HomeMy WebLinkAboutMorrison 00-12-20
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IN THE MATTER OF AN ARBITRATION
BETWEEN
The Ontario Public Service Employees Union ("the union")
AND
Ontario Property Assessment Corporation ("the employer~')
Concerning the discharge grievance of Ian Morrison ("the glievor")
BEFORE :
R. O. MacDowell
R. Gallivan
P. Munt-Madill
(Chair)
(Em ployer. nominee)
(Union nominee)
APPEARANCES
M:.I'lI. Il4I
For the Union:
John Drewin
Ian Morrison
(Counsel)
For the Employer:
Douglas Gray
M. Bains
G.Vollies
(Counsel)
. .
A bearing in this matter took place in Toronto, Ontario, on Monday,
November 13, 2000 and Tuesday Novembe'r 14, 2000.
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AWARD
I - What this case is about: in general
This arbitration proceeding arises from the gri~vance ofIan Morrison ("the
grievor")~ who contends that his employment \vas improperly tenninated, prior to the completion
of his probationary period. The grievor was discharged on July 28, 2000; after working for
or AC as a ''valuation analyst" for about four months. Mr. Monison seeks reinstatement to his
fonner position, together with compensation for any wages or benefits lost.
The union agrees that Mr. Morrison was lion probation" in aecordanee with tlle
tenns of the collective agreement. The union also agrees that, while "on probation", Mr..
Morrison's peifonnance eould b~ subject to scmtiny. However, in the union's.submission~ the
employer did not undertake that task properly, and, in the result, Mr. Morrison's employment was
terminated in a manner that was contrary to the terms of the collective agreement.
The union complains that~ prior to effeeting the grievor's discharge, the employer
did not properly articulate its expectations or alert the grievor to its perfonnance standards. Nor
did the employer initiate any coaching or. counseling to help the grievor Uget up to speed" in his
"new job. The union says, therefore, that the grievor was put in a position where he simply did not
have a fair opportunity to do. his b.est. The union asserts that the failure to articulate perfonnnnce
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standards in this way constitutes 11Jad faithH within the meaning oftlie collective agreement, such
that the grievor's discharge should be set aside.
OP AC replies that it hired the grievor (along with 17 other individuals), to do a
job fOf which he was ostensibly qualified. Ho~ever. in the end, it decided that the grievor did not
meet OP AC's needs and expectations. So it decided not to continue his employment.
The employer asserts that the. purpose of the "probationary period" is to make an
assessment ofan individuaJ1s "suitability" for permanent employment with the organization. It
. gives the employer the opportunity to decide whether the new employee wil1likely meet the
company's needs in the longer run. And that is the assessment that the employer undertook here -
for the grievor and for a number of others whom OP AC had recently hired. OP AC says that it
was entitled to look at the crop of new hires and. decide which ones to retain; and, in the end,
OP AC decided to tenninate the grievorl~ emp]oymen~ pursuant to article 10.06 of the collective
agreement ~ as, the employer says, it was entitled to do.
OP AC points out that it is not required to have llcausen. to discharge probationary
employees. All that it is required to do is act "in good faith". And, in O~ AC's submission, that is
a very different, and much less onetous~ standard.
Thc employer says, in effect, that it has a ~Tight to be Mong" provided that it acts
in good faith; and in the employer's submission) it is not open to an arbitration board to substitute
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its views for those of the. employer. The employer asserts, therefore, that there has been no breach
of the collective agreement) and that there is therefore no basis for arbitral review.
A hearing in this matter was held, in Toronto) on November 13 and November 14.
2000. The parties were agreed that this board of arbitration has been properly appointed under the
terms of the collective agreement, and that the arbitration panel has jurisdiction to hear ~d
determine the matters in dispute between ~hem.1be parties were further agreed tllat ifthere has
been any breach of the collective agreement (which the employer denies), the panel has the
authority to remedy that breach.
