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HomeMy WebLinkAboutLangille et al 14-11-03IN THE MATTER OF AN ARBITRATION BETWEEN ONTARIO AGENCY FOR HEALTH PROTECTION AND PROMOTION Operating as PUBLIC HEALTH ONTARIO (the “Employer”) and ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 716 (the “Union”) INDIVIDUAL GRIEVANCES OF ALLISON LANGILLE #2012-0716-0006, DEIRDRE PAYNE #2012-0716-0007, CLAYTON McKIBBON #2013-0716-0001, ANGELA DUPUIS #2013-0716-0002 AND KATHERINE MAYO #2014-0716-0001 ALL RELATING TO ARTICLE 15.2 SPECIAL LEAVE SOLE ARBITRATOR: John Stout APPEARANCES: For the Employer: Roslyn Baichoo - Senior Counsel Elizabeth Pszczolko - Manager Thunder Bay Nicholas Paul - Operations Director Kelly Kimens - Executive Director, Human Resources Services and Programs Catherine Green – Senior Advisor, Labour Relations For the Union: Yuk-Sem Won – Grievance Officer Sharon Naipaul – Grievance Officer Allison Langille Deirdre Payne Clayton McKibbon Angela Dupuis Katherine Mayo HEARING HELD ON SEPTEMBER 12, 2014 IN THUNDER BAY, ONTARIO  2   AWARD INTRODUCTION 1. This matter concerns five (5) individual grievances alleging that the Employer violated article 15.2 of the Collective Agreement by refusing to grant “special leave” to the grievors. All of the grievances arise from events at the Employer’s regional laboratory in Thunder Bay, Ontario. 2. On December 19, 2013 a conference call was held to address procedural issues. During the conference call, I ordered the parties to exchange written briefs prior to the hearing of this matter. The written briefs were to include documents and will-say statements for each person who would testify in these proceedings. 3. At the hearing, the briefs were admitted into evidence upon consent of the parties. The parties were afforded the opportunity to cross-examine any person who filed a will- say statement. Both parties chose not to cross-examine any of the persons who filed will- say statements. The parties also agreed to a number of background facts, which I have included in this award. FACTS a) Background and the Collective Agreement 4. 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. 5. 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).  3   6. The normal workweek for employees at the Thunder Bay regional laboratory is five workdays, usually Monday to Friday or occasionally Tuesday to Saturday. Employees are paid 7.25 hours per day, attending at work between 8:15 am to 4:30 pm or 8:45 am to 5:00 pm. 7. The Collective Agreement applicable to the matter before me is the party’s first collective agreement. The Collective Agreement was bargained, with the outstanding issues being determined at interest arbitration by Arbitrator Gerry Lee. 8. 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. 9. 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 article 15.2 (the special leave provision relevant to this matter), the parties agreed to the following: “It is understood that special leave under Article 15 is reserved for unforeseen extraordinary circumstances/events.” b) The Individual circumstances of the grievors i) Katherine Mayo 10. The Union submitted the following will-say statement with respect to the grievance of Katherine Mayo: • Katherine Mayo has been employed by the agency since August 7, 2008. She was first employed through a temp agency. She continued her employment on a contract basis on April 1, 2009. Katherine was a permanent employee as of May 30, 2011.  4   • Katherine is currently at the OAD 04 level, in the capacity of Data Entry Operator/Clerical. • Katherine was scheduled for 7.25-hour shift on Monday June 30, 2014. She had foreseen attending the workplace for her scheduled shift, and had made plans to enable her to do so. • Sunday, June 29th 2014 Katherine was booked on Air Canada flight 8296 returning to Thunder Bay from Winnipeg MB. • The flight was cancelled due to crosswinds, heavy rains and flooding in Winnipeg. This was an unusual, unforeseen circumstance resulting in the cancellation of the flight. Katherine was not able to foresee this cancellation of the planned trip itinerary. • Katherine inquired into the possibilities of making alternate arrangements at the airport to be able to get into Thunder Bay prior to the next day. There were no other flights available to return to Thunder Bay until 21:35 on June 30th, 2014. • Katherine contacted her manager via email on June 29, 2014 at 10:53 pm when it became apparent that a flight would not be available until the following day. This email included a picture of the cancellation board at the airport showing the status of the flight. • On June 30th, 2014 Katherine called into the office at approximately 8:30 am to speak to her manager, Elizabeth Pszczolko. She informed Ms. Pszczolko that she would not be able to make it into work due to the unforeseen cancellation of the flight. • Katherine was able to get a flight out of Winnipeg and back to Thunder Bay on June 30, 2014 at 21:35. • Katherine reported for work on July 2nd as per the schedule. • Katherine requested special leave as per Article 15.2 of the Collective Agreement on July 2, 2014 on the appropriate form. • Katherine provided a short explanation on a handwritten paper with her application: “To Whom it may concern: I was absent from work Monday June 30, 2014 due to unforeseen circumstances. My Air Canada flight 8296 was cancelled out of Winnipeg, MB to Thunder Bay, ON on Sunday June 29, 2014 due to torrential rains and cross winds. I had to layover in Winnipeg MB until Monday June 30, 2014 @ 9:35 pm while waiting for the next available flight to Thunder Bay arriving back  5   @11:42 pm Monday June 30, 2014. I am requesting a compassionate day for June 30, 2014.” • The request was denied by her manager, Elizabeth Pszczolko on July 8, 2014. There was no formal letter, only a copy of the form with “Denied as per discussion OSR MGT” in the signature box of the manager. • On July 8, 2014 Katherine filled out a form for “Loss of Pay” to cover June 30, 2014. Katherine was deducted 7.25 hours from her normal wages for June 30, 2014. • Katherine filed a grievance on July 9, 2014. • The grievance was filed to arbitration on July 16, 2014.     ii) Angela Dupuis 11. The Union submitted the following will-say statement with respect to the grievance of Angela Dupuis: • She has been employed by the agency, first under the Ontario Public Service (OPS), since November 1, 2000. She remained with the agency after divestment from the OPS. She is a permanent part time Medical Lab Tech 1. • She has no disciplinary record at her place of employment. • She strives to maintain good attendance at work. • This is her first application for a compassionate day. • Both she and her partner are not originally from Thunder Bay. • They do not have any family locally. • They reside approximately 30 kilometers outside of Thunder Bay on Amethyst Harbour. Her drive to town is about a 35 minute highway drive. • Angela will testify that her husband, an emergency room doctor, suffers from an acute disc herniation. • On Tuesday, July 23, 2013, Angela's husband was experiencing a flare up of his disc condition and was unable to drive.  