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HomeMy WebLinkAbout1995-1156BEALE95_09_08 . ONT ARIa EMPL OYES DE LA COURONNE cr?OWN EMPLOYEES Ot CON r ARlO 1111 GRIEVANCE CpMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS I ISO DUNDAS STREET WEST SUITE 2100 TORONTO ONTARIO. M5G IZ8 TELEPHONE/TeLePHONE (476) 326-1388 180 RUE DUNDAS OUEST BUREAU 2100, TORONTO (ONTARIO) M5G IZs FACSIMILE ITELECOPIE (416) 326-1396 '- -. ~.,~>O~ ._________ ...___ lit:>';- "'-:":~ ...y. '-....... ') .. I GSB # 1156/95, 1158/95, 1159/95 ",' 11 '\:;0 r...... '...-~ t ~ f$ ,,/'.....,.., ,. ,,? I ~,.'i ;;\'I~ ;(., ~ J t.,', ( \~ i ''': '.. t,'1 JI- t, '< ~ />""''', la; I OPSEU # 95A113, 95A113, 95A113 .. ~ ~'''''J .... ..' I:~jir . I . W , . , SEP 1 1 '1995 IN THE MATTER OF AN ARBITRATION , I r-. ~. Under I l~ .J .." ... I t\ '" _. ~_ )~i,'-<~ ~ t:' h :'.' _:JrHE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT --...."'--. ........'-0 .....____ Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Beale et al) Grievor - and - The Crown in Right of Ontario (Ontario Science centre) Employer BEFORE W. Kaplan Vice-Chairperson FOR THE M. Keys GRIEVOR Grievance Officer Ontario Public Service Employees Union FOR THE D Chiro EMPLOYER Grievance Co-ordinator Management Board Secretariat HEARING August 29, 1995 .. ... 2 Introduction This case, concerning the social contract grievances of three employees of the Ontario Science Centre, proceeded to an expedited hearing in Toronto After hearing evidence and argument, and at the request of the parties given the urgent nature of this matter, I delivered an oral decision allowing the grievances and promising, as is customary with expedited hearings at the Grievance Settlement Board, brief written reasons to follow In effect the three grievances which proceeded to hearing, namely those of Ernest Beale, Shari Burnard and Catherine Kling, allege a violation of Article 4 1 2 of the Sectoral Framework Agreement reached pursuant to the Social Contract Act. That relevant part of that article provides. The employer and unions/associations agree that the following voluntary leaves wrthout pay should be encouraged and utilized to the extent possible and will establish procedures under local agreements to implement the following principles' (2) The employer agrees to provide extended educational leave, without accumulation of credits, for periods of a minimum of one school year The employer will provide up to a maximum of $5,000 reimbursement for costs incurred, including tuition, fees, books, travel and living expenses and related costs, subject to approval by the employer according to standards developed by each redeployment committee i While the local agreement refers to unpaid leaves, it makes no specific reference to subsection (2) 3 In the aftermath of the reachmg the Sectoral Framework Agreement, Management Board issued two documents relating to the specific interpretation of Article 4 12(2) The Operational Policy for Educational Leave provides in part that "the intent of the policy is to reduce the size of the civil service and promote savings by providing ready access to unpaid leaves for employees wishing to pursue an educational goal To maximize savings, ministries should backfill only if it is operationally mandatory Courses of study may be directly related to the workplace or they may be undertaken simply to achieve a personal educational goal" The Operational Policy for Educational Leave goes on to provide, under the heading "Approval," that "the Deputy Minister or designee is encouraged to approve the request for unpaid educational leave Approval of the leave is consistent with the overall goals of the Social Contract to reduce the size of the civil service and realize salary savings. Where operational requirements will be impacted by the employee's absence, the ministry will make workforce adjustments accordingly, and only backfill if operationally mandatory " In a "Question and Answer" document prepared by Management Board, the following question is asked "ls a ministry's need to backfill an employee on educational leave sufficient reason to deny the leave since any savings would be non existent or minimal?" The following answer is given ~ No Where a leave is discretionary, the ministry must take a number of factors into account in making a decision, most particularly the spirit of the social contract One "iron clad" rule for denial is not appropriate because it does not allow the manager to consider the individual circumstances of the employee 4 and the workplace and will not withstand a gnevance The Grievances The three grievances in this case were fIled following management's decision to turn down the grievors' applications for leave Each of the grievors works as a host at the Ontario Science Centre, and each of the grievors applied in writing for a leave to advance their education. Each of the applications was rejected by Mr R A. Beninati, the Associate Director, Community Programs Mr Beninati wrote each of the grievors denying their applications for a number of reasons including operational needs, and he referred in his letter to the fact that present government policy "does not allow us to backfill for leaves. " Mr Beninati testified that in rejecting these leave requests, he did not consider the merits of the individual applications, rather, he turned all three down on the basis that operational and fiscal exigencies precluded any leaves As he testified, his interest was /10t in the merits of the individual applications, but rather in the impact of the leave requests on his overall budget and on the operations of the facility It should be noted that some equivocal evidence was introduced with respect to the impact of the leaves, had they been granted, on the operations of the Science Centre. Suffice it to say, even assuming for the sake of argument that the employer was precluded from backfilling, the evidence does not establish that the operations of the institution would be 1 significantly