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HomeMy WebLinkAbout2010-2130 Grant 14-06-13 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2010-2130 UNION#2010-0521-0097 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Grant) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Daniel Harris Vice-Chair FOR THE UNION Lesley Gilchrist Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Heather McIvor Ministry of Government Services Legal Services Branch Counsel HEARING December 18, 2012, April 15, 16 & 22, October 28, 2013 - 2 - Decision [1] In this matter the union grieves on behalf of Darren Grant that his employment was terminated contrary to the collective agreement. [2] The employer terminated the grievor's employment pursuant to section 42 of the Public Service of Ontario Act, 2006. For the sake of convenience, that section reads as follows: 42. (1) If a public servant appointed by the Public Service Commission is absent from work without approved leave for a period of two weeks or more, the Commission may declare, in writing, that the public servant has abandoned the position and that his or her employment by the Crown is terminated. 2006, c. 35, Sched. A, s. 42(1). Effect of termination (2) When a declaration with respect to a public servant is made under subsection (1), the termination takes effect and the public servant ceases to be employed by the Crown. 2006, c. 35, Ached. A, s.42 (2). [3] There is no dispute that the grievor was absent from work for a period of two weeks or more and that a declaration, in writing, was made on October 21, 2010 by David Mitchell, Superintendent, Mimico Correctional Center, that the grievor had abandoned his position. The grievor joined the Ontario Public Service as an unclassified Youth Services Officer on April 7, 2003. He was transferred to the Mimico Correction Centre on June 5, 2006 and was appointed to the classified service on June 30, 2008. [4] The issue before me is whether the Employer unreasonably denied the grievor's request for a leave without pay. - 3 - The Facts [5] The grievor went off work December 11, 2009, under the care of his family physician. The physician’s note of December 15, 2009 indicated that the grievor had been under his care for endogenous depression since May 2009. By letter dated March 12, 2010 his physician predicted a return to work date of May 1, 2010. The Employer requested further and more detailed medical information by letters dated March 26 and April 23, 2010, without reply. The grievor did not return to work on May 1, 2010. [6] The grievor had been warned in the April 23, 2010 correspondence that failure to provide the outstanding medical information by May 1, 2010 might impact his entitlement to short-term sick benefits. His benefits were in fact discontinued. Throughout this period the grievor was dealing with Mike Jarmasz, Staff Services Manager. He sent correspondence to the grievor dated July 14, 2010. That correspondence set out, in part, the following: On July 12, 2010 you advised via e-mail to the Employer that your ongoing absence is not due to illness, but instead for personal reasons for which you will be requesting unpaid leave. To date the Employer has not received sufficient information from you in order to consider this request. … Please complete the Leave of Absence Request form attached so that your request for an approved leave of absence from work may be considered by your Employer. In addition, please provide a letter supporting your request, to include: reason for the leave, start date and duration of the leave, why there may be no alternatives and expected return to work date. You are required to return this information to me by July 23, 2010 at fax at … so that your request may be considered. - 4 - [7] There was some delay in the grievor receiving this correspondence. In the meantime the grievor sent the following information to Mr. Jarmasz by email dated July 12, 2010: As per our telephone conversation on May 12th and even more recently in June and July I reaffirmed to you that I wish to take a leave of absence to take care of and build a relationship with my ill father. I further told you that I wish to continue paying into my pension. You told me that this would not affect my sick credits. His illness has impacted my life and my daily, normal activities as discussed with you. Again I am requesting a leave of absence to look after my Father in this time of need. [8] After receiving the letter the grievor sent the following to Mr. Jarmasz by email dated July 22, 2010: I'm responding to your letter dated July 14, 2010 in which you continuously point out my absence from work. We have discussed this matter on the phone and I feel the need to reiterate reasons for my absence in writing due to ignorance or misunderstandings in your letter to me. My illness is a combination of many factors starting at childhood that have in the last 3 to 4 years caused me terrible depression. Because I wish to spend time with my Father who is depressed and has no ambition to live due to his illness does not mean I am not ill. I do not expect to be paid for the time I wish to be with my family. This time with family is needed to better all of us. I will also be attending a 12 step program to avoid any further depression and find a better way to deal with the many contributing factors of my depression. I will forward the completed leave of absence paperwork tomorrow as instructed. [9] The grievor submitted the application for leave of absence without pay. The reason set out on the form for seeking the leave was, “family issues Sick father – Depression”. He signed and