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HomeMy WebLinkAbout2018-3535.Sookdeosingh.22-03-22 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 GSB#2018-3535; 2018-3949 UNION#2019-0551-0001; 2019-0551-0005 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Sookdeosingh) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Ken Petryshen Arbitrator FOR THE UNION Matthew Hrycyna Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Peter Dailleboust Treasury Board Secretariat Legal Services Branch Counsel HEARING October 30, 2020; February 25, 2021 - 2 - Decision [1] I have two grievances before me filed on behalf of Ms. R. Sookdeosingh. In her grievance dated January 16, 2019, Ms. Sookdeosingh claims that the Employer’s refusal to grant her a further unpaid leave of absence to pursue her education was unfair in the circumstances. Having denied her last request for another leave of absence, the Employer ultimately directed her to return to work by January 21, 2019. She did not do so. Relying on section 42 of the Public Service of Ontario Act (“PSOA”), the Employer declared that Ms. Sookdeosingh had abandoned her position with the Ontario Public Service and terminated her employment. In a grievance dated February 7, 2019, Ms. Sookdeosingh alleges that the Employer wrongfully terminated her employment and requested that she be reinstated to employment with the Ministry. [2] The Employer called its evidence first. It called Ms. A. Fernandes, Deputy Regional Director, to explain why the Employer had denied Ms. Sookdeosingh a further unpaid leave of absence. The Union called Ms. Sookdeosingh to testify. Many of the relevant facts were not in dispute. [3] Ms. Sookdeosingh was an Administrative Support Clerk (OAD08) at the Ministry’s Yonge Street Probation & Parole (“P & P”) office. She initially worked as a Fixed Term Employee (FXT) and on December 5, 2011, she became a regular, permanent employee by way of a conversion. Her Continuous Service Date is October 26, 2009. On October 3, 2011, Ms. Sookdeosingh requested a leave of absence (“LOA”) without pay for educational purposes since she intended to pursue a Master’s Degree at the University of Oxford (“Oxford”) at London, England. The Employer approved her LOA without pay for just shy of six months to start on October 3, 2011, and to end on March 31, 2012, conditional on her conversion. The Employer approved a number of extensions to her LOA. Ms. Sookdeosingh completed her Master’s Degree in 2012 and then decided that she wanted to obtain a PhD in history. After completing preliminary research, she put in her proposal and started a PhD program in 2014. Ms. Sookdeosingh shared with the Employer that it would likely take four years to get her PhD. [4] By the time she started her PhD, her LOA had been extended four times. By 2018, her LOA had been extended at least seven times. Apart from some of the initial leaves, each LOA was extended for about one year. In each instance, Ms. Sookdeosingh would request an additional extension and the Employer would determine whether it would exercise its discretion to grant an LOA for an additional year. The Union advised that it did not take issue with the Employer’s practice of reviewing Ms. Sookdeosingh’s leave of absence on a yearly basis. - 3 - [5] In August of 2016, given that her current LOA was to expire on September 25, 2016, Ms. Sookdeosingh requested a further extension of her LOA until August 30, 2017. She advised the Employer that she would complete her program by August 2017. By letter dated October 12, 2016, the Employer advised Ms. Sookdeosingh that her LOA would not be extended beyond November 1, 2016, and directed her to report to work by that date. In its letter, the Employer noted that there was no legal or administrative authority for which the Employer can extend the LOA beyond the current five year duration. Ms. Sookdeosingh was quite distressed by this response. She testified that she had further communication with the Employer which ended with the Employer advising her that it was sorry for the confusion. Ms. Sookdeosingh submitted another Request for Leave of Absence form dated October 28, 2016, as well as a letter from Professor Sloan confirming relevant information about her program. In its response by letter dated December 12, 2016, the Employer approved the extension of her LOA based on her assertion that this was her final request. Considering this her final extension, the Employer advised her to report for work on August 31, 2017. She was advised that if she did not appear at work on that day, she would be considered to be on an unauthorized absence. Section 42 of the PSOA was set out in the letter and the Employer indicated that her absence without an approved leave would result in her having abandoned