HomeMy WebLinkAbout1992-3027.McIntosh.93-12-15
/'
J
},.
-'-
ONTARIO EMPLOYES DE LA COURONNE
"'~ CROWN EMPLOYEES DE L'ONTARIO
GRIEVANCE COMMISSION DE
1111 SEtTLEMENT .
REGLEMENT
BOARD DES GRIEFS
180 DUNDAS.STREET WEST SUITE 2100 TORONTO ONTARIO, M5G IZ8 TELEPHONE TELEPHONE (416) 326~ 1388
180 RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) M5G lZ8 FACS/MILE'TELECOPIE (4161 326-1396
3027/92
)
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
J
THE GRIEVANCE SETTLEMEN~ BOARD
BETWEEN
OPSEU (McIntosh)
Grievor
., - and -
The Crown in Right of Ontario
I~+ (Ministry of Government Services)
\ I
Employer
BEFORE N. Dissanayake Vice-Chairperson
M. Lyons Member
M 0" Toole Member
FOR THE K. Whitaker
GRIEVOR Counsel,
Ryder Whitaker Wright
Barristers & Solicitors
I
FOR THE J Lewis
EMPLOYER Counsel
-- Filion, Wakely & Thorup
Barristers & Solicitors,
BEARING July 22, 1993
I
I ,
!
,
,
2
DECISION
-
)
The grievor, Ms. Anne McIntosh has grieved the results of
a competition for two positions classified as Real Estate
Officer 2.
It is common ground that Ms. McIntosh at all relevant
times was a member of the unclassified service of the ontario
L Public Service. She had been employed from November 6, 1990
( through a number of employment contracts. The union conceqes
;
that she was properly appointed to the unclassified service.
The competition in question was held in July to
September, 1992. As part of the competition process, Ms.
McIntosh was interviewed along with four others.. The two
positions were awarded to two of the other applicants. These
incumbents were provided notice of this proceeding, but
neither was present at the hearing. I
i
I
I
The parties ag~eed that in this award the Board should
restrict itself to the issue of whether under the applicable
I
provisions of the collective agreement, the grievor was
entitled to grieve the results of a job competition, and
I
remain seized for the purposes of 'any remaining issues if the
\
decision is in favour of the union.
\
--
J
~----
..
3
Counsel for the union concedes that in a long line of
cases the Board has held that unclassified employees are not
entitled to grieve the result of job competitions under
I
Cirticle 4 3 1 However, counsel submits that those decisions
were rendered under collective agreements which contained
provisions different to those contained in the collective
agreement that governs this grievance It is the union's I
position that the amendments implemented in the current
collective agreement permits an unclassified employee to
grieve a job competition in the same way as an employee in the
classified service
~
In the alternative, counsel submits that even if the
Board finds that the amendments did not confer on unclassified
employees a general right to grieve job competitions, where
the allegation is that the grievor had been sUbjected to
conduct of the employer which was tainted by bad faith, it is
./
within the jurisdic;::tion of this Board to entertain a
grievance. The union claims that 'in this case it intends to
establish bad faith on the part of the employer by leading
evidence that one of the incumbents received assistance and
preferential treatment duripg the competition process, and
that the selection panel deliberately placed obstacles against
the chances of the grievor's success.
I
\
~
4
Counsel for the employer takes the position that the
amendments torthe collective agreement only had the effect of
giving unclassified employees very specific and limited
"
rights, which did not include the right to grieve job
competitions I On the union's alternate ,argument, the
!
employer's position essentially is that unclassif iEad employees
have no rights under the colle~tive agreement that could have
been affected by any bad faith on the part of the employer,
and that in the circumstances the Board has no jurisdiction to
entertain a grievance
-
\-
The Board now turns to a review of the two alternate
ar~uments advanced by the union.
(
Do the amendments to the collective aqreement confer upon
unclassified employees a qeneral riqht to qrieve iob
competitions.
The collective agreement between the parties for the
perioQ January 1, 1989 to December 31, 1991 (the "previous
agreement" ) contained the following provisions. :
3 16 The following Articles' shall also apply
to unclassified staff other than seasonal
employees:
Articles A, 1, 9, 11, 12, 15, 16, 17, 21, I I
22, 23, 25, 27, 32, 36 and 85.
