HomeMy WebLinkAboutUnion et al 13-09-17IN THE MATTER OF AN ARBITRATION
BETWEEN
ONTARIO AGENCY FOR HEALTH PROTECTION AND PROMOTION
(the “Employer”)
and
ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 545
(the “Union”)
POLICY GRIEVANCE 2012-0545-0023 and INDIVIDUAL GRIEVANCES
2012-0545-0021, 2012-0545-0022, 2012-0545-0031, 2012-0314-0003,
2012-0314-0002, 2012-0314-0005
ALL RELATING TO ARTICLE 15.2 SPECIAL LEAVE
SOLE ARBITRATOR: John Stout
APPEARANCES:
For the Employer:
Craig Rix, Counsel
Elizabeth Winter, Student-at-Law
Bob Blewett, Director of Labour Relations
Nicholas Paul, Operations Director
For the Union:
Ed Holmes, Counsel
Sabrina Parkinson, Local Representative
Robert Keith, Local Representative
Grievors
HEARING HELD ON AUGUST 1, 2013 IN TORONTO, ONTARIO
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AWARD
[1] This matter concerns a Union Policy Grievance and six (6) individual
grievances all relating to the Employer’s refusal to grant special leave under
article 15.2 of the Collective Agreement.
[2] The parties agreed to proceed with the six (6) individual grievances and
have me remain seized of the Policy Grievance. Accordingly, this award shall
address whether the Employer violated the Collective Agreement when they
denied special leave to the six (6) individual Grievors.
[3] The parties agree that I may refer to the Grievors by their initials since
some of the surrounding circumstances involves personal and private health
information.
FACTS
[4] The Union submitted a Book of Documents, which included “will-say”
statements from the individual Grievors as well as a number of supporting
documents. The Employer agreed to the admission of the Book of Documents.
The Employer chose not to cross-examine any of the Grievors on their will-say
statements.
[5] The parties also agreed to the admission of a number of additional
documents which were marked as exhibits.
[6] The only oral evidence I heard was provided by Nicholas Paul,
Operations Director. Mr. Paul testified regarding the background facts as well as
addressing why he denied each of the six (6) individual requests for special
leave.
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Background
[7] The Ontario Agency for Health Protection and Promotion, now known as
Public Health Ontario (the “Employer”) was divested from the Ontario Public
Service (“OPS”) in 2008.
[8] The Employer operates one (1) central and ten (10) regional laboratories.
The laboratories conduct medical/diagnostic tests for physicians, hospitals and
medical officers of health. The Employer also conducts analysis of drinking
water from wells as well as testing for outbreaks (e.g. SARS and the Walkerton
tragedy).
[9] The Collective Agreement applicable to the matter before me is the
parties first collective agreement. The Collective Agreement was bargained with
the outstanding issues being determined at interest arbitration by Arbitrator Gerry
Lee.
[10] The article at the centre of this dispute was freely negotiated and
replaced two (2) separate forms of special and compassionate leave found within
the OPS collective agreement. The article in question reads as follows:
15.2 Leave – Special
Leave of absence with pay may be granted for special or
compassionate purposes.
[11] On August 12, 2011, the parties entered into a Memorandum of
Agreement (the “Memorandum of Agreement”) setting out their agreement on
implementation of the new terms and conditions of the Collective Agreement. In
terms of the special leave provision relevant to this matter (noted above), the
parties agreed to the following:
“It is understood that special leave under Article 15 is reserved for
unforeseen extraordinary circumstances/events.”
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[12] Mr. Paul testified that on September 13, 2011, he sent an email to
Operational Managers in the various laboratories providing guidelines with
respect to special leave. The relevant portions of the email are set out below:
“Pending finalization of a policy on leaves special (Article 15.2), please
be guided by question 65 in the Q&A and the following:
Background
Negotiation of this Article was framed in the context to clearly separate
Leaves Special from the previous Article 49, Special and
Compassionate Leave that we were used to in the OPS Collective
Agreement. Although the titles of the Articles are similar, the intent in
negotiating the new Article is very different. We are now operating
with a significantly different approach to special leave. You will also
note that in the new collective agreement, there is not reference to the
number of days. This was done on purpose because the former CA’s
language … “may grant an employee leave … for up to 3 days” …
conveyed a sense of entitlement.
Guidelines in responding to requests for leave – Special
1. Arbitrators who have ruled on such leave provisions have
underscored that management’s assessment must truly be
discretionary. In other words, managers must review each request
on an individual basis.
2. One of the principles behind this provision is circumstances that
are unforeseen. For example: “my child needs to have a surgical
procedure next week and I need to be there” would not qualify
under this Article as it is a scheduled event. The employee can
use other accumulated leave provisions (not sick days though) and
if all such leaves have been exhausted, then it would be a day
without pay. However, if the employee who needs to leave work to
be with a family member rushed to the hospital as an example may
qualify.
3. Often these requests come from the employee whose spouse,
child or some close member of the immediate family has an
emergency requiring the employee to assist. These have merit to
be considered compared to “my neighbour had an emergency and
I needed to assist them”. Therefore, the closeness of the
relationship is another useful factor to consider in your analysis.
