HomeMy WebLinkAbout1987-2143.Klonowski.89-02-13EMPLOYESoELA CO”RONNE oE“ONT*RIO
CQMMISSION DE
REGLEMENT
DES GRIEFS
IN THE MATTER OF AN ARBITRATION
under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Between:
Before:
For the Grievor:
For the Employer:
Hearing:
before
THE GRIEVANCE SETTLEMENT BOARD
OPSEU (John Klonowskil
Grievor
and
The Crown in Right of Ontario
(Ministry of Correctional Services)
Employer
D. Wright
Counsel
Gowling & Henderson
Barristers and Solicitors
M. Farson
Counsel
Sanderson, Laing
Barristers and Solicitors
June 17, 1988
Vice-Chairperson
Member
Member
2
The Grievor, John K. Klonovski, grieves that he was vrongfully denied
leave under Article 29.1 of the collective agreement betveen the parties. On
June 3rd, 1997, he had sought time off vithout pay for the #1 shift on June
27th, 1987 to attend an O.P.S.E.U. Regional Divisional meeting. That request
was denied in vriting on June lOth, by his Superintendent at the time at the
Maplehurst Correctional Centre, Mr. Ducheneau, vho said "(1) Article 29.1 is
not applicable to Union Activities, (21 No relief available - cannot authorize
overtime in these instances."
Article 29 of the collective agreement reads in full as follows:
"ARTICLE 29 - LEAVE WITHOUT PAY
29.1 Leave-of-absence without pay and without the accumulation of credits may be granted to an employee by
his Deputy Minister."
At the outset of the hearing, the Union sought as a remedy a declaration
that the employer had not properly exercised its discretion and had acted ,in a
discriminatory manner in denying the leave, and that Article 29.1 does
encompass union activities. Counsel for the Employer then conceded on behalf
of the Bnployer that Article 29.1 does apply to union activities. The
consequent remedy that is nov being sought is a declaration that the denial did
not involve a proper exercise of discretion and vas discriminatory, and that
the leave requested should have been granted.
The facts are largely not in dispute except with respect to the
availability of coverage by casual employees on the date for vhich leave was
requested, the meaning and effect of the vritten denial of leave, and the
content of a discussion between the Grievor and his Superintendent during a
meeting to discuss the leave, held on June 17th, a week after the date of the
Superintendent's written response. We will now turn to those facts.
3
Mr. Klonovski is a Correctional Officer 2 who also holds the position of
union steward for OPSEXJ Local 234. On June 3rd, he was elected to represent
the local at a Regional Divisional meeting to be held on June 27, for which he
requested the leave noted above.
Another Correctional Officer, Mr. Tom Rose, who was also a union steward,
was elected on June 3rd as alternate delegate to the same Divisional meeting,
but it eventually turned out that he vas unable to attend that meeting.
When Mr. Klonovski received the memo denying his request for leave in the
terms we have noted earlier, he sought a meeting with Mr. Ducheneau to see what
could be done. Mr. Klonowski testified that at that meeting on June 17th he
was told that there seemed to be some type of abuse by the union for leave
under Article 29. On querying Mr. Ducheneau further, he was told that Mr.
Ducheneau has received a memo from head office referring to local union
presidents getting time off with pay under unapplicable articles of the
collective agreement.
Mr. Klonowski responded that he wasn't a local president, and vas
requesting time off without pay. He asked Mr. Ducheneau to reconsider his
denial. Mr. Ducheneau refused to do so, saying that the head office of the
union was aware of these problems, and policy changes could be obtained there.
According to Mr. Klonowski, the reasons for the denial were the problem of
union abuse as discussed, and the inapplicability of Article 29.
Mr. Klonowski then called the head office at the union and spoke to Mrs.
Lilian Seeger, the administrative assistant for collective bargaining, about
his problem. She advised him that the union had an understanding with the
4
Employer that if certain circumstances for leave requested by an employee
didn't fall under the requirement of Article 28 of the collective agreement,
the union would ask for time off under Article 29. We would note at this point
that Article 28 contains various provisions for leave with or without pay for
union activities and that none of the circumstances encompassed by Article 28
apply to the instant grievance.
Mr. Klonowski was advised by Mrs. Seeger to grieve the matter, and he did
so. He also spoke to Mr. Brian McMullen, Acting President of Local 234, about
the matter after putting the grievance in, but not before.
We would note that on being refused the leave a second time at the
meeting of June 17th, Mr. Klonowski could have looked into the possibility of a
mutual shift exchange to get the requisite time off to attend the meeting.
Such exchanges are basically arranged betveen the two participating employees
and are approved by the Superintendent or his designate. If such had been
arranged by Mr. Klonowski, it would have involved his exchanging a day off with
another employee, or working a double shift to cover the exchanged shift. Mr.
