GSB# 0319/00, 0388/00, 0974/00, 1112/00, 1182/00, 1247/00, 1248/00
UNION# 00B194, 00B206, 00B207, 00B343, 00B344, 00B345, 00B346, 00B365, 00B374, 00B404, 00B405
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Leung et al, Guillermo/Chen)
Grievor
- and -
The Crown in Right of Ontario (Ministry of Finance)
Employer
BEFORE
Randi H. Abramsky
Vice-Chair
FOR THE UNION
Don Martin Grievance Officer Ontario Public Service Employees Union
FOR THE EMPLOYER
Helen Ecker Labour Relations Consultant Ministry of Finance
HEARING
September 4 & October 31, 2002.
DECISION
This matter has come before me for a determination of whether or not the Employer has complied with paragraph 2 of the Board’s Order of July 15, 2002. Paragraph 2 provides as follows:
- The employer, making use of the best information available to it will, in good faith, select the 7 grievors in the Chen et al. and Leung et al. grievances, who are not now employed as Senior Corporations Tax Auditors, and who are, in the employer’s opinion, most qualified to fill positions as Senior Corporations Tax Auditors, and will classify and pay those grievors Senior Corporations Tax Auditors at the Tax Auditor 5 level effective July 1, 2002.
Pursuant to paragraph 2, the employer made its selection of seven grievors, and the Union has challenged the results of that selection.
In challenging the results, the Union is cognizant of paragraph 3 of the July 15, 2002 Order, which provides:
- The employer’s selection of the 7 grievors will be final and shall not be the subject of any grievance on the merits or that involves a comparison among the grievors’ qualifications.
Accordingly, the parties’ agreed that the only issue presented is whether, on an objective basis, the employer could have made the determination it did in good faith, based on the information provided. If the determination could have been made in good faith, even though I might disagree with it, the decision must stand.
Having now reviewed the information provided, I conclude that the employer, on an objective basis, could have made the determination it did in good faith. My review of the documents indicates that all of the candidates have strong credentials and experience. All were rated on their performance evaluations from the middle of “meets requirements” to “exceeds requirements.” All appear to be qualified for the position. There is nothing to suggest that the Employer’s determination of who was the “most qualified”, as set out in Paragraph 2, was based on any improper consideration or made for an improper motive. On an objective assessment, the decision could have flowed from the facts presented. See, generally, OPSEU (Young et al./Group Grievance) and Ministry of the Attorney General, GSB No. 1455/00 et al. (Abramsky); OPSEU (Bousquet) and Ministry of Natural Resources, GSB No. 541/90 et al. (Gorsky).
In paragraph 3 of the July 15, 2002 Order the parties were clear that a grievance could not be filed which involved a comparison among the grievors’ qualifications. Nor could a grievance on the merits be filed. The decision, if made in good faith based on the best information available, was not to be second-guessed. As set forth above, I conclude that the decision made by management could have been made in good faith based on the information provided. The fact that one may disagree with it, or that another decision might also have been made based on the same information, does not establish that the decision actually made was improper.
This case has been a long and often difficult endeavor for both sides. Not surprisingly, in a case of this nature, the outcome can be frustrating. But for the reasons set forth above, there is no evidence that the decision made pursuant to Paragraph 2 of the July 15, 2002 Order was made in bad faith. Accordingly, I conclude that the Employer did not violate the July 15, 2002 Order.
Issued at Toronto this 29th day of November, 2002.