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HomeMy WebLinkAbout1987-1528.Ford.88-08-24’ EMpLOY6SDEU COURONNE OEL’ONTARIO \ C@blMISSION DE SETTLEMENT REGLEMENT DES GRIEFS 1528187 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (D. Ford) and Grievor I The Crown in Right of Ontario (Ministry of Transportation and Communications) Before: T.H. Wilson Vice Chairman I. Freedman Member F.T. Collict Member For the Grievor: A. Ryder and M. Milczynski Counsels Gowling & Henderson Barristers and Solicitors For the Employer:, D. Francis Counsel Winkler, Filion & Wakely Barristers and Solicitors Hearing: February 17, 1988 f. DECISION The grievor’s five year old daughter needed surgery. Her doctor originally scheduled it for June 1, 1987 at The Hospital for Sick Children in Toronto. Both the grievor and his wife are employed by the Government of Ontario. He works with the Ministry of Transportation and Communications and his wife works with the Ministry of Natural Resources. The child’s doctor advised the parents that a parent or family member should be with the child at all times to bring about a quicker recovery and that they should anticipate a week to ten days for recovery after surgery. It was major surgery and was scheduled almost a year in advance. By staggering compassionate leave, days off, etc. and with the child’s grandmother’s help, the parents. made arrangements for a relative to be with the’young child at all times during her stay at hospital. The grievor and his family live in Orillia: In fact, although the surgery was postponed two days, the family was able to have an adult member present at all times . The grievor and his wife both applied for compassionate leave under Article 55 of the Collective Agreement. Natural Resources granted the wife’s request. Transportation and Communications refused the grievor’s request. The grievor substituted days from his overtime bank although he continued to assert his claim for compassionate leave. It is against the refusal of compassionate leave that he grieves. - 2 - The relevant provisions of the Collective Agreement are: ARTICLE 55 - SPECIAL AND COMPASSIONATE LEAVE 55.1 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. 55.2 The granting of leave under this Article shall not be dependent upon or charged against accumulated credits. The grievor filed his application for leave on April 27 for June 1, 8 and 9. The grounds given in the letter were: , “Since my daughter has to go to Toronto for surgery on the 1st of June and will be there for 7 - -14 days; my wife has the week. of 1. - 7 of June, I would like to cover the rest. Since she (my daughter) is only 5 years old I think one of her family should be there with her.” His request was not approved and the District Manager signed a letter tb the grievor stating as follows: “Dear Mr. Ford: Re: Compassionate Leave We have received your request for Compassionate or Special Leave on June 1, 8 and 9, 1987 due to your daughter-s scheduled surgery and are ‘sorry to advise that it is not approved. This type of leaver is meant to cover such situations as personal and family emergencies which can vary in nature. Any events that are planned in advance are not considered to meet the criteria of Compassionate or Special Leave and are meant to be covered by vacation. we certainly agree that a family member i -3- should be with your daughter at all times and we wish that all goes well during her surgery and a quick recovery. Yours truly, D.A.D. White District Engineer At the time that White made this decision he had a Memorandum on the subject matter of compassionate leave from the Regional Director for the Northern Region, J.E. Hefferman (850507) which White himself had subsequently issued to all Staff in District #ll Huntsville. It reads as follows: MEMORANDUM TG: ALL STAFF - NORTHERN REGION 'RE: SPECIAL AND COMPASSIONATE LEAVE DISCRETIONARY LEAVE The following guidelines are provided to ensure that there is consistency in granting such leave throughout the Region. Since there are a number of variables, each case is to-be weighed on its own merits. The authority to approve such leave lies with the District Engineer or Manager. This type of leave may be granted up to 3 days with pay in any calendar year. The granting of this leave is not conditional upon the availability of the employee's vacation or other accumulated credits including short term sickness. Special or Compassionate Leave including Discretionary Leave for Management is granted for: 1) Unforeseen personal or family emergencies; 2) Special and/or Compassionate reasons. The following are examples that are not generally considered as meeting the criteria of emergency, special or compassionate: :, F - 4 -' 1) 2) 3) z; ;; 8) Medical appointments - prearranged or predetermined, inclusive of the travelling involved to receive special treatment. Moving household effects. Weddings. Attending graduation. Legal matters of any nature. Attending special'courses or writing examinations. Religious holidays (Directive B-3 dated 78 10 06) Attending funerals for relatives where Bereavement Leave is not applicable. Procedure The employee must request the leave in writing and authorization must be received prior to absence from work. The request should state the reason and include supporting documents. Where such is. not possible, or impractical, prior verbal approval must be received and a written request submitted as soon as possible. The request for any type of leave should be directed to the immediate Supervisor who i's responsible to ensure the . request receives priority. NO employee shall absent himself from work unless the required authorization has been .previously obtained. J.E. Hefferman Director of Northern Region." This document was generated as a result of the concern of o.ther Regional Engineers and'Managers over fairness to all employees in the application of Article 55. At the time of the request, White did not know that the grievor's wife worked for the Ministry of Natural Resources. It is interesting and instructive to note at this