HomeMy WebLinkAboutBennett 09-04-24
IN THE MA TIER OF AN ARBITRATION UNDER THE COLLEGES
COLLECTIVE BARGAINING ACT
BETWEEN
The Ontario Public Service Employees Union and
its Local Union 559 (lithe Union" or "OPSEU")
AND
Centennial College of Applied Arts and Technology
C'the College" or lithe EmployeI'")
And in the matter of the grievances (# 755905 and # 755906) of Allan BeJll1ett, who
complains that, on two occasions; he was not given a "leave of absence .with J!f!Y" to
which he was entitled under Article 12.2 of the Collective Agreement.
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BEFORE:
RO. MacDowell (Chair)
Ann Burke (College Nominee)
Pamela Munt-Madill (Union Nominee)
APPEARANCES:
For the Union:
Danny Kastner
Val Patrick
Larry Goldin
Larry Fan
Alan BeJll1ett
(Counsel on grievance # 755905)
(Advocate on grievance # 755906)
For the College:
Jason Green
Gladys Watson
Jan Tallon
Carolyn Reid
Dmitry Nikiforov
Nancy Reid
(Counsel on both grievances)
(on grievance #755906 only)
A hearing in these matters was held in Toronto, Ontario, on September 29, 2008 (in the
case of grievance # 755905 - "the moving day grievance") and on November 10,2008 (in
the case of grievance # 755906 - "the bankruptcy court grievance").
AWARD
I - What this case is about
This arbitration proceeding arises from two grievances filed by Allan
Bennett ("the Grievor") on March 9, 2007. In each case, Mr. BeJll1ett complains that the
College has improperly denied his request for a "leave of absence, with pay". Grievance
Number 755905 pertains to a request for time off, with pay, so that Mr. Bennett could
supervise his move from one residence to another (the "moving day grievance").
Grievance Number 755906 involves a request for time off, with pay, so that Mr. Bennett
could attend at a Bankruptcy Court proceeding (the "Bankruptcy Court grievance").
In each of these instances the Grievor was told that he could have the time
off that he requested. The only question is whether the College was also required to
indemnify Mr. Bennett for the wages that he lost on those two days - which is to say: that
he should have received "personal leave with pay" and not just "personal leave".
*
The Union claims that, in each instance, the Grievor should have received
a ]2gjfi leave of absence under Article 12.2 of the Collective Agreement, because the
situation involved "extenuating personal circumstances" and the Grievor gave reasonable
notice that he wanted the time off. The College replies the Grievor was entitled to unpaid
leave under Article 12. I, but it was under no obligation to grant a "paid leave" under
Article 12.2. As the College sees it, the circumstances outlined by Mr. Bennett did not fit
within Article 12.2, nor trigger an obligation on the College to pay for time not worked.
2
II - Some mechanics and some history
A hearing in respect of grievance Number 755905 ("the movmg day
grievance'), was held on September 29,2008. A hearing in respect of grievance Number
755906 ("the Bankruptcy Court grievance"), was held on November 10, 2008. The
parties are agreed that this Board of Arbitration has jurisdiction to hear and determine
both grievances; and because these grievances involve the same parties, the same
Grievor, and the same issues, we think that it is appropriate to address the two cases
together, in a single arbitration Award.
*
As we have already noted, the resolution of this dispute, depends upon the
interpretation/application of Articles 12.1 and 12.2 of the Collective Agreement. Article
12 distinguishes between "Personal Leave Without Pav" and "Personal Leave With Pay."
as follows (emphasis added):
12.1 Personal Leave Without llay
Leave of absence without pay IntlV be granted by the College for
legitimate personal reasons.
12.2 l)ersonal Leave With Pay
Recognizing the overriding 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.
A leave of absence for personal reasons, religious leave and special
leave in extenuating personal circumstances mav be granted at the
discretion of the College without loss of pay and such request shall not
be unreasonablv denied.
3
As will be seen: there is no absolute "right' to time off work under Article
12. I or Article ] 2.2. Rather, in each case, the College has a discretion with respect to
requests for "personal leave', which "mav" be granted by the Employer in the
circumstances outlined in each clause. That discretion flows from the language of Article
12.1, and is made very explicit in Article 12.2, which also contains some additional
qualifying conditions. On the other hand, if those qualifiers are met, then a request for a
"paid leave" under Article 12.2 cannot be "unreasonably denied'.
*
The Collective Agreement does not attempt to detail the specific
circumstances in which personal leaves might be granted, nor does the Agreement
provide any express guidance about what might be encompassed by words such as
"legitimate" or "extenuating personal circumstances". However in the last couple of
years there have been quite a number of grievances at Centennial College concerning
these issues; and there have also been several decisions by boards of arbitration (see for
example: Centennial College & OPSEU (Colleen Purchase grievance) decision released
February 14, 2007 (Simmons), Centennial College & OPSEU (Yvonne Glennvil/e
grievance), decision released May 14, 2007 (Bendel), and Centennial College & OPSEU
(Sandra McEachran grievance) decision released June 17, 2008 (MacDowell). In
addition, a number of grievances were settled, (inter alia) on the basis of the following
"Memorandum of Understanding", that confirmed the parties' shared understanding of
the way in which these "leave with pay" issues were to be addressed. The Memorandum
reads this way (emphasis added):
4
1. This is to confirm the pmiies' understanding that "extenuating
circumstances" differentiate leave requests under Article ] 2.2
from leave requests under Article 12.1. Hence "extenuating
personal circumstances" as presented by the employee at the
time of the request must exist in order to invoke leave
pursuant to Article 12.2.
2. The parties agree that "extenuating personal circumstances"
has been interpreted to mean situations involving
extraordinmy, compelling or unforeseen necessity directly
affecting the employee. (See: Fanshawe O'Neil: Fanshawe
College and OPSEU (Watt) 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.
At the time of the hearings in the current dispute, "McEachran" was the
most recent decision on this issue; and, as it turned out, McEachran was the only "Article
12 case" that the parties put before us. Neither party took issue with what was said in
McEachran, nor did anyone quarrel with the cases that were referred to in McEachran.
III - An aside on credibility and some evidentiary difficulties
To the extent that credibility is an issue, we have adopted the approach of
the Courts in cases such as Fa1'11ya v. Chorney [1952] D.L.R354, at pages 356-358
(BCCA), and LandI)} v. Pratt & Whitney Canada [1996] 8 W.W.R. 511. Accordingly,
when assessing the testimony of the various witnesses, we have taken into account such
5
factors as: the demeallour of the witnesses when giving their evidence; the firmness of
their recollections; the clarity, consistency and overall plausibility of the testimony when
compared with the testimony of others and tested by cross-examination; the ability of the
witnesses to resist the tug of self-interest or self-justification when framing their answers;
the consistency or otherwise with whatever documentary material is available to assist the
witnesses or the panel in determining what must have occurred; and what seems to us to
be most probable in all the circumstances.
The facts set out below are based upon those criteria.
However, given the way in which the case unfolded, we think that we
should note that the passage of time between the relevant events and the time that the
witnesses gave their evidence may have made it difficult for them to recall the details of
what happened in each instance where the Grievor asked for time off, with pay, in 2007.
Because, as we will see later on: there were many such instances in early 2007; so it is
not surprising that the Grievor and his supervisor might have some difficulty
remembering the details of each particular request. And since there is no standardized
"form" which requires the employees to particularize such requests, the adjudication of
disputed cases may turn on what individuals "remember') of what was said, and when.
*
It will be convenient to sketch in the background in a little more detail;
then we will return to the position of the parties, and what we believe to be the most
appropriate disposition of these two grievances.
6
IV - Bacl<2round
The moving day grievance
The Grievor is an audiovisual technician who works at the College's
"Center for Creative Communications", on Cat'law Avenue, in East York. He has been an
employee ofthe College for 39 years. He is also a Local Union official.
The Carlaw Avenue facility is one of four "campuses" that are operated by
the College in the Greater Toronto Area. The Grievor's job is to oversee the use of
audiovisual equipment at the Carlaw location. The Gr]evor)s normal working hours are
from Monday to Friday, from 8.00 a.m. to 3:30 p.m.
Each College campus has its own audiovisual technician. There are also
two "IT &A V Teclmologists", who service all four campuses. These six employees report
to Dimitry Nikiforov, who is the Manager of the Learning Resource Center.
When the Grievor is absent from work, he is typically replaced by an
IT &A V Technologist, or by an employee from the nearby Library, also located at the
Carlaw site. Sometimes there is replacement for the Grievor; and sometimes there isn't.
Mr. Bennett testified that it is Mr. Nikoforov's responsibility to ensure that his work is
covered when he is absent from work; however, if the Grievor knows that he is going to
be away, he can sometimes do some of the work in advance.
7
On February 27, 2007 the Grievor advised Mr. Nikoforov that he wanted
time off, with pay, because he was moving to a new apartment. The Grievor's request is
contained in an email to Mr. Nikiforov that rcads as follows:
Hi Dimitry. I am requesting a day off under Article 12.2 of the
Support Staff Collective Agreement. The day in qucstion is
March 30, 2007. We will be moving to a new apartment that day.
