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HomeMy WebLinkAbout1988-0087.Mailloux.89-02-27 CROWN £MPL 0 YEES OE L 'ON TA RIO leo DUN~S St~ET WEST, TOWN'O, ~TARIO. MsG iZa- SUITE 2~ TELEPHONE/T~L~PHONE 180, RUE DUNDAS OUEST, TORONTG fONTARIO) MSG IZ8 - BUREAU 21~ f4 I~l 5~-~8 ~ . 0087/88 IN THE MATTER OF AN ARBITRATIOR Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before TI~E ~RIEVANCE SETTLEMBNT BOARD Between: OPSEU (Dennis F. Mal]lOuX) Grlevor, - and - The Crown in RiDht of Ontario ~' .... ~ Services) Employer (Ministry Of Before:,. M,G, Plcher Vtce-Cha/rDereon - J. McManus Member P. Camp Member ~or the Grlevor: K. Hughes 'Cour~$el Cavalluzzo, Hayes, Lennon Barristers & Solicitors For the Employer: G.F,J. See ,~n~or Staff Relations Offlcer Hearlno: July DECISION .Grievor Dennis Mailloux, a correctional officer' employed at the Sudbury :Jail, claims that he was wrongfully denied one day of compassionate leave on December 1997 when he failed to attend at work because of inclement weather. The pertinent provisions of the collective agreement are as follows: ARTICLE ~5 - SPECIAL AND COMPASSIONATE LEAVE 55.1 A Deputy Minister or his designee may grant an en~loyee 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 this Article shall not be dependent upon or charged a§ainst accumulated credits. The material facts are not Jn dispute. The grievor has served some twelve years, as a correctional officer~ and has worked in that capacity since 3anuary of 1982 at the Sudbury 3ail. Mr. Mailloux lives in onaping Falls~ located in a rural area thirty-five kilometers northwest of Sudbury, On December 15, 1987 he was scheduled to work the night shift from 19:00 hot'rs to 07:00 hours the following morning. Following tt~e completion of his pr[or shift at 7 a.m. on the morning of December 15~ 1987 the grievor drove home [n what he described as clear and cold weather. He slept during the day, waking 'up at around ~ p.m. He then discovered that a substant[a! ~nowfaJl had blanketed the area. 'Although the grievor is not sure lWhe.ther it was still snowing at that point~ he testified that the storm had been severe and that snow was still driftin§ t-~ea vi J>,.' When Mr, Mailloux emerged ~rom his house, which he describes as being in a fairly open area, he found four foot snow drifts blocking his driveway. AS the grievous driveway is fairly long, he iudged that it would have been impossible for him to sh~ve) it out by hand. He then proceeded to obtain the assistance of a neighbour who has a tractor equipped with 'a snowplow. With his neighbour's assistance the grievor was finally, able to clear his driveway of snow. The evidence discloses that prior to going to his neighbour's the grievor had decided he would not go to work because of the weather conditions. He so advised his .supervisor by a telephon~..call at approximately lg:O0 hours. The grievor relates that his decision was based on the~fact that his normal.means of transport, a four-wheel drive truck, was unavailable to him as it wa~ being serviced at the time~ Mr. Mailloux explains that his family's.second vehi'cte, a Ford Thunderbird sedan, was available to him, but' that he considered that it. was unsafe to use it in the weather conditions then at hand. The grievor explains that he resides.on Simmons Road in Onaping Falls. He is required to travel a distance.of some three kilometers on Simmons Road and Gordon Lake Road before reaching Highway lq~, his main access route to Sudbury, over which he must travel some thirty-two kilometers. Mr. Mailloux explained that when he first attempted to move the Thunderbird in his driveway it got stuck about ten or fifteen feet from the garage. He then formed the opinion that even if he was able to clear his driveway it would be unduly risky for him tO attempt the trip.to 5udbury in the sedan. On December 1~, ,19S7 the grievor made a verbal request to Assistant Superintendent F-rickson for a ~pecial leave o[ absence for the shill he missed. He was -3- then told he would have to make his request in writing. That same day, the grievorI filed a 'written reques.t in the following form: Mr. AJ H0oson Superintendent - Sudbury 3al! Sir: On Tuesday December 15, 198,7 1 was unable to work at my scheduled 19:00-0:700 hrs. shirt. The inability to. arrive for my tour o~ duty, Was due to a snow storm, which left my vehicle stuck in my driveway. I would like to request special leave tot that day. For your info,_marion. Thanking you in advance. "D. Mailloux" Mr. Al Hooso~, Superintendent ut the Sudbury 3ail, gave evidence explaining the manner in which the grievor's request was considered and the decision ultimately taker. AS the chief administrator of the correctional