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HomeMy WebLinkAboutCator 09-11-23IN THE MATTER OF AN ARBITRATION BETWEEN: Sheridan College of Applied Arts and Technology, Employer, - and - Ontario Public Service Employees Union, Union BEFORE: Michael Bendel, Chair Sherril Murray, Union nominee Michael Riddell, Employer nominee APPEARANCES: For the Union: Mary Anne Kuntz, Senior Grievance Officer Jay Jackson, Local 245 Mary Cator, grievor For the Employer: Brenda Bowlby, Counsel Megan Essex, Manager, Labour Relations Natalia Raguz, Human Resources Associate Susan Collard, Manager Records, Registration & Scheduling Heard in Oakville, Ontario, on October 28, 2009. - 2 - ARBITRAL AWARD I In her grievance, Mary Cator, a Registration Records Specialist in the Registrar’s Office, claims that the employer violated the collective agreement by denying her request for leave without loss of pay for one day under Article 12.2 of the collective agreement for the purpose of attending a medical appointment of her own and accompanying her father to a medical appointment of his. The relevant provisions of the collective agreement are these: 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. II The facts are not in dispute. - 3 - The grievor, who had been employed by the employer for some 20 years, was scheduled to have a procedure performed on her at a local hospital at 10:15 a.m. on February 12, 2009. The appointment had been made in November 2008. Her normal hours of work were 8:30 a.m. to 4:30 p.m. It so happened that the same day her father, aged 85, had an appointment at a different local hospital, scheduled for the morning. At the grievor’s request, her father switched his appointment to that afternoon, at either 3:00 or 3:30. On February 10, the grievor sent her manager, Ms. Susan Collard, the following e-mail: Hi Susan Just to let you know that on Thursday Feb 12, I have an appt at Jo Brant Hospital at 10 am for a test with a specialist. Then at 2:30 in the afternoon I need to accompany my dad to see the kidney specialist at Oakville Trafalgar Hospital. I would like to request that this day be considered as 12.2 Personal Leave with pay. Regards Mary Following a meeting with the grievor on February 11, Ms. Collard wrote to her on February 13 to deny her request for leave with pay on the ground that her planned absence did not result from “extenuating personal circumstances”. Ms. Collard offered the grievor the possibility of taking leave without pay, under Article 12.1, using some vacation leave, or using lieu time, none of which was acceptable to the grievor. The grievor testified that she had two siblings. One lived in Hamilton, but did not drive and was not capable of helping care for their father. The other, who lived in Kitchener, shouldered some of the responsibility for looking after their father. The sister in Kitchener was employed full time as a Payroll Clerk and could take time off work at some points in the payroll cycle, but not at others. The two of them would - 4 - discuss which of them could more conveniently take time off work to accompany their father. The father, who lived alone in Burlington and drove a car, had various health issues, including a hearing impairment. As a result of his hearing problems, the grievor testified, it was often difficult for him to understand advice or instructions given to him by his doctors, and he had to be accompanied to medical appointments. Her father had a lot of medical appointments. On previous occasions when she had had to go with her father to medical appointments, the grievor had taken vacation leave, or had “made up the time”, with the employer’s agreement, by working some extra hours after the fact, or had been granted paid leave under Article 12.2. She had been granted paid leave under Article 12.2 a couple of times, she testified. Since both she and her father had appoint- ments on February 12, the grievor decided to apply for leave under Article 12.2. She felt that it would be less disruptive for the employer if she took off one day, rather than two half-days. Ms. Collard testified that her employees often worked extra hours to make up time lost as a result of attending medical appointments. Sometimes, this was before the appointment, sometimes after. She regarded this as taking “lieu time” which the employee earned by working overtime. III Ms. Kuntz, on behalf of the union, noted that the two appointments scheduled for February 12 were with specialists. Neither the grievor nor her father had much control over their timing, although the grievor did take the initiative in having her father’s appointment re-scheduled for the afternoon of February 12 in the belief that it would be less disruptive for the employer if she took off one day rather than two half- days. The appointments could not have been scheduled for outside of the grievor’s working hours. They - 5 - were not routine medical appointments, but were with specialists. The grievor had not made a practice of taking leave under Article 12.2 for medical appointments, although she had done so on at least a couple of earlier occasions. The grievor’s absence on February 12 should be regarded as resulting from “extenuating personal circumstances”. The grievor had acted reasonably and responsibly. It was not a matter of choice, but of necessity, for the grievor to attend the two appointments. It was not reasonable for the employer to expect employees in