Thank you.
A few days later, on March 5, 2007, Mr. Nikoforuk sent the following reply:
Hi AI. Your request for leave with pay under article 12.2 to move
to your new apartment on March 30, 2007 is denied. Since there
is advance notice of the moving date, there is time for alternative
leave arrangements to be made and it is not considered to be
extenuating circumstances.
The college is prepared to grant you leave on March 30, 2007
under article 12.1 of the collective agreement. You may take this
leave as vacation or as leave without pay. If you would like to
take this leave as vacation, please complete the vacation request
form.
If you have any questions about this matter, please contact me as
soon as you can.
*
It is this denial which gave rise to the "moving day grievance" that Mr.
Bennett filed on March 9, 2007. Mr. Bennett testified that the "moving day grievance"
was one of eight grievances that he tiled that week, all of which involved a request for a
leave, with pay, to deal with some personal matter. The "Bankruptcy Court grievance" (to
which we will return in a moment) is another one of those grievances,
*
8
The Grievor testified that on January 31, 2007 he gave his landlord 60
days notice that he and his wife would be moving out of their current apartment. The
Grievor testified that (as he understood it), this was a legal requirement. The Grievor did
not know when he would be moving; but because he was on a month-to-month tenancy,
he thought that he would be able to stay on in his old building, beyond the 60 days, if he
had not found an alternative apartment by the end of March,
The Grievor testified that he found a new apartment "a couple of days"
before giving notice to his supervisor (i.e. a couple of days before February 27).
Accordingly, the Grievor had more than a month to make moving arrangements; and, as
it happens, he also had some flexibility with respect to the ('moving in", because the new
apartment was vacant as of MiliCh 26.
After the Grievor found the new apartment, he told his current landlord (at
the "old building"), that he would be moving out at the end of March. As a result, the
landlord at the old building arranged for a new tenant to move into the Grievor's
apartment on Sunday, April 1. The Grievor said that he knew that a tlew tenant would be
moving in, because s/he had come to see the Grievor's old apartment before deciding to
rent the place, and s/he had bought some of the Grievor's belongings.
According to the Grievor, the timing of his move was limited by the
availability of the elevators at each building. The elevator at his old building was not
available at all on Saturday, March 31, and it was only available on Friday, March 30,
9
from 8 a.m. to 12 noon. At the new building, the elevator was only available from 1 p.m.
to 5 p.m. on March 30, and was not available at all on Saturday, March 31.
We do not know the date that the Grievor made contact with the
superintendents at these two buildings to arrange for and coordinate the move; thus we do
not know precisely when the Grievor was informed that the elevators were booked for
Friday March 29 or Saturday. March 30. There is no evidence about the availability of
the elevators, at either location, on Suncilly, April I - although, as noted, the new tenant
was scheduled to move in to Mr. Bennett's apartment that day (we do not know when).
Similarly, there is no evidence about the availability of elevators, at either location, on
Monday March 26, Tuesday March 27, Wednesday March 28, or Thursday. March 29
(recall that the new apartment was vacant from March 26).
The Grievor testified that he could have stored his belongings for a few
days between leaving his old apartment and moving into his new apartment. The moving
company that he hired would have provided that service, as well. However, in the result,
the Grievol' moved out of his old building and into his new building on Friday, March 30,
as proposed; so there was no need for storage.
The Grievor's role on moving day was to supervise the work of others.
Neither the Grievor nor his wife did any of the actual moving. That was done by the hired
movers, and by a group of friends who pitched in to help.
10
The Grievor testified that the movers he used were not available to work
on Saturday. We do not know when he contacted those movers, nor whether alternative
movers, or moving dates, were considered.
The Grievor's wife is disabled and is not currently employed.
Accordingly, she was entirely free that week to assist with the move as best she could.
She could not do any lifting. Nor did the Grievor do any lifting on moving day.
On March 30, the Grievor stayed at the old apartment to supervise the
moving out. His wife went to the new apartment with some girlfriends to supervise the
cleaning of the new space, before their belongings were moved in. The Grievor testified
that he had to stay at the old location in order to ensure that nothing was stolen
(presumably, he did not trust the movers he had hired, and did not trust his friends to
perform that task). He said that his wife could not be present to keep an eye on things,
because she had to take care of the family cats, and because she had to fetch a key for the
new premises, and because she had to supervise the cleaning of the new apmiment,
before the move-in. The Grievor said that it would be hard to clean the new place, once
their belongings had been moved in.
The Grievor testified that he had no communication with Mr. Nikoforov
about his need for time off, prior making that request on February 27, nor was there any
communication with Mr. Nikoforov in the period between February 27 and March 5,
when he received the emailedrejectionsetoutabove.Mr. Bennett further testified that
II
there was no follow-up with Mr. Nikoforov, after the rejection was received on March 5,
nor any effort, on his part, to discuss the rejection with Mr. Nikoforov, or to supplement
what was said in his request of February 27, or to consider alternatives that might avoid
or minimize the wage loss.
In other words, as Mr. Bennett recalls it, there was no dialogue with his
supervisor about the move, or about why it had to be done on a work day or during
working hours~ nor (according to the Grievor) could he recall any discussion about his
moving day constraints, or how they arose, or how those problems might be managed in a
way other than the one mentioned in the his February 2th e-mail. Nor is there any
evidence that Mr. Bennett took any steps to consider alternative moving arrangements,
after he knew that the College was not inclined to indemnify him for any lost wages, and
before his intended moving date, which was then about three weeks later. Instead, he
filed a grievance on March 91h, then arranged to use a "vacation day" to cover the time off
on March 30. (The Grievor has 30 "vacation days" per year).
Mr. Nikoforov has a different recollection of events.
Mr. Nikoforov testified that after recelvmg the brief e-mail from the
Grievor on February 27, he approached the Grievor and asked for more information.
According to Mr. Nikoforov, the Grievor said that he could not find movers for any other
date than March 30, and that the elevators at both buildings were booked for the
weekend. As Mr. Nikoforov recalls it, there were no other details provided, nor was there
12
any response to Mr. Nikoforov's emailed message of March 5. There was no discussion
of alternatives, and no other details about the Grievor's moving problems.
Mr. Nikoforov testified that he did not believe that the Grievor could not
find movers for any other day, or that his elevator problems were insuperable. Mr.
Nikoforov testified that he had moved apartments himself, on a number of occasions, and
that he had never had any difficulty doing so without taking any time off work. Mr.
Nikoforov thought that the Grievor should be able to do the same thing - especially since
he had at least a month to consider alternative arrangements.
*
Mr. Nikoforov testified that he consulted some of his colleagues and what
precedents he could find, and he ultimately concluded that the Grievor's request was not
justified under Article 12.2. That is why he sent the message of March 5; and that is the
way things stood at the time that the Grievor filed his grievance on March 9th.
*
It is not disputed that on past occasions, the Griever has been given time
off, with pay, to cover a moving day. However, the College does not have a consistent
practice in this regard. As Larry Goldin, the Local Union President, expressed it in an
email dated March 13,2007: "the College is all over the map on this one".
Mr. Goldin testified that, in recent years, the College has been less
inclined to grant paid leave than it has been in the past - perhaps (he speculated) for
economic or cost reasons. He also said that such requests have become much more
13
prevalent. Accordingly, it is interesting to note that about a year before the Grievor's
request, one of his co-workers was refused a request for leave, with pay, in broadly
similar circumstances. The email documenting that refusal was copied to Mr. Goldin and
to the Grievor in the Grievor' capacity as a Union official. It reads as follows:
Hello Majid. Your request for leave with pay under article 12.2 to
move house on July 7, 2006 is denied. Since there is advance
notice of the moving date, there is time for alternative leave
arrangements to be made and it is not considered to be
extenuating circumstances. As noted in my earlier e-mail, your
request for leave to move house on Friday, July 2006 is granted as
per article 12.1 of the collective agreement. You may take this
leave us vacation or as leave without pay. If you would like to
take this leave his vacation, please complete the vacation request
form. If you should have any further concerns or questions please
discuss them with Gladys [a supervisor].
*
There was no grievance over this refusal to give Mr. Majid time off on his
moving day; and it is further interesting to note that the rationale advanced by the College
in that case is broadly similar to the rationale that was later advanced in respect of the
Grievor's "moving day" request, the following year.
*
Save as set out in this decision or in other arbitration awards involving
Centennial College, there is no evidence of "past practice" with respect to when "leave
with pay" has been granted or has been refused. We do not know the kinds of situations
where these determinations have been made - the spectrum of situations, so to speak. We
only know about a few instances where there have been disputes.
*
14
There was no evidence about whether it was particularly difficult for the
College to "back fill" or cover for the Grievor's absence on Friday, March 30, 2007 (his
"moving day"- taken as "vacation"). Nor do we know whether there was any particular
cost or inconvenience to the College, arising from this particular absence.
