Loading...
HomeMy WebLinkAbout1992-0343.Babando et al.95-12-05 r ,.".. - - :.'~ ONTARIO EMPLOYES DE LA COURONNE - CROWN EMPLOYEES DE eqNTARIO ~ ~: GRIEVANCE COMMISSION'DE .. 1111 SETTLEMENT REGLEMENT . BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO, M5G lZ8 TELEPHONEITELEPHONE (476) 326...1388 180, RUE DUNDAS OUEST BUREAU 2100, TORONTO (ONTARIO) fv15G lZ8 FACSIMILE ITELECOPIE (416) 326,..1396 GSB # 343/92 OPSEU # 92A504-510 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before \ THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Babando ~t all Grievor - and - The Crown in Right of ontario (Ministry of Health) - Employer BEFORE: J R Roberts Vice-Chairperson J Carruthers MeItl.ber F Collict Member I FOR THE D. Wright GRIEVOR Counsel Ryder, Wright, Blair & Doyle Ba~risters & Solicitors FOR.THE J Hall EMPLOYER Counsel Legal Services Branch Ministry of Health HEARING March 26, 1993 WRITTEN February 10, 13, 1995 SUBMISSIONS I I .\ I ~ I .~ ~~ 't. ~ 1 AWARD I I In thIS arbItratIOn, three grievors, Mr Bruce Babando, Mr D Gamna, and Ms. L GIgnac, claImed that the employer Improperly demed them. paId compaSSIonate leave for Tuesday~ January 14, 1992. They took the posItIOn that the employer abused its dIscretIOn under the compassIOnate leave provlSlon of the collectIve agreement when It rejected theIr claIms that a severe snowstorm that began on January 13 and stretched Into the mornmg and early afternoon of January 14 prevented them from getting In to work. The employer submItted that Its dIscretIOn was properly exercIsed. For reasons whIch follow, we agree The gnevances must be dIsmIssed. The_ employer In thIs case IS the Mental Health Center of the OntarIo Mimstry of Health located In PenetanglUshene, OntarIo The three gnevors were employed on the housekeepIng staffof thIs ) faCIlIty They worked the afternoon shift., commencing at 4.00 p.m. Mr Babando and Mr Gamna lived approxImately three miles from the faCIlIty, in Midland, Ontario Ms. GIgnac lIved In PenetanglUshene, approximately one and a half miles from the facilIty On the evemng before January 14, 1992, a severe snowstorm moved Into the I , ^ .' 2 PenetanglUshene-Midland area. By mne o'clock a.m., 20 centImeters of snow had accumulated at the nearby aIrport and another ten centimeters was expected to be receIved. The snow was accompanied by hIgh WInds at about 35 km per hour WIth gusts close to 80 kilometers per hour thIs caused consIderable dnftmg. The snowfall ended at abounwo o'clock p.m. but the WInds contmued on mto th~ early evemng. Mr Babando testIfied that the snow m hIs dnveway was about 30 centImeters deep At noon on January 14, he attempted to clear hIs drIveway WIth hIs snowblower By about 2 30 p.m., the snow had blown In agam and, once more, he cleared It WIth hIs snowblower His street had a sImilar amount of snow m it and It. had not been plowed. In fact, the street dId not get plowed until about eIght o'clock that evemng. Mr Babando mdIcated that he was aware, however, that the mam streets m Midland had. been plowed. Accordmg to.Mr Babando, he then attempted to drive hIs pIckup truck to the home ofMr Gamna, who lIved several blocks away It was theIr practIce to carpool together, WIth Mr Babando dnvmg toMr Gamna's house and the latter drIvmg them both to work the rest of the "- way However, Mr Babandogot stuck m the snow as soon as he attempted to back out opto the street. He shoveled around hIS truck in order to free It and then. drove back mto hIS dnveway .Mr Babando then telephoned Mr Gamna. Mr Gamna told Mr Babando that he had already phoned m to work to adVIse the housekeepmg department that he would not be makmg It m. He described to Mr Babando how hIs own pIckup L , I - -- ~ , . 