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HomeMy WebLinkAbout2002-0994.Cherwonogrodzky et al.04-04-14 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2002-0994 2002-0995 2002-1328 2002-2529 2002-2876 2002-2973 2002-2974 2002-2988 2002-3095 2002-3241 2002-3246 2003-2728 UNION# 02A737 02A738 02F038 2002-0202-0015 2002-0202-0016 2002-0202-0017 2002-0202-0018 2002-0230-0017 2003/0340/0001 2003-0202-0001 2003-0202-0002, 2003-0202-0003 2003-0202-0005 2003-0230-0001 2003-0340-0001 2003-0599-0005 2003-0599-0011 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Cherwonogrodzky et al) Grievor - and - The Crown In RIght of Ontano (Mimstry of FInance) Employer BEFORE Owen V Gray Vice-Chair FOR THE UNION GavIn Leeb BarrIster and SOlICItor FOR THE EMPLOYER Fateh SalIm Counsel Management Board Secretanat HEARING March 28 Apnl3 & 10 September 8 & 30 October 20 & 28 2003 TELEPHONE CONFERENCE November 13 2003 WRITTEN SUBMISSIONS November 13 & 24 December 1 2003 2 DeCISIon [ 1] More than 100 tax audItors employed by the MmIstry of Fmance gneve the employer's refusal to reImburse them for the several hundred dollars m dues that they each pay annually to mamtam membershIp In one of the three professIOnal accountants' orgamzatIOns m Ontano - the CertIfied General Accountants ASSOCiatIOn of OntarIO, the InstItute of Chartered Accountants of Ontano and the SocIety of Management Accountants of OntarIO Although these are mdIvIdual gnevances to whIch the mediatIOn/arbItratIOn procedure under ArtIcle 22 16 would apply, wIth reference to ArtIcle 22 16 7 the partIes have agreed that the decIsIOn m thIS matter wIll have "precedentIal value" [2] WhIle the partIes' collectIve agreement does not expressly reqUIre reImbursement of these professIOnal dues, the umon's posItIOn IS that the employer's faIlures to reImburse were nevertheless breaches of the collectIve agreement It relIes on a government-wIde polIcy, applIcable to all mmIstnes, that "Payment of membershIp fees may be authonzed when membershIp m an orgamzatIOn IS beneficial to the mmIstry" It says that by refusmg to reImburse the gnevors' membershIp dues under the aforesaid polIcy, the employer has breached an ImplIed oblIgatIOn to exerCIse management nghts m a manner that IS reasonable and not arbItrary, dIscnmmatoryor m bad faith. Professional Designations and Memberships [3] Central to the Issues m these proceedmgs IS the lmk between membershIp m one of the professIOnal accountants' orgamzatIons and the professIOnal desIgnatIon conferred by that orgamzatIOn. Each of the professIOnal accountants' orgamzatIOns offers courses m accountancy and wIll confer a professIOnal desIgnatIOn - "CertIfied General Accountant" ("CGA"), "Chartered Accountant" ("CA") or " CertIfied Management Accountant" ("CMA") - on a member who attams prescribed levels of educatIOn and related expenence m accountancy When the mItIals "CA", "CGA" or "CMA" appear besIde an mdIvIdual's name, they sIgmfy that that mdIvIdual has 3 achIeved a certam level of educatIOn m accountancy In that way, the desIgnatIOn IS lIke a umversIty degree [4] In one very Important respect, however, a professIOnal desIgnatIOn IS not lIke a umversIty degree As a matter of law, someone who has attamed a desIgnatIOn may only describe themselves to others as a "CGA", "CMA" or "CA" If he or she IS currently a member of the orgamzatIOn that Issued the desIgnatIOn. In addItIon to sIgmfymg attamment of a certam level of educatIOn, the use of the desIgnatIOn mItIals denotes current membershIp m the IssUIng orgamzatIOn. MembershIp oblIgatIOns mclude adhermg to prescribed standards of conduct and takmg a certam amount of contmumg educatIOn. [5] The MmIstry values the educatIOn that IS acqUIred m attammg one of these professIOnal desIgnatIons It reqUIres that an applIcant for a tax audItor posItIOn classIfied at the TA4 or TA5 level have eIther attamed a profeSSIOnal desIgnatIOn or completed umversIty courses that the MmIstry regards as the academIc eqUIvalent of the coursework mvolved m a professIOnal desIgnatIOn. The MmIstry wIll reImburse tax audItors m lower classIficatIOns theIr costs of completmg the trammg that leads to a professIOnal desIgnatIOn, mcludmg the cost of the student membershIp that IS a prereqUIsIte to receIvmg the trammg from those orgamzatIOns The MmIstry has ItS own reqUIrements concermng contmumg educatIOn and conduct. WhIle It reqUIres that applIcants for certam tax audItor posItIOns have attamed a professIOnal desIgnatIOn at some pomt m the past, current membershIp m the orgamzatIOn that Issued the desIgnatIOn IS not reqUIred, eIther at the tIme of promotIOn (or hIrmg) to the posItIOn or thereafter [6] The MmIstry of Fmance has not reImbursed and, as a matter of polIcy, does not reImburse any of ItS tax audItors (or any of theIr managers) the costs of ongomg membershIp In a professIOnal accountancy organIzatIon, except when student membershIp IS necessary m order for the employee to take educatIOnal courses that the employer reqUIres or encourages the employee to take 4 Issues [7] In Its partIculars the umon alleged, among other thmgs, that The Mimstry benefits from employees possessmg a professlOnal desIgnatIon [because] It removes a systemIC barner to advancement for those persons who reqUIre the desIgnatlOn to obtam a promotlOn and/or otherwIse Improve theIr employment sItuatlOn wIthm the Mimstry possessmg the desIgnatlOn IS a reqUIrement for obtammg and mamtammg certam pOSItIons wIthm the Mimstry mcludmg the TA4 and TA5 pOSItIons for those persons who do not otherwIse meet the qualIficatlOns current Job descnptIOns state that a profeSSIOnal desIgnatlOn IS reqUIred If the mcumbent does not otherwIse qualIfy by way of, for example posseSSlOn of a umversIty degree the scormg for Job competItlOns IS weIghted m favour of canchdates who possess a deSIgnatIOn The Mimstry has recogmzed that professlOnal desIgnatlOns were reqUIred for the work performed by employees m connectlOn WIth the Tax Integnty Program Phase Two, In Job competItlOn # 001168 adchtlOnal pomts were awarded to canchdates who possessed a desIgnatlOn A phrase lIke "havmg a deSIgnatIOn" or "possessmg a deSIgnatIOn" can be ambIguous It may mean havmg attamed the deSIgnatIOn at some past tIme, or It may mean havmg both attamed the deSIgnatIOn and mamtamed the current membershIp that allows use of the deSIgnatIOn mItIals WhIle ItS pOSItIOn at the outset may have been dIfferent, m the end the umon dId not contend that current membershIp was m fact a reqUIrement of any of the gnevors' pOSItIOns, or that pomts had been awarded m Job competItIOns for havmg mamtamed membershIp followmg the attamment of a deSIgnatIOn. [8] The allegatIOns on whIch the umon relIed m closmg argument were essentIally that the MmIstry of Fmance does m fact benefit from ItS tax audItors' mamtammg theIr profeSSIOnal membershIps, and has behaved as though It thought membershIp was of benefit to It, and would further benefit from reImbursmg all such dues It submItted that thIS IS suffiCIent, m the absence of explanatIOn of ItS deCISIOn by the MmIstry, to support a findmg that the employer had acted unreasonably and m an arbItrary manner by denymg reImbursement [9] The employer's pOSItIOn IS that because ItS polIcy IS not part of the partIes' collectIve agreement, It IS for the employer, and not thIS Board, to determme whether the membershIps m questIOn would be of benefit to It It contends that ItS deCISIOn m 5 that regard IS not subJect to reVIew for reasonableness, as the decIsIOn does not adversely Impact any nght under or prOVISIOn of the collectIve agreement In any event, It says, the eVIdence does not demonstrate that the reImbursements sought here would be of such benefit that ItS decIsIOn not to reImburse the dues can faIrly be charactenzed as unreasonable or arbItrary [10] Before analysmg the partIes' posItIOns and the eVIdence m support of them, I mentIOn a problem that arose after the hearmg had ended Post Hearing Submissions [11] After the presentatIOn of eVIdence and argument were complete, counsel for the umon wrote a letter to the Board settmg out addItIonal submIssIOns m support of ItS posItIOn. The Board had not requested addItIonal submIssIOns on the matters raIsed. Before sendmg the addItIonal submIssIOns to the Board, counsel for the umon had sought and been demed the agreement of employer counsel to hIS domg so When umon counsel filed submIssIOns wIthout hIS agreement or leave of the Board, employer counsel obJected that I should not take the addItIonal submIssIOns mto account [12] ThIs dIspute became the subJect of a telephone conference m whIch employer counsel made reference to several court decIsIOns deprecatmg the post hearmg contmuatIOn of submIssIOns wIthout mVItatIOn or leave Counsel for the umon saId that he had been mvolved m other matters m whIch umnvIted post hearmg submIssIOns had been made to arbItrators wIthout cntIcIsm, that he was unaware of any reqUIrement for leave, that such a reqUIrement would be unduly formalIstIc m a labour relatIOns context and that If leave was nevertheless reqUIred I should grant