HomeMy WebLinkAboutShannon 02-07-11 IN THE MATTER OF AN ARBITRATION
BETWEEN:
SENECA COLLEGE OF APPLIED ARTS AND TECHNOLOGY
The College
- and -
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
The Union
AND IN THE MATTER of the grievance of Gregory Shannon with respect to personal
leave.
Arbitrator:
I.G. Thorne
Appearances for the College:
Catherine Peters, Counsel
Kavita Chhiba, Director, Employee Relations
Jane Wilson, Manager, Recruitment & Support Services
Danny Rae, Shift Manager, Facilities Dcpartmem
Justin Kazakevicius, Director, Facilities Management
Appearances for the Union:
George Richards, Senior Grievance Officer
Janice Hagan, Local President
Gregory Shannon, Grievor
A heating in this matter was held on June 12th, 2002, at Toronto, Ontario.
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AWARD
The grievor contests the College's refusal of his request for a day of personal leave with
pay in accordance with Article 12.2 of the collective agreement. The day in question was the
second of two days during which the grievor was absent from work. The College granted him
leave with pay on the first day but was prepared to treat the second day only as personal leave
without pay under Article 12.1. The two articles are 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.
The grievor found it necessary to take two days offwork to care for his wife, who was ill,
and for his daughter who was then three and a half years old. The College does not dispute the
legitimacy of either absence but takes the position that the grievor should not be paid for the
second day since the question of child care had been discussed with him on a previous occasion;
in the College's view the grievor had failed to arrange a suitable contingency plan for child care in
an emergency, and he and his wife had made a personal choice not to leave the child in the care of
a babysitter. There is, of course, more to it than that. The parties do not differ on many aspects
of the factual situation. Moreover they both recognize that the College has a discretion to grant
personal leave with pay. Nonetheless the facts must be xev~'ewed in some detail since they will
determine whether the College's decision was made within the scope of the discretion allowed to
it and whether the grievor's request was unreasonably denied.
The grievor is a caretaker at the Newnham CampUs of the College where he has been
employed since May 1989. At the time this situation arose on March 18th, 2001, he was working
shifts which started at 6:30 p.m. and ran to 3:00 a.m.. On March 18th, he started his shift in the
normal way but worked only until about 11:00 p.m.. At that time he received a phone call from
his wife who seemed seriously ill. The details of her illness are not material since, as indicated,
the legitimacy of the grievor's absence is not in issue. The grievor went home and then took his
wife to hospital. At that hour the grievor was not able to arrange for anyone to babysit his young
child, so he took her with him to the hospital as well.' They were at the hospital until between
2:00 and 3:00 p.m. on Monday, March 19th. When they then came home the grievor's wife was
extremely tired and had to lie down. They had an argument about whether the grievor should stay
home or not but the upshot was that he started calling people who.n/ight be able to look after the
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child while he went to work. He was again scheduled to start work at 6:30 p.m.. He was not
able to find anyone who would be able to look after the child during his time at work. In the
meantime his wife had fallen asleep. He did not know how long she would sleep after having
been up all night and the previous day and having been given some medication at the hospital.
Between 3:00 and 3:30 p.m., therefore, he called in to _s.a.y-.tl~'at he could not come to work. He
stated at the hearing that he had planned to go into work if his wife had woken up during his shift,
but in fact she slept for the next sixteen hours. The extent of the arrangements the grievor had
made for child care in a situation such as this was a focus of testimony at the heating.
This question was significant because the College had had a discussion with the grievor, in
or about May 2000, following several requests for leave which had involved the care of his wife
and child. It was said that the College had expressed certain expectations during that discussion
and also that the grievor had made a statement which appeared to indicate a preference about
child care and had thus limited his options. The discussion had taken place during a step in the
grievance procedure and this fact caused the Union concern about the admissibility of the
evidence. Counsel for the College indicated that what had been said in that regard was a factor
which affected the decision the College had made in the present case. She indicated that she
wished to inquire no further into the matter than to draw out evidence about the expectations for
the future that had been expressed in the earlier discussion. The Uriion agreed that management
could communicate its expectations for the future (and call evidence about the fact) in the context
of a grievance meeting. Beyond that, however, there should be no evidence about the meeting,
particularly since it had in fact resulted in a settlement. In these circumstances I was prepared to
hear evidence about what was said at the meeting limited, however, to the statements made on
each side about expectations for the grievor's future conduct.
