GSB# 2024-00699

UNION# 2024-0703-0002

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)

Union

• and -

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

Employer

BEFORE

Dale Hewat

Arbitrator

FOR THE UNION

Arielle Lewis Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Joohyung Lee Treasury Board Secretariat Legal Services Branch Counsel

HEARING

January 21, 2025

Decision

1This case involves an allegation by the Union that the Employer violated Articles 2 and 6 of the Collective Agreement by arbitrarily denying the Grievor an opportunity to participate in the next phase of a job competition after he was invited and scheduled to interview and complete a written assessment. The Employer brought a motion asking for the case to be dismissed arguing that the Union has failed to establish a prima facie case that the Employer violated the Collective Agreement.

2In order to meet the threshold of showing no prima facie case, the Employer must establish that the Union’s allegations, if assumed to be true, would not show a violation of the Collective Agreement. I have decided to dismiss the Employer’s motion on the basis that it has not established that there is a no prima facie case on the Union’s facts. Below is a summary of the Parties submissions and my reasons for the decision.

3The Union’s particulars set out the following facts. The Grievor is a Probation and Parole Officer working out of the Sioux lookout Probation and Parole Office. He applied, within the allotted time frame, for a job competition for a permanent Parole Officer position at the Kirkland Lake Office. On April 25, 2024 Joann Grant, HR Business Support Coordinator, emailed the Grievor stating that he had been selected to participate in an interview for the position.

4Ms. Grant’s email stated, highlighted in yellow, that the verbal interview was scheduled for Wednesday May 8, 2024 at 10:45 a.m. with interview questions being sent 30 minutes in advance and that the written assessment was scheduled for May 8, 2024 at 12:00 p.m. The email outlined further instructions including that the meetings would take place virtually over Microsoft Teams along with user instructions. Lastly, the email stated and was highlighted in grey “Please reply to this email to confirm or decline the interview by Tuesday April 30, 2024 at 12:00 p.m.”

5On May 6, the Grievor replied to the email asking if it would be possible to push back the time of the written assessment to 2 p.m. as he had an appointment that he could not reschedule. Ms. Grant replied to the email by stating that she had not received correspondence from the Grievor indicating that he accepted the interview invitation. When the Grievor asked if he could still proceed with the interview, Ms. Grant told him that the time slot had been filled but noted that she could reach out to the hiring manager. Ms. Grant also told the Grievor that “a lack of interview confirmation indicates a decline.”

6In his Grievance, he explained that when the April 25, 2024 interview invite was received in his inbox, he was out of office with no access to his work emails until his return on April 29, 2024. He claimed that when he returned to work, he saw the April 30, 2024 deadline to respond but was not able to complete the process due to other priority issues in the office.

7Ms. Grant forwarded her correspondence with the Grievor to the hiring manager, Erika Novak advising that the interview space had already been filled which would require them to reschedule the interviews. When Ms. Grant stated that it was up to Ms. Novak to decide what to do, Ms. Novak responded that “I’m leaning towards no - no response would generally signal a decline. We moved things around, and I am reluctant to mess with already full schedules”. After the discussion with Ms. Novak, Ms. Grant replied to the Grievor that same day confirming that he would not be included in the competition.

8The Employer took the position that the April 25, 2024 email made it very clear, especially being bolded in yellow that both parts of the interview would occur on May 8, 2024 and being bolded in grey that April 30, 2024 was the deadline for accepting or declining the interview. From the Employer’s perspective, they never received an email either confirming or declining the interview invitation from the Grievor by April 30, 2024 and only heard from him on May 6, 2024 when he wrote asking for the written assessment portion of the interview to be moved. While the Grievor may have been away and missed receiving the April 25, 2024 email and missed responding once he read the email upon his return to work, the Employer argued that Management did not deny the Grievor an interview. From the Employer’s perspective, by not hearing from the Grievor by April 30, 2024 it assumed he declined the interview invitation. While consideration was given to the Grievor’s request to be granted the interview, the Employer determined that due to scheduling concerns and the need for equal application of integrity to all job candidates that it would not make an exception for the Grievor all of which was not arbitrary.

9The Employer submitted that the facts pled by the Union do not show that the Employer took into account irrelevant factors, had a flaw in the hiring process and did not act in an arbitrary manner. In addition, the Employer emphasized that the fact that the Grievor disagreed with the Employer’s decision is not sufficient to establish a prima facie case.

10The Union asserted that in determining the scope of a no prima facie case, I can only look at the facts asserted by the Union and ask whether those facts are capable of showing a violation of the Collective Agreement. In that regard the Union noted that arguments or conclusions do not constitute allegation of facts. Applying the facts presented, the Union claimed that a job was posted for which the Grievor applied and that he was granted an interview but was denied that opportunity to interview for the position. According to the Union, there was some degree of discretion that could have been exercised by Management to reschedule the interview but they declined to do so which has the possibility of establishing a case that Management acted arbitrarily or unreasonably in not allowing the Grievor to be interviewed.

