HomeMy WebLinkAbout1988-0297.Carere.89-01-25 ONTARIO EMPLOYES DE LA COURONNE
CROWN EMPLOYEES DE L 'ONTA RiO
GRIEVANCE C,OMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST, TORONTO, ONTARIO. M5G 1Z8- SUITE 2100 TELEPHONE/T~'.L~'PHONE
180, F#JE DUNDAS OUES7~ TORONTO, (ONTARIO) MSG 1Z8 - BUREAU 2100 (416) 598-0688
0297/88
IN T.HE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAIb]ING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between: OPSEU (C. Carere)
Grievor
- and -
The'Crown in Right of Ontario
(Ministry of Revenue)
Employer
Before: D.' Fraser V~ce-Cha~rperson
S. Hennessy Member
M. Wood Member
For the Grievor: Howard Law Grievance officer
Ontario Public Service Employees Union
For the Emo]oyer: M. Catherine Osborne
Counsel
Sanderson, Laing
Barristers and Solicitors
September 15th, 1988
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The '6rlevor, cynthia carere, alleges that she w~s wrongfully denied
leave-of-absence with pay under Article 52-Short Term Sickness Plan of the
collective agreement between the parties for the period April 12th to 20th
1988. She had earlier applied for and been granted vacation with pay for that
period under Article 47-Vacations and Vacation Credits, but was sick during her
v~¢ation. After her wcation, she sought to have the day~. of vacatio~ with fry
changed to leave-of-absence with pay under Article 47, with the result that the
accumulated vacation credits used up, would be restored to her, and she would
draw upon her sick leave credits instead.
This change would entail a reschedullng of hei vacation, and such is
possible under Article. 47.7 of the collective agreement, "with the approval of
the Deputy Minister." That approval was denied. The arguments made by Counsel
on her behalf that such denial was wTongful were, in summary, that she was
entitled to 'use her sick leave credits under such circumstances; and
alternatively, that i£ such a use required the exercise of a discretionary
power in the Employer to reschedule her vacation, that disczetion .was exercised
in an unreasonable and discriminatary manner in failing to reschedule.
Counsel for the Employer responded by submitting first, that no
entitlement or right to use sick leave as the Grievor desired, exists in the
collective agreement, that the rescheduling sought was a discretionary power
and the consequent denial was a reasonable exercise of discretion; and that in
any event, the evidence does not prove that the Grievor was ill for the period
in question.
Articles of the collective agreement relied on by Counsel include the
following:
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"Article 47 - VACATIONS AND VACATION CREDITS"
47.7 An employee with over six (6) months of continuous
may, with approval of the Deputy Minister, take
vacation to the extent of his vacation entitlement
and his vacation credits shall be reduced by any
such vacation taken. For this purpose, an employee
may include any continuous service as an employee
in the Public Service of Ontario immediately prior
to his appointment to the ·civil service.
"Article 52 - SHORT TERM SICKNESS PLAN
52.1 An employee who is unable to attend to his duties
due to sickness or injury is entitled to leave-of-
absence with pay as follows:
(i) with regular salary for the first six (6)
working days of absence,
(ii) with seventy-five percent (75%) of
regular salary for an additional one
hundred and twenty-four (124) working
days of absence,
in each calendar year.
52.2 An employee is not entitled to leave-of-absence
with pay under section 52.1 of this Article until
he .has completed twenty (20) consecutive working
days of employment.
52.11 Employees returning from L.T.I.P. to resume
employment in accordance with Article 42.10 must
complete twent~ (20) consecutive working days of
employment to qualify for benefits under the Short
Term Sickness Plan."
Prior to the Grievor giving evidence, a witness named Mary Lou Fletcher
gave evidence on behalf of the Union. We shall describe her testimony and
comment on. it before proceeding to the Grievor. Mrs. Fletcher is an Interest
and Penalty Assessor, Accounts Section, Corporation Tax Branch of the Ministry,
and she is classified as an OAG 10. .In early 1988 she reguested vacation leave
for the period March 14th to 18th, and that request was approved. She fell ill
in February, and was on sick leaVe from February 22nd to March 18th, the latter
period encompassing her approved vacation leave. Her supervisor was aware of
her illness, and arranged that she was on sick leave for the entire period,
including the five days of approved vacatlor, leave. However, Mrs. Fletcher
does not work in the s~e unit as the ~rlevor, and consequently has neither the
.same immediate supervisor nor manager. Her testimony was proffered by the
Union as evidence of a policy that such substitutions were made by management.
But later evidence from William Corrick, Manager, Operational Support, and a
manager with authority over the Grievor, indicated that Mrs. Fletcher's unit
was not under his authority and that he had no knowledge of the substitution of
leave credits that was made for her. In view of these circumstances we are
unable to give any weight to Mrs. Fletcher's testimony, and we will not refer
to it further.
We will now review the testimony of the Grievor, Cynthia Carere. At the
time of the grievance she worked as a Word Processing Operator in the Word
Processing Unit,~ Corporations Tax Branch of the Ministry at Oshawa, in which
position she was classified as an OAG 6. In her unit there were approximately
twenty Word Processing Operators working with-her, and 'classified at the same
,level, and about ten or fifteen typists.
Mrs. Carere had requested vacation leave for a period earlier in the
year, but changed it to the April 12th to 20th period in order to get a cheaper
flight. She requested the latter period in mid-March, and her request was
approved by her Senior Supervisor, Sheila Hookong.
The purpose of the leave was to give her some relief from two major
problems, which caused her both emotional and physical problems.
She had separated from her husband in January, 1988, after six years of
marriage, and the two 6hildren of the marriage, aged 3 1/2 and 6 years, were
5
left with her. It was apparent from her testimony that the separation had
caused her severe emotional stress, which affected her production of work.
Mrs. Hookong became aware of this situation in. the following way.
She had been discussing her problems with her husband by telephone, and
was overheard by Marg Laughlin, her immediate supervisor, who is responsible to
Mrs. Hookong. Ms. Laughlin then went to Mrs. Hookong's office, and shortly
after the Grievor was called in to M~s. Hookong's office for a discussion
between the two of them. During that discussion, Mrs. Hookong talked with her
about the problen~ arising from her separation, and her low output at work. ~
a consequence, Mrs. Hookong was aware that she was planning to leave Toronto on
her planned vacation.
Then on March 28th, the Grievor was involved in a motor vehicle accident,
and injured her back, neck and Eight thigh. She was hospitalized for part of
that day. She saw her family physician, Dr. G.S. B~rwell, the next day, whom
she had been seeing on a regular basis for treatment of the emotional stress
~elated to her separation. He prescribed medication for the pain and muscle-
swelling resulting from the accident,' and physiotherapy.
she kept in contact with Dr. Burwell, who also prescribed Ativan as a
muscle-relaxant for her emotional stress, just prior to her departure on the
April trip.
she was able to forget about her emotional problems during the trip, but
they were there when she returned, and she was still experiencing a lot of
physical pain. She had been due back at work on Thursday, April 21st, but was
too sick to come in and took sick leave for the Tht~rsday and Friday. On
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Monday, April 25th, she returned to work, and worked through to the end of
wednesday. However, during that period she suffered from physical pain when
she was sitting down, and had to take part of the Thursday and the Friday of
that week off, together with the following Monday and Tuesday. There was no
difficulty.in getting sick leave pay for the days she was off work following
her vacation.
Dr. Burwell wrote a medical certificate for her dated April 27th, which
said "off work Mar. 2t-Apr. 24 inclusive for medical reasons (holiday time
coincided with sick time)." He later expanded on the contents of this
certificate by letters dated August 29th and September 12th, 1988, which read
as follows:
" WHITBY CLINIC
200 Brock St. North
Whitby, Ontario
1-416-668-3378
August 29, 1988
Ontario Public Service
Employees Union
1901 Yonge Street
TORONTO, Ontario M4S 2Z5
Attn: Howard Law-Grievance Officer
Dear Mr. Law:
Re: Cynthia Carere
You~ File ~88B135
This letter is in response to your request for
medical information concerning Cynthia Carere.