Ordinarily, an arbitration award such as this one, would begin with a review' of
lithe facts", then turn to the terms of the collective agreement and any relevant legal principles.
'The aWard would proceed -from-lithe (acts)} to. "the law". However, in this particular case, the
terms of the collective agreement are a little unusuai, so it may be useful to begin 'With them. We
will then turn to the circumstances which prompted the employer to tenninate the grievor's
emplOy{l1ent.
11- What the collective agreement says about the rights of probationary employees and the
scope of arbitral review
. ...
We might begin by observing that the terms of the collective agreement deal
rather specifically with tenninatioll ofprobaJionary employees as well as the standardfor
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arbitral review of such decisions. The.agreement language shapes the way in which an arbitrator
. .
should go about hisJher task. The relevant provisions of the collective agreement incl\!de the
following (emphasis added):
Article 1 - Purpose
1.02 This Agreement sets forth the entire Agreement on rates of
pay, hours of work, and conditIons of employment; Amendments
to this agreement may only be made in writing on the agreement of
both parties. There are no representations, warranties or
conditions that affect the rights of the parties and employees. save
and except those specifically set Qut in this Agreement.
Article 4 - Management Rights
4.0,1 The Union acknowledges that it is the exclusive right of the
Employer to:
(a) Maintain order, discipline and efficiency
(b) hire, transfer, classifY, assign, appoint, promote, demote,
appraise, train, develop, ~ayoff and recall employees; .
(c) discipline and discharge employees for just cause, except that
probationary employees may be discharged withoUl cause;
(d) generally to manage the enterprise in which the employer is
engaged and without ~estricting the generality of the foregoing, the
right to plan, direct and control operations, facilities. programs,
systems and procedures, direct its personnel, detennine
~omplement, organization, methods, and the number, location and
classification of personnel required from time to time, tpe number
and location of operations, building, equipment, and facilities., the
services to be .perfonned, the scheduling of assignments and work,
the extension or limitation curtailment or cessation of operations
and all other rights and responsibilities not specifically modified
elsewhere in this Agreement.
11.05 All employees shall be on probation for a period of six (6)
months. On successful completion of the probationary period, he
will be credited with seniority as outlined in article] I,Q1.
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Arbitration
10.20 17Ul Board of Arbitration or sole arbitrator shall not be
authoriud to make any decision inconsistent with the provisions of
this Agreement, nor to aller, modify, add to or amend any part of
thl's Agreement.
Dismissal
10.05 A claim by an employee who has completed his
probationary period that he has been unjustly discharged shall be
treated as a grievance if a written statement of such grievance is
lodged with the employer at Stage Two of the grievance procedure
within ten (10) working days after the date the discharge is
effected. Such special grievances may be settled under the
grievance or arbitration procedure by: (a) confirming the
Employer's action in dismissing the employee, or (b) reinstating the
employee with or without compensation for time ]ost~ or (c) by any
other arrangement which may be deemed just and equitabl~ by the
parties or the Arbitration Board.
10.06 Jf a probationary employee's performance is unsatisfactory,
or h'e or she is unsuitable in the opinion of the Employer, such
employee may be lermltiated at,any time c:!uring the probationary
perlodprovided that such termination is not done in badfaith. The
Discharge of a probcltionary employee shall not be arbitrable
unless that {sic] it is alleged that the actions o/the Employer were
in badfaith. The arbitrator shall not reverse the termination on
any other ground.
As will be seen: the parties have constructed the contractual framework with
considerable precision; and have expressly addressed both the situation under review and the way
in which an arbitrator should approach such cases.
Those provisions are worth looking at in a tittle more detail.
r
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Under the Labour Relations Act. a collective agreement must be {'in writing". It is
a fairly simple and straightforward statutory requirement. HoweverJ the parties in this instance
have gone farther than that, and have stipulated, quite explicltly, that it is the "writing" - and
only the "writing"" that is to govern their relationship. Thus, Article 1.02 excludes any collateral
''representations warranties or conditions that affect the rights of ~ployeesU other than those
.
