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HomeMy WebLinkAbout1989-1586.Wilson.92-04-15 ONTARIO EMPLOYES. DE LA COURONNE CROWN EMPL 0 YEES DE L 'ON TA RIO GRIEVANCE COMMISSION DE SETTLEMENT Ri=GLEMENT BOARD DES GRIEFS , DUNDAS STREET WE~;T, SUITE 2~00, TO~ONTO, ONTAR~Q k45G ]Z8 TELEPHON~/T~LEPHON£: ~'4t6) 3~6- RUE DUNOAS OUEST, .~U~EAU 2100, TORONTO (ONTARIO). MEG [Z8 FACSifW[LE/T~L~COPIE : (4 ~6) 326- [586/89 Unde~ Before T~ GRIEV~CE SETTLE~ ~ BE~EN OPS~ (Wilson) Gr~evor - ~ - · he Cro~. in Right of Ontario (Minist~ of Correctional Se~ices) Employer BEFO~: ' T. Wilson Vice-Chai~er~on J. McManus Me,er R. Scott Me, er FOR THE N. Coleman GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE M. Galway EMPLOYER Staff Relations Officer Human Resources Management Ministry of Correctional Services HEARING April 26, 1990 DECISION The Grievor, Paula Wilson,~ is a Correctional Officer at the Barrie Jail. She grieves that she was unreasonably denied compassionate leave on -'~gust25, 1989. The provisions of the relevant term of the Collective Agreement read as follows: 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 spec/al or compassionate grounds. 55.2 The granting of leave under this Article shall not be dependent upon or charged against accumulated credits. The basic outline of the facts behind the grievance are fairly simple and straight forward. The Grievor's fiance is a Correctional Officer at Maplehurst Correctional Centre and lives in Milton, Ontario. On faust24, the Grievor Iearned that he had been injured in a chain saw accident and had been taken to the hospital. She got permission to leave for Milton that day but subsequently learned that her request for compassionate leave for August 25 had been denied. The Grievor testified on the sequence of events. She is a CO 2 at the Barrie Jail and was scheduled to work on August 24, 1989 from 7 a.m. to 7 p.m. When she arrived at the Barrie Jail at 6:30 a.m., she was summoned by the control, officer, Brown, who told her that someone had been trying to reach her all night. She then went to the locker room and after that to the muster room. About 6:45 a.m. there was a telephone call for her. It was from the ~ AIthough the Grievor and the Chair have the same family name, there is no family relationship between them.. Union Stewart, at Maplehurst Correctional Centre, John Klonowski, who told her that her fiance had been injured in a chain saw accident. He had been taken to the hospital, but Klonowski did not know the extent of the injuries. The Grievor then went to the O.M.'s office where she spoke to Mr. Woyce, an O.M. 15 (lieutenant). She gave him the information she had ~ust got from Klonowstd and requested special leave. Because he would have to have coverage i_f C.O. Wilson were' to leave, he said fie would get back to her as soon as possible. About 11:00 a.m. Lt. Woyce got back to her saying that he had'spoken to the Assistant Superintendent Broadbent and permission to leave had been denied. Being upset by this denial, the Grievor decided to approach the Barfie Jail Superintendent, Francis, directly; so she wrote out a formal request to Superintendent E. Francis, the text o:f which reads as follows: Request for Special leave to attend Toronto to ascertain the extent of the 'injuries that my fiancee has received as a result of a chainsaw accident yesterday. I was advised by the midnight shi~t control officer that someone had been trying to reach me all night. Upon attending work this a.m., I received another call advising me that my fiancee had been injured and taken to hospital. Your consideration regarding this situation would be greatly appreciated, Respectfully P. Wilson She testified that just before 3:00 p.m,, Assistant Superintendant Broadbent telephoned the Grievor and questi6ned her whether she wanted the leave. He said it had been arranged for the balance of the shift. When she went to the locker room, she was approached by Broadbent and Woyce. Broadbent stipulated that leave had been granted and if more was required, she was to call the institution and advise. There was no indication of any time limits on the 24th's leave. If more time was needed, it would not be a problem: it would be governed by her request for special leave. She went to Toronto and from there to Milton District Hospital. The receptionist at the hospital informed her that Gillies had already been released from hospital. She then went to 4 his residence in Milton where she found him alone a. sleep in bed. He had an injury to the top of his knee cap from a chain saw cut and the hospital had put eight .or ten staples on the wound. His leg was swollen. He had also been placed on prescription pain killers and been told to keep his leg elevated and to stay off it. Because of the medication, he was groggy. The acc/dent had occurred on August 22 and he been at the hospital for a few hours and then released. He lived alone at the time: The