HomeMy WebLinkAbout2014-4050.Masliwec.16-05-12 DecisionCrown Employees
Grievance Settlement
Board
Suite 600
180 Dundas St. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Fax (416) 326-1396
Commission de
règlement des griefs
des employés de la
Couronne
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
Téléc. : (416) 326-1396
GSB#2014-4050, 2015-2079, 2015-2080
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Association of Management, Administrative and
Professional Crown Employees of Ontario
(Masliwec) Association
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The Crown in Right of Ontario
(Ministry of Environment and Climate Change/
Ministry of Education/
Ministry of Health and Long-Term Care) Employer
BEFORE Gordon F. Luborsky Vice-Chair
FOR THE ASSOCIATION Kelly Doctor
Goldblatt Partners LLP
Counsel
FOR THE EMPLOYER Caroline Cohen
Treasury Board Secretariat
Legal Services Branch
Counsel
CONFERENCE CALL April 21, 2016
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Decision
[1] The Board heard a motion by telephone conference to deal with a dispute
concerning the production of documents in the context of a number of job posting
grievances scheduled to be heard by the Board in approximately six months. This
Decision is limited to the determination of that preliminary dispute.
Background Information
[2] The Board is seized of at least three grievances arising out of the Grievor’s
unsuccessful application in separate job postings for positions at the Ministry of
Environment and Climate Change (GSB #2014-4050), Ministry of Education (GSB
#2015-2079) and Ministry of Health and Long-Term Care (GSB #2015-2080). The
hearing for these grievances has been set for October 31, 2016. The Association
suggested there were in fact a total of nine separate but related job posting grievances,
which may be consolidated with the instant proceedings.
[3] In advance of the hearing the Association sent a letter on October 23, 2015 to
the Employer requesting production of the complete competition file for the position of
“Consultant, Access & Privacy” at the Ministry of Health and Long-Term Care
(Competition: T-HL-71669) and “Senior Information and Privacy Advisor” at the Ministry
of Education (Competition: 69660). At the same time the Association also requested
particulars on a number of matters.
[4] It appears that much of the requested documentation and particulars were
provided to the Association; however the Association claimed that a number of relevant
documents remained outstanding in the following email communication to Employer
counsel dated April 13, 2016 from Association counsel:
I have reviewed the documents that you provided. I would note that the
documents provided did not include any of the following:
- the notes from the interview of the other candidates;
- the CVs and cover letters of the other candidates;
- the written assignments of the other candidates;
- scoring grids or documents related to how to score the written
assignment;
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- any handwritten notes on the CVs, cover letters, or written
assignments of Ms. Masliwec or the other candidates;
- notes from any reference checks that were performed;
- any other documents in the competition file related to the selection
process involving the other candidates.
We are prepared to limit our request for production at this time to the 5
candidates selected for an interview. Please advise if these documents will be
forthcoming
[5] Employer counsel’s responding email of April 14, 2016 is reproduced below:
I am aware of what is missing from what I sent you. We are in the process
of tracking down the rest of the material. I thought it would be helpful in
the meantime to send you what I did have. I do not have any objection to
producing it if she was in fact interviewed. My issue is with your
production request on the other file. Thanks.
[6] The “issue…on the other file” referred to in the foregoing email exchange arises
out of the grievance between the Association and the Ministry of Education. One of the
grounds of the Association’s challenge to the job posting at that Ministry is an allegation
the Employer was “biased” in considering the Grievor’s application. Consequently, it is
claimed that at least partially as a result of that “bias”, an invitation was not extended to
the Grievor to participate in a face-to-face interview with Ministry officials running the
competition. Apparently, only three other candidates were invited to interview for the
position and were asked a number of questions, from which the Employer made its
ultimate choice in the matter.
