HomeMy WebLinkAbout1989-1928.Selzer.90-11-15 ONTARtO EMPLOY~S DE LA COURONNE
CROWN EMPLOYEES DE L'ONTARtO
GRIEVANCE CQMMISSlON DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
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1928/89
In the Matter of an Arbitration
Under
The Crown Employees Bargaining Act
Before
The Grievance Settlement Board
Between:
OPSEU (Selzer)
Grievor
=and-
The Crown in Right of'Ontario (Ministry of Health)
Employer
Before: B. Keller Vice-Chairperson
'P. Kl~m '. Member
G.Mxlley Member
For the Grievor: C. Walker
Grievance Officer
Ontario Public Service Employees
Union
For the Employer: P. Young Counsel
Winkler, Filion and Wakely
Barristers and solicitors
Hearing: October 12, 1990.
DECISION
The grievor, Ms. Jane Se lzer, alleges that she was unjustly
denied her request to take a vacation from February 9 - 26, 1990.
She seeks a declaration that the leave was unreasonably withheld
and requiring the employer to adopt a more reasonable standard in
the future.
Ms. Selzer has been employed as a Secretary in the Psychiatric
Hospital Branch, Patient Care Services at the Hamilton._
Psychiatric Hospital since February 1987. On February 15, 1990
she approached her superior, Mr. Tom Chiles and asked for vacation
leave from February 9 - 26. Mr. Chiles discussed the matter with
his immediate superior, Ms. M.P. Barry, Assistant Administrator,
Patient Care Services and the two considered the leave could not
be granted. Ms. Selzer was informed of the decision and
subsequently grieved.
In her evidence the grievor indicated that she required the leave
to return to the United Kingdom to visit her father who was going
to be transfered to Tokyo for two years. The period she request-
ed was the period her husband was able to get leave from his
employer. There is no evidence that she explained anything to
Mr. Chiles regarding the reason the particular period was re-
quested.
Mr. Chiles explained to the Board why the request was denied. He'
and the grievor are the only two employees in the volunteer
services area. His employment with the Hospital.was terminating
on January 19, 1990. Granting Ms. S~lzer's request would mean
that for the period of her requested leave the department would
be without employees. Mr. Chiles explained how, when he attained~_
his position of Volunteer Co-ordinator in October 1988, the
department was without any employees as the previous co-ordinator
had left suddenly and Ms. S~lzer had been on maternity leave.
Both he and Ms. Barry testified that various staffing alterna-
tives were tried at the time but none were particularly success-
ful. The result was, apparently, disastrous.
When Mr. Chiles and Mr. Barry considered the grievor's request
they considered the options available to them. Based on the then
current situation, and given the 1988 experience, both concluded
that there was no way to accede to Ms. Selzer's request and
maintain the operation of the Department.
The issue in this case is whether there has been a proper exercise
of management's discretion as is required by the collective
agreement.
The Board was referred to two decisions, both dealing with tests
to be used in matters of this sort. In Da Costa, 570/84 the
Board put the issue in the following fashion:
It is management's right to make the decision.
But in making the decision, management must engage
in a real exercise of managing the undertaking.
The decision must be made in the interest of the
undertaking, rather than to further some other
ends, such as discrimination against people of a
particular color or race. One way of expressing
this is to say that the decision must not be
arbitrary, but must be made in good faith and
without discrimination. Management must take into
account relevant factors in coming to its
decision, and must not base its decision on
factors unconnected with legitimate business
purposes. If this is done, then the decision
cannot be questioned. It has sometimes been
suggested that the classic arbitral pronouncement
to this effect is the following:
"In this and every like case where there is
room for honest difference of opinion, if it
appears - as here admitted to be a fact - that
the employer has acted honestly, we do not feel
that a Board of Arbitrators would be justified
in interfering, by reversing the employer's
decision, for the reason that to do so would
result in management by arbitrators rather than
management by the employer. In this and every
such like case where there is evidence on which
a reasonable employer, acting reasonably, could
have reached the 'decision such as is here
challenged by the union, no board of
Arbitrators should interfere." (excerpt from Re
Canadian Industries Ltd.. Nobel Works, and
United Mine Workers, Local 13031 (1948), 1
L.A.C. 234 (Roach), at 237, and quoted in Re
Photo Engravers and Electrotypers Ltd. and
Toronto Printing Pressmen and Assistants'
Union. No. 10 (1980) , 25 L.A.C. (2d) 88
(Adams), at page 100)
However it is put, the essential idea is that an
arbitrator is not to ask whether or not management
was correct in its decision. Management has the
right to make the wrong decision. But
management's decision-making must be an honest
exercise in managing the undertaking, and no more.
The test was put somewhat differently - but with the same effect
- in Kuyntjes, 513/84:
In cases involving the exercise of managerial
discretion, Boards of Arbitration generally
hesitate to substitute their view for that of the
decision-maker, which is a recognition of the fact
that Boards have less familiarity than does the
Employer with the exigencies of the work place.
However, Arbitrators must ensure that decisions
are made within the confines.of certain minimum
standards of administrative justice. Those
administratiue law concepts relating to the proper
exercise of discretion include the'following
considerations:
1) The decision must be made in good faith and
without discrimination.
2) It must be a genuine exercise of
discretionary po~er, as opposed to rigid
policy adherence.
3) Consideration must be given to the merits of
.the individual application under review.
4) All relevant facts must be considered and
conversely irrelevant consideration must be
rejected.
In the instant case, the grievor admitted in cross-examination
that it was reasonable for management to conclude that it
couldn't grant the request because it would leave no one in the
department. It was also admitted, on behalf of the grievor, that
there was no discrimination or bad faith, that there was a
genuine exercise of discretion and that management did consider
its operational requirements. The thrust of the argument is that
points three and four of the test outlined in Kuyntjes, were not
followed.
In our view, based on the evidence, and in light of the
admissions we are satisfied that there was a real and genuine
exercise of discretion by management. Mr. Chiles was aware of
the grievor's needs, was aware of the operational concerns and
alternatives and, after discussions and considerations with Ms.
Barry concluded that the grievor's request could not be granted.
We are satisfied that all four tests enunciated in Kuyntjes have
been met. We are satisfied that management, with the facts it
had at its disDosal, turned its mind to the matter and made a
decision that was not discriminator, unreasonable or made in bad
faith. Accordingly, the grievance is rejected.
Da~ed at Nepean this 15~h day of November 1990,
M.B. Keller, vice-ChairPerson
P. Klym, Member
G. Milley, Member