Klonovski did not consider such an arrangement for various reasons. First,
prior to the meeting with Mr. Ducheneau, he thought that he would be able to
resolve the matter at that meeting. He was also quite clear in his testimony,
however, that he was not prepared to look at a mutual shift exchange in any
event, as he finds working on a day off or on two consecutive shifts, quite
tiring.
Mr. Klonovski also testified that he had received leave under Article 29
in the previous month of May to attend a week-long union course at Barrie, and
5
the present case was the first time he had been denied leave under that
Article.
Mr. Klonovski produced and identified a shift schedule entitled “General
Duty Roster .‘I It covers the period from June 22nd to June 28th, 1987,
including the day for which leave was requested, June 27th; and it indicates
the duty status of some 29 correctional officers. That list includes possibly
four unclassified staff, and some four casual staff, Boulcher, Davis, Welch and
Boven, at the bottom of the list, who can lx called in to work whenever needed.
The general Duty Roster indicates that none of those four were on duty on June
27th, and according to that roster, they were presumably available to replace
the Grievor had his request for leave been granted. We would note, however,
that Mr. Klonovski said on cross-examination that the General Duty Roster vas
only one of four rosters covering the General Duty Group during the period in
question. In addition to that roster, there is an Entry Control Schedule, a
Central Control Schedule, and a Special Needs Unit Schedule. None of these
latter three rosters, or schedules, were produced in evidence at the hearing.
A document was then tendered in evidence respecting Mr. Tom Rose, the
Correctional Officer who was the grievor’s alternate for the June 27th meeting,
but who was unable to attend. It indicates that Mr. Rose was given leave
without pay to attend a union course from August 29th to September 4th, 1987.
That leave was approved under Article 29.1 as educational leave, even though
two staff were on vacation for that period, and two overtime shifts had to be
arranged to cover Mr. Rose’s absence.
The Employer’s evidence came through Mr. Ducheneau, the Superintendent
of the facility at the time in question. He testified that after getting the
Grievor’s request, he tried to fit it into Article 28, but it didn’t fit. He
6
then called the Scheduling Officer, Mr. Manford, and asked for a breakdown of
casual and expected overtime usage for June 27th. Mr. Manford provided a
written summary of the minimum coverage for #l shift, General Duty, on that
day, which was entered into evidence. That summary indicates that there were 6
casual employees potentially available for the shift, and that there were
requests for 6 casuals already made for that time. The summary concluded that
other coverage possibilities included overtime and a mutual shift exchange.
Mr. Ducheneau then had a discussion vith Mr. McMullen, the Acting
President of the local on other matters, at which time he raised the matter of
Mr. Klonowskf's request vith Mr. McMullen, noting that it vas difficult to free
the grievor on that day. McMullen responded that there were alternates that
could go to the meeting if the Grievor could not.
or. Ducheneau subsequently decided to refuse the request for leave, and
did so in writing to the Grievor in the terms already noted. He said his reply
was an attempt to give the grievor some partial understanding of vhat effected
the decision. He noted that the grievor might then have been able to arrange a
mutual shift exchange, with overtime.
On being queried vhy he had said in his response that Qrticle 29.1 is
not applicable to Union Activities, V he said that Article 28 was specifically
for leave vithout pay for union activities. Hovever, he didn't want to imply.
that Article 29 could never be used for that, in view of his own previous'
approval5 under that Article. On being asked by the board herein to clarify
that testimony, he said, in respect of Article 29, that "I didn't mean that it
vould never be granted for union activities."
7
He then noted that he had a practice of either granting or denying such
requests, depending on individual circumstances, institutional need, and cost
factors. In doing so, he would first try to make sure the leave vaa requested
under the appropriate article, and then would try to get some feeling for the
state of the institutions’ resources. He would consider such things as
inconvenience, other options, as equal distribution of leaves as possible, and
other matters.
He noted that June 27th (the day requested) was a Saturday, and that it
vas difficult to get overtime coverage in summer. The schedules are set up so
as to rarely require extra staffing. He said further that there was some
possibility that had McMullen not told him there were alternates, he might have
occurred the overtime in this case. He cormwnted that the General Duty Roster
(Exhibit 3) vas not even a complete picture of the General Duty Group, as there
were five other duty groups where casuals might have been employed.
On cross-examination he MS asked if he had told the Grievor that Article
29 could be used for union activities, and responded that he must have, as part
of the explanation, but he could not actually recall having said that. With
respect to his second reason, that overtime could not be authorized, he noted
that he tried to make the grievor avare of instructions that he had received to
be cautious. He testified that the Grievor had given him the impression he vas
trying.to extend a right for leave under Article 28, and Mr. Ducheneau tried to
show him that he had guidelines and instructions too. He admitted that after
the meeting with the Grievor, he made no further investigation to see if
staffing needs had changed. He also admitted that he had granted leave without
j (.
pay for more than one day on other occasions, even though such leave had
required overtime.
