Management’s right to decide who could have training subsidized was not fettered by the collective agreement. But that discretion did not extend to proposing a threshold that was inconsistent with the purpose of the provision.
Refused a subsidy to study Building Environmental Systems by his employer, a caretaker grieved.
Employed by a large school board, D.B. was a caretaker with 14 years’ service when he sought pre-approval for a subsidy to take courses at a community college.
Under the collective agreement, employees were entitled to “Educational Allowances” amounting to 50 per cent of tuition for courses taken at the behest of the Board. Also, employees who took courses on their own initiative that were related to their jobs were also entitled to a subsidy if they arranged pre-approval from the employer.
D.B. fell into the latter category.
In 2009, D.B. enrolled in courses leading to a Class II certificate in building operations. His application to the employer for pre-approval for a subsidy was denied. The employer said that the requested subsidy was denied because the qualifications that D.B. sought were not a requirement of his current job.
The union grieved.
Discretion in question
The union agreed that the employer had the right to exercise its discretion when pre-approving tuition subsidies, but in this case the employer had misread the collective agreement.
The employer’s interpretation of the contract language would render the entitlement meaningless. Obviously, the union said, every worker in his or her present job must be presumed to already have the necessary qualifications.
Management rights authorized the employer to exercise its discretion in light of financial or operational considerations but that wasn’t what happened here, the union said. The employer had exercised its discretion in an unreasonable manner in this case because it was wrong, in the sense that the decision was inconsistent with the collective agreement.
Right to be wrong
The employer argued that the onus was on the grievor to establish that the employer had acted arbitrarily or in bad faith. It had not. The employer may have been wrong in how it interpreted the necessity that the courses be job-related, but it still had the right to exercise discretion. The employer was not obligated to subsidize D.B.’s training for a future job. Even if the employer was wrong, it had the right to be wrong.
The Arbitrator disagreed. “[T]he employer violated [the collective agreement provisions on Educational Allowances] by applying the wrong standards and/or taking irrelevant considerations into account in the exercise of its discretion.”
The exercise of its discretion according to management’s rights under the contract did give the employer the right to be wrong where the collective agreement was silent, the Arbitrator said.
“[B]ut here where the collective agreement has express provisions dealing with the subject of tuition reimbursement establishing standards for its administration, the Employer’s exercise of its discretion must be within those standards and its failure to do so will open the matter to arbitral review.”
No discretion to apply incorrect standard
Where the contract said that potential courses must be “related” to an employee’s employment, in its rejection letter, the employer had incorrectly chosen to inflate that reference into a “requirement” of the employee’s job. This was incorrect. The employer was not entitled to use its discretion to apply a higher or incorrect standard, the Arbitrator said.
“[T]o the extent it appears that the real issue between the parties is whether the employer is obliged to consider pre-approval for an academic or technical course that is geared towards promotional opportunities of employees, it is my opinion that once a course of instruction is shown to be “related to” the employee’s general employment, which in the present case is a caretaker, it doesn’t matter that the primary benefit of the training is to put the employee in a better position for promotional opportunities along the logical line of progression of the employee’s vocation within the bargaining unit … The employer’s apparent rejection of [D.B.’s] application because it also relates to promotional opportunities for a head caretaker role is an example of the employer adopting an irrelevant or inappropriate standard in the exercise of its discretion to grant its pre-approval that is inconsistent with article V.2 [on educational allowances] and other provisions of the collective agreement.”
The employer violated the collective agreement.
The employer was ordered to contact D.B. and determine whether he still had interest in pursuing the courses. If so, the employer was ordered to reconsider his request for pre-approval according to the proper standards.
Reference: Toronto District School Board and Canadian Union of Public Employees, Local 4400. Gordon F. Luborsky – Sole Arbitrator. Mandy Wojik for the Union and Grant Bowers for the Employer. January 27, 2011. 25 pp.
