HomeMy WebLinkAbout1992-1260.Johnston.93-01-07
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ONTARIO EMPLOYES DE LA COURONNE
CROWN EMPLOYEES DE L'ONTARIO
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1111 GRIEVANCE COMMISSION DE
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SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO, M5G IZ8 TELEPHONE/TELEPHONE (476) 326-7388
180 RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) M5G lZ8 FACSIMILEITELE~COPIE (416) 326-1396
1260/92
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN:
OPSEU (Johnston) Grievor
- and -
The Crown in Right of ontario
ontario science Centre
(Ministry of Culture & Communications)
Employer
Before: J.H. Devlin, Vice Chairperson
For the Grievor. G. Adams
Grievance Officer
ontario Public Service Employees Union
For the Employer: Edward Johnson
Staff Relations Officer
Management Board Secretariat
Hearing: December 16, 1992
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The grievance which was filed by Norman Johnston
involves a claim for special and compassionate leave under
article 55.1. This article provides that a Deputy Minister or
his designee may grant a leave of absence with pay for not more
than 3 days each year upon special or compassionate grounds.
In this case, the Grievor initially utilized vacation
credits and subsequently sought special leave for 3 days
surrounding the birth of his child. The child was delivered by
Caesarean section on January 25, 1992, approximately 12 days
after the expected due date In fact, January 25th was the
Grievor's day off and he sought special leave for the day
preceding the birth on which an unsuccessful attempt was made to
induce labour. The Grievor also sought special leave for January
30th and 31st, the first of the two days being the date of his
wife's release from hospital. On both of these days, the Grievor
assisted with the care of the child as his wife had been advised
by her physician to rest.
The Employer granted special leave on January 24th but
denied the request for leave on January 30th and 31st. In this
regard, Deborah Powell, the Deputy Minister's designee, indicated
that while one day's leave would be granted, article 55.1 was
intended to provide leave with pay for absences "due to
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unforeseen circumstances". In Ms. Powell's view, the Grievor's
situation could not be characterized in that light.
While it is not for this Board to assess the
correctness of the Employer's decision, the exercise of
management's discretion under Article 55.1 is subject to certain
limitations: see OPSEU (Kuyntjes) and the Crown in Right of
ontario (Ministry of Transportation and Communications) GSB #
513/84. These include the requirement that the Employer act in
good faith and without discrimination and that there be a genuine
exercise of discretion in which management turns its mind to the
merits of the individual request. Further, in considering the
'request for leave, all relevant factors must be considered and
all extraneous factors rejected.
In this case, I find that management did not exercise
its discretion in accordance with the requirements set out, as in
denying the Grievor's request for leave on January 30th and 31st,
the Employer treated the existence of unforeseen circumstances as
a pre-requisite for entitlement to leave. Article 55.1, however,
provides that leave may be granted "upon special or compassionate
grounds" and while unforeseen circumstances are one of a number
of factors which might be taken into account, the existence of
such circumstances is not essential in every case. Accordingly,
I find that the Employer improperly fettered its discretion and
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failed to take into account all relevant factors in considering
the Grievor's request for leave.
In my view, it would not be practical, at this point,
to remit the matter to the ~mployer for reconsideration.
However, taking into account the circumstances surrounding the
delivery of the 'Grievor's child and the fact that leave was
requested to enable the Grievor to assist with the care of the
child while his wife recovered from surgery, I believe that it
would have been reasonable to grant his request. In the result,
the grievance is allowed and I direct that the Grievor be granted
special and compassionate leave for January 30th and 31st and
that the vacation credits utilized on those days be reinstated
As there was also some dispute as to whether the vacation credit
utilized on January 24th has been reinstated, I shall remain
seized to deal with this issue as well as for purposes of
implementation of this award.
DATED AT TORONTO, this 7th day of January, 1993.
'1 (UL k 'tJQ ~ -,L
Vice Chairperson