1 i, '1/ ~. i 3 (' truck had.ended up m a dItch when he atterppted to dnve to the corner store. Apparently, Mr Gamna managed to get back on the road, but he'was so shaken up that he InnnedIately returned home even though he had not yet reached the store. Mr Babando decIded not to tp.ake any further attempt to go Into work. After that, Mr Babando said, he lIstened to the local radIO statIon and heard a report that the Ontano ProvIncIal PolIce were advIsmg people to stay of the roads. He later heard, he saId, that the cleaners on the day ShIft of the housekeepIng staffwere sent home at two o'clock p.m. that I day He also heard that the mght shIft, whIch corilmenced work at eight o'clock p.m., was called by the employer and told not to report m for work. Mr Gamna testIfied that he concluded that it was Impossible for hIm to report in for work on January 14, 1992 He saId that the snow condItIOns and road condItIons were too treacherous. He confirmed that at around one o'clock p.m., he had expenenced a near accIdent gOIng to the store as described by Mr Babando He SaId that at about 2 15 p.m., upon hIs return home, he called the housekeepmg department and left a message that he would not be m because of road condItIOns. As in Mr Babando's case, his road had not been plowed. Ms. GIgnac testIfied that at about, 11.00 a.m. on January 14, she attempted to shovel out the ~ snow from around her car She was unsuccessful. AccordIng to Ms. GIgnac, the snow was "- blowmg and dnftmg, and as fast as she shoveled, the snow was beIng blown back m. Thereafter, ) at about 1.30 p.m., Ms. GIgnac telephoned the housekeepmg department to adVIse that she ----- - ~ ., ( "' \, 4 would not be m to work that day None of the gnevors telephoned taxI companIes or publIc tranSIt to determme whether these alternatIve means of transportatI~:m might have being used. Mr.Babando te$1Ified that he gathered that there were taxIS running because hIs WIfe advIsed hIm that taxIS were bemg used to take clIents home from Arc Industries. He also mdIcated that public buses traveled to bus stops , one and a half blocks from hIs home Mr Gamna testified that he never conSIdered takmg a taxI r" because he was not about to put hIs lIfe mthe hands of a taxI dnver and, anyway, he dId not belIeve that they would take runs out of town to the faCIlIty at PenetanglUshme Ms. Gignac stated that on the mornmg of January 14, she had a telephone conversation WIth a co-worker and the latter told her that the taxIS were not runnmg. On the faIth Or-thIS, she dId not bother callmg taxI companIes herself. All of the gnevors testIfied that when they deCIded to apply for paId compassIonate leave for January 14, 1992, It was the first tI~e that they had ever done so, even though they were semor employees. Mr Babando'mdIcated that they and others sought the unujn's aSsIstance m wntmg out theIr requests and receIved thIS aSSIstance. The requests then were submItted to the SupervIsor of-the afternoon'shIft, MrG McConnell, and through hIm, to Mr J C Toppmg, the DIrector, Housekeepmg/Lmen ServIces. ) I I It appears that the procedUre was for department heads like Mr Toppmg to reVIew requests for compaSsIOn~te leave and make a recommendatIon WIth respect to each to Mr G Kytayko, the j \ '- '. 5 HOSpItal AdmmIstrator The recommendatIOns were to be accompamed by detailed reasons supportmg them. 'Fhis gaveMr Kytayko a consIderable amount of work. He testIfied that as a result of the snowstorm m questIon, he received approxImately 80 requests for compassionate \ \ leave. Most of these requests were granted. Accordmg to Mr Kytayko, only fifteen were demed. Among these were the requests of the gnevors. He accepted the recommendatIOn of Mr Toppmg that the gnevors' requests should,be demed. There were a number of reasons why Mr Toppmg deCIded to recommend demal of the greivors' I requests. All of these reasons were set forth m memqranda to Mr Kytayko accompanymg the requests. For each gnevor, they were IdentIcal. The only thIng that changed from memoramdum to memorandum was the employee's name. The reasons were set forth as follows 1 Two of my afternoon ShIft staffwho reSIde m PenetangmshIne dId report for work. 2. Three of my afternoon shIft staff who reSIde out oftown also reported for work. 3 All employees m the DIetary, Oak RIdge and RegIonal Nursmg Department's resIdmg m the Midland/PenetanglUshene area, WIth the exception of one RegIOnal / NUrse, reported for the afternoon ShIft. 4 On the day m questIon, there were two (2) taxI compames operating m both the Penetangiushene and Midland areas whIch could have bemg used by (the employee) 5 The polIce warmng, (the employee) referred to Is,'m my opmIOn, dIrected to unnecessary travel not about gomg to work, smce they say If you don't have to dnve stay off the roads. 6 With reference to us cancelmg the "specIal project team," we dId cancel It 9 ,. 