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HomeMy WebLinkAbout1996-2720.Knapp.00-03-09 Decision o NTARW EMPU) YES DE LA COURONNE CROW"! EMPLOYEES DE L "()NTARW GRIEVANCE COMMISSION DE . . SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE, (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILElTELECOPIE. (416) 326-1396 GSB # 2720/96 OPSEU # 97C093 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Knapp) GIievor - and - The Crown m Right of Ontano (Mimstn of Finance) Employer BEFORE RandI H. Abramsk." Vice ChaIr FOR THE Man MacKmnon GRIEVOR Counsel Bode & MacKmnon Bamsters & SolIcItors FOR THE Luc, SIraco EMPLOYER Counsel Legal ServIces Branch Management Board Secretanat HEARING FebruaI) 15 1999 April 27 1999 September 16 1999 November 26 1999 WRITTEN SUBMISSIONS December 3 23 & 31 1999 AWARD The gnevor Sharon Knapp alleges that he Employer acted m bad faith by denymg her the posItIOn of Data Processmg Clerk pursuant to a Job competItIOn that took place m October 1996 The Umon submIts that the competItIOn was desIgned to favour one of the successful candIdates, Rose Anne Kelly Facts The TaxatIOn Data Centre (TDC) wIthm the Mimstry of Fmance processes all of the payments related to the provmcIal retaIl sales tax, corporate sales tax, land tax, motor fuel tax, plus a number of other tax statutes, and certam lIcense payments It IS responsible for the deposIt of approxImately fifty percent of the provmce's cash flow It also processes mformatIOn for other mImstnes Annually the Centre processes between 7 to 8 mIllIon documents m relatIOn to approxImately fourteen tax statutes and works under numerous deadlInes On October 4 1996 a competItIOn for two posItIOns as a Data Processmg Clerk wIthm the TaxatIOn Data Centre was posted. The postmg stated as follows DATA PROCESSING CLERK (2) Office AdmmIstratIOn 4 Schedule 3 7 $15.23 - $16 58 per hour The Mimstry of Fmance, TaxatIOn Data Centre, reqUIres a team member to operate a number of mteractIve computer termmals utIlIzmg a wIde vanety of methods and programs to accomplIsh the transfer of data from source documents You wIll utIlIze search, replace, delete, correctIOn and update cntena to meet standards of qualIty and productIVIty 2 LOCATION Oshawa QUALIFICATIONS Demonstrated abIlIty In the operatIOn of InteractIve computer termInals (standard/nonstandard and IntellIgent/non-IntellIgent) abIlIty to operate at a keyboardIng standard of 10 000 keystrokes an hour abIlIty to complete assIgnments WIthIn a schedule of deadlInes, general knowledge of office routInes, procedures and computer proceSSIng actIvItIes Please submIt applIcatIOn/resume by October 21 11996 to FILE NUMBER FIN 328-96 Mimstry of FInance, Human Resources Branch, POBox 627 33 KIng Street West, Oshawa, Ontano L1H 8H5 AREA OF SEARCH. ThIS competItIOn IS restncted to Mimstry of FInance classIfied cIvIl servants workIng at, or whose pnncIpal resIdence IS WIthIn 40 km of 33 KIng Street West, Oshawa. Mimstry of Finance unclassIfied employees, GO Temps, and secondees employed dunng the postIng penod are also elIgIble to apply provIded they are currently workIng at, or theIr pnncIpal resIdence IS WIthIn 40 km of 33 KIng Street West, Oshawa. The gnevor at the tIme of the competItIOn, was a GO-Temp employee who worked as a Data Entry Clerk wIth the Mimstry of Finance She had worked wIth the Mimstry for vanous temporary penods begInmng In October 1993 In all, at the tIme of the competItIOn she had worked approxImately 64 weeks for the Mimstry or 16 months On October 8 1996 she applIed for thIS competItIOn. In all, the Mimstry receIved twenty-two applIcatIOns To determIne whIch candIdates would be IntervIewed, the Mimstry reqUIred all applIcants to take a keYIng test. SupervIsor Data Capture Umt, Mike Hamson, testIfied that he wanted to test the applIcants' abIlIty to key data from Images on the computer screen, as opposed to paper documents, SInce the Mimstry had been mOVIng to that approach for a number of years AccordIng to Heather Gowans, Manager Revenue and Data ProcessIng, by July 1995 60% of the work In the umt Involved keYIng from Images 3 and the goal was to Increase that to 100% One of the other supervIsors In the Mimstry had created a test for keYIng from Images Hamson obtaIned It, tested It, and thought that It would enable the Mimstry to test the applIcants' abIlIty to key from Images, IncludIng theIr speed and accuracy At the tIme, the test that had been developed was eIther an alpha (i.e letters) or numenc (f.e numbers) test, but not a cOmbInatIOn of the two AccordIng to Manager Gowans, 70% of the work of a Data Entry Clerk was stnctly numenc, and 30% was alphanumenc The gnevor testIfied that 60% of the work was numenc and 40% was alphanumenc She could do both, although she acknowledged that In the weeks leadIng up to the key test, her keYIng was stnctly numenc In Hamson's VIew the percentage of stnctly numenc work was 80 to 90% AccordIngly he decIded that the keYIng test should be a numenc test, not an alpha one The tests were admInIstered over a three-day penod from November 24 - 27 1996 The decIsIOn was also made to run the test on the Banctec system The Banctec keyboard IS a PC-type keyboard, wIth a row of numbers across the keyboard, above the letters, as well as a reverse-number keypad on the nght-hand sIde It dIffers from the Umsys keyboard, whIch was also used In the TDC In that It dId not also have numbers supenmposed or Imbedded In the letter keys Thus, the Umsys keyboard had numbers In three places across the top above the letter keys, a reverse key pad on the nght hand sIde, and numbers Imbedded In the letter keys The Banctec system dId not have the numbers Imbedded In the letter keys 4 The Umsys system had been the "standard" keyboard for a number of years but In July 1995 the Banctec system was Introduced and the Umsys system was to be eventually phased out. At the tIme of the competItIOn In October 1996 both the Banctec and the Umsys systems were In use and Umsys contInued to be used untIl 1999 The Job postIng reqUIred applIcants to be able to operate "standard/non-standard" termInals The Mimstry's decIsIOn to use a stnctly numenc keYIng test, on the Banctec system, are two areas of contentIOn raised by the Umon. The gnevor testIfied that the two successful candIdates had been USIng the Banctec system pnor to the test whereas she had never worked on the Banctec system. She testIfied that It was only after the keYIng test, In fact, the day afterward, that she was assIgned to use the Banctec She also stated that her request to be assIgned to the Banctec before the keYIng test had been refused by her supervIsor Mike Hamson, that she was never advIsed that the test would be on the Banctec system and that no InfOrmatIOn was gIven, In advance, about the sconng of the test. She was only advIsed that a score of 10 000 keystrokes was reqUIred to ensure an IntervIew The eVIdence showed that one of the successful candIdates, Laurel AIrd-Khan, had not worked for the Mimstry SInce October 4 1996 and thus had not worked on the Banctec for more than seven weeks before the keYIng test. The other successful candIdate, Roseanne Kelly had not worked In Data Entry SInce May 31 1996 and thus the gnevor had no knowledge of what system, If any Kelly had been USIng dunng the 5 weeks leadIng up to the keYIng test. Further the gnevor had only seen Kelly use the Banctec system "once" More Importantly In the gnevor's resume, whIch was submItted on October 8 1996 approxImately seven weeks before the keYIng test took place, the gnevor wrote that she had expenence on both "Umsys and Banctec," and that she "[o]perate[d] Banctec TermInals for scan lIne repaIr and venficatIOn of InfOrmatIOn for ITAs, EHT etc " Dunng her IntervIew for the posItIOn, whIch took place approxImately two weeks after the keYIng test, she also stated that she had expenence wIth Banctec The dIscrepancy between her testImony and her resume about her expenence on the Banctec system was not explaIned or explored at the heanng. She testIfied that there were also other applIcants, lIke her who worked only on the Umsys system. AccordIng to Hamson, once the postIng occurred, some employees asked hIm what the test would be on and he Informed "all of the staff' It would be on the Banctec system. He stated that some employees expressed concern about that and he remInded them that they could use the reverse keypad on the Umsys system to practIce, that he would not check theIr keystrokes per hour rate and that they could practIce that way dunng office hours He testIfied that the gnevor was part of the group of employees to whom he told thIS, although he acknowledged that It was "possIble" that she was not. He further stated that some employees had asked to be sWItched to Banctec and that he would not do so SInce they were needed where they were assIgned. In hIS VIew It was up to the employee to gaIn expenence by USIng the reverse keypad and they dId not have to 6 be assIgned to the Banctec system to do that. AlternatIvely It was hIS VIew that employees could also practIce on a calculator whIch uses a