HomeMy WebLinkAboutWatt 06-02-15
IN THE MATTER OF THE COLLEGES COLLECTIVE BARGAINING ACT
-and-
IN THE MATTER OF AN ARBITRATION
BETWEEN:
FANSHAWE COLLEGE
- The Employer
-and-
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
- The Union
AND IN THE MATTER OF THE
GRIEVANCE OF LOUISE WA TT
OPSEU GRIEVANCE #410914
Kathleen G. O’Neil, Chair
BEFORE :
Michael Riddell, College Nominee
Sherril Murray, Union Nominee
APPEARANCES:
John Brewin, of Ryder, Wright, Blair and Doyle,
For the union:
Counsel
Louise Watt, Grie vor
Margaret Szilassy, of Hicks, Morley, Hamilton, Stewart
For the Employer :
and Storie, Counsel
A hearing was held in London, Ontario on December 15, 2005
D E C I S I O N
This decision deals with the grievor’s claim for leave with pay to attend her cousin’s
funeral. The College granted the requested two days off, but without pay, and asks that
the grievance be dismissed on the basis that the denial of the request was not
unreasonable.
Facts
The grievor, Louise Watt, an early childhood educa tor, received a call at work at the
College’s childcare centre on April 28, 2004, informing her of the death of her first
cousin. Shortly afterwards, she approached her supervisor, Helen Glavin, and asked for
leave for two days with pay to attend the funer al in Rochester, New York. The two days
were intended to allow for the necessary travel time, approximately four hours each way,
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and a prayer service on the evening of April 29, followed by the funeral on the 30. Ms.
Glavin checked with Human Resources, and granted the leave, but without pay. Ms.
Watt had been granted one day’s leave with pay in 1992 and 1994 for the funerals of an
aunt and uncle and was disappointed that her request was not granted on this occasion.
When she returned to work after the funeral, she claimed two days vacation for the time
taken, but requested that it be covered as a personal leave of absence with pay. As that
request was denied, this grievance followed.
In her testimony, Ms. Watt emphasized that she felt a family obliga tion to be with her
brother and her cousin’s family, and a need to represent her side of the family with her
brother, as the families had a close relationship. It was very important to her to affirm her
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continuing support and concern for the remaining memb ers of her cousin’s family. She
also expressed the deep faith commitment that keeps the members of her extended
family together. In cross-examination, the grievor resisted employer counsel’s
suggestion that these were legitimate personal reasons, but the y were not extenuating
circumstances which required the grievor’s attendance.
Ms. Glavin, manager of the childcare centre between 2000 and 2005, had known the
grievor at work for over sixteen years. She testified as to the factors that she took into
account when considering the grievor’s request. She first looked at operational needs,
including whether Ms. Watt would need to be replaced in order to maintain the required
ratios between the number of children and staff. Ms. Glavin decided she could cover the
absence, assigning another employee to replace Ms. Watt for one of the days, and filling
in as necessary herself on the second day. As well, she noted that the grievor had
asked for bereavement leave, but given that it was a cousin, rather than a clo ser relative,
she determined, on the advice of Human Resources, that it would not be granted as paid
bereavement leave. She considered the length of the necessary travel time to the
funeral, as well as the fact that Ms. Watt had been granted paid leaves i n the past for
funerals, which indicated that the request was not out of the question. However, she did
not see the situation as an extenuating circumstance, and therefore did not approve the
leave with pay.
When asked in direct examination if Ms. Watt had given her any information to suggest
that this cousin was more than that, Ms. Glavin replied that she had not heard mention of
this cousin before, as she had of other family members. She said she concluded based
on all the circumstances, that it was n ot a case of extenuating circumstances. Rather,
she considered that it was a case where the grievor would like to be at her cousin’s
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funeral, but it was not a requirement. Ms. Glavin said she tried to look at the request on
its own merits, not just relyin g on the fact that leaves had been granted in the past. As
to what was different about the situation in which the College had granted leave with pay
for the funerals of an uncle and an aunt, Ms. Glavin said she had not made those
decisions, and was not familiar with the circumstances of those leaves, but she assumed
there were extenuating circumstances which justified the pay. She might have
considered it an extenuating circumstance if the grievor had been giving the eulogy or
been an integral part of the service in some way. When asked in cross-examination if
she had asked Ms. Watt about the relationship with her cousin, Ms. Glavin said Ms. Watt
had talked about it mostly as when they were children, and that she believed the grievor
had spoken about the deceased’s sister as well.
