GSB# 2023-02397
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 (McDonald)
Association
- and -
The Crown in Right of Ontario (Treasury Board Secretariat)
Employer
BEFORE
Sara Atkinson
Arbitrator
FOR THE ASSOCIATION
Marisa Pollock Amy Chen Goldblatt Partners LLP Counsel
FOR THE EMPLOYER
Peter Dailleboust Treasury Board Secretariat Legal Services Branch Counsel
HEARING
October 8, December 4, December 10, 2024 and April 11, 2025
Decision
Introduction
1This decision addresses a grievance brought by AMAPCEO on behalf of Joshua Macdonald (“the Complainant”) alleging a breach of articles 3 and 47 of the Collective Agreement. The grievance relates to the denial of the Complainant’s Request for an Alternative Work Arrangement (“AWA”).
2On June 23, 2023, the Complainant submitted a request to Allison Ue, his manager at the time, to work remotely five days per week. Further to a request for more information from Ms. Ue, the Complainant provided additional details on July 12, 2023, including that working from home enhanced his employee experience and work performance, and aligned with the Collective Agreement and the Employer’s Flexible Work Strategy as well as the team’s schedule, hours, and work. Ms. Ue denied the request on September 25, 2023.
3The Association argues that the Employer, in requiring managers to follow directives set out in two Memoranda issued in March 2022 by the Secretary of Cabinet (“SOC Memos”), fettered Ms. Ue’s discretion to assess, in good faith, both the Complainant’s individual circumstances and the AWA in the context of the operational needs of the worksite, contrary to Article 47 of the Collective Agreement. The Association contends that the Employer effectively imposed a blanket three-day in-office rule, which the Complainant’s manager followed in denying the Complainant’s AWA request.
4The Employer responds that while Article 47 modifies its management rights, it retains discretion to structure the workplace and determine operational viability. It acknowledges that Article 47 requires a good faith analysis of the AWA request, but denies that this automatically leads to approval. The Employer refutes that a blanket rule was applied under the SOC Memos or other employer directive and maintains that the manager properly exercised her discretion in denying the Complainant’s request.
5The central issue before me is therefore whether Ms. Ue’s decision to deny the Complainant’s AWA Request was a genuine exercise of discretion in assessing the Request on its individual merits along with the operational viability of the AWA for the work site, or whether the decision was effectively pre-determined by a blanket directive or other constraint imposed by the Employer
6After careful consideration of the positions of the parties and the evidence produced in the context of this case, and for the reasons set out below, I find that the Association has not met its burden to establish that the Employer fettered the manager’s discretion to consider in good faith the Complainant’s AWA request and/or the operational viability of the work site.
Background
7Based on the cases submitted and relied upon by the parties, it is evident that the present grievance is one of several filed by the Association regarding management denials of AWA requests following issuance of the two SOC Memos, dated respectively March 1 and March 16, 2022, to all Ontario Public Service (“OPS”) staff. The SOC Memos each set out an “Update on the OPS Return to Workforce Plan” and were issued at the end of the COVID 19 pandemic when many employees had been directed to work exclusively from home. The first SOC Memo informed OPS staff who had been working remotely that they would be expected to be in the office three days per week as of April 4, 2022. This date was later extended (via the second SOC Memo) to May 16, 2022, with a more gradual return to work to take place in the intervening time frame. Both SOC Memos indicated that the direction did not replace any existing alternate work arrangements.
8The Complainant has a continuous service date with the OPS of May 12, 2014. He joined the Central Resources Unit (“CRU”) as an Economist in or around April 2020 and moved to an acting Senior Economist role in May 2022. The CRU is a subdivision at the Treasury Board Secretariat (“TBS”). At the time the Complainant joined the unit, all CRU staff were working remotely due to the COVID-19 pandemic.
9In his role as Economist, the Complainant is typically “deployed” as an internal consultant to other OPS units, also referred to as “clients” of the CRU. CRU staff provide clients with short-term and/or project-based support, frequently for several months at a time. The Complainant’s duties are generally the same for each deployment, and he usually has similar recurring meetings at each deployment. Between April 2020 and October 2021, CRU staff were not deployed, and the Complainant was assigned work by his CRU “home manager”, who was typically responsible for arranging the deployments and any other human resource-related matters, such as sick days, vacation, accommodations, or AWA requests.
10Between October 25, 2021, and December 22, 2023, the Complainant was deployed to work with four different OPS units. He worked from home until his deployment to the Planning and Design Unit (“PDU”) on April 5, 2022, which followed shortly after the issuance of the SOC Memos. While the second SOC Memo, dated March 16, 2022, provided that staff were only required to attend the office one to two days per week as of April 4, 2022, it also indicated that they were expected to be in the office 3 days per week as of May 16, 2022. The CRU did not immediately enforce the new 3-day minimum.
11From April 5, 2022, to September 2023, the Complainant worked from home four days per week and attended the office one day per week. As of May 2022, in conjunction with the CRU’s requirement that all CRU staff who were not deployed attend the CRU’s Frost South office on Thursdays, the Complainant was permitted by his various deployment managers to have Thursday as his one in-office day which, when he was deployed, took place at the deployment locations. In between deployments, he worked at Frost South and attended that office once a week on Thursdays. During the Complainant’s deployment at the Gaming Policy Unit (“GPU”), which started on March 6, 2023, the Complainant was also permitted by his deployment manager to work half-days in the office, consistent with other GPU staff.