6   • Angela was distraught throughout the day, concerned about her husband's health status, worried about how he was doing at home alone. • Angela assumes the role of primary caregiver for her husband when he experiences a flare up of his condition. • Angela received a phone call from her husband at work around 4:00pm on July 23, 2013 and was informed by him that he had consulted with Dr. Puskas and was told to go in to see Dr. Puskas at the fracture clinic first thing the next morning. • After receiving the phone call from her husband, Angela informed Elizabeth Pszczolko, her manager, that she may not be able to make it in to work in the morning. • Angela told Elizabeth that she might have to call someone else into work as she believed she wouldn't be there (at work) in the morning. Angela was concerned with ensuring that Elizabeth knew about her personal situation as she was worried about leaving her employer short staffed as a co-worker was off on sick leave at that time. • Angela missed work on July 24, 2014 when she drove her husband to attend Dr. Puskas' fracture clinic. They arrived there approximately 08:00 hours. They consulted with Dr. Puskas and were sent to Diagnostic Imaging for an MRI. After the MRI, they returned to the fracture clinic to await the results. They again met with Dr. Puskas to discuss the MRI results and treatment options. They left the hospital around 14:30 hours, arriving home approximately 15:30 hours. Upon arriving home, Angela contacted work to inform them she would be in the next day and that her husband was holding off on surgery. • Angela will testify that her husband was unable to drive on July 24, 2013. • On July 24, 2013, Angela's husband did not need an ambulance as he had no need for a defibrillator or oxygen. • Angela missed only this one day of work due to the flare up of her husband's condition. • Upon returning to the workplace, Angela emailed her manager, Elizabeth Pszczolko, and requested a special or compassionate leave for July 24th, 2013. • Elizabeth responded that she would need to fill out a leave request form and a signed letter outlining the circumstances that would be sent along to the management team that reviews these requests.  7   • Angela inquired by email as to what other options she would have for her leave that day. Elizabeth responded that she could use vacation or overtime or ask for leave without pay. • Angela completed the Union Leave of Absence Request/Authorization form and attached a letter noting she was unable to work on July 24, 2013 due to a medical emergency with her husband. She noted in her letter that she spent most of the day with him at the hospital and that it was imperative that she be with him as he was unable to manage on his own. She also indicated in this letter that if further details were required, they could be provided. • The Union Leave of Absence Request/Authorization form was returned to Angela with "denied as per R. Retallick and N. Paul" written in the space for signature of the manager dated August 2, 2013. • There were no reasons for denial provided on the form. • Angela will testify that she was never contacted to provide any additional information, details or clarification with regard to the circumstances on July 24, 2013 that led to her request for a special or compassionate day. • Angela filed the current grievance on August 6, 2013. iii) Deirdre Dunn (Payne) 12. The Union submitted the following will-say statement with respect to the grievance of Deirdre Payne: • Deirdre has been employed by the agency, first under the Ontario Public Service (OPS), since June, 2000. She was initially hired for a part time contract Tech 1position. • Prior to that, she was employed by the Thunder Bay Regional Hospital in a fulltime position. She left that position for a part time contract at the Public Health Lab where she had worked as a student. • She was interested by the opportunities for mental stimulation and education at the Public Health Lab. • Deirdre remained with the agency following divestment from the OPS.  8   • She worked as an acting Tech 2 for 2 years before moving to a permanent Tech 2 position in November 2011. • Deirdre used no sick days last year. She likes her job and takes pride in her work. • She resides 31 Boundary Drive in Neebing. Her home is located on a rise at the base of a mountain. Her driveway goes up in elevation from the road to her home. Effectively, the elevation at the top of her driveway by her house is higher than the elevation at the road. • Deirdre had been tuning into the weather channel on television throughout the evening on the day before her absence from work. The weather channel was predicting snow accumulations of around 1 0 centimetres. • Deirdre went to bed between 23:00 and 23:30 hours on November 22, 2012. At the time that she went to bed, it was raining. • Deirdre was up approximately 05:00 hours on November 23, 2012. She had planned to get up early knowing before she went to bed that weather forecasters were predicting snow accumulations. • After getting up, she went outside. She noted that there was lots of fresh snow, significantly more that the weather forecasts anticipated amount of 10 centimetres. • Deirdre's driveway is long. She estimates it to be about 500 feet. She notes it is on an incline from the road up toward the house. It is curved in the approximate shape of a question mark. • She attempted to clear her driveway with her bulldozer. She had to connect the battery in the bulldozer as the battery is kept in the house in colder weather. She was able to start her bulldozer. In her attempt to plough the driveway, the bulldozer gouged the wet gravel underneath the snow, leaving ruts. The gravel under the snow was soft and wet. Deirdre attributes this to the rain that was falling before she went to bed. She decided not to finish attempting to clear the driveway because of the damage the bulldozer was causing and her concern that she might end up getting the bulldozer stuck as the driveway has deep ditches on either side. She back-bladed the driveway to return it to a condition that she hoped she might be able to drive on with her vehicle.  