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HomeMy WebLinkAbout2000-1455.Young et al.02-07-10 Decision ~M~ om~o EA1PLOYES DE LA COURONNE _Wi iii~~~i~T DE L "ONTARIO COMMISSION DE REGLEMENT "IIIl__1I'" BOARD DES GRIEFS Ontario 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE. (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILE/TELECOPIE. (416) 326-1396 GSB#1455/00 1456/00 UNION#0IB024 01B025 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Young et allGroup Gnevance) Grievor -and- The Crown In RIght of Ontano (Mimstry of the Attorney General) Employer BEFORE RandI H. Abramsky Vice-Chair FOR THE UNION John BrewIn Counsel Ryder Wnght Boyle & Doyle Bamsters & SOlICItorS FOR THE EMPLOYER MelIssa Nixon Semor Counsel Legal ServIces Branch Management Board Secretanat HEARING May 22 and May 23 2002 2 AWARD In May 2000 the Mimstry of the Attorney General dlstnbuted a "call for Interest" memo to "[a]ll full-tIme staff, HamIlton Court" regardIng a traInIng opportumty for a back-up Tnal Co-ordInator and back-up Judges' Secretary posItIOns The "call for Interest" was lImIted to full-tIme classIfied employees A group of unclassIfied employees at the HamIlton Court gneved "that management IS not allowIng the unclassIfied employees the nght to equally apply and temporanly fill Job postIng for backfill to the Tnal Co-ordInator and Judges Secretary as per ArtIcles 6 & 8 of the collectIve agreement and the Human RIghts Code" At the heanng, the gnevance was lImIted to the backfillIng the Tnal Co-ordInator's posItIOn. Facts In 1995 the posItIOn of Tnal Co-ordInator was created for the HamIlton Courts It IS a classIfied, OAG-I0 posItIOn, and from 1995 to mld-2000 It was held by Ms LorraIne Baynton. The Tnal Co-ordInator posItIOn IS a very Important posItIOn WIthIn the courts The Incumbent IS responsIble for coordInatIng and schedulIng pre-tnals and tnals In lIght of the Importance of the Tnal CoordInator posItIOn, whenever the Incumbent IS III or on vacatIOn, another employee must be brought In to perform the Job or backfill the posItIOn From 1995 to mld-2000 when Ms Baynton was absent, she was backfilled eIther by Mary MatJanec a regular part-tIme classIfied employee, Lon Peters, another classIfied employee, or MartIn TosOIan, an unclassIfied court clerk. From tIme to tIme there may have been other employees, classIfied and unclassIfied, who backfilled 3 the posItIOn. AccordIng to Ms Betty MacDonald, SupervIsor of Court Support Personnel from January to June 2000 she would replace Ms Baynton wIth Mary MatJanec and when she was not avaIlable, Mr Tosman would be selected. AccordIng to Ms MacDonald, In early 2000 she receIved a number of complaInts from classIfied employees that the backfill opportumtIes for the Tnal Co-ordInator posItIOn were lImIted to so few people In addItIOn, accordIng to Ms Cathy Hiuser Manager for Court OperatIOns In HamIlton, In early 2000 concerns were raised by the JudIcIary about the need for consIstency In the backfillIng of the Tnal Co-ordInator and Judges' Secretary posItIOns These concerns led to dIscussIOns between Ms MacDonald and Ms Hiuser along wIth Mr BIll Yeadon, In Human Resources Mr Yeadon came up wIth the Idea of the "call for Interest" to determIne who mIght be Interested In servIng as the backup Tnal Co-ordInator and backup Judges' Secretary and to reVIew theIr qualIficatIOns Ms Hiuser decIded to lImIt the "call for Interest" to classIfied employees Ms Hiuser testIfied that her decIsIOn to restnct the "call for Interest" to classIfied employees was based "purely for budget" reasons As Manager of Court OperatIOns for HamIlton she IS dIrectly responsIble for managIng and balancIng the court operatIOns budget for the provIncIal courts In HamIlton. She explaIned that the Courts receIve an annual allocatIOn based, In large part, on a fundIng formula used throughout the proVInce Each May she submIts a fundIng request based on the pnor year's court hours for the unclassIfied court support personnel (courtroom clerks, court reporters, and regIstrars), 4 "weIghted actIvIty" work load statIstIcs