Jane Wilson, then a Personnel Officer (and now Manager, Recruitment & Support
Services) testified to her recollection of what had been said at the meeting. The grievor had
mentioned that his wife had ill health and that he had family commitments. The College had
stated its expectation that in future he should have in place alternative or contingency
arrangements for the care of Ids child if his wife was ill. The grievor had stated, Ms. Wilson
recalled, that his wife was not comfortable with leaving her daughter with "babysitters". While
Ms. Wilson recalled that that was the word he used, she stated that her impression was that what
was meant was non-family members or friends, that is, individuals external to the family. The
grievor believed that he had said that his wife preferred not to have "strangers" in their home and
that that was what he had intended to communicate. What Ms. Wilson took from the gfievor's
statement was that he had made the determination that he had to be home with his wife. In her
mind this was an acceptable reason for his being granted leave, but not paid leave under Article
12.2. The College's representatives at the meeting had reiterated to him that it was his
responsibility to put in place alternative child care arrangements since that issue appeared to be
involved with a number of his prior requests for leave. At this hearing the grievor acknowledged
that that expectation had been expressed but said that there had been no discussion about what
kind of arrangements should be made, beyond a general statement.
When it came to finding someone who could look after his daughter on March 19th, 2001,
the grievor testified, the hours of his shif~ made it difficult to find someone who wouId be able to
stay at his home. There were relatives of his wife and himself whom he could call and he did call
his wife's sister, Donna, his own brother, his wife's mother and his wife's sister, Doreen. He also
called a daycare centre which was downstairs in his apartment building but was told that the
centre closed at 6:00 p.m.. Some of these individuals he called on March 18th when he realized
that his wife was ill, and others he spoke to on March 19th. He found that they were variously at
work themselves, had other responsibiIities, or could not be reached. I accept his account of
those calls. There were also other relatives and acquaintances whom he did not call for various
reasons, and having heard his evidence I see no reason to question his judgement on that point.
He also had a list of two friends who had agreed to be available for requests to babysit. He found
that one of those people said that she could not leave her own children; he frankly stated that he
had not thought of asking that person if he could take his daughter to her home. (The grievor
does not have a car.) He lef~ a message for the other person but did not hear until the following
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day. Challenged in cross-examination that he should make arrangements for child care so that he
could come to work, he said that one could make arrangements but that they didn't always work.
On the afternoon of March 19th he tried to speak to his superiors, Ronald Atkins and
Daniel Rae. The first opportunity he had to see one of them was on March 20th, and he believed
that it was Mr. Rae he spoke to. He told him that he had tried to find some babysitters. Mr.
Rae's response was that he should put more detail on paper in connection with a request for paid
personal leave.
Although neither Mr. Atkins nor Mr. Rae testified, a series of e-mails was in evidence and
Ms. Wilson also testified about the sequence of events. Ms. Wilson had first become aware of the
grieVor's request for paid leave when Mr. Atkins phoned her to tell her of the request and also
that he was going to send her a doctor's note which the grievor had brought in. The grievor had
provided this in an e-mail dated March 22nd addressed to Danny Rae/Ron Atkins:
In regards to my request for "Leave With Pay" under section 12.2 of the Collective
Agreement; here is a copy of the medical note I received for my wife from the hospital.
If further information is required please contact me accordingly.
Mr. Atkins forwarded the medical note to Ms. Wilson who responded in an e-mail to him
on March 26th:
Again???!!!
Did Mr. Shannon give you a written request as well as the medical note? If not, the
medical note is not satisfactory for the College to make a determination. There is no
date on the medical note, and in reviewing MeI's grievance response of June 5, 2000, to
Mr. Shannon, we also need to know what time of the day (as discussed at the grievance,
why could Mr. Shannon not have come in for at least part of his shift) and medical
documentation from the doctor "which describes the extenuating personal
circumstances", i.e. what was the emer~,encv medical attention that was required. The
doctor's note that Mr. Shannon has submitted simply states that he "had to attend
hospital today (what time?) and care for his wife".
Please let me know when you have further info!
It appears that it was Mr. Rae who then made inquiries of the grievor since the grievor's
next e-mail, on March 27th, was addressed to Mr. Rae:
Danny, here is the information that you and Ron were requesting.
On Sunday, March 18, 2001 at approximately 11:00 PM I signed out at the security desk
in order to take my wife to the hospital. We arrived there at approximately 12:30 - 1:00
AM and left there on Monday, March 19, 2001 at approximately 2:00 - 3:00 PM.
