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HomeMy WebLinkAboutBrazeau 07-01-11 U.L/l.O/.,UVI .1..,).uo rAA U.L"" '-1UI ..D...1. J:\.AYJ:.J.'1, V.l1J.l1J:..1\.VJ.'1 't!:jVY":l: sf> ~ IN THE MATTER 'OF AN ARBITRATION UNDER THE ONTARIO LABOUR RELATIONS ACT RECEn/ED t, fEB 0 8 2001 BETWEEN: GRIEVANCl:: Dtt-'kKIIViENT . RENFREW COUNTY AND DISTRICT HEALTH UNIT ("the Employer") AND ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 487 ("the Union") GRIEVANCE OF SANDY BRAZEAU FINAL AWARD CHAIR: BARRY STEPHENS EMPLOYER COUNSEL: LYNN HARNDEN - Emond Harnden UNION COUNSEL: SUSAN BALLANTYNE - Raven, Cameron, Ballantyne & Yazbeck Hearing held in Pembroke, Ontario, on November 17, 2006 VL/LO/~VVI L~;VO r.~ OL~ ~Ol ~~~L 1\i\. V .1:.1'1 , \.-.IUlJ:.1\U1'l I&IVV~ A WAR D INTRODUCTION The grievor is a full time secretary with the employer. Her grievance is in relation to a claim for sick leave on December 5, 2005. The grievor alleges that she was originally to take a floating holiday on December 5, but that she became ill and reached an agreement with her supervisor, Elizabeth McLaren, to rescind the floating holiday and take sick leave instead. The grievor further alleges that the employer subsequently unilaterally revoked the mutual agreement with respect to not taking her floating holiday on December 5. The grievor seeks reinstatement of the six hours of float time and the one hour vacation pay. The employer stated at the outset of the hearing that the manner in which the union framed the grievance was different from how it had been framed prior to the arbitration. Previously, the union had alleged that the grievor had a right to alter her holiday and request sick leave at any time. However, the employer agreed to proceed with the case as framed by the union. FACTS The grievor made arrangements to use six hours of floating holiday leave and one hour of overtime so that she could take a day off on December 5, 2005. She went through the appropriate steps of ensuring that two other employees would be at work on December 5, and submitted her request on November 14. The request was checked as approved and signed by her supervisor, Ms. McLaren, Ul.fl.Of6;VU/ l.";VO rAA OL~ ~O/ ~~~L 1\i\. v .l:.1~ . \.-.IUlJ:.1\U1'l If!J UU\) on November 28. The forms for such leave requests are numbered, and this original request was on slip number 1117. The grievor testified that, on December 5, she met briefly with Ms. McLaren at the workplace. Ms. McLaren was sitting at the grievor's computer and, upon seeing the grievor, remarked that she did not look well. The grievor further testified that she advised Ms. McLaren that she was not well and had just come from her doctor, She then provided Ms. McLaren with a copy of the note from her doctor. She testified further that she then, "...asked her [Ms. McLaren] to please change my time off to sick leave, and she said she would look after my leave slip and the revisions to my time sheet." A new leave slip was not filled out and signed at that time. The grievor returned to work on December 12. Three leave slips appear to have been filled out that day, although it is not clear when or under what circumstances. All three are signed by the grievor and by Ms. McLaren. The first in sequence is numbered 883. It is filled out in such a way as to provide the grievor with sick leave to cover the entire period of her absence, including December 5. The employer asserts this slip is not valid. The other two slips are numbered 894 and 895 respectively. Slip 894 provides the grievor with sick leave for December 2, the first day of her illness, Slip 895 provides her with leave from December 6 to December 9 inclusive. The effect of these two slips, which the employer asserts are valid, is to cover all of the grievor's sick time, 2 VL/LO/'VV/ L~;V~ r.~ OL~ ~O/ ~~~L 1\i\. V .l:.1~ , \.-.I\.Jl'JL1\U1~ ~VVI except for December 5, which the employer states is to be treated as leave in accordance with slip 1117. It is not clear how or when slip 883 was created. The grievor testified that it was in Ms. McLaren's handwriting and bears her signature, as it appears it does. The grievor attended a meeting with Ms. McLaren on December 12, and at that meeting she was advised that slip 883 would have to be amended, and the amendment was reflected in slips 894 and 895, as described above. She stated she did not agree with this change, but she signed the forms in order to ensure payment, and advised Ms. McLaren she would be filing a grievance. Although present at the hearing, Ms. McLaren did not testify. SUBMISSIONS The union argues that the one hour of vacation time should be returped to the grievor, by virtue of Article 16.06, which reads: Medically reported illness of three (3) or more consecutive working days occurring during vacation and reported at the time of ilfness shall be considered sick time and not vacation time. The union takes the position that the grievor's illness lasted more than three consecutive working days, and the one hour vacation time should be reinstated. With respect to the six hours of floating holiday time, the union relies on Article 15.01 (b), which reads: 3 VL/LO/~VV/ L~;V~ rhA OL~ 00/ ~~~L 1\i\. V.l:.1'l , \.