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HomeMy WebLinkAbout2012-3171.Leung.14-08-29 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2012-3171 UNION#2012-0599-0014 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Leung) Union - and - The Crown in Right of Ontario (Ministry of Finance) Employer BEFORE Marilyn A. Nairn Vice-Chair FOR THE UNION Lesley Gilchrist Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Omar Shahab Ministry of Government Services Legal Services Branch Counsel HEARING August 20, 2014 - 2 - Decision [1] This is a job posting grievance alleging a violation of Article 6.3 of the collective agreement between the Crown in Right of Ontario (the “Crown”) and OPSEU. The successful candidate in the competition was given notice of the proceedings but is no longer in the position. He did not attend. The position has apparently not been re-posted. [2] There was no dispute that Article 6.3 of the collective agreement sets out a ‘relative equality’ clause. That is, where the “qualifications and ability to perform the required duties” as between the competing candidates are relatively equal, seniority becomes the deciding factor. There was also no dispute that in determining “relative equality”, candidate assessments that fell within a differential of 10% of each other would reflect relative equality. [3] The employer agreed to proceed first, although it maintained the position that the union continued to bear both the evidentiary and legal onus of establishing a breach of the collective agreement. [4] The posting on April 17, 2012 was for a Senior Field Auditor, Electricity Act Audit, within the Ministry of Finance (the “Ministry”). That position is classified as a TA5. At the time of the posting, the grievor, Albert Leung, was employed as a Senior Field Auditor, Mining, also classified as a TA5. The successful candidate, Alan Ogle, was employed as a Field Auditor, Electricity Act Audit, a position classified as a TA4. [5] The grievor has been employed with the Ministry since 1987. Mr. Ogle has been employed by the Ministry since 1985 and had greater seniority than the grievor. The grievor has been employed in the TA5 classification since about 2002. The competition [6] There were three individuals on the selection panel. Mr. William Arblaster, a Senior Group Manager of Electricity Act Field Audit chaired the panel. He has worked with the Ministry since 1985 and has held both TA4 and TA5 positions in earlier years. He has been a Senior Manager since 2003. Also on the panel were Mr. Koss and Mr. Blackwood. Mr. Koss is also a Senior Group Manager in Electricity Act Audit. At the time, Mr. Blackwood was a Senior Manager in the rulings and interpretations area in tax advisory within the Ministry. [7] Five individuals were initially screened into the competition. Three were ultimately interviewed as part of the competition. A scored assessment of each candidate included a written test, oral interview, and an oral presentation. There is no dispute that the terms of that assessment were relevant to the qualifications and ability to perform the job and there was no challenge to the manner of the scoring. Mr. Arblaster had utilized the assistance of a Human Resources recruitment advisor in establishing and managing the competition. [8] In that assessment, Mr. Ogle scored 79%, the third candidate scored next, and the grievor scored 64%. The grievor scored better than Mr. Ogle in the presentation and slightly below him in the interview. Mr. Ogle scored much better than the grievor on the written test. There was no - 3 - dispute that the candidates were all qualified to perform the job. The issue was with respect to their relative equality. [9] During the interview process the panel had each candidate’s resume as part of their materials. The first question posed in the interview, and which was accorded the greatest marks, asked candidates to review four areas of expertise, asking them to specifically reference their employment history in support. Mr. Arblaster testified that the candidate’s resume was reviewed during that process, both to ensure that they did not leave anything out and to assess the validity of what the candidate did say. [10] During the interview candidates were asked to provide the names of references. Those references were checked prior to any decision being made. Mr. Ogle identified both Mr. Arblaster and Mr. Koss as references. They both completed a reference check questions form and supplied it as part of the process. The grievor’s supervisor was contacted and he also completed the written form. Seven questions asked for a rating. While the grievor received a favourable reference, the rankings overall were higher for the successful candidate than for the grievor. Those references were reviewed by Mr. Arblaster and Mr. Koss. [11] The grievor had supplied two other references who were not contacted. Mr. Arblaster understood both to be TA5s also in the OPSEU bargaining unit. He testified that only supervisors would be contacted for references, a requirement that the grievor understood. One of the individuals had supervised the grievor in the past, a matter unknown to Mr. Arblaster. The grievor did not name Mr. Arblaster (his previous supervisor) as he had worked for his named references for longer periods, and, he felt to do so would be inappropriate as Mr. Arblaster was on the panel. He did not raise this