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HomeMy WebLinkAbout1988-0257.Marcoux.89-04-03'~ · ONTAR/O EMPL OY-~'S D£ LA COURONNE " . CROWN EMPLOYEES DE L.'ONTARIO " ~"GRIEVANCE COMMISSION DE - SETTLEMENT REGLEMENT ,. BOARD DES GRIEFS I~0 DUNDAS STREET WEST, TORONTO, ONTAF~IO, M5G 1~8- SUITE2100 TELEPHONE/T£L~PHONE 180, RUE DUNDAS OUES~ TORONTO, (ONTARtO) MSG 1Z8 - BUREAU 2100 (416) 598-0~88 257/88 IN THE MATTER OF AN ARBITRATION Onder THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (M. Marcoux) Grievor - and - 3 The Crown in Right of Ontario (Ministry of Correctional Services) Employer Before:' D.H. Kates - Vice-Chairperson P. Klym - Member F. Collict' - Member APPEARING FOR S. Ballantyne TBE GRIEVOR: Counsel Cavalluzzo, Hayes' & Lennon Barristers & Solicitors APPEARING FOR C. Slater THE EMPLOYER: Senior Counsel Human Resources Secretariat Management Board of Cabinet HEARING: December 7, 1988 DecisiOn In this grievance the grievor has complained that the employer improperly denied him two weeks special or compassionate leave with pay contrary to Article 30.1 of the collective agreement. Article 30.1 reads ms follows: ARTICLE ~0 - LEAVE - SPECIAL 30.1 Leave-of-absence with pay mm~ be ~rmnted for special or compassionmte purposes to mn employee for a period {a) not more than six (6) months with the app~ovml of his Deput~ Minister; mhd (b) over six (5) months upon %he certificate of the Commission a[~d with the approval of the Lieutenant Governor in Council. The facts precipitating this dispute are straightforward and non-controversial. The grievor is employed as a Corrections O]fficer (CO2) at the Maplehurs% Correctional facility. At all material times he was a f~thex' of three children and whose spouse was expecting the family's fourth child on or about January 5~ 1988. The grievor was advised that because of anticipated complications arising~ out of his wife's pregnancy the birthi~g exper:ience as well as the subsequent recovery period would necess'} kate a longer stay aL Lhe hospital. Moreover, because of the longer recovery period the grievor also anticipated thal~ his wife~ particularly with the additional sibling, would require his assistance at h(~me once she was r~leased from the hospital. We were told that the grievor's situation did not constitute ~n urgent circumstance albeit he had. reason to be apprehensive. The grievor had recently taken up residence in a rural community where his neighbours lived some distance away and were strangers to the ['ami[y. Ile indicated that for that reason he could not count on their assistance in the event his wife's predica]nent required i{nmediate~attention. Moreover, in the past he relied upon the assistance of close relatives to help his ~ife ~hile he Kttended to his work responsibilities, lie could no longer rely upon their help'b~cause of the change of residence. Moreover,. the grievor indicated that because of the cost he could not af£ord the expense of hiring assistance. In any event, he felt it ~as important tha~ his family should be looked after by familiar persons during the obvious adjustment period that followed the birth. It was also clear that the grievor sought to reduce the disruption caused '5o his family arising out of the birthing experience, [{e ['elt this would be achieved by virtue of his continued presence at home or at the hospital for ,in approximate 'two week peri, od. The grievor in his own mind concluded that his circumstance was an apt situation where the benefi'ts provided under Article 30.1 of the collective agreement for special or compassionate leave with pay ~or that two week period ought 'to be granted. To this end he submitted 'to the Deputy Minister the necessary application form supported by the following document dated December 1, 1987 outlining his situation: To the Deputy Minister Mr. Robert M.-McDonald 'It would b(; appreciated if serious consideration be given to my situation. If possible could two weeks leave with pay be granted for 'the following reasons, My wife is to give birth to our fourth child. The due date is January 5, 1988. On this occasion there is not any help available for any length of time to take care of my family during my wife's absence which should be about one week. We have one pre-schoo]er and two going to school[. We have moved to a new rural area and can~ot rely on the few neighbors, who we have not yet met. My wife is having a harder time with this pregnancy compared to the previous three. There is the worry of an ~emergency beore and after the birth. After the birth an eme'rgenoy could prove serious because we have one vehicle. My wife would be stranded until help arrived. Al. so the demands on my wife would be too great with me ~t work and the other three children at home. This brings the request for the second week of le~ve~ so my assistance would readi].y be availab~Le. The exact two weeks needed will be given to you at the earliest possible moment. Thank you for your consideration "Michael Marcoux" Mr. David A. Parker occupied the office of Regional Director, Centra.[ Division, responsible for the administration of the employer's correci;iona] facilities within that geographic 'jurisdiction. fle was delegaLed the authority Lo act on behalf of the ])ei)uty Minister in the Ministry~s dealing with the merits of the grievor's application for special leave with pay. Before embarking upon a description of the considerations weighed by Mr. Parker that impelled him to deny the grievor's application for special and/or compassionate leave with pay it is appropriate at this 3uncture to ret'leer on the limits of this Board's review powers "to second guess" the Ministry's decision. In 'that regard 'there appeared a concensus between the par~ies with respect to the parameters of our jurisdiction or competence ~o overruJ, e the employer's decision. In cases suczh as I:he grievor~s complaint the Board does not sit in appeal of the employer's decision. There is contained no Ianguage in Article 30.1 such as "such leave shall not unreasonabl, y be withheld" or the like that would confer upon this tribunal the authority ~o intrude upon the employer's discretion (ie., "may',') to dispose of such applications as it deems appropriate. In ol;her words, whether ~e agree or disagree with the employer's decision to deny the grievor leave with pay is an .i_rcelevant (zonsideration in our review of its decision. What is of utmos~ significance to our jurisdiction is the issue o~' ~hether the