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HomeMy WebLinkAboutUnion 01-09-29 C! --- -7~ /~ 1 ~ ~c~ ~-~;j {/ Cj)~y I () /0 I /'}X3 lRllE<C[E ~V[E ID OCT - 9 2001 ~. IN THE MA TIER AN ARBITRATION: BET\\'EEN --------------- THE KINGSTON GENERAL HOSPITAL (lithe EmployeI'll) AND ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 444 (the "Union") AND IN THE MATIEROF A GRIEVANCE RELATJNG TO BEREAVEMENT LEA VE Louisa M. Davie - Sole Arbitrator Appearauces: For the Employer: Carolyn Kay Aggio Bill Hunter Counsel Mauager, Employee Relations For the Union Kristin Eliot Aimee AxleI' Counsel President, Local 444 Thl:_~ lh.:;dr~ng in thi~,) InaU,\:~r \\'L~:; held in Kjng~ton on /\ugust 22) 2001 2 Award Tills arbitration revolves around the interpretation of the following clause in the collective agreement between the Kingston General Hospital (hereafter lithe Hospital" or lithe Employerll) and the Ontario Public Service Employees Union, Local 444 (hereafter lithe Union"): Leaves of Absence 14.03 Bereavement leave Any employee who notifies the Hospital as soon as possible following a bereavement will be granted bereavement leave for up to three (3) consecutive scheduled working days off without loss of regular pay for regularly scheduled hours within the seven (7) calendar day period commencing three (3) calendar days prior to the date of the funeral of the member of his immediate family. Immediate family, for the purposes oftrus section, shall mean spouse, child, parent, sister, brother, mother-in-law, father-in-law, grandparent, grandchild, brother-in-law, sister-in-law and grandparent of spouse. IlSpouse" for the purposes of bereavement leave will include a partner of the same sex. The Hospital, in its discretion, may extend such leave with or without pay. Furthermore, where an employee does not qualify under the above noted conditions, the Hospital may, nonetheless, grant a paid bereavement leave. (emphasis added) Although this is the provision of the collective agreement at issue in this proceeding, I find it convenient to also set out Article 14.01, an Article to which both Counsel referred in their submission. Article 14.01 states: 14.01 Personal Leave Written request for a personal leave of absence without pay will be considered on an individual basis by the employee's Department Head or his designate. Such requests <He to be submitted as Un III advance as 3 possible and written reply will be given. Such leave shall not be unreasonably withheld. It is the Union's position that where, pursuant to the discretion set out in the third paragraph of Article 14.03, the Hospital determines to grant bereavement leave to an employee who seeks the leave as a result of the bereavement of someone outside the "immediate famili' as defined in Article 14.03, the leave must be a paid leave. The Union asserts that although the Employer has discretion to decide whether or not to grant bereavement leave to employees who would not otherwise qualify for such leave, the Employer does not have the discretion to decide whether or not such bereavement leave is to be paid or unpaid leave. By reason of the specific language found in the fmal sentence of paragraph 3 of Article 14.03, once the discretion to grant bereavement leave is exercised, that leave must be paid leave. It is the Hospital's position that it retains the right to grant unpaid bereavement leave to employees who do not meet the conditions for paid bereavement leave because, as an example, the request relates to the bereavement of someone outside the lIimmediate family" as defined in the collective agreement. I note at the outset that the parties did not tender any evidence in this matter. Neither did they agree upon any statement offact. This arbitration therefore involves strictly the interpretation of collective agreement language in circumstances where that ll1terpretalion cannot be assessed or related to concrete events which gave rise to t he grievance. 1v10r(; pari;l~uld tl y) ;lltbough Union rnllnsel stated in her submissions 4 that the Hospital's practice is to grant only an unpaid leave to employees who request bereavement leave for blood relative., such as an aunt, uncle, cousin, niece or nepbew, there is no evidence before me to substantiate that submission. There is no evidence of a Hospital practice or rigid policy to grant only unpaid bereavement leave where the request arises as a result ofthe bereavement of someone outside the d elined "immediate family. " Neither is there any evidence ofthe factors considered by the Hospital when it exercises the discretion to grant or decline requests for paid bereavement leave in circumstances where the conditions set out in Article 14.03 are not met. As noted below, the absence of evidence or specific factual circumstances with respect to bereavement leave has impacted upon my disposition of this policy gnevance. Submissions of the Parties Union Counsel submitted that the collective agreement does not contemplate the granting of unpaid bereavement leave. Bereavement leave is a paid leave of absence either because the employee has met the conditions set out in Article 14.03 and qualifies as of right, or because the Hospital has exercised discretion to grant bereavement leave where the conditions have not been met. The collective agreement language contemplates that bereavement leave may be ext!Wded without pay, but does not contr>mplRte granting bereavement leave VJithout pay 5 Counsel for the Union argued that an examination of the collective agreement clearly indicated that the parties turned their mind to addressing whether leave, or