Loading...
HomeMy WebLinkAbout1991-2969.Bathia & Ababio et al.93-05-14I ., ; · :?' : ONTARIO EMPLOYESDE LA COURONNE · ~:. CROWN EMPLOYEES DE L 'ONTARIO GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT. BOARD DES GRIEFS 180 DUNDAS STREET WEST, SU/'t'E 2100, TORONTO, ONTARIO. M5G 1Z8 TELEPHONE/TEL'~'PHONE,. (,z '~6J 326-1388 t80, RUE OUNDAS OUEST, BUREAU ~'IO0, 'TORONTO {ONTARIO}. MSG IZ8 FACStMItE/Tr~!.,~COPIE .' [47~J 326-1396 2969/91, 381/92 IN THE ~TTER OF ~N AItBZTP~TION Under THE CROI~N EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Bathia/Ababio et al) Grievor - and - The crown in Right of Ontario (Ministry of Revenue) Employer BEFORE H. Waisglass Vice-Chairperson Ji Carruthers Member D. Montrose Member FOR THE N. Coleman GRIEVOR Counsel Gowling, Strathy & Henderson. Barristers & Solicitors FOR THE -~,;. Costen , ~ RESPONDENT Counsel Legal Services Branch Management Board of Cabinet HEARING April 5, 1993 DECISION This case involves twelve Field Auditors employed in the Retail Sales Tax Branch in Toronto. They orieve they are "im[~rooerlv classified" as a Financial Officer 2 [Atvoicall. claiming they should be reclassified "to an F.O.3 _(Atypical_l: or an approoriate classification effective October 1. 1986". This claim is based upon comoarisons with the F.O.3 [Atvoical] position of Senior Field Auditors in the Motor Fuels & Tobacco Tax Branch in Oshawa. The twelve grievances, in two Board files. 2969/91 [4 arievorsl and 0:381/92 [8 orievorsl, have been consolidated,. An earlier classification odevance of incumbants of the same oositions, which are the subject_of this current odevance, was denied by a differentfv-constituted 0anel of this Board. The taoard decided that the arievors were not imorooerlv classified. The essense of this case is whether these current odevances may now oroceed on evidence and ar(~uments that were not oresented to the earlier 9anel. The orievors, like those in OPSEU (Palmer et al~, & Ministry of Revenue [19911: GSB 2017/86 et al [McCamusl. are all employed as field auditors in the Retail Sales Tax Branch of the Minist .ry of Revenue in Toronto. Broadly sneaking, their core duties involve responsibility for performing audits of businesses uo to a certain size. and for assisting in audits of larger size businesses, for the. ouroose of assudng compliance with the Ontario retail sales tax legi§lation, The oresent 9rievors were among a much larger group of field auditors who had previously presented the same grievances as are currently before us. that they were improperly classified as F. O. 2's. The earlier orievances o~oceeded on both a "class usaoe;' claim and a "class standards" claim. The usage evidence was based upon comnarisons with the work of F.O.4's emoloved in the same Branch. The orievances did not succeed. /Palmer et al/ rMcCamusl found that the oositions are not imoro~erlv classified. Counsel for the Emolover submits a orelimina _ry objection that these orievances are the same as arievances which have been decided oreviousiv. He aroues this oanel should be auided by the Shime decision in Blake et al [1267/87 et al.] Counsel submits that the same issues, involvino the same oarties, were decided bv an earlier'panel. Palmer et al [McCamusl. Which ruled on the same classification arievances of both current and prior incumbents of the same F,O, 2 oositions. He ooints out that this decision was affirmed by OPSEU (Booth~ &Ministrv of Revenue [1 9921: GSB ~946/87 [Gorskvl. which also denied an F,O. 2's usaoe claim reOardino an F.O.4 comoarator .oosition. based u~on evidence of a different core,orator position. We note. '3 however, that this case was heard separately, It is distinouishable from the main body of the ~ F.O.2 orievances which Palmer et al fMcCamusl resolved in that the Core duties for both the orievor's and the comDarator's positions' in the Booth case, unlike the Palmer case~ pertained exclusively to the refund audit function in the Retail Sales Tax Branch at Oshawa. Counsel for the Emolover'uroes us to apply nCt only the Blake award, but also Sec 19 (1~ of the Crown Employees Collective taar(]ainina Act.. which reouires the final and bindino decision of (]rievances. This, he submits, must brin~ us to the inevitable conclusion that the Union is precluded from re-litiaatino these arievances. He points out that not only are the issues in this. case the same. but also the parties, the grievors, and the grievances are the same as in Palmer et al [McCamusl. We find these submissions are supported bv the evidence. We accept the views of Chairman. Shime in Blake and we apply its ouidelines in this instant case. "Thus each decision by a panel becomes a decision of the Board and in our opinion the' standard of manifest error which'is appropriate for the private sector is not appropriate for the Grievance Settfem~r~t Board. The Act does not oive one,panel the right to overrule another panel or to sit on a.opeal on the decisions of an earlier panel. Also. aiven the volume of cases that are currently administered bv this Board. the continuous attemDts tO persuade one panel that anothef panel was in error only encourages a multinlicitv of oroceedinas and arbitrator shooDina which in turn creates undue administrative difficulties in handlin(] the case load. "We are mindful, however, that there is no provision for aooeat and there are [imits to iudicial review. While i~ is our view that the 'manifest error' theory is too tax a standard, we recoonize that there .may be exceptional circumstances where an earlier decision of this Board mioht be reviewed, At this point we are not prepared to delineate what constitutes exceptional circumstances and the fleshine out of that standard wilt be determined on a da-Ce'by case'basis, Th& onus wii~'be on,th; party Seekino review to establish exceptional circumstances." We accept the submissions made by Emol0ver's counsel that we should ap.ply the 8lake d~ecision and not ~ermit these grievances to proceed because they are the same as the (]devances which have already been litigated in Palmer et al fMcCamus]. The grievances are .the same, the issues and parties are the same. and the facts are the same. The only thinos different in this case are the erievors and the claim of the Union that there is' now new evidence and new amument which were not out to the .