HomeMy WebLinkAbout1989-1411.Smith.91-01-31 ONTARIO EMPL OY£S DE LA COURONNE
C RO WN EMP L 0 YEES DE L '0 N TARt 0
GRIEVANCE C,OMMISSION DE t
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
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1411/89
IN THE MATTER OF AN ARBiTrATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN OPSEU (Smith)
Grievor
- and -
The Crown in Right 'of Ontario
(Ministry of Correctional Services)
Employer
BEFORE: R.L. Kennedy Vice-Chairperson
J. C. Laniel Member
F. Collict Member
FOR THE K. Hughes
GRIEVOR Counsel
Cavalluzzo, Hayes & Lennon
Barristers & Solicitors
FOR THE J. Knight
EMPLOYER Counsel
Fraser & Beatty
Barristers & Solicitors
HEARING: March 14, 1990
July 11, 1990
September 5, 17, 19, 1990
AWARD
The grievance in this matter was dated October 2, 1989 and challenged the
denial by the Employer of a special six-month paid leave of absence requested by the
Grievor pursuant to Article 30 of the collective agreement between the parties. That
Article provides as follows:
ARTICLE 30 - LEAVE - SPECIAL
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, and
(b) over six (6) months upon the certificate of the Commission
and with the apprqval of the Lieutenant Governor in
Council.
The background circumstances, though dealt With exhaustively in the oral
testimony, do not seem to be in dispute in any material way and may be summarized
as follows:
The Grievor is employed as a Correctional Officer at the Burtch Correctional
Centre. Prior to the series of events that culminated in this grievance, the Grievor
might fairly be described as a conscientious and exemplary employee who had
excellent working relationships with his co-workers, representatives of management
and'inmates alike. His formal evaluations were consistently favourable. On April 6,
1989 at about 10:45 a.m. an inmate in one of the institution's units suffered a
massive heart attack and fell to the floor striking his head and causing serious
bleeding. An emergency code was called in the institution, and the Grievor was one
of those who responded to' the code. Shortly after the Grievor's arrival on the scene,
the injured inmate ceased breathing, and basic life support procedures were
instituted. The inmate was large and had a heavy beard, and this apparently
prevented the use of any mechanical adjuncts in connection with the performance of
cardio pulmonary resuscitation (CPR). The process proved most difficult because of
the inmate's condition, and in the course of doing the mouth-to-mouth resuscitation,
the inmate apparently convulsed frequently and regurgitated vomit, phlegm and
blood. The person doing the mouth-to-mouth resuscitation, therefore, could not
avoid contact with the inmate's bodily fluids. By all accounts on the evidence, it was
a particularly gruesome and messy incident, and it is undisputed that the Grievor
was a principal participant in the provision of care to the inmate. For a significant
portion of the time he was, as directed by the nurse, the one doing the mouth-to-
mouth resuscitation. However, it is o!~o clear on the evidence that there were at
least five other employees from the ranks of both management and the bargaining
unit actively involved in caring for the inmate. The other employee who gave
extensive mouth-to-mouth resuscitation during the time was a member of
management holding the rank of lieutenant. In addition, the patient care was
supervised by two nurses, who are employed in the institution. The Grievor
accompanied the inmate to the hospital in the ambulance, and there can be no doubt
that the Grievor's personal response to this emergency situation was in all respects
outstanding. At the hospital the inmate was pronounced dead, and in all likelihood
that result was predetermined before he hit the floor.
In the days immediately following the incident, the Grievor expressed serious _
concerns as to the way the emergency had been handled within the institution and
in particular took exception to what he believed had been. the conduct of a member
of management present on the scene. The Grievor has a very distinct and clear
recollection that one Sergeant Ryan was specifically requested by the nurse to
relieve Lieutenant Williams in the performance of mouth-to-mouth resuscitation. It
was the 'Grievor's evidence that Sergeant Ryan specifically refused to get involved,
made a joke of it and left the room. Sergeant Ryan has emphatically denied those
allegations from the outset. However, from immediately after the incident and
continually to this day, the Grievor has consistently pressed for a meeting of all
people involved in the emergency fn the context of what the Grievor described as a
'%ull session" in order that the whole matter could be rehashed and everyone's
concerns aired and t21ked out. The Ministry has issued written policies and
procedures concerning sudden death or suicide by inmates, and those provisions
provide the following:
In recognition of the fact that an inmate's death may have a traumatic effect
on those persons involved in the incident, appropriate counselling and follow-
up shall be made available to all. involved staff and inmates.
