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HomeMy WebLinkAbout1992-0518.Ghiandoni.96-08-16 I ; ; ~"l'" t~"' ~..~1' ~"r'~i' '<-; ~. .. ~~, "ft ~~ ,~.}~ ~~{ ~:,~' \~..' ONTARIO EMPLOYES DE LA COURONNE . " \.'::.: li!lt"l, " ',' CROWN EMPLOYEES DE L'ONTARIO ~, ., 'r ,,~~ I ,If ,t) 11111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT .' ..' BOARD DES GRIEFS 180 DUNDAS STREET WEST; SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST; BUREAU 2100, TORONTO (ON) M5G 118 FACSIMILE/TELECOPIE (416) 326-1396 GSB # 518/94, 519/94 OPSEU # 94A828, 94A829 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Ghiandoni) Grievor - and - The Crown in Right of ontario (Ministry of the Solicitor General & Correctional Services) Employer BEFORE L. Mikus Vice-Chairperson FOR THE A. Ryder GRIEVOR Counsel Ryder, Wright, Blair & Doyle Barristers & Solicitors FOR THE J. Benedict EMPLOYER Manager, Grievance Administration & Negotiation Ministry of the Solicitor General & \ Correctional Services HEARING May 25, 1995 September 22, 1995 ~~--- --- --- - - ------- - ----- - - ---- --- I " , The gnevor, Greg Ghiandoni, was employed as an unclassified ProbatIon and Parole Officer in the Manitowaning office, a satellite of the Sudbury Parole SefVlces Board. He was lured in May of 1991 and Ius contracts were renewed every six months until 1994 His last contract was not renewed and, as a result, the grievor contends that he was disciplined and dismissed without Just cause in that "the employer abused the investigation procedures of the Ministry's harassment policy in an attempt to intimidate me from exercising my rights and to defame me in violation of Articles All and A 1.2 of the collective agreement" The grievor asks that he be reinstated to his former position, compensated with interest for all lost wages, benefits and credits and that any reference to the unjust dismissal be removed from his personnel records. He also asks for a declaration that the Area Manager of the Probation and Parole Office and the Regional Personnel Administrator acted inappropriately and for an order that the Employer cease harassing him. The Umon takes the position that the failure to renew the grievors contract was based on the fact that the grievor sought the protection of his Umon with respect to his complaint regarding a Job postmg. It also took the position that the Board has the jurisdictIOn to interfere with the non-renewal of an unclaSSIfied employee's contract if it can be shown that the decision was made in bad f8.1th. The Employer takes the posItion that the grievor's contract was not renewed pursuant to Sections 8 and 9 of the Public Service Act and therefore this Board has no jurisdiction to interfere with the Employer's deciSIOn. 1 ~ I 2 THE FACTS The grievor began working for the Sudbury ProbatiOn and Parole office in May of 1988 as a Probation and Parole Officer 1 His contract at the time was for four months. When that contract expired in September of 1988, it was not renewed. The grievor was hrred again as an unclassified Parole Officer In May of 1991 and until January of 1992 worked in the Espanola office. In January of 1992 he transferred to the Manitowanmg office on Mamtoulin Island. Between May of 1991 and February 21, 1994, the grievor was continuously employed on six-month contracts as an unclassified Parole Officer During that time his perfonnance appraisals were good and there were no complamts about lus work. In 1993 and 1994 he received a letter commending him for perfect attendance. In March of 1994 the grievor's position was posted as a classified Probation and Parole Officer position pursuant to the collective agreement. The grievor intended to apply for that position but before he could do so, the posting was rescinded and the position was subsequently awarded as a lateral transfer to another employee. The grievor testified that he was angry and upset about the lateral transfer and spoke to his Union representative, Mr Larcher They met with Mr Ken Graham, Personnel Manager, who adVIsed him that they were allowing the lateral transfer on compaSSiOnate grounds in accordance With the collective agreement. The grievor advised Mr Graham that he would be hearing from lum and returned to work on Manitoulin Island. Shortly thereafter the gnevor received a letter dated April 12, 1994, from Mr Gary Bate, Area Manager, which stated as follows. As discussed with you at our meeting of April 11 , 1994, and telephone conversation of April 12, your contract will not be renewed contingent upon the arrival date of the P.P 0 transferring to the Manitowaning office on a lateral transfer We also discussed that a contract position as aP .P.O. would be available to you in Kirkland Lake should