The Banlo'uptcy Court grievance
The request from time off, with pay, to attend at Bankruptcy Court, was
also made in February 2007 (i.e. around the same time as the other requests for time off,
with pay). The Court day request pertains to ,Wednesday, March 28. 2007. The
background is as follows.
*
For a number of years the Grievor's wife has suffered from vanous
disabling illnesses, that have affected her ability to work on a regular basis. That
situation, in turn, has made it much more difficult for the Grievol' to manage the family's
income and expenditures. In the result, when mortgage interest spiked about 15 years ago
and Ms. Bennett was out of work, the couple lost their home and the Grievor had to
declare personal bankruptcy.
There is no evidence that this bankruptcy had any impact on the Grievor's
work, or required him to take any time off work. As far as the Grievor knows, the College
was unaware of his predicament.
15
Following this "first bankruptcy", Ms. Bennett's health improved and she
was able to hold down various jobs. The family finances improved accordingly. However
in 2006, her cancer returned, she could no longer work, and the Grievor and his wife
found themselves in the same straightened economic circumstances that they had
encountered before. And, as before, the Grievor applied for personal bankruptcy.
The Grievor initiated this second bankruptcy petition in May 2006, and, as
before, that process did not entail any lost work time, because the paperwork could be
done outside of his regular working hours (8.00 am to 3.30 pm). However, that was not
the case, a year later, when the Grievor petitioncd for a lldischargeii from bankruptcy "
that is, when he sought an Order from the Court that would finally relieve him of any
obligations to his former creditors. Because this "second" financial absolution was not so
easily obtained as the first one had been.
*
By letter dated February 14, 2007, the Grievor was advised by the Trustee
in Bankruptcy, that the Trustee would be opposing his discharge from bankruptcy, and
that the Grievor would be required to attend at Bankruptcy Court, to speak to that issue.
The letter from th~ Trustee reads as follows (emphasis in the original):
Dear Mr. and Ms. Bellllctt:
As you are aware the trustee (sic) has opposed your discharge
from bankruptcy. The Trustee advises that the discharge hearing
has been scheduled for Wednesday, March 28, 2007 at 9:30 a.m.
at the Toronto Bankruptcy Court at 330 University Ave, 7th floor,
Toronto, Ontario. Your attendance is required.
16
Enclosed herewith is a form for completing a current Statement of
Income and Expense and an information sheet as supplied by the
Court. Please bring the completed Statement of Income and
Expense for the month of February 2007 to the discharge hearing.
Should you have any further questions, please do not hesitate to
contact our office.
As will be seen: the Grievor is directed to appear at the Court hearing and
to bring various documents with him.
Following receipt of this letter, the Grievor contacted the Trustee in
Bankruptcy to see whether the Court date could be changed, or whether the issue could
be addressed in the evening. The Grievor was advised that the Court date could not be
moved, that Court was in session only during the day, and that his attendance was
imperative to speak to the question of whether or not he should be discharged from
bankruptcy. The Grievor was told that he would he required to explain his situation to a
Judge, who would then decide how many months it would be before the discharge was
granted.
A few days after these events (i.e. after the February 14th letter and the
conversation with the Trustee), the Grievor explained the situation to his supervisor,
Dimitry Nikoforov, (who was aware of the Grievor's wife's serious illness). The Grievor
testified that the conversation occurred about a week after receiving the letter, which
would have been about the middle of the work week of February 19-23.
]7
There are differing recollections about what was conveyed to Mr.
Nikoforov on that occasion, but having regard to the factors identified in Part III of this
A ward, we accept the Grievor's recitation of events. Not only did the Grievor have a clear
and specific recollection of what had happened and what he had said (with lots of
corroborating detail), but he maintained that position through a vigorous cross-
examination, while Mr. Nikoforov testified, quite candidly, that he did not have a firm
memory of the conversation or the context. In our view, the Grievor's answers had the
ring of truth; moreover, his testimony also appears to us to be consistent with the
documentary material that followed.
According to the Orievor, he told Mr. Nikofol'OV about the letter from the
Trustee in Bankruptcy (although he did not give him a copy); he explained his
bankruptcy problem; and he told Mr Nikoforov that because it was a bankruptcy
proceeding, he had to attend that day, beginning at 9.30 AM. The Orievor testified that
since most people don't know how bankruptcy works, he tried to explain to Mr.
Nikoforov what the process was all about.
Mr. Grievor told Mr. Nikoforov that this was the second bankruptcy, so
that he had to go to Court, and that the proceeding could not be scheduled for any other
time. According to the Grievor, this was a separate conversation, that had nothing to do
with the later request for time off for "moving day" (a request that was made in writing
the following week).
18
Mr. Nikoforov asked the Grievor whether the proceeding would take all
day and whether the Grievor would be able to come back to work afterwards. The
Grievor replied that he did not know; and that he might be away all day, because he had
been told that there would be other cases considered that day, and that other people were
involved. The Grievor did not know when he would be called upon or how long the
matter would take.
Mr. Nikoforuk wanted the request in writing. The Grievor told Mr.
Nikoforov that this was a personal matter that he did not wish to share with fellow
employees. Mr. Nikoforov agrees that his conversation with the Grievor occurred before
receiving the cmailed request (which would also make it before the request for moving
day, which was on February 27).
The Grievor's written request for time off (dated February 26 and copied
to a number of other individuals) was fairly brief and general. It reads as follows:
Hi Dimitry. I am requesting time-all for all day Wednesday,
March 28, 2007 under Article 12.2 to attend to a personal matter
as we previously discussed. Thank you
The Grievor testified that in keeping with his earlier request for privacy,
there was no mention of the Com1 appearance, but that he did not think it necessary to do
so, because he had already explained the background to Mr. Nikoforuk. The reference to
"all day" appears be responsive to Mr. Nikoforov's earlier question about whether the
Grievor would need the whole day off.
19
A few days later, on March 2, 2007, Mr. Nikoforov emailed the Grievor,
asking to be reminded of why the Grievor had wanted the time off on March 28. Mr.
Nikoforov wrote:
" Could you remind me the reason you are asking for time-off all
day Wednesday, March 28, 2007 under Article 12.2? I can't
remember for sure. Please, send me email".
The Grievor replied as follows:
Hi Dimitry I have to go to Court that day. I didn't cc: everyone
else because it's none of their business, and you were the only one
who has to know since you are my manager. Thank you and have
a good weekend.
The Grievor testified that he thought that it would tweak Mr. Nikoforov's
memory once he reminded Mr. Nikoforov that he had to go to Court, because the Grievor
had already explained the background. Ml'. Nikoforov testified that he was "surprised"
that the Grievor had not cc'd others on leave request - which comment is itself surprising,
since the Grievor had already explained that his business was personal, and that he did
not want to share it with others. Mr. Nikoforov made no further enquiry after that.
On March 5,2007, Mr. Nikoforov rejected the Grievor's request for time
off to attend Bankruptcy Court. The rejection was sent by email and reads as follows:
This is in response to your request for leave under article 12.2 to
attend Court on Wednesday, March 28,2007. Leave under article
12.2 of the collective agreement is denied since the Court date is
scheduled well in advance. Understanding that your attendance at
Court is required, the leave is granted on a Wednesday, March 28,
according to aliicle 12.1 of the collective agreement and may be
taken as vacation, as lieu time to be made up, or as leave without
pay. Please let me know how you would like to take this leave.
20
This rejection was dated and received on the same date as the rejection of
the Grievor's "moving day" request (discussed above); and as was the case with the
IImoving day" refusal, the Grievor did not "follow up" with Mr. Nikoforov or provide any
further information. He filed a grievance challenging the decision on March 9, 2007.
The Grievor testified that Mr. Nikoforov had already been fully informed
of all of the circumstances underlying the request for a day off to attend Court, so he (the
Grievor) saw no reason to follow up, or to go through it all again; moreover, by that time,
the Grievor had formed the opinion that the College was automatically refusing all
requests for Article 12.2 leave, so that any further explanation from him would serve no
purpose. The Grievor testified that the language of these refusals was not the kind of
language that Mr. NikofOl'oV customarily used (English is not Mr Nikoforov's first
language); and he doubts that Mr. Nikoforov made the decision or composed the
rejection. It seemed to the Grievor that this was a pro forma refusal, telling employees
that they could not have paid leave under Article 12.2, but had to draw down their other
contractual entitlements instead.
*
In the course of his testimony, Mr. Nikoforov struggled to remember his
conversation with the Grievor about this particular request, and to distinguish that
conversation from the other interchanges about leave issues, that occurred around the
same time. Mr. Nikoforov thought that the discussion about the COUl1 date had occurred
in conjunction with a discussion about the moving day request (that was not made until
February 27); and he candidly prefaced his comments about his discussions with the
21
Grievor with the phrase "so far as I remember.. ". Moreover, to be fair to Mr. Nikoforov:
he was being peppered with leave with pay requests during this period, and as we have
already noted, there is no form that requires an employee to set out in writing why leave
is required, or what efforts s/he has made to avoid taking time off, or any "extenuating
circumstances" that might trigger Article 12.2, instead of Article 12.1. Nor did Mr.