Mrs. Carere~was seen in my office March 29, 1988
regarding a motor vehicle accident sustained March
28, 1988. I felt that her injuries were severe
enough that she should be off work. It is
difficult to assess how long a patient should be
off work, so I asked her to return to the office
April. 8, 1988 for reassessment. At that time her
injuries had not improved sufficiently for her to
return to work, and further time off was
7
recommended. She was next seen April 27, 1988
complaining of persistent pain. I understand that
in the interval between these two April visits that
Mrs. Carere went on a trip to England.~ In the
strictly physical sense, this trip is not
consistent with her absence from work, as I would
assume' that if she were fit enough to go on a trip,
she would be fit enough to work. However, as you
point out in your letter, there has been additional
emotional stress unrelated to her physical injury
that complicates this situation. I had felt that a
holiday would be appropriate for the emotional
problems, and on that basis I supported her time
off work for a holiday.
I hope this of help to you.
$incereiy
G.S. BURWELL, M.D., C.C.F.P.
WHITBY CLINIC
200 Brock St.~ North
Whitby, Ontario
1-416-668-3378
September 12, 1988
ontario Public Service
Employees Union
1901 Yonge Street
TORONTO, ontario M4S 2Z5
Attn: Howard Law - Grievance Officer
Dear Mr. Law:
Re: Cynthia Carere
Your File #88B135
Thi~ letter is an attempt to clarify my previous
letter of August 29, 1988 regarding Mrs. Carere in
her grievance with the Ministry of Revenue.
Mrs. Carere had two separate problems during the time in
question: first was her motor vehicle accident for which
I saw her March 28, April 8 and April 27, 1988; second
vas (and is) her emotional problems related to marital
discord. Mrs. Carere did require time off from work
related to her motor vehicle accident. At the time of
the accident, I felt that roughly two weeks off would be
appropriate but follow-up would be required to assess
that estimate. However, as you know, in the mean time
(16 days after her accident) she went 'on a foreign
vacation for twelve days. She had mentioned due to
troubles in her marriage. I felt ti-at this was
reasonable and .therefore supported her in this trip due
to emotional injuries sustained in her motor vehicle
accident. Therefore her absence from work from March 28
to April 24, 1988 was.due to injury and illness, and was
medically authorized by myself.
I trust this will clarify my position.
Sincerely
G.S. Burwell, M.D., C.C.F.P."
Counsel for the Ministry challenged this material from Dr. Burwell as
being hearsay, and not on its face a diagnosis of illness. However, John D.
Laughlin, the Supervisor of the financial administrative area of the
Corporation Tax Branch in which the Grlevor worked, gave evidence on this
matter, among other things, and we shall refer to that evidence extracted from
the remainder of his testimony at the moment, as it resolves the question of
the probative weight to be given to the documentation from Dr. Burwell.
Mr. Corrick, whom we have noted above was the manager with authority over
the Grievor, was on vacation during the resolution of the Grievor's leave
status during the April 12th to 20th period, by management< He would normally
have handled that matter, but its resolution fell to Mr. Laughlin, who was
acting manager in Mr. Corrick's absence.
On .cross-examination, Mr. Laughlin was asked about his understanding of
whether the Grievor was sick during her vacation period. He responded "I 'm not
disputing the Doctor's note, that she was sick"; and he had said earlier durin9
examination-in-chief that he ~would not argue about the Doctor's note, as it was
not the issue.
9
We view this testimony 9s conclusive proof that the Employer accepted the
material from Dr. Burwell as medical certification that the Grievor was sick
during the April 12th to 20th period.
Throughout and following the various events outlined above, the Grievor
had various discussions with her supervisor and manager relating to her
problems, and leave status over the disputed period, and we shall now review
her testimony on those matters within the framework we have described.
Dt~lng the tl~!e from the accident on March 28th, to her departure on.
