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HomeMy WebLinkAbout1987-2454.Sahota.88-08-23ONT/\R,O EMPLOY&DE U COURONM CROWN EMPLoYEEs DEL’ONTIRIO GRIEVANCE CQMMISSION DE ;E$-;-MENT REGLEMENT DES GRIEFS ,BO DUNO,4S STREET WEST.~-rORONTO. ONTARIO. MEQ IzB-s”ITEzml WJ, RUE DUNCAS 0”E.W TORONTO. (ONTARIO, t.450 128 -BUREAU 21C.7 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BoARD Between: OPSEU (J.S. Sahota) and The Crown in Right of Oiitario (Ministry of Correctional Services) Employer Before: For the Grievor: R.L. Verity, Q.C. Vice Chairman J. Solberg Member D. Montrose Member D. Wright .* Counsel Gowling & Henderson Barristers and Solicitors For the Employer: D. Bolton Regional Personnel Administrator Ministry of Correctional Services Hearing: June 28, 1988 -2- DECISION The grievor, J. S. Sahota, has some eight years seniority as a Maintenance Electrician at the Elgin-Middlesex Detention Centre at London. He is currently Chief Steward of Local 108. Mr. Sahota grieves that on December 30, 1987, he was unreasonably denied four 'hours special or compassionate leave under Article 55.of the Collective Agreement. Article 55 reads as follows: ARTICLE 55-SPECIAL AND CONPASSIONATE 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 th,is Article shall not be dependent uponor charged against accumulated credits. There is no d i spute that the grievor was scheduled to work on December 30 and that he did receive the four hours leave to attend the funeral and act as a pallbearer for a friend and neighbour. The leave was charged against Mr. Sahota's accumulated credits. This . . grievance arises from the grievor's position,that the leave should have been paid leave pursuant to Article 55. The issue is whether or not management properly'exercised its discretion in denying him compassionate leave for the authorized absence. i’ -3- ,The material facts can be briefly summarised. On December 29, 1987, the grievor submitted a written request on a prescribed form for four hours compassionate leave for the following day "to attend the funeral of a friend and neighbour". Elgin-Middlesex Superintendent I. D. Starkie reviewed the written request on December 29 and gave the Institution's Personnel Clerk the following handwritten letter: 29.12.87 Mr. Sahota, Your request as submitted can be granted to be charged ag.ainst accumulated credits. For consideration for discretionary leave more details in support of your request are required. I. Starkie Apparently, the Superintendent's note was never given to the grievor. However, the grievor acknowledged.that on December 29 the Personnel Clerk advised him of the Superintendent's response and the requirement for further information. In dispute is the nature of the information provided by the grievor to the Superintendent and the precise dates on which any such additional information was provided. .* There is agreement that the grievor telephoned Superintendent Starkie on the afternoon of December 29. Apparently the Superintendent had not then seen the grievor's written request. According to the grievor's evidence, he telephoned the Superintendent again on the morning of December 30 and was told that the request for compassionate leave had been denied. The Superintendent stated that the conversation occurred on December 31 and that he could not recall denying the request at that time. According to the Superintendent's recollection, he informed the grievor that he was too busy to discuss the request but.would be willing to meet with him in the new year. In reply evidence, the grievor testified that in the second telephone conversation he explained to the Superintendent that he had known the deceased for a number of years and that "he (the deceased) had been like a father to me". The Superintendent denied receipt of that information. In any event, on January 5, 1988, the grievor met with the Superintendent for some 20 minutes in the presence of Union Representative Cindy Hanes. Apparently the purpose of the meeting was to review.the criteria used in considering the grievor's request for compassionate leave. The Ministry criteria arises from a memorandum from J. F. Benedict, Manager of Compensation and Staff Relations, dated March 10, 1981. The memorandum reads as follows: -5- March 10, 1981 MEMORANDUM TO: Deputy Minister Executive Directors Branch Reads Regional Directors, Institutional Programmes Regional Administrators, Probation & Parole Superintendents, Institutional Programmes Area Managers Personnel Administrators Regional Training Advisors RE: SPECIAL & COMPASSIONATE LEAVE PROVISIONS In light of 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 80(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 can be 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 leave before deciding to grant or deny the leave. Without limiting the generality of the foregoing, and depending on the particular circumstances, the following types of considerations may be taken into account: 1. 2. 3. 4. 