an extension of such leave, was to be with or without pay. Where the parties intended leave to be without pay, they have demonstrated their ability to draft language to deal with those circumstances. Thus. the first sentence of the third paragraph of Article 14.03 specifically states that the Hospital, in its discretion. may extend bereavement leave "with or without pay. II Article 14.01 indicates that a personal leave of absence is IIwithout pay." It was the Union1s position that the collective agreement, read as a whole, indicated that where the parties demonstrated an intent to provide a benefit without pay, they have specifically said so. Conversely, the absence of the words IIwithout pay" from the provisions under which bereavement leave can be granted necessarily lead to the conclusion that this is not an unpaid benefit, but is intended to be a paid benefit: Union Counsel noted that it was a basic rule of construction that in interpreting the language of the collective agreement meaning and substance should be given to every provision ofthe collective agreement. Within that context Counsel argued that it was unnecessary for the parties to provide in Article 14.03 that the Employer could give an unpaid leave as that would render Article 14,01 redundant Employees already had the right to unpaid personal leave under this separate Article of collective agreement. A review the entirety of the Leaves of Absence provision indicated that the parties had ncgotiatcd and agreed-upon an additional discretionary benefit, namely paid bereavement leave, where the employee did not otherwise qunllfy llllder the conditions set out in Aliicle 6 14.03. Such an interpretation was consistent not only with the specific language of Article 14.03 which refers to the Employer's discretion to grant "a Q?id bereavement leave," but was also consistent with a purposive approach to bereavement leave. The purpose of bereavement leave is "...to provide an employee with time off without loss of pay to gather together with relatives at a time of personal tragedy for mutual comfort, to assist in making arrangements for the funeral of the deceased and for the inunediate and after care of the deceased's survivors, and to enable the employee to bear grief privately without immediate exposure to the comparative harshness of the working environment. II (see) Re Dominion Glass and United Glass and Ceramic Workers, Local 235 (1973) 4 L.AC. (2nd) 345 (Johnston)) That purpose is met were the Employer has the discretion to grant paid bereavement leave to employees who do not otherwise qualify for such leave. In this regard Counsel noted also that the discretion extends not only to whether or not to grant leave, but also to the length of leave because the collective agreement indicates leave can be granted for "Up to three days. II In the result it was the Union's position that management's right to grant bereavement leave was fettered in that it could not decide whether the bereavement leave would be paid leave or not. There was nothing in the collective agreement which permitted unpaid bereavement leave, and an explicit provision which clearly expressed the intent of the parties that bereavement leave would be paid leave. 7 Counsel for the Employer submitted that the Hospital retained the right to grant unpaid bereavement leave and that there was nothing in the collective agreement which fettered that right of management. Employer Counsel asserted that management retained all ofthe rights to direct the operations of the Hospital except to the extent those rights were fettered by specific provisions of the collective agreement. Thus the Hospital has the residual right to determine whether or not it will allow an employee to be absent from the workplace, and whether or not such absence is with or without pay, unless the collective agreement fettered that right. Employer Counsel examined the collective agreement and argued that there were three types of instances which impacted upon this residual right of management. The first instance involved circumstances were management's right was fettered by the requirement that leave must be granted, as a matter of right, where stipulated conditions were met. In those instances the parties had negotiated a specific fetter upon management's right and the Employer could not exercise any discretion as to whether the leave would be granted or not, or would be paid or unpaid leave. As examples of these types of circumstances, Counsel cited such collective agreement examples as the requirement to grant paid time off to employee members of the Central Negotiating Conunittee (Article 6.04 (b)), Health and Safety Committee representatives (Article 7.06) and the initial paragraphs of Article 14.03 which obliges the Employer to grant paid bereavement leave if certain conditions are met. 8 The second instance of a fetter on management's right to permit employees to be absent from work, with or without pay, were those circumstances where the collective agreement provided management with the discretion as to whether to grant leave or not, but the parties had negotiated specific language pursuant to which they agreed that the exercise of that discretion was subject to a standard of reasonableness. Counsel referred to Article 14.01, and its reference that I1such leave shall not be unreasonably withheld" as an example were management continued to have discretion, but the parties had negotiated an express limitation, namely reasonableness, on the exercise of that discretion. Finally, Counsel submitted that the collective agreement provided for a third