceed to York University to study the subjects noted and such other subjects as Management Accounting, Pinancial Accounting and Macroecononmics. - 23. The evidence of Ms. Doherty and Mr. Small as to the incidents of November 23-, 1990 is puzzling. This is especially so in a Ministry that prides itself on keeping accurate records of incidents that may have to 224 be gone into in the future. Ms. Doherty had no record or recollection of who she spoke to, what she asked them or what they told her, except for some impressionistic recollections. Of the two, Mr. Small was more certain in his recollection about his interactions with Ms. Doherty on that day. He testified that he met with Ms. Doherty in the morning of November 23, 1990, when he received the assessment form and was instructed to complete it with respect to a list of employees he was given. We also accept his evidence that he spoke to her later in the day over the telephone, after he had completed the assessments, and was told that he should get the assessments to her that day, and as soon as possible. Ms. Doherty stated that she thought it was her secretary who placed the call and spoke to Mr. Small. The secretary was not called to confirm that this is what had happened. We also note that Mr. Small was similairly vague about who he spoke to before completing a second assessment with respect to Mr. Lum!ey, and had no significant recollection of his questions or the answers received, except, again, for certain impressionistic recollections. 225 24. Both Ms. Doherty and Mr. Small were experienced managers and understood their responsibilities in performing assessments. They knew in June of 1991, that a grievance had been filed by Mr. Lumley, and knew earlier that he was both unhapppy with his treatment and was pursuing them for an explanation. They did not, until much later~ give him (through Mr. Small) the assessments that they knew he was entitled to, nor did they apparently take any steps to speak to the persons they say they spoke to, so as to be able to testify as to who they+were. If that evidence had been preserved, the managers could have been called to confirm the nature of their input. Mr. Small was in a position to preserve the first assessments. It is hard to believe that he did not speak to Ms. Doherty before meeting with Mr. Lumley in late May of 1991, to inform her that he was to meet Mr. Lumley and intended to give him her memorandum and his assessment, at that time. It is difficult to believe that he would not have recorded'the events of that meeting and that he would not have discussed them with MS. Doherty. 25. More puzzling, is the preparation of the second assessments by Mr. Small. Because no attempt was made 226 tO preserve the first assessments, we have only Mr. Small's evidence that they were prepared for all Of the ....... candidates assigned to him. Mr. Small's proferred reason for preparing the second assessments is unpersuasive and self-serving. We wonder why he changed his assessment with respect to Mr. Lumley's oral expression skills, to say that he was "sometimes difficult to understand," when this was not his own experience. We also wonder why he apparently did not pursue with his alleged source what was meant by ,,difficult to understand." We are left to wonder if it was Mr. Lumley's Jamaican accent that was the subject of the commment, notwithstanding Mr. Small's evidence that he regarded the statement to refer to Mr. Lumley's syntax. 26. We wonder why Mr. Small did not have before him the full ~uidelines for assessors that were sent to Ms. Doherty as part of Mr. Parker's letter of instuctions to her of October i, 1990 (See Tab 3, Exhibit 9). Mr. Small testified that he only had the list of candidates assigned to him and the assessment sheet absent any further instructions, when he left his meeting with Ms. Doherty, and that he never received any further instructions. 227 27. MS. D0herty's memoranda of November 19, 1990, are in purported compliance with the requirement' set out at p. 2 of Mr. Parker's letter of October 1, 1990, referred to above. We can only conclude that in addition to the supervisor's assessment (e.g. that of Mr. Small with respect to the grievor) provided for at p. 3 of the document attached to Mr. Parker's letter of October 1, 1990, entitled Metro Region Management Development Program, superintendents and Area Managers were also to assess the candidates using a "comprehensive evaluation ... under the ten (10) 'Assessment Criteria factors' .... "There was nothing in Ms. Doherty's evidence to show that she reviewed each of the ten criteria, in arriving at her "comprehensive evaluation." 28. We are also concerned about Ms. Doherty's continuing to maintain that she read over the supervisor's assessments before sending in her own "covering letter" (her memoranda of November 19, 1990). Although she finally agreed that she had not done so, she did so reluctantly after it had been shown to her, beyond peradventure, that her memoranda of November 19, 1990, had to have been sent to the selection panel before she received the supervisors' assessments. 