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HomeMy WebLinkAbout1976-0009.Taynen.77-01-069/76 -_. -- cK0,ih-i EIGPLOYEES 4i6/,066 6426 suite 405, GRwmcE SETTLEMENT 77 BZcor Street Vest EOARD T%liONTO, Ontario. MS.5 iM2 ;. IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Mr. John E. Taynen And (Grievor) Ministry of the Attorney General (Employer) Before: D. M. Beatty - Chairman G. Griffin i Member P. A. Sigurdson - Member For the Grievor: Mr. George Richards - Ontario Public Service Employees Union For the Employer: Mr. J. Bremner - Ministry of the Attorney General Hearinq: Suite 405, 77 Bloor St. W., Toronto November 16th, 1976 -2- On October 28, 1975 Mr. J. Taynen, who is classified as a Sheriff's Officer 1 and who acts as a Process Officer, requested of his immediate Supervisor, Mrs. J. Burley, that he be allowed to take part of his 1976 vacation leave during the period commencing on January 29, 1976 and terminating on February 15, 1976. That request,which was re-affirmed in somewhat greater detail on November 4, 1975,was ultimately denied by Mrs. Burley, after she conferred with her superior Mr. Bremner,by letter dated November 19, 1975. It is that decision which,by his grievance, Mr. Taynen seeks to impugn. Essentially the circumstances giving rise to the grievance before us are not in dispute. Thus, it was Mr. Taynen's evidence that while it was the usual practice for the employees in the Process Office to take their vacations during the summer months from May until August when their volume of work usually recedes and when summer law students can be employed to cover for them, nevertheless there had been occasions in the past when both Process Officers and Support Staff in the Process Office had been allowed to take their vacation during the winter season. Accordingly it was his evidence that when a specific opportunity arose for him to take such a vacation he checked, as was the practice amongst the Sheriffs' Officers, with his fellow employees whose ferritories were immediately adjacent to his own, to inquire whether they could and would cover the special and more urgent documents, such as Notices of Motion and Subpoenas which.had to be served within a specified date, that came across his desk ., i. -3- during the period that he proposed to take his vacation. According to his evidence, which was corroborated by those employees, each of them did agree to accommodate his request and ensure that all of the special and critical documents which were required to be served in his district during his vacation were in fact properly served. Indeed it was Mr. Taynen's evidence, which was also corroborated by Messrs. Murphy and Morton,two of the Sheriff's Officers whose districts were adjacent to his own,that such a practice of covering at least the more critical documents for a fellow officer was common not only during such vacation periods, but as well when employees were off work due to illness or injury. In fact, it was Mr. Murphy's evidence that in addition to his own district, he was able to and did in fact cover another district and a half on such a basis throughout the month of September 1976. In the result it was Mr. Taynen's opinion that so covered, he could have adequately attended to the more routine documents such as writs or summons, which form the bulk of his work and which generally did not have to be served within days or weeks of their receipt, upon his return from his vacation. In fact it was his evidence that he had performed his duties in exactly that fashion in the summer of.1975 when, as a result of his being on vacation and then being assigned to other duties, these more routine and less urgent documents had been left unattended for a period of.six weeks. , 2, ;. -4- For its part, the employer did not in any way challenge any of the evidence described above. To the contrary Mrs. Burley conceded that a number of persons had, in the past, been allowed to take their vacations during. the winter months. However, it was her evidence that all such persons had been allowed to do so because of !'compassionate" reasons or because of some pre-existing arrangement that had been made by them. Moreover, it was her evidence that when Mr. Taynen applied for his vacation in the fall of 1975, the Processing Office was short two Sheriff‘s Officers from its authorized complement. Accordingly and although she admitted she did not check out the arrangements that Mr. Taynen advised her he had made with his fellow employees, she was of the view, owing to her shortage of staff and to her inability to project what the workload would be some three months hence and because, according to her the Ministry did not normally grant winter vacations, that Mr. Taynen's request for a winter vacation must be denied. Very simply it was her view given the uncertainty of her staff complement and the Ministry's inability to secure replacements while the regular staff was on vacation in the winter months that she was not in a position to grant Mr. Taynen's request. In short, and as she stated in her letter of November 19, 1975: i. ;. -5- "2. The vacation period for the Process Department is May, June, JuTuzy and August, as this is the only time replacements are availabZe. We regret being unable at this time to grant your request”. Against that description of the events and position of the parties leading up to this grievance we would note at the outset that there was a substantial difference between the parties as to the proper standard against which the employer's decision to refuse Mr. Taynen the vacation period he requested should