"specifically set out.in this agreement"; and Article 10.20 specifically limits an arbitrator's
authority to uf!lter, modify, add to, or amend" any of these negotiated provisions.
Accordingly, any inclination an arbitrator might otherwise have to "imply" terms
or 'Yead in" uimplied obligations", must be tempered by the words of the agreement, which
expressly restrict the authority to so. This agreement directs the arbitrator to pay attention to the
words that the parties have used, and it limits arbitral review on any orner, or lIimplied", basis.
The collective agreement also provides that new employees will be "on
probation" for period of six months, during which they have no (Iseniority rights" at an [see
Article 11.05]. Seniority rights are triggered, retrospectively, only when the individual is retained
beyond his/herprobation period. Moreover, during this six month period) Article 4.01 of the
agreement provides that~ the employer retains the exclusive jurisdiction to "appraise train and
. .
develop" employees, as well as the specific right to disch;arge probationroy employees 'Without
cause". On its faceJ Article 4.01 suggests that the employer need have nO cause wharsoe"-eL to
..
dismiss a probationary employee.
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b1 this respect, therefore, the probationer is in a very different position from that
of other employees: s1he has no "seniority rights", and the employer need not have ucause" (let
alone ''iust cause") to tenninate the employment relationship. There is no guarantee of job
security until after the probationary period is completed.
This theme is echoed in Articles 10.05 and 10.06 of the agreement, which deal
with empioyee claims that arise from a termination of employment. There, too, probationary
employees are plaeed in a very different positio,n from their co-workers who have completed
their probationary period.
Aniele 10.05 confinns the thrust of Article 4.01: that for emplovees who have
completed the probationary period, the employer must have "just cause" for discharge. lf th~
employer cannot establish ('just cause ", an arbitrator may fashion whatever remedy seems ''iust
and equitable" in all the' circumstances. By contrast, there is no ''iusl cause" protection for
probationers. For probationers, one simply does not find the "fairness words" that are found in
Aniele 10.05 (b). Nor are there any negotiated ureasonableness limitations" of the kind that one
finds explicitly in other parts of the collective agreement (for example, in Articles 9.03, 9.07,
9.17, 26.17 or 26.22).
<. Words of this nature (Ilfair'" "reasonableu UjustU "equitable)' ) are quite common
in collective agreements. They modify the exercise of employer discretion. They provide a
platform for arbitral review. Moreover, because one does find words like that in other parts of
tIus collective. agreement, it is evident that the bargaining parties knew how to draft such
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language when they considered it appropriate to do 80. The parties knew how 'to limit managerial
discretion \vhen that was their intention, and they have done so in a number of instances.
However, in the case of probationers, there are no such express restrictions.
Words of limitation or obligation, found elsewhere in the agreement, are conspicuously absent in
respect of this employee category. And Articles 1 and 10 of the agreement both warn an
arbitrator not to "add" words or obligations to which the parties have not expressly agreed.
On the other hand, the situation of probationary employees is addressed in Article
10.06, which deals wjth the discharge ofprobationary employees.
Under Article 10.06 ofthc collective agreement, the employer is entitled to assess
the pe1:fonnance ofncw employees, and dctennine their "suitability" (or otherwise) for ._,. - . _______m-..
continued employment. The parties have specified that it is the emvlover's opiniQ!1 that matters
here; and there is no guarantee that a probationary employee will even complete the probationary
period, let alone enjoy any measure of job security during that six months. Nor is there any
requirement for "cause" or I'just eause" to terminate the employment of a probationer. On the
contrary, the Article 10.06 says that the employment ofa probationer can be e,nded "at any
time'" provided that such termination is "not done in badfaithH,
For probationary employees, therefore, the test on tennination is "bad faith" - not
l'just cause", or 'YairnessH, or.llreasonableness" Of "adequate perfonnance in the opinion of the
arbitratoI". Nor is there any provision for periodic reviews, or wamings, or progressive.
