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HomeMy WebLinkAbout1982-0440.Black.85-01-10IN THE MATTER OF AN ARBITRATION Between: Before: THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before .THE'.GRIEvANCE SETTLEMENT BOARD For the Grievor: For the Employer: Hearings: OPSEti (Co11 Black) Grievor -and- -' The Crown in Right of Ontario (Ministry of Revenue) Employer E.B. Jolliffe, Q.C. Vice Chairman R. Russell Member G.A. Peckham Member M. Cornish Counsel Cornish & Associate' Barristers & Solicitors M. Simpson Counsel Legal Services Branch Ministry of Revenue January 12, 1984 February 16, 17 & 28,~ 1984 Karch 1, 2, 12, 14, 20, 21, 27, 28 & 29, May 10, 1984 June 5, 6, 15, 19 & 20, 1984 July 9 & 10, 1984 August 9, 10. & 20, 1984 1984 -l- 440/82 DECISION Mr. co11 Black grieved that his "Employee Appraisal" for the period from September 1, 1981, to February 28, 1982 "does not reflect my true performance. It contains unjustified criticisms." The griever, who holds the C.G.A. qualification, was employed by~the Ministry of Revenue from 1965 and became a senior auditor in 1969. He served as a "group leader" in the Retail Sales Tax Branch and was later assigned to other duties, particularly the audit of large vendors, being assisted at times by junior audito;s. He was classified l,Tax~ Auditor 3," after being promoted in January, 1969. The appraisal complained of, Exhibit A-2, was in' respect of the period from September 1, 1981 to February 28, 1982, but bears the following notation, (signed by a super- visor , Mr. John Haalboom) that "original copy received by co11 Black on J~une 14/82." Another notation states: "Mr. C. Black was not willing to sign." His grievance (Board file 440/82) appears to have been presented on 'July 27, 1982, and was referred to arbitration..on September 22 of that year: Strictly speaking, this decision relates to one particular grievance. It is, however, impossible to overlook or ignore a context in which six other grievances have been referred to arbitration. An earlier grievance (which was never referred to this Board) had partial success when the Deputy Minister required amendment of an E.P.A. We have heard evidence at great length and considered numerous documents, including audit files, in respect of the griever's performance from 1979 to 1982, but not yet in respect of the subsequent period. It is relevant to note that this panel '.' of ~the Board is charged with the responsibility of adjudicating other grievances, as follows: (1) A grievance against the denial of one day's vacation leave (Board file 4,39/82) dated August 13, 1982. ._ (2) A grievance dated August 27, 1982, against an.~~. appraisal for the period from March 1, 1982, to May 31, 1982 (Board file 23/83). .~ (3) A grievance dated September 24, 1982, against an appraisal for the period from June 1, 1982, to August 31, 1982 (Board file 266/83). . (4) A grievance dated December 13,. 1982, against- -a one-day. suspension without pay (Board file 267/83). (5) A grievance dated January 27, 1983, against a five-day suspension (Board file 594/83). (6) A grievance dated March 29, 1983, against dismissal (Board file 618/83). It had been proposed at one time to hear all the evidence before rendering a decision or decisions, of which the most important would obviously relate to the dismissal in 1983. Nevertheless, the evidence relating to. one grievance and'ifs background has takenmany months and the parties now request that the first decision be issued at this time. This the Board has been reluctant to do, but a useful purpose may be served if by any chance it should lead to an early resolution by other means of the whole matter, which appears to constitute a serious problem for both the employer and the griever. NO doubt the appraisa,l dated May 31, 1982 (three months after the period reviewed),discloses the management assessment of the griever's performance and sheds lig.ht on subsequent events, which included other unfavourable appraisals, two suspensions and finally a dismissal. Never- theless, as previously stated, this decision must focus on the appraisal dated in May, 1982, and determine whether or h not it meets Ministry standards of objectivity and fairness. The appraisal consists of a rating sheet (Form B) three and a quarter pages of "comments," single-spaced, and three pages of "attachments," being two letters; The rating sheet, reproduced on the next page hereof, explains itself. It may be seen that management rated the griever: (1) Low Satisfactory for Reliability of Judgement, (2) Low Satisfactory for.Technical Competence, (3) Unsatisfactory for Organizing Ability, (4) Low Sa&sfactory for Communication Skills: For "Personal Factors," the griever 'received: (1) In Capacity for Development, a rating of~.3 on a scale of 5, (2) In Adaptability, 5, being shown as "Poor," (3) In Initiative, 4, being a little better than "Poor." 1~~ RELIABILITY OF JUDCEMENT Consider ability to 6btain and to analyse facts and to develop consistently sound zonclusions. i TECHNICAL CO.UPETE,VCE !Lxnider the extnnt of the employee’s lob knowledge. 1 ORCANIZI?IG .4B/LlTY’ Consider ability to ~1x1 his/her own work znd:or effectively co-ordinete the work of ‘I-ask For& Consider ability in verbal and written communications to convey information and recommendations to .support policy. administrative decisions and legislation. cl cl q ,. The testimony of four management witnesses, including Messrs. Haalboom and Lukassen, establishes that the rating sheet accurately reflects their opinions about ._. the griever's performance during the period under review. To assess the validity of those opinions it is necessary to -consider ..a11 their comments attached to the rating sheet -- and also of course their testimony and that of the griever. The Board has reached certain conclusions about the * appraisal complained of. These will be stated in due course. It must be said, however, that there are 'limits to the elaboration of our reasons. To thih point there have been 24 days of hearings, during which five witnesses testified at length and counsel presented painstaking arguments. The Board was asked to examine and consider several thousand pages of documents, all of which are more or less relevant to the performance issue. It is impossible to~summari-ze or review such material adequately, except in a full-length book, which this Board is not prepexed to undertake. Our .? ~view of the material can best be epitomized in assessing the "comments" appended to the rating sheet. The bulk of the evidence and the length of arguments were doubtless inevitable. The management cause against the griever over a three-year period was based on -6 - alleged unsatisfactory performance, and not (as in many other cases) on one or more instances of misconduct calling for disciplinary action. The result of relying on "unsatisfactory performance" led to an examination --- at times a microscopic examination --- of many files for which the griever was responsible and which were' invariably subject to review by his supervisors and sometimes by others as well. ~~, . Preliminary reference must be made to appraisals prior to the appraisal dated in May; 1982. Exhibit G33 is an appraisal for the 16-month period from July 1, 1979, to October 31, 1980. In three categories Mr. Black was rated Average Satisfactory. In the fourth --- Organizing Ability --- the rating fell to Low Satisfactory. The other ratings were: Capacity for Development --- 2, a little below "Good;" in both Adaptability and Initiative -- 3, which apparently means average on a scale of 5. Only one page of comments was attached. Most were favourable or highly favourable, but there was criticism of his use of time. The ratings in this appraisal were made by Messrs. J. Peacock and EvertonClarke, and approved by Chief Audit , -7- Supervisor J.G. Coil. It was explained that "this appraisal covers a period in which Mr. Black acted as Senior Technical Auditor for large vendor audits for 13 l/2 months and as Group Leader responsible for an audit team on retailer and hospitality audits for 2 l/2 months." Under the heading of Technical Competence it was said: "Co11 has a good knowledge of the Act, policy and procedures and of accounting and auditing techniques. He continues to improve his knowledge of the EDP environment." Mr. Clarke signed this favourable appraisal, but in testimony before us was highly critical of performance before October 31 as well as after. The next appraisal, Exhibit G32, for the lo-month period from November 1, 1980, to August 31,'1981, was a marked departure from the previous appraisal. Prepared by Messrs. E. Clarke and J. Haalboom,' approved by the new Chief Audit Supervisor, Mr. Paul Masse, and dated September _. 4, 1981, it gave an Unsatisfactory Rating in three cate- gories and Low Satisfactory in the fourth, Communication Skills. The three PersonalFactors were rated 3, 5 and 4 respectively. Although Mr. Black had spent more than four months of the period performing instructional~ and supervisory -8 - duties on a special project in the Retailer/Hospitality Section (i.e. hotels, bars and restaurants) the Comments explained that "the thrust of this appraisal is concentrated within the period when Co11 operated as an Auditor of large Vendors." There was severe criticism of Mr. Black's Reliability of Judgement, Organizing Ability and Communication Skills. The longest comments were on his "Technical Competence." While conceding his experience and qualifications, it was said that "Co11 has consistently failed to exploit these assets..." It was also said that In he avoids following any given instructions which may;' conflict with his opinions." These strictures were of course protested by Mr. Black. Five days later Chief Audit Supervisor ..,Masse wrote him in Exhibit G28 vigorously confirming the appraisal and concluding with these words: As explained to you during the interview, your Job Performance will be appraised again after the three-month period ending November 30, 1981. If during this period we do not see a significant improvement in your work performance and attitude it will be necessary to consider further disciplinary action such as suspension, fines, demotion or dismissal. ;.: , -9 - The word "further" suggests a little confusion in Mr. Masse's mind, since there had been no previous disciplinary action unless an unfavourable appraisal be so regarded, an incorrect view. A negative appraisal cannot be construed as a reprimand. Actually, there had been considerable procrastination on the part of supervisors. -+On June 25 , 1991, Mr. Masse had sent a memo, Exhibit G51, to Messrs Haalboom and Clarke reminding them that "several.weeks ago" he had asked for an appraisal. He did not receive it until September. -a- Mr . Black grieved aga'in st the appraisal of September 4, 1981. On December~ 2, 1981, Deputy Minister T.M. Russell wrote Mr .;~. Black in Exhibit G36, ,advising of his investigator's report that "although nothing was brought forward to show that the appraisal ias manifestly wrong, management failed to produce evidence in support Oft the unsatisfactory rating and comments on the Technical Competence.