Loading...
HomeMy WebLinkAbout2000-0319.Leung et al.03-07-09 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 0319/00 0388/00 0974/00 1112/00 1182/00 1247/00 1248/00 UNION# OOB 194 00B206 00B207 00B343 00B344 00B345 00B346 00B365 00B374 00B404 00B405 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Leung et al ) Grievor - and - The Crown In RIght of Ontano (Mimstry of FInance) Employer BEFORE RandI H. Abramsky Vice-Chair FOR THE UNION Helen Ecker Labour RelatIOns Consultant Mimstry of FInance FOR THE EMPLOYER Don MartIn Gnevance Officer Ontano PublIc ServIce Employees Umon HEARING September 4 & October 31 2002 May 26 2003 2 AWARD ThIS Award follows an earlIer Award dated July 26 2001 whIch found that the January 1999 competItIOn for seven FInanCIal Office 5 (AtYPIcal) posItIOns In the North York RegIOnal Tax Office was Improperly cancelled. That Award dIrected the partIes to attempt to agree upon an acceptable remedy On July 15 2002, the Board Issued an Order on consent, whIch set out the partIes' resolutIOn of the gnevance Paragraphs 2 and 3 of that Order provIde as follows 2 The employer makIng use of the best InfOrmatIOn avaIlable to It wIll, In good faith, select the 7 gnevors In the Chen et al and Leung et al gnevances, who are not now employed as Semor CorporatIOn Tax AudItors, and who are, In the employer's OpInIOn, most qualIfied to fill posItIOns as Semor CorporatIOn Tax AudItors, and wIll classIfy and pay those gnevors as Semor CorporatIOns Tax AudItors at the Tax AudItor 5 level effectIve July 1 2002 3 The employer's selectIOn of the 7 gnevors wIll be final and shall not be the subJect of any gnevance on the ments or that Involves a companson among gnevors' qualIficatIOns I remaIned "seIzed wIth respect to any dIsputes concernIng the ImplementatIOn of thIS agreement. " After the Employer selected the seven employees, an allegatIOn arose that the selectIOn could not have been made In good faith. ThIS Award addresses that Issue Facts The partIes stIpulated that the decIsIOn regardIng the selectIOn of the seven Semor CorporatIOn Tax AudItors, as set out In paragraph 2 of the July 15 2002 Order was based on the folloWIng documents 1 The gnevors' performance appraisals 2 The gnevors' resumes 3 The gnevors' score In the wntten portIOn of the cancelled F 0 5 competItIOn. 4 The gnevors' performance In the Tax AudItor 5 competItIOn. 3 5 The gnevors' Inventory Status Summary Reports, or theIr eqUIvalent InformatIOn, whIch Includes, for 2000 2001 and 2002, the number of files completed, the SIze of the file, and tax recovery The seven selected gnevors were Edmund Wong; Joseph Fung; Sandra MolInaro Maunce Gabay Mary GraJner CarmIne MascIangelo and Albert Leung. The gnevors who were not selected Include ChnstIna Chen, Manuel GUIllermo Steve Pestell ShamIn RatansI Jerry Margel and FelIx Savundra. The exhIbIts and documentary eVIdence provIded by the partIes are summanzed below PartIcular attentIOn IS focussed on Mr Pestell and Mr Gabay In lIght of the Umon's questIOmng ofMr Gabay's selectIOn over that ofMr Pestell A. Performance Appraisals 1 Mr Pestell Mr Pestell's performance appraisals for fiscal year endIng March 31 2002, rated hIm at the hIgh-end out of three categones under the headIng "meets reqUIrements" In regard to "Key Job ReqUIrements" His overall assessment was also at the hIgh-end of "meets reqUIrements" His supervIsor Doug RobInson, wrote the folloWIng comments In Mr Pestell's 2002 evaluatIOn Steve IS able to work Independently wIth a mImmal amount of supervIsIOn. He does however keep hIS manager Informed of outstandIng audIt Issues He partIcIpates at all group meetIngs and Interacts well wIth hIS colleagues His audIt files are submItted for reVIew In a tImely manner and ensures all workIng papers and admInIstratIve documents are properly completed. In terms of the second sectIOn of the performance appraisal, "Key Job ExpectatIOns" Mr Pestell was ratIng at the hIgh-end of "meets reqUIrements" Mr RobInson's wntten comments state 4 Steve has prepared audIt plans at the commencement of each audIt and maIntaInS contact logs for all audIt assIgnments His tIme spent on audIts IS commensurate WIth the dIfficulty of the file and any tIme over-runs are dIscussed wIth hIS