It. [13] In Walker Estate v York Finch General Hospital, [1998] 0 J No 2271, JustIce Bonns made these observatIOns ~'3:3 What occurred subsequent to thIs hearmg reflects a practIce that has developed m the past few years whIch suggests that m the VIew of some counsel, subsequent to a hearmg It IS appropriate to contmue the hearmg by entermg mto commumcatlOn chrectly wIth the Judge ThIS practIce was VIrtually unheard of m the past ~'34 The practIce of commumcatmg chrectly wIth a motlOns Judge or a trial Judge after a hearmg has been concluded, puts the Judge m a dIfficult pOSItIon. The Judge 6 feels that It mIght be unfaIr to the party to Ignore the commumcatlOn WIth the result that the Judge re-opens the hearmg or takes the adchtlOnal material mto consIderatlOn. In my VIew a Judge need not consIder umnvIted commumcatlOns sent chrectly to hIm or her after the concluslOn of the hearmg Indeed, I do not belIeve that I would be CritIcIzed If I Ignored the materials sent to me by counsel m thIs case ~'35 In my VIew thIS practIce IS wrong and should stop Although a WIse sage once SaId It am t over It s over when a hearmg has been concluded, It IS over There must be a finalIty to hearmgs If counsel feels compelled to contmue a hearmg after ItS concluslOn he or she should follow the appropriate procedure by brmgmg the appropriate motIon. If chssatIsfied WIth the result appellate procedures are aVaIlable I take It that "the appropnate motIon" refers to a motIon for leave to reopen a hearmg to permIt the mtroductIOn of further submIssIOns or eVIdence, as the case may be The VIews expressed m the above quoted passage were adopted m Goodyear Canada Inc. v Jet Centre Management Ltd., [1998] 0 J No 4124 (Templeton, J) and Docouto v Ontano, [2000] 0 J No 3322 (NordheImer, J), where Judges noted havmg receIved and Ignored post hearmg or post-tnal commumcatIOns [14] WhIle labour arbItratIOn hearmgs dIffer from court proceedmgs m a number of respects, umnvIted post hearmg submIssIOns create the same sort of dIfficultIes for an arbItrator as they do for a Judge, and the need for finalIty IS at least as great m the labour arbItratIOn context. Dependmg on the CIrcumstances, that need for finalIty may outweIgh whatever conSIderatIOns are saId to favour reopemng a hearmg to receIve further submIssIOns [15] In my VIew If one party wants a completed hearmg re opened so that addItIonal eVIdence or argument can be put before the arbItrator, then as a matter of courtesy to the other partIes and of respect for the process It should first seek the consent of the other party or partIes If another party obJects, then a party who stIll seeks to reopen should send the arbItrator a wntten request for leave to reopen, copIed to the OppOSIte party or partIes It should not SImply put the eVIdence or argument before the arbItrator m an apparent attempt to pre empt the OppOSIte party's nght to obJect to the reopemng [16] A request for leave to reopen should set out the reasons why the requestmg party says the arbItrator should reopen the hearmg to receIve the further eVIdence or argument rather than gIve effect to the need for finalIty, and describe the mtended further eVIdence or argument only as much as may be necessary to explam those reasons The OppOSIte party or partIes should not conSIder themselves oblIged to 7 respond to the applIcatIOn for leave unless the arbItrator asks them to do so The arbItrator should not ask for theIr response, and should sImply dIsmIss the request, If the request does not make an arguable case for reopemng If the request makes an arguable case for reopenmg, then the other partIes should be gIven an opportumty to answer It before the decIsIOn whether to grant leave IS made If leave IS granted, It should only be on terms that afford the other partIes the opportumty to respond to any new matenal on the ments [17] In thIS case, umon counsel sought only to make further submIssIOns, not to mtroduce addItIonal eVIdence WhIle he described the new submIssIOns as mere clanficatIOns of earlIer ones, there was at least one pomt that counsel for the employer faIrly charactenzed as "new" In my VIew, a number of consIderatIOns weIghed agamst my refusmg to entertam the submIssIOns The legal and mterpretIve Issues were apparently of Importance to the partIes beyond the CIrcumstances of these gnevors and thIS MmIstry The umon and employer had mvested consIderable hearmg tIme m gettmg to a pomt at whIch It could faIrly be saId that those Issues had been fully explored. The partIes had agreed that the result m these proceedmgs would have "precedentIal value" A refusal to consIder the new submIssIOns mIght have weakened or have been thought to weaken the precedentIal value of the resultmg decIsIOn. Takmg the addItIonal wntten submIssIOns and any wntten employer response mto account would not reqUIre addItIonal oral hearmg tIme, and seemed unlIkely to appreciably delay the release of a decIsIOn. In those CIrcumstances I undertook to consIder the addItIonal submIssIOns and awards cIted m support, as well as any response that the employer wIshed to make, whIch It was gIven an reasonable perIOd of tIme to provIde Accordmgly, I have consIdered the addItIonal submIssIOns and employer counsel's response Analysis Whether the grievances are arbitrable [18] The employer contended from the outset that these gnevances were not arbItrable, m that they dId not mvolve a dIspute about the mterpretatIOn, applIcatIOn, admmIstratIOn or alleged vIOlatIOn of the collectIve agreement. The employer was 8 content to have that Issue argued and decIded after the partIes had had an opportumty to put eVIdence before the Board wIth respect to the umon's allegatIOns on the ments [19] The polIcy statement on whIch the umon relIes appears under the headmg "Other Employee Expenses," m a document that also sets out mandatory reqUIrements and gUIdelmes concermng the use of government funds and facIlItIes for hospItalIty and busmess related meals Other Employee Expenses 1 MembershIp fees Payment of membershIp fees may be authOrized when membershIp In an orgamzatlOn IS beneficIal to the mmIstry or when reqUIred, under the prOVISlOns of collectIve agreements MembershIps are NOT consIdered a taxable benefit to employees when the mmIstry IS the primary benefiCIary of the membershIp ThIS would be the case when the employee s professlOnal membershIp IS necessary for the effectIve performance of hIs/her dutIes [20] Employer counsel observed that reImbursement of membershIp fees IS a matter on whIch ItS collectIve agreement WIth OPSEU IS SIlent, and that the deCISIOn whether or not to reImburse the membershIp fees of employees covered by that agreement IS sImply the exerCIse of a reserved management nght He submItted that when there IS no allegatIOn that a partIcular exerCIse of management nghts IS prohibIted by a prOVISIOn of the collectIve agreement, management actIOn IS not subJect to an ImplIed reqUIrement of reasonableness unless that actIOn has some Impact on nghts contamed m the collectIve agreement In that connectIOn he cIted Anderson et aI, 1093/01 (Brown, June 27, 2003), Nunn, 141/93 (Kaufman, Apnl 10, 1995), COIpOratiOn of the City of Etobicoke and CUPE, Local 185 (1996), 54 L.AC (4th) 229 (Sprmgate), Czekierda & Kubiak, 0205/88 (Sprmgate, Apnl 28, 1989), Re York RegiOn Roman CatholiC Separate School Board and OECTA (1995), 52 L.AC (4th) 285 (Kaplan) and Ashley et aI, 2001 1700, etc. (Abrahmsky, November 5, 2003) He submItted that these gnevances are sImply marbItrable m the absence of an allegatIOn that some partIcular collectIve agreement nght was adversely affected by ItS deCISIOn not to reImburse the professIOnal membershIp fees of a Tax AudItor [21] The polIcy on whIch the umon relIes states that payment of membershIp fees "may" be authonzed m eIther of two CIrcumstances when membershIp IS benefiCial to the mmIstry or when payment IS reqUIred under the prOVISIOn of a collectIve agreement. 9 Umon counsel argued that because the employer has no chOIce but to reImburse when a collectIve agreement so reqUIres, the word "may" must be mterpreted to mean "shall" m thIS context, and that thIS polIcy IS therefore an undertakmg that an employee's membershIp fees wIll be reImbursed when membershIp IS beneficial to the MmIstry He cIted Anderson, 2183/02 (Stewart, September 30, 2003), Rupert, 374/84 (Gorsky, October 8, 1985), KuyntJes, 513/84 (Venty, Apnl 9, 1985), Re The Queen 1ll nght of Ontano and Ontano Public Service Employees' Ulllon et a1. (1984), 45 0 R (2d) 361 (Ont DIV Ct.), and Re Brampton Hydro Electnc COn1l11lSSlOn and CA. W Canada et a1. (1993), 108 D L R. (4th) (Ont DIV Ct) m support of the proposItIOn that an employer's decIsIOn m exerCIse of ItS management nghts IS subJect to the test of reasonableness, and that whether It has complIed wIth ItS own polIcy statements IS a standard agamst whIch the reasonableness of the decIsIOn can be assessed. [22] Umon counsel submItted that the wage prOVISIOns of the collectIve agreement can be affected by a decIsIOn whether to reImburse membershIp fees, because reImbursement would be akm to a wage Increase He also argued that the reImbursement polIcy IS among the "rules and regulatIOns" that must be reasonable havmg regard to the emphasIzed portIOns of the followmg artIcle of the collectIve agreement. Article 2 Management Rights 2.1 For the purpose of thIs Central CollectIve Agreement and any other CollectIve Agreement to whIch the partIes are subject the rlf.