GSB# 2022-4510

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 (Roffey et al)

Association

• and -

The Crown in Right of Ontario (Ministry of Children, Community and Social Services)

Employer

BEFORE

Ian Anderson

Arbitrator

FOR THE ASSOCIATION

Marisa Pollock June Mills Goldblatt Partners LLP Counsel

FOR THE EMPLOYER

Paul Meier Dimitrios Molos Treasury Board Secretariat Legal Services Branch Counsel

HEARING

February 24, April 24, August 22 and 31, and November 16, 2023

Decision

1. Article 47 of the Collective Agreement permits an employee and the employee’s manager to enter into an Alternative Work Arrangement (“AWA”), which may include an agreement that the employee will perform some or all of their work by “telework”, or, as it has come to be known, “remotely”. Prior to the COVID-19 pandemic, the Toronto Regional Office (“TRO”) of the Ministry of Children, Community and Social Services (the “Ministry”) had adopted an “office standard” which permitted employees to work up to three days per week remotely. During the pandemic, the TRO had advised employees that upon the return to the workplace following the pandemic, the office standard would be changed to permit employees to work up to four days per week remotely.

2. On March 1 and 16, 2022 the Employer issued memos with respect to the upcoming return of the Ontario Public Service (“OPS”) workforce to the workplace following the lifting of COVID-19 related restrictions (collectively, the “Memos”). Each of the Memos:

(i) Stated that as of a certain date “employees working remotely should expect to return to the workplace for a minimum of three days per week.”

(ii) Stated that “This does not replace any existing alternate work arrangements in place prior to the pandemic.”

(iii) Made reference to the OPS’s commitment to “flexibility” and directed employees to “connect with your manager to discuss what returning to the workplace could look like for you”.

3. The TRO interpreted the Memos as permitting it to continue with an office standard of up to three days per week of remote work (i.e. a minimum of two days per week in the workplace, rather than the three set out in the Memo) as this constituted an existing alternate work arrangement in place prior to the pandemic. The increase of the office standard to four days per week of remote work, on the other hand had been announced during the pandemic, and thus, in the view of the TRO, did not qualify. Accordingly, the TRO advised its staff that the announced increase to the office standard would not be implemented upon their return to the workplace.

4. The Association’s position is that the reversal of the TRO’s announced decision to increase the office standard was a direct result of the Memos. The Association argues that Article 47 contemplates that decisions with respect to remote work will be made by “local” management and that the Memos constitute an impermissible fettering of that discretion. The Association seeks an order directing the Employer to implement the announced office standard of four days per week of remote work.

5. The Employer responds that the creation of an “office standard” with respect to the structure of work is a pure exercise of its management rights recognized by Article 3 and not subject to arbitral review. While conceding that Article 47 confers a discretion upon managers with respect to whether or not to grant an AWA, the Employer argues that discretion was not fettered by the Memos. Rather the Memos expressly recognized the ongoing discretion of managers to grant AWAs.

6. The Association replies that on the evidence, it is clear that the discretion of managers was fettered by the Memos.

7. For the reasons which follow, in my view the establishment of an “office standard” is an exercise of management rights. The exercise of those management rights is, however, subject to any restrictions in the Collective Agreement. Article 47 is such a restriction. Accordingly, while the Employer may direct its managers always to grant a request for days of remote work up to an office standard, the Employer may not fetter the discretion conferred upon managers by Article 47 to consider requests for days of remote work in excess of such an office standard. On the evidence, I find that whether or not the Memos fettered the discretion afforded managers by Article 47, the TRO’s interpretation of those Memos did: the TRO effectively directed its managers not to consider a request for an AWA for more than the office standard of three days per week of remote work. Accordingly, the TRO is directed to advise its managers that they must in good faith consider requests for AWAs in excess of the office standard. I decline, however, to order the TRO, or the Employer, to adopt an office standard of four days per week of remote work.

Collective Agreement Provisions:

8. The Collective Agreement provisions at the core of the parties’ dispute are as follows:

ARTICLE 3 - MANAGEMENT RIGHTS

3.1 Subject only to the provisions of this Agreement, the right and authority to manage the business and direct the workforce, including the right to hire and lay-off, appoint, assign and direct employees; evaluate and classify positions; discipline, dismiss or suspend employees for just cause; determine organization, staffing levels, work methods, the location of the workplace, the kinds and locations of equipment, the merit system, training and development, appraisal; and make reasonable rules and regulations; shall be vested exclusively in the Employer.

ARTICLE 47 - ALTERNATIVE WORK ARRANGEMENTS

47.1 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 his or her 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.

47.2 Arrangements related to compressed work week, flexible hours and job sharing entered into by an employee and his or her immediate supervisor shall be adjusted and amended to reflect the provisions of Article 46.2 with necessary modifications. The parties’ intent is that compensating leave would apply, in accordance with Article 46 as modified to address particular hours of work arrangements.

47.3 Where a manager seeks to cancel or amend an AWA, the manager shall provide notice to the affected employee(s) in writing at least one (1) month prior to the proposed cancellation or amendment.

47.4 Each AMERC shall enter into a reporting process on the current status of AWAs in the ministry, including identifying the number of AWAs that:

a) are currently in existence in worksites,

b) have began in worksites within a mutually agreed upon period of time,

c) were cancelled in worksites within a mutually agreed upon period of time, and

d) were denied in worksites within a mutually agreed upon period of time.

The results of such reports may also be discussed at ACERC.

47.5 All template agreements attached to the Letter of Understanding re Alternative Work Arrangements, including any local or other variations, must be approved and signed by the Director, Centre for Employee Relations and the AMAPCEO President or their designees, before taking effect.

Facts

9. While I expand on some facts later in this decision, the chronology is as follows.

10. In 2018, as part of an OPS-wide initiative, the Ministry introduced its Dynamic Workplace and Flexible Work Strategy (“DWFWS”). The DWFWS was “about leveraging flexible solutions across the four enablers of success: space, technology, behaviours and alternative work arrangements”, or AWAs. Possible AWAs included a Compressed Work Week (often referred to as a “CWW”), Flexible Hours of Work (“FHW”) and/or “Telework”, which subsequently became known as remote work. All Regions, including the Toronto Region, partnered with the Ministry’s HR Strategic Business Unit (“SBU”), Business Planning and Corporate Services Division, to develop their own Dynamic Workplace Strategy as part of a broader Ministry DWFWS.

11. On November 30, 2018, Kevin Pal, then Director of the TRO of the Ministry, announced the launch of the DWFWS for staff in the Toronto Regional Office (the “Toronto Regional Strategy”). A November 30, 2018 Memo from Pal noted that “we will be initially limiting telework to two days per week for each participant.” Participation was also limited to certain positions. A document entitled “Flexible Work Strategy for Toronto Regional Office - 375 University Avenue" distributed to staff at that time stated in part:

Purpose:

This document has been developed to provide guidelines to support staff and managers with the implementation of the Flexible Work Strategy at the Toronto Regional Office – 375 University Avenue. All requests to participate in flexible work arrangements will be considered on a case-by-case basis and will be evaluated on their own merits. As such, there may be variations to these guidelines based on individual circumstances.

Considerations:

• Flexible work arrangements are:

• contingent on operational considerations, employee needs and position criteria, which is subject to management approval;

• voluntary and discretionary;

• not suitable for every type of job;

• a privilege, not a right;

• separate from employment accommodation.

A document entitled “Telework for Toronto Regional Office - 375 University Avenue” was also distributed to staff at that time.

12. In April 2019, the TRO expanded the Toronto Regional Strategy to include other positions.

13. In the fall of 2019, Human Resources Strategic Business Unit conducted surveys on the Toronto Regional Strategy, and received responses from 49 staff, representing 58% of the active regional workforce at the time.

