GSB# 2022-7035; 2022-7200; 2022-7943;

2022-8122; 2023-03094; 2023-03359

UNION# 2022-0546-0018; 2022-0205-0007; 2022-0310-0010;

2022-0446-0023; 2024-0546-0004; 2022-0585-0012

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Miklos et al)

Union

• and -

The Crown in Right of Ontario (Ministry of Labour, Immigration, Training and Skills Development)

Employer

BEFORE

Kumail Karimjee

Arbitrator

FOR THE UNION

Georgina Watts & Morrison Watts Hurtado Counsel

Thomas Goetz Morrison Watts Hurtado Articling Student

FOR THE EMPLOYER

Paul Meier Treasury Board Secretariat Legal Services Branch Senior Counsel

HEARING WRITTEN SUBMISSIONS

April 10, 2025 April 22, 2025

Decision

INTRODUCTION

1This is a dispute over where the grievors work. The grievances challenge the Employer’s requirement that the grievors work in-person either in the field or at one of the Employer’s offices (collectively referred to as “in-person”) a minimum of three days per week. This requirement effectively limits remote work or work-from-home to a maximum of two days per week.

2These grievances were referred to arbitration under the Mediation/Arbitration procedure provided for in Article 22.16.2 of the Collective Agreement which allows for the limitation of the nature and extent of the evidence, the provision of succinct reasons only, and that decisions reached through this process shall have no precedential value (unless the parties agree otherwise). As such, the parties, as directed following case management, in addition to full oral argument, proceeded on the basis of a joint partial Agreed Statement of Fact (“ASF”), a Joint Book and Documents, and written evidence through Will Says and written submissions. No witnesses were called. At the close of argument, the parties waived the Collective Agreement’s stipulated timelines for the release of this decision.

3There are five group grievances before me involving a total of 46 employees employed as Employment Standards Officers (“ESOs”) across the province within the Fair, Safe and Healthy Workplaces Division (the “Division”) of the Ministry of Labour, Immigration, Training and Skills Development (the “Ministry”).

4The grievances arise within the context of COVID-19 pandemic return to the workplace measures within the Ontario Public Service (“OPS”). However, a unique feature of this case is that, prior to the pandemic, the parties agree (subject to a narrow factual dispute over arrangements at one office) that ESOs were not required to work a minimum number of in-person days. As such, the Employer’s minimum of three days a week is a change from a longstanding pre-COVID-19 practice and a new requirement for ESOs.

5These grievances do not challenge an exercise of discretion over a specific requested flexible work arrangement for an individual employee. Rather, the grievances challenge, as a whole, the Employer’s general office standard requiring three days per week in-person. The grievances allege that the requirement “…is a change to our working conditions that is unfair, unreasonable and unnecessary” and seek a “return to pre-pandemic working conditions” and “flexibility in work as needed.”

6This case, as argued, alleges a breach of Article 2 of the Collective Agreement, the management rights clause. The grievance forms also allege a breach of Appendix 42 of the Collective Agreement, the parties’ Letter of Understanding on Modern and Flexible Work Arrangements which deals with, inter alia, “remote work.” However, at the hearing, the Union did not pursue any arguments with respect to Appendix 42 and focussed exclusively on management rights.

7The Union takes the position that the Employer’s requirement of three days of in-person work constitutes a new “workplace rule” subject to arbitral review in accordance with the test set out in Lumber & Sawmill Workers' Union, Local 2537, and KVP Co. Ltd., 1965 CanLII 1009 (ON LA) (Robinson) (“KVP”). The Union accepts that the three-days in-person requirement meets all KVP criteria except the reasonableness requirement. Specifically, the Union argues that the evidence before me does not establish a rational connection between the three-days in-person requirement and the Employer’s stated business purposes of fostering team culture, belonging, and mentorship.

