HomeMy WebLinkAboutP-1999-0020.Group Managers.00-10-02 Decision
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PSGB# P/OO20/99
IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE ACT
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
Group Managers, Mimsm of FIllance
Grievor
- and -
The Crown III RIght of Ontano
(Mimstn of Finance)
Employer
BEFORE John A. Willes, Q C Vice-ChaIr
FOR THE C Michael Mitchell, Counsel
GRIEVOR Sack., Goldblatt, Mitchell
Bamsters & SolIcItors
FOR THE LIane Brossard, Semor Counsel
EMPLOYER Legal ServIces Branch
Management Board Secretanat
FOR THE Timoth, Hadwen
UNION Counsel
HEARING October 26 1999 November 29 1999 December 22, 1999 January 21 2000
January 26 2000 February 16-17 2000 May 23-24 2000 May 31 2000 and
June I 2000
1
DECISION
The gnevance of the Group Managers, Mimstry of Finance, arose out of a decIsIon by
the Employer to reorganIze the dutIes of the AM20 Group Managers and create a number of
new AM21 posItions. The reorgamzatIon was a response to a salary compressIOn problem that
resulted from a new salary structure for semor bargaImng umt audItors (TA5) under a collectIve
agreement concluded m March of 1999 The AM20 Group Managers, some 18 m number
expressed theIr concerns about the reorgamzatIon of theIr duties by way of a gnevance to the
Deputy Mimster Mimstry of Finance, dated June 4 1999 willch reads III part as follows
"Dr Bryne B Purchase
Deputy Mimster
Mimstry of Finance
ih Floor Frost BUIlding South
7 Queen's Park Crescent
Toronto, ON M7A lY7
Dear Dr Purchase,
Thank you for your response to our letter dated May 5 1999
Your letter dated June 1 1999 stated that the current strategy to address the
recent salary compreSSIOn and converSIOn Issues IS faIr and reasonable We do
not beheve tills IS an eqUItable or faIr way to address the reorgamzatIon currently
underway In addItion to the concerns outlmed III our preVIOUS letter to you
dated May 5 1999 we would hke to draw your attention to the folloWIllg:
1 The dutIes for the proposed new AM21 s are essentIally the
same as those performed by the current AM20s. Furthermore,
there are only 9 new AM21 posItIons for over twenty eXisting
AM20 posItIOns.
2
2 Duties and responsibIhtIes for the AM20s are changed
drastIcally to accommodate the reclassIfication of the FO senes
of audItors to the TA senes - the TA5s will no longer report to
the AM20s. ThIS IS tantamount to a demotion or constructive
dismIssal.
3 Virtually all of the eXisting AM20 Group managers were
"promoted" from the F05 semor auditor posItions. When
promoted from these posItIOns, It was our understandIllg that we
would be responsible for all large audIts WIth semor audItors
reportIllg to us. The proposed reorganIzatIon has the new TA5s
sIttIng III the illerarchy above the AM20s.
4 There are precedents whereby other Mimstnes m the OPS
avoIded sImilar problems of salary IllverSIOn by maIntaImng the
same reportIng structure through upgrading all managers.
5 Some of the current permanent AM20 Group Managers are
not even ehgible to apply to the AM21 posItIons because of
the 40 km hrmtatIon.
Due to tIme constraIllts and to protect our mterests under Part V SectIon 34 of
the PublIc ServIce Act, we would like you to treat the above five pomts as a
gnevance filed by us under the saId Act.
Thank-you.
Group Managers (see sIgnatures attached)"
The gnevance was demed by the Deputy Mimster and the AM20 Group Managers
apphed for a formal heanng of theIr gnevance by the Pubhc ServIce Gnevance Board under
s.36(1) of Regulation 977 of the PublIc ServIce Act, R.S 0 1990 c.P-47 The gnevance
reads, m part:
3
"Dear Mr StIckland,
We are the Group Managers of the Corporations Tax Section WorkIllg III
several offices of the Tax Revenue DIvIsIon III the Mimstry of Finance. We had
filed a gnevance WIth the Deputy Mimster on June 4 1999 under Section 34
Part V of RegulatIon 977 of the Pubhc ServIce Act. FolloWing a meeting With
the Deputy Mimster's desIgnee on July 7 1999 we have receIved a reply on
August 16 1999 from the Deputy Mimster to our gnevance
As our gnevance has been demed by the Deputy Mimster we would like to
apply for a heanng of our gnevance by the Pubhc ServIce Gnevance Board, as
stipulated under SectIon 36 Part V of RegulatIon 977 of the Pubhc ServIce
Act.