It was the Grievor'S belief that the incident would immediately be followed with a
debriefing session, and both he and the Union have persistently pressed for
something· of that nature. We will comment later in this award with respect to the
Superintendent's reasons why in all the circumstances such a procedure was not
practicable. We would only comment at this point that the Superintendent had a
most difficult situation to deal with, and the positions he took with respect to the
investigation of the incident were in our view reasonable.
There can be no doubt based on the evidence which we heard that the
incident had a devastating effect on the life of the Grievor. There was, of course, an
immediate concern as to the pqtential of contact with AIDS or other communicable
diseases. While initial tests were negative, this aspect of the matter continued to be
a growing concern to the GrievOr because of the long-term potential that the virus
can be dormant for a long time and then appear. The Grievor still to this day has
that concern in the back of his mind. The Grievor further dwelled in his mind on
what he perceived to be the unprofessional conduct of Sergeant Ryan and pressed
for the debriefing session involving all representatives of management and the
bargaining unit who had been involved in the emergency. The Grievor developed a
perception that management was not conducting a proper investigation into the
incident, was covering up the inadequate performance of Sergeant Ryan and others,
and was failing to respond to his own concerns and problems that resulted from the
incident.
In the event of an inmate's death in a correctional i,stitution, an inquest
must be held. That inquest was initially scheduled for May 10, 1989. Some time
prior to that date, the Superintendent met with the Grievor and the local President
of the Union. That meeting discussed the Grievor's concerns with respect to the
handling of the emergency in general and the conduct of Sergeant Ryan in
particular. The Grievor apparently became somewhat agitated when he took it that
someone was calling him a liar, and he insisted that Sergeant Ryan be brought into
the meeting. It was the view of the Superintendent that such a procedure would be
counter-productive and that he did not want a confrontation at that point in time.
The Grievor at that point stated that if Sergeant Ryan was not going to come in, he
was going to contact the Union lawyer and pursue the matter through that avenue.
Later the Grievor submitted a request to the Superintendent that the Grievor
be given standing at the inquest, and the Superintendent responded that only the
coroner could do that. The Grievor did subsequentl~ through counsel, seek
standing in the inquest, spec~cally so that he could pursue his concerns with
respect to Sergeant Ryan and what he perceived to be an attempt to cover up
improper procedures. Sergeant Ryan, in turn, also retained counsel to defend his
position in the face of those allegations and, as a result, the inquest could not
proceed on May 10, 1989 as Scheduled. It did proceed on September 12 and 13,
1989. After extensive discussion among counsel for the various parties involved, it
was agreed .that the allegations with respect to Sergeant Ryan would not for~ part
of the inquest, and the particular concerns of the Grievor were in l~is.view,
therefore, not addressed. The inquest concluded that death had resulted from
natural Causes, found no wrong doing on the part of anyone at the institution, and
commended all staff directly involved in rendering first aid and CPR to the
deceased. Recommendations were made, however, as to ndditional training, both in
the procedures of CPR and in the use of mechanical aids, and that counselling
should be offered irnr~ediately to those directly involved.
In the three months following the incident, the Grievor's physical and
psychological health deteriorated. As previously stated, his mind dwelled on what
he perceived to be deficiencies in the conduct of represen~tives of management and
what he further considered to be an attempt on the part of management to avoid a
proper investigation of the incident and to avoid management's obligation to provide
proper support and counselling for those involved. He had the overriding concern
about contacting AIDS, and this concern and the need to use a condom seriously'
affected his relationship with his wife. He had problems sleeping and had frequent
nightmares in which he relived the incident. He lost weight and experienced
problems with his memory. He became irritable and angr~ and his relationships
with his wife and children seriously declined. He found the work situation stressful
by reason of the ongoing contact with supervisors who, he perceived, had acted
unprofessionally, and his continued presence in the work place aggravated his
psychological problems. A co-worker stated that prior to the incident the Grievor
was good humoured, jovial and very easy to get along with. Subsequent to the
incident, the Grievor's character changed, and he became irritable, angry and
vindictive. He became very impatient with inmates, and his co-worker was very
concerned that a serious incident might be provoked. These symptoms and the
change in the Grievor's character were confirmed in the evidence of his family
physician who gave the opinion that the Grievor suffered an anxiety disorder arising
out of the April 6th incident. The doctor's diagnosis was that the Grievor suffered
from a combination of a situational anxiety and a post-traumatic stress disorder.
