GSB# 2022-10589

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 (Salewski)

Association

• and -

The Crown in Right of Ontario (Ministry of Environment, Conservation and Parks)

Employer

BEFORE

Diane L. Gee

Arbitrator

FOR THE ASSOCIATION

Nadine Blum Goldblatt Partners LLP Counsel

FOR THE EMPLOYER

Braden MacLean Treasury Board Secretariat Legal Services Branch Counsel

HEARINGS

November 9, 2023; January 23 and October 9, 2024

Decision

Introduction

1This matter is a dispute brought by AMAPCEO on behalf of Mr. Salewski alleging a breach of articles 3 and 47.1 of the Collective Agreement. Article 3 is the management rights clause. Article 47.1 of the Collective Agreement provides, in part, alternative work arrangements (“AWA”) may be entered into by mutual agreement between an employee and their manager. Amongst the alternative work arrangements contemplated in Article 47.1 is “telecommuting/telework,” referred to herein as “working from home.” Article 47.1 provides in part: “In considering any AWA, the manager will consider, in good faith, both the employee’s request and the operational viability of the work site.”

2Mr. Salewski made a request for an alternative work arrangement (“AWA”) to work from home three days a week. This request was denied by his manager, Valerie Capalbo. Mr. Salewski then made a request for an AWA to work from home four days a week. This request was also denied by Ms. Capalbo. The instant dispute was then filed in which Mr. Salewski seeks approval of an AWA to work from home four days a week and any other redress to make him whole.

3This dispute is one of many that have been filed by AMAPCEO concerning the denial of AWA requests by managers after the issuance of two memoranda by Michelle E. DiEmanuele, Secretary of Cabinet (“SoC”) on March 1 and March 16, 2022. The memos were written following the pandemic during which many employees had been directed to work exclusively from home. The two SoC memos were written to all Ontario Public Service (“OPS”) staff informing them that they would be expected to be in the office three days a week as of April 4, 2022, later extended to May 16, 2022. AMAPCEO asserts that, following the two SoC memos, Ms. Capalbo denied Mr. Salewski’s request to work from home without considering, in good faith, both Mr. Salewski’s request and the operational viability of the work site.

4After the hearing of this matter began, but before closing argument was made, the GSB released two decisions dealing with the interplay of Article 47.1 and the two SoC memos. AMAPCEO (Roffey et al) and Ontario (Ministry of Children, Community and Social Services) (Anderson) 2024 CanLII 8294 (ON GSB) was released on January 8, 2024, and AMAPCEO (Wildman) v Ontario (Natural Resources and Forestry), 2024 CanLII 62891 (ON GSB) (Beatty) was released on June 27, 2024. It was determined in both decisions that, where the two SoC memos are interpreted and applied as a prohibition on a manager granting an AWA that includes more than two days of work from home each week and, on that basis, an employee’s request for an AWA is denied, Article 47.1 has been violated.

5In addition, following the close of evidence in this matter but before closing argument, Ms. Capalbo retired, and a new manager took her place. Mr. Salewski made a new request for an AWA that would permit him to work from home three days a week. This AWA request was granted by Mr. Salewski’s new manager. The Employer argues, the fact that Mr. Salewski now has an AWA to work from home three days a week, renders the instant dispute moot.

Issues to be Determined

6There are two issues before the Board for determination. First, is the matter moot? Second, if it is not moot, did Ms. Capalbo consider, in good faith, both Mr. Salewski’s request and the operational viability of the work site?

(i) Is the Issue Moot?

7Both parties made thorough submissions on whether the dispute is moot. I have abbreviated them considerably.

8The Employer submits that because Mr. Salewski’s initial request was for an AWA to work three days a week from home, and he has now been granted such an AWA, there is no longer a live issue between the parties and this proceeding has become an exercise in answering the purely academic question of whether a now retired manager properly considered Mr. Salewski’s individual circumstances when denying him an AWA back in 2022. The Employer submits that, even if AMAPCEO is successful, the Board would not order the Employer to grant Mr. Salewski an AWA that would permit him to work from home four days a week. The Employer argues that in both Roffey and Wildman, supra, where the Employer was found to have violated Article 47.1, the Board did not order the Employer to approve the AWA request or order the Employer to pay compensation.

9The Employer relies on: Borowski v. Canada (AG), 1989 CanLII 123 (SCC) OPSEU (Union) v. Ontario (ORC-MBS), GSB No. 1997-2024 (Abramsky); OPSEU (Union) v. Ontario (MCSCS), 2010 CanLII 52643 (ON GSB); OPSEU (Coelho) v. Ontario (MCYS), 2014 CanLII 30245 (ON GSB) (Lynk); OPSEU (Hay) v. Ontario (LCBO), 2019 CanLII 65191 (ON GSB) (Nairn); Hilltop Manor Cambridge v. SEIU Local 1, 2018 CarswellOnt 13157, 295 L.A.C. (4th) 17 (Luborsky); Domtar v. IWAW, 2005 CarswellOnt 11056, 80 C.L.A.S. 223 (Barrett); Welland (County) v. OECTA, 1992 CanLII 14552 (ON LA), 1992 CarswellOnt 1276, 30 L.A.C. (4th) 353 (Brunner).

10AMAPCEO submits that the dispute is not moot. Amongst the submissions made on behalf of AMAPCEO is the argument that, by way of remedy in this dispute, Mr. Salewski seeks approval of an AWA that would permit him to work from home, not three days as he is currently doing, but four days as requested and denied immediately prior to the filing of the dispute. In addition, Mr. Salewski seeks compensation for his losses. AMAPCEO argues, the intervening event that the Employer relies upon to argue the dispute is moot, does not address all aspects of the remedy being requested. AMAPCEO relies on: Canadian Labour Arbitration, 5th edition, paragraph 2.80; Hilltop Manor Cambridge and SEIU, Local 1 (Rai Coordinator), 2018 CarswellOnt 13157 (Luborsky); EFTO and Trillium Lakelands District School Board, Re, 2017 CarswellOnt 20066 (Wacyk); Waterloo (Regional Municipality) v. C.U.P.E., Local 1883, 2008 CarswellOnt 4864 (Luborsky); Ontario Public Service Employees Union (Dubuc) v Ontario (Ministry of Community Safety and Correctional Services), 2011 CanLII 49511 (ON GSB) (Abramsky); St. Joseph’s Healthcare Hamilton and CUPE, Local 786, Re, 2017 CarswellOnt 1527; Ontario Public Service Employees Union (Coelho) v Ontario (Children and Youth Services), 2014 CanLII 30245 (ON GSB) (Lynk).

11The intervening event the Employer relies upon to argue this dispute is moot is that Mr. Salewski now has an AWA to work from home three days a week. Mr. Salewski’s dispute was filed after he requested and was denied an AWA to work from home four days a week. He seeks by way of remedy an AWA permitting him to work from home four days a week and compensation for any losses.