Weare enclosIllg a copy of our gnevance that was submItted to the Deputy
Mimster
We look forward to the scheduhng of a heanng for our gnevance.
Yours truly
North York R.T.O.. Oshawa Head Office. MissISSaUga R.T.O..
Elmo Benedict Bill Arblaster KevIll Brooks
Raymond ChOl CynthIa Duncan Mark Longden
Wilham Hogarth DavId Duh1g
Denms Mah Azeez HooseIllny London R. T. 0..
Rick Montle MartIn Kenney Rudy Persaud
Ian Tso Steve Koss
Ron Young John Ascott Ottawa R.T.O..
KeIth Kawall"
The gnevance came on for heanng before the Pubhc ServIce Gnevance Board on
October 26 1999 and ImtIal procedural requests and obJectIons resulted III Illtenm decIsIons
dated December 13 1999 and January 13 2000 concernmg the productIOn of documents. At
the heanngs related to these Illtenm decIsIons, Counsel for O.P S.E.U appeared and made
submIssIons concernmg the dIsclosure of documents related to collectIve agreement negotiations
4
between O.P S.E.U and the Employer Counsel for the partIes, however agreed that
O.P S.E.U related documentatIon need not be produced at the heanng, and no O.P S.E U
negotiatIon documents were submItted as exhibIts.
Counsel for the Employer at the outset of the heanng raIsed a prehmIllary obJ ectIon to
the JunsdictIon of thIs Board to hear the gnevance on the basIs that the complaInt was essentIally
a classIficatIon matter and under s.31(4) of Regulation 977 thIS Board had no authonty to hear
the case
Counsel for the Gnevors submItted that the gnevance was not a classIficatIon gnevance,
but rather a complaInt concernmg workmg conditIons and bad faIth on the part of the
Employer and tills could only be determmed after the eVIdence was heard.
F OllOWIllg the openIllg statements on the JunsdIctIon of thIS Board, the matter was left to
be addressed m final argument, and a decIsIon on JunsdIctIon was to be made after the eVIdence
and argument was heard. Counsel then proceeded wIth theIr eVIdence and argument on the
Issues.
Counsel for the Gnevors called Mr Raymond ChOI, a Group Manager AM20 as hIS
first Witness. Mr ChOI testified that he was appomted to an AM20 posItIon m June of 1986
and has been employed as an AM20 SIllce that tIme He described the audIt system and the
role of AM20 Group Managers III the supervIsIOn ofF04 and F05 field auditors (now called
TA4 and TA5) F05 field audItors were semor audItors, and F04's were less expenenced,
and lower classIfied auditors. His eVIdence was that Group Manager AM20 was essentIally a
technIcal Job SIllce the managers' role was to supervIse professIOnals and provIde techmcal
advIce. He stated that F05 auditors normally did field audIts of the more complex
5
corporatIOns and F04 audItors were assIgned to less complex audits. His eVIdence was that
F04 audItors dId not report to F05 audItors, but each reported to the Group Manager He
also testified that on specIal tasks or where there were time lImIts, a team ofF04 and F05
auditors would perform the audit, but usually only one field auditor would perform an audit.
Mr ChOl could see no Justification for the creation of the AM21 Manager posItIon If the
purpose was to do more team audIts, as all that needed to be done III hIS opImon was ask the
AM20's to do more team audits. He stated that he could see no dIfference between the new
AM21 posItion and what AM20's had been dOIllg m the past.
