HomeMy WebLinkAbout1984-0389.Wilson.85-11-14IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Befae
THE GRIEVANCE SETTLEMENT BOARD
Between: OPSEU (Kevin Wilson)
and
Grievor
The Crown in Right of Ontario
(M.inistry of Correcticnaf Services) I
Employer
Before: G. Brent Vice-Chairman
8. Switzman Member
W. A. Lobraico Member
For the Griever: 5. T: Goudge, Q.C.
Gowliig & Henderson
Barristers & Solicitors
L. Rothstein, Counsel
Cowling & Henderson
Barristers & Solicitors
For the Employer: D. W. Brown, Q.C.
Crown Law Office Civil
Ministry of the Attorney General
L. Kolyn, Law Officer
Crown Law Office Civil
Ministry of the Attorney General
Hearing: March 5, 1985, March 6, 1985, September 5, 1985
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There are two grievances before the board,-both of which deal with
the allegation that the griever was wrongfully denied Union leave on the
dates in questicm cmtrary to the collective agreement and the minute Of
understanding between the parties. There are other allegations
cmtained in the grievances; however, the only cmcern placed before us
was whether the collective agreementandthe minute of understanding had
been breached.
The) two denials with which we are concerned were for leaves on
I' February 22, 1984 and April 3, 1984. Since a great deal of the evidence
1. which we heard relates to matters which are relevant to both grievances,
we will attempt to summarize all the facts and then treat the grievances
separately for the purpose of our cmclusicns.
The leave requests were made pursuant to Article 28.5.1 of the
collective agreement. The relevant provisions. of the collective
agreement are set out below:'
28.5.1 ~(a) Upco request by the Unicn, cmfirmed in
writing,andprovidedthatreasonable
notice is given, leave-of-absence with
no loss of pay and with no loss of
credits shall.be grantedtoemployees
6' as Executive Board Members and /@' Executive Officers of the Union, for
the purpose of ccmducttig the internal
business affairs of the Union.
(b) On the understanding that leaves
requested under (a) will be kept to a~ lUinilWJSl, it is agreed that extended
leave-of-absence will be granted to
four (4) employees in any calendar year
for the purpose of conducting the
internal business affairs of the Union.
Each leave will be for a period of
ninety (90) consecutive calendar days
and only one (1) such employee.willbe
absent at one time. /
The leave shall be with pay and without
loss of credits~and reimbursement to the
Treasurer of Ontario shall be made as set
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out in sub-secticm 28.6.2.
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28.6.2 During the term of such leave-of-absence
the Union will reimburse the Employer for'
the salary paid to the employee on such
leave-of-absence and contribute the
Employer's share of contributions to the
Public Service Superannuation Fund and the
Canada Pension Plan. The irnion will make
the Employer's contribution to any
prevailing health or other plans applicable
to the electedemployee and pay the costs
of attendance credits accumulated during
the leave-of-absence. The Dnian will make
the Employer's contribution for
Unemployment Insurance.
. . . . . . . . . .
28.7 The employee shall discuss any required
leave withhis supervisor at the earliest
opportmity.
28.8 All requests for leave-of-absence permitted
in these sections shall be sent to the
Directors of Personnel of the affected
ministries with copies to the Executive
Director, Staf.f Relatians Divisicn. It is
understood that leaves requested by the
Mien may be withheld if such leaves unduly
interfere with the operating requirements
of the Employer.
The memorandum of agreement executed by the Employer and the Dnim
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(Ex. 5) was also filed. It provides! among other things, for the
creation of Employee Relations Committees at various levels. Article 10
of that memorandum is reproduced below:
ARTICLE 10 - TIME OFF WORK TO ATTEND EMPLOYEE
RELATIONS COMMIlTEE MEETINGS
10.1 Leave of absence withno loss of pay and with
no loss of credits shall be granted to permit
the attendance of union representatives at
committee meetings. However, leaves
requested under this agreement may be
withheld if such leaves unduly interfere with
the operating requ+xmnts of the Ministry.
10.2 Micm members will not be entitled to receive
pay~for attending meetings at their own time.
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10.3 Leave of absence withoutpay may be granted
to accommodate reasonable travel time.
10.4 At the Mb,istry level- time off work without
pay shall be granted for union team caucus
meetings subject to prior agreement between
the parties.
10.5 The union committee member willnotifyhis
supervisor at least ten (10) days in advance
of the committee meeting of the need for a
leave of absence giving the date, time and
place of the meeting.