you deCide to accept. The commencement date would be May 16 and your contract at the Manitowaning office would be extended to that date, If you are not prepared to accept the Kirkland Lake contract position, your contract at the 3 Manitowaning office will expire July I 1994. I would appreciate a response no later than April 15, 1994 Should you have any questions, please contact me, On April 15, 1994, Mr Bate called the gnevor advising him that he had his contract for Kirkland Lake. The grievor advised him that he would be hearing from him in the future. The grievor then called Mr Peter Slee, an Union representative, who advised him to write a letter setting out lus concerns of the lateral transfer The grievor wrote a letter dated April 18, 1994, to Mr Bate wluch stated as follows. I have received your offer and sought advice from the Union regarding this matter and legitimacy of a lateral transfer to Manitowaning. I will respond to your offer of a contractual position for a Probation and Parole Officer in Kirkland Lake upon clarification from Union representative. On Wednesday, April 20, 1994, the grievor received a message on his answering maclnne advismg him that Mr Bate wanted to see him in the Regional Office on the following Fnday On Friday, that is April 22, 1994, Mr Graham, Mr Bate, Mr Larcher and the grievor met. At the commencement of the meeting the grievor referred to Mr Bate's letter of April 12, 1994, but was adVIsed that the Issue for that meeting was not the lateral transfer or the offer of the position m Kirkland Lake. The grievor was advised that the Employer had received some information regarding the grievor's background and wanted to start an informal InvestIgation based on that information. They asked if the grievor had been angry when the person he was replacing had been transferred as a classified employee to Sudbury The grievor denied that he was angry over that transfer The grievor was then \ advised that the employer had received some complaints regarding his performance as a parole officer There were no specific complaints cited at the meeting and the gnevor advised them that he wanted the allegations in wnting. At that point Mr Larcher suggested that these allegatIons amounted to harassment and advised the grievor not to answer any more questions. The grievor was 4 suspended with pay depending on the outcome of the mvestigation. As a result, he filed the first grievance alleging unjust discipline and harassment, On April 27, 1994, the grievor received a letter from Mr Bate that stated as follows This letter is in reference to your unclassified contract status WIth the Manitowaning ProbatJ.on and Parole Office, Please be advised that your unclassified contract will not be renewed. Effective April 24, 1994, your unclassified contract expired, but, per the Employment Standards Act, you will receive 8 weeks salary in lieu of notJ.ce. Please contact the Wlderslgned no later than one week upon receipt of tlus registered letter to arrange to pIck up your personal belongings at the Manitowaning Probation and Parole Office and also at that time to return MinIstry property such as keys, case notes, etc, The gnevor testified that after the April 22, 1994, meeting no mention was made of the offer in Kirkland Lake. The grievor was asked whether he would have accepted that offer and lus response that "it would have been a tough deCision to make" In cross-exammation, the grievor acknowledged that he had a meetmg with Mr Bate m December of 1993 regarding the posting of lus pOSItion. He acknowledged that Mr Bate had explamed the lateral transfer file and that it was possible the gnevor would not be awarded the Job He acknowledged that at the time he was upset With the process. He also conceded that he had spoken to Mr Larcher about the lateral transfer before the lrutial posting of March 29, 1994 In cross-examination the grievor recalled a meetmg on April 11, 1994, With Mr Bate at which tIme the pOSItion m the Kirkland Lake office was discussed. He agreed that Mr Bate had asked for a response by April 15, 1994, with respect to that position and agreed that his response was not forwarded until April 18, 1994 The gnevor also aclmowledged that his contract was to have expired 5 on April1?, 1994, but stated that it was not unusual for people to work Without a contract and that, in the past, his own contracts had been renewed at the last minute. Mr Ken Graham, the Area Personnel Admirustrator for the Sudbury office, has been With the Mirustry for 24 years. His area of responsibility at the tune of the grievance mcluded the territory from Barne to Cochrane, It was his responsibility to monitor the contracts for unclassified employees and to interview applications