point the guidelines used for Article 55 by the Ministry of Natural Resources: Criteria Such leaves of absence should be granted when an 1 I s - 5 - employee is in a situation deserving of sympathetic treatment, i.e. when there are unusual distressing circumstances affecting an individual which necessitates absence from work and the absence is not more appropriately covered by other leave provisions in the Regulations under The Public Service Act of in the Collective Agreement. It is not the intent of the Special Compassionate Leave provision to supplement the bereavement leave negotiated by the parties and described in the Collective Agreement or as defined in the P.S.A. (e.g. travelling time, settling of estates, etc.). In circumstances similar to those described above. employees should be encouraged to use any accumulated leave credits they may have available i.e. vacation, overtime, management compensation. Leave without pay should also be considered. Managers should carefully review the circumstances surrounding any requests for leave under Article 55 of the C.A. or Regulation 74(l) under the P.S.A. and should not recommend leave for situations already covered by other provisions unless the individual . circumstances are extraordinary or of an emergency nature. White testified that if he had known that the Ministry of Natural Resources had under its guidelines granted compassionate leave to the grievor's wife under the same circumstances, he would have contacted ,Natural~ Resources to find out what facts they had decided upon and advised them of different facts from what he had been given. At that point, he would have referred the matter to the Regional Director since he believed that the two Ministries should be making the same decisions. It would.have eventually had to be resolved at the Deputy Minister level. In explaining his own decision, White testified that he considered the merits of the request and in particular the - 6 - Guidelines in existence which set out “unforeseen personal or family emergencies”. He said that recently he turned down a request for three days leave where it involved a pre-scheduled stay at Princess Margaret Hospital. He explained that he understood that the factors are whether the employee has no control over the situation and he has to take time off. Article 55.1 was not appropriate because it was a planned situation, not an emergency and could not be planned in advance. In cross- examination, White was asked if the compassionate factor was relevant and agreed that it was but on the facts of this case he did not consider it compassionate but rather a paternal factor. He did not consider it his business to make enquiries beyond what was in the application. Union Counsel brought the Board’s attention to a ,,~~. decision of Vice-Chairman Verity, Kuyntjes v Ministry of -2- -- Transportation and Communications (G.S.B. File #513/84) in which he examined the minimum standard of administrative justice applicable to ‘the discretion of management under Article 55. These were set out at page 16 of the decision as follows~: 1) The decision must be made in good faith and without, discrimination. 2) It must be a genuine exercise of discretionary power,,as opposed to rigid policy adherence. 3) Consideration must be given to the merits of the individual application under review. 4) All relevant facts must be considered and conversely irrelevant considerations must be re jetted. -7- Counsel for the Ministry agreed that these were the correct principles ‘of review by the Board. The union’s position was that White by focusing on the factor of pre-arrangement as determining the decision had fettered his discretion. Article 55.1 does not in itself contain any such restriction. The union Counsel also questioned the correctness of the examples given by the Guidelines of the Ministry of Transportation and Communications and furthermore White misread them by characterizing surgery as a medical appointment. In the union’s view, this was clearly a compassionate circumstance and White’s otherwise sympathetic letter and approval of the use of the overtime bank by the grievor showed such recognition. The Counsel for the Ministry did not agree thatsurgery for an employee’s child was -architecturallycompassionate. In that regard I note the comment of Vice-Chairman Rayner in Xavier v. Ministry o.f Government Sources (G.S.B. File No. 583/82) in which at page 8 he cautions that the “Board makes no observation as to whether illness in the family is in general sufficient grounds to entitle one to compassionate.leave and the Board makes no comments as to any discretionary power the Employer may have in this area, since argument was not addr’essed to the Board on either of these two points.” Counsel for the Ministry submitted that White had made a proper decision. With regard to searching out further facts, he submitted that the grievor had every opportunity to fill in c -0- all the details on his application. In the Kuyntjes case, Vice Chairman Verity faulted the Ministry for not investigating the circumstances relating to the grievor's failure to report to work when it denied his request. It was a situation where a snowstorm had interrupted road traffic and the employer had not investigated the specific circumstances relating to the grievor. Ministry Counsel submitted that that was a different situation from that of the grievor's. The determining factor in our review of White's decision is that clearly on the evidence before the board and especially his own testimony he decided the question on the fact that the surgery was pre-scheduled.' In his mind, the determinate factor was that compassionate or special leave was not available when the event for which the leave was being requested was pre- arranged or pre-scheduled. Wh,atever the meaning of the Ministry's guidelines there is no basis for such a requirement in the wording of Article 55: it is not something that the parties bargained for as reflected in the language of the Agreement. The language "upon special or compassionate grounds" does not exclude pre-arrangement or pre-scheduling of the event. That is not to say that pre-scheduling or pre-arrangements cannot be looked at by management as a consideration along with any number of other factors in exercising its discretion. But it is clear that White read it as automatically excluding an application under Article 55.1. His reference to the compassionate factor as not being present because there was only a "paternal" element present . . 