Ontario Public Service Employees Union v. The Crown in Right of Ontario (Ministry of the Attorney General), 2002 CanLII 45781

GSB#1455/00, 1456/00

UNION#01B024, 01B025

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union

(Young et al/Group Grievance)

Grievor

-and-

The Crown in Right of Ontario

(Ministry of the Attorney General)

Employer

BEFORE Randi H. Abramsky Vice-Chair

FOR THE UNION John Brewin

Counsel

Ryder Wright Boyle & Doyle

Barristers & Solicitors

FOR THE EMPLOYER Melissa Nixon

Senior Counsel

Legal Services Branch

Management Board Secretariat

HEARING May 22 and May 23, 2002.

AWARD

In May 2000, the Ministry of the Attorney General distributed a “call for interest” memo to “[a]ll full-time staff, Hamilton Court” regarding a training opportunity for a back-up Trial Co-ordinator and back-up Judges’ Secretary positions. The “call for interest” was limited to full-time classified employees. A group of unclassified employees at the Hamilton Court grieved “that management is not allowing the unclassified employees the right to equally apply and temporarily fill job posting for backfill to the Trial Co-ordinator and Judges Secretary as per Articles 6 & 8 of the collective agreement and the Human Rights Code.” At the hearing, the grievance was limited to the backfilling the Trial Co-ordinator’s position.

Facts

In 1995, the position of Trial Co-ordinator was created for the Hamilton Courts. It is a classified, OAG-10 position, and from 1995 to mid-2000, it was held by Ms. Lorraine Baynton. The Trial Co-ordinator position is a very important position within the courts. The incumbent is responsible for coordinating and scheduling pre-trials and trials.

In light of the importance of the Trial Coordinator position, whenever the incumbent is ill or on vacation, another employee must be brought in to perform the job, or backfill the position. From 1995 to mid-2000, when Ms. Baynton was absent, she was backfilled either by Mary Matjanec, a regular part-time classified employee, Lori Peters, another classified employee, or Martin Tosoian, an unclassified court clerk. From time to time, there may have been other employees, classified and unclassified, who backfilled the position. According to Ms. Betty MacDonald, Supervisor of Court Support Personnel from January to June 2000, she would replace Ms. Baynton with Mary Matjanec and when she was not available, Mr. Tosoian would be selected.

According to Ms. MacDonald, in early 2000, she received a number of complaints from classified employees that the backfill opportunities for the Trial Co-ordinator position were limited to so few people. In addition, according to Ms. Cathy Hiuser, Manager for Court Operations in Hamilton, in early 2000, concerns were raised by the judiciary about the need for consistency in the backfilling of the Trial Co-ordinator and Judges’ Secretary positions. These concerns led to discussions between Ms. MacDonald and Ms. Hiuser, along with Mr. Bill Yeadon, in Human Resources. Mr. Yeadon came up with the idea of the “call for interest” to determine who might be interested in serving as the backup Trial Co-ordinator and backup Judges’ Secretary and to review their qualifications. Ms. Hiuser decided to limit the “call for interest” to classified employees.

Ms. Hiuser testified that her decision to restrict the “call for interest” to classified employees was based “purely for budget” reasons. As Manager of Court Operations for Hamilton she is directly responsible for managing and balancing the court operations budget for the provincial courts in Hamilton. She explained that the Courts receive an annual allocation based, in large part, on a funding formula used throughout the province. Each May, she submits a funding request based on the prior year’s court hours for the unclassified court support personnel (courtroom clerks, court reporters, and registrars), “weighted activity” work load statistics for the classified staff, plus operational expenses such as supplies, repairs, professional fees, witness fees and expenses.

Ms. Hiuser testified that the funding allocation for the Hamilton Courts for the past fiscal year, 2001, was just over $5 million dollars. In 1998, it was $6.1 million dollars. In Ms. Hiuser’s view, there have been significant budgetary pressures on the courts over the past five to seven years and she is always trying to find efficiencies. She also testified that the budgetary pressures in 2000 were especially acute in early 2000 because with the transfer of the Provincial Offenses Act cases the budget of the Hamilton Court would be reduced by close to $500,000 dollars, effective July 1, 2000. In addition, case loads in criminal, civil, family, and small claims were on the rise even though the budget for the year was based on the prior year’s activity. Ms. Hiuser also testified that requesting additional funding was not possible and that any shortfall in the budget would result in the surplusing of staff, which, in her view, was not feasible. In her opinion, the Hamilton courts were already understaffed given the volume of work.

