GSB# 2017-3688

UNION# 2018-0379-0001

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Macumber)

Union

• and –

The Crown in Right of Ontario (Liquor Control Board of Ontario)

Employer

BEFORE

Kevin Banks

Arbitrator

FOR THE UNION

Erin Thorson Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Adrienne Couto Liquor Control Board of Ontario Counsel

HEARING

September 11, 2020 (by Videoconference)

Decision

1The grievance alleges that a job competition in which Ms. Macumber participated was flawed and unfair.

2On September 4, 2020 I met with the parties via video platform for a case management conference, and directed in an order issued that day that the Union provide particulars of the grievance to the Employer no later than 11 am on September 9, 2020.

3On September 8, 2020 the Employer provided the Union with disclosure of documents relating to the competition in question.

4The Union provided particulars on behalf of Ms. Macumber on September 9, 2020. In their relevant paragraphs, they read as follows:

Background

1. Dawn Macumber, the Grievor, first hired on July 2, 1999 as a Casual Service Representative (CSR), then hired into a Permanent Full-time Position (PFT) December 2018. The Griever has worked in several different retail locations in the Eastern Region and several Acting Manager roles.

2. The Griever held the role of Unit Steward from March 2006 - March 2008 and again in March 2011 to Feb 2017.

3. The Griever has continued to receive "Superb Performance" evaluations, a

"3" rating year over year and is currently in [a] temporary Acting Store

Manager Assignment in Store #208 - Bancroft one of several received over

the past few years.

Circumstances Giving Rise to Grievance

4. On November 15th, 2017, the Grievor applied for D-Store Manager,

Wilberforce competition ER076-2017. The posting opened on November 6

and closed on November 20, 2017.

5. In early January 2018, the Grievor, and others, were interviewed; the

Grievor did not score well and was not successful in obtaining the position.

6. The position was awarded to the highest scoring candidate, Kelli Nicholas

(Casual Seniority Date: March 15, 2005 - candidate with the second lowest

seniority).

7. When the Grievor became aware they were not the successful candidate,

they filed the above noted grievance.

Flawed and Unfair Job Competition

1. On a number of questions the Grievor merited higher scores in consideration of the questions asked, the marking guidelines sheet, and in comparison with the scores given to other candidates, in particular the Incumbent, Kelli Nicholas.

2. With the many years of seniority and acting assignments, favourable

performance reviews, these were not taken into proper consideration.

5The Employer brings a motion for further and better particulars. The Employer seeks the following information in relation to each item of the particulars:

With respect to the items under the title “Background”:

Paragraph 1: in which retail locations in Eastern Ontario the grievor worked and when, and which Acting Manager roles she served in, and when;

Paragraph 3: a listing of which evaluations the grievor is referring to and in which years they took place, and the dates and locations of the temporary Acting Store Manager assignments in question.

With respect to the items under the title “Circumstances Giving Rise to the Grievance”:

Particulars of the grievor’s and the incumbent’s job qualifications.

With respect to the items under the title “Flawed and Unfair Job Competition”:

Paragraph 1: on which questions the grievor merited a higher score and why; and what in the grievor’s view was flawed and unfair about the interview questions, the scoresheet, and the scoring of the incumbent Ms. Nicholas, including a description of the quantitative impact of the alleged flaws or unfairness of scores;

Paragraph 2: which acting assignments and favourable performance reviews were in the grievor’s view not taken into proper consideration, and in what ways were these not properly considered.

The Employer also seeks: particulars of which articles of the Collective Agreement Ms. Macumber believes were breached by the actions listed under the heading “Flawed and Unfair Competition” in her September 9, 2020 statement of particulars; production of any documents upon which the Union seeks to rely to the extent that the Employer has not already produced them to the Union; and particulars of the remedy that the Union seeks on behalf of the grievor.

5The Employer directs my attention to Article 28.2(c)(ii) of the Collective Agreement, which provides that:

If requested, the Union shall provide the Employer with particulars relating to a grievance filed by the Union on behalf of a member or the Union itself during the grievance procedure.