category pursuant to which employees could be granted leave. In this category management retained sole discretion as to whether or not it would grant leave, and the exercise of that discretion was not subject to any limitation or standard of reasonableness. Counsel asserted that the final sentence of Article 14.03 fell within this category. Unlike Article 14.01, the final sentence of Article 14.03 explicitly states that the Hospital may grant leave, without the imposition of a standard of reasonableness. Counsel argued that the language of Article 14.03 did not compel the Employer to exercise its discretion at all. Whereas Article 14.01 required the Employer to exercise its discretion (as the only way the Employer could satisfy the contractual obligation not to unreasonably withhold the leave was through the exercise of discretion) there was nothing in the final sentence of Article j 4 03 which compelled the Hospital to act in a particular fashion. 9 Employer Counsel took the position that the Hospital maintained an unfettered right to grant bereavement leave where the collective agreement conditions for such leave were not met. That unfettered right included the discretion to determine whether the bereavement leave would be paid or not. The discretion existed not only where the request related to the bereavement of persons outside the defined "immediate family, If but also included leave request for employees who did not qualifY by reason of the time conditions found in Article 14.03 (i.e. three consecutive scheduled working days within the seven calendar day period commencing three calendar days prior to the funeral.) There could be any number of circumstances why an employee would not automatically qualify for the bereavement leave where the Hospital nonetheless could, but was not required to, exercise discretion and grant such leave. Counsel for the Employer submitted that although the last sentence of Article 14.03 referred to II paid II bereavement leave, that reference did not take away the Employer1s rights to grant unpaid bereavement leave. Specific language to grant unpaid bereavement leave was not required in order for management to retain that right. If the reference to paid bereavement leave meant that the Employer was precluded from granting unpaid leave when it exercises its discretion in circumstances where the collective agreement conditions for bereavement leave are not present, then the converse must be equally true. References in the collective agreement to grant leave without pay would then preclude the Employer for granting leave with pay. Yet, if the Hospital chose on comp<lssionate grounds to grant personal leave with pay, the Union would not say that could 1101 be done because the Employer had not reserved that right, ,HId the collectlve 10 agreement referred only to leave without pay. In both instances the words "with or without pay" were unnecessary because, in exercising discretion to grant leave, the Employer always has the discretion to grant such leave with or without pay. Thus, although Article 14.03 indicates that the Employer may grant bereavement leave with pay, the Employer also has the right grant such leave without pay. Finally, Employer Counsel argued that if the Hospital were required to grant paid bereavement leave where it exercises the discretion to grant leave to employees who do not qualify for bereavement leave under the conditions of the collective agreement, the Hospital1s decision not to grant that leave because ofthe cost involved could not be challenged. The final paragraph of Article 14.03 did not provide for any rules or restrictions on the Hospitars discretionary power to either grant or not grant the bereavement leave. Counsel submitted that the absence of any limitation or factor on the Employer's discretionary power necessarily means that an arbitrator was without jurisdiction to review the manner in which that discretionary power was exercised. In the absence of a reasonableness standard, or some other standard against which to assess the Employer's discretion, an arbitrator was without jurisdiction to review the way in which the discretionary power was exercised. In light of the language of this collective agreement, the Employds discretion was limited only in that it could not act in an arbitrary, bad faith or discriminatory manner. In reply, Union Counsel argued that the policy grievance filed raises only the issue us to whether, once exercised, the Employer's discretion extends to determining 11 whether the bereavement leave granted was paid or not. In this regard the Union maintained that the Employer's discretion was fettered by the words indicating that bereavement leave must be paid. Counsel submitted that the policy grievance did not raise, except in the most general manner, how the Employer was to exercise its discretion because the exercise of that discretion must be assessed having regard to the particular circumstances of each case. The discretion of the Employer had been left purposely broad by the parties to encompass any number of circumstances where the employee does not qualify under the conditions for bereavement leave set out in Article 14.03. With respect to the manner in which the Employer's discretion must be exercised, Union Counsel took the position that notwithstanding the absence of specific words to that effect, a reasonableness standard was implied in the Employer's exercise of discretion. Counsel emphasized however that the grievance was not about how the Employer should exercise its discretion. Instead, the only issue to be determined was, once