Ms. Hiuser explained that under the funding formula, funding for unclassified court support employees (courtroom clerks, court reporters, and registrars) is based on the time they spend in court. For each one hour of court room time they work, the Court is funded for 1.3 hours, which includes set up and take down time, breaks and so forth. Accordingly, if an unclassified court support employee is backfilling for a Trial Co-ordinator, their time is not reimbursed under the funding formula. They would, of course, be paid for their work, but the Hamilton Court would not receive funding for those hours since the work is not considered time spent in court. Their wages for the day would be, in effect, an unreimbursed expense. In contrast, the salary for a classified employee is funded for the year, regardless of whether they are performing their own job or backfilling for another classified employee. Consequently, backfilling the Trial Co-ordinator’s position with a classified employee is revenue neutral to the Court, whereas backfilling it with an unclassified employee is a revenue loss to the Court.

The testimony of Ms. Hiuser was confirmed by Ms. MacDonald. Ms. MacDonald testified that the decision to restrict the “call for interest” to classified employees was “totally about funding and budget.” She also testified that the same practice – to limit backfilling to classified employees – was done in the Cayuga, Simcoe and Brantford courts.

The “call for interest” memo was sent to all classified staff in the Hamilton Courts in May, 2000. It was posted for a time, although neither Ms. Hiuser nor Ms. MacDonald knew who had posted it. In their view – which was not disputed by the Union – the “call for interest” was not a “posting” for a “vacancy” under Article 6.1 of the collective agreement. Instead, it was a “training opportunity”, a “developmental opportunity” to serve as backup Trial Co-ordinator and Judges’ Secretary on an as-needed basis. The requirements of the positions were listed in the memo and classified staff were “invited to submit in writing an indication of your interest setting out how your qualifications match the above-noted requirements and indicating which position you are interested in.”

A group of the unclassified staff was quite upset at being excluded from the “call for interest.” In a memo dated May 18, 2000 addressed to Betty MacDonald, the group protested their exclusion as, among other things, “blatant discrimination towards all unclassified staff” and “favoring a certain group at the expense of the others.” It urged management to “re-post this job immediately, enabling all interested employees the opportunity to apply.” The memo was copied to Ms. Hiuser, Manager Court Operations, Joanne Spriet, Director Court Operations, Karen Pashleigh, Acting Director Human Resources and Pauline Tapping, MERC.

Ms. MacDonald testified that she did not receive a copy of this memo, but learned about it from Ms. Hiuser. They decided to meet with the 18 employees who signed the memo to address their concerns.

The meeting was held on May 26, 2000. The meeting was attended by Ms. MacDonald, Ms. Hiuser and a number of the employees who had expressed concerns. At the meeting, management explained that the decision to restrict the “call for interest” to classified employees was based on budget concerns, and an explanation of how the courts were funded for unclassified court support personnel (i.e., that the Court received 1.3 salary hours for every 1 hour of actual court time but no salary dollars when they backfilled a position) was provided.

At the meeting, Ms. MacDonald also discussed potential job shadowing with the Trial Co-ordinator and Judges’ Secretary as “some remedy to allow them to get some training.” She acknowledged, on cross-examination, that the training involved for the successful person selected to backfill as a result of the “call for interest” would be more involved than would occur in a job shadowing exercise. She also acknowledged that job shadowing was not a “training opportunity as such” but was more in the nature of a look at the job to see what the incumbent does and if they might be interested in it.

The issue of training and backfilling for the Trial Co-ordinator position was an important one to staff in early to mid-2000 because the incumbent in the position, Lorraine Baynton, was expected to retire soon. As a result, obtaining training and experience in the job would be advantageous in a job competition for that position. As one of the grievors, Ms. Elaine Young, testified, backfilling would have been an “excellent opportunity” to learn about the job and enhance her job qualifications and skills for the position. Ms. MacDonald also acknowledged that having the opportunity to train in the job and perform it on a backfill basis would provide an advantage to an applicant when the posting arose.