manager Mr Pestell receIved the same ratIngs In hIS performance appraisal for fiscal year endIng March 31 2001 In regard to the sectIOn "Key Job ReqUIrements" The second sectIOn, "Key Job ExpectatIOns" was not completed. The supervIsor's wntten comments state as follows Steve JOIned my audIt group In February 2001 Steve IS an enthusIastIc employee who has worked Independently on numerous audIts dunng the penod covered by thIS reVIew His files are completed In a tImely manner Steve IS a good commumcator He keeps hIS manager Informed of audIt Issues and partIcIpates openly In group meetIngs Mr Pestell's only other performance appraisal was for fiscal year endIng March 31 1998 In thIS appraisal, Mr Pestell was rated In the mIddle-category of "Meets ReqUIrements" In terms of Key Job ReqUIrements, and the same In regard to Key Job ExpectatIOns, wIth one exceptIOn In whIch he was rated at the hIgh-end of "Meets ReqUIrements" The wntten comment states "Steve IS an able audItor who could enhance hIS contnbutIOn to the umt by applYIng hImself" 2. Mr Gabay Mr Gabay's performance appraisal for fiscal year endIng March 31 2002 rated hIm In the mIddle category of "Meets ReqUIrements" In regard to Key Job ReqUIrements, wIth the IndIVIdual ratIngs varyIng between the low and hIgh end of that category One category was at the low-end, three were In the mIddle and two were at the hIgh-end. The second sectIOn, Key Job ExpectatIOns, was not completed. The supervIsor's wntten comments were as follows Maunce has the potentIal for handlIng IncreasIngly more complex files He gets along well wIth hIS coworkers and can handle dIverse kInds of assIgnments His 5 file productIOn needs to be Improved. He has processed some of the files wIth hIgh audIt tIme and no recovery Mr Gabay's 2001 evaluatIOn also rated hIm In the mIddle of "Meets ReqUIrements" and the IndIVIdual categones range from the low-end to the hIgh-end. The second sectIOn of the evaluatIOn, Key Job ExpectatIOns, was not completed. The wntten comments state Maunce worked at CCRA pnor to comIng to Corp Tax. He has only been In my group for 2 months of the penod under reVIew and my evaluatIOn has been lImIted by not seeIng any completed audIts CertaIn areas have been hIghlIghted for Improvement dunng the comIng fiscal year CertaIn audIts wIth large number of hours on board and no tax change wIll be wrapped up as qUIckly as possIble, so that Maunce can have a fresh start. Maunce has shown a wIllIngness to learn and to Improve, and to take on added responsIbIlItIes as reqUIred. 3 Other Appraisals The performance appraisals of five of the other employees selected by the Employer - Mary GraJner Sandra MolInaro CarmIne MascIangelo Edmund Wong, and Joseph Fung - were all very good to excellent, both In terms of ratIngs and comments The appraisals of Mr Leung, who was also selected by the Employer were also reasonably good. For 2002, he receIved an overall ratIng In the mIddle range of "Meets ReqUIrements" wIth the IndIVIdual categones rangIng from the mIddle to hIgh-end for the sectIOn Key Job ReqUIrements For the sectIOn Key Job ExpectatIOns, he receIved the mIddle ratIng In "Meets ReqUIrements" The wntten comments state For most of the penod covered by thIS reVIew Albert worked on a large team audIt. He dId however complete a number of smaller files pnor to the end of the year Albert wIll perform research on tax Issues as reqUIred and ensures audIt workIng papers and admInIstratIve forms are properly completed In a tImely manner His 2001 evaluatIOn, rated hIm the mIddle category of "Meets ReqUIrements" wIth each IndIVIdual category reCeIVIng the same ratIng. 