HomeMy WebLinkAboutCarrigan 11-11-20BETWEEN:
IN THE MATTER OF AN ARBITRATION
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
( "the Union ")
and
THE WAYPOINT CENTRE FOR MENTAL HEALTH CARE
( "the Employer ")
GRIEVANCE OF WAYNE CARRIGAN
( "the Grievor ")
BEFORE: Sole Arbitrator Larry Steinberg
APPEARANCES
For the Union
Richard Blair, Counsel
Martha McDonald, President, OPSEU Local 324
For the Employer
Jason Green, Counsel
Jeffrey Miller, Human Resources Consultant
Gail Scott, Program Director, Geriatric Services Program
Hearing held in Barrie Ontario on October 27, 2011
AWARD
Overview
[1] On September 7, 2010 the Grievor was very fortunate to obtain an appointment
with his medical specialist at Sunnybrook Hospital for the next day, September 8. His
request to take the day as a paid vacation day was denied; however, he was granted
the day off as an unpaid Emergency Leave.
[2] The Employer asserts that it acted appropriately in denying vacation with pay to
the Grievor because, in its opinion, operational requirements would have been
negatively affected if the vacation was granted and that it acted appropriately in giving
the Grievor the day off as unpaid Emergency Leave. For its part, the Union asserts that
the Grievor was entitled to take the day as paid vacation because the Employer denied
the Grievor's request before it had even investigated whether operational requirements
would have been affected and dictated to him that, if he wanted the day off, he must
take it as Emergency Leave.
[3] For the reasons that follow, the grievance is allowed and I declare that the
Employer violated the collective agreement by denying the Grievor his paid vacation on
September 8, 2010. 1 order that the Employer pay the Grievor his vacation entitlement
for that day and adjust his vacation and Emergency Leave credits accordingly.
Facts
[4] The Grievor and his supervisor, Gail Scott ( "Scott "), Program Director, Geriatric
Services testified. There is no material dispute on the facts.
[5] The Grievor is a psychometrist who has been employed by the Employer since
1975. He has been suffering for some time with a back problem and has been followed
by an orthopaedic specialist at Sunnybrook Hospital. He has been advised that he will
eventually require surgery in order to address his back problem.
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[6] He testified that he was off work on September 7 due to his back pain.
Notwithstanding the discomfort he was in, it was his intention to attend the monthly
clinical meeting at his work place which was scheduled for 1:00 p.m. that day.
[7] Sometime between 10:00 a.m. and 11:00 a.m. he called his specialists' office to
book an appointment because his discomfort was, in his words, "challenging ". He
expected that he would have to wait for a long time to have an appointment scheduled
and was pleasantly surprised when he was advised that due to a cancellation, he could
be seen the next day, Wednesday September 8, 2010.
[8] He testified that since he intended to be at the workplace at 1:00 p.m. for the
monthly clinical meeting, he made no effort to contact Scott to inquire about taking the
day off as a vacation day prior to attending at the workplace. It was his evidence, which
was not challenged, that Scott did not normally attend these meetings and the Grievor
therefore intended to speak with her just prior to 1:00 p.m. When the Grievor went to
Scott's office shortly before 1:00 p.m. she was not there because, as events turned out,
she was on her way to attend the monthly clinical meeting.
[9] The Grievor testified that there was not a convenient time to speak with Scott
during the afternoon and so he waited until the meeting concluded to speak with her. In
his evidence he put the time at approximately 3:30 p.m. In her evidence Scott put the
time at 3:50 p.m. or 3.55 p.m. In my view, nothing turns on this discrepancy. What is not
in dispute is that the Grievor advised Scott of his medical appointment and requested
that she approve a vacation day for him in order to attend his appointment.
[10] Scott refused to approve the day as a vacation day. However, she did advise the
Grievor that he would be entitled to take the day as an Emergency Leave day. The
Grievor testified that he was shocked and surprised by this response and that a
discussion ensued during which he attempted to persuade Scott that he was entitled to
take the day as a paid vacation and she attempted to persuade him that the situation
was in fact one covered by the Emergency Leave provisions of the collective
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agreement. Neither was successful in persuading the other. The Grievor testified that
during the discussion Scott did not refer to or rely on the fact that the operational needs
of the Employer could not be met if the Grievor took the day off as a vacation day. He
was firm in his evidence that he made his disagreement with Scott's offer of an
Emergency Leave clear to her.
