GSB# 2022-8113

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 (Wildman)

Association

• and -

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

Employer

BEFORE

Adam Beatty

Arbitrator

FOR THE ASSOCIATION

Marisa Pollock Amy Chen Goldblatt Partners LLP Counsel

FOR THE EMPLOYER

Felix Lau Treasury Board Secretariat Legal Services Branch Counsel

HEARING

March 20, October 20, December 6, 2023; January 8, January 11, February 22, and written reply submissions March 7, 2024

Decision

I. Introduction

1By way of email dated April 5, 2022, Joseph (Jody) Wildman (“the Complainant”) requested an alternative work arrangement (“AWA”) pursuant to Article 47 of the Collective Agreement. The Employer denied the Complainant’s request. The Complainant grieved that decision.

2The Complainant is employed as a Program Coordinator in the Industry Development Section (“IDS”) of the Ministry of Natural Resources and Forestry. Starting in March 2020 all IDS staff (including the Complainant) worked remotely five days a week because of the Covid-19 pandemic.

3The Complainant’s request for an AWA needs to be understood in context. Key to this context are two memoranda issued by Ms. Michelle E. DiEmanuele, Secretary of Cabinet (“SOC”) to all Ontario Public Service (“OPS”) staff (“the two SOC memos”). On March 1, 2022, the SOC issued a memorandum that employees would be expected to return to work three days a week beginning on April 4, 2022.

4On March 16, the SOC issued a second memorandum. The second memo scaled back the return to work plans. According to the second memo, employees would be expected to return to the office one or two days a week beginning on April 4, 2022 and a minimum of three days a week beginning on May 16, 2022.

5Article 47.1 is also key to understanding this grievance. It states 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.

6AMAPCEO argued that when the Employer denied the Complainant’s requested AWA, it applied the two SOC memos in a blanket fashion without considering, either his request in good faith or the operational viability of the AWA for the worksite. Accordingly, AMAPCEO argued that the Employer’s denial of the Complainant’s request for an AWA violated Article 47.1 of the Collective Agreement.

7For the reasons set out below, the Association’s grievance is allowed. The Employer’s denial of the Complainant’s request for an AWA violated Article 47.1 of the Collective Agreement. The facts show, unequivocally, that in denying the Complainant’s request, the Employer did not consider his request in good faith. To the extent that the Employer considered the operational viability of the AWA for the worksite, the evidence establishes that the Complainant’s manager, Ms. Kristin Fremlin, thought that the Complainant could do all of the requirements of his position while working remotely. Put somewhat differently, Ms. Fremlin was satisfied that the Grievor could work remotely without impacting the operational viability of the worksite. Finally, the evidence also shows that the driving force behind declining the Complainant’s request was the Employer’s interpretation and application of the two SOC memos.

II. Background and Facts

8The parties entered their evidence by way of will-say statements. The witnesses were then cross-examined on those statements. The will-say statements had a number of exhibits attached to them. The Board was provided with an extensive documentary record setting out, in considerable detail, the chain of events from the Complainant’s request for an AWA to the ultimate denial of that request.

9This is a highly fact specific case. As such I have set out the relevant facts in considerable detail.

10The Complainant emailed his request for the AWA to his manager, Ms. Fremlin, on April 5, 2022. In his request, the Complainant noted the following:

• the AWA would not include a minimum number of days per week that he had to attend at the workplace but he would agree to come in for meetings, training, and at management’s discretion for events that required in person attendance;
• the AWA would improve his work/life balance, reduce his carbon footprint, improve his quality of life, health and fitness, and reduce his cost of living;
• working remotely during Covid had shown that working remotely could have beneficial results for himself and the Employer; and
• his request for the AWA was consistent with the guiding principles of the OPS Flexible Work Strategy Principles and Criteria (“the OPS flexible work strategy”).

11Later on April 5^th^, 2022, Ms. Fremlin emailed Ms. Sarah White, a Human Resources Advisor (“HRA”), requesting a meeting to discuss the Complainant’s AWA request. That meeting took place on April 7, 2022. Ms. White also responded to Ms. Fremlin by way of email dated April 13, 2022. In that email, Ms. White noted the following:

• employees were required to return to the office unless there was a flexible work arrangement, a medical reason or a family status accommodation;
• the Complainant was not relying on any extenuating circumstances in making his request; and
• the Employer was not entertaining any permanent AWA’s at that time and the direction of the SOC was that all employees return to the office.

12In her email, Ms. White indicated that those reasons (amongst others) were not to be shared with the Complainant. Ms. White then concluded her email with a suggested response, denying the Complainant’s request. Ms. White suggested that Ms. Fremlin state as follows:

I have reviewed and considered the information which you have provided in support of your request. However, based on the information you have provided I do not find there to be personal or extenuating circumstances preventing you from returning to the workplace. In consideration of the factors you have outlined and consideration of employer’s operational requirements, I’m unable to approve your request for a 5 day telework arrangement at this time. Therefore, in the absence of additional information, you are expected to attend the workplace on DATE.

13Ms. Fremlin had significant concerns with Ms. White’s suggested response. Ms. Fremlin testified that she was not comfortable with the language suggested by Ms. White. On April 27, 2022, she emailed her Director, Mr. Wayne Barnes and set out her concerns. Specifically, Ms. Fremlin noted the following:

• the Complainant’s AWA request was thoughtful and genuine, he did not embellish his reasons or disingenuously claim he could not return to the office, rather he indicated that the AWA would be better for him;
• the Complainant pointed out that based on his experience he was able to “perform all of required duties remotely” and “operationally he is able to complete 100% of his work effectively remotely”;
• the HRA recommended that the Complainant’s request be denied even though it is up to the “manager’s discretion”;
• Ms. White’s proposed response declining the AWA did “not reflect the true reasons” and could confuse the Complainant because the rationale for the denial was not responsive to the reasons he gave in requesting the AWA;
• approving the request was not aligned with SOC direction; and
• the HRA recommended the response to the Complainant be brief because of an expectation that a grievance would be filed on this decision.

14Mr. Barnes responded to Ms. Fremlin two days later. He noted that he believed that the denial of the Complainant’s request for an AWA complied with Article 47. He also indicated that he would escalate the matter because he had concerns with the proposed denial of the Complainant’s AWA request, including the following:

• telling the Complainant that his AWA was being denied because there were no “personal or extenuating circumstances” was not responsive to his request;
• suggesting that manager exercised her discretion in denying the Complainant’s request when that was not actually the case; and
• managers were not at liberty to give the real reasons for denying the AWA.

15In his will say, Mr. Barnes indicated that he was concerned with the Complainant’s request because it amounted to a request to work remotely five days a week and because it was fundamentally justified on the basis of lifestyle preferences.