witness characterized their relationship as a formal engagement. Gillies had no fami/y in Toronto but in Quelph, Cambridge and Woodstock. When she arrived ora August 24, she learned that he had not eaten all day. His sister-in-law had dropped' in on August 23 on her way to work, but could not stay with him. The Grievor testified that she felt he did need someone to care for him, since he was not totally himself that day. As a result of his injury, he was off work for six weeks. The Grievor telephoned his mother in Woodstock, but she could not come until Saturday, August 26. The Grievor was scheduled to work the day shift on August 25. Just before the shift change at 11 p.m., the Grievor telephoned the Barrie jail and spoke to Lt. Tricco. She informed him that she would not be attending at 7 a.m. and explained to him that Broadbent knew the reason. She told him that if she should need any further leave beyond that she would inform them. She indicated to him that there was no one else to look after Gillies until Saturday. Tricco said that as long as Broadbent was aware, he did not see any problem and he would provide for coverage. The Grievor stayed with her fiance on August 25. She was not scheduled to work on August 26. · The Grievor returned to work on September 2. When she arrived, there was her August 24 the Memorandum in her mail box with a notation at the bottom by Superintendent Francis in which he writes: "Relieved from duties at 1500 Hrs. special leave granted to cover absence from 1500-1900 Hrs. Attached to the top of the memorandum was a Note: t'Paula Please advise i~ you wish Friday Aug 25th as lieu day or vacation. Len". As a result, the Grievor wrote another memorandum dated September 6th, 1989 to SuPerintendent Francis: As per my previous request dated August 24, 1989 Re: Spec/al & Compassionate Leave. I was directed by the Assistant Deputy Superintendent, Mr. L. Broadbent, that the leave was granted and that if any further compassio/~ate leave was required to call the institution and advise. Respectfully submitted P. Wilson The Superintendent on 13 September wrote the following Reply on the Memorandum: "Your request has been fully considered - 24 Aug 89 - period from 1500 - 1900 I-/rs approved as special leave - period 0700 - 1900 Has 25 Aug 89 not approved for Special leave"' The Gfievor received this document on October 5. On September 18 while Broadbent was doing a routine tour, he asked the Gfievor whether she wanted to use a vacation day or a lieu day for August 25. She indicated that it was her understanding that special leav~e was granted. But Broadbent replied that it was granted for August 24th but not the 25th. She then reminded him of his comment at the time that if further time was required, to contact the institution and inform them. Fie said leave was not granted for August 25. In cross-examination, the Gfievor explained that Klonowski was unable to reach her before August 24, because 'she was away from home visiting her mother 'in the Ofillia area and went directly from there to work on August 24. The reason why she had believed that her fiance had been injured on August 23 when she applied for leave was because that was what she understood from her telephone call from Klonowski on August 24. There was no telephone message for her for August 23 at the Jail. She testified that there was no time frame stipulated when leave was granted but she did understand that it was so she could determine the extent of Gillies injuries. When she called on the evening of August 25, Broadbeat did not know the extent of Gillies' injuries. She arrived at Gillies's home about 5 o'clock in 'the afternoon. Later that evening when she was unable to contact Gillies' mother, she realized that her assistance would be required. He had on a tensor bandage and had crotches, but he was groggy because of the pain killers he was prescribed. The Grievor returned home on Saturday evening. Edgar Francis has been the Superintendent of the Barrie Jail since January, i989. He and the Deputy Superintendent have designated authority to grant compassionate leave. He testified that when he receives such a request, he reviews the nature of the request. His decision is based on operational requirements whether the arrangements can be made. He considers any'undue hardships and there is no discrimination in handling requests. There is a Personnel Policy & Procedures Manual which has provincewide application for the Ministry which provides guidelines. Under Leaves of Absence, it sets out the following: POLICY In order to ensure that managers exercise discretion in a reasonable and nondiscriminatory manner in deciding whether or not to grant special or compassionate leave, it is recommended the following considerations be taken into account: the needs of the workplace; i.e. staffing and operational requirements the importance of the request to the employee and the hardship mused by denihl in