FPSLREB Decisions

I. Individual grievance referred to adjudication

1 On November 22, 2010, Craig O’Brien (“the grievor”) filed a grievance against the Department of National Defence (“the employer”) for its denial of his request for education leave for the period of November 15, 2009 to September 13, 2010. The grievor alleged that the employer violated clause 18.02 of the collective agreement between the employer and the Professional Institute of the Public Service of Canada for the Health Services Group bargaining unit (expiry date: September 30, 2011) (“the collective agreement”). As corrective action, the grievor requested that the employer approve his request, including an allowance in lieu of salary during the period of the education leave.

2 At the first level of the grievance procedure, the employer answered that it did not have the authority to grant the corrective action and that the matter should be addressed at a higher level. After that reply, the parties agreed to refer the grievance directly to the final level. On February 18, 2011, the employer replied at the final level that the “… request for education leave was considered by the authorizing authority, but was denied due to operational requirements at the time of the request.”

3 The grieved clause of the collective agreement reads in part as follows:

18.02 Education Leave

(a) An employee may be granted education leave without pay for varying periods up to one (1) year, which can be renewed by mutual agreement, to attend a recognized institution for additional or special studies in some field of education in which special preparation is needed to enable the employee to fill his present role more adequately, or to undertake studies in some field in order to provide a service which the Employer requires or is planning to provide.

(b) An employee on Education Leave without pay under this clause shall receive an allowance in lieu of salary equivalent to from fifty per cent (50%) to one hundred per cent (100%) of the employee's basic salary. The percentage of the allowance is at the discretion of the Employer. Where the employee receives a grant, bursary or scholarship, the education leave allowance may be reduced. In such cases, the amount of the reduction shall not exceed the amount of the grant, bursary or scholarship.

…

II. Summary of the evidence

4 The parties adduced 20 documents in evidence. The grievor testified. The employer called Major Shirley MacLean and Lieutenant-Colonel Sean Blundell as witnesses. Between July 2007 and July 2010, Major MacLean was the Health Clinic manager at the Canadian Forces Base (CFB) in Petawawa, Ontario. The grievor reported to a team leader and a manager who reported to Major MacLean. Beginning in 2009 until April 2010, Lieutenant-Colonel Blundell was the commanding officer for 2 Field Ambulance, which gives medical services and support to the 5000 soldiers of CFB Petawawa. Major MacLean reported to Lieutenant-Colonel Blundell.

5 The grievor attempted more than once to obtain education leave for the academic year of 2009-2010. Part of the evidence adduced at the hearing is related to the attempt that preceded the February 2010 request which is the subject of this grievance. I will also review that evidence since it helps in understanding the context of this grievance.

6 From 2006 to 2011, the grievor worked for the CFB Petawawa Health Clinic as a case manager. At that time, he held a Bachelor of Nursing degree. As a case manager, the grievor was responsible for establishing an ongoing relationship with members of the Forces who were injured or presented serious medical problems and helping them to effectively navigate the Forces’ and civilian health care systems to access benefits in order to achieve optimal health and well-being. The function of a case manager is to assist affected members of the Forces to return to work or to facilitate their transfer either to the civilian health care sector or to the Department of Veterans Affairs.

7 In fall 2010, the grievor graduated from the Nurse Practitioner (NP) program at Queen’s University. He left the public service in April 2011 and is now an NP at the Deep River District Hospital.

8 In the Forces, NPs are members of care delivery units (CDUs). They perform comprehensive health assessments and diagnose diseases or disorders. They manage the care of patients within their scope of practice and monitor the ongoing therapy of patients with chronic stable illnesses by providing pharmacological or counselling interventions. According to the evidence adduced at the hearing, a clear distinction and major differences exist between a nurse working as a case manager and an NP.

9 The witnesses testified that the case managers had a very heavy workload in 2009 and 2010 at CFB Petawawa. That CFB was one of three providing soldiers on rotation for the military operations in Afghanistan. That implied more soldiers needing interventions by case managers, which were an operational priority. Furthermore, at that time, there were vacant case manager positions. In March 2009, there were three case manager positions, and the employer was filling a fourth. There was also a team leader position.

10 On July 20, 2009, the grievor submitted to Major MacLean a request for education leave for the period of September 2009 to September 2010. He then wrote that he was accepted in the NP program at Queen’s University and that he needed an answer to his request by August 5, 2009. On July 30, 2009, Major MacLean replied to the grievor that the NP training would not enhance his role as a case manager and that NPs were not a requirement for the functioning of CDUs. She added that his absence on leave would aggravate the shortage of case managers. At that time, only two case manager positions were staffed. In summer 2009, options other than education leave were explored to accommodate the grievor, but the employer refused all of them, mostly on the basis of operational requirements.

