HomeMy WebLinkAbout2000-0319.Leung et al.01-07-26 DecisionONTARIO EMPLOYÉS DE LA COURONNE
CROWN EMPLOYEES DE L’ONTARIO
GRIEVANCE COMMISSION DE
SETTLEMENT RÈGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST, SUITE 600, TORONTO ON M5G 1Z8 TELEPHONE/TÉLÉPHONE: (416) 326-1388
180, RUE DUNDAS OUEST, BUREAU 600, TORONTO (ON) M5G IZ8 FACSIMILE/TÉLÉCOPIE: (416) 326-1396
GSB#0319/00, 0388/00
UNION# 00B194, 00B206, 00B207
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Leung et al, Guillermo/Chen)
Grievor
-and-
The Crown in Right of Ontario
(Ministry of Finance)
Employer
BEFORE Randi H. Abramsky Vice-Chair
FOR THE GRIEVOR Don Martin
Grievance Officer
Ontario Public Service Employees Union
FOR THE EMPLOYER Mary Pat Moore
Counsel, Legal Services Branch
Management Board Secretariat
HEARING December 11, 2000, January 22, 2001, March 26, 2001,
May 1, 2001, May 2, 2001, May 28, 2001, June 11, 2001.
AWARD
This case involves a group grievance filed by twelve Corporations Tax Auditors
in the Ministry of Finance, challenging the delay and subsequent cancellation of a
January 1999 job competition for seventeen (17) Senior Corporation Tax Auditor
positions. Specifically, the grievance alleges, in pertinent part, as follows:
Based on the posting from “Employment Opportunities” dated February
22, 2000 re: Senior Corporation Tax Auditor, I hereby submit my
grievance with respect to the cancellation of the competition for Senior
Corporation Tax Auditor [dated January 9, 1999]… My grievance is
based on ARTICLE 6 and applicable Articles of the collective agreement,
with respect to “Postings and Filling of vacancies or new positions.”
The foundation for the above grievance is:
- Management has not provided myself or others any explanation as to why
they delayed the competition and the subsequent cancellation of the
competition.
- The Ministry of Finance clearly indicates in their letter dated December
21, 1999 they intend to re-advertise for the same positions in the near
future. See attached copy of the re-advertisement made in regards to the
new competition, it is evident there has been no changes in the
qualifications required.
- The fact is the knowledge and experience required for a Tax Auditor Level
5 is identical to the previous position referred to as Financial Officer Level
5…
- It appears that this process has been orchestrated to accommodate
management’s desire to fill the positions with individuals who did not
previously apply to the March [sic] 1999 competition. This clearly shows
that management intends to discriminate against myself an others who had
competed in the last competition held in March [sic] of 1999.
- Due to the delay and subsequent re-advertisement, I have experienced
both anxiety and stress, which has produced an unhealthy working
environment, both for myself and my colleagues.
2
The “settlement desired” is “to have management continue with the previous competition
as there was no justification for its cancellation.”
The February 2000 competition proceeded and there were ten successful
applicants. Those incumbents were advised of this proceeding. Some attended the
hearing but none decided to participate.
Facts
On January 9, 1999, the Ministry of Finance posted for seventeen “Senior
Corporation Tax Auditor” positions in the classification of Financial Officer 5 (atypical)
(hereinafter “FO5”). The positions were to be in London (4 positions); North York (7
positions); Mississauga (1 position) and Oshawa (7 positions). The closing date of the
posting was January 29, 1999.
This posting was part of the second phase of the “Tax Integrity Program” (“TIP-
2”) designed to increase the complement of auditors to ensure corporate tax enforcement
and compliance. The TIP initiative began in the Fall of 1998 with an initial round of new
hiring. The posting in January 1999 was part of the second phase of hiring. In all, the
Ministry was seeking to hire approximately 500 employees under the TIP program. As a
result, at the same time as the posting for the Senior Corporation Tax Auditors, the
Ministry also posted for many other jobs, including 86 Corporation Tax Field Auditors at
the Financial Officer 4 (atypical) level, 42 Senior Field Auditors at the Financial Officer
3
4(atypical) level, 160 Field Auditors, Financial Officer 2 (atypical) level as well as a
number of managers.
One hundred forty (140) applications were received for the Senior Corporations
Tax Auditor, FO5 positions. All of the grievors applied before the January 29, 1999
deadline. Sometime thereafter, 39 of the applicants were advised that there would be a
written exam on March 1, 1999 which “will be used to screen out candidates to a
manageable number for interview purposes.” These applicants were advised that “[t]he
interviews will be scheduled later in March, probably the week of March 22-26” and that
the interview board would consist of three Group Managers at the AM-20 level. The
same group of managers had performed the initial screening of the applications.
One of the grievors, Steven Pestell, testified that he studied extensively on his
own time for this exam and then took the exam of March 1, 1999. He was not advised of
the test results. Richard Gruchala, Director of the Corporations Tax Branch, testified that
the test was marked in March and that eleven applicants successfully passed the test but
no one was interviewed.
The parties agreed that there were qualified applicants for the posted positions.
1. The Anderson et al. Decision
Director Gruchala testified that a number of intervening events led the Ministry to
postpone the FO5 competition. The first was that on March 2, 1999, the day after the
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FO5 written exam, GSB Vice-Chair Dissanayake issued his decision in OPSEU
(Anderson et al.) and Ministry of Finance, GSB No. 1677/93. That case involved a
group grievance by nine individuals concerning an FO5 competition held in mid-1993.
The Board ruled that the competition process was flawed. The Board concluded at p. 32
as follows:
It follows from the foregoing that the competition process was
significantly flawed. No personnel files were reviewed. Reference checks
were done only for the successful candidates, and even that, only as a
matter of confirmation. Thus the panel members deprived themselves of
valuable information that was available from these sources. In addition,
no objective assessment of the candidates’ relative equality was
undertaken. Due to the manner in which the test and interview were
structured and marked, a significant element of subjective assessment was
involved. Considering that some candidates’ work performance was well
known to the panel members, and considering the absence of any
information from personnel files and supervisors’ reference checks, the
subjective decision-making is likely to have favoured some candidates.
Indeed, the evidence strongly suggests that the panel took into account
little else besides the marks derived through this defective process.
The Board concluded that as a result of the flaws, the “employer did not properly assess
the candidates’ qualifications and ability in compliance with the collective agreement.” It
ordered the parties to “meet and attempt to agree upon an acceptable remedy at the
earliest possible date.” If no agreement was reached within 60 days, the Board would
receive further submissions on the issue of remedy.
Director Gruchala testified that the Anderson decision led the Ministry to put the
FO5 competition on hold. He testified that it “created uncertainty for us” not only in
light of its findings about the competition process but also because of the order to work
5
out a remedy. The Ministry did not know if such a remedy would impact the number of
FO5 positions available.
In mid-June 1999, the Union and the Employer reached an agreement on the
remedy in the Anderson case. Although the terms of that agreement are confidential, the
parties agreed that it reduced the number of FO5 positions available in the Mississauga
and Oshawa offices.
As to the flaws in the competition process identified by the Board in Anderson,
the evidence showed that the Ministry, in late November to early December 1999, hired a
consultant to revise the competition process. Director Gruchala acknowledged on cross-
examination, however, that the Ministry could have corrected the flaws identified in at
an earlier date. Personnel files could have been reviewed, references could have been
checked and the subjectivity concerns identified by the Board could have been corrected.
2. The New Class Series for Tax Auditors
In March 1999, a second intervening development occurred, specifically the
advent of a new class series for Tax Auditors within the Ministry of Finance. The new
collective agreement, which was signed on March 18, 1999, contains a letter of
understanding regarding “certain classification adjustments” to the Tax Auditors with
new salary ranges for each position.
6
The letter of understanding states that these adjustments “reflect adjustments to
address skills shortages as contemplated by Section 8(1)(e) of the Pay Equity Act” and
provides, in pertinent part, as follows:
Tax Auditors
The Employer shall develop a new Tax Auditor series and class standards
for the positions of Tax Auditors in the Ministry of Finance (currently they
are in the Financial Officer series, except for 4 employees in the Tax
Auditor series, level 3).
