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HomeMy WebLinkAbout1990-0541.Bousquet.91-03-01 Decision ""- ONTARIO CROWN EMPLOYEES EMPLOYES DE LA COURONNE DE L 'ONTARIO GRIEVANCE SETTLEMENT BOARD COMMISSION DE REGLEMENT DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. M5G IZ8 180, RUE DUNDAS OUEST, BUREAU 2/00, TORONTO IONTARIO). M5G IZ8 TELEPHONE/TELEPHONE: (416) 326-1388 FACS/MILE/TELECOPIE: (416) 326-1396 541/90, 542/90, 543/90 L~ .50(1 IN THE HATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT BETWEEN BEFORE: . FOR THE GRIEVOR FOR THE EMPLOYER HEARING: Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (Bousquet) - and - The Crown in Right of Ontario (Ministry of Natural Resources) M. Gorsky M. Vorster G. Milley Grievor Employer Vice-Chairperson Member Member A. Hudgins Counsel Cornish Roland Barristers & Solicitors A. Rae Counsel Winkler, Filion & Wakely Barristers & Solicitors September 20, 1990 s ~ INTERIM DECISION There are three grievances before us which were filed by the Grievor, Romeo J. Bousquet, who is an Accounts Payable Clerk employed by the Ministry of Natural Resources. The grievances, all of which are dated April 19, 1990, are as follows: Grievance 541/90 states: I grieve that the Employer, in continually harassing me is violating the provision [sic] of Article 18.1 of the Collective Agreement. The Employer has further violated Article 18.1 in condoning continued harassment of me by other staff members in the office - the harassment is effecting [sic] my health to the point of a nervous breakdown - M.N.R. will be held responsible for any deterioration of my health. The settlement desired states: That the harassment cease and desist by Bill Cowan and other staff members. That I be treated with the same respect and courtesy as other unclassified and regular staff members. Grievance 542/90 states: I grieve that the letter of reprimand dated April 11, 1990 from John Kerr, Director, is unfair, unwarranted and unjustified. The settlement desired is: '" '" 2 withdrawal of the letter dated April 11, 1990 and expunged from all records. Removal of the water cooler from the office. Grievance 543/90 states: That B. Cowan has discriminated against me, because I am a francophone. He sent an english [sic] speaking person on a french [sic] course (back up person). I requested refresher course 2 years ago. Employment equity is not a priority in our office for francophones, also sent unclassified on course. That B. Cowan has been harassing me for the last year, because I am a francophone. Also, charges are to be laid with the Human Rights Commission. The settlement desired states: That M.N.R. follow the guidelines set out in employment equity as a francophone, I am in a designated group. M.N.R. is to ensure that I have as good a chance as anyone else to compete for promotions. That M.N.R. provide training and development to help me reach my potential. That M.N.R. monitor this situation very carefully. At the opening Of the hearing, counsel for the Employer raised certain preliminary objections to the jurisdiction of the Board. It was submitted that grievance 543/90 was inarbitrable, and that grievance 541/90 was inarbitrable in part. Exhibit 4 was filed with us, being a letter dated September 12, 1990, from counsel for the Grievor to counsel for the Employer. The letter contained "particulars regarding Mr. Bousquet's harassment grievance dated April 19, 1990 [541/90] and a discrimination grievance of the same date [543/90].11 Paragraph 4 at page 3 of ) ~ 3 the said letter provides: Fourthly, Mr. Bousquet was not given a fair opportunity to go on training courses. See the paragraphs regarding the discrimination grievance below. In addition he was unfairly denied an assignment to help train staff at the Maple office in January of 1990. An unclassified member of the staff was sent instead. Counsel for the Employer submitted that the said grievances were inarbitrable to the extent that they were based on the allegations quoted in the particulars. There were two seperate elements to the objection to the arbitrability of grievances 541/90 and 543/90. In the first, counsel for the Employer argued that the Grievor was asking this Board, in effect, to enforce the provisions of the ontario Human Rights Code 5.0. 1981 c. 53 (the IICode"). The section of the Code referred to was section 4: (4) (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry... ethnic origin ... (2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry... ethnic origin It is evident, based on the objection to arbitrability, that counsel of the Employer believes that the complaints in grievances 541/90 and 543/90 may involve allegations that the Grievor was discriminated against and harassed in not being sent on a training course or given a development opportunity because 4 .. of his race, ancestry or ethnic origin. Because the grievances were couched in language relating the alleged discrimination and harassment to the fact that the Grievor was a francophone, we cannot be certain that this is the case. "Francophone" is defined in Webster's New World Dictionary - Third College Edition, as: II... having to do with speakers of French - n. a person who speaks French." If the Grievor was limiting his complaint to an allegation that he had been discriminated against and harrased because he was a person who speaks French, then this might not amount to a claim that he was being harassed or discriminated against because of his race, ancestry or ethnic origin. At this time, we cannot be certain of what the Grievor meant when he used the term "francophone.." For the sake of disposing of the . preliminary objection, we will assume, without deciding that this is the case, that the Grievor intended to encompass, in his use of the term "francophone," allegations that he was being discriminated against and harassed not only because he spoke French, but because of his race, ancestry or ethnic origin. The fact that counsel for the Grievor did not agree that the alleged acts of discrimination and harassment were not based on the Grievor's race, ancestry or ethnic origin, and that the Grievor wrote a letter to the Human Rights Commission about the alleged acts of discrimination and harassment is consistent with the view that he intended to complain about discrimination and harassment based on grounds including those found in section 4 of the Code. If the evidence discloses that this is not the case, then the ~ 5 objection to arbitrability based on the fact that the Grievor is restricted to seeking redress under the Code would not have to be further addressed. It was also submitted that there was no provision in the Collective Agreement alleged to have been violated by the Employer in grievance 543/90,and that, accordingly, this Board was without jurisdiction to dea~ with it. It was further submitted that it was beyond the jurisdiction of the Board to consider a grievance which, in any way, concerned the granting of training or development opportunities. The second objection raises a number of issues relating to the question of what constraints are placed on management in exercising its discretion with respect to the subjects of training and development, and whether the rule is changed when the grievance involves a claim that an employee's rights under the collective agreement, in this case with respect to promotion opportunities, may be adversely affected by the exercise of the management rights referred to. It also raises the question whether it makes a difference, in considering the last mentioned question, whether the right on an employee under the collective agreement is a right in the abstract, as where the grievance does not concern an actual competition for which a grievor is an applicant. The issues raised also concern the extent to which jurisprudence dealing with the obligations on management in the exercise of its rights under management rights provisions decided in cases outside of .' . 6 the Grievance Settlement Board's jurisdiction affects the Board's jurisdiction. Of necessity, it will also be necessary to examine the nature of the Board's jurisdiction under relevant legislation and case law. A. The obiection to arbitrability based on an alleqed violation of the ontario Human Riqhts Code Counsel for the Employer relied upon the case of Sinqh 240/79 (Eberts), where, at page 6, it was noted that the Board was "asked to decline to hear the grievance on the ground that this matter was more properly the subject of complaint under [the "Code"] and reference was made to the provisions of section 4 ( 1) (b), R. S . o. 1970, c. 318 [now s. 4 (2) ] . At page 9 of the Sinqh case, the Board noted: "Had the grievor already submitted a complaint to the Human Rights commission, different considerations might arise." At page 10, the Board stated: It may be that where a complaint to the Human Rights Commission has reached the stage where the Grievance Settlement Board could be sure that a Board of Inquiry would be hearing the complaint, the Grievance Settlement Board would consider adjourning its proceedings to await the outcome of the Board of Inquiry. Counsel for the Employer also relied on Aubin, 1044/85 7 (Gandz). At p. 4 of the Aubin case, the Board stated: It may be that, indeed, this practice contravenes the Human Riqhts Code. But the job of this board is not to rule on violations of the Human Riqhts Code. The Code has its own enforcement mechanisms and these should be used to resolve complaints arising under it. We would only use this statute in the task of interpreting a collective agreement. Since was have found no ambiguity in the interpretation of the collective agreement, the Human Riqhts Code simply does not corne into play ... . Counsel for the Employer also relied on Beintner, 1841/87, 1842/87 (R.J. Roberts). In the Beintner case, the Board also had to deal with a preliminary objection that it lacked jurisdiction to enforce the Code through arbitration. There, it was submitted (at pp. 7-8): "... the grievor already has a remedy of filing a complaint before the Human Rights Commission and it would be error for the Board to afford him an alternative route for relief through the arbitration procedure." Reference was made to the Sinqh and Aubin cases. In referring (at p. 10) to re Windsor Hospital Centre Inc. and ontario Nurses Association (1979), 24 L.A.C. (2d) 35 (Ianni), the Board, in Beintner, noted that the board in the Windsor case: " rejected an attempt by the union to 'cloak' as a violation of a prior practice regarding the calculation of vacation entitlement an alleged contravention of positive obligations under the Employment Standards Act." The Board (at 8 p. 10) quoted from the windsor case (at p. 39): In these present grievances ... there are no provisions of the collective agreement in conflict with the Employment Standards Act, 1974. If, as alleged by the Association, the parties in their practices and procedures are violating the Employment Standards Act, 1974 but are not violating the collective agreement, then this 1S a matter for the Director of Employment Standards and not one for a board of arbitration. Further, at pp. 10-11 of the Beintner case, the Board stated: On the other hand, where the claim is that a provision of the Collective Agreement violates a pUblic policy or is illegal because it contravenes a statue, arbitrators have not hesitated to consider the statute and render their interpretation of it. Noone has ever doubted that in such a case a board of arbitration or arbitrator is obligated to acknowledge that impact and refuse to enforce the offending provisions. [Referring to re Denison Mines Limited and united Steelworkers (1982) 5 L.A.C. (3d), 1928 (Adams)]. Counsel for the Grievor submitted that as the Grievor had only written a letter to the Human Rights Commission and had some conversations with one o~ its representatives concerning the matter, and as the Commission has not even commenced an investigation, nor has a complaint been issued, there is no problem of either double jeopardy or res iudicata referred to by the Board in the Singh case at p. 9. In arguing in favour of the arbitrability of the grievance, counsel for the . 