8The Employer takes the position that, under the Collective Agreement, management retains the unfettered management right to determine work methods and the location of work, and thereby to require in-person attendance. The Employer argues that its exercise of its management right to require that employees attend physically at work either at a Ministry office or in the field cannot properly be characterized as a “workplace rule” subject to reasonableness review under KVP or otherwise. Alternatively, the Employer argues that its hybrid work model with its in-person work requirements has benefits and does not in any way constitute a violation of the Collective Agreement.

9There are two issues:

a. Is the Employer’s requirement to work in-person three days per week a “workplace rule” subject to review under the KVP reasonableness standard?

b. If the KVP reasonableness standard applies, is the three-days in-person requirement reasonable?

10Turning first to issue two, for the reasons that follow, I find that if the KVP reasonableness test for workplace rules applies, it is satisfied. The evidence in the record clearly establishes that the Employer’s requirement that ESOs work three days in-person is reasonable. Given this determination with respect to issue two, it is not necessary for me to decide issue one. As the parties arbitrated this case through their Article 22.16.2 process which calls for succinct reasons of no precedential value, I decline to determine issue one as it is not necessary to do so. However, for the sake of completeness and as context for this decision as a whole, I will summarize the parties’ arguments on both issues below.

BACKGROUND

11ESO’s conduct investigations, make decisions regarding Employment Standards Act, 2000 (“ESA”) rights and entitlements, and conduct inspections. Most of the work of ESOs involves investigations.

12In the 2022-2023 Fiscal Year, there were approximately 162 ESO positions across the province. ESOs are currently employed in six Regions¹ in the province.

13Prior to the pandemic, there was some variation in work arrangements and practices regarding in office days for ESOs in different Ministry offices and Regions. However, specific practices aside, what matters for the purposes of these grievances, is that it is agreed that management did not require a minimum number of in office days for ESOs in the Northern, Western (including what is now the South Western), Eastern, Central East Regions and in the Mississauga office within the Central West Region.

14There is a factual dispute regarding the practices of the Newmarket office though nothing turns on it. Ultimately, there is no dispute that the management requirement in issue to attend in-person at least three days per week and thereby to limit remote work to a maximum of two days per week, constitutes a new requirement and change from the practice in place prior to the pandemic for most ESOs.

15By way of background, as a result of the COVID-19 pandemic, as part of broader public health measures, as of March 2000, all ESOs started performing their duties entirely remotely. However, despite the pandemic, approximately half or 31,000 members of the OPS continued to work in-person during the pandemic.

16After the pandemic’s initial phases, the Secretary of Cabinet (“SOC”) issued a number of communications to OPS members regarding “reopening” and return to in-person work in OPS workplaces. The SOC Memoranda collectively provide, subject to alternative work arrangements and accommodations in place, that employees working remotely because of the pandemic “should expect to return to the workplace for a minimum of three days per week.”

17In line with the SOC Memoranda, on March 23, 2022, the Division’s Assistant Deputy Minister (“ADM”) issued a memorandum titled “Return to the Workplace – A Transition” which states that employees are expected to attend the workplace three days a week by May 16, 2022. This memorandum also states:

Employees who require flexibility to balance personal and professional responsibilities should explain their needs to their manager. All will be considered on a case-by-case basis.

Formal Alternative Work Arrangements (AWAs) or Flexible Work Arrangements (FWAs) in place can be maintained.

The workplace…includes other locations besides the office. For example, the workplace for Employment Standards Officers…includes both the office and the field (i.e., court, other workplaces that they are attending for the purposes of inspections, investigations, or consultations.) The 2022-2023 Employment Standards (ES) Program Priorities require a strong field presence.

18Between March and July 2022, these five group grievances were filed on behalf of approximately 46 ESOs from the Toronto, Newmarket, Ottawa, and Hamilton offices. The parties took what they describe as a “mature labour relations approach” and agreed to hold these grievances in abeyance until the Division could review its needs and the work structure. In the interim period, the requirement for three days in-person was not implemented. Further, a number of employees, on an individual basis, sought and obtained flexible work arrangements such as compressed work weeks reducing the number of workdays per week. The parties agree that employees may, on an individual basis, request flexible work arrangements such as a compressed work week or remote work under Appendix 42 or as human rights related accommodation.

