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Home My WebLink About1981-0549.Lawrence.82-02-01IN THE 1MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Maisie Lawrence) Grievor Before: - And - The Crown in Right of SDntario (Ministry of Consumer and Commercial Relations) Employer R. J. Delisle Vice Chairman D. Anderson Member D. B. Middleton Members For the Grievor: N. A. Luczay Grievance/Classification Officer Ontario Public Service Employees Union For the Employer: L. Dorff Manager, Personnel Services Ministry of Consumer and Commercial Relations Hearing : January 25, 1982 The griever is s CIR.T. Operator in the Tersonal Property Security Registration aranch of ~tha Ministry of Consumer and Commercial Relations. As such she responds to a. Lead C.R.T. Operator, one Cove11 and through her to a C.R.T. Supervisor, one Robinson. The incident giving rise to the complained of discipline occurred on July 15, 1981 and involved the griavor absenting herself from her place of work without permission. The office policy with regard to taking time off for appointments reads: "Requests for time off because'of appointments must be submitted for approval to the C.R.T. Supervisor at least 24 hours in advance. A maximum of 2 hours is allowed to be made up through l/2 hour worked during lunchs or 15 minutes per coffee breaks, more than 2 hours will be charged against your vacation credits." On July 15, between 8:OO and 9:00 a.m. the griever requested time off for a doctor'.? appointment. This request was made of Cowl1 who advised that she saw no problem with regard to the same. Later Cowell was advised by Robinson that time off by the griever wculd have to be arranged with Robinson personally. Robinson testified that the normal process was for her to delegate approval of time off requests to the Lead Operators but that *with respect to the griever's position she, had reserved the same to herself because of a previous incident. It appears to be common ground that on June 10, 1981 the griavor had secured tine I off for the purposes of an appointment of a duration of three-quarters of an hour. Fifteen minutes of that was - 3 - later made up during coffee break in the afternoon hut the remaining half-hour was still not made up at the time of the later. request on July 15. The griever was confronted with this on July 15 and was adamant in her refusal to make up the neceesary tine. The practise in the Department called for employees to make up. their time off within five days- Because of the griever's refus~al to countenance making up time Robinson refused the grievers request and the grievOr announced that she wes leaving with or without permission. I find as a fact that the Supervisor clearly refused persissicn to leave and that the griever was well aware of the ~saue. It would appear that the griever's -refusal to make up time stemmed from a perception on her pare with regard to another matter entirely, e perceived discrepancy in an earlier paycheck. This discrepancy was later resolved but the griever apparently saw Robinson as not being efficient in seeking its resolution and waS therefore resolving to be uncooperative with respect to making up lost time. A personality conflict between the griever aed Robinson was obvious from the evidence. The employer's response to this incident, after consultation with a Personnel Representative, was to write a letter to the griever on July 17, 1991, officially citing the griever's conduct as insubordination and deducting from her pay the one and one-quarter hours which the grieoor took off without permission. The griever asks tSat this let:er - .I - of discipline be removed from all files of the employer and that the one and one-quarter hours pay be returned. In Brown and ~Beatty, Canadian Labour Arbitration, 1977, 7:3120, at pages 299400 we read: .Of course, where an employee absents himself from work in the face of the employer's refusal of his application for leave, unless there are extenuating circumstances, the employer may ~properly discipline him for insubordination even though the leave may have been unreqsonably withheld . . ..Arbitrators are agreed that except in cases of acute and su~dden illness and where no member of supervision is readily available, en employer is not entitled to absent himself without seeking permission from scme member of management. 'I In the case before us the griever testified that it was necessary for her to see the doctor on July 15 es her face V*S "slightly swollen". I find es a fact that no true medical emergency existed, the griever did not advise her Supervisor that an emergency existed and the griever did not seek to make use of the medical facilities readily available at the work site. In short theta are no extenuating CirCUmstances made out which could avoid labelling the griever's conduct as insubordination. Refusing to pay the griever for the one and one-quarter hours that she was absent without permission is not discipline in any sense and the'only discipline taken by the employer in this situation is the vritten warning. This is minimal discipline considering the circumstances and completely justified. The griever testified that et the time she didn't realize how SariCUe her tranSgreSSion Was. The evidence indicates that betveen June 10 and July 15, 1981, despite the serious regard had by Supervision to the griever's failure to make up time taken off. there was no communication by Supervision to the griever that such WaS so necessary that future requests might be jeopardized. Supervision waited until the next request for time off Was made. The Board is not aware of all the circumstances which produced this lack of communication but sees the same as at least a contributing cause of the incident. In the result the grievance is dismissed. Dated at Kingston, Ontario this 1st day of February, 19S2. R. JdDelisle, Vice-chairman "I concur" (See Addendum attached) D. Anderson, Member z+f . . 0. B. Xiddletcn, Member .. ADDENDUM 549/81 OPSEU (‘XAISIE LAWRENCE) - and - THE MINISTRY OF CONSUXER AND COMMERCIAL .RELATIONS While I agree that in the circumstances of this case, the dis- cipline imposed on the grievor was justified, I do not accept the statement contained on page 4 of the Award that it was "minimal discipline in the circumstances and completely justi- fied." -Xy reasons are as follows: 1. The grievor's Lead Supervisor, the person normally responsible for the approval of such requests, was prepared to approve the request until she was advised that Mrs. Robinson would have to be consulted. It is clear that there was no "work related" reason to deny the leave. 2. The grievor had been under her doctor's care for con- tinuing medical problems. When she noticed a slight irritation on her left cheek, she consulted her doctor and was fortunate to get an appointment for July 15th on very short notice. The grievor testified that her condition-was "very painful"; which is con- sistent with the fact that she was found to have an abscess. Perhaps it is to the grievor's credit that she reported to work on the 15th, rather than simol;r booking off sick. In any event, I would find that the grievor had a sound medicalreason for requesting the leave. 3. I conclude., on the basis of the above, that the leave of absence to attend the doctor's appointment should have been granted; 4. The reason advanced by the employer for denying leave was that Mrs. Lawrence had yet to make up 30 minutes' time from a previous appointment and was adamant.in her refusal to do so. This is denied by the grievor who testified that she had never refused to make up such time. The grievor's position is supported by the fact that as of July 15th, Shea was owing only 30 minutes, attributable to her June 10th appointment. One can assume, therefore, that any other time had been made up. In fact, she had made up 15 of 45 minutes owing from the June 10th appointment. The most that she could he accused of was taking a long time to make up her time. The majority state that "the practice of the DepartTent called for employees to make up their time within five days".. cont:nced... . Page 2 Addendum 549/81 OPSEU (Maisie Lawrence) This is not supported by the actual written policy itseif or the evidence of the Lead Supervisor who stated that: 11 some employees make up their time within a week while others stretch it out more". The griever's evidence was that she had not forgotten about the 30 minutes. The mere fact that 30 minutes was not made up at the time of the July request is not, in itself, just cause for denying the July 15th request. On the other hand, the grievor is not in the position to refuse to make up her time. At the hearing, this was acknowledged by the grievot. Under the circumstances, I would find that the grievor's actions, while understandable, did constitute insubordination in that she absented herself without permission and where no medical emergency .existed. Nevertheless, I would conclude that the leave was unreasonably withheld and therefore, the discipline imposed, a written warning, ought to have been a minimal one. The circumstances of this case do no,t justify imposition of a harsher penalty. February 25, 1982. Dan Anderson