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Home My WebLink About1986-2004.Chow.88-07-12r Before: For the Grievor: For the Emalover: Hearinq: OPSEU (M, Chow) Grievor -and- The Crown in Right of Ontario '(Ministry of Labour) Employer J. Forbes-Roberts Vice-Chairman J. McManus Member * P. camp Member M. Ruby Counsel Gowling and Henderson Barristers and Solicitors C.A. Edwards Counsel Legal Services Branch .~ Ministry of, Labour July 15, 1987 .._----.I,-.,/C.._.-_,_.----- Y._. .-.l-tl-.----.----.~-~-~ . -----_-” ..-..- ~..^.; _-...- -_l_l”--_-_--._ -c.- _..-_..-._c”__.~---------. 1 DECISION A grievance was filed in the instant matter on December 7. ~. 1966. .The grievor, Ms. Mary~Chow. claims improper denial of a request for special or compassionate leave pursuant to Article 55 of the collective agreement. Article 55 states: 55.1 A Deputy Minister or his designee may grant an employee leave-of-absence with pay for not more than three (3) days in a'year upon special or compassionate grounds. 55.2 The granting of leave under this Article shall not be dependent upon or charged against accumulated credits. The facts. leading up to the grievance are as follows. At the relevant time the grievor had occupied for approxi- mately one and one-half (1 l/Z) years the position of legal secretary with the Ontario Human Rights Commission. Early in the morning on November 5, 1986, she discovered that her young daughter was quite ill. No satisfactory arrangements could be made for the child's care.. With her Employer's permission the grievor stayed home on November 5th and 6th to care for her child. Upon her return to work on November 7th, she formally requested that these' two days absence be considered special or compassionate leave. Her reques,t was refused and the time was charged against the grievor's vacation credits. MS. Carolynn Eieange, Manager of Support Services, was the Employer's only witness. It is important to note that she is not the Minister's designee and did not make the decision on the grievor's reguest. Ms. Beange was simply .the conduit between the grievor and the designee, Mr. Norman Mayne, Director of Human Resources Branch. Upon receiving the grievor's written request, Ms. Beangr informed her that there had been a Branch Policy in place since 1984. Only when a child was hospitalized, or even just attended at a hospital emergency room was special or compas- sionate leave to be granted. Others absences due to a child's illness were. to be charged against vacation credits. Ms. Beange did forward the grievor's written request (attached hereto as Appendix "A") to Mr. Mayne, along with, a covering memo (attached as Appendix "B"~)& .,Mr. Mayne returned the materials with a short hand written note stating "NO. Follow Branch Policy. Ensure that everyone is treated the same." The standard of arbitral review in such matters ~was logically canvassed in re: Kuvntles, G.S.B. 513/84. At page 16 Arbitrator Verity states: In cases involving the. exercise of managerial discretion, Boards of Arbitration generally hesi- tate to substitute their view for that of the de- cision make.r, which is a recognition of the fact that Boards have less familiarity with the exigencies of the work place. However, Arbitrators must en- sure that decisions are made within the confines ~0: certain minimum standards of administrative justice. Those administrative law concepts relating to the proper exercise of discretion include the following considerations: _I^___ ,.-.. 1. 2. 3. 4. 3 The decision must be made in good faith and without discrimination. St must be a genuine exercise of discretionary power, as oonosed to risid oolicv adherence. Considerations must be given to the merits of the:~-individual application under review. All relevant'facts 'must be considered and conversely irrelevant considerations must be rejected. (emphasis added) Wee adopt Arbitrator Verity's criteria.. In so adopting, we find the Employer to have potentially breached the second listed criteria, and definitely breached the third. We will.deal. with the third listed criteria first. It is this Board's function'to evaluate the level of consideration given to the grievor's request, and the manner in which the Employer exercised its discretion. We did not however have the benef~it of the evidence of Mr. Mayne, the very individual charged with the exercise of that discretion. We do not know what, if any, consideration was given to the griavor!:a request. It must be remembered that Ms. Beange's was a coverinq memo. It would be an improper assumption on,the part of this Board to unquestioningly accept that Mr. Mayne even read the grievor's request. That leads us to the second listed criteria. We are confronted only with the written words "No. Follow Branch Policy. Ensure that everyone is treated the same." (emphasis added) While the clear desire far consistency is admirable, surely this constitutes "rigid policy~adherence." The grievance is hereby allowed. The Employer is directed ,to credit Ms. Chow's vacation bank with two t.2) days. The Board will remain seized in the. event of difficulty with the implementation of its award. Dated at Toronto this l2th day of July , i988 D.J., Forbes - Roberts, Vice Chairman . ?. Camp, t$gder We adoFt Arbitrator Verity's criteria. . _ A- :i, .I, < i ; briteri;, Ministry Of Lbbour APPENDIX A Memorandum 10: Yan Lazor and Carolyn Beenge ~gte:Nov.7,1986 7 From: Mary Chow Fik!:. Pe: Compas6iopate Leave : On Wednetjday morning, November’Sth, my daughter suddenly becsmd’+iitc ill. As my husband was W&ending a Confoi-encd, and,my t&ysittar has small childrep of her own and was not able t9'cara for my daughter, I bed no alternative but to stay a$’ home with’her myself, As'si-+wao still not well enpugh tb’attend school or go’to our babysitter on Thursday, Uqv~?be~‘P~h, I +$ai,n stayed home $tf, her. Du* to $3 unfortunate circumstaAe6, I am tharufore requesting far your approval for two days compassionate leave for November 5°F and, 9th due to an illness in the‘family. . (‘7 . . *. ., (-1 APPENDIX B r 3 jld: Norm Mayne Dale: December 3, 19% Director Human Resources Branch From: Carolynn Baanet! Manager, Support Servtces Ontario Human Rights CO~l3sion’ Rtl: Compassionate Luave - Mary Choir File: Attached Is a request Prom Mary Chow for two days’ coinpassionate leave (November 5th and 6th) due to an illness in the family.. I advised Mary.that vacstion credits ware to be used for family illness as per guidelines in Personnel’s Attendance Seminar held in the fall of 1984. (See attached excerpt from a Regional Clerk’s meeting held after this seminar). Mary did not attend this seminar, nor was she at the Regional Clerk’s meeting; but this is the policy which has. been In effect in the brBOCh, since the seminar. Mary has since been advised by the union that simliar approvalshave been granted under Article 54.1 Special and Compassionate Leave which states: A Deputy Hinister or his designee may grant an empioyee leave-of-absenie with pay for not more than 3 days in a year upon ~speclal or compassionate .a gi-ounds . Yhile this may be the case in other parts of ihe Ministry, we have only used this article for family illness on two occasions in our Branch. On both occa:;iOns the employees* children were hospitalized. ‘ 1 Please advise. cc: G. A. Brown Mary Chow p*r:cy - EbqJJ’C