GSB# 2003-1581
UNION# 2000-0340-0013, 2000-0340-0015, 2000-0340-0016, 2000-0340-0017, 2000-0340-0018, 2000-0340-0019, 2000-0340-0020, 2000-0340-0021, 2000-0340-0022, 2000-0599-0021
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Alani et al.)
Union
- and -
The Crown in Right of Ontario (Ministry of Finance)
Employer
BEFORE
Barry B. Fisher
Vice-Chair
FOR THE UNION
Hilary Cook Grievance Officer Ontario Public Service Employees Union
FOR THE EMPLOYER
Fateh Salim Counsel Management Board Secretariat
HEARING
March 30, 2005.
Decision
This grievance consists of 10 grievors, all of whom are classified as Tax Auditor 4 (TA4). They initially filed separate grievances in March 2000. The Stage 2 meetings were held on September 1, 2001.
The grievances all refer to the fact that the grievors allege that they performed the work of TA5’s in that they performed audits on corporate taxpayers with gross income in excess of $100 million per year.
All of the grievances to some degree refer to Article 22.12 of the Collective Agreement and most request a change in classification. Based on this the Ministry objected to these grievances on the basis that the GSB has no longer has jurisdiction over classification grievances as set out in Section 52.1 of CECBA. The Union does not contest that the GSB has no jurisdiction if these grievances are in fact classification grievances, however it alleges that the grievances are really Article 8 Temporary Assignments grievances in that the only remedy that the grievors are now seeking is to be paid for when they were actually performing TA5 duties. The Union did not file new grievances after the Ministry raised the jurisdictional issue at the Stage 2 meeting, however it would have been too late to do so in any event. The Ministry did advise the Union that they would not raise timeliness as an objection if the grievors were to now file an objection over their classification under the Joint System Subcommittee of the CERC.
The Ministry’s position is that the pith and substance of these grievances is that they are classification grievances and that to allow the Union to convert them into a temporary assignment grievance would be to improperly change the nature of the grievance. They rely on the decision of Vice Chair Abramsky in OPSEU (Boyer) v Ministry of Environment (GSB 742/00) to say that where the pith and substance of the grievance is classification, it matters not if it is disguised as a temporary assignment grievance, the GSB has no jurisdiction. However the Vice Chair did caution at page 11 of the award that:
Each case must be carefully evaluated on its specific facts and bona fide temporary assignment grievances should not be lightly dismissed as disguised classification grievances.
In this case there are two distinct types of grievances. In 9 of the 10 grievances the grievances read more or less as follows:
Statement of Grievance.
I have been classified as a TA4 [formerly F04] to conduct field audits of small and medium-sized corporate taxpayers, or participate in audits of larger, more complex corporate taxpayers, as a team member under the direction of a Senior Field Auditor, in order to ascertain and maximize compliance with the Ontario Corporations Tax Act, the Mining Tax Act and the Income Tax Act. [Canada] tax legislation.
According to the standards set out to by the Corporations Tax Branch, Field Audit Section, small and medium-sized corporate taxpayers comprise corporate taxpayers with gross revenues under $100 million in a fiscal year. Larger , more complex corporate taxpayers comprise those with gross revenue in excess of 100 million dollars in a fiscal year.
I have conducted field audits of small and medium-sized corporate taxpayers. However, I have also conducted audits of the larger or more complex corporate taxpayers. Consequently, my classification as a TA4 [formerly F04}, is incorrect, while I conducted the audit of these larger more complex corporate taxpayers.
I grieve pursuant to Section 22.12 Classification and related sections of the Collective Agreements.
Settlement desired:
That my present position be changed to Senior Corporation Tax Auditor.
That I be compensated as a Senior Corporation Tax Auditor since my date of hiring, also the time that started auditing larger more complex corporate taxpayers.
The above salary adjustment be paid with full retroactivity, including interest.
The grievance of Mr. Ogle did not contain item #1 under Settlement Desired, but in all other respects, was identical to the grievance set out above.
Only one grievor Mr. Walter Narsingh, filed a grievance in a somewhat different format. His grievance reads as follows:
Statement of Grievance.
I have been classified as a TA4 [formerly F04] to conduct field audits of small and medium-sized corporate taxpayers, or participate in audits of larger, more complex corporate taxpayers, as a team member under the direction of a Senior Field Auditor, in order to ascertain and maximize compliance with the Ontario Corporations Tax Act, the Mining Tax Act and the Income Tax Act. [Canada] tax legislation.
According to the standards set out to by the Corporations Tax Branch, Field Audit Section, small and medium-sized corporate taxpayers comprise corporate taxpayers with gross revenues under $100 million in a fiscal year. Larger , more complex corporate taxpayers comprise those with gross revenue in excess of 100 million dollars in a fiscal year.
I have conducted field audits of small and medium-sized corporate taxpayers. However, I have also conducted audits of the larger or more complex corporate taxpayers. Consequently, my classification as a TA4 [formerly F04}, is incorrect, while I conducted the audit of these larger more complex corporate taxpayers.
I grieve pursuant to Section 22.12 Classification and related sections of the Collective Agreements.
Settlement desired:
Compensation to the extent of the salary differential between the TA4 [formerly FO 4] and Senior Field Auditor, [TA5, formerly FO5] for the time spent in conducting the field audits of the larger, more complex corporate taxpayers. ( emphasis added)
The first group of grievances are clearly classification grievances as this is the central focus of the entire grievance, including the Settlement Desired.
Mr. Narsingh’s grievance, although it does refer to Section 22.12 of the Collective Agreement, does not actually seek a classification remedy; rather he only seeks to be paid the higher rate when he in fact performed the larger more complex audits.
In the Boyer case, referred to above, the GSB heard evidence about the history of the grievance under question as well as a reasonably detailed history of the surrounding circumstances. It was largely based on this other evidence that the Vice Chair found that the grievance was really a classification grievance disguised as a temporary assignment grievance. In this case, neither side sought to introduce any evidence, therefore the only evidence before me are the actual grievances. Taking into consideration the statement by Vice Chair Abramsky about not dismissing temporary grievances lightly on the grounds that they are really classification grievances, I will allow this grievance only in so far as it relates to the claim by Mr. Narsingh for Temporary Assignment pay and dismiss the other nine claims as they are classification grievances.
The Ministry has asked the Union for full particulars of its claim. Keeping in mind the time limitations under the Collective Agreement and the filing date of the grievance, (March 16, 2000), I hereby order the Union to provide those particulars by May 15, 2005.
The Registrar of the GSB is to set a new hearing date for the hearing of Mr. Narsingh’s case.
Dated at Toronto this 12th day of May 2005