for the classIfied staff, plus operatIOnal expenses such as supplIes, repairs, professIOnal fees, wItness fees and expenses Ms Hiuser testIfied that the fundmg allocatIOn for the HamIlton Courts for the past fiscal year 2001 was just over $5 mIllIon dollars In 1998 It was $6 1 mIllIon dollars In Ms Hiuser's VIew there have been sIgmficant budgetary pressures on the courts over the past five to seven years and she IS always trymg to find efficIencIes She also testIfied that the budgetary pressures m 2000 were especIally acute m early 2000 because wIth the transfer of the ProvmcIal Offenses Act cases the budget of the HamIlton Court would be reduced by close to $500 000 dollars, effectIve July 1 2000 In addItIOn, case loads m cnmmal, cIvIl, famIly and small claims were on the nse even though the budget for the year was based on the pnor year's actIvIty Ms Hiuser also testIfied that requestmg addItIOnal fundmg was not possIble and that any shortfall m the budget would result m the surplusmg of staff, whIch, m her VIew was not feasIble In her opmIOn, the HamIlton courts were already understaffed gIven the volume of work. Ms Hiuser explamed that under the fundmg formula, fundmg for unclassIfied court support employees (courtroom clerks, court reporters, and regIstrars) IS based on the tIme they spend m court. For each one hour of court room tIme they work, the Court IS funded for 1 3 hours, whIch mcludes set up and take down tIme breaks and so forth. Accordmgly If an unclassIfied court support employee IS backfillIng for a Tnal Co- ordmator theIr tIme IS not reImbursed under the fundmg formula. They would, of course be paid for theIr work, but the HamIlton Court would not receIve fundmg for those hours 5 SInce the work IS not consIdered tIme spent In court. TheIr wages for the day would be, In effect, an unreImbursed expense In contrast, the salary for a classIfied employee IS funded for the year regardless of whether they are performIng theIr own Job or backfillIng for another classIfied employee Consequently backfillIng the Tnal Co- ordInator's posItIOn WIth a classIfied employee IS revenue neutral to the Court, whereas backfillIng It WIth an unclassIfied employee IS a revenue loss to the Court. The testImony ofMs Hiuser was confirmed by Ms MacDonald. Ms MacDonald testIfied that the decIsIOn to restnct the "call for Interest" to classIfied employees was "totally about fundIng and budget." She also testIfied that the same practIce - to lImIt backfillIng to classIfied employees - was done In the Cayuga, SImcoe and Brantford courts The "call for Interest" memo was sent to all classIfied staff In the HamIlton Courts In May 2000 It was posted for a tIme, although neIther Ms Hiuser nor Ms MacDonald knew who had posted It. In theIr VIew - whIch was not dIsputed by the Umon - the "call for Interest" was not a "postIng" for a "vacancy" under ArtIcle 6 1 of the collectIve agreement. Instead, It was a "traInIng opportumty" a "developmental opportumty" to serve as backup Tnal Co-ordInator and Judges' Secretary on an as-needed basIs The reqUIrements of the posItIOns were lIsted In the memo and classIfied staff were "InvIted to submIt In wntIng an IndIcatIOn of your Interest settIng out how your qualIficatIOns match the above-noted reqUIrements and IndIcatIng whIch posItIOn you are Interested In." 6 A group of the unclassIfied staff was qUIte upset at bemg excluded from the "call for mterest." In a memo dated May 18 2000 addressed to Betty MacDonald, the group protested theIr exclusIOn as, among other thmgs, "blatant dIscnmmatIOn towards all unclassIfied staff' and "favonng a certam group at the expense of the others" It urged management to "re-post thIS Job Immediately enablIng all mterested employees the opportumty to apply" The memo was copIed to Ms Hiuser Manager Court OperatIOns, Joanne Spnet, DIrector Court OperatIOns, Karen PashleIgh, Actmg DIrector Human Resources and PaulIne Tappmg, MERC Ms MacDonald testIfied that she dId not receIve a copy of thIS memo but learned about It from Ms Hiuser They decIded to meet wIth the 18 employees who