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HomeMy WebLinkAbout1989-1099.Arora.90-07-03 ONTARIO EMPLOYES DE LA COU'RONNE CROWN EMPLOYEES DE L'ONTARIO · GRIEVANCE C,OMMISSION DE S~FFLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, TORONTO, Ot~TARJO, NISG 1Z8 - SUITE 2~,~0 TEL~PHONE/T~'L.~PHONE 180, RUE DUNDAS OUEST, TORONI'O, (ONTARIO) MSG 1Z8-BUREAU 2100 (~11~) 598-0688 1099/89 IN THE HATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING'ACT Before THE GRIEVANCE SETTLEHENT BOARD BETWEEN: OPSEU (Aro*ra) .. Grievor -and - The Crown in Right of Ontario (Ministry of the Environment) Employer - and - BEFORE: .., $.~. Stewart ~ice-¢hairperson .... d-~ McManus Member D. Daugharty Member FOR THE I. Roland GRIEVOR: J. Martin Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE B. Adams EMPLOYER: Staff Relations Advisor Staff Relations and Safety Ministry of the Environment REARING: January 4, 1990 DECISION The grievor,"Mr. S. Arora, is employed as a maintenance electrician with the Ministry of Environment at the Lakeview Water Pollution Control plant in Mississauga. He grieves that he was improperly denied special or compassionate leave with pay between May 26, 1989 and June 23, 1989. -To a large extent, the relevant facts are not in dispute. Mr. Arora has been employed as a maintenace electrician with the Ministry of Environment since July, 1985. On May 21, 1989, Mr. Ar0ra's father died in New Delhi, India. It was a sudden and unexpected death, resulting from loss of blood after a fall. -Mr. Arora left for India on May 23, 1989, the delay resultihg fr~m 'the' necessity to renew an expired passport. Mr. Arora obtained the first available flight to New D~lhi, which was through Frankfurt. After a 24 hour flight-Mr. Arora arrived in New Delhi. His two brothers, one older and one younger, both of whom also reside in Canada, travelled to India as well. Mr. Arora has two sisters, both of whom reside in India. Mr. Arora testified that because 'of his mother's serious health problems he felt that it was of critical importance for her to return to Canada with him., He had previously obtained authorization for both his .mother and father to live in Canada. Mr. Arora Stated that his mother needed constant care and ~hat there was no one in New Delhi who .could provide it to her. One of his sisters Lives approximately 100 miles outside of New Delhi. While an6ther sister lives in New Delhi, Mr. Arora stated tha% in his religion it 'is not considered appropriate for a daughter to care for her mother. His mother did not have a telephone and his 'sis=er did not live close by. Mr. Arora stated that he attempted to persuade his mother =o return 'with him from the time that he arrived in New Delhi. He had a return flight booked on June 10, 1989 but stated that his mother refused to leave at this time. She initially wanted to wait for one year but eventually she was persuaded %o leave al%er one month. Mr. Arora booked the first available fligh~ leavin'g after a month from his fa%her's death. This flight left on jUne 23, 1989. one of Mr. Arora's brothers returned with him and his mother. His Other brother was injured when he was in India and he returned to Canada on June 17, 1989. During his time in N. ew Delhi Mr. Arora was involved with religious ceremonies to commemerate his father's death and in %he.transfer of title of his parents' home. Mr~ 'Arora's father was cremated on the day of his death. On May 25, 1989 the family commenced a thirteen day Hindu ceremony which required the family to stay in the home. 3 After June 2, 1989 the family was able to leave the home. On the seventeenth day after the death there was a further religious ritual. Mr. Arora acknowledged that he. is not actively involved in the practice of his religion in Canada but stated that his participation in the religious rituals at the time of his father's death was an important family obligation. Due to =he necessity of remaining in the home during the first thirteen days Mr. Arora was unable to c~nmence the work' necessary for the transfer of the title to his parents' home. Mr. Arora stated that his sisters were unable to deaI with the matter. He also explained that his younger brother was not responsible and that his older brother wished to sell the property. As a result, he was the only person =hat his mother trusted to do the work necessary for the transfer of the property... The transfer ~of the property .was completed on June 22, 1989, the day before they retur, ned to Canada. Upon his return to work, Mr. Arora wrote a letter to his supervisor requesting special or compassionate leave. Mr. Arora did not specifically request bereavement leave, however he stated that his supervisor asked him to sign a memorandum requesting three days bereavement leave and that he did So. His period of absence was allocated to bereavement leave, vacation credits and an unpaid keave o~ absence. 4 Mr. Arora exglained that he has been supporting his parents for the last fifteen years. On one occasion his parents came to stay in Canada for six months and resided with him. Mr. Arora stated that his two brothers have provided only nominal support. Mr. Arora's mother had a heart attack in August' 1988, and she also suffers from diabetes and blood pressur, e Problems. Since returning to Canada ~fter her husband's death, she has resided with Mr. Arora and his family and he has continued to support her'. Mr. Arora. stated that he purchased a hc~e last year and that he has a large mortgage. He has two school aged chidren. His wife is employed outside of the h~e. Mr. D. 