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Home My WebLink About2014-3674.Stubbs.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#2014-3674 UNION#2014-0526-0252 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Stubbs) 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 Alexandra Brooks Treasury Board Secretariat Centre for Employee Relations Employee Relations Advisor HEARING June 26, 2015 - 2 - Decision [1] Ms. Debbie Stubbs (“grievor”) is employed as a Civil Court Registrar. Her grievance dated November 3, 2014, about the denial of her request for special/compassionate leave with pay came before the Board pursuant to the mediation-arbitration process in article 22.16. [2] The governing provision is article 75 which reads: 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. (Note: Throughout the exchanges, both the grievor and management has made reference to article 49, which is the corresponding provision on special/compassionate leave that applies to regular full-time employees. The grievor, as a FTP employee, is governed by article 75. Since the language in article 49 and 75 is identical, in this decision reference is made to article 75 in order to avoid possible confusion.) [3] The material facts are as follows. On October 10, 2014, the grievor forwarded an e-mail to her manager Ms. Adele Di Monte, stating; “I have booked a medical appointment for October 23, 2014, and wondered if I might use a discretionary day. I don’t even know if I have used any. Could you check? If need be I will take a vacation day”. When she had not heard from Ms. Di Monte, on October 22nd, the grievor wrote again, stating that her understanding of management’s position to be that employees should be using vacation days for medical appointments unless more information is provided to assess the request. She questioned the appropriateness of that position in light of article 75.2. [4] On October 30th the grievor wrote to Ms. Di Monte, reminding that she was still awaiting her response to her request. She again made reference to article 75.2 - 3 - with respect to accumulated credits, and inquired about the basis for management’s position that a discretionary day may not be used for medical appointments in the absence of detailed information. On October 31, Ms. Di Monte responded to the grievor as follows: There is no set circumstance for approval of discretionary days. Medical appointments, as a rule, do not substantiate the use of special and compassionate leave. Each request is considered individually, that is, on a case-by-case basis. The employee is responsible for considering all alternatives and options to deal with the situation and to disclose all relevant facts to the manager, including the special or compassionate circumstances that require them to be away from work and the financial impact if support is not provided. Here are some examples of relevant information: . What alternatives have been considered to deal with the situation and why have they been found not be appropriate? . What would be the impact of the loss of income if the request were to be denied? . Could the situation be dealt with during non-working hours? Article 49.2 must be interpreted with article 49.1. Article 49.1 gives the employer the right to grant a request for special and compassionate leave. Article 49.2 precludes the employer from taking into consideration an employee’s accumulated credits, e.g., vacation, as a factor in considering article 49.1. The decision cannot be based on whether or not an employee has exhausted vacation credits or has a high usage of short term sickness credits. You requested a discretionary day under article 49.1 for the purpose of attending a medical appointment and based on this information, your request will not be granted. I hope this information answers your questions. [5] On or about October 10th, the grievor spoke with Ms. Di Monte and advised her that the appointment on October 23rd was with a specialist for the purpose of doing a biopsy. In the absence of approval of leave under article 75 the grievor used a vacation credit to get the day off to attend the medical appointment. [6] The union submitted that despite the employer’s assertion that it considered all relevant facts presented by the grievor, it appears that it did not do so, but instead applied a rigid policy that special/compassionate leave with pay is not available to attend medical appointments. It was further submitted that in - 4 - exercising its discretion the employer considered an irrelevant fact, namely the possibility of using a vacation credit, which was contrary to article 75.2. [7] The employer pointed out that in the grievor’s initial request, she provided no information besides stating that she needed the day off in order to attend a medical appointment. The manager informed her that a need to attend a medical appointment made in advance did not justify the granting of leave under article 75, that each request has to be assessed on its own merits, and that to enable it to assess the grievor’s request, additional facts relating to special/compassionate circumstances are required. In her correspondence of October 31, 2014, Ms. Di Monte provided to the grievor examples of the type of additional information required. That information was not provided by the grievor. The employer submitted that it considered as significant, the fact that the appointment was one booked in advance. It did not constitute an emergency or extenuating circumstance as referred to in the Board’s jurisprudence. [8] It was the employer’s contention that the issue of using a vacation credit was raised only after the request for leave was denied. That was not a factor considered in arriving at the decision. The grievor’s request would have been denied based on its merits, regardless of the status of her accumulated credits, including vacation credits. [9] In reply, the union argued that the grievor had informed that the purpose of her request for leave was to attend a medical appointment with a specialist. The employer had no need for any further information. The types of information it sought in its correspondence dated October 31, 2014 were therefore totally irrelevant. The employer had all of the information it needed. [10] Having considered the material facts and the submissions of the parties, the Board declines to intervene in the employer’s exercise of discretion. The employer did not apply a rigid policy that leave under article 75 is not available in all cases where the purpose is to attend a medical appointment. To the contrary, - 5 - the correspondence in evidence establishes that the employer’s position was that leave may be granted for that purpose, but only where special or compassionate grounds exist. In order to determine whether such grounds were present, it sought additional information from the grievor, and indicated the type of information it was looking for. The Board disagrees with the union that the information sought was irrelevant. The employer questioned about possible alternatives available. Practically in every request for leave on special/compassionate grounds, that would be relevant and significant information. If an employee had reasonable alternate means of dealing with her situation without taking a discretionary day off with pay, that would weigh against a finding that special/compassionate grounds exist. In the instant case, the employer inquired whether the appointment could not have been booked during non-working hours. The grievor did not respond even to that simple question. In light of the grievor’s failure to provide further information supporting special or compassionate circumstances the employer made its determination based on the only information it had. Namely, that the grievor had a medical appointment with a specialist on the day in question. It determined that the need to attend a pre-arranged specialist appointment by itself, without any other urgency or extenuating grounds did not warrant the granting a day off with pay under article 75. It must be noted that the leave under article 75 is at the discretion of the employer, to be granted on “special and compassionate” grounds. When requesting leave under article 75, it is up to the employee to provide all information supporting the existence of special/compassionate grounds. If it is not provided, the employer is entitled to request for that information. When an employee refuses or fails to do that, he/she does so at his/her own peril. [11] In the instant case, the employer decided not to approve the request for leave based on the information it had. The decision making process, and even the conclusion itself, cannot be said to be unreasonable as would justify intervention by the Board. The Board is also satisfied that the possibility of using a vacation credit for the day in question did not form part of the decision making process. Rather, it was an offer made to the grievor following the denial of the leave. - 6 - [12] For the foregoing reasons the grievance is hereby dismissed. Dated at Toronto, Ontario this 6th day of July 2015. Nimal Dissanayake, Vice-Chair