228 If she had in fact read Mr. Small's assessments before completing her memoranda, it would have been possible for her to say that she had written her comprehensive evaluations after considering Mr. Small's assessments of the ten criteria. As she did not, and as her evidence gave no indication that she had reviewed each of the criteria, there is further evidence of a flawed process. 29. It is clear from the instructions sent to superintendents by Mr. Parker on October 1, 1990, that it was not necessary, or even desirable, for assessments to be conducted by persons with an imperfect knowledge of a candidate. Neither Ms. Doherty nor Mr. Small, because of their recent arrival at the institution, would have been the best persons to assess candidates. The kind of problems we encountered with Mr. Smalt's evidence was partly a function of his having to rely largely on the word of others. We do not know who those others were, and Mr. Small could not even be certain that they were hot themselves competing candidates with Mr. Lumley. In the case of Ms. Doherty, she served not only as the writer of a "comprehensive evaluation" but, at least in the case of one candidate, Don Mikel, as the assessing 229 supervisor and signed the same kind of assessment form that Mr. Small completed with respect to'the candidates assigned to him. When a superintendent not only writes the letter of comprehesive evaluation (worth two points) and completes the ten point assessment, there will be a real chance of distortion in the weight of the evaluation with respect to that candidate. It is also inappropriate for a candidate to serve as the assessor, as was Mr. Mikel for Ms. Cannon, on November 26, 1990. It does not matter whether the assessment is a favorable one. 30. In addition, Ms. Doherty did not regard training received by Mr. Lumley in management skills at the University of the West Indies as being of significance because the designation had been received a number of years ago (1980). Except for the time when the diploma was obtained, she did not indicate why the attainment of a diploma in management studies from a recognized university would not indicate a capacity for working as a manager, while serving on an 'internal institution committee would. In the circumstances of Ms. Doherty's response to Mr. Lumley's government service in Jamaica, the complete discounting of his diploma in Management Studies from the University of the West Indies as an indicator of the potential to become a manager also 230 requires a cogent explanation to show that she was not engaging in an impermissible form of sterotyping but ........ was objectively assessing Mr. Lumley's real qualities as a candidate~ 31. It is apparent that Mr. Lumley was intent on pursuing his failure to be appointed to the development position from the time he was made aware of his rejection, around the end o£ November of 1990. We are satisfied that he only succeeded in arranging a meeting with Mr. Small as a result of Mr. Curling's intervention on February 14, 1991, and Mr. Wallen's response of March 6, 1991 (Exhibit 5) . Why would Mr. Small have been so reluctant to meet with Mr. Lumley. Even after he was informed that Mr. Lumley had been directed to meet with him, he was "too busy" to do so until late in May of 1991. It is only at that time that he gave Mr. Lumley the documents that he was entitled to: Ms. Doherty's memorandum to the selection committee of November 19, 1990, and his assessment of Mr. Lumley. However, it was not the second (less complimentary) assessment, that was used by the selection committee in the screening process, but the first one that he retained. We cannot accept Mr. Smail's explanation that he somehow overlooked the fact that he was giving Mr. Lumley the first assessment. His actions are more 231 consistent with not wanting Mr. Lumley to see the assessment that was sent to the committee. Why didn't he want to do so, if it represented his honest, objective assessment? 32. We are asked to believe that there was no direct communication between Ms. Doherty and Mr. Small concerning the assessment which Mr. Small was to complete, after Mr. Small was appraised by Ms. Doherty in the morning of November 23, 1990 of his responsibility to complete the assessment forms. In order to do so, we must overlook the fact that the first assessment, although not positive, was far more so than the second one, which was more consistent with Ms. Doherty's very negative assessment contained in her memorandum of November 19, 1990. We are asked to believe that Mr. Small, an experienced and well educated manager, after completing his first assessment of Mr. Lumley on November 23, 1990, for reasons we find unpersuasive, prepared a second one that is closer'in tone to that of Mr. Doherty's memorandum of November 19, 1990. Given the number of other circumstantial indicators in this case, we wonder whether Mr. Small's preparing a second assessment of Mr. Lumley was to make it more consistent with Ms. 232 Doherty's-earlier assessment. This is a more probable basis for his having prepared two assessments than~the one Mr. Small offered: That he suddenly realized he would, rather than might, be called on to submit his assessment to the selection committee. Because he only might have to submit his assessment furnishes an insubstantial basis for completing an assessment in which he lacked confidence and which he acknowleged he knew could have a significant impact on a candidates success or lack thereof. 