16Ms. Fremlin responded to Mr. Barnes later the same day. She made the following comments:

• the Complainant’s request was “operationally feasible in the sense that Jody can do 100% of his work remotely (which he has demonstrated very well over the last two years)” while also noting that it was not operationally feasible in the sense that the OPS did not want all of its employees working entirely remotely;
• the Employer was “not really considering AWA requests on a case by case basis at manager’s discretion”;
• in her view neither the Collective Agreement nor the OPS flexible work strategy spoke to limits on the number of days per week an employee could work remotely; and
• that while she did not agree with the reference in the denial of the Complainant’s request to “insufficient personal or extenuating circumstances” this was the best she could come up in light of being told “not to use the “real” reasons”.

17In cross-examination, Ms. Fremlin was asked about this last point. Ms. Fremlin agreed when it was put to her that the “real reason” the Complainant’s AWA request was being denied was because she was required to follow the SOC memos.

18Following this feedback from Ms. Fremlin, Mr. Barnes sent an email to Sean Maguire, Deb Weedon and Emma Root bringing the Complainant’s request to their attention. Mr. Maguire is the Assistant Deputy Minister for the Ministry. Ms. Weedon is a Director. Ms. Root is an HRA.

19In that email, Mr. Barnes noted that the request for the AWA was not based on extenuating circumstances, but rather that the Complainant established over the course of the pandemic that he could work effectively from home five days a week and that both the Collective Agreement and the OPS flexible work strategy allowed for it. Mr. Barnes also wrote that:

• managers were concerned by the perception they had more discretion than they actually had and that they could not communicate the real reasons for denying a request;
• a clear answer would involve telling employees that the Employer was being flexible by not requiring them to return to the office five days a week and that managers were not required to approve exactly what was requested but that the HRA had advised these reasons were “not to be shared with the employee”; and
• it would make managers’ jobs much easier if the Employer simply indicated that it was not up to their discretion.

20Ms. Root responded to Mr. Barnes by “strongly” advising Ms. Fremlin to use the language that Ms. White had originally recommended. Ms. Root indicated that:

• the language was developed by Employee Relations and was consistent with the language being used across the OPS; and
• the AWAs were being discussed at the AMERC table and that it was important a precedent was not set by approving this request that both Employee Relations and the HRA advised against (having assessed the request using the four-fold test)

21Mr. Barnes then forwarded Ms. Root’s email to Ms. Fremlin. This in turn lead to another series of emails between Ms. Fremlin and Ms. White and Ms. Fremlin and Mr. Barnes. In those emails, Ms. Fremlin indicated that she had concerns with the wording proposed by Ms. White that suggested that she had reviewed and considered the information the Complainant had provided in support of his request. In her May 3, 2022 email to Mr. Barnes, Ms. Fremlin wrote that she was uncomfortable with language that implied that she “reviewed the request entirely on [her] own (i.e. without input/direction from HR/ER or my manager/ADM and only [she] had input into the final decision).” According to Ms. Fremlin suggesting that she was the only one who had input into the final decision was disingenuous.

22Mr. Barnes responded to Ms. Fremlin later the same day. He recommended that she call Ms. White to explain her concern, follow up with an email, and “then use the language” she was being directed to use.

23Ms. Fremlin then emailed Ms. White. She indicated that she had adopted the language recommended by Ms. White despite her unease with it. She reiterated that she was concerned that the email implied the decision to deny his request was made entirely by her, which was not the case. She also noted that the rationale for denying the Complainant’s request did not make sense because the Complainant “did not claim there were any personal or extenuating circumstances preventing him from returning to the workplace.” Finally she noted that the response provided to the Complainant was “disingenuous” and went against her “personal values of authenticity, honesty and integrity.”

24Ms. Fremlin then sent an email to the Complainant denying his request for an AWA. She used the language approved by Ms. White. The email stated, in part, as follows:

I have reviewed and considered the information which you have provided in support of your request. However, based on the information you have provided I do not find there to be personal or extenuating circumstances preventing you from returning to the workplace. In consideration of the factors you have outlined and consideration of the employer’s operational requirements, I’m unable to approve your request for a 5 day telework arrangement at this time. Therefore, you are expected to attend the workplace at least one day per week until May 13th and starting the week of May 16th, you are expected to attend the office a minimum of three days per week in accordance with the temporary hybrid model that is currently in place.

25The Complainant responded on May 4, 2022. In his response, he raised several issues, including the following:

• his request for an AWA was not based on “personal or extenuating circumstances” preventing him from returning to the workplace as suggested by the Employer’s denial;
• his request for an AWA was based solely on Article 47 of the Collective Agreement;
• there were no operational requirements that he could not meet if he worked remotely; and
• he requested that his AWA be reconsidered and that if it was denied a second time due to “the employer’s operational requirements” that he be provided with the specific operational requirements that could not be met by him working from home.

26Later that day, Ms. Fremlin forwarded the Complainant’s response to Ms. White. Ms. White asked her to draft a response that she could review prior to Ms. Fremlin responding. Ms. Fremlin then responded asking for guidance before noting that the Complainant’s email was “exactly the concern I had with the response I was directed to give him.” Ms. Fremlin concluded her email by stating:

There are no operational requirements that can’t be met from him working from home that I am aware of (with 2 years demonstrating just that). He is willing to come into the office on an ad hoc basis for training or other needs as they may arise.

27Ms. White responded to Ms. Fremlin by way of email dated May 6, 2022. In her email, Ms. White stated that:

• it was important that Ms. Fremlin make her decision using the four-fold test and that regardless of how she decided, HR would support her;
• the response provided was sufficient to advise the Complainant that operationally it was not possible for him to have an AWA that would allow him to work from home permanently; and
• operational feasibility is determined by the employer not the employee.

28Ms. White’s response lead to another series of emails between Ms. Fremlin and Ms. White, and Ms. Fremlin and Mr. Barnes. Various draft responses to the Complainant’s latest email were exchanged between the three of them. In Ms. Fremlin’s initial draft she wrote that:

• AWAs were not being considered at that time unless there were personal or extenuating circumstances that prevented an employee from attending the workplace;
• the OPS was working on a standardized hybrid work model that they hoped to roll-out in the fall;
• the OPS was providing flexibility by allowing employees to decide if they wanted to work from home up to two days a week and the Complainant could decide which two days he would stay home.

29Ms. White responded to Ms. Fremlin’s draft response with a number of suggested edits. Mr. Barnes was copied on her email. Most significantly, Ms. White’s draft removed the reference to AWAs not being considered in the absence of personal or extenuating circumstances and inserted language indicating that the Complainant’s AWA had been “reviewed and independently considered based on the factors you [the Complainant] have outlined and the considerations of the employer’s operational requirements”. Reference to there being “no personal or extenuating circumstances” preventing the Complainant from attending the office in person was left in Ms. White’s draft.

