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HomeMy WebLinkAbout2001-0622.Perez.03-01-31 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 0622/01 UNION# 01B212 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Perez) Grievor - and - The Crown In RIght of Ontano (Mimstry of Commumty and SocIal ServIces) Employer BEFORE RandI H. Abramsky Vice-Chair FOR THE UNION John BrewIn Ryder Wnght Blair & Doyle BarrIsters and SOlICItorS FOR THE EMPLOYER F enna MurJ I Counsel Management Board Secretanat HEARING December 4 2002 2 AWARD In my last decIsIOn In thIS matter on September 12, 2002, I determIned that the Mimstry Improperly wIthdrew the offers It had made to the successful applIcants of the March 2001 competItIOn (whIch offers had been accepted by them), and Improperly cancelled the competItIOn based on the allegatIOns of Impropnety raised on May 1 2001 EssentIally I vIewed thIS case as raisIng the Issue of when the employer may rescInd temporary appoIntments of the type at Issue - temporary appoIntments of less than SIX months duratIOn - rather than as a cancellatIOn of a competItIOn. As the partIes had not fully addressed that Issue, I stated as follows 2 Exactly what standard applIes for the Mimstry to rescInd the appoIntments wIll be addressed In the next phase of thIS proceedIng, should the partIes be unable to resolve thIS matter Whether IndIVIdual mIsconduct must be establIshed, or whether eVIdence of Improper conduct such that the results of the competItIOn are questIOnable and flawed IS sufficIent, sImIlar to the standards for competItIOn generally or whether some other standard applIes wIll be addressed. ThIS last phrase "whether some other standard applIes " refers to the fact that the partIes had not addressed the sIgmficance, If any of the fact that thIS competItIOn was for temporary vacanCIes whIch were not governed by ArtIcle 6 of the collectIve agreement. I stated, at p 17-18 In my VIew there IS also an Issue as to whether the fact that thIS competItIOn was for temporary vacanCIes that are not governed by ArtIcle 6 of the collectIve agreement affects the standard to be applIed. ThIS IS not to Imply that a fair competItIOn IS any less Important for a temporary ISS posItIOn than for a permanent one The level of trust Involved In an ISS posItIOn IS the same whether the posItIOn IS temporary or permanent. Instead, the Issue anses because ArtIcle 6 nghts do not pertaIn to temporary vacanCIes except as set forth In ArtIcle 8 6 1 The temporary assIgnments Involved In thIS matter were not for "greater than SIX (6) months duratIOn" and ArtIcle 6 dId not apply to them Without decIdIng the Issue, It IS certaInly arguable that under ArtIcle 6 a successful candIdate In a competItIOn has nghts under the collectIve agreement to that posItIOn. Whether there IS a sImIlar "nght" to the posItIOn when the competItIOn IS not governed by ArtIcle 6 IS the Issue presented here 3 Oral argument was held and addItIOnal wntten submIssIOns were filed. ThIS Award addresses what standard applIes Facts The pertInent facts are set out In my earlIer Award. SImply stated, the Mimstry posted for a sIgmficant number of temporary (less than SIX months) Income Secunty SpecIalIst (ISS) posItIOns The competItIOn was held and the successful candIdates were IdentIfied by telephone They were offered the posItIOns and the offers were accepted. TentatIve startIng dates were IdentIfied. Immediately thereafter allegatIOns of Impropnety dunng the competItIOn were made by one of the successful applIcants Others came forward wIth sImIlar assertIOns Based on these allegatIOns, plus two SUSpICIOUS IntervIews that had taken place dunng the competItIOn, the Mimstry rescInded the appoIntments and cancelled the competItIOn. Positions of the Parties For the Union The Umon asserts that the onus for rescIndIng an appoIntment IS on the Mimstry and the Mimstry must establIsh, by clear and compellIng eVIdence eIther that an IndIVIdual employee