6 The evaluatIOns of Mr GUIllermo Ms RatansI, Ms Chen, Mr Margel and Mr Savundra were good to very good evaluatIOns B. Resumes The resumes of all of the employees showed substantIal audIt expenence and related work expenence A number of the employees had CertIfied Management Accountant credentIals, a number had CertIfied General Accountant credentIals, and three (Ms MolInaro Mr Pestell and Ms RatansI) had Chartered Accountant credentIals C. Ranking on the February 2000 competition for Tax Auditor 5 The partIes stIpulated to the folloWIng: Sandra MolInaro* SI S% lih Gerry Margel 462% 14th Steven Pestell 408% ISth CarmIne MascIangelo* 39% 1 ih Albert Leung* 32% 19th ChnstIna Chen screened In for IntervIew but wIthdrew from competItIOn ShamIn RatansI screened In for IntervIew but wIthdrew from competItIOn Maunce Gabay* not screened In for IntervIew Joseph Fung* not screened In for IntervIew Edmond W ong* not screened In for IntervIew Manny GUIllermo not screened In for IntervIew FelIx Savundranayagam not screened In for IntervIew Mary GraJ ner* dId not apply * IndIcates employee selected by management. D Written Portion of the Cancelled Competition for Financial Officer 5 The partIes' stIpulated as follows 1 Joseph Fung* 117 2 Albert Leung* 108 3 Sandra MolInaro* 110 4 Edmond W ong* 103 S CarmIne MascIangelo* 101 6 Maunce GUIllermo 101 7 7 Mary GraJ ner* 96 8 Steven Pestell 95 9 ShamIm RatansI 93 10 Gerry Margel 87 11 ChnstIna Chen 85 12 Maunce Gabay* 83 13 FelIx Savundranayagam 48 . IndIcates employee selected by management E. Production Statistics for 2000, 2001 and 2002 The partIes have agreed to the folloWIng InformatIOn j ~ I I I I I I 1 i 1 I 1 ~ I ~ 1 , 8 F Standard of Review The partIes' also agreed upon the appropnate standard of reVIew as set out In OPSEU (Young et al. Group Grievance) and Ministry of the Attorney General GSB No 1455/00 et al (Abramsky Vice-Chair) Positions of the Parties For the Union The Umon asserts that a reVIew of the documents relIed upon by the Employer wIll establIsh that the selectIOn of the seven Tax AudItor 5 employees cannot have been made In good faith. ThIS IS especIally true, the Umon claims, In regard to gnevor Steve Pestell In the Umon's VIew Mr Pestell had the hIghest produCtIVIty among the gnevors, the hIghest tax recovery rate, and the largest files, whIch IS a rough estImate of a file's complexIty He IS a chartered accountant, wIth substantIal expenence and good performance appraisals In ItS submIssIOn, Mr Pestell stands out as a candIdate, yet he dId not appear on the lIst even though others, wIth lesser credentIals, were awarded the posItIOns In partIcular the Umon questIOns the selectIOn ofMaunce Gabay over Mr Pestell, based on the cntena used by the Employer The Umon submIts that all of the gnevors are qualIfied candIdates, yet the Order reqUIred the Employer to select the "most qualIfied" to fill the posItIOns It submIts that the selectIOn by the Employer could not, In good faith, have been made based on the documents It relIed upon. 9 For the Employer The Employer agrees that the gnevors were all very qualIfied employees Based on the InformatIOn It had, It tned to determIne the best qualIfied candIdates and there was no bad faith In Its selectIOn. The Employer submIts that the decIsIOn was ratIOnally related to the facts and meets the test of "reasonableness" as set out In the Junsprudence Decision The lImItatIOns on my abIlIty to reVIew the selectIOn made by management are found In both the July 15 2002 Order as well as the case law The Order In paragraph 3 states 3 The employer's selectIOn of the 7 gnevors wIll be final and shall not be the subJ ect of any gnevance on the ments or that Involves a companson among gnevors' qualIficatIOns Paragraph 2 of the Order however reqUIres the Employer "makIng use of the best InformatIOn avaIlable to It" to select "In good faith" the seven gnevors who "In the employer's OpInIOn" are "most qualIfied to fill posItIOns as Semor CorporatIOns Tax AudItors " The case law as set out In OPSEU (Young et aL Group Grievance) and MinistlY of the Attorney General, supra at p 14 provIdes as follows In regard the Board's JunsdIctIOn to reVIew a management decIsIOn on the basIs of "good faith" The Board In Bousquet [OPSEU(Bousquet) and Ministry of Natural Resources GSB No 541/90 et al (Gorsky 1990)] extensIvely revIewed the Junsprudence regardIng what constItutes "good faith." The Board adopted, essentIally a two- part standard. The first reqUIrement IS an absence of bad faith, I e the decIsIOn must not be Improperly motIvated or malIcIOusly Intended. The second reqUIrement IS a reqUIrement of "reasonableness" - the "elements of reasonableness and a ratIOnal relatIOnshIp between the facts leadIng to the makIng of the decIsIOn and the decIsIOn Itself" (Bousquet at p 62) "Where there IS some eVIdence