~revious panel. It ~s not an issue 4 here whether emotovees have a seoarate and indeoendent ri(Iht, aoart from the Union. to proceed to arbitration on.grievance. That issue also was decided in Blake Blake reouires that different panels of the Board not overrule earlier decisions of other panels unless the'circumstances are "exceotional". It reouires also that "The onus will be on the oartv seeking review to establish exceotional circumstances." Counsel for the Emolover relies on OPSEU (Gould & Field) & Ministry of Transoortation r19901: GSB 674/88 et al _[Knopf_]. We endorse the delineations made therein bv Chairperson Knoof on the Blake doctrine of "exceotional circumstances", at DP 6-7: "If the discovery of new evidence' could ever amount to 'exceptional circumstances' suggesting the ao~roDriateness of reviewing an earlier decision, the party seeking such consideration should, at the very. least, have to demonstrate that the Dew evidence could not previously have been obtained by 'reasonable diligence' and the new evidence is such. that if it was adduced, it would be practically conclusive of the issue. Or. the partv should have to demonstrate that it wishes to make reoresentations that have not already been considered by the Board that the oartv had no opportunity of raising previously. These tests are consistent with the rules laid down in the Courts to order a new tdat and which have been adooted by the Ontado~ · Labour Relations Board as the orincioles governing the exercise (~f the Board's discretion. While none of those are officially binding uoon this Board. they are well tested rules and provide a fair set of Drincioles to be considered as guidance." We acceDt these criteria and we aoolv them to the issue we are now asked to decide: Does the , claimed com~arator position of F,O,3 in Oshawa constitute the discovery, of new evidence amountina to "exceptional circumstances" which permits a review of an earlier decision? In order to establish exceDtional ~ircumstanc~s": the or'us is on the Union. in this case. to meet the following tests: the Union must demonstrate that the new evidence could not"have been obtained previously by "reasonable ditigence") and the Union must establish that the new evidence is such that~ if it was adduced) it would be practically conclusive of the issue. Union's counsel submits that this dase does not seek to overrule Blake~ but rather it seeks to oroceed on the basis of new evidence of a new and different comoarator position than that used in the decided case-- Palmer e~ al ~McCamus]. Thus. the oolicv of 'manifest error' which was articulated in the Blake award is not an issue in this case. 5 That this is new evidence on a different comoarator position which could not have been used previously to support its earlier usage argument is the basis upon which the Union now claims "exceotional circumstances". ,' Union counsel submits these orievances should nroceed on the basis of new facts and arouments which were not available to the Union in the proceedings on Palmer et al [k~cCamusl. He urges us to treat this case as new orievances the same way this vice-chair had done in OPSEU (Bent/Mahler~ & Ministry of Tr@nsDortation [19921: GSB 2091/91 [Waisglass]. Thus~ this oanel is asked to oroceed now on a new and different set of factsj to re-ooen the usage claim in order to admit new evidence on a new comparator position~ and to determine the classification arievance on this new evidence. CoUnsel for the Union pointed out that when the F.O.3 comparator positions were first established durino the 1986 re-(~raanization, in the Audit Section of the IVlotor Fuels & Tobacco Tax Branch at Oshawa. it was anticipated that the incumbents would be orovided with special trainina' and eouioment to conduct comouter-assisted audits. The Union amues {hat because such training and eouioment have not since been 0rovided. the lob is not now what was originally intended: It was submitted that if the lob would be now what had been originally antiCioated the Union would not be oresenting it at this time as a usage claim. Union's counsel explains, that evidence on this com~arator p0sJtion was not oresented to advance its usaae claim in .Palmer et al because during that time oeriod the Union was processing competition grievances claiming these F.O,3 oositions had been filled in 1987 by a flawed comoetition. The Union believed these arievances offered the Emolover an excuse for not oroviding the incumbentsc.