14. On February 18, 2020, Pal issued a further memorandum to TRO staff. The February 18, 2020 memorandum indicated that management had reviewed the fall 2019 survey results and decided to implement changes to the Toronto Regional Strategy. One of the announced changes to the Toronto Regional Strategy was increasing the number of telework days available from two days to three days per week. The Association relies on the evidence in relation to the surveys in support of its argument that decisions about AWAs are to be made at a local level.

15. Shortly after the announced changes, the COVID-19 pandemic resulted in the closure of the workplace and all staff were required to work remotely 5 days a week.

16. On October 14, 2020, Pal issued another memorandum to TRO staff. The October 14, 2020 Memorandum stated:

… I am pleased to advise that the Dynamic Workplace Strategy will be expanded further upon our eventual return to work and that the telework option will be available to all staff, regardless of their position, for up to four days per week as a standard. This may be adjusted further on a case-by-case basis based on individual circumstances and accommodation needs.

Please note that new agreements are not required at this time but will be necessary once the plans for a return to the workplace are in place.

17. Pal attached two documents to his October 14, 2020 Memorandum: the “Flexible Work Strategy for Toronto Regional Office - 375 University Avenue” and “Telework for Toronto Regional Office- 375 University Avenue”. These were updated versions of documents which had previously been provided to staff with Pal’s November 30, 2018 Memo. The revised “Telework” document contained the following statement:

• Employee participation in telework is strictly voluntary. Interested staff may request to participate and management shall review the request on its own merits, and on an individual, case-by-case basis, based on the operational needs of the work unit.

• Telework is open to all regular and fixed-term staff and, like all flexible work arrangements, is a privilege not a right. Flexible work is contingent on operational considerations, employee needs and position criteria, and is subject to management approval.

• Generally, telework days will not exceed four days per week at the alternative work location, but may be decreased at the request of the Employee or the Employer with reasonable notice. The number of days available will be reviewed by the Employee and their Manager and may be adjusted on a case by case basis based on individual circumstances and accommodation needs.

• Telework arrangements must be mutually agreed-upon by an employee and their manager, per the terms outlined in the appropriate bargaining agent agreement, with the ability for either party to terminate the arrangement on thirty (30) calendar days’ written notice or earlier by mutual agreement.

• Staff may request to participate in other flexible work arrangements, such as Compressed Work Week schedules, while participating in telework.

[Emphasis in original.]

18. On January 28, 2021, Pal sent a memo to all TRO staff. The memo indicated that in view of the pandemic “Telework agreement renewals are not required at this time”:

As you are likely aware, the terms of our existing Dynamic Workplace & Flexible Work Strategy agreements are for no more than a twelve-month period and our existing signed templates expired on December 31, 2020.

As such, it is now time to renew the agreements for both Compressed Work Week and Flexible Hours of Work schedules. Given the circumstances of the pandemic, Telework agreement renewals are not required at this time, however the Health and Safety Checklist is to be completed and resubmitted by all staff.

19. In October, 2021 Sherri Rennie assumed the position of Toronto Regional Director. In October, 2021, TRO staff were also provided with the “Gradual Reopening of Workplaces” (“GROW”) Plan for 375 University Avenue. The GROW Plan provided:

[As of] November 1, 2021 (Phase 3): All OPS employees who have been working remotely will complete the shift to a flexible model, where all employees will attend the workplace, in accordance with public health guidance, ministry plans and local workplace protocols.

20. In November 2021, Ministry staff returned to the office one day per week. The Employer argues the evidence shows that this was a result of the GROW Plan, not any AWAs. The Association argues whether it was the result of the GROW Plan or AWAs is irrelevant. In any event, there is no dispute that by December, 2021, as the Omicron wave of the pandemic took hold, staff returned to working five days a week at home.

21. On March 1, 2022, Michelle E. DiEmanuele, Secretary of the Cabinet (the “SOC”) and Head of the OPS, issued a Memorandum to all OPS Staff on the subject “Update on the OPS Return to Workplace Plan”. The March 1, 2022 Memo noted marked improvements in relation to COVID-19. It continued in part:

[As of] Monday, April 4, 2022, employees working remotely should expect to return to the workplace for a minimum of three days per week. This does not replace any existing alternate work arrangements in place prior to the pandemic.

We remain committed to providing employees with flexibility. I encourage you to connect with your manager before Monday April 4 to discuss what returning to the workplace could look like for you.

[Emphasis supplied.]

22. Rennie consulted with the SBU to see whether the statement in the March 1, 2022 Memo that it “does not replace any existing alternate work arrangements in place prior to the pandemic” would permit the TRO to go forward with four days per week of remote work as the office standard. In particular, the TRO was seeking clarification as to whether that statement referred only to AWAs which existed prior to the pandemic, for which the office “standard” was three days of telework per week, or whether it extended to the change to four days of telework per week following return to the workplace announced during the pandemic in Pal’s memo of October 14, 2020.

23. On March 8, 2022, Rennie issued a memo to the staff of the Toronto Region on the subject of “Return to Workplace”.

Further to the Secretary of the Cabinet’s memo on March 1, 2022 announcing a return to the office starting on April 4, 2022, the Regional Management Team (RMT) is working to shape what our return to the workplace plan will look like. As demonstrated by the successful rollout of Toronto Region’s Gradual Return to the Workplace plan in November 2021, we have a strong foundation to build upon to ensure a flexible and safe return for all staff. Per the SOC memo, Toronto Region’s existing Dynamic Workplace and Flexible Work Strategy will continue to apply.

In chief, Rennie testified that the statement “Toronto Region’s existing Dynamic Workplace and Flexible Work Strategy will continue to apply” was a reference to the flexible work concepts contained in that document, stating that the DWFWS did not specify the number of days or hours of permissible telework. In cross, she stated that at the time the TRO management team was seeking clarity as to whether or not the previously announced movement to up to four days a week of telework upon the return to the workplace would be considered an “existing alternate work arrangement” for the purposes of the SOC’s March 1, 2022 Memo. Accordingly, in her communication with staff she did not want to give the impression that four days had been confirmed.

24. On March 16, 2022, the SOC issued a further Memorandum to all OPS Staff. The March 16, 2022 Memo pushed back the date on which employees were expected to be in the workplace a minimum of three days per week and modified some of the statements in the March 1, 2022 Memo. It stated in part:

Further to the all-staff memo on March 1, 2022, we met with and heard from employees and managers, as well as Bargaining Agents. The continued feedback and advice has been very helpful.

To respond to the feedback and the new context, and to give employees time to respond to this changing environment and to make caregiver and other arrangements, we have made the following adjustments:

• beginning April 4, staff who have been working remotely will attend the workplace 1 to 2 days a week (rather than 3 days); and,

• beginning May 16, staff who have been working remotely will attend the workplace a minimum of 3 days a week.

By September 2022, we will land on our comprehensive plan for the future of work that includes types of work that can be done on site, at home offices and on a mobile basis.

This direction does not replace any existing alternate work arrangements or accommodations.…

The OPS remains committed to providing flexibility to employees as remote workers reintegrate into the physical workplace. This could mean attending an alternate workplace, staggered hours (for example, to allow for non-peak-time commuting or to align with childcare commitments). It could also mean averaging your days in the office over a two-week period. Managers can continue to offer flexibility and use discretion in responding to individual employee circumstances. We encourage you to connect with your manager to discuss what returning to the workplace could look like for you.

Notably, while the March 1, 2022 Memo from the SOC indicated that the requirement of a minimum of three days a week in the workplace did not replace “any existing alternate work arrangements in place prior to the pandemic”, the March 16, 2022 Memo indicated the direction did not replace “any existing alternate work arrangements” without the reference to “prior to the pandemic”.