12On June 22, 2023, TBS issued a document directed at managers which it referred to as Manager Guidance (Interim) on the Return to OPS Workplaces and Alternative Work Arrangements (“Interim Guidance”). This document indicates on its face that it was created for managers, and it addresses a number of areas relating to the OPS returning to the workplace from the pandemic and AWAs. At the outset, it includes a section on Frequently Asked Questions (“FAQ”) relating to issues such as new AWAs, Performance Planning, Alternate OPS Work Locations, Employment Accommodation, and other topics. The FAQ also creates a link with the SOC Memos by stating (at p.1) that the Interim Guidance “supports managers as the […] OPS continues to navigate the evolving nature of COVID-19, in alignment with the guidance provided in March 2022.” In a June 23, 2023, communication to HR attaching the Interim Guidance, TBS stated that the purpose of the Interim Guidance was to be a resource summarizing “the continuing interim return to workplaces guidance (minimum 3 days per week onsite) and the steps involved in Alternative Work Arrangements”. Managers were directed to access the Guidance and other materials online, and to treat the document as confidential.
13On June 23, 2023, TBS advised its staff via memorandum (the “June 23 Memo”) that for all employees who had regular remote work days, whether as part of the ongoing return to work process or an AWA, the OPS was introducing an “attestation” process “for employees to confirm that they have attended the onsite workplace in accordance with the arrangements agreed to with their manager”. The June 23 Memo stated that the attestation ensured that employees and managers were “regularly engaging on scheduling and planning”, and that their manager “will continue to work with you on your schedule and to address any questions about attestation, AWAs, the OPS return to workplaces process and / or employment accommodation.”
14Later in the day on June 23, 2023, the Complainant submitted his Remote Work Request (“AWA Request” or “Request”) to work all 5 days per week at home to Ms. Ue, his home manager at the time. As stated above, the Complainant was working from home four days per week at this time and worked in the GPU deployment location one day per week, on Thursdays. Starting in September 2023, the CRU required its staff to attend in-person three days per week.
15After back-and-forth correspondence between Ms. Ue and HR, the Complainant’s Request was denied by Ms. Ue on September 25, 2023.
The Parties’ Positions
16The Association submits that in assessing the Complainant’s AWA Request in this case, the only factor considered by the Employer was the “rule” or “standard” of three days’ work onsite and two days’ work from home. The Association states that the evidence clearly shows that the dominant and in fact sole consideration for a manager in considering an AWA request is the SOC Memos which impose as a rule a minimum of three days in the office. As such, it argues that this constitutes a complete fettering of the manager’s discretion.
17The Association contends that the documentary record produced with respect to the denial of the Complainant’s Request, including the Interim Guidance from HR, sets out what operational needs should or could be considered by a manager in denying an AWA request. In its view, the Interim Guidance merely pays lip service to the proper considerations for an exercise of discretion, but does not practice what it preaches, and that in fact HR supplants the Employer and imposes as the only option three days in the office. The Association submits that the three-day minimum was applied by the Employer as a blanket rule or rigid direction in response to the Complainant’s Request to work from home for more than the three-day standard.
18In the Association’s view, the documentation includes references to general concepts or “buzz words” such as “collaboration”, “team work”, and the like, which are not defined and do not fit within the nature of the Complainant’s actual role. The Association stresses, moreover, that there is no evidence from the actual decision-maker, Ms. Ue, that the work life of the Complainant changed as a result of the Employer’s application of these concepts. The Association argues that the Employer has thereby created what the Association terms a “machine of justification” to deny the AWA Request, and urges me to find that these “buzz words”, in the absence of evidence as to what they actually mean, cannot be applied to the job in question in support of the denial of the AWA Request.
19The Association submits that the Employer was applying Article 47 improperly by essentially requiring an employee to “tip the scales” in an “extraordinary” way for a request to be accepted. In the Association’s view, the language of Article 47 does not reflect such a requirement. As such, the ability of the Complainant’s manager to consider, in good faith, the Complainant’s AWA request to work from home for more than the three-day standard and the operational viability of AWA for that worksite, was fettered.
20The Association relies on the following arbitral jurisprudence in support of its argument that the Employer was imposing a blanket rule on the manager and hindering her ability to make an independent decision with respect to the Complainant’s AWA request: AMAPCEO (Roffey et al.) v. The Crown in Right of Ontario (Ministry of Children, Community and Social Services), 2024 CanLII 8294 (Anderson) (“Roffey”); AMAPCEO (Wildman) v. The Crown in Right of Ontario (Ministry of Natural Resources and Forestry), 2024 CanLII 62891 (Beatty) (“Wildman”); AMAPCEO (Salewski) v. The Crown in Right of Ontario (Ministry of Natural Resources and Forestry), 2024 CanLII 106429 (Gee) (“Salewski”); PEGO v The Crown in Right of Ontario, 2016 CanLII 7448 (Herlich) (“PEGO”); Re Toronto District School Board and CUPE (Hamilton), 2016 CarswellOnt 7214 (Steinberg); Re Ontario (Workplace Safety and Insurance Board) and CUPE Local 1750, 2015 CarswellOnt 6712 (Harris).
21While the Employer acknowledges that Article 47 imposes limits on the Employer’s management rights, it submits that this does not lead to the conclusion that management must automatically agree to an AWA request. The Employer stresses that what Article 47 provides for is mutual agreement and a good faith analysis of the AWA request as compared against the operational viability of the work site. In the Employer’s view, this requires that the decision be made in good faith, without discrimination, but it is within the Employer’s discretion to agree or not with the request. The Employer argues that in the present case there is no prima facie evidence of a discriminatory decision, or one made in bad faith, or any indication of nefarious motive or agenda on the part of the manager. It claims that all relevant factors were considered, and irrelevant factors rejected, as required under the test for management’s exercise of its discretion (set out further below).
