HomeMy WebLinkAbout1988-1116.Henry.91-03-19 ONTAriO EM~.OYE$ DE LA COU~ONNE
GRIEVANCE C,OMMIS$1ON DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
1116/88
IN TW~ MATTER OF 3%NARBITRATION
Un, er
TH~ CROWN EMPLOYEES COLLECTIV~ BARC~INING ACT
Before
THE GRIEVANCE-SETTLEMENT BOARD
BETWEEN OPSEU (Henry)
, ~rievor
- au~ -
The Crown in Right of Ontario (Ministry of Revenue)
Employer
BEFORE: J.E. Emrich Vice-Chairperson
J. McManus Member'
I. Cowan Member
FOR THE M.A. Kuntz
~IEVOR Grievance Officer
Ontario Public Service
Employees Union
FOR THE D. Daniels
EMPLOYER Couns e 1
Mathews, Dinsdale & Clark
Barristers & Solicitors
~E~%/~IN~: March 14, 1989
A~ARD ~.
In his grievance, Mr. Henry oontests the Rmployer's denial of his
request for 3-1/2 hours of paid compassionate leave to attend the funeral of
a friend in Brampton on September 9th, 1988. The Employer took the position
that these circumstances were not appropriate for paid cc~passionate leave
under.Article 55 of the collective agreement, but fell within the sorts of
circumstances contemplated by Article 49 of the collective agreement
pertaining to bereavement leave. Since the bereavement leave provisions
are triggered ir~ the event of the death~ of specified ~amily members, the-
Employer took the position that the collective agreement did not provide for
paid leave to attend the funeral of a friend and denied the grievor's
request for paid leave. However, the Employer did grant the time off
requested by the grievor to attend the funerak,' but without pay..
On behalf of the grievor, the Union pointed out that the ~ployer had
demonstrated through its conduct in the past, that ccmpassionate leave would
be granted to attend the funeral of a friend. The Union therefore argued
that the proper interpretation to be given to the cC~Passionate leave
provisio~ls was liberal in scope, so as to be consistent with the Employer's
past practice. ~ae L~io~ specifically did not argue t.hat the Employer was
estopped by its condu~t frcm advancing a more narrow interpretation of the
meaning of Article 55. }{owever, the Union argued that the f~ployer had
acted arbitrarily-and unreasonably by denying the grievor's request for
le ave.
No objection was raised at the hearing to the jurisdicti°n or
constitution of the panel. ~ne relevant collective agreement provisions are
the foil(wing:
ARTICLE 29 ~ LEAVE WITHOUT PAY
29.1 Leave-of-absence without pay and without the accumulatioa of
credits may be granted to an employee by his Deputy Minister.
ARTICLE 49 - BEREAVi~4ENT LEAVE ·
49.1 An employee who would otherwise have been at work shall be
allowed up to three (3) days leave-of-absence with pay in the
· event of the death of his spouse, mother, father, mother-in-
law, father-in-law, son, daughter, brother, sister, son-in-
law, daughter-in-law, sister-in-law, brother-in-law,
grandparent, grandchild, ward or guardian.
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 cc~passionate grounds.
55.2 The granting of leave under this Article shall not be
dependent upon or charged against accumulated credits.
In addition to calling sc~e viva voce evidence, the parties'
representatives proceeded on the basis of an agreed statement of facts, as
follows: ~
1) That prior to Mr. Moore's appointment as Cc~m~issioner 'in the
Barrie Assessment of[ice on o[ about June 1988, the previous
~anage~ent teams took a liberal approach to granting requests for
special or compassionate leave under Article 55 of the Collective
A~reement.
