HomeMy WebLinkAboutMcKeown 15-01-281
IN THE MATTER OF AN ARBITRATION
BETWEEN:
DURHAM COLLEGE OF APPLIED ARTS AND TECHNOLOGY
(the “Employer”)
-and-
ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 353
(the “Union”)
AND IN THE MATTER OF THE GRIEVANCE OF MICHAEL MCKEOWN
Louisa M. Davie - Sole Arbitrator
Appearances
For the Union: Billeh Hamud, Counsel
For the Employer: Wallace Kenny, Counsel
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Award
In this grievance Michael McKeown ("the grievor") asserts that Durham College of Applied Arts
and Technology ("the Employer") has "unreasonably denied my request for personal leave with
pay under section 12.2 of the collective agreement." At the hearing the Ontario Public Service
Employees Union, Local 353 ("the Union") alleged also that the denial of leave with pay violated
the Human Rights Code. With respect to this latter ground the Union maintains that in the
circumstances of this case the denial of leave with pay amounted to discrimination on the basis
of family status and that the Employer failed to meet its duty to accommodate.
Facts
The grievor is a Disability Advisor with the Employer. He has been employed by the College
since September 2008. He is married and the father of two (2) young children who were (two) 2
years old and four (4) years old at the time of these events. His spouse is a schoolteacher and
is also employed full time.
On Thursday, December 12, 2013, while at work, the grievor received a telephone call from the
Montessori school which his two children attend. The school said one of his children was not
feeling well and needed to be sent home.
The grievor advised his supervisor that he would work through his lunch and asked to leave
early. This request was granted and the grievor left work around 2:30 p.m. that afternoon to pick
up his children from their school. The grievor's usual work day is from 8:00 a.m. to 4:00 p.m.
The grievor was paid for this day.
The following morning, Friday, December 13, 2013, at 6:34 a.m. the grievor emailed his
supervisor to let her know that he would not be in that day. Both his children were sick with high
fevers. The grievor advised his supervisor that the school had sent some 20 – 30 children home
the previous day. In his email to his supervisor the grievor indicated "I did try to make alternate
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arrangements for [his children] today but was unable to find anyone to care for them." The
grievor also noted that he did not think that he had any appointments scheduled for that day and
that he would check his email throughout the day.
Following receipt of this email the supervisor assumed that the grievor would want to use
vacation so that he wouldn't lose any pay. She advised the appropriate officials to record the
day as a vacation day.
When the grievor returned to work on Monday, December 16, 2013 and learned that his day of
absence from work would be recorded as a vacation day he emailed his supervisor as follows:
"In accordance with section 12.2 of the collective agreement, I would like to
request this day be recorded as Personal Leave with Pay."
The grievor's request was forwarded to the Employer's Executive Director, Human Resources.
She followed up with the grievor via email and subsequently met with the grievor.
In her email to the grievor the Executive Director, Human Resources wrote
"I wouldn't normally consider the need to stay home with a sick child or children
an extenuating circumstance as it is something that happens pretty frequently for
those with young children. That said, every request for paid leave under article
12.2 is considered on its own merit. I'd appreciate a few minutes of your time to
understand what factors you believe would warrant a paid leave. I'll send you an
invitation for later in the week."
Following her meeting with the grievor the Executive Director, Human Resources denied the
grievor's request for personal leave with pay stating:
"… Given that young children are pretty susceptible to colds and flus, and that a
large number of our employees have young children, I asked you to help me
understand what would make your situation an extenuating circumstance – i.e.
what would make it different from any other staff member whose child (ren) was
ill. You explained that as both of your children had taken ill suddenly, you were
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unable to make any alternative arrangements for their care and had no choice
but to stay home with them.
As indicated during our meeting, when reviewing Article 12.2 requests I always
confer with the supervisor prior to making a decision. In discussion with [the
supervisor], she indicated that you worked through your lunch and left early the
previous day as one of your children was sick and the school had called before
lunch asking that you pick the child up.
I appreciate the need for a parent to care for a sick child and fully support you
staying home to do so. However, I don't believe the situation warrants approval of
article 12.2. I would respectfully suggest that you might choose to use lieu time if
you have any; make up the hours missed; or, use a vacation day."
