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HomeMy WebLinkAbout1997-0923.CURRANS_CHAPUT97_1 ONTARIO EMPLOY~S DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE , SElTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 800, TORONTO ON M5G 1Z8 TELEPHONEfTELEPHONE (41/5) 32/5-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 1Z8 FACSIMILEfTELECOPIE (41/5) 32/5-13gtJ GSB # 0923/97, 0924/97 OLBEU# OLB048/97,OLB049/97 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OLBEU (Currans/Chaput) Grievor - and - The Crown in Right of Ontario (Liquor Control Board of ontario) Employer BEFORE P Knopf Vice-Chair FOR THE G Caroline GRIEVOR Counsel caroline, Englemann, Gottheil Barristers & Solicitors FOR THE L Johnson EMPLOYER Counsel ogilvy Renault Barristers & Solicitors FOR THE P Roy INCUMBENT R Savage HEARING November 20, 1997 INTERIM DECISION This case mvolves two gnevances allegmg vIOlations of Article 21 05, the promotIOn provIsIOns of the collective agreement. The gnevors allege that the Employer has erred m the way It determmed who would be the successful Job applicant m the case of two promotional opporturutles for Store Manager m a "e" store At the outset of proceedmgs, a prelimmary Issue arose between the parties concernmg productIOn. Pursuant to a subpoena Issued to the Employer, the Uruon was seekmg the followmg documentatIOn. The complete contents of each file for Job competitIOns ER 84/96 and 95/96 mcludmg all matenals relied upon by the selectIOn panels, mcludmg all completed Job questIOnnaires, the selectIon cntena employed, all mtervlew notes, the results of all mtervlews and those parts of the personnel records of all candidates relatmg to either or both of the noted Job competitions. The Employer was reslstmg the production of these documents Accordmgly, the parties made submtsslons on tlus prelimtnary Issue In order to set the context, the Board was prOVided with a bnef summary of the background and Issues that would be put forward m the presentatIOn of the ments of the case There were two promotIOnal opporturutles avaIlable for pOSitIOns of Store Manager m two separate locations. In order for the Employer to deCide who should be selected, the Employer reviewed all the applIcatIOns that were received m response to the postmg, the employees' personnel appraisals, their personnel files, as well as their disCipline and attendance records On the basIs of tlus, five mdlvlduals were selected for - 2 - mtervlews The Employer was willmg to grant the positIOns to the two semor applicants who achieved a score of greater than 60% m the mtervlew NeIther of the gnevors scored above 60% and therefore were not granted the positions. The mcumbents have lesser semonty than the gnevors, but scored over 60% The Umon alleges that this violates Article 21 05 of the collective agreement by glvmg Improper weight to the mtervlewmg process. Further, the Umon alleges that the process and the selection method were unreasonable The Umon also alleges that the mtervlew was conducted m an unreasonable manner Further, the Umon asserts that the gnevors were quahfied for the positIOn and that the collective agreement was Violated when their semonty was not used as the determmIng factor m the promotIOn decIsion. The Umon seeks productIon of the documentation lIsted above m the subpoena. The Umon asserts that the mformatlOn contained m that documentatIOn will be arguably relevant, has been slgmficantly partlculanzed, IS not bemg sought by way of a "fishIng expedition", IS clearly connected to the matter at hand and will not cause undue prejudice to the Employer It was submItted that the gnevance IS broad enough to cover the method that the Employer used m decldmg whether the gnevors are qualIfied and should be promoted. It was said that the ments of the mqull)' will centre upon the reasonableness of the Employer's decIsion to give so much weight to the mtervlew and the reasonableness of the assessment Itself In terms of the Interview, the Umon seeks to challenge the composItion of the selectIon commIttee, Its conduct dunng the mtervlew and the questIOns whIch were asked. In addItIon, the weight that was aSSIgned to the answers will be challenged. It was argued that the documentatIOn bemg sought will cover all these Issues and IS therefore relevant. In support of Its pOSItIon the Umon relIed on the follOWIng authontles Children's Aid Society of City Belleville, County of Hastings and City of Trenton and CUPE Loca/2197 (1994),42 L A.C (4th) 259 (Bnggs), The Crown - 3 - in Right of Ontario (Ministry of Transportation) and OPSEU (1996), 54 L AC (4th) 1 (Kaufman) In response, the Employer asserted that the Union IS Incorrect In the allegation that the Employer rehed solely on the mtervtew to determme who would receive the promotion. The Employer's position IS that the factors of seruonty, performance appraisal and expenence were considered m deternurnng