HomeMy WebLinkAbout2018-2507.Ruttle.19-06-13 Decision
Crown Employees Grievance Settlement
Board
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Commission de
règlement des griefs
des employés de la
Couronne
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
Téléc. : (416) 326-1396
GSB# 2018-2507
UNION# 2018-0526-0033
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Ruttle) Union
- and –
The Crown in Right of Ontario
(Ministry of the Attorney General) Employer
BEFORE Joseph Carrier Arbitrator
FOR THE UNION David Ragni
Koskie Minsky LLP
Counsel
FOR THE EMPLOYER Jared Friesen
Treasury Board Secretariat
Employee Relations Advisor
HEARING June 10, 2019
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Decision
[1] In the case at hand, Mr. Michael Ruttle, a Flexible Part-Time Senior Court
Services Officer, grieved that the letter of discipline he received January 24, 2018
for insubordination, having absented himself from work without leave and against
instructions, from December 12, 2017 to December 20, 2017 was unjust.
[2] I have considered the extensive agreed statement of facts provided by Counsel
for which I thank them. I have also taken into account their able submissions. I
have concluded that the discipline was appropriate in all the circumstances and
that the letter of discipline was easily within the realm of an appropriate penalty.
[3] Since this matter came before me pursuant to Article 22.16 of the Parties
Collective Agreement, my brief and intentionally succinct reasoning is as follows:
1. The Parties’ Agreement provided that requested leaves without pay would
not be unreasonably denied.
2. At the time he actually took the leave commencing December 12, 2017,
the Grievor had previously been specifically advised not to book a planned
family vacation for that period until he received approval for his leave.
3. In October, 2017 he had booked a trip before receiving such approval. On
that earlier occasion, his supervisor, while granting the leave on short
notice, had warned him not to do so in future as approval might be denied.
4. In the current situation, the Grievor had requested the leave on November
24, 2017. His supervisor had then specifically reminded the Grievor not to
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book the trip before receiving approval for the leave. She was aware that
the Courts would be unusually busy during much of the requested leave
period. However, she did not yet deny the leave without investigating
operational requirements.
5. The supervisor performed her due diligence and determined that she
could not approve the requested leave at that time due to operational
requirements.
6. I have considered the evidence, facts and submissions and am satisfied
that the supervisor’s decision concerning operational requirements was
reasonable as was her denial for the Grievor’s request for leave during the
relevant time frame.
7. Although, he had been reminded not to book the trip on November 24, the
Grievor had proceeded to do so on November 29.
8. I am of the view that even then he was determined to take the leave with
or without approval.
9. When, on December 6, he learned of the denial, he advised the Manager
and his supervisor that he had booked the trip and would not be available
from December 12 to 20. In that discussion, he was told again that he
was expected to attend but the Grievor was adamant that he would
proceed regardless of the consequences.
10. On December 11, the Grievor’s supervisor told him that there had been no
change to operational requirements since December 6, that his leave was
not approved and that he was expected to be available.
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11. The Grievor confirmed his intention to proceed with his trip regardless,
and, indeed, he did so.
[4] In the circumstances, I find that:
a) The employer’s operational requirements were valid for the time frame
requested.
b) Therefore, the denial of the leave was not, in itself, unreasonable.
c) That the denial was not confirmed until December 6, did not make it
“unreasonable”. The Grievor was forewarned not to book the trip on
November 24 and, but for having done so, would have suffered no
damage as a result of the denial.
d) There are exceptions to the “obey now, grieve later” rule such as, that to
obey the instruction would be unsafe or illegal. However, obeying a
legitimate instruction to be available for work does not put the employee in
jeopardy nor is the harm of missing the family vacation at that time so
substantial as to trump the employer’s operational needs. (See: Black
Diamond Cheese v C.F.a.W., Local P-688, 1973 CarswellOnt 1476,
{1973} O.L.A.A. No. 65, 3 L.A.C(2nd)151).
e) Here, had the Grievor not booked the trip contrary to his supervisor’s
advice, he would have suffered no harm whatsoever but for the lost
opportunity at that specific time of a family vacation. Although
unfortunate, few employees are able to schedule holidays whenever it
suits them and/or their families.
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f) In all the circumstances, the Grievor was absent without leave contrary to
express instructions. The letter of discipline was well warranted.
g) The grievance is dismissed. The foregoing constitutes my decision in this
matter.
Dated at Toronto, Ontario this 13th day of June, 2019.
“Joseph Carrier”
Joseph Carrier, Arbitrator