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HomeMy WebLinkAboutN 09-12-07 IN THE MATTER OF THE COLLEGES COLLECTIVE BARGAINING ACT AND IN THE MATTER OF AN ARBITRATION BETWEEN SHERIDAN COLLEGE OF APPLIED ARTS & TECHNOLOGY (the ?College?) - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION (the ?Union?) AND IN THE MATTER OF A GRIEVANCE OF N (2009-0245-0001) (the ?Grievor?) BEFORE: C. Gordon Simmons, Chairperson Jacqueline Campbell, College Nominee Ron Davidson, Union Nominee APPEARANCES ON BEHALF OF THE COLLEGE: Brenda Bowlby, Counsel Megan Essex, Manager, Labour Relations Solomon Chan, Manager, Accounting Services Natalia Raguz, Human Resources Associate APPEARANCES ON BEHALF OF THE UNION: Mary Anne Kuntz, Senior Grievance Officer Jay Jackson, Local 245 N, Grievor A hearing into this matter was held in Oakville, Ontario on October 22, 2009. - 2 - The grievor claims she was entitled to take a day off work with pay pursuant to art. 12.2 of the collective agreement because she had to accompany her mother to medical appointments, including one with a specialist, which she only learned about two nights before the scheduled appointments were to be held. The college takes the position she was not entitled to leave with pay. Instead, the college maintains she ought to have taken a vacation day; used a lieu day; or, taken the leave without pay. Art. 12 reads, as follows: 12. LEAVES 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. ... The facts are not in dispute. The grievor is an accounts receivable clerk whose scheduled hours of work are from 9:00 a.m. to 5:00 p.m. with one hour for lunch. One of the grievor?s responsibilities is to provide refunds to students. The - 3 - college states that any absences from her work causes delays with paperwork which in turn causes delays in getting refunds to students. The grievor testified her mother informed her on Wednesday evening, February 25, that she had two medical appointments scheduled for Friday, February 27, one of which was with a specialist. The grievor maintains a chart for events involving her mother?s medical appointments, etc. in order to coordinate and arrange with her eight siblings a rotational schedule assigning siblings their ?roster? (for sake of a better word) when it is their turn to take care of their mother?s needs. On this occasion, it was the grievor?s turn to take her mother to her appointments but she said her mother had failed to tell her until Wednesday evening. There is no reason to doubt the grievor?s veracity on this point. The grievor canvassed her siblings, or those living within reasonable travelling distance, to see if anyone could substitute for her and take their mother to her appointments. She was unable to find anyone available to step in for her. On Thursday, February 26, the grievor sent an e-mail to her supervisor which read (ex. 2): Subject: time off 12.2 From: N Date: Thu, 26 Feb 2009 14:17:11 - 0500 To: Solomon Chan Solomon I need to take Friday Feb 27 as 12.2 to take my mother for tests at the hospital and then to the specialist. - 4 - Thank you It is to be noted the e-mail was sent at 2:17 p.m. The grievor explained she became busy when she appeared for work and it slipped her mind to ask for the time off until that time in the day. While she could have been a bit more considerate in sending the e-mail earlier, nothing turns on this. Solomon Chan is the grievor?s immediate supervisor. Mr. Chan began his employment with the college in January 2009 and had been in the position approximately six weeks. He was new to the college system having come from the Ontario government. In any event, Mr. Chan was busy and did not reply to the grievor?s e-mail. The evidence reveals the grievor went into Mr. Chan?s office at approximately 4:55 p.m. and asked if he had received her e-mail to which Mr. Chan replied ?yes?. She asked if he had an answer and he replied by saying either, according to the grievor, ?just go? or ?just take the day?. Mr. Chan?s version was ?if you need time off, then take the time off?. It is agreed he did not say ?no? to a 12.2 leave nor did he indicate anything in regard to what kind of leave was being granted. Mr. Chan, being new to the college system, contacted Human Resources for assistance. He testified he understood any type of leave request had to go to Human Resources where he would - 5 - get assistance in arriving at his decision on the type of leave to be granted. On Friday, February 27, Mr. Chan sent an e-mail to the grievor which contained a series of questions. The e-mail read (ex. 3): Subject: time off 12.2 From: Solomon Chan Date: Fri, 27 Feb 2009 08:38:55 - 0500 To: N CC: Luisa Checchia Hi N, In response to your Article 12.2 leave request, I need you to answer the following questions. Please provide your answer underneath each question. 1. How long has this appointment been scheduled? I was just informed Wednesday evening by my mother 2. Is this a follow-up appointment or follow-up appointment? Please clarify 3. Who is the main caregiver for her mother? My brothers, sisters and I 4. Is there anyone else who can bring her mother to this appointment? Brothers and sisters unavailable and it is my turn. 5. How long is the appointment going to take? It is 2 different appointments. 