institution, Mr. Hooson has authority to approve compassionate leaves of absence requested pursuant to article 55 of the collective agreement. Mr. Hooson relates that he has been provided with MinLstrY guidelines regarding the application o! article 55 (previously article 5~). The guidelines, dated M~rch 10, iggl and issued over the signature of Mr. 3. Benedict, Manager, Compensation and Staff Relations are as follows: RE: SPECIAL & COMPASSIONATE LEAVE PROVISIONS In light of negotiated changes to Article 5~ '(Special & m . Compassionate Leave) of the Collective Agreement there is a need· to state more clearly the application o! its provisions in · order to maintain consistency throughout the ..hginistry. Although Article 5t~ and Section 80(1) ut 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 each application for special and compassionate leave before. deciding to grant or. deny the Without limiting the generality of the foregoing, and on the particular circumstances~ the following types of considerations may be taken into account: I. The needs of the work place (ag. staffing and operational requirements). 2. The importance of the request to the employee and the- hardship caused by denial. 3.In family_ matters, the nature of the relationship and the . ur§ency'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. 5.~ Whether the denial or granting of the leave would constitute a form of discrimination, i.e. similar cases 'should be treated alike. Normally~ however~ the provisions of Article 5~ are not appt~ed in the following circumstances.' - - reiigious holidays - weather conditions - self development & written examinations - an extension of maternity leave - mandatory referrals - sickness of lamily members (subject to above mentioned circumstances) - weddings - car breakdowns - citizenship applications - extension o! bereavement leave - medical appointments - moving · - legal matters - attending graduations For these situations, employees may, o! 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 5/4 or section 80(1) of the Regulations would normally not be applicable. Managers are obliged to ~nake a serious and diligent enquiry into the facts o! each case before rendering a decision to grant a leave of absence under Article 3~ or Section 80(1) of the Re§ulations and to consult with Regional Personnel ;. Administrators before such a leave is granted.. Copies o! the employeefs written request for such ieave and the manager's decLs~on (Leave of Absence Form) are to.be retained on the employee, s local personnel file for audit purposes. Mr. Hooson" testifies that in considering the request o[ an employee for' compassionate leave he keeps the guidelines in mind, considers whether the person be hurt if the leave is not granted, takes into account the needs of the workplace and whether the employee made efforts to make alternative arrangements. He also considers _.. whether leave has been g~nted p. reviously in comparable situations. Mr. Hooson further explained that with respect to weather conditions he would only be inclined to grant special leave if the r°ads~were tc~taQy impassable. A Sudbury resident for fifty-three years~ he relates that it has never, in his experience, happened that employees were unable to get to work because roads in the area were blocked. In considering the grievor~s request Mr. Hooson took into account his own personal experience o! the snow,aU. He relates that ~t began to snow at approximately 2 or 2:30 .p.m. and that the snow was not, in his opinion, parQcularly heavy. Mr. Hooson further states that when drove home himself at approximately ~ p.m. he found that the roads that he travelled over were in a passable condltion which would not have · prevented an employee from coming to work. Mr. Hooson ~urther became aware that no other employees~ some of whom are required to travel distances comparable to the grievor,, were unable to make it into work on December [5, 1997 because o~ the weather conditions. -6- The evidence establishes that Mr. Hooson did not, however, base his decision solely on his own observations. He instructed Mr. Kenneth Ryan, a shift superintendent at the Sudbury 3ail to investigate further the weather and'road conditions Which m6re particularly affected the grievor on the day in. question. Mr. Ryan testified that he contacted both the Sudbury weather office and local road authorities to obtain more precise information with respect to weather an road conditions. On 3anuary 7, 1988 Mr. Ryan filed the following report with Superintendent Hooson: Sir, I have checked knto the request by Mr. Maiiloux CO2 in regard [to] getting Special Leave for his shi/t missed on Dec. g7. I called the