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HomeMy WebLinkAbout1986-1000.Latulippe.87-12-16Betveen: Before: File # 1000/86 IN TBE MATTER OF AN ARBITRATION TNE CROYN EMPLOYEES COLLECTIVE ~BARGAINING ACT Before THE GRIEVANCE SETTLEI4BNT BOARD QPSEU (P. Latulippe) and Grievor The Crown in Right of Ontario (Ministry of Correctional Services) Employer .I. W. Samuels Vice Chairman G. ~Nabi M~TDbCX W. A. Lobraico Member For the Grievor: N. A. Luczay Grievance Officer Ontario Public Service Employees Union For the Employer: W. B. Thomas Regional Personnel Administrator Central Region Ministry of Correctional Services Hearing: November 24, 1987 DECISION 2 The grievor, a CO 2 at the Niagara Detention Centre, requested compassionate leak &&I pay to attend the funeral of his wife’s grandmother on August 23,1986. He was given leave without pay, and was permitted to dse lieu time earn$d on the statutory holiday which occurred on September 1 that year. He says that the Ministry violated Ariicle 55 by refusing his leave with pay. Article 55 provides: 55.1 A Deputy Minister or his designee may gmnt an eWoyeg leave-of-absence with pay for not mom manmree(3)daysinayearup~1specialorcompas sitmate grounds. 55.2 The granting of leave underthis~ic~e shall mK)t be -. /’ de&dent upon or charged against accumulated The grievor’s request for compassionate leave was ‘konsidered by Mr.J. Hildebrandt, Superintendent of the Centre. He referred first to the POtiCY of the Mistry on “Special and Compassionate Leave Provisions”, set Out in a memorandum dated March 10; 1981. This document was issue{ by Mr. J. F. Benedict, then Manager of Compensation and Staff Relations, and reads: (Note that references to “Article 54” are to the current Article 55) In light of negotiated changes to Article 54 (special & Ccmpassionate Leave) of the Collective Agreement there is a need to state more clearly the application of its provisions in order to maintain consistency through out the Ministry. Although Article 54 land Section SO(l) of the Rcgulstions under the Public Service Act gives the employer wide discretion j.n deciding wheti-?er to grant spcciol or compassionate leave, this disci-ction inilst be exercised in a reasonable and nondiscriminatory manner. It is extremely difficult, as you can well understar..., to reduce .ho conccpt,of “reasonableness” to a single Formuln or set .of instructions ,\shich con be easily applied in every case. In the final annlysis, management must give full and proper consideration to the particular merits.oF ebch application for special and cwnpassionate leave beFore deciding’to gront or deny the leave. Without limiting the generality of the foregoing, and depending on the .particular circumstar+, the following types of considerations may be taken into account: 1. The needs of the work place (eg. staffing and operational requirements: 2. The importance of the request to the employee and the hardship caused by denial 3. In family nacters, the nature of the relationship and the urgency of the call on the employee’s services by family obligations . 3 4. Whether it was possible or appropriate for other arrangements to be made by the employee. 5. Whether the;denial or granting of the leave would constitute a form of discriminetion, i.e. similar cases should be treated alike Normally, however, the provisions of Article 54 are not applied in the following circumstances: - religious holidays - weather conditions . self development & written”&aminations - an extension of maternity leave - mandatoiy referrals - sickness of family members (subject to above mentioned circumstances; - weddings - car breakdowns - citizenihip applications - extension of bereavement leave - medical appointments - moving - legal matters - attanding graduations For these situations, employees may, of course, request a leave of absence under other arti’les of the Sollective Agreement, i.e. lieu days, vacation, leave without pay, etc., but the provisions of Article 54 or Section 80(l) of the Regulations would normally not be applicable. Managers are obliged to make a serious and diligent enquiry into the facts of each case before rendering a decision to grant a leave oFabsence under Article 54 or Section 80”~ of the Regulations and to consult with Regional Personnel Administrators before such a leave is granted. Copies of the employee’s written request for such leave and the manager’s decision (Leave of Absence Form) are to be retained on the employee’s local personnel file for audit. purposes. The Union argued thar this policy itself violates Article 55, because it imposes rules which deny the employee individual consideration. We do not agree.’ In the second paragraph, Mr. Benedict stresses the need for consideration of the particqlk merits of each ablicition; His lists of factors to.consider qt~ headed ‘Without limiting the generality of the foregoing, and depending, on the particuiar circumstances...” (third paragraph), and “Normally ,.... r...” (fourth paragraph). Thus, he contemplates exceptional 4 circumstances where the suggested guidelines would not apply. To emphasize the point; in the penultimate paragraph, Mr. Benedict says “Managers are obliged to make a serious and diligent enquiry into the facts of each case before rendering a decision”. In our view, Mr. Benedict has captured’the essence of Article 55 precisely. ‘Ifa manager follows this memorandum as we have mad it, there will be no violation of Article 55. Mr. Hildebrandt replied in writing ,to lvlr. Latnlippe