12In Hilltop Manor Cambridge, supra, following a review of the arbitral jurisprudence on mootness, arbitrator Luborsky provided the following summary of key principles:

45 Therefore distilling the foregoing review of the jurisprudence in determining whether a live controversy has been extinguished as a result of intervening circumstances rendering a grievance moot, or if arbitral discretion should be exercised to hear the grievance even if moot, the following key principles may be identified:

(i) The starting point in assessing whether a grievance is moot at the first step in the two-step analysis described in Borowski, supra, is to delineate the scope of the grievance, considering its breadth or narrowness, to identify the specific issues in dispute from the wording of the grievance itself, and in that context the determination of whether subsequent events have rendered a grievance moot turns entirely on the subject matter of the grievance;

(ii) Viewed from the perspective of a continuing union-management relationship, once a systemic issue is raised by a particular grievor it doesn’t disappear due to a change in that particular person’s circumstances;

(iii) In order to satisfy the “live controversy test” it is not necessary for all aspects of the grievance to remain in issue after the intervening event; rather it is sufficient if only one portion or part of the grievance remains outstanding;

(iv) Thus, if the intervening or subsequent events do not address all of the aspects of the remedy being requested, the grievance will not be considered moot;

(v) And where an issue underlying a grievance is not moot, the matter of lack of remedy, in and of itself, does not render the issue moot, but the successful party would be entitled to declaratory relief which is in itself a tangible benefit;

(vi) However, even where the specific relief requested in a grievance is no longer sought or available because of intervening events and is in that sense moot, it may nevertheless be appropriate under step two of the Borowski analysis to exercise arbitral discretion to continue hearing the dispute where there may be “collateral consequences of the outcome” that will provide the necessary adversarial context, touching on a number of circumstances consistent with fostering good labour relations between parties for their prospective guidance.

[emphasis added]

13The fact that Mr. Salewski now has an AWA to work from home three days a week does not address all aspects of the remedy being requested. The Employer argues that, according to the decisions of the Board in Roffey and Wildman, if a violation of Article 47.1 is found, the remedy will not be an order that Mr. Salewski be given an AWA to work from home four days a week and thus the remedy requested would not be granted. However, in Wildman, the Board ordered the Employer to reconsider the request for an AWA consistent with the Collective Agreement and the decision. If this Board were to find the Employer violated Article 47.1, and remit Mr. Salewski’s request for an AWA that permitted him to work from home four days a week back to the Employer to be reconsidered, there exists a possibility Mr. Salewski may achieve a more favourable result than currently exists. In addition, AMAPCEO may advance an argument that Mr. Salewski is entitled to damages, an argument that has not yet been determined by the Board. In this context, I find there to be a purposive industrial relations reason to proceed to the merits.

(ii) The Merits of the Dispute

14As set out above, the dispute alleges a violation of article 47.1. Article 47.1 states:

The OPS supports flexible work arrangements and building a flexible work culture demonstrating flexibility in when, where, and how people work. The purpose of the flexible arrangements is to respond to changing workplace expectations of employees of all ages, boost employee engagement and retain high-performing employees and demonstrate the Employer commitment to being a modern Employer.

Alternative Work Arrangements (AWAs) may include but are not limited to: compressed work week, flexible hours with fluctuating start and end times, job sharing, pre-retirement part-time employment, and telecommuting/telework. AWAs may be entered into by mutual agreement between an employee and their manager. In considering any AWA, the manager will consider, in good faith, both the employee’s request and the operational viability of the AWA for the work site.

15As in Wildman, supra, the outcome of this dispute rests on the Board’s determination of the facts. Accordingly, I turn to a review of the relevant evidence.

16Both Mr. Salewski and Ms. Capalbo testified. Numerous documents were entered into evidence.

17Mr. Salewski is a Certification Officer in the Certification and Licensing Program office in the Ministry of Conservation and Parks. He has been a member of the OPS for 37 years. He has been in the role of Certification Officer for 21 years. His home office is located at 40 St. Clair West, Toronto, a 45-minute bus and subway ride from his home. Mr. Salewski had a formal AWA in place for about five years prior to the pandemic during which he worked from home two days a week.

18When the pandemic hit, Mr. Salewski was directed to work exclusively from home. Since being ordered back to the office in the spring of 2022, Mr. Salewski generally goes into the office at 40 St. Clair West Mondays and Fridays. On Thursdays, Mr. Salewski participates in the MECP Hotelling Pilot, created at the same time the SoC memos came out, which permits him to work out of a satellite office closer to his home and have the day counted as his third in-office day. Mr. Salewski’s participation in this pilot was approved by Ms. Capalbo and he started working one day a week from the satellite office on May 24, 2022.

19Ms. Capalbo is a manager in the Certification and Licensing Program office in the Ministry of Conservation and Parks. She manages a work unit, or team, of five or six staff including Mr. Salewski. There are three certification officers, one team lead, an intern and one administrative staff. Prior to the pandemic, three members of the team had formal AWA’s whereby they worked from home two days a week. During the pandemic all members of the team worked from home.

20Mr. Salewski testified in detail concerning his job duties. He thoroughly explained what he does and how he is able to perform all of his job duties remotely. His work is very detailed and complex. He needs to be able to concentrate for stretches of time. He testified that he wanted to work from home more than two days a week as his home is quiet, he does not get interrupted, he felt he worked better from home, there was no time wasted travelling to the office, he had more time to get things done at home, and he was happier working from home. Mr. Salewski testified that since returning to the office, there has been no requirement that he attend in person meetings, he has not met with Ms. Capalbo in person, and team members are permitted to attend team meetings as well as Branch meetings via zoom from their desk. Mr. Salewski and the team lead have never been in the office the day of a team meeting. They have always attended team meetings via zoom. Mr. Salewski has never been asked to come into the office on one of the days he works from the satellite office or from home to attend a meeting.

21Ms. Capalbo testified that her team had been quite productive working from home throughout the pandemic. The operational reasons she gave for denying Mr. Salewski’s AWA requests were, as stated in an email of June 20, 2022:

As we transition back to the workplace, it's important that we focus on fostering a positive workplace culture and morale through engagement and teamwork. I expect that reconnecting in person at the office will help enhance our ability to collaborate and work more effectively as a cohesive team.

22Ms. Capalbo testified that Tuesday and Wednesday are the most popular days for staff to attend at the office. There is no single day when everyone is in the office.

23Following the issuing of the SoC memos, information sessions were held across the entire public service for managers to help them understand how to implement the memos. Ms. Capalbo attended such meetings and took notes. In notes taken at an information session held on March 16, 2022, Ms. Capalbo. wrote:

• By 10 weeks 3 days necessary.

• Previous AWA will be honored; no new ones established.

