Loading...
HomeMy WebLinkAbout1996-0569.Mistry.99-10-15 Decision ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L 'ONTARIO GRIEVANCE COMMISSION DE .. SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONBTELEPHON~ (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 128 FACSIMILBTELECOPIE. (416) 326-1396 CSB # 0569/96 OPSEU # 96D618 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BElWEEN Ontario Public Service Employees Union (Mistry) Grievor - and - The Crown in Right of Ontario (Ontario Human Rights Commission) Employer BEFORE Richard L Verity Vice Chair FOR THE Stephen H Satchell GRIEVOR Counsel Cowling Strathy & Henderson Barristers & Solicitors FOR THE Liane Brossard EMPLOYER Counsel, Legal Services Branch Management Board Secretariat HEARING June 16 17 1998 September 10 1998 January 19 21 1999 February 3 22 25 26 1999 June 24 25 1999 FINAL DECISION The grievance of Aban Mistry arises from the non-renewal of a term contract which expired on May 6 1996 The grievor was an unclassified employee in the position of Human Rights Officer (classification HRO 2) at the Toronto East office of The Ontario Human Rights Commission (-the Commission-) in Scarborough Her grievance dated May 2 1996 reads as follows I grieve violation of the collective agreement including but not limited to Articles A, 3 13 3 14 3 15 4 24 25 26 and 27 Further I grieve that I have been dismissed without just cause and that the employer has violated the Employment Standards Act by providing insufficient notice The settlement desired included placement in the classified service and compensation with interest for all lost wages and benefits and seniority On the first day of hearing on July 3 1997 counsel advised that there were four components to this grievance a conversion issue discrimination failure to post a position and dismissal Although it was agreed that I hear all aspects of this grievance counsel proceeded initially with the issue of conversion In the result I ended with the following endorsement in an Interim Decision hereafter referred to as -Mistry Part I- dated February 4 1998 On the particular facts of this case I find that the Ministry has made a bona fide determination under 2 article 31 15 1 1 In the result I find that the conversion aspect of the grievance must be dismissed, At the end of the conversion segment of this grievance (Mistry Part I) is to be found the beginning of a controversy entirely different issues of discrimination based on age and union activity failure to post and to hold competitions and failure to act in good faith The grievor-s allegations of violations of the collective agreement named various articles in the agreement for the period January 1 1992 to December 31 1993 This grievance was filed in accordance with that collective agreement When the grievance was filed on May 2 1996 however the relevant collective agreement was for the period January 1 1994 to December 31 1998 The following provisions of the latter agreement were referred to by the parties ARTICLE 3 NO DISCRIMINATION 3 1 There shall be no discrimination practised by reason of race ancestry place of origin, colour ethnic origin, citizenship creed, sex, sexual orientation, age marital status fmnily status or handicap as defined in section 10(1) of the Ontario Human Rights Code (OHRC) 3,2 There shall be no discrimination or harassment practised by reason of an employee- s membership or activity in the Union, ARTICLE 6 POSTING AND FILLING OF VACANCIES OR NEW POSITIONS 6 1 When a vacancy occurs in the Classified Service for a bargaining unit position or a new classified position is created in the bargaining unit, it shall be advertised for at least ten (10) working days prior to the established closing date when advertised within a ministry or it shall be advertised for at least fifteen (15) working days prior to the established closing date when advertised service-wide All applications will be acknowledged, Where practicable notice of vacancies shall be posted on 3 bulletin boards 6,3 1 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 seniority shall be the deciding factor 64 An applicant who is invited to attend an interview within the civil service shall be granted time off with no loss of pay and with no loss of credits to attend the interview provided that the time off does not unduly interfere with operating requirements ARTICLE 8 TEMPORARY ASSIGNMENTS 861 Where an employee is assigned temporarily to a position, Article 6 (Posting and Filling of Vacancies or New Positions) shall not apply except where (i) the term of a temporary assigIl111ent is greater than six (6) months duration, and (ii) The specific dates of the term are established at least two (2) months in advance of the commencement of the temporary assignment. ARTICLE 18 SENIORITY (LENGTH OF CONTINUOUS SERVICE) 18 1 An employee- s length of continuous service will accumulate upon completion of a probationary period of not more than nine (9) months and shall commence (a) from the date of appointment to the Classified Service for those employees with no prior service in the Ontario Public Service or (b) from the date established by adding the actual number of full-time weeks worked by a full-time unclassified employee during his or 4 her full-time employment back to the first break in employment which is greater than thirteen (13) weeks ARTICLE 31 UNCLASSIFIED EMPLOYEES OTHER THAN SEASONAL, STUDENT AND GO TEMP EMPLOYEES APPOINTMENT TO THE CLASSIFIED SERVICE 31 13 1 Where an employee is appointed to the Classified Service and has worked more than twenty-four (24) hours per week on a continuous basis immediately prior to appointment to the Classified Service the time he or she actually worked within the previous year may be considered to be part of his or her probationary period to a maximWll of six (6) months OTHER APPLICABLE ARTICLES 31 16 1 The following articles of the Central Agreement shall also apply to unclassified employees other than seasonal, student and GO Temp employees 1 2 3 4 5 6 1 6 4 8 9 10 1 13 14 15 16 18 21 22 23 24 27 28 45 and 80 As to the proper line of approach to the controversies in the second segment of the grievance (Mistry Part II) counsel for the union cited several authorities as having value as precedents In this connection I refer to the text of Tamopolsky and Pentney - Discrimination and the Law- It is not enough for the respondent to show that the conduct complained of could be explained otherwise than an instance of discrimination Discrimination, even if it is merely a "proximate cause" of prohibited action, is a violation of the Code Foster Wheeler Ltd, v Ontario (Human Ri~hts Commission) (1987) 8 C,H,R,R, D/4179 (ant. Div Ct.) also as stated in Horton v Nia~ara (Re~ional Municipality) (1987) 9 C,H,R,R, D/4611 (Ont.Bd, of Inquiry) "even if a breach of the Code is only 5 one among