permIttIng an obJectIve assessment that the decIsIOn flowed logIcally from the facts, the Employer wIll have satIsfied the second aspect of the good faith test (reasonableness) " (Bousquet at p 63) 10 It IS the second part of the "good faith" standard upon whIch the Umon relIes In thIS case There IS no real assertIOn, and certaInly no eVIdence, that the decIsIOn was Improperly motIvated. Instead, the Umon asserts that there IS no ratIOnal relatIOnshIp between the facts leadIng to the makIng of the decIsIOn and the decIsIOn Itself Based on my reVIew of the documents provIded, the Umon's concern about Mr Pestell appears well founded. Based on the stated cntena, he stands out. There IS no area In whIch he IS deficIent and there are numerous areas In whIch he excels ThIS IS partIcularly true In terms of the cntena of tax recovery (he had the hIghest amount wIth $7843683) and the number of completed files (agaIn he had the most wIth 38 IncludIng the most files (14) of over $100 mIllIon and 24 files of less than $100 mIllIon) Mr Pestell's performance evaluatIOns were very good and he IS a Chartered Accountant. Mr Pestell was screened In for an IntervIew for the T A 5 competItIOn and ranked 15th In that competItIOn, above both Mr Leung and Ms MascIangelo He scored 95 In the wntten portIOn of the cancelled F 0 5 competItIOn. When Mr Gabay IS measured agaInst the stated cntena, he does not fare nearly so well Although hIS tax recovery IS second at $6 064 131 he had only two files of greater than $100 mIllIon and only 17 of less than $100 mIllIon. Further he scored 83 In the wntten portIOn of the cancelled F 0 5 competItIOn. His performance appraisals were good, but not excellent. Nor was he screened In for an IntervIew for the T.A5 competItIOn, although I note that neIther were Mr Fung or Mr Wong. In relatIOns to the stated cntena, there IS no area In whIch Mr Gabay appears to have excelled. Consequently companng Mr Pestell agaInst the stated cntena, I conclude, on the balance of probabIlItIes, that It was not ratIOnal for the Employer not to select hIm The 11 standard for "reasonableness" as set out In Bousquet, supra, and Young et al. supra, has not been met. An obJectIve assessment of the stated cntena does not lead to the conclusIOn that the decIsIOn flowed logIcally from the facts Conversely companng Mr Gabay to the stated cntena, I conclude, on the balance of probabIlItIes, that It was not reasonable for the Employer to have selected hIm. An obJectIve assessment of the stated cntena does not lead to the conclusIOn that the decIsIOn flowed logIcally from the facts In terms of the other candIdates, I find that the Employer's selectIOns were ratIOnally related to the stated cntena, even though I may not have reached all of the same conclusIOns I wIsh to emphasIze that thIS exerCIse IS not a companson between Mr Pestell and Mr Gabay although It could easIly appear to be so Instead, It IS a companson of each candIdate against the stated criteria Nor IS It a findIng or conclusIOn that Mr Gabay should not be a Tax AudItor S As noted by both partIes, all of the gnevors are very capable employees Instead, thIS exerCIse was an obJectIve assessment of the gnevors agaInst the stated cntena and whether the Employer's selectIOn decIsIOn flowed logIcally from the facts Conclusion 1 For all of the above-stated reasons, I conclude, on the balance of probabIlItIes, that the Employer's decIsIOn not to select Mr Pestell was not reasonable 2 The Employer IS dIrected to place Mr Pestell In the posItIOn of Tax AudItor S as soon as It may be practIcally arranged. Mr Pestell IS also entItled to the dIfference In pay between the Tax AudItor S posItIOn and the Tax AudItor 4 posItIOn from the tIme when the selected employees began workIng as Tax AudItor S's untIl he IS placed In the Tax AudItor S posItIOn, less any momes he may have already receIved as a result of the July IS 2001 Order Further to be clear thIS decIsIOn does not reqUIre that the Mimstry replace Mr Gabay wIth Mr Pestell All that It reqUIres IS that, as soon as It may practIcally be arranged, Mr PestellIs to be placed In the posItIOn of Tax AudItor S 12 3 I shall remaIn seIzed. Issued at Toronto thIS 9th day of July 2003 Randi H. Abramsky Vice-Chair