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HomeMy WebLinkAbout1985-0193.Stacey.87-09-15IN THE MATTER OF AN ARBITRATION UNDER 1 THE-CROWN EMPLOYEES COLLECTIVE BARGAINING ACT BEFORE THE GRIEVANCE SETTLEMENT BOARD BETWEEN: OPSEU (Carl Stacey) - and --. Grievor THE CROWN IN RIGHT OF ONTARIO (Ministry of Correctional Services) Employer BEFORE: FOR THE GRIEVOR .: .R.J. Roberts Vice Chairman I. Thomson Union Member I. cowan Employer Member N. Roland : ,Barristers & Solicitors Cornish & Associates FOR THE EMPLOYER: J.F. Benedict Manager Staff Relations & Compensation Human Resources Management Ministry of Correctional Services HEARING i February 13, 1987 P _~. - ~- -_. -_-~._‘-..- DECISION This, is a case which arose in March, 1985. Basically, the grievor was denied special leave under Article 54.1 of the Collective Agreement, which reads~ as follows: 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. In his grievance, the grievor complained that the Ministry erred when it denied him special leave under this provision to cover an absence, which in the submission of the grievor, was caused by severe wea'ther conditions. For reasons which follow, the. grievance is denied. The evidence indicated that the grievor was a long-term employee, having been employed with the Ministry for over 15. years. The a years immediately -preceding, the filing of his grievance were spent as a Correctional Officer 2 at the-Quinte Detention Centre. This institution is located in a snow belt area in Napanee, .Ontario. Then grievor,, lived near Picton, : Ontdrio, which was 28 miles from the institution. On March 4, 1985., there was a severe winter storm. ~The area was buffeted by high winds with blowing snow and freezing rain. The storm lasted all day and the Ontario Provincial Police 2 advised motorists that if they did not have to drive they should stay off the roads. The grievor was home for most of this day. ~.He was scheduled cT" ..' .,.,~ to work the 11:OO p.m. to 7:00 a.m. shift. At about 6:30 p.m., the grievor shovelled out his driveway, which had about 3 feet of snow in it. By 9:30 p.m., the winds had drifted the snow into the driveway once again and the grievor again had to shovel it. The roads in the Mediate vicinity of the grievor's home were not plowed but they were ~passable.' The grievor testified that shortly after he re-shovelled his driveway, he left for work. As usual, he headed into Picton to ;:i+. pick'~up a fellow Correctional Officer.;' Mr. Grey. It took the \ grievor the better part of half an hour to drive about three mi.1.e-s into Picton. L By~this time, the .grievor s+?ated. freezing rain was coming down and the parking lot where he was to meet Mr. Grey was so,icy that he had to park at the side of the road. At that point, he and Mr. Grey decided to telephone the Provincial Police and enquire about road conditions. They still had.25 miles to go. According to the grievor, the officer to whom he spoke advised him that road conditions~ were very bad and that where the road was clear, the freezing rain had coated it with ice..' According to the grievor , the officer's advice was that if they did not have. to drive, they should stay off the roads. Immediately after this, at about 1O:OO &p-m., Mr. Grey.telephone 3 work and .advised that he and the grievor would not be in. They then returned to their homes. on March 5, the grievor made application to Mr. G. Meyer, the'superintendent of the Detention Centre, for ",a oompassionate day for March 4185 due to the severe weather conditions." When " Mr. Meyer received this request, he sent,a memo to Mr. D. Tocher, one of his subordinate managers, requesting a recommendation and additional information. On March 9, Mr. Tocher sent a written reply to Mr. Meyer stating that the special or compassionate leave $&isions of Articles 54 of the Coilective Agreement were not applied to weather conditions butt that he had granted a leave-of-absence charged against the grieyor's statutory holiday time. It came ous.in the evidence that the advice given by Mr. Tocher concerning absences due to weather conditions was derived from a memorandum from.Mr. J. P, Benedict, Manager, Compensation and Staff Relations,'_which had be.+ circulated, inter e to all superintendents, on March 10, 1981. This memorandum read as follows: March 1.0, 1981 1 MRMORANDUM TO: Deputy Minister Executive Directors Branch Heads Regional Directors, Institutional Programmes . I’m ‘... 4 RE: Regional Administrators, Probation & Parole Superintendents, Institutional Programmes Area Managers Personnel Administrators Regional Training Advisors SPECIAL 6 COMPASSIONATE LRAVE PROVISIONS ~. In lightof negotiated changes to Article 54 '(Special & Compassionate Leave) .,-of the Collective Agreement there,is a need to state more clearly the application of its provisions in order to maintain consistency throughout the Ministry. Although Article 54 and Section SO(l) of the Regulations under the Public Service Act gives the employer wide discretion in deciding whether to grant special or compassionate leave, this discretion must be exercised in a reasonable and nondiscriminatory manner. It is extremely difficult as you can well understand, to reduce the concept of "reasonableness" to a single formula or set of instructions which canbe easily applied in every case; In the final analysis, management must give full and proper consideration to the particular merits of each application for special and compassionate 1e:ave before deciding to grant or deny the leave. Without limiting the generality of then foregoing, and depending on the particular circumstances, the following ~types of considerations may be taken into account: 1. The needs of the work place (eg. staffing and operational requirements) 2. The importance of the ,reguest to the employee and the hardship caused by denial. 