for job competitions. He prepared the original posting and testified that he had amended it two days later because it had been determined that there were not three potential candidates Within the search area. The original posting limited the area of search to employees of the Ministry of Solicitor General and Correctional Services in the Sudbury, Espanola and Manitoulin area. The amended posting restricted the applicants to employees of the Ontario Public SeMce and the Northern Region. It was his eVidence that the vacancy in the Marutowarung office arose as the result of a successful lateral transfer to the Sudbury office by another parole officer in the Marutowarung office. According to artlcle A.4 of the collective agreement, classified employees can request a lateral transfer Before the posting, Mr Graham reviewed the lateral transfer list. He noted that there was one application from a parole officer who was on a leave of absence from Toronto and was working temporarily in Sudbury He determined that person was qualified and contacted her With respect to the transfer She declined and, as a result, the job was posted, Shortly thereafter Mr Graham received a call from Ms, PatriCia Geroux, a Parole and Probation Officer, who asked why her application for transfer had not been conSidered, Mr Graham checked the list again and discovered that she had put an apphcatlOn in for the Sudbury area. It was her understanding that request included the Espanola and Manitowaning offices. When Mr Graham I I I 6 had reVIewed the list he understood that her application was only for the Sudbury office. She advised hun that she wanted to move to the area for compassIonate reasons because her parents, who lived in the area, were elderly and she wanted to move closer to them. Subsequently she was offered the pOSItion in the Manitowamng office and was to take over the pOSItion on July 24, 1994 Mr Graham was referred to the Appointment to Unclassified Service contract for the grievor which stated the effectIve date was April 25, 1994, and the expiry date June 17, 1994 He explained that the contract was dated in such a manner to comply to the Employment Standards Act which required that employees be given eight weeks notice if theIr contract was not to be renewed. Mr Graham was asked about the meeting of April 22, 1994 He stated that the purpose of the meeting was to deal with a number of complaints they had received about the grievor It was his evidence that Mr Bate asked the gnevor two or three questions about these complamts at wluch pornt the gnevor became very agitated. After a short caucus the grievor and Mr Larcher came In, stated that they refused to answer any more questions and called the meeting a charade, Mr Bate told the grievor that he mtended to rnvestlgate these complaints and adVIsed lum not to report to his office 1n Mamtowanmg. The meetmg lasted about ten or twelve minutes. Mr Graham testified that he had a meeting with the grievor prior to that meetmg some time during the first week of April. At that time the grievor asked hun about the vacancy and the lateral transfer list, He was agitated when Mr Graham tried to explain that classIfied employees had the first right to a vacancy The grievor felt that the position was lus, that he had been doing it for a long time and I I I . ---- 7 was upset about the fact that classified staffhad more nghts to the position than he dId, In cross-examination Mr Graham conceded that the complaints from staff accrued after the grievor had been to see his DOlon. When he was asked whether he knew that the grievor was objecting to the lateral transfer before the meeting of April 22, 1994, Mr Graham responded "likely" Mr Gary Bate is the Area Manager for the Sudbury Probation and Parole Office. He is responsible for 24 staff members wluch mcludes 15 parole and probation officers and eight support staff. His area of responsibilIty includes Sudbury, Espanola and Manitowaning. He testified that he viSIted each office once a month and discussed concerns with respect to cases, checked the files and communicated with staff on a regular basis. It was his evidence that he spoke with the gnevor in December of 1993 with respect to filling of a parole officer vacancy that had occurred as a result of a retirement. Mr Bate told him about the lateral transfer request from a probation officer and felt obliged to advise the grievor as to the process. He explained that the pOSItion would first go to the redeployment of surplus staff If it cleared that stage, they would look to the lateral transfer lIst and, lfthere were no lateral transfer requests on file, It would be posted for competition. Mr Bate stated that the grievor was upset and Mr Bate suggested