HomeMy WebLinkAbout1991-0933.Jafri.95-05-23· i~' ONTAR~.O EMPLoYeS DE LA COURONNE
~ CROWNEMPLOYEES DEL'ONTARiO
GRIEVANCE C,oM'MlSSlON DE
SETTLEMENT REGLEMENT -~
BOARD DES GRIEFS ·
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GSB# 933/91
OPSEU# 91B792-91B794
IN THE MATTER OF'~NARBIT~ATION
Under -
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Jafri)
Grievor
- and -
The Crown in Right of Ontario
(Ministry. of Correctional Services)
Employer
BEFORE: N. Dissanayake Vice-Chairperson
P. Klym Member
I. Cowan Member
FOR THE A. Ryder
GRIEVOR Counsel
Ryder, Whitaker, Wright
Barristers & Solicitors
FOR TH~ B. Humphrey
EMPLOYER Counsel
Stringer, Brisbin & Humphrey
Barristers & Solicitors.
HEARING March .30, 1992
June 24, 1992
April 22, 1993
Septe~tber 20, 27, 30, 1993
January 19, 20, 1994
April 11~ 15, 1994
June 17, 1994
2 -
DECISION
The Board was seized with four grievances filed by the
grievor, Mr. Sohail Jafri.
1. A grievance alleging that "I have been discriminated
against by not being given a fair opportunity for an
employment equity position that was recently posted."
2. A grievance wherein he grieves "the letter and
contents of the letter written by D. Olver, dated March 14,
1991 and which was placed on my personnel file."
3. A grievance alleging that "I am being discriminated
against and also punished for exercising my rights for union
representation and assistance as a paying union member."
4. A grievancealleging that "the employer has violated
the collective agreement by terminating me without just cause
by letter dated March 14, 1991, signed by D.M. Olver."
The parties agreed that grievance no. 4 above raised what
was referred to as "the Beresford issue", namely, whether the
grievor was properly appointed to the unclassified service.
They further agreed to'deal with that issue first. The Board
conducted a hearing into the "Beresford issue" and issued a
decision dated April 14, 1992, wherein it was held that the
grievor was properly appointed to the unclassified service.
Following that decision, union counsel advised that the
union would not be pursuing grievance no.1 above per sg, but
that it will nevertheless rely on circumstances surrounding
that job competition to buttress its allegation that the
employer's decision'to not renew the grievor's contract was
.t~inted by bad faith. Indeed, h~ving failed on the "Beresford
issue", for all practical purposes the union rolled what
remained of the four grievances into one allegation, namely,
that the employer's decision to not renew the grievor's
contract was tainted by bad faith.
The grievor commenced his employment as an employee in
"the unclassified service with the Ministry of correctional
Services as a correctional officer I at the Vanier Centre for
Women in Brampt°n, Ontario with a contract running from
November 14, 1989 to March 31, 1990. This employment
continued uninterrupted with two subsequent contracts which
had terms running from April 1, 1990 to September 30, 1990 and
October 1, 1990 to March 31, 1991, respectively
Approximately two weeks prior to the expiry date of his
last contract the grievor received the foli~wing letter dated
March 1'4, 1991 from Mr. Doug Olver, Snr. Asst.
Superintendent/Operations:
This letter is to confirm our earlier conversation
in regards to your current employment contract.
Since you were not successful in attaining one of
the classified positions from the recent
competitions, I have decided that your contract
will not be renewed after March 31, 1991~
4
If you have any questions regarding the
aforementioned information, please do not hesitate
to contact me.
The employer has taken the position that even if the
union establishes that the decision t° not renew the contract
of an unclassified employee was tainted or solely motivated by
bad faith, the Board has no jurisdiction to review that
decision. Counsel points out that the Board derives its
jurisdiction from the following provisionr~ ..of the Crown
EmploYees Collective BarGaining Act:
15(2) In addition to any other rights of grievance
under a collective agreement, an employee claiming,
(a) that his position has been improperly
classified;
(b) that he has been appraised contrary to
the governing principles and standards;
or
(c) that he has been disciplined or dismissed
or suspended from his employment without .-
just cause,
may process such matter in accordanCe with the
grievance procedure provided in the' collective
agreement, and failing final determination under
such procedure, the matter may. be processed in
accordance with the procedure for final
determination applicable under section 19.
19.-(1) Every collective agreement shall be deemed
to provide that in the event the parties are unable
to effect a settlement of any differences between
them arising from the interpretation, application,
administration or alleged contravention of the
agreement, including any question as to whether a
matter is arbitrable, such matter may be referred
for arbitration to the Grievance Settlement Board
and the Board after giving full opportunity to the
parties to present their evidence and to make their
submissions, shall decide the matter and its _:
decision is final and binding upon the parties and
the employees covered by the agreement.
Counsel further relies on article 27.16 of the collective
agreement, which provides that the Board has no jurisdiction
"to alter, change, ·amend or enlarge ~any provision of the
collective agreement." She contends ·that' the grievor was
asserting a right to have his contract renewed. She points
out that such a right is not among the rights over which
employees are allowed to grieve under section 18 ( 2 ) .
Similarly she sUbmits that the -B0ard's jurisdiction under
section 19(1)· is to determine differences "arising from the
interpretation, app 1 ication, administration or a 1 leged
contravention of the agreement ...". Employer ~counsel points
out that the grievor's employment was not ·terminated prior to
the expiry of his contract. Rather, his employment ended with
the expiry of the term of his contract. She submits that in
the circumstances, the· grievor ceased to be a public servant
under section 9 of .~tke Public Service Act whick provides:
9. A person who is appointed to a position in the
public service for a specified period ceases to. be
a public servant at the expiration of that period.
Counsel points out that the only provisions of the
collective agreement that apply'to unclassified employees·are
those specified .in article 3 of the collective agreement.
Since that article does not include a right to renewal of
contracts, the Board has no jurisdiction under section 19(1)
of the Act over these grievances. Since the grievor had no
statutory or contractual right to renewal of his contract, and
since the employer had no statutory or contractual obligation
to offer ~urther employment to the grievor, it is submitted
that his grievances are outside the scope of the Board's
jurisdiction.
Counsel relied on the following authorities: Re Johnson
and Szpakowski, 72/76 (Swan), Re Bond, 173/78 (Adams), Re
Skaleski, 429/82 (Draper), Re Simpson, 694/85 (Kennedy), Re
Cascagnette 1246/85 (Brandt), Re ShiDle¥ 223/86 (Samuels), R_ge
Mitchell, 340/88 (Samuels), Re Healey, 485/88 (Fisher) and R__e
Milks, 1000/92 (Low).
The "bad faith" relied upon by the union arises out of an
allegation that Mr. Olver made a specific and deliberate
decision to not renew the grievor's contract beyond March 31,
1991, motivated in whole or in part by a desire to retaliate
against the grievor because Mr. Olver perceived the grievor as
someone who would go to the union for assistance when he had
disputes with the employer.
Union counsel concedes that where the term of a contract
of an unclassified employee simply runs out without the
employer making any deliberate decision about renewal or where
a decision is made.to not renew in good faith, the Board has
no jurisdiction. Counsel submits, however, that at the Vanier
Centre there was a practice, whereby the employer reviewed
each classified employee's performance and the employer's own
operational needs as the employee's contract terms neared its
end. -The employer made a deliberate and conscious decision
whether or not each employee's contract would be ~llowed to
terminated or whether the employee will be offered continued
employment through a renewal of his contract. For all
Practical purposes, if an employee's employment relationship
ends, it is not as a result of the Operation of section 9 of
the Public Service Act, but as a result of the employer's
decision to notlrenew. In other words, counsei submits that
all that section 9 does is set out the legal consequences
where an unclassified employee's contract comes to an end. It
_is the employer who decides whether a particular employee's
contract Would be allowed to terminate or whether it would be
extended for a further period. Counsel concedes that that
employer decision falls.within the ambit of the exclusive
management functions reserved for the employer under section
18(1) of· the" Crown Employees Collective Bargaining Act.
However, he cited what was referred to as "an evolving line of
recent decisions", which holds that the Board has the
jurisdiction to review management's exercise of its exclusive
functions for bad faith. Particular reference was made to Re·
BramDton Hydro Electric Commissi0n.,' (199·3) 15.0.R. (3rd) 773
(Ont. Div. 'Ct.) and the court decisions cited therein, and R_ge
Bousquet, 541/90 etc. (Gorsky). Counsel submits that this new
line of cases is preferable to the outdated Grievance
Settlement Board jurisprudence relied upon by the employer.
It is his position that on an application of the principles
and reasoning in the current jurisprudence, the Board has the
jurisdiction to review the employer's decision whether or not
to renew the grievor's unclassified contra.ct for bad faith.
