Loading...
HomeMy WebLinkAbout1989-0571.Ford.90-02-01 ~' ONTARIO EMPI. OY~S DE LA COURONNE CROWN EMPl. OYEE$ DE L'ONTARIO · GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WE$~ TORONTO, ONTARIO. MSG 1Z8-SUITE2100 TELEPHONE/T~I,~PHONE 180, RUE DUNDAS OUEST, TORONTO, (ONTARIO} MSG iZ8. BUREAU 2100 (416) 598-0688 571/89 IN TIlE MATTER OF AR ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between= OPSEU (Do Fo~d) Grievo~ - and - The Crown in Right of Ontario (Ministry of Transportation) Employer Before= A. Barrett Vice-Chairperson I. Thomson Member G. Mtlley Member For the Grievor: L. Rothstein Counsel Gowling, Strathy & Henderson Barristers & Solicitors Fog the ~lOYer: B. Smeenk Counsel Wtnkler, Filion and Wakely Barristers & Solicitors Hearing: November 9, 1989 This grievance concerns the interpretation of Article 29.1 which reads as follows: LEAVE WITHOUT PAY "Leave-of-absence without pay and without the accumulation of credits may be granted to an employee by his Deputy Minister." The grievor is'a Maintenance Mechanic II, employed at the time of the grievance as a sign erector on highways in the Huntsville district. He is also president of the union local 317. On May 23, 1989, the grievor made a written request to his supervisor, Mr. Phillips, for a nine day leave of abseDce from June 18th to June 29, 1989, to attend a tra{ning school on health and safety which would qualify him as an instructor in health and safety. The course was offered ak the union-managed Workers Health and Safety Centre which is an agency of the Workers' Compensation Board. The course was to be largely finance~ by the Workers' Compensation Board, via the union, but the g~ievor asked the Ministry to finance the small deficiency between the amount of his "scholarship" and his regular pay. The leave was refused by Mr. Phillips after consultation with Mr. Authier, the district engineer, in a letter dated the same day which stated in part: - 2 - "Mr. Authier and myself discussed yOur request and do not feel that it is a benefit to M.T.O. for you to have the course. Therefore, if you wish to attend this course, you must re-schedule your vacation to the dates of June 18, 1989 - June 29, 1989. Also, the Ministry will not accept any costs derived from the taking of this course should you decide to re- schedule your vacation." In a responding letter two days later, the grievor expressed his disappointment at management's rgsponse and declined to change his vacation (then scheduled for the last week in'July and the first week in August); and changed his request to a leave without pay. Next, on May 31, 1989, Mr. Authier responded"to that letter, in part, as follows: "While I find it commendable that you have a desire to pursue training that would benefit you in the area of Occupational Health and Safety', I can foresee no direct benefit to the Ministry that would be derived from such training. You are working as part of one of our sign erection crews this summer; an assignment that you agreed to accept when it was offered to you this Spring. This assignment was made because of a backlog of high priority work that must be completed through the stu~mer. A one-week's leave of absence was approved in April to allow you to a=tend the 1989 O.P.S.E.U. Spring School. You have requested an additional week of leave in August to complete this training. While I can understand your desire to take advantage of an opportunity the Union is offering you, I feel you also have an obligation to your job duties that will not afford any additional'time than what has already been granted you and what your position with the Union will demand through the summer." The matter was taken higher when Mr. James Clancy, the union president, wrote to the Deputy Minister on May 25, 1989, a letter which was received in the Deputy Minister's office on May 31st. Mr. Clancy stressed the benefits of the course, and in particular, took issue with the employer's statement that the course would not provide any benefit to the Ministry. The Deputy Minister responded on June 15, 1989, stressing the impairment to operational requirements which would have been occasioned by the leave, and noting that the employer had on numerous occasions granted the g~i~vor's requests ~or leave without pay for union business when operational requirements were not impaired. The Deputy M~nister also noted that although some employees are selected for health and safety training programs by a joint committee of union and management, the grievor was not one of those persons who baa been selected. We heard considerable evidence at .the hearing relating to two issues: 1) The validity and value of the course; and 2) The oDerationa! requirements of the sign erection crew at the relevant time. In summary, the course would have qualified Mr. Ford to train other employees to become trainers of oucupational health and safety. It is not part of Mr. Ford's job description to perform this function in the workplace. In general, the employer says that while it is obviously valuable to have employees well versed in health and safety matters, other employees and management personnel are directly charged with these duties of training personnel. With respect to the operational requirements, it was undisputed on the evidence, much of it from the grievor himself, that the prime Period ~or s~gn erection is April. through mid-December in each year. In the Sprin~ of 1989 there was a very large back-log of signs to be erected during the season. Mr. Authier;who had been transferred to the Huntsville district as its engineer in October, 1988, was determined to eliminate or at least substantially reduce this back-log during the 1989 season. In 1988 the sign erection crew consisted of a forema~ ~nd two maintenance mechanics with one truck. Fortu/tously, in the Spring of 1989 a second truck became available for at least a few months and it was determined that two crews could be But to work. Accordingly, an unclassified staff and a seasonal worker were hired to work with the three existing crew members. 