that if he disagreed with what he had been told he should check WIth his DOlon. Mr Bate testified that up to that pomt 10 time, his general assessment of the gnevor as a probatlOn officer had been satisfactory The grievor met all the reqwrements of the Job, lus reports were done on time and he saw no problems with his work. He described his working relatlOnslup With the 8 gnevor as cordial. As a result of the second lateral transfer request Mr Bate asked the grievor to come to his office for a meetIng on April 11, 1994 He advised him that they had accepted the lateral transfer request and the that posting would be Withdrawn. He told him that there was a contract position in Kirkland Lake and offered it to him. He stated that the grievor was extremely upset at the time. Mr Bate stated that he did not put a tune linnt on the Kirkland Lake offer but reminded the grievor that his contract was to exprre shortly Mr Bate testified that he did not hear from the grievor by April 15, 1994, so he telephoned him at home and asked }urn If he had come to a decIsIon. He told him that there was some urgency m responding because his contract was to expire in two days. The grievor told bun that a reply would be forthcoming. Mr Bate explamed that the gnevor's contract was extended as a result of that conversation. The gnevor had not deCIded whether to take the Kirkland Lake offer and Mr Bate extended his contract to give him time to consider It. Mr Bate gave evidence about the meetmg of April 22, 1994 He stated that the meeting came about because he had received a number of complaints from employees m Ins area. As a result of those complamts he felt that he needed to meet With the gnevor and Ins Union representative, Mr Bate personally contacted Mr Larcher and set up a meeting at the office m Sudbury Mr Bate explamed at the meeting that he had become aware of informatIOn and that he wanted to ask the gnevor questIons about that information. By the time he had asked two of his three questions, the gnevor - -- ..--- 9 became very arumated, called the meeting a charade and refused to answer any more questions. The grievor asked him to 'put his complaints in wnting and left the meetmg, Because he did not know whether the gnevor intended to accept the Kirkland Lake offer, Mr Bate sent lum the April 27, 1994, letter advlsmg him that his contract had expIred and would not be renewed. When Mr Bate was asked why he decided not to renew the grievor's contract, he responded that it was principally . because they had filled his position with a lateral transfer and his contract had expired. He also stated that it was because he had received no answer to the Kirkland Lake offer and because of the events of the week of April 18 - 22, 1994, mcluslve. In cross-examination Mr Bate agreed that the grievor had worked without problem and that there was nothing in hIs file or his appraIsals suggesting there had been complamts about hIm. He also agreed that he met with all of the staff at the Manitowaning office once a month and that pnor to April 18, 1994, no one had approached lum with any complamts about the grievor Mr Bate stated that he had spoken to a co-worker of the grievor and that there appeared to be a lot of tenSIOn between them, although he conceded that tensIOn did not interfere with the grievor's career prospects. He also agreed in cross-examination that he had receIved no complamts concernmg the gnevor from any of the judges or court officials the gnevor worked WIth on a regular baSIS. Mr Bate stated that as of April 15, 1994, he mtended to renew the gnevor's contract as a Parole and Probation Officer and, in fact, extended his contract for a week in order to gtve hIm time to make that deCision. Mr Bate also conceded that he was aware as of that date that the grievor objected to the awarding of the Manitowaning position as a lateral transfer He denied being aware of the fact that the Union objected to that transfer as well. 10 With specific reference to the complamt, Mr Bate testified that no formal complamt had been made to mm about the grievor but he had received verbal statements he felt required more investigatIon. Those complaints came from two employees in the Manitowaning office. Mr Bate testified that he did not initiate the calls, nor did he prompt them. The complaints came to his attention between April 18 and April 22, 1994 As a result of those complamts, he formulated questions he intended to ask the grievor at the meeting. One of them concerned a statement he allegedly made to a co-worker about the person who got the posting, another one dealt with how he felt he had been treated. He agreed that those questions did not relate to the grievor's performance so much as to his reactIOn