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Home My WebLink About2002-2183.Anderson.03-09-30 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2183/02 UNION# 2002-0712-0002 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Anderson) Grievor - and - The Crown In RIght of Ontano (Mimstry of Natural Resources) Employer BEFORE S L Stewart Chair FOR THE UNION Mark Barclay Gnevance Officer Ontano PublIc ServIce Employees Umon FOR THE EMPLOYER Tracy Demal Staff RelatIOns Officer Mimstry of Natural Resources WRITTEN July 15 2003 SUBMISSIONS 2 DeCISIon The gnevance before me IS dated August 16 2002 and was filed on behalf ofMr D Anderson. Mr Anderson has been an employee of the Mimstry of Natural Resources SInce 1973 and SInce 1998 has held the posItIOn of Management Forester The gnevance seeks reImbursement for an applIcatIOn fee and dues paid to the Ontano ProfessIOnal Foresters AssocIatIOn. ThIS matter was dealt wIth In ItS entIrety In wntIng, whIch proved to be an expedItIOus manner of proceedIng In thIS Instance The partIes are to be commended for theIr efforts In seekIng such efficIencIes In bnngIng theIr dIsputes to resolutIOn. The Employer has advanced three prelImInary ObjectIOns to the gnevance These relate to tImelIness, the nature of the gnevance (an IndIVIdual gnevance as opposed to a polIcy gnevance) and that the gnevance alleges no vIOlatIOn of a specIfic provIsIOn of the CollectIve Agreement. UltImately It IS my conclusIOn that the gnevance must be dIsmIssed and thus, whether or not thIS thIrd ObjectIOn IS properly charactenzed as a prelImInary Issue gIven my conclusIOn In thIS regard there IS no need to address It on a prelImInary basIs or to address the two other prelImInary Issues raised. EffectIve Apnl 1 2000 the ProfessIOnal Foresters Act, 2000, Imposed a reqUIrement that all practItIOners of professIOnal forestry In Ontano be lIcensed and establIshed the Ontano ProfessIOnal Foresters AssocIatIOn (OPF A) as the body responsIble for lIcensIng professIOnal foresters ThIS reqUIrement was Imposed on professIOnal foresters both In the 3 pnvate and publIc sectors Pnor to the enactment of thIS legIslatIOn OPF A membershIp was voluntary By memorandum dated July 5 2001 sIgned by Mr W.D Baker ActIng DIrector Forest Management Branch, Mr Anderson was advIsed of the new legIslatIve reqUIrement regardIng lIcensIng and that "Based upon the Mimstry of Natural Resources (MNR's) evaluatIOn of your practIce, we belIeve that thIS Act IS applIcable to your posItIOn In the MNR. " Mr Anderson applIed for and obtaIned assocIate membershIp In the OPF A, InCUrrIng an applIcatIOn fee of $14000 and a dues fee of $12250 for the balance of the year for a total of $262 50 Mr Anderson made a wntten request for reImbursement of these fees In a memorandum dated July 12,2002, a request whIch Includes reference to an MBS polIcy dated October 1977 entItled "Travel Management and General Expenses" whereIn, at p 26 It IS stated that "Payment of membershIp fees may be authonzed when membershIp In an orgamzatIOn IS beneficIal to the mImstry " and askIng for confirmatIOn that membershIp was In fact a reqUIrement of hIS posItIOn. Mr Anderson was not reImbursed and a gnevance was filed, proceedIng to Stage 2 on November 25 2002 In denYIng the gnevance In an emaIl dated December 6 2002, Mr K. Broughton noted Mr Anderson's supervIsor's confirmatIOn that membershIp was a reqUIrement of the posItIOn but that "the Mimstry does not [emphasIs In the ongInal] pay for fees/dues when certIficatIOn, desIgnatIOn or membershI p are reqUIrements of the professIOn" There are a number of bases upon whIch the Umon challenges the rejectIOn ofMr Anderson's claim for reImbursement. It IS argued that