The diagnosis of situational anxiety was confhnned in the medical opinion of the
Grievor's psychiatrist, which is dated September 18, 1989. The Grievor saw his
regular physician on August 25, 1989, and at that time the doctor concluded that it
was necessary for the Grievor to be away from the work place as his continued
presence simply reinforced the effect of the original incident. The Grievor was,
therefore, absent on sick leave from August 28, 1989 for the next six months. At the
end of the six months, the doctor was reluctant to certify the Grievor as being ready
to return to work, but in view of the fact that the Grievor considered it a financial
necessity that he return, the doctor was prepared to give it a t~. The return to _
work has apparently been reasonably successful, and the Grievor has been able to
perform adequately, although he still retains considerable resentment with respect
to the way he feels he has been treated throughout the incident.
The issue to be determined on this arbitration is whether or not the
Employer's decision that the condition and the needs of the Grievor as previously
described did not constitute the special or compassionate purposes for which a
special leave of absence may be granted within the intent of Article 30 was a
reasonable decision in all the circumstances. In that context, therefore, what is
important is that the Grievor, in fact, believed in the legitimacy of his concerns and
complaints, and it is not necessary to determine to any great extent the actual
- 10-
merits of those issues. It was continually asserted by both the Grievor and Union
counsel that all that was sought on this arbitration was the appropriate
compensation of the Grievor for the period of his absence and that the Grievor was
not seeking vindication with respect to his views as ~o the improper acts of
management. Notwithstanding that position, however, the fervour of the Union
evidence and argument relating to the actual merits of the issues arising out of the
way in which the emergency was dealt with does, we feel, call for some balancing
comment as to the position of management.
Superintendent Morris was in a very difficult position. He knew that there
was to be an inquest as there always is in the case of death of an inmate. He was
cautioned by the police and Ministry counsel that he should not take any action
which might compromise the integrity of the inquest process or influence the
testimony potential witnesses might give on the inquest. He was, therefore, initially
relieved that the Luquest would follow reasonably soon after the incident itself.
However, in view of the issues that were raised by the Grievor and by the Union,
the inquest could not proceed as scheduled. Superintendent MorT/s, therefore, had
to balance the needs of the institution with his obligations in respect of the inquest.
There is no question that complete statements were taken immediately after the
incident from all people having any involvement in it. In addition, Superintendent
- 11-
Morris has had informal discussions w/th all those invoIved, including the nurses.
Counselling was available to employees who wanted it from clinical staff at the
institution and some employees utilized that form of assistance. Subsequent to the
conclusion of the inquest, employees were offered professional counselling from a Dn
Sihgh in Hamilton. The Union did not consider Dr. Singh to be an independent
source of counselling, and his services were, therefore, not used.
One of the expressed concerns of the Grievor and the Union with respect to
the conduct of the emergency code itself related to the fact that suction and _
ventilation equipment were present at the scene, but for some reason allegedly
unknown to the Grievor and the Union, they were not used. It may be noted thai
the inquest' verdict also made reference to the provision of proper equipment and
training in its use. Superintendent Morris explsined in his evidence that
correctional officers were not trsined in the use of any of the equipment that then
was in the institution and were not expected to make use of it. Only the nurses
were to use the equipment and the inmate's physical characteristics and heavy beard'
made its use impracticable. The ventilator equipment that was then available could
not be used by untrained personnel, although according to Superintendent Morris,
some free flow oxygen equipment has since been acquired and training given with
respect to its use. it would appear that Superintendent Morris is satisfied that there
- 12 -
was no equipment problem related to the conduct of the emergency procedures, but
it is also clear that particulars of why this is the case had not previously been. made
clear to the Union.
Another area 'in which the Grievor felt the system had failed at the time of
the emergency was in management supervision. The standing orders of the
institution provide for a chain of command in emergencies, primarily designed to
ensure the security of the institution. The senior officer present is in charge. The
Grievor took an unnecessarily rigid interpretation of how these rules should be _
implemented and failed to distinguish between the security aspects of the situation
on April 6th and the medical aspects. It was the nurses, not the staff of the
institution, who were properly in control of the patient care. The Grievor also felt
that more senior officers came on the scene and then departed without getting
involved. The explanation was that once they determined matters were under
control and that adequate supervision and direction were being given, they returned
to other duties in the institution.
With specific reference to the differences between the Grievor and Sergeant
Ryan, it had been Superintendent Morris' initial intention to have a meeting
involving those directly concerned to work it out. However, once it became an issue
- 13 - .
on the inquest, that no longer was an appropriate procedure. When asked in cross-
examination whether he considered that he had, in fact, resolved the l~yan issue,
Superintendent Morris responded that he had made no official finding with respect
to Sergeant Ryan. He stated, ~'Two say it didn't happen. Two say it did. I came to
the conclusion the issue could not be determined, bearing in mind the difficult
personalities involved, the Union/Management situation, and the stresses involved.