In cross-examination, Ms. Glavin acknowledged that she was aware that the grievor had
been a nun, was taking a degree in theology, including pastoral studies, and that Ms.
Watt felt a particular calling to counselling, especiall y around bereavement.
Submissions and Conclusions
The language of the collective agreement which falls to be interpreted is the following:
12.1 Personal Leave Without Pay
Leave of absence without pay may be granted by the College for
legitimate personal reasons.
12.2 Personal Leave with Pay
Recognizing the over-riding responsibility to the Student, leave of
absence will be scheduled where possible to ensure a minimum of
disruption to the educational programmes and services of the College.
Reasonable notice shall be given to the Supervisor concerned.
Leave of absence for personal reasons, religious leave and special leave
in extenuating personal circumstances may be granted at the discretion of
the College without loss of pay and such requests shall not b e
unreasonably denied.
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…
12.5 Bereavement Leave
On the death of an employee’s parent, spouse (or common law spouse),
child, stepchild, brother, sister, mother-in-law, father-in-law, brother-in-
law, sister-in-law, son-in-law, daughter-in-law, grandparent, spouse’s
grandparent, grandchild or guardian, an employee shall be granted leave
of absence of three (3) or more days without loss of pay in order to attend
at or make arrangements for the funeral, the duration of the leave to be at
the discretion of the College.
In argument, counsel referred to a number of cases which have dealt with the same
collective agreement language. For instance, Georgian College and OPSEU, L. 349,
(Grievance of J. Peacock), a decision dated April 6, 2001 of a majority of a Board of
Arbitration chaired by Arbitrator Saltman, dealt with a request for personal leave with pay
arising out of a childcare situation necessitated by the illness of the grievor’s children.
The employer had a practice or policy of reserving such leave for c ircumstances such as
fire, flood and snowstorms, and not to pay it for normal family illness where no travel was
involved. Rather, employees were permitted to use their own sick leave to cover family
illness, as well as vacation, accumulated lieu time or to have the time off without pay. A
majority of the Board held that the grievor satisfied the criterion for personal leave with
pay for those days when her children needed to be off school and she had made
unsuccessful efforts to make alternate arrangemen ts for their care. The days when she
had not attempted to make alternate arrangements were not found to constitute
extenuating circumstances. The Board then went on to ask if the College had exercised
its discretion unreasonably to deny pay on the days s he met the criterion. The majority
found that personal leave with pay was unreasonably denied in that the employer did not
give adequate consideration to the efforts by the Grievor to make alternate arrangement
on the days in question, and because they ha d relied on the fact that they were not
favourably disposed to granting personal leave with pay for common childhood illnesses.
The dissent noted that other cases have found that not all legitimate personal reasons
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for which leave may be granted were inten ded by the parties to constitute “extenuating
personal circumstances” and that there is a relationship between the degree to which the
grievor’s situation was extraordinary and the measure of reasonableness of the
employer’s response.
In Loyalist Colleg e and OPSEU (Grievance of Novroski), an unreported decision dated
September 16, 1996 of a Board of Arbitration chaired by Arbitrator Harold Brown, the
request was for one day’s leave with pay to attend the funeral of the brother of the
grievor’s father-in-law and to deal with his belongings. The evidence was that the
grievor had been particularly close to the deceased, and needed to help her elderly
father-in-law at the funeral. Stating that the issue was not whether the Board of
Arbitration would have d ecided differently, but whether the employer had considered the
relevant information in support of the request and exercised its discretion properly in
accordance with Article 12.2, the Board dismissed the grievance. The Board considered
the decision to b e reasonable based on the facts disclosed by the grievor to the
employer, and noted its view that material facts not brought to the attention of the
employer at the time ought not to be later used to dispute the decision. The Board found
that the employee’s right to have the situation fully examined before a decision was
made was afforded to her, and that irrelevant factors had not been taken into account.
In an earlier Loyalist College decision dated January 2, 1990 and reported at 9 L.A.C.