employer's decision was "fair". That is to say~ ~e must be satisfied I:hat the employer did not act in '~an arbitrary, disc~[minatory or i.n a bad faith manner" in its handling of the grJevor~s application. In simple terms our concern 'is .Iisi ted to a review o'f i;he decision making process adopted by the employer in reaching 'the conclusion to reject. In 'that regard, a concensus was expressed indicating that the criteria for testing the fairness of the employer's decision making proc. ess is best described in the GSB precedents dealing wi. th like applicat:ions for short term special leave with pay under Artic_l.e 55..1 of the collective agreement. We were referred specifically to the decision :in Re OPSEU (beget & Legacy) and The Crown in Right of Ontario (Ministry of Cor~'ectionai Services (05067-7i8.7~ decision dated June l, 1988 (Dissanayake) where the criteria for the proper exercise of the employer's discretion is spelled out at page 9: l) The decision must be made in good faith and without discrimination. 2) :It must be a genuine exercise of discretionary power, as opposed to rigid policy adherence. 3) Consideration must be given to the merits of the individual application under review. 4) Ali relevant facts must be considered and conversely irrelevant co~,s.ideration must be rejected. Mr. Parker i~dica%ed that he made the decision to deny on the basis of the facts described 'to him in the document (hithert° referred 'to) that accompanied the griever's application form. In having regard to that information the decision was based on three general factors. 'The first suggested that although the griever had reason to feel "apprehensi. ve" .about his family situation he was not convinced it represented an emergency or sufficiently-urgent circumstance to warrant granting leave with pay. The second factor indicated that the griever's predicament albeit sympathetic was not "extraordinary" in the sense 'that it warranted the special considerations anticipated by the special leave with pay provision. And~ ['ina].ly, "the third factor that was applied to the griever's situation was "whether there existed any other way to accommodate his request for a two week absence from work" other 'than by special leave with pay. To this end the employer concluded that vacation leave (with pay) or simply leave without pay for the required pe~'~od would be granted the griever should he request it. It ks uommon ground that Mr. Parker exhibited a sincere concern for the g'rievor's pi'edicament and in good faith wanted 'Lo aect)mmodaLe his request to be w~th his ~:it~e and family during this adjustmerit period. In that sense the employer ~as able to rearrange its sork force at the ~aplehurst Correctional facili'ty to permit coverage of:' the grievor"s si~ifts should he elect to take vacation leave or ]cave without pay. ].t is also common ground that the gri. evor upon lcar~i, ng of hi.s rejected application chose Lo take vacation leave wi th pay. ltis grievan(:e alleging violatkon ct~ his entitlements under Article 30.1 requests a direction of this tribunal reinstating those vacation leave credits spent for a purpose he c].~ims special lea~e would have provided a more appropriate employer pesponse. The letter denying the grievor's applicaLion for special leave reads as follows' Dear Mr. Marcoux: Thank you for your letter of l)ecembe~ 1, 1987, addressed, to M~. Rob~t MacDonald, Deputy Minister. As the approval of such requests is delegated to Regional Directors~ your letter was forwarded to me for response. F~om ~he circumstances outlined in your letter, I can appreciate why you would want 'time to be with you~ wife and children. However, it would be quite i~appropriate to approve a leave of absence with pay for this purpose. I would suggest you apply for vacation credits, fo~ which you are entitled on January 1, 1988, or alternate]y~ submit a request for a leave of absence without pay. Thank you for b~inging your concerns to my attention. Yours truly, "David A. Parker" Regional Director Central Region The uncontr~dicted evidence demonstrated that Mr. Parker's treatment of 'the grievor's application sa'tisfJ, ed the general concern that the Ministry's decision be made in good faith and without discriminal:ion. Indeed, in referring specifically to the criteria for the proper exercise of the employer's discretion, as hitherto described, the trade union's sole complaint with respect to Mr. Parker's decision making focused on paragraph 4. That is to say~ the allegation was made that the Ministry a~d Mr'. P~rker, particu]ar].y, either considered oxtrar~eous or ir~-elevant :information in I'e:~ch_i. ng his decision to reject or, a[t;er:n~xti, veiy, fail.~-~d to proper'ly inform himself with ['{~spect to the v~].id:i, ty ()r otherwise c~f the considerations Lhat wcr~-~ applied. And, should those specifi(x allegations be proven th(~re appeared agreeme~t thai; that par't:i, cular aberration would suffice 'to vitiate or nu].[ify the employer's decision. In that light i.t is somewhat important that our particular trea%ment of the trad.e union's allegations with respect to a breach o[' pat'agrt~ph 4 be described, in our view it does not suf.fice ~or the 'trade union to simply allege that the Ministry considered extraneous or irrelevant information in reaching the conclusion to re,)ect, I't must do more. NoL only must it est:~blish ~he forego:i}~g but it must demonstrate 'that the impugned considerafions, once proven, had a material and/or an ~dverse impact., o~ the emp].oyer's conclusion 'to deny. In other words, it may very well be that the Ministry's decision was the correct one, from the perspective of fairness, even though it is Shown that considerations in reaching its decision were not necessarily germane to Lhe application, i~' it cannot be shown that those considerations adversely impacted on.the result o.r there existed a probability that tile result alight very well have been different if 'those considerations were not .applied then the onus of sagisfying us of a violation of Article 30.1 of the collective agreement will no't have been met. ]in summary we are o~' tile opinion that° the allegation advanced with respect to a breach of paragraph 4 i.s .ecessarily a two step process where the onus rests with the trade union to show in a demonstrable. way a breach of the standard of fairness expected of the employer in treating appl. ications of this nature. The trade union suggested tha5 Lhe Deputy Minister through i. ts des:ignee, Mc. Parker, violated those norms in applying each of 'the three factors that impelled him to deny the grievor's appl. Jcation. 