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HomeMy WebLinkAboutCaron 13-09-25 (unofficial translation) 1 IN THE MATTER OF ARBITRATION UNDER THE COLLEGE COLLECTIVE BARGAINING ACT BETWEEN: The Union, THE ONTARIO PUBLIC SERVICE EMPLOYEES UNION (OPSEU), LOCAL 672 - AND - The Employer BOREAL COLLEGE Grievance 2012-0672- 0010 In the name of Nicole Caron With regard to Personal Leave With Pay Kathleen G. O'Neil, Sole Arbitrator Representing the Union: Raphaelle Laframbroise-Carignan, Attorney Nicole Caron, Grievor Johanne Rheaume, OPSEU Steward Representing the Employer: George Vuicic, Attorney Nancy Raymond, Employment Services Director, Boreal College Rachelle Perreault-Leveille, Human Resources Director Hearing held in Sudbury, Ontario, on May 15, 2013 2 Arbitration Award The award adresses the grievance filed by the Grievor Nicole Caron challenging the decision of the College for not having granted her a longer Personal Leave With Pay at the time of the cancer diagnosis of her mother. The Employer believes that it has not violated the Collective Agreement, having acted in a reasonable manner in granting a Personal Leave, but Without Pay after the first three days, under a policy of the College adopted for this purpose. The facts The parties filed a Joint Exhibit of Relevant Facts from which the following facts are extracted: 1. The Grievor, Nicole Caron, is a member of the Support Staff of Boreal College, and works as an Employment Services Consultant. 2. The immediate supervisor of the Grievor is Ms. Nancy Raymond, Employment Services Director in Sudbury. 3. On Monday, August 20, 2012, the Grievor asked for a Personal Leave With Pay for the day of August 21, 2012, under Article 12.2 of the Support Staff Collective Agreement, in order to accompany her mother to the Cancer Treatment Centre and to the hospital for a biopsy. Ms. Raymond was absent on that day and the Grievor made her request to Ms. France Belanger-Houle, Employment Services Director of the College. After confirmation with Human Resources Department of the College, Ms. Belanger- Houle granted the Personal Leave to the Grievor. The Grievor was effectively paid for her Personal Leave on the day of August 21, 2012. 4. The Grievor returned to work after her Personal Leave to a full normal working day on August 22, 2012. Towards the end of the day, the Grievor asked once again Ms. Belanger-Houle for another Personal Leave With Pay under Article 12.2 for the next day, August 23, 2012, in order for her to help her mother in her needs, act as a spokesperson for her parents, ensure communication with the medical staff and organize long-term care for her parents. On August 23, 2012, Ms. Belanger-Houle responded to the Grievor indicating that the College approved a maximum of three days of Personal 3 Leave With Pay under Article 12.2, including the day she had already taken. Ms. Belanger-Houle also pointed out that the College would explore other options if the Grievor needed more days off. In response, the Grievor objected to what the College approved as a maximum number of days Personal Leave With Pay, and requested for a Personal Leave With Pay from August 23, 2012 to September 8, 2012. The Human Resources Director at the time, Mr. Donald Malette, answered the email of the Grievor and indicated to her that the College must be fair and equitable to all employees with regard to the admissible criteria and the number of days of Personal Leave With Pay granted in accordance with the Article 12.2. He confirms that the policy of College allows a maximum of three days off under Article 12.2, and that the College would give the Grievor the maximum of days off under Article 12.2. He also presents options for the Grievor to make up the difference between the Grievor’s request of Personal Leave With Pay and Personal Leave Without Pay. 5. On September 7, 2012, the Grievor informed Ms. Raymond that she would file a grievance to protest against the number of days of Personal Leave With Pay approved by the College, and that her doctor had asked her to stop working for a minimum of six weeks. 6. The College kept its decision in Steps 1 and 2 of the grievance procedure. In its response to Step 2, the College mentioned specifically that it recognized that the Grievor’s request to accompany her mother was legitimate. However, the College maintained that a Personal Leave With Pay for three days was reasonable enough to allow the Grievor to make necessary arrangements to deal with the unfortunate situation. The College also noted that the Grievor was on Sick Leave from August 24, 2012 until October 8, 2012 and that she could not be on Sick Leave and at the same time on Personal Leave With Pay under Article 12.2. Beyond this joint statement of facts, Ms. Caron, the Grievor, testified with regard to events surrounding the diagnosis of her mother suffering from cancer in the bones. Also because of advanced age and health problems of her father, and the fact he did not speak fluent English and felt intimidated by medical terms, Ms Caron would have acted as a spokesperson for both him and her