latter concern with Mr. Arblaster or the panel. Mr. Arblaster testified that, if asked, he would have given the grievor a very similar reference to that given by the grievor’s supervisor. Mr. Arblaster acknowledged that the panel did not advise the grievor that it believed certain of his references were not supervisors and therefore would not be contacted or allow the grievor the opportunity to provide an explanation or other names. [12] Following the interview process but prior to reaching a decision, Mr. Arblaster and Mr. Koss spent a day reviewing the employment files of each candidate. During that process they reviewed and considered the numerous performance appraisals of each candidate, dividing their conclusions regarding those appraisals into two time periods; the last ten years and the prior ten years. They concluded that the grievor’s ratings were consistently slightly above average. They rated Mr. Ogle’s appraisals as consistently above average. Mr. Arblaster acknowledged that he did not notice from one annual appraisal that the grievor had worked on an electricity audit in or about 2003/04. Nor was it apparent that the grievor made mention of that work during the interview process. Mr. Arblaster testified that they were looking for anything not reflected in the testing and interview process. He agreed that no numeric or other empirical scale was assigned to the conclusions drawn from the review of the employment files. [13] Mr. Blackwood did not review the employment files or the references. Mr. Arblaster testified that had anything come up indicating any new information or any concerns or inconsistencies with any of the material already available to the panel (whether positive or negative), it would have been brought to Mr. Blackwood’s attention for his review and input. Mr. Arblaster testified that the information in the employment files gave neither candidate a particular advantage and agreed that it was probably fair to say that this review played a smaller - 4 - role in the competition than the interview scores. He disagreed that the review was confirmatory of a decision already taken. Mr. Arblaster acknowledged that, having supervised both employees in the past, they did discuss how he felt of both employees as auditors. Mr. Arblaster agreed that the grievor’s appraisals were for a higher-rated job, but he did not view that as an advantage in the circumstances of this competition. [14] The posting closed on May 1, 2012. Mr. Arblaster initially planned to run the competition during the last week of June. Prior to finalizing the interview schedule, Mr. Arblaster became aware that the grievor would be absent on vacation and postponed the competition. The grievor returned from a three-week family vacation in Asia on Monday, July 9, 2012. The written test was completed by all candidates on Thursday, July 12, 2012. The grievor’s oral presentation and interview was postponed to Monday, July 16, while the other candidates were interviewed on Friday, July 13, 2012. [15] The grievor testified that he was jetlagged on his return and did not do as well on the test as he might have. He also testified that he did not have enough time to prepare. There is no evidence that he asked that the test also be postponed. The grievor acknowledged that he did not prepare at any time prior to or during his vacation, although he was aware that a competition would be conducted. He noted that the test was ‘closed book’, whereas in doing the work, research materials are available to check and review. The work of the Senior Field Auditor, Electricity Act Audit, the TA4 and TA5 classifications, and the candidates’ experience [16] Mr. Arblaster explained the organization of the work unit and the work required of the position. This position was for a senior field auditor in ‘Electricity’. That area deals exclusively with the hydro industry, whether generation or wholesale or retail distribution. [17] Prior to 2008 the Ministry had responsibility for corporate tax audits for any corporation in Ontario. In 2008 that responsibility was divested to the Canada Revenue Agency with the exception of three areas, insurance premium tax, Electricity Act audits, and mining audits. The Electricity Act audits now capture legislated tax implications relating to Ontario corporate income tax, Ontario capital tax, Ontario corporate minimum tax, as well as federal corporate income tax and federal capital tax. Responsibility for the federal tax audits of the hydro industry is new since 2008. The Electricity Act area also has responsibility for transfer tax audits, work also specific to that area. Mr. Arblaster contrasted that work to audits in mining, which relate essentially to corporate income tax returns. Tax avoidance knowledge was less relevant to the Electricity Act area according to Mr. Arblaster, as the industry was highly regulated and the incidence and/or likelihood of tax avoidance issues was significantly less than in other areas. [18] The job specifications for the TA4 and TA5 classifications have been in place since 2008 and are very similar to those in place prior to the divestment of the significant portion of the auditing work. The job specifications apply to all areas, whether mining or Electricity Act. According to Mr. Arblaster, the practical difference between the work of the two classifications arises if there is a team audit, during which the TA5 would