'rile balance of this' decision will therefore involve a description oF those concerns and the result that should roi. low w:ith ~.eSpec't to each of them. [n his evidence Mr. Parker indicated that because he was not convinced that the grievor's circumstance represented an emergency ~':iccumstance he was not disposed to favour granting \ the grievor his request'., Although he sympathised with the grievor's dilemma he, nonetheless, surmised, that mere apprehensiveness abou't his spouse's fate was not enough. Indeed, the concerns at'tached to the birth of a child, whether or no't based o~ medical reasons, are common to ali parents who have gone through the experience. 'rile trade union alleges that Mr. Parker placed undue emphasis on the consideration that there must be "an emergency" situation (which the trade union concedes did not exist) before the Ministry's dis'cretion might be exercised in a positive way. And several GSB precedents with respect 'Lo allegations of a breach of Article 55 were referred to us to indicate that the ~.'equirement that an emergency be shown is a patently irrelevant consideration. [~ the one case in Re OPSEU (Ford) and The Crown in Right of On~ariq (1528/87) decision dated August 24, 1988 (Wilson), the grievor was denied special or compassionate le~ve in order to attend to his child while undergoing surgery because the operation was prearranged or'preplanned. The employer's answer suggested that on.[y surgical procedures carried out in an emergency si.tuatio~ wou].d pr~mpt a positiwe.- response. The Board determined that appli¢~ation for' "special ,~nd compassionate" leave ought not necessarily exclude a prearranged or prescheduled event. .In other words, the concern for an emergency situat.ion ought not to be seen as the sole cons[de.ration to the extent 'that .it impinges upon the employer's judgment as to whether the circumstance was a special or compassionate case. in 'a like situation in Re OPSEU. (Chow) and The Crown in Right of Ontario (2004/86) decision dated July 12, 1988 (Forbes-Roberts) a parent was required to stay home and attend to a child who was ill. Ministry policy dictated that leave only be granted in the circumstances of a sick child where the child had been hospitalized, The employer applied that policy without investiga~:ing further the particular circumstances of - 10 - the grievor's situation. The implicit consideration that underlined Ministry policy a'ppeared 'to sugges't that only hospitalization might create the emergency situation that would result in a favourable response. The arbitrator determined that the employer's discretion was too rigidly fettered by virtue of its sl.~vish adherence to itu policy. In the situation before us we do not hold that Mr. Parker's opinion 'that the grievo~'s situation did not constitute "mn emergency" blurred or unnecessarily restricted his discretion in the sense suggested in the foregoing precedents. ~'t is clear to us ~ha% the existence of an emergency situation is a more than relevant consideration as Lo whe-ther ~n application for special or {zumpass]on;~te I~ave should be granted. Indeed, that factor, if established to the employer's satisfaction, might be dispositive in reaching a favourable ~esponse granting the application (see I{e OPSEU (Elgie) and The Crown in Right of Ont~rio (24/79) decision dated October 1, 1980 (Swinton)). What the cases suggest is that the fact that no emergency situation exists does not necessarily or always mean that the application otherwise has no merit. That factor cannot represent the overriding consideration to the exclusion of other relevant considerations' that might 'very well justify a positive response. The employer t~hereby vioiates its duty of fairness in the exercise of its 3udgement when it commits the error of placing undue emphasis on simply the one factor, namely~ whether a'n emergency existed. Mr. Parker committed no such breach in his treatment oi' the g}ievor's application. And this point is amply.demonstraLed in h'is consideration of the second factor. .in that regard Mr. ParRer ~nLaLed thaL he consulLed wiLh the HinisLry's Personnel Department to secure their advice, lie was informed that there existed no precedent where the Hinistry (or any other Ministry) had granted special[ and compassionate leave in similar circumstances, ile thereby concluded, that the situation described in the griever's a~plication was not "extraordinary". That is to say, he concluded that the griever's particular circumstance was not "special" in the sense that his own persona], sympathies towards his situation should not interere with his duty 'to act in the employer's best interests. Accordingly, he repeated on several occasions during the course of his cross-examination ·that the griever's situation simply w~s not "extraordinary" t° the extent Lhat special or compassionate grounds existed ~or grail ting leave with pay. Thc· trade union's complaint with respec't to that response was that Mr. Parker's source of information was too superficial to warrant the conclusion that the griever's dilemma was not extraordinary. It was suggested that Mr. Parker had to do more in the way of investigation to support 'that particular conclusion. Theft is to say, tie had to determine or quantify specific instances where employees in a rural (ie., isolated) (.~'ommuni(;y are required to absent themselves From work because of the birth, in pote~tia].iy trying circumstances, of a fourth child. When the Board asked the trade union's couI~sel what she expected Mr. Parker to do (other than investigate the employer's - 12- personnel, records) to satisfy the st:andard 'for int'orming himself, she could provide no reasonabl, e response. ~e surmJ, sed l:hat, from her ['allure to provide a reasonable and prac[i, caI response to that question that no additional steps could have been taken to support his conclusion. For example, ~e asked counsel ~heLher ~r. Parker ~ould be required to conduct a survey or a nensus in the community ~here l:he grievor resided Jn order l;o sat[sl'y the standard for properly testing the conclusion that Mr. ~areoux's situation was no't "exl. raordi, nary", qui. te clearly, it appeared to' us that what we were in fact being asked by the trade union Lo find was that the gri. evor's si'LuaLion ~as per se "extraordinary". It thereby sugges/ed