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HomeMy WebLinkAbout1987-2027.Mahendra.88-07-14Between: 2027187 IN THE KATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Before: For the Giievor: For the Employer: Hearings: OPSEU (N. Mahendra) Grievor and The Crown in Right of Ontario (Ministry of Natural Resources) Employer M. Mitchnick Vice-Chairman I. Freedman Member M. O'Toole Member R.R. Wells Counsel Gowling and Henderson -* Barristers and Solicitors R. Filion Counsel Winkler, Filion & Wakely Barristers & Solicitors March 14, 1988 DECISION This grievance complains that the grievor, Mahendra Narain, was improperly denied the paid leave he ought to have been granted under the provisions of Article 30 of the collective agreement. The employer takes the position that the grievance was filed out of time, and that the grievor’s request was, in any event, properly considered and denied. In June of 1987 the grievor suffered the unfortunate loss of his father in India. The grievor left on July 1st to be with his family and attend the funeral, and, because of the special duties devolving upon the eldest son in the Hindu religion, and the travel distances involved, was not able to be back for work until July 20th. The grievor was entitled to 3 days leave of absence with pay under Article 49 of the collective agreement, and asked the Ministry to allow him eight more days paid leave (as opposed to the unpaid leave that he was readily granted) for the remainder of the period that ,he was required to be absent. Article 30 reads: ARTICLE 30 - LEAVE - SPECIAL -- 30.1 Leave-of-absence with pay may be granted for special or compassionate purposes to an employee for a period of: (al not more than six (6) months with the approval of his Deputy Minister; and The gr ievor's request for spec ial compassionate leave was submitted in writing on July 29th as follows: (b) over six (6) months upon the certificate of the Commission and the Lieutenant with the approval of Governor in Council. 1987 07 29 - 2 - MEMORANDUM TO: Regional Director Central Region SUBJECT: Bereavement and Discretionary Leave On June 30, 1987 evening I received a phone call from India informing me of my father's demise. Therefore, immediately on July 1, 1987, I left for India by 5:30 flight. Before leaving I spoke to Martin Groneng at his home from the airport and informed him that I would be away until July 20, 1987 at a minimum. I believe you are aware of this. Being eldest son in the family, my presence at the funeral rites and by the side of my mother was very essential. Also, it was my duty to make suitable financial and other arrangements for my mother to carry on her life. My mother has never had to deal with matters of estate and banking, etc., while my father was alive. This made my presence and participation in various arrangements doubly important. As a result, I had to be away for little over two weeks. I am aware that I am entitled only up to 3 days bereavement leave. This would leave me 8 days of leave of absence to cover. I would highly appreciate if you could grant me special compassionate leave for 8 days starting July 8, - 3 - 1987 to July 17, 1987. In view of foreign travel time involved and my special circumstances, I hope you will consider my request with compassion and allow me this 8 days leave of absence with pay. Thank you, “M. Narain” Mahendra Narain The Ministry’s practice, according to its evidence, is to have all such requests initially considered by its Regional Manpower Planning Committee, composed of the Regional Director, 2 Deputy Regional Directors, and the Regional Personnel Officer. If the Committee considers the request an appropriate one to be granted, it submits its recommendation to the Deputy minister for his approval. The Regional Personnel Officer in this case was Mr. Robin Kennedy, who approached the grievor on August 12th to indicate that his request had been considered, but that it did not involve the kind of special circumstances that would cause it to be granted. The grievor was unhapp.y with that response, and asked for the ministry’s reply to be provided to him in writing. The Ministry complied, and provided the grievor with the following wfitten reply of August 19, 1987: - 4 - PERSONAL AND CONFIDENTIAL August 19, 1987 MEMORANDUM TO: Mahendra Narain SUBJECT: Bereavement and Discretionary Leave Your request for 3 days bereavement leave under Article 49.1 of the Collective Agreement has been approved, however, your request for an additional 8.77 days leave for special or compassionate reasons has not. While we are sympathetic to the circumstances which gave rise to your second request, only the provisions of Article 49 are applicable to this situation. Furthermore, to grant extra leave in this case would be unfair to other individuals in the Region who, under similar circumstances, have had their requests denied. The extra 8.17 days may be charged to leave without pay or to other accumulated credits. A. S. HOLDER REGIONAL DIRECTOR CENTRAL REGION (416) 883-3256 RFK/ms (emphasis added) The grievor discussed the matter further with his supervisor upon receipt of this reply, around August 25th, and the supervisor explained to the grievor the manner in which such requests are dealt with by the Regional Committee. The grievor at that point was content with the fact that his request had been considered by a Committee, and believed that he had received the best reply he was going to get. He continued to discuss the matter with other members of the bargaining unit subsequently, however, and was given to understand that these decisions normal>y are made by the Deputy Minister himself. The grievor received oral support for his grievance from a Union staff representative at the end of September, and, after again discussing the matter with his supervisor, without satisfaction, filed the instant grievance on October 2nd. The employer, as noted, takes the position (as it did in its initial response to the grievance) that the grievance was not processed in a timely manner under the collective agreement. The agreement in that regard provides: ARTICLE 27 - GRIEVANCE PROCEDURE 27.1 It is the intent of this Agreement to adjust as quickly as possible any complaints or differences between the parties arising from the. interpretation, application, .administration or alleged contravention of this Agreement, including any question as to whether a matter is arbitrable. -* 27.2.1 An employee who believes he has a complaint or a difference shall first discuss the complaint or difference with his supervisor within twenty (20) days of first becoming aware of the complaint or difference. -6- 27.2.2 If any complaint or difference is not satisfactorily settled by the supervisor within seven (7) days of the discussion, it may be processed within an additional ten (10) days in the following manner: STAGE ONE 27.3.1 The employee may f.ile a grievance in writing with his supervisor. The supervisor shall give the grievor his decision in writing within seven (7) days of the submission of the grievance. STAGE TWO 27.3.2 If the grievance is not resolved under Stage One, the employee may submit the grievance to the Deputy Minister or his designee within seven (7) days of the date that he received the decision under Stage One. In the event that no decision in writing is received in accordance with the specified time limits in Stage One, the grievor may submit the grievance to the Deputy Minister or his designee within seven (7) days of the date that the supervisor was required to give his decision in writing in accordance with Stage One. 27 .3.3 The Deputy Minister or his designee shall hold a meeting with the employee within fifteen (15) days of the receipt of the grievance and shall give the grievor his decision in writing within seven (7) days of the meeting. . . . 27.13 0 27.14 27.15 27.16 - 7 - GENERAL Where a grievance is not processed within the time allowed or has not been processed by the employee or the Union within the time prescribed it shall be deemed to have been withdrawn. In this Article, days shall include all days exclusive of Saturdays, Sundays and designated holidays. The time limits contained in this Article may be extended by agreement of the parties in writing. The Grievance Settlement Board shall have no jurisdiction to alter, change, amend or enlarge any provisions of the Collective Agreement. The above language renders the time limits mandatory and, unlike the Labour Relations Act, there has been’ nothing.. added to the Crown Employees Collective Bargaining Act to give a board of arbitration the jurisdiction to relieve against even the most minor violations of mandatory time limits. The Union concedes, therefore, that if the time limits called for under the collective agreement were not complied with, the Board has no alternative but to dismiss the grievance. The employer submits that what the evidence shows is that the grievor’s complaint was never iofact raised with his supervisor as a formal matter at Step I at all. But if the discussion on August 25th is looked upon as that, the filing of - 8 - the grievance on October 2nd exceeded the time limits (17 days in all) permitted under Article 27.2.2; and if the discussion just prior to the grievance i s used instead, that discussion itself is untimely according to the 20 days permitted for the raising of a complaint under 27.2.1. ’ The Union counters that only the Deputy Minister can decide whether to grant or deny a request for paid leave under Article 30, and that the grievor did not learn until August 25th that the Deputy Minister in fact never saw his request. The employer, it notes, at no time previously raised an objection that the matter had never been raised orally with a supervisor, and in fact the matter was - raised, as required by the collective agreement. The Union acknowledges, however, that its argument on the, time limits depends upon a finding that its interpretation of Article 30, requiring a decision either z by the Deputy Minister, is correct. A late grievance cannot be revived by subsequently adding a procedural argument that is itself incorrect. Upon review of the provisions of the agreement as a whole, we find that Article 30 means no more than exactly what it says: that leave of absence with pay tinder the Article may only be granted upon the approval of the Deputy Minister. There is nothing in that language to suggest that application for such paid leave cannot be screened by lower-ranking . off ‘1 cials, to save the Deputy Minister time. The provision, it - 9 - can be gleaned from its terms, is in fact providing a check on those lower-ranking officials, making it clear to all parties that a request cannot be granted (and thus a precedent established) without the Deputy Minister’s approval. And, as can be seen, for the really exceptional cases of paid leave which would extend beyond six months, even that control on the power to,grant such requests is not deemed sufficient. In contrast to that, there has been a similar provision negotiated in Article 55 to cover shorter term situations (maximum 3 days a year), where it has been considered appropriate to leave the power to approve either with the Deputy Minister or his or her designee: - 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. That is similar to Articles 27.3.2 and 27.3.3. of the grievance procedure, which allow a lesser official (“designee”) to make _. the decision on a matter either way. For requests under Article 30, however, the requirement is, once again, simply that such request not be - 10 - granted without the approval of the Deputy Minister. That did not become an issue in the present case, because the request was denied at the level of the Manpower Planning Committee. That decision was informally communicated to the grievor on August 12th, and in writing as he requested in the form of the August 19th letter. The grievor from at least one of those two points, had 20 days to bring his complaint or difference to the attention of his supervisor. It appears he may have done that on or about August 25th, but if that were the case, the grievor, under Articles 27.2.2 and 27.3.1, would have had to file his grievance in writing within at least a further 17 days from that date. Alternatively, his “complaint” was not raised with the supervisor until a couple of days prio~r to the filing of the October 2nd grievance. In that event, the grievor would have failed to comply with the 20-day time limit under Article 27.2.1. Either way, the time limits were not met, and, in the circumstances, it is acknowledged that we have no alternative but to dismiss the grievance. The Union, we would note, made extensive submissions concerning the manner in which the Ministry appears to be administering its applications for leave under Article 30 of the collective agreement. While it is, for the reasons given, not within our jurisdiction to deal with the “merits” of this case, we think it useful simply to note that a distinction does - 11 - exist between the Ministry issuing general ‘guidelines” to its managers for the exercise of administrative discretion, in the interest of providing employees with some measure of consistency, and the erection of a standard which in effect forecloses in advance certain types of requests under the broad language of Article 30, as the response to the grievor of August 19th appears on its face to suggest. DATED AT TORONTO THIS i4th DAY OF JULY, 1988. M. G. -MITCHNICK - ,VICE-CHAIRMAN