GSB#2016-2421

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 (Jackson et al)

Association

• and -

The Crown in Right of Ontario (Ministry of Finance)

Employer

BEFORE

Nimal Dissanayake

Arbitrator

FOR THE ASSOCIATION

Kelly Doctor Goldblatt Partners LLP Counsel

FOR THE EMPLOYER

Omar Shahab Treasury Board Secretariat Legal Services Branch Counsel

HEARING

August 2, 2017

Decision

1Four employees at the Financial Services Commission of Ontario (“FSCO”), Christopher Jackson, Salvatore Maietta, Anna Teskey and Nick Vescio filed a group dispute on January 24, 2017. The Board was advised that Ms. Teskey’s dispute had subsequently been resolved.

2When the dispute as it related to the three remaining complainants came before the Board, the parties requested that the Board determine two preliminary motions by the Association. However, following some discussion, the parties advised that the motion relating to production had been resolved. That left for determination a motion for bifurcation of the proceeding. The facts material are not controversial and were presented through the opening statements and documents. In this decision, only the evidence that is relevant to the bifurcation issue will be reviewed.

3The complainants had been employed as mediators at the Dispute Resolution Branch of FSCO. Their mediator position was classified at level 6. In November 2014 legislation was enacted, which resulted in the gradual winding down of the FSCO Dispute Resolution Branch, and the removal of the mediation function from FSCO. Mediator positions at FSCO became surplus. The complainants received notice of layoff dated April 14, 2016, advising that their positions are declared surplus effective April 14, 2016, with a layoff date of October 14, 2016. The letter also included information about options available to the complainants, including the option of identifying vacant positions for targeted direct assignment under article 27.8.

4Article 27.8.1 provides:

An employee who has received notice of lay-off in accordance with this Article shall be assigned to a vacant position during his or her notice period provided that:

(a) The employee identifies the vacancy in accordance with Article 27.8.3, and indicates that he/she has received notice of layoff and is eligible for targeted direct assignment; and

(b) the employee meets the entry level qualifications for the position; and

(c) the vacancy is at the same level of the employee’s home position or any lower levels;

(d) there is no other AMAPCEO unit employee who has a greater length of continuous service and who is eligible for targeted direct assignment to the vacancy pursuant to this Article.

5Each complainant identified a vacancy that had been posted for one position of mediator at the Office of the Independent Police Review Director, Ministry of the Attorney General, for targeted direct assignment. (Hereinafter “targeted position”). It is not in dispute that the targeted position was also classified at level 6, that Mr. Jackson was the most senior of the complainants, and that there were no other bargaining unit employees with greater seniority who were eligible for targeted direct assignment to the targeted position.

6The competition for the targeted position closed in September 2016. Subsequently on October 13, 2016, Ms. Tina Liu, Program Advisor, Transition & Security Office, HR Program Management Branch HR Service Delivery Division, Ontario Shared Services, Ministry of Government and Consumer Services, wrote to Mr. Michael Fernandez, the hiring manager for the targeted position, stating, “The following employees who have been assessed as entry level qualified is (sic) being referred to your vacancy through the TDA process”. Ms. Liu attached relevant documentation for the four employees she was referring for targeted direct assignment, and requested that Mr. Fernandez provide information including the contact information for the Branch contact person for the start date, location of position, and name and contact information of the Reporting Manager, “…if you agree that the employees are entry-level qualified for the position”. The three complainants were among the four employees referred by Ms. Liu for targeted direct assignment.

7The documentary evidence indicates that Mr. Fernandez also received a package, including 6 selection criteria for the vacant position. He was required, inter alia, to provide no later than October 17, 2016, an assessment rationale for each employee assessed as not meeting the entry-level qualifications for the position. It suffices to record that Mr. Fernandez responded, finding that all four employees referred for targeted direct assignment did not meet the entry-level qualifications for the vacant mediator position.

