Job Competitions: Union Observers, Non-Union Applicants and Privacy

May 17, 2012 | Heather MacMillan-Brown

Saskatchewan Institute of Applied Science and Technology v. Saskatchewan Government and General Employees’ Union, 2012 SKQB 102.

This case involved the interpretation of a provision of a collective bargaining agreement (the “CBA”) between the Saskatchewan Institute of Applied Science and Technology (“SIAST”) and the Saskatchewan Government and General Employees’ Union (the “Union”).

The provision in question entitles the Union to have an observer present at job competition assessments or interviews even after all union members are eliminated as contenders for the position.

SIAST refused to permit union observers to be present at assessments and interviews for two particular job postings on the basis that union observers are only entitled to be present where internal employees are involved.  Because there were no qualified union employees remaining in the candidate pool for these two positions, SIAST took the position that the union observers were no longer entitled to be part of the hiring process.  SIAST further argued that to allow union observers to be present during the interviews of external candidates, after all internal candidates had been eliminated, is prohibited by Saskatchewan privacy legislation.

The Union filed two grievances.  

On the interpretation of the CBA, the arbitrator concluded that the CBA gives the Union the right to have an observer present throughout the entirety of the interview process, even after union members are no longer contenders for the position.  In his view, the interview process cannot be seen as a bifurcated process where there is first an internal competition and then an external competition.  Rather, it is an ongoing process and the observer is entitled to be present for the entirety of that process in order to ensure uniformity and consistency.

On the privacy question, the arbitrator concluded that the presence of the observer during interviews of external applicants did in fact violate the privacy rights of those external applicants.  In his view, however, this conflict could be circumvented by compelling SIAST to require any non-union applicants to consent to the release of their application information needed to allow the union observer to be present during the interview.

On judicial review, the Court of Queen’s Bench upheld the arbitrator’s decision that the Union had the right to have an observer present through the interview/assessment process even after all union candidates had been eliminated.  In the Court’s view, this was a reasonable interpretation of the CBA and it would be inappropriate to interfere with the arbitrator’s decision in this regard.

On the privacy question, however, the Court disagreed with the arbitrator and concluded that a candidate applying for a SIAST position is providing personal information to SIAST for the purpose of his or her job application.  The applicant voluntarily submits to the hiring process, which pursuant to the CBA, necessarily includes the involvement of the observer.  The applicant’s personal information is therefore being legitimately disclosed for the purpose for which the information was obtained and for a use that is consistent with that purpose.  The Court concluded therefore, that the external applicant’s privacy rights are not violated by the disclosure of the information to the observer. 

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