dated the form and ticked the box indicating he did not want to make superannuation contributions during the leave, contrary to his email and a contemporaneous application to the OP Trust to make the contribtions. He did not provide the supporting letter that was required to give the employer the reasons for the - 5 - request. In his evidence, Mr. Jarmasz testified that the documentation is required in writing because such a leave request might have to be approved by the Regional Office. Also, the reasons would not be subject to change by the employee. It was Mr. Jarmasz’s view that the grievor would still have to provide updated medical information because of the intertwining of the grievor’s condition with the need to spend time with his father and the fact that the grievor’s condition was not clear. [10] Mr. Jarmasz responded by email dated July 28, 2010 as follows: Thank you for your email dated July 22, 2010 and the documents that you forwarded to me. I empathize with the challenges in front of you and if there's any other assistance that the employer may offer to you please call me. Darren, there is one piece of information that is still missing in support of your request for an unpaid leave of absence. These are not rules introduced locally by the employer but corporate rules the employer must adhere to. Please refer to the first paragraph on page 2 of my July 14, 2010 letter which reads "In addition, please provide a letter supporting your request, to include: reasons for the leave, start date and duration of leave, why there may be no alternative and expected return to work date". Again, this needs to be a separate letter. We understand that you're asking for leave for two reasons: first because of your own medical condition and second because of your father's medical condition. This being as it is, your request must be supported by medical documentation from your treating physician giving your present health status; and a medical note from your father's physician giving the circumstances of his health status would also be beneficial. Please fax … the letter and the medical note(s) to me as quickly as possible so that your employer can conclude a review of your request. [11] The grievor did not send a supporting letter nor the medical notes requested. By letter dated August 23, 2010 Mr. Jarmasz again requested that documentation, imposing a deadline of September 3, 2010. In that letter the risk of a declaration of abandonment pursuant to section 42 of the Public Service of Ontario Act, 2006 was specifically - 6 - brought to his attention and the text of section 42 was included in the letter. In the meantime, the Leave of Absence request could not be processed without the supporting documentation. The grievor replied with the following brief email dated Tuesday, August 31, 2010: Sir, my fathers (sic) illness is a personal family issue that we have lived with throughout our years as a family. Again spending time with my ill father in his later years is needed to rebuild our broken family and ease our family strain in my personal stress. [12] Mr. Jarmasz, having been unsuccessful in obtaining the necessary documentation, referred the matter to David Mitchell, Superintendent, Mimico Correctional Center. Mr. Mitchell had been consulted by Mr. Jarmasz throughout the earlier period. Mr. Mitchell sent a letter dated September 7, 2010 to the grievor imposing a new deadline of September 21, 2010 to provide him with the grievor's “outstanding medical information, detailed leave of absence request letter and/or return to the workplace with appropriate medical clearance.” The letter went on to state, "in the event that you do not comply with this request, you will be issued a letter from the employer deeming you to have abandoned your position with the Ontario Public Service as per section 42 of the Public Service Act of Ontario, 2006 effective Wednesday, September 22, 2010. The grievor was invited to telephone Mr. Mitchell should he have any questions or concerns. [13] Rather than provide Mr. Mitchell with the medical documentation and detailed leave of absence request letter, the grievor sent Mr. Mitchell an email dated September 16, 2010 saying in part: - 7 - I have filled the proper paper work out and sent it to Mr. Jarmasz. I've also emailed Mr. Jarmasz in a confidential manner explaining my personal family matter. I've explained to him the need for my leave and feel that this will help heal me and family issues. This again is a personal family issue that I was uneasy speaking about but felt it necessary to confide in Mimico management. I have repeatedly been asked for more information including medical documentation for my father and myself when much of my ongoing stress and depression is due to a family disease. Again I wish to take an unpaid leave of absence for a period of one year to spend time with my family. [14] By email dated September 17, 2010 Mr. Mitchell replied and reiterated his request that the grievor provide his outstanding medical information, detailed leave of absence request letter, and/or return to the workplace with appropriate medical clearance. He indicated that the information had not been provided and also reiterated that failure to provide the required information by September 21, 2010 would result in the declaration pursuant to section 42. The grievor missed that deadline and Mr. Mitchell sent another letter, dated September 30, 2010 with a "final" deadline of October 8, 2010. The letter gave the grievor three options, being, to return to the workplace with appropriate medical clearance, provide medical documentation if his absence was due