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HomeMy WebLinkAbout2010-2741.McWhinnie.18-06-29 Decision Crown 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# 2010-2741 UNION# 2010-0368-0118 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (McWhinnie) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Brian Sheehan Arbitrator FOR THE UNION John Wardell Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Sia Romanidis Treasury Board Secretariat Employee Relations Advisor HEARING June 13, 2018 -2- Decision [1] The Employer and the Union at the Central East Correctional Centre agreed to participate in the Expedited Mediation/Arbitration process in accordance with the negotiated Protocol. It is not necessary to reproduce the entire Protocol. Suffice to say, that the parties have agreed to a True Mediation/Arbitration process wherein each party provides the Arbitrator with their submissions setting out the facts and the authorities they respectively will rely upon. This decision is issued in accordance with the Protocol and with Article 22.16 of the collective agreement; and it is without prejudice or precedent. [2] The grievor, at the time the grievance was filed in August 10, 2010, was employed as a Rehabilitation Officer 2 at the Central East Correctional Centre (CECC). [3] In and around April 2010, the grievor applied for a job posting for an Assistant Business Administrator. The grievor was interviewed for that position as part of that job competition. [4] Ultimately, the grievor, as well as all the other candidates for the position, did not meet the benchmark score of 70%; and therefore, were deemed not qualified. [5] The grievor was suspicious of the Employer’s assessment and questioned why her references were checked if she did not meet the benchmark threshold. The grievor further claimed that she was subsequently advised by Greer Thornbury, Deputy Superintendent, Performance & Financial Management that the Employer, in fact, offered the position to the two candidates with the highest scores, notwithstanding that none of the candidates satisfied the benchmark score; however, those two individuals declined the job offer. -3- [6] In and around August 2010, the Employer reposted the vacant Assistant Business Administrator position. The geographic scope for the position was no longer limited to employees working within 125 kilometres of the CECC and was now open to all OPS employees, as opposed to the MCSCS employees only condition in the first posting. [7] The grievor again applied for the Assistant Business Administrator position. This time, however, notwithstanding that she had enhanced the information set out on her resume, she was not granted an interview. It is noted that the Employer apparently hired an external third-party firm to assess which of the applicants should be granted an interview. [8] The grievor then filed her grievance asserting that the Employer violated the collective agreement by not having equitable and transparent hiring practices. Related to the nature of the outlined complaint, the relief requested “full disclosure of all information relating to [the job] competition”. [9] At the outset, it is noted there is a strong argument, from a practical point of view, that the issues raised in the grievance have ostensibly been rendered moot. The postings in question took place some eight years ago and the grievor is not seeking to be placed in the position. Further to this point, even if the Union is successful in establishing that the Employer erred in not granting the grievor an interview with respect to the second job competition, the relief granted would be, at best, to direct the Employer to rerun the job competition—which arguably makes no sense given the passage of time. Further to this point, the grievor would not, in the norm, be entitled to compensation for any lost wages and benefits even if the obstacles arguing against the grievance being successful were overcome. -4- [10] An additional noteworthy issue relating to this grievance concerns its scope. No grievance was filed with respect to the grievor not being awarded the Assistant Business Administrator position after the results of the first posting for that position. Accordingly, any issue regarding the Employer violating the collective agreement with respect to that initial job competition is, in my view, beyond the realm of this grievance. [11] It is appreciated that for the grievor, a prime motivation for filing the grievance was to give herself some assurance that she was treated fairly and equitably; and it is in this regard that she sought the disclosure of the documentation pertaining to the assessment of the Employer’s candidates for both job competitions. That being said, it is noted that absent express collective agreement language expressly mandating an employer to do so; an employer is under no general obligation to disclose material pertaining to a particular job competition to the union or an unsuccessful applicant for the position. It is recognized, however, that an employer may be ordered to produce such documentation as part of the arbitration process arising from a job competition grievance. It was my determination at the Mediation/Arbitration that the disclosure of the information sought by the grievor was not appropriate, however, in light of the particular facts associated with this case. With respect to the issue of disclosure of documentation with respect to the first job competition, as noted previously, issues related to that competition are arguably outside the scope of this grievance. As to the documentation pertaining to the second job competition, the initial and primary issue to be decided with respect to the second job competition is whether the Employer’s decision not to grant the grievor an interview was inappropriate or unreasonable. Information pertaining to the scoring of the candidates who, in fact, were granted an -5- interview, in my view, is not arguably relevant to the fundamental issue of whether the grievor should have been granted an interview. [12] As to the merits of the grievance, the pool of applicants regarding the second job competition had potentially expanded significantly as a result of the geographic restriction of 125 kilometres being lifted and the opening up of the competition to the OPS generally. With a greater pool of candidates, the Employer, upon assessing the grievor’s resume, concluded that it did not warrant her making the short list of candidates worthy of an interview. There exists, in my view, no basis to suggest that the decision was unreasonable or inappropriate. [13] For all the reasons outlined above, the grievance is, hereby, dismissed. Dated at Toronto, Ontario this 29th day of June, 2018. “Brian Sheehan” Brian Sheehan, Arbitrator