Any value in a debriefing session was lost .with everyone having their own lawyers."
Of those involved, we heard on the hearing only the evidence of the Grievor and
Sergeant Ryan. Such evidence as we heard, however, would indicate to us that _
Superintendent Morris cannot be criticized for the conclusions he reached as
reflected in his foregoing evidence. Based on our observations at the hearing, it
would be most unlikely that the Grievor would accept as valid any process of
debriefing that did not result in the vindication of his position. Sergeant Ryan in
his testimony expressed no reservations about his participation in any such process.
There/a one other interesting aspect of the ev/dence Chat should be reviewed
at this time. It was the evidence of the Grievor's doctor that in forming his views ns
to the factual circumstances, he relied solely on what the Grievor told him and
conducted no independent investigation. The same was true for the Orievor's
- 14-
psychiatrist. In describing the incidents that led to the Grievor's condition, tlhe
psychiatric report states as follows:
In essence, what transpired (according to Mr. Smith) is that others walked
away, and the nurse ps_n_icked when he was giving CPR to an inmate. The
inmate died and an inquest was held. Although the Ministry of Correctional
Services supported what he did, it is implying that he should not have
complained about others (he wrote to headquarters in Toronto) and that he
should forget it.
In a medical report to the Workers' Compensation Board dated November 7, 1989,
the Grievor's family physician described the incident as follows: _
Also surrounding this incident was a great deal of emotional trauma, namely
due to non-response of other workers and supervisors, in this emergency
situation.
In his oral evidence, the family physician stated in his examination-in-chief that on
the Grievor's initial visit to him following the incident the Grievor advised him that
he was the only person who resuscitated the inm__~te. Later in his evidence-in-chief~
in connection with an August visit, the doctor again repeated the statement to him
by the Grievor that the Grievor was the only one who attempted to do a
resuscitation. The doctor stated that at that time the Grievor felt alone in his
attempts without support from his fellow workers. In cross-examination, counsel for
the Ministry returned to the issue of how the Grievor had described the initial
- 15 -
incident with particular reference to the April and August visits. With respect to
the August visit, the doctor testified that the Grievor gave a more complete
description and that he described in more detail his own actions and the situation of'
the extent of blood and that he was the only one who attempted resuscitation
m~asures. The doctor was asked to read his notes, and he stated that his notes said,
"Fellow collapsed and I gave resuscitative efforts - only one of several officers there
who would perform the resuscitation measures." Later in cross-examination the
doctor stated, "I understand he received no support from other staff. I don't recall
Smith ever mentior~ing the nurses." in re-examination, the doctor recalled that the
Grievor was specif'~cally bothered that none of hfs superiors had assisted. However,
when asked whether the accuracy of the Grievor's description of the events was
relevant to the diagnosis, the doctor responded that it was not. He felt that there
was a possibility that counselling and follow, up immediately after the incident Could
have lessened the duration of the. Grievor's anxiety, but that it was impossible to say
for sure. The doctor expressed the view that most of the Grievor's anxiety arose, out
of the death of the inmate and that the rest of it related to going back to a work
situation where he believed he was not supported by his co-workers and supervisors.
We mention the foregoing evidence in some detail, not because we in any way
question the diagnosis as to the Grievor's condition and the need to be away from
work, but rather because it may place in better perspective the reasons for and the
-
nature of the Grievor's alienation following the incident. While the Grievor was
indeed a principal and important player and responded admirably to the
performance of his duty, he did so ss part of a team. HIS perceptions as he recalled
the incident later on would certainly ma~e it more difficult for others to understand
and appreciate the nature of his difficulties.