to illness, or: If you are off work due to personal reasons and you are requesting a leave of absence without pay as per Article 24 of the OPSEU Collective Agreement, in addition to the Leave of Absence Request/Authorization form submitted, you're required to provide supporting documentation. This form requests that the employee identify why they are asking for a leave without pay (detailed information required). In addition to the form please provide in writing how long you are requesting a leave for, start/end dates of your leave request, alternative measures you've explored which would not necessitate a leave, as well as supporting documentation collaborating your request. Please note that this form and the corresponding requested information must be fully completed to be considered by the employer. - 8 - [15] Once again, Mr. Mitchell invoked the authority of section 42. The information requested was not forthcoming. The grievor responded by email dated October 12, 2010. That email was identical to the email of September 16, 2010 set out above. [16] Mr. Mitchell in his letter to the grievor dated October 21, 2010 declared that the grievor had abandoned his position. The letter recited the history of the correspondence with the grievor from and after August 23, 2010. It repeated the three options Mr. Mitchell had given the grievor in his previous correspondence. [17] The grievor testified. He said that he and his father had never been close. He said that he went off sick in December 2009 largely as the result of his father having suffered a stroke. He testified that his father had suffered from alcoholism throughout the grievor's childhood. He concluded that his depression was because of the lack of any meaningful relationship with his father while growing up. He said that he sought an unpaid leave of absence because the solution to his problems was to spend time with his father. These conclusions seem to have been reached without the benefit of any medical attention. The grievor testified that by May 1, 2010 he was no longer under medical care. He also said that his father was not under medical care at the time other than for blood thinners. Essentially, he wanted time off without pay in order to build a relationship with his father. That included simply being with him, talking to him, spending time with him. [18] He said that returning to work May 1, 2010 just was not a priority. He said he didn't always return telephone calls from the employer because he believed he had a doctor's note from his treating physician putting him off work until May 1, 2010. It was on that - 9 - basis that he did not respond to the letters from his employer seeking further and better medical information prior to May 1, 2010. He didn't see the need to go back to the doctor to get another note. The grievor was quite clear in his evidence that he never asked for additional medical leave because he felt that being with his father was the treatment that he needed. He also recalled that Mr. Jarmasz had encouraged him to get union representation in a conversation that they had on May 11, 2010. It was the grievor's view that his email to Mr. Jarmasz dated July 12, set out above in paragraph 7, provided the information that had been requested of him. [19] In essence, the grievor was of the view that he thought he had provided more than enough information to the employer in order to secure the leave of absence without pay. He did not feel the need to provide any further medical information and felt that he had written a detailed account of why he required to leave. In particular, he felt that his email of August 31, 2010, set out above, addressed the requirement that he provide a detailed letter setting out the reasons for requesting a leave of absence without pay. He said that Mr. Mitchell's letter dated September 7, 2010 made him angry. He was sick of getting the letters. He was also of the view that his email response to Mr. Mitchell dated September 16, 2010 provided the information that Mr. Mitchell had requested. He concluded that Mr. Mitchell's email reply of September 17 indicated that the employer "had it out for me." He continued to believe that he had provided the information requested. On that basis, he didn't reply to Mr. Mitchell's letters of September 30 or October 5, 2010. When he received the declaration that he had abandoned his position; it was his view that he had done no such thing. When he received that letter, he said that he was in disbelief, and he - 10 - did not know how it had gotten to that point. He contacted the union and this grievance was filed. [20] The grievor believed that he had provided the requested information including the duration of the leave being one year. He testified that he did not think that he had called Mr. Mitchell in order to clarify what was required. He did not know why he did not call. He said that he thought his emails were good enough. [21] The grievor said that his preoccupation with spending time with his family precluded performing his duties as a corrections officer. [22] In cross-examination, the grievor agreed that he did not provide Mr. Jarmasz or Mr. Mitchell with any details regarding the type of care his father needed. He agreed that he did not provide details of any alternatives to taking a leave of absence without pay. The Submissions of the Parties [23] The employer submitted that section 42 lays out the criteria upon which the employer may declare a position abandoned. It said that in reviewing the facts of this matter the grievor was initially off work due to illness. He then said that he wanted a leave of absence without