10:40am hospital and 11:30am specialist. 6. Are there any other extenuating circumstances that we should know about? Brothers & sisters unavailable and it is my turn. My mother was not well from a new illness. Thank you, Solomon Chan [Note: The italized words are those of the grievor in her response to Mr. Chan.] - 6 - Mr. Chan clarified his question by asking, ?Is this a follow-up appointment or a routine appointment?? to which N replied on March 2 (ex. 5), ?It is a follow up appointment.? Mr. Chan said his decision to deny the 12.2 leave with pay request was based on the grievor?s e-mail response to his six questions. vivo voce During the course of the grievor?s evidence she provided additional reasons why she felt she was entitled to leave with pay pursuant to art. 12.2. She said her mother, a 74- year-old lady, lives alone in Burlington, Ontario. She has inter alia suffered, , from agoraphobia for approximately 20 years for which she receives medical treatment. As we understand it, a person suffering from agoraphobia experiences panic attacks in crowded places surrounded by unfamiliar faces with no escape routes. The anxiety these people suffer often results in an intense fear of leaving one?s comfort zone and often results in isolation and has an extremely negative effect on functioning and relationships. The grievor testified her mother does not travel in taxis and finds it hard to go out on her own. On the Friday of the appointments, the grievor said her mother had worked herself into such a state she was going to cancel her appointments. According to the grievor, her mother had worked herself into being ill that day. The two appointments were scheduled for 10:40 a.m. at the hospital and 11:30 a.m. with the specialist. She got in to see the specialist at 12 noon. - 7 - During cross-examination the grievor was questioned why she had not come to work for a period of time earlier in the th morning of the 27 and returned to work after dropping her mother off at home. The grievor?s response was that her mother?s agoraphobia condition requires time to get ready in the mornings and after returning home at approximately 1:30 she prepared lunch for her mother and took time to calm her down. In essence, the grievor said it was her turn to take her mother. When she learned of the appointments at the last minute she tried to have one of her siblings step in to help but none were available. She said, ? I just can?t let her go on her own?. The grievor was also asked whether because the appointment was ?a follow-up? could it not have been adjourned. She replied, ?No ? it is a specialist.? When asked if she had called the doctor?s office she replied further, ?You usually keep a specialist?s appointment when you?ve got one?. The grievor?s only other request for a 12.2 leave was a number of years ago when her father was dying. The leave with pay was granted on that occasion. UNION SUBMISSIONS The union takes the position the instant situation is different from the prior situations where the siblings and the grievor were able to arrange taking the mother to her medical appointment. What we have here is a chronically ill patient who - 8 - suffers from agoraphobia and finds it difficult to leave home. The mother forgot to tell the grievor she had a medical appointment until before the day of the appointment. The grievor answered the questions asked of her as to the reasons for the leave request. The college did not say the supplied information was insufficient and the grievor shared with the panel the limitations of the mother. What happened was an unexpected occurrence which squarely falls within ?extenuating personal circumstances?. The union is of the view the unexpected nature of the occurrence ought to have been considered by the college. The claim ought to have been granted. In support of its position the union relies on the following decisions: Confederation College and Ontario Public Service Employees? Union (Thelma Smith) , 1982, unreported (O?Shea, Courtney, Millard Panel) Seneca College of Applied Arts and Technology and Ontario Public Service Employees Union (Gregory Shannon) , 2002, unreported (I.G. Thorne) St. Clair College and Ontario Public Service Employees? Union (Rinshed) , 1985, unreported (Brent, Gallivan, Herbert Panel) Loyalist College and Ontario Public Service Employees Union (John McPeak) , 1989, unreported (Kruger, Gallivan, Seymour Panel) Georgian College of Applied Arts and Technology and Ontario Public Service Employees Union, Local 249 (J. Peacock) , 2001, unreported (Saltman, Gallivan, Murray Panel) Ontario Public Service Employees Union and Fanshawe College (Sid Skinner) , 1992, unreported (MacDowell, Switzman, Hubert Panel) - 9 - Confederation College In (O?Shea), the grievor applied for a paid leave of absence to accompany her daughter to the Mayo Clinic for medical treatment. The article (then art. 10) had been newly introduced into the collective agreement. In that case, the college had argued the parties had intended special leave in art. 10.2 (now 12.2) for ?extenuating personal circumstances? to cover the type of situation