Sudbur)~ Weather office at the Sudbury Airport and spoke to. a Mr. 3ack Decordey. He informed me that on Dec. 15jg7 a snow fall started at 12:35 hours and that 12.4 centimeters ot snow Jell between 12:35 and t9:00 hours inches). I spoke to Mr. Gary Lacelle, Superintendent of Roads for the Town ot Onaping Falls where Mr. Mailloux lives. He stated that at no time during the l§th or 16th of December was Simmons Rd. impassible and that is the road into which Mr. Mailloux's driveway exits. Mr. Maill°ux's driveway may indeed havre been blocked, but the roads in the area and to Sudbury were all passable. On the basis of the guidelines provided to him, his own observations and the report of Mr. Ryan, Superintendent Hooson decided to decline the grievor's request. In a letter date 3anuary 20, 1955 he advised him as (ollows: Dear Mr. I~lailloux: RE: SPECIAL LEAVE You~ r.equest o! December 15, 1957 for Special Leave, because your vehicle was stuck in your driveway due to a snow storm has been denied. On the. day in question, there was a snowfall of centimeters (~.87) inches) as reported by 3ack Decorby, of the Sudbury weather office. The storm started at 1235 hours and ended at 1900 hours.' Gary Lacelle, Superintendent of roads for your area informed us that on the date in question, at no. time during the 15th or 16th of December, i987 was your road (Simmons Road) impassable.~ For your information, Yours truly, "A.G. Ho°son'', iSuperintendent )~hiler the grievor's request ,was denied, it is common ground that he was allowed to apply accumulat~ed lieu time for statutory holidays to receive payment for the day. It is not disputed th Jr Mr. Hooson did not personally interview the §rievor. Nor was .Mr. Mailloux aware of Mr. P. yan's investigation. 'No one asked the grievor for any ' details other than those which were related by him in his written request for compassionate leave. In a nutshell, the employe~ accepted at face value Mr. Mailloux's statement that his vehicle was'stuck i'n his driveway, and concluded that it was nevertheless possible for him to make it in to work, based on the fact that al! other employees had done so, that the snowfall was not excessively heavy and that the road on which the grievor resides was reported by the local road maintenance authorities as being passable at the time. · Counsel for the Union submits that the circumstances do not disclose a · sufficient inquiry on the part o! the Employer. She submits that the onus is upon the Employer to demonstrate that the inquiry which it made was reasonable and that the Superintendent's discretion was exercised in a reasonable and informed fashion.' CocJnsel submits that it was not enough for the Employer to consider the weather and road conditions generally in the area, .and that it was incumbent upon Mr. Hooson to obtain more specific in[ormation /rom the grievor with respect to his own circumstances in coming to a decision. Counsel there[ore argues that the grievance should succeed on two alternative grounds: firstly~ that the Employer has not demonstrated a degree of inquiry commensurate with the reasonable exercise of its discretion; and~ secondly, regarding the merits o~ the first issue, that in Ii§hr of the evidence disclosed at the arbitration hearing, special leave shouId have been granted in the circumstances. The Employer's rep?esentat[ve makes a two-fold argum~ent. F[rst[y~ he subm, its ~that the grievor has failed to c[emonstrate that there were special grounds that justified the application o~ the Employer's discretion, in his particular Circumstances. Stressing that al! other employees made it to work, and some of them lived farther away than the §rievor, the ~mployer's spokesperson argues"..that a four inch snow:Jail in December is not an extraordinary happening, and that given that the grievor resided in a rural area by choice,'he should not expect special protection on compassionate grounds. He stresses that it is the responsibility o! the Employee to come to work when scheduled, arguing that such factors as the state of the grievor's [our-whee! drive vehicie~ the ien§th of his driveway and the weather conditions on the day in quest[on .are not factors which should require the F-mployer to shoulder the cost of the grievor's L-abitlt7 to attend at work. He maintains that the circumstances were not~ in fact, beyond the §rie¥or's control. Secondly, the Employer's spokesperson submits that, in any event~ ]VIr. Hooson did exercise his discretion in a reasonable manner. The Employer's spokesperson argues '.