sIgned the memo to address theIr concerns The meetmg was held on May 26 2000 The meetmg was attended by Ms MacDonald, Ms Hiuser and a number of the employees who had expressed concerns At the meetmg, management explamed that the decIsIOn to restnct the "call for mterest" to classIfied employees was based on budget concerns, and an explanatIOn of how the courts were funded for unclassIfied court support personnel (i e that the Court receIved 1 3 salary hours for every 1 hour of actual court tIme but no salary dollars when they backfilled a posItIOn) was provIded. At the meetmg, Ms MacDonald also dIscussed potentIal Job shadowmg wIth the Tnal Co-ordmator and Judges' Secretary as "some remedy to allow them to get some 7 traInIng." She acknowledged, on cross-eXamInatIOn, that the traInIng Involved for the successful person selected to backfill as a result of the "call for Interest" would be more Involved than would occur In a Job shadowIng exerCIse She also acknowledged that Job shadowIng was not a "traInIng opportumty as such" but was more In the nature of a look at the J ob to see what the Incumbent does and If they mIght be Interested In It. The Issue of traInIng and backfillIng for the Tnal Co-ordInator posItIOn was an Important one to staff In early to mId-2000 because the Incumbent In the posItIOn, LorraIne Baynton, was expected to retIre soon. As a result, obtaInIng traInIng and expenence In the Job would be advantageous In a Job competItIOn for that posItIOn. As one of the gnevors, Ms ElaIne Young, testIfied, backfillIng would have been an "excellent opportumty" to learn about the Job and enhance her Job qualIficatIOns and skIlls for the posItIOn. Ms MacDonald also acknowledged that havIng the opportumty to traIn In the Job and perform It on a backfill basIs would provIde an advantage to an applIcant when the postIng arose The Umon Introduced a copy of a Job postIng for two back-up Tnal Schedulers, on an on-call, as- reqUIred basIs, for the Brampton courts The competItIOn was "restncted" meamng It was open to all unclassIfied and classIfied employees In the Ontano publIc servIce, provIded they lIved wIthIn a 40 km dIstance The postIng states that the posItIOn of Tnal Scheduler "assIst[S] the Tnal Co-ordInator In the preparatIOn of dally weekly & monthly court schedules" It IS an OAG-8 posItIOn. In the VIew of 8 gnevor Elame Young, thIS postmg was a "sImIlar posItIOn" m terms of dutIes, whIch was made avaIlable to all staff Ms Hiuser testIfied, based m part on a conversatIOn she had wIth the Manager of Court OperatIOns m Brampton and her personal knowledge of the courts, that the posItIOn of Tnal Scheduler IS dIfferent than Tnal Co-ordmator and that they assIst the Tnal Co- ordmator She testIfied that Brampton IS a sIgmficantly larger court than HamIlton. It receIves approxImately $3 5 mIllIon dollars more m ItS operatIOnal budget than HamIlton and IS a "backlog court" wIth a hIgh percentage of cases m Jeopardy of dIsmIssal for delay and mto whIch addItIOnal resources have been allocated to address that backlog. The result of the "call for mterest" was that one employee, a classIfied employee, was selected to serve as backup for the Tnal Co-ordmator The record does not dIsclose how many employees applIed. At least two of the gnevors expressed theIr mterest but were not consIdered. Positions of the Parties A. The Union The Umon asserts that the Mimstry's decIsIOn to restnct the "call for mterest" to classIfied employees Improperly mfnnged and mterfered wIth the gnevors' nght to apply for and be consIdered for posted vacanCIes under ArtIcle 6 1 of the collectIve agreement. The Umon submIts that whIle management has dIscretIOn to determme who receIves 9 traInIng and developmental opportumtIes, It must exerCIse that dIscretIOn In good faith where employee nghts may be undermIned. The Umon acknowledges that there IS no express provIsIOn In the collectIve agreement whIch entItles employees, classIfied and unclassIfied, to receIve access to traInIng and developmental opportumtIes It also acknowledges that decIsIOns regardIng who should