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
Don Martin Grievance Officer Ontario Public Service Employees Union
FOR THE EMPLOYER
Helen Ecker Labour Relations Consultant Ministry of Finance
HEARING
Additional Submissions August 14 & 28 and September 10, 2003.
FINAL AWARD
On July 9, 2003, I issued an Award in this case which determined that the Employer’s decision not to select Mr. Pestell for the position of Tax Auditor 5 was not reasonable. Based on the evidence presented, the decision did not flow logically from the facts. Conversely, I determined that the Employer’s selection of Mr. Gabay also did not flow logically from the facts presented. In terms of the other grievors, I found “that the Employer’s selections were rationally related to the stated criteria, even though I may not have reached all of the same conclusions.” The Award directed the Employer to place Mr. Pestell in the position of Tax Auditor 5 as soon as it could practically be arranged, but it did not require that the Ministry replace Mr. Gabay with Mr. Pestell. Both parties’ sought clarification of the July 9, 2003 Award.
The Award was written in the manner set out above to provide the Employer with the maximum flexibility if it decided to retain Mr. Gabay as a Tax Auditor 5, and to avoid potential disruption to the Ministry’s operations. The parties, however, had expected the Board, after having reviewed the documentation agreed upon by the parties, to substitute its determination for that of management if the decision did not meet the test of reasonableness and good faith set out in OPSEU (Young et al./Group Grievance) and Ministry of the Attorney General (2002), GSB No. 1455/00 (Abramsky). Accordingly, the Award should have been written to require the Employer to substitute Mr. Pestell, instead of Mr. Gabay, in the position of Tax Auditor 5.
The Union, in its submission, raised concern that some grievors “may understandably feel that Mr. Pestell and Mr. Gabay have been especially singled out, while their own qualifications have never been honestly considered at all.” Based on the submissions of the Union, the Award did spend a substantial amount of time on Mr. Pestell and Mr. Gabay, but ALL of the documentation on ALL of the grievors was fully reviewed. All of the grievors’ performance appraisals were reviewed. All of the grievors’ resumes; all of the grievors’ scores in the written portion of the cancelled F.O 5 competition; all of the grievors’ performances in the Tax Auditor 5 competition and the Inventory Summary Reports, or their equivalent information. All of the information and documentation was considered – and a determination was made. I determined that the Employer’s selections – other than Mr. Pestell and Mr. Gabay – “were rationally related to the stated criteria.”
The fact that I stated that I “may not have reached all of the same conclusions” is irrelevant. The test of reasonableness is not one of correctness. As noted in OPSEU (Bousquet) and Ministry of Natural Resources (1990), GSB No. 541/90 et al. (Gorsky), the fact that an arbitration board might have come to a different decision or assessment is irrelevant. Quoting from the decision of Shaw, GSB No. 410/88 (Watters) at p. 6, the Board held at p. 60:
It is easy to brand as “irrational” any thought process or decision with which one does not agree. The Deputy Minister must be free to make decisions, without being found to have acted irrationally merely because a board of arbitration might have come to a different decision.
As long as the decision flows logically from the facts and is not improperly motivated, the decision meets the test of reasonableness. In this regard, it should be noted that there was no allegation, and no evidence, that the Employer acted for an improper motive. Further, as noted, I found that the Employer’s selection of the six other grievors flowed logically from the facts.
Accordingly, the Award dated July 9, 2003 is hereby amended as follows:
I conclude, on the balance of probabilities, that the Employer’s decision not to select Mr. Pestell was not reasonable.
The Employer’s selection of the grievors for the position of Tax Auditor 5 is hereby amended to substitute Mr. Pestell for Mr. Gabay. The Employer’s selection of the remaining six grievors stands.
The issue of compensation, if any, is left to the parties to resolve.
I shall remain seized.
Issued at Toronto this 24th day of September 2003.