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HomeMy WebLinkAbout1988-1116.Henry.91-03-19 ONTAriO EM~.OYE$ DE LA COU~ONNE GRIEVANCE C,OMMIS$1ON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 1116/88 IN TW~ MATTER OF 3%NARBITRATION Un, er TH~ CROWN EMPLOYEES COLLECTIV~ BARC~INING ACT Before THE GRIEVANCE-SETTLEMENT BOARD BETWEEN OPSEU (Henry) , ~rievor - au~ - The Crown in Right of Ontario (Ministry of Revenue) Employer BEFORE: J.E. Emrich Vice-Chairperson J. McManus Member' I. Cowan Member FOR THE M.A. Kuntz ~IEVOR Grievance Officer Ontario Public Service Employees Union FOR THE D. Daniels EMPLOYER Couns e 1 Mathews, Dinsdale & Clark Barristers & Solicitors ~E~%/~IN~: March 14, 1989 A~ARD ~. In his grievance, Mr. Henry oontests the Rmployer's denial of his request for 3-1/2 hours of paid compassionate leave to attend the funeral of a friend in Brampton on September 9th, 1988. The Employer took the position that these circumstances were not appropriate for paid cc~passionate leave under.Article 55 of the collective agreement, but fell within the sorts of circumstances contemplated by Article 49 of the collective agreement pertaining to bereavement leave. Since the bereavement leave provisions are triggered ir~ the event of the death~ of specified ~amily members, the- Employer took the position that the collective agreement did not provide for paid leave to attend the funeral of a friend and denied the grievor's request for paid leave. However, the Employer did grant the time off requested by the grievor to attend the funerak,' but without pay.. On behalf of the grievor, the Union pointed out that the ~ployer had demonstrated through its conduct in the past, that ccmpassionate leave would be granted to attend the funeral of a friend. The Union therefore argued that the proper interpretation to be given to the cC~Passionate leave provisio~ls was liberal in scope, so as to be consistent with the Employer's past practice. ~ae L~io~ specifically did not argue t.hat the Employer was estopped by its condu~t frcm advancing a more narrow interpretation of the meaning of Article 55. }{owever, the Union argued that the f~ployer had acted arbitrarily-and unreasonably by denying the grievor's request for le ave. No objection was raised at the hearing to the jurisdicti°n or constitution of the panel. ~ne relevant collective agreement provisions are the foil(wing: ARTICLE 29 ~ LEAVE WITHOUT PAY 29.1 Leave-of-absence without pay and without the accumulatioa of credits may be granted to an employee by his Deputy Minister. ARTICLE 49 - BEREAVi~4ENT LEAVE · 49.1 An employee who would otherwise have been at work shall be allowed up to three (3) days leave-of-absence with pay in the · event of the death of his spouse, mother, father, mother-in- law, father-in-law, son, daughter, brother, sister, son-in- law, daughter-in-law, sister-in-law, brother-in-law, grandparent, grandchild, ward or guardian. ARTICLE 55 - SPECIAL AND COMPASSIONATE LEAVE 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. special or cc~passionate grounds. 55.2 The granting of leave under this Article shall not be dependent upon or charged against accumulated credits. In addition to calling sc~e viva voce evidence, the parties' representatives proceeded on the basis of an agreed statement of facts, as follows: ~ 1) That prior to Mr. Moore's appointment as Cc~m~issioner 'in the Barrie Assessment of[ice on o[ about June 1988, the previous ~anage~ent teams took a liberal approach to granting requests for special or compassionate leave under Article 55 of the Collective A~reement. l~arding previous requests for special leave by'the grievor - the following are acknowledged as s~me requests that have been granted: 1. 1975 - June 6-1~ 1 day plus 2 half days to attend wife's grandmother's funeral {out of town) 2. Dec 14/79 1 day to attend friend's funeral 3. Ma~ 54/80 1/2 day to attend cou~t hear ir~ (finalizing adoption of daughter) 4. July 29/81 i day to take mother hcme frcm hospital 5. Oct 13/82 4 hours to attend friend's funeral 6. June 6/86 1 day to attend friend's funeral 7. Feb 26/88 1 day to assist sick friend in hospital 3) Regarding Donald Hurst - another Ministry of R~venue employee - the following days' leave were granted: 1. Jan' 24/~6 friend' s funeral 2. Mar 13/86 friend's funeral 3. Nov 16/87 uncle's funeral 4) Regarding Pat Bond - an.other Ministry of Revenue employee - the following leave was granted: ' 1o Apr 12/88 1 day leave to attend a funeral in Cobourg Furthermore, the parties were agreed that there was no issue arising in this case as to breach of Article 55.2. The grievor is classified as a Property Assessor 3 at the Regional Assessment Office 16 in Barrie. As set out in the.agreed statement, his testimony established that within the time period frcm~ June 1975 to June 1986, his requests for special and compassionate leave had been granted to attend a friend's funeral. Requests by other employees of a similar nature during this time frame had been approved as well. The testimony of witnesses on behalf of the Employer was much to the same effect. Mr. William Anderson, Evaluation Manager at the Region 16 Office since 1970, testified that the Commissioner was the official responsible for 4 authorizing requests for special and compassionate leave. He explained that · until