The new ranges shall have the following minima and maxima:
Min. Max % incr. over FO1-5
Tax Auditor 1 37,595 43,313 5.17
Tax Auditor 2 41,900 48,314 2.13
Tax Auditor 3 47,457 55, 919 6.90
Tax Auditor 4 51, 910 62,565 6.64
Tax Auditor 5 58,318 70,515 11.19
Steps will move by same percentages, and employees will remain at their
current step.
The 1999 general wage increase will be applied to the above ranges.
The exact timing of this is a bit unclear. The letter of understanding is dated June
25, 1999, but the creation of the new class series and salaries was clearly known much
earlier and was the subject of much discussion and concern, notably among the AM-20
Group Managers and management.
This is because the new salary levels for the TA5 position created a salary
inversion issue in relation to the AM-20s. The AM-20 Group Managers, who had
supervised the FO5s, were now being paid less than the TA5s.
7
On April 13, 1999, in order to deal with this situation, the Directors in the
Corporations Tax Branch proposed a restructuring of the field audit section. Under their
proposal, a new AM-21 management position, Senior Group Manager, CT Field Audit,
would be created and would supervise the TA-5s. The AM-20 Group Managers would
generally supervise the TA4s. This restructuring proposal was approved by Assistant
Deputy Minister Roy Lawrie on April 21, 1999.
Not surprisingly, this restructuring did not sit well with the AM-20 Managers.
Nine AM-21 positions were created and there were twenty AM-20 Group Managers. The
Group Managers also objected to the changes in the reporting relationships since the
TA5s would no longer report to them; only the TA4s would report to them which they
viewed as a negative change in their status and responsibilities.
Historically, Group Managers had been promoted from the ranks of the FO5s and
the FO5s had been promoted from the ranks of the FO4s. This was the natural
progression – FO4, FO5, Group Manager, and the Group Manager would supervise both
FO5s and FO4s. The combined effect of the new Tax Auditor salaries and the proposed
restructuring left the AM-20s at a lower salary level than the TA5s and supervising only
the TA4s.
On June 4, 1999, the Group Managers filed a grievance protesting the Ministry’s
restructuring and their compensation relative to the TA5s. The grievors sought to have
the competitions for the AM-21 positions deferred pending the resolution of the
8
grievance, or, in the alternative, suggested that all unsuccessful candidates should be
offered positions as senior field auditors (TA5s) without competition.
On August 5, 1999, Deputy Minister Bryne Purchase responded to the Group
Managers’ grievance. He determined that “management had the right to restructure the
way field audits are conducted within the Corporations Tax Branch, including the
definition of the responsibilities of managers, the assignment of staff to managers and the
distribution of work to audit groups.” He also found that there was no obligation to
compensate managers at a level higher than the highest paid bargaining unit employee in
their organization. He concluded as follows:
I have decided, therefore, that the implementation of the new reporting
structure and the relationships should continue and that competitions for
the positions of senior group manager should proceed. Any group manager
who is not successful in that competition should be considered in
competitions for senior field auditor positions. However, because of the
terms of the Collective Agreement, competitions for these bargaining unit
positions cannot be waived.
Your grievance is therefore denied. …
The Managers appealed the Deputy Minister’s decision to the Public Service
Grievance Board. On October 2, 2000, Vice-Chair John Willes declined jurisdiction and
dismissed the grievance. The decision is currently under judicial review.
Director Gruchala testified that the creation of a new class series was undertaken
because the Ministry, during the first phase of the TIP program in 1998, could not recruit
enough qualified personnel at the existing salary levels. Under the agreement,
incumbents in the Financial Officer series were “rolled over” into the new Tax Auditor
9
series at the same level. In other words, an FO5 became a TA5; an FO4 became a TA4
and so forth. Director Gruchala testified, on cross-examination, that there was no formal
training for the FO5s, as a group, regarding their responsibilities as a TA5. He testified
that training was left with the local managers to assess skill levels in regard to team
leadership and to address any shortfalls.
The parties dispute whether, in fact, the TA5 position differs from the FO5 one.
Director Gruchala testified that the TA5 position involves team leadership responsibilities
that were not required of the FO5s. He testified that TA5s are required to lead a team of
FO4 auditors in the field, as opposed to reviewing FO4 audits in the office before passing
them on to the Group Managers, and that there is a “much enhanced emphasis on leading
an audit team” – determining the work to be done, scheduling the work and monitoring
the work. He stated that while the FO5 position specification states that 50% of the work
involves “lead [ing] a team of auditors”, in fact that was rarely done. He testified that the
50% number was a “dramatic overstatement of the percentage regarding leading teams of
auditors.” Instead, it was “very infrequently” done. He summed up the difference by
stating that while both positions involved team leadership, for the FO5 that involved
reviewing the work of the FO4s in the office and was primarily a consultative role
whereas the TA 5 involves hands-on leading a team in the field.
The April 13, 1999 proposed restructuring of the Corporations Tax field audit
section developed by the directors, and approved by Assistant Depurate Ministry Lawrie,
amplifies this change. The proposal states, in pertinent part:
10
The FO5 level position specification currently includes team leadership
responsibilities which, according to advice from Human Resources
Branch, must be retained. Due to the change in reporting structure for
these staff, exercise of this responsibility will, of necessity, take on a
different form.
The proposal is to increase the use of TA4 Field Auditors under the
direction of the TA5s, especially in the field, in the completion of audit
files where the TA5 takes the lead on an audit and has one or more TA4s
working with him/her. This would become the prime manner in which the
TA5s would exercise their team leadership roles. Exercise of team
leadership duties in this particular manner has been an infrequent
occurrence in practice amongst all the CT field audit offices to date. …
The TA5s would cease to undertake technical reviews of all of the
completed TA4 files, as they currently do. AM20 managers, in
conjunction with their local SMG1, could, however, agree to have a small
percentage of TA4 files submitted to TA5s for technical review as deemed
appropriate or as circumstances warrant. For day-to-day technical advice,
the AM20 manager would be the TA4’s first contact point.
The TA5s would also have responsibility for providing training to new
and existing staff.
The Union did not refute Director Gruchala’s testimony about the different role of
the TA5 and no contrary evidence was offered. Instead, the Union relied on the content
of the position specification for the FO5 and that of the TA5. The FO5 position
specification clearly states that 50% of the job involves “lead [ing] a team of Auditors” in
the field, including “assist[ing] auditors in determining the scope of audit coverage, and
specific audit techniques to be applied”, “giving advice to the auditors on his/her team as
to any work to be performed, where required:, “reviewing working papers prepared by
the auditors on his/her team to ensure proper audit coverage” and “organizing, directing,
controlling and coordinating audit staff.” All of these are the type of duties required of a
TA5.
11
A close comparison of the remainder of the FO5 position specification and the
TA5 position specification reveals a similar identity of other duties and responsibilities.
Each duty and responsibility listed under the TA5 position specification appears in
substance, if not exact wording, in the FO5 position specification.
The skills and knowledge required of an FO5 and TA5, as set forth on the position
specifications, is also substantially similar. Both require a thorough knowledge of
accounting principles and auditing techniques acquired through completion of the CA,
CGA or CHA program; a thorough knowledge of the Corporations Tax Act, Income Tax
Act (Canada) and Mining Act; effective communication skills; good judgement, tact and
discretion to deal with taxpayers and their representatives while performing on-site
audits; the ability to lead a team of auditors and work effectively as part of the team; the
ability to train and provide guidance to junior auditors. Again, while worded differently,
the skills and knowledge required are essentially the same.
The minutes of the August 1999 Local Employee Relations Committee (LERC)
for North York discuss the impact of the new organizational structure. The minutes, in
pertinent part, state as follows:
2.3 Organizational Structure with the new AM21 position.
The Union wanted to know what the change in organization will be once
the AM21’s are hired. Management indicated that the FO5’s will report
directly to an AM21 or an SMG1. The FO5’s will still be in a team
leading capacity. …
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The evidence showed that the “FO5 Selection Criteria” differed from the criteria
established for the TA5 competition. The FO5 Selection Criteria” included the
following:
Auditing Knowledge and Experience 25%
Tax Knowledge and Experience 20%
Accounting Knowledge and Experience 20%
Research/Analysis/Problem Solving Skills 5%
Communication and Interpersonal Skills 18%
Planning and Organizational Skills 10%
Computer Knowledge and Experience 2%
The TA5 competition criteria, which was developed in December 1999, were as
follows:
1. Accounting/Auditing Competence 35%
-Expert knowledge of accounting/auditing theory,
standards and practices
-Working knowledge of ministry and branch policies
and procedures
-Ability to obtain, analyze, verify and evaluate complex
financial information.