be measured. On the one hand it was the position of the union that measured against a standard of reasonableness or against the directions contained in a Memorandum of Understanding dated May 11, 1973, between "The Management of the Ministry of Attorney General, University Avenue (Sheriff's Officers) . . . . and the employees of Ministry of Attorney General, University Avenue (Sheriff's Officers) . . . Branch No. 001-04-53 of the C.S.A.O.", the employers decision was manifestly defective. Conversely and arguing that pursuant to s.21(6)(c) of The Regulations promulgated under s.29 of The Public Service Act, the Deputy Minister had an unfettered discretion in the matter of scheduling vacations, it was the employer's contention that there was no basis on which such a decision could be successfully challenged. In the particular 'circumstances of Mr. Taynen's grievance we do not feel it necessary, and without the benefit of exhaustive argument we do not feel it wise, to determinatively.settle which of the above standards is the proper benchmark against which the decision to refuse Mr. Taynen his requested vacation should be measured. Clearly, and to the extent one accepted the employer's assertion that the Deputy Minister has a complete and unfettered discretion'in the matter of scheduling vacations, Mr. Taynen's grievance would be bound to,fail. In addition, however, even if for purposes of argument, one assessed the propriety of the decision to refuse Mr; Taynen's request for a vacation on the standards advanced by the union, we do not believe, for the reasons that follow, that Mr. Taynen would be entitled to the relief which he seeks. However, in the latter circumstance, we wish to note that we do concur with the union's position that measured against a standard of reasonableness, (which we will do for the purposes of argument only and not because we have determined it to be the proper standard), one is constrained to conclude that the employer's decision, as it is reflected in Mrs. Burley's letter of November 19, 1975, is deficient. In the first place, and against the evidence of the grievor and his fellow employees we are simply not satisfied that Mr. Taynen's absence, during the period in question, would have seriously or materially prejudiced the employer's operations given the arrangements he had made with his fellow employees to cover the most critical aspects of his work. Indeed, given that at the eleventh hour the employer ultimately offered to change its position and allow the grievor to take his vacation as he originally had requested, it can cogently be argued that the employer in fact conceded that its operations would not have been seriously prejudiced by the grievor's absence. Moreover, as noted above, it was the evidence of Mr. Taynen and his *, . . -7- fellow employees that during such periods when employees were on vacation or absent due to illness, even for periods of up to three weeks, they were able, by instituting similar arrangements, to at least cover that person's critical work, and to ensure that the work of Process Office continued unimpeded. Very simply and as described by Mr. Murphy, in such circumstances, one simply "hustled" as he did throughout the month of this past September. Indeed the fact that the employer conceded that it had, for whatever reasons, allowed certain employees, such as Mr. Murphy, to take a winter vacation without offering any evidence as to the detrimental or adverse impact that such vacations had on its operations, is we believe, direct and positive confirmation of the testimony proffered by and on behalf of the griever that'the~remaining Process Officers were able to cover off the additional work during such periods. In sum, and at the very least, against that evidence, if, as her testimony and letter of November 19 would suggest, it was because of the potential adverse effect the grievor's absence would have on the employer's ability to cover the work load in its district surely, on any standard of reasonableness she should have made the necessary inquiries as to the adequacy and efficacy of the arrangements that had been made by Mr. Taynen to cover off his work, or at least the critical aspects of it, during his proposed vacation period. In addition and apart from that deficiency, we would also concur in the union's assertion that (and again for purposes of argument assuming it to be a proper standard) Mrs. Burley's decision may also be impugned on the ground that it failed to conform with the specific and substantive policies which were ,.> 2% -8 - embraced in the Memorandum of Understanding noted above in which it was agreed, inter alia, that: 1. 2. 3. Sheriff’s Officers,, Process Department, will be free to take annual vacations at any time during the vacation year, subject to their Supervisor's prior approval. During the swmer period, When student temporary heZp is avaizabte, Officers may take their vacation to the extent that there is one student available to rep&e one Officer who is auay on vacation. During those times of the year when student temporary help is not available then Officers my take vacations providing that there are Officers available to sufficiently cover the work area of those Officers away on vacation. Management undertakes to see that the Judicial District is covered at these times. From that document, and assuming it to be a valid and binding agreement between the parties, it is readily apparent not only that the parties to that agreement anticipated that the Sheriff's Officers in the Process Department were free to take, their vacations at any