HomeMy WebLinkAbout1991-0292.Szabo.92-07-21"~ : ONTARIO EMPLOY~$ DE LA COURONNE
CROWN £MPL OYEE..S OE L 'ON FA RIO ~
GRIE¥~NCE C,OMMISSlON DE
SETTLEMENT REGLEMENT
_BOARD DES GRIEFS
18~2 DUNDAS STREET WEST, ,SUtT~,2'iO0, TORONTO. ONTARIO. MSG IZ8 TELEPHON~:,'T~LEF'~ONE (4 ~6) 326-~388
180, RUE DUNOAZ. OUEST, BUREAU 2. tO0, TORONTO (ONTARIO). MSG, 1Z8 FACSIM,~LE/T.EL~COPlE
292/91
IN THE MATTER OF AN ARBITRATION
On,er
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ;~CT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Szabo)
Grievor '
- and -
The Crown in Right of Ontario
(Ministry of the Attorney General)
Employer
BEFORE: M. Saltman Vice-Chairperson
I. Thomson Member
D. Montrose Member
FOR THE G. Leeb
GRIEVOR Grievance Officer
Ontario Public Service Employees Union
FOR THE M. Migus
EMPLOYER Staff Relations Consultant
Ministry of the Attorney General
HEARING August 13, 1991
AW3~RD
The Grievor in this case, Beverly Szabo, claims that she
was dismissed without just cause. At the outset of the l%earing,
however, the Employer claimed that the grievance was inarbitrable
as the Grievor had not been dismissed but had been declared to have
aDandoned her position pursuant to Section 20 of the ~ubli¢ Service
Act, which reads as follows:
A public servant who is absent from duty without official
leave for a period of two weeks or such longer period as is
prescribed in the regulations may by an instrument in writing
be declared by his deputy minister to have abandoned his
position, and thereupon his position becomes uacant and he
ceases to be a public servant.
The Union, on the other hand, took the position that the so-called
abandonment was, in reality, a dismissal for cause, which is arbit-
rable under the provisions of the C~own ~mplQyees Collective
~g~.tDg i%~. By agreement of the parties, the Board reserved
on the issue of arbitrability and proceeded to hear the grievance
on its merits.
The facts which are material-to a resolution of the
grievance are as follows: The Grievor commenced employment as a
Legal Secretary with the Policy Development Division of the
Ministry of the Attorney General on January 14, 1990. As a result
of a job competition, the Grievor was appointed to the probationary
staff of the classified service effective August 20, 1990. Prior
2
to September ~ 1990, the Grievor worked as a Legal Secretary for
Sandra Wayne and Richard LeSarge,
In or around July of 1990, the Grievor made plans to take
her 1991 vacation in Montevideo, Uruguay, where her husband's
cousin was being married. Evidently, the Grievor advised Ms. Wayne
and Mr. LeSarge of her plans. According to the Grievor, both
indicated their approval although in Mr. LeSarge's case, he merely
shrugged his shoulders and said'. "It seems O.K.", or words to that
effect. Although Mr. LeSarge was apparently looking at a 199%
calendar when he made this statement, it would appear that the
Grievor did not specify the dates she intended to be away or the
expected duration of the absence. Nevertheless, the Grievor
testified that she considered that approval had been given and,
based on this approval, she proceeded'to make travel arrangements
through a friend in Montevideo. After paying the appropriate
funds, the Grievor received the airline tickets for her trip to
Uruguay on or about September 4, 1990. It would appear that the
Grievor intended to be away for a period of about six weeks or, in
other words, t~ree weeks longer-than her vacation leave entitle-
ment.
At or about the same time, Stan Jolly returned from
sabbatical leave and, instead of working for Ms. Wayne and Mr.
LeSarge, the Grievor began working for Mr. Le~arge and Mr. Jolly.
Nevertheless, the Grievor did not mention her vacation plans to
3
either Mr. JoIly or to Phyllis Bartley, who was appointed office
Manager in November of 1990. The evidence indicates that prior to
Ms. Bartley's appointment, there was no Office Manager' and so
requests for leave were generally deal~t with by the lawyer or other
individual to whom the secretary was assigned. The Grievor
conceded that when she approached Ms. Wayne and Mr. Jolly in
respect of her 1990 vacation, she specified the dates for which
leave was requested, which she did nqt do in respect of ]~er 1991
vacation. Moreover, although Ms. Bartley was generally aware that
the Grievor was planning a trip to South'America (as the Grievor
had mentioned the trip in casual conversation even before Ms.