Under cross examIllatIon, Mr ChOI stated that he was not certam as to the number of
team audIts that were conducted, but felt that the percentage was small, perhaps 3-5% of the
audIts. He also stated that he belIeved hIS career path was now blocked, as the AM21 's were
responsible for the larger more complex audits, and he would be demed tills expenence as an
AM20
Counsel for the Gnevors also called Mr Elmo BenedIct, a Group Manager AM20 to
testify Mr BenedIct testified that he had moved from a F05 posItIon to an AM20 posItIOn.
He stated that as a F05 audItor he enJoyed domg the large, complex audits, and when he
moved to the AM20 posItion, he supervIsed F05 auditors dOIllg thIs type of audIt. His
eVIdence was that he was not permItted to supervIse large audits or F05 audItors once the
AM21 posItion was created, and was now only permItted to supervIse the audIts of smaller
compames. He stated that he was advIsed that the only way he could be Illvolved WIth large
company audIts was to return to the bargaIllIllg umt as a F05 auditor His eVIdence was that
the new career path now seemed to reqUIre auditors to move from an AM20 management
6
posItion to a bargaImng umt F05 posItion to gaIn large corporation audit expenence, then apply
for the AM21 posItion III order to supervIse the large corporation audits.
On cross exammatIon, Mr Benedict admItted that Semor Management had made no
promIses to hIm that as an AM20 he would always be able to supervIse the audIts oflarge
corporatIOns.
Counsel for the Employer called Mr Roy Lawne, the AssIstant Deputy Mimster Tax
Revenue DIvIsIon, to testify as to the reasons why ills staffwas reorganIzed to estabhsh the new
posItIon of AM21 His eVIdence was that after 1995 It was necessary to hIre more field
auditors (F05 F04 F03) to ensure that corporate complIance levels remaIlled hIgh,
notwIthstanding tax reductions mtroduced by the government. He testified that the Federal
Government was also illnng auditors at the time, and offered substantially illgher wages for
posItIons eqUIvalent to the F05 and F04 posItions III Ontano His eVIdence was that new
salary levels were negotIated for the F05 and F04 posItions by theIr umon, and thIs resulted m
salary compreSSIOn between F05 and AM20 posItions, With top rate F05 salanes exceedIllg
those of the AM20 Mr Lawne's eVIdence was that he attempted to correct the sItuatIon by
reorgamzmg the work of the F05 and AM20 by the creatIon of the AM21 posItion. Tills new
posItIon would supervIse F05 audItors, leavIllg the AM20 With only F04 auditors to supervIse
Work would also be reorgamzed whereby the AM20 would supervIse only small corporations
audIts. The larger corporatIOns would be audIted by F05 or F05/F04 teams under the
supervIsIon of an AM21 His eVIdence was that thIs arrangement would only reqUIre a hmIted
number of new AM21 posItions, and would lessen the 'npple effect' of the wage Illcreases that
7
were gIven to F05 audItors He also stated that under the change a F05 would be a team
leader and supervIsor F04 audItors on team audIts.
At the end of Mr Lawne's eVIdence and cross examIllatIon, Counsel for both partIes
advIsed the Board that Mr Lawne had erred III hIS understandIllg of the AM21 posItion With
respect to the F04 and F05 (now TA4 and TA5) posItIOns Counsel advIsed that AM21's
were responsible for TA4's assIgned to them, and the TA4's reported dIrectly to the AM21 It
was also agreed that TA4's and TA5's report to an AM21If on a team, and that TA4's do not
report to TA5's. TA5's sImply 'lead' on a team audIt.