In the alternative, union counsel submits that even if
the Board'agrees with the employer's position that the Board
has no jurisdiction generally to review the employer's
decision relating to a renewal of an unclassified contract, it
still does not deprive the Board of jurisdiction in this
particular case. Counsel submits that the rationale of all of
the decisions relied upon by the employer was that in the
absence of any violation of a contractual right, the Board had
no jurisdiction to review employer action for bad faith. His
primary position is that that line of decisions is no longer
good law in light of the more recent jurisprudence of the
Board. However, he submits that in: any event, in this
particular case the employer's bad faith decision relating to
the renewal of the grievor's contract had the effect of
undermining the exercise of the grievor's other rights under
the collective agreement.
The case law relied upon by the ·employer has been
repeatedly reviewed by the Board. The reasoning in those
decisions is similar to the following often quoted
observations of the Board in Re Shipley (suDra):
But this is not a case involving a violation of the
collective agreement. The grievor does have rights
under the collective agreement, pursuant, to Article
3 and other provisions, but these rights apply to
him only while he is a member of the unclassified
staff. The employer did not breach any rights
which the grievor had during the. grievor's term of
employment. The substance of~ the grievor~s
complaint is that he did not.have employment after
the term of his contract expired. But he had no
contractual right to renewal·,· and there was no
violation of his contractual~rights during his term
of employment.
In like vein, Article 27.1 of the collective
agreement gives us jurisdiction over "complaints or
_ _ differences between the parties arising 'from .the
interpretation, application, administration or.
alleged contravention of this Agreement".. Again,
this case does not fall within the types of matter
over which we have jurisdiction.
(pp. 4-5)
Then after referring to a passage from Re Humeniuk,
614/84 (Springate) the Board at'p. 8 stated:
We are not sure what the Board meant when it
spoke of "bad faith" in this passage. An
unclassified employee has no contractual right to
renewal'of his contract. Why would it matter if
the failure to renew was "tainted by bad faith"
whatever that would mean in the circumstances)?
This Board simply has no jurisdiction over non-
contractual problems, except for the three matters
mentioned in section 18(2) of the Crown Employees
Collective Bargaing Act.
The more recent case law dealing with the right of an
arbitrator to review employer action may for convenience be
divided into two groups. The first group deals with the
~general right of an arbitrator to review the exercise of
management rights for bad faith. The second group consists of
decisions of this Board that specifically deals with the
Board's jurisdiction to review an employer's decision to not
renew the contract of an unclassified employee for bad faith.
We will deal with each group in turn.
Decisions not dealing with the s~ecific issue of renewal of
unclassified contracts
The Board in Re Bousquet dealt with a number of
grievances. One of the grievances related to an allegation
that the grievor had been denied a training and development
opportunity because he was a Francophone. The employer
objected to the Board's jurisdiction on the grounds that "the
provisions of section 18(1) of the Act vested in the Employer
an unqualified right to decide which employees received
training and development, as that exclusive function could in
no way be out down by any provision in the collective
agreement, and there was no statutory provision which had to
be accommodated by it. That is, the parties could not
negotiate with respect to the subject; in this case, training
and development. If they did, their agreement could have no
effect."
The Board in Re Bousquet did an extensive reView of ~he
jurisprudence,-including the judgements in Re Metropolitan
Toronto Board of Commissioners of Police and Metrouolitan
Toronto Police Association et al, (1981) 3.30.R. (2d) 476
(C.A.), Re Council of. Printing Industries of Canada and
Toronto Printing Pressmen and Assistants'_Union No. l0 et al,
(1983), 42 O.R. (2d) 404 (C.A.) and Re C.U.P.E. Local 43 and
the MuniciDality of Metropolitan Toronto, (1990), 74 O.R. 239
(C.A.).
We will not review the discussion of the applicable case
law contained in Re Bousquet. However, we note that on the
basis of the principles enunciated by the Court of Appeal, the
Board stated at p. 58 that, "This ~does not mean that the.
employer' has carte blanche to do what it wishes under the
purported exercise'of an exclusive management function with.
respect to training and development". The Board concluded
that in exercising its exclusive management function relating
to training and development, the employer had a duty to act in
good faith. The Board discussed the meaning of good faith and
held at p. 64:
In'the case before us, it is difficult to view
the provisions in.s. 18(1) of the Act, which, remove
the .subjects of training and development from
collective bargaining as being other than a
statutory direction granting unfettered discretion
to the Employer in making decisions to grant or
withhold training and development opportunities,
and, as such, being subject only to the good faith
test described above.
In Re Bousquet at p. 33 the Board quoted with approval
the following passage from the judgement of the Court of
Appeal in Re Metro Toronto Police (supra) at p. 256:
In other words, it is not patently
unreasmnable for an arbitrator to oblige management
to exercise its discretion reasonably, where to do
so unreasonably would, be to create a conflict with
or undermine the rights conferred by some other
provision in the collective agreement.
The Board went on to observe at p. 35:
Thus the significant fact required to place a
limitation on the unfettered exercise of a
management right is the existence of a provision in
the collective agreement which would either be
negated or unduly limited by particular
application of such right.
On the facts before it, the Board held at pp. 35-36 as
follows:
As noted above, if it could be demonstrated
that the .Employer had discriminated against the
Grievor in denying him training and development
opportunities with a view to undermining his
advancement opportunities under article 4, then its
actions could not be said to have been carried out
in good faith, for genuine government purposes.
There is nothing in the collective agreement that
requires the Employer to consider the advancement
opportunities of employees. However, it cannot use
its management rights under s~ 18(1) of the Ac% in
a way which would amount to a deliberate attempt to
interfere with an employee's right to compete for a
promotion. The Employer cannot deliberately tilt
the field with a view to preferring one employee
over another. However, where in good faith and for
genuine government purposes an employee is denied a
training or development opportunity, where the
denial is not founded on a deliberate attempt to
undermine the employee's opportunities for
promotion, the decision will not be interfered
with.
In Re McIntosh, 3027/92 (Dissanayake) one of the issues
was whether the Board had jurisdiction to d~termine a
grievance filed by an unclassified employee wherein she
challenged the results of a job competition on the grounds
that the employer's-selection was tainted by bad faith against
the grievor. The Board recognized that an unclassified
employee's rights under the collective agreement were limited
to those specified in article 3 and.that such rights did not
include a right to 'grieve job competitions under article
4.3.1. Following a review of the Board's recent case law,
including Re Bosquet, the Board stated at pp. 19-21:
In the collective agreement, while unclassified
employees were not given the right to grieve job
competitions on the basis of "relative equality"
under article 4.3.1, the parties have explicitly
recognized that unclassified employees, such as the
grievor, will have a right to participate in job
competitions conducted under article 4. To
facilitate this right to participation, the parties
have extended article '4.1~ to unclassified
employees, giving them the benefit of the' job
advertisements and a right to have their
applications acknowledged. To further accommodate
unclassified employees' participation in job
66~etitions, the parties, have, by extending
article 4.4 to unclassified employees, ensured that
unclassified employees who exercise their right to
participate in job competitions obtain time off to
attend interviews without loss of pay or credits.
Considering the deliberate Steps taken by the
parties to facilitate participation by unclassified
employees in job competitions under article 4,
could it reasonably be concluded that the parties
intended to permit the. employer to act in any
fashion as it wishes, even in an arbitrary .or
unreasonable manner or even motivated by bad faith?
.We do not think so. It is not reasonable to
conclude that the parties'would go to the trouble
of amending the collective agreement'to facilitate,
14
and indeed encourage (by providing for paid time
off in article 4.4), participation by unclassified
employees in job competitions and at the same time
permit the employer to render those provisions
meaningless by acting in bad faith. The bad faith
conduct of the employer would unduly limit, and
indeed negate, the rights of unclassified employees
under articles 4.1 and 4.4. Those rights would be
rendered meaningless. Having facilitated and
encouraged participation in job competitions, it
must reasonably be inferred that the parties would
have envisaged at the very least that those
unclassified employees who do participate will have
their applications considered by the employer in
good faith.
In the circumstances, we find that this Board
has jurisdiction to review the employer's conduct
in carrying out the job competition in order to
determine whether there is merit in the grievor's
allegation that the employer acted in bad faith
towards her.
In Re Bousquet and Re McIntosh, the basis upon which the
Board assumed jurisdiction was that the manner of the
employer's exercise of its exclusive management right
undermined or abridged some other right that the grievor had
under the collective agreement.
There are two decisions, one from the Ontario Divisional
Court and one from the Grievance Settlement Board which appear
to suggest that there is an implied duty to exercise
management rights in good faith. In Brampton Hydro Electric
Commission (supra), the collective agreement did not give a
probationary employee any substantive right to grieve a
discharge and prohibited it "for any reason whatever", and
gave the employer "'sole discretion" in the matter' of the
discharge of probationary employees. In an application for
judicial review of the arbitrator's decision that she had
jurisdiction to review the union's allegation of bad faith,
O'Driscoll J., delivering the judgement'for a unanimous court,
reviewed the court decisions in Re Metropolitan Toronto
(Municipality) (unreported July .3, 1981, Ont. Div. Ct.); Re
Council of Printing Industries of Canada (1983),~42 O.R. (2d)
404 (Ont. C.A.); Re Metropolitan Toronto (Municipality),
(1990), 74 O.R. (2d) 239 (Ont. C.A.) and concluded at p. 782:
1. In my view, the collective agreement before us
has an implied term/article/clause that neither
party to the agreement shall conduct themselves or
act in any way that is in bad faith, arbitrary,
discriminatory or unfair.
