HomeMy WebLinkAbout2003-3147.Morsi.08-04-22 Decision
Commission de
Crown Employees
Grievance Settlement
règlement des griefs
Board
des employés de la
Couronne
Suite 600 Bureau 600
180 Dundas St. West 180, rue Dundas Ouest
Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8
Tel. (416) 326-1388 Tél. : (416) 326-1388
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GSB# 2003-3147, 2003-3148, 2003-3149, 2004-0072, 2004-0073, 2004-0320, 2004-0904, 2004-0905,
2004-0956, 2004-1274, 2004-1371, 2004-1648, 2004-2017, 2004-2018
UNION# 2003-0546-0017, 2003-0546-0018, 2003-0546-0019, 2003-0546-0022, 2003-0546-0023,
2003-0546-0024, 2004-0546-0006, 2004-0546-0005, 2004-0546-0007, 2004-0546-0011,
2004-0546-0013, 2004-0546-0014, 2004-0546-0031, 2004-0546-0032
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Morsi)
Union
- and -
The Crown in Right of Ontario
(Ministry of Finance)
Employer
BEFORE Barry Fisher Vice-Chair
FOR THE UNION Steve Lavender, Grievance Officer,
Ontario Public Service Employees Union
(Competition 3423)
Gavin Leeb, Barrister and Solicitor
Ed Holmes, Ryder Wright Blair & Holmes LLP,
Barristers and Solicitors
(Competitions 3797 and 3764)
FOR THE EMPLOYER
Benjamin Parry
Counsel
Ministry of Government and Consumer Services
HEARING
May 16, June 24, November 22, 2005;
January10, June 7 & 23, 2006;
August 27, 2007; January 10, April 11, 2008.
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Decision
This is a series of 14 grievances filed by the Grievor in relation to her not being granted an
interview in 10 separate job competitions for the position of a Tax Auditor 2 (TA2) as a Field
Auditor in the RST Branch.
The time span of these grievances spans from March, 2003 to about January, 2005, when the
Grievor was successful at winning a TA2 position.
The Grievor is alleging that she should have been granted an interview both on ?traditional?
grounds (i.e. she had the relevant qualifications to be entitled to an interview) but also on the
ground that she was discriminated against because of her age. She was 55 in 2005.
Originally the parties agreed that I was to hear all of the evidence and arguments sequentially
and render one omnibus decision at the end on all issues.
Then on April 11, 20008, after hearing all the evidence and arguments on competitions 3423,
3797 and 3764, the parties decided that they wanted me to render a decision on all issues heard
to date, including the issue of age discrimination. I agreed to do so on the understanding that any
findings of fact in this award would be binding on the balance of the grievances yet heard.
Competition 3423
This competition was an open competition for three Field Auditor positions located in the
Kitchener office. It was held in February, 2003.
The only witness for the Employees was Brian Edwards, who screened and scored
applications. Mr. Edwards at the time was a Senior Tax Auditor RST (TA4). He had previously
been a TA2.
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Mr. Edwards worked with the following documents.
1.Posting: The relevant qualifications are listed as follows:
Demonstrated experience and knowledge of accounting/auditing/principles and audit
systems; knowledge of various computer software programs; good interpersonal and
communication skills. Successful completion of nine courses for the CMA pre-
professional program, including three accounting courses or successful completion of ten
courses of a recognized university/community college program, plus or including courses
in Introductory/Intermediate Financial Accounting and Auditing.
2.TA2 Screening Criteria
ACCOUNTING KNOWLEDGE (30 Marks)
Accounting designation: i.e. CA, CMA, CGA or equivalent 30 Marks
Community college diploma/university degree with 20 Marks
some accounting courses
Currently enrolled in CGA or CMA 5 Marks
Minimum qualifications 10 Marks
ACCOUNTING EXPERIENCE (10 Marks)
Working in an accounting environment
3+ years 10 marks
2-3years 8 Marks
1-2years 6 Marks
< 1 year 4 Marks
AUDITING EXPERIENCE (10 Marks)
Working in an auditing environment
2+ years 10 Marks
< 2 years 5 Marks
4
LEGISLATION (10 Marks)
Working knowledge of RST legislation up to 10 Marks
Experience with other tax statutes up to 5 Marks
COMPUTER SKILLS (10 Marks)
PC/Mainframe experience 2 Marks
Software 2 Marks Each
(Max. 8 Marks)
COMMUNICATION SKILLS (10 Marks)
Resume, cover letter 15 Marks
-logical correct grammar, etc.