That completes our summary of the relevant evidence. In his submissions
during argument, Counsel for the Union provided uswith three cases of other
panels of the board for reference to the relevant principles, including w,
24/79; Kuvntjes, 513/84; and &&R, 577/86.
In the Kuvnt-fes case, Vice-Chairman Verity thoroughly canvassed the
exercise of a discretionary power such as is found in issue here, and we find
his analysis and statement of principles apposite. Without covering once more
the jurisprudence reviewed at length in that case, we would first adopt the
principle stated by Vice-Chairman Swinton in Re Youns and the Crovn in Riaht of
Ontario (MinistrY of Conununitv and Social Servicesl, 220/79 and reported in
(19791, 24 L.A.C. (2d) 145. In the Young case, Vice-Chairman Svinton noted at
p. 148 that where the employer has a discretionary power, The board’s concern
is the reasonableness of the decision, not its ‘correctness’ in the board’s
view.” Vice-Chairman Verity refers to that principle on p. 15 of the Kwntjes
award, and proceeds further on p. 16 to state a list of considerations that
must be applied, in view of the principle to “ensure that decisions are made
within the confines of certain minimum standards of administrative justice”.
He then lists those considerations as follows:
“1. The decision must be made in good faith and without
discrimination.
2. It must be a genuine exercise of discretionary power, as
opposed to rigid policy adherence.
3. Consideration must be given to the merits of the
individual application under review.
4. All relevant facts must be considered and conversely irrelevant considerations must ix rejected."
i .,.
9
counsel for the Union submitted that on the facts of this case there was
not a proper exercise of discretion; there was instead discrimination against
the Grievor. The response that Article 29.1 was not applicable MS incorrect,
and the Grievor’s testimony that it MS not clarified is to be preferred.
There vas a failure to exercise discretion because Mr. Ducheneau rigidly
applied the rule that Article 29 did not apply, and he did so pursuant to
instruction received. That approach constituted rigid policy adherence with no
exercise of discretion. The General Duty Roster Exhibit 3) shoved that Mr.
Ducheneau thought he had no discretion, and Mr. Manford’s summary (Exhibit 5)
is of questionable weight as more than six casuals are on staff.
Furthermore, in authorizing overtime for other leave applicants, Mr.
Ducheneau has treated them better than the Grievor, thus discriminating against
him. Mr. Ducheneau knew that there were alternates available, but it was not
his role to decide who vent to the meeting. Finally, he failed to exercise his
discretion by looking again at the situation after the June 17th meeting with
the Grievor .
In response, Counsel for the Employer sunmwized all the steps that Mr.
Ducheneau had taken prior to making his decision, and submitted that that in
fact constituted a bona fide exercise of discretion. She noted that the
resulting decision does not have to be “right” in the board’s view, .or the one
the board would have made, but only has to be reasonable. She said that the
facts show that Mr. Ducheneau does not have a blanket, no-discretion rule, as
he had authorized leave for others earlier, including the Grievor who had got a
week off under the same provision a month earlier. She noted that Mr.
Ducheneau didn’t make his assessment of the importance of the meeting and the
possibility of alternatives, but got that from the Union President. In
10
addition, the Grievor was rigid about his request. He was unprepared to look
at alternatives, such as to exchange a day off or work a double shift on a
mutual shift exchange, but he was prepared to have the Employer make someone
else do that. Finally, there is no obligation to decide the issue twice, as
suggested by Counsel for the Union, or there was no suggestion of any new
information on June 17th, the date of the meeting betveen Mr. Ducheneau and Mr.
Klonovski.
Our view of these submissions and the facts of this case, is as follows.
Mr. Ducheneau advised the Grievor in writing that Article 29.1 was not
applicable, and we prefer the Grievor's testimony over that of Mr. Ducheneau,
to the effect that Mr. Ducheneau also said that to the Grievor at the June 17th
meeting. The Grievor's evidence in this respect is direct, and Mr. Ducheneau's
evidence is vague and assumptive. Notwithstanding the confusion in testimony
regarding a policy to tighten up against perceived abuses of Article 28, and
whether that applied to Article 29, we are also satisfied that at the meeting.
in question, the Grievor received the impression that he vas being refused
leave under Article 29 because of that policy.
