GSB#2009-2592

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Association of Management, Administrative and Professional Crown Employees of Ontario

(Vander Kooij)

Association

• and -

The Crown in Right of Ontario

(Ministry of Attorney General)

Employer

BEFORE

Bram Herlich

Vice-Chair

FOR THE UNION

James McDonald

Sack Goldblatt Mitchell LLP

Barristers and Solicitors

FOR THE EMPLOYER

Cathy Phan

Ministry of Government Services

Labour Practice Group

HEARING

October 21, 2010.

Decision

1At the commencement of the hearing into the merits of this dispute, the Association moved that certain aspects of the case be bifurcated.

2This is a dispute which arises from a job competition in which the Employer failed to offer a position to the Complainant, Lisa Vander Kooij. Some 8 identical positions had been posted in the competition in question. Less than 8 of the applicants were offered permanent positions as a result of the process.

3The Association raises two issues which it asserts can and should be determined separately from the entirety of the case, namely:

1. Whether the complainant, who was qualified for one of the positions at issue should, as such, have been awarded one of the three permanent positions which were not awarded on a permanent basis to any of the candidates; and

2. Whether the competition was fundamentally flawed because the Employer failed to take into account the Complainant’s previous experience in the position at issue (Client Representative) and in a higher rated position doing the same work (Senior Client Representative).

4If the case cannot be disposed of on the basis of either of the 2 enumerated issues, the Association will advance the position that the Complainant ought to have been awarded more points for her performance during the competition (the interview and written assignment). The evidentiary terrain required to be covered by that inquiry would be substantially greater than that necessary to dispose of either or both of the enumerated issues. That might unnecessarily protract these proceedings – the Association estimates that the Board would have to hear the evidence of some 5 witnesses to take us through an intricate examination of the competition process. On the other hand, there is a real possibility, if we inquire into and determine the enumerated issues first, that the case before the Board can be disposed of without the need to hear detailed evidence of the selection process and the manner in which the Complainant was assessed.

5For its part, the Employer opposes the bifurcation of these proceedings, asserting that such a process would result in substantial prejudice to it. It submits that the Board ought to hear all of the evidence regarding the selection process, particularly in view of the Employer’s position that any flaws in the process would not have altered the final result. The Association’s drive for adjudicative efficiency should not come at the expense of the Employer’s right to defend itself and to present its full case.

6The procedural question for me to determine turns on whether the requested bifurcation (and the adjudicative efficiency it may yield) will work any unfairness on the Employer.

7The Board considered a request to bifurcate proceedings in the case of Steward et al. GSB File No. 1999-0098 (Harris), a job posting case referred to by both parties. While the Board recognized the potential value of bifurcation in appropriate circumstances, it declined to do so in that case, observing that it was not possible to fairly review the process in that case without examining it in its entirety. In that context, to focus on whether particular procedural flaws were present might well prove ultimately unhelpful (at least procedurally) if it might later be determined that such flaws were not ultimately material, i.e. their commission did not alter the result of the selection process. Not surprisingly, the Employer identifies this as the chief frailty in proceeding in the fashion advocated by the Association.

8Having considered the submissions of the parties, I am satisfied that the instant proceedings ought to be bifurcated, but not to the full extent advocated by the Association.

9While the Association may succeed in ultimately establishing that the Employer’s failure to take the Complainant’s previous experience into consideration constitutes a flaw in the selection process, I am sympathetic to the Employer’s submission that I ought not to address the final disposition of this issue without assessing the selection process as a whole. In other words, the Employer ought not to be prevented from calling its evidence in its entirety before any determination is made on this issue.

10I am not, however, persuaded that the same caution is necessary in respect of the Association’s first enumerated ground. Indeed, it may be that this issue can ultimately be argued on the basis of largely undisputed facts. It appears that there is a legal/interpretive issue which separates the parties and relates to the treatment of a qualified applicant (and the Employer has conceded that the Complainant was qualified for the position) in a job competition process under the terms of the collective agreement.

11It is not clear to me that a full and fair determination of this issue will require an inquiry into all aspects of the job competition process and there is an undoubted potential adjudicative efficiency to be gained by restricting our inquiry, at least initially, to this issue. Accordingly, I am prepared to have these proceedings bifurcated in the fashion requested by the Association, but only to the extent that it pertains to the first issue identified.

12This decision should not be seen as restricting the Employer’s right to call evidence which is arguably relevant to the determination of the issue in question. Any disputes regarding the proper scope of evidence to be heard in the matter can be dealt with as the hearing unfolds.