With respect to argument, Counsel for the Gnevors submItted that the reorgamzatIon of
the staff was made entirely by Mr Lawne for the purpose of hmItIng the 'npple effect' of salary
compreSSIOn caused by the compensatIOn mcrease granted to the F05 audItors through
collective agreement negotiations by theIr umon. Counsel submItted that Mr Lawne was III
complete error With respect to the Jobs done, and eIther would not admIt he was wrong, or dId
not understand the work done by the audItors. He stated that most AM20 managers had
moved to the AM20 posItion along a prevIously well defined career path ofF04 to F05 to
AM20 and that J ob advertIsements clearly outhned tills career path. The reVISIon of duties by
the creation of the AM21 senously affected thIS career path by denymg AM20 managers access
to large corporatIon audIt supervIsIOn and the supervIsIOn ofF05's (TA5's) Counsel also
submItted that the payment of AM20 managers at the AM21 rate for some eIght and one-half
months before the AM21 posItions were filled was recognItion of the fact that the posItions
were the same, and confirmed the eVIdence ofMr ChOl to that effect. He stated that the
8
eVIdence clearly Illdicated that there were no operational or busmess reasons to change the Job
of the AM20
The posItIon of Counsel for the Gnevors was that the eVIdence estabhshed that the
reorgamzatIon of the work and the creation of the AM21 posItion was the decISIOn ofMr
Lawne alone, and the decIsIon, and ItS effect on the AM20 Managers constItuted bad faIth on
the part of the Employer He submItted that the bad faIth on the part of the Employer was a
workIllg conditions matter that fell WithIn the JunsdictIon of the Pubhc ServIce Gnevance Board.
He suggested that the test for JunsdIctIon of thIs Board should be based upon a finding that the
Employer acted m bad faIth, acted III breach of a dIrectIve or guIdehne under the PublIc ServIce
Act, or acted III an arbItrary or IlleqUItable manner wIth respect to the employees. In ills VIew
the Employer's creation of the AM21 posItion was not a legitimate exerCIse of management
authonty as no need or vacancy eXIsted. He stated that the work of the AM21 posItion was
beIllg done by the AM20 and management recogmzed thIS fact by paYIllg all AM20's the
AM21 salary rate from January 1 1999 to October 19 1999
Counsel for the Gnevors noted that Mr Lawne's eVIdence was that the payment of
AM20 managers at the AM21 rate for close to 10 months was not' actmg' pay but done out of
'faIrness' Counsel for the Gnevors submItted that thIS was a clear admISSIOn that the AM20's
were dOIllg the work of an AM21 and the Jobs were the same, SIllce nothIllg changed until the
pOIllt m time when the AM20's were no longer permItted to supervIse TA5 auditors. He
submItted that the AM21 Job competItions reqUIred the AM20 managers to compete for a Job
that they had been dOIllg for years m theIr Job descnptIon as AM20 managers. He stated that
9
the new posItIon and the reorgamzatIon of the work was done for the sole purpose of savIllg
money and not for any efficIency of operation.
Counsel for the Gnevors submItted that the actIons of the Employer were arbItrary
IlleqUItable, and done III bad faIth. It was hIS posItion that these actIons of the Employer
constituted a vIOlation of the Gnevor's workIllg conditions, and consequently fell WithIn the
JunsdictIon of thIS Board. In support of hIS posItion, Counsel for the Gnevors cIted.
Kanga v The Crown in Right of Ontario (Ministry of Health) 1986 PSGB (P/0003/85)
(Simmons, Emnck, Jackson) Tighe v The Crown in Right of Ontario (Ministry of the
Solicitor General & Correctional Services) 1985 PSGB (P/0008/95 P/0009/95) Re air
Canada and Canadian Air Line Employees Assoc (1975),8 L.A.C (2d) P 239 (Brandt)
Re R. J Simpson Manufacturing Co (Canada) Ltd and United Automobile Workers
Local 1738 (1976) 11 L.A.C (2d) 145 (Hinnegan); Re Hershey Canada Inc and Retail,
