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HomeMy WebLinkAbout1988-0821.Carvalho.89-04-06 ONTARIO EMP~.OY~S DE LA COURONNE .: CROWN EMPLOYEES DE L'ONTA.RIO GRIEVANCE C,OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, TORONTO, ONTARIO, M5G 1Z8 - SUITE 2100 TELEPNONE/T~-'L~PHONE :~80, RUE DUNDAS OUEST, TORONTO, (ONTARIO) MSG 1Z8'- BUREAU 2100 (416/598-0688 0821/88 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (J. Carvalho) Grlevor - and - The Crown in Right of Ontario (Ministry of the Attorney General) Employer Before: B.A, Klrkwood Arbitrator F. Taylor Member I. Cowan Member APPEARING FOR Chris Dasslos THE GRIEVOR: Counsel Gowllng and Henderson Barristers and Solicitors APPEARIN8 FOR Joe Mideo THE EMPLOYER: Staff Relations Offlcer Ministry of the Attorney General Hearlno: january 9, 1989 AWARD The grievor, Mrs. Julie Carvalho, was a bookkeeper in the Sheriffs office in Bame. On '-. Friday, July 8, 1'988 the grievor met with Mr. Wilson, her immediate supervisor and Deputy Sheriff, and with Mr. Edwards, the Sheriff, to ask for compassionate leave for part of July 20, 1988. Her husband was scheduled to be hospitalized on July 19, 1988 for foot reconstruction. surgery, which was to take place on July 20, 19~8. She did not know the time of the operation as yet. She explained to them that she wanted to be with her husband when he came out of the anaesthetic and that she would schedule her work around the time which she had to be away. The grievor advised Mr. Wilson and Mr. Edwards that she would come into work early to ensure that the primary function of the job, the banking was done before she left Mr. Wilson and Mr. Edwards told the grievor that they did not think that there would be any problem in her having the time off, but that they did not have the authority to allow her to take compassionate leave, and thereby be paid during her absence. As she had used her vacation allotment, Mr. Wilson and Mr. Edwards suggested that she make a written request for the compassionate leave which would have to be directed to Mr. David Henderson, the Director of Supreme and District Court Services Branch, for approval. - On July 11, 1988, the grievor gave her written request to Mr. Wilson, which request stated as follows: "On Wednesday, July 20, 1988, my husband will be in hospital for surgery and I would like to request up to 1 day special or compassionate leave under Article 55 of the Collective Agreement so I may be at the hospital. I may not require the full day depending on what time the operation will be scheduled for by the hospital." Page 2 Mr. David Henderson testified that his office had received the grievofs written request for the compassionate leave on July 18, 1988, while he was on his vacation. He also received a covering letter from Mr. Wilson advising him that the grievor did not have any outstanding vacation credits to use for this day. He contacted Mr. Edwards immediately upon his return on · July 19, 1988, to investigate the request. He learned that surgery on the foot was not required as a result of an emergency, but as a result of earlier plans. His notes and his testimony indicated that -as the grievor did not ask for the whole day off he did not consider it a serious matter. He also considered that the hospital was not far from the Court house, and therefore the grievor would not need very much time to go there if it were necessary. After consideration of these circumstances he decided not to grant the compassionate leave. As Mr. Henderson was away, the grievor did not receive any response until the d~ay of the surgery. Although she had not heard from Mr. Wilson nor from Mr. Henderson, she expected to leave 'to go to the hospital. On July 20, 1988 she arrived fifteen minutes early for work and had done the banking and reconciliation of the cash accounts before Mr. Edwards amved and advised her that her leave was denied. Although it was unclear to the grievor whether it was the time off or the payment for the time off that was being denied, the grievor advised Mr. Edwards that she was leaving, which she proceeded to do. On July 25, 1988 the grievor was advised in writing that her request for special and compassionate leave had been denied by the Branch Director. On July 26, 1988 the grievor filed the grievance and sought compensation for three quarters of July 20, 1988. Page 3 On July 30, 1988 Mrs. Carvalho received a letter from Matt Veskirnets, the management's representative at stage two of the grievance procedure, explaining the basis for the denial, as follows: "As the Deputy Minister's designee, I am replying to your grievance which was heard at the 2nd stage meeting on September 26, 1988, in Barrie. Your grievance was with respect to a request for special and compassionate leave of .75 of a day on Wednesday, July 20, 1988, in order to be at the hospital in Barrie where your husband underwent surgery on his toe. I would like to explain that usually compassionate or special leave is considered for circumstances that fall under the general heading of "personal, unforeseen emergencies". Your particular circumstances on the 20th of July, 1988, did not seem to meet these types of conditions. There was no apparent emergency and the hospital itself was reachable within minutes of your workplace should you have been required. Although I can understand that you wished to be present for your husband's hospitalization, in my view your request does not merit consideration for the granting of compassionate leave with pay. Therefore, your grievance must be denied." Mr. Henderson contacted the grievor on December 5, 1988, two days prior to a pre- hearing to obtain any new information. He obtained more details on the operation and tried to ascertain the nature of her concerns during the operation and her feelings on the operation. He learned at that time that there were no other family members who were available to attend the surgery. This was the first time that she had asked for such leave. After receiving this information, he did not alter his previous decision. The pre-heating on December 7, I988 did not settle the matters between the parties. On December 29, 1988, Mr. Henderson advised the grievor by letter which she received on January 6, 1989 that the leave was denied. The union's counsel submitted that although the employer has the discretion to deny