mother. The medical staff said Ms. Caron’s mother, who was sedated and incoherent, would have to be followed closely for the next two weeks. Apart from the need to be with her parents at the hospital, she had a lot to do outside of the hospital to organize things at home. So she 4 requested for a Personal Leave With Pay for the following day, on Friday, August 24, which was granted. Ms. Caron said in an email on August 23, 2012 that her request for a Personal Leave until September 8 was due to the fact that on September 8, the radiation treatment of her mother was scheduled to end, allowing an evaluation on whether pain had been reduced enough to give her some mobility. Ms. Belanger-Houle mentioned to Ms Caron that the College only authorized a Personal Leave With Pay for 3 days. Ms. Caron explained at the hearing that she started feeling anxious about it. By authorizing her first few days off under Article 12.2, she thought the College had recognized the situation as exceptional. But then she was afraid that the College would force her to return to work before she could put everything back in order. She communicated with her doctor’s office and asked for an appointment the same evening. Ms. Caron testified that the official refusal of the College generated much anxiety and that the doctor identified it as being "acute stress." She was in fact unable to do her job and take care of her family at the same time. A note from her doctor saying that she needed to be absent from work for medical reasons during the two weeks from August 24 to September 7 served as proof. A revaluation date on September 7 was indicated. She returned to work on October 9. On cross-examination, Ms. Caron agreed she had asked for Personal Leave under Article 12.2 because she thought the article was applicable, rather than the options offered by the Employer. She also acknowledged that she did not tell the Employer that she acted as spokesperson for her mother and that she was the only one available to take care of her parents. She also agreed that the Employer did not ask her to return to work in an answer to her request for Personal Leave With Pay and that her supervisor had spoken of the possibility of changing her working hours if necessary. As for the options offered by the College to replace lost wages beyond the third day of Personal Leave With Pay, including the use of vacations days, Ms. Caron did not see how vacation days could be appropriate with regard to her situation, because it was definitely not the case of taking a vacation. As noted in the response of the College at Step 2 of the grievance procedure, the College has also suggested the possibility of applying for Compassionate Care Benefits offered by Employment Insurance for the period under Article 12.1 Personal Leave Without Pay or modification of her work schedule to accommodate her. 5 Positions of the parties in general The Union's position is that by refusing a Personal Leave With Pay for the period requested, the Employer has violated the Collective Agreement and relinquished its responsibility not to unreasonably deny such request. The Union believes that the Employer adheres to a policy with too much rigidity, and that even if the policy recognizes the Collective Agreement, it sets limits which are non negotiable with regard to application of Article 12.2. The Union recognizes that the Employer has the right to follow a policy for the consistent application of Article 12.2, but argues that the Employer did not have the right to adopt a policy broader than the Collective Agreement. The Union requests an award which would require the Employer to reimburse lost wages and credits used for the absence of the Grievor and that the provisions of the policy which limit Personal Leave With Pay under Article 12.2 to a maximum of three days be removed from the policy. On the other hand, the Employer believes that its decision was entirely reasonable, and that its representatives have duly taken into account all relevant facts, and exercised their discretion, with reason, in line with relevant legal practice. The Employer’s Attorney underlined the fact that Article 12.2 does not give employees automatically the right to Personal Leave With Pay. Rather, it is a benefit granted on special occasions. As a matter of fact, in the present case, the Employer did not refuse Personal Leave With Pay. It was only the duration of the Personal Leave With Pay which was in dispute. The Employer also rejects the merits of the grievance because the Grievor was in fact on Sick Leave for all the days that she now claimed to be on Personal Leave With Pay under Article 12.2. It is the position of the Employer that an employee cannot be on Sick Leave and on Personal Leave at the same time. The Employer’s Attorney came to the conclusion that even if the Grievor had filed a grievance, in this particular case, the Employer’s decision was reasonable. With regard to the remedy requested by the Union’s Attorney to remove sections of the Employer's policy which sets the limits of Personal Leave With Pay to a maximum of three days, the Employer's position is that it would not be appropriate, because we do not see such a request in the grievance filed, and further, it is not an appropriate response to a individual grievance like the one filed by Ms. Caron. 