l~arding previous requests for special leave by'the grievor - the
following are acknowledged as s~me requests that have been
granted:
1. 1975 - June 6-1~ 1 day plus 2 half days to attend wife's
grandmother's funeral {out of town)
2. Dec 14/79 1 day to attend friend's funeral
3. Ma~ 54/80 1/2 day to attend cou~t hear ir~
(finalizing adoption of daughter)
4. July 29/81 i day to take mother hcme frcm hospital
5. Oct 13/82 4 hours to attend friend's funeral
6. June 6/86 1 day to attend friend's funeral
7. Feb 26/88 1 day to assist sick friend in hospital
3) Regarding Donald Hurst - another Ministry of R~venue employee -
the following days' leave were granted:
1. Jan' 24/~6 friend' s funeral
2. Mar 13/86 friend's funeral
3. Nov 16/87 uncle's funeral
4) Regarding Pat Bond - an.other Ministry of Revenue employee - the
following leave was granted: '
1o Apr 12/88 1 day leave to attend a funeral in
Cobourg
Furthermore, the parties were agreed that there was no issue arising in
this case as to breach of Article 55.2.
The grievor is classified as a Property Assessor 3 at the Regional
Assessment Office 16 in Barrie. As set out in the.agreed statement, his
testimony established that within the time period frcm~ June 1975 to June
1986, his requests for special and compassionate leave had been granted to
attend a friend's funeral. Requests by other employees of a similar nature
during this time frame had been approved as well. The testimony of
witnesses on behalf of the Employer was much to the same effect.
Mr. William Anderson, Evaluation Manager at the Region 16 Office since
1970, testified that the Commissioner was the official responsible for
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authorizing requests for special and compassionate leave. He explained that
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until May 1987 the incumbent of the C~mmissioner's position took a liberal
approach to granting requests of the sort at issue. He added that,
initially, such requests would be granted if unexpected circumstances arose
which Mr. A~derson characterized' as an emergency. However, in the late
1970's until May, 1987, Mr. Anderson observed a shift in policy, such 'that
virtually any reqUest for special or co~passionate leaVe was granted. A
further chan§e in policy.occurred once the present Cc~missioner, Mr. Moore,
was appointed in March 1988. Mr. Anderson pointed out that Mr. M~ore had
c~ented to him that the practice of granting such reqUests had beccme too
lax and that each reqUest should be considered on its own merits.
Mr. Don-Murray testified on behalf of the f~ployer as well. Mr. Murray'
held the position of Services Manager at the Region 16 Barrie officE' from% '
August 1982 to .January 11, 1989. From May 1987 until August 1988, Mr.
Murray was Acting Cc~missioner. His testimony was to the same effect. He
observed that prior to Mr. Moore assuming office as Cc~missioner, virtually
all requests for special or compassionate leave had been approved. Mr.
Murray noted that under this liberal practice, there had been ~occasions when
.they were short-staffed. H~wever, at no time, either prior to or after Mr.
Moore's appointment as'Cc~missioner, has there been an express policy
published about the granting or refusal of Article 55 requests, In late
July or August, 1988, Mr. Murray stated that the new Cc~m%issioner, Mr.
Moore, had advised him that there should be a change in approach to
approving requests for special or cc~oassionate leave and 'that requests for
such 'leave would be scrutinized.carefully.
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Mr. Murray stated that uPon receiving the grievor's request for special
and compassionate leave on September 8, he felt that there was insufficient
information from which he could decide whether to g~ant or refuse the
request. Mr. Murray explained that such factors as the emotional impact
upon the applicant, the operational impact of the request on the office, and
the degree of urgency would be considered. Having learned that the
grievor's request was to attend a friend's funeral, Mr. Murray asked the 4i
grievor to meet with him to discuss his request. Mr. Murray had been
delegated the task of deciding on 'such matters while Mr. Moore was away on
vacation. At a brief interview with the grievor, Mr. Moore learned that
the funeral was for a friend of long-standing acquaintance with the grievor
(over 30 years according to the g~ievor). Mr. Murray described the grievor
as not visibly upset, although it was clear that the grievor wanted to pay
his respects. Mr. Murray was able to obtain an estimate from the grievor of
the amount of time off requested. At some point in the interview, Mr.
