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HomeMy WebLinkAbout2007-2529.Brimicombe.08-12-22 Decision Commission de Crown Employees Grievance Settlement règlement des griefs Board des employés de la Couronne Suite 600 Bureau 600 180 Dundas St. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tél. : (416) 326-1388 Fax (416) 326-1396 Téléc. : (416) 326-1396 GSB#2007-2529, 2007-3698 UNION#2007-0205-0009, 2007-0999-0015 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Brimicombe/Union) Union - and - The Crown in Right of Ontario (Ministry of Labour) Employer BEFOREVice-Chair Nimal Dissanayake FOR THE UNION John Brewin Ryder Wright Blair & Holmes, LLP Barristers and Solicitors FOR THE EMPLOYER Omar Shahab Counsel Ministry of Government Services HEARING December 15, 2008. 2 Decision [1]File number 2007-2529 is an individual grievance of Ms. Kathleen Brimicombe. File number 2007-3698 is a union grievance. Both grievances allege that the job competitions held to fill 10 positions of Worker Advisor 2 were in breach of the collective agreement. Ms. Brimicombe seeks an order placing herself in the position she competed for. In the union grievance, the union seeks on behalf of nine other grievors, an order that the job competitions be re-run. [2] The job competitions were held in different locations within the province. The union in its opening statement asserted that following the job competitions, nine positions were filled with external applicants, including some from outside the Ontario Public Service. The grievors were internal applicants. None of them were successful, despite the fact that two of them had worked as Worker Advisor 2 on an acting basis. [3] The union?s position is that the job competition process was fatally flawed. This interim decision is restricted to two procedural issues raised at the commencement of the hearing. [4] ISSUE RE BIFURCATION The union asserted that the employer relied exclusively on the scoring in the interview process in making its decision on appointments. It was alleged that the employer had failed to assess the work experience and work performance of the applicants, and specifically that it had not reviewed performance appraisals or personnel files, and had not checked references or consulted with the supervisors of the applicants. 3 [5] Initially, the union proposed that the employer agree to the facts asserted in para. 4 above, and that the Board should rule on the basis of those facts whether or not a re-run of the job competition should be ordered with respect to all of the grievors except Ms. Brimicombe. Counsel submitted that based on consistent jurisprudence from this Board, where a job competition is found to be exclusively restricted to the scoring in interviews, the resulting remedy is an order to re-run the job competition in compliance with the law. [6] The employer, however, disagreed with the union?s assertion that it relied exclusively on the interview scoring. Counsel submitted that the employer would establish that, even if review of performance appraisals, personnel files, reference checks, and consultation with supervisors may not have been done in a formal manner in all cases, in the end the employer did take into account the applicants? experience and work performance in its decision-making process. [7] When no agreement on facts was forthcoming, union counsel moved that I bifurcate the issue of whether or not the employer relied exclusively on the interviews. It was suggested that I should hear the evidence relevant to that issue, and if I conclude based on that evidence that the employer did rely solely on the interview results, proceed to order that the competitions be re-run. [8] Union counsel submitted that a bifurcated hearing would be efficient and expeditious. It would result in savings in resources and time for the Board as well as for the parties. It would make it unnecessary for the Board to 4 engage in an inquiry into issues such as the relevance of interview questions, their relative weighting, the scoring of questions, and the relative experience and qualification of the applicants. [9] The employer vehemently opposed the proposed bifurcation. First, counsel submitted that bifurcation would not result in any added efficiency. The employer would still be calling managers and interview panel members to testify about how, and to what extent, work experience and performance were considered.The union would cross-examine each employer witness extensively. Counsel submitted that the employer is entitled to lead evidence to show that even if experience and work performance were not considered through a formal review of documents or reference checks, that same information was obtained through other methods, and was adequately assessed. On that basis, the employer would be arguing that the process as a whole met the requirements. [10] Counsel submitted that in any event, even if some efficiency is to be obtained, bifurcation would result in substantial unfairness and prejudice to the employer. Counsel relied on case law, in submitting that the Board?s decision whether or not to uphold a job competition process, must be based on a consideration of the whole competition process. Therefore, counsel submitted that even if the Board concludes that some efficiency is to be achieved through bifurcation, it should not be done at the expense of the employer?s right to fairness. [11] The Board has dealt with this very issue previously in Re Group grievance, Stewart/Stevenson/Wichar/Stevenson, 1999/98 (Harris).The issue to be decided is set out at p. 2 as follows: 5 These matters involve a job competition for the position of inmate records clerk at the Northern Treatment Centre in Sault Ste. Marie. Four members of OPSEU have grieved that the competition was not run fairly. This interim decision deals with a request by the union that the issues at the hearing be bifurcated such that the Board would first determine whether the employer had failed to review the experience and work performance of the grievors. In essence, the