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HomeMy WebLinkAbout2000-0319.Leung et al.03-09-24 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... 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 Don MartIn Gnevance Officer Ontano PublIc ServIce Employees Umon FOR THE EMPLOYER Helen Ecker Labour RelatIOns Consultant Mimstry of FInance HEARING AddItIOnal SubmIssIOns August 14 & 28 and September 10 2003 2 FINAL AWARD On July 9 2003 I Issued an Award In thIS case whIch determIned that the Employer's decIsIOn not to select Mr Pestell for the posItIOn of Tax AudItor 5 was not reasonable Based on the eVIdence presented, the decIsIOn dId not flow logIcally from the facts Conversely I determIned that the Employer's selectIOn of Mr Gabay also dId not flow logIcally from the facts presented. In terms of the other gnevors, I found "that the Employer's selectIOns were ratIOnally related to the stated cntena, even though I may not have reached all of the same conclusIOns" The A ward dIrected the Employer to place Mr Pestell In the posItIOn of Tax AudItor 5 as soon as It could practIcally be arranged, but It dId not reqUIre that the Mimstry replace Mr Gabay wIth Mr Pestell Both partIes' sought clanficatIOn of the July 9 2003 Award. The Award was wntten In the manner set out above to provIde the Employer wIth the maXImum flexIbIlIty If It decIded to retaIn Mr Gabay as a Tax AudItor 5 and to aVOId potentIal dIsruptIOn to the Mimstry's operatIOns The partIes, however had expected the Board, after havIng revIewed the documentatIOn agreed upon by the partIes, to SubstItute ItS determInatIOn for that of management If the decIsIOn dId not meet the test of reasonableness and good faith set out In OPSEU (Young et al. Group Grievance) and Ministry of the Attorney General (2002) GSB No 1455/00 (Abramsky) AccordIngly the Award should have been wntten to reqUIre the Employer to SubstItute Mr Pestell, Instead ofMr Gabay In the posItIOn of Tax AudItor 5 3 The Umon, In Its submISSIon, raised concern that some gnevors "may understandably feel that Mr Pestell and Mr Gabay have been especIally sIngled out, whIle theIr own qualIficatIOns have never been honestly consIdered at all " Based on the submIssIOns of the Umon, the Award dId spend a substantIal amount of tIme on Mr Pestell and Mr Gabay but ALL of the documentatIOn on ALL of the gnevors was fully revIewed. All of the gnevors' performance appraisals were revIewed. All of the gnevors' resumes all of the gnevors' scores In the wntten portIOn of the cancelled F 0 5 competItIOn, all of the gnevors' performances In the Tax AudItor 5 competItIOn and the Inventory Summary Reports, or theIr eqUIvalent InformatIOn. All of the InfOrmatIOn and documentatIOn was consIdered - and a determInatIOn was made I determIned that the Employer's selectIOns - other than Mr Pestell and Mr Gabay - "were ratIOnally related to the stated cntena." The fact that I stated that I "may not have reached all of the same conclusIOns" IS Irrelevant. The test of reasonableness IS not one of correctness As noted in OPSEU (Bousquet) and MinistlY of Natural Resources (1990) GSB No 541/90 et al (Gorsky) the fact that an arbItratIOn board mIght have come to a dIfferent decIsIOn or assessment IS Irrelevant. QuotIng from the decIsIOn of Shaw GSB No 410/88 (Watters) at p 6 the Board held at p 60 It IS easy to brand as "IrratIOnal" any thought process or decIsIOn wIth whIch one does not agree The Deputy Mimster must be free to make decIsIOns, wIthout beIng found to have acted IrratIOnally merely because a board of arbItratIOn mIght have come to a dIfferent decIsIOn. As long as the decIsIOn flows logIcally from the facts and IS not Improperly motIvated, the decIsIOn meets the test of reasonableness In thIS regard, It should be noted that there was no allegatIOn, and no eVIdence that the Employer acted for an Improper motIve Further 4 as noted, I found that the Employer's selectIOn of the SIX other gnevors flowed logIcally from the facts AccordIngly the Award dated July 9 2003 IS hereby amended as follows 1 I conclude, on the balance of probabIlItIes, that the Employer's decIsIOn not to select Mr Pestell was not reasonable 2 The Employer's selectIOn of the gnevors for the posItIOn of Tax AudItor 5 IS hereby amended to SubstItute Mr Pestell for Mr Gabay The Employer's selectIOn of the remaInIng SIX gnevors stands 3 The Issue of compensatIOn, If any IS left to the partIes to resolve 4 I shall remaIn seIzed. Issued at Toronto thIS 24th day of September 2003 hnnt6lw~ Vice-Chatr C