[11] He further testified that it was his understanding that where a vacation was
requested on short notice it would be granted so long as the operational needs of the
Employer could be met. The Grievor testified that there was a support system in place if
someone requests a vacation on short notice (or falls ill) whereby employees will be
canvassed to determine if shifts can be switched or to see if staff from other areas can
cover for the absent employee. He acknowledged that there were legitimate operational
needs in terms of a minimum staffing complement that had to be met. He further
acknowledged that if the support system was successful in ensuring coverage the
vacation would be taken; if it was not successful then employees would not take their
requested vacation.
[12] The Grievor testified that the day he requested to take as a vacation day,
September 8, 2010, was a Wednesday. On Wednesdays he is normally scheduled to
work in the Day Clinic in the afternoon. The Day Clinic is a specialized program
available to a segment of the hospital population as well as members of the community.
It is held off the premises of the Employer at the Hero Centre in Midland. He testified
that he is one of several staff regularly assigned to the Day Clinic.
[13] The Grievor in fact did not attend at work on September 8, 2010 and, consistent
with Scott's position during their discussion, he was credited with having taken an
Emergency Leave.
[14] In cross examination, the Grievor did not dispute that Scott is responsible for
assigning two staff to the Hero Centre. He further agreed that due to the physical set up
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of the premises and the patient population who attend the Day Clinic, it would not be
safe to have only one staff member assigned to the Day Clinic.
[15] The Grievor also agreed that when he and Scott discussed the matter she would
not have known whether she could arrange to cover his absence on September 8 but
he was unshaken that his expectation was that Scott would have investigated the
possibility before refusing his request to take a day of vacation and, in fact, he stated
that he asked her to do so. The Grievor also acknowledged that he had not canvassed
other staff to see if they could cover for him and he agreed that process was part of the
protocol. When asked why he had not done so, he replied he would have done so if
taking a vacation day had been open to him as an option. However, Scott did not leave
that option open to him.
[16] The Grievor agreed that it was only fair that Scott have as much notice as
possible of requests for vacation. When pressed as to why he did not call her at 11:00
a.m. when he was aware of his appointment, he stated that since he was going to be
physically present at the Employer's premises at 1:00 p.m. he did not see the necessity
to do so. He did agree that in hindsight it might have been prudent to have called
because Scott attended the clinical monthly meeting which he had not anticipated.
Finally, the Grievor agreed that when the discussion was over he was aware that a
vacation day would not be granted if he took the day off and that an Emergency Leave
day would be granted.
[17] Scott has been employed by the Employer for 11 years. She is currently the
Program Director of the Geriatric Services Division which provides assessment and
treatment of individuals with complex mental health disorders. Patients can be more
than or less than 65 years of age depending on their need. The Division has a 26 bed
in- patient unit and as well runs the Day Clinic. She has 24 direct reports (including the
Grievor) and 50 indirect reports. She is responsible for scheduling 24 staff and she acts
as back up for the Nurse Manager for an additional 50 employees.
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[18] She testified that the Day Clinic is designed to provide services similar to those
provided to the Division's inpatients to members of the community, from other hospitals
in North Simcoe and from some other inpatient units at the Employer. However, in order
to qualify for the Day Clinic patients have to be able to participate and therefore require
a certain cognitive level. The Day Clinic is held on the premises of the Employer on
Monday, Tuesday, Thursday and Friday. On Wednesday the Clinic is held at the Hero
Centre in Midland.
[19] She explained that it is her responsibility to assign staff to the Hero Centre on
Wednesdays. She typically schedules two staff, one in the morning and one in the
afternoon and, as well, an R.N. is assigned for the full day. She was very clear that the
Day Clinic at the Hero Centre cannot be safely operated with only one staff member
(and on this point the Grievor and Union were in complete agreement) because of the
propensity for some of the patients to attempt to leave the premises. In addition,
because patients cannot be left unattended, at least two staff are required in order to
cover for breaks.
[20] Scott testified that if it was necessary for some reason to cancel the Day Clinic a
number of phone calls would have to be made to service providers and it would be
necessary to explain the reason to them. In addition, the patients would be disappointed
since they look forward to attending the Day Clinic.
