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HomeMy WebLinkAbout2000-0319.Leung et al.01-07-26.Decision ~~~ o~~o EA1PLOYES DE LA cOURONNE _Wi iii~~~i~T DE L 'ONTARIO COMMISSION DE REGLEMENT "IIIl__1I'" BOARD DES GRIEFS Ontario 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE. (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILE/TELECOPIE. (416) 326-1396 GSB#0319/00 0388/00 UNION# OOB 194 00B206 00B207 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Leunge et ai, GUIllermo/Chen) Grievor -and- The Crown In RIght of Ontano (Mimstry of Finance) Employer BEFORE RandI H. Abramsky Vice-Chair FOR THE GRIEVOR Don MartIn Gnevance Officer Ontano PublIc ServIce Employees Umon FOR THE EMPLOYER Mary Pat Moore Counsel, Legal ServIces Branch Management Board Secretanat HEARING December 11 2000 January 22, 2001 March 26 2001 May 1 2001 May 2, 2001 May 28 2001 June 11 2001 AWARD ThIS case Involves a group gnevance filed by twelve CorporatIOns Tax AudItorS In the Mimstry of FInance challengIng the delay and subsequent cancellatIOn of a January 1999 Job competItIOn for seventeen (17) Semor CorporatIOn Tax AudItor posItIOns SpecIfically the gnevance alleges, In pertInent part, as follows Based on the postIng from "Employment Opportumtles" dated February 22, 2000 re Semor CorporatIOn Tax AudItor I hereby submIt my gnevance wIth respect to the cancellatIOn of the competItIOn for Semor CorporatIOn Tax AudItor [dated January 9 1999] My gnevance IS based on ARTICLE 6 and applIcable ArtIcles of the collectIve agreement, WIth respect to "PostIngs and FillIng of vacanCIes or new posItIOns" The foundatIOn for the above gnevance IS - Management has not provIded myself or others any explanatIOn as to why they delayed the competItIOn and the subsequent cancellatIOn of the competItIOn. - The Mimstry of FInance clearly IndIcates In theIr letter dated December 21 1999 they Intend to re-advertlse for the same posItIOns In the near future See attached copy of the re-advertlsement made In regards to the new competItIOn, It IS eVIdent there has been no changes In the qualIficatIOns reqUIred. - The fact IS the knowledge and expenence reqUIred for a Tax AudItor Level 5 IS IdentIcal to the prevIOUS posItIOn referred to as FInanCIal Officer Level 5 - It appears that thIS process has been orchestrated to accommodate management's desIre to fill the posItIOns WIth IndIVIduals who dId not prevIOusly apply to the March [SIC] 1999 competItIOn. ThIS clearly shows that management Intends to dISCnmInate agaInst myself an others who had competed In the last competItIOn held In March [SIC] of 1999 - Due to the delay and subsequent re-advertlsement, I have expenenced both anxIety and stress, WhICh has produced an unhealthy workIng envIronment, both for myself and my colleagues 2 The "settlement desIred" IS "to have management contInue wIth the prevIOUS competItIOn as there was no JustIficatIOn for ItS cancellatIOn." The February 2000 competItIOn proceeded and there were ten successful applIcants Those Incumbents were advIsed of thIS proceedIng. Some attended the heanng but none decIded to partIcIpate Facts On January 9 1999 the Mimstry of Finance posted for seventeen "Semor CorporatIOn Tax AudItor" posItIOns In the classIficatIOn of FinancIal Officer 5 (atYPIcal) (hereInafter "F05") The posItIOns were to be In London (4 posItIOns) North York (7 posItIOns) Misslssauga (1 posItIOn) and Oshawa (7 posItIOns) The cloSIng date of the postIng was January 29 1999 ThIS postIng was part of the second phase of the "Tax Integnty Program" ("TIP- 2") desIgned to Increase the complement of audItors to ensure corporate tax enforcement and complIance The TIP ImtIatlve began In the Fall of 1998 wIth an Imtlal round of new hmng. The postIng In January 1999 was part of the second phase of hmng. In all, the Mimstry was seekIng to hIre approxImately 500 employees under the TIP program. As a result, at the same tIme as the postIng for the Semor CorporatIOn Tax AudItorS, the Mimstry also posted for many other Jobs, IncludIng 86 CorporatIOn Tax Field AudItorS at the FInanCIal Officer 4 (atYPIcal) level, 42 Semor Field AudItorS at the FInancial Officer 3 4(atYPlcal) level, 160 FIeld AudItorS, FinancIal Officer 2 (atYPIcal) level as well as a number of managers One hundred forty (140) applIcatIOns were receIved for the Semor CorporatIOns Tax AudItor F05 posItIOns All of the gnevors applIed before the January 29 1999 deadlIne SometIme thereafter 39 of the applIcants were advIsed that there would be a wntten exam on March 1 1999 WhICh "wIll be used to screen out candIdates to a manageable number for IntervIew purposes" These applIcants were advIsed that "[t]he IntervIews wIll be scheduled later In March, probably the week of March 22-26" and that the IntervIew board would consIst of three Group Managers at the AM-20 level The same group of managers had performed the Imtlal screemng of the applIcatIOns One of the gnevors, Steven Pestell, testIfied that he studIed extensIvely on hIS own tIme for thIS exam and then took the exam of March 1 1999 He was not advIsed of the test results RIchard Gruchala, DIrector of the CorporatIOns Tax Branch, testIfied that the test was marked In March and that eleven applIcants successfully passed the test but no one was IntervIewed. The partIes agreed that there were qualIfied applIcants for the posted posItIOns 1 The Anderson et al. Decision DIrector Gruchala testIfied that a number of Intervemng events led the Mimstry to postpone the F05 competItIOn. The first was that on March 2, 1999 the day after the 4 F05 wntten exam, GSB Vice-Chair Dlssanayake Issued hIS deCISIOn In OPSEU (Anderson et al.) and Ministry of Finance GSB No 1677/93 That case Involved a group gnevance by mne IndIVIduals concermng an F05 competItIOn held In mld-1993 The Board ruled that the competItIOn process was flawed. The Board concluded at p 32 as follows It follows from the foregoIng that the competItIOn process was sIgmficantly flawed. No personnel files were revIewed. Reference checks were done only for the successful candIdates, and even that, only as a matter of confirmatIOn. Thus the panel members depnved themselves of valuable InformatIOn that was avaIlable from these sources In addItIOn, no obJectIve assessment of the candIdates' relatIve equalIty was undertaken. Due to the manner In WhICh the test and IntervIew were structured and marked, a sIgmficant element of subJectIve assessment was Involved. Consldenng that some candIdates' work performance was well known to the panel members, and consldenng the absence of any InfOrmatIOn from personnel files and supervIsors' reference checks, the subJectIve decIsIOn-makIng IS lIkely to have favoured some candIdates Indeed, the eVIdence strongly suggests that the panel took Into account lIttle else besIdes the marks denved through thIS defectIve process The Board concluded that as a result of the flaws, the "employer dId not properly assess the candIdates' qualIficatIOns and abIlIty In complIance wIth the collectIve agreement." It ordered the partIes to "meet and attempt to agree upon an acceptable remedy at the earlIest possIble date" If no agreement was reached wIthIn 60 days, the Board would receIve further submIssIOns on the Issue of remedy DIrector Gruchala testIfied that the Anderson decIsIOn led the Mimstry to put the F05 competItIOn on hold. He testIfied that It "created uncertaInty for us" not only In lIght of ItS findIngs about the competItIOn process but also because of the order to work 5 out a remedy The Mimstry dId not know If such a remedy would Impact the number of F05 posItIOns avaIlable In mId-June 1999 the Umon and the Employer reached an agreement on the remedy In the Anderson case Although the terms of that agreement are confidentIal, the partIes agreed that It reduced the number of F05 posItIOns avaIlable In the Misslssauga and Oshawa offices As to the flaws In the competItIOn process IdentIfied by the Board In Anderson the eVIdence showed that the Mimstry In late November to early December 1999 hIred a consultant to reVIse the competItIOn process DIrector Gruchala acknowledged on cross- eXamInatIOn, however that the Mimstry could have corrected the flaws IdentIfied In at an earlIer date Personnel files could have been revIewed, references could have been checked and the subJectIvIty concerns IdentIfied by the Board could have been corrected. 2. The New Class Series for Tax Auditors In March 1999 a second Intervemng development occurred, specIfically the advent of a new class senes for Tax AudItorS wIthIn the Mimstry of FInance The new collectIve agreement, WhIch was sIgned on March 18 1999 contaInS a letter of understandIng regardIng "certaIn classIficatIOn adJustments" to the Tax AudItorS wIth new salary ranges for each posItIOn. 6 The letter of understandIng states that these adJustments "reflect adJustments to address skIlls shortages as contemplated by SectIOn 8(1)(e) of the Pay Equity Act" and provIdes, In pertInent part, as follows Tax Auditors The Employer shall develop a new Tax AudItor senes and class standards for the posItIOns of Tax AudItorS In the Mimstry of Finance (currently they are In the FInanCIal Officer senes, except for 4 employees In the Tax AudItor senes, level 3) The new ranges shall have the folloWIng mlmma and maXIma. Min. Max % Incr over FO 1-5 Tax AudItor 1 37 595 43,313 517 Tax AudItor 2 41 900 48,314 213 Tax AudItor 3 47457 55 919 690 Tax AudItor 4 51 910 62,565 664 Tax AudItor 5 58,318 70 515 11 19 Steps wIll move by same percentages, and employees wIll remaIn at theIr current step The 1999 general wage Increase wIll be applIed to the above ranges The exact tImIng of thIS IS a bIt unclear The letter of understandIng IS dated June 25 1999 but the creatIOn of the new class senes and salanes was clearly known much earlIer and was the subJect of much dIscussIOn and concern, notably among the AM-20 Group Managers and management. ThIS IS because the new salary levels for the T A5 posItIOn created a salary InVerSIOn Issue In relatIOn to the AM-20s The AM-20 Group Managers, who had supervIsed the F05s, were now beIng paid less than the TA5s 7 On Apnl 13 1999 In order to deal wIth thIS sItuatIOn, the DIrectors In the CorporatIOns Tax Branch proposed a restructunng of the field audIt sectIOn. Under theIr proposal, a new AM-21 management posItIOn, Semor Group Manager CT FIeld AudIt, would be created and would supervIse the TA-Ss The AM-20 Group Managers would generally supervIse the T A4s ThIS restructunng proposal was approved by AssIstant Deputy Mimster Roy Lawne on Apnl21 1999 Not surpnsIngly thIS restructunng dId not SIt well wIth the AM-20 Managers Nine AM-21 posItIOns were created and there were twenty AM-20 Group Managers The Group Managers also obJected to the changes In the reportIng relatIOnshIps SInce the TASs would no longer report to them, only the TA4s would report to them WhICh they vIewed as a negatIve change In theIr status and responsIbIlItIes Histoncally Group Managers had been promoted from the ranks of the FOSs and the FOSs had been promoted from the ranks of the F04s ThIS was the natural progressIOn - F04 FOS Group Manager and the Group Manager would supervIse both FOSs and F04s The combIned effect of the new Tax AudItor salanes and the proposed restructunng left the AM-20s at a lower salary level than the TASs and supervISIng only the TA4s On June 4 1999 the Group Managers filed a gnevance protestIng the Mimstry's restructunng and theIr compensatIOn relatIve to the TASs The gnevors sought to have the competItIOns for the AM-21 posItIOns deferred pendIng the resolutIOn of the 8 gnevance, or In the alternatIve, suggested that all unsuccessful candIdates should be offered posItIOns as semor field audItors (TASs) wIthout competItIOn. On August S 1999 Deputy Mimster Bryne Purchase responded to the Group Managers' gnevance He determIned that "management had the nght to restructure the way field audIts are conducted wIthIn the CorporatIOns Tax Branch, IncludIng the defimtIOn of the responsIbIlItIes of managers, the assIgnment of staff to managers and the dlstnbutIOn of work to audIt groups" He also found that there was no oblIgatIOn to compensate managers at a level hIgher than the hIghest paid bargaInIng umt employee In theIr orgamzatIOn. He concluded as follows I have decIded, therefore, that the ImplementatIOn of the new reportIng structure and the relatIOnshIps should contInue and that competItIOns for the posItIOns of semor group manager should proceed. Any group manager who IS not successful In that competItIOn should be consIdered In competItIOns for semor field audItor posItIOns However because of the terms of the CollectIve Agreement, competItIOns for these bargaInIng umt posItIOns cannot be waived. Your gnevance IS therefore demed. The Managers appealed the Deputy Mimster's decIsIOn to the PublIc ServIce Gnevance Board. On October 2, 2000 Vice-Chair John Willes declIned JunsdlctIOn and dIsmIssed the gnevance The decIsIOn IS currently under JudIcIal reVIew DIrector Gruchala testIfied that the creatIOn of a new class senes was undertaken because the Mimstry dunng the first phase of the TIP program In 1998 could not recruIt enough qualIfied personnel at the eXIstIng salary levels Under the agreement, Incumbents In the FInanCIal Officer senes were "rolled over" Into the new Tax AudItor 9 senes at the same level In other words, an FOS became a T AS an F04 became a T A4 and so forth. DIrector Gruchala testIfied, on cross-eXamInatIOn, that there was no formal traInIng for the FOSs, as a group regardIng theIr responsIbIlItIes as a TAS He testIfied that traInIng was left wIth the local managers to assess skIll levels In regard to team leadershIp and to address any shortfalls The partIes dIspute whether In fact, the T AS posItIOn dIffers from the FOS one DIrector Gruchala testIfied that the TAS posItIOn Involves team leadershIp responsibIlItIes that were not reqUIred of the FOSs He testIfied that TASs are reqUIred to lead a team of F04 audItors In the field, as opposed to reVIeWIng F04 audIts In the office before paSSIng them on to the Group Managers, and that there IS a "much enhanced emphasIs on leadIng an audIt team" - determInIng the work to be done, schedulIng the work and momtonng the work. He stated that whIle the FOS posItIOn specIficatIOn states that SO% of the work Involves "lead [ingJ a team of audItors" In fact that was rarely done He testIfied that the SO% number was a "dramatIc overstatement of the percentage regardIng leadIng teams of audItors" Instead, It was "very Infrequently" done He summed up the dIfference by statIng that whIle both posItIOns Involved team leadershIp for the FOS that Involved reVIeWIng the work of the F04s In the office and was pnmanly a consultatIve role whereas the TA S Involves hands-on leadIng a team In the field. The Apnl 13 1999 proposed restructunng of the CorporatIOns Tax field audIt sectIOn developed by the dIrectors, and approved by AssIstant Depurate Mimstry Lawne, amplIfies thIS change The proposal states, In pertInent part 10 The FOS level posItIOn specIficatIOn currently Includes team leadershIp responsIbIlItIes WhICh, accordIng to advIce from Human Resources Branch, must be retaIned. Due to the change In reportIng structure for these staff, exerCIse of thIS responsIbIlIty wIll, of necessIty take on a dIfferent form The proposal IS to Increase the use of T A4 Field AudItorS under the dIrectIOn of the TASs, especIally In the field, In the completIOn of audIt files where the TAS takes the lead on an audIt and has one or more TA4s workIng wIth hIm/her ThIS would become the pnme manner In WhICh the TASs would exerCIse theIr team leadershIp roles ExerCIse of team leadershIp dutIes In thIS partIcular manner has been an Infrequent occurrence In practIce amongst all the CT field audIt offices to date The TASs would cease to undertake techmcal reVIews of all of the completed TA4 files, as they currently do AM20 managers, In conJunctIOn wIth theIr local SMG 1 could, however agree to have a small percentage ofTA4 files submItted to TASs for techmcal reVIew as deemed appropnate or as CIrcumstances warrant. For day-to-day techmcal advIce the AM20 manager would be the TA4's first contact pOInt. The TASs would also have responsIbIlIty for provIdIng traInIng to new and eXIstIng staff The Umon dId not refute DIrector Gruchala's testImony about the dIfferent role of the TAS and no contrary eVIdence was offered. Instead, the Umon relIed on the content of the posItIOn specIficatIOn for the FOS and that of the T AS The FOS posItIOn specIficatIOn clearly states that SO% of the Job Involves "lead [ing] a team of AudItorS" In the field, IncludIng "asslst[ing] audItors In determInIng the scope of audIt coverage, and specIfic audIt techmques to be applIed" "gIVIng advIce to the audItors on hIs/her team as to any work to be performed, where reqUIred "reVIeWIng workIng papers prepared by the audItors on hIs/her team to ensure proper audIt coverage" and "orgamzIng, dIrectIng, controllIng and coordInatIng audIt staff" All of these are the type of dutIes reqUIred of a TAS 11 A close companson of the remaInder of the FOS posItIOn specIficatIOn and the T AS posItIOn specIficatIOn reveals a sImIlar IdentIty of other dutIes and responsIbIlItIes Each duty and responsIbIlIty lIsted under the TAS posItIOn specIficatIOn appears In substance If not exact wordIng, In the FOS posItIOn specIficatIOn. The skIlls and knowledge reqUIred of an FOS and T AS as set forth on the posItIOn specIficatIOns, IS also substantIally sImIlar Both reqUIre a thorough knowledge of accountIng pnnclples and audItIng techmques acqUIred through completIOn of the CA, CGA or CHA program, a thorough knowledge of the CorporatIOns Tax Act, Income Tax Act (Canada) and Mimng Act; effectIve commumcatIOn skIlls, good Judgement, tact and dIscretIOn to deal wIth taxpayers and theIr representatIves whIle performIng on-sIte audIts the abIlIty to lead a team of audItors and work effectIvely as part of the team, the abIlIty to traIn and provIde gUIdance to Jumor audItors AgaIn, whIle worded dIfferently the skIlls and knowledge reqUIred are essentIally the same The mInutes of the August 1999 Local Employee RelatIOns CommIttee (LERC) for North York dISCUSS the Impact of the new orgamzatIOnal structure The mInutes, In pertInent part, state as follows 2.3 Organizational Structure with the new AM21 position. The Umon wanted to know what the change In orgamzatIOn wIll be once the AM21's are hIred. Management IndIcated that the FOS's wIll report dIrectly to an AM21 or an SMG 1 The FOS's wIll stIll be In a team leadIng capacIty 12 The eVIdence showed that the "F05 SelectIOn Cntena" dIffered from the cntena establIshed for the TA5 competItIOn. The F05 SelectIOn Cntena" mcluded the followmg AudItmg Knowledge and Expenence 25% Tax Knowledge and Expenence 20% Accountmg Knowledge and Expenence 20% Research! AnalysIs/Problem Solvmg SkIlls 5% CommumcatIOn and Interpersonal SkIlls 18% Planmng and OrgamzatIOnal SkIlls 10% Computer Knowledge and Expenence 2% The TA5 competItIOn cntena, whIch was developed m December 1999 were as follows 1 Accounting/Auditing Competence 35% -Expert knowledge of accountmg/audItmg theory standards and practIces -Workmg knowledge ofmmIstry and branch polIcIes and procedures -AbIlIty to obtam, analyze, venfy and evaluate complex financIal mformatIOn. 2. Tax Legislation Knowledge 30% -Workmg knowledge of tax legIslatIOn & regulatIOns (Ontano Corp Tax Act, Mimng Tax Act, Income Tax Act) -AbIlIty to research/analyze tax legIslatIOn and Junsprudence to support audIt conclusIOns -Workmg knowledge ofmmIstry and branch polIcIes and procedures 3 Team Leadership Capability 20% -AbIlIty to plan, orgamze and coordmate actIvItIes of audIt teams accordmg to establIshed procedures and deadlInes 13 -AbIlIty to momtor/revIew the work of audIt team members and provIde gUIdance and coachmg to mdIvIduals as reqUIred. 