her position. [6] In the latter part of 2017, Ms. Sookdeosingh made another request to extend her LOA. In response to a request for additional information, Ms. Sookdeosingh advised the Employer that she expected to complete her course of study by October 31, 2018, that she intended to return to her position with the Ministry at the completion of her studies and that she expected to be able to resume her position by November 15, 2018. By letter dated January 10, 2018, Ms. A. Berday, ADM, approved the extension of the LOA until November 15, 2018, and indicated that no further extension would be approved. [7] Ms. Sookdeosingh was granted a leave from her PhD program from April 20, 2018, until October 7, 2018, for personal medical reasons. She did not advise the Employer of this medical leave at the time and testified that her priority was on her medical care. [8] In November 2018, Ms. Sookdeosingh wrote to ADM Berday requesting an extension of her LOA for an additional year. She indicated that her thesis submission date had been pushed back to October 2019 because she had taken a medical leave from her studies. ADM Berday responded to this request by letter - 4 - dated November 29, 2018, as follows: This letter is in response to your email dated November 9, 2018, in which you requested a further one year extension to your leave of absence (LOA). In your email you note that as a result of unforeseen circumstances, your thesis submission date has now been pushed back. You stated that you took a break from your studies last year for medical leave, and now have a new submission date for your thesis. You also provided documentation from your faculty to confirm that you were on a medical leave of absence from April 20, 2018 to October 2018. The Employer has been approving your LOA for educational purposes since Oct 2, 2011, which is now two years beyond the five year LOA maximum provided for in the Ontario Public Service Compensation Directive. Despite the Employer informing you on August 31, 2017 that this would be your final extension, I agreed to extend your LOA on January 10, 2018 until November 15, 2018 based on your new expected program completion date of October 31, 2018. In the January 18, 2018 letter I again noted that no further extensions would be approved. The timing of your reported illness is indeed unfortunate, however based on the previous notice provided to you that your LOA would not be further extended, is not considered a mitigating factor to extend your LOA. Your request to extend your LOA for a further one year period is denied. Accordingly, it is the employer’s expectation that you will report for work in your position of Support Staff at Yonge St. Probation and Parole Office, 920 Yonge St., Toronto, Ontario on January 2, 2019 at 9:00 am. Given the length of your absence retraining may be required. Alternatively, you may resign from your employment with the Ontario Public Service as of January 2, 2019 and provide a written resignation by no later than December 28, 2018. Please note that if you do not provide written notice of your resignation by December 28, 2018 or report for work as of January 2, 2019 at 9:00 am, you will be placed on a unauthorized leave of absence from the workplace. Pursuant to section 42 (1) of the Public Service of Ontario Act, 2006, “If a public servant appointed by the Public Service Commission is absent from work without approved leave for a period of two weeks or more, the Commission may declare, in writing, that the public servant has abandoned the position and that his or her employment by the Crown is terminated.” Furthermore, section 42 (2) states: “When a declaration with respect to a public servant is made under subsection (1), the termination takes effect and the public servant ceases to be employed by the Crown.” - 5 - As such, if your absence without approved leave extends beyond January 16, 2019, the employer will deem you to have abandoned your position with the Ontario Public Service. … [9] On December 12, 2018, Ms. Sookdeosingh asked if she could appeal the ADM’s decision. On January 2, 2019, the Employer advised her that there is no appeal process and that the ADM’s decision was final. In this communication, the Employer advised that her date for returning to work was now January 21, 2019. Ms. Sookdeosingh then filed her grievance dated January 16, 2019. On January 17, 2019, she advised the Employer that she will not be resigning her position and that she will be unable to return to her position on January 21, 2019. Subsequent to January 21, 2019, the Employer wrote to Ms. Sookdeosingh twice to warn her of the consequences of her not returning to work by February 4, 2019. Ms. Sookdeosingh responded to each letter by indicating that she could not return until her course