-.IUlJ:.1\U1'l IfIdVVO In addition, a floating holiday shall be granted to full-time employees at the rate of one-half day after six (6) months of employment or one day after one year's employment on a date mutually agreeable to the employee and hlslher supervisor. The second (2nd) Monday in February shall be designated as a recognized paid holiday for part-time employees in lieu of the floating holiday. The union takes the position that the grievor and her supervisor, Ms. McLaren, initially reached mutual agreement that the grievor would take a floating holiday on December 5. However, the grievor and Ms. McLaren subsequently reached a mptual agreement, on December 5, that the floating holiday would be rescinded for that day and would be used on another unspecified day. The union argues that this agreement is reflected in slip number 883, which was filled out and signed by Ms. McLaren. Since the two reached a "mutual agreement" in accordance with Article 15.01 (b), the employer could not later unilaterally reverse the agreement, as it purported to do in slip numbers 894 and 895. The employer responds that the union is wrong about the vacation time, since Article 16.06 requires that the grievor must experience three working days of illness during vacation time, Le. three days of illness on days that would otherwise have been vacation days. With respect to the floating holiday, the employer asserts that the union has the onus of demonstrating that there had been mutual agreement reached. The employer argues that, for such a proposition to succeed, the union must demonstrate that the initial agreement about December 5 was rescinded, and a different date was substituted, but there is no evidence of any agreement on a 4 VLfLOf~VV/ ~V;U~ CAa OL~ ~Ol ~~~~ 1\.J1. v Ll''<i , """.tU~n.UJ.'l ~VU~ new date. Moreover, since Article 16.05 requires mutual agreement about vacation time, the same argument applies with respect to the vacation hour. The employer challenges the grievor's evidence about the discussion with Ms. McLaren on December 5, stating that the grievor did not provide any evidence of the discussion of an alternative date, any specific agreement as to how December 5 was to be treated, or any other matters. The employer asserted that slip 883 was an "unusual document", and that the grievor could not give any details about how or when it was filled out. Given all of the above, the employer argued that the evidence discloses only that the grievor made a request on December 5 to rescind her floating holiday, but that the request was refused on December 12, and the grievance should b~ dismissed. DECISION After reviewing the evidence, it is my conclusion that the union has proven on . balance of probabilities that the grievor and her supervisor reached mutual agreement on December 5 to rescind her request for a floating hOliday and one hour of vacation on that day. The grievor's evidence in chief was that she specifically asked Ms. McLaren to change her time off to sick leave. Although this evidence was challenged in cross, the grievor was consistent in her testimony with respect to her version of the discussion. As mentioned above, Ms. McLaren did not testify, although she was apparently available. As a result, I have no other evidence to rely upon than that provided by the grievor, and I find 5 V.L/.LU/"-VVI .1."".v~ Cn.A u~'" yUI "'-D"".J. 1\il. V .1:.1'1 . \.-.Iutu::.nU1~ 19J VLU that she made the specific request of Ms. McLaren to change December 5 to sick leave, and that Ms. McLaren verbally agreed to make the change. Given the grievor's physical condition, which Ms. McLaren acknowledged at the time, it is not surprising that the two women did not fill out a new form at that moment. However, slip 883 was created, it bears Ms. McLaren's signature, and it supports the grievor's understanding of the change that was to be made. There was no specific evidence as to when this slip was created, although the grievor thought it might have been on the desk when she was brought in to discuss slip 894 and 895. The sequence of numbers and common sense would suggest that 883 was prepared and filled out prior to 894 and 895. It would make no sense at all for 883 to have been created after 894 and 895. Thus, it is my conclusion that slip 883 is evidence corroborating the grievor's testimony with respect to the understanding reached with Ms. McLaren on December 5. That being the case, it is also my conclusion that slips 894 and 895 improperly purported to unilaterally reverse the mutual agreement reached by the grievor and Ms. McLaren on December 5, as reflected in slip 883, both with respect to the vacation time and the floating holiday. I do not agree that it was necessary for the grievor and Ms. McLaren to agree on a new date for the floating holiday before the change became effective. I can read no such requirement into the collective agreement, which permits the supervisor and the affected employee to decide these matters by mutual 6 U.LI .LOt ""VU I .1..,). UD' Cn...A. U.1." '-1U I ..D,,".L nAV,J:..l,'IrI, \",o~I\.VJ.'lrl ~ UJ.J. .; . agreement. The floating holiday remains unassigned, as does vacation, until such time as there is mutual agreement for it to be scheduled. I see no reason why the parties cannot, by mutual agreement, rescinded a scheduled date, and once again treat the floating holiday, and the vacation time, as unassigned until such time as a new agreement is reached. Given all of the above, the grievance is upheld. The employer is ordered to compensate the grievor for the six hO,urs of floating holiday time and the one hour of vacation time. I will remain seized with respect to any issues related to the implementation of this award. In light of my conclusions, it is not necessary for me to rule on the union's argument with respect to Article 16.06. BarrY e' ns, Arbitrator January 11 , 2007 7