'-
I
\
--.
5
ARTICLE 4 - POSTING AND FILLING OF
VACANCIES OR NEW POS~TIONS
4 1 When a vacancy occurs in the Classified
service for a bargaining unit position or
a new classified position is created in
the bargaining unit, it shall be (
advertised for at leasit ten ('10) working { \
days prior to the established closing
date when advertised within a ministry,
or it shall be advertised for at least
fifteen (15) working days prior to the
established closing daite when advertised
service-wide. All applications will be
acknowledged. Where practicable, notice
of vacancies shall be posted on bulletin -
boards
4.2 The notice of vacancy shall state, where
applicable, the natu~e and title of
position, salary, qualifications
required, the hours-of-work schedule as
setout in Article 7 (hours of Work), and
the area in which the position exists
4 3 In filing a vacancy, the Employer shall
give pri~ary consideration to I
q~alifications and ability to perform the I
required duties. Where qualifications
and ability are rel~tively equal, length
of continuous service shall be
consideration.
4.4 An applicant who is invited to attend an
interview within the civil service shall
be granted time off with no loss of pay
and with no loss of credits to attend the
interview, provided that the time off
( doe~. not unduly interfere with operating
requ~re~ents.
4 5 Relocation expenses shall be paid in
accordance with the provisions of the
Employer's policy.
'\
It is noteworthy that there is no reference in article
3.16 to article 4. Therefore the Board has consistently held
'-
!
I
I
! ~
-~
\..
6
under this collective agreement that article 4 has no
application to unclassified employees and that they have no
right to grieve job co~petitions
\
The collective agreement. which governs this grievance has
a term of January 1, 1992 to December 31, 1993 The
corresponding provisions in this agreement provide as follows:
3.16 The following Articles shall also apply
to unclassified staff other than seasonal
employees: Articles A, 1,4 lo, 4.4,6,
7 . 7, 9, 11, 12, 15, 16, 17, 18.5, 21, 22,
23, 25, 27; 29, 32, 33, 34, 35, 36 and
86.
~ -
ARTICLE 4 - POSTING AND FILLING OF
VACANCIES OR NEW POSITIONS
4.1 When a vacancy occurs in the Classified
Service for a bargaining unit position or
a new classified position is created in
the bargaining uni t" it shall be
advertised for at least ten (10) working
days prior to the established closing
\ date when advertised within a ministry,
or it shall be advertised for at least
fifteen (15) working days prior to the
established closing date when advertised
service-wide. All applications will be
acknowledg~d. Where practicable, notice
of vacancies shall be posted on bulletin
boards.
4.2 The notice of vacancy shall state, where
applicable; the nature \and title of
position,. salary, qualifications
i required, the hours-of-work schedule as
set out in Article 7 (Hours of Work), and
the area in which the position exists.
\
4.3.1 In filling a vacancy, the Employer shall
give primary consideration to
qualifications and ability to perform the ~"
required duties Where qualifications
" n ~ ~--_._--
-,
. (
7
____ and ability are relatively equal,
seniority shall be the deciding factor
r
4.3 2 Notwithstanding subsection 43 1, the
Union and the Employer may agree that
employment equity shall be the overriding
consideration. Such agreements will be \
mad~ in advance of job postings and may
be based on individual positions, groups
of positions, classifications or other
groupings of jobs as appropriate.
" \
4 3 3 Agreements under subsection 4 3 2 will be \
based on an analysis of workforce data
and employment systems indicating that a
designated group is o~ groups are unqer
represented.
I
4.3 4 It is recognized that in accordance with
section 14 of the ontario Human Rights
Code, the Employer's employment equi ty
program shalt not be considered a
contravention of t~is article. 1
4.4 An applicant who is invited to attend an
interview within the civil service shall
be granted time off with no loss of pay
and with no loss of credits to attend the
interview,J provided that the time off
-does not unduly interfere with operating
requirements.