11 On September 1, 2009, the grievor submitted three grievances about the employer’s decision (a) to deny him education leave, (b) to deny him leave without pay, and (c) to deny him part-time work. On September 18, 2009, Lieutenant‑Colonel Blundell rejected the education leave grievance and stated that he would not recommend to higher authorities that they grant the grievor education leave because it would not benefit the employer. However, Lieutenant-Colonel Blundell approved leave without pay for personal needs for the grievor commencing on November 16, 2009 to allow him to complete his education program. Lieutenant-Colonel Blundell wrote in the grievance reply and testified at the hearing that the employer had just completed a selection process to hire two new case managers. He was hopeful at the time of the grievance reply that those two new employees would help the workload situation in case management. On that basis, he allowed the grievor’s request for leave without pay and offered him part-time work for the few weeks before the leave without pay began. Before it began, the grievor used vacation leave to attend his education program, which started in September 2009.

12 On February 15, 2010, the grievor presented a new request for education leave for the period of November 2009 to September 2010 to undertake (or complete) his NP certificate program at Queen’s University. He then wrote that he had chosen to undertake that program to advance his career with the health care sector, with the hope of becoming an NP with the employer at the end of the program. He also wrote that he believed that his training would benefit the CFB Petawawa medical clinic. He felt that his request could help the employer because it had needs to fill NP positions. The employer’s witnesses testified that filling those positions was not a priority for the employer because of the type of services provided by NPs.

13 On March 17, 2010, Major MacLean replied to the grievor’s request. She wrote that the situation had not changed from his previous request, that his NP training would not enhance his role as a case manager and that NPs were not an essential requirement for the CDU to operate. The request was then sent to the commanding officer, who did not support it. The commanding officer sent his negative recommendation to the employer’s headquarters on April 7, 2010. On June 3, 2010, a colonel commander in the chain of command at the employer’s headquarters wrote that the grievor’s education leave request did not meet the criteria of the collective agreement since the training would not enhance his duties as a case manager. On October 21, 2010, the Chief of Military Personnel refused the education leave request based on “. . . the criteria for approval of such a leave, with due consideration of the needs of the unit, the department and the individual.” For him, the critical requirement for case managers outweighed the need to develop NPs at that time.

14 Neither Major Maclean nor Lieutenant-Colonel Blundell were consulted about or involved in the writing of the employer’s final response to the grievor’s education leave request or the final-level response to this grievance.

III. Summary of the arguments

A. For the grievor

15 The grievor argued that the employer refused his request for education leave on the basis of operational requirements. He referred me to the employer’s final-level grievance reply, in which it clearly stated that the leave was refused on the basis of operational requirements. The employer had the burden of proving that such requirements existed. It did not. In fact, it granted leave without pay to the grievor for the period for which he had asked for education leave. Furthermore, I should draw an adverse inference from the fact that the employer did not call the Chief of Military Personnel as a witness, even though he made the final decision to refuse the grievor’s request for education leave.

16 Major MacLean’s analysis was too narrow. She did not really examine the employer’s needs for NPs. In addition, the employer did not consider article 18 of the collective agreement as a whole. That article is entitled “Career Development” and recognizes that, from time to time, employees need to have an opportunity to participate in career development activities, including university training.

17 The grievor referred me to the following decisions: Tucci v. Attorney General of Canada (Revenue Canada, Customs, Excise and Taxation) (1997), 126 F.T.R. 147, and Morton v. Treasury Board (Agriculture Canada), PSSRB File No. 166-02-14208 (19840409).

B. For the employer

18 According to clause 18.02 of the collective agreement, the employer may approve or deny education leave at its discretion. The burden is on the grievor to prove that the employer exercised that discretion unreasonably, arbitrarily or in bad faith. The grievor failed to meet that burden.

19 The employer acted reasonably. It believed that the grievor did not meet the criteria on which education leave is approved, and it refused to grant his request. The evidence adduced at the hearing proved that point. The employer explained in several documents and through its witnesses that the request was refused because the grievor did not need the NP education program to perform his duties as a case manager. Furthermore, the employer did not have a need for employees to be trained to become NPs since its needs were instead for case managers. That was explained to the grievor following each of his requests for education leave.

20 The employer argued that no adverse inference could be drawn from the fact that the Chief of Military Personnel from its headquarters was not called as a witness. The two witnesses it called were more qualified to explain the situation that prevailed at the time of the request for education leave since they were in the chain of command at CFB Petawawa when the request was submitted by the grievor.

21 The employer referred me to the following decisions: Pronovost v. Treasury Board (Department of Human Resources and Skills Development), 2007 PSLRB 93; Ewen v. Treasury Board (Correctional Service of Canada), 2006 PSLRB 113; and Salois v. Treasury Board (Correctional Service of Canada), 2001 PSSRB 88.