Wholesale & Department Store Union, Us. WA. Local 461 (1995) 51 L.A.C (4th) 200
(Kates) OPSEU (A. Fitzgerald) v The Crown in Right of Ontario (Ministlyof
Correctional Services) (1988), GSB (269/88) (PIcher Hennessy Montrose) OPSEU v The
CroYf,n in Right of Ontario (Ministry of Community & Social Services) (1990), GSB
(2188/87) (KIrkwood, Klym, Clark); OPSEU (Cottrell) v The CroYf,n in Right of Ontario
(Ministry of Community & Social Services) (1988) GSB (2188/87), (Wilson, Thomson,
O'Toole) Re TRW Canada Ltd Thompson Products division and Thompson Products
Employees Association (1992) 31 L.A.C (4th) P 203 (Rose) Re MapleYf,ood Nursing
Home Ltd Tilsonburg (Maple Manor) and London & District Service Workers Union,
10
Local 220) (1989), 9 L.A.C (4th) P 115 (Hunter) Re United Steehwrkers, Local 2766 &
Canadian Mead-Morrison division of United Steel Corp Ltd (1956) 7 L.A.C P 175
(Fuller Park, Dillon); Re Northumberland Co-operative Ltd and United Food &
Commercial Workers, Local1288P (1994),42 L.A.C (4th) P 69 (CollIer) Farber v
Royal Trust Co [1997] 1 S C.R. 846 (S C C ), Lamer CJ La Forest, L'Heureux-Dube,
Sopmka and GonthIer JJ); Cox v Royal Trust Corp of Canada, [1989] 0 J No 675
(S CO), (Brooke, Krever Carthy HA.) Pathak v Jannock Steel Fabricating Co
[1999], A.J No 19 (Alberta c.A.) (Hethenngton, Berger and Sulatycky HA.); Johnston v
Household Financial COlp [1997] OJ No 2358 (Ont. CJ), Macdonald 1) Ally v
Institute of Chartered Accountants of Ontario [1992] 0 J No 940 (Ont. CJ) (Conant)
Re St. Paul s Hospital and Registered Nurses Association of British Columbia (1980), 28
(L.A.C ) (2d) P 51 (Vickers, Leibik, Waldron); Re Metropolitan Stores (M. T s.) Ltd and
Retail, Wholesale and Department Store Union, Local 1065 (1979), 22 L.A.C (2d) P 186
(Yeoman, Watson, Petne)
Counsel for the Employer argued that the case was a classIfication matter She stated
that thIS was so because the remedy regardless of how It was framed, would be promotIon to
the AM21 posItIon for the Gnevors. Counsel admItted that some Job dutIes were taken from
the Gnevors by the reorganIzation, but submItted that regardless of how the change affected the
Job duties, It was a classIfication matter She also argued that organIzational change for the
purpose of savIllg money was a legItimate management functIOn, and demed that the career
paths of the AM20 managers were affected. Her posItIon was that promotional opportumtIes
11
continued to eXIst, as AM20 managers could apply for SMG 1 posItIons and many others. In
the alternative, Counsel for the Employer submItted that the Employer dId not breach the terms
of employment of the Gnevors, and argued that under the Mimstry guIdehnes It was entitled to
change the work of the employees. In her VIew an allegation of bad faIth would fail If no
discnmIllatIon eXisted, If all relevant facts had been consIdered by the decIsIon maker and the
matter was a legitimate exerCIse of admIllIstratIve discretionary power Counsel submItted that If
thIS test was apphed to the Issues III thIS case, an allegation of bad faIth would be reJected, as
Mr Lawne had consIdered all of the facts, and dId not act III an arbItrary or capncIOUS way III
amvIllg at ills deCIsIon to reorganIze the work. In support of her posItion, Counsel for the
Employer cIted. o.p SE. U (Palmer et al) and The Crown in Right of Ontario (Ministry of
Revenue) G SB 2017/86 (1991) S Kranyak and The Crown in Right of Ontario (Mill. of
Skills and Development) P S G.B P/0003/91 (1992) o.p SE. U (Aitken et al.) and The
CroYf,n in Right of Ontario (Mimstry of Health) G S.B 678/87 (1993) Ontario Public
Service Employees Union v the Queen in Right of Ontario et al. (1992) 40 O.R. (2d) 142
Ontario Public Service Employees Union v The Crown in Right of Ontario (Ministry of
Community and Social Services) S C 0 607/85 (unreported) O.P S.E U (S Rosamond)