9   • Following attempting to move snow with the bulldozer, she returned to the house. • She called work approximately 08:00hrs and left a message with Marko. • Deirdre received a call back from Angela Walker. Deirdre informed Angela that she would call back after the ploughs had been by as it is dangerous to drive on the side road if not ploughed and she could easily get stuck. • Throughout the morning, Deirdre walked down to the road to check to see if the ploughs had been by and she phoned the Municipality and they said they wouldn't be at that sideroad until noon at the earliest. • She then attempted to shovel her mailbox out as the mailman will not deliver the mail if they are unable to pull up to the mailbox. While attempting to shovel out the mailbox, Deirdre felt a twinge in her back. She stopped shoveling at that point. The snow she had been attempting to move was hard packed from the plough going by as the fallen snow was heavy. • Deirdre had stretched her fascia in her back the previous year. During her treatment for that injury, she had been advised by her physiotherapist if she ever felt that type of pain again, she should stop her activity. In following this advice, she ceased shoveling. • Following feeling the twinge in her back, she again returned to the house. • Deirdre attempted to get assistance with her snow removal. She contacted her daughters' boyfriend's family as they have a snow removal company. They were unable to come to her - house immediately. They did attempt to assist with snow removal later in the day after completing their jobs in town. Deirdre does not recall what time but notes that it was after her regular work day would have been over. • Deirdre received a call back from Elizabeth Pszczolko around 13:00 hours. • Deirdre called Elizabeth around 13:30hours after the plough had gone by. Deirdre told her the situation and Elizabeth told her to stay home and that she could make up the time as time for time. • Deirdre was allowed by her manager to make up the time for the day in question. • Deirdre submitted a letter to Elizabeth Pszczolko on December 3, 2012 outlining the reasons why she believed she should be granted a compassionate day for November 23, 2014. • Deirdre received a letter from Rena Retallick dated December 11,2014  10   denying her request for leave under Article 15.2 • Deirdre filed the current grievance on December 14, 2012. • Subsequent to her grievance, Deirdre purchased a snow blower at the suggestion of the last snow plough operator who attended her home. She notes she spent $1799 on a snow blower to ensure she can get out of her driveway. She has also since purchased an SUV with four wheel drive capability. iv) Allison Langille 13. The Union submitted the following will-say statement with respect to the grievance of Allison Langille: • Allison has been employed by the agency, first under the Ontario Public Service (OPS), since September 10, 1997. She remained with the agency after divestment from the OPS. She is a full time Senior Technologist - Medical Lab Tech 2. • Allison lives in the country on McKenzie Road in Murillo, ON, about a 20 minute drive from Thunder Bay out Highway 102. • Her home is located approximately 3 kilometers down McKenzie Road off Highway 102. McKenzie Road is unpaved. • She got up approximately 05:45 hours on November 23, 2012 and her home was without power. She also ascertained that her landline phone was not working. Her husband's alarm clock is battery operated. Allison attempted to call work but her phone line was dead. She used her cell phone to call in to work. • When she looked out her window in the morning after getting up, she noticed that her driveway had huge snowdrifts and her side road had not yet been ploughed. The snow drifts were throughout her driveway. Her driveway is approximately the length of 4 transport trucks. The snow on this date was heavy and wet. In attempting to move the snow with the snow blower, they had to replace shear pins several times. • There had been an overnight snowstorm with snow accumulations surpassing what had been predicted by weather forecasters. It was not yet snowing when Allison went to bed at approximately 22:00 hours. • Allison turned on her battery operated radio shortly after she awoke in the  11   morning. She tuned into 99.9FM. The radio station indicated that the area had received 15 centimetres in excess of the expected snowfall amount of 10 centimetres. She learned from the radio broadcast that rural schools were closed, buses were not running and many area highways were also closed due to poor road conditions. Highways east towards Nipigon was closed and highways west of Sistonen's Corners were closed. Sistonen's Corner is approximately 10 minutes west up the highway from her sideroad. The radio broadcast also noted that the Ontario Provincial Police were advising the public to stay off the roads if at all possible. • Her husband left the house and started snow blowing sometime between 09:00 and 10:00 hours. It took him approximately 4 hours to clear their driveway. • Allison notes that in general, the roads in her area are cleared fairly quickly following a snowfall. She is generally able to make it to work on time following a snowfall. On November 23, 2012, there was an exceptional amount of snow and her side road was not ploughed until later in the afternoon. The plough did not come by until about 14:00 hours. • Allison has made it into work following other snow storms as she was able to make it out of her driveway and down her side road to the highway as the side road had been ploughed. • Allison's husband did not make it to work this date. • Allison wrote a letter to Elizabeth Pszczolko December 3, 2012 with an explanation of why she believed she should be granted a special/compassionate day as per article 15.2 • In her letter, Allison noted that she lives in a rural area. They received a huge snowfall in the early hours of November 23, 2012, 15 centimetres more than what had been predicted for the area. Her home was without power for most of the day on November 23, 2012 and she was also without landline telephone services on that day. She listened to a battery operated radio and found out that rural schools were closed and buses were cancelled due to poor road conditions. She also learned that several highways surrounding her area were closed due to poor road conditions. • Allison received a letter dated December 1 1 , 2 0 1 2 from Rena Retallick denying her request for leave under Article 15.2. • Allison will testify that she was never asked for any additional information or clarification on the information she provided in her letter. • Allison filed the current grievance on December 14, 2012.  