33. Given the instructions to superintendents and area directors given by Mr. Parker in his letter of October 1, 1990, and in the documents accompanying the letter, it would be natural to expect Ms. Doherty's memorandum containing her comprehensive evaluation of Mr. Lumley's skills and abilities under the ten "Assessment Criteria" to be consistent with the "supervisor's [Mr. Small's] assessment of [the] applicant's skills and abilities" as outlined in the assessment form. 34. Because of the way in which the issue before us was formulated, we are limited to deciding whether there was illegal discrimination on the basis of race or colour in relation to Mr. Lumley's being screened out of the selection process, We do not have jurisdiction 233 to adjudicate on whether there was a bad faith exercise of the Employer's management rights not involving illegal discrimination. 35. Mr. Lumley was of the firm belief that the discrimination he suffered at the hands of Ms. Doherty and Mr. Small was merely another manifestation of similar acts of historical discrimination suffered by the other black employees. He referred to: Ms. Williams and Mr. Datey, and to discrimination suffered by other black employees in other circumstances. Our examination of the documents prepared by MS. Doherty and Mr. Small with respect to Mr. Daley and Ms. Williams satifies us that there was an honest endeavour to evaluate each candidate's individual merits and capacities. There was no evidence that demonstrated that they, notwithstanding the fact that they were screened out and did not receive an interview, were treated in a stereotypical fashion because they were black and possessed certain negative characteristics attributed by Mr. Small and Ms. Doherty to black people. 234 36. There was a suggestion by Mr. Raymond that the significant failure of memory on the part of Ms. Doherty and Mr. Small might be explained by the passage of some five y~ars since the significant events that we have to consider. They, however, have been aware, since December of 1990 at the earliest, and March of 1991 at the latest, that Mr. Lumley was actively pursuing a concern which much exercised him, and that he would likely file a grievance if his concerns could not be assuaged. He filed his grievance on June 19, 1991. Even if nothing was done by them to that date to gather or preserve potentially important evidence, it would be expected that efforts would have been made to do so then. It should have been evident to them that if they did not do so, they would be unable to testify to such matters as who they spoke to, when, about what, what they said and what responses they received. 37. Mr. Raymond, relying on Basi, argued that we should not even proceed to consider whether the decision to refuse Mr. Lumley an interview was tainted by an act or acts of illegal discrimination based on his race or colour, because, in order for us to do so, counsel for the Union would have to establish a ~ facie case of 235 illegal discrimination by showing, first, that Mr. Lumley was qualified for the management development position, and, second, if he was, that he was at least as qualified as one of the successful candidates. 38. Mr. Raymond argued that even if Mr. Small's first assessment was relied on, Mr. Lumley would still have failed to achieve the 14.5 marks that were required to entitle him to an interview. And even if he was entitled to an interview, the Union had failed to establish that he was at least equal to one of the successful candidates. Given the shortcomings in the process as they affected Mr. Lumley, it would be unfair to assess what marks he should have received. The assessment prepared by Mr. Small had considerable weight before the selection committee. MS. Doherty's assessment was worth two marks, and would, no doubt be referred to after a candidate qualified for an interview. The weighting given by the committee to its assessment criteria were never satisfactorilly supported. To use the process as the standard to be used to establish qualification would create an unfair basis for assessing Mr. Lumley. 