9 Grievor was not suggesting that there remained a judicial policy in favour of more forums in which discrimination and harassment questions might be adjudicated based on breaches of the Code. In the Beintner case (above), at pp. 16-17, the Board stated: with respect to Sinqh, we note that the observations made by Professor Eberts (as she then was) regarding the perceived existence of a judicial policy in favour of more rather than fewer forums in which discrimination questions might be adjudicated were based upon the decision of the ontario Court of Appeal in Bhadauria vs. Seneca Colleqe(1980), 27 O.R. (2d) 142. The Bhadauria decision, however, was reversed by the Supreme Court of Canada, which concluded.that the plaintiff did not have an independent tort action for discrimination which she could pursue in the courts but was required to follow the procedure laid out in the Human Rights Code. See Board of Governors of Seneca Colleqe of Applied Arts and Technology v. Bhadauria (1981), 124 DLR (3d) 193 (S.C.C.). What concerned the Board in the Beintner case was the .attempt to enforce II ... purely statutory rights through labour arbitration. So, for example, where a statute places a positive obligation on one party toa collective agreement and the collective agreement is silent upon the matter, an arbitrator will decline jurisdiction in order to avoid the spectre of re- writing a collective agreement which served in the first place as the basis for his jurisdiction." (Beintner, at p. 8). Counsel for the Grievor stated that she was not urging us to enforce purely statutory rights but submitted that we were being asked to interpret the management rights provisions found in section 18(1) of the Crown Employees Collective Barqaininq Act R.S.O., 1980 c. 10 108, as amended, (the "Act") in a manner consistent with the general law. Counsel for the Grievor also relied on re Wentworth County Board of Education (1984), 14 L.A.C. (3d) 310 (DeVlin), at pp. 322-323: Despite any reservations as to whether decisions of management pursuant to the management rights clause must meet a general test of fairness or reasonableness, the right of managemant to assign job duties ought not to be interpreted in a way which would enable management to conduct its affairs in a manner that is either contrary to public policy or to a public statute. In McLeod et al v. Eqan et al (1974), 46 D.L.R. (3d) 150, [1975] 1 S.C.R. 517, 5 L.A.C. (2d) 336 sub nom. Re U..S.W., Local 2894 and Galt Metal Industries Ltd. 74 C.L.L.C. para 14,220, the Supreme Court of Canada determined that the Employment Standards Act in prescribing maximum hours of work had superseded the right of an employer to require an employee to work beyond such hours except with the agreement or consent of the employee. It was found that a provision in the collective agreement giving the employer the right to schedule its operations in its discretion did not constitute the necessary agreement or consent. In allowing the appeal, the Supreme Court of Canada restored the lower court order of the Honourable Mr. Justice Morand who had held that while overtime could normally be demanded as a management right, that right had been limited by the Employment Standards Act prescribing a maximum total work week. It is also of note that Chief Justice Laskin in concurring with the majority stated that while similar deference will not be accorded to an arbitrator's interpretation of the collective agreement, an arbitrator must not refrain from construing a statute involved in the issues which have been brought before him. The matter may also be viewed from another perspective. The object or purpose of contractual interpretation is to ascertain the intention of 11 the parties. Can it be assumed that in negotiating the collective agreement the parties intended that either one or the other could carry out its rights and obligations in a manner contrary to public policy or contrary to a public statue. The answer must be in the negative. For this reason it is appropriate to determine whether the board's assignment of the grievor to the main office pursuant to the management rights clause was discriminatory in the sense that the grievor was denied a right to equal treatment with respect to employment without discrimination because of handicap. In this case it was the board's position that the reassignment of the grievor to the main office enabled it to make more efficient use of its personnel. In addition, concern was expressed with the grievor's continued ability to perform the duties of secretary in the student services department. Turning firstly to this latter contention, it is clear that if a person is incapable of performing the essential duties of a particular job because of handicap there can be no discrimination' which is contrary either to public policy or the Human Rights Code, 1981. As a consequence, it is necessary to assess the nature of the concerns expressed. Further, at p. 325 of the Wentworth case: While the collective agreement gives to management the right to assign job duties within a classification, that right was carried out in a manner which was discriminatory and which denied the grievor equal treatment because of her physical handicap. In consequence, that right was exercised in a manner which is contrary to public policy as enunciated in the Human Riqhts Code. 1981. If we had concluded that this was a case where the Grievor was attempting to use the alleged bad faith exercise of a management right pursuant to section 18(1) (b): "... to 'cloak' a 12 naked submission that the Ministry discriminated against [francophones] in violation of section 4 of the ... Codell when it failed to send the Grievor on the refresher course, or to furnish him the other training opportunity referred to, we would have followed such cases as Beintner and Aubin. However, this is a case such as the one referred to at pp. 11-12 of Beintner, at p. 11: Finally, one or more provisions of a statute may be incorporated by reference into a collective agreement. It has been held that "[w]here such is the case, it is within the jurisdiction of the arbitrator to interpret the statute." Re Toronto Electric Commissioners and CUPE, Local 1 (1973), 2 L.A.C. (2d) 24 (Rayner), as reviewed in Re Nova scotia civil Services commission and Nova scotia Government Employees Assoc. (1980), 24 L.A.C. (2d) 319, 332 (Christie), and cited with approval in Re Public Service Alliance of Canada and Alliance Emplovees Union (1981), 29 L.A.C. (2d) 21 (Fraser) . The danger that concerned the Board in the Beintner case related to a situation : ... where a statute places a positive obligation on one party to a collective agreement and the collective agreement is silent upon the matter... In such case:' ... an arbitrator will decline jurisdiction in order to avoid the spectre of re-writing a collective agreement which served in the first place as the basis for its jurisdiction. 13 In carrying out legitimate government purposes the Employer would have to adhere to the public policy as enunciated in the Code,in particular section 4. The policy inherent in that section must be applied in ascertaining whether an employer has behaved in good faith. If the real allegation against the Employer involves a a breach of the public policy inherent in s. 4 of the Code, and if the Employer is found to have discriminated against the Grievor or harassed him for any of the prohibited grounds contained in section 4, this will have a considerable bearing on finding a lack of good faith on its part in exercising its management rights under s. 18(1) (b) of the Act with respect to affording training and development opportunities to employees. In dealing with the impact of the Code on the administration of the collective agreement, arbitrator Hinnegan, in Re Glenqarrv Industries (1989) 3 L.A.C. (4th) 326, referred to the statement in Re Chrysler Canada Limited (1986), 23 L.A.C. (3d) 366 (Kennedy) at p. 373: In determining the collective agreement obligations of these parties, it is clear that reference must be made to statutes of general application governing the matters being considered. In the Chrysler and Glenqarry cases, the provisions of the Code were considered. Reference was made to Re stelco Wire (1986), 25 L.A.C. (3d) 427 (Brent), being another case where it was found, at p. 440, that the jurisdiction of a board of arbitration is not to deal with alleged violations of the Code but to interpret the 14 collective agreement taking into account all relevant legislation, including the Code. While it is not within the jurisdiction of a board of arbitration to enforce the provisions of the Code, it cannot ignore the general law of the land where there is conflict between the collective agreement provisions and the relevant statutory provisions. So, where the Code precludes the application of a specific article in a collective agreement to a grievor in particular circumstances, the application of that article would be declared invalid. (See, Glenqarry, at p. 332.) In finding that we have jurisdiction .to adjudicate on the allegations of the Grievorthat the provisions of Code may preclude the application of the rights granted to the Employer with respect to training and development under s. 18(1) (b) of the Act, we have taken into consideration not only the oral argument presented by counsel at the hearing, but, as well, the written argument submitted by them. B. The objection to arbitrability based on the submission that the Employer has unfettered discretion with respect to the subjects of traininq and development and that there is no statutory provision that alters, or any provision in the collective aqreement that can alter the extent of its discretion The second objection to the arbitrability of the above 15 grievance is the same as was raised in Flinn et al, 22/88 (R.L. Kennedy). At p. 5 of the Flinn case, the Board stated: ... The argument of counsel for the Employer in support of the preliminary objection was that the grievance did not raise any matter covered in the collective agreement; it did not raise any matter pursuant to which a right of grievance was given to an employee pursuant to section 18(2) of The Crown Employees' Collective Barqaininq Act, R.S.O. 1980, c. 108 [the "Act"] and the only issue that it did appear to raise was one relating to training and development, which by the specific provisions of section 18(1) (b), was an exclusive function of the Employer and could not be the subject of collective bargaining or come within the juriSdiction of the GFievance Settlement Board. There was no suggestion in the Flinn case that the Employer had acted in bad faith, and the Board did not find any evidence in that regard. Nor did the Board find that the action of the Employer complained about raised any matter to which a right of grievance was. provided under s. 18 (2) of the the Act". The relevant portions of s. 18(1) of the Act are as follows: 18 ( 1) Every collective agreement shall be deemed to provide that it is the exclusive function of the employer to manage, which function, without limiting the generality of the foregoing, includes the right to determine (b) training and development ... and such matters will not be the subject of collective bargining nor come within the jurisdiction of a board. 16 In the Flinn case, at p. 6, the Board noted that: II ... It is clear that th~ sole issue between the parties is that the Grievors have not been permitted to take a specific training course, and the only relief requested is that they be allowed to take that course." Although the settlement desired in grievance 543{90 refers to a number of matters, it is essentially a request that the Grievor be allowed to take the course referred to in the statement of grievance and be given development opportunities such as the one referred to in the particulars. In the Flinn case, at pp. 6-7, the Board stated that: We cannot conceive of any issue that is more clearly and exclusively an issue of training and development, which by reason of specific provisions of s. 18(1) cannot come within our jurisdiction. If authority were needed, reference can be made to OPSEU Union Grievance 672/84 (Palmer) and Brick and Roth 244/82 (Roberts). Counsel for the Employer also relied on the last mentioned case (Brick and Roth) at p. 2.: The issue raised in the preliminary objection of the Employer was whether the Affirmative Action Program of the Employer, as applied in the Property Agent Training Program of the Central Region of the Ministry of Transportation and Communications in late 1981 and early 1982, constituted an exercise of the Employer's exclusive right to determine training and development or a" matter of promotion subject to the terms of Article 4.3 of the collective agreement. We find that it was a matter of training and development falling within the 17 exclusive management right of the Employer under section 18(1) (b) of the Crown Employees' Collective Bargaining Act. Accordingly this Board lacks jurisdiction to hear the grievances. What counsel for the Union wished us to do was to find that even if the Board had no jurisdiction to adjudicate a grievance which challenged management's rights with respect to training and development under s.18(1) (b) of the Act, we might do so where the rights of employees found in the articles of the collective agreement, such as art. 4.3, may be adversely affected by the exercise by management of a right created by s. 18(1) of the Act. In the Brick and Roth case, the Board specifically found (at p.14) no evidence of bad faith on the part of the Employer in designating training opportunities. Nor, in the circumstances, was it possible to treat the actions of the Employer as amounting to an exercise of article 4.3 rights, a violation of which would be arbitrable. (pp.2 and 14.) Counsel for the Grievor also relied on Reitsma, 93/89 (McCamus), where the majority of the Board stated, at pp. 13-15: The Employer has further argued, in support of its preliminary objection, that the Board lacks jurisdiction to deal with the grievance as argued at this stage by the Union on the basis that it touches upon a question of reorganization, this being an area of discretion secured to the Employer under section 18(1) (a) of the Crown Employees Collective Barqaining 18 Act. ... The Employer submits that this legislation has the effect of prohibiting this Board from assuming jurisdiction to investigate the Employer's reasons for reorganizing the work place and reassigning work. While we are persuaded that this is an area of management discretion which is normally beyond the purview of review in proceedings of this kind, we note that it is well established in the arbitral jurisprudence that "there is a general arbitral presumption that the right to reorganize the work force must not be carried out in bad faith, arbitrarily, or discriminatorily" (See Brown and Beatty, Canadian Labour Arbitration, 3rd ed., 1988p. 5-25. section 18(1) (a) of the Act, by stipulating that a provision concerning management rights in this and in other areas shall be deemed