12   v) Clayton McKibbon 14. The Union submitted the following will-say statement with respect to the grievance of Clayton McKibbon: • Clayton McKibbon has been employed by the agency for approximately 29 years, being hired in October 1985. He was first employed under the Ontario Public Service (OPS). He remained with the agency after divestment from the OPS. He is a Laboratory Attendant 2. • Clayton is currently President of his local. He was re-elected to this position about 2 years ago. He was always been involved with the union. • Clayton has never been called in for an attendance review. His employee file is clean with no letters or counsel or reprimand. He is not in the Attendance Management Program. • In 2010-2011,Clayton had taken a leave without pay for a few months from his employer for personal issues. This was approved and supported by the employer. • Clayton resides at 378 Leeper Road in Nolalu. His home is approximately 5 kilometers from a main highway. He has to take two (2) gravel roads from his home in order to get to Highway 588. • January 10, 2013, Clayton emailed Rena Retallick and included a copy of a statement from Environment Canada regarding the storm that was forecast to be heading into the region overnight and into the weekend. In his email, he inquired as to the availability of a corporate credit card to charge a hotel room for the night as he had previously been advised by his manager that people needed to arrange for alternate living arrangements in the event of extraordinary weather events in order to report to work. The conversation with his manager occurred when he, Allison Langille and Dierdre Dunn (Payne) had gone in to speak with the manager and plead their case for a snow day in November 2012. • Clayton attempted to drive to work on January 11, 2013. Clayton had checked the school website and confirmed that school buses in his area were cancelled on this date. He also had heard on the radio that day that the school buses were cancelled. • Clayton attempted to drive to work. The road was icy. As he came to the intersection of Leeper Road and Old Silver Mountain Station Road, his vehicle slid into the ditch. There was no damage to his truck  13   however; it did take him approximately 20 minutes to get his truck out of the ditch. The intersection is approximately 0.5 kilometers from his home and about 5 kilometers from the main highway. He decided it was unsafe to attempt to drive to town and instead turned his vehicle around and slowly made his way back to his home. • Upon arriving home, Clayton emailed Elizabeth Pszczolko to inform her that he was unable to get on the highway and would be waiting until later in the day to attempt to drive to work. He received a return email from Elizabeth noting that she was unable to make it up her side road either. • After arriving at work on January 1 1,2013 Clayton emailed Elizabeth Pszczolko indicating that he would be requesting leave under article 15.2. He also submitted a Union Leave of Absence Request/Authorization form with a letter outlining the conditions on the date that precluded him from attending work. • Clayton received his Union Leave of Absence Request/Authorization form back marked denied by Elizabeth Pszczolko with a letter attached from Rena Retallick dated January 18, 2013 indicating that his request for special leave was denied and that he could make up 3 hours work so as not to lose any pay. • January 18, 2013, Clayton emailed Rena Retallick indicating that he was filing a grievance and requesting that it be forwarded on to arbitration. • April 22, 2013, the Employer provided a memo to all Thunder Bay Public Health Ontario Laboratory staff noting that the Employer had decided to close the lab on April 19, 2013 at 13:00 hours due to weather relating to concerns about staff getting home safely. In this instance, all employees were compensated received full pay for their regularly scheduled work hours. c) The Employer’s response to the requests for special leave 15. The Employer submitted the will-say statement of Elizabeth Pszczolko, the Thunder Bay Manager, in response to the Union’s evidence. Ms. Pszczolko was consulted and involved in the decision to deny the individual requests for special leave. The will-say statement of Ms. Pszczolko states as follows: • She is the Manager, Public Health Labs in Thunder Bay, Ontario. • In that capacity, she is aware of the circumstances that have led to the four grievances that have been filed. • She was consulted on each situation and involved in the ultimate decision to deny the various requests made for compassionate leave. • Three of these grievances relate to absences following a snowstorm in Thunder Bay on November 23, 2012 and on January 11, 2013. They are Allison Langille, Clayton McKibbon and Deidre Dunne (Payne). The grievance filed by Angela Dupuis relates to the denial of compassionate leave to accompany her husband to a medical appointment in July 2013. The grievance of Katherine Mayo relates to a denial of compassionate leave for June 29, 2014 when weather forced a cancellation of her flight home from Winnipeg. THE NOVEMBER 22-23, 2012 SNOWSTORM GRIEVANCES (ALLISON LANGILLE AND DEIDRE PAYNE) • There was a snowstorm overnight which changed direction from what had originally been predicted. • It was a significant snowstorm but it was not unusual (in timing or severity) for the Thunder Bay area. • She arrived at work at approx. 11:30 a.m., after her township had cleared the sideroad that leads to the highway. She lives 45 km southwest of the city, near Mr. McKibbon. • In her view, after having considered all the information by the grievors, and discussing it with Nicholas Paul the Employer’s Operations Director and Rena Retallick, Operations Director (A), Regional Public Health Laboratories their circumstances did not warrant compassionate leave. • There was no expectation or requirement that the grievors (or indeed any employee) would be required to be at work if their personal situation made the commute difficult or impossible. • The grievors were all given options by which their absences could be recorded: vacation day, unpaid time off, or an opportunity to make up the hours lost.  15   • Unless a grievor refused any of these options, the grievor lost no pay. THE JANUARY 11, 2013 SNOWSTORM (CLAYTON MCKIBBON) • Like the other two grievors, Mr. McKibbon was denied his request for compassionate leave. In his case, he missed three hours of work and he was advised that he could use it as a vacation day, an unpaid day or he would work to make up the hours. • Like the others, his situation did not demonstrate that it warranted compassionate leave. GENERALLY • Severe snowstorms are the norm in Northwestern Ontario. They occur with great frequency. Typically, the lab remains open once the City of Thunder Bay’s transit remains in operation. • The nature of the operations-public health laboratory- is significant. Despite the weather, the lab continues to function. • The snowstorm in April 2013 was an unusual situation in that the City of Thunder Bay had pulled its buses off the road and it was evident that the majority of employees would be unable to make it home if the lab remained open. Any decision to close the lab is made by management. ANGELA DUPUIS’S HUSBAND’S MEDICAL APPOINTMENT • Ms. Dupuis knew in advance that there was a chance she would be absent from work to attend with her husband at his medical appointment. Ms. Dupuis informed Elizabeth the day before that there was a chance her husband would be able to see a specialist at the hospital and that they wouldn’t know this for sure until the following day. • She advised the Manager of this fact and allowed for scheduling changes, if any, to be made. • The grievor’s husband is a medical doctor and she articulated the reasons for her absence in the form she submitted and in her conversation with her manager the day prior to her absence. There was no need to request any additional information.  