engaged In Improper conduct or that there were sIgmficant ImpropnetIes whIch fatally pOIsoned the valIdIty of the competItIOn It submIts that reSCISSIOn of an appoIntment reqUIres a hIgh standard of proof The reason for a hIgh standard of proof, the Umon asserts, IS that an employee, once selected for a posItIOn, has a sIgmficant Interest In retaInIng that posItIOn. It submIts that rescIndIng all of the appoIntments unfairly and Improperly adversely Impacts those candIdates who engaged In no 4 wrongdoIng and fairly won the competItIOn. Also sIgmficant IS the fact that the Mimstry IS actIng on ItS own, In the absence of a gnevance by an unsuccessful candIdate ThIS factor the Umon argues, compels cautIOn because of the nsk that a mImmal standard would enable the employer to cancel the competItIOn If unhappy WIth the results In the Umon's VIew eIther proof of IndIVIdual cheatIng or clear and compellIng eVIdence that the competItIOn process IS fatally flawed would be reqUIred to rescInd an appoIntment, although It notes that not all flaws In a competItIOn are fatal The Umon submIts that, In thIS case, It IS not clear that even If certaIn candIdates shared IntervIew questIOns that such conduct IS Improper competItIOn actIvIty sufficIent to vItIate the whole process and rescInd the appoIntments In support of ItS posItIOn, the Umon cItes to among other cases, OPSEU (MacLellan and DeGrandis) and MinistlY of Government Services, GSB No 506/81 (Samuels) and OPSEU (Group Grievance) and Ministry of Correctional Services GSB No 1999/98 (Hams) The Umon further contends that under the "clean hands" doctnne the Mimstry should not be allowed to rely on the fact that IntervIew questIOns were dIscussed because It created the sItuatIOn that allowed for that to happen by conductIng the IntervIews over a sIgmficant penod of tIme The Umon also contends that the fact that the competItIOn In thIS matter was not governed by ArtIcle 6 IS Irrelevant. At Issue, It submIts, IS when an appoIntment may be taken away regardless of whether the appoIntment falls under ArtIcle 6 or not. 5 The Ministry The Mimstry argues that the fact that thIS competItIOn was not governed by ArtIcle 6 IS cntIcal It first argues that under ArtIcle 8 6 2, the GSB has no jUnSdIctIOn to reVIew the Mimstry's decIsIOn to cancel the appoIntments at all ArtIcle 8 6 1 provIdes that ArtIcle 6 (PostIng and FillIng of VacancIes or New PosItIOns) does not apply except where the term of the assIgnment IS greater than SIX months, and the specIfic dates of the term are establIshed at least two (2) months In advance of the commencement of the temporary assIgnment. ArtIcle 8 6.2 then states In no other case shall any provIsIOn of thIS Central CollectIve Agreement wIth respect to the fillIng of, assIgnment or appoIntment to a vacancy apply to temporary assIgnments, except as provIded In ArtIcle 8 6 1 Based on thIS language, the Mimstry contends that the GSB has no jUnSdIctIOn to reVIew the temporary assIgnments In thIS case - SInce no provIsIOn of the collectIve agreement applIes ThIS, In the Mimstry's VIew IS the type of negotIated "clear language" reqUIred to relIeve the GSB of jUnSdIctIOn to reVIew the matter CItIng OPSEU (Union Grievance) and Management Board Secretariat, GSB No 0405/99 (Abramsky) The Mimstry recogmzes that thIS argument was not raised before, but asserts that because It goes to the jUnSdIctIOn of the Board, It may be raised at any tIme In the alternatIve, the Mimstry asserts that If the Board does have jUnSdIctIOn to reVIew the matter ItS reVIew IS lImIted to a determInatIOn of whether the Mimstry acted In good faith and for reasonable busIness reasons It submIts that what IS at Issue here IS akIn to a developmental opportumty to whIch an employee has no nght under the collectIve agreement. The Mimstry asserts that the matter mIght be dIfferent If the appoIntments were made under ArtIcle 6 of the collectIve agreement. But here, It argues, no such entItlement