4 5 Relocation expenses shall be paid in
accordance with the provisions of the
Employer's policy.
4-. 6. 1 With the agreement of the Union, the
employee and the Employer, an employee
may be assigned to a vacancy where:
(a) the vacant position is identical to
\ the position occupied by the
\
, employee, and
(b) the vacant position is in the same
ministry as the position occupied by
the employee.
and the provisions of sections 4.1, 4 2,
4~3, 4 4 and 4 5 shall not apply.
)
~
~
-.
8
4.6 2 The assignment of an employee to a
vacancy in accordance with Articles 5,
24, 30, 42, 50 and 51 shall have priority
over an assignment under section 4 6 1
4.7 Where the duties of a position are
modified to accommodate an employee with
, a disabilit~, the position shall not be
\ considered a vacancy for the purposesof\
this article
-
Thus, it is clear that unlike in the previous agreement,
"- article 3.16 of the current agreement does make reference Ito
article 4. To be specific, it provides that, articles 4 1 and
(
4.4, inter alia apply to unclassified staff. \
A comparison of article 4 ~n the previous and current
L
collective agreements indicates that articles 4 1, 4 2, 4.4
and 4 5 remain unchanged~ The previous article 4.3 has been
renumbered ~s 4.3 1 but the contents are identical. All of
the other subsections of article 4 in the current agreement
are new. )
Counsel for the union recognizes that while article 3 16
of the current agreement makes, reference to articles 4.1 and
4.4, there is no reference to article 4' 3.1 which sets out the
criteria to be used by the employer in filling a vacancy
However, counsel points out that article 4 3.1 dQes not limit r
itself to filling vacancies through applications by classified
employees. It refers to filling vacan~ies generally. Article
4 3.1 is referrable to the position to be filled and not to
- ~
- f
.
9 ,~
-
-- the employment status of the applica~t Counsel submits that
article 4 1 which now applies to unclassified employees,
)
begins with the words "Wh,en a vacancy occurs" It is his
position therefore that once that provision is triggered by
\ j
the occurrence of a vacancy, the obligations under article
4.3.1 must also be complied with
Counsel submits that, unless the Board takes a broad view
of the amendment to article 3.16, the extension of articles
4.1 and 4.4 to unclassified employees will have little impact
on their rights with regard to job postings. The only changes
-
will be tpat under article 4.1 the unclassified employees will
l
be, entitled to the benefit of jOb advertisements and they will
have a right to an acknowledgement of their job applications.
Under article 4.4 they will be entitled to attend job
interviews without loss of payor credits. Counsel contends
that these rights will mean very little if the employer is not
\
also required to consider a'pplications of unclassified
employees on the basis of the criteria set out in article
4.3.1
! In response to a question from t.he vice-chairperson, union
counsel agreed that if his argument is ^correct, then there
would be no distinction between the rights of classified and
unclassified employees r~lating to job competitions. That
being so, in our view it defies any logic as to why the
I
.\
."
I I
~
10
parties would limit the extension of unclassified employee
rights specifically to article 4.1 and 4.4, rather than either
listing article 4 as a whole in article 3 16 or making
specific reference to article 4.3.1.
i
Union counsel is correct that the extension of article 4,.1
)
and 4 4 to unclassified employees confers only very limited
rights on them He may also be justified in his view that
those rights are of little value to employees if the employer
is not bound to comply with article 4. 3 . However, that cannot
and does not impact on the Board's jurisdiction Article 4
consists of eleven separate subsections. The parties have
deliberately picked two of those subsections and provided that
I
\
those shall apply to unclassified staff. The well established
cannon of interpretation stated in the latin maxim "Expressio
unius exclusio alterius", requires an interpretation
recognizing that, by expresslY stating t,hat two of the
subsections of article 4 apply to unclassified staff, the
par,ties intended to exclude the application of all of the
1
other subsections of article 4. There is no other plausible
(
explanation for the reference in articl~ 3 16 to articles 4.1
and 4.4 only. This is to be contrasted with how the parties
dealt with some of the other articles of the coll~ctive
agreement. When they intended all of the sub-sections of an
"-
article to apply to unclassified employees, they referred to
'\
I
\
I
I
I .,-.:
11
the article number generally. See for example the reference
,
in artible 3 16 to articles 11 and 17
also disagree that the " qf
We occurrence a vacancy as
envisaged in article 4 1 triggers any obligations toward~
unclassified employees other than those mentioned in article
4.1 itself, ie, those relating to advertisements and
acknowledging of applications
It follows therefore that no, part of article 4 other than .',
I
articles 4.1 and 4 4 I rights unclassified
confer any on
employees Therefore the union's first argument based on the
;
amendment to the collective agreement fails In other words,
the amendments to the collective agreement do not confer on
unclassified employees a general right to grieve job
competitions.