When we got home I looked after my 3 year old daughter while my wife slept,
recovering from the drugs that the doctors had pumped into her. My wife slept
approximately 16 hours trying recuperate. When she was finally able to start looking
after our daughter I got some sleep in order to come into work for the following shift.
If any further information is required please feel free to contact me accordingly.
Ms. Wilson was copied with that e-mail and later that morning she e-mailed Mr. Rae:
Please let me know what shift (days of the week and hours) Greg is on.
She explained at the hearing that she asked this question because she needed to know
whether the grievor could possibly have got to work for part of his shift after arriving home
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around 2:00 p.m. Mr. Rae responded that afternoon:
Greg is working from 6:30 pm to 3:00 am Sunday to Thurs
The next e-mail in the sequence was from Ms. Wilson to Mr. Rae on April 3rd:
Greg can have 12.2 for the remainder of his shift on March 18, 2001, only.
His absence on March 19, 2001, will be his decision - vacation, leave of absence without
pay, lieu time!
Talk to you later.
Ms. Wilson testified that paid leave seemed appropriate to her for the absence on March
18th, since the grievor's wife was ill and he had had to take her to the hospital. Looking at the
situation on March 19th and the fact that child care had been a factor in previous requests by the
grievor for leave, she felt that he could have made arrangements for care for his daughter. He had
an obligation to contribute to the process. Yet there was no information that he had tried when
he might have done so, either on the morning of the 19th or even after he got home at 2:00 p.m..
It was open to him to have made other arrangements, especially as the need to do so had been
expressly pointed out to him (at the grievance meeting in or about May 2000). What she took
from this situation was that the grievor had made a decision to be home with his wife. This was
an acceptable reason for his having leave, but not paid leave.
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Mr. Rae then sent a letter to the grievor on April 5th:
Re: 12.2
On March 18/01 you signed out early from work at 11:30 p.m. because of a family
medical problem. This time off work has been recorded as 12.2 leave with pay. On
March 19/01 you were offwork. How would you like us to record this time offwork, as
a vacation day or leave without pay.
Please let us know
On April 9th the grievor sent an e-mail to Mr. Rae with a copy to Ms. Wilson:
In response to the letter I had received from you dated April 05, 2001. My apologies if
there was any misunderstanding in regards to my request for 12.2, Leave With Pay. I
was requesting the 12.2 for both March 18 and 19, 2001. If further information is
required please feel free to contact me. Thank you, Gregory Shannon.
On April 10th, Ms. Wilson sent an e-mail to Mr. Rae:
Please clarify with Greg that your memo of April 5, 2001, meant that the College was
only granting March 18, 2001, as 12.2 leave With Pay.
Ms. Wilson stated that the first she had heard from the grievor that he had made attempts
to make alternative child care arrangements was at a grievance meeting the following December
4th. The grievor's view of that aspect of the matter was that he had mentioned his efforts to Mr.
Rae when he first spoke to him to ask for the leave. He had not given to Mr. Rae the amount of
detail that had been mentioned at the hearing, but he had stated that he had tried to find some
babysitters. The only response he had received was a request to put more details about his
request for leave under Article 12.2 on paper, and this he had done in his e-mail to Mr. Rae and
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Ms. Wilson on March 27th. Asked in cross-examination why he had not indicated his efforts to
find child care in that e-mail, he stated that he did not realize that that was necessary; if he had
known what they were looking for, he would have provided it. He pointed out that he had not
been asked for that information, even though he had offered to provide any further information
they might require. Ms. Wilson was asked in cross-examination why she had not told the grievor
that his medical note was sufficient to justify paid leave for March 18th, but not for March 19th.
She responded that the grievor was aware of what the College required and what he had provided
wasn't sufficient. Asked if there was no need to ask the grievor for more than the note, she
replied that the College had done that and had received the grievor's e-mail of March 27th.
As mentioned earlier, the College considered that the discussion it had had with the
grievor .the previous year, in the comext of a series of requests for leave, was a factor in its
decision in the present case. The series of requests for leave with pay under Article 12.2 was in
evidence in summary form. There had been eight such requests before the occurrence on March
18th and 19th, 2001, as follows:
(1) on June 10th and 13th, 1999, the grievor was unable to find a person to look after his
wife and daughter on a Thursday and a Sunday night after his wife had had an operation; paid
leave of two days under Article 12.2 was approved.
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(2) during a shift on October 18th and 19th, 1999, the grievor was unable to arrange for a
sitter when his wife was sick; paid leave was approved.