- "factor," Accordingly, the Deputy Minister's decision was that '8 your performance appraisal should be amended to show an average satisfactory rating for Technical Competence and the comments on this factor should be - 10 - deleted. The remaining ratings and comments should remain unchanged. A further EPA for the period ending February 28, 1982, is recommended." Mr. Black replied on December concluding with the following statements: 23, Exhibit G61, 'Ihe E.P.A. on which I have grieved was not prepared with any reasonable criteria, i.e., the statements. and ratings could. not be supported by specific examples. It therefore has no validity and is totally unacceptable to me. Your recommendation for the resolution of the grievance does not address these specific problems. However, I respect you and your position and believe your decision is in the best interest of all concerned. No further action will be taken by me in this matter. Mr. Black had made a number of suggestions in his .I(. letter to the Deputy Minister. As these seem to summarize the position he takes (in his own defense) in relation to appraisals, they may be worth quoting at this point: I offer the following for consideration as standards for the preparation of E.P.A.'s: - There should be no surprises in the E.P.A.; - All statements in the E.P.A. can be supported by specific examples; - 11 - - All negative statements in the E.P.A. are supported by a previous discussion, during which the supervisor has explained and shown the employee that there is a valid area of concern; - The ratings given must agree with the specific examples ; - Negative statements should not appear on the E.P.A. until the employee has been allowed time to correct the deficiency It is obvious that the partial success in 1981 of .?. Mr. Black's first grievance did not enhance his standing in the eyes of the younger men who were his supervisors.. The amended appraisal is Exhibit G33. The next appraisal (dire.cted by the Deputy Minis-~, ter to cover the period ending February 28, 1982) was not completed by supervisors until May 31, 1982, three months later. It must de kept in mind that neither of the two appraisals described above are before this Board for adjudication. They do, however, form part of the background for the appraisals which followed in 1982 --- and the dismissal in 1983.. Moreover, a great deal of detailed testimony was given by Messrs. Masse, Clarke and Haalboom in support of the ratings and comments in the appraisal. 05 - 12 - September 4, 1981. As a result the Board is obliged to offer certain observations in respect of that testimony. Many of the details related to several audit files assigned to Mr: Black between February and May, 1980. On these, it appears from Exhibit G38 and other documents, he had not comple'ted his work by the end of September. In August he had been assigned to full-time work in the Hospi- tality Section under a different supervisor, Haalboom. In January he returned~to audits of large vendors under the supervision of Mr. E. Clarke. Even then there was delay in completing audits begun in 1980, and Mr. Clarke sent an . angry memo about two files to Mr. Black on March 2, 1981. One of these audits, file V3, had required the assistance of other district offices in Ontario and --- according to Mr.. Black --- their work was not all available. The other was file VE, which had an extremely complicated history, of which more will be said. There were about 60 auditors in the District and it is a little difficult to understand why the auditor in charge of an audit as important as V8 would be transferred -.-to other duties in an entirely~ different Section for a period of four months or more. Clearly, there was a spill- over of responsibility from one-group of duties to another - 13 - --- and again a different type of spill-over when the audi- tor returned to his work own large vendors. Perhaps some of the work could have been completed on an overtime basis, but not all of it because auditing of large vendors required visits to their premises during business hours.. It is also difficult to understand why there was not better co-ordination between the two supervisors involved. For example, when Mr. Clarke wrote to Mr. Black about his unfinished audits on October 31, 1980, he sent a copy to Mr. Coil, Chief Audit Supervisor --- but not to Mr. Haalboom, Mr. Black's supervisor at the time in the Hospi- tality Section. Mr. Clarke claims he had told Mr: Haalboom about the problem "orally and informally," but the latter testified that he was not aware of it when he completed on November 1 -2 I 1980, the appraisal which is Exhibit G33. Our other comment must be that we have been given no convincing~ explanation for the sharp change in manage- ment opinions between November, 1980, and September, 1981. What had been a favourable appraisal rather suddenly became a highly unfavourable appraisal. This is most noteworthy in one category: in the earlier appraisal Mr: Black's Tech- ; in the next it was severely nical Competen-ce was praised - 14 - criticized, which did not escape notice by the Deputy Minister's investigator. .,.. We turn now to the appraisal completed in 1981, which, unlike the earlier appraisals, has been referred to arbitration as 440/82. It related to the period between September 1, 1981, and February 28, 1982. General Comments were stated as follows: ..j During the period of this appraisal, Mr. Black acted as Senior Auditor in charge of the following conglomerate vendor audits: va , v9, v12, Vll, v14 It was his responsibility to-audit these vendors and to resolve zy non-compliance encountered (with the occasional assistance of Junior Auditors under his direction). Mr. Black also participated in a collection project wherein'he was responsible to collect accounts and clear defaulted returns for 45 vendors. It should be explained that numerous audit files were admitted into evidence at hearings in this case. For -purposes of anonymity the vendors' names were blacked out and file numbers substituted. Thus files are identified as V8, V9, etc. - 15 - The reference to the accounts and defaulted returns of 45 vendors was erroneous. Mr. Haalboom eventually testified, as other evidence has shown, that only 31 were actually assigned to the griever. This matter is referred to in subsequent comments. As previously stated, the rating sheet placed the griever at the Low Satisfactory level for Reliability of Judgement. The comments under this heading begin as follows: Co11 displayed poor judgement during his conduct of two audits: W and VS During the audit of 69, ti. Black discovered that the vendor had not accounted for tax on own use of certain electronic landing eguipnent on loan to the Federal Department of Transport. Mr. Black had made his decision that all of the loaned equipment 'should be taxable to W. He was very reluctant to accept the direction.pf his supervisor to assess only a portion of the equipment on.loan. Although his supervisor explained the Branch position on the taxability of the equipment to Wr. Black, Co11 could not accept the position. His supervisor,was forced to assert his authority in order to gain Mr. Black's acceptance of his supervisor's position - a tactic which should not have been necessary to efxsure a Senior Auditor's acceptance of the direction of his supervisor. The testimony in support of the above' statements is that of Mr. Haalboom. There is, however, certain other - 16 - -- evidence,~ including that of Mr. Black. The difference of opinion as to taxability was not as simple or as clear-cut as Mr. Haalboom suggested in his comment. Moreover, his identification of his own opinio;n with "the Branch position" is somewhat questionable, since there were other views in the Branch. When questioned at our hearing, Mr. Black said he now thinks the issue was a doubtful one which could be '~decided either way; in cross-examination he indicated his original opinion had not really changed. When doing the audit of V9, the griever concluded that the equipment in question was taxable. Mr. Haalbodm has said he was not satisfied and consulted others in the Branch, but he failed to name them. The result was his decision that only a portion of the equipment "on loan" ~should be.assessed. He seems ~to have based his opinion on ~' reading the contract between the vendor and the Federal authority, about which he made notes although these probably raise legal issues rather than-~ accounting .questions and could well have been referred to the legal officers of the Ministry. The griever had an opinion contrary to that' of Mr. Haalboom, of which he made no secret. We think however, that Mr. Haalboom was exaggerating when he wrote that he had been forced to assert his authority. The griever had many more years of experience in the Sales Tax Branch than Mr. - 17 - Haalboom and was entitled to express his opinion on a rather controversial point. Being a Senior Auditor he could not be expected to serve as a "Yes-man." < The acid tone of Mr. Haalboom's version can best be explained by an incident which followed. Audit files are regularly reviewed by supervisors, sometimes during an audit, but normally on its completion. The V9 file also went to a "reviewer" under a recently,established procedure. Mr. Haalboom had made copious comments and queries, dated -.. December 24, on pages REV1 to REV3C of the file. In his turn, the reviewer also made many comments dated January 18, 1982. On page REV-4b the reviewer, referring to schedule 547 in the file, raised the same question which had troubled Mr. Black: why have amounts for a total of $61.971.16 been deducted as non-taxable? A scrutiny of invoices for loaned eguipnent indicated that all equipment loaned is taxable on sale or rental. The reviewer again raised the issue at page REV-5 in "Further comments on Schedules J-47 and J-50" which he underlined. He continued: - 18 - According to file documentation the 7801 system (value $61,971.16) is on loan to . . . . . on a no- charge basis. In the opinion of the reviewer, V-9 is the consumer and must account for tax on the l/36 method. See copy of ruling dated July 11, 1979 from Head Office in a similar situation. Mr. Haalboom stood his ground in the following reply, which appears opposite the reviewer's final comments: ,.. V-9 is the'consumer of a portion of the eguipnent loaned to . . . . . that portion which will be returned to V-9 upon delivery of the 7801. Thus tax is assessed on this portion. ~_ v-9 is not the consumer of that portion of eguipnent which is in effect delivered under the contract of sale and on which "tax will be charged" when the last installment billing is rendered to . . . . . Thus tax is not assessed on this portion. Mr. Haalboom found fault with the griever on the ground that he had failed to give reasons for not assessing tax. on ~a portion of the equipment, thus leading to a query from the reviewer. On his part, the griever claimed he was not familiar with the reasons.; the decision had been made by Mr. Haalboom. It seems clear that the incident did much to sour .- the relationship between the griever and his supervisor, which ;as already somewhat strained. It must be added that Mr. Haalboom's rather curt explanation quoted - 19 - above did not fully clarify his position: for example it failed to address the ruling cited by the reviewer or to distinguish clearly between the facts in V9 and those dealt with in the ruling. The. Retail Sales Tax Act and the regulations thereunder give rise to many difficult questions which tax auditors are obliged to resolve. As an example, we quote 'passages from the "Post-Audit Letter" sent to V9 over the signature of Mr. Haalboom. The letter, which is part of a massive V-9 file, Exhibit A-4, illustrates the complexity of issues which may be encountered. Addressed to the Company's Director of Taxation, the letter began by summarizing tax iiability and certain credits. It then continued as follows: Future compliance with the Retail S-ales Tax Act At the close of the audit we discussed with you the deficiencies~ in your accounting system and the required changes to ensure future compliance with the Retail Sales Tax Act. You agreed that action would be taken to institute new procedures or amend current procedures in order to comply with.