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Home My WebLink About2012-2926.Taylor et al.14-05-06 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2012-2926, 2012-2927, 2012-2928, 2012-2929 UNION#2012-0108-0172, 2012-0108-0173, 2012-0108-0174, 2012-0108-0175 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Taylor et al) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Ken Petryshen Vice-Chair FOR THE UNION Ed Holmes Ryder Wright Blair & Holmes LLP Barristers and Solicitors Counsel FOR THE EMPLOYER Felix Lau Ministry of Government Services Legal Services Branch Counsel HEARING December 4, 2013, January 21, 2014 - 2 - Decision [1] Marley Taylor, Kayla Leneve, Allan O’Connell and Gerald Bryan filed grievances in August of 2012 claiming that the Employer contravened the Collective Agreement by refusing their requests to be paid a nursing allowance. Each grievor is a Registered Nurse (“RN”). When they filed the grievances they were employed in the position of Nurse 2 General at the Elgin- Middlesex Detention Centre (“EMDC”) at London. But for the time requirement, these grievances are being addressed in accordance with article 22.16 of the Collective Agreement. [2] Three nursing allowances, N 1, N 2 and N 3, are contained in the General Notes and Allowances section of the Collective Agreement. These provisions have been a feature of the Collective Agreement for many years. The grievors were seeking the N 3 allowance. The provisions of the Collective Agreement that are relevant in this case are as follows: N 3 An allowance of one thousand and ten dollars ($1,010.00) per annum in addition to each listed rate in the salary range may be paid for successful completion of a degree in nursing science from a university of recognized standing to an employee in a position classified as: Nurse 2 & 3 General $19.36/week …. All N salary allowances are subject to the following conditions: a) the qualification is not a mandatory requirement for entry to the classification; b) the qualification is deemed to be useful in the execution of the employee’s duties (i.e. is job related); c) the application of the allowance is at the discretion of management; and d) only one allowance may be paid at one time. [3] Taylor, Bryan and O’Connell were hired at the EMDC in 2008. Leneve was - 3 - hired in 2010. Taylor, Leneve and O’Connell had a nursing degree when hired. Bryan received his nursing degree in 2010 while employed at the EMDC. There are 30 nurses employed at EMDC. There is only one registered nurse at this institution that is in receipt of the N 3 nursing allowance. Approximately 10 nurses were recently hired at the EMDC. Less than half of these recent hires had a nursing degree. [4] There is no dispute that all of the grievors raised the matter of the N 3 nursing allowance with Ms. Jackie Hamilton before filing a grievance on this issue. At the time, Hamilton was the Deputy Superintendent of Programs at the EMDC. Since then she has moved on and is now the Area Manager, Probation & Parole, London. [5] Hamilton was the only witness to testify in this proceeding. She indicated that she was the person who decided to deny the grievors the N 3 nursing allowance and that this was the first time she was confronted with such a request. After the grievors made their request for the nursing allowance, Hamilton discussed the matter with Human Resources and the Superintendent at the institution. She did not go back to the grievors to discover whether any of their personal circumstances was consistent with her understanding of the facts and were relevant to the exercise of her discretion. She indicated that the main consideration which led her to deny the requests for the nursing allowance was that there was no change for the grievors since they were hired. She indicated that the grievors could negotiate their starting rate during the hiring process. She indicated however that she did not know whether any of the grievors tried to negotiate a starting rate above the rates set out in the Collective Agreement. An important reason for denying the nursing allowance was her understanding that each grievor was hired with a nursing degree. She did not realize that Bryan did not obtain his nursing degree until June of 2010. - 4 - Hamilton acknowledged that she did not attempt to ascertain when the grievors secured a nursing degree. [6] The issue in dispute in this matter is whether the Employer properly exercised its discretion