• Flexibility:

o Hours of work:

o Childcare: there are still centers that haven’t expanded to pre-pandemic

schedules

o Commuting: if people feel more comfortable using transit before rush,

managers should accommodate

o Alternate office: managers could accommodate when there’s space

o Masking: optional as requirement lifts on March 21

• People should be informed before deciding whether to wear or not

o work days seem to be longer but will need to change due to commuting

times

• Accommodation:

o Human rights code

o Family status

24When it was put to Ms. Capalbo in cross-examination that this note reflected her understanding that the meaning of the SoC memos was that it was necessary for her staff to be in the office three days a week starting ten weeks after April 4th, she responded: “That was the expectation yes.” Ms. Capalbo testified that “no new ones established” was a reference to the fact that employees would be working from home two days a week on a go forward basis and therefore there was no need to renew or re-establish AWA's that permitted them to do so. When it was put to Ms. Capalbo that her note under “Flexibility” meant that she had flexibility on items such as what days and/or hours an employee would work or what office they would work out of, but she did not have flexibility to permit an employee to work another day from home she responded: “Yes that again would be a given.”

25During Ms. Capalbo’s evidence in-chief, she commented a number of times that Mr. Salewski did not have a “need” to work from home more than two days a week and had no extenuating circumstances. When Ms. Capalbo was asked in cross-examination if, when she referred to “extenuating circumstances” she was talking about a need for accommodation such as human rights or family status accommodation as referred to in her note, she agreed. She then gave an example of one employee who had been permitted to work from home additional days because of a family health matter. Ms. Capalbo said: “The person has no choice, they need to be there for their family.” Ms. Capalbo stated that, in this case, she granted the request because it was “a necessity.”

26On the same page are notes taken by someone by the name of Robyn from a meeting Robyn attended with senior management. These notes state in part:

• Pre- existing arrangements (AWA) will be honoured but now is not the time to start new agreements

• Distinction between needed accommodation and personal work preferences.

Ms. Capalbo testified she understood the last bullet point above to mean that, if an employee needed accommodation, she could consider an AWA of more than two days a week working from home but if the reason given by the employee was not a need for accommodation she ought not to consider it.

27Notes taken by Ms. Capalbo at a branch meeting on March 29, 2022, state in part:

Starting April 4, staff are expected to come into the office 1-2 days/ week

• From April 4 to May 16: one day/ week is acceptable

• After May 16: min. of 3 days per week. This is the expectation and direction from the SoC

o does not discount or replace flexibility around different arrangements to be determined on a case by case basis with your managers.

28On May 11, 2022, Mr. Salewski sent Ms. Capalbo an email asking to request three days of teleworking. Mr. Salewski’s reasons for requesting the three day a week AWA were personal. It would allow him to work without interruption, save him travel time, allow him to work better, and he was happier working from home.

29When Ms. Capalbo received Mr. Salewski’s request, she emailed Umer Rizvi in Human Resources saying:

Can you please let me know if new telework agreements could be considered at this time, or if expired agreements could be updated? In my view, accepting such a plan isn't within the spirit of the OPS-wide plan for returning to the workplace. But I'd like a definitive answer and/or language I can use in my response to him.

30Ms. Capalbo met with Mr. Rizvi on May 25, 2022, to discuss Mr. Salewski’s request. Ms. Capalbo testified that she wanted to understand how to interpret HR policies and manager expectations when dealing with an AWA request. She further testified that she and Mr. Rizvi discussed how to respond to Mr. Salewski’s request. Notes taken by Ms. Capalbo from this meeting set out Mr. Rizvi’s suggestions on how to respond to the request:

Happy to accept and consider your request but need to review it in light of direction from the SoC for employees to be in the office three x week.

Approval of telework agreements must align with direction from SoC. I have considered the request discussed it with Leo and checked with HR. We need to strive for consistency with how we approach the gradual return to the workplace with all staff recognizing that employees have different needs and personal situations to deal with. But there are various types of flexibility that's available to everyone.

I'd be happy to consider renewing your expired agreement for 2 days working from home. You can take advantage of the following types of flexibility:

• flexibility on the three days you come in (can be changed as needed)

• working from alternate office locations

• shifting your start and end times

• using vacation credits for days you've selected to be in the office

I'm open to considering your request, but I need to understand why you need to work from home more than two days a week, and why the flexibility that's available isn't helpful. If you have special accommodation needs, we can talk about that.

Info about a new hybrid model is expected later this summer / early fall. We can wait to see if that will involve new direction or added flexibility.

Immediately following the above, the notes continue with some additional points discussed between Mr. Rizvi and Ms. Capalbo:

Additional notes:

Manager should not reject new requests outright.

Managers have discretion in determining if the request is meeting the balance between operational requirements and SoC’s overall direction for staff to return to the workplace 3 x week employees should be required to explain why they need to work from home more than two days per week. This could help determine if special accommodation is needed.

31In examination-in-chief, Ms. Capalbo testified that she understood managers still had discretion to make decisions around AWA requests and had to consider operational requirements. She further testified that the “spirit of the SoC memos” was not something she could ignore, and the employee should be required to explain why they need to work from home more than two days a week. In cross-examination, it was put to Ms. Capalbo that, when she asked Mr. Salewski on a number of occasions why he needs to work from home more than two days a week, she was doing so because she was of the understanding that he needed to have something more than a general personal preference to get through the door. Ms. Capalbo responded: “Yes.”

32On June 1, 2022, Ms. Capalbo met with Mr. Salewski to tell him she had received his AWA request and would consider it. Notes of this meeting indicate her remarks followed the script that had been suggested by Mr. Rizvi at their meeting of May 25, 2022, set out above. Ms. Capalbo testified that she was trying to understand his need to work from home more than two days a week. She further testified that she was thinking about the SoC memos and the fact that as a manager she had discretion. She understood that she was expected to look at this on a case-by-case basis and try to understand Mr. Salewski’s specific needs. Ms. Capalbo’s notes indicate she asked Mr. Salewski why he needs to work from home and Mr. Salewski indicated it was time saving, work life balance and cost savings. Mr. Salewski asked for a rationale as to why he needed to be in the office and said the SoC memo does not prevent Ms. Capalbo from accepting telework agreements. Ms. Capalbo testified that she informed Mr. Salewski that he was not expressing compelling reasons for his request. She indicated that there no specific circumstances or anything that he was required to deal with that would require him to work more days from home.

33At this stage in examination-in-chief Ms. Capalbo was asked if she agreed with Mr. Salewski that it was not operationally necessary for him to be in the office. She replied that she is required to make some pretty significant decisions in the course of her duties and in order to do so she expects and needs the insight and collaboration of her team. She agreed that, to a point, a lot of the work could be done by the certification officers on their own, but there are critical issues that need to be discussed within the group and she wants to hear the dialogue that takes place amongst the team members. She wants to know that they could support one another, and she wants to hear the discussion that takes place. In addition, she commented that there are some very experienced staff, and, at the same time, there are newer staff who do not have the depth and knowledge of the program. While people can work independently, to get the most out of the team, strong collaboration is required.

34On June 9, 2022, Ms. Capalbo emailed Mr. Rizvi and recounted her discussion of June 1, 2022 with Mr. Salewski. At the end of her email, she writes:

I am considering not accepting his request and will need to do so in writing. Are there templated responses I could reference for this? I'm also hoping you could suggest to me examples of operational requirements’[sic] I may use in my response.