8On October 24, 2016, Ms. Liu responded to Mr. Fernandez, stating “We have reviewed the assessment rationale and have some concerns with the content.” She reviewed in some detail the skills, knowledge and experience of each of the four employees as listed in the documentation, and stated, inter alia, “Based on the information provided above outlining why we believe the employees are entry level qualified, please re-evaluate the employees’ information package and reconsider your assessment.” Ms. Liu also wrote:

If you continue to assess the employees as Not Qualified, please note that in the event of a dispute regarding this assessment, you may be required to provide additional information outlining why the employee was deemed not qualified for the position. Please provide a signed and dated copy of the TDA Referral Outcome Sheet and revised assessment rationales.

9The following day, October 25, 2016, Mr. Fernandez informed that he had been advised “by the Chief Operations Officer, Michael Mamo, in conjunction with the decision of the Independent Policy Review Director, Gerry McNeilly, to notify you that we are cancelling the mediator competition. There have been some recent developments that they advise to keep the position open and available once it is confirmed what the agency’s operational needs are for this position”. Mr. Fernandez listed a number of external and internal activities, which would impact on the operational needs.

10Since June 2015, the targeted position had been filled by an individual, MC, who had been seconded to the position from her home position which was at the MCP level. Through renewals, she was still in the position at the time of the instant hearing. She was provided third party notice by the Association, but did not attend the hearing. The Board was advised that subsequently complainants Maietta and Vescio were matched to positions classified lower at level 5 and were working in those positions. However, complainant Jackson remained without a job as of the date of the hearing.

11On the merits of the group dispute, the parties have joined two issues.

(1) The Association alleges that the cancellation of the competition for the targeted mediator position was a bad faith exercise of management rights by the employer, which circumvented the collective agreement rights of the complainants to targeted direct assignment under article 27.8. The employer denies that allegation and asserts that the competition was cancelled at an early stage for operational reasons, and was a legitimate and bona fide exercise of management rights.

(2) The Association asserts that based on the skills, knowledge and experience of the complainants disclosed by the information in their submission, and the six selection criteria, they clearly met the entry level qualifications for the targeted mediator position. The Employer disagrees. It asserts that the mediation the complainants performed relating to disputes between individuals and insurers had to do with financial issues. It was very different from the mediation duties in the targeted position in the context of civilian police review. Moreover the targeted position also performed other duties such as preparation of reviews and audits, and duties relating to community outreach.

12The Association motion that the Board bifurcate the proceeding and initially hear and determine the dispute relating to the cancellation of the job competition. Association counsel pointed out that if the Board concludes that the cancellation of the competition was a legitimate exercise of the employer’s management rights, that would result in the dismissal of the group dispute. There would be no need for the Board to determine the second issue as to whether the complainants met the entry level qualifications for the position.

13Association counsel submitted that the primary considerations in determining the motion for bifurcation are fairness and efficiency. She argued that the criteria of efficiency favours bifurcation in this case. She submitted that on the issue of entry level qualifications, each of the three complainants would be testifying about his skills, knowledge and experience in relation to each of the six selection criteria. She estimated that each complainant would be testifying on those issues over one to two days. Including time for submissions, that issue would consume at least six hearing days. If the Board concludes that the employee’s decision to cancel the competition was not a violation, all of that would be a waste.

14The employer opposed bifurcation. Counsel submitted that if the motion is upheld, the Chief Operations Officer, Mr. Michael Mamo, would be required to testify twice, once on the issue of the competition cancellation, and again on the entry level qualification issue. That would be unfair to the witness. It would also be inefficient because there would be duplication of the same evidence, since there would be significant overlap in the evidence going to the two issues.

15Counsel argued also that bifurcation would result in delay. The Board would hear the evidence and submissions on the cancellation issue and reserve. It would then need time to issue its decision, before turning to the entry level qualifications issue. It would be much more expeditious to hear evidence and submissions on both issues at one hearing, and have one decision from the Board.

