32
However, following a decision of the Ontario Divisional Court, some arbitrators
began to question this approach. In their view, this limited standard of review
should not prevail, on the second component of the employer’s decision, if the
parties have not, either in the seniority provisions or in the management’s rights
clause of the agreement, specifically provided that the determination of an
employee’s abilities or qualifications is to be based on “the opinion or judgment”
of the employer. Although in many agreements such a phrase is included to
preserve management’s discretion, in agreements where it is not, these arbitrators
insisted that the scope of arbitral review with respect to the employer’s
application of the relevant standards against which an employee’s ability is
measured ought to be more exacting. Their rule, which has not been embraced by
all arbitrators, is that an arbitrator may fully review an employer’s decision on its
merits to determine whether, on its own standards and procedures, the employer
made the correct decision as to the ability and qualifications of the competing
applicants. [emphasis added]
The Ontario Divisional Court’s reasoning was simple and straightforward:
The board as a creature of the collective agreement must then see to it that
the provisions of the collective agreement have been complied with; its role
cannot be more or less than this. The honesty and lack of malafides in
making the decision are factors to be taken into account. So, too, is the
question of whether or not the employer has acted unreasonably. Indeed, in
determining the “reasonableness” of the employer’s decision, the board
may go a long way to determine the issue submitted to it. However, once
the collective agreement makes provisions as to the method of selection of
employees for promotions, then the board must see to it that those
provisions have been complied with and in so doing, it cannot restrict itself
to determining whether the employer acted honestly and reasonably. If the
board is not to make such a decision, then the parties in the collective
agreement should ensure that management’s right in this regard is
unfettered.
The Union pointed to a number of Nova Scotia decisions which discuss the above controversy
and related matters, including some which involve NSUPE Local 13 and HRM and the
Collective Agreement provision at issue here: Article 6.01(c).
33.
As to “related matters,” the Union began by citing the decision of Arbitrator Milton
Veniot in Halifax (Regional Municipality) v. NSUPE Local 2 [in fact 13], 171 L.A.C. (4th) 257
where the Arbitrator interpreted Article 2.01(c) of the Collective Agreement between the parties