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4. The nature of the event is also a useful criteria to use. E.g.
physical health or emotional mental stress can be considered.
Approval Process
1. Employees should document their request on the existing “Union
Leave of Absence Request / Authorization form. Note this form
uses the term discretionary (box D). Please hand amend it to
Special Leave, Article 15.2. It is important that the employee
complete the “request for leave reason” box as well. If they need
additional space, they can attach their comments on a separate
page attached to the form. It is in the employee’s best interest to
provide as much detail as possible in order for the manager to
make a decision.
2. To ensure consistency in application, final approval will be made
by the manager’s Director. Managers should indicate on the form
if they are recommending or not recommending approval. This
approval process may be modified in the future once we gain more
experience applying this article of the CA.
Anne Maki has volunteered to track requests and decisions on this
Article. Directors should send a copy of the request with their decision
to Anne so that she can populate the spreadsheet. We will share the
spreadsheet with all managers as the decisions are made which will
help everyone become familiar with our application of this Article.
Special leaves are often one of the most contentious aspects of any
collective agreement. As our new CA is very different from our past
CA, we may expect challenges on our decisions. We hope that this
additional information is helpful in applying Article 15.2. We are
interested in your feedback at our weekly management team meetings
HR will be working on a policy to cover special leaves, but we hope
that Q&A’s and these guidelines are helpful until a policy is
developed.”
[13] Mr. Paul confirmed that the process for requesting special leave was as
set out in his September 13, 2011 email (above). Mr. Paul said he would review
the employee’s request form and any supporting documents as well as the
recommendation of the Manager. Mr. Paul indicated he would also discuss the
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request with the Manager, but ultimately he made the final decision for all
requests, including the six (6) individual requests at issue in this matter.
[14] Mr. Paul advised that he had approved sixty (60%) percent of the special
leaves requested under Article 15.2.
[15] Mr. Paul agreed that of all the approved special leaves, none were for
more than one (1) day. However, Mr. Paul explained that there is no limit on the
amount of time that may be granted for any particular special leave.
Individual Circumstances Of The Six (6) Grievors
1. Grievor KS
[16] Since April 3, 2001, grievor KS has been employed at the Orillia
laboratory as a Medical Laboratory Technologist I.
[17] On April 5, 2012, KS received a telephone call from her mother who
resides in Newfoundland. KS was advised that her father was admitted to the
intensive care unit (ICU) on life support and that her presence was needed there
immediately. That same day, KS advised her Manager that she would not be
attending work for an indefinite period of time as her father was very ill and she
was required to travel to Newfoundland.
[18] KS travelled to Newfoundland on the morning of April 6, 2012. KS’s
father passed away on April 12, 2012, while in the hospital.
[19] At the time of his death, KS’s father was the age of 79 and her mother
was the age of 70.
[20] KS has power of attorney for both her parents and therefore had legal
and personal obligations in relation to the hospitalization of her father during his
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last days as well as after he passed away. After KS’s father passed away, she
assisted her mother with making arrangements for the funeral and visitation as
well as administration of her father’s estate.
[21] The funeral for KS’s father was held on April 17, 2012. KS returned to
Orillia on April 25, 2012, and returned to work on April 26, 2012.
[22] KS received bereavement leave for three (3) of the days she was absent
from work. KS requested special leave for the additional days. Instead, she was
required to use vacation credits.
[23] There is evidence that another employee was approved special leave
under article 15.2 for similar circumstances in January 2011. The similar situation
involved an employee whose mother had a heart attack. It was conceded by the
Union that the approval of this other employee was prior to the signing of the
Memorandum of Agreement and clarification that special leave is reserved for
unforeseen, extraordinary circumstances/events.
[24] Mr. Paul indicated that KS was granted special leave for the remainder of
the day when she left work on April 5, 2012. The request for additional special
leave was denied because Mr. Paul indicated he was not convinced that the
circumstances were extraordinary or unforeseen. Mr. Paul indicated that he
accepted that death is traumatic and he had empathy for the grievor. However,
he noted that the Collective Agreement provides three (3) bereavement days for
such circumstances. According to Mr. Paul, it is not unforeseen that older
parents may pass away. Furthermore, Mr. Paul did not find that the exercise of
power of attorney duties were unusual for children. Mr. Paul also did not find it
extraordinary that the Grievor needed to assist in making funeral arrangements.
[25] In cross-examination, Mr. Paul conceded that being put on life support is
out of the norm. Furthermore, Mr. Paul also agreed that such medical
intervention being required is not foreseeable.
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2. Grievor SP
[26] Since September 11, 2000, grievor SP has been employed at the Orillia
laboratory as a Laboratory Attendant II.
[27] SP’s grandmother resided in Toronto until January 1, 2009, at which time
she relocated to a retirement home in Orillia so that she could be closer to SP.
At the time of her relocation, SP’s grandmother was 96 years of age. SP has
been the sole care provider for her grandmother for many years. SP was her
Grandmother’s only living relative as her mother had passed away in 2000.
[28] According to SP, her grandmother was in relatively good health until her
99th year. SP indicated that she was not required to take much time off work in
order to provide her grandmother with additional care. However, her
grandmother’s health began to decline in February 2012.
