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HomeMy WebLinkAbout2013-1201.Nikkila et al.15-04-21 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2013-1201, 2013-1202, 2013-1203 UNION#2013-0701-0005, 2013-0701-0006, 2013-0701-0007 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Nikkila et al) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Bram Herlich Vice-Chair FOR THE UNION Alison-Nielsen Jones Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER George Parris Treasury Board Secretariat Legal Services Branch Counsel HEARING April 16, 2015 Decision [1] There are three grievances before me for determination. The hearing was conducted pursuant to the expedited arbitration process set out in Article 22.16 of the collective agreement. In this process the arbitration proceeding is streamlined in the interests of expedition. Further, the results of this decision, while binding and final in the instant case, are without precedential value. And the parties have also agreed, again in the interests of expedition, that I issue a summary decision without elaborate reasons. [2] The case involves similar claims by each of the grievors. Each of them sought employer support for certain training opportunities. There is no dispute that the training sought, while not mandatory or required by the employer, was relevant to the jobs of the individual grievors. In each case, the employer facilitated the training sought by releasing the grievors from their normal duties and by continuing to pay the grievors as if they were at work during the training period. However, as the training was provided in each case by a third party entity, there were some costs or fees associated with the training provided. The employer denied the grievor’s requests to pay for the cost of the training. The costs were relatively minor: $50 in each of two of the three cases and $113 in the third. The grievances seek to recover those costs. The case was argued on the basis of the following agreed facts: 1. Leona Nikkila, one (1) of the Grievors, has been employed by the Ontario Public Service (OPS) since January 1986. 2. Tanja Aro, one (1) of the Grievors has been employed by the Ontario Public Service (OPS) since July 1999. 3. Sheila Robertson, one (1) of the Grievors, has been employed by the Ontario Public Service (OPS) since October 1986. 4. All three (3) Grievors work as Probation and Parole Officers (PPOs) in the Ministry of Community Safety and Correctional Services’ (MCSCS) Thunder Bay Probation and Parole office. 5. At all times relevant to the grievances, the Grievors reported to Area Manager Dennis Porlier. 6. In the spring of 2013, all three (3) Grievors, on separate occasions, approached Mr. Porlier to request that the Employer agree to allow them to attend certain trainings on work time and paid for by the Employer. - 2 - 7. Ms. Nikkila and Ms. Robertson requested that the Employer approve their attendance at a one-day MCSCS Ontario Gang Investigators Association (OGIA) conference in Thunder Bay on May 30, 2013, at a cost of $50.00 each for the training. 8. Ms. Aro requested that the Employer approve her attendance at a one-day training conducted by Dr. Gabor Maté (“The Biology of Loss”) on May 9, 2013, at a cost of $113.00 dollars for the training. 9. Mr. Porlier advised the Grievors that the Employer would not pay for training that incurred costs external to the Ministry and that he had consulted Regional Office prior to so advising the Grievors. The Regional Director, Mary-Jo Knappett, supported Mr. Porlier’s decision. 10. The Employer did agree to allow all three Grievors to attend the trainings on work time. 11. All three (3) Grievors paid for the trainings themselves. 12. Mr. Porlier did not consider the Grievors’ Performance Development and Learning Plans (PDLPs) when coming to his decisions. Mr. Porlier considered only the cost implications of the request when coming to his decisions. 13. On May 2, 2013, the matter of training was raised at the Regional Employee Relations Committee (RERC). The positions of the Employer and the Union are as set out in minutes attached hereto. 14. On May 15, 2013, Ms. Nikkila filed her grievance. 15. On May 29, 2013, Ms. Aro and Ms. Robertson filed their grievances. [3] The grievances assert violations of Articles 2 (Management Rights) and 3 (discrimination). The latter claim was not pursued before me. [4] With the exception of the management rights clause, there is nothing in the collective agreement that adverts to training. There is certainly no employee right to training set out in the collective agreement (either as a positive entitlement or even providing access to a right subject to the employer’s discretion). The management rights clause reads, in part, as follows: …the right and authority to manage the business and direct the workforce, including the right to…determine…training and development…shall be vested exclusively in the Employer. It is agreed that these rights are subject only to the - 3 - provisions of this Central Collective Agreement and any other Collective Agreement to which the parties are subject. [5] Thus, the case at hand must stand or fall on the manner in which the exercise of a pure management right, i.e. one that is in no way constrained by any other provision of the collective agreement, is to be reviewed by this Board. [6] The employer asserts before me that it may not even be legally required to act in good faith in the exercise of its management rights. While there may be some authority for this proposition (one which some may consider surprising) in this Board’s caselaw, it is not necessary for me to assess this proposition further, as no bad faith was alleged in the instant case. And, indeed, even if the exercise of the employer’s management rights can be held to a standard of reasonableness (a proposition which is less than evident), I would be satisfied that the employer’s decisions in these cases would survive scrutiny on that basis. The grievors’ requests were not fully denied, they were provided with time away from the workplace and were paid for the time they spent in their training sessions. Whether or not the employer’s reluctance to pay extra marginal costs might (as a recent decision on very similar facts has suggested) be described as surprising does not render it unreasonable. Whether I, standing in the shoes of the employer, might have come to a different result is of no moment, even if the decision is subject to review on a standard of reasonableness. The grievors’ requests for training were, in large part, accommodated. Asking them to shoulder the minimal training costs while being paid for their training time does not strike me as unreasonable, where the collective agreement provides no right to this type of training. [7] Of course, the union did not argue this case on the basis of a reasonableness standard. Rather, it argued that the employer’s decision, particularly since it was said to have acted on the basis of the rigid application of a policy precluding the payment of external training costs, constituted an improper exercise of its discretion. In my view, however, casting the issue as one that involves the review of managerial discretion is not the correct analytical approach. The case turns rather on whether, and if so, how the exercise of a pure management right, unconstrained by any provision of the collective agreement is to be reviewed by this Board. - 4 - [8] I have reviewed the decision of Vice-Chair Watters in the case of Friday GSB File No. 2013-1200, December 22, 2014. This is the case referred to earlier. It involved the same Ministry, location and office. The issue is on all fours with the present grievances. And while Vice-Chair Watters’ award is not binding upon me (given that it, too, issued in the context of Article 22.16), I find its logic to be persuasive. He observed (at paragraph 9): I accept that there is no provision in the collective agreement which entitles employees to receive access to training and developmental opportunities. As a consequence, the right to make decisions around training and development is vested exclusively in the Employer pursuant to its management rights set out in article 2 of the collective agreement. As there is no allegation that some other provision of the collective agreement was violated or adversely affected in this instance, or that the Employer acted in bad faith, its determination on the grievor’s application for training is not reviewable by the Grievance Settlement Board. [9] Having regard to the foregoing, the instant grievances are dismissed. Dated at Toronto, Ontario this 21st day of April 2015. Bram Herlich, Vice-Chair