other causes leading to the action in question then the entire action is tainted, As to the burden of proof required counsel cited the following proposition as stated in Israeli v Canada (Canadian Human Rif{hts Commission) (1983) 4 C H RR D/1616 at D/1617 The burden of proof in discrimination cases is important, as is the order of presentation of the evidence Cases of refusal of employment on discriminatory grounds before boards of inquiry in Canada, whether at the federal or provincial level all seem to employ the same burden and order of proof The complainant must first establish a prima facie case of discrimination, Once this is done the burden of proof shifts to the employer to provide a reasonable explanation for the otherwise discriminatory behaviour Finally the burden shifts back to the complainant to prove that this explanation was merely a "pretext and that the true motivation behind the employer" s actions was in fact discriminatory The Board is satisfied that the authorities cited above help to keep the pathway clear By way of illustration if age or union activity played a part in the decision not to renew the grievoros contract beyond May 6 1996 such conduct by an employer would give rise to a valid claim of discrimination Mistry Part II was heard over eleven hearing days To repeat all of the evidence the arguments submitted and the numerous authorities cited would carry this decision beyond reasonable bounds Suffice it to say that I have carefully considered all of the evidence adduced and submissions made and will set out the evidence in sufficient detail to explain my rationale As to the grievor-s employment history it is useful to quote from pp 4-5 of the interim 6 decision The grievor Aban Mistry worked for approximately 19 years for the Ministry of Health from March 1972 until March 1991 when she resigned under the terms of a voluntary exit package Approximately one year later she returned as an unclassified employee under a series of full-time fixed term contracts from March 30 1992 to May 6 1996 As an unclassified employee the grievor s employment history briefly summarized, is as follows 1 From March 30 1992 to December 31 1993 under a series of term contracts Ms Mistry worked in the position of Human Rights Assistant (classification H R,O 1) at the Toronto East Regional Office in Scarborough, 2 From January 1 1994 to October 16 1994 as a result of an involuntary transfer the grievor worked in the position of Human Rights Assistant (classification H R,O 1) at the Toronto Central Regional Office in Toronto 3 Following her success in a competition, the grievor returned to her former position as Human Rights Assistant (classification H R,O 1) at the Toronto East Regional Office on October 17 1994 4 From 1994 onward, the grievor was the only unclassified employee working at the Toronto East Regional Office with the exception of Karen Thomas a reader for Human Rights Officer Rod Ioi who is visually impaired, Ms Thomas position was paid from a special accommodation fund, 5 Under a series of term contracts she continued working as Human Rights Assistant at the Toronto East Regional Office from October 17 1994 to January 7 1996 6 The grievor s final term contract for the position of Human Rights Assistant (classification H,R,O 1) was for the period December 15 1995 to March 31 1996 7 Notwithstanding the renewal of the grievor s final term contract, she applied for a posting for the position of Human Rights Officer (classification H R,O 2) which arose from the maternity leave of Anita Monaghan, 7 8 The grievor was the successful applicant in the competition referred to above and was awarded the position of Human Rights Officer (classification H,R,O 2) for a period from January 8 1996 to May 6 1996 For purposes of clarification, the grievor had two separate term appointments the one as the purported replacement for Anita Monaghan as Human Rights Officer (H R,O 2) and the other as a renewal of the term contract as Human Rights Assistant (H R,O 1) The actuality of the situation was that the grievor performed duties assigned to her without distinction between the contracts In other words the grievor performed her duties as though there were only one contract. 9 On January 8 1996 the grievor received written notice under the Employment Standards Act that her contract as Human Rights Officer at the Toronto East Regional Office would not be renewed after May 6 1996 10 On April 1 1996 the first day of work following the five week OPSEU strike (February 26 to March 31 1996) the grievor was told by Robert Seales then Acting Regional Manager of the Toronto East Regional Office that her contract would not be renewed, 11 May 6 1996 was the grievor s final day of work, No one was hired to replace the grievor in an unclassified position, I find it desirable to add a further word of explanation with respect to paragraph 7 cited above Anita Monaghan was given pregnancy leave from October 30 1995 to February 25 1996 Thereafter she was on parental leave from February 26 1996 to May 5 1996 Subsequently from May 6 1996 to August 23 1996 she was off work on extended pregnancy leave without pay It will be observed that the employer was made aware of the fact in October 1995 that Ms Monaghan would not be returning to work until August 23 1996 The testimony of the grievor in Mistry Part II is the foundation of the union- s case Her testimony however is met by the counter testimony of Robert Seales (-Seales-) Acting Manager 8 of the Toronto East office of the Commission Seales is also a member of the union. It is therefore necessary to give in brief summary a resume of the evidence in which the conflict is to be found The grievor-s evidence is to this effect she did not cross the picket line during the OPSEU strike (February 25 1996 to March 31 1996) she contacted Seales at home on three occasions during the strike she advised him that she was thinking of crossing the picket line because she needed the money' she told him that she did not enjoy picket line duty and that Seales cautioned her and asked her to consider the effect on her co-workers in the event that she did cross the picket line Seales- answer to this is that he told her that it was entirely her decision but if she crossed the picket line she would have to work with other staff at the end of the strike To go back to the grievor-s testimony she said that on April 1 1996 - the first day on which the employees returned to work following the strike - Seales advised her that all current term contracts would not be renewed including her own contract after its expiry date of May 6 1996 She said the reason he gave was -because of budgetary constraints - In opposing testimony Seales impugned the grievoros statement that he advised her that all current term contracts would not be renewed he merely told her that her contract would