have these traInIng opportumtIes are a decIsIOn for management. But It asserts that management's dIscretIOn must be exercIsed In good faith, CItIng OPSEU (Bousquet) andMinistlY of Natural Resources, GSB No 541/90 et al (Gorsky 1990) The Umon asserts that under the Bousquet test, management's decIsIOn was "a dIsgUIsed means of aChIeVIng ImpermISSIble ends" - specIfically to undermIne the unclassIfied employees' abIlIty and nght to compete for the Tnal Co-ordInator posItIOn. In thIS regard, the Umon also relIes on OPSEU (McIntosh) and Ministry of Government Services GSB No 3027/92 (DIssanayake, 1993) for the contentIOn that unclassIfied employees have a nght to partIcIpate In Job competItIOns under artIcle 6 and that the partIes Intended that nght to be a meamngful nght. It submIts that the nght to partIcIpate In Job competItIOns cannot be undermIned by the bad faith actIOns of the Employer to exclude unclassIfied employees from traInIng and developmental opportumtIes The Umon asserts that In thIS case, the Mimstry's decIsIOn to restnct the "call for Interest" to classIfied employees was made In bad faith. It asserts that It was made wIth full knowledge of the ImpendIng retIrement of Ms Baynton, the Tnal Co-ordInator and 10 the vacancy that would result. It submIts that they devIsed the "call for mterest" to expand the opportumtIes for classIfied employees to obtam trammg and backfillIng m the Tnal Co-ordmator posItIOn whIle, at the same tIme, restnctmg the opportumtIes of the unclassIfied staff The Umon pomts out that the Employer knew at the tIme, that ItS decISIOn would depnve the unclassIfied employees of the opportumty to be tramed m and backfill for the Tnal Coordmator posItIOn, to theIr dIsadvantage It submIts that thIS was a conscIOUS decIsIOn wIth foreseeable consequences, and that the Employer must be deemed to have mtended that result. The Employer submIts that to the extent that thIS Improper motIvatIOn played any part m ItS decISIOn to restnct the "call for mterest" the decIsIOn should be mvalIdated. The Umon also questIOns the Employer's claim that the decIsIOn was based on the budget and fundmg formula. It argues that the same budgetmg process had been followed for a number of years and yet unclassIfied employees had backfilled for the posItIOn. It submIts that nothmg had changed at the relevant tIme to reqUIre lImItmg the "call for mterest" to classIfied employees Instead, It submIts that the decIsIOn was made to favour one group of employees over another In further support of ItS contentIOns, the Umon cItes to OPSEU (Union Grievance) and Management Board Secretariat, GSB No 0405/99 (Abramsky 2001) OPSEU (Jafri) and Ministry of Correctional Services GSB No 933/91 (DIssanayake, 11 1995) OPSEU (Knapp) and Ministry of Finance GSB No 2720/96 (Abramsky 2000) and Re NGF Canada Ltd and Union of Needle trades Industrial and Textile Employees Local 1305 (1997) 66 L.A. C (4th) 408 (Ray) AccordIngly the Umon requests that the gnevance be allowed, that the decIsIOn to restnct the "call for Interest" be InvalIdated and that the Mimstry be reqUIred to open the opportumty to be selected to backfill for the Tnal Co-ordInator posItIOn to all employees B. The Employer The Employer contends that because the decIsIOn to restnct the "call for Interest" to classIfied employees falls wIthIn the exclusIve exercIse of ItS management nghts, the Board's JunsdIctIOn IS lImIted to determInIng whether management exercIsed ItS dIscretIOn In bad faith. The Employer submIts that the onus on thIS Issue rests WIth the Umon and that there IS no eVIdence to establIsh bad faith. On the contrary It contends that management restncted the "call for Interest" to classIfied employees based solely on financIal and budgetary reasons whIch are bona fide, legItImate factors, and that the decIsIOn was ratIOnally related to the operatIOn of the enterpnse In ItS submIssIOns, the Employer relIes extensIvely on OPSEU (Bousquet) and MinistlY of Natural Resources, supra. It submIts that under the standards set forth In that case, management's decIsIOn to restnct the "call for Interest" was a genUIne decIsIOn related to the management of the enterpnse, and was not a dIsgUIsed means of aChIeVIng 12 an ImpermIssIble end. The Employer argues that the Umon presented no eVIdence that the decIsIOn was made for the Improper purpose of lImItIng or negatIng the traInIng opportumtIes of the unclassIfied employees The Employer notes that the reasons for ItS deCISIOn were commumcated to the employees at the tIme, and that alternatIves such as Job shadowIng were offered. In the Employer's VIew the Job postIngs for Tnal Schedulers out of the Brampton Court pertaIn to a dIfferent Job for a much larger court, and creates no Inference of bad faith on the part of the HamIlton Court. FInally In the Employer's submIssIOn, the remaInIng cases cIted by the Umon are eIther not relevant or are dIstIngUIshable on the facts C. Union Reply In reply the Umon asserts that even If management genuInely thought that restnctIng the "call for Interest" was a necessary financIal busIness decIsIOn, the budgetary process whIch reqUIred that result cannot be allowed to stand because It dISCnmInates agaInst unclassIfied employees The Umon submIts that the Employer must set up a fair budgetary process so that use of unclassIfied employees to backfill a classIfied posItIOn IS revenue- neutral The fact that It IS not revenue-neutral, It submIts, IS the "dIsgUIsed means to achIeve an ImpermIssible purpose" under Bousquet Decision 13 The Issues In thIS case are governed by the Board's decIsIOn In OPSEU (Bousquet) and Ministry of Natural Resources, supra Bousquet Involves, among other Issues, an allegatIOn that the Employer dIscnmInated agaInst the gnevor because he was a francophone when It demed hIm the opportumty to take a traInIng course The remedy sought was that the gnevor be allowed to take the course and be gIven developmental opportumtIes An obJectIOn to the Board's JunsdIctIOn was raised on the basIs that the Employer has unfettered dIscretIOn wIth respect to traInIng and development, and ItS decIsIOn therefore was not subJect to reVIew by the GSB The Umon argued that the Board dId have JunsdIctIOn to reVIew the decIsIOn of management where the nghts of employees found In the collectIve agreement may be adversely affected. SpecIfically the Umon that "when the Employer In bad faith, does not furnIsh an employee wIth traInIng and development opportumtIes, the employee's nghts under ArtIcle 4 3 are undermIned where the employee would be put at a dIsadvantage In applYIng for a posted posItIOn." (Bousquet at p 20) ArtIcle 4 3 provIded that "In fillIng a vacancy the Employer shall gIve pnmary consIderatIOn to qualIficatIOns and abIlIty to perform the reqUIred dutIes Where qualIficatIOns and abIlIty are relatIvely equal, length of contInUOUS servIce shall be a consIderatIOn." There IS sImIlar language contaIned In ArtIcle 6 3 1 of the collectIve agreement. The Board agreed, findIng that even though decIsIOns about traInIng and developmental opportumtIes were an exclusIve management nght, management's dIscretIOn must be exercIsed In good faith. The Board stated at pp 24-25 "WhIle 14 management may exerCIse the exclusIve nghts granted to It WIth a good deal of Impumty they must be exercIsed, at least, In good faith." The Board concluded, at pp 35-36 [I]f It could be demonstrated that the Employer had dIscnmInated agaInst the Gnevor In denYIng hIm traInIng and development opportumtIes wIth a VIew to undermInIng hIS advancement opportumtIes under artIcle 4 then ItS actIOns could not be said to have been carned out In good faith, for genUIne government purposes There IS nothIng In the collectIve agreement that reqUIres the Employer to consIder the advancement opportumtIes of employees However It cannot use ItS management nghts In a way whIch would amount to a delIberate attempt to Interfere wIth an employee's nght to compete for a promotIOn. The employer cannot delIberately tIlt the field wIth a VIew to prefernng one employee over another However where In good faith and for genUIne government purposes an employee IS demed a traInIng or