The URL can be used to link to this page

Home My WebLink About1980-0019.Figliano.80-04-2819180 IN THE MATTER OF AN ARBITRATION Gnder The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIDJANCE SZTTLEMENT B3ARD Between: Mr. Anthony Figliano (Griever) and Ministry of Transportation and Communication (Employer) Before: J.F.W. Veatherill, Chairman A. Fortier, "(emher H.E. r\'eishach, Metier For the Griever: G. Richards, Grievailce Ofbicer, Ontario Public Service Employees Cnion For the Employer: I. Cowan, Director, Personnel Branch, Ministry of Transportation and Communication Heard at Toronto, March 6, lYe0. -2- In this grievance, filed at Step One on January 2, 1980, the grievor alleges that the employeehas violated article 29.1 of the collective agreement by not qrantinq his request for leave of absence. The relief asked is that such leave he granted. The qrievor was hired as a Clerk 2 - General in November, 1976. He subsequently became a Clerk 3 and was in that classification at the material times. In 1978 he enrolled as a part-time student in a course given at Humber College. He was allowed to leave work early when necessary to attend classes, making up the time by adjusting the other hours of his schedule. In the late summer of 1979,~ he became a full- time student. On August 29 of that year he is said to have submitted a resignation, which l-:e sought to withdraw on August 27. The employer took the position that the griever had effectively resigned. A grievance was filed with respect to that, and the matter was ultimately heard at arbitration by a panel of this Board. It would appear that the Board concluded that the grievor had not in fact resigned, since it ordered his reinstatement in employment, although without compensation. The reasons for that decision have not yet been issued. i -3- in application was made to the Board (to the panel still seized of that matter) with respect to the date of reinstatement and the compensation which might, in some circumstances, he payable. In a de- cision dated November 16, 1979, the Board held that it lacked jurisdiction with respect to the matter of reinstatement of the qrievor: it had fixed a specific date of reinstatement and was functus officio with respect to that issue. _ The Board was also, it was held, functus officio with respect to the issue of compensation for time off work. It did, however, have jurisdiction under section 1813) of The Crown Employees Collective Bargaining Act with respect to other forms of comPensationr and it then made a conditional order of compensation. That is, certain compensation was to be payable in the event the employer insisted on the griever's immediate return to work. The employer, did not then insist on the qrievor's return to work, and his "delayed. reinstatement" (in effect a leave of absence) was allowed. The grievor did return to work for a short period in the later part of December, 1979. He did not remain at work, howver, but has continued -4- as a full-time student at Humber College. On or about December 2c), 1979, Mr. Richards, as the grievor's union representative, mad~e various representations to the employer on the union's behalf, including a request for leave of absence without pay, as contemplated by article 29.1 of the collective agreement. This request did not receive a favourable response, and the present grievance was subseqllently filed. Before dealing with the particular issue before us, we propose to comment briefly on two points which were referred to either in the course of the grievance procedure or at the hearing. One seems to have been that it was not open to Mr. Richards to make an application on the qrievor's behalf. While counsel for the employer did not advance this argument at the 'hearing, it may he well for us to indicate our view that, at least in the circumstances of this case, it was perfectly proper for Mr. Richards, who was undoubtedly acting as the qrievor's agent, to advance a request for leave of absence on the grievor's behalf. Another question that arose was as to the griever's possible entitlement to educational leave with pay, pursuant to section 37 of The Public Service Act. It is sufficient to say -5- that that is simply not an issue which arises in these proceedings. Fhether or not the course of study being followed by the grievor was one which would be of some ultimate benefit to the employer (a rather remote possibility on the facts of this case: the employer did not need Explosives Techicians, and it certainly did not need its Clerks-General to he trained in that respect), might be one of a number of considerations possibly affecting a decision pursuant to article 29.1 of the collective agreement. In the circumstances of the instant case, such a consideration would be of little weight. Since the case before us is a grievance relating to articie 29.1 of the collective agreement, and since we do not have jurisdiction to make any final determination of such quest- Ions under The Public Service Act, that is the end of the matter. The issue before us, then, is whether or not the employer violated article 29.1 of the collective agreement in not granting leave of absence to the grievor. That article is as follows: 29.1 Leave of absence without pay and without the accumulation of credits may be granted to an employee by his Deputy EZinister. -o- Such a provision clearly gives the employer a discretion in in the matter of granting leaves of absence. As many arbi- tration awards have held, such discretion must be exercised in a non-discriminatory and reasonable manner. A board of arbitration, in determining whether or not there has been an abuse of discretion, plays a restricted role and is not concerned with the "correctness" of the decision; it is unwise for an arbitration board to second guess management in the structuring of the workload: se Martha B. Young, 220/79. The employer did, in fact, give consideration to the request - or rather, requests - made on the grievor's behalf. The refusal to grant leave of absence without pay was based, accord~ing to the evidence, on the following considerations: the grievor had relatively short service; his service during the first half of 1979 was not considered satisfactory: the grievor had already been absent for four months at the time the requestwas made: it was considered unlikely that the grievor would return as a Clerk 3; and the course of study being followed was not one to which the employer as such attached any importance. There is nothing to suggest that the emoloyer's refusal of leave iti this case constituted an act of improper discrimination -7- against the' grievor. The considerations which motivated the decision were all appropriate ones. The determination made by the employer was, in these circumstances, a proper exercise of managerial authority, and within the scope of its discretion under article 29.1 of the collective agreement. There was, as we find, no violation of that article in this case. For the foregoing reasons, the grievance is dis- missed. DATED AT TORONTO, this.1 'i'say of April, 1980. Yember see attached I?4 THE MATTER OR AM ,ARBITRATION UNDZR THR CROPJN EMPLOYZES COLLECTIVE BAR AINING ACT BEFORE THE GRIEVANCE SETTLEMENT BOARD BETWEEN: Mr. Anthony Figliano (griever) AND: Ministery of Transportation and Communication (Employer) .MINORITY REPORT ____________________------------------- Having carefully studied the award in the above arbitration case, I must respectfully decline from the opinion of the maj,ority in this decision. The facts in this case are not in dispute. The grievar was mainly interested to further his education in order to become a better civil servant and to move ahead in the civil service. This endeavour, in my opinion should be supported. It might be correct, as pointed put at the hearing, that the knowledge which the griever would acquire may not immediately be useful at his present job, but there are , as we heard, possibili- ties in the ministry where his knowledge could be very useful. The grievor should therefore have been able to obtain educational leave. This is even more true since the grievor had asked for leave of absence without cay, so that there is no direct cost involved for the employer. e i 2 . . . . * Therefore I am of the opinion that the griever is entitled to educational leave to further his education. The leave should have been granted without pay. The Grievance should therefore have been allowed. Toronto, April 28th 1980, Respectfully submitted: