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HomeMy WebLinkAbout1980-0657.Fagan.81-06-11Between: Before: 657/80 IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEEIENT BOARD Mrs. Susan Fagan - And - Grievor The Crown in Right of Ontario (Ministry of Consumer and Commercial Relations) Employer Prof. P. G. Barton Vice Chairman Mr. A. Reistetter Member. Mr. G. Beaulieu Member For the Employer: Mr. W. Gorchinsky Civil Service Commission For the Grievor: Ms. Eva E. Marszewski, Counsel Hearing: May 12, 1981 -2- The grievor Susan A. ,Fagan is Secretary to the Registrar, Motor Vehicle Dealers Act, Business Practices Division, Ministry of Consumer and Commercial Relations. On September 25, 1980 she filed an application for "religious holiday - special leave" in which she requested September 11 and 12, 1980 as special leave with pay according to Article 54.1, 54.2 of the relevant agreement. The reason for the request was stated to be "Religious Holidays - Rosh Hashanah.“ The request was forwarded by A. W. Abrams, Registrar, Motor Vehicle Dealers Act, to J. E. Service, Director of Personnel Services. His response of October 10, 1980 was that it was the position of the Ontario government that Article 54 relating to special leave was not appropriate for religious holidays. He ' indicated that the grievor could utilize vacation credits or request a leave of absence without pay. On October 29, 1980 the grievor filed this grievance alleging a violation of Article 54 in the refusal of leave with pay. Article 54 reads as follows: "Article 54 - Special and Compassionate Leave 54.1 - 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 upon special or compassionate grounds. 54.2 - The granting of leave under this Article shall not be dependent upon or charged against accumulated credits." The evidence given by the grievor was not disputed by the Ministry. In the first place she indicated that she was Jewish, and that for several years she has taken a leave of absence -3- during the Jewish high ho lidays, Rosh Hashanah and Yom Kippur. In 1977 she requested a leave with pay and was denied. She was granted a leave but it was charged against her attendance credits. In 1978 the same procedure was followed. In 1979 she made the same request which was initially denied. Subsequently a leave of absence with pay was approved for a "religious holiday" by a Mr. Gibbs. In 1980 a similar request was made by her (referred to earlier). Bearing in mind the result in 1979 she was under- standably confused about her position and brought the grievance. The bona fides of the grievor's religious belief is not -- in disbute in this matter and we have heard no evidence which suggests that the Ministry, which deals with a number of requests similar to hers each year, denied her request in 1980 because it did not judge her to be sufficiently devout. Additionally, there is no evidence that she is treated any way different from others of her religion or of other religions. It is an undeniable fact however, that certain Christian holidays are included in the holiday schedule and that she is entitled to those holidays whether she wishes them or not. The approach to be taken by Arbitrators to refusals of leave of absence is a matter which has been dealt with in the private sector and by this Board on other occasions. Although this case is not technically one of denial of leave of absence but of denial of pay for a granted leave of absence, the approach would seem to be appropriate. That approach is that management must be fully informed about the circumstances of the request, must address it .I 9 F -4- objectively and without discrimination, and must apply reasonable criteria. With respect to the-question of whether or not the employer took an objective and informed approach to her application, we have no reason to doubt that it did. In the first place it appears to us that both Mr. Abrams and Mr. Service were fully informed about her situation. With respect to question of whether or not irrelevant criteria were taken into account we are somewhat 'troubled by the reference in the reasons for denial to the existence of possible vacation credits. If this were the sole reason for the refusal we would feel that it had been unreasonably made. The major question involved here is whether the employer has fettered its discretion by establishing a general policy that applications of this sort are not applications which can be granted under Article 54. management is faced with a substantial number of requests of this sort each year and has established a general policy to deal with them. We feel that it is not inappropriate for management to do this, provided that it fairly considers each case on its merits. It has the power to establish its interpretation of Article 54 and to indicate in advance in a general way the sorts of criteria it will apply in considering applications. This Article is somewhat different from the leave of absence provision, Article 29.1 of the agreement. Article 54 refers to "Special and Compassionate Leave". This Article was considered in Freeman (87/80), in which decision our Chairman Weatherill indicated that it might be too restrictive an inter- pretation of that Article to limit it to emergency situations. ,; ,Z : -5- That does not appear to have been done in this case. This.application is not a compassionate one but rather a special one. Special has been defined in various dictionaries such as Oxford or Websters,,as "peculiar to an individual", "exceptional in amount, degree or intensity", "distinguished by some unusual quality", "unique", "not part of a regular series". We feel that there is some force in the argument that an annually recurring holiday of the sort considered here is not appropriately to be considered as a special circumstance, and do not feel that the situation falls within Article 54. Accordingly we are in agreement that the de&al of her request was a reasonable one, and that the granting of a request in 1979 can be characterised as an error. It seems to us that the answer to the problems of religious holidays which are.not presently included in the holiday clause, is to establish floating holiday provisions in that clause. This would ensure that persons.of all religions other than Christianity, would have available to them one or possibly more days upon which they could exercise their religious beliefs. DATED AT London, Ontario thisllthdanof Jbe, 1981 Peter G. Barton Vice-Chairman "I concur" A. Reistetter Member "I concur" G. Beaulieu Member