35Ms. Capalbo testified that she was considering not accepting Mr. Salewski’s request because she did not hear any compelling reason or need that meant he had to work more than two days a week at home. In cross-examination Ms. Capalbo testified that she was leaning towards not accepting the request because Mr. Salewski had not given “compelling reasons” and “I wanted examples of things that might be used to justify a denial; I wanted to know what operational requirements are. What is that?” When it was put to Ms. Capalbo that she was looking for reasons to use and at this stage she had no operational requirements in her mind, she responded: “In June 2022 I knew how our team works and what I needed to get the best out of them; I did not need HR to tell me that. In my mind I knew that, but I did not know if that amounted to an operational requirement.” It was Ms. Capalbo’s testimony that the factors she had previously identified as concerning her were a critical part of the job she just didn’t know if they were in line with operational requirements. When it was put to her that there had been no mention of teamwork or any of her other concerns before this, she replied she did not feel she needed to send that to HR but it was in her mind and it was her view it was the best way to work.

36The HRA assigned to Ms. Capalbo then changed and, on June 17, 2022, Ms. Capalbo emailed the new HRA, Sylvie Fregeau-Gunton, and asked if she was able to track down a standard response/messaging she could use. Ms. Capalbo subsequently received a template from HR that provided in part as follows:

Instructions:

• To be provided as either a verbal or written response to a formal AWA request. Not to be used when responding to employment accommodation requests.

• The memo from the Secretary of Cabinet (SoC) indicated that as of May 16, employees should be in the office at a minimum, 3 days per week. Ministries are responsible for ensuring staff comply with this direction, meaning, for the most part staff will be in the office at least 3 days per week. That said, managers should remain committed to providing employees with flexibility and are required to review all requests for AWAs on a case-by-case basis.

• Even though management decisions with respect to AWA requests should be generally consistent, management must not reflexively apply a general policy or a pre-determined conclusion to every request. For instance, management must not automatically deny requests based on general direction with respect to expected attendance at the physical workplace (i.e., direction in the SoC memo). To do so is to fail to exercise management’s discretionary power. Also, such a denial would be arbitrary and unresponsive to the employee’s specific request. Instead, management must turn its mind to the specifics of each employee’s request in order to determine whether it can accept it, and accordingly provide

the reason for denial.

• Instead of denying a request entirely, it is important to consider whether the request can be approved in part (i.e., working remotely 3 days per week rather than 5) or whether any other flexible solutions may be offered to the employee (i.e., flexible or staggered work hours, averaging in-office days over a 2-week period, telework at alternate headquarters).

• With the principle of general consistency in mind, managers are encouraged to consult with their leaders if considering approving AWAs of 3-5 days per week.

Rationale for denial to be determined by management based on review of request, using four-fold test.

Examples include:

• Operational requirements (may reference specific needs to be on-site including, serving clients,

managing physical mail/documents/files, need to attend in-person meetings)

• Legislative requirements

• On-boarding requirements (i.e., for new employees, as well as employee responsible to training

new staff, which may be better facilitated in-person)

• Knowledge sharing and transfer

• Mentorship

• Fostering workplace culture, employee morale

• Importance of collaboration and teamwork as we transition back to the workplace

37On June 23, 2022, Ms. Capalbo emailed Mr. Salewski and denied his request for a three day a week work from home arrangement. This email reads, in part, as follows:

Hi Alex,

Thanks for submitting your request for an Alternate Work Arrangement (AWA) to telework three days per week. This AWA was requested in the context of the Secretary of Cabinet’s direction on returning to the workplace. As was previously communicated to all of us on March 16, 2022, beginning on May 16, 2022 staff who had been working remotely are expected to attend the workplace a minimum of 3 days per week. At the branch meeting on March 29, 2022, it was further explained that from April 4 to May 15, staff could come into the workplace one day per week.

These return to the workplace plans considered a number of factors, including existing AWAs in place prior to the pandemic, physical space considerations, and the most current public health advice. In addition, the OPS remains committed to providing flexibility to employees who had been working remotely as they reintegrate into the physical workplace. This includes continuing to encourage gradual/flexible arrangements with all staff as well as reviewing any new AWA requests, including Compressed Work Weeks, Flexible work hours and Teleworking, on a case-by-case basis and in alignment with applicable collective agreement provisions.

I have carefully considered the information provided in relation to your request, and operational requirements. While we are not going back to the same work environment prior to the pandemic, consideration has been given to how work was done throughout the pandemic, during a time when the province was subject to unprecedented public health. measures, and how this work has evolved and continues to evolve as the province re-opens. and lifts restrictions.

I am not able to approve the request at this time. As we transition back to the workplace, it’s important that we focus on fostering a positive workplace culture and morale through engagement and teamwork. I expect that reconnecting in person at the office will help enhance our ability to collaborate and work more effectively as a cohesive team.

38Mr. Salewski testified that this was the first time he heard the reasons set out in the final paragraph above in those words and he had never heard those concerns expressed in any context outside of his request for an AWA. The concerns set out above were the only reasons or explanation given to Mr. Salewski.

39During examination-in-chief Ms. Capalbo was asked what she considered when deciding to deny Mr. Salewski’s request. Ms. Capalbo testified she considered what her team does, how they operate, and the need to engage. She also considered that for the team needed to connect with each other and collaborate. She referred to the fact that there was a weekly group meeting, and she holds one-on-ones with staff every week. Ms. Capalbo testified that, since returning to the workplace, meetings with program administration take place once a month in person. Ms. Capalbo testified that she felt she had followed the guidance given to her: she was to consider every request on a case-by-case basis; follow the four-step test; make a decision objectively; and consider all factors. She felt that she did that.

40Ms. Capalbo was asked in cross-examination about the fact that she approved Mr. Salewski working at another office one of his three office days each week. She agreed there were no other members of the team at the satellite office and that, while he is there, he is not reconnecting with team members. She agreed working at the satellite office was an operationally viable option because “the organization, the OPS and the Ministry” also agreed. Ms. Capalbo’s explanation as to why Mr. Salewski could not work from home the day he goes to the satellite office is that the ministry directive allows the one day a week an employee spends in a satellite office to be counted towards their three days a week of work from the office. Ms. Capalbo testified that if she allowed him to work an additional day from home, that day would be a day he otherwise would have been in the office reducing his days in the office where his team was located to only one day.