22The Employer argues that there is no evidence that the Complainant’s AWA Request was not considered. It submits that a review of the evidence and documentary record before me supports that Ms. Ue sought to make the right decision with respect to the Complainant’s Request and issued her decision after making the appropriate enquiries. It argues that the written narrative of Ms. Ue – as further backed up by the Complainant’s current manager, Jennifer Baker – demonstrate that due consideration was given to the Complainant’s Request and to the specific circumstances of the operation. At the end of the day, both managers were unmoved by the reasons provided by the Complainant. The Employer acknowledges that the Interim Guidance was sent to Ms. Ue but states that the evidence does not demonstrate that she adhered to a rigid policy in making her decision. In any event, the Employer denies that the Interim Guidance sets out rigid directives, arguing that it simply points to the relevant information a manager should consider in exercising their discretion and, if the manager plans to deviate from this information, then there needs to be a discussion with HR. The Employer also pointed to Ms. Baker’s evidence with respect to the current workplace, which it submits is consistent with Ms. Ue’s decision and with a good faith analysis of the operational viability of the workplace as it now stands.
23In support of its argument, the Employer refers to the following arbitral jurisprudence: OPSEU (Neeb) v. The Crown in Right of Ontario (Ministry of Finance), January 31, 2003 (Abramsky); OPSEU (Lesieur et al.) v. Ontario (Ministry of the Environment), December 14, 2005 (Briggs); Roffey, supra; AMAPCEO (GAM) v. The Crown in Right of Ontario (Ministry of Health and Long Term Care), 2018 CanLII 65624 (Herlich); Viterra Inc. v. Grain and General Services Union (Job Classification Grievance) (2010), 202 L.A.C. (4th) 411 (Hood).
24Lastly, while the Association maintains that the evidence clearly establishes a breach of Article 47 through the Employer’s application of a blanket three-day in-office rule, it further submits that, should I not accept that position, the facts nonetheless warrant drawing an adverse inference against the Employer for failing to call Ms. Ue to testify. The Employer argues that no adverse inference should be drawn, as Ms. Ue is on statutory approved parental leave and no longer in the role. It submits that her evidence was therefore not relevant, and that it properly relied on the Complainant’s current manager, Ms. Baker, as its witness.
Analysis and Decision
Relevant Provisions
25The Collective Agreement provisions central to the present dispute are set out below:
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 their manager. In considering any AWA, the manager will consider, in good faith, both the employee’s request and the operational viability of the AWA for the work site. [Emphasis added.]
Legal Principles
26The Association is alleging that the Employer breached Article 47 by not properly exercising its discretion or by treating the reference to the three days’ model of onsite work in the SOC Memos and the Interim Guidance, as a rigid rule.
27Given that the onus lies with the party making the allegation to prove that allegation on a balance of probabilities, it is the Association’s burden to establish that the Employer acted in bad faith in exercising its contractual discretion, ie.by applying a blanket rule to deny the Complainant’s AWA request. The Association must therefore lead evidence to show this was the case. The Employer does not need to prove good faith proactively, although once the Association has established its claim on a prima facie basis, the evidentiary burden may shift to the Employer to explain its rationale and demonstrate good faith.
28Although the parties differ on whether the test has been satisfied in this case, they are agreed that management’s exercise of discretion must be assessed against the fourfold test articulated in Kuyntjes and Ministry of Transportation and Communications (1984), GSB No. 513/84 (Verity):
The decision must be made in good faith and without discrimination.
It must be a genuine exercise of discretionary power, as opposed to a rigid policy adherence.
Consideration must be given to the merits of the individual application under review.
All relevant facts must be considered and conversely irrelevant considerations must be rejected.
This test is expressly incorporated into the Interim Guidance (at pages 15-16)
29Article 47 also specifically provides that, in considering any AWA, the manager is required to consider, in good faith, both the employee’s request and the operational viability of the AWA for the work site. The manager’s decision must be made without discrimination and it must be a genuine exercise of discretionary power; the manager must consider factors relevant to the employee’s request and to the operational viability of the AWA for the work site - other factors are irrelevant and must be rejected; and consideration must be given to the merits of the individual application.
30In three recent decisions addressing requests for AWAs1, the Board has emphasized that while managers retain discretion under Article 47, that discretion must be exercised in a genuine and individualized way. In particular, where the two SOC memos are interpreted and applied as a prohibition on a manager granting an AWA that includes more than two days of work from home each week and, on that basis, an employee’s request for an AWA is denied, Article 47.1 has been violated. In Roffey, the Board held that the Employer improperly treated the SOC Memos as a blanket rule, thereby fettering discretion and failing to consider the complainants’ specific circumstances. In Wildman, the Board again found that the Employer’s reliance on general operational assertions, without a concrete, case-specific assessment, was insufficient to justify the denial of an AWA. Similarly, in Salewski, the Board concluded that the manager had placed undue weight on the SOC Memos, effectively restricting her ability to consider an AWA of more than two days work from home. Taken together, these cases establish that AWAs are a matter of managerial discretion, but that discretion must be exercised in good faith, transparently, and on an individualized basis, rather than by rigid adherence to policy statements or blanket operational rules.
