Loading...
HomeMy WebLinkAbout1990-1030.Mayers.92-01-02 , Î ~ ;. , ,'; ~ ONTARIO EMPLOY~S DE LA COURONNE . CROWN EMPLOYEES DEL'ONTAAIO 1111 GRIEVANCE COMMISSION DE , SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUrTE 2100, TORONTO, ONTARIO, M5G IZ8 TELEPHONEITÚ¡;PHONE: (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2 rOO, TORONTO (ONTARIO), M5G IZ8 FACS/MILEIT¡;utCOPIE ," (416) 326- 1396 1030/90 IN THB MATTBR OP AN ARBITRAT:ION Onder THE CROWN EMPLOYEES COLLECT:IVE BARGAINING ACT Before THE GRIEVANCB SETTLEMENT BOARD BETWEEN OPSEU (Mayers) Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer BEFORE: B. Kirkwood Vice-Chairperson I. Thomson Member M. O'Toole Member FOR THE M. Bevan GRIEVOR Grievance Officer Ontario Public Service Employees Union FOR THB S. Gleave EMPLOYE!! Counsel Hicks, Morley, Hamilton, stewart, storie Barristers & Solicitors HEARING November 15, 1990 May 14, 1991 I Page 2 . DECISION The grievor asked the Ministry for a one year leave of absence to take his B.A. in educa.tion at West,ern University. When the leave was denied, the grievor instituted this grievance, and sought the leave. Due to the grievor's desire to pursue his educat:~on, the grievor resigned voluntarily on September 14, 1990 to att:end university. The grievor has since obtained his degree and is working with the Hamilton Board of Education. As the grievor no longer wished to return to t.he Ministry, he sought a declaration that the Ministry had violatf~d the collective agreement by denying him the leave. At the beginning of the hearing the Ministry's counsel challenged the Board's jurisdicticm. The Ministry submitted that we did not have jurisdiction as the grievor could not be awarded educational leave a.s the grievor no longer had employee status. Counsel for the Ministry argued that the grievor could not now amend his grievance to ask for a declaration that the collective agreement: was breached, as the grievor was bound to his original grievance. In the alternative, the Ministry's counsel argued that the matter was inarbitrable as any remedy that the Board would fashion would be moot. The Union's representative argued that the Ministry had waived its right to contest the Board's jurisdiction as this issue had not been raised until the hearing had commenced. Parties can be found to have waived their rights to challenge issues of procedure when ,they do not raise the issue at an early stage. The failure to raise an issue lulls the other party into believing that thl~re is no issue. . ¡, Page 3 ~ However, waiver applies to matters of procedure and not . matters of substance. If our jurisdiction were successfully challenged, we would have no power to make a binding order. Therefore, on matters of substance, the parties must be given t.he opportunity to make full arguernent on the issue. According ly we adjourned the hearing after having heard the Ministry's arguement to allow the Union an opportunity to I respond. I I Although we allowed the adjournment, an issue as significant as this ,should not be raised for the first time at the hearing. The purpose of the grievance procedure is to air the various positions, to have full disclosure to facilitate the possibility of settlement, failing which the parties proceed to arbitration, fully aware of the case which they have to meet. Although counsel was new to this case, we are not satisfied that full attempts were made to advise the Union of the Ministry's position as early as possible. We reconvened on May 14, 1991 and heard arguement on the preliminary objection and heard the evidence and arguement on the merits of the case. l The ,gr ievor was an employee at the time that he was denied the unpaid leave. He filed a grievance in a timely manner, while he was employed. By claiming that the employer wrongfully denied the gri9vor leave, the grievor relied upon a right which he had at the time of the filing of the grievance, the right to the proper administration of the collective agreement. We have the jurisdiction under section 19(1) of the Crown Employees' Collective Bargaining Act to determine if the collective agreement has been breached. Our authority is to determine the remedy, if we find that the collective agreement has been breached. · Page 4 , We do not find that the Union was amending the grounds of the grievance by now seeking a declaratory order instead of the leave. As in Re Elect, rohome Lt.d. and Int.ernat.ional Brot.herhood of Electrical Workers, Local 2345 16 L.A.C. (3d) 78 (W. B. Rayner) the Board is bound by the grievance before it. However, the board must interpret the grievance liberally to come to grips with the issues. If the issues are part of the original grievance, the jurisdiction should not be denied. In this case the issue is whether the employer wrongfully denied the grievor the leave. In order to . ¡ . .-; Page 5 ·r ," Our case is analagous to Durham Regional Roman Catholic Separate School Board and C.U.P.E., Local 218 (G.J.Brandt) January 24, 1991. That board endorsed the ,general proposition Re Inco and United Steelworkers of America, Local 6500 9 L.A.C. ( 2d) 83 (Simmons) at p. 86 that lTin the interests of those concerned in the collective bargaining proce~s where differences between parties remain unresolved to the satisfaction of the parties those differences ought to be arbitrated." The board held that it had jurisdiction to consider whether a grievor was ,improperly denied unpaid leave to take a honeymoon,. even though the grievor subsequently was ill when she was to have taken her honeymoon. This case is unlike the American Can of Canada and Corporation of The City of Etobicoke cases, as the effect of a declaration was not tò determine a matter of policy., Similarly, we find that the