~the requirements ._ _ or of the Act. The areas brought to your attention are: - 20 - Purchases For C&m Use When goods purchased for own use are taxable the purchase order should indicate to the supplier that he is to charge the tax due. In cases when suppliers do not charge the tax it is your rqsponsibility to account for the tax on line 3 of your periodic return. An example would be goods imported from another country. Tax is calculated on the fair value, which is equivalent to the laid down cost in Canadian funds, and includes the value of goods in Canadian funds, duty, federal sales and excise taxes, where applicable, and delivery charges when the goods are shipped F.O,B. destination. lbe liabililty for tax results in the month the goods are received. Loaned Equipment When equipment is temporarily taken from inventory for use in the conduct'of your business,. tax is due on the formula, tax rate x I/36 cost of goods. This formula is to be applied each month the goods are in use. Research and Development Tax as required by the Act,& payable on all material consumed in research and development projects. There are no provisions to exempt taxable materials used in research and development. However, when a prototype is sold the tax paid on the materials may be claimed back. Printing for Own Use We brought to your attention an error in your formula calculation, i.e. manufactured cost of printing plates and art and layout cost were not being included in your calculation. Because of the small amount of tax involved we have not assessed you. C&- ruling on printing for own use is as follows: hhen the produced value of printing exceeds $5,000 in any year you are considered a manufacturer and tax due can be caiculated on the-manufactured cost or formula method. The formula method is calculated as follows: Add the cost of paper, imaged plate, ink, art and layout work, calculate and add 220% of the total, add Federal sales ~tax paid, then calculate the Retail . ,,,. I’ - 21 - Sales Tax on the total. Report the tax due on line 3 of your periodic return. Real Property Installation Contracts Vendors who enter into supply and install contracts where the equipment, after installation, is attached to real property, i.e. building, are responsible for the tax due which is calculated on the vendors cost. 'Ihe vendor will not charge tax on his sales invoice. Exemption Certificates 'Ihe Retail Sales Tax Act requires all vendors who make exempt sales to obtain from their customers purchase exemption certificates. @rtificates.are-to be kept on file and renewed on their expiry dates. Vendors who do not obtain certificates could be liable for the tax not collected. Post Audit Review It is incumbent on you.to review your operations for the period from September 1, 1981 to the present.and to report any additional tax that is uncovered by this review on your next return. As discussed our auditor will be returning to your 'office in order to verify your reporting of any additional tax. We thank you for the assistance rendered to our staff during the audit. Please contact this office if you require any further information or assistance. The next three paragraphs of comments on "Reliability of Judgement".refer to the prolonged audit of V8 and further illustrate Mr. Haalboom's unfavourable view of the griever's performance. Whether they constitute fair Or objective comments is another matter. The three para- graphs are as follows: :.:r; : .. - 22 - During the audit of V8, Mr. Black seriously erred in writing to V8 - asking the vendor to confirm our agreement which the vendor states was never made. The attached correspondence evidences that Mr. Black wrote to V8 on September 11, 1981, asking LB to confirm an agreement to perform an audit on sales. V8 responded on October 6, 1981, informing Mr. Black's supervisor that no such agreement had been made. On March 10, 1982, Mr. Black wrote to V8 (at his supervisor's direction) acknowledging his error of September 11, 1981. Mr. Black must learn to accept the direction of his supervisor. Dictatorial action by a supervisor in order to ensure Mr. Black's acceptance of. his suprvisor's direction should not recur. __ Furthermore Mr. Black must not again write to a vendor confirming agreements which do not exist. Such actions call into question the honesty of the writer . -What exactly was said between Mr. Black and the . V8 Supervisor of Commodity Taxes is not clear. The griever -.-.I. undoubtedly suggested either an internal audit or review by the vendor, which may or may not have been agreed to. There may have been a misunderstanding or any assent given may have been' ,. subject. ~to approval by another officer of the vendor. What happened later is perfectly clear. The griever wrote V8 asking, among other things,for confirmation of what~had been agreed. This was a relatively innocent request: +,t often occurs between solicitors when one writes another seeking confirmation of an understanding thought to have been reached in a previous conversation. When V8 denied an agreement, three possible explanations were open to Mr. Haalboom: - 23 - (1) 'Ibere had actually been an agreement, now repudiated by Vz3; (2) There had been an honest misunderstanding about the conversation; or (3) NC-. Black stated dishonestly that agreement had been reached, knowing otherwise. Mr. Haalboom leaped to-' the third conclusion immediately. The second alternative above would be most charitable to both men concerned, but this does not seem to have occurred to Mr. Haaiboom. Instead, he chose to accept the version of the vendor against that of his own auditor. His harsh comment was that "such action calls into question the honesty of the writer." The comment was neither fair nor objective. Moreover, :. .., Mr. Haalboom made clear that the griever's acknowledgment of his error was written "at his supervisor's direction." Mr. Haalboom had visited V8 together with the griever and seems to have been "ery Ci"XlO"S to appease a vendor who was declining to conduct an internal audit of its procedures. 'He testified that when he visited V8 "they were not even willing to perform a review" - which suggests that their attitude was subject to change. It must be added that there may have been some confusion between the terms "audit"-. and "review". I" - 24 - : writing Mr. Haalboom on October 6, 1981, V8 said: As part of our ongoing commodity tax responsibil- ities we have conducted periodic reviews of our sales data originating at the various field admin- istrative control terminals to ensure compliance with Federal and Provincial tax requirement and we intend to continue these reviews in the future to ensure adequate controls and procedures' are being followed in accounting for these taxes. This is the only commitment we are prepared to acknowledge at this time, however, any tax payable arising from these reviews will be remitted with our monthly returns in the usual manner. Mr. Haalboom himself was not e'ntirely satisfied with such "reviews." In his letter to V8 of March 10, 1982, Mr.. Haalboom wrote: During our discussion of the accounting system for sales you. provided us with copies of your tax directives that are issued to managers and supervisors, they were found to be satisfactory. You described the system for the accounting of tax and pointed out that this is a relatively simple operation with a minor amount of tax collected therefore, your monitoring level was low. However, internal audit procedures require checking of the daily sales and cash and inventory reports. YOU did not mention any checks to verify the correct application of tax or that tax collected had been properly.recorded. We suggest the following be included in your program to ensure that tax is correctly charged, recorded and remitted: . The internal audit procedure for checking the daily sales and cash reports of service stations and restaurants should include a test check on the percentage of total taxable sales. - 25 - A program for the training of new staff on the correct application of tax and recognition of taxable merchandise should be implemented. A guestionaire to evaluate the tax knowledge of regular sales staff should be used by the internal audit group during their visits to service stations and restaurants. 'Ihe implementation of these suggestions should be made as soon as possible. The above "suggestions" which were to be implemented "as soon as possible" sound very much like the internal audit the grievor had been seeking some months earlier. Mr. Haalboom seems to have assumed that the vendor would comply. Before lea~ving this topic, it must be said that the V8 audit seems to have taken an inordinate amount of time. Mr. Clarke, when he was supervising the "conglomerates" (large vendors) had inquired about progress as early as October 31, 1980, Exhibit G44, Schedule L6. In his letter to Mr. Haalboom of October 6, 1981, the V8 Supervisor, Commodity Taxes, referred to "Mr. Black's thirteen month audit." .I I - 26 - : It is true that V8 was a very large company which had been undergoing expansion and there were undoubtedly some unusual problems. At one point in March, 1981, Mr. Clarke ordered the grievor to finish it promptly, then reported to Mr. Masse that "this file is basically un- satisfactory as completed," and said "the file will be pro- cessed as is." The assessment was then "Nil." This did not satisfy the Audit Supervisor. In May, 1981, the audit was resumed "with the objective of reviewing and assessing areas of fixed assets and purchases indicated by Paul Masse in his memo of May 5, 1981," Exhibit G55, REV-l. The result was a new land bulky file known as V8, Part 2, which is Exhibit G55. Another result was an assessment of $18,245.49. Mr. Haalboom took an active role in this audit, as previously mentioned, visiting the vendor together with the griever. He blames the griever for the error; Mr. Black says it was an . . arithmetic mistake within the Company. Even allowing for the fact that the grievor was assigned to other full-time duties in the latter part of 1980, and was, away on vacation in April, 1981, the prolonged and confused history of the V8 audit does not reflect credit on the'grievor or his supervisors. It u-ndoubtedly contrib- uted to Mr. Haalboom's exasperationwhen he assumed super- vision over the auditing of large vendors. In testifying, .~. - 27 - he went so far as to say he did not~think the grievor really understood the V8 system of accounting. In any event, it appears that tax in a considerable amount was due and payable by the vendor. The previous "nil )( assessment required correction because figures:previously given the grievor were erroneous, as the vendor conceded. The next group of comments appear under the heading "Technical Competence," being the category in which t.he previous rating and comments by Messrs. Clarke and Haalboom had been overiruled by the Deputy Minister. ThYs time Mr. Haalboom's comments were more cautious: M&-. Black has demonstrated some improvement in his documentation of his audit work. However much of his improvement can be attributed to much-closer supervision of his work during this period., For Mr.'. Black to maintain a satisfactory rating over his technical competence, he must demonstrate his ability to maintain and improve his documentation without close supervision. Mr. Black is one of the most experienced auditors in the Branch and is a.' p&fessionally qualified accountant. As such he,is expected to display a much improved level of technical competence. co11 can demonstrate such improvement by taking an overall systems approach to the audit of conglomerate vendors, limiting his time and testing to critical points in the system. Co11 is expected to put his expSrience and qualifications to good use in his audits of conglomerates by, for example, utilizing statistical sampling and computer assisted audit techniques whenever feasible. .