[7] Thus in addition to the documentation related to the Grievor’s application and the
Employer’s assessment thereof at the pre-interview or “screening” stage in the hiring
process (which the Employer does not object to producing), in an email to Employer
counsel of April 6, 2016 the Association’s counsel also demands disclosure of “any
handwritten notes on any of the job applications, any notes taken when assessing
candidates and assigning a score to them at the screening stage, a copy of the Job
Information Package, a copy of any notes/scoring grids used in the interview process,
and a copy of any notes or documents related to any reference checks that were
performed.” The Association further alleges:
In this dispute, we have concerns of potential bias by the hiring manager
and/or interview panel. This concern is supported by the fact that a
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perfect score was assigned to a candidate who had previously worked in
that unit, the fact that the cut-off score for an interview was set at an
unduly high threshold, and the fact that only three candidates were
interviewed.
[8] The Employer objects to producing any documentation related to its interviews of
the three candidates who were considered by its competition panel after the pre-
screening process eliminated the Grievor from contention. This position is made clear
in Employer counsel’s email of April 12, 2016, reproduced below:
Ms. Masliwec was screened out of the competition and never made it to
the interview. Therefore any bias you may have with respect to the
interview stage is irrelevant to the grievance filed by Ms. Masliwec. No
other grievances were filed in respect of the interview itself. We will check
to see if there are any hand-written notes of the initial screening stage.
We will also produce the Job Information Package. However, we will not
be producing information from the interview as it is not arguably relevant
to the grievances.
[9] At the request of the Association, the Board convened a telephone conference
on April 21, 2016 to deal with the outstanding production requests. With the exception
of their dispute regarding the disclosure of documentation related to the grievance at the
Ministry of Education, the Employer either agreed or at least committed to advise the
Association whether it has the complete competition file of the Ministry of Health and
Long-Term Care (where the Grievor had apparently been interviewed), within three (3)
weeks of the instant telephone conference, which it committed to disclose within one
month thereafter (to the extent the documentation exists). Those undertakings have
been recorded by the Board and are remitted to the parties for compliance, failing which
the Association may schedule another telephone conference to resolve any ongoing
dispute.
[10] The Employer also agreed to produce the “Job Information Package” related to
the competition at the Ministry of Education, and any relevant notes at the pre-interview
stage of the hiring process.
[11] That left for determination on the instant telephone conference the question of
whether, or to what extent, the Employer is obliged to produce documentation related to
the interview of the three candidates for the position at the Ministry of Education, where
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the Grievor’s application was rejected at the pre-screening stage in this hiring process
and thus was not asked to an interview.
The Parties’ Submissions
[12] On behalf of the Association, Ms. Doctor repeated that the main issue between
the parties is whether the Employer is required to produce any of the notes, scoring
grids, reference charts, and the like, arising out of its interviews with the three
candidates asked to interview for the job posting at the Ministry of Education,
notwithstanding the agreed fact that the Grievor was not asked to participate in that
process.
[13] According to the Association, such documentation is “arguably relevant” to the
matters in dispute between the parties for at least two reasons.
[14] First, the Association claimed its review of the documentation already provided
by the Ministry of Education showed the threshold score that a candidate had to achieve
in order to be granted an interview was “unusually high”, being a requirement of
achieving the grade of 90 out of 100. The Association asserted that one candidate, who
had previously worked in the position at the Ministry, received a perfect score in the
screening process and thus was apparently asked to interview for the job, leading the
Association to properly suspect that the unusually high “cut-off” score was intended to
disadvantage all but those who had previously worked in the same position before,
leading to legitimate concerns about the overall fairness of the process.
[15] Second, but also related to its first concern, the Association alleged there was
actual bias by the Ministry of Education competition committee in its selection of the
successful candidate for the position. By reviewing the actual interview notes of the
three candidates asked to interview for the position, and comparing it to the questions
and answers given by the Grievor (and/or perhaps the other unsuccessful applicants at
the screening stage), the Association asserted that all documentation related to the
actual interview of the three candidates may at least inferentially support its dispute with
the initial screening process relevant to the question of alleged biased.