39. We note that in Basi, at p. D/5037, para. 38475, the means of establishing a prima facie case are not 236 limited to proving that the complainant was qualified for the particular employment, that he/she was not chosen, and "that someone no better qualified but lacking the distinguishing feature which is the gravamen of the human rights complaint subsequently obtained the position." In this case, while we are satisfied that Mr. Lumley was qualified for the development position, we regard the requirement of showing that he was at least as qualified as a successful candidate to be.unrealistic. To acceed to Mr. Raymond's argument would limit discrimination in employment on certain prohibited grounds to only those cases where relative equality with a successful candidate could be shown. On that basis, even if there was a discriminatory motive for rejecting a candidate for a position, such discrimination would not be illegal: if the complainant was not relatively equal to a successful candidate. We believe that it is not always necessary to show relative equality. Where relative equality with a successful candidate is not shown, but there is proof that an employment decision was made, in part, for a prohibited discriminatro¥ reason, that would affect the remedy, but the discrimination would be no less contrary to the provisions of the Code. To find 237 otherwise would be to allow practices that could only have the effect of discouraging applications from persons protected by the qode from certain kinds of discrimination. In Basi, at p. D/5041, para. 38498, the chairperson stated: I cannot categorically say that Mr. Basi would have received the position but for the discrimination; however, I can say that the circumstantial evidence satisfies me that discrimination played a part in the employer's failure to offer it to him. 40. In Basi, at p.D/5039, para. 38486, the chairperson quoted from B. Vizkelety, Proving Discrimination in Canada (Toronto: Carsewell, 1987), at p. 142: The appropriate test in matters involving circumstantial evidence ... may therefore be formulated in this manner: an inference of discrimination may be drawn where the evidence offered in support of it r.enders such an inference more probable than the other possible inferences or hypotheses. (emphasis in Basi) 41. Based on the circumstantial evidence found in paras. 19 and 21 to 33, of our "Discussion and Decision,'! we find that discrimination on the basis of Mr. Lumley's race or ~olour is a probable inference arising therefrom. Accordingly, we have found that the Union made out a prima facie case that the Employer discriminated against Mr. Lumley in his quest for an appointment to the Management Development Program because of his race or colour, contrary to the 238 provisions of Article A.1 of the collective agreement and of the section of the Code referred ~o in the said article. 42. Suck a case could be refuted by the Employer showing that its decision, even if based on a flawed, even significantly flawed, process, was nevetheless based on Mr. Lumley's merits and capacities and not on a distinction "based on personal characteristics attributed ... [to him] solely on the basis of association with ... [black people]." 43. We do not propose to replicate the competition. Whatever the flaws in the structure of the competition, we have not found it to be invalid because it had the effect of discriminating against black people because of their colour or race. It neither directly discriminated against Mr. Lumley because he is black or had the unintended effect of doing so. If there was illegal discrimination against Mr. Lumley in this case, it will have to be found in the circumstantial evidence referred to, above. 44. After having examined all of the evidence, including the way in which Mr. Small and Ms. Doherty dealt with 239 the other applicants, both black and white, we conclude that whatever the shortcomings in the carrying out of the process by them, it was not indicative of their having discriminated, either intentionally or unintentionally, against Mr. Lumley because he was black. 45. Ms. Doherty demonstrated in her assessment of all candidates, black and white, certain conclusions as to the factors are significant in assessing management potential, and upon which she arrived at her assessments with respect to each candidate. If there had been no evaluation of the other two black candidates in the competition, it might not have been possible for us to see that the shortcomings attributed to Ms. Doherty in carrying out their part of the process were just that: shortcomings. Whereas the reference to Mr. Lumley's "being difficult to understand at times" was suspicious, and could be · viewed as a ,,shorthand" for his being a black man with a Jamaican accent, when viewed in the context of the way the process was carried out with respect to the other candidates, both black and white, it appears that it represented an assessment, however wrong, based on Mr. Lumley as a person, rather than as a black person to whom certain attributes were attached. We emphasize, 2~0 that we d±d ~ot find Mr. Lumley at all d±fffcult to understand. 