This grievance was filed following this denial of the grievor's request for leave with pay. (I note
parenthetically that the grievor has not had any pay deducted. Time has not been deducted
from his vacation bank and he has not been required to use lieu time or work extra hours to
make up for his one-day absence. The parties are awaiting this award to determine how the day
of absence is to be treated.)
The grievor's efforts to make alternate arrangements for someone to care for his children figured
prominently in the submissions of the parties.
It is not disputed that on December 13, 2013 the grievor contacted his parents to see if they
could look after the children so he could go to work. His parents were out of town, some 2 hours
away, and therefore unavailable to take care of the children that day.
The grievor and his spouse also discussed whether perhaps his wife could stay home to look
after the children. They looked through their respective collective agreements and determined
that the grievor could request personal leave with pay. This option was not available to his wife.
As a teacher she was entitled to ten (10) sick days but had previously been told that sick days
could not be used to care for sick children. Therefore, if his wife remained at home with their
sick children, it would be without pay.
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The grievor did not make any further inquiries of other family or of friends to see if they could
look after his sick children. His in-laws and the aunts and uncles of the children all work, as do
the friends or acquaintances whom the grievor would consider as caregivers for the day.
The collective agreement provisions applicable to this grievance state 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.
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.
Submissions of the Parties
The Union submitted that the Employer exercised the discretion provided to it under article 12.2
in an unreasonable manner. It failed to take into account all relevant factors and instead
considered extraneous and irrelevant factors.
It was the Union's position that the Employer failed to consider that the grievor was only asking
for one (1) day of paid leave, and that it was a request made to take care of his young children
who had suddenly become ill. The Employer failed to properly consider the fact that the grievor
tried to make other arrangements but was unable to do so in the one and one half hours (1 1/2)
before he was scheduled to be at work. The grievor's circumstances fell within article 12.2 as
the circumstances which required the grievor to request the leave were both compelling (to look
after his children) and unforeseen (the children's illness was sudden). In this regard Union
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counsel relied upon arbitrator Devlin's award in Seneca College and O. P. S. E. U. (2011) 107
C. L. A. S. 125 where she stated:
[17] The phrase "extenuating personal circumstances" which appears in the
second paragraph of Article 12.2 has been interpreted to mean circumstances
which are extraordinary, unusual, compelling or unforeseen: see Fanshawe
College and Ontario Public Service Employees Union February 15, 2006 (O'Neil
(unreported)); Ontario Public Service Employees Union and Centennial College
of Applied Arts and Technology June13, 2008 (MacDowell (unreported));
and Sheridan College of Applied Arts and Technology and Ontario Public Service
Employees Union November 23, 2009 (Bendel (unreported)).
[18] It has also been held that in deciding whether to grant personal leave with
pay under Article 12.2, the College must consider the circumstances of the
particular case and not base its decision on a rigid policy. Accordingly, there
must be a genuine exercise of discretion in which the College considers all
relevant factors and excludes consideration of extraneous factors. In this regard,
reference has been made to the award of a Board chaired by Arbitrator Swan
in Re Meadow Park Nursing Home and Service Employees internationalUnion,
Local 220 (1983), 9 L.A.C.(3d) 137. In addressing the exercise of managerial
discretion in that case, the majority of the Board commented as follows:
In particular, we think that the exercise of the Employer's discretion must
be in good faith, must be a genuine exercise of discretion and not merely
the application of rigid policy, and must include a consideration of the
merits of each individual case. All relevant factors must be considered,
but no extraneous or irrelevant considerations may be taken into
account.
Finally, Article 12.2 of the collective agreement provides that requests for leave
shall not be unreasonably denied.
(see also Seneca College and O. P. S. E. U. (2011) 204 L. A. C. (4th) 381 (Howe))
In this case the extraneous and irrelevant factors taken into account by the Executive Director,
Human Resources in denying the paid leave was the fact that other employees were parents of
young children who would also be susceptible to colds and flus. The grievor's circumstances
should not have been compared to other parents with children. His circumstances should have
been considered on their own. The fact that the Employer considered the circumstances of
other parents indicated that its decision was unreasonable and that it was arbitrary.