4 Interpersonal & Communication Skills 15% -AbIlIty to commumcate clearly and clanfy techmcal and non-techmcal mformatIOn to taxpayers, representatIves and mternal mImstry staff -AbIlIty to effectIvely manager mterpersonal relatIOnshIps to ensure posItIve outcomes DIrector Gruchala testIfied, on re-exammatIOn, that he was concerned that If the mtervIew dId not encompass team leadershIp skIlls then the competItIOn would be flawed. On cross-exammatIOn, he stated that he was also concerned that the mtervIewmg panel for the F05 competItIOn, whIch consIsted of three AM-20 Group Managers, mIght be bIased because of the salary mverSIOn problem and the proposed restructunng DIrector Gruchala testIfied that the dIrectors wIthm the CorporatIOns Tax branch dIscussed thIS problem m Apnl 1999 but he could not recall whether thIS Issue was conveyed to AssIstant Deputy Mimstry Rob Lawne who made the decIsIOn to cancel the competItIOn. He testIfied that he "may have" but he could not specIfically recollect. The dIrectors dIscussed the possIbIlIty of changmg the mtervIew panel but were concerned that changmg the panel mId-stream would constItute a flaw m the competItIOn process He was not aware of any GSB cases that held that changmg the composItIOn of the mtervIew panel would constItute a flaw At thIS tIme, Apnl 1999 none of the mtervIews had taken place and the managers on the mtervIew panel, along wIth all the other AM-20 managers, dId not yet know how the restructunng Issues would eventually be resolved. 3 Regional Boundaries Review and Allocation of Tax Files Within the Corporations Tax Branch. 14 Accordmg to DIrector Gruchala, a thIrd mtervemng Issue arose m the Spnng of 1999 In Apnl 1999 a proposal was ImtIated wIthm the Mimstry to establIsh new regIOnal boundanes to facIlItate "one-stop shoppmg" for taxpayers Instead of havmg each statute branch have Its own method of sortmg taxpayers/accounts between the vanous RegIOnal Tax Offices, DIstnct Offices and head office, the goal of the regIOnal boundanes project was to establIsh common boundanes for all tax statutes - retaIl sales tax, employer health tax, corporatIOns tax and collectIOns In thIS way a taxpayer would contact the same office for tax mformatIOn, audIt dIscussIOns and collectIOn actIvIty regardless of the tax statute at Issue The results of thIS ImtIatIve, accordmg to DIrector Gruchala, would Impact the resource allocatIOn, i.e manpower needs, of the vanous RegIOnal Tax Offices It would Impact the number of TA5s needed m each locatIOn. DIrector Gruchala testIfied that thIS project further put the TA5 competItIOn mto a state of uncertamty because the Mimstry was no longer sure where It would wmd up needmg employees On cross-exammatIOn, DIrector Gruchala acknowledged that whIle thIS ImtIatIve would Impact the locatIOn of staff, It dId not Impact the number of staff needed to do the work overall He stated that the staff complement has remamed relatIvely constant. Further although the proposal was approved dunng the Summer of 1999 ItS ImplementatIOn was not fully completed m late 1999 when the F05 competItIOn was 15 cancelled, nor was It completed m February 2000 when the TA5 posItIOns were posted. In fact, ImplementatIOn was stIll not ongomg m 2001 At around the same tIme m Apnl 1999 a reVIew was undertaken wIthm the CorporatIOns Tax Branch to determme how to allocate the CorporatIOns Tax taxroll m lIght of the creatIOn of two new RegIOnal Tax Offices m London and Ottawa, the hmng of the TIP-2 staff, and the restructunng of field audIt umts due to the reclassIficatIOn of the tax audItor senes The final recommendatIOns on thIS Issue were submItted on October 9 1999 The report recommended some redIstnbutIOn of audIt staff between offices, mcludmg the reductIOn of three F05s from the North York and Oshawa offices as well as an mcrease of two m London and four m Ottawa, but the total complement remamed the same The proposal also affected the dIstnbutIOn ofF04 staff In mId-June 1999 two days after a settlement was reached m the Anderson matter a telephone conference call was arranged to dISCUSS the status of the F05 competItIOn. Present dunng that call were AssIstant Deputy Mimster Roy Lawne, Human Resources Consultant Des KIrk, DIrector Gruchala as well as Mark GnmsdItch, DIrector of the North York RegIOnal Tax Office and Dorothy Wnght, DIrector of the MissIssauga RegIOnal Tax Office Dunng that call, It was decIded to keep the F05 competItIOn m abeyance DIrector Gruchala testIfied that the reasons for not proceedmg wIth the competItIOn mvolved the restructunng Issues, a concern that the Job ad for the F05 dId not mentIOn team leadershIp that the wntten questIOns on the March 1 1999 exammatIOn dId not dIfferentIate between the skIll set reqUIred for the F04 and F05 posItIOns, that 16 they had not IdentIfied or artIculated what makes one person sIgmficantly better SInce It was not sufficIent to be techmcally better SInce the focus had to be on team leadershIp that a gnevance on these pOInts would lIkely succeed, and that the benchmark set had not been met by any of the candIdates In Oshawa. His contemporaneous notes of the meetIng reflect those pOInts except for the Issue of restructunng. The notes are headed "RatIOnale for not proceedIng wIth current F05 competItIOns" On cross-eXamInatIOn, he stated that the headIng dId not refer to why the Mimstry should cancel the competItIOn, but only not to proceed at that tIme He testIfied that he dId not take notes of all of the dIscussIOn that day but could not recall whIch parts were not noted. The partIcIpants of the conference call also dIscussed that when the Mimstry was ready to proceed wIth the competItIOn It would be lImIted to those who had applIed In the January 1999 F05 competItIOn. DIrector Gruchala testIfied, on cross-eXamInatIOn, that the meetIng dIscussed who would be elIgIble to apply for future competItIOns but gave no further detaIls DIrector Mark GnmsdItch testIfied that It was decIded at that meetIng to contInue to hold the F05 competItIOn In abeyance and that "when we proceeded, It would only be open to those who applIed In January 1999" DIrector GnmsdItch could not recall the reason for that determInatIOn, but he was clear that the Issue was dIscussed and agreed upon. DIrector GnmsdItch testIfied that they decIded to further delay the F05 competItIOn dunng the June conference call because a number of Issues remaIned outstandIng and needed to be resolved before they could proceed. SpecIfically he 17 mentIOned the Anderson fall-out, the boundanes/resource reqUIrements and the allocatIOn of files He was not asked about the notes of the meetIng made by DIrector Gruchala and dId not mentIOn the Items that were lIsted there By early November 1999 a number of the outstandIng Issues had been resolved and DIrector GnmsdItch wanted to fill the posItIOns On November 9 1999 he wrote a memo to AssIstant Deputy Mimster Lawne concermng the "TA5 CompetItIOns" In that memo DIrector GnmsdItch sought dIrectIOn from the AssIstant Deputy Mimster regardIng how to proceed In lIght of the decIsIOn made In June 1999 that, when ready the competItIOns would proceed only wIth those who had applIed In January and the Deputy Mimster's August 5 1999 letter to the Group Managers whIch had stated that they could compete for semor field audItor posItIOns ThIS memo In full, reads as follows (emphasIs In ongInal) Roy In early summer of thIS year as part of the dIscussIOns surroundIng the creatIOn of the new Semor Manager Corp Tax (AM-21) posItIOns a conference call was held wIth you, Des KIrk, Richard Gruchala, Dorothy Wnght and myself Dunng thIS call the Issue of the TA5-Semor Corp Tax FIeld AudItor competItIOns underway at that tIme In Oshawa, MissIssauga and North York, was dIscussed. Dunng the dIscussIOns It was resolved that these competItIOns would be put In abeyance pendIng resolutIOn of such Issues as Corp Tax boundanes and resource reqUIrements In each office a reVIew of the competItIOn approach In VIew of the recent gnevance decIsIOn In Anderson et ai, and, development of a new selectIOn cntena to encompass the dutIes of the TA5 At that time it was also agreed that when we were ready to proceed the competitions would only be open to those individuals who applied for the competitions that were placed in abeyance. We have now completed our reVIew of boundanes and resource reqUIrements and determIned that we only have up to seven posItIOns avaIlable In North York and none In the other offices 18 In the Intenm, the Corp Tax Group Managers (AM-20) gnevances regardIng terms and condItIOns of employment was revIewed by ElIzabeth Patterson and the Deputy Mimster's response sent to the gnevors on August 5 1999 In hIS response the Deputy Mimster stated "I have decided, therefore, that the implementation of the new reporting structure and relationships should continue and that competitions for the positions of senior group manager should proceed. Any group manager who is not successful in that competition should be considered in competitions for senior field auditor positions. However, because of the terms of the Collective Agreement, competitions for these bargaining unit positions cannot be waived." To date we have told OPSEU that the competItIOn IS In abeyance not that we Intend to cancel It. There IS concern that If we proceed by InVItIng only the prevIOUS applIcants to reapply for the competItIOn In North York the Group Managers who were not successful In the Semor Group Manager CompetItIOn may wnte to the Deputy Mimster statIng that we have not followed through on hIS commItment. Conversely If we do open up the competItIOn to others we wIll more than lIkely receIve gnevances from the ongInal applIcants for the posItIOns complaInIng that we opened up the competItIOn to gIve them to our managers I have spoken to Des KIrk on thIS subJect and he IS of the OpInIOn that we wIll get gnevance [SIC] no matter whIch way we go He belIeves opemng It up (to Include the managers) IS defendable on the basIs that the TA5 posItIOn IS In effect a new posItIOn WIth a new selectIOn cntena and that the competItIOn whIch we cancelled had sImIlar flaws as the Anderson et al gnevance and management had to take steps to correct It. Your thoughts would be apprecIated. Mark Cc Des KIrk DIrector GnmsdItch explaIned that they were consIdenng runmng a new competItIOn and he was not sure whether the Mimstry should stay wIth the ongInal