46. Similarly, having looked at all of the evidence, we are satisfied that while Ms. Doherty's overlooking the kinds of management-related subjects studied at the University level by Mr. Lumley and his management work experience was puzzling, it is consistent with her mind-set as to what factors indicate that a person can become a manager. Her views, no matter how wrong, in relation to what factors in a persons background are indicators of management potential, were not discriminatorY against black persons generally, directly or indirectly, or against Mr. Lumley specifically. Her view of what factors were relevant in assessing management potential were genuine and were not employed as a pretext for discriminating against Mr. Lumley because he is black. She was wrong in her assessment of the utility of a B.B.A. for a person seeking advancement in the Ministry in a management role, but we conclude that was an error in understanding the kind of management training Mr. Lumley was receiving in studies that was transferrable to the institution. The same can be said for her failure to appreciate the significance of Mr. Lumley's management training received at the University of the 241 West Indies, and her failure to appreciate the relationship of Mr. Lumley's experience with the Government of Jamaica. 47. Ms. Doherty testified over a considerable period of time. Her lengthy evidence satisfies us that when considering the existence of management potential in a candidate, she sees limited value in activities engaged in some time ago and in the academic qualifications of a candidate, except in the limited circumstances where they are mandated. Our conclusion that she overlooked valid and significant information about Mr. Lumley does not amount to her having done so because she intended to discriminate agains5 him because he is black or that her actions had that result. Her actions did not adversely affect Mr. Lumley because he is black, they would have affected him adversely irrespective of his colour or race. 48. The evidence satisfies us that the six correctional officers, black and white, assessed by Ms. Doherty and Mr. Small, were dealt with in the same way except for the fact that Mr. Small performed two assessments. It is one thing to conclude that an assessment left much to be desired, and another thing to conclude that it was based on illegal discriminatory distinction(s). 242 49. Similarly, Ms. Doherty's assessment of Mr. Lumley as a correctional officer, a!Zhough we find it to be wrong, ........ was based on her view of what makes for a good officer, .and not on Mr. Lumley being black. We believe that Mr. Lumley was a good CO. In Ms. Doherty's view, he didn't have the right stuff to become a manager. This was a function of her mind-set but not of her racially discriminatory mind-set. We believe that if Mr. Lumley had regularly expressed an interest in becoming a manager; asked for the opportunity to fill temporary management openings; had been more forthcoming with Ms. Doherty; served on committees; and filed more occurrence reports, she would have viewed him differently and more pcsizively. We believe that she was wrong in his case, but for reasons that had nothing to do with Mr. Lumley's co!our. 50. Mr. Small's behaviour in preparing two assessments of Mr. Lumley, and the circumstances surrounding his doing so, were a great source of concern to us. However, when viewed in context, we find that Mr. Small's actions were more probably engaged in as a misguided and highly questionable effort to make his assessment consistent with Ms. Doherty's negative one, and not as a manifestation of racial prejudice against Mr. Lumley 243 because he'is black. Hr. Small's actions were wrong, but their motivation was not racial bias. 51. It is imperative that situations of this sort should not happen again. Mr. Lumley responded in a way that is understandable. He possessed a Bachelor of Arts Degree but, more to the point, had a Diploma in Management Studies and was working toward a Bachelor's Degree in Business Administration and had been an in-house management analyst making recommendations to the Permanent Secretary, Directors and Section Heads, on the organization structures necessary to achieve operational efficiency, when he worked with the Ministry of Youth and Community Development, when he was employed by the Government of Jamaica. He had also received training in organization and methods, and worked as a management analyst, and had been an executive officer and received training, and worked in areas of personnel administration, for the Ministry of Finance, Supply Division, of uhe Government of Jamaica. After his many years of service as a correctional officer, during which he received good PPR's, he expected to receive favourable treatment in his endeavour to advance his career. 