The griever was at all material times employed by the Employer as a
Rehabilitation Officer in the Toronto Jail. He'has been a permanent
employee of the Employer since April, 1977. The griever has held
offices in the Toranto Jail local since September, 1977 when he became a
steward. In the years since 1977 he has been alsothevice-president
andpresidentof the local, The Union has an elected Executive Board
which is Its governing body. 'The griever was firstelectedto that
board in.1980, and then was re-elected in 1982 and 1984. At the time of
the grievance he was a member of the Executive Board. The Union also
has divisicns which deal with the various Ministries in the government.
There is such a division for this Employer, and the griever has chaired
the Correcticmal Services Ministry divisicm continuously since February,
The Unicm's Executive Board meets eight or nine times a year. The
griever was elected to the Board as a representative of Regicn 5, which
represents approximately 22,OOj members in the Toronto area. The
meetings last a day or two.
As chairperson of the Union's Correctional Services Ministry
division the griever co-ordinates the activities of the group, ensures
that the locals are acting effectively, ensures that the collective
agreement is complied with, ensures that the agreement with the Employer
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(EX. 5) is complied with, and ensures that the structure operates
effectively to protect the rights of those in the Ministry.
The griever estimated that in the past he 'has' required
approximately fifty daysperyear for Union leave. Se also testified
that prior to the beginning of 1984 he hadnever had a leave request
refused. In September, 1983 he had been given a letter (Ex. 8) by
Mr. DeGrmdis, the Superintendent of the jail, expressing concern about
the number of days which he had been absent from work because of Mien
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leave. The letter is reproduced below:
As I am sure your recall, I have expressed my
concern cm a couple of occasicns in relation to the
amount of leave you have taken in the past two
years under the above noted occasions. Our records
show, that in calendar year, 1982 that you were
away from your duties a total of 50 days or
approximately 22 per cent of the work year. To
date, fn calendar year, 1983, our records show that
youhave been away atotalof 37 days as of August
31 which ante again,. approximate 22 per cent of the
work year.
I would not imply nor should you feel that my
concern is based on feelings that somehow this
leave is illegitimate or unnecessary. I do not
feel that. Rather, I am concerne,d that, because
your positia as Community Corrections Officer is a
key one in the heavy workload of the upcoming
winter, I feel we cannot afford to lose the
services of that position for that amount of time.
Consequently, I will-be scheduling a meeting
in my office in the next two weeks with
Mr. McKerrell, MS. Eley, you and I. I would hope
that in the interim, independent thoughts may be
given to this problem in order to facilitate a
solution.
The griever testified that there was a meeting held in September,
1983 atwhichthe subject of his Union leaves was discussed. He said
that Mr. DeGrandis was concernedaboutthe institution's inability to
replace him while he was away. The problem then seemed to be that,
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although the Unim compensated the Employer for the griever's absence,
the local institutim had to bear the financial burden of replacing him.
It wouldappear that Mr. DeGrandis knew of someone then who wouldbe
suitable to hire on a cmtract basis, but that there was no mcmey made
available to him to cover the cost of replacing the griever.
Ms. Eley also testified that Mr. DeGrandis's cmcern was about the
institutim's inability to recover mmey paid by the Union to cover the
yrievor's leave thus limiting his abiiity to secure a short term
replacement for the griever. She said that she had other cmcerns about
the ability of a casua'lreplacementto do the job on an intermittent
basis, but that Mr. DeGrandis was prepared to consider a casual
replacement with the proper skills.
Mr. McKerrell testified that he also attended the meeting in
September, 1983. Be said that the problem, es he knew it, was the
number of Unim leaves which the griever was taking e.very year. He said
that the institution was cmcerned about the impact which the griever's
absences would have on its abilitytorun the classification process,
and that it was felt necessary'to bring this to the griever's attention
so that he could minimize the number of requests for leave.
Mr. McKerrell said that the griever's position was that his requests
were reasonable andthatitwas uptothe institution to finda way of
making the best of the situation.
Mr. DeGrandis saidthathe was aware of someone who could do the
job with his.confidence, and that the problem was his inability to
recover funds paid by the Union to cover the griever's abesences. He
said that he inquired about the ability to recover-funds in October,
1983 and was told that it was impossible. He said that the only
initiative discussed at that meeting was the availability of the fmds
paid by the Union.
