Ontario Public Service Employees Union v. The Crown in Right of Ontario, 2000 CanLII 20518

GSB # 1999/98

99A255

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINNG ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

Grievor

Between: Ontario Public Service employees Union

(Group Grievance – A. Stewart/D. Stevenson/D. Wichar/L. Stevenson)

Employer

-and-

The Crown in Right of Ontario

(Ministry of Solicitor General & Correctional Services)

Before: Daniel Harris Vice Chair

For the John Brewin

Grievor Labour Relations Consultant

Ryder Wright Blair & Doyle

Barristers & Solicitors

For the Mary Pat Moore

Employer Counsel

Legal Services Branch

Management Board Secretariat

Hearing September 15, 2000

DECISION

THE PROCEEDINGS:

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.

THE FACTS:

The parties agreed on the following facts:

1. The matter is properly before the Grievance Settlement Board and the Grievance Settlement Board has jurisdiction.

2. The Collective Agreement with respect to Working Conditions and Employee Benefits between Management Board of Cabinet and the Ontario Public Service Employees Union, dated January 1, 1994 and December 31, 1998 was in effect at the time of the grievance.

3. At the time of the grievance, the grievor Ms. Deborah Stevenson was classified as Inmate Records Clerk at Sault Ste. Marie Jail, the grievor Ms. Anne Stewart, was on secondment to the Ministry of Community and Social Services as an Income Maintenance support staff from her classified home position as Records Clerk for the Parry Sound Jail, the grievor Ms. Debra Wiwchar was classified as Supervisor, Inmate Records Supervisor at the Sault Ste. Marie Jail and the grievor Ms. Linda Stevenson was classified as a Trust/Canteen Clerk for Inmate Records at the Saul Ste. Marie Jail. The Ministry of Solicitor General and Correctional Services employed these grievors at the time of the grievance.

4. The Opportunity Bulletin (job posting) for the Records Supervisor (OAG-11) at Northern Treatment Centre was advertised on July 20, 1998 with a closing date of July 31, 1998. (Copy attached. Also at Tab 1 in Employer's Book of Documents).

5. The successful candidate in the competition SGCS 5045-98 for Records Supervisor at the Northern Treatment Centre was Mary Ellen Thompson. At that time, she was an Accounts Payable/Receivable Clerk with the Northern Treatment Centre.

6. There were nine applicants to the competition of whom 8, including Ms. Thompson, Ms. D. Stevenson, Ms. Stewart, Ms Wiwchar and Ms. L. Stevenson were interviewed by the selection panel.

7. The selection panel members for this competition were Ms. Sue Morin, Office Manager, Northern Treatment Centre, Mr. Peter Ellis, Recreation Manager, Northern Treatment Centre and Ms. Narchieka MacRae, a Human Resources consultant (acting), Northern Region Office, Ministry of Correctional Services.

8. The selection of Ms. Thompson for this vacancy is the subject of Ms. D. Stevenson, Ms. Stewart, Ms. Wiwchar and Ms. L. Stevensons' grievance.

THE SUBMISSIONS OF THE PARTIES

The union said three issues arise in this case. The first is that the grievors, in particular Debra Wiwchar, had vastly superior experience to the successful candidate. Ms. Wiwchar was also said to have had well above average job performance ratings in her ten years doing the identical job at the Sault Ste. Marie Jail. The job competition process scored the candidates on the basis of an interview as well as written questions and answers. There was said to be no inquiry into the experience of the candidates, review of job performance appraisals nor inquires of the candidates' supervisors. The second issue is that of bias. The union will call evidence to establish that there was inappropriate, direct managerial interference in the process that gave unfair advantage to the successful candidate. Finally, the union will call evidence regarding the relevance of the questions asked and will challenge the propriety of the weight given to the questions and answers.

The union submitted that if it is successful in proving its assertions on the first issue, the employer's failure to look beyond the interviews of candidates is fatal to the process and will require, in the very least, the rerunning of the competition on terms set by the Board. In that event, there would be no need to inquire into the other two issues, saving both time and the need to explore the allegations of bias that will inevitably cause serious damage to the work environment.

The union relied on the following authorities: OPSEU (Leslie) and Ministry of Transportation and Communications, 126/79 (Draper); OPSEU (Quinn) and Ministry of Transportation and Communication, 9/78 (Prichard); Re: OPSEU (MacLellan and DeGrandis) & Ministry of Government Services, 506/81 (Samuels); OPSEU (Nixon) and Ministry of Transportation, 2418/87 (Fisher); OPSEU (Sauve) and Ministry of Transportation, 1695/91 (Gray); OPSEU (Stephens) and Ministry of Community and Social Services, 147/94 (Dissanayake); OPSEU (Alam) and Ministry of Community and Social Services, 140/84 (Roberts).