development opportumty where the demal IS not founded on a delIberate attempt to undermIne the employee's opportumtIes for promotIOn, the decIsIOn wIll not be Interfered wIth. The Board In Bousquet extensIvely revIewed the Junsprudence regardIng what constItutes "good faith." The Board adopted, essentIally a two-part standard. The first reqUIrement IS an absence of bad faith, i e the decIsIOn must not be Improperly motIvated or malIcIOusly Intended. The second reqUIrement IS a reqUIrement of "reasonableness" - the "elements of reasonableness and a ratIOnal relatIOnshIp between the facts leadIng to the makIng of the decIsIOn and the decIsIOn Itself" (Bousquet at p 62) "Where there IS some eVIdence permIttIng an obJectIve assessment that the decIsIOn flowed logIcally from the facts, the Employer wIll have satIsfied the second aspect of the good faith test (reasonableness)" (Bousquet at p 63) The Board concluded, at p 63-64 All of the cases emphasIze that In cases InvolvIng the exerCIse of managenal dIscretIOn, the Board wIll hesItate to SubstItute ItS vIew for that of the employer as long as certaIn mImmum tests are met. These Include 15 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 dISCnmInatIOn 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 descnbed, need not be correct. The standards set forth In Bousquet are dIrectly applIcable to the facts In thIS case The gnevors, as unclassIfied employees, have nghts under artIcle 6 of the collectIve agreement. As held In OPSEU (McIntosh) and Ministry of Government Services, supra, the partIes provIded unclassIfied employees wIth the nght to partIcIpate In Job competItIOns conducted under artIcle 6 and the employer cannot render those nghts meamngless by actIng In bad faith. Further the Board In Bousquet concluded that "It can be seen that an employee who has been depnved of a traInIng or developmental opportumty may be placed at a dIsadvantage In a competItIOn held pursuant to art. 4 where an applIcant must have had certaIn traInIng or development In order to pass a threshold for consIderatIOn." (Bousquet at p 49) ThIS conclusIOn, In lIght of McIntosh also applIes to unclassIfied employees GIven theIr nght to partIcIpate In Job competItIOns, unclassIfied employees who have been depnved of a traInIng or developmental opportumty Just lIke sImIlarly sItuated classIfied employees, can be placed at a dIsadvantage In a competItIOn held pursuant to artIcle 6 As a result, management's decIsIOns In regard to traInIng and developmental opportumtIes must be made In good faith. As the Board held In Bousquet at p 61 "In order to be carned out In good faith, an employer must have had a genUIne IntentIOn to 16 carry out a legItImate government purpose whIch has the effect of denYIng an employee a traInIng of development opportumty " In thIS case there IS no questIOn that the decIsIOn to restnct the "call for Interest" to classIfied employees had the effect of denYIng unclassIfied employees In the HamIlton court a potentIal traInIng and developmental opportumty It IS easy to see why thIS decIsIOn so greatly angered the unclassIfied staff, partIcularly SInce an unclassIfied employee had often backfilled the Tnal CoordInator posItIOn In the past. Then, Just when the Incumbent In the posItIOn was expected to retIre, the unclassIfied employees were excluded from consIderatIOn for the traInIng and developmental opportumty of backfillIng for that posItIOn. But as stated In Bousquet "[t]here IS nothIng In the collectIve agreement that reqUIres the Employer to consIder the advancement opportumtIes of employees" An employee, or group of employees, may be depnved of a traInIng and developmental opportumty What IS prohibIted IS the mIsuse of the Employer's management nghts "In a way whIch would amount to a delIberate attempt to Interfere wIth an employee's nght to compete for a promotIOn." (Bousquet at p 36) But as the Board held at p 36 However where In good faith and for genUIne government purposes an employee IS demed a traInIng or development opportumty where the demalIs not founded on a deliberate attempt