April 12th, the Grievor was on sick leave at home in Whitby, visiting her
Doctor from time to time for treatment. Firs. Hookong telephoned her at home
during that period. During a call on April 7th, Mrs. Hookong asker her how she
was feeling, and she responded that she was still in pain and trying to get
around. Mrs. Hookong then said that Mr. Corrick wanted to know what she was
doing about her vacation time, and the Grievor said that she thought she had to
use it. Then, according to the Orievor's testimony, Mrs. Hookong said "NO.
You don't have to use it," and told her that if she could get a Doctor's note
for that period saying she was ill, she should bring it to work. Then Mrs.
Hookong asked Mrs[ Carere ifshe was going away on her trip, to which she
responded that she wasn't sure, as she had to see the Doctor again. She saw
Dr. Burwell the next day, and as a result of that visit she decided she was
well enough to go on the trip.
we would note that Mrs. Hookong was not called by the Ministry to
'challenge or contradict any of the Grievor's evidence respecting her April 7th
telephone call with Mrs. Hookong, and we accept that testimony as given.
we will now review the evidence respecting the signing of documents which
are called "Flexible Hours Attendance Register-Absences." We have extracted
the evidence relating to that matter for the purpose of 'clarity. The sheets in
question were variously referred to as the flexible hours form, the flexible
attendance registerS' and the time sheet. For simplicity, we shall call these
forms, "time sheets". Each sheet is for the period of five working days', or
, one week at work, and the ~sheets record dates of abSences under such headings
as "Sick" or "Vacation". The sheet is signed and dated by the employee as a
certification of the type of absence on a particular day or days, and it is
initialled by the employees immediate supervisor. It is then sent to the
supervisor of the area in which the employee' works, who normally accepts the
certification, and arranges to have it entered in a monthly attendance record.
Mr. Laughlin, which we have noted was acting manager of the Operational
Support area in which the Grievor worked, during her absence, gave testimony
about his authority and that of the Grievor's immediate supervisor, with
respect to such time sheets. His uncontradicted evidence made the essential
point .that he would have final authority respecting the characterization of a
leave on such a sheet. He is accordingly not obliged to process such a sheet,
even 'though it is signed by the employee and initialled by her immediate
Supervisor.
If there is a dispute over such characterization between the employee and
immediate supervisor, the supervisor's characterization would be accepted. If
such a 'dispute arose between the in%ediate supervisor and Mz. Laughlin, it
would be returned to the employee and amended to reflect Mr. Laughlin's
characterization. In summary, after consultation with the parties involved,
and perhaps a labour relations advisor on staff, Mr. Laughlin would make the
11
final decision. However, he agreed on cross-examination that approving the
status of the leave is essentially done by the i~ediate supervisor, and that
it is extremely unusual for him to interfere.
Mrs. Carere said that a time sheet already filled out for sick leave for
the period April 12th to 20th, and initialled by her supervisor Mrs. Hookong,
was brought to her after that period by Cathy Park, an administrative clerk.
She signed it and gave it back.
Mr. Laughlin said that he never saw a time sheet filled out in that
fashion at any time, nor was any such sheet produced at the hearing. In
addition, we would note briefly at this point that the time sheets received in
evidence at the hearing, signed by Mrs. Carere, and initialled by Mrs. Hookong,
certify that the disputed period was taken as vacation.
We will review the circumstances surrounding those sheets below, but we
must first make a determination respecting the existence of the earlier sheets,
which the employer submits never existed.
The positive evidence of their existence is found in the Grievor's
testimony. That testimony is given credibility by two thinps: the Grievor's
recall in detail of how they were brought over to her, and who brought them
over; and her additional testimony that Mrs. Hookong told her that she did not
have to use vacation credits for that period.
The testimony is weakened by the fact that the sheets were not produced
at the hearing, and could have been subpoenaed by the union for that purpose.