30In response to Ms. White’s draft, Ms. Fremlin reiterated her frustration with relying on the lack of personal or extenuating circumstances to justify denying the Complainant’s request. Ms. Fremlin noted that she addressed this issue in her first draft but that Ms. White had deleted that language (when she deleted the sentence that AWAs were not being considered absent personal or extenuating circumstances). Ms. Fremlin also indicated that she still did not understand what operational requirements were not being met if the Complainant worked remotely, and that she did not have a good answer for this question other than “it is SOC direction and if we approve his request, we will have to do the same for others”. Finally, Ms. Fremlin also offered the following comment:

As we discussed, I have no issue declining the request but I do have concerns about being deliberately evasive with our response. I think we own [sic] our employees a truthful rationale. Also, if we provide no rationale, I expect he will respond back pointing out that we haven’t addressed his questions and again requesting an explanation.

31After a little more back and forth, Ms. Fremlin, Ms. White and Mr. Barnes agreed to the following language to use in responding to the Complainant’s questions:

I would like to clarify that your AWA request was independently reviewed and considered based on the factors you outlined and in consideration of the employer’s operational requirements. At this time, in the absence of extenuating circumstances, I am not able to approve your request for a 5 day telework arrangement. …

32In cross-examination, Ms. Fremlin indicated that she was never satisfied that her emails to the Complainant provided a truthful explanation for why his request for an AWA was being denied. Ms. Fremlin agreed with counsel for AMAPCEO when it was put to her that it was not true that the Complainant’s request for an AWA was independently reviewed. Ms. Fremlin stated that while his request was considered on its own merits, she also understood, based on the two SOC memos, that if there were no extenuating circumstances, such as a disability or a need for accommodation, it would not be approved. Ms. Fremlin also agreed when it was put to her that she disagreed with much of the content of the email sent to the Complainant but that she agreed to do what she was told.

33The Complainant responded to Ms. Fremlin by way of email dated May 12, 2022. He asked for clarification on what she meant when she wrote that his AWA request was “independently reviewed”. He also asked for a list of the specific reasons why his request would not be operationally viable.

34The Complainant’s email to Ms. Fremlin lead to another round of emails between Ms. Fremlin, Ms. White and Mr. Barnes. By way of email dated May 18, 2022, Ms. Fremlin responded to the Complainant by indicating that “independently” meant that the Complainant’s request was reviewed on its own merits. In response to the Complainant’s second question, Ms. Fremlin indicated that it was the Employer who determined operational requirements and that the Employer was requiring employees to be in the office three days a week. Ms. Fremlin also noted that the leave request was denied because there were no personal or extenuating circumstances.

35In cross examination, Ms. Fremlin agreed that here too she wrote what she was told to write despite her own misgivings.

36The Complainant responded to Ms. Fremlin by way of yet another email later that day. In that email, the Complainant raised a concern that someone other than Ms. Fremlin had made the decision to deny his request. He also reiterated that his request for an AWA should be considered under Article 47 of the Collective Agreement and independently from the OPS return to work plan or any OPS hybrid model that was being developed by the Employer. The Complainant concluded by requesting a meeting with Ms. Fremlin and an AMAPCEO representative. He stated as follows:

If you [Ms. Fremlin] are not able to provide any further details that would show that my request was considered in good faith and without arbitrariness, that it is not operationally viable for the type of work I do, that it was considered on its individual merits and all relevant factors, and that you were able to exercise your managerial discretion, I would request a meeting with you, my AMAPCEO representative present, to try and resolve this issue.

37Ms. Fremlin reached out to Ms. White and proposed a response to the Complainant’s email. Ms. White proposed a few edits to that response. During this back and forth, the Complainant followed up with Ms. Fremlin renewing his request for a meeting. Ms. Fremlin sought out Ms. White’s advice again. Ms. White indicated that she was consulting with Employee Relations. Employee relations proposed rejecting the Complainant’s request for a meeting and advising him that the matter was now closed.

38Ms. Fremlin ultimately accepted Employee Relations’ advice and emailed the Complainant, on June 7, 2022, telling him that she had reviewed his request for an AWA and had made her decision and that another meeting would not be productive because there was nothing left to discuss.

39The Complainant responded the next day. In an email dated June 8, 2022, the Complainant took the position that Ms. Fremlin had not answered his questions. The Complainant set out a number of questions that he felt remained unanswered including the following:

• had Ms. Fremlin genuinely exercised her managerial discretion in denying his request;
• how did Ms. Fremlin determine that the Return to Work hybrid model was an operational need? And was the Return to Work hybrid model being considered an operational need across the OPS or the Ministry?; and
• were there any other facts that made his requested AWA not operationally viable

Finally, the Complainant repeated his request for a meeting with Ms. Fremlin and an AMAPCEO representative.

40The next day, the Complainant emailed Ms. Fremlin again. The Complainant attached a memo, dated August 1, 2017 to his email. He asked Ms. Fremlin to review the memo in considering his request. In broad strokes, the August 1, 2017 memo reiterated the need to assess all AWA requests on their own merits and to give proper consideration to the circumstances of each individual and to operational needs.

41Ms. Fremlin sought Ms. White’s guidance on how to respond to the Complainant. Ms. Fremlin attached the August 1, 2017 memo to her email and asked that Ms. White review the memo in preparing her response. Ms. White suggested a response to the Complainant that would indicate that his request had been considered according to the principles set out in the AMAPCEO Collective Agreement and that beyond that she had nothing else to say on the question.

42Ms. Fremlin responded by noting that, according to the August 1, 2017 memo, the “Employer needs to provide actual examples where an AWA will impede operational requirements”. Ms. Fremlin noted that if asked to do so, she did not think they would be able to provide any such examples with respect to the Complainant’s requested AWA. She asked Ms. White and Mr. Barnes whether they needed to consider this issue before responding to the Complainant.

III. Arguments

a. Position of the Association

43AMAPCEO argued that Article 47 of the Collective Agreement limits the Employer’s management rights. It imposes an obligation on an employee’s manager to consider a request for an AWA in good faith. It also requires an employee’s manager to consider the operational viability of the AWA for the worksite. According to the Association, the decision of whether or not an AWA is appropriate under Article 47 depends on local considerations.

44The Association relied extensively on the decision of the Board in AMAPCEO (Roffey et al) and Ontario, 2024 CanLII 8294 (ON GSB) (Anderson) (“Roffey et al.”). That case addressed the interplay between an office standard adopted by the Toronto Regional Office of the Ministry of Children, Community, and Social Services (the “TRO”) and the two SOC memos. Prior to the pandemic, the TRO had implemented an “office standard” that allowed employees to work remotely for up to three days per week. During the pandemic, the TRO announced that the office standard would be changed, and that upon return to the workplace, employees would be permitted to work remotely up to four days per week.

45As set out above, prior to the return to the workplace, the two SOC memos were issued. The TRO interpreted the two SOC memos as permitting it to continue to allow employees to work remotely three days per week because it constituted an existing AWA in place prior to the pandemic. However, the TRO also concluded that the increase of up to four days of remote work per week was not permitted under the two SOC memos because that increase was announced during the pandemic.

