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HomeMy WebLinkAbout1992-0154.Dean.93-01-11 - "; ~"': ¥'" :;:': ONTARIo ~MPLOY~-S DE LA COURONNE 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO, MSG lZ8 TELEPHONE/TELEPHONE. (416) 326-I388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO),' MSG IZ8 FACSlMILE,'T¢L~C,OPtE: (4 16) 326- ~396 154/92 IN THE MATTER OF AN ARBITI~ATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE'SETTLEMENT BOARD BETWEEN OPSEU (Dean) Grievor - and - The Crown in Right of Ontario (Ministry of Revenue) Employer BEFORE H. Finley V~ce-Chairperson J.C. Laniel Member D. Montrose Member FOR THE S. Philpott GRIEVOR Counsel Koskle & Minsky Barristers & Solicitors FOR THE S. Patterson EMPLOYER Counsel Legal Services Branch Management Board of Cabinet HEARING September 22, 1992 DECISION The Grievor, Ms. Barbara Dean grieves that ...I was granted 'one half day special leave~ when in fact I required a full day. On the Weekend of February 16 92 my personal vehicle burned and I required the Monday 17 Feb 92 to deal with the necessary author-ities. [sic] On February 21~ 19.92, Ms. Dean submitted an application for-leave for "FebrUary 17, 1992,' under Article 55 of the Collective Agreement: A~ticle 55 - SPECIAL & 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 special or compassionate grOunds. 55.2 'The granting of leave under this Article~ shall not be dependent upon or charged against accumulated. credit~. She cited the'following reason: I was unable to attend work my car had caught on fire I had to contact my. insurance to report it also to make arrangements for another car. [sic.] Following a meeting with Ms. Dean on February 27, 1992, Mr. DoUglas Hillman, the Regional ASsessment Commissioner, who is responsible for these matters, approved on February 28, 1992, a half-day leave and requested that Ms. Dean advise her supervisor, Mr. Gabe Portras,.how she would resolve the additional half-day. Ms. Dean, an Assessment Clerk, has been with the Ministry of Revenue since 1974. She is normally scheduled to work Monday to Friday from 8:00 a.m. to 4:00 p.m.. On the'evening of Sunday, February 16, 1992, she returned home at approximately 9:15 to discover that her car, which was relatively new 'and on which she relied for transportation to work, had caught fibre and suffered extensive damage. She met with a police officer that evening until 11.15 p.m., and as she was upset, slept poorly. She arose at her normal time of 5:45 the following morning, and, at approximately 8:00 a.m., telephoned the Ministry of Revenue and informed Joanne Campbell, who was sitting in for her supervisor, that she did not know whether she would be coming in at all that day and explained the reason for her absence. At 9:00 a.m. she telephoned her insurance agent who returned her call at 10:00 a'.m. and, after Ms. D~an's recounting of the incident, told her that an insurance adjuster would ,call on her that same day and that she would be able to hire a replacement vehicle at a rental agency about four blocks from her residence. The insurance adjuster arrived at approximately. 2:00/2:15 p.m., met Ms. Dean and, 'having observed and recorded the condition of the vehicle, left at approximately 2:45 P.m., informing Ms. Dean that he would telephone her concerning the rental authorization. When he had not .done so by 3:15 p.m. Ms. Dean telephoned the insurance office and finding that the adjuster was not in, asked for and received the rental approval from another representative. · She then telephoned the car rental agency and was informed that they had not yet received the authorization. However, she left for the ~agency at~ 3:30 pom., walking, first to the bank to get the required cash deposit and then to the rental agency where she arrived at 4:15 p.m.. There 'she completed the necessary paper work and departed, according to her testimony, between 4:30 and 4:40 p.m.. In her opinion, she could not have handled things more efficiently as she was dependent on the~timing of others. In 'cross examination she acknowledged she had set all the wheels in motion by 10:00 a.m., that she only required a confirmation of t.he rental, and agreed, grudgingly, that the insurance adjuster could have come and completed his report without her being there. She was, nevertheless, in her opinion, too upset to attend work. On February 18, 1992, having returned to work, Ms. Dean approached her union representative, inquired about special leave and was told to complete the appropriate~form. She explained the 2 incident, to Mr. Portras following the submission of her request and met With Mr. Hillman on February 27th. The meeting in which Ms. Dean had an opportunity to recount the incident lasted, according to her, approximately 15 minutes. This period of time Was not contradicted. .During the meeting, Mr. Hillman informed her that he believed a half-day was appropriate bUt that he would confirm this with in writing. He explained to her that in his opinion she could have handled the telephone calls from the offi~ce and that, under the circumstances, .the half-day was "fair". Ms. Dean testified that she did not believe it would have been possible to make arrangements from the office since there is one telephone for every two persons, and that the office receives a great many telephone calls during the day. She testified