2. It will be said "If the parties had intended
that type of implied article to govern their
conduct, it would have been stated explicitly 'in
the collective agreement." It seems to.me that the-
answer to that argument is found in the mere asking
of this rhetorical question: "Can you imagine any
party, while negotiating a Collective agreement,
'bargaining to include an article: ~the parties
shall have the right, at all times and in all
circumstances, to act in bad faith and/or in an
arbitrary manner and/or in a discriminatory way?"
It will be recalled that art. 1.01 of the
collective agreement states, in part: "Both parties
recognize a duty to cooperate in good faith,
individually and collectively, for the advancement
of these purposes."
In my view, the arbitrator had .jurisdiction to
hear the grievance. I so find whether the test for
review be "correctness"or "patently unreasonable".
It was open to the arbitrator to hear the
grievances alleging bad faith and to find
arbitrariness on the part of Brampton Hydro.
The court does not state that the implied term "that
neither party to the agreement shall conduct themselves or act
in any way that is in bad faith, arbitrary, discriminatory or
unfair" arises from any particular provision or language in
the collective agreement. The reference to art. 1o01 is made
only as an after-thought. From its reasoning, the court seems
to be indicating that it is not reasonable to imagine that any
party negotiating a collective agreement 'would contemplate
that either party will have a right to act in bad faith and/or
in an arbitrary manner and/or in a discriminatory way. In
other words, the court is suggesting that such an implied term
arises in every collective agreement.
In Re Lumley, 1257/91 (Gorsky) the Board once again dealt
with~the question of whether it had jurisdiction to review the
employer's exercise of an exclusive management function under
section 18(1) of the Crown Employees Collective Bar~ainin~ Act
for bad faith.
Re Lumley involved a denial of an interview with respect
to a management developmental assignment which the grievor
alleged was in violation of article A.1 of the collective
agreement. The Board considered the allegation to be that the
grievor was discriminated against on the basis of race. One
of the grounds on which the employer objected to the Board's
jurisdiction was that the subject of which bargaining unit
employees would be given training and development
opportunities was not for the Board to decide but' was an
· exclusive management right under section 18(1) the Act. The
employer's position in essence was that it had unfettered
discretion with respect~to those matters which are exclusive
manageme~t rights'under section 18.
It is significant to note that in Re Lumley, the Board
did not decide whether a grievance may b~ founded on a
violation of article A.1. Rather the Board at pp. 50-51
stated:
Even if article A.1 does not specifically
afford an employee the right to file a grievance
based on its having been violated, in considering
whether an employer has acted in good faith, in a
claim based on discrimination in the carrying~out
of a management function pursuant to section 18(1)
(b) of the Act, the Board may examine the evidence
to see whether the employer has discriminated on
one of the prohibited grounds contained ~in the
Ontario Human Rights Code.
At pp. 53-54 'the Board concluded:
Because'of our limited jurisdiction to review
management's exercise of its exclusive function
with respect ~to training and development, the
evidence that we hear must be restricted to whether
Mr. Lumley was discriminated ~against on the basis
of his race. If he was, then the decision could
not be said to have been made in good faith. As
Was noted in Bous~uet, however broad are
management's rights with respect .to carrying out
the exclusive functions assigned to it under the
18
Ack, it cannot act in bad faith. Merely because
the training position was a management one, does
not alter the fact that the Employer, in the case
before us, was determining a matter encompassed
under s. iS(l) (b) "training and development". The
function was being exercised with respect to
bargaining unit personnel under management's rights
.p~rsuant.to s. 18(1) (b) of the Act. To allow the
Employer to decide which bargaining unit employees
will receive training and developmental
opportunities while engaging in discriminatory
practices based on the race of employees would
permit ~he Employer to carry out its rights in bad
faith. It could never have been the intention to
immunize management from challenges based on making
decisions founded on discrimination practised by
reason of race, ancestry, place of origin, colour,
ethnic origin, citizenship, creed, sex, sexual
orientation, age, marital status, family status, or
handicap, as defined in s. 9(1) of the Ontario
Human Rights Code ...". Such acts of
discrimination are prohibited and cannot be equated
with the kind of social discrimination used in the
example given by counsel for the Employer.
On a careful reading of Re Lumle¥, we are of the view
that the Board there did not base its jurisdiction on the
alleged violation of article 1 of the collective agreement.
Rather the Board considered that the existence of bad faith
itself would clothe it with jurisdiction to review an exercise
of management rights. The existence of discrimination
contrary to the Human Rights Code was merely seen as
admissible and proper evidence of bad faith~ Thus at pp. 50-
57 the Board stated:
7. In the circumstances, it is unnecessary to
discuss whether a grievance can be founded on a
violation of article A.1. Even if article A.1 does
not specifically afford an employee the right to
file a grievance based on its having been violated,
in considering whether an employer has acted in
good faith, in a claim based on discrimination in
the carrying out of a' management function pursuant
to section 18 (1) (b) of the Act, the Board may
examine the evidence to see whether the employer
rhas discriminated on one of the prohibited grounds
contained in the Ontario Human Rights Code.
DecisiOns dealing with the specific issue of renewal of
unclassified contracts
Recently the Board has had several occasions to consider
the legal effect of a bad faith decision by the employer to
not renew the contract of' an unclassified employee. R~
Pitirri~ 1685/92 etc. (Kaplan), Re Merson, ~6/93 (Gray) R_~e
Chircop, 3039/92 (Kaufman) and Re Dunlop, 3146/92 etc.
(Dissanayake).
In Re Dunlop, the Board was dealing with two grievances
by the grievor. One grievance alleged that the employer
limited one of her contracts to a term of 3 months instead of
the usual 6 months for reasons which contravened article A-1
and as a result of a desire to penalize the grievor for having
filed a grievance. The second grievance alleged that in
deciding not to renew the grievor's last contract the employer
was motivated by. the same reasons. The employer objeCted to
the Board's jurisdiction to-hear these grievances on the same
grounds as those raised by employer counsel in this case, and
relying on the same authorities cited in this case. Starting
at p. 10, the~Board in Re Dunl°D observed:
,
In Re Pitirri (su__up_~) the grievor alleged that
he had been unjustly dismissed. The employer
argued that the grievor was an unclassified
employee whose last contract was not renewed, and
that since he was no longer an employee after the
expiration of the contract, he had no right to
grieve. It was the employer's position that the
Board had no jurisdiction to determine the
grievance. In Re Pitirri, the grievor had a number
of employment contracts starting December 4, 1989.
His last contract ran from April 1, 1992 to
September 30, 1992. In 1992 he was diagnosed as
suffering from ulcerative colitis. In July 1992 he
submitted a medical note which disclosed the
diagnosis and stated that "he should avoid shift
work". Shortly before the expiry of this last.
contract the employer made an offer to accommodate
the grievor's illness, which wag contained in an
employment contract scheduled to run from October
1, 1992 to March 31, 1993. It was clear that had
the grievor accepted that offer of accommodation,
he would have been appointed pursuant to that
contract. However he did not accept the contract
and took the position that the accommodation
offered was inadequate for his medical condition.
Despite the employer's efforts to convince the
grievor that the accommodation offer was adequate,
the grievor refused to sign the contract on those
terms. The ultimate result was that the grievor's
contract was not renewed.
The Board at pp. 14-15 stated: -
While it is undoubtedly the case that
unclassified employees, at the conclusion
of their contract, have no new Collective
Agreement rights, it cannot, in our view,
be correct that the conclusion of an
unclassified employee's contract of
employment extinguishes rights which
arose during the period of employment
when the employee was covered by the
Collective Agreement.
Article 3 of .the Collective Agreement
sets out various entitlements of
unclassified employees. What if, for
instance, an unclassified employee was
not paid overtime on the last day of his
or her. employment. According to Mr.
Benedict, the next day that person would
not be an employee but would be a member
of the public with no right to grieve and
the Board would be without jurisdiction
to hear that grievance. In our view,
where a Collective Agreement entitlement
arises during the course of employment,
in some circumstances the individual may
remain an employee for the purpose of
filing a grievance after the employment
relationship has come. to an .end.
Whatever the decision in Parry stands
for, it is not the proposition that
.Collective Agreementand statutory rights
of employees that arise during the course
of employment are in every case
extinguished at its conclusion. To reach
this result would be to deny employees in
some cases, such as this one, the benefit
of the Collective Agreement.