16   • This absence did not amount to a situation which would warrant compassionate leave. Among other things, it was not unforeseen, unexpected, sudden or unusual. • The Employer appreciates that the grievor’s husband may have been in distress, but this situation was clearly planned in advance and did not warrant any compassionate time off. KATHERINE MAYO’S DELAYED FLIGHT • The Employer did not take the request for a compassionate day lightly. • The grievor had been on vacation at the time the flight was cancelled. • She provided evidence of the flight cancellation. • Flight delays are not unusual. They may not always be predicted, but they are normal occurrence when flying. • This situation however did not amount to one for which compassionate leave was required. • There was no expectation that she would have had to report that day given her flight status. • She could have used a vacation day or made up the hours lost. The grievor chose to take an unpaid day off. • This situation, while unfortunate did not meet the threshold for a compassionate day off. POSITIONS OF THE PARTIES 16. The Union asserts that article 15.2 provides a leave of absence with pay for “special or compassionate purposes”. In each case, the Union argues that the grievors met the threshold requirement of facing unforeseen and extra-ordinary situations, which were exceptional or deserving of compassion.  17   17. The Union submits that the language in the Collective Agreement requires the Employer to turn their mind to each grievor’s request and properly consider their individual circumstances. The Union argues that the Employer did not properly consider each of the individual requests for special leave. Instead, the Union suggests that the Employer adhered to a strict policy of not granting special leave for weather related situations or medical appointments. 18. The Union also suggests that the Employer did not properly investigate each request for special leave. The Union also argued that the Employer considered irrelevant facts in making their decision to deny special leave. Therefore, the Union submits that each grievor ought to have been provided a paid leave pursuant to article 15.2. 19. The Union relied on the following authorities to support their argument: Ontario Agency for Health Protection and Promotion v. Ontario Public Service Employees Union, Local 545 (Policy Grievance) [2013] 116 C.L.A.S. 172; Re Elesie and The Crown in Right of Ontario (Ministry of Health) (1980) 27 L.A.C. (2d) 283 (Swinton). 20. In terms of the three grievances relating to winter storms, the Employer agrees that each situation must be examined in context. However, the Employer argues that one must also have regard to the fact that the laboratory in question is located in Thunder Bay, Ontario. The Employer points out that winter storms in Thunder Bay are the norm. The Employer suggests that the winter storms in this matter were not unexpected or extra-ordinary, but rather a normal part of life in rural northern Ontario. 21. The Employer submits that employees choose where they live and that four of the grievors in this matter choose to live in a rural setting. The Employer points out that there are benefits and challenges attached to any location that employees might choose for their home. In the case of a rural setting, employees enjoy the beauty of the country, but they also face the challenges of travelling to and from the city for work or medical services. The challenge of getting to and from the city becomes even  18   more difficult when poor weather arrives in the winter. 22. The Employer argues that the grievances relating to a flight cancellation and physician appointment are not unforeseen or extra-ordinary. In both situations, the Employer argues that the employees made personal choices with respect to their situations. 23. In terms of the delayed or cancelled flight, the Employer noted that the grievor should have known that flight delays and/or cancellations are normal occurrences. Therefore, the grievor ought to have made allowances for such delays in her travel plans. 24. In terms of the grievor who took her husband to the fracture clinic at the hospital, the Employer points out that the grievor could have taken her husband to the appointment and still attended at work. In the Employer’s view, the situation was not an emergency and the grievor made a choice that she would rather be with her husband than attend at work. The Employer does not second-guess the decision of the grievor. Rather, the Employer argues that they are not required to grant special leave in these circumstances. 25. The Employer argues that they considered each request for special leave and none of the requests met the necessary criteria for granting the grievors special leave. In the Employer’s opinion, none of the situations were unforeseen or extra- ordinary situations. 26. The Employer relied on the following authorities: Ontario Agency for Health Protection and Promotion v. Ontario Public Service Employees Union, Local 545 (Policy Grievance), [2013] O.L.A.A. No. 375; Ontario Public Service Employees Union v. Ontario (Ministry of Health and Long-Term Care) (Thurman Grievance), [2002] O.G.S.B.A. No. 25; OPSEU (Donnon) v. Ontario (Ministry of Health), G.S.B. N0. 2136/91, June 26, 1992; OPSEU (Dennis F. Mailloux) v. Ontario (Ministry of  19   Correctional Services), G.S.B. No. 0087/88, February 27, 1989; OPSEU (Perretta) v. Ontario (Ministry of Finance), GSB No. 2002/2321, December 3, 2003; Simcoe County District School Board and OPSEU, Loc. 330 (Griffith) (re) [2002], O.L.A.A. No. 946 (Davie). DECISION 27. I begin by noting that this is not the first time these two parties have come before me to address issues arising from article 15.2 of the Collective Agreement. The parties previously referred six individual and one policy grievance to me, which I heard on August 1, 2013. I issued a decision on September 17, 2013, see Ontario Agency for Health Protection and Promotion v. Ontario Public Service Employees Union, Local 545 (Policy Grievance), [2013] O.L.A.A. No. 375. 28. In Ontario Agency for Health Protection and Promotion v. Ontario Public Service Employees Union, Local 545 (Policy Grievance), supra, I made the following comments with respect to the language found in article 15.2 of this Collective Agreement and the Employer’s obligation to consider a request for special leave: “ 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. 