GSB# 2005-3613

UNION# 2005-0630-0010

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Tarini)

Union

• and -

The Crown in Right of Ontario (Ministry of Finance)

Employer

BEFORE

Richard L. Jackson

Vice-Chair

FOR THE UNION

Robin Gordon Grievance Officer Ontario Public Service Employees Union

FOR THE EMPLOYER

Ferina Murji Counsel Ministry of Government Services

HEARING

November 29, 2006.

Decision

Facts

This is the grievance of Lisa Tarini who, at the time in question, worked at Sudbury office of the Ministry of Finance as a Tax Auditor 2. The parties submitted an agreed statement of facts, which is set out below.

1. The Grievor is employed by the Ministry of Finance as a Field Auditor in Retail Sales Tax, classified as a Tax Auditor 2 (TA2).
2. The Employer posted a competition for a Temporary Assignment of up to 16 months for a Senior Field Auditor, TA4, in Retail Sales Tax, on September 21, 2005. Attached as Appendix A.
3. The Grievor submitted her application on September 30, 2005. Grievor’s application package attached as Appendix B.
4. The Grievor was informed that the posting was cancelled as there were no qualified internal candidates. The Employer then ran an open competition for the position.
5. 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 posting.
6. The Grievor filed a grievance dated December 15, 2005, stating that the Employer violated Article 6 of the Collective Agreement, specifically articles 6.1, 6.3 and 2.1.

The “Qualifications” section of the job posting is as follows:

Extensive experience in and knowledge of advanced auditing, financial statement analysis, accounting theory and accounting systems; knowledge of computer technology and Retail Sales Act; ability to render decisions affecting taxpayers’ fiscal operations; interpersonal and communications skills to resolve contentious issues; 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 or Finance.

Arguments

The Union’s argument is a simple one: namely, that the Ministry misapplied the language pertaining to education in its posting when it screened out the Grievor. It argues, specifically, that the word “or” in the phrase “plus or including courses in Introductory Financial Accounting…” should be read as having the same effect as the word “or” in the preceding phrase “CGA, CMA, or CA designation or successful completion of a recognized university degree” [Emphasis added by arbitrator]. In other words, the posting set out three possibilities in terms of necessary educational qualifications for the TA 4 position, any one of which was sufficient to satisfy the required-education component of the posting: (1) any one of the CGA, CMA or CA designations, (2) a recognized university degree, or (3) courses in the various accounting subjects listed. Given that the Grievor did have all of the accounting courses listed in the posting, even though she did not have either a university degree or any one of the formal accounting designations listed, she should not have been screened out of the competition on the basis of lacking either a degree or one of the accounting designations.

For its part, the Ministry argues that the educational requirements as set out in the job posting do not mean what the Union argues they mean. According to counsel for the Ministry, the language in the job posting makes clear that there are two means of satisfying the educational requirements for the TA 4 position – either (1) one of the listed professional accounting designations or (2) a university degree with certain specific accounting courses, such courses to have been done either as part of the degree or in addition to the degree.

The Ministry also pointed out that, as the Employer, it has the right, within proper limits, to determine the qualifications for any given position, and that the Union did not challenge those qualifications in this case.

Decision

This is case that turns solely on the correct interpretation of the language in the posting so, for ease of understanding, I am setting out the operative part of the “Qualifications” section of the posting again.

CGA, CMA or CA designation or successful completion of a recognized university degree plus or including courses in Introductory Financial Accounting, Intermediate Financial Accounting…Finance [emphasis added for clarity]

The Union’s argument is that the second highlighted “or” functions in the same manner as the first highlighted “or” and, therefore, indicates that the listed accounting courses are themselves a sufficient academic qualification, equal in value, so to speak, to either the accounting-designation requirement or the university-degree requirement. In other words, there are three ways of satisfying the academic-qualification requirement: one of the accounting designations (CMA, etc.), a university degree, or the listed accounting courses. I must respectfully disagree with this interpretation.

The second “or” joins the words “plus” and “including”, and the phrase “plus or including” is followed by “courses in Introductory Financial Accounting….” The antecedent of the resulting phrase, “plus or including courses in Financial Accounting…” is “a recognized university degree”. In other words, qualified candidates must have a recognized university degree, (1) as part of which they took the listed accounting courses or (2) in addition to which they took the accounting courses.

If the language meant what the Union argues it means, it should have read,

CGA, CMA or CA designation or successful completion of a recognized university degree or courses in Introductory Financial Accounting….

Unfortunately for the Grievor, it does not read that way. To give the actual posting language the meaning which the Union argues it should have requires one to conclude that the two words “plus” and “including” have no meaning, that they have no purpose in the text. We simply cannot do that.

Another way of looking at it is by examining the grammatical construction of the three elements that the Grievor considers to be distinct options: the three phrases separated by “or” in her interpretation. The first two (“CGA, CMA or CA designation” and “successful completion of a recognized university degree”) are noun phrases (i.e., each could stand as the subject of a sentence, for instance), whereas the third (“including courses in Introductory Financial Accounting, Intermediate Financial Accounting… Finance”) is an adjectival phrase; that is, its function is solely to modify or describe something else in the sentence; it cannot stand as an independent element. The Grievor’s interpretation makes little sense on both this score and on the basis that the word “plus” after the word “degree” is rendered meaningless.

For the foregoing reasons, then, the grievance must be dismissed.

Dated at Toronto, this 23rd day of January, 2007.