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Union counsel also asserted that the Employer had discriminated against the grievor on the
grounds of family status by refusing to accommodate his unforeseen child care needs by
providing a single day of paid leave to enable the grievor to remain at home with his sick
children. Counsel submitted that the grievor did not have any scheduled appointments that day
so that there was no interference with the Employer's operations and no undue hardship in
granting one day of paid leave.
In support of this position reliance was placed on Attorney General of Canada v. Johnstone,
2014 FCA 110 ("Johnstone") in which the Federal Court of Appeal articulated a fourfold test to
be met in order to make out a prima facie case of discrimination on the prohibited ground of
family status as a result of child care obligations. In Johnstone the court found:
[93] I conclude from this analysis that in order to make out a prima facie case
where workplace discrimination on the prohibited ground of family status
resulting from childcare obligations is alleged, the individual advancing the claim
must show (i) that a child is under his or her care and supervision; (ii) that the
childcare obligation at issue engages the individual’s legal responsibility for that
child, as opposed to a personal choice; (iii) that he or she has made reasonable
efforts to meet those childcare obligations through reasonable alternative
solutions, and that no such alternative solution is reasonably accessible, and (iv)
that the impugned workplace rule interferes in a manner that is more than trivial
or insubstantial with the fulfillment of the childcare obligation.
(Union counsel noted that this test has been adopted by the Human Rights Tribunal of Ontario
in Wing v. Niagara Falls Hydro Holding Corporation (unreported decision dated October
2, 2014)
It was argued that each part of this four-fold test was met in the instant case. As a parent the
children were under the grievor’s supervision. He was legally responsible for the children. He
had made reasonable efforts to meet his child care obligations through reasonable alternative
solutions. With respect to the fourth criteria Union counsel submitted the "impugned workplace
rule" was the Employer's exercise of its discretion which, in this case, interfered in a substantial
manner with the grievor's child care obligations.
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The Employer submitted that article 12.1 and 12.2 the collective agreement provided a
comprehensive code for the granting of personal leaves. These articles clearly indicated that
whether leave with pay for personal reasons should be granted was within the discretion of the
Employer. The standard to be applied to the exercise of that discretion was one of
reasonableness.
The articles of the collective agreement provided an analysis which differentiated between
unpaid leave for personal reasons and paid leave for personal reasons. The Employer could
exercise its discretion in favour of granting paid leave for personal reasons where there were
"extenuating personal circumstances." That precondition was not met in the circumstances of
this case (see Centennial College of Applied Arts and Technology and O. P. S. E. U. June
13, 2008 (McDowell) unreported and Sheridan College of Applied Arts and Technology
and O. P. S. E. U. November 23, 2009 (Bendel) unreported.)
It was argued that in the circumstances of this case the grievor's efforts to make alternate
childcare arrangements were relevant to determining whether there were extenuating personal
circumstances. The Employer asserted that the grievor's efforts to make alternate arrangements
were insufficient and pointed also to the fact that the circumstances were not unusual,
unforeseen or exceptional. The grievor looked only to his wife and his parents to care for his
children when they suddenly became ill. He made the choice to absent himself from work
because his parents were not available and his wife would not be paid if she stayed home.
These circumstances were not extraordinary.
Parents can expect that from time to time their children may be required to stay home because
of illness. This is particularly so in this case where the grievor had picked up his ill child the day
before and knew that the school had sent home 20 – 30 children because of illness. It was
entirely likely that in those circumstances the children would have to stay home the following
day. The grievor could have, and should have, made arrangements to accommodate that
possibility on December 12, 2013. The failure to do so, and his failure to have his wife stay
home, pointed to the inadequacy of his efforts to make alternate arrangements. It was argued
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that in order for there to be "extenuating personal circumstances" one would expect there to be
some distinguishing feature of an emergency or unexpected nature so that the backup plans for
alternate childcare arrangements could not accommodate the circumstances. That was not the
case in this instance.
