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HomeMy WebLinkAboutPurchase 07-02-14 IN THE MATTER OF THE COLLEGES COLLECTIVE BARGAINING ACT AND IN THE MATTER OF AN ARBITRATION BETWEEN CENTENNIAL COLLEGE OF APPLIED ARTS & TECHNOLOGY (the "Employer") -and- ONTARIO PUBLIC SERVICE EMPLOYEES UNION (the "Union") AND IN THE MATTER OF A GRIEVANCE OF COLLEEN PURCHASE (2005-0559-0179) (the "Grievor") BEFORE: C. Gordon Simmons, Chairperson Mr. Michael Riddell, College Nominee Ms Sherril Murray, Union Nominee APPEARANCES ON BEHALF OF THE EMPLOYER: Mr. Jason Green, Counsel APPEARANCES ON BEHALF OF THE UNION: Ms Robin Gordon, Counsel A hearing into this matter was held in Toronto, Ontario on December 18, 2006. - 2 - This matter involved a claim by the griever that she ought to have been granted leave with pay to attend the funeral of a close friend. She was granted leave but without pay. The union claims the employer failed to exercise its discretion properly in this case but elected instead to adopt a rigid limitation in its application of the collective agreement thereby unduly fettering its discretion. The grievor was compelled to use a vacation day credit because of the employer's refusal to grant the leave with pay. The union seeks to have the grievor's vacation day credit restored and a declaration the employer breached the collective agreement. The facts are not in dispute. The griever is a close friend to a married couple. The husband passed away due to cancer. Upon learning of the death by phone from the deceased's spouse the grievor sent an email to her supervisor, Todd Chalmers, requesting leave to attend the funeral. The email exchanges between the grievor and Mr. Chalmers are revealing. The relevant portions for our purpose are reproduced here, as follows (ex. 3): 02/28/200512:41 PM From: Colleen Purchase Subject: Funeral Hi Todd, I received news this morning that a very close friend of mine, and my family's passed away last night. Because of this unfortunate circwnstance, I would like to request a day off to attend the funeral. I would like to request Article 12.2 for either Wednesday, Mar 2nd, or Thursday, Mar 3!d. Arrangements are being made today, and I will know tonight which day it will be. It will probably be on Wednesday, but I'll let you know for sure tomorrow. Please respond to me as soon as possible. - 3 - Thank you for your consideration in this matter. 03/01/200509:16 AM From: Colleen Purchase To: Todd Chalmers Subject: Funeral Good Morning Todd, You haven't provided me with an answer to my e-mail (below) regarding the funeral. I have confirmation that it will be tomorrow, Wednesday, March 2/05. I await your response. Thanks! 03/01/2005 12:28 PM From: Todd Chalmers To: Colleen Purchase Subject: Funeral Thank you for confirming the date of this request, and I am sorry to hear of your loss. As for time off, I will grant your request under 12.1 as unpaid leave, or else you may elect to use a vacation day or lieu day. Personal leave shall not be used to exceed or expand on entitlements that are specifically covered by other articles of the collective agreement. Please let me mow. 03/01/2005 01:01 PM From: Colleen Purchase To: Todd Chalmers Subject: Funeral Therefore I take it that you are granting me time off under Article 12.1, personal leave without pay and denying me Article 12.2, personal leave with pay, to attend a funeral. Please confirm. 03/01/200504:00 PM From: Todd Chalmers To: Colleen Purchase - 4 - Subject: Funeral Yes I am granting leave under 12.1. Thanks. 03/01/2005 04:03 PM From: Colleen Purchase To: Larry Farr FYI. Please act on these 2 FYI's as grievances. [Note: one of the grievances referenced is not relevant to the issue at hand.] The emails reference arts. 12.1 and 12.2. They read as follows: 12.1 Personal Leave Without Pay Leave of absence without pay may be granted by the College for legitimate personal reasons. 12.2 Personal Leave With Pay Recognizing the over-riding responsibility to the students, leave of absence will be scheduled where possible to ensure a minimum of disruption to the educational programs and services of the College. Reasonable notice shall be given to the Supervisor concerned. Leave of absence for personal reasons, religious leave and special leave in extenuating personal circumstances may be granted at the discretion of the College without loss of pay and such requests shall not be unreasonably denied. The parties have also addressed their attention to art. 12.5 which reads: 12.5 Bereavement Leave On the death of an employee's parent, spouse (or common law spouse), child, stepchild, brother, sister, mother-in-law, father-in-law, brother-in-law, sister-in-law, son-in-law, daughter-in-law, grandparent, spouse's grandparent, grandchild or guardian, an employee shall be granted leave of absence of three (3) or more days without loss of pay in order to attend at or - 5 - make arrangements for the funeral, the duration of the leave to be at the discretion of the College. It is to be noted that art. 12.1 provides for personal leaves without pay whereas 12.2 provides leave with pay. It is agreed the emails covered the entire exchange between the grievor and Mr. Chalmers. During the hearing the grievor elaborated on her reasons for seeking a leave with pay. She knew she was not eligible to obtain bereavement leave without loss of pay because the deceased's husband was not included in the list of persons enumerated in art. 12.5. However, she said she had been very close to the couple. The wife called the grievor at work to inform her he had passed away and that she wanted the grievor to be there; indeed, she left no doubt that the