to be included in every collective agreement covered by the statute, does not appear to preclude the application of jurisprudence of this kind. Indeed, it would be surprising if the intention of the legislature was to exclude review on such grounds. Accordingly, one would wish to find explicit language in the statute to that effect in order to reach such a conclusion. For purposes of dealing with this preliminary objection, of course, it must be assumed that there is merit in the allegations of bad faith made by the Union. If, indeed, it were the case that an alleged re~rganization were undertaken not for legitimate reasons but for the very purpose of denying an individual recall rights otherwise secured to an employee by Article 3.20.1 of the Collective Agreement, we are prepared to assume that this would be sufficient evidence of bad faith that it would confer jurisdiction on this Board to' consider the grievance in question. The above statements are equally applicable to the case before us to the extent that they relate to the subject of training and developement. If the Employer was denying the Grievor certain training and development opportunities for the purpose of making it difficult for him to compete for promotions under art. 4.3 of the collective agreement, this.would indicate that the exercise of management's authority was not being carried 19 out in good faith. We will have more to say about the meaning of good faith in the context of this case and the ones to be referred to. In the Reitsma case, the grievor was a seasonal member of the unclassified staff who had worked for a number of years as a Program Technician (Resource Technician 3) at the G. Howard Ferguson Forest station for the Ministry of Natural Resources. During the 1988 work season, this position was held by the grievor and another employee. As a result of a reorganization of the work force at the station in 1988, the Program Technician position was eliminated and replaced by a new seasonal position at a lower classification level. The employer determined that only one seasonal employee was required for the new seasonal position and the other employee was appointed to the position. The grievor filed a grievance: I grieve violation of, but not limited to Article 3.20.1 of the Collective Agreement in that I was not recalled to my former position. Paragraph 3.20.1 provides: Seasonal employees who have completed their probationary period shall be offered employment in their former positions in the following season on the basis of seniority. The union alleged that the grievor had greater 20 seniority than the inc~mbent and it was alleged that the new position was, in reality, the former position. Counsel for the Grievor, in the case before us, also argued that the Employer, in failing to afford the Grievor the training opportunities referred to, had interfered with his rights to promotion as provided for in ar~icle 4.3 of the collective agreement: 4.3 In filling a vacancy, the Employer shall give primary 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. It was argued that when the Employer, in bad faith, does not furnish an employee with training and development opportunities, the employee's rights under Article 4.3, are undermined where the employee would ,be put at a disadvantage in applying for a posted position. We also understood counsel for the Grievor to have submitted that the good faith obligations of management owed to the Grievor in connection with his art. 4.3 rights were greater than those to which he was otherwise entitled in the absence of consideration being given to that article. Counsel for the Grievor also relied on Blaine Warden, 1152/87 (Dissanayake). In that case, counsel for the employer argued that the grievance was not arbitrable because it did not 21 allege the breach of any provision of the collective agreement or the Act, as would give the Board jurisdiction to entertain it: He submitted that the grievance is an attempt to challenge the employer's conduct relating to staff complement and job assignment which pursuant to section 18(1) of the Act are clearly exclusive management rights which are not subject to collective bargaining or to the jurisdiction of this board (at p. 1). Counsel for the grievor in the Warden case argued that the grievance,in that case, was based on Article 18.1 of the collective agreement which, in part, states that: "The Employer shall continue to make reasonable provisions for the safety and health of its employees during the hours of their employment." The Board's ruling on the preliminary objection, at pp. 2-3, was The Board agrees with counsel for the grievor that it is not essential that the grievance refer specifically to a particular article in the collective agreement or provision in the Act before it becomes arbitrable. Nor are we unduly concerned that the grievance did not use the phrase "health and safety" and did not articulate a health and safety issue precisely. In that we recognize that grievances are not written necessarily by legally trained persons, the Board will not refuse to accept a grievance merely because of technical defaults or imprecise language. All that is required is that the true nature of the grievance must be communicated to the employer. The Board does not agree with the employer that in all cases the employer has an unfettered right to exercise its management rights in any manner it sees fit. These management rights may be restricted expressly or impliedly by other 22 provisions of the agreement. Specifically, we find that the employer may not exercise a management right in such a manner as would put at risk the employees' health and safety, because that would be contrary to article 18.1 If the thrust of a grievance is a health and safety issue under article 18-.1, then in our respectful view that grievance is arbitrable despite the fact that the resolution of that grievance may necessitate an inquiry relating to the employer's exercise of management rights. Counsel for the Union also relied on Welsh, 122/89 (Watters). In that case (at pp. 15-16), the Board approved of the reasoning in the Warden case. The Board, in Welsh, also referred to Van Der Akker,2542/87 (Fisher). The following comments were made in the Welsh case concerning the Van Der Akker case (at pp. 16-18): In Van Der Akker, the work location of the grievor was changed without notice as a result of which he became ill. The .grievor alleged that the change in work assignment was a form of harassment and claimed compensation for' the shift that he missed due to his illness. The Board sustained a preliminary objection brought by the Employer and ruled that it lacked the requisite jurisdiction to entertain the grievance. In so doing, it adopted the following statement of law contained in Tsianq, 352/81 (Jolliffe): We have not been referred to any language therein which would require the employer to assign to a grievor a "fair share" of the word processing work assigned to incumbents of the position described in Exhibits #3 and #4 nor do we find any provision to that effect anywhere in the Agreement. Indeed it is unlikely or at least, doubtful that the parties could legally agree to such a requirement. The Act specifically reserves to the employer's certain exclusive rights set out in sub-section 1 of section 18 of the Crown Employees Collective 23 Barqaininq Act. ... In assigning to Ms. Tsiang less word processing than what is assigned to others, the employer, in our view, is exercising the function of "organization, assignment ... work methods and procedures, kinds and locations of equipment ... training and development" referred to in section 18(1). How these things are done may often be regarded by some as arbitrary, unfair or inequitable, but they are in law and in practice part of a management function. The Board found that the content of work is also an exclusive management function insofar as it properly formed part of the job description of the position. It fu~ther concluded that an allegation of harassment could not itself form the basis of a grievance unless there was also specific violation of the Collective Agreement upon which a grievance was based. There is no reference in Van Der Akker to article 18.1 of the collective agreement. We therefore assume that the Union did not make a claim similar to the one advanced in this case. The question was therefore decided on an interpretation of the management rights clause without reference to health and safety. In this respect, that grievance is distinguishable from the one presently being considered. The Board does agree, however, that the approach there taken to harassment may also be applied to discrimination. That is, discrimination cannot form the basis of a grievance unless a specific violation of the collective agreement is established. As stated above, the Board has not been able to find that this grievor was discriminated against. It is therefore unnecessary to address the second issue as to whether such alleged discrimination had adverse health and safety consequences which were caught by article 18.1. . Lastly, in Alaksa,[l130, 1136, 1137/84 (Brent), the Board was unable to find a causal relationship between the shift schedule and certain physical symptoms exhibited by the grievors. In this case, we are prepared to accept that a causal relationship existed between the reassignment and the stress experienced by the grievor. The medical evidence presented is supportive of such a relationship. The symptoms alone, however, cannot serve as the foundation for the remedy claimed as, they flow, in our assessment, from a valid exercise of management's rights. 24 Grievance 543/90 does not directly deal with an alleged violation of a provision of the Collective Agreement. What the grievance alleges, in essence, is that the Employer has' acted in bad faith by discriminating against him in carrying out its exclusive functions under section 18(1) (b) rel~ting to "training and development." Counsel for the Grievor also argued that, as in the Reitsma case (above), the Grievor, in this case, by having been the subject of a bad faith decision to deny him training and development opportunities, based on discrimination because he was a francophone, was denied a right to be fairly considered for promotion under art. 4.3 of the Collective Agreement. In Grievance 541/90; the Grievor takes the position, in part, that the employer in harassing him by failing to send him on the training and development oportunities referred to, has violated the health and safety provisions of the collective agreement (s.18.1). In this case, if the Grievor is successful in establishing that the Employer was pursuing some other goal under the guise of exercising an exclusive management function, then it could not be said to be exercising the function in good faith. While management may exercise the exclusive rights granted to it under section 18(1) of the Act with a good deal of 25 impunity, they must be exercised, at least, in good faith. Given the nature of the allegations contained in the statement of grievance and particulars, if they are established, it would go a long way to proving a lack of good faith. Because of the submissions made by counsel for the Union, arguing that the limitations imposed on the Board's jurisdiction by s. 18(1) do not affect the application in this case of the jurisprudence in the private sector relating to the obligations imposed on management in administering the collective agreement, it is necessary to review that jurisprudence in the light of certain cases decided by the Board and by the courts as they relate to the jurisdiction of the Board. In re Metropolitan TO!Onto Board of Commissioners of Police and Toronto Metropolitan Police Association et al (1981), 330.R. (2d) 476 (C.A.), Houlden J.A., sta~ed, at p. 479, that the lengthy and detailed nature of the collective agreement was a factor in causing the court to conclude that there was "no necessity in [that] case to imply a term that the management rights clause [would] be applied fairly and without discrimination." The Court stated that within the exclusive authority of the management rights clause management may act "unfairly and discriminatively." (Ibid.) Not only may the employer behave unfairly and discriminatively, but the Court of Appeal also reinforced its opinion by stating that the board of 26 arbitration had "no jurisdiction to deal with the dispute because of an alleged and improper exercise of management rights" (Ibid.). It followed, of necessity, that: "... when the arbitrator determined that there was no provision in the collective agreement that governed the taking of inventory and the distribution of overtime [being the work in dispute] she should have ruled that she had no jurisdiction to deal with the dispute because of an alleged improper exercise of management rights." (Ibid). It is of significance that when the matter was remitted back to the arbitrator, the issue was whether the action of the Board of Commissioner of Police was disciplinary in nature rather than a good faith exercise of'a management right; the position of the Board of Commissioners of Police being that the denial of overtime was not a matter of discipline. The arbitrator, in an unreported decision, found that the true nature of the denial of overtime was discipiinary, and it was acknowledged by the Board of Commissioners of Police tha~ if this were the case, there was no just cause for having imposed it. This is an example of the purported exercise of a right under a management rights clause being a subterfuge. The real reason for the act had nothing to do with business efficacy. In such case, the act was not engaged in bona fide. In an unreported case decided by the ontario Divisional 27 Court on December 3, 1982, Her Majesty the Queen in Riqht of Ontario as Represented by the Minister of Health and Ontario Public Service Employee Service Union, G.R. Lenehan and the Grievance Settlement Board, the Board, whose decision was being reviewed, after having decided that there was no provision in the collective agreement which governed the matter in issue, nevertheless held that: ... obviously the employer in administering the collective agreement is not entitled to benefit one employee over the other on the basis that the former may give evidence on behalf of the employer while the latter will give evidence on his own behalf. In the result the grievance succeeds on the basis of the fairness argument advanced by the grievor. The court held that the case failed to be decided under the principles enunciated in the Metro Police case and quashed the award. It is significant, however, that the court stated: "It should be noted that there was no evidence of bad faith in this case, which may have placed things in a different light." If the decision was not an honest one, in the sense that it did not represent a genuine (even if misguided) exercise of an exclusive management function, then it would not have been exercised under the authority of the management rights clause. In OPSEU (Lenehan),the issue not being one that was subject to the grievance procedure, the court quashed the award because of the Board's having exceeded its jurisdiction. 