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Home My WebLink About1980-0080.Freeman.81-03-27IN THE MATTER OF AN ARBITRATION under the CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Betareen: Ms. Evelyn Freeman and Griever Before: For the Griever: The Crown in Right of Ontario Ministry of Health tiPfoYer J.F.W. Weatherill - Chairman Ci. Peckham - Member R. Russell - Member Mr. George Richards, Grievance Officer Ontiio Public Service Employees Union Mr. R. Rey, Personnel Standards Officer Ministry of Health February 17, 1981 I / i: -2- In this grievance, dated January 29, 1980, the grievor alleges that she has been improperly denied special and compassionate leave and that this denial is in violation, of article 16.1 of the collective agreement. That article is as follows: ADeputybIinisterorhisdesigneernaygrant an employee leave-of-absence with pay for notmorethanthree(3)daysinayearupon special or commonate grounds. The circumstances in respect of which the grievor seeks special and compassionate leave are the following. The griever is a Data Entry Operator 2, and is one of some forty such operators working at the Ontario Health Insurance Plan office at Hamilton. On September 19, 1979, the grieva’s father died at his home in Manor, Saskatchewan. The griever learned of her father’s death on the morning of that day, while she was at 1 work. The griever requested bereavement leave (she was entitled to up to three days leave-of-absence with pay under articIe 10 of the employee’ benefits collective agreement), and in addition requested three days’ special and compassionate leave, which request was denied. That request was made becarse the grievw then contemplated some delay in holding her father’s funeral, so that certain relatives from northern British Columbia would be able to attend. In fact those relatives were unable to attend, Andy the funeral was not delayed. The refusal of that first request for speck& and compassionate leave is not in issue in this case. The grievor left for Saskatchewan on the evening of September 19, although she did not arrive at Manor until about 0:30 a.m. the following day. Later that morning she began making arrangements for the funeral, -3- funeral, the griever and her brother, being the only beneficiaries of their father’s estate contacted the solicitor who was familiar with the situation concerning his assets. The solicitor’s office was in Swift Current. The first occasion on which it was possible for the griever and her brother to have access to the witi was on Tuesday, September 25. The griever and her brother &tended with the solicitor at the Sheriff’s office in Arcola, some thirty miles fmm Manor, where the will was read and certain administration matters dealt with. When that business was concluded, it was then too late for the griever to take a flight home~on that day. She did return to Hamilton the following day, actually arriving at her home about 2:00 a.m. on Thursday, September 27. Just before the griever left for Saskatchewan, her doctor had advised her to ccntact him on her return. She did visit the doctor at A30 a.m. QI the Thursday, and it was his recommendation that she stay off work for a month. The griever then went to~the office where she presented the docta’s certificate and advised that she would be off work. There is no issue as to that. The griever was off work ‘most of the day. QI Wednesday, September 19. She was paid by way of sick leave credit for that day. Thursday, September 20, Friday, September 21 and Monday, September 24 were days cn which the griever was absent on bereavement leave, with pay. In respect of Thursday, September 27. and apparentiy thereafter, the griever, being absent by reason of illness, was paid pursuant to a sick leave phfl. While the grievor was granted leave in respect of Tuesday and -4- Wednesday, September 25 and 26 (that is, no complaint was made about her extended absence), she..was not -paid in respects of those days. It is for those two days that she seeks leave with pay on “special Q compassionate grounds’. Clearly, a provision such as article 16 confers a discretion on the employer with respect to the granting of leave with pay. The discretion must be exercised reasonably, and the employer may not discriminate unfairly as between empldyees in exercising such discretion. The application of article 16 and the Board’s roIe in reviewing a decision of the employer with respect to special cr compassionate leave were considered .’ in the Elesie and Ministry of Health case, 24/79. In that case, having, regard to the particular facts before it; and to the nature of the criteria applied by the employer, the Board concluded that the griever had been unreasonably denied compassionate leave. It was felt that the criteria. applied were unnecessarily restrictive in emphasizing the “emergency” aspect of situations which might call fa compassionate leave, and that ,the employer had in any event acted unreasonably in applying its own criteria. In the instant case the Director of the Operations Branch (being the designee of tie Deputy Minister for this purpose), applied criteria essentially similar to those which had been applied in the Elesie case. It was the Director’s evidence that for special or compassionate leave with pay to be granted, he would have to be satisfied that the situation was I) an emergency, and 2) beyond the control of the employee. It should be, he said, a situation that the employee could not makes other arrangemenntr to cover. -5- fn the instant case, there is no suggestion that the death of the grieva’s father was anything other than an emergency, at least for the members of the immediate famiiy. Absence on bereavement leave with pay is of course contemplated by other provisions of the agreement than article- 16. An extension of paid bereavement leave, as such, is not contemplated by the collective agreement, and we note that the refusal of the griever’s first request for special and compassionate leave is not in issue. The request before us is based on quite different grounds, namely the circumstances which retained the grievor in rural Saskatchewan until the fate afternoon of September 25, making it impossible then for her to return to work earlier than she did. As the Director made clear in his evidence, the critical question in his mind was whether cc not it had been necessary for the griever to : attend. the reading of the will. In discussions relating to her request, the griever indicated that her attendance at that meeting had in fact been required. The grievor was advised that if she could give some proof of - that, her request Would be reconsidered. it would appear that. the griever did not’ respond promptly to that suggestion, but eventually a letter apparently from the solicitor in question, was furnished to the employer, and was put in evidence at the hearing of this matter. That letter, not surprisingly, does not state that attendance by the griever at the reading of her father’s will was “mandatory’. It does, however. (and again not surprisingly), stress how important it would be fmm the point of view of -6- the administration of the estate, given the distance at which the grievor resided, to deal with the documentation involved while the grievor was still in Saskatchewan. While it was not in fact %ecessary*‘ from a very strict point of view that the griever have remained in Saskatchewan following the funeral, we are convinced, having regard to the circumstances and the grieva’s own evidence, that she herself believed that such attendance was necessary. In this respect we would refer to certain comments made by the Board in the Elesie case and with which, with respect, we agree. Cne is that article 16.1 provides for bmpasbate” leave, not %nerRencP leave, and that compassionate leave is granted to an employee when he or she is in a situation deserving of sympathetic treatment. Another of course is that while the Board must show deference to the exercise ‘of managerial .discretion under article 16, and not decide on then “correctness” of that exercise when the issue is one of reasonableness, it should not ccasuue Yeasonablew to mean “any possible reason”. In terms of the criteria applied in tk instant case, we do not consider it reasonable to construe ‘hecessity” as meaning ltbsolute necessity’. In the instant case, given all the factors involved: the death oi the grievorS father; the distance to be travelled; the family situation; the difficulty of access to the will and the very substantial inconvenience ‘which would result from ‘inability to meet with the solicitor; all those, considered in the light of the griever’s own belief in the necessity of her attendance (and bearing in mind that the griever was, on her retum, -7- directed to take substantial sick leave), it is our conclusion that, on the employer’s own criteria reasonably construed and applied, the grievor was entitled to the exercise of discretion in her favour. For the foregoing reasons it is our conclusion that the grievor has . been unreasonably denied compassionate leave. It is accordingly our award that she be paid in respect of the two days in question. DATED AT TORONTO, this 27th day of March, 1981. . . ~. .___.._ ~..~~ “1 concur -’ R. Russell” Member It “I’concur - S.Peckham” Member