HomeMy WebLinkAbout1988-0363.Senese.90-02-14· . GRIEVANCE
l/SETTLEMENTBOARD
180 O~VOAS STREET YCESr, TORONTO. ONTARIO. M~ ;Z8-SUITE 2~00 r~-~Ho~£, ~r$/5;8-O~.Se
IN THE MATTER OF AN ARBITRATION 363/89
Under
THE CROWN ]~PLOYEES COT,T~L'~fIVE BARGAINING ACT
Before
QPSEU [ Senese) Ga: ievor
The C~o~n in the Right of Ontario
(Ministry of Community & Social Services) ~ployer
~fore; D. Fraser Vice-Chairperson
M. Vorster .~- Member
M, O'Toole Member
For ~he Grievor: Mitch Bevan,
Grievance Officer,'
Ontario Public Service Employees Union
For the ~loyer: Wesley N. Emerson,
Employee Relations Officer "
Ministry of Community & Social Services
September 25th, 1989
The grievor, Joel Senese, is a Cleaner at the Children's PsYChiatric
Research ~entre of the employer, at London, ontario. He grieves that he has
been denied compassionate leave under Article 55.1 of the collective agreement
for February 1st, 1989. That Article reads as follows:
ARTI~.,~' 55 - SPECIAL AND C0~PASSIC~ATE T:?AVE
55.1 A Deputy Minister or his designee may grant~ an
employee leave-of-absence with pay for not more
than three (3) days in a 'year upon specia! or
compassionate grounds.
The .fact situation is simple and undisputed, On the morning of February
lst, Mr. Senese's regular babysitter, who ls his mo~her-in-law, called in
before he ~as due to leave on day shift, and told him she was ill and unable to
care for his two children~ At that time, Mr. Senese's wife was out of to~n.
He called his mother to babysit, but she had a previous appointment. He then
called a .friend of his wife.'s, to 'baby, it, but ~as unable to contact her. He
telephoned in to work to say that he would be unable to report to work that
day..Subsequently, he applied for compassionate leave fo~ February 1st, but~
~as denied that leave.
It is clear from the evidence that the compassionate leave was denied for
one.primary reason,, which is that Mr. Senese failed on that morning to
teleph°~e an on'grounds day Care facility of the employer called Kidzone. That
facility may.have been able to~take his children on short notice which would
have allowed him to report to work. It is admitted by the employer that 'Mr.
Senese did not know that Kidzone would have taken his children on such shor~
notice, but the employer takes the position that it ~as his responsibility to
find that out, and in failing to do so, he did not make sufficient arrangements
to get an alternate babysitter. In view of this failure, the employer did not
feel that the grievor was worthy of compassion, and denied his request.
3
The union has responded that Mr. Senese in fact had sufficient
alternative arrangements available, which he pursued, and which have ,only.
failed him twice in a period of approximately nine years. The union alleges
that the denial of compassionate leave ~as based on an irrelevant
conSideratiOn, which is.essentially that he did not attempt to utilize a
facility which 'he did 'not know ~as available for ·the purpose. The union·
claims, as a consequence, that the employer has not followed the procedural
requirements of fairness in exercising its discretion as found in Ku~tJes
513/84. The now well-known criteria in that case are found at p.16, and are as
follows:
"1. ~he decision must he made in good faith and
without discriminat ion.
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
t_he individual application urger review.
~ '4. All rele~nt fac-ts must be considered and
conversely irrelevant consideration must be
rejected."
The Kg~ntJes case also notes earlier at p.16 that. Boards of Arbitration
"generally hesitate to substitute their view for that of the decision-maker" as
they are not as familiar as the employer with "the exigencies of the work
place", we view that as an important caution, and are mindful that ottr concern
is properly with the procedural requirements of fairness found in that case,
rather than whether we can make a' "better" decision, which is not our function.
We will note briefly some other matters which are not of concern in this
review. The evidence has shown that management thoroughly investigated the
grievor's request, giving full consideration to it, and thereafter deciding in
good faith and without discrimination. There is an allegation by the union
4
that a written management response to Mr. Senese which recognizes "the need to
treat all employees ... equitably", reflects a "rigid policy adherence",
disapproved of in factor 2 of the factOrs found in the KuvntJes case. In view
of the careful individual consideration given to the grievor's Case~ we cannot
find merit in that allegation.