28 The most cited case on the subject of "fairness" in the administration of collective agreements since Metro Police is Re council of printinq Industries of Canada and Toronto printinq Pressmen and Assistants' Union No. 10 et al (1983), 42 O.R. (2d) 404 (C.A.). In the C.P.I. case, the Court of Appeal held that the provisions of art. 22 of the collective agreement (which dealt with the permanent classification of certain employees by the employer), being outside of the absolute restrictions of the management rights clause, should be interpreted by employing certain conventional rules of contract interpretation. It was held that the articles, should be read along with others in the agreement, and that an attempt should be made to harmonize competing clauses. (Ibid. at 411.) In the absence of a clear right to exercise unfettered discretion as might, according to Metro Police, be granted by a properly worded management rights clause, it could be argued that to give practical and business efficacy to the agreement, the exercise o~ a right by management ought to accommodate certain employee and union rights contained in other provisions of the collective agreement. Counsel for the Grievor relied on the principles enunciated in the C.P.I. case as being applcable to the facts of the case before us, notwithstanding the language of s. 18(1) of the Act. As noted above, the objection to the arbitrability of 29 grievance 543/90 relates to the Grievor's not being given a fair opportunity to go on training courses and being denied an assignment to help train staff at the Maple office in January of 1990. Part of the facts related to grievance 543/90 are involved in grievance 541/90. The difference in grievance 541/90 is that there is an alleged violation of Article 18.1 of the Collective Agreement. Counsel for the Grievor relied on the case of re Crown in Riqht of ontario (Ministry of Correctional Services) and ontario Public Service Employees' Union (1986), 27 L.A.C. (3d) 233 (Roberts). That case concerned the application of article 18.1 of the collective agreement, although it is there referred to as article 18.01. At pp. 237-8 of the latter case, the Board stated: The law relating to the application of art. 18.01 of the collective agreement to health and safety issues was set forth by the board in two awards: Re Gonneau and Ministry of Attorney-General (1982), G.S.B. No. 227/81 (Teplitsky), upheld by the ontario Divisional Court [unreported] in March, 1983; and Re OPSEU (Union Grievance) and Ministry of Correctional Services (1984), G.S.B. No. 69/84 (Samuels). In Gonneau/ the board concluded that art. 18.01 was more than a mere declaration of intention, that it "imposes an obligation on the employer", supra, at p. 6. In the Samuels award, the nature of this obligation was expressed as follows at pp. 6-7: Article 18.01 speaks to "reasonable provisions" [emphasis added] for the safety and health of the employees. And this is echoed in s. 14(2) (g) of the Occupational Health and Safety Act, R.S.O. 1980, c. 321, which imposes a duty on an employer to "take every precaution reasonable in the 30 , circumstances for the protection of a worker" [emphasis added]. There is no obligation to guarantee an employee's safety against every possible risk, no matter how remote the possibility that it will occur. The collective agreement and the legislation contemplate . "reasonable" precaution ... without deciding the point, it is arguable that some of the acts of harassment alleged to have been engaged in or permitted by management could or did amount to a breach of the employer's responsibilities under article 18.1. without finding that the allegations contained in paragraph '4 at page 3 of the particulars of harassment with respect to Grievance 541/90 amount to harassment, if it is established that they do, the Grievor should have an opportunity to establish that they led to health problems or that they may reasonably be seen to be capable of , leading to health problems. For the reasons set out below, the Union will have to establish that the Employer, in purporting to exercise its exclusive functions with respect to training and development pursuant to s. 18(1), did so in bad faith. management rights in collectiv~ agreements. In the Canadian Union of Public Employees. Metropolitan Toronto civic Employees Union, Local 43 and The Municipality of Metropolitan Toronto (1990), 74 O.R. 239, the court was dealing with an appeal by the union from a decision of the Divisional Court which allowed an application 31 for judicial review and quashed the majority award of the board of arbitration. This case was not brought to our attention or argued at the hearing. Because of the position taken by counsel for the Union, when the Metro Toronto case came to our attention after the hearing (when it was reported), we requested counsel to furnish us with written submissions as to its impact, if any, on the case before us. We have considered the written submissions of counsel in arriving at our decision. In its award in the Metro Toronto case, the board ruled that the management rights clause in the relevant agreement did not preclude it from considering a number of grievances challenging a unilaterally imposed employer rule. Upon application for judicial review of the award by the employer, the Divisional Court quashed the board's award on the grounds that it was patently unreasonable. The Court of Appeal (at p. 242) had to deal with two issues concerning whether the board fell into reviewable error in holding that: (1) the grievances in that case were arbitrable in the absence of actual discipline; and ( 2 ) the employer was required to act reasonably in promulgating rules with disciplinary consequences. 32 In the case before us, the position taken on behalf of the Employer was that the provisions of section 18(1) of the Act vested in the Employer an unqualified right to decide which employees received training and development, as that exclusive function could in no way be cut down by any provision in the collective agreement, and there was no statutory provision which had to be accomodated by it. That is, the parties could not negotiate with respect to the subject: in this case, training and development. If they did, their agreement could have no effect. In the Metro Toronto case, the effect of the management rights provision was dealt with, commencing at page 255 of the reasons for judgment, under the heading "Management's Duty to Make 'Reasonable' Rules and the Finding that June 10, 1982, was Unreasonable." Counsel for the employer in Metro Toronto (at p. 255) disputed the authority of a board of arbitration to: "infer from the collective agreement that management had a duty to act 'reasonably' when exercising its 'uncontrolled discretion' under article 3.01(iii) 'generally to manage ... and without restricting the generality of the foregoing, to select, install and require the operation of any equipment, plant and machinery'." In the reasons for judgement of the Court of Appeal (at p.255) it is noted that the Divisional Court did not directly comment on the issue of management rights in holding that the 33 c board had interpreted the collective agreement in a "patently unreasonable" manner. At page 256 of the Metro Toronto case, the court noted the union's submission that the reasonableness of a rule promulgated under the authority of the management rights clause can be reviewed by a board of arbitration where the rule impacts on rights of employees under the collective agreement; in that case, whether the rule had disciplinary consequences (where the collective agreement provided that discipline must be for reasonable cause). Counsel for the Union takes the same position in the case before us. In its reasons for judgement, the Court of Appeal reviewed the Metro Toronto Police and CPI cases and concluded, at pp. 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. At page 257 of the Metro Toronto case, the Court of Appeal noted that the management rights clause in the relevant agreement specifically obliged the employer to exercise its discretion under that clause in a manner not "inconsistent with the provisions of this agreement.1I It then quoted from the award 34 of the board in that case: Management cannot use its powers under the management rights clause to issue directives, rules, or orders which undermine the reasonable cause provision. Even in the absence of Article 3.02 it is a fundamental principle of interpretation that the collective agreement ought to be read as a whole, and that one provision ought not to be read in a way which negates another. The presence of Article 3.02 ... puts the point beyond doubt. The Employer cannot, by exercising its management functions, issue unreasonable rules. and then discipline employees for failure to follow them. Such discipline would simply by without reasonable cause. To permit such action would be to invite subversion of the reasonable cause clause. It is significant that the management rights provision in the collective agreement in Metro Police, CPI and Metro Toronto were essentially the same. Section 18(1) of the Act, being a statutorily mandated management rights clause incorporated in every collective agreement, is substantially different. Does the language of s. 18(1) of the Act prevent the Board from implying a term imposing on management some aspect of fairness in the administration of its powers, beyond good faith, with respect to training and development? In Metro Police, Houlden J.A., held, at p. 479, that no term need be implied that management rights would: "be applied fairly and without discrimination." Immediately before arriving at this conclusion, Houlden J.A., IImade allowance for the case in which powers conferred on management by a management 35 rights clause 'are ... circumscribed by express provisions of the collective agreement. '" (Referred to in Metro Toronto at p. 257) What this comment means is elaborated in the Metro Toronto case at p. 257: It would seem that this was exactly the loophole used by this court in Re council of printinq Industries, supra, to find a duty to act reasonably. The arbitrator's use of Article 3.02 and the "reasonable cause for discipline" provision in Article 3.01(ii) is of a similar character. In neither of these cases was the provision relied on entirely explicit. However, it does not seem patently unreasonable to view the collective agreement in a holistic manner, where even management rights may be circumscribed in order to avoid negating or unduly limiting the scope of other provisions. (Emphasis in the original. ) Thus, the significant fact required to place a limitation on the unfettered exercise of a management right is the existence of a provision in the collective agreement which would either be negated or unduly limited by a particular application of such right. As noted above, if it could be demonstrated that the Employer had discriminated against the Grievor in denying him training and development opportunities with a view to undermining his advancement opportunities under article 4, then its actions could not be said to have been carried out in good faith, for genuine government purposes. There is nothing in the collective agreement that requires the Employer to consider the advancement 36 opportunities of employees. However,it cannot use its management rights under s.18(1) of the Act in a way which would amount to a deliberate attempt to interfere with an employee's right to compete for a promotion. The Employer cannot deliberately tilt the field with a view to preferring one employee over another. However, where in good faith and for genuine government purposes an employee is denied a training or development opportunity, where the denial is not founded on a deliberate attempt to undermine the employee's opportunities for promotion, the decision will not be interfered with. Counsel for the Employer objected to our considering article 4 of the collective agreement, inasmuch as specific reference to it was apparently