to undermIne the employee's opportumtIes for promotIOn, the decIsIOn wIll not be Interfered wIth. AccordIngly the Issue presented In thIS case IS whether the Mimstry's decIsIOn to restnct the "call for Interest" to classIfied employees was a delIberate attempt to 17 undermIne the classIfied employee's opportumtIes for promotIOn, or was made for bona fide, legItImate, genUIne government purposes On the balance of probabIlItIes, the eVIdence here establIshes that the decIsIOn to restnct the "call for Interest" to classIfied employees was based on financIal and budgetary concerns QUIte sImply USIng a classIfied employee to backfill the Tnal CoordInator posItIOn IS revenue neutral to the Mimstry whIle USIng an unclassIfied employee results In a revenue loss Under the fundIng formula used to support the courts, the HamIlton Court would not be compensated for the tIme an unclassIfied employee spends backfillIng the Tnal CoordInator posItIOn because It would not be consIdered "tIme In court." As a result, even though the HamIlton Court would have to pay the unclassIfied employee for hIS or her tIme whIle backfillIng, It would not be reImbursed for that tIme under the fundIng formula. In contrast, because a classIfied employee's tIme IS budgeted and paid for regardless of the task her or she performs, the HamIlton Court would be funded for the tIme a classIfied employee spends backfillIng for the Tnal CoordInator J ob In OPSEU (Mistry) and Ontario Human Rights Commission, supra at p 33 the Board held that management's faIlure to renew the gnevor's unclassIfied contract whIle reneWIng the contracts of other unclassIfied was motIvated by "busIness and financIal consIderatIOns whIch are legItImate managenal concerns" The CommIssIOn had a sIgmficant budget shortfall and restructunng had become necessary Further In contrast to the offices In whIch the two other employees' contracts were renewed, the office In 18 whIch the gnevor worked dId not need or reqUIre an addItIOnal employee The same pnncIple - that financIal consIderatIOns are a legItImate managenal concern - applIes here In thIS case, the eVIdence showed that the HamIlton Court was operatIng under sIgmficant financIal pressures, and had been for a number of years Although the financIal resources allocated to the Court were down, the workload In many areas was up RequestIng addItIOnal fundIng was not an avaIlable optIOn and the result of any budget shortfall would be layoffs EconomIes were beIng Implemented In all possible areas Further at the relevant tIme management was expectIng a further sIgmficant cut to ItS budget, effectIve July 1 2000 wIth the transfer of the ProvIncIal Offences Act. The Umon argues, however that thIS explanatIOn IS suspect because the same fundIng formula had eXIsted for years and yet unclassIfied, along wIth classIfied employees, had served as backfill for the Tnal CoordInator posItIOn. ThIS argument, whIle qUIte forceful, does not negate the Employer's explanatIOn. The testImony of Ms Hiuser was conVInCIng that the basIs of her decIsIOn was to save money The HamIlton Court had receIved a request from the JudIcIary that there was a need for consIstency In the backfillIng of the Tnal Co-ordInator posItIOn, and It had receIved complaInts from classIfied employees that the backfill opportumtIes were lImIted to a chosen few To address these Issues, management decIded to have a "call for Interest." It was Ms Hiuser's decIsIOn to restnct that "call for Interest" to classIfied staff only - and her eVIdence was uneqUIvocal that It was done for budgetary reasons - to save money 19 Her explanatIOn as to how restnctIng the "call for Interest" would save the Court money was straightforward and credIble It made sense from a budgetary perspectIve Her eVIdence about the fundIng process establIshed that there was "a ratIOnal relatIOnshIp between the facts leadIng to the makIng of the decIsIOn and the decIsIOn Itself" In other words, there was a ratIOnal relatIOnshIp between the facts leadIng to the makIng of the decIsIOn (the financIal pressures on the HamIlton Court and