not be renewed after its expiry date 9 To return to the grievor she said that in April of 1996 she was fifty-two years of age and had two years and three months to go in order to qualify for early retirement under -Factor 80" of the OPSEU Pension Plan She said that beginning on April 8 1996 she told Seales on three or four occasions that she would take part-time employment if there was no full-time work to bridge to Factor 80 On this point Seales confirmed her testimony The grievor wrote a letter dated April 22 1996 addressed to the Deputy Minister of Citizenship Culture and Recreation (Exhibit 4 - Tab 24) It read as follows I am a contract employee requiring 2 years and 3 months to bridge my service and qualify under Article 12 of the Ontario Public Service Employees- Union Pension Plan for early retirement with Factor 80 (copy enclosed) This will give me 25 years and 4 months of pensionable service out of which 19 years are as a classified employee For the last 4 years I have been employed with the Ontario Human Rights Commission, Ministry of Citizenship in the position of a HWllan Rights Officer I have been advised by my management that my contract will not be renewed upon its expiry on May 6 1996 I mn 52 years old and without 2 years and 3 months of additional service I will have to wait for approximately 13 years to be eligible for pension income and benefits My present family situation does not afford me the luxury of waiting for 13 years without pension income and more importantly the benefit package that is provided for employees As required under Article 12 2(d) I am seeking your approval to be able to continue in my present position at least on a part-time basis towards my requirement for 2 years and 3 months in return for the same high standard of performance which I am so capable of delivering I would be happy to accept any condition of employment covered under the provisions of Article 12 2 (a) (i) or (ii) I have always been a sincere conscientious hard working and a very productive employee My personal records and my managers would attest to that. Realizing the demands on your time I will call your office the week of April 29 1996 to see if a brief meeting would be feasible 10 She showed the letter to Seales According to the grievor there followed a colloquy to this effect Seales advised her not to send the letter to the Deputy Minister he said -some people are upset that you left the public service and that you now want to get the benefit again- which he referred to as -double dipping- she answered -I got severance pay when I resigned my classified position in 1991 I am now anxious to receive my -Factor 80" early retirement - Seales said -you don-t know Neil (Neil Edwards Director Regional Services and Systemic Investigation Branch of the Commission) He has many contacts he doesn-t like anyone questioning his authority if you go above him he could really hurt you - she answered -How can he hurt me? I have lost my job with no hope of getting another- Seales said in substance that it would be a waste of time to send the letter - How can the Deputy Minister approve a request without consulting management and you know what management-s answer will be - According to the grievor these statements by Seales persuaded her not to send the letter to the Deputy Minister There is more In addition to use the grievor-s words - Robert Seales tried to dissuade me from filing a grievance - -Aban you don-t know Neil he could really hurt you - In counter testimony Seales impugned the grievoros testimony as to his alleged reaction to the letter addressed to the Deputy Minister (Exhibit 4 - Tab 24) I do not attempt in this summary of the evidence to recite Seales- piece by piece refutation of the derogatory references about Edwards that the grievoros testimony fastened on him He also denied any attempt to dissuade the grievor from filing a grievance To use his words -it was her right as an employee- 11 It is common ground that the grievor requested a written reference on April 1 1996 The grievor testified that Seales told her initially that he would give her an excellent reference According to Seales he told her that he would inquire of his superiors to that end and subsequently advised her that it was not the practice of the Commission to give written references On the grievoros testimony she made several requests for a written reference at a later stage when she said -am I not getting it (the reference) because I filed a grievance?- She went on to say that Seales looked at her and -smirked- and said -you have put management in an adversarial position - Seales- answer to this is that he neither smirked nor made such a statement As to the issue of age Seales testified that - I never considered her age Her age never entered my mind - It is common ground that Seales said that he would fax to Edwards her letter addressed to the Deputy Minister and he did so Next in order I meet another segment of this controversy There was evidence which was not contradicted that on or about April 20 1996 Seales had a discussion with Edwards in which he (Seales) attempted to help the grievor he told Edwards of her circumstances and financial difficulties he justified his support of the grievor on the grounds that she was a good employee 12 whose employment should be continued Unfortunately for the grievor Seales efforts were in vain Edwards would not budge from his stand of no renewal for unclassified employees Shortly thereafter Edwards got a copy of the letter authored by the grievor and addressed to the Deputy Minister (Exhibit 4 - Tab 24) as did the Executive Director of the Commission Remy Beauregard Edwards took up the contents of the letter with the Commission"S Human Resources Manager Elizabeth Jeffrey Ms Jeffrey pointed out that the requirements of -Factor 80" do not contemplate a shortfall of service such as the grievor-s two years and three months and accordingly the Commission would not be able to bridge that period of time On April 24 1996 the grievor Edwards and Seales held a teleconference among themselves The telephone conference was the product of Seales- efforts as he stated -it was to deal with why the grievor would not have her contract of employment extended I wanted her to hear it from Edwards - Seales admitted that his knowledge of the workings of -Factor 80" was limited He was unable to recall much of the details of the teleconference It is necessary to chose between the competing versions of the grievor and Seales In arbitration as in litigation the demeanour and manner of witnesses is always in evidence In this case the witnesses testified as to the details of conversations which had taken place some two or more years before they repeated them before the Board 13 In my view Seales was an impressive witness As already mentioned he was at all material times not only acting