May 1987 the incumbent of the C~mmissioner's position took a liberal approach to granting requests of the sort at issue. He added that, initially, such requests would be granted if unexpected circumstances arose which Mr. A~derson characterized' as an emergency. However, in the late 1970's until May, 1987, Mr. Anderson observed a shift in policy, such 'that virtually any reqUest for special or co~passionate leaVe was granted. A further chan§e in policy.occurred once the present Cc~missioner, Mr. Moore, was appointed in March 1988. Mr. Anderson pointed out that Mr. M~ore had c~ented to him that the practice of granting such reqUests had beccme too lax and that each reqUest should be considered on its own merits. Mr. Don-Murray testified on behalf of the f~ployer as well. Mr. Murray' held the position of Services Manager at the Region 16 Barrie officE' from% ' August 1982 to .January 11, 1989. From May 1987 until August 1988, Mr. Murray was Acting Cc~missioner. His testimony was to the same effect. He observed that prior to Mr. Moore assuming office as Cc~missioner, virtually all requests for special or compassionate leave had been approved. Mr. Murray noted that under this liberal practice, there had been ~occasions when .they were short-staffed. H~wever, at no time, either prior to or after Mr. Moore's appointment as'Cc~missioner, has there been an express policy published about the granting or refusal of Article 55 requests, In late July or August, 1988, Mr. Murray stated that the new Cc~m%issioner, Mr. Moore, had advised him that there should be a change in approach to approving requests for special or cc~oassionate leave and 'that requests for such 'leave would be scrutinized.carefully. 5 Mr. Murray stated that uPon receiving the grievor's request for special and compassionate leave on September 8, he felt that there was insufficient information from which he could decide whether to g~ant or refuse the request. Mr. Murray explained that such factors as the emotional impact upon the applicant, the operational impact of the request on the office, and the degree of urgency would be considered. Having learned that the grievor's request was to attend a friend's funeral, Mr. Murray asked the 4i grievor to meet with him to discuss his request. Mr. Murray had been delegated the task of deciding on 'such matters while Mr. Moore was away on vacation. At a brief interview with the grievor, Mr. Moore learned that the funeral was for a friend of long-standing acquaintance with the grievor (over 30 years according to the g~ievor). Mr. Murray described the grievor as not visibly upset, although it was clear that the grievor wanted to pay his respects. Mr. Murray was able to obtain an estimate from the grievor of the amount of time off requested. At some point in the interview, Mr. Murray communicated to the grievor his decision to refuse paid ccmpassionate leave, but he did grant the grievor the time off. M~. Murray explained that on the basis of the information he had acquired, he did not feel that there was a sufficient emotional impact or degree of urgency respecting the grievor's request so as to qualify foe special or compassionate leave. He added that there was no problem in this instance in respect to operational efficiencies, nor was there any problem in [espect to any recurring requests. There was some suggestion by the g£ievor that Mr. Murray had felt bound by the 'precedent of two other similar requests which had been denied by Mr. Moore as Commissioner. Mr. Murray recollected that those other instances occurred later in time, but he acknowledged that there had been a 6 shift in policy under Mr. Moore and that there-had been rumblings of discontent about this change in the office. The Union argues that the ~ployer acted unfairly, unreasonably, and arbitrarily when it denied the grievor paid leave to attend the funeral of his friend of 30 years. The Union points to the pu[pose of compassionate leave by relying on the Oxford ~glish Dictionary definition of "ccmpassion" - "pity inclining one to be helpful or merciful" and of compassionate leave "granted on grounds of bereavement". Thus, the Union characterizes Article 55 as complementary to-Article 49 in purpose. The Union acknowledged that Article 55 vests in management discretion to grant or refuse compassionate leave, but contends that this discretion must be exercised fairly and reasonably.~ In this regard, the Union relies upon' Re' United Parcel Service Canada Ltd. (198i), 29 L.A.C. (2d) 202 (Burkett) wherein it is said 'at p.213: "... the employer's decision-making should be assessed against the requirement to act for business reasons and the requirement not to single out any employee or 'group of employees for special treatment which cannot be .justified in terms of real benefit to the employer. When the parties agree that such matters as classification, qualification, demotion, transfers and the scheduling of vacations are to be in the discretion of management they do so in the knowledge that management's decision-making in these areas will be made in manag~ment's self-interest, may adversely affect individual employees, and/or may not impact on all employees equally. However, it is not contemplated as part of the bargain that the employer will exercise his authority in these areas for