grievor filed his grievance within the time limits set out in the collective agreement. The issue of whether the employer had properly administered the collective agreement by denying the grievor educational leave had not been settled prior to the arbitration and that parties have a right to have the matter settled in this case by arbitration. Therefore the issue is not moot. . It is merely that the declaration sought has no monetary value. Nor does a declaration in this case convert the individual grievance to a policy grievance. This case relates to the specific circumstances that surround the grievor's request for the leave. ,~ Therefore we find that this grievance is arbitrable and we have jurisdiction to consider whether the collective' agreement was breached, and to determine the appropriate remedy if the collective agreement has been breached. We now turn to the merits of the grievance. , , Page 6 The grievor worked at the Hamilton Detention Centre from May 5, 1985 to September 14, 1990. The grievor became a Correctional Officer 2 upon completing his probationary period. On January 15 1990, Mr. Featherstone, a Senior Assistant Superintendent, invited the grievor to be interviewed for participation in a three year management trainee course in the Ministry's :E:mployment Equity Program. The goal of the program was to 'train five employees from under-represented gr01;1ps to reach t:he middlE~ management level of AM 17 within a period of three yea~s. The grievor fell within one of the identified groups. The program was to start in April 1990. The grievor testified that when Mr. Featherstone asked him to participate in the management trainee program, he told him that he had applied to Western ,University to take his B.A. program in education in the upcoming year. The grievor told Mr. Featherstone that he expected to hear whether he would be accepted by March 26, 1990. Mr. Featherstone denied learning of t.he grievor's plans in the January meeting. The grievor advised Mr. Featherstone that he would not be participating in the management training program at the first meeting of the program. The grievor discussed his request with Mr. Kalnins, the Senior Assistant Superintendent before he submitted his written request for leave. Mr. Kalnins advised the grievor that the request had to be worded very carefully. The grievor was not able to meet Mr. Kalnins to review his request with him before he made his written request, as he was working from 7 p.m. to 7 a.m. during his wife's l I A' ~ , Page 7 .. '~ pregnancy. After his daughter was born on March 1, 1990, he took six weeks leave to assist his wife and to complete three university courses. The grievor returned to work on April 9, 1990. The grievor submitted his written request to Mr. Villeneuve, the Superintendent of the Centre on May 31, 1990. The grievor explained tht ,he had to move to London to obtain I· the degree. The grievor advised Mr. Villeneuve that he wanted his degree in education in order that he could become an accredited teacher and could compete effectively for a teaching position in the staff training college, which he believed would soon be opened in Hamilton or alternatively to become a teacher at the Centre. He expressed his interest to return to active duties at the completion of his studies.' In the week of June 24, 1990, the grievor received notice that his request for leave was denied as it was IInot beneficial in any way to the Ministry.1I Mr. Kalnins later explained te the griever that the Ministry did not think that the grievor intended to return to the Centre. He expressed regret that the leave was denied, but told the griever that he was a good employee and that any future application would be looked upon favourably by the Ministry. As the grievor , able take his degree was not to while working at the Centre he resigned in September. Article 29 states: ARTICLE 29 - LEAVE WITHOUT PAY 29.1 Leave-of-absence without pay and without the accumulation of credits may be granted to an employee by his Deputy Minister. I Page 8 , \ , Article 29 has not placed any parameters on the employer's right to exercise its discretion when considering unpaid leaves of absence. However, the right is not unfettered. The Grievance Settlement Board, as has other boards of arbitration of private matters, has found that discretionary decisions must be exerciSE~d reasonably and within the constraints of administrative :Iustice. As Vice- chairperson Swinton stated in Re Young and The Crown in Right of Ontario (Ministry of Community and Social Services) 24 L.A.C. (2d) 145 (K. Swinton) ; An arbitration board, in subsequently assessing what the employer has done in reaching its decision, then plays a restr ict,ed role. It must decide whether the employer has acted reasonably and without discrimination and has turned its mind to the merits of the particular request. If satisfied that these criteria have been met, the board must deny the grievance, even if it disagrees with the result reached by the employer or if it might have reached a decision other than that reached by the employer. The board's concern is the reasonableness of the dE!C is ion, not its "correctness" in the board's view. Our role is very limited. Vice-chairperson Verity in OPSEO(Kuyntjes) and the Crown in Right of Ontario (Ministry of Transportation and Communications) 513/84 (Verity) reviewed the arbitral jurisprudence and concluded that generally arbitration boards are hesitant to substitute their decision for the person exercising discretion, but do intervene if the discretionary decision was not made within the confines of certain minimum standards of administrative justice. These standards have been summarized in OPSEO(Culkeen) and The Crown in Ri.ght of Ontario Ministry of Correctional Services GSB 890/89 (M.R.Wright) as follows: J ¡, ," - .