,
discipline ~ which is to say, the kind of thing which arbitrators 11ave routinely l'rcad into" the
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'~ust cause protection". And there is nothing in the agreement prescribing any particular regimen
of Utraining" or uappralsaf' either. Those functions are described by Article 4,01 as being
among the "exclusive rights" of the employer.
This is not to say that these issues might not be relevant to an assessment of the
empJoy€rs ugood faith ". For example: a decisIon that is umani/estly unfair' or I~atently
unreasonableu might well lead to an inference of <(badfaithl). So might ~ decision that was
obviously "discriminatory" M for example, treating one probationary employee in a way that was
demonstrably different from others. The terms Clarbitrary", udiscriminatorY" or "bad faith" do not
necessarily prescribe watertight compartments.
The point is: this well known "triad oflimitations" (to adopt counsel's phrase)
does not appear in the provisions governing probationary discharges. Instead, the parties have
provided a much more limited contractual requirement: probationary tenninations must not be
done in badftith. There must be a bonafide, goodfailh, work-related assessment of ernpioyee
perfonnance~ But within that framework, the employer "has a right to be wrong" - provided that
it is not acting in "badfaith". And this "contractual message" is reinforced by the closing
sentences of Article 10.06~ which li~ the finding of "badfaith" to the arbitrabiliry of the
grievance itself, and prohibit arbitral intervention on any other grmmd.
hl sununary, then~ the collective agreement under review stipulates that unless the
aggrieved probationer can establish "bad faith?', his grievance CaIUlot be sustained, the case is not
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arbitrable, and there is no foundation for arbitral intervention. The level of Ujustification" for a
pTObationary termination is very different - and much less onerous - than it is for a regular
employee.
. We will retum to the collective agreement language later. First, it may be useful
to briefly sketch in the circumstances leading to th<:r grievor's termination.
These facts are not substantially in dispute.
Ill. The factual background
OP AC, as its name suggests, is in the business of doing property evaluations.
Those assessments are used primarily for municipal taxation purposes. OP AC's principal
customers are m~nicipalities, which use that information for their own tax planning.
In functional tenns, OPAC is the "successor" to the "assessment division" of the
Ontario Ministry of Finance. In December 1998, the Ministris assessment functions were
"privatized" and vested in OP AC, which was given a five year monopoly during whieh it would
continue to supply information to client municipalities. However, beyond that five year window,
OPAC will have to compete with other uprivate sector suppliers" of property assessment
servkes. After 2003, the municipalities will no longer be obliged to use OP AC.
.
OP AC is organized on a re'gional basis, with roughly thirty offices scattered across
Ontario. Each regional office has a regional assessment commissioner, as well as a staff of
property assessors. :rh~ company's head office is in Toronto,
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In anticipation of the competition that-it would face three years hence, OPAC was
anxious to expand its work force, and improve the quality and range of its services. Accordingly~
in late 1999 OPAC decided that the corporation needed a specialized team of professional
assessors} to tackle the evaluation ofpaiticularly difficult commercial properties - mostly in the
To(onto area, but in other parts of the province as well. The idea was to put together a group of
.
"top notch analysts'\ who would work out ofhe~d office and could deal with these properties in
a consistent way.
AcCording to John Comartin, the senior manager of conunercial properties in
Toronto, these were not "entry positions"l n,?r ones for which a training program was
contemplated. On the contrary. The company was trying to hire experienced professionals, who
, .
would already know what they were doing, and could work with a minimum of supervision. That
is why the company advertised for individuals with, formal accreditation and experience.
These positions are the most highly rated jobs in the bargaining tmit. The
expectations were quite high as well.
About 70 individuals were interviewed for the position ofli.yaluation analyst". Of
these applicants, some, 18 new employees were hired for the Toronto office. The grievor was one
oftliem.
.