manager of the Toronto East office but also a member of the union I believe that he kept his integrity and common sense intact when he was elbowed by circumstances into the climate of the strike Although he was on friendly terms with the striking employees and sympathetic to the grievoros position I do not think that he attempted to play the role of an intermediary in the legal sense of that word between management and the union He gave his evidence in a frank and open manner and properly qualified it whenever he was not confident of his memory The grievor has been naturally and understandably concerned with economic self-interest and has been alert to safeguard it throughout the hearing The fact of Seales- communications with Edwards to procure some amelioration in the grievoros situation would cause me to express some surprise if quite suddenly one observed evidence of an anti-grievor attitude and of -smirking- on the part of Seales whose relationship to the grievor was that of one desirous of doing her a service Counsel for the union conceded with commendable candour that Seales did everything he could to help the grievor That concession goes a significant way towards being an antidote to the grievor'S evidence that Seales tried to dissuade her from filing a grievance by way of a derogatory verbal assessment of Edwards 14 Memory does not mirror the past it recreates the past An honest witnesses- belief in the accuracy of her memory is no guaranty that it is correct The effect left on my mind is that the stress of long dwelling on the contentious subject of her loss of employment has lead the grievor to confuse the recollection of her conversations with Seales with what she has unconsciously persuaded herself had happened A graver view of the contradictions in the testimony of the grievor and Seales must not be taken than the facts require I have no thought to regard the grievor other than a conscientious hard working and well-meaning person Understandably it was very stressful to the grievor to learn that younger unclassified employees with less service had been given employment contracts after she had been given notice of the non-renewal of her contract A consideration of the whole of the evidence in this case leads me to the conclusion that Seales- account of his conversations with the grievor is probably the true one Stated differently wherever controversy exists between them I prefer the evidence of Seales The intent to discriminate against the grievor is a question of fact to be inferred from all the facts and circumstances of the case In considering intent it is always a question to be considered in connection with motive Obviously intent and motive are two different things Counsel for the union submitted that the cumulative significance of all of the circumstances and evidence in the case gives rise to a very reasonable inference that there was not only a motive but that there was an intention on the part of the employer to discriminate against the grievor on the basis of age and/or 15 union activity and further that there was a failure of good faith on the part of the employer in dealing with the grievor The general thrust of the union argument is that the employer os assertions of legitimate business reasons as an explanation for its impugned actions is undercut and overborne by the weight of the direct and circumstantial evidence which points to a different conclusion Simply stated the employeros position is that its actions were founded on legitimate and substantial justifications without discriminatory motive and without breach of any of the grievoros rights under the collective agreement the Ontario Human Rif{hts Commission and any other legislation I turn at this point to two unclassified employees identified by the grievor whose names figured prominently in the presentation of the case before the Board I begin with Nike Myers (Myers) She commenced employment as an unclassified employee under a term contract in the position of Human Rights Assistant (classification HRO 1) at the Toronto Central office for the period September 1 1994 to October 16 1994 Interestingly enough Myers who was significantly junior in age to the grievor was trained in this position by the grievor for approximately one and one-half months until October 16 when the grievor by virtue of her success in a competition returned to the Toronto East office as an unclassified HRO 1 As a result of a competition Myers was given a second term contract at the Toronto Central office for the period October 17 1994 to December 31 1994 Thereafter her employment was extended under a series of term contracts through to May 3 1996 which became a critical date in the arguments before me It was critical 16 because on or about April 1 1996 both Myers and the grievor were told that their respective contracts would not be renewed because of budgetary constraints One can readily imagine the grievoros state of mind when she learned that Myers had been given without competition an eleven month part-time contract (3 days a week as an unclassified HRO 1 commencing May 6 1996 and expiring March 28 1997 It is fit and proper to leave the matter of Myers- renewed employment to a later stage The other younger unclassified employee identified by the grievor is Brian Eyolfson (- Eyolfson- ) He commenced work with the Commission as an unclassified employee at the Toronto Central office in the position of Human Rights Officer (HRO 2) on January 8 1996 the same date on which the grievor commenced her last term of employment which expired on May 6 1996 Eyolfson-s initial contract was for the period January 8 1996 to August 2 1996 The subsequent renewal of Eyolfson-s contracts on two occasions covering the period August 3 1996 to March 23 1997 obviously did nothing to bring peace of mind to the grievor To this contentious contract I shall also return at a later stage Inevitably there was some degree of cross-reference between the evidence in the discrimination aspect of the case and the evidence in the other aspect of failure to act in good faith I think it would be a sensible arrangement to deal with the evidence as it presents itself and then by way of ending state my findings compendiously as they relate to each issue in the case 17 My findings of fact with respect to the remainder of the case compendiously stated are as follows (1) On April 1 1996 the grievor was advised by Seales that her term contract as an unclassified employee would not be renewed because of budgetary constraints or in the grievoros words there was -no money- On the same day the grievor was advised that all current unclassified contracts would not be renewed (2) The grievor made a request for part-time employment within a week of being told that her contract would not be renewed and repeated that request on several occasions thereafter (3) On