GSB# 2006-0713
UNION# 2006-0599-0002
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Lewis)
Union
- and -
The Crown in Right of Ontario (Ministry of Finance)
Employer
BEFORE
Richard L. Jackson
Vice-Chair
FOR THE UNION
Robin Gordon [November 29, 2006] Mark Barclay [September 11, 2007] Grievance Officers Ontario Public Service Employees Union
FOR THE EMPLOYER
Ferina Murji [November 29, 2006] Jennifer Richards [September 11, 2007] Counsel Ministry of Government Services
HEARING
November 29, 2006, and September 11, 2007.
Decision
This is the grievance of Ms. Heather Lewis, who grieves the results of a job competition within the Ministry of Finance in 2006. The parties submitted an agreed statement of fact, the salient parts of which are set out below.
The Grievor is employed by the Ministry of Finance as a Field Auditor in Retail Sales Tax (“RST”), classified as a Tax Auditor 2 (TA2).
The Grievor has been employed as a Field Auditor TA2 with the Ministry of Finance since November 23, 1998.
The Employer posted a competition for 19 Senior Field Auditor positions, Tax Auditor 4 (“TA4”) in RST, on January 13, 2006. The positions were spread over 5 locations, designated with separate competition numbers and included a mix of permanent and temporary positions. The job posting is attached as Appendix A.
The Grievor submitted her application in regards to three of the locations on January 26, 2006. The Grievor’s application package is attached as Appendix B.
The Employer screened the Grievor out of the competition and she was not granted an interview. The Employer based this decision on a review of the application package and the required educational qualifications of the job postings.
The Grievor filed a grievance dated March 27. 2006 complaining that she should have been granted an interview based on her experience. Article 6.3 was cited in support of this grievance.
The Grievor claims that she has completed four (4) audits at the Senior Field Audit (TA4) level. For the purposes of this arbitration, the names of the four vendors are identified by generic numbers.
a) Vendor 1
b) Vendor 2
c) Vendor 3
d) Vendor 4
- Under Article 1.3 of the RST Audit Policy (“the policy”), audits are assigned to auditors based on the following thresholds:
Category Revenue Tax Remitted
A >$30,000,000 >$100,000
B Up to $30,000,000 Up to $100,000
- Under Article 1.3 of the Policy, TA 2 auditors will only be assigned “B” audits. Under Article 2.4.3 of the Policy, it is the responsibility of the auditor to ensure that the audit assignment is not above his or her classification parameters. If the audit category requires an auditor with a higher classification, the auditor should immediately request direction from his or her Group Manager, Audit.
The details surrounding each of the four audits are listed below:
- Vendor 1
Date assigned: November 14, 2000
Date completed: December 19, 2000
Total hours: 49.25
Audit period: January 1, 1999 to September 30, 2000. Note: the audit period is the time period for which the vendor is being audited. For clarity, in the case of Vendor 1, the auditor would review the vendor’s revenue and tax remitted for the period between January 1, 1999 and September 30, 2000.
The Grievor claims that the audit is an “A” audit.
The Employer claims that the audit is a “B” audit.
- Vendor 2
Date assigned: March 2002
Dated completed: July 22, 2002
Total hours: 39
Audit period: December 1, 1998 to March 31, 2002
The Parties agree that the audit is an “A” audit.
- Vendor 3
Date assigned: March 2005
Dated completed: September 9, 2005
Total hours: 50
Audit period: July 1, 2001 to June 30, 2005
The parties agree that the audit is an “A” audit.
- Vendor 4
Date assigned: May 22, 2002
Date completed: November 26, 2002
Total hours: 48
Audit period: August 1, 1998to June 30, 2002
The Union claims that the audit is an “A” audit.
The Employer claims that the audit is a “B” audit.
During the course of her employment with the Ministry of Finance as a Field Auditor TA2, the Grievor has completed 11, 035 total direct audit hours on 369 audit files from March 1999 (first completed audit identified) to August, 2007.
The Union claims that the Grievor has completed 186.25 hours on “A” audits out of a total of 11,035 audit hours. The Employer claims that the Grievor has completed 89 hours on “A” audits and 10,946 hours on “B” audits out of a total of 11,035 hours.
The required qualifications, as set out in the job posting, appear below.