The Grievor first made a formal application for a leave of absence in a
lengthy letter dated June 6, 1989 addressed to the Deputy M~ni~ter. Superintendent
Morris suggested in his testimony that t_h_i~ was not the appropriate avenue to _
pursue and that the matter should have been raised within the institution. In view
of the specific language of Article 30 making reference to the approval of the Deputy
Minister, however, we do not feel the Grievor can be faulted for ~_n~tituting his
request in this mannen In setting the background for the request, the Grievor
reviewed the nature of the April 6th incident, and ss with everything that the
Grievor put in writing during that period with respect to the incident, the specific
concern described related to the actions of Sergeant Ryan. This letter, and other
statements given by the Grievor, while dealing with general concerns as to the
admir~istration of the emergency code in somewhat vague terms, focused on Sergeant
Ryan ss the particular source of the Grievor's distress. A paid leave of absence was
requested to give the Grievor an opportunity to cope with the situation and to try ~o
- 17-
forget what the Grievor described as an unforgivable incident. The Grievor
characterized the April 6, 1989 incident as being a situation in which he performed
his professional responsibilities but that, as a result of reporting the Unprofessional
wrong-doing of another, which his conscience and duty forced him to do, he felt his
c~;edibility had been destroyed, he had received no support fro,m his superiors, and
he could no longer cope with the situation. The letter described in detail the effect
the incident had had on his life, health and personal relationships and identified the
name and address of his doctor. In his letter he stated that he did not feel like
tslk_i, ug with any of the supervisors at Burtch because of what he described as "this _
problem" not being resolved and further conversation only angered him more.
The Deputy Minister responded to the Grievor's request under date JuIy 21,
1989. That letter made reference to ongoing consultations between the Grievor's
legal counsel and the legal advisor to the Ministry and stated that in those
circur~tances it would be inappropriate for the Deputy Minister to comment on the
issues. The Grievor was directed to discuss the matter with Superintendent Morris,
so that the request could receive appropriate consideration at the local and regional
levels and so that all avenues might be explored to determine the most appropriate
assistance for the Grievor. In a memo dated August 4, 1989, the Grievor requested
Superintendent Morris to respond to his June 6, 1989 request in writing. In a
- 18 -
memo dated August 10, 1989, Superintendent Morris sent to the Grievor the request
form used by the Ministry and asked that the Grievor submit that form along with
appropriate supporting documentation. The Grievor did file the form and by way of
documentation made reference to his letter of June 6th. Under date September 18,
1989, Superintendent Morris wrote to the Grievor stating that after extensive local
and regional review, the application would not be supported. The stated reasons for
that decision were:
1. The lack of supporting medical documentation with the application.
2. The present status of correctional staffing at Burtch, which was _
~iminished by several maternity and extended illness absences.
3. The extended period of the leave request, which would create
significant backfill cost and shift coverage pressures.
With respect to the decision itself, the o~y person to testify was
Superintendent Morris, who specifically disclaimed having made the final decision.
He indicated that he reviewed the matter and made recommendations t~ the
regional office, but that the ultimate decision was made in the regional office. He
had no knowledge of what considerations or further review entered into the decision
at that level. Superintendent Morris specifically stated that he did not wish to
speculate on what review had been done at the regional level. What is clear is that
- 19 -
the formal decision as it was conveyed to the Grievor reflected the recommendations
that had been made by Morris.
It is quite true that the Grievor's application for a leave of absence was not
supported by any medical documentation confh-ming his condition. However, that is
not to say that at the time of making his recommendations Superintendent Morris
was not fully aware of the problems being suffered by the Grievor. The letter of
June 6th was available. Commencing August 28, 1989 the Grievor was absent on
sick leave for an indeterminate period, and a medical note from the Grievor's _
personal physician had been provided to support that absence. Accordingly,
management was well aware as to the identity of the Grievor's doctor and that he
was currently medically unfit to work. The Superintendent was further fully aware
of the change in the Grievor's character and work performance that had followed
the incident. It was an ongoing problem and, from the Superintendent's perspective
and based on what he could observe in the work place, he must have concluded that
the Griev0r was suffering serious psychological problems. In argument, the parties,
of course, took diametrically opposed views as to the onus to investigate and to
obtain or provide appropriate supporting documentation, and the arguments will be
dealt with later. It is important to note at this stage that while formal medical
documentation did not accompany the application, the Employer's decision makers
- 20 -
must have been aware of the Grievor's condition, and they certainly were aware of
how to obtain additional information if they considered it necessary. They were also
aware that the incident had led to health problems on the part of other employees
involved in caring for the inmate, both on the management side and from the
Superintendent Morris was examined and cross-examined in some detail as to
the reasons for his recommendation against granting the leave of absence. Suffice it
to say that the scope of his investigations and consideration and his basic reasoning _
are accurately reflected in the formal letter of September 18, 1989 setting out those
reasons to the Grievor. The cross-examination did establish that in addition to the
reasons listed, Superintendent Morris did give consideration to the precedential
effect of granting a leave of this nature and the problems that could flow from
setting such a precedent. He agreed that the availability of sick leave to the Grievor
also was a factor that might have entered into his recommendations. He further
stated that, in retrospect, had proper medical support been available, it was possible
that his recommendation would have been different. However, he ~l~o stated that
the subsequent medical documentation, when it was received, indicated that it was
the institution and not the Grievor that would have to change, and he simply did
not see how that could be achieved. It was further his view that once the grievance
-21 -
was flied and in process, it was out of his hands and he was then not in a position
to reconsider the decision whatever fi~ther evidence came to light. Superintendent
Morris made it clear, however, that there was no challenge to the fact that the
Grievor needed to be away from work for the six-month period. The only issue was
whether that should be on a paid leave of absence basis or on sick leave, which
would pay to the Grievor 75% of his regular wages.