Nikoforov make any notes of any of these exchanges.
Mr. Nikoforov recalled that there was a discussion with the Grievor prior
to the Grievor's written request for paid leave; and he also recalls the Grievor telling him
that he had to go to Court for personal reasons. But Mr. Nikoforov said that he could not
recall being told that it had anything to do with a bankruptcy. Nor could he recall any
mention or discussion of the letter from the Trustee in Bankruptcy. He said that he was
sure that the "bankruptcy" had not been identified as the reason for the Court appearance;
but he did recall the Grievor saying that he did not want others to be aware of his reasons
for being off work.
Mr. Nikoforuk testified that he could not recall the context in which the
conversation occurred, and he readily admitted in the course of his testimony that he did
not have a firm memory of what happened. Moreover, at that point, (early 2007), Mr.
Nikoforov was still a relatively new employee, and thus he may not have been familiar
with the history or the protocols of the College surrounding this kind of issue. Mr.
Nikoforov could not recall any other conversation about the Court date, nor whether he
spoke to the Grievor about that subject after the leave was denied on March 5.
22
*
It might be noted that insofar as the mention of "bankruptci' is concerned,
Mr. Nikoforuk was testifying in November 2008 that he had a firm recollection about
what the Grievor didn't say, while only a few days after the conversation in question, he
was writing to the Grievor because he ostensibly could not recall what their conversation
was about. On balance we are satisfied that the Grievor did explain that he needed to be
in Court that day to deal with his second bankruptcy.
*
In the course of cross-examination Mr. Nikoforov testified that he made
the decision on his own to reject the Grievor's request, although he said he had talked to
another manager about it. He testified that he had inadequate information to grant a
request under Article 12.2, and that is why he offered other options. When it was pointed
out to him in cross-examination that that is not the reason given to the Grievor at the time
(see the March 5 email recorded above), Mr. Nikoforov said that he did not see any
"extenuating circumstances" (which is not mentioned in the March 5 email either). Then,
when pressed, he said that because the Court date was known in advance (which is what
was said in the e-mail sent to the Grievor) there were no extenuating circumstances or
emergency that the Grievor needed to deal with, so time off with pay was not warranted.
*
No other rationale was advanced for refusing the leave, and, on balance,
we think that it is preferable to work with the reason advanced by the Supervisor, rather
than one that was not - especially when it is not entirely clear who made the effective
decision to deny the leave, and we are working within a framework (insisted upon by the
23
Employer in the case of employees) in which determinations are to be made on the basis
of what was communicated at the time, and not what was added later on, at the hearing.
*
The evidence about how the Grievor's job is covered, was much the same
as it was for the "moving day" grievance. There is no evidence about whether it was
difficult for the College to "back fill" or "cover" for the Grievor's absence on
Wednesday March 28 (his second day off that week), nor do we know whether there was
any particular cost or inconvenience to the College, arising from this particular absence.
Unlike in the "moving day grievance", there was no evidence of any past practice about
granting or refusing '~leaves" to attend at Court.
IV - The I)osition of the parties restated
Not surprisingly, since the parties, one of the advocates, the issues, and the
general background are the same for these two grievances, there was also some similarity
in the parties' arguments in the two cases.
The moving day grievance
The Union submits that the Grievor's circumstances fall within the scope
of Article 12.2, that the Grievor gave reasonable notice of his need to take a day off to
move, and that Mr. Nikoforov improperly "fettered his discretion" by applying an
erroneous and unduly onerous reading of the term "extenuating circumstances" to the
24
Grievor's circumstances. In Union Counsel's submission, there was no reason to doubt
the veracity or the validity of the Grievor's explanation about his "elevator dilemma", nor
the Grievor's assertion that he was stuck with his existing arrangements (assuming that
Mr. Nikoforov's recollection is right, and that there was such a conversation ~ recall that
the Grievor had no recollection of the discussion at all). Nor, according to the Union, was
there any obligation on the Grievor to tell Mr. Nikoforov any more than he did; or to
follow up with Mr. Nikoforuk in any way. As the Union sees it: ifMr. Nikoforov thought
that he needed more information, he should have asked for it.
The Union submits that the Grievor's presence was required on moving
day, and that he should have been able to ensure his attendance for that purpose, without
taking a vacation day. The Union submits that the vacation day with pay should therefore
be returned to Mr. Bennett, because he should never have been required to use it in the
first place.
*
The Employer replies that Article 12.2 creates a significant threshold
which employees must meet before they are entitled not only to time off, but also to
wage indemnification for time not worked; moreover, Counsel points out that the Grievor
was offered "unpaid" time off, and, in the end, he did get paid lime off ~- albeit by taking
a vacation day. The Grievor did get the time off, and he did not lose any money for that
day. So, Counsel submits, this case is only "about money" - and whether employees can
reasonably expect to be subsidized for the time off that they take to deal with personal
business: a moving day.
25
In the Employer's submission, the circumstances adverted to by the
Grievor were not "extenuating" as that term is used in Article 12.2, and further, that there
was insufficient dialogue with Mr. Nikoforov, or exploration of alternatives. Nor was the
supervisor's decision "unreasonable". The Employer submits that paid time off for
"moving day" is not an "entitlement", and does not become so merely because the
Grievor had problems arranging the elevators on the day he chose to move, In Counsel's
submission, the moving day grievance should be dismissed.
The Bankruptcy Court grievance
Insofar as the facts of the second grievance are concerned, the Union
submitted that we should prefer the Grievol"s explanation of what was conveyed to Mr.
Nikforov, who admitted that his recollection was fragmented. The Union submits that the
Grievor had a real stake in the conversation, so that he was likely to remember what was
said, while Mr. Nikoforov could not remember the context and took no notes,
With respect to the merits; the Union conceded that Article 12.2 was not
an absolute entitlement. However, the Union submitted that each case has to be
considered on its own merits (a "one-off' as the Union representative put it); and within
that framework, the fact that the need for a period of time off was ascertainable in
advance, cannot be the sole test for whether the requirements of Aliicle 12.2 have been
met. Foreknowledge can, at most, be a/actor for consideration; and what really matters is
whether the need for time off that day, is fixed and immovable and beyond the
26
employee's control - as the Grievor found was the case, when he tried to change the
Court date. There can be no presumption that lots of lead time means lots of scheduling
flexibility. It depends upon the facts.
In the Unionts submission, the Grievor found himself in a exceptional life
situation, that was not his "fault" and was beyond his control; and the Employer ought to
have given more consideration to the needs of an exceptionally long service employee
(39 years), who found himself entangled in a Court process that he had expected to
navigate without involving the Employer at all. In the Union's submission, the Grievor
was trapped in "extenuating personal circumstances", requiring this limited (one day)
absence from work; and that being so, he was entitled to a fair consideration of his
request for time off with pay - a consideration that, the Union says, should have been
made in the Grievor's favour. The Union points out that the Grievor did not take time off
in respect of his earlier bankruptcy, and that he has never (on the evidence), asked for
anything like this before.
*
The College agrees that employee requests under Article 12 must be
considered on a case-by-case basis; but Counsel submits that "advance notice Ii is a
plausible starting point for the Employer, and creates a rebuttable presumption that the
employee can make other arrangements. Moreover the onus is on the employee to
establish why he cannot do so - which, Counsel submitted, has not happened here. And
once again: it was submitted that there was insufficient dialogue and exchange of
information between the Grievor and his supervisor.
27
Counsel reiterates that Article 12.2 is, by its terms, a clause reserved for
exceptional circumstances ("fire, flood and medical emergencies", as he put it); and is not
an entitlement, triggered whenever an employee needs time off for some legitimate
personal reason. That is not a reasonable expectation. And there must be something truly
exceptional to come within Article 12.2.
Counsel further points out that days off in connection with Comt
proceedings ("Court days", as he described them) are already mentioned in Article 12.6,
("Jury/Witness Duty") which, by inference, he submits, suggests that attending at Court,
for other reasons, is excluded from A11icle 12.2.
In the College's submission, the Court day request should be dismissed, as
well.
v - Discussion and Disposition
In the McEachran case, the arbitration board undertook a detailed analysis
of the language of Article 12, the contractual context in which that Article appears, and a
number of the cases where arbitrators have applied that provision in particular
circumstances. We do not propose to repeat the whole of that analysis here, nor to burden
these reasons with extensive quotes from McEachran. Whatever utility that approach
might have in other situations, it makes little sense where, as here: the parties are the
same; the issues are the same; two of the tlu'ee panel members are the same; the parties'
28
representatives did not quarrel with, or seek to go beyond, what was said in McEachran~
and no one undertook (or invited us to undertake), a review of any other leave with pay
cases that might illuminate how this kind of clause should be interpreted or applied.
Accordingly, we think that it is sufficient, for present purposes, to make some brief
observations, drawn mostly from McEachran and the cases referred to in McEachran,
then to turn (also relatively briefly), to whether or not there has been a breach of the
Collective Agreement in either of the two scenarios described above.