In this case the 'grievor's Article A
rights were allegedly infringed while he
was an employee, and it is on this basis
that we are taking jurisdiction with
respect to his case. The first
accommodation offer was made to him one
week prior to the end of his.employment
contracted.and was repeated on the last
.day of that contract. The offer was
declined, and a timely grievance was
filed. Obviously in taking jurisdiction
in this case we are making no findings
whether the employer had an accommodation
obligation, and if it did have such an
obligation, its nature and extent. All
we are doing is finding that there might
have been a violation of Article A while
the grievor was an employee, and that
this alleged violation is properly before
the Board. As already indicated, the
fact that the grievor would have been
offered a successor contract had he
accepted the employer's~ accommodation
offer has figured prominently in our
deliberations. It is in this respect
that the grievor's allegation of unjust
discharge is directly linked to the
allegation of a violation of Article A.
· While all' the evidence is not in, it is
worth 'observing at this point that the
employer's general, approach to this
grievor raises more questions than
answers. The duty to accommodate
necessarily involves consultation with
the affected employee who must in turn
respond reasonably to bona fide
accommodation offers. A "take it or
leave it" approach in the last week of an
employee's contract, with a promise of
renewal if the employee "takes it", and
the prospect of no further employment if
he or she "leaves it" would not appear to
satisfy the employer's obligation to
effectively consult with the employee.
To countenance such an approach would be
to gut the provision, in so far as it
covers unclassified employees,
particularly in a case such as this one
where the grievor had been employed under
successive contracts for several years,
and only stopped being employed when he
sought accommodation under Article A and
did not accept the accommodation that was
offered to him. In reaching this
conclusion we are not granting any new
rights to unclassified employees at the
end of their terms of employment.
Rather, all we are doing is .recognizing
the necessarily continuing nature of some
Collective Agreement rights including
Article A rights which arise while an
individual is an employee.
Accordingly, the line of cases relied on
by the employer about the status of
former unclassified employees are of no
assistance to us in this case. Likewise,
the pre-Beresford cases are of little
value for they predate the existence of
Article A. While panels of this Board
were once prepared to find.that a Droven
violation of the Ontario Human Rights
Code was inarbitrable, the existence of
Article A changes that situation for its
incorporation into the Collective
Agreement means that its alleged
violation is properly within the
jurisdiction of the Board.
It is to be noted that the "line of cases" the
Board found to be of no assistance included Re
ShiDlev and Re Healey, both of which pre-dated
article A.1, and which are relied upon by the
employer here.
In Re Merson, the grievor was an unclassified
employee who had' a series of contracts between
September 1990 and June 30, 1993. In October 1992
he was injured at work and made a worker's
compensation claim. On his' return in December,
1992, he grieved that his work assignments had been
changed. 'This grievance was settled. While all
his prior contracts were of 6 month duration, in
February 1993 the grievor was informed that upon
the expiry of his last 6 month contract on March
31, 1993', his'contract would only be renewed for 3
months. He grieved that decision alleging
discrimination. On June 22, 1993 he was informed
~that his contract would not be renewed beyond June
30, 1993. This decision was also grieved.
The employer argued that the Board lacked
jurisdiction to review the length of an
unclassified employee's term contract nor a
decision about whether to renew such a contract.
The union alleged that the employer's decision
to limit the contract to 3 months and subsequently
to not renew was a response to the grievor's injury
and'workers compensation claim, as well .a~ his
filing of grievances. The union argued that as an
unclassified employee .the grievor was covered by
article A (no discrimination)and article 27 (Right.
to grieve). It was the union's position that the
employer~'s decisionto limit the grievor's contract
to 3 months and subsequently to not renew was
because he had been injured at work and had made a
worker's compensation claim. These-decisions were
made while the grievor was still an employee and
were contrary to article Aol. Similarly, it 'was
argued that retaliation because the grievor filed
grievances amounted to a denial of the grievor's
right under article 27 to grieve. ·
The Board in Re Merson reviewed the Board's
decision in Re Pitirri, and at pp. 8-9 concluded as
follows:
It is true that the factual allegations
in ~itir~i were different from those
here. There, the disability was
persistent and required accommodation.
The employer had offered a form of
accommodation which the grievor
considered inadequate. The grievor was
told his contract would be renewed if he
agreed to the accommodation offered.
When the grievor persisted in his
position that the offered accommodation
was insufficient, his contract was not
renewed. Here, there is no allegation
that the grie¥or required accommodation
at the time of the impugned decisions.
Here, the allegation is that'the employer
responded improperly to past events.
Given the OHRC definition of "because of
handicap" which the parties have
incorporated byreference into Article A,
discrimination because of a past Workers'
Compensation claim is as much a violation
of Article A as a failure to accommodate
an ongoing handicap.
The fact that there is no issue of
accommodation here is not a material
distinction for purposes of the question
now before us. Here, as in Pitirrl, the
union alleges that a decision not to
renew the ...contract of an .unclassified
employee, made while the individual was
st i 11 employed and covered by the
parties' collective agreement,
constituted discrimination contrary to
Article A of that collective agreement.
Here, as in Pitirri, the union alleges
that but -for the discrimination, the
grievor ' s contract would have been
renewed. As in Pitirri, the issue at
this stage of these proceedings is not
whether these allegations are true; the
issue is whether they raise an arbitrable
dispute. In Pitirri, the Board found
that it did. We do~ too, and for
essentially the same reasons.
Finally in Re ChircoD, the Board held
following the reasoning in Re Pitirri and Re.
Merson, that the Board had jurisdiction to review
appointments to the unclassified service where
there was an infraction of article A.
Counsel for the employer distinguishes the
facts here from the facts in Re Pitirri. He reads
the decision in Re Pitirri as merely holding that
the Board had jurisdiction to deal with a violation
of article A.1 which took place during the period
of time when the griever was still an employee
under contract. In that case, according to him the
violation over which the Board seized jurisdiction
was. the failure of the employer to offer
accommodation in accordance with its 'obligation
under article A.1. He compares that situation to
the grievance filed by Ms. Dunlop (file 3164/92)
alleging discrimination, based on the
superintendent's statement to her at a time when
she was still an employee. He concedes that the
Board has jurisdiction in those circumstances.
However, he contends that the Board has no
jurisdiction to review the employer's decision at
the end of a contract, as to the length of the next
contract or its decision not to offer any contract '
at all.
Counsel.~ quite bluntly submits that the
decisions in Re Merson and Re chircoD are simply
wrong in assuming jurisdiction'to, review'employer
decisions as to the renewal/length of unclassified
contracts.
We cannot agree with the restrictive reading~
of Re Pitirri advocated by employer counsel. At p.
2 the Board. notes that the griever "grieves that'he
has been unjustly dismissed from employment".' It
is clear that the griever was alleging that this
unjust dismissal took place when the employer
decided not to renew his contract. In that case,
the employer's offer of-~accommodation and the
griever's refusal to accept the same were
considerations which ultimately caused the employer
to decide.not to renew the griever's contract. At
p. 15 the Board states "As already indicated, the
fact that the griever would have been offered a
successor contract had he accepted the employer's
accommodation offer has .figured prominently in our
deliberations. It is in this respect that the
griever's allegation of unjust discharge, is
directly linked to the allegation of~a violation of_
~Article A." (Empha~sis added).
The grievance there was about the "unjust
dismissal" arising out of the employer's decision
to not renew the employment contract. The Board
seized jurisdiction over that grievance on the
grounds that the employer's decision was tainted by
an inappropriate consideration,, namely, the
employer's unwillingness to accommodate the
grievor's disability as required by article A.
The Merson case is remarkably similar to the
case before us. There the Board seized
jurisdiction to review the employer's decisions to
limit the grievor's contract to only 3 months and
to subsequently not renew it at all, on the basis
that there had been violations of the collective
agreement in the course of the ~decision making
process.
In those cases the factual basis for the
employer's decision [i.e. the failure to
accommodate (Re Pitirri) and the grievor's claim
for workers' compensation and filing of grievances
(Re Merson)] which gave rise to the violation of
the collective agreement, occurred while the
grievor was still an employee. And the employer's
decision' with respect to renewal were also made
while the grievor was still an employee. Thus the
employer's decisions regarding the unclassified
contracts were "directly linked" to the violations
of the collective agreement.
The case before us is no different. On the
assumed facts, the employer's decisions with regard
to the grievor's employment contracts were taken
for discriminatory reasons, which are proscribed by
the collective agreement, arising out of
circumstances that occurred during the grievor's
period of employment.
Rejecting employer counsel's submission that the previous
decisions of the Board were manifestly wrong, the majority
concluded at p. 19:
For all of the foregoing reasons, we have
concluded that if the union is correct'that the
impugned decisions of the employer were taken
because of reasons which constitute a violation of
the collective agreement, the Board does have
jurisdiction to deal with the two grievances in
question.
At the hearing before us, there was much debate as to the
relevance of the Board's prior decisions dealing with bad
· faith in the exercise of management rights. It was suggested
that those ·decisions had no ·application·here, because the
employer's authority over unclassified contracts was not a
management right derived from section 18(i)~ of. the Crown
Employees Collective BargaiDinq Act, but a specific authority
conferred by sections 8 and 9 of the Public Service Act.
There was also disagreement as to whether that case·law stood
for the·proposition that the mere presence of bad faith in..the
exercise of management rights gave the Board jurisdiction or
whether it was a precondition to jurisdiction that the bad
faith conduct resulted in the undermining of some other
collective agreement right of the grievor.
