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HomeMy WebLinkAboutP-2002-0003.Chyczij.09-09-21 Decision Public Service Commission des Grievance Board griefs de la fonction publique Bureau 600 Suite 600 180, rue Dundas Ouest 180 Dundas St. West Toronto (Ontario) M5G 1Z8 Toronto, Ontario M5G 1Z8 Tél. : (416) 326-1388 Tel. (416) 326-1388 Téléc. : (416) 326-1396 Fax (416) 326-1396 P-2002-0003 IN THE MATTER OF AN ARBITRATION Under THE PUBLIC SERVICE ACT Before THE PUBLIC SERVICE GRIEVANCE BOARD BETWEEN Ron Chyczij Grievor - and - The Crown in Right of Ontario (Ministry of Labour) Employer BEFOREVice-Chair Kathleen G. O?Neil FOR THE GRIEVOR Ron Chyczij Alexandra Chyczij FOR THE EMPLOYERAndrew Baker, through February 2, 2007 Yasmeena Mohamed, from March 14, 2007 Ryan Conacher, from February 4, 2008 Cathy Phan, November 18 and 24, 2008 HEARING January 25, 2005; April 6, 7, 2006; February 2, April 27, June 12, 13, 14, 18, July 10, August 8, 21, 23, 2007; February 4, 7, 29, April 24, May 2, May 13, July 11, 14, November 18, 24, 2008. CONFERENCE CALL March 14, 2005. - 2 - Decision [1]This decision deals with the merits of the grievance of Ron Chyczij, contesting the denial of a request for tuition assistance in relation to a Masters of Business Administration (MBA) program. It is his claim that it was refused for improper reasons, including reprisal for exercising rights under The Pay Equity Act and grieving a number of decisions of management. The employer denies the allegations, maintaining that the request was denied for valid reasons, having to do with the size and timing of the request, and fiscal restraint. [2]There have been a number of interim decisions on procedural and preliminary issues relating to this grievance, i.e. June 20, 2005 dealing with particulars and delay, July 4, 2006, dealing with jurisdiction, March 16, August 7 and 9, 2007, concerning production of documents and September 8, 2008 on issue estoppel. These decisions need not be summarized here, but may be referred to for more detail concerning the manner in which this matter unfolded. Facts [3]A brief introduction and chronology of the undisputed facts will serve as background to what follows. Factual determinations of the necessary disputed points appear later in the decision. [4]Ron Chyczij is a Review Officer with the Pay Equity Commission, having served in that capacity since 1990. By way of a form dated April 23, 2000, he applied to his manager, Bev Rosser, Director of the Pay Equity Office, for financial assistance in the amount of $24,950 for tuition and expenses for a three-year program leading to an MBA degree offered by Royal Roads University in Victoria, B.C.. It is common ground that she possessed the delegated authority to make a decision on the request. She did not support the initial request, and on March 10, 2001, he submitted a re-packaged request, applying for the amount of $4,784.68, representing his expenses for the first year of the program. On December 10, 2001, his request was denied in a letter which stated as follows: - 3 - I wish to advise that your request for Tuition Assistance is being denied. As you recall, I advised you that at the time of submission that requests for reimbursement should be submitted for approval before you register. Current budgetary pressures within the Pay Equity Office restrict approval of any type of assistance for courses that are not directly related or needed to perform your current duties. The course you wish to take is not required to perform the duties of a Review Officer. I did make a commitment to see if there was any corporate funding made available for retention/succession planning and have been advised by the Human Resource Committee that there is none. If you have any further questions, please come see me. This grievance was filed two weeks later. [5]In the time period between the two requests, the Ministry of Labour set up a committee known as the Tuition Reimbursement Practice Group, coordinated by John Deans, then Manager, Human Resources Planning. The group?s stated purpose was to determine whether managers had appropriately applied criteria developed for considering employer support for tuition reimbursement. Outstanding tuition requests were forwarded to the group, with the manager?s recommendation, positive or negative. All the managers? recommendations were approved at the single meeting of this committee on October 19, 2001, including Ms. Rosser?s recommendations against granting of the grievor?s request, and that of another Review Officer. The letter to the other Review Officer, Mr. Berenbaum, communicating the denial of his request, contained similar information concerning budgetary pressures and retention/succession planning, as well as the idea that any training money should be made available to all staff equally and priority should be given to courses related to performance needs. [6]On November 15, 2001, a document entitled Ontario Ministry of Labour 2001/02 Fiscal Strategy became effective, which outlined a number of fiscal restraint measures. Most relevant to this matter, it contained a freeze on discretionary expenditures including ?staff training and development that is not crucial to job performance and critical business needs.? - 4 - [7]Between 1995 and 2001, Mr. Chyczij acted as spokesperson for an anonymous group of Review Officers in a pay equity complaint against the Pay Equity Commission. The litigation concluded with a Memorandum of Settlement dated November 3, 2001. [8]When the grievor was unsuccessful in his application for a managerial position at the Pay Equity Commission, he launched a grievance on October 6, 2000, which was settled on November 7, 2002 with no admission of liability and on a without prejudice basis. He also filed a grievance dated June 18, 2002 concerning the cancellation of certain excess vacation days, which was settled on July 25, 2002, also without prejudice. [9]Mr. Chyczij successfully completed his MBA program, which he participated in between the spring of 2000 and 2003, through a combination of periods in residence and distance education. Statutory Provisions [10]Sections 17 to 24 of Regulation 977 under The Public Service Act, in force during the time period relevant to this grievance, relate to Staff Development, providing the employer with the discretion to authorize tuition assistance for staff development programs not conducted by the Ministry or the Civil Service Commission. Sections 17 and 24 are the most relevant to this case and provide, as follows: 17. The deputy minister of a ministry, (a) shall plan and provide for the employees of the ministry staff development programs for the continued efficient and effective operation of the ministry; and (b) shall provide to the Commission reports on the staff development programs of the ministry or on such aspects of the programs as the Commission may specify at such times as the Commission may require the reports. R.R.O. 1990, Reg. 977, s. 17. ? 24.Where a deputy minister is of the opinion that participation in a staff development program that is not conducted by a ministry or by the Commission and does not require absence from employment will provide a civil servant with skills or knowledge of value to the public service, the deputy minister may authorize payment by the ministry of an amount equal to all or part of the tuition fees and all or part of - 5 - the expenses specified by the deputy minister in connection with the participation of the civil servant in the program. R.R.O. 1990, Reg. 977, s. 24. Section 9(2) of the Pay Equity Act , also relevant to this matter, reads as follows: 9 (2) No employer, employee or bargaining agent and no one acting on behalf of an employer, employee or bargaining agent shall intimidate, coerce or penalize, or discriminate against, a person, (a)because the person may participate, or is participating, in a proceeding under this Act; (b) because the person has made, or may make, a disclosure required in a proceeding under this Act; (c) because the person is exercising, or may exercise, any right under this Act; or (d) because the person has acted or may act in compliance with this Act, the regulations or an order made under this Act or has sought or may seek the enforcement of this Act, the regulations or an order made under this Act. Positions/Submissions of the Parties [11]The grievance filed by Mr. Chyczij in December 2001 complains of a denial of tuition assistance. In his application to this Board and his statement of particulars dated July 11, 2005, the grievor elaborated on his allegations which can be grouped into the following broad categories: - breaches of policy and regulation by the Pay Equity Commission in relation to learning and development, education and career enhancement opportunities. - systemic discrimination in favouring Senior Management Group employees for tuition assistance and training over others - arbitrary, discriminatory and bad faith conduct towards the grievor personally in the denial of his tuition assistance request and otherwise. [12]As to the first of these groupings, the grievor urged a finding that he had a right to training under the employer?s policies. The grievor submitted that the policy documents should be considered the ?law? of the OPS (Ontario Public Service), affording equitable opportunities to learn to all public employees. He argued that the training he applied for should have been granted because the course was related to his job as it would have - 6 - enhanced several competencies as that term is used in human resource documents, as well as jobs he could have aspired to as a matter of succession planning. Specifically, he sees the MBA course as related to the Team Leader duties that he performed more often than other Review Officers. Further, the grievor argues that his MBA program was relevant to many jobs in the OPS, such that the request could have been approved with partial reimbursement, even if it was not 100% related to his current position. [13]Concerning the second theme, systemic discrimination, the grievor submitted that although the decision concerning tuition was discretionary it had to be done fairly, in a manner which avoided systemic discrimination. He bases his argument in this respect on the employer?s alleged failure to follow its own policy, hiving off an elite group of employees to treat differently. Concerning succession planning, the grievor submitted that the development of potential managers was improperly limited to a small percentage at the top of organization. Referring to evidence that the Commission had a succession plan at one point, but did not keep it up, the grievor invites a finding that this was contrary to the applicable policies. Further, and despite the freeze on discretionary expenses which became effective November 15, 2001, the employer continued to offer courses for those on the high potential candidates list. This included courses taken by his manager Ms. Rosser after the implementation of fiscal restraint, while members of the feeder groups, among which the grievor counts himself, were not afforded that opportunity. [14]The third focus of the grievor?s submissions relates to his allegations of individual bias, discrimination, bad faith and arbitrariness. The first example relied on in argument was that after he applied for tuition assistance in April 2000, the employer never approached him with an answer; he had to approach them. He asserts that he was entitled to a speedy answer, and that it was unreasonable to have to wait until December 2001 for a final answer. Moreover, other than conferences or group training, the grievor