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HomeMy WebLinkAbout1987-0506.Leger and Legacy.88-07-21: . ONIARIO EMPLOYES DE LA CO”RONNE CROWNEMPLOYEES DE “ONTARIO GRIEVANCE . COMMISSION DE ;;yTI&MENT RkGLEMENT DES GRIEFS Between: Before: 0506/61 050-z/61 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLBHBNT BOARD * OPSEU (D. Leg&& P. Legacy) - and - Grievers The Crown in Right of Ontarlo (Ministry of Correctional Services) Employer For the Grie%oars For the EmDlover: Hearinas : N. V. Dissanayake Vice-Chairman F. Taylor Member E. Orsini Member A. Ryder Counsel Gowling & Henderson Barristers 64 Solicitors A. Arungayan Staff Relations Office? Ministry of Correctional Services June 1, 1988 These are two grievances relating to the employer's refusal to authorize a special leave of absence as a result of the grievors' failure to attend work cn February 8, 1987. The two .grievors had the absence charged against their vacation credits and they claim that by so doing the employer contravened article 55.1 of the collective agreement which reads as follows: 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 issue to be determined in the two grievances is identical, and consequently the same were heqrd together. The relevant facts are as follows. The grievors Denis Leger and Paulette Legacy are empioyed at the Sudbury jail and are classified as Correctional Officer 2. Each was scheduled to work the 7:00 a.m. to 7:OG p.m. shift on February 8, 1987. Leger lived in an apartment 1ocated;approximatily 1 l/2 miles from the work piace. On February ~8, as he went to the +r,,nc - -__... dzcr Cf the apartment building with the in;entir.n overnight. He managed to push the door open and oet fc his car ir. the parking lot. The car was buried I:. ez-7~. He cleaned and started the car, but got stuck in the heavy snow. It was still snowing ,at the time and 21s~ blowing. Leger went back to the apartment and called two taxi companies but was unable to get a taxi. There were no buses or other means of pubiic transportation. Leger called the jail and spoke to his sriii; Supervisor, Mr. Pedron. He explained his circumstances and informed that he will not be able to attend work. Mr. Pedron suggested that Leger try gerting a ride from another employee who lived close by. Leger calied that employees but there was no answer. The evidence of "r. Leger is that the road outside his apartment was net ploughed until 5:OO p.m. that day. Mr. Leger testified thatin the summer he regularly walked the 1 l/L miles to work, but that he did not consider doing so that day. Subsequently he learned that his absence cn February 6 had been charged against his'vacation credits and cn February 16 he filed an occurrence report as follows: "On Sunday February 8. 1587 9ecause of th2 mow storm, I was unable to come in to Xcrk. I am applying for special or compassionazf leave to cover the hours missed beca,usc of the storm. I am awaiting your reply." -1- to 15 miles from the Sudbury jail. On Febrcar~y E. 19k7 as she prepared to leave for work she fxnd both he:- front and back doors completely covered by the snow drift. Her attempts to push a door open were unsuccessful. She called the Shift Supervisor, mr. Blais, and informed him of her predicament and inquired if he knew of anyone close-by who could get he? to h'Ork. He did not. Then she told him that she will net be able to go to work that day. Blais said that he will book her "sick" for the day. However. Legacy pointed lout that wculd not be right because she was not sick. Mr. Blais stated .that he will leave it to the management to figure out how to mark her absence. Ms. Legacy hung UP after stating that she will try to see if she can find some means of getting to work. A short while later Ms. Legacy called work again and spoke to Mr. Pedron and inquired if there was some- one going to work for the 11:OO a.m. shift from the vicinity. who could assist her and he said that he did not know of anyone. She then called the bus company and was advised that buses were not running. MS. Legacy kept kicking at the doors all day and managed to get Out cf the house ?.f about 3:0(! p.m. Si7.e teetlfied that her r-cad was no: ploughed untli 5:'30 p.m. some days 1arer she made inquiries to ensure that her absence will net be marked as 'sick'. The office manager informed r.er that the day had in fact been charged against her vacation credits. She f.iied an occurrence report dated February 25, 1987, as follows: "I wish to appiy for special leave the day of the heavy ~storm on February 8. 1387. I was unable to get tc work that day due te being snowed in and the roads not being glowed will late afternoon." Mr. Al Hoosan. the Superintendent of the Sudburp jail, testified that on February 18. 