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HomeMy WebLinkAbout1991-1797.Quan.92-07-29 ONTARtO EMPLOY~-$ DE LA COURONNE CROWN EMPLOYEE$ DE L 'ON TA GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2~O0, TORONTO, ONTARIO, M5G 180, RUE DUNDAS OUEST, BUREAU 21,~, TORONTO {ONTARrOL M5G 1797/91 IN ~ ~TTE~ OF ~ ~T~TION Under ~ C~ ~P~ES COL~~ B~GAINING ACT Before OPS~ ~r~evor The Cro~ in Righ~ of Ontario (Minist~ of ~bour) ~ployer BEFO~: M. Gorsky Vice-Chai~erson J. Car~2hers Me. er F. Collict Me. er FORT HE A. Lokan GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE D. Costen EMPLOYER. Counsel Legal Services Branch Management Board of Cabinet HE]t~tING July 6, 1992 1 DECISION The Grievor, Thuy Quan, filed a grievance on July 23, 1991, the statement of grievance being as follows: I grieve that I have been unfairly denied a promotion to Consultant, Environmental Radioactivity, Competition LB- 347 - 9102.' The settlement desired was: I request that the competition be re-run and conducted in the fair and equitable way. At the date the grievance was filed, the Grievo~ held'the classification title Scientist, her position title being Scientist (level not settled), her date of hire being July, 1981. The job in question was posted in March of 1991 and attracted 28 applicants, the Grievor being the only internal one, and as such she had seniority rights under the collective agreement. The successful candidate, Ephriam Schwartz, was a contract employee at the Radiation Protection Service at the time of the posting. The Employer decided to proceed to fill the vacancy by pre- screening .the candidates who would be granted interviews. As a result of the screening carried out by the representatives of the Employer, six applicants were granted interviews, the'Grievor not being one of them. The incumbent, Mr. Schwartz, received notification of his right to attend at and participate in the hearing and he did so appear, and his rights were again explained to him. Counsel for the Grievor, in his opening statement, identified the areas of dispute raised by the Union: 1. Were the qualifications established as part of the job posting, and more particularly the screening criteria developed by the Employer, fair? Counsel for the Union referred to Tab C of Exhibit 1, being the Position Specification and Class Allocation form with respect to the posted position and to category 4 thereof bein9 "Skills and knowledge required to perform at full working level," and contrasted them with the qualifications set out in Tab B of Exhibit 1, being the job posting, the position of counsel being that the qualifications at Tab B went considerably beyond those required by the position as set out in Tab C. 2. Counsel for the Union also referred to Tab I of Exhibit 1, being the screening criteria established by the Employer to assess which employees would be granted an interview, which he regarded as introducing unwarranted requirements and/or traits not found in either the posting, Tab B, or the Position Specification and Class Allocation form, Tab C. In particular, counsel for the Uni6n referred to category D 3 ("Consultation skills") set o~t in Tab I. It was the position of counsel for the Union that neither the contents of the posting (Tab B) nor the screening criteria (Tab I) amounted to a fair and accurate representation of the requirements of the position. 3. It was also the position of counsel for the Union that even if the criteria applied by the Employer were fair and accurate, which was not admitted, they were not fairly and consistently applied to the Grievor. It was the position of counsel for the Union that the case law of the Board had established that the legal and evidential burden of proof lay on the Employer to demonstrate that it had used fair an~ accurate screening criteria in assessing whether the Grievor ought to receive an interview and that it had fairly and consistently applied such criteria to the Grievor (assuming, without accepting, the fairness and accuracy of the criteria). It was the position of counsel for the Union that, in these circumstances, the Employer was required to lead evidence before the Union was called upon to respond. Counsel for the Union argued that if the Employer is unable to discharge the burdens of proof cast upon it, then the Union sought by way of relief: a rerun Of the competition as between the 4 incumbent and the Grievor alone;, that the rerun take place before a different panel; and that the newly constituted panel disregard any experience gained by the incumbent in the position, including time spent by the him as a contrac~ employee prior to the competition. If, as a result of the rerun of the competition, the Grievor is selected as the suGcessful candidate, we were asked to award her full compensation retroactive to the day when the incumbent was awarded the position. We were also requested to retain jurisdiction in the event that the Grievor was successful and the parties experienced difficulty in the implementation of the award. Counsel for the Union indicated that there was another matter in dispute between the parties relating to whether the Board should hear evidence