6 The College has developed a policy on Personal Leave With Pay under under Article 12.2, which reads as follows: Policy, Guideline and Procedure SUBJECT: Personal Leave With Pay (Support Staff), Artticle 12.2 The Boreal College intends to ensure uniformity and fairness in all areas with regard to requests and approvals of Personal Leave With Pay (Support Staff) under Article 12.2. GUIDELINE: Staff in all departments of Boreal College is required to follow the procedure described below. GENERAL INFORMATION: The present guideline aims to clarify and standardize the process of application and approval for Personal Leave With Pay with pay under Article 12.2 (Support Staff). Under no circumstances should this guideline be interpreted in order to provide additional benefits to an employee or a group of employees, beyond what is recognized by the provisions of the Collective Agreement. The Collective Agreement has precedence over the present guideline. In general, permissions for all types of absences are granted at the discretion of the College to ensure minimal disruption possible of programs and services. With regard to requests for special leave in extenuating personal circumstances, they will be taken into consideration in the light of all relevant facts, and in accordance with merits of the applications and operational constraints. Personal leave without pay, professional development, maternity and parental leave are not covered by this guideline. PROCEDURE: A special leave of absence granted under extenuating pesonal circumstances aims to accommodate individuals in case of emergent situations of short duration outside of regular working hours. Personal and exceptional circumstances, by nature, are unforseen and beyond the control of the employee. They include sudden and critical situations such as the accident of 7 a member of the immediate family (spouse and children). They do not refer to the lack of care for a child or to the desire to take care of a member of the family, except in extraordinary circumstances. The staff member who wants time off for one of the reasons given by the present guideline should submit beforehand, within a reasonable time, when circumstances permit, a written request to his immediate superior. In cases where it is not possible to submit a request in writing beforehand due to extraordinary circumstances, the employee must obtain verbal permission from his immediate superior and confirm in writing, on his or her return to work, the reason for the leave of absence. The decision to pay the latter will be only granted in the light of the reasons given. If the personal leave is granted, it may be paid up to a maximum of three (3) days, at the discretion and approval of the immediate superior and the Labour Relations Director. The College reserves the right to revise the present guideline at all times in order to modify its content when circumstances dictate, or in case the provisions of the Collective Agreement have been modified. (Expression underlined in the original document) The Collective Agreement The relevant provisions of the Collective Agreement (Support Staff) are as follows: 12.1 Personal Leave Without Pay Leave of absence without pay may be granted by the College for legitimate personal reasons. 12.2 Personal Leave With Pay Recognizing the over-riding responsibility to the students, leave of absence will be scheduled where possible to ensure a minimum of disruption to the educational programs and services of the College. Reasonable notice shall be given to the Supervisor concerned. 8 Leave of absence for personal reasons, religious leave and special leave in extenuating personal circumstances may be granted at the discretion of the College without loss of pay and such requests shall not be unreasonably denied. 18.3.3 Union Grievance The Union shall have the right to file a grievance based on a difference arising directly out of the Agreement concerning the interpretation, application, administration or alleged contravention of this Agreement. However, such grievance shall not include any matter upon which an employee is personally entitled to grieve and the regular grievance procedure for a grievance peculiar to an individual employee shall not be bypassed except where the Union establishes that the employee has not grieved an unreasonable standard that is patently in violation of this Agreement and that adversely affects the rights of persons in the bargaining unit. A Union grievance shall be presented in writing, signed by the Local Union President or his/her designee to the Director of Human Resources or as designated by the College concerned, within thirty (30) days after the circumstances giving rise to the complaint have occurred, or have come to or ought reasonably to have come to the attention of the Union. The grievance shall then be processed in accordance