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[16] The Association also referred to the following cases in support of its
representations: West Park Hospital v. O.N.A., 1993 CarswellOnt 1283, [1993] O.L.A.A.
No. 1212, [1993] O.L.A.A. No. 12, 32 C.L.A.S. 469, 37 L.A.C. (4th) 160 (Knopf) (Ont.
Arb.), Re Ontario (Ministry of Government Services) and AMAPCEO (Chapman et al),
2011 CanLII 86402 (Dissanayake) (ON GSB), Re Liquor Control Board of Ontario and
Ontario Liquor Control Boards Employees’ Union (Manoukas), 2003 CanLII 52959
(Kirkwood) (ON GSB) and Re Liquor Control Board of Ontario and OPSEU (Major),
2007 CarswellOnt 10689, 91 C.L.A.S. 235 (Nairn) (ON GSB).
[17] In reply, Ms. Cohen submitted on behalf of the Employer that documentation
related to the questions, answers and its scoring given by the three candidates asked to
interview for the contested position was not “arguably relevant” to the matters at issue in
the present case, where the Grievor had not been asked to participate in the interview
process. To the extent the Association was challenging the “fairness” of the pre-
screening process; the Employer contended that it could not rely on after-the-fact
evidence to prove something before the fact. In other words, the Employer disputed the
relevance of any evidence from the interview process itself to the essential question
before the Board, which the Employer characterized as whether the Grievor had been
fairly dealt with in the screening part of the hiring process.
[18] Unless the Association could establish a clear nexus between the scoring of the
questions and answers given to the three contestants asked to an interview with the
pre-screening process, which the Employer claimed the Association had failed to
establish, the Employer submitted the Association’s request for all documentation
related to the questions, answers and scores from the interview of three other
candidates amounted to nothing more than a “fishing expedition” in the sense of
enabling the Association to cast about to determine if it had a case at all, which was
improper in the circumstances. The Employer referred to the Board’s decision in
O.P.S.E.U. (Morsi) v. Ontario (Ministry of Labour), 2012 CarswellOnt 689, 109 C.L.A.S.
226 (Harris) (ON GSB) in support.
[19] The parties also filed the following excerpts from their collective agreement which
they agreed applied to the merits of the instant grievances:
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18.3.1 In filling a vacancy, applicants’ qualifications for the position shall
be assessed relative to the selection criteria – the knowledge, skills
abilities and experience required to perform the duties of the
position. The most qualified applicant for the position shall be
selected to fill the vacancy.
18.3.2 Where the qualifications and ability are relatively equal between an
AMAPCEO unit applicant and a non-AMAPCEO unit applicant
preference will be given to the AMAPCEO unit applicant.
[…]
18.6 Unfair competition complaints shall be processed in the same way
as other complaints under Article 15, except for the following.
Where a complaint is submitted to arbitration:
(a) The arbitrator shall be empowered to determine any question of
fact or law including whether any requirement of Article 18 has
been followed. This includes, but is not limited to, whether the
Employer (including a selection panel) has made an error in the
process of assessing the applicant’s qualifications based on the
evidence which was (or should have been) before it. However,
the arbitrator shall not be empowered to decide who should
have been selected in accordance with Article 18.
(b) As a remedy, the arbitrator may declare the competition and its
results null and void, and order the competition or any part of it
to be run again with directions on how it is to be conducted.
(c) Notwithstanding Article 18.6(a), where a competition complaint
involves the application of Article 18.3.2, the arbitrator may
award the job in question to the complainant where the selection
panel determined that the complainant’s qualifications and
ability were relatively equal to the non-AMAPCEO unit applicant
incorrectly awarded the job.
[20] The Board notes as an aside that it was not advised whether the successful
applicant for the contested position at the Ministry of Education was an AMAPCEO unit
member at the time of the application.
