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HomeMy WebLinkAbout1978-0211.Stewart.81-02-09Between: -- Before: IN'THE MATTER OFAN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Ms. Jean E. Stewart And The Crown in Right of Ontario Ministry of Transportation & Comnunications Prof. K. Swi?ton Mr. A. Reistetter Mr. F. Collom Vice Chairman Member Member For the Grievor: Mrs. L; Stevens, Grievance Officer Ontario Public Service Employees Union For the Employer: Mr. N. Pettifor Ministry of Transportation & Connnunications Hearing: December 9th, 1980 Suite 2100 180,Dundas Street West Toronto, Ontario M5G 128. -2- The grievor, Mrs. Jean Stewart, claims that she has been unjustly denied a leave of absence under Article 16.1 of the collective agreement (Exhibit 1). That clause deals with special and compassionate leave and, at the time of the grievance, read as follows: 16.1 A Deputy Minister or his designee may grant an employee leave of absence with pay for not more than three (3) days in a year up+ special or compassionate grounds. The grievor works as a Clerk 3 with the Ministry of Tran- sportation and Communications in Bancroft. She is a single parent with two children and on October 27, 1978,~ she requested special leave of absence under Article 16.1 for the dates, of January 8 and 9, 1979. The reason for her request was to allow her to be with her four year old son during a tonsillectomy operation scheduled for those dates in Peterborough. She felt that it was important for someone to be with the child during the hospital stay, and no one else was available. The request for leave was denied on the grounds that the grievor had vacation credits available. The grievor, therefore, took one and a half dayof her vacation to be with her son. Mrs. Stewart testified that she had plans for her vacation, which were disrupted by the denial of leave. These plans were not specified and do not appear to have been firmly set, as she testified (and as the supervisor's notation on her request indicated) that vacation dates were not yet finalized at the time of her request. Mrs. Stevens argued on the grievor's behalf that the grievor was unreasonably denied leave of absence in the circumstances of the case. It was her submission that the employer looked only to the .existence of vacation credits and based its denial solely on the avail- ability of such credits. This was unreasonable on the employer's part, she submitted, as the employee, having earned vacation credits, has ,;. .:.. the sole right to decide what he or stielwishes todd::with this vacation time. Mr. Pettifor, for the employer, argued that the employer \ acted reasonably and in compliance with a longstanding policy set out in a series of guidelines pertaining to discretionary leave found in the government's Manual of Administration (Exhibit 7 to 111. Pursuant to that Manual, special or compassionate leave was generally to be denied when the grievor had vacation credits (see Exhibits 9 and 10, dated August 21 and December, 1978). As well, he submitted that a request in October, 1978 pertaining to leave in January, 1979 showed that the purpose of the leave was not to deal with an unfore- seen personal emergency. The policy of the Ministry had been to grant leave under Article 16.1 fonreligious holidays or unforeseen personal or family emergencies. .Both parties referred to the case of EZesie and the MGstq of HeaZth, 24/79, which also dealt wfth the denial of compassionate leave under Article 16.1 of the collective agreement. The Board there found that the employer unreasonably denied the griever's request for leave to nurse an injured relative, even though she had vacation available and already scheduled for part of the period for which she sought compassionate leave. ) -4- The Elesie case did not focus on the presence or absence of vacation credits, and the grievor in this case would have us extend the holding in Elesie. The reason for upholding the grievance ' in Elesie was the employer's failure to apply its criteria for grant- ing compassionate leave reasonably, in that the supervisor erred in finding that the grievor's circumstances did not constitute an emergency situation. In addition, the award stated that the em- ployer's criteria for the granting of compassionate leave were un- necessarily narrow, since the focus was unforeseen personal emergen- cies, while there might well be events which-are foreseeable, but which still constitute grounds for granting compassionate leave. In Elesie, the fact that the grievor had vacation credits available to her was not relevant to the disposition of the case, as the grievor there might well have prolonged her stay with her daughter- in-law had leave been granted as requested. The circumstances in the present case are quite different. There is no doubt that the grfevor's circumstances were deserving of sympathetic treatment. However, that alone does not trigger .the compassionate leeve provision in the collective agreement. The grievor requested leave for dates several weeks'away, and she had ,. vacation credits available which would allow her to accompany her son to the hospital. Her employer did not deny her request for time off, and was'qufte prepared to let her have the time off and to.have 'her use, her.vacation credits. ; '0 5- In several cases before panels of this Board, we have stated that the employer, in exercising its apparently broad discretion under Article 16.1, or the general leave provisions, must not act arbitrarily, discriminato~rily, or unreasonably in granting.,or denying leave (EZesie, above; Young ad tinis~ of comm~ni& and SociaZ Services, 220/79; FigZiaiu'ad Ministz-z'of .Tmnsportution and Commmications, 19/80). It was argued, on the grievor's behalf, that an employee earns vacation credits, and those credits should be left to the discretion of the employee as to method of disposition. Therefore, an employer should not require the employee to use vacation credits in compassionate circumstances, and in refusing compassionateleave on the ground that vacation credits were available, the employer acted unreasonably. In assessing the weight of the grievor's argument, it is important to consider the purpose of a compassionate leave article, as well as expectations with regard to compassionate leave which appear to have existed in the public service and in other employment settings. Compassionate leave provisions are included in a collective agreement in order to protect an employee confronted by personal emergencies or crises, who needs time off to deal with these personal problems. In