Experience presenting oral/written reports 5 Marks
INTERPERSONAL SKILLS (10 Marks)
Dealing with contentious issues/people up to 10 Marks
Mr. Edwards reviewed a total of 62 eligible applicants, however only 20 were granted
interviews. The Grievor scored 45 out of 62, whereby the candidate with the least points who got
an interview scored 66 out of 100. There were 33 candidates with better scores then the Grievor
who did not get interviews. Only 8 eligible candidates got the same or lower scores then the
Grievor. In other words, the Grievor was in the lowest end of the ranking.
The Grievor?s score on the individual items was as follows:
Screening component Points to Grievor Total Points
Accounting Knowledge 20 30
Accounting Experience 2 10
Auditing Experience 0 10
Legislation 2 10
Computer Skills 6 10
Communication Skills 10 20
Interpersonal Skills 5 10
100
Total 45
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Mr. Edwards explained that in terms of Accounting Experience, he was looking for high
level accounting experience, including preparing analysis and interpretive work. His review of
the Grievor?s resume indicated that although she had extensive experience in the collection field
(in fact her resume indicated that she worked in collections at various organizations from 1991-
2002) but very little accounting experience. He did give her two points for doing bookkeeping
between 1985-1991 in her role as an Office Manger.
In terms of Auditing experience, Mr. Edwards gave her a zero because in his opinion, her
resume indicated absolutely no previous auditing experience.
With respect to knowledge of Legislation, she only got 2 out of 10 as the only statute on her
resume for which it showed she had a working knowledge was the Employee Health Tax.
Nothing in her resume indicated a working knowledge of the RST, which was the legislation to
be audited in this position.
With respect to Computer Skills, she got 6 out of 10. Although she had a good knowledge of
internal government programs, her resume indicated no knowledge of commercial accounting
programs, which she would encounter in the field at taxpayers sites.
With respect to Communication Skills, she got 10 out of 20. The usual range was 10-15. He
said there was nothing in her resume which would lead him to believe that she had written audit
findings or reports.
With respect to Interpersonal Skills, he gave her a five, which was the average. He indicated
that he viewed the collection experience as illustrative of her ability to deal with difficult
situations with people.
In comparison to the Grievor, we can look at the resume of Candidate #22, who got a mark of
66, which was the lowest score of the interviewed candidates. This candidate was a C.A. with
years of experience as an auditor and a controller. His C.A. career spanned 30 years. With those
qualifications, he got 30 out of 30 for Accounting knowledge and 10 out of 10 for Accounting
Experience, however, even though he was a Senior Auditor for over 5 years with a public
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auditing firm, Mr. Edwards only gave him 5 out of 10 for Auditing Experience. He got 4 out of
10 on Legislation, as he had done RST, GST and Income Tax returns.
This illustrates the vast differences between the Grievor and those who received interviews.
The Grievor, with her long career in primarily collections work, was competing with other
candidates with extensive accounting and especially auditing experience. There is simply no
comparison between the Grievor and the candidates who got an interview.
Therefore, even if the Grievor were to squeak one or two or five points on one or two
questions, she would still not even be in the running for an interview.
Mr. Edwards was cross-examined by Union Counsel. It was shown that in scoring one or two
other candidates (not the Grievor) he may have made a 10 point error, however this has no
relevance to his scoring of the Grievor?s application. One must remember that he scored over 60
applications.
However, other then that issue, Mr. Edwards? cross-examination revealed that he properly
focused on the posted qualifications and emphasized that the accounting and auditing experience
he was looking for were directly related to the job requirements. He simply did not see the
Grievor?s collection experience as very relevant to the job of a Field Auditor when he had people
with actual audit experience apply for the position.
With respect to the issue of age discrimination, it should be noted the applications do not
generally refer to the candidate?s age, however you can sometimes ascertain the candidate?s
approximate age through their resume. Of course, Mr. Edwards denied using age in any way in
scoring candidates.
