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HomeMy WebLinkAbout1987-2410.Cohen.88-08-29EMPLOYfs DELA COURONNE DEL’ONTAPIRIO CDMM,SS,DN DE SETTLEMENT RiGLEMENT DES GRIEFS Before: IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD For the Grievor: OPSEU (Cohen) - and - The Crown in Right of Ontario Grievor (Ministry of Community-and P. Draper P. Klym C. Linton L. Trachuk Counsel Social Services) Employer Vice-Chairman Member Member Cornish & Associates Barristers & Solicitors For the Emdover: W. N. Emerson Employee Relations Officer Human Resources Planning & Program Design Branch Min. of Community 64 Social Services Hearinqs : May 30, 1988 ievor, Anita Cohen, gr The Gr ieves that she has been unjustly denied compassionate leave and requests that she be granted two days' such leave. DECISION Following the death of her father, the Grievor submitted a written request for three days of bereavement leave and three days of compassionate leave for a total of six working days. The reason given by her for the request was "so that I may observe my religious requirements of mourning." The Grievor, who is Jewish, considered It a rel:gious obligation to sit shiva, a period of mourning prescribed by the laws of Judaism. The Grievor lives and works in the Toronto area. The Grievor was granted one day's sick leave (she had initially called in sick due to her emotional distress), three days' bereavement leave and two days' leave of absence without pay. It is submitted for the Grievor that she should have been granted the latter two days as leave with pay on compassionate grounds. The relevant article of the collective agreement reads: Article 55 - Special and Compassionate Leave 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. i-. ; ’ The following articles are also pertinent: Article 49 - Bereavement Leave 49.1 An Employee who would otherwise have been at work shall be allowed up to three (3) days leave-of-absence with pay in the event of the death of his spouse, mother, father, mother- in-law, father-in-law, son, daughter, brother, sister, son-in-jaw, daughter-in-law, sister- in-law, brother-in-law, grandparent, grand- child, ward or guardian. Article 29 - Leave Without Pay 29.1 Leave-of-absence without pay and wfthout accumulation of cre dits may be granted to an employee by his Deputy Minister. It was clearly understood between the Grievor and her immediate supervisor that she would have the number of days of leave she had requested. The Grievor's wish to sit shiva was thus accommodated. The difference between the parties arises because not all of the period necessary for her purpose was paid leave. A period of mourning generally, though not necessarily, includes a religious observance. But the bereavement leave provision negotlated by the parties simply makes available a maximum of three days' paid leave for the performance of the rituals, duties or customs associated with bereavement. Obviously, that leave was not sufficient for the Grievor's purpose and her request for compassionate leave must be regarded as a means of obtaining an extension of bereavement leave. - 3 - Given the intent of the bereavement leave provision, it is not surprising that the Employer resists attempts to extend bereavement leave by recourse to another paid leave provision. That position was endorsed by the Board in Jackson, i45/G4. In the same decision the statement is made that nothing in Article 55 prevents the Employer from denying a request under that article and instead granting unpaid leave under Article 29. In Freeman, B7/5Q, the Board expressed the opinion that an "extension of bereavement leave, as such, is not contemplated by the collective agreement." Finally, in Latulippe, 1000/85, the Board found that compassionate leave "is intended to cover situations not covered elsewhere in the collective agreement." We conclude that the Employer has no obligation to protect an employee against a loss of pay on the occasion of a bereavement beyond the period provided in Article 49. It is argued for the Grievor that the Employer did not properly consider the merits of the Grievor's request and so failed to exercise its discretion reasonably. The Employer ’ s exercise of discretion under Article 55 will not always yield the result that the Board regards as correct in the sense that it Is the one the Board would have reached. In Freeman, sunra, the Board adopted the statement found in Elesie, 24/'1R, to the effect that the Board must show deference to the exercise of managerial discretion and not decide on the correctness of the outcome when the issue, in fact, is one of reasonableness. The 4 Grievor's reason for requesting leave, if it was not extensively discussed with her, was nevertheless known to be accepted by the Employer. In other words, the Employer's discretion was exercised in light of the circumstances revealed by the Grievor's request for compassionate leave. :t may fairly be said that the Grievor was sympathetically treated by bejng granted paid bereavement leave complemented by unpaid leave. In effect, she was released from work so that she might carry out her jntention with regard to her religious obligations. For the reasons given, we find that the grievance must fail and it Is hereby dismissed. Bated at Conseron, Ontarj'o, thf.5 29th day Of August , :R66. P. Draper - Vice-Chairman I dissent. DissenL attached. P _ . Klym - Member C. Linton - -Member I ,. i 2410107 Cohen DISSENT I dissent from the majority decision of my colleagues on the Panel on the ground% that the Employer did not exercise its Article 55 discretion in a reasonable manner. In Kuyntjes, 513/84 the Board lays down the following considerations that must be followed in the exercise of an Employer's discretion: 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 consideration must be rejected. Indeed these same four criteria have been embodied into the January 14, 1986 memo to Regional Management Team from R. Franks, Human Resources Manager, dealing with "Special/Compassionate Leave". In the case before this Panel there appears to have been a rigid adherence to a policy not to extend bereavement leave, rather than a thorough consideration and investigation regarding the genuine compas- sionate needs of the individual employee. Nobody in management even had any discussion with the grievor as to why she, as an individual, required this time off as "compassionate leave" and what her personal situation was regarding this religious observance. In fact the decision to deny her compassionate leave request was made prior to her return to work without even affording her an opportunity to explain her needs. . ..I2 - 2 - This is particularly troublesome since management witnesses testified that they only had a very limited knowledge of what was involved in Shiva. Understandably, Management was concerned not to be perceived as extending bereavement leave and in setting a precedent for future such leaves for Shiva. However, such a concern should not be used by the Employer to adopt an arbitrary adherence to a rigid policy and should not excuse the lack of a satisfactory investigation into the individual employee’s needs. I would find that the employer did not properly exercise its discretion in this case and would grant the grievance on this basis.