244 52. We aqcept Mr. Lumley's evidence that he was thwarted in his e~forts to secure the informatio~ that he was entitled to from Mr. Small, and that he was only able to meet with him after the intervention of Mr. Curling, some time in late May of 1991. We are satisfied that Mr. Small was aware of Mr. Lumley's concerns and, by delaying seeing him, exacerbated the situation. Whatever suspicions Mr. Lumley had at the time he filed his grievance, we can understand how he would subsequently feel upon learning, in the course of the hearing: (1) about there being two evaluations; (2) that everyone else's first evaluation had disappeared; (3) that Ms. Doherty evaluated him before reading his assessment; (4) that his management experience and education was treated less favourably than working on a committee, such as the United Way, within the institution; (5) that Ms. Doherty did not appreciate, as Mr. Wallen did, that a correctional officer would be at a great disadvantage if the only thing that was considered in his/her case was experience gained as a correctional officer; (6) that evaluations were obtained from persons unknown, at least to the extent that neither Ms. Doherty nor Mr. Small could remember who they 245 spoke to, the nature of the questions asked, in any detail, and the purport of the responses, and that they could, very well, have spoken to the same person, so that a negative-response would count twice against him; and (7) that Mr. Small gave him the first evaluation that was never sent to the selection commitSeeo 53. Nevertheless, as has been noted above, we had to make a decision as to whether Mr. Small and Ms. Doherty had merely mishandled their responsibilities and had used questionable judgment in the process, or whether their conduct disclosed evidence of prohibited discrimination. It is not merely the treatment of all other correctional officers who were assessed by Mr. Small and Ms. Doherty that has caused us to conclude that they were ~rea~ed no differently than Mr. Lumley (that is he was given equal treatment), but in fairness to Ms. Doherty, she could not be unmindful of the fact that Mr. Lumley: (a) did not appear to have carefully read the opportunity bulletin, as is shown from his having addressed his letter to the wrong person; {2) failed to address, in any adequate fashion, his career expectations; and (3) failed to give 246 permission to obtain certain information from his files. ' ....... 54. Mr. Lumley's failure to appreciate the requirements of the opportunity bulletin is also shown by his continuing insistence that he would receive, as of right, an interview within the institution. He also did not consider the limited framework established by the selection committee that would not value very highly his background of education and experience. Such a structure did not directly or indirectly discriminate against Mr. Lumley because he was black. It did so because a person, of whatever colour, with his background of education and experience, would be at a disadvantage in the competition. This was neither planned nor did it have the unintended consequence of discriminating against him because he was black. It was a function of a peculiarly weighted process untainted by racial discrimination. In evidently not carefully reading the opportunity bulletin, Mr. Lumley would be more tikel? to misinterpret the actions of those involved in the running of the competition. 55. Although we find it not..to have been motivated by racial bias manifested against Mr. Lumley, or to have had the unintended consequence of 247 discriminating against him because he was black, the conduct of Ms. Doherty and Mr. Small was an unnecessary provocation. The mishandling of the competition within t'he institution, although it did not demonstrate the existance of illegal discrimination ill this case~ bears a good deal of the responsibility for what has subsequently happened. 56. We are satisfied from the evaluations that were put in evidence that ~r. Lumley performed his duties as a correctional officer in commendable fashion. His background in management, both academic and practical, indicates-more than a potential for being able to handle a management position within the correctional service. In 5he light Of our review of the evidence, it would be unfortunate if there was a continuing failure within the institution to realize this when development opportunities arise in the future. Any benefit oX the doubt given to the actions of Ms. Doherty and Mr. Small in this case would be hard ko sustain if there was a repeat exercise and a similar evaluation of his management potential, having regard for what has been stated in this decision.about his qualifications. 248 57. Mr. Lumley should also consider the propriety of his having made a blanket condemnation of the Ministry, attributing to it systemic racist policies, while being unprepared to adduce cogent evidence in support of such serious allegations. Making unsupported allegations, relying on the flimsiest of evidence, is no way to support a worthy cause: the eradication of illegal discrimination as a factor in the treatment of employees. Statements were attributed to other candidates, but no explanation was offered as to why they were not called in support of Mr. Lumley. 