such circumstances to work extra hours, either before or after the fact, to make up for the work time lost. In the course of her submissions, Ms. Kuntz referred to Re Centennial College and Ontario Public Service Employees Union (unreported award of arbitrator Bendel, dated May 14, 2007), Re Confederation College and Ontario Public Service Employees Union (unreported award of arbitrator O’Shea, dated August 11, 1982), Re Loyalist College and Ontario Public Service Employees Union (unre- ported award of arbitrator Kruger, dated September 16, 1996), Re Georgian College and Ontario Public Service Employees Union (unreported award of arbitrator Saltman, dated April 6, 2001), Seneca College and Ontario Public Service Employees Union (unreported award of arbitrator Thorne, dated July 11, 2002), Re St. Clair College and Ontario Public Service Employees Union (unreported award of arbitrator Brent, dated May 15, 1985), and Re Fanshawe College and Ontario Public Service Employees Union (unreported award of arbitrator MacDowell, dated September 3, 1992). Ms. Bowlby, on behalf of the employer, drew attention to the differences between Articles 12.1 and 12.2. The employer accepted that it was legitimate for the grievor to be absent from work on February 12, but did not accept that the circumstances came within Article 12.2. The arbitration board should not lose sight of the basic principle that employees are entitled to be paid for work they perform. Payment for days when no work is performed was the exception. It would be wrong for the arbitration board to substitute its own view of whether the leave should have been granted for that of the employer if the latter’s view was reasonable. The employer had exercised its discretion reasonably. In addition, the grievor - 6 - had alternatives to taking leave under Article 12.2, in that she could have arranged for her sister to accom- pany her father, or she could have made up the time by working extra hours either before or after February 12. It was not uncommon, according to counsel, for employees who are “baby-boomers” to have elderly parents to look after, and it was not realistic to interpret “extenuating personal circumstances” as covering such situations. The grievor’s circumstances were not so compelling as to make the employer’s decision unreasonable. In addition to discussing several of the cases relied on by the union, Ms. Bowlby referred to Re Fanshawe College and Ontario Public Service Employees Union (unreported award of arbitrator O’Neill, dated February 15, 2006), Re Centennial College and Ontario Public Service Employees Union (unreported award of arbitrator Simmons, dated February 14, 2007), and Re Centennial College and Ontario Public Service Employees Union (unreported award of arbitrator MacDowell, dated June 18, 2008). IV In his award of June 18, 2008, Re Centennial College, supra, arbitrator MacDowell conducted the most extensive analysis to date of Article 12.2, including a review of all the case-law relating to its interpretation. That, too, was a case where the grievor had been denied leave with pay for the purpose of attending a medical appointment. It is not necessary for us to examine the award in detail. However, there are certain principles, recognized by the earlier cases and endorsed by arbitrator MacDowell, that appear to be relevant to the present grievance. In the first place, arbitrator MacDowell made several comments on the meaning of the expression “extenuating personal circumstances”, the presence of which gives rise to the possibility of leave with pay under Article 12.2. At page 23 of his award, he wrote that “[t]he use of the word ‘extenuating’ seems to be an attempt to capture something that is extraordinary or unforeseeable, or beyond the individ- - 7 - ual’s personal control”. Later, at page 42, he wrote that “in order to come within the ambit of Article 12.2, there must be some unusual set of facts, beyond the employee’s control, and not commonly associated with the vagaries and travails of ordinary life.” Secondly, arbitrator MacDowell held that Article 12.2 contained within it the notion that an employee requesting leave without loss of pay had a responsibility to see whether there existed some reasonable accommodation between his or her desire for the leave and the employer’s understandable reluctance to pay wages for time not worked. (In particular, he referred to the opening words of Article 12.2, which state that “[r]ecognizing the overriding responsibility to the students, leave of absence will be sched- uled where possible to ensure a minimum of disruption to the educational programs and services of the college”.) At page 22, he wrote the following: There is an obligation on the applicant employee to make all reasonable efforts (i.e. “…will be scheduled where possible…”) to schedule the time off in a way that will not collide with his/her work responsibilities; and there is also a requirement to give “reasonable notice” to the supervisor concerned. Both of these requirements put an onus on the employee to consider the needs of the College; and, as a practical matter, they may also require the employee to engage in a dialogue with his/her supervisor in order to explore the possibilities – which is to say: with respect to notice, scheduling, minimizing disruption, and so on. Later, starting at page 47, arbitrator MacDowell commented on the facts of the case before him and, in particular, on