reverse keypad. Sharon B ov. a Data ProcessIng Clerk who at the tIme was also a GO-Temp employee In the TaxatIOn Data Centre, competed In the October 1996 competItIOn. She testIfied that she was Informed through Hamson and the grapeVIne that the keYIng test would be on the Banctec system and that 10 000 keystrokes per hour was needed to obtaIn an IntervIew Further she testIfied that she had learned to use a reverse keypad by practICIng on a calculator The gnevor demed beIng Informed or even beIng aware that the test would be on the Banctec system, although she dId ask to work on It In preparatIOn for the test. She also demed that she was advIsed that she could "practIce" USIng the keypad on the Umsys machIne, or that her keystrokes per hour would not be momtored. She stated that she was not paid to practIce In her VIew moreover the feel and touch of the keys on the Umsys was dIfferent than on the Banctec, and would be dIfferent on a calculator although she had never used the reverse keypad on the Umsys In terms of askIng Hamson to work on the Banctec, the gnevor ImtIally testIfied, on examInatIOn-In-chIef, that pnor to the competItIOn she had asked her supervIsor If she could work on a Banctec keyboard before the keYIng test and that he responded "no" wIth no reason gIven. She also testIfied to that on cross-eXamInatIOn, statIng that she asked hIm, "If the test were to be on Banctec, was there any chance that she could use It," 7 to whIch he responded "no" The gnevor however was also called to testIfy In reply and on cross-eXamInatIOn, she stated that she dId not ask, pnor to the test, to work on Banctec, that others had asked Hamson thIS and were told "no" She added that she "may have asked CIndy [the Group Leader] If she could practIce on the Banctec" and was told "no" that thIngs were too busy The gnevor's key test was held at approxImately 3 00 p.m on November 27 1996 That IS near the end of her work day and she stated that she was "tIred" when she took the test. She acknowledged, however that she could have, but dId not, adJust her hours that day Nine other applIcants also took the test at that tIme KeYIng tests had also been gIven on November 25 and November 26 dunng the lunch hour In each case, applIcants were gIven five mInutes to warm up and get comfortable The test results, both as to keystrokes and accuracy were shown on screen ImmedIately to the applIcants NeIther the gnevor nor any of the other applIcants questIOned the accuracy of the results of the test. The gnevor's test showed 11 450 keystrokes/hour wIth an accuracy of 99 53 for a total of 58 pOInts The sconng, out of a possibIlIty of 70 pOInts, was based on the folloWIng standards 95% accuracy 25 pOInts 96% 27 97% 29 98% 31 99% 33 100% 35 8 10 000 ks/hr + 23 pOInts 11 000 ks/hr + 25 12,000 ks/hr + 27 13 000 ks/hr + 29 14 000 ks/hr + 31 15 000 ks/hr + 33 16 000 ks/hr + 35 Roseanne Kelly had 14106 keystrokes/hour wIth an accuracy of 9971%, for a score of 64 Laurel AIrd-Khan had 14,262 keystrokes/hour wIth an accuracy of 100%, for a score of66 Hamson and Gowans testIfied that employees were not advIsed of thIS sconng schedule In advance of the test. Dunng a sImIlar competItIOn In 1995 employees were advIsed about how the test would be scored ImmedIately before the test and, as a result, they receIved complaInts that the InfOrmatIOn Increased the applIcants' nervousness Consequently for the October 1996 competItIOn, sconng InformatIOn was not dIsclosed. In Hamson's VIew the Mimstry "learned from the mIstake" It IS unclear whether the same sconng standards were used In both competItIOns Hamson testIfied that the ongInal weIghtIng system used In the 1996 competItIOn (up to 25 pOInts for accuracy and 45 for speed) unduly weIghted speed over accuracy AccordIngly the pOInts assIgned were changed to gIve equal weIght to speed and accuracy Under the revIsed sconng, the gnevor's key test score was sIgmficantly closer to Kelly and AIrd-Khan than It otherwIse would have been. 9 There were a few other dIfferences between the 1995 competItIOn and the 1996 one In 1995 the applIcants were tested on eIther the Umsys or Banctec system. The keYIng test was an alphanumenc test, and It was manually graded for speed and accuracy The gnevor partIcIpated In the 1995 competItIOn and on the keYIng test tIed for first, but she came In second, overall, after the IntervIew As a result, after that competItIOn, she was told she should brush up on the IntervIew portIOn and she revIewed the IntervIew questIOns In preparatIOn for her IntervIew In the October 