25. Rennie testified that in further discussions with the SBU it was “clarified” that the SOC’s reference to existing AWAs was a reference to AWAs which existed prior to the pandemic. For the TRO, Rennie testified, this meant that it was a reference to the three days per week of telework office standard which pre-dated the pandemic, not the anticipated four days per week of telework as an office standard announced by Pal on October 14, 2020 during the course of the pandemic. Accordingly, she announced to staff of the TRO that the up to four days a week telework option previously announced by Pal would not be implemented. Rather, the telework option would be limited to three days a week, as it had been prior to the onset of the pandemic. Staff were advised of this during all-staff meetings on March 24, April 6 and 20, 2022. The speaking notes used for those meetings stated in part:

• As you know, we received the memo from the Secretary of the Cabinet on March 16th, with the government’s plan for OPS staff working remotely to return to the workplace after two years of the pandemic and I know that you’re working through a lot of mixed emotions, as everyone prepares for their return to the office for the week of April 4th and beyond.

• I want to confirm that we will continue to have a Dynamic Work Strategy in Toronto Region whereby staff are able to participate in Compressed Work Week, Flexible Hours and Telework. The Dynamic Work Strategy will continue to be available to all groups of staff.

• However, there will be a one day adjustment made to the number of days working from home. Our telework days, prior, were not to exceed four days per week, but it has now been modified to not exceed three days in order to come into alignment with the Ontario Public Service’s plan to return to the workplace. Starting the week of May 16, as per the OPS plan, all staff will be working a minimum of 2 to 3 days in the workplace.

• The 2 to 3 days per week is aligned with the broader enterprise approach, pre-pandemic and allows each staff to work remotely a 2-3 days per week where operational requirements can be met.

26. On April 6, 2022, at an all-staff meeting, management announced a 3-day telework option as the “office standard”. Speaking notes for that meeting state in part:

• I hope you’ve taken the time to review the Return to the Workplace document. It’s a living document that will be reviewed and revised as plans evolve to adapt to any changes in accordance with public health guidance, ministry plans and local workplace protocols.

• I recognize the one day adjustment made to the number of days working from home coming into effect on May 16th, 2022 may be challenging for some and welcomed for others. As part of MCCSS, we are aligning with Ontario Public Service’s plan in regards to returning to the workplace.

27. Also on April 6, 2022, 46 staff members of the TRO signed a letter to Rennie, laying out the history of the Toronto Regional Strategy, reminding her that the SOC’s Memo stated that the direction was not meant to “replace any existing alternate work arrangements in place prior to the pandemic”, and advising her that their expectation was that the Toronto Region would honour the Toronto Regional Strategy.

28. On April 20, 2022, Rennie informed members that the TRO was not implementing the previously announced up to 4-day telework option. Management speaking notes from the April 20, 2022 meeting state in part:

• All Alternative Work Arrangements are voluntary and discretionary, and are subject to change with notice, based on organizational direction and operational needs.

• During the pandemic, agreements were put in place that allowed staff to work from home up to four days per week. As part of the province’s reopening, the OPS direction is that we will be transitioning back to the workplace more frequently.

• Agreements remain in place and are amended to allow for working remotely up to two to three days per week.

• Our employer made this decision - it's not just for our office, or our ministry, it's not limited to bargaining agent staff, it includes all OPS employees, managers, directors… including me.

• I know many of you are disappointed with this direction, and that for some of you it means having to change child care plans, arrangements for other family members, and commuting routines. This may be disruptive, particularly in the short term, as you are working out new arrangements.

• This direction has been set as part of reopening our workplaces after more than 2 years of forced closures during a global pandemic. The province is rebuilding our workplaces, after a very difficult period, and reestablishing onsite connections is part of that work.

• I want to be clear, this new direction is not reflective of how we have been performing. As I have commented many times previously, we have more than demonstrated our ability to continue to deliver effectively from remote locations. I know we will all continue to provide great service to our clients, regardless of where we happen to be working on any given day.

29. Rennie testified that while she had expected that the TRO would permit four days a week of telework upon the reopening of the workplace, the SOC’s March, 2022 Memos, limiting telework to three days per week, had set out a “vision” for the entire OPS. The TRO is part of the OPS, and therefore that vision applied to it. The OPS was the “our employer” referenced in the April 20, 2022 speaking notes. Accordingly, TRO staff were advised that AWAs were considered amended to permit two or three days of telework per week.

Evidence With Respect to the Named Complainants

30. The Association filed a group dispute on May 10, 2022. It grieves the Employer’s blanket denial of the 4-day telework option at the TRO. The Association asserts that in doing so the Employer violated Article 3 and 47 of the Collective Agreement. There were 22 named Complainants.

31. Between February 20 and February 28, 2020, seven of the Complainants entered into telework AWAs with their managers up to the office standard (three days), including Complainant Roffey. Another three Complainants, had entered into formal telework agreements in 2019 (or late 2018). None of these 10 Complainants had telework AWAs that exceeded three telework days. The remaining 9 Complainants had not started in their current roles with the Toronto Region until 2021 (well into the pandemic) and none of them had entered into any telework AWAs with their managers. Public health measures related to the pandemic required all of the Complainants to work remotely 5 days per week until March, 2022.

32. Rennie’s evidence in chief was that on April 28, 2022, one of the Complainants requested an AWA providing for four days a week telework. The Complainant met with her manager. Following that meeting, on May 10, 2022, the manager approved three days a week telework and a compressed work week arrangement for the Complainant. On May 12, 2022 (which I note post-dates the grievance) another Complainant made a request for compressed work week hours during her three telework days. That Complainant did not request four days a week of telework. Rennie stated (at para. 51 of her Declaration):

While I am aware that some of the Complainants (and other staff) may have expressed dissatisfaction with the decision to implement up to 3 telework days as our office standard, I am also aware that many of the Complainants did not make any specific requests for any other arrangement based on their individual circumstances (including additional telework days) or provide any rationale for any such “non-standard” arrangement. Again, if Toronto Region staff did make requests to my managers, my managers would consider the requests on their own merits (and would consult with HR regarding individual circumstances, if required).

33. Director Rennie also declared that she was aware of “temporary telework AWAs in excess of three telework days per week in the Toronto Region”. She gave as an example one Association represented employee¹ who requested a temporary 5 telework-days-per-week arrangement in order to avoid exposure prior to a vacation in May 2022. Rennie stated at (para. 52 of her Declaration):

The manager considered the merits of the employee’s request and entered into a mutually agreeable arrangement based on the employee’s individual circumstances.

34. Director Rennie’s Declaration concluded with the statement (at para. 54):

I will say that my management team has and will continue to offer flexibility and use discretion in responding to individual employee circumstances.

The Employer argues this statement was “untouched” in cross-examination.

Argument for the Association

35. The Association argues that Article 47 serves to modify the management rights conferred upon the Employer by Article 3. Article 47 contemplates that AWAs will be entered into at a local level, between an employee and his or her manager having regard to local operational considerations. The Association notes the roll out of the Strategy was done on a regional basis, reflecting local operational concerns. In particular, the Association traces the roll out of the Strategy in the Toronto Region, and argues that it showed careful attention to local operational considerations. It argues local managers played a key role in that process.

36. The Association notes that while the commitment to increasing remote work opportunities predated the pandemic, the pandemic compelled the Employer to address challenges arising from remote work.

37. The Association notes that the October 14, 2020 memo from Pal indicated that “the telework option will be available to all staff, regardless of their position, for up to four days per week as a standard”. The Association relies upon the evidence of Rennie that this meant that all a staff member had to do was “put their hand up”, and they got four days per week. It argues that the presence or absence of actual requests for an AWA is therefore irrelevant.

38. The Association argues the evidence establishes that up until the time of the SOC’s March 1, 2022 Memo, the Toronto Regional Director assumed the plan to implement the option of up four days a week of telework would be in place upon the return of the Toronto Region staff to the workplace.