with Step 2 of the grievance procedure. Deliberations and conclusions Recently, I had the opportunity of handling another grievance, the one of Chantal Delisle, also with regard to Article 12.2, between these same parties, in a decision dated May 10, 2013. As I noted, there are several arbitration decisions, related to Article 12.2, referred to by the parties, the list of which is attached as Appendix "A". In this case, we can see that in each case, we must answer two interrelated questions: a. Are the circumstances exceptional or mitigating (in the English version of the Collective Agreement, "extenuating")? b. Did the Employer refuse to approve the Personal Leave With Pay in an unreasonable manner? In the present case, the circumstances of the three days off granted with pay were recognized by the Employer as exceptional. After that, the Employer refused to continue to pay for her Personal Leave, citing up to three days allowed by college policy. Several alternative options have been offered, but nowhere did it 9 say that the Employer was of the opinion that the situation had ceased to be "exceptional", the exact words used in Article 12.2, a typical fact which could lead to a Personal Leave With Pay. So the main question is whether the refusal was done in an unreasonable manner. As I indicated in the decision with regard to Mrs. Delisle’s grievance, I found it useful as a point of departure to evaluate raisonable or not the discretion of the Employer of which certain criteria were mentioned in the cases Re Meadow Park Nursing Home And Service Emplovees International Union. Local 220 , {1983) 9 L.A.C. {3d) 137 {Swan) et Lovalist College and OPSEU {1990) 9 L.A.C. {4th) 166: 1. The decision should be made in good faith and without discrimination. 2. The decision should involve genuine exercice of discretionnary power and not rigid adherence to a policy. 3. Details of the content of the individual request in question should be taken into consideration, and 4. All relevant facts should be taken into consideration and any irrelevant consideration should be rejected. The judgement which has a similar effect is Dufferin-Peel Roman Catholic District School Board and APSSP (Lorna Novosel) decision non classified, dated May 14, 1999 {Kaplan). On examining these criteria, there seems to be no allegation or evidence of bad faith or discrimination, therefore there is no problem with the first criterion. The second criterion is the focus here, given the role of the policy of the College in its decision. It is the Union's position that the discretion has not been exercised in a manner that respects Article 12.2, as interpreted in case law, because it was obvious that any request for Personal Leave With Pay longer than three days would have been refused. By limiting itself to a maximum provided by the policy of the College, the Employer failed to abide by the third and fourth criteria, according to the Union. 10 The Union’s Attorney cited the analysis of the Arbitrator MacDowell in the decision Centennial College of Applied Arts and Technology and Ontario Public Service Employees Union (Sandra McEachran), unlisted award, dated June 13, 2008. In this decision, the Board of Arbitrators concluded that the Employer cannot adhere to a policy which obstructs its discretion under Article 12.2 or superimposes a limit that the parties have not negotiated. This decision does not preclude the possibility of adopting a policy for the consideration of a request under Article 12.2. But it does stress that such a policy must give way to an honest assessment of each case. The decision gives the example of a policy that reflects the accumulation of experience of the Employer to exercise its discretionnary power in a reasonable manner, which can be quite appropriate, if it does not obstruct the examination of different or special circumstances. This decision recognizes that if a policy is rooted in a reasonable practice, there is nothing wrong if the manager makes his decision based on the policy while leaving open the possibility of exceptions. The Arbitrator MacDowell explains that one of reasons why an organization avoids a different treatment of similar cases – which could raise questions of "unreasonable affirmation'', "favoritism " or "discrimination" - is to have guidelines to guide the exercise of discretionnary power. Furthermore, the clarity, simplicity and ease of administration are all legitimate operational factors which an Employer can reasonably take into consideration when approaching the exercise of discretionnary power. I agree with these ideas, and I find them applicable to the grievance before me. The Employer’s Attorney accepts the duty of the Employer to make a reasonable decision and that in fact, this was the case in which a reasonable decision should be made. He notes that the response of the Employer establishes proof that the request of Ms. Caron has been given considerable consideration which has taken into account all facts presented by the Grievor. The response of the Employer gives reasons for refusal, and offered reasonable alternatives. The employer's position is that it is entirely a reflection of the accepted reasons in the case, given that the College has taken into consideration the facts presented, but considers that three days were sufficient for the Grievor to organize things differently. Moreover, he raised other options that the Grievor refused. The Attorney underlined the fact that a reasonable decision includes all possibilities. In addition, no right to a Personal Leave With Pay has been automatically granted by Article 12.2. 