The Union produced the following letter (Ex. 11) datedApril19,
1983 senttothe Union President by Mr.-G. H. Waldrum, Chairman of the
Civil Service Cormissim:
Confirming our recent telephone conversation,
Ministries are being informed that it will be
possible to recover reimbursements made by the
'Union to the Treasurer of Ontario for extended
leaves of absence of employees for onim business.
Ministries may still, on occasion, find it
impractical to grant a leave of absence which
unduly interferes with operatimal requirements but
the inability to recover salary dollars shouldno
lmger be a problem.
The yrievor's job, prior to the beginning of 1984, required him to
classify inmates of the Toronto Jail. lie was required to interview
sentenced offenders and determine the appropriate institutional
classifications for them. There were three people, including the
yrievor, who were doing the same work regarding inmate classification.
In early 1984 there was are-organization of the classification
function. Prior to 1984 offenders who were sentencedtoless than 90
Qys were not classified. After 1984 short term offenders (15 - 124 day
sentences) wouldallbe classified. The classification of short term
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offenders was to be dme solely by me person and the others were to do
long term offenders only. The yrievor was given the respmsibility for
classifying short term offenders. As of January, 1984 offenders
sentenced to terms of up to 124 days were to be treated differently in
the classification process, and the reports done on those offenders
would be geared toward easy, expeditious classification. The aim was to
speed the transfer of inmates out of the Toronto Jail and into other
programmer. The change has increased the number of inmates subject to
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classification, and requires a report which is different than that
prepared for the lmger term offenders.
Ms. Eley is a bargainingunitmember and the yrievor's immediate
supervisor. She reports to the Deputy Superintendent of the Jail. She
testified that the yrievor was chosen to do the short term
classificatims because he had been involtied with classificatims since
1980, was experienced fn a variety of fmctims, was well,known, and had
been a Corrections Officer. The other classification ,officer had
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limitedexperience in the jobandwas there on secondment, andso was
not expected to be available after October, 1984. The gYievor was also
considered to be someone of good judgment who could assess the
informtim given to him without having to do a lot of double checking.
She said that for all of those reasm the griever was the logical choice
for the job, and the decision to place him there was made in
consultation with Mr. DeGrandis. At the time the decision was made
everyone cancerned was aware of the griever's use of leave of absence m
Union business.
The griever had been suspended on or about December 27, 1983
ip;, .., .: -. because of criminal charges which were pending against him. Those
charges hadnothing to do with his work. The decision to make him
respmsible for the short term classificatims was made at a time when
the Employer had no idea when he would be returning to work. 0x1 or
about February 15, 1984 the charges ayafnst the griever w&e dropped and
he notified the EmplOyer that he would be returning to work. During
that absence the work of short term classification was being done by
C.0. 2 Brian Waggmer. Mr. Waygcner was usually employed in the Tormto
Jail as a guard.
The griever was schehuledto return to work on February 20, 1984,
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which was the Monday immediately following the date on which the
charges were dropped. He returned to work on that day.
On February 22, 1984 the griever, in his capacity as Executive
Board member, was required to be on special assignment for the Union
President The leave was requested bsr February 15, 1984 (Ex. 7), after
it was' learned that the griever would be returning to work on February
On February 20ththe griever was given the following letter from
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Mr. C. C. DeGrsndis, the Superintendent of the Tormto Jail (Ex 6):
For some time now, you have been aware of my
concerns around the number of requests made to
allow you to be absent from your duties as a
Community Correctims Officer 2, in order to attend
to mim respcnsibilities. Further, I an sure you
.are aware of several avenues that I have explored
to minimize the effect of these large numbers of
absences on the operation of the Torcmto Jail. It
is unfortmate that I have met with little success
in this regard.
Your immediate Supervisor and I cmsider the
position you hold as a key to the ongoing
initiatives in ensuring that inmates of the Tormto
Jail are in a position to be transferred to another
facility or progrardme with as little delay as
possible and practicable, -after sentencing is
complete. I know from several cmversatims that
you have hadw,ith me, of your continuing genuine
interest in having as low an inmate countatthe
Toronto Jail as possible. It would seem,
therefore, that given this interest as well as
mutual acceptance of the role your position plays
in achievingthatdesiredresult, youwouldagree
with me that any absences from your duty should be
kept to a bare minimum. It is my intention to
weighany suchrequestin the immediate andnear
future against that reality.