¢ith.the training and equi.ome..nt for the conduct of computer~assisted audits. The c.omoetition grievances were not decided until February 10~ 1989, in OPSEU (Anderson et al/& Ministry of Revenue [1989~: GSB 0213/87 [Katesl. As a result. seven oositions were re-oosted and filled in Februa .ry, 1989, Counsel submits that the incumbents have not since been given s.oecial training to Der(otto comouter-assisted audits. This oanet of the Board notes that the first day of the hearinas in Palmer et al was on October 13.19892 some eioht months after Anderson et al was decided on February, 10. 1989. Why the Union did. not then submit the F.O.3 usage evidence in sup.~or~ of its usage claims in the .prOceedings on Palmer et al is not exot~ined. 6 Bent/Mahler [Waisa[ass]. ooints out that it did not "refuse to aoolv the ouidelines established in Blake" when it refused to follow certain earlier cases involving classification grievances. Rather. it had "distin(]uished those cases on Qrounds which are materia! and retevant'~. It found "the Blake (]uidelines are not aoolicable here because the earlier panels had decided issues that . are different from those issues which are before us in this instant case." The comoarator position used in Bent/Mahler [_Waisgtass] did not exist when the earlier usage cases were oroceedino. Emolover~s counsel submits that the oresence of the comoetition adevances chailenaino the occuoancv of the F.O,3 oositions does not excuse the Union's failure to oresent that usaae claim durina the course of the oroceedinas in Palmer et al. He ooints out that the Union obviously was aware at the time of those oroceedinas that these were established and Occupied oositions. notwithstanding the challenge to the incumbents which the comoetition grievances may have presented. We find the facts su.~port this submission. ~ We acceot the Emolover's submission 'that the Union's oroDosal to add the F.O.3 comoarator to its class usaoe claim could have been made durino the course of the hearinos in Palmer et al. in the Period October 13. 1989 to March 2_9: 1990. or perha.DS earlier. Nearlv all the arievances included in that case had been filed with the GSB in 1987. The evidence is that the F.O.3 oositions were filled in 1987': The Com,~arator positions a.o0arently existed when those grievances were fifed~ and certainly by the time the grievances came to be heard. IThe Position Snecification for the F.O, 3 lobs in Oshawa fExhibit 3] sh~ws an effective date December ~. 1986.] In anv event~ it is agreed fact that the oarties had agreed to admit [~ost-grievance evidence in the hearings on Palmer et al. It was open to the Union to submit to that oanel its usage claim on the F,O,3 com.oarator.iobs and to ask that oanel, to determine the admissibility_ of evidence to su.o.~ort that,c!~. We believe that~ the evidence regarding the F.O,3 usage was liketv available to the Union in 1987 when the Pa.lmer. grievances were filed, and certainly durina the oroceedinas. No doubt, the Union could have obtained the evidence oreviouslv by "reasonable diligence" and it had the o..a~ortunity of .oresenting the evidence and ar(~uments on the F,O.3 usaae claim in the palmer et al case. The facts indicate ,the Union chose not to oursue the F.O.3 com~arator in the orevious usaoe' claim, Why then should it be permitted to do so now that Palmer et al has decided the issues? The Union's answer is~that the trainin(] and eouiDment reouired fo,,the comouter-assisted audit duties have still not been orovided to incumbents in the F.O.3 comDarator positions. But that 7 fact was known oreviouslv and could have been oresented to the panel in P__almer et al durina the course of its headnes which concluded on March 29. 1990. The Union chose not to do so. The Union has not ~ersuaded us that this additional time [to October. 1991. the date of the current grievancesl of non-use makes a difference'for establishing the validity of the argument that comouter-assisted audits have evaoorated as a core duty. and that the remainino core duties are now the same. We have not been oerSuaded that the core duties of the F.O. 3 lob were different in October. 1991. than they were earlier, throughout the period when Palmer et a~l was oroceeding: There is nothing in the Union's submissions to persuade us that the evidence and arguments on this new usage claim could not have been oresented earlier to the Palmer panel. We accept the Emoloyer's submissions that the new evidence uoon which the Union oroooses to oroceed is not "oracticallv conclusive of the issue". The comDarator .oosition is concerned with core' audit duties which ~ire apparently different from the audit duties of the grievors. We have examined the Position Soecifications [Exhibits 1, 2 and 3] which show some sianificant differences in the core duties of the Senior Field Auditor in the Motor Fuels & Tobacco Tax Branch from those of the Field Auditor in the Retail Sales Tax Branch. While audit functions may be similar, the duties are different at least to the extent that they relate to the reouirements of different tax statutes. We come to the conclusion that the Union has failed to demonstrate that it has new evidence which could not have been obtained oreviouslv by "reasonable dilioence". Therefore. we conclude that the evidence offered bv the Union does not satisfy the reouirements of "exceotional circumstances" as set out in Blake. We can not allow a 0artT. to .oroceed to relitiaate an 'issue on the basis of. such pro.sod evidence or argument, simply because it was not 0resented Dreviouslvl For the reason~iven herein, the ~reliminar~ obiecth3ns are u~held and the (]rievances are dismissed. DATED AT HAMILTON. ONTARIO. THIS L~ DAY OF ~lay 1993 {|ARRYJ. W ~ce-Chatrperson ~ D. MONTROSE, MEMBER