reasons unrelated to the betterment of his business .or to single out employees for the type of special treatment described. If the employer acts in this manner, the results of his actions, as they affect the bargaining unit generally or individuals within the bargaining unit, may be found to be beyond the scope of his authority under the collective 'agreement. The Union contended that in the absence of any legitimate business reasons being shown for a shift i~ policy, and in the absence' of communicating any such change to the Union or the employees in advance, management ought not to have singled out Mr. H~nry for denial of his request for compassionate leave, when for the previous 18 years other requests had been granted in similar circumstances. On behalf of the ~ployer, it was argued that in their collective agreement, the parties have distinguished bereavement leave from compassionate leave. Mr. Daniels cited to this Board a host of cases decided by the Grievance Settlement Board which provide examples of how Article 55 is to be interpreted and applied: Elesie and Ministry of Health 24/79; Stewart and Ministry of Transportatio~ and Communicatio~s 211/78; Freem~n and Ministry; of Health '87/80; Fagan and Ministry of Consumer and C~.,.ercial Relations 657/80; Gillies and Ministry of Correctional Services 274/81; Xavier and Ministry of Government Services 583/82; Jackso~ and Ministry of Correctional Services 487/83; Kuyntjes and Ministry of Transportation and Co~m~unications 513/84; Jackso~ and Ministry of Correctional Services 146/84; Lacourse and Ministry of Correctional Services 1273/84; O'Brien and Ministr~f of Correctional Services 1157/86; Stacey and Ministry of Correctional Services 193/85; Latulippe and Ministry of Correctional Services 100~/~6; Cho~ and Ministry of Labour 5004/86; Gillies and MinistrF of Correctional Services 672/86; Leger & Legacy and Mini~tr~f of Correctional Services 506, 507/87; Sahota and Ministry of Correctional Services 2454/87; Co~en and Ministry of Cc,-.-.~;;unity and Social Services 2410/87;' Blake et al. and Toronto Area Transit Operating Authority 1276/87, 1342/87, 1858/87, 1887/87, 1888/87, 1889/87, 1890/87, 1891/87, 1892/87, 8 2292/87. On behalf Of the R~ployer, Mr. Daniels argued that the case law supported the proposition that compassionate leave is not to be utilized as an extension of bereavemeat leave.. Furthermore, he oon~ended that the evidence demonstrated that the ~mployer investigated and gave due ~onsideraticn to the merits of the grievor's request and acted fairly, reasonably and without discrimination in denying the grievor.'s request. It was emphasized that the f~ployer had accommodated the grievor's needs sympathetically by permitting the grievor time off without pay. A canvass of the Board's jurisprudence, in light of the facts of this case, sustains the Rmployer's position. The standard of'arbitral review applicable to the broad discretion co~ferred up0~ management by Article 55 has been considered in a number of cases. Tae applicable standard of review has been expressed in Kuyntjes and Ministry of Transportation and. C~unicaticns 513/84, in the following terms at p.16: In cases involving the exercise of managerial discretion, Boards of Arbitration generally hesitate to substitute their view for that of the decision-maker, which is.a recognition of the fact that Boards have less familiarity than does the ~mployer with the exigencies of the work place. However, Arbitrators must ensure that decisions are made within the confines of certain minimum standards of administrative justice. Those administrative law concepts relating to the proper exercise of discretion iD~lude the following oonaiderati~ns: 1) The decision m~st be made in good faith and without discr imination. It must be a genuine exercise of discretionary power, as opp(~d to rigid 'policy adherer~e. 3) Co~%sideration must be given to the merits of the individuals application under review. 4) All relevant facts must be ~onsidered and oonversely irrelevant consideration must be rejected. Much to the same effect is the standard review articulated in O'Brien and Ministry of Correctioaal Services 1157/86 at p.ll: In our view, Lake Cntario Steel and Hanson suggest minimal standards of procedural reasonableness. In exercising its discretion, employers must: a. make reasonable efforts to gather relevant facts as they apply to the particular case in question~ b. apply scme reasonable decision rule whic~ is not arbitrary or discr iminator y; c. make an honest effort to make a decision between possible alternatives; d. ~ct consistently with the decision that was made. Although both the Kuyntjes and O'Brien cases involved requests.for cc~passionate or special leave due 'to inclement weather preventing a%tendance at work, the O'Brien standard of review has been adopted expressly in Gillies and Ministry of Correctional Services 672/86 and impliedly in Latulippe and Ministry of Correctional Services 1000/86, both of which invglved requests for cc~oassionate leave to attend the funeral of a person not specified in the bereavement leave provisions. In the instant case, the Board finds that Mr. Murray investigated .the merits of the grieVOr' s claim appropriately. To assess what sort of facts are relevant to consideration of a claim for c~mpassi0nate, or