3.' In family matters, the nature of the re1ationshi.p and the urgency of the call on the employee's services by family -' obligations. 4. Whether it was possible ""or .appropriate for 'other arrangements to be made by the employee. -5. Whether -the denial or granting of the leave would constitute a form of discrimination, i.e. similar cases should be "treated alike. Normally, however; the provisions of Article 54 are .not applied in the following circumstances: - religious holidays - weather conditions : .i : ; :; ; : 5' - self development &i written examinations - an extension of maternity leave -~mandatory referrals - sickness of family members~(subject to above mentioned circumstances 1 - weddings -~ car breakdowns -. citizenship applications - extension of bereavement leave - medical appointments - moving - legal matters - attending graduations ~.. -.;I.*~ - For these situations, employees may, of course, request a leave of absence under other articles of the Collectives Agreement, i.e. lieu days, .vacation, leave without pay, etc., but the provisions of Article 54 or Section 80(l) of the Regulations would normally not be applicable. Managers are obliged to make a serious,and diligent enquiry into the facts of each case before rendering a decision to grant a leave of absence under aticle 54 or Section 80(l) of the Regulations and to consult with Regional Personnel Administrators before such^:d leave is- granted. Copies of the employee's written request for such leave and the manager's decision (Leave of Absence Form) are to be retained on the employee's local personnel file for audit purposes. ? This memorandum supersedes that of October 30, 1979. Please place it in the Ministry Personnel Manual, Section E, Employee Benefits. J. F. Benedict Manager Compensation & Staff Relations. _ : .- _ I.; It wasI for this reason that the grievor's leave was cha,rged against his statutory holiday time. When the grievor received management's reply, he requested m. Toucher to reconsider his application and made out a more , 6 detailed report setting forth the Weather conditions eat he faced on the evening in question and the advice he received from ~' the Ontario Provincial Police. Mr. Tocher then wrote on the bottom of this request that he did not support it because other employees reported for duty on the grievor’s shift on March 4, *a.~ 1985. He then brought this request to Mr. Meyer and Mr. Meyer agreed that it should be denied. The grievor testified that when he saw Mr .Tocher's comment at the bottom of his request he felt that Mr. Meyer believed that conditions were not severe enough to . prevent h& from getting into work. : After this, Mr. Meyer told the .grievor that Article 54 did not normally apply to weather conditions. The grievor replied that he saw-a memo saying that it co~uld. Thereafter, on March 15 the grievor filed the grievance leading to' the present .proceeding.. ' It wasunclear in the evidence whether the memo to wM.Fh the grievor alluded in his conversation with Mr. Meyer was located before or after he filmed his grievance. .In any event, it apparently was located by.Mr. Meyer. It read as follows: MEMORANDUM TO: Area Managers, Facility Administrators, Southeast Region. FROM: J. A. Upper, . . Regional Manager, Human Resources, Southeast Region. 7 RE:-. Adverse Weather Conditions with reference to the recent iSSUing of a policy on the above subject (attached for your convenience) and the subsequent discussions at E.R.M.T., the following is the agreed upon application of the policy for the treatment of employee absences that are the result of adverse weather. Absences may be charged to one of the following: - vacation credits - discretionary/special and compassionate leave - compensatoryleave (e.g. accumulated overtime, statutory holidays; etc.) -'leave without pay NOTE: The Short Term Sickness Pian cannot be used. If an employee arrives late, the manager may use discretion in determining whether the amount of time is significant enough to apply the above. Ifs an emplbyee.wishes to depart'early because of adverse weather,'the amount of leave should-be charged to one of the above. No leave has to be charged when the delegated official decides that early closing is advisable for an entire office, etc. ! Management should consult with their .Hunian Resources representative in those.,ipstances where it -.is questionable if the adverse weather policy is applicable. ~J. A. Upper, Regional Manager, Human Resources, Southeast Regional. C.C. A.P.A.'s Regional Office Management Team This memo indicated absences due to adverse weather conditions "may be charged'* inter &,,to special or compassionate leave under Article 54. ..3 8 Mr. Meyer testified that, in essence, he,djd not change his mind in light of the discovery of the above memorandum. He said that he would have considered granting special or compassionate .. leave if the roads had been closed within a ten to.fifteen mile vicinity of .Napanee. He indicated that he also would consider it if there were some calamity due to weather conditions that the employee had to deal with , citing as examples a roof falling in on a house or the flooding of a basement. On the night in question, Mr. Meyer testified, roads were open. They were not shut down. Despite the storm-all ~0th er employees made it into work. He indicated that there were a total of six employees on the grievor's shift who lived 25 miles or more away from the institution and of these, only the grievor and Mr. Grey failed to report for duty. These'people lived in Kingston and Belleville. One other Correctional