*
The Collective Agreement contains quite a number of provisions dealing
with time off - sometimes with pay, sometimes not. Most of those provisions are framed
as "entitlements ", with defined eligibility criteria or clear limitations on when such leave
will be granted (union leave, parental leave, citizenship leave, jury/witness duty,
professional development days, etc.). Likewise, there are a number of provisions that
provide for indemnification 111 defined circumstances (for example: tuition
reimbursement, or a salary continuation when employees are absent from work to attend
certain kinds of courses).
In each of these instances, the eligibility requirements and limitations are
fairly clear, or can be gleaned fairly easily from the clause itself. These entitlements have
discernable boundaries.
By contrast, A11icle 12.1 and Article 12.2 are more open-ended and
undefined. They contemplate a discretion to grant time off without pay lifoI' legitimate
29
personal reasons" under Article 12.1, together with a more constrained opportunity - but
still as a matter of discretion - to get "time off with pay", under Article 12.2, But there is
no effort to catalogue the myriad reasons why employees might want time off, (or time
off "with pay") - which, as Arbitrator Brent suggested in the St. Clair College case, may
be as numerous as the "grains of sand on the beach": family celebrations (e.g. weddings,
funerals, graduations, family visits); attending to the employee's own personal needs (e.g.
medical or dental or other personal appointments); "legal matters" or meetings pertaining
to the employee or others (real estate, family law, criminal matters, regulatory issues);
self development endeavours (e,g. citizenship or other applications, involvement with
government agencies, writing driving or other tests); attending to the personal needs of
family members (their health, education or welfare); an "extension" or "add on" to other
contractually prescribed leaves, which may not be adequate to meet the particular
circumstances in which the employee finds himself; the need to stay at home to attend to
repairs, utility hook-ups or other household issues; and so on. Nor is there any negotiated
limit to the amount of time off that might be involved (with or without pay): hours, days,
weeks, or months. And there are any number of considerations that might bear upon
whether the leave can, or should, be granted, including (but not limited to): the needs of
the workplace (e.g. staffing and operational requirements, including balancing such
requests by the employee and others); the importance to the employee and the hardship
caused by any denial; in family matters, the nature of the relationship and the urgency of
the call for the employee's assistance during his/her regular working hours; whether it is
possible or appropriate for other arrangements to be made by the employee, including a
change of hours (subject to the Agreement) so that the employee can attend to what needs
30
to be done without losing work or pay (which was part of the discussion in McEachran);
whether the granting or denying the leave might he seen as a form of "discrimination" or
"favouritism" (i.e. similar cases should he treated alike); and so on.
However, it is clear from the language of Article 12, that neither "personal
leave" nor "personal leave with !Jav", is an unqualified right. Both kinds of leave are a
matter of employer discretion - which, in this respect, acts as a "flood gate" for what
might otherwise come to be considered a limitless reservoir of time off, so long as the
employee has a good personal reason to be away from work. Moreover, when the
wording of Article 12.1 is compared with the wording of Article 12.2, it becomes equally
plain that in order to qualify for paid time off, there must be something more than just a
Illegitimate personal reason" for being absent from work. In this respect, the structure of
the clause supports Arbitrator Bendel's observations in his Centennial cases that the
employees should not expect their Employers to pay their wages for time not worked,
when they choose to take time off to attend to routine personal business (although it
might be more accurate to say that this was unlikely to have been the reasonable
expectation of the parties, when they negotiated Article 12.2). And the same idea is
captured in paragraph 1 of the parties' Memorandum of Understanding.
*
So, in practice, it may he easier for an employee to get "time off', than
time off "with payH. Employees arc expected to be at work on a regular basis; they need
a good reason from taking time off work; and they need an even more compelling one
31
before the Employer may be required to consider paying them for the time not worked ~
as it may be required to do for other, more specifically negotiated "leaves with pay".
*
Clearly it is necessary to have a legitimate need for time off work, before
any leave need be granted under Article 12 [for example: to attend the medical
appointments that were considered in Centennial (Glenville,) and in Centennial
(fvfcEachran), and in Arbitrator Bendel's more recent decision in Centennial (Bennett)
2009 CanLII 7556]. But that reason may not be sufficient to warrant wage
indemnification. Because leave under Article 12.2 is not like a prewestablished bank of
"paid floating holidays" (as one sees in many collective agreements), that can be accessed
by the employee, at his/her initiative, for any reason at all, and more or less, as of right.
On the contrary, Article 12.1 and 12.2 are both discretionary; and the application of both
provisions depends upon the circumstances in which the request is made - including a
consideration of both employer and employee interests.
*
Article 12.1 and Article 12.2 are stand-alone clauses that operate in
addition to the other more specifically framed leave provisions, found elsewhere in the
Collective Agreement (like Bereavement, Parental or Pregnancy Leave, Holidays or
Vacations). They address "something" that these other provisions do not. Indeed, it has
been held that it would be wrong for the Employer to insist upon an employee exhausting
other, analytically unrelated entitlements (like vacation time) before the Employer need
even consider an application under Article 12 (Fanshawe (Skinnel~).
32
On the other hand, the presence of these other negotiated entitlemcnts (and
the subject matter that thcy deal with) may be relevant when interpreting the ambit of
Article 12 or the application of the Employer's discretion; and, as a practical matter,
employees have not been very successful under Article 12.2, when there is a specific but
self-limiting clause, elsewhere in the agreement, that seems to apply to the employee's
situation (for example: where an employee sought paid leave under Article 12.2 to attend
a funeral, in circumstances that would not meet the qualifying conditions in the
Bereavement Leave Clause w see the decisions of Arbitrator O'Neil and Arbitrator
Simmons, in Fanshawe (Waft) and Centennial (Purchase) respectively).
*
This is not to say that Article 12.1 or 12.2 can never be available in those
circumstances; if the employee's personal situation is otherwise of such nature as to fall
within the ambit of one of those provisions. Because, to repeat, Article 12.1 and Article
12.2 have to be considered in their own right. However the cases do not provide much
comfort for employees who find themselves in a situation similar to one that is already
covered somewhere else in the agreement, and then seek a wage subsidy under Article
12.2 (In each of the bereavement leave cases mentioned above, time off, lvi/hout pay, was
found to be sufficient to meet the Employer's contractual obligations and, in each case,
there was no entitlement to paid time off under Article 12.2).
*
Be that as it may, because Article 12 involves an exercise of discretion,
arbitrators have been concerned that the Employer exercise that discretion properly,
having regard to the particular circumstances of the case. Adjudicators have frowned
33
upon situations where the Employer has applied some inflexible policy that forecloses a
fair consideration of the employee's request. References to policy or past practice may
well be a legitimate starting point, because they may have interpretive value, or they may
inform what is Iireasonableli; moreover, a reference to policy or practice may also
facilitate the consistent treatment of employees, and avoid allegations of "arbitrariness"
or "discrimination". However even if there is an established policy or practice, the
decision maker must keep an open mind, and admit the possibility of exceptions - or
Iiextenuating circumstancesli - that might call for a different result. And of course, both
the employer and the employee have to consider the application of any qualifying
language found in the agreement - like: whether the situation is "special", or whether
there are "extenuating personal circumstances", or whether the employee gave
"reasonable notice" of the need for time off, or whether the time off is being scheduled
"where possible" (which suggests the exploration of alternatives), so as to minimize
operational disruption.
*
The cases and the parties' Memorandum of Understanding both put an
onus on the employee to identify his personal situation with sufficient particularity that
the manager can fairly determine whether it comes within the ambit of the clause, and
whether the situation might be one where the Employer should exercise its discretion in
the employee's favour. If the employee fails to do so, then he may not be able to complain
about it later. The Employer is entitled to know the facts upon which it is being asked to
assess the employee's request; but, by the same token, if the request meets the
requirements of Article 12.2, it cannot be unreasonably denied. (A number of the cases
34
note that the facts before the arbitrator at the hearing were not the same as those put to the
Employer at the time of the request; and that it is only the latter that are relevant when
determining whether the Employer has breached its obligations under Article 12).
*
These "process considerations" (as they were called in McEachran) are
drawn from administrative law sources, and have been held (mutatis mutandis - see the
discussion in McEachran) to inform the exercise of managerial discretion under the
Collective Agreement. A supervisor is expected to honestly consider the request, to
eschew irrelevant considerations, and, over all, to act in a manner that is not "arbitrary,
discriminatory or in bad faith". On the other hand, if these "process requirements" are
met, arbitrators have been reluctant to second-guess the substantive decisions of
management, simply because the arbitrator might have come to a different conclusion.
Arbitrators have recognized that there is a "range of reasonableness" in these situations -
which is what prompted Arbitrator O'Neil, in Fanshawe (Watt) to say:
Although the Grievor's felt necessity was obviously genuine, the
necessity of being there [at a cousin's funeral] was covered by the
time off, and the circumstances are not so compelling that it is
clear that paid leave was the o..!:1lY..-reasonable employer
response.....The case boils down to one where others might have
granted the pay and been considered to have made a reasonable,
more generous decision, but the evidence is not persuasive that
the opposite decision was unreasonable for being less generous.