work was completed. [10] By letter dated February 5, 2019, the Employer gave notice to Ms. Sookdeosingh of its declaration that she had abandoned her position and that her employment was terminated effective February 5, 2019. Ms. Sookdeosingh then filed her grievance dated February 7, 2019. [11] Ms. Fernandes was involved in consultations with the ADM about Ms. Sookdeosingh’s latest request to extend her LOA for another year. She indicated that the Employer reviews all LOA’s in the Region on a yearly basis. In testifying about how the Employer exercises its discretion when dealing with LOA requests, Ms. Fernandes indicated that the Employer considers all of the relevant circumstances, including the circumstances of the individual making the request as well as the impact on the workplace at the relevant time if the request were to be granted. The matters which the Employer took into account when exercising its discretion with regard to Ms. Sookdeosingh’s last request to extend her LOA can be summarized as follows. Ms. Sookdeosingh had been on an educational leave from her home support staff position for many years and had received during that time many extension approvals. When she made her last request for an extension, the Employer appreciated that she had devoted a lot of time and expense in obtaining her Master’s Degree and in working on her PhD, and that she may have been close to meeting the requirements for the completion of her PhD. However, her absence from the workplace for such a long time had an increasing impact on the Yonge Street P & P office. Up to the time of her last request for an extension, there had been four or five FXT’s who had been used to backfill Ms. Sookdeosingh’s Support Staff position. The FXT’s could not be converted to a permanent position because they were backfilling. Faced with these - 6 - circumstances, the FXT’s became unhappy with their situation and left their position. Some had grieved the fact that they could not be converted to a permanent position. In addition to added training costs to replace an FXT and the affect on work distribution when an FXT left, this situation had an increasing detrimental impact on morale at the Yonge Street P & P office. The length of time of Ms. Sookdeosingh’s LOA took an increasing toll on the office that affected everyone. In weighing the entire situation, the Employer decided to deny Ms. Sookdeosingh’s last request to extend her LOA because of the detrimental impact her absence was having on the Yonge Street P & P office. [12] It was clear from her testimony that Ms. Sookdeosingh took considerable exception to the Employer’s decision to deny a further extension to her LOA. She indicated that she believed it unreasonable for the Employer to deny the extension when she was close to completing her PhD program. She stated that there was no way she could leave England and return to her Support Staff position on January 21, 2019, given that she had to stay in England to complete her degree. She indicated that she had no intention of abandoning her position with the Ministry, but rather she had always planned to obtain her PhD, return to her position and see what happens. She indicated that knowledge was intrinsically valuable and that she did not obtain the LOA for vocational reasons. She believed that her educational experience would be of value to the Employer when she resumed her position and she did not understand why the Employer would not permit her to return to her position with the Ministry. Ms. Sookdeosingh did obtain her PhD in January of 2020. When she testified in this proceeding held by videoconference, Ms. Sookdeosingh was still living in England and working part- time on a University research team. [13] During his submissions, Employer counsel relied on the following decisions: OPSEU (Morissette) and Ministry of Training, Colleges and Universities , 2009 CanLII 66587 (ON GSB Dissanayake); OPSEU (Mayers) and Ministry of Correctional Services (1992), GSB No. 1030/90 (Kirkwood); and OPSEU (Botosh) and Ministry of the Attorney General, 2018 CanLII 45308 (ON GSB Abramsky). In addition to OPSEU (Botosh), supra, Union counsel referred me to the following decisions: OPSEU (Culkeen) and Ministry of Correctional Services (1990), GSB No. 890/89 (Wright); and, Tam and Ministry of Revenue (1976), GSB No. 1/76 (Beatty). [14] The provision in the Collective Agreement which governs a LOA without pay provides as follows: - 7 - ARTICLE 24 – LEAVE WITHOUT PAY 24.1 An employee may request a leave of absence without pay and without accumulation of credits. A Deputy Minister shall not unreasonably deny such requests. [15] Counsel did not dispute the relevant principles to be applied in a case such as this. The obligations on the Employer when assessing a leave of