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Home My WebLink About2017-2911.White.19-11-06 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 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#2017-2911 UNION#2017-0248-0056 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (White) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Gail Misra Arbitrator FOR THE UNION Gregg Gray Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Laura McDonald Treasury Board Secretariat Employee Relations Advisor HEARING October 30, 2019 - 2 - DECISION [1] The Employer and the Union at the Hamilton Wentworth Detention Centre (“HWDC”) agreed to participate in mediation-arbitration in accordance with the Local Mediation-Arbitration Protocol that has been negotiated by the parties. Should mediation not result in resolution of a grievance, pursuant to the Protocol, they have agreed to a mediation-arbitration process by which each party provides the Arbitrator with their submissions setting out their respective facts and the authorities they may be relying upon. This decision is issued in accordance with the Protocol and with Article 22.16 of the collective agreement, so that it is without precedent or prejudice to any other matters between the parties, and is issued without written reasons. [2] Craig White filed a grievance dated August 12, 2017, claiming that the Employer had improperly denied his request for compassionate leave for his August 17, 2017 T19 shift. He alleged that the Employer had given as the reason for the denial that the Grievor had credits available to him to use for time off. By way of remedy, the Grievor was seeking one day of compassionate leave, and to have the lieu day that he had to take returned to him. [3] On July 25, 2017 the Grievor had filed a Leave of Absence Request (the “Request”) asking for compassionate leave for his T19 Thursday August 17, 2017 shift, which would have had him working from 7 p.m. on August 17th to 7 a.m. on August 18th. He indicated that his wife would be having surgery on the Friday morning August 18, 2017. The Grievor attached to his request form a letter dated June 23, 2017 from Dr. Persadie, which indicated that the Grievor’s spouse was scheduled for gynecological surgery on August 18, 2017. I note that letter was addressed to Dr. Bordeleau, and appears to also advise that the patient would require four weeks off work to recuperate. As such, it is not clear that the letter had been written for the Grievor or his employer. - 3 - [4] By a letter dated July 28, 2017, Mr. R. Long, from Scheduling/Staff Training/RMT, advised the Grievor that the Request had been reviewed by senior management under Article 49 of the collective agreement, and went on to state as follows: It was determined that an excused absence on short notice will be approved. As you can appreciate, it is a personal choice each one of us makes to request time off work in order to offer support to a family member. You have credits available to you to allow you to attend this pre- scheduled appointment. Please advise me as to what form of credits you would like to apply to cover your absence. [5] The letter did not state specifically that the request for compassionate leave was denied, but clearly Mr. Long was advising the Grievor that: it was up to him if he wanted to take time off work to support his wife when she went in for surgery; and, that while he was authorized to take the day off, it would have to be through one of the Grievor’s other credits. [6] Article 49 addresses Special and Compassionate Leave as follows: 49.1. A Deputy Minister or his or her designee may grant an employee leave of absence with pay for not more than three (3) days in a year upon special or compassionate grounds. 49.2. The granting of leave under this article shall not be dependent upon or charged against accumulated credits. [7] According to the Employer, Mr. Long had considered that the Grievor had been aware of his spouse’s surgery as of June 23, 2017, so he could have done a shift exchange with someone else for the shift in question. The Employer also suggests that since the Grievor’s shift would have ended at 7 a.m. on the day of the surgery, he could also have worked his shift and then taken his spouse to the hospital. It concedes that Mr. Long did not seek any further information from the Grievor, but maintains that he was not required to do so, and that he exercised his discretion appropriately in all the circumstances. - 4 - [8] There is no evidence that Mr. Long had inquired into whether the latter option was possible or not, or indeed that he had inquired about anything regarding why the Grievor was seeking the shift off as compassionate leave. Rather, it appears to have been Mr. Long’s view that it was the Grievor’s personal choice to offer support to his spouse when she was going in for surgery, and to request time off to do so, and, that the Grievor had credits available to allow him to attend “this pre-scheduled appointment”. All of which suggests that in Mr. Long’s view, compassionate leave is not available for pre-scheduled appointments and/or when an employee has other options for time off available to them. [9] The Union relies on a document that it identifies as the Employer’s “Human Resources Special and Compassionate Leave Guidelines” (last updated in 2005) (the “Guidelines”), which provide guidelines to be followed by managers when faced with requests for special and compassionate leave with pay. However, it is not clear from reading the Guidelines whether they were still in use in 2017, or indeed whether they were ever in use in this Ministry. The Employer did not recognize the document and objected to its consideration as there was no basis established that it had been in use at the time of consideration of this issue. [10] In Ontario Public Service Employees Union (Taylor et al) and Ministry of Community Safety and Correctional Services, 2014 CanLII 30090 (ON GSB), the Board outlined the factors to be considered in the proper exercise of discretion as follows: 9. In OPSEU (Kuyntjes) and Ministry of Transportation and Communications, supra, the Vice-Chair describes at page 16 the kind of considerations arbitrators take into account when assessing whether there has been a proper exercise of discretion as follows: In cases involving the exercise of managerial discretion, Boards of Arbitration generally hesitate to substitute their view for that of the decision-maker, which is a recognition of the fact that Boards have less familiarity than does the Employer with - 5 - the exigencies of the work place. However, Arbitrators must ensure that decisions are made within the confines of certain minimum standards of administrative justice. Those administrative law concepts relating to the proper exercise of discretion include the following considerations: 1) The decision must be made in good faith and without discrimination. 2) It must be a genuine exercise of discretionary power, as opposed to rigid policy adherence. 3) Consideration must be given to the merits of the individual application. 4) All relevant facts must be considered and conversely irrelevant considerations must be rejected. [11] Having considered the submissions of the parties, I find that on the face of the July 28, 2017 letter from Mr. Long, the Employer breached Article 49.2 of the collective agreement in the exercise of its discretion in this case. The Employer is not permitted to consider whether an employee has accumulated credits when considering whether to grant special or compassionate leave. It is also clear that Mr. Long assumed that as of June 23, 2017 the Grievor had been aware of the date of his spouse’s surgery, although that is not obvious since the letter was from one doctor to another. In any event, in the exercise of his discretion, Mr. Long was incorrect to consider that the Grievor had other accumulated credits, as that was an irrelevant consideration as well as a breach of the collective agreement. [12] For the reasons outlined above, the grievance is upheld. This is a case in which, pursuant to Article 49.1 of the collective agreement, it is the Deputy Minister or his or her designee who is empowered to exercise discretion regarding whether to grant an employee special or compassionate leave with pay. Therefore, as did the Board in the Taylor et al decision, cited above, I find it appropriate to refer the Grievor’s request back to the Employer in order that it may exercise its discretion - 6 - properly. I remain seized to address any issues that may arise out of the implementation of this decision. Dated at Toronto, Ontario this 6th day of November 2019. “Gail Misra” Gail Misra, Arbitrator