{ht and authontv to manaf.{e the bw-ilne,"'," and direct the workforce lflcludlflf.{ the rlf.{ht to hIre and layoff, appomt assIgn and chrect employees evaluate and classIfy pOSItIons chscIplme chsmIss or suspend employees for Just cause determme orgamzatlOn staffing levels work methods the locatIon of the workplace the kmds and locatlOns of eqUIpment the ment system trammg and development and appraIsal and make reasonable rule,,, and regulation" "hall be vested exclu,"1Ve~v lfl the Emplover It IS agreed that these nghts are subject only to the prOVISlOns of thIs Central CollectIve Agreement and any other CollectIve Agreement to whIch the partIes are subject. Umon counsel submItted that a polIcy that permIts an unreasonable outcome IS Itself unreasonable, so If the applIcatIOn of the polIcy here IS unreasonable then the polIcy Itself IS unreasonable and, therefore, contrary to ArtIcle 2 1 If the polIcy could not be reVIewed by the Board, he observed, then It would leave open the potentIal for favountIsm m a matter that, m essence, affects employee compensatIOn. 10 [23] Employer counsel submItted that alleged Impact on the prOVISIOns of the reserved management nghts clause (ArtIcle 2 1) Itself cannot be used as the basIs for an ImplIcatIOn that management nghts must be exercIsed reasonably, that there must be some other prOVISIOn of the collectIve agreement on whIch the Impugned actIOn allegedly Impacts In any event, he saId, the phrase "rules and regulatIOns" m ArtIcle 2 1 refers to rules and regulatIOns that govern the conduct of employees, not a polIcy lIke thIS that outlmes the CIrcumstances m whIch reImbursement may occur [24] My analysIs of thIS Issue begms WIth the umon's charactenzatIOn of the polIcy statement on reImbursement of membershIp fees as an "undertakmg" to bargammg umt employees that payment "shall" be made m certam CIrcumstances [25] On ItS face the polIcy statement IS a payment authonzatIOn. I do not accept that It IS an undertakmg to employees, nor that Imposes a payment reqUIrement Payment of membershIp fees IS authonzed If a collectIve agreement so reqUIres or If the membershIp would be of benefit to the mmIstry The authonzatIOn does not Impose a reqUIrement that payment be made m eIther case The fact that payment IS authonzed when a collectIve agreement so reqUIres does not transform the authonzatIOn Itself mto a reqUIrement Nothmg m the document supports the notIon that thIS was an "undertakmg" to the umon, or to the employees It represents, that the employer would exerCIse ItS management nghts m a partIcular way There IS no allegatIOn or eVIdence that the employer dId or saId anythmg that would have led the umon to understand It m that way nor, mdeed, any eVIdence that It dId understand It that way [26] I am not persuaded that the polIcy statement m Issue IS an mstance of what ArtIcle 2 1 refers to as "rules and regulatIOns" When used m a management nghts clause, that phrase generally describes reqUIrements of general applIcatIOn that an employer Imposes on employees concermng theIr conduct or Job performance ExammatIOn of the other examples of management actIOn enumerated m ArtIcle 2 1 supports employer counsel's argument that the phrase IS used m that sense m ArtIcle 2 1 It IS dIfficult to Imagme that by agreemg that "rules and regulatIOns" would be reasonable the employer mtended or the umon belIeved that any decIsIOn of general applIcatIOn that the employer mIght announce concermng how It would thereafter manage ItS operatIOns would be exposed to arbItral reVIew for reasonableness I find 11 that the polIcy statement m Issue here IS not somethmg that ArtIcle 2 1 expressly reqUIres to be reasonable I would add that I do not accept the argument that a rule or regulatIOn IS unreasonable merely because It mIght be applIed m an unreasonable way or wIth an unreasonable outcome [27] The umon cItes Anderson, 2183/02 (Stewart, September 30, 2003) for the proposItIOn that decIsIOns concermng reImbursement of membershIp fees under thIS polIcy statement can be revIewed for reasonableness at arbItratIOn. In that case, the gnevor was employed as a professIOnal forester The ProfessiOnal Foresters Act, 2000 reqUIred that all those employed as professIOnal foresters, whether m the publIc or the pnvate sector, be lIcensed by the Ontano ProfessIOnal Foresters ASSOCiatIOn. To be lIcensed, the gnevor had to be a member of that ASSOCiatIOn. He had sought and been demed reImbursement of the membershIp fees he paId to comply wIth the legIslatIOn. He gneved the demal. [28] In the course of her bnef award m that matter, the ChaIr noted that the Staff RelatIOns Officer representmg the employer had made three prelImmary obJectIOns, the thIrd of whIch was that "the gnevance alleges no vIOlatIOn of a specIfic provIsIOn of the CollectIve Agreement" She observed that UltImately It IS my concluslOn that the grievance must be chsmIssed and thus whether or not thIS thIrd obJectlOn IS properly characterized as a prelImmary Issue gIVen my concluslOn m thIS regard there IS no need to address It on a prelImmary basIs or to address the two other prelImmary Issues raIsed. After reJectmg an argument that the statutory membershIp reqUIrement gave nse to an oblIgatIOn to reImburse, the ChaIr made these observatIOns we are dealmg wIth a sItuatlOn where the Employer has chscretlOn whether or not to reImburse In hIs reply submIsslOns Mr Barclay referred to Mmu;try of TrammortatlOn and OPSEU (KUyntles) 51'3/84 (Verity) m support of the proposItIon that there was not a proper exerCIse of chscretlOn m thIS mstance and that the Mimstry rigIdly adhered to what they belIeved Management Board polley to be m denymg the request There IS no need to deal WIth the Employer S pOSItIon that thIS IS an argument that must be rejected on the basIs that It was raIsed for the first tIme m reply as It IS my VIew that thIS argument cannot succeed on ItS merits The background facts are reVIewed m the response to the grievance and Mr Anderson s basIc pOSItIon IS outlmed. I do not VIew the response as an mchcatlOn of a blmd adherence to a mIsapprehended polley as Mr Barclay has suggested m hIS submIsslOns Reference IS made to the Travel and General Expenses Gmdelmes and whIle reference IS also made to what the MmIstry does not do I VIew thIS as a reference to past practIce wIthm thIS Mimstry somethmg that WIll mevItably form the background for consIderatlOn of a matter WhIle as Mr Barclay emphaSIzed, the 12 mandatory obhgatIOn for a Forester m Mr Anderson S posItIon to be a member of the OPFA was a matter of relatIvely recent hIstory and thus thIs aspect of the matter dIfferentIates thIs sItuatlOn from the general practIce of not paymg such fees thIs was a matter that was wIthm the knowledge of the decIslOn maker Indeed, thIs matter was specIfically clarIfied by Mr Anderson S supervIsor at the meetmg and IS referenced m the decIslOn. The Issue IS whether a baSIS upon whIch the exerCIse of chscretlOn m thIs mstance can be Impugned has been estabhshed. It IS my concluslOn that such a baSIS has not been estabhshed and, accordmgly the grievance IS chsmIssed. [29] It IS noteworthy that the gnevance m Anderson was one to whIch the mediatIOn/arbItratIOn prOVISIOns of ArtIcle 22 16 clearly applIed, and that the ChaIr's bnef award does not mdIcate that the partIes had agreed under ArtIcle 22 16 7 that the outcome would have "precedentIal value" VIewmg the award m that context, I do not understand It to stand for anythmg more than that no baSIS for Impugmng management's conduct had been establIshed. In partIcular, I do not understand It to have deCIded that a test lIke that elaborated m KuyntJes applIes to the employer's decIsIOns about whether to reImburse membershIp fees The decIsIOn says only that the exerCIse of dIscretIOn m questIOn there would not fail that test [30] The gnevance m Kuyntjes concerned a demal of special and compaSSIOnate leave under a prOVISIOn of the collectIve agreement (found now m ArtIcle 75 of the current collectIve agreement) that saId "A Deputy MmIster or hIS deSIgnee may grant an employee leave of-absence wIth pay for not more than three (3) days m a year on special or compaSSIOnate grounds" The word "may" was understood to gIve the Deputy MmIster a dIscretIOn. The Board found that where the partIes' collectIve agreement expressly confers a dIscretIOn on management, the partIes should not be taken to have conferred an entIrely unfettered dIscretIOn. Rather, they should be taken to have mtended that the dIscretIOn would be exerCIsed In good faIth and wIthout dIscnmmatIOn, that there would be a genume exerCIse of dIscretIOnary power, as opposed to ngId polIcy adherence, that consIderatIOn would be gIven to the ments of the mdIvIdual