family matters, the nature of the relationship and the urgency of the call on the employee's services by family obligations whether it was possible or appropriate for other arrangements to be made by the employee - whether denial or granting of the'leave would constitute a form of discrimination; i.e. similar cases should be treated in like manner Normally, special and compassionate, leave pr6/,isionS are aot applied in the following circumstances (but requests may be made under other appropriate Articles or Sections): ' - religious holidays - weather conditions - extension of mat. emity leave - mandatory referrals - sickness of family members (subject to above-mentioned circumstances - wedding - car or other transportafional breakdowns - extension of bereavement leave - medical aPpointments - moving - legal matters attending graduations He had heard that the Grievor had got a message and had requested permission of the Shift Supervisor to leave. He had explained that he could not let her do so due to staff requirements. Sometime after that he received a Memorandum from the gfievor in which she indicated that she was requesting to go to Toronto to see the extent of the injuries 'received by her fiance. Once this was received, he considered it and in view of the information he had on the morning message, he instructed Broadbent to relieve the Grievor from h.er shift as soon as possible. This decision was based on the fact that she had received a. call that her fiance had been injured and she was to find out the extent of his injur/es. So it was granted to her for the remainder of the shift. His understanding from her memorandum was that the accident had occurred on 'August 23. He testified that if he had known that the injury had occurred on August 22, he would have asked for more detail as to what the request was looking for, but since his information had been that the injury had occu/'red just the day before, the request seemed reasonable. Sometime between September 6 and September 13, he learned that Gillies had had to receive five to six stitches for his injuries. He feels that given all the information he now has, he would not change his decision to deny leave for August 25. In cross-examination, he agreed with Union Counsel that on August 24, he already had it in mind that the Grievor might require further time off including for caring for Gillies. Indeed arrangements were made to cover for her on August 25 if she was not coming back. But he maintained that until the heating there was no information given to him that Gillies needed her care for the 24 hours in question, yet maintained that he did take Gillies need for care into consideration on September 13. He felt that his decision to deny the leave was a correct decision. ARGUMENT It was the Union's position that the denial of compassionate leave to the Grievor for August 25, 1989, was unreasonable and therefore violated Article 55 of the Collective Agreement. On the evidence, Counsel argued that Francis admitted that he contemplated that the Grievor might be off longer and made arrangements t° replace her on August 25. He made no further inquiries other than to hear that the Grievor's fiance had received only 5-6 stitches for his injuries. He had not spoken to the Gfievor to obtain any other info?marion. The Grievor as she had testified had considered that her fianCe needed someone to look after him. Counsel 'referred the Board to a number of decisions: Elesie and Ministry of Health ~Hamilton Psychiatric Hospital) GSB 24/79 (Swinton); Freem~an ilncl Ministry of Health GSB 87/80 (Weatherill); and Carvalho and Ministry of the Attorney General GSB 0821/88 9 (Kirk'wood). i'n the Elesie.case, the Vice-Chair states that in determining reasonableness, the Board has concern whether the employer had sound reasons for determining between applicants who received different treatment. Therefore it is important that the employer establish~ some criteria to guide his decision. The standards or criteria established must themSelves be r~asonable. In the case. itself, V/ce-Chair Swinton expressed concern with regard to the equal application of the criteria established by the Administrator. The Gfievor had been telephoned by her son and told that he and his wife had been in .a serious, motor vehicle accident in which his wife's back had been broken. He wanted his mother to come to Halifax to look after his wife the following week. The Administrator considered this to be a planned event and not an emergency. But the Vice-Chair held at page 6 that at the time the Gfievor went to Halifax it appeared that there was an urgent need for her services and in circumstances that can be e.asily described as an emergency. She went on to rule: · In reaching that conclusiofi, we are not unm/.'ndfut of the submission of counsel for the employer that the Board should not second guess management's decision in.deciding reasonableness. However, in the