the leave, the employer did not contact the grievor directly and did not make reasonable efforts to Page 4 gather the facts. As the employer did not meet the minimum procedural requirements as set out in the decision of O'Brien (G.S.B #157/86 )(J. Gandz) nor did it make diligent inquiries as to the facts, as in the case of Sahota decision, (G.S.B. #2245/87) (Verity) the process was flawed. The union's counsel argued that Article 55 applies to employees requests involving extraordinary circumstances which merit sympathetic treatment. He subrrdtted that Mr. Henderson did not have all of the relevant information at the time the decision was made. As he did not have the information relating to the nature of the operation, the length of the operation, how long the grievor's husband was off work, the effect of the operation on his job, Mr. Henderson was unable to consider whether or not that compassionate leave should be given. The union submitted that had the employer had ail the information that Ministry should have granted the compassionate leave. The employer's counsel submitted that as article 55 is discretionary, the board is limited to determining whether the management had exercised its discretion in an unfettered manner, and that the board cannot "second guess" management and insert its own decision. The employer argued that the decision tums on whether the information which Mr. Henderson received on December 1~}88 should be considered. In the employer's view, management was able to review its decision up to the present date. He therefore implied that the procedural requirements to canvass the facts were satisfied by the December conversation. The paxties agreed in a written agreement of facts that the grievor was entitled to leave on July 20, 1988. The question is whether the grievor is entitled to be paid during her absence, under the terms of article 55. Article 55 states: Page 5 "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 compassionate grounds. The granting of leave under this Article shall not be dependent upon or charged against accumulated credits." Article 55 provides a discretion in the Deputy Minister or his designee to grant a compassionate leave. However, in order that the discretion can be exercised properly, there must be reasonable attempts to ascertain the basis of the request. This standard is succinctly stated in the O'Brien decision (supra) in which Vice-chairman Gandz states: "In our view, Lake Ontario Steel and Hanson suggest minimal standards of procedural reasonableness. In its discretion, employers must: a.. make reasonable efforts to gain relevant facts as they apply to the particular case .in question; b. apply some reasonable decision rule which is not arbitrary or discriminatory; c. make an honest effort to make a decision between possible alternatives; d. act consistently with the decision that was made." The procedures which the employer had established, required the request to be approved by Mr. Henderson and therefore, Mr. Henderson was responsible for ascertaining the facts. Mr. Henderson admitted that, depending on the nature of the request the usual procedure is, to talk to -the local manager first, and then, if he still needs more information, to talk to the applicant. Although the request in this instance was made nine days before the day off was requested, the request did not come to the attention to Mr. Henderson until the day before the surgery. As Mr. Henderson did not speak to Mr. Edwards until after the close of business on July 19, 1988, it foreclosed any opportunity to contact the grievor before the decision was made. There may be some situations which clearly indicate that compassionate leave should be granted without'making any further inquiries. However, in this situation Mr, Henderson found that he was unable to make such a decision by relying upon the information which Mr. Edwards Page 6 had given him. As the basis~ for the request was not able to satisfy Mr. Henderson and he was unable to determine the necessity of the grievor to have the leave from the information that he had. Mr. Henderson should have obtained more information or should have discussed the leave with the grievor before making his decision. The decision maker can rely on the information given to him by subordinates, but he must be ensure that he has all the facts and is able to determine the stress upon the applicant, the hardship on the applicant and is able to consider the management's objectives in accepting or denying the leave. Mr. Henderson did not discuss the leave with the grievor until December 5, t988. The notes of the two discussions with Mr. Edwards on July 19, 1988 and with the grievor on December 5, 1988 show clearly that the information which Mr. Henderson obtained in December was much more extensive than the information he obtained from Mr. Edwards. In luly, Mr. Henderson was aware that Mr. Carvalho was to have a foot or toe operation, which operation did not arise as a result of an emergency. He concluded that the grievor was not worried as she did not ask for the whole day off and that she could visit the hospital at her lunch hour. When Mr. Henderson telephoned the grievor about four months after the operation, his notes indicated that he learned more about the nature of the operation. He became more aware of the circumstances. He learned that there were no other relatives available to be with Mr. Carvalho when he came out of the anaesthetic and that she wanted to be with her husband. His notes of the December conversation indicate that he found that she was stressed and under pressure. In July, the grievor had told Mr. Edwards and Mr. Wilson that her husband expected that he would be in the hospital for about four days and would be off work for about three to six months, depending upon the success of the operation. This information had been given to Mr. Wilson and to Mr. Edwards, but does not appeared to have been conveyed to Mr. Henderson. If Mr. Henderson had investigated the circumstances more fully, he could have learned that the success of the operation Page 7 could effect the grievor's f'mancial situation, as the grievor's husband was a letter carrier with the post office, and his employment is dependent upon his ability to walk. In December, Mr. Henderson learned that although she had been with the Ministry for eleven