concerning a prior competition held approximately two years ago for the position of Environmental Radioactivity Consultant (the position not being the same as the one involved in the competition before us) where the Grievor was an applicant and where she had~been granted aa interview. It was agreed that the Board would first deal with the issues of which of the parties bore the burden of proof with respect to the sufficiency of the pre-screening mechanism de~eloped by the Employer and which of them would be required to proceed first. It was the position of counsel for the Union that the 5 Employer had both the legal and evidential burdens of proof with respect to the 'sufficiency of the pre-screening mechanism employed by it and should also be required to present its case first. Counsel for the Employer took the position that the Union had both the legal and evidential burdens of proof, and that it ought to be required to present its case first. Counsel for the Employer also argued that, even if we did not accept this position, the UniOn still had the preliminary burden of first establishing a prima facie case that the Grievor was qualified to carry out the duties and responsibilities of the posted position before the Employer could be called upon to call evidence to demonstrate that it had carried out the pre-screening in a fair and proper manner-. Counsel for the Employer also submitted that even if the Union was able to establish a prima facie case that the Grievor was so qualified and the Employer was then required to lead evidence as to the sufficiency of the way it conducted the pre-screening, the legal burden of proof remained throughout with the Union to demonstrate that the Employer had not carried out its pre-screening in a satisfactory manner. Counsel for the Union noted that the procedure that it submitted we ought to follow in assigning the burdens of proof and the obligation to go forward was that followed by several panels of the Board in cases where the grievances alleged that the employer improperly denied a grievor an interview in a promotion case. That 6 is, where a pre-screening mechanism has been employed to reduce the number of candidates .who would be interviewed by a panel established by the Employer f6r that purpose.' It was submitted that only when the Board finds that an Employer had not properly conducted the pre-screening that the Board would be required to address the issue of relative equality under art. 4.3 which states: In filling a vacancy, the Employer shall give primary consideration to qualifications and ability to perform the required duties. Where the qualifications and ability are relatively equal, length of continuous service shall be a consideration. As we view the cases on this subject, if we conclude that the Employer failed to properly conduct the pre-screening, we would not involve ourselves in the relative equality question but, as counsel for the Union earlier submitted, remit the matter back to the parties and order that the Grievor be granted an interview and that the competition panel reconsider its decision in the light of the results of the interview. Counsel for the Union argued that there was no hardship on the Employer in imposing the burden on it, without requiring the Union to establish a prima faeie case that the Grievor was at least minimally qualified for the position. The Employer was said to be in possession of all of the relevant evidence necessary to demonstrate whether the Grievor was minimally qualified for the position, and if it was able demonstrate that on the evidence re. aonably available to it when conducting the pre-screening, that he was not, the matter would be at an' end. In contrast to the 7 alleged fairness of imposing the burden of pr.oof that the pre- screening was fair and properly conducted on the Employer, it was submitted that it would be most difficult for the Union to divine what was 9oing on in the Employer's mind when it made the decision to screen out the Grievor prior to the interview stage if the burden of doing so was placed on it. Even if the Union was in possession of all of the evidence used by the Employer in carrying out the pre-screening, it could not know sufficient details of the basis for the Employer choosing certain criteria with respect to the posted position, developing a weighting scheme whereby the criteria were assigned different values, and why the applicants were assigned particular credit in the evaluation process. All of these matters were said to be peculiarly within the knowledge of the Employer. Counsel for the Union submitted that the order of proceeding ought to follow the usual rule that the party bearing the onus of proof proceed first. This was said to make common sense as the Union was entitled to know the Case it had to meet, Otherwise the Union was said to be put in a position where it would have to lead evidence without adequate knowledge as to what elements of the case it would have to establish and would be, in effect, rebutting a case which it does not sufficiently know in advance. Counsel for the Union also submitted that as the parties acknowledged that the case would involve