pool, as agreed to In June, or abIde by what the Deputy Mimster had said. He, personally dId 19 not have a preferred course of actIOn and made no recommendatIOn to AssIstant Deputy Mimster Lawne Instead, he outlIned the facts for Mr Lawne's consIderatIOn. He was concerned that If the competItIOn was not opened up they would get complaInts from the Group Managers as well as other audItors who had not ongInally applIed. Mr Lawne, who IS no longer wIth the Mimstry dId not testIfy at the heanng, nor dId Human Resources Consultant Des KIrk. On November 18 1999 DIrector GnmsdItch receIved an e-maIl from AssIstant Deputy Mimster Lawne regardIng the "T A5 CompetItIOns" whIch stated "FYI. Please proceed accordIngly Roy" ThIS e-maIl attached another e-maIl, dated November 17 1999 to Roy Lawne from Ed Farragher DIrector Human Resources Branch, Mimstry of FInance whIch states Roy Des has dIscussed the recommended approach wIth me and I agree wIth It. GIven the changes to the Job responsIbIlItIes and the number of opemngs now avaIlable, we can JustIfy startIng over wIth a new competItIOn. Ed Based on thIS correspondence and dIrectIOn, OPSEU was advIsed at the December 15 1999 Mimstry Employee RelatIOns CommIttee (MERC) meetIng that the F05 competItIOn had been cancelled. The mInutes of that meetIng state as follows 3 CancellatIOn of Corporate Tax F05 CompetItIOn Management advIsed that In lIght of the Anderson et al GSB Award, a reVIew of the outstandIng competItIOn for F05 Sr CorporatIOns Tax FIeld AudItors In vanous locatIOns that were advertIsed In January 1999 was 20 conducted and the competItIOns were put on hold. ThIS reVIew In addItIOn to the IntroductIOn of new Tax AudItor class standards, and the reVIew of resource reqUIrements In lIght of the regIOnal boundanes proJect, caused management to cancel the outstandIng competItIOn. Management IndIcated that a competItIOn for T A5 Sr CorporatIOns Tax FIeld AudItors In selected locatIOns would be posted In the New Year The day after the December 15 1999 MERC meetIng, DIrector GnmsdItch was asked by an OPSEU representatIve to commumcate the cancellatIOn of the competItIOn to affected staff because WaitIng for the MERC mInutes would take too long. On December 21 1999 a letter was Issued by Human Resources Consultant Des KIrk, as follows ThIS IS to advIse you that the above competItIOns have been cancelled. For your InformatIOn, It IS antIcIpated that competItIOn for Semor CorporatIOn Tax AudItors - T A5 In selected offices wIll be advertIsed In the near future Pnor to thIS, penodIcally throughout 1999 the Issue of the F05 competItIOn was dIscussed at the Local Employee RelatIOns CommIttee (LERC) In North York. The Apnl 14 1999 mInutes reflect dIscussIOn about the "F04 and F05 CompetItIOns" statIng that "Management stated that the CT F04s competItIOns are nearly completed and that reference checks are presently beIng done Management expects to hold the F05s IntervIews In the near future" The August 11 1999 meetIng of LERC also dealt wIth the F04 and F05 competItIOns The mInutes state as follows The Umon requested a status report on these competItIOns Management stated that the F04 competItIOn IS complete and It resulted In the hmng of three new staff Management also IndIcated that there are 21 currently 31 F04 vacanCIes Three of these posItIOns are DR posItIOns The next round of hmng has been delayed due to the reVIew of the class standards by the CIvIl ServIce CommIssIOn. The F05 competItIOns are on hold untIl the Issue of boundanes has been resolved. Half of the competItIOn IS complete m that the wntten portIOn of the competItIOn has been completed. The umon also raised the Issue of flaws m the pnor competItIOns Management stated that every effort IS bemg made to ensure that future competItIOns follow establIshed hmng practIces The Umon suggested that perhaps a number could be assIgned for the wntten portIOn of any competItIOn to Improve obJectIVIty The suggested that thIS number could be assIgned by the Human Resources Branch. Management mdIcated that they wIll look mto thIS Under the tOpIC "New CollectIve Agreement for Tax AudItors m MOF" the mmutes state that "the mformatIOn was submItted to the CIvIl ServIce CommIssIOn by the due date July 31 1999 All audIt competItIOns are on hold because of thIS Once the CIvIl ServIce CommIssIOn approves the new class standards management wIll have more answers" The class standards for the Tax AudItor senes were approved by the CIvIl ServIce CommIssIOn on August 13 1999 At the November 17 1999 meetmg of LERC the tOpIC of the "TA4 and TA5 CompetItIOns" was agam addressed. The mmutes state that "Management stated that the TA4 competItIOn IS ongomg and that the TA5 competItIOn IS m abeyance at the present tIme" 22 AccordIng to gnevor Steve Pestell, the Mimstry dId not officIally Inform hIm about the delay In the competItIOn or Its cancellatIOn untIl the December 21 1999 letter He stated that he dId not regularly reVIew the LERC mInutes 4 The Restructuring of the Electricity Sector DIrectors Gruchala and GnmsdItch outlIned a final reason for the delay and cancellatIOn of the F05 competItIOn at the heanng whIch Involves the restructunng of the electncIty sector The January 1999 postIng for the F05 posItIOns In North York Included three posItIOns for the audItIng of the electncIty sector whIch was slated to begIn makIng "payment In lIeu" (PIL) of taxes It was thought, at the tIme, that addItIOnal F05s would be needed In thIS area. DIrector Gruchala testIfied that dunng dIscussIOns In October 1999 an Issue about who should perform thIS work arose and he was asked to InqUIre If Canada Customs and Revenue Agency wanted to admInIster and perform thIS work. DIrector Gruchala stated that memos about thIS Issue went out In November 1999 and that he and DIrector GnmsdItch met wIth managers from Canada Customs and Revenue Agency In January 2000 In early February 2000 the federal agency decIded that It was not Interested In admInIstenng the program DIrector Gruchala testIfied that thIS uncertaInty also factored Into the delay/cancellatIOn of the F05 competItIOn sInce It made no sense to proceed when they dId not know how many posItIOns they needed to fill 5. The February 2000 Competition 23 On February 22, 2000 the Mimstry posted for "up to 9" Semor CorporatIOn Tax AudItors, TA5 In North York, seven TA5 posItIOns In London and KItchener four TA5 posItIOns In Ottawa-Carleton as well as two bIlIngual T A5 posItIOns there The competItIOn was open to "Mimstry of FInance classIfied cIvIl servants" WIthIn a 40 k area. A total of 84 applIcatIOns were receIved. A wntten test, whIch was substantIally dIfferent from the March 1 1999 wntten test, was admInIstered Twenty-seven applIcants were IntervIewed. Ten applIcants were successful Seven of the ten were former AM-20s who had prevIOusly been F05s, one was an F04 and two were from the AMAPCEO bargaInIng umt. None of the gnevors were successful Decision At Issue IS whether the Mimstry properly delayed and cancelled the January 1999 F05 (atYPIcal) competItIOn for Semor CorporatIOns Tax AudItors The Mimstry asserts that It had four "sound and practIcal" reasons to delay and then cancel the competItIOn and that It acted, at all tImes, In good faith 1 The Anderson et al decIsIOn and the resultIng settlement agreement. 2 The creatIOn of the new Tax AudItor class senes and standards, as set forth In the new collectIve agreement, and the resultIng reorgamzatIOn and change In dutIes of the Tax AudItor 5 posItIOn. 3 The Mimstry-wIde regIOnal boundanes reVIew and the reallocatIOn of tax files wIthIn the CorporatIOns Tax Branch. 4 The restructunng of the electncIty sector 24 The pertInent collectIve agreement provIsIOn IS ArtIcle 6 PostIng and FIllIng of VacanCIes or New PosItIOns The relevant provIsIOns Include the folloWIng 6 1 1 When a vacancy occurs In the ClassIfied ServIce for a bargaInIng umt posItIOn or a new classIfied posItIOn IS created In the bargaInIng umt, It shall be advertIsed for at least ten (10) workIng days pnor to the establIshed cloSIng date 62 The notIce of vacancy shall state, where applIcable, the nature and tItle of the posItIOn, salary qualIficatIOns reqUIred, and the hours of work schedule Where a posItIOn IS posted wIthIn the Ontano PublIc ServIce, the Internal notIce of vacancy shall also state the work locatIOn where the posItIOn currently eXIsts, that the posItIOn IS represented by the Umon and the partIcular bargaInIng umt whIch contaInS the posItIOn. 63 1 In fillIng a vacancy the Employer shall gIve pnmary consIderatIOn to qualIficatIOns and abIlIty to perform the reqUIred dutIes Where qualIficatIOns and abIlIty are relatIvely equal, semonty shall be the decIdIng factor The Junsprudence, both wIthIn the GSB and In the pnvate sector hold that once a posItIOn IS posted, the employer may cancel It but only In lImIted cIrcumstances In the absence of collectIve agreement language expressly permIttIng cancellatIOn, a competItIOn may be cancelled when there are "sound and practIcal" reasons to do so Based on the case law cIted by the partIes, thIS generally means that a genUIne mIstake occurred so that there IS, In fact, no vacancy' or unforeseen developments beyond the employer's control occur after the postIng, resultIng In a change In CIrcumstances such that no true vacancy eXIsts In general, there IS no oblIgatIOn to contInue when the employer actIng In good faith and wIth bona fide reasons, has had to reVIse ItS posItIOn. Brown and Beatty Canadian Labour Arbitration sets forth the basIc pnncIples at 5 2520 as follows 25 ArbItrators have also recogmzed that In certaIn CIrcumstances management may properly cancel a postIng pnor to the posItIOn or vacancy beIng filled, but not after a candIdate has been confirmed In the posItIOn. Thus, termInatIOn or wIthdrawal of a postIng has been permItted In cIrcumstances where the postIng was premature In that the expected vacancy dId not come Into beIng, or where It had been made In error Others have held that wIthdrawal of a postIng would be permIssIble If management bona fide determIned that the vacancy for whIch