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. The language in 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.  20   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 benefit. 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 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 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. The parties have specifically limited entitlement to unforeseen extraordinary circumstances/events. Generally, unforeseen extraordinary circumstances/events would include circumstances beyond an employee’s control. 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 family. 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  21   may not have income protection that members of this bargaining unit enjoy. 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 leave. 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 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. 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. 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.” 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. 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. b. It must be a genuine exercise of discretionary power, as opposed to a ridged policy adherence.  22   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 rejected. 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. 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 leave. 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. The Employer is also required by the standard to treat like cases alike or else they will be seen as acting arbitrarily. 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 Employer because they were exercising their discretion in good faith and prior to the parties clarifying the intent of the language.” 29. During argument, both parties relied on my previous award to support their positions. At the same time, both parties acknowledged that each case must be examined based on the facts of the individual’s situation. 30. In order to assist the parties in the future, I believe some further elaboration is required with respect to a number of issues, which arise in the matters currently before me. 31. In terms of the entitlement to special leave under article 15.2, the language is clear that the parties have reserved such a leave for situations where an employee deserves some “special” or “compassionate” treatment. In this  23   regard, I am of the view that the situation under review by the Employer would be one that merits sympathetic or special treatment, as well as meeting the criteria of being “unforeseen or extra-ordinary circumstances/events” as set out in the memorandum of Agreement dated August 12, 2011. 32. Once the threshold criteria is met, then the Employer must consider the employees request. However, the Employer is not required to grant every request. 33. The parties have agreed that the Employer exercises a discretion and that they “may” grant a leave of absence with pay, see Ontario Public Service Employees’ Union v. Ontario (Ministry of Long Term Care (Thurman), supra, at paragraph 16. 34. When considering an employee’s request for special leave, the Employer is required to exercise their discretion reasonably. The Employer must consider the merits of the employee’s request for special leave. However, the Employer is not required to conduct a full blown investigation. The onus is on the employee to prove that they are entitled to consideration and to prove that the Employer failed to properly consider the merits of the request for special leave, see OPSEU and the Crown in Right of Ontario ( Ministry of Correctional Services), supra, at page 17-18. 35. Accordingly, when reviewing the Employer’s decision to deny a request, an arbitrator should examine the request and the Employer’s response. An arbitrator may also consider other relevant facts that would be known or ought to have been known at the time of the request for special leave (e.g. needs of the Employer, weather reports etc.) However, it would be inappropriate for an arbitrator to second guess the Employer’s decision based on additional facts brought forward at the hearing, if such facts were not known to the Employer or brought to the Employer’s attention by the employee who requested the special leave.  24   36. Furthermore, it is not the arbitrator’s job to determine whether management’s decision was “correct”. Rather, the arbitrator must examine the relevant facts and determine whether the Employer complied with their obligation to act reasonably when considering the request for special leave. 37. In determining whether the Employer acted reasonably, an arbitrator should examine if the Employer acted without discrimination, turning its mind to the merits of the request in a manner that is devoid of arbitrariness or bad faith, see OPSEU and the Crown in Right of Ontario (Ministry of Correctional Services), G.S.B. No. 0087/88, supra at page 20 and OPSEU (Perretta) v. Ontario (Ministry of Finance), GSB No. 2002/2321, supra, at paragraph 12. 38. At the same time, the reasons for the denial by the Employer should take into account the individual circumstances, including any emergency situation, sympathetic or exceptional aspect of the request for special leave, see Re Elesie and The Crown in Right of Ontario (Ministry of Health), supra at page 288. That does not always mean that the Employer has to fully explain their reasons for denying the request for special leave. In some circumstances, it will be apparent from the request that the circumstances were not extra-ordinary or unforeseen and do not meet the threshold for consideration. However, there may be other situations where the individual circumstances will cry out for an explanation. 39. Four out of the five grievances before me deal with weather related events. Therefore, before addressing the individual grievances, I believe that it would be helpful to make a few comments about requests for special leave due to weather related events. 40. I agree with the Employer that requests for special leave due to weather related events must always be examined in context. However, the context is not restricted to the geographic location of the workplace. 41. There is no doubt that in various parts of this country (or the world for that matter) different types of climates, experience various types of weather patterns  25   during certain times of the year. By way of an example, a Chinook wind is a regular weather experience during winter in the city of Calgary. Thunder storms can also be expected in most areas on Ontario during the hot humid summer. Hurricanes or a Nor’easter may affect areas in Atlantic Canada. 42. The arrival of snow and ice in the winter is not an unforeseen event in Ontario. Winter storms can generally be expected in Ontario during the months of November through to March. 