[29] On Victoria Day, May 21, 2012, at 5:30 a.m., SP received a phone call
from Soldier’s Memorial Hospital advising her that her grandmother had been
admitted and was not doing very well. SP rushed to the hospital to be at her
grandmother’s bedside to provide comfort and ensure her care needs were being
looked after. According to SP, a doctor told her that her grandmother’s heart and
body were failing and that she would not live for more than a couple of weeks.
SP’s grandmother passed away later that day at approximately 4:30 p.m.
[30] SP, being the sole living relative and care provider for her grandmother
was left to arrange and address the funeral preparations, handling the estate and
dealing with all the organizations that had to be notified of her passing as well as
gathering all her personal belongings from her residence.
[31] SP was granted three (3) days bereavement leave as provided under the
Collective Agreement, which she took on May 22, 23 and 24, 2012.
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[32] According to SP, she attended at the funeral home on May 22 at
approximately 1:00 p.m. in order to make the funeral arrangements. She was
advised that the first available date for which the funeral could be held was May
25, 2012. The arrangements were made based on availability and shortly
thereafter, SP contacted her Manager and advised that she would not be
attending work on May 25th due to the funeral. SP requested special leave for
May 25, 2012, the day of her grandmother’s funeral.
[33] According to Mr. Paul, it was his view that, considering the age of SP’s
grandmother, the circumstances involving SP’s grandmother’s death were not
unforeseen. Mr. Paul also pointed out in his cross-examination, that SP could
have taken one of her three (3) bereavement days on May 25, 2012.
3. Grievor MM
[34] Since April 1998, grievor MM has been employed at the Toronto location
as a Medical Technologist II.
[35] On August 16, 2012, MM’s father was admitted to the ICU at the Humber
River Regional Hospital.
[36] MM’s father was 90 years of age at the time of his admission to hospital.
It was initially unclear whether MM’s father would survive the illness. MM’s father
does not speak English and because he was very ill, it was extremely difficult for
him to communicate with health care professionals attending to him.
[37] MM’s mother was 85 years of age at the time of her father’s admission to
hospital. MM’s mother does not speak English. MM’s mother was not coping
well with her father’s illness and also needed MM’s assistance, care and support
during this time including communicating with health care professionals.
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[38] According to MM, it was essential for her to be at the hospital due to the
language barrier in order to insure that proper translation could occur so that her
father was understood and his wishes conveyed to health care professionals.
MM indicated that she was at her father’s bedside in the ICU for approximately
twenty (20) hours per day.
[39] On August 20, 2012, MM’s father was released from ICU. MM’s father
was later discharged from the hospital on August 25, 2012. Although MM’s
father was released from the ICU, he continued to have major problems,
particularly with his kidneys. MM’s father also continued to suffer health
problems and was required to return to the hospital on September 8 and 13,
2012.
[40] MM received a paid sick day for her absence on August 17, 2012. MM
applied for a special leave for the period August 20-24, 2012. The request for
special leave was denied.
[41] According to Mr. Paul, the special leave was denied because in his view,
it was not unforeseen that MM’s father at 90 years old would become ill and/or
hospitalized. He was also of the view that the events were not extraordinary.
4. Grievor IA
[42] Grievor IA is employed at the Toronto location as a Medical Laboratory
Technologist I.
[43] In May 2012, IA’s daughter was 2 years old. IA’s daughter suffers from a
congenital heart disease.
[44] On May 19, 2012, IA’s daughter was admitted to Sick Children’s
Hospital. IA’s daughter was quite ill and had to be placed on oxygen for a period
of approximately two (2) weeks. IA’s daughter remained at Sick Children’s
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Hospital for this entire period. IA remained with her daughter throughout her stay
at the hospital. IA applied for special leave for the period of time she was absent
from work due to attending to her daughter at Sick Children’s Hospital. The
request was denied.
[45] According to Mr. Paul, he fully appreciated the seriousness of the
situation and the difficulty for IA. However, in his view, it was not unforeseen that
medical intervention would be required for a child in suffering from congenital
heart disease. Mr. Paul indicated that IA was provided the time away from work
and was able to utilize vacation credits for income protection. In cross-
examination, Mr. Paul conceded that there is no evidence that IA had previously
requested a leave to attend to her child.
5. Grievor KK
[46] Since September 11, 2000, grievor KK has been employed at the Orillia
laboratory as a Laboratory Attendant II.
[47] KK has a 2-year-old son who normally attends daycare while she is at
work. The daycare provider has a very strict policy that it will not care for or allow
for children to be dropped off that are experiencing symptoms including fever, flu-
like symptoms, lice, chicken pox, etc.
[48] In the early hours of February 23, 2012, KK’s son became ill with flu-like
symptoms including vomiting, high fever and diarrhea.
[49] KK indicates that she does not have relatives that are able to provide
care in emergency situations such as these. Furthermore, KK advises that her
partner was away for work obligations in Oshawa at the time. KK indicates that
since she was prohibited from taking her son to daycare and did not have access
to relatives to assist, she was required to stay home and look after her sick son
on February 23 and 27th, 2012.