39. The Association refers to the consultations in which the Toronto Region Director engaged prior to issuing her March 8, 2022 Memo to staff. The Association argues the evidence shows the Toronto Region Director was attempting to ensure that the position of the Toronto Region was consistent with directives from the SOC. The Toronto Region Director, the Association argues, had a “two employer” approach to the continuation of AWAs in the Toronto Region: what she, and the local mangers in the Toronto Region, viewed as appropriate; and what the Employer writ large considered appropriate. The Association argues there is only one employer, but for the purposes of AWAs under the Collective Agreement the authority to make decisions has been allocated to local managers. Accordingly, it was inappropriate for the Toronto Region Director to attempt to ensure that the Toronto Region was acting in accordance with directives from the SOC.

40. The Association argues that this two employer dichotomy is also apparent from Director Rennie’s April 20, 2022 speaking notes. In particular, the statement:

• I want to be clear, this new direction [requiring staff to be in the work place a minimum of two days a week] is not reflective of how we have been performing. As I have commented many times previously, we have more than demonstrated our ability to continue to deliver effectively from remote locations. I know we will all continue to provide great service to our clients, regardless of where we happen to be working on any given day.

41. The Association then reviews the Collective Agreement. It notes that some provisions reference “OPS-wide”, some “Ministries”, some “the Ministry” and some “the manager”. The AWA provision, Article 47, references “the manager”. Further, the model agreement attached to the “Letter of Understanding re: Alternative Work Arrangements”, which is dated October 18, 2012 but remains part of the applicable collective agreement, contemplates that it is to be signed on behalf of the Employer by a “Ministry Official”. It is clear, therefore, that AWAs are the responsibility of the Ministry, not the Employer writ large. This is consistent with the fact that Article 47 provides that in considering an AWA, the manager is to consider “the operational viability of the AWA for the work site”, which is inherently local.

42. The Ministry, and in particular the TRO, adopted an office standard of up to four days per week of telework after careful consideration of local conditions. It was to have come in to effect upon the return to the workplace, post pandemic. This office standard was lost as a result of the SOC’s OPS-wide memos.

43. In response to questioning, the Association agrees it is not inappropriate for the Employer to issue guidelines for the exercise of the discretion afforded managers by Article 47. The “office standard” referenced in the memos of the TRO could be seen as such a guidelines. The Toronto Region memos would, however, have been problematic had they instructed managers never to agree to an AWA which provided for more telework days per week than established by the office standard. The SOC’s memos mandating three days in the office, absent a pre-existing AWA, did not constitute a guideline with respect to the exercise of discretion by manager under Article 47. Rather, on the evidence, the SOC’s memos were issued as an absolute rule. They “usurped” the discretion conferred on local managers by Article 47. There was no evidence as to how the SOC arrived at the three days in the office rule and in particular no evidence that the decision included consideration of local conditions.

44. Where a discretion is conferred by the collective agreement, it must be exercised in good faith. A blanket rule which fetters that discretion is a violation of the collective agreement. Reference is made to: PEGO v The Crown in Right of Ontario, 2016 CanLII 7448 (ON GSB) (Herlich); Toronto District School Board and CUPE (Hamilton), Re, 2016 CarswellOnt 7214, 127 CLAS 73 (Steinberg); St. Joseph’s General Hospital Elliot Lake v ONA, 2008 CarswellOnt 10140, [2008] O.L.A.A. No. 46, 170 L.A.C. (4th) 115, 92 C.L.A.S. 272 (Sheehan); Ontario (Workplace Safety and Insurance Board) and CUPE Local 1750, Re, 2015 CarswellOnt 6712, 23 C.L.A.S. 32, 255 L.A.C. (4th) 223 (GSB) (Harris); OPSEU (Mailloux) v. Ontario (MCS), GSB# 0087/88, (M. Picher).

Argument for the Employer

45. The Employer argues the announcement of an office standard of fours day per week of telework to be effective upon the return to the workplace and the subsequent amendment of that office standard prior to the return to the workplace to three days per week of telework was part of a “management strategy”, and is not part of the Collective Agreement. The right to remote work, the Employer argues, is not enshrined in the Collective Agreement. The strategy itself was not a “rule”. As such, the Employer argues, the amendment of the office strategy was simply an exercise of management’s right to structure work and is not in any way reviewable by an arbitrator. Article 47, the Employer argues, does not qualify management’s right to establish or modify an office standard. Further, Article 47 does not dictate which level of management may do so. Accordingly, it is not engaged. Further, there is no basis for the remedy requested: the restoration of an office standard of four days per week of telework.

46. The Employer argues there is no evidence of a blanket rule which fettered the discretion conferred upon managers by Article 47. The Employer notes in this respect that while the SOC’s March, 2022 memos provided for three days of work in the workplace, and thus contemplated no more than two days per week of telework, the TRO’s amended office standard provided for three days per week of telework. The Employer notes Rennie’s evidence that if requests for more telework days per week had been made, her managers would have considered those requests on their own merits. The Employer argues this evidence was “untouched” in cross-examination. Further, the Employer argues, there is no evidence that any of the complainants ever requested four days per week of telework. There is, therefore, no prima facie case.

47. The Employer notes Pal’s October 4, 2018 memo, which launched the Toronto Regional Strategy, indicated that the goal was to achieve optimal performance and results. What was required to accomplish this was a determination made by the Employer in the exercise of its management rights. At that time, the Employer determined this would be accomplished by permitting up to two days per week of telework by employees in select positions. This determination was made by Pal in his capacity as Regional Director. He was, in the Employer’s submission, the right level of management to make this determination. In doing so, he was exercising the management rights recognized in Article 3 of the Collective Agreement. The exercise of that right, the Employer submits, was not qualified by Article 47.

48. The Employer notes that Article 47 commences: “The OPS supports flexible work arrangements ….” This is a reference to the Employer writ large. The Employer argues that Article 47 does not create a substantive right to any particular type of flexible work arrangement, and specifically does not create a right to telework or remote work. Further, the Employer argues, Article 47 does not dictate which level of management can determine flexible work arrangements. The determination of whether to adopt a flexible work strategy in a given Ministry or Division, for example an across the board four days per week compressed work week, remains a management right. Article 47 does not preclude that exercise of management rights to “structure the workplace” or adopt a given “work strategy”. The adoption and modification of a TRO “office standard” with respect to the number of days per week of telework is simply an exercise of the management right to structure the workplace. The last sentence of Article 47.1 permits an employee to request an individual work arrangement which departs from the “office standard”.

49. The Employer notes that all of Pal’s memos with respect to the office standard referred to the ability of an employee to make such a request. Further, the Employer argues that the SOC’s March, 2022 memos directing employees to work at the work place three days per week did not state that managers had no discretion to consider a request to work more days per week from home. Indeed, Rennie did not simply follow the SOC’s directive, but rather changed the Toronto Region “office standard” to three days per week of remote work, that is two days per week work in the workplace, not the three set out in the SOC’s memos. None of the complainants ever had an AWA which provided for four days per week of remote work, so, contrary to the argument of the Association, none of them lost anything as a result of this change to the office standard.

50. For the proposition that an arbitrator has no free standing jurisdiction to review the exercise of management rights, reference is made to: OPSEU (Dobroff et al.) v. Ontario (MOE), 2008 CanLII 19779 (ON GSB) (Dissanayake). For the proposition that the determination of whether or not to permit remote work is a management prerogative, reference is made to; Central West LHIN and Mississauga Halton LHIN v. C.U.P.E., Local 966, 2023 CanLII 58388 (ON LA) (Goodfellow); Alectra Utilities Corporation v. Power Workers’ Union, 2022 CanLII 50548 (S. Stewart). For the proposition that in the absence of a provision in the collective agreement, in the exercise of its management rights an employer is not prohibited from adopting a blanket rule, reference is made to: United Parcel Service Canada Ltd. v. Teamsters, Local 141, 1981 CanLII 4389 (ON LA), 1981 CarswellOnt 2035 (Burkett).