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.

The employer relied on the following authorities: Re: OPSEU (MacLellan and DeGrandis) & Ministry of Government Services, 506/81 (Samuels); OPSEU (Strazds) and Ministry of Natural Resources, 88/83 (Joliffe); OPSEU (Simmons) and Ministry of Government Services, 213/83 (McLaren); OPSEU (Saras) and Ministry of Labour, 457/85 (Swan).

REASONS FOR DECISION:

In deciding whether to bifurcate proceedings the Board seeks to maximize efficiency in the hearing process. If the early resolution of an issue may be dispositive of the matters before it, then bifurcation is a useful proceedural tool, provided there is no unfairness to any party in following such a procedure. Job competition grievances heard in full generally involve a thorough review of the duties and responsibilities of the contested positions against the skills, abilities and seniority of the candidates, including the successful incumbent. That inquiry is often lengthy. Here there are five individuals involved. In these matters the union also alleges that there was inappropriate conduct by a manager that favoured the incumbent. As submitted by the union, that inquiry will involve allegations that may have a long-lasting, negative impact on working relationships.

In the circumstances of this case, the union says that the alleged procedural defects in the job competition process may result, in and of themselves, in the vitiating of the competition. There is said to be 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.

The oft cited case of MacLellan and DeGrandis synthesized the previous Board jurisprudence as follows:

The jurisprudence of this Board has established various criteria by which to judge a selection process:

1. Candidates must be evaluated on all the relevant qualifications for the job as set out in the Position Specification.

2. The various methods used to assess the candidates should address these relevant qualifications insofar as is possible. For example, interview questions and evaluation forms should cover all the qualifications.

3. Irrelevant factors should not be considered.

4. All the members of a selection committee should review the personnel files of all the applicants.

5. The applicants' supervisors should be asked for their evaluations of the applicants.

6. Information should be accumulated in a systematic way concerning all the applicants.

See Remark, 149/77; Quinn, 9/78; Hoffman, 22/79; Ellsworth et al, 361/80; and Cross, 339/81.

The guidelines laid down in MacLellan and DeGrandis have been followed in numerous subsequent matters before the Board and are well known to the parties. However, they have not been taken to be a list of essential elements. The cases relied upon by the employer in the instant matters are examples of job competitions that were found to meet the appropriate standard of fairness notwithstanding various flaws in the process. In Alam (140/84) the issue was summarized as follows:

Summing up, then, it is the conclusion of the Board that while this competition was, in some respects, flawed, it was not fatally flawed. As is well established in the jurisprudence of the Board, job competitions must be evaluated in a realistic light; they need not achieve perfection in order to pass the scrutiny of the Board. So, for example in Re Saras and the Ministry of Labour (1987) G.S.B. #457/85 (Swan), the Board concluded that a selection process as a whole was not unfair nor calculated to lead to an incorrect result despite the fact that the panel did not look at the complete personnel files of the candidates, the scoring was by consensus and there were incorrect assessments of the attendance records and communications skills of the grievor and the successful incumbent. In Re Simmonds and the Ministry of Government Services (1983), G.S.B. #213/83 (McLaren), the job competition passed scrutiny despite the face that there was no consultation of personnel files, no consultation with supervisors and consensus scoring. In Re Starzds and Ministry of Natural Resources (1983), G.S.B. #88/83 (Jolliffe), a job competition was upheld despite flaws similar to those found in Simmonds, supra.

The issue at this stage of the proceedings is whether there are any efficiencies to be obtained in proceeding first to consider the procedural fairness of the job competition, as framed by the union's first issue. As set out above, efficiencies may only be considered where there is no compromise of procedural fairness and natural justice before the Board itself. Here, there is no bright line that realistically divides the evidence between the issue of procedural fairness relating to consideration of the grievors' work performance and experience in isolation from the other aspects of the job competition process in these matters. The evidence relating to the issues of procedural fairness raised by the union's first issue is not so obviously distinct as to permit it to be easily marshaled separately. In my view there is great potential for the hearing to bog down into disagreement over what evidence is and is not relevant to the proposed circumscribed issues.

Further, it is the overall job competition process that is under scrutiny. As set out in Alum, and the cases therein referred to, flaws found in one or more areas may not be material when the entire process is considered. It is not possible to fairly review the process in this case without looking at it in its entirety. Indeed for the Board to do less than review all of the criteria set out in MacLellan would be a less rigorous review than it will require of the employer in the first instance.

Accordingly, the balance of convenience in these matters favours hearing all the evidence on all the issues as in the normal course.

DECISION

The union's request to bifurcate the issues is denied.

Dated at Toronto this 25th day of September, 2000