-. .,.. - 28 - The above paragraphs acknowledge "some improvement" but attribute it to "much closer supervision." In other words, if there had been an improvement, credit was due to thee supervisor (Mr. Haalboom) rather than to the griever. The two paragraphs give the impression of being an attempt to justify the previous rating --- which had been over- ruled. The comments next appear under the heading "Organizing Ability." There are eight paragraphs referring to several different audits undertaken by the griever during the review period. on V12: The first paragraph gives some credit to his work :: As evidenced by his request for addditional time on his audit of VU, Mr. Black has demonstrated that he can, when he wants to, organize his audits so as to minimize his audit time. Specifically Mr. Black notes in his request that he has obtained the vendor's assistance in preparing information and working papers to support a tax liability over the vendor's own use of eguipnent on loan and service parts. The comments continue with the following paragraph: - 29 - However several actions by Mr. Black have demonstrated his unsatisfactory ability to organize. ~The next paragraph refers to V9. He failed to properly organize the work of an assistant performing an analysis of the tax liability account during the audit of V9. This resulted in theassistant spending excessive audit time with little contribution towards the audit. This was one of a-number of cornplaints made from time to time that the griever failed to give adequate guidance to juniors or students assigned~to help him. Some of the complaints seem to be justified, aithough it must be kept in mind that the auditornormally had several audits under way. at the same time, so that he could not watch continuously the work of a junior. The nature of the work often made it necessary to assign a particular task and then leave the junior alone to carry it.out. It is a cardinal rule that the auditor should organize his file in s.uch a way that all the work and its results can be readily understood by the supervisor nor reviewerwho reads it. Thus the files include a great deal of detail. Documents containing review comments and queries - 30 - together with the answers thereto are styled "REV I0 and normally appear at the top of the file. Correspondence with vendors and other letters are styled "L." Then appear a series styled "T'I which give details of all hours spent on the audit by the auditor and/or his assistant, if any, together with memoranda relating to requests for time in addition to the time originally allocated. The series styled "A I, includes documents relating directly to assessments calculated by the auditor --- ix. the assessments of tax liability. These often include directions given the auditor by his superiors --- and the auditor's replies or explanations. The latter may consist of many sheets and columns of figures derived from the vendor's books, as well as hand-written explanatory memoranda. For supporting documents the letters "C" or "J" or other letters may be used. In their testimony supervisors attached ,importance to the "T" sheets which disclose time spent and requested. This is summarily dealt with in the fo.llowing ,paragraph under the heading of Organizing Ability. The .hours stated in the original comments were not correct. They appear below as corrected by representatives of the employer at the hearings held by this Board: - 31 - Although Mr. Black was instructed to m.ake formal requests for additional audit time and to submit : his audit files for review upon reaching previously approved time, he did not do so during the audits of V12 and VllB. Gn VlZA he expended 65 l/2 hours without approval while on Vll he has used 54 unapproved hours. It is further apparent from the review of these files that Wr. Black's working papers contain little evidence that Mr. Black has planned the use of his time. T’: It is apparent that the griever was often late in applying for more time. In some cases it was inevitable that mpre time would be required. The original .time allocations were set arbitrarily by supervisors who could not possibly foresee the problems that might arise, particularly with vendors who had not been audited for sever.31 years, or not audited at all 'in the past. The griever's requests for more time seem to. have been approved --- sometimes with an order to speed up the, job. Another complaint by supervisors who testified was that the griever's reports showed too much "fractured time," i.e. work for an hour or two at two~or more different places on the same day. The griever's answer is that this is often necessary. The documents'he'needs to see or the person he needs to interview may not be immediately available, in I. ~',", which case the auditor must move on to another vendor. The result‘ is of course that a part of "working time" is actually travel time. - 32 - No infotmation was offered __- in 24 days of hearings --- as to the amount of additional time requested by other auditors. Indeed, with one exception, evidence ..:_- regarding the performance of others (.or the content of their files) was conspicuous by its absence. There is thus little or no way of. knowing whether their productivity or effic- iency wasany better than the griever's, i.e. whether his performance was average or below average. What is clear is that many features of his style of work irritated or annoyed his supervisors. The exception just mentioned arose in connection with the next paragraph in Mr. Haalboom's comments. It is as follows: WI-. Black's results of his efforts to clear defaults and collect accounts during the collection project demonstrate further a serious inability on his part to use his time effectively. Whereas other audit staff~cleared between 51 and 88 percent of the accounts assigned to them, Mr. Black cleared only 18 percent. .His work over a four week period resulted in only 8 accounts cleared - and those were of the easiest types to clear. Some ~of the statements above were~ not factual, as' Mr. Haalboom was eventually persuaded to admit. He had , - 33 - said at the outset of his comments that the griever had been "responsible to collect accounts and clear defaulted returns for 45 vendors," which is simply not so. In November, 1981, ~Mr. Haalboom presided over a project designed to assist collection officers in clearing payments and returns in default. Auditors were asked to concentrate on this project for three or four weeks. Mr. Haalboom gave the griever 45 files. However, the Compliance Office on the same day recovered 14 .files for its own purposes. The grievor says he visited four 'or five defaulters and made contact with all but two. Exhibit A-7 purports to be a statistical analysis of the results obtained by four auditors, including the griever. For some reason other auditors do not seem to have participated. Attached to A-7 are more than 60 sheets of supporting material, including many illegible entries and a number of comments by Mr. Haalboom: "no work shown by Black." Apparently he was not aware that the Compliance Office had recovered 14 files, and there were other changes. He failed to discuss the matter with the griever and in replying to the grievance against the A-Z appraisal, Mr. Haalboom re- fused to accept that there had been any change. When Exhi- bit A-7 was found unsatisfac,toyy, Mr. Haalboom pro'duced a revised analysis,, Exhibit A-16., reproduced on the next page - 33A - i c. BLACK EPA SEPTEMBER 1, 198, - FEHRORRY 28, ,982 Collection Statistics Auditor C. Black TAXII TAIII TAII TAII ACCO""tS ACCOUIltS Assigned with Cleared with Debit Balances # Balances # 5 1 7 6 9 5 11 8 Account ACCO""t $ ACCo"nt Balance % ACCOU"iS BalanCeS Bal?i"CeS Collected to Cleared Assigned $ Collected $ Assigne$ 20 $ 2,478.05 $ 152.67 6 86 S 2.514.64 $ 2.388.29 95 56 $ 4.118.89 $ 1.454.94 35 73 $ 34,628.51 $ 11,493.29 33 Total/Average Excluding Black 9 6 67 $ 13.754.0~ $ 5.112.17 37 Group~Total Including Black Group nverage Including Black 8 5 63 10,935.02 $ 3.872.30 35 tax known to be due, and also those who had failed to make the returns most vendors are required to make monthly. As could be expected, defaults were in varying amounts --- as low as $23.89 and as high as $50,141.05. Many of the large accounts seem to have been taken back by the i Compliance Office. Sheets CBla and CBZa in Exhibit A-7 showed that most accounts assigned to .the griever owed nothing but were in default with their returns. One had a ,8(-R II (credit) of $1,065.11, so that there was no money known to be owing. The griever's testimony is (as noted in his work- sheets) that some of the smaller vendors to whom he spoke claimed to be "out of business" or "bankrupt" or told tales of a "cheque in the mail." Exhibit A-16 does not indicate,outstanding success on the part of the griever. It does show, however '(as does A-7)i'that other auditors or the Compliance Office had been given larger accounts. Moreover, according to A-16,' the percentage of recovery for the other three auditors averaged 37 and, the percentage average for the group, including the - 34 - hereof. Changes produced a revised figure of 31 Defaulters included those who had failed to remit _ 35 - griever, was 35, which is not very different. On the whole, the picture presented by A-16 is not the. same as the impressioh given by A-7, which was part of the employer's original case. ^_ The griever testified that "Mr. Haalboom received my files when completed and I don't recall any file coming ._. back to me. The first criticism I had was on the E.P.A." --- which of course was given to~~him six months later. At' some point, however,;~.,Mr. Haalboom made many notes onthe work-'sheets to the effect that work had not been done by‘the~ griever. A better course for a supervisor would be to discuss the matter with the employee at once, not six months later. The next paragraph in A-2 relating to "Organizing Ability" is as follows: During the audit of W, Mr. Black did not follow his supervisor's instruction to follow-up with London District Office to ensure London's timely completion of its' portion of his audit. Such failure by Mr. Black could have seriously delayed ~the completion of the audit and resulted -in loss of assessable revenue if his' supervisor had not personally contacted London District Office and ensured its' completion of work. - 36 - The griever admits that he faiLed to make the call as instructed. He explains that being "in the field" he was unable to call London on a direct line, and he had no reason to suspect that London would neglect such an important audit. Mr. Haalboom's was putting the worst possible construction on the omission when he said that, .it "could ~,...: have seriously delayed the completion of the audit and resulted in loss of assessable revenue. 10 There is no ~evidence that the London office was a laggard. There was considerable tes~timony about the crit- icism levelled in the next paragraph: Further, Mr. Black has failed to record daily his location in the location book even though he was instructed to do so in writing by memo on October 29, 1981. The ~grievor admits he did not always. make the .F_, required entries in the location book. The reasons he gave in testimony were that (a) the office usually knew very well where he was working, (b) until the switchboard was expanded he often found it difficult or impossible to reach the office by telephone. He gave the latter reason in a rather irate memo tom his supervisor. On his part, Mr. Haalboom said it was important for the office to know where an auditor could be contacted. - 37 - The concluding paragraph in this group of comments is as follows: If Mr. Black is to obtain a satisfactory rating for his organizing ability he must make major ..improvements. None of the above noted actions can recur. -.