Ms. Couto submits that the Employer is entitled to receive particulars of the facts which support the alleged breach of the collective agreement, and specifically what was done, when, where, and by whom: Re Ontario Public Service Employees Union v. Ontario (Ministry of Community Safety and Correctional Services) (Frost Grievance), [2014] O.G.S.B.A. No. 151 (Harris), at para 3. She notes that disclosure of particulars is of critical importance to grievance and arbitration procedures: Re Ontario Public Service Employees Union (Gates et al.) and the Crown in Right of Ontario (Ministry of Health and Long-Term Care) 2007 CarswellOnt 10726, 88 C.L.A.S. 157 (Dissanayake), paras 5 and 6. She maintains that arbitrators have recognized that an employer does not have to comb through its records to determine whether there is any factual basis for the grievor’s complaints, does not have to guess at what the basis for the complaint is, and does not have to wait for evidence to be tendered at a hearing to be provided with the basis for a claim: Re Ontario (Ministry of Community Safety and Correctional Services) and OPSEU (Singh) 2005 CarswellOnt 11501, [2005] O.G.S.B.A. No. 82, 81 C.L.A.S. 373 (Abramsky), paras 17, 18, 22, and 30. She submits that in a job competition grievance the Employer is entitled to particulars quantifying the impact of alleged actions or omissions in the competition process: Re Ontario Public Service Employees Union v. Ontario (Ministry of Community and Social Services) (Askarzada Grievance), [2017] O.G.S.B.A. No. 141 (Harris) at para 10. Ms. Couto submits that Employer has provided the Union with all documents arguably relevant to the hearing of this matter, including all documents associated with the scoring of the job competition. The Employer therefore seeks an order that the Union provide the particulars and documents described above, failing which the Employer may request dismissal of the grievance.

6The Employer also objects to the Union’s request for disclosure of the grievor’s entire personnel file. The Employer notes that the grievor was hired in 1999, and that her file contains much information that is extraneous to the grievance. The Employers asks that the grievor be required to specify which documents or time period within her personnel files she believes to be arguably relevant to her grievance.

7The Union responds that it did not receive disclosure from the Employer until September 8, 2020 and that it therefore had not had the opportunity to review the disclosed documents in detail. In the circumstances, the Union submits, it had provided enough information. In the alternative, if the Board were to find that disclosure was insufficient, the Union says that it will be in a position to provide further particulars. Ms. Thorson notes that in Frost the Board gave the Union the opportunity to provide further particulars without dismissing the grievance, and that in this case it would not be appropriate to do so since the Union and the grievor had needed more time to consider the information disclosed to it on September 8, 2020.

8I agree with the Employer that it is entitled to receive particulars of the facts which support the alleged breach of the collective agreement, and specifically what was done or not done, when, where, by what means and by whom and, to the extent motivation may be a relevant fact, with what motivation: Frost, supra, at para 3. I also agree that the Employer does not have to comb through its records to determine whether there is any factual basis for the grievor’s complaints, does not have to guess at what the basis for the complaint is, and does not have to wait for evidence to be tendered at a hearing to be provided with the basis for a claim: Singh, supra, at paras 17, 18, 22, and 30.

9The disclosure that the grievor and the Union have provided to date is clearly not sufficient. I also note that the Employer is not asking that the grievance be dismissed, and agree with the Union that, for the reasons presented by Ms. Thorson, it would not be appropriate to do so at this time.

10I hereby order that the grievor, through the Union, provide to the Employer, not less than 20 working days before the next scheduled hearing date, the particulars listed in paragraph 5 of this decision, failing which the Employer may bring a motion for dismissal of the grievance.

11I also uphold the Employer’s objection to the Union’s request for disclosure of the grievor’s entire personnel file, and direct that the Union specify which documents or time period within the grievor’s personnel file it believes to be arguably relevant to her grievance.