GSB# 0319/00, 0388/00, 0974/00, 1112/00, 1182/00, 1247/00, 1248/00

UNION# 00B194, 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

Ontario Public Service Employees Union (Leung et al.)

Grievor

• and -

The Crown in Right of Ontario (Ministry of Finance)

Employer

BEFORE

Randi H. Abramsky

Vice-Chair

FOR THE UNION

Helen Ecker Labour Relations Consultant Ministry of Finance

FOR THE EMPLOYER

Don Martin Grievance Officer Ontario Public Service Employees Union

HEARING

September 4 & October 31, 2002; May 26, 2003.

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 grievance. 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 grievors in the Chen et al. and Leung et al. grievances, who are not now employed as Senior Corporation Tax Auditors, and who are, in the employer’s opinion, most qualified to fill positions as Senior Corporation Tax Auditors, and will classify and pay those grievors as Senior Corporations Tax Auditors at the Tax Auditor 5 level effective July 1, 2002.

3. The employer’s selection of the 7 grievors will be final and shall not be the subject of any grievance on the merits or that involves a comparison among grievors’ 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 Senior Corporation Tax Auditors, as set out in paragraph 2 of the July 15, 2002 Order, was based on the following documents:

1. The grievors’ performance appraisals.

2. The grievors’ resumes.

3. The grievors’ score in the written portion of the cancelled F.O. 5 competition.

4. The grievors’ performance in the Tax Auditor 5 competition.

5. The grievors’ 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 grievors were: Edmund Wong; Joseph Fung; Sandra Molinaro; Maurice Gabay; Mary Grajner; Carmine Masciangelo and Albert Leung. The grievors who were not selected include: Christina Chen; Manuel Guillermo; Steve Pestell; Shamin Ratansi; Jerry Margel and Felix Savundra.

The exhibits and documentary evidence provided by the parties are summarized below. Particular attention is focussed on Mr. Pestell and Mr. Gabay, in light of the Union’s questioning of Mr. Gabay’s selection over that of Mr. 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 categories 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 minimal 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 written comments state:

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 written comments state as follows:

Steve joined my audit group in February 2001.

Steve is an enthusiastic employee who has worked independently on numerous audits during the period covered by this review.

His files are completed in a timely manner.

Steve is a good communicator. 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 written comment states: “Steve is an able auditor who could enhance his contribution to the unit 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 written comments were as follows:

Maurice has the potential for handling increasingly more complex files. He gets along well with his coworkers and can handle diverse kinds of assignments. His 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 categories range from the low-end to the high-end. The second section of the evaluation, Key Job Expectations, was not completed. The written comments state:

Maurice worked at CCRA prior to coming to Corp Tax. He has only been in my group for 2 months of the period under review, and my evaluation has been limited by not seeing any completed audits. Certain areas have been highlighted for improvement during 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 Maurice can have a fresh start.

Maurice 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 categories 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 written comments state:

For most of the period covered by this review, Albert worked on a large team audit. He did however complete a number of smaller files prior 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.

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 experience and related work experience. 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* 51.5% 12th

Gerry Margel 46.2% 14th

Steven Pestell 40.8% 15th

Carmine Masciangelo* 39% 17th

Albert Leung* 32% 19th

Christina Chen screened in for interview, but withdrew from competition

Shamin Ratansi screened in for interview, but withdrew from competition

Maurice Gabay* not screened in for interview

Joseph Fung* not screened in for interview

Edmond Wong* not screened in for interview

Manny Guillermo not screened in for interview

Felix Savundranayagam not screened in for interview

Mary Grajner* 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 Wong* 103

5. Carmine Masciangelo* 101

6. Maurice Guillermo 101

7. Mary Grajner* 96

8. Steven Pestell 95

9. Shamim Ratansi 93

10. Gerry Margel 87

11. Christina Chen 85

12. Maurice 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:

F. Standard of Review

The parties’ also agreed upon the appropriate 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 Union 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 Union claims, in regard to grievor Steve Pestell. In the Union’s view, Mr. Pestell had the highest productivity among the grievors, 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 experience 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 Union questions the selection of Maurice Gabay over Mr. Pestell, based on the criteria used by the Employer.

The Union submits that all of the grievors 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.

For the Employer

The Employer agrees that the grievors were all very qualified employees. Based on the information it had, it tried 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 jurisprudence.

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 grievors will be final and shall not be the subject of any grievance on the merits or that involves a comparison among grievors’ 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 grievors who “in the employer’s opinion” are “most qualified to fill positions as Senior Corporations Tax Auditors…”

The case law, as set out in OPSEU (Young et al./Group Grievance) and Ministry of the Attorney General, supra at p. 14, provides as follows in regard the Board’s jurisdiction 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 jurisprudence 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) …

It is the second part of the “good faith” standard upon which the Union relies in this case. There is no real assertion, and certainly no evidence, that the decision was improperly motivated. Instead, the Union 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 Union’s concern about Mr. Pestell appears well founded. Based on the stated criteria, 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 criteria of tax recovery (he had the highest amount with $7,843,683) 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 TA 5 competition and ranked 15th in that competition, above both Mr. Leung and Ms. Masciangelo. He scored 95 in the written portion of the cancelled F.O. 5 competition.

When Mr. Gabay is measured against the stated criteria, 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 written portion of the cancelled F.O. 5 competition. His performance appraisals were good, but not excellent. Nor was he screened in for an interview for the T.A.5 competition, although I note that neither were Mr. Fung or Mr. Wong. In relations to the stated criteria, there is no area in which Mr. Gabay appears to have excelled.

Consequently, comparing Mr. Pestell against the stated criteria, I conclude, on the balance of probabilities, that it was not rational for the Employer not to select him. The standard for “reasonableness”, as set out in Bousquet, supra, and Young et al., supra, has not been met. An objective assessment of the stated criteria does not lead to the conclusion that the decision flowed logically from the facts.

Conversely, comparing Mr. Gabay to the stated criteria, 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 criteria 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 criteria, even though I may not have reached all of the same conclusions.

I wish to emphasize that this exercise is not a comparison between Mr. Pestell and Mr. Gabay, although it could easily appear to be so. Instead, it is a comparison of each candidate against the stated criteria. Nor is it a finding or conclusion that Mr. Gabay should not be a Tax Auditor 5. As noted by both parties, all of the grievors are very capable employees. Instead, this exercise was an objective assessment of the grievors against the stated criteria 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 5 as soon as it may be practically arranged. Mr. Pestell is also entitled to the difference in pay between the Tax Auditor 5 position and the Tax Auditor 4 position from the time when the selected employees began working as Tax Auditor 5’s until he is placed in the Tax Auditor 5 position, less any monies he may have already received as a result of the July 15, 2001 Order. Further, to be clear, this decision does not require that the Ministry replace Mr. Gabay with Mr. Pestell. All that it requires is that, as soon as it may practically be arranged, Mr. Pestell is to be placed in the position of Tax Auditor 5.

3. I shall remain seized.

Issued at Toronto this 9th day of July, 2003.