51. The Employer argues the reference to “mutual agreement” in the second sentence of the second paragraph of Article 47 does not oblige the Employer to depart from the office standard which it has established and adopt a different office standard or enter into an AWA with an employee. Reference is to OPSEU (Sutherland) v. Ontario (MOL), 2008 CanLII 70535 (ON GSB) (Dissanayake); OPSEU (Glenny) v. Ontario (MGS), GSB #317/83, October 17, 1983, (Roberts); OPSEU (Ropars) v. Ontario (MGS), GSB #400/84, July 2, 1985, (Jolliffe); OPSEU (Algerson) v. Ontario (MGS), GSB #1942/87, April 15, 1988 (Watters).

52. The Employer then turns to the third sentence of the second paragraph of Article 47.1: “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.” The Employer acknowledges that this sentence fetters its discretion, but it argues it does so in a limited way. The Employer cannot preclude a request for an AWA from any group of employees or have a policy saying it will not consider such a request in good faith. The Employer argues, however, that neither of those things happened here. No request was made by any of the complainants for an AWA providing for four days per week of telework; the SOC memos did not preclude a four days per week telework AWA; on the contrary they directed managers to exercise their discretion. There were no existing four days per week of telework AWAs which were “jettisoned” by the Toronto Region’s management communications to employees following the SOC memos. The Employer argues the PEGO decision cited by the Association is distinguishable on that basis. Rennie’s evidence was that at all times she emphasized TRO managers would continue to exercise discretion with respect to AWA requests.

53. The Employer argues the onus was on the Association to prove a request was made: OPSEU (Mailloux) v. Ontario (MCS), GSB# 0087/88, (M. Picher). It argues there is no obligation on the Employer until such a request was made, citing: AMAPCEO (GAM) v. Ontario, 2017 CanLII 65624 (ON GSB) (Herlich); Stewart v. Canadian Nuclear Safety Commission, 2017 CarswellNat 8496, 2017 CarswellNat 8497, 2018 FPSLREB 8, 2018 CRTESPF 8, 134 C.L.A.S. 241 (Chankarsingh); and Renfrew (County) District School Board v. E.T.F.O., 2000 CarswellOnt 9399, [2000] O.L.A.A. No. 967, 63 C.L.A.S. 76 (Goodfellow). Further it argues the fact that the matter before me is a group grievance (or “Group Dispute”, to use the nomenclature of the Collective Agreement) does not change the Association’s onus or the Employer’s obligations. Prior to the Employer having an obligation with respect to a given member of the group, the Association is required to prove a request was made by that member. Reference is made to: Premier Wire Ltd. and USW, Re, 2009 CarswellOnt 10397, [2009] O.L.A.A. No. 406, 99 C.L.A.S. 21 (Roach); OPSEU (McGann et al) v. Ontario (MAG), (2022), 2023 CanLII 89646 (ON GSB), (Anderson); and PEGO, op cit.

54. The Employer concedes that if it had made a statement saying it will not consider a request for more than three days per week telework, that would have been a breach of Article 47. Further, the Employer concedes that if there were a policy which said in effect “don’t bother making a request”, then a request would not need to have been made in order to establish a breach. It maintains, however, those are not the facts of this case.

55. The Employer argues the cases cited by the Association are all distinguishable on the basis that they were concerned with the improper fettering of a discretion conferred under a collective agreement with respect to requests made by employees. In the case before me, the Employer argues, there was no fettering of discretion and no evidence of requests being made by employees.

56. Reference was also made by the Employer to: Chatelaine Villa Nursing Home v. CUPE, Local 2369, 1990 CarswellOnt 4365, 18 C.L.A.S.391 (Whitehead).

Reply for the Association

57. The Association argues that the evidence established that but for the SOC’s memos, those who requested four days per week of remote work would have been granted it. Further, the Association argues the evidence establishes Pal’s announcement that the office standard would be four days per week of remote work was made after a detailed study of the operational requirements. Therefore, the Association argues, this is not a situation in which I “need to guess at what would have happened” but for the SOC’s memos. On the evidence, employees requesting four days per week would have been granted it.

Analysis and Decision

58. Article 3.1 of the Collective Agreement states in relevant part:

Subject only to the provisions of this Agreement, the right and authority to manage the business and direct the workforce, including the right to … determine organization, staffing levels, work methods, the location of the workplace … shall be vested exclusively in the Employer.

I agree with the Employer that this provision permits it to adopt, to use its terms, “management strategies” or “work strategies” with respect to the “structure of the workplace”. The office standards in question can be seen as such. The Employer’s right to do so, however, as expressly recognized in Article 3.1 itself, is subject to other provisions of the Collective Agreement. In the case before me, the Association does not advance a free standing challenge to the exercise of management rights by the Employer. Rather, the Association argues that Article 47 provides a limit on the Employer’s management rights under Article 3.1. I agree. The issue between the parties is the extent of that limit.

59. 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 his or her 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.

60. The Association argues this language requires any “office standard” be established at a “local” level, which it describes as extending as far as the Ministry level but not beyond. I disagree.

61. The first paragraph of Article 47.1 refers to the support of the “OPS” for flexible work. It indicates the purpose of flexible arrangements is, in part, to demonstrate the commitment of the “Employer” to being a modern employer. Neither the reference to the “OPS” nor the reference to the “Employer" is Ministry or “local” specific. Nor, does the first paragraph, in itself, give rise to any enforceable obligations on the part of the Employer.

62. The second paragraph of Article 47.1 refers to Alternative Work Arrangements, or AWAs. I note that an AWA is a form of flexible work and a means by which the Employer can demonstrate its commitment to being a modern employer, as contemplated by the first paragraph. Unlike the first paragraph of 47.1, the second paragraph does contain an obligation which may be enforced by the Association against the Employer. It provides: “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.” The obligation is to consider a request in good faith. Further, the obligation is imposed on the employee’s “manager”, not some other “local” level of management as postulated by the Association.

63. The obligation created by Article 47.1 relates to individual requests. Nothing in Article 47.1 requires the Employer to adopt an “office standard” or maintain one which it has previously adopted or announced. Further, if the Employer decides to adopt or change an office standard, Article 47.1 does not require this decision be made at a “local” level. Decisions with respect to office standards are not made pursuant to Article 47.1. Rather, if made, they are an exercise of management rights under Article 3.1.

64. At the same time, while the Employer can exercise its management rights to adopt an office standard with respect to the number of remote work days per week, any such office standard cannot conflict with other provisions of the collective agreement, in this case the discretion conferred upon managers by Article 47.1. In discussing this limit on management rights, it is helpful to distinguish between office standards which remove discretion and those which do not. I will refer to the former as “directions” and the latter as “guidelines”.

65. In my view, the Employer can issue a direction to its managers to agree to a request under Article 47.1 by an employee for up to a specified number of remote work days per week. That is what the office standards in issue in this case appear to have done (although there was some suggestion that a manager retained the ability to decline a request if the employee had performance issues). Arguably, in doing so the Employer is removing the discretion conferred upon the employee’s manager by Article 47.1. While not before me, and notwithstanding whatever umbrage a manager may feel as a result, this loss of discretion would not appear to give rise to an arbitrable complaint that the Employer has breached the rights of the Association or the employees it represents under the Collective Agreement. It may even be the case, as the Employer argued in relation to a compressed work week, that it can issue a direction which imposes an office standard on all employees in a workplace, creating in effect a new normal for the workplace. Such a direction, of course cannot conflict with other provisions of the Collective Agreement, but in any event the issue is not before me, and I express no opinion on it. What the Employer cannot do through an office standard, however, is issue a direction which removes the obligation of a manager under Article 47 to consider in good faith a request by an employee for an alternative which differs from the office standard, in this case with respect to the number of days per week of “telecommuting/telework”, to use the term set out in Article 47.