Does the Board have iurisdiction to entertain a qrievance
'\
where an unclassified em~loyee alleqes bad faith: on, the part
of the emplover in conductinq a iob competition.
The union submits in the alternative that even if
unclassified employees have no general right to grieve job
competitions under the collective agreement (and we have found
that to be the case), the board has the jurisd:lction to review
the job competition process to determine wh~ther the employer
~
~'i.
12
has acted in bad faith. Counsel relied on Re Bousquet, 541/90
(Gorsky) and Re Lumlev, 1257/91 (Gorsky). Counsel submits
that the Board h~s held that even where the employer exercises
an exclusive management right under section 18(1) of the Crown
Employees Collective Barqaininq Act, it has jurisdiction to
review the employer conduct for bad faith.
,
In counsel's view, for two reasons, the argument in this
particular case is much stronger in favour of the Board j,
assuming jurisdic~ion to review the employer conduct for bad
faith Firstly, a jOb competition is the process for
determining promotions. Unlike exclusive management rights
under section 18(1) which are non-bargainable, promo~ions can
properly be th~ subject of collective bargaining He points
out that in section 7 of the Act "promotions" are expressly
listed as a bargainable subject matter. He submits that if
v
the Board has jurisdiction to review employer conduct for bad /
faith in the exercise of' non-bargainable exclu~ive management \
rights, there should be no doubt that it also has at least a
siIrillar jurisdiction where the discretion exercised by the
employer relate to a bargainable subject matter
_ l
"-
Secondly, union counsel points out that there can be no
\
doubt that unclassified employees have at least some rights
relating to job competitions, under articles 4.1 and 4.4. By
extending these rights to unclassified employees, the parties
~
.
I
\
13
have envisaged that ~nclassified employees will have a fair
( opportunity to participate in job competitions These rights
will be nullif ied and rendered meaningless if the employer
0,
acts in bad faith towards unclassified employees who take that
opportunity to participate in job competitions Counsel
submits that the parties( would not have intended to grant
unclassified employees the right to participate in the job
competition process and at the same time intended to licence
the employer to act in bad faith with impunity.
Couns~l for the employer distinguishes the Bousauet and
Lumley decisions on the grounds that neither of those ca,ses
dealt with job competition grievances nor were the grievors
unclassified employees. Counsel submits that in this case
even if the employer had acted in bad faith, that could not
have affected any enforceable right of any unclassified
employee under any provision of the collective agreement or
any other 'law such as the onta~io Human Rights Code. Counsel
points to the jurisprudence of the Board to t~e effect that it
has no jurisdiction to entertain a job competition grievance
filed by an unclassified employee, and submits that the
amendment to the collective agreement has not af~ected that
position in any way.
--
In reply, union counsel points out that the Board's
decisions relied upon by the employer only stand for the
r
.
,J
I
--
) 14
proposition that unclassified employees have no general right
\
I
under the collective agreement to grieve the results of job
competitions In none of those cases was the Board called
upon to deal with its jurisdiction where the allegation was
that the employer acted in bad faith. Counsel states that
there are no decisions of the Board in which the Board has
been called upon to deal with that issue.
i
We take no issue with/the previous decisions of the Bo~~d
which hold that unclassified employees have no right under the
collective agreement to grieve the results of a job
competition on 'the grounds that 'article 4.3 1 has been
,
contravened. Indeed, we have con~luded in this award that the
same situation prevails despite the amendment to article 3.16
\
However, we have not be~n referred to any prior decision 9f
the Board which has dealt with the issue which has squarely
been raised before us, namely, does the Board have
jurisdiction to entertain a grievance where an unclassified
employee alleges bad fai th on the part of the employer in
conducting a job competition.