eXIsts, as set out In ArtIcle 8 6.2 In ItS VIew an appoIntment to a temporary vacancy that IS not governed by ArtIcle 6 IS a gratuItous benefit that does 6 not create a substantIve nght to that posItIOn. In support of ItS posItIOn, the Mimstry cItes to OPSEU (Young et aL Group Grievance) and Ministry of the Attorney General GSB No 1456/00 (Abramsky) and OPSEU (Bousquet) and Ministry of Natural Resources GSB No 541/90 (Gorsky) Further the Mimstry notes that under the good faith standard, the test IS not one of correctness or whether or not the Board would concur wIth the employer's decIsIOn Instead, the test IS one of reasonableness Here, the Mimstry submIts that the eVIdence establIshes that the Mimstry acted In good faith when It cancelled the competItIOn and rescInded the appoIntments based on allegatIOns of cheatIng. The Mimstry further contends that the standards set forth by the Board In reVIeWIng competItIOns under ArtIcle 6 are wholly Irrelevant and InapplIcable to the CIrcumstances In thIS case It submIts that the "fatal flaw" standard applIes only when there IS a gnevance by an employee allegIng a vIOlatIOn of ArtIcle 63 1 and has no applIcabIlIty when asseSSIng the exerCIse of management's dIscretIOn. Union Reply The Umon asserts that the Issue here IS not whether a developmental appoIntment should be made, but under what CIrcumstances the Employer can rescInd an appoIntment (a contract of employment) whIch has been made In ItS submIssIOn, ArtIcle 8 6.2 IS sImply not relevant. Instead, It submIts that It IS the contract of employment whIch governs and IS bIndIng. It contends that once an employer embarks on thIS process to fill a temporary posItIOn and makes the appoIntment, It cannot, at whIm, rescInd It. Instead, It asserts that the Mimstry must prove a ground sImIlar to the reqUIrements for settIng aSIde a contract, such as fraud or genUIne mIstake 7 Decision A. The Jurisdictional Issue ArtIcle 8 6.2 states "In no case shall any provIsIOn of thIS Central CollectIve Agreement wIth respect to the fillIng of, assIgnment or appoIntment to a vacancy apply to temporary assIgnments, except as provIded In ArtIcle 8 6 1 " The Employer asserts that thIS provIsIOn means that no provIsIOn of the collectIve agreement applIes to temporary vacanCIes (except those governed by ArtIcle 8 6 1) and therefore such matters are not revIewable by the GSB I cannot agree ThIS provIsIOn, by ItS terms, IS more lImIted than that. It means, except where ArtIcle 6 applIes pursuant to ArtIcle 8 6 1 no provIsIOns "WIth respect to the fillIng of, assIgnment or appoIntment to a vacancy apply to temporary assIgnments " It means ArtIcle 6 does not apply to temporary vacanCIes, except where the partIes agreed It does apply as set out In ArtIcle 86 1 It does not exempt all provIsIOns of the collectIve agreement In relatIOn to temporary appoIntments It exempts provIsIOns "WIth respect to the fillIng of, assIgnment or appoIntment to a vacancy" Other artIcles of the collectIve agreement, whIch do not deal wIth the fillIng of, assIgnment or appoIntment to a vacancy contInue to apply AccordIngly I conclude that ArtIcle 8 6.2 does not depnve the Board of JunsdIctIOn. B. The Standard of Review The Employer asserts, In the alternatIve, that the appropnate standard of reVIew IS one of good faith and reasonableness because ItS decISIOn to rescInd the appoIntments IS the same as the demal of a developmental opportumty AccordIngly It submIts that the standards set forth In Re OPSEU (Bousquet) and Ministry of Natural Resources supra, and Re OPSEU (Young et al. Group Grievance) and Ministry of the Attorney General, supra apply 8 In OPSEU (Bousquet) and Ministry of Natural Resources supra, the gnevor alleged, among other matters, that the Employer dIscnmInated agaInst the gnevor because he was a francophone when It demed hIm the opportumty to take a traInIng course The remedy sought was that the gnevor be allowed to take the course and be