HomeMy WebLinkAbout2000-0319.Leung et al.03-09-24 Decision
Crown Employees Commission de ~~
Grievance Settlement reglement des griefs
Board des employes de la
Couronne
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IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontano PublIc ServIce Employees Umon
(Leung et al ) Grievor
- and -
The Crown In RIght of Ontano
(Mimstry of FInance) Employer
BEFORE RandI H. Abramsky Vice-Chair
FOR THE UNION Don MartIn
Gnevance Officer
Ontano PublIc ServIce Employees Umon
FOR THE EMPLOYER Helen Ecker
Labour RelatIOns Consultant
Mimstry of FInance
HEARING AddItIOnal SubmIssIOns August 14 & 28 and
September 10 2003
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FINAL AWARD
On July 9 2003 I Issued an Award In thIS case whIch determIned that the
Employer's decIsIOn not to select Mr Pestell for the posItIOn of Tax AudItor 5 was not
reasonable Based on the eVIdence presented, the decIsIOn dId not flow logIcally from the
facts Conversely I determIned that the Employer's selectIOn of Mr Gabay also dId not
flow logIcally from the facts presented. In terms of the other gnevors, I found "that the
Employer's selectIOns were ratIOnally related to the stated cntena, even though I may not
have reached all of the same conclusIOns" The A ward dIrected the Employer to place Mr
Pestell In the posItIOn of Tax AudItor 5 as soon as It could practIcally be arranged, but It dId
not reqUIre that the Mimstry replace Mr Gabay wIth Mr Pestell Both partIes' sought
clanficatIOn of the July 9 2003 Award.
The Award was wntten In the manner set out above to provIde the Employer wIth
the maXImum flexIbIlIty If It decIded to retaIn Mr Gabay as a Tax AudItor 5 and to aVOId
potentIal dIsruptIOn to the Mimstry's operatIOns The partIes, however had expected the
Board, after havIng revIewed the documentatIOn agreed upon by the partIes, to SubstItute ItS
determInatIOn for that of management If the decIsIOn dId not meet the test of
reasonableness and good faith set out In OPSEU (Young et al. Group Grievance) and
Ministry of the Attorney General (2002) GSB No 1455/00 (Abramsky) AccordIngly the
Award should have been wntten to reqUIre the Employer to SubstItute Mr Pestell, Instead
ofMr Gabay In the posItIOn of Tax AudItor 5
3
The Umon, In Its submISSIon, raised concern that some gnevors "may
understandably feel that Mr Pestell and Mr Gabay have been especIally sIngled out, whIle
theIr own qualIficatIOns have never been honestly consIdered at all " Based on the
submIssIOns of the Umon, the Award dId spend a substantIal amount of tIme on Mr Pestell
and Mr Gabay but ALL of the documentatIOn on ALL of the gnevors was fully revIewed.
All of the gnevors' performance appraisals were revIewed. All of the gnevors' resumes
all of the gnevors' scores In the wntten portIOn of the cancelled F 0 5 competItIOn, all of
the gnevors' performances In the Tax AudItor 5 competItIOn and the Inventory Summary
Reports, or theIr eqUIvalent InformatIOn. All of the InfOrmatIOn and documentatIOn was
consIdered - and a determInatIOn was made I determIned that the Employer's selectIOns -
other than Mr Pestell and Mr Gabay - "were ratIOnally related to the stated cntena."
The fact that I stated that I "may not have reached all of the same conclusIOns" IS
Irrelevant. The test of reasonableness IS not one of correctness As noted in OPSEU
(Bousquet) and MinistlY of Natural Resources (1990) GSB No 541/90 et al (Gorsky) the
fact that an arbItratIOn board mIght have come to a dIfferent decIsIOn or assessment IS
Irrelevant. QuotIng from the decIsIOn of Shaw GSB No 410/88 (Watters) at p 6 the
Board held at p 60
It IS easy to brand as "IrratIOnal" any thought process or decIsIOn wIth whIch
one does not agree The Deputy Mimster must be free to make decIsIOns,
wIthout beIng found to have acted IrratIOnally merely because a board of
arbItratIOn mIght have come to a dIfferent decIsIOn.
As long as the decIsIOn flows logIcally from the facts and IS not Improperly motIvated, the
decIsIOn meets the test of reasonableness In thIS regard, It should be noted that there was
no allegatIOn, and no eVIdence that the Employer acted for an Improper motIve Further
4
as noted, I found that the Employer's selectIOn of the SIX other gnevors flowed logIcally
from the facts
AccordIngly the Award dated July 9 2003 IS hereby amended as follows
1 I conclude, on the balance of probabIlItIes, that the Employer's decIsIOn not to select
Mr Pestell was not reasonable
2 The Employer's selectIOn of the gnevors for the posItIOn of Tax AudItor 5 IS hereby
amended to SubstItute Mr Pestell for Mr Gabay The Employer's selectIOn of the
remaInIng SIX gnevors stands
3 The Issue of compensatIOn, If any IS left to the partIes to resolve
4 I shall remaIn seIzed.
Issued at Toronto thIS 24th day of September 2003
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