11 As was the case Dufferin Peel, cited above, the Employer’s Attorney submits that there is a fundamental difference between the facts of this case and those of the present case, because the policy dealt with in the Dufferin Peel case worked automatically without reference to the merit of reasons presented by an employee. The Employer is of the opinion that the facts before me, that the Employer was willing to pay for three days, are not the same. We also considered the request of a longer leave of absence, but taking into account the facts, three days were adequate according to the College, to make arrangements. This was not a case where the Personal Leave was automatically denied by the employer. The employer believes that the reasons given by the Director of Human Resources of the College at the time, Donald Malette, were sincere, fair and equitable, not arbitrary in nature. Moreover, there is no suggestion that the college did not take into account the relevant facts, or did consider facts which were irrelevant. Overall, says the Employer’s Attorney, the College has met the criteria of a reasonable decision. The Employer also argues that, despite the difficult circumstances in which she found herself, the Grievor should have to explore other options, and that by refusing them categorically, there was a failure on her part. Moreover, the Employer says that once her doctor determined that she was unfit to work, the situation had become incompatible with a Personal Leave under Article 12.2, and the College could only grant Sick Leave to the Grievor. In this regard, the Union claims that the need for Sick Leave occurred after the refusal of Personal Leave With Pay, and the Grievor had no intention of taking Sick Leave and Personal Leave at the same time. I accept that the representatives of the Employer had considered the request of the Grievor and that they did not automatically refuse. Their agreement up to three days is proof. But the evidence persuades me that the policy adopted by the College effectively removes the discretion of managers to allow a Personal Leave With Pay longer than three days and that the representatives of the College did not consider the possibility of paying beyond three days. The policy is clear that the payment is limited to a maximum of three days. Mrs. Belanger-Houle says the maximum of three days in her first response to the request of the Grievor. The more formal response from Mr. Malette was the same. After having recognized the difficult situation of the Grievor, and the goal of being fair to all employees, he quoted the policy, and said "we agree to give you the maximum of days off according to Article 2.2" three days. The problem is not the goal of being fair and consistent in applying Article 12.2; the problem is that it is a unilateral non-negotiated maximum, which is not compatible with the Collective Agreement, which does not provide for such a limit. It is true, as the Employer’s Attorney pointed out, at Step Two of the grievance procedure, the Employer concluded that three days were 12 sufficient under the circumstances to allow the Grievor to make other arrangements with regard to the difficult situation of her family. However, even this response followed a quote that the policy allowed a Personal Leave up to three days. There was nothing in this response which gave me the impression that we had considered, in an exercise of discretion free of the fixed constraint of a maximum of three days, if the request of the Grievor deserved more than three days. Under these circumstances, I found the situation basically very similar to the case of Dufferin-Peel, because, after three days, a Personal Leave With Pay was out of the question, whatever the reasons given by an employee for the request. I agree with the reasoning behind the Dufferin-Peel decision, which concluded that to follow a policy with a non-negotiated limit, rather than consider the reasons for the request beyond these limits, was a violation of the Collective Agreement. In my opinion, the circumstances of this case showed a similar automatic rejection of any request of longer than three days. I accept the opinion of the Union that the purpose of the policy of the College was to limit the discretion of managers' decision to refuse a longer Personal Leave With Pay, and in doing so, the managers have not taken into account all relevant facts, because they did not feel free to do so . Therefore, I find that there is a failure of the Employer to exercise its discretion as required by Article 12.2 and this violates