not made until the hearing. An examination of grievance 543/90 discloses that the Employer was alerted to the fact that the Grievor was complaining about the impact of its failure to grant him the training and development opportunities referred to on his opportunities for promotion. (Cf. Warden, above.) In Re st. Lawrence Colleqe and O.P.S.E.U. (1987), L.A.C. (3d) 322 (Brent), the majority of the board, at pp. 328-9, indicated the'standard of review that it regarded as being applicable, in that case involving the exercise of management's right to dismiss a probationary employee: 37 Both parties agreed that the Divisional Court of the Supreme Court of ontario set out a standard of review in the release of probationary employees in reviewing the decision in Re Municipality of Metropolitan Toronto and C.U.P.E., Loc. 43 (1980), 26 L.A.C. (2d) 320 (Simmons). The Divisional Court decision is not reported [summarized 9 A.C.W.S. (2d) 347] but it is cited at length in Re Municipality of Metropolitan Toronto and C.U.P.E.. Loc. 79 (1984), 18 L.A.C. (3d) 52 (O'Shea) at pp. 55-6. That is the source of the quotation which appears in both the Alqonquin Colleqe, supra, and Cambrian Colleqe. supra, decisions. In order to come to grips with the issue in this case, we propose to set out in some length the Divisional Court decision as found at p. 56 of Metro Toronto and C.ll.P.E.. Local 79, supra: In our opinion, since the municipality had the right under the agreement to discharge a probationary employee without reasonable cause, there was an error of law on the face of the record when the board decided that the grievance was established because the employer failed to establish the grievor's performanc~ was unsatisfactory. By taking this course the board put the grievor into the same position as that of an employee who had completed the probationary period and in so doing erred. A distinction must be drawn between the scope of the review of the board in the case of the discharge of an employee who has acquired seniority and in the case of the discharge of a probationary employee. In the case of an employee who has acquired seniority, the collective agreement allows the board to look at the reasonableness of the cause of the discharge. In the case of the probationary employee, for the board to look at the reasonableness of the cause of the discharge which it has done here, is to put the probationer into the same position as that of an employee who had acquired seniority and thereby ignored the provisions of art. 3.01 and art. 3.03 ... The municip'ality is not required to justify the dismissal by affirmatively establishing reasonable or any cause. A probationary employee would be entitled to succeed on a 38 grievance in relation to discharge only if he were able to affirmatively establish that the action of the employer was taken in bad faith in the sense that the decision was motivated by unlawful considerations or resulted from management actions which precluded the probationary employee from doing his best. The respondent urged the court to imply a term that the management rights' clause would be applied .fairly and reasonably, notwithstanding the discretion granted to the municipality. It is significant that in this agreement the right to discharge a probationary employee has been reserved to the management rights' clause. If such a term were to be implied, it would derogate from the "exclusive right" given to the municipality in relation to this matter. This would be contrary to the intent of the collective agreement ... It is necessary to set out in full the reasoning of the Board in the st. Lawrence, at pp. 329-332, case in order to appreciate why it was not deferred to by the Divisional Court in its unreported decision dated, February 17, 1989 : Before looking at the Seneca Colleqe, supra, decision, it may be of some use in putting the Divisional Court's decision in perspective by looking at the decision which it was reviewing. As noted above, the arbitration board's decision is reported at 26 L.A.C. (2d) 320. At. p. 326 the board said the following: The issue remaining is, what is the standard of review of management's decision to terminate the services of a probationer? While the collective agreement does not make any distinctions between probationers and employees who have acquired seniority, arbitral jurisprudence establishes that the employer need not meet the same standard of just or reasonable cause when dismissing probationers ... It is noted that some 39 arbitrators will not overturn employers' decisions to terminate the probationers' services at will providing there is no element of discrimination present. All that is required is for the employer to establish that the probationer is unsatisfactory. It is therefore clear that the Divisional Court was looking at a case where a board of arbitration had placed the onus on an employer to show that the probationary employee was unsatisfactory. The Divisional Court rejected this standard and held that the standard of review was illegality and obstruction on the part of the employer and that the union bore the onus of establishing that. In Seneca Colleqe. supra, the argument concerned whether a board of arbitration could imply a duty to administer a particular clause of the collective agreement in good faith. At pp. 21-2 of the decision there is a discussion of the decisions in Re Council of printinq Industries of Canada and Toronto Printinq Pressman & Assistants' Union, No. 10 (1983), 149 D.L.R. (3d) 53, 42 O.R. (2d) 104, 83 C.L.L.C. 14,050 (C.A.) [leave to appeal to S.C.C. refused 52 N.R. 308n], and Re Metropolitan Toronto Board of Com'rs of police and Metropolitan Toronto Police Assn. (1981), 124 D.L.R. (3d) 684, 33 O.R. (2d) 476, 81 C.L.L.C. 14, 116 (C.A.) [leave to appeal to S.C.C. refused D.L.R. and O.R. loco cit., 39 N.R. 449n]. At those pages the following passage occurs in the context of that discussion: The Metropolitan Toronto Police case simply says, as we read it, that there is no doctrine that management rights clauses must be administered fairly, while the Council of printinq Industries case says that where, as a matter of contractual interpretation, it is a reasonable interpretation of a collective agreement provision that it requires fair administration, the courts will not interfere. It is the function and obligation of boards of arbitration to inquire, where the issue is raised, whether a particular set of facts establishing bad faith, or the absence of good faith, constitute a breach of a particular clause in the collective agreement. As it happens, it is not here the management rights clause that is asserted to connote a requirement not to act in bad 40 faith, but a provision setting out affirmative obligations upon the employer in respect of its conduct in relation to probationary employees, cl. 8.01(c). While matters of this nature ought not to be decided in the abstract, in the absence of facts, we think it is a reasonable interpretation of this provision that conduct in bad faith intended to subvert the protections given to probationary employees by this clause, could be p breach of the clause. since the grievor has alleged, in her grievance, bad faith in respect of her release on probation, and her counsel has identified, in the course of argument, that the bad faith was in relation to the employer's obligations under cl. 8.01(c), we think that the grievor is entitled to offer her proof of this allegation so that we can assess ... whether or not there has been a breach of that clause. In the very next paragraph, the first full paragraph on p. 23, the following passage occurs: As a matter of contractual interpretation, therefore, we have found that the grievor is entitled ta pursue her grievance to the extent that it alleges bad faith in the administration of her probationary employment, and to the extent that it alleges discrimination. In respect of both of those allegations, the onus is on the grievor to make out her case. The grievor is not entitled to pursue, however, her allegation that her dismissal was not for just cause, and the employer is put to no obligation to demonstrate that it had just or any cause for releasing or dismissing her. We do not consider that the above passages from this case indicate that the board there was enlarging upon the concept of bad faith as set out in the Metropolitan Toronto case, supra, by the Divisional Court. Clearly, one issue before that board was whether the allegation that the dismissal was because of discrimination based on sex and/or creed was arbitrable, and the other was whether the allegation that art. 8.01(c) was breached because, the employer allegedly administered her probationary period in bad faith was arbitrable. The board's comments about "bad 41 faith in the administration of her probationary employment" must be read in the context of the art. 8.01(c) allegations, and the board's finding that if an employer administered that clause in bad faith so as "to subvert the protections given to probationary employees by th[e] clause" such conduct "could be a breach of the clause". Therefore, while not defining bad faith in the context of the test to be used when determining if a probationary employee has been properly dismissed, the board did determine that where there were positive collective agreement obligations intended to benefit the probationary employee, the employer's conduct in bad faith intending to subvert those collective agreement protections could be a breach of the clause, and arbitrable. Hence the comment about "bad faith in the administration of her probationary period" has to be read in the context of the discussion about the ability to imply a duty to act in good faith in art. 8.01(c), which dealt specifically with aspects of the administration of the probationary period. In our view, the test to be applied when determining if a probationary employee was properly dismissed is still that set out by the Divisional Court, that is illegality or obstruction. When the court's decision is read, it is clear that it determined that the board"of arbitration whose decision was before it had erred in law when it decided that an employer must show unsatisfactory performance in order to justify the dismissal of a probationary employee. The court also noted that if a board of arbitration reviewed the "reasonableness II of the cause for dismissal it was placing the probationary employee in the same position as the employee with seniority and therefore exceeding its jurisdiction under the collective agreement. The court also refused to imply a term that the management rights' clause must be interpreted reasonably and fairly in connection with the exercise of discretion to dismiss employees during their probationary period. Accepting then that there is an onus on the union to demonstrate that there was bad faith by the college in the decision to dismiss the grievor, and that bad faith is defined as being "motivated by unlawful considerations" or as having "resulted from management actions which precluded the 42 probationary employee from doing his best", what does the evidence disclose? In the first place, it discloses that on balance, given the evidence before us, the grievor can be said to have been performing satisfactorily without any serious problems with his work. It can also be concluded that, whatever the long~term plans for the department were, they were never communicated either to the grievor or to the chairperson in such a way as to lead them to believe that the grievor did not fit into them until April, 1987, after the grievor's work-load for the next term had been established and after his latest student evaluations had been received. There is no evidence to suggest that there was any reason operating in the dean's mind other than the ones put forward in various conversations, that is, (1) the grievor not fitting into the long-term plans of the department, (2) the grievor being deficient .in formal education, and (3) dissatisfaction with the student evaluations. There is no suggestion that the dismissal was motivated by anti-union animus, by considerations of race, religion, sex, or any other illegal ground of that sort. In its reasons, the court in the st. Lawrence case found that the board had erred in treating the Metro Toronto and C.D.P.E., Loc. 43 case as having been decided on identical facts to those before it: We think the board thereby declined jurisdiction. The Board's jurisdiction was not limited by the Metropolitan decision, which turned very narrowly on its own unique facts, including the specific language of management rights clause 3.03 in the context of that agreement which apparently lacked a code of positive obligations governing the probationary period such as clause 8.01(c) of this agreement. It is clear from Council of printinq Industries (1983) 42 O.R. (2d) 404 that different language in a different agreement read as a whole might properly be interpreted as giving a Board jurisdiction to consider good faith, in a sense 43 broader than that used in Metropolitan Toronto, as the subject of a grievance. Having regard to the language ox this agreement we think this is such a case. As another board said in Seneca Colleqe and OPSEU (Hacker Grievance), 1986 unreported (Swan): at p. 22: It is not here the management rights clause that is asserted to connote a requirement not to act in bad faith, but a provision setting out affirmative obligations upon the Employer in respect of its conduct in relation to probationary employees, clause 8.01(c). Instead of fettering its jurisdiction as it did the Board in this case should have gone on