GSB#2003-0001
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
Association
- and -
The Crown in Right of Ontario (Ministry of Government Services)
Employer
BEFORE
Susan L. Stewart
Chair
FOR THE ASSOCIATION
Gary Gannage President Association of Management, Administrative and Professional Crown Employees of Ontario
FOR THE EMPLOYER
David Logan Assistant Deputy Minister Ministry of Government Services
JOINT WRITTEN SUBMISSIONS
February 6, 2014
Decision
1In accordance with the agreement of the parties the Employment Screening Checks Operational Guidelines, Appeal Process for AMAPCEO-represented Employees, attached hereto as Appendix A, hereby constitute an order of the Board.
Dated at Toronto, Ontario this 7th day of April 2014.
Employment Screening Checks Policy
Operational Guidelines
Appeal Process for AMAPCEO-represented Employees
APPEAL PROCEDURE (Expedited Appeal Process)
Purpose
The purpose of the Employment Screening Checks Appeal Procedure is to set out the structure, steps and timelines for filing, hearing and issuing decisions on appeals described in the Employment Screening Checks Policy (2012), Section 14 - Appeal Process which states:
"A regular employee may only appeal the decision to not grant security clearance as set out in s. 12 of this policy in accordance with the expedited appeal process outlined in the operational guidelines of this policy."
Section 12 states the following:
12.1 Every regular employee who refuses or fails to obtain the required security clearance for their home position shall be considered for redeployment to a permanent vacancy for six (6) months as set out in the applicable collective agreement or the Employment Policy,
12.2 Every regular employee who refuses to consent to a security screening clearance re-check for their home position, at the same clearance level or a lower level (i.e. the general level or enhanced level), shall not have entitlement to redeployment in accordance with 12.1.
Further, the purpose of the Employment Screening Checks Appeal Procedure is to provide an expeditious hearing by a Chair/Vice Chair with expertise in security clearance matters to review decisions where clearance has not been granted to a regular employee for their home position as a result of refusing or failing the clearance, and to protect the privacy of employees filing the appeal.
To clarify, employees who have failed to obtain a screening clearance for their home position have access to the expedited appeal process as long as the failure to obtain clearance is NOT the result of the employee refusing to consent to a security screening clearance recheck at the same clearance level or a lower level than originally screened.
Application
This appeal process applies only to regular employees who refuse or fail to obtain security clearance for their home position. It is not available to employees who refuse a security screening clearance recheck for their home position, at the same clearance level or a lower level.
Scope of an Appeal
An appeal under this process shall be limited to an appeal of a decision made by the Negotiations and Security Branch (NSB) to deny security clearance to a regular employee where the employee's home position requires an employment screening check.
Filing an Appeal
A regular employee represented by AMAPCEO who wishes to appeal a decision of the NSB not to grant clearance for his/her home position shall, complete an Appeal Form and forward the completed Appeal Form to AMAPCEO (Designated Contact) who will forward to the Grievance Settlement Board (GSB) Registrar and to the Employment Screening Checks Appeal Registrar (ESC Appeal Registrar).
The appeal must be filed with the GSB Registrar and the ESC Appeal Registrar within 30 working days of receipt by the employee of the decision of the NSB.
The Appeal Form will include:
the employee's name, WIN #, telephone number, unit, division and ministry
the file number (NSB case #) assigned to the appeal
a brief explanation of the basis for the appeal
copy of the NSB decision
AMAPCEO representative information
consent to release information for the purpose of the appeal
The Appeal Form will be sent out to the employee with the NSB decision and will be available from the manager or ministry contact, or can be downloaded from the OPS Directives and Policies intranet site.
Scheduling the Appeal
The GSB Registrar shall contact the parties to schedule a hearing before a Chair/Vice Chair selected as outlined below from a designated list of Chairs/Vice Chairs. The hearing shall be held within 20 working days of the date of filing the appeal, or as soon as possible thereafter.
Chair/Vice Chairs
Appeals involving employees represented by AMAPCEO shall be heard by the Chair of the GSB or by a Chair/Vice Chair selected on a rotation/availability basis from the list of Chairs/Vice Chairs appointed to the GSB listed in Schedule A to this Appendix.
Chairs/Vice Chairs shall have been provided with a joint information session on security clearance matters.
Disclosure
The employee's AMAPCEO representative, Employer's representative and the Chair/Vice Chair shall be provided with the Appeal Form and, subject to restrictions noted below, all supporting material related to the appeal/all information reviewed by NSB in making its decision to deny clearance at least 10 working days prior to the hearing.
Hearing Procedure
The Chair/Vice Chair may adopt such procedures and extend timelines as he or she considers appropriate in the circumstances, having regard to the nature of the appeal, the need for a fair process and the desirability of ensuring the appeal is concluded in an expeditious manner.
The hearing will generally take the following format:
The Employer's representative shall make the Employer's submission to the Chair/Vice Chair.
The employee/employee's AMAPCEO representative shall make the employee's submission to the Chair/Vice Chair.
The Chair/Vice Chair may ask for additional information or clarification on information provided by either of the parties.
Appropriate specialists may be called upon by the Chair/Vice Chair in an advisory capacity to provide information on the nature of specific security clearance processes.
Chair/Vice Chairs retain all the powers and jurisdiction under relevant statutes and regulations of Chair/Vice Chairs appointed to the GSB.
Decisions
The Chair/Vice Chair shall make a decision as to whether a security clearance should be granted, denied or sent back to NSB for re-determination or may grant any other appropriate relief within his or her jurisdiction.