Adverse Inference
31It is necessary to address the Union’s submission that an adverse inference should be drawn before turning to the merits of whether the Employer’s conduct breached the collective agreement.
32Adverse inference is a well-established principle that permits an arbitrator to draw a negative inference against a party that fails to call evidence within its control. The inference is that the absent evidence would likely have been adverse to that party’s position. However, such an inference is not automatic; it is discretionary unless all the circumstances warrant it. It requires a case-specific inquiry into the circumstances, including whether there was a legitimate explanation for not calling the witness, whether the witness was within the exclusive control of the party or equally available to both parties, and whether the witness had material or best-available evidence on the issue.
33In the present case, Ms. Ue made the decision to deny the Complainant’s AWA Request. While I reject the Employer’s claim that Ms. Ue’s viva voce evidence would not be relevant because she is no longer the Complainant’s manager, the Employer provided a clear and what I accept as legitimate explanation for not calling her: she was on statutory approved parental leave.
34The Employer argues that the Association could have chosen to call the manager had they wished to produce her evidence. The Association submits in reply that it was incumbent on the Employer, as the party responsible for adducing evidence about its reasons for making a decision based on a Collective Agreement provision, to call the decision-maker. It further argued that it is the party who is expected to call the evidence who is subject to the adverse inference and the Association cannot be expected to call that evidence or else suffer for not doing so. In its view, this would constitute an adverse inference against the Association. As indicated previously however, the onus in this case is on the Association to establish prima facie that the Employer acted in bad faith in exercising its contractual discretion; the Employer was not required to call the decision-maker in order for the Association to discharge its burden. While I recognize there are challenges inherent in the Association calling the manager as a witness, I am unable to conclude that the witness in this case was in the exclusive control of the Employer.
35Most importantly, the Association had available the detailed and contemporaneous documentary record relating to the manager’s consideration of the Complainant’s AWA Request. I do not find that the parties’ reliance on that record in place of oral testimony resulted in procedural unfairness. The documents were admitted into evidence without objection (as set out further below), obviating the need to call the witness, and have been weighed on their merits in the context of the submissions made by both parties.
36In these circumstances, I am not prepared to draw an adverse inference from the Employer’s failure to call Ms. Ue.
The AWA Request
37Although Ms. Ue was not called as a witness, the documentary record produced sets out in some detail the steps she took in receiving the Complainant’s Request and rendering her decision. In addition, Will-Say Statements for each of the Complainant, as the Association’s one witness, and Ms. Baker, as the Employer’s one witness, were provided along with the presentation of limited viva voce evidence respectively. Both witnesses were subject to cross-examination on their respective Will-Say Statements. While I considered all the evidence in deciding whether Ms. Ue’s discretion to consider the Request in good faith was fettered, it is particularly useful to consider the documentary record. This includes the AWA Request itself and correspondence between Ms. Ue and the Complainant, internal correspondence between Ms. Ue and Human Resources (“HR”), and relevant policy documents, all of which were admitted without objection. The Association drew on significant portions of this record and relied on them extensively to support its case. Neither party contested the authenticity or accuracy of these documents, and I therefore accept them as a reasonably full and accurate contemporaneous account of the circumstances under which the decision was made. While each side offered its own interpretation of the documentary record in support of its respective position, there is no material dispute as to the underlying facts.
38In his initial Request on June 23, 2023, the Complainant sought to work remotely 5 days per week, with the arrangement to start on July 3, 2023, and end on July 3, 2024. The Request is set out below:
I am writing to request an alternative work arrangement.
As you know, under the AMAPCEO OPS Collective Agreement, and as described in the OPS Flexible Work Policy, employees are able to request one or more of these agreements.
The OPS Flexible Work Strategy outlines the many benefits of flexible work. According to the Strategy,
“Increased flexibility in when, where and how employees work can have positive impacts on talent management, employee commitment and engagement, as well as business and operational outcomes and ultimately customer satisfaction.” (OPS Flexible Work Strategy, p.12)
Specifically, I am requesting:
Remote Work
I would like to work remotely for: 5 days a week
I would like to work remotely on: Mondays
Tuesdays
Wednesdays
Thursdays
Fridays
I would like this arrangement to start on: 07/03/2023
And end on: 07/03/2024
Two of these remote work days are currently covered under the Return to OPS Workplace plan, and three are pursuant to the AMAPCEO OPS Collective Agreement. When this plan ends, all five will be pursuant to Article 47 of the AMAPCEO OPS Collective Agreement.
I have prepared the attached for your consideration and signature.
Please let me know if you have concerns with my request, and we can discuss them. I think that we can work together to find a schedule that is supportive of our operational needs, while allowing better work/life balance!
I look forward to hearing back from you as soon as possible.
39As such, the Complainant advised that two of the requested remote work days were “covered” under the existing Return to OPS Workplace plan, the other three requested days were made pursuant to Article 47 of the Collective Agreement, and that following the end of the Return to OPS Workplace plan, the request for all five days would be pursuant to the Collective Agreement.
40In reply to the Employer’s argument that a 5-day request set a problematic precedent for the Employer, Association counsel noted her recollection from the Complainant’s verbal testimony that the Complainant expected his request for 5 days work from home to lead to a discussion about an arrangement of fewer than 5 days. It is possible that the Complainant’s statement in his initial AWA Request that he thought he and Ms. Ue could “work together to find a schedule that is supportive of our operational needs, while allowing better work/life balance” could support this view. In any event, I do not find this sufficient to support that the Complainant’s Request had been varied to reduce the number of days requested. In fact, the Association objected to evidence being produced by Ms. Baker relating to a possible reconsideration request that may have been made subsequently to her by the Complainant. Ms. Baker assumed the role of the Complainant’s manager at the CRU in October 2023. I upheld the objection as this evidence did not relate to the grievance under review. Likewise, I find that the AWA Request and the manager’s denial that are the subject of the grievance before me specifically relate to the Complainant’s Request to work from home for five days per week and that is what I must address in this decision.
