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HomeMy WebLinkAbout2014-2926.Duret.15-07-03 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#2014-2926 UNION#2014-0526-0241 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Duret) Union - and - The Crown in Right of Ontario (Ministry of Attorney General) Employer BEFORE Nimal Dissanayake Vice-Chair FOR THE UNION Seung Chi Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Kathryn DuBois Treasury Board Secretariat Centre for Employee Relations Employee Relations Advisor HEARING June 26, 2015 - 2 - Decision [1] A grievance dated August 14, 2014, filed by Ms. Marie-Paule Duret (“grievor”), Customer Service Representative, came before the Board pursuant to the mediation-arbitration process in article 22.16 of the collective agreement. The parties jointly requested that the Board hear the matter and rule on it. [2] Article 49.1 of the collective agreement provides: 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. [3] On July 17, 2014, the grievor made a written request for special/compassionate leave with pay for July 28, 2014 pursuant to article 49.1. She grieves the denial of that request. [4] The fundamental principles that have evolved from the Board`s jurisprudence are summarized in Re Thurman 0698/01 (Johnson) at paragraphs 17 and 18 as follows: 17 …. the employer must make a decision in good faith, free from arbitrariness and discrimination. The employer must exercise its discretion in a reasonable manner having regard to the individual merits of each case and not simply resort to a rigid application of policy. An effort must be made to obtain all the relevant facts prior to making a decision and management must endeavour to act consistently in similar cases. 18 In considering the decision of management, the appropriate standard of review to be applied by an arbitrator to the decision making process is that of reasonableness. An arbitrator should consider the reasonableness of the process that led up to the decision which was made by management. It is not my role to substitute my views for that of management or enter into an assessment of the correctness of the decision even if I might have come to a different conclusion (see in this regard Young and Ministry of Community and Social Services (1979). 24 L.A.C. (2d) 145 O’Brien and Ministry of Correctional Services. GSB #1157/86 (Gandz), Malyon and Ministry of Revenue GSB #1129/88 (Roberts), the Sahota case and the Elesie case.) - 3 - [5] The reason for the request for leave was set out by the grievor in an e-mail as “Each and every year I am taking my brother’s anniversary day to commemorate his death. My brother died from a boat accident in 2000. I have taken that day religiously as a compassionate leave with pay since that time”. [6] The union submits that the employer failed to comply with the requirement that it obtain and consider all relevant facts in exercising its discretion. The employer did meet with the grievor prior to denying the leave. At that meeting the employer questioned the grievor about the reasons she had set out in the e-mail. It was revealed that July 28, 2014, was not the anniversary date of her brother’s death. She wanted the day off on compassionate leave with pay so she could participate in a teleconference call with her father and a priest to plan a commemoration event. The employer’s records also indicated that in the past, the grievor had taken the day off on special/compassionate leave on different days, which further confirmed that there was no commemoration on July 28th. In denying the request the employer considered this additional information. [7] The union submits that at the meeting the employer did not seek relevant information such as what the purpose of the teleconference was, and why she needed the whole day off to participate in a call. It was also submitted that the employer did not provide its reasoning for denial or indicate what information it had relied on in deciding to deny the leave, and that this suggests the decision was made in an arbitrary manner, and not based on a consideration of all relevant facts. [8] Based on the undisputed facts, it is clear that the employer was aware that the request for leave was made to allow the grievor to participate in a teleconference to make arrangements for the commemoration of her brother’s death anniversary. The Board has held in Re Thurman (supra) at para. 23 that “nor is there a requirement for the decision maker to meet individually in every case with the employee making the request for special/compassionate leave”. In the instant case the employer did take the step of meeting with the grievor which - 4 - allowed her to elaborate on any special or compassionate grounds relating to her request. There was no need to question the grievor in any further detail than it did. The Board is satisfied that the employer had sufficient and relevant information and that its decision making process was reasonable. [9] At the time of conveying its decision to the employee, there is no legal obligation on the employer to explain its decision making process or to set out what facts it considered in arriving at the decision to deny the request for leave. The failure to do so is not a reasonable basis for inferring arbitrariness. However, the union advised that even after the filing of the grievance no information had been provided to it in that regard. The union has no legal entitlement to particulars or production until the grievance has been referred to arbitration. However, the Board encourages the practice of exchange of information at the earliest possible time following the filing of a grievance, since it would foster good labour relations and increase the chances of resolving grievances without the need for litigation. [10] For the foregoing reasons the grievance is hereby dismissed. Dated at Toronto, Ontario this 3rd day of July 2015. Nimal Dissanayake, Vice-Chair