says he has never received any tuition assistance from the employer, while Masters level courses have been paid by the Commission, such as for a former legal counsel. - 7 - [15]Mr. Chyczij referred to the awkward situation he and his managers were in while he was acting as spokesperson and the only named applicant in an ongoing pay equity complaint, which started in 1995, and was resolved in the fall of 2001 for a large sum of money, just weeks before his tuition assistance request was denied.The grievor asserts he had become a marked person because of his role in the complaint. He states as well that he was the only one to have his excess vacation entitlement cancelled, and had to grieve to get his credits reinstated. [16]As further evidence of what he refers to as his blacklisted status, the grievor submits that he has had no response to job applications and has not been given interviews for jobs he is qualified for. When he grieved his failure to be awarded a managerial job at the Commission, it was settled in what he considers ?his favour?. In aid of his allegation of dislike for him, the grievor refers to unsolicited offers of buy-out packages received during mediation of one of his grievances and of a complaint under s. 9(2) of the Pay Equity Act with which he was associated. The grievor also refers to a former practice of rotation of those interested in acting as manager in Ms. Rosser?s absence for which he volunteered in 1999. He testified that after a conversation with her, in which she acknowledged his turn was next, she went on vacation and another manager covered her position. Shortly after, the rotation practice disappeared without explanation. The grievor has concluded that it was suspended because it would have been his turn and the employer did not trust him, disliked him and did not want him to gain an advantage on grievances, and/or they were against him because of grievances or pay equity activities. [17]Bad faith characterizes the employer?s behavior towards him in a number of ways, in the grievor?s submission. First, he says it is shown by Ms. Rosser?s lack of credibility. He submits that her evidence that she was unable to grant the requests for tuition assistance in the 2000/2001 fiscal year because of a policy ruling out any tuition assistance unless the program was 100% related to an employee?s current job is erroneous because that policy only came into effect on November 15, 2001, and earlier documents restricting tuition assistance were not located. A memo covering the 1999/2000 fiscal year only pointed to a freeze on new furniture and equipment, and not tuition assistance. Moreover, other witnesses could not confirm her contention. Noting that he obtained a - 8 - form for his tuition assistance application from Human Resources, he questions why they would have given it to him if there was a Ministry-wide freeze on tuition assistance. [18]The grievor contends that what was actually going on was that Ms. Rosser mislead him about the availability of funds, and was looking for a way to delay or deny his application by any means possible, and was in conflict of interest by paying for courses for herself, in preference to his request, when she could have delayed her own courses. The grievor characterizes as the ?deepest cut of all? the fact that Ms. Rosser did not even fill out a rationale form for the practice group that she said had to review his application. In addition, some of the tuition assistance requests approved by the practice group on October 19, 2001 would likely not have met the criteria set out in the November 15, 2001 fiscal strategy document. As well, despite having discussed the MBA program with him during his performance review in early 2000, Ms. Rosser said in her evidence she had not been aware of his interest, which indicates to the grievor that she did not take it seriously and never intended to do anything about it. [19]Further, he asserts that other Review Officers received paid training that was not 100% related to their jobs. Moreover, there was money left over at the end of the fiscal year that could have been put toward his request, even after paying for Ms. Rosser?s own courses. [20]The grievor argues that all of the above violates the government?s own directives and policies in which it has voluntarily adopted the proposition that employees will not be discriminated against and that all employees will receive equal treatment, and be dealt with honestly and with integrity. He notes that other policies require managers to be responsible for supporting employee learning and development and reflect the idea that it is vital to a flexible workforce to have a broad set of transferable skills. [21]The grievor also referred to the timing of the practice group as further evidence of reluctance to pay him tuition assistance. Having made his request in April 2000, and discussed it with Ms. Rosser on July 21, 2000, the grievor finds it ?interesting? that a few months later the Ministry hit on the idea of a practice group to ensure consistency in - 9 - tuition assistance requests, which was likely prompted by his own application, according to the evidence of Mr. John Deans, who was given the assignment to review tuition assistance policy at the time. The grievor also relies on Mr. Deans? evidence to assert that the practice group had very little information about his application, and just took his manager?s word on the merits of his request at its only meeting. [22]The version of facts which the grievor supports is that in July of 2000, Ms. Rosser told him that allowing his request would exhaust her training budget. However, there is no specific allocation for training; it falls within the large category of expenses other than salary and benefits, known as ODOE, an acronym for other direct operating expenses, and there was a surplus at the end of the year even after some of Ms. Rosser?s courses were paid for. The grievor submitted that the timing of Ms. Rosser?s application for her own courses was ?eerily? close to the time that he presented his first bill in March 2001. In addition, the spending on training went up for the Ministry and the Commission in the disputed period. If Ms. Rosser had been interested in supporting him, it would have been easy to justify his request, in the grievor?s submission. Instead, she mislead him and failed to support him, leading to his conclusion that ?everyone is more equal than me at the Commission?. [23]In support of the view that the government is bound by its own policies and procedures, the grievor referred to the following precedents: OPSEU(Rupert.)and The Crown in Right of Ontario (Ministry of Correctional Services) GSB #372/84 (Gorsky), OPSEU(Howes.)and The Crown in Right of Ontario (Ministry of Transportation and Communications) GSB #356/82 (Verity) affirmed by the Divisional Court by decision dated January 9, 1984, Court file #212/83, Di Gaetano and the Crown in Right of Ontario (Ministry of Municipal Affairs and Housing) (Walter) PSGB #P/0061/95, P0015/96 [24]By contrast, the employer argues that the grievor has not discharged his onus of proof, having failed to establish any right to tuition assistance in the circumstance, whether explicit or brought into existence by practice, or any bad faith in the exercise of discretion denying funding for his MBA. It is their position that when Ms. Rosser declined to - 10 - approve the grievor?s application, she was properly exercising her delegated authority in good faith and made a reasonable decision, which should not be interfered with. Because of a freeze on discretionary spending, she had to examine the duties of a Review Officer and see if the request was 100% related to current duties. If it was not, she had no authority to approve, in counsel?s submission. In the alternative, counsel submitted that even if the Board were to find that there was no freeze in existence at the time Ms. Rosser made the decision, the discretion was still there, and it is a matter of common sense that she would not be required to spend such a large amount on one person?s desire to have an MBA. She relies on the Cherwonogrodzky decision cited below, for the proposition that even if training might be somewhat useful to government operations, it is not unreasonable to decline to pay for it. [25]Referring to the dispute concerning the freeze on discretionary expense at the Ministry and the Commission, counsel notes that it is limited to the question of when it came into force. Counsel submitted that the evidence supports a finding that there was fiscal restraint in place before, during and after the grievor?s tuition assistance request. Responding to the grievor?s assertion in submissions during the evidence that Ms. Rosser had in fact agreed in July 2000 to fund some portion of his request if he resubmitted it, counsel argued that her contemporaneous note counters that assertion in that it specifically mentions a shortfall in discretionary expenses and that the course was not 100% related to core duties. [26]As to the committee which reviewed the outstanding requests for tuition assistance, the employer invites a finding that its purpose was to review template forms from managers who were recommending reimbursement, in order to ensure consistency, rather than being focused on why a request might not be recommended. Further, employer counsel highlights evidence to the effect that the committee had neither the authority to approve or reject an application, nor the intention of removing the delegated authority of the manager. [27]Emphasizing that the central allegation of bad faith is a very serious one, counsel for the employer argues that the only evidence linking the grievor?s activities as an applicant - 11 - before the Pay Equity Hearings Tribunal and as a grievor is his own subjective impression, which is simply not sufficient to make out a successful case. [28]As to the grievor?s frequent suggestions that Ms. Rosser exhibited bad faith by hoarding money in the budget to fund her own courses, counsel observes that the uncontradicted evidence was that she was directed to take the courses by her superiors, and that the budgetary arrangement was that it had to come out of her own budget. [29]Employer counsel urges a finding that, despite the length of this hearing, and the grievor?s many allegations, the facts are simple: Ms. Rosser had discretion, but it was limited during the relevant time due to fiscal constraint. Having determined that Mr. Chyczij?s MBA program was not 100% related to his duties as a Review Officer, she declined to approve it, which she had the authority to do. Further, she denied the request of another Review Officer, Mr. Berenbaum, for the same reasons of financial constraints, despite the fact that he applied for a course arguably more relevant to the duties of a Review Officer. The series of incidents which the grievor asks the Board to find constitute evidence of improper motivation do not outweigh this, in the employer?s submission. [30]Counsel submitted that the Board?s review of the reasonableness of the exercise of discretion to deny the grievor?s tuition assistance request should be based on the government?s business interest and the fact that it was made fairly and in good faith. In the employer?s view, it is sufficient for the dismissal of the grievance that the discretion was exercised in a manner that was relevant to a legitimate government purpose. [31]Employer counsel referred to the following case law in support of her argument: OPSEU(Cherwonogrodzky et. al.)and The Crown in Right of Ontario (Ministry of Finance) GSB #2002-0994 (Gray), (20030 127 L.A.C. (4th) 