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HomeMy WebLinkAbout1991-1513.Hurtubise et al.92-07 · . ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L 'ONTARIO GRIEVANCE , C,OMMISSlON DE SETTLEMENT REGLEMENT - BOARD DES GRIEFS 180 DUNDAS STREET WESL S~TE 2t00 TORONTO, ONTAR~, M5G tZ8 ~LEPHONE/~L~PHQNE:. ~41S~ 32641385 180, ~UE DUNDAS OUEST, BUREAU 2100 TORONTO (ONTAR$O). MSG 1Z$ FACSIMJLE/~L~CO~E : (4 ~6) 326- I396 1513/91, 1902/91, 1903/91 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEEB COLLECTIVE BARGAININ~ ACT Before THE GRIEV]tNCE SETTLEMENT.BOARD BETWEEN' OPSEU (Hu~tubise et al) Grievor The Crown in' Right of Ontario (Ministry oE Revenue) Employer BEFORE: E. Ratushny Vice-Chairperson J. C. Laniel' Member F. Collict Member FORT HE M. McFadden GRIEVOR Counsel Koskie & Minsky Barristers & Solicitors FOR THE $. Patterson EMPLOYER Counsel Legal Services Branch Management Board of Cabinet HEARING June 8, 1992 1 DECISION Each of the three Grievors claims that he was denied special or compassionate leave, contrary to Article 55.1 of the Collective Agreement which provides: A Deputy Minister or his designee may grant an employer l~ave of absence with pay for not more than three (3) days in a year upon special or compassionate grounds. In Kuyntges, G.S.B. 513/8~ (Verity), this .Board established a "fourfold test" for assessing the propriety of an Employer's exercise of discretion in relation to this provision: 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} Ail relevant facts must be' considered and conversely irrelevant .consideration[s] must be rejected. Subsequent Board decisions have almost invariably used these criteria as the basis for assessing claims under this Article. These decision also have tended to quote, with approval, the following passage from Re Young (1979) 24 L.A.C. (2d) 145, at p. 147 (Swinton): An arbitration board, in subsequently assessing what the employer has done in reaching its decision,' then plays a restricted role. It must decide whether the' employer has acted reasonably and without discrimination and has turned its mind to the merits of the particular request. If satisfied that these criteria have been met, the board must deny the grievance, even if it disagrees with the result reached by the employer or if it might have reached decision other than that reached by the employer. The b6ard's concern is the reasonableness of the decision, not its "correctness" in the board's view. (See also Mailloux, G.S.B. 0087/88, at pp. 19, 20. (Picher).) However, upon closer examination, it appears as though these observations merely involve the application of the fourfold test. For example, in Culkeen G.S.B. 890/89 (Wright), the' third and fourth criteria were found to be offended where the employer's decision· fell "... shor't of a reasonable assessment o.f .the situation". There is no dispute in relation to the essential facts, which are as follows: Robert Beard This Grievor's fifteen-year-old daughter required an operation to remove bo~e spurs from her heels. The operation had been scheduled for the month of November· in 1991 but on the preceding July 12th, the Grievor received a telephone call informing him that a hospital bed had become available and ~hat. the operati~ would proceed on July 15th. His daughter was admitted to hospital on Sunday, July 14th, the operation was performed the next day and she was released on Wednesday, July 17th. At the time of her admission, the Grievor was informed that she would be required to stay "off of her feet" for approximately one week after the operation. The Grievor requested and was granted one-half day's leave under Article 55.1 for the afternoon of July 17th in order to bring his daughter .home from the hospital. However, a suitable attendant could not be arranged for Thursday, July 18th. or Friday, July 19th. The Grievor's wife, who is employed as a medical secretary, stayed home on Thursday. The Grievor stayed home on Friday. It is the denial of leave for this day which is the subject of his grievance. The daughter was confined to an upstairs bedroom with casts on both of her feet. She was unable to walk and had to crawl to the bathroom and to ~e ~ed. In view of her age, she did not have a regular baby-sitter, ordinarily, one of her grandmothers would look after her, as they did the following wee~ However, they were both unavailable for the first two days following the operation. The Grievor test'ified that there was no one else &~ailable to take care of his daughter on the two days in question. His' friends' all worked, the~only proximate relatives were unavailable and he would not leave her with a stranger. Sha~e Hurtubise This Grievor has two sons, who were aged fiue and three in June of 1991. During the night of Sunday, June 9th, the younger son was awake with a temperature of between 104 and 105 degrees and was not able to eat or drinko ~Early on Monday morning, the Grievor contacted the children's doctor's office and was advised to take the child directly to the Emergency Department of the Children's 'Hospital of Easter~ Ontario. There, it was determined that the child had· a viral infection and should be kept Under close ' surveillance for the next ·48 hours. If the conditioh worsened or the fever did not subside within 48 ~ours, he was-to be brought back to the hospital. Minor medication and fluids'were prescribed.. The Grievor was granted one day's leave under Article 55.1 for 'Monday, June 10th, when he took his son to the hospital. However, he was denied leave for the following day, when he remained home with his son and this denial' forms the basis of his grievance. Ordinarily, the son is looked after in a private home which is licenced through a day care agency. It would be contrary to provincial regulations governing day care to leave a child in his condition in such a home. ThE Grievor's wife is employed'by the Ottawa Board of Education and had applied for another position within this organization. She had been informed that testing of all employees· who had applied for this position would be conducted on Monday, June 10th and Tuesday, June llth. In effect, she was "on call" from her regular position to engage-in the necessary testing. On Monday, she asked whether her test could be Postponed· but was advised that all of the testing was to be done on the Monday .and the Tuesday. Occasionally, the mothers of the Grievor and his wife assist- in carinq for their grandchildren but, on the day in question, his mother was working and her mother was undergoing medical· testing. On some occasions, the Grievor has obtained other outside .help to care for their children but he considered this to be an emergency situation° There were no other close friends or relatives -who' could be called upon. -Bryan