The URL can be used to link to this page

Home My WebLink About2001-0557.Policy.04-01-02 Decision 13/01 2,004 10: 42 FAX 4169773316 I l Crown Employees Grievance Settlement Board Sl,Jite 600 180 Dundas St. Wast Toronto. Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 KOSKIE MINSKY LLP Commission de reglement des griefs delO empiayes ds ia Ccuronns 8uregu 600 180, rue Dundas Ouesi TorontO (OntariO) M5G 1ZB TeL: (418) 3'ze.-1MS Te!ec. : (416) 326-1396 ~ ~ Ontario 19J UU': GSB#2001-0557, 2002-0050, 2002-0321 lJNION#{:nJ3132/0 1, OL8096/02, OLB327/0 1 r~ ~ ~ IN THE MATTER OF AN ARBITRATION Under THE CRO\VN EMPLOYEES COLLECTIVE BARGAlNING ACT BETWEEN BEFORE FOR THE UNION .FOR THE EMPLOYER HEARING Before THE GRIEV Al~CE SETTLEMENT BOARD Ontario Liquor Control Boards Employees' Union (Policy Grievance) ~ and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Nimal Di5sanayake Craig Flood Koskie Minsky Barristers & Solicito.fS Gordon Fitzgerald Counsel Liquor Controll3oard of Ontario September 30 and October 7,2003. GrievOl' Employer Vice-Chair 13/01 2,004 10: 42 FAX 4169773316 KOSKIE MIN~KY LLP 14I 003 PRELIMINARY DECISION The Board is seized with three grievances, all :;""elated to ar. Attendance Review Policy (hereinafter \'the policy") implemented by the LeBO aL its Durham Logistics Facility. The first ~5 a pOlicy q~ievance wherein the union grieves: The union objects to the employer's at~endance review process (also known as the ;mandatory Q. 11) . The process is unfair, unreasonable and arbitrary a~ld is a violation of the collective agreement, articles 2-1, 9 and any other applicable articles and statutory provisions. The other two grievances were filed by an employee, Mr. Joe Sousa, claiming that the employer had cont.ravened articles 2.1 and 9 and any other applicable clauses of the collective agreement by subjecting him to the policy. At the corrmencement of the hearing the parties raised tt-l0 preliminary issues. This d'9cision deals with t.hose. Union/s request that a grievance filed by Mr. Robert Browning be heard together with these ~rievances. 13/01 2004 10: 43 FAX 4169773:116 KOSKIE MINSKY LLP i4I 004 ~ 3 1'1 r. Browning has filed a grlGVanCe stating: "Article 2.1 (b) Discrimination and b.erassrnent as defined in the OHRC and any othe= applicable clauses in the CA and OLRA" . While the grieva~ce makes nc rererence to the Attendance Review Policy, there is no dispute tha~ the crux O'F I'1 r. Brow~1ing' s grie\la.r1ce J..S that the employer's application of the policy to him was in contravention, ;:,ntcr alia, of the collective agJ::'eemer:,t and the Human Riqhts Code. The union request.::; tha.t this grievance be heard together with the pol:.cy ~p.:ievcr'lce and l\jr. Sousa's tt-.;o grievances. Tho BIClployer obj ects to the requ.est. The employer 8<;rreed that under the Labour Re~.~~~_~~ Act and the Grievance Settlenent Board Rules of Procedul:e 7.he Board bas the po,-",'er to ordec:: that gr.::.evances be heard toge-chel. in appropriate circumstances. See Re Toronto District School Board (2002) 109 L.f\..C. (4t-h) 20 (Shime). However, i1: took the position that in the particular circumstances of this case it was inappropriate to mak.e such an order. The union submi t.s that the three grievances before the Board, as Kel~ as the Browni~g grievance, arise out of the same employer policy. While the facts in the Browning 13/01 2004 10:43 FAX 4169773316 KOSKIE MINSKY LLP l4J 005 4 case may not be identical, all four grievances raise common issues such as discrilliination on the prohibited grounds of handicap, and unjust discipline. The parties are the same and they ralse the same provisions of the collective agreement and legislation in all four grievances. In the circumstances, counsel submits that it is efficient and expeditious proceeding. to ~ioin the Browning grievance in this Counsel admitted that while the remedies ordered in favour of the individual grievors may be different., the Board can bifurcate remedial iss-Jes as it commonly does and proceed to detemine liability in all four grlevances in one proceeding. Employer counsel submitted that the Board ought to exercise its power to order t~~t grievances be heard together only where such 2.D order results in efficiency. Acco::::ding to counsel, in this caSIa the test of efficiency is not met. He contended that since Mr. Brown's grievance arises out of the actual application of