It was the position of the Union that the decision reached in rejecting the
Grievor's application for a leave of absence constituted an improper exercise of _
management's discretion in ail of the circumstances and a breach of the procedural
requirements in reaching such a decision. Union counsel argued that there were
four criteria established in prior decisions of this Board, . such as Kuyntjes, 513/84
(Verity), for evaluating the exercise of a management di_~_cretion and that failure to
meet any one of those criteria meant that the decision was flawed. Ms. Hughes
de£med those cr/~er/a as:
1. The decision was made in good faith and without discrimination.
2, The decision constituted a genuine exercise of discretion as opposed to
simply the application of rigid polic~
3. The decision was reached based On a consideration of the merits of the
particular application.
4. The decision was reached after consideration of all relevant facts, and
no irrelevant facts were tel/ed upon.
It was counsel's position that the decision in this case failed under each and every
applicable criterion. Ms. Hughes argued that the onus was on the Employer to
ensure that all relevant facts were available, and if they were not, the Employer had
to make reasonable efforts to get those facts. By way of authority, reference was
made to Carvalho 821/88 (Kirkwood). The Union further argued, on the authority
of Chow 2004/86 (Forbes-Roberts), that the failure to call the actual decision maker
meant that tMR Board could not actually evaluate the decision and that as a result _
the leave should be granted. To the extent that a consideration of the precedential
effect of granting the leave of absence entered into the decision, reference was made
to Sahota 2454/87 (Verity) as authority for the proposition that that was an
irrelevant consideration. A further irrelevant consideration relied upon by
management was the availability of sick. leave to the Grievor. Here reference was
made to Arora 1099/89 (Stewart). In addition to considering those irrelevant
factors, it was the Union argument that the principal relevant factor was the
Grievor's medical situation and the Grievor's particular circumstances and that
these were not considered by Superintendent Morris in the process of m~tc~ng his
recommendations. It was argued that Superintendent Morris was in error in
assuming that, even when more specific evidence came to his attention, there was no
longer anything that he could do about it. In any event, in accordance with the
precedents of this Board, the onus was on Superintendent Morris to make the
appropriate enquiries and obtain the necessary fact,.m! information. The
recommendations he made did not deal with the merits of the application, but rather
focused on the problems and cost of implementation.
It was the argument on behalf of the Mi-n-fstry that under Article 30 there was
a threshold test that had not been met on the factual circumstances of this case.
That test was that the leave must be required for special or compassionate purposes. _
It was argued that while it is certainly appropriate to be compassionate with respect
to people who are sick, sickness of itself is not something that comes within the
definition of special or compassionate purposes and that to accept the Union
arguments would be tantamount to replacing sick leave with paid leave of absence.
Mr. Knight argued that the Union had spent four days to establish something that
had never been in dispute, namely, that the Grievor was sick. They had not
established any special or compassionate purposes that would justify a paid leave of
absence. On that basis, therefore, it was not necessary to embark upon a
consideration of whether or not a management discretion had been properly
exercised. It was further argued that in the event we considered it appropriate to
review Superintendent Morris' recommendations, then on the evidence whatever
- 24 -
irrelevant considerations were present, it did not matter in view of the fact that they
did not have any impact on the decision. Reference was made to Marcoux 25'7/88
(Kates) by way of authority. Superintendent Morris had, in fact, considered all
available material facts to reach his recommendations, and therefore this Board
should not interfere with the way in which the discretion was exercised, it was also
argued on behalf of the Ministry that while the leave has to be approved at the
Deputy Minister level, it can be denied at a lower level within the Ministry, and that
in this case the Ministry had called the individual who investigated and who made
the effective recommendations that were followed, For authority reference was _
made to Mahendra 2027/87 (Mitchnick). Mr. Knight made reference to a number of
other prior decisions of this Board purporting to set out the appropriate
considerations and principles with respect to a paid leave of absence, all of which in
his view supported the decision reached with respect to the Grievor's application.