46The Association grieved the TRO’s decision to reverse the four days per week of remote work announcement as a violation of Article 47. In that case, the Association argued that under Article 47 local management is charged with making decisions with respect to remote work and the two SOC memos amounted to an impermissible fettering of that discretion.

47The Board allowed the Association’s grievance in Roffey et al. The Board held that Article 47 was a restriction on management rights and that the Employer could not fetter the discretion granted to managers under Article 47 to consider requests for days of remote work in excess of the office standard. The Board concluded that the TRO interpreted and applied the two SOC memos in such a way as to fetter the manager’s discretion to consider any AWA that went beyond the three days of remote work in place prior to the pandemic. According to the Board in Roffey et al. the evidence established “that following the SOC Memos, the Employer had adopted a rigid policy of not agreeing to AWAs for more than three days per week of remote work.”

48In the current matter, the Association advanced the same argument. The Association argued that the evidence showed that the Employer interpreted and applied the two SOC memos in such a way as to fetter Ms. Fremlin’s discretion to consider the Complainant’s request.

49The Association also argued that the Employer did not comply with the fourfold test when it denied the Complainant’s request for an AWA. The parties agreed that the fourfold test was first set out in Kuyntjes and Ministry of Transportation and Communications (1984), GSB No. 513/84 (Verity) and that it sets out the standards for the exercise of management discretion. The fourfold test is as follows:

1. The decision must be made in good faith and without discrimination.
2. It must be a genuine exercise of discretion 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.

50The Association argued that none of the factors in the fourfold test were met by the Employer. According to AMAPCEO, the manager was not allowed to exercise her discretion and was told to respond in a manner that was neither responsive to the Complainant’s request nor truthful. In those circumstances the decision could not have been made in good faith. Nor was there a genuine exercise of discretion by Ms. Fremlin (despite her best efforts). The Association argued that she was told what to do in order to comply with the two SOC memos. This amounted to “rigid policy adherence” according to the Association. Consideration was not given by Ms. White, or those above her, to the merits of the Complainant’s request. AMAPCEO argued irrespective of what the Complainant said the Employer rigidly adhered to the two SOC memos. Finally, the Association also argued that the fourth factor was not met. The Association noted that where the first three factors are not met the fourth factor also will not be.

51Applying the fourfold test to Article 47.1, the Board in Roffey et al. held that a manager “must consider factors relevant to the employee’s request and to the operational viability of the work site. Other factors are irrelevant”. The Board went on to hold as follows:

67. Factors relevant to an employee’s request are inherently individual: they require consideration of the employee’s circumstances. Factors relevant to the operational viability of an AWA for a work site may include consideration of the work site in a larger context. OPS-wide factors, such as a direction from the SOC, may be relevant to what is operationally viable for a work site. They cannot, however, trump other relevant factors, including purely local factors. This is because, as stated by Arbitrator Parmar in McMurrich Sprouts Daycare and CUPE, Local 4400 (Szwaj),Re, 2013 CarswellOnt 18633 (Ont. Arb.) at para. 33: “Focusing on a single fact is akin to applying a blanket policy as it allows the Employer to ignore relevant information.

52The Board then noted that whether discretion was improperly fettered was a matter of fact. Turning to the two SOC memos, the Board concluded that under the two SOC memos managers could not approve new AWAs that provided for three or more days per week of remote work. The Board noted that employees in the TRO understood, based on the two SOC memos, that AWAs that called for four or more days of remote work per week would not be approved. The evidence also established, according to the Board, that the decision not to allow four or more day of remote work was not made by the TRO.

53The Board concluded that Article 47 was breached to the extent that the direction to managers not to consider AWAs that included more than three days of remote work per week removed the obligation of managers to consider such requests. The Board held that it was “the direction to managers not to consider requests for an AWA in excess of three days of remote work per week which is in breach of Article 47.”

54By way of remedy, the Board ordered the Employer to advise the TRO managers that they must in good faith consider requests for AWAs in excess of the office standard (i.e. three days a week of remote work).

55The Association argued that the evidence in the current matter was more compelling than the evidence before the Board in Roffey et al. The emails between Ms. Fremlin and Ms. White (and others) showed, conclusively according to the Association, that the decision to deny the Complainant’s request was not made by the Complainant’s manager Ms. Fremlin.

56The Association argued that the Employer in effect imposed a blanket rule. The only issue the Employer considered was whether the AWA requested by the Complainant’s complied with the two SOC memos. According to the Association, by proceeding in this manner the Employer ignored relevant information and violated the Collective Agreement. The Association noted that Arbitrator Steinberg reached a similar conclusion in Toronto District School Board and CUPE (Hamilton), 2016 CarswellOnt 7214 (Steinberg).

57Similarly, in PEGO and The Crown in the Right of Ontario, 2016 CanLII 7448, the Board concluded that the Employer failed to consider a number of relevant factors when it decided to eliminate compressed work weeks. The Arbitrator concluded that there was no evidence to support the Employer’s conclusion that compressed work weeks needed to be cancelled. As such, the Board found that the Employer’s decision was arbitrary and unreasonable and therefore a breach of the collective agreement. The Association argued that the same conclusion should apply.

58The Association argued that in the instant case, the overwhelming reason the Complainant’s request for an AWA was denied was because it did not comply with the two SOC memos. The two SOC memos had little to no regard for local considerations, and in the words of the Association, “usurped” Ms. Fremlin’s discretion. The Association noted, as set out above, that part of the rationale for denying the Complainant’s request for an AWA was that it would be inconsistent with what the Employer was doing elsewhere in the OPS. As such, according to the Association, the Employer had not satisfied its obligations under Article 47 of the Collective Agreement.

59The Association argued that Ms. Fremlin’s evidence was clear. She believed that in light of the SOC memos the Employer was not issuing AWA’s unless there were extenuating circumstances or an accommodation was required. The Association noted that, as described above, in an email dated April 13, 2022, Ms. White wrote as follows:

• The employer is not entertaining any remote work agreements (AWAs) permanently at this time and the direction provided by SOC is that all employee return to the office space.
• We as the employer also have to remember that we are providing flexibility to employees by not having them return to the office 5 days per week. Currently the flexibility being offered is the 1-2 days per week and then May 16, 2022 to have employees return 3 days per week. The employer is being flexible by not having them return full time (5 days per week).

60According to the Association, this email demonstrates that from the outset, the Employer was not considering the Complainant’s request pursuant to the requirements of Article 47. The Association argued that in this email the Employer plainly stated that it would not consider the personal circumstances of the individual or the operational requirements of the workplace as required under Article 47. Rather, the Association noted that the Employer was taking the position that it was already granting employees a generous amount of time to work remotely and that was sufficient. The Association also pointed to comments Ms. Fremlin made in response to an email from Mr. Barnes on April 29, 2022 (as set out above) where she noted that by applying the SOC memos the Employer “was not really considering AWA requests on a case by case basis at managers’ discretion.”

