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HomeMy WebLinkAbout1988-1129.Malyon.89-07-17 ONTARIO EMPLOY~'S DE LA COURONNE CROWN EMPLOYEES DE L 'ONTARIO GRIEVANCE C,OMMISSlON DE SETFLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, TORONTO, ONTARIO. MSG 1Z$- SUITE2100 TELEPHONE/T~L~'PHONE 180. RUE OUNDAS OUEST, TORONTO. (ONTARIO) M5G 1Z8 - BUREAU 2100 (41~) 598-0688 1129/88 IN THE FATTER OF AN ARBITRATION Under THE CROWN EMPnOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLE~tENT BOARD Be tween: OPSEU (Malyon) Grievor - and- The Crown in Right of Ontario (Ministry of Revenue) Employer Before: R.J. Roberts - Vice-Chairperson T. Browe s-Bugden - Member W. Lobraico - Member APPEARING FOR M. Bevan THE GRIEVOR: Grievance Officer Ontario Public Service Employees Union APPEARING FOR D. Daniels THE EMPLOYER: Staff Relations Officer Personnel Services Branch Ministry of Revenue HEARING: February 3, 1989 March 16, 1989 AWARD In the present arbitration the Union submitted on behalf 6f the Grievor that she was unreasonably denied compassionate leave under the following provision of the Collective Agreement. ARTICLE 55 - SPECIAL AND COMPASSIONATE LEAVE 55.1 A Deputy Minister or his 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. For reasons which follow, the grievance is allowed. The grievor is a Property Assessor employed by the Ministry of Revenue in its offices in Cornwall, Ontario. At about 8:00 a.m. on September 21, 1988, the Grievor went to her supervisor and requested compassionate leave for that day. She filled out the appropriate form and stated as the reason for her request, "I need the day to be coach for my sister while she has her baby". The supervisor took this request to the Assessment Commissioner, Mr. Gagnon. The two of them briefly discussed it. Mr. Gagnon then requested that the grievor come in to Give him additional details. The gr'ievor, however, had already left. She received permission to leave from her supervisor at the time she filled out the form. When he ~as advised that the grievor was no longer in the building, Mr. GaGnon sought further information from Ms. Connie Gaucher, the Manager, Budget and Office Services. He asked Ms. Gaucher if she knew anything about the gr~ievor's sister. Ms. Gaucher replied that she ,knew that the sister was a registered nurse and a single mother in her mid-30's. Thereafter, Mr. Gagnon returned to his office and at about noon on that same daY, he denied the grievor's request for compassionate leave. At the hearing, the grievor testified that throughout the course of her sister's pregnancy, her sister was quite alone. The father of the child had disassociated himself as soon as he found out that her sister was pregnant. The mother and father of the grievor and her sister were advanced in years and unable to assist during the birth. The ~rievor was the only one to whom her sister could turn for support during labour and delivery of the baby. Mr. Gagnon candidly agreed in his testimony that none of these additional facts was known to him at the time he made his decision to deny compassionate leave. Under Article 55.1 of the Collective Agreement, the Ministry has the discretionary authority to grant paid compassionate leave to an employee for up to 3 days per year. This discretion is not unlimited. It must be exercised reasonably. Re O'Brien and Ministry of Correctional Services (1987)r G.$.B. #1157/86 (Gandz); Re Stace¥ and Ministry of Correction Services (1987), G.S.B. #0193/85 (Roberts). This requirement of reasonableness demands that the decision-making process conform to certain 3 minimum standards. In Re Kuyntjes and Ministry of TransDortation and Communications (1984), G.$.B. #513/84 (Verity), these minimum standards were set forth 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 conversely irrelevant consideration must be re~ected. Id. at p. 16. In the present case, there seems to be no doubt that Mr. Gagnon's decision was made in good faith and constituted a genuine exercise of discretionary power with respect to the individual application of the grievor; however, it appears that Mr. Gagnon failed to consider all relevant facts before he reached his decision. When he made his decision, Mr. Gagnon did not have any facts before him relating to the genuiness of the need of the grievor's sister for the grievor's aid and comfort during the course of labour and delivery. For all that Mr. Gagnon knew, the father or other family members were there at the hospital to render this kind of assistance. This, of course, was not the case. 4 We do not doubt that what motivated the grievor to seek leave on the day in question was her sister's special need for her help during labour and childbirth. There was some argument advanced by the Ministry' that it was not "necessary" in the physical sense for the grievor to be with her sister because the sister'was a registered nurse and, to her knowledge, the hospital staff were competent to handle any complications which might arise in the course of labour and delivery. But Article 55.1 does not confine the exercise of discretion to such "bloodless" criteria. Considering the grievor's testimony in light of the surrounding circumstances, we accept that there was a moral and emotional necessity for her to be with her sister on that day. She was in a "situation deserving of a sympathetic treatment." Re Elesie and Ministry of Health (1980), G.S.B. ~24/79, at p. 7 .(Swinton). This is what compassionate leave is all about. Accordingly, the grievance is allowed. It is ordered that the records of the grievor be corrected to indicate that on September 21, 1988, the grievor was on compassionate leave, and it is further ordered that the vacation day which the grievor was required to take to cover this absence be reinstated to her. DATED at London, Ontario, this 17th day of July, 1989.