Wednesday, July 17, 2024
AMAPCEO has once again successfully challenged the Employer’s denial of another telework Alternative Working Arrangement (AWA) request.
This decision forms part of a promising trend in litigation requiring managers to consider the individual merits of and working conditions surrounding each AWA request, and to provide evidence of genuine impact on operational viability and team cohesion.
In this case, an Arbitrator at the Grievance Settlement Board found that the Employer did not consider the AMAPCEO member’s request in good faith, and that the denial was rooted in a blanket application of the directions in the Secretary of Cabinet (SOC)’s 2022 memos.
The Arbitrator noted that the manager knew the member could perform their role effectively while working remotely, and further found that the Employer did not have evidence to support their stated concerns of there being an impact on team building. The Arbitrator also noted that the Employer’s denial appeared to be a template response.
Significance: Evidence of impact required; timing important
This decision reaffirms the decision made in a previous case that a manager’s discretion cannot be constrained by a blanket rule or direction.
It also establishes that arbitrators will now look for actual evidence to support the justification given for a denial.
“The Arbitrator’s decision in this case is significant,” said President Dave Bulmer. “It means that managers can’t just provide a blanket denial with a canned response about “teamwork” or “collaboration”—they need to consider requests in good faith and be able to prove there is a real concern.”
Likewise, the delay in this instance between when the member made their request and when the Employer provided their template denial after consulting with Human Resources, was also deemed relevant, showing that an arbitrator will consider the timing of the denial when determining its validity.
Going forward: Individual work conditions must be considered
Ultimately, the decision to grant telework (remote) arrangements and the number of days allowed still rests with the manager.
However, this decision strengthens AMAPCEO’s argument that these decisions must include an examination of the individual work conditions. Template denial language with no consideration of the work environment and no supporting evidence could amount to a bad faith denial going forward.
AMAPCEO will continue to fight for our members’ rights under Article 47 of the OPS Collective Agreement, and to keep members informed as these cases progress. We encourage you to keep an eye on your inbox and on the AMAPCEO website.
If you have any questions about this decision or your own AWA request, please contact a Workplace Representative.