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

Ontario Public Service Employees Union (Anderson)

Grievor

• and -

The Crown in Right of Ontario (Ministry of Natural Resources)

Employer

BEFORE

S. L. Stewart

Chair

FOR THE UNION

Mark Barclay Grievance Officer Ontario Public Service Employees Union

FOR THE EMPLOYER

Tracy Demal Staff Relations Officer Ministry of Natural Resources

WRITTEN SUBMISSIONS

July 15, 2003.

Decision

The grievance before me is dated August 16, 2002 and was filed on behalf of Mr. D. Anderson. Mr. Anderson has been an employee of the Ministry of Natural Resources since 1973 and since 1998 has held the position of Management Forester. The grievance seeks reimbursement for an application fee and dues paid to the Ontario Professional Foresters Association. This matter was dealt with in its entirety in writing, 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 bringing their disputes to resolution.

The Employer has advanced three preliminary objections to the grievance. These relate to timeliness, the nature of the grievance, (an individual grievance as opposed to a policy grievance) and that the grievance alleges no violation of a specific provision of the Collective Agreement. Ultimately, it is my conclusion that the grievance must be dismissed and thus, whether or not this third objection is properly characterized 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 April 1, 2000, the Professional Foresters Act, 2000, imposed a requirement that all practitioners of professional forestry in Ontario be licensed and established the Ontario Professional Foresters Association (OPFA) as the body responsible for licensing professional foresters. This requirement was imposed on professional foresters both in the private and public sectors. Prior to the enactment of this legislation OPFA 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 Ministry 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 OPFA, incurring an application fee of $140.00 and a dues fee of $122.50 for the balance of the year, for a total of $262.50. Mr. Anderson made a written 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 authorized when membership in an organization is beneficial to the ministry…” and asking for confirmation that membership was in fact a requirement of his position. Mr. Anderson was not reimbursed and a grievance was filed, proceeding to Stage 2 on November 25, 2002. In denying the grievance 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 Ministry does not [emphasis in the original] pay for fees/dues when certification, designation or membership are requirements of the profession”.

There are a number of bases upon which the Union challenges the rejection of Mr. 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 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 denial of Mr. 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 pay or 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 Ministry” as contemplated by the policy referred to. In that regard he referred to the 2002-2003 Ministry of Natural Resources Business Plan wherein its goals are outlined and suggested that the standards embraced by the OFPA 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 of Mr. 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 Ministry of Transportation and OPSEU (Kuyntjes) 513/84 (Verity) in support of the proposition that there was not a proper exercise of discretion in this instance and that “the Ministry rigidly 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 merits. The background facts are reviewed in the response to the grievance and Mr. Anderson’s basic position is outlined. I do not view the 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 Ministry “does not do” I view this as a reference to past practice within this Ministry, 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 clarified 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 grievance is dismissed.

Dated at Toronto, this 30th day of September, 2003