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(4) 166, a Board of Arbitration chaired by Arbitrator Kruger considered a grievor’s claim
for paid leave to be with his wife leading up to and after the birth of his child. He was
paid for one of the two nights he was off attending to his wife who had a long and dif ficult
labour and eventually required a Caesarean section. The Board considered the
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evidence using the criteria articulated by Arbitrator Verity in Re The Crown in Right of
Ontario and OPSEU, an unreported decision dated April 9, 1988, as follows:
1. The decision must be made in good faith and without discrimination
2. It must be a genuine exercise of discretionary power, as opposed to
rigid policy adherence.
3. Consideration must be given to the merits of the individual application
under review.
4. All relevant facts must be considered and conversely irrelevant
consideration must be rejected.
The Board found that the exercise of discretion was flawed in that it took into account
irrelevant matters in arriving at the decision to deny pay for the second missed shift.
These included most notably the idea that the grievor had not reserved vacation time in
advance for the anticipated birth, and his failure to call in on the second day of absence.
As well, the Board considered that the employer had felt bo und by its practice of granting
only one day for births, despite the special circumstances of the grievor’s situation.
In argument, union counsel emphasized that some objective meaning must be given to
the wording “extenuating personal circumstances” in o rder to avoid reducing the clause
to a grant of unfettered discretion to the employer. In the union’s submission, if the
College has unfettered discretion to interpret personal circumstances, the result might be
inconsistent application of the clause and an opening for favouritism. Counsel
characterized the question of whether there were extenuating personal circumstances as
a straight factual question. Counsel submitted that the dictionary definition of
extenuating, i.e. lessening the consequences, as i n the criminal context, was not
particularly helpful in this context. Instead, he suggested that in the educational context,
the term had more the sense of “compelling” personal circumstances, such as
something that would excuse a student from the adverse consequences of handing a
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paper in late, or missing an exam. Referring to the wording of the bereavement leave
clause, counsel submitted that the category of deaths that are covered without question
could be described as those for whom there is no real c hoice as to whether one would
attend the funeral, where an employee is essentially compelled to attend. He proposed
that one ask the question in this case whether there was a similar pull, obligation or
necessity on the grievor to attend. He argued that there was, and that the result should
be that a denial of paid leave in the circumstances was unreasonable. Further, counsel
submitted that where a person feels the deep personal need that the grievor felt to be at
the funeral of her cousin, the leave sho uld be with pay, in the scheme of this collective
agreement. In the context of the grievor’s history of receiving paid leave for the funeral
of an aunt and uncle, it is clear that the College acknowledges that leave may be given
under Article 12.2 for ber eavement, and it should be granted in this case as well, in the
union’s view.
On behalf of the College, employer counsel submitted that the test was not whether the
Board would have granted the pay in the circumstances of the case, but whether the
College violated Article 12.2 by acting unreasonably in denying the request. Further, she
underlined that the Board ought not to substitute its decision for that of the employer,
unless the employer’s decision was unreasonable.
As to the threshold question of wh ether the circumstances of this case amount to
extenuating personal circumstances, it is the College’s position that the grievor’s
situation fits into Article 12.1 instead, in that her reasons were “legitimate personal
reasons”. Counsel argued that the ev idence did not justify a finding that the grievor and
her cousin were integral parts of each others lives, or that she had a formal role in the
funeral services, which might have put the situation over into the domain of Article 12.2
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as “extenuating person al circumstances”. In this case, the College accepts that there
were compassionate reasons to allow the grievor the time off, but the situation is not so
compelling as to find that the exercise of the discretion to do so without pay was
unreasonable. The College accepts that there may well be bereavement situations
which fall outside of Article 12.5 which could attract pay under 12.2, as was the case
when the grievor received paid leave for the funerals of her aunt and uncle. Noting that
there was no evi dence about the details of those situations, counsel argued that the
College acted appropriately in not fettering its discretion by past examples. The
employer considered the grievor’s request on its merits, took all relevant considerations
into account a nd therefore, in the employer’s submission, the grievance should be
denied.