'Lewis, superintendent at Lakeview, is the peron who made the decision' that Mr. Arora would not be granted special or compassionate leave. Mr. Lewis stated that he considered the request pursuant to Article 30.1 and Article 55 of the Collective Agreement, the relevant portions of which provide as follows: 30.1 Leave-of-absence with pay may be granted for special or compassionate purposes to an employee for a period of: (a) not more than six (6) months with the approval of his Deputy' Minister; ... 55.1 A Deputy Minister or his designee may grant ,an. employee leave-of-absence with pay for not more than 5 three (3) days in a year upon special or compassionate grounds .' 55.2 The granting of leave under this Article shall · not be dependent upon or charged against accumulated credits. Mr. Lewis testified that after receiving the request from Mr. Arora he convened a meeting with the gri~vor, two Union· representatives and a human resources consultant from the Ministry. The purpose of the meeting was to ascertain the facts relevant to the request. Mr. Lewis was present when Mr, Arora testified and he stated that he was familiar w:~th all of the facts referred to,by Mr. Arora in his testimony, with the exception that he was unaware that Mr. Arora's parents lived with him in 1979, Mr. Lewis testified that after the meeting he reviewed the information provid, ed.~ to hi.m and inquired as to h'ow other requests for special and compassionate leave were treated. .Another employee's father had died· in Italy and his request for paid special or compassionate leave was denied. Mr. Arora had made a request for special or compassionate leave in 1988 when his mother had a heart attack and this request was denied as well. Mr. Lewis stated that after reviewing all of the evidence he concluded that Mr. Arora's decision to remain in India was a volun.tary decision and that there were other sons and' daughters there that could have attended to the necessary family matters. He referred to the fact that Mr. Arora was granted ·bereavement leave, Mr. 6 Lewis stated that he felt that special or compassionate leave would have been appropriate if the grievor was the only person availabl'e to deal with the family ma%rets arising upon his father's death but as Mr. Arora's two brothers were also present in i~dia and he had two sisters residing there, he did not feel that' the grievor was the only person who could have attended to these matters.. In essence, the reason for his denial of Mr. Arora's request was that it was his conclusion that Mr. Arora's presence was not necessary but, rather, that it was a voluntary decision of Mr. Arora to remain in New Delhi to at.tend to the family ma%ter~ and participate in the religious ceremonies. In cross-examination, it was pointed out to Mr.' Lewis that in his reply to Mr. Arora denying his request for paid leave he referred only to Article 55 of the Collective Agreement and not to Article 30. Mr. Lewis maintained that he reviewed and considered both provisions of the Collective Agreement after receiving the request from Mr. Arora. He acknowledged that he was not aware of all of the details Of the request for special and compassionate leave that involved the employee whose father had died in Italy, although he was involved with %he earlier request made by Mr. Arora for special or compassionate leave which was denied. Mr. Lewis agreed with Mr. Roland that Mr. Ar°fa is 7 to be commended for taking on the obligation of caring for his mother and further agreed that Mr. Arora's circumstances were deserving of sympathy. He also stated that his understanding of "nominal" in terms of the monetary support provided, by the'grievor's brothers to his parents was that the support "could be substantial - that they gave what they could afford". In his submissions, Mr. Roland argued that the Employer's decision to deny the request for special or compassionate leave was not in accord with the principles required for the proper exercise of diretion in such cases. Mr. Roland referred to the decision' in C~rvalho 821/88 {Kirkwood) where, at p. 7, the following statement is made with respect to the granting of special or compassionate. ' ' leave: -- The essence of co~passionate leave is that the employer is making a judgmental decision to not deprive an employee financially for circumstances which evoke sympathy or compassion for the individual. There are no limitations or requirements which must be met under the terms of the collective agreement before the leave is granted ... there does not need to be unforseen or emergent circumstances for the leave to be granted. The decision goes on to refer to the principle expressed in many decisions of this Board that the role of the Board in such cases ih not to determine the correctness of the d%~i~sion but, rather, .to ensure that the decision is reasonable. The decision then goes on to state: 8 Although it is not an absolute right of the employee to have compassionate leave, if compassionate leave is to have any meaning, the employee can show a legitimate reason for its request, and can show a reason for compassion, the onus is on the employer to show why the facts do not support the granting of the leave such that its discretion should not be given in the employee's favour. In that-case the grievance was allowed as it was concluded that the employer had not canvassed, the facts in a reasonable manner prior to making the decision to deny the request for the leave of absence. Mr. ~land argued that the employer had failed to establish a justification for the denial of the leave request in this case. He submitted # that the requirement that the person seeking leave must be the only person who