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Home My WebLink About2019-1524.Germotte.23-08-09 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 GSB# 2019-1524; 2020-0675; 2020-0935 UNION# 2019-0411-0006; 2020-0999-0007; 2020-0229-0012 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Germotte) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Brian McLean Arbitrator FOR THE UNION Ed Holmes Ryder Wright Holmes Bryden Nam LLP Counsel FOR THE EMPLOYER George Parris Treasury Board Secretariat Legal Services Branch Counsel HEARING February 14 and July 28, 2023 - 2 - Decision [1] There are three grievances before me. Grievance numbers 2019-1524 and 2020- 0935 are individual grievances filed by Richelle Germotte and Harpreet Khaira respectively while Grievance number 2020-0675 is a Union grievance. This decision determines the individual grievances. [2] The Grievors are nurses who work in correctional institutions. They each asked to be paid an additional sum (an allowance) under the collective agreement to recognize that they have or obtained a degree in nursing science. They both were denied payment of the allowance and grieved the Employer’s decision. The Union also filed the Union grievance regarding the same issue. The parties were unable to resolve the grievances in the grievance procedure and they were referred to me. This decision determines the two individual grievances. The Facts [3] Three nursing allowances, N 1, N 2 and N 3 are contained in the General Notes and Allowances section of the collective agreement between the parties. These provisions have been a feature of the collective agreement for many years. The grievors are seeking the N3 allowance in recognition of their degree. The provisions of the collective agreement that are relevant in this case are as follows: N 3 An allowance of one thousand and ten dollars ($1,010.00) per annum in addition to each listed rate in the salary range may be paid for successful completion of a degree in nursing science from a university of recognized standing to an employee in a position classified as: Nurse 2 & 3 General $19.36/week … All N salary allowances are subject to the following conditions: a) the qualification is not a mandatory requirement for entry to the classification; b) the qualification is deemed to be useful in the execution of the employee’s duties (i.e. is job related); c) the application of the allowance is at the discretion of management; and d) only one allowance may be paid at one time - 3 - [4] There is no dispute that the Employer has the discretion whether to grant the allowance or not. In Ontario Public Service Employees Union and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) (Taylor et al) GSB (May 2014) [Petryshen] the Vice Chair described the process the Employer must go through in assessing a claim for the N3 allowance. In doing so, Vice Chair Petryshen relied on OPSEU (Kuyntjes) and Ministry of Transportation and Communications [1985] GSB No. 513/84 (Verity), about which he stated: “the Vice-Chair [Verity] describes at page 16 the kind of considerations arbitrators take into account when assessing whether there has been a proper exercise of discretion as follows: In cases involving the exercise of managerial discretion, Boards of Arbitration generally hesitate to substitute their view for that of the decisionmaker, which is a recognition of the fact that Boards have less familiarity than does the Employer with the exigencies of the workplace. However, Arbitrators must ensure that decisions are made within the confines of certain minimum standards of administrative justice. Those administrative law concepts relating to the proper exercise of discretion include the following considerations: 1) The decision must be made in good faith and without discrimination. 2) It must be a genuine exercise of discretionary power, as opposed to rigid policy adherence. 3) Consideration must be given to the merits of the individual application. 4) All relevant facts must be considered and conversely irrelevant considerations must be rejected.” [5] In the case before me, while the Employer does not agree that the criteria set out in N3 were met, it does concede that it did not consider those criteria and therefore that it failed to appropriately exercise its discretion. Accordingly, the individual grievances must be allowed. [6] The remedy for a failure to properly exercise discretion is also discussed by Vice - Chair Petryshen in Taylor. He stated: [11] In considering an appropriate remedy, I am mindful that the grievors are not entitled as of right to the N 3 nursing allowance and that the breach here concerns how the Employer exercised its discretion. A proper exercise of management’s discretion may have resulted in the grievors being denied the nursing allowance. I therefore find it appropriate to refer - 4 - the requests of the grievors for the N 3 nursing allowance back to the Employer in order that it can exercise its discretion properly, in light of the guidelines referenced previously. [7] I agree with Arbitrator Petryshen’s analysis. Accordingly, I find it appropriate to refer the requests of the grievors for the N3 nursing allowance back to the Employer in order that it can exercise its discretion properly. [8] Under the circumstances the Union grievance is adjourned sine die. Dated at Toronto, Ontario this 9th day of August 2023. “Brian McLean” _____________________ Brian McLean, Arbitrator