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 30, 2019

DECISION

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

2A previous decision was issued on October 1, 2019.

3That decision anticipated submissions being made at a hearing on October 30, 2019. The submissions were to be on the prima facie conclusions reached in the October 1 decision regarding the screening process that excluded the three Grievors.

4The successful applicant in the job competition, now the incumbent, was given notice of the proceeding to be held on October 30, 2019. She made contact with counsel for the parties to indicate her intention to participate, and to appoint her own counsel. She advised that her counsel was not available for the matter on October 30 and she sought an adjournment of that hearing date. Consequently, the parties agreed that October 30 would be used as a further day of mediation to try to resolve the grievances without a hearing.

5The attempt at mediation to resolve the grievances on that basis proved unsuccessful.

6The matter is therefore going to proceed. The following orders and directions are made for the further conduct of the case, which is to continue under the expedited process described in Article 22.16 of the parties’ collective agreement.

7Ms. Cox (the Incumbent) is joined as an interested third party. The Incumbent’s counsel is required to contact the Registrar and the Union’s and the Employer’s counsel so that they are apprised of the Incumbent’s counsel’s contact information.

8All three grievances are consolidated and will be heard together.

9The issue in the case is whether the Grievors were improperly screened out from being interviewed for the job that was posted. The screening process is the context at issue. Accordingly, the applications for the job posting (including the résumés of the applicants) that were provided to the agency that conducted the screening for the Employer are arguably relevant. In particular, the applications (and résumés) of those who were screened in, and those of the Grievors (who were screened out and grieved), are relevant. These documents – with suitable redactions of personal information of the applicants – are to be produced by the Employer to the Union (to be shared with the Grievors only for the purposes of this hearing) and to the Incumbent (only for the purposes of this hearing). Such production is to occur within 90 days of the date of this decision.

10After production of the above relevant documents, the Registrar is to consult counsel for the parties (including for the Incumbent, from now on included as one of the parties) to determine the hearing date.

11It is not anticipated that any oral evidence will be required at the hearing. This is because, given the expedited nature of a hearing under Article 22.16, the hearing is intended to focus on the prima facie conclusions reached in the October 1, 2019 decision. However, if any party intends to call oral evidence on any matter, it will give notice and written particulars of the proposed evidence to the other parties, within 60 days of receipt of the bundle of documents from the Employer. Failing such notice, the expectation will be that no oral evidence will be presented. If a party gives notice of its intention to call oral evidence, and another party objects to such evidence being presented, the objecting party should provide written details of their objection. A conference call to address the issue will be arranged.

12If any party wishes to raise any other matter, not anticipated in this decision, including any limits or parameters to be placed on the Incumbent`s ability to participate in the hearing, it must be done within 60 days of receipt of the bundle of documents from the Employer, failing which no other matters will be dealt with.

13The Employer has given notice of its intention to seek the dismissal of the Grievor, Varsha Pasel’s, grievance because she has resigned her employment with the Ontario Public Service. The Union’s position is that Ms. Pasel would not have resigned had she been successful in the contested job posting, and she would resume her employment if she were successful, in the event of the competition being re-run.

14The hearing is anticipated to proceed as follows.

a) The Employer’s motion will be part of the Employer’s submissions, at the start of the hearing.

b) Thereafter the Incumbent will make her submissions.

c) Thereafter the Union will make its submissions, including its response to the motion to have Ms. Pasel’s grievance dismissed.

15The expectation for the hearing is that it will be used to make submissions on potential dismissal of Ms. Pasel’s grievance and on the prima facie conclusions reached in the October 1, 2019 decision.

16In the event that the prima facie views expressed in the October 1, 2019 decision are upheld, and a re-run of the job competition is ordered, the Parties will be given an opportunity after the hearing (either at a further hearing or in writing) to make submissions on the appropriate terms of the re-run. I would also remain seized of any additional remedy in the event of one of the Grievors was the successful candidate in the re-run competition.