whether it was legitimate for the grievor’s supervisor to have taken into account various possi- bilities that could have obviated the need for leave under Article 12.2: In our opinion, it was not improper or unreasonable for [the supervisor] to take into account the possibility of rescheduling the appointment, or modifying the Grievor’s hours, or to ask whether the Grievor had considered these alternatives. Indeed, in our view, an employee is already obliged to do that under the first sentence of Article 12.2. Nor was it wrong for [the supervisor] to take into account whether that seemed to have been done – or at least considered – in this instance. - 8 - It seems to us that if there is a duty on the employer to consider all the relevant facts – as the cases say there is – then there is a concomitant duty on the part of the employee to take into account the employer’s interests, and to make an effort to schedule appointments in a way that will not engage Article 12.2… … The Union’s position seems to be that the Grievor was entitled to make an appointment unilaterally, without any discussion with her supervisor, without exploring any alternatives with the doctor, with- out considering any alternative work scheduling arrangements that might have minimized the disruption or avoided the wage loss altogether, and without even advising her supervisor of any of the extenuating circumstances that are now said to exist; and the Employer must simply ratify that choice, and provide both the time off and indemnification for lost wages. There is no need for any dialogue or balancing of interests – even when there is lots of time to discuss the options. The suggestion seems to be (to put the matter colloquially): that the duty of reasonable consideration is a “one way street”. However in our view, that is to treat Article 12.2 as an entitlement, which it clearly is not… We respectfully endorse arbitrator MacDowell’s analysis. In light of this analysis, we have concluded that, essentially for two reasons, the grievance must be dismissed. In the first place, we do not accept that the medical appointments were “extraordinary or unforeseeable” or some “unusual set of facts, beyond the employee’s control, and not commonly associated with the vagaries and travails of ordinary life” (to quote arbitrator MacDowell). We do not deny that employ- ees may have little control over the timing of medical appointments, particularly appointments with special- ists, but such appointments are not “extraordinary or unforeseeable” and are “commonly associated with the vagaries and travails of ordinary life”. It can be confidently predicted that, sooner or later, most employees will encounter some health issues that require medical appointments. We are not persuaded that the parties intended, through the use of the language they included in Article 12.2, that the employer would be respon- sible for employees’ wages for time not worked when they attend routine medical appointments. We make - 9 - no distinction, in this regard, between an employee’s own medical appointments and those of family members for whose care the employee is responsible. We should add that a medical appointment does not cease to be routine, in our view, just because it is with a specialist. Secondly, we note that there is a well established practice at the grievor’s workplace of employees working extra hours to make up time lost as a result of attending medical appointments. We see this as an example of the sort of accommodation to which arbitrator MacDowell referred in the passage just quoted. In cases like the present, grievors are claiming, explicitly or implicitly, that they would have preferred to schedule the medical appointment for outside of normal working hours, but that no such appointment was available. If it had been available, the grievors would say, they would have worked their normal hours and then gone to the doctor’s outside of working hours, which would have involved no loss of pay for them and no payment by the employer of wages for time not worked. It would appear to us that if appointments cannot be booked for outside of employees’ normal working hours, the next best thing is for the employees to make up the time. This would lead to no loss of pay for them and no payment by the employer of wages for time not worked. Generally speaking, it would require the employees to devote no more time to the combined activities of work and attendance at the doctors’ appointments than would have been the case if the appointments had been outside of normal working hours. Although the grievor had previously “made up the time” in order to attend medical appoint- ments, she did not give consideration to doing so in February 2009. No explanation was given by her for this. There was nothing to suggest that the employer would not have approved such an accommodation. It therefore appears to us that to allow this grievance would be tantamount to relieving employees from having - 10 - to consider ways of minimizing the impact on the employer of their absences due to medical appointments. This would be the wrong message to send to employees. For the above reasons, the grievance is hereby dismissed. DATED at Thornhill, Ontario, this 23rd day of November 2009. _____________ Michael Bendel, Chair I concur/I dissent ________________ Sherril Murray, Union Nominee I concur/I dissent ______________ Michael Riddell, Employer Nominee