Loading...
HomeMy WebLinkAboutGlenville 07-05-14 -.....-........."..".................""""....=...:.,,--_......,.......~~~.. IN THE MATTER OF AN ARBITRATION RECE~VED '; MAY 1 6 2007 BETWEEN: GRIEVANCE UEPAFHMENT Centennial College of Applied Arts and Technology, Employer, - and - Ontario Public Service Employees Union, Union BEFORE: Michael Bendel, Chair Ann E. Burke, Employer nominee Edward Seymour, Union nominee APPEARANCES: For the Union: Nazlin Mohamed, Grievance Officer Larry Goldin, President, Local 559 Larry Farr, Chief Steward Yvonne Glenville, Grievor For the Employer: Jason Green, Counsel Nancy Fisher, Manager, Labour/Management Relations Janice Hayes, Executive Director, Bibliocentre Meir Revivo, Network Infrastructure and Technology Manager, Bibliocentre Heard in Toronto, Ontario, on March 21, 2007. - 2 - ARBITRAL AWARD In her grievance, Yvonne Glenville, a Technologist in the Bibliocentre, claims that the employer violated the collective agreement by denying her request for leave without loss of pay under Article 12.2 of the collective agreement for the purpose of attending a dental appointment. The relevant provisions of the collective agreement are these: 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 concemed. 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 facts are not in dispute. The grievor is a full-time employee, whose normal hours of work are 7:30 a.m. to 3:30 p.m, Monday to Friday. - 3- On October 5, 2005, the grievor requested permission to leave work early since she was in considerable pain from a tooth she had cracked the previous evening. She had made an appointment with her dentist for the afternoon of October 5. The request for leave was verbal. The grievor's supervisor, Mr. Meir Revivo, verbally approved the request. She attended her appointment, where the dentist told her she needed a crown. He put on a temporary crown, and told her that the permanent crown would be ready in a week or ten days. He told her that she would be contacted when it was ready. On October 12, the grievor received a call from the dentist's office to say that she could now come in to have the permanent crown put in place. She made an appointment for 2:30 p.m. on October 13. Later on October 12, Mr. Meir Revivo, the grievor's supervisor, sent her an e-mail request- ing her to provide details of the previous week's leave since nothing was in writing. The grievor e-mailed back with a request that the previous week's leave be treated as personal leave with pay under Article 12.2 of the agreement. She added that she would be leaving early on October 13 "for another dental appointment to have the work completed on the tooth (permanent crown)". She asked that the October 13 time off simi- larly be treated as personal leave with pay. Later still on October 12, Mr. Revivo, after consulting Human Resources, replied to the grievor that leave with pay had been granted for the October 5 appointment, but only leave without pay would be granted for the October 13 one. The advice Mr. Revivo received from Human Resources was that the first appointment was for an emergency, for which leave under Article 12.2 was appropriate. However, according to Human - 4 - Resources, the second leave appeared to be a "scheduled appointment for which she had advance notice", which should be treated as a leave without pay under Article 12.1. In the grievance, the grievor requests that the absence on the afternoon of October 13, when she left work about 90 minutes before the end of her working day, be treated as a leave without loss of pay. The grievor testified that she regarded the appointment on October 13 as urgent. On a previous occasion; a temporary crown had fallen off during the week-end, and she experienced a lot of pain until she could get it repaired. She was therefore anxious to have the permanent crown in place as soon as possible. The installation of the permanent crown took a little more than one hour. Her dentist's office was a one-half hour drive from her office. Her dentist was not available after 5:00 p.m. on any day of the week. While the grievor therefore testified that there were special circumstances justifying a leave without loss of pay on October 13, she added that in her view leave without loss of pay should be routinely granted even for regularly scheduled medical and dental appointments. The only information the grievor provided to her supervisor concerning the October 13 appointment was what was contained in her e-mail of October 12. II Ms. Mohamed, on behalf of the union, argued that Article 12.2 required the employer to exercise its discretion in light of the merits of each individual request, and not to deny requests unreasona- bly. In this case, the employer had failed to investigate the grievor's request, and there was no indication - 5- that it considered its merits. It also failed to give reasons for its denial of the request. It appeared to have fettered its discretion by a rigid adherence to a policy of not giving leave under Article 12.2 for scheduled appointments. Ms. Mohamed referred to St. Clair ColleQe and Ontario Public Service Employees Union (unreported award of arbitrator Brent, dated May 15, 1985) and Re Seneca ColleQe and Ontario Public Service Employees Union (unreported award of arbitrator Thorne, dated July 11, 2002). Mr. Green, counsel for the employer, maintained that going to a scheduled dental appoint- ment could not constitute "extenuating personal circumstances" within the meaning of Article 12.2. There was no obligation on the employer to pay employees while they attended such appointments. The few cases that had considered the meaning of the expression "extenuating personal circumstances" had focus- sed on whether the employee had any control over the absence. The onus was on the employee, not only to prove that the absence was beyond his or her control, but also to explain to the employer at the time why the leave was required. It was not up to the employer to conduct an investigation when the employee had offered little or no information in support of a leave request. The employer's denial of paid leave was perfectly reasonable in this case. Counsel referred to Re Confederation ColleQe and Ontario