1
~
The Board in Re Bousauet dealt with a number-of grievances
and several preliminary issues relating to them. One of the
grievances related to an allegation that the grievor had been
J
denied a training and development opportunity because he was
a Francophone. One of the objections to the Board's
7
'}
~ i
r 15
jurisdiction raised by the employer was on the grounds that
"the provisions of sectiqn 18 (1) of the Act/ vested in the
Emplbyer an unqualified' right to decide which employe~s
I received training and development, as that exclusive function
could in rio way be 'cut down by any provi:sion in the coliective
agreement, and there was no statutory provision which had to
be accommodated' by it Th~t is, the parties could not
\
negotiate with respect to the subject; in this case, training
and development. If they did, taeir agreement could have no ~
effect"
The Board in Re Bousauet did an extensive review of the
jurisprudence, including the judgements in Re Metropol i tan.
Toronto Board of Commissioners of Police and Metropolitan
Toronto Police Association et aI, (1981) 33 O.R. (2d) 476
(C.A.) , Re Council of printina Industries of Canada and
Toronto printina Pressmen arid Assistants' Union No. 10 et ~al,
(1983) , 42 O.R. (2d) 404 (C A.) and Re C.U.P.E. Local 43 and
the,MuniciDalitv of MetroDolitan Toronto, (1990), 74 O.R. 239
(C .A. )
We will not review the discussion of the appl~cable 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 tae
! -
~
.
*'-..5
~
16 l
purported exercise o.f. an exclusive management function with
respect to train~l1g and. development" The Board concluded
that in exercising its exclusive management function relating
to training and development, the employer has a duty to act in
good- faithLThe 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 remover-
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.
Re)Lu~ley involved a denial of an interview with respect
to a denial of a management developmental assignment which the
i
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 I 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
management rights under section 18.
/
,
"
.
~~
""
17
It is signif icant to note that in Re Lumley, the Board did
not decide whether a grievance can be founded ort, a vi6'1ation
of article A.1 Rather the Board at pp. 50-5i stated: ~
Even if article A.1 does not specifically afford
an employee the right to file a g~ievance basegon its
having been violated, in considering whether an
employer hap acted in good faith, in a claim based on
discrimination in the carrying out of a management
I 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 Riqhts Code.
At pp 53-54 the Board concluded:
Because of our limited jurisdict,ion 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 Bousquet, however
broad are, management's rights with respect to carrying
out the exclusive functions assigned to it under the
Act, it cannot actin bad faith. Merely becau~e' the
training position was a management one, does not alter
the'fact that the Employer, in the case before us, was
determining a matter encompassecluncler s. 18 (1) (b)
"training and development". The function was being
-, exercised with respect to):)argaining unit personnel
under management's r,ights pursuant to's. 18 (1) (b) ,of
the Act. Tc;> allow the Employer to decide Which
bargaining unit employees will receive training and
development opportunities while engaging in
discriminatory practices based on the race of
employees would permit the Employer to carry out its
rights in bad faith. It could never have been the
intention to immunize management from chal-Ienges 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 Riqhts 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
\
- - - - -~- - --
!~
~
18
( In our- view, the fact that the Bousquet ~nd Lumley
decisions did not involve grievances filed by unclassified
employees and that they were not job competition grievances is (
not significant. The principles discussed in those decisions
'"
were not predicated upon or limited to those facts As long
as a particular grievor's circumstances come within the
priJnciples enunciated, they would have application to all
,
employees covered' by the collective agreement.