~~ This was obviously.designed to put the griever on notice that his position was in jeopardy. Mr. Clarke had said the same thing in a letter to the griever some months earlier. The next group of comments are under the heading of "Communication Skills," for tihich the griever was rated Low Satisfactory. It is very briefs, but the Board considers it is probably more importan t than many of the other complaints made by supervisors: Mr. Black continues to demonstrate poor commun- ication skills in his documentation of audit files. Although instructed by his supervisor to keep his audit working papers up-todate and to complete his documentation of sections of the audit as he works on them, Mr. Black's work-in-process files on '411 and VlZ still lack neatness, clarity,. dates and sources of information. Mr. Black must strive to improve his written communication skills in his preparation of audit working papers. - 38 - The Board has bee" obliged to examine and consider a number of the voluminous files for which the griever was responsible, such as V2. V3, V5, V6, VT, V8, parts 1 and 2, v9 I Vll, V12A and V12B. Necessarily, much of the work done 0" a file is hand-written, as are the'queries and comments of reviewers. The kindest thing that can be said about these documents is that they are not easy to read. The griever's calligraphy is deplorable. Mr. Haalbdom's writing is often difficult to decipher and his language is almost as cryptic as the grievor's. On the other hand, Mr. Clarke's legible writing reveals that he was not schooled in Canada and his thinking is clearly expressed,.~ but his decisiveness in closing the V8 audit prematurely (and without consulting the grievor).,was unwise. AS previously stated, the cardinal rule,,about audit files is that they be so intelligible that they can be read and understood by a reviewer. This means that the problems encountered m"5t be explained as well as the reasons for decisions taken about tax liability, with copies of support- ing material derived directly or indirectly from the vendor's books and other information yielded by the vendor. .I" the case of a conglomerate --- a very large vendor like V8 --- the material used can be massive. - 39 - It is standard procedure for the reviewer --- whether a supervisor or the reviewer in the Standards Office --- to write comments and queries on the left side of a page. He may also give instructions and, if need be, express his disagreement with a decision reached by the auditor. It is then the duty of the auditor to write his replies or explanations on the right side of the page. In view of the criticism levelled at the griever's files, the Board asked for a file considered to be a model of Its kind. We were given V28, prepared in 1974. It has been noted that this file has two pa~ges of comments, the .first . being "overall file is very good." However, at least two corrections were required, and regrettably certain of the reviewer's comments.are illegible. Some of the supporting material is also illegible. On the whole it appears relatively neat and a well-organized file. Unfortunately, the samd:cannot be said,of the griever's files. Mr. Haalboom's very rational view was that an auditor should systematically build his file while the audit is in-progress, so that when the work is.,complete and he returns to the office there is little left to do except to draft the post-audit letter to the vendor. He cri'ticized the griever for a':,habit of assembling and completing a file after returning to the office. - 40 - It is not clear to what extent the griever complied with instructions. He gives the impression that after many years of experience he prefers to do the work his Own way and is not really convinced that his supervisors could do it a*Y better. The impression is fortified by the brevity of the written re-plies and explanations he often gave when answering queries or comments. The griever's unwillingness or inability to give .full and clear explanations undoubtedly irked Mr. Haalboom. It led to difficulties with the reviewing officer in the Standards Office. .b.' \ An example hasalready been given in the case of V9 'and the equipment which Mr. Haalboom considered was taxable only in part --- at least at the time. Other examples are to be found in V8 - Part 2. This file was reviewed by a Standards Officer, Mr. F. Mascarenhas. He made the.following sta~tement at,page 2 of his review commknts: I am in agreement with the auditor's contention that all the taxable spare parts included in the total of $1.027.173 transferred from the Project A/C to the Inventory A/C should have been assessed rather than just taxable parts purchased during the audit period. ., - 41 - Obviously annoyed, Mr. Haalboom added his own comment, directed to the griever. co11 - you must objectively describe the considerations taken into account in reaching this decision. If this were done this review comment would not appear. .,.. On the very next page is evidence of a.~ similar problem. The reviewer wrote: Sch. m-62 indicate taxable carts wrchased for the Lube Plant modification project, bn which charging of tax of $75,855 has been delayed. Sch. AB-62 indicates tax of $52~,600.estimated as unpaid on materials for the same project. It has been documented by the auditor that neither the interest on the delayed payments nor the unpaid tax has been. assessed on decision of Paul Masse. Mr. Haalboom again rebuked the griever: co11 - you m&t objectively describe the circumstances and considerations which led to the decision to forego revenue. If this were done no review comment would appear here. Mr. Haalboom's assumptions were that if his ~.' decision and Mr. Masse's decision had been explained more convincingly by the griever, they would not have been challenged by the reviewer. These are only assumptions but they cast all the blame for disagreement on the griever. ‘~ - -. - 42 - It is apparent from these and other entries that supervisors found fault with the griever when he failed to explain fully the reasons for decision~s taken by himself or his supervisors. This was particularly disturbing if the reviewer in the Standards Office happened to agree with the griever rather than with Mr. Haalboom or Mr. Masse. super- visors felt that the griever was too stubborn or un- . .~. cooperative to set out reasons for opinions he did not' share. The griever is inclined to give a short answer when the long one can be avoided. His failure to organize his files and write his answers in a form satisfactory to his supervisors helps 'to explain his strained .relations with them. It is unfortunate that he did not make sufficient efforts to meet their requirements in these areas. As previously mentioned, Exhibit A-Z, the E.P.A. complained of by Mr.. Black's grievance, had a fifth category entitled "Personal Factors." In it there are three factors. The second is "Adaptability," for which he' received the lowest possible rating, a 5, meaning "Poor." / ” - 43 - In this connection there were many references in testimony to changes in the policies of the Branch, coupled with assertions that the griever had either failed to accept such changes or had manifested reluctance to do so. Although Messrs. Clarke and Haalboom had little or no experience in supervising auditors prior to 1980, they insisted that standards for documentation had always been the same. Reference was made to such Exhibits as G-5, entitled "Guidelines For Documentation in Audit Files," issued by Mr. B.B. Gallop (then "Acting Chief Audit Supervisor") to "all auditors" on March 23, 1976. It was followed by Exhibit G-20, a memorandum on "Revised Audit Forms," issued on March 31,1977, by Mr. T. Benson, at that tim,e Manager - Field Operations. The latter was more detailed than the.former, but both gave rather .general instructions. Exhibits GlO, G14, G15 and GlE~.include-.-most of three chapters~in the Ministry Mannual. Chapter 3, "Audit -.. Report and Working Papers," goes into details,about documentation, but appears to have been substantially amended. None of the extracts or the amendments are dated. It must be said that most instructions therein relate to the - 44 - ,conduct of an audit rather than to documentation. The grievor testified that for many years ,: supervisors tended to accept without question the~results of his work and that theirreviews were somewhat cursory. With the arrival of Messrs. Clarke and Haalboom in '1980, reviewers became much more demanding: they were inclined to require meticulous documentation and often questioned the griever's judgement. This was a new experience for him, and it is obvious that he did not adapt successfully to the new order. There is no evidence that Mr. Peacock --- the grievor's supervisor for some time prior to 1980 --- ever .z found fault with his documentation, which is not without significance. Mr.Haalboom has conceded that Mr. Peacock's evaluation of the grievor was "positive," as shown by his contributionto the favourable appraisal for the period from July 1, 1979; to October 31, 1980,~ Exhibit G33, which was discussed early in this decision. The new emphasis on documentation was clearly signalled initially in a memorandum from Mr. Benson to "Dis- trict Managers," dated May 31, 1979, which stated, however, that "this material is an interim policy on file _. documentation" Exhibit G6. It seems likely that it inspired new and relatively inexperienced supervisors, such as Messrs. Clarke and Haalboom, to adopt very strict standards when reviewing audit files. It was not until March 4, 1982, however, that Mr. Paul Masse, Chief Audit Supervisor in the Toronto District, issued a memorandum, Exhibit G58 to "all audit supervisors" in which he said: On March 2, 1982, the attached documentation policy was accepted by our audit management group for immediate implementation at the Toronto District. The policy represents a concise restatement of existing Branch documentation policies. This policy should serve as both a training and reference guide as we continue~to enhance our pro- fessional image. As discussed the policy should~ be presented, discussed and implemented by each audit section no later than March 19, 1982. Romero Dias - Supervisor Standards, is available to Bttend section meetings as necessary to provide background in this matter. Please make those arrangements directly with Romero. Please let me know the arrangements you have made _ to.discuss this documentation policy with your audit staff. The instructions attached to G58 on three pages were ~concisely stated and'~clearly designed to facilitate the work of a rev~iewer. On the fourth,page appears only the following paragraph --~- worthy of note by the griever: - 46 - NEATNESS AND LEGIBILITY Neatness in working papers inspires the confidence of the taxpayer and the reviewer and reflects well on the auditor who prepared them. It is essential that all documentation be legible and capable of being copied. It must be pointed out, however, that the memor- andum quoted above was issued four days after February 28, 1982. Thus it was not available during the~period between September 1, 1981, and February 28, 1982, the period of the appraisal which is the subject of this grievance. The very fact that Mr. Masse found it necessary to issue such a memorandum on March 4, 1982, suggests that the new emphasis on documentation had not been adequately communicatea to auditors prior to that date. Another comment may be in order. In any compendium or commentary embodying detailed and difficult documentation, it would not be difficult -to discover discrepancies or defects, major or minor. This would be so whether it were a scientific treatise, an'audit file or even an arbitration decision. It becomes even easier to find fault when the reader is a sceptical critic, l.acking confidence in the judgement of the writer. Objectivity on the part of a reader his more difficult to achieve than I ! - 47 niatness or legibility on the part of a writer. An auditor usually works under time .limitations; he may be criticized, as the grievor was, for taking too much time to do his job. On the other hand, the reader --- a reviewer --- may be frustrated or exasperated by an untidy file, since. his time is also limited. There was another~ change of emphasis to which Messrs. Clarke and Haalboom attached great importance. They .