43. The evidence before me in this matter is that severe winter storms are normal events in Northwestern Ontario. However, the timing and intensity of any storm is not always predictable. 44. There is also no doubt that some weather related events are extra- ordinary. By way of example, on April 19, 2013, the Employer closed the Thunder Bay laboratory when an extraordinary spring blizzard affected the Thunder Bay area. In this situation, the Employer granted all employees a leave with pay. 45. However, not all extra-ordinary weather related events will give rise to exceptional or compassionate situations. In any given situation, some people are affected differently than others, sometimes even those in the same geographical area. In any given situation, some people may lose power for various periods of time, while others do not. Furthermore, some people may have additional burdens such as caring for loved ones, freezing pipes, damage to their property etc. Others may have very little inconvenience or additional burdens befall them. 46. One also cannot lose sight of the fact that weather can adversely effect people differently depending on where they live within a specific geographic area. Those people who chose to live in an urban area may have more resources for clearing snow, than those who live in a rural area being affected by the same winter storm. That being said, employees who chose to live in the beauty of a rural setting, cannot reasonably expect that they will be granted a “snow day” whenever a winter storm affects their area.  26   47. Employees certainly have the right to chose where they wish to live. At the same time, it is also reasonable to expect that when they make such a choice, they will also take reasonable precautions to insure that they can make it into work. That may mean providing themselves with additional time to travel or staying with friends or family closer to the workplace when a storm is expected. It may also be expected that they will have snow clearing equipment and winter tires for an appropriate type of vehicle (truck or SUV). In my view, it would be unfair for an employee to not take reasonable steps and still expect to be paid for not coming to work. 48. In this regard, employees requesting special leave (weather related or otherwise) ought to provide the Employer with details respecting the actions they took to prepare for such situations. Furthermore, it is entirely appropriate for the Employer to take into consideration the employees conduct (action or inaction) when responding to a request for special leave. This is in addition to other relevant considerations including the needs of the workplace, see Ontario Public Service Employees Union v. Ontario (Ministry of Health and Long-Term Care) (Thurman Grievance), supra, at paragraph 8. 49. In my view, if the parties wanted to provide for “snow days”, then they could have easily negotiated a provision to provide a paid leave of absence for such weather related events. Instead, the parties agreed that the Employer has the discretion to grant special leave. 50. So while some weather events may be “unforeseen or extra-ordinary circumstances/events”, that only means that they may meet the initial threshold for consideration. Such circumstances do not automatically qualify for granting the request. The employee must provide additional information to the Employer explaining why the situation is exceptional or worthy of compassion. Then the Employer must exercise their discretion to consider the merits of each request and make a decision in good faith.  27   51. In summary the following is to be considered when reviewing any given request for special leave. • The employee request must provide all the necessary information explaining why the situation was unforeseen or extra-ordinary. The employee must also explain why the situation is exceptional or worthy of compassion. In addition, the employee should outline what, if any, precautions they made for such situations. • The Employer then must consider the merits of the request, which includes considering all relevant facts and rejecting any irrelevant facts. The decision must be made in good faith and without discrimination. The decision must be a genuine exercise of discretion as opposed to rigid policy adherence. If denied, the Employer should provide reasons as to why they denied the request and address any specific individual circumstances. 52. Having regard to the above comments, I now turn to address the individual grievances before me in this matter. i) The grievance of Katherine Mayo 53. In this situation, the grievor was delayed on her return to Thunder Bay when her flight from Winnipeg was cancelled due to weather conditions. The grievor was booked on a flight leaving Winnipeg on Sunday June 29, 2014 at 9:35 pm and arriving in Thunder Bay at 11:42 pm. The grievor had to stay in Winnipeg and take a later flight, which did not depart until Monday, June 30, at 9:35 pm. 54. I agree with the Employer that this situation was not unforeseen or unusual. Flight delays and cancellations are a normal part of air travel in this day and age. I am doubtful a day goes by without flights being cancelled or delayed due to weather or other reasons. The grievor was certainly inconvenienced by the flight being cancelled, but the situation was hardly unforeseen and would not normally evoke much sympathy. 55. I also note that the grievor was taking quite a chance by taking a flight so late on the evening before she was scheduled to work. This is particularly so,  28   when it appears that the next available flight was the following evening. The grievor ought to have anticipated that she may well be delayed or have her flight cancelled. 56. In my view, the Employer properly considered the request and was reasonable in denying the special leave in these circumstances. ii) The grievance of Angela Dupuis 57. The grievor in this situation asserted that she was unable to attend work due to a “medical emergency” involving her husband. She further asserted that her husband was unable to “manage on his own”. The grievor did not elaborate on these assertions, but did indicate that further details could be provided at a later date. 58. The Union took issue with Ms. Pszczolko not seeking any additional information. However, as I stated earlier, the onus is on the grievor to provide all the necessary information to justify the special leave request. 59. Additional information was provided at the hearing. This information was not provided to the Employer with the original request. As I indicated earlier, it would be unfair to consider this additional information after the fact because the Employer was not provided with it when they made their decision. That being said, even if the Employer had been provided the additional information, I would not fault the Employer if they denied the request. 