The parties are in dispute as to whether the mere fact
" ;
that the employer has acted in bad faith by itself will confer
jurisdiction on the Board or whether before the Board acquires
jurisdiction- it must be satisfied that such bad faith results
in the denial or compromising of some enforceable right the
grievor has under the collective agreement or some other
statutory law such as the Ontario Human Riahts Code. In our
view, however, for purposes of determining th~ ~xtent of the
Board's jurisdiction in this case, that issue need not be
deterltlined. '"
In Re B6usquet at p. 33 the Board quoted with approval the
following passage from the jUdgement of the Court of App~al in
Re Metro Toronto Police (supra) at p. 256:
In other words, it is not patently unreasonable
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.
-.
~ r
. I
~~
19
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 eX1stence of a provision in the "
collective agreement which would either be negated or
unduly limited by particular application of such
right. J
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 act~ons 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 Actin a waywh~ch would amount to a
deliberate ~ttempt 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 atteJtlpt to
undermine the employee's opportunities for promotion,
the decision will not be interfered with.
(
In the case before us, the ,purported exercise of employer
discretion related to a promoticm opportunity. Unlike in Re
Bousauet and Re ~umlev, the subject of promotion is not an
_ exclusive management function under section 18(1) of the Act
On the contrary it is explicitly stated in section 7 of the
Act to be a proper subject of collective bargaining. In the
,
collective agreement, while unclas~ified employees were not
,.
..
,
"f
~
20
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 ~rticle 4. To facilitate this right to
participa,tion, the parties have extended article 4.~ to
unclassified employees, giving them the benefit of the jOb
I
advertisements and a right tQ have their applications
,
acknowledged. To further accommodate unclassified employee~' ,
~,:'
participation in ~ob competitions, the parties have, by
\
r 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
I . .
w~thout loss of pay or cred~ts
) considering the deliberate steps taken by the parties to
4
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
I
It is not reasonable to cQnclude that the parties would go to
, 1
the trouble of amending the collective agreement to
facilitate, and indeed encourage (by providing for paid time
off in article 14 4), participation by unclassified employees
in job~ompetitions and at the same time permit the employer
I
j (
,
I
\.
~
~
,
I .
~~ i
I - 21
J. i
to render those provisions meaningless by acting in bad faith. I
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 I
parties would have envisaged at the very least that thqse I
unclassified employees who do participate will have their
applications considered by the employer in good faith
/
The Board in Re Bousquet has extensively reviewed the
meaning of "bad faith" -and the test to be 'used- in determining
\
I
whether certain conduct could be said to have been .motivated
\ by bad faith At pp. 63-64 the Board observed
All of the cases emphasize that in cases
involving' the exercise of managerial discretion, the
Board will hesitate to substitute its view for that- of
the employer as long as certain minimum tests are met .
These include the requirement that the decision be a
genuine one related to the management of the
undertaking and not, a disguised means of achieving
impermissible ends based on discrimination or other !
grounds unrelated to the making of genuine management
decisions. The facts considered in making the
decision must be relevant to legitimate government
purposes Also, in making its decision management,
provided it has acted in good faith, as above
described, need not be correct
In the circumstances, we find that tpis Board has
jurisdiction to review the employer's conduct in carrying out
the jOl:> competition in order to determine whether there is
1
\ oJ; I
'-1
l;
r:
.,
~
22
merit in the griever's allegation that the employer acted in
bad faith towards her I
'~
In summary then, the Board finds:
;
(1) that the amendments to the collective agreement do
not have the eff~ct of permitting unclassified employees to
grieve under article 4.3 L The Board has no jurisd~ction to
entertain this grievance under that provision.
(2) that the Board has jurisdiction to entertain the
grievance alleging that the grievor was treated in bad fa~th -
during the course of t~e job competition, since such bad faith
conduct~. for all practical purposes negates the grievor's
rights under articles 4.1 and 4 4. ,
( If either party wishes to proceed with this grievance, the
Registrar may be contacted for scheduling a hearing. As,
agreed upon between the parties the Board remains seized to
deal with any remaining issues arising out of t~is grievance.
( /'
0"
.,
,~
23
Dated this 15th day of December 1993 at Hamilton, Ontario
~~'r
"./' .<".- .
. '-
N. DJ.ssanayake
Vice-Chairperson
~ ~
~
?il ~ CJ7/~
M. O'Toole
Member
i i i
\ ,Ii \
\ '
\
\
--~--