12
However, we would note that Mrs. Carere's recall of the production of the
sheets in some detail, and her execution of them, could have been met by
positive evidence from the employer by simply calling Mrs. Hookon9 to deny that
they ever existed, and such ~s not done. ~'
On balance we must conclude that the Grievor's recall of this matter is
accurate. Her evidence is positive, although not as strong as it might be in
view of the fact that the sheets were not produced, and it is not contradicted
by positive evidence from Mrs. Hookong. The fact that Mr. Laughlin never saw
the sheets is not strong enough to meet this evidence, as the disposition of
the sheets after they were signed and returned by Mrs. Carere must remain
mystery on which we have little or no evidence to speculate. We find,
therefore, that Mrs. Hookong~ initialled, and the 6'rievor signed the sheets
certifying her leave during the disputed Period as being sick leave. We are
unable to conclude what happened thereafter to those sheets, except that we
know they did not come to Mr. Laughlin's attention. The existence of those
sheets in itself does not allow the Grievor to succeed in her claim, as final
authority for leave certification, did not reside with Mrs. Hookong (see, for
example, Foamier, $6/76, where the board held, inter alia, that a non-
disciplinary decision by management may be countered by a higher echelon).
They nevertheless become a factor in considering the reasonableness of any
final management decision, and we shall refer to them further below.
The time sheets that were received in evidence certify that for April
llth the Grievor was on sick leave; for April 12th, 13th, 14th, 15th 18th, 19th
and 20th, she ~as on vacation leave; and for April 21st, 22nd, 28th and 29th,
she was on sick leave. All days noted are full days leave, except for April
28th, which is a half-day. All sheets are signed by the 6rievor and dated "May
2/88" by her, and each is initialled by Mrs. Hookong.
Prior to that date in May but after the Grievor had signed the earlier
set of time sheets, she was told by Mrs. Hookong that she would not be allowed
to use her sick leave credits for the disputed period, but would have to use
her vacation credits. Mr. Laughlin had be~n referred to her request to use
sick leave~ credits for that time, and to the note from her doctor. He then
spoke to Dave Daniels, a labour relations officer on staff, about the matter.
As a result of that conversation, Mr. Laughlin decided that he would not argue
about the Doctor's note, as he felt that was not the issue, but he would also
not reschedule the Grievor's holidays as sick leave.
He arranged for a meeting on May 2nd to convey this information to Mrs.
Carere. Alex Clarke, the Union President, was initially at the meeting but
left after finding out that it was not an official meeting on a disciplinary
matter.' At the meeting, Mr. Laughlin advised Mrs. Carere that the Doctor's
note was not the issue and he would not argue over it, but that he could not
reschedule her vacation.
It is Mrs. Carere's evidence that at that meeting she was told to sign
the appropriate time sheets accordingly, or she would be given leave without
pay for her vacation period. Mr. Laughlin, in contrast, said at first that
there were no discussions at the meeting about her signing the time sheet, or
about the consequences if she didn't. On cross-examination, he later admitted
that the question of signing the time sheets "came up. There ~ a requirement
to' submit time sheets." However, he denied that the issue was ever raised
about what the consequences would be if she didn't sign.
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We wduld conclude that in fact that the ~rievor was told she had to sign
the time. sheets showing her leave as vacation, and we would also conclude that
it is likely that it was pointed out to h~r in some way that she had to sign
the time sheets to get paid. We view the exact content of that discussion
about consequences as having little weight on the issues before us, as she
would in any event not get paid without putting in some time, and as Mr.
Laughlin had made his dec[sion already how to characte~ise the leave. If the
G~ievor disagreed with his characterisation (as she did), her remedy was to
grieve later (which she did).
She said that she signed those sheets to get some pay for that perlod, as
she would grieve the matter, later, On the next day she signed the grievance
which is before us now..Consequently we do not view her signature on those
time sheets as acquiescence or final agreement in any way with l~. Laughlin's
characterization of her leave as vacation leave.
We would note a few other matters to complete this lengthy review of the
facts.
First, there was no written policy within Mr. Corrick"s area that when an
employee became sick when a wcatlon was scheduled, he or she could not
substitute sick credits for vacation credits. Mr. Corrick said that there was
an unwritten policy that such rescheduling would not be done, but that was only
checked out by Mr. Laughlin with Mr. Daniels after the Grievor's vacation.