[21] With respect to the Grievor, Scott testified that he is regularly assigned to the
Hero Centre on afternoons. His duties include conducting cognitive testing as needed,
providing group and individual therapy and spending time with clients. In the event that
the Grievor was is not available for his shift at the Hero Centre, Scott would attempt to
cover for him by first contacting the Day Clinic Coordinator to discuss what the needs of
the Clinic were that day (how many patients were attending and their needs). If the Day
Clinic Coordinator was not otherwise committed she would take the Grievor's shift. If
she was committed, then there are three staff that are available to her for one quarter of
their time to be assigned to the Hero Centre. If they are reassigned to the Hero Centre
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to cover for the Grievor then the work that they were scheduled to perform on that day
would have to be either reassigned or cancelled.
[22] Scott testified that the Grievor approached her at approximately 3:50 p.m. or 3:55
p.m. after the clinical meeting with his request to take a vacation day the next day,
Wednesday, September 8. She stated that prior to that time the Grievor did not speak to
her notwithstanding that she was available either by telephone at work or on her cell
phone. When she was asked if it would have been "easier" if he had contacted her
earlier with his request, she responded "absolutely ".
[23] Aside from the discrepancy regarding the time of their conversation, Scott's
recollection of her conversation with the Grievor was the same as his. What she did add
however was that she was in a hurry at the time because she had a medical
appointment to attend which was scheduled for 4:30 p.m. and therefore she could not
stay late as she typically could to deal with matters that arose at the workplace. She
also stated that when she was approached by the Grievor she had a multitude of
questions about what might happen the next day. Due to the time of day the request
was made, Scott testified that it would have been difficult for her to speak to everyone
she needed to speak to in order to determine the operational needs of the Employer.
She therefore made the decision to deny the Grievor's request to take a vacation day
due to operational requirements. However, she determined that the request fell within a
proper request for Emergency Leave and she advised the Grievor that he could take the
day off on that basis.
[24] She acknowledged that the Grievor was not happy with her decision and that he
suggested to her she had sufficient time the next morning to determine if coverage
could be arranged to replace him. Scott disagreed that she had sufficient time to make
the inquiries she needed to.
[25] Scott testified that in fact the Day Clinic did not close on September 8 because
she was able to reassign staff to cover for the Grievor's absence.
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[26] In cross examination, Scott testified that last minute requests for vacation are
granted subject to operational requirements and that there is no policy that such
requests will not be considered with less than twenty four hours notice.
[27] Scott agreed that by 9:00 a.m. on September 8 she had found coverage for the
Grievor by following her normal procedure which she described in her evidence in chief
and that it required one or two telephone calls by her to accomplish this. She also
agreed that if the Grievor had approached her on September 8 at 8:00 a.m. with the
very same request he made on September 7 she would have been able to follow the
very same procedure. She acknowledged that on September 7 she could have asked
the Grievor to determine if coverage was available for the next day but she did not.
Collective Agreement
[28] The parties referred to the following provisions of the collective agreement.
Article 1 Purpose
....It is recognized that employees, the Union and
the Hospital wish to work together to secure the
best possible care and health promotion for
patients.
Article 5 Management Rights
5.01 The Union recognizes that the management of the
operations and the direction of the employees are
fixed exclusively with the Hospital and shall remain
solely with the Hospital and without limiting the
generality of the foregoing it is the exclusive
function of the Hospital to:
(a) maintain order, discipline and efficiency;
(c) establish, alter, and enforce reasonable rules
and regulations to be observed by the employees;
provided that such rules and regulations shall not
be inconsistent with the provisions of this
Agreement;
(d) determine all work schedules, the kind and
location of equipment to be used, the location and
number of employees required from time to time,
the services to be performed, the standards of
performance of all employees, work assignments,
the hours of work and all other rights and
responsibilities of management not specifically
modified elsewhere in this Agreement;
(f) Notwithstanding the above, the Hospital shall
not exercise these rights in an arbitrary,
discriminatory or bad faith manner.
Article 8 Grievance and Arbitration
Procedure
8.13 The Arbitrator shall not be authorized to
make any decision inconsistent with the provisions
of this Agreement, nor to alter, modify, add to or
amend any part of this Agreement.
Article 19 Emergency Leave
19.01 Emergency Leave
Employees shall be entitled to up to ten (10) days
per year Emergency Leave pursuant to the
provisions of the Employment Standards Act,
2000.
Article 25 Vacation
25.04 Vacation Schedules
(c) Vacation requests submitted after the
vacation application period will be granted on a
first come first serve basis once the vacation
schedule has been posted and subject to the
efficient operation of the department.
[29] Counsel also referred in argument to the following provisions of the Employment
Standards Act, 2000, SO 2000, c 41. ( "the ESA ").