Union says that the employer relied only on the point scoring of the interviews with the candidates. Such a limited consideration of the candidates was said to be a fatal procedural flaw that vitiates the job competition, irrespective of the final point spread between the grievors and the successful candidate. [12] In that case, apart from the allegation of exclusive reliance on interview scores, the union had alleged bias, and had challenged the relevance of, and weight allotted to the questions and answers. [13] As in this case, there the union submitted that there is ?? ample jurisprudence of the Board supporting the proposition that reliance on candidate interviews without additional, specific consideration of the experience and performance of the candidates may be fatal to the job competition process? (p.6). [14] The employer?s position in that case is set out at p. 5 as follows: The Employer submitted that a full examination of the evidence will show that any actual deficiencies in the process would not have altered the result. That is, the overall quality of the competition process led to a fair result. Specifically, the candidates were evaluated on the relevant qualifications as set out in the position specification, the methods used to assess the candidates were valid in testing the relevant qualifications, no irrelevant factors were considered and the employer accumulated information in a systematic way concerning all the applicants. Further, the previous experience of the applicants was considered in that previous experience in an inmate records position was required in order to get an interview. Further, it said that there was no evidence that there were performance appraisals in the candidates? files. The employer said that it would be put at a disadvantage if the issues were bifurcated because the fairness of the job competition process can only be assessed on the totality of the evidence. 6 [15] The Board at p. 8 observed that ?? efficiencies may only be considered where there is no compromise of procedural fairness and natural justice before the Board itself?. The Board observed that while it has established various criteria by which to judge a competition process, those criteria are not to be taken to be a list of essential elements. It held that ?? flaws found in one or more areas may not be material when the entire process is considered? (p.8). The Board concluded that ?the balance of convenience in these matters favours hearing all the evidence on all the issues as in the normal course?. [16] Mr. Brewin, conceded that he made the same arguments before Vice- Chair Harris unsuccessfully. However, he urged me to consider the fact that having rejected bifurcation, Vice-Chair Harris held hearings on twelve days before ordering that the competition be re-run. He pointed out that Vice-Chair Harris was concerned with just one position and five grievors. In the present proceeding, ten positions and a larger number of grievors were involved. [17] I infer from union counsel?s submissions that he was suggesting that had Vice-Chair Harris bifurcated the hearing as requested, the same remedy of a re-run could have been obtained, without the need for a 12 day hearing. However, one can only speculate as to what evidence would have been led in a bifurcated hearing, and how substantial the ?savings? would have been. In any event, it is clear that Vice-Chair Harris?s concern was about procedural fairness and natural justice. He concluded, quite correctly in my view, that savings in resources and time, ought not be pursued at the expense of procedural fairness and natural justice. 7 [18] Had the Board been faced with an agreed statement of facts to the effect that the employer relied exclusively on interview scores, and was called upon to make its decision on the basis of those agreed facts, the situation would have been different. In those circumstances, by ordering the bifurcation sought by the union, there would be a significant saving of resources and time. Moreover, there would not be any unfairness to the employer, since it would not be deprived of the opportunity to put any evidence to the Board against its wishes. A bifurcation may well have been appropriate in those circumstances. [19] However here, the employer has explicitly denied that it relied solely on the interview process. It has indicated that it would be attempting to convince the Board that when the competition process is considered in its entirety, it had sufficiently assessed the applicants? experience and work performance, and that therefore, notwithstanding any flaws, the results of the process should be allowed to stand. Vice-Chair Harris?s statement at p. 8 that ?It is not possible to fairly review the process in this case without looking at it in its entirety? is true in the instant matter as well. [20] In conclusion, it is not at all clear that a substantial efficiency will be gained by a bifurcation, given the positions taken in this case by the respective parties. In any event, in light of the position taken by the employer in defence of the grievances, it would be unfair to deny the employer the opportunity to make its case on the basis of the evidence relating to the entire competition process. For those reasons, the union?s motion for bifurcation is denied. 