Here the Employer properly exercised its discretion in a reasonable manner. The Executive
Director, Human Resources considered the individual and particular circumstances facing the
grievor. She turned her mind to the merits of the grievor's request and did not adhere to a rigid
policy. She concluded there was nothing unusual or extenuating about the grievor’s
circumstances which would warrant paid leave. Parents can expect that their children may be ill
from time to time and thus require someone to stay home from work. That context was not
exceptional and was the context considered when the Employer exercised its discretion. In that
context the exercise if discretion was reasonable. An arbitrator should not conclude that the
exercise of discretion was unreasonable merely because the arbitrator may have decided the
matter differently (see Fanshawe College and O. P. S. E. U. February 15, 2006 (O'Neill)
unreported.)
Employer counsel argued that there was no evidence of discrimination on the basis family
status. The cases relied upon by the Union did not apply. They were factually distinguishable. In
particular Johnstone supra involved long-term accommodation of childcare obligations in
circumstances where the employee had made extensive and extraordinary efforts to mak e
alternate arrangements. In any event in this case the Employer granted the personal leave to
accommodate the grievor's parental responsibilities. Under the collective agreement the parties
negotiated an article which defined that such personal leave did not have to be paid.
Decision
I have concluded that the grievance must be dismissed. The Employer did not violate article
12.2 of the collective agreement when it denied the grievor's request for a paid leave of absence
to enable the grievor to stay home to care for his sick children. The Employer's exercise of its
discretion was reasonable as it properly turned its mind to the grievor’s request, considered
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relevant factors and not extraneous ones, and provided the grievor with a number of options ---
he could choose to take unpaid leave, use vacation or lieu time, or arrange to work extra hours
to lessen the impact of the loss of pay.
It must be remembered that the issue in this case is whether the grievor should be paid for a
day he was absent from work. The issue is not whether the grievor should have been granted
leave to be absent from work.
I start with the principle that the employment relationship is premised on pay for work---
employees who attend work and perform their job are entitled to be paid. Conversely,
employees who do not attend work are not entitled to be paid unless the collective agreement or
statute provides otherwise. In the circumstances of this case statute does not provide otherwise.
Although the Personal Emergency Leave and Family Medical Leave provisions of the
Employment Standards Act statutorily entitle employees to time off to deal with the type of
family responsibilities at issue in this case, that statutory right is time off without pay. Therefore,
in order to be entitled to time off with pay the grievor must be able to point to a provision in the
collective agreement which grants him that entitlement.
In the circumstances of this case the collective agreement article upon which the grievor relies
so that he will be paid even though he did not work is article 12.2. Unlike other leave with pay
provisions found in the collective agreement which provide for pay notwithstanding an absence
from work, article 12.2 does not provide for an automatic or absolute "right" or "entitlement."
The article requires that certain preconditions must exist for leave with pay and also provides for
the exercise of Employer discretion.
Arbitrator McDowell in his award involving Centennial College supra conducted a thorough
analysis of article 12.2 and a number of the awards which have dealt with that article. I agree
with and adopt that analysis. In particular the following passages from his award are applicable
to the instant grievance. These passages articulate the difference between an unpaid leave of
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absence for "legitimate personal reasons" under article 12.1, and leave of absence with pay "in
extenuating personal circumstances" under article 12.2. The passages also deal with the
meaning to be given to the latter term and make it clear that "extenuating personal
circumstances" means something that is out of the ordinary.
The personal leave of absence provisions in Article 12 are not a model of
linguistic precision; but, we think that their thrust can be gleaned from comparing
the way in which Article 12.1 and Article 12.2 fit together. For while both clauses
envisage the exercise of Employer discretion, we think it is fair to say that there is
a distinction between getting time off work to attend to personal concerns, on the
one hand, and having the Employer pay for it, on the other; moreover, given the
way in which the clauses are framed, it appears to us that it is far more difficult to
get "time off with pay" under Article 12.2, than simply "time off" under Article 12.1.
Because it is clear that the “legitimate personal reasons” for leave under Article
12.1, will not necessarily constitute “extenuating personal circumstances”, under
Article 12.2; or to put the matter another way: “leave” and “leave with pay”, are
not the same thing, and neither of them are an absolute “entitlement”.