discretion was exercised, was the bereavement leave granted to be with or without pay? In their submissions Counsel relied upon Re Calgary General Hospital and United Nurses of Alberta. Local! (1990) 16 L.AC. (4th) 14 (Elliott), Re Qu~een Elizabeth HQ_~pjt~JJ1JJ.d International Union of Operating EngincCIb Local 942 (1993) 33 L.A.c. (LJth) 273 (Shendan), Bspornjnion Giass <Hill CJlIIlt;d G1;I~~~",ijJld(:(~I,lmic;WqrkGr:.:,I-OCilj 12 235 (1973) 4 L.A.C. (2nd) 345 (Johnston), Re National Arts Centre and Public Service Alliance of Canada, Local 70291 55 L.A.C. (4th) 418 (Roach), Re St. Catharines General Hospital and Ontario Nurses' Association grievance of Donna Mook (unreported decision dated June 16, 1993 (Devlin)). Decision Notwithstanding Union Counsel's submissions to the contrary, the issue in this grievance is not solely about whether bereavement leave granted pursuant to the Employer's exercise of discretion is paid or unpaid leave. In the absence of any evidence or facts which led to the filing of the grievance, the issue raised in the grievance involves interpretation of the last sentence of the last paragraph of Article 14.03 in a very general manner. Interpretation of the language of that sentence however canlt be restricted only to that portion of the sentence which the Union has put in issue, namely is discretionary bereavement leave granted under Article 14.03 paid or unpaid leave. Interpretation of the language requires the arbitrator to look at the entire sentence, in context of both the remainder of the Article, and the collective agreement as a whole. The use of the word II may II in the fmal sentence, and the absence of any language to suggest a standard of reasonableness against which the Employer's exercise of discretion is to be measured, indicate that the Employer's discretion to grant paid bereavement leave to employees who are not entitled to such leave as of right is very broad. It would appear that the exercise of the discretion is permissive rather than mandatory. Thus, although the Employer is entitled or pcn11lttcd to grant a paid 13 bereavement leave to employees who do not qualify for bereavement leave by reason of the conditions set out in Article 14.03, the affirmation of the Employer's rights to exercise its discretion in tlus manner does not answer the more fundamental question "ls the Employer required to grant paid bereavement leave to employees not entitled to that benefit as of right, or can the Employer grant unpaid leave to employees who seek leave becuase ofa bereavement?" Yet, at the end of the day, that is the real dispute or the core issue between the parties. I note at the outset that there was no dispute between the parties that the scope of the Employer's discretion did not relate only to instances where discretionary bereavement leave was sought as a result ofthe death of a person outside the employeets "immediate family" as defined in Article 14.03. The parties agreed that the Hospital's discretion to grant bereavement leave was not limited to instances where the employee was unable to meet that particular condition. Rather, the discretion exists in any case where the employee does not satisfY any of the particular conditions for entitlement to bereavement leave set out in Article 14.03. On the very narrow question of the scope of the Employer's discretion, once exercised, I have determined that where the Employer grants discretionary bereavement leave under Article 14.03, that leave is paid leave. An examination of this collective agreement makes it clear that in several articles these parties turned their minds to the matter of whether leave mllst be with or without pay. They have demonstrated an abIlIty to dralt appropnatc ianguage to refieci rlwil llllellL yy'hClc [hcy IlIlcnd,cd lea'v'\; [" 14 be without pay, they have specifically said so, as an Article 14.01. Where the parties intended leave to be with pay, they have specifically said so, as an Articles 6.04 (b) and, 7.06. When one looks at the sentence preceding the sentence in issue it is evident that where the parties wished to extend the scope of the Hospital's discretion to include the decision as to whether the discretionary leave granted would be with or without pay, they did so in very clear terms. In that context therefore the absence of the words liar without paylt in the final sentence of Article 14,03 is critical, and leads me to conclude that the parties did not intend the scope of the Employer's discretion to extend to granting an unpaid bereavement leave. The plain and explicit words used in that sentence is Ilpaid bereavement leave. II Effect must be given to the language used by the parties. That language, interpreted in context of the entirety of the collective agreement, and in particular in context of the sentence which precedes it, indicates that the scope ofthe Employer's discretion (once it is exercised in favour of the employee's request) does not extend to giving an unpaid bereavement leave. I have already indicated that answering the very narrow issue which the Union seeks adjudicated does not answer the more critical question whether the Employer is required to grant only paid bereavement leave to employees who do not qualify for such leave as of right who nevertheless seek to be absent from the workplace due to a bereavement. Can the Employer grant unpaid leave as Employer counsel maintains? In answering that more fundamental question the language of the collective agreement is, again, instructive. As noted, lite use u[ [lie WUJ d "i1idY" lit ;Iii; 15 sentence at issue indicates the Employds discretion