Ontario Public Service Employees Union (Leung et al, Guillermo/Chen) v. The Crown in Right of Ontario (Ministry of Finance), 2001 CanLII 25795

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.

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 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 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 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.

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.

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 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 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:

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.

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. …

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

-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.

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 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 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 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.

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 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 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 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.”

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

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.

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:

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), 1994 CanLII 18656 (BC LA), 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), 1978 CanLII 3439 (NS LA), 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.

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 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 1978 CanLII 3439 (NS LA), 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 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.

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, 1998 CanLII 30078 (NL LA), 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), 1994 CanLII 18713 (ON LA), 42 L.A.C. (4th) 411 (Abbott); Re Foothills Provincial General Hospital and Alberta Union of Provincial Employees (1999), 1998 CanLII 30058 (AB GAA), 76 L.A.C. (4th) 371 (Moreau)

A similar determination was made in Re Chilliwack General Hospital and British Columbia Nurses’ Union, 1994 CanLII 18656 (BC LA), 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 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), 1972 CanLII 2007 (CA LA), 24 L.A.C. 159, 165 (Lysyk), the Board, relying on Re U.S.W. and Int’l Nickel Co. of Canada Ltd. (1965), 1965 CanLII 999 (ON LA), 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 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 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 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 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 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 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.

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 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 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 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 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 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 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 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.

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, 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 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.

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.

Dated at Toronto, this 26th day of July, 2001.