P-2002-0003

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Ron Chyczij

Grievor

• and -

The Crown in Right of Ontario (Ministry of Labour)

Employer

BEFORE

Kathleen G. O’Neil

Vice-Chair

FOR THE GRIEVOR

Ron Chyczij Alexandra Chyczij

FOR THE EMPLOYER

Yasmeena Mohamed Senior Counsel Ministry of Government Services

TELEPHONE CONFERENCE

March 14, 2007.

Decision

This decision deals with the grievor’s request for an order for production from the employer, and certain other procedural matters.

The employer has produced documents to the grievor which it considers relevant to his grievance which contests the denial of a request for tuition assistance. The grievor finds the production inadequate, and by way of letter dated February 27 asked for additional production and disclosure of information he submits is arguably relevant. When the employer maintained its position as to the appropriate level of disclosure, the grievor asked for an order and submissions were heard by way of conference call.

The first three requests were:

1.Any and all current and past Government of Ontario policies, procedures, directives, position papers and initiatives pertaining to employee education, training and/or development

2. Any and all current and past Ministry of Labour policies, procedures, directives, position papers and initiatives pertaining to employee education, training and/or development .

3. Any and all current and past Pay Equity Commission policies, procedures, directives, position papers and initiatives pertaining to employee education, training and/or development.

No further disclosure is necessary in response to these three requests, as I accept employer counsel’s submission that she has disclosed the three relevant policies of which she is aware, and on which she intends to rely, and the grievor has not identified any others.

The following two requests were discussed together:

4. A record of all education, training development, seminar and conference expenditures for employees at the Pay Equity Commission since its inception (including all those in Senior Management Group, Management & Excluded, OCCA/ALOC, AMAPCEO, PEGO, OPSEU and any other positions.

5. A record of all education, training development, seminar and conference expenditures for employees at the Ministry of Labour since 1997 (including all those in Senior Management Group, Management & Excluded, OCCA/ALOC, AMAPCEO, PEGO, OPSEU and any other positions).;

In response to these two requests, the employer has produced information in respect of the Pay Equity Commission from 1998 to 2003. The grievor wishes the information back to the Commission’s inception in 1990 and until the present, as well as the same information for the whole of the Ministry of Labour. I am not persuaded that records from any longer period than 1998-2003 are arguably relevant in the sense of having a reasonable chance of being of assistance to the Board in deciding if the grievor was improperly denied tuition assistance in late 2001. Nor am I persuaded that the records of all Ministry of Labour employees are arguably relevant to the complaint, since the particulars recite, and the employer agrees, that the decision making on tuition assistance has been delegated to the Pay Equity Commission. Further, allegations set out in the grievor’s particulars are to the effect that the Pay Equity Commission, rather than some other branch of the Ministry of Labour, has improperly denied the tuition assistance. In sum, I find the request for the extended period of time and the reach to the whole of the Ministry of Labour calls for information too remote from the issue at hand to require its production.

The next two listed requests were similarly addressed together:

6. A record of the Pay Equity Commission’s annual budget and expenditures since its inception, with specific details as to the annual amount spent on employee education, training, or development and any attendance at conferences or seminars.

7. A record of the Ministry of Labour ‘s annual budget and expenditures since 1997, with specific details as to the annual amount spent on employee education, training, or development and any attendance at conferences or seminars.

The grievor seeks these documents because budgetary constraints were mentioned as a reason for not granting his tuition request, when he believes that the real reasons for the denial were other and improper. The employer objects to producing these records on the basis that the manner in which the government allocates its funds is its own prerogative, and not something properly the subject matter of a grievance. It is my view that the reality of the budgetary situation of the Pay Equity Commission is arguably relevant to the thrust of the grievance which is that the budgetary reason was a pretext for the real basis for the denial which is alleged to have been improperly influenced by factors such as personal dislike and reaction to the grievor’s role as spokesperson for a pay equity complaint against the Pay Equity Commission. However, as with the items dealt with above, I am unpersuaded that the budgetary information for the whole of the Ministry of Labour, or the whole of the life of the Commission, is relevant to the complaint against the Pay Equity Commission for a decision made in 2001. In the result, the employer is directed to produce an existing record of the Commission’s budget for the period 1998 to 2003. It would appear that the request for details as to expenditures on employee education and training for this period is covered by what has already been produced in response to item 4. above, and therefore no further order is necessary.