years, she had never asked for compassionate leave since she had been with the Ministry, even though she was entitled to make such a request for up to three days each year, under the terms of this collective agreement. The essence of compassionate leave is that the emploYer is making a judgmental decision to not deprive an employee financially for circumstances which evoke sympathy or compassion for the individual. There are no limitations or requirements which must be met under the terms of the collective agreement before the leave is granted. Therefore, contrary to the second stage letter given to the grievor by Mr. Veskimetts, there does not need to be unforeseen or emergent circumstances for the leave to be granted. As Mr. Henderson recognized in his testimony, an emergency is only one situation' where compassionate leave may be given. Therefore, the fact that the surgery was planned is not a basis in itself to deprive the grievor of her leave. Mr. Henderson telephoned the grievor in December 1988 to confirm the information that he had received in July and to determine if there were any other factors to be considered. The information which he received supports the finding that the employer had not made reasonable attempts to obtain all the relevant facts prior to the decision being made. To say, after the decision is made, that notwithstanding all the facts, the leave would have been denied in any event, is self- serving and does not correct the procedural deficiency to obtain the facts before the decision is made. We cannot accept the implication in the empIoyer's proposition that the employer can rectify the defect in the procedure by canvassing the facts the fully in December, in the manner in which he should have in July. Page 8 · The role of the board is not to determine the correctness of the decision, but to ensure that the decision was reasonable. As stated in Sahota, in quoting Re Young and The Crown in Right of Ontario (Ministry of Cotlamunikv ilr~d Social 1Services (1979) 24 L.A.C. (2d) at p. 147 Swinton): "...Rather, the employer must turn its mind to this particular request, and consider both the harm to management's objectives in granting the request and the importance of the request to the employee and the hardship caused by the denial: Canada Valve, supra, at p. 415. An arbitration board, in subsequently assessing what an employer has done in reaching its decision, then plays a restricted role. It must decide whether the employer has acted reasonably and without discrimination and has turned irs raind to the merits of the particular request. If satisfied that these criteria have been met, the board must deny the grievance, even if it disagrees 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 of the decision, not its "correctness" in the board's view." Although it is not an absolute right of the employee to have compassionate leave, if compassionate leave is to have any meaning, if the employee can show a legitimate reason for its request, and can show a reason for compassion, the onus is on the employer to show why the facts do not support the granting of the leave such that its discretion should not be given in the employee's favour. The employer must then make its decision from a knowledgeable position, and therefore must have determined the facts and must have weighed the consequences to the employee. The board finds that the grievor had dislodged the burden upon her to give the facts to the employer by discussing the leave with Mx. Wilson followed by the written request to Ma'. Henderson as required by the employer's procedures. As the request indicated that there was a basis for the request, Mr. Henderson had to make reasonable efforts to obtain the necessary facts to make his decision. In this instance the evidence is such that the time constraints imposed by Mr. Henderson's vacation, prevented him from canvassing the facts in a reasonable manner and thereby prejudiced the grievor. Page 9 Therefore the Board f'mds that the grievance is upheld and that the compassionate leave was wrongfully denied and that the grievor be compensate for .75 of the day. Dated at Toronto, this 6th day of April-, 1989. B. A. Kirkwood, Arbitrator F. Cowan, M ~ m b~e r Dissent" (Dissent attached) I, Cowan, .Member '- DISSENT Having carefully read the majority decision in this matter I feel I must respectfully dissent. The single issue in this' case, as in similar cases dealing with the exercise of managerial discretion, is whether or not management's review of the circumstances leading to its decision meet or did not meet the tests which have been set out in a number of similar cases. In my view they did! On July 8, 1988 the evidence is that the grievor met with the . Sheriff and Deputy Sheriff for what was termed a full and detailed discussion of the reasons for her request. The grievor was assured that her absence from work in order to be with her husband on the day of the scheduled surgery was approved. The only question at that time was whether her absence was to be a leave of absence with pay or not. Since neither of the management representatives present at that meeting were authorized to grant her request she was asked to put it in writing which she did on July 11. This request reached the office of Mr. Henderson, who was empowered to make the decision, on July 18 and Mr. Henderson personally on July 19 on his return from vacation when he immediately sought further details from the on-site manager and gave his decision. Given this chronology I cannot agree with the statement on the bottom of page 8 to the effect that the grievor was prejudiced by the fact that Mr. Henderson's vacation prevented him from canvassing the facts in a reasonable manner. It is not the function of this board to review the "quality" of managements decision and since I believe managements discretion was properly exercised in this case I would have dismissed the g r i evance. TO go a step further it is my view that, the cases relied on by the Union ie. G.S.B. 1157/86 and G.S.B. 2454/87 go too far in requiring that the onus to bring to light the circumstances leading to a request for compassionate leave be that of management. Surely the responsibility for setting out the reasons for his or her request in a clear and succinct manner lie with the employee making the request in the first place.