GSB#2013-0520

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Association of Management, Administrative and Professional Crown Employees of Ontario (Sandhu)

Association

• and -

The Crown in Right of Ontario (Ministry of Government Services)

Employer

BEFORE

Nimal Dissanayake

Vice-Chair

FOR THE UNION

James McDonald Sack Goldblatt Mitchell LLP Barristers and Solicitors Counsel

FOR THE EMPLOYER

Stewart McMahon Ministry of Government Services Legal Services Branch Counsel

CONFERENCE CALL

September 15, 2014

Decision

1On September 2, 2014, disputes filed by six individuals came before me for mediation. Following mediation the parties executed a Memorandum of Settlement (“MOS”) resolving all of the disputes, including that filed by Ms. Gabe Sandhu. Under its terms specific provisions addressed each of the six complainants, who in turn withdrew their disputes.

2The portion of the MOS relevant of the present purposes set out at para 5 reads:

With respect to Gabe Sandhu and …, the Employer will reimburse each of the Complainants up to a maximum of five thousand dollars ($5,000) toward educational courses to be mutually agreed upon as between the Complainant and his or her manger on the basis that the courses are relevant to their current role in Supply Chain Ontario or other positions within the OPS as agreed upon as between the Complainant and his or her manager.

3At para. 14, the MOS provides that “The parties agree that Vice-Chair Dissanayake shall remain seized with respect to this agreement”.

4A teleconference was held on an urgent basis to deal with a disagreement between the complainant Ms. Sandhu and Manager, Mr. Wes Lapish. Ms. Sandhu requested approval of a master’s certificate in Public Sector Management at the University of Ontario Institute of Technology. (the master’s course). Mr. Lapish declined approval. I was advised that the master’s course commences on Friday September 19, 2014, that Ms. Sandhu’s application to do the course had been accepted, and that she was required to confirm her enrollment on or before September 17, 2014. She would not have an opportunity to do this course next year because under the terms of the MOS all courses are to be completed no later than December 31, 2015. The parties requested that I issue a decision as soon as possible, even if it is a bottom line decision with reasons to follow. The parties forwarded relevant material to me in advance and made submissions during the teleconference.

5The employer took the position that pursuant to the Board remaining seized, it may intervene only if the Association establishes that the employer had breached the terms of the MOS. It was submitted that the mere fact that Ms. Sandhu and the manager were in disagreement about the appropriateness of the master’s course does not mean that the employer had violated the MOS. Counsel emphasized that any course to be done pursuant to the MOS must be “mutually agreed upon”. Counsel submitted that Mr. Lapish had clearly indicated his preparedness to work with Ms. Sandhu to discuss other courses that may be agreeable to both parties. Thus, it was submitted, it was premature for the Board to intervene. The parties should instead be allowed to discuss further to find a mutually acceptable course for Ms. Sandhu.

6Counsel submitted that Mr. Lapish’s refusal to approve the master’s certificate was in any event not unreasonable. The course is “an intensive 16 day executive program”. The course description states that “It consists of 16 courses for managers and executives with diverse educational backgrounds who are new to, or experienced at working in a public sector/government or related organization”. In her present position. Ms. Sandhu was not a manager nor an executive. The employer would not receive value for the cost of $ 3,900 + HST and the paid time off on 16 days, every other Friday, since she would be taking a course not meant for someone like her.

7Counsel for the Association submitted that the master’s course meets the relevancy criterion in para. 5 of the MOS. He pointed out that it contemplates courses that are relevant to the employee’s current role and position, as well as “other positions within the OPS as agreed upon as between the complainant and his or her manager”. In her three most recent performance development plans, Ms. Sandhu had clearly expressed her goal of progressing to a management position within the OPS. The management positions targeted by her fall within the “other positions” contemplated in the MOS, and the master’s course would at least be clearly relevant to those, if not also in her current position.

8The parties have agreed that I “shall remain seized with respect to this agreement”. That language is very broad. It would obviously include any allegations of a breach of a term of the MOS. However, the parties must also have intended, by having me seized of “this agreement”, that I would have jurisdiction over any disagreement in the implementation of the terms of the MOS. To interpret it as conferring jurisdiction only over alleged breaches would result in absurdity.

9Employer counsel correctly pointed out that the MOS contemplates that the course to be done must be mutually agreed to. Surely, the parties must have intended that in the event the parties are unable to reach agreement, there would be a mechanism to break the impasse. By having the Board remain seized “with respect to this agreement”, they must have intended that the Board would intervene with a ruling to break the deadlock. Otherwise, there would be an impasse with no prospect for a resolution.

10Counsel for the employer submitted that there is no impasse at this stage because Mr. Lapish has indicated his commitment to continue discussions in order to find a mutually acceptable course for Ms. Sandhu. I disagree. While Mr. Lapish was willing to move away from the master’s course and look for other options, the mere fact that Ms. Sandhu has sought a ruling from the Board is a clear indication that she is not prepared to give up on her preferred course and look for other courses. Ms. Sandhu continues to assert that her choice is the appropriate implementation of the MOS for herself. The employer on the other hand continues to take the opposite position, and insists on looking for other courses. In other words, there is an impasse on the implementation of the MOS.

11The MOS was a compromise and a give and take, as most settlements are. The employer’s firm position was that it would not simply make monetary payments to the complainants in return for agreement to withdraw their disputes. It took the position that it must receive value for any monies paid out. The solution arrived at in the MOS was that the employer would pay for a course or courses up to a maximum cost of $ 5000.00 per complainant. However, the courses had to be relevant to the complainants’ current role and position, or other positions with the OPS. All of this was subject to mutual agreement between the complainant and the manager. Unfortunately there has been no agreement between Ms. Sandhu and her manager, and the Board is tasked with resolving the disagreement.

12I have concluded that the course proposed by Ms. Sandhu is a reasonable fit within the contemplation of the MOS. The test, given the discussions and the resulting settlement, is whether the course in question is of value to the employer. To meet that test, the course must be relevant to Ms. Sandhu’s current position or to other positions within the OPS. Given Ms. Sandhu’s stated goal of advancing to the ranks of management and the course content, that test is met. The only grounds advanced by the employer in submitting that it would not receive “value for money” is the statement in the course description that it is for “managers and executives”, a rank presently not held by Ms. Sandhu. There was no assertion that the content of the master’s course was not related to the duties and responsibilities of Ms. Sandhu’s present role or that of management positions within the OPS which she is aspiring to obtain. Despite the statement in the course description that it is for “managers and executives”, as evidenced by the acceptance of Ms. Sandhu’s application for enrollment, the Institute has deemed her qualified to do the course. I am not at all convinced that because Ms. Sandhu would be learning skills and knowledge at a higher level intended for individuals currently working as manager or executive, it would not result in any benefit to the employer.

13In the result, the Board rules that the master’s course proposed by Ms. Sandhu is within the contemplation of, and meets the terms of the MOS. The employer is directed to approve that course.