11The Parties agree on the test that has been established for determining whether allegations meet the threshold of a prima facie case. As noted in OPSEU (Martin et al v. Ontario (Ministry of Community and Social Services) 2015 CanLII 6044 (ON GSB) at paragraph 6, Arbitrator Anderson stated: “The question is whether the asserted facts, taken as a whole, constitute particulars capable of supporting the violation of the collective agreement alleged. As the Union argues, the words “capable of supporting the violation” are of some significance. What matters for the purposes of the no prima facie case motion is whether the party responding to the motion, in this case the Union, has articulated a legal theory which, on the facts it has particularized, could reasonably support a conclusion that there is a violation of the collective agreement. Therefore, the particulars are to be assessed against the responding party’s theory of the case. Whether that theory is correct need not be determined at this stage in the proceedings. Provided the responding party’s theory is reasonable and it has provided particulars which, if true, would result in a finding of a breach on the application of that theory, the motion should be dismissed.”

12Arbitrator Anderson applied the same principles and test in OPSEU (Solomon Smith et al) v Ministry of Children, Community and Social Services 2019 CanLII 126475 (ON GSB). That case involved allegations of discrimination and harassment on religious grounds. The Arbitrator concluded that the Grievance did not meet the test of a prima facie case because it was determined that the circumstances of the Grievor feeling trivialized, embarrassed and disrespected did not provide a plausible objective basis on which comments could be viewed as discriminatory or harassment.

13The Employer argued that the Union has not met the test of establishing that the Employer’s decision in this case was arbitrary or unreasonable. Citing a decision of the Ontario Labour Relations Board in Giacomin v. Queen’s University Faculty Association (QUFA) 2024 CanLII 24928, dealing with an application that the Union had failed in its duty of fair representation, the Board examined the question of what is considered arbitrary for the purposes of deciding whether a case does not disclose prima facie case. At paragraph 12 of the decision the Board stated: “The Board has defined the terms "arbitrary", "discriminatory" and "bad faith" on any number of occasions. The Board's decision in Chrysler Canada Ltd., [1999] OLRB Rep. July/August 757 is often cited for the following definitions: (a) "arbitrary" means conduct which is capricious, implausible, or unreasonable in the circumstances. This is often demonstrated by a failure by the union to properly direct its mind to a situation, or to conduct a proper and meaningful investigation when one appears to be called for.” Applying this definition the Employer submitted that Management directed its mind to the Grievor’s situation by considering whether to allow him to interview despite his failure to provide his confirmation that he was accepting the interview invitation. In addition, the Employer asserted that there was nothing on the Union’s facts to show an absence of a rational connection or reliance on irrelevant factors which might result in a conclusion that a decision was made arbitrarily as noted at para 140 in US Steel – Hamilton Works v. USWA 2012 CarswellOnt 11391.

14Having reviewed the Parties’ submissions and the case law provided, I have concluded that the Union’s pleadings do establish a prima facie case of a possible violation of the Collective Agreement. While the Employer tried to explain how Management’s actions were not arbitrary or unreasonable, I do not need to make that assessment at this stage of the proceedings. My only question as established in the Solomon and Martin decisions, supra, is whether the Union’s pleadings and particulars provide a legal theory that there has been a possible violation of the Collective Agreement, whether or not that theory is correct or meets the Union’s onus of proof on the merits.

15In this case, the Union’s particulars are sufficiently detailed and show that the Grievor was offered an interview and that Management had some discretion to decide whether to allow the Grievor an interview despite him not confirming or declining the interview by April 30, 2024. The particulars show that the Grievor was away at the time when the interview email invitation was delivered and that he was busy on his return to work such that he did not provide a response. When he wrote to Ms. Grant on May 6, 2024 asking for the written assessment portion of the interview to be rescheduled, he clearly assumed the interview was going forward. While he was told by his Manager that she thought he had declined the interview, she did tell him that she could see what she could do but that the decision would ultimately be in the hands of the hiring manager. What the Grievor understood was that, despite his explanation for not providing a response by April 30, 2024, Management conveyed to him that his failure to respond meant that he declined the interview offer, and therefore, he would not be included in the job competition.

16From my viewpoint, given the application of Management’s discretion in the case, it is plausible that its decision to not interview the Grievor in these circumstances was unreasonable or arbitrary. The Grievor did provide an explanation of why he did not respond to the original email by April 30, 2024 and he clearly assumed that the interview was taking place when he contacted Management on May 6, 2024 asking for rescheduling of the written assessment interview portion. The answer told to him that he had declined the interview needs to be weighed against Management’s rationale to determine whether the decision to not include the Grievor in the job competition was a reasonable one.

17Accordingly, the Employer’s motion is dismissed. The Board will contact the Parties to schedule a hearing.