'The foreman can held ou% on the crews occasionally when needed, but he has many other duties which mean that he cannot be a regular crew member. It requires two people, at least, to erect a sign. Therefore, if one member of a two-man crew is off work, the crew and the truck are out of commiss{on. Th~ remaining man may join the first crew and add somewhat to its productivity, but not 50% which would have been his value on a second crew. The grievor had already requested and been granted a one-week leave for union business in late April, 1989, and was expected to receive a further one-week leave in August for the same purpose. (The August leave had not formally been confirmed because a new supervisor was soon to arrive and it was felt the decision should be made with his input. It was subsequently approved). Also, Mr. Ford had two weeks vacation scheduled ~or the last week in July and the first we~k. in August. Thus, the deployment of a second crew during those four weeks would not have been--w~able. A further two week leave would have had a similar effect. Documents were produced at the hearing showing a comparison of actual to planned productivity for accomplishment from April 1, 1989, to October 13, 1989. By May 26th, only 8.3% of the total goal had been accomplished whereas 20% would have been the appropriate figure. B~ October 13th, 80% of the work should have been accomplished, but only 39.8% had been done. Article 29.1 of the collective agreement is framed in a way which appears to give management an unlimited discretion in the granting or denial of leaves of absence. In fact that discretion must be exercised in a non-discriminatory and reasonable manner, as many decisions of this Board have held. We adopt the guidelines for the proper exercise of this discretion as delineated in Ku~n%~es, GSB 513/84, at page 16: ". · . Arbitrators must ensure that decisions are made within the con~ines of certain minimum standards of administrative justice. Those administrative law concepts relating to the proper exercise of discretion include the following considerations: 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 rejected." Those principles have been adopted in numerous Grievm~e Settlement Board decisions since, Ko, ever, a word of warninq about too rigid an application of those principles was sounded in ~ailloux GSB 0087/85, where again the panel adopted the KuYntdes principles, but added: · · . We do have concern, however, lest any confusion evolve from the reference to administrative law standards as they may relate to the scope of arbitral review· That concern is prompted in part by the position of the Union in this case, the thrust of which is that in a grievance of this kind the burden is upon the Employer to establish that it has conducted a full investigation, has considered all relevant material, and has exercised its discretion in keeping with the standards that govern the decisions of persons exercising statutory powers of decision· In our view the approach urged upon this Board by the Union risks unduly judicializing decision making in the day to day management of the Employer's operations. Acceptance of the Union's position would be perilously tantamount to requiring the Employer to conduct an inquiry, on quasi-judicial lines, every time a request is made by an employee which requires the exercise of the Employer's discretion. The consequences of such an approach should not be minimized. The exercise of statutory powers of decisions and the making of decisions by an employer in the Contractual framework of a collective agreemen't in the day to day operation of an enterprise, be it private or public, are two very different things· The Dro~pect of boards of arbitration striking down management's decisions on the basis that an officer of management failed to conduct a sufficiently thorough investigation, asked himself or herself the wrong question or misdirected himself or herself in some material way, to borrow the well-worn phraseology of administrative law, risks converting a collective agreement ~nto an instrument for management by arbitrators. In our view such broad powers of review should not be found unless they are supported by the clear terms of a collective agreement. In a case such.as this the legal or evidentiary burden is upon the Union. It must establish,, on the balance of probabilities, that the Employer has failed to exercise its discretion in a manner that is untainted by arbitrariness, bad faith or discrimination. In considering that question a board of arbitration must not lose sight of the fact that the grievor is the party with the best first-hand knowledge of his own circumstances, including those facts which would justify the application of the Employer's discretion in his favour. The grievor is entitled to have the merits of his case fully considered. By the same token, however, it is he who bears a commensurate responsibility to make all pertinent facts known to the managerial decision maker." The union argues here that the employer by focusing its attention on the lack of benefit to the Ministry of the course was basing its ~efusal of the leave on an irrelevant consideration. Counsel says that many, if not most, leaves