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[50] KK applied for special leave for those dates that she was unable to
attend work. The request was denied and she was required to utilize vacation
credits for the time off work.
[51] According to KK, she had been granted special leave for three (3) days
on January 24, 25 and 26, 2011, based on similar circumstances when she was
required to stay home because her son was sick with a fever all week. KK also
indicated that since commencing her employment in 2000 she observed fellow
employees use special leave for sick children.
[52] It was conceded by the Union that these earlier incidents of special leave
being granted in similar circumstances occurred prior to signing the
Memorandum of Agreement and clarification that special leave is reserved for
unforeseen, extraordinary circumstances/events.
[53] According to Mr. Paul, it was not an unforeseen or extraordinary event
that a 2-year-old child could contract an infectious disease. Mr. Paul noted that
children constantly have these issues and it is not unexpected or unforeseen that
a daycare centre will not admit a child suffering from symptoms of an infectious
disease. Mr. Paul indicated that he has children and that it was fairly common for
them to become ill when they were young. He did not see the circumstances of
KK as meeting the criteria for granting special leave.
6. Grievor NZ
[54] Since October 4, 1999, grievor NZ has been employed at the Toronto
location. as a Laboratory Attendant II.
[55] On July 9, 2012, NZ approached his supervisor and verbally requested
vacation.
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[56] On July 13, 2012, NZ submitted a vacation request form seeking
vacation from August 4 through August 30, 2012, for a total of seventeen (17)
days vacation. According to NZ, he explained to his supervisor that it was his
mother’s 70th birthday and the family was gathering in the Philippines to
celebrate.
[57] On July 16, 2012, NZ attended a meeting with his supervisor and was
informed that he only had 8.73 vacation days left. NZ advised his supervisor that
he had already booked his flight and purchased tickets. NZ also advised his
supervisor that in addition to it being his mother’s birthday, she was also quite ill.
[58] NZ asked his supervisor if he could apply for a special leave of absence
with or without pay to allow him to return home to see his mother. NZ indicates
that he was told he could try but it might take a while because of the process.
[59] On the morning of July 19, 2012, NZ approached his supervisor and
asked for the written application form to fill out for special leave. According to
NZ, his supervisor informed him that he did not need to fill out a form. Later on
that same day, NZ approached Human Resources in order to request the
application form. According to NZ, he was advised that it was the manager’s
discretion and unnecessary to apply in writing. Human Resources also indicated
that they would meet with the grievor’s supervisor about the request.
[60] On July 20, 2012, NZ was asked by his supervisor to provide a medical
note from his mother’s doctor in the Philippines to support his request. According
to NZ, his supervisor stated that it was a requirement for the special and
compassionate leave request.
[61] On July 25, 2012, NZ provided his supervisor with a copy of the
requested medical note from his mother’s doctor in the Philippines. The note
read as follows:
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“To Whom it May Concern:
Ms. TZ has recently had surgery for a brain tumour and is recovering.
In addition, she has moderately severe Parkinson’s disease as well as
deteriorating memory. I would not recommend any travel for her at
this time until she is fully recovered.
Thank you.”
[62] According to NZ, he was advised by his supervisor that the medical note
was no longer needed. NZ indicated that his supervisor did not open the
envelope or look at the letter.
[63] On July 26, 2012, NZ met with his supervisor and was advised that his
request was denied for the two (2) week special and compassionate leave.
[64] On August 3, 2012, a meeting took place with NZ’s supervisor and
others, including a Union representative, wherein he was presented with a letter
stating that if he did not return to work on August 30, 2012, he might be
dismissed.
[65] NZ indicates that he was stressed out during his entire vacation in the
Philippines. NZ also indicated that while in the Philippines with his family, a
severe unforeseen storm occurred which was broadcasted on the news
throughout the entire world.
[66] According to NZ, he emailed his supervisor about the conditions and
requested that he be allowed to extend his stay because of the emergency
situation in the Philippines. NZ indicates that a state of calamity had been
declared in the Philippines. NZ also indicated that his in-law’s house had been
flooded and damaged. In addition, his mother’s health and deteriorated and
many people were becoming ill, including his family (his wife, children and
himself).
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[67] According to NZ, his supervisor responded to the email advising that he
had to return by August 20, 2012.
[68] NZ indicates that he departed for Canada on his own without his wife and
children who were ill and remained in the Philippines. NZ also indicates that as a
result of having to return earlier than expected, he had to incur costs associated
with changing his flights.
[69] Mr. Paul conceded during his cross-examination that NZ’s application did
not follow the normal process. Instead, NZ’s request was made through his
supervisor and on a vacation request form. However, Mr. Paul explained that he
considered all the information he was provided, including the medical
information.
[70] There is a note on NZ’s vacation request form indicating that
compassionate leave was denied by Mr. Paul on July 20, 2012. Mr. Paul
conceded in his evidence that the note indicated that the leave was denied on
July 20, 2012. However, Mr. Paul advised that he did review the note from NZ’s
mother’s physician. Mr. Paul pointed out that the physician’s note certainly
indicates a serious condition, but Parkinson’s is an ongoing chronic condition and
not a sudden occurrence. Furthermore, while NZ’s mother had serious surgery,
the note indicates that she was recovering. It was not apparent to Mr. Paul that
the situation involving NZ’s mother was unexpected or unforeseen and therefore
did not qualify for special leave.