For instance, Candidate 22, who got an interview, shows his or her work experience
commencing in 1972, as compared to the Grievor?s resume which shows her first position
starting in 1985.
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The Grievor in her testimony feels that she should have gotten 30 out of 30 for the
educational component, even though she did not posses an accounting designation such as CMA
or CA or CGA.
She disputed her score on the Accounting Experience, and feels that she should have
received 10 out of 10. She felt that her collection experience should have counted as accounting
experience.
With respect to Auditing Experience, she felt that as she worked with auditors in an audit
environment, she should have scored 6 out of 10.
With respect to Legislation, she felt she rated 10 out of 10 as her cover letter refers to all tax
statutes, which by definition would include the RST.
With respect to Computer Skills, the Grievor felt that she should have received 10 out of 10
although she admits that she did not list all of her software knowledge ?due to space
confinements on the resume?.
With respect to Communication, the Grievor felt that she should have scored 20 out of 20.
With respect to Interpersonal Skills, she believes that she should get 10 out of 10.
In summary, the Grievor strongly believes that if she had been scored fairly, she would have
received 96 out of 100 points. In fact, the top candidate who was interviewed only got 83 points.
The Grievor has dramatically different views of her qualifications then the Ministry.
On cross-examination, the Grievor repeated her belief that experience in collections was the
same as experience in accounting. When Brian Edwards, after the competition, suggested in an
email that she could gain auditing experience by applying for an audit internship, she was
insulted as she believed that she had vastly more experience then was required to be an intern.
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Argument and Decision on Competition 3423
There is no doubt that management can limit the number of people to be interviewed.
With over 60 candidates who were eligible, interviewing 20 for only three positions is quite
reasonable.
It is also clear that management does not have to look beyond the material filed by the
applicant, although they clearly cannot be wilfully blind of facts. I am satisfied that the Grievor?s
application was thorough and complete and that if she chose not to put something in her resume,
that is her problem alone.
The Union points out that under Accounting Knowledge, the posting called for successful
completion of level 1, 2 and 3 of the CGA program, however, the screening criteria only gave 10
out of 30 points for this category, and to get more points in this category you had to have more
accounting knowledge then the job called for. In other words, the job screening tool overvalued
an attribute beyond the job requirements. This may well be so, however as this would result in
not only the Grievor getting more points on this category but also many of the other candidates,
it is unlikely to have affected the overall ranking. As this is ultimately a case of ranking, not
absolute scores, this deficit, if it is one, would probably not have materially affected the ranking.
In any event, it would have been for the Union to show in argument how this change would have
altered the ranking, (which they could have done as they had access to all the material the
Employer did when it did the screening) but they chose not to do so.
In essence, the Employer rated the Grievor?s accounting and auditing experience very
differently than the Grievor did. Most of the dispute revolves around the parties? position as to
whether collections constituted accounting experience and what constituted ?working in an
auditing environment?.
With respect to the first point, I agree with the Employer?s position that ?accounting
experience? in relation to this job is not the same as collection experience. Collections is one part
of the larger accounting world, and a very specialized one. It has little or no connection to
auditing and therefore experience in one field is not particularly transferable to another.
9
Furthermore the term ?working in an auditing environment? implies that although actual
auditing experience is not necessary, it is something more than working in the same location as
auditors. It would presumably include doing work in conjunction with or part of an audit
function. The best that can be said of the Grievor?s experience is that she communicated
occasionally with auditors in the course of her work, but it would be a real stretch to say that this
constitutes as ?working in an audit environment?.
In conclusion then, on the traditional grounds, I see no problem with the way in which the
Grievor was screened.
With respect to the serious allegation of age discrimination, the Union did an analysis of
the suggested age of those people who got interviews. As their actual ages were not generally
revealed on the resumes, Union counsel worked on the assumption that if a candidate?s age was
not set out in the resume then a candidate would be approximately 22 years old at the time they
graduated with their first degree. Based on that assumption, the inferred ages of the interviewed
candidates ranged between 28 and 52, with an average of 36.5.
Applying those same assumptions to the Grievor?s resume (which did not reveal her
actual age but did show that she obtained her first degree in 1984) the screener would have
assumed that at the time of competition she was 41 years of age in 2003.