The remaining requests were based on the information received by the grievor from the employer in January 2007, of which the first six were discussed together:

8. A copy of the “Application for Staff Development” form used pertaining to the application and approval of Queen’s University Strategic Leadership Program (25 to 30 November 2001) and Human Resources Program (16 to 21 September 2001) as listed in your Exhibits C3 & C4 plus all supporting documentation including course descriptions and information as to who attended these programs.;

9. Information as to when these courses were approved and by whom, with supporting documentation including the Tuition Reimbursement Support Rationale form;

10. Any and all communications - written verbal or electronic - pertaining to these two applications;

11. A copy of the “Application for Staff Development” form used pertaining to the application and approval of Queen’s University Public Executive Program (8 to 20 September 2002) as listed in your Exhibit C5 plus all supporting documentation including course descriptions and information as to who attended this program.;

12. Information as to when these courses were approved and by whom, with supporting documentation including the Tuition Reimbursement Support Rationale form;

13. Any and all communications - written verbal or electronic - pertaining to this application;

The employer objects to the production of the above information on the basis that It is irrelevant because it is not the proper comparison. One of the employer’s reasons for the denial was that the course for which the grievor requested tuition assistance was not necessary for his job as a Review Officer, which is not a managerial position. The courses listed above were for managers, rather than Review Officers such as the grievor. Nonetheless, I find that this information is arguably relevant to the grievor’s theory of the case, which includes the assertion that training funds were being denied him in part as a result of a conflict of interest, in order to make them available for the deciding manager herself. The employer is ordered to produce any of the requested information that is in its possession in a producible form.

The next request was for:

14. Information as to when the Tuition Reimbursement Support Rationale form, was first introduced.

Employer counsel answered this question during argument: it was first used in 2002.

The next request was:

15. Information pertaining to MOL Tuition Reimbursement - Summary of Meeting 19 Oct 01 (your Exhibit D3) as to what applications were considered and what the decisions were with respect to each application;

Employer counsel said that she was prepared to look for information on this point in regards to the Commission. As for the following request:

16. Information pertaining to all other MOL Tuition Reimbursement Meetings, from 1997 to the current period as to who attended, what applications were considered and what the decisions were with respect to each application,

Employer counsel similarly said that she was prepared to disclose this information in regards to the Commission, which I consider to be sufficient for both requests.

The next request was for:

17. A copy of the completed Tuition Reimbursement Support Rationale forms used in regards to my applications for tuition assistance dated 23 April 2000 and 10 March 2001;

Employer Counsel ‘s information was that no such form exists for the grievor’s application. If such a form should be discovered, it should be produced forthwith.

The next request was:

18. Any and all communications - written, verbal or electronic - pertaining to my applications for tuition assistance;

Employer counsel did not object to this request, and said she would undertake to make sure nothing existed that had not already been produced.

The next request was:

19. Any and all succession plans and high potential/developmental potential lists prepared by the Pay Equity Commission and the Ministry of Labour;

This request calls for information which, in my view, is not arguably relevant and goes well beyond the matters put in issue by the grievance which relates to tuition assistance.

The final request is for:

20. A description of. any and all plans (1997 to the present), prepared by’ the Pay Equity Commission and the Ministry of Labour, that comply with OPS initiatives, directives, policies, procedures and guidelines pertaining to training, learning and/or development of employees;

I am not persuaded that this request calls for information that is arguably relevant to the subject matter of the grievance which is the denial of a specific tuition assistance request at the Commission, not an inquiry into a decade of planning as to training across the entire Ministry.

There was a disagreement about the scope of the grievance, as to whether it includes only the grievor’ tuition request filed on March 10, 2001, or also the one filed on April 23, 2000. The grievor’s particulars refer to both, and it is clear that he views them as one sequence, in that the application in 2000 lead to a conversation with his manager which resulted in his re-packaging the request for tuition assistance for the same course and re-submitting it in 2001. The employer views any grievance related to the first request as out of time. It is my view that nothing turns on this difference in the parties’ perception of the case at this stage of the proceeding. Evidence about the whole sequence will be relevant, and what effect the earlier portion of the dealings between the parties should have will be the proper subject matter of argument and remedy, if any, at the end of the day.

Employer counsel agreed to provide particulars of the employer’s position in response to the grievance, as well as a list of planned witnesses. I directed counsel to provide contact information for the former Pay Equity Commissioner so that the grievor may re-serve a summons for the new hearing dates.

Counsel is to advise the grievor as to whether she agrees that government documents may be entered on consent, and to specify any that she will argue require proof through a witness.

Any information directed or agreed to be produced above should be produced to the grievor as soon as possible and no later than March 30, 2007. If there are any further difficulties as to production between the parties, the Board is to be contacted forthwith.

On consent of the parties the hearing previously scheduled for March 21 has been adjourned and the matter will reconvene on April 27 as scheduled.

Dated at Toronto this 16^th day of March, 2007