[71] Mr. Paul also testified that he checked with NZ’s supervisor with respect
to any emails that may have been exchanged while NZ was in the Philippines.
No such emails could be located.
[72] Mr. Paul indicated that the special leave request was denied because in
his view, the request involved a prearranged vacation and flights that were
booked prior to the approval of the vacation request. He viewed NZ’s request as
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suspicious and an attempt to extend his vacation to August 30, which was the
date that NZ had originally booked his returning flight. Mr. Paul also pointed out
that despite what was described as a calamity, NZ was able to return to work on
August 20, 2012.
POSITIONS OF THE PARTIES
[73] The Union asserts that article 15.2 provides for special or compassionate
leave. It is asserted that these are two (2) different concepts and that in
interpreting these provisions one must be mindful of the purpose, which is to
provide salary protection in a form of paid leave for special or compassionate
circumstances. Therefore, according to the Union, the question to be determine
is whether or not the facts of the request warrants some form of compassion or
special consideration.
[74] The Union argues that this is a stand alone provision providing wage
protection. The Union submits that article 15.2 does not limit access to other
provisions, nor is it restricted by other benefits provided under the Collective
Agreement, including bereavement and sick leave.
[75] The Union relied on a number of awards from the Grievance Settlement
Board (GSB) addressing language similar to the language found in article 15.2.
The Union argues that these awards should be followed because the language in
article 15.2 is essentially the same.
[76] The Union suggests that the Employer was overly restrictive in their view
of what is extraordinary and they applied arbitrary preconceived notions with
respect to the situations involving the Grievors.
[77] The Union provided me with the definitions of a number of words from
the Oxford Dictionary as well as excerpts from Canadian Labour Arbitration, 4th
Edition, Brown and Beatty, paras. 7:3120, 4:1520. In addition, the Union relied
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on the GSB awards Re Elesie and the Crown in Right of Ontario (Ministry of
Health) (1980) 27 L.A.C. (2d) 283 (Swinton); OPSEU (D. Ford) and the Crown in
Right of Ontario, Unreported Award of the GSB dated August 24, 1988 (Wilson);
OPSEU (M. Chow) and the Crown in Right of Ontario (Ministry of Labour),
Unreported Award of the GSB dated July 12, 1988.
[78] The Employer points out that this Collective Agreement is significantly
less detailed that the OPS collective agreement that existed prior to divestment in
December 2008. The Employer also points out that the Memorandum of
Agreement sets out the purpose and intent of the parties with respect to the
language found in Article 15.2. In this regard, the Employer submits that the
parties have agreed, as a condition precedent, that special leave is reserved for
unforeseen, extraordinary circumstances/events.
[79] The Employer points out that while guidelines were issued, they were
only guidelines. The Employer concedes that each case must be examined
individually and that there is no limit to the number of days that may be afforded
to employees who qualify for special leave under article 15.2.
[80] The Employer also argues that it is neither arbitrary nor unfair for the
Employer to consider the other types of leaves available for employees to utilize
instead of being granted special leave under article 15.2.
[81] The Employer submits that the standard of review applicable to the
decisions made by Mr. Paul in applying article 15.2, is whether or not he
exercised management’s authority in a manner that was arbitrary, discriminatory
or in bad faith.
[82] The Employer suggests that each of the six (6) situations that were
referred to me do not represent situations that were either extraordinary or
exceptional and that the decisions made by Mr. Paul were not arbitrary,
discriminatory or made in bad faith.
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[83] The Employer also relied upon a number of definitions found in the
Oxford Dictionary. In addition, the Employer relied on the following authorities:
Simcoe County District School Board and OPSEU, Loc. 330 (Griffith) (re) (2002),
103 L.A.C. (4th) 309 (Davie); National Art Centre and PSAC, Loc. 70291, Re
(1996), 55 L.A.C. (4th) 418 (Roach); Ontario Public Service Employees Union v.
Ontario (Ministry of Community Safety and Correctional Services), (2004) CanLII
55444 (ON GSB); Ontario Public Service Employees Union v. Ontario (Ministry of
Finance), (2003) CanLII 52958 (ON GSB); Centennial College of Applied Arts
and Technology v. Ontario Public Service Employees Union (Purchase
Grievance), [2007] O.L.A.A. No. 75, 88 C.L.A.S. 243 (Simmons); Re North
Cochrane District Family Services and OPSEU, Local 639, [1996] O.L.A.A. No.
386, 43 C.L.A.S. 27 (Devlin); Canada Post Corp. v. Canadian Union of Postal
Workers (Zych Grievance) (2011), C.L.A.D. No. 228, 2011 C.L.B. 22684 (Swan);
Canada Post Corp. v. Canadian Union of Postal Workers (Corbett Grievance),
[2006] C.L.A.D. No. 339, 87 C.L.A.S. 126 (Swan).