41Given the Association’s argument that the manager’s discretion in deciding the Complainant’s Request was fettered, it is important to review the sequence of events relating to Ms. Ue’s denial. This provides the proper context for assessing whether she in fact exercised independent judgment, or whether her decision was improperly constrained by external directions or policies, i.e. whether work tools employed by the Employer such as the SOC Memos, the Consolidated Statements of Work used in deployments, or the Interim Guidance functioned as guidelines or advice, leaving room for discretion, or whether these effectively operated as a directive that removed the manager’s ability to genuinely consider the Complainant’s individual circumstances and the operational viability of the worksite.
42The day Ms. Ue received the Complainant’s Request, she forwarded it to Mary-Ruth Sturch in HR, asking whether she (Ms. Ue) could request more information from the employee around “rationale, etc.” and seeking advice on “what I need to do next”. The Association argued that these statements in Ms. Ue’s email were indicative of the lack of freedom that managers have to look at and respond to AWA requests. I do not, however, find it unreasonable that Ms. Ue sought advice on next steps in responding to the AWA Request. Nor do I find that Ms. Ue’s query as to whether she could seek information from the Complainant about rationale, etc. showed a lack of open-mindedness; rather it indicated a desire to understand the reasons for the Request.
43Further, as demonstrated in Ms. Sturch’s response of the same day, Ms. Sturch did not instruct Ms. Ue how to respond but rather directed Ms. Ue to the recently issued Interim Guidance, which she also attached to the email:
The Manager Guidance (interim) on the Return to OPS Workplace and Alternative Work arrangements (attached) are to be used for new AWA requests. The template AWA agreement that AMAPCEO has designed does not provide the considerations that managers need to use in the determination of whether or not the request may be granted.
If you would like to review these materials we can meet next week to discuss any questions you may have in applying the guidelines as well as to discuss what this employee is asking for in terms of their request for an AWA.
44Ms. Ue replied to Ms. Sturch’s email on June 23, 2023, asking to be directed to “a formal template that employees should use for new AWA requests”. Ms. Sturch replied on June 26, 2023, indicating that following the manager’s receipt of the employee’s AWA request, the manager should obtain further information. Ms. Sturch referred to a managers’ session the previous week regarding the new “interim guidelines” and stated that if the manager had any questions or clarification needed, they should consult with the Human Resources Advisor (“HRA”). Ms. Sturch again directed Ms. Ue to the Interim Guidance she had previously sent “for reference” and advised Ms. Ue that “new AWA agreements that are outside of the three (3) days onsite model should be discussed”. Finally, Ms. Sturch noted that if the request was approved, an agreement would be filled out and signed off and that the AWA template for AMAPCEO-represented positions was in the Collective Agreement.
45The Association submits that Ms. Sturch’s reference to “new AWA agreements […] outside of the three (3) days onsite model” constituted a “smoking gun” or, at a minimum, another piece of a smoking gun. In its view, this wording demonstrates that the employer had created a rule of three days working onsite and two days from home, that the three days established by the SOC Memos is the “goalpost”, that this was the employer’s choice alone, and that it supplanted article 47 by converting what the Employer refers to as a “model” into a norm or rule, thereby skewing the manager’s ability to properly apply article 47.
46The Employer contends that nothing in the correspondence between Ms. Ue and HR, or in the documentation referred to by the Association, imposes a rigid directive to managers in considering an AWA request; rather, managers are referred to the relevant information they should consider in exercising their discretion and if the manager plans to deviate from this information, then there needs to be a discussion with HR. I note that this recommendation is also reflected in the Interim Guidance (e.g., at FAQ 5). In the Employer’s view, the Interim Guidance simply reflects a gathering of expert evidence from HR, without which most managers would have no idea about, for example, the fourfold test for exercising managerial discretion which is included in the Interim Guidance (at Section 7, Step 2, page 15).
47It is clear on the facts that Ms. Ue’s immediate response to the Complainant’s AWA Request was to forward the Request to HR for advice on what to do next. The Interim Guidance (at page 20) also indicates that managers are “strongly recommended” to engage with HR before responding to AWA requests. In and of itself, however, I am not persuaded that this demonstrates a fettering of Ms. Ue’s discretion. Managers are expected to – and frequently do – seek guidance from HR to ensure they properly understand and apply employer policies, guidelines or past practices. Absent a rigid rule that essentially replaces the manager’s individual judgement, such consultation is advisory and can reasonably assist managers in applying their discretion in a generally consistent fashion across the organization. It also helps managers account for human resource obligations that may not be apparent to them, but which HR, by virtue of its role, is responsible for identifying and advising on. The Interim Guidance advises managers of the importance of consistency (for example at FAQ 4), including in the application of decision-making principles, while nevertheless making it clear (in several locations throughout the document) that “individual requests must be considered on a case-by-case basis, and must not be automatically or arbitrarily denied.”