to consider the employer's good faith or lack thereof in discharging its positive obligations in article 8.01(c), a code for the administration of the probationary period which was apparently not before the court in Metropolitan Toronto. Had it not so fettered its jurisdiction the Board would have gone on to decide whether or not it was satisfied in the circumstances of this case that the employer's overall administration of the code governing probationary employees involved the kind of bad faith found by the dissenting union nominee. By applying to this case too narrow a test taken from a case which turned on a very different management rights clause and no code of positive obligations such as clause 8.01(c), and by considering its jurisdiction fettered by that inapplicable test, the Board committed jurisdictional error. Thus the court, in the st. Lawrence case, found that the board had employed a too narrow test of good faith because of the existence of a positive obligation relating to the allegation of bad faith found outside of the management rights clause. The court referred to the "kind of bad faith found by the dissenting 44 union nominee". The court in st. Lawrence referred to two kinds of bad faith as identified by the Board in the Seneca case: case: As it happens, it is not here the management rights clause that is asserted to connote a requirement not to act in bad faith, but a provision setting out affirmative obligations upon the employer in respect of its conduct ... Identifying what actions would constitute bad faith in the administration of a clause in a collective agreement outside of the management rights provision was seen to be something different from identifying what behaviour would constitute bad faith in the administration of a management rights clause. What behaviour will amount to bad faith depends on the facts of each case and will usually not be decided in the abstract. In the dissent of the union nominee in the st. Lawrence case, a number of other matters pertaining to bad faith were relied upon in addition to the decision having been motivated-by "unlawful considerations or [thpt it] resulted from management actions which precluded the probationary employee from doing his best." These additional elements of bad faith were found in relation to the employer's particular breaches of the article relating to probationary employees. It is significant that the examples of bad faith found by the union nominee are specific to 45 the administration of the provision in the agreement relating to probationary employees and are not duties in the abstract. These included (at pp. 9-13): As pointed out in Cambrian Colleqe and OPSEU (File 85k 31), (1986) unreported (G. Brent) it would be difficult, if not impossible, to ~et out a comprehensive catalogue of those considerations which could be called unlawful. I would agree with Arbitrator Brent in that case wherein she found that the "common feature of all of these elements is some action or actively pursued intention on the part of the employer which is inconsistent with the prime purpose of the probationary period, which is to give the employer an opportunity to assess the newly-hired employee in a working environment to see if he/she is really an appropriate candidate for permanent emploYment." Equally so, the probationary period provides the employee an opportunity to demonstrate his ability to do the job. It is the expectation of all parties that if the employee satisfactorily demonstrates his ability to perform the duties of the position, then the emploYment relationship will continue. In this respect, probationary emploYment differs fundamentally from an appointment for a fixed term, such as a sessional or partial load appointment. In an appointment for a fixed term, there is not the same expectation for the continuation of the emploYment relationship. It is precisely this difference which resulted in the grievor rejecting the sessional appointment which the College offered to h~; In assessing the abilities of the employee the employer is required to do so based upon valid work-related criterion and not upon erroneous considerations. Moreover, the employee is entitled to be assessed against the same standard as other new employees. These requirements flow from the nature of the probationary period itself. In addition, the College is required to administer the probationary period in accordance with the provisions of the Collective Agreement. In my view, in considering the question of whether or not the termination of the grievor was made in 46 bad faith, one must address the question of whether the probationary period was administered in good faith. In my view, it has not been. The grievor did not receive progress reports on four month intervals as is required by Article 8.01(c). He was given work assignments that exceeded the maximum allowed under the Collective Agreement. He was charged with the responsibility along with others, of developing courses for a new program. In short, the College placed a number of obstacles in the path of accomplishment, yet despite these, the evidence suggests that the grievor performed more than satisfactorily. The one progress report which he did receive revealed not a single complaint or concern about his performance. If there were complaints, [sic] (and as pointed out above there was no evidence of any), it was the obligation of the College to draw those to the attention of the grievor to give him an opportunity to demonstrate his ability in response to those particular complaints. It would clearly be bad faith on the part of the employer to hide its complaints or concerns about the grievor until too late in the day for the grievor to address such complaints ?r concerns. In my view, the facts of this case more clearly demonstrate bad faith. The College had provided absolutely no reasons for the termination of the grievor, even though required to do so under Article 8.03(c). As no reasons have been provided, one must assume that the College was entirely satisfied with his performance up to and including the date of his termination. The inference must be drawn that the grievor has not been evaluated on his performance or on valid work-related criteria. I would agree with the majority where at page 10 it concludes that "it would appear that he [the grievor] was not judged on his performance ...". The majority also concludes that the grievor's performance was satisfactory. In my view, this alone constitutes sufficient evidence of bad faith. In addition, I would find the different treatment accorded to Mr. Roughton and the grievor, to constitute bad faith. Mr. Roughton and the grievor commenced their full-time employment in the spring of 1986. On the completion of their first semester of teaching, the performance appraisals of the two men were almost identical if anything, the grievor's performance appraisal 47 _/ was slightly better than Mr. Roughton's. Mr. Roughton also t~~tified that his student appraisals in second term were fairly similar to those [of] the grievor. Mr. Roughton's employment with the College was not terminated. In my view, this must lead one to a conclusion that the College has applied a different standard in Mr. Roughton's case than in the grievor's. Finally, and most importantly in my view, the conduct of the College is totally inconsistent with the very concept of a probationary period. The College induced the grievor into its employ upon representations of continued employment if he performed satisfactorily. As pointed out earlier, the very basis of probationary employment carries with it this expectation of continued employment. The grievor worked very hard to meet the expectations of his employer and as the majority points out, it must be concluded that his work was satisfactory. Yet the College terminated his employment without any explanation. Surely such conduct has rendered the entire probationary period a sham. It is also significant that the Divisional Court in st. Lawrence did not find fault with the majority of the board's view of good faith as it related to a case where only the management rights' clause was being considered. The board's reference was (at p. 332): "There is no suggestion that the dismissal was motivated by anti-union animus, by considerations of race, religion, sex, or any other illegal ground of that sort." Nor was there any disagreement with the majority of the board's statement that bad faith would be found where the employer made it impossible for the grievor: "to perform his job or [where} the whole probationary relationship was a sham from the beginning." (Ibid.) 48 So, in the case before us, if the motivation for denying the Grievor the training and development opportunities sought by him involved a desire to make it difficult for him to compete for a posted position pursuant to art. 4; to punish him because he was a francophone; o~ for reasons prohibited by s.4 of the Code, the Employer would be acting in bad faith. While the exclusive power of management to determine which employees receive training and development opportunities is all encompassing, it must be exercised bona fides and not as a subterfuge. In Metro Toronto, one of the issues concerned whether the loophole, recognized in Metro Police and employed by the board with the approval of the court in council of printinq Industries, could be employed where the breach complained of had not yet resulted in the breach of the article relied upon: in that case, the provision that discipline could only be imposed for just cause. That is, the grievance involved the board in hearing a case relating to ~discipline in the abstract." (Metro Toronto, at p.251.) In the case before us, there is a similair issue in that there has not yet been a denial of selection to a posted position as a result of a competition under article 4 of the collective agreement. Is the reasoning of the Court of Appeal in Metro Toronto, in a case involving the "obey now, grieve later" 49 rule, applicable in the case before us? There, the court stated, at pp. 254-5: ... it seems clear that under an "obey now, grieve later II rule, an arbitrator is practically required to take jurisdiction to hear a grievance against a directive, at least in a case where a breach is likely to constitute insubordination and subject the employee to disciplinary action. ... In my respectful opinion the Board, in taking jurisdiction, acted in accordance with both the letter and spirit of the collective agreement ... To decide otherwise would be to invite anarchy in the workplace. (Emphasis in the original.) The court in Metro Toronto, at pp.257-8, also noted the existance of authority: "... that all company rules with disciplinary consequences must be reasonable." In the case before us, it can be seen that an employee, who has been deprived of a training or development opportunity, may be placed at a disadvatage 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. However, the underlying basis for permiting the board to assume jurisdiction on the issue of discipline in Metro Toronto was based on the board's holding (referred to at p. 253 of the Metro Toronto case) that "it would be 'hypocritical, and transparently so, to deny employees the promise of the rule having exposed them to its command. '" In other words, if the purpose of the rule is to avoid insubordination and anarchy in the workplace, the obvious trade-off is that employees in a unionized envoirnment will have the right to grieve rules, the breach of which would 50 likely have led to discipline, even if they continue to obey them. In the case before us, the basis for permitting a grievance with respect to "discipline in the abstract" does not apply to an abstract breach of article 4. There are not the same reasons for hearing the issue ielating tti the denial of training and develoopment as part of a grievance claiming a violation of art. 4 where no competition has been advertised. As in Brick and Roth, above, the primary thrust of the grievance is with respect to the denial of training and development opportunities and not the failure of the Employer to adhere to its responsibilities under art. 4. 