that the onus rested sith the employer Lo demonstrate the contrary, ~e are satisfied that Er. Parker in addressing himself specifiedlly to the grievor's situation as outlined in his supporting memorandum and in scour:lng the advice of members of the ~inisLry's Personnel Department did exactly ~hat sould be expect:ed of a Sanager delegated [he responsibility for admin:i, sEeri, ng Elm spec:[al leave provision. ~e would find it highl, y :imprac~i. eal for the empl. oyer [o do more in the way of testing its conclusion such as in conducting a census in order Lo support t, he val. idity or its decision [o deny. Soreover~ it t. he ~rade union J.s suggesting that the grievor's s:i.i, uation ~as per se e~traordinary (and ~ould thereby explai_n the absence of like or si~ilar gini. stry precedents) then se uould have t:o con(:lude [hal Sr. Parker simp].y made t~is - 13 - decision on the best evidence that was available to him. For the Board to otherwise disagree with Mr. Parker's conclusion .~.hat the grievor's situation was not extraordinary would simply constitute the substitution of our opinion for the employer's. And, as both parties have agreed our acting as an appeal body to the MJnis'try's conclusi~n is exactly what we are precluded from do ing. Finally, the third factor considered or weighed by Mr. Park~r in reaching' the conclusion to deny the application for special heave pertained to the issue of whether there existed "~nother means for accommodating" the grievor's request. Quite frankly, it is this 'third factor that has proven most troublesome to the Board in assessing the "'fairness" of the employer's decision ms defined by paragraph 4 of the guidelines. Before explaining our concern it is relevant that we communicate our appreci~t~on of what Mr. Parker meant in his reference to the third factor. He stated that he asked himself whether the grievor's objective or purpose in remaining with his family during the birth of their fourth child and thereafter could be achieved by his making ~ request for vacation leave (for which credits wou].d have Lo be borrowed from his 1988 entitlement) or by means of an application for leave without pay which the employer would be disposed to grant. Common to both these responses, of course, is the implicit suggestion that the Ministry was prepay-ed to accommodate the grievor in his wanting to be with his family provided i't was not at the employer's expense. And in that regard it is clear that Article 30.1 - 14 - expressly contemplates, provided the employer is satisfied that a case for special or compassionate leave has been established, that such leave will be with pay. Accordingly, i't is incumbent upon us to explore the relevance that. should be attached to the ~inistry's disposikion to accommodate the grievor's request for special leave under Art'icle 30.1 of the collective agreement by asking itself ~he~her the same objective could be achieved by leave ~i~hout pay or by leave at the expense of the grievor's vaca~i, on leave credits. The employee conceded ~hat the factor of granting vacation leave or leave ~ithout pay ~as a consideration in ~r. Parker's decision to deny the grievor's application, l[ did not, for example~ argue, as it migh~ have, tha~ firs'51y ~r. Parker made a bona fide decision to deny special leave on the merits of ~he application. And 5hen because ~r. Paker represented a decent a~d humane employer he sought to accommodate ~r. ~arcoux's desire to be ~ith hi_s family in the sympa[he~ic circumstances Lhat ~ere described by altcrnaSive means, Indeed, ~r, Parker's le[ter rejecting the grievor's application for leave sith pay appeared to indicate such a sequence in his deci. si0n making, Bu~ ~his ~as not l:he case. Rather~ ~e ~ere ~old by the employer's counsel ~:hai; 5he availabiliSy of other n~eans such as access ~o unused vacation J. eaw~ credits represented a legitimate considerat;ion -iLh respect to ~he ~erits of 5he grievor~s applicaLion for leave ~ith pay. Or, ~ore succinctly, the existentze of "other means" represented a significant factor in the employer's conclusion of ~hether special or compassionate - 15- grounds for leave with pay should be granted. Moreover, the employer referred us to several GSB precedent where much ~.:o~skderations appear ko have been endorsed. For example~ in Re OPS_EU (Stewart) amd Crown in Right of Ontario, MinistrLof .Transportation and Communications (211/78) decision dated February 9, 1981 (Swinton), the grievor requested mpecial leave with pay under Article 55.1 to attend a tonsillectomy :,operation 'to be performed on her son. The employer denied the appli, cation holding that she had available to her vagation credits that could be used for 'that purpose. The grievor used the vacation credits and sought their reinstatement alleging violation by ~he employer of its obligation to consider her application fairly. The appl:~ca.tion for special leave was made under the predecessor provisions of Article 55(1). Since the facts of the case there under consideration occurred an addition to Article 55(1) (then Article i6(1)) has been introduced to 'the collective agreement. Both Article 55(1) and 55(2) read as follows: 55,1 A Deputy Minister or bis 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, 55.2 The grantJ, ng of leave under this Article shall not be dependent upor~ or cha['ged against accumulated credits. In that case the arb:itrator determined that the employer's consideration of the availability of vacation leave credits was a relevant Cact0r :in denying the ~grievor's application for special leave ~i. th pay. Her rationale for reaching this conclusion should, be set out in its entirety at pages 5-8: I~: was argued, on the gr~evo~'s behalf, that an employee earns vacation credits, and those credits should be left to the discretion of the employee as to method of disposition. Therefore, an employer should not require the employee to use vacation credits in compassionate circumstances, and in refusing compassionate leave on the ground that vacation credits were available, the employer acted unreasonably. In assessing the weight of the griever's argument, it is important to consider the purpose of a compassionate leave article, as well as expectations with regard to compassionate leave which appear to have exJ_sted in thc public service arid in ct_her employment settings, Compassionate leave provisions are included in a collective agreement in order to protect an employee confronted by personal emergencies or crises, who needs time off to deal with theme personal problems. In an industrial setting, it i_s commonplace for the colIec'tive a_.g_reement to permit compassionate leave, but without tLa_~. In contrast, the collective agreement in the present case provides f~or compassionate leave with pay. Where comDassiouate leave ma.y be granted without pay, it is no doubt beneficial for an em]~3o.y__ee when his or her employer .permits the em~%_oyee to use vacation credits for th_~e~ leave pe~r._i. 9~.