(3) on November 1 lth, 1999, the grievor's wife was babysitting her sister's children and
had to remain with them when her sister had to do a double shift at work, with the result that the
grievor could not leave his daughter; paid leave was approved.
(4) for a shift on January 19th and 20th, 2000, the grievor had requested paid leave at a
time when his wife's hand was injured but had indicated that he could take the day as a vacation
day if his request for paid leave was not acceptable; he took the day as a vacation day.
(5) on February 3rd, 2000, the grievor's wife and daughter were both ill; the day was
taken as a vacation day.
(6) on March 22nd, 2000, the grievor stayed home to look after his daughter when his
wife was told by her employer that she had to work a double shift ending at 3:30 a.m.; the
grievor grieved the initial refusal of paid leave, the matter being resolved by leave under Article
12.2 for one-half of the shift and use of vacation time for the other half} the discussion mentioned
earlier in this award took place during the grievance procedure.
(7) at the time of his shift on April 30th and May 1st, 2000, the grievor stayed home to
look after his daughter when his wife was at her parent's place due to a family emergency after
which she herself went to the hospital; paid leave under Article 12.2 was approved.
(8) on November 1st, 2000, the grievor came to work at 11:00 p.m. and asked if he could
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go home because his wife was sick; paid leave was approved.
Also in evidence was a reference manual available to College administrators summarizing
what arbitrators had said about requests for leave under Article 12.2 and setting out guidelines for
considering requests for such leave. Although the reference manual had been prepared in June
2001, i.e. after the grievor's request for leave, Ms. Wilson testified that she had seen the material
before and had used the guidelines as a double-check when the decision was made.
Submissions of the Parties
Mr. Richards, for the Union, pointed out that Article 12.2 was prefaced by the mutual
recognition that leaves of absence should be scheduled where possible to ensure a minimum of
disruption to the College's services. The Union accepted that there had to be a balancing of
interests between the needs of the employee making a request for leave and the obligation of the
College to provide its educational services. In this case counsel for the College had indicated that
potential disruption was not a factor in its decision. In these circumstances, the Union suggested,
the standard to which the employee should be held was somewhat lower and the balance relatively
easy. The Union's representative proposed that, absent the factor of disruption (which was
referred to only in Article 12.2), the applicable standard should be closer to that which applied
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when unpaid leave was sought under Article 12.1. Further, while there was a discretion in the
College, the Union argued, part of the framework for the exercise of that discretion was the
requirement that requests were not to be unreasonably denied.
In the latter connection the Union stressed the extenuating circumstances described by the
grievor and argued that it was as appropriate and desirable for the grievor to be available to look
after his daughter when he had to as it was for him to be able to care for his wife when she was ill.
The Union relied on Re Georeian College and Ontario Public Service EmDlovees Union
(unreported, April 6th, 2001, Saltman), arguing that sufficient extenuating circumstances could
exist where a grievor had child care responsibilities and had made efforts to find an alternative
care giver.
Dealing with the College's view that the grievor was expected to have a contingency plan
for child care in place, the Union considered that the College's failure to ask the grievor about any
plans he might have made was unreasonable and tainted the decision: the grievor had complied
with the College's requests for information and clarification in circumstances in which the College
knew what it was looking for and the grievor was not privy to the College's concems.
With respect to the factors which should govern the College:s'exercise of its discretion,
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the Union referred to Re Lovalist Colleae and Ontario Public Services Emr~lovees' Union (1990),
9 L.A.C.(4th) 166 (Kruger) at p. 173, and examined those factors in light of the evidence.
Counsel for the College stressed that Article 12.2 did not confer a right to a paid leave.
The granting of paid leave was in the College's discretion, subject to the requirement that requests
were not to be unreasonably denied. What was required was the finding of a balance between the
College's legitimate interests and the employee's legitimate need to be away for personal reasons.
The College challenged the Union's view of the consequences which should flow from an
absence of "disruption" in connection with the grievor's absence: disruption was mentioned in the
portion of Article 12.2 which dealt with the need for reasonable notice to a supervisor; it did not
relate to the question of the granting of a paid leave.
Counsel reviewed a number of awards which had considered requests for leave under
Article 12.2 during the approximately 20 years the article had been in the collective agreement.