3 . Furthermore, in the case before us, there is also the important additional consideration that article 18(1) of the Act is specific in prohibiting collective bargaining with respect to the subject of training and development. In this regard, the court in Metro Toronto referred to ontario v. O.P.S.E.U. (1986), 570.R. (2d) 404 (Div. ct.). That case involved a Crown employee who grieved against "a ministry policy" prohibiting certain political activity by Crown employees. The grievance was based on a breach of the "just cause for discipline" provision in the Act (s.18(2)(c). The ministry policy was based on a statutory prohibition, contained in the Public Service Act, R.S.O. 1980, c.418, as ammended, against the kind of political activity 51 engaged in by the employee. (O.P.S.E.U. at p.408.) At p.251 of the Metro Toronto case, the court indicated its view of the basis for ~he finding in O.P.S.E.U. : ... a closer examination o~ the judgment of White J. [in O.P.S.E.U.] reveals that he was motivated by the fact that the "ministry policy" complaind of merely reflected the Legislature's will, as expressed in the Public Service Act, R.S.O. 1980, c.418, ss.11 to 16. This led White J. to conclude, ... at p. 409 O.R.: what the grievor is really seeking to challenge is the wisdom of the Legislature in enacting the statute and the Grievance Settlement Board is not the appropriate forum in which to engage in that effort. In other words, the Board in the O.P.S.E.U. case had no jurisdiction to hear a grievance based on legislative policy. The result would therefore have been the same whether or not discipline had been meted out. ... In the case before us, the Employer argued that the grievance is inarbitrable because it, too, amounts to an attempt on the part of the Grievor to challenge the "wisdom of the Legislature in enacting [a] statute" which deprives the Grievance Settlement Board of jurisdiction to, deal with grievances involving t~e functions set out in s.18(1) of the Act, which include the subjects of training and development. The Employer's position is that the provisions of s.18(1) of the Act which remove the subjects of training and development from the sphere of permissable bargaining and, it was argued, from the jurisdiction of the Board, amount to a grant to it of the sole and unfettered discretion to decide which employees obtain 52 training and devolopment opportunities. It is significant the the board, in Council of printinq Industries, whose reasoning (at pp. 408-411) was approved of by the court in that case (at pp. 411), in finding an implication that the employer must exercise its power under the relevant article "on a reasonable basis, without bad faith, discrimination or arbitrariness," noted that the article did "not provide that employees are to be permanently classified 'in the sole discretion of management'." (At p.409.) The board also noted (at p. 409) that the management rights clause made "no explicit reference to the employer's right to permanently classify employees, explicitly consigning this right to the unfettered discretion of managemnent." There are certain significant differences between the management rights' provisions in the Metro police, C.P.I. and Metro Toronto cases and the provisions of s. 18(1) of the Act. While it is clear that the provisions of s. 18(1) of the Act are incorporated into every collective agreement, the "management rights" created by s. 18(1) are statutory in nature. In addition, the Act reinforces the nature of the exclusive functions reserved to management by providing:" such matters will not be the subject of collective bargaining nor co~e within the jurisdiction of a board." 53 Counsel for the parties differed in their interpretation of the jurisdictional limitations imposed on the Board by the provisions of s. 18(1) of the Act immediately above quoted. The meaning of the word "board" in s. 18(1) was considered by the Board in Dickie, 314/85 (Palmer). In that case, the Board was dealing with a grievance which alleged the improper denial of a merit increase. The majority of the Board, after setting out the provisions of article 18(1) of the Act, stated at pp. 5-6: Clearly, the foregoing indicates that the "merit system" is something which is an "exclusive function of the employer to manage." Further, the final words of that section appear dispositive of the present matter, i.e., that "such matters will not be the subject of collective bargaining nor come within the jurisdiction of a board." In this regard, reference must had to section 1(1) (c), which clearly indicates that the word "board" covers the present board of arbitration which is established' pursuant to this Act. Obviously, the request of the Union asks us to determine the way in which the Employer has managed the merit system which is established. This, in our opinion is something we cannot do. All the rights the Union has with respect to this system is to have the ability to review "the governing principles" of this plan with the Employer. While it is true that the Grievance Settlement Board is: "a board of arbitration established under this Act," in context, we conclude that in using the word "board" in article 18(1), the intention was to refer to the "board or arbitration" referred to in s. 11(1) of the Act, which is as follows: Upon written notification by the Tribunal, each of the 54 parties shall, within ten days of the notification, appoint to a board of arbitration a member who has indicated his willingness to act and shall each notify in writing the other party and the Tribunal of the name and address of the member so appointed. The Legislture, in linking the words II subject of collective bargaining" with "jurisdiction of a board" was concerned with what matters might be included in a collective agreement, whether arrived at by agreement, or as a result of a decision of a board of arbitration appointed under s.ll(l) of the Act. The Legislature provided, in s. 18(1) of the Act, that the matters there set out were outside the realm of collective bargaining and could not be included in a collective agreement. Where, notwithstanding the statutory prohibition, agreement is reached by the parties pursuant to s. 13(1) of the Act, or the board of arbitration referred to in s. 11(1), pursuant to s. 13(2), s. 18(1) renders such a decision of the parties or the board of arbitration without legal effect. Similairly, any collective agreement arising from such action would be invalid to the extent that it dealt with the prohibited subjects. What the Legislature intended was a prohibition against the parties or a board established under s. 11(1) of the Act dealing with the matters listed in s. 18(1) and, in any event, preventing any agreement or decision of the Board from having any 55 legal effect. Nevertheless, for other reaons, we agree with Professor Palmer's conclusion that the Grievance Settlement Board is precluded from assuming jurisdiction to deal with the matters listed s. 18(1). In precluding collective bargaining with respect to the matters listed in s. 18(1) of the Act, and hence, the valid inclusion in a collectiv~ agreement of provisions dealing with them, the Legislature has gone beyond the kind of management rights' provisions as are found in the Metro Police, C.P.I. and Metro Toronto cases. In the latter cases, the management rights' clauses do not prohibit the parties from agreeing to provisions which would otherwise fall within the exclusive functions reserved to management. The limitations placed on the Board's jurisdiction are reinforced by the provisions of s. 18(2) of the Act which create jurisdiction in the Board to consider three types of grievances which would otherwise be outside its jurisdiction. The application of the jurisprudence found in the private sector cases referred to must take into consideration the statutory restrictions on the jurisdiction of the Board as set out in s.18 of the Act. In O.P.S.E.U. and Anderson et ale v. The Queen in riqht of ontario as represnted by the Ministry of Natural Resources and the Crown Employees Grievance Settlement Board (1990), 750.R. (2d) 212 (Div.ct.), in considering the remedial jurisdiction of 56 the Board in a classification grievance, once it decided that a classification was wrong, the court had to deal with the jurisdiction of the Board in the light of SSe 18(1) and (2) of the Act, as well as SSe 7 and 19(1). At p. 219, the court noted that: It is not necessary to determine whether or not the board erred in its interpretation of the word "board" in s. 18(1). The board based its jurisdictional decision on the content of the management rights clause. That clause in the context of the statutory scheme as a whole including S. 7 and S. 19 [am. 1984, C. 55, s. 214] does impose limits on the jurisdiction of the rights arbitrator in relation to functions reserved by statute exclusively to management and the question is whether the board in the result correctly interpreted those limits. We conclude that our jurisdictional decision can, as well, be based on the content of the management rights clause, in the context of the statutory scheme as a whole, including S. 7 and S. 19. In the Anderson case, the court considered the questions: "Does management's right to classify positions under s. 18(1) (a) and the corresponding restrictions on the board's jurisdiction, require the defeat of the employee's right to grieve classification and the board's duty to effect final settlement of all grievances?" (at p. 221). It was the existence of an employee's statutory right to grieve classification established by s.18(2) (a), along with the Board's statutory duty 57 to effect a final settlement of classification grievances "and the narrow ambit of necessarily incidental board activity around the outer edge of management's protected classification zone," that enabled the court to find -(at p. 223) that the Board "was entitled to review the content of a class standard established by management pursuant to a Berry - type direction from the board and instruct management to alter or amend the standard in order to reflect properly the duties, responsibility, etc. of the grievors." At p. 222, the court stated that: "the jurisdiction contended for does not involve any significant inroad of management's right to classify." The court made this statement in the context of a case where management's exclusive statutory right to classify was required ~o be accommodated by a statutory right granted to an employee to grieve classification. In the case before us, the Act does not contain any provisions requiring such accommodation. Also, even if the word "board" in s. 18(1) of the Act does not include the Grievance Settlement Board, the subject of training and development is still outside of its jurisdiction. If the subject of training and development cannot directly be the subject of collective bargaining, it cannot indirectly insinuate itself into the collective agreement, as can a subject reserved to management in a collective agreement without such a restriction as is found in s. 18(1). If such a restrictive provision is to be ~imited in the scope of its 58 application, there will have to be legislative intervention. Cf. the Manitoba Labour Relations Act, 1987 R.S.M. c. L10, s.80(2). This does not mean that the Employer has carte blanche to do what it wishes under the purported exercise of an exclusive management function with respect to training and development. The greater part of this Decision is concerned with the requirement that the Employer exercise its exclusive functions with respect to training and development bona fide; as that term is explained in this Decision. since Metro police, many words have been used to describe the possible ways of breaching fairness obligations that may be imposed on an employer in administering rights granted under a collective agreement: arbitrary, discriminatory, unfair, bad faith, unreasonable. The board in council of printinq Industries employed a number of the terms associated with fairness. In finding that the interpretation placed on art. 22 by the board in council of printinq Industries was not "patently unreasonable," the court stated, while commenting on the board's deliniation of the fairness requirements imposed on management (at p.411): "The majority concluded, although many words were used, that the mandatory obligation to permanently classify [pursuant to art. 22] must be done in a bona fide fashion." 59 Bona fides may have a broad or narrow meaning depending on the context. See, Manon Schiralian, 914/86 (Roberts), referred ... to in Shaw, 410/88 (Watters), where the Board stated, at p.6: "Reasonableness in this context is a species of good faith." The Shaw case was concerned with a grievance which asked the Board to find that a purported release of a probationary employee under the authority of section 22(5) of the Public Service Act for ostensibly having failed to meet the reqirements of his position amounted to a dismissal without just cause which the Board had jurisdiction to deal with under s.18(2) (c) of the Act. In an earlier case decided by t~e Board, Leslie (1978), 22 L.A.C. (2d) 126 (Adams), at p. 134, the majority of the Board stated: ... this Board is of the opinion that the employer cannot camouflage either the discipline or the termination of an employee for a reason other than the employee's failure to meet the requirements of his position ... by the guise of a 'release' under the Public Service Act. This Board therefore, has jurisdiction to review a contested release to insure that is is what it purports to be. But in the adjudication of such 'a grievance, this board is without jurisdiction to evaluate and weigh the reasons of the employer unless the Collective Agreement provides otherwise. The Board must only be satisfied that the employer, in good faith, released the employee for a failure to meet the requirements of his position. As long as the Board can be satisfied that the employer has made an evaluation of that kind, it has no jurisdiction to review the fairness or correctness of that termination under [what is now s. 18(2) (c) of the Act] . In commenting on the use of the term "unreasonable," in some earlier decisions of the Board dealing with the good faith 60 exercise of the statutory right to "release" a probationary employee, the Board stated, in Shaw, at pp. 5-6: While this term [unreasonable] is utilized in the earlier decisions we do not take it to mean that we can review the merits of the employee's job performance and reinstate him if we find that assessment was "unreasonable" that the employee had not met the job reqirements. Reasonableness in this context is a species of good faith. Whereas the phrase "bad faith" could encompass a release improperly motivated or maliciously intended, "unreasonableness" speaks more to an objective assessment that the release did not flow logically or rationally from the facts. If, for example, there was simply no evidence that a probationary employee had not fulfilled or could not fulfill the job requirements, then no matter how well meanihg were the actions o~ his superiors, the release would have been an unreasonable exercise of authority. The Board in Shaw also dealt with the the fairness requirement that there be a rational relationship between the facts and the release (at p.6). This factor was found to be "nearly synonomous with 'reasonableness'." In holding that (ibid.) the release can be reviewed as a discharge if the employ~r's "assessment th~t a certain set of facts justifies release is 'irrational' on any half-intelligent view of the matter," the Board cautioned (ibid.) that the rational relationship test should not be placed too high, as: It is easy to brand as "irrational" any thought process or decision with which one does not agree. The Deputy Minister 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. 