the presentation of a good 8 deal of highly technical evidence requiring a considerable amount of explanation relating to the duties and responsibilities associated with the posted position in order to assess the criteria employed in screening out applicants and how they were chosen and evaluated, there was merit in narrowing the scope of the evaluation by requiring the Employer to proceed first. If the Union were required to go first, the Board might have to hear a great deal of unnecessary technical evidence as the union tried to anticpate the positioa that might be taken by the Employer. Counsel for the Employer viewed the issue before us as being one that, while it involved one facet of the application of-art. 4.3, ought to be governed by the usual procedure that applies in promotion cases involving the application of that article. That is, the legal and evidentiary burdens of proof that the Employer had violated the provisions of art. 4.3 should be assigned to the Union and it should be required to present its case first. Counsel for the Employe~ argued that if the Board accepted the position of the Union that there was, what he referred to as, a "preliminary onus" on the Employer, we would be recognizing the existence of a provision not found in the collective agreement. It was submitted that if the Board required th~ Employer to present its case first on the basis of there being some preliminary onus cast upo~ it, although the ultimate onus under 4,3 was on the Union, we would be adding to the language of art. 4.3. In response to the position of counsel for the Union that the evidence relating to the formation and carrying out of the screening process was peculiarly within the knowledge of the Employer and for this reason it would be unfair to require the Union to proceed first, counsel for the Employer stated that all exhibits from the Employer's file relating to the screening process had been made available to the Union and that there was nothing held back. In these circumstances it was submitted that the Union was in possession, of the same information as the Employer relating to the formation and application of the pre-screening procedure. The Union, in support of its position that the Employer bore the legal and evidential burdens of proof and ought to be required to present its case first, relied upon three cases involving grievances of grie~ors who, were applicants in job competitions and had been denied interviews. The first case relied upon by the Union was Borecki, 256/82 (Swinton). At.pp.2-3 of the Borecki case, the Board stated: As the hearing proceeded, it [became] clear during the examination of Mr. Fisher that the union intended to conduct the interview process and the competition before the arbitration board. Counsel for the employer objected to this line of questioning. As a result, the board ruled that the hearing should proceed in two stages. First, the board'should determine whether the employer acted improperly in denying the grievor an interview, with the onus on the employer to show that it acted properly. If it acted properly', the case would be over. It if acted improperly, the board would have to consider the relative equality of the candidates and the appropriate remedy. In Balics, 42/84 (Verity), which was also a competition 10 grievance, where the. grievor alleged that he had been "unjustly denied an interview," and where the "sole issue before the board was whether the employer acted improperly' in denying the grievor an interview," the matter proceeded with the onus being upon the employer "to establish that it did act properly in the circumstances." The Board in Balics, noted, at p.2, that "the above procedure was the course followed by arbitrator Swinton in [Borecki] with one variation. On an examination of the ~licg case, we were unable to identify the "one variation" from the procedure followed in ~oreck~. The Union also relied upon Dale 2384/87 (De/isle), where the grievor grieved the failure on the part of'the employer.to grant him an interview and complained that the selection process was flawed and the provisions of art. 4 of the collective agreement breached. At page 1 of the interim decision, the Board stated: The Board was persuaded to follow the wisdom of Dak%¢~, 42/84 (Verity) and Borecki 256/82 (Swinton) that the Ministry has the onus of establishing that the employer acted improperly in denying the grievor an interview. Counsel for the Union regarded the three interim decisions relied upon as having established the Board's position, in cases where a grievance is based on an alleged violation of the collective agreement on the grounds that a grievor was denied an 11 interview in a promotion competition: that the onus of establishing that the employer acted properly in denying the grievor an interview was on the employer. Counsel for the Employer argued that the finding as to where the onus lay in ~Qrec~ki cannot be extended to other cases. Counsel noted that, in Roreck~, there was no indication that counsel for the employer in that case had taken exception to the direction by the Board as to where the burden of proof lay. In the case before us, the