~hat ,'rjr. Hooson ~urned his attention to the merits of the §rievor's case, looked at of the available facts and came to a reasonable conclusion that compassionate leave should not be granted in the circumstances. The Employer maintains ~hat whatever this Board may think Of the merits of Mr. Hooson's decision,, if it is satisfied thai., he exercised his discretion in a reasonable manner, we are without jurisdiction to second guess or reverse his decision. The parties.referred the Board to a number of prior decisions rei~arding the application of article 55 of the collective agreement, including situations in which employees were unable to attend at work because of inclement weather. Grievance Settlement Board File Qg ~m/83 concerns the decision of a panel chaired by Vice-Chairman R.3. Roberts in respect of a-grievance against a denial of compassionate leave attendance at the funeral of the employee's spouse's grandmother. In its decisior) dated April Il), 198~ the majority of the panel noted that in the circumstances where the §rievor was allowed leave to attend the funeral, with banked holiday credits charged against his loss of income for the day, no vio!ation of article 55.! {then 5q.I) was disclosed in the. employer's decision to deny compassionate leave, in considering the standard of arbitral review to be. applied the board made the following observations at pp. 10-12: In light of the current trend in the courts, it seems to us that we retain the power to review against some standard of reasonableness the decision o! management in the present case. The decision was not made under a management rights clause. It was made under Article Sq.! o! the collective agreement, Nothing in Article ~t~.l expressly empowered management to exercise unfettered discretion in making a decision under the Article. Nor did Article )~.1 expressly forbid arbitral review o~ decisions thereunder. This brings us to consideration o! the standard o[ reason, ableness against which the decision of managelnent might be measured, Arbitrators have enunciated many standards of reasonableness, ranging from fuJJ-sca]e review of the -10- correctness o! a decision to measurement against a more restricted standard of good faith. General[y, the question o! which standard to apply might be taken to depend, upon interpretation of the Article in question -- for example, its precise wording, its relationship to other pro. visions of the agreement, the importance of the decision to the parties, and, the' jurisprudential backdrop against which the wording of the Article was negotiated. Consideration of these factors might serve to indicate the scope of discretion that the parties .. intended rn~nagement to have in making decisions under the' Article. In the-present case, there was evidence that when the parties negotiated Article 3q. 1 they contemplated that management would exercise its discretion under Article ~.1 in fairness and good faith. The Employer had issued guidelines to this effect which expressly referred to their being in response tO certain negotiated changes in Article )4. There also was )urLsprudence to this effect.. See, Re Elesie and Ministr~ of Health~ G.S.B. #2#/79 (Swin~on), at ~-7. See also, Freeman and MLnistrylof i Health (19~,D, G.~.B. #87/80 (WeatheriU), where the Board said, "One [comment from the EJesie case. with which we agree] is that ... compassionate leave is granted to an employee when he or she is in a situation deserving of sympathetic treatment. Another, of course, is that the board must show deference to the exercise of managerial discretion ... ' and not decide on the 'correctness' of that exercise when the issue is one of reasonableness, it should not construe 'reasonable' to mean 'any possible reason'. In terms of the criteria applied in the instant case, we do not consider it reasonable to construe 'necessit)~ as meaning 'absolute necessity'." A subsequent award of a panel of the Grievance Settlement Board, also chaired by Mr. Roberts, further elaborates the stan~lard of arbitral review to.be applied with respect to management decisions under Article )5.1 of the collective a&reerneflt. In GSB 0193/g5~ in an award dated. September l§, .Ii)g7, the panel q~animously 'rejected a grievance in circumstances which are factually very close to the case at hand. In that case the grievor was~ because of inclement weather, unable to attend to perform his work as a correctional officer on a night shift at the ©uinte Detention Centre. Mana§ement's decision was that leave should be granted to 'the Erievor but that it _i.lm should be chargeable against accumulated vacation credits or lieu days, and not be paid leave granted on a compassionate basis under Article 55.1 (then 5/~.1) of the collective agreement. At pp. 8-I2 the board made the following observations which we consider ::." instructive: At the conclusion