and The Crown in Right of Ontario (MinistlY of Citizenship Culture and Recreation)
G S.B 2086/96 (1998) H Herbrand and The Crown in Right of Ontario (Ministry of
Transportation) P S G.B P/0014/94 (1996) Marrison et al. and The Crown in Right of
Ontario (Ministry of Correctional Services) P S G.B P/0004/88 (1988) L. Hollister and
The Crown in Right of Ontario (Mimstry of Finance) P/0002/93 (1995); R. D Smalley and
The Crown in Right of Ontario (Ministry of Correctional Services) P S G.B P/0013/85
12
(1986) A. McConnell et al. and The Crown in Right of Ontario (Ministlyof
Transportation) P S GB P/005/93 (1998) OP SE. U (Shaw) and The Crown in Right of
Ontario (Ministry of Community and Social Services) S G.B 410/88 OP SE. U
(Giannon) and The Crown in Right of Ontario (Management Board Secretanat) G S.B
570/96 (1997)
J Handlarski and The Crown in Right of Ontario (Ministry of Finance) P S GB
P/0027/92 OP SE. U (Garrison) and The Crown in Right of Ontario (MinistlY of
Transportation) G S.B 1229/94 (1995) G Bertolo E. Tighe and The Crown in Right of
Ontario (MinistlY of the Solicitor General & Correctional Services) PSGB P/0008/95 M
Amirault and The Crown in Right of Ontario (Ministry of the Solicitor General &
Correctional Services) PSGB P/0028/94 Lesiuk v British Columbia Forest Productions
Ltd (1986) 33 D.L.R. (4th) 1 Reber v Lloyds Bank International Canada (1985) 18
DLR. (4th) 122, Longman v Federal Business Development Bank (1982) 131 D.L.R. (3d)
533 OPSEU (Selzer) and The Crown in Right of Ontario (Ministry of Health) GSB
1928/89' OPSEU (Bousquet) and The Crown in Right of Ontario (MinistlY of Natural
Resources) GSB 543/90' OPSEU (Shaw) and The Crown in Right of Ontario (Ministry of
Community and Social Services) GSB 410/88 OPSEU (Mistly) and The Crown in Right
of Ontario (Ontario Human Rights Commission) GSB 0569/96
xxxxxxxxxxxxxxxxxxx
13
The pnmary Issue before thIS Board concerns the JUlsdictIon of thIs tribunal to deal With
a case that concerns the establIshment of a new posItion to do a part of the work of a lower
classIfication posItion. Until Just pnor to the fihng of the gnevances III thIs case, the AM20
Group Managers had supervIsed both F04 and F05 bargaIllIllg umt audItors, presumably
WIthout dIfficulty The negotiated salary Illcreases for F04 and F05 audItors III the 1999
collectIve agreement between the government and O.P S.E.U however created a salary
compreSSIOn sItuation where the salary schedule for F05 (now TA5) audItors overlapped and
exceeded the salary scale for AM20 Group Managers.
According to the eVIdence, the AssIstant Deputy Mimster responsible for the AM20
Group Managers reorganIzed the work of the (now) TA4 and TA5 audItors and the AM20
Group Managers through the creation of a new posItion of AM2l a managenal classIficatIon
that would supervIse larger audits, leavIllg the AM20 managers With the smaller audits that
would be performed by TA4 auditors. The purpose of these changes was essentIally to avoId
raISIllg the salary scales of all of the AM20 Group Managers.
These changes IllstItuted by the AssIstant Deputy Mimster had a senous effect on the
Gnevors. They would no longer be mvolved With the larger audits, nor would they be III a
supervIsory posItion With respect to TA5 audItors. The formerly clear career path of audItors
was altered sIgmficantly and an unworkable career path was created m ItS place As one
wItness described It, a TA4 would progress to management as an AM20 then be oblIged to
move back to a bargaImng umt TA5 posItion (an unlikely possibihty given the collectIve
agreement) then, when expenence was gaIlled With large corporate audits, move up to an
AM2l posItIon III management. As he described the new sItuation, he would be obhged to go
14
back to the bargaIllIllg umt to work wIth people he had supervIsed. He also noted that he had
never heard of a sItuatIon where a manager had to go back to the bargaImng umt III order to be
promoted.