Employer does take strong exception to any finding which would impose upon it a burden of proof or an obligation to proceed first. We were also asked to find that in the Dale and Balics cases there was no issue as to either the order of proceeding or on the question of where the burden of proof lay. In Balics, the Board did state that the decision that the onus rested with the employer to establish that it acted properly was as a result of the parties agreeing that this was the case. It is not clear from the decision whether this was an agreement entered into for the purpose of the case or whether the parties agreed that this represented the procedure that ought to be followed in this kind of case. The Board does note, at p.2, that it was following the procedure established in Borecki. In Dale, the Board indicates not that the onus rested on the employer because of an agreement of the parties, but that "the board was persuaded to follow the wisdom of [Balics and Borecki] that the Ministry has the onus of establishing that the employer acted properly in denying the grievor an interview." It is interesting to note that a respected and experienced arbitrator such as Professor Delisle did not merely indicate his view of where the onus lay but characterized the decision as one based on "wisdom." We have not performed a comprehensive search of cases relating to where the onus of proof lies in grievances involving allegations that an employee has bee~ screened out of a competition provided for under art. 4.3. We note, however, that in another pre- screening grievance, ~D~¢Y and Reid 659 and 660/88 (Waters), the Board indicated that in i%s view the onus rested with the employer to establish that it acte~ properly in denying an interview to the grievor. The Board noted that it was relying on the Comments found in Borecki and in Balic~i Counsel for the Employer referred to Eaton 629/85 (Knopf). Although the Eat~n case, which was also 'a promotion case, did not involve an allegation that the grievor had been denied an interview and that the employer .had failed to properly carry out its · obligations with respect to carrying out pre-screening, counsel for the Employer submitted ~hat the statements in that case dealing with the onus and the obligation to proceed ought to be followed by us. At p.2 of the F~ case, the Board stated: After considering the submissions, the Board ruled that the Union should be required to present its evidence 13 first. Having heard that the Union was provided with full disclosure and that an application to cross-examine the incumbent would not be challenged, we could see no reason why the Union would be placed in an unfair or an untenable position if it proceeded first. Further, since the Union was promised a full right of reply, the Board could see no reason to depart from its regular practice of having the order of presentation reflect the placement of the legal onus, which is clearly upon the Union. Further, it is preferable to have the Union present its Case first so that the respondent and the Board can be made aware of the basis of the Union's case. Thus, the Union did proceed first. The Board, h6wever, noted the special obligation that existed on the part of the employer under art. 4.3 (at p.13): Given the grievor's lesser seniority to the incumbent, we accept the Ministry's argument that Mr. Eaton must demonstrate superior qualifications and ability to Mr. Beagan in order to succeed under Article 4.3 of the collective agreement (See Seres, [139/79 (Jolliffe)]). However, the Board's function while hearing ~ grievance under Artiqle 4.3 is to determine whe~er the requirements of the ~rtic]e have been met b~ the Employe~. We agree with the following statement contained at page 7 of %he Quin~ award [9/73 (Pritchard)]). · .. It is important to emphasize that in meeting the obligations under that article the employer must employ a process of decision-making designed to consider the relative qualifications and ability of the candidate in a competition which will ensure sufficient relevant information is adduced before the decision-makers in order that they may make their comparisons in the confidence that they are able to thoroughly and properly compare the qualifications and abilities of the competing applicants. Similarly, before this Board is able to review any result of a job competition, it must also be provided with this requisite background information collected in a systematic and comprehensive manner so as to provide the Board with a sufficient factual basis on .which to make the comparison demanded by Article 4.3. (Emphasis added.) The obligation on an employer referred to· in in cases involving competition clauses such as art. 4.3 is found in a decision of the. Ontario Divisional Court: Canadian Food & Allied Workers' Union, Local 175 v G~eat Atlantic and pacifkc Co. o~ Ca~ada Ltd. et aiL, 76 C.L,L.C. 14, 056, leave to appeal to C.A. refused 13 L.A.C. (2d) 211 n. In Kuyntjes and Larman 920/85, the Board stated at pp.5-6.: If the eventual decision about who gets a job is to be based on relative qualifications and abilities, it follows that all steps leading up to that decision must also satisfy the requiremeat that they lead to valid and relevant information about'qualifications and abilities being b~ought to the attention of the selection Board. .If the pre-screening decision screens out a better qualified candidate, the eventual decision cannot help but be faulty. 