Public Service Employees Union (unreported award of arbitrator O'Shea, dated August 11, 1982), Re Fanshawe ColleQe and Ontario Public Service Employees Union (unreported award of arbitrator MacDowell, dated September 3, 1992), and Re Centennial ColleQe and Ontario Public Service Employees Union (unreported award of arbitrator Simmons, dated February 14, 2007). -6- III This case was presented primarily on the basis that, in view of the circumstances, the grievor's departure from work 90 minutes early warranted leave without loss of pay, which the employer unreasonably denied, and we intend to examine the grievance on that basis. The only explanation the grievor gave her supervisor of the reason for her leave request was in her e-mail of October 12, and as a result we know with certainty exactly what information she provided in support of her request. All she told her supervisor was that she would be leaving early on Octo- ber 13 "for another dental appointment to have the work completed on the tooth (permanent crown)". While the grievor, in her testimony, provided more information as to why she regarded the appointment as urgent and why she could not attend to it outside of working hours, she did not convey that information to her supervisor before the fact. In Re Seneca Colleqe, supra, arbitrator Thorne had occasion to consider what information an employee had to give the employer on the circumstances surrounding a requested leave with pay. There, the grievor's wife was ill and he had to take care of his infant daughter. He had previously been told . by the employer that he was expected to make contingency arrangements for the care of his daughter if his wife became ill again, despite some reluctance he had expressed about committing his daughter to the care . of ~trangers. On the occasion of the disputed leave request, he was unsuccessful in trying to arrange baby- . sitting for his daughter. While he did not provide the employer with any details on these attempts, he did "[mention] something of the difficulty he had had in finding a babysitter" (page 19). The employer denied the request since "there was no information about his efforts to find child care" (page 20). The question for arbi- - 7 - trator Thorne was whether the employer should have made inquiries of the grievor on this question. In allowing the grievance, the arbitrator wrote the following (at pages 21-22): Obviously it is more likely that the discretion will be properly exercised if an employee and the College both see to it that the necessary information is brought forward, but there can be no rule about this; each case will depend on its own circumstances. In this case the griever himself mentioned his child care difficulties when he made his request...ln any event the College did ask questions about several aspects of the situation but unfortunately not about a most important factor. The result was that a relevant factor - possibly the determinative factor - was not properly consid- ered. These circumstances have unfortunately given rise to a situation in which the College did not exer- cise its discretion under Article 12.2 since it failed to consider relevant facts. It might further be said that the result was that the grievor's request was unreasonably denied. In Re Centennial Colleae, supra, a board of arbitration chaired by Mr. Simmons examined whether the employer violated the agreement by denying the grievor's request for special leave without loss of pay on the occasion of the funeral of a close friend. The majority of the board concluded that the supervi- sor had not acted unreasonably in denying the request since the grievor had provided him with so little information in support of her request. This is what the board wrote (at pages 12-13): 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 considered this information in his decision other considera- tions might have applied. 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. We do not read these two awards as contradicting each other. In Seneca Colleqe, the grievor was judged to have provided sufficient information to the employer to require it to look into the circumstances of the requested leave. On its face, the request appeared to be valid, and the employer, if it - 8 - had reservations, should have explored them with the grievor rather than deny the request. In Re Centen- nial Colleqe, on the other hand, the request for paid leave to attend the funeral of an unrelated person did not, on its face, suggest that there were any circumstances that would bring it within Article 12.2. The question we have to examine in this case therefore is whether the grievor's request for leave under Article 12.2, as communicated to the employer, referred to circumstances that would justify such a leave. In our view, that question can only be answered in the negative. On its face, the grievor's request was nothing more than a request for leave to attend a scheduled dental appointment. We do not dismiss the possibility that if there is some urgency to a medical or dental appointment or if an employee cannot arrange an appointment for outside of working hours a leave under Article 12.2 might be appropriate. However, the general understanding in our society, in our experience, is that employees cannot expect, and do not expect, their employers to pay their wages for time not worked as a result of attending all such appointments. Since the grievor provided no information to the employer to suggest that there was any urgency to her appointment or that the appointment could not be arranged outside of working hours or that there was anything else out of the ordinary about her appointment, to allow this grievance would require us to hold that employees are routinely entitled to paid leave under Article 12.2 whenever they ask for time off work to attend a medical or dental appointment. We are aware of no proper basis for any such conclusion. - 9- For the above reasons, this grievance is hereby dismissed. DATED at Thornhill, Ontario, this 14th day of May 2007. Michael Bendel, Chair .1 concur/I dissent 'lA,t:. 8 'til(tc II P 1 A v Ann E. Burke, . Employer Nominee I concur" dissent ftE. jtl1I1<;)~tj -MJ ~ g, Edward Seymour' Union Nominee