on September 5, ., 1986. Hesaid ., . I have carefully reviewed you request far &qassioaate leave of August 22, 1986. The reason outlined io your memo. referred to the death of your wife’s grandmother, for which them is no provision uader the Collective Agreement. be view of the fact that you were granted the time off to attend the funeral by Sgt. Hilton~ and that you would be entitled to a Statutay qoljday for September 1, 1986, wbicb is only a short time later, I feel that’you cao use tbis as time to compensate far the time off gmnted to you on August 23; 1966. Accordingly. I deny your request .fm compassionate leave as I do not find you were caused~ any hardship. \ It is clear from Mr. Hildebrandt’s letter that he denied the request for leave for two reasons---he sets these out in his first two paragraphs. He then says that~“Accordmgly, I deny your request for compassionate leave as I do not find you were caused any hardship”. The primary reason for this lack of hardship is in the second paragraph---that Mr. Latulippe was able to use lieu time from a statutory holiday. But this consideration is prohibited by Article 55.2, which says that “The granting of leave.;....shall not be dependent upon accumulated credits”. Thus, in thii way, the Ministry violated the provisions of Article 55 in denying Mr. Latulippe’s recjuest for leave, and we so declare. Furthermore, Mr. Hildebrandt’s first reason---“no provision under the Collective Agreement”Y--malces no sense. The grievor was applying for compassionate leave under Article 55 because there was no specific provision for leave to attend the funeral of one’s wife’s grandmother. Article 49, which provides for bereavement leave with pay, does not extend to the death 5 .’ of an employee’s wife’s grandmother. Compassionate leave under, Article 5.5 is &tended to co& situations which are not covered elsewhere in the collective agreement. It is no reason to deny a request for compassionate leave on the basis that it is not covered under the collective agreement. All true requests for compassionate leave under Article 55 will deal with situations which are not covered elsewhere in the collective agreement. 1 Thus, in our view, Mr. Hildebrandt’s reasons for denying the grievor’s request for leave were not adequate. .. Bui what is the remedy in this situation? In a similar case,.Gillies 27481, the Board held that the grievor was entitled to a remedy and granted a lieu day. The Board said “In doing this, the board is not to be considered as granting the grievor’s original request for compassionate leave, but rather to be granting him a remedy for the employer’s failure to consider his application” (at page 7). br like vein, in O’Brien, 1157186, the Board said “Since we have found a procedural defect, the most obvious remedy is to reconsider the request. However, we do not believe that this is realistic in this situation” and ordered that the grievor be credited with one statutory holiday credit and one vacation credit (at. page 12). Jn our view, in this case the most appropriateremedy is for the Board to determine whether or not the grievor should have been granted compassionate leave under Article 55. \ This Board has already had occasion to consider this Ministry’s policy concerning requests for compassionate leave with pay under Article 55 to attend funerals. In Jackson, 487183, the grievor was a CO 2 at the Niagara Detention Centm and asked for compassionate leave to attend the funeral of his wife’s grandmother whem’he was to act as pne~of the pallbearers. Mr. ’ Hildebrandt, who was the Superintendent of the facility at that tune, just as he continues to be now, denied the request and this Board upheld his decision. Mr.‘Jackson had been given the time off without pay. A year later, Mr. Jackson was back before this Board grieving the denial of his request for compassionate leave with pay to attend the funeral of his great-uncle where 6. : he was to act as a-pallbearer. In Jackson, 146184, the Board ~upheld . management’s decision to deny leave with pay. Again, the Ministry had granted Mr. Jackson a leave without pay to attend the funeral. The Board said (at page 4): Furthermore, the partics have put tBrir minds to the %ssue bf bereavement leave and had agreed to the provlsious of Article 48 which deal +th this matter. Uhst Hr. Jackoo has.attcupted CO do both in his eariier grievance and in this one is to use Articlk 54 to.amend aid extend the provision$‘of,Article 48. We agree that the Employer is entitled to resist such efforts, and to grant bereavement leave under Article 54 only in extraordinary circumstances. We agree with this statement. , Jn our case, there were no extraordinary circumstances. It was simply a case of the grievor wishing to attend the funeral of his wife’s grandmother. we see no reason for him to have a leave with pay for this purpose. As this Board said in Freeman, 87180, “compassionate leave is granted to an employee when he or she is in a sitnation deserving of sympathetic treatment” (st page 6). The grievor was fairly and sympathetically treated when he was released from work to attend the funeral. Thus, we allow the grievance in part by declaring that the Ministry violated Article 55 by failing to give proper consideration to the grievor’s request for compassionate leave. However, we grant no further remedy 7 : ” : because, ,in our view, the leave would have ‘been denied if proper consideration had been given. Done at London, Ontario, this 16th day of December ,i987.