or about April 20 1996 Seales raised the issue of part-time employment for the grievor with Edwards but to no avail (4) On April 22 1996 Edwards on behalf of the employer signed the unclassified part- time HRO 1 contract granted to Myers which was to run from May 6 1996 to March 28 1997 (5) Within a day or so thereafter a second conversation occurred between Seales and Edwards in which Seales indicated to Edwards by telephone that the grievor was crying and that she had prepared a letter to the Deputy Minister pleading for part- 18 time employment in order to bridge her service to early retirement under -Factor 80" of the OPSEU pension plan (6) Edwards received a copy of the letter addressed to the Deputy Minister (Exhibit 4 - Tab 24) which was also sent to the Executive Director of the Commission Remy Beauregard (7) Edwards was called by Beauregard on or about April 23 or 24 to enquire whether anything could be done for the grievor (8) In response to Beauregard-s telephone call Edwards contacted the Commissionos Manager of Human Resources Elizabeth Jeffrey (9) Ms Jeffrey was of the opinion that it was not feasible to do anything to assist the grievor because her request of a service bridge of two years and three months to reach -Factor 80" would be contrary to the Commission-s settled practice of a maximum six months service bridge Edwards on behalf of the Commission accepted J effreyos advice (10) On April 24 1996 a teleconference call took place between the grievor Edwards and Seales The grievor became emotional in speaking of her need for employment 19 her desire to obtain -Factor 80" and the hiring of Nike Myers for a further term contract Edwards was somewhat abrasive and stated that the reasons for the non- renewal of the grievoros contract was because of budgetary constraints In a word the teleconference call produced nothing of significance (11) The grievor filed her grievance on May 2 1996 Counsel for the union contended that the failure to renew the grievoros contract and the renewal of the contracts of Myers and Eyolfson without competition flies in the face of managementos reason for not renewing the grievor-s contract that is there was no money and no need for the grievor-s unclassified position Furthermore counsel contended that the Myers and Eyolfson unclassified contracts were renewed without the posting and the holding of competitions which is a violation of the Commission-s own policy as set out in Edwards- Memorandum dated May 12 1994 which reads as follows MEMORANDUM TO' All Staff Regional Services & Systemic Investigation Branch FROM Neil Edwards Director Regional Services & Systemic Investigation Branch CC Elizabeth Jeffrey Manager Human Resources 20 DATE May 12 1994 SUBJECT ACTING ASSIGNMENTS DEVELOPMENTAL OPPORTUNITIES CONTRACTS In the past, the practice (with varying exceptions) in the Branch has been to appoint or assign staff to acting assignments developmental opportunities and contracts without a competition This practice has had the effect of excluding staff from competing for positions in which they are interested, Effective immediately this practice will be discontinued, Exceptions will be made in cases where for example someone leaves a position due to a resignation, illness etc and for the Branch to continue functioning smoothly it is necessary to assign someone to the position temporarily until a competition is held All acting assignments developmental opportunities and contracts that will expire on June 30 1994 or thereafter or may become available in the future will be posted and as [sic] assessment done to determine the most qualified candidate Assessments will be done based on the requirements of the position, It is my firm belief that all employees must be given opportunities to take on new responsibilities and learn needed skills Counsel further noted that Edwards in cross-examination admitted that the memorandum (Exhibit 4 - Tab 9) constituted a policy which the Commission did not follow in the Myers case as well as on numerous other occasions Union counsel made the further argument that the application of the policy memorandum is mandatory and that the Commission by its non-compliance with the policy deprived the grievor of an advantage in a competition over Myers According to counsel the advantage was this the grievor had more experience (seniority) than Myers she had been the successful applicant over Myers in a competition for an HRO 1 position at the Toronto East office in the fall of 1994 and it was -improper- for the Commission to sign the Myers- contract once the grievor raised the 21 request for either full-time or part-time employment Counsel also noted that the grievor was the only unclassified employee to be let go of the three unclassified employees in the Toronto area, that the grievor was senior in age and service and the only one of the three unclassified employees who had participated in picketing throughout the duration of the strike In reply counsel for the employer made the submission that the conduct of the Commission has to be considered in light of the financial situation which confronted it throughout the relevant period of time Counsel noted that the Commission had to address a budget deficit for the 1996-97 financial year in the order of $580 000 00 She went on to the uncontradicted evidence of Edwards that by 1996 the Senior Management Committee of the Commission was looking for ways to address the budgetary deficit and that one of the methods undertaken was to reduce the number of unclassified employees To fortify her argument counsel submitted that this plan had been in effect for some time as revealed in the evidence that in 1994 there were sixteen unclassified employees working at the Commission while in early 1996 the number of unclassified staff at the Commission had been reduced to seven three of whom worked in the Greater Toronto area Counsel further noted that there was no evidence that the Commission knew or anticipated in early 1996 that there would be a need for unclassified help in the Greater Toronto region and that the need that came to light in April 1996 for unclassified contracts was isolated to the Toronto Central office and only after representations on the basis of need due to work load by Toronto Central Regional Manager Linda Ackroyd 22 Counsel for the employer made the point that at the time the Commission initially decided in early 1996 to renew the grievor-s contract neither Edwards nor the Senior Management Committee knew the grievoros age and her proximity to -Factor 80" early retirement Counsel for the employer contended that the important point was the uncontradicted evidence of Edwards that in February or March of 1996 the Senior Management Committee made the decision that no unclassified contracts would be renewed the announcement of which was postponed by the intervention