While we have reviewed that case law, for purposes of
determining the jurisdiction issue before us, it ·is not·
necessary for the.Board to resolve those issues. In our view,
the facts before ·us fall squarely within the principle
enunciated in the Pitirri, Merso~; ChircoD and DunloD
decisions, namely, that if the employer's decision to not
28
renew the contract of an unclassified employee was taken for
reasons which results in the undermining or abridgement of any
right of the grievor under the collective agreement,then the
Board has the jurisdiction to review that decision.
In Re Merson, as well as Re Dunlop, the "bad faith" that
influenced the employer's decision to limit the term and/or
not renew the unclassified contract was the desire to
retaliate because the grievor had filed grievances. Article
27 of the collective agreement clearly grants employees the
right file grievances. Article 3 extends this right to
unclassified employees also. Not renewing an employee's
contract because the employee grieYed undermines that
employee's right to grieve under article 27. That is the
basis upon which the Board in Re Merson and Re Dunlop seized
jurisdiction.
in the present case there is some difference in the facts
in that the allegation is not that the employer retaliated
because the grievor filed a grievance, but because he sought
the assistance of the trade union with regard to work-related
concerns short of filing a grievance. However, in our view,
the right to seek.assistance from the union must necessarily
be seen as an integral part of an employee's right to grieve
itself. It does not make sense that article 27 would grant a
right to grieve, but not a right to consult with the union.
Therefore if the employer acted in "bad faith" in the sense_of
retaliating against the grievor for seeking assistance from
the union, by not renewing his contract, that exercise of the
employer's authority has the effect of 'undermining the
grievor's right to grieve. As in cases such as Re Pitirri, R~
Merson and Re Dunlop, the factual basis here which gave rise
to the undermining of collective agreement rights, namely the
seeking of assistance from the union, arose while the grievor
was.still an employee. As in those cases, here the employer
made a conscious decision not to renew the grievor's contract.
That decision was also made while the grievor was still an
employee. The union alleges that if not for the bad faith the
decision would have been made to renew. If that happened the
grievor's contract would have been extended for ~ further
period and he would not have 'ceased to ~be a public servant
under section 9 of the Public Service _Act° Therefore the
employer's bad faith decision (if proved) will be directly.
linked to the undermining of the grievor's collective
agreement rights.
For those reasons, following the reasoning in the
previous decisions cited above, the Board finds that these
grievance are arbitrable.
30
The merits
The grievor commenced his employment as a correctional
officer I on November 14, 1989. Since then he had three
consecutive six month contracts which continued his employment
until March 31, 1991. His employment came to an end on March
31, 1991 when the employer decided not to renew his employment
beyond that date.
During his employment the grievor received three
performance appraisals all of which were done by Shift
~ aha co-signed by other members of
Supervisor, Mr. Norm Sauve,
management. The first covered the period November 14, 1989 to
February 28, 1990. The appraisal form includes a section
titled "Assessment of critical skills", with a list of eight
critical skills. Each skill is rated from 1 to 5, with rank
1 indicating "unsatisfactory" and 5 indicating "exceptional".
The grievor was rated at 3 in each of the eight skills,
indicating "satisfactory". There are no negative comments
whatsoever in this appraisal. On the other hand, he has been
commended for excellen~ attendance and punctuality. In the
section "Supervisor's comments on overall performance", the
supervisor has noted that "Mr. Jafri .., has apDlied himself
well! Steady progress in learning fundamentals. Always
pleasant and courteous, tries very hard to do a good job.
Most accommodating' to all staff, willing to work. Would
benefit from phase training."
In the second appraisal covering the period March 3, 1990
to August 3, 1990, in 7 out of the 8 critical skills, the
grievor was rated at 3 ie. "satisfactory". In the other, he
is rated at 4.which indicates "commendable". The comments
relating to attendance and punctuality are similar to those in
the first appraisal. The "Supervisor's comments on overall
.performance" section reads: "Mr. Jafri continues to apply
himself. Note n_9o~sick days. Has been counselled on security
matters and will likely benefit from this. Since being
slotted in our Yo unit 8 weeks ago, has been reminded (by both
his supervisors) of general C.O. responsibilities'. This will
also enhance his growth and development. Will also need to
work on his working relations with his peers as he has had
some negative dealings with some staff, now attempting' to
resolve. Mr. Jafri enjoys working with YO clientele and with
further experience and continued effort, is .capable of
developing into a well-rounded officer".
The third and final appraisal, covering the period August
3, 1990 to December'3, t990, rated, four of the grievor's
critical skill areas at no. 3 "satisfactory". The other four
received a nol 4 "commendable!' rating. This appraisal notes
that "with the exception of an unfortunate car accident in
September in which Mr. Jafri was injured, Mr. Jafri has not
utilized any sick days," and that he is "always prompt when
reporting to duty". In the "Supervisor's comments on overall
performance" section, Mr. Sauve wrote: "From his previous
appraisal, I've noted that Mr. Jafri has shown improvement in
overall work performance, especially in offender supervision
and staff relations. Takes directions well. Now "unslotted"
and continues to enjoy working with young offenders".
It is agreed that the grievor has had no discipline
during his tenure of employment with the Vanier Centre.
The effective decision to not renew the grievor's
employment as an unclassified employee was taken by Mr. Doug·
Olver, Senior Assistant Superintendent, Operations. He had no
direct supervision over the grievor. Mr. Olver testified that
in March 1991 he had the responsibility to determine the
renewal of unclassified contracts. Before he did that he
consulted with Mr. Brian Ross, Area personnel Administrator
and inquired what criteria he should use. Mr. Olver testified
that Mr. Ross advised him that he should use 3 criteria (1)
Availability (2) Job Performance (3) Employee's ability to
acquire knowledge of MCS policy and procedure and that an
employee's contract should not be renewed if any one.of the
three criteria was not met. Mr. Olver testified that in early
March 1991 he applied this criteria in deciding whether or not
to extend the contract of each of.the unclassified employees.
He testified that he decided not to renew Ms. Sue Hamilton's
contract because she did not meet the "availably" criterion,
that officers Leblanc and Lavoie did not have their contracts
extended because they failed to meet the "job performance"
criterion and that Ms. Kim~SlesSor and the grievor~were not
offered new contracts because he determined that they had
failed to demonstrate an ability to acquire knowledge of MCS
policy and procedure.
Mr. Olver testified that Mr. Ross specifically instrUcted
him as to how the criterion of "ability to acquire knowledge
of policy and Procedure" was to be applied, that is, by
"evaluating the scores attained by the employees in job
competitions, whether the scores had improved and whether they
had been successful in competitions .' If an employee had
consistently low scores and had not been successful in job
competitions, that was to be treated as evidence of inability
to acquire knowledge of MCS policy and procedure.
Mr. Olver testified that Mr. Ross had advised him that if
he identified any employee as not 'meeting the "knowledge"
criterion, he should first meet with the employee and inform
that if the pattern of low competition scores continued he or
she would be in jeopardy of the contract being not renewed. He
stated that he followed this advice with regard to Ms. Slessor
34
and the grievor, by meeting with each employee in early
January 1991. Mr. Olver testified that despite being put on
notice at the January meetings, Ms. Slessor and the grievor
each participated in a subsequent job competition and both
were unsuccessful. As a result both employees were informed
that their contracts would not be renewed.
It is undisputed that the grievor participated in
competitions for classified correctional officer positions in
February 1990, April 1990 and June 19'90, and that he was
unsuccessful in each. Following the January 1991 meeting, the
grievor participated in two job competitions in March 1991.
The cut-off mark for qualification had been set at 74 percent.
The grievor scored only 53 percent in each of the competitions
and this did not qualify.
Mr. Olver testified that the grievor had continued his
low scores in both March 1991 competitions despite being on
notice from the January meeting that his contract renewal
would be at risk, and as a result had demonstrated that he
lacked the ability to acquire knowledge of MCS policy and
procedure. Therefore, in accordance with the advice he had
received from Mr. Ross, he decided not to renew the grievor's
contract. He insisted that the applicaiton of the "knowledge"
criterion was the sole basis for his decision.
As already noted, 'the union's case is that the non-
renewal of the grievor's contract resulted, in'whole or in
part, from Mr. Olver's motivation to retaliate against the
grievor because he exercised his rights under the collective
agreement by seeking trade union representation. Evidence was
led about disputes the grievor had with regard to two issues,
overtime and sick leave credits. The employer led evidence at
length in order to establish that the employer dealt with and
remedied the grievor's concerns properly and promptly after
they ~were raised. However, the union's contention was not
that the employer handled the grievor's complaints improperly.
The allegation is that the employer retaliated against the
grievor because he sought the union's assistance and succeeded
in getting the employer to agree to his claims relating to
overtime and sick leave credits.