applIcatIOn and that all relevant facts would be consIdered and Irrelevant consIderatIOns reJected m commg to a decIsIOn. [31] The essentIal dIstmctIOn between the dIscretIOn about whIch that was Said m Kuyntjes and the dIscretIOn ImplIcIt m the polIcy statement m Issue here IS that the dIscretIOn here IS not one conferred by a prOVISIOn of the collectIve agreement. It IS a dIscretIOn conferred by one level of management on another, concermng a matter on 13 whIch the collectIve agreement IS entIrely sIlent LIkewIse, the award from whIch an applIcatIOn for JudIcial reVIew was demed m Re Brampton Hydro Electnc CommissiOn and C.A. W Canada et aI, supra, was one whIch found that a dIscretIOn expressly conferred by the language of the collectIve agreement - a "sole dIscretIOn" to dIscharge an employee durmg the probatIOnary perIOd - was one that could not be exercIsed arbItrarIly or m bad faIth. [32] The decIsIOn m Re The Queen 1ll nght of Ontano and Ontano Public Service Employees' Ulllon et al (1984), 450 R (2d) 361 (Ont DIV Ct) dIsmIssed an applIcatIOn for JudIcial reVIew of a decIsIOn of the Board on a grIevance by an employee of the then Department of HIghways Howes, 356/82 (VerIty) The grIevance was that the employer had engaged m a serIes of redesIgnatIOns of the grIevor's "headquarters" m such a way as to CIrcumvent the travel expense prOVISIOns of the collectIve agreement. As the court's decIsIOn notes (at p 364h), ArtIcle 22 1 provIded a set of mIleage rates - cents per mIle to be paid to an employee reqUIred to use hIS own automobIle - but was sIlent about the places from whIch and to whIch those rates were to be paId. It seems to have been understood, however, that the rates were to be paid for travel between the employee's "desIgnated headquarters" and hIS actual work sIte Although the concept of desIgnated headquarters was thus crItIcal to the applIcatIOn of that prOVISIOn of the collectIve agreement, the agreement saId nothmg about how headquarters were to be desIgnated for someone wIth no regular place of work. An earlIer GSB decIsIOn, Willianlson et aI, 187/81 etc. (Barton), had held that m those CIrcumstances a mmIstry could desIgnate headquarters and pay mIleage from the desIgnated headquarters to the Job sIte, and that It had the rIght to desIgnate the grIevor's home as hIS headquarters [33] The Board's decIsIOn m Howes noted that although the collectIve agreement contamed no defimtIOn of "headquarters", the term was used m several prOVISIOns of the collectIve agreement to define varIOUS entItlements, mcludmg aspects of Job securIty The employer's own manual on travel expenses provIded that "The locatIOn of an employee's headquarters shall be perIodIcally revIewed to determme whether the orIgmal arrangement contmues to be eqUItable to both the employee and the MmIstry" The Board concluded that whIle the employer had the rIght to desIgnate the grIevor's headquarters, as the Board had said earlIer m Willianlson, the desIgnatIOn had to be eqUItable to both the employee and the mmIstry It concluded that the employer's 14 redesIgnatIOns of the grIevor's headquarters had been not eqUItable to the grIevor, and ordered a remedy [34] On JudIcial revIew, the court observed (at p 366) that the board undoubtedly had JunschctIOn to enter upon the mqmry It found art. 22.1 devOId of meanIng WIthout extenor reference and It referred to the very document put forward by management m the course of Its apphcatIOn of art. 22.1 There was certamly InItIal JunschctlOn and we find nothmg patently unreasonable m the mterpretatlOn gIVen by the board to the agreement and ItS apphcatlOn. Accordmgly the apphcatlOn before us WIll be chsmIssed WIth costs In the case at bar exercIsmg Its nghts to manage management promulgated the manual we have CIted and m so domg mchcated that these nghts would be exercIsed m a certam way eqmtable to both SIdes In the hght of that language there IS agam no necessIty to Imply a term of faIrness and non chscnmmatlOn that obhgatlOn has been assumed by management m the very mstrument It used m carrymg out ItS duty to manage [35] In the case before me there IS no term or prOVISIOn of the collectIve agreement that IS saId to be deVOId of meamng WIthout exterIor reference, and there IS no management document m whIch the employer has expressly stated that It would take the mterests of employees mto account m makmg a determmatIOn that IS CrItIcal to the applIcatIOn of a prOVISIOn of the collectIve agreement [36] The grIevor m Rupert, 374/84 (Gorsky, October 8, 1985) had been dIscharged for mnocent absenteeIsm. The true cause of the absenteeIsm, alcoholIsm, had not been recogmzed by the grIevor or the employer at the tIme of the dIscharge, although some members of management had suspected It Post dIscharge eVIdence establIshed alcoholIsm as the cause and showed that, as a result of the grIevor's havmg undergone treatment, there was a more favourable prognosIs for future attendance than mIght have been apparent at the tIme of dIscharge On that baSIS, the grIevor was remstated. The umon argued that the remstatement should be WIth compensatIOn from the date of dIscharge because the employer had faIled to follow ItS "Government Program on Alcohol and Drug Abuse by Employees", whIch the award described as "part of [the employer's] PolIcy Statement m the CondItIons of Employment, as found m the OntarIo Manual of AdmmIstratIOn." The Board found that management had failed to follow that polIcy because, havmg suspected alcohol abuse, It had not offered the grIevor a referral for assessment and treatment and, accordmg to the polIcy, an employee who cooperated WIth such a referral would be gIven "a reasonable opportumty to Improve theIr Job 15 performance" (p 19 of the decIsIOn) The Board also found, however, that the gnevor would not have accepted the referral. [37] Havmg referred to the DIvIsIOnal Court decIsIOn m Howes, supra, the Board m Rupert observed that In another case the Gnevor mIght have been entItled payment from the date of hIS dIscharge for lost wages and benefits because of the faIlure of the representatIves of the Mimstry to adhere to the government program on alcohol abuse by employees Havmg set It mto place and made It part of the conchtlOns of employment mcluded m the Ontano Manual of AdmmIstratlOn, an obhgatlOn [had] been assumed by management m the very mstrument used m carrymg out ItS duty to manage See OPSEU case supra at p '366 Where however as m thIS case the eVIdence IS all on the SIde of the Gnevor contmumg to deny the reahty of hIS alcohol problem, I do not feel that It warrants the order for payment of salary and benefits from the date of dIscharge as requested on behalf of the Gnevor even If such an award were open to me Central to thIS obiter dicta IS a conclUSIOn that the court's charactenzatIOn of the polIcy m Howes was also applIcable to the polIcy concermng alcohol abuse [38] I do not take the obiter dicta m Rupert, the deCISIOn m Howes or the court's deCISIOn on JudICial reVIew of the latter deCISIOn as holdmg that every "polIcy" of the employer IS an undertakmg to employees that creates entItlements enforceable at arbItratIOn. That surely depends on the language of the polIcy m questIOn and the context m whIch enforcement IS sought [39] The Rupert case was not one m whIch the umon alleged that the employer's faIlure to abIde by ItS polIcy amounted to a breach of the collectIve agreement There the alleged breach was dIscharge WIthout Just cause, and the dIscussIOn about the polIcy related to an assessment of the damages that flowed from that breach. The Issues there mIght today be analysed m terms of handIcap and accommodatIOn, WIth the employer polIcy perhaps servmg as eVIdence relevant to the Issue whether accommodatIOn would have mvolved undue hardshIp [40] The Howes case mvolved a management determmatIOn of a matter whIch dIrectly affected entItlements under the collectIve agreement, a context m whIch an oblIgatIOn to act reasonably could have been ImplIed on the baSIS subsequently accepted by the Ontano Court of Appeal m Re CounCil of Pnntlllg Industnes of Canada and Toronto Pnntlllg Pressl11en & ASSistants' Ulllon No 10 (1983), 42 0 R. (2d) 404 (leave 16 to appeal to S C C refused 52 N R. 308n), had the Board not concluded that the employer had gIven an express undertakmg on the subJect [41] I do not propose to reVIew m any detaIl the evolutIOn smce Re Council of Pnntlllg Industnes of Canada, supra, of the arbItral JUrIsprudence concermng the CIrcumstances m whIch an arbItrator may properly Imply an oblIgatIOn to exerCIse a rIght reserved to managerIal dIscretIOn m a reasonable It IS sufficIent to note the Board's recent observatIOn m Ashley et a1., 2001 1700 etc (Abramsky) at p 14 that under BOWoiquet, [541190 (Gorsky)] the JunschctlOn of the Board to reVIew the employer s exerCIse of a nght reserved to management IS denvatIve - It depends on the eXIstence of a prOVISIOn m the collectIve agreement whIch mIght be adversely affected by management s actIon. [42] The umon argues that the Board has JUrISdIctIOn to reVIew the exerCIse of dIscretIOn