2. Tax Legislation Knowledge 30%
-Working knowledge of tax legislation & regulations
(Ontario Corp. Tax Act, Mining Tax Act, Income
Tax Act)
-Ability to research/analyze tax legislation and
jurisprudence to support audit conclusions
-Working knowledge of ministry and branch policies
and procedures
3. Team Leadership Capability 20%
-Ability to plan, organize and coordinate activities of
audit teams according to established procedures and
deadlines
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-Ability to monitor/review the work of audit team
members and provide guidance and coaching to
individuals as required.
4. Interpersonal & Communication Skills 15%
-Ability to communicate clearly and clarify technical
and non-technical information to taxpayers,
representatives and internal ministry staff
-Ability to effectively manager interpersonal relationships
to ensure positive outcomes.
Director Gruchala testified, on re-examination, that he was concerned that if the
interview did not encompass team leadership skills then the competition would be
flawed. On cross-examination, he stated that he was also concerned that the interviewing
panel for the FO5 competition, which consisted of three AM-20 Group Managers, might
be biased because of the salary inversion problem and the proposed restructuring.
Director Gruchala testified that the directors within the Corporations Tax branch
discussed this problem in April 1999 but he could not recall whether this issue was
conveyed to Assistant Deputy Ministry Rob Lawrie who made the decision to cancel the
competition. He testified that he “may have” but he could not specifically recollect. The
directors discussed the possibility of changing the interview panel but were concerned
that changing the panel mid-stream would constitute a flaw in the competition process.
He was not aware of any GSB cases that held that changing the composition of the
interview panel would constitute a flaw. At this time, April 1999, none of the interviews
had taken place and the managers on the interview panel, along with all the other AM-20
managers, did not yet know how the restructuring issues would eventually be resolved.
3. Regional Boundaries Review and Allocation of Tax Files Within the
Corporations Tax Branch.
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According to Director Gruchala, a third intervening issue arose in the Spring of
1999. In April 1999, a proposal was initiated within the Ministry to establish new
regional boundaries to facilitate “one-stop shopping” for taxpayers. Instead of having
each statute branch have its own method of sorting taxpayers/accounts between the
various Regional Tax Offices, District Offices and head office, the goal of the regional
boundaries project was to establish common boundaries for all tax statutes – retail sales
tax, employer health tax, corporations tax and collections. In this way, a taxpayer would
contact the same office for tax information, audit discussions and collection activity,
regardless of the tax statute at issue. The results of this initiative, according to Director
Gruchala, would impact the resource allocation, i.e., manpower needs, of the various
Regional Tax Offices. It would impact the number of TA5s needed in each location.
Director Gruchala testified that this project further put the TA5 competition into a state of
uncertainty because the Ministry was no longer sure where it would wind up needing
employees.
On cross-examination, Director Gruchala acknowledged that while this initiative
would impact the location of staff, it did not impact the number of staff needed to do the
work overall. He stated that the staff complement has remained relatively constant.
Further, although the proposal was approved during the Summer of 1999, its
implementation was not fully completed in late 1999 when the FO5 competition was
15
cancelled, nor was it completed in February 2000 when the TA5 positions were posted.
In fact, implementation was still not ongoing in 2001.
At around the same time in April 1999, a review was undertaken within the
Corporations Tax Branch to determine how to allocate the Corporations Tax taxroll in
light of the creation of two new Regional Tax Offices in London and Ottawa, the hiring
of the TIP-2 staff, and the restructuring of field audit units due to the reclassification of
the tax auditor series. The final recommendations on this issue were submitted on
October 9, 1999. The report recommended some redistribution of audit staff between
offices, including the reduction of three FO5s from the North York and Oshawa offices
as well as an increase of two in London and four in Ottawa, but the total complement
remained the same. The proposal also affected the distribution of FO4 staff.
In mid-June 1999, two days after a settlement was reached in the Anderson
matter, a telephone conference call was arranged to discuss the status of the FO5
competition. Present during that call were Assistant Deputy Minister Roy Lawrie, Human
Resources Consultant Des Kirk, Director Gruchala as well as Mark Grimsditch, Director
of the North York Regional Tax Office and Dorothy Wright, Director of the Mississauga
Regional Tax Office. During that call, it was decided to keep the FO5 competition in
abeyance. Director Gruchala testified that the reasons for not proceeding with the
competition involved the restructuring issues, a concern that the job ad for the FO5 did
not mention team leadership, that the written questions on the March 1, 1999 examination
did not differentiate between the skill set required for the FO4 and FO5 positions, that
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they had not identified or articulated what makes one person significantly better since it
was not sufficient to be technically better since the focus had to be on team leadership,
that a grievance on these points would likely succeed, and that the benchmark set had not
been met by any of the candidates in Oshawa. His contemporaneous notes of the meeting
reflect those points except for the issue of restructuring. The notes are headed “Rationale
for not proceeding with current FO5 competitions.” On cross-examination, he stated that
the heading did not refer to why the Ministry should cancel the competition, but only not
to proceed at that time. He testified that he did not take notes of all of the discussion that
day but could not recall which parts were not noted.
The participants of the conference call also discussed that when the Ministry was
ready to proceed with the competition it would be limited to those who had applied in the
January 1999 FO5 competition. Director Gruchala testified, on cross-examination, that
the meeting discussed who would be eligible to apply for future competitions but gave no
further details. Director Mark Grimsditch testified that it was decided at that meeting to
continue to hold the FO5 competition in abeyance and that “when we proceeded, it would
only be open to those who applied in January 1999.” Director Grimsditch could not
recall the reason for that determination, but he was clear that the issue was discussed and
agreed upon.
Director Grimsditch testified that they decided to further delay the FO5
competition during the June conference call because a number of issues remained
outstanding and needed to be resolved before they could proceed. Specifically, he
17
mentioned the Anderson fall-out, the boundaries/resource requirements and the allocation
of files. He was not asked about the notes of the meeting made by Director Gruchala and
did not mention the items that were listed there.
By early November 1999, a number of the outstanding issues had been resolved
and Director Grimsditch wanted to fill the positions. On November 9, 1999 he wrote a
memo to Assistant Deputy Minister Lawrie concerning the “TA5 Competitions.” In that
memo, Director Grimsditch sought direction from the Assistant Deputy Minister
regarding how to proceed in light of the decision made in June 1999 that, when ready, the
competitions would proceed only with those who had applied in January, and the Deputy
Minister’s August 5, 1999 letter to the Group Managers which had stated that they could
compete for senior field auditor positions. This memo, in full, reads as follows (emphasis
in original):
Roy:
In early summer of this year as part of the discussions surrounding the
creation of the new Senior Manager Corp Tax (AM-21) positions a
conference call was held with you, Des Kirk, Richard Gruchala, Dorothy
Wright and myself. During this call the issue of the TA5-Senior Corp Tax
Field Auditor competitions underway at that time in Oshawa, Mississauga
and North York, was discussed. During the discussions it was resolved
that these competitions would be put in abeyance pending resolution of
such issues as Corp Tax boundaries and resource requirements in each
office; a review of the competition approach in view of the recent
grievance decision in Anderson et al; and, development of a new selection
criteria to encompass the duties of the TA5. At that time it was also
agreed that when we were ready to proceed the competitions would
only be open to those individuals who applied for the competitions
that were placed in abeyance.
We have now completed our review of boundaries and resource
requirements and determined that we only have up to seven positions
available in North York and none in the other offices.
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In the interim, the Corp Tax Group Managers (AM-20) grievances
regarding terms and conditions of employment was reviewed by Elizabeth
Patterson and the Deputy Minister’s response sent to the grievors on
August 5, 1999. In his response the Deputy Minister stated “I have
decided, therefore, that the implementation of the new reporting
structure and relationships should continue and that competitions for
the positions of senior group manager should proceed. Any group
manager who is not successful in that competition should be
considered in competitions for senior field auditor positions.
However, because of the terms of the Collective Agreement,
competitions for these bargaining unit positions cannot be waived.”
To date we have told OPSEU that the competition is in abeyance, not that
we intend to cancel it.
There is concern that if we proceed by inviting only the previous
applicants to reapply for the competition in North York the Group
Managers who were not successful in the Senior Group Manager
Competition may write to the Deputy Minister stating that we have not
followed through on his commitment. Conversely, if we do open up the
competition to others we will more than likely receive grievances from the
original applicants for the positions complaining that we opened up the
competition to give them to our managers.
I have spoken to Des Kirk on this subject and he is of the opinion that we
will get grievance [sic] no matter which way we go. He believes opening
it up (to include the managers) is defendable on the basis that the TA5
position is in effect a new position with a new selection criteria and that
the competition which we cancelled had similar flaws as the Anderson et
al grievance and management had to take steps to correct it.
Your thoughts would be appreciated.
Mark
Cc: Des Kirk
Director Grimsditch explained that they were considering running a new
competition and he was not sure whether the Ministry should stay with the original pool,
as agreed to in June, or abide by what the Deputy Minister had said. He, personally, did
19
not have a preferred course of action and made no recommendation to Assistant Deputy
Minister Lawrie. Instead, he outlined the facts for Mr. Lawrie’s consideration. He was
concerned that if the competition was not opened up, they would get complaints from the
Group Managers as well as other auditors who had not originally applied.
Mr. Lawrie, who is no longer with the Ministry, did not testify at the hearing, nor
did Human Resources Consultant Des Kirk.
On November 18, 1999, Director Grimsditch received an e-mail from Assistant
Deputy Minister Lawrie regarding the “TA5 Competitions” which stated “FYI. Please
proceed accordingly. Roy.” This e-mail attached another e-mail, dated November 17,
1999 to Roy Lawrie from Ed Farragher, Director Human Resources Branch, Ministry of
Finance, which states:
Roy:
Des has discussed the recommended approach with me and I agree with it.
Given the changes to the job responsibilities and the number of openings
now available, we can justify starting over with a new competition.
Ed
…
Based on this correspondence and direction, OPSEU was advised at the December 15,
1999 Ministry Employee Relations Committee (MERC) meeting that the FO5
competition had been cancelled. The minutes of that meeting state as follows:
3. Cancellation of Corporate Tax FO5 Competition
Management advised that in light of the Anderson et al. GSB Award, a
review of the outstanding competition for FO5 Sr. Corporations Tax Field
Auditors in various locations that were advertised in January, 1999 was
20
conducted and the competitions were put on hold. This review, in addition
to the introduction of new Tax Auditor class standards, and the review of
resource requirements in light of the regional boundaries project, caused
management to cancel the outstanding competition. Management
indicated that a competition for T.A.5 Sr. Corporations Tax Field Auditors
in selected locations would be posted in the New Year.
The day after the December 15, 1999 MERC meeting, Director Grimsditch was
asked by an OPSEU representative to communicate the cancellation of the competition to
affected staff because waiting for the MERC minutes would take too long. On December
21, 1999, a letter was issued by Human Resources Consultant Des Kirk, as follows:
This is to advise you that the above competitions have been cancelled. For
your information, it is anticipated that competition for Senior Corporation
Tax Auditors – TA5 in selected offices will be advertised in the near
future.
Prior to this, periodically throughout 1999, the issue of the FO5 competition was
discussed at the Local Employee Relations Committee (LERC) in North York. The April
14, 1999 minutes reflect discussion about the “FO4 and FO5 Competitions”, stating that
“Management stated that the CT FO4s competitions are nearly completed and that
reference checks are presently being done. Management expects to hold the FO5s
interviews in the near future.”
The August 11, 1999 meeting of LERC also dealt with the FO4 and FO5
competitions. The minutes state as follows:
The Union requested a status report on these competitions.
Management stated that the FO4 competition is complete and it resulted in
the hiring of three new staff. Management also indicated that there are
21
currently 31 FO4 vacancies. Three of these positions are DR positions.
The next round of hiring has been delayed due to the review of the class
standards by the Civil Service Commission.
The FO5 competitions are on hold until the issue of boundaries has been
resolved. Half of the competition is complete in that the written portion of
the competition has been completed. The union also raised the issue of
flaws in the prior competitions.
Management stated that every effort is being made to ensure that future
competitions follow established hiring practices.
The Union suggested that perhaps a number could be assigned for the
written portion of any competition to improve objectivity. The suggested
that this number could be assigned by the Human Resources Branch.
Management indicated that they will look into this.
Under the topic “New Collective Agreement for Tax Auditors in MOF”, the minutes state
that “the information was submitted to the Civil Service Commission by the due date July
31, 1999. All audit competitions are on hold because of this. Once the Civil Service
Commission approves the new class standards management will have more answers.”
The class standards for the Tax Auditor series were approved by the Civil Service
Commission on August 13, 1999.
At the November 17, 1999 meeting of LERC, the topic of the “TA4 and TA5
Competitions” was again addressed. The minutes state that “Management stated that the
TA4 competition is ongoing and that the TA5 competition is in abeyance at the present
time.”
22
According to grievor Steve Pestell, the Ministry did not officially inform him
about the delay in the competition or its cancellation until the December 21, 1999 letter.
He stated that he did not regularly review the LERC minutes.
4. The Restructuring of the Electricity Sector
Directors Gruchala and Grimsditch outlined a final reason for the delay and
cancellation of the FO5 competition at the hearing which involves the restructuring of the
electricity sector. The January 1999 posting for the FO5 positions in North York
included three positions for the auditing of the electricity sector which was slated to begin
making “payment in lieu” (PIL) of taxes. It was thought, at the time, that additional
FO5s would be needed in this area.
Director Gruchala testified that during discussions in October 1999, an issue
about who should perform this work arose and he was asked to inquire if Canada
Customs and Revenue Agency wanted to administer and perform this work. Director
Gruchala stated that memos about this issue went out in November 1999 and that he and
Director Grimsditch met with managers from Canada Customs and Revenue Agency in
January 2000. In early February 2000, the federal agency decided that it was not
interested in administering the program. Director Gruchala testified that this uncertainty
also factored into the delay/cancellation of the FO5 competition since it made no sense to
proceed when they did not know how many positions they needed to fill.
5. The February 2000 Competition
23
On February 22, 2000, the Ministry posted for “up to 9” Senior Corporation Tax
Auditors, TA5, in North York, seven TA5 positions in London and Kitchener, four TA5
positions in Ottawa-Carleton as well as two bilingual TA5 positions there. The
competition was open to “Ministry of Finance classified civil servants” within a 40 k
area. A total of 84 applications were received. A written test, which was substantially
different from the March 1, 1999 written test, was administered. Twenty-seven
applicants were interviewed. Ten applicants were successful. Seven of the ten were
former AM-20s who had previously been FO5s; one was an FO4; and two were from the
AMAPCEO bargaining unit. None of the grievors were successful.
Decision
At issue is whether the Ministry properly delayed and cancelled the January 1999
FO5 (atypical) competition for Senior Corporations Tax Auditors. The Ministry asserts
that it had four “sound and practical” reasons to delay and then cancel the competition
and that it acted, at all times, in good faith:
1. The Anderson et al. decision and the resulting settlement agreement.
2. The creation of the new Tax Auditor class series and standards, as set forth in the
new collective agreement, and the resulting reorganization and change in duties of
the Tax Auditor 5 position.
3. The Ministry-wide regional boundaries review and the reallocation of tax files within
the Corporations Tax Branch.
4. The restructuring of the electricity sector.
24
The pertinent collective agreement provision is Article 6, Posting and Filling of
Vacancies or New Positions. The relevant provisions include the following:
6.1.1 When a vacancy occurs in the Classified Service for a bargaining unit
position or a new classified position is created in the bargaining unit, it
shall be advertised for at least ten (10) working days prior to the
established closing date….
…
6.2 The notice of vacancy shall state, where applicable, the nature and title of
the position, salary, qualifications required, and the hours of work
schedule … Where a position is posted within the Ontario Public Service,
the internal notice of vacancy shall also state the work location where the
position currently exists, that the position is represented by the Union and
the particular bargaining unit which contains the position.
6.3.1. In filling a vacancy, the Employer shall give primary consideration to
qualifications and ability to perform the required duties. Where
qualifications and ability are relatively equal, seniority shall be the
deciding factor.
The jurisprudence, both within the GSB and in the private sector, hold that once a
position is posted, the employer may cancel it but only in limited circumstances. In the
absence of collective agreement language expressly permitting cancellation, a
competition may be cancelled when there are “sound and practical” reasons to do so.