While I intend to look ateach request on an
indiviaal basis, it is mly fair to advise that I
Intend to invoke Article 28.9 each and every time I
believe that the operatim of the Tormto Jail will
be unduly and adversely affected by such leave.
For your information.
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On February 20th the griever's new duties were discussed
extensively with him by Ms. Eley for the first time. During that first
week back on the job the griever was expected to begin learning his new
responsibilities and to re-establish his familiarity with the
institution. MS. Eley said that there was nothing to impede
Mr. Waggoner from processing his usual caseload that week, and that the
staff was not below its full complement
Sometime in the afternoon of February 21, 1984 the griever was
informed that the request for leave m February 22nd was being denied
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The reason given for the denial of the leave was "Institutional
Operating Requirements" (Ex 15) and Article 28.8 of the agreement was
invoked. Under the terms of the collective agreement, had the leave of
absence been taken, the Mim would have had to reimburse the Employer
to the extentpr.ovided in Articles 28.5.4 and 28.6.2.
MS. Eley testified that -she'was cmsulted about the griever's leave .
requests. She said that in 1983 the leave requests were ususally
granted without a greatdealof consideration because there were two
other people doing the same work as the griever. She was consulted
about the request for leave on February 22nd. She said that she
indicated that there were over 20 reports outstanding and that
Mr. Waggoner would only be available until the end of the week. She
also said that the griever had mly me week with help to get back into
the job. She said that in her view, g.iven the backlog of reports, the
heavy workload then, and the new programme, it wouldnot be an opportune
time to grant leave.
Mr. DeGrandis said that in refusing the lehve he took into
consideration the backlog of work and the fact that Mr. Waggmer would
.; j only be available for one week toexplain the changegto the griever.
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He said that he cmsidered that the griever's absence would retard the
procedure. He couldnotrecallwhatthe backlog was at the time the
decisiar was made.
A meeting of the Ministry Employee RelatimS Committee was Set for
Apri13, 1984 at 10:00 a.m. As indicated earlier the griever chaired
the Union's Correctional Services Division. The Ministry Employee
Relations Committee is set up pursuant to the memorandum of agreement
between the parties (Ex 51, which also provides that it will normally
meet every two mmths andnot less than twice a year. The meeting was
arranged in late February or early March on a head office to head office
basis, and leave arrangements were made then. It was the Union's
uncontradicted evidence that two dates were always set, one for the
Micm caucus meeting and me for the committee meeting, and that leaves
for those meetings were agreedto'asa matter of course. The meeting
required the attendance of people employed at various locati&s in the
province. A copy ofthenotice of the meeting (Ex. 12) was sent by the
Employer's Manager of Staff Relations, Mr. J. F. Benedict, to the
Superintendent of the TOrmtO Jail on March 30, .1984.
The Employer had granted the griever leave of absence without pay
to attend the Dnim Team caucus meeting on March 29th to prepare for the
April 3rd meeting. On Friday, March 30th Mr. DeGrandis drafted letters
(Exs. 17 & 181 denying the griever leave for April 3rd. The reason
given for the denial is contained in Exhibit 17 and is reproduced below:
Unfortunately, due to the ,workload
requirements of this institutim, I have determined
that your absence on that day will unduly interfere
with the operational requirements of the 'Toronto
Jail. Therefore, I find myself in a position to
deny your requested leave of absence m&r Rrticle
10.1 of the Memorandum of Agreement
The Griever testified that he first learned that he was not being
granted leave when he was telephcmed at the offices of this Board on the
afternoon of Apri12, 1984. The griever had been absent from work on
April2nd because he was under subpoena from this Board to attend a
hearing on that date. He said that he was told by Mr. DeGrandis that
workload was the basis of the decision not to allow him leave on April
3rd. He saidthatwhen he returnedhome he found the letters (Ex. 17 &
18) waiting for him.
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The Union first learned that there was a problem with the griever's
leave on the evening of April 2nd when the griever called Mr. Bekerman,
a staff representative employed by the Union. They agreed that the
griever should go to work on April 3rd and try to see if he could
straighten the situation out and attend the meeting. By that time on
April2nd all of the out of town Union members of the.Committee were
assembled in Tormto. Q1 April 3rd, when the griever did notappear at
the meeting, the Union informed the Employer's representatives that it
could not proceed with the meeting without him because he was of
particular significance as the chairperson. Mr. Bekerman testified that
('- -: " k he couldnot understand the Employer at one levelagreeingto have a
meeting and then permitting someme at a lower level to frustrate the
whole process. The Employer representatives at the meeting could not I
resolve the situation by obtaining the griever's attendance, and so the
meeting was not held.