the grievance t.o him and its impact on him, it may involve medical evidence and evidence relating to the employer's duty to a ccomrnoda te . That evidence will be specific to Mr. Browning. Counsel's main concern was that as a result of 13/01 2004 10:44 FAX 4169773316 KOSKIE MINSKY LLP [4J 006 5 this "grievor-speciticff evidence, there may be a delay in obtaini~g a decision in the ather three grievances. In Re Dresse:c C~.na.da Inc. (1987) OLRB Rep. Oct.. 1243 at para. 8, the OLRB reviewed the purpose of and applicable considerations for hearing cases together as follows: 8. Strictly speaki~gr the effect of consolida~ion is to fuse two or more proceedings into One. Accordingly, consolidation will only be appropriate in circumsta.nces where there is an identi ty of proceedings. somewhat mo;::-e parties and issues J..TI two or more The :.erm has come to be 'J.sed loosely $0 that "consolidation" may be appropriate where the parties and issues are substan"tially the s~me. Technically, it is more appropriate, in such circumstances, that the matters be "heard together" rather than "consolidated". When matters are heard together, they retain their indi vidu2.l identities but the evidence and repr-ti)sentotions of the parties vJi th respect to all matters in issue in all the proceedings are heE'.rd at one time by one trier of fact and law. Hearing IT.attars together c,~n be a useful alternative to consolidating them into one, where the circumstances are such that consolidat.ion is inappropriate but the practical exigencies make it desirable to have the matters proceed together. The object of either consolidating a r.urrber of proceedings, or have them heard together, is the same, that is, to save expense and avoid a multiplicity of proceedings. Underlying these practical 13/01 2004 10: 44 FAX 4169773316 KOSKIE MINSKY LLP 141007 6 the the the the or the obvious should trite to say that it will not that two or mc're proceedings not proceed together and the should or Board, as master of i te own p:cocedure, has the discretion to determine the manner in which matters brought before it will proceed. I have concluded that it is appropriate to hear the Browning grlevance together with these grievances_ All grievances are between the same union and employer and the focus of each is on t~e same policy. No arbi tra to;::- has been appointed to he'3r the Brmvning grievance. Hearing grievances together avoids duplication of expenses. Moreover, there is the potential that. if thSS8 grievances are heard in different p;;;oceedings, it may resl,llt in the Boards reaching conflicting and inconsistent conclusions. While it is likely that the Browning grievance will involve additional evidence relating to the application of the policy to the grievor, I do not agree that such evidence will necessarily be irrelevant to the other grievances. On the contrary, that evidence may assiBt the Board in 13/01 ~004 10:45 FAX 4169i73316 KOSKIE MINSKY LLP I4l 008 7 understanding the real impact of the policy on employee rights. It may provide a factual con.text for the legal issues. Horeover, at this , . - tlIne ...L have no knowledge as to how brief or extensive the medical evidence in the Browning grievance will be. To the ex~ent that t.nere is grievor- specific evidence relating to Mr. Browning's remedial claim, that need not delay the is 5uance of a decision in the other matters. If such evidence is lengthy, it is open to either party conce:cned a~out delay to move .thet the liability issues and remedial issues be bifurcated. On an overall assessment, the benefits resulting from hearing all of the grievances together far outweigh any adverse consequences of doing so. Therefore, the Board orders that the Browning grievance will be joined and heard together with the other three grievances. Any issues relating to the most efficient process of doing so may be determined at the instance of either party. JuriSdiction to reVieK exercise at management. rights for reasonableness As part of this issue the parties disag;!;"eed as to whether or not the policy ,.as diBciplinary, and if $0, whether it exposes the whole policy to arbitral review. In my view it is not appropriate to determine as a preliminary 13/01 2004 10:45 FAX 4169773316 KOSKIE MINSKY LLP ~009 8 matter, whether or not the policy is disciplinary on the basis solely of the language used in the written policy. A much more informed