Thus, while Article 12.2 has to have some application, in some
circumstances not otherwise dealt with elsewhere in the Agreement, it does not seem to
have been regarded as an open-ended entitlement; and the cases are also careful to
emphasize its application in particular circumstances. Arbitrators have tried to be faithful
35
to the 'discretionary' and individualized nature of this kind of determination, and have
eschewed the role of "interest arbitrator" - creating, through adjudication, new categories
of paid time off. And, as Fanshawe (Watt) illustrates: they have not probed too deeply
where the employee got the time off that s/he needed to deal with some personal problem.
The cases do not usually take a narrow sentence parsing approach to the
interpretation of the clause; nor do they always distinguish between the interpretation pali
of the equation - what is meant by words like "special" or "extenuating circumstances" -
and whether it was "reasonable" for the Employer to refuse the leave in those
circumstances. The cases seem to recognize (in result, if not in analysis), that
"reasonableness" may be linked to the degree of "specialness" or "extenuation'l, The
more sympathetic the plight of the employee, the more extreme or unanticipated or
uncontrollable the circumstances in which s/he finds himself, the more unusual the need
for time off, and the more the tangible or unavoidable the economic burden on the
employee (Article 12.2 is subsidy clause, after all), the more compelling the employee's
case will be for time off, or time off, with pay. Conversely, if the request involves
something that is normal or routine (like routine medical appointments), or the loss could
be avoided by more prudent or flexible scheduling, the cases have not supported the
employee's claim for paid time off.
*
McEachran suggests that both parties are required to be "reasonable" in
their approach to these issues, and that it is relevant to ask (as Arbitrator Joliffe did in Re
Cameron and Treaswy Board): "was it possible or appropriate for other arrangements
36
to be made by the applicant for !,pecialleave?". That is the thrust of the first sentence of
Article 12.2 as well: if the employee has not tried to arrange his/her affairs so that they
can be dealt with outside working hours, or with a lesser call on work time, then a claim
for time off, or subsidized time off, may not be granted. Moreover, the words "where
possible" suggest quite a high tlueshold. McEachran also emphasizes the desirability of
dialogue, so that the employee and his/her supervisor can consider the situation, together,
and, if possible, explore alternatives that might meet the employee's needs without loss
of pay.
*
In summary then, what emerges from the wording of Article 12 and from
the cases, is that wage indemnification is not routinely available every time there is a
legitimate (i.e. genuine and justifiable) personal need for time off. Rather, in order for a
claim to succeed under Article 12.2, there must be something "special" about it, or
something that amounts to "extenuating personal circumstances" - which, in this context,
means either something inherent in the situation itself, or something "extra" in the
employee's particular circumstances that reverse the normal expectation that employees
will not normally be paid for time not worked. Accordingly, aside from "procedural
failings", disputed claims under Article 12.2 have been sustained only in unexpected
situations, beyond the employee's immediate control, and often with a strong
"compassionate flavour" - for example: the initial time necessary to attend to a spouse
who was experiencing medical difficulties in hospital, but not all of the time off so taken
(Loyalist College - Arbitrator Kruger); some instances where it was necessary to care for
a sick child, but not illl such instances, and only where the employee herself had made
37
significant efforts to avoid taking time off for childcare purposes (Georgian College -
Arbitrator Soltman); and so on. Because it is interesting to note that even in those
disputed cases where it was held that some time off "with paf' was justified under
Article 12.2, (Loyalist College, Georgian College) the employee was not fully
reimbursed for all of his/her lost work time (which appears to reflect some arbitral
"balancing') even when the requirements of Article 12.2 have been met).
*
Here are some of the phrases that one finds in McEachran or in the cases
referred to in i\lcEacharn, which emphasize that wage indemnification under Article 12.2
requires something more than just a "legitimate personal reason" to be off work
. ...the use of the word "extenuating" seems to be an attempt to capture
something that is extraordinary or unforeseeable or beyond the
individual's personal control
. ...extenuating personal circumstances has been interpreted to mean
situations involving extraordinary, compelling or unforeseen necessity
directly affecting the employee [from the parties' Memorandum of
Understanding]
. [it is relevant]...whether there are compelling compassionate
considerations
. .[it is relevant]..whether circumstances like [the Grievor's] were usual or
unusual, frequent or infrequent
. ....Words like special or extenuating suggest something out of the
ordinary, and the degree to which Grievor's situation is indeed
extraordinary might assist us in measuring the reasonableness of the
Employer's response
. ....Extraordinary compelling or unforeseen necessity are all terms that
describe the circumstances in successful grievances under article 12.2
38
. ....the circumstances arc not so compelling that it is clear that paid leave
was the only reasonable Employer response
. ...Since the Grievor provided no information to the Employer to suggest
that there is any urgency to her appointment or that the appointment could
not be arranged outside 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 to attend to a medical or dental
appointment. We are aware of no proper basis for that conclusion.
. ...In order to come within the ambit of Article 12.2 there must be some
unusual set of facts, beyond the employee's control, and not commonly
associated with the vagaries and travails of ordinary life.
And once the employee has put himselflhersclf into the "Article 12.2 ball park", the
employer must then exercise its discretion in a reasonable way - which may engage a host
of other considerations drawn from the employee's personal situation and from the
employment setting in which his/her request is being made.
*
With that background, then, we return to the two grievances before us.
The Moving Day Grievance
In our view, there is nothing inherently "extenuating", "special",
sympathetic or emotionally engaging, about having to move one's residence (any more
than there is anything obviously and inherently "extenuating" about having to go to
medical or dental appointments from time to time); and, in the instant case, the Grievor
actually had considerable flexibility about whether, or when, to move out of his old
39
apartment. The Grievor also had considerable flexibility about when to move in to his
new apartment. There was nothing extraordinary, unforeseen, compelling or
compassionate about that situation in itself. And it seems to us that the 'elevator
conundrum' to which the Grievor referred, is substantially a product of his own choices,
how he planned the move, and when he decided to contact the superintendents and the
movers.
We can appreciate the Grievor's desire to avoid additional expenses (like
storing his goods for a day or two, which his mover was prepared to do), and to conduct
the move at a time that was most convenient for him (and not, say, at the end of the day
on March 26, 27, 28 or 29 - or on April 1, juggling his exit with the newcomer's
entrance). But we are not persuaded that this concern, or how it '''played out" in the
instant case, constitute l1extenuating personal circumstancesl1, or something "special'; or,
in fact, anything other than ordinary personal business. Nor is it apparent why alternative
moving arrangements/times were not considered or explored. Because the evidence
suggests that with appropriate foresight and planning, the Grievor could have moved
anytime after March 26, to and including April 1; and the evidence does not establish that
these possibilities were investigated, let alone foreclosed.
Similarly, while we can understand Mr. Bennett's desire to be present to
supervise the move, that was not a necessity either. His wife and his friends were
available to ensure that nothing was stolen (which is the only reason that Mr. Bennett
gave for having to be there), just as those friends were available to do the lifting, and to
40
do the cleaning at the new location. The Grievor's wife may be disabled, but there is no
reason why she could not have overseen the moving day arrangements. Or one of the
friends. And as noted above: neither the Grievor nor his wife, did any of the lifting.
The Grievor's presence was convenient, but it was not necessary. There
was no pressing need for him to be off work for this purpose; and the situation simply
does not have the same resonance as the sudden and unanticipated need to care for a sick
child, or to attend to a spouse, in extremis, in hospital, (which persuaded an arbitrator, in
those cases to provide a partial subsidy for the wages that the employee lost attending to
these family duties). Nor, in our view, does it involve some "extraordinmy, compelling
or unforeseen necessity" (the words that Arbitrator O'Neil used in Fanshawe College,
and the words that the parties themselves recorded in their Memorandum of
Understanding) .
*
Accordingly, what is striking about the lImoving day grievance" is the
extent to which the Grievor's predicament IS a product not of unforeseen or
uncontrollable or inherently problematic or sympathetic or "extenuating" circumstances,
but rather the Grievor's own clecjsions, and the choices that he made about how to
manage his move, Or put differently: the "extenuating circumstances" to which the
Grievor refers, are largely of his own making, flowing from the way in which he planned
the move, and his disinclination to consider alternatives - even when he was advised that
the College was not inclined to subsidize him. The starting point seems to have been an
41
assumed entitlement to time off with pay (as evidenced by the text of his request), rather
than an examination of how the move might be managed without loss of pay.
*
Now, to some extent, that may be explainable by the Grievor's past
expenence. However, in light of the response to his co-worker, Mr. Majid, the year
before, the Grievor ought to have understood that he would not automatically receive
time off, with Pill!., every time he had a "legitimate personal reason" for being off work;
and that if he wanted paid time off, he would have to bring himself squarely within
Article 12.2. Nor was it inappropriate for the College to review the administration of that
provision, if the costs and the number of paidwleave requests were escalating (as Mr.