Such a policy did later appea~ in w~tlng, in a memorandum fromM r. Corr~ck to
Senior Managers, Managers and Supervisors, dated August 11, 1988. That
memorandum reads as follows:
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" August 1!, 1988
MEMO TO: Senior Managers,
Managers and supervisors
SUBJECT: Requests for~Rescheduling '~
of Vacation
When an employee has requested vacation and this
request has been approved, this vacation may not be
automatically rescheduled at the request of the
employee.
Management has, under the Cro~n Employees
Bargaining Act, the right to schedule vacation.
This right, however, must be exercised consistently
with valid operational requirements/reasons.
Therefore, where no operational, workload or
monetary reason exists for the Branch to deny the
requested rescheduling, management may approve the
request.
In contrast, there may be sitt~ations where a'
business reason exists for denying the request.
For example, an employee might request vacation
rescheduling to prevent the vacation from
coinciding with a period of illness. Approval of
such a request would result in a greater number of
paid leave days than would otherwise be incurred.
Accordingly, given the greater cost of acceding to
such a request, t?,ese circumstances would provide
management with the right to deny the reschedutingo
Consistency is important in these matters and, thus
attempts should be made to meet all similar
situations in the same fashion.
One of the reasons for drawing this to your
attention is to eliminate the potential for
grievances due to inconsistencies in application.
Point in fact, the Branch presently has one at the
G'rievance Settlement' Board.
W.F. Corrick
Manager
o~atlonal Sup'pozt"
we conclude that prioz to the denial of the ~levor of her requested
reschedullng, M~. corrlck and Mr. Laughlin may have had an understanding, or a
view, that such rescheduling would not be done, but there is no evidence that
that had t~en co~m~t~icated to employees ~,rior to this grievance,
Secondly, the Grlevor gave evidence that when one of her so-workers
became sick, or was on vacatior~, or or~ maternity leave, they were never
replaced by temporary employees, nor was overtime scheduled. This evidence was
uncontradicted, and there is no evidence that Mr. Laughlin investigated the
staffing consequences if the Grievor's vacation time had been rescheduled. He
made an inquiry, but it was essentially that of whether a policy existed, and
on hearing a confirmation of that from Mr. Daniels, he appears from the
evidence to have made the decision, largely on that basis above. }ir. Corrick
noted in his memorandum of August llth On this matter, thatthere may be
situations where a rescheduling request has to be denied for business reasons,
including the incurring of a greater hum/er of paid leave days than would
otherwise happen.
In such circumstances, a request for rescheduling would be denied for
cost reasons, but there is not indication that this type of situation had been
investigated by Mr. Laughlin in response to Mrs. Carere's request.
~;e will now review these facts in the light of the submissions. As is
noted at the outset, Counsel for the Union has proposed that the Grievor was
entitled to use her sick leave credits under the circumstances of this case;
and alternatively, if the matte~ is based on management discretion, that
discretion was exercised in an unreasonable and discretionary matter. CouD.~el
relied particulary on what he called the de factQ approval of the rescheduling
by Mrs. Hookong, before the Grievor took her leave.
Counsel for the Employer relied principally on the proposition that the
rescheduling sought was a discretionary power, and that the denial was a
reasonable exercise of discretion. She also vigorously attacked the probative
17
value of a number of elements of the evidence. We would note that we have
resolved those issues of evidence in our review of the facts, and we shall now
consider the primry submissions.
Counsel provided a number of cases to support their proposition,
including Tam~e~rt/Sl~ght, 2615/86 (under Judicial review), and E~ 89/83 from
the Union; and Heath, 425/82, EiM_~, 310~82, Fou~nier, 86/76, and ~ergsma,
126/86, from the ]~ployer. The Union. provided in addition the case of Re
Family and Children's Services of Renfrew Country anC~Ci~y of Pembroke (1985),
20 L.A.C. (3d) 359 (Devlin); and the E~ployer R~ International Nickel Co. of
gan~da Ltd. (1975), 9 L.A.C. (2d) 92 (Gorsky). However, it is our view that
the Jurisprudential framework is relatively straight-forward, and that this is
a case which turns largely on the facts.
