HomeMy WebLinkAbout2002-1243.Smith.07-12-19 Decision
Commission de
Crown Employees
Grievance Settlement
règlement des griefs
Board
des employés de la
Couronne
Suite 600 Bureau 600
180 Dundas St. West 180, rue Dundas Ouest
Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8
Tel. (416) 326-1388 Tél. : (416) 326-1388
Fax (416) 326-1396 Téléc. : (416) 326-1396
GSB# 2002-1243
UNION# 2002-0154-0014
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Smith)
Union
- and -
The Crown in Right of Ontario
(Ministry of Northern Development and Mines)
Employer
BEFOREVice-Chair
Loretta Mikus
FOR THE UNION
Gavin Leeb
Barrister and Solicitor
FOR THE EMPLOYER Suneel Bahal
Counsel
Ministry of Government Services
THIRD PARTY Stephan Poulin
HEARING January 12 & 13, April 29, September 15, 2005;
August 28, 2006; March 30, June 1, 2007.
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Decision
In January of 2002 the grievor, Robert Smith, applied for the position of Northern Development
Adviser - Business/Industry. He has grieved the fact that he was not granted an interview for the
position, contrary to article 6 of the collective agreement. He asks that he be placed in the
position and be compensated retroactively for all lost benefits, salary and entitlements.
Mr. Stephan Poulin was the successful candidate. He attended the hearing and participated on
his own behalf.
The relevant provision of the collective agreement reads as follows:
6.3.1 In filling a vacancy, the Employer shall give primary consideration to
qualifications and ability to perform the required duties. Where qualifications and ability
are relatively equal, seniority shall be the deciding factor.
THE FACTS
The purpose of the position of Northern development Adviser-Business/Industry is described in
the job specification as follows:
Enhance the development and delivery of government programs, policies and projects;
the provision of sectoral expertise for various levels of government, business and industry
to improve sustained economic growth and productivity in Northern Ontario.
The duties and responsibilities are numerous and include establishing linkages and maintaining
ongoing relationships with forest products, mining, agriculture, tourism, business/industry,
aboriginal and other sector stakeholders to develop networks in order to provide strategic advice
to senior management in government on issues affecting the various sectors; working with sector
and government stakeholders and other partners to stimulate economic growth and development;
providing advisory and consultative services for public and private sector partners to develop
economic projects by analyzing and interpreting data, undertaking feasibility analysis,
negotiating cost-sharing agreements and fostering public/private sector partnerships; designing
and planning studies and surveys to the developments of strategies related to sector specific
activities such as analyzing and interpreting material related to the developmental impact on
Northern Ontario; reviewing and providing input on the impact of government policies and
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programs in Northern Ontario; providing advice and assistance in the development and
implementation of economic development policies and programs by identifying and obtaining
data and other relevant information; undertaking primary research and analyzing data and
information to identify key policy issues: developing and maintaining knowledge of economic
base in geographic area and providing information and advice on sector and economic
development issues to enhance economic activity and productivity in Northern Ontario; liaising,
facilitating, supporting and working with stakeholders on economic development initiatives and
conducting workshops, preparing educational materials and seminars on business planning,
program guidelines; provide leadership organization development volunteer management and
sectoral strategies; planning and coordinating the work of the external consultants and staff;
coordinating delivery of sector related programs by the development of policy and guidelines;
preparation of contracts; management of budget; liaising with line ministries; managing issues
and exercising signing authority; undertaking assignments and projects covering a variety of
subject matters including responses to public inquiries from companies and associations;
representing the Ministry and branch at sector events and stakeholder meetings; preparing
briefing notes and interacting with other team members to enhance competitiveness in Northern
Ontario.
:
Under the category of Skills it was stated
Skills to identify data and information such as global trends in tourism, mining, forestry,
agriculture, business/industry, aboriginal sector and assess the scope and nature of
research required, gather, organize, consolidate, interpret and assess the
implications/significance for the business and/or economic sectors.
Skill to identify options and recommendations for project proposals including
telecommunications, mining technology, resource products, value-added in
manufacturing, exporting, agriculture while taking into account policy guidelines,
financial, legal, economic, social, environmental, strategic and audit considerations, as
well as potential economic benefits/impacts to the industry/community clients.
Project planning/coordination skills; applied research techniques and investigative
techniques; skills with personal computer operation and software; excellent oral and
written communication skills to provide/exchange information, make presentations, chair
meetings and communicate with clients to resolve problems, as well as compose letters,
submit technical reports and presentations; interpersonal skills to carry out work area
teams; good negotiating skills to assist in negotiating partnership agreements; strong
planning and organizational skills to coordinate concurrent projects to work consultants;
leadership skills to meet activities with stakeholders and task teams.
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The job specification included a Freedom of Action section requiring the ability to work in a
geographically dispersed environment organizing and prioritizing the workload to ensure
completion within established time frames; determining research and development initiatives,
and initiating specialized research, interpreting and analyzing data, making decisions regarding
information provided to clients and/or Ministry, determining client eligibility for programs;
insuring compliance with established guidelines; representing the Ministry at internal and
external forums such as the Tourism Sector, Chamber of Commerce, municipal meetings and
policy forums representing the Ministry and the government.
It was also stated that the position required knowledge of economic principles and
economic/business client conditions to establish stakeholder linkage to provide policy advice to
senior management. The incumbent would undertake economic analysis, evaluation of
submissions/proposals and business cases, monitor projects, recommend payments, undertake
post project evaluations, analyze data and information to identify key policy and program issues,
promote, market and deliver government programs, provide specialized sectoral advisory and
consultative services to public and private partners.
The grievor believed his past experience qualified him for this position. He began working in
1981 for the Ministry of the Environment as an Environmental Technician in the Timmins office.
His job duties included administering the Environmental Protection Act, the Pesticide Act, the
Ontario Water Resources Act and acting as compliance officer for municipal and industrial
activities in the Timmins District.
From September 1984 to December 1993 he was a Community Development Economist for the
Ministry of Northern Development and Mines in Sudbury. This position was the precursor of the
Northern Development Advisor position at issue in the instant grievance. As a CDE he was the
leader of the Ministry?s area teams in the delivery of capital and operating programs concerning
water and sewage infrastructure, tourism infrastructure and recycling programs. He assisted
municipalities and other quasi-municipal organizations in designing strategic plans for
community and economic development. He provided project-management for capital and
operating grants, prepared terms of reference, processed requests for payment, participated in
estimates and year-round reconciliations, provided technical reviews for large-scale highway and
environmental assessments and municipal restructuring. He administered grant programs for
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small manufacturers and non-profit organizations as well as the Northern Ontario Training
Opportunities Program.
From January of 1994 to April of 2000 he was an Intermediate Environmental Planner for the
Environmental Assessments and Approvals Branch of the Ministry of the Environment. He
established and coordinated environmental assessment review teams, provided project
management for the evaluation of applications/submissions and reparation of environmental
assessment reviews. His project scope included reviews of municipal landfill sites, uranium
mine tailings, environmental assessments, terms of reference and environmental assessment
approvals under the Act.
He was declared surplus in 2000 and elected to work out his notice and preserve his two-year
recall right. By then he had been employed with the government for more than 20 years and was
close to retirement. He wanted to finish out his career with the government and retire on his
pension. He also enjoyed his work and felt he still had much to contribute. He was given a
contract unclassified position from September 2000 to March 2001 as a Senior Environmental
Officer in Sudbury and was responsible for inspecting and investigating complex municipal,
private and industrial facilities for compliance with various approvals and provincial
environmental legislation, reviewing waste management approval proposals and preparing
comprehensive inspection reports including recommending remedial and legal action In October
of that year he obtained a similar position in Sault Ste. Marie and in March of 2002 he received a
contract for the same position in the Windsor office. He was successful in a competition for the
classified position of Senior Environmental Officer in North Bay in December of 2002.
Ms. Anne Marie Leroy testified for the Employer. She has been employed in the OPS for 14
years and is currently a Northern Development Adviser (NDA) in the Temiskaming/Temagami
region and is the coordinator of the Northeastern Ontario Northern Development Council. As an
NDA, she is responsible for consulting with business and agriculture organizations within her
sector. She supervises the delivery of programs for approximately 20 partner agencies in the
federal, provincial and private sectors and directly works with businesses and their clients to
obtain funding for new enterprises, which also involves providing whatever intelligence, tools or
research, are necessary to maintain these operations. She assists in the expansion of business in
the region and participates in provincial committees to consider strategies for industry in the
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north. She consults with local businesses as a training adviser to support the expansion of
sectoral businesses such as call centers. She also assists in seeking financial assistance for the
infrastructure.
Before that she was the acting manager for the industrial sector team from Temiskaming in the
north to Muskoka in the South. She was also manager of the industrial sector in North Bay,
Sturgeon Falls and Muskoka and supervised between 8 and 11 staff members. She handled the
administrative functions of the office and managed a budget that included $60 million for the
Northern Heritage Fund. She was required to ensure that Ministry partnerships met their
objectives and held meetings annually with various ministries to monitor their success. She and
her staff oversaw between 15 to 21 trade shows internationally and assisted with efforts to access
new programs, such as exploring new exports to border states. Before that she had responsibility
for all recruitment in the area for her team as well as other teams in the region.
Prior to those job responsibilities she had been a Community Development Economist (CDE) in
Temiskaming for almost 4 years before the restructuring that culminated the NDA position. As a
CDE she was responsible for consulting the business community in Temiskaming which, at the
time, had been going through the closure of two mines and a loss of 1200 jobs. She helped the
community deal with the consequences of those closures, including the impact on the
infrastructure. She acted as coordinator between the federal and provincial committees that had
been assigned to assist with the impact on the community. Much of her assignment involved
dealing with municipalities, not-for-profit businesses and the local Chambers of Commerce.
In the early and mid-1990?s the staff of the industrial development offices with Northern
Development and Trade were transferred to the Ministry of Northern Development and Mines
into the Northern Industry Division. She was acting manager at the time of the restructuring
when the position of the economist was reclassified to that of Industrial Development Officer
and then, ultimately, Northern Development Adviser. At the time the government of Ontario had
a Northern Development Corporation that was focused on reviewing business plans for funding
on a local level. Its primary concern was funding. During that time an economist with the
government dealt with consultants in considering business opportunities and programs. They
worked with consultants in their liaisons with municipalities and local committee and partnership
agencies. They worked to ensure municipal access to studies with respect to infrastructure
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funding to better position them to attract and expand business in the north. It was the consultants
who did the research. Today their liaisons are with clients who have done their own research.
For example a client who was introducing a new product would seek more information from the
sectoral staff and review business plans on file.
It was her evidence that the position has changed significantly since then. The Ministry has
directly transferred specialists in six areas involving varying skill levels. In restructuring the
position they looked at the University of Waterloo?s two-year Economic Development course as
its model and all CDEs were required to take the course to ensure a minimum level of current
economic development knowledge. Not only did the structure of the position change but the
requirements and expectations of the new Northern Development Adviser did as well. They
were now expected to operate with an increased level of knowledge and their main focus was no
longer municipalities and not-for-profit businesses but rather lead agencies and businesses and
government staff who were specialists in analyzing business plans. Clients investing in a new
product or market need to be confident that they are considering a viable business plan.
Ms. LeRoy conducted the job competition at issue in this grievance. She did not know the
grievor before the competition and only became aware of his past experience through his
covering letter and résumé in response to the job posting. She was provided with the job posting,
the selection criteria, and the names of the applicants and the dates of their applications. She did
not know who prepared the selection criteria which, were listed as follows:
30% demonstrated research and analytical skills and programs/service delivery skills to
support growth and development in business and industry and other economic sectors
related, but not limited to, value-added manufacturing products and industrial
opportunities.
30% well-developed communications, advisory, presentation, interpersonal and
customer service skills to work with individual groups and organizations to deliver
programs and enhance economic/social benefits to communities.
15% demonstrated successful experience working independently and participating on
multi-disciplinary teams.
10% sound knowledge of Northern Ontario economy.
10% thorough knowledge of the government's economic development programs and
practices.
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5% good understanding of government organizations, structure and processes.
There were more than 100 applicants and it was decided that they would interview as many
applicants as they could complete in one day. The selection committee agreed they would
interview the top five candidates who received more than 3.5 out of 6 on a comparison of the
selection criteria. Ultimately they interviewed six applicants because, when contacting the
successful applicants, an individual who only scored two out of six was incorrectly included. It
was decided that it would be unfair to deny him an interview in the circumstances.
Ms. Leroy applied the scores set out in the selection criteria against the applications and their
résumés. The grievor scored 2.5. He received no points for the research and analysis portion.
Ms. LeRoy did not believe his résumé indicated he had the skills necessary for the position. He
received half of a point for his communication skills. Although his résumé outlined his
experience doing presentations and his liaisons with clients, Ms. LeRoy had concerns about the
quality of his communication skills because of grammatical errors in his resume. He was
awarded ½ a point for working with and for teams based on his proved ability to work with
partners in the past. He was given another 1/2 point for his understanding and knowledge of the
northern Ontario economy but nothing under the heading of knowledge of government economic
development programs and practices. He did not refer to any government programs in his
application that related to this job in particular. There was a list available of more than 20
programs the government was managing at the time and he should have accessed them on line
and referred to them specifically in his application. He did not detail programs he had knowledge
of or had worked on in the past. That was important to Ms. LeRoy because the expectation was
the successful candidate could immediately assume responsibility for those programs and
provide a high level of service to the clients. The grievor was given a full point for his
understanding of the government. It was obvious that his work in the past included working with
government agencies within a government structure in various ministries.
Overall, in comparing the resumes of the applicants, Ms. Leroy found the grievor?s information
difficult to assess. He noted that he had been involved in several functions and programs but
never stated with precision what he had actually done in relation to that involvement. He was
vague about his skills. He noted his project management experience but did not highlight the
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skills used in the job. He noted his environmental background and experience in waste
management but those activities did not relate to the position at issue. He noted that he had been
a Community Development Economist but that experience was dated and not responsive to the
new position. It had been a generalized position and now the duties required expertise in specific
sectors. According to Ms. Leroy, she could only read into the resume what it said on its face and
the grievor?s lacked the necessary information to allow her to give him a higher score.
In contrast, Mr. Poulin scored 5 out of 6 on the screening test. Ms. Leroy described his resume
and covering letter as concise and thorough. He received a full point for his knowledge and
experience of government programs and practices, in part because he had listed the various
programs he was familiar with but also because Ms. Leroy knew the program he had worked on
for the city of North Bay because it was funded and administered by her Ministry. As a result
she knew his actual experience based on her knowledge of the specific program. He had been a
Northern Development Officer and had experience dealing with local boards and agencies. He
was given a full point for his research and analytical skills based on the fact he had achieved a
Bachelor of Commerce degree from the University of Waterloo and Ms. Leroy had taken the
same program and knew its content, therefore Mr. Poulin?s knowledge. As well, he had
completed two other relate courses that Ms. Leroy judged to be valuable and related. Mr. Poulin
also scored a full point for his communication skills. He was bilingual and liaised with others on
an ongoing basis. He was computer literate and had prepared briefing notes. He was awarded a
full point for his knowledge of the workings of the government. He had had extensive
experience with the Ministry in North Bay and Parry Sound and it was clear from his resume that
he was familiar with ?government speak?.
On cross-examination Ms. Leroy agreed that she had not been provided with or considered the
personnel files of the applicants. She did not recall being told to interview any OPS employees
on lay-off who were minimally qualified but did recall being told that Mr. Smith had been
surplused. She also conceded that although she and the grievor had been CDEs during the same
period of time, she could not tell from his resume what actual skill levels he possessed because
he had not outlined his qualifications, for example whether he was at the 1,2, or 3 level of the
classification. Because she had been at level 4, she was personally aware of the work done at
that level but was not sure about what was required at the other levels. She also agreed that she
had not considered the grievor?s degree in geography as relevant to the requirements of the
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position. She was looking for a background in business and industry, not the environment, and
that was her focus in scoring the applicants. She wanted specific reference to the actual job skills
as they related to the position at issue.
SUBMISSIONS OF THE PARTIES
Mr. Leeb, counsel for the Union, advised the Board that the parties had agreed the first question
to the answered by the Board is whether the grievor had been improperly screened out at the
interview stage of the competition. If the answer to that question is yes, the parties will attempt
to resolve the question of remedy. Failing resolution, the Board will reconvene to determine what
remedy would be appropriate in the circumstances. It was the Union?s position that, if necessary,
the Board should compare the grievor to the incumbent and, if warranted, directly assign him to
the position.
It was the Union's position that the grievor?s application for the position had been scored
improperly and that he should have received a score of 3.5 out of six. The assessment of his
qualifications was incorrect. In the alternative, the screening process itself was fatally flawed.
The onus, it was stated, is on the Employer to show that it complied with the provisions of the
collective agreement. The evidence has shown it did not. It clearly demonstrated that Ms. LeRoy
gave differential consideration to Mr. Poulin over the grievor and applied a different standard to
assess their qualifications. She gave Mr. Poulin a point for his research experience based on the
fact that he had bachelors of commerce degree. She testified that she had a similar degree and
was aware of what that entailed. She also gave him credit for his knowledge of government
programs because he had worked with municipal governments and she knew the work done at
that level. She improperly credited him with factors not mentioned on the job competition, such
as the fact that he was bilingual. However, when questioned about the grievor?s qualifications,
she stated that she could only give him credit for what he had included in his written application
and résumé. She allowed him no credit for his experience as a CDE, notwithstanding the fact that
this new position had been based on that previous job description.
The results of the screening are proof of the flaws in the process. For example, Mr. Bushy only
scored two out of six but was incorrectly given an interview and came in second during that
phase of the competition. Mr. Charette, on the other hand, scored six out of six and came in last
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after the interviews. That suggests that the screening process had not accurately assessed the
candidates.
The Union also took the position that the cut-off for the interviews was arbitrary. No
explanation was given for the Employer?s decision to interview only those who scored 3.5 on the
test. More importantly, the decision to interview 5 because they could completer five in a day
was arbitrary and not related to the job duties.
As a final alternative, the Union took the position that the collective agreement requires the
Employer to give preferential consideration to internal candidates. That preferential
consideration flows from the seniority rights contained within the collective agreement. It was
the Union's submission that the Employer cannot compare relative equality between an internal
and an external candidate. Only if there are no qualified internal candidates, can the Employer
consider outside applications.
It was submitted that Ms. Leroy had worked for several years as a Community Development
Economist. She cannot claim to be unaware of the job duties. She was acting manager during
some of the time the grievor was in the position and must have known what her staff was doing.
She testified that there was no job posting for the new position of NDA and that the incumbents
of the former position were transferred into the new position. There could not have been a
significant change in the duties in these circumstances. It was a natural progression.
While she stated that she could only credit the grievor with what was written on his application
documents, she was prepared to credit Mr. Poulin with certain qualifications simply on the basis
of her personal knowledge of the courses he had taken. The grievor completed an honours
degree in geography, which required analytical and research skills, but was given no credit for
his degree. Ms. Leroy claimed that she was looking for specific examples of skills the applicants
had applied in their past employment. A review of Mr. Poulin?s application material shows that
he claimed to have specific skills without giving the particulars of his past work experience.
Because the Employer opened the competition to external candidates, it was able to review the
applications and choose the best candidate, which is not what is required under the collective
agreement. It allowed the Employer to give more weight to Mr. Poulin?s credentials than the
grievor?s, to the grievor's detriment. For example, when asked whether the job required skills
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related to policy development, Ms. LeRoy?s response was that they might be asked for input.
However the job description specifically requires an NDA to identify policy issues. The
grievor's experience in this area should have been worthy of credit during the scoring phase of
the screening.
In support of its position the Union relied on the following cases:Tolmie and the Ministry of
Health (1992), GSB # 975/91 (Saltman); Re Sydenham District Hospital and Service Employees
th
Union, Local 210 (1992), 29 L.A.C. (4) 370 (Brandt); OPSEU and Ministry of Community and
Social Services (1999), GSB # 1785/98 (R. Brown); Re York-Finch General Hospital and
th
Ontario Nurses? Association (1993), 35 L.A.C. (4) 258 (Burkett); Re Lakeport Beverages, a
rd
division of Lakeport Brewing Corporation and Teamsters Local Union 938 (2005), 77 O.R.(3)
543 (Ontario Court of Appeal); Re United Electrical Workers, Local 512 and Tung-Sol of
Canada LTD. (1964), 15 L.A.C. 161 (Reville); OPSEU (McIlwain) and Ministry of Consumer
and Commercial Relations (1990), GSB # 628/89 (Verity); Re Halton Adolescent Support
th
Services and OPSEU, Local 262 (1994), 44 L.A.C. (4) 129 (Simmons); OPSEU and Ministry of
Correctional Services (2002), GSB # 1999/98 (D. Harris); OPSEU (Quan) and Ministry of
Labour(1992), GSB # 1791/91 (Gorsky).
In the Quan case (supra), the Board?s function was to determine whether the requirements of the
collective agreement had been met by the Employer. It determined that the employer had the
onus to ensure that it had a sufficient factual basis upon which to make the comparisons required
by the collective agreement in order to thoroughly and properly compare the qualifications and
abilities of the competing applicants. At page 14, it referred to the case of Kuvntjes and Larman
(GSB# 920/85) and stated as follows:
If the eventual decision about who gets a job is to be based on relative qualifications and
abilities, it follows that all steps leading to that decision must also satisfy the requirement
that they lead to valid and relevant information about qualifications and abilities being
brought to the attention of the selection Board. If the prescreening decision screens out a
better qualified candidate, the eventual decision cannot help but be faulty. Therefore,
while there is clearly no right to an interview in the collective agreement, the nature of
the eventual decision to be made requires the pre-interview screening begun in a
comprehensive and fair manner.