58. In addition, when allegations are made that the conduct of Ministry representatives amounted to illegal racial discrimination based on race or colour, the person making the allegation should not overlook the fact that there may be objective reasons~ having nothing 5o do with race or colour, that have affected the decision. Where it appears that an applicant has not followed certain simple instructions relating to responding to a posting, or to understand the nature of the competition, he/she cannot complain i£ those evaluating the application express concern. 249 59. Accordingly, and for the above reasons, the grievance is dismissed. DATED at TORONTO this 9th day of September , 1996. M.R. Gorsky - Chairperson ' ~h'er~r M. O'Toole - Member /~'"'% Ministry of " ~ 'Correctionals Opportunity Bull n Ontario Mintst~re des s Annonce d emploi correctionnels METRO REGION MANAG~RNT DRVELOPM~NT PRQGRAM As part of the overall staff developmeht process within the Metro Region, we invite applications for the above program, the objective of which is: "THE IDENTIFICATION AND DEVELOPMENT OF METRO REGION STAFF WIT}{ POTENTIAL FOR ADMINISTRATIVE MANAGEMENT POSITIONS AT THE AM-15 LEVEL AND ABOVE." The purpose of this program is to provide temporary developmental assignments, aimed at developing/strengthening managerial skills in selected participants, in order to assist them in pursuing their interest in future administrative management positions. This is not an accelerated career development program, nor does it replace any present or future inter/intra regional or Ministry secondment, temporary assignment or employment equity programs or initiatives. .~UID. ELINES 1. Participants will be selected through'a competitive process, restricted to classified Metro Region employees. This process includes an initial screening and possible short-listing of applicants, and a subsequent personal interview of potential candidates. 2. Selected participants will undertake temporary developmental assignments within the Metro Region over a 12 to 18 month period, beginning . approximately in January, 1991. ?.. Individual assignments may vary in duration, depending upon the skill level of the position, impact of the assignment on the work place, availability of alternate assignments, etc.. 4. Program participants will return to their home position after the expiry of any given assignment. 5. A Metro Region Management Development Committee will provide ongoing co-ordination of the program and will have responsibility for terminating, at any time, the participation of any individual who fails to co-operate in meeting the objective of the program or fails to make adequate progress. 6. Individuals will be free to withdraw from the program at any time, without prejudice. .. 7. Participants on assignment to positions with higher classifications will be paid at that level on an acting basis, while those on assignment to a lower level position or a project will retain their existing classification and salary. 8. Any additional commuting expenses associated with a participant's assignment will be negotiated prior to the assignment.. 9. A formalized system of participant evaluation will be developed and "Signifi'cant and current classified or directly related experience in a correctional environment.~ Excellent work record.~'Evidence of completion of, or ~articipation in a certificate, diploma or degree program of study at a recoqnized post'secondary institution.~'Gpod oral and written communfca~ion skills. ~Satisfactory attendance record. ~.Applicants' on-the-jOb skills and abilities will be assessed in the following areas: program management, ............ planning, decision-making, initiative, thinking/conceptual'ability, analysis,synthesis, innovation, workload management, communications, interpersonal. Interested applicants who meet the above criteria are invited to submit a comprehensive resume, with overlng letter, to their Su~.erlnte. ndent/Area Manager, to be received no later than October 29, 1990.~Appll.cant's covering letter should indicate what the individual's expectations are an applying to this program and should also indicate consent to allow your personnel file to' be accessed fo-~-purposes of ~essing your qualifications. Superintendents/Area Managers are requested to forward resumes and couering letters, together with the most recent P.P,R. and recommendation by' .~ovember 16, 1990 to: . ,m File KDP-90 c/o Regional Personnel Administrator Met~o Regional Office 312-2 Dunbloor Road Etobicoke, Ontari0._~.. M9A 2E4 ?his opportunity is restricted to classified Metro Region employees. POSTING DATE: October 9, 1990 CLOSING DATE: October 29, 1990 "DEDiCAtED TO EMPLOYMENT EQUITY"