the postIng was made no longer eXIsted. However at least one arbItrator has expressed the VIew that except where an error has been made, or where frustratIng or unforeseen CIrcumstances have Intervened, a Job postIng could not be wIthdrawn sImply because management had changed ItS mInd. On much the same reasomng, other arbItrators have held that once the postIng procedure has been InstItuted, It must be completed through to namIng the successful candIdate ArbItrators, however tend to be "very cautIOus In permIttIng such cancellatIOns. Re ChilliJ1,ack General Hospital and British Columbia Nurses Union (1995), 47 L.AC (4th) 270 at 279 (McPhIllIp) The reason for cautIOn IS the potentIal for abuse an unlImIted dIscretIOn to cancel a competItIOn would Involve As set forth In Re Robb Engineering Division of Dominion Bridge Company Ltd and United Steel Workers, Local 4122 (1978) 20 L.AC (2d) 340 347 (MacDougall) The pnncIple that says that once a Job postIng procedure IS commenced "It must be completed through to namIng the successful candIdate" appears to make good sense on the face of It. The fact that If thIS were not so then the procedure would be open to abuse IS ObVIOUS If the candIdate who was the ObVIOUS chOIce on semonty and abIlIty for any reason, however whImsIcal, was not pleasIng to management then the procedures could be aborted. ThIS could thwart the Intent of the semonty and abIlIty provIsIOns of the collectIve agreement In a gIven sItuatIOn. The questIOn then really IS whether the employer had sufficIent cause to termInate the procedures consIdenng ItS good faith. [T]he reason or reasons for the termInatIOn must be sound and practIcal 26 In the Robb Engineering case the employer knew at the tIme of the postIng, that the work to be done was gOIng to be qUIte short-lIved and agreed to the postIng under pressure from the umon. A few days after the postIng It realIzed that a successful candIdate would work only for one day In the new posItIOn and cancelled the competItIOn. It argued that It there was no longer any practIcal reason for contInuIng wIth the competItIOn. In the arbItrator's VIew the fact that the tIme Involved was shorter than first thought "does not appear to be sufficIent reason In all the CIrcumstances hereIn to say the employer has the nght to thwart the proceedIng that It put In motIOn wIth the Job postIng." (p 348) There was no error and no changed CIrcumstances sInce the employer knew or should have known the CIrcumstances about the ShIft at the tIme of the postIng. In Marks and Ministry of Natural Resources GSB No 566/80 (Weathenll, Vice- Chair) the Board adopted, In dicta, the "sound and practIcal" busIness reason standard artIculated In Robb Engineering In that case, the employer posted for a posItIOn and the gnevor applIed before the cloSIng date Another employee, a Mr GentIle was unaware of the postIng and dId not apply The employer IntervIewed certaIn applIcants for the posItIOn even though they dId not possess the reqUIred "graduatIOn for an approved techmcal course In resource management." It also dId not IntervIew a number of candIdates who met thIS qualIficatIOn, IncludIng the gnevor The employer realIzIng the error dId not then IntervIew the gnevor or any other qualIfied applIcant. Instead, It cancelled the competItIOn and reposted the posItIOn, at whIch tIme Mr GentIle applIed. The only change In the new competItIOn was that the phrase" or an approved related dIscIplIne" was added to the qualIficatIOns, a change whIch the Board found could have 27 appeared In the postIng as ongInally Issued. The employer then cancelled thIS second competItIOn because of some concerns about the IntervIeWIng commIttee and agaIn posted for the Job In questIOn. Once agaIn, the phrase "or an approved related dIscIplIne" was omItted from the postIng. ThIS tIme, Mr GentIle won the competItIOn and the gnevor who was also determIned to be qualIfied, came In second. At Issue was whether the Mimstry properly cancelled the first competItIOn. The Board ruled at p 9 In "cancellIng" the ongInal notIce and "begInnIng agaIn" the employer has In realIty sImply extended the tIme for makIng applIcatIOns for the Job The vacancy we repeat, eXIsted at all tImes, and the qualIficatIOns set out were, for all matenal purposes, unchanged. Because of the employer's actIOns, however the tIme for makIng applIcatIOn for that Job was extended well beyond the "establIshed cloSIng date" contemplated by the collectIve agreement. The effect of thIS, of course, was to depnve the gnevor of consIderatIOn of hIS applIcatIOn together wIth those of other employees made In the same competItIOn and filed In accordance wIth the terms of the competItIOn. The Board added at p 11 Reference may also be made to the Robb Engineering case 20 L.AC (2nd) 340 (MacDougall) where the questIOn was said to be whether or not the employer had sufficIent cause, actIng In good faith, to termInate the Job postIng procedures It was said that "sound and practIcal" reasons must eXIst. The Board mIght well be InclIned to support the employer's actIOns In a case that met those cntena. In the Instance case, as we have IndIcated, there was no sufficIent reason to termInate the first competItIOn. QualIfied candIdates had applIed wIthIn the tIme lImIts, the vacancy contInued to eXIst, and the qualIficatIOns (on the basIs of the ultImate appoIntment) were (insofar as they are matenal) unchanged. It should be added, however that there IS nothIng In the eVIdence to show that the employer acted wIth delIberate bIas or sought to dISCnmInate Improperly agaInst the gnevor The "sound and practIcal" ratIOnale was followed by the GSB In OPSEU (McNally Langlois) and Ministry of Transportation GSB No 1142/90 and 1143/90 (FIsher Vice-Chair) In that case a postIng to whIch the gnevors applIed was cancelled 28 because only two qualIfied candIdates applIed. The Job was subsequently reposted and the gnevors reapplIed along wIth several new candIdates, but the gnevors were unsuccessful The Board ruled at pp 5-6 In thIS case the only reason the Employer reran the postIng was because of some vague Government polIcy whIch reqUIred at least 3 candIdates for a competItIOn. However no eVIdence was led as to whether In fact some Government polIcy actually eXIsted, ItS ratIOnale, or ItS applIcatIOn. In these cIrcumstances, we cannot find that thIS polIcy constItuted a "sound and practIcal" reason to rerun the competItIOn. In other GSB cases, the Board has examIned the reasons for the cancellatIOn of a competItIOn. In OPSEU (Magliocco) and MinistlY of Correctional Services GSB No 213/93 at p 25 (FInley Vice-Chair) the Board held that "[t]he Employer IS not restncted by the CollectIve Agreement from cancellIng a Job competItIOn, provIded that the cancellatIOn IS for bona fide reasons and the Board consIders that 'lack of fundIng' would fall wIthIn that category " SImIlarly In OPSEU (Felice) and Ministry of Correctional Services GSB No 1304/93 (Stewart, Vice-Chair), the Board determIned that the employer acted reasonably when It cancelled a competItIOn when the fundIng for the correctIOnal facIlIty for whIch the postIng was made was wIthdrawn. In contrast, In Chittle and MinistlY of the Attorney General GSB No 273/80 (Venty Vice-Chair) the Board determIned that cancellIng a restncted postIng and then repostIng It as an open one was "Improper and unreasonable" In the Board's VIew the employer's actIOns Improperly extended the posted cloSIng date In vIOlatIOn of then ArtIcle 4 1 of the collectIve agreement to the detnment of the gnevor 29 Other cases cIted by the partIes have held that a postIng may be wIthdrawn by an employer "for valId busIness reasons, provIded that It acts In good faith and IS not motIvated by an Intent to deny any applIcant the Job opportumty Re Corner Brook Pulp and Paper Ltd and c.E.P Local 60N 73 L.A C (4th) 1 (Oakley) at p 13 The Board there contInued at p 13 "When consIdenng the motIvatIOn of an employer who [wIth ] draws a postIng, arbItrators have consIdered whether or not a vacancy contInues to eXIst after the Job postIng has been wIthdrawn." Also relevant to motIvatIOn IS whether there was a "change In CIrcumstances between the date of the postIng and the date of the wIthdrawal" as well as any eVIdence that the decIsIOn was based on the perceIved qualIficatIOns of the semor applIcant. (73 LAC (4th) at p 14) In the Board's VIew '[t]he Employer must demonstrate valId busIness reasons why a new owner/operator [the posItIOn In questIOn] was not reqUIred." In that case, the Board found that there was no change In CIrcumstances It also determIned that one of the reasons for wIthdrawIng the postIng was that the employer dId not consIder the gnevor to be qualIfied for the posItIOn. AccordIngly It ruled that the cancellatIOn of the postIng vIOlated the collectIve agreement. See also Re Corporation of the City of Toronto and Canadian Union of Public Employees Local 79 (1994) 42 L.AC (4th) 411 (Abbott) Re Foothills Provincial General Hospital and Alberta Union of Provincial Employees (1999),76 L AC (4th) 371 (Moreau) A sImIlar determInatIOn was made In Re Chil!iyt,ack General Hospital and British Columbia Nurses Union, 47 LAC (4th) 270 (McPhIllIps) In that case, a postIng was cancelled after the gnevor and one other candIdate had applIed. It was then reposted 30 several months later and the gnevor lost to a more semor applIcant (who had not applIed the first tIme) He was told, at the tIme, that he was not qualIfied for the posItIOn, whIch gave "nse to very senous reservatIOns concernIng the reason for the cancellatIOn and the potentIal abuse of the postIng process to aVOId thIS employee USIng hIS semonty nghts " The Board also determIned that there were no "sound and practIcal" reasons for cancelIng the postIng. The reasons gIven for the cancellatIOn changed over tIme All of the factors relIed upon eXIsted at the tIme of the ongInal postIng. There was no eVIdence of any specIfic event between the postIng and the date of ItS cancellatIOn - no changed CIrcumstances or unforeseen developments Indeed, the Board found that the posItIOn for whIch the postIng was wIthdrawn was "not cancelled at all It was sImply delayed and filled two months later to the senous preJudIce of thIS gnevor" In Re International Chemical Workers, Local 798 and Union Gas Company of Canada, Ltd (1972) 24 L.AC 159 165 (Lysyk) the Board, relYIng on Re Us. Wand Int I Nickel Co of Canada Ltd (1965), 16 L AC 216 (Lane), held that a "gnevor has an ObVIOUS Interest In havIng hIS nghts crystallIzed under the ongInal postIng sImply because he may well lose out to more semor applIcants competIng for the same Job In the future" ApplYIng these decIsIOns to the facts In thIS case leads me to conclude that the cancellatIOn of the January 1999 postIng, although made In good faith, was Improper Without a doubt, 1999 was qUIte a year for the CorporatIOns Tax Branch In the Mimstry 31 of FInance one full of developments and changes But at the end of the day and for the reasons set forth below I conclude that a number of the F05 vacanCIes whIch eXIsted at the tIme of the January 1999 postIng contInued to eXIst, and that the changes gOIng on dunng the year dId not JustIfy cancellatIOn of the competItIOn. 