19By memorandum dated December 11, 2023, the Division’s ADM announced that the review of requirements for ESOs had been completed and that “ESOs across all regions will be required to attend the physical workplace (office and/or field) a minimum of three (3) days per week beginning June 3, 2024.” The memorandum stated that practices across Regions were inconsistent “causing an imbalance and a perceived lack of fairness.” The memorandum further states:

Regular in-person attendance is important for various reasons including fostering a team culture, allowing staff to deepen relationships to create a sense of belonging, and being able to provide mentorship and support to new staff through the onboarding process.

20On the same date, the Employer also released a Staff Qs & As document which states that field days count as onsite attendance and that the three-day requirement can be met either with attendance at an office or field work. The Qs & As document also states “[c]ases of non-compliance, absent a valid exemption, will be subject to discipline in accordance with progressive discipline.” In sum, the Employer communications reflect a new requirement for ESOs along with an explicit warning of discipline for non-compliance with the new management direction.

21As of June 2024, the typical ESA workweek is comprised of three days of work in either an office or the field and two days of remote work, subject to any flexible work arrangements or accommodations granted.

22The Union’s evidence includes two Will Says from ESOs Vandana Chandra, one of the grievors, and Sally Clark, an ESO who is not a grievor. The evidence from the two deponents is that they experience challenges in their ability to work efficiently and productively in the Ministry office environment due to noise, distractions, and a lack of privacy. Further, the deponents state that given the independent nature of the work of ESOs, collaboration is not necessary and that, in any event, team culture is not fostered through the in-office requirement as there are often no other ESOs present when they attend at the office. They express experiencing stress due to commuting, reduced productivity, and lower job satisfaction as a result of the new in-person requirements.

SUMMARY OF PARTIES’ ARGUMENTS

23The parties’ positions reflect fundamentally different ways of characterizing the three-day requirement.

24The Union characterized the three-day requirement as a new “workplace rule.” The Union argued that the new “rule” materially and detrimentally impacts the lives of ESOs some of whom made life decisions, such as where to live, based on longstanding pre-pandemic work arrangements within the Division that did not impose minimum in-person work requirements.

25The Union did not assert that there exists a freestanding reasonableness review for all exercises of management rights. Nor does the Union challenge the Board’s established jurisprudence relied on by the Employer on the scope of arbitral review of an exercise of management rights. Rather, the Union seeks to draw a direct connection to another provision of the Collective Agreement, namely the just cause provision, and the potential for discipline for non-compliance with the three-day requirement, to argue that the KVP reasonableness standard applies.

26In arguing that the requirement of in-person attendance is a “workplace rule,” the Union relies on the cases of the Board applying KVP principles (Amalgamated Transit Union - Local 1587 v Ontario (Metrolinx), 2022 CanLII 70871 (ON GSB) (Nairn), OPSEU v Ministry of Solicitor General and Correctional Services, 1997 GSB#1925/96 (Abramsky), Ontario Public Service Employees Union (Union) v Ontario (Solicitor General), 2021 CanLII 95740 (ON GSB) (Anderson), and Ontario Public Service Employees Union v Ontario (Liquor Control Board of Ontario), 2010 CanLII 18869 (ON GSB) (Gray)) and other KVP arbitration cases involving the very different contexts of personal appearance and surveillance (Ottawa Hospital v Canadian Union of Public Employees, Local 4000, 2013 CanLII 643 (ON LA) (Slotnick), Air Canada v IAMAW District Lodge 140, 2019 CanLII 5917 (CA LA) (Schmidt), Lenworth Metal Products Ltd. and U.S.W.A., Loc. 3950 (Re), 1999 CanLII 35826 (ON LA) (Armstrong).

27The closest parallel relied upon by the Union is Ontario Public Service Employees Union v. Ontario (Liquor Control Board of Ontario), 2010 CanLII 18869 (ON GSB) (Gray) which held that an employer scheduling rule requiring that casual employees meet minimum availability for work requirements during certain peak hours was subject to reasonableness review under KVP; however, even in that case, the Board held that the employer requirement was reasonable.