who should receive the mtervlew Thereafter, It was the performance at the 10tervlew that deternuned the quahficatlOns Because of thiS, the Employer argues that the request for productIOn goes beyond what IS appropnate. It was asserted that If the UOlon IS correct that the Employer gives 100% rehance on the 1Otervlew, then the UOlon would have no need for the personnel files of other apphcants because they were only considered in the assessment of who ought to be 10tervlewed The Employer also objects to the release of the personnel files of 10dlvlduals other than the gnevors. Refemng to the Freedom of Information and Privacy Act, R. S 0 Chapter F 31, It was po1Oted out that the personal 1OformatlOn of employees cannot be revealed unless It IS relevant to "a fair detenmnatlon of nghts affect10g the person who made the request", SectIOn 21 (2)( d) On thts basIs, It was argued that while the personnel records of the gnevors may be relevant, It IS mappropnate to seek the release of the personnel records of anyone other than the gnevors. Further, because the Employer's positIOn IS that the key Issue 10 the case IS how the gnevors performed at the 1Otervlew, matenal about other mdlvlduals IS not relevant to thiS case Further, the Employer accuses the Urn on of engaging m a fishtng expeditIon to deternune whether eVIdence IS available to support the allegations m the gnevance -4- The Employer also objects to the production of the questIOnnaires used by the selection panel It was pomted out that these questionnaires were carefully developed by hav10g regard to the cntena in the job postmgs. This 1Ovolved a great deal of time and effort on behalf of the Human Resources staff of the Employer These questIOnnaires are used 10 all job competitions for this type of position. The Employer IS concerned that the 10tegnty of the 10tervlew process will be Jeopardized If the questIOnnaires are released and available for the Umon or others to be able to scrutmlze It was said that tlus could give an unfair disadvantage to others m the context of a future mterview Accordmgly, the Employer asked that the questIOnnaires not be ordered to be produced In the alternative, It was suggested that conditions on the productIOn be Imposed so as to protect the confidence of the process and the pnvacy of the questions The Employer rehed on the follow1Og cases OPSEU (Chuan/Prommer) and Ministry of Community & Social Services, GST Files 1438/91 and 1439/91 (Samuels) dated April 7, 1992, Bell Canada and Communications Workers of Canada (1980),25 L.A.C (2d) 200 (P C Plcher), O'Brien and Ministry of Correctional Services, GSB File 1948/93 et al dated July 27, 1994 (Finley), University of Saskatchewan and University of Saskatchewan Faculty Association (Archer) (1995), 59 L A.C (4th) 273 (Shapiro) and Jackson et al and Ministry of Housing, GSB File 130/90 dated June 19, 1991 (Gorsky) By way of reply, the Umon mdlcated ItS willingness to abide by the type of conditIOns the Employer was seekIng In order to protect the secrecy of the questions. But the U mon stressed the Importance of the release of such documentatIOn In order that there be a fair enquiry mto the reasonableness of the mtervlew process Nonetheless, the Umon mdlcated ItS surpnse that the Employer would conSider It appropnate to use the same questions m subsequent mtervlews - 5 - Decision There IS no dispute between the partIes over the fact that the Board has the power to order the pre-heanng production of documents But thIs IS an exercIse of dIscretIon requlflng the balancmg of several nghts whIch mclude the nght to pnvacy and the nght of a full and faIr heanng. The determmatlOn of what mformatlOn ought to be ordered to be produced must be made on a case by case basIs It depends on the nature of the dIspute, the desIre to mamtam control over the proceedmgs, and the desIre to mmlmlze both the dIsruptIon m operations and any mvaslon of pnvacy Hence, all the cases cIted by both partIes mdlcate arbItrators' mtentlons to act "JudICIOusly" m ordenng productIon of mformatlOn. In the case at hand, the documents bemg requested have been sufficIently partlculanzed and the documents have been requested m a tImely fashIon. The Issues are whether or not the documents are relevant, whether they are bemg sought as part of a fislung expedItIon or whether productIon would unduly prejudIce the Employer The first matter to consIder IS that of relevance When the Issues that will be raIsed In tlus case are compared to the documentatIon bemg requested, It must be concluded that all the documents bemg sought will be relevant to the Issues at hand It IS true that the case, as charactenzed by the Employer, would make only the qualIficatIOns of the gnevors relevant because thIS collectIve agreement's promotIon clause IS not a competItIve clause. It IS also true that the Employer's case would requIre only an exammatlOn of the gnevors' performance