pay in order to care for his sick father. However, the grievor continued to couple that request with his own illness. Accordingly, Mr. Jarmasz continued to expect documentation of the grievor's medical condition. The Employer was prepared to consider the request for leave of absence without pay provided the grievor met the requirements of making such an application. He was required to provide specific reasons - 11 - start and end date and why there were no alternatives to taking such a leave. It submitted that the grievor's coupling of his own medical condition with the need to care for his father made the employer’s request for documentation of the grievor's medical condition reasonable. The employer submitted that its requests to the grievor for the necessary documentation were clear and reasonable, but ignored by the grievor. He was given many opportunities to comply but failed to do so. The grievor was warned of the specific consequences but repeatedly disregarded them. The employer submitted that the statutory requirements were met in the situation and the grievance should be denied. [24] The employer relied upon the following authorities: OPSEU (Baldeo) and Management Board Secretariat, GSB #1993-1270 (Finlay); Edwards and the Ministry of Correctional Services, PSGB #P/0049/01 (Leighton); OPSEU (Tam) and the Ministry of Revenue, GSB #1976-0001 (Beatty); OPSEU (Constable) and the Ministry of the Solicitor General, GSB #1989-0207 (Emrich); Ideal Parking v. Hospitality and Service Trades Union, Local 261 (Neveu Grievance), [1997] O.L.A.A. No 925 (Roach); OPSEU (Knox) and the Ministry of the Attorney General, GSB #2007-2998 (Abramsky); Dingwell’s Machinery and Supply Ltd. v. I.A.M Local 1120 (Martin Grievance), [2001] O.L.A.A. No. 60 (Surdykowski); OPSEU (Carvalho) and the Ministry of the Attorney General, GSB #1988-0821 (Kirkwood). [25] The union generally agreed with the employer’s submissions regarding the operation of section 42. However, it said that the employer had so improperly exercised its discretion with respect to not granting the leave of absence that it had poisoned the entire process. It said that Mr. Jarmasz’s concentration on the need to provide medical documentation in - 12 - the context of asking for a leave without pay was an improper consideration and colored the exercise of discretion. [26] The union submitted that the employer never seriously contested that the grievor's father was ill and knew sufficient detail about that situation. The employer never provided the grievor with assistance as to what was missing. It said that if, on the facts, the grievor should have been granted the leave, then the abandonment declaration was improper. Further, the onus is on the employer to establish that the leave was not unreasonably, discriminatorily or arbitrarily withheld. The union drew a distinction between the reasonableness of denying a paid versus an unpaid leave of absence, suggesting that approval of the latter requires less of a justification from the employee. [27] The union submitted that the grievor's request for a leave of absence without pay had nothing to do with the grievor's medical condition. Rather, it entirely related to the needs of the grievor's father and the grievor's need to spend time with him. The union said that the grievor had provided sufficient information to the employer to justify the leave request. It said the employer ought to have asked the grievor for specific information if it thought that it was missing required information. Instead, the employer continued to send the same request to the grievor over and over again providing no clarification to the grievor as to what was missing. [28] The union submitted that the leave was improperly denied and that the employer had been capricious and arbitrary. The employer, and specifically, Mr. Jarmasz, entirely misconstrued its right to private information. It said that there was no consistency in what - 13 - the employer was looking for. It said the employer had willfully blinded itself and made it impossible for the grievor to cooperate with them. The employer's insistence upon the grievor providing medical information was an invasion of his privacy and a misapprehension of the employer’s rights and obligations. [29] The union noted that Mr. Jarmasz testified that he knew in May that the grievor was interested in an unpaid leave of absence, but he did not directly ask for one. Said that the employer blinded itself to the process. Employer abrogated basic approaches to managing. The union submitted that the employer had no interest in assisting the grievor; they were building a case against him. They created a paper trail, but sending the same letter to the grievor four times was not assisting him. [30] The union submitted that the employer failed to follow the four-point test laid out in Culkeen, infra, which is 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 all irrelevant considerations must be rejected [31] The union submitted that the decision was not made in good faith. The insistence on medical information was not a legitimate consideration for an unpaid leave of absence. Second, the insistence on medical information was a rigid application of what Mr. Jarmasz thought was required. Third, to give proper consideration to the merits of the individual application would have required Mr. Mitchell to read and understand what the grievor had already provided and to give specific direction to the grievor as to what was - 14 - missing. It said the employer did not consider what the grievor had already said. Similarly with respect to the fourth requirement the relevant