Thus, in considering the rescheduling of vacations, we are satisfied that
'the phrase in Article 47.7 ~ich reads "with the approval of the Deputy
Minister", makes the rescheduling a discretionary matter in the purview of the
Employer (see, for example, ~y 89/83, which rejects the earlier view that it
is an exQlusive management right as found in ~ 310/82). And although we
are satisfied that the sick pay plan is there "to provide earnings relief in
periods of incapacity caused by illness or injury" (~amhert/Slaght 2615/86),
and as such it may (subject to forthcoming review) be a benefit that can be
substituted for compensating leave under Article 19 - Holiday Management
(~mb~rt/Slaght, p.16), it is our view that this result is clearly
distinguishable as a result of the particular wording of Article 47.7 noted
above.
18
In similar vein, none of the remaining cases from panels of this board
are of direct .help, in that either they deal with a differently-worded article
of the collective agreement (see Four[~ler 86/76, at p.3 dealing with article
10-Bereavement Leave), or a different principle such a pyramiding of payment
for statutory holidays and payment for short term sickness (Bergs~ 126/86).
The Heath case (425/82) deals with the question of the Employer's
discretion to reschedule a vacation where an employee becomes ill and the
illness extends into a vacation period. The facts in that case are different
from the situation before us, as they involve dissatisfaction with a medical
note, and an unacceptable attendance record, among other things. However, the
decision not to reschedule is treated as a discretionary matter in the purview
of the Employer (a principle we have accepted), and it'was found in that case
that the appropriate factors were considered by the Employer is exercising its
discretion not to reschedule.
Counsel for the Union also argued forcef~ully that we should view Article
52-Short Term Sickness Plan as an exhaustive and complete code for entitlement
to the earned benefit of leave-of-absence with pay. If such is the case, he
submitted that the employee has to be disentitled in some clear way under the
collective agreement in order to be barred from such benefits.
We agree to an extent, but would note that there is a precedent condition
to any such entitlement found in Article 52.1 at the outset of Article 52, and
that condition is in plain language. Article 52.1 starts out by saying:
"An employee who is-unable to attend Go his
~ (underlining added) due to sickness or
injury is entitled to leave of absence with pay as
follows:
19
(i) with regular salary for the first'six (6)
working days of absence,
(ii) with seventy-five percent (75%) of
regular salary for an additional one
hundred and twenty-four (124) working
days of absence,
in each calendar year."
There must accordingly be a situation where the employee cannot work, due
to the sickness, before the various entitlements are mandatory in any way, and
Counsel for the Employer has submitted that it would be a wrong reading of the
Article to say that "unable to enjoy his vacation" is a reasonable
interpretation of '%~able to attend to his duties", We agree, and therefore
the Union cannot succeed in its argument on this matter.
Thus we are left with the guestion of whether discretion was properly
exercised, where the "approval" under Article 47..7 for rescheduling the
vacation was not granted. As we have noted elsewhere (Klonowski, 2143/87),
this matter has been reviewed earlier by this board.
In the Ktlyrt~Jes case, Vice-Chairman Verity
thoroughly canvassed the exercise of a
discretionarypower such as is found in issue here,
and we find his analysis and statement of
principles apposite. Without covering once more
the jurisprudence reviewed at length in that case,
we would first adopt the principle state by Vice-
Chairman Swinton in Re Young and the C~ownlp[ql~ht
Qf ODtarto {Mlntstrj of Communlt~y a~ So~la~
Serv~LP~), 220/79 and reported in (1979), 24 L.A.C.
(2d) 145. In the Young case, Vice-Chairman Swinton
noted at p.148 that where the employer has a
discretionary power, "The board's concern is the
reasonableness of the decision, not its
'correctness' in the board's view." Vice-chairman
Verity refers to that principle on p.15 of the
KtLvntJes award, and proceeds further on p.16 to
state a list of considerations that must be
applied, in view of the principle to "ensure that
decisions are made within the confines of certain
minimum standards of administrative Justice." He
then lists those considerations as follows%
"1.The decision must be.. nsde in good faith and
vlthout 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 irrelevant considerations must be
rejected."
