Program favouring minorities not a breach of collective agreement, says board

Prison guard argued Correctional Services of Canada tuition program that favoured visible minorities was a violation of collective agreeement, wanted same treatment
|employmentlawtoday.com

A prison guard in Kingston, Ont., argued unsuccessfully that a Correctional Services of Canada policy designed to boost the education of visible minorities was a violation of the collective agreement.

Karen Myers is a correctional officer who has been with Correctional Services of Canada since March 6, 1995. On Aug. 6, 2002, she filed a grievance after being told she was not eligible to receive 100 per cent of her salary while on leave studying.

She started a degree in criminology at Carleton University in September 2001. In April 2002 she became aware of a policy that favoured visible minorities and asked to be considered for the same benefits available to minorities to complete the last five credits of her degree.

Correctional Services of Canada’s policy

Two clauses in the collective agreement were brought into question during the hearing:

Clause 32.02:

At the employer’s discretion, an employee on education leave without pay may receive an allowance in lieu of salary of up to 100 per cent. The decision to grant such an allowance is made by the employer, depending on the degree to which the education is deemed to be relevant to organizational requirements.

Clause 37.01:

This clause stated that there shall be no discrimination, interference, restriction, coercion, harassment, intimidation or any disciplinary action exercised or practiced with respect to an employee by reason of age, race, creed, colour, national origin, religious affiliation, sex, sexual orientation, family status, mental or physical disability, membership or activity in the bargaining agent, marital status or a conviction for which a pardon has been granted.

What happened to Myers

On May 1, 2002, Myers was told she would receive an allowance of 50 per cent of her pay and would be reimbursed 100 per cent for tuition and books.

She was told the purpose of the program for visible minorities is to fund only employees who are visible minorities and meet the criteria outlined in the program. Myers is not a visible minority.

She did not accept the offer and pursued her study on a part-time basis while working full-time.

Myers said she recognizes that the granting of an education allowance is discretionary, but argued the exercise of the employer’s discretion cannot be made in a manner that is arbitrary or discriminatory.

Since Correctional Services of Canada has a special and more generous policy for the granting of education allowances to visible minorities, then its refusal to grant her a full education allowance under clause 32.02 of the collective agreement was discriminatory and in violation of clause 37.01.

The board’s decision

The grievance was heard by the Public Service Staff Relations Board.

The board commended Myers for attempting to better herself through continued education, and it strongly encouraged Correctional Services Canada to help her in any manner it deems appropriate.

“The fact remains, however, that the granting of an education allowance is discretionary and that discretion, by the very terms of the collective agreement, is unfettered,” the board said.

It agreed that the exercise of discretion can’t be tainted by considerations that would render it arbitrary or discriminatory. But the board said it could not conclude that favouring visible minorities was discriminatory.

That’s because s. 16 of the

Canadian Human Rights Act

specifically provides that the type of special program undertaken by Correctional Services Canada in this case does not constitute a discriminatory practice.

Section 16 states that:

“It is not a discriminatory practice for a person to adopt or carry out a special program, plan or arrangement designed to prevent disadvantages that are likely to be suffered by, or to eliminate or reduce disadvantages that are suffered by, any group of individuals when those disadvantages would be based on or related to the prohibited grounds of discrimination, by improving opportunities respecting goods, services, facilities, accommodation or employment in relation to that group.”

The board denied Myers’ grievance.

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