150; OPSEU(Leuser.)and The Crown in Right of Ontario (Ministry of Finance) GSB #2006-2139 (Johnston), OPSEU (Bousquet) and The Crown in Right of Ontario (Ministry of Natural Resources) GSB #541-90 (Gorsky), - 12 - [32]The grievor?s argument in reply reviewed his principal arguments, and underlined his position that if there was no freeze on discretionary expenses at the time Ms. Rosser made the decision, then it was in ?absolutely in bad faith?. [33]He also asserted that the training granted to Ms. Rosser was not likely related to her work at the time or any future work, or of much use to the Ministry. He said that he doubted her superiors would have picked the courses she took, inviting the Board to find that she picked them herself at the last minute, except for the three-week Public Executive course which he sees as more likely something the employer might have picked. [34]As to the fact that another Review Officer, Mr. Berenbaum, was also turned down for tuition assistance, even though his request was made in a different fiscal year, the grievor asserted that it would have been harder to say yes to Mr. Berenbaum since it would have meant they would have had to agree to his own request. Conclusions [35]The resolution of this dispute is usefully discussed by answering the following questions: i. What are the grievor?s applicable terms and conditions of employment? ii. Does the evidence establish a breach of those terms and conditions of employment? Terms and conditions of employment [36]The principal sources of terms and conditions of employment referred to by the grievor were legislation and policy documents, with some reference to practice and a partial oral agreement to pay him tuition assistance. a) Legislation [37]Section 17 of the regulation in place at the time, set out above, provides that a deputy minister of a ministry, shall plan and provide staff development programs for the continued efficient and effective operation of the ministry. - 13 - [38]Section 24 of the same regulation provides the authority to approve tuition assistance. By the use of the verb ?may?, it clearly indicates that it is a discretionary matter whether or not to do so. Further, the provision that the courses eligible are those that the deputy minister is ?of the opinion? will provide a civil servant with ?skills or knowledge of value to the public service? inserts a further significant element which is dependent on opinion, rather than mandated. It is common ground that the authority under this section has been delegated to the Pay Equity Commission and that it was Ms. Rosser who exercised that authority in considering Mr. Chyczij?s request. [39]Section (2) of The Pay Equity Act prohibits reprisals against the grievor for his activities related to the enforcement of that Act on behalf of the Review Officers. b) Policy documents [40]There are a number of policy documents in evidence which the grievor argues constitute terms and conditions of his employment, as documents voluntarily adopted by the employer. As the employer did not argue that the policies were not part of the grievor?s terms and conditions of employment, I do not consider this a contested point in this matter. [41]Chronologically, the first is a document entitled ?Ministry of Labour Guidelines and Procedures for Tuition Assistance, dated April 1990, with the stated purpose of guiding ministry staff and managers on procedures to be used for tuition assistance. It is not clear whether this was still in effect at the time that the grievor requested tuition assistance, but since the decision does not turn on any difference between it and later policy documents, it is not necessary to decide the point. It states that criteria for approval and the amount of reimbursement will be based on relevance to an employee?s duties, potential Ministry needs or the needs of the public service in general. It details percentages (100%, 75% or 50%) for qualifying reimbursement or payment in advance, according to the level of relatedness to an employee?s duties, and whether the Ministry has asked the employee to take the course, but does not say that any tuition must be reimbursed. Concerning procedure, it states that the application is to be completed prior to registration with the - 14 - educational institution, and that a reimbursement recommendation is to be made on the form by the supervisor. [42]A document dated February 24, 1999, entitled ?Human Resources Management Directive? provides that human resources management, defined to include, among other things, learning and development and succession planning, must be conducted in accordance with relevant employment legislation and corporate policies, and states that Human Resources management strategies, policies and practices reflect each public servant?s right to equal treatment and to work free from discrimination, will embody the values of honesty, integrity, fairness and diversity, and will place public interest above individual interest. [43]The grievor also relied on a report entitled ?Building a Learning Organization? presented to the Premier of Ontario on August 16, 1999 by the Secretary of the Cabinet. The grievor draws attention to its statement that staff development initiatives will include upgrading generic skills, developing key competencies, updating technical or professional capabilities and improving the managerial and supervisory skills of current and potential managers, a statement that also appears in a document entitled ?Framework for Action?. Examples of learning highlighted in the report do not however focus on funding individual post-graduate degrees. The document also states that there is a separate human resources plan for the Senior Management Group which puts a great deal of emphasis on learning and development and identifies mandatory corporate core competencies for that group. As to the OPS in general, the report notes that learning is more than training, and can occur in formal and informal settings. [44]A further document, part of the ?HR strategy series? is entitled ?Guide to Branch level Learning Plans - Planning to Invest in Learning and development? and dated September 1999. Its stated purpose is to help managers develop a learning plan for groups of employees outside the senior management group. It contains approaches and suggestions to help in the development of a learning plan which is linked to the business and performance goals of the branch or work group. Reference is made to concepts such as effective investment in learning, fostering strategic and equitable access to learning and - 15 - development opportunities. Employees are said to have primary responsibility for managing their own careers and for investing effort in their own ongoing development. Learning objectives are to relate directly to business outcomes and priorities for learning and development expenditures are to be set. No quantitative target for investment in learning was set. An individual learning plan is said to focus on meeting the development needs of an employee in the context of a particular job and to help achieve performance objectives. [45]The next policy document, entitled ?Learning Development Operating Policy?, dated June 1, 2000, highlights the connection between learning and a flexible workforce and enhancing the capacity of the public service to provide quality service. It contains provisions indicating that all civil servants are to have learning and development plans, implemented through performance management, and that managers are to establish supports for learning and development for the implementation of learning plans appropriate to the employee?s appointment. It does not mandate a specific format for learning plans, but defines it as a component of a performance development plan that identifies individual learning objectives, proposed strategies and anticipated results. It addresses tuition assistance only in the following sentence: ?Where approval of financial assistance and release time are required, decisions must be made in accordance with the PSA, Regulations 17-24?, a reference to the regulation, the applicable portions of which are set out above. The policy supports the development of skills and competencies to meet OPS business needs, and provides that learning and development activities should provide value for investment and result in demonstrated performance outcomes. It provides that learning and development opportunities should be accessible to everyone, but the definition of learning and development opportunities does not mention extended academic programs, referring instead to job shadowing, seminars, conferences and workshops. Mandatory requirements include that learning and development plans are to be aligned with the current and future business needs of the OPS, as well as reflecting ministry needs and the learning styles and needs of employees. It also provides that the Center for Leadership is responsible for education and communication strategies for the Senior Management Group. - 16 - [46]The ?Performance Management Operating Policy? (2000) flows from the Human Resources Management Directive, and indicates that performance management is to be consistent, objective, free from bias and reasonable, credible, defensible, feasible, logical, as well as transparent. Employees are to perform their functions in accordance with OPS values including open and honest behaviour and fiscal prudence, among others. Performance development plans are to be linked to the ministry?s business objectives. Supporting the Human Resources Management Directive as well is ?The Staffing Operating Policy?. Mr. Chyczij drew attention to its principles which include the idea that staffing practices should build the capacity to support employee efforts for ongoing development and employability, and the idea that staffing practices should reflect OPS core values, as well as its provision that decisions to incorporate behavioural competencies in staffing activities must be in accordance with the employer?s guide to competencies. [47]An undated policy entitled ?Recruitment and Selection for Senior Management Group Employees Operating Policy? provides that recruitment decisions for positions in the Senior Management Group are to be based on demonstrated competencies, the merit principle and the Human Rights Act. It links succession planning with the high potential Senior Management Group list and makes clear that the Centre for Leadership is responsible for the development and recommendation of recruitment and selection polices for senior managers. [48]Effective November 15, 2001, the Ministry of Labour adopted a fiscal strategy described in a document entitled ?Managers Guideline? which, among other measures such as requiring the approval of the Deputy Minister for any new job offer, froze discretionary expenditures known as ODOE (other direct operating expenditures). These explicitly included ?staff training and development that is not crucial to job performance and critical business needs?. Proposed exceptions were required to be considered for ?absolute need? and submitted with a rationale to the relevant Assistant Deputy Minister or Agency Head for consideration and possible approval by the Deputy Minister. - 17 - [49]A major issue between the parties relates to whether there was a similar freeze prior to November 15, 2001, the date the fiscal strategy was officially in place, since it is clear Ms. Rosser had decided against the grievor?s request prior to that date. Before dealing with this in detail, it is appropriate to note that all the witnesses, Ms. Rosser and Mr. Chyczij included, had imperfect