IV. Reasons

22 The employer argued that as the grievor’s education leave request was refused on the basis that it did not meet either of the two criteria outlined in clause 18.02(a) of the collective agreement, it had not violated the collective agreement. The grievor argued that while the employer used operational requirements as basis for denying the leave, no such requirement existed since the employer granted leave without pay to the grievor. In the alternative, he argued that the employer’s analysis was too narrow, that it did not consider the employer’s need for NPs and that it did not take into account the spirit of the Career Development article.

23 Clause 18.02 of the collective agreement sets out two situations or criteria, at least one of which must be met, in order for an employee to be able to benefit from education leave. To meet the first criteria, the training should be needed to fill the employee’s present role more adequately. To meet the second criteria, the training should be in a field that would provide a service which the employer requires or is planning to provide. It is therefore for me to decide whether the grievor has met one of these criteria.

24 It is true that the employer wrote in its final-level reply to the grievance that the leave request was denied due to operational requirements. However, the evidence adduced at the hearing clearly indicates that that was not the basis for the employer’s refusal. Rather, the evidence demonstrates that the employer refused the request because it believed that the request did not meet either of the two criteria of clause 18.02 of the collective agreement. That was stated in Major MacLean’s response of March 17, 2010, and in the Chief of Military Personnel’s response of October 21, 2010. It was this response that was grieved by the grievor. Furthermore, Major MacLean and Lieutenant‑Colonel Blundell’s testimonies clearly support the theory that the grievor’s request was refused because, for the employer, it did not meet either criteria of clause 18.02. Their testimonies were not contradicted and therefore stand. I did not need to hear the Chief of Military Personnel to decide this grievance, and no convincing arguments or authorities were submitted that could lead me to draw a negative inference from the fact that the employer did not call him as a witness.

25 In this case, at issue is the situation as it existed when it was grieved. It is unequivocal that the employer refused, or recommended to the chain of command to refuse, the request for education leave on the basis that it did not meet either criteria of clause 18.02 of the collective agreement. That is what was grieved, not the employer’s final-level response. If confusion existed as to why the employer refused the education leave request, the final-level reply would be helpful in gaining an understanding of the reasons for the refusal, but that is not the case.

26 I find that the employer’s reason for the refusal of the requested leave was its belief that the grievor met neither of the threshold requirements for the granting of leave. I note that the grievor did not contest the employer’s conclusion on this point. While the employer may have turned its mind to other factors such as operational requirements in making its decision, the fact remains that the employer based its decision on the issue of the threshold requirements contained in clause 18.02. Any consideration of other factors was secondary only and had no influence or effect on the reasoning at the heart of the employer’s decision. The grievor’s argument on the issue of operational requirements cannot, in light of my decision, apply. The issue of the reasonableness of the employer’s refusal of leave based on operational requirements can only find application in cases where it was in fact the reason for the refusal of the leave, which is not the case here.

27 Further, the grievor’s argument that the leave was unreasonably denied based on operational requirements can only apply in the event that the grievor has met the threshold requirements for the leave in the first place. If an employee meets what have been referred to previously as the threshold requirements for education leave, the collective agreement states that they “may” be granted the leave. The wording of clause 18.02 is clear in indicating that the granting of leave is discretionary by its use of the word “may”. The employer must exercise that discretion reasonably, but it only need exercise it in the event that the grievor qualifies for education leave, which the grievor in this case does not. The issue of whether or not the employer was correct in its evaluation of operational requirements is therefore irrelevant in this case as the grievor does not qualify for education leave. The employer was therefore not required to exercise its discretion and consider his request under this provision, which could include an evaluation of operational requirements.

28 The grievor referred me to Morton and to Tucci and the employer to Pronovost. Those three decisions are related to operational requirements or to the related burden of proof. Those decisions are not useful in this case since the issue has become irrelevant given my decision.

29 In Ewen and in Salois, the adjudicators stated that, in cases involving leave approved at its discretion, the employer must not exercise that discretion in an arbitrary or discriminatory fashion or in bad faith. In this case, the employer was not required to exercise discretion as the grievor had clearly not met the threshold requirements of clause 18.02. In any event, the employer demonstrated that it had a logical reason for refusing the grievor’s request for education leave. In good faith, the employer believed that the request did not meet either criteria of clause 18.02 of the collective agreement. Consequently, the employer did not violate the collective agreement and applied clause 18.02 correctly.

30 The grievor also argued that Major MacLean’s analysis was too narrow, and that she did not really examine the employer’s needs for NPs. I do not agree with the submission. The employer witnesses testified that they did not have a need to staff NP positions, and their testimony on this point was not contradicted. The grievor also argued that the employer did not consider article 18 of the collective agreement as a whole. Given the clear wording of the threshold requirement for education leave under clause 18.02, this argument is irrelevant because the grievor did not meet that threshold.

31 For all of the above reasons, I make the following order:

V. Order

32 The grievance is denied.

April 5, 2012.

Renaud Paquet,
adjudicator