gIven developmental opportumtIes An ObjectIOn to the Board's jUnSdIctIOn was raised on the basIs that the Employer has unfettered dIscretIOn wIth respect to traInIng and development, and ItS decIsIOn therefore was not subject to reVIew by the GSB The Umon argued that the Board dId have jUnSdIctIOn to reVIew the decIsIOn of management where the nghts of employees found In the collectIve agreement may be adversely affected. SpecIfically the Umon alleged that "when the Employer In bad faith, does not furnIsh an employee wIth traInIng and development opportumtIes, the employee's nghts under ArtIcle 4 3 are undermIned where the employee would be put at a dIsadvantage In applYIng for a posted posItIOn." (Bousquet at p 20) ArtIcle 4 3 provIded that "In fillIng a vacancy the Employer shall gIve pnmary consIderatIOn to qualIficatIOns and abIlIty to perform the reqUIred dutIes Where qualIficatIOns and abIlIty are relatIvely equal, length of contInUOUS servIce shall be a consIderatIOn." There IS sImIlar although stronger language In ArtIcle 6 3 1 of the collectIve agreement. The Board agreed wIth the Umon, findIng that even though decIsIOns about traInIng and developmental opportumtIes were an exclusIve management nght, management's dIscretIOn must be exercIsed In good faith. The Board stated at pp 24-25 "WhIle management may exerCIse the exclusIve nghts granted to It WIth a good deal of Impumty they must be exercIsed, at least, In good faith." The Board concluded at pp 35-36 9 [I]f It could be demonstrated that the Employer had dIscnmInated agaInst the Gnevor In denYIng hIm traInIng and development opportumtIes wIth a VIew to undermInIng hIS advancement opportumtIes under artIcle 4 then ItS actIOns could not be said to have been camed out In good faith, for genUIne government purposes There IS nothIng In the collectIve agreement that reqUIres the Employer to consIder the advancement opportumtIes of employees However It cannot use ItS management nghts In a way whIch would amount to a delIberate attempt to Interfere wIth an employee's nght to compete for a promotIOn. The employer cannot delIberately tIlt the field wIth a VIew to preferrIng one employee over another However where In good faith and for genUIne government purposes an employee IS demed a traInIng or development opportumty where the demal IS not founded on a deliberate attempt to undermIne the employee's opportumtIes for promotIOn, the decIsIOn wIll not be Interfered wIth. Bousquet makes clear that there IS no enforceable "nght" to a developmental opportumty and there IS no nght Independently to gneve the demal of such a traInIng opportumty As set forth In Bousquet the demal of such an opportumty IS arbItrable solely on the basIs that such opportumtIes Impact an employee's abIlIty to compete for posItIOns under ArtIcle 6 It IS a denvatIve nght, not an Independent one The same conclusIOn was reached In Re OPSEU (Young et aL Group Grievance) and Ministry of the Attorney General, supra. ThIS case, however does not Involve IndIVIduals who were demed a developmental opportumty It Involves IndIVIduals who were awarded such opportumtIes and then depnved of them, on the basIs of allegatIOns that there had been cheatIng dunng the competItIOn. In thIS case, management agreed to follow a competItIve process to award temporary ISS posItIOns To that end, It held a competItIOn for mneteen temporary ISS posItIOns of "up to SIX months duratIOn." It completed that competItIOn, and offered the temporary posItIOns to the gnevors who accepted them. The pIvotal questIOn IS under what CIrcumstances may the employer rescInd the temporary appoIntments made? It IS not a questIOn of what standard applIes when the employer demes an employee a developmental opportumty Here the developmental opportumty was awarded 10 and the appoIntments were made The Issue IS under what CIrcumstances the employer may rescInd these temporary appoIntments The startIng pOInt for determInIng the standard