memories about relevant events, especially about dates, particularly when not anchored in contemporaneous documents. This is not surprising, given they were testifying years after the disputed events, and not in itself indicative of a lack of sincerity, although it warrants caution in terms of the accuracy of certain aspects of the viva voce evidence, which will be detailed where necessary below. [50]I am persuaded by all of the evidence that it is more likely than not that there was no explicit freeze prior to November 15, 2001. Rather, it is my finding that the period leading up to the November 2001 policy was a period of fiscal restraint during which managers, including Ms. Rosser, had been asked to reduce expenditures and contribute to corporate budgets to the extent there was any surplus in a branch budget such as that of the Pay Equity Commission. Concerning the fiscal situation, Ms. Rosser, who was first called as the grievor?s witness, testified initially that the Commission was in a discretionary expenditure reduction phase, and that there was a shortfall in ODOE which made the tuition assistance unaffordable. This was linked in her mind to the idea that if the course requested was not related to core duties, it should not be approved. She emphasized that it was a government-wide ODOE shortfall, and that money was actually being taken out of her budget to help deal with it, and that there had been various meetings with finance about it. Her note to herself of a conversation with Mr. Chyczij on July 21, 2000 indicated that the program was not core competency, therefore not 100%, presumably referring to the percentage of possible reimbursement, and ?not feasible with ODOE shortfall?. Another note she made about a year later, after the re-packaged request had been submitted to the practice group, indicated that Mary Chrisanthus, then Manager, Pay Equity, had followed up with John Deans and notes the phrases ?short salaries, short ODOE?. [51]When Mr. Chyczij pressed Ms. Rosser about dates and documentation concerning the freeze, without first showing her the documents, she attributed the years 1999/2000 to the - 18 - fiscal strategy document which froze any ability to pay for tuition which was not 100% related to one?s current job. When she was shown the date of the November 15, 2001 document, she still recollected that there was a freeze on her ability to approve the grievor?s request even before that, explaining that the document merely formalized the content of the discussions which had preceded it. [52]Other evidence supports the idea that there was a pre-freeze period of serious financial pressure. A memo from the Deputy Minister dated July 13, 1999, relating to the 1999/2000 Ministry of Labour Fiscal Strategy detailed $7.45 million in financial pressures to be managed that fiscal year, and stated that it would require managers to exercise fiscal prudence to address these pressures and to maximize saving that may be used to offset pressures at the corporate level. Managers were reminded about an ongoing OPS-wide freeze on new furniture and equipment purchases. No mention was made of tuition assistance as under a freeze, but Ms. Rosser saw the two mentioned as examples of the discretionary expenditures which they had been directed to limit. Four witnesses called by Mr. Chyczij, in addition to Ms. Rosser, confirmed that there were financial difficulties in this period. Mary Chrisanthus, a public service manager for over twenty years, and Manager of Pay Equity programs at the time of Mr. Chyczij?s second request, referred to ?all the downsizing and constraints? after 1996 and verified there were ?lots of constraints in the period 2000 to 2003?. Ms. Peers, Pay Equity Commissioner at time, could not recall that the fiscal strategy was not in effect prior to Nov. 15, 2001, but was sure there had been something similar before then, and recalled clearly that the tuition assistance request had been denied, along with another Review Officer?s request, because they were under constraints, and the programs requested were not sufficiently relevant to the Review Officer job. [53]Mr. Rene O?Brien, currently a Senior Review Officer at the Pay Equity Commission, and a manager of Operations in the Ministry of Labour in the Niagara region during the period 1998 to 2002, said there were certainly financial concerns in the Ministry in the late 90?s and continuing through 2001, with weekly discussions with the senior management group making them fully aware of fiscal restraints. He had a certain amount - 19 - of his budget cut in early 2001 as well. Nonetheless, he did not recall any documents stating what managers could and could not do prior to the November 15 document, at least in his region, although there was generally less money to go around. As to tuition assistance, he recalled that as of 2001 all requests had to be forwarded to the Senior Executive Committee, but that the basic question was whether it was a fit, and that he approved tuition assistance in his area because he was facing a 50% loss in his management team in the next decade. Prior to that, he would discuss discretionary expenditures with his Director, whose signature would have been required to implement any tuition assistance recommendation. [54]Ms. Wong, who worked closely with Ms. Rosser, and whose job included tracking expenses for the Pay Equity Commission, said that she recalled discussions with Ms. Rosser concerning fiscal restraints from 1999 onward, on a daily basis. Mr. Deans said there was not a Ministry- wide ban on approving tuition assistance for courses not 100% related to an employee?s current job prior to November 15, 2001, but that it was possible that there were other constraints on the Pay Equity Commission prior to that. The Minutes of a Review Officer Services Meeting of October 15, 1999, a date well prior to November 2001, note that Ms. Rosser had reported on the budget forecast that the Pay Equity Commission was approaching difficult times, and proposing measures to reduce travel for Review Officers as a means of saving money. As well, the Pay Equity Commission?s expenditures and budget decreased in each of 1999/00 and 2000/01, the fiscal years leading up to the fiscal strategy, according to the documentary evidence. [55]In general, the evidence was persuasive that the November 15, 2001 documents was the culmination of many months of discussion among senior managers as to the necessity to control expenditures in general, and a documented freeze on some discretionary expenditures, such as furniture and equipment dating from several months prior to the grievor?s first request in March, 2000. [56]The grievor also put in his particulars that there were mandatory provisions applicable to the Pay Equity Commission about succession planning and high potential lists, but the evidence did not support any specific term or condition relating to his employment - 20 - contract in this respect, and is, in any event, something different than what the grievance complained of and asked to be remedied, which was the denial of tuition assistance. c) Was there an Oral Agreement to pay? [57]During his evidence, Mr. Chyczij asserted that Ms. Rosser had agreed in July 2000 to pay him tuition assistance if he re-packaged the request, and that the only outstanding issue was what percentage she would pay. This amounts to a suggestion that her later denial of the request breached a verbal agreement with him. The allegation that there had been an agreement to pay something towards his tuition was not mentioned in the grievor?s extensive particulars, was raised only after he and the employer had completed their initial examination of Ms. Rosser as a witness, and was not pursued by him in final argument. Nonetheless, it is appropriate to clear up the point, as Mr. Chyczij repeated it a number of times at other points in the hearing. It is my conclusion that the evidence, as detailed below, does not support a finding that it is more likely than not that Ms. Rosser agreed to pay any tuition assistance, and thus there was no breach of any verbal agreement to do so. [58]Ms. Rosser was recalled by the employer to respond to this and other points which had not been put to her when she was on the stand as Mr. Chyczij?s witness. She was very clear that she had never agreed to any tuition assistance even in some percentage less than 100%, to be determined after her conversation with Mr. Chyczij on July 21, 2000. Further, the contemporaneous documents tend to support her contention in this respect. She testified that if she had agreed to support the request, she would have signed the form submitted by the grievor, something the rest of the evidence supports is the practice when there is agreement to pay tuition assistance. It is common ground that she never signed either of the forms submitted by Mr. Chyczij, each of which has an area for checking off approvals of 50% and 75% as well as 100%, depending on whether the training is directly related to the job, relevant to Ministry needs or the wider public service. Her recollection of non-agreement is supported by the two contemporaneous notes, each of which mentions the ODOE shortfall situation, which she and others recollect as a principal reason for not agreeing to any tuition assistance. The first of those notes from July - 21 - 21,2000 says ?wants to submit 3 year breakdown ? said I would look at it?, something much less than agreement to pay some part of it. Ms. Peers and Ms. Chrisanthus, both managers at the time of the denial, recall that the request had been turned down because of fiscal pressures and that it was not sufficiently related to the job, mentioning nothing about a decision to pay some percentage in the future. Mr. Deans recalls being told the same at the time he was responsible for the practice group. [59]By contrast, Mr. Chyczij?s statements on this point are not supported by any contemporaneous document or other evidence, or even by his own application to the Board and particulars, the last of which was completed in July, 2005. In the particulars included in his Form 1A, dated January 7, 2003, much closer to the events, Mr. Chyczij wrote only that it was agreed in early March, 2001 that he would resubmit his application based on the courses attended in the current fiscal year, not that it was agreed that some of it would be paid. Although Mr. Chyczij also suggested that Ms. Rosser?s notes recorded comments about ODOE that she did not make to him, his recollection of exact details from years back did not seem any more reliable than any of the other witnesses, and is not supported by any notes of his own. Moreover, he initially disputed her evidence that they had met and discussed his tuition assistance request on July 21, 2000, but later conceded that she was correct on this point. d) Practice [60]The grievor wrote in his particulars, and suggested orally a number of times, that there was a practice of paying for MBA-type or masters level courses at the Pay Equity Commission for members of management and under previous managers for employees. Since it is possible for a practice to be sufficiently established to be properly considered part of the employment contract, it is appropriate to make findings on this point. [61]In the period relevant to this grievance, in which Ms. Rosser was the deciding manager, there is no evidence of payment for Masters level courses for anyone at the Commission. There is evidence of payment for two courses at Queen?s University Centre for Executive Development for Ms. Rosser, the longer of which was two weeks in length. The - 22 - evidence is uncontradicted