- Page 9 ,. !r; 1. The deéision must be made in good faith and I 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 under review. 4 . All relevant facts must be considered and conversely all irrelevant considerations must be rejected. Therefore our role is not to decide whether the employer's decision was correct, nor whether we would have made the same decision. Our role is to determine whether the request was considered in a fair and honest manner and whether the employer's decision was reasonable in the circumstances. When considering these objectives and the standards above, we must consider both the process that was followed and the facts surrounding the request. 'The Deputy Minister has the discretion to determine whether the unpaid leave is to be given. The authority to grant one year's unpaid leave of absence was given to Mr. Villeneuve. The hearing substantiated that Mr. Villeneuve had all the relevant facts before him when considering the request The grievor made his request for the leave in a timely manner. We accept his evidence that he told " Mr. Featherstone in January that he wished to continue his studies, if possible. He told the Ministry as soon as he received his acceptance, that he would not be participating in the management trainee program. The grievor requested his leave in writing in May 1990. Mr. Villeneuve knew that the grievor received B . A . in , . . , Page 10 The grievor qualified for the management: program and had excellent management potential without having another degree. Mr. Villeneuve questioned the benefits that a teaching degree would give a Senior Manager. Mr. Villeneuve acknowledged that if the grievor had no ot he r degr1ee s, a degree in education would be useful, but he did not see an advantage in the grievor obtaining another degree. In his view the grievor was one of the three best officers at the Centre and "r':. ~ ~ (- _ Page 11 ~ of his degree in education, it was of no assistance to the employer as the Ministry cannot require the Board of Education to assign grievor a teaching position at the Centre, even if there had been a vacapcy. The Ministry employed a Co-ordinator of Educational Programs in the Adult Unit, whose role was to co-ordinate the work of approximately 61 volunteer teachers of remedial reading. Although the Co-ordinator taught a little, and was a qualified teacher, he did not need a teaching certificate as this position was administrative. The grievor already had the qualifications to compete for this position had there been a vacancy. The grievor asserted that a degree in education would enable him to develop his skills in curriculum development and specifically help him develop a course on race relations. The Centre had an extensive staff training program. The grievor admitted that he did not need a B.A. to work in staff training. Although a degree may be an asset in this field, we as a board of arbitration, cannot act as if we were the employer and decide for the employer that it ought to have someone of these qualifications. The union alleged that the grievor was discriminated against as other Correctional Officers had been given leave at other times. There was no comparison to Ms. Nagy's situation. Ms. Nagy was a shift supervisor who was given leave. She had lost a job competition and her position would have been redundant. There was a cost saving to granting her a leave. A more comparable situation is that of Mr. McPhee. Mr. MacPhee, another Correctional officer' had been granted one year's unpaid leave of absence the previous year to . . . Page 12 complete his B.A. Mr McPhee had wi thdra,wn from the B.A. program for economic reasons with two courses short of the degree. He requested the leave to completE! the degree as he was able to support himself f inancia'lly for the year. Mr. Villeneuve granted the leave. Although the request for a one year's leave for a B.A. was the same and the cost of replace:ment staff during the absence was i -lL~ or .. . , Page 13 " grievor decided not to participate in the management trainee program there were no ·positions that were available along the career that the grievar had chasen. It was reasonable far the Ministry to refuse the leave where there is no apparent benefit to the Centre. Due to these considerations, Mr. Villeneuve did not act in an arbitrary or discriminating manner when considering the grievor's application. In' summary, the issue is not whether Mr. Villeneuve was right. It is whether he gave a fair and honest assessment to the grievor's application. We find that he did. There was no apparent benefit to the Centre as the Centre did not employ teachers. Nor wa s ,there apparent benefit ,to the grievor's advancement within the centre. He was asking leave from the Centre solely for his own personal benefit. Therefore we cannot find that the employer acted unreasonably in denying the leave, which created costs for the employer to train and pay for a replacement employee, while providing the tools for the grievor to leave the institution permanently. The grievor, himself, recognized that there was,no vacancy at the Centre as he stated that he would be looking elsewhere in the Province for a position. An employee such as the grievor may be an excellent asset to the Centr~, but it is not within our role to act as the employer and determine that the employer needed a person with these credentials and ought to have assisted the grievor. . . , . . ' ~ Page 14 ; Accordingly, this grievance is dismissed. Dated at Toronto, this 2nd day of .January, 1992. ~/ ' t - ~~// B. A. Kirkwood, Vice-Chairperson ~ I. Thomson, Union Member m·,~ ¿)~~ - M. OtToole, Employer Nominee , I