impaired, if at all, by the granting of these leaves Employer Argument In the employer's submission, management maintained the discretion under both the sectoral and local agreements to deny leaves where its operations 5 would be hampered by its doing so In this case, there was evidence, Mr Chiro argued, suggesting an impact on operations by the granting of these leaves, and manag~.ment was, therefore, entitled to take that evidence mto account and deny the leaves. Moreover, there was some doubt, In the employer's submission, about the benefit to it of granting the leaves given the chosen fields of educational endeavour The future benefit to the Science Centre was far from clear This, the employer argued, was another reason for upholding the employer's decision not to grant the leaves Finally, turning to the language of the sectoral and local agreements, Mr Chiro noted that there was nothing requiring the employer to grant leaves. All that Article 4 12 stated was that leaves were to be "encouraged," and this encouragement was limited by the words "to the extent possible" The whole point of the Social Contract Act, and these other agreements was to reduce costs, and granting these leaves would increase them by creating a need to backfill Accordingly, Mr Chiro argued that management's actions should be upheld and the grievances dismissed Union Argument Union counsel began her submissions by reviewing the sectoral and local agreements, not to mention the interpretation documents subsequently prepared by Management Board, and arguing that the employer did not have the discretion not to grant a leave applicatipn under Article 4 12(2) In the alternative, the union took the position that even if leave applications were subject to managerial discretion, the employer had failed to properly exercise its discretion in this particular case As I have found, in my reasons for decision that follow, that the grievances should be allowed on the basis that the employer failed to properly exercise its dIscretion, it is 6 not necessary to consider Unlon counsel's first argument. Turning to her second argument, union counsel took the position that the employer is bound by Kuynties 513/84 (Verity) and other cases to consider a number of factors when called upon to determine leave applications. There was no issue in this case about discrimination or bad faith, no allegation was made to that effect. Rather, the union took the position that the employer had run afoul of the Kuynties case by applying a rigid policy rule to the leave applications, instead of genuinely exercising its discretion, and had, moreover, failed to consider the merits of the individual applications under review It had also, counsel argued, clouded its decision by failing to take into account relevant facts and by taking into account irrelevant facts. Counsel noted that Mr Beninati admitted that he never considered the merits of the applications, but rather denied them on the basis that it was contrary to the operational needs of the institution to grant them. This constituted, in the union's view, a failure to consider relevant factors Furthermore, counsel suggested, there was evidence that he took irrelevant considerations into account in that he purported to base his decision on a prohibition against backfills, when Management Board documents clearly indicated that these leaves should be granted, and that backfills were permissible where operationally required Counsel also took issue with the employer's claim that there would be a negative operational consequences from granting the leaves, and referred to some records in support of her assertion that there was no evidence that the leaves would cause any impairment whatsoever 7 For all of these reasons, counsel asked that the gnevances be allowed, that I declare that the grievors were entitled to their leaves, and that I direct that they be compensated according to the established criteria Counsel concluded by requestmg that I remain seized with respect to the implementation of my award Decision As noted above, following the presentation of evidence and argument, I allowed the grievances and promised written reasons to follow In brief, I find that the employer, for whatever reason, failed to properly exercise its discretion in the consideration of the three leave applications As is noted in the Management Board documents, an "iron clad" rule is not likely lito withstand a grievance." In this case, the employer denied the grievances on the basis of such a rule, and gave no consideration whatsoever to the individual merits of the applications In addition, the evidence indicates that the employer based its decision, at least in part, on irrelevant considerations It stated that it could not backfill for the jobs, when Management Board documents are quite clearly to the contrary if operational needs require Moreover, even some of the employer's after the fact justifications for its decision do not withstand scrutiny Management Board documents, which must surely provide management with a guide for the exercise of its discretion, indicate that course of study need not be . directly related to the workplace Yet, one of the reasons later advanced in support for the decision not to grant the leaves was the "questionable" benefit to the institution Even assuming for the sake of argument that the benefit was questionable (and having reviewed the applications this is an assumption I do not share), the Management Board documents indicate that 8 the leave can be for any reason Considered as a whole, one can only conclude the decision was not, as Management Board has dIrected, in compliance with "the spirit of the Social Contract Act" and that Article 4 12(2) has been breached I so decla re The leaves must therefore be granted, and the grievors properly compensated I remain seized with respect to the implementation of this award DATED at Toronto this 8th day of September 1995 t / ...___________-- ,/ ---------------- William Kaplan Vice-Chairperson ~