In reply, union counsel argued that the question of what constitutes “extenuating
personal circumstances” is not one within the particular expertise of the College, and
therefore there should be no deference to its decision on that point. In the union’s
submission, the employer’s discretion does not extend to the factual determination of
whether there are extenuating personal circumstances. Therefore the Board is urged
not to lim it its decision to the analytical formula proposed in the Loyalist decision of the
Board chaired by Arbitrator Brown cited above,: i.e., whether the employer had the
relevant information submitted in support of the request and exercised its discretion
properly and in accordance with Article 12.2.
* * *
The parties disagree over the threshold question of whether the facts of this case
amount to extenuating personal circumstances. The guidance provided by the collective
agreement in resolving this portion o f the dispute is limited to context; there is no
definition to be found. The context includes the contrast with the threshold criterion for
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unpaid leave in Article 12.1, which is “legitimate personal circumstances”. Article 12.2
provides instead for “exte nuating personal circumstances” as the threshold criterion,
which is properly considered a subset of 12.1’s “legitimate personal circumstances”, as
legitimate personal circumstances that are of a more pressing variety. The use of the
word “extenuating” co mmunicates something beyond the ordinary circumstances which
would warrant leave without pay, something which amounts to a sufficient basis on
which to extend pay when the person is on leave, but precisely what circumstances
qualify has not been articulate d by the parties. Instead, the agreed language provides a
number of categories which entitle an employee to pay, while others are left to the
employer’s discretion, subject to the condition that permission will not be unreasonably
denied. In the case of bereavement, the parties have consensually drawn a line around
entitlement to pay at a level of family relationship short of the first cousin relationship
involved in the facts of the instance case. As both parties agree, this does not constitute
a barrier to pay in other bereavement situations, but it is an indication that the parties did
not agree that all bereavement related circumstances should attract paid leave.
Counsel for the union submitted that the cases interpreting this language to date had not
sufficiently focussed on the “extenuating circumstances” part of the language,
concentrating instead on the question of the reasonability of the employer’s response.
To the extent that less is said about the term “extenuating personal circumstances” t han
“reasonableness”, it may be partially explained by the fact that there is no “bright line”
test for what constitutes extenuating circumstances. Further, and however one parses
the first part of Article 12.2, the question posed by the final wording of t hat clause, i.e.
whether the employer unreasonably denied the request for paid leave, has to be
answered. As well, the degree of the extenuating circumstances, as others have
remarked, and the reasonability of the employer’s response are related questions.
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Further, the discretion is never completely “unfettered”, tempered as it is by both the
language negotiated by the parties, and the general law on reasonableness in the
administration of collective agreements.
There is no dispute that the grievor’s sit uation constituted legitimate personal
circumstances, which was the basis for the employer’s granting leave for the two days,
albeit without pay. From the grievor’s point of view, as she very genuinely expressed it
in her testimony, these were extenuating circumstances, because of her faith and family
connection to the deceased and remaining relatives. Her testimony that she felt
obligated to be at the funeral, as a representative of her side of the family, was credibly
given, and the Board has no hesitat ion in accepting it.
Ms. Glavin’s testimony was also persuasive, warranting a finding that she considered all
the information presented by the grievor at the time of the request for leave, and
accepted that information. She compared the situation to th e bereavement provisions,
and on the advice of Human Resources, correctly determined that it did not fall within
those provisions. She then went on to consider whether the leave should be granted in
any event, and found that it was operationally possible, and so agreed to two days leave,
given the travel involved. She then considered if she should authorize pay as well. She
did not consider herself bound by the past decisions to grant paid leave for an aunt and
uncle’s funeral, and it was not suggested in argument that she should have been bound
by the past decisions. Her reason for not authorizing the pay is in essence that she did
not have information which convinced her that it was so necessary for the grievor to be
at the funeral that it amounted to extenuating circumstances.
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Union counsel urges a finding that the employer’s discretion in granting paid leave does
not extend to interpreting the term “extenuating circumstances”, that this is a purely
factual question. This suggests a “correctness” te st, which would invite a finding that
one of Ms. Watt or Ms. Glavin were wrong in her view of whether the facts of this case
amount to extenuating circumstances. If there were a fixed point from which to measure
what is objectively extenuating and what is not, this argument would have more appeal,
as it would contribute to certainty and predictability for the parties. As it is, there is no
such fixed standard, and therefore no adequate basis for declaring one view of
“extenuating circumstances” right and the other wrong on the facts before me, where
both Ms. Watt and Ms. Glavin had sincerely held, defensible reasons for their view of the
matter. There may be cases where the facts are so clearly extenuating or not that it will
be fair to declare one view right or one wrong. Nonetheless, on the facts of this case, to
declare one view correct and the other incorrect would be to give an aura of precision
that the facts do not support, and the law does not require. Ms. Watt’s reasons for
wanting to be off for two days were entirely legitimate and important, as everyone
concerned accepted. In her view they were extenuating enough to warrant pay because
she felt she had an obligation to go, that it was not a matter of choice. From Ms.
