Loading...
HomeMy WebLinkAbout2006-2139.Leuser.08-04-07 Decision Commission de Crown Employees Grievance Settlement règlement des griefs Board des employés de la Couronne Suite 600 Bureau 600 180 Dundas St. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tél. : (416) 326-1388 Fax (416) 326-1396 Téléc. : (416) 326-1396 GSB# 2006-2139 UNION# 2006-0202-0002 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Leuser) Union - and - The Crown in Right of Ontario (Ministry of Finance) Employer BEFORE Janice Johnston Vice-Chair FOR THE UNION Mark Barclay Grievance Officer Ontario Public Service Employees Union FOR THE EMPLOYER Julie Legault-Hockley Labour Relations Consultant Ministry of Finance HEARING February 14, 2008 WRITTEN March 28, 2008. SUBMISSIONS 2 Decision At the hearing scheduled to deal with this matter, it was agreed that we would proceed pursuant to the expedited process set out in Article 22.16 of the collective agreement. It was agreed that I would issue brief reasons for my decision and that this decision shall have no precedential value. At the hearing scheduled to deal with this matter, the parties agreed to proceed by way of written submissions. I am in receipt of an Agreed Statement of Facts from the parties which provides as follows: Agreed Statement of Facts 1. The Grievor is employed as a Corporation Tax Auditor (Tax Auditor 4) with the Tax Compliance and Revenue Collections Branch, Tax Revenue Division, Ministry of Revenue. In or about 2005/2006, the Grievor added the Canadian Institute of Chartered Accountants (CICA) Comprehensive Income Tax Practice Course as a learning objective in his Performance Development Plan/Learning Plan (PDP/LP). 2. The PDP/LP ensures that all staff members in like positions across the Tax Revenue Division are evaluated on a consistent basis, using like measures and approach. The Learning Plan is a required component of the performance development plan that identifies individualized learning objectives, proposed methods and achieved results. 3. The approval for reimbursement of any course is triggered when a request is made by an employee under the Program Administrative Letter (PAL) regarding the Reimbursement for Educational Assistance. Attached as Appendix ?A? is a copy of the PAL for Reimbursement for Educational Assistance. 4. In accordance with the PAL for the Reimbursement for Educational Assistance, the discretion for approval of reimbursement of tuition for courses rests with the Director. Before a tuition reimbursement can be considered for approval by the Director, an Application for Tuition Reimbursement form must be completed and submitted by the employee. 3 5. The PAL regarding the Reimbursement for Educational Assistance outlines the Tax Revenue Division?s policy on reimbursement for educational courses. The PAL provides that all courses must be approved by the Director prior to enrolment and that the Director has the responsibility to ensure that the most efficient and effective method of training is carried out. In accordance with section (b) of the Reimbursement Criteria in the PAL, at the discretion of the Director, an amount up to 50% reimbursement of the course tuition fee may be approved if the course is not directly program-related but nonetheless enhances or develops the skill-set of the employee for another position in the Tax Revenue Division. Meals, accommodation, and travel would not be reimbursed under the PAL. The Parties agree that the above-noted section (b) applies to this matter. 6. On or about April 3, 2006, the Grievor submitted the Application for Tuition Reimbursement form, requesting tuition reimbursement for the CICA Comprehensive Income Tax Practice Course. The Grievor?s supervisor at the time recommended to the manager and the Director that reimbursement for the requested course be approved. 7. However, reimbursement for the course was not approved. Instead, it was suggested to the Grievor that he take, and be reimbursed for, an in-depth corporate tax course, a course that would enhance and develop the Grievor?s skill-set. The Grievor refused. 8. The Grievor grieves that ?management has denied my application to attend the CICA Income Tax Course which is included in my performance development and Learning Plan? and seeks to be ?permitted to attend the next offering of this course with all related costs (e.g. meals accommodation, travelling, tuition, etc.) to be fully reimbursed by the Employer?. Attached as Appendix ?B? is a copy of the Grievor?s grievance dated September 7, 2006. 9. It is the Grievor?s position that, after he added the course to his learning plan and after his supervisor recommended to the manager and Director that tuition for the course be reimbursed, the reimbursement ought to have been approved. The Grievor argues that his manager encouraged him to apply for reimbursement for this course and that the manager stated that the course would be helpful to the Grievor?s career development and might be approved. 10. The Employer notes that the supervisor/manager and the employee work together to develop individual learning and development plans. Although management suggests to employees that, to have a better opportunity to attend a course, they should add it to their plan, employees are also informed that putting a course on the learning plan does not mean they will be given the opportunity to attend this course, or that they will be reimbursed for the course. As noted above, reimbursement for a course is subject to the rules of the PAL and the Director's discretion. In addition, unless the Employer has instructed the employee to attend a course (work assignment), the PAL does 4 not provide for the reimbursement of meals, accommodation, or travel costs and the employee is expected to attend the course during his or her own time (non-work hours). 11. The Employer also notes that the course requested by the Grievor was an intensive and expensive four to five day in-residence program designed specifically for tax accountants in public practice. The course was more focused on personal income tax (as opposed to corporate tax). It was determined that this would not have been an efficient and effective method of training. The Director had never approved this course for Corporation Tax Auditors. The Grievor?s request was therefore denied. 