where the employee was unable to get to work because of weather conditions or because the employee went to the assistance of someone who was dying, etc. (p. 10). The union argued ?personal reasons? meant entitlement because of the worry and anxiety associated with the daughter?s tests and the special leave in the ?extenuating circumstances? which were associated with the daughter?s trip. The panel stated the parties intended in order to be entitled to a paid leave of absence the qualifying words ?in extenuating circumstances? were intended to limit such paid leave to circumstances which directly affected the employee personally and with respect to which the employee has no control. It was decided the college gave full consideration and there was no basis to determine it acted unreasonably. Confederation Unlike where it was determined other viable options had been available, the grievor in the instant case had no other viable options. None of her siblings could step in to take the mother and, therefore, the grievor felt she had ?no - 10 - control? over the matter other than to take her mother to her medical appointments. The union urges the panel to allow the grievance. COLLEGE ARGUMENT The college argues that one must recognize limits to the obligation imposed on the college. There are leaves without pay and leaves with pay. When one puts it all together one must recognize those limits. It is not simply a case where an employee finds it is their turn to take their mother to a doctor. It is a fact employees take mothers and children to medical appointments all the time. In so doing there is a cost involved. Here, it impacts on service to students and on educational programs. However, parties have said that there may be exceptional circumstances where the college may grant leaves with pay. One does not want to trivialize the grievor?s situation. It happens. The grievor?s mother is going through significant health challenges and the grievor feels she must be there. But one must ask ? does the college have an obligation to pay in all cases of the employee who is not at work? Cases suggest it is only obligated to do so where there are extenuating circumstances. It is the college?s position there were no extenuating circumstances in the factual situation before us. In support of its position the college relies on: - 11 - Confederation College and Ontario Public Service Employees? Union (Thelma Smith) , 1982, unreported (O?Shea, Courtney, Millard Panel) Loyalist College and Ontario Public Service Employees Union (Sandra Novroski) , 1996, unreported (Brown, O?Connor, Vezina Panel) Fanshawe College and Ontario Public Service Employees Union (Louise Watt) , 2005, unreported (O?Neil, Riddell, Murray Panel) Centennial College of Applied Arts & Technology and Ontario Public Service Employees Union (Colleen Purchase) , 2006, unreported (Simmons, Riddell, Murray Panel) Centennial College of Applied Arts and Technology and Ontario Public Service Employees Union (Yvonne Glenville) , 2007, unreported (Bendel, Burke, Seymour Panel) The Ontario Public Service Employees Union and Centennial College of Applied Arts and Technology (Sandra McEachran) , 2008, unreported (MacDowell, Burke, Murray Panel) Confederation College The college also relies on and, in particular, on the statement contained on p. 15 which reads: ?... circumstances which directly affect the employee personally and with respect to which the employee has no control.? Fanshawe In (O?Neil) the grievor requested two days paid leave to attend an uncle?s funeral in Rochester, NY. The leave was granted but without pay. At p. 6 of the decision the panel referred to four criteria enunciated by Arbitrator Verity which reads: ... In an earlier Loyalist College decision dated th January 2, 1990 and reported at 9 L.A.C. (4) 166, a Board of Arbitration chaired by Arbitrator Kruger considered a grievor?s claim for paid leave to be with his wife leading up to and after the birth of his - 12 - child. He was paid for one of the two nights he was off attending to his wife who had a long and difficult labour and eventually required a Caesarean section. The Board considered the evidence using the criteria Re The Crown in Right of articulated by Arbitrator Verity in Ontario and OPSEU , an unreported decision dated April 9, 1988, as follows: 1. The decision must be made in good faith and without discrimination 2. It must be a genuine exercise of discretionary power, as opposed to rigid policy adherence. 3. Consideration must be given to the merits of the individual application under review. 