of the OPSEU strike which ended on March 31 1996 The argument was made by counsel for the employer that the Commissionos position on the non-renewal of the grievor-s contract has remained consistent throughout in that it was a combination of no funds available and a business decision not to allocate funds for unclassified staff In this connection she points to the evidence of Seales that there was no ongoing need for the work of an unclassified HRO 1 in the Toronto East office As regards to the non-posting of the Myers- position counsel for the employer contended that there was no obligation to do so under either the collective agreement or the memorandum of Edwards dated May 12 1994 (Exhibit 4 - Tab 9) notwithstanding the words -all acting assignments will be posted - The very plausible argument for the union is not without considerable force but at the end of the day I feel disposed to accept the argument of counsel for the employer 23 Provided there is no age discrimination it is legitimate of course for management to select its employees In this case I find that there was no evidence of discrimination either systemic or directed towards the grievor The grievor acknowledged that she had been treated fairly because of age during her employment and for her contract renewals In fact in January of 1996 she had been hired and was in the process of being trained in a new position requiring greater knowledge and skill which is an act of non-discrimination I find that at the time Edwards and the Commissionos Senior Management Committee decided not to renew the grievor-s contract which was to expire on May 6 1996 neither he nor the Senior Management Committee knew her age and her proximity to -Factor 80" The decision not to renew was based on financial and business reasons The employer subsequently decided to renew the contracts of two other unclassified HRO-s in Toronto for reasons which I accept namely that there was a need for those positions at the Toronto Central office for those two workers but that no such need existed at the Toronto East office where the grievor was employed I find it telling that when Edwards learned that the grievor was two and one-quarter years short of -Factor 80" he enquired of the Commissionos Human Resources Manager whether anything could be done to bridge the grievoros time to -Factor 80" He was informed that a number of employees had been bridged to -Factor 80" for periods up to six months but that it was impossible to bridge the grievor because of the period of time required Is this the act of a discriminatory nature? The union argued that the grievor was the only one of three unclassified HRO-s in the 24 Toronto area who refused to cross the picket line during the OPSEU strike in February-March 1996 and urged the Board to draw the inference that the failure to renew her contract in light of the renewal of two area unclassified employers (Myers and Eyolfson) amounted to discrimination based on union participation The inference to be drawn from differential treatment depends upon the weight and credibility assessed to that fact as well as to all other circumstances in the case I cannot conclude that the differential treatment of the grievor was because of union participation It is common ground that other employees who did not cross the picket line are still employed by the Commission and that employees who did cross the picket line have been subsequently laid off Edwards and the Senior Management Committee decided not to renew the contract of the grievor who did not cross the picket line and Nike Myers who did cross the picket line These decisions were appealed by the Regional Managers for the grievor and Nike Myers Myers- Regional Manager Linda Ackroyd emphasized the need to have Myers- employment continue based on the workload in the Toronto Central office while the grievor-s Regional Manager emphasized the grievoros personal circumstances and the fact that she had been a good employee as the reasons to renew her contract Seales then Acting Regional Manager of the Toronto East office testified that the volume of work at that office was down in the spring of 1996 and could be adequately handled by existing classified employees The grievor agreed that she had never experienced any discrimination directed towards her because of her union activity during the course of her employment I find no reasonable grounds to support an inference that Edwards was motivated by consideration of union participation in not 25 renewing the grievoros contract and in renewing Myers- contract and later the contract of Brian Eyolfson in August 1996 The union alleges that there has been a breach of the collective agreement and also a breach of the policy of the Commission concerning the posting of vacancies and the Commissionos obligation to recognize the grievor-s seniority For ease of reference I set out again the Memorandum sent by Edwards to all staff dated May 12 1994 which reads as follows (Exhibit 4 - Tab 9) SUBJECT ACTING ASSIGNMENTS DEVELOPMENTAL OPPORTUNITIES CONTRACTS In the past, the practice (with varying exceptions) in the Branch has been to appoint or assign staff to acting assignments developmental opportunities and contracts without a competition This practice has had the effect of excluding staff from competing for positions in which they are interested, Effective immediately this practice will be discontinued, Exceptions will be made in cases where for example someone leaves a position due to a resignation, illness etc and for the Branch to continue functioning smoothly it is necessary to assign someone to the position temporarily until a competition is held All acting assignments developmental opportunities and contracts that will expire on June 30 1994 or thereafter or may become available in the future will be posted and as [sic] assessment done to determine the most qualified candidate Assessments will be done based on the requirements of the position, It is my firm belief that all employees must be given opportunities to take on new responsibilities and learn needed skills I read the Edwards- memorandum as a unilateral decision with policy implications There was no evidence that the memorandum was the product of the collective bargaining process As 26 I see it management is free to make unilateral changes on matters which fall outside the mandatory provisions contained in the collective agreement The Edwards- memorandum (Exhibit 4 - Tab 9) is a written document which cannot be varied by the circumstances out of which it grew the circumstances may be resorted to for the purpose of ascertaining the standpoint of the parties in regard thereto On the evidence it was established that renewals of unclassified employee contracts were made without competition where an incumbent had been chosen initially by competition The policy of posting