grievor had to be there. My notes reveal the grievor's testimony went as follows: Q. She called. A. Yes. She told me passed away and said she wanted me there - it became - I had to be there - not just wanted to be there - I had to be there for her. The grievor acknowledged she did not comnnmicate the above sentiments to Mr. Chalmers. Mr. Chalmers stated he considered art. 12.2 but decided to grant the leave under art. 12.1 as he could not see any extenuating circwnstances in her request that would justify a leave with pay. He explained he considered "extenuating personal circumstances" involved situations such as out of one's control or totally out of the norm. - 6 - He said he has granted 12.2 leaves in the past for various situations. Examples included: to keep counsellor appointments; to attend court; to attend to a family member who was required to go to hospital for surgery. Mr. Chahners stated he had previously granted the grievor a 12.2 leave in a matter involving her daughter. However, he did not consider the grievor's request to attend a friend's funeral as falling within the meaning of extenuating personal circumstances set out in art. 12.2 He considered death as being a regular occurrence. Further, the grievor gave no indication the funeral was out of town requiring days of travel. In his response to the grievor's request he offered her the option of using a vacation day or lieu day. He said he accepts vacation days on short notice so one does not lose pay and so, too, with the taking of lieu days. The griever testified she did not have any lieu days available. Mr. Chahners stated she could have been accommodated by working another one-half or one hour a day over many days. He has accommodated employees like this in the past, including the grievor. During cross-examination Mr. Chahners acknowledged he had made his decision based solely on the email request. UNION SUBMISSION The union submits the employer is obliged under art. 12.2 to exercise reasonable discretion when considering a leave request under that article. The employee is not the one who is required to put more effort into giving more details to his/her request in order to attempt to convince the employer. That is to say, it is not the obligation of the employee to chase after the supervisor to enquire if he needs more information to - 7 - convince him to grant the leave with pay. Rather, it is the supervisor's obligation to gather sufficient information in order to give full consideration to the request and to give an explanation for its denial. Mr. Chalmers failed in his obligation to do so. Therefore, he was unable to exercise the proper discretion that is required of him in determining whether or not there existed personal extenuating circumstances that entitled the grievor to a leave with pay. This resembled a similar situation the union relies on in support of its position. In St. Clair College and OPSEU a board chaired by Arbitrator Brent dated May 15, 1985 in which the grievor in that case had been unable to attend work due to a snow storm and was denied leave with pay. The employer maintained that because the college had remained open on the day of the snow storm it had expected employees to report for work as scheduled. Employees unable to report for work due to weather conditions had the option of using vacation or lieu time in order to maintain their full weekly wage. The board commented at p.l0 as follows: ... We do not consider that the collective agreement requires the College to grant leave of absence with pay in cases of inclement weather; however, we do consider that it requires the College to properly consider that as a ground for the granting of leave with pay. For all of the reasons that we have set out above, we agree with the Union's position that the College violated Article 12.1.2 in this case by fettering its discretion under Article 12.1.1 in a manner which excluded a particular set of circumstances from ever justifying leave of absence with pay. That is, the grievor was entitled to have her particular situation examined and the College's discretion exercised in a reasonable manner pursuant to Article 12.1.2, and not to have her request regarded as unacceptable simply because it was weather conditions which rendered it impossible for her to come to work. In this situation the College did not exercise its discretion under Article 12.1.2 ... The grievance was allowed. - 8 - A similar result was reached inRe Fanshawe College and OPSEU, MacDowell Chair, dated September 3,1992. The union submitted a later Fanshawe & OPSEU decision in support of its position although the grievance failed in that case. This case dated February 15, 2006 chaired by Arbitrator O'Neil involved a request for a two-day leave of absence with pay to attend the funeral of a cousin. She was granted leave without pay and used vacation days. The grievance was dismissed. The supervisor considered her request and decided that while the grievor would like to be at her cousin's funeral it was not a requirement. At p.l0 the board wrote as follows: ... Her reason for not authorizing the pay is in essence that she did not have information which convinced her that it was so necessary for the griever to be at the funeral that it amounted to extenuating circumstances. And at p.12: ... She clearly gave consideration to the merits of the grievor's request, and took into account all the facts presented to her as well as the advice from Human Resources. While the grievance was dismissed the union relies on the decision for the proposition the supervisor in that case considered the circumstances and concluded the request did not amount to