GSB#; 2017-3338; 2017-3339

UNION# 2017-0232-0021; 2017-0232-0022

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Turner et al)

Union

• and -

The Crown in Right of Ontario (Ministry of the Attorney General)

Employer

BEFORE

Christopher J. Albertyn

Arbitrator

FOR THE UNION

Alex Lane Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Thomas Ayers Treasury Board Secretariat Legal Services Branch Counsel

HEARING

October 1, 2019

DECISION

1This matter concerns a job competition, for the position of Trial Coordinator for the Superior Court in Kitchener, posted on September 13, 2017.

2Forty-seven individuals applied for the position. Of them, seven were screened in to have an interview. One of those interviewed, Melissa Cox, was the successful candidate. She is the incumbent.

3Five individuals grieved their being screened out of an interview. Of them, two have resolved their grievances with the Employer under confidential Minutes of Settlement (Sandra Serpa – 2017-0232-0019 and Sandra MacEachern – 2017-0232-0020).

4Three grievances remain. They are the grievances of Esther Turner (2017-0232-0021), Varsha Pasel (2017-0232-0022) and Stephanie Schiedel (2017-0119-0023).

5Shiedel’s grievance is not currently part of this case. Although she has indicated her continuing interest in pursuing her grievance, the status of her grievance is not clear. The Union requests to include it with this case. In my view, that request appears to make sense. If her grievance is not included, it will require separate adjudication, when the facts and circumstances are the same as that in this case. That will mean an unnecessary duplication of the litigation, which would be a waste of resources for the Union, the Employer and the GSB.

6Despite my prima facie view of including Shiedel’s grievance within this matter, I will give the Employer an opportunity at the next scheduled hearing to make submissions on the status of her grievance.

7Subject to the issue of Shiedel’s grievance being included in this matter being determined, for convenience now I will refer to her and the other two grievors as the Grievors.

8With the Union’s agreement, the Employer has provided a comprehensive bundle of documents relevant to the determination of whether the Grievors ought to have been interviewed with the seven individuals who were interviewed.

9Counsel for the parties assisted in explaining the documentation, without making submissions.

10The parties have asked me to review the documentation and to provide a prima facie conclusion from that review, as to whether the Grievors were properly, or improperly, excluded from being interviewed.

11I have carefully reviewed this documentation. It shows that an initial screening was done by a service used by the Employer to determine which candidates should be screened in for an interview and which should be screened out.

12In the screening process no regard whatever was given to the fact that each of the Grievors was an incumbent in the position of Trial Coordinator – the position for which they were applying in Kitchener – at the time they made their application. In Turner’s case she had held this position for over 25 years (albeit in the Ontario Court of Justice rather than in the Superior Court, and she had successfully been appointed to the position in the Superior Court at another location not long before); Pasel had acted in the position in the Superior Court for nearly 2 years; and Schiedel had been in the position in the Ontario Court of Justice for over 5 years (on an acting and then permanent basis). In my prima facie view, the failure to have given any credit to the fact that these individuals actually perform the work of the posted position on a daily basis for an extended period of time appears to be problematic. However, I do not rely upon this concern in my review of the documentation.

13In reviewing the documentation, I have compared the scores given in the screening to the Grievors as compared to the scores given to the 7 individuals who were screened in for interviews.

14The criteria applied were the qualifications for the position described in the posting. The list of qualifications was divided into four criteria, for which the scoring applied:

i. Organizational and planning skills to schedule court sittings and coordinate judicial resources and facilities for optimal usage; ability to work under pressure, prioritize multiple tasks and meet deadlines while dealing with constant shifts in focus and with changing and competing priorities; judgment and problem-solving skills to identify and resolve scheduling issues; analytical skills to compile and assess data (35% of the score);

ii. Knowledge of the functions and rules of the Ontario Superior Court of Justice, relevant legislation (e.g. Courts of Justice Act, Criminal Code (Canada), Criminal Rules [of the Ontario Court of Justice], Family Law Act, Rules of Civil Procedure) and legal terminology (25% of the score);

iii. Oral and written communication and interpersonal skills to work cooperatively and to effectively liaise and negotiate, using tact and diplomacy, with judges, staff, counsel and the public (25% of the score);

iv. Proficiency with computer applications (word processing, presentations, spreadsheets, databases, e-mail, internet and management information systems) to produce reports and spreadsheets (15% of the score).

15Scoring under each criterion was from 0 to 3 (3 = meets all of the requirements; 2 = meets most; 1 = meets some; 0 = does not meet the requirements).

16Each of the seven candidates screened in for an interview scored 2 points only for Criterion 1. So did the Grievors. As a result, I have not reviewed the assessments for Criterion 1 in any detail, save to satisfy myself that the Grievors were at least entitled to be scored at 2, as they were.

17The Grievors lost points as compared to those screened in on Criteria 2 and 3. They scored 3 for Criterion 4, as did 6 of the 7 who were screened in. I did not review and compare the scoring for Criterion 4.

18So, the essential differences between the Grievors and the seven successfully screened in were Criteria 2 and 3.

19Each of the Grievors scored 2 for Criteria 2 and 3. Two of the seven scored 2 not 3 for Criterion 2, the others scoring 3 each. One of the seven scored 2 for Criterion 3, the others scoring 3 each.

20I have also considered the report from the screening vendor for Turner and Pasel and the debrief from the Employer to them (which is similar to the vendor’s report) as to why the Grievors were given the scores they received.

21I compared the 2s for the Grievors for Criterion 2 against the 3s scored for five of the seven who were screened in. On my review, I am not persuaded, prima facie, that there is any material distinction in the applications of the three Grievors as compared to some of the 5 who were successful in scoring 3. For this reason, my prima facie opinion is that the Grievors ought also to have been scored a 3 for Criterion 2.

22The same conclusion on the same process applies to Criterion 3, for the comparison between what the Grievors had in their job applications as compared to some of the 6 who were successful in scoring 3.

23So, prima facie, I conclude that the Grievors were improperly excluded from being interviewed.

24Assuming I am correct, this conclusion means that the competition process was defective in that the Grievors should, it appears, have been included in the interview process. The interviews should therefore be re-done, as between the Grievors and the incumbent, on appropriate terms.

25The views expressed herein are prima facie, in that the parties have not had an opportunity to makes submissions on the review that I have done. Nor has the incumbent. She is an interested party and should receive third party notice of the proceedings. The parties are directed to provide such notice to her.

26The matter will proceed on October 30, 2019. On that date the parties and the incumbent (if she so chooses) can make submissions on the above conclusions, including all issues regarding Schiedel’s grievance.

27The Employer has advised that it reserves the right to bring a motion to dismiss one or more of the grievances if the Grievor concerned fails to attend the next hearing date.

28The Grievors are each directed to attend the hearing on October 30, 2019 to confirm their intention to pursue their grievance. The Union is to advise each Grievor of this direction.