GSB#2012-0169
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 (Kiradjian)
Association
- and -
The Crown in Right of Ontario (Ministry of Transportation)
Employer
BEFORE
Owen V. Gray
Vice-Chair
FOR THE UNION
James K. McDonald Sack Goldblatt Mitchell LLP Barristers and Solicitors Counsel
FOR THE EMPLOYER
Kevin Dorgan Ministry of Government Services Labour Practice Group Counsel
HEARING
January 30, 2013.
DECISION
1As a result of a reorganization, the complainant’s position as Quality Assurance Supervisor in the Highways Economics Solutions Branch of the Ministry of Transport was declared surplus on February 3, 2012. The Association does not challenge the bona fides either of the reorganization or of the elimination of the complainant’s position.
2The Association alleges that during the 6 month period after the complainant received his surplus notice, the Employer breached the pertinent provisions of Article 27 of the parties’ collective agreement by failing to directly assign him to either of two positions for which it says his employee portfolio demonstrated that he met the “entry level qualifications” requirement in Article 27.8.3(c). One was a “Quality Assurance Specialist” position in the Ministry of Natural Resources. The other was a “Lead, Release Management” position in the Ministry of Transport. Both were positions in respect of which the Redeployment Services Office had initially determined that the complainant might be qualified, and had referred his portfolio to pertinent members of line management for assessment. In both cases line management had determined that the complainant did not have the requisite “entry level qualifications.”
3The “Lead, Release Management” position became available for direct assignment as a result of its incumbent’s having listed it in the Voluntary Exit Registry. The Association alleges that when it and the complainant became aware of that listing, one of the things the complainant did was ask to job shadow the incumbent or another individual performing the same position. The Association says the Employer’s denial of that request was a breach of its training obligation under Article 27.14.4.
4After the grievor was denied direct assignment to the “Lead, Release Management” position, that position became the subject of a job competition in which the complainant has filed an application. The Association does not know what stage the competition process has reached, nor whether the grievor’s application has been “screened out.”
5Order of proceeding is a contentious issue in disputes of this kind. Without prejudice to its position generally that the employer should present its evidence first with respect to what the entry level qualifications for a position were and why an employee was determined not to have (or not to have claimed in his/her portfolio to have) those qualifications, the Association has agreed to present its evidence first on that and the Article 27.14.4 issue in this case. In that context, it seeks first to have full production from the Employer of any documents relevant to the entry level qualifications issue in respect of each of the two positions. Although the Employer has produced a number of documents, it has resisted producing documentation with respect to the job competition for the “Lead, Release Management” position. The Association also sought production of documents considered by, and notes made by, members of management in connection with the actual determinations that the complainant lacked entry level qualifications for the positions in issue.
6The Employer does not resist the general proposition that it should produce to the Association any documents it has that are relevant to an issue in dispute. There is no suggestion that the entry level qualifications for the “Lead, Release Management” position have changed. It seems entirely possible that at least some of the documents generated or assembled by the Employer when initiating and conducting a job competition for a position would be arguably relevant to a dispute about what the entry level qualifications for that position are. The fact that the documents may have been created or acquired (otherwise than for the purposes of the litigation of the dispute) after that dispute arose is irrelevant to whether they should be produced.
7After discussion, the parties were content that at this stage this production issue be addressed by an order that I made orally in the following terms:
The employer is to produce all documents in its possession, custody or power that are arguably relevant to a determination of the “entry level qualifications” for each of the positions in issue. For clarification, a document may be arguably relevant – and produceable – notwithstanding that it was not in existence at the time of the actions in question. The employer is also to produce all documents consulted or created with respect to this issue by any witness on whose testimony the employer may wish to rely.
The issue referred to in the last sentence is the issue whether the complainant’s portfolio disclosed that he had the entry level qualifications for a position in issue in these proceedings.
8The agreed-upon deadline for production in accordance with the aforesaid order is February 28, 2013. If in the course of ensuring and effecting the Employer’s compliance with this order Employer counsel finds that he needs clarification with respect to any particular class or classes of documents, that may be addressed in a hearing by teleconference involving myself and counsel.
9The hearing in this matter stands adjourned to March 14 and 27 and April 25, 2013.
Dated at Toronto this 1st day of February 2013.