- testified that the griever failed to.accept the change ---. or at least failed to adapt to its requirements. : According to the supervisors, Branch policy in 1981 and 1982 called for emphasis on gaining "future compliance" by an erring vendor, rather than on levying the "appropriate". assessment for unpaid taxes. Supervisors thought the griever continued to strive for assessments and ought to have shown more interest in ensuring "future compliance". There is an element of mystery about the whole matter of assessments. The Retail Sal&s Tax g&he;ates about 18 per cent of provincial revenues, ranking second to personal income taxes. There are many thousands of retailers and manufacturers who are required to hold permits to collectsales tax and to remit it---- as well as returns - 48 - --- to the R.S.T. Branch. It would seem important to bring in all revenue due from such an important source. Mr. Masse testified, however, that a staff of about 60 auditors in the Toronto office has been reduced by almost one half. The staff is so small that no more than three per cent of vendors are audited. It is impossible to believe that the other 97 per cent invariably pay all that is due. This does not mean that~most are cheating.the Treasury. Audits have shown that defaults are often caused by defective accounting procedures, untrained staff or genuine misund~erstanding ~of the Act and the Regulations thereunder. These include many complex-requirements as well as not a few exemptions --- which may change from time to time. In earlier years, according to the griever, there & was much emphasis on "time."- An auditor was expected to gene,rate more than sufficient money to justify the cost of his salary. On the other hand, according to supervisors, I the recent thrust of Branch policy is to educate and'skrve vendors, and above all to persuade them to adopt techniques. likely to facilitate "'future compliance." This, they argue, is more important thancollecting unpaid back taxes ----'or the interest thereon. - 49 - Mr. Haalboom said the grievor "concentrated on the past --- dollars rather than prospects." He explained that "the Branch has changed. There's a new emphasis on future compliance... He has not adapted." .In cross-exam~ination, Mr. Haalboom said the could not recall any written directive on the change of emphasis from assessment to ensuring future compliance. ' The Board was referred to Exhibit G22. That document, however, was not addressed to auditors. Dated June 17, 1980, it was addressed by Mr. Benson (in his capacity as Manager - Field Operations) to "District Managers." Moreover, there was no mention of a "change of emphasis." The guidelines attached were explained as follows: . .,- _ :. The procedures outlined in the guidelines are designed to assist in determining the reason(s) for a vendor's non-compliance and establishing a course of action for resolution of the problem. This will require, at times, the involvement of Group Leaders, Supervisors and Districts Managers as well as Auditors. Further, far from~ down-grading the importance of assessments, the forms 'provided included a space for "Recommendations," and a note explaining that: - 50 - This area willbeused only when an assessment is to be raised. The auditor will briefly describe the course of action he intends to take to raise the assessment and will estimate the additional time required. This must be approved by the Group Leader, Audit Supervisor and District Manager. Incidentally, the forms attached have a heading: "Analysis-of Assessment -from Audit and Resolution." There is nothing in G22 or any ,ofher document we can find authorizing emphasis on "future compliance" at the expense of assessments. The latter are not only authorized, they are required by law: the Retail Sales Tax Act, R.S.O. 1980, chapter 454, particularly Sections 16 and 17 and of course the Regulations under that Act. On his part-, the gr.ievor said he considered-both assessments and future compliance to be important. He denied neglecting the latter and claimed to have suc,h~good relations with vendors that he could get their co-operation. The only evidence to the contrary is his "misunderstanding" with an officer of V8. -The supervisors' enthusiasm for the new "emphasis" led to unfortunate differences of opinion.- For example, when the grievor was completing the second stage of auditing ~8, he proposed not only a substantial assessment butalso interest on taxes unpaid. - 51 - As other evidence has shown, and,as authorized by law,interest is chargeable on arrears of taxes. In the case of V8, Mr. Haalboom ruled that interest should not be charged. He considered (after his interviews with V8) that future compliance could be expected and held that it would not be "appropriate" to charge interest. This d~ecision was questioned by the reviewi~ng, officer in the Compliance Stan- dards office, and Mr. Haalboom then rebuked the grievor for. having failed to place an adequate explanation on the file. As previously mentioned, he wrote: "Co11 -- you must objec- tively describe the circumstances and considerations which led to the decision to forego revenue..." In his testimony, Mr. Haalboom gave this as an "example" of the grievor's "inflexibility." Mr. Black had failed to disguise his own opinion that interest was due and payable. The Board was troubled by Mr. Haalboom's insistence that "it is a supervisor's responsibility to assess or not assess." Whether to forego, i.e. forgive, revenue owing to the Crown is a very serious decision and it is questionable that any public servant has any right to make that decision. As a general principle, no person ;-- not even a public servant --- can perform any act on behalf of the Crown in Right of Ontario unless directly or indirectly authorized to do so by 'an Act of ~the Legislative Assembly or ~. .: - 52 - by a Regulation duly adopted~ thereunder. :Mr. Haalboom and the representative of the Ministry were invited more than once to cite any provision of the Act or the Regulations enabling any person to forgive a debt due to the Crown, but no such citation.was forthcoming. It is sometimes forgotten that al:1 citizens, including public servants, are subject to the rule of law rather than the discretion of individuals, whether or not such individuals believe their exercise of a ..~ non-existent discretion to be "appropriate." The E.P.A. complained of by the present grievance concluded. with three paragraphs underthe head ing "Other Comments." The first paragraph was as follows: Mr. Black will receive another formal evaluation of his performance for the three months ending May 31, 1982. Furthermore, Mr. Black will attend monthly meetings with his supervisor wherein his performance will be discussed. Due to the lateness in preparing this evaluation the first such meeting will occur in day, 1982. ' The above paragraph, must havebeen written carelessly (as Mr. Lukassen ought to have noticed) because the E.P.A. itself, purporting to cover the period from September 1, 1981, to February.28; 1982, was not completed until May 31, 198,2; and was given to the grievor on June'l4, as appears on its face. - 53 - The second paragraph read: Mr. Black is a graduate certified professional accountant. He has completed many postgraduate seminars in computer systems,economics, et cetera. He has over 12 years audit experience with the Branch. The "12 years" --- another example of carelessness --- should be corrected to read "almost 17 years." The third paragraph was: These factors lead to two conclusions; firstly, to the expectation of much more from Mr. Black than he .currently offers In his work, and secondly that Mr. .. Black is capable of improving his performance. Reference must.tiow be ma,de to the gualifications and experience of the five witnesses. Mr. D.H. Lukassen, a C.G.A. since 1972, joined the Branch in September, 1967, after some years of.experience with trust companies and other employers in the private sector. OnMarch 19; 1982, he assumed the duties of Regional Manager in the Toronto office. Thus he was not there during any of the period between September 1, 1981,, and February 28, 1982. Neverthel~ess, he approved the - - 54 - appraisal, obviously relying on the judgement of Mr. Masse and Mr. Haalboom. He said he was "very interested" in E.P.A.'s and wanted recognition of "both merits .and .,.'I. I; deficiencies." He had discussed drafts of the appraisal with supervisors and thought the final version was "fair and accurate." In cross-examination, he said he could not agree "that this is a particularly negative appraisal." He also said the delay incompleting the E.P.A. occurred because "Mr. Haalboom was seconded urgently to another office;" Mr. Paul Ma~sse also joi:led the Branch in 1967. Like all the other management witnesses, he has moved frequently from one position to another. In 1975 he became a C.G.A. and in 1978 was promoted to a head office position in a training capacity. In 1981 he was Chiefs Audit Supervisor in the Toronto office, then became Assistant Manager, but later in 1982 h,e took a Quality Control position and then went to the Peel District Office as Manager. When ,he testified in February, 1984, he was Manager in Mississauga. Points he emphasized were that taxes collected from purchasers are trust moneys until remitted to the Branch, and that penalties can be assessed against the vendor for failure to collect. Mr. Masse was Chief Audit supervisor when he - 55 - directed that the V8 audit be reopened in May, 1981. He was the author of several letters and memoranda to the grievor criticizing his work. In one meeting with the grievor a "personality conflict" (apparently with Mr. Clarke) was "discussed and assessed." An E.P.A., he said, "should or can be both positive and negative," and an unsatisfactory E.P.A. should be "followed up." A supervisor should spend 40 per cent of his time with auditors, but the auditors spend 80 per cent of their time with~vendors. Mr. Masse had approved G32, the appraisal for the period from November 1, 1980, to August 31, 1981, and he rejected the ensuing grievance. That appraisal was amended in part by decision of the Deputy Minister some months later. There is no doubt Mr. Masse's opinion was'somewhat affected by the history of the V8 audit, during which he reversed Mr. Clarke's decision to terminate it. However, by the time the second V8 audit was completed he had gone to other duties. His experience with the griever was only in 1981 and part of 1982. _. ;, .>-. Mr. Everton Clarke was not yet a C.G.A. when he testified in March, 1984, but he had completed most of the course. After an education in civil engineering he came to - 56 - Canada in 1961 and joined the Branch the following year. He rose rapidly from being a Clerk 2. to the level of a Tax Auditor 3, in 1973. From 1975 he func.tioned as a "Tax Specialist$and fin'-May, 1980, went to the Toronto District Office as an Audit Supervisor, but a year later became a . . "Service Supervisor." Mr. Clarke supervised the griever from May to August, 1980, Andy from January, 1981, until his departure three month,s later, when he was succeeded in the Large Vendors Section by Mr. Haalboom. Thus he supervised the grievor for a total of only about six months. Despite his rather limited experience in supervising auditors, Mr. Clarke had a great deal to say about the griever's work. In particular; he found fault with documentation, pointing to many of his very critical review comments, and he had no faith in the griever's judgement. His own judgement in terminating the V8 audit was quickly reversed by Mr. Masse. His strongest criticism was that the grievor sometimes failed to follow his instructions --- one..