Simply put there is no evidence, either direct or indirect, that the Grievor was excluded
from obtaining an interview in anyway whatsoever because of her age.
I therefore dismiss those parts of the grievances that relate to competition 3423.
Competitions 3797 and 3764
These were two competitions run essentially as one. This competition was for a TA2 in
the Oshawa office. There were three vacancies. It was a closed competition open only to
Ministry employees who lived within 125 km of the Oshawa office.
There were 21 applications, 13 candidates were interviewed, and three people were hired.
10
The screening was out of 100, with a threshold for an interview set at 60. The Grievor got
a 38, the lowest score of those eligible to compete.
This time the applications were scored independently by two screeners, Mr. Wallace and
Mr. Walsh. The Criteria were set out as follows
Criteria Total Score Possible Walsh Score Wallace Score
Accounting and 45 20 22
Audit Experience
RST Knowledge 20 0 0
Computer knowledge 10 8 4
Communication 25 10 12
100 38 38
The job posting was as follow:
Demonstrated experience and knowledge of accounting, auditing principles and audit systems;
successful completion of Level 1, 2, and 3 courses of the CGA program or successful completion
of nine courses from the CMA pre-professional program, including three accounting courses or
successful completion of ten courses of a recognized university/community college program plus
or including courses in introductory financial accounting, intermediate financial accounting, and
auditing; knowledge of, and an ability to interpret RST legislation and other relevant tax
legislation; interpersonal and communications skills to interact positively with co-workers and
clients and to detail/defend audit results verbally and in writing; judgment, analytical and
investigative skills to research and identify non-compliance issues; and computer skills,
including knowledge of various accounting computer programs, to access data, create/review
spreadsheets and write audit reports and letters.
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The selection criteria were set as follows:
Accounting/Auditing Knowledge 45%
Principles & practices accounting and field auditing
Financial statement analysis
Accounting theory
Accounting systems
General business financial operations
Taxation and business management practices
To discuss accounting and auditing requirements with clients
Knowledge of and ability to interpret RST Legislation and related legislation 20%
Policies/rulings/directives
RST and related provincial/federal legislation/policies etc.
To administer tax legislation
To identify non-compliance
To determine nature & extent of testing during audit (as
per branch policy)
To apply creative audit techniques where no books or
records exist (based on branch policy
To discuss technical aspects of legislation with clients
To review and approve/disallow refunds
Communication and Interpersonal Skills 15%
To interact with clients and co-workers verbally and in writing
To educate taxpayers
To write audit papers
To defend positions before tribunals or courts
To manage the audit relationship with clients including
educational opportunities and disputes
To negotiate audit times/approach with clients
Judgment, Analytical, and Investigative Skills 10%
To identify and resolve non-compliance
To prepare audit plans
To gather evidence to support conclusions
To recommend assessment, referrals, etc.
Computer Skills 10%
Accounting software
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Spreadsheet software
Word processing software
The vast number of people who applied for this job were in role of Audit Trainee and
thus were actively working in auditing functions within the Ministry. The Grievor had refused
even the idea of first becoming an Audit Trainee, for as she told Mr. Edwards in the last
competition she found the idea ?insulting? given her vast experience.
Mr. Ian Wallace was the only screener who testified. Prior to conducting this
competition, Mr. Wallace had been Group Manager Audit, RST Branch in Oshawa. Prior to that
he had been a Senior Appeal Officer in RST, Corporate Tax and Mining Tax. He supervised 6-9
auditors in the RST Branch. Prior to this competition Mr. Wallace had been involved in running
7 to 8 competitions for TA4, TA2 or OAG positions.
He and Mr. Walsh developed the screening criteria based largely on what another
manager had developed. He and Mr. Walsh developed the 60% cut-off which they had used in
other competitions.
The Grievor submitted the same and cover letter and resume as she did in the previous
grievance.
Mr. Wallace said there was no comparison between the Grievor?s audit experience and
that of the candidates who got interviews. He concluded that her resume showed not audit
experience at all as her background was almost exclusively collections, which is not similar to
audit.
With respect to her knowledge of RST, although she appeared to have some knowledge
of RST collection procedures, this was not related to any RST audit issues.
He did give her two points for use of accounting in her current position, as it seemed to
have some accounting functions. For similar reasons he gave her part marks for report writing,
although they were not in the nature of writing audit reports.