If professIOnal membershIp wIth assocIated costs IS a condItIOn of employment, the Employer IS compelled to assume those costs I am unable to accept thIS submIssIOn. The CollectIve Agreement sets out the terms 4 and condItIOns of employment, IncludIng, In some Instances, reImbursement provIsIOns Where there IS no specIfic provIsIOn In thIS regard such an oblIgatIOn cannot, as a general rule, be Imposed by an arbItrator It IS also noted by Mr Barclay that the Employer does reImburse Law SocIety fees for ItS employees who engage In the practIce of law as employees of the OPS and thus that ItS ratIOnale for demal ofMr Anderson's fees IS factually Incorrect. As Ms Demal pOInts out In her submIssIOns, however there IS a specIfic provIsIOn In the CollectIve Agreement between the Employer and ALOC whIch compels reImbursement. AccordIngly I am unable to accept thIS basIs upon whIch the decIsIOn IS challenged as compellIng the conclusIOn that there IS a reqUIrement to payor that there IS a fundamental flaw In the manner In whIch the Employer has dealt wIth thIS matter Mr Barclay further argues that membershIp In the AssocIatIOn IS properly vIewed as "beneficIal to the Mimstry" as contemplated by the polIcy referred to In that regard he referred to the 2002-2003 Mimstry of Natural Resources BusIness Plan whereIn ItS goals are outlIned and suggested that the standards embraced by the OFP A could only enhance those goals He noted further that the Employer's Interests In such professIOnal accredItatIOn were eVIdenced by the mandatory statutory reqUIrement that It be obtaIned. WhIle the valIdIty ofMr Barclay's submIssIOn In thIS regard IS apparent, we are dealIng wIth a sItuatIOn where the Employer has dIscretIOn whether or not to reImburse In hIS reply submIssIOns Mr Barclay referred to Mimstry of TransportatIOn and OPSEU (Kuyntles) 513/84 (Venty) In support of the proposItIOn that there was not a proper exerCIse of dIscretIOn In thIS Instance and that "the Mimstry ngIdly adhered to what they belIeved Management Board polIcy to be" In denYIng the request. There IS no need to deal wIth the Employer's posItIOn that thIS IS an argument that must be rejected on the basIs that It was raised for the first tIme In reply as It IS my VIew that thIS argument cannot succeed on ItS ments The background facts are revIewed In the response to the gnevance and Mr Anderson's basIc posItIOn IS outlIned. I do not VIew the 5 response as an IndIcatIOn of a blInd adherence to a mIsapprehended polIcy as Mr Barclay has suggested In hIS submIssIOns Reference IS made to the Travel and General Expenses GUIdelInes and whIle reference IS also made to what the Mimstry "does not do" I VIew thIS as a reference to past practIce WIthIn thIS Mimstry somethIng that wIll InevItably form the background for consIderatIOn of a matter WhIle, as Mr Barclay emphasIzed, the mandatory oblIgatIOn for a Forester In Mr Anderson's posItIOn to be a member of the OPFA was a matter of relatIvely recent hIStOry and thus thIS aspect of the matter dIfferentIates thIS sItuatIOn from the general practIce of not paYIng such fees, thIS was a matter that was wIthIn the knowledge of the decIsIOn maker Indeed, thIS matter was specIfically clanfied by Mr Anderson's supervIsor at the meetIng and IS referenced In the decIsIOn. The Issue IS whether a basIs upon whIch the exerCIse of dIscretIOn In thIS Instance can be Impugned has been establIshed. It IS my conclusIOn that such a basIs has not been establIshed and, accordIngly the gnevance IS dIsmIssed. Dated at Toronto thIS 30th day of September 2003 ~:\ "'," , . < ,.' . ,.' . . , " . . - . , . , ._, - ~ , - -,' ,'.' ~ . ~ . ,",. - "', : -.:::.... .:. . ..,. .~ . . ' =n S.L Stewart - Chair