~of which was to terminate V8 immediately. It is significant that Mr. Clarke had a part in preparing the app~raisal for the lo-month period from November 1, 1980, to August 31 , 1981. His only experience with the griever in that period was from January to April, 1981, but he'considered.that in earlier months - 57 - (from August to December, 1980) when the grievor was away in the Hospitality Section, there had been neglect of audits previously assigned to the grievor,in the early part of 1980. Mr. Haalboom, then in charge of the Hospitality Section, said instructional duties there had priority, but also said older files usually have priority. These incon- sistencies do little to strengthen the case against the grievor. Obviously, it is inefficient to hold an employee responsible~to two different supervisors at the same time. For that anomaly, management rather than the grievor was responsible. Hs could not leave Toronto and continue the audit of V8 when he had full'time instructional and review duties with the junior auditors in the Hospitality Section, nor could he effectively super" i who did considerable work at V8 se his assistant, Mr. Pitel, Mr. John Haalboom is one of few (if any) in the Branch to be a C.A. as well~as holding a B. Comm (1975) and an M.B.A. (1983). There is no question a,bout his youthful energy, or his intelligence,and ability. Thus it is not surprising that he has advanced rapidly since being recruited in January, 1979, after some experience with a large accounting firm in the private sector. In 1982, he had, however, very limited experience in supervising Branch auditors. .: - 58 - Having supervised the griever throughout the whole of the period from September 1, 1981, to February 28,~1982, Mr. Haalboom became the principal authorof the appraisal now before us, Exhibit A-2. His testimony was given in great detail and cannot be discussed fully, but certain passages are worthy of comment. because they reflect,his attitude towards the grievor and also his understanding-of. the E.P.A. proces~s. Mr. Haalboom said that experience in auditing one large retailer can be useful in auditing others. The grievor is of the same opinion and considers that his long experience gives him an advantage in any audit. When heading the large vendors' section in 1981i82, Mr. Haalboom supervised from six to~eight tax auditors, each of whom would normally be responsible for several audits at one time. The supervisor selected firms to be audited and made the original allocation of time. .There would be a natural tendency to assign the most senior and ,expkrienced i auditor,the grievor, to large and important companies such as V9. Mr. Haalboom thought the grievor was "reluctant to follow instructions," referring of course to their - 59 - disagreements about the V9 assessment~and the forgiveness oft- I interest at V8. He insisted that documentation ought to have explained the reasons for such decisions. According to him, the grievor "did not think he should explain others' " decisions." The grievor's answer on this point was that Mr. Haalboom failed to explain such decisions clearly to him and gave rulings rather than explanations; The witness strongly criticized the griever's use of time and thought he was "out of control." Hereferred to the missing sentries in the 'location book and considered (as Mr. Clarke had thought) that requests for additional time were both belated and excessive. Mr. Haalboom having had no experience in auditing~large vendors himself, it is not. clear how qualified he was to judge the.time required Like Mr. Clarke, Mr. Haalboom was inclined to reject the grievor,'s explanati.on~s without.sufficient inquiry. For example, notwithstanding the griever's denials, he persisted in believing that 45 accounts had been assigned to ttie griever in the collection project until some time after the second stage ins the grievance.procedure. The witness thought Mr. Clarke's views in connec- tion with earlier appraisals were stronger than his own, and remarked: "Mr. Clarke.does make.absolute statements." - 60- cross-examined, Mr. Haalboom was not Certain ;.. ,,,hether the griever had been made aware of his shortcomings during the appraisal period --- apart from review comments and queries. . It is revealing, however, that he proposed on or wafter May 31 to do another appraisal for the period ~from March 1 to May 31. It would be physically impossible to discuss shortcomings during a~period which was already in , the past. Mr.Haalboom did not seem to be aware at the time that the proposal was inconsistent with the Ministry's E.P.A. standards.. In cross-examination, however, he admitted that "the Ministry requires advice before an E.P.A." Mr. Haalboom also conceded that some of the criticisms he made in his testimony had not been mentioned to the grievor "until now." The witness defended his decision not to assess interest against V8. He even said Mr. Black "could have recommended a write-off, but he didn't." He himself thought the vendor would be "upset" by an interest assessment, and he felt "it was appropriate not to assess because they were complying." This appears to- be a reference to future compliance, and its relevance is obscure. . . - 61 - Mr. Haalboom made a curious statement which appears' to confuse this appraisal with a previous appraisal by Mr. Clarke. Referring to the grievor's failure to document adequately reasons for his rulings, he said: "That occurrence and others with Clarke resulted in an Unsatisfactory rating for Judgement. Alone, it would not have had that result....if this were the only occurrence." Later, he also said: "I can't divorce myself from Clarke's opinions." Such statements tend impression that principally by ta to confirm the Board's king to each other Messrs. -Masse, Clarke and Haalboom arrived at a common opinion which was highly unfavourable to the grievor. There is insufficient evidence that they spent much. time talking to the griever or attempting to improve his performance. There. are many Indications of a failure to communicate betwee'n them and the older man. Moreover,, there is no sign that they recognized his long experience or thought he might have something of value to offer as they assumed new . responsibilities. Mr. Haalboom in testimony did, however, acknowledge that the grievor "had 17 years of.experience as 'of 1982," and that he himself had "no experience in commodity auditing of large vendors"~ when he took over that. section in April, 1981. - 62 - Mr. Haalboom was candid enough to admit an unfortunate rapport with the grievor: "I f.elt an undercurrent --- he felt I was not a capable supervisor --- but he never made such a statement. It was the feeling I had throughout a .two-year period. It's reflected in the E.P.A." It should be added that the grievor did not say in his testimony that any of the supervisors lacked capacity, but it is clear that he did not always agree with them --- and failed to hide it --- which was certainly resented by Mr. Haalboom. The latter said, referring to the V9 problem: "I got the impression he was reluctantly following my instructions." This eventually led to rather extravagant language in the E.P.A. that !'his supervisor was forced to assert his authority." Sudh language is an expression of insecur~ity rather than certainty on the part of a supervisor. There was also some strong. language in Mr. Haalbbom's testimony. Referring to the V9 assessment, the witness said the grievor's failure to place reasons on.the file '!.sabotaged my position." If he had explained his reasons fully to the grievor, and asked the grievor to put those reasons on the file, his statement might be justified. ,’ - 63 - Instead it appears that (as he said) he "asserted his authority." Mr. Haalboom conceded that "I felt he communicated well orally but I didn't say .so in the appraisal." He further agreed that there were both positive and negative aspects of the work on.V9. He was satisfied, however, by review comments on the V8, Part I file that the grievor's documentation was "poor." Mr. Haalboom deserves some 'credit for his candor. He did not pretend to be an impartial witness. He made clear that he regarded the grievor, whatever his experience and qualifications, to be an nnsatisfactory employee. The grievor himself was not a very articulate witness, being in the position of defending himself against countless criticisms, but he carefully refrained from attacking his critics. On occasion he admitted fault --- for example in spending "additional time" on Ann audit before asking authority to do so. Its is clear he had difficulty in adjusting his habits.to the new order being introduced by inexperienced supervisors who came and went.:with remarkable frequency. - 64 - It may be well to summarize the griever's experience. After wartime service in the British Merchant Marine he came to Canada in 1948. For the next two years he was a teller.with the Bank of Comme.rce. From 1950 to 1961,he served with Canada Railway News, first a&a book- keeper and then as accounting supervisor. He took a business equipment course with I.B.M.-.and then had a series of accounting jobs in supervisory positions with Cities _. _, Service, Canadian Admiral, the T. Eaton Insurance Company and the Toronto Board of Education. The griever was employed by the Ministry of.Revenue from October, 1965, first as a Tax Auditor 2, winning promotion to Ta.x Auditor 3 in January, 1969. At that time he was auditing a variety of vendors while a separate group audited the large vendors. From 1979, however, he was assigned to the large vendors, sometimes known as "conglom- erates" and also as "jumbos." From 1965 to 1979 he was designated as a "Group Leader," freque,ntly training and assigning duties to junior auditors. This included the preparation of a number of appraisals;:.He described the supervisors' role in those days as "consultative." - 65 - After several years of correspondence courses, the grievor became a C.G.A. in 1974. Thereafter he took courses at Seneca in E;D.P. programming and language, as well as systems analysis and microcomputers, thereby updating his previous I.B.M. course. He also took several Government courses in periods ranging from two days to one week. In his spare time he also acted as Treasurer of a ski club (which claims 3,000 members) and designed and installed a book-keeping system which may become computerized. In 1979 or later the so-called ."Group Leader" designation was "phased-out" and the grievor became known as a "senior auditor." However, his assignment to the Hospitality project in 1980 involved the work of a Group Leader or instructor because, instead of going out into the field, he taught juniors how to evaluate vendors in the light of information supplied by the L.C.B.O. as to the volume of liquor sold to retailers of that commodity. In his early experience, the griever said, supervisors relied on the judgement,of their auditors and emphasized that comment should be kept to a minim-urn. He acknowledged that from.1980 there was a demand for more detailed information in files. Standard forms were.devised to save time in some audits, but this was-not possible in - 66 - auditing large vendors. -From 198Lthere was more stress on i standardizing-documentation, which he attributed to "new staff," but he asserted that not all supervisors were consistent about it. There were mixed results, the griever said, when resorting to the aid of computers because