to the job competition. ARGUMENT The Union took the position that there were two issues for this Board to determine. The first is whether It is withm the jurisdiction of the Board to review an employer's decision not to renew an unclassified employee's contract if that decision was made in bad faith. The second issue is whether bad faith did, m fact, playa role in this Employer's deCISion not to renew the gnevor's contract. It based its argument on the fact that the deCision was motivated m whole or in part by the fact that the gnevor had sought and obtamed the Umon's intervention. \ It was subnutted that the first issue was addressed in Re Ministry of Correctional Services and OPSEU (Jarri) (May 23, 1995) GSB #933/91 (Dissanayake) The Umon took the pOSition that the Jurisprudence respecting that issue is found at page 29. Therefore, if the Employer acted in "bad faith" ill the sense of retaliating against the grievor for seeking asSIstance from the Union, by not renewing his contract, that exercise of the Employer's authority has the effect of 11 lUldennining the grievor's right to grieve, As m cases such as Re Pitirri, Re Merson, and Re Dunlop, the factual basis here which gave rise to the W1dermining of Collective agreement rights, namely the seeking of assistance from the Union, arose while the grievor was still an Employee, As m those cases, here the Employer made a conscious decISion not to renew the gnevor's contract That decision was also made while the grievor was still an Employee, The Union alleges that if not for the bad faith, the decision would have been made to renew If that happened, the grievor's contract would have been extended for a further period and he would not have ceased to be a public servant lUlder Section 9 of the Public Service Act. Therefore, the Employer's bad faith decision (if proved) will be directly linked to the lUldemuning of the Collective agreement rights. F or those reasons, followmg the reasoning in the previous decisIOns sighted above, the Board finds that these gnevances are arbitrable, The Union took the position that bad faith was evident in the facts. Firstly, management's explanation for its decision not to renew the grievor's contract is not credible. That deciSIOn was described by Mr Bate "as a direct result of not bemg advised of the gnevor's acceptance of the Kirkland Lake positIon, and because the employment date of April 24 was reached." As a result, the letter of April 27, 1994, was sent. However, the Union argued, the grievor's employment contract did not expire on April 24 , 1994, as claimed, Rather it expired on June 17, 1994 The expiry date of the contract does not explain the need to issue the letter of April 27, 1994 The claim that the letter had to be delivered eight weeks pnor to the exprry on June 17, 1994, lacks credibility because it was written on the understandmg that the contract expired on Apri124, 1994 The letter is clear that the eight week's salary, in lieu of notIce, was not, as Mr Bate clauned, deSIgned to coinCide With the last eight weeks of the contract. Indeed, if that was the case, the eight week period would have had to commence on April 22, 1994 Mr Bate stated that another reason for the deCiSion not to renew the gnevor's contract was the events which transpired In the penod of April 18 to April 22, 1994, concerning the alleged complaints by the gnevor's co-workers. The Uruon subffiltted that this additional reason also lacks credibility None of the "complaining employees" were called to give evidence. There IS no -- 12 corroborating evidence of any kind to support the allegation. More importantly, it defies belief that people who had worked With the grievor for some years without complamt, would suddenly and within the space of four days, voice complaints that were so fundamental that they resulted in the termination of the grievor's employment. Furthermore, the fact that these allegations occurred virtually contemporaneously with Mr Slee's conversation with Mr Graham, creates a suspicion which demands eIther an explanation, or, at the very least, some corroborating evidence to support the existence of the complaints. In other words, where the Employer relies on staff complaints to justIfy the termination of employment and where the tnmng of the complaints is suspIcious, to say the least, the Employer ought to provide corroboratmg evidence before It asks this Board to accept those allegatIOns. The Umon argued that between April 15 and April 21, 1994, management underwent a fundamental change of attItude toward the grievor The only intervening event which was clearly established 10 the evidence was the fact that the grievor sought and obtamed the intervention of the Union, Accordmgly, 