is broad and permissive. More significantly, "mai' clearly indicates that the Employer is not required to grant paid bereavement leave to employees who do not qualify for that leave as of right. However, the Employer may do so. Unlike Article 6.04 (b) which states the employees IIshall be paid for time lost... for attending Central Negotiations,lI or Article 7.06 which specifies that the "Employer shall pay the member" for time spent attending to specified Health and Safety Committee matters, or the first paragraph of Article 14.03 which states that employees "will be granted bereavement leave... without loss of regular pay...," the language of the final paragraph of Article 14.03 is clearly not mandatory. In effect, the permissive language ensures that, where the Employer does grant paid bereavement leave to an employee who is not entitled to paid bereavement leave as of right because of the prerequisite conditions set out in the collective agreement, the Employer does not run afoul of the Union's rights and status as the exclusive bargaining agent for the employees. In the absence of such a permissive discretionary provision, it could be argued that the Employer was acting outside the scope of the collective agreement and was engaged in dealing directly with the employee on matters covered by the collective agreement when it granted paid bereavement leave to an employee clearly not entitled to that paid leave because of the failure to meet the conditions agreed upon by the parties to the collective agreement. If, as I have found, the Employer is not required, but may grant paid bcrc:l'-/crncnt !eave to cn1ployccs ~~vho do not nlcct the conditions ~ct out in It\rtic!c 11.03, 16 the issue necessarily becomes twofold. The first issue is how, or under what circumstances, does the Employer exercise its discretion to grant paid bereavement leaye? The second question, interrelated to the first, revolves around whether the Employer's determination not to grant paid bereavement leave to employees not entitled to this benefit as of right precludes the Employer from granting unpaid leave in some other manner. With respect to the first question, it is not disputed that the exercise of the Employer's discretion cannot be arbitrary, discriminatory or made in bad faith.' I find it significant however that the paragraph at issue does not include language which establishes a standard against which the exercise of discretion must be assessed. Thus, unlike Article 14.01, there is no requirement that the leave IInot be unreasonably withheld.1I In my view, in the absence of that type of reasonableness criteria, the Employer's exercise of discretion "must be a genuine exercise of discretion in which the Hospital [turns] its minds to the merits of the individual case. Such an exercise of discretion also requires that all relevant factors be considered and all extraneous factors rejected. II (See St. Catharines General HospitaL supra, at page 5.) I find that in circumstances where the employee is not entitled to paid bereavement leave as of right, the cost to the Employer of granting the request is a relevant factor. Similarly, as the collective agreement defines the degrees of relationship which entitle an employee to paid bereavement leave as of right, the relationship of the employee to the deceased is not an extraneous or irrelevant consideration for the Elnpioycr when it exercises its discretion lU ex klld IHtid ]JC;,eaV(;iik.nt leave to Gmp!oycc~; ]7 not entitled to that type of leave as of right. Thus, it may well be that for reasons of cost, or the relationship of the employee to the deceased, the Employer determines not to do that which it is not obliged to do under the collective agreement, namely, grant paid bereavement leave. The employee who does not meet the conditions for bereavement leave negotiated by the parties is not entitled to paid bereavement leave, and although it may do so, the Employer is not compelled to grant paid bereavement leave to such employees. The question which must then be answered is whether the Employer's decision no~ to grant paid bereavement leave to employees who do not meet the criteria set out in Article 14.03 precludes the Employer from exercising its discretion to grant personal leave under Article 14.01. In this regard it is counter intuitive to fmd that where the Employer declines to grant paid bereavement leave to employees who do not meet the conditions for such leave, the Employer is prohibited from granting unpaid leave under a more general discretion or a more general provision of the collective agreement such as Article 14.01. Such a finding is illogical as it would deprive the employee of one of the benefits of the collective agreement, namely consideration for a personal leave of absence without pay. Generally, requests for a personal leave of absence can cover a broad range of circumstances. As the leave is without pay it can encompass circumstances where an employee is not entitled as of right to a paid leave. An employee who does not qualify for paid bereavement leave ought not to be precluded from receiving an unpaid personal leave 19 Employer exercises its discretion to grant bereavement leave under Article 14.03, the leave granted is paid bereavement leave. 3. Where the Employer in the exercises of its discretion determines not to grant paid bereavement leave under Article 14.03, the Employer is not precluded from granting unpaid personal leave (instead of the paid bereavement leave) pursuant to the discretion set out in Article 14.01. Dated at Mississauga this 29th day of September, 2001