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PERSONAL EMERGENCY LEAVE
50. (1) An employee whose employer regularly employs
50 or more employees is entitled to a leave of
absence without pay because of any of the
following:
1. A personal illness, injury or medical emergency.
2. The death, illness, injury or medical emergency of
an individual described in subsection (2).
3. An urgent matter that concerns an individual
described in subsection (2).
(3) An employee who wishes to take leave under
this section shall advise his or her employer that he
or she will be doing so.
(4) If the employee must begin the leave before
advising the employer, the employee shall advise
the employer of the leave as soon as possible after
beginning it.
(5) An employee is entitled to take a total of 10
days' leave under this section in each calendar
year.
Position of the Parties
Union
[30] Counsel for the Union submitted that pursuant to the provision of Article 25.04(c)
of the collective agreement, an employee is entitled to vacation subject to the
reasonable exercise of the Employer's discretion to refuse to approve it based on
operational requirements.
[31] Counsel referred to the provisions of Article 19.01 which incorporates the
Emergency Leave provisions of the ESA into the collective agreement. He noted that
under the ESA Emergency Leave provisions an employee is entitled to the leave after
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having formed the intention to take a leave and after having advised the employer of
their wish to take the leave. In counsel's submission, the facts here do not support a
finding that the Grievor either formed the necessary intention or advised the Employer
that he was taking the leave. In counsel's submission an employer must not be
permitted to force an employee to take Emergency Leave and thus deplete the limited
number of such days available to the employee unless the provisions of the ESA are
respected.
[32] Therefore, in counsel's submission, the only determining factor as to whether
vacation ought to have been granted was operational requirements. He noted that the
evidence was that there was absolutely no adverse impact on the operational
requirements of the Employer caused by the Grievor's absence. He observed that on
the morning of September 8, Scott, by following her normal routine, managed to confirm
coverage, a fact which she should have anticipated on September 7 based on her past
experience in these situations. He further observed that while it may have been easier
to have made that determination if the Grievor had made his request earlier on
September 7, that is not a relevant consideration in view of the fact that Scott
acknowledged that if the request had first been made on the morning of September 8, it
would not have been too late.
[33] Counsel submitted that the language of Article 25.04(c) requires the Employer to
make a reasonable assessment of the objective circumstances to determine if
operational requirements can be met if a vacation request is granted. In counsel's
submission Scott failed to do so. Rather, in counsel's view, she came to the conclusion
without making any assessment of the objective likelihood of success of arranging
coverage. In fact, according to counsel, the evidence clearly indicates that Scott did not
ask the Grievor a single question related to operational requirements during their
discussion on September 7-
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[34] Counsel for the Union stressed the fact that the evidence showed that the
Employer would consider requests for vacation as late as the day the employee wished
to take the day; here the request was made sixteen hours before the Grievor wished to
be absent. And the facts show that there was in fact no operational impediment based
on the fact that Scott did manage to ensure coverage during the early part of the day on
September 8. In counsel's submission the facts here amount to Scott first denying the
Grievor's request for vacation and then investigating whether there were any
operational impediments to granting the request.
[35] What the facts do show, in counsel's submission, is that the Grievor's request
was denied because of Scott's opinion that it would have been inconvenient for her to
have made a proper investigation of operational requirements which is not a valid
consideration for an Employer to consider in exercising its discretion. In support of his
argument counsel cited Re Pinehaven Nursing Home and London and District Service
Workers' Union, Local 220 (1993) 36 L.A.C. (4th) 440 (Levinson).
[36] The Union therefore asked that the grievance be allowed, that the Grievor be
paid for a vacation day plus interest and that his Emergency Leave bank be credited
with a day.
Employer
[37] Counsel for the Employer stated that the fundamental issue is whether the
Employer is entitled to make the determination that operational requirements dictate a
denial of a request for vacation or whether arbitrators are to do it.
[38] Counsel argued that the Grievor was, in a sense, the author of his own
misfortune by not, for example, advising or attempting to advise Scott earlier of his
request. Counsel asserted that management had to have the ability to be wrong and
that on the facts in this case the Employer acted reasonably in the context of the
request.
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[39] In assessing the actions of the Employer counsel submitted that Article 5.01(f) is
relevant and sets the standard by which the actions of his client ought to be measured,
namely whether the Employer acted arbitrarily or in bad faith in denying the Grievor's
request. Alternatively, if the standard is whether the Employer acted reasonably, he
submitted that the Employer clearly did so on the facts.