DECISION
[84] I begin by noting that all employees involved in the matters before me
were granted a leave of absence from work to attend to their particular
circumstances, save and except NZ who was granted vacation, but no additional
leave.
[85] The issue in this case is not whether the Employer ought to have granted
any leave of absence. Rather the issue is whether the Employer ought to have
granted a paid leave of absence for special or compassionate purposes pursuant
to Article 15.2.
[86] In determining whether the Employer ought to have granted special leave
under article 15.2, the language of the Collective Agreement must be examined
in context and having regard to the circumstances of each individual situation.
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[87] The language in the article 15.2 is language that the parties agreed to
after divestiture. I acknowledge that the language does have some history and
previous GSB awards addressing similar language in the OPS are helpful.
However, such awards should also be examined with caution as they were
decided within the context of a much more complex and detailed collective
agreement. Furthermore, the conclusion in each of the GSB awards is driven by
the particular facts of the individual request for special leave. Moreover, unlike
the OPS collective agreement, the parties to this Collective Agreement have also
agreed that special leave under article 15 is reserved for unforeseen
extraordinary circumstances/events. In this regard, the parties have agreed to
limit the entitlement to special or compassionate situations that are unforeseen
and extraordinary. This is, in my view, a threshold requirement that an employee
is required to meet in order to be entitled to the benefit1.
[88] Both parties provided me with dictionary definitions of a number of terms
utilized by the parties in the Collective Agreement and the Memorandum of
Agreement dated August 12, 2011. In my view, it is helpful to set those
definitions out briefly:
• Unforeseen – not anticipated or predicted
• Extraordinary – very unusual or remarkable, out of the usual course
• Special – for a particular purpose, exceptional in amount or degree
• Compassionate – feeling of sympathy inclining one to be helpful
[89] The one word that was of particular debate is the word “unforeseen”. In
my opinion, the word “unforeseen” on its own is not precise because it always
needs context. By way of example, it is foreseeable that Toronto will see some
snow accumulation over the winter. However, even seasoned meteorologists
1
See Simcoe County District School Board and OPSEU, Local 330 (Griffith), supra at page 324
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cannot easily forecast when the snow will fall and the amount. Moreover, a
blizzard in Toronto is certainly possible but rarely anticipated or predicted. What
this means is that foreseeability must be examined in context because it is a fluid
term.
[90] The parties have specifically limited entitlement to unforeseen
extraordinary circumstances/events. Generally, unforeseen extraordinary
circumstances/events would include circumstances beyond an employee’s
control2. However, such circumstances would not include circumstances that
normally confront all employees in the normal course. In my view, this means
that the intention of the parties is generally not to grant special or compassionate
leave for normal or common ailments affecting members of an employee’s
family3.
[91] I am also of the view that special leave under article 15.2 is not meant as
an indemnity for every requirement for family care, nor is it meant to replace
medical services ordinarily available or assist family members who may not have
income protection that members of this bargaining unit enjoy4.
[92] It is proper, in my opinion, for the Employer to take into consideration
factors such as the total amount of time taken from work, the availability of other
assistance and other forms of leave5. By way of an example, in this Collective
Agreement, the parties have provided for bereavement leave. Bereavement
leave is surely a leave that is deserving of compassion. The provisions in this
Collective Agreement are quite detailed with respect to different leave
entitlements based on the relationship of the employee to the deceased person
and the distance of travel required to attend the funeral. While it is certainly
arguable that the agreement between the parties will not meet many employee’s
2
See Re Elesie and the Crown in Right of Ontario (Ministry of Health), supra at paragraph 15
3
See Re Northern Cochrane District Family Services and OPSEU, Local 639, supra at paragraph 24
4
See Canada Post Corp. v. Canadian Union of Postal Workers (Zych Grievance), supra at paragraph 5
5
See Canada Post Corp. v. Canadian Union of Postal Workers (Corbett Grievance), supra at paragraph 8
21
personal needs, the fact is that the parties have agreed to the benefit that an
employee will be entitled to in normal circumstances involving the death of a
family member. That does not mean that some employees may not need
additional time with or without pay. Furthermore, providing bereavement leave in
and of itself does not disentitle an employee to special leave if their
circumstances involve unforeseen extraordinary circumstances/events.
[93] The language found in article 15.2 does not specifically provide a
standard for the Employer’s decision to be measured. The language provides
that the Employer “may” grant a leave of absence with pay for special or
compassionate purposes. This can be contrasted with provisions where the
parties used more emphatic language (“shall”) with respect to other leaves of
absence.6
[94] In the absence of a reasonableness criteria, the Employer’s exercise of
discretion “must be a genuine exercise of discretion in which the [Employer turns]
its mind to the merits of the individual case. Such an exercise also requires that
all relevant factors be considered and all extraneous factors be rejected.”7 In
other words, the Employer may refuse to grant special leave provided it has not
acted in bad faith or in a manner that is arbitrary or discriminatory.8
[95] The factors that were considered relevant under the OPS agreement are,
in my view consistent with the above noted standard and may be applied to
decisions made by the Employer pursuant to the language in article 15.2 of this
Collective Agreement. Those factors are as follows:
a. The decision must be made in good faith and without discrimination.