The evidence indicates that in september 1990, Mr. Olver
refused to approve'an overtime claim for 4-1/2 hours made by
the grievor. The employer took 'theposition t~at the work in
question was a shift exchange between employees and not
overtime. With the assistance of the union, the grievor
contested that position. The evidence indicates that the
employer continued to believe that it was a shift exchange but
-the grievor prevailed on what may be described as a
technicality. Ministry practice required shift exchanges to
be documented in an official form. In this case, that
documentation had not been 'completed. When this was
discovered, Mr. Olver approved overtime to be paid, because a
shift exchange could not be substantiated through the usual
documentation.
The grievor's other dispute related to sick leave
credits. In December 1990 the grie¥or challenged the
employer's decision that he did not earn sick leave credits
despite working 40 hours per week, because he was not a
"slotted" officer. Once again he enlisted the union's
assistance. This caused the' employer to seek clarification
from the Regional Office. It was advised by the Regional
Office that the grievor's interpretation of the collective
agreement was indeed correct that an officer did not have to
be "slotted" to be able to earn sick leave credits. This also
revealed that the employer had been applying the sick leave
credit policy incorrectly over a period of time at the Vanier
Centre. As a result the employer was required to pay the
grievor for 5 extra days of sick pay. In addition, the
employer had to have a personnel clerk go back and properly
recalculate earned sick leave credits for each of 32 other
unclassified employees, and make payments to all unslotted
employees who had been off sick.
The employer's own documents establish that at least
three members of management other than Mr. Olver were aware
that the grievor had sought the assistance of the union with
regard to his overtime dispute. However, Mr. Olver insisted
that he was not made aware of that by anyone. Mr. Olver
admitted that the local union president, Mr. John'Villella
called him on one occasion bn behalf of the grievor relating
to the sick leave, credit dispute..He further conceded that he
inqUired from Mr. Villella why the grievor had not called him
directly and that when Mr. Villella· informed that he was
calling on behalf of the grievor~.he made a comment "he could
have called me directly and he should call me directly in the
future".- He testified that he made-that comment because he
wanted "to encourage employees to come to us before.going to
the union."
There was .a substantial amount of conflict between the
evidence of the employer and union .witnesses as to the extent
of time and effort it took, to get the employer to remedy the
grievor's overtime and sick leave credit disputes. There was
conflict as to how much interaction there was, and What-was
done and said during the interaction. We do not attempt to
resolve those conflicts in the testimony because that evidence
is not relevant Ko the determination of this grievance since
the union does not allege bad faith in the manner the employer
handled the Overtime and sick leave credit disputes.
The union alleged that Mr. Olver, who chaired the
selection panel, acted rudely and insulted the grievor during
the last job competition interview. Mr. Olver, corroborated
by other management witnesses, denied any inappropriate
conduct. The grievor's testimony was generally vague and
inconsistent. It was Particularly so with regard to this
issue. We cannot conclude on the evidence that during this
interview Mr. Olver demonstrated any bad faith towards the
grievor.
The grievor also testified that during the January 1991
meeting Mr. Olver again behaved in a disrespectful and
insulting manner and warned that if the grievor continued to
go to the union, he may not have his contract renewed. Mr.
Olver, corroborated by Mr. Malcolm Lenton, a supervisor who
was present at the meeting, vehemently denied that. We do not
propose to resolve this conflict either because we do not have
to rely on those events to determine this grievance.
The main attack by the union on the employer,s good faith
in the renewal decision is based on employer generated
documentation. The union filed an "official MCS document
titled "Employee Separation/Work Performance Record" for the
grievor, dated March 20~ 1991 and signed by Mr. Olver. Mr.
Olver wrote the following comments under the headings as
follows:
Reason for separation (e~. Resiqned/retired~dismissed)
Mr. Jafri has had several opportunities at trying
to obtain a classified position as a correctional
officer. However, he has' not been able to achieve
the results required to win a competition. He was
given one last opDortunity in February 1991 for six
classified positions. He was not successful. As a
resUlt,, his contract was not renewed.
9ualitv of work
Adequately performs assigned tasks to the best of
his ability. Tends to have a much higher opinion
of his.work performance than what the managers rate
him. Does not handle criticism well. Will run to
his union representative for back-up.
(emphasis added)
Working relationship/Supervisor and Co-workers
Has had some difficulty with supervisors and/or
peers from time .to time. Generally gets along
fairly well.
Attendance and Punctuality
Acceptable.
In the section "Would you re-hire this employee,, the box
indicating "no" was checked, followed by the following
reasons:
Mr. Jafri does not appear capable of acquiring a
knowledge base of correctional policies and
procedures to enable him to be successful in a
competition for full-time employment.
It is ~'rthe union's submission that the comment under
Quality of Work "Will run to his union representative for
back-up,,,~clearly demonstrates that Mr. Olver was motivated by
that reason in his decision not to renew the grievor's
contract. Counsel submits that when the decision to not renew
is seen in the light of that comment and the grievor's record
of good work performance as documented by three positive
appraisals, the Board should be driven to the conclusion that
had it not been for the improper consideration the grievor
would have had his contract renewed.
Also filed in evidence was a second "Employee
Separation/Work Performance Record" form for the grievoro
This was dated April 11, 1991 and signed by Ms. R. Pickering,
Superintendent of the Vanier Centre. In this document the
"Reason for separation" is described simply as "Expiry of
contract". Quality of work, working, relationship and
Attendance/Punctuality are all described as "average". Ms.
Pickering also checked the "no" box in the section "Would you
re-hire this employee". The reason is stated as follows:
It was deemed that correctional work did not truly
suit Mr. Jafri. In the opinion of Mr. Sauve, O.M.
16, Mr. Jafri was "somewhat out of his element".
it should be noted that the Board had no explanation as
to how and why the same employee had two separation documents
prepared by two different members of management and containing
different information. Ms. Pickering, the author of the
subsequent document was not called to testify. Mr. Olver was
only able to say' that he was .on vacation on the date the
second document was signed by Ms. Pickering, and that he was
not aware of how and why Ms. Pickering came to prepare that
document.
The union, however, suggested an explanation for the
second document. Counsel submitted that when the employer
realized that it was in trouble by writing in the first
document about the grievor "running to the union for back up",
the second document was prepared in anattempt to sanitize the
situation. Union counsel submits that in order to achieve
that the employer concocted an allegation that "it was deemed
that correctional work did not suit" the grievor, an
allegation which is clearly unfounded and inconsistent with
the positive appraisals the grievor received from the same Mr.
Sauve.
COunsel for the employer submits that on the totality of
evidence-the Board should conclude that the non-renewal of the
grievor's contract was a result of Mr. Olver applying
established, albeit unwritten, criteria for assessing
unclassified employees, and that there was no bad faith
involved in that decision. Counsel urges the Board to
conclude that his notation about the grievor running to the
union for back up was merely "an isolated observation", which
formed no part of the reasons for the non-renewal. She notes
that that observation was included under the heading "'quality
of work" and not the heading "Reason for separation". She
points out that under the latter heading the real reason for
non-renewal has been set out, namely, the lack of success at
job competitions. With regard to the performance appraisals
the grievor had received, counsel submits that in accordance
with the advice given by Mr. Ross to Mr. Olver, those were
relevant to the assessment of the second criterion of "Job
Performance". She submits that the grievor met that criterion
based on his appraisals. His non-renewal was based on the
failure to meet the third criterion of'"ability to acquire
knowledge of policy and procedure" which was to be assessed on
the basis of an employee's performance in job competitions.
With regard to the second "Employee Separation/Work
Performance Record" prepared and signed by Superintendent
Pickering, counsel points out that there is no evidence why
and how that was prepared. She submits that in the
circumstances the Board is unable to conclude that it was an
attempt to sanitize a prior tainted document. Counsel is of
the view that if the union's bad faith allegation is to be
upheld, the Board must draw a conclusion of bad faith from the
comment Mr. Oluer made with regard to the grievor running to
the union. She submits that Mr. Olver has satisfactorily
explained that comment and that in any event it w6uld be
inappropriate for the Board to uphold such a serious allegation
the basis of an'isolated observation.
There is no question that during his examination in chief Mr.
olver testified that his c~mment was a mere observation,, which was
of no significance to· his decision on the renewal. He also
insisted that his decision was based on. the application of a MCS
policy. Given that the appraisals establish, and the employer has
conceded, that the grievor's job performance was satisfactory, the
Board must determine the credibility of Mr. Olver's.testimony as to
the real reasons.for his decision, We' agree with e~ployer counsel
that the written comment about running to the union by itself
should not be accepted as proof of bad faith. The Board must
consider the credibility of the employer's explanation of the basis
upon which the decision was made and its explanation of the comment
itself, in light of all of the relevant evidence surrounding the
decision making process. ...
We first turn to Mr. Olver's comment in~ the MCS separation
document, "will run to his union representative for back up",- which
was included under the heading "Quality of Work". Mr. Olver
insisted under crossrexamination that his only knowledge of the
grievor's union involvement was the one telephone call he received
from the union president relating to his sick leave credit dispute.
He said that he made the notation because the grievor had not come
to the management with his problem first, before going to the
44
union. He testified that he was not being critical, but was'
attempting to encourage the grievor to come to management first.