be expected to lead the team, perform more of the audit planning functions, and perhaps review working papers. However, team audits in the Electricity Act area are rare. In Mr. Arblaster’s area there is one team audit. During his - 5 - prior work in the banking group, described as involving audits of the largest taxpayers in Canada, only one team audit operated. [19] The grievor noted that, apart from leadership skills, a TA5 was also expected to audit the larger files, those with gross revenue in excess of 100 million dollars, and that those files were generally more complex. TA4s typically deal with ‘medium’ or small’ files. Mr. Arblaster confirmed that, generally speaking, a more complex file should be handled by a TA5. He noted that the reference to gross revenue had been deleted from the job specification in 2008, although that distinction continues to appear in the Ministry’s Integrated Audit Handbook. He testified that as a general matter, larger files were likely to be more complex, but noted that smaller files could also produce complex tax issues. In the Electricity Act area, one taxpayer is very complex and the team audit deals with that file. Apart from that team audit, Mr. Arblaster described the work of a TA4 and TA5 in the Electricity Act area as very similar. Both Mr. Arblaster and the grievor confirmed that all of the audit staff, including managers, receive the same annual training. [20] Following the divestment of work in 2008 there was a significant reorganization of the audit area. Mr. Arblaster explained that the Electricity act area was supposed to receive four TA5 auditors and five TA4 auditors. Two of the four TA5 auditors were immediately seconded to a transition team dealing with corporate tax issues. Three TA4s were hired. It was the uncontested evidence of Mr. Arblaster that, since 2009 and because of this staffing, Mr. Ogle had been performing work of a TA5 although classified as a TA4. Mr. Arblaster had, as manager, on more than one occasion, sought permission to place Mr. Ogle and another TA4 in the TA5 classification in an acting capacity, in recognition of the work they were performing. He was denied permission on the basis of financial constraints and had spoken with both TA4s as to their willingness to continue to perform the work. He testified that Mr. Ogle was agreeable, as the work could also be more interesting. [21] Following an assignment in the banking group, the grievor was placed in mining as a result of the reorganization in 2008. His seniority allowed him to remain with the Ministry following divestment, but it did not give him his first choice of assignment, that being electricity. For the first 3-4 years in mining he was actively involved in tax avoidance issues and had responsibility for large, complex files. His work continued to reflect the job specification for a TA5. He has never been disciplined. He applied to the posting as an opportunity to develop his skills outside mining. [22] Mr. Arblaster has not worked in mining audits. Prior to his current position he managed the banking audit group. Since 2008 he has managed one of the Electricity Act audit groups. In those capacities he has directly supervised both the grievor (in banking) and Mr. Ogle. He testified that, while both employees were good auditors, in his opinion, Mr. Ogle was the better auditor for this position. [23] As noted, as of 2008, the Ministry was responsible for auditing the hydro industry with respect to both provincial and federal tax laws, whereas previously they only captured provincial legislative requirements. Mr. Arblaster gave numerous examples of the deductions and credits that were peculiar to the federal tax system and others that were different from their provincial counterparts. He noted that there were also nuances between industries, for example, that certain - 6 - items were capitalized for tax purposes in the hydro industry; items that would be expensed in other industries. Accounting policies for fixed asset capitalization were also different in hydro. [24] The grievor had limited, or no experience with the federal tax law aspects and none since 2008. Nor was he familiar with the industry. Mr. Ogle had significant experience in Electricity Act audits. He had been conducting Electricity Act audits since 2008. Mr. Ogle had also done extensive work with respect to transfer tax audits. * [25] The employer argued that both the evidentiary and legal onus rested with the union. It was the position of the employer that the process conducted was entirely appropriate. Further, it noted that, as the grievor had less seniority, the ‘relative equality’ provision operated in favour of the successful candidate. The employer did not, it argued, rely solely or inappropriately on the standardized testing format. It also took into account all of the material described by the cases as relevant - employment history, resumes, and references - prior to reaching a decision. The employer was not prohibited from using standardized tests, noted the employer. Nor was it required to attribute a score to those other materials. Rather it was required to, and had given real consideration to that information. [26] Even were the Board to conclude that there were flaws in the competition, there would be no basis to either re-run the competition or appoint the grievor to the position, argued the employer. In order to establish any right