Based on the case law cited by the parties, this generally means that a genuine mistake
occurred so that there is, in fact, no vacancy; or unforeseen developments beyond the
employer’s control occur after the posting, resulting in a change in circumstances such
that no true vacancy exists. In general, there is no obligation to continue when the
employer, acting in good faith and with bona fide reasons, has had to revise its position.
Brown and Beatty, Canadian Labour Arbitration, sets forth the basic principles at
5:2520 as follows:
25
Arbitrators have also recognized that in certain circumstances
management may properly cancel a posting prior to the position or
vacancy being filled, but not after a candidate has been confirmed in the
position. Thus, termination or withdrawal of a posting has been permitted
in circumstances where the posting was premature in that the expected
vacancy did not come into being, or where it had been made in error.
Others have held that withdrawal of a posting would be permissible if
management bona fide determined that the vacancy for which the posting
was made no longer existed. However, at least one arbitrator has
expressed the view that except where an error has been made, or where
frustrating or unforeseen circumstances have intervened, a job posting
could not be withdrawn simply because management had changed its
mind. On much the same reasoning, other arbitrators have held that once
the posting procedure has been instituted, it must be completed through to
naming the successful candidate…
Arbitrators, however, tend to be “very cautious in permitting such cancellations.”
Re Chilliwack General Hospital and British Columbia Nurses Union (1995), 47 L.A.C.
(4th) 270 at 279 (McPhillip). The reason for caution is the potential for abuse an
unlimited discretion to cancel a competition would involve. As set forth in Re Robb
Engineering, Division of Dominion Bridge Company Ltd. and United Steel Workers,
Local 4122 (1978), 20 L.A.C. (2d) 340, 347 (MacDougall):
The principle that says that once a job posting procedure is commenced “it
must be completed through to naming the successful candidate” appears to
make good sense on the face of it. The fact that if this were not so then
the procedure would be open to abuse is obvious. If the candidate who
was the obvious choice on seniority and ability for any reason, however
whimsical, was not pleasing to management then the procedures could be
aborted. This could thwart the intent of the seniority and ability provisions
of the collective agreement in a given situation.
The question then really is whether…the employer had sufficient cause to
terminate the procedures considering its good faith. …[T]he reason or
reasons for the termination must be sound and practical.
26
In the Robb Engineering case, the employer knew, at the time of the posting, that
the work to be done was going to be quite short-lived and agreed to the posting under
pressure from the union. A few days after the posting it realized that a successful
candidate would work only for one day in the new position and cancelled the
competition. It argued that it there was no longer any practical reason for continuing with
the competition. In the arbitrator’s view, the fact that the time involved was shorter than
first thought “does not appear to be sufficient reason in all the circumstances herein to
say the employer has the right to thwart the proceeding that it put in motion with the job
posting.” (p. 348). There was no error and no changed circumstances since the employer
knew or should have known the circumstances about the shift at the time of the posting.
In Marks and Ministry of Natural Resources, GSB No. 566/80 (Weatherill, Vice-
Chair), the Board adopted, in dicta, the “sound and practical” business reason standard
articulated in Robb Engineering. In that case, the employer posted for a position and the
grievor applied before the closing date. Another employee, a Mr. Gentile, was unaware
of the posting and did not apply. The employer interviewed certain applicants for the
position even though they did not possess the required “graduation for an approved
technical course in resource management.” It also did not interview a number of
candidates who met this qualification, including the grievor. The employer, realizing the
error, did not then interview the grievor or any other qualified applicant. Instead, it
cancelled the competition and reposted the position, at which time Mr. Gentile applied.
The only change in the new competition was that the phrase “…or an approved related
discipline” was added to the qualifications, a change which the Board found could have
27
appeared in the posting as originally issued. The employer then cancelled this second
competition because of some concerns about the interviewing committee and again
posted for the job in question. Once again, the phrase “or an approved related discipline”
was omitted from the posting. This time, Mr. Gentile won the competition and the
grievor, who was also determined to be qualified, came in second. At issue was whether
the Ministry properly cancelled the first competition. The Board ruled at p. 9:
In “cancelling” the original notice and “beginning again”, the employer
has in reality simply extended the time for making applications for the job.
The vacancy, we repeat, existed at all times, and the qualifications set out
were, for all material purposes, unchanged. Because of the employer’s
actions, however, the time for making application for that job was
extended well beyond the “established closing date” contemplated by the
collective agreement. The effect of this, of course, was to deprive the
grievor of consideration of his application together with those of other
employees made in the same competition and filed in accordance with the
terms of the competition.
The Board added at p. 11:
Reference may also be made to the Robb Engineering case 20 L.A.C. (2nd)
340 (MacDougall) where the question was said to be whether or not the
employer had sufficient cause, acting in good faith, to terminate the job
posting procedures. It was said that “sound and practical” reasons must
exist. The Board might well be inclined to support the employer’s actions
in a case that met those criteria. In the instance case, as we have indicated,
there was no sufficient reason to terminate the first competition. Qualified
candidates had applied within the time limits, the vacancy continued to
exist, and the qualifications (on the basis of the ultimate appointment)
were (insofar as they are material), unchanged. It should be added,
however, that there is nothing in the evidence to show that the employer
acted with deliberate bias or sought to discriminate improperly against the
grievor.
The “sound and practical” rationale was followed by the GSB in OPSEU
(McNally/Langlois) and Ministry of Transportation, GSB No. 1142/90 and 1143/90
(Fisher, Vice-Chair). In that case, a posting to which the grievors applied was cancelled
28
because only two qualified candidates applied. The job was subsequently reposted and
the grievors reapplied along with several new candidates, but the grievors were
unsuccessful. The Board ruled at pp. 5-6:
In this case, the only reason the Employer reran the posting was because
of some vague Government policy which required at least 3 candidates for
a competition. However, no evidence was led as to whether in fact some
Government policy actually existed, its rationale, or its application. In
these circumstances, we cannot find that this policy constituted a “sound
and practical” reason to rerun the competition.
In other GSB cases, the Board has examined the reasons for the cancellation of a
competition. In OPSEU (Magliocco) and Ministry of Correctional Services, GSB No.
213/93 at p. 25 (Finley, Vice-Chair), the Board held that “[t]he Employer is not restricted
by the Collective Agreement from cancelling a job competition, provided that the
cancellation is for bona fide reasons and the Board considers that ‘lack of funding’ would
fall within that category.” Similarly, in OPSEU (Felice) and Ministry of Correctional
Services, GSB No. 1304/93 (Stewart, Vice-Chair), the Board determined that the
employer acted reasonably when it cancelled a competition when the funding for the
correctional facility for which the posting was made was withdrawn. In contrast, in
Chittle and Ministry of the Attorney General, GSB No. 273/80 (Verity, Vice-Chair), the
Board determined that cancelling a restricted posting and then reposting it as an open one
was “improper and unreasonable.” In the Board’s view, the employer’s actions
improperly extended the posted closing date in violation of then Article 4.1 of the
collective agreement to the detriment of the grievor.
29
Other cases cited by the parties have held that a posting may be withdrawn by an
employer “for valid business reasons, provided that it acts in good faith and is not
motivated by an intent to deny any applicant the job opportunity.” Re Corner Brook
Pulp and Paper Ltd. and C.E.P., Local 60N, 73 L.A.C. (4th) 1 (Oakley), at p. 13. The
Board there continued at p. 13: “When considering the motivation of an employer who
[with]draws a posting, arbitrators have considered whether or not a vacancy continues to
exist after the job posting has been withdrawn.” Also relevant to motivation is whether
there was a “change in circumstances between the date of the posting and the date of the
withdrawal” as well as any evidence that the decision was based on the perceived
qualifications of the senior applicant. (73 L.A.C. (4th) at p. 14). In the Board’s view,
‘[t]he Employer must demonstrate valid business reasons why a new owner/operator [the
position in question] was not required.” In that case, the Board found that there was no
change in circumstances. It also determined that one of the reasons for withdrawing the
posting was that the employer did not consider the grievor to be qualified for the position.