O'Donohue On the morning of Thursday, July 4th, the Grievor arose early and was preparing to go to work when he learned that his five-year-old daughter was ill. She had a temperature of 102.4 degrees and was vomiting and crying. She had been attending a day-camp during the first two weeks of July. During the school year, she had a regular baby-sitter who no longer was available. The Grievor's wife works in an administrative position and was unable to stay'home since she had scheduled a meeting for July 4th which could not be re-arranged. (She remained at home the following day.) It is clear that the Grievor was diligent in trying to arrange for a neighbour or friend to stay with his daughter but had exhausted all alternatives. The Grievor stayed home on July 4th and the denial of leave under Article 55.1 for this day forms the basis of his grievance. The Ministry does not have a formal policy governing Special or Compassionate Leave under Article 55.1. However, there is a draft policy which appears to-have been treated by the Employer in this case as being authoritive. It provides that special or comDassionate leave will not normally be granted in circumstances involving the sickness of family members. However, this is subject to: .... the nature of the ~relationship and-the -~ urgency/immediacy of the call on the employee's services by family obligations.'' The entire ~draft policy is attached as ~an Exhibit to this Decision. Doug'.Hi~lman is the Assessment Commissioner for the Ministry of Revenue in the Region of Ottawa-Carleton. He was the effective decision-maker 'in relation to the denial of leave to all three grievors. The evidence was clear that Mr. Hillman approached his responsibility in exercising his discretion in this area in a very serious 'and dilfgent ~manner.~ He was familiar with the draft policy and consulted it from time to time. He provided ample opportunity for-employees to submit all of the circumstances relevant to their apPlications. In marginal situations., he would meet personally with them to seek elaboration. On occasion, he would consult with others in management about specific cases. However, .he testified that he is guided only by the word "special" and not the word "compassionate" since the latter is subject to varying degrees of meaning ~and is ~ubject to wide interpretation. He referred to three questions: How does this affect the employee? How does it reflect, on other employees with similar requests? Is there a degree of urgency? He also stated. that the illness of a child is not a "special" cat~gory but a commonplace .occurrence. He would be concerned that if child 'illness were an accepted basis for special or compassionate leave, a large volume of requests could ensue. -While we have.considerable sympathy with a manager who is attempting to provide some coherence to the vague standards in Article 55.1, Mr. Hillman's articulation'~of the factors Which govern his exercise of discretion-are inadequate. First of all, he cannot simply ignore the word "compassionate" in Article 55.1o It-exists as an alternative to the word "special" and must be interpreted to. have some meaning apart from its companion. Secondly, he appears to have treated the element of "urgency" as being a pre-condition to the application of Article 55.1 in relation to family matters. Even the draft policy recognizes that the ,five cohsiderations-at page 2 are subject to an over-riding discretion. While it may be a relevant factor in most circumstances, it is not a pre-requisite in every case. Thirdly, the automatic exclusion of situations involving child illness would be unacceptable as rigid policy adherence. (In fairness to Mr. Hillman, he qualified his position on cross-examination by stating that c~ild illness would not "normally" be sufficient to warrant leave under Article 55.1 but that all~ of the circumstances would have to be considered.) Finally, ~the employer must not rely on "floodgates" arguments which say that the granting of leave in one case may set a dangerous precedent by encouraging more requests. Re Young (1979) 24 L.A.C. (2d) 145, at p. 147 (Swinton). In relation to the Beard grievance, the Employer failed to take into account the special circumstances of the sudden re- scheduling of an operation from some four months in the future to three days later.-This was an unusual turn of events which introduced an element of urgency or immediacy into the situation. It p~ovided 'special circ6mstances warranting leave in attending to the daughter when other help was not .available as well as in relation t6 bringing her home from the hospital. · In relation to Mr. Hurtubise, the Employer granted leave on the Monday since taking the child to the hospital was considered to be a special circumstance. However, the second day appears to have been treated as merely remaininq at home with an ill child. This view fails to consider the compassionate component of a parent attending personally to a very ill child during a short but crucial per~od of recovery. Medical advice was provided that if the condition should worsen or the fever not diminish over the next 48 hours, the'child was to be brought back. to the hospital. Thus an element of urgency or immediacy also was present. The child's mother and grandmothers simply were not available. Nor was there any~other reasonable alternative. We view the O'Donohue situation differently. It involved the illness of a child not requiring medical treatment on any urgent basis. While one may always have compassion for an ill child, Article 55.1 still retains an element of management discretion by use of the word "may%'. It was reasonable to deny leave under Article 55.1 where the situation involved the sickness of a family member without any further relevant circumstances. 9 Accordingly, the grievance of Mr. Beard is allowed. We order that he be granted leave-of-absence with pay upon special or compassionate grounds for July 19th. The grievanCe of Mr. Hurtubise is~ allowed. We order that he be granted leave-of- absence with pay upon special or compassionate grounds for June 11th. The grievance of Mr. O'Donohue is dismissed. We will remain s~ized in the event that there is any problem in the implementation of this award. In conclusion, we would like to adopt the comments expressed by our Colleague in Ford, G.S.B. 1528/87, Addendum, p. 3 (Collict)-. Should the parties to the Collective Agreement choose to leave the matter under the present circumstances the discretion exercised by various Managers will continue to be an irritation. This Member would recommend that the parties should endeavour to reach agreement on guidelines to assist in the administration of Article 55.1 Dated at Ottawa thisl3th day of ~uly,. 1992. ~R~u~ny,. Chairperson F. Collict, Member