to either remedy, argued the employer, the union must establish that those flaws had a real, demonstrable ability to affect the result. Further, if there was an allegation of a failure to consider relevant abilities or experience, evidence of those factors need be provided in the hearing. Absent such evidence it was not open to the Board to find that there was relevant information not considered, argued the employer. [27] Mr. Ogle had a clear advantage over the grievor, argued the employer, in terms of his work in the Electricity Act area. The grievor would be required to show that his work as a TA5 warranted significantly more points to overcome the spread in the results. There was no evidence, argued the employer, to demonstrate that the grievor would have been preferred over Mr. Ogle for this position. [28] It was the union’s position that the employer had failed to properly take into account the grievor’s actual work history and long and excellent performance as a TA5, and that it placed too much reliance on the results of the scored assessment. The union argued that the difference in the candidates’ classifications was meaningful and that any suggestion that the work of the two classifications was the same ought to be viewed with skepticism and as self-serving. It was difficult to fathom, argued the union, that someone with less responsibility and no leadership role was relatively equal to someone with more responsibility and greater leadership responsibilities. [29] The union noted that no one inquired of the grievor as to why his test result was less than what would be expected based on his performance at work. The grievor’s performance record stood as a much better indicator of his abilities, argued the union. There was no system to consider performance or references, argued the union and only part of the panel looking at the employment files did not constitute ‘considering’, argued the union. While there may be no obligation to score that material, argued the union, “due” and “active” consideration must be - 7 - given to it. There must be some measure to show meaningful consideration, argued the union. The employer must show that it took the grievor’s abilities to perform the work into account, not his ability to take a test, argued the union. Where other, more reliable means exist to measure how the grievor would perform in the job, those must be utilized, argued the union. [30] Proper consideration of the grievor’s work history would have made a difference in the result, argued the union. The fact that the grievor had held the TA5 classification for years stands for itself, argued the union. If the grievor’s experience had been properly considered, argued the union, he would have been awarded the position. Of the two candidates, one exceeded expectations in the job for twelve years, the other had not, argued the union. [31] In terms of remedy, the union noted that the incumbent was no longer in the position. Therefore, it argued, a re-run of the competition would simply be a mechanical exercise and futile in the circumstances. It asked that the grievor be placed in the position. [32] In reply, the employer noted that the evidence was uncontradicted that Mr. Ogle was doing the work of a TA5. Whether his classification as a TA4 was appropriate or not was both not arbitrable under the terms of this collective agreement and was not relevant to this dispute, argued the employer. More pertinent than the job specifications, argued the employer, was the work that each candidate had performed over their work history. * [33] The parties referred me to the following cases; Ottawa Civic Hospital and ONA (Rowe), (1989) 9 L.A.C. (4th) 248 (Mitchnick); OPSEU (Brimicombe et al) and the Crown in Right of Ontario (Ministry of Labour), GSB File #2007-2529 et al., decision of Vice-Chair Dissanayake dated June 15, 2010; OPSEU (Liblik/Scipnek) and the Crown in Right of Ontario (Ministry of Transportation), GSB File #2525/91, decision of Vice-Chair Dissanayake dated November 19, 1993; OPSEU (Sauve) and the Crown in Right of Ontario (Ministry of Transportation), GSB File #1695/91, decision of Vice-Chair Gray dated May 3, 1993; OPSEU (Jobson) and The Crown in Right of Ontario (Ministry of Transportation), GSB File #2008-1107, decision of Vice-Chair Petryshen dated April 8, 2011; OPSEU (Naczynski) and The Crown in Right of Ontario (Ministry of Economic Development and Trade), GSB File #2003-3124, decision of Vice-Chair Abramsky dated January 16, 2006; OPSEU (Esposito) and The Crown in Right of Ontario (Ministry of Housing), GSB File # 2168/92; decision of Vice-Chair Kaplan dated September 29, 1995; OPSEU (Bent) and The Crown in Right of Ontario (Ministry of Transportation), GSB File #1733/86; decision of Vice-Chair Fisher dated January 23, 2989; OPSEU (Simmons) and The Crown in Right of Ontario (MGS), GSB File #483/82, decision of Vice-Chair McLaren dated January 27, 1983; and OPSEU (Difederico) and The Crown in Right of Ontario (MAG), GSB File # 1992-0827 et al., decision of Vice-Chair Petryshen dated February 9, 2007. [34] The cases cited review at length the Board’s expectations as to the conduct of a job competition under Article 6 of this collective agreement and more generally. [35] In assessing the candidates it is the case that the union is required to establish that the grievor was a demonstrably better candidate than Mr. Ogle. If the grievor’s