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Home My WebLink About2014-2290.Williams.15-07-06 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#2014-2290 UNION#2014-0526-0228 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Williams) Union - and - The Crown in Right of Ontario (Ministry of Attorney General) Employer BEFORE Nimal Dissanayake Vice-Chair FOR THE UNION Seung Chi Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Kathryn DuBois Treasury Board Secretariat Centre for Employee Relations Employee Relations Advisor HEARING June 26, 2015 - 2 - Decision [1] Ms. Laura Williams, Court Reporter, has filed a grievance dated May 21, 2014 grieving the denial of her request for special /compassionate leave with pay for December 23, 2013. The grievance came before the Board pursuant to the mediation-arbitration process in article 22.16. [2] The governing provision is article 75 of the collective agreement. It provides: 75.1 A Deputy Minister or his or her designee may grant an employee leave of absence with pay for not more than three (3) days in a year upon special and compassionate grounds. 75.2 The granting of leave under this article shall not be dependent upon or charged against accumulated credits. [3] The material facts are not in dispute. The grievor lived in a basement at Ellesmere and Kingston roads in Scarborough, Ontario. She worked at the court house at 361 University Avenue in Toronto. On December 22nd of December she left a voice message for the scheduling officer that she may not be able to attend work on the 23rd because of the expected ice-storm. On the 23rd she was scheduled to work from 9:30 to 4:30 p.m. When she awoke in the morning there was no power at her home due to the ice-storm. Her residence was in darkness. She could not take a shower or cook any meals. The roads were snow and ice-covered and not cleaned. Many traffic lights were out and there was no bus service. She concluded that it was too dangerous to drive. At around 11:00 a.m. she called on her mobile phone and advised the scheduling officer that she would not be able to report to work. [4] The following day she attended work, and requested that her absence on December 23rd be treated as a day of special/compassionate leave with pay. In response to a request by the employer for answers to three questions, on February 19, 2014, the grievor wrote the following: . What attempt did you make to get to work? - 3 - I woke up in the morning to come to work and made the attempt but I assessed the situation and determined that the roads and weather were treacherous. Therefore I decided to stay home. . Other transportation options? The only transportation option is my car and also the buses were not running because of the ice storm. . How did power outage impact ability to come to work? The power outage impacted me greatly. I had no power in which to see and also no shower to use even though I made the attempt to come into work without having clean clothes and a shower. [5] The employer’s decision was conveyed by e-mail dated April 30, 2014. It stated, “On December 23, 2013 you did not satisfy the efforts required to try and attend work and made a personal decision to stay at home, which does not constitute granting a paid discretionary day. As was communicated to you on April 29, 2014 you have the option of recording your absence as a leave without pay or using a vacation credit”. [6] The union submitted that the offer to treat the day in question as a leave without pay or vacation suggests that the employer considered irrelevant factors contrary to article 75.2. The employer’s failure to explain the basis of the denial suggests that it made no genuine exercise of discretion based on the merits of the grievor’s particular circumstances, but was applying a rigid policy that special/compassionate leave is not available for absences due to bad weather. [7] The employer pointed out that of some 200 employees, only three requested leave under article 75 for December 23, 2013. All three requests were denied. “A lot of employees” reported to work despite the ice-storm. The employer’s information was that while all bus services were shut down on December 22nd, many buses were running on December 23rd. The employer understood that a power failure causes difficulties for everyone. It is for that reason that it requested information about how it impacted the grievor’s ability to attend work. The employer considered the additional information the grievor provided and concluded that the threshold for approving special/compassionate leave for December 23rd had not been met. The employer took into consideration that “a - 4 - lot of employees” made it to work on December 23rd, and concluded that the grievor had not made reasonable efforts to attend work and instead opted to stay home. [8] The employer submitted that it did not consider the possibility of using a vacation credit or a leave of absence without pay at the time it decided to deny the grievor’s request. Once the request had been denied, it had to decide how to record the day for payroll purposes. Therefore, the grievor was offered two options. When the grievor did not respond, the day was treated as leave without pay. [9] It is clear, particularly in light of article 75.2, that the availability of any accumulated credits is irrelevant in exercising the discretion whether to approve a request for special/compassionate leave. See, Re Herring, 2014-1547 (Dissanayake). However, unlike in that case, here it is clear that the offer of using a vacation credit to cover the absence on the day in question was made, not as part of the decision making process, but after the decision had been made. There is nothing inappropriate about that. [10] However, the Board is satisfied that in denying the grievor’s request the employer did not exercise its discretion in accordance with the established arbitral principles. In Re Thurman, 0698/01, (Johnston) at para. 17, the Board wrote: “The employer must exercise its discretion in a reasonable manner having regard to the individual merits of each case, and not simply resort to a rigid application of policy. An effort must be made to obtain all the relevant facts prior to making a decision…”. The Board finds that the employer did not make an attempt to obtain information which was very relevant to its decision, and thereby failed to properly assess the merits of the grievor’s particular request. [11] The employer concluded that the grievor did not make reasonable efforts to attend work. In so concluding it relied on two primary factors. First, that many buses were running on December 23rd. Second that “a lot of employees” - 5 - attended work that day. In the Board’s view, the conclusion that since “many buses” were running, and many employees were able to attend work that day, the grievor also would have been able to attend if she had made reasonable efforts, was an unreasonable assumption made without any factual basis. While many buses in the city may have been running, the employer had no information that there were buses running on a route that would have enabled the grievor to travel from her residence to her workplace. The grievor had informed that buses were not running due to the ice-storm. The employer made no attempt to verify whether the grievor had bus service to travel to work. Similarly, it had no information whether or not any of the employees who reported to work faced the difficulties the grievor faced, such as a power failure and resulting inability to shower or prepare a meal. There is no indication that it had any information as to where the other employees lived, whether bus or other public transportation was available to them, or whether they had other alternate options such as staying with friends or relatives closer to work. Without any of this information, simply because some buses were running and because other employees were able to report to work, the employer jumped to the conclusion, despite the information provided by the grievor about the difficulties she personally faced, that she also could have attended work. That was not a reasonable exercise of its discretion. The employer ignored the grievor’s own circumstances. [12] For the foregoing reasons the grievance is allowed. The day in question shall be treated as a special/compassionate leave with pay and the grievor compensated accordingly. Dated at Toronto, Ontario this 6th day of July 2015. Nimal Dissanayake, Vice-Chair