Before accepting his new position, the grievor had worked briefly for OP AC as an
"evaluation assistant", and before that, he had a rather diverse career in the reaJ"estate appraisal
business. In the material accompanying his application, the grievor confirms that he has
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comprehensive appraisal experience for all categories of properties (including office complexes
and shopping centers). I:ie also indicates that he is "computer titerate'\ and is familiar with a
nwnber of computer programs and computer-based real estate evaluation techniques.
The l8 new employees working out of the Toronto office, were divided into two
groups, eaeh of which reported to a separate "coordinator". The grievor (and 8 others) reported to
Bill Bradley, who described himself as the Hcommercial co~ordinator for large office
buildingIJarge shopping center group". Mr. Bradley has been a property assessor since 1977, and
for the last few years he has been an area appraisal analyst in Toronto.
There is no dispute that Mr. Bradley is ,an experienced analyst, who has been with
the organization for many years. He was also a careful, candid, and credible witness.
The grievor was confiuried in his new position on March 13, 2000. On March l6,
2000 there was a meeting of the members of the Toronto team, to outline the objectives and
specify the deadlines.
Given the contractual standard ofreview to which we have already referred, we
are all of the view that it would serve no purpose to review the "problems" ascribed to the
grievor by Mr. Bradley. It suffices to say that although the grievor made his evaluation targets
(i.e. he completed his work on time). Mr. Bradley had some concerns about the .way in which the
reporting relationship was WOrking out. Mr. Bradley also questioned the way in which the grievor
had approached the .assessment of several buildings in Toronto. Mr. Bradley raised some of these
mattex:<l with the grievor in conversation and through a couple of e-maiIs.
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On the other hand, it is not disputed that the employer did not l~orma1Iy" sit
down with the grievor to go over his progress, nor provide any formalized critique. The employer
was of the view tha~ given the grievor's background, the namre of the job, and the grievor's
probationary status, it was not required to engage in a fonnaHzed critique of this kind. Nor was it
obliged to provide any more coaching and counseling than it had done. In the employers viewJ it
,
had hired the grievor (and 17 others) to perfonn a task for ,which they all claimed experience; and
it was open to the employer to evaluate whether that task was being performed to its
expectations, and whether it should keep all or some number of the new hires on, in the longer
run. The employer did not believe that it had to retain these probationary employees for any
particular period before making an assessment of their suitability, or to give them any specific
tests, or training, or warnings. So it didn't..
The company reviewed t~e grievor's situation in J:uly (Le. about 2/3 of the way
tJu-ough his p'ro~atIon p5riod) and decidoo to tenninate the grievorts employment. From the
. employer's perspective, it had bonafide concerns about the way the grievor was working out, and
whether the grievor would me~ the company's longer tenn needs. So in July of:2000, the
company decided to act upon those concerns, and terminate th~ grievor's employment.
Having carefully'considered Mr. Bradley's demeanor when giving his testimony,
as well as the content of that testir!lOny, we are satisfied that there is no evidence whatsoever of
any malice, ill will, animosity or enmity towards the grievor. Whether or not Mr. Bradley was
"wrong" in hi:r conclusions. and whether or not he might have done things differently, and
whether or not "we." would have come to the same conclusion. we are satisfied that Mr. Bradley
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was not improperly motivated. Mr. Bradley genuinely exami.I1ed the grievor's perfonnance and
decided that he would not Ufit jn'~ to the company's IQng tenn plans. There is no other or hidden
reason for tenninating the grievor's employment. lt was entirely a "work-related assessment",
made in light ofthe.companys assessment of its needs.
IV - Argument and Discussion
The union does not suggest that Mr. Bradley was acting "dishonestly" or
''maliciously't, or for .some improper purpose. Nor does the union suggest that Mr. Bradley was
iii-motivated in any way. Rather the union attacks the process in which the company engaged (or
,
more aceurate1y failed to engage).