complamed about here because If the employer had exercIsed ItS dIscretIOn dIfferently - by reImbursmg the dues of some employees - that could have been characterIzed as mterference WIth the compensatIOn prOVISIOns of the collectIve agreement. [43] For purposes of analysIs I WIll accept that If the employer were to reImburse some employees' membershIps dues for the avowed purpose of Improvmg theIr compensatIOn, or If one could mfer from the CIrcumstances that that was the predommant purpose (as where, for example, It was eVIdent that the reImbursement gave the employer no benefit other than the gratItude of the reCIpIents), the reImbursement could constItute a breach of the prOVISIOns that the partIes have negotIated WIth respect to the allocatIOn of compensatIOn among bargammg umt employees On that VIew, If the umon were to grIeve that the employer should not have reImbursed dues because ItS domg so was mconsIstent WIth the compensatIon prOVISIOns of the agreement, the Board mIght then have to enqUIre mto the reasons for the reImbursement. [44] It does not follow that the Board has JUrISdIctIOn on that basIs to reVIew these deCISIOns not to reImburse dues, partIcularly dues of a sort that have never before been reImbursed Such a deCISIOn cannot be characterIzed as mconsIstent WIth compensatIOn prOVIsIOns whIch make no prOVISIOn for reImbursement That IS not to say that a deCISIOn not to reImburse could never be the subJect of a grIevance It could If, for 17 example, If It was alleged that the decIsIOn amounted to dIscnmmatIOn on a basIs prohibIted by ArtIcle 3 of the collectIve agreement or by the OntarIO Human Rights Code That IS not alleged here The actual exerCIse of reserved managenal nghts complamed of m these gnevances does not mterfere wIth the compensatIOn prOVISIOn of the agreement [45] In short, there IS no proVISIOn of the collectIve agreement that the employer IS alleged to have breached by refusmg to reImburse the gnevors' professIOnal dues, and no prOVISIOn of the collectIve agreement capable of bemg adversely Impacted by that exerCIse of management's dIscretIOn. Accordmgly, I agree wIth the employer that ItS decISIOn not to reImburse the gnevors' dues m professIOnal accounts' orgamzatIOns IS not subJect to reVIew by thIS Board for reasonableness Analysis Whether denying reimbursement was unreasonable [46] Havmg come to the conclusIOn that these gnevances do not raise an arbItrable Issue, It IS not stnctly necessary to decIde the questIOn whether the mmIstry acted unreasonably m denymg reImbursement of the gnevors' membershIp dues Smce consIderable hearmg tIme was devoted to that questIOn, however, It may be helpful to reVIew It and explam my conclusIOn that the umon has entIrely faIled to prove that the decIsIOn was unreasonable [47] Generally speakmg, the umon's eVIdence of and argument about benefit to the mmIstry was of two sorts There was eVIdence and argument that the membershIps are or would be of benefit to the mmIstry, and there was eVIdence and argument that the reImbursement Itself would be of benefit [48] As eVIdence of the latter sort, for example, the umon mtroduced mto eVIdence the mmIstry's March 1, 2002 "Human Resources Plan 2002 2004" That plan IdentIfied Canada Customs and Revenue Agency ("CCRA") as a competItor of the mmIstry's for qualIfied audIt staff. It noted that "CCRA's compensatIOn/benefits packages are seen to be sIgmficantly more attractIve" and that the "opportumtIes for partnershIps wIth the OPS, whIch may assIst the mmIstry m developmg the workforce capacIty to delIver ItS core busmesses and support corporate mItIatIves both now and m the future" mcluded 18 "RevIew benefits polIcIes/gUIdelmes (e g payment of professIOnal dues) m order to remain competItIve" [49] It was put to Mr MItska m cross exammatIOn that reImbursmg membershIp fees would make employment as a Tax AudItor wIth the mmIstry more attractIve and help solve recrUItment problems He acknowledged that reImbursement would make the employment more attractIve, notmg that paymg more salary would have a sImIlar effect He demed that the mmIstry has a partIcular problem competmg wIth CCRA for recrUIts, notmg that the mmIstry has hIred people employed at CCRA Just as CCRA has hIred people employed by the mmIstry He also noted that any benefit denved from reImbursmg dues would have to be weIghed agamst the cost. Asked If that weIghmg had been done by the mmIstry, he saId that that would have been done at a hIgher level than hIS, and that he assumed that It had. In that connectIOn, he observed that there had been a consIderable mcrease m salanes for Tax AudItors [50] There are two dIfficultIes wIth the eVIdence and argument that the mmIstry's decIsIOn under the polIcy was unreasonable because the reImbursement Itself would be of benefit to It The first IS that whIle addmg membershIp reImbursement to the benefits of Tax AudItor posItIOns would no doubt make the posItIOns more attractIve, there IS no eVIdence before me from whIch one could assess the economIC value of the mcreased attractIveness of the posItIOns, so as to enable a companson wIth the costs of reImbursement The other and even more fundamental problem IS that the polIcy whIch forms the foundatIOn of the umon's case does not gIve the mmIstry a dIscretIOn to reImburse membershIp dues If the rell11bursel11ent would be of benefit to the mmIstry, but only If the l11el11bership would be of benefi t to the mmIstry [51] Turnmg, then, to the eVIdence and argument that the membershIps are or would be of benefit to the mmIstry, I begm by observmg that proof that the gnevors' membershIps do or would provIde the mmIstry wIth some benefit, however slIght, would not be enough to establIsh that a decIsIOn not to reImburse membershIp dues IS unreasonable No reasonable person would pay more for a benefit than the benefit was worth to them. A decIsIOn not to pay for somethmg that would not provIde a benefit worth at least the amount paId would not be an unreasonable decIsIOn. The umon would have to demonstrate that the obJectIve value of the benefit to the mmIstry of 19 contmued membershIp was at least as great as the cost of reImbursmg the membershIp dues before one could possibly conclude that a decIsIOn not to reImburse the dues was unreasonable The umon's eVIdence faIled m that regard. [52] EVIdence led m the attempt to show that the membershIps are or would be of benefit was of two sorts One sort was eVIdence purportmg to show that mamtammg tax audItors' membershIps m professIOnal accountants' orgamzatIOns was of actual benefit to the mmIstry The other sort was eVIdence that the umon says shows that the employer has behaved as though mamtammg membershIp was of benefit to It The umon's attempts to prove these pomts relIed m part on matters of hIstory, so It WIll be useful to set out the hIstoncal background. Background History - DesIgnatIons and MembershIps [53] The 1985 report of the ProvmcIaI AudItor studIed the operatIOns of the mmIstry's RetaIl Sales Tax Branch. It concluded that "[t]he skIlls and classIficatIOns [SIc] of audItors had not kept pace" WIth the demands of theIr tasks, notmg that m 1983 a pOSItIOn paper prepared by the Branch had advocated upgradmg the classIficatIOn of audItors and recrUItmg "more qualIfied/tramed" audItors [54] A copy of a POSItIOn SpecIficatIOn for a Semor FIeld AudItor pOSItIOn m the RetaIl Sales Tax Branch shows that m late 1986 the pOSItIOn was reclassIfied from Tax Officer 3 to FmancIaI Office 4 (AtypIcal), and that the "SkIlls and Knowledge" reqUIrements of the pOSItIOn mcluded "an accountmg deSIgnatIOn and bemg a current accredIted member such as C G.A, C M.A or C.A" There IS no eVIdence that there was ever a sImIlar reqUIrement for CorporatIOns Tax AudItors Indeed, the eVIdence of Martm MIksza, now RegIOnal Manager of the mmIstry's HamIlton office, IS that he dId not have a deSIgnatIOn when he was hIred as a CorporatIOns Tax AudItor at the F04 level m 1985, and he dId not attam a deSIgnatIOn untIl after he was promoted to an F05 Semor CorporatIOns Tax audItor pOSItIOn m 1990 [55] The 1989 report of the ProvmcIaI AudItor agam studIed the operatIOns of the RetaIl Sales Tax Branch. It noted that more "qualIfied audItors" had been recrUIted, that audItor performance had Improved "due to better trammg of audItors, closer supervIsIOn of audIts, and Improved AudItor's Handbook and the mtroductIOn of laptop 20 computers" and that "better tramed and managed audItors had brought m much greater dIrect revenue than the added collectIOn costs" [56] The long lIst of "QualIficatIOns" m a November 9, 1990 postmg for Semor FIeld AudItor posItIOns m the RetaIl Sales Tax Branch mcluded "possessIOn of an accountmg desIgnatIOn and current accredIted membershIp m C G.A, C.M.A or C.A" That IS the most recent eVIdence of a "bemg a current accredIted member" reqUIrement for Retail Sales Tax AudItors The reqUIrement was dropped thereafter Accordmg to wItnesses, m 1990 and 1991 at least two tax audItors, mcludmg one of the gnevors, asked whether It was necessary to mamtam membershIp m the orgamzatIOn from whIch they