of the hearing the parties made submissions regarding the extent to which this Board might review the exercise of management discretion under a specific provision of the Collective Agreement such as Article Sq. in light of a recent decision of the Board on similar facts and argumeqts~ Re .. O'Brien and Minist~ of Correctional Services (I987), G.S.B. l! 1 t57/S6 (Gandz), we do not need to make an extensive review of these subrrtlssions. Like the panel in that case, we incline to the view that unless the CoLlective Agreement specifies otherwise, the parties should-be regarded as having ~-. contemplated-that a discretion under a specific provLsion w0tdd be exercised reasonably. See icl at p.7. In O'Brien, the Board concluded that management had adopted an unreasonable procedure in evalUating the request for spec_-ial or compassionate leave based upon weather conditions of another Correctional Officer at Quinte Detention Centre. This request ~did not relate to the same storm as the grievance in this matter. Commenting upon the testimony of Mr. Meyer in that case, the Board said: It became apparent during the testimony and cross . examination of Mr. Meyer that the only basis on .:i-~ which he would have granted special leave was if there had been' some natural or other catastrophe associated with the weather or the weather problem had been something o! the magnitude o! a hurrioane~ In other words, he would never have utilized the special leave provision of the collective a~reement ii the only impact of the weather had been to prevent the Grievor from attending work. Time and time again Mr. Meyer, in his testimony, emphasized that weather conditions were not aa acceptable reason for ! missing work and for receiving special leave. He stated this in verbal testimony at the hearing and his reply to the Grievor's request (or the leave to be granted was "weather conditions do not apply'; ... EL at Because Mr. Meyer applied an arbitrary "decision-rule", in the view o[ the Board, and did not make "a reasonable attempt to inves{i§ate the situation and arrive at a reasoned decision," id. -12- 1at p. l l, the Board concluded that an unreasonable procedure has been followed. -. The 'facts of the present case 'are different. Here, Mr. Meyer did not end up applying an arbitrary rule ag~ainst granting specia! or compassionate leave to cover an absence due to weather conditions. When he reconsidered the application of the grievor in light of the discovery of the memorandum of 3anuary Il, 1955, he gave full consideration to the merits of the grievor's situation. On the record, we have no hesitation in concluding that Mr. Meyer came to his decision to refuse special or compassionate leave reasonably and upon sufficient grounds. Not only did he consider the circumstances of the grievor and weigh them against the needs of 'the institution, he also weighed other relevant criteria such as the ability of other employees on the grievor's shift to rn~e it into work aver equally long or even longer distaqces. As well, he indicated that there were circumstances in which he might consider .it to be appropriate to award special-or compassionate leave due to weather conditions,.'for example, i! it were impossible for the employee to get into work because the roads were closed. Nor do we think that it was unreasonable tot Mr. Meyer to evaluate the grievor's request against high standards. This was not a mere request for a leave of absence which' m!ght demand the application of more 11bera! criteria. The §rievor. was granted a leave of absence. The question before Mr. Meyer was very narrow. It was whether the leave should be paid or unpaid, La. whether the Ministry should pay the §rievor despite his absence from work or charge it to one o! the grievor's accumulated entitlements such as vacation credits or lieu days. It seems evidence, that it would not be unreasonable to apply a more conservative approach in evaJuating a request that a leave be paid. And this is reflected in the nature o! the leave to, be granted under Article 54.1. It is to be granted "upon special or compassionate grounds." It is not for this l~a,td to determine ~fhether Mr. Meyer~s decision was correct. See Re young and MinistrY lOf Community and Social Services (1979), 2~ LJL.C~ (2d) (Swinton). kt that case~ the Board statecL "An' arbitration board ..o must decide whether the employer has acted reasonably and without discrimination and has turned its mind to the merits of the particular request. 