Goldin suggested they were), so as to ensure that the distinction between Article 12.1
and Article 12.2 was being properly considered by local managers. For surely it is
"relevant" to consider how many such requests are being made, and by whom, and why,
and at what cost, and with what operational consequence for the College; and surely the
Grievor had to understand that the more "leave with pay" requests that he made within a
short time frame, the more problematic it might be for the Employer to grant them all.
*
To be clear: we are not being critical of the Grievor. He was entitled to
make the requests that are the subject matter of this proceeding, as well as the other
requests that were mentioned in the evidence. Likewise, Mr. Nikoforov may have
extrapolated a little too hastily from his own moving day experiences (albeit reflecting
the sentiment captured in the first sentence of Article 12.2). Nevertheless, we are
satisfied (all things considered) that there was nothing wrong or unreasonable about his
42
conclusion in the circumstances as he knew them, or even as they were elaborated at the
hearing. In our view, Mr. Nikoforov was not wrong to deny the Grievor's request for paid
time off, on this moving day.
*
On the basis of the evidence before us we are not persuaded that the
Grievor made all reasonable efforts to ensure that his personal business could be
conducted without taking time off work, nor are we persuaded that the circumstances
demonstrate anything extraordinary or special or "extenuatingil within the meaning of
Article 12.2. In our view, it was neither inappropriate nor unreasonable for the College to
deny "paid leave" in the circumstances that were presented to it. There was no breach of
Article 12.2. The moving day grievance is therefore dismissed.
The Bankruptcy Court Grievance
The starting point for this request for time off, was quite different from the
"moving day" request. The Grievor did not plan his affairs based upon some assumption
or presumed entitlement to time off - let alone time off "with pay", On the contrary, his
efforts were directed to dealing with his financial problems personally, and privately, and
without any interaction with the College at all.
The Grievor expected that he would be able to navigate through this
second bankruptcy process without taking any time off work - just as he had done in the
past; and when he learned that he was obliged to appear in Court, and that a hearing date
43
had been set, he made an effort to change the date, and also to clarify how much time off
work he would need that day. In this respect, his approach was quite different from that
of the grievor in the McEachran case, and was different, too, from his own approach to
the moving day issue. There was also a dialogue with his supervisor, explaining his
predicament, outlining his efforts to change the date, and explaining that he could not
necessarily make do with only a partial day off, because he could not control when he
would be called upon, or how long the legal proceeding would take.
Yet the situation turned out to be beyond his control, despite his efforts to
respond to his financial predicament in a way that would avoid taking any the time off at
all.
The Grievor's situation also has a sympathetic or compassionate aspect
that a "moving day" or a "routine medical appointmenf' does not: a second bankruptcy
occasioned by the return of his wife's life-threatening illness, plunging the family, once
again, into personal and financial struggles. [The Grievor testified that he, too, now has
cancer]. That reason may not resonate like a medical emergency or taking care of a sick
child, but it is not a mundane or run-of-the mill reason either.
Finally, to the extent that it may matter that the basis for the request is
usual or unusual, frequent or infrequent, something unique and personal to the individual
or something likely to be shared by other employees (a little or a lot), then this is
44
certainly a highly unusual request for time off. How common is it for an employee to ask
for time off to attend Comi for his second bankruptcy?
Obviously, (and without here speculating too much) an employee may
have any number of interactions with "the law" or with the Courts, with different
demands and consequences, depending upon the circumstances; and it is nice question
whether or when (if at all) the Employer may be contractually required to subsidize the
employee for any lost work time associated with such legal involvement. Because,
equally obviously, there can be considerable variation, depending upon which legal rights
or obligations are being engaged (fighting a traffic ticket; defending against criminal
charge; pursuing or defending a civil claim of some kind, involvement with some
regulatory tribunal like the OHRC or the WSIB, fighting with neighbours or others about
property~related issues, the toils and tribulations of family law, and so on).
Is the College obliged to indemnify the employee for any wage losses
occasioned by his/her need to pursue such legal interests, simply because they often have
to be addressed during regular business hours? Is this a reasonable expectation of the
employees or the bargaining parties, flowing from the language of Article 12..2 (to return
to the observations of Arbitrator Bendel in his Centennial cases)? We are unaware of any
College cases that address that question let alone answer it in the affirmative; and there is
something to be said for Employer Counsel's argument that the limited scope of Article
12.6 (which is confined to being a witness and jury duty), may be an aid to interpreting
the scope of Article 12.2.
45
However any way one looks at it, how often is the Employer going to be
asked to facilitate a one day compulsory Court attendance, in the context of a second
bankruptcy, occasioned (at least in part) by an employee's spouse's life threatening
illness? How often is that likely to arise during the career of any, let alone, many of its
employees? Moreover assuming; as Mr. Golden suggested, that the number of claims for
paid time off has escalated in recent years, so that it may be legitimate for the Employer
to look at these issues more carefully, how often has that particular situation been
advanced as a reason for wanting time off (compare, again, medical appointments)?
*
Put differently: if the Employer is concerned about "floodgates", and if it
is concerned that if a local department manager grants paid time off, ever, in any
circumstances, it will solidify into a new contractual entitlement for all employees,
(because someone might later argue that to do otherwise would be "arbitrary" or
"discriminatory"), how much of a precedent would be set if it were said that an employee
at least gets "into the ballpark" of Article 12.2, with a one-day Court appearance, to deal
with a second bankruptcy, precipitated by his wife's life-threatening illness (i.e. that there
are indeed sufficient "extenuating circumstances" to require the employer to consider
exercising its discretion) ? Not much, we think.
*
In any event, in the present case, we are persuaded that the Grievor has
established that, in this instance, there were "extenuating personal circumstances" within
the meaning of Article 12.2, and that the Grievor made all reasonable efforts to deal with
46
his personal. business without taking time off work. In our view, he met the contractual
requirements to trigger an exercise of Employer discretion, with the corresponding
obligation on the Employer to be "reasonable" in how it approached the situation.
*
Turning to the Employds explanation for refusing to grant the Grievor's
request for paid time off, the only reason advanced by the Employer, at the time, was that
the Grievor had advance notice that he would need to be away from work for the day in
question. But, in our view, that reflexive and mechanical response cannot be an automatic
answer in all cases, and is not a sufficient answer in this one.
No doubt having a lot of "1ead time" will oftellmean that it is possible (see
the first sentence of Article 12.2) for the employee to arrange his affairs in such a way as
to avoid the need for taking time off, or in a way that will moderate the financial impact.
Lead time also gives the employee time to engage with his supervisor on the subject. And
if an employee fails to do so, that may tell against granting the requested leave, with pay.
But there can be no assumption that an employee can necessarily reschedule a
commitment, and on the evidence here, Mr. Nikoforov had already been told that the
Grievor could not do so.
Sympathetic as we may be to the Employers quest for a "bright line test"
to facilitate the administration of Article 12.2, we are not persuaded that "lead time'l
provides a sufficient answer in the circumstances of this case.
47
There was no other reason advanced by the College for denying leave with
pay; and assuming (but without finding), that the supervisor is entitled to supplement his
reasons at the hearing (which is to say: that the employee is going to be held to the
explanation given at the time, but the supervisor is not), the only additional explanation
actually advanced by Mr. Nikoforov, was his opinion that there were no "extenuating
circumstances", because there was lots of lead time. That was the only thing he looked at
- not the interesting argument made by Counsel about "Court days", or any of the other
local or systemic concerns that might bear upon whether, as an exercise of discretion, this
employee, in this instance, might be entitled to not just to the day off, but also to a day off
with pay. There was no consideration of the whole situation, because it was thought (or at
least, it was said), that there was no need to do so, because there was lots of lead time.
*
In our view, Mr. Nikoforov's explanation does not survive scrutiny and is
simply "wrong" in the circumstances of this case; moreover, we do not think that an
Employer can avoid the multifaceted consideration and exercise of discretion provided
for in Article 12, by an erroneous interpretation of the opening sentences of that Article.
And if Employer "gets it wrong", then it has to "take the consequences" - just like an
employee, who makes a claim that does not meet the requirements of the clause under
which that claims is made, even though s/he might have extenuating circumstances that
were not communicated in a timely way.
*
To be clear: it is conceivable that there arc (or might be) other reasons or
organizational concerns that the Employer could have properly taken into account in
48
considering this particular leave request, in the overall context in which it was made.
Perhaps the parties' expectations (per Arbitrator Bendel's analysis) or the frequency of
the Grievor's requests might have been relevant (something pursued in cross-examination
of the Grievor, but not something referred to by Mr. Nikoforuk as a reason for denying
the claim). Perhaps, too, it matters that the Grievor has 39 years' service and he has never
asked for time off for this reason before - factors that the Union suggests should be taken
into account. We decline to speculate. Because the only reason advanced by the
Employer, in this instance, is one which we do not think is supported, in this case, by the
evidence and by the language of Article 12.2 as we read it. And to repeat, we do not think
that the Employer can avoid the measured exercise of the discretion contemplated by
Article 12.2, by an erroneous "bright line test", or by misapplying the term "extenuating
personal circumstances II n which we find QQ exist in this case.