special leave tO attend a funeral of someone not included in the bereavement leave provisions, it is helpful to bear in mind the purpose of this article. In Jackson and Ministry, of Correctional Services 487/83, the panel approved at p.12 a Comment made in the earlier Elesie case at p.6 that "compassionate leave is granted to a~ employee when 10 he or she is in a situation deserving of sympathetic treatment". However, the panel went on to distinguish compassionate leave frc~ bereavement leave and found no exceptional circumstances raised by the facts Of the case to warrant the grant of cc~passionate leave to attend the funeral of someone that the parties to the collective agreement recognized as not being close enough to justify the grant of paid bereavement leave. Tae Board noted that other employees similarly circumstanced to the grievor had been granted the day off, but refused paid leave.' In Jackson and Ministry of Correctional Services 146/84, ,the same grievor sought compassionate leave to attend the funeral of h~s wife's grandmother, a relation not within the scope of the bereavement leave provision, numbered Article 48 at that time. Ccmlpassionate leave was denied, but the grievor was granted the time off either without pay or by using a day from his bank of unused time off. in lieu of holidays worked. At p.4, the Board observes: Furthermore, the parties have put their minds to the issue .of bereavement leave and had agreed to the provisions of Article 48 which deal with this matter. What Mr. Jackson has attempted to do both in his earlier grievance and in this one is to use Article 54 to amend and extend the provisions of Article 48. We agree that ~ the Raployer is entitled to ~esist such efforts, and to grant bereavement leave under A~ticle 54 only in extraordinary circumstances. Counsel for the Unic~ emphasized the' importance to' the grievor of time off to attend the funeral and serve as pall bearer. We agree. The fact is that the f~ployer accommodated his need, albeit not under Article. (emphasis added) This approach has been followed consistently in Lacourse and Ministry of Correctional Services 1273/84; Latulippe and Minist'ry of Correctional ll Services 1000/86 and Gillies and Ministry of Correctional. Services 672/86, all of which involved requests fo~ compassionate leave to attend the funeral of a person not specified in the bereavement leave provis£on. In Sahota and Ministry of Correctional Services 2454/87, the grievor requested compassionate leave to attend the funeral of a friend and neighbour, for whom he had agreed to act as pallbearer. Tae Board found that management had failed to investigate the circumstances of the grievor's reque.st. "Serious and diligent enquiry" was required by the Ministry's guidelines~ in respect to the exercise of discretion in considering the compassionate leave · provision. Having so found, the Board noted that in similar circumstances another employee had been granted compassionate leave. Given that there was insufficient evidence adduced to Justify a different result for the grievor, the Board allowed the grievance and granted four' hours' Of compassionate leave as requested. In the instant case, it is clear that management officials at Region 16 were endea~ouring to effect a change to the way in which Article 55 had been administered in the past. In his testimony, Mr. Murray articulated the criteria which he took into account: the operational needs of the workplace, the importance of the request to the grievor and the hardship caused by denial, and the urgency of the obligation. It is clear on the evidenCe that Mr. Murray approached the issue from the viewpoint that c0mpassionate~leave would be granted to attend the funeral of a person not within the scope of the bereavement leave provision only in exceptional circumstances, as contemplated' in the Jackson case. The Board finds that Mr. Murray was not acting unreasonably or in a discriminatory fashion by' denying the gr'ievor's request, despite the past practice of granting such 12 requests, it is clear from ~the evidence that the past practice had resulted frc~ a failure to exercise discretion. ~nere were no grounds raised before this Board upon which to find. that the ~mployer was precluded frc~ exercising its discretion in this instance to deny the grievor compassionate leave. In fact, the ~aployer attempted to accommodate the grievor's request in a sympathetic manner by granting the time off and suggesting ways in which that might be accomplished without loss of pay. Tnis Board finds, as other Boards have found in comparable circumstances, that management was entitled to exercise its discretion in the manner it chose. While the Board finds that ~he criteria Mr. Murray took into account were relevant and reasonable, it was apparent that the process of identifying criteria relevant to such an issue was in its infancy. It might well enure to the benefit of the parties and the employees-if a' c~ncerted -- effort were made to articulate the approach to be taken to compassionate leave and to communicate those guidelines for the exercise of discretion. · In conclusion, for the reasons outlined, the grievance is di~issed. 13 ~ated at I~ron~o _ this ~Qrh day of M~¢~ , 19S~. Jane E. ~rich Vice-Chairperson J. McManus M~be r 1. COwan . -- Me~ber 14