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Home My WebLink About1990-0525.Cheong.90-12-28 . , ~~" I ... ,- , ~ .- ., . ,. ONTARIO EMPLOYES DE LA COUAONNE ¡ , CROWN EMPLOYEES DE L"ONTARIO i . . .-- GRIEVANCE COMMISSION DE . -- 11111 SETTLEMENT ~ REGLEMENT BOARD DES GRIEFS rso DUND~S STREET WEST, SUITE 2100, TORONTO, ONTARIO. M5Ci lZS TEJ.EPHONEITEJ.ÉPHONE: (4/6) ]26- /J88 '80, RUE DUNOAS OUEST, BUREAU 2100, TORONTO (ONTARIO¡, M5G lZ8 FACSIMIJ.EITÈLÈCOPIE: (4 /6! ]26- / J9r.; i 525/90 I I í IN TH~ MATTER OP AN ARBITRATION Onder I THE CROWN EMPLOYEES COtLECTlVE BARGAINING ACT ¡ I Before I j THE GRIEVANCE SETTLEMENT BOARD ! BETWEEN OPSEU (Cheong) I Grievor I ì - and - - . The Crown in Right of ontario I j (Ministry of Government Services) ¡ j ¡ Employer , j BEFORE: J. Samuels Vice-Chairperson i J. Carruthers Member i A. Merritt Member i - ¡ ! : FOR TBB A. Hudgins r GRIEVOR Counsel Cornish Roland Barristers & Solicitors FOR THE G. Anand EMPLOYER Counsel stringer, Brisbin, Humphrey , Barristers & Solicitors ( HEARING: December 10, 1990 L I ~ì \ I .. ~ I 2. The grievor claims that she ought to have been the successful candidate in a job competition and that the Ministry violated Article 4.3 of the collective agreement. Article 4.3 reads: i In filling a vacancy, the Employer shaff give primary ccnsideration to Qualifications and ability to per. form the required duties. Where Qualifications and ability are relatively equaL length of continuous ser· vice shall be a consideration. In preparation for the hearing, counsel for the Union caused this Board to issue a summons to the employer, requiring that the following documents be produced: 1. Position description form for the position involved in this grievance (Property Agent 1). 2-. The job posting for the above position (GS #365/89, closing date Oct. 16/89). 3. All documentation or memoranda setting out the selection criteria employed by the competition selection committee with respect to the competition. 4. All resumes or applications for employment for the said position by all of the applicants. 5. Any documentation relied upon by the competition committee concerning the evaluation of the· applicants including documentation found in their personnel files and performance appraisals. 6. Any evaluation forms, documents or memoranda concerning the evaluation of the applicants, including any documentation, memoranda or candidate rating forms utilized by the competition' committee to rate the candidates in the above- noted competition and any notes of the competition committee members concerning the test, conducted interviews or evaluations of the candidates. 7. A list of the applicants who were selected for interviews. I 8. Any documentation or notes setting out the reasons for the decision to select the applicants for interviews or rank the candidates and including any documentation setting out why the grievors were unsuccessful. 1 \, ... ~ 3 9 . The entire contents of the competition file. 10. ~he pe~sonnel.f~le of the grievor and the successful candidate lncludlng pOS1tlon description forms for all positions held by the successful candidate. The immediate response to this summons was a letter from counsel for the Ministry dated December 7, 1990. It read: I am in receipt of the subpoena issued on behalf of your clients in the above matter. In order to cladfy your understanding of the Employer's position with respect to the production of documents, please be advised that the Employer has no objection to producing those documents from the competition file which are directly related to the Grievor, or which are relevant to the case. The Employer, however, could not produce for your entire competition file without a detailed description of the documents requested. The only documents which the Employer will not produce. to you without an Order of the Board åre~those which, in its view;are not rC:levant to the case. or those which cannot be released under the provisions of the Freedom oj [nJormation aHd ProteciÌon 0/ Privacy Act. Having received tbe list of documents in Schedule "A" of the subpoena, I enclose herewith the follow ins: 1. Position specification form for Junior Property Agent position 2. Job posting for Competition GS No. 365/89 3. Interview cvalu:ujon forms for Grievor 4. APplication letter a.nd resume of the Grievor 5. Personnel Accion Form 6. Qualifying Guide rc: candidates 7. Interview Schedule for GS 365/89 8. Competition Summary for GS 365189 I tl ) ..~ ". -- ~ ) ~ 4 r would be pleased to release doc~mcntation relating to other candidates prior to the hearing date, if yOu provide me with their written consents. The parties then showed up at the hearing expecting this panel to rule simply on what documents ought to be produced, and then it was taken that we would adjourn, having essentially wasted an entire day of the panel's time. It was the understanding of both counsel that, in job competition. I cases, this Board no longer begins right in to hear the evidence ill a case, but rather the summons is not answered properly and the Ministry waits I for the Board to order production of documents. The first day of hearing is taken up entirely with this matter of production. I We informed counsel at the hearing that, though such a procedure I may have occurred in rare cases before at this Board, the policy and I practice of this Board have not degraded to the point where such a colossal waste of time is made on every job competition case. This Board is not the creature of the parties. It is created by statute and is funded out of the public purse. The parties must do whatever is necessary to facilitate the hearing, to cooperate in a reasonable fashion with one another, so that this Board's time and energy are used effectively. It may be that the list of documents in the summons is somewhat too extensive-it is not immediately apparent that one needs "the entire contents of the comp~tition file", or Irall resumes or applications for employment for the said position by ãll of the applicants" (there may have been thirty applicants, twenty-seven of whom were not even qualified enough to reach the interview stage; it would suffice if the documents were provided for the successful applicant and perhaps. for three or four of the closest rivals)-but in large measure it was reasonable. The Ministry is not new to this game. The Ministry said in its letter of December 7 that it was willing to produce any document relevant to this case. But the list of documents which it did release were obviously not all j I i'- 'r , i. 1 I 5 the relevant documents. :The Ministry did not turn over any documents relating to the successful applicant, nor any other applicant. Now how could the Ministry not have known that these documents were relevant? How could the Union have possibly prepared its case if it didn't even have the documents relating to the successful applicant? The Ministry's response in its letter of December 7 was absolutely inadequate. The Ministry was ordered by this Board by summons to turn over the relevant documents. The Ministry failed to do so. _ Section 11 (a) of the Crown Employees Collective Bargaining Act gives this Board the . . power lito summon and enforce the attendance of witnesses and to compel. them to give......written evidence". The summons itself is enforceable and u~timately any person who fails to answer the summons properly can be cited for contempt of court. There was no need for any further order for production of documents. The Board had made its order in the summons, and the I Ministry improperly failed to respond to the summons. I I Nonetheless, at our hearing, we ordered the Ministry to turn over I I the resumés and applications of the six candidates, the scoring sheets for all I I I candidates, any notes in the competition file relating to the scoring of these ! candidates, and any other clearly relevant documents. ! I I Ii t ,- I I , .. I : 6 I - And then we were forced to adjourn because the parties were not ;- I ready to proceed with the hearing. This was a gross waste of time. . This panel of the Board will not remain seized of this case. Done at London, Ontario, this 28th day of December . 1990. Ç0~,--- I _ J -"-.,.. ··-~amuels, Vice-Chairperson , , þ:~1~ . ca;:?>~ers, Member . Q9L) )tt~ I , ¡ Á. Merritt, Member ¡ , j ; i I . I ; I I I I I I