The union asserts that there was a positive obligation on the company to give the
grievor a ufair opportunity" to perform, which. in mm,.entails pointing out any deficiencies that
the grievor may have had; and giving the grievor an opportunity to correct them. The union says
that it was incumbent upon the employer to set clear standards and to warn the grievor of the fact
or consequence of any departUres from such standards. Counsel submits that the grievor was led
to believe that he was meeting the expectations as explained to him, and that if the employer
were thinking of diseharging him on the "flimsy'~ grounds (counsel's description) outlined by Mr.
Bradley in his evidence, then there was a collateral obligation to apprize the grievor of the
performance standards) and how he was -found wanting.
..
The union argues that Hgoodfaith" entails a right to information on the standards
by which one will be judged, and that the failure to communicate sl~ch information constitutes
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"badfaith" - in effect, that the employer prevented the grievor from doing his best, by not fully
informing him of the apparent difficulties. Much reliance is put upon an oral decision of the
Divisional Court in Toronto (Metropolitan) v Canadian Union of Public Employees (oral
judgement given June 10, 1981 and released July 3, i 981; unreported except in Quicklaw at
[1981] O.J. 672). In that case Callaghan 1. obsenred:
.
A distinction must be drawn between the scope of the review of the
Board in the case of a discharge of an employee who has acquired
seniority and in the case of the discharge ofa probationary employee. In
the case of an employee who has acquired seniority, the collective
agreement allows the Board to 190k at the reasonableness of the cause of
the discharge. In the case of the probati9nary employee, for the Board to
look a 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 Article 30.1 and Article 3.03. (See Her Majesty the Queen in Right of
the Province of New Bnmswick v. Mary Leeming, S'upreme Court of
Canada, unreported, January 27, ]981).
The Municipality is not required to justify the dismissal by affinnatively
establishing reasonable orany cause. A probational)' employee would be
entitled to succeed on a grievance in relation to discharge only if he were
able to affinnatively establish that the action of the employer was taken
in bad faith in the sense that the decision was motivated hy un/awNl
consideratJ.'ons or resulted from manafement actions which precluded
the probationary emvlovee from doing his besJ..
The respondent [union] urged the Court to imply a tenn that the
Management, Rights1 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
tenn were to be implied, it would derogate from the "exclusive
right"given to the Municipality in relation to this matter. That would be
contrary to the intent of Ule collective agreement. (emphasis added]
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The union points to the emphasized words in the'above passage, and asserts that
they are the ~nes that are applicable to this case: the company set up a scenario in which the
grievor could not do his best The union further asserts that the negative implication of those
.
words (not doing things to inhibit the probationer from doing his best) has a positive coIUlotation
as well _ which in this case required the employer to make it clearer to the grievor that his job
.
was in jeopardy unless he met specifically enunciated requirements. As it was, (according to the
union) the standards were vague, they were not fairly explained to the grievorJ and in the case of
certain valuation issuesJ the alleged problems in methodology and result were not brought to the
grievor's attention at all.
**>1<
We have considered the Metro Toronto caseJ as well as the others to which the
union refers. However) we do not think that it is necessary to burden these reasons witJ1 further
excapts "from those other decisions. For the fact is: neither the facts in those cases nor the
collective agreement language are like the situation before us in this case; and in our view) it is
that collective agreement language which substantially detennines the result.
As we have indicated above: "fairness" or "reasonablenessH are nor the tests in a
situation like this - as the Court in Metropolitan Toronto itself appreciated in the case before it.
It wm be recalied that the critical words in article 10. 06 of the collective
agreement are I~bad faith", Those words are not unknown in law - or in labour law. Thus, in
, .
Canadian Labour Law 2nd edition, George Adams approves the following definition:
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.....bad faith refers to a subjective state of mind) that is, conduct which has been
motivated by "ill will" hostility, dishonesty, malice, personal animosity, or even
"sinister purposesu. Conversely good faith has be~n described as "honesty of
purpose" .