1996 competItIOn. Both Hamson and Gowans testIfied that the 10000 keystrokes was a "mImmum" and a reqUIrement of the Job but that the testIng was aimed at gettIng the best data entry operator they could. Out of 100 pOInts In all, a total of 70 was allocated to the keYIng test and 30 to the IntervIew The was based on the fact that the vast maJonty of the Job Involved keYIng InformatIOn but that other Interpersonal skIlls were reqUIred as well The gnevor however was under the ImpreSSIOn, from speakIng wIth other employees, that the keYIng test would be used solely to determIne who would be IntervIewed - In other words, once an applIcant reached 10 000 keystrokes/hour anythIng more would be Irrelevant, and the outcome of the competItIOn would be based on the IntervIew She acknowledged, however that keYIng speed and accuracy are Important elements of the Data Entry Clerk posItIOn. The gnevor dId very well In her IntervIew Indeed, she dId better than anyone else, reCeIVIng full marks for each questIOn for a total of 30 pOInts Her combIned score 10 (58 + 30) was 88 whIch placed here thIrd overall, behInd Roseanne Kelly wIth 91 pOInts and Laurel AIrd-Khan wIth 89 pOInts The Mimstry's practIce was to use testIng and IntervIews to determIne the outcome of a Job competItIOn. No weIght was gIven to pnor performance In the posItIOn. A reference for the gnevor whIch was completed by Mike Hamson, was qUIte posItIve, as were the references for Kelly and AIrd-Khan. Hamson dId not recall tellIng the gnevor's husband that the gnevor was the best data operator In the department. He stated that If he saId so he was only beIng polIte The gnevor's reference states, In part, that she "keys at aprox 12,000 ks/hr and over a 7 25 hr day her productIVIty does drop off slIghtly but so would anyone" At the heanng, she submItted a handwntten record of her keystrokes per hour shoWIng that In December 1996 she keyed an average of 15,214 keystrokes/hour on the Umsys system, whIle In March 1997 she was keYIng between 13 720 and 29 160 keystrokes/hour on the Banctec system In terms of favontIsm towards Kelly the eVIdence showed that In December 1996 the staff collected money for a maternIty gIft for Kelly and asked Manager Gowans to present It to her She dId so and stated to those assembled that Kelly was a valuable employee In the department. AccordIng to the gnevor Gowans also said that she was "sure that they would see her back." Gowans dId not recall thIS She testIfied that she dId not contribute money to the gIft and her only role was presentIng the gIft to Kelly She 11 stated that she has been asked around thIrty tImes to do that over the years Ham son al so confirmed thIS practIce m the department. The Umon also presented the testImony of Yvonne Pmder a Data Processmg Clerk. She testIfied that on January 4 1997 she had a conversatIOn wIth Hamson dunng whIch he told her that he had been called mto Human Resources for a meetmg wIth Gowans, Lorrame Kelly and Pat SImmons and that dunng the meetmg he was asked to destroy mformatIOn about the keymg tests so that If questIOns arose, he would have no mformatIOn, that only Human Resources would have that mformatIOn. ThIS concerned hIm, she stated, because Gowans had wanted Kelly to be slotted mto one of the posItIOns She also testIfied that on January 6 1997 Hamson told her that If she mentIOned theIr earlIer conversatIOn to anyone, he would deny It occurred. She stated that Hamson and she were fnendly and that he confided m her Pmder testIfied that she dId not report any of thIS untIl July 1998 when she met wIth the AssIstant Deputy Mimster to complam about the "pOIsoned" work envIronment m the department. She stated that the mformatIOn Hamson spoke to her about, she "could not keep It to myself' any longer From January 1997 through July 1998 she was "contemplatmg what to do" and was "waItmg for the nght tIme" Hamson demed that the conversatIOns alleged to have occurred m January 1997 took place or that he was asked to destroy the keymg mformatIOn. The composIte scores were provIded to the Umon ImtIally and dunng the heanng, Hamson found hIS ImtIal 12 notes about the keymg results He found them wIth some old papers m hIS desk when he cleared It out. No one questIOned the accuracy of the results of the test at the tIme and the dIsks wIth the actual tests on them were not retamed. The gnevor's GO-Temp assIgnment m the TaxatIOn Data Centre ended m Apnl 1997 At around that tIme, the government ceased to operate GO-Temp whIch supplIed the temporary staffing needs of the provmcIaI