facts provided by the grievor were not considered and irrelevant medical information was required of the grievor. Such medical information was said to be irrelevant to a request for leave of absence without pay to care for the grievor's father. [32] The union submitted that where there was a conflict between the employer’s witnesses and the grievor, the Board should prefer that of the grievor. It said that Mr. Jarmasz, was evasive and guarded with respect to his conversations with the grievor whereas the grievor remembered details of the conversations and was forthright about things he did not remember. In particular, the union submitted that the grievor's recollection of his May 5, 2010 conversation with Mr. Jarmasz should be preferred and the Board should give credence to the grievor because he candidly acknowledged that he had let his sick leave expire, mentioned his father's alcoholism but did not mention that his father had had a stroke. [33] The union also submitted that the employer was required to properly investigate the grievor's request, which it failed to do. It is not open to the employer to go through the motions without taking into account the grievor’s circumstances. That is, it cannot set the grievor up to fail. It said that in these circumstances the employer did very little to find out the details of the grievor's request. It said that Mr. Jarmasz failed to synthesize the most basic information. - 15 - [34] The union relied upon the following authorities: OPSEU (Tam) and Ministry of Revenue GSB #1976/0001 (Beatty); OPSEU (Culkeen) and Ministry of Correctional Services GSB # 1989/0890 (Wright); Hamilton Health Sciences Centre and ONA (2007), 16 L.A.C. (4th) 122 (Surdykowski); OPSEU (Kuyntjes) GSB # 1984/0513 (Verity); OPSEU (LeGallais) GSB# 1979/0107 (Brunner). [35] In reply, the employer agreed that it did not contest the fact that the grievor's father had a stroke. However it did contest whether the father had care requirements that justified the leave of absence request. All the employer knew was that the grievor wanted to build a relationship with his father. The employer also submitted that the previous medical leave was relevant to the consideration of the leave of absence request. At the time he made the request for a leave of absence he was on an unauthorized leave of absence because he had overstayed his medical leave. It said the employer had a legitimate right to know his medical condition in order to determine whether his unauthorized leave should be authorized. The grievor's continued failure to provide information speaks to his attitude throughout. Further, time and time again the grievor referred to his medical issues. The employer submitted that it was preposterous to say that the grievor's medical condition was not in play. By way of example, the employer pointed to the application made by the grievor to the OP Trust dated July 1, 2010 to contribute pension contributions during an unpaid leave of absence. It said the document on its face characterizes the leave as “sick". Although it did not rely upon the document at the time, it was said to be consistent with how the grievor characterized his request throughout the piece. It said the grievor was relying upon his illness to justify, in part, his application for the leave without pay. - 16 - Accordingly, the requests for medical information relating to the grievor's health were entirely legitimate. [36] The employer submitted that even if the grievor asked for a leave of absence on May 5, 2010, he knew that he was obliged to put the request in writing. He failed to do so. It said that there was no different standard to be applied in the provision of information to justify leave of absence with pay or a leave of absence without pay. It said that on many occasions the grievor was asked to provide the details necessary, in writing, and that its investigation of the grievor’s circumstances went far beyond what was required of the employer. It also submitted that Mr. Jarmasz had no authority and exercised no influence upon the ultimate decision. The decision rested with Mr. Mitchell who was clear that he reviewed the file completely and concluded on his own that the level of detail required from the grievor had not been provided. He gave the grievor three clear options, none of which was complied with. The onus was on the grievor to provide precise, concrete information, which he failed to do. Reasons for Decision [37] A number of issues are raised in this matter. First, there is a difference between the parties on when the grievor first asked for a leave of absence without pay. In my view, nothing really turns on that issue. The grievor either said enough on May 5 to raise a reasonable implication that he was asking for a leave of absence without pay. It was first apparent on July 12, 2010 that he wanted a leave of absence without pay. In either event, at the time that it became clear the grievor was making that request he was on an unauthorized leave of absence because he had overstayed his approved medical leave and - 17 - had not provided further medical documentation as to whether or not he was fit to return to work. In my view the employer acted entirely reasonably in seeking to ascertain the status of the grievor’s health. He had been off work for five months up until May for depression. That diagnosis had been volunteered by his family physician in two medical notes dated December 15, 2009 and March 12, 2010. It was indicated in the latter note that he was being treated with medication to which he was responding slowly. [38] In addition, on any fair reading of the communications