absence request under article 24 and the standard for reviewing managerial discretion have been well settled in the relevant case law. The following two decisions were referenced in the decisions referred to me by counsel. In OPSEU (Kuyntjes) and Ministry of Transportation and Communications, GSB No. 513/84 (Verity), the Board stated at page 6 as follows: In cases involving the exercise of managerial discretion, Boards of Arbitration generally hesitate to substitute their view for that of the decision-maker, which is a recognition of the fact that Boards have less familiarity than does the Employer with the exigencies of the work place. However, Arbitrators must ensure that decisions are made within the confines of certain minimum standards of administrative justice. These administrative law concepts relating to the proper exercise of discretion include the following considerations: 1) The decision must be made in good faith and without discrimination. 2) It must be a genuine exercise of discretionary power, as opposed to rigid policy adherence. 3) Consideration must be given to the merits of the individual application under review. 4) All relevant facts must be considered and conversely irrelevant considerations must be rejected. In Re Young and Ministry of Community and Social Services (1979), 24 L.A.C. (2d) 145 (ON GSB Swinton), the Board commented on the limits of the Board’s role in reviewing the exercise of discretion as follows: An arbitration board, in subsequently assessing what the employer has done in reaching its decision, then plays a restricted role. It must decide whether the employer has acted reasonably and without discrimination and has turned its mind to the merits of the particular request. If satisfied that these criteria have been met, the board must deny the grievance, even if it disagrees with the result reached by the employer or if it might have reached a decision other than that reached by the employer. The board’s concern is the reasonableness of the decision, not its ‘correctness’ in the board’s view. Such an approach is the proper one to adopt in situations such as leave of absence cases, where the collective - 8 - agreement gives the employer a broad discretion and where the board has less familiarity than has the employer with the needs of the workplace. Unlike the disciplinary area, where employee interests in job security require active arbitral review, it is unwise for an arbitration board to second guess management in the structuring of the work-load. And further, in Re Boulet et al. (1999), GSB No. 1189/99 (R. Brown), the Board stated as follows at page 12: The standard to be applied is not whether the decision was “correct” but rather whether it was made on grounds “relevant to legitimate government purposes”. In other words, what matters is the nature of the reasons underlying the decision and not whether those reasons are of sufficient weight to make the decision appear sound in the eyes of an adjudicator. The sufficiency of the reasons is for the Employer to determine. [16] In requesting that Ms. Sookdeosingh’s grievance about the denial of a further extension of her LOA be dismissed, Employer counsel argued that the Employer properly exercised its discretion in this instance by complying with the considerations set out in the four-fold test. Counsel submitted that Ms. Sookdeosingh could not assume that her LOA would be extended all the time and noted that the Employer never indicated that she could remain on a leave of absence until she completed her PhD. Counsel submitted that the Employer considered only relevant factors in balancing the interests of Ms. Sookdeosingh with the operational needs of the workplace. Counsel noted that the relevant test for reviewing management’s decision in this case is reasonableness, not correctness. Counsel argued that in denying Ms. Sookdeosingh’s last request for an extension, the Employer exercised it managerial discretion reasonably and without discrimination. Counsel also argued that the necessary elements in section 42 of PSAO had been met and that the Board had no option but to dismiss Ms. Sookdeosingh’s grievance challenging her termination. [17] Union counsel maintained that the fundamental question in this case is whether Ms. Sookdeosingh’s request to extend her LOA was unreasonably denied. Counsel submitted that if her request was unreasonably denied, then all of the necessary conditions in section 42 of PSOA cannot be satisfied and that she would be entitled to the reinstatement of her employment with the Ministry. Counsel argued that the denial of Ms. Sookdeosingh’s LOA extension request was unreasonable in the circumstances, and that it was also arbitrary and not made in good faith. In noting the elements of the four-fold test, counsel