that these courses were not the subject of a tuition assistance request from her, but the result of decisions made by the Centre for Leadership which dealt with training for the Senior Management Group, into which Ms. Rosser?s classification falls. The grievor was not a manager, nor part of the Senior Management Group. His position is excluded from collective bargaining because of the role Review Officers play between workplace parties, not because they exercise managerial duties. Although Mr. Chyczij sometimes acted as Team Leader within the Review Officer group, I am persuaded that this was a coordinating and mentoring role, rather than a managerial one. The evidence is clear that he does not have the same terms and conditions of employment in terms of training and development as Ms. Rosser, and other members of the Senior Management Group, and thus evidence that she and other managers in other parts of the Ministry and government received assistance for university courses is not evidence of any term or condition of Mr. Chyczij?s employment contract. [62]There was also some evidence that a former counsel to the Pay Equity Commission, not said to be a member of the Senior Management Group, had masters level courses paid for on the authorization of a former manager, but there is little evidence about the circumstances. More basically, one instance of such an exercise of discretion does not make a practice, and thus there is insufficient evidence to conclude that the grievor?s contract of employment entitled him to tuition assistance for masters? level courses by dint of well established practice. Moreover, there is the evidence of Ms. Wong, in place since at least 1999, who is responsible for having a look at all expenses that need to be paid at the Commission to see if they comply with the applicable rules and processing those approved. She testified that she had only processed one tuition assistance request in her time at the Commission, which was for a departing surplus employee, a category into which the grievor does not fall. [63]On Dec. 28 2000, as part of a review of the Ministry?s policy concerning tuition assistance by its Senior Executive Committee, a memo was issued to Directors and Managers by the Director of Human Resources requiring, on an interim basis, that new requests for tuition reimbursement were to be sent to their Human Resource consultant to be forwarded to a practice group reporting to the Senior Executive committee for review, - 23 - with an eye to determining guidelines for consistency. This was a change in practice, but did not affect the underlying policy. In the spring of 2001, Ms. Rosser forwarded both Mr. Chyczij?s and Mr. Berenbaum?s requests to Human Resources as directed by the memo. [64]A form entitled ?Tuition Reimbursement Support Rationale? was developed to be filled out by managers for the purpose of giving the Practice Group insight into why a manager was recommending approval of an educational activity. An e-mail from Mr. Deans, dated August 3, 2001 to Human Resource personnel who might be asked about the form by managers, indicated they were to ask managers to provide their rationale for approving a request on that form. It says nothing about decisions not to approve. The form itself asks questions related to how the course would support efficient and effective operation and would provide skills and knowledge of value to the public service and support performance of duties, and called for a description of business relevance, items more relevant to approval than disapproval. Ms. Rosser did not fill one out for Mr. Chyczij?s request, or for Mr. Berenbaum?s. Mr. O?Brien, who was a manager in the Niagara Region at the time, and was supporting a request that went forward from his area to the practice group, thought that the form was to be filled out whether or not the manager was supporting the request. On balance, however there is nothing about the form or the evidence concerning its intended use which suggests that it was required to be filled out if the manager did not support the request for tuition assistance. Thus, I do not find it to have been a term or condition of the grievor?s employment contract, that his manager was obliged to fill out the form, although she was required to forward the request to Human Resources for review. [65]It is appropriate to note that, in the end, the practice group had no impact on the fate of Mr. Chyczij?s request, other than adding a step in the process of consideration. Nor did it change or create any term or condition of his employment. The group, which included Ms. Peers, who had been advised of Ms. Rosser?s reasons, discussed his request, along with the other requests which had been forwarded to them, all but Mr. Berenbaum?s being from other branches of the Ministry. They ?approved? all the managers? - 24 - recommendations, in the sense that the outcome of the meeting recorded concurrence with all of them. Nonetheless, the evidence is clear that the practice group had not been empowered to exercise discretionary authority instead of the managers. Given that the group did not challenge any of the decisions, it is not known what would have happened if they had expressed disagreement. * * * [66]To summarize the main terms and conditions of employment related to the grievor?s tuition assistance request: there is no specific entitlement to tuition assistance where a course is not assigned by the employer. Ms. Rosser had the delegated regulatory authority to exercise discretion to support such a request or not. After November 15, 2001, policy prohibited her from authorizing tuition assistance for courses that were not crucial to job performance, unless a formal exemption were granted by the Deputy Minister, on the basis of ?critical need?. Prior to that date, exemptions were not required. However, at least from the fiscal year 1999/2000, fiscal restraint to maximize savings so as to be able to return money to the corporate level was the fiscal direction in effect. In the result, there was a requirement on Ms. Rosser to exercise heightened fiscal restraint, particularly as to discretionary expenditures, a category into which tuition assistance falls, throughout the period she was considering Mr. Chyczij?s requests of April 23, 2000 and March 2001, which spanned the fiscal year 2000/2001 and part of 2001/2002. [67]Further, the grievor was required to have a learning and development plan, and if tuition assistance was required, it was to conform with Regulation 977 under The Public Service Act. As general background, human resources practices, including those related to learning and development, were to be conducted in accordance with relevant employment legislation and corporate policies, and reflect each public servant?s right to equal treatment and to work free from discrimination, embody the values of honesty, integrity, fairness and diversity, and place public interest above individual interest. - 25 - Was there a breach of the grievor?s terms and conditions of employment? [68]In deciding if a breach occurred, in the absence of a prescribed entitlement to tuition assistance, the standard of review of discretionary decisions, articulated in the case law, is that they will not be interfered with unless they are made in a manner that is arbitrary, discriminatory or in bad faith. a) Legislation [69]The grievor alleges that the Commission failed to comply with the spirit and intent of the Public Service Act and its regulations, and Part III of Regulation 977, in particular, which deals with Staff Development, the relevant portions of which are set out above. There is no breach in this respect, as the legislation did not provide any entitlement to tuition assistance in the circumstances of this case. The regulation describes the authority for the delegation of discretion to Ms. Rosser which was the basis for her consideration and rejection of Mr. Chyczij?s request, which will be dealt with below. b) Policy [70]In his written particulars, the grievor alleges a number of broad failures to comply with policy. These include that the Pay Equity Commission failed to implement the stated strategies, visions and values of the OPS regarding employee development, training and continuous education and related career enhancement opportunities, as well as the directives, guidelines, policies and best practices pertaining to employee development, training and continuous education. Further, he alleges that the Commission failed to meet the mandatory requirement to make human resources management an integral part of its business planning process, failed to model human resources management best practices, failed to support employee learning and development, failed to improve the workplace environment and failed to respect his right to fair and equal treatment. In their broad sweep, at the general level, those allegations were neither well detailed, nor proven. The allegations pertaining to Mr. Chyczij individually set out in the particulars will be dealt with further below. - 26 - [71]There was insufficient evidence to support a finding that the policies relating to learning and development were not being followed at the Pay Equity Commission in regards to Mr. Chyczij. The only direct reference to tuition assistance in the most recent policy on learning, from the year 2000, is phrased in terms of where tuition assistance is ?required?, and refers back to the regulation. Since the evidence does not support a finding that tuition assistance was required, this portion of the policy was not breached. Further, and although Ms. Rosser did not support his request for funds toward his MBA, she did discuss training and development with him as part of the performance management process, and support his attendance at other programs such as the government?s own Executive Dialogues that would have been aimed at managerial skill development. She included him in the generally applicable planning and training such as Alternate Dispute Resolution training which was offered to all the Review Officers. She also tried to arrange job shadowing with mediators in another portion of the Ministry, but for confidentiality reasons, the other manager was not open to it. Further, she signed a letter at Mr. Chyczij?s request, albeit at least partially drafted by him, indicating he would be a suitable candidate for the MBA program. [72]Although the grievor argues that Ms. Rosser did not take it seriously, he did have a learning plan in his performance evaluation document dated in January 2000, a few months before his first tuition assistance request. The final page of that document is entitled my ?Training and Development Plan?, wording reflective of the policy documents concerning learning plans, and refers to administrative law and alternative dispute resolution, neither of which are reflected in the descriptions of the course material for the MBA requested a few months later. [73]On the previous page of the grievor?s performance evaluation, entitled ?Career Planning?, in the space reserved for short term goals, Ms. Rosser wrote the words ?Labour Relations Officers? and ?mediator? and for the long term, the words ?management and succession planning?. In the corresponding box marked ?Action Plan?, she wrote ?Job Shadowing? opposite the short term, and ?Executive Dialogues? and ?MBA course tuition? opposite the long term. The grievor did not suggest that this entry represented a commitment to pay tuition and Ms. Rosser was clear that she was - 27 - only recording what had been discussed, and that there had been no commitment to pay by writing down the grievor?s goals. [74]The grievor