1! s~tis[ied that these criteria have been meh the board must deny the grievance, even if it dLsagrees 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 the decision~ not its 'correctness' in the board's view. Such an approach is the proper one to adopt in situations such as leave of absence cMes, ~d~ere the collective a~Feement sires the employer a broad discretion and where the board has fandlhrlty than has the employer with the needs of the work idac~u Id. at pp. 1q7-~$. I~, as ~e have found, wmnasement . exercised it~ discretion in a reasonable manner, _mir ~ is. exhaustecL [ emphasis added This Board was directed to two prior decisions of panel~ of the Grievance Settlement Board which did aiiow grievances filed by. employees who were denied compassionate leave in circumstances where they were unable to attend at work because of inclernent weather. In, one case (O'Brien - GSB 1157/&6), the panel unanimously allowed the claim for compassionate leave flied by a correctional officer employed at the Quinte Deten. tion Centre on the basis of his inability to attend at work on two separate days in 3anuary and February 198J5 because of severe winter weather conditions, in that case the panel effectively overturned the decision of Mr. Meyer, the Superintendent o! the facility denying the §rievor's request for compassionate leave. · The reasoning o! the board is, in our view, succinctly reflected in the passase reproduced above, as well as.in the followlng: It was also apparent that ~r. Meyer did not believe that the Grievor was unable to get to work .on the days in question. Mr. Meyer testified, supported by attendance records, that other employees were able to §et to work that day from places as far afield as t~icton~ Belleville and Kingston and that the only absentees were among those with chronic illness.· Indeed, Mr. Meyer saw the very late grievance as .a. device by the Union to get special Xeave extended to cover poo,r weather conditions and was concerned that it would then be used extensively for that purpose. Mr. k~eyer took ~o d~rect or indirect steps to check-out the Grievor's story. His belie( that the Grievor was lying was based .entirely on his own assumptio~ that the roads would have been cleared and that the Grievor would have been able to get into work~ albeit a ]ittie late. He did not ]nterview the Grievor, not do we have evidence that Mr. Tocher conducted a systematic investigation. He did not believe that, on the ~irst occasion, the supervisor had pressed the Grievor to state whether he was' cominl~ into work or not. But Mr. Meyer did not even check [his out with the suPervisor concerned. At pp. 11-12 the Board expressed [ts Conclusion in the following terms: When it comes to the exercise of judgement, we agree with the prevailing view that arbitrators should defer to managerial judgement in areas where management has discretionary power provided that it is not exercised in bad-faith, capriciously, or discriminatority. As has often been said, management has the right to be wrong.. In this case we do not believe that the employer made a reasonable attempt_to investigate the situation and arrive at a reasoned decision. We think that there was' an arbitrary rule invoiced that o"weather conditions'are not' covered by Ar{lcle I)4" and that, in any case, Mr. Meyer decided not to believe the Grie.vor's story, without looking seriously at the facts or the situation. In this respect, the employer did not properly exercise [ts discretion as is'contemplated by the collective agreement. -It is important to recognize that nothing we have said is to suit[est that the employer must grant such special leave for adverse weather conditions. What we do assert is that the employer must consider such a request and make a reasoned judgement based on the merits of the individual case. A similar result was .arrived at in an earlier decision of this board in the Kulrantjes case (GSI))13/8~), That grievance concerned the claim of an employee assi§ned as a Snowplow helper in the Burlington .Patrol 'Yard of the Ministry o~ Transportation and Communications ior compassionate leave when he was unable to attend at work on February 28, 1954 because of a snow storm. The rna)ority of the board found in favour of the grievor. In that case much of the debate between the parties concerned'the employer's assertion~ based on the decision o! the Ontario Court of Appeal in Re Metropolitan To~ento Board of ~i~ ~~U~ T~to PoU~ ~flm (1981) 12~ D.L.R. (3d)58~, that the discrefi~ ~:' of management in decisions concerning the granting of c~mpassionate leave is:?ot subject to arbitral review. The b~rd reject~ that ~sition, basing itseU l~ly reasoning o[ Arbitrator Swan in Re ~ P~ N~ H~ ~ ~t~fi~ U~, ~ ~ (Jgg3) 9 L.A.C. (3d) ~7 at pp. 1~9-1~3. In the P~ decision,. Arbitrator Swan quite corr~tiy asserted that the v~ discretion in m~agement by the terms Of a collective agreement does not necessarily [~ply that the exercise o{ such a discretion is immune {rom arbitral review. In ~upporting that conclusio~ Mr. Swan reached b7 ana)ogy to the exercbe o{ d~cretion by statutory decision ~kers,~oting that although courts do not substitute their own view as to the correctness o{ such decisions~-they do review the dec~sion making process to ensure that it has ~olIowed minimum s~ndards o( g~ Iaith, ~r~ ~rom arbitrariness and discrimination, and that the decision maker has not .