Article 12.2 of the Collective Agreement. Remedy The Union requests two types of redress, compensation and policy change to remove the three-day limit for Personal Leave With Pay under Article 12.2. The employer objected to compensation due the fact that a Personal Leave With Pay under Article 12.2 would have been incompatible with the Sick Leave the Grievor took after her third day of Personal Leave With Pay under Article 12.2. Moreover, we should not use a Personal Leave With Pay under Article 12.2 to make up the difference between Disability Benefits and Regular Pay of the employee, according to the Employer. As for the request to change the policy of the College, the employer points out that it is not a redress mentioned in the grievance, and argues that it is not appropriate in the case of a personal grievance. On the other hand, the Union cites Article 18.3.3 of the Collective Agreement which provides that a Union Grievance should not include any matter upon which an employee is personally entitled to grieve. In this case, the Grievor has clearly raised the fact that the Collective Agreement does not include a limit of three days from the beginning of her conversations with Ms. Belanger-Houle about a longer Personal Leave With Pay. Moreover, the Union’s cites the judgment Re Blouin Drywall Contractors Ltd. and 13 United Brotherhood of Carpenters and Joiners of America, Local 2486 (1975), 8 OR (2d) 103 (CA) where the Ontario Court of Appeal concluded that Arbitrators must interpret a grievance in such a way that the "true grievance"can be examined and that appropriate remedy is granted to settle issues which give rise to the grievance. Therefore, to the extent possible, a grievance should not be won or lost on a technicality, but because of its merits. The Employer agrees that Article 18.3.3 does not prevent the Union to file a grievance against the policy, and even the Blouin Drywall judgement was based on elements requested in the grievance. The goal of any remedy is to return the Grievor, as far as possible, in the situation in which she would have been if Article 12.2 had been respected. On the facts before me, this situation would have been that the Employer should have taken into consideration the request free of any non-negotiated limit. There is no guarantee that a longer Personal Leave With Pay would have been granted, because even without these constraints, the Employer could have exercised its discretion in a reasonable manner and refused a Personal Leave of a certain duration, if the question of the merit of the request was asked. As mentioned by the Employer’s Attorney, a situation may become less critical after a certain period of time. A possible remedy is to return the matter to the Employer with the advice not to impose any unilateral limit, but to exercise its discretion in considering the merit of the request according to the criteria of Article 12.2. However, I find that this is not the appropriate remedy here because of other aspects of the situation. First, I agree that we cannot have two types of leave of absence simultaneously. In my opinion, the fact that the Grievor had been declared unfit for work means she had ceased to be eligible for a Personal Leave With Pay under Article 12.2 after August 24, the date of the note from her doctor declaring that there were medical reasons for not working, and until the end of her Sick Leave. In any case, the refusal of a longer Personal Leave With Pay was done before the start of Sick Leave, so I do not accept the idea that we cannot file this grievance. I have taken into consideration the affirmation of the Union stating that the Employer's refusal to grant Personal Leave With Pay had caused an anxiety so severe that the doctor of the Grievor had her put on Sick Leave. It was obvious that the situation surrounding the serious illness of her mother was extremely stressful, but even if I accept that the refusal of the Employer also caused her anxiety, I would need more specific medical evidence to enable me to determine that the Sick Leave of the Grievor was actually caused by the refusal of the Employer rather than by her own reaction to the perilous state of health of her mother. The only medical document présented does not offer any specific evidence. 14 I also note that the refusal of the Employer has not been done without any consideration for the very difficult situation of the grievor, and it was accompanied by various offers to remedy the financial consequences. I agree, despite the fear of the Grievor to that effect, that the Employer did not request a return to work before she was able to put everything in place. However, after the beginning of the Sick Leave, discussions on the possibilities to accommodate family needs and avoid the financial losses through Employment Insurance Benefits, or schedule changes that otherwise the Grievor would have been granted a Personal Leave With Pay, have not occurred. Even if we presume, for purposes of discussion, a consideration of the request without unilateral constraints would have resulted in a longer Personal Leave