Glavin’s point of view, th e reasons were legitimate and therefore warranted the leave,
but the grievor’s attendance was not so necessary as to warrant the term extenuating.
Extenuating and necessary are not synonyms. Nonetheless, in the context of the
clause, and the provisions o f the bereavement leave clause which does not authorize
pay for first cousins’ funerals, asking whether there is a necessity involved is a good
starting place. Extraordinary, compelling, or unforeseen necessity are all terms that
describe the circumstances in successful grievances under Article 12.2.
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In any event, the fact that the basis for Ms. Glavin’s decision not to authorize pay for the
leave was her view that the circumstances of the case did not amount to “extenuating”
inextricably intertwines the threshold issue and the assessment of the reasonability of
the denial of the request for pay in this case. The question to be decided becomes
whether Ms. Glavin’s decision, based as it was on her conclusion that the circumstances
did not warrant the term “extenuating”, offend the collective agreement’s requirement
that the grievor’s request not be unreasonably denied. In the end, the Board is not
convinced that it does. Although the grievor’s felt necessity was obviously genuine, the
necessity of being there was covered by the time off, and the circumstances are not so
compelling that it is clear that paid leave was the only reasonable employer response.
To paraphrase Arbitrator Verity’s criteria (from the above-noted Crown in Right of
Ontario case) for measuring reasonability, which serve as a useful tool for the necessary
analysis, there is no evidence that there was anything discriminatory or in bad faith
about the decision. From Ms. Glavin’s evidence it appeared to be a genuine exercise of
discretion, and there was no rigid adherence to policy. In this case, there was no
evidence of any policy, and Ms. Glavin did not feel bound by the previous occasions on
which the grievor had received paid leave, as she was not privy to the circumstances
involved. She clearly gave consideration to the merits of the grievor’s request, and took
into account all the facts presented to her as well as the advice from Human Resources.
The Board is not persuaded that Ms. Glavin based the decision on any irrelevant
considerations. The evidence that she had not heard about this particular cousin
sounded an odd note, and raised some question in this respect. However, taken in the
context of the question she was responding to when she gave this evidence, as well as
the fact that Ms. Glavin had known Ms. Watt for sixteen years, this remark appeared to
be more an expression of the fact that she did not have any information to lead her to
believe that the relationship was something more than just a cousin, rather than a fatal
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flaw. As well, there was no evidence suggesting that the grievor had provided other
information to her supervisor which she failed to take into account. Further, even
considering all the facts available at the hearing, some of which were likely not
articulated in the same detail at the time of the request, the evidence does not justify a
finding that Ms. Glavin’s assessment of the situation was unreasonable. The case boils
down to one where others might have granted the pay and been considered to have
made a reasonable, more generous decision, but that the evidence is not persuasive
that the opposite decision was unreasonable for being less generous.
For the above reasons, the grievance is denied.
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Dated this 15 day of February, 2006
___________________________________
Kathleen G. O’Neil, Chair
__ See attached dissent ___________
Sherril Murray, OPSEU Nominee
___”I concur ”__________________
Michael Riddell, College Nominee
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DISSENT OF THE UNION NOMINEE
With all due respect, this member m ust dissent from the majority.
The decision not to grant at least one day with pay was indeed unreasonable.
The supervisor was no stranger to Ms. Watt’s deeply held religious beliefs and was
informed of the distance required to travel. Ms.Watt’s religiou s beliefs and the need to
travel to the service are indeed personal extenuating circumstances.
The grievor’s evidence was unshaken. She was obligated and compelled to attend to the
funeral and it was that fact that was not given appropriate weight by the S upervisor or the
majority.
__ “Sherril Murray”__________
Sherril Murray, OPSEU Nominee
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