12. It is the Employer?s position that Article 2 of the OPSEU collective agreement provides that the right and authority to manage the business and direct the workforce, including the right to determine training and development, is exclusively vested in the Employer. Under section (b) of the Reimbursement Criteria in the PAL, reimbursement of course tuition fee rests within the director?s discretion. This discretion is not one conferred by a provision of the collective agreement; rather, it is a discretion conferred by one level of management on another, concerning a matter on which the collective agreement is entirely silent. 13. The Employer argues that the onus is on the Grievor to establish that there has been a breach of the collective agreement, that its decision was conducted in a discriminatory manner, that the Employer has breached its policies or procedure or that it has applied its policies and procedure inconsistently. The Grievor has made no arguments of arbitrariness, bad faith or discrimination against the Employer. Furthermore, there is no allegation that the decision was applied inconsistently, that it has breached or inconsistently applied its policies and procedures or that the collective agreement has been breached in any way. The Employer submits that the Grievor has not satisfied his onus. 14. For this reason, it is the Employer?s position that this grievance ought to be dismissed as being inarbitrable as it does not involve a dispute about the interpretation, application, administration or alleged violation of the collective agreement. 15 The Parties ask the Grievance Settlement Board: (a) whether the Employer ought to approve reimbursement of the CICA Comprehensive Income Tax Practice Course, in accordance with section (b) of Reimbursement Criteria in the PAL; or (b) whether this matter ought to be dismissed. As the agreed facts reference the policy with regard to the Reimbursement for Educational Assistance, I would like to set out the relevant portions. They read as follows: 5 Reimbursement Criteria The following guidelines for course tuition fee reimbursement are applicable only upon successful completion (see appendix one for examples): (a) 100% reimbursement of the course tuition fee if the course directly relates to specific ?qualifications? of positions in Tax Revenue Division (i.e. a job requirement). Example: accounting courses for auditors. Specific courses leading towards a university degree required for entry into a CMA accounting program may also qualify for 100% reimbursement. Note: Mandatory course fees (CMA-Ontario/Canadian registration; CGA - basic tuition fee) will be reimbursed 100% provided the CGA - or CMA - sponsored course or equivalent, to which the fee relates has been successfully completed by the student. The portion of any professional program fee that relates to meals and/or accommodation is not eligible for reimbursement as educational assistance. (b) At the discretion of the director, an amount up to 50% reimbursement of the course tuition fee if the course is not directly program-related but nonetheless enhances or develops the skill-set of the employee for another position in the Tax Revenue Division. As reference is also made to Article 2 of the collective agreement in the Agreed Statement of Facts, I will set it out as well. It provides: 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 right and authority to manage the business and direct the work force, including the right to hire and lay-off, appoint, assign and direct employees; evaluate and classify positions; discipline, dismiss or suspend employees for just cause; determine organization, staffing levels, work methods, the location of the workplace, the kinds and locations of equipment, the merit system, training and development and appraisal; and make reasonable rules and regulations; shall be vested exclusively in the Employer. It is agreed that these rights are subject only to the provisions of this Central Collective Agreement and any other Collective Agreement to which the parties are subject. In exercising the rights found in Article 2 of the collective agreement and the discretion found in the policy with regard to the reimbursement for educational assistance, the Ministry must comply with the criteria which are set out in its policy and make a decision in good faith, 6 free from arbitrariness and discrimination. The employer must exercise its discretion in a reasonable manner having regard to the individual merits of each case and not simply resort to the rigid application of a policy. An effort must be made to obtain all the relevant facts prior to making a decision and management must endeavour to act consistently in similar cases. In considering the decision of management, the appropriate standard of review to be applied by an arbitrator to the decision-making process is that of reasonableness. An arbitrator should consider the reasonableness of the process that led up to the decision which was made by management. It is not my role to substitute my views for that of management or enter into an assessment of the correctness of the decision even if I might have come to a different conclusion (see in this regard: Young and Ministry of Community and Social Services (1979), 24 L.A.C. (2d) 145; O?Brien and Ministry of Correctional Services, GSB #1157/86 ((Gandz); Malyon and Ministry of Revenue GSB #1129/88 (Roberts); Elesie and Ministry of Health, GSB #24/79 (Swinton); and Sahota and Ministry of Correctional Services, GSB #2454/87 (Verity). In this case, in exercising the discretion inherent in the policy, the Director considered the fact that the course requested by the Grievor was an intensive and expensive four to five day in- residence program designed specifically for tax accountants in public practice. The course was more focussed on personal income tax (as opposed to corporate tax). It was determined that this would not have been an efficient and effective method of training. The Director had never approved this course for Corporation Tax Auditors. The Grievor?s request was therefore denied. The onus is on the union and the Grievor to establish that there has been a breach of the collective agreement in that management?s decision was made: in a discriminatory manner; or that the Employer has breached its policies or procedures; or that it has applied its policies and 7 procedures inconsistently. No allegations of arbitrariness, bad faith or discrimination have been raised in this case. In addition, there are no allegations that the decision in this instance was inconsistent with regard to the manner in which the policies and procedures have been applied in the past. Accordingly, I see no reason to interfere with the decision of the Director. The grievance is dismissed. th Dated at Toronto this 7 day of April, 2008. Janice Johnston Vice-Chair