could provi.de the necessary service Was not a reasonable requirement and was an unduly narrow test. Mr, Roland also referred the Board to the decision in Freeman 87/80 (Weatherill), where a grievance, relating to the denial of a request for special leave was also upheld. In that case, the grievor requested special and compassionate leave to deal with matters arising from her father's death in Saskatchewan. Her request for paid leave was denied on the basis that her attendance was not "necessary". It was the employer's conclusion that the grievor's attendance was not necessary because the situation was not an emergency that was beyond the control of the . employee and was not one which the employee could 9 .make no other arrangements to cover. The evidence established that the grievor's attendance at the reading of the will 'was not mandatory but that it Was important for the grievor to attend and deal with her father's estate while she was in Saskatchewan.' The Board concluded that the grievor had been unreasonably denied compassionate · leave and stated the following at While it was not in fact "necessary" from a very strict point of view that the grievor have remained in Saskatchewan following the funeral, we are con- vinced, having regard to the circumstances and the' grievor's own evidence, that she herself believed that such attendance was necessary. In this respect we would refer to certain comments made by the Board in the Elesie case and with which, with respect, we agree. One is that article 16.1 provides for' "compassionate" leave, not "emergency" leave', and that compassionate leave is granted to an employee · when he or she is in a situation deserving of sympathe-. tic treatment. Another of course is that while the Board must show deference to the exercise of managerial discretion under article 16, and not decide on the "correctness" of that exercise when the issue is one of reasonableness, it should not construe "reasonable" to mean "any possible reason". In terms of the criteria applied in the instant case we do not consider it reasonable to construe "necessity'~ as "absolute necessity" · The Board concluded =hat on the employer's own criteria, reasonably construed and applied, the grievor was entitled to the exercise of discretion in her favour. Mr. Roland argued that the same considerations applied in the case at hand. He argued that even ·accepting the employer's criteria that Mr. Arora would have to have been the only person who could have provided the necessary support and that his presence would have to have been compulsory rather 10 than voluntary in order for leave to have been granted, Mr. Arora's situation was one in which, as a practical matter, big.attendance was necessary. The only realistic alternative from the point of view of his mother's health was for her to return to Canada with him. It was Mr. Arora, not his brothers and sisters, who supported his parents and .with whom his mother came to reside. As well, of his siblings, it was only Mr. Arora who, as a practical matter, was able to carry out the transfer of title to the property. Mr. Roland also argued that' Mr. Lewis improperly fettered his d-iscretion by referring .to previous instances where leave had not been granted. He noted tha% the previous,request made by Mr. Arora was of a significantly different nature than the one in this case and that Mr. Lewis was not' aware of all the details of the other case. He characterized the approach of Mr. Lewis as refusing to grant the leave in this case because it had not been granted in other cases and argued that this approach was analagous to a rejection of a leave request on a "floodgates" basis which this Board found to be improper in Sahota 2454/87 (Verity). Mr. Roland also made reference to the principle expressed in a number of decisions of this Board dealing with discretionary decisions of the Employer to the effect that the individual merits of a particular request must be assessed. He submitted that this had not been done in this instance but that, rather, the ·employer had simply refused to grant leave because it had not done so in other instances. As well, it was argued that Mr. Lewis' reference to the fact that 'Mr. Arora received bereavement leave under the Collective Agreement was an irrelevant factor as bereavement leave did not preclude the granting of special or compassionate leave. On behalf of the Employer, Mr. Adams argued that the evidence established that Mr. Lewis had considered all relevant factors with respect to Mr.. Arora's request and that he. had exercised his discretion to den~ the re.quest for special or compassionate grounds in a fair and non- discriminatory manner. Mr. Adams submitted that it was incumbent on the grievor to establish unique special circumstances to warrant the exercise of the Employer's discretion in his favour. He argued :hat no such circumstances had been established and that the evidence supported Mr. Lewis' conclusion that Mr. Arora's attendance in India was voluntary. He argued that the Freeman case was distinguishable on its fac'ts as, it was submitted, the grievor there was faced with circumstances beyond her control· Here, it was argued, Mr. Arora volunteered to undertake the family responsibilities that resulted in his absence from work· Mr. Adams referred us to decisions of 12 this Board which point out the limits on the Board in, reviewing the exercise o'f a discretionary decision making ~ower. Mr. Adams also argued that it was appropriate .for Mr. Lewis to have examined how other requests for special or compassionate leave were dealt with in view of the Employer's obligation to