GSB#2013-1200, 2013-3468

UNION#2013-0701-0004, 2013-0701-0016

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Friday)

Union

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Michael V. Watters

Vice-Chair

FOR THE UNION

Alison-Nielsen-Jones Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Brian Scott Treasury Board Secretariat Centre for Employee Relations Employee Relations Advisor

HEARING

December 17, 2014

Decision

1This proceeding was conducted pursuant to the expedited procedure set out in article 22.16 of the collective agreement. The parties agree that this Decision is not to have precedential value.

2At the hearing, the parties filed the following Agreed Statement of Facts:

“1. Barbara Friday, the Grievor, has been employed by the Ministry of Community Safety and Correctional Services (MCSCS) since January 4, 1982, over thirty (30) years.

2. The Grievor works as a Probation and Parole Officer (PPO) in MCSCS’ Thunder Bay Probation and Parole Office.

3. At all times relevant to this grievance, the Grievor reported to Area Manager Dennis Porlier.

4. From time-to-time during her career in the Ontario Public Service (OPS), the Grievor and her manager have completed Performance Development and Learning Plans (PDLPs) for the Grievor.

5. Pursuant to the PDLP process, the Grievor and/or her manager identified areas of interest for the Grievor, and identified potential areas of training in order to meet the Grievor’s goals.

6. One (1) such area of interest for the Grievor has been issues related to gangs and/or gang violence.

7. Accordingly, when the Grievor learned that the MCSCS would be Hosting the Ontario Gang Investigators Association (OGIA) conference in Thunder Bay (her location) on May 30, 2013, the Grievor approached Mr. Porlier to request the approval from her Employer to attend this one (1) day conference at a cost of $50.00 to the Employer.

8. Mr. Porlier advised the Grievor that the Employer would not approve training that incurred costs external to the Ministry and that he had consulted Regional Office prior to so advising the Grievor. The Regional Director, Mary-Jo Knappett, supported Mr. Porlier’s decision. Mr. Porlier did not consider the Grievor’s PDLP when coming to this decision. Mr. Porlier considered only the cost implications of the request when coming on his decision.

9. 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 the minutes attached hereto.

10. At or around the same time, the Employer made similar representations to other PPOs, namely Leona Nikkila, Tanja Aro and Sheila Robertson, denying them payment for other trainings.

11. On May 29, 2013, the Grievor filed this grievance.”

3No oral evidence was presented at the hearing. Rather, the case was argued on the basis of the Agreed Statement of Facts and the authorities relied on.

4From the Union’s perspective, the Employer denied the grievor’s request for training as it was unwilling to incur costs external to the Ministry in respect of non-mandatory training. It is the Union’s position that the decision represented an improper exercise of management discretion for the following reasons:

(i) the denial was not a genuine exercise of discretionary power but, instead, reflected adherence to a rigid unwritten policy;

(ii) the Employer failed to consider the merits of the grievor’s application, as evidenced by the fact it did not take into account her prior PDLPs which identified the area of interest addressed by the requested training; and

(iii) all relevant factors were not considered, as the Employer restricted its consideration to the matter of cost.

5By way of remedy, the Union asks for a declaration that the Employer improperly exercised its discretion in denying the grievor the opportunity to participate in the training. It further asks that the Employer be directed to properly exercise its discretion going forward.

6The Union relies on the following authorities in support of its position: OPSEU (Kuyntjes) and Ministry of Transportation and Communications (1985), GSB No. 513/84 (Verity); and OPSEU (Taylor et al.) and Ministry of Community Safety and Correctional Services (2014), GSB No. 2012-2926 et al. (Petryshen).

7In response, the Employer’s representative noted that there is no express provision in the collective agreement which entitles employees to receive access to training and developmental opportunities. Put another way, the collective agreement is silent on the issue. It is the position of the Employer that, when viewed in this context, management has the exclusive right to make decisions concerning training pursuant to article 2 of the collective agreement and that the exercise of discretion under the provision is not reviewable unless some other contractual provision is violated or adversely affected. The Employer asks that the grievance, accordingly, be dismissed.

8The Employer relies on the following authorities in support of its position: OPSEU (May et al.) and Ministry of Community Safety and Correctional Services (2007), GSB No. 2001-1151 (Abramsky); OPSEU (Cherwonogrodzky et al.) and Ministry of Finance (2004), GSB No. 2002-0994 et al. (Gray); and OPSEU (Young et al./Group Grievance) and Ministry of the Attorney General (2002), GSB Nos. 1455/00, 1456/00 (Abramsky).

9I 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. In so finding, I accept the reasoning expressed in the authorities provided by the Employer. I note that in the authorities provided by the Union, there were other provisions of the collective agreement which related to and affected management’s exercise of discretion.

10As recognized in the jurisprudence, in cases involving the exercise of managerial discretion, arbitrators are generally hesitant to substitute their own view for that of the decision-maker. This is due to the fact that they “have less familiarity than does the Employer with the exigencies of the work place” (Kuyntjes, page 16). Nevertheless, this Vice-Chair does find it somewhat surprising that the Employer declined to offer the training requested by the grievor. The cost thereof was minimal and it was to be delivered in Thunder Bay, the grievor’s work location. Additionally, the topic of the training had been previously identified as an area of interest during the PDLP process involving both the grievor and her manager.

11For all of the above reasons, the grievance is dismissed.