further that employees have ~permission 'to make reasonable use of desk Phones for personal calls, and that she had been cautioned earlier about receiving an excessive number of personal calls. She 'was also,' she testified, "not in a right frame of mind" to go to work because of the stress the incident and the loss of her automobile' had caused her. Mr. Hillman testified that he is fully aware that decisions respecting special or compassionate leave are at his discretion and that in order to ensure that he understands the situations of staff requesting such 'leaves, he seeks information from the individual's manager. He spoke to Mr. Portras in this regard, prior to.speaking with Ms. Dean. In carrying out this Procedure, he also asks for the opinions of other managers and did so in the instant case. He testified that they were of the opinion that no leave should be granted, though it was not clear from the evidence whether this consultation took place prior to his meeting with Ms. Dean 6r' subsequent to it. Mr. Hillman's notes of the meeting, which he described as "an extraction of the salient points", were submitted in evidence: I spoke to Barb Dean on Thursday, February 27, 1992 regarding her request for special and compassionate leave. 3 Her car burnt on Sunday, February 16th between the hours of 5 & 8 p.m. The next day she had to phone the insurance company and 'arrange for a rental car. I asked her approximately how much time she thought it took her to make those phone calls and arrange for the rental car - she replied, two hours. She picked up her car at 5:30 p.m. on February 16th. She was up most of the night; she was devastated and very upset. I agreed to give her one half day special and compassionate leave. I feel this is fair under those circumstances. Mr. Hillman testified.that he is guided in making decisions with respect to special or compassionate leave, by a memorandum from Persdnnel Services Branch, which sets out the arbitral framework as follows: ... Broadly speaking, the discretion must be exercised. reasonably and without discrimination. The reasonable exercise of the discretion requires the manager with the' authority to grant or deny the leave request .to enquire into the surrounding circumstances of 'each special or ~.compassionate leave reguest~ before deciding whether to grant~ or deny the request. The decision must be based on the merits of each request and be consistent with management's considerations as opposed to rigid policy adherence. ...managers are expected to make a serious effort to uncover relevant facts. Reasonable clarification of facts or reasons presented by the employee should be sought as required. The memorandum also lists appropriate subjects for consideration. As well, Mr. Hillman gave evidence that he has a practice of granting special or compassionate leave in blocks of half-days. It was his testimony that he recognized that Ms. Dean was devasted and upset and that he considered this under the 'compassionate'' leave in Article 55 although, in his opinion, he put more weight on the 'special' aspect of the leave in this case. ARGUMENT Counsel for the Union, Ms. Susan Philpott, submitted that it has been established that the 'employer'.'s discretion is .not unlimited nor 'unreviewable, and that if we decide that the decision of the Employer is improper that the Board can and should substitute its discretion for .that of the Employer. In the instant case, she maintained, the Employer has not demonstrated an objective and reasonable basis for denial of the full day and that the cut-off at a half-day was arbitrary. She argued further that, the~aspect of compassion had not been given sufficient weight and that, in her opinion, .the 'special' and the 'co.mPassi0nate' aspects should have been given equal Weight. Counsel for the Ministry, Mr. Stephen Patterson, submitted ~ that ~this particular case is borderline and that the circumstances were not exdeptional, and the decision and the exerc'ise of disc.retion of the Employer were not unreasonable. He argued that Ms. Dean agreed she had had an opportunity to present all the~ relevant facts and' that if-there were some she failed to present, then this was not the fault of the Ministry. Mr. Patterson submitted that the criteria set out in KuYntjes, infra, were complied, with and that in these circumstances, the result shoul'd be upheld by the Board and in the alternative, that the restrictions .on jurisdiction do not permit this Board to second guess the~decision of Mr. Hillmano · .counsel referred the Board to the following cases: GSB 513/84 OPSEU (Pieter B. Kuyntjes) and The Crown in Right of Ontario (Ministry of Transportation and' Communications') GSB 1099/89 OPSEU (Arora) and The Crown in Right of Ontario (Ministry.of the Environment) GSB 87/80 Ms. Evelyn Freeman and The Crown in Right of Ontario Ministry of Health GSB 0087/88 OPSEU (Dennis F. Mailloux) and The Crown in Right of Ontario (Ministry of Correctional Services) GSB 2136/91 OPSEU (Donnon) and The Crown in Right of Ontario (Ministry of Health) These cases were both instructive and helpful t0~ the Board in its consideration of this ~case. ~ DECISION T.h_e Board takes as its arbitral framework the excerpt .from Re Young and the Crown in Right-of Ontario (Ministry of Community and Social Services), 22/79,~ reported at (1979) L.A.C. 2(d), quoted in KuyntJes, supra, at page 15: ... While that article is framed in a way which appears to give management an unlimited discretion in the granting or denial of leaves of absence, in fact, that discretion must be exercised in a non-discriminatory and reasonable manner as many arbitration, awards have held: ...The employer in deciding whether 'to grant or . deny a leave of absence, must consider, the merits of the individual application. An arbitration board, in subsequently assessing what the employer has done in reaching its decision, then plays a restrictive 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 a decision other than that reached by the employer. The board'S concern is the reasonableness of the decision, not its. 