As we have already noted, under Article 12.1 the College may grant time off,
provided that the employee has “legitimate personal reasons” for his/her
proposed leave of absence. There are no negotiated criteria to guide the
exercise of this discretion, nor are there any stipulated hurdles that the employee
must meet, other than having "legitimate personal reasons" for seeking time off...
.
By contrast, Article 12.2 requires more than just "legitimate personal reasons"
for the requested leave...
Article 12.2 then goes on to describe the kinds of circumstances which must be
present in order to trigger the special discretionary “leave with pay” that is there
described: not just time off to attend to personal business, but also
indemnification for any lost wages.
Religious leave aside, the language of the agreement suggests that leave with
pay, will be justified only for something unusual, or special, or unforeseen, or (to
use the words of the clause itself) "in extenuating personal circumstances". The
use of the word "extenuating" seems to be an attempt to capture something that
is extraordinary, or unforeseeable, or beyond the individual's personal
control...(pages 21-23)
…
Article 12.2 then goes on to say, that if an employee has done what is
contemplated in the first two sentences of the clause, and if the situation comes
within the parameters of the third sentence, then the College "may... in its
discretion" grant the leave without loss of pay. The permissive “may” is followed
by the confirmatory “in its discretion”; and in our view, the repetition emphasizes
the discretionary nature of the exercise. Then the clause stipulates that the
employee’s request shall not be "unreasonably denied". (page 24)
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...the way in which the clause is framed, means that even if the employee can
point to “extenuating personal circumstances”, the Employer still has a discretion
to grant or refuse the leave, with pay provided that it acts reasonably. Moreover,
we have emphasized the words “with pay”, because that is the key distinction
between the leaves granted under Article 12.1 and leaves granted under Article
12.2. And in our view, one of the factors that goes into the “reasonableness
calculus” is the fact that the employee is already getting the time off to attend to
personal business, leaving it for the College to consider whether it is also
“reasonable” to indemnify the employee for all or part of the time not worked.
(page 25)
Finally, it is clear that Article 12 does not create an absolute “entitlement” to a
leave of absence, or to a leave of absence “with pay”; and, in respect of leaves
“with pay” under Article 12.2, there is a more detailed obligation on both parties
to consider, and seek to balance, their potentially competing interests. Or put
differently: the overall “reasonableness” of the Employer’s response, may depend
upon the overall “reasonableness” of the employee’s claim, as well as the
circumstances in which it is made... (pg. 26)
Nevertheless, the language used by the panel in respect of Article 12.2, suggests
that there must be something exceptional about the situation before an
employee, who has already been granted a leave of absence to deal with his/her
personal situation, should also be indemnified for any wage loss occasioned by
missing work. Pay for time not worked is the exception, rather than the rule; and
to come within that exception, the employee must not only demonstrate that
there are extenuating or special personal circumstances, but also that it would be
unreasonable for the Employer not to subsidize the leave in all the
circumstances, including those identified by the employee. (page 33)
In the board’s view, employees should not normally expect to be paid for time not
worked, nor does Article 12.2 require that subsidy; so that in order to make a
successful claim under Article 12.2, there had to be something extra-ordinary
about the situation. (page 41)
…
...in order to come within the ambit of Article 12.2, there must be some unusual
set of facts, beyond the employee’s control, and not commonly associated with
the vagaries and travails of ordinary life.
In summary then, the cases establish that Article 12.2 is not an automatic
entitlement... there has to be something extraordinary and compelling about the
situation, before the Employer can be required to pay for time not worked...It is
not sufficient that the arbitrator might have exercised the discretion differently;
and, there may a “range of reasonableness” in these situations – a spectrum,
where there could be good faith difference of opinion. And so long as the
manager’s determination is within that “reasonable range”, an arbitrator will not
“second guess” the decision of the Employer, or substitute his/her decision for
that of the Employer. (pages 42-43)
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I agree with this analysis and these sentiments and adopt arbitrator McDowell's interpretation of
articles 12.1 and 12.2. In this case I have concluded that the child care obligations facing the
grievor on December 13, 2013 were not "extraordinary or unforeseeable" or an "unusual set of
facts." Certainly the mere fact that the grievor may have to suffer a loss of pay does not
necessarily make his situation "extenuating personal circumstances".