the fundIng formula used by the Mimstry) and the decIsIOn Itself (to restnct the "call for Interest" to classIfied employees) The decIsIOn flowed logIcally from the facts The eVIdence establIshes that the decIsIOn IS "a genuIne one related to the management of the undertakIng." AccordIngly I conclude that the "reasonableness" factor of the good faith test outlIned In Bousquet has been satIsfied. In thIS regard, It should be noted that test of reasonableness IS not one of correctness As noted In Bousquet the fact that an arbItratIOn board mIght have come to a dIfferent decIsIOn or assessment IS Irrelevant. The Board found that "the test of good faith, In thIS context IS not one of correctness" QuotIng the decIsIOn of Shffit, GSB No 410/88 (Watters) at p 6 the Board contInued at p 60 It IS easy to brand as "IrratIOnal" any thought process or decIsIOn wIth whIch one does not agree The Deputy Mimster must be free to make decIsIOns, wIthout beIng found to have acted IrratIOnally merely because a board of arbItratIOn mIght have come to a dIfferent decIsIOn. I also conclude on the balance of probabIlItIes, that the eVIdence does not establIsh that management acted In bad faith for an Improper reason. The eVIdence does 20 not establIsh that the decIsIOn was "a dIsgUIsed means of aChIeVIng ImpermISSIble ends based on dISCnmInatIOn or other grounds unrelated to the makIng of genUIne management decISIOns" Although the effect of the decIsIOn to restnct the "call for Interest" was to deny the unclassIfied employees the opportumty to be consIdered to backfill the Tnal Co- ordInator Job the eVIdence dId not establIsh that the intent was to undermIne the unclassIfied employees' nghts under ArtIcle 6 The Umon bears the onus on thIS Issue and there IS no eVIdence that the decIsIOn was made because of a desIre on the part of management, to make It dIfficult for the unclassIfied employees to compete for the posItIOn when the Incumbent retIred, or to pumsh the unclassIfied employees, or for reasons prohIbIted by the Human Rights Code There IS no eVIdence to support the conclusIOn that the decIsIOn was a delIberate attempt to undermIne the unclassIfied employees' opportumtIes for promotIOn. Counsel for the Umon IS qUIte correct when he argued that a foreseeable consequence of the decIsIOn to restnct the "call for Interest" to classIfied employees was to depnve the unclassIfied employees of a potentIal traInIng and developmental opportumty But that consequence IS InSUfficIent to establIsh that the motIve and Intent of the Mimstry was to undermIne the employees' nghts under artIcle 6 Nor does the fact that a sImIlar posItIOn - Tnal Scheduler - was posted In Brampton and open to both classIfied and unclassIfied staff support the conclusIOn that the decIsIOn In HamIlton was Improperly motIvated. Any Inference of an Improper motIve that anses from those two facts IS negated by the eVIdence of the Employer that the decIsIOn to restnct the "call for 21 Interest" was based on the financIal sItuatIOn at the HamIlton Court and the fundIng formula. Counsel for the Umon IS also correct that the fundIng formula used by the Mimstry for the courts makes It cost prohIbItIve to use unclassIfied employees to backfill classIfied posItIOns That sItuatIOn, however does not vIOlate the collectIve agreement. There IS no provIsIOn In the collectIve agreement that reqUIres the Employer to provIde traInIng and developmental opportumtIes to employees There IS also no eVIdence - nor was It argued - that the fundIng formula was specIfically and IntentIOnally structured and desIgned so as to undermIne unclassIfied employee nghts under artIcle 6 The sItuatIOn has caused, and may contInue to cause a labour relatIOns problem for the courts, but IS does not vIOlate the collectIve agreement. AccordIngly for all of the above reasons, I conclude that the Mimstry' s decIsIOn to restnct the "call for Interest" to classIfied employees was not made In bad faith. AccordIngly the gnevance must be dIsmIssed. Dated at Toronto thIS 10th day of July 2002 !-I, 1.brmtEle RandI H. Abramsky Vice-Chair