also wrote in his particulars that the Pay Equity Commission had failed to develop meaningful learning plans. The evidence does not support this in general, or in the particular case of the grievor. Although brief, the plan for his learning has clear meaning, and its content, referencing ADR (Alternative Dispute Resolution) and administrative law, appears directly relevant to his job, something supported by the policy documents. Further, it mentions lunchtime and half-day seminars, learning formats which are in line with those emphasized in the learning policy documents. [75]Throughout the hearing the grievor returned to the theme that funding his MBA would have been in line with the employer?s policies as to learning and development. In the abstract, of course, any learning can be said to contribute to the goals articulated in those documents of establishing and maintaining a ?learning organization?. However, there are various portions of those policies which communicate strongly that the choices of training and development are intended to be preferentially aimed at supporting the achievement of performance outcomes and commitments or established succession planning goals. The evidence does not establish that funding anyone?s MBA was needed for either of those things at the time. As to the first, the evidence is very clear that the grievor worked as a Senior Review Officer and Team Leader for many years without need of an MBA, and as for the second, Ms. Rosser said there had been no request from Human Resources for specific succession planning, which would have been her trigger to focus on that. As well, the policies articulate the necessity to take into account fiscal prudence and to select the most appropriate options to achieve desired learning outcomes. As a matter of giving plain meaning to the documents, even if there were no financial pressures, the policies cannot sensibly be read to require the funding of even part of an MBA for any applicant who could benefit from one, a proposition which it would be necessary to endorse to accept the thrust of the grievor?s overall interpretation of the learning and development policies. He also made the point that his MBA program was richer in educational content than the courses being offered by the employer, something very possibly true, but not something that assists his case, given the overall thrust of the policy documents. - 28 - [76]More specifically, the grievor alleges that the employer hindered his attempts at advancing his own career and his efforts to use the policies and materials related to competencies. The term ?Competencies? is used in the employer?s human resources context to mean observable skills, knowledge, attitudes and behaviours associated with effective functioning in a job. The grievor focused on the idea that many of the competencies deemed useful to the public service in the employer?s documents were enhanced by his MBA program. He emphasized that this applied to both his Review Officer job, and the many other public service jobs he might aspire to, including managerial ones. Ms. Rosser testified that ?Competencies? in the official sense of the word, were not used in the Pay Equity Office except for the Senior Management Group, and in the creation of job descriptions and interview questions for other classifications. The history of the use of the term set out in the employer?s policy documents supports the idea that they were more in use for the Senior Management Group. Further, the policy documents do not mandate their use in any context of which the grievor complains. As of 1999, the employer?s Guide explicitly stated that the use of competencies and competency models for all jobs was not advocated. However, the evidence is persuasive that Ms. Rosser did generally turn her mind to the degree of relatedness to core competencies and necessity to the performance of his current job of his proposed post- graduate program. In general, the evidence does not show that he was hindered from developing competencies, as he was offered learning opportunities that had the potential to enhance them, albeit not in the form of financial support for his MBA. [77]In any event, in a general sense, I accept that the grievor?s MBA studies had the potential to improve a large number of competencies generally useful to the public service as well as to himself in life and in his career in the sense of giving him transferable skills. Further, they might have enhanced his ability to do his job as a Review Officer, including as team leader. The potentially relevant competencies include, to name but a few of the thirty-five named in the policy documents, by way of example: analytical thinking, conceptual thinking, concern for order, flexibility, initiative, interpersonal understanding, and self-control. However, the policy documents also explicitly state the obvious: formal training can contribute to the development of some of the behavioural competencies, - 29 - although it is less effective for others. Further, as Mr. Deans put it at one point in his evidence, a high degree of relatedness to the job did not require financial support for training or tuition, so that even if the MBA had been very related to the current needs of his job, the policies did not require it to be funded. [78]As well, the suggestions for development of competencies found in the policy documents are oriented to more local, less formal or self-directed learning activities than the grievor?s multi-year MBA program. This aspect of the policies supports the idea that Ms. Rosser?s suggestions that the grievor try the free or low-cost OPS programs as a first step toward working towards his managerial aspirations were at least reasonable in the context in which they were both working, which has as a constant the guiding principle of fiscal prudence, quite apart from the issue of fiscal constraints. It does not seem objectively unreasonable that a manager would decide against an expenditure of more than $4,000, let alone a $25,000 one, until the locally available, less expensive options had been tried by the grievor. Nor is this out of step with the fiscal prudence integral to the policy, even if such prudence had not been heightened under the fiscal directives of the day. Furthermore, the evidence was clear that the general approach to training at the Commission had been to extend other, less expensive options to all of the Review Officers, whereas the MBA would have preferentially benefited the grievor individually. At a basic level, this thread of fiscal prudence and a practice of planning other types of training, accessible to the whole group, both elements supported by the policy documents, counters the central theme of the grievor?s presentation that the decision was obviously biased against him. [79]It was clear throughout the evidence given by the grievor that he believes that management does not want him to succeed, something he illustrates by reference to the many managerial jobs he has applied for without success. To the extent that evidence is related to the facts underlying the grievances settled by Minutes of Settlement dated November 7, 2002, it is precluded from consideration by the release portion of that settlement. Moreover, the subject matter of this grievance is not managerial job competitions. The general theme of bias against him is considered below. - 30 - c) Bad Faith, Arbitrary, or Discriminatory manner [80]The grievor believes that Ms. Rosser was not acting in good faith when she turned down his tuition assistance request, that her reasons were a sham and that in reality she was acting arbitrarily and in a discriminatory manner. The evidence proposed as a basis for those inferences ranged over a decade and the whole of the Ministry of Labour. Rulings were made at various points in the hearing, including the written decisions referenced above, establishing the boundaries of relevance as those things reasonably related to the disputed decision of the Pay Equity Commission on tuition assistance, rather than collateral issues too remote to have a reasonable prospect of being helpful in the resolution of the necessary issues. Relevant evidence included information about policies and practice of the public service and Ministry impacting on the Commission, as set out above, in respect of tuition assistance and discretionary expenses, including the Ministry?s fiscal strategy and the Ministry?s practice group to which the Commission?s tuition requests were forwarded. Evidence ruled to be insufficiently probative included individual decisions about tuition made elsewhere in the Ministry of Labour, as there had been no allegation in the grievance or particulars that the decision denying tuition assistance to the grievor was inconsistent with decisions made by managers outside the Pay Equity Commission. Instead, the allegation was of bad faith and discrimination within the Commission. Thus, allowing evidence concerning the details of individual exercise of discretion by different managers outside the Commission, with separate budgets, priorities, personnel needs, and job classifications, would have been in aid of a collateral issue which would have unnecessarily protracted an already lengthy hearing. i. Bad faith [81]In its most ordinary sense, bad faith means pretending to do one thing, while actually doing another, for instance, giving legitimate-sounding reasons to cover improper motivation. As case law has established, ?good faith" and its opposite, "bad faith", refer to subjective states of mind, the former motivated by "honesty of purpose" and the latter by "ill-will". A decision made in bad faith is grounded, not in a rational connection between the circumstances and the outcome, but in antipathy toward the individual for non-rational reasons. See for instance: Collins vs. Transport & Allied Worker?s Union - 31 - (1991) 6 CPC 3d 206 and Re Alcan Wire & Cable And United Steelworkers (1992) 26 L.A.C. (4th) 93 at pg. 102. [82]In this case, the grievor asserted that bad faith is shown by lack of credibility of the testimony of Ms. Rosser, who made the disputed decision. Chief among the indications of bad faith in the grievor?s view was the fact that Ms. Rosser asserted she was unable to authorize his request because of a freeze on ODOE expenditures, while other evidence establishes that it did not come into effect until after her decision not to recommend the tuition assistance was made. For the grievor, inaccuracy on this point is proof of bad faith. Although I have found above that the explicit, Ministry-wide, freeze on any tuition assistance that was not crucial to an employee?s current job performance became effective after her decision, I am not persuaded that there is sufficient basis to move from this error in Ms. Rosser?s evidence to a finding of bad faith. In my view, her evidence was marked more by inability to recall details of timing, something consistent with the length of time that had passed since the events, during which she retired from the public service, rather than insincerity masking malice toward the grievor. Her mistake concerning the date of the full freeze on tuition assistance, which amounts to merging in her mind the less formal period of discretionary expense reduction with the more formal freeze, is not of the magnitude or kind to warrant the inference of bad faith. It is clear that there was little difference in Ms. Rosser?s concept of her duty in regards to discretionary expenditures between the period of restraint prior to the official freeze and during it; she felt she had been directed not to authorize any unnecessary discretionary