~etter~ discretion by the rigid application o{ a preordained ~licy or by a ~ailure to turn or her mind to the specific merits o: the case to be decided. Mr. Swan. re{err~ m T~ generally to the principles summariz~ in Mullah Ad~n~trafi~ ~w (C~we~, 1973) at para. 107. in the ~ties case the majority o£ the board appears to have adopted what it described as the administrative law concepts governing the exercise of discretionary power under statutes to.the review of management decisions under collective a~reernents which involve a degree of discretion. At pp. 16-17 the majority stated the following: In cases involving the exercise of managerial discretion, Boards i of Arbitration generally hesitate to substitute their view for that of the decision-maker, which Js a recognition of the fact that Boards have less familiarity than does the Employer with the exigencies of the work place. However, Arbitrators must ensure that decisions are made within the confines of certain · minimum standards of administrative )ustice. Those administrative law concepts relating to the proper exercise of discretion include the following considerations: 1) The decision' must be made in good ;[aith 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 individua! application under rev Jew. Al! relevant [acts must be considered and conversely' irre]evant consideration must be rejected. In the applical~!on 0f those minimum guidelines to the evidence presented~ the Board Js not satisfied that the F~mp]oyer has given adequate cor~]deration to the procedural requirements of fairness as set out above. At the He~ring~ the Employer presented insufficient evidence to establish the nature o! 'the enquiry during which management exerciseci its decision ,making process. There is no evidence to establish when and where the enquiry took place, or wh(~ was in attendance at the enquiry~ or the extent of the Employer's jnvestigation. In the KuTantjes case the,grievance was allowed on the basis that~ much as in the O~riea case~ management made insufficient efforts to investigate the merits of the grJevor's claim, and in so doing failed' to exercise its discretion in the manner contemplated by the collective agreement. This panel has no difficulty with the conclusion reached in the Kuyantjes award, nor in any of the other awards reviewed above. ~/e do have concern, however~ lest any confusion evolve from the reference to administrative ]aw standards as they may relate to the scope of arbitral review. That concern is prompted in part by the positio'n of the Union in this case, the thrust o! which is that in a Rrievance of this kind the -17- burden is.upon the Employer to establish that it has conducted a full investigation, has considered all relevant material, and has exercised 'its discretion in keeping with the standards that govern the decisions of persons exercising statutory powers of decision, In our view the approach urged upon this Board bY the Union risks unduly judicializin§ decision making in the day to day management of the E[mpioyer's operations. Acceptance of the Union's position would be perilously tantamount to requiring the F-mployer to conduct'an inquiry, on quasi-indicia! lines, every time a request is made by an employee which requires the 'exercise of the Employer's discretion. The consequqnces of such an approach ~hould not be minimized. The exercise of statutory powers of. decisions and' the making of decisions by an employer in the contractual framework of a collective agreement in the day to day operation of an enterprise, be it pri. vate or public, are two very different things. The prospect of boards of arbitration striking down management's decisions on the basis that an officer of management failed to conduct a sufficiently thorough' investigation, 'asked himself or herself the wrong'question or misdirected himself or'herself in some material way, to borrow the well-worn phraseology of administrative law, risks converting a collective agreement into an instrument for management by arbitrators. In our view such broad powers of review should not be found unless they are supported by the clear terms of a collective agreement. In a case such as this the legal or