The Union introduced a copy of a job posting for two back-up Trial Schedulers, on an on-call, as- required basis, for the Brampton courts. The competition was “restricted”, meaning it was open to all unclassified and classified employees in the Ontario public service, provided they lived within a 40 km distance. The posting states that the position of Trial Scheduler “assist[s] the Trial Co-ordinator in the preparation of daily, weekly & monthly court schedules.” It is an OAG-8 position. In the view of grievor Elaine Young, this posting was a “similar position” in terms of duties, which was made available to all staff.

Ms. Hiuser testified, based in part on a conversation she had with the Manager of Court Operations in Brampton and her personal knowledge of the courts, that the position of Trial Scheduler is different than Trial Co-ordinator and that they assist the Trial Co-ordinator. She testified that Brampton is a significantly larger court than Hamilton. It receives approximately $3.5 million dollars more in its operational budget than Hamilton and is a “backlog court” with a high percentage of cases in jeopardy of dismissal for delay and into which additional resources have been allocated to address that backlog.

The result of the “call for interest” was that one employee, a classified employee, was selected to serve as backup for the Trial Co-ordinator. The record does not disclose how many employees applied. At least two of the grievors expressed their interest but were not considered.

Positions of the Parties

A. The Union

The Union asserts that the Ministry’s decision to restrict the “call for interest” to classified employees improperly infringed and interfered with the grievors’ right to apply for and be considered for posted vacancies under Article 6.1 of the collective agreement. The Union submits that while management has discretion to determine who receives training and developmental opportunities, it must exercise that discretion in good faith where employee rights may be undermined.

The Union acknowledges that there is no express provision in the collective agreement which entitles employees, classified and unclassified, to receive access to training and developmental opportunities. It also acknowledges that decisions regarding who should have these training opportunities are a decision for management. But it asserts that management’s discretion must be exercised in good faith, citing OPSEU (Bousquet) and Ministry of Natural Resources, GSB No. 541/90 et al. (Gorsky, 1990)

The Union asserts that under the Bousquet test, management’s decision was “a disguised means of achieving impermissible ends”- specifically, to undermine the unclassified employees’ ability and right to compete for the Trial Co-ordinator position. In this regard, the Union also relies on OPSEU (McIntosh) and Ministry of Government Services, GSB No. 3027/92 (Dissanayake, 1993), for the contention that unclassified employees have a right to participate in job competitions under article 6 and that the parties intended that right to be a meaningful right. It submits that the right to participate in job competitions cannot be undermined by the bad faith actions of the Employer to exclude unclassified employees from training and developmental opportunities.

The Union asserts that in this case, the Ministry’s decision to restrict the “call for interest” to classified employees was made in bad faith. It asserts that it was made with full knowledge of the impending retirement of Ms. Baynton, the Trial Co-ordinator, and the vacancy that would result. It submits that they devised the “call for interest” to expand the opportunities for classified employees to obtain training and backfilling in the Trial Co-ordinator position while, at the same time, restricting the opportunities of the unclassified staff.

The Union points out that the Employer knew, at the time, that its decision would deprive the unclassified employees of the opportunity to be trained in and backfill for the Trial Coordinator position, to their disadvantage. It submits that this was a conscious decision with foreseeable consequences, and that the Employer must be deemed to have intended that result. The Employer submits that to the extent that this improper motivation played any part in its decision to restrict the “call for interest”, the decision should be invalidated.

The Union also questions the Employer’s claim that the decision was based on the budget and funding formula. It argues that the same budgeting process had been followed for a number of years and yet unclassified employees had backfilled for the position. It submits that nothing had changed at the relevant time to require limiting the “call for interest” to classified employees. Instead, it submits that the decision was made to favour one group of employees over another.

In further support of its contentions, the Union cites to OPSEU (Union Grievance) and Management Board Secretariat, GSB No. 0405/99 (Abramsky, 2001); OPSEU (Jafri) and Ministry of Correctional Services, GSB No. 933/91 (Dissanayake, 1995); OPSEU (Knapp) and Ministry of Finance, GSB No. 2720/96 (Abramsky, 2000), and Re NGF Canada Ltd. and Union of Needletrades, Industrial and Textile Employees, Local 1305 (1997), 1997 CanLII 24942 (ON LA), 66 L.A.C. (4th) 408 (Ray).