'Therefore, while there is clearly no right to an interview in the collective agreement, the nature of the eventual decision to be made requires that the pr~-interview screening be done in a comprehensive and fair manner. Although the O. uinn case (atlRr~) dealt with the complete selection process, the quoted comments are applicable to the case of pre-screening. We emphasize that we do not regard the Kuyntjes case as requiring that the pre-screening process, being a step leading up to the final decision, has to be conducted in exactly the same manner as the process carried out by an employer to determine who should get the job. If this were the case, it would not be a pre- screening. What is necessary, however, is that the pre-screening results in "valid and relevant information about qualifications and 15 abilities being brought to the attention of the selection board" that is appropriate at the pre-screening stage. The result of an arbitration in a pre-screening case, as counsel for the Union acknowledged, could not result in the awarding of the posted position to the Grievor. The Board in Boreck%, Bal%¢~ and ~ did not consider whether the grievors, in those eases, had established a prima fag~e case that they had the necessary skill and ability to perform the posted position and that they were relatively equal in terms of qualifications and ability to the incumbent. That would be a requirement if they grieved following their being denied the position after being permitted to pass through the pre-screening to the interview stage. In none of those cases does it appear that the Board placed an onus on a grievor to establish a prima fac%~ ease that he had the bare qualifications to perform the posted position. Rather, the Board required the employer to satisfy the test of completeness as it related to the pre-screening mechanism as it would, with necessary adaptations, be required to do in the case of a promotion grievance where a grievor had passed through the pre-screening stage and had been granted an interview. Where the Board, as in the above noted pre-screening cases, placed the onus on the employer to demonstrate that it employed a basis that was both fair and reasonable in screening out a grieuor, it did not alter the rule with respect to how the burden would be allocated should the grievor succeed, and after failin9 to be appointed after being granted an interview, file another grievance. In Sopinka, Lederman~and Bryant, The LaN of Evidence.~ Canada - -Butterworth's - 2nd Edition, at p.83, the authors, in referring to various attempts that have been made to create formulae to determine the allocation of the burdens, refer to R. Cross and C. Tapper gross on Evidence 7th Ed. (London: Butterworth's, 1990), at 120, where Professor Tapper states that: "As a matter of common sense, the legal burden of proving all facts essential to their claims normally rests upon the plaintiff in a civil suit...". Professor Tapper also notes that the question then arises as to what facts are essential to one's claim and he concludes that since the incidence ~of the burden in some actions is arbitrary, the matter must be determined by precedent (ibid., at p.124). In The Law p~ Evidence in Canada, op. cit.,, at p.91, the authors note: "Courts do not examine the underlying reasons for the incidence of a burden unless there is no binding precedent, the common law or a statutory rule is unclear, a party challenges a well-settled rule, or a constitutional consideration arises. The authors also note, at p.93, that: In civil cases, the legal burden is more susceptible to'the influence of policy. A party who traditionally has the legal burden has been able to argue, successfully, on policy grounds that the burden should be reversed. The fact that one party is peculiarly situated to prove a fact resulted in the reversal of the traditional burden of bailee to disprove negligence, The authors also note, at p. 94, that sometimes " After 17 reviewing policy and fairness considerations, the Court concluded that the difficulties in proving causation could be met without reversing the burden of proof. Rather what wa~ required was a more pragmatic approach to the weighing of evidence." It appears to us tha~ in grievances arising out of alleged violations of art. 4.3, where a grievor claims that she has been improperly screened out of a competition by being denied an interview, the onus should fall on the employer to demonstrate that the means that it employed in the screening process whereby the grievor was denied an interview were fair and reasonable, being the party in the best position to do so. The jurisprudence, as gathered from the decisions of other panels of the Board, places the burden on the employer in such cases. In Bo~ecki at pp.7-8, the Board stated: Did the employer act improperly, then, in failing to interview the grievor? In conducting