Mr. Bekerman said that in his view the Employee Relatims Committee
is central to the relationship between the parties and that he was
concerned lest the failure of the Union Chairperson to obtain leave
indicate a change in the relat&cnship between the parties. He said that
when he discussed re-scheduling the meeting with the Employer he
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addressed this problem and was assured that it was a particular problem.
The Employer~guaranteedthe attendance of all Union committee members at
the re-scheduled meeting, and Mr. Bekerman .accepted that
Ms. El,ey testified that she had input into the decision to deny
leave for April 3rd. She said that she had a number of concerns: there
were over 30 reports to h-e dme, the griever was away on April 2nd, and
there were a number of people going on or returning from vacation. She
said that the griever would have been away two days in a row before
return in g, and in view of the high volume of work at that time, and
because the department was short-staffed at the time, she did not
consider that he could be given leave that day. Ms. Eley said that
within the department it is possible for other employees to fill in for
one snother,while the griever is on leave provided that the workload of
the lmg term classification people is low. She said that in her view
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it was difficult to replace the grfevor m a day to day basis by using a
C.0. because it was difficult for inmates to see a person in a custodial
role one day and a classification role the next. She said that no
cmsideration was given to bringing Mr. Waggmer in to help out.
Mr. UeGrandis said that sometime between the date of approving the
leave and March 30th it was brought to his attention that the workload
had skyrocketed and needed attention. He was also aware that the
griever had been granted Unim leave on March 29th and would not be at
work on April 2nd because of the subpoena with which he had been served
In addition, Union leave hadbeen requested for Friday, April 6th as
well as for the 3rd.He was toldon Friday, March30th by Hs.Eley that
the backlog was in the 30's. -He saidthathe considered that a rise in
the backlog was not in the best interests of the inmates and the
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institution, especially when it could be corrected. He said that he
considered that on Tuesday, April 3rd the workload would have to be
addressed very quickly and the griever was needed in the institution cc
the very first day that he was available. Mr. DeGrandis said that if
the griever had been away both Monday and Tuesday then on Wednesday the
problem would have been even greater, and that if he were also away the
next Friday, the problem would be greater still on Monday.
Ms. Eley also said that she did some classification work as needed
from time to time. She saidthatmostof the occasions when she did
this were when they were short staffed because of vacation or illness,
and that she c.ouldnotrecalldoing any significantnumber when they
were at full strength.
The griever testified that sometime after April 3rd he had a
discussion with Ms. Eley and Mr. DeGrandis in which he was informed of
the criterim which would be used to determine whether leave of absence
wouldbe granted. He saidthathe was told then that his application
for leave would be assessed on the basis of the outstanding caseload at
4:00 p.m. on the dayprecedingt'he leave day. He saidthathe was told
I.... g:, that if there were 10 or fewer cases for thenextday leave would be
q-n-d, if there were more than 10 cases then leave might be withheld.
He said that he never agreed to that, and that it was related to him as
the Employer's criterion. The keynumber was later raised from 10 to
12.
Ms. Eley testifiedthatshe thoughtthatthe criterion to be'used
in determining whether leave wouldbe granted was discussed with the
griever sometime in February or March, at least by March 26, 1984 (see
Ex. 13). Mr. DeGrandis said that he was sure that the criterion to be
used was discussed with the griever before April 2nd.
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Ms. ~ley also testified that at no time was cmsideratim given to
having the griever work overtime to clear up the backlog because of the
financial constraints m the institutim. She said that there had been
occasionsin the past when employees had worked overtime in order to
clear up backlogs. She also said that the use of the money recovered
from the Mim to pay for overtime was not cmsidered because as far as
,-he knew the institutim was not recovering that mmey.
Mr. DeGrsndis also discussed the possible alternatives available to
f the institutim when the griever was absent m leave. He said that in
his opinion itwasnotpossible to transfer a C.O. to do the work on an
occasional basis because of the degree of trust which the inmate must
have in the classificatim officsr. He said that there was a cmflict
between what an inmate would expect in the two roles, and that he would
only consider it appropriate to make such a.transfer on a long term
basis so that a break in the roles couldbe established. He also said
that the key factor in choosing a replacementwouldbe the confidence
which could be placed in the person's judgment,
In the griever's opinion inmates would not be any more upset with a
persm changing roles between a C.O. and a classificatim officer than
they would be by seeing a person being a guardone day and an acting
supervisor the next. Mr. DsGrandis's view was that there was no
conflict in the perception regarding the roles that guards at various
levels are expectedtoplay. There was alsoevidence heardaboutthe
opinims regarding cmflict which may exist between the correctional
officer function and the Temporary Absence Programne qfficer.
