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HomeMy WebLinkAbout1995-1891TRATNYEK96_07_05 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT , REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONEITELEPHONE (418) 328-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) MSG 1Z8 FACSIMILEfTELECOPIE (418) 328-1396 GSB # 1891/95, 2003/95, 2225/95, 2323/95, 2324/95 OPSEU # SC-95A893, 95G363-4, 96B138, 96C228-30, 96C233 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLBCTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Tratnyek) Grievor - and - The Crown in Right of Ontario (Ministry of Community & Social Services) Employer BEFORE: W Kaplan Vice-Chairperson FOR THE M A Kuntz GRIEVOR Grievance Officer Ontario Public Service Employees Union FOR THE P Toop EMPLOYER Policy Advisor Employee Relations Board Management Board Secretariat HEARING June 27, 1996 2 Introduction This case, which involves a number of different grievances all of which arise out of the same event, proceeded to an expedited hearing in Toronto In brief, the grievor is classified as a Systems Operator 2 and is employed in the Corporate Services Division of the Ministry of Community and Social Services In 1995, the union and the employer, pursuant to the Social Contract Act, entered Into an agreement respecting part-time leaves The purpose of this agreement was to reduce the size of the civil service thereby realizing savings, provide for flexibility in the workplace, and support the personal needs and aspirations of employees Deputy Ministers were encouraged to approve requests for educational leave In 1995, the grievor was, pursuant to various other arrangements, regularly taking time off from work in order to pursue his different interests In June 1995, the grievor initiated correspondence with the employer in which he set out his interest in obtaining a leave under this new policy The immediate benefit to the grievor, if he was successful, was that employees taking an Educational Leave under this new agreement could be eligible for reimbursement of educational expenses to a maximum of $5000 The correspondence between the parties wa$ introduced into evidence It is fair to say that management displayed extraordinary patience in responding to the grievor's repeated demands for detailed answers to numerous questions This exchange was made difficult by the fact that the grievor insisted that all communication about this matter be conducted by email Indeed, the grievor rejected invitations to meet personally with human resources personnel in order to discuss the possibility of his obtaining an 3 educational leave It is also fair to say that the timing and nature of the leave the grievor wished to take was not, for an extended period, entirely clear On October 17, 1995, the grievor was advised that management had approved a six-month continuous leave of absence for educational purposes As required, the grievor was informed that his leave had to commence before the expiry of the Social Contract Act. In making this decision, the employer considered the operational needs of the project on which the grievor worked, including the fact that it involved teamwork and customer service delivery The employer also looked at the length and nature of the leave requested, the difficulty in backfilling a position where the incumbent was away approximately one day per week for several years (which, as will be set out below, is what the grievor had been considering, although he had not yet made a formal leave request), the high number of vacancies in the division which It was, at the time, having difficulty filling, the difficulties the division was having in completing its work requirements, and the operational difficulties previously occasioned by the grievor's earlier leave arrangements Ultimately, when management assessed its needs, and those of the grievor, it concluded that it could not grant the grievor's specific request. Unfortunately, the leave offered by management was not feasible for the grievor On November 6, 1995, the grievor, for the first time, formally applied for a leave asking to take off "an average of 1 day a week without pay for about 3 years." The grievor further asked that he the day off "usually be on Monday's" That request was denied, for the reasons set out above, and on November 1 0, 1995, the grievor filed the first of several 4 grievances taking issue with that decision Since that time, the grievor has presented several alternate proposals Union Argument In the union's submission, the employer had failed to follow the spirit and letter of the Educational Leave Polley, and had also Ignored its own guidelines for the interpretation and implementation of that policy Educational leaves were to be encouraged and it was extraordinary, given that fact, that the grievor's request was denied Ms Kuntz pointed out that the grievor was seeking a leave to take a correspondence course, and that this new leave was, in effect, merely an extension of his existing arrangements It is was also worth noting that as the grievor was taking a correspondence course, and as the leave could be cancelled by either party on several weeks notice, there was little stopping management, if operational requirements so dictated, from terminating the leave and brining the grievor back to work. Instead of following this sensible approach, the employer had rejected the grievor's reasonable request. There was no evidence of any balancing of interests, all that the evidence established was that the employer had, without giving the matter its careful consideration and thought, rejected the grievor's request. The union also pointed out that there was nothing in the agreement between the parties, nor in the employer's own policies, dictating the manner in which educational leaves were taken While most people might take off a block of time, it was not inconsistent with the policy, or its underlying intentIons, to allow an indIVIdual, like the grievor, to take the kind of leave which he sought. What management had to do, and what management had 5 failed to do, Ms Kuntz argued, was determine whether it could accommodate the grievor's request. The evidence strongly suggested that it could In all of these circumstances, It was the union's view that the grievance should be allowed Employer Argument Employer counsel did not dispute the assertion that there was a presumption in the employer's own policy in favour of granting educational leaves Nor did the employer take issue with the fact that there was nothing in the policy prohibiting an employee from asking, and the employer from granting, the type of leave sought in this case However, what the employer did assert was that the granting of leaves was discretionary, and in this case counsel took the position that the exercise of discretion had been proper throughout. Counsel argued that the employer bent over backwards to assist the grievor in responding to his various requests for information Counsel also noted that the employer offered the grievor a leave What it did not do, and what It could not do because of the operational concerns set out above, was grant the grievor's particular leave request. This exercise of discretion was, counsel argued, completely reasonable and should, therefore, be upheld Decision Having carefully considered the evidence and arguments of the parties, I have come to the conclusion that these grievances should be dismissed It is true enough that the leave policy was supposed to be implemented in a generous way, and that government departments were "encouraged to allow 6 employees to take advantage of these opportunities for leave" However, there is nothing in the policy that provides for the automatic granting of a leave on the mere making of an application Considered as a whole, the policy vests in management the discretion to grant or deny a leave application What is important is how that discretion is exercised, and in this case, having reviewed all of the evidence, I can only conclude that the discretion was reasonably exercised when the employer came to the conclusion that it could not grant the grievor the particular type of leave which he sought. The fact of the matter is that the evidence establishes that the grievor's division had already had some experience in providing the grievor with the type of leave he sought in November 1995, and this experience had not been salutary When management came to assess the grievor's November request, It considered how that particular request would affect its operations and determined that it would be inconsistent with those operations to offer the grievor the particular type of leave he sought. Had the employer not considered the grievor's interests I might have been inclined to uphold this grievance, at least in part. However, the eVidence establishes that the employer did consider the grievor's interests when it offered him a six-month leave There is, therefore, no basis in this case to find that management has improperly exercised its discretion under the leave agreement, and its own policies, nor is there any reason to conclude that the employer failed, in making its determination, to consider relevant factors, or to find that it considered irrelevant ones Given all of the circumstances, management's decision was completely proper 7 Accordingly, and for the foregoing reasons, the grievance is dismissed DATED at Toronto this ~th day of July 1996 IV /---- William Kaplan Vice-Chairperson