Black's Law Dictionary defines the term ''bad faith", (in part) this way:
the term bad faith is not simply bad judgement or negligence, but rather it implies
the conscious doing of a wrong because of dishonest purpose or moral obliquity; it
is different from the negative idea of negligence in that it contemplates a state of
mind affirmatively operating with furtive design or will",
And in Re Alcan Wire & Cable and USWA (1992) 26 L.A.C. (4111) 93 at 102 Arbitrator Tacon has
this to say (incidentally illustrating the potential overlap between the concepts of Harbz'trariness"
. .
and "discriminationU):
"At its core, bad faith implies malice or ill wm. A decision made in bad faith is
grounded not on rational cormection between the circumstances and the outcome)
but on antipathy toward the .individual for nonrational reasonS. Such non-rational
reasons may be discriminatory, in the sense that the motjvation is a reaction to an
individual's race, creed. colour, sex, or ethnic origin, Because of the absence of
rational connection between the outcome and circumstancesJ a decisions make in
bad faith cannot be reasonable. ...In that sense, a decision made in bad faith is also
arbitrary"
.
Like arbitrator Tacon, we think that these concepts - "arbitrary'\ lIdiscriminatOlY"
"bad faith" are not necessarily mutually exclusive. lCArbitrariness" may weJllead to an inference
of improper motive ~ as may evidence of discrimination. However, in our view. .the words "bad
faith" also have an independent ,content, and carry a connotation of wrong "doing, ill will. or
improper motive - which is to say, a meaning that goes beyond merely being "unreasonable II or
in some sense Hunfair", (See generally:' Carswell's Words and Phrases Judicially Defined,
Volume 1, pages }-481 to 1-485). Bad faith is a matter of motive ~ it involves something
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improper in the mind of the decision maker.
To put the matter another way: a decision can be quite wrong, Of unreasonable,
unfair, or even arbitrary, without necessarily having been made in badfailh,
It is also worth noting that in the Metro Toronto case, Callaghan J. cites no
authority for his particular formulation of the meaning of "badfailh" (see.again the emphasized
words); and in our view, he was neither rejecting the more conunon meanings illustrated by the
references above, nor investing those wotds with the elastic impact that counsel fot the union
urges upon us. Callaghan J. was not attempting an exhaustive definition, much Jess rejeeting the
more common understanding of what olbadfaith" means. He was merely citing a hypothetical
example: if an employer has intentionally impeded an employee from doing his best, the
employer would be acting in bad faith if it la.ter.relied upon such employee default as the basis
fOT discharge.
Stated in that way. no one could quarrel with the proposition. But that does not
describe the. situation here at all.
It appears to us that the, closest case to the one now before us is not Metro
Toronto, but rather a more recent one: Re IKO Industries Ltd. and USWA Local 8580 (2000) 88
L.A.C. (4th) 348 (Starkman). There, as here, tJ:1e grievQr had been IIlet go", during his
probationary period, and the union's complaint was that the employer had failed to infonn the
grievor that he had been working too slowly. TIlere, as here, the union claimed that the employer
had taken actions which "prechlded the employee from doing his besf' ~ natllely, that it had not
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advised him of his apparent shortcomings, in order that he could co'rrect and improve duriIlg the
probationary period. However, in rejecting this proposition (and the grievance), Arbitrator
Starkman made the following observations:
It can be reasonably assumed that employees who are working during a
prob~tionary period wilt do their best 'in order to complete the probationary
period, and I cannot conclude that the 'decision not to advise the grievor that he
was working too slowly was arbitrary Or in bad faith. From the vantage of a third
party observer it might be said that it is somewhat unfair or perhaps unreasonable
not to advise an employee that the speed at which he is working is below
expectations. Even if one were to draw this conclusion however, a finding of
unfairness or unreasonableness is not the same thing as a finding that the
employer acted arbitrarily or in bad faith.
... While it could be said that it would have been more fair or perhaps more
reasonable for the employer to have advised the grievor that he was expected to
work more quickly, considering the broad discretion in the collective agreement
given to the employer to assess the suitableness (sic) of a probationary employee, I
. cannot conciude that the employer's, failure to so. advise the grievor leads to a
conclusion that it acted arbitrarily or in bad faith.
