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HomeMy WebLinkAbout1997-0923.Currans&Chaput.97-12-01ONDWO EMPLOY& DE LA CWRONNE CROWN EMPLOYEES DE L’ONTARKI GRIEVANCE COMMISSION SETTLEMENT RkGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WES r, SUITE 600, TORONTO ON M5G 7.?8 180, RUEDUNDAS OUESr BUREAU 800, TORONTO (ON) h&G 128 DE TELEPHONE/T&PHONE: (416) 326-7388 FACSIMlLElT~LiCOPIE : (416) 326-1396 GSB # 0923/97, 0924/97 OLBEU# OLB048/97,OLB049/97 IN THE MATTER OF AN ARBITRATION Under THE CROW?? EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OLBEU (Currans/Chaput) - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Grievor Employer BEFORE: P. Knopf Vice-Chair FOR THE GRIEVOR G. Caroline Counsel Caroline, Englemann, Gottheil Barristers t Solicitors FOR THE EMPLOYER L. Johnson Counsel Ogilvy Renault Barristers & Solicitors FOR THE INCUMBENT HEARING P. Roy R. Savage November 20, 1997 IM DECXJQ.lY This case involves two grievances alleging violations of Article 2 1.05, the promotion provisions of the collective agreement. The grievors allege that the Employer has erred in the way it determined who would be the successful job applicant in the case of two promotional opportunities for Store Manager in a “C” store. At the outset of proceedings, a preliminary issue arose between the parties concerning production. Pursuant to a subpoena issued to the Employer, the Union was seeking the following documentation: The compfete contents of each file for job competitions ER 84/96 and 95/96 including all materials relied upon by the selection panels, including all completed job questionnaires, the selection criteria employed, all interview notes, the results of all interviews and those parts of the personnel records of all candidates relating to either or both of the noted job competitions. The Employer was resisting the production of these documents. Accordingly, the parties made submissions on this preliminary issue. In order to set the context, the Board was provided with a brief summary of the background and issues that would be put forward in the presentation of the merits of the case. There were two promotional opportunities available for positions of Store Manager in two separate locations. In order for the Employer to decide who should be selected, the Employer reviewed all the applications that were received in response to the posting, the employees’ personnel appraisals, their personnel files, as well as their discipline and attendance records. On the basis of this, five individuals were selected for -2- interviews. The Employer was willing to grant the positions to the two senior applicants who achieved a score of greater than 60% in the interview. Neither of the grievors scored above 60% and therefore were not granted the positions. The incumbents have lesser seniority than the grievors, but scored over 60%. The Union alleges that this violates Article 21.05 of the collective agreement by giving improper weight to the interviewing process. Further, the Union alleges that the process and the selection method were unreasonable. The Union also alleges that the interview was conducted in an unreasonable manner. Further, the Union asserts that the grievors were qualified for the position and that the collective agreement was violated when their seniority was not used as the determining factor in the promotion decision. The Union seeks production of the documentation listed above in the subpoena. The Union asserts that the information contained in that documentation will be arguably relevant, has been significantly particularized, is not being 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 grievance is broad enough to cover the method that the Employer used in deciding whether the grievors are qualified and should be promoted. It was said that the merits of the inquiry will centre upon the reasonableness of the Employer’s decision to give so much weight to the interview and the reasonableness of the assessment itself In terms of the interview, the Union seeks to challenge the composition of the selection committee, its conduct during the interview 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 being sought will cover all these issues and is therefore relevant. In support of its position the Union relied on the following authorities: Children’s Aid Society of City Belleville, County of Hastings and City of Trenton and CUPE Local 2197 (1994), 42 L. A.C. (4th) 259 (Briggs), The Crown -3- in Right of Ontario (Ministry of Transportation) and OPSEU (1996), 54 L.A.C. (4th) 1 (Kaufman). In response, the Employer asserted that the Union is incorrect in the allegation that the Employer relied solely on the interview to determine who would receive the promotion. The Employer’s position is that the factors of seniority, performance appraisal and experience were considered in determining who should receive the interview. Thereafter, it was the performance at the interview that determined the qualifications. Because of this, the Employer argues that the request for production goes beyond what is appropriate. It was asserted that if the Union is correct that the Employer gives 100% reliance on the interview, then the Union would have no need for the personnel files of other applicants because they were only considered in the assessment of who ought to be interviewed. The Employer also objects to the release of the personnel files of individuals other than the grievors. Referring to the Freedom of Information and Privacy Act, R. S.O. Chapter F.3 1, it was pointed out that the personal information of employees cannot be revealed unless it is relevant to “a fair determination of rights affecting the person who made the request”, Section 21(2)(d). On this basis, it was argued that while the personnel records of the grievors may be relevant, it is inappropriate to seek the release of the personnel records of anyone other than the grievors. Further, because the Employer’s position is that the key issue in the case is how the grievors performed at the interview, material about other individuals is not relevant to this case. Further, the Employer accuses the Union of engaging in a fishing expedition to determine whether evidence is available to support the allegations in the grievance. -4- The Employer also objects to the production of the questionnaires used by the selection panel. It was pointed out that these questionnaires were carefUlly developed by having regard to the criteria in the job postings. This involved a great deal of time and effort on behalf of the Human Resources staff of the Employer. These questionnaires are used in all job competitions for this type of position. The Employer is