61The Association also noted that during her cross examination, Ms. Fremlin agreed that she believed that employees could not work from home beyond what was permitted by the SOC unless the employee already had an AWA in place. Ms. Fremlin also agreed that the only flexibility provided to employees (unless there were extenuating circumstances or a pre-existing AWA) was the flexibility contemplated by the SOC memos.

62The Association also relied on the email from Ms. Root on May 2, 2022 to Mr. Barnes (and subsequently forwarded to Ms. Fremlin). As set out above, in that email, Ms. Root “strongly advised” that Ms. Fremlin use the language originally provided by Ms. White. Ms. Root noted that the language originally provided was consistent with wording being used across the OPS and that AWA’s were being discussed by the labour-management employee relations committee. Ms. Root noted her concern about the possibility of setting a precedent if the request was approved. The Association argued that this email constituted further evidence of the Employer’s failure to apply an individualized approach as required by Article 47.1 of the Collective Agreement.

63The Association argued that Ms. Fremlin’s evidence was clear that the Complainant’s request was not denied because of anything inherent to the request or because of the operational viability of his request. The Association did not dispute that the Complainant’s request was based on his personal preferences and was not the result of personal or extenuating circumstances. In particular, the Complainant was clear in his will-say and during cross-examination, that the AWA he requested would improve his quality of life, his work-life balance, it would allow him to live a healthier lifestyle, and would reduce his carbon footprint. The Association noted these factors were consistent with those listed in the OPS flexible work strategy. The Association also noted, as set out above, that in an email to her Director, Ms. Fremlin wrote that the Complainant’s request was “thoughtful and genuine.” Ms. Fremlin also indicated that based on her understanding of the OPS flexible work strategy, the OPS claimed to support AWA for all the reasons the Complainant was relying on.

64The Association noted that the Complainant’s evidence also established that he viewed his request to work remotely five days a week as an opening position and an invitation to continue discussing the appropriate amount of time to spend at the office. The Complainant was clear that he anticipated further conversations to determine what was reasonable. The Association noted that the Complainant stated in his will-say that he was willing to come in when required by the Employer. The Association emphasized that the Complainant also indicated during cross-examination that he thought giving the Employer flexibility in terms of when he needed to be in office would be beneficial to the Employer. However, those conversations never took place because the Employer simply refused his request.

65The Association argued that the evidence was even more emphatic when considering the issue of the operational viability of the Complainant’s request. The Association stated that the evidence unequivocally established that the Complainant could carry out all the functions of his position remotely. Ms. Fremlin noted, in several emails, that the she did not think the Complainant’s request raised any concerns regarding the operational viability of the worksite. For example, in an email dated May 4, 2022, Ms. Fremlin wrote to Ms. White that there were “no operational requirements that can’t be met from him working from home that I am aware of (with 2 years demonstrating just that).

66The Association also pointed to an email from Ms. White to Ms. Fremlin dated May 26, 2022, where the Employer makes reference, for the first time, to the idea that working together in the office allows for greater “collaboration, innovation, relationship and team building”. The Association argued that this explanation for turning down the Complainant’s request came late in the day and was little more than a stock response.

67The Association also noted that the Complainant’s evidence established that the Complainant’s position involved a considerable amount of “telework” prior to the pandemic. The Complainant spoke about his colleagues working in three different offices. Important weekly and by-weekly meetings took place by way of conference call. As such, according to the Association, the idea that the Complainant was required to be in the office to facilitate team building and collaboration was not supported by the facts of this specific worksite.

68To the extent that Ms. Fremlin raised concerns in her will-say statement that allowing the Complainant to work remotely five days a week would open the floodgates, or that that the Complainant’s requested AWA fettered her discretion, or that there were team-building and cohesion benefits to having the Complainant come into the office at least occasionally, the Association argued that that evidence should not be given any weight. The Association noted that there was no contemporaneous evidence of Ms. Fremlin having concerns about any of these issues. The Association suggested that these issues amounted to a belated attempt by the Employer to bolster its case.

69In light of all of the foregoing the Association urged the Board to conclude that absent the two SOC memos the Complainant’s request would have been approved. The individual considerations of the request are those that, according to the Association, should have led to the request being granted. Similarly, the operational requirements were also met. The Association argued that as such and pursuant to Article 47 the Complainant’s request should have been approved. More importantly, because the denial of the Complainant’s request, was based on the two SOC memos, it violated the Collective Agreement.

70In terms of remedy, the Association argued that the nature of the request and the operational viability of the request both favoured granting the Complainant his requested AWA as opposed to remitting the matter to his manager to be considered in good faith. In the alternative they asked for the manager to make a decision within two weeks.

b. Position of the Employer

71The Employer argued that the Complainant’s request for an AWA was extraordinary. The Employer noted that the request would effectively mean that the Complainant worked remotely five days a week. Such a request represents, according to the Employer, a significant intrusion into its management rights that is not supported by Article 47.

72The Employer noted that Article 47 does not entitle an employee to an AWA. Article 47 provides only for a procedural right. It requires a manager to consider, in good faith, an employee’s request and the operational viability of the request. Nothing more. The Employer contrasted the procedural right under Article 47 to other provisions in the Collective Agreement where employees’ requests cannot be unreasonably denied. Under Article 47, the Employer argued that arbitrators cannot second-guess an employer’s decision if the decision is reasonable. Relying on Simcoe (County) District School Board v. O.P.S.E.U., Local 330, 2022 CarswellOnt 2761 (Davie) the Employer noted that it is required to consider relevant factors and that it cannot rely on extraneous considerations.

73The Employer argued that it is not required to provide reasons for denying a request for an AWA. In OPSEU (Neeb) and Ministry of Finance, GSB No. 2002-1438 (Abramsky), the Board held that while it may be preferable for the Employer to provide reasons there is no requirement to do so. As such, whether the Employer failed to provide the Complainant with the “true reasons” for the denial is a separate question from the issue of whether the Complainant was entitled to the requested AWA.

74The Employer also argued that the focus of this grievance, and therefore any decision issued by the Board, should be on how the Complainant’s manager responded to his request for an AWA. The grievance is not, according to the Employer, about the two SOC memos. The Employer claimed approaching this matter in this way is consistent with approach the Board took in Roffey et al.

75Turning to the Complainant’s actual request, the Employer argued that it did consider the Complainant’s request for an AWA in good faith. The Employer noted that the request was reviewed in depth and the Complainant had multiple opportunities to follow up with his manager. In so far as AMAPCEO emphasized the role of Ms. White, the Employer notes that as an HRA her role is to provide “advice and recommendations” to managers but that she did not make the ultimate decision to deny the Complainant’s request.

76The Employer emphasized that the requested AWA was rejected, at least in part, because of the lack of compelling reasons to justify such an extraordinary request. The Employer noted that the Complainant justified his request on the basis of a number of “generic reasons” including the following:

• he preferred to work out of his home office;
• it was hard to move his office equipment back and forth between his home and the Employer’s workplace;
• working from home would improve his work life balance;
• working from home was more environmentally friendly;
• working from home would allow him to exercise more; and
• working from home would allow him to remain more actively involved in the community.