extenuating personal circumstances. That, according to the union, is not what happened in the instant situation. In further support of its position the union referred the board to Mr. Chalmers' reply at Step 1 of the grievance procedure. He wrote, in part, - 9 - Colleen, I reiterate that personal leave with pay shall not be used to exceed . or expand upon entitlements that are specifically covered by other articles of the collective agreement. It was argued Mr. Chalmers had a closed mind to the request. He simply decided she was intent upon expanding the bereavement leave entitlements set out in art. 12.5 and did not, therefore, carry out his obligation to enquire into the grievor's real reason for making her request under art. 12.2. Therefore, he unduly restricted the proper exercise of his discretion. For all of the foregoing reasons, the union asks the grievance be allowed. EMPLOYER SUBMISSION The employer submitted art. 12.2 covers circumstances when leaves are granted with pay. The employer retains sole discretion to determine if such leaves are to be granted. Article 12.2 raises three issues for the board to determine: (1) Was the leave for legitimate personal reasons; (2) Were there extenuating personal circumstances present; and (3) Was the employer's denial unreasonable? The answer to question (1) is undoubtedly yes. There had been an unfortunate death of the grievor's friend's husband. Mr. Chalmers granted the leave of absence but under art. 12.1. Were there extenuating personal circumstances present? This is a difficult question to answer. In the Fanshawe decision chaired by Arbitrator O'Neil, a decision also relied on by the union, there was no suggestion the employer was obligated to conduct a search into reasons for the request beyond what the grievor had provided. The - 10 - employer relied on Re Loyalist College and OPSEU, a decision chaired by H.D. Brown dated September 16,1996. In that case the grievor claimed the employer unreasonably denied the grievor's request for personal leave with pay to attend an uncle's funeral. The grievor's written request read: "I had to travel to Toronto to bring my father-in-law who is 80 years old and does not drive. We also had to go through the family member's personal belongings as he had never been married and he lived on his own..." The employer granted the leave but without pay. The grievor was given the option to charge the day against vacation or overtime. At p.13 the board wrote as follows: The Board finds that on the facts disclosed to the Employer by the Grievor, Mr. Butler and the members of the President's Committee who shared that information and considered it for the purposes of the application of Article 12.2 made its decision based on the material factors provided to it by the Grievor. We are satisfied that the Grievor's work performance and employment record were not factors taken into account by the Employer in its decision which we find was made by the Employer on the facts relating to the Grievor's claim under Article 12.2. Material facts which were not brought to the attention of the Employer at the time its decision was made cannot subsequently be used to dispute that decision which resulted from proper consideration of the information supplied by the Grievor. The grievance was dismissed. The employer asks that the grievance in the instant case be likewise dismissed. DECISION Articles 12.1, 12.2, and 12.5 have been the subject of a number of previous arbitration decisions. As a starting point one might begin with art. 12.5, the Bereavement Leave article. That article enumerates certain family members whose death entitles employees to leaves without loss of pay. Leaves without loss of pay may - 11 - also be granted for legitimate personal reasons as set out in art. 12.1. Article 12.2 is concerned with leaves of absence for personal reasons without loss of pay in "extenuating personal circumstances". The Brent Board in St. Clair had the following comments with respect to art. 12.2 [then 12.1.2] at p.8: When the language of Article 12.1.2 is examined, it is clear that it would be a formidable, if not impossible, task to try to catalogue all of those circumstances which could possibly qualify as being either 'personal reasons' or 'extenuating personal circumstances'. The parties no doubt used those broad general phrases to reflect the reality that there are as many 'personal reasons' and 'extenuating personal circumstances' as there are grains of sand on the beach. The intent of the provision must surely be to give the employee the right to have his/her situation examined fully before a determination is made whether or not to grant a request for leave with pay. It would be inconsistent with such a provision to allow the College to define either 'personal reasons' or 'extenuating personal circumstances' as encompassing every possible situation but one, in this case inclement weather. The union asserts the statement contained in the above comments which reads: "The intent of the provision must surely be to give the employee the right to have his/her situation examined fully before a determination is made whether or not to grant a request for leave with pay" means the employer must conduct an enquiry into the request to ensure itself it possesses all the required information necessary to make an informed decision. Only then, according to the union, can it be said the employer has properly exercised its discretion. The employer maintains it is only required to consider the information provided to it by the employee making the request. The decisions appear to support the employer's position. In Loyalist the employer made