I accept the circumstances of the illness of the children was beyond the grievor's control. That
however does not render the circumstances extraordinary. The fact that the onset of a child's
illness was unanticipated does not take it out of the ordinary. In any event, and as the Employer
has argued, in this instance the sudden and unanticipated illness occurred on Thursday when
the grievor was called at work to pick up his children. Paid leave for time not worked on that
day is not at issue in this grievance. On Friday the illness of the children was no longer
unforeseeable as at least one child was ill the day before, and the grievor knew that the day
before 20-30 children had been sent home from school because of illness.
In my view the necessity to stay home with ill children is something that is commonly associat ed
with the vagaries and travails of being a parent. It is entirely likely, foreseeable and usual that
young children will at some point become ill during childhood and that, if they are not yet old
enough to take care of themselves, someone will be required to look after them at home. I am
not persuaded that when the parties to this collective agreement negotiated that paid leave
could be granted (in the Employer's discretion) in "extenuating personal circumstances" they
intended that the Employer would have to pay for time not worked because an employee stayed
home to care for ill children.
Arbitrator McDowell's decision in Centennial College supra is also instructive and applicable in
so far as it refers to the obligations of the employee who seeks paid leave under article 12.2.
Arbitrator McDowell found that an employee requesting leave with pay had some responsibility
to see if there was a reasonable accommodation or balance to be found between the
employee’s leave request and the Employer's reluctance to pay wages for time not worked. In
this regard arbitrator McDowell referred to the opening words of article 12.2 stating:
...There is an obligation on the applicant employee to make all reasonable efforts
(i.e. “...will be scheduled where possible..”) to schedule the time off in a way that
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will not collide with his/her work responsibilities; and there is also a requirement
to give "reasonable notice" to the supervisor concerned. Both of these
requirements put an onus on the employee to consider the needs of the College;
and as a practical matter, they may also require the employee to engage in a
dialogue with his/her supervisor in order to explore the possibilities – which is to
say: with respect to notice, scheduling, minimizing disruption, and so on. (page
22)
It seems to us that if there is a duty on the Employer to consider all the relevant
facts - as the cases say there is – then there is concomitant duty on the part of
the employee to take into account the Employer’s interests, and to make an effort
to schedule appointments in a way that will not engage Article 12.2. The words
“scheduled where possible” in the first sentence of Article 12.2 suggest to us that
a claimant must at least explore these possibilities; and in this regard, there is a
duty of reasonable consideration, on the employee’s part as well. (page 46-47)
However in our view, that is to treat Article 12.2 as an entitlement, which it clearly
is not; ...Moreover in our view, the “reasonableness” of the Employer’s position
may be fairly affected by the “reasonableness” of the employee’s behaviour –
particularly when the employee may have some influence on the timing of the
leave, or may be able to avoid or mitigate any economic loss. (page 49)
In addition arbitrator McDowell commented that in the circumstances of the case before him it
was not improper or unreasonable for the supervisor to take into account other options and
alternatives available to an employee requesting personal leave without loss of pay (see page
47 of the award).
I endorse arbitrator McDowell's analysis. In this instance the grievor did not consider a number
of alternatives available to address the loss of pay because he had to look after his children and
could not attend work. These included such things as the use of lieu time or arranging to work
extra hours.
Arbitrator McDowell's analysis of an employee's obligation when the employee seeks to be
indemnified for loss of wages caused by an absence from work leads me to address the Union's
position that the Employer discriminated against the grievor on the basis of family status and
failed to accommodate him. The Union relies on Johnstone supra. The third part of the four-
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part test enunciated in that decision requires an employee to "make reasonable efforts to meet
those childcare obligations through reasonable alternative solutions, and that no such
alternative solution is readily accessible." That is similar to arbitrator McDowell's comments that
an employee also has some obligation in these types of circumstances and that the "duty of
reasonable consideration" is not a one-way street.
