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Home My WebLink About2014-1547.Herring.15-05-16 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2014-1547 UNION#2014-0526-0067 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Herring) Union - and - The Crown in Right of Ontario (Ministry of Attorney General) Employer BEFORE Nimal Dissanayake Vice-Chair FOR THE UNION Natalie Dehaney-Stewart Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Stephanie Borcsok Treasury Board Secretariat Centre for Employee Relations Employee Relations Advisor HEARING June 11, 2015 - 2 - Decision [1] A grievance dated May 9, 2014, filed by Ms. Kalista Herring, Client Services Representative, came before the Board pursuant to the Mediation-Arbitration provisions in article 22.16 of the collective agreement. The parties advised that there was no possibility of resolution of the grievance, and requested that the Board ought to hear the matter and issue a decision. [2] The grievance engages article 49 under the title “Special and Compassionate Leave”, which provides: 49.1 A Deputy Minister or his or her designee may grant an employee leave of absence with pay for not more than three (3) days in a year upon special or compassionate grounds. 49.2 The granting of leave under this article shall not be dependent upon or charged against accumulated credits. [3] The material facts are undisputed. On April 23rd 2014 at approximately 3:00 p.m., the grievor received a call from the day care centre advising that her 15 month old son was ill. The grievor left work immediately, picked up the child and went home. The next morning, April 24th, the child was still ill. As a policy, the day care did not accept children who were ill. Therefore, the grievor called and informed the employer that she would not be reporting to work that day. [4] The grievor sought special and compassionate leave for her partial absence on April 23rd and for April 24th. The employer had a discussion with the grievor about her request for leave. The grievor was asked what contingency plans she had put in place in the event of the child being unable to go to daycare due to illness, and whether her husband could not have stayed home to look after the child. She was asked whether no family member or friend lived within driving distance, who could have cared for the child. The grievor was further asked whether she had vacation credits available to cover her absences, and if not, whether she would agree to treat the period of absence as unpaid leave. The grievor was also questioned about what attempts were made to find alternate daycare that would allow her to attend work on April 24th. - 3 - [5] The grievor advised the employer that if her husband stayed home to care for the sick child, he would not have been paid by his employer, and that no family or friends were available. On the night of April 23rd she was hoping her son would have recovered sufficiently by morning to be able to go to daycare, but he was still too ill. By then, there was no time to arrange for anyone else to care for him. [6] Following this discussion, the employer initially denied the grievor’s request for special and compassionate leave for both days. However, subsequently approval was given for the partial day absence on April 23rd. Thus, the dispute remaining is only about April 24th. [7] The parties are agreed that in exercising the employer’s discretion under article 49, the following principles apply. (1) The discretion must be exercised in good faith. (2) There must be a genuine exercise of discretion and not a mere application of rigid policy. (3) The circumstances of the particular request must be considered. (4) all relevant facts must be considered and irrelevant facts should not be considered. [8] The union argued that the employer did not meet criterion 4 above. It was argued that the possibility of the grievor’s husband, family or friends caring for her child, and availability of vacation credits to cover her absence, were irrelevant considerations. It was submitted that the employer’s suggestion to the grievor that she should use vacation to cover the absence was not only an irrelevant consideration, it was contrary to article 49.2. [9] The union submitted that when the child fell ill on the afternoon of April 23rd, the grievor cared for him expecting him to sufficiently improve by next morning to be able to go to daycare. It was on the morning of the 24th of April that she realized that her son was still too sick to go to daycare. She had a sick 15 month old child to deal with. This constituted an emergency or an extenuating circumstance as referred to in the Board’s case law. At that point of time it was not possible to make reasonable alternate daycare for the sick child. Distinguishing the case law where the Board dismissed grievances - 4 - under article 49, it was submitted that unlike in those cases, here the absence was not planned in advance nor was it foreseeable. [10] The employer submitted that the questions put to the grievor and the employer’s suggestion to her that alternatives such as use of vacation or no pay leave were available were not inappropriate. That was done in accordance with the employer’s obligation to consider the particular circumstances of each request for leave. The grievor was asked the same type of questions the employer normally asks any employee seeking approval of special and compassionate leave, and there is no suggestion that the employer acted arbitrarily or in bad faith towards the grievor. Therefore, the Board should find that the information sought by the employer was relevant and reasonable. [11] In reply, the union submitted in the alternative that even if it was not improper for the employer to question about the availability of the husband, friends and family, the grievor’s response to the questioning was to the effect that none of those alternatives was available once she realized on the 24th April morning that the child was still too ill to go to daycare. The employer simply ignored that information. In any event, the availability of vacation credits or the possibility of taking no pay leave to cover the absences are clearly irrelevant considerations. [12] Having considered the facts and the submissions of the respective parties, the Board concludes that the employer did not exercise its discretion in accordance with its obligation under the collective agreement. There is nothing improper about giving consideration to availability of alternative childcare arrangements which would have reasonably allowed the grievor to attend work on the day in question. Those are not irrelevant considerations. However having asked the questions, the employer was also obligated to give proper consideration to the information the grievor provided in response. That information was to the effect that the husband, friends or family were not available options once she realized on the 24th morning that the child could not go to daycare. There is no assertion that this information provided by the grievor was false or inaccurate. This was relevant information. There is no indication as to what weight or consideration, if any, was given to it. - 5 - [13] More importantly, article 49.2 makes it very clear that the granting of special and compassionate leave is independent from accumulated credits. Whether or not the grievor had accumulated vacation credits at the time to cover her absence was completely irrelevant to the employer’s decision on whether or not to approve the leave under article 49. Article 49(2) indicates that the parties intended that subject to the limit of three days in a year, an employee should not be required to use accumulated credits, where a proper exercise of the employer’s discretion leads to the conclusion that special or compassionate grounds exist. For the same reason, the employer’s offer of leave without pay was also an improper and irrelevant consideration. This alone renders the employer’s exercise of discretion improper. [14] The Board upholds the grievance. The employer is directed to make the grievor whole for her loss resulting from its denial of leave under article 49 for her absence on April 24, 2014. Dated at Toronto, Ontario this 16th day of June 2015. Nimal Dissanayake, Vice-Chair