government, and mstead used pnvate- sector agencIes to fill theIr temporary reqUIrements Hamson testIfied that once the sWItch was made to the pnvate sector he could not request specIfic employees Under GO-Temp Hamson could request mdIvIdual employees, and m the past, he would ask the gnevor's husband, who worked m the same bUIldmg, If the gnevor was avaIlable to take temporary assIgnments Under the new system, he would advIse the AdmmIstratIve Group of hIS reqUIrements, i.e five data entry operators who are able to key a mImmum of 10 000 keystrokes/hour wIth an accuracy rate of 99%, for a penod of three weeks That mformatIOn was then passed on to Human Resources who would contact the pnvate sector agencIes who would then send employees to the TDC Hamson testIfied, however that there was one tIme, although he could not recall when, that the agencIes could not provIde a sufficIent number of staff and Human Resources asked hIm If he knew anyone who would fit the department's needs He had a lIst of the former GO-Temps, wIth theIr phone numbers, and he was mstructed to call them and ask them to report to Manpower one of the temporary agencIes He testIfied that he dId so and called the gnevor's home but receIved no answer He stated that he 13 tned agam later the same day but that Michelle Doucette, a former GO-Temp employee, told hIm that the gnevor had a full-tIme Job wIth a company He stated that he dId not recall the gnevor havmg an answenng machme and stated that he dId not leave messages for those he called because he was m a rush. He stated that there was a second tIme that he called Michelle Doucette and that he dId so at her request. The gnevor testIfied that she has an answenng machme and that she dId not receIve a call from Hamson. She stated that she dId not receIve temporary outsIde work untIl July 1997 and that m Apnl 1998 she was hIred full-tIme by a company She testIfied that had the Mimstry called her she would have accepted the work because of the hours and the fact that her husband worked m the same bUIldmg. The Mimstry hIred a number of employees on contract m the Fall of 1997 mcludmg a number of applIcants for the October 1996 competItIOn. Of the 22 applIcants, only Knapp and three or four others dId not thereafter work for the Mimstry through a temporary agency or on contract. Positions of the Parties. The Umon submIts that the GSB has JunsdIctIOn to decIde thIS gnevance even though the gnevor at the tIme, was a GO-Temp employee It submIts that management acted pursuant to ArtIcle 2, Management Rights, and that m exercIsmg those nghts It has an oblIgatIOn to act m good faith, i e m a manner whIch IS not arbItrary dIscnmmatory or m bad faith. In support of ItS contentIOn, the Umon cItes to OPSEU (McIntosh) and 14 MinistlY of Government Services (1993 ) GSB No 3027/92 (DIssanayake) OPSEU(pietroban) and Ministry of Government Services (1997), GSB No 2257/95 (Mikus) Here, m Its VIew the government conducted Its hmng process m a manner that was arbItrary dIscnmmatory and m bad faith. The Umon asserts that the key test was desIgned m a way that was dIfferent from pnor tests SpecIfically employees were not gIven a chOIce of keyboards They had to use the Banctec system, and the test was stnctly a numenc one, rather than alphanumenc In ItS VIew the gnevor was preJudIced by these changes That preJudIce, m ItS submIssIOn, was exacerbated by the refusal cf supervIsor Hamson to allow the gnevor access to the Banctec system or to allow her to practIce It submIts that gIven the deadlInes and pressures m the department at the tIme, the gnevor would not have been permItted to practIce at work, as Hamson asserted, and that no one was m fact told that they could practIce regardless of keystroke statIstIcs It argues that the suggestIOn that the gnevor could have practIced on a calculator IS absurd. Further the Umon submIts that the Mimstry demonstrated bad faith by the fact that the day after the key test, the gnevor was assIgned to the Banctec system The Umon also asserts that the gnevor was dIsadvantaged by management's faIlure to advIse the applIcants that there would be bonus marks for speed and accuracy 15 Accordmgly the gnevor concentrated on prepanng for the mtervIew portIOn as advIsed to do after the 1995 competItIOn. The Umon further contends that the tImmg of the gnevor's testmg, at 3 30 p.m after a full work day preJudIced the gnevor It submIts that she had already been keymg for a full day on a standard keyboard, then had to sWItch to a reverse keyboard wIth only five mmutes