6
See for example Union Leave under 15.2, Bereavement Leave under 15.4 and Pregnancy Leave
under 15.6
7
See Kingston General Hospital and O.P.S.E.U. Loc. 444, 66 C.L.A.S. 138 (Davie) as cited in Simcoe
County District School Board and OPSEU, Local 330 (Griffith), supra at page 325
8
See National Arts Centre and P.S.A.C, Local 70291, supra at page 431
22
b. It must be a genuine exercise of discretionary power, as opposed to
a ridged policy adherence.
c. Consideration must be given to the merits of the individual
application under review.
d. All relevant facts must be considered and conversely irrelevant
considerations must be rejected9.
[96] In this situation, the Employer has issued guidelines with respect to
responding to requests for special leave under article 15.2. These guidelines
must conform to the language of the Collective Agreement and must not be
rigidly applied. In other words, the Employer must not act arbitrarily, rather they
must exercise their discretion in good faith without discrimination.
[97] I find that when examined as a whole the guidelines conform to the
Collective Agreement, save and except the specific exclusion of a scheduled
surgical procedure. In my opinion, prearranged or prescheduled events should
not automatically preclude an application for special leave10. Rather, in each
case the individual circumstances must be examined to determine if the situation
involves unforeseen extraordinary circumstances/events and whether
compassionate or special leave should be granted.11
[98] The Employer is also required by the standard to treat like cases alike or
else they will be seen as acting arbitrarily.12 In this case, there is some evidence
that the Employer granted similar claims. However, the Union conceded that
these claims were prior to the Memorandum of Agreement. In such
circumstances, I find that it would be improper to hold such decisions against the
9
See OPSEU (D. Ford) and the Crown in Right of Ontario (Ministry of Transportation and
Communications) August 24, 1988 (GSB) at page 6
10
See for example OPSEU (D. Ford) and The Crown in Right of Ontario (Ministry of Transportation and
Communications), supra.
11
See Re Elesie and the Crown in Right of Ontario (Ministry of Health), supra.
12
See Re Elesie and the Crown in Right of Ontario (Ministry of Health), supra at para. 9.
23
Employer because they were exercising their discretion in good faith and prior to
the parties clarifying the intent of the language.
[99] Applying the above to the specific fact situations before me in this matter,
I find as follows:
GRIEVOR KK
[100] In this situation, KK’s child became ill with flu like symptoms and was not
permitted to be admitted to day care.
[101] I agree with the Employer that the circumstances in this case were not
unforeseen extraordinary circumstances/events.
[102] I am concerned with Mr. Paul’s general statement that all children get
sick. That may well be true, but it is irrelevant to exercising the Employer’s
discretion. What is more relevant is the fact that everyone can become sick with
the symptoms experienced by KK’s child. It is also not uncommon for any day
care to deny admission of children suffering from such afflictions. While the exact
timing may be not be foreseeable, the fact is that most individuals should foresee
that it will happen and plan for such situations.
[103] The evidence is also clear that this was not the first time that KK was
faced with this exact type of situation. In fact, most individuals are faced with
similar situations where they may need to assist an immediate family member
(child, parent, spouse) who is ill with similar symptoms. In my view, I agree with
the Employer that such a situation is not extraordinary or unforeseen.
[104] I acknowledge that the Employer has granted special leaves to others in
similar circumstances including KK. However, as noted earlier these other
situations occurred before the Memorandum of Agreement, which clarified the
24
parties agreement that special leave under Article 15 is reserved for unforeseen,
extraordinary circumstances/events.
[105] Accordingly, I find that the Employer did not violate the Collective
Agreement in denying special leave to this grievor.
GRIEVOR KS
[106] In this situation, KS’s father was admitted to ICU on life support in
Newfoundland. KS’s father ultimately passed away on April 12, 2012.
[107] KS was entitled to three (3) days paid bereavement leave. KS was also
entitled to two (2) days leave without pay as the funeral was in Newfoundland. In
my opinion, the parties have provided for situations where Employees lose a
loved one and the funeral is in a distant location. I find that those entitlements
apply to the time after KS’s father passed away.
[108] However, that does not address the totality of the circumstances facing
KS. The facts are that the KS’s father was admitted to the ICU on life support and
her presence was needed immediately, not only as his daughter but as his power
of attorney.
[109] Mr. Paul conceded that admission to an ICU on life support is not
foreseeable. I agree. In my view, Mr. Paul failed to properly consider all of the
relevant circumstances in this situation.
[110] In this case, KS was facing a situation where her father was on life
support and she was his power of attorney. The possibility of such a situation
occurring is not denied. However, the possibility of such events does not justify a
denial. In my view, the situation facing KS was unusual and extremely difficult to
predict. Having an immediate family member on life support is out of the usual
course and gives rise to feelings of sympathy.
25
[111] Accordingly, I find that the Employer violated the Collective Agreement
by denying KS special leave between April 6 to 12, 2012.
GRIEVOR SP
[112] In this situation, there is no doubt that SP deserves sympathy for the loss
of her grandmother. However, there is nothing unforeseen or extraordinary with
respect to this situation that makes SP’s circumstances any different from any
other employee who may lose a grandparent.