Reasons for Decision
[21] For the reasons that follow the Board determines it is appropriate to grant the
production order requested by the Association.
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[22] At para. 20 in West Park Hospital, supra, Arbitrator Knopf set out the following
factors for consideration in a contested request for the disclosure of documents, which
the Board considers applicable to the circumstances of the present case:
However, where the disclosure is contested, the following factors should
be taken into consideration. First, the information requested must be
arguably relevant. Second, the requested information must be
particularized so there is no dispute as to what is desired. Third, the
Board of Arbitration should be satisfied that the information is not being
requested as a “fishing expedition”. Fourth, there must be a clear nexus
between the information being requested and the positions in dispute at
the hearing. Further, the Board should be satisfied that disclosure will not
cause under prejudice. In this regard, the criteria set out in the Desmarais
and Morrissette case [reported at Desmarais v. Morrissette 1991, 4
C.LP.C. (3d) 297(Ont. Gen. Div.)] are applicable in terms of weighing
whether or not privileged information should be protected.
[23] In a previous case before the Board where there was an allegation that the
Employer eliminated a number of positions for the “bad faith” motive of “cleaning house”
and rehiring “only those employees it wanted”, Vice Chair Dissanayake allowed an
Association demand for broad disclosure of all arguably relevant documentation related
to the employer’s decision in the matter with the following comments at para. 12 that are
also germane to the immediate issue now before the Board.
Having considered the able submissions of the parties, I conclude that the
requested disclosure ought to be ordered. The employer is correct that
the instant complaints are not “competition grievances” in the traditional
sense in that they do not directly allege a violation of the job competition
provisions of the collective agreement. However, the appropriateness of a
request for disclosure does not depend on the labelling of a grievance. It
depends on whether the requested material is of some probative
value, and therefore arguably relevant, with respect to an issue in
dispute in this proceeding. That is the determinative test in every
case. The Association has clearly asserted that the elimination of all EMC
positions, the surplussing of the complainants, the creation and posting of
the new RPBA positions, and the denial of those positions to the
complainants constitute a scheme the employer devised in bad faith to
“clean house” and get rid of employees the employer no longer wished to
employ. It has not been suggested that the association is not entitled
to make that assertion as part of these complaints. Rather, the
employer denies bad faith. Thus the allegation of bad faith, including
bad faith in the treatment of the complainants in the job competition
for the RPBA positions, is an issue put before the Board in this
proceeding. The disclosure sought, in the Board’s view is, therefore,
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arguably relevant to an assertion of bad faith already made by the
association, and does not amount to a “fishing expedition”. Rather, the
Association, through its request for disclosure, is attempting to obtain
evidence to support a position it has already clearly asserted.
Emphasis added.
[24] Applying the foregoing principles to the instant demand for disclosure, the
allegation of “bias” which is an assertion of bad faith has clearly been made by the
Association and while the Employer may deny that charge, the Association has the right
to make that allegation in the absence of any evidence suggesting its abuse of process
in so doing. Thus the question of whether the Employer was bias in its selection of one
of the candidates for the posting at the Ministry of Education to the exclusion of the
Grievor is an issue on at least that grievance before the Board.
[25] More broadly, article 18.6(a) of the parties’ collective agreement empowers the
Board to determine “any question of fact or law including…whether the Employer
(including a selection panel) has made an error in the process of assessing the
applicant’s qualifications based on the evidence which was (or should have been)
before it”. Such language casts a very wide net on the “process of assessing the
applicant’s qualifications based on the evidence” which does not parse out the pre-
screening phase from the interview part of the hiring procedures adopted by the
Employer. The parties have obviously included such broad language to ensure
transparency in the selection process; which becomes even more important when there
is an allegation of “bias” or bad faith on the part of the Employer, to satisfy any
reasonable suspicion of a “cover-up” of improper considerations by a selection panel,
wherever those improper considerations occur anywhere in the process.