to warm up Nevertheless, she exceeded the 10 000 keystrokes/per hour reqUIrement, wIth a 9953% accuracy rate She then aced the mtervIew and should have been awarded the posItIOn. However It submIts that because bonus pomts were gIven on the keymg test, rather than the mtervIew bemg the decIdmg factor she lost the competItIOn. In the Umon's VIew the rules had been changed to favour management's preferred candIdate The eVIdence showed, It submIts, that Kelly had a better relatIOnshIp than others wIth the area manager In December 1996 m the mIdst of the competItIOn process, Manager Gowans told the staff that Kelly was a valuable employee and that she was "sure that they would see her back." In ItS VIew that statement creates an ImpreSSIOn that the competItIOn was predIsposed to favour Kelly's return. It argues that the type of test selected - a stnctly numenc test, on Banctec, further favoured Kelly In ItS VIew management desIgned the test m a way to ensure Kelly's success 16 The Umon contends that the Mimstry's bad faith IS further demonstrated by the testImony of Yvonne Pmder and fact that the gnevor the only applIcant who filed a gnevance, was the only mdIvIdual not rehIred m some capacIty by the Mimstry The Umon further contends that the competItIOn was arbItrary m that It was not desIgned to find the best person for the Job The Mimstry tested only numenc keymg when alphanumenc IS regularly reqUIred. It gave no weIght to satIsfactory performance m the Job The Umon further notes a number of other flaws m the competItIOn - the faIlure to contact references, the consensus sconng, possIble calculatIOn errors, the change m the sconng weIghts It submIts that these flaws are Important because the gnevor's total score was so close to the score of the second successful mcumbent. In the Umon's VIew the eVIdence was clear that the gnevor could have performed the Job and but for the flaws m the process, would have been the successful candIdate The Employer contends that the board lacks JunsdIctIOn to decIde thIS matter because the gnevor was a GO-Temp employee wIth no ArtIcle 6 nghts In ItS submIssIOn, a GO-Temp employee has no nght to gneve any aspect of a Job competItIOn, mcludmg an allegatIOn that the competItIOn was conducted m bad faith. Accordmgly It argues that the gnevance should be dIsmIssed on thIS basIs 17 On the ments, the Employer contends that there was no proof of bad faith, as alleged. It contends that the gnevor knew or ought to have known, that the keymg test would be on the Banctec keyboard and that the allegatIOn that she dId not know IS wIthout ment. It submIts that there was ample notIce, through the postmg, that the abIlIty to work on both a "standard" and "nonstandard" keyboard was reqUIred and that SupervIsor Hamson mformed staff that the test would be on the Banctec It submIts that there IS no other valId explanatIOn for the gnevor's asserted request to eIther practIce on or be sWItched to the Banctec system The Mimstry further submIts that ItS decIsIOn to use the Banctec for the keymg test was entIrely reasonable gIven the fact that the TDC was phasmg out the Umsys system and at least 60% of the work was on the Banctec system It further submIts that the gnevor m fact, had pnor expenence on the Banctec and could have practIced, on work tIme or her own tIme, usmg a reverse keypad on the Umsys system or a calculator It also contends that even If the gnevor had only worked on the Umsys system, other applIcants had only worked on Umsys as well and argues that It cannot have treated the gnevor arbItranly or m bad faith when she was treated m the same fashIOn as other operators For the same reason, It submIts that the tImmg of the gnevor's test does not eVIdence bad faIth smce she was not smgled out. It also pomts out that she had sufficIent notIce of the test to alter her work schedule that day but chose not to do so 18 The Mimstry further asserts that there was msufficIent eVIdence that utIlIzmg a numenc test on the Banctec system gave an unfair advantage to eIther Kelly or AIrd- Khanna smce neIther of them had used the system m the weeks before the test. Nor was there any eVIdence that eIther had been keymg numenc data only dunng that tIme, as had the gnevor In the Mimstry's VIew It was reasonable to use numenc rather than alphanumenc test smce the maJonty of the work m the umt was numenc and, at the tIme, no alphanumenc test avaIlable It contends that the test provIded a fair evaluatIOn of all of the applIcants The Mimstry asserts that Its decIsIOn to gIve bonus pomts for