Accordingly, it ruled that the cancellation of the posting violated the collective
agreement. See also, Re Corporation of the City of Toronto and Canadian Union of
Public Employees, Local 79 (1994), 42 L.A.C. (4th) 411 (Abbott); Re Foothills Provincial
General Hospital and Alberta Union of Provincial Employees (1999), 76 L.A.C. (4th) 371
(Moreau)
A similar determination was made in Re Chilliwack General Hospital and British
Columbia Nurses’ Union, 47 L.A.C. (4th) 270 (McPhillips). In that case, a posting was
cancelled after the grievor and one other candidate had applied. It was then reposted
30
several months later and the grievor lost to a more senior applicant (who had not applied
the first time). He was told, at the time, that he was not qualified for the position, which
gave “rise to very serious reservations concerning the reason for the cancellation and the
potential abuse of the posting process to avoid this employee using his seniority rights.”
The Board also determined that there were no “sound and practical” reasons for
canceling the posting. The reasons given for the cancellation changed over time. All of
the factors relied upon existed at the time of the original posting. There was no evidence
of any specific event between the posting and the date of its cancellation – no changed
circumstances or unforeseen developments. Indeed, the Board found that the position for
which the posting was withdrawn was “not cancelled at all; it was simply delayed and
filled two months later to the serious prejudice of this grievor.”
In Re International Chemical Workers, Local 798 and Union Gas Company of
Canada, Ltd. (1972), 24 L.A.C. 159, 165 (Lysyk), the Board, relying on Re U.S.W. and
Int’l Nickel Co. of Canada Ltd. (1965), 16 L.A.C. 216 (Lane), held that a “grievor has an
obvious interest in having his rights crystallized under the original posting simply
because he may well lose out to more senior applicants competing for the same job in the
future.”
Applying these decisions to the facts in this case leads me to conclude that the
cancellation of the January 1999 posting, although made in good faith, was improper.
Without a doubt, 1999 was quite a year for the Corporations Tax Branch in the Ministry
31
of Finance, one full of developments and changes. But at the end of the day, and for the
reasons set forth below, I conclude that a number of the FO5 vacancies which existed at
the time of the January 1999 posting continued to exist, and that the changes going on
during the year did not justify cancellation of the competition.
1. The Anderson et al rationale.
The first reason relied on by the Ministry for delaying and subsequently canceling
the January 1999 FO5 competition was the impact of the Board’s decision in Anderson et
al. Counsel for the Employer argued that Anderson was a stunning decision, causing the
Ministry to re-examine its competition process, a process that was not completed until
December 1999. She also argued that because the parties were ordered to effect a
settlement, it created uncertainty about the number of vacancies that might be affected by
the remedy in that case.
It is clear that the Anderson et al. decision, issued on March 2, 1999, was a
legitimate reason for delaying the January 1999 FO5 competition, but it was not a valid
reason to cancel it in its entirety. The Board in Anderson ordered the parties to meet and
attempt to agree upon an acceptable remedy within 60 days. It was likely that any
remedy might impact the number of existing FO5 vacancies, and in mid-June 1999, the
parties entered into a settlement agreement. Although the terms of that agreement are
confidential, the settlement impacted the number of vacancies available in Mississauga
and Oshawa. The settlement in Anderson et al. was a valid basis to cancel the
competition for those affected positions. Those vacancies, after the settlement, no longer
32
existed. The Anderson decision and the resulting settlement agreement was a “change in
circumstances” after the original posting and constituted a “sound and practical” business
reason for not continuing the competition as it relates to the affected positions.
But neither the settlement nor the decision itself constitute a valid reason to cancel
the competition in its entirety. This is because the settlement did not affect all of the
vacancies posted in January 1999. None of the North York positions were impacted.
Those vacancies continued to exist after the Anderson settlement.
Insofar as the Anderson decision itself is concerned, the evidence of Director
Gruchala was that the flaws identified there could have been corrected and I agree with
that assessment. Clearly personnel files could have been reviewed, references could have
been checked and the subjectivity concerns identified by the Board could have been
corrected. In addition, relatively equality could have been properly taken into account.
I also note that the Anderson decision did not result in the cancellation of the
January 1999 FO4 competitions. The reason why it caused the cancellation of the FO5
competition, but not the FO4 competitions, was not explained.
I also conclude that the flaws identified in Anderson did not irrevocably taint the
January 1999 competition as suggested in the November 9, 1999 memo. The procedure
used in Anderson was different than the procedure followed in the January 1999 FO5
competition. In Anderson, the written test score plus the oral interview score were
33
combined and then divided by 3 (for the number on the interview panel) to rank the
candidates. The written test formed part of the final score and ranking. In the January
1999 FO5 competition, according to Director Gruchala, the written test was used solely
as a screening device to test for technical knowledge and competence, a basic prerequisite
of both the FO5/TA5 position. There was no evidence that the written test would be
considered as part of the ranking process. The written test, moreover, appears to have
tested technical knowledge only, and no other factors. There was also no evidence that
negative marking was employed in the written test.
In addition, the subjectivity concern of the Board in Anderson centered on the fact
that the three-member interview panel was familiar with seven of the nine successful
applicants. That fact, combined with the fact that the interview panel had not reviewed
the applicants’ personnel file or references, caused the Board to be concerned about
potential bias in scoring the written test and oral interview. There was no evidence that
such a flaw existed in the January 1999 FO5 competition. Even if it did, review of the
personnel files and reference checks would largely have alleviated the concern.
The evidence shows that the Ministry did not hire a consultant to review the
competition process in light of Anderson et al. until late November 1999. It seems
possible that such a review could have been done earlier in the year.
At the arbitration hearing, Director Gruchala testified that the directors in the
Corporations Tax Branch were also concerned that the interview panel established for the
34
January 1999 FO5 competition might be biased because, with the proposed restructuring,
many of the Group Managers wanted the TA5 jobs themselves. He testified that the
directors discussed the possibility of changing the panel but were concerned that
changing it mid-stream would constitute a flaw in the competition process.
In my view, the potential bias of the panel might have been a legitimate concern
although, at the time, late March to early April 1999, the restructuring had not yet been
proposed. The Ministry’s response to the salary inversion issue might simply have been
to pay the AM-20s more and leave the existing structure alone. But even assuming the
Group Managers wanted the TA5 job, there is no evidence that the directors raised this
concern with Assistant Deputy Minister Lawrie in April when the issue was discussed
among the directors, or at any time thereafter. There is no evidence that it factored into
the decision by Assistant Deputy Minister Lawrie to cancel the competition. There is
nothing in the documentation submitted at the hearing that indicates that this concern was
considered at all.
Further, the case law indicates that an interview panel can be changed during a
competition. In OPSEU (Foster) and Ministry of Natural Resources, GSB No. 665/88
(Verity, Vice-Chair), a new position was created and posted and thirty-one applicants
applied including the grievor. A written test was given and those with the top five scores
were interviewed. The grievor was selected and his name forwarded to the Regional
Director for approval. Upon investigation, the Regional Director concluded that the
selection process was flawed and had to be set aside. He was concerned about “the fact
35
that a number of qualified applicants had not been granted an interview and that there
was insufficient emphasis on the planning focus of the job.” The Regional Director
appointed a second selection committee to review the applications and to “conduct a set
of interviews based on qualifications for the position.” This time, 14 applicants were
interviewed and this time the grievor placed fourth. There was no evidence that the
employer set aside the first panel’s results in order to discriminate against the grievor. In
the Board’s view, the Regional Director properly determined “that a number of
apparently qualified candidates should have been interviewed and were arbitrarily and
without reason denied that right” and that he “properly intervened to complete the
process in a reasonable manner.”
Accordingly, changing an interview panel during a competition is not necessarily
a flaw, and may, in a given set of circumstances, be required to ensure a proper
competition.
Finally, and this applies to all of the other reasons raised by the Ministry as well,
the Ministry had decided in mid-June 1999 that the Anderson et al. decision was a reason
to postpone the competition but not cancel it. The November 9, 1999 memo of Director
Grimsditch clearly states that during the June 1999 conference call, it was decided to put
the FO5 competition in abeyance “pending resolution of such issues as Corp Tax
boundaries and resource requirements in each office, a review of the competition
approach in view of a recent grievance decision in Anderson et al; and, development of
new selection criteria to encompass the duties of the TA 5. At that time it was also
36
agreed that when we were ready to proceed the competitions would only be open to those
individuals who applied for the competitions that were placed in abeyance.”
This memo clearly indicates that Anderson et al. and the Ministry’s review of its
competition approach were viewed as reasons to put the FO5 competition on hold, but
not to cancel it entirely. Thus, by mid-June, more than two months after the decision had
been released and after the settlement agreement had been reached, Anderson et al. was
not perceived by the Ministry as a reason to cancel the competition.