In the circumstances of this case, beyond using lieu time, vacation time or working extra hours
to minimize his loss of pay, the grievor's spouse could have stayed home. This is not a case
where the grievor made extraordinary efforts to avoid his absence from work and the loss of pay
it would cause. His spouse was available to stay with the children. It is true that she would not
have been paid. That however does not mean that this was not a reasonable alternative solution
that was readily accessible. In the circumstances of this case to find otherwise effectively means
that the Employer would always be required to pay an absent employee for time not worked
when the employee stays home to care for a sick child.
Johnstone does not stand for the proposition that an Employer must indemnify an employee
who has lost wages because he didn't work as he was required to stay hom e to care for a sick
child. It must be remembered that Johnstone involved a permanent, long-term accommodation
of childcare obligations through the scheduling of work in circumstances where the Court
accepted that Ms. Johnstone had made "serious but unsuccessful efforts to secure reasonable
alternative childcare arrangements", had investigated numerous regulated and unregulated
childcare providers, and where the work schedules of both parents were such that neither could
provide the childcare needed on a reliable basis. Those are not the facts of this case.
In Johnstone the Human Rights Tribunal and the Court didn't award lost wages because Ms.
Johnstone stayed home to care for her children. The lost wages were awarded because the
Employer failed to accommodate her request for static shifts. In Johnstone the "impugned rule"
finding of the Tribunal and the Court revolved around the requirement to work a variable shift
schedule. It did not revolve around the requirement that an employee has to perform work in
order to be paid. Neither the Human Rights Tribunal nor the Federal Court of Appeal went so
far as to say that it is discrimination on the basis of family status for an Employer to refuse to
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reimburse an employee for lost wages caused by an absence from work to look after sick
children. If that type of paid leave was required in order not to offend human rights legislation
the Personal Emergency Leave and Family Medical Leave provisions of the Employment
Standards Act would be discriminatory as these only provide for time off without pay.
The possibility that the grievor’s spouse could also have stayed home to look after the children,
albeit without pay, has bearing on both the issue of whether there were "extenuating personal
circumstances" and whether there were reasonable alternative solutions. The grievor is not a
single parent. Nor is this a case where the grievor's children suddenly and unexpectedly took ill
while the spouse was away and there was no one else available. The presence of those types
of factors may mean that alternative childcare arrangements are not readily accessible so that
the grievor's child care obligations are out of the ordinary or his personal circumstances
"extenuating". In this case the grievor could reasonably have anticipated on Thursday when he
picked up his sick child from school that his child(ren) would be too ill the next day and it would
be prudent to make alternative arrangements for care. Not only was his own child sick but he
knew the school had sent home 20 – 30 children who were ill. In my view, given these
circumstances, he had more time than the mere one and one half (1 1/2) hours to make
alternative arrangements as suggested by the Union.
This brings me then to the Union's position that the Employer exercised its discretion in an
unreasonable or arbitrary and discriminatory manner. Again I refer to arbitrator McDowell's
award which contains a comprehensive analysis of the exercise of discretion pursuant to article
12.2 and the awards which have addressed that issue. On page 27 and following of that award
arbitrator McDowell states:
Given that the clause lacks negotiated criteria to guide the exercise of discretion
(other than an obligation to be “reasonable”), each of the cases focuses, to some
degree, on the process which the Employer is obliged to follow; moreover, the
adjudicators have sometimes used language that is reminiscent of the approach
taken by the Courts when reviewing the exercise of discretion by a statutory
decision maker. Thus, it is said that the Employer must act in good faith; and
that the Employer must take into account all relevant considerations and eschew
irrelevant ones; and that there must be a genuine consideration of the individual
claim, without being unduly blinkered by past practice or pre-established policy.
(pages 27-28)
17
...
On the other hand, when the parties have made the Employer’s determination
subject to review on a "reasonableness basis”, they have provided for an
individualized analysis and review, in order to determine whether the decision
was based upon reasonably justified criteria, having regard to whatever
countervailing considerations are evident in that particular case.
Be that as it may, while the arbitration cases dealing with Article 12 reveal a
genuine concern that each employee claim must be fairly and individually
considered, arbitrators have been far less intrusive in respect of what is meant by
"extenuating circumstances” or with respect to how the Employer ultimately
exercises its discretion, once the Employer has ascertained the relevant
considerations. Indeed, if the decision maker has fairly turned his/her mind to the
claimant’s position and has fairly considered the situation, many arbitrators have
shown little appetite to “second guess” the outcome, unless the decision is
manifestly and demonstrably unreasonable.