The Board in the Quan case stated that it did not consider it necessary that the prescreening
process be conducted in the same manner as the actual selection process. However, it did state
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that it was necessary that the prescreening resulted in ?valid and relevant information about
qualifications and abilities being brought to the attention of the selection board?.
In the instant case the Union asserted that the Employer?s failure to consider the grievor?s
experience in a similar job must lead to the conclusion that the prescreening was faulty. The
Employer cannot ignore information in its possession that bears directly on the grievor?s
qualifications for the position. The job specification for the Community Development
Economist specifically requires research and analysis skills. The job specification is equally
clear that superior communication skills are required. The grievor should have received a higher
score on both of these factors.
Finally, the Union contended that the decisions on scoring the selection criteria, the percentage
required to qualify for an interview and the limit on the number of interviews were arbitrary and
unfair. Ms. LeRoy was given six selection criteria to apply during the screening process. She
assigned each of them one point, ignoring the value assigned to them by the person who crafted
the criteria. No explanation or rationale was given for the decision to interview those who
scored 3.5, or for the decision to limit their interviews to five people. These decisions were not
based on factors relevant to the job at issue and resulted in a faulty screening process.
The Union asked the Board for a declaration that the grievor had been improperly screened from
the job interviews. It reserved its right to renew its argument concerning the rights of internal
applicants against outside candidates. The parties agree that it will be asked to determine the
question of the appropriate remedy on the request of the parties.
Mr. Bahal, counsel for the Employer, agreed that the onus was on the Employer to show that the
screening process in the instant case met the requirements of the collective agreement. The
question is not whether this Board would have come to a different conclusion but rather whether
the Employer acted reasonably in exercising its discretion. There is no obligation on the
Employer to be correct in its assessment of the applicant's qualifications and skills, but it must
conduct the process in a fair manner.
In this case, there were 109 applicants for one position. The Employer was entitled to develop a
short list of qualified candidates to expedite the process. It decided that a score of 3.5 out of 6
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was necessary. The goal was to limit the interviews to a number that could be completed in one
day. Ms. LeRoy determined that each of the six selection criteria would be afforded one point
and that candidates could receive a range of 1, ¼, ½ and 0, depending on the information
contained in their application documents. Specifically, she compared Mr. Poulin?s data with that
provided by the grievor and concluded that the grievor did not have the experience and skills
necessary to qualify for an interview.
The grievor did have extensive experience in the environmental field but that experience had not
given him the skills required by the position at issue. It was stated by the Union that he had done
the job in the past and he should have been assumed to have the skills needed to perform it today.
The Employer asserted that the position he had held in the early 1990?s was significantly
different from the new position of NDA. It is the more expanded job duties of the new position
that the grievor lacked the skills to perform.
It was submitted that the Board?s jurisprudence is clear; there is no absolute right to an interview.
It is up to the applicant to ensure that he/she has put their best foot forward and has provided a
prospective employer with all the information necessary to display his or her skills. Ms. LeRoy
had to use the information provided to her by the applicants in comparing their qualifications.
The Employer cannot be expected to interview 109 applicants and it was reasonable for it to
develop a short list. The decisions made during the process were reasonable but the grievor did
not meet the threshold. There will inevitably be a subjective element when people are being
evaluated. As long as the conclusions reached are reasonable and fair, those evaluations are
valid.
In support of its position the Employer relied on the following cases: OPSEU (Kuntz) and
Ministry of Municipal Affairs and Housing (2002), GSB # 0058/97 (Kirkwood);Eugene
Sleczandkowski and Ministry of Transportation and Communications (1991), GSB # 230/91
(Barton);Adamowicz and Ministry of Transportation (1991), GSB # 2296/90 (Kaplan), Tully and
Ministry of Skills Development (1988), GSB # 1622/87 (Kirkwood); Boreski and Ministry of
Natural Resources (1982), GSB # 256/82 (Swinton); OPSEU (Kuyntjes and Larman) and
Ministry of Transportation and Communication (1987), GSB # 920/85 (Gandz); OPSEU
(Jensen) and Ministry of Skills and Development (1987), GSB # 1041/86 (Ratushy); OPSEU
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(Bent) and Ministry of Transportation (1988), GSB # 0031/88 (Knopf) and Pino and Ministry of
Education and Training (1995), GSB # 1236/94 (Kaplan).