For these reasons, I conclude that the Anderson et al. decision was a valid reason
to delay the January 1999 FO5 posting until mid-June 1999, and to cancel the posting
insofar as the positions which were no longer vacant after the settlement agreement in
that case was reached. It was not, however, a “sound and practical” reason to cancel the
competition in its entirety.
2. The creation of the new Tax Auditor class series and the resulting changes in the
TA5 duties.
In my view, this issue is the most difficult one to assess. It is also critical because
if the new TA5 position is different than the FO5 one, then the “vacancies” which were
posted in January 1999 no longer existed and cancellation of the competition would be
proper. As noted previously, the case law permits an employer to cancel a competition
when changed circumstances result in the elimination of the vacancy for which the
posting was made.
37
The Ministry contends that the TA5 job is different than the FO5 one, involving
substantially more team leadership skills, and that it is therefore fundamentally a new and
different job. I have no doubt that the restructuring of the tax audit section, in light of the
creation of the new tax auditor class series, was bona fide. The TA5s were to act in
significantly more of a team leader role in the field. Although this work had been done by
the FO5s, it had been done “relatively infrequently” and far less than the 50% set forth in
the position specification for the FO5. The evidence of Director Gruchala to this effect
was not refuted.
But the question remains whether these new responsibilities lead to the conclusion
that it was, in fact, a different job. The letter of understanding contained in the collective
agreement refers to the change as a “classification adjustment” due to skills shortages.
Director Gruchala testified that the new class series was sought because the Ministry
experienced difficulty recruiting qualified employees during the TIP-1 phase at the salary
levels offered. To that end, the parties agreed that the Employer would “develop a new
Tax Auditor series and class standards for the positions of Tax Auditors in the Ministry
of Finance (currently they are in the Financial Officer series…)” and substantially raised
the level of pay. It further provided that “[s]teps will move by the same percentages, and
employees will remain at their present step.”
Thus the parties, through the collective agreement, treat the change as a
“classification adjustment” for the “positions of Tax Auditors in the Ministry of
Finance…” Employees in the FO1 through FO5 series were reclassified as TA1s through
38
TA5s. Their FO positions were not eliminated. Nor were any TA vacancies created by
this. The employees in the Financial Officer (atypical) series simply had their positions
reclassified and their pay was substantially enhanced.
The evidence shows, moreover, that team leadership was a part of the FO5 job.
While it may have more often involved a review of FO4 work, rather than leading a team
in the field, team leadership of the exact type required of a TA5 - leading a team audit in
the field - was clearly included in the FO5 position specification and was, on occasion,
done. The difference is one of degree and emphasis; it is not a wholly different job. As
set forth in the April 13, 1999 proposal regarding the restructuring, exercise of team
leadership responsibilities would “take on a different form.”
A review of the TA5 position specification and the FO5 position specification
further shows that the skills and knowledge required are substantially similar. The fact
that there was no specific training for team leadership when the changeover was made
also indicates that the skills and knowledge are essentially the same. While Director
Gruchala testified that training was left to local management, no evidence of additional
training at the local level was provided. If team leadership skills were a completely new
skill set, as the Ministry suggests, one would expect training in this area.
Further, the August 11, 1999 LERC minutes state, in response to the Union’s
questions about the role of the FO5s in the new organizational structure, that “[t]he FO5’s
39
will still be in a team leading capacity.” The use of the word “still” indicates that a team
leadership role existed before and was part of the job.
The Ministry, moreover, in numerous documents, equated the FO5s and TA5s and
used the terms interchangeably. In the April 13, 1999 memo regarding the restructuring
of the CT field audit section, one of the charts refers to the complement of “FO5s/TA5s”
and “FO4s/TA4s” in each office. The LERC minutes, as well as the November 9, 1999
memo from Director Grimsditch, refers to the FO5 competition as the “TA5”
competition. The October 9, 1999 report on the distribution of corporations tax field
audits refer to “FO5” and “FO4” positions, well after the time when the changeover to the
TA classification had taken place.
During the mid-June 1999 conference call with ADM Lawrie, Director Gruchala
testified that they discussed that the FO5 job ad did not mention team leadership and that
the written examination did not differentiate between the skills of an FO4 and FO5
because it dealt with technical knowledge, not team leadership. These were listed as some
of the reasons “for not proceeding with the current FO5 competition” in Director
Gruchala’s notes. There was concern that a grievance on these points might be
successful. Director Gruchala also testified that he was concerned that if the interview did
not include questions about team leadership, then the competition would be flawed.
Despite these concerns, the decision that was made in mid-June 1999 was to
postpone the January 1999, not cancel it. The decision was also made, as noted
40
previously, that when the Ministry was ready to proceed, the competition would only be
open to those individuals who applied for the competitions that were placed in abeyance.
The November 9, 1999 memo underscores that “development of new selection criteria to
encompass the duties of the TA5” was part of the discussion and rationale to place the
January 1999 competition in abeyance, not cancel it. Therefore, in the Ministry’s own
assessment in June 1999, the additional duties required of a TA5 did not require
cancellation of the competition.
Further, the concerns identified in June 1999 could have been addressed. Even
though the FO5 job ad did not emphasize team leadership, it did mention “organizational
and leadership skills” and the position specification clearly and quite predominantly
included team leadership responsibilities. Accordingly, the interview could have – and
should have – included team leadership questions. The selection criteria could have been
amended to reflect team leadership skills since they were clearly part of the existing FO5
position specification. As set forth in OPSEU (Foster) and Ministry of Natural
Resources, supra, the Board approved the creation of a second selection committee to
conduct a set of interviews based on the qualifications of the job which included a
planning focus that had not been taken into account in the original interview. Here, the
fact that the interviews had not yet taken place made this refocus entirely possible and
appropriate.
Accordingly, for the reasons set forth above, I conclude that the creation of the
new Tax Auditor classification, the resulting reorganization of the corporations tax field
41
audit section and change in responsibilities of the FO5 position did not eliminate the
“vacancies” which had been posted in January 1999. It changed their classification and
level of pay and it changed their responsibilities in terms of the emphasis on team
leadership, but it did not eliminate the positions. Nor did it require a material change in
qualifications. There was still an ongoing need for FO5/TA5 employees in the North
York Regional Tax Office.
Consequently, while the change in classification and duties was a new
development – although perhaps not an wholly unforeseen one – it did not result in the
elimination of the positions which had been posted in January 1999. Nor, in my view,
did the change in duties result in a material change in the required qualifications or skills.
Team leadership was part and parcel of the FO5 job and, as set forth in the August 1999
LERC minutes, the FO5s “will still be in a team leading capacity” under the revised
organizational structure. Accordingly, these changes do not justify the cancellation of the
January 1999 FO5 competition.
3. Regional Boundaries – Ministry-wide and within the Corporations Tax Branch
The third reason that the Ministry cites to support the cancellation of the FO5
competition was the Ministry-wide regional boundaries review as well as the review of
tax file boundaries within the Corporations Tax Branch.
The review of tax files within the Corporations Tax Branch was initiated in the
Spring of 1999 and was completed by early November. This is evident from the
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November 9, 1999 memo which states: “We have now completed our review of
boundaries and resource requirements and determined that we only have up to seven
positions available in North York and none in the other offices.” Accordingly, by early
November 1999, the review of boundaries and resource requirements was no longer an
unknown factor. At that point, it was no longer a reason to delay the competition and it
was not a reason to cancel it, except to the extent that it eliminated a posted position.
In regard to the Ministry-wide review of regional boundaries, that process was
approved during the summer of 1999, but it was not completed in 1999. Nor was it
completed in February 2000 when the TA5 positions were posted. In fact, at the time of
the hearing, the process was still not entirely complete. Under these circumstances, the
regional boundaries project cannot justify the Ministry’s cancellation of the FO5
competition.
4. The restructuring of the electricity sector.
The evidence showed that the Ministry’s uncertainty about the number of
employees needed to handle the restructuring of the electricity sector and the auditing of
their PIL payments did not take place until October 1999. It was not until October 1999
that the issue of who would handle this work – the federal government or the province –
was raised. Although this jurisdictional issue did lead to uncertainty about the number of
positions which needed to be filled, this reason was never cited as a reason for the
cancellation of the FO5 competition until after-the-fact. In none of the e-mails that went
to ADM Lawrie or that he sent to Director Grimsditch was the issue raised. Nor was it
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relayed to the Union at the December 15, 1999 MERC meeting in terms of the reasons
for the cancellation of the competition. There was no evidence that this matter was
discussed with ADM Lawrie in terms of the cancellation of the FO5 competition or that it
formed any part of the basis of his decision.