She suggested that the awards generally supported the proposition that, provided the
decision-maker considered the individual merits of a case, did not fetter a College's discretion by
relying rigidly on policy, and did not fail to consider relevant facts, arbitrators would accord some
deference to decisions made by colleges under the article. The standard was one of
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reasonableness, not perfection. Aspects of this proposition were exemplified by Re Confederation
College and Ontario Public Service Emr)lovees' Union (unreported, August 1 lth, 1982, O'Shea);
Re Loyalist College and Ontario Public Service Emt)lovees' Union (unreported, September 16th,
1996, H.D. Brown); Re Seneca College of Applied Arts and Technoloav and Ontario Public
Service Employees Union, Local 561 (Support) (unreported, December 4th, 2000, Whitaker); Re
Cambrian Colle.~e and Ontario Public Service Emr~lovees' Union (unreported, December 10,
1982, O'Shea); Re Seneca College and Ontario Public Service Employees' Union (unreported,
March 1 lth, 1985, Brent); Re St. Clair College and Ontario Public Service Employees' Union
(unreported, May 15th, 1985, Brent); Re Loyalist College and Ontario' Public Service Employees'
Union (supra); Re Fanshawe College and Ontario Public Service Employees' Union (unreported,
September 3rd, 1992, MacDowell); and Re Mohawk College and Ontario Public Service
Emr)lovees' Union (unreported, December 8th, 1993, Bendel). The facts in Re Confederation
College (supra) and Re Geomian College (supra) were somewhat similar to the facts in the
present case. In Confederation the board chaired by ,ad-bitrator O'Shea found that the College had
properly considered all the facts which the grievor had made available and that there was no basis
for determining that the College had acted unreasonably in refusing a request for paid leave. In
the present case the College saw the Georgian College case as an exception to the general
proposition in that the decision appeared to look at the tightness or wrongness of the College's
decision.
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Dealing with the facts in the present case, counsel observed that it was an issue between
the parties whether the College should have prompted the grievor for information about his
alternative child care arrangements or whether it was for him to bring forward the information
himself. In the College's view the context in which this question should be examined included the
number of requests the grievor had made for paid leave and, in particular, the discussion which
had taken place about the College's expectations during which the grievor had made certain
comments which had perhaps been misinterpreted. After the pattern of repeated requests for
leave, the grievor should have understood by the time of the discussion that the question of child
care was critical and that the College had a legitimate interest in the grievor's regularly attending
at work. Counsel reviewed the facts in some detail.
Decision
Article 12.2 gives a discretion to the College in deciding whether to grant leave of absence
for personal reasons in extenuating personal circumstances, without loss of pay. The nature of a
discretionary power found in a collective agreement provision has been discussed in numerous
awards, notably among them Re Meadow Park Nursine Home and Service Emr~lovees
International Union, Local 220 (1983), 9 L.A.C.(3rd) 137 (Swan) at p. 141-144 (cited and quoted
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in Re Fanshawe College (supra) at p. 12). The following passage (Re Meadow Park at p.
142-143) encapsulates the principles subsequently referred to in a number of awards:
... 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 a 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 ....
Article 12.2 contains the stipulation that" ... such requests shall not be unreasonably
denied", an element which introduces a requirement of reasonableness in the decision-making
process (to the extent that that would not have been understood from the nature of the discretion
itself). However it must be borne in mind that the discretion is for the College to exercise and
that it is not for a board of arbitration to substitute its decision for that of the College, so long as
the College's determination is made in accordance with the foregoing principles and is not
unreasonable.
In this case it has not been suggested that the College's discretion was exercised other than
in good faith or that the College applied a rigid policy (the focus of several of the awards cited to
me). What is seriously in dispute here is whether the merits of the grievor's case were adequately
considered and particularly whether all relevant factors were considered. This issue really
narrows down to whether, as the College argues, the grievor should have brought forward all of
the information which would have supported his request or whether, as the Union suggests, the
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College should have sought out the information.
The College has established guidelines to assist its managers in dealing with requests
under Article 12.2. (Although the guidelines were not published in their present form until June
2001, it is my understanding from the evidence that the same or similar material was available to
managers at the time the grievofs case came up.) The preparation of guidelines is a desirable
practice and it is not my intention to comment on the guidelines, except to note that they are
clearly directed towards the sorts of factors which must be considered in the exercise of a
discretion. Thus, relevant to the present case, the guidelines in Section E point out that requests
for leave are not to be unreasonably denied and that each request should be considered separately
on its merits. Some of the guidelines in Section F deal more precisely with how a manager is to
apply these requirements: the manager is advised to ask questions to ensure that he or she has all
relevant information, and to make sure that he or she has all the facts that should be taken into
consideration.