What remains, then, is the specific question of whether the employe~ is
entitled to view as a relevant fact (and indeed, it was the primary one in this
case) that the grievor had failed to contact Kidzone to attempt to make
appropriate arrangements, notwithstanding his admitted ignorance that such
could be-done. Was he responsible for making that attempt, and in failing to
do so, had he tried hard enough to make alternative arrangements?
.In weighing this question, we are satisfied that there is a
responsibility on the grievor .to make reasonable contingency plans for such a
situation, and 'to pursue those plans before he might be deser~ving of the
compassion sought under Article 55. Furthermore, within broad Parameters~ it
is within management"s' discretion to assess the reasonableness of the plans,
and the vigour with which they were pursued. It is not our function to second-
guess such assessments, but to determine if procedural' requirements of fairness
have been followed.
The KuyntJes case requires that an irrelevant consideration must be
rejected, if such procedural requirements are to be met. The question of
whether the failure to contactKidzone is such a consideration, is doubly
important, because it was not only considered, but was the primary
consideration whlch resulted in the rejection of the grievor's request. In
5
reviewing whether this expectation or responsibility Was unreasonable to the
extent it was an Irrelevant' c6nslderation, we would-note ~he following matters.
When the grievor.'s wlfe was not available, his mother-in-law came to
babysit.. ~ When his mother-in-law was not available', he had not one but two
further arrangements, involving the Services 6f his mother, then his wife's
friend, ~oth of which he unsuccessfully attempted to use. Second, the
breakdown in such alternative arrangements was rare, ~appening' only on a couple
of occasi'ons over a period'of some years. Third, the grlevor was aware of thee
existence of Kidzone, but understood that they only took children in after an
application period of seVeral months, and not on very short notice.
With respect to this factor, there was some evidence given on cross-
examination by two witnesses for the .employer, which suggests that it is
.. unusual to know of, or expect day care centres to be aVailable for emergency,
short-notice admissions.
· Brian Miller, Manager of Housekeeping and Transportation Services for the
employer, knew of the availability of Kidzone for such admissions because he
vas expected to know Ghat as a manager. Janak Jass, an Assistant
Administrat?r, and Eugene Sorin, Administrator, also knew of that availabi, lity,
as ma~geria'l personnel. But none of the three ~it~esses k~e~ firstdhand of
any other day care centre that was prepared to. take short-notice admissions,
although Mr. Miller knew thrbugh a friend of one that did., called ABC and
located near Berkshire Village.. The evidence is not particularly conclusive on
this matter, but it suggests that it is unusual to expect or know of day care
centres that take such admissions. There. was 'alsb no evidence indicating that
ar. ,mploy~e who was not a manager, would Otherwise know o]~ should be expected
to know that Kidzone took short-notice admission~.
We see merit in management's view that an employee has a responsibility
to go to some lengths to make alternate arrangements for a babysitter, but we
would draw the line before the requirement to check-out kidzone, in view of the
above evidence. In vle¥ of Mr. Senese's alternative arrangements, which had
almost invariably worked tn the past, in view of his admitted'lack of knowledge
of the availability of Kidzone, and in vie~ of the evidence which suggesta tl~at
it is somewhat unlikely that day care centres are generally available for
short-notice admissions, we '~ind on balance that Mr. Senese had gone
enough.
We accordingly conclude under the specific circumstances of this case
that it was unreasonable for management to exercise a discretion to deny
compassionate leave,' based on a requirement to have known of the availability
of Kidzone for a short-notice admission, and to accordingly have checked With
Kidzone on the morning of February 1st. We ~find that there was an improper
exercise of discretion as a~result, in that an irrelevant consideration was not
rejected as required by factor 4-in the KuyDtJes case. The grievance
accordingly succeeds and the emplo~r is directed to g~ant a day of
compassionate leave for Mr. Senese in respectr of his absence on February 1st,
1989,'and to be made whole in that respect.
Before leaving this matter, we would caution that the result has turned
on the specific facts of this case. Had there been evidence of any.notice to
the employees of the availability of Kidzone for short-notice admissions, or
evidence otherwise that it was reasonable to expect other day dare centres to
accept such admissions, the result might well have been different, particularly
in view of the careful investigation that management gave Mr. SeneSe's'reguest.
Dated at Ottawa
this 14th day of February, AD 1990
D. Fraser, Vice-Chairperson
M. Vorster, Member