Officer on the grievor's shift reported into work from Cloyne, which was 60 miles away from the institution. It was essentially these employees'to whom &r. Tocher referred when he indicated that he did not support the grievor's request because o&her employees reported for duty on the grievor's: shift on the night in question. At the conclusion of the hearing the. parties made submissions regarding the extent to which this Board might review the exercise of management discretion under,a specific provision of the Collective Agreement such as Article 54. In light of a recent decisionof the Board on similar facts and arguments, Re O'Brien and i i, 9 Ministry of Correctional' Services (1987), G.S.B. #1157/86 (Gands), we'd0 not need to make an extensive review of these submissions. Dike the panei in that case, we incline to the view that unless the Collective Agreement specifies ,otherwise, the parties should be regarded~ as having contemplated that a .discretion under a specific provision would be exercised reasonably. .‘S&W& at p. 7. In O'Brien, the Board concluded that management had adopted an unreasonable procedure in evaluating the request for special or;compassionate leave based~' upon weather conditions of another Correctional Officer at Quinte Detention Centre. This request did not relate to the same.storm as the grievance in this matter. Commenting upon the testimony of Mr. Meyer in that case, the Board said: . It became. apparent during the testimony and cross examination of Mr. Meyer that the only basis on which he would have granted special leave was if there had been some natural or other catastrophe associated with the weather or the weather problem had been something of the magnitude of a hurricane. In other words, he would never have utilized the special leave provision of the collective agreement if the only impact'of the weather had been to prevent the Grievor from attending work. Time and time againMr. Meyer, ins his testimony, emphasised that weather conditions were not an acceptable reason for missing work and for receiving special ' leave. He stated this in verbal'testimony at the hearing and his ~reply to the Grievor's request for the leave to be granted was "weather conditions do not apply". . ..g. at p. 4. 10 Because Hr. Meyer applied an arbitrary 'decision-rule=, in the viewof the Board, and did not make "a reasonable attempt to investigate the situation and arrive. at a reasoned decision," g. at p. 11, the Board concluded that an unreasonable procedure has been followed. The facts of the present case 'are different. Here, Mr. Meyer did not end up applying an arbitrary rule against granting special or compassionate leave to cover an absence due to weather conditions.. When he reconsidered the application of the grievor in light of the discovery of the.memorandum of January 11, 1985, he gave. full consideration to the merits of the grievor's situation. On the record, we have no hesitation in concluding that Mr. Meyer came to his decision,to refuse special or compassionate leave reasonably and upon sufficient grounds. Not .only did he consider.the circumstances of the grievor and weigh them against'. the needs of the institution, he also weighed other relevant criteria such as the ability of other employees on the grievor's shift to make it into work over equally long or even longer ‘i-. distances. As well,~ he indicated that there were circumstances in which he might consider it to be appropriate to award special or compassionate leave due to weather conditions, for example, if it were impossible for the employee to:.get into work because the roads werd.closed. :>. 11 Nor do we think that it was unreasonable for Mr. Meyer to evaluate the grievor's request against high standards. This was not a mere request for a leave of absence which might demand the application of more liberal criteria. The grievor was granted a leave of absence. The question before Mr. Meyer was very narrow. It was whether the leave should be paid or unpaid, i.e., whether the Ministry should pay the grievor despite his absence from work or charge it to one of the grievor's accumulated entitlements such as vacation credits or lieu days. It seems evident that it would not be unreasonable to apply a more conservative approach in evaluating a request that a leave be paid. And this is : reflected in the nature of the leave to be granted under Article 54.1. It is to be granted "upon special or compassionate grounds." It is not for this Board to determine whether Mr. Meyer's .,.. ,decision was correct. See Re Young and Ministry of Community and Social Services (19791, 24 L.A.C. (2d) 145 (Swinton). In that case, the Board stated,,~"An arbitration board . . . must decide whether the employer has acted reasonably and without discrimination and has turned its mind to the merits of the,particular request. If satisfied that these criteria have been met, the board must deny the grievance, even if it disagrees with the result reached by the employer or if it might have reached a decision other than that reached by the employer. 5 The board's concern is ~. .:;:.:..; ; j. 12 the reasonableness of the decision, not its 'correctness' in the board's view. Such an approach is the proper one to adopt in situations such as leave of absence cases, where the collective agreement gives.the employer a broad discretion and where the board has less familiarity than has the~employer with the needs of the work place." Id. at pp. 147-48. If, as we have found, - management exercised its discretion in a reasonable manner, our jurisdiction is exhausted. 1 '2. The grievance is dismissed. DATED at London, Ontario, this 15th day of September, 1987 Vice: Chairman wI. Thomson Member _.