Loading...
HomeMy WebLinkAbout2002-1438.Neeb.03-01-31 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 1438/02 UNION# 2002-0121-0008 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Neeb) Grievor - and - The Crown In RIght of Ontano (Mimstry of FInance) Employer BEFORE RandI H. Abramsky Vice-Chair FOR THE UNION Don MartIn Gnevance Officer Ontano PublIc ServIce Employees Umon FOR THE EMPLOYER Richard Novak Labour RelatIOns Analyst Mimstry of FInance HEARING January 17 2003 2 AWARD The gnevor Gwendolyn Neeb alleges that the Employer Improperly demed her request for three days of leave wIth pay pursuant to ArtIcle 49 of the collectIve agreement. ArtIcle 49 1 states A Deputy Mimster or hIS or her 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 Facts The facts show that on May 8 2002, the gnevor submItted a request for vacatIOn leave for the penod June 14 2002 to June 25 2002 That request was approved by the gnevor's manager and staff were scheduled to accommodate the gnevor's vacatIOn request. At the tIme the gnevor made her vacatIOn request, she was aware that her manager was takIng a leave of absence, begInmng In mId-June AccordIng to the gnevor she requested her vacatIOn dates to aVOId, If possIble, workIng wIth a co-worker wIth whom she had expenenced dIfficultIes, wIthout the manager beIng present. Management was unaware of the reasons behInd the gnevor's vacatIOn request, but It was aware of the personalIty conflIct between the two employees AccordIng to the Employer It took steps at the tIme and contInues to take steps to address thIS conflIct. Subsequently the gnevor came to belIeve that the co-worker In questIOn would be temporanly actIng as the supervIsor untIl an actIng manager could be found. Management contends that the employee's role was non-supervIsory and that thIS was dIscussed wIth the gnevor at the tIme 3 On June 21 2002, dunng the gnevor's vacatIOn, she went to the office and dIscovered that an actIng manager Ms TaIt, was In place On June 28 2002, after her return to work, the gnevor requested that the last three days of her vacatIOn - June 21 June 24 and June 25 the dates whIch occurred after her dIscovery of a new actIng manager - be treated as paid leave under ArtIcle 49 of the collectIve agreement. The gnevor's wntten request states that the request was due to a "pOIsoned work envIronment" and that she would have come back to work for June 21 June 24 and June 25 If she had been Informed that a new manager would be In place At the tIme she left on vacatIOn, the Employer had not known when the new manager would be startIng. AccordIng to the Employer management dIscussed the gnevor's request and the reasons for It and consIdered all of the relevant facts based on theIr knowledge of the CIrcumstances and decIded to deny the request. Positions of the Parties For the Union CItIng OSPEU (Malyou) and Ministry of Revenue (1989), GSB No 1129/88 (Roberts) the Umon argued that management must exerCIse ItS dIscretIOn under ArtIcle 49 "reasonably" whIch means 1 The decIsIOn must be made In good faith and wIthout dISCnmInatIOn. 2 It must be a genUIne exerCIse of dIscretIOnary power as opposed to a ngId polIcy adherence 3 ConsIderatIOn must be gIven to the ments of the IndIVIdual applIcatIOn under reVIew 4 4 All relevant facts must be consIdered and conversely Irrelevant consIderatIOns must be reJ ected. (p 3 CItIng Re Kuyntjes and Ministry of Transportation and Communications (1984) GSB No 513/84 (Venty) at p 16) The Umon asserts that the Employer provIded the gnevor wIth no explanatIOn for ItS deCISIOn at the tIme, nor at the heanng and thus faIled to satIsfy the standards for eXerCISIng ItS dIscretIOn reasonably For the Employer The Employer asserts that all of the cntena set forth above were satIsfied In thIS case It submIts that the gnevor's request to SubstItute her vacatIOn days for paid leave days, based on a personalIty conflIct, dId not ment the grantIng of such leave Decision Based on the facts presented, I conclude that the gnevance should be dIsmIssed. The reasons set forth by the gnevor for her request - that she learned that a new manager had been appoInted - do not constItute "specIal or compassIOnate grounds" wIthIn the meamng of ArtIcle 49 Her dIscovery that a new manager had been appoInted changed the CIrcumstances upon whIch her ongInal vacatIOn request was made But that change does not mean that the Mimstry exercIsed ItS dIscretIOn unreasonably when It demed the gnevor's request to convert the last three days of her vacatIOn to paid specIal and compassIOnate leave under ArtIcle 49 5 The eVIdence shows that the Employer fully consIdered her request and the reasons for It. There IS no eVIdence that the decIsIOn was not made In good faith or made wIth dISCnmInatIOn. There IS no eVIdence that Irrelevant factors were consIdered. AccordIngly the standards set forth In the cIted case law were met. Although It may have been preferable for the Employer to explaIn ItS reasons, there IS no reqUIrement that It do so The only reqUIrement IS that the Employer exerCIse ItS dIscretIOn reasonably and In good faith. For these reasons, the gnevance IS dIsmIssed. Issued at Toronto thIS 31 st day of January 2003 RandI H. Abramsky Vice-Chair