time of the year, including the winter season, but as well that if an employee chose to take a vacation in that latter period he should, so far as other officers are available to sufficiently cover the district of that officer, be allowed to do so. Again then, to the extent Mrs. Burley failed to even inquire of the adequacy of the arrangements made by Mr. Taynen to have his work "sufficiently" covered by his fellow officers, her decision must of necessity be flawed. Indeed and to.the extent that her decision was premised on her belief,, which is manifested both in her evidence before this Board and in her letter of November 19, that "The vacation period . . . . . is May, June, July and August as this is the only time replacements cr. ~. - 9- are available", her decision not to allow Mr. Taynen to take his vacation as he requested is in direct conflict with and would undermine the express provisions of the Memorandum of Understanding noted above. So analysed, and on either of the standards proposed by the union, it would follow that the,employer had improperly denied Mr. Taynen's application for his vacation during the period from January 29, 1976 until February 15, 1976. Indeed, Mr. Bremner, for the employer, noted to this Board that the present staffing arrangements in, and use of "fee for service" personnel by the Ministry were now such that similar occurrences will not likely be repeated and that Sheriff's Officers, such as Mr. Taynen, who are employed in the Process Office will be entitled, in similar circumstances, to claim a winter vacation. However, and even assuming the propriety of this analysis, we do not believe in the particular circumstances of this case that we would be warranted in going beyond making such a declaration. In the first place, and as the union itself expressly recognized, given the date on which this grievance came before us, this Board cannot make the grievor whole by requiring the employer to grant him the specific vacation period that he requested. Moreover, and in the circumstances of this particular grievance, we would not, even on such a finding, be inclined to award, as the grievor requested, financial damages equivalent to twelve days vacation pay over and above the regular to which he is still entitled at some point in the future. In the first place, for this Board 5. . .I - 10. - to accede to such a request would result in the griever's being compensated in a manner which would put him in a better position than he would have been in had the agreement, as described above, been adhered to. Such a result would, in short, offend against one of the most basic and fundamental principles of contract damages which has universally been regarded by arbitrators as binding.upon them.' Thus, as articulated by one arbitrator: ‘The purpose of damages for breach of contract is not to punish, but to compensate and the function of compensation is to pluce the aggrieved party in a monetary position as near as possibZe to that in which he would have been had the contract been perfomed”. Re: Canadian Johns-ManvilZe Co. Ltd. (19711 22 L.A.C. 396 (Weilerl Moreover, and as a corollary to this governing principle, arbitrators have generally recognized that they do not, in the usual circumstances, possess the authority to assess punitive damages Re: Polymer Corporation Ltd. (13591 10 L.A.C. 51, 57 (Laskinl, Re: Maritime Employers Association (19751 10 L.A.C. (2dl 255 (Christie), nor to award compensation for general hurt feelings or loss of reputation which may flow from a breach of the collective agreement. Re: Canadian Pacific Railway Co. 119641 15 L.A.C. 160 (Laskinl. In addition and even on the analysis and conclusions articulated above, this Board would not be disposed to compensate the grievor for certain losses he may have incurred as a result of his agreeing to drive his friends to their vacation even after he had been advised by his employer that he would not be permitted to take his vacation as requested. To the contrary, and to allow il * .5 - ll- the grievor to continue with his plans to drive his friends to their vacation after he was advised his request was denied would be to allow him to create and inflate his losses in direct contravention of his duty to mitigate his losses. Re: VUZCUTI Containers (Canada) Ltd. 119701 21 L.A.C. 167 hr&rbiel, Re: Canad& SaZt Company Ltd. 11974) 7 L.A.C. (2d) 187 IFerguson). In short, and upon being apprised of the employer's decision, and however aggrieved he felt himself to be, it was the grievor's duty at that point to dissociate himself from his vacation plans and to divert himself rather than confirm any obligations he may have incurred on the assumption that he would be allowed to take his planned vacation. Accordingly and in the result, we do not believe that even accepting the validity of the analysis advanced by the union, (which have for purposes of argument only) that Mr. Taynen has proved or is entitled to recover for any compensable losses flowing from the employer's decision. In addition, and because we note,the employer's assurance that such an issue is unlikely to recur in the future, we do not feel it would be appropriate for us to go beyond the remarks we have made with respect to the manner in which the employer denied Mr. Taynen's request and to affirmatively resolve the question of which of the competing standards advanced by the parties is the proper benchmark against which the employer's decision should be measured. Dated at Toronto this 6th day of January 1977. 0. M. Beatty Chairman I co?zcuP G. Griffin Member I concur P. A Member Sigurdson