Loading...
HomeMy WebLinkAboutBennett 09-02-09 IN THE MATTER OF AN ARBITRATION BETWEEN: BEFORE: APPEARANCES: Centennial College of Applied Arts and Technology, - and - Ontario Public Service Employees Union, Michael Bendel, Chair Ann E. Burke, Employer nominee Ron Davidson, Union nominee For the Union: Muneeza Sheikh, Counsel Larry Goldin, President, Local 559 Larry Farr, Chief Steward Allan John Bennet!, Grievor For the Employer: Jason Green, Counsel Carolyn Reid, HR Consullant, Slaff Relations Gladys Watson, Director, Learning and Resource Centres Dmitry Nikiforov, Acting Manager, lRC Systems & Media Services Heard in Toronto, Ontario, on December 9,2008. Employer, Union - 2 - ARBITRAL AWARD In his grievance, Allan John Bennet!, an Audio-visual Media Technician in the LRC Media Centre, claims that the employer violated the collective agreement by denying his request for leave wilhout loss of pay under Article 12,2 of the collective agreement for the purpose of undergoing certain medical tests, 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 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. Reference was also made to a Memorandum of Understanding between the College and the unionl dated March 26,2006, which reads, in part, as follows: 1. This is to confirm the parties' understanding that "extenuating circumstances" differentiate leave requests under Article 12.2 from leave requests under Article 12.1, Hence "extenuating personal circumstances" as presented by the employee at the time of the requesl must exist in order to invoke leave pursuant to Article 12.2. - 3 - 2, The parties agree that "extenuating personal circumstances' has been interpreted to mean situations involving extraordinary, compelling or unforeseen necessity directly affecting the employee. (See: Fanshawe O'Neil: Fanshawe College and OPSEU (Wall) dec'n dated Feb. 15,22004 (O'Neil)) 3. The employer has an obligation and a right to consider each request under Article 12.2 on an individualized basis on the facts presented at the time of the request, and the employee's request will not be unreasonably denied. 4. The employee's request for leave under Article 12,2 must be legitimate and bona fide. II The facts are not in dispute. On April 25, 2007, the grievor, an employee with 39 years of service at the College, e- mailed his supervisor, Mr. Dmitry Nikiforov, to request some time off work. His e-mail read as follows: Hi Dmltry, I am requesting time.off under Article 12.2 for this coming Monday, April 30 from 1 :00 p.m. for a Medical Appointment. I have just been diagnosed with-type 2 Diabetes and need to have more blood testing done, and I need to get a prescription for a Blood Glucose Metre lli.[Q] and testing strips and also different medication depending on the results of the tests. I am also request- ing time-off for Tuesday, June 5U1 under Article 12.2 because I have to go to Centenary Hospital for a series of lests which may take most of the day. Thank you, Mr. Nikiforov replied bye-mail thai, since neither request involved "exlraordinary, compel- ling Qr unforeseen necessity", they could not be considered as coming within Article 12.2 of the collective agreement. He stated however thal he did not object 10 the grievor taking time off on the days in question. He suggested that, as regards the first date leave was requested, the grievor eilher could lake leave without pay (under Article 12.1) or could make up the time. As regards the second dale, he suggested the grievor could take leav.e without pay (under Article 12.1) or sick leave. - 4 - The grievor responded that he would make up the time for the absence on April 30 and would take sick leave on June 5, adding that he was doing this "under protest and without prejudice". There was no furlher communication between the grievor and the employer on the subject before the grievor submiUed this grievance on April 27, 2007. In his testimony, the grievor explained that, in addition to the diabetes menlloned in his e- mail, he had been diagnosed with an enlarged prostate, for which he had been referred to an urologist. The hospital appointment on June 5 was with the urologist (In facl, it turned out Ihal the appointment was at the urologist's office and not at the hospital.) The urologist only made appointments for the morning, he testified, He was specifically told by Ihe urologist's receptionist thai there was no possibility of an afternoon or evening appointment. The grievor's hours of work were 8:00 a.m. 103:30 p.m., Monday through Friday. Mr. Nikiforov, the Acting Manager, LRC Systems & Media Services, teslified that he denied the grievor's request under Article 12,2 since it referred to no compelling, extenuating or unforeseen circum- stances. The grievor's e-mail contained insufficient information to justify the granting of time off withoulloss of pay. III ,/, Ms, Sheikh, on behalf of the union, argued that the employer had arbitrarily denied the grievor's request for leave. The grievor had no flexibility as regards the timing of the appointment, which was required for valid medical reasons. The information he provided to Mr. Nikiforov was enough 10 allow him to take a decision. If Mr. Niklforov fell that more information was required, he should have asked for it, - 5 - rather than deny the request. The result was thai the employer took its decision without properly considering Ihe appropriateness of the leave requested. Ms. Sheikh referred to Re Fanshawe College and Onlario Public Service Employees Union (2005), 148 LAC. (4th) 358 (O'Neill), and Re Lovalist College and Ontario Public Service Emplovees Union (1990),9 LAC. (4th) 166 (Kruger). Mr. Green, on behalf of the employer, drew attention to the Memorandum of Understanding between the parties, which explained some of the terms used in Article 12,2. II refers to lI1extenuating personal circumstances' as presented by the employee at Ihe lime of the request" (para. 1), and to "the facts presented at Ihe time of the request" (para. 3). From this, it was obvious that an employee seeking leave under Article 12,2 had Ihe onus of placing before the employer, at the lime of the request, all the facts and circumstances which, in the employee's view, justified the granting of the leave. Jl was not up to the employer to solicitlhis information. The employer was only required to consider the facts mentioned by the employee at the time of the request. In the present case, the grievor did not even refer to an appointment with a specialist in his e-mail, merely to lests at the hospital. From the face of the request, there was nothing to indicate that there was any urgency or anything out of the ordinary about the request. Mr. Green referred to two earlier unreported awards between these parties, one by the present chair, dated May 14, 2007 ("the Glenville award"), and one by arbitrator MacDowell, dated June 13, 2008 ("the McEachran award"). IV The Memorandum of Understanding, in our view, provides a complete answer to this griev- ance. The theme running through this document, as Mr. Green emphasized in his submissions, is that an employee seeking leave with pay under Arlicle 12.2 would be well advised to make sure that he or she puts all the pertinent facts and circumstances before the employer at the time of the request. The employer has .6. no responsibility to follow up with the employee to see whether, maybe, the employee has overlooked some more persuasive or compelling facts or arguments, The employer is en tilled to base its decision on the material advanced by the employee at the time of the request. That is not only apparent from the Memoran- dum of Understanding, but also from earlier awards between these parties, including the Grenville and McEachran awards, In the,present case, the grievor's request simply referred to "blood testing" and the need to -, "get a prescription" (in respect of the request for leave on April 30) and to a "series of tests" at the hospital (in respect of the request for leave on June 5), The request has to be judged on the basis of that informa- tion, On its face, there is nothing to bring this request within Article 12,2. To uphold this grievance we would have to hold, in effect, that all blood tests, all prescription pick-ups, and all hospital tests, regardless of the circumstances, warranted a paid leave under Article 12.2, There is no basis for any such proposition. This is what the board of arbitration, chaired by Ihe present chair, stated on Ihis same topic in the Glenville award (at page 8): ...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 lime 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 thatlhe 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 entilled to paid leave under Article 12.2 whenever they ask for lime off work to aUend a medical or dental appointment. We are aware of no proper basis for any such conclusion. Whether the employer violated Article 12.2 has to be judged on the basis of the information it had at the lime of the request. It cannol be faulted for nol having considered the addillonal information provided by Ihe grievor in his testimony about his medical condition and the appointments he had to attend. - 7 - If valid, the employer's decision cannot be retroactively vitiated by reference to information which il did not possess and which it had no obligation to go looking for. This additional information is therefore irrelevant lo lhis arbitration, For these reasons, this grievance is hereby dismissed. ( DATED at Thornhill, Ontario, this 9th day of February 2009, ~~ Michael Bendel, Chair I concur/klisseAt {IA. C~ ~ ~ ~J8. t Ann E. Burke, Employer Nominee I concuf/l dissent If l 'p{/rw~)J~ " r 11&- Ron Davidson, Union Nominee