d~ci5ion can be made after the Board has heard evidence as to the application and administration of the policy on individual employees. Therefore, ~hat issue should be argued and determined after all of the evidence has been tendered, and not as a preliminary matter. The parties have properly raised in a preliminary wa.y, the J.55ue of the Board's jurisdiction to determine wnet:.her or r:ot the employer had acted reasonably when it exercised i t5 management rights to create the policy. The dispute is whether the Board had such jurisdiction in the absence of an allegation that the employer's action was contrary to or inconsistent with some specific provi5ion of the collective agreement or a statute. It is the employer's position that a simple allegation tb-at a pOlicy is ~unreasonable" is net one that comes within the Board's jurisdiction. As employer counsel put it, for the Board to get jurisdiction the allegation must have "a hook" to some provision in the collective c:greement or statute. He Hent so far as to submit that as long as it is not contrary to a provision in the collective agreement or statute the 13/01 ?004 10:45 FAX 4169773316 KOSKIE MINSKY LLP 141 010 9 employer: .is not oblig-ed to exercise its management rights reasonably. It must be made ciear that t.he union has l.n fect alleged that the Policy conflicts wi~h the collective agreernent. in a nurr.ber of ways, and furth.er tl:at the pOlicy contravene::; the onteri 0 Human Rights Code. The employer agrees that those issues are properly before the Board. However, the preliminary issue has arlsen because the union has taken the alternate position that, even if no specific provision of the collective agreement or the Human Rights Code has been contre.vened, the board ought to strike down t~e pOlicy on the grounds that it is an unreasonable exercise of management rights. The employer takes the posi tion that this po.rticular collective agreement does nol: require that management rights be exercised reasonably or that employer pdlicies IflUst be reasonable. Since the Board lacks juriSdiction to amend or add to the collective e,greement, counsel sl.:bmi ts that by intrOducing a "reasona.blcnes$ requirement, the Board would be exceeding its jurisdiction. The collective agreement that governs the rights and obligations of these parties does not include a 13/01 2004 10:46 FAX 4169773316 KOSKIE MINSKY LLP f4I 011 10 management rights clause. Nevertheless, the union did not dispute that it is a legitimate function of the employer to implemen.t a policy designed to manage <;lbsenteei$m in. the workpla.ce. Se~ Re B.C. Railway Co. 1982) 8 L.A.C. (3d) 250 (Hope) . It's complaint is that ths employer has exercised that management function unreasonably. The parties referred me to a large number of court decisions and arbitration awards. The arbib~al jurisprudence represents an attempt by arbitrators to reconcile what appears to be conflicting and inconsistent pronouncements by the Ontario Court of Appeal ln its judgments in Re Ivlet.ropolitan Toronto Board ,of Com'rs of Police and Metropolita~ Toronto Policy Asso. et a1 (1981), 124 D.L.R. (3dO 684 and Re Council of Printing Industries of Canada and Toronto Printing Pressmen and Assistants' Union No. 10 et all (1983) 149 D.L.R. (3d) 53. TtJha t is no longer controversial is the principle that the employer has a duty to act reasonably in exercising its management rights, whe~e $uch a duty is required, explicitly or implicitly, to give effect to employee :dghts explicitly reco(;jnized in a collective a.greement. Arbitrators have expressed this proposition in 13/01.2004 10:46 FAX 41697i3316 KOSKIE MINSKY LLP 14I 012 11 different ways. For instance, in. R~...~~.stin Harbour Castle, (1991) 23 1.A.C. (4th) 354 (R./'1. Brown) it Has held that. a duty to ace. reasoT1abJ.