Accordingly, the Union requests that the grievance be allowed, that the decision to restrict the “call for interest” be invalidated and that the Ministry be required to open the opportunity to be selected to backfill for the Trial Co-ordinator position to all employees.

B. The Employer

The Employer contends that because the decision to restrict the “call for interest” to classified employees falls within the exclusive exercise of its management rights, the Board’s jurisdiction is limited to determining whether management exercised its discretion in bad faith. The Employer submits that the onus on this issue rests with the Union and that there is no evidence to establish bad faith. On the contrary, it contends that management restricted the “call for interest” to classified employees based solely on financial and budgetary reasons which are bona fide, legitimate factors, and that the decision was rationally related to the operation of the enterprise.

In its submissions, the Employer relies extensively on OPSEU (Bousquet) and Ministry of Natural Resources, supra. It submits that under the standards set forth in that case, management’s decision to restrict the “call for interest” was a genuine decision related to the management of the enterprise, and was not a disguised means of achieving an impermissible end. The Employer argues that the Union presented no evidence that the decision was made for the improper purpose of limiting or negating the training opportunities of the unclassified employees. The Employer notes that the reasons for its decision were communicated to the employees at the time, and that alternatives such as job shadowing were offered.

In the Employer’s view, the job postings for Trial Schedulers out of the Brampton Court pertain to a different job, for a much larger court, and creates no inference of bad faith on the part of the Hamilton Court.

Finally, in the Employer’s submission, the remaining cases cited by the Union are either not relevant or are distinguishable on the facts.

C. Union Reply

In reply, the Union asserts that even if management genuinely thought that restricting the “call for interest” was a necessary, financial business decision, the budgetary process which required that result cannot be allowed to stand because it discriminates against unclassified employees. The Union submits that the Employer must set up a fair budgetary process so that use of unclassified employees to backfill a classified position is revenue-neutral. The fact that it is not revenue-neutral, it submits, is the “disguised means to achieve an impermissible purpose” under Bousquet.

Decision

The issues in this case are governed by the Board’s decision in OPSEU (Bousquet) and Ministry of Natural Resources, supra. Bousquet involves, among other issues, an allegation that the Employer discriminated against the grievor because he was a francophone when it denied him the opportunity to take a training course. The remedy sought was that the grievor be allowed to take the course and be given developmental opportunities. An objection to the Board’s jurisdiction 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 Union argued that the Board did have jurisdiction to review the decision of management where the rights of employees found in the collective agreement may be adversely affected. Specifically, the Union that “when the Employer, in bad faith, does not furnish an employee with training and development opportunities, the employee’s rights under Article 4.3, are undermined where the employee would be put at a disadvantage in applying for a posted position.” (Bousquet at p. 20) Article 4.3 provided that “In filling a vacancy, the Employer shall give primary consideration to qualifications and ability to perform the required duties. Where qualifications and ability are relatively equal, length of continuous service shall be a consideration.” There is similar language contained in Article 6.3.1 of the collective agreement.

The Board agreed, finding that even though decisions about training and developmental opportunities were an exclusive management right, management’s discretion must be exercised in good faith. The Board stated at pp. 24-25: “While management may exercise the exclusive rights granted to it…with a good deal of impunity, they must be exercised, at least, in good faith.”

The Board concluded, at pp. 35-36:

[I]f it could be demonstrated that the Employer had discriminated against the Grievor in denying him training and development opportunities with a view to undermining his advancement opportunities under article 4, then its actions could not be said to have been carried out in good faith, for genuine government purposes. There is nothing in the collective agreement that requires the Employer to consider the advancement opportunities of employees. However, it cannot use its management rights …in a way which would amount to a deliberate attempt to interfere with an employee’s right to compete for a promotion. The employer cannot deliberately tilt the field with a view to preferring one employee over another. However, where in good faith and for genuine government purposes an employee is denied a training or development opportunity, where the denial is not founded on a deliberate attempt to undermine the employee’s opportunities for promotion, the decision will not be interfered with.