61 That is, the test of good faith, in this context is not one of correctness. Although the Leslie and Shaw cases were concerned with certain rights given to a deputy minister by s. 22(5), of the Public Sevice Act, they have some relevance in the case before us. We, too, are faced with the provisions of a statute which removes the subjects of training and development from collective bargaining between the parties. The requirement that the exercise of the exclusive function of management with respect to training and development be caried out in good faith is the same as the obligation imposed on a deputy minister under s. 22(5) of the Public Service Act, and for the same reasons. In order to be carried out in good faith, an employer must have had a genuine intention to carry out a legitimate government purpose which has the effect of denying an employee a training or development opportunity. As held in the Shaw case,at p.6, if there was simply no evidence as to why a grievor had been denied a training or development opportunity, this would go to the reasonableness aspect of the good faith test referred to in Shaw. If the facts relied upon by an employer in support of 62 its position that it had denied an employee a training and development opportunity for the purpose of achieving a legitimate government objective are "'irrational' on any half-intelligent view of the matter," this would also go to the question of good faith. As was noted in Shaw, in examining the employer's rational, the Board should avoid finding the absence of a rational relationship between the facts and the decision to deny the requested training or development opportunity unless it concludes that, on the facts, no such conclusion could have been reached rationally. As also noted by the Board in Shaw, the rational relationship factor is nearly synonymous with reasonableness. And reasonablene~s, in the conext of the case, is a species of good faith. In the case before us, in outlining the good faith obligations of the Employer, we include the further elements of reasonableness and a rational relationship between the facts leading to the making of the decision and the decision itself. Where the Employer cannot be shown to have denied the Grievor's requests for reasons which are "improperly motivated or maliciously intended," such as his being a francophone; for reasons prohibited by s.4 of the Code; or because of a desire to impose disguised discipline, the Employer will have satisfied the first aspect of the good faith test identified in Shaw. As stated in Shaw (at p.5): "Clearly the bad faith, if found, must be relatively serious." 63 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). If the conclusion arrived at by an employer is one that is reasonably possible based on the last mentioned evidence, then the necessary rational relationship between the facts and the decision will exist. The jurisprudence relating to the tests to be used by the Board in cases involving managerial discretion was recently reviewed in Selzer, 1928/89 (Keller), in a decision dated November 15, 1990. The cases referred to were Da Costa, 570/84, and Kuyntiies, 513/84. Although the test was put somewhat differently in both cases, the Board, in Selzer (at p.5) found that the statements were to the same effect~ In both of the cases referred to, in addition to the requirement of good faith, the Board added the requirements that the decision must not be based on : "discrimination" or "arbitrary" conduct (Da Costa), "discrimination" (Kuyntiies). The statements made by the Board in those cases, make it clear that any additional words used were, in context, related to the subject of good faith as was the case in Shaw. All of the 64 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 impermissable ends based on discrimination or other grounds unrelated to the making of genuine management decions. 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 case before us, it is difficult to view the provisions in s. 18(1) of the Act, which remove the subjects of training and development from collective bargaining as being other than a statutory direction granting unfettered discretion to the Employer in making decisions to grant or withhold training and development opportunities, and, as such, being subject only to the good faith test described above. A grievance, such as the one before us, is to be contrasted with the one which was considered by the court in the O.P.S.E.U. (Anderson) case (above). In the latter case, the Board had to deal with its jurisdiction under s. 18(2) (a) of the Act to adjudicate a grievance that an ~mployee's position had been improperly classified in the light of management's exclusive 65 right under s. 18(1) to dertirmine the classification of positions. The 6ase turned (at pp.213-4): ... on the application of the principle in the Berry case, O.P.S.E.U. v. ontario (Minister rsic.l of Community and Social Services) (1985), 15 O.A.C. 15 (Div.ct.), at p. 20, that the Crown Employees. Grievance Settlement Board in a classification grievance, once it decides that a classification is wrong, has an unrestricted remedial jurisdiction to effect a proper classification. Does that unrestricted remedial jurisdiction in the case of a class standard established by management pursuant to a Berry type direction from the board to create a proper classification, include the power to review the content of the class standard and decide whether it was properly drafted. The court, in the Anderson case, at p. 220, stated the governing principles that must be balanced: (1) The right'of the employee to grieve classication. (2) The duty of the Board to bring about the final and binding settlement of all differences between the parties, and to bring it about fairly, effectively, and efficiently within a reasonable time. (3) The right of management to classify positions and the corresponding restriction's on the Board's jurisdiction. Referring to the first principle, the court stated, ibid. : t , 66 Under the first principle, the right to grieve classification should not be restricted unless the legislature clearly intended the restriction; Where a right to grieve a particular matter is specifically recognized by legislation it ought not to be restricted absent a clear intention on the part of the legislature to do so. OPSEU v. The Oueen (1982), 400.R. (2d) 142 per Callaghan J.at p.145. In the case before us, unlike the one before the Board in Anderson, there is no provision in the Act that specifically restricts the discretion of management in exercising the functions which here are "not to be the subject of collective bargaining." In the Anderson case, the exclusive function of management to classify positions under s. 18(1) (a) of the Act had to accomodate the provisions of s.18(2) (a). In Anderson, the 'court considered (at pp.221-3) whether the exclusive management function with respect to classification under s. 18(1) (a) "and the corresponding restriction on the Board's jurisdiction, require the defeat of the employee's right to grieve classifications [unde~ s. 18(2) (a)] and the Board's duty to effect final settlement of all grievances [under s. 19(1)." At p. 222 the court stated: The statutory restriction on the Board's jurisdiction [under s. 18(1)] must be read subject to the employee's statutory right to grieve classification [under s.18(2) (a)], the . 67 board's statutory duty to effect a final settlement of classification grievances [under s. 19(1)], and the narrow ambit of necessarily incidental Board activity around the outer edge of management's protected classification zone. Here, the Grievor has no statutpry right to grieve because he has been denied a training and development opportunity. He claims that he does have a right under the collective agreement to certain consideration when he applies for a position under art. 4 of the collective agreement, and that any restriction on the Board's jusisdiction to deal with matters , relating to training and development must be read subject to an employee's right to fair consideration under art.4. Because of the statutory limitation imposed by s.18(1), there is no room for the penumbral activity permitted in Anderson as might arise through the operation of the statu~ory rights contained in s. 18(2). Here, the right to raise the subjects of training and development by way of a grievance has been restricted by means of a clear indication on the part of the Legislature. Cf. Metro Toronto case, at p.250. The effect of the statutory limitation placed on the Board's jurisdiction differentiates this case from council of printinq Industries amd Metro Toronto. In rejecting the preliminary objections to our jurisdiction, we have found tha~ the issue of good faith in the exercise of the Employer's discretion as it relates to the subjects of training and development opportunities, as explained '\ 68 -above, are properly before the Board, and this includes the question of whether the Employer, in refusing the Grievor's requests, did so in violation ot the provisions of s. 4 of the Code. It is interesting to note that the majority of the board in ~hc H~j;;~o Toro.Il~o c::~"c relied on thl:ee IU~jVL YLULlllUti .cUL" findihg that the rule imposed by the employer was unreasonable: 1. the absence of any consultation with those whose h,=a.1Ul cm~ Ba.cety were ~lK.e~y ~o De atrec't.8a oy ~ne directIve; 2. the absence of any employer interest sufficient to justify the change in policy; and 3. the testimony of several drivers/attendants to the e.f'f'o<:ot that t.h~y .cl;lll. L.he policy woula De Dotn counterproductive and dangerous. Even though the Metro Toronto case relied on jurisprudence (C.P.I.) whioh does not apply to a case governed by s. 18(1) of the Act, we are uncertain as to whether the test to be applied necessarily produces a different result: 1. Ground one in the Meto Toronto case can be seen to be another manifestation of bad taith. In the case before us, if the Employer is shown to have refused to discuss its reasons tor denying the Grievor the training and develupment opportunities requested by him, this might, along with other evidence, represent , . " 6') a manifestation of unreasonable behaviour which could disclosed a laek of 900d faith in the exercise of its discretion. 2. Ground two, referred to in Metro ToroD~O, can also be seen to be a manifestation of bad faith. If the rule was changed without a demonstration of any rational rea con eo do co, . ei~nifican~ quo8~ion would arig~ ag to the qenuineness of the employers exercise of the " management right, and hence as to its good faith. 3. similairly, where the rule appears to have no %:'CLthmdll 1.II::hlt.iol'llilhip to the purpo1.Ate<1 exercise ot the: right relied upon, it would not have been exercised in qood faith, in the sense that it was unreasonable: unreasonQbleness in ~hia context bQing ~ cpooioc of go'od faith as explained in the. Shaw case,a.bove). See ground three, referred to in Metro Toron~9. We, too, have used many words in arriving at the conclusion that the Employer must act in good faith in exercising its rights with respect to training and dAVQlonmAnt as provided tor in s. 18(1) ot the~. (ct. c~unci1 o~ printing Indu~Lr~e$, at p. 411.) It must be remembered, however, that words, as is the \nA~~, ~n~ ~A~~~ n~ ~~~~~h. A~~ ~~n~i~iv~ ~n ~h~ ~nn~~Y~ whp-rA they a~e tound. A word may, tor example, function as a noun, verb .03/08{91 15:06 tr416 364 4814 WINKLE~ FILION ~~~ CORNISH ~005 t ,.. 70 or modifier. The meaning of words is also affected hy the context in wh;nh t-h,::ay lIlIrea -f'nnnl"'t. ~n. t-hc t-~'M'n "(7nnn -f'lllIit-h" h.o: "1"1 Unnea_ size-fits-all" meaning. Its meaning is affected by such factors as the nature of: (1) the manaqement rights provision involved; \.c::J\,.U. n~""UL"e U1. l;.ne 5pe\,;,LJ;,Lc mani:lgemenl;. L"J.c:JIll;.\SJ .LnVU.Lvec,; ~ne applicable statute(s)j ana (3) other relevant provisions in the collective agreement, and the general understanding of parties engaged in a collective bargining relationship. eel'. Metro Toronto, at p. 259). In cUlvl.h~.L ....a.2:)~, lllvulv.l.uy a \ll.c,[.;::;Lent ~vlle~tivc &9reement. a~~r~r~n~ ~Q~QVQn~ ~~a~u~Q(~Jr Qtc_, a ~inain9 that an employer is required to administer a particular manaoemene riQht in good faith may result in a meaning of that term, in its particular context, that differs from the one found here. Many of the problems experienced by employers and unions, in agreeing to the proper standard to be applied to the actions of manaqement in ~hG Q~mini~t.ation oC manQgem~nt .i9ht~ ~1au~e~1 Q.i~e ~.Qm thGi. failure to appreciate the limitations involved in applying, as 9cnera1 ruleo, ~hc pronounoemcntG ~Qdc in PQrtioul~r OQOco. ~ -r T_ :. " f Oated at Toronto the .1st day of Karch , 199 1. -<<.e ~ M. Gorsky - Vice Chairperson ~~er :? I ~ j /iAU.~1 G.... 1I11lQ:. '.~ ": - Member 71