GSB#2014-4050, 2015-2079, 2015-2080

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 (Masliwec)

Association

• and -

The Crown in Right of Ontario (Ministry of Environment and Climate Change/ Ministry of Education/Ministry of Health and Long-Term Care)

Employers

BEFORE

Gordon F. Luborsky

Vice-Chair

FOR THE ASSOCIATION

Kelly Doctor Goldblatt Partners LLP Counsel

FOR THE EMPLOYER

Caroline Cohen Treasury Board Secretariat Legal Services Branch Counsel

CONFERENCE CALL

August 24, 2016

Decision

1The Board has convened a second telephone conference at the request of the Association to address a production issue in the context of three job posting grievances scheduled to be heard by the Board on October 31, 2016.

Agreed Facts

2The general background is set out in the Board’s Decision of May 12, 2016 [reported at 2016 CanLII 48161 (ON GSB)], which need not be repeated. The immediate dispute is related to the grievance at the Ministry of Health and Long-Term Care (GSB #2015-2080).

3As noted in the Board’s earlier Decision, Association counsel delivered the following e-mail communication to Employer counsel on April 13, 2016 concerning production demands in advance of the hearing:

I have reviewed the documents that you provided. I would note that the documents provided did not include any of the following:

• the notes from the interview of the other candidates;

• the CVs and cover letters of the other candidates;

• the written assignments of the other candidates;

• scoring grids or documents related to how to score the written assignment;

• any handwritten notes on the CVs, cover letters, or written assignments of Ms. Masliwec or the other candidates;

• notes from any reference checks that were performed;

• any other documents in the competition file related to the selection process involving the other candidates.

We are prepared to limit our request for production at this time to the 5 candidates selected for an interview. Please advise if these documents will be forthcoming.

[Emphasis added]

4Employer counsel’s responding e-mail of April 14, 2016 is reproduced below:

I am aware of what is missing from what I sent you. We are in the process of tracking down the rest of the material. I thought it would be helpful in the meantime to send you what I did have. I do not have any objection to producing it if she was in fact interviewed. My issue is with your production request on the other file. Thanks.

[Emphasis added]

5The “issue…on the other file” in the Employer’s e-mail refers to the grievance at the Ministry of Education (GSB#2015-2079), for which the Grievor was not granted an interview and was the subject of the first Decision. A new matter is now raised by the Association concerning disclosure of documentation related to the grievance at the Ministry of Health and Long-Term Care, in the following factual circumstances stipulated by counsel.

6The Grievor was one of some 37 applicants for the vacancy at that Ministry and was selected as one of five candidates for an interview to fill the opening. In deciding whether to grant an interview, the chairperson of the selection panel pre-screened all of the resumes and covering letters, assigning a specific score to each based on the information provided that was recorded on a single sheet of paper. All candidates who scored above a specified threshold were granted an interview, which in this instance included the Grievor.

7Subsequently, in addition to answering oral questions posed by a three-person selection panel, the five candidates chosen to be interviewed were required to submit written work, from which the full selection committee came to its decision on the successful candidate. Subject to checking that candidate’s references, the Employer confirmed the appointment of the successful candidate, which in the present case was not the Grievor.

8The parties agree the scoring sheet from the pre-screening process was not referred to in the interviews of the five candidates selected for interviews, nor was it relied upon in making the ultimate decision not to award the vacancy to the Grievor.

The Parties’ Submissions

9The Association now requests the scoring sheet for all 37 applicants to the disputed vacancy at the Ministry of Health and Long-Term Care. Association counsel submits the Association is entitled to that document because: (a) it is among the documents Employer counsel supposedly agreed to produce in the exchange of e-mail correspondence between counsel on April 13 and 14, 2016; (b) it is said to be “arguably relevant” to the dispute at the Ministry of Health and Long-Term Care because it may disclose whether the selection committee properly considered all relevant factors and/or over-emphasized the Grievor’s performance (or non-performance) during the interview in coming to its final decision; and (c) in any event, since article 18.6(a) of the collective agreement (reproduced in the earlier Decision between these parties) empowers the Board “to determine any question of fact or law including whether any requirement of Article 18 has been followed”, the Association argues that a conclusion any error was made at the pre-screening stage may be sufficient to vacate the entire selection process, requiring the Employer to redo the competition.

10The Employer resists the Association’s demand for the production of the pre-screening score sheet for the following reasons. First, Employer counsel submits that in her e-mail correspondence of April 14, 2016 she never intended to consent to the blanket production of all documentation related to the vacancy competition at the Ministry of Health and Long-Term Care; but rather operated on the premise that only relevant documents related to the five candidates actually interviewed for the position were being requested by the Association. Second, the pre-screening score sheet was in the Employer’s submission not arguably relevant because the Grievor was granted an interview and the ultimate decision of the full selection committee was made on the basis of the Grievor’s performance in the interview and on written work that did not involve the pre-screening score or pre-screening consideration of the candidates. Thus the Grievor suffered no prejudice even if the pre-screening process was faulty, according to the Employer. Third, in any event Employer counsel advised that the single piece of paper on which the pre-screening scores for all applicants was recorded has been misplaced. Counsel went on to explain that the person responsible for safeguarding the competition file has since left the Ontario Public Service and the fact that this document was missing was not discovered until after the instant grievances were filed. However, Employer counsel undertook to continue efforts to locate that misplaced document in the event the Board required its production.

Decision

11Having considered the parties’ representations, the Board has determined it is not appropriate to grant the Association’s request for an order that the Employer produce of the pre-screening score sheet, even if it can be located prior to hearing the merits of the instant grievances.

12The Board does not read Employer counsel’s statement in her e-mail of April 14, 2016 that, “I do not have any objection to producing it if she was in fact interviewed”, to constitute an agreement to produce the pre-screening scoring sheet. Rather, those words seem to refer only to documentation related to the five candidates selected to be interviewed for the vacancy, which included the Grievor.

13Given the parties’ stipulation that the score on the pre-screening score sheet was not referred to or relied upon by the selection committee in making its ultimate decision on the vacancy at the Ministry of Health and Long-Term Care, the pre-hearing disclosure of that score sheet has, in the Board’s opinion, no arguable relevance to the matters at issue in the grievance respecting that vacancy. It is only what happened at the interview stage and beyond where the Grievor was one of the five candidates selected for an interview that the Board considers relevant to its evaluation of whether the Employer violated the collective agreement in this instance.

14And while it may be correct that the Board has authority under article 18.6(a) of the collective agreement to determine whether the Employer properly followed all of the competition provisions set out in Article 18, any finding of a failure in the pre-screening stage of the selection process has no bearing on the Grievor’s particular circumstances. The grievance before the Board is not a general challenge of the Employer’s pre-screening process, but rather it more narrowly disputes the Employer’s decision not to select the Grievor as the successful candidate for the position as one of the five candidates chosen for an interview. Consequently, whether the pre-screening process complied or didn’t comply with the requirements of the collective agreement does nothing to advance or prejudice the Grievor’s challenge of the Employer’s decision in this case.

Disposition

15Thus for the foregoing reasons, the Association’s request for an order requiring the Ministry of Health and Long-Term Care to produce the pre-screening score sheet is denied.

16The hearing of the three grievances presently before the Board will accordingly proceed on their merits as originally scheduled.