In the Kuntz case the Board was dealing with grievances that alleged that the grievor had been
improperly denied several positions. In considering the issue of the screening of the résumés
and covering letters, the Board, at page 22, stated as follows:
TheBorecki decision points out that where there is a large pool of candidates for
purposes of cost and efficiency it is not necessary to interview all of the candidates. They
can be ranked in order that only more qualified candidates are interviewed. This
principle would be equally applicable in a small pool, if the situation is as stated on page
20 of the Sauvedecision:
?The award in Bentappears to say that the employer need not interview an
applicant who does have all that minimum essential qualifications and abilities, if
is apparent from the applicant?s that overall he or she is demonstrably less
qualified and able than other applicants. Together these awards support the
proposition that the employer need not interview someone would not be ?in that
running? even if everything claims in his or her job application work true.
Therefore, if there are qualified candidates, the Employer may look among the candidates
in a bona fide manner for the more qualified candidates to assess further, always being
mindful that he has the obligation to select the senior candidate if the candidate that year
to be relatively equal. Therefore as it applies to this case, it Employer was entitled to
rank the résumés in terms of qualified, marginally qualified and not qualify, and to
interview only those who appeared to be qualified.
In conclusion, it was the Employer?s position that the grievor is simply a frustrated employee
who unsuccessfully applied for a series of jobs and who did not take the time to ensure that his
resume was aimed at the job in the posting. He was treated in a fair and consistent manner in
relation to all of the other applicants. It cannot be said the screening process was flawed or that
the thresholds applied were unreasonable or unfair. The grievance should be dismissed.
In reply, the Union reminded the Board that the grievor had been employed by the Government
for 20 years and that he had spent 7 years in the precursor to the job at issue in this grievance.
The evidence has shown that the CDEs at the time of the transfer became the current NDAs,
including Ms. LeRoy. While the Union did not dispute the job had changed in the interval, it
took issue with the evidence that Ms. LeRoy did not know what the grievor had done while he
and she were CDEs. In fact, she was acting manager during some of that time and yet she
claimed to be unaware of his job duties.
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The Union agrees that the Employer is entitled to determine the criteria it intends to rely on in
considering applicants for a position. In this case, it asserted, the Employer should have included
past experience as a factor. The McIlwain, Halton and Tolmie cases recognized that related
experience is a valid indicator of future success. The evidence is also clear that Ms. LeRoy did
not treat all of the applicants equally. She was prepared to credit Mr. Poulin with points based
on her knowledge of the position he had held with the city of North Bay and based on her
personal experience with his university courses. On the other hand she refused to credit the
grievor for his past experience or his university experience, largely because she claimed she was
unaware of what he had done.
It was the Union?s position that the Employer manifestly failed to meet its onus to prove the
process was fair and reasonable. It asked for a declaration to that effect and asked the Board to
remit the matter back to the parties for resolution,
REASONS FOR DECISION
The issue before this Board is not whether the incumbent, Mr. Poulin, is more qualified than the
grievor for the position of Northern Development Economist. The sole issue is whether the
screening process utilized by the Employer to develop a short list for interviews was conducted
in a manner consistent with the collective agreement. In order to determine that issue there are
two questions for this Board to answer; first, was the process fair and reasonable and was the
decision to screen out the grievor consistent with the collective agreement; and, second, was the
grievor scored properly during the scoring portion of the screening?
The GSB's jurisprudence on this issue is clear. An employer does not have to interview all
applicants for a position and is entitled to develop a short list based on relevant criteria. In the
Kuyntjes and Larman case the Board said, at page 6, as follows;
? Therefore, while there is clearly no right to an interview in the collective agreement,
the nature of the eventual decision to be made requires that the pre-interviews greening
began in a comprehensive and fair manner.
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In the instant case there was a thorough screening of the candidates against a pre-
established set of criteria which were reflective of the job requirements. It was not, in our
view, unreasonable of the selection panel to draw the line at six candidates to be
interviewed and to deny the grievor interview. The interviewed does who scored highest
on the established criteria as well as those who were the most senior among the next tier
of qualified applicants. Their decision as to who should be interviewed was influenced
by their prior knowledge of individual candidates plus some additional knowledge of the
type of work they would have been involved with in the positions they had held. In our
view this is a perfectly reasonable way them going about a pre-screening process. ?