~{ should be L~!.plied INhere it. is necessary "in order to harmonize management right.s with rights accorded 1;::.0 employec5 elsewhere in the collect.i ve o.greement" . In Re Municipa1itX of Metropolitan Toronto (1991) 19 L.A.C. (4::h) 287 (Davi.s) it ';-ie.S s-:ated that a duty to act reasonably 5hould be implied ~only where it has Deen necessary to avoid a conflict with, or undermining of righ'ts CO:1ferred by $Otne other provision in the specific collective agreement,". Consistent with this case law, the employer corlceded trat the BGarcl has jurisdic'tion to deal with the union's allegation ~hat the policy is in conflict with various provisions of the collective agreement. The mQ~e contentious issue is wnether a duty to act reasonably may be implied even whe~ it is not necessary to avoid conflict or inconsiotency with employee rights accorded elsewhere in the collective agreement. The union ~elied on a line of cases that had interpreted the decision in R$ I<VP Co. f (1965) 16 L .1L C. 73 (RObinson) as imposing a g-eneral :::equirerru~1"'!.'t: that any rule promulgated by the employer in the exercise cf its management rights must meet a test of "reasonablenessH. It is the Board's view that a 13/01 2004 10:47 FAX 4169773316 KOSKIE MINSKY LLP Gil013 12 notion of such a general implied duty to act reasonably is no longer tenable after the clear pronouncement by the Court of Appeal in t.he Police Com'rs case. The be'tter interp:cetation is that tbe Board's requirement lD Re KVP that the rule r'l'lust meet a "Cest of reasonableness was made in the con"Cext of the just cause requirement in the collective agreement. See, B.C. Ra~lway Co. (1982) 8 L.A.C. (3d) 250 (Hope) and Re Central Park ,:Lodge Ltd., (2000) 91 L.A.C. (4th) 403 (Ellis). The decision ~n Re McKellar Gen~ral Hospital, (1986) 24 L.A.C. (3d) 97 (Saltman) contains an excellent review of the relevant c:ase law. I can do no better than to quote at length from that decision at pp. 103-109: The question of whether or not the ~equirement of reasonableness ought to be implied into a collective agreement has been the subject of consideJ:;"able arbitral and judicial debate. :In 1975 the Ontario Divisional Court issued a decision in the case of Re Metropolitan Toronto and Toronto Union, Local 43 et .sl. (1977) JYlunicipali ty of Civic Employees~ 79, D.L':;. (3di 249, 16 O.R. (2d) 730 (the "~1etrOPQlitan Toronto/' case), which appears to have accepteci the notion that management is bound to a so-called "duty of fairness" in the ~xercise of its management Metropolitan Toronto arbitral jurisprudence that management was rights. Follow-ing the decision, a large body of was developed which held 1.3/01 ~004 10:47 FAX 4169773316 KOSKIE MINSKY LLP bound to act fairly and reasonably in the exercise of management rights. Subsequently, the notion of a superadded "duty of fairness' was rej ected i". the case of Re Met;.E9,l2.o1i tan 'TOr.onto Board of Cem'rs of Poiice and Metropolitan Toronto Police Ass'n et ala (1991), 124 D.L.R. (3d) 684, 33 O.R. (2d) 476, 81 C.L.L.C. para. 14,116 (leave to appeal to S.C.C. refused D.L.R. lac. Cit., 39 N.R. 499n) (the "Metropolitan Toronto Policen case). In that case, the grievors alleged that they had been denied the opportunity to participate in the annual inventory on an overtime basis in a manner which was arbitrary, discrininatory, unfair or in bad faith. The collective agreement contained no express provision dealing ,tiith t.he assignment of ei ther overtime or inventory ~vork. Acc()rdingly, the matter fell to be determined under the management rights clause which provided, among other matters, that it was the exclusive function of management to "manage the operat.ion". Following the authority of t.he Metropolitan Toronto decision, the arbi t;;ator held that the employer was bound to exercise its manage.ment rights fairly and without discrimination and, therefore, that the employer violated the collective agreement by unfairly denying the grievors the opporhmi ty to participate in the annual inventory on an overtime basis. An application :Eor judicial review was filed in the Ontario Divisional Court. However, the Divisional Cou.rt did not decide the natter and, under the authority of s. 35 of the Judice. t.ure Act, R.S.O. 1980, c. 223 (repealed 1984, c. 11, 141 014 13 13/01,2004 10:48 FAX 4169773316 KOSKIE MINSKY LLP s. 187), referrea the matter tor determination to the Ontario Court of Appeal" The COl.1rt of Appeal held t:-.at where managemer:t has ,:he exclusive right to determine how it shall exorcise the powers conferred under the management rights clause, tbe exercise of these powers cannot be challenged solely on the basis that they were mad.