1 The Anderson et al rationale. The first reason relIed on by the Mimstry for delaYIng and subsequently cancelIng the January 1999 F05 competItIOn was the Impact of the Board's decIsIOn In Anderson et al Counsel for the Employer argued that Anderson was a stunmng decIsIOn, causIng the Mimstry to re-examIne ItS competItIOn process, a process that was not completed untIl December 1999 She also argued that because the partIes were ordered to effect a settlement, It created uncertaInty about the number of vacanCIes that mIght be affected by the remedy In that case It IS clear that the Anderson et al. decIsIOn, Issued on March 2, 1999 was a legItImate reason for delaYIng the January 1999 F05 competItIOn, but It was not a valId reason to cancel It In ItS entIrety The Board In Anderson ordered the partIes to meet and attempt to agree upon an acceptable remedy wIthIn 60 days It was lIkely that any remedy mIght Impact the number of eXIstIng F05 vacancIes, and In mId-June 1999 the partIes entered Into a settlement agreement. Although the terms of that agreement are confidentIal, the settlement Impacted the number of vacanCIes avaIlable In MissIssauga and Oshawa. The settlement In Anderson et al was a valId basIs to cancel the competItIOn for those affected positions Those vacanCIes, after the settlement, no longer 32 eXIsted. The Anderson decIsIOn and the resultIng settlement agreement was a "change In cIrcumstances" after the ongInal postIng and constItuted a "sound and practIcal" busIness reason for not contInuIng the competItIOn as It relates to the affected posItIOns But neIther the settlement nor the decIsIOn Itself constItute a valId reason to cancel the competItIOn In ItS entIrety ThIS IS because the settlement dId not affect all of the vacanCIes posted In January 1999 None of the North York posItIOns were Impacted. Those vacanCIes contInued to eXIst after the Anderson settlement. Insofar as the Anderson decIsIOn Itself IS concerned, the eVIdence of DIrector Gruchala was that the flaws IdentIfied there could have been corrected and I agree wIth that assessment. Clearly personnel files could have been revIewed, references could have been checked and the subJectIvIty concerns IdentIfied by the Board could have been corrected. In addItIOn, relatIvely equalIty could have been properly taken Into account. I also note that the Anderson decIsIOn dId not result In the cancellatIOn of the January 1999 F04 competItIOns The reason why It caused the cancellatIOn of the F05 competItIOn, but not the F04 competItIOns, was not explaIned. I also conclude that the flaws IdentIfied In Anderson dId not Irrevocably taInt the January 1999 competItIOn as suggested In the November 9 1999 memo The procedure used In Anderson was dIfferent than the procedure followed In the January 1999 F05 competItIOn. In Anderson the wntten test score plus the oral IntervIew score were 33 combIned and then dIvIded by 3 (for the number on the IntervIew panel) to rank the candIdates The wntten test formed part of the final score and rankIng. In the January 1999 F05 competItIOn, accordIng to DIrector Gruchala, the wntten test was used solely as a screemng devIce to test for techmcal knowledge and competence a basIc prereqUIsIte of both the F05/TA5 posItIOn. There was no eVIdence that the wntten test would be consIdered as part of the rankIng process The wntten test, moreover appears to have tested techmcal knowledge only and no other factors There was also no eVIdence that negatIve markIng was employed In the wntten test. In addItIOn, the subJ ectIvIty concern of the Board In Anderson centered on the fact that the three-member IntervIew panel was famIlIar wIth seven of the mne successful applIcants That fact, combIned wIth the fact that the IntervIew panel had not revIewed the applIcants' personnel file or references, caused the Board to be concerned about potentIal bIas In sconng the wntten test and oral IntervIew There was no eVIdence that such a flaw eXIsted In the January 1999 F05 competItIOn. Even If It dId, reVIew of the personnel files and reference checks would largely have allevIated the concern. The eVIdence shows that the Mimstry dId not hIre a consultant to reVIew the competItIOn process In lIght of Anderson et al. untIl late November 1999 It seems possIble that such a reVIew could have been done earlIer In the year At the arbItratIOn heanng, DIrector Gruchala testIfied that the dIrectors In the CorporatIOns Tax Branch were also concerned that the IntervIew panel establIshed for the 34 January 1999 F05 competItIOn mIght be bIased because, wIth the proposed restructunng, many of the Group Managers wanted the TA5 Jobs themselves He testIfied that the dIrectors dIscussed the possIbIlIty of changIng the panel but were concerned that changIng It mId-stream would constItute a flaw In the competItIOn process In my VIew the potentIal bIas of the panel mIght have been a legItImate concern although, at the tIme, late March to early Apnl 1999 the restructunng had not yet been proposed. The Mimstry's response to the salary InVerSIOn Issue mIght sImply have been to pay the AM-20s more and leave the eXIstIng structure alone But even assumIng the Group Managers wanted the TA5 Job there IS no eVIdence that the dIrectors raised thIS concern wIth AssIstant Deputy Mimster Lawne In Apnl when the Issue was dIscussed among the dIrectors, or at any tIme thereafter There IS no eVIdence that It factored Into the decIsIOn by AssIstant Deputy Mimster Lawne to cancel the competItIOn. There IS nothIng In the documentatIOn submItted at the heanng that IndIcates that thIS concern was consIdered at all Further the case law IndIcates that an IntervIew panel can be changed dunng a competItIOn. In OPSEU (Foster) and Ministry of Natural Resources GSB No 665/88 (Venty Vice-Chair) a new posItIOn was created and posted and thIrty-one applIcants applIed IncludIng the gnevor A wntten test was gIven and those wIth the top five scores were IntervIewed. The gnevor was selected and hIS name forwarded to the RegIOnal DIrector for approval Upon InVestIgatIOn, the RegIOnal DIrector concluded that the selectIOn process was flawed and had to be set aSIde He was concerned about "the fact 35 that a number of qualIfied applIcants had not been granted an IntervIew and that there was InSUfficIent emphaSIS on the planmng focus of the Job" The RegIOnal DIrector appoInted a second selectIOn commIttee to reVIew the applIcatIOns and to "conduct a set of IntervIews based on qualIficatIOns for the posItIOn." ThIS tIme, 14 applIcants were IntervIewed and thIS tIme the gnevor placed fourth. There was no eVIdence that the employer set aSIde the first panel's results In order to dISCnmInate agaInst the gnevor In the Board's VIew the RegIOnal DIrector properly determIned "that a number of apparently qualIfied candIdates should have been IntervIewed and were arbItranly and wIthout reason demed that nght" and that he "properly Intervened to complete the process In a reasonable manner" AccordIngly changIng an IntervIew panel dunng a competItIOn IS not necessanly a flaw and may In a gIven set of cIrcumstances, be reqUIred to ensure a proper competItIOn. FInally and thIS applIes to all of the other reasons raised by the Mimstry as well, the Mimstry had decIded In mId-June 1999 that the Anderson et al decIsIOn was a reason to postpone the competItIOn but not cancel It. The November 9 1999 memo of DIrector GnmsdItch clearly states that dunng the June 1999 conference call, It was decIded to put the F05 competItIOn In abeyance "pendIng resolutIOn of such Issues as Corp Tax boundanes and resource reqUIrements In each office, a reVIew of the competItIOn approach In VIew of a recent gnevance decIsIOn In Anderson et al and, development of new selectIOn cntena to encompass the dutIes of the TA 5 At that tIme It was also 36 agreed that when we were ready to proceed the competItIOns would only be open to those IndIVIduals who applIed for the competItIOns that were placed In abeyance" ThIS memo clearly IndIcates that Anderson et al and the Mimstry's reVIew of ItS competItIOn approach were vIewed as reasons to put the F05 competItIOn on hold, but not to cancel It entIrely Thus, by mId-June, more than two months after the decIsIOn had been released and after the settlement agreement had been reached, Anderson et al was not perceIved by the Mimstry as a reason to cancel the competItIOn. For these reasons, I conclude that the Anderson et al decIsIOn was a valId reason to delay the January 1999 F05 postIng untIl mId-June 1999 and to cancel the postIng Insofar as the posItIOns whIch were no longer vacant after the settlement agreement In that case was reached. It was not, however a "sound and practIcal" reason to cancel the competItIOn In ItS entIrety 2. The creation of the new Tax Auditor class series and the resulting changes in the TA5 duties. In my VIew thIS Issue IS the most dIfficult one to assess It IS also cntIcal because If the new T A5 posItIOn IS dIfferent than