.The issue is really the same in both grievances. The operative
words in Article 28.8 of the collective agreement and Article 10.1 of
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the memorandum of agreement (ES 5) both refer to the Employer's right
to refuse leaves where they "unduly interfere with the operating
requirements". Before dealing with the arguments placed before Us, we
should remark that both parties referred us to the decision in Broderick
(GOB al/771 for our guidance. We also cmsidsr that we should make some
general remarks about the way in which those articles should be
interpreted. In dealing with both Article 2a of the collective
agreement and Article 10 of the memorandum of agreement (Ex. 5). we note
that in the sections dealing with the,grsnting of leave the parties have
used the words "shall grant" or the appropriate form of the verb "to
grant" in ccnnection with "shall':. Further, the parties have stipulated
in Article 28.8 of the collective agreement and Article 10.1 Of the
memorandum of agreement (Ex. 5) B very specific ground for refusing
leave. We believe that 'the correct approach to be taken in intsrpzting
the provisions is to consider that the parties intended to'limit the'
discretion of the Employer to the specific ground set out for refu,sal.
That is, the agreement reached betwesn the parties (assuming notice and
any other requirements ralating to application were met) was that leave
must be granted unless the Employer could show that the absence would
"unduly interfere with [its] operating requirements". we believe that
this is the approach which was taken in the Broderick case (supra).
Atpages 5 and6 of the Broderick decision (supra) the board made
the following remarks:
Article 25.7 [now Article 28.51 requires that
the leave requested unduly interferes with the
operating requirements of the Employer. The
Shorter Oxford Bnglish Dictionary, 3rd qdition,
defines unduly ss:
1. Without due cause or justification:
unrightfully, undeservedly. 2. TO eXcesSi
beyond the due degree.
.c,
Absence will ususally always interfere with
operations to some degree. What is required is
excessive interference. . .
We donotthink it necessary to elaborate in
this manner on the test set out in the Article
itself. Whether an interference is undue will
dependon the circumstances of each case, and the
concept of 'undue' or~'excessivk' interference is,
we think, sufficient to guide those making
judgments in individual instances. In a large
bargaining unit, with many different kinds of
operatimal requirements, too specific a test would
rob both parties of flexibility.
[Portion in square brackets added.1
At page 10 of the decision the board refers to a different sort of
test:
absent a more detailed directin, applicatims . . . .
for leave must be assessed fairly and reasonably in
light of all the circumstances.
As we read the decision, that test was promulgated to'deal with a
situation' td which the Union leave provisions in the collective
agreementdidnotapplyandwhere there wasno.express direction that
leave could be denied only where there was undue interference with
operational requirements. In our view; the test in Article 28.8 of the
collective agreement and Article 10.1 of the memorandum of agreement
does provide the "detailed direction" adverted to in the decision, and
therefore there is no need to determine whether the assessment WaS
dme "fairly and reasmably in light of all the circumstances".
In general terms, we agreee with the Unicm's positim that the use
of the criterion of assessing the caseload on the night before lehve is
to be taken nullifies the purpose and effect of advancenotice. That
is, the Union and/or the griever is required to give sufficient notice
of his request for leave so that the institutim can plan es best It can
for his absence. The purpose of this notice is surely to try to offset
some of the, inconvenience and interference with the Employer's operating
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requirements, and by agreeing that advance notice should be given, the
parties surely contemplated that the Employer would take advantage of
the notice to plan as best it could to accommodate the absence. By
postponing the decision mtil the night before the leave the Employer is
frustrating the purpose of advance notice and is not taking advantage of
its ability to plan to cover the griever's absence.
We cannot agree in general terms that the financial constraints
that the Employer was under should in any way be considered in
c determining its ability to deal with these two leaves before us. In the
case of the leave under Article 28.5.1 the Employer was to be reimbursed
by the Micm. Surely an obvious purpose of such payment is to allow the
Employer the flexibility of hiring a~temporary replacement or.of paying
for any overtime which might be required to cqver the griever's job. If
the Union'is paying for the leave, then surely the Employer cannot argue
cost. Further, where the parties have specifically agreed that such
leaves will be granted unless there is un&e interference with operating
requirements, it would be unreasonable to allow the Employer to point to
the increased cost of granting such leaves as a reason for not granting
them once it has promised to grant them save for the cne~qualificaticn
adverted to.