Murray communicated to the grievor his decision to refuse paid ccmpassionate
leave, but he did grant the grievor the time off. M~. Murray explained that
on the basis of the information he had acquired, he did not feel that there
was a sufficient emotional impact or degree of urgency respecting the
grievor's request so as to qualify foe special or compassionate leave. He
added that there was no problem in this instance in respect to operational
efficiencies, nor was there any problem in [espect to any recurring
requests. There was some suggestion by the g£ievor that Mr. Murray had felt
bound by the 'precedent of two other similar requests which had been denied
by Mr. Moore as Commissioner. Mr. Murray recollected that those other
instances occurred later in time, but he acknowledged that there had been a
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shift in policy under Mr. Moore and that there-had been rumblings of
discontent about this change in the office.
The Union argues that the ~ployer acted unfairly, unreasonably, and
arbitrarily when it denied the grievor paid leave to attend the funeral of
his friend of 30 years. The Union points to the pu[pose of compassionate
leave by relying on the Oxford ~glish Dictionary definition of "ccmpassion"
- "pity inclining one to be helpful or merciful" and of compassionate leave
"granted on grounds of bereavement". Thus, the Union characterizes Article
55 as complementary to-Article 49 in purpose.
The Union acknowledged that Article 55 vests in management discretion
to grant or refuse compassionate leave, but contends that this discretion
must be exercised fairly and reasonably.~ In this regard, the Union relies
upon' Re' United Parcel Service Canada Ltd. (198i), 29 L.A.C. (2d) 202
(Burkett) wherein it is said 'at p.213:
"... the employer's decision-making should be assessed
against the requirement to act for business reasons and
the requirement not to single out any employee or 'group
of employees for special treatment which cannot be
.justified in terms of real benefit to the employer.
When the parties agree that such matters as
classification, qualification, demotion, transfers and
the scheduling of vacations are to be in the discretion
of management they do so in the knowledge that
management's decision-making in these areas will be made
in manag~ment's self-interest, may adversely affect
individual employees, and/or may not impact on all
employees equally. However, it is not contemplated as
part of the bargain that the employer will exercise his
authority in these areas for reasons unrelated to the
betterment of his business .or to single out employees
for the type of special treatment described. If the
employer acts in this manner, the results of his
actions, as they affect the bargaining unit generally or
individuals within the bargaining unit, may be found to
be beyond the scope of his authority under the
collective 'agreement.
The Union contended that in the absence of any legitimate business
reasons being shown for a shift i~ policy, and in the absence' of
communicating any such change to the Union or the employees in advance,
management ought not to have singled out Mr. H~nry for denial of his request
for compassionate leave, when for the previous 18 years other requests had
been granted in similar circumstances.
On behalf of the ~ployer, it was argued that in their collective
agreement, the parties have distinguished bereavement leave from
compassionate leave. Mr. Daniels cited to this Board a host of cases
decided by the Grievance Settlement Board which provide examples of how
Article 55 is to be interpreted and applied: Elesie and Ministry of Health
24/79; Stewart and Ministry of Transportatio~ and Communicatio~s 211/78;
Freem~n and Ministry; of Health '87/80; Fagan and Ministry of Consumer and
C~.,.ercial Relations 657/80; Gillies and Ministry of Correctional Services
274/81; Xavier and Ministry of Government Services 583/82; Jackso~ and
Ministry of Correctional Services 487/83; Kuyntjes and Ministry of
Transportation and Co~m~unications 513/84; Jackso~ and Ministry of
Correctional Services 146/84; Lacourse and Ministry of Correctional Services
1273/84; O'Brien and Ministr~f of Correctional Services 1157/86; Stacey and
Ministry of Correctional Services 193/85; Latulippe and Ministry of
Correctional Services 100~/~6; Cho~ and Ministry of Labour 5004/86; Gillies
and MinistrF of Correctional Services 672/86; Leger & Legacy and Mini~tr~f
of Correctional Services 506, 507/87; Sahota and Ministry of Correctional
Services 2454/87; Co~en and Ministry of Cc,-.-.~;;unity and Social Services
2410/87;' Blake et al. and Toronto Area Transit Operating Authority 1276/87,
1342/87, 1858/87, 1887/87, 1888/87, 1889/87, 1890/87, 1891/87, 1892/87,
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2292/87. On behalf Of the R~ployer, Mr. Daniels argued that the case law
supported the proposition that compassionate leave is not to be utilized as
an extension of bereavemeat leave.. Furthermore, he oon~ended that the
evidence demonstrated that the ~mployer investigated and gave due
~onsideraticn to the merits of the grievor's request and acted fairly,
reasonably and without discrimination in denying the grievor.'s request. It
was emphasized that the f~ployer had accommodated the grievor's needs
sympathetically by permitting the grievor time off without pay.