41A follow up meeting was held on July 27, 2022, with Chris MacLean, an AMAPCEO representative, in attendance. Ms. Capalbo took notes at this meeting. These notes summarize the discussion in part:

Val:

o I explained that within PMB, managers are taking a consistent approach in offering flexibility for staff while keeping in line with the SoC direction, and that we’ve engaged with HR for their insights as well

o Examples of flexibility include choosing different days to come in each week, altering start and end times, hotelling, attending meetings from our desks

o We’ve also given staff who needed a bit more time since mid-May to line up childcare and other arrangements so that they could work towards meeting the 3 x per week goal

o I recognized that our team has been quite productive working from home throughout the pandemic, and that the online tools work well

Alex:

o Explain to me why operationally we need to come in 3 x week

• Val:

o I cited benefits from in-person interactions to support team building and stronger engagement (as per my response below)

o Provided example of yesterday when I met with Neil and Nina [certification officers] in a boardroom for the first time and how that felt

o Also explained that there is very little traffic on the 3rd floor, and that there are several workstations, empty offices and boardrooms that can be used if needed

o Asked Alex to explain to me why he cannot come into the office 3 x week; if he has a personal circumstance that would warrant an accommodation, please tell me what that is and I’d reconsider (in response, he only reiterated the points he provided earlier)

o I added that no one would disagree with the reasons he wants to telework more days per week, but they are all based on personal preference (e.g., nice to have) and not out of necessity. I explained that if the entire OPS accepted them as sufficient rationale to continue teleworking as we had been, then we would not be acting within the spirit of the SoC’s intention / goal which is to bring employees back to the office

42In cross-examination, Ms. Capalbo testified that her comment in her note above that her team had been productive working from home throughout the pandemic was accurate. It was put to Ms. Capalbo that, when she asked Mr. Salewski why he could not come into the office she was looking for a necessity at the standard of a need for an accommodation and Ms. Capalbo agreed. She also agreed she was looking for a “necessity” and not a “preference.” Ms. Capalbo testified that, as indicated in the first bullet point above, managers were taking a consistent approach in offering flexibility in line with the SoC direction and if all staff were to ask to work from home 3, 4, or 5 days a week because they did not want to commute, she queried where that would leave the operation if it had to be consistent. She was asked again if she was looking for a necessity to work from home as opposed to a preference and she replies “yes.”

43On July 27, 2022, Mr. Salewski informed Ms. Capalbo that he wished to change his request from three days working from home to four days working from home.

44Ms. Capalbo reached out to Teresa Polito, a manager in HR. Ms. Capalbo wanted to brief her on her handling of Mr. Salewski’s AWA request. A meeting took place on August 3, 2022, with Ryan Johnston, ERA, also in attendance. Ms. Capalbo outlined what had transpired and was given feedback.

45On August 25, 2022, Ms. Capalbo emailed Mr. Salewski denying his request for an AWA that would permit him to work four days a week from home as follows:

Hi Alex,

I acknowledge your updated request to telework four times per week. I also considered our discussion on July 27, 2022. As I had indicated at the end of our meeting, I wasn’t provided with any new or compelling reason(s) as to why your request for an AWA to telework more than 2 days a week is required. I am therefore not able to approve the request.

If you have a personal circumstance that would warrant an accommodation or other arrangement, please let me know and we can determine how your needs could be accommodated.

Please keep in mind that you may avail yourself of different types of flexibility to return to the workplace, including switching the days you come in or altering your start and end times as needed, working in different work stations / offices at 40 St. Clair if you prefer, or continuing to participate in meetings virtually if you find that more comfortable than meeting in person.

I’d be happy to discuss these different options with you.

Valerie

46On November 30, 2022, Mr. Salewski wrote the following email to Yancy Hernandez as follows:

Your name was forwarded to me by Kamilah Weekes as the person maybe I should contact regarding working on the 8th or 9th floor at 5775 Yonge Street. If you are not the correct person please suggest who I should contact.

My name is Alexander Salewski I have worked for MECP for 37 years. I am presently with the drinking water and wastewater operator certification program in the role of certification officer and my home office is located at 40 St. Clair office. I am currently enrolled in the pilot hoteling program, working once a week at 5775 on the 8th floor. I’ve noticed that that hoteling offices are vastly underutilized and available. I am seeking permission to work up to three days at 5775 on the 8th or 9th floor. I am aware that the pilot hotel program is limited to one scheduled booking per week. However, due to the availability I am making this request. My manager Valerie Capalbo is also in support of this request. I can select days that are not in high demand as to not burden delivery of the program. I have been issued a office pass card and I would not be a burden for morning arrival. Should demand increase for the 8th and 9th floor hoteling offices I will gladly revert to the pilot program’s one day per week limited booking upon request.

Thank you

Alexander Salewski

47Mr. Salewski testified he wanted to work additional days from the satellite office as it was only five minutes from his home. Mr. Salewski testified that he discussed the idea with Ms. Capalbo and she gave her approval. Ms. Capalbo did not, after the email was sent, tell Mr. Salewski that she did not support his request.

48Ms. Capalbo testified that Mr. Salewski wanted to explore if he could use the satellite office more than one day a week as that was the maximum currently permitted. Mr. Salewski asked Ms. Capalbo if she would be supportive. Ms. Capalbo testified that she advised him that she would be supportive of him exploring whether it was an option not that she would be supportive of him attending at the satellite office more than one of the three days he was required to be in the office as that was a decision she had not yet made.

49Mr. Salewski was subsequently told by Ms. Capalbo that he could not work more than one day a week from the satellite office as the pilot program only permitted one day a week.

50On August 1, 2023, Ms. Capalbo emailed her team informing them that the ADMO was requiring information about the days of the week they were going into the office on a regular basis. The email stated:

We are also required to confirm a team ‘anchor’ day, which is the day we are all at 40 St. Clair as a cohort. We can determine that based on the day of the week most people come in and revise our office days as needed. I will move our regular team meetings to that day if our anchor day turns out not to be Tuesdays.

51Ms. Capalbo discussed the establishment of an anchor day with her team. She asked the team what days there were coming in and found that Tuesday and Wednesday were the most popular days. Ms. Capalbo testified she asked Mr. Salewski if he was willing to come in on a Tuesday or Wednesday and he said it would not work for him, so an anchor day did not get established. Mr. Salewski agreed that Ms. Capalbo canvassed the team and, he believes the day she landed on, was Wednesday. Mr. Salewski testified, when Ms. Capalbo asked if he would switch one of his in-office days to Wednesday he responded: “are you going to force us to come in?” Mr. Salewski’s tone and manner at this point in his testimony suggested that he was very resistant to having to change his day in the office. He stated that he felt it was unfair that he had to change his day and no one else did. Ms. Capalbo agreed, as manager, she had the ability to require Mr. Salewski to attend at the office on a Tuesday or Wednesday but she did not do so. Mr. Salewski recognized that, even with an AWA, he could be required to attend at the office on any day his manager directed him to do so. Ms. Capalbo agreed in cross-examination that, had she had concerns about the lack of in person interaction impacting operational requirements she could have taken steps earlier to implement an anchor day and she did not do so. Ms. Capalbo explained that, when Mr. Salewski told her he would not come into the office on a Tuesday or Wednesday, with this grievance outstanding and at arbitration, she chose not to complicate matters. Ms. Capalbo testified that they currently hold hybrid team meetings, and it is not ideal and there is not full participation. When it was put to her that it cannot be an issue impacting operational requirements as it had been over two years and no steps had been taken, she agreed it was viable but stated it was not ideal.

Analysis and Decision

52Before turning to the specifics of this case, it is useful to pause and contemplate the obligation created by article 47.1. Article 47.1 provides as follows:

The OPS supports flexible work arrangements and building a flexible work culture demonstrating flexibility in when, where, and how people work. The purpose of the flexible arrangements is to respond to changing workplace expectations of employees of all ages, boost employee engagement and retain high-performing employees and demonstrate the Employer commitment to being a modern Employer.

Alternative Work Arrangements (AWAs) may include but are not limited to: compressed work week, flexible hours with fluctuating start and end times, job sharing, pre-retirement part-time employment, and telecommuting/telework. AWAs may be entered into by mutual agreement between an employee and their manager. In considering any AWA, the manager will consider, in good faith, both the employee’s request and the operational viability of the AWA for the work site.

53Article 47.1 is a limitation on the Employer’s management rights. Pursuant to Article 47.1, an employee can request an AWA. There is no limitation on “employee” and hence any employee in the bargaining unit can make a request.

54When a manager receives an AWA request, they must consider two factors in good faith: (i) the employee’s request and (ii) the operational viability of the work site.

(i) The employee’s request

55What facts are relevant, and what facts are irrelevant, when a manager considers the employee’s request will vary from case to case. It is impossible to create a definitive list. However, the facts relevant to a manager’s consideration of the employee’s request will likely be facts that relate to the employee and the location from which they want to work.

56In connection with the employee themselves, facts such as the following may, or may not, be relevant: the extent to which the employee would personally benefit if the request were granted; the extent to which the employee requires in person supervision or training; if the request is being made by a valuable employee the manager does not want to lose; whether the situation the employee is contemplating will allow them to come into the office on work from home days if necessary; whether the employee has other alternative work arrangements in place that would conflict with this request.

57In connection with the location from which they want to work, facts such as the following may, or may not, be relevant: where does the employee propose to work on their out of office days; is the location from which the employee wants to work appropriate and safe; is there a cost of getting resources the employee will need to the location; is there reliable internet; will the employee be able to report to the office on short notice in cases where such might be necessary.

(ii) The operational viability of the work site.

58What facts are relevant, and what facts are irrelevant, to consider under the heading “the operational viability of the work site” will vary from case to case and especially from job to job and work unit to work unit. What can be said is that, under this heading, the manager is considering both the benefits and the detriments to the work site of having the employee work from home on the number of days being requested.

59Benefits may, or may not, include freeing up office space or having a less tired, and therefore more productive, employee. Detriments might include: an impact on the transfer of knowledge amongst the team; employee morale; loss of oversight and supervision; work not being able to be performed to operational standards; the simple fact that the employee’s work must be performed at a particular location and could not be performed if they are not there.

60After considering the relevant facts relating to both the employee’s request and the operational viability of the work site, the manager balances the benefits to the employee and the work unit of granting the request with the detriments to the employee and the work unit of not granting the request and makes a decision.

61It may be that there is one fact that is so compelling, that it is basically determinative. Take the example of an employee whose duties require them to be in the office. The detriment to operational viability if the employee was not in the office is so extreme it is highly unlikely anything about the employee’s request would be sufficient to warrant granting the request. In such a case, the level of consideration given to any other facts would reasonably be quite low. Equally, it may be that an employee wants to work from a location that is not conducive to their getting their work done or is unsafe. In such a case, the request could likely be denied with little consideration given to operational viability.

62The manager is required to consider both the employee’s request and the operational viability of the work site, but what facts are relevant, and the thoroughness or exhaustiveness of the review, will depend on the facts of the specific case.

63What a manager cannot do is ignore relevant information or consider irrelevant information. A manager can’t ignore relevant information or consider irrelevant information on an individual basis, say by refusing to take into consideration the employee’s reason for making the request or considering facts that have no bearing on the issue at hand. Similarly, the manager cannot refuse to consider relevant factors a blanket basis, say by refusing to consider any request unless made by an employee who commutes less than 100 kilometres to the office. Every employee is entitled to make a request and have their request considered along with the operational viability of the granting of their request on an individual basis with only relevant factors being considered. The case law on this point is reviewed below.

64Just as a manager cannot adopt blanket rules that operate to exclude employees from consideration, nor can the Employer do so. While the SoC memos, applicable to the entire OPS, might be considered by a manager as part of the context within which they are making their decision, the SoC memos cannot, as Arbitrator Anderson stated in Roffey, supra, trump the consideration given to the employee’s request and operational viability of the work site.

65Turning to the specifics of this case, AMAPCEO argues the handling of Mr. Salewski’s AWA request violates article 47.1 as the Employer failed to consider Mr. Salewski’s request for an AWA in good faith. AMAPCEO submits Ms. Capalbo interpreted the two SoC memos as a direction that she not approve an AWA that permitted working from home more than two days a week and then applied that interpretation when making her decision. AMAPCEO submits that, in doing so, she considered irrelevant factors and denied the request based on a blanket rule. In addition, AMAPCEO argues Ms. Capalbo purported to deny the request by selecting from an HR provided template that listed a menu of possible operational reasons she could choose from. Ms. Capalbo chose reasons that had no basis in reality and passed this off as the basis for the denial.

66Secondly, AMAPCEO argues there was no genuine exercise of discretion but a rigid adherence to the SoC memos. Ms. Capalbo interpreted the SoC memos to mean that work from home arrangements would not be approved for more than two days a week absent a need for accommodation and applied that interpretation when considering Mr. Salewski’s request.

67Further AMAPCEO argues there was no consideration given to the merits of Mr. Salewski’s individual AWA application. His request was for an AWA based on work life balance type considerations, however, Ms. Capalbo. decided at the outset that work life balance considerations could not form the basis for an AWA. Her position was that work from home of more than two days a week would only be granted in instances of necessity by which she meant a need for accommodation.

68Finally, AMAPCEO argues relevant facts were ignored, and irrelevant considerations were relied on. Primarily among the irrelevant factors considered were the two SoC memos which Ms. Capalbo. interpreted and applied as a prohibition of work from home arrangements of more than two days a week. There was a lack of consideration for facts relevant to operational viability. Ms. Capalbo’s own evidence was that working from home was viable for the work site. Her own actions, including a failure to take any steps to implement an anchor day and her approval of Mr. Salewski to work at satellite offices to satisfy one of his in-office days demonstrate that the rationale she gave of needing Mr. Salewski in the office to foster teamwork could not be a matter of operational viability for the work site.

69AMAPCEO’s argument is based on following test set out in Re Kuyntjes and Ministry of Transportation and Communications (1984), GSB No. 513/84 (Verity) for the standard of review applicable to an employer’s exercise of its discretion:

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 a rigid policy adherence.

3. Consideration must be given to the merits of the individual application under review.

4. All relevant facts must be considered and conversely irrelevant considerations must be rejected.

70I found Ms. Capalbo to be a credible witness. She was consistent in her testimony and readily acknowledged her thinking and conduct even where it was problematic to the Employer’s case. Her version of what she did, and why she did it, is probable when considered in context. In giving responses that were not helpful to the Employer’s case, it is evident that she resisted the tug of self-interest.

71As set out in the foregoing summary of the evidence, Ms. Capalbo was asked in cross-examination if her note of the March 16, 2022, information session reflected her understanding that the SoC memos meant it was necessary for her staff to be in the office three days a week starting ten weeks after April 4th, and she responded: “That was the expectation yes.” When it was put to Ms. Capalbo that her note under “Flexibility” meant that she had flexibility on items such as what days and/or hours an employee would work or what office they would work out of, but she did not have flexibility to permit an employee to work another day from home she responded: “Yes that again would be a given.”

72Ms. Capalbo later testified that while she understood managers still had discretion to make decisions around AWA requests and had to consider operational requirements, the “spirit of the SoC memos” was not something she could ignore, and the employee should be required to explain why they need to work from home more than two days a week. In cross-examination, it was put to Ms. Capalbo that, when she asked Mr. Salewski on number of occasions why he needs to work from home more than two days a week, she was doing so because she was of the understanding that he needed to have something more than a general personal preference to get through the door. Ms. Capalbo responded: “Yes.” Ms. Capalbo stated several times during her testimony that, for an AWA to be granted, there would have to be exceptional circumstances and by that she meant a need for accommodation such as is required in human rights.

73Having regard to Ms. Capalbo’s testimony I find she interpreted the SoC memos, and the guidance she received after the memos were issued, as directing her not to grant an AWA to an employee unless they had “exceptional circumstances” such as the need for a human rights or family status accommodation.

74In Toronto District School Board and CUPE (Hamilton), Re, 2016 CarswellOnt 7214 (Steinberg) the collective agreement provided “the Director or designate may grant miscellaneous leave…” for the purpose of, amongst other things, “under special circumstances for reasons approved by the Director or designate”. An employee applied for “miscellaneous leave” to attend her son’s wedding, and the request was denied on the basis that “special circumstances” was limited to “unforeseen” events. Arbitrator Steinberg found that “special circumstances” was not limited in scope to “unforeseen events” and, by its erroneous interpretation of “special circumstances” the Employer fettered its discretion. Arbitrator Steinberg set out the following quote from McMurrich Sprouts Daycare and CUPE, Local 4400 (Szwaj), Re, 2013 CarswellOnt 18633 (Ont. Arb.) at para. 33 as the “proper exercise of such powers:

What is required is a consideration of all the circumstances of the specific case. The proper exercise of discretionary power, which is what the Employer's right to request a certificate for less than three day absence is, requires that the Employer consider all the relevant facts and exclude irrelevant considerations. Focusing on a single fact is akin to applying a blanket policy as it allows the Employer to ignore relevant information.

[emphasis added [by Arbitrator Steinberg]]

75Arbitrator Steinberg also referred to TRW Canada Ltd. and TPEA, Re (2001) CarswellOnt 10097 (Ont. Arb.) (Saltman). In this case, the collective agreement contained a provision that required employees to work both the day before and the day after a holiday to be paid holiday pay. An exception was provided for in the event of “special circumstances” subject to approval by the production coordinator and the manager of human resources. The employer then promulgated a policy that permission to leave early on a day before or after a holiday would only be granted in the event of an emergency. The union filed a grievance alleging that the policy fettered the discretion of the production coordinator and manager of human resources.

76Arbitrator Saltman allowed the grievance as follows:

36.... management cannot fetter, or disable itself from exercising, its discretion by promulgating a fixed policy in order to achieve consistency. It is the essence of the discretionary power that it be exercised in individual circumstances. Nevertheless, it would seem that management fettered its discretion by promulgating the August 22, 2000 policy.

37. In fact, this policy would appear to offend Article 19.03 (c) in two material respects: firstly, by fettering its discretion, and secondly, by restricting the circumstances in which this discretion may be exercised beyond those agreed to in the collective agreement. In this regard, Article 19(c) provides for entitlement to holiday pay for an employee who is absent on a qualifying day because of ‘special circumstances’, which have been approved by the Company. Although ‘special circumstances’ are not defined, they would appear to be broadly based. The policy, on the other hand, purports to limit the circumstances in which permission may be given for an employee to be absent on qualifying days to ‘emergency purposes’. Although this term, as well, is undefined, the ordinary meaning of ‘emergency’ would appear more restricted than ‘special circumstances’. It seems clear, therefore, that by limiting the application of the policy to ‘emergency purposes’, the Company has narrowed the scope of Article 19.03(c), in violation of the collective agreement.

77Toronto District School Board, McMurrich Sprouts Daycare and TRW Canada, amongst many other cases in the arbitral jurisprudence, establish that an employer (or in this case a manager) cannot, by way of the creation of a condition or rule preclude itself from exercising its discretion. The decision maker has to consider all requests as anticipated by the scope of the collective agreement provision and determine the outcome based on considerations that apply to that request. To do otherwise, is to consider irrelevant considerations and to fetter the decision maker’s discretion.

78Further, as articulated in TRW Canada, by restricting the employees who may apply or the circumstances in which a discretion might be exercised, the scope of the article of the collective agreement is improperly narrowed in violation of the collective agreement.

79Applying the foregoing to the instant matter, Article 47.1 provides that the manager is to consider, in good faith, both the employee’s request and the operational viability for the work site. Article 47.1 is available to all employees covered by the collective agreement. By interpreting and applying the SoC memos as restricting her ability to grant an AWA of more than two days from home unless the employee could demonstrate exceptional circumstances, Ms. Capalbo considered irrelevant considerations and fettered her discretion. Such constitutes a violation of article 47.1 of the Collective Agreement.

80Further, by imposing a requirement that the employee must be in need, as opposed to seeking an AWA due to a personal preference, Ms. Capalbo effectively narrowed the scope of article 47.1. No longer were all employees who Ms. Capalbo manages eligible to request an AWA; now only those employees who could establish exceptional circumstances equivalent to a need for accommodation, were eligible.

81I turn to whether, as AMAPCEO argues, Ms. Capalbo had no operational concerns about granting Mr. Salewski an AWA to work from home more days each week and denied the request by selecting from a menu of possible operational reasons which have no basis in reality.

82Ms. Capalbo and Mr. Salewski testified that the unit operated effectively during the pandemic when everyone worked from home. That is not, however, a full answer to whether, after the pandemic, when employees are able to return to work, there are reasons relating to operational viability to have them do so. I do not consider the fact that work was done effectively when employees were working 100% remotely during the pandemic to be determinative of the “operational viability of the worksite” after the pandemic. As Ms. Capalbo testified, while the unit operated effectively during the pandemic, operating remotely was not ideal.

83The SoC memos were issued on March 1 and March 16, 2022. The members of Ms. Capalbo’s team were required to report to work in the office three days a week starting May 16, 2022. Mr. Salewski put in his request for an AWA on May 11, 2022, prior to the date on which he was required to be in the office three days a week. He was approved for participation in the hotelling program and started working out of a satellite office on May 24, 2022. Mr. Salewski attended at the office on Mondays and Fridays, which were the quietest days when only he and the team leader were generally there.

84Ms. Capalbo readily admitted that, when she attended a meeting on March 16, 2022, to be briefed on the SoC memos, she formed the understanding that it was necessary for employees to be in the office three days a week and that the flexibility she had at her disposal did not include approving an employee to work from home more than two days a week. So, when she received Mr. Salewski’s request for an AWA to work from home three days, as she wrote in her email to Mr. Rizvi it was her view “accepting such a plan isn’t within the spirit of the OPS-wide plan for returning to the workplace.” Mr. Rizvi’s suggestion as how to she should respond to Mr. Salewski’s request includes the statement “approval of telework agreements must align with direction from SoC.” In her notes from her meeting with Mr. Rizvi there is a note that she should not reject the request outright, she has a discretion in “determining if the request is meeting the balance between operational requirements and the SoC's overall direction for staff to return to the workplace 3 x week” and employees should be required to explain why they need to work from home as this would help to determine if special accommodation is needed. Nothing in Ms. Capalbo’s meeting with Mr. Rizvi helped her to understand the meaning of “operational requirements” or what she should be considering under that head.

85Ms. Capalbo met with Mr. Salewski on June 1, 2022, and asked him about his reasons for asking for the AWA. No mention was made at this meeting about operational requirements. Ms. Capalbo sent an email to Mr. Rizvi on June 9, 2022, recapping her meeting with Mr. Salewski and asked if there were templated responses she could refer to. She further stated: “I'm also hoping you could suggest to me examples of operational requirements I may use in my response.”

86As is set out above in the summary of the evidence, Ms. Capalbo was asked in examination-in-chief if she agreed with Mr. Salewski that it was not operationally necessary for him to be in the office. She replied that she is required to make some pretty significant decisions in the course of her duties and in order to do so she expects and needs the insight and collaboration of her team. She agreed that, to a point, a lot of the work could be done by the certification officers on their own, but there are critical issues that need to be discussed within the group and she wants to hear the dialogue that takes place amongst the team members. She wants to know that they could support one another, and she wants to hear the discussion that takes place. In addition, she commented that there are some very experienced staff, and, at the same time, there are newer staff who do not have the depth and knowledge of the program. She stated that, while people can work independently, to get the most out of the team, strong collaboration is required.

87Ms. Capalbo testified that she asked Mr. Rizvi for examples of operational requirements because she wanted to know what operational requirements were. She did not know if the concerns she had in her mind amounted to operational requirements. When it was put to Ms. Capalbo in cross-examination that she was looking for reasons to use and had no operational concerns in her mind at that time she was clear and adamant that she “knew how the team works and how to get the best out of them. I did not need HR to tell me that but I did not know if that amounted to an operational requirement.”

88Ms. Capalbo received a templated response for AWA requests and examples of operational requirements from Ms. Fregeau-Gunton on June 20, 2022. This is the first time Ms. Capalbo was given guidance as to the meaning of “operational viability.”

89Ms. Capalbo denied Mr. Salewski’s request on June 23, 2022, stating in part:

I am not able to approve the request at this time. As we transition back to the workplace, it’s important that we focus on fostering a positive workplace culture and morale through engagement and teamwork. I expect that reconnecting in person at the office will help enhance our ability to collaborate and work more effectively as a cohesive team.

90AMAPCEO argues that the reasons set out in Ms. Capalbo’s email mirror, almost word for word, the examples of operational requirements she was provided by HR. AMAPCEO argues this fact indicates the operational requirements sited by her were a fabrication. I am not persuaded that the similarity in wording means the operational requirements were fabricated. As Ms. Capalbo testified, she did not know what operational requirements meant and had to seek out guidance from HR. She was provided with a list and two examples on the list aligned with the concerns she had in her mind. I do not find that adopting the language of the examples as opposed to using her own words casts doubt on the validity of her evidence.

91AMAPCEO also relies on the fact that Ms. Capalbo approved Mr. Salewski’s request to work out of a satellite office once a week as undermining her evidence that she had operational concerns about his working from home one additional day each week. AMAPCEO questioned Ms. Capalbo from the perspective that Mr. Salewski would spend the day he currently spends at the satellite office at home meaning he would still report to St. Clair West two days a week. That was not the perspective from which Ms. Capalbo viewed the situation. She testified that, if she had granted Mr. Salewski’s request to work from home three days a week, he would still be entitled to work at the satellite office one day a week, with the result that he would be in the office only one day a week. I accept her version of how the AWA would have worked out as there is no evidence to the contrary. The fact that she was willing to have Mr. Salewski report to the office where the rest of the team was located at 40 St. Clair West only two days a week, does not mean no operational issues would be caused by his reporting to the office only one day a week.

92AMAPCEO also relies on the fact that Ms. Capalbo did not enforce an anchor day in support of its argument that the operational requirements she stated existed were not valid. Mr. Salewski’s attitude when questioned about Ms. Capalbo asking him to come into the office on a Tuesday or Wednesday for an anchor day was quite defensive. With a louder voice than usual he testified that he asked Ms. Capalbo why he should have to change the day he comes into the office and if she was forcing him to do so. He described the suggestion that he should have to change one of the days that he goes into the office as unfair. His testimony indicated that he strongly objected to the suggestion. Ms. Capalbo testified that, at this time, this grievance was outstanding, and the arbitration hearing was in progress, so she decided not to complicate matters. I accept Ms. Capalbo’s evidence on this point and do not consider her failure to force an anchor day to undermine her evidence as to the operational considerations she had in mind.

93Finally, AMAPCEO also relies on the fact that Ms. Capalbo approved Mr. Salewski seeking approval from the MECP Hoteling Pilot for him to work two days, as opposed to one, at the satellite office. Ms. Capalbo testified that Mr. Salewski asked her if he could find out whether working from the satellite office two days a week was possible and she approved his making such inquiry. Ms. Capalbo testified, if approval had been granted, another conversation then would have had to take place as she had not approved his working at the satellite office more than one day a week. Mr. Salewski disagrees and testified that she did approve his working out of the satellite office two days a week if he could get approval from the pilot project.

94I prefer Ms. Capalbo’s evidence on this point. As indicated above, I found her to be a very credible witness.

95Having regard to the foregoing, I find that Ms. Capalbo had concerns in her mind that she did not know were “operational” concerns from the beginning. She only received guidance as to the meaning of operational viability and confirmation that her concerns were relevant well into the process. She then immediately set those concerns out in her email to Mr. Salewski denying his request. I do not find that the operational concerns she expressed were fabricated.

96I find Ms. Capalbo interpreted and applied the SoC memos as restricting her ability to grant an AWA of more than two days from home unless the employee could demonstrate exceptional circumstances, and in doing so, adopted a blanket rule that excluded eligible employees from consideration. I declare that the Employer has violated of article 47.1 of the Collective Agreement.

97The parties are to advise the Board as to whether the require a further hearing on remedy. I remain seized.