a job competition, an employer can not be required to interview all the applicants, regardless of their suitability. When numerous applications come forward, as is common in the public service with its large number of employees, questions of efficiency and cost may require some screening of applications. At times, only those meeting the basic qualifications may be considered. Of course, these qualifications must be reasonably related to the job in question. At other times, the pool of apparently qualified applicants may be so large that a ranking of the most qualified will have to occur and only those with the highest scores will be called for an interview and further consideration. The ranking, again, must be reasonable, in the sense that each candidate's qualifications are reasonably evaluated .... The Boreck~ case noted the two situations that can arise in 18 pre-screening grievances: (a) where the employer has screened out a grievor because she does not meet the basic qualifications and (b) where only those employees ranked~ as being most qualified: "those with the highest scores will be called, for an interview and further consideration." In the case before us we do not know which of these reasons caused the Employer to deny.the Grievor an interview. The Employer is also in the best position to establish the basis for its choice of criteria, the weight given' to each element of the pre-screening. and the reason for arriving at its evaluations. In the circumstances, we also see the "good sense" in following the four pre-screening cases above referred to in placing the .burden on the Employer to establish that it has properly carried out the pre-screening and to require it to go first. Such a ease as is before, us, and was before the four panels of the Board in Bore~k~, ~alics, Dale and ~inkley and Reid, raises a different issue than Comes before the Board in cases where a grievance is based not on the denial of an interview as a result of an allegedly improper pre-screening but on an allegation that an employer has failed to appoint a grievor contrarY to the provisions of article 4.3. In The Law of ~vidence in canada, op..cit., at p.59, the authors note: "In most eases there are multiple factual and legal issues. Where there are several disputed facts or issues in a case, the legal burden of proof in relation ~o different issues may 19 be distributed between the parties." We would also note that the allocation of the legal burden of proofin the latter kind of grievance is usually of little importance. In The LAw of Evidence in Canada, op. cit., at pp. 59- 60, the authors note: In civil proceedings, the legal burden does not play a part in the decision-making process if the trier Of fact can come to a determinate conclusion on the evidence· If, however, the evidence leaves the trier of-fact in a state of uncertainty, the legal burden is applied to determine the outcome. We do not believe that the parties are really concerned with which party should have the legal burden of proof. Rather, neither of them wishes to go first, and the issue of burden of proof arose in the context of the fundamental question for the parties: What is the order of proceeding? In a case involving a grievor who had been denied an interview, but which actually proceeded as One where the ultimate selection process was challenged: Re The Crown In Right of Ontario (Ministry of College8 and Universities) aBd Ontario Public Service Employees Union (1982), 7 L.A.C. 415 (Roberts), the Board, at p. 416, noted the usual, sensible practice of the parties: Most of the facts regarding the selection procedure used in a Competition are peculiarly within the knowledge of the employer and not the grievor who has the burden. In recognition of this, other "representatives of the employer have made what might be called 'full disclosure' by calling witnesses, including those who made the selection, so that the board can be informed as to how the competition was conducted and the reasons for which the choice was made": Re Genys and Min%stry of the Environment, G.S.B. No. 52/80, at p. 7 [unreported]. 20 The latter case acknowledges that merely furnishing raw data relating to the evidence relied upon by an employer in a promotion case is not "full disclosure." It is the evidence of the witnesses, especially those who made the selection, the satisfies the requirement of full disclosure. It is evident that the Roberts' ~anel were disturbed by the unfairness that could result of having the union go forward without the kind of full disclosure referred to. See OPSEU case, at-p. 416. In such cases as the one before us, the other panels of the Board referred to have placed the burden of proof ~n the issue of whether the pre-screeninq was.properly carried out on the party with the knowledge as to how the pre-screening was formulted and conducted, and the obligation to procee~ first should normally follow the allocation of the burden. We see no reason to depart from this decision. We have requested that the Registrar schedule to further dates for the hearing of evidence and argument, Dated at Toronto this 29ch day of July, 1992. M. Gorsky - ViCe Chairperson