It was argued that Superintendent Morris knew what had happened on April 6,
1989 and was involved in the ongoing investigation and the inquest. He, more than
anyone else, had ali the material facts available to him. He treated the Grievor's
allegations seriousl~ and he correctly concluded that while the incident had caused
the Grievor stress that would support sick leave, there was nothing that went
beyond the normal sick leave that would constitute special or compassionate
purposes. He argued that the Employer's only obligation was to make reasonable
- 25 -
enquiries, particularly wheTM it is the employee who can most readily provide the
information.
In reply, the Union agreed with the Ministry's position that there was a
threshold to be met before Article 30 is applicable. However, the Union's
characterization of the incident was quite different from that of the Ministry.. It was
argued that~ in context?the Grievor's condition was not a mere sickness but rather
was situational anxiety resulting from an incident in the work place that was
extraordinary and unusual to the extreme. It was a situation that traumatized a _
number of people, not just the Grievor. From that incident the Grievor perceived,
whether rightly or wrongI~; a breach of policies and professional responsibilities on
the part of representatives of management, and there was no follow-up on the part
of management to help him with his problems. The overall effect on the Grievor's
life was devastating. It is these circumstances upon which the Union relied to take
the matter beyond a situation of mere sickness to one that came well within the
definition of special or compassionate purposes.
It is our view that the reply argument of Union counsel completely captures
the essence of the threshold issue that is before us. The Grievor's condition and
psychological problems can, on no reasonable basis, be characterized as an ordinary
- 26 -
sickness. On April 6, 1989 the Grievor cannot be considered to have come within
the characterization of a volunteer who got involved and then might reasonably be
considered ~o be responsible for the consequences of his acts. Rather, he was
employed in what is, in essence, a para ~military orgsni~ation where the lower ranks
are obliged to follow the directives of their superiors. He was directed to become
involved in the rendering of patient care to the inmate, and he did so selflessly. The
doctor in his evidence attributed the substantial portion of the Gr~evor's subsequent
psychological problems to the incident of the death of the patient itself and to a
lesser extent to the Grievor's subsequent perceptions of what had happened and _
what was being done after it happened. To the extent that those perceptions were
misconceived, it is again clear that the direct cause was the trauma of the incident.
There are prior decisions of this Board permitting a special leave for reasons which
might be characterized as somewhat trivial. We would agree with counsel for the
Ministry that this is indeed a special and unusual type of contractual provision and
ought to be resorted to only in compelling circumstances. Such circumstances do
exist based on the evidence that was presented to us, particularly in view of the fact
that there appear to be prior decisions of this Board applying a somewhat less
critical view as to what constitutes special or compassionate purposes.
- 27 -
The Ministry was, therefore, under an obligation to exercise its discretion in a
reasonable manner, and the principles set out by Arbitrator Verity in Kuyntje~
constitute valid guidelines against which to measure the reasonableness (as opposed
to the correctness) of a particular decision. Against those criteria, the decision does
n6t measure up, principally on the third criterion that the decision must be based on
a consideration of the merits of a particular application. It may be noted that the
written reasons make no reference to any such consideration or analysis and that
Superintendent Morris did not indicate in ]~s evidence any consideration of whether
the Grievor's condition was other than an ordinary sickness. In any event, we do _
not know, based on the evidence, whether there were any additional or other
considerations applied at the regional level before the adoption of Superintendent
Morris' recommendations, in particular, the written reasons given for the decision
made reference to a lack of supporting medical documentation. The nature of the
Grievor's problems is fully and completely set out in his letter of June 6, 1989, and
only if the Superintendent questioned the information contained in that letter would
a lack of supporting medical documentation be relevant. However, the Ministry
position at all stages has been that there is no challenge to the Grievor's medical
need to be away from work, and therefore corroborative professional opinion would
not add anything to assist in the decision. The issue for that decision was really
whether or not the other circumstances that existed, all of which were fully known
- 28 -
to Superintendent Morris, took this situation beyond one of mere sickness to the
level of special or compassionate purpose. In our view, those circumstances did have
that effect, but this issue was not addressed by the Employer in the process of
evaluating the Grievor's application for special leave. Had it been properly
c~nsidered, there is authority in the decisions of this Board for the proposition that
we cannot substitute our views as to the correctness of such evaluation.