circumstances, we feel that we are not doing so. Mr. Morin's testimony indicates that he misunderstood Mrs. Elesie's c/rcumst~ces and the reason for her delayed departure. Furthermore, he placed his own interpretation on the facts which he heard second hand from Ms. Austin. The latter felt this to be an emergency. We appreciate that it would be administratively unfeasible for Mr, Mofin to consider every request for leave on the basis of personal consultation .with the applicant, and we would not require him to do so. A supervisor in his position must rely on his subordinates for advice and the funnelling of relevant information. On the basis of this information he may well assess a situation.differently from some of these subordinates. However, in doing so, the supervisor must ensure that he understands the facts correctly and that he takes into account the importance of the assessment of the situation by one who is close to the employee involved and able to consider the degree of distress experienced by. the employee first-hand. Had Mr. Mofin taken these considerations into account, it is difficult to see how he could treat this as a pre- planned event and not an emergency, distressing to Mrs. Elesie. Therefore, he acted unreasonably in applying his own criteria for compassionate leave. Mt. Coleman for the Union cited Freeman case for the authority that necessity for leave does not mean absolute necessity. He further argued that the Carvelho case states that once l0 tl'ie employee, shows a legitimate reason the onus shifts to the employer in the case. In his view, the Gfievor has given a legitimate reason. The management, has not made any other inquiries and there is no reasonable grounds for refusing the denying leave for August 25. Counsel for the Ministry cited the following cases: Mailloux and Ministry of Cor~ecfioiaal Service~ GSB 87/88 (M.G. Picher); Marcoux and Ministry of Correctional Service GSB 257/88 (Kates); Jackson and Ministry of Cgrr~ctiQnal Services GSB 487/83 (Roberts). In her submission M~lloux stands for the proposition that an employee should not make '~partial" disclosure. In our case, it is her submission that the Grievor made no effort to correct her original misconceptions about the situation. Further, the Grievor was not required to stay with her fiance. For the Union to succeed, it needs to show that if a full investigation had been made and all the facts known, the Grievor would have received compassionate leave. In our case there was no suggestion that Francis relied on extraneous circumstances or thai if he had 'had all the facts, he would have granted the requestJ Francis was not made aware that the accident had occurred on August 22 and that Gillies had functioned without the Grievor's assistance. Furthermore Gillies had simply received outpatient care. Even the Grievor has not yet obtained all the facts. The Union's argument that the Gfievor believed that she had permission when she left on August 24 is inconsistent with her instructions that she had to call back if she was going to be off on August 25. Since the process of deciding had been tainted, the Board must decide whether on the facts leave would have been granted. REASONS FOR DECISION The Board has the .task of deciding whether compassionate leave was unreasonably withheld. Several points need to be observed. It is not relevant to management's decision that the Grievor had other types of leave that she could rely on if she needed to bt .away. The only question was whether she was entitled to compassionate leave. There has not been a successful challenge to the sincerity of the Grievor herself, Indeed, I did not hear the witness for the Ministry even make such a challenge, although Counsel for Ministry challenged the necessity of the Grievor to be with her fiance. She testified that when she arrived he had not been eating, that he was in bed under circumstances as described above and that none of his other relatives were taking care of him at the time. I am satisfied that her feeling that she needed to look after him was 5ona fide and justified on the facts. If Ministry Counsel really .wanted to challenge her credibility, better evidence.would have been required. I do not really understand Mr. Francis as deciding that her concern for h~r fiance at that time was eider .. unjustified or faked. Neither does the Ministry argue that it was inconvenienced. It made all the arrangements in ad.vance to cover for the Orievor on August 25. So far as filling in for her that day, it did not matter in fact whether she was away on compassionate leave, vacation or even AWOL. The reasons for the denial of leave seem to be based on the facts that thc Grievor stayed off to care for her fiance as distinguished from her original going to find out what happened to him and the fact that the accident had occurred on August 22 rather than August 23. as the Grievor had originally believed and reported. I fail to