The onus of establishing a breach of the agreement lies upon the Union; and,
arbitrators have recognized that there may be a ‘range of reasonableness’, and
potentially different reasonable answers to the question of whether an employee
should not only get time off, but also get time off “with pay” (i.e. that the Employer
must not only facilitate the employee’s ability to address his/her private concerns,
but also subsidize that endeavour). Moreover, even in the judicial realm from
which the administrative law tests are drawn, it has been recognized that the
concept of “reasonableness” involves some permissible variability of process and
result. (See the observations of the Court in Minott v. O’Shanter Developments
Co. (1999), 42 O.R. (3d) 321 (O.C.A.) and compare Ryan v. Law Society (New
Brunswick) [2003] 1 S.C.R. 247 (S.C.C.) where, in different contexts, the Courts
have held that a test of “reasonableness” permits a range of outcomes, and
demands a degree of deference to the choice of the decision maker). (pages 31-
32)
...
What the arbitrators are suggesting here, is that it is important to try to decide
these cases objectively, and not to rely unduly on the adjudicator’s subjective
sense of the equities of the situation; because without clearer guidance in the
collective agreement, an arbitrator should be reluctant to step into the shoes of
management, or to (notionally) “usurp” the discretion that has been so clearly
given to the Employer. The question is not whether the arbitrator would have
been inclined to grant the leave requested, but rather whether the managerial
determination is clearly and objectively unreasonable. (page 35)
After referring to the Fanshawe College supra award of Arbitrator O'Neill relied upon by the
Employer in this case arbitrator McDowell noted:
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Once again, there was a disinclination to supplement specifically negotiated
benefits, through the vehicle of Article 12.2; and, there was also a distinct
disinclination on the part of the board to “second guess” the decision of the
College, or to dispense “palm tree justice”, or to substitute its own view for that of
the manager. The board said that a difference of opinion between managers or
between the arbitration board and a manager does not, by itself, ground a breach
of Article 12.2. An “ungenerous” decision is not necessarily “unreasonable”. And
the fact that reasonable persons might differ, does not amount to a breach of the
collective agreement. (page 39)
In this case the facts indicate that the Executive Director, Human Resources considered the
merits of the grievor's request, and the individual and particular circumstances of the grievor.
The Union submits that the Executive Director, Human Resources considered irrelevant factors
and erroneously compared the grievor to other parents of small children. I do not accept that
position. The Executive Director, Human Resources did not "compare" the grievor to others.
Rather, she concluded that the grievor's circumstances were not "extenuating" or out of the
ordinary. The circumstances were usual and not extraordinary for those with young children.
In the circumstances of this case I fail to see that there was any violation of the collective
agreement in the manner in which the Executive Director, Human Resources exercised her
discretion. She fairly considered the grievor's request and actively sought out the information
which the grievor considered as relevant to bringing him within the parameters of "extenuating
personal circumstances." Her mind was not closed to the possibility that the grievor’s
circumstances were perhaps out of the ordinary. She gave honest consideration to the grievor's
situation. Ultimately she disagreed with the grievor that his circumstances were "extenuating".
That disagreement however does not mean that the exercise of discretion was unreasonable.
As noted herein arbitrators have accepted that there may be a "range of reasonableness."
Where the Employer's response falls within that range of reasonableness it is not the role of an
arbitrator to substitute his/her view for that of the Employer and second-guess the Employer.
In conclusion therefore the grievance is dismissed. I have determined that the grievor's
circumstances on December 13, 2013 were not "extenuating personal circumstances" requiring
19
paid leave under article 12.2. (The circumstances for which the leave was required were
certainly "legitimate personal reasons" under article 12.1). In addition I have concluded that the
Employer exercised the discretion given to it under article 12.2 in a reasonable manner that was
neither arbitrary, discriminatory or in bad faith.
Dated at Mississauga this 28th day of January, 2015
Louisa Davie
Louisa M. Davie