[40] Counsel points to the language of Article 25.04(c) which states very clearly that a
vacation request is subordinate to the efficient operation of the department which, in
Counsel's submission, ties directly back to Article 5.01 which in his view establishes the
overarching nature of management rights on matters affecting the efficiency of the
operation of the hospital.
[41] In counsel's submission, given the timing of the request in this case, it was
impossible for Scott to have made a determination regarding the efficient operation of
the department in the time available to her on September 7, 2011. In counsel's view her
decision has to be evaluated as of the circumstances that existed at the time the
request was made and in light of what Scott knew at that time. So long as her decision
was not arbitrary, discriminatory or in bad faith, it is not the role of the Union to second
guess her decision on the basis of the facts as they turned out on September 8 nor is it
for me to substitute my decision for hers even if, as it turned out, she was wrong in her
assessment of whether coverage was possible.
[42] Counsel also asserted that when the Grievor left the workplace on September 7
he was fully aware of the fact that his request for vacation for the next day had been
denied and he knew that Emergency Leave had been granted. He had therefore a
choice. He could attend at work and file a grievance over the denial of his vacation
request or he could have taken what was granted to him.
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[43] In support of his argument counsel cited Re Toronto (City) v. Canadian Union of
Public Employees, Local 79 (Clancy Grievance) [2007] O.L.A.A. No. 452 (Nairn) ( "City
of Toronto'); Communications, Energy and Paperworkers Union of Canada, Local 90 v.
Abitibi Consolidated of Canada (Garlock Grievance) [2006] O.L.A.A. No. 336
(MacDowell) ( "Abitibi'); Re United Parcel Service of Canada Ltd. and Teamsters Union,
Local 141 [1981] O.L.A.A. No. 81; 29 L.A.0 (2d) 202 (Burkett) ( "UPS "); United Mine
Workers of America, Local 13031 v. Canadian Industries Limited, Nobel Works
(Collective Agreement) [1948] O.L.A.A. No. 5; 1 L.A.C. 234
[44] In reply, counsel for the Union pointed out that the language in Article 25.04(c) is
different than the language in the cases cited by the Employer. For example, he pointed
out that in the UPS case there was no language regarding the scheduling of vacations.
It was left entirely to the unfettered discretion of the Employer. In this case however, the
Employer's discretion is fettered in that vacation requests "will be granted... subject to
the efficient operation of the Department." In counsel's submission, if there isn't an issue
of the efficient operation of the Department, there is no discretion left for the Employer
to exercise.
[45] Counsel reacted strongly to the argument that this was akin to a "work now,
grieve later" situation in terms of the options available to the Grievor once knew his
vacation request was denied. He likened it to a situation of putting an employee who
only received half his pay in a situation of deciding whether to accept half pay and not
grieve or not accept it and grieve. He asserts that there is no rule in labour law that
requires a an employee in the situation of the Grievor to either to take what is offered by
the Employer and forgo their entitlement under the collective agreement or take nothing
and pursue the matter at arbitration.
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Decision
[46] 1 agree with counsel for the Union that the language before me in this case is
unlike the language in any of the cases cited to me by counsel for the Employer. Article
25.04(c) of this collective agreement requires that vacation requests must be honoured
( "will be granted ") subject only to "the efficient operation of the Department" (there is of
course a further condition that requests are honoured on a first come, first served basis
but that is not relevant to this case).
[47] In none of the cases cited by the Employer was a positive right of employees to
have their requests granted at issue. In City of Toronto the language stated that
"vacations will be scheduled in accordance with operational requirements ". In Abitibi the
language stated that in making vacation schedules "the management will endeavour to
meet the wishes of the individual employees" but that "the necessities of operation must
be given full consideration." Finally, as pointed out by counsel for the Union, in UPS
there was no language at all, the matter being entirely one of Employer discretion.
[48] In my view, the language of Article 25.04(c) is very clear. Since the only reason a
request for vacation can be denied is an adverse impact on the efficient operation of the
Department, the Employer is required to actually do something to ascertain what the
impact on the efficient operation of the Department would be of granting the request.
This requires the Employer to do the very things Scott did on the morning of September
8 and apparently what has typically been done in the past. To require less than that
would be to undermine the negotiated right of employees to have such requests
approved.