5. .The needs of the work place (eg. staffing and operational requirements) The importance of the request to the employee and the hardship-caused by denial In family matters, the nature of the-relationship and the urgency of the call on the employee's services by family obligations Whether it was possible or appropriate for other arrangements 'to be made by the employee. Whether the denial or granting of the leave would constitute a form of discrimination, i.e. similar cases should be treated alike -6- Normally, however, the provisions of Article 54 are not applied in the following circumstances: - religious holidays - weather conditions - self development & written examinations - an extension of maternity leave - mandatory referrals - sickness of family members (subject to above mentioned circumstances) - weddings - car breakdowns - citizenship applications - extension of bereavement leave - medical appointments - moving - legal matters - attending graduations For these situations, employees may, of course, request a leave of absence under other articles of the Collective 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 Article 54 or Section 80(l) of the~Regulations and to consult with Regional Personnel Administrators before such~a 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 +flnism~Personnel Manual, Section E, Employee Benefits. J. F. Benedict Manager Compensation & Staff Relations The evidence established that the meeting of January 5 was a "frank discussion" in which the Superintendent expressed concern about setting a precedent for the granting of such requests. According to -7- the grievor's recollection, the Superintendent stated "it-could open avenues for other people to use the same circumstances for time off". The Superintendent acknowledged that during the course of the meeting, the grievor advised him that he intended to file a grievance. Subsequently, in a letter to the grievor dated January 7, 1988 the Superintendent formally denied the request as follows: This is in reply to your written request for compassionate leave to attend the funeral of your friend and neighbour.(name not provided) dated December 29th, 1987. Our telephone discussion of December 29th, 1987, and our meeting of January 5th, 1988, attended by Ms. C. Hanes, are also confirmed by this correspondence. You were requested to provide any relevant information or details to assist in the consideration of your request. YOU added to your original written request by verbally stating that you were asked to be a pall bearer. Following careful1 consideration of your request, I must inform you that I am unable to authorise compassionate leave in this instance. It is noted that you were offered time off to be charged against accumulated credits and that you were in fact absent from the work place for the purpose of attending the funeral of your friend and neighbour on the afternoon of December 30th. At the hearing, Superintendent Starkie testified that on the minimal information provided by the grievor, he could not justify granting the request for compassionate leaver. The Superintendent was critical of the fact that there was no accompanying letter attached to the Ministry form setting out the surrounding circumstances, including any hardship that would be caused by denying the request. Obviously, -8- the Superintendent expected' further information to be provided in writing. In the Superintendent's own words: "...he should write his own application..." and n . . ..I try to go out of my way not to write an application for an employee". According to the Superintendent's testimony, the first time he became aware that the grievor had been a pall tearer was at the meeting of January 5, 1988. However, in cross-examination he did acknowledge that "it was possible" that he had been advised on an earlier occasion. Prior to denying the grievor's request, Superintendent Starkie reviewed the Institution's records for granting compassionate leave during the period October 1986 to October.1987. At the Hearing, Elgin-Middlesex Correctional Officer Al Willis testified that he had been granted 12 hours compassionate leave in August, 1986 to act as a pallbearer at the funeral of a son of a fellow Correctional Officer. The Union argues that Management improperly denied the request in the absence of any enquiry into the grievor's .* circumstances. In the alternative, the Union maintained that on the evidence the denial was a form of hiscrimination. In support, the Union cited OPSEU (Pieter D. Kuyntjes) and Ministry of Transportation and Communications 513/84 (Verity) and Mrs. Helen Elesie and Ministry The Employer maintained that Management had applied Ministry criteria in a reasonable manner and that the grievor had failed to provide adequate information to justify granting the request. In support, the Employer submitted the following G.S.B. Decisions - OPSEU (P. Lacourse) and Ministry of Correctional Services 1273/84 (Gandz); OPSEU (P. Latulippe) and Ministry of Correctional Services 1000/86 (Samuels); and OPSEU (Thomas Jackson) and Ministry of Correctional Services 487/83 (Roberts). A rev that special or iew of the G.S.B. Decisions submitted makes it clear compassionate leave under Article 55 applies to employee requests involving extraordinary circumstances which merit sympathetic treatment. Under that Article, Management has broad discretionary powers to grant or refuse requests for such leave. However, in our opinion, the discretion must be exercised in a non-discriminatory and reasonable manner. -9- of Health 24/79 (Swinton). .' The Ministry has recognized the standard required and has developed Ministry guidelines in the