'correctness' in the board's view, Leave, under this article, because of its nature, is frequently applied for, as in the case at hand, subsequent to the individual's having returned from the leave and therefore, the decisions, with respect to the granting of special and compassionate-leaves, usually take place in retrospect. One is. not, therefore, dealing with a decision which was made under 6 severe time constraints or in haste. Article 55, supra, refers in its title .to "SPECIAL & COMPASSIONATE LEAVE". The body of the artfCle speaks of "special or compassionate leave". A decision-maker may grant special leave without a compassionate component, compassionate leave, or leave which has both special and compassionate elements. .The decision-maker weighs the informati6n which he or she receives in each individual request, and exercises his or her discretion. Mr. Hillman testified that the items of the memorandum, issued for guidance by Personnel ServiceS Branch, were considered both individually and collectively before he arrived at his decision. The memorandum states, that decision-makers should be guided by two prinCiples - avoidance of discrimination, and reaSonableness. There iS no allegation that~ Mr. Hillman's decision was discriminatory. In a ~review of the exercise Of ~anageria.1 discretion, the ~ facts must be examined to determine whether in arriving at his or her decision the manager took all the relevant 'facts into account or whether he or she took irrelevant facts into account when making the decisions with respect to applicability and quantum of time. As well, the Process must be scrutinized to determine if the decision resulted in discrimination, or lack of reasonableness. Decision-making under Article 55 logically involves two discrete steps - the first involVes .applicabi!ity, the second, . quantum of time. Initially, the decision-maker must determine whether or not the situation, in his or~ her opinion, qualifies for (a) special leave (b) compassionate leave, or (c) special and compassionate leave. 7 If~ it is determined that the situation does~not merit leave .under Article 55, the quantum of. time is not then considered. If, however, the decision-maker concludes that leave under this article is appropriate, under one of the above categories, then the quantum'of time.must be assessed. Mr. Hillman consulted with the Grievor's supervisor, and with .other managers. It was clear from the evidence that his consultation with Mr. Portras took place prior to the February 27th meeting at which he told Ms. Dean that he thought one-half~ day was appropriate; it was not clear whether the Consultations with the other .managers took place prior or subsequent to the meeting, nor whether he cohsulted a second time with Mr. Portras following the February 27th meeting. This is noteworthy because the amount of information which these individuals would have had at their disposal and on which their opinions were based would ~iffer depending on the timing of the consultations. In any event, his discussions 'with his managers elicited a shared opinion from them, that this situation of the burn'ed vehicle should not qualify for special leave. Mr. Hiliman, however, weighed the facts and the compassionate element and determined otherwise. He decided that the situation actually qualified on both special and compassfonate~grounds, based on the facts that the vehicle had burned and was extensively damaged and .that the Grievor Was devastated at the time of the incident. He testified that he put more weight on 'special' than on 'compassionate' in arriving at his decision. Mr. Hillman's d~cision respecting the validity of the 'leave is not in dispute and the Board recognizes that he did not rely solely on his own perspective but took the time and made the effort both to consult others and to meet with the Grievor before arriving at his decision. The. Board is not commenting on the merits of the applicability of the special and compassionate leave in this situation. It is restricting its consideration to the~quantum of time. Once the validity of the leave has been determined, the decision-maker then turns to the question-of its duration. He or she assesses the practical time requirements of the specific special or compassionate situation and, if compassionate leave has been determined to .be appropriate, how much time, if any, should be assigned over and above the time required for practical arrangements and finally whether or not the requester has managed his or her time in a reaSonable and responsible manner in relation to the period of time requested. In each