from the grievor to the employer, while he was off on this unauthorized leave, lead to the conclusion that his illness was a factor in his request for authorized leave without pay. The documents are clear, as was the grievor in his testimony, that it was his view that spending time with his father would help him to deal with his illness. The employer had a right to more specific medical information than the grievor's self-diagnosis. It was certainly a self-diagnosis, because his evidence was also clear that he had stopped seeing his doctor in April 2010. [39] Mr. Jarmasz may have taken a too literal approach to the grievor's inquiries on May 5, 2010 regarding leaves of absence without pay. However, when it became abundantly clear from the grievor’s email of July 12, 2010 that he was requesting a leave of absence without pay, Mr. Jarmasz advised the grievor by letter dated July 14, 2010 what was required of him to make such an application. He provided the required form and told the grievor that he was to provide a letter supporting his request. That letter was to include the "reason for the leave, start date and duration of the leave, why there may be no alternatives and expected return to work date." This was a very clear instruction to the grievor. Nonetheless, the grievor saw fit to never provide such a letter. Rather, he - 18 - responded by email dated July 22, 2010 saying that he had already discussed it with Mr. Jarmasz. Notably, it is clear from that email that the grievor intertwines his own illness with his need to spend time with his father. He accuses Mr. Jarmasz of displaying “ignorance or misunderstandings”. [40] Mr. Jarmasz’s response by email dated July 28, 2010 is to tell the grievor that it is a corporate requirement that he provide the supporting letter. He again reiterates from his letter of July 14, 2010 that the letter must include "reasons for the leave, start date and duration of leave, why there may be no alternative and expected return to work date". Nonetheless, the grievor saw fit to never provide such a letter. [41] It was not an unreasonable request that the grievor complete the application form for a leave of absence without pay. Nor was it an unreasonable request that he lay out his reasons, in detail, in a supporting letter. It was made crystal clear to the grievor that those two documents were required in order to advance his request. In effect, the grievor never applied for the leave of absence without pay. He was asked again for this specific documentation by letter dated August 23, 2010. In his reply email dated August 31, 2010 the grievor seems to take the position that his father's illness is a personal family issue. That is, he was not obliged to provide details of the illness. It was his testimony that that email was a sufficient notification to the employer of the reasons for his request. In my view, had that been the only information he provided in the supporting letter, there would have been no basis upon which the employer could assess the request in order to grant. The employer was entitled to a significant level of detail. Again, notably, the grievor's email referred to his personal stress. That is, he intertwined of the leave request with his - 19 - health. Accordingly, the employer’s continued request for medical information relating to the grievor's health was entirely reasonable. [42] When the matter was taken over by Superintendent Mitchell, the grievor was again asked by letter dated September 7, 2010 to provide that specific information. He was also again asked for updated medical information. Rather than provide that information, in a supporting letter, he took the position in his email of September 16, 2010 that he had already told Mr. Jarmasz what the employer needed to know. [43] In Culkeen, supra, the grievor was denied compassionate leave. The grievor's spouse was pregnant. He received a telephone call from her asking that he leave work to take her to her obstetrician. He was given permission to leave immediately. He was not able to return for the next two days. He sought and was denied compassionate leave for those two days. The Board overturned the decision to deny the compassionate leave. It is instructive to note the level of detail provided by the grievor in Culkeen, who was also a Corrections Officer, which is found at page 2: Later in the day, the grievor's wife gave birth to a boy. The birth actually took place at approximately 9:30 PM on April 19. The grievor returned home at about midnight. About 12:20 AM on April 20,The grievor telephoned the institution and informed the officer in charge that he would not be in on April 20 and 21 and the grievor received permission to be absent on those two (2) days. The claim of the grievor is for payment for special or compassionate leave for those two (2) days, namely, April 20 and 21. The grievor and his wife had arranged in advance to have three (3) baby-sitters available when she gave birth which, as already stated, was expected to take place on April 21. When Mrs. Culkeen called the baby-sitters in question on April 19 she discovered, much to her dismay, that none of them were available. Two of the baby- sitters were sisters and it turned out that both of them were then ill with pneumonia. The third baby-sitter advised Mrs. Culkeen that she could not come in because she was writing high school examinations on April 20 and 21. The grievor testified that his wife “scrambled” and was able to find a neighbor to come in and look after their two daughters for a couple of hours while the grievor was at the obstetrician’s office - 20 - with his wife on April 19. The