66. The Employer can, however, issue guidelines to managers with respect to factors relevant to such requests. Any such guidelines must be consistent with the provision in the Collective Agreement granting discretion, in this case Article 47. Indeed, it may be prudent for the Employer to do so in order to ensure consistency across managers and compliance with the fourfold test first set out in Kuyntjes and Ministry of Transportation and Communications (1984), GSB No. 513/84 (Verity):

67. The decision must be made in good faith and without discrimination.

68. It must be a genuine exercise of discretionary power, as opposed to a rigid policy adherence.

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

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

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 AWA 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.

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.”

68. 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.

69. The Employer argues managers retained the discretion to consider an AWA for more than the office standard, or at least there is no evidence to establish that they would not have exercised such discretion if a request had been made. The Association argues the evidence establishes the discretion was removed. The dispute between the parties is one of fact. Accordingly, I turn to a closer review of the evidence on this point.

70. Pal’s October 14, 2020 memo announcing the further expansion of the Toronto Strategy stated in part:

As a result of the quick ability of staff to welcome and adopt these necessary changes, I am pleased to advise that the Dynamic Workplace Strategy will be expanded further upon our eventual return to work and that the telework option will be available to all staff, regardless of their position, for up to four days per week as a standard. This may be adjusted further on a case-by-case basis based on individual circumstances and accommodation needs.

[Emphasis in original.]

71. The SOC’s March, 2022 Memos both state “staff who have been working remotely will attend the workplace a minimum of 3 days a week” (my emphasis). The Memos go on to state: “This direction does not replace any existing alternate work arrangements or accommodations.…” (again, my emphasis). The clear inference is that managers cannot approve new alternate work arrangements which provide for three or more days per week of remote work. The Memos were sent to all members of the OPS. As Rennie testified, the TRO is part of the OPS as a whole and thus subject to the “vision” for the OPS set out in the SOC’s Memos. The message the employees in the TRO received was that requests for an AWA which provided for four or more days of remote work per week would not be approved.

72. I note that the SOC’s March 16, 2022 Memo included the following statement:

The OPS remains committed to providing flexibility to employees as remote workers reintegrate into the physical workplace. This could mean attending an alternate workplace, staggered hours (for example, to allow for non-peak-time commuting or to align with childcare commitments). It could also mean averaging your days in the office over a two-week period. Managers can continue to offer flexibility and use discretion in responding to individual employee circumstances. We encourage you to connect with your manager to discuss what returning to the workplace could look like for you.

While this reaffirms the Employer’s commitment to “providing flexibility”, the alternate work arrangements listed do not include the ability to continue with remote work in contravention of the directive that staff will attend the workplace a minimum three days per week.

73. The Employer notes the SOC’s Memos refer to employees attending the workplace a minimum of three days per week, while the TRO subsequently adopted an office standard of three days per week of remote work, that is a minimum of only two days per week in the office. The Employer argues this demonstrates the SOC’s Memos did not remove the discretion of managers and were not interpreted by the TRO as having done so. I disagree. The SOC’s Memos indicated that the direction did not replace any “existing alternate work arrangements”, which meant arrangements existing prior to the onset of the pandemic. Rennie testified the TRO interpreted this as meaning the office standard of three days per week of remote work which was in place at the onset of the pandemic, rather than simply individual AWAs. In other words, even if a particular employee did not have an existing AWA for three days per week of remote work at the onset of the pandemic, they could obtain one subsequent to the pandemic. Whether this was in fact consistent with the SOC’s March, 2022 Memos is not relevant. What is relevant is that the TRO was purporting to act in a manner which it saw as consistent with the SOC’s Memos.

74. Following the SOC’s Memos, Rennie announced to staff of the TRO that the up to four days a week of telework upon the return to the workplace previously announced by Pal would not be implemented. Rather, the telework option would be limited to three days a week, as it had been prior to the onset of the pandemic. Staff were advised of this during all-staff meetings on March 24, April 6 and 20, 2022. The speaking notes used for those meetings stated in part:

• As you know, we received the memo from the Secretary of the Cabinet on March 16th, with the government’s plan for OPS staff working remotely to return to the workplace after two years of the pandemic and I know that you’re working through a lot of mixed emotions, as everyone prepares for their return to the office for the week of April 4th and beyond.

• I want to confirm that we will continue to have a Dynamic Work Strategy in Toronto Region whereby staff are able to participate in Compressed Work Week, Flexible Hours and Telework. The Dynamic Work Strategy will continue to be available to all groups of staff.

• However, there will be a one day adjustment made to the number of days working from home. Our telework days, prior, were not to exceed four days per week, but it has now been modified to not exceed three days in order to come into alignment with the Ontario Public Service’s plan to return to the workplace. Starting the week of May 16, as per the OPS plan, all staff will be working a minimum of 2 to 3 days in the workplace.

• The 2 to 3 days per week is aligned with the broader enterprise approach, pre-pandemic and allows each staff to work remotely a 2-3 days per week where operational requirements can be met.

[Emphasis added.]

75. The one day “adjustment” by the TRO to the number of telework days permitted was done unilaterally in “order to come in to alignment with the Ontario Public Service’s plan to return to the workplace”, i.e. as a result of the SOC Memos. As the Association argued, there was no evidence as to what factors were considered by the SOC in setting a new minimum requirement of days in the workplace, let alone that they included consideration of the operational viability of a work site. In any event this one day adjustment was made by the TRO unilaterally, without consideration of individual circumstances of any employee.

76. On April 20, 2022, Rennie again informed employees of the TRO that the TRO was not implementing the previously announced up to four day per week remote work option. Management speaking notes from the April 20, 2022 meeting state in part:

• All Alternative Work Arrangements are voluntary and discretionary, and are subject to change with notice, based on organizational direction and operational needs.

• During the pandemic, agreements were put in place that allowed staff to work from home up to four days per week. As part of the province’s reopening, the OPS direction is that we will be transitioning back to the workplace more frequently.

• Agreements remain in place and are amended to allow for working remotely up to two to three days per week.

• Our employer made this decision - it's not just for our office, or our ministry, it's not limited to bargaining agent staff, it includes all OPS employees, managers, directors… including me.

• I know many of you are disappointed with this direction, and that for some of you it means having to change child care plans, arrangements for other family members, and commuting routines. This may be disruptive, particularly in the short term, as you are working out new arrangements.

• This direction has been set as part of reopening our workplaces after more than 2 years of forced closures during a global pandemic. The province is rebuilding our workplaces, after a very difficult period, and reestablishing onsite connections is part of that work.

• I want to be clear, this new direction is not reflective of how we have been performing. As I have commented many times previously, we have more than demonstrated our ability to continue to deliver effectively from remote locations. I know we will all continue to provide great service to our clients, regardless of where we happen to be working on any given day.

[Emphasis added.]

77. While the Employer argues that there were in fact no AWAs in place at that time which provided for four days of remote work, the point is that Rennie announced that any such AWAs would have been unilaterally amended. Further, the notes expressly state that it was a result of a decision of “our employer”, as distinct from a decision of the TRO. Further, the notes make it clear that the decision was not a result of any concerns the TRO had with respect to the operational viability of AWAs for the work site. On the contrary, the notes indicate “we have more than demonstrated our ability to continue to deliver effectively from remote locations.”