~_..~ra~e_r___t.~!~n~._t__o__g_r.ant compa_ssiona-te leave without_Day_. ~Sp_c_h___a___d._e_c_ision would surely not be regarded as unreasonable. This op__t_ion may not alw__a3s be open, for i~ some cases, as in R.1._ants wi_t~h__a__n__a_pnual shutdown period for y_~acation_, it may not__ be possible to .g_ive the employee the opport_unity to use vacation credits~ even %_f g_.ranted the compassionate leave. Therefore, he_ pr she m_a_y_ be~___.granted .compassionate leave despite the existence of vacation credits - but without_~. The collective agreement between OPSEU and the Ontario government is unusual ii1 that it provides for compassiona'te leave with pay." This raises the question whether the employer acts unreasonably in considering the existence of vacatio~ credits. For reasons which follow, we are not prepared to find that this payment p~ovision has the effect of making the employer's action unreasonable, if the employer looks to the existence.of vacation credits when the employee seeks such leave. ~_:_h_~___i__s~ug_fg_r.__t_~!.e_._~mp. to_~er~iD__.w_h~e_~thB_r L_he e__~m~p_!_o_z.ee is ~d_e_s_s_e_r_v__]_'.:~.%g' of leave to deal wi.th compass_ion~_ or__~sR._e._c.i.~l~.. circumstances. .tn a case like the present, the employee has vacation available and there is not disruption of established vacation plans if leave under Article ]6.1 is refused. If the aP]ever is allowed to schedule her vacation to coincide with the dates for which leave .i.s sought, she can be with her son, and there is no need to resort to Article 16.1. In interpretir~g Article 16.It_we would assume that the parties t_.when drafting the collective agreement~ were aware of the .general practice in industrial setting~ with regard to compassionetLe leave~.__w_..h_~.,_r~e ~e__mp_..19.y. ers often allow or required the _e_m_p_/_p_..~__e_e to use vacation credits, rather tha~L_grant _c_.._o._m/~assionate leave. Ap well, the~_~ar'ties must have been aware p_f the practice, in the Ontario government, in which qp_m~assionate leave was generally denied if vacati_gB_.qredits were available. If the parties wished to ch___a_qge these expectations and .'to limit the discretion of the employer to consider the existence of vacation credits in compassionate leave situations, they would have to do so by clea~er language than is found in Article 16.1. Mr. Pettifor did, in fact, point to language in a collective agreement subsequent to :%hat in which Article 16.1 is found. Article 54.2 of the present collective agreement {signed July 16, 1980 - Exhibit 6) expressly states that granting of compassionate leave "shall not be dependent upon or charged against accumulated credits". IIe argued tha5 the absence of such clause in earlier agreemen%s vindicated the employer in looking to vacation credits before granting compassionate leave. The existence of Article 54.2 in the subsequen~ agreement is not conclusive evidence that vacation credits were a relevant consideration for management in ~n earlier agreement. It might well be argued for the union that Article 54.Z is included for cautionary reas()ns~ to clarify and settle a possible point of dispute in ear]~ier collective agreements which had not yet been reso].w~d by arbitrat:ion. Therefore, the inferences to be drawn from the inclusion of Article 54.2 in the collective agreement are ambiguous. However, looking at Article lS.~ in the broader industrial context and in ~he light of the understanding which must have grown out of past government policy with regard to compassionate leave, we are not prepared to say that management acts unreas(~nably when it looks to the existence of vacation credits in deciding whether t0 grant compassionate leave. Furthermore~ in this particular case, it did not act unreasonably in denying compassionate leave to the grievor when she had vacation credits existing and no fixed plans for vacation at the time, such as a charter ~light already paid for. The grievor was given time off to be with her son~ even though her vacation was somewhat shortened, and therefore~ her request for leave was not unreasonably denied. The dissent written by Collom indicates' I disser~t. If the employer wishes to confer a benefit upon the employee and does not make such a benefit conditional but~ rather~ discretionary~then I fail to see why the accumulation of one benefit ~wacation) should determine whet~er an empl~ee can 9xercise her rig.hts under Article 16.1. Unless the expresq_ language of Article 16.1 were t~provide the conditions under which compassionate or special l~ave were to be g.E~B~ I do not see how it is pU~_sible to reach such an understanding into this article. The Article simply turns on 'the discretionary powers of the Deputy Minister or his designee to grant the leave or not to grant the leave. To argue that the request for leave was not for compassionate reasons is Lo give the word a meaning that connotes a 'time frame. It would appear that the employee in this instance has made a "mistake" in requesting leave well in advance of the circumstances that might otherwise have given the meaning the employer attaches to the word "compassionate", notwithstanding the existence of vacation credits. Since the employer did grant this employee 'time off, albeit without pay, the employer has explicitly acknow].edged that the circumstances for which the time off was taken warranted such a request and, feel, :implicitly acknowledges the compassionate nature of the request. To argue otherwise is to admit that the existence of vacation credits had to be a condition precedent before such a request would be granted,' To tut'n to the private sector is of' little help here. The employee taking leave for'compassionate reasons in the private sector and using vacation credits does not realize any net gain but, rather, simply transfers a benefit, ~n effect, the compassionate leave may be with [)ay but only with a commensurate reduction i.n vacation credits, The situation is, of course, d].fferent