grievor’s mother who lives about ninety (90) miles west of Peterborough drove in to look after the twin daughters. The grievor testified that his mother is 60 years of age, suffers from angina and is physically incapable of lifting the children or looking after two three-year-old children for an extended period of time. The solution was therefore for the grievor to stay at home to look after the children with the assistance of his mother. The grievor’s presence at home became even more urgent on April 21 since Mrs. Culkeen was released from the hospital in the morning of April 21 because of overcrowding in the hospital. To add to his problems, the grievor testified, the twins were both suffering from fevers induced by colds which they had picked up. [44] According to the report of the case, all of that information was provided in writing to the employer. That information was provided in response to a request that the grievor provide "… The details of the particular circumstances surrounding the need for the length of absence involved. More specifically, please provide information with respect to the emergency you encountered, the family obligations you needed to meet, or other particular circumstances or arrangements that you faced during this time". The grievor was asked for and provided further information regarding the difficulties encountered in arranging babysitting and the problems encountered because of the illness of his daughters. [45] All of this detailed information was provided in answer to the question of what family obligations the grievor needed to meet. The grievor in the instant matter never provided any information beyond that he needed to spend time with his father, in part to deal with his own illness. The grievor also says that he told Mr. Jarmasz that his father was an alcoholic. [46] The grievor was asked time and time again to provide, in writing, the circumstances relating to his requested leave. Time and time again the grievor failed to do so and took - 21 - the position that he had already provided enough information in his telephone conversations and emails. He had done no such thing. [47] In Superintendent Mitchell's Correspondence of September 30 and October 5 2010 the grievor was given three clear options, which were as follows: 1. Return to the workplace with appropriate medical clearance OR 2. If you're off work due to injury and/or illness, provide medical documentation from a qualified medical practitioner to substantiate your continued absence from the workplace. This is to include the period of time that you were/are unable to attend work due to injury and/or illness as well as your expected return to work date, along with any medical limitations/restrictions you may have upon your return to the workplace OR 3. If you're off work due to personal reasons and you are requesting a leave of absence without pay as per Article 24 of the OPSEU Collective Agreement, in addition to the Leave of Absence Request/Authorization form submitted, you are required to provide supporting documentation. This form requests that the employee identify why they are asking for leave without pay (detailed information required). In addition to the form please provide in writing how long you are requesting a leave for, start/end dates of your leave request, alternative measures you have explored which would not necessitate a leave, as well as supporting documentation collaborating your request. Please note that this form and the corresponding requested information must be fully completed to be considered by the employer. [48] The grievor's response to the three clear options set out in these two letters was to send to Superintendent Mitchell an email dated October 12 which contained the identical text as that of September 16. That is, he again failed to provide the information requested. The three options set out are legitimate, reasonable requests. - 22 - [49] In my view, the steps taken by the employer throughout were reasonable and comply with the four requirements set out in Culkeen, supra. The employer was not required to “synthesize" the grievor's various emails and telephone conversations. It was not required to guess at what the family circumstances were. Rather, the onus was on the grievor to provide his request, in writing, laying out, in detail, the circumstances that supported his request. His failure to do so, despite being asked many times, and being given many opportunities, cannot be laid at the employer's doorstep. The grievor is responsible for not having aprised the employer, in writing, of the reasons for his request. The grievor was required to exercise one of the three options put before him. He failed to engage with the employer, and, in many respects, behaved, as a matter of fact, in a fashion that indicated he had abandoned his employment. [50] However, that is not the test. The test of abandonment is laid out in article 42 of the Public Service of Ontario Act, 2006, set out above. The grievor was a public servant appointed by the Public Service Commission. He was absent from work without approved leave for a period of two weeks or more. Superintendent Mitchell, pursuant to the authority delegated to him, declared, in writing, that the grievor had abandoned his position and that his employment with the Crown was terminated. Accordingly the termination took effect and the grievor ceased to be employed by the Crown. The Board is in no position to interfere with the termination of the grievor's employment. - 23 - The Decision [51] The grievance is denied. Dated at Toronto, Ontario this 13th day of June 2014. Daniel Harris, Vice-Chair