had receIved theIr desIgnatIOns and were told It was not The lIst of the "QualIficatIOns" m postmgs for Semor FIeld AudItor posItIOns m the RetaIl Sales Tax Branch on August 4, 1994, August 15, 1996 and February 3 and March 2, 1998 mcluded "possessIOn of C G.A, C.M.A or C.A accountmg desIgnatIOn", but the former "current membershIp" reqUIrement dId not appear m any of them. [57] Ellen Ecker has been coordmator for labour relatIOns for the mmIstry smce 1999 From Apnl 1990 to the tIme of her promotIOn m 1999 she was an HR Consultant for the mmIstry at ItS Oshawa head office She testIfied that the educatIOn acqUIred m attammg a desIgnatIOn IS of value to the mmIstry, but that contmumg membershIp thereafter m the orgamzatIOn that awarded the desIgnatIOn IS not In her perIOd of employment, mamtenance of membershIp had not been a reqUIrement for tax audItors as far as she was aware, and "possessIOn of a desIgnatIOn" had always meant havmg attamed a desIgnatIOn at some tIme m the past. [58] In the late 1990's, concerns about credentIalIsm led the mmIstry to clanfy that havmg completed of courses offered by a professIOnal accountancy orgamzatIOn (for TA2 posItIOns) or attamed a professIOnal desIgnatIOn (for TA4 and T5 posItIOns) where not the only ways that applIcants for tax audItor posItIOns could demonstrate that they had the reqUIred level of educatIOn. A January 1, 1999 posItIOn descnptIOn for the FIeld AudItor posItIOn Tax AudItor 4 (CorporatIOns Tax), describes ItS Staffing and LIcensmg ReqUIrements as CGA or C1Li\ or CA desIgnatlOn or successful completlOn of a recogmzed umversIty degree plus or mcludmg courses m Introductory Fmancwl Accountmg Intermechate Fmancwl Accountmg Advanced Fmancwl Accountmg. Auchtmg TaxatlOn, eIther 21 Cost Accountmg or Management Accountmg and one adchtlOnal course m Auchtmg TaxatlOn, Cost Accountmg Management Accountmg or Fmance [59] Work done later m 1999 further clanfied the accredItatIOn reqUIrements for Tax AudItors at each level of the Tax AudItor senes, wIth emphaSIS on academIc eqUIvalenCIes between the courses and desIgnatIOns offered by professIOnal accountants' orgamzatIOns and courses and programs avaIlable at umversItIes and, In some cases, commumty colleges A document provIded to managers m September 1999 to explam the new accredItatIOn gUIdelmes mcluded thIS explanatIOn of "recogmzed professIOnal accountmg desIgnatIOn", whIch underscored that "havmg" a desIgnatIOn meant havmg attamed a level of educatIOn Recogmzed ProfesslOnal Accountmg DesIgnatlOn IS defined as havmg met aU academIc and work experience reqUIrements WIth respect to degrees exammatlOns and experience reqUIrements prescribed by the Canachan InstItute of Chartered Accountants (CICA) the CertIfied General Accountants ASSOCIatlOn (CGA) or the SOCIety of Management Accountants (CMA) [formerly SOCIety of RegIstered Industrial Accountants] and havmg had the desIgnatlOn conferred. AlternatIvely that the candIdate has submItted written proof that theIr academIC and experience qualIficatlOns have been recogmzed as bemg eqUIvalent to a professlOnal accountmg deSIgnatIOn by one of the above named professlOnal accountmg aSSOCIatlOns [60] Mr MIksza testIfied that when the eqUIvalencIes developed m 1999 were revIewed WIth and dIscussed among managers, It was saId that some people were not sure whether they had to mamtam deSIgnatIOns - eIther as a condItIon of employment or for purposes of any future Job competItIOn. Managers were mstructed to make It clear that mamtenance of membershIp was not a condItIon of employment or promotIOn. He saId he covered thIS pomt m hIS meetmgs WIth the employees he then supervIsed, and also m Job competItIOns m whIch he had served as a panel member He acknowledged m cross exammatIOn that at some pomt after he had moved to the HamIlton office he learned that gnevor Tanya Terryberry was confused about whether mamtenance of membershIp was reqUIred for advancement. He saId he had taken steps to correct that mIsunderstandmg as soon as he learned of It [61] It was put to Ms Ecker m cross exammatIOn that a postmg m early 2003 for a Semor FIeld AudItor (TA5) pOSItIOn had used the words "successful completIOn of a CA, CGA or CMA deSIgnatIOn" m the QualIficatIOns sectIOn. Ms Ecker was unaware of any deCISIOn to use that termmology Asked by umon counsel why that termmology had not been used, she saId she had thought It self-eVIdent that the language that had been m 22 use had the same meamng as the language proposed by counsel. She also stated that untIl the suggestIOn had been made m these proceedmgs, she had never been led to belIeve that employees were under any mIsapprehensIOn that they must as a condItIon of employment keep theIr membershIp current [62] Ms Ecker noted that m early 1998, the ProfessIOnal InstItute of the PublIc ServIce negotIated a collectIve agreement prOVISIOn WIth the federal Treasury Board concermng reImbursement of membershIp dues for certam tax audItors at Revenue Canada, later CCRA Shortly thereafter, m May 1998, eIght grIevances were filed by OPSEU members concermng reImbursement by the mmIstry of theIr professIOnal dues The Issue of reImbursement was raIsed at the MmIstry Employment RelatIOns CommIttee ("MERC") m June 1998, and remamed on the MERC agenda untIl some tIme m 2001 Ms Ecker testIfied wIthout contradIctIOn that the questIOn whether mamtenance of membershIp was a Job reqUIrement dId not come up m the dIscussIOn of thIS Issue m the MERC [63] Some or all of the eIght 1998 grIevances were referred to arbItratIOn. By June 2000, the mmIstry had undertaken a reVIew of the reImbursement Issue, and those grIevances were then adJourned Sllle die. The grIevances were revIved m 2001 and scheduled for arbItratIOn, and the Issue was dropped from the MERC agenda. The only one of those grIevances to be pursued to hearmg was Huff, 0518/98 The decIsIOn m Huffwas released February 6, 2002, some 4 months before the filmg of the earlIest of the grIevances before me That decIsIOn stated 1 ThIs grievance mvolves a claIm that the MmIstry IS responsIble for the payment of the GrIevor s professlOnal dues to the SocIety of Management Accountants of Ontario The Employer submItted that It was not obhged to do so by the collectIve agreement nor was thIS SItuatIon covered by ItS pohcy regardmg payment of such dues The UnIon chd not chsagree WIth those submIsslOns Accordmgly the grievance IS chsmIssed for the followmg reasons 2. The GrIevor was a SenIor FIeld AudItor WIth the RetaIl Sales Tax Branch of the MinIstry of Fmance He was also a CertIfied Management Accountant (Hereafter CMA) '3 The Employer reqUIres that apphcants to the GrIevor s pOSItIon hold a C1Li\ credentIal. It does so as a convenIence m order to permIt It to assess the skIlls and qualIficatlOns of apphcants for the pOSItIon. However the Employer does not reqUIre successful apphcants to mamtam membershIp m the SOCIety nor does It reqUIre that a successful apphcant mamtam her or hIS status as a CMA. 4. The Employer s 'Travel Management and General Expenses pohcy mcludes the followmg 23 OTHER EMPLOYEE EXPENSES MembershIp Fees Payment of membershIp fees may be authorized when membershIp m an orgamzatlOn IS beneficIal to the mmIstry or when reqUIred, under the prOVISlOns of collectIve agreements MembershIps are NOT consIdered a taxable benefit to employees when the mmIstry IS the primary benefiCIary of the membershIp ThIs would be the case when the employee s professlOnal membershIp IS necessary for the effectIve performance of hIs/her dutIes 5 Payment of C1Li\ professlOnal dues IS not an entItlement under the collectIve agreement. There IS also no legIslatIve reqUIrement that persons m the grIevor s pOSItIon mamtam theIr certIficatlOn. The Employer SaId that the payment of such dues IS covered only by the pohcy set out above whIch on ItS face leaves payment of membershIp fees to the Employer s chscretlOn. 