*
For these reasons, we find that with respect to the Grievor's second
request for time off in the week of March 26th, the Employer has failed to properly
consider and apply Article 12.2.
*
But what is the appropriate remedy?
*
One remedial response might be to remit the matter back to the Employer,
for further consideration in light of the determinations made in this Award, The Employer
could then be asked to decide, today, what might have been decided two years ago, had
the Employer properly read Article 12.2 and weighed the evidence before it. The
49
Employer might also be directed to look at things, today, that it did not look at two years
ago; then consider what effect those things might have on the exercise of its discretion.
However, there is a high degree of artificiality about that exercise, two
years after the fact, and it could easily become a recipe for further litigation in the
particular setting of this case; so that as in Fanshawe (Skinner Grievance), and Re St.
Clair College (May 15, 1985, Brent), and more recently in Seneca College (Shannon
Grievance) [decision of l.G. Thorne, July 11, 2002], we think that the more appropriate
remedy is to simply require the Employer to rectify the Grievor's vacation bank --
essentially, requiring Employer to give back to the Grievor the vacation day that he had
to use, because the Employer did not meet its obligation to fully and properly consider his
request under Article 12.2. That seems to have been the established arbitral response
where there has been a "process breachl1 of the kind described above, and where the
amount in question is relatively small, and where no other employee interests arc
involved. And in our opinion, it is the appropriate remedy in this case as well.
For all these reasons, therefore:
(1) the moving day grievance is dismissed;
(2) the Bankruptcy Court day grievance is allowed; and
(3) The Employer is directed to return one "vacation dayll to the Grievor's vacation
bank, (which may then he taken in accordance with whatever practice pertains to
the use of "vacation days").
50
The Board will remain seized in the event that there is any difficulty in
implementing this remedial direction.
DA TED AT TORONTO THIS 24th Day of April 2009.
l
(( R.O.
R.O. MacDowell, Chair
I agree with the disposition of the "moving day grievance" and dissent
with respect to the disposition of the "bankruptcy comi day grievance" [see attached]
(( A"'-W B f.A..-Y~ ((
[College Nominee]
I agree with the disposition of the "bankruptcy court grievance" and
dissent with respect to the disposition of the "moving day grievance" [see attached]
(( P O-MM'l.tv fv1 LM'Vt-- fv1 ~)
[Union Nominee]
51
Dissent of Board Member Ann Burke:
I agree with the decision of Arbitrator MacDowell in respect of the
"moving day grievance". Having had the opportunity to review the reasons of the
majority in respect of the Bankruptcy Court grievance I find that I must respectfully
dissent.
There was little controversy between the parties in respect of the
exceptional nature of circumstances required to give rise to the exercise of the employer's
discretion to pay an employee for time not worked. Counsel for the Union readily
indicated that it was not the Union's position that there is an automatic right to paid leave
under art. 12.2. The Union also stated that it was not their position that "any court
hearing" is exceptional. There also appears to be recognition on the part of the Union that
the employer's exercise of discretion under this provision must be judged based on the
information provided at the time that the discretion is exercised. This is specifically
recognized in paragraph 3 of the Memorandum of Understanding referred to by the
majority.
In view of this, it appears that the determinative matter for both the
majority and the parties turns on what information management was provided as a basis
for the request to exercise its discretion.
52
On the matter of credibility, I prefer the evidence provided by Mr.
Nikiforov. The grievor's evidence was clearly self-serving. The Union chose not to call
evidence which could have supported the necessity for his absence all day to attend
Bankruptcy Court or that it was his second bankruptcy which required attendance at
Court. With respect to Mr. Nikiforov's evidence, it is also noted that in argument the
Union observed that Mr. Nikiforov was frank in giving his evidence and in particular in
stating that there were matters which he did not recall. He was firm however in stating
that the grievor did not advise him that he was required to attend at court to deal with the
matter of his personal bankruptcy. The mention of bankruptcy would have been
memorable had it been disclosed to Mr. Nikiforov. It was his recollection that the
grievor's explanation of the need for leave was merely that he had to attend at court for
personal reasons and that the grievor stated that further information was none of anyone's
business (a reason he repeated in respect of his failure to provide details of his request in
his email dated February 26, 2007 where his reason for the request was "to attend to a
personal matter" and consistent with his evidence before the Board.)
Mr. Nikiforov was also frank in stating that he did not recall the specifics
of the griever's request which is understandable if all he was told was that he needed to
attend court for personal reasons. It was for this reason that he required clarification prior
to making his decision. In his email of March 2, 2007, he stated "Could you remind me
the reason you are asking for time-off all day Wednesday H.I can't remember it now for
sure. Please send me an email." The griever's response is also consistent with Mr.
Nikiforov's recollection of the previous conversation with the gricvor "I have to go to
53
court that day. I didn't cc: everyone else because its' none of their business, you are the
only one who has to know since you are my manager.l> There is no reference there to any
efforts to have the date changed or that his attendance was required as set out in the
trustee's letter or for that matter that it was his second bankruptcy occasioned by his
wife's illness.
It was pointed out in his evidence-in-chief that he could have provided
specifics as to the reason for his attendance in court because, for once, he did not cc. his
usual list of union local officials and other employees, in his response dated March 2,
2009. In cross-examination, the grievor was asked why he did not answer Mr.
Nikiforov's request for specifics. His answer was that he "figured he knew because I told
him". Clearly, Mr. Nikifol'OV did not recall what specifically was said or he would not
have sent his email of March 2, 2007 at all. The grievor's response on March 2, 2007
reflects his original position; it was nobody's business but his own. In cross-examination,
he admitted that his response did not provide the reason for his court appearance and that
there were no privacy concerns which prevented him from doing so.
There is also the question of the letter from the trustee in bankruptcy. The
Grievor admits that he did not show it to Mr. Nikiforov. No acceptable answer was ever
provided as to his failure to show Mr. Nikiforov the best evidence of his need for time
off. Certainly great reliance was placed on that letter at the hearing and one would have
expected the grievor to show his supervisor such a letter in SUPPOlt of his request for time
off with pay. At the same time, evidence of the grievor's attitude may be seen in what he
54
clearly viewed and referred to as his "courtesy call" prior to submitting his email request
in which he merely said he had to "attend to a personal matter". It is evident that grievor
feels that art. 12.2 leaves should be granted automatically irrespective of the employee's
reason for requesting such leave and that the employer is not entitled to more specific
information.
I believe that it is also telling that the grievor did not pursue the matter
with Mr. Nikiforov after paid leave was denied but that he chose instead to file a
grievance. Certainly this would have been a good time to go to his supervisor and show
him the letter indicating that his attendance was required. There was also no evidence put
forward by the Union as to why Mr. Bennett's wife could not attend the required
appearance in court. The letter from the trustee in bankruptcy is addressed to both Mr.
and Mrs. BeJll1ett. There was no evidence that he even pursued the option of having his
wife appear to answer questions concerning whether payments had been made.
The majority's reasons concluding that extenuating personal
circumstances existed in this case appears to be based on the fact that Mr. Bennett's
attendance in cOUli was required because this was his second personal bankr!ill1~ and
because the bankruptcy was occasioned by his wife's life~threatening illness. There is
absolutely no evidence that this was conveyed to Mr. Nikiforov when the grievor
requested paid leave. As a result this information caJll10t be relied upon as a sympathetic
or compassionate aspect of this case which should have influenced the decision made by
Ml'. Nikiforov. This information was provided for the first time at arbitration and
55
therefore cannot be considered m determining whether Mr. Nikiforov's exerCIse of
discretion was reasonable.
I would have dismissed this grievance.
(~IIJl E. Burke"
***
Dissent of Board Member Pamela Munt-Madill:
With respect, I concur in respect of the "Bankruptcy Court grievance". I
dissent with respect to the "Moving Day grievance."
The Board finds, regarding the Court Day grievance, that the sole factor
the College considered in denying the leave was the presence of advance notice of the
conflict. At pages 47 and 48 of their decision the Board finds that this presence of
advance notice may be a relevant criterion in a proper exercise of discretion but not a
conclusive or sufficient criterion. For this reason the Grievance was upheld.
A review of the evidence in its totality regarding the College's denial of
the Moving Day grievance should result in the same conclusion. The presence of advance
notice was the initial and sole reason the grievance was denied. The evidence on the
initial grievance denial should be viewed as, if not determinative of the issue, at least
56
extremely persuasive. I do not believe this evidence was convincingly contradicted in the
oral testimony.
For this reason the Moving Day grievance should have been allowed for
the same factual and legal reasons the Board applied to the Court Day grievance.
Accordingly, the Grievor should he fully compensated for any losses resulting from the
College's denial.
"Pamela MUll/-Madill"
57