an industrial setting, it is commonplace for the collec- tive agreement to permit compassionate leave, but without pay. In contrast, the collective agreement in the present case provides for compassionate.leave with,pay. Where compassionate leave may be granted without pay,:it is no doubt beneficial for an employee when his or her employer permits the employee to use vacation credits-for the leave period, rather -6- than to grant compassionate leave without pay. Such a decision would surely not be regarded as unreasonable. This option may not always be open, for.in some cases, as in plants with an annual shut- down period for vacation, it may not be possible to give the employee the opportunity to use vacation credits, even if granted the corn- passionate leave. Therefore, he or she may be granted compassionate leave despite the existence of vacation credits - but without pay. The collective agreement between OPSEU and the Ontario govern- ment is unusual in that it provides for compassionate leave with pay. This raises the question whether the employer acts unreasonably in considering the existence of vacation credits. For reasons which follow, we are not prepared to find that this payment provision has the effect of making the employer's action unreasonable, if the em- ployer looks to the existence of vacation credits when the employee seeks such leave. The issue for the employer is whether the enployee is deserving of leave to deal with compassionate or special circum- stances. In a case like the present, the employee has vacation available and there is not disruption of established vacation.plans if leave'under Article 16.1 is refused. If the grievor is .allowed to schedule her vacation to coincide with the dates for which leave is sought, she can be with her son, and there is no need to resort to Article 16.1. In interpreting Article 16.1, we would assume that the parties, when drafting the collective agreement, were aware of the general practice in industrial settings with regard to compassionate leave, where employers often allow or require the employee to use vacation credits, rather than grant compassionate leave. As well, the parties must have been aware of the practice in the Ontario government, in which compassionate leave was generally denied if vacation credits . . .i -7- were available. If the parties wished to change these expectations 1 t and to limit the discretion of the employer to consider the existence' of vacation credits in compassionate leave situations, they would have to do so by clearer language than is found in Article 16.1. Mr. Pettffor did, in fact, point to language in a collective agreement subsequent to that in which Article 16.1 is found. Article 54.2 of the present collective agreement (signed July 16,‘1980 - Ezhibit~61 expressly states that granting of compassionate leave "Shall not be dependent upon OF charged against accwmclated credits." He argued that the absence of such clause in earlier agreements vin- dicated the employer in looking to vacation credits before granting compassionate leave. The existence of Article 54.2 in the subsequent agreement is not conclusive evidence that vacation credits were a relevant consi- deration for management in an earlier agreement. It might well be a~rgued for the union that Article 54.2 is included for cautionary reasons, to clarify and settle's possible point 01' dispute in earlier collective agreements which had not yet been resolved by arbitration. Therefore, the inferences to be drawn from the inclusion of Article 54.2 in the collective agreement are ambiguous. However, looking at Article 16.1 in the broader industrial context and in the light of the understanding which must have grown out of past government policy with regard to compassionate leave, we are not prepared to say that management acts unreasonably when it looks to the existence of vacation credits in deciding whether to grant compassionate leave. Furthermore, in this particular case,.it did not act unreasonably in denying compassionate leave to the grievor when she had vacation Credits existing and no fixed plans for vacation : : -8- at the time, such as a charter flight already paid for. The grievor was given time off to be with her son, even though her / vacation was somewhat shortened, and therefore, her request for leave-was not unreasonably denied. Therefore, the grievance is dismissed. ;:” -,:;., Dated,~at Toronto this 9th day of February, 1981.. "I concur" Rr.. A. Reistetter Member "I dissent" r. . Collom Member i -, \ i, -9- I dissent. If the employer wishes to confer a benefit upon the employee and does not make such a benefit conditional but, rather, discretionary then I fail to see why the accumulation-of one benefit (vacation) should . determlne whether an employee can exercise her rights.under Article'l6.1. Unless the express language of Article 16.1 were to provide 'the conditions under which compassionate or special leave were to be granted, I do not see how it is possible to read such an understanding into this article. The Article simply turns on the discretionary powers of the Deputy Minister or his designee to grant the leave or not to grant the leave. To argue that the request for leave was not for compassionate reasons is to give the word a meaning that connotes a time frame. It would appear that the employee in this instance has made a "mistake" in requesting leave well in advance of the circumstances that might otherwise have given the meaning the ' employer attaches to the word "compassionate" , notwithstanding the existence of vacation credits. Since the employer did grant this employee time off, albeit without pay;the employer has explicitly acknowledged, that the cir- cumstances for which the.time off was taken warranted such a request and, I~feel, implicitly acknowledges the compassionate nature of~the request. To ,argue otherwise his to admit that the existence of vacation credits had to. be a condition precedent before such a request would be granted. To turn to the private sector is of little help here. The employee taking leave for compassionate reasons in the private sector and using vacation, credits does not realize any net gain but, rather, simply transfers a benefit. In effect, the compassionate leave may be with pay but only with a cosuaensurate reduction in vacation credits. The situation is; of'cburse, different in industries that have a vacation shutdown. However, the public sector does grant leave with pay and does not shutdown for vacation periods. I would have allowed the grievance. ~.~COl~lom '// Member ./ .