1988, out of some 23 employees scheduied to work, 6 (including the two grievers) did not report because of the adverse weather. None of the 6 absentees were disciplined. Only the two grievors requested special leave under article 55. The others requested the absence to be charged as sither vacation or time in lieu. While Kr. Hoosan suggested that in cases of weather related absences the general practice ,at the jail is for the scheduling officer to ask the employee how he or she wished the absence to be treated, there is'" no evidence th,at such a choice was given to the two grievors. Both grievers were very firm in their testimony that they had not at any time requested or agreed :o have r!?eir Rfs~:::fe 0.7 tke 1s::: charged as vacatl?:,. MT. Hoosan testified as to how he reaci-ed :::e decision to deny the grievors' requests for soeci31 leave. He conceded that he had no personal knowiedgc of the particular circumstances faced by the grievers or any other employee on February 18 as a r2suit cf th2 snow storm. While admitting that he did not challenge the explanations provided by the grievor-s in z:?*ir respective ccc-xrecce repozcs. Mr. Tioosa:. scated ti.2: ?I, knew where the gr levers iived and that he “felr tney could havt come to work". He did not ask the grievcr.a to explain why they could not corns to work and despi:e not knowing their particular circumstances came to the conclusion that they couid have come to work. He admitted that in reaching this conclusion i-12 assumed that the roads would have been ploughed to enable the grievors to get to work. ~Mr. Hoosan's conclusion ~that the grievers cc.cld 'have come to work was based on several factors. With respect to Mr. teger he stated that two other correctional officers WhO lived' -beyond Mr. LPCp?r’S .:esidence and who had to pass within a few blocks of the Leger residence came to work. Mr. Hoosan testified that he had Iivrd in the Sudbury area 3 lono t1r.e azd that in his t::g,crierlcc "it ir, ;.cry celn,x tna: y.?'.. .i..' 'S storm that bat to prevent empioye*s goin; to work". With respect to Es. Legacy, Mr. Hoosan testlfit3 that I-... had the Security Officer investigate. He was advised ty the Security L- Occice+ _ that the Regional Department informed him that the highway from the area where Ms. Legacy lived was open, while the street where she lived was "rough but passable." The employer filed in evidence twc doctiments, the first a memorandum dated March 10, 1981. from Mr. Z. F. Benedict, Manager/Compensation & Staff Relations, re "Special & Compassionate Leave Provisions" addressed co the management within the Ministry and the secork, the relevant porcfons of the Personnel Policy & Procedures Manual relating to Special and Compassionate leave. Both documents state that, "normally" the special and compassionate leave provisions in article 55 are no: applied tc, inter alia, "weather conditions". b!r. .Hoosan testified that he generally followed these instructions issued to management in dealing with requests for speciai and compassiona.te leave. In cross- examination he admitted that the directives in the two documents relating to weather conditions "influenced. but not totally" his determination wirn respect tc :r~e -P- The parties are agreed that article 55 crants tr.5 employer a discretion in determining whether ro apprs!'-r a request. for special or compassionate leave. COUnS+: for the employer agrees that this discretcoc must bc I exercised reasonably and without discricination . ar.a submits that the employer has done so. E e f 'U r t h e z- submits that the onus is on the qrievors to provide t.i.5~ ei3piGyiL *-2Kh ai; Oc thy c facts an: ;sr~ic~~~=c ::I support of their request for leave and that i;ie en;lo;~~r is entitled to apply very.strict standazQs in assessins the merits of each request. Counsel for tt..s grievers ~submits that the discretion conferred by article 55 is not uniimited and must bs exercised. properly a s 0 reasonably. lie does nor: .ask the board to go so far as to find that the grievers' circumstances entitled then to special leave under article 55. However, he urges the Board to find that the process of exercising the discretion was seriously flawed. The Board agrees that it ought not to substit?lte ? its judgement for that of the employer, where the employer has exercised its discretion in a manner that is not arbitrary, discriminatory or in bad faith. In C.P,SEU (Piete~; M t~~~yysyn.ttes.t ana .r:~.e. r!lnl.+rry of T.ran,s.ppr~~.+:ion a:iL i~nm*nl.ga~~on5 ( -1 1 ; ,' ; ; '. ;, < :: c <. I- 1; , -;- set out the f;;iIowing criteria for the proper exercise of discretion: 1) The decision must be made in good faith and without discrimination. 2) It must be a genuirie exercise of discretionary power, as opposed to rigid policy adherence. 3; Consideration must be given to the merits of the individual application under review. C! Al1 relevant facts must bc rrreii.crca _ Lu..