expenditure in either period. I do not find her approach to be objectively unreasonable. [83]Further, the other evidence supports the idea that the earlier fiscal pressures were real, relied on and articulated by Ms. Rosser prior to the November 15, 2001 freeze as an important part of the reasons for the rejection of the request. The fiscal situation and the lack of direct relatedness of the proposed training to the needs of the organization, in the sense of whether it was needed for the grievor?s job, were the reasons given at the time both to the grievor and to other managers at the Commission, and Mr. Deans in Human Resources. The evidence did not establish that those reasons were not legitimate reasons in any general sense. It is well within the purview of a manager, especially during a - 32 - period of deteriorating fiscal conditions, to decline a significant discretionary expenditure, which was unnecessary to any demonstrated business need at the time. Unfortunately for the success of his grievance, Mr. Chyczij did not succeed in establishing that there was any irrationality in her view that funding his MBA was not a fiscal priority at the time. [84]Mr. Chyczij sought to further impugn Ms. Rosser?s credibility by saying that she had initially said to him that she would ?blow her training budget? if she spent $25,000 on his MBA, when other evidence was that there is no separate budgetary allocation for training. Ms. Rosser does not recall making the remark. Nonetheless, even if she did, it is not obviously evidence of lack of sincerity. It is equally consistent with an ordinary conversational manner of expressing that it was a large request for a single individual. In any event, there is a line item in the annual budgetary roll-up figures Mr. Chyczij put into evidence that separates out Training and Staff Development, making it not implausible to refer to it as a budget item. [85]In addition, the grievor maintains that the only reason Ms. Rosser did not pay for his tuition even though there was some money left at the end of the year was that she preferred her own courses, which he says she could have delayed, so the money could be used for his tuition. There are at least two other more plausible reasons in the uncontradicted evidence. First, there were directions coming from managerial meetings to control expenditures of all kinds to contribute to corporate and other shortfalls, and secondly, it was not Ms. Rosser?s choice to enroll in the courses she did. Further, the evidence demonstrated no urgency to the grievor?s MBA, from his or the government?s point of view. Accordingly, I find no sufficient basis for an inference of impropriety from the fact that Ms. Rosser enrolled in the courses she had been directed to at the same time as deciding not to agree to his request. [86]Apart from the confusion about the dates of the official freeze, the rest of Ms. Rosser?s evidence was not successfully refuted. She said that when the grievor presented the first request in April 2000, they had a conversation about the chances it would be approved, and that she indicated it probably would not be approved because an MBA program was - 33 - not directly related to his core duties, and because of the high cost during the period of restraint. She also mentioned that the application was made with very short notice, about one week before the course. She said the request was turned down because she did not have $25,000 in her budget for such an item, and having considered the possibility of partial reimbursement prior to the conversation on July 21, 2000, she did not feel it was relevant to the needs of the office, the Ministry or the public service at that point. Moreover, she felt it was more a course for managerial staff than someone in the grievor?s position. [87]The grievor submitted that an adverse inference should be drawn because Ms. Rosser?s supervisor Peter Inokai had not been called to support her evidence. Although at one point the grievor alleged that ?someone up there doesn?t like me?, referring to those above Ms. Rosser, something not in his particulars, the core allegation concerned the subjective motivation of Ms. Rosser, something into which Mr. Inokai had no necessary insight. Nor is there any disputed point in the rest of the evidence, warranting any inference that Mr. Inokai?s absence as a witness means his evidence would have been unfavourable to the employer. On the question of the existence of an official freeze on tuition assistance prior to November 15, 2001, for instance, his evidence was unnecessary to the finding above, which accords with the grievor?s assertions on that point. The grievor also suggested more generally at one point that a negative inference should be drawn from the fact that the employer had not called other witnesses to support their case. This is difficult to accept as Mr. Chyczij himself called several witnesses who might have been considered more likely witnesses for the employer, who were then cross-examined by employer counsel. It is quite unclear who else the employer could have called who would have been able to shed light on Ms. Rosser?s motivation. [88]The main improper motivations for which Ms. Rosser?s expressed reasons are said to be a The Public Service Act and pretext are reprisal against the grievor for grieving under exercising rights under The Pay Equity Act, conflict of interest and personal antipathy, including a desire to prevent him from improving his chances in future managerial competitions. Ms. Rosser directly denied the allegations. The evidence relied on in terms of the reprisal allegations include timing, in that there was a considerable amount - 34 - of activity related to both the pay equity complaint and grievances relating to managerial competitions throughout the period in which the grievor?s request for tuition assistance was being considered. Temporal correlation is of course not sufficient proof of cause, but it does make it a possibility. On the other hand, being active in the assertion of one?s rights does not bestow immunity from the generally applicable conditions of the workplace. One cannot assume or leap to the conclusion that because Mr. Chyczij had challenged the employer, any unwelcome managerial decision was motivated by a desire to ?get back? at him. Although it is notoriously difficult to prove the subjective state of any person?s mind, for the purpose of a legal decision there has to be a persuasive basis from which to infer dishonesty of purpose. [89]I have carefully considered all the expressed underpinnings to the grievor?s conviction that his tuition assistance request was turned down for dishonest reasons covering Ms. Rosser?s improper motivation, and am unpersuaded by the evidence and argument that his view is more probably than not correct. At the most basic level, the evidence is consistent with good faith in that there is a rational relationship between the decision and the facts underlying the decision. As noted above, funding his MBA was not shown to be a necessary expenditure, nor would it have been in line with Ms. Rosser?s general approach to training for Review Officers, of which the grievor had had the benefit. [90]The evidence she gave initially about her reasons for turning down the request, being discretionary expenditure reduction and insufficient relatedness to his current duties, is supported by her contemporaneous notes, as well as by the letters denying both the grievor?s and Mr. Berenbaum?s requests for tuition assistance, the latter dated October 19, 2001, a date prior to the formal freeze. In terms of the substance of those reasons, as discussed above, the fact that there was a partial freeze on ODOE expenditures after 1999 and a general exhortation on managers to save money to contribute to the corporate coffers supports the legitimacy of the purpose expressed in Ms. Rosser?s contemporaneous notes, and her letters turning down the requests. [91]Mr. Chyczij also felt that it was disingenuous of Ms. Rosser to say she would look at a repackaged request if she had no intention to pay. She replied that she did not know how - 35 - long the freeze would last, and did consider it. She was, as noted above, mistaken about the date of the freeze. Nonetheless, the rest of the evidence is persuasive that she did consider the second request and that she and Ms. Chrisanthus were seeking advice in the interim, during which the fiscal situation had not improved. Accordingly, I do not find this point to support dishonesty of purpose. [92]Mr. Chyczij also felt mislead by the fact that Ms. Rosser did not tell him she had recommended against the approval of the tuition assistance request when she told him it had been forwarded to the practice group. The circumstances were that he had inquired about the status of his request, after she had forwarded it to the practice group as directed. She inquired of Human Resources, who answered by e-mail that it was with Mr. Deans who would bring it forward to the committee for a decision. Ms. Rosser forwarded the e- mail to Mr. Chyczij. Since the practice group was novel, and its approach and outcome unknown, I do not consider this to be a misrepresentation on her part.Nonetheless, it is true that transparency would have been enhanced had she let him know that she was not supporting his request. With that said, however, it was not so lacking in transparency as to warrant a finding of bad faith or some other breach. [93]The grievor also suggested that if the only thing restrained was tuition assistance that would show discrimination against him and bad faith. The evidence does not support the assertion that only tuition was affected; for instance, both Ms. Rosser and Mr. O?Brien testified that they sustained budget cuts, and that there were general restraints throughout the relevant period. ii. Discrimination [94]The grievor alleges in his particulars that the Pay Equity Commission, while claiming insufficient funds to provide educational assistance to the Applicant, saw fit to provide other training to managers, and in particular Ms. Rosser, and refers to this as systemic discrimination. He points out that she applied for three courses in 2001 close to his request for tuition assistance. The grievor stresses that the expenditure for her courses made up the largest share of monies spent on training in the year he made his request, and - 36 - alleges that Ms. Rosser was in a conflict of interest in this regard as well. Further, the grievor points out that there was a surplus in the Commission?s budgets at year-end for 1999 to 2003, and the money could have been spent on affording him at least some tuition assistance. [95]As noted above, Ms. Rosser?s uncontradicted evidence was that she registered for the courses on the direction of her superiors. As part of her performance contract process, she had been identified as a high potential candidate, and was required to take these courses, approved at the Deputy Minister level, and signed off by her own supervisor, but the cost was required to come out of her budget. The fact that Ms. Rosser was part of the Senior Management Group with a different set of terms and conditions of employment than Review Officers is an important basis on which the difference in funding is explained by the employer. Any organization which provides more attractive remuneration or benefits to some employees than others can perhaps be said to be ?systemically discriminating? in some non-legal sense of those words. But the law requires some improper basis to the differential treatment before it is considered wrongful or deserving of remedy. More generous terms and