48Likewise, I am not persuaded on its face that the wording of Ms. Sturch’s June 26, 2023, response demonstrates a lack of freedom for Ms. Ue to exercise her discretion in considering an AWA request, nor that Ms. Ue’s consultation with HR supplanted her discretion. While Ms. Sturch clearly refers to the “three day onsite model” as the standard approach, the email wording also makes clear that requests outside of that model are possible and “should be discussed.” In my view, rather than imposing a rigid rule, this language signals some flexibility, namely that requests beyond the model are not automatically rejected but rather call for consultation and discussion. It suggests a framework or guideline rather than a rigid rule; while managers are expected to work within the general model, they are not precluded from considering exceptions. The requirement to consult HR and follow interim guidelines does not, in itself, eliminate managerial discretion.
49Furthermore, as the arbitrator stated in Roffey (at paras 65 and 66), the Employer can direct its manager to always grant a request for an AWA up to an office standard and can issue guidelines with respect to an AWA of a longer length. The “three day onsite model” referred to here can be seen as such a guideline. Viewed this way, it is not surprising that there would be a reference to this baseline in setting out guidelines for an AWA of more than two days remote work.
50Ms. Sturch’s comments in her June 26, 2023 email regarding what to do if the request was approved also suggest that HR contemplated the possibility for a manager to agree to an AWA providing for less than three days in the office and signalled to the manager that this was possible – it just needed to be discussed.
51On the whole, I do not find the process outlined in Ms. Sturch’s email indicating the manager should consult HRA with any questions or clarification and to apply the “interim guidelines” surprising or further proof of fettered discretion. Managers do not have free, unlimited discretion but they also are not bound to a single outcome. As long as HR’s role is advisory and not determinative, which I find is the case here, the manager’s discretion is not necessarily fettered by a recommendation – or “strong recommendation” as set out in the Interim Guidance – to consult.
The Denial
52The documentary record further sets out the steps taken subsequently by Ms. Ue in processing the Complainant’s Request and finalizing her response.
53Ms. Ue replied to the Complainant’s Request on June 26, 2023, asking him for additional information including why the AWA was being requested and whether there were any related circumstances and facts for consideration. She also advised the Complainant that “all new remote work requests are to be assessed against the non-pandemic standard of 5 onsite work days per week.”
54The Association submitted that the Employer’s insistence on assessing the Request against the pre-pandemic standard of five days was essentially a fiction given the existence of the three-day model in place at the time. While I do not find that anything turns on this point, the reality is that some OPS employees work in the office five days per week due to the nature of their work. For the employees in question here, the evidence supports that the expectation at the time was that they only be in the office three days per week. This meant that these employees were already able to work two days from home.
55The Complainant replied to Ms. Ue’s email on July 12, 2023, stating that he was replying “in an act of good faith” as he believed “these requests should not be required to determine the operational feasibility of my AWA”. By way of additional information, the Complainant advised (among other things) that:
his Request aligned with the Employer’s Flexible Work Strategy and the Collective Agreement, both of which he said promote flexibility as a means of enhancing engagement, retention, performance, and organizational outcomes;
at a personal level, his work was more effectively performed from home, as confirmed by consistently strong performance feedback, and remote work supported government objectives such as environmental protection, real estate reduction, and employee well-being;
at the ministry level, there were no regular operational or ministry-level requirements for in-person attendance, and he could address such obligations on an ad hoc basis;
at the team level, his Request aligned with schedules, core hours, and work requirements while fostering collaboration, equity, and inclusion;
at the employee level, the arrangement would have no adverse impact on performance measures, professional development, or supervision, and would ensure equitable treatment with colleagues already working beyond the standard three-day model.
56Ms. Ue replied to the Complainant the same day, thanking him and advising him she would review.
57On August 1, 2023, Ms. Ue emailed Jyotish Soni in HR, indicating that she had consulted with Ms. Sturch on the Complainant’s AWA request and that they were aligned in terms of her decision. Ms. Ue included in her email the following draft response she had prepared to go to the Complainant which briefly set out the elements she considered in deciding to deny the request along with some information relating to AWAs, remote work, and the CRU:
Please note that all new remote work requests are to use the non-pandemic standard of 5 on-site work days per week as the baseline against which to assess the request. After reviewing your request to work remotely 5 days per week, consulting with our HR Advisor, and taking into account enterprise, ministry, and local unit requirements, I am not approving this request.
Based on the manager’s guidance, AWAs must not fundamentally transform the business or delivery model for a work unit. Transitioning to fully remote work would impact the current operations of the unit, which is client focused. As internal consultants in the OPS, we are expected to align with the client’s work schedule and location, which aligns with the enterprise direction of 3 on-site days per week. This ensures full integration with the client’s team during deployments. In cases where the client is not located in Toronto, the consultant would work from the CRU’s office at 7 Queen’s Park Cres. East. and visit the client’s office, if needed, based on discussions between the client, CRU manager and consultant.
Should you wish to discuss this matter further, please let me know, and I will be happy to schedule a chat.
58Ms. Ue asked Mr. Soni to review the draft response and to let her know if he had any suggestions. On August 3, 2023, Mr. Soni advised Ms. Ue that he had sent the draft to ERA for review and advice, and would get back to her when he received a response.
59Ms. Ue followed up with Mr. Soni on August 4, 2023, highlighting what she characterized as “minor updates” she had made to the draft response and reiterating that she was open to thoughts from him and the ERA. Ms. Ue’s edits included the following:
In the first paragraph, she added the words “individual circumstance” to the previously included elements that she had considered in making her decision;
At the outset of the second paragraph, she struck out the phrase “Based on the manager’s guidance”, and replaced it with “Based on the advice”;
She added a new third paragraph stating, “The OPS employer values in-office collaboration and the expectation is for all employees to attend the onsite workplace a minimum of 3 days per week.” [Emphasis added.]