Qualifications: Extensive experience in/knowledge of advanced auditing, financial statement analysis, accounting theory and accounting systems; CGA, CMA or CA designation or successful completion of a recognized university degree plus or including courses in Introductory Financial Accounting, Intermediate Financial Accounting, Advanced Financial Accounting, Auditing, Taxation, either Cost Accounting or Management Accounting, and one additional course in Auditing, Taxation Cost Accounting, Management Accounting of Finance; in-depth knowledge of tax legislation, interpretations and audit policy as well as related provincial/federal legislation/policies to conduct complex audits and identify non-compliance; interpersonal and communication skills to manage the audit relationship with taxpayers, promote understanding and acceptance of audit findings, resolve conflicts, prepare letters and audit working papers and work independently or as part of a team; ability to demonstrate judgment, analytical, and investigative skills to research, review and identify non-compliance issues; computer skills, including knowledge of various accounting computer programs, to access data, create/review spreadsheets and write audit reports and letters.
Ms. Lewis has a Community College diploma in business, all – or all but one (the parties are disagreed on this) – of the required accounting courses, one year as a financial analyst in the private sector, and six years of business-auditing experience with the Canada Customs and Revenue Agency prior to joining the Ontario Ministry of Finance in 1998 as a Tax Auditor TA2.
The Employer screened the Grievor out of the competition on the basis that she did not possess a university degree, and that is the principal issue on which this case turns. As noted in the Agreed Statement of Fact, the parties were – and remain -- disagreed on the amount of experience on A-level audits possessed by the Grievor, a dispute which was never completely resolved but which, with some time and effort, was narrowed to what is outlined in paragraphs 10 through 15. A secondary issue is whether or not she had taken an advanced financial accounting course, as required by the posting.
Arguments
For its part, the Union argued that, in view of the fact that Ms. Lewis had actually performed four audits at the TA 4 level, for a total of 186.25 hours, to screen out the Grievor solely on the grounds on her not having a university degree was to take an overly technical approach to the screening process: the Grievor has demonstrated that she is capable of fulfilling the requirements of the job and, indeed, it is at least arguable that Ms. Lewis possesses the “extensive experience in/knowledge of advanced auditing...” that the posting specifies. Under all of the circumstances, including six years of experience as a business auditor with the Canadian Customs and Revenue Agency prior to joining the Ontario Ministry of Finance, to insist on the absolute requirement of a university degree, is an unreasonable barrier and, indeed, credentialism. The Union argued that the Employer should be trying to identify the best-qualified employees, which means that it should consider each applicant overall, rather than relying on inflexible decision rules such as whether or not a candidate possesses a university degree. In other words, it is theoretically possible that a candidate well qualified for this position might not have a university degree and, the Union argued, the Employer should factor that reality into its decision-making process. The Union was not arguing that the Grievor should have been awarded the position, only that she should not have been screened out at that point and should have gone to the next step in the process and been granted an interview.
The Employer argued, first, that it has the right to set out the qualifications for the positions it is filling and that that right has been recognized by the Grievance Settlement Board. Second, it pointed out that the Union had not taken issue with the stated requirement of a university degree in this job competition (aside from its application to the specific facts of this particular grievance), nor had it argued that there was any evidence of bad faith in the setting of such a requirement. Third, the Employer disagreed with the Union’s position on the Grievor’s actual experience on A-level audits; it argued that she had only 89 hours of experience on A-level tax audits, and that that cannot possibly be considered “extensive experience” and certainly cannot justify the waiving of the requirement of a university degree. Finally, the Employer argued that the Grievor did not have an Advanced Financial Accounting course.
Award
On the matter of the Advanced Financial Accounting course, the Grievor argues that she has taken one while the Employer argues that she has not – or, at least, that the transcript she submitted in the job competition does not indicate that she has. The Employer is correct in this argument, at least on the basis of the evidence: the transcript does not indicate that Ms. Lewis has taken an Advanced Financial Accounting course.
That question, however, is moot, given the fact that, even if I accept the Union’s position that the Grievor had accumulated a total of 186.25 hours on A-level audits, it cannot be concluded that she had “extensive experience” in A-level audits; 186.25 hours is the equivalent of approximately five weeks’ experience and, however else experience limited to five weeks and four audits may be fairly described, it is not “extensive”.
The Employer has the right, within proper limits (which were not challenged in this competition) to set the qualifications required for an open position; in doing so in this case, it decided that a university degree was a necessary qualification for the TA4 positions. The Grievor does not have a university degree; nor could it be concluded that the evidence available to the Employer in the job competition presented a persuasive picture that, despite not having a degree, the Grievor was well qualified for the position, notwithstanding. This is true even accepting the Union’s view of the disputed facts (the matter of the amount of A-level audit experience). Accordingly, then, the Employer did not act unreasonably in screening out the Grievor on the basis that she did not possess a university degree.
For these reasons, the grievance must fail.
Dated at Toronto, this 6th day of November, 2007.