The case, Toronto (City) v. Toronto Professional Firefighters’ Association Local 3888, considers management’s rights not to hire staff versus its obligations under its union contracts.
The issue at hand, the decision not to initiate a recruit class in May 2011, came at a time when the city was under severe financial pressures given recently elected Mayor Rob Ford’s campaign against the infamous gravy train. The city, last week’s decision notes, argued it was under “the most extreme fiscal pressures it had ever faced.”
A key question before arbitrator Russell Goodfellow was the city’s obligations under Article 49.01 of the collective agreement with its firefighters. It stated: “A recruit class would be initiated when vacancies in the present workforce created by death, retirement, resignation or discharge reaches 40.”
What, then, was the meaning of “would?” According to the city, the word “would” wasn’t an ironclad obligation. Further, it argued, another provision in the agreement provides management the exclusive right to hire, something that also presumably grants it the ability not to hire.
Goodfellow, however, saw the issue otherwise. “To put it only slightly differently, the effect of the city’s position would be that the parties have gone to the trouble of constructing a provision entitled ‘Filling of Vacancies’ (not ‘Possible Filling of Vacancies’ or ‘Partial Information About Filling of Vacancies’ or ‘When Vacancies Will Usually Be Filled’) that depends on certain events that does nothing more than reserve, preserve or confirm a pre-existing discretion,” he noted.
“Thus, it may have been in response to this concern that the city submits that the provision creates a ‘more limited’ discretion i.e. it does not do nothing, it does something, and what it does is describe an expectation, a preference or a goal: what the parties hope to achieve most of the time. In my view, that is simply not plausible. It is not how parties bargain collective agreements. Parties do not negotiate wishes, hopes, possibilities or even probabilities; they negotiate certainties, requirements and obligations.”
As a result, Goodfellow upheld the union’s grievance but found the city hadn’t acted in bad faith given city manager Joe Pennachetti’s submissions “about the enormity of the fiscal challenges facing the city in 2011 and the various ways that he sought to deal with them.”
Goodfellow did, however, find the city breached the agreement and said he remains “seized in respect of any other remedial relief upon which the parties may be unable to agree.”