concerned that the integrity of the interview process will be jeopardized if the questionnaires are released and available for the Union or others to be able to scrutinize. It was said that this could give an unfair disadvantage to others in the context of a future interview. Accordingly, 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 privacy of the questions. The Employer relied on the following cases: OPSEU (ChuanlPrommer) and Ministry of Community & Sociai 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. Picher), O’Brien andMinistry of Correctional Services, GSB File 1948193 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, 199 1 (Gorsky). By way of reply, the Union indicated its willingness to abide by the type of conditions the Employer was seeking in order to protect the secrecy of the questions. But the Union stressed the importance of the release of such documentation in order that there be a fair enquiry into the reasonableness of the interview process. Nonetheless, the Union indicated its surprise that the Employer would consider it appropriate to use the same questions in subsequent interviews. -5- Decision There is no dispute between the parties over the fact that the Board has the power to order the pre-hearing production of documents. But this is an exercise of discretion requiring the balancing of several rights which include the right to privacy and the right of a full and fair hearing. The determination of what information 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 maintain control over the proceedings, and the desire to minimize both the disruption in operations and any invasion of privacy. Hence, all the cases cited by both parties indicate arbitrators’ intentions to act “judiciously” in ordering production of information. In the case at hand, the documents being requested have been sufficiently particularized and the documents have been requested in a timely fashion. The issues are whether or not the documents are relevant, whether they are being sought as part of a fishing 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 this case are compared to the documentation being requested, it must be concluded that all the documents being sought will be relevant to the issues at hand. It is true that the case, as characterized by the Employer, would make only the qualifications of the grievors 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 examination of the grievers’ performance at the interview and no comparison of their qualifications, performance or overall suitability with the other interviewees. However, the Union characterizes the case in a much broader way. The Union seeks to attack the reasonableness of the process, the weighting of the interview, the reasonableness of the decision and seeks a remedy which would award the jobs to the grievors. All the relevant -6- documentation touches directly on the questions being raised by the Union’s characterization of this case. Further, all the documentation being requested would be easily foreseeable as evidence that would be relevant to the case of the grievors or the Employer ,at any given point. For all these reasons, the documents must be considered to be relevant to the determination of the issues raised by these grievances. The next question is whether the Union’s request for production amounts to a fishing expedition. The Union candidly admitted that some of the documentation contains information that is not otherwise known to the Union at this time. Indeed, that is partly why the documents are being requested. But the concept of a “fishing expedition” in the legal context implies a search for documentation for the sake of a search, or a request that is being made for the sole purpose of determining whether a case can be made out against the Employer. In the situation at hand, the information which is being requested is solely within the control of the Employer. The information is relevant to the issues being 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 appropriateness of the Employer’s actions. For all these reasons, it must be concluded that the Union is not engaging in a fishing expedition by the request for these documents. Finally, we must address the question of prejudice. In this regard, it is important to look at both the issues of privacy and any impact that the release of the documentation would have on the Employer. It is important for an arbitration board in a case such as this to protect the privacy of individuals who will be affected as much as possible. The Protection of Privacy Act puts strict limitations on an employer regarding the release of documentation dealing 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 appropriate to a party in litigation (Section 64). I have ruled above that the documentation being requested is both appropriate and necessary to be produced for the proper conduct of a hearing into these grievances. Any concerns about the privacy of individuals other than the grievors can be protected by way of ensuring that there is no release of confidential information in the decision that is being 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 being used in the selection interviews become available to the Union and could thereby jeopardize the integrity of further competition interviews. It must be remarked that it is unusual for an employer to use the same questions in a series ofjob competitions. Although it is difficult to design a set of questions to fit the criteria of a job, it is not impossible to redesign the questionnaires so that no one is given a greater advantage having been asked the questions in previous competitions. But in considering this 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 scrutiny in this hearing. The interview was, by the Employer’s admission, a key decision in deciding whether or not these grievors were qualified. The interview must be subject to analysis in the hearing. Full scrutiny of the interview is necessary for a full and fair hearing for all parties concerned. Again, 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 regarding the control of the documentation. Accordingly, I have concluded that it is both necessary and appropriate 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 in the job competition who were interviewed. This order was given orally on November 20, 1997 and was immediately complied with by the Employer. This decision confnms and explains the reasons for such an order. The matter is adjourned to dates agreed upon by the parties. This Vice-Chairperson remains seized with the matter. DATED at Toronto, Ontario, this 1 st day of December, 1997. Paula Knopf - Vide-Chairperson