16Employer counsel submitted that Mr. Mamo’s testimony on the entry level qualification issue would not be lengthy. He also did not expect the testimony of the complainants on that issue to be as lengthy as Association counsel anticipates.

17Finally, employer counsel submits that any potential efficiency to be gained by bifurcation is speculative. Efficiency would result only if the Board holds in favour of the employer on the cancellation issue. If the Association’s position on that is upheld, inefficiency and delay would result.

18The employer relied on the following authorities: Re OPSEU and the Ministry of Government & Consumer Services, GSB File No: 2015-2664 (Dissanayake); Re Loyalist College of Applied Arts and Technology (2003) Source decision, 122 L.A.C. (4th) 155 (Knopf); Re Cargill Foods, (2009) 185 L.A.C. (4th) 167 (Marcotte); Re Toronto Star Newspapers Ltd. (2000) 60 C.L.A.S. 384 (Dissanayake).

19In Re OPSEU and the Ministry of Government and Consumer Services (supra) at paragraphs 27 and 28 the Board stated as follows:

27S. 48(1) of the Crown Employees Collective Bargaining Act provides that the Board “Shall determine its own practice and procedure, but shall give full opportunity to the parties to any proceeding to present their evidence and to make submissions”. In exercising this statutory power in relation to the issue of bifurcation, the Board is required to take into account practical considerations such as economy of time, resources and expenses. However, those considerations must be subject to the statutory obligation to give to the parties, the full opportunity to present their evidence and submissions. There has to be a balancing of considerations of savings and efficiency on the one hand, and fairness on the other hand.

28In Re East and L.C.B.O., (2005) 2005 OGSB minicounsel 85, 142 L.A.C. (4th) 442 (Dissanayake), the Board reviewed the case law, including the following statement by Vice-Chair Harris in Re Stewart (supra) at para.8:

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 procedural tool, provided there is no unfairness to any party in following such a procedure.

20The Board reviewed the jurisprudence and wrote at para.35:

35In applying the principles relating to bifurcation that emerge from the authorities, I first note that the instant case is distinguishable from most of the authorities cited, in one significant respect. In those cases, the consideration was whether the decision on a preliminary issue to be bifurcated would be dispositive of, or render irrelevant, the merits of the grievance. In the instant case, the employer’s proposed no prima facie case motion is not a “preliminary” issue in that sense. The union has challenged the employer’s decision in a number of ways. Some are based on a claimed right to PRB under the provisions of the collective agreement – the “contractual claims”, as counsel called it. The employer has conceded that one such claim, based on Appendix 11 to the collective agreement would survive its no prima facie case motion. In addition the union has challenged the employer’s decision based on the equitable doctrine of estoppel and the prohibition of discrimination in the collective agreement and the Human Rights Code. It is agreed that the estoppel and discrimination allegations would also survive a decision upholding the employer’s motion. The employer’s attempt is to hive off some of the claims of the union and hear them first.

21The Board found that in the particular circumstances of that case bifurcation would result in unfairness to the union and would be a denial of natural justice. It also found that the evidence is intertwined with all of the claims asserted by the union. Therefore, there would be duplication of evidence and no efficiency to be gained. The employer’s motion for bifurcation was denied.

22In Re Loyalist College of Applied Arts & Technology, (supra) the Board concluded in relation to bifurcation of an alleged breach of a last chance agreement and an allegation relating to improper use of the employer’s computer, “there would not be any “efficiencies” created, and any efficiencies would result only if the union loses on the first aspect of the case”. The Board concluded that “it would appear to be too great a risk to potentially delay the process on the chance that some efficiency may be created.” (See, para. 11).

23In Re Cargill Foods (supra), a motion to bifurcate a preliminary issue alleging that discipline was void ab initio due to failure to provide union representation at a disciplinary meeting, and the issue of just cause for the discipline was denied on the grounds that a number of witnesses would have to testify twice, and that it would be impractical and unnecessarily stressful on the witnesses.