the F05 one, then the "vacancIes" whIch were posted In January 1999 no longer eXIsted and cancellatIOn of the competItIOn would be proper As noted prevIOusly the case law permIts an employer to cancel a competItIOn when changed CIrcumstances result In the elImInatIOn of the vacancy for whIch the postIng was made 37 The Mimstry contends that the TA5 Job IS dIfferent than the F05 one, InvolvIng substantIally more team leadershIp skIlls, and that It IS therefore fundamentally a new and dIfferent Job I have no doubt that the restructunng of the tax audIt sectIOn, In lIght of the creatIOn of the new tax audItor class senes, was bona fide The TA5s were to act In sIgmficantly more of a team leader role In the field Although thIS work had been done by the F05s, It had been done "relatIvely Infrequently" and far less than the 50% set forth In the posItIOn specIficatIOn for the F05 The eVIdence of DIrector Gruchala to thIS effect was not refuted But the questIOn remaInS whether these new responsIbIlItIes lead to the conclusIOn that It was, In fact, a dIfferent Job The letter of understandIng contaIned In the collectIve agreement refers to the change as a "classIficatIOn adJustment" due to skIlls shortages DIrector Gruchala testIfied that the new class senes was sought because the Mimstry expenenced dIfficulty recruItIng qualIfied employees dunng the TIP-l phase at the salary levels offered. To that end, the partIes agreed that the Employer would "develop a new Tax AudItor senes and class standards for the posItIOns of Tax AudItors In the Mimstry of FInance (currently they are In the FInanCIal Officer senes )" and substantIally raised the level of pay It further provIded that "[s]teps wIll move by the same percentages, and employees wIll remaIn at theIr present step" Thus the partIes, through the collectIve agreement, treat the change as a "classIficatIOn adJustment" for the "posItIOns of Tax AudItors In the Mimstry of FInance " Employees In the FOl through F05 senes were reclassIfied as TAls through 38 TA5s TheIr FO posItIOns were not elImInated. Nor were any TA vacanCIes created by thIS The employees In the FInanCIal Officer (atYPIcal) senes sImply had theIr posItIOns reclassIfied and theIr pay was substantIally enhanced. The eVIdence shows, moreover that team leadershIp was a part of the F05 Job WhIle It may have more often Involved a reVIew of F04 work, rather than leadIng a team In the fi el d, team I eadershI p of the exact type reqUIred of a T A5 - I eadIng a team audIt In the field - was clearly Included In the F05 posItIOn specIficatIOn and was, on occaSIOn, done The dIfference IS one of degree and emphasIs, It IS not a wholly dIfferent Job As set forth In the Apnl 13 1999 proposal regardIng the restructunng, exerCIse of team leadershIp responsIbIlItIes would "take on a dIfferent form" A reVIew of the TA5 posItIOn specIficatIOn and the F05 posItIOn specIficatIOn further shows that the skIlls and knowledge reqUIred are substantIally sImIlar The fact that there was no specIfic traInIng for team leadershIp when the changeover was made also IndIcates that the skIlls and knowledge are essentIally the same WhIle DIrector Gruchala testIfied that traInIng was left to local management, no eVIdence of addItIOnal traInIng at the local level was provIded. If team leadershIp skIlls were a completely new skIll set, as the Mimstry suggests, one would expect traInIng In thIS area. Further the August 11 1999 LERC mInutes state In response to the Umon's questIOns about the role of the F05s In the new orgamzatIOnal structure, that "[t]he F05's 39 wIll stIll be In a team leadIng capacIty" The use of the word "stIll" IndIcates that a team leadershIp role eXIsted before and was part of the Job The Mimstry moreover In numerous documents, equated the F05s and TA5s and used the terms Interchangeably In the Apnl 13 1999 memo regardIng the restructunng of the CT field audIt sectIOn, one of the charts refers to the complement of "F05s/TA5s" and "F04s/T A4s" In each office The LERC mInutes, as well as the November 9 1999 memo from DIrector GnmsdItch, refers to the F05 competItIOn as the "T A5" competItIOn. The October 9 1999 report on the dIstnbutIOn of corporatIOns tax field audIts refer to "F05" and "F04" posItIOns, well after the tIme when the changeover to the T A classIficatIOn had taken place Dunng the mId-June 1999 conference call wIth ADM Lawne, DIrector Gruchala testIfied that they dIscussed that the F05 Job ad dId not mentIOn team leadershIp and that the wntten eXamInatIOn dId not dIfferentIate between the skIlls of an F04 and F05 because It dealt wIth techmcal knowledge, not team leadershIp These were lIsted as some of the reasons "for not proceedIng wIth the current F05 competItIOn" In DIrector Gruchala's notes There was concern that a gnevance on these pOInts mIght be successful DIrector Gruchala also testIfied that he was concerned that If the IntervIew dId not Include questIOns about team leadershIp then the competItIOn would be flawed. DespIte these concerns, the decIsIOn that was made In mId-June 1999 was to postpone the January 1999 not cancel It. The decIsIOn was also made, as noted 40 prevIOusly that when the Mimstry was ready to proceed, the competItIOn would only be open to those IndIVIduals who applIed for the competItIOns that were placed In abeyance The November 9 1999 memo underscores that "development of new selectIOn cntena to encompass the dutIes of the TA5" was part of the dIscussIOn and ratIOnale to place the January 1999 competItIOn In abeyance, not cancel It. Therefore, In the Mimstry's own assessment In June 1999 the addItIOnal dutIes reqUIred of a TA5 dId not reqUIre cancellatIOn of the competItIOn. Further the concerns IdentIfied In June 1999 could have been addressed. Even though the F05 Job ad dId not emphasIze team leadershIp It dId mentIOn "orgamzatIOnal and leadershIp skIlls" and the posItIOn specIficatIOn clearly and qUIte predomInantly Included team leadershIp responsIbIlItIes AccordIngly the IntervIew could have - and should have - Included team leadershIp questIOns The selectIOn cntena could have been amended to reflect team leadershIp skIlls SInce they were clearly part of the eXIstIng F05 posItIOn specIficatIOn. As set forth In OPSEU (Fostel) and MinistlY of Natural Resources supra, the Board approved the creatIOn of a second selectIOn commIttee to conduct a set of IntervIews based on the qualIficatIOns of the Job whIch Included a planmng focus that had not been taken Into account In the ongInal IntervIew Here the fact that the IntervIews had not yet taken place made thIS refocus entIrely possIble and appropnate AccordIngly for the reasons set forth above, I conclude that the creatIOn of the new Tax AudItor classIficatIOn, the resultIng reorgamzatIOn of the corporatIOns tax field 41 audIt sectIOn and change In responsIbIlItIes of the F05 posItIOn dId not elImInate the "vacancIes" whIch had been posted In January 1999 It changed theIr classIficatIOn and level of pay and It changed theIr responsIbIlItIes In terms of the emphasIs on team leadershIp but It dId not elImInate the posItIOns Nor dId It reqUIre a matenal change In qualIficatIOns There was stIll an ongoIng need for F05/TA5 employees In the North York RegIOnal Tax Office Consequently whIle the change In classIficatIOn and dutIes was a new development - although perhaps not an wholly unforeseen one - It dId not result In the elImInatIOn of the posItIOns whIch had been posted In January 1999 Nor In my VIew dId the change In dutIes result In a matenal change In the reqUIred qualIficatIOns or skIlls Team leadershIp was part and parcel of the F05 Job and, as set forth In the August 1999 LERC mInutes, the F05s "wIll stIll be In a team leadIng capacIty" under the revIsed orgamzatIOnal structure AccordIngly these changes do not JustIfy the cancellatIOn of the January 1999 F05 competItIOn. 3 Regional Boundaries - Ministry-wide and within the Corporations Tax Branch The thIrd reason that the Mimstry cItes to support the cancellatIOn of the F05 competItIOn was the Mimstry-wIde regIOnal boundanes reVIew as well as the reVIew of tax file boundanes wIthIn the CorporatIOns Tax Branch. The reVIew of tax files wIthIn the CorporatIOns Tax Branch was ImtIated In the Spnng of 1999 and was completed by early November ThIS IS eVIdent from the 42 November 9 1999 memo whIch states "We have now completed our reVIew of boundanes and resource reqUIrements and determIned that we only have up to seven posItIOns avaIlable In North York and none In the other offices" AccordIngly by early November 1999 the reVIew of boundanes and resource reqUIrements was no longer an unknown factor At that pOInt, It was no longer a reason to delay the competItIOn and It was not a reason to cancel It, except to the extent that It elImInated a posted posItIOn. In regard to the Mimstry-wIde reVIew of regIOnal boundanes, that process was approved dunng the summer of 1999 but It was not completed In 1999 Nor was It completed In February 2000 when the TA5 posItIOns were posted. In fact, at the tIme of the heanng, the process was stIll not entIrely complete Under these cIrcumstances, the regIOnal boundanes proJect cannot JustIfy the Mimstry's cancellatIOn of the F05 competItIOn. 4 The restructuring of the electricity sector The eVIdence showed that the Mimstry's uncertaInty about the number of employees needed to handle the restructunng of the electncIty sector and the audItIng of theIr PIL payments dId not take place untIl October 1999 It was not untIl October 1999 that the Issue of who would handle thIS work - the federal government or the proVInce - was raised. Although thIS JunsdIctIOnalIssue dId lead to uncertaInty about the number of posItIOns whIch needed to be filled, thIS reason was never cIted as a reason for the cancellatIOn of the F05 competItIOn untIl after-the-fact. In none of the e-maIls that went to ADM Lawne or that he sent to DIrector GnmsdItch was the Issue raised. Nor was It 43 relayed to the Umon at the December 15 1999 MERC meetIng In terms of the reasons for the cancellatIOn of the competItIOn. There was no eVIdence that thIS matter was dIscussed wIth ADM Lawne In terms of the cancellatIOn of the F05 competItIOn or that It formed any part of the basIs of hIS decIsIOn. AccordIngly because thIS factor was not relIed upon to cancel the competItIOn, It cannot be relIed upon to JustIfy that decIsIOn. 