some systems'were not compatible with others, and a ve~ndor would not always agree to it because an auditor's intervention could disrupt its own programming. As for his relations with Mr. Clarke, the griever said communication between them was minimal. He discussed a number of incidents compl~ained of by Mr. Clarke.and gave his own explanations, undoubtedly in more detail than Mr. Clarke 'was willing to hear. It is clear the're wars a~personality conflict which the grievor discussed with Mr. Masse. Similarly, Mr. Black gave his version.of incidents involving Mr. Haalboom, several of.,which have already been described. The griever said he was seldom questioned by Mr. Haalboom about problemson which Mr. Haalboom had a great de'al to say in his testimony. It is regrettable that much of what was discussed in testimony before the Board does not mu - 67 - seem to have been discussed by the two men in 1981 and 1982. Again, there was a breakdown of communication between them. With more effort on both sides it is probable that some problems at least could have been solved at the time and it would not have become necessary for this Board to hear evidence and argument for 24 days. .I Before stating our conclusions in this case, it is necessary to offer a melancholy observation. It is apparent that all the witnesses have admirable expertise in their chosen field, which is accounting and auditing, but they have demon- strated a remarkable lack of competence in the important area of human relations. The effective leadership of others is an essential ingredient of good management. Unfortunately, it is not evident in the appraisals which have been placed before us. As for the griever, his failure to satisfy supervisors seems to have arisen in part at least from a certain reluctance.to make those compromises and special efforts which.~many employees have found necessary in similar situations. It now becomes necessary to state conclusions arising from the vast body of evidence which we,have attempted to summarize. Many of the reasons for our conclusions have al- ready been indicated. - 68 - CONCLUSIONS By Section 18(2) in the Crown Eniployees Collective Bargaining Act it is provided as follows: In addition to any other rights of grievance under a collective agreement, an employee claiming, . . . . . . (b) that he has been appraise&contrary to the governing principles and standards . . . . . . . . . may process such matter in accordance with the grievence procedure provided in the collective agreement, and failing final determination under such procedure, the matter may be processed in accordance with the procedure for final determ- ination applicable under section 19. . . Section 19 provides for reference to arbitration and a final and binding decision by the Grievance Settlement Board. Thus the issue to be decided is whether the appraisal of the grievor for the period from September 1, 1981, to February 28, 1982, was "contrary to thee governing principles and standards." - 69 - Entirely reasonable and proper principles and stan- dards have been eYstablished in Exhibit G37, part of the Ontario Manual of Administration and also in Exhibit G13, a lengthy document adopted by the Ministry of Revenu.,e and entitled "Performance Appraisal System." These need not be set out in full, but there.are certain significant passages. The Manual of Administration defi.nes the'process as follows: Performance appraisal is a three-step process whereby a manager and an employee: 1) define the performance that is expected .:.,. of the employee during the next review period; 2) discuss performance on anongoing basis during the review pericd:.andd-~. 3) evaluate job~performance at the end of the review period. On the next page the-Manual sets out the "Primary Purpose" as follows: The primary purpose of performance appraisal .-- is to: improve performance; and/or maintain high performance levels. - 70 - The "objectives" are then stated: The objectives of performance appraisal are: to attain high performance levels by ensuring that employees know and are committed to achieving what is expected of them: . to assist employees to develop in their jobs through coaching, counselling and training; . to improve communications and work relationships between employees and managers; and to provide for a better understanding of organizational objectives. ,. Then there are the "Guidelines" in the Manual. It will be noted that they call for day-to-day discussion throughout the period...;. While this may not be always ; possible, it underlines the need for continuing contact between supervisor and supervised,--- and not merely an appraisal every few months. The following performance appraisal guidelines are pre- sented to assist in the development and implementation of effective performance appraisal programs: 1. &fine performance expectationswhich are: . set by manager and employee at the beginning of each review period: . re-examined during the review period'and revised where appropriate: . specific to each job; . consistent with the position description; . results oriented; . measurable. 2. Discuss actual performance with the employee on a day- to-day basis throughout the review period. 3. Base the evaluation at the end of the review period on the employee's work performance and acccmplishments. 4. Discuss the performance evaluation at the end of the review period with the employee and where the appraisal is written, provide the employee with a copy. 5. Includein the performance evaluation at the end of the review period a summary rating of the employee's performance so that the employee has a clear understanding of whether overall performance has exceeded, met or not met the expectations of the job. 6. Indicate, where performance expectations have not been met, what is required to meet these expectations and whether improvement has been demonstrated during the review period. 7. Include in the appraisal of managers, their operation of the performance appraisal program. The Ministry of Revenue in Exhibit G13 has in . effect reaffirmed the substance of the Manual's Guidelines. Two paragraphs in the Introduction are worthy of note: The Employee Performance Appraisal System.is to provide an assessment of an employee's work performance during a specific period of time, for the purposes offeedback from management to the employee, and as a tool for manpower development. - 72 - The assessment is to be objective, stating both strengths and weaknesses as shown by an employee's performance. It will emphasize skills and personal qualities which will be considered in regard to promotional opportunities, supervisory development, management training and rotation of staff from area to area for the expansion of desirable skills. . A significant statement appears at page 7: A vital consideration is the fact that it is unlikely that an individual can be completely outstanding in all factors or completely useless in all factors. In other words, all employees are complex individuals having both strong points and weak points, and this should-be reflected in the rating. Accordingly, itis expected that a staggered pattern will emerge in the degrees column, and any straight line pattern should be lodked at skeptically. Referring to the appraisal of employees performing at a professional level, it is said at page 11: The factors used for assessingthe performance of such employees are not inherently different from the fundamentals of any other performance appraisal system. However, the bias varies. More than any other, the completing of this form calls for a judgmental process. The conclusion si?a,ted at page, 13, is the following: ~. 1 - 73 - Ratings should be carried out because: 1) The employee has a right to know how he is doing. 2) Management must assess its staff to determine how best to develop the potential of. the human resources in its organization. Following a 1978 Audit Supervisors Conference, Mr. T. Benson issued a memorandum to "Distr.ict Managers," Exhibit G12, attaching an abbreviated transcript of the proceedings and also a copy of a paper apparently written by Mr. Ian Percy, a management psychologist. In it he expanded on the interaction between employees and appraisers and-made the following points: To complicate this interaction effect, a -performance appraisal is almost as much a comment. on the apppraiser as on the appraisee/'lhis means that the employee's personality, task and situation also interact with the same three variables on the part of the appraiser. We all know of an employee who, when assigned to Partner A, received consistentl:y negative appraisals. When reassigned to Partner B, however, the appraisal report was always positive. It is not likely chat the employee's personality changed, nor is it likely that he. or she was assigned a radically different task. Rather, the difference indicates that when the employee interacted with Partner B positive things happened. The difference lies in the interaction between two individuals. - 14 - Among the points mentioned in Mr. Benson's record of the Conferene were the following: 1) E.P.A.'s are used to develop employees. . . . . . 3) Comments on E.P.A.'s must be supported by facts... . . . . . 8) An E.P.A. must be honest. 9) The contents of an E.P.A. must not be a surprise to the employee. Ongoing discussions with the employee will ensure he knows where he stands. Clearly, the last point means that a deficiency of importance to the appraiser should not be mentioned to an employee for the first time six months later--- or at an arbitration hearing two years later. Exhibit Gil is a Ministry directive issued on March ._ 30, 1979, -reiterating some of the previous ..advice and - emphasizing that when performance is deemed unsatisfactory, a number of detailed steps should be taken,~ including interviews with the employee, full discussion, a commitment by the employee to make correction, all of the same to be fully documented. In other words, the Sup.erViSOr'S - 75 - i: responsibility is greater than merely composing a series of unfavourable appraisals. It is the conclusion of this Board that the appraisal now referred to arbitration was framed in ratings and language contrary to the principles and standards set out in the Manual of Administration and the Ministry of Revenue Guidelines. It is almost completely negative and reads more like an indictment than an E.P.A. I~f its was intended to "build a case" against the grievor, then that purpose was duly served. At the same time, the Board is of the opinion that there was fault own both sides. The uneasy interaction between employee and appraiser required lubrication. As already indicated; the grievor did not make sufficient e~fforts to meet demands which were new to him. On their part, supervisors (doubtless preoccupied by new responsibil- ities) made no serious effort to establish a good relationship with a very senior employee or to benefit from his long and varied experience. Speaking bluntly, all fhe witnesses before us displayed a substantial egotism, and there is ample evidence of personality conflicts. They were all given to "inflexibility," including the griever... who should learn the meaning of compromise. - 76 - For reasons hereinbefore stated, the appraisal which is Exhibit A-2 must be set aside and removed from the grievor's record as invalid. opinion arbitrati Nothing s,aid herein should be 'construed as an in respect of any other grievance.referred to on and not,,yet heard, each of which ,must be decided on its own merits. T.he~ Board wishes to acknowledge the patient, thorough an~d very competent efforts of Ms. Simpson and Ms. Cornish in assisting us to decide this diffic-ult case. ;. Dated at Toronto th ,i S 10th day of January ‘I .J985 Vice Chairman . R. Russell Member A / G.A. Peckham Member EBJ:sol