77The Employer noted that in her will-say statement, Ms. Fremlin indicated that the reasons given appeared to be generic and that most of them would likely apply to the majority of employees. The Employer argued that none of the reasons provided by the Complainant established that he needed to work remotely five days per week. At most, his request reflected his personal preference and nothing more.

78According to the Employer, Ms. Fremlin was also justified in turning down the Complainant’s request for an AWA because of the impact his request would have on management’s ability to determine when his attendance in the workplace was required. In her will-say, Ms. Fremlin noted that she was concerned that granting the Complainant’s requested AWA would fetter her ability to determine when his attendance at the office was required. Ms. Fremlin also noted that she was concerned that the Complainant’s requested AWA implied that his consent or agreement was required before he could be asked to come into the office. Ms. Fremlin also expressed a concern in her will-say statement that the Complainant’s requested AWA would require the Employer to establish the bona fides of a request to reduce the number of days the Complainant was working remotely, even though there is no such requirement in the Collective Agreement.

79The Employer noted that Article 47.3 of the Collective Agreement permits the cancellation of an AWA with 30 days notice. The AWA implied that the Complainant’s consent would be required to any changes to the AWA. Ms. Fremlin also indicated in her will-say statement that she was concerned that the Complainant’s requested AWA was inconsistent with the AWA template agreement in the AMAPCEO collective agreement.

80Finally, Ms. Fremlin also noted in her will-say that she was concerned that the Complainant’s requested AWA would have a wider impact on the other employees who worked with the Complainant (and other employees in the OPS more broadly). In short, Ms. Fremlin raised the concern that if the Complainant’s request was approved, out of fairness she would have to grant similar requests from other employees.

81The Employer argued that the decision to deny the Complainant’s request for an AWA was consistent with applicable jurisprudence. In particular, and relying on the decision in Simcoe (County) District School Board, the Employer argued that it was appropriate for the Employer to consider the following factors:

• whether approving a request for an AWA could open the floodgates to other requests from other employees (including employees not represented by AMAPCEO); and
• the duration of the request.

82According to the Employer, and as set out above, Ms. Fremlin was concerned that if she approved the Complainant’s request to work remotely five days per week she would have to approve similar requests from other employees. She was also concerned, again according to the Employer, that it appeared to her that the AWA requested by the Complainant was open ended and could operate indefinitely. The Employer argued that it was appropriate for Ms. Fremlin to take these factors into account when rejecting the Complainant’s request.

83The Employer also argued that declining the request due to deficiencies within the request itself was consistent with a number of cases including: Stewart and Canadian Nuclear Safety Commission, 2018 FPSLREB 8, 2017 CarswellNat 8496 (Chankasingh) and Wire Rope Industries Ltd. and United Steelworkers, Local 3910 (1982), 1982 CanLII 5086 (BC LA), 4 L.A.C. (3d) 323 (Chertkow); and Nova Scotia Union of Public and Private Employees, Local 2 v. Halifax Regional Centre for Education, 2019 NSSC 333.

84The Employer argued that Ms. Fremlin properly considered the impact the Complainant’s requested AWA would have, if granted, on the operational viability of the worksite. As described above, the Employer was concerned that the AWA would fetter its ability to determine when the Complainant would be required to attend at the worksite. The Employer was also concerned that if the Complainant’s request was granted, many other employees would make similar requests and it would have to grant those requests as well. Both of those concerns, according to the Employer, had potentially significant implications for the operational viability of the Complainant’s request on the worksite.

85The Employer also took the position, more broadly, that a manager must consider factors relevant to the employees request (as set out above) and operational viability. According to the Employer, granting a request for an AWA simply because it was operationally viable would be inconsistent with the language in Article 47.1. The Employer argued that deficiencies in the request, such as those referred to above (the lack of a compelling reason for the request and the potential fettering of the Employer’s ability to require the Complainant to come into the workplace).

86The Employer also noted that Ms. Fremlin raised a concern in her will-say statement that being in the office provides a better opportunity for collaboration, innovation, relationship and team building.

87In terms of remedy, the Employer also argued that if the Board determined that the Employer violated Article 47, the appropriate remedy would be to remit the matter back to the Employer so that it can exercise its discretion properly. According to the Employer, this outcome would be consistent with the Board’s remedial approach where the exercise of the Employer’s discretion is at issue. The Employer noted that this remedy was consistent with the following decisions: O.P.S.E.U (Taylor et al) and Ministry of Community Safety and Correctional Services, GSB No. 2012-2926; O.P.S.E.U. (Germotte) and Ministry of the Solicitor General), GSB No. 2019-1524 and O.P.S.E.U. (White) and Ministry of the Solicitor General), GSB No. 2017-2911.

88Applying these cases to the current grievance, the Employer argued that the Complainant is not entitled to a specific AWA (or any AWA at all). In addition, the Complainant stated in his evidence that his request was intended to initiate a conversation with the Employer. It was not the intended to be a “take it or leave it offer”. In the circumstances, if the Board concludes that the Employer improperly exercised its discretion, the appropriate remedy would be to remit the matter to the Employer so that it can exercise its discretion appropriately.

89In addition, the Employer argued that it would not be appropriate to require the Employer to exercise its discretion within a stipulated period of time. The Employer noted that Article 47 does not include any specific timelines, there are no other decisions where a timeline has been imposed, and imposing a timeline may hamper the parties’ ability to have fulsome discussions regarding the requested AWA.

90The Employer also noted that the remedy it was proposing (in the event the Board concluded that there was a breach of Article 47) was consistent with some of the decisions cited by the Association. In Roffey et al., PEGO, and Ontario (Workplace Safety and Insurance Board) and CUPE Local 175, (2015) 255 L.A.C. (4^th^) 223, the GSB declined to grant specific orders being sought. Rather, as set out above, in Roffey et al, the Board declared a breach and ordered the Employer to direct the TRO managers to exercise their discretion in good faith. In PEGO and Ontario and CUPE Local 175, the issue of remedy was remitted to the parties.

c. Association Reply

91In its reply, the Association argued that in Roffey et al., the Board concluded that Article 47 is a restriction on management’s right. It prescribes what the Board must consider when an employee requests an AWA. The Association argued there was no reason to depart from the Board’s decision in Roffey et al.

92The Association emphasized that the evidence supported the conclusion that the Employer failed to consider the Complainant’s request in good faith and instead declined the request because of the two SOC memos. The Association noted that Ms. Fremlin raised a number of concerns in her will-say regarding the Complainant’s request that were not found in any of the contemporaneous emails. The Association argued this evidence should not be given any weight.