6 There IS no eVIdence that thIS case IS an arbItrary or chscrImmatory apphcatlOn of the Employer s pohcy 7 The Umon IS m agreement WIth the foregomg submIsslOns of the Employer 8 As there eXIsts no dIspute between the partIes to the collectIve agreement bemg the Umon and the Employer the Board has no JUrISChctlOn over thIS matter Accordmgly the grievance IS hereby chsmIssed. At the opemng of hearmgs m thIS matter there was a dIspute between the partIes about whether for the purposes of these grIevances the umon was bound, as the employer alleged, by the factual conceSSIOns It had made m the Huffmatter The employer chose not to pursue that argument Puzported eVldence oEMimstry beheEthat memberslnp beneficIal [64] The fact that RetaIl Sales Tax audItors were reqUIred to mamtam membershIp from the mId 1980's untIl 1990 was Said to demonstrate the mmIstry's belIef that membershIp was of value to It WhIle the mInIstry's havmg reqUIred current membershIp for some audItors m that perIOd bespeaks past belIef that It was of value, he mmIstry's havmg abandoned that reqUIrement m 1990 IS lIkeWIse eVIdence of the OppOSIte belIef. There IS no reason to accord the earlIer belIef more sIgmficance than the latter Indeed, abandonment of the reqUIrement after havmg Imposed It for a tIme suggests that the deCISIOn to do so was an mformed one [65] The umon also argued that the employer had eIther fostered or at least deliberately faIled to correct employees' mIstaken belIefs that mamtenance of membershIp was a Job reqUIrement or prOVIded some advantage (beyond havmg attamed a deSIgnatIOn) m advancmg to hIgher level pOSItIOns It was suggested that thIS had resulted m employees' havmg mamtammg membershIps, and that the 24 employer's havmg taken advantage m thIS way and wIth thIS result demonstrated that the employer belIeves It benefits from mamtenance of membershIp [66] Agamst the hIstoncal background to whIch I have referred, and despIte the employer's havmg clearly stated otherwIse at the opemng of these proceedmgs, two of the gnevors testIfied not only that they had once belIeved but also that they stIll belIeved that mamtenance of membershIp IS a condItIon of theIr employment m TA4 posItIOns A thIrd gnevor testIfied that she had belIeved and stIll belIeves that mamtenance of membershIp IS reqUIred m order to advance from TA4 to TA5 and management level posItIOns The umon does not argue that these belIefs are correct. It does not rely on any alleged employer mIsrepresentatIOn as a basIs for recovery of dues paid by any allegedly mIstaken gnevor It offers thIS eVIdence solely m support of ItS theory that the employer fostered or took advantage of such mIstaken belIefs, and that thIS shows that It values the employees' membershIps [67] Gnevors Peter Cherwonogrodzky and Terry Watson, both of the mmIstry's HamIlton office, each testIfied that he belIeved that the "CGA or CMA or CA desIgnatIOn" reqUIrement of hIS FIeld AudItor posItIOn reqUIred that he mamtam membershIp m the professIOnal orgamzatIOn m whIch he had ongmally attamed a professIOnal desIgnatIOn. They both claimed to base theIr belIefs on the statutory prOVISIOns that prohibIt them from usmg the mItIals "CA", "CMA" or "CGA" after theIr names unless they are current members of the orgamzatIOns m whIch they attamed theIr desIgnatIOns They each argued, m effect, "How can you say you are m posseSSIOn of the desIgnatIOn unless you are a member m good standmg?" [68] In cross exammatIOn, Mr Watson was shown a letter apparently wntten by hIm to the Manager of the mmIstry's Personnel ServIce Branch m December 1990 The pertment portIOns of the letter are as follows I have an accountmg desIgnatlOn. I have annually paId the dues charged by the aSSOCIatIOn I am consIdermg no longer paymg these dues The aSSOCIatIOn WIll declare me no longer a member for the sole reason that I do not pay my dues to support ItS variOUS programmes 1 - For contmumg m my current F04 posItIon or when applymg for an F05 or any management posItIon WIth the Mimstry of Revenue m the future WIll the attamment of an accountmg desIgnatIOn stIll be a reqUIrement. If so please state the nature of the pOSItIons whIch WIll stIll need thIS 25 2 - If an accountmg desIgnatlOn IS needed for some posItIons WIll the presentatlOn of the certIficate be satIsfactory proof for the "must have an accountmg desIgnatlOn" conchtlOn of that posItIon - even though I would not be a current paymg member? ObVIOusly surpnsed that hIS letter had been kept on file for so long, Mr Watson acknowledged havmg sent It He also acknowledged havmg receIved a reply from the then Manager of the mmIstry's Personnel ServIce Branch, the pertment portIOn of whIch read As you already possess an accountmg desIgnatlOn your questlOns regarchng apphcatlOn to F 0 5 and Management pOSItIons m the Mimstry of Revenue whIch reqUIre a desIgnatlOn should not be a concern. Where a deSIgnatIOn IS reqUIred, the presentatlOn of the certIficate receIVed, by you from the Accountmg ASsocwtlOn would be suffiCIent proof, and current membershIp m the ASsocwtlOn would not be a necessIty [69] Mr Watson testIfied that he dId not belIeve the manager's response now or at the tIme He felt It "dIdn't stand up to the Job descnptIOn." He stated that he preferred to belIeve hIS mterpretatIOn of the Job descnptIOn rather than the letter [70] Tonya Terryberry testIfied that she belIeves that "havmg a deSIgnatIOn" IS necessary to advance to hIgher level pOSItIOns and that "If I stop paymg dues that IS a barner, I cannot advance m the mmIstry" It IS not entIrely clear whether she also felt that she had to mamtam membershIp m order to retam her pOSItIOn. She noted partIcularly that when she attamed her deSIgnatIOn, the deSIgnatIOn mItIals were put after her name on her busmess card at her request She acknowledged m cross exammatIOn that no one m management had told her that she had to put her deSIgnatIOn mItIals on her card, nor had anyone m management told her that she had to mamtam membershIp m order eIther to advance or to remam m her pOSItIOn. [71] Durmg the subsequent cross exammatIOn of Mr MItska, umon counsel put It to hIm that Ms Terryberry had not been told untIl January of 2003 that she dId not need to mamtam membershIp (an assertIOn that, I note, was not part of her own testImony) HIS uncontradIcted response was that he had not been aware that Ms Terryberry was confused untIl she brought It up, and that when she dId brmg It up he clanfied the matter [72] If Mr Watson and Mr Cherwonogrodzky truly belIeve that they must mamtam membershIp as a condItIon of theIr employment despIte havmg been told otherwIse by the employer, If these are not merely arguments m the gUIse of statements of belIef, 26 then they are mIstaken despIte the employer's conduct, rather than because of It TheIr mIstakes anse from theIr mIsgUIdedly preferrmg theIr own mterpretatIOns of what the employer wrote m theIr Job descnptIOn to the employer's specIfic and authontatIve statements about what It m fact reqUIres or does not reqUIre [73] LIkewIse, If Ms Terryberry persIsted m her belIefs after Mr MItska told her otherwIse and after hearmg the employer clearly state ItS posItIOn m these hearmgs, her confusIOn cannot be attributed to the employer's conduct [74] The eVIdence of three gnevors who refuse to belIeve what they are told by the employer about ItS reqUIrements cannot be the basIs of any findmg that reasonable employees would have been confused about whether they were reqUIred to mamtam membershIp, eIther to keep theIr posItIOns or to achIeve promotIOn. [75] The employer was clear m Huff that mamtenance of membershIp was not a Job reqUIrement There IS no eVIdence that that came as a surpnse to the umon at that tIme, nor that the umon was prevIOusly confused about thIS Nor IS there any eVIdence that the umon raIsed any concern about employee confusIOn, eIther when the questIOn of reImbursement was bemg dIscussed m the MERC or when the eIght reImbursement gnevances were dIscussed followmg theIr filmg m 1998 When employees asked whether It was necessary to mamtam membershIp, as Mr Watson dId m December 1990, they were told It was not WhIle I accept that there may have been some confusIOn among employees whose belIefs were susceptible of correctIOn, all the eVIdence IS that when It became aware of any such confusIOn the employer took proper steps to correct It. [76] I find the umon's assertIOn that the employer eIther fostered or deliberately reframed from correctmg mIstaken belIefs about the need to mamtam these membershIps to be totally wIthout foundatIOn. [77] There was also eVIdence that employees have been sent congratulatory letters when they attamed theIr professIOnal desIgnatIOns It seemed thIS was offered as eVIdence that the mmIstry belIeved membershIp to be of benefit ThIs IS IllustratIve of a general problem wIth the umon's case a faIlure to dIstmgUIsh between the value of acqUIrmg a desIgnatIOn and the value of mamtammg membershIp A congratulatory 27 letter on the occaSIOn of the employee's attammg a desIgnatIOn can hardly be eVIdence of the author's perceptIOn of the value of the employee's mamtammg membershIp thereafter [78] As I have already noted, the MmIstry of Revenue does not reImburse the membershIp dues m professIOnal accountants' orgamzatIOns for any of ItS bargammg umt or managenal employees The umon sought dIsclosure of any CIrcumstances m whIch other MmIstnes had reImbursed such dues for any employee One non managenal posItIOn was IdentIfied, a posItIOn m the AMAPSEO bargammg umt at the MmIstry of MumcIpal Affairs and Housmg The mcumbent's membershIp dues m a professIOnal accountancy orgamzatIon had been reImbursed, even though such membershIp was not an express reqUIrement of the posItIOn descnptIOn. The statement of that posItIOn's purpose, as set out m the posItIOn descnptIOn, reads as follows To perform controller dutIes for the MmIstry s crown agencIes and corporatlOns mcludmg Ontario Housmg CorporatIOn (OHO) Ontario Mortgage CorporatlOn (OMO) and North PIckermg CorporatlOn momtor theIr finanCIal records develop finanCIal management strategIes To partIcIpate In IFIS projects mcludmg ImplementatlOn of new functlOns upgrades and system enhancements To provIde IFIS analYSIS advIce and support. The full pOSItIOn descnptIOn was shown to