situation, another individual might have handled.the matter differently, but- the decision-maker's role is not to substitute what might have been his or her approach,· but simply to judge the manner in which the requester has 'dealt With the time he or she has been absent from work and for which the special and/or compassionate leave is being requested. The decision-maker needs to determine if the manner in which the absent time was handled was reasonable and responsible under the circumstances. Ms. Dean's request was for a full day. Mr. Hillman's -practice is to grant leave in half-day segments for administrative convenience. ~ In that context, Mr. Hillman had two choices, either a half-day's leave or a full-day's leave. Applying this then, if the application merited one hour, a half- day would be granted and if it merited 5 hours a 'full-day would be granted. It is not appropriate in assessing quantum of time to reason that the managers think that no time is appropriate, I 'believe that some time is appropriate and the requester is asking for a full day, therefore ! shall take the mid-point and grant~ a half day. The issue of the length of time required for the practicalities with which Ms. Dean had to deal and whether or not she required compassionate time over and above these, is the crux of t'his issue. Had Mr~ Hillman not determined that 9 compassionate time was appropriate the latter consideration would not need to be taken ~into account. Mr. Hillman testified that he asked Ms. Dean for a detailed' description of the .circumstances and he believed that he provided ample' opportunity for himself, to listen to her .description of this. Ms. Dean's recollection is that the meeting took approximately 15 minutes. Mr. Hillman recalls "absolutely" that Ms. Dean ~old him that two-hours were required~ in total. Ms. Dean's recollection of this is not as clear. However, the notes, which Mr. Hillman describes as '"an extraction of the salient points" (Exhibit 4), supra, and Mr. Hillman's testimony provide clues to the process. Mr. Hillman testified, during cross-examination that he heard considerably more detail about the incident during Ms. Dean's-testimony than he had heard during his meeting with her on. February 27th, 1992. He also specified that during the meeting he had heard that she waited for the agent and the adjuster but that Ms'. D~an said that "it took two hours, collectively, roughly,''. He gave evidence that he'had not suggested the two- hour time period. During the~meeting, Ms. Dean did recount the activities of the day but that was only part of the meeting. Mr~ Hillman also, quite properly, made enquiries and in doing so, ...asked her approximately how much time she thought it took her to make those phone calls and arrange for the rental, car - she replied, two hours. MS. Dean answered the question as i.t was put, but the question did not take into account the time she was required ~to wait to call the insurance agent first thing in the morning, nor her waiting time f~r his or her return call, for the arrival of the insurance adjuster, or the later wait for the rental authorization. The amount of time which Mr. Hillman focussed on became the two hours. The Board agrees with the comment set 10 forth at pages 17 and 18 of Mailloux (GSB 0087/88), supra: ...a board of arbitrafion must not lose sight of the fact that the grievor is the party with the best first~ hand knowledge of his own circumstances, and including those facts'which would justify the application of the Employer's discretion in his favour. The grievor is entitled to have. the merits of his case full°y considered: By the same token, however~ it is he who bears a commensurate responsibility to make all pertinent facts known to the managerial decision maker. Ms. Dean had not described her circumstances that day in terms of two hours, it was the question phrased as it was by Mr. Hillman~ that resulted in her reply of two hours. It is the Board's- opinion, that Ms. Dean did supply the pertinent facts at the meeting on February 27, 1992. 'Mr. Hillman arrived at his .decision by considering how'he -believes Ms. Dean should have handled the matter, based on his focus'on the'fact that "she sa'id it took. two hours, collectively, roughly.,' He has not assessed her handling of the time for which she was requesting the leave with a View to deciding whether or not she has used the duration of her absence in a reasonable and responsible manner and for the purpose for which it was granted. By taking this approach, he has excluded relevant information with the result that' his decision lacks reasonableness. The memorandum sent out by the Personnel Services Branch based on the arbitral principles which have been established and which Mr. Hillman follows in his handling of such requests, instructs decision-makers as follows: ...managers are expected to make a serious effort to uncover relevant facts. Reasonable clarification of facts or reasons presented by the employee should be sought as required. Unf'ortunately, Mr. Hillman~s genuine efforts to clarify the facts with reSpect to time, resulted in a narrowing of the focus which 11 in turn resulted in inf0rmation being excluded. The Board must now consider whether or not Ms. Dean used her time responsibly and reasonably and for the purpose Mr. Hillman granted her the special and compassionate