4. All relevant facts must be considered and conversely irrelevant consideration must be rejected. The Board found that the exercise of discretion was flawed in that it took into account irrelevant matters in arriving at the decision to deny pay for the second missed shift. These included most notably the idea that the grievor had not reserved vacation time in advance for the anticipated birth, and his failure to call in on the second day of absence. As well, the Board considered that the employer had felt bound by its practice of granting only one day for births, despite the special circumstances of the grievor?s situation. The college in the instant case stated that criteria #1 was not an issue. Further, there is no allegation the decision was not made in good faith nor that discrimination was present. There is no allegation of a rigid policy adherence as set out in criteria #2. Criteria #3 was satisfied as there is no allegation Mr. Chan and the Human Resources Department failed to give consideration to the merits of the application. Indeed, as Mr. Chan was new to the system he consulted Human Resources to ensure that he carried out his duty properly. His decision in denying the request was given after the grievor responded to the - 13 - request for reasons for the leave. As for criteria #4 there is no suggestion that irrelevant considerations were applied. In considering these criteria, the college asks the panel to focus on whether or not the decision to deny the request was unreasonable based on whether or not the college?s conclusions that the reasons given by the grievor did not constitute extenuating personal circumstances. Again, the panel Loyalist is referred to the decision of Brown wherein it is stated that it is not whether the Board of Arbitration replaces its decision for the college?s but rather, was the college?s decision unreasonable. The college submits the decision was not unreasonable and asks that the grievance be dismissed. REASONS FOR DECISION The article in question first appeared in the collective agreement that became effective on September 1, 1981. That was over a quarter of a century ago. The article has been visited on a number of occasions through arbitration. Unfortunately, the decisions have been unable to arrive at the point where it could be stated with any degree of certainty that the law has become settled. This is due, no doubt, to a large degree, to the fact each set of facts and circumstances are somewhat unique. However, there is a statement contained in - 14 - Loyalist supra (Brown), , which we find attractive. It states on p. 11 as follows: ... The right to payment for personal leave is conditioned by the terms of the second paragraph of Article 2.2 and on the facts of this case, bears on the issue of whether there were, ?extenuating personal circumstances? to support the exercise of the discretion of the Employer to grant a leave with pay to the Grievor. As noted in the awards referred to above on this issue, each grievance is fact sensitive and must be dealt with accordingly. While there has been developed a general approach to consideration of leave with pay requests, the issue is determined based on the particular circumstances and whether the Employer gave reasonable consideration to the facts in the exercise of its discretion to grant to [sic] withhold payment under Article 12.2 [emphasis added]. The facts the college relied on were those set out in the grievor?s e-mail response reproduced above. The college was not made aware of the fact the mother suffered from agoraphobia with its inherent disabling effects. Those facts were adduced during the testimony of the grievor advanced during the hearing. The only ?other extenuating circumstances? the grievor stated in her e-mail response was ?brothers and sisters unavailable and it is my turn ? my mother was not well from a new illness?. Based on that information, requested by the college, a leave of absence was granted but without pay. Having carefully considered the evidence and submissions of the parties, it cannot be said the college?s decision, based on the facts available to it at the time of its decision, was unreasonable. The grievance is denied. - 15 - th Dated at Kingston, Ontario, this 7 day of December , 2009 C. Gordon Simmons Chairperson ?Jacqueline Campbell? I concur/dissent Jacqueline Campbell College Nominee See attached I concur/dissent Ron Davidson Union Nominee - 16 - DISSENT I respectfully must dissent from this majority decision. The relevant circumstances, that confronted the grievor, when applying for the leave under Article 12.2, differs substantially from that of the Awards relied upon by the College and referred to by the majority. In this case, we have a 28-year employee, who has only on one other occasion, requested leave with pay and that was years ago, when her father was dying. She shared the responsibility of caring for her mother with eight siblings. On all occasions, her mother?s medical appointments had been scheduled to take place after the grievor finished work. The mother, who suffers from a number of diseases, forgot to tell the grievor of the appointment, until two days before it was due. Cancelling the appointment was not an option. As we all know in to-day?s world, cancelling a Specialist appointment can delay medical attention for many months, while waiting for an appointment to be rescheduled. Even though it was the grievor?s turn to take her mother, she still tried to get her siblings to take her instead. I therefore respectfully submit, that given that each individual case should be considered on its merits, that this case meets the test of ?extenuating personal circumstances? and that leave should have been granted, with pay. Accordingly I would have upheld the grievance. Ron Davidson Union Nominee