in industries that have a vacation shutdown, However, the public sector does grant leave with pay and does not shutdown for vacation periods. I would have allowed the grievance. '"F. Collom" / emphasis added In having regard to the above decision we must with the utmost respect depart company with the majority opinion. If we properly understand the majority's reasoning two employees in similar circumstances may very well make out a prima facie case for special or compassionate leave with pay. However, the only distinction between the one employee and the other is the existence of a bank of vacation leave credits to cover the period of the absence. Where both employees have made out a case for special leave with pay the employer might be disposed to grant the employee without vacation leave credits the benefit wfth pay whereas the employee with vacation leave credit would - 19 - be required to use those credits. It seems 'to us that that would represent a frivolous result unintended by the special leave provisions of 'the collective agreement irrespective of whe'ther the application is made pursuant to Article 55(1) or Article 30(1) of the col]ective.agreement. And, in our view, we ,lust expr.ess our agreement with the dissenting 3udgment where the notion was expressed that the practice in the industrial (ie., private) sector has absolutely no relevance to the administration of a defined benefit or entitlement under the instant collective agreement. It ~s true that Article 55(2) attempts to obviate the adverse impac't that the availability of other credits such as vacation leave may have on the disposition of an application by not making the employer's decision to grant leave with pay "dependent upon.or charged against accumulated credits". Although Article 30(1) has no such limiting provision we are still of the opinion that the availability of vacation leave or other credits is an extraneous consideration in the em'ployer's decision to grant in otherwise appropriate circumstances special leave wi th pay.. Our rationale for arriving at {his conclusion requires explanation. Attic;lc 30.1 clearly requires the employer when special and compassionate grounds are demonstrated to grant leave with pay. It does not express the notion that, when such grounds are satisfied that leave without pay should be considered or, that alter~atively, vacation leave credits must be ~pp~ied first. Article 30.1 of the collective agreement in explicit 'terms requires payment for the duration of the leave provided the employer has been satisfied of the special or compassionate grounds. Leave with ;)ay in special and compassionate circumstances is contemplated under Article 30(1) and such leave with pay may represent an exorbitant cost to the employer. That is why in our view such applications for special or compassionate leave with pay in excess of three days but not more than six months are to be decided b~ 'the Deput~ Minister. Moreover, leave with pay in excess of six months are to be decided "by the Commission and with the approval of 'the Lieutenant Governor in Cour~cil". In summary, decisions with respect to such leaves of absence under Article 30.1 contemplate that exorbitant sums might be entailed m't the employer's expense and therefore only officials at 'the highest levels of the employer's bureaucracy are authorized to make these decisions in order that they may be held accountable. Moreover, whether or not the same ob3ective ma3 be achieved at the employee's expense through the use of unused vacation leave credits represents an extraneous consideration in the disposition of the application for the benefits designed in appropriate circumstances to be at the employer's expense. lin other w°~ds, it is clear to us ~hat because vast amounts may very well be incurred by the employer in appropriate cases, it is not contempla'ted that an employee's own financial resources are intended to be a relevant consideration whether ~hey be expressed i~ terms of vacation leave credits or in any other manner. For example, would it be relevant for the employer to refuse leave with pay in an otherwise appropriate circumstance because the amounts in an employee's bank account would enmble the employee to defray the costs of the leave without employer assistance? Without meaning to appear absurd we view the employer's consideration of an employee's bank of accumulated vacation leave credits as an irrelevant factor in the same light. Our reasons for objecting to the employer's submissions (and the case precedent in support thereof) is quite simple, The availability of vacation leave credits is clearly an extraneous consideration 'to whether an employee hms established the special or compassionate grounds for leave with pay. For example, if an employee is legitimately sick and applies for sick leave with pay when absent from work the employer would clearly have violated its obligation under the collective agreement in refusing to grant the application because of the availability of vacation leave credits that could be used for that purpose. In a like manner an employee who establishes a legitimate case for special leave with pay ought not to have his application' ' compromised because he has available the use of vacation leave. It is a commonly accepted proposition that vacation leave represents ;xn earned benefit intended to be granted annually at the employ'er's expense in order to enbable employees to refresh themselves for a short period through rest and recreation so 'that on their return to work they might continue to make a productive contribution to the work place. - 22 - It seems to us the availability of special leave pursuant to Article 30.1 could be argued as means intended by the parties to prevent employees from .exhausting their vacation leave credits on matters of personal urgency requiring employees to absent themselves for protracted periods. In other words, unlike the rationale in the previous GSB decision~ whether or not there is available other means for providing coverage designed to fit one particular circumstance (ie. vacation) could not represent a dispos:[tive consideration in 'the exercise by the employer of its responsibility to consider only relevant factors in deciding the merits of an application for special leave with pay. The truth of thc matter is ~.ha't in 'the grievor's situation he had no accumulated vacation credits, lie was given the choice in accordance with Mr. Parker's formula for