60After some further follow-up by Ms. Ue with HR and Ms. Ue’s Director, Mark Lyons, and upon receiving confirmation that the Assistant Deputy Minister’s Office was comfortable with sending the response, Ms. Ue sent this response to the Complainant on September 25, 2023, with two very minor edits added by HR. These included adding the words “you have provided” after “individual circumstance” (in paragraph 1), and removing “Based on the advice” at the outset of paragraph 2.
61The Association acknowledged that in adding “individual circumstance” to her considerations, Ms. Ue echoed what she was supposed to do in Article 47. However, the Association submitted that Ms. Ue’s edits in adding the new third paragraph again constituted a “smoking gun” – or part thereof. It pointed to Ms. Ue’s reference to the Employer’s “values” (i.e., collaboration) as a failure in the application of Article 47 given the requirement to consider operational requirements. The Association also pointed to Ms. Ue’s statement of the expectation that “all employees attend the onsite workplace a minimum of 3 days per week” as clear evidence that this was the sole reason for the denial of the Complainant’s Request.
62On the whole, I am not persuaded by the Association’s interpretation of Ms. Ue’s response to the Complainant. Rather, I find the documentary evidence is consistent with Ms. Ue making her own decision in response to the Complainant’s AWA Request, and in any event does not establish that she did not. In Ms. Ue’s initial email to HR, she first asked if she could seek additional information from the Complainant, then proceeded to do so before rendering her decision. This was not something she was instructed to do as a mere technicality. In his July 12, 2023, email, the Complainant provided her with additional information. Ms. Ue’s written response to the Complainant on September 25, 2023, sets out the considerations she weighed, including the Complainant’s individual circumstances generally. There is insufficient evidence to conclude that this general reference meant his individual circumstances were ignored. On the contrary, the other comments in the response indicate that Ms. Ue engaged with the Complainant’s Request and applied her judgment to the particular context of the unit.
63It is important to also consider the reference by HR to the Interim Guidance and its potential bearing on Ms. Ue’s decision. Ms. Sturch seems to refer to the Interim Guidance as “interim guidelines” in her email, and on several occasions refers and directs Ms. Ue to them as a resource. The Association acknowledges that the Employer is permitted to create guidelines with respect to the exercise of managers’ discretion in considering AWA requests, provided that such guidelines are consistent with the requirements of Article 47. I am in agreement. I am not persuaded, however, that the Association has demonstrated that the Interim Guidance was not compliant with Article 47. It is clear, and the Association has acknowledged, that the Interim Guidance includes various elements required to demonstrate a proper application of discretion, in particular by making multiple references to, and setting out, the fourfold test that applies to management’s exercise of discretion. The Association views these references as mere lip service and argues that there is no evidence that the Employer actually followed the test, submitting rather that HR makes the three day in-office attendance the only option available to managers.
64In my view, the Interim Guidance satisfies the type of “guidelines” contemplated by the arbitrator in Roffey (at para 66) with respect to a Collective Agreement provision such as Article 47, which grants discretion to the manager. In Roffey, the arbitrator specifically recognized that an employer may properly issue general guidelines to managers, provided that such guidelines are intended to promote consistency with the Collective Agreement provision granting discretion and are not applied as rigid rules that fetter the exercise of that discretion. The Interim Guidance functions in this way: it sets out expectations and considerations to be applied across the organization, but does not remove the obligation of an individual manager to assess the specific circumstances of each request in good faith. Accordingly, the Interim Guidance is properly characterized as a guideline within the meaning articulated in Roffey.
65The Association, moreover, cannot rely solely on the absence of direct evidence from the Employer about the manager’s application of the fourfold test. It must provide a factual foundation from which the Board could infer that the fourfold test was not applied or that discretion was exercised in a discriminatory or inconsistent manner. Until that threshold is met, the evidentiary burden does not shift to the Employer to justify its decision. The lack of detail from the Employer, on its own, is not sufficient. That said, the documentary record was admitted on consent as authentic and for the purpose that the person made the statement which they are purported to have made in the document. That record contains several elements which indicate on their face that the manager applied the fourfold test: she wrote that she considered the individual circumstance provided by the Complainant as well as operational needs of the unit including in-office collaboration, the client focused nature of the work of internal consultants, the expectation to align with the client’s work schedule and location, and full integration with the client’s team during deployments. In short, Ms. Ue’s written response to the Complainant indicated that discretion was exercised. Even though Ms. Ue referenced “the expectation is for all employees to attend the onsite workplace a minimum of 3 days per week,” given the other statements/factors noted in her response to the Complainant, I do not find that it demonstrates Ms. Ue setting out a rigid rule that she followed.
66I find it likely, based on the wording of Ms. Ue’s explanation to the Complainant, that she reviewed the Interim Guidance to some extent and applied it to the specific operational realities of her unit. In doing so, she considered both the general framework and the particular circumstances of her team. Ms. Ue also sought out additional information from the Complainant. She therefore had information from him about his circumstances that she could consider and weigh against operational realities. While her draft response was subject to some back-and-forth with HR, the revisions made by HR were minimal and did not alter the substance of her rationale. I therefore am not persuaded that Ms. Ue failed to turn her mind to the merits of the Complainant’s individual application. Nor does this evidence on the whole suggest that relevant factors were not considered or that irrelevant factors were not rejected.
