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Home My WebLink About1986-0672.Gillies.88-06-24ONTAil, CROWN EMPLOYEES GRIEVANCE SETTLEMENT BOARD BetWSh: Before: IN THE MATTER 08 AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEC (William Gillies) -and- The Crown in Right of Ontario (Ministry of Correctional Services) / For the Grievor: For the Emlover: J. Forbes-Roberts F. Taylor 0. Wallace Grievor Employer Vice-Chairman Member Member C. Dassios Counsel Gowling an$ Henderson Barristers and Solicitors v J. Benedict Mgr . Staff Relations & Compensation Human Resources Management Ministry of Correctional Services I Hearinq: November 3, 1987 1 DECISION This case involves the denial, of a request for a day of special or compassionate leave under Article 55 of the col:ective agreement. Article 55.1 states: 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. The facts leading up 'to the request are as follows. The grievor is a Correctional Officer. II ("C.O. ii") at the Maplehurst Complex in Milton, Ontario. .Also employed as a C.O. II at this Institution 'was Mr. N. Boucher. He was well lcnown to virtually all the staff as a chronic alcoholic. At one time or. another, all had either helped "dry oilt", or talked him out of suicide while he was in a drunlcen depression. He was in fact absent on a long term income protection plan as of January, 1986. Sometime over the course of the May 24, 1986, Mr. Bouche? finally died of his alcoholism. The Deputy Superintendent, Mr. I. Leithead, learned of the death from the Police on Monday, May 26, 1986. He immediately pasted a Memorandum announcing the death and indicating th-at the funeral would be held i n Pembroke on Wednesday, May 26th The next day, a second Memo was posted indicating that the Institution would provide a fifteen (15) person vehicle and driver to transport staff to the funeral, This was free of charge to the employees, and ultimately four (4) did attend, the grievor being one. One May 27th the grievor sent the following Memo to his Supervisor: Sir, 7 request special leave to attend the funeral oaf my friend and fellow staff member Norm Boucher. If this isn't possible, then I request a holiday, and finally i will request lieu time in order to attend May 2Sth. By reply, dated June 3, the grievor was granted the option of one lieu da-y. On June 30th. the grievor filed the instant grievance objecting to the denial of compassionate leave. Xn his evidence, the grievor claimed to have had an unusually close relationship with the deceased. .He had kno.wn the deceased for nine (9) years and had socialized with him. The grievor also testified that he I' . ..does not deal well with death. It affects him emotionally." Under cross examination, the grievor agreed many, if not most of the Institution's C.0.s had helped the deceased with his alcohol related problem, and that his role in that respect had been no different from the others. Nor was he aware of any employee ever being granted compassionate leave to attend the funeral of a fellow staff member. 3 The main thrust of the grievor's complaint is that his request for compassionate leave was not properly and adequately considered. He was not questioned by Management members and felt that the true nature of his relationship with the deceased was not sufficient consideration. Mr. Fred Ducheneau testified on behalf of the Employer. As Superintendent of the Institution, he was the Minister's .designee charged with ruling on the grievor's'request. Ml-. Ducheneau made his decision to deny the request on two (2) bases. First , .the grievor's situtation did not fall within the parameters of the Bereavement Leave section, Article 48. Ducheneau did not wish to artifiaily expand Article 4s by granting what would be in effect bereavement leave for. the funeral of a,person not-specifically listed. Secondly, and more importantly, in a Memorandum dated March 10, 19Gi, this Ministry had issued fairly comprehensive policy guidelines on the agpropriate application the special and compassionate leave provisions of the agreement. The major factors t&en into account were (I) the degree to which the event was outside the individual's control, (2) whether or not the situation constituted an emergency, (3) whether there exists an alternate method of securing the desired time off, (4) consistency of policy application, and (5) the needs of the work place. On the basis of these factors, the grievor's request was rejected. it is worthy of note that no one has ever been granted compassionate leave to attend the funeral of 4 Union counsel argued that Management failed to act reasonably, did not give adequate consideration to the grievor's personal circumstances, and did not appropriately exercise its jurisprudentially dictated discretion. The Employer argued that its discretion was properly exercised in an honest and non-discriminatory fashion, and therefore, its reasons were not even reviewable. However, in the event that they 'were, the instant requested leave of absence was not contemplated by Article 55. :t was argued that the specificity of Article 49 (Bereavement Leave) overrides the generality of Article 55, and that the Union was attempting to create in Article 55 a "fudge factor" for Article 4;. The Union reiied on two (2) G.S.B. decisions, re: O.F.S.E.U. (O'Brien;, 1157;65, and re: O.P.S.E.U. (Gi::iesj, 2?4:;81. Gillies (supra) is of little assistance to this Board. IY: that ca5e, the request for compassionate leave was EGi considered at all. At page G of the Gillies award, Vice- Chairman Brent specifically states: This case is therefore unique, and the cases dealing with the manner in which management ought to act in the exercise of its discre- tion under this article are really not of much assistance to the Board. (emphasis added) The instant case is precisely about the manner in wh:Ch management ought to act in the exercise of its discretion. 5 The O'Brien (supra) decision deals squarely with this issue. At page II,, Vice-Chairman Gandz states: In our view, Lake Ontario Steel and Banson suggest minimal standards of procedural reason- ableness. In exercising its discretion, employ- ers must: a. make reasonable efforts to gather relevant facts as they apply to the particular case in question; b. apply,some reasonable decision rule which is not arbitrary or discriminatory; C. make an honest effort to make a decision between nossible alternatives; d. act consistently with the decision that was made. (emphasis added) Anything less than this does not, in our view satisfy the obligation to exercise discretion. For arguement's sake, accepting these criteria as correct, did the Employer run afoul of this standard? The grievor's memo supplied all of the relevant facts. 3e fervently wished to attend the funeral. The nature of his relationship with the deceased is a red herring. The parties have in Article 49, specifically codified the class of individuals for whom paid bereavement leave will be granted. Close personal friends are not amongst them. We find the Ministry guidelines to be neither arbitrary noi discriminatory. Indeed the guidelines baldly state that they must be administered in a "...reasonable and nondiscriminatory manner." While suc:h a' statement is easy to l G make and hard to follow, we find on the evidence that in this case, the Employer succeeded. The grievor's memo laid out the possible alternatives, and we find that they were considered within the framework of the guidelines. The evidence was clear that all employees were treated in the same manner. None were granted compassionate leave. The grievor agreed that he was unaware of any employee being granted compassionate leave to attend a friend's funeral. Therefore, the prescribed consistency is present. Finally, one milst consider the nature of the Article. k purposive reading suggests what is meant to shield an employee's income against necessary but unexpected absence. It Is not concexed so much with the leave as i* is with whethex or not the leave is paid. It was not, strictly speaking, necessary for the grievor to atiend the funeral. Re wished to, and the Employer bent over backwards to accommodate this wish. However I we do not find this to be a situation that the parties intended to be covered by Article 55 of the collective agreement. The grievance is hereby dismissed. Dated at Toronto, this 24th day of June , 1998. D.J. Forbes-Roberts, Vice Chairman F. Taylor, Member D. Wallace, Member