28Beyond the application of KVP, the Union’s principal argument is that there is no rational connection or objective link between the Employer’s three-day in-person work requirement and the Employer’s business objectives. The Union accepts that the Employer’s goals are laudable but submits that the Employer’s evidence in support of its objectives is sparse, impressionistic, and vague and thereby fails to show that the business objectives are connected to and advanced by the Employer’s requirement.

29Further, the Union, with reliance on the Will Says of two ESOs submits that opportunities for collaboration are haphazard at best; the workplace is noisy and lacking in privacy; and that increased stress and reduced productivity result from the in-person requirement.

30Conversely, the Employer characterized the three-day requirement as a pure and basic exercise of a management prerogative not subject to arbitral review. In addition to the general right of management to manage and direct operations, the Employer points to Article 2 of the parties’ Collective Agreement which states that management rights include the right to: “determine…work methods, the location of the workplace…training and development” and to “…make reasonable rules and regulations.” Absent negotiated language limiting the right of management to determine “work methods” and the “location of the workplace,” the Employer maintains that its decision to require in-person work is not subject to arbitral review at all.

31Further, the Employer submits that the language of Appendix 42 (the parties Letter of Understanding titled Modern and Flexible Work Arrangements), suggests that the Employer did not, in the Collective Agreement, cede any of its management rights in relation to remote work. Appendix 42 refers to the Employer promoting greater flexibility for employees in “where and when they work” and includes specific reference to “remote work” as a type of flexible work arrangement. However, paragraph 5 of Appendix 42 states that the “parties recognize that the Employer has the right to deny, alter or require modern and flexible work arrangements” and that the “Employer’s exercise of discretion pursuant to this letter shall not be grievable.” Employer counsel, while accepting that Appendix 42 is not strictly speaking applicable to the Union’s argument of this grievance, maintains that Appendix 42 supports the position that management did not give up or bargain away any control over remote work.

32Ultimately, the Employer maintains that it has an unfettered management right to determine how and where work is performed. In support, it relies on SGS Canada Inc., (2017) 283 L.A.C. (4th) 221 (MacDowell); Alectra Utilities Corp., 2022 CanLII 50548; (Stewart), Central West LHIN et al., 2023 CanLII 58388; (Goodfellow), and AMAPCEO (Roffey) v. Ontario (MCSS), 2024 CanLII 8294 (Anderson).

33The Employer maintains that its hybrid work model is a “management strategy” and reflects a basic operational decision within management’s exclusive purview. The Employer submits that the review of management rights for reasonableness under the GSB’s jurisprudence requires that another provision of the Collective Agreement would be negated or unduly limited by the exercise of management rights in question (with reliance on OPSEU (Lesieur et al) v Ontario (MOE), 2005 CanLII 54831(Briggs) and OPSEU (Dobroff et al.) v Ontario (MOE), 2003-0905 (Dissanayake)).

34The Employer takes the position that the Union seeks, through its reliance on KVP, to convert management’s exercise of a basic and fundamental right to require attendance at a designated workplace into a rule thereby expanding KVP well beyond its intended application. It submits, relying on OPSEU (Cherwonogrodzky et al.) v Ontario (MOF), 2004 CanLII 55340 (Gray), that the parties did not, by agreeing to the language of “reasonable rules and regulations,” expect that all operational decisions would be subject to arbitral review for reasonableness.

35While the Employer’s argument focussed on its position that the KVP reasonableness standard does not apply, it also submits that the Division sees benefits in-person work. Based on facts stipulated in its written submissions and the ADM memoranda included in the Joint Book of Documents, it submits that the three-day in-person work requirement addresses the Division’s desire for consistency in practices for ESOs across Regions. Further, it submits that there have been greater opportunities related to onboarding, mentoring, idea sharing, and benefits of informal team and cross-team in-person connections.