unclassified positions where it involves a renewal was more honoured in the breach than in the acceptance A useful illustration is to be found in the fact that to the grievoros benefit her term contracts were renewed no fewer than fourteen times without competition All this in my view leads to an almost irresistible conclusion that both parties viewed the practice as a policy permissive at the discretion of management and not part of the mandatory provisions of the collective agreement There was no history before me of a union stance against the lack of competition for the renewal of unclassified contracts and accordingly it has not been treated by the parties themselves as mirroring the provisions of the collective agreement Similarly for ease of reference it is helpful to set out again the provisions of Article 8 6 1 of the collective agreement entitled -Temporary Assignments- ARTICLE 8 TEMPORARY ASSIGNMENTS 27 861 Where an employee is assigned temporarily to a position, Article 6 (Posting and Filling of Vacancies or New Positions) shall not apply except where (i) the term of a temporary assignment is greater than six (6) months" duration, and (ii) The specific dates of the term are established at least two (2) months in advance of the commencement of the temporary assignment. Article 8 6 1 of the collective agreement mandates that all temporary assignments are to be posted if two conditions are met (1) the temporary assignment is for more than six months which is the case here and (2) if the specific dates of the temporary assignment are established at least two months in advance This provision in my view could be used to permit management to manipulate what assignments are to be posted but that is a term of the collective agreement and it is clear in the instant grievance that the specific dates were not established at least two months in advance and thus it is that there was no mandatory requirement to post the Myers- position under the collective agreement In fact on April 1 1996 there were to be no renewal of unclassified contracts a decision which was reversed after reasonable representations were made to Edwards by Toronto Central Regional Manager Linda Ackroyd It was Ms Ackroyd who appealed the Commission"S initial decision not to renew Myers- contract on the basis that the workload at the Toronto Central office and that it was imperative that the contract be renewed on a full-time basis The Commission 28 accepted the need for Myers- employment at the Toronto Central office and by way of compromise authorized a part-time contract for Myers who would work three days a week (Monday Wednesday and Friday) and reallocated money partly from the Hamilton office and partly from the Thunder Bay office to fund the part-time employment It is not without significance in my view that the Toronto Central office at the time bore the burden of approximately 70% of the case work of the entire Commission on a province-wide basis Similarly the extension of the Eyolfson contract on a full-time basis in August 1996 and subsequently in November 1996 for a period up to March 23 1997 was based on the same reasoning that is the need for that position at the Toronto Central Office and monies to pay for the contract renewal were reallocated from the Sault Ste Marie office The union argued that the policy memorandum dated May 12 1994 amounted to a binding policy which required that the renewal of the Myers- part-time position should have been posted and a competition held Further in effect the union contended that because this was a mandatory policy in substance it had the same effect as being part of the collective agreement thus entitling the grievor to succeed on her grievance The failure to post Nike Myers- position the union argued was a violation of the wording of the memorandum of May 12 1994 I am satisfied however on the evidence that the practice since May of 1994 was that with very few exceptions renewals especially of six months or less were not posted and in fact the grievor herself had benefited from not having her renewals subjected to posting and competitions 29 This was a practice which was known to the union and to the grievor In fact Myers would have had a strong argument based on the practice if her part-time assignment had been posted I find the Myers- eleven month contract beginning on May 6 1996 was in all respects a renewal not a new position that required posting pursuant to management os practice It was still an HRO 1 position it was still at the Toronto Central office and it required no new skills Although it was for eleven months it was only part-time which amounted to approximately six months of full-time employment Because I have found that there was no obligation to post the Myers- part-time position and that there was no discrimination I find subject to a consideration of bad faith later on the same reasoning applies to Eyolfsonos contract renewal in August 1996 It is worthwhile to note that if there was no discrimination or breach of the collective agreement or bad faith then the grievor would not have been in the position to compete for Eyolfsonos contract renewal in August 1996 even if it had been posted because she was no longer an employee at the material date Much time was spent arguing the issue of seniority Having found that there was no obligation to post and hold a competition it is unnecessary to make any final determination concerning the effect of seniority Moreover arbitral jurisprudence of the Grievance Settlement Board has held that generally in the absence of bad faith there is no recognition of seniority in the collective agreement for purposes of job competitions between unclassified employees See OPSEU (Maxwell) and Ministry of Citizenship, Culture and Recreation #951/96 (Roberts) and 30 OPSEU (McIntosh) and Ministry of Government Services #3027/92 (Dissanayake) It is clear that whatever effect the grievoros seniority would have had upon her entitlement to a position if there had been a competition her seniority does not in and of itself create an obligation to post a vacancy where no such obligation is imposed by the collective agreement or by law Otherwise stated seniority is not a reality in this case The final thrust of the grievoros argument is that management acted in bad faith It is clear that an action founded on bad faith is based on some illegal management obstruction as for example placing obstacles in front of a probationary employee so they will not successfully complete the probationary period or where there has been a denial of employee rights I am not prepared to say that bad faith can be a cause of action without a finding of a breach of the collective agreement or statute or some employer obligation or an employee s legal right What is the test to be used in determining whether certain conduct could be said to have been