qualifications and abilities to perform the required duties are ‘relatively equal’ to those of the successful candidate, - 8 - as the candidate with the lesser seniority, he would fail. The collective agreement requires that where candidates are relatively equal, seniority shall be the deciding factor. [36] The employer did not rely solely on the results of the scored process. It did take into account those other indicia of ability referenced in the caselaw, employment history including performance appraisals, resumes, and references. While it would have been preferable for all three members of the panel to be involved in the review of the employment files and references, particularly in the circumstance of two of the panel members acting as references, I am not persuaded that Mr. Blackwood’s participation in those activities would have resulted in a different conclusion. There is no basis on which to properly discount any of Mr. Arblaster’s evidence. He was clear that had that review produced any information, whether positive or negative, affecting their consideration, it would have been reviewed by the panel in full. No such information came to light. He confirmed that he would have provided a very similar reference to that of the grievor’s current supervisor. I have reviewed the performance appraisals and the references. Whether the grievor’s performance appraisals indicated that his work was ‘slightly above’ or was ’above’ average may perhaps be debated. Raising that evaluation to ‘above’ average would not however change the outcome of this competition. Both employees would have had a similar qualitative assessment of their performance. The real difference is with respect to the kind of work that they have performed. [37] Two very good candidates competed for this position. The grievor has worked as a TA5 for some 12 years and his performance is something about which he may be proud. He is qualified for the posted position. However, this was a competition and, notwithstanding his good work, a comparative exercise is engaged. [38] In terms of his ability, the union essentially relied on the assertion that, as a TA5, the grievor has more experience with complex audits. However, the evidence regarding the successful candidate was uncontested. Although classified as a TA4, he has performed the more complex audit work of a TA5 as well, a matter that the manager has attempted to address vis-à- vis his classification more than once since 2009. That evidence of his work experience, supported by consistently above average performance appraisals establishes that Mr. Ogle is also able to, and has well-performed the duties of a TA5. [39] Where the candidates differ is in their specific experience. That experience is evidence of the candidates’ current abilities. In addition to those differences outlined by Mr. Arblaster, the fact that the grievor sought the position in order to broaden his experience from mining confirms that mining and electricity deal with different subject matter expertise. The grievor has no recent experience in the Electricity Act area, a matter that the employer is entitled to consider. The fact that he could no doubt acquire that subject knowledge is not enough in the circumstances. Mr. Ogle’s experience and performance established that he already had abilities relating to Electricity Act work that the grievor did not have. Furthermore, areas of greater experience in tax avoidance and team leading enjoyed by the grievor were not relevant for the posted position. [40] Nor can the employer be faulted for not delaying the test further. The grievor’s interview and presentation were postponed. Employees bear the responsibility for preparing themselves for a competition. The grievor had returned from vacation. He had been aware that a competition would be held for some time following the closing of the posting. He did not raise any of his - 9 - concerns with the employer prior to the test. I am not persuaded that this evidence properly forms the basis for a conclusion that the competition process was flawed. [41] Even were I to conclude that the grievor might have performed better on the test had it been delayed, the grievor would have been required to score substantially higher on the test in order to reach a score that moved him beyond ‘relative equality’. Mr. Ogle scored 79%. The parties agreed that candidates within a differential of 10% are “relatively equal” (a matter considered by the Board in a number of cases, see for example, OPSEU (Difederico) and the Crown, supra.). Had the grievor advanced his overall score to within 10% (either way) of that of the successful applicant, the proper conclusion would have been that the candidates were relatively equal. In that case, the senior candidate, Mr. Ogle, would be entitled to the position. In order to establish that he was the better candidate, the grievor would have had to reach an overall score of 90% (requiring, essentially, 100% on the test portion), a more than significant amount compared to his actual score of 64%. There is no support in the evidence from which to conclude, on a balance of probabilities, that such an outcome was likely. [42] Having regard to all of the above, I find that there was no violation of Article 6.3 of the collective agreement. This grievance is therefore dismissed. Dated at Toronto, Ontario this 29th day of August 2014 Marilyn A. Nairn, Vice-Chair