With Pay, I think the chain of causation between the breach of the Collective Agreement and any lost wages was broken by another intermediate cause, that is the Grievor was no longer eligible for Personal Leave, With or Without Pay, because she was on Sick Leave. Under these circumstances, I find that I have no evidence that the violation of the Collective Agreement has caused lost wages. So I do not see any need to order a monetary redress or a reimbursement of credits used. As for the question of policy change, it is true that the grievance did not request it specifically. However, the grievance does give way to remedies beyond compensation for loss of wages and reimbursement of credits used, the specific redress requested includes "all other actions suggested or ordered by the arbitrator" as part of the desired solution. The Employer was aware that the Grievor objected to the maximum of three days in the policy during her early exchanges with Ms. Belanger-Houle. It is also very clear that the argument that the Collective Agreement did not stipulate any time limit for granting a Personal Leave With Pay was part of the Union’s presentation at Step 2 of the grievance procedure. In addition, there is nothing in the Collective Agreement that prevents such a remedy in an individual grievance, even if the Employer considers it more appropriate for a union grievance. I also note that the wording of Article 18.3.3 does not encourage the filing of a union grievance under the circumstances of a refusal of an individual grievance, even if the Union can file one aiming at the policy. Moreover, the employer did not specify which of prejudice it could face if there was an order to change the policy removing the unilateral maximum of three days. If the policy is left unchanged, there is no reason to believe that managers do not feel forced in the same manner, the next time an employee asked for a Personal Leave With Pay under Article 12.2 for longer than three days. I find that such a result would not be an effective resolution of the real grievance before me, the purpose of grievance arbitration, according to the judgment Blouin Drywall quoted above. I think it is important to put the parties back in the situation in which they would find themselves if Article 12.2 had been respected, that the policy does not contain a fixed limit of three days. 15 I already stated that there was a failure on the part of the Employer to exercise discretion required by Article 12.2, which is a violation of Article 12.2 of the Collective Agreement. In addition, I think the remedy is to give the Employer time to change the wording of its policy, in such a way that managers are free to consider the merits of each request for a Personal Leave With Pay under Article 12.2 without unilateral constraint fixed in advance. The judgment Centennial clearly explains the parameters of suitable guidelines to be considered in accordance with Article 12.2. I do not know how much time is needed to change such a policy according internal procedures for the Employer, but I foresee a period of 60 days, or a different period on which the parties can agree. This grievance is therefore upheld in part. I remain seized of this matter in case it is necessary to decide anything else arising from this award or its application. September 25, 2013 Kathleen O'Neil, Arbitrator 16 Appendix A Blouin Drvwall Contractors Ltd. and United Brotherhood of Carpenters and Joiners of America, Local 2486 (1975), 8 O.R. (2d) 103 (C.A.) Centennial College of Applied Arts and Technology and Ontario Public Service Employees Union (Colleen Purchase), unlisted award dated February 14, 2007 (Simmons) Centennial College of Applied Arts and Technology and Ontario Public Service Employees Union (Yvonne Glenville), unlisted award, dated May 14, 2007 (Bendel) Centennial College of Applied Arts and Technology and Ontario Public Service Employees Union (Sandra McEachran), unlisted award dated June 13, 2008 (MacDowell) Boreal College and SEFPO, unlisted award dated May 10, 2013 (O'Neil) Dufferin-Peel Roman Catholic District School Board and APSSP (Loma Novosel) unlisted award dated May 14 199 (Kaplan) Confederation College and Ontario Public Service Employees' Union (Thelma Smith ) unlisted award dated August 15, 1982 (O'Shea) Fanshawe College et Ontario Public Service Employees Union (Louise Watt), (2006) 148 L.A.C. (4th) 358 (O'Neil) Loyalist College and Ontario Public Service Employees Union (John McPeak ), unlisted award dated January 2, 1990 (Kruger) Loyalist College and Ontario Public Service Employees Union (Sandra NovroskiJ, unlisted decision dated September 16, 1996 (Howard Brown) Seneca College et Ontario Public Service Employees Union (Paul Lamure ), unlisted decision dated April 7, 2011 (Devlin) Sheridan College of Applied Arts and Technology and Ontario Public Service Employees Union (Marv Gator), unlisted decision dated November 23, 2009 (Bendel) Sheridan College of Applied Arts & Technology et Ontario Public Service Employees Union (#2009-0245-0001), unlisted decision dated December 7, 2009 (Simmons)