motivated by bad faith? It appears to me that the formula to be found in the decisions collected in OPSEU (McIntosh) and Ministry of Government Services (Dissanayake) supra, have value and significance In that case the Board stated at p 13 We take no issue with the previous decisions of the Board which hold that unclassified employees have no right under the collective agreement to grieve the results of ajob competition on the grounds that Article 4 3 1 (now Article 6 3 1) has been contravened, At p 15 the Board went on to state 31 We will not review the discussion of the applicable case law contained in Re BousQuet (GSB #541/90) (Gorsky) However we note that on the basis of the principles enunciated by the Court of Appeal the Board stated at p 58 that, This does not mean that the employer has carte blanche to do what it wishes under the purported exercise of an exclusive management function with respect to training and development. The Board concluded that in exercising its exclusive management function relating to training and development the employer has a duty to act in good faith, In Re Bousquet at p 33 the Board quoted with approval the following passage from the judgement of the Court of Appeal in Re Metropolitan Toronto Board of Commissioners of Police and Toronto Metropolitan Police Association et al (1981) 33 0 R (2d) 476 (C A) which is referred to in the McIntosh case at p 18 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. The Board in Bousquet went on to observe at p 35 Thus the significant fact required to place a limitation on the unfettered exercise of a management right is the existence of a provision in the collective agreement which would either be negated or unduly limited by a particular application of such right. I think the principles set out above in OPSEU (McIntosh) controlling the issue of discretion are in principle controlling in the instant case I find that the failure to post the positions of the other two unclassified HRO-s in the Toronto area (Myers and Eyolfson) and the failure to recognize the grievoros longer service 32 (seniority) are not violations of the collective agreement or any statute and in no way defeated any lawful right of the grievor While the failure to renew the grievor-s contract while renewing the contracts of other unclassified employees without giving the grievor an opportunity to compete were not acts of bad faith in that they did not violate the collective agreement they were also motivated by business and financial considerations which are legitimate managerial concerns The evidence is clear that the Commission in 1996 had a budget shortfall of $581 8 million and restructuring had become a necessity Money was found to fund the two unclassified positions that were renewed but based on the need in the Toronto Central office Such funding could only be found if justified by need and the volume of work. There remains to be considered the evidence relating to the grievoros application under an open posting for an HRO 2 position in the Toronto area in 1997 when she was no longer employed in the public service At that time she was not permitted to write a written test and therefore she was out of the competition without reaching the interview stage Edwards testified that he felt that her investigatory experience which is a requirement for the HRO 2 position was inadequate to justify either the written test or the subsequent interview Counsel for the employer contends that there is no or so little probative connection between the impugned conduct of Edwards in respect of the grievor in 1996 and 1997 In my view the 33 exclusion of the 1997 evidence which does not too much entangle the issues merely because of its remoteness from the issues in 1996 is not infrequently a hazard It is always hard to say what may be deemed reasonably to be a logical decision as to admissibility I feel however that my doubts should be resolved in favour of admissibility I am satisfied that the grievor-s position should be allowed whatever advantage that she may get out of it That said the question becomes one not of admissibility but of the weight to be accorded to the 1997 evidence in making a decision as to whether or not there was bias on the part of Edwards in 1996 which would constitute discriminatory conduct It is of some concern that the grievor who was one of two out of more than 170 applicant for the position in 1997 who had actually worked as an HRO 2 in the grievoros case for a brief period was not permitted to write the test In reaching my decision I do not ignore the point made by the union that the 1997 refusal to permit the grievor to write the test came after she filed the instant grievance Be that as it may I am not persuaded that the single act of the 1997 competition does by itself add sufficient weight to the 1996 action to lead me to a different conclusion Counsel agreed that I have no jurisdiction to deal with the allegation of -a reprisal- under s 8 of the Ontario Human Rif{hts Code I cautiously refrain however from any indication whether or not the 1997 competition refusal may be a matter for the consideration of the Commission itself 34 My findings compendiously stated are as follows 1 Discrimination on the Basis of A~e I find that the Commission has shown that an independent justification existed for its decision not to renew the grievor' s contract and this decision was taken irrespective of the grievor's age On the totality of the evidence I am satisfied that age was not a factor in the Commission's decision 2 Discrimination on the Basis of Union Activity I find that the Commission has shown that an independent justification existed for its decision not to renew the grievor' s contract and this decision was taken irrespective of the grievor's union activity On the totality of the evidence I am satisfied that union activity was not a factor in the non-renewal of the grievor's contract 3 Alle~ations of Bad Faith I find that the failure to renew the grievor's contract while renewing the contracts of other unclassified employees without extending to the grievor an opportunity to compete were not acts of bad faith in that they did not violate the collective agreement but they were motivated by business and financial considerations which are legitimate managerial concerns The grievance dated May 2 1996 cited a further allegation against the employer to the 35 effect that the grievor was dismissed without just cause The union made no argument bearing on this point I am satisfied that this is not a case of dismissal without just cause Rather it is solely a case of the non-renewal of the grievor's contract as an unclassified employee For all of the reasons stated above this segment of the grievance Mistry Part II is hereby dismissed DA TED at Brantford Ontario this 15th day of October 1999 Richard L Verity Vice-Chair 36