of absence Without Day do not benefit the Ministry. Although the employer should enquire into the merits of the leave, that enquiry should only be made to determine its legitimacy, not it~ value to the employer. Once the employer has taken into account an irrelevant consideration, the exercise of its discretion is fundamentally flawed and its decision must be set aside. The union argues further that any leave at any'time reduces productivity and therefore, the operational requirements should not be given pre-eminence. We do not agree with the union's submission. The employer may and should enquire into the merits of the leave application. Sometimes the request may be spurred by an urgent personal,~%~atlon of the employee and a compassionate view must be taken of his or her circumstances even though productivity may be impaired by the absence. However, where the leave is requested to take a course, which we learned is available four times a year and offers no direct benefit to the employer, and where other leaves had been granted t-o that employee for educational purposes that were also of no direct benefit to the employer;and where operational requirements in this particular unit meant that the griever's absence would be sorely felt, we do not f~nd it inappropriate that the employer considered the value of the course to the Ministry as one factor in assessing whether or not to grant the leave. An employee has no automatic right to a leave of absence without pay simply because he has a good reason for it. Even mandatory leaves of absence for union business as set out in article 28, are subject to operational requirements determined by the employer. In this case we have no doubt that there were genuine o~erational considerations taken ~nto account in management's exercise of its discretion. Sometimes management will over-ride the operational requirements in circumstances, for instance, where the educational course taken would be of continu~n~ bene. f~t to it, or conversely, where although the course would be of no benefit to the employer, the absence Would not impair the operation. As an example, if Mr. Ford had requested the leave during the mid-December to end-of- March slow period, operational requirements would not have been as weighty and the ~ack of benefit of the course to the employer would have been similarly less important. Conversely, in busier times the merits of the leave must be greater in order for the employer to exercise its discretion in favour of the employee. Fundamental to the employer-employee relationship is an agreement that: a) the employer will pay the employees salary and benefits on a regular basis: and b) that the employee will attend for work on a regular basis unless he is unable to do so due to illness, etc. Any request for time off work should reasonably be assessed ~n view of operational requirements first. Sometimes operational requirements will take a back seat to compassionate considerations, but where the reason for the leave is to take a self-improvement c~u~se, and the employer offered to reschedule the employees vacation to allow his to take advantage of the course if it was of sufficient importance to him, and where the employee refused to take advantage of the offer; then the employer is entitled to put its operational requirements first. On the evidence, we find that the employer exercised its discretion in this case reasonably and without discrimination or bad faith. Accordingly, the grievance is dismissed. DATED at Toronto this Ist day of February- , 19q0. A. BARRETT, -Chairp~ ..~ ~ ADD~ND~MATTAC~EDMember G. MILLEY, Member AnU t UUM 57]Y89 D. Ford {~i ni stry of I ~on~ur with ~he resul~ in ~his case because ~he evidence was =hat "operational considera~ions" gui~e~ Management's exercise of its ~iscre=ior I warn satisfie~ on =he evidence that ~he neede~ Mr. Ford a= work in June 1~89 ~o ~eal with Zhe very large back-log of signs =o be ere=ted. I do no~ agree however =ha~ i~ was approDria~e for the to consiaer whether =he course Mr. Fora wan=ed =o a~=end wam of benefit ~o ~he Ministry. The leave withou~ ~ay under Article 29. 1 of ~he collective agreemen~ is a benefi~ prOvideS ~o ~he employee un,er ~he collective agreement. ~ile it may be a ~iscretionary henefi~ i~ is never=heless.a Benefit ~o the employee, no= ~o ~he employe~. The leave of absence for an urgent personal matter often refer~ed to as a compassionate leave is g~an~ed unde= ~his same article. Tha~ leave is clearly of no Benefit to ~he ~nis=ry employer. In my view leave requests ~or compassionate reasons, for a course of. study or ~or any o~her reason shoul~ be ~rea~ed =he sams. The guiaelines from ~he K~nt~es case (G.S.B. 513/84) shoul~ be followed: "1. The decision mus~ be made in good faith an~ ~i s cfi mi nazi on. 2. I= must be a genuine exercise of discretionary power, as o~posed =o rigl~ policy a~herence. 3. Consi~era~ion mus~ be given =o ~he merits of indivi~ual applica~ion under review [=his considera~ion as I understand i~ is a co~i~era~ion of ~he legitimacy of ~he re~ues~ insofa= as. the individual applican~ concerne~ an~ woul~ no= in~lu~e any consideration of ~he "merits" of th~ applica~ion insofar as the way which i~ 'might henefl~ =he e~ployer. ] 4. Ail relevant fauts mus~ be consiaered and conversely irrelevant consideration mus~ be rejected. [Benefit of ~he leave ~o ~he employer i~, in my view, an ir=~levant co~ideration which mus~ be rejec~e~. ]" Notwithstanding 2he above concerns I am con~ent =ha2 the operational considerations guide~ ~he employer in this case and Justified =he denial of 2he leave re~es~. Fo= ~ha~ reason concur with =he majority.