HomeMy WebLinkAboutKuner 04-03-26
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Concerning an arbitration]
Between:
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Teranet Inc.
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and
Ontario Public Serviçe Employees Union
Grievance of Sandesh Kuner, Discretionary Day
Arbitrator: Joseph W. Samuels
For the Parties
Union
Mitch Bevan, District Grievance Officer
Sandesh Kuner, Grievor
Charles 0' Connor ~ Local 507 President
Company
Julie O'Donnell, Counsel
Chris Yankou, Human Resources Manager
Annette Pelletier, South West Production Manager
Cheryl Zvonkin, Team Co-ordinator
Hearings in London, March 20, 2003, and March 24, 2004
é.
.
1
Sandesh Kuner stayed home to be with her sick nine-year-old son on
December 12,2001. She called in to say that she would be off for the day.
She assumed she would be granted a Discretionary Day off with pay, as is
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provided in Article 19.03 of the Collective Agreement.
The next day, she stay~d home for the same reason and again called in
to say she would be off for the day. Again, she assumed that she would be
granted a Discretionary Day off with pay. Several times in the past, she had
stayed home in similar circumstances and had been paid for the two days. In
mid-morning, she spoke with her Team Co-ordinator, Cheryl Zvonkin, who
said that Ms. Kuner could not have a Discretionary Day for the second day,
but could choose some other way to be paid. Ms. Kuner insisted that she
wanted to take a Discretionary Day.
When the Discretionary Day was not granted, she grieved.
The Collective Agreement provides in Article 19.03 for "Discretionary
Days" as follows:
The Employer recognizes that employees have
responsibilities and commitments involving the
family and their personal lives and that at times
unplanned emergencies and crises may arise. The
Employer understands that it may, at times, not be
possible for the employee to make alternate
arrangements on short notice to tend to these
issues. The Employer may in its discretion grant an
employee's request for a paid personal leave of
absence for up to 6 days in a calendar year. The
Employer may consider the reasons, urgency, its
operational requirements, or other factors it
considers relevant in deciding whether to grant
such leave, and approval of such requests will not
be unreasonably withheld.
This language is a revision of the fonner Article 19.03 which provided
for "Personal Leave" as föllows:
The Employer recognizes that employees have
responsibilities and commitments involving the
family and theiJ9 personal lives. The Employer may
in its discretion grant an employee's request for a
paid personal leave of absence for up to five (5)
days in a calendar xear. The Employer may
consider the reaso~s ff>r the requested leave, its
operational requirements, or any other factor it
considers relev~t in deciding whether to grant
such leave, and approval of such requests will not
be unreasonably withheld.
It is to be noted that the two provisions are very similar. The new
revised Article 19.03 places emphasis on the "emergency" nature of a
request for Discretionary Leave in the new words which appear below in
bold italics-
The Employer recognizes that employees have
responsibilities and commitments involving the
family and their personal lives and that at times
unplanned emergencies and crises may arise. The
Employer understands that it may, at times, not
be possible for the employee to make alternate
arrangements on short notice to tend to these
lssues.
In order to help its managers and staff understand the significance of
this change in language, the Company prepared an addendum to its
Manager's Guide to Teranet Human Resources Practices. This addendum
runs to four and one-half pages, and includes the following concerning the
circumstances that Ms. Kuner found herself in:
An employee can be granted a Discretionary Day
for the 1st day of illness of a family member. They
should spent (sic) part of that day making alternate
arrangements in the event the illness goes beyond
one day. When an employee must leave to pick up
a sick child at day care or when injury or illness
results in hospitalization, it is appropriate to grant a
Discretionary Day(s).
2
t ;
3
On September 18, 200 i, there was a staff meeting at which
management explained the significance of the changes in Article 19.03. I
don't know the precise details of wh~ was discussed, but it appears that
management did not hand out the 'addendum to the Manager's Guide, and
nor was its specific language r~ad out, and, in particular, it does not appear
that management spelled out the details concerning the use of Discretionary
Days in the case of a multi-day illness of a family member. Management did
convey the point that, henceforth, a Discretionary Day was to çover an
emergency situation. The grievor was at this meeting. I find that she was not
told the new rule concerning the use of Discretionary Days in the case of a
multi-day illness of a family member, and nor ought she to have understood
from what was said that this is the way management would apply the
provIsIon.
In general terms, I think that the addendum to the Manager's Guide is
a very good guide on how to apply the revised Article 19.03. Indeed, in his
argument, Mr. Bevan acknowledged that he takes little exception with the
addendum. In particular, it is not unreasonable for management to expect
that an employee would spend part of the first day of illness of a family
member making alternate arrangements in the event the illness goes beyond
one day.
The real issue in this case is whether the Discretionary Day was
"unreasonably withheld", given that Ms. Kuner did not know nor ought she
to have known that she would be denied a Discretionary Day on the second
consecutive day of illness of a family member, and that she learned of
management's guidelines when it was already too late to make alternative
arrangements for the care of her child on the second day of illness.
, The grievor may have asked her husband to take care of the child on
the second day (though, apparently, he is uncomfortable caring for a child
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who is coughing and chokin~), but, on the second day, he was already at
work when the grievor learned that management expected her to make
alternate arrangements for the secon4 day of illness.
The grievor may have ,callèd on the willing help of her mother, who
lives in Brampton, and coul!have taken the child to her mother for the day.
But the drive to Brampton takes almost two hours and the return trip takes
the same time, so that, by the time the grievor learned that management
expected her to make alternate arrangements for the second day of illness, it
was impossible to get to her mother's and back and still have any meaningful
period of time to work her shift.
In my view, the specific provision concerning the application of
Discretionary Days in the case of a multi-day illness of a family member
ought to have been brought to the attention of staff and the Union, before it
was applied with rigor. Provided adequate steps are taken to communicate
the specific rule to staff and Union (I say the Union so that the Union
representatives will have a chance to alert their members concerning the rule),
management's guideline is reasonable. But in our case, I don't think Sandesh
Kuner had a reasonable chance to comply with the specific provision.
Ms. Kuner had called in at 8AM on the first day of her child's illness.
There was plenty of time for someone from management to give her warning
that she was expected to make alternate arrangements for the child's care for
the next day, if the illness extended into the next day.
Once staff is given adequate notice of this provision (and it is likely that
this has taken place by now, and this award may assist in giving notice), the
application of management's guideline concerning the multi -day illness of a
family member would be reasonable. If an employee is denied a
Dišcretionary Day for the second day of the illness, it could not be said that
the Discretionary Day was "withheld unreasonably".
4
5
In conclusion, I find 'that, in the particular circumstances of this case,
the grievor's Discretionary Day for December 13,2001 was withheld
unreasonably. I order that she be ~mpensated to put her in the position she
would have been in had the Discretionary Day not been denied.
I will remain seized t~deal with any issue arising from this Order.
pone at London, Ontario, this 26th day of March, 2004