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Home My WebLink About1984-0146.Jackson.84-10-12TELEPHONEE’ 416/599- 9699 146184 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAlNINC ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: OPSEU (Thomas Jackson) and. Grievor The Crown in Right of Ontario (Ministry of Correctional Services) Employer A. M. Kruger Vice-Chairman .F. T. CoUict Member F. Taylor Member For the Griever: P. A. Sheppard Grievance Officer Ontario Public Service Employees Union For the Employer: P. A. Radley Staff Relations Officer Ministry of Correctional Services Hearing: August 9, 1984 DECISION This matter arises from a grievance launched by Mr. Ton Jackson as a result of the Employer’s decision to deny him special or compassionate leave under article 54 of the collective agreement. The board’s jurisdiction to hear this matter was not challenged. Fortunately the parties are agreed on the relevant facts in this matter. Mr. Jackson has been a Correctional Officer 2 at the Niagara Detention Centre since 1966. In January, 1983, the griever’s grandfather died. Mr. Jackson did not plan to attend the funeral but requested one day oE bereavement leave under Article 48.1, so that he could meet his mother on her return from the funeral. initially :” he was told that this request would be granted. Later, after he took off the day; he was informed that his request had been denied but that if he requested conpassionate leave under Article 54.1 , it would be granted retroactively. Hr . Jackson requested compassionate leave and his request was approved. In June, 1983, the griever’s wife’s grandmother passed away. He was asked to attend the funeral and serve as a pall bearer. He agreed to do so and asked for one day of compassionate leave under Article 54.1. This request was denied but he was offered the day off~either without pay or by using a day from his bank of unused time off in lieu of holiday’s worked. Mr. Jackson protested against this decision. He took the day off but initiated a grievance. That matter proceeded to arbitration. In an award dated April 19. lYS4, his grievance was denied. Mr. Jackson’s great-uncle passed away late in October of 1983. The funeral wits scheduled for early November and Mr. Jackso:l agreed to be ii pall bearer. He requested compassionate leave under Article 54.1 of the agreement. His request . ../3 -3- was denied. However. he was permitted to take the day off work to attend the futieral on the understanding that it was an unpaid day off or that it would be taken as a day off using a credit’from his bank of unused leave for holidays worked. Mr. Jackson attended the funeral. He grieved and it is this matter that is before us. The Board has reviewed the evidence and argument presented to us at the heming. We conclude that there was no violation of Article 54 and that this grievance should be dismissed. In arriving at our decision, we were influenced by the decision of another panel of this Board in dealing with lir. Jackson’s earlier grievance. We will not repeat the very able arguments used by Mr. R.J. Roberts, Vice-Chairman, in.that decision (Re: OPSEU and Ministry of Correctional Services, 487183). which we feel apply to the matter before us. There are a few additional comments we wish to add in support of the position we have taken. The Union referred us to a memorandum issued by the Employer on March 10, 1981. which is intended to guide those in authority in the administration of Article 54. That nemorandum lists a number of areas where “Normally, ho&er, the provision of Article 54 are not applied”. Leave to attend funerals of those not included in the bereavement clause (Article 48) is not mentioned in this list, The Union’s position is that the Employer was bound by that Memorandum and could not automatically deny such a request in administering Article 54. This Board does uot view the list of exclusions in the Memorandum as a complete list. Rather it covers only the most likely areas where requests for compassionate leave might be expected and should normally be denied. The list does not mention such requests as a desire to uatch a football game yet such requests might legitinntely be rejected out of hand. . ..I4 - 1, - Furthermore. the parties have put their minds to the issue of bereavement leave and had agreed to the provisions of Article 48 which deal with this matter. What Mr. Jackson has attempted to do both in his earlier grievance and in this one is to use Article 54 to amend and extend the provisions of Article 48. We agree that the Empl.oyer is entitled to resist such efforts, and to grant bereavement leave under Article 54 only in extraordinary circumstances. Counsel for the Union emphasized the importance to the griever of time off to attend the funeral and serve as pall bearer. We agree. The fact is that the Employer accommodated his need, albeit not under Article 54. As for the suggestion that the Employer should have been,more thorough in investigating Mr. Jackson’s request , we are satisfied that Mr. Rildebrand. wd decided this matter for management, knew enough about it to rule on this particular request in a reasonable manner. _~ Our position at first glance, may appear to conflict with earlier decicd.on in other cases. As for the Employer’s decision in January, 1983, with regard to the griever’s request for bereavement leave under Article 48, we believe that the Employer err&in denying that request and in resorting to Article 54 at that time to provide bereavement leave. As for the decisions of this Board in the Elesie, GiIlies and Freeman cases, we find that they are distinguishable from the matter before us. Ms. Elesie. (Re: Ms. Helerr Elesie and Ministry of health, 24/79, decision of Professor Katherine Swiuton), sought compassionate leave to assist her daughter-in-law who had been seriously injured in a car accident. There was no issue of using compassionate leave to extend the covrr.?gc of rhc bcrcavement leave clause iu that case. . ..I5 -5- In the case of Mr. Gillies, (Re: Mr. Wm. Gillies and Ministry of Correctional Services, 274/81, decision of Es. G. Brent), his grievance was granted because the Employer had not properly considered his request. The Board in that case did not comment on what its decision might have been had the Employer followed proper procedures. As for the case of Ms. Freeman, (Be: Ms. E. Freeman and Ministry of Health, 87/80, decision of Ms. J.F.W. Weatherill), that matter involved a request for special leave to attend to family business subsequent to a leave covered by Article 48. It was not a request for bereavement leave per se. The only other matter that might cause concern is whether there was a violation of section 54.2 of the agreement which states that: The granting of leave under this Article shall not be dependent.upon or charged against accumulated credits. We find that there was no violation of this section of the collective agreement. Had the Employer considered Mr. Jackson’s banked lieu days in arriving at the decision to deny his requesr or had the Employer granted the request for special or compassionate leave and then charged it to r.he,grievor’s accumulated credits, there would have been a violation of section 54.2. There is no evidence that Mr. Jackson’s accumulated credits entered into.the Eraployer’s decision. Since the request was denied under Article 54.1, there could be no other violation of 54.2. Nothing in section 54.2 prevents the Employer from denying a request under 54.1 and then proceeding to grant tither unpaid leave or a day off financed by an accumulated credit. The latter course of action is provided for under scctiou 19.4 of the collective agreement. .;./6 -6- For all these reasons, this grievance is dismissed. Dated at Toronto, Ontario, the12th day of October, 1984. T--- ‘i+&? &i+A _ F. Taylor, Member