Bartley became Office Manager), it was not until December of 1990
that Ms. Bartley (or anyone else in management) became aware that
the Grievor intended to take vacation for six weeks starting at the
end of January, 1991.
As a result,, Ms. Bartley spoke with Messrs. Jolly and
LeSarge who indicated 'that, in view of the sensitive nature of the
work the Grievor would be required to perform (involving the native
~Justice~of th~Peace~programme) an~ th~ requirement for 'both of
them to be out of the office for most of the time, the Grievor
could not be spared for the period in question. Ms. Bartley
testified that she advised the Grievor that it was unlikely that
leave would be granted for such a long period of time but, in any
event, asked her to "put something in writing", which suggests that
she was prepared to give the matter further consideration.
4
Although the G~ievor agreed that she was asked to put something in
writing, she denied that there was any discussion respecting
approval of vacation .leave. According to the Grievor, leave had
already been approved by Ms. Wayne and Mr. LeSarge and she was
asked to "put something in writing" simply to apprise everyone of
the dates she intended to be away.
Accordingly, in response to Ms. Bartley's request, the
Grievor wrote the following memorandum:
December 12, 1990
Memorandum To: Phyllis Bartley
Office Manager
From: Bev. Szabo
Re: Vacation 199t
As previously discussed with Richard, Stan and yourself, I
have decided that I would now like to take the vacatiom which
I had originally planned to take in 1991 from January 25 to
March ll.
I would l~ke to take my initial 3 weeks' t991-vacation and a
combination of both compensating time and leave of absence
for a total of 6 weeks' absence from the office. .
I mentioned to you earlier that although I had planned this
vacation for some time now, I had contemplated cancelling it
due to my brother's serious illness.
Since my personal life seems to be slowly sorting itself out
now, I would like to go ahead with my plans as we will be
attending a family wedding and this was the main reason for
our trip.
If I can be ~f any assistance with respect to my leaw;, please
let me know.
Thanks again.
"Bev Szabo"
Bev. Szabo
As the memorandum indicates, the Grievor intended to
cover off her trip utilizing a combination of vacation leave,
compensatory time off and a short leave of absence. However, th9
Employer was unable to verify the Grievor's entitlement ~
compensatory time off (principally, it seems, because the Grievor
had taken work home without prior obtaining approval for overtime).
In the absence of verification and given the sensitive nature of
the work that the Grievor was required to perform in relation to
the native Justice of the Peace programme, the decision %~as made
to deny the Grievor's request. A memorandum to that effect was
sent to the Grievor on January 10, 1991:
MEMORANDUM TO: Bev Szabo
FROM: Phyllis Bartley
Office Manager
DATE: January 10, 1991
This memo is to confirm our previous conversations with
respect to your six-week vacation (and leave).
6
A~ I~advised you on numerous occasions, taking six weeks
at this particular time (January 25 - March 11) will cause a
considerable problem for Stan Jolly and Richard LeSarge.
As you are aware, Stan and Richard are planning a
conference during the period in question and part of that
planning includes extensive telephone contact with approx-
imately 80 J.P.s to set up interviews (and follow-up).
Because you are already involved in these preparations, it
could cause great difficulty and embarrassment to both Stan
and Richard if a temporary secretary (or several temps) were
hired in your absence and the work was done incorrectly or
perhaps not completed at all. This is especially likely
because Stan and Richard will be absent at least 75% of the
time and will rely on the secretary to make all the arrange-
ments. Stan and Richard have both met with you and indicated
to you that it would be disruptive to their operation to have
you away at this particular time.
I therefore wish to reiterate that approval to take ~
six week vacation and leave at this time is denied.
Should you decide that you will be away for the six-week
period, I must again inform you that dlsciplinar¥ action may
be imposed, which could lead to a recommendation for release
from employment.
'Phyllis Bartley'
Phyllis Bartley
c.c. Karen Cohl
Start Jolly
Richard LeSarge
Human Resources
Alth(~gh the Grievor claimed that this was the first she
was a4vised that leave had been denied, Ms. Bartley maintained that
she discussed the denial of leave with.the Grievor on a number of
occasions prior to issuing the memorandum of January 10th. Ms.
Bartley also testified that sometime prior to January, she advised
the Grievor that if she chose to leave without permission, termin-
ation could result. The Grieuor, however, testified that she did
7
not belieue- t~at her employment would be terminated as she had
worked diligently, particularly during a period when her brother
was terminally ill. In any event, the Grievor claimed that,
although she was advised that the Employer probably "wouldn't like"
her to go, at no time prior to January 10, 1991 was she informed
that leave was denied.