its decision based on the material factors provided to it by the grievor. Also, in Fanshawe the supervisor took into account all the facts presented to her as well as the advice from Human Resources. In neither of those decisions do we find reference to any - 12 - search or enquiry into possible missing factors that the supervisor conducted before making the decision. In turning to the instant situation once more one must ask what information did the grievor supply to her supervisor? Her email stated a very close friend passed away and requested a day off to attend the funeral. She requested her leave to be granted under art. 12.2. The date for the funeral would be provided later. The next morning she sent another email informing the date of the funeral. The supervisor replied he was granting her the leave but under art. 12.1 as unpaid leave. Mr. Chalmers said he checked with Human Resources and his supervisor for advice before making the decision but the decision was his. Based on the information contained in the grievor's request was his decision to deny the paid leave unreasonable? We do not think so. The grievor stated the leave was to attend the funeral of a friend. She admitted in testimony she wanted the leave with pay and knew she would not be eligible under art. 12.5. She was granted leave based on legitimate personal reasons. However, she believed she was entitled to leave with pay due to "extenuating personal circumstances" . It seems to us that in order for her to qualify for paid leave she was obliged to explain what, in her view, were the extenuating personal circumstances. Had she provided the information to Mr. Chalmers that she testified to in these proceedings about having to be at the funeral for the wife of the deceased, and had Mr. Chalmers not considered this information in his decision other considerations might have applied. - 13 - However, based on the information contained in her request for the leave we do not find that Mr. Chalmers acted unreasonably in arriving at his decision. There remains the issue of Mr. Chalmers' reply to Step 1 of the grievance procedure and, in particular, the second paragraph of the reply. To repeat, it reads: Colleen, I reiterate that personal leave with pay shall not be used to exceed or expand upon entitlements that are specifically covered by other articles of the collective agreement. Given the information contained in the griever's request that she requested leave to attend the funeral of a very close friend, it was only natural for Mr. Chalmers to first think in terms of a bereavement leave. But that clearly was not what was being sought. What was being requested was personal leave with pay. If the deceased had been one of the enumerated persons listed in art. 12.5 then she would have been entitled to leave without loss of pay in accordance with that article. With the information provided in her request for the leave, it is understandable that Mr. Chalmers might have thought she was simply attempting to expand the bereavement leave entitlement. But, of course, the grievor knew she was not entitled to the bereavement leave and hence her reason for resorting to art. 12.2. However, as Mr. Chalmers stated in his evidence, death is an everyday occurrence. In order for the grievor to have hoped to succeed in her request she would have had to set out in her request why she considered this leave of absence to fall within the "extenuating personal circumstances" as set out in art. 12.2. She failed to do so. The grievance must be and is hereby dismissed. - 14- Dated at Kingston, Ontario, this 14th day of February, 2007. ML~ C. Gordon Simmons Chairperson "Michael Riddell" I concur/dissent Michael Riddell College Nominee Dissent Attached. I concur/dissent Sherril Murray Union Nominee . - 15 - With all due respect, this member dissents from the majority. In my view, the panel fails to give appropriate consideration to the evidence from Todd Chalmers and indeed the responses from the employer throughout the grievance procedure (which is not reprinted in the decision but identical to Mr. Chalmers' response). In response to the grievor's request for leave under Article 12.2, Mr. Chalmers writes: "Personal leave shall not be used to exceed or expand an entitlement that is not specifically covered by other articles in the collective agreement. " The construct of this response, created by and reiterated by management throughout the grievance procedure, is clearly indicative of an employer policy parroted by a supervisor. Even Mr. Chalmers admitted that this was the "suggested wording by Human Resources" despite his insistence that the final decision was his. With all due respect to Mr. Chalmers and the HR team it is very clear that the employer has determined that this set of circumstances serves to augment bereavement leave and therefore disqualifies the grievor from accessing 12.2 which in fact represents implementing and adhering to a rigid policy. The union submitted that "at least in the O'Neil (Fanshawe and OPSEU) case, the supervisor asked the appropriate questions". In this member's view, the questions/responses regarding the issue of paid personal leave missed the scope of the article entirely. Article 12.2 contemplates the questions and answers directed to the issue of "personal extenuating circumstances". I do not accept the rationale of the Chair who writes, that the considerations framed as "Bereavement Leave is only natural under .. - 16 - the circumstances". What I do expect from this process is an underscoring of the appropriate considerations as required by Article 12.2. All of which is respectfully submitted. Sherri! Murray