67The Association expressed its view that by forwarding the Request up the line, the Employer seemed to treat the Complainant’s Request like a “hot potato”, thereby suggesting that Ms. Ue passed the Request off for someone else to decide. If this were true, it might well indicate that her discretion was fettered. In my view, however, the evidence demonstrates that Ms. Ue took ownership of the Request; while she sought guidance and final approval to send her response, the response was hers.
68The Association submitted arguments to support that in-person attendance was not required for the Complainant to do his job effectively. Even if that were true, it is not the issue that I must decide. It remains the Employer’s prerogative, to be exercised reasonably, to determine the operational needs of the unit, and to decide what is operationally viable in in terms of effectiveness and efficiency at the particular work site.
69In my view, the Association has not, on the evidence before me, demonstrated that the three-day onsite model was applied as an inflexible or rigid rule, leaving no room for the manager’s individualized assessment. Rather, I find that HR’s advice and the wording of the Interim Guidance points to a structured process of review, and not to a wholesale removal of the manager’s ability to make a decision. The key is how the guideline – or other HR advice – is applied in practice and, in this case, the evidence did not demonstrate that the guideline – or other HR advice – operated as a hard rule. I find, on the whole and based on the documentary evidence which was filed without objection, that the manager exercised her discretion in good faith.
70In summary, I am not persuaded that the Association’s arguments, either separately or taken together, establish that Ms. Ue’s ultimate decision was discriminatory, made in bad faith, or influenced by irrelevant considerations, or that she failed to give genuine consideration to the merits of the Complainant’s Request.
Recent AWA Arbitral Caselaw
71The Association submits that the evidence in this case tells the story in the same way it has been told in the prior three recent GSB decisions dealing with AWAs, (i.e., Roffey, Wildman, Salewski), namely that the SOC Memos and related HR direction have been applied as binding rules thereby displacing the genuine exercise of managerial discretion under Article 47. Upon my review of the cases in comparison to this one, however, I disagree.
72These cases are decided on a case-by-case basis, having regard to the individual facts, including the decision-making process and reasoning of the particular manager. Unlike the Board’s decisions in Roffey and Wildman, I am not persuaded that the evidence here supports that the manager’s discretion was fettered. In Roffey, the issue was that the Employer interpreted the SOC Memos as imposing a blanket rule on the unit: it allowed only up to three days of remote work on the basis of the unit’s pre-pandemic practices, and refused to recognize its subsequent offer to staff of four remote days, thereby limiting staff options in all cases without an individualized assessment. As indicated above, I do not find here that the Interim Guidance or HR input were treated as a rigid rule, but rather as a framework within which the manager assessed the Complainant’s Request. Nor do I find that Ms. Ue’s decision was dictated by senior management rather than made independently, as in Wildman. In this case, by stating to Ms. Ue that if Ms. Ue approved the Complainant’s Request an agreement would be filled out and signed off, HR – to whom Ms. Ue turned for guidance –indicated that approving the request of additional days working from home was a possibility that could be agreed to.
73With respect to the Board’s decision in Salewski, the Association submits that it resembles the present case in that the Board found that the employer considered the SOC Memos as pre-eminent, and that the manager treated those memos as limiting her ability to approve an alternative work arrangement of more than two days at home. In the Association’s view, that reliance led the Board to conclude that the manager’s discretion had been effectively displaced by policy direction.
74In my view, the facts of Salewski are distinguishable from the facts of the present case. In Salewski, the arbitrator found the manager’s discretion was effectively displaced by policy direction because, in practice, she treated the SOC Memos as setting a hard rule and she expressly required “exceptional circumstances” or “necessity” before she would approve more than two remote days. She had also sought language from HR to deny the request and was coached by HR that approvals must align with SOC direction.
75In the present case, the documentary record showed that Ms. Ue took concrete steps to apply her mind to both the Complainant’s Request and the Unit’s operational needs. This included engaging with the Complainant’s Request, seeking additional information, and applying her own judgment. She also set out her rationale in writing, referred to aspects of the Interim Guidance, and tied it to the operational realities of her unit. While her response referenced the Complainant’s “individual circumstance” in only general terms, her actions went beyond mere token acknowledgment. In my view, this showed her consideration of the Complainant’s individual circumstances in conjunction with the specific operational needs of her unit. Taken together, these factors indicate that Ms. Ue retained and exercised genuine discretion, rather than merely giving lip service to it.
76The Association also referred me to Arbitrator Herlich’s decision in PEGO in support of its claim that blanket rules will always offend discretionary options, because by their very nature, they fetter/usurp that discretion. As indicated above, I do not find that a blanket rule has been applied in this case. I would also distinguish a straight application of the PEGO case on its facts given the difference in the wording of the collective agreement provision. In particular, while the collective agreement in the PEGO case stated, similarly to the present provision, that work arrangements “may be entered into by mutual agreement”, it added the phrase “in accordance with current practices”, and also required the Employer to “make every effort to accommodate the employee’s request, subject to operational requirements”.
Conclusion
77I find that the Employer did not fetter the manager’s discretion or otherwise act contrary to Article 47. The documentary record demonstrates that the manager considered the Complainant’s request and applied her judgment to the operational needs of the unit, consistent with the requirements of the Collective Agreement. I am further satisfied that an adverse inference should not be drawn from the Employer’s decision not to call the former manager, given the legitimate explanation provided and the adequacy of the documentary evidence. Accordingly, the grievance is dismissed.
Dated at Toronto, Ontario this 9th day of October 2025.