The Board in Bousquet extensively reviewed the jurisprudence regarding what constitutes “good faith.” The Board adopted, essentially, a two-part standard. The first requirement is an 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 p. 63-64:

All of the cases emphasize that in cases involving the exercise of managerial discretion, the Board will hesitate to substitute its view for that of the employer as long as certain minimum tests are met. These include the requirement that the decision be a genuine one related to the management of the undertaking and not a disguised means of achieving impermissible ends based on discrimination 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 described, need not be correct.

The standards set forth in Bousquet are directly applicable to the facts in this case. The grievors, as unclassified employees, have rights under article 6 of the collective agreement. As held in OPSEU (McIntosh) and Ministry of Government Services, supra, the parties provided unclassified employees with the right to participate in job competitions conducted under article 6, and the employer cannot render those rights meaningless by acting in bad faith.

Further, the Board in Bousquet concluded that “it can be seen that an employee, who has been deprived of a training or developmental opportunity, may be placed at a disadvantage in a competition held pursuant to art. 4 where an applicant must have had certain training or development in order to pass a threshold for consideration.” (Bousquet at p. 49) This conclusion, in light of McIntosh, also applies to unclassified employees. Given their right to participate in job competitions, unclassified employees who have been deprived of a training or developmental opportunity, just like similarly situated classified employees, can be placed at a disadvantage in a competition held pursuant to article 6. As a result, management’s decisions in regard to training and developmental opportunities must be made in good faith. As the Board held in Bousquet at p. 61: “In order to be carried out in good faith, an employer must have had a genuine intention to carry out a legitimate government purpose which has the effect of denying an employee a training of development opportunity.”

In this case, there is no question that the decision to restrict the “call for interest” to classified employees had the effect of denying unclassified employees in the Hamilton court a potential training and developmental opportunity. It is easy to see why this decision so greatly angered the unclassified staff, particularly since an unclassified employee had often backfilled the Trial Coordinator position in the past. Then, just when the incumbent in the position was expected to retire, the unclassified employees were excluded from consideration for the training and developmental opportunity of backfilling for that position.

But as stated in Bousquet, “[t]here is nothing in the collective agreement that requires the Employer to consider the advancement opportunities of employees.” An employee, or group of employees, may be deprived of a training and developmental opportunity. What is prohibited is the misuse of the Employer’s management rights “in a way which would amount to a deliberate attempt to interfere with an employee’s right to compete for a promotion.” (Bousquet at p. 36). But as the Board held at p. 36:

However, where in good faith and for genuine government purposes an employee is denied a training or development opportunity, where the denial is not founded on a deliberate attempt to undermine the employee’s opportunities for promotion, the decision will not be interfered with.

Accordingly, the issue presented in this case is whether the Ministry’s decision to restrict the “call for interest” to classified employees was a deliberate attempt to undermine the classified employee’s opportunities for promotion, or was made for bona fide, legitimate, genuine government purposes.

On the balance of probabilities, the evidence here establishes that the decision to restrict the “call for interest” to classified employees was based on financial and budgetary concerns. Quite simply, using a classified employee to backfill the Trial Coordinator position is revenue neutral to the Ministry while using an unclassified employee results in a revenue loss. Under the funding formula used to support the courts, the Hamilton Court would not be compensated for the time an unclassified employee spends backfilling the Trial Coordinator position because it would not be considered “time in court.” As a result, even though the Hamilton Court would have to pay the unclassified employee for his or her time while backfilling, it would not be reimbursed for that time under the funding formula. In contrast, because a classified employee’s time is budgeted and paid for regardless of the task her or she performs, the Hamilton Court would be funded for the time a classified employee spends backfilling for the Trial Coordinator job.

In OPSEU (Mistry) and Ontario Human Rights Commission, supra at p.33, the Board held that management’s failure to renew the grievor’s unclassified contract while renewing the contracts of other unclassified was motivated by “business and financial considerations which are legitimate managerial concerns.” The Commission had a significant budget shortfall and restructuring had become necessary. Further, in contrast to the offices in which the two other employees’ contracts were renewed, the office in which the grievor worked did not need or require an additional employee. The same principle – that financial considerations are a legitimate managerial concern – applies here.

In this case, the evidence showed that the Hamilton Court was operating under significant financial pressures, and had been for a number of years. Although the financial resources allocated to the Court were down, the workload in many areas was up. Requesting additional funding was not an available option and the result of any budget shortfall would be layoffs. Economies were being implemented in all possible areas. Further, at the relevant time, management was expecting a further significant cut to its budget, effective July 1, 2000, with the transfer of the Provincial Offences Act.