(! c:.nfairly or in a disc.t"iminatory manner. At p. 687 D.L.R., pp. 478-9 O.R., tho court said as follows: In 01.1::'- opinion, tl'1e management rights clause gives management the exclusive right to determine how it shall e:l'~erGise the pOl>.'ers conferred on. it by that clause, unless those powers are otterwlse circumsc~ibed by express provisions ot th~ collective agreement. The power to challenge a decision of manag-ement must be found in 50me provision of the collective $greement. Having regard to the nature of the agreement, and to its provisions, we see no necessity in this case to imply a terrn '!::hat the management rights clause vdll be applied fairly and without di8crimination. If such a term were to be implied, it would mean that every decision of ~anagement made under the exclusive author i ty of the management ~ight5 clause would be liable to challenge on the grounds that it was exercised unfairly or discrirninati vely. Ir: our opinion, this 141015 14 13/01,2004 10:48 FAX 4169773316 KOSKIE MINSKY LLP would be contrary to the sprit and intent of the collective agreement. Followin,~ the Metropolitan Toronto Police case, the Ontario Court of Appeal had further occasion to consider the exercise of management's discretion. In the case of Re Council of Printing Industries of Canada and To~onto Print~ng Pressmen and Assistants' Union No. 10 et al. (1983) r 149 D.L.R. (3d) 53, 42 O.R. (2d) 404, 83 C.L.L.C. para. 14,050 (leave to appeal to S.C.C. refused 52 N.R. 308n) (the "Council of Printing Industries" case), the collective agrol::ment required the company to "permanently" classify 34 employees, thereby making them immune from lay~off. The grievance arose because the union claimed that the cc'mpany 'liolated the qrievor5' seniori ty rights in permanently classifyi~g five of these employees. The arbitrator held (Re Photo Eng~avers & Electrotypers Ltd. And Toronto Printing Pressmen & Assistants' union, No. 10 (1980), 25 L.A.C. (2d) 88) that the job security rights of employees permanently classified by the company under art. 22 of the collective agreement were an exception to the seniority rights provided by art. 6 of the collective agreement and in effect abridged the seniority rights of employees not so classi fied. He further held that because of the fundamental importance or seniorH:y rights under the collecti VB agreement r the company must exercise its discretion to permanently classify employees in a reasonable manner, without discrimi:nation, bad faith or ClJ;oi trariness. The arbi trator' s decisiOD ~.qa.s quashed by a decision of tho Divisional Court {unreported), ,..hich wal3 I4l 016 15 13/01 2004 10:48 FAX 4169773316 KOSKIE MINSKY LLP ultimately set aside by the Court of Appeal. In restoring the decision of the arbi~rator, the Court of Appei:",l made -L.'- clea:c that. it was not deal:.ng with the exercise of management rights l,i.nder the manageroent :right::; clause (as had been the case in the Metropolitan Toronto Police case) but with the exercise of management' $ discretion under art. 22, a substantive provision, in light of the collective agreement as a whole. As a result, the court declined to interfere with the arbitrator' $ deter.mination that management was bound to exercise its discretion under art. 22 in a manner which ~as not arbitrary, discriminatory, unreasonable or in bad faith. Numerous arbitration awards have been written in an attempt to reconcile the appa~ent conflict between the decisions in the Metrooolitan Toronto c Pelice and Council of Printing Industries cases. Some arbitrators have hsld that the decisions can be explained (referred to the distinction basi:;; of of a on in the appeal by the the the Court f9.'.mcil .of Printing Industries case) exercise of rr.anagement-' s discretion between unoe;J; management rights cleu$e and under a substantive provision of ths collective agreernent: See Re Koyal Ontario MUSHlIrt and Ontario Public Service Ern:eloyeest Unio~ (1983), 12 L.A.C. (3d) 207 (P.C. Picher); Re City of Windsor and Ontario Nurses' Assoc. (1985), 19 L.A.C. (3d) 1 (McLaren) . Other arbitrators do not accept this distinction: see Re McKellar General Hospital and Ontario Nurses' Assoc., association grievance on the employer-'s nepotism policy (August 24, 1984), unreported (Beatty) (reported 15 L.A. C. (3d) 353) the "McKellar HospitalU case); Re Toronto East l€J 017 ]6 13/ lH .2004 10: 49 FAX 4169773316 KOSKIE MINSKY LLP General Hospital and ~~.r.vice Employees. .pnion, Local 204 (1984) , ~ ':l L.ILC. 93dO 400 (Burkett) .J..