8 [21] ISSUE RE ORDER OF PROCEEDING The union acknowledged that it bore the legal onus of establishing that the employer contravened the collective agreement in the manner it carried out the job competitions. Counsel also acknowledged the general principle that the party with the legal onus proceeds first. However, he submitted that boards of arbitration have recognized that in certain circumstances, it is appropriate to depart from that general rule in the interest of efficacy and expedition of proceedings. He referred to accommodation cases as an example. He submitted that in job competition cases, employers often agree to proceed first because it makes sense to do so. He moved that the Board order the employer to proceed first in this case, over its objection. [22] Union counsel, submitted in the alternative, that if the Board does not agree with the union?s request and requires that the union proceed first, it should permit the union to call managers and/or interview panel members during its case, and to cross-examine them. This alternate position was not raised in the discussions that preceded the hearing, nor during the opening statements. A decision on such a request to depart from usual evidentiary principles must be made only following an opportunity for full and complete legal submissions. Given the lack of prior notice, it was clear to me that such submissions would not be forthcoming. For that reason, I orally ruled that I would not be entertaining that request at that stage. If, in light of the Board?s ruling on the order of proceedings, the union wishes to pursue that position, it could do so following notice to the employer in advance of the hearing. 9 [23] The union referred me to Re Deloro Satellite Inc., [2001] O.L.A.A. No. 943 (Jackson). Arbitrator Jackson at para.7 set out his understanding of the basis for the arbitral jurisprudential convention that in competition cases the grievor proceeds first and bears the ?initial onus? as ?one that reflects? tradition, practicality and fairness. He proceeded to write as follows: Practically speaking, it seems reasonable in most such cases to assume that, if someone grieves that a more junior employee was given a position for which he believes himself to have been both qualified (or more qualified) and entitled under the collective agreement, then the grievor should know the basis of his or her grievance. On what basis has he or she concluded that the agreement was violated? Why does he or she, and not the incumbent, deserve the position? And, finally, given that it is presumably the grievor who knows best why he believes his rights were violated, then as a matter of fairness, he should be required to proceed first with his evidence and at least establish that assertion on a prima facie basis so that the employer knows what case must be met. [24] Arbitrator Jackson then set out the union?s position as follows at para 8: On the other hand, Mr. Stewart makes a good argument: given the unusually spare wording of Article 9.02 ? particularly when combined with the facts that the position in question was principally that of a leader rather than a craftsman and that none of the grievors was interviewed ? it would be more difficult for grievors to understand what specific case they would have to make to effectively dispute that decision. As noted above, they may well have been sure in their own minds that they were at least as well qualified than one or both of the two successful candidates; on the other hand, that is a different matter from being able to argue persuasively in an arbitration hearing that the employer violated the collective agreement in making the decisions it did. [25] At para. 9, the Board set out its conclusion: As a purely practical matter, I note that the two parties in this case concentrated their arguments on two different aspects of this dispute: the Union emphasized the question of order of proceeding while the Company?s principal concern was onus of proof. For this reason, and bearing in mind my comments above about the unusually spare wording of Article 9.02 and the nature of this particular opening, I am going to take the relatively unusual step of separating the questions of order-of- proceeding from onus. For reasons outlined in the paragraph above, as a purely practical matter-in order that the issues can be identified in the most efficient manner ? I will order that the employer proceed first with its evidence, so that the grievors will be clear on the basis of the decision and so be in a position to argue (or even to decide whether or not to argue) that it violated the agreement in doing 10 so. The grievors, however, will still bear the onus of proof. In the arguments presented, there was no basis on which to change the procedural convention that ?he who asserts must prove?, which reflects both tradition and fairness. While separating onus and order, we will adapt the hearing procedure in whatever way is necessary to ensure both fairness and a full and proper hearing for both parties. [26] Union counsel submitted that practicality and fairness requires that the union be not called upon to put its case in until the employer had presented all of its evidence as to how it assessed the relative experience and performance of the applicants.The employer has asserted that it did such an assessment, but how it did so is peculiarly within its knowledge. Counsel submitted that the union cannot fairly present its case, without knowledge of the employer?s evidence in that regard. [27] Employer counsel submitted that the Board should not depart from the practice of requiring the union to proceed first in job competition cases, a practice which has been described by the G.S.B. as ?normal? (Re Eaton, 0629/85 (Knopf), ?customary? ( Re Jensen, 2511/90, Devlin), and ?long- standing? (Re Ford, 2065/90, Gorsky). Citing Re Dufferin-Peel Roman Catholic Separate School board, (1985) 21 L.A.C. (3d) 368 (Kennedy), th Re Whitecourt-Fox Creek General Hospital, (1994) 39 L.A.C. (4) 430 (Smith) and Re Ford (supra), he submitted that, although not common, the employer has the right to move for non-suit in job competition cases, as in any other case where the union bears the legal onus. In those cases the employer had successfully moved for non-suit. Forcing the employer to proceed first would result in denial of this right to the employer. [28] The only authority the union cited to me where the employer was ordered to proceed first in a job competition case is Re Deloro Satellite Inc. (supra). There, the arbitrator notes that he was taking ?a relatively 11 unusual step?. He states that he was doing so ?as a purely practical matter,? for reasons set out ?above? in para. 8. In that paragraph he refers to the ?unusually spare wording of article 9.02 ? particularly when combined