In any event, Ms. Bartley testified that subsequent to
the denial of leave, the Grievor advised her several times that as
the tickets had already been purchased, she had no choice but to
take her vacation. In light of this advice, Ms. Bartley testifie~
that she assumed, in all probability, that the Grievor would take
her vacation as planned. Ms. Bartley claimed, however, that in an
attempt to accommodate the Grievor, she indicated that she would
allow her to go for one or two weeks in order to attend the
wedding, but the Grievor refused the offer as this would hau'e meant
leaving her husband and children in Uruguay for the balance of the
time, which she found unacceptable. The Grievor denied that any
such offer was made. The Grievor also claimed that she offered to
postpone the ~-ip if the Employer agreed to pay the charge for
cancellation of her airline tickets (in the amount of some
$1400.00). Ms. Bartley testified that she did not give the
suggestion serious consideration as, in her view, permission to go
on the trip had not been given in the first instance.
8
On-J~nuary 24, 1991, the Grievor removed her personal
effects from her desk and left on vacation as planned. Prior to
leaving, the Grievor approached Ms. Bartley at about 1:30 or 2:00
p.m. and asked if she could leave work early to attend an appoint-
ment. Ms. Bartley acceded to her requsst. At no time did the
Grievor advise Ms. Bartley (or anyone else in management for that
matter) that she was leaving on vacation.
Nevertheless, the Grievor did not report for work the
following day. However, it was not until about 10:00 a.m. that
Ms. Bartley noticed her absence. She also noticed that certai~~
personal belongings were missing from the top of her desk.
Accordingly, Ms. Bartley assumed that the Grievor had gone on
vacation. Furthermore, she testified that she assumed that the
Grtevor had no intent~on of returning to work. Her assumption was
based on the fact that (1) the Grievor had taken all of her
personal belongings (pictures and the~ltke)~ and (2) the Grievor
had told one of the other secretaries that she would now be working
for Messrs. Jolly and LeSarge.
Subsequent to January 24, 1991, several attempts were
made to contact the Grievor, which proved to be unsudcessful. As
a result, on February 13, 1991, the following letter was sent:
February 13, 1991
Mrs. Beverly Szabo
9
115 Wint~gardens Trail
West Hill, Ontario
MlC 3M9
Dear Mrs. Szabo:
You failed to report to work as required on January 25,
1991. Subsequent attempts to contact you by telephone on
Monday, January 28, Wednesday, January 30 and Monday, February
4 have failed.
This is to advise you that .you must contact the under-
signed regarding your unauthorized absence by Friday, February
15, 1991, or we will consider you to have abandoned your
employment with the Policy Development Division, Ministry of
the Attorney General, and you will be released from employment
under Article 20 of the Public S~rvice ~C%o
Yours truly,
'Ann Merritt' -
Ann Merritt
Acting Deputy Director
As there was no response to the Setter, the Grievor was d!eclared
to have abandoned her position as follows:
February 19, 1991
Mrs. Beverley Szabo
115 Wintergardens Trail
West HillT-Ontario
MiC 3M9
Dear Mrs. Szabo:
Further to my letter of February 13, I991, since we have
not had any contact from you, as requested, you are hereby
released from employment with the Ministry of the Attorney
General pursuant to Article 20 of the P%~blic Serve. ce Act,
effective immediately.
Yours truly,
10
'Ann Merr~tt'
Ann Merritt
Acting Deputy Director
The Employer submitted that the Board has no jurisdiction
in this matter as the Grievor was declared to have abandoned her
position pursuant to the provisions of Section 20 of the ~ubl~
~rv.~¢e Act. The Employer further submitted that the conditions
for the application of Section 20 have been met as the Grievor was
absent without leave for a period in excess of two weeks. Finally,
the Employer submitted that, although the Grievor sought approval.-
for leave in the summer of 1990, as she did not specify the dates
she intended to be away, it cannot be said that she had permission
t° be absent. Moreover, when the Grievor did apprise the Employer
of the dates for which leave was requested, permission was denied.
The Union submitted that this was not a proper case for
a declaration of abandonment as the Employer was well aware that
the Grievor had gone on vacation and would be returning to work on
March 11, 1991. The Union further submitted that the declaration
of abandonment was not issued in ~ood faith as the Grievor was out
of the country when attempts were made to contact her. As this was
not a proper case of abandonment, the Union submitted that it must
be viewed as a dismissal for cause. The Union further submitted
that although the Grievor did not have permission to go on
11
vacation, a le~er penalty should be substituted as (1) the Griever
acted in good faith in making plans to go on vacation; (2) the
Griever was experien~ing serious personal difficulties (her brother
having been terminally ill) immediately prior to the period for
which the vacation leave was requested; and (3) the Griever apprec-
iated the seriousness of her misconduct. For these reasons, the
Union requested that the Griever be reinstated without compensation
to her former status as a probationary employee.