'f -, g - reinforces my conclusion that he thought not in terms of discretionary guidelines but rigid categories. Clearly his discretion was fettered by his search for absolute rules. That being the case his denial of the application was invalid. Although the question of conflicting decisions by sister Ministries on the same facts is another intriguing issue - I need not now consider it although I would urge the Ministries to examine this imbroglio. Similarly, I need not decide specifically here whether White erred by not further investigating the circumstances. I do make the comment that where as here management is exercising a discretion upon the "compassionate or special circumstances" of an employee, it would seem at the minimum logical to make certain it has the necessary relevant facts before it decides. Both Counsel agreed that if this Board should find that the discretion had been exercised inconsistently with the standards of administrative justice, it should itself exercise the discretion rather than remit the matter back. On the facts of this case, considering the tender age of the child and her need for the presence at all times of an adult family member, the distance from home, the natural concern of parents for their child and in particular for a very young child, it would seem that the circumstances were clearly suitable for a grant of compassionate leave. I have no hesitation in so finding and accordingly I allow the grievance and direct the Ministry to correct the employee's record appropriately by returning to him ~ c - 10 - the days deducted from his overtime bank and substituting for these days off leave for special or compassionate grounds. DATED AT TORONTO, Ontario this 24th day of August , 1988. ..~~ ~...~. ADDENDDM + :. It is the view of this Member that it is quite reasonable for Management to search for guidelines to uniformly administer the provisions of Article 55.1 of the Collective Agreement. The language of the Article is so broad and so open to varia- tions in interpretation that it is obvious that a set of cir- cumstances which is found to be "special" and which might evoke "compassion" on the part of one Manager will not pro- vide for the same result by another. Nevertheless, this Member is in concurrence with the Union's position in this case that Article 55.1 does not, in itself, contain any restriction which requires or does not require prearrangement in order to qualify for compassionate leave. In view of the circumstances of this case, the natural concern of the parents, and the language of Article 55.1, it,is not unreasonable to conclude that Manager White might have deemed it to be a compassionate situation and that, in the exercise of his-discretion, he might have granted~ compassionate leave as contemplated in Article 55.1. '.. More to the point, however, and in following prior jurisprudence (G.S.B. #513/84 - referred to at page 6 of the subject award) to the effect that the minimum standard of administrative justice requires. "2. . . . . . . . . . a genuine exercise of discretionary power, as opposed to rigid policy adherence." it is clear that Manager White aid utilise established guide- lines prepared for the Ministry of ~Transportation and Conunun- ications; and that he found that the operation in this case i was "prearranged"; and that accordingly he declined to give approval for the compassionate leave. In view of the above reasoning, therefore, this Member does support the award decision. After having so concluded, it would seem clear that the various Ministries would do well to eliminate their various guidelines for compassionate leave. In fact, it was the Union's position that Management should be "unfettered" in its discretion with reference to decisions associated with requests for compassionate leave. As stated at page 7 of the Award, . "The Union's position was that White by focusing on the factor of prearr.angement as deter~mining the decision had fettered his disc~retion." ,~. Indeed, the various ministries, in pursuing prior juris- prudence, would do well to follow the rules for the minimum standards of administrative justice as set out in G.S.B. #513/84; for, had Manager White simply operated on the basis of the principles set out in the minimum standards of administrative justice when Mr. Ford filed his request for leave on April 27, I907 (and with no Ministry guidelines to assist him), it is very reasonable to conclude that Manager White might have determined, (after a full examination of the facts and in good faith, without discrimination, with no rigid policy adherence and no irrelevant considerations, etc.) - that he would not have granted the compassionate leave requested. In fact, he may very well have determined, based upon his discretion and analysis of the facts, that the oper- ation for the child had been prearranged months earlier and that, therefore, compassionate leave was not warranted. 3. In effect, with no guide,lines to follow, Manager White may have reached the same decision that he made in this case; and, indeed, if protested by Mr. Ford, Manager White could have been found by the Board to have exercised his judgment and discretion quite properly. Given the reasoning in the subject case such a decision would not seem~unreasonable. Should the parties to the Collective'Agreement choose to leave the matter under the present circumstances the dis- cretion exercised by various Managers will continue to be an irritation. This Member would recommend that the parties should endeavour to reach agreement on guidelines to assist in the administration of Article 55.1.