What did Mr. Laughlin do in the case before us? He had been referred to
the request to reschedule. He had been given the Doctor's note. He decided he
would not challenge iq, but it was not the issue, in his view. He spoke with
Mr. Daniels, and found out that there was a policy not to reschedule vacations
where an employee is sick during the vacation period. There is no evidence of
further details of that policy as it existed at.that time. He then called a
meeting at which the Grievor ~as present, and in his o~n words:
"... I said I would not reschedule her vacation. I
would not argue about the Doctor's note. After
discussing with Dave Daniels, it was not the issue.
I asked her if she understood totally what we were
discussing. I asked her if she understood I was
not rescheduling holidays - Doctor's note not the
issue - up to Sheila and I to reschedule, and I
wasn't going to do that."
The decision was based almost totally, as far as one can discern from the
evidence, on a direct and rigid application of the policy Mr. Laughlin had
heard .from Mr. Daniels. However, the K~fntJe~ case suggests that the
reasonable exercise of a discretionary power must go beyond such an approach if
it is to meet minimum standards of administrative justice. Among other things,
there must be a genuine exercise of discretionary power, rather than rigid
policy adherence; there must be consideration given to the merits of the
individual application; and all relevant facts must be considered. If such is
done, we would emphasize that the result need not be a "correct" decision, in
the board's view, or' the decision it would have made. It needs merely to be a
reasonable exercise of the power.
In' this case, one may look in'vain for a weighing, or at least a
knowledge and some consideration, of the assurances Mrs. Hookong made to the
Grievor prior to her vacation. Nor is there any weight given, nor any
knowledge of, the time sheets initialled for sick leave by Mrs. Hookong after
the vacation. We have noted earlier that such matters would not determine the
issue in the Grievor's favour as being binding in themselves on higher echelons
of management. But short of an estoppel, senior manage~ent cannot operate, in a
vacuum in respect to a position taken consistently twice by an employee's
Senior Supervisor, in respect of leave status. Such is particulary important
where, as here, approving leave status is "essentially" done by that.
supervisor, and such approval is "normally" accepted by the supervisor's
senior. The assurances and approval are clearly relevant facts which should
have been known and given consideration in the exercise of discretion, and it
is management, and not the Grievor, which has the duty to see that these
matters are appropriately communicated.
In addition, there is no evidence of any other review of the merits of
other aspects of the Grievor's application, apart from the fact of the
existence o£ the Doctor's certificate, Neither is there.any co]~Ideratlon of
"valid operational requirements/reasons" or whether "a greater number of paid
leave days" would result, as suggested in Mr. Corrick's ~ hoc policy
memorandum. We do not suggest there should have been any direct consideration
of Mr. Corrick's policy, as it was written m~ch later, but we view it as a good
example of the normal and expected matters that might be considered in such a
'review.
22
We conclude that, iN view of the above, there was no "genuine exercise of
discretionary power," but rather "rigid policy adherence," in terms of the
second consideration listed by Vice-Chairman Verity in the Ku~vntJes.case. We
also conclude on the evidence, in terms of the third consideration listed in
that case, that practically no weight ~as given "to the merits of the
individual application under review."
We find as a result that the decision to deny rescheduling failed to meet
minimum standards of administrative Justice, to the extent that it was an
arbitrary and rigid adherence to a policy, and that it is therefore
unreasonable.
77:e grievance accordingly succeeds. Urger the circumstances of this
case, with the series of failures to take appropriate matters into account in
the decision-making process, with the absence at the time of any declared
policy, and with the Grlevor no longer in the employ of the Ministry, we
consider it more appropriate to bring this matter to a final resolution, rather
than to refer the matter back to the Employer. We accordingly order that the
Grievor's vacation credits for the period April 12th to 20th, 1988 be restored
to her, that She be given leave-of-absence with pay for that period under the
appropriate provisions of Article 52-Short Term Sickness Plan, and that she be
compensated forthwith for all monies owing to her as a result of that
substitution.
Dated at Ottawa,
this 25th day of 3a,uary, 1989. ~ ~~.,
D. Fraser, V%ce-Chairperson
M. Wood, Member