A canvass of the Board's jurisprudence, in light of the facts of this
case, sustains the Rmployer's position. The standard of'arbitral review
applicable to the broad discretion co~ferred up0~ management by Article 55
has been considered in a number of cases. Tae applicable standard of review
has been expressed in Kuyntjes and Ministry of Transportation and.
C~unicaticns 513/84, in the following terms at p.16:
In cases involving the exercise of managerial
discretion, Boards of Arbitration generally hesitate to
substitute their view for that of the decision-maker,
which is.a recognition of the fact that Boards have less
familiarity than does the ~mployer with the exigencies
of the work place. However, Arbitrators must ensure
that decisions are made within the confines of certain
minimum standards of administrative justice. Those
administrative law concepts relating to the proper
exercise of discretion iD~lude the following
oonaiderati~ns:
1) The decision m~st be made in good faith and without
discr imination.
It must be a genuine exercise of discretionary power, as
opp(~d to rigid 'policy adherer~e.
3) Co~%sideration must be given to the merits of the individuals
application under review.
4) All relevant facts must be ~onsidered and oonversely
irrelevant consideration must be rejected.
Much to the same effect is the standard review articulated in O'Brien
and Ministry of Correctioaal Services 1157/86 at p.ll:
In our view, Lake Cntario Steel and Hanson suggest
minimal standards of procedural reasonableness. In
exercising its discretion, employers must:
a. make reasonable efforts to gather relevant facts as they
apply to the particular case in question~
b. apply scme reasonable decision rule whic~ is not arbitrary or
discr iminator y;
c. make an honest effort to make a decision between possible
alternatives;
d. ~ct consistently with the decision that was made.
Although both the Kuyntjes and O'Brien cases involved requests.for
cc~passionate or special leave due 'to inclement weather preventing
a%tendance at work, the O'Brien standard of review has been adopted
expressly in Gillies and Ministry of Correctional Services 672/86 and
impliedly in Latulippe and Ministry of Correctional Services 1000/86, both
of which invglved requests for cc~oassionate leave to attend the funeral of
a person not specified in the bereavement leave provisions. In the instant
case, the Board finds that Mr. Murray investigated .the merits of the
grieVOr' s claim appropriately.
To assess what sort of facts are relevant to consideration of a claim
for c~mpassi0nate, or special leave tO attend a funeral of someone not
included in the bereavement leave provisions, it is helpful to bear in mind
the purpose of this article. In Jackson and Ministry, of Correctional
Services 487/83, the panel approved at p.12 a Comment made in the earlier
Elesie case at p.6 that "compassionate leave is granted to a~ employee when
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he or she is in a situation deserving of sympathetic treatment". However,
the panel went on to distinguish compassionate leave frc~ bereavement leave
and found no exceptional circumstances raised by the facts Of the case to
warrant the grant of cc~passionate leave to attend the funeral of someone
that the parties to the collective agreement recognized as not being close
enough to justify the grant of paid bereavement leave. Tae Board noted that
other employees similarly circumstanced to the grievor had been granted the
day off, but refused paid leave.' In Jackson and Ministry of Correctional
Services 146/84, ,the same grievor sought compassionate leave to attend the
funeral of h~s wife's grandmother, a relation not within the scope of the
bereavement leave provision, numbered Article 48 at that time.