[26] Consequently, the Board concludes that the requested documentation related to
the questions, answers and scoring of the three candidates asked to attend an interview
for the position at the Ministry of Education is at least “arguably relevant” to an issue
before the Board from all of the evidence which was or should have been before the
selection panel, as contemplated by article 18.6(a). Adopting the further principles
enunciated by West Park Hospital, supra, the Board further concludes that the
Association’s request has been sufficiently particularized so there is no dispute as to
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what is desired; that there is a clear nexus between the information being requested
and the positions in dispute at the hearing; and there is no evidence to suggest that
disclosure of such information will “cause undue prejudice” to the Employer. Moreover,
the Board cannot find on the submissions before it that the Association’s disclosure
request constitutes a “fishing expedition” where it is related directly to the Association’s
allegation of “bias” in the assessment and selection process which the Board is obliged
to assess in its totality under article 18.6(a) of the collective agreement.
[27] The Morsi decision, supra, relied upon by the Employer in opposition to the
Association’s request for production herein is distinguishable from the circumstances
before the Board in the present case. In that case, the Board dealt with two grievances
related to job competitions for an Employment Standards Officer arising out of the
employer’s failure to grant an interview to the grievor on its assessment of some 2000
applications, and there was what the employer characterized as a “bald assertion” of
age discrimination by the employer in failing to select the grievor for an interview. While
the reasoning is very brief (from which it is difficult to discern any guiding principles), in
denying the union’s request for disclosure of information related to the successful
candidates for the jobs, Vice-Chair Harris concluded at para. 7 that inasmuch as the
issue before the Board was whether the employer breached the collective agreement by
failing to grant an interview to the grievor, “[w]hether someone was improperly granted
the job does not touch that issue”.
[28] That is unlike the circumstances presently before the Board where the issue of
alleged “bias” is directed at the Grievor’s treatment supported by the claimed high
threshold criterion adopted by the Employer and from the inferences the Board may be
asked to draw from the questions, answers and scoring of all of the candidates asked to
an interview (to be compared with the Grievor’s answers to presumably similar or
arguably related inquiring in the pre-screening process); not from the identity of the
successful candidate alone. Also, the persuasive value of the Morsi decision is greatly
diminished by the very limited or lack of reference to the collective agreement language
in issue and/or to the factual allegations of bad faith, which in that case related to an
assertion of “age discrimination” that the Board left open the possibility of the union
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pursuing if it could establish the employer had any knowledge of the age of applicants
for the position, which it had not accomplished.
[29] In the instant case the Board concludes the Association has at least established
a basis for inquiry into the very serious allegation of “bias” from all of the information
presently submitted to it, rendering the request for disclosure of the questions, answers
and scoring of the three candidates selected for interview at least “arguably relevant” to
an issue properly before the Board. But in any event, the Board concludes there is
nothing objectionable about ordering disclosure related to the interview questions,
answers and scoring as part of the entire “process of assessing the applicant’s
qualifications based on the evidence which was (or should be) before it”, as authorized
by the parties’ terms of reference for the Board’s proper inquiry under article 18.6(a) of
the collective agreement.
Disposition
[30] The Employer is therefore ordered to include in its disclosure to the Association
all documentation related to the questions, answers and scoring conducted on the three
candidates asked for an interview by the Ministry of Education, including without
limitation of the generality of the foregoing, any handwritten or other notes compiled by
the interviewers and/or any evaluators of the candidates asked to interview for the
position at issue in the present grievances.
[31] This order is in addition to the commitments made by the Employer to disclose
the applicable competition files related to the Ministry of Health and Long-Term Care
grievance made in the course of the telephone conference, which is hereby
incorporated as part of the instant order.
[32] The Board remains seized to deal with any disputes respecting the Employer’s
reasonably timely compliance with this order.
Dated at Toronto, Ontario this 12th day of May 2016
Gordon F. Luborsky, Vice Chair