The words arbitrary, discriminatory, bad faith, unfair and unreasonable have been
used by ari)itrators and Courts for a considerable number of years to discuss the
exercise ofmanageriaJ discretion and particularly as it relates to the discharge of
probationary employees. The parties to this collective agreement chose to give
management a broad discretion in its review of the suitability of probationary
eroployees, and to restrict the review of that. discretion in the grievance and
arbitration procedure to instances where the Union could demonstrate that the
employer acted arbitrarily or in bad faith.
To accept the union's submission that the employer acted arbitrarily or in bad faith
because it failed to advise the grievor that he should work more quickly would
have the eff~ct of reading the words l\mfair" or '\Jnreasonable" into article 8.03 B
of the collective agreement. It would also have the effect of elevating the standard
of review of the employer's actions from one based on arbitrariness or bad faith to
one more analogous to the just cause standard with its requirements for warnings
and' other fonus of progressive discipline which apply to seniority employees.
This is not what the parties bargained for.
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. .
like the Court in Metro Toronto, arbitrator Starkman was m:'-willing to .
'(stretch" the words in the agreement before rum, to imply <'.fairness" standards that the
parties had not negotiated.
In our view, the conunents of arbitrator Starlanan are equally apposite in
. the i~stant case, where the parties have addressed the standard to which the employer
must adhere, as well the standard of arbitral review. Th.e negotiated standard in this case,
is one of ugoodfaithl bad faitltl) - not what is c'fair' or '<reasonable" in the opinion of the
arbitrator.
Limitations of the latter kind are found elsewhere in t~e agreement. But
they do Dot appear in Article 10.06. And given the language of this agreementj it would it
not be appropriate for an arbitrator to "imply' them.
VI - Decision
In the instant case we do not have to decide whether or not, in our opinion.
the grievor was a ugood employee". Nor do we have to decide whether Mr. Bradley was
'ught" in having concerns about the grievor's perfonnance or "suitability". We need only
determine whether the employer acted in "badfaitll)'. And in our view) there is no
evidence of that,
Based upon what it saw and what it Jater learned, the company developed
. .
doubts about the grievorts suitability for permanent employment; and (again without
commenting on the details of the evidence supporting those doubts), we are satisfied that
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there was a good faith evidentiary basis for Mr. Bradley's concerns, and that his
assessment was &-ounded exclusively in these legitimate work-related matters. There was
no illicit motive. ill will, or other elements that might establish badfaith.
No doubt Mr. Bradley might have been more prescriptive and direct with
the grievor; and ifhe had followed that management style, perhaps the grievor would
have behaved differently. But that is not an obligation under the collective agreement.
Nor does the failure to take such steps point to ubadfaiih" on the employer's part.. at least
in this case. On the contrary, we are satisfied that, throughout, Mr. Bradley was acting in
complete good faith, and that there was a bona fide evidentiary foundation for his
assessment. Whether or not we agree with his conclusion, there is, in our view, no basis.
for arbitral review.
.~s point bears repeating.
For the purposes of this decisio~. we do not have to decide, and do not
decide, whether or not the grievor was a "good employee". Nor do we decide whether
there WM lljust cause" to effect his tennination. It is the employer's actions tllat are here
under review - not (or at least not directly) those of the grievor. Accordingly, it suffices to
'say that, in our view, the company has Under this agreement, reserved to itself '1he right
to be wrong", on this matter so long as it has acted in goodfaith; and on the evidence
.
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before m, we are satisfied that there was no bad faith on the' company's part. The
company did what it was entitled to do under the collective agreement, and there is no
fO\mdation for arbitral review.
The grievance is therefore dismissed.
~
Dllted at Toronto, this:1.o Day of December 2000
" ~ ~~~ f.\.;.cl," ..
I agreel~issent
Pamela Munt Madill
I agree/dissent
\! \\.-\- b)..l,\ V~ "
Robert J. Gallivan
~?.2-