93The Association also sought to clarify that the failure to provide the Complainant with the true reasons for denying his requested AWA was evidence that the request was not considered in good faith as required by Article 47. In short, the Association argued that Ms. Fremlin was told she could not communicate the true reasons for denying the request. As a result of this direction, the Association argued that Ms. Fremlin was not able to consider or respond to the Complainant’s request in good faith.

94Finally, the Association argued that in the circumstances of this case, the relief it had requested should be granted.

III. Analysis and Decision

95There is no dispute that subject to the provisions of the Collective Agreement, the Employer has the right under Article 3 to direct the workforce, including the right to determine work methods, the location of the workplace and the right to make reasonable rules and regulations. Article 47 limits how the Employer can direct the workforce when faced with a request for an AWA. Pursuant to Article 47, the manager is required to consider an employee’s request for an AWA. The manager is required to consider in good faith, both the employee’s request and the operational viability of the AWA for the work site.

96Based on the evidence before me, I have concluded the Employer did not consider, in good faith either the Complainant’s request or the operational viability of the AWA for the work site. As such, the decision to deny the Complainant’s request for an AWA violated Article 47 of the Collective Agreement. Accordingly, the grievance is allowed.

a. The Complainant’s request not considered in good faith

97The evidence shows that the Employer did not consider the Complainant’s request in good faith. As set out in detail above, by way of email dated April 13, 2022, Ms. White indicated that employees were required to return to the office unless there was a pre-existing flexible work arrangement, a medical reason or a family status accommodation was required. Ms. White also stated that the Employer was not entertaining any permanent AWA’s at that time and that the two SOC memos required all employees to return to the office.

98In the April 13 email, Ms. White also told Ms. Fremlin that these reasons could not be shared with the Complainant. Later, Ms. Fremlin was told not to disclose the real reasons for denying the Complainant’s request because there was a concern that a grievance would be filed once he was told his request had been denied.

99At the end of her email to Ms. Fremlin, Ms. White provided a draft response. That response is reproduced again here for convenience:

I have reviewed and considered the information which you have provided in support of your request. However, based on the information you have provided I do not find there to be personal or extenuating circumstances preventing you from returning to the workplace. In consideration of the factors you have outlined and consideration of employers operational requirements, I’m unable to approve your request for a 5 day telework arrangement at this time. Therefore, in the absence of additional information, you are expected to attend the workplace on DATE.

100Again, as discussed above, Ms. Fremlin indicated that she had grave concerns with the proposed response. Ms. Fremlin noted that the Complainant’s request was thoughtful and genuine. Ms. Fremlin also noted that the proposed response was not responsive to the Complainant’s request because it did not address the reasons the Complainant gave for requesting the AWA. In cross-examination, Ms. Fremlin agreed that the “real reason” the Complainant’s AWA request was being denied was because she was required to follow the two SOC memos.

101Following the April 13, 2022 email, there was a series of emails between Ms. Fremlin, Ms. White, Mr. Barnes, and Ms. Root. Throughout these emails, Ms. Fremlin reiterated various concerns with the Employer’s proposed response. Ms. Fremlin continually raised concerns that the communication with the Complainant was not providing the real reason for the denial. She noted repeatedly that the Employer’s proposed response was not responsive to the issues the Complainant had raised. She also indicated that the Employer’s proposed response gave the impression that she alone was deciding the Complainant’s request when that was not the case. Finally, and crucially, Ms. Fremlin noted that it was her understanding that the Employer would not accept any AWAs that went beyond what was being permitted under the two SOC memos.

102The parties agreed that the fourfold test sets out the standard for the Employer’s exercise of discretion. Based on all of evidence presented, I am satisfied that the Employer did not meet any aspect of the fourfold test. As argued by the Association, the Employer took active steps to avoid disclosing the true reason for denying the Complainant’s request. It provided responses that were unresponsive. The Employer continually referred to the lack of “personal and compelling circumstances” for the Complainant’s request despite both Ms. Fremlin and the Complainant, repeatedly advising that his request was not based on personal or compelling considerations. Ms. Fremlin raised her concerns with Ms. White and Mr. Barnes. Mr. Barnes shared Ms. Fremlin’s concern that managers were not at liberty to tell employees the real reasons for denying a request for an AWA. The decision not to advise the Complainant of the true reasons for denying his request is indicative of a process that was clearly inconsistent with making a decision in good faith.

103I also agree with the Association that Ms. Fremlin was not permitted to engage in a “genuine exercise of discretion”. To the contrary, she was told from the outset by Ms. White that the Employer was not approving AWAs that included remote work beyond that contemplated in the two SOC memos. Similarly, Ms. Root “strongly recommended” that she use the language proposed by Ms. White in responding to the Complainant’s request. In an email to Mr. Barnes, Ms. Root noted that the language proposed by Ms. White “was developed by Employee Relations” and was consistent with wording being used across the OPS in similar cases.

104Nor did the Employer give consideration to the merits of the Complainant’s application. Ms. Fremlin noted that the request was “thoughtful and genuine”. Many of the reasons given for his request were taken directly from the OPS flexible work strategy. However, other than noting that the Complainant’s reasons were mere “preferences”, and not “especially compelling”, the Employer failed to engage with the Complainant’ specific request. Rather, it applied the two SOC memos and used those memos as the basis for denying his request. As such, there is no evidence that supports the conclusion that the Employer satisfied this aspect of the fourfold test.

105Finally, the evidence established not only that the Employer failed to consider all of the relevant facts but also considered irrelevant factors. Primary amongst the irrelevant factors the Employer considered were the two SOC memos. The Board in Roffey et al addressed this issue and stated as follows:

Of particular note is the requirement to consider all relevant facts and reject irrelevant considerations. Article 47.1 states: “In considering any AWA, the manager will consider in good faith both the employee’s request and the operational viability of the AWS for the work site.” Thus, a manager must consider factors relevant to the employee’s request and to the operational viability of the work site. Other factors are irrelevant.

Factors relevant to an employee’s request are inherently individual: they require consideration of the employee’s circumstances. Factors relevant to the operational viability of an AWA for a work site may include consideration of the work site in a larger context. OPS-wide factors, such as a direction from the SOC, may be relevant to what is operationally viable for a work site. They cannot, however, trump other relevant factors, including purely local factors. This is because, as stated by Arbitrator Parmar in McMurrich Sprouts Daycare and CUPE, Local 4400 (Szwaj) Re, 2013 CarswellOnt 18633 (Ont. Arb.) at para: 33 “Focusing on a single fact is akin to applying a blanket policy as it allows the Employer to ignore relevant information.”

As a result of the SOC’s March, 2022 Memos, the TRO changed its “office standard” for remote work from the anticipated four days a week to three days a week. To the extent this constituted a change in the direction which the Employer was giving to its managers as to the number of days of remote work to which they should agree in a requested AWA, it was a permissible exercise of management rights. If, however, it also constituted a direction not to agree to more than three days per week, it was in contravention of the obligation of managers under Article 47 to consider such requests in good faith.