10 the absence of any evidence to support management's allegatIOns of employee complamts, it was submItted that It IS reasonable to conclude that management's deCISion was a reactIOn to the mtervention by the Umon and the fact that the gnevor had sought the Umon's help With respect to the issue of remedy, the Umon submItted that the remedy ought to place the grievor in the position he would have been 10 but for the deCIsion taken against lum in bad faith. In the circumstances of tlus case, but for the bad deCIsion, the Employer intended to offer the grievor a contract at Kirkland Lake. Accordingly, the Umon asked that the Employer be directed to offer the 13 grievor a contract of equal duration as a Probation and Parole Officer together with compensation for lost income, with interest. until the new contract commences. It was also submitted that the arrears m compensation ought to take mto account the tax implications of a lump sum payment. In support of its position the Union referred the Board to Re The Ministry of Health and OPSEU (Ohrt)(May 6. 1990) GSB #250/88(Dissanayake), Re The Ministry of Correctional Services and OPSEU (Brian Miller and Clair MacPhail)(March 2, 1987), GSB #531/82 and #532/82 (Verity)and Re Ministry of Citizenship and OPSEU (Grinius)(July 24, 1995). GSB #1495/89, #1357/90, #1409/90. #1567/90 and #1568/90(Fisher). The:Ministry took the position that the Employer's deciSIOn not to renew an unclassified employee's contract is consistent with Sections 8 and 9 of the Public Service Act and IS, therefore. inarbltrable. A vacancy was created for a classIfied Probation and Parole Officer m the Manitowaning office. The gnevor was advised as early as December of 1992. how such a classified vacancy would be filled. The grievor does not seem to have taken this mformation well and became upset. He was adVIsed by Mr Bate to speak WIth lus Union representatIve. The Employer submItted that by operation of Article 4 of the collective agreement and the Mimstry's applicable policy. the classIfied posItion was filled by lateral transfer for compassionate reasons. The successful candidate was to take up her new posItion in the Manrtowaning office in July of 1994 The gnevor was offered employment as an unclassIfied ProbatIon Officer m Kirkland Lake and lus contract was extended so that he could make a deCIsion regarding that offer He never responded. The gnevor's unclassified appointment or contract was extended for eight weeks solely to meet the I I - --.- I . 14 requirements of the Employment Standards Act. The Employer took the position that there IS nothing in the evidence of Mr Bate or Mr Graham that would suggest bad faith or discrimmation in their decision not to renew the grievor's unclassIfied contract. In support of its position with respect to the right of the Employer to decide not to renew a contract, the Employer relied on the case of Re Ministry of Correctional Services and OPSEU (Humeniuk) (December 5, 1985), GSB #614/84 (Springate) wherein it was stated. There is nothing in the collectIve agreement or in the applicable statutes which guarantees contract employees the right to be reappointed, or which, in any way restricts management when it makes a deCIsion as to which contract employees are not to be renewed, Accordingly, the non renewal of a grievor's contract, which was not tainted by bad faith on the part of the Employer, did not mvolve a breach of either the Collective agreement or a relevant statute, It also referred the Board to the case ofRe Ministry of the Attorney General and OPSEU (Milks) (March 11, 1993),GSB #1000/92(Low), Re Ministry of Correctional Services and OPSEU (Houston and Campbell) (November 18, 1993),GSB #1799/90 and #1803/90 (Venty) DECISION Dealing first with the Issue of the jurisdictIOn of the Board, It IS clear that the Jafri decision stands for the proposition that if an employer's decision not to renew the contract of an unclassified employee was made for reasons which resulted m the undermming or abndgement of any right of an \ employee under the collective agreement, the employer's actions are reviewable by a Board of Arbitration, If the employer acted ill such a manner, the Jafri Board equated it to ".bad faIth." That panel stated that If the employer was retaliating agamst the grievor for seekmgassistance from the Uruon by not reneWing his contract, the exercise of the employer's authority would have the affect -- . 