Do these matters constitute an appropriate exercise of discretionary
power, in view of the considerations noted earlier? Mr. Ducheneau said that he
took a number of steps, and we accept his evidence in the following matters. He
first tried to fit the leave request into Article 28 but it didn't fit. He
then contacted the Scheduling Officer, and received information as a result
that no casuals were available for the day requested. In view of the fact that
the Union only produced one of a number of schedules for June 27th, at the
hearing, and in view of the explicit nature of Mr. Manford's response to Mr.
Ducheneau, we must accept on balance, after an, examination of those documents
11
and relevant testimony, that no casuals were In fact avallable for June 27th.
We also accept that Mr. Ducheneau initiated a discussion of the matter vith the
Union President, and was led to believe that alternates were available, on
which he made a judgement of the importance of the request. We conclude from
all of these steps that he in fact evaluated the request in terms of its
importance and in light of the institution's resources, and he took some care
in doing so. Finally, we do not consider that Mr. Ducheneau had a duty to
repeat this exercise on or after June 17th, as there is no clear indication of
any change in the staffing situation that might require such a reconsideration.
Had such evidence been preferred, we may have come to a different conclusion on
this aspect.
Those steps involve a fairly extensive effort to see if the leave
requested was appropriate or reasonable. But the process nonetheless included
a series of assessments and a final decision which were all made within the
context of a view expressed twice, once in writing, and once orally, that
Article 29.1 did not apply. The objective evidence is clear that that was his
understanding at the time, no matter what he expressed later at the hearing on
this issue. Accordingly, no matter how extensive the investigation was, all of
the assessments Mr. Ducheneau made, and the resulting final decision to deny
leave, were inevitably coloured by that view.
The result is that the decision does not meet a number of considerations
that are required. The incorrect view that Article 29.1 did not apply has the
same effect as a rigid policy adherence, except that in this case the adherence
was to an incorrect interpretation and was wrong. It was accordingly an
irrelevant consideration, and the Grievor did not have the benefit of the
appropriate consideration, which was whether leave should be granted under that
6~ ,.
12
D Article in view of all the relevant facts. We conclude therefore that the
decision did not result from a proper exercise of discretion, and the Union's
case succeeds in that regard.
Was the decision also discriminatory? In view of the granting of leave
on earlier occasions both to the Grievor and others under Article 29, and in
view of Mr. Ducheneau's reasonably thorough investigation of the underlying
situation at the time of Mr. Klonowski's request, we cannot conclude that he
was being treated in a discriminatory fashion. There is no pattern of denying
him leave, nor is there evidence of the-denial in question having been made or
any subjective grounds that might constitute discrimination.
The granting of leave subsequently to Mr. Rose under Article 29.1 gives
us some concern, but we are not prepared to find discrimination on the
comparison of two single instances where all the factors lying behind the
decision to grant the Rose leave are not available to us. We have no evidence,
for example, that Mr. Ducheneau was advised by the union president in the Rose
situation of the availability or otherwise of alternates. In the absence of
such evidence and otherwise of a pattern of denial for the Grievor's requests,
and given the Employer's discretionary powers, the remaining evidence is simply
not sufficient to lead to a conclusion of discrimination.
We therefore declare that the denial of leave to the Grievor did not
involve a proper exercise of discretion, but a flawed one, for the reasons
given.
We have also been asked to declare that the leave in question should have
been granted. However, there is sufficient evidence for us to conclude that we
should not alterthe result, flawed though the process may be.
I’ -
,I:. . . _
13
G
A review of the information respecting schedules, of the advice of the
Scheduling Officer, of Mr. Ducheneau's discussion with the Union President, and
of other arrangements possibly available to the Grievor which he did not
consider for various reasons, lead us to the conclusion that the denial of
leave is not a result we should upset, even given the applicability of Article
29.1. In other words, the discretion was exercised in a way which was
fundamentally flawed, but the resulting decision was not one which, on the
other objective evidence, may be found to be so wrong or unreasonable that it
should be reversed.
We accordingly decline to make an award that the leave request should be
granted, but would note that such is an unusual result floving directly from
the particular facts of this case, notwithstanding the flawed process.
Dated at Ottawa,
this 13th day of February 1989
D. Fraser, Vice-Chairperson
"I dissent" (Dissent attached)
J. Solberg, Member
qqj &Jo&. )
M. Wood, Member
DISSENT
This Board found that the incorrect application of Section
29.1 resulted in an improper exercise of the Ministry's discretion.
In the words of the award "the discretion was exercised in a way which
was fundamentally flawed . . ."
This Board also found that the series of additional
considerations and, in fact, the final decision itself, were all made
within the context of and coloured by the exercise of the discretion.
Surely that constitutes a breach of the collective
agreement such that the grievance must succeed. And surely when such
a breach occurs, the grievor and union are entitled to the appropriate
remedy. In my view, to find otherwise merely mocks the very purpose
and integrity of the agreement itself.
Janet Solberg
Member