The Chair/Vice Chair shall dismiss an appeal that is not within his or her jurisdiction and shall give the parties an opportunity to make submissions before dismissing the appeal.
Normally, decisions of the Chair/Vice Chair are decisions of the GSB and shall be in writing and include a brief supporting rationale. In order to protect the privacy of the employee and any other individuals whose personal information is raised in the appeal, decisions will be edited and all personal identifying information will be removed from the decision, including the name and work areas of the employee. Decisions shall not refer to any potentially injurious information which, if it were disclosed to the public, could injure public safety and security, or the lives and safety of members of the public. Decisions will be reviewed by the Chair of the GSB to ensure that this has been done. After such review, the decisions will be distributed to the parties.
Release of Decisions
Decisions of the Chair/Vice Chair shall be released within 10 working days of the completion of the hearing. In extenuating circumstances and on agreement of the parties, this period may be extended to 20 days.
The parties will have 10 working days following the release of the GSB decision to make written submissions to the Chair/Vice Chair on whether the decision should be publicly released, not publicly released, or publicly released after modifications in order to protect public safety and security and the privacy of the employee and other individuals whose personal information is raised in the appeal.
The Chair/Vice Chair will make a determination and advise the parties accordingly. The Chair/Vice Chair will then forthwith publicly release, publicly release with modifications or not publicly release the decision in accordance with the determination. If no submissions are made during this time, then the decision will be released publicly.
Decisions of the Chair/Vice Chair are final and binding. Decisions that are not released publicly will be binding on the parties although they have no precedential value. Decisions that are released publicly will be binding on the parties and have precedential value.
Confidentiality
Chairs/Vice Chairs, Employer representatives, AMAPCEO representatives, employee, and any other persons involved in the appeal shall agree to maintain the privacy, security and confidentiality of the personal information of the employee and other personal information raised in the appeal process through all stages of the appeal process except as required by law.
The persons involved in the appeal agree that all documents provided shall be maintained in a secure fashion in order to prevent any unauthorized disclosure of the documents and, without limiting the generality of this obligations, shall maintain the confidentiality of any potentially injurious information which, if it were to be disclosed to the public, could injure public safety and security, or the lives and safety of members of the public.
Costs
In accordance with the practice of the parties, the fees and expenses of the Chairs/Vice Chairs shall be paid equally by the parties to the GSB (AMAPCEO and Employer).
Duties and Responsibilities
The Employee Relations Division is responsible for:
•Designating the Employment Screening Checks Appeal Registrar (ESC Appeal Registrar) The ESC Appeal Registrar acts as administrative support to the appeal process.
•Ensuring that the ESC Appeal Registrar has passed a security clearance and trained on the related aspects of privacy and confidentiality.
•Ensuring that confidential and private documentation are appropriately secured and protected.
File Management
Duties of the ESC Appeal Registrar
The ESC Appeal Registrar shall:
Receive all Appeal Forms from AMAPCEO, enter the NSB log number to the appeal and use this log number in all documentation related to the appeal process.
Request in writing that NSB forward to the Appeal Registrar a copy of the NSB decision, employment screening check information and any related assessment documentation. NSB shall send the material requested to the ESC Appeal Registrar in a hand-delivered/secured courier envelope marked CONFIDENTIAL.
Send the material to the GSB Registrar and the employee's AMAPCEO representative at least 10 days before the hearing, notwithstanding any earlier disclosure to the employee.
Maintain a log of dates Appeal Form is received, request is sent to and documentation is received from NSB, appeal is scheduled and heard, board decision is received.
Receive the appeal decision.
Lock the sealed envelope in a secure file.
Protection of Privacy and Confidentiality by the Union
AMAPCEO shall determine their own internal processes to maintain the confidentiality of appeal information and protect the privacy of individuals involved in the appeal process and maintain the confidentiality of any potentially injurious information which, if it were to be disclosed to the public, could injure public safety and security, or the lives and safety of members of the public.
Duties of the GSB Registrar
The GSB Registrar shall:
Schedule the appeal hearing before a Chair/Vice Chair from the roster in Schedule A or B as appropriate. The hearing to commence within 20 working days of the date of filing the appeal.
Provide notification in writing to AMAPCEO, employee and Employer representative of the hearing date.
Receive the appeal material sent by the ESC Appeal Registrar. At least 10 working days before the hearing, send by hand delivery or secured courier copies of NSB material to the Chair/Vice Chair, employee and/or his/her representative and Employer representative in an envelope marked CONFIDENTIAL.
Maintain a log of dates Appeal Form is received, request is sent to and documentation is received from NSB, appeal is scheduled and heard, board decision is received.
Within 10 working days of the completion of the hearing, receive the decision of the Chair/Vice Chair.
Provide written notification with the decision of the Chair/Vice Chair to the ESC Appeal Registrar, AMAPCEO, employee and Employer representative by hand delivery or secured courier in an envelope marked "CONFIDENTIAL".
Provide written notification of the decision to NSB and attach the decision of the Chair/Vice Chair.
Seal the original copy of the Chair/Vice Chair's decision in an envelope marked with the log number, name of Chair/Vice Chair, hearing date, date copies were sent to parties at the hearing.
Lock the sealed envelope in a secure file.
Release of Decisions
Decision template to be developed.
Schedule "A"
Grievance Settlement Board
Susan Stewart (Chair)
Marilyn Nairn
Rick Brown
Ken Petryshen