6 because thIs team was not reqUIred to perform any essentIal dutIes. They were assIgned only to perform prOject work WhICh could be reassIgned at a more appropnatetIme for us whereas m (the employee's) case hIS duties are regarded as essentIal smce they are done daIly and he was therefore reqUIred to report for work. 7 Our afternoon shIft commences at 1600 hours and on the day m question the storm greatly reduced m seventy by 17 30 hours whIch would have permItted (the employee) to report for duty after that time. In closmg on the day m questIOn other staff dId report for work. If (the employee) was concerned about dnvmg m the weather condItIOns he could have used a taxI to get to work. Mr Toppmg testIfied that he lIved in PenetanglUshene, about one and a half mIles away from the facilIty He drove In to work at eIght o'clock a.m. and left work at about 2.30 p.m., and, he saId, dId not expenence any real problem m domg so As to the housekeepmg employees on the afternoon ShIft, he saId that on January 14, of twelve employees five showed up Two of these lIved m PenetanglUshIne and three lIved ,out. of town. As far as he could recall, all of these got m to work on tIme None of the seven employees who failed to show tip was recommended to receIve paId compassIonate leave. Accordmg to Mr Toppmg, on the day after January 14, he contacted bothnursmg dep~en~s at the faCIlIty They confirmed that ail nurses but one reported for work out of those who lived m the Midland-Penetangmshene area. The same held true for employees m the DIetary Department. That encompassed from seventy-five to one hundred employees. Mr TOPPIl)g stated that he also spoke to the HOSpItal'S TransportatIon Department. It was I ~.. "1 !,;., 8 Ms. Laurmalso testIfied that, as the Actmg ASSIStant DIrector of the Housekeepmg Department, It was her practIce to Inform employees who'requested paid compassIonate leave to proVIde as much detailed informatIOn as possible when draftmg theIr request. She stated that If an employee dIsplayed hIS or her request, she would check It for the necessary detaIl and'lfIt was lackmg, she would advIse them of thIs an4 suggest they add more IqformatIOn. I Mr Kytayko testIfied that, like Mr Toppmg, he made it m to work on January, 14 He saId that he arrIved at about 8.30 a.m. dwing what turned out to be the worst part of the storm. He eIther used hIS own van or automobIle. H~ saId that around 3 15 p.m. he left for home and then left hIS house at 3.30 p.m. to travel to Alabama on Vaca,tIOo. When asked what he looked for when usmg hIs dIscretion to grant or deny requests for paId compassIOnate leave, Mr Kytayko saId that he looked at the degree of hardshIp created by the cIrcumstances, I.e., whether from Illness, aCCIdent, house fire, etc.. In lookmg at thIS, he saId, he was lookmg at the degree of distress to the employee. Regardmg th~ specIfic snowstorm m questIon, Mr Kytayko saId that he looked at where the employee was located, what unusual CIrcumstances accompanIed the request--a car aCCIdent, frozen pIpes, etc. He also looked at any specific faIled efforts that the employee made to get to r work, such as attempts to take taxIS or seek asSIstance from neIghbors When asked whether he thought that he dIscnmmated upon the baSIS of locatIOn among employees who requested compassIOnate leave on the baSIS of locatIOn, Mr Kytayko saId that. he dId not thmk so He saId l ..... ---- -~-_._- " ~ 9 that locatIOn was a major consideration, but he and hIS department heads looked beyond locatIOn. In written submissIOns dated February 10, 1995, counsel for the unIOn submItted that when Mr Kytayko refused the gnevors their requests, he faIled p~operly to exerCIse hIS dIscretIOn under artIcle 55 I of the collectIve agreement t~ grant or refuse a specIal request for paId leave of absence. It was submItted that Mr Kytayko breached thIS duty by adhenng to a ngId polIcy of grantmg or denymg paId compassionate leave on the basis of the locatIOn of the employee's home, ;WIthout meamngful conSIderatIOn of the mdIvIdual employee's personal cIrcumstances. \ Reference was made to a memorandum dated February 3, 1992, that Mr Kytayko sent out to all department heads to get more mformatIOn, mcludmg mfotmation regardmg where an employee lIved. Reference was also made to eVIdence from Mr Kytayko'that he conSIdered that the storm \ ~ / was worse for employees who lIved m the townshIp than for those who lIved m Midland or Penetangwshene Counsel for