~ (the "Toronto Eas t~ General" cas e) i Re Great Atlantic &: Pacific Co '" of Canada. Ltd. and Bakery, Conf~.9..S,~.2E:~.ry_ ;;; Tobacco Wo:rks.,rs TJnion, Local 264 (1984), 18 L.A.C. (3D) 44 (Eh.::.rkett). In the rc1cKellar Hospital case, the association challenged the employer's anti-nepotism policy, which prohibited the employnent of family merr~ers in the same depa.rtment or unit on the grounds, among others, that the policy was un:::easonable. The employer submitted thatt;.he arbitrator lacked jurisdiction to determine whether Or not the policy was unrea50nable as the exercise of managament rights was not subject to the test of reasOLableness. After reviewing the decisions in the Metropolitan Toronto Police and Council of Printinq Industries C~5eSf the e~bitrator rejected the distinction Appeal in the Ccuncil of betweer" the exercise of wade by the Court of Printing_, Industries case management's discretion rights cl,':J.Use and the pursuant to a mana<;rement exerClse of management's discretion pursuant to a substantive provision of the collective agreement and held that the sam8 considerations apply to both. To the extent that the Court of Appeal held that different considerations ap~ly, the arbitrator held that the two decisions cannot be reconciled. Preferring to follOw the decision in the Council of Printing Industries case, the arbitrator concluded that the standard of reasonableness applied to the e::.;;ercise of rnanagement' oS discretion to promulgate plant rules and policies under the managerne~t rights clause. @I 018 17 13/01,2004 10: 49 F.\! 41139773316 KOSKIE MINSKY LLP In The board's Vlew, the distinction made by the Court of Appeal In the Council of Pri~ting Ir.dustries case between the exercise of management' s di$Cl~etion ur:.de:r. the management rights clause and under a substenti ve provision of the collective agreement cannot be entirely ignored.. Firstly, weight ought to be given to the fact that the court expressly stated that it was making this distinctiorl _ Secondly, the distinction is CJl1sistent with the theory that a party to a collective agreement is bound to adrnini$ter its oblir;rations under the ag:reement in a reasonable manner: See Re Int't Nickel Co. cf Canada Ltd. and U.S<W. Local 6500 (1977), 14 L.A.C. (2d) 13 (Shime); Re l\oyal Ontario Museum and Ontario Public Service Employees' Uni~r supra, whereas no similar theory would appear to apply to the exercise of management':s discretion under the management rights clause. However, even if there is no distinction between the exercise of management's discretion under the management rights clause and under a substantive p~ovi5ion of the ccllective agreement, the different conclusions in the Metropolitan To~onto l?olice and Council of Printing_ Industries cases can be understood in relation to the test fo~ implying a term into the collecti'l)"e agreement. In essence, the test holds that an arbitrator (or board of arbitration) has the power to imply a term into a collective agreement if two conditions are met: (1) if it lIS necessary to imply a term ~n oraer to give "business or collective agreement efficacy" to the contract, in other ~.,rords, l4I019 18 13/01. 2004 10:50 FAX 4169773316 KOSKIE MINSKY LLP ~ . in order to make the collective agreement work; and (2) if, having been made aware of the omission of the term, both parties to the agreement would have agno.ed without hesitation to its insertion. See Re Kennedy LO?5e Nursing Home EmPJ:..?5'~,e$ Union, Local 204 (1980), 28 388 (Brunner); Re OE~E"$tein & Koppel and Int'l Assoc. of Machi~~st$, (1976), 12 LA.C. (2d) 417 (Brunner). and Service L.A.C. (2d) Canada Ltd. Local 17 '10 In the Metropolitan Toronto Police case, the court expressly stated that the test fo~ the inclusion of an implied term had not been met. More particularly, at p. 687 D.L.R., p. 479 O.R., the court said: "we see no necessity in this case to imply a te~m that ". management rights ... ';olil1 be applied fairly and without disc~imination" (emphasis added). By way of contrast, the implication arises from the decision in the Council of Printing ~ndustrie$, case that the arbitrator was of the view (1) that the insertion of the implied term of reasonableness .was necessary to give ~business efficacy" to the collective agreement, i.e., to ensure tha~ valued seniority rights under the collective egJ;esment vvould not be eroded; and. (2) that the parties would have agreed to the inclusion of the term had they put their minds to it. This latter approach to the exercise of management's discretion is consistent with the vie\oJ taken in the Toronto East General case. In that t.he a2:bitra.tor required case, to wes d.etermine whether in the re implied was [4J 020 19 13/0i 2004 10:50 FAX 4169773316 KOSKIE MINSKY LLP " restriction on the employer to act reasonably in the exercise of its function to layoff employees. a.rbitrator After considering both, t.he concluded that the decisions In the of l"letropoli ta!