GSB# 0622/01

UNION# 01B212

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union

(Perez)

Grievor

• and -

The Crown in Right of Ontario

(Ministry of Community and Social Services)

Employer

BEFORE

Randi H. Abramsky

Vice-Chair

FOR THE UNION

John Brewin

Ryder Wright Blair & Doyle

Barristers and Solicitors

FOR THE EMPLOYER

Ferina Murji

Counsel

Management Board Secretariat

HEARING

December 4, 2002.

AWARD

In my last decision in this matter on September 12, 2002, I determined that the Ministry 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 impropriety 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 Ministry 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 significance, 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 arises because Article 6 rights 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 rights under the collective agreement to that position. Whether there is a similar “right” to the position when the competition is not governed by Article 6 is the issue presented here.

Oral argument was held and additional written submissions were filed. This Award addresses what standard applies.

Facts:

The pertinent facts are set out in my earlier Award. Simply stated, the Ministry posted for a significant number of temporary (less than six months) Income Security 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 impropriety during 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 during the competition, the Ministry rescinded the appointments and cancelled the competition.

Positions of the Parties

For the Union

The Union asserts that the onus for rescinding an appointment is on the Ministry, and the Ministry must establish, by clear and compelling evidence, either that an individual employee engaged in improper conduct or that there were significant improprieties 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 Union asserts, is that an employee, once selected for a position, has a significant interest in retaining that position. It submits that rescinding all of the appointments unfairly and improperly adversely impacts those candidates who engaged in no wrongdoing and fairly won the competition. Also significant is the fact that the Ministry is acting on its own, in the absence of a grievance by an unsuccessful candidate. This factor, the Union argues, compels caution because of the risk that a minimal standard would enable the employer to cancel the competition if unhappy with the results.

In the Union’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 Union 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 Union cites to, among other cases, OPSEU (MacLellan and DeGrandis) and Ministry of Government Services, GSB No. 506/81 (Samuels) and OPSEU (Group Grievance) and Ministry of Correctional Services, GSB No. 1999/98 (Harris).

The Union further contends that under the “clean hands” doctrine, the Ministry 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 significant period of time.

The Union 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.

The Ministry

The Ministry argues that the fact that this competition was not governed by Article 6 is critical. It first argues that under Article 8.6.2, the GSB has no jurisdiction to review the Ministry’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 Ministry contends that the GSB has no jurisdiction to review the temporary assignments in this case – since no provision of the collective agreement applies. This, in the Ministry’s view, is the type of negotiated “clear language” required to relieve the GSB of jurisdiction to review the matter, citing OPSEU (Union Grievance) and Management Board Secretariat, GSB No. 0405/99 (Abramsky). The Ministry recognizes that this argument was not raised before, but asserts that because it goes to the jurisdiction of the Board, it may be raised at any time.

In the alternative, the Ministry asserts that if the Board does have jurisdiction to review the matter, its review is limited to a determination of whether the Ministry acted in good faith and for reasonable business reasons. It submits that what is at issue here is akin to a developmental opportunity to which an employee has no right under the collective agreement. The Ministry 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 not create a substantive right to that position. In support of its position, the Ministry 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 Ministry 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 Ministry submits that the evidence establishes that the Ministry acted in good faith when it cancelled the competition and rescinded the appointments based on allegations of cheating.

The Ministry 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 grievance by an employee alleging a violation of Article 6.3.1, and has no applicability when assessing the exercise of management’s discretion.

Union Reply

The Union 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 Ministry must prove a ground similar to the requirements for setting aside a contract, such as fraud or genuine mistake.

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 8.6.1. 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 deprive the Board of jurisdiction.

B. The Standard of Review

The Employer asserts, in the alternative, that the appropriate standard of review is one of good faith and reasonableness because its decision to rescind the appointments is the same as the denial of a developmental opportunity. 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.

In OPSEU (Bousquet) and Ministry of Natural Resources, supra, the grievor alleged, among other matters, 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 alleged 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, although stronger, language in Article 6.3.1 of the collective agreement.

The Board agreed with the Union, 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.

Bousquet makes clear that there is no enforceable “right” to a developmental opportunity and there is no right independently to grieve the denial of such a training opportunity. As set forth in Bousquet, the denial of such an opportunity is arbitrable solely on the basis that such opportunities impact an employee’s ability to compete for positions under Article 6. It is a derivative right, 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 denied a developmental opportunity. It involves individuals who were awarded such opportunities and then deprived of them, on the basis of allegations that there had been cheating during 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 nineteen temporary ISS positions of “up to six months duration.” It completed that competition, and offered the temporary positions to the grievors 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 denies an employee a developmental opportunity. Here the developmental opportunity was awarded 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 rights created by the appointment. This is a fundamental point of contention between the parties, with the Union 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 material. Under Article 6.3.1, “[w]here qualifications and ability are relatively equal, seniority shall be the deciding factor.” Under this provision, the senior applicant has an enforceable right to be awarded the position if his or her qualifications and ability are relatively equal. No similar right 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 rights at all in relation to the awarded position. Although employees have no enforceable right to the position based on their seniority, their right stems from the fact the positions were awarded to them.

As the Union asserts, a “contract of employment” is created by the Employer’s offer of the temporary assignments to the grievors and the grievors’ 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 Union submits that the employer must establish either individual misconduct or that the competition process was fatally flawed. For the following reasons, I cannot agree to either standard.

The Union’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 grievors continue to be employed – albeit in their home positions. A different situation may arise where the rescission of a temporary appointment is tantamount to a discharge of employment. See, e.g., Re OPSEU (Ambrey) and Ministry of the Attorney General, GSB No. 429/84 (Knopf); Re AMAPCEO (Stewart) 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 during the competition. This fact, by itself, does not render the decision to rescind the appointments “disciplinary” in nature. There was no assertion by the Union 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 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 grieves the outcome of a competition under Article 6. In this case, Article 6 is not applicable. The senior applicants have no right 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 grievors’ 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 right 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 restriction. But the case law is clear that the employer may not exercise its managerial powers in a way that improperly undermines employee rights protected by the collective agreement. Although, as held in Bousquet, supra, employees have no independent right to a developmental opportunity (or to a developmental temporary assignment), management “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.” (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 opportunities. The Union had requested that a fair and competitive process be adopted for staff interested in developmental opportunities, 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 denial of such a developmental opportunity is arbitrable on the basis that such an opportunity impacts an employee’s ability to compete for positions under Article 6, the rescission of such an opportunity 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 jurisprudence 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 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.

Accordingly, I conclude that while the employer’s offers of the temporary assignment to the grievors and their acceptance created individual “contracts of employment”, those contracts must be consistent with the collective agreement. Under the collective, management has the right 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 right 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 Union and the employees waited a long time for a competition to be held for these developmental appointments. It finally took place and the grievors 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 Union 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 Grievance Settlement Board of jurisdiction 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 grievors 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 right to “appoint” employees, “subject only to the provisions of this Central Collective Agreement and any other Collective Agreement to which the parties are subject.”

5. There is nothing in the collective agreement that deals with the rescission of such temporary appointments, or limits management’s rights 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.