evidentiary burden is upon the Union. It must establish~ on the balance of probabilities, that the Employer has failed to exercise its discretion in a manner that is untainted by arbitrariness, bad faith or discrimination. In considering that question a board of.arbitration must not lose sight of the fact that the grievor is the party with the best first-hand knowledge of his own circumstances, including those facts which' would justify the application of the Employer's discretion in his favour. The grievor is entitled to have the merits of his case fully considered. By the same tokens however, it is he who bears a commensurate responsibilitY' to. mak~ all pertinent facts known to the managerial decision maker. In the instant case it was made known to the grievor that his request for compassionate leave should be submitted in writing. He then Wrote a memorandum to his 'superintendent simply stating that his vehicle had been stuck in his driveway clue to a snow storm.. He did not then explain that his four-wheel drive vehicle was unavailable to him or as$~rt, as he did at the hearin§, that th~ road where his home is located was, in his view, impassable or constituted a serious hazard for travel in a two- wheel drive sedan. It may also be noted that on the day of the storm, the §rievor made no attempt to .obtain information from police or hi§hway authorities with respect to the general condition of ro~ds in his area, did not attempt to arrange any alternative means of transportation and was, consequently, unable to relate any such efforts as pert of his request for compassionate leave. The evidence discloses that Mr. Hooson r. eceived and considered the grievor)s written.request. He went further, instructing Mr. Ryan to obtain information boah with [aspect to the snow fall and road conditions in the grievor's area at the time. Mr. Hooson also adverted to his own observations about the weather on the day in questi0~ and the fact that all other employees, soJ~ne of whom resided farther IKon work than Mr. Mailloux, did make it to work that evening. In the Board's view there is' nothing [n the process of dec[sion 'disclosed in evidence to establish that the decision made by Mr. Hooson wz~s arbltr.ary, discriminatory or arrived at in bad faith. In Our view it was not incumbent on Mr. Hooson to convene the equivaler~t of an oral hearing or to interview the grievor presumably to consider his request. Requiring a written submission from Mr'. Mailloux gave him a reasonab,,le opportunity to put the merits of his case to the person having the discretionary power of decision. ~/hile ,Mr. Hooson expressed reservations about weather conditions justifying the grant of compassionate leave~ he did not fetter hi~ discretion by adherence to any rigid poIicy, and specifically, stated that in deserving circumstances extreme weather conditions might justify Compassionate leave. Mr. Hooson plainly turned his mind to the merits of Mr. Maiiloux's request~ considered all relevant data available to him~ some q.f_ wh'ich was'obtained at his own initiative throu§h the investigatory efforts of Mr. Ryjn~ and arriyed at a considered judgement denying the grievor's request. In the E~oard's view the' Employer's decision was therefore arr'~ved at in a manner consisten.t with the collective agreement and the grievance must therefore be denied. For the purposes of' clarity, it should be emphasized that we have limited the scope of our review in the instant case to an examination of the method by which the decision of Superintendent Hooson was arrived at. In our view even if we were of the opinion that the Superintendent's decision was wrong~ for example on the basis that contrary to the report which he received~ the road in front of the grievor~s home was in fact impassable; we would still deny the grievance. Even if the superintendent had been faced with conflicting evidence in the form of the grievor'~ description of the road in front of his house and the contrary account of local road authorities, Jt would be for the Superintendent~ and not for a Board o[ Arbitration, to decide which version is to 'be preferred in ail of the 'circumstances. ,~s Vice-Chairs Swinton a'nd Roberts have clearly state~, it is not the place of a board o! arbitration to determine whether -29- mana§ement*s decision was "correct", If the evidence discloses that the employer has acted reasonably, without discrimination, and has applied its mind to the merits o! the employee's request in a way that is devoid o[ arbitrariness or bad [aith, the §rievar~ce cannot succeed. For all of the foregoing reasons the grievance is dismissed. DATED at Toronto this 23th day of February, 1999. M~G. P~c~tier - Vice-Chairman