60. The additional information indicated that the grievor’s husband is an emergency room doctor who suffers from acute disc herniation. At the time in question, the husband’s condition flared up. He was seen at the hospital between 8:00 am and 2:30 pm. There is no explanation why the grievor’s husband could not manage on his own. In my view, the grievor could have easily taken her husband to the hospital for the appointment then attended at work and picked him up at the end of her shift.  29   61. This is not like a situation where an employee may need to provide translation or make a decision on behalf of a family member (a minor or person under disability or Power of Attorney). In my view, the situation was not unforeseen or extra-ordinary. While the grievor deserves some compassion, I am satisfied that the Employer made their decision based on the relevant information provided to them and their decision was reasonable. iii) The grievance of Deirdre Payne 62. Ms. Payne provided a letter on December 3, 2012 explaining the efforts she made to attend work. The details included an explanation of how she attempted to use a bulldozer to plow her driveway. Significantly, the grievor also indicated that she felt a “twinge” in her back while shovelling. The grievor further indicates that she spoke to Ms. Pszczolko about the difficulties she faced getting out of her driveway. 63. The response from the Employer did not address the additional relevant information provided by the grievor (beyond the fact that a snow fall had occurred and roads were bad). 64. In these circumstances, I am not satisfied that the Employer fully considered all the relevant facts provided by the grievor in her request. Accordingly, I am of the view that the Employer violated the Collective Agreement by denying the request. 65. It should be noted that while I have found a violation of the collective agreement in this case. That does not mean that any employee who misses work due to a weather related event should expect to be granted special or compassionate leave. Rather, my decision only speaks to the process and the Employer’s obligation to consider all the individual facts submitted with the request and any relevant facts known to the Employer. The Employer need not conduct an interview or independent investigation. It only needs to consider the  30   merits of the individual application and make a decision in good faith and without discrimination. iv) The grievance of Allison Langille 66. Ms. Langille provided the Employer with a detailed explanation in a letter dated December 3, 2012. The explanation included an indication that the storm was larger than expected and that the grievor was without a phone line for most of the day and without power for most of the day. The grievor indicated that it would be unsafe to drive to work and physically impossible due to the road not being plowed. 67. The Employer considered the grievor’s situation and denied the request to provide special or compassionate leave. However, the Employer did not take issue with the grievor’s absence. Instead of special leave, the grievor was afforded the opportunity to use vacation or float days for compensation. The Employer specifically indicated that snowfall is a common occurrence in the rural area surrounding Thunder Bay and employees should have a plan in place to address such situations. 68. The grievor’s will-say provides some additional information about the circumstances on the day in question. However, that information was not provided to the Employer at the time of the request. Instead, the grievor indicates that she was never asked for any additional information. 69. As I have indicated earlier, the onus is on the employee to justify entitlement to special or compassionate leave. In justifying the request, the employee must provide all relevant facts known to the Employer supporting the request. 70. In my view, based on the information provided to the Employer, the decision to deny special or compassionate leave in these circumstances did not  31   violate the Collective Agreement. The Employer turned their mind to the merits of the application and considered all relevant information available to them. 71. I acknowledge that one might think that my decision with respect to Ms. Langille is at odds with the decision I made with respect to Ms. Payne. However, I do not see it that way. While the background facts are the same, the individual circumstances, as explained by the grievors in their request for special leave, were different. Ms. Payne’s grievance was only allowed because I was not satisfied that the Employer fully considered her individual circumstances. If I found that the Employer had properly considered the merits of Ms. Payne’s request, then her grievance may well have also been dismissed. That is because it is not my role to substitute my view for that of the Employer. Rather my role is only to decide if the Employer violated the Collective Agreement by not properly considering the individual request. v) The grievance of Clayton McKibbon 72. The request of Mr. McKibbon for special leave was not only related to inclement weather, but also entailed an accident where his vehicle slid into a ditch. Despite this accident, Mr. McKibbon was able to shortly thereafter get his vehicle out of the ditch and compose himself to attend at work for the rest of the day. 73. The Employer’s response in a letter dated January 18, 2013 did not address the individual circumstances of Mr. McKibbon. Instead, the letter provided what appears to be a “canned” response that winter storms are not extra ordinary or unforeseen events in the rural area surrounding Thunder Bay. Ms. Pszczolko’s will-say sheds no further light on whether the Employer turned their mind to the individual circumstances facing Mr. McKibbon that day. 74. The evidence is uncontested that Mr. McKibbon made a diligent effort to attend work and during his initial attempt he slid into a ditch. In my view, it is unforeseen that an employee will find themselves in a ditch while trying to attend  32   work. I am also of the view that these circumstances were both special and compassionate. This is particularly so, when Mr. McKibbon was able to actually compose himself and make it into work that day. 75. In these circumstances, like those of Ms. Payne, I am not satisfied that the Employer properly considered the individual circumstances of the grievor. Therefore, I find that the Employer violated the Collective Agreement. CONCLUSION 76. In conclusion the grievances of Ms. Mayo, Ms. Dupuis and Ms. Langille are dismissed. The grievances of Ms. Payne and Mr. McKibbon are allowed. 77. I remit the issue of damages to the parties and remain seized to address any issue that may arise with respect to implementation of this award. Dated at Toronto, Ontario this 3rd day of November, 2014. John Stout- Arbitrator