He testified that that was also the intention when he made the
comment to Mr. Villella on the telephone.
Under cross-examination Mr. Olver agreed that in his written
comment he was not stating that the grievor did not come to
management first but was commenting that the grievor was going to
the union for back up. Then the following exchange occurred:
Q. If he had gone to the management first about
his sick credits you would have felt his
quality of work was better?
A. (After a long pause) I'd say itwill be easier to assess.
Q. Would you have written that comment if he did
so?
A. If Mr. Jafri came to me directly I wouldn't
have got that impression.
Agree that this is a negative comment?
A. Its just an observation.
Q. I thought Box A is headed "Quality of Work"
and the purpose is to put negative and
positive things about an employee's work
performance?
A. It depends on one's interpretation.
Q. was his running to the union relevant to his
quality of work?
A. I think so.
Q. How?
A. Based on my dealings with him.
Q. Why is the fact that he runs to the union for
back up. relevant to'his quality of work?
A. To me it was. I was.encouraging him to come
to me directly.
Q. When you say "will run" you are suggesting.a
habit - not that he went once?
A. Its based on my conversation with Mr.
Villella.
Q, You described a characteristic based on the
one conversation?
A. Yes. My dealings with Mr, Jafri were minimal.
Mr. Olver testified that eventhough the telephone call from
the trade union representative was in December 1990, the grievor's
running to the union was not "an issue" in his own mind at the time
of the January 1991 meeting he had with the grievor to discuss the
grievor's future employment. .The following cross-examination
followed:
Q. Are you suggesting that the concern was lying
dormant in the back of your mind between
December 1990 and March 19917
I won't say dormant'. It wasn't an issue in my
mind until his contract came up for renewal
and I considered him for renewal under the
sub-categories.
Q. I am talking about your concern about him
running to the union - are you telling usthat
it didn't surface until you wrote the
separation?
A. Yes. At that time I had to look at all
aspects 'in evaluating his employment.
So it was a factor in evaluating his
employment?
46
A. Yes.
Mr. Olver testified that numerous correctional institutions
throughout the province employ unclassified employees and that
decisions have to be made on the renewal of each unclassified
contract, and that the Ministry has a policy stipulating 3
specific criteria to be applied in making decisions on renewal.
However, it is the employer's position that this policy, the
specific criteria, or how the criteria are to be applied, are not
to be found in written form anywhere.
Having carefully reviewed the totality of the evidence, we are
unable to conclude that the grievor's contract renewal was made
solely on the basis of an application of a policy as claimed. The
absence of a written policy, to say the least, strikes us as very
unusual, considering that the Ministry employs unclassified
employees extensively in its facilities throughout the province,
and decisions have to be made with regard to each contract. If the
Ministry had a consistent policy requiring the application of three
specific criteria, it seems strange that those criteria are. not
written anywhere. Our doubts are further increased by several
other problems with the employer's evidence.
Firstly, Mr. Olver testified that he was instructed to apply
the three criteria by Mr. Brian Ross, the Area Personnel
Administrator and further that Mr. Ross gave specific instructionb
as to how the third ~riterion Was to be applied, that is lack of
success at comDetitions is-to be treated as a lack of ability to
acquire knowledge of policy and'procedure. Particularly in the
absence of any written policy,, it would have been reasonable to
expect that Mr. Ross would be called to confirm that such a policy
existed and to corroborate that the he instructed Mr. Olver to use
such a policy. However, Mr. Ross was not called. Nor do we have
any evidence that such a policy was ever used by any other MCS
institution.
Another area of evidence that casts doubt on the employer's
evidence that Mr. Olver merely applied a MCS polic~ is the evidence
relating t° two other unclassified employees. As noted, Mr. olver
testified that.he applied the same criteria to all unclassified
employees, and that Ms. Sue Hamilton's' contract was not renewed
because she failed to' meet the "availability" criterion. The
employer did not produce any documentation, such as an "Employee
Separation/Work Performance Record" to substantiate that the
reason for non-renewal of Ms. Hamilton's contract was the concern
about her availability. ~On the other hand, the union filed ~two
documents, a "Payroll Deletion Notice" and a Employment and
~Immigration Canada "Record of Employment" form completed by the
employer for Ms. Hamilton.' Both documents state that Ms. Hamilton
was laid off because the return of full-time staff from maternity
leave created a surplus, of unclassified staff.
48
With regard to Ms. Kim Sless0r, Mr. Olver testified that he~
contract was not renewed for the same reason as the grievor, that
is that she failed to meet the criterion of ability to acquire
knowledge of MCS policy and procedure. During Mr. Olver's cross-
examination union counsel sought to enter a document which he
claimed would contradict that evidence and show that Ms. Slessor
was in fact not renewed for a different reason, namely, due to
operational requirements. The evidence is that Ms. Slessor grieued
her non-renewal and that the grievance was settled by the execution
of Minutes of Settlement. The terms of' the settlement were as
follows:
Whereas the Parties wish to enter into a full settlement
of the above captioned grievance, they hereby agree to
the following terms of settlement.
1. The grievor and the union hereby withdraw the
grievance;
2. The employer agrees to pay to the grievor the
sum.of Two Thousand dollars ($ 2,000.00) less
mandatory deductions within sixty days (60) of
the execution of~this settlement;
3. The employer agrees to amend the Employee
Separation/Work Performance Document Box D,
dated April 30, 1991 from "no" to "yes" and to
add a sentence stating that "The employee is
recommended for continuing unclassified
employment";
4. The employer agrees to provide the grievor
with the letter of reference attached to these
Minutes of Settlement as Appendix "A";
5. The parties agree that these Minutes of
Settlement are without precedent or prejudice
to any other proceeding.
Dated Friday October 11 '91
49
Appendix "A" referred to in paragraph 4 above was
attached to the minutes and reads:
To whom it may concern:
Re: Kimberlv Slessor
Kimberly Slessor was employed as a Correctional office at
the Vanier Centre for women operated by The Ministry of
Correctional Services Government of Ontario between'the
dates of July 3 '89 and March 31 '91.
Due to operational requirements Ms. Slessor's services
were no longer required upon the completion of her
contract.
(Emphasis added)
Union counsel sought to file the Minutes of Settlement and to
cross-examine Mr. Olver about the conflict.between the reason for
non-renewal he had given during testimony, and the reason given in
· .- the emphasized portion of the letter of reference which the
employer had agreed to provide.
Employer counsel' vehemently opposed the admission of this
document On the basis that it was a settlement document. She
submitted that settlements are confidential and entered into on a
"without prejudice" basis. She argued that nothing in a settlement
document can contradict Mr, Olver's direct testimony becauseit was
not unusual for a party to'agree to irrational,terms in order to
resolve a grievance. Employer counsel attempted'to convince the
Board that it was inappropriate to admit the document by stating as
follows during her submissions: ."If you allow this document in;
there will' be an application for judicial review so fast that your
heads will spin and there will not be any settlement in this or any
other ministry in the future".
Having considered the parties' submissions, the Board orally
ruled unanimously that the document will be admitted. At employer
counsel's request, we digress to provide the following reasons for
the ruling.
It is true as pointed out. by emplOyer.counsel, that as a
general rule this Board will not admit evidence as to what went on
during settlement discussions. The Board would be less reluctant
to admit a settlement document, such as 'Minutes of Settlement.
However, still it would be fair to say that the Board would not
routinely admit settlement documents, on a recognition that terms
of settlement are usually agreed to on a without prejudice basis.
However, this deference attached to settlements,whether they
be settlement discussions or settlement documents, is not absolute.
Where a.particular'~settlement is clearly relevant to an issue in
dispute before the Board, the Board would admit evidence relating
to the settlement. For example, where, an' employer raises a
timeliness objection to a grievance and the union claims that the
51
employer waived the timeliness requirement during the grievance'
procedure, the Board routinely allows detailed evidence as to who
said what during grievance meetings. This is allowed because that
evidence is directly relevant to the issue the Board is required to
determine, i.e. whether timeliness was waived.
In the present case Mr. Olver's motivation is at the core of
the dispute the Board has to decide. In his examination in chief
Mr. Olver testified that his decision to not renew the grievor's
contract was based on a legitimate application of a policy. To
buttress tha~ position, Mr. Olver testified that Ms. Slessor was
also not renewed for the same reason as the grievor. The union
challenged the credibility of Mr. Olver's explanation. It wished
to cross-examine Mr. Olver on the reason he gave, by putting to him
a document which suggests that the reason for not renewing Ms.
Slessor's contract was something different.
The Board does not take the position that the reason for non-
renewal of Ms, Slessor as set out in the settlement document is
conclusive proof that the reason offered by Mr. Olver was false.
However, the evidence the union sought to adduce goes to the very
issue of whether Mr. Olver acted in bad faith. It was entitled to
cross-examine him and seek an explanation from the employer for the
existence of a different reason for non-renewal in the settlement
document. For example, the employer could have led evidence to the
effect that the reason set out in the document was not factual, but
52
something the employer agreed to, simply as a means of achieving
settlement. It would have been up to the Board to. decide Mr.