}.~_~ Toronto :?olice and Council P . t' ...rl.n_.l.ng Indu.st2~ie8 can be understood by cases reference to the g-eneral principles of contract law and, more particularly, to the rules relating to implied terms and not to ;:my doctrine.ire distincticn between the exercise of management's discretion under the management rights clause and under a substantive provision oft-he collective agreement. At pp.407-B of the decision, the arbitrator's reasoning is set out as follows: In Cur visl" the attempt to dis.tinguish the judgments of the Cot:irt of Appeal in Council of Printinq Industr~e5 at Canad~, 5upra, from that of Netropolitan Toronto Board of Com'r5 of Police r supra, on the basis that the latter case deals with the exercise of a management discretion under a IClanagernent rights clause 1Nhile the fermer deals with the exercise of a management discretion f01.J.nd elsewhere in the agreer.1ent is an artificial distinction which misses the point. Toronto A closer Board of reading of COI:'/ rs of Metro]?olitan Pol i ce, supra and the arbitration awards that ....lere under review in that case makes it clear that the Court of Appeal was concerned with the importation into a collective ~~ general rule, that all agreement of decisions of management pursuant to a management rights clause which do not contravene any other provisions of the agreement must stand the further test of ',,,,nether in the opinion of 14I 021 20 13/01 2004 10:51 FAX 4169773316 KOSKIE MINSKY LLP ~022 '. . 21 the arbitrator they were made fairly and without discrimination" (p. 687 D.L.R., p. 478 C.R.). In the face of these words, we ro~st adopt the interpretation of the Metropolitan Toronto Boa:::-d of Com1rs of Police judg~ent expounded by arbitrator Swan In Re iYleadow Park Nursinq Home,..._and Service__~J21oyees Ir.t' 1 U~'lion, Local 220, supra (1983) I 9. L.A.C. (3d) 237 (Swan) (ivhich preceded the judgment of the Court of Appeal in Re Council of P:r:~nting Industries o~ Canada, supra), which focuses on the court's p~ohibition of the importation of a general rule which is not supported on the language of the agreement. The awards reads (pp. 140-1): "what the Metropo}i tan Toronto Police decides, in our respectful ,Jiew r 1.5 simply tha't ~rbi t.rators exceed their jurisdiction if they p~rport to establish general principles for the administration of collective agreG'ments divorced from the lang!Jage negotia tea by the parties in the matter before them#, and that they Gornrnit e:crors in law if they purpo~t to treat a judgment of the courts, refusing to interfere i'l7ith at) arbitration board on the basis that it did not give collective agreement language a meaning which it could not reasonably bear, as binding expositions of the general law. Unfortunately, many arbitrators, and indeed some courts, have 13/01 2004 10:51 FAX 4169773316 KOSKIE MINSKY LLP 14I 023 .. . 22 turned the rationale of Metropolita~ Toronto Police upside down, and have taken it instead to mean that there can never be i.mplied into a collective agreement a duty to exercise a management function or prerogat:i ire in accordance with tests of fairness or reasonableness. The r-1etropo~.i tan Toronto Police case does not and cannot_ alter the law of contract2al in.terp:.cetation; every allegatior. that an employer is in breach of the colleotive ag~eement m~st be considered individually, against the language wh~ch the parties themselves negotiated, and in accordance canons of with the well-known construction. If, based on the general law of implied terms in contracts, as the general law may be adapted to the particular case of collective agreements, tl1e implication arises that a particular management function must be exerCi.3ed in a certain way, then an arbitrator is bound to make that implication, sin.ce it arises from the collective agreement from which the arbitrator draws his or her jurisdiction and which constitutes the entire bargain between the parties. To whatever 13/01 2004 10:51 FAX 4169773316 KOSKIE MINSKY LLP ,. It ex~ent such cases as Re United Glass & Ceramic Workers of North F..merica et al. and Libbey-St. et al. (1981) I 125 702, 33 O_R. (2d) 760 Clair Inc. D.L.R. (3d) (Ont. oiv. Ct.) , appears to suggest some other conclusion, it woUld respectful be ollr submission that they $ho~ld not be followed". (See also Re Board of Education for the City of Toronto and Toronto Teachers' Fecicration, supra (1982), 3 L.A.C. (3d) 336 (Kennedy) .) On our reading the judgm~nt of the Court of Appeal in Co~nci~ of Printing Industries of Canada, supra, does not in any way conflict with the prohibition in Metropolitan Toronto Board of Com'rs of Police, supra, against the import.ation into .;; collective agreement ,of a general requirement of reasonableness fairness. and The arbit~ation award in Council of Printing In9-2~tries of Ca.nade, supra, was upheld on th~ ground that the interpretation placed on the article which gave management the authority to classify was one it could reasonably bear. The court framed the issue as of interpret"". tion (as of a one distinguished the importation from general requirement not referenced to the language of thE1 collective a9reement) and found that the language of the clause, when read l.n a labor relations context. and in the context of t:.he agreement as a whole, iii 024 23 13/01 2004 10;52 FAX 4169773316 KOSKIE MINSKY LLP 141 025 , '. 24 could support an in a "bona fide" it PIUS t Plxi:;. considerations) . implied requirement to act fashion (in the sense that its mind to relevant In our view, the two decisions can be read together as standing fOl::' the pl::oposi tion advanced by arbitrator Swan; that is, "If based on the general law of i.mplied to:rms in cor.tracts, as the general law may be adapted to the particular case of collective agreements, the implieatio~ arlses that a particular management function must be exe!:'cised if. a certain way, then an arbitrator is bound to make that. implication ainee it arises from the collective agreement from Dhich the arbitrator draws his or her jurisdiction and which cansti tutes th,e entire bargain between the parties." In light of the two Court of Appeal decisions, the most sensible approach, and the one that I subscribe to, is that t.aken in Re Ms-adow Par-k Nu:csino: Harne - ~ (supra) . The state of the law following the Toronto E'olice Com'r15 and Printing Industries court decisions, as I read them, may be sumnarized as follows: An arbitrator has no jurisdiction to import into a collectiv-e agreement a general duty on an employer to exercise manageme!it rights reasonably. However, if on an application of the general law of implied terms in contract r the implication arises from the 13/01 2004 10:52 FAX 4169773316 KOSKIE MINSKY LLP IaJ 026 ~ . . . 25 collective agreement itself that a particular management right must be exercised ~ea$onably, the arbitrator is bound to make that implication since i t3.rises from the collective agreement negotisted by the parties, from which the arbi~rator draws his or her jurisdiction. Such an implied duty may arise from a specific pr.ovision of the collective agreement, or from a reading of the agreemGnt as a whole in a labour relations context. In the instant case, the union has not pointed to anything in the collective agreement that could give rise to an implied term that management rights must be exercised reasonably. Nor is th~re anything in the collective agreement to justify an implied term that the particular exercise of the management right to creB.te an attendance review policy must be reasonable. Therefore, the Board has no jurisdiction to review the reasonableness, of the employer's exercise of management rights to creat~ the policy, or of the policy itself. The Board, however, does possess jurisdiction to determine whether the policy conflicts with any employee ~ight5 conferred by the col1ecti ve agreement, including the issue of ,,,hether the policy constitutes discipline. And of course, the Board alse has jUJ:"isdiction to determine the union's allegation 13/01 2004 10:53 FAX 4169773316 KOSKIE MINSKY LLP 141 027 ..; ~) '" 26 that the policy is contrary to the Ontario Human Riqhts Code. This proceeding will continue U'1 accordance "Ti th the directi0l1S contained in this decision. The Registrar shall schedule further hearings in COi)sul tat ion with the parties. Dated t~is 2nd day of January 2004 2t Toronto, Ontario. Vice-Chairperson