speed and accuracy as well as ItS decIsIOn not to mform applIcants about the sconng detaIls was reasonable It submIts that the goal was to hIre the best possIble candIdates and that applIcants who key at 1400 or 15000 keystrokes per hour should be scored hIgher than someone who keys at 10 000 keystrokes per hour It submIts that It dId not mform applIcants about the sconng because when It had done so m the past, It receIved complamts that It made the applIcants nervous The Mimstry pomts out that none of the applIcants were mformed about the sconng m advance, not Just the gnevor and that there was no eVIdence that the gnevor was not mformed to prevent her from bemg successful m the competIton, nor any eVIdence that tellIng would have mcreased her score Further the changes m sconng were fully explamed, were reasonable and benefited the gnevor 19 Finally It submIts that PInder was not a credIble wItness and that her testImony should not be credIted credIble It argues that bad faith In the competItIOn was not establIshed by the gnevor's lack of assIgnments afterward. It pOInts out that she, In fact, receIved one such assIgnment and thereafter obtaIned full-tIme work elsewhere Decision I conclude that under the specIfic facts of thIS case, I need not decIde the JunsdIctIOnalIssue presented because assumIng, arguendo that such JunsdIctIOn eXIsts, the eVIdence here falls sIgmficantly short of establIshIng bad faith. As stated In OPSEU (Bousquet) and MinistlY of Natural Resources (1991),GSB No 541/90 et al (Gorsky) at pp 63-64 All of the cases emphasIze that In cases InvolvIng the exerCIse of managenal dIscretIOn, the Board wIll hesItate to SubstItute ItS VIew for that of the employer as long as certaIn mImmum tests are met. These Include the reqUIrement that the decIsIOn be a genUIne one related to the management of the undertakIng and not a dIsgUIsed means of aChIeVIng ImpermIssIble ends based on dISCnmInatIOn or other grounds unrelated to the makIng of genUIne management decIsIOns The facts consIdered In makIng the decIsIOn must be relevant to legItImate government purposes Also In makIng ItS decIsIOn management, provIded It has acted In good faith, as above descnbed, need not be correct. Thus, In thIS case, the decIsIOn about the testIng and competItIOn must be a "genuIne one related to the management of the undertakIng" and not a "dIsgUIsed means of aChIeVIng ImpermIssible ends " The "facts consIdered In makIng the decIsIOn must be relevant to legItImate government purposes" 20 The eVIdence demonstrates that the decIsIOn to use a numenc test on the Banctec system was a reasonable decIsIOn based on the legItImate busmess needs of the department. The TDC was phasmg out the Umsys system and movmg more and more to the Banctec Under these cIrcumstances, testmg on the Banctec was reasonable LIkewIse, gIven the hIgh volume of stnctly numenc work m the department, usmg a numenc test was reasonable Alphanumenc work was a sIgmficantly smaller proportIOn of the work m the department. Further at the tIme, the testmg chOIce was between a numenc one and an alpha one there was no alphanumenc test avaIlable GIven thIS sItuatIOn, the decIsIOn to use a numenc keymg test on the Banctec system was a reasonable one, based on legItImate busmess consIderatIOns I also find the gnevor's assertIOn that she had never worked on the Banctec untIl the day after the key test to be questIOnable m lIght of her claim, on her resume, that she had expenence on the Banctec Both assertIOns cannot be true GIven the nature of the work m the department, I find It more probable than not that she had, as her resume mdIcated, some pnor expenence on the Banctec, albeIt perhaps not recent expenence There IS also msufficIent eVIdence that the successful applIcants, Kelly and AIrd- Khan, were gIven an Improper advantage over the gnevor by the chOIce of the test. Kelly had not worked m the department smce May 1996 and AIrd-Khan had not worked there smce October 4 1996 Thus, there was no eVIdence that eIther of them had done numenc keymg on the Banctec system m the weeks leadmg up to the test, potentIally gIvmg them 21 an advantage over the gnevor Nor was there any eVIdence that the desIgn of the test was decIded on the basIs of the gnevor's personal expenence on Umsys, or that of Kelly or AIrd-Khan. SImIlarly there were a number of other applIcants, In addItIOn to the gnevor who had pnmanly Umsys expenence The eVIdence also establIshes, on the balance of probabIlItIes, that the Gnevor knew that the test was gOIng to be on the Banctec system, or