78. In her evidence, Rennie noted that in her communications with staff she invited them to speak with their managers. She also testified that managers continued to look at individual circumstances of staff. The examples she gave of agreements which were entered into as a result, however, related for the most part to other forms of AWAs, for example compressed work weeks or flexible work hours. She stated that if someone needed to work from home for a temporary period of time it would have been allowed. In this respect she gave one example of an employee’s request for a temporary five telework days per week arrangement in order to limit exposure before a vacation in May 2022 being granted. She also indicated that employees in the Toronto Region with elder care or child care issues who had been permitted to work from home on a temporary basis, in one case for a number of months. The Employer points to this as demonstrating that managers continued to have and exercise discretion to grant an AWA for more than four days per week of telework.

79. I am not persuaded. I note that permitting an employee to work from home in order to provide elder care or child care may be a product of the Employer’s human rights based duty to accommodate. That obligation exists separate and apart from the Employer’s obligations under Article 47. Further, the Employer’s obligation under Article 47 is not limited to requests based on human rights grounds. In any event, notwithstanding Rennie’s reference to these as “AWAs”, I am not satisfied that permitting staff to work from home in these circumstances was the product an AWA entered into under Article 47. Article 47 provides that AWAs will be approved and signed by the Director, Centre for Employee Relations and the AMAPCEO President or their designees and that a manager seeking to cancel or amend an AWA shall provide at least one month’s written notice to the affected employee(s). While the evidence was that there were unsigned AWAs, Article 47 contemplates a more stable arrangement than the temporary accommodation of an employee’s child care needs for a day or a week described in some of the examples provided by Rennie. Even if these were considered AWAs entered into under Article 47, the fact that consideration would be given to requests to accommodate child care or elder care responsibilities, and that in one case an employee was permitted to work from home on a temporary basis prior to a vacation, does not change my conclusion that requests in general would not have been given bona fide consideration. I note a similar conclusion was reached by Arbitrator Harris in Workplace Safety and Insurance Board.

80. In cross-examination, Rennie initially did not agree that the SOC Memos had the effect of prohibiting four days a week of telework for the TRO; rather she said as a result of the SOC Memos four days a week was “not supported as the standard for the office”. At the conclusion of her cross-examination, however, Rennie agreed that the message conveyed during the all staff meetings of March 24, April 6 and 20, 2022 was that the Toronto Region could not give more telework days in an AWA than what was allowed by the SOC’s memos, i.e. two days per week of telework unless more was provided for by an AWA which pre-dated the pandemic. She agreed that the SOC’s Memos prohibited the four days per week of telework which the Toronto Regional staff thought they were going to get following the return to the workplace.

81. In her cross, Rennie also agreed that in determining whether or not to grant an AWA, it is the local management which assesses operational requirements. However, she stated that a manager’s decision to grant an AWA was made within the particular context as well as OPS-wide directions, such as those set out in the SOC’s March, 2022 memos.

82. On balance, I am satisfied that the evidence establishes that the TRO’s post pandemic office standard of three days per week of remote work also in general removed the obligation of managers to consider in good faith requests for an AWA which provided for more days of remote work. To the extent that it did so, I find it was inconsistent with and in breach of Article 47 of the Collective Agreement.

83. I turn now to the question of remedy. The Association seeks an order directing the TRO to implement an office standard of four days per week remote work. I decline to grant that order. As discussed above, the creation of an office standard is an exercise of management rights. Article 47, on which the Association relies, is only engaged to the extent that the office standard purports to remove the obligation of managers to consider requests in excess of the standard set. It is not the direction to managers to grant an AWA for three, as opposed to four, days of remote work per week which is in breach of Article 47. Rather, it is 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. I order the Employer to advise the TRO managers that they must in good faith consider requests for AWAs in excess of the office standard.

84. I would, however, make a brief comment on the significance of the fact that but for the SOC’s Memos the TRO would have adopted an office standard of four days of remote work per week as of March, 2022. Article 47 provides: “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.” In reviewing such a decision the issue for a board of arbitration is not whether it was correct, but rather, as stated by Arbitrator Swinton (as she then was) in Re Young and Ministry of Community and Social Services, (1979), 1979 CanLII 3955 (ON LA), 24 L.A.C. (2d) 145, whether the manager “has acted reasonably and without discrimination and has turned [their] mind to the merits of the particular request”. It is clear that as of March, 2022, the TRO had concluded that four days of remote work per week was operationally viable for its work sites. This fact is relevant to the assessment of the reasonableness of a TRO manager’s decision to deny a request for an AWA for four days of remote work per week, as would be any facts suggesting that it is no longer operationally viable to grant the request.

85. The case law provided by the parties, some of which I have already referenced, is largely consistent with these conclusions.

86. I do not find it necessary to review in detail the cases cited by the Employer holding that an exercise of “management rights” is not reviewable without a “hook” in the collective agreement or the cases holding that an article of the collective agreement permitting the parties to arrive at a “mutual agreement” does not give rise to any obligation on the part of the Employer to consider, let alone enter into, an agreement. In this case, as conceded by the Employer, the third sentence of the second paragraph of Article 47.1 provides a “hook” which goes beyond providing the parties may enter into a mutual agreement. That sentence states: “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.”

87. The Employer characterizes this as a “limited” hook, but it is a hook nonetheless and it is the hook upon which the Association’s case rests. I turn, therefore, to review the cases provided with respect to the exercise of a discretion conferred by a collective agreement.

88. In PEGO, Article 9.2 of the collective agreement provided:

Work arrangements including compressed work weeks, staggered hours, flexible hours, and employees working at home (telework) or at locations other than headquarters, may be entered into by mutual agreement in accordance with current practices. The Employer will make every effort to accommodate the employee’s request, subject to operational requirements.

Compressed work week arrangements had been in place for a number of years in a particular Division. The employer issued a memo stating in part:

After a review of our requirements and to ensure we are able to provide the best services to the public, it was determined that the compressed work week was no longer feasible for the Division. Please note that effective September 2, 2014, Compressed Work Week (CWW) arrangements in the Division will no longer be available…

The union grieved, claiming the memo constituted a breach of Article 9.2. Arbitrator Herlich allowed the grievance finding that the employer had discontinued CWWs without consideration of individual circumstances as required by the collective agreement. The Employer argues PEGO is distinguishable as the TRO’s communications made it clear that if a request for a four days per week AWA had been made individual circumstances would continue to be considered. For the reasons stated above, I disagree.

89. In Toronto District School Board, the collective agreement provided for “miscellaneous leave” for a variety of enumerated circumstances and also “under special circumstances for reasons approved by the Director or designate”. An employee requested miscellaneous leave to attend her son’s wedding. The employer denied the request on the basis that the son’s wedding was not “unforeseen”, arguing that was the scope of “special circumstances”. Arbitrator Steinberg disagreed and allowed the grievance. The case is clearly factually distinguishable but what is applicable is the principle that focusing on one factor to the exclusion of others is akin to a blanket policy and as such constitutes an improper fettering of discretion:

71 Section 23 involves the exercise of a discretionary power. The employer has, by its erroneous interpretation of "special circumstances", fettered its discretion. The proper exercise of such powers has been succinctly stated by Arbitrator Parmar in McMurrich Sprouts [ McMurrich Sprouts Daycare and CUPE, Local 4400 (Szwaj), Re, 2013 CarswellOnt 18633 (Ont. Arb.)] at para. 33 as follows:

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]]

90. In Workplace Safety and Insurance Board the collective agreement provided:

7.04 Start and finish times

In general an employee’s start and finish times will be between 7:00 a.m. and 5:00 p.m.

Arrangements for start and finish times will be by mutual agreement where possible, taking into consideration business needs and seniority….

The employer issued a memo to staff which stated in part:

In order to improve our availability for customer contact, we have decided that, as a general rule, staff shall commence work no earlier than 7:30 a.m. Exceptions will be considered if that unique job functions for circumstances require the employee to start earlier than 7:30 a.m.”