sec how any of these factors are even relevant. The Grievor did not find out about the accident until August 24 because she .was in Orillia staying with her mother. She originally got the impression that Gillies was injured on August 23, but I fail to see how that matters. When she got to his residence, he needed care; it was irrelevant at that point when he had been injured: he needed care then. The Ministry argues that all this was not explained by the Grievor. But .it is not that astounding since without being told what made a difference to manage, ment why would the Gfievor necessarily go into all that detail. On the facts as she had related them, she got the impression from Broadfoot that she should go to find out what had happeaed. Francis himself in cross-examination admitted that if necessary she obviously would have to stay off ahother day and made the arrangements. Her instructions were to call back and she did so. I agree with Vice-Chair Swinton's ruling that the designee should make sure he has the facts even if he does not himself directly ask the employee involved.' Clearly, Francis did not do this. It would have been unreasonable for him to have refused had he known the facts as we heard them. Clearly, the Grievor met all the criteria of an emergency when she was given leave to go on August 24. By any reasonable standards, her decision to stay to look after her fiance was justified under the same criteria.. Counsel for the Employer seems to hax;e re~ied on a theory that the Grievor should have spelled out the circumstances at the time and by impliCation not having done so is .stuck with the result. I do not accept that theory. In Carvalho at page four of the decision, the Employer expressed the view that it was able to review its decision fight up to 'the date of hearing. This is of course literally true. Indeed, I suppose the Employer can concede the case up until the moment the decision of the GSB is released. That being so, it really does not matter from our pohat of view whether the Grievor originally gave management all the information that it now says it 'needed, because once they come out they have to be considered. The only relevance of the Grievor's not giving this information would be if such raised a question of credibility-something which is not at issue with respect to the Gfievor in the case before us. Indeed, the evidence tends to show that the Grievor did not know that the Employer wanted such information. On the other hand, we still have the issue raised by the Union .that the Employer has a positive duty itself to obtain the information it needs to 13 decide. This seems to be supported by Vice-Chair Kirkwood in Carvalho at page Mr. Henderson telephoned the grievor in December 1988 to confirm the..information that he had received in July and to determine if there were any other factors to be considered. The information which he received supports the finding that the employer had not made reasonable attempts to obtain all the relevant facts prior to the decision being made. To say, after the decision is made, that notwithstanding all the facts, the leave would have been denied in any event, is self serving and does not correct the procedural deficiency to obtain the facts before the decision is made. We cannot accept the implication in the employer's proposition that the employer can rectify the defect in the procedure by canvassing the facts the fully in December, in the manner he should have in July. Then at page 8, she writes: Although it is not an absolute right of the employee to have compassionate leave, if compassionate leave is to have any meaning, if the employee can show a legitimate mason .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.. Altho'ugh I reserve judgment on the reference ti~ a shifting onus since that point is not fully developed in Carvelho_., I am satisfied that the pr/nc/ples in general set out in the above passages are correct. The delegate does have to inform himself properly and his decision can be reviewed and replaced by that of the Board if it finds that he either did not properly inform himself or if he considered factors thai he ought not to have considered and which altered the decision and the Grievor shows a legitimate reason for her request and can show a reason for compassion. In conclusion, I find in our case that the Superintendent in deciding to deny leave for August 25 considered factors which he ought not to have considered, that had he not considered these factors leave would have or ought to have' been granted and that furthermore before deciding he did not adequately inform himself as to what the facts actually were. Accordingly, I allowed the grievance and instruct the Ministry to credit back August 25 to the Orievor's v. acation bank. Dated at Toronto thislsday of April, 1992 Thoma.4 H. Wilson . Vice-Chair 3. McManus Member ,'I 1)issem,, (disseat R. Scott Member 1 Dissent of J.R. Scott I