Mr MItska, who was asked whether It appeared to be sImIlar to Tax AudItor pOSItIOns m the MmIstry of Revenue He testIfied that It dId not No other eVIdence was mtroduced WIth respect to the pOSItIOn. [79] Umon counsel argued that the employer must have thought that the mcumbent's membershIp m the profeSSIOnal accountants' orgamzatIOn was a benefit to It Based on the fact that the work of thIS AMAPCEO pOSItIOn and the work of a Tax AudItor both mvolve lookmg at finanCial statements, counsel mVIted me to conclude that the employer's havmg reImbursed the mcumbent of that one pOSItIOn was eVIdence that mamtammg the membershIps of Tax AudItors would be of value to the employer [80] The eVIdence before me IS that the Job of the one AMAPCEO bargammg umt employee whose profeSSIOnal dues have been reImbursed IS not SImIlar to the gnevors' Jobs The fact that that mdIvIdual's dues were reImbursed IS of no aSSIstance m determmmg whether and to what extent the gnevors' membershIps afford the employer a benefit of such value that a deCISIOn not to reImburse theIr dues must be unreasonable 28 [81] WIth reference to busmess cards, the employer's "VIsual IdentIty DIrectIve" provIdes that "a professIOnal degree or desIgnatIOn may appear after the name of a mmIstry employee only when the degree or desIgnatIOn IS a reqUIrement of the posItIOn whIch the employee holds" Tax audItors are permItted, as Ms Terryberry was, to have theIr desIgnatIOn mItIals mcluded on theIr busmess cards after theIr name If they wIsh, even though mamtammg membershIp (and hence the abIlIty to use the mItIals m that way) IS not a reqUIrement of theIr posItIOns The aVailabIlIty of thIS optIOn and a supposed tensIOn between It and the VIsual IdentIty DIrectIve were offered as eVIdence that the mmIstry belIeved that mamtenance of membershIp provIded It WIth a benefit dIstmct from what denved from the employee's havmg once attamed a desIgnatIOn. There IS no ObVIOUS tensIOn there IS no eVIdence that thIS was permItted for any employee whose posItIOn dId not reqUIre past attamment of a desIgnatIOn. ThIs mIght have been a somewhat stronger argument for belIef m benefit If there had been eVIdence that the mmIstry had reqUIred, or even encouraged, that the desIgnatIOn mItIals be added to cards There was no such eVIdence Puzported EVldence of Actual Benefit [82] The value to the mmIstry of the educatIOn associated wIth attamment of a desIgnatIOn IS undoubted, and readIly acknowledged by the mmIstry Proof of havmg attamed a desIgnatIOn IS one way that applIcants for posItIOns at and above the TA4 level demonstrate that they have the reqUIsIte educatIOn. The mmIstry's posItIOn IS sImply that an employee's mamtammg membershIp after havmg acqUIred the educatIOn does not add value from ItS perspectIve The pertment questIOn IS not whether an employee's havmg attamed a desIgnatIOn IS of value to the mmIstry but, rather, whether and to what extent the employee's mamtammg membershIp thereafter IS of value to the mmIstry Generally speakmg, the umon's eVIdence of actual benefit faIled to adequately dIstmgUIsh between the value to the mmIstry of the employee's attammg the educatIOn and the value to the mmIstry of the employee's mamtammg membershIp thereafter [83] For example, the umon pomts to a "QuestIOns and Answers" document Issued by the mmIstry m 1998 to explam Phase Two of ItS Tax Integnty program, whIch promIsed the hIrmg of addItIonal audItors and others It suggests that the emphasIzed sentence 29 m the followmg passage supports Its posItIOn that contmumg membershIp has value to the mmIstry Q Your government promIsed to reduce the SIze of the CIVIl servIce Will these new posItIons result ill an mcrease to the eXIstmg number of CIVIl servants? A. These are adchtlOnal posItIons that WIll be recrUIted from both wIthm and outsIde the government. Surplus government employees may qualIfy for redeployment to these pOSItIons If they meet the necessary qualIficatlOns The more complex audlt,,, reqUire pro[eHHlonal deHlgnatlon" and all audlt,,, reqUire "'ome accountancv trammg It IS antIcIpated that extenSIVe external recrUItment WIll also be reqUIred. The sentence does not say that current membershIp IS reqUIred or desIrable The last part of the sentence makes It clear that the focus IS on the audItor's level of trammg There IS no reason to suppose that the mmIstry's reference m thIS document to a profeSSIOnal deSIgnatIOn reqUIrement meant somethmg dIfferent from what It had meant for recrUItmg and promotIOn purposes smce 1991 [84] The umon also relIed on the 1985 and 1989 reports of the ProvmcIaI AudItor, and partIcularly the 1989 findmgs quoted m paragraph [55] above, as eVIdence that mamtenance of membershIp had actual value to the mmIstry m the form of mcreased tax recovery Nothmg m eIther report speaks dIrectly to the benefits of mamtenance of membershIp The subsequent report IdentIfies the mcreased trammg of audItors as havmg lead to pOSItIve results [85] Several gnevors testIfied about the benefits they belIeved that the mmIstry had denved from theIr havmg mamtamed theIr profeSSIOnal membershIps They belIeved that theIr abIlIty to use the profeSSIOnal deSIgnatIOn mItIals to descnbe themselves orally and on busmess cards gave them added credibIlIty WIth taxpayers and theIr profeSSIOnal adVIsors They Said that thIS mcreased credibIlIty led to less reSIstance durmg the audIt process and fewer challenges afterwards, whIch m turn allowed them to accomplIsh more m theIr workmg hours than would otherWIse have been the case The gnevors' eVIdence m support of thIS belIef consIsted of generalIzatIOns about theIr expenences of mteractIOns WIth taxpayers eIther comparmg theIr mteractIOns WIth taxpayers before they had attamed a deSIgnatIOn to theIr mteractIOns WIth other taxpayers afterwards, or comparmg taxpayers' reactIOns to them before and after they IdentIfied themselves usmg the deSIgnatIOn mItIals 30 [86] There are a number of ObVIOUS dIfficultIes wIth translatmg thIS anecdotal, ImpressIOmstIc eVIdence of taxpayer reactIOn mto an obJectIve and quantItatIve measure of value to the mmIstry of contmumg membershIp The most cntIcal dIfficulty IS that there IS no way of knowmg how much these perceIved taxpayer responses were due to the sIgmficance to the taxpayer of the desIgnatIOn mItIals as a measure of the audItor's level of educatIOn, and how much they had to do wIth the sIgmficance to the taxpayer of the audItor's havmg remamed a current member of the orgamzatIOn after bemg granted the desIgnatIOn. [87] For the purpose at hand, the appropnate companson IS not one between the expenences of an audItor before and after she completes the CA, CGA or CMA courses and attams the desIgnatIOn. The appropnate companson would have been between the outcomes when an audItor (havmg mamtamed membershIp) describes herself as a "CA", "CGA" or "CMA," and the outcomes when an audItor describes herself as havmg completed the CA, CGA or CMA courses and been awarded the desIgnatIOn and adds that she has not mamtamed membershIp because her Job does not reqUIre that she do so There was no eVIdence before me that addresses that companson, as umon counsel acknowledged m argument WhIle one mIght Imagme that the use of the desIgnatIOn mItIals would take a bIt less tIme more efficIent and be more satIsfymg for the audItor than offermg the longer explanatIOn, there IS no way to know whether the one provIdes more credibIlIty than the other, nor how much any dIfference m credibIlIty makes to the outcomes [88] The umon also argued that mamtenance of membershIp contributed or would contribute to an Image of professIOnalIsm that would be reassurmg to the publIc, and that thIS publIc reassurance would be of benefit to the mmIstry Agam, there IS no eVIdence from whIch one could conclude that the publIc regards or would regard an audItor who had attamed a desIgnatIOn and thereafter complIed wIth mmIstry reqUIrements concermng contmumg educatIOn and conduct as any less professIOnal than an audItor who, m addItIon to the foregomg, had complIed wIth the reqUIrements of one of the professIOnal accountants' orgamzatIOns concermng contmumg educatIOn and conduct There IS sImply no eVIdence from whIch one could conclude that the orgamzatIOn's reqUIrements m those respects would add anythmg to the mmIstry's by 31 way of publIc reassurance, nor any eVIdence that would assIst m valumg any margmal mcrease m reassurance m order to weIgh It agamst the cost of reImbursement. [89] The umon argued that because the mmIstry best knows the reasons for ItS decIsIOn It bore an onus of explanatIOn that It dId not dIscharge If the mmIstry's decIsIOn were revIewable for reasonableness, the umon would bear the mItIal onus to adduce eVIdence sufficIent to support a findmg that the decIsIOn was unreasonable Only If It dId that would any onus shIft In my VIew, the umon's eVIdence would not have been sufficIent to shIft to the mmIstry any onus that the mmIstry's response dId not fully dIscharge [90] For the foregomg reasons, these gnevances are dIsmIssed Dated at Toronto thIS 14th day of Apnl, 2004 ~V VIce ChaIr