ought to have known. Hamson testIfied that he Informed the staff of thIS and Bov. confirmed that It was generally known In the department that the test would be on the Banctec system There IS no other reasonable explanatIOn for why the gnevor would have asked Hamson to sWItch her to that system or to practIce on It If she thought that she have the optIOn of USIng the Umsys system as she had In the past. Also, the eVIdence supports the VIew that the gnevor could have practIced USIng the reverse keypad on the Umsys system DespIte keYIng all day on the scan edIt system, whIch IS sImIlar to Umsys, and havIng no recent expenence or for the sake of argument, any expenence on Banctec, she was able to key at over 11 000 keystrokes/hour wIth only five mInutes warm-up That IS a rate whIch exceeds the departmental mInImum. Thus, regardless of whether Hamson authonzed It or not, the gnevor could have practIced USIng the reverse key pad, on work tIme, wIthout negatIvely ImpactIng her keystroke standIng. The 11 000 + keystrokes/hour rate IS very close to the 12,000 keystroke/hour rate found In her reference and above the mInImUm reqUIred In the TDC 22 Nor m my VIew IS the tImmg of the gnevor's keymg test suspect. Numerous others took the test at the same tIme as the gnevor and there was no eVIdence that the tImmg was selected to dIsadvantage her Further gIven that the gnevor had advanced notIce of the tImmg of the test, she could have altered her work schedule that day but she chose not to do so There was also no credIble eVIdence of favontIsm towards Kelly as alleged. The manager's remarks when presentmg the maternIty gIft to Kelly were clearly a polIte courtesy and do not suggest that the competItIOn was skewed to favour her Manager Gowans testIfied that she had made such presentatIOns and remarks more than thIrty tImes to employees over the years She dId not buy the gIft for Kelly or contribute to It; she sImply presented It at the employees' request. As to the assertIOns of Pmder I conclude that even If they are true (and I make no findmg on that) It does not establIsh that the competItIOn was desIgned or Implemented m bad faith. Further the fact that the competItIOn results, mcludmg the applIcants' scores, were provIded to the Umon and, although a bIt late, the supervIsor's notes from the keymg test were provIded, demonstrate that the mformatIOn relevant to the test and competItIOn was not destroyed. Finally Ill-wIll towards the gnevor m terms of the October 1996 competItIOn IS not eVIdenced by the lack of assIgnments to her after Apnl 1997 Once GO-Temp was elImmated, mdIvIduals were not requested by name but obtamed assIgnments through the 23 pnvate temporary agencIes In the one exceptIOn to that, Hamson testIfied that he called the gnevor as well but dId not leave a message That IS possIble Nor IS the fact that the gnevor was not gIven a contract posItIOn In the Fall of 1997 IndIcatIve of bad faith. By that tIme the gnevor had full-tIme work elsewhere, and the Mimstry was aware of that. In reachIng the conclusIOn that bad faith toward the gnevor dId not pervade the Job competItIOn, I also rely on the fact that the gnevor dId extremely well on the IntervIew portIOn of the competItIOn. She was the only candIdate who receIved full marks on each questIOn. In fact, she dId very well In the competItIOn, comIng In thIrd. Surely If the Mimstry was motIvated by bad faith, one would not expect to see that result. The eVIdence also showed that the gnevor was generally well regarded,her reference from Hamson was qUIte posItIve overall, and she had been repeatedly rehIred by the department. All In all, therefore, I conclude that the decIsIOns made about the desIgn and ImplementatIOn of the competItIOn were "genuIne one[s] related to the management of the undertakIng and not a dIsgUIsed means of aChIeVIng ImpermISSIble ends OPSEU (Bousquet) and Ministry of Natural Resources, supra Further the "facts consIdered In makIng the decIsIOn" were "relevant to legItImate government purposes" The gnevor dId well In the competItIOn, comIng In thIrd overall I have no doubt that she could have performed the Job In questIOn. But there was sImply InSUfficIent eVIdence to establIsh that the competItIOn was conducted In bad faith and the gnevance must therefore be dIsmIssed. 24 Conclusion There was InSUffiCIent eVIdence of bad faith In the desIgn or ImplementatIOn of the October 1996 competItIOn. AccordIngly the gnevance IS dIsmIssed. Dated at Toronto thIS 9th day of March, 2000 i-/1brmtEJO RandI H. Abramsky Vice-Chair 25