accommodating the grievor "by other means" of borrowing vacation leave or of taking leave without pay. And this factor appears to have been relied upon as'a major consideration in denying the application because the employer simply did not want to incur the cost of' granting the grievor leave with pay, We do not say that the expense of granting special leave with pay is not a significant consideration in whether or not an application merits a positive response, For example~ an employee may very well satisfy the employer of special grounds for leave with pay but it may still question the duration of the leave, The employer would be perfectly within the bounds of propriety in abridging the period of the requested leave (for obvious cost related reasons) because it }]as. not been convinced of the grounds, - 23 - Underlying the cost considerations for denying the grievor his application for leave with pay were several other concerns that were expressed by counsel during the course of their argument. For example, it was suggested that the granting of leave in the grievor's circumstance would establish a "precedent" where in future the e~PloYer would be placed in the invidious position oF being compelled to look favourably on such applications. Or, alternatively, the concern was expressed that Article 30.1 would be viewed as a paternity leave benefit that would open the gates to a flood of applications for that purpose. In o~iher words, the fear was expressed that the employer would have an expensive employee benefit foisted upon it that was not contemplated by the special and compassionate leave provisions of the collective agreement. In our view such concerns are ill founded. The only precedent that this decision might represent is the notion that the employer is duty bound to address itself to relevant considerations when deciding the issue of whether or not to grant special leave with pay. Indeed, should this grievance succeed it would be manifestly wrpng for the result to be interpreted as an indirect means applied by the union in achieving paternity leave. As Mr. Parker indicated applications for special leave must be decided by the employer on a case by case basis. For example, it is not without relevance to note that the grievor was granted leave with pay to attend the birth of his child. So long as there is no violation of the guidelines for "fairness" in reaching its decision the employer - 24 - has no real reason to fear for future purposes of being corrected in this case. Because we have concluded that the employer's recourse to an irrelevant factor in denying the grievor's application, namely, whether there existed an alternate means of accommodating the grievor without cost to the employer, it is significant for us to ask whether that aberration would have had any bearing on the employer's ultimate decision~ And to repeat, it may very well be that extraneous matters might have been considered by the Ministry but without having adversely affected the result. If that were the case then we would have no grounds for interfering with the Ministry's decision to reject. Mr. Parker indicated as hitherto described that he concluded that no "extraordinary circumstance" had been disclosed that would prompt him to grant special leave with pay. We have also found that Mr. Parker acted properly in reaching that result. We have also suggested that had Mr. Parker ended his inquiry into the merits of the application at 'that specific point in the decision making process 'then the trade union, in our view, would [lave no further cause for complaint. Nonetheless, Mr. Parker did consider a third factor which'we have found to be irrelevant and extraneous to the merits of whether the application should or should not have been granted. And the issue of.whether that mistake, however inadvertant, impacted on Mr. Parker's decision to reject must be gleaned from his own statements made in response to the counsel's cross- examination. Mr. Parker was asked on numerous occasions whether his treatment of the griev°r's situation would have been any different had the grievor not had vacation leave credits available to him or presumably if he would not have been in a position to borrow the vacation credits. In other words, he was asked whether he might have,granted the application for special leave with pay had vacation leave or leave without pay not been made alternative means of accommodating his request. In our opinion in order for 'the employer to have avoided .being held accountable in the grievor's circumstance for a violation of Article 30.1 there could only be one answer to that question. And that is, Mr. Parker should have stated that it would have made no difference. Unfortunately Mr. Parker did not give that answer. He said he did not know. He Complained that the question was hypothe'tical. He suggested that each application would have to be decided on a case to case basis. In other words, he left the door open to a positive response to the grievor's application for special leave. in fact the question put to him was neither a hypothetical nor an academic situation, lie was asked specifically whether if, in the grievor~n case~ tie removed the third factor from his mental consideration would he have reached the same result. And it is our opinion that when he suggested "he did not know" we are compelled to conclude that the third factor on the balance of probability had a meaningful impact upon the result that followed. - 26 - Accordingly, we find as alleged that the employer violated Article 30.1 in failing to consider the griever's application for special leave "fairly" in the sense that an extraneous and irrelevant consideration contrary to paragraph 4 of the guidelines constituted a signfiicant factor in the outcome. The employer argued that in the event we should hold in favour of the griever we should remit the issue back to the employer in order that it reach a proper conclusion once having~b~e.en given the opportunity to oorree-t its mistake. / _,.~.~_,~i,~ ~ ..... : The trade union referred us to severa~ ~rblt?