5. The Deputy Minister's Commitment to the AM-20s. The Umon suggests that the real reason that the F05 competItIOn was cancelled was because the Deputy Mimster had assured the AM-20s that "[a]ny group manager who IS not successful In that [AM-21] competItIOn should be consIdered In competItIOns for semor field audItor posItIOns" The eVIdence presented suggests that thIS commItment was a factor In the decIsIOn to cancel the competItIOn. The November 9 1999 memo to ADM Lawne reveals that the Mimstry was faced wIth qUIte a dIlemma. It truly was In a "no-wIn" sItuatIOn In whIch eIther ItS Group Managers or the ongInal applIcants would be unhappy and would lIkely gneve The Mimstry had ImtIated an F05 Job competItIOn that had been held In abeyance for about ten months pendIng resolutIOn of a number of Issues - the corporatIOns tax boundanes and resource reqUIrements In each office a reVIew of the competItIOn approach In VIew of Anderson et al and development of new selectIOn cntena to encompass the dutIes of the TA5 In June 1999 It had been decIded that when the Mimstry was "ready to proceed the 44 competItIOns would only be open to those IndIVIduals who applIed for the competItIOns that were placed In abeyance" In the Intenm, however on June 4 1999 the Group Managers had gneved the Mimstry's restructunng and sought to have the AM-21 competItIOns held In abeyance and/or to have the unsuccessful Group Managers placed dIrectly Into the TA5 posItIOns wIthout competItIOn. On August 5 1999 the Deputy Mimster demed the gnevance and demed the request that the Group Managers be placed Into the T A5 posItIOns wIthout competItIOn. He also stated "Any group manager who IS not successful In that competItIOn should be consIdered In competItIOns for semor field audItor posItIOns" The November 9 1999 memo pOInts out these two conflIctIng posItIOns to ADM Lawne and seeks advIce on how to proceed. The memo contInues To date we have told OPSEU that the competItIOn IS In abeyance not that we Intend to cancel It. There IS concern that If we proceed by InVItIng only the prevIOUS applIcants to apply for the competItIOn In North York the Group Managers who were not successful In the semor Group Manager competItIOn may wnte to the Deputy Mimster statIng that we have not followed through on hIS commItment. Conversely If we do open up the competItIOn to others we wIll more than lIkely receIve gnevances from the ongInal applIcants for the posItIOns complaInIng that we opened up the competItIOn to gIve them to our managers I have spoken to Des KIrk on thIS subJect and he IS of the OpInIOn that we wIll get gnevance[s] no matter whIch way we go He belIeves opemng It up (to Include the managers) IS defendable on the basIs that the TA5 posItIOn IS In effect a new posItIOn WIth a new selectIOn cntena and that the competItIOn whIch we cancelled had sImIlar flaws as the Anderson et al gnevance and management had to take steps to correct It. Your thoughts would be apprecIated. 45 On November 18 1999 ADM Lawne responded to DIrector GnmsdItch, dIrectIng hIm to "proceed accordIngly" and attached a November 17 1999 e-maIl from Ed Farragher statIng that he agrees wIth the approach recommended by Des KIrk and that "[g]Iven the changes to the Job responsIbIlItIes and the number of opemngs now avaIlable, we can JustIfy startIng over wIth a new competItIOn." ThIS eVIdence suggests that a decIdIng factor In cancelIng the F05 competItIOns (and thereby opemng It up to the managers) was the commItment made to the Group Managers by the Deputy Mimster All of the other Issues - the regIOnal boundanes and resource reqUIrements, Anderson et al and the TA5 selectIOn cntena - had been consIdered In June and had not led to cancellatIOn of the competItIOn. The only new factor raised In November 1999 was the commItment made to the Group Managers The Mimstry could have opted, as It ongInally decIded In June 1999 to proceed only wIth those IndIVIduals who applIed for the competItIOns that were placed In abeyance It chose not to do so and felt that the decIsIOn to cancel the ongInal competItIOn was "defendable" and that startIng over could be "JustIfied" There IS no eVIdence to suggest, and the Umon does not allege, that the Mimstry made thIS decIsIOn In bad faith to thwart the ongInal applIcants Its goal may well have been, as It asserts, to be fair to all of ItS employees - the ongInal applIcants, other F04s who may not have applIed and the Group Managers Indeed, I specIfically find that DIrector Gruchala and DIrector GnmsdItch, both of whom testIfied fully and candIdly 46 acted In good faith at all tImes But the result of the Mimstry's decIsIOn to cancel the competItIOn and start over was to senously preJudIce the nghts of the gnevors That IS because the competItIOn was now open to a group of very hIghly qualIfied managers who had prevIOusly held the F05 posItIOn and had managed both F05 and F04 employees None of theses managers had applIed In January 1999 It IS not at all surpnSIng that seven of the ten TA5 posItIOns were awarded to Group Managers The resultIng sItuatIOn IS sImIlar to that In Marks and Ministry of Natural Resources supra, where the Board ruled at p 9 In "cancellIng" the ongInal notIce and "begInmng agaIn" the employer has In realIty sImply extended the tIme for makIng applIcatIOns for the Job The vacancy we repeat, eXIsted at all tImes, and the qualIficatIOns set out were, for all matenal purposes, unchanged. Because of the employer's actIOns, however the tIme for makIng applIcatIOn for that Job was extended well beyond the "establIshed cloSIng date" contemplated by the collectIve agreement. The effect of thIS, of course, was to depnve the gnevor of consIderatIOn of hIS applIcatIOn together wIth those of other employees made In the same competItIOn and filed In accordance wIth the terms of the competItIOn. In sum, although 1999 was a year full of changIng CIrcumstances and developments wIthIn the CorporatIOns Tax Branch of the Mimstry of FInance, the January 1999 postIngs for Semor CorporatIOns Tax AudItor contInued to eXIst, at least In the North York RegIOnal Tax Office The four reasons cIted by the Mimstry to JustIfy the cancellatIOn - (1) the Anderson et al decIsIOn and settlement; (2) the new T A class senes and standards as well as the resultIng reorgamzatIOn and change In dutIes of the T A5 posItIOn, (3) the RegIOnal Boundanes and resource allocatIOn reVIew and (4) the restructunng of the electncIty sector - dId not constItute "sound and practIcal" reasons to 47 cancel the competItIOn In Its entIrety Some were valId reasons to delay the competItIOn and to cancel It Insofar as posItIOns ongInally posted were elImInated. But for all of the posItIOns that remaIned - specIfically the seven In North York - the competItIOn should not have been cancelled. The Mimstry vIOlated the ArtIcle 6 nghts of the gnevors when It cancelled the competItIOn and reposted for the same posItIOns In February 2000 Remedy When a vIOlatIOn has been found, the goal IS to put the gnevors, to the extent possIble, In the same posItIOn that they would have been In had theIr nghts under the collectIve agreement not been vIOlated. The normal remedy In a case lIke thIS IS to declare the second competItIOn, the February 2000 one, to be a nullIty and to order the Employer to proceed wIth the ongInal competItIOn. My concern about that IS the potentIal dIsruptIOn such an order mIght have on the operatIons of the North York RegIonal Tax Offi ce DependIng on eXIstIng and upcomIng T A5 vacanCIes, an alternatIve mIght be to proceed wIth the January 1999 competItIOn and have the seven successful candIdates fill the next seven TA5 vacanCIes, WIth a monetary top-up untIl such tIme as they are able to assume such posItIOns The number seven relates to the number of F05 posItIOns remaInIng In North York as set out In the November 9 1999 memo 48 There IS also an Issue of back pay for the seven successful candIdates from the tIme the TA5 posItIOns were filled from the February 2000 competItIOn untIl now Although the Mimstry asked for a specIfic order rather than a dIrectIOn to have the partIes seek out a settlement, the partIes may be able to desIgn a remedy whIch IS satIsfactory and less dIsruptIve to the Mimstry's operatIOns For example, there may be T A5 vacanCIes In other offices whIch a successful candIdate mIght prefer AccordIngly the Board dIrects the partIes to meet and attempt to agree upon an acceptable remedy at the earlIest possIble date If no agreement IS reached wIthIn 60 days from the date of thIS Award, the Board wIll reconvene at the request of any of the partIes to receIve further submIssIOns on remedy The Board wIll remaIn seIzed for that purpose Conclusion 1 For all of the reasons set forth above, the Board concludes that the gnevors' nghts under ArtIcle 6 were vIOlated when the Mimstry cancelled the January 1999 F05 competItIOn In ItS entIrety Although the reasons relIed upon by the Mimstry except for the restructunng of the electncIty sector JustIfied a delay In the competItIOn as well as cancellatIOn of the competItIOn Insofar as the F05 posItIOns whIch were elImInated by the settlement In Anderson et al. and the reallocatIOn of tax files, they dId not constItute "sound and practIcal" reasons to cancel the competItIOn In ItS entIrety DespIte all of the changes that occurred In the CorporatIOns Tax Branch In 1999 seven (7) F05/TA5 posItIOns remaIned In the North York RegIOnal Tax Office 2 The Board dIrects the partIes to meet and attempt to agree upon an acceptable remedy If no agreement IS reached wIthIn 60 days from the date of thIS Award, the Board wIll reconvene at the request of any of the partIes to receIve further submIssIOns on remedy 3 The Board remaInS seIzed for that purpose 49 Dated at Toronto thIS 26th day of July 2001 H ' cf:hnmGc RandI H. Abramsky Vice-Chair 50