when it denied the grievors the N 3 nursing allowance. There is no dispute that the conditions for the nursing allowance have been met here, apart from the exercise of discretion. [7] I find it unnecessary to review the submissions of counsel in detail. Union counsel referred to the agreed facts and the testimony of Hamilton in support of his submissions that the Employer did not meet the minimum guidelines established by the GSB for the proper exercise of discretion. Union counsel referred me to the following decisions: E. Todd and Ministry of Correctional Services (1981), GSB No. 123/81 (Kennedy); OPSEU (Kuyntjes) and Ministry of Transportation and Communications (1985), GSB No. 513/84 (Verity); OPSEU (Union) v. Clean Water Agency, [2000] O.G.S.B.A. No. 93 (Abramsky); Re Toronto District School Board (Black) and CUPE, Local 4400 (Unit D) (2011), 205 L.A.C. (4th) 8 (Luborsky); Re Ontario (Ministry of Government Services) and OPSEU (Kimmel/Leaf) (1991), 21 L.A.C. (4th) 129 (Kaplan); and, OPSEU (Leger and Legacy) and Ministry of Correctional Services (1988), GSB Nos. 506/87 and 507/87 (Dissanayake). [8] The Employer submitted that it did satisfy the GSB’s guidelines for the proper exercise of discretion in this case. Employer counsel argued that Hamilton’s failure to discover that Bryan obtained his nursing degree almost two years after he was hired is not fatal to the Employer’s case. Employer counsel relied on the following decisions: OPSEU (Mayers) and Ministry of Correctional Services (1992), GSB No. 1030/90 (Kirkwood); Bain and Treasury - 5 - Board (Environment Canada), [1992] C.P.S.S.R.B No 2 (Chodos); and, Re Government of British Columbia and British Columbia Nurses Union – Union of Psychiatric Nurses of British Columbia (1985), 21 L.A.C. 9 (3d) 225 (Kelleher). [9] In OPSEU (Kuyntjes) and Ministry of Transportation and Communications, supra, the Vice-Chair describes at page 16 the kind of considerations arbitrators take into account when assessing whether there has been a proper exercise of discretion as follows: In cases involving the exercise of managerial discretion, Boards of Arbitration generally hesitate to substitute their view for that of the decision- maker, which is a recognition of the fact that Boards have less familiarity than does the Employer with the exigencies of the work place. However, Arbitrators must ensure that decisions are made within the confines of certain minimum standards of administrative justice. Those administrative law concepts relating to the proper exercise of discretion include the following considerations: 1) The decision must be made in good faith and without discrimination. 2) It must be a genuine exercise of discretionary power, as opposed to rigid policy adherence. 3) Consideration must be given to the merits of the individual application. 4) All relevant facts must be considered and conversely irrelevant considerations must be rejected. [10] It is quite evident in my view that the Employer did not exercise its discretion properly in this instance. Hamilton did not give due consideration to the merits of each individual request for the nursing allowance. As well, all relevant facts were not considered before deciding to deny the nursing allowance. Hamilton made assumptions about the facts without conducting a full enquiry. For those factors she considered relevant to her decision, she did not ascertain whether they were supported by the facts by engaging in meaningful discussions with each grievor. Her assumption that all of the grievors were hired with a nursing - 6 - degree was clearly incorrect and an example of an incomplete inquiry. I therefore conclude that the Employer contravened the Collective Agreement when it failed to properly exercise its discretion when considering whether the grievors should receive the N 3 nursing allowance. [11] In considering an appropriate remedy, I am mindful that the grievors are not entitled as of right to the N 3 nursing allowance and that the breach here concerns how the Employer exercised its discretion. A proper exercise of management’s discretion may have resulted in the grievors being denied the nursing allowance. I therefore find it appropriate to refer the requests of the grievors for the N 3 nursing allowance back to the Employer in order that it can exercise its discretion properly, in light of the guidelines referenced previously. Dated at Toronto, Ontario this 6th day of May 2014. Ken Petryshen, Vice-Chair