The question of whether the discretion was properly exercised in this case tums very much
on the individual facts of the situation. In the first instance the grievor asked for a leave,
mentioned something of the difficulty he had had in finding a babysitter, and offered a medical
certificate. The certificate indicated that he had had to attend hospital and care for his wife and
miss work accordingly. The note lacked the date or any other particulars and the College
appropriately asked for further information. Examining Ms. Wilson's e-mail of March 26th to Mr.
Atkins, and the grievor's of March 27th, it appears that Mr. AtkJns had conveyed the substance of
Ms. Wilson's concerns since the grievor dealt with the points she had raised. From what followed
it appeared that the College was satisfied, or at least no longer concerned, about the absence of a
written request. One has to take it that the lack of a date on the doctor's note ceased to be a
concern and that the College now had the necessary information about the time of day involved; it
was presumably obvious that the grievor felt that he could not come in for the balance of his shift
on March 18th/19th or for the shift of March 19th/20th. The nature of the emergency and the
need to be at the hospital during the shift of March 18th/19th was likewise clarified by the
grievor's e-mail of March 27th. It is fair to say that the grievor responded to the points Ms.
Wilson had raised.
The difficulty the College had with the grievor's request for paid leave for March
19th/20th - that there was no information about his efforts to find child care - was not mentioned
to him by Mr. Atkins, understandably enough since Mr. Atkins had not been asked to raise it with
him. In the absence of contradictory evidence, there is no reason to doubt the grievor's evidence
that he had himself briefly mentioned his efforts to find babysitters when he first made his request
for leave. In these circumstances it is not hard to understand why the grievor did not describe his
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efforts when he sent his e-mail of March 27th. Thus what has turned out to be the most critical
issue, namely the grievor's efforts to find child care, was not raised with him by the College when
it asked him for information. The grievor's offer to provide further information if required in each
of his e-mails might have been taken as an opportunity to pursue this question, but it was not.
Nor was the child care issue mentioned when the g ev..or s [equest was refused. The College
considers that the grievor should have understood that that issue was important as a result of the
discussion during the grievance procedure nine or ten months before. On the evidence I do not
think that the grievor misunderstood the importance of that issue but rather that he had tried to
deal with it by making arrangements for child care. His arrangements may not have been ideal but
I am satisfied that he made real efforts in difficult circumstances; putting in place an emergency
child care plan to cover a 6:30 p.m. to 3:00 a.m. shift cannot be easy. It is probable that the
College would have learned something of these circumstances if it had inquired.
Should it have inquired? Obviously it is more likely that the discretion will be properly
exercised if an employee and the College both see to it that the necessary information is brought
forward, but there can be no rule about this; each case will depend on its own circumstances. In
this case the grievor himself mentioned his child care difficulties when he made his request. It is
unclear whether that mention was passed on to Ms. Wilson. In any event the College did ask
questions about several aspects of the situation but unfortunately 'n~)t about a most important
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factor. The result was that a relevant factor - possibly the determinative factor - was not properly
considered.
These circumstances have urrfortunately given rise to a situation in which the College did
not exercise its discretion under Article 12.2 since it failed to consider relevant facts. It might
further be said that the result was that the grievor's request was unreasonably denied. However I
am satisfied, as was the board in Re St. Clair College (supra, May 15th, 1985) that a board of
arbitration should be reluctant to exercise discretion under Article 12.2 and say whether it would
have granted leave with pay on the day in question. At the same time the remedy adopted by the
board in St. Clair is appropriate here in my opinion. It is worthwhile to set out the board's
reasoning (p. 11):
Under the circumstances, we must give the grievor a remedy for the College's breach of
its obligation to her to consider her request for leave of absence with pay under Article
I2.1.2 which reflects her lost opportunity to have her request considered by the College
with the exercise of its full and unfettered discretion. It may be that, had the College
properly considered her request, it would have reasonably denied it or granted it. In our
view it would be inappropriate under these circumstances to remit the question back to
the College for the proper exercise of discretion, in view of the fact that only a relatively
small amount of compensation for one individual is at stake and the decision cannot
directly effect the rights of anyone else in the bargaining unit. Accordingly, we consider
that the most reasonable remedy for the breach in this case is to award the grievor an
amount equal to one day's pay at the rate which she was earning on [the date of the
request for leave].
Accordingly I order that the grievor is to be paid one day's pay at the rate he was earning
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on March 19th/2Oth, 2001.
Dated at Kingston, Ontario, this I lh day of July 2002.
I.G. Thorne, Arbitrator