The Union argues, however, that this explanation is suspect because the same funding formula had existed for years and yet unclassified, along with classified employees, had served as backfill for the Trial Coordinator position. This argument, while quite forceful, does not negate the Employer’s explanation. The testimony of Ms. Hiuser was convincing that the basis of her decision was to save money. The Hamilton Court had received a request from the judiciary that there was a need for consistency in the backfilling of the Trial Co-ordinator position, and it had received complaints from classified employees that the backfill opportunities were limited to a chosen few. To address these issues, management decided to have a “call for interest.” It was Ms. Hiuser’s decision to restrict that “call for interest” to classified staff only – and her evidence was unequivocal that it was done for budgetary reasons – to save money.

Her explanation as to how restricting the “call for interest” would save the Court money was straightforward and credible. It made sense, from a budgetary perspective. Her evidence about the funding process established that there was “a rational relationship between the facts leading to the making of the decision and the decision itself.” In other words, there was a rational relationship between the facts leading to the making of the decision (the financial pressures on the Hamilton Court and the funding formula used by the Ministry) and the decision itself (to restrict the “call for interest” to classified employees). The decision flowed logically from the facts. The evidence establishes that the decision is “a genuine one related to the management of the undertaking.” Accordingly, I conclude that the “reasonableness” factor of the good faith test outlined in Bousquet has been satisfied.

In this regard, it should be noted that test of reasonableness is not one of correctness. As noted in Bousquet, the fact that an arbitration board might have come to a different decision or assessment is irrelevant. The Board found that “the test of good faith, in this context is not one of correctness.” Quoting the decision of Shaw, GSB No. 410/88 (Watters) at p. 6, the Board continued at p. 60:

It is easy to brand as “irrational” any thought process or decision with which one does not agree. The Deputy Minister must be free to make decisions, without being found to have acted irrationally merely because a board of arbitration might have come to a different decision.

I also conclude, on the balance of probabilities, that the evidence does not establish that management acted in bad faith for an improper reason. The evidence does not establish that the decision was “a disguised means of achieving impermissible ends based on discrimination or other grounds unrelated to the making of genuine management decisions.” Although the effect of the decision to restrict the “call for interest” was to deny the unclassified employees the opportunity to be considered to backfill the Trial Co-ordinator job, the evidence did not establish that the intent was to undermine the unclassified employees’ rights under Article 6. The Union bears the onus on this issue and there is no evidence that the decision was made because of a desire, on the part of management, to make it difficult for the unclassified employees to compete for the position when the incumbent retired, or to punish the unclassified employees, or for reasons prohibited by the Human Rights Code. There is no evidence to support the conclusion that the decision was a deliberate attempt to undermine the unclassified employees’ opportunities for promotion.

Counsel for the Union is quite correct when he argued that a foreseeable consequence of the decision to restrict the “call for interest” to classified employees was to deprive the unclassified employees of a potential training and developmental opportunity. But that consequence is insufficient to establish that the motive and intent of the Ministry was to undermine the employees’ rights under article 6. Nor does the fact that a similar position – Trial Scheduler - was posted in Brampton and open to both classified and unclassified staff support the conclusion that the decision in Hamilton was improperly motivated. Any inference of an improper motive that arises from those two facts is negated by the evidence of the Employer that the decision to restrict the “call for interest” was based on the financial situation at the Hamilton Court and the funding formula.

Counsel for the Union is also correct that the funding formula used by the Ministry for the courts makes it cost prohibitive to use unclassified employees to backfill classified positions. That situation, however, does not violate the collective agreement. There is no provision in the collective agreement that requires the Employer to provide training and developmental opportunities to employees. There is also no evidence – nor was it argued – that the funding formula was specifically and intentionally structured and designed so as to undermine unclassified employee rights under article 6. The situation has caused, and may continue to cause, a labour relations problem for the courts, but is does not violate the collective agreement.

Accordingly, for all of the above reasons, I conclude that the Ministry’s decision to restrict the “call for interest” to classified employees was not made in bad faith. Accordingly, the grievance must be dismissed.

Dated at Toronto, this 10th day of July, 2002.