ensure that such requests are dealt with fairly and without discrimination. Mr. Adams further argued that it was appropriate for Mr. Lewis to have considered the fact that bereavement leave had been granted to Mr~ Arora, as, in his submission, the bereavement leave provision of the Collective Agreement was negotiated to provide exhaustively for leave in all situations of bereavement. We will deal with the last point raised first. We do not agree with Mr. Adams' submission that the fact that an employee is entitled to bereavement leave precludes him from applying for and obtaining special or compassionate leave.. The provisions of the Collective Agreement that deal with special or compassionate leave do not specifically provide that such leave cannot be granted if the circumstances in any way relate to a bereavement. We note that special or compassionate leave was found to have been improperly denied in the Freeman case where bereavement 13 leave had been granted. In reviewing the decision to deny special or compassionate leave in this case we are mindful of the limitations of our review. As many decisions of this Board have noted, the Board's review of a discretionary decision such as the one in'this case is limited to ehsuring that the decision making process meets standards of fairness and reasonableness. The issue is not whether this Board would have reached the same decision if the discretion had been its tO exercise. Within these confines h~wever, we agree with the analysis se% out in the Carvalho decision ko the effect that if the clause providing for special or compassionate is to have meaning, there is an onus on the employer to establish an objectively reasonable basis for the denial of the leave once the grievor establishes circumstances which give rise to sympathy or compassion. The circumstances faced by Mr. Arora clearly support the conclusion that he is deserving of sympathy or compassion. This was acknowledged by the Employer. Accordingly, we must consider whether the Employer has established an objectively reasonable basis upon which to deny the request for special or compassionate leave. 14 After a careful assessment of the evidence and the submissions of the representatives Of the parties i= is our conclusion that even if we were to accept that the Employer's test of "necessity" is appropriate, it was, in fact, and as a practical matter,' "necessary" for Mr. Arora to be away from work to attend to family matters in New Delhi in view of his particular relationship to his parents and the nature o'f his mother's circumstances~ In reachin~ this conclusion we are mindful, as indicated above, that we must be cautious .to ensure that we are not overstepping the limited boundaries of the proper scope of review and engaging in assessing whether we are in agreement with Mr. Lewis' decision'. The question is whether Mr. Lewis' conclusion is one 'that can be reasonably suptx>rted by the evidence. It is our view that this case cannot be distinguished, from the. decision of this. Boar~ in the Freeman case. As in that case, Mr. Arora was not compelled to remain in.-India as a matter of law. However, given the needs of his mother, that according to the uncontradicted evidence before us only he was able or willing to assume, Mr. Arora's attendance in India to deal with the transfer of the property and bring his mother back to Canada was, as a practical matter, a necessity. In our view, a reasonable application of. the test invoked by Mr. Lewis, that is, that the attendance be. necessary rather than voluntary, can only support the conclusion that Mr. Arora's attendance was 15 necessary. While Mr. Lewis stated that he was aware of the facts that Mr. Arora tesified to it is clear that he was under a misapprehension as to the nature of the support that Mr. Arora's brothers had provided to their parents, and this may have been in part the basis upon which he came to %he conclusion that Mr. Arora's presence was not "necessa~". However, as indicated above, in adopting the approach taken by the Board in the Freeman case, it is our conclusion that upon the reasonable construction and application of the. Employer's criteria, Mr. Lewis' conclusion that Mr. Arora's attendance was not "necessary" . is not supported by the evidence. Accordingly, we find that there has been a violation of the Collective Agreement arising from the denial of Mr. Arora's request for special or compassionate leave. ~?J,~In view of this conclusion, it is not necessary to address the' other arguments raised. We turn now to the mat:er of remedy. 'While there are some cases in which it has been decided that the appropriate result in cases where the employer has been found to have improperly exercised its discretion is for the matter to be remitted back to the employer, the Union's submission that the appropriate remedy in this case is the granting of the leave requested was not specifically challenged by the Employer. Considering this matter, as well as the fact that it is contemplated by both the governing legislation and the Collective Agreement that this is the stage at which these matters are to be finally resolved, it is our view that the appropriate relief is an order that Mr. Arora be granted paid special or compassionate leave for the period claimed and that his vacation credits be adjusted accordingly. We retain jurisdiction in the event that any difficulties arise in the Calculation of' compensation or otherwise in the implementation of this decision. Dated at 'Toronto, this 3rdday of July 1990 S. L. Stewart - Vice-Chairperson ' J. N~$ - M ember "~.Dtssent". (DtssenK to follow) D. DAUG~RTY - Member