The union grieved that the memo constituted a breach of Article 7.04 of the collective agreement.

91. Arbitrator Harris allowed the grievance. He noted that management rights normally include the alteration of work schedules, but that this is subject to any restrictions created by other language in the collective agreement. Article 7.04 was such a restriction. On the evidence, the employer’s “business needs” were such that none of its employees, as a general rule, could start before 7:30 AM. Consideration of business needs was relevant to Article 7.04, but the parties intended them to be considered along with seniority within the context of a meeting during which the employer and an employee would attempt to reach a mutual agreement. The evidence (a concession by the employer’s witness, Mr. Gilkinson) established that any meetings were not bona fide attempts to reach an agreement. Exceptions were allowed only for medical reasons or for a subgroup of employees who did not have public contact. Arbitrator Harris held:

55 In my view, it was fair to let employees know of the employer's general concerns in advance. However, the employer took a rigid position prior to even knowing what the uptake would be of the new flextime options. It never deviated from this rigid position even after having the opportunity to assess the actual outcomes against its purported business needs. On the evidence, it did not even assess the actual outcomes. It was a breach of article 7.04 not to consider start time requests between 7 AM and 7:30 AM on an individual basis. The evidence is crystal clear that Mr. Gilkinson did not do so. Unless there was a medical component to the request, the general business needs determined at-large thoughtlessly trumped all other considerations. Article 7.04 requires that both business needs and seniority are to be taken into account. There was neither consideration of the actual need of the business to have each individual requesting a pre-7:30 AM start time start later, nor was there any consideration given to the seniority of the individual making the request. At the time, there were only 40 employees out of 2500 who started prior to 7:30 AM. Many had been doing so for a great many years. Article 7.04 required, in the least, an authentic discussion, at a meeting called for the purpose, of whether or not that situation could continue given the business's needs, as related to that individual, and the seniority of the individual.

92. The Employer argues that the Workplace Safety and Insurance Board decision is distinguishable because in that case there was not bona fide consideration of requests while in this case on the evidence there was. I disagree. While there was no express concession by the Employer, as was the case in Workplace Safety and Insurance Board, on the evidence as a whole for reasons stated above I find there would have been no bona fide consideration of requests for an AWA with more than three days per week telework. I note as well that in Workplace Safety and Insurance Board, the fact that consideration was given when there was a medical component to the request did not change the conclusion that requests in general were not given bona fide consideration. So, in the case before me, the fact that consideration would have been given to requests to accommodate child care or elder care responsibilities, does not change my conclusion that requests in general would not have been given bona fide consideration.

93. In Mailloux, a decision of this Board rendered by Arbitrator Michel Picher, Article 54 of the collective agreement provided:

A Deputy Minister or his designee may grant an employee leave-of-absence with pay for not more than three (3) days in a year upon special or compassionate grounds.

The employer adopted a policy in relation to the special and compassionate leave provisions which stated in part:

Normally, however, the provisions of Article 54 are not applied in the following circumstances:

• weather conditions

94. At p. 11 of his award, Arbitrator Picher quoted at length from another decision of this Board, rendered by Arbitrator Roberts, who in turn quoted a decision of the Board rendered by Arbitrator Swinton (as she then was): Re Young and Ministry of Community and Social Services, (1979), 1979 CanLII 3955 (ON LA), 24 L.A.C. (2d) 145. In that decision, Arbitrator Swinton described the standard of review applicable to the exercise by the employer of its discretion to grant special or compassionate leave as follows:

An arbitration board … must decide whether the employer has acted reasonably and without discrimination and has turned its mind to the merits of the particular request. If satisfied that these criteria have been met, the board must deny the grievance, even if it disagrees with the result reached by the employer or if it might have reached a decision other than that reached by the employer. The board’s concern is the reasonableness of the decision, not its ‘correctness’ in the board’s view. Such an approach is the proper one to adopt in situations such as leave of absence cases, where the collective agreement gives the employer a broad discretion and where the board has less familiarity than has the employer with the needs of the work place.

In my view the same principles apply to a manager’s discretion to enter into an AWA under Article 47: the discretion afforded the manager is broad and the manager has greater familiarity with the “operational viability of the worksite” than a reviewing arbitrator.

95. Arbitrator Picher also referred to Re Kuyntjes² and Ministry of Transportation and Communications (1984), GSB No. 513/84 (Verity), the seminal decision for the “fourfold test”:

96. The decision must be made in good faith and without discrimination.

97. It must be a genuine exercise of discretionary power, as opposed to a rigid policy adherence.

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

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

While adopting this test, Arbitrator Picher, rejected the argument of the union that the burden was upon the employer to establish that it had complied, noting to do so “risks unduly judicializing decision making in the day to day management of the Employer’s operations”. Rather, it was the responsibility of the employee seeking the exercise of the employer’s discretion in his or her favour “to make all pertinent facts known to the managerial decision maker”, and at arbitration the evidentiary burden fell upon the union: see pp. 12-13.

96. Arbitrator Picher’s discussion of the employer’s policy that weather conditions would not justify the grant of compassionate leave establishes it constituted an arbitrary rule, the application of which would constitute an improper fettering of the discretion of the decision maker: see the excerpts from O’Brien at p. 13 and p. 14; and the discussion of Kuyntjes at p. 15. On the evidence before him, however, he found the decision maker “did not fetter his discretion by adherence to any rigid policy, and specifically stated that in deserving circumstances extreme weather conditions might justify compassionate leave”: see p. 19.

97. Before me, the Employer relies upon Arbitrator Picher’s comments with respect to the responsibility of the employee making a request and the allocation of the evidentiary burden. It argues that in this case there were no requests for an AWA of four days per week of remote work and therefore no prima facie case, or alternatively the Association failed to meet its evidentiary burden. I am not persuaded by this argument. For the reasons given above I am satisfied the evidence establishes that following the SOC’s Memos, the Employer had adopted a rigid policy of not agreeing to AWAs for more than three days per week of remote work. This is sufficient for the Association to have discharged its evidentiary burden. Indeed, the Employer conceded as much.

98. The Employer points to Chatelaine Villa Nursing Home v. CUPE, Local 2369, 1990 CarswellOnt 4365, 18 C.L.A.S.391 (Whitehead) as a case which upheld a blanket policy implemented by an employer with respect to how it would exercise a discretion set out in a collective agreement. In that case, employees were entitled to three “Float Days” under the “Paid Holiday” provisions of the collective agreement. If an employee desired to take one of the Float Days, the collective agreement provided that they would make a request of their immediate supervisor. The employer adopted a policy that Float Days would not be granted on weekends or during summer vacations. Arbitrator Whitehead upheld this policy stating: “It is a policy about how the employer will exercise its discretion in responding to employer requests.” Arbitrator Whitehead’s reasoning was based at least in part on consideration of other provisions of the Paid Holiday article. As such it is distinguishable from the case before me. To the extent, however, that it stands for the general proposition that a blanket policy with respect to the exercise of a discretion is permissible it is in my view inconsistent with the other arbitral jurisprudence I have reviewed and in any event I disagree.

Summary and Conclusion

99. For the reasons stated, the grievance is allowed. I declare the Employer breached Article 47 of the Collective Agreement by improperly fettering the obligation of TRO managers to consider requests for AWAs for remote work for more than the office standard of three days per week. I order the Employer to advise the TRO managers that they must in good faith consider requests under Article 47 for AWAs in excess of the office standard. I decline, however, to grant any other remedy.

Dated at Toronto, Ontario this 8th day of January 2024.

Footnotes

1. 1The TRO has both employees represented by the Association and employees represented by OPSEU.
2. 2In Arbitrator Picher’s decision, this is misspelled as “Kuyantjes”.