In practical terms, under the new orgamzatIon, no TA4 would see an AM20
management posItion as a partIcularly attractIve career move In future, a TA4 would likely by-
pass the AM20 management promotIOn, move to TA5 and then to the AM21 posItion. In
effect, the change may largely Isolate the AM20 and render It a posItion With hmIted career
opportumtIes, partIcularly If an AM20 Wished to remaIn III the Tax Revenue DIvIsIon.
The unrefuted eVIdence ofMr ChOI was that the Jobs had not changed. His unrefuted
eVIdence was also that the arbItrary dollar divIsIon between large and small audIts was
unrealIstic, because the proper cntena should be complexIty rather than sIze, as some large
dollar audits were relatively sImple to perform, while some smaller audits were exceedingly
complex.
From the eVIdence, the changes IllstItuted would appear to make very httle practical
sense III an organIzational settIng, and have clearly had a senous effect on employee morale It
IS difficult to find any busIlless efficIency Justification for the change, and given the eVIdence, thIs
Board IS prepared to accept the submIssIon that the decIsIOn was made for the sole purpose of
aVOIding the mcreased cost of raISIllg the salanes of AM20 Group Managers.
These Issues raIse a number of questions WIth respect to tills Board's JunsdictIOn. Does
a bad busIlless decIsIon constitute bad faIth? Or does the lack of a full understandIllg by a
decIsIOn maker of how work IS performed make the decIsIon one of bad faIth? AddItionally
15
under what CIrcumstances should the Pubhc ServIce Gnevance Board assume JunsdictIon m a
workIllg conditions sItuation that IS essentially a classIfication matter WIth respect to remedy?
On the question of whether thIs Board may assume JunsdIctIon on a WorkIllg conditions
or employment Issue that IS essentially a classIfication matter, the Gnevors must estabhsh that the
Employer acted III bad faIth, or III an arbItrary or disCrImmatory maImer
From the eVIdence, the AssIstant Deputy Mimster did not fully understand the
relatIonsillp between TA4 and TA5 auditors on team audIts, nor did he reahze that AM21
managers were responsible for TA4's assIgned to theIr audits. Nor was he III ills eVIdence able
to establIsh a clear operatIOnal reason for the changes he made m the reorgamzatIon of the work
and ItS supervIsIon. His efforts were apparently motivated by a desIre to avoId a npple effect III
salary Illcreases, and ills decIsIon was made on what would appear to be a less than clear
understanding of how the work was performed. However III spIte of the flaws and errors III ills
decIsIon makIllg, there IS no clear eVIdence to suggest that he made ills decIsIon III a malIcIous or
arbItrary manner
While all of the eVIdence raIses questions about the appropnateness of the decIsIon, It
does not, III the opImon of tills Board constitute eVIdence of bad faIth on the part of the
AssIstant Deputy Mimster The sItuation created by ills decIsIOn reqUIres correctIOn, but that IS
a matter for the Employer to address.
In Bertolo Tighe and The CrolJ, n in Right of Ontario P S GB P/0009/95 the PublIc
ServIce Gnevance Board concluded that 'workmg conditions and terms of employment' should
be given a broad and liberal mterpretatIon, but noted that: "absent eVIdence of bad faIth,
disCrImIllatIon or arbItranness, there must be eVIdence of some breach of the Pubhc ServIce
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Act, the RegulatIOns, a Management PolIcy DIrective or past practice, or some eVIdence that
the Gnevors had been treated IlleqUItably before a Board can find that the gnevances should be
allowed."
The Employer clearly has the nght to make Job changes, provIded that the change are
made m good faIth, and meet the standards set down m thIS test. In the present case, there IS a
great deal of eVIdence that would pOIllt to a poor admIllIstratIve decIsIOn, but there IS no clear
eVIdence of dIscnmIllatIOn, arbItranness, bad faIth or a breach of the Pubhc ServIce Act or the
Regulations. On thIs basIs then, thIs Board must accordingly dechne JunsdIctIon to hear the
matter and the gnevances are therefore dIsmIssed.
Dated at Toronto, thIS 2nd day of October 2000
~
.........
John A. Willes, Q C Vice-Chair
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