By way of reply, the Employer submitted that it is
unnecessary to consider whether the Griever intended to return t~
work following her vacation as intention is not an element of
abandonment. In any event, it was submitted that the Employer did
not know at the time the Griever left whether she had any intention
of returning to work.
The issue in this case is whether the grievance is arbit-.
table and, if so, whether termination of the Griever's employment
was justified in all of the circumstances.
Apart from Section 20 of the Public Service Act,
Subsection 18(2) of the Crown EmDloyees Collective Bargaining Act
has application to the case at hand:
In addition to any other rights o~ grievance under a
collective agreement, an employee claiming,
* * *
(c) that he has been disciplined or dismissed or
suspended from his employment without just cause,
may process such matter in accordance with the grievance
procedure provided in the collective agreement, and
failing determination under such procedure, the matter
may be processed in accordance with the procedure for
final determination applicable under section 19.
Subsection 18(2) gives an employee who is dismissed
without just cause the right to file a grievance against dismissal
and, failing resolution, to refer that grievance to arbitratio~
under Section 19 of the Act. Section 20 of the Public Ser¥~ce Act
provides that an employee who has been absent from work for a
period of two weeks or longer without official leave may be
declared by the Deputy Minister to have abandoned his or her
position. Once a declaration has been made, the Board has no
jurisdiction to deal with the matter unless the abandonment is, in
reality, a dismissal for cause: see Ta~ 1/76; Ro~ 6/78; Jo~e
1098/87.
In t~Tis case, the evidence indicates that the Grievor,
who was a "public servant" within the meaning of Subsection l(g)
of the ~u~ltc Se~¥~ce ~ct, was absent from work for a period in
excess of two weeks when a written declaration of abandonment was
issued. Although the Union submitted that this was not a proper
case of abandonment as the Employer knew that the Grievor intended
to return to work following her vacation, it was held in Ta~ that
13
an employee mat be declared to have abandoned his or her position
regardless of the employee's actual intention or, in other words,
even if the employee is intending to return to work. Moreo~er, as
to the suggestion that there was some requirement to notify the
Grievor prior to issuing a declaration of abandonment, it should
be noted that there is no such requirement in Section 20 of the
Publ.~c Service Act.
There is a requirement, however, that the Grievor must
have been absent "without official leave"-. In this regard, the
evidence indicates that, prior to the appointment of Ms. Bartles-
as Office Manager, the practice for approval of vscation leave was
for an employee to approach her immediate supervisor (who, in the
case of a secretary, would have been the lawyer or other
individual to whom the secretary was assigned). In this case,
although the Grievor approached Ms. Wayne and Mr. LeSarge, to whom
she was assigned in the summer of 1990, with a request for vacation
leave, she made no reference to the dates for which leave was
requested. She also failed to mention that she intended to take
vacation for ~ six-week period although she was entitled to
vacation for three weeks only. In these circumstances, although
Ms. Wayne and Mr. LeSarge gave general assent to the Grievur's
request, as they were not apprised of the period for which leave
was requested, it cannot be said that they approved leave for the
period in question, namely, January 25 to March 11, 1991.
F~r~ermore, when the Grievor apprised the Employer in
mid-December that she intended to take vacation for a six-week
period starting at the end of January, she was told that leave
would probably not be granted. In any event, the Grievor was asked
to put her request in writing. In response to her written request,
the Grievor was advised that leave had been denied. Although the
Grievor claimed that she was not advised of the denial of leave
until January 10, 1991, the evidence of Ms. Bartley indicates that
she was informed of the denial on numerous occasions prior to
January 10th.
In these circumstances, it must be concluded that the
Grievor was absent from duty without official leave from January
25 to February 19, 1991, a period well in excess of the minimum
period for the application of Section 20 of the Publ~Q Service Act.
As the conditions for the application of Section 20 were met, the
Employer was entitled to issue a declaration of abandonment and the
Board has no jurisdiction to deal with the matter. Accordingly,
the grievance must be dismissed.
DATE~AT TORONTO, this 2is£daY of July, 1992.
~. Sal£man, Vice-Chairperson
-I.
D. Mo'ntrose, ~ember