the employer, on the other hand, submItted m wntten submIssIons dated February 13, 1995, that there was a proper exerCIse of dIscretIOn by Mr Kytayko It was submItted that there was no evidence that Mr Kytayko acted m a dIscnmmatory, arbItrary or unreasonable manner m denymg compasSIOnate leave to the gnevors. Mr Kytako's concern that locatIOn was a major conSIderatIOn, it was submItted, was a reasonable and common sense conSIderatIOn to take mto account. The fact was, it was submitted, that dnvmg to the faCIlIty on January 14, 1992, may ~ :fj" 10 have,been more dIfficult for the gnevors but It was not Impossible. Moreover, It was submItted,. the gnevors never explored any alternatIves to dnvmg such as takmg a taxI. Upon gIvlIig due coilSlderatlOn to the eVIdence and suhmissIOnsofthe partIes, we conclude that Mr Kytayko properly exercIsed hIS discretIon when he refused the gnevors' requests for paId compaSSIOnate leave, The JurIsprudence that has been developed by the GrIevance Settlement Board IndIcates that a managenal declSlon WIll involve a proper exerCIse of dIscretIOn If It IS made (1) in good faIth and WIthout dIscnmmatIOn, (2) reasonably and WIthout adherence to a /' ngId polIcy that forecloses reVIew and decIsIon makmg upon the ments of each mdIvIdual case, and, (3) upon conSIderatIOn of all relevant factors. See Re Kuyntjes and Ministry of Transportation and. Communications (1985), G S B..No 513/84 (Venfy), Re O'Erien and Ministry of Correctional Services (1987), G S B No 1157/86 (Gandz), and, Re Culkeen and Ministry of Correctional Services (1990), G S B No 890/89(Wnght} In the present case, It seems more than eVIdent that both Mr Toppmg and Mr Kytayko dId much more than adhere to a ngId geograprucaJ polIcy That thIS IS so, IS reflected m the memorandum Mr Topping wrote to Mr Kytayko regarding'the requests ofthe three gnevors. There does noL appear to be reference to a smgle factor such as location, but toa number of factors, mcludmg the abilIty of others m the same area to make It m to work and the failure of the gnevors to seek other means of gettIJ;1g m to work such as takmg taxIS. We cannot credIt WIth any sIgmficance tb.e fact that Mr Toppmg attached vIrtually the IdentIcal , ;- :' ~.~ <I 11 memorandum to hIS recommendatIOns regardIng the requests of the gnevors. The gnevors were I very sImilarly sItuated and theIr reasons for not attendIng work were likewIse SImIlar If not Identical. In light of thIs, it would not have bemg at all unusual for Mr T oppmg to utilize essentially the same lIst of re~sons for denYIng all three. We reJect the submISSIon ofthe umon that prIor to makIng hIs recommendation, Mr Toppmg \ I should have made further mvestIgatIon m an effort to dIscover some dIfferentIatIOn among the three gnevors~ In the first place, the onus was upon the gnevors to supply to management all of \ the factors upon WhICh they based theIr claIms for compaSSIOnate leave. Secondly, we agree with ) the observatIons made by arbItrator M. Picher In Re Mailloux and Ministry of Correctional Services (1988), G S B No 87/88 (M. Picher), that acceptmg the posItIOn of the umon would be I "tantamount to requinng the employer to conduct an InqUIry, on quasI-JudicIallmes, every tIme a request IS made by an employee whIch requires the employer's dIscretIOn." Id at 17 Finally, In thIS heanng, the gnevors have had full opportunity to present any factors that would have warranted dIfferentIatmg between the outcomes m their mdIvidual cases. In thIs, they have I -\ I fallen short of the mark. Perhaps Mr Gamna came closest WIth hIS eVIdence that he was shaken I when a car swerved m front of hIm and he was forced off the road. Yet thIs falls short of the kInd of eVIdence that would have been reqUIred to sustam hIs gnevance even m a full arbItral revIe}V \ rather than, as here, a reVIew of the exerCIse of managenal dIscretIOn. When thIs happen~d, Mr Gamna was not on hIS way to work but on his way to the store Moreover, the weather condItIOns merely played a secondary role. The primary factor in hIs bemg forced off the road was the 1 -~ ...-:-: i~ 12 \ carelessness of the other dnver In the result, then, the gnevances must be dismIssed. Dated at Toronto, Ontano, thIs 5th day of December, 1995 -- - (1. concur / Q~ ~~ J CarrUthers, Umon Member (I concur / QISieut) O:~J F Colliet, Employer Member '-- ( -..