15 ofundermimng the gnevor's nght to gneve, If the Umon can prove that the employer's decision In the instant case was made in bad faith, it would be a direct link to the undermining of the grievor's collectIve agreement rights. On those grounds, this Board has the junsdictIon to reVIew the reasons for the Employer's decision not to renew the grievor's contract. The issue then becomes whether, in the ClTcumstances of this case, the Employer's deciSIOn not to renew the grievor's contract was based on the fact that he contacted the Union With respect to his right to a classlfied positIon. Some of the facts are indisputable. The grievor has had numerous six month contracts with the Employer datIng back to 1988 The gnevor has had two evaluatIons in that time, neIther of which could be characterised as negative. The grievor has never had any complamts made agamst lum by co-workers or other people he deals with in the perfonnance of his dutIes. The gnevor's positIon was posted as a classified position and was granted to another employee on the baSIS of the lateral transfer requrrements under the collective agreement. The gnevor was offered a posItion In Kirkland Lake as late as April 15, 1994 Some time between April 18 and April 22,1994, the Employer received complaInts from the grievor's co-workers, As a result of those complaints and because the grievor did not respond to the Kirkland Lake offer, the Employer deCIded not to renew lus contract. \ As can be seen from those facts, until April 15, 1994, the Employer was quite prepared to offer another contract position to the grievor There was no suggestIon of bad faIth regardmg the Employer's decision to award the full tune classified position to another employee. However, the I - -- - - -.--- 1 w . 16 same can not be said with respect to the Employer's treatment of the grievor Sometime between April 15 and April 22, 1994, the Employer changed its mInd about the grievor's positiOn In Kirkland Lake. The Employer suggested It was because the grievor had not responded to that offer by the date indicated. Although that may be one of the reasons for the decision not to renew the grievor's contract, I cannot ignore the fact that the Employer relied on alleged complaints made by co-workers in arriving at a decision not to renew the grievor's contract. Those complaints were never placed before this Board, No witnesses were called to repeat them directly before the Board or the gnevor I am unable to explain why the Employer would place so much credence in those complaints given their vagueness and timing. In my Ylew the only reason the Employer relied on those alleged complaints was to buttress its deciSion not to renew the gnevor's contract. While I accept that, in part, the decision not to renew the gnevor's contract was motivated by lus failure to respond to the Kirkland Lake offer, nevertheless, I am constraIned to find that it was also motivated In some part by the gnevors deciSiOn to Include the Union In his objection to the lateral transfer There IS Simply no other reason to explam the Employers change of position. Having found that the Employer did, in part, rely on the grievor's request that the Uruon mtervene on his behalf, the Issue then becomes what, if any, remedy the gnevor should be granted. It IS accepted that In reinstating a gnevor, Boards of Arbitration attempt to place the grievor, to the extent possible, in the position he/she would have been In but for the Employer's actions, In most cases that IS not a difficult assignment. Given the recent developments m the public sector, specifically the actual and proposed reduction of staff m all levels of the public service, It IS more difficult in the crrcumstances of this case. Nevertheless, what is reasonable based on the eVidence before me IS the j ~ ~ w >0 17 conclusion that, but for the bad faith consideration and in accordance with the usual practice, the grievor would have had his contract .extended in April of 1994 for another six. months. Whether he would have had further extensions at the end of that contract would depend on numerous factors, includmg the Employer's operational reqUIrements at the time. We can only speculate as to what those factors might be. However, the Board is satisfied that but for the bad faith of the Employer, the gnevor's contract would have been renewed for another SIX months. The grievor then IS entitled to a declaranon that his contract was not renewed, m part, because of the exercise of his rights under the collective agreement. I direct the parties to attempt to agree on the appropriate remedy to address tills breach. If the parties are unable to agree and, given the extraordinary recent events in the public sector, I would ask the parties to make submissions to this Board as to the appropriate remedy in these circumstances, I will remain seized of tlns matter pending notification by the parties of the results of theIr endeavours. Signed tln~h day of August, 1996 \ /aAfl/A ~ Loretta Mikus, Vice-Chair - -.- -. - --- -----.-