at the mtervlew and no companson of theIr qualIficatIOns, performance or overall SUItabilIty With the other mtervlewees. However, the Uruon charactenzes the case m a much broader way The Umon seeks to attack the reasonableness of the process, the weIghtmg of the mtervIew, the reasonableness of the deCISIon and seeks a remedy wluch would award the jobs to the gnevors. All the relevant - 6 - documentatIOn touches directly on the questions bemg raised by the Union's charactenzatlon of this case Further, all the documentation bemg requested would be easIly foreseeable as eVidence that would be relevant to the case of the gnevors or the Employer at any given pomt. For all these reasons, the documents must be considered to be relevant to the determmatlOn of the Issues raised by these gnevances. The next question IS whether the Union's request for production amounts to a fishmg expedition. The Union candidly adrrutted that some of the documentatIOn contams mformatlOn that IS not otherwise known to the Union at tlus time Indeed, that IS partly why the documents are bemg requested. But the concept of a "fislung expedition" m the legal context ImplIes a search for documentation for the sake of a search, or a request that IS bemg made for the sole purpose of determining whether a case can be made out agamst the Employer In the situation at hand, the mformatlon wluch IS bemg requested IS solely wltlun the control of the Employer The Information IS relevant to the Issues bemg raised. The documentation bears directly on the essence of the dispute and goes no further than IS necessary for the Union to be able to present ItS own case and challenge the appropnateness of the Employer's actions For all these reasons, It must be concluded that the Uruon IS not engagmg m a fislung expedition by the request for these documents. Finally, we must address the questIOn of prejudice In tlus regard, It IS Important to lOOK at both the Issues of pnvacy and any Impact that the release of the documentation would have on the Employer It IS Important for an arbitratIOn board m a case such as thiS to protect the pnvacy of mdlvlduals who wIll be affected as much as possible The Protection of Privacy Act puts 5tnct hrrutatlOns on an employer regardmg the release of documentatIon deahng With personal InformatIOn about an employee But the Privacy Act also enables a tribunal such as thiS to compel the production of - 7 - documentation that IS available and appropnate to a party In htlgatlOn (Section 64) I have ruled above that the documentation beIng requested IS both appropnate and necessary to be produced for the proper conduct of a heanng Into these gnevances Any concerns about the pnvacy of Individuals other than the gnevors can be protected by way of ensunng that there IS no release of confidential mformatlon m the deCISion that IS bemg published. Further, the UnIon has undertaken to protect the confidentialIty of the documentatIOn It obtains There IS also concern about any prejUdICe that may be caused to the Employer If the questIOns bemg used In the selectIOn intervIews become avaIlable to the UnIon and could thereby JeopardIze the mtegnty offurther competItIon mtervIews It must be remarked that It IS unusual for an employer to use the same questIons m a senes of Job competItIOns Although It IS difficult to deSIgn a set of questIons to fit the cntena of a Job, It IS not Impossible to redesIgn the questIOnnaIres so that no one IS gIven a greater advantage havmg been asked the questIOns In prevIous competitIOns But m consIdenng tlus matter, It must be concluded that the Employer's concerns do not outweIgh the need for the questions that were asked at the IntervIew to be subjected to scrutmy m thIS heanng. The IntervIew was, by the Employer's admtsslOn, a key deCISIOn m decIdmg whether or not these gnevors were qualIfied. The mtervIew must be subject to analysIs m the heanng. Full scrutmy of the mtervIew IS necessary for a full and falr hearing for all partIes concerned. Agam, the UnIon has undertaken to respect the Employer's concerns about the use of thIS documentatIon. The UnIon has voluntarily agreed to the condItIOns the Employer has sought regardmg the control of the documentation. Accordingly, I have concluded that It IS both necessary and appropnate to award productIon of these documents , - 8 - For all these reasons, I have ordered compliance WIth Schedule A of the subpoena Issued to the Employer with respect to the five candidates 10 the Job competitIOn who were mtervlewed ThIs order was given orally on November 20, 1997 and was Immediately complied with by the Employer This decIsion confirms and explams the reasons for such an order The matter IS adjourned to dates agreed upon by the parties. ThIs Vice-ChaIrperson remams seIzed wIth the matter DATED at Toronto, Ontano, thIs 1st day of December, 1997 ~-\ ) 1 ,/~l /I' f~ ~ i Paula Knopf - Vi~~-ChaJ.rperson