under whIch the employer may rescInd an appoIntment to a temporary vacancy IS a determInatIOn of the nature of the nghts created by the appoIntment. ThIS IS a fundamental pOInt of contentIOn between the partIes, WIth the Umon assertIng that a contract of employment IS created and the Employer assertIng that a gratUItous benefit IS created. In my VIew the fact that the appoIntments are not governed by ArtIcle 6 IS not matenal Under ArtIcle 63 1 "[w]here qualIficatIOns and abIlIty are relatIvely equal, semonty shall be the decIdIng factor " Under thIS provIsIOn, the semor applIcant has an enforceable nght to be awarded the posItIOn If hIS or her qualIficatIOns and abIlIty are relatIvely equal No sImIlar nght eXIsts for temporary vacanCIes whIch are not governed by ArtIcle 6 That does not mean, however that an employee who has been awarded a posItIOn In a competItIOn not governed by ArtIcle 6 has no nghts at all In relatIOn to the awarded posItIOn. Although employees have no enforceable nght to the posItIOn based on theIr semonty theIr nght stems from the fact the posItIOns were awarded to them As the Umon asserts, a "contract of employment" IS created by the Employer's offer of the temporary assIgnments to the gnevors and the gnevors' acceptance of them But any IndIVIdual contract of employment In a collectIve bargaInIng regIme must be consIstent WIth the collectIve agreement. So the questIOn remaInS - under what CIrcumstances does the collectIve agreement permIt the employer to rescInd such temporary appoIntments The Umon submIts that the employer must 11 establIsh eIther IndIVIdual mIsconduct or that the competItIOn process was fatally flawed. For the folloWIng reasons, I cannot agree to eIther standard. The Umon's contentIOn that IndIVIdual mIsconduct must be establIshed IS tantamount to assertIng that the employer must have Just cause to rescInd a temporary appoIntment. Although, as I concluded above, the provIsIOns of the collectIve agreement apply to temporary appoIntments, there IS no provIsIOn In the collectIve agreement whIch deals wIth the reSCISSIOn of temporary appoIntments of the type whIch occurred In thIS case There IS nothIng about It In ArtIcle 8 nor In any other provIsIOn of whIch I am aware ArtIcle 21 DIscIplIne and DIsmIssal, does not apply because the reSCISSIOn of a temporary appoIntment IS neIther "dIscIplIne" nor a "dIsmIssal" It IS not a "dIsmIssal" because the gnevors contInue to be employed - albeIt In theIr home posItIOns A dIfferent sItuatIOn may anse where the reSCISSIOn of a temporary appoIntment IS tantamount to a dIscharge of employment. See eg Re OPSEU (Ambrey) and Ministry of the Attorney General GSB No 429/84 (Knopf:) Re AMAPCEO (SteYf,art) and Ministry of Municipal Affairs and Housing GSB No 0842/99 (Abramsky) Consequently to rule that the employer must establIsh IndIVIdual mIsconduct In order to rescInd a temporary appoIntment would Impose a reqUIrement that IS not found In the collectIve agreement and would be InCOnsIstent WIth the collectIve agreement. In so rulIng, I am sensItIve to the fact that the temporary ISS appoIntments were rescInded based on allegatIOns that cheatIng occurred dunng the competItIOn. ThIS fact, by Itself, does not render the decIsIOn to rescInd the appoIntments "dIscIplInary" In nature There was no assertIOn by the Umon that the reSCISSIOn was a dIsgUIsed form of dIscIplIne Nor was there any eVIdence that the reSCISSIOn forms any part of the employees' records or that It would adversely Impact them In the 12 future If that were the case, ArtIcle 21 mIght arguably apply But nothIng of that sort was alleged In thIS case I also conclude that a competItIOn standard IS not applIcable Those standards apply when an employee gneves the outcome of a competItIOn under ArtIcle 6 In thIS case ArtIcle 6 IS not applIcable The semor applIcants have no nght to be awarded the posItIOns, even where theIr qualIficatIOn and abIlIty are relatIvely equal Consequently