Accordingly, because this factor was not relied upon to cancel the competition, it
cannot be relied upon to justify that decision.
5. The Deputy Minister’s Commitment to the AM-20s.
The Union suggests that the real reason that the FO5 competition was cancelled
was because the Deputy Minister had assured the AM-20s that “[a]ny group manager
who is not successful in that [AM-21] competition should be considered in competitions
for senior field auditor positions.” The evidence presented suggests that this commitment
was a factor in the decision to cancel the competition.
The November 9, 1999 memo to ADM Lawrie reveals that the Ministry was faced
with quite a dilemma. It truly was in a “no-win” situation in which either its Group
Managers or the original applicants would be unhappy and would likely grieve. The
Ministry had initiated an FO5 job competition that had been held in abeyance for about
ten months pending resolution of a number of issues – the corporations tax boundaries
and resource requirements in each office; a review of the competition approach in view of
Anderson et al.; and development of new selection criteria to encompass the duties of the
TA5. In June 1999, it had been decided that when the Ministry was “ready to proceed the
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competitions would only be open to those individuals who applied for the competitions
that were placed in abeyance.”
In the interim, however, on June 4, 1999, the Group Managers had grieved the
Ministry’s restructuring and sought to have the AM-21 competitions held in abeyance
and/or to have the unsuccessful Group Managers placed directly into the TA5 positions
without competition. On August 5, 1999, the Deputy Minister denied the grievance, and
denied the request that the Group Managers be placed into the TA5 positions without
competition. He also stated: “Any group manager who is not successful in that
competition should be considered in competitions for senior field auditor positions.”
The November 9, 1999 memo points out these two conflicting positions to ADM
Lawrie and seeks advice on how to proceed. The memo continues:
To date we have told OPSEU that the competition is in abeyance, not that
we intend to cancel it.
There is concern that if we proceed by inviting only the previous
applicants to apply for the competition in North York the Group Managers
who were not successful in the senior Group Manager competition may
write to the Deputy Minister stating that we have not followed through on
his commitment. Conversely, if we do open up the competition to others
we will more than likely receive grievances from the original applicants
for the positions complaining that we opened up the competition to give
them to our managers.
I have spoken to Des Kirk on this subject and he is of the opinion that we
will get grievance[s] no matter which way we go. He believes opening it
up (to include the managers) is defendable on the basis that the TA5
position is in effect a new position with a new selection criteria and that
the competition which we cancelled had similar flaws as the Anderson et
al grievance and management had to take steps to correct it.
Your thoughts would be appreciated.
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On November 18, 1999, ADM Lawrie responded to Director Grimsditch,
directing him to “proceed accordingly” and attached a November 17, 1999 e-mail from
Ed Farragher stating that he agrees with the approach recommended by Des Kirk and that
“[g]iven the changes to the job responsibilities and the number of openings now
available, we can justify starting over with a new competition.”
This evidence suggests that a deciding factor in canceling the FO5 competitions
(and thereby opening it up to the managers) was the commitment made to the Group
Managers by the Deputy Minister. All of the other issues – the regional boundaries and
resource requirements, Anderson et al., and the TA5 selection criteria - had been
considered in June and had not led to cancellation of the competition. The only new
factor raised in November 1999 was the commitment made to the Group Managers. The
Ministry could have opted, as it originally decided in June 1999, to proceed only with
those individuals who applied for the competitions that were placed in abeyance. It chose
not to do so and felt that the decision to cancel the original competition was “defendable”
and that starting over could be “justified”.
There is no evidence to suggest, and the Union does not allege, that the Ministry
made this decision in bad faith to thwart the original applicants. Its goal may well have
been, as it asserts, to be fair to all of its employees – the original applicants, other FO4s
who may not have applied and the Group Managers. Indeed, I specifically find that
Director Gruchala and Director Grimsditch, both of whom testified fully and candidly,
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acted in good faith at all times. But the result of the Ministry’s decision to cancel the
competition and start over was to seriously prejudice the rights of the grievors. That is
because the competition was now open to a group of very highly qualified managers who
had previously held the FO5 position and had managed both FO5 and FO4 employees.
None of theses managers had applied in January 1999. It is not at all surprising that
seven of the ten TA5 positions were awarded to Group Managers.
The resulting situation is similar to that in Marks and Ministry of Natural
Resources, supra, where the Board ruled at p. 9:
In “cancelling” the original notice and “beginning again”, the employer
has in reality simply extended the time for making applications for the job.
The vacancy, we repeat, existed at all times, and the qualifications set out
were, for all material purposes, unchanged. Because of the employer’s
actions, however, the time for making application for that job was
extended well beyond the “established closing date” contemplated by the
collective agreement. The effect of this, of course, was to deprive the
grievor of consideration of his application together with those of other
employees made in the same competition and filed in accordance with the
terms of the competition.
In sum, although 1999 was a year full of changing circumstances and
developments within the Corporations Tax Branch of the Ministry of Finance, the
January 1999 postings for Senior Corporations Tax Auditor continued to exist, at least in
the North York Regional Tax Office. The four reasons cited by the Ministry to justify the
cancellation – (1) the Anderson et al. decision and settlement; (2) the new TA class series
and standards as well as the resulting reorganization and change in duties of the TA5
position; (3) the Regional Boundaries and resource allocation review and (4) the
restructuring of the electricity sector – did not constitute “sound and practical” reasons to
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cancel the competition in its entirety. Some were valid reasons to delay the competition
and to cancel it insofar as positions originally posted were eliminated. But for all of the
positions that remained – specifically the seven in North York – the competition should
not have been cancelled. The Ministry violated the Article 6 rights of the grievors when
it cancelled the competition and reposted for the same positions in February 2000.
Remedy
When a violation has been found, the goal is to put the grievors, to the extent
possible, in the same position that they would have been in had their rights under the
collective agreement not been violated.
The normal remedy in a case like this is to declare the second competition, the
February 2000 one, to be a nullity and to order the Employer to proceed with the original
competition. My concern about that is the potential disruption such an order might have
on the operations of the North York Regional Tax Office.
Depending on existing and upcoming TA5 vacancies, an alternative might be to
proceed with the January 1999 competition and have the seven successful candidates fill
the next seven TA5 vacancies, with a monetary top-up until such time as they are able to
assume such positions. The number seven relates to the number of FO5 positions
remaining in North York as set out in the November 9, 1999 memo.
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There is also an issue of back pay for the seven successful candidates from the
time the TA5 positions were filled from the February 2000 competition until now.
Although the Ministry asked for a specific order, rather than a direction to have
the parties seek out a settlement, the parties may be able to design a remedy which is
satisfactory and less disruptive to the Ministry’s operations. For example, there may be
TA5 vacancies in other offices which a successful candidate might prefer. Accordingly,
the Board directs the parties to meet and attempt to agree upon an acceptable remedy at
the earliest possible date. If no agreement is reached within 60 days from the date of this
Award, the Board will reconvene at the request of any of the parties to receive further
submissions on remedy.
The Board will remain seized for that purpose.
Conclusion:
1. For all of the reasons set forth above, the Board concludes that the grievors’ rights
under Article 6 were violated when the Ministry cancelled the January 1999 FO5
competition in its entirety. Although the reasons relied upon by the Ministry, except
for the restructuring of the electricity sector, justified a delay in the competition as
well as cancellation of the competition insofar as the FO5 positions which were
eliminated by the settlement in Anderson et al. and the reallocation of tax files, they
did not constitute “sound and practical” reasons to cancel the competition in its
entirety. Despite all of the changes that occurred in the Corporations Tax Branch in
1999, seven (7) FO5/TA5 positions remained in the North York Regional Tax Office.
2. The Board directs the parties to meet and attempt to agree upon an acceptable
remedy. If no agreement is reached within 60 days from the date of this Award, the
Board will reconvene at the request of any of the parties to receive further
submissions on remedy.
3. The Board remains seized for that purpose.
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Dated at Toronto, this 26th day of July, 2001.
Randi H. Abramsky, Vice-Chair.
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