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He gave her no points for maintaining relationships in the field as he saw no evidence of
any field experience.
With respect to Judgment, he noted her lack of ever preparing audit plans, which was the
type of Judgment he was looking for.
He noted her lack of accounting or spreadsheet software in scoring her computer
knowledge.
Of course he denied that the Grievor?s age was a factor in his decision making.
In cross-examination, Mr. Wallace indicated that the only way to get points for auditing
was to have actual audit experience. To get more than 5 points, a candidate must show OPS Field
Audit experience. Therefore having audit courses was not sufficient as they wanted direct audit
experience not just book knowledge. He made similar comments regarding the RST knowledge
issue.
The Employer?s case closed on August 27, 2007. The Union was to present its witnesses
on January 10, 2008, however the Grievor refused to attend. The Employer brought a motion to
have the entire grievance dismissed on the grounds of abandonment. I adjourned the motion to
April 11, 2008, and indicated at that time that we would proceed to hear closing arguments on
that day.
On April 11, 2008, the Grievor attended the hearing and final arguments were heard. In
other words the Union presented no evidence in this case and was content to rely upon the
written record and the testimony of Mr. Wallace. I also note that the Union had new counsel at
this point, Mr. Ed Holmes, who has taken over carriage of the case from Mr. Leeb.
In closing arguments, Mr. Perry for the Ministry emphasized that the candidate with the
lowest score who was interviewed received a mark of 61, whereby the Grievor?s score was 38,
the lowest score of all the eligible candidates. Again, it was emphasized that this was an auditing
job, and the Grievor had little or no auditing experience, whereas almost all the interviewed
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candidates were involved in the Auditing Intern program, a position the Grievor had previously
testified was ?insulting?.
With respect to the issue of age discrimination, Mr. Parry pointed out that whereas the
Grievor?s resume indicated that she started working in 1985, the resumes of candidates who got
interviews revealed the following:
a)One person started in 1976 as an auditor
b)One person started in 1983 as an Audit Junior
c)One person started in 1978 as an Audit Assistant
d)One person became a CMA in 1991
e)One person got his or her BA in 1983
Mr. Holmes? main argument on behalf of the Union was that the job posting did not
require actual audit experience and actual experience in interpreting RST Legislation, as was
required by Mr. Wallace, but rather it called for ?knowledge of accounting, audit principles and
audit systems? and ?knowledge of and ability to interpret ?RST Legislation?.
Mr. Holmes argued that the Grievor?s resume reasonably showed that she had the
requisite knowledge of the principles and systems and furthermore her experience and training
showed the necessary ability so as to qualify for an interview. He argued that if what the
Employer was really looking for was experience, they should have referred to that in the posting,
but they did not.
I believe that Mr. Holmes? approach is too restrictive. Clearly an employer who is hiring
for a ?hit the ground running? type of position (it was agreed that this was not a training position)
is entitled to take into account actual experience in the job, and that by using the words that they
did in the posting does not mean that they cannot count actual experience. We all know
instinctively that although academic training is a critical component of many jobs, there is no
substitute for actual on-the-job experience for many positions.
Secondly, if the Grievor?s position is that she did not actually list all of her on the job
experience because she believed they only wanted to see if she had the ability to learn the job,
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then she could have so testified. In fact, when she did testify in the first competition, she made it
very clear that in her opinion, she had vast relevant experience, so vast that she would have rated
herself a 96 out of 100.
I find that on the traditional grounds, this competition was held in a fair and reasonable
fashion so that there was nothing contrary to the collective agreement in denying the Grievor an
interview.
With respect to the issue of age discrimination, Mr. Holmes quite properly said in closing
that the Grievor held a strong belief that she was a victim of age discrimination in this case.
I find that there was no evidence of age discrimination in denying the Grievor an
interview.
At the last day of hearing, I had asked each counsel to prepare for me a damage analysis
in the event the Grievor succeeded in either grievance. In light of my decision, this is no longer
necessary.
Unless I am advised otherwise by the parities, the next competition grievance will
proceed on June 6, 2008
nd
DATED at Toronto, this 22 day of April, 2008
Barry B. Fisher, Vice-Chair