have considered the decision of the Chairman in this matter, and must-say, with respect, that I do not agree with his findings. The ev/dence of both the grievor and the superintendent of the correctional institution where the grievor was employed, indicates.there were two separate and distinct requests for time off by the grievor and that the time off was for a different reason in each case. In the first place, the gr/evor had learned, almost 48 hours after the fact, that her fiance, Mr. Bill Gillies, had been injured by a chain saw but had not learned any other details. She requested time off from her shift to determine the seriousness of his injury. Time off for the balance of her shift was granted and, subsequentJy, that time. off was conJi'dered to qualify for time off with pay under Article 55, Special and Compassionate Leave. In the second case, when she eventually located her fiance at his home, she thought he needed her care and attention. She called the institution and advised that she would not be in for her scheduled shift the following day because no one else was available to take care of her fiance. The ministry arranged coverage for her shift but subsequently decided that this time off did not qualify for time off with pay under Article 55. Mr. Edgar Francis, Superintendent of the Barrie correctional facility, made a decision, based on the information available him as to the seriousness of Mr. Gillies' injury, that the grievor's decision to stay with her fiance did not, like the earlier leave' he approved, warrant the application of Article 55. - The Chairman, at P12 of his award, makes this observation with respect to Mr. Francis'- decision: It would have been unreasonable for him to have refused had he known the facts as we heard them. Clearly the grievor met all the criteria of an emergency when she was given leave to go on August 24. By any reasonable standards, her decision to stay to look after her fiance was justified under the same cr/tefia. Based on my understanding of the facts as we heard them, I do not th/nk Mr. Franch' decision was at all unreasonable. The evidence we heard was that the gr/evor arrived at her fiance's residence at approxfinately 5 pm on October 24, 1989 and found h/m in bed, sleep/ng. According to the ev/dence, th/s would have been appro~'/mately 48 hours after he returned home from the hospital. She said he was "8roggf' from the pai~k/llers and "not 'totally himself." She also said he had not eaten that day. Later/n the evening she derided that she should stay and take care of him and called the/nst/tufion at appro~dmately 11 pm to adv/.se she would not be in for her shift at ? am the following day, Friday, August Z~th. The evidence established that Mr. Gillies' sister-in-law, who is a nurse, stopped in to see him on her way to work on August 23rd, the day after the accident, and then continued on to the hospital where she worked. Apparently, she did not deem it necessary to stay with h/m and there was no ev/dence that she tried to arrange for anyone else to stay with him. 3 The evidence also indicated that Mr. Gillies was mobile enough to drive himself to a Union Safety Conference in Port Elgin, a 'distance of approximately 175 kitometres, on Monday, August 28th. In summary, the reaction of his sister-in-law to his situation, the fact that he managed on his own for more than 48 hours before the grievor arrived, and the fact that he was well enough to drive a coasiderable distance to a Safety Conference only 48 hours after she left his side, all suggest to me that while Mr. Gillies was undoubtedly experiencing a considerable degree of discomfort, he could have continued to manage on his own. i can readily understand why the grievor would want to stay with her fiance, but I cah't agree there was a need_ for her to stay. And that, when all is said and ' done, /s one-of the important criteria ia cons/dei-/ng Spec/al or Compassionate Leave under Article 55. Mi'. Francis made a decision, based on the early information available to hiTM and the evidence before the Board does not persuade me that he' would have come to a different conclusion had he known all the facts as we heard them. Therefore, it is my view that the Board should not have interfered with a decision that was within his discretion to make under the Provisions of Article 55 of the Agreement. In conclusion, l- find in our case that the Superintendent in deciding to de, ny leave for August 25 considered factors which he ought not to have conside.red, that had he not considered these factors Ieave would have or ought to have been granted and that furthermore before deciding he did not adequately inform himself as to what the facts actually were. Accordingly, I allowed the grievance and instruct the Ministry to credit back August 25 to the Gr/evor's vacation bank. Dated at Toronto thisl5 day of April, 1992 / / Thomas H. Wilsort Vice-Chair o- J. McManus Member R. Scott Member