[49] In this case, and regardless of whether the Employer's actions are to be
measured by a reasonableness standard (as asserted by the Union) or the arbitrary,
discriminatory or bad faith standard (as asserted by the Employer), the Employer fell
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well short of its obligation. I find that on the evidence before me Scott's decision to deny
the Grievor's request was both unreasonable and arbitrary.
[50] It is true, as asserted by the Employer, that Scott did not have the information
available to her on September 7 to know whether she could grant the request. However,
It seems that the requirement to provide an answer on September 7 was self- imposed
by Scott. There is nothing in the collective agreement that demanded an answer at 4:00
p.m. that day. And neither did the Greivor demand an answer at that time. Indeed, as
Scott testified, the Grievor himself suggested to her that she could make her
determination the next morning. From a practical perspective there was ample time
available to Scott on the morning of September 8 to make the necessary inquiries and
to have advised the Grievor at that time whether his request was approved.
[51 ] Scott's evidence was that she made the decision not to grant vacation solely on
the basis that she couldn't answer the coverage issue in the few minutes available to
her before she had to leave the work place and attend to her own medical appointment.
She therefore dismissed the possibility of granting vacation out of hand. To make that
decision without making any of the usual inquiries is not only unreasonable it is
arbitrary.
[52] Counsel for Employer urged me to look only at matters as they existed on
September 7 and not to judge the Employer's decision based on what actually occurred
on September 8. However, even if I accepted that I was so restricted, the Employer's
position is not strengthened. In the Step 1 Response denying the grievance Scott, after
setting out her understanding of the facts and circumstances that would support
Emergency Leave, stated "It is also my understanding that if an absence clearly fits the
definition of emergency leave, then it is to be applied, regardless of available vacation
credits." The view that the Emergency Leave provisions of Article 19 somehow trump
the Vacation provisions in Article 25.04(c) is, if not arbitrary, certainly unreasonable (and
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wrong in my view). In fairness it should be noted that this issue was not pursued by the
Employer at the hearing but it clearly drove Scott's decision on September 7.
[53] Further insight into the Employer's approach can be seen in the Step 2
Response to the grievance. Eschewing the typical "less is more" approach to grievance
replies, it is written almost as if it was an arbitration award. What it clearly reveals is that
the Employer didn't consider the fundamental issue underlying vacation requests made
under Article 25.04(c), namely, that such requests "will be granted" subject only to the
efficient operation of the Department. The quoted words were not even referred to in the
reply and there was no attempt to articulate what efficiency issues prompted the denial
of the Grievor' request. Rather, much of the Response is an attempt to justify the
Employer's view that the Grievor's request fell within the Emergency Leave provisions
of the collective agreement and the ESA which was entirely beside the point of the
grievance. This reinforces my view that the Employer's decision was informed not by
concerns about the efficiency of the Department but rather by the Employer's view that
because the reason for the Greivor's need to be absent from work fit within the
parameters of an Emergency Leave, the Grievor's request could not also be considered
under Article 25.04(c) of the collective agreement.
[54] This approach to addressing the Grievor's request is both an unreasonable and
arbitrary exercise of the Employer's discretion under Article 25.04(c) particularly in view
of the fact that requests for vacation made under that Article "will be granted" subject to
the efficient operation of the Department.
[55] 1 agree with counsel for the Employer that arbitrators ought not to substitute their
views for those of Employers as to whether operational efficiencies support a denial of a
request for vacation. But that presupposes that the Employer has actually turned its
mind to that issue and made a decision based on a review of the facts. That,
unfortunately, did not happen in this case. Moreover, under this collective agreement,
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the arbitrator also has a responsibility is to ensure that such discretion is exercised in a
way that respects the language of Article 25.04(c) and the rights it gives to employees
to have their vacation requests approved.
[56] Finally, I agree with Union counsel that there is no labour law principle that
required the Grievor to make a choice to either accept what was offered to him
(Emergency Leave) or not to accept it, attend at work on September 8 and file a
grievance for his vacation entitlement.
Conclusion
[57] For the reasons above, I allow the grievance. I declare that the Employer was
unreasonable and arbitrary in denying the Grievor his request for vacation on
September 8, 2010. 1 order that the Employer pay the Grievor his vacation entitlement
for the day and deduct one vacation day from the Grievor's vacation entitlement. I
further order the Employer to re- credit one day to the Grievor's Emergency Leave bank.
[58] 1 remain seized to deal with any issues arising from the implementation of this
award.
Dated at Toronto this 20th day of November 2011
Larry Steinberg