ANALYSIS

36As submitted by the Employer, the imposition of a new, consistent three-day per week in-person requirement involves the exercise of management rights. However, that is not a complete answer. The question is whether that exercise of management rights is unfettered and absolute such that there is no basis for review, even when as here the Union has, perhaps creatively, framed its argument in a way that directly links it to the requirement of just cause for discipline within the Collective Agreement and the KVP line of cases.

37While I appreciate the care and attention directed to the question of whether KVP applies, I need not determine this broader issue on the nature and scope of arbitral review of management rights given that it is clear on the record before me that the Employer’s requirement of three days of in-person work is reasonable. As stated above, this is an Article 22.16.2 case argued on a limited record on the understanding that only succinct reasons of no precedential value will be provided. While I have set out the parties’ positions for completeness, ultimately, for the reasons set out below, even if the KVP reasonableness standard applies, I am satisfied that the Employer’s three-day in-person requirement is reasonable. As such, I will address only the second of the two issues raised by the parties which is sufficient to determine this case.

If the KVP reasonableness standard applies, is the three-days in-person requirement reasonable?

38As set out above, though the application of KVP is contested here, ultimately, it is clear on the record before me that the Employer requirement of three days of in-person work, including field work, for ESOs meets the KVP reasonableness test. I make this finding based on the following factors.

39First, at the outset, the Union does not challenge the Employer’s business objectives and in fact, for the purposes of this grievance, accepts that certain of the Employer’s objectives stated variously as fostering team culture, belonging, collaboration, and mentorship, are legitimate and even “laudable” goals.

40Second, the Union’s only argument on reasonableness is that there is no rational connection between the three-day in-person requirement and the Employer’s business objectives. The argument is that the evidentiary record before me does not demonstrate that the three-day requirement is rationally connected to or advances its stated purposes.

41A rational connection requires a link between the Employer’s rule and the business objective that it seeks to achieve. There should be a reasonable and logical connection between the rule and the Employer’s business objective. To determine whether a rational connection exists, I must consider the business objectives themselves and whether the three-day requirement is connected or linked to them.

42Third, the record references two main sets of reasons or purposes for the Employer’s three-day requirement. I will set out and deal with each in turn.

43The ADM memorandum dated December 11, 2023 states: “regular in-person attendance is important for various reasons including fostering a team culture, allowing staff to deepen relationships to create a sense of belonging, and being able to provide mentorship and support to new staff through the onboarding process.” These reasons were the focus of argument, but they are not the only stated reasons.

44The ADM memorandum dated December 11, 2023 also states that there were inconsistent practices regarding in-person work arrangements from Region to Region, a perceived lack of fairness, and an interest in a consistent approach across the province. The parties’ ASF sets out the practices across the Regions in the province prior to the pandemic. I note, based on the ASF, that it is agreed by the parties that practices were in fact not consistent. One of the reasons for the requirement of three days of in-person work was to address consistency and fairness in in-person work practices across regions.

45Fourth, the evidentiary record is sufficient to satisfy the requirement of a rational connection between the three-day in-person requirement and the business objectives stated above.

46Starting with consistency, in my view, the establishment of an office standard requiring three days of in-person work with a maximum of two days of remote work is connected to and advances the goal of consistency across offices and Regions. Replacing the varying practices across Regions and offices as outlined in the ASF with a single province wide office standard advances the objective of consistency. The Union concedes that it does not challenge the Employer’s objectives. As such, what is to be addressed here is the link or connection between the rule and the objective, not the importance or necessity of the goal itself. In this regard, leaving aside the utility or benefit of consistency as a goal, it is clear that the adoption of one standard applicable to all offices and Regions, rather than allowing variation on an office-by-office basis, is linked to and advances the goal of consistency.