the standards for settIng aSIde a competItIOn (and the resultIng appoIntment) are not applIcable What occurred here was not a challenge to a competItIOn or even sImply the cancellatIOn of a competItIOn. Instead, the employer rescInded the gnevors' temporary appoIntments made pursuant to a competItIOn. AgaIn, the pertInent questIOn IS under what CIrcumstances the collectIve agreement permIts the employer to rescInd such appoIntments Under ArtIcle 2, management has the exclusIve nght to "appoInt" employees, "subject only to the provIsIOns of thIS Central CollectIve Agreement and any other CollectIve Agreement to whIch the partIes are subject." As noted, there IS no specIfic provIsIOn In the collectIve agreement whIch deals wIth thIS Issue There IS nothIng In ArtIcle 8 that deals wIth the power of the employer to rescInd or cancel a temporary appoIntment, and ArtIcle 21 does not apply SImply stated, there IS nothIng In the collectIve agreement that specIfically lImIts management's abIlIty as part of ItS appoIntment power to rescInd a temporary appoIntment of the type at Issue In thIS case Arguably then, management would be free under ArtIcle 2 to rescInd a temporary appoIntment wIthout restnctIOn. But the case law IS clear that the employer may not exerCIse ItS managenal powers In a way that Improperly undermInes employee nghts protected by the collectIve agreement. 13 Although, as held In Bousquet, supra, employees have no Independent nght to a developmental opportumty (or to a developmental temporary assIgnment) management "cannot use ItS management nghts In a way whIch would amount to a delIberate attempt to Interfere wIth an employee's nght to compete for a promotIOn." (Bousquet at p 35) It must act In "good faith." The eVIdence In thIS case establIshed that the temporary ISS posItIOns at Issue were developmental opportumtIes The Umon had requested that a fair and competItIve process be adopted for staff Interested In developmental opportumtIes, Instead of appoIntments beIng made dIrectly by management. Management agreed and the temporary ISS posItIOns "for up to SIX months" duratIOn were posted. In my VIew just as the demal of such a developmental opportumty IS arbItrable on the basIs that such an opportumty Impacts an employee's abIlIty to compete for posItIOns under ArtIcle 6 the reSCISSIOn of such an opportumty must also be arbItrable The Impact IS the same - the reSCISSIOn negatIvely Impacts the employee's abIlIty to compete for posItIOns under ArtIcle 6 of the collectIve agreement. In thIS case It also resulted In a loss of pay In Re OPSEU (Young et aL Group Grievance) and Ministry of the Attorney General, supra, I revIewed the "good faith" standard as set out In Bousquet I concluded at pp 14-15 The Board In Bousquet extensIvely revIewed the junsprudence regardIng what constItutes "good faith." The Board adopted, essentIally a two-part standard. The first reqUIrement IS the absence of bad faith, i.e the decIsIOn must not be Improperly motIvated or malIcIOusly Intended. The second reqUIrement IS a reqUIrement of "reasonableness" - the "elements of reasonableness and a ratIOnal relatIOnshIp between the facts leadIng to the makIng of the decIsIOn and the decIsIOn Itself" (Bousquet at p 62) "Where there IS some eVIdence permIttIng an ObjectIve assessment that the decIsIOn flowed logIcally from the facts, the Employer wIll have satIsfied the second aspect of the good faith test (reasonableness)" (Bousquet at p 63) The Board concluded, at pp 63-64 All of the cases emphasIze that In cases InvolvIng the exerCIse of managenal dIscretIOn, the Board wIll hesItate to SubstItute ItS vIew for that of the employer 14 as long as certaIn mImmum tests are met. These Include the reqUIrement that the decIsIOn be a genUIne one related to the management of the undertakIng and not a dIsgUIsed means of aChIeVIng ImpermISSIble ends based on dISCnmInatIOn or other grounds unrelated to the makIng of genUIne management decIsIOns