referred to certain circumstances to support the Union’s view that the Employer did not meet the standard for dealing with an LOA request. In this regard, counsel submitted that, - 9 - after having approved leaves that cumulatively covered many years, the Employer drew an arbitrary line for ending the LOA, without seriously considering the consequences of its decision on the Employer or on Ms. Sookdeosingh. Counsel argued that the Employer’s references to the five-year rule suggests that its decision making was governed by a rigid adherence to policy, even though it may have been applying the rule with some flexibility. Counsel also suggested that the Employer did not appropriately balance the circumstances facing Ms. Sookdeosingh with any specific consideration of what was actually occurring in the workplace, but only considered the general impacts affecting the workplace. Referring to the Employer’s letter denying the extension, counsel noted again the reference to the five-year rule and the Employer’s reference to the fact that it had previously indicated that it would not extend the LOA again. Counsel submitted that these considerations illustrated that the Employer approached the last request for an extension unreasonably because it was not considering the request with an open mind. Finally, counsel submitted that it was significant that we were dealing only with Ms. Sookdeosingh’s request for a one year extension and the fact that she had been granted many extensions in the past, by itself, was not particularly significant. Counsel submitted that the circumstances governing her last request for an extension were no different than those that were present when she previously asked for an extension. Counsel argued that the absence of any changes governing her last request for an extension further supports the Union’s position that it was unreasonable for the Employer to deny the requested extension. Counsel submitted that a determination that her request to extend her LOA was unreasonably denied and the affect of this on the application of section 42 of PSOA should lead me to direct the Employer to reinstate Ms. Sookdeosingh to her employment with the Ministry. [18] The circumstances here are somewhat unique in that this case is not about the denial of a first request for an LOA without pay. Rather, it is about the denial of an extension to an LOA where there had been many extensions granted, with the result that an educational LOA had been in effect for many years starting in October 2011, with the final approval having an end date of November 15, 2018. It is not surprising that Ms. Sookdeosingh may have expected in these circumstances that her LOA would continue until she had completed her PhD program. However, as Employer counsel noted, the Employer never indicated that her LOA without pay would last for a specific length of time. The fact that the LOA was reviewed on a regular basis suggests that there was always the possibility that it might not be renewed and that a renewal was dependant on the circumstances at the time a request to extend was made. Just as the number of extensions created expectations for Ms. Sookdeosingh, it appears that the length of time she was on her LOA resulted in increasing issues in the workplace. - 10 - Although the circumstances here are unique, there was no suggestion that the usual principles that govern the assessment of the exercise of managerial discretion did not apply in this case. [19] In assessing whether the Employer properly exercised its discretion under article 24 of the Collective Agreement, I have considered the contents of the letter from the ADM dated November 29, 2018, denying Ms. Sookdeosingh’s request for an extension, and the testimony of Ms. Fernandes, which served to flesh out the basis for why the Employer denied Ms. Sookdeosingh’s request for another extension. I am satisfied that the primary reason the Employer had for denying the last request for an extension was the detrimental impact the lengthy LOA had on the workplace as described by Ms. Fernandes. In essence, the backfilling of Ms. Sookdeosingh’s position with FXT’s over the years, who were unable to attain permanent status, resulted in continuing costs for the Employer and morale issues at the Yonge Street P & P office. In considering Ms. Sookdeosingh’s last request for a further extension, the Employer determined that the increasing detrimental impact that the LOA had created at the workplace by November of 2018 was such that it was not prepared to extend the LOA for an additional year. [20] The evidence before me supports the conclusion that the Employer’s decision to deny a further extension to Ms. Sookdeosingh’s LOA was made in good faith and without discrimination. The Employer considered the merits