+* --*-- .e?.c conversely irrelevant consideration. must bs rejected. In this case, the Board does not believe the employer satisfied anything other than the firs: cf the dove criteria. The Board is particularly trsubled by the employer's complete ,failure to make a reasonable attempt to investigate and consider each grievor Is individual circumstances to arrive at a reasoned decision. From all of the evidence, it ,can fairly be said that Plr . Hoosan made his decisions soiely on the basis of .his general familiarity with the winter weather in Sudbury and paid no attention whatsoever to the individual circumstances. T~I e, qri.evors provided their reasons for absence in their occurrence reports. If the employer needed any further explanation or further particulars :t is 1KS responsibiiity CC orn13r:J rl~:. Tf‘iS 'KdS !-.C? 6-:;c. irl t.ht; con:rary ',.?.I. '>- .: ; 1; i; 2 t 5 .*' 7 1 -- denied witho,J: any lnguiry being made of the grievers, who would have been rradllj- accesslb,;e co zx.2.;srr.er.z a: the work place. Mr. fioosan relied on the fact that other employees came to work from further distances but upon questioning did not personally khow what mode Of transportation they used. For instanc2. when it was suggested that one such employee came in a four-wheei drive vehicle, >!r. Ecosan admitted he tiit nor know how he traveiled. He 'assumed that the roads ware plo-ghef but the uncontradicted evidence before the board is char the roads ,were not ploughed until 5:00 p.m. Xr. Hoosar. felt Ms. Legacy could have come to work because the highway was open but the evidence is tha: she could not even leave the house until 3:00, p.m. The Board' notes that the employer's failure to gather and consider the relevant facts not only flouts the administrative law concepts relating to the proper exercise of discretion, but also is cieariy contrary to the Ministry's own view of how article 55 should be applied as set C"t in the poiicy directives that the u empioyer was purporting to be foliowing. Thus the memorandum dated March iii, i5&i referred ro a.beve states hct gives the employer wide discrekion in deciding whether to grant special Or compassionate leave, this ilscretron z‘~st ne exercised in a re;?sonablc ,a n d nondiscriminatory manner. It is extreacly difficult, as you can well undarssani, tc: reduce ,the concept of "rtasonabirnrss" tc 3 single formuia or set of Instructrons which can ba easily applied in evsry ~25,;. 1 n : i: 2 finai analysis manaac-ment mcst si-~g..xuZ.l and. -.A- Cunderlinicg addedi While the failure to lnvestlgate or cor.s1(Ler L:ie individual merits of each grle,vor's request ior ihavt by itself renders the employer’s exercise 0: discretisn defective, ail of the circumstances ir.dicai;e~ ChaL :.:.: internal directive that "article 55 does not normally amly to weather conditions" inf'*,-n--" t.h.e employer As....--- much more than it is prepared to admit. The evidence suggests that it was the existence of this policy that led ,Mr. Yoosan to be so disinterested iz t.35 grl;-7ors ' personal circumstances. The Board has previously held that deniai of leave under article $5 by an apFiication of an arbitrary policy cat w2arkr'~;riditicns tire not covered by thar article and wi thO:dt -or,;<.2e:.in; :'r,,: -12- extent that the employer relied on such a policy to f.::~ exclusion of the merits of the requests of the grievors, the employer did not properly exercise its discretion as contemplated by the collective agreement. In summary , the Board concludes that ~the procedure adopted by the employer indeallng with the grievers' requests under article 55 was seriously flawed, by its failure to gather and ccnsider the merits cf e8rh request and by its application of an arbitrary rule that article 55 does not apply to weather conditions. While adverse weather in every case will not entitle an employee to special leave the employer must consider ali of the relevant facts in deciding whether the particular circumstances faced by the applicant entitles him or her to special leave. The employer failed to consider these particular circumstances because of its reliance on an arbitrary rule. The Board further observes that the vacation credits accumulated by an employee belongs to the employee alone. The employer has no authority to unilaterally deduct from or reduce these earned credits. That is what was done in the case of the two grievers. -13- 198s as a day of special leave under arricie 55 v:l:t respect to each of the two grievors. It follows frorr that direction that each grievor is entitled to have the vacation credits deducted with regard’to the absence on February 18. isee. reinstated. Dated at Hamilton. Ontario this 21st. day of July, 1986. Nimal V~. Dissanayake Vice-Chairman. ‘- -77?~-- ___ ---em- F. Taylor Member E. Orsini Member