The facts consIdered In makIng the decIsIOn must be relevant to legItImate government purposes Also In makIng ItS deCISIOn management, provIded It has acted In good faith, as above descnbed, need not be correct. AccordIngly I conclude that whIle the employer's offers of the temporary assIgnment to the gnevors and theIr acceptance created IndIVIdual "contracts of employment" those contracts must be consIstent WIth the collectIve agreement. Under the collectIve, management has the nght to "appoInt" employees, "subject only to the provIsIOns of thIS Central CollectIve Agreement and any other CollectIve Agreement to whIch the partIes are subject." As there IS no provIsIOn lImItIng management's nght to rescInd such appoIntments, management may rescInd them, provIded It does so In "good faith." The "good faith" standard, as set forth In Bousquet IS sufficIent to prevent abuse by the Employer It would preclude the Employer from rescIndIng an appoIntment at whIm, or because management does not lIke the results of a competItIOn, or prefers to keep the Incumbents on the Job The decIsIOn must be made In good faith and for ratIOnal busIness reasons I also cannot stress enough that thIS decIsIOn IS lImIted to ItS specIfic facts In other cases, the facts may be dIfferent and lead to addItIOnal arguments such as estoppel or addItIOnal arguments based on the collectIve agreement. One final note I found thIS case very dIfficult to decIde, In part, because there are very strong eqUItIes on both sIdes The Umon and the employees waited a long tIme for a competItIOn to be held 15 for these developmental appoIntments It finally took place and the gnevors were successful and were awarded the temporary posItIOns Then, due to allegatIOns of cheatIng, the appoIntments were rescInded. The frustratIOn of that has to be Intensely acute There was also an economIC loss The Employer conversely dId not have to post these posItIOns but agreed to do so It went through a lot of tIme expense and effort to conduct a fair competItIOn. It completed that process, awarded the posItIOns and then was confronted wIth credIble allegatIOns of cheatIng. It was concerned that the competItIOn process be, In fact, and be seen as fair so It cancelled the competItIOn and rescInded the appoIntments The frustratIOn of that must also be Intense My Job however IS determIne the legal standard under whIch the employer may rescInd the temporary ISS appoIntments at Issue In thIS case, and after much consIderatIOn, I have done so The Employer must now apply those standards and advIse the Umon of ItS conclusIOns Normally I would apply the standard establIshed to the facts myself, but It was agreed, at the start of thIS second phase of the proceedIng, that I would only determIne the standard whIch applIed and that the Employer would consIder and apply It. I shall, however remaIn seIzed. To conclude: 1 ArtIcle 8 6.2 does not oust the Gnevance Settlement Board of JunsdIctIOn to reVIew the reSCISSIOn of the temporary ISS appoIntments at Issue In thIS case 2 The employer's offers of the temporary ISS assIgnments to the gnevors and theIr acceptance of those offers created IndIVIdual "contracts of employment." 3 These IndIVIdual contracts of employment, however must be consIstent WIth the collectIve agreement. 4 Under ArtIcle 2 of the collectIve agreement, management has the exclusIve nght to "appoInt" employees, "subject only to the provIsIOns of thIS Central CollectIve Agreement and any other CollectIve Agreement to whIch the partIes are subject." 16 5 There IS nothIng In the collectIve agreement that deals wIth the reSCISSIOn of such temporary appoIntments, or lImIts management's nghts In thIS area. 6 Nevertheless, management, consIstent WIth the Board's decIsIOn In Bousquet must act In "good faith." 7 The Employer must now apply that standard to the facts In thIS case 8 I shall remaIn seIzed. Issued at Toronto thIS 31 st day of January 2003 RandI Abramsky Vice-Chair