of the last request for an extension of the LOA and it considered all relevant factors. I am also satisfied that the Employer’s decision was based on a genuine exercise of discretionary power, as opposed to rigid policy adherence. It is obvious from these conclusions that I did not find persuasive the Union’s submissions to the effect that the denial of the last extension request was unreasonable, arbitrary and made in bad faith. [21] The Employer did not simply draw an arbitrary line for ending the LOA without a consideration of all of the circumstances. I also disagree with the submission that there was nothing different occurring in regard to Ms. Sookdeosingh’s last request from her previous requests and that her last request should be viewed as simply a request for a one year LOA. In my view, it was appropriate for the Employer to consider the last request for an extension in light of the fact that the LOA had been in place for many years. With the increasing detrimental impact of the lengthy LOA, it is not the case that there was nothing different going on when she last requested an extension when compared to her other extension requests. After considering all of the circumstances, the Employer certainly drew a line for ending the LOA. However, it was not an arbitrary line since it was drawn only after seriously considering the interests of Ms. Sookdeosingh and the impact of her absence on the workplace. The fact that the Employer relied on general impacts - 11 - on the workplace without providing more detail about those impacts does not support the conclusion that its exercise of discretionary power in this instance was unreasonable. [22] The Employer did make reference to the five-year rule in its later communications with Ms. Sookdeosingh and it did indicate when it granted two previous extensions that her leave of absence would not be extended further. I suspect that the Employer referred to these matters having regard to the increasing impact her lengthy LOA was having on the workplace. In my view, these matters do not indicate that the Employer had a closed mind when it considered Ms. Sookdeosingh’s last request for an extension. In particular, the references to the five-year rule are not a basis for concluding that the Employer’s denial of a further extension in November of 2018 was based on a rigid adherence to policy. If the Employer had been dealing with her extension requests based on a rigid adherence to the five-year rule, her LOA would have ended much earlier. In exercising its discretionary power in this instance, I am satisfied the Employer denied a further extension to the LOA only after considering the relevant circumstances as described by Ms. Fernandes. [23] As the decisions referred to previously indicated, whether the Employer was correct or had sufficient reasons to deny Ms. Sookdeosingh’s last request for an extension are not relevant considerations when reviewing the Employer’s exercise of its broad discretion under article 24 of the Collective Agreement. Whether I would have decided the issue differently is also not relevant given the recognition that the Employer is in the best position to assess the needs of the workplace. I am satisfied in this instance that the Employer properly exercised it discretion and that its decision to deny Ms. Sookdeosingh a further extension was not unreasonable in the circumstances. [24] As indicated in OPSEU (Botosh), supra, a GSB arbitrator has no jurisdiction to review the matter if the criteria for abandonment under section 42 of the PSOA have been met. Section 42 reads as follows: If a public servant appointed by the Public Service Commission is absent from work without approved leave for a period of two weeks or more, the Commission may declare, in writing, that the public servant has abandoned the position and that his or her employment by the Crown is terminated. [25] It is very clear that the criteria of section 42 have been met in this case. Ms. Sookdeosingh’s LOA ended, her request for an extension was denied and she was directed to report for work at the Yonge Street P & P office on January 21, 2019. - 12 - She elected not to report for work and was absent from work without approved leave for two weeks. As noted previously, the Employer, by letter dated February 5, 2019, declared that Ms. Sookdeosingh had abandoned her position with the Ontario Public Service and terminated her employment. More than once, the Employer had advised Ms. Sookdeosingh of the consequences of not reporting for work on January 21, 2019. [26] For the foregoing reasons, the grievances date January 16 and February 7, 2019, filed on behalf of Ms. Sookdeosingh, are hereby dismissed. Dated at Toronto, Ontario this 22nd day of March 2022. ‘Ken Petryshen” Ken Petryshen - Arbitrator