conditions of employment for more highly rated classifications, controversial though they may be to those not covered by them, do not in themselves constitute such an improper basis. [96]As to the allegation of conflict of interest, I am unaware of any authority for the idea that a manager administering a budget in which her compensation or other benefits takes up a larger proportion of the funds than others is in a conflict of interest, particularly when that manager does not set the compensation and benefits. The grievor?s allegation is more specific though, to the effect that Ms. Rosser enrolled in the courses she did, when she did, in order to secure the money for herself rather than leave it available to fund the grievor?s MBA courses. Although the grievor is apparently convinced of the truth of his perception in this regard, the other evidence does not support it. As noted above, Ms. Rosser?s evidence about how she came to enroll in the programs she did is uncontradicted. It is also supported by the evidence of Ms. Peers, then Pay Equity Commissioner, Ms. Wong, who processed the payment for it, and in a general way by the policy documents which describe the role of the Centre for Leadership in the training of - 37 - the Senior Management Group as distinct from other employees. The evidence simply does not provide any basis to find that Ms. Rosser somehow organized or influenced her own performance review process and engagement with the Centre for Leadership in order to disadvantage Mr. Chyczij. [97]My view of the other allegation of conflict of interest, to the effect that Ms. Rosser was in a conflict of interest because the MBA would give him an advantage in future competitions for managerial jobs in which he would be competing against her, is similar. Although it is theoretically possible that such motivation could exist, it is not likely on the evidence, which included that she had already been a manager for years at the time she made the decision. More generally, the underlying suggestion that a manager is in a conflict of interest in any operational decision which could enhance or detract from an employee?s future chances of promotion into the managerial ranks, no matter how remote from the individual manager?s interest, is a far reaching proposition for which there is no authority before me. [98]In another allegation related to Ms. Rosser?s courses, the grievor asserted that she prepaid for the courses in 2000/2001 partly to legitimate her claim that there was an insufficient ODOE budget. There is insufficient evidence to support such a finding as well. Her evidence was that she registered prior to the end of that fiscal year, and payment was required on registration. Ms. Wong also testified that it was not unusual to pay in advance. Further, the evidence of a number of witnesses, including Mr. Chyczij?s, established that it was not unusual to use spare funds at the end of the year so as not to lose them, something also in accord with the probabilities of the situation in a period of fiscal constraint. [99]During his evidence, the grievor also indicated that other employees had courses funded that were not 100% related to their jobs, suggesting that it was therefore discriminatory to refuse to fund his MBA on this basis. Other than his assertion, which appeared to be based on the titles of the training programs listed in the budget documents, there is no evidence of their content or job-relatedness.More basically, none of them were shown to be personal tuition assistance requests, as opposed to training offered by the employer, a - 38 - category which was also available to the grievor as part of the Review Officer group. As well, the per capita expenses are all modest compared to the size of Mr. Chyczij?s request. In sum, I do not find the evidence of treatment of other employees for training purposes to be indicative of discrimination against the grievor. [100]Mr. Chyczij also sees the fact that there was awareness at the Ministry level concerning his tuition request as further evidence of impropriety. Ms. Rosser acknowledged that she sought advice from Human Resources about the tuition assistance request, but could not recall whether it was for the first or the second request. Mr. Deans? evidence included the information that there had been a request for guidance about tuition assistance from the Commission and that he thought, but was not sure, that the grievor?s request had been the impetus for the subsequent formation of the practice group. In my view, this is not persuasive evidence of anything problematic. It is rather more indicative of an attempt to enhance consistency of treatment in a circumstance where the policy documents do not provide much guidance about what tuition assistance requests ought to be funded. Indeed, other employees might have thought it improper if a personal request of the size of Mr. Chyczij?s had been supported without consideration of issues of consistency. Seeking advice from Human Resources is consistent with an effort to deal with the matter on an objective and well informed basis as well. A review of the whole subject of tuition reimbursement carried out by Mr. Deans and dated November 6, 2000 also identified that other ministries had requested additional guidance on tuition reimbursement and that there were gaps in the guidance afforded managers in the policy documents. Although there was a good deal of delay in responding to the grievor?s request, and in assembling the practice group, the evidence simply does not provide a sufficient basis for finding that the reasons for the practice group or the delay to which it contributed were improper or directed at ensuring that the grievor was not supported in his request. iii. Arbitrariness [101]In addition to the allegations dealt with above, the grievor particularized other incidents to support his general contention that his tuition assistance request was not approved because he was disliked and a ?marked man? in his managers? eyes. These can be generally characterized as allegations of bias or arbitrariness. One of these was that the - 39 - employer terminated the practice of rotation of Review Officers into temporary replacement of Ms. Rosser?s position when it was his turn without explanation. There is very little evidence about this other than the grievor?s assertion, and it is not clear when it happened other than that it was after 1999, and presumably before his tuition request was turned down in 2001. At the most basic level, there is no evidence that the employer was required to rotate Review Officers through vacation relief of managers, especially during a time period when the grievor was engaged in litigation and settlement discussions with them. And although the evidence leaves a question mark in respect of why it was discontinued, the practice was not closely enough involved with anything to do with the tuition assistance request to warrant the sweeping inferences the grievor requests. There is no suggestion, for instance, that experience, or lack thereof, as an acting manager had anything to do with the decision not to fund the MBA. [102]The grievor also points to the fact that he was the only employee at the Commission who has had excess vacation credits cancelled as evidence of general bias against him. He grieved this issue, and had his vacation credits restored, in return for which he signed a Memorandum of Settlement, without prejudice or precedent, which provided that it constituted ?full and final settlement of any and all matters which were or could properly have been raised in the grievance.? This precludes any further comment on the meaning of the underlying facts of that grievance, similar to the situation flowing from the settlement of the grievance dealing with the managerial job he was not awarded. [103]The grievor also states that he is the only Commission employee who has grieved against the employer to this Board, for instance, challenging Ms. Rosser?s decision in the promotion grievance in particular, and that this was part of the motivation for turning down his request for tuition assistance. Such an allegation is not precluded from consideration by the settlements of the grievances, as it is a separate allegation of subsequent reprisal. However, as discussed above, other than timing and the grievor?s belief, there is nothing in the evidence from which I could make a positive finding of reprisal. Given the other factors dealt with above which provide a basis for finding that the decision to deny his request was honestly made for legitimate business reasons, I am not of the view that the evidence concerning his grievances is sufficient to find otherwise. - 40 - [104]The grievor also asserts that he was offered unsolicited buy-out packages, during the competition grievance, and during the Pay Equity complaint. In the latter instance, the grievor said the offer was made outside of mediation, although it was communicated by the contract Review Officer who was being used as a mediator for the Pay Equity complaint. Given the context of ongoing efforts to settle both matters, it is my view that it would be overly technical to find that any offers made fell outside the generally recognized privilege attaching to offers to settle, and I have considered them in this vein. The grievor questioned why the employer did not waive any privilege in the settlement negotiations, since retribution was the ?backbone? of the case as to how he was treated. However, there is no requirement that they do so, and sound policy reasons not to, in order to maintain an environment conducive to settling disputes without the need of litigation. Summary of Decision [105]It is the Board?s finding that the awarding of tuition assistance was a matter within the discretion of the employer, and the evidence is not sufficiently persuasive to warrant a finding that the discretion was exercised arbitrarily, in bad faith or for illegal discriminatory reasons, such as reprisal for the grievor?s role acting as spokesperson for an anonymous group of Review Officers who challenged the government?s pay equity plan or for the filing of grievances. [106]There is no doubt that the employer could have handled the grievor?s request for tuition assistance in a more expeditious and transparent way. Nonetheless, I am not persuaded that the employer?s behaviour breached the grievor?s terms and conditions of employment. Rather, I am convinced by the evidence that his request was considered on its merits, and that there was a rational basis for its refusal, given its size and the fact that it was not a priority in the context of the fiscal situation of the Ministry at the time. Although the evidence is persuasive that Ms. Rosser?s evidence was mistaken as to whether the official freeze on non-crucial training was in place at the time of her - 41 - decision, I am not convinced that this was the result of anything other than the passage of time or a sufficient basis from which to infer bias or bad faith against the grievor. Most importantly, the general idea that there was a very conservative approach to discretionary spending in place at the time was not proven to be inaccurate or not Ms. Rosser?s sincere belief. Given that the evidence does not demonstrate that it is more likely than not that the grievor?s tuition assistance request was denied for reasons which were improperly or dishonestly motivated or maliciously intended, there is insufficient basis on which to interfere with the employer?s decision. [107]In the result, the grievance is dismissed. st Dated at Toronto this 21 day of September 2009. Kathleen G. O?Neil, Vice-Chair