Numéro de sentence arbitrale 15-013

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Award Date:	2015-11-02
Arbitre:	Misra, Gail Voir les prix par Misra, Gail
Municipalité:	Peel Voir les prix а partir de Peel
Région:	Central Voir les prix а partir de Central
Classifications:	Procedural Issues, Job Posting
Plaignant:	Cst. Caicas
Comparutions:	G. Hopkinson and others, for the Association, pour l'Association G.P. Christie and others, for the Employer, pour l'employeur
Longueur:	12 pp
Référence conventions collective	Article 4.01
Référence législative	----

Sommaire

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Procedural Issues   Production of documents - Uniform members - Two job postings for multiple positions in bicycle patrol - Grievances claimed selection processes were unfair to grievor and that grievor not properly assessed - Association sought disclosure of all applications and related material for each applicant in both processes - With exception of debrief notes, all documents sought were arguably relevant - Production ordered subject to confidentiality undertakings - Interim award.

Job Posting   Selection procedure - Uniform members - Two job postings for multiple positions in bicycle patrol - Grievor unsuccessful in both postings - Grievances claimed grievor was treated unfairly and was not properly assessed - Association sought disclosure of all applications and related material for each applicant in both processes - In the context of a job posting, grading of other applicants was arguably relevant - With exception of debrief notes, all documents sought were arguably relevant - Interim award.

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Réalités

The association filed two grievances on behalf of Cst. Caicas concerning two job postings, one from 2013 and the other from 2014, for vacancies in a bicycle patrol officer position. The grievor was interviewed for the first posting but not the second. He was unsuccessful in both postings. This interim award addressed the association’s request for pre-hearing production of documents. The board had already provided the association with some documents, including the scoring matrix used in the postings and documents relating to the successful candidate who was most proximate to the grievor in the 2013 process as well as documents relating to two applicants who scored most proximately ahead of the grievor in the 2014 process. In the case of the 2014 process the board anonymized the identities of those two candidates. The grievances claimed that the grievor was treated unfairly in both processes and was not properly assessed, and that he was improperly denied an interview in the 2014 process. The association claimed that the board breached Article 4.01 of the collective agreement, the management rights clause, particularly the board’s undertaking therein to exercise its management functions fairly. The association sought production of all applications and related material for each applicant in each of the two job posting processes, including: • Applications for transfer • Personal development forms [PDFs] • Scoring materials • Scoring summaries • Notebook evaluation notes • Performance indicators and other statistics • Divisional averages • Debrief notes With regard to the 2013 process the association also sought disclosure of the questions asked during the interview and scoring attributed to each response.

Argument

The association argued that it had evidence of arbitrariness, unfairness, and inconsistent application of assessment factors, scoring principles and practices. The association argued that it would be a denial of natural justice for it to be deprived of production of information that the board relied upon for all candidates. The board contended that it had provided sufficient documentation and that the association was fishing for more information to support its grievances. The board argued that the only relevant comparison was between the grievor and the successful candidate most proximate to him in each process.

# de sentence arbirale

The association argued that it had evidence of arbitrariness, unfairness, and inconsistent application of assessment factors, scoring principles and practices. The association argued that it would be a denial of natural justice for it to be deprived of production of information that the board relied upon for all candidates. The board contended that it had provided sufficient documentation and that the association was fishing for more information to support its grievances. The board argued that the only relevant comparison was between the grievor and the successful candidate most proximate to him in each process. AWARD The standard for pre-hearing disclosure was arguable relevance, and the decision in West Park Hospital and ONA (infra) articulated the factors typically considered by arbitrators where disclosure was contested. The association was claiming that the selection processes were unfair to the grievor and the board did not properly assess his applications. The association sought production of documents of all applications in each process in the form of scoring materials, debrief notes, and interview questions in the case of the 2013 process. Applying the first West Park factor, with the exception of debrief notes the documents sought were arguably relevant to the issues in dispute. There were multiple positions available in each posting. The board’s approach to arguable relevance was too narrow. In preparing its case, the association was entitled to review how candidates were marked in relation to the grievor and whether all candidates were asked the same questions. The second West Park factor was also met, since the association had sufficiently particularized its request. As for the third West Park factor, the association was not on a fishing expedition: It was difficult to see how the grading of other applicants could not be arguably relevant. With respect to the fourth West Park factor, with the exception of debrief notes there was a clear nexus between the documents sought and the dispute between the parties. The board made no submissions regarding the final West Park factor, viz. whether disclosure would cause undue prejudice. Accordingly this was a neutral factor. The one possible issue involving prejudice was anonymizing the names of successful candidates. However, there was no basis for shielding the names of applicants from the association. In a prior grievance between these parties, which involved a promotion, Arbitrator Kirkwood granted the association’s request for production of all applicant promotional packages, not just those for successful candidates. The fact that the instant grievances involved a job vacancy rather than a promotion did not amount to a material distinction, as the considerations were the same in the context of a job vacancy. Moreover, it was not unusual in a job vacancy grievance to order the production of documents for all applicants since these were usually regarded as arguably relevant and as having a nexus to the issue in dispute. Accordingly the association’s request for production of documents was substantially upheld, subject to confidentiality undertakings.

Autorités cité

• West Park Hospital and ONA (1993), 37 L.A.C. (4th) 160 (Knopf) • Laurentian University (Board of Governors) and Laurentian University Faculty Assn. (Galiano-Riveros), [2011] O.L.A.A. No. 660 (Surdykowski) • Kaiser Aluminum & Chemical of Canada Ltd. and USWA, Local 4885, 2004 CanLII 66487 (Surdykowski) • Peel Police Services Board and Peel Police Assn. (Niles), unreported, Feb. 18, 2011 (Kirkwood) [OPAC #11-004]

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