form of the memorandum prepared by Mr. Benedict in March of 1981. The Board is satisfied that those ~. guidelines set out reasonable criteria for a proper administration of Article 55. The following extracts from the guildelines merit repetition: "Although Article 54 (now 55) . . . . gives the employer wide discretion in deciding whether to grant special or compassionate - lo- leave, this discretion must be exercised in a reasonable and nondiscriminatory manner." Similarly, "in the final analysis, management must give full and proper consideration to the particular merits of each application for special and compassionate leave before deciding to grant or deny the leave." Vice-Chairman Swinton makes the following relevant comments on the issue of the proper exercise of Management's discretion under this Collective Agreement in Re Young and The Crown in Right of Ontario (Ministry of Community and Social Services (1979), 24 L.A.C. (2d) 145 at p. 147: The grievor is arguing that she has been unreasonably denied leave of absence under art. 29.1. While that article is framed in a way which appears to give management an unlimited discretion in the granting or denial of leaves of absence, in fact that discretion must be exercised in a non-discriminatory and reasonable manner, as many arbitration awards have held: Re Canada Valve Ltd. and Int'l Molders & Allied Workers' Union, Local 279 (1975), 9 L.A.C. (2d) 414 (Shime); Re York University and C.U.P.E., Local 1356 (1976), 12 L.A.C. (2d) 213 (Abbott). The employer, in deciding whether to grant or deny a leave of absence, must consider the merits of the individual application. He cannot rely on "floodgates" arguments, saying that granting a leave of absence in this case may lead to many more requests and, therefore, set a dangerous precedent: Re Simon Fraser University and Asoc. of University & College Employees, Local 2 (1977), 15 L.A.C. (2d) 24 (Southin) at p. 26: Re U.A.W., Local 673, and De Havilland Aircraft of Canada Ltd. (1968), 19 L.A.C. 298 (Weatherill) at p. 299. Rather, the employer must turn its mind to this particular request, and consider both the harm to management's objectives in granting the request and the importance of the request to the - ll- employee and the hardship caused by the denial: Canada Valve, supra, at p. 415. An arbitration board, in subsequently assessing what the employer has done in reaching its decision, then plays a restricted role. It 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. The board's concern is the reasonableness of the decision, not its "correctness" in the board's view. On the particular facts before us, it would appear that the Ministry has not followed its own guidelines. On the evidence of Superintendent Starkie it cannot be said that Management was fully aware of the merits of the grievor's application for special leave. Indeed, at the hearing, the. Superintendent candidly acknowledged that had he been made aware of all of the facts as presented to the Board, he might have reached a different copclusion. The grievor's written request asked permission to attend the funeral of a friend and neighbour', without further elaboration. In fact, there is no mention of acting as a pallttier in the original written request. Quite properly we think, the Superintendent requested further information to support the request. However, at no ..* time did the Superintendent make any direct personal enquiry as to the grievor's circumstances. Rather, he expected the grievor to provide further written information. Had the Superintendent questioned the grievor directly, in all likelihood he would have been in a position - 12 - to properly determine the merits of the application. The Ministry guidelines are clear in that regard: "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 Article 54 . . . and to consult with Regional Personnel Administrators before such a leave is granted." In these circumstances, it cannot be said that Management has made a serious and diligent enquiry into the facts. Similarly, there is no evidence of any consultation with the Regional Personnel Administrator. We view the process .as flawed. 'In addition, the Board heard evidence that Elgin-Middlesex Correctional Officer Willis had been granted 12 hours compassionate leave to attend the funeral and act as a pall-hearer in August of 1986. It would appear that the grievor's circumstances were similar to the successful Willis request in 1986. There was insufficient evidence adduced to justify the differential treatment. In fairness to Superintendent Starkie, he was not made aware of the Willis precedent when he denied the grievor's request in January, 1988. Nevertheless, the Ministry Guidelines require-that "similar cases be treated alike". In the result, this grievance is allowed on the finding that the grievor has been unreasonably denied compassionate leave. _ Accordingly, the grievor shall receive four hours compassionate leave - 13 - on December 30, 1987, and the Employer's records shall be adjusted and the accumulated credits used will be returned. The Board shall retain jurisdiction in the event of any dispnte in the implementation of this Decision. DATED at Brantford, Ontario, this 23rd day of August, 1988. (-$L- .L A-c.* R. L. VERITY, Q.C.'- VICE-CHAIRMAN J. SOLBERG - MEMBER J -.. D. MONTROSE - MEMBER