with the facts that the position in question was principally that of a leader rather than a craftsman and that none of the grievors was interviewed?. He refers to the union?s argument that in those circumstances, ?it would be more difficult for grievors to understand what specific case they would have to make to effectively dispute that decision?. While it is not obvious from the reasoning why the Board in that case considered it to be exceptional, so as to justify a departure from the usual procedure, it is clear that based on the particular collective agreement language, and the particular facts before it, the Board considered such a departure to be justified. [29] In contrast, in the present case, the union did not suggest that there was anything exceptional about these competitions. The crux of its argument was that only the employer had knowledge of what it did to assess experience and performance. That argument would apply in every job competition case. Accepting the union?s position in this case would amount to a reversal of the general rule for all job competition arbitrations. This Board has explicitly considered and rejected this very argument in the same circumstances as here. In Re Eaton, (supra) at pp. 1-2, the Board states: At the outset of the proceedings, counsel for the Union asked this Board to depart from its normal practice and to require the Employer to present its case first, although the Union acknowledged that it bears the ultimate legal onus. It was submitted by counsel for the Union that the requested procedure would be more fair because the Employer has the greater knowledge of the competition process and this would enable the Union to cross-examine the incumbent. Otherwise, the Union submitted that it would be at a disadvantage. Counsel for the Ministry responded by pointing out that the Union had been supplied with full disclosure prior to the 12 hearing. Further, while the Ministry had not intended to call the incumbent as a witness, counsel for the Ministry indicated that she would raise no objection to the Union if it applied to cross-examine Mr. Beagan. Finally, counsel for the Ministry suggested that the Ministry would be at a disadvantage by proceeding first because it has no idea of the case it had to meet against the grievor because the Ministry did not know the basis of the grievor?s claim of superior qualifications or what were to be alleged as the flaws in the competition process. [30] After considering the submissions, the Board ruled that the Union should be required to present its evidence 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. [31] In Re Ford (supra) the Board cited the foregoing excerpt from Re Eaton, and at p. 8 observed that ?The jurisprudence of the Board referred to in theEaton case is of long standing?. At p. 10 the Board held as follows: For the above reasons, we can see no reason to depart from the normal practice of the Board as set out by Ms. Knopf in the Eaton case. The Grievor, in the case before us, on the basis of the evidence relied upon by counsel for the Union, has not yet passed the threshold to establish a basis for calling upon the Employer to adduce evidence in support of the result reached on its behalf. It may be that the responsibility of the Grievor to reach the threshold for establishing a prima facie case which would then require the Employer to adduce evidence in support of its decision will be somewhat less because of the fact that we are dealing with a lateral transfer. At this time we cannot know whether this will be the case. The normal practice will not be unfair to the Grievor any more than it was in the Eaton case. The Union has received the necessary documents in order to obtain a significant understanding of the case of the Employer. There was filed with us an order of the Board in this case, made on consent, dated March 12, 1991, dealing with the production of documents and we understand that production has already taken place. Should it become necessary to do so, the Board is not likely to look unfavourably on a request made on behalf of the Grievor to cross-examine the incumbent so as to avoid the difficulty adverted to in the Eaton case and the Union will be afforded the same right of Reply referred to in Eaton. 13 [32] I note that in Re Eaton, as well as in Re Ford, in refusing to order the employer to proceed first, the Board made reference to the issues of disclosure by the employer, the union?s ability to cross-examine adverse witnesses it may choose to call, and the union?s entitlement to a full right of reply evidence. All of those factors would equally apply here. If not already received, the union is entitled to seek full disclosure from the employer as to the process it claims to have followed in assessing experience and performance. It may seek consent from the employer to cross-examine any witness the union elects to call to testify. Absent consent, it may seek permission from the board to do so. Also, as is commonly done in job competition cases in recognition of the union?s difficulty of anticipating the employer?s evidence, the union will be allowed a full right of reply. [33] As per the usual practice, the Board requires the union to proceed first with its case and establish a ?prima facie case?, before the employer becomes obliged to explain and defend the process it followed. However, the Board does not hold the union to a high threshold in meeting the prima facie case requirement. That probably explains why, as employer counsel acknowledged, motions for non-suit are uncommon in job competition cases. [34] Given the availability of those safeguards, and in light of the absence of any unusual or exceptional circumstances in these job competitions, I conclude that a departure from the usual practice of this Board is unwarranted. Therefore, the union is required to proceed first as per usual practice. 14 [35] The hearing will continue on the dates scheduled. I remain seized with jurisdiction. nd Dated at Toronto this 22 day of December 2008. Nimal Dissanayake, Vice-Chair