47Regarding team culture, belonging, collaboration, and mentorship, the context here is that during the pandemic, ESOs performed all of their duties remotely. The three-day in-person requirement seeks to increase ESOs presence onsite to foster team culture, allow staff to deepen relationships, create a sense of belonging, and provide mentorship and support to new staff through the onboarding process. These are very general goals the advancement of which is not easily quantifiable. The evidence put forward by the Union is that the deponents “often” find no other ESOs in the office when they attend and that, as a result, there is “little” opportunity for collaboration that flows from the in-person requirement. They go so far as to say that collaboration is not necessary to perform their work. They also raise concerns about their productivity and efficiency when working out of a Ministry office. In my view, this evidence, particularly the suggestion that collaboration is not necessary, in part questions the goals that the Union has accepted. Ultimately, the evidence tendered by the Union does not undermine the presence of a rational connection.

48Further, as submitted by the Employer, the Employer seeks to strike a balance. The Employer’s requirement is limited to three days which allows two days of remote work to ESOs who are required to engage in highly independent tasks that include researching, performing calculations, and writing decisions. Further, given the nature of ESOs role in conducting investigations and inspections connected to workplaces, the requirement allows field days to count as in-person days. This is consistent with broader Employer return to work communications (ADM memorandum March 22, 2022) which reference the roles of ESOs involving attendance at workplaces, and the requirement of a strong field presence under Employment Standards program priorities after ESOs had been working entirely remotely during the pandemic. The value of in-person work in the field was not challenged by the Union.

49With this backdrop, I accept that the minimum requirement of three days in-person is linked to the business objective of fostering opportunities for teamwork, collaboration, and mentorship that involve in-person interaction. Stated another way, it is not irrational for the Employer to seek to advance these goals admitted as laudable through a minimum standard of three days in-person. I accept that there is a greater likelihood of in-person interaction and connection amongst ESOs with a minimum standard for in-person work than without. While the flexibility built into the implementation of the three-day requirement may limit the amount of in-person interaction and opportunity for connection achieved, there still remains a clear link between in-person team interaction and the requirement of in-person attendance.

50In sum, as set out above, there is a rational connection between the objectives of consistency and fostering team culture, belonging, and mentorship and in-person work. To be clear, the issue is not whether the Employer’s requirement is the best way or only way or most efficient way to achieve its business objectives or whether its objectives may be sufficiently advanced through a different approach preferred by the grievors or Union. What we are talking about is simply whether there is a rational connection between the “rule” and the business objective.

51I have also considered the Union’s reliance on the KVP case law involving surveillance and personal appearance such as tattoos, piercings, and union caps. Unlike the present case, the appearance and surveillance cases typically involve the balancing of an employer’s business objectives with some other recognized right such as privacy, expression through one’s personal appearance, or health and safety. As such, these cases are distinguishable and of limited assistance.

52Finally, it bears stating that the Employer’s three-day in-person requirement is subject to the possibility of flexible work arrangements or human rights accommodation. There is a pathway, though not without certain bargained limitations, under Appendix 42 for individual employees to request flexible work arrangements and the evidentiary record shows that ESOs have made and been granted such requests including after the filing of these grievances.

53In conclusion, I accept that the three-day in-person work requirement has a significant impact on ESOs who previously had greater independence and flexibility in determining where they worked. Further, I accept that the issue of remote work raises broader social policy concerns with important interests at stake as evidenced by the parties’ positions relating to productivity, efficiency, impacts of commuting, work-life balance, team culture, collaboration, and mentoring. However, ultimately, this is a rights arbitration under the parties’ Collective Agreement challenging an exercise of management rights. Assuming that the KVP test applies to the new Employer requirement introduced in exercise of its management rights, I find that, on the evidence before me, the Employer’s three-day in-person work requirement meets that test. The requirement to attend in person at the Employer’s designated workplace and/or field locations a minimum of three days a week is rationally connected to the Employer’s stated goals of consistency and fostering teamwork, belonging, and mentorship opportunities and meets the KVP reasonableness standard.

54For these reasons, this grievance is dismissed.

Footnotes

1. 1There were five Regions at the time the grievances. The Western Region was subsequently split into South Western and Western Regions resulting in six Regions. Some Regions have more than one Ministry office. The Regions are currently Eastern, Central Eastern, Central Western, South Western, Western and Northern.