Applying those principles to the instant case, the Employer was entitled to prepare a short list of
applicants to avoid interviewing all 109 and, in doing so, was entitled to develop its own process
to accomplish that end. It determined what criteria were relevant to the job and assigned them a
value ranging from 30% to 5%. Those criteria are relevant to the position duties and it was not
unreasonable for Ms. LeRoy to apply those criteria to her pre-screening process. She decided to
give each criterion the same value that is one point, which was also not an unreasonable or unfair
assessment in the circumstances. It was argued that there had been no rationale given for the
decision to interview those who scored at least 3.5 out of 6 and to limit the interviews to a
number that could be completed in one day. Those decisions were based on the Employer?s
assessment of the most efficient and expeditious course to take to complete the selection process.
I do not find that was an unreasonable conclusion in the circumstances.
That brings me to the second question, that is, was the grievor scored properly during the
prescreening test. Ms. Leroy stated that she did not have any Knowledge of the grievor?s past
work experience and had to rely solely on his written documents. She did know, however, that
he had been an OPS employee who had been surplused and that he had worked as a Community
Development Economist for seven years. She also knew or should have known what his
experience had been in that position. She occupied that same position for a period of time and
she was acting manager during some of that time. She was prepared to apply her own personal
knowledge of Mr. Poulin?s work experience without reservation but refused to give the grievor
the same consideration. The job specifications for the Community Development Economist
required an incumbent to perform complex economic analysis of a specialized nature to stimulate
economic development, growth and diversification in a number of sectors. He/she performed in-
depth analysis of complex economic data to determine public sector strategies and investment
opportunities. He/she was required to have an understanding of economics, business practice
and community development. He/she needed strong communication and working abilities to
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communicate with a multidisciplinary development team. He/she were required to prepare
reports and memoranda, draft correspondence related to projects and prepare speech material for
senior officials. The information in the grievor?s letter should have raised some interest in Ms.
LeRoy?s mind about his skills to perform the duties of the job. She might have had concerns
about the length of time that had elapsed since he had been a CDE but she should have
recognized that the job duties he had performed during that time did satisfy some of the criterion
regarding research and analytical skills. If she had questions, she made no effort to satisfy
herself that she had made the right decision. I would have given the grievor ½ a point for his
research and analytical skills.
Another area of the scoring that I find problematic concerns the ½ point the grievor was given
for his ?demonstrated successful experience working independently and participating on multi-
disciplinary teams?. In her evidence Ms. LeRoy stated that the grievor had worked with
partners, had proven his ability to work on a team with other ministry teams and had liaised
extensively with municipal, business and other agencies as a CDE. And yet he only received ½ a
point. Mr. Poulin, on the other hand was awarded a full point. I would have awarded the grievor
a full point as well.
Mr. Poulin received a full point for his communication skills while the grievor received ½ a
point. The sole area of concern to Ms. LeRoy seemed to be grammatical errors in his
application. While I agree that a poorly prepared resume might weigh against an applicant, in
this case I believe her concerns were overstated. It is my opinion that her issues about the
application were more a matter of form that content. His application contained numerous
references to his past experience writing reports, corresponding with clients and ministry
personnel, liaising with various sector partners, chairing and participating in meetings and
conferences. Although the scoring matrix was designed to recognize 1/4, 1 /2, 3/4 and 1 points, I
note that applicants were awarded ½ or 1 point only. In the circumstances I would not alter Ms.
LeRoy?s score of ½ for this criterion.
I also question the fact the grievor received no credit for his knowledge of the government?s
economic development programs and practices. In his application he referred to his past
experience delivering programs that represented the government?s policy and practices and
claimed an ongoing familiarity with the economic development programs of the provincial and
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federal agencies related to job creation, business growth and new business development. Again,
I appreciate that he did not refer to any specific program directly; nevertheless his past work in
the field should have been recognized.
There is no need for me to go further. I find that the grievor was incorrectly assessed during the
screening process and that, had it been done properly, he would have achieved a score of 3.5 or
better and been granted an interview. The grievance succeeds. The matter is referred back to the
parties for resolution. If they are unable to reach a resolution, they are to contact the GSB for
additional dates for further submissions.
th
Dated at Toronto this 19 day of December, 2007.
Loretta Mikus
Vice-Chair