It is, therefore, our conclusion that management was obliged in the
circumstances to consider the actual merits of the application and t_h. fs was not done. _
We do not think that this is in any sense an appropriate case to refer the matter
back, in view of the fact that there has now been an exhaustive review of the facts
and of all of the considerations that should enter into the decision, and it is,
therefore, appropriate that the decision be made in th~s award. It is our decision
that the grievance be allowed and that the Grievor be granted the leave of absence
within Article 30 for the period of his absence. He is entitled to be compensated for
wages and benefits lost during that period. We will remain seized to deal with any
-29-
matter relating to the implementation of this award should the parties not be able
to agree upon same.
t
DATED this 3~stdaY of January, 1991.
Ros' ~- ~Canned_v, Vice-Chairperson
F. Coilict , Uemb~r (Addendum attached)
CHAIRMAN'S ADDENDUM
I have had an opportunity to read the addendum of my colleague, Mr. Collict. I find
nothing in that document with which I would disagree.
Ross L. Kennedy
ADDENDUM TO G.8,B. #1411/8e (SMITH)
This Member is in agreement with the awa.,cl in this case.
It is significant to note, however, that this case was rather unique and that this
uniqueness carried it beyond a characterization of mere sick leave through a
combination of circumstances that were, indeed, special; and, it is the special nature
of these circumstances that brought it Into the ami)it of Article 30 of the Collective
Agreement. These circumstances have been set out in the award and will not be
reviewed further in this Addendum.
It must be emphasized that the incident which ultimately resulted In the request for
special leave occurred in the work seffing; and it was most unusual owing to the tear _
of AIDS infection, conflicting evidence concerning' that which transpired at the time of
the incident, and the perceptions of fie Grlevor with reference to the way in which he
viewed his own rasponaibilities, the adequacy of Irmtltutlon standings, equipment,
pemonnet and management rssporme to the emergency.
It was these special ctrcumstancas which causscl this case to be cllstlnct and, most
assumclly, it must be stated that this case doss not stand for the proposition that
evidence of illness, which may give rise to concern, sympathy or compassion, does
not, of itseff, bring the situ~on into the scope of Article 30. The circumstances
to do so must be vely peculiar indeed.
In this respect, it is stated at page 26 in the award with reference to the application of
AllJcle 30 of the agreement that,
"We would agree with counsel for the Mlntstry that thl~ is Indeed a
special and unusual type of contractual provision and ought to be
resorted to only In compelling circumstances. Such circumstances do
exist besecl on the evidence that was presented to us, .... "(p. 26)
In the exercise of its discretion in deciding upon an application for a special or
compassionate leave, management is under an obigation to do this in a reasonable
manner; ancl G.$.B. jurisprudence has set out gulclelinss against which to measure
the reasonableness (as opposed to the con'ectness) of a particular ¢lec~on, These
are the guidelines set out at page 31 In the award.
In the view of this IVlemj:)er, these guidelines in G.8.B. jurisprudence have been
applied so narrowly aa to find trfvlai and immaterial matters to be sufficient to fault an
otherwise reasonable decision that has been male by management in good faJth and
In a non-arbitrary anti non-discriminatory manner. Illustrations in this respect would
apply to the availability of vacation credim or the application of a Ministry policy, etc. -
However, a parallel may be drawn with other G,S,B. jurisprudence where a few
aberrations in the job competition process (ag, failure to examine pamonnet files,
consensus scoTIng, reterences, em.) will ~ of themselves flaw the total process; and
similarly, such latitude should apply in the application of the gulclellnss established for
the evaluation of "reasonableness" in.the managerial decision-real, rig process.
In this case however, supmlntendent Morris on his own evidence did not direct any
consideration to the IMUe of whether or not in all of the circumstances, special or
compassionate grounds for leave existed; and this wes the principal issue that had to
be decided. A~ stated at page 28 of the award,
"In our view, those circumstances did have that effect (of taking this
situ~on t3eyond one of mere sickness to the level of special or
compassionate purpose), but this issue was not aldrassed by the
Employer In the process of evaluating the Grievor's application for
spoc~al leave."
Most fmportantiy, it is stated further in the awa~, tJ~at
"HA~ it,been oroperlv considered, there Is auffiority i)'! t~e c~ecisions of
l~his Bo,,rcl for the pmpctsltlon tb~ w~) cannot sui~titute 9ur vlew~ as to
the correctness of such e~altlatlon.
It is. therefore, our conclusion that management was obliged in the
circumstances to consider the aotuaJ merits of the applir,~tlon and this
was not done.* (p. 28)
(undem~o~lng added)
In view of the al3ove and the peculiar circumstances of this case, tho subject -
grievance was upheld.
F.T. COLLICT
Date: ~../~1