~l precedents involving successful Section 55.1 grievances,~where the_Boa~d granted the specific remedy that was requested ~ ~ /~C., We do not intend to depart from those-~pr-e~dents in this case. The grlevanoe and arbitration procedures contemplated by the Legislation and the collective agreement here under consideration contemplate some finality to a dispute of this particular nature. We have discerned for that reason that no useful purpose will be served, given the evidence thmt we have heard, in remitting the matter back to the employer. ~ather} finality to this dispute dictates a direction ordering the employer to credit the griever's vacation leave account as requested in his ~rievance. In other words the grievance succeeds. We shall remain seized for the purpose of implementation. - 27 - Dated this day of February, 1989. · . ice-Chairperson  (Addendum / s attached) P. Klym - MemOer "I dissent" (Dissent attached) F. Collict - Member DISSENT RE: G.S.B. - ~257/88 (MARCO~}~ This Member is in'concurrence with the majority position in this case to the effect that the issue before the Board, as stated at page 4, is that " .... we must be satisfied that the employer did not act in 'an arbitrary, discriminatory or in a bad faith manner' in its handling of the griever's application." This Member also does not entirely protest the G.S.B. precedent criteria for the evaluation of the proper exercise of the employ- er's discretion'as set out at page 5 of the award, as follows: "(1) The decision must be made in good faith and without discrimination. (2) It must be a genuine exercise of discretionary power, as opposed to rigid policy adherence. (3) Consideration must be given tO the merits of the individual application under review. (4) All relevant facts must be considered and con- versely irrelevant consideration must be re- jected.'' The qualification that this Member does not entirely disagree with the above is predicated upon the contention that all members of management do not have the wisdom of Solomon nor a Ph.D. in Psy- chology, Science, Decision-Making~ etc. Hence, the standard of application associated with the above criteria must be based upon a certain degree of reasonableness. That .is, what decision would a reasonable manager reach, given a reasonable set of conditions - without being arbitrary, dis- criminatory, and without bad faith? These latter three factors must be read in conjunction with the 4 guidelines set out above. The guidelines are not absolute relative to the decision-making process. Very clearly then, the issue in the case and the criteria for the evaluation of the issue must be read together. And what do we have in the subject case? The majority award in this case summarized at P.24 that, " .... Mr. Parker did consider a third factor (the avail- ability of vacation credits) which we have found to be irrelevant and extraneous to the merits of whether the application (for leave with pay) should or should not have been granted. And the issue of whether that mis- take, however inadvertant, impacted on Mr. Parker's decision to reject must be gleaned from his own state- ments made in response to the counsel's cross examin- ation.'' The result of Mr. Parker's statement, so concludes the majority, resulted in the finding " .... that the employer violated Article 30.1 in failing to consider the grievor's application for special leave 'fairly' in the sense that an extraneous and irrelevant consideration contrary to paragraph 4 of the guidelines constituted a significant factor in the outcome." (P.26) and the majority was compelled to draw this cgnclusion based upon the contention that, " .... the third factor (consideration of vacation credits) on the balance of probability had a meaningful impact upon the result that followed." (P.25) This Member cannot support the above-conclusion. The issue presented to management by grievor Marcoux was whether or not he would be paid for the leave he requested. Any manager knows that there are alternative ways to "cover" time off with pay. Hence, it is impossible to disassociate the matter of alternative methods of payment for leave from the issue - and more importantly, from one's mind - if one is the individual called upon to make the decision in this case. Very clearly, the fact of having available vaction credits to cover the period of time off work has nothing to do with whether an applicant should or should not be granted special or com- passionate leave under the provisions of Article 30.1. However, the fact that these credits are available and can be used to provide income for leave taken without pay cannot be erased from the mind of the manager. Counsel for the Union asked witness Parker, "Is it fair to say that the request was to be denied because of (a) the availability of vacation credits or (b) that the issue was not extraordinary .... ?" Mr. Parker responded that, "I believe there was another way for him to be with his family .... the fact of having vacation pay facilitied the matter of being with the family, with or without pay." ~ What was Mr. Parker to respond? Was he to perjure himself? Was he to deny any knowledge of the availability of vacation credits? Was this the response that was fatal to the case for management? Mr. Parker knew that vacation credits were available. He knew that this was true for all employees - not just grievor Marcoux. Appar- ently the majority position was that witness Parker should have respondend to the issue of vacation credits on the basis that their avalability" .... would have made no difference". (P.25) Had he so responded it would appear that the subject case would have been dismissed. Interestingly enough, Mr'. Parker knew that grievor Marcoux had no vacation credits available to him; and yet he still concluded that the request for special or compassionate leave with pay would not be granted. In Exhibit 6, Mr. Parker responded to grievor Marcoux that he would not agree to the requested leave with pay;~ but he did suggest to him that he could have leave without pay or that he could apply for vacation credits for the following year to provide for absence with pay. was this another "irrelevant" inference that was fatal to management's position? The issue before the Board in this case, as set out at page 4 of the award, was the question as to whether " .... the employer .... (acted) .... in 'an arbitrary, discriminatory or in a bad faith manner' in its handling of the grievor's application." This Member is of the opinion that the decision made by Mr. Parker was not arbitrary, discriminatory or made in bad faith. Moreover, on a consideration of reasonableness as applied to the guidelines associated with the evaluation of this issue, this Member would conclude that the decision made by the manager was reasonable; and that the subject grievance should have been dismissed. F. T. Collict, Membe r.