Ccmlpassionate leave was denied, but the grievor was granted the time off
either without pay or by using a day from his bank of unused time off. in
lieu of holidays worked. At p.4, the Board observes:
Furthermore, the parties have put their minds to
the issue .of bereavement leave and had agreed to the
provisions of Article 48 which deal with this matter.
What Mr. Jackson has attempted to do both in his earlier
grievance and in this one is to use Article 54 to amend
and extend the provisions of Article 48. We agree that ~
the Raployer is entitled to ~esist such efforts, and to
grant bereavement leave under A~ticle 54 only in
extraordinary circumstances.
Counsel for the Unic~ emphasized the' importance to'
the grievor of time off to attend the funeral and serve
as pall bearer. We agree. The fact is that the
f~ployer accommodated his need, albeit not under Article.
(emphasis added)
This approach has been followed consistently in Lacourse and Ministry
of Correctional Services 1273/84; Latulippe and Minist'ry of Correctional
ll
Services 1000/86 and Gillies and Ministry of Correctional. Services 672/86,
all of which involved requests fo~ compassionate leave to attend the funeral
of a person not specified in the bereavement leave provis£on. In Sahota and
Ministry of Correctional Services 2454/87, the grievor requested
compassionate leave to attend the funeral of a friend and neighbour, for
whom he had agreed to act as pallbearer. Tae Board found that management
had failed to investigate the circumstances of the grievor's reque.st.
"Serious and diligent enquiry" was required by the Ministry's guidelines~ in
respect to the exercise of discretion in considering the compassionate leave
· provision. Having so found, the Board noted that in similar circumstances
another employee had been granted compassionate leave. Given that there was
insufficient evidence adduced to Justify a different result for the grievor,
the Board allowed the grievance and granted four' hours' Of compassionate
leave as requested.
In the instant case, it is clear that management officials at Region 16
were endea~ouring to effect a change to the way in which Article 55 had been
administered in the past. In his testimony, Mr. Murray articulated the
criteria which he took into account: the operational needs of the
workplace, the importance of the request to the grievor and the hardship
caused by denial, and the urgency of the obligation. It is clear on the
evidenCe that Mr. Murray approached the issue from the viewpoint that
c0mpassionate~leave would be granted to attend the funeral of a person not
within the scope of the bereavement leave provision only in exceptional
circumstances, as contemplated' in the Jackson case. The Board finds that
Mr. Murray was not acting unreasonably or in a discriminatory fashion by'
denying the gr'ievor's request, despite the past practice of granting such
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requests, it is clear from ~the evidence that the past practice had resulted
frc~ a failure to exercise discretion. ~nere were no grounds raised before
this Board upon which to find. that the ~mployer was precluded frc~
exercising its discretion in this instance to deny the grievor compassionate
leave. In fact, the ~aployer attempted to accommodate the grievor's request
in a sympathetic manner by granting the time off and suggesting ways in
which that might be accomplished without loss of pay. Tnis Board finds, as
other Boards have found in comparable circumstances, that management was
entitled to exercise its discretion in the manner it chose.
While the Board finds that ~he criteria Mr. Murray took into account
were relevant and reasonable, it was apparent that the process of
identifying criteria relevant to such an issue was in its infancy. It might
well enure to the benefit of the parties and the employees-if a' c~ncerted --
effort were made to articulate the approach to be taken to compassionate
leave and to communicate those guidelines for the exercise of discretion.
·
In conclusion, for the reasons outlined, the grievance is di~issed.
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~ated at I~ron~o _ this ~Qrh day of M~¢~ , 19S~.
Jane E. ~rich Vice-Chairperson
J. McManus M~be r
1. COwan . -- Me~ber
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