Olver's credibility as t° the reason for not renewing Ms'. SleSsor's
contract, based on all of the evidence.
In summary, the settlement document contained a factual
assertion that Ms. Slessor's contract was not renewed due to
operational reasons.. This was on its face clearly contradictory to
Mr. Olver's testimony in chief that the reason for her non-renewal
was her lack of success in job competitions.. Since this went
directly to the core of the dispute between t~e parties, namely the
reasons for the non-renewal of the grievor's contract, the Board
determined that the union was entitled to put the document to Mr.
Olver during cross-examination.
Returning now to the merits of the grievance, the Board notes
that its jurisdiction is limited %o a determination of whether the
non-renewal of the grievor's contract was motivated by bad faith or
whether it was based on a good-faith exercise of management
authority. The employer has taken the position that the decision
with regard to the grievor-was made by applying a specific
criterion. If the Board is satisfied that the decision was made by
a good faith aDplication of that criterion the grievance must fail.
It is immaterial whether or not the Board is of the view that the
53
criterion in question is a good method of assessing an employee's
potential for continued employment.
However, the Board is of the view that the rationality, or the
lack of it, of the criterion is something the Board could and
should consider in determining whether in fact it is credible that
the employer had such a policy and whether it applied it to the
grievor. This is particularly so where the only evidence as to the
existence of such a policy is the assertion of the decision maker
that he was instructed by another person to apply it. According to
Mr. Olver, the specific criterion to be applied was "the ability to
acquire a knowledge of MCS policy and procedure". It is his
position that he was advised by Mr. Ross that this criterion was to
be considered solely by considering the employee's success or the
lack of it in job competitions. In other words,, lack of success in
job competitions was to be treated as equal to an inability to
acquire a knowledge of MCS policy and procedure.
Under cross-examination, Mr. Oluer could not explain the
rationality of that logic. His position simply was that he applied
the three criteria as he was instructed. With respect, the Board
simply cannot understand how the lack of success in job
competitions could be taken to necessarily mean an inability to
acquire a knowledge of policy and procedure, because there may be
other explanations for an employee's poor performance in job
competitions. Job competitions consist of oral interviews and
54
examinations. Where more rel~iable evidence is not available,
results of 'these interviews and examinations may be the only basis
upon which the employer may determine an employee's ability to do
the job. However, in the renewal process, the employer had before
it three satisfactory performance appraisals from the person who
was in the best position to assess the grievor's work performance.
That was shift supervisor Mr. Norm Sauve. Based on those, Mr.
01ver admits that he came to the conclusion that the grievor met
the second criterion of "job performance" and that he had already
concluded that the grievor had met the first criterion of
"availability" also.
Given that the grievor's job performance was satisfactory, the
third criterion does not make sense. Under cross-examination Mr.
Olver admitted that in the day to day performance of their duties
correctional officers must know and comply with MCS policies and
procedures. Therefore it must logically follow that, if an officer
is able to satisfactorily Derform his job, as the grievor did, he
must have a satisfactory knowledge of the policy and procedure
relevant to his job. In other words, if he had an inadequate
knowledge of the policy and procedure, he would not be able to
perform his job satisfactorily.
A further consideration is the unusual existence of a second
separation document'for the grievor. Employer counsel dismissed
the significance of this document, stating that there was ~no
55
evidence as to how and why it was prepared. However, this document
is signed by Ms. R. Pickering, the Superintendent of Vanier Centre.
It not only has no reference to the grievor running to the union,
it makes no mention whatsoever of the grievor's lack of success in
job competitions as a reason for the non-renewal of the grievor's
contract. On the contrary it gives the following as the reason why
the grievor would not be re-hired: It was deemed that correctional
work did not truly suit Mr. Jafri. In the opinion of Mr. Sauve,
O.M. 16 Mr. Jafri was "somewhat out of his element".
It is immediately apparent that the conclusion that
"correctional work did not truly suit Mr. Jafri" is clearly
contradicted by the performance appraisals, the last of which rated
4 of Mr. Jafri's critical skills as "commendable" and the other 4
as "satisfactory" and in which the supervisor commented that "From
his previous appraisal I've noted that Mr. Jafri has shown
improvement in overall performance ...". This last appraisal had
no entry or comment which could be regarded as negative.
Throughout his employment the grievor has not received a rating for
any of the critical job skills, which was lower than
"satisfactory". Also his last appraisal was clearly the most
positive, suggesting that his performance had gradually improved.
Therefore, there is an obvious need for an explanation as to how
Ms. Pickering came to the conclusion that corrections work did not
suit the grievor. In the separation document, Ms. Pickering has
attributed to Mr. Sauve a critical assessment of ~the grievor.
Incredibly, neither Ms. Pickering nor Mr. Sauve wee called to
explain these obvious contradictions.
Based on all of the foregoing evidence which casts serious
doubt on the employer's position that the grievor's non-renewal was
based on the bona fide application of a policy, seen in light of
the reference to the grievor "running to the union", in the
separation document prepared by the effective decision-maker, the
Board concludes that, had it not been for Mr. Olver's view that the
grievor was the type of person who would seek the assistance of the
union in relation to his disputes with the employer, his contract
would have'been renewed for a further period beyond March 31, 1991.
Consideration of that factor was contrary to the grievor's rights
under article 27 of the collective agreement. Accordingly, the
grievance is allowed.
Remedv
The Board has concluded that had the employer not acted in bad
faith the grievor's contract would have been renewed. The evidence
indicates that the decision that his contract at the Vanier Centre
would not be renewed had other adverse Consequences for him beyond
the termination of his employment at Vanier Centre. The evidence
is that in March 1991 the grievor Sought a transfer to the Toronto
West Detention Centre as an unclassified correctional officer and
that his request for transfer was not even considered once it
57
became known that vanier Centre had decided not to renew his
contract.
In April 1991, the grievor also applied to the Regional office
for employment as an unclassified employee in any of the
institutions in the Metro-Toronto Region. The evidence indicates
that based on the information contained in the Separation document
(it was not clear whether it was the one prepared by Mr. Olver or
Ms. Pickering) that the grievor would not be re-hired at Vanier
Centre, the grievor was not considered for employment at any of the
institutions in the Metro Toronto Region.
The Board cannot be satisfied that but for the tainted
decision made at the Vanier Centre, the grievor would have been
definitely offered employment by the Toronto West Detention Centre
or the region. However, what the grievor clearly lost as a result
of the employer's bad faith decision was the opportunity to be
considered for that employment.
The Board does not accept the union's position that the
grievor, although an unclassified employee, had an assurance of a
career as a correctional officer, subject only to dismissal for
cause. Employer counsel submits that the..only appropriate remedy
would be a declaration because there is no way of knowing what
would have happened but for the violation in this case. She
submits that there was no proof of any loss.
As in all cases, the Board must attempt to place the grievor
as much as possible in the same position he would have been in, but
for the employer's breach. In most cases that test can be applied
fairly precisely. This unfortunately is not such a case. What the
Board can reasonably conclude is that but for the bad faith
consideration, the grievor would have had his contract extended in
March 1991. It is also reasonable to conclude that in accordance
with the usual practice that extension would have been fur a period
of 6 months. Whether. he would have had further extensions at the
end of that contract would have depended on numerous factors
including the employer's operational requirements at the time, the
grievor's job performance, attendance etc. We can only speculate
as to how those factors might have turned out.
However, the Board disagrees that these circumstances restrict
the remedy to a declaration. The Board is convinced that but for
the breach the grievor would have received at least a further 6
month contract. Beyond that what the grievor lost as a result of
the breach, was the opportunity to be considered for continued
employment with the Ministry. The evidence indicates that as a
policy, the Ministry would not consider an unclassified
correctional officer for further employment, if that employee's
contract had not been renewed and a decision had been made by his
supervisors that he would not be re-hired. This is what happened
with the grievor and we have concluded that it was a result of the
employer's bad faith. If this situation is not addressed-in the
59
remedial order, as a result of the employer's bad faith, the'
grievor would lose any chance of future employment with the
Ministry.
In all of the circumstances the Board directs as follows:
(a) In order to compensate the grievor for the loss of a six
month contract, which we have concluded he would otherwise have
received in March 1991, and to compensate him for the loss of
opportunity to be considered for further continued employment
beyond that six month contract, the employer is directed to pay to
the grievor a sum of money equal to one year of earnings (based on
his earnings during the tenure of employment from November 14 1989
to March 31, 1991) together with interest thereon.
(b) The employer is directed to amend all its records,
including Employee Separation/Work Performance Records, to indicate
that the grievor would be considered for rehire. If the grievor
chooses to apply for employment with th~' Ministry the employer
shall consider his application on its merits in good faith.
The Board remains seized in order to be able to deal with any
disputes that may arise in the implementation of this decision.
Dated this 23day of May, 1995 at Hamilton, Ontario
N. Dissanayake
Vice-Chairperson
P. Klyra '"
· Mombor
I. cowan
Member