24In Re Toronto Star Newspapers Ltd. (supra), the arbitrator dismissed the union’s motion for bifurcation of the issues of liability and remedy, concluding that “in this particular case the issues of liability and remedy are so inextricably bound together.” It was also stated, “One reason in favour of bifurcation is that if no liability is found, the evidence received on issues of remedy become moot. I am satisfied that such “wasted” evidence, if any, in this case would be very minimal. On the other hand, bifurcation will result in significant delay in the event liability is found.” (para. 16)

25The case law clearly indicates that whether or not it is appropriate to bifurcate is a decision to be made having regard to the particular circumstances of a given case. This is not a case where the two issues by themselves are intertwined. One issue is about the reason(s) for cancellation of a job competition that had been posted. The second issue is about whether or not three individuals met the entry level qualifications for that position. Employer counsel asserted that Mr. Mamo would be testifying about the creation of the Office of the Independent Police Review Director, its purpose and legislative mandate, and the duties and responsibilities of mediators in that office. He stated that such evidence would be relevant for both issues. On that basis he argued that if the issues are bifurcated, there would be repetition of the same evidence. Mr. Mamo would be required to adduce the same evidence twice. This would not only be wasteful, it would be unfair to the witness. This potential for unfairness and inefficiency would be avoided if all issues in the dispute are heard and determined at once.

26The Board is of the view that the inefficiencies anticipated by counsel do not have to necessarily result from bifurcation in this case. Evidence tendered in the first issue may be relied on by the parties and the Board, in relation to the second issue. Under the Crown Employees Collective Bargaining Act the Board has authority to determine that process to be appropriate in this case. Then the witness would be required to testify in the second phase, only on issues relevant to the second issue not adduced in the first phase. I am satisfied that with that process in place any overlap in the evidence by Mr. Mamo between the two issues in this case would be minimal. The documentary evidence seems to indicate that the decision maker in relation to entry level qualifications was Mr. Fernandez, the hiring manager, and not Mr. Mamo. Employer counsel did not suggest otherwise. Therefore, it is unlikely that Mr. Mamo would have substantial testimony to offer about that decision itself.

27Arbitrators have considered the imposition of unnecessary stress on a witness by requiring him/her to testify twice at the hearing as a factor favouring refusal of bifurcation. See, Re Cargill Foods (supra). However, it is established in the case law that there has to be a balancing of considerations of savings and efficiency on the one hand, and fairness on the other. This is not a case about theft of employer property, as Re Cargill Foods was. In cases such as theft, physical or sexual assault, discrimination on prohibited grounds, harassment etc., witnesses would be particularly subjected to stress, especially when under cross-examination. This is not such a case. The evidence is about management decisions on filling a vacant position and about employees’ qualifications vis-à-vis duties of a position. It is more appropriate to describe it as one of inconvenience to the witness, rather than a matter of unfairness.

28If the proceeding is bifurcated, and the employer is successful on the first issue, that would end this proceeding. However, that by itself is not a reason to not bifurcate. An assessment must be made on what is more efficient overall in this particular case. I agree with Association counsel’s reasoning that the dispute about entry level qualifications would entail substantial testimony from each of the three complainants. There would also be some detailed comparison of the employees’ knowledge, skill and experience with the duties of the targeted position, and about whether the employees’ skills are transferable. That would require multiple days of hearing. All of that would be wasteful, if the dispute is dismissed following the determination of the first issue.

29I am satisfied that the testimony relating to the issue of cancellation of the job posting will not be very time consuming. Much of that evidence could be applied to the second issue, to the extent it is relevant. On balance, I conclude that this is an appropriate case for bifurcation.

30On the next scheduled hearing dates, the Board will be receiving evidence and submissions on the first issue. Whether or not it would be required to proceed to hear the second issue would depend on the outcome of the first issue. If it does, the evidence tendered on the first issue shall be applicable to the second issue. The Board remains seized, and this proceeding will continue on the scheduled dates.