[113] I acknowledge that SP was the sole living relative of her grandmother. As
a result, SP appears to have had obligations beyond those that might be
imposed upon other employees who lose their grandparent. However, it appears
that the real reason why the request for special leave was necessitated was
because the funeral was scheduled for May 25, 2012. I agree with Mr. Paul that
SP could have arranged to have her bereavement leave fall on May 25, 2012 to
attend the funeral without necessitating the need to apply for special leave.
[114] Accordingly, I find that the Employer did not violate the Collective
Agreement in denying the grievor special leave.
GRIEVOR MM
[115] In this situation, MM’s father was admitted to the ICU at Humber River
Regional Hospital. The special leave requested was for the period between
August 20 and August 24, 2012. At that point in time, MM’s father was no longer
in ICU, but was still in the hospital having major problems, especially with his
kidneys.
[116] I am quite concerned about Mr. Paul’s general statement that it should
not be unforeseen or extraordinary that old people may become very ill. Such a
26
generalized comment makes a distinction based on age that is irrelevant and
improper.
[117] It is a fact of life that we all may become sick and we will all ultimately
die. However, when we become sick and when we die is hard to predict. The
death of a young person is generally not anticipated and it is unusual. I do not
dispute that an individual over 90 years old has a higher likelihood of getting sick
and dying. But that is not always the case. Some people live productive lives well
into their 90s. In each situation, the Employer should refrain from generalized
preconceived notions and focus on the merits of the individual application. Thus
the question is whether the admission to ICU of a parent who does not speak
English gives rise to unforeseen extraordinary circumstances warranting special
or compassionate consideration.
[118] In this situation, I find that the admission of MM’s father to the ICU was
unforeseen and the requirement of MM to attend to translate is extraordinary.
However, the claim for special leave is for the period of August 20 – 24, 2012,
when MM’s father was no longer in ICU but still hospitalized. This situation is a
very close call because in my view the admission of an immediate family member
to hospital does not in and of itself require the Employer to grant a special leave.
That being said, in this situation the Employer considered irrelevant facts.
Furthermore, I am satisfied that MM’s attendance was required to translate for
her father. Accordingly, I find that the Employer violated the Collective
Agreement.
GRIEVOR IA
[119] This situation involved IA’s daughter who suffers from a congenital heart
disease being admitted to Sick Children’s Hospital and being placed on oxygen
for a period of approximately two (2) weeks.
[120] I find that the Employer improperly denied special leave to IA.
27
[121] Mr. Paul indicated that in the circumstances of a child with congenital
heart disease, it is not unforeseen or extraordinary that the child might become
ill.
[122] In my respectful opinion, Mr. Paul was misguided and has unintentionally
made an improper distinction with respect to IA’s situation. Mr. Paul improperly
focused on the foreseeability factor. He considered what is in my view an
irrelevant fact (that the grievor’s child suffered from a disability). As a result, Mr.
Paul was in effect holding the parent of a child who suffers from a disability to a
higher standard than that which would be applied to any other parent of a child
without a disability.
[123] It is my view, that the admission into the hospital and being placed on
oxygen of a 2-year-old child is an unforeseen extraordinary event, which may
provide compassionate and special grounds for granting special leave.
[124] Accordingly, I find that the Employer violated the Collective Agreement
by denying the grievor special leave.
GRIEVOR NZ
[125] The situation of NZ is more complicated than the situations faced by the
other grievors.
[126] NZ initially sought vacation from August 4 to 30, 2012 to celebrate his
mother’s birthday and attend a family gathering in the Philippines. NZ did not
indicate any compassionate or special reason for taking that vacation time. NZ
booked his holiday prior to being approved for his vacation. It was only when he
realized that he only had 8.73 vacation days left to be utilized, that he applied for
special leave.
28
[127] I acknowledge that the process followed with respect to the application
by NZ for special leave left much to be desired. However, I accept Mr. Paul’s
evidence that he considered the circumstances and reviewed the note from NZ’s
mother’s physician.
[128] I agree with Mr. Paul that while sympathy should be afforded to NZ with
respect to the ailments afflicting his mother, there was nothing in the medical
evidence to suggest that NZ’s presence was necessary to assist with the
healthcare being provided to his mother. In fact, it appears that NZ’s mother was
in recovery, although suffering from a chronic medical disease.
[129] In terms of the unforeseen storm that occurred while NZ was in the
Philippines on vacation, I note that while NZ claims the storm brought about a
declaration of a state of calamity, he was still able to return to work on time on
August 20, 2012. In this regard, the situation was not so extraordinary that NZ
could not travel.
[130] Accordingly, considering all of the circumstances, I find that the
Employer’s decision with respect to NZ did not violate the Collective Agreement.
CONCLUSION
[131] In conclusion the grievances of KK, SP and NZ are dismissed. The
grievances of KS, MM and IA are allowed. I remain seized with respect to
damages. I also remain seized of the Policy Grievance.
Dated at Toronto, Ontario this 17th day of September, 2013.
John Stout- Arbitrator