leave. In assessing this it must borne in mind that this was not a situation which Ms. Dean had previously encountered.. In spite of the fact that Ms. Dean retired after 11.30 p.m. she got up.at her normal work-day rising time of 5~:45 a.m.. She telephoned the office to report her absence at 8:00 a.m., the ~ime the office opened, stating that she did not know if and when she would be in. In other words, she had not finally decided to be absent for the whole day at that point, although her evidence suggests that. she thought that she might be. She then telephoned the insurance agent, as the police officer had told her to do, at 9:00 a~.m., which is, probably normal opening time for an insurance office. She had to wait until approximately 10.00 a.m. for her call to~ be returned. Following her explanation of the incident, she was told that~ an insurance adjuster would .come s'ometime that day and that she would be able to rent a replacement vehicle at an agency in her area which she had particularly requested. She waited for the adjuster, who arrived at approximately 2:00 p.m.. Following the departure of the insurance adjuster, Ms. Dean waited for 'half an hour~ for him to call, as he said he would, with information about the rental authorization before taking the initiative to call~ the office and inquire as. to 'whether the authorization had been given.~ She received the authorization from another representative. At this point it was 3:30 p.m.. Her work day ends at 4:00 p.m.. She then walked to the bank to obtain the cash deposit for the car rental and thence to the c~r rental agency where she completed everything by 4:45 p.m., at the latest, according to her testimony. The rental agency closes at 6:00 p.m.. She attended work on the following day. Management has suggested that Ms. Dean could have gone to work after she spoke with the insurance agent at 10:00 a.m., dealt with other matters by telephone from her workplace, t°ld the adjuster, that he or she Could have located and inspected the burned out car without her being there, and picked up her rental car after work finished at 4:00 p.m.. Ms. Dean did not have access to a car in the morning, although she might have arranged to pick 6ne up earlier than she did° It is true that from a transportation point of view, she' could have used public transit, asked a friend to drive her, taken a taxi to work, and if she felt that she had to be present when the insurance adjuster arrived, she could have attempted to find.out.his approximate time of arrival and have 'returned to her home to meet him, either using her lunch hour or requesting further time to do so. It was also suggested by Counsel for Management that it was not.necessary for Ms. Dean to be present for the adjuster, to locate and inspect her burned out car. In spite of the fact that Ms. Dean agreed that this was~ possible, the Board is of the opinion that for her not to be there would be unusual, and that Ms. Dean responded to the expectation of the insurance agent that she should be there and that her doing so is not indicative of an avoidance of her work responsibilities. One could propose a number of different decisions and actions which Ms. Dean might have taken during this day in order to spend, some of the time at work. However, these are.not choices which she made and those choices Which the Board is evaluating are those which determined her actions that day; The Board has considered her use of the time for which she requested leave under-Article 55 and has concluded that she used this time for the purpose it was granted and that her actions that day are not indicative of an avoidance of attendance at work and were reasonable and responsible under the circumstances. Further, it is the opinion of this Board, that the compassionate component of the leave can 13 run simultaneously with the practical elements of'the special leave and that,, in this case, no separate and distinct time is required to deal with this aspect. Taking as its starting point Mr. Hillman's decision that this situation merite~ appl'ication of the special and compassionate components of Article 55, the Board has determined that Mr. Hillman's decision of a half day, based on the two-hour total time rather than Ms. Dean's day as~a whole, failed to take into account other critical factors of which he had knowledge, but which he inadvertently failed to weigh 'when making his decision, and the Board finds that his decision with respect to the quantum of time was not reasonable. Having reviewed the Grievor's use of her time on February 17th, 1992, .the Board has concluded that Ms. Dean's use of time during this day was fo~ the purposes.-for which she requested the leave, that there was' nothing untoward in her management of the time during which she was absent from work and that she used period of time for which she was absent from work on February 17, 199'2~in a responsible · and r~asonable manner. The grievance succeeds'and the Employer is ordered to credit the Grievor with a full day, rather than a half day of special and~compassionate leave under Article 55 for February 17, 1992. The Board will remain seized in the event' that the parties have difficulties implementing this decision. Jean-Claude Laniel D~uglas c. Montrose Union Member 'Employer Member Dated at TOronto, Ontario this llth day of January, 1993.