We will now look at the particular situations before us in the
order in whichtheyoccurred. In our view, the Employer hasnotshown
that the griever's absence on February'22, 1984 would have unduly
interfered with its operational requirements. There was an employee in
place who was doing the qrievor's work due to the suspension which he
had been serving; the Employer didnot expect the griever to be at work
then until just a few days before the day on which leave was to be
taken; the Employer was not short-staffed at the time; and the griever
was not involved in any critical work which required his attendance cm
th~at very day. The evidence indicates that the griever was using the
week to re-adjust to the institution and to learn his new job. There is
no indication that the loss of on& day in that week would have
excessively interfered with that process or with the Employer's
operaticnal requirements.
The April 3rd leave situation is slightly different The griever
(
had to be dbsent the day before due tq a subpoena, and there is no doubt
that the ba~cklog in caseloadwouldaccumulate over a two day period.
.The leave for April 3rd had been known of for months and had been
arranged by the Employer's head office. The purpose was for the Griever
to take'part in cagoing employer-employee dialogue ccacerning working
ccndit1cns. It was not an unimportant or frivolous request As noted
in the Broderick case (supra), every a$s&ce from work.will
inconvenience the Employer to some extent; however, unless theunion
leave provisicms are to be frustrated in their purpose, something more
then the normal anticipated incavenience associated with absence must
be contemplated by Article 28.8 of the collective agreement and Article
10.1 of the memorandum of agreement. For example, an unanticipated
change in circumstances may create a situation where an employee's
absence unduly interferes with operational requirements; so may a
peculiar situation whichrequires the presence of the person who has
applied for leave cm the very day that the leave would be'taken. It is
impossible to consider every situation which may qualify as undue
interference. It is possible to say that the test of' undue interference
is not the same as a simple balance of convenience test .
'i,.
There were reasonable alternatives available to the Employer
L
regarding the April 3rd leave. The griever could have worked overtime
to deal with the backlog. There was sufficient notice of the absence to
try to obtain temporary help from other quarters. There was no evidence
to the effect that other employees in the department could not have
covered the workloa&- There .was no evidence about the inmate populatim
of the Toronto Jail a't the time and the numbers awaiting short term
classification. we have no doubt that it was inconvenient to the
Employer; however, there isno convincingevidence that the griever's
presence was so vital under the circumstances that the Employer's
operational requirements would have been unduly interfered with if he
were absent. At most, we can conclude that itwouldhave taken a few
days longer to get some short term inmates out of the Toranto Jail and
into others institutions and programmes. Since backlogs are not an
unusual feature of the Employer's Operation, end since the Employer had
ample time to plan for coping with this anticipated backlog, we cannot
conclude that the griever's absence alme would have unduly interfered
with its operatimal requirements,
Given all of the evidence before us, it would appear that the
Employer's primary concern was the number of Union leaves which the
griever was taking.
The collective agreement does not limit the number
of those leaves which can be taken, and it would not be unusual to find
one employee who was very active in the Union and required a number of
daysofleave. Iftheparties wishtolimitthenumber of those leave
days or toagree that some type of Union leave requests can be granted
at the discretion of the Employer, then they are frae tp~do so. Until
such express language is put in the collective agreement, however, the
parties must live with the terms of the agreement which they have made.
.
-.:
~_ ,* 3’ J; ,’ ..
21
In view of our decisions, we will allow both grievances and declare
that the Employer was in violation of the collective agreement and/or
the memorandum of agreement as alleged by denying leave to the griever
on the days in question. We didnot hear any submissions regarding
remedy from the parties, other than the remarks sad* during the opening
statements; therefore, we will only issue a declaration atthistime..
Should the griever wish to make submissions that any other remedy is
appropriate, we will allow him thirty days from the date of this award
to so inform the board and we will then entertain written submissions
frombothparties as to the appropriate scope of any other remedy or
remedies sought. Failing such application, the remedy will simply he
the declaration as set out above.
Ii DA!ED AT LONDON, ONTARIO TNIS 14th DAY OF November # 1985.
A=& Q&k
Gail Brent, Vice Chairman
B. Sdtzman, 'kenber