106In this matter, I am satisfied that the two SOC memos were interpreted, and applied, as a prohibition on agreeing to an AWA that included more than two days of remote work per week. As noted repeatedly in the Employer’s emails set out above, the flexibility contemplated by the two SOC memos was that employees would not be required to come into the office five days a week and employees could choose the days of the week they worked remotely. However, beyond that, there was no consideration of allowing employees to work more than two days per week at home (let alone five as requested by the Complainant). In that sense, the Employer interpreted the two SOC memos in the exact same fashion that the Board found to be a contravention of Article 47 in Roffey et al.

107In short, the evidence is overwhelming that the Employer did not consider the Complainant’s request in good faith. To the contrary, the Employer deliberately mislead the Complainant when it denied his request, refused to provide the “true reasons” for its decision, and applied the two SOC memos without regard to the merits of his request. In so doing, the Employer breached Article 47 of the Collective Agreement.

b. Operational viability of AWA for the work site

108The Employer also failed to consider the operational viability of the Complainant’s request for the worksite. The evidence was perhaps more conclusive with respect to this aspect of the test under Article 47.

109The Complainant indicated that he had worked remotely throughout the pandemic and had had no problems fulfilling the duties and responsibilities of his position. To the contrary, the Complainant believed that he was more effective, and more efficient, working from his home office. There was no evidence that contradicted the Complainant’s belief in this regard.

110Similarly, Ms. Fremlin noted repeatedly in her emails with Ms. White and Mr. Barnes, that she believed the Complainant could carry out 100% of his job working remotely. Ms. Fremlin noted that the Complainant had done so for approximately two years during the pandemic.

111The evidence also demonstrated that important aspects of the Complainant’s position had been fulfilled remotely prior to the pandemic. There was no dispute that IDS employees worked out three different locations: one in Sault Ste. Marie, one in Thunder Bay, and one in Sudbury. Prior to the pandemic IDS employees held weekly meetings with individuals in Thunder Bay and Sudbury joining by teleconference. Similarly, larger branch meetings, involving employees working out of Sault. Ste. Marie, Thunder Bay, Sudbury, Peterborough, Timmins and elsewhere in Ontario, were held on a bi-weekly basis. Here too, individuals working outside of Sault Ste. Marie joined those meetings by teleconference. Both the weekly and bi-weekly meetings continued by way of videoconference during the pandemic.

112Ms. Fremlin did raise a number of concerns about the operational viability of the Complainant’s requested AWA in her will-say statement. Ms. Fremlin indicated that she was concerned that the Complainant’s requested AWA would fetter the Employer’s ability to determine when in-office attendance was required. She also indicated that she was concerned that the Complainant’s requested AWA ran counter to the AWA template agreement in the AMAPCEO collective agreement. She was also concerned about the possibility of a “floodgates” whereby, in light of the somewhat “generic reasons” the Complainant provided for requesting the AWA, she would be required to approve other similar requests in the future.

113However, these concerns are either absent in the contemporaneous record before the Board, or only raised in passing. In addition, Ms. Fremlin confirmed in her cross-examination that she believed the Complainant could fulfill all the requirements of his position remotely. The only conclusion that can be drawn from Ms. Fremlin’s evidence was that she was overwhelmingly confident that the Complainant could perform all the duties and responsibilities of his position while working remotely and that the requested AWA was operationally viable for the worksite.

114One final point on the issue of the operational viability of the AWA for the worksite. The Employer called some evidence, including one of Ms. White’s initial emails, regarding a concern that granting requests such as the Complainant’s would have a negative impact on team building and cohesion.

115While, perhaps a concern, I have not given this evidence very much weight for the following reasons. First, as set out above, Ms. Fremlin’s evidence clearly established that the Complainant’s ability to work remotely outweighed any other considerations. Second, as also set out above, employees in the IDS worked in separate offices before the pandemic. In the circumstances, I am satisfied that the effect on the Complainant’s request on the operational viability of the worksite, and in particular on “team cohesion” is significantly reduced. Third, there was no evidence regarding the specific effects granting the Complainant’s requested AWA would have on team cohesion or team building. In the context of the evidence as a whole, this concern appeared to be more of a template response in the event of a requested AWA (such as the Complainant’s) as opposed to a bona fide, thought out, response to a specific request. Fourth, Article 47.3 of the Collective Agreement permits the cancellation of an AWA with 30 days’ notice. Should it become apparent that granting requests such as the Complainant’s are having a negative impact on team building and cohesion, the Employer may give notice of cancellation of the Complainant’s AWA.

c. Remedy

116For all of the reasons set out above, I am satisfied that the Employer’s response to the Complainant’s request for an AWA breached Article 47 of the Collective Agreement. The Employer did not consider, in good faith, the Complainant’s request or the operational viability of the requested AWA for the worksite.

117As set out above, the Association seeks to have the Complainant’s AWA approved. In the alternative, the Association has requested that I direct the Employer to re-assess the Complainant’s request for an AWA in a manner that complies with the Collective Agreement. The Association further requests that I direct the Employer to do so within a limited period of time. The Association suggests that two weeks would be appropriate.

118The Employer submits that if the Board finds a violation of Article 47, it would not be appropriate for the Board to grant the Complainant’s requested AWA. Doing so would effectively usurp the Employer’s authority to manage the workplace, according to the Employer. Rather, the Board should remit the matter back to the Employer so that it can consider the request once again. Remitting the matter back to the Employer is consistent with the Board’s approach in other matters where the Employer’s exercise of its discretion has been challenged.

119The Employer also submits that no time-limit should be imposed on the Employer in re-considering the Complainant’s request for an AWA. The Employer noted that imposing such a time-limit cannot be justified on the basis of the language of Article 47. Nor is there any precedent for doing so. Finally, the Employer submits that applying such a timeline could hamper the parties’ ability to meaningfully discuss the Complainant’s request.

120In the circumstances of this case I am not prepared to direct the Employer to grant the Complainant’s requested AWA. I agree with the Employer that doing so would usurp its discretion. Rather, the request should be remitted for the Employer to reconsider in a manner consistent with the Collective Agreement and this decision.

121I am also not prepared to direct the Employer to decide the Complainant’s request within a stipulated amount of time. There is no basis for such a direction at this point in time. There is no evidence that the Employer dragged its feet in anyway in considering the Complainant’s request. That being said, my hope would be that this award will provide the Employer with guidance on the factors it should consider in making its decision (and those that it should not). I would also note that in certain circumstances a failure to consider, and respond to, a requested AWA within a reasonable amount of time could be evidence of a failure to consider that request in good faith. And of course, I will remain seized of any issues arising from the implementation or enforcement of this award.

122Accordingly, and for all of the foregoing reasons, the grievance is allowed. The Employer’s conduct in declining the Complainant’s request for an AWA violated Article 47 of the Collective Agreement. The Complainant’s request for an AWA is remitted to his manager Ms. Fremlin to be considered in a manner that complies with the Collective Agreement.