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HomeMy WebLinkAbout1989-0207.Constable.98-05-03~ ~. . . . ONTARtO EMPLOYES DE LA COURONNE ; " . CROWNEMPLOYEES DEL'ONTARIO GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DLINDAS. STREET WEST, SUITE 2100, TORONTO, ONTARfO, MSG ;28 TELEPHONE/T~_L~--PHONE; (416) 326-;388 180, RUE DUNDAS GUEST, BUREAU 2;`O0, TORONTO (ONTARIO), MSG 1Z8 FACSIMILE/T~:'L£COPIE : (4;'6) 326-1396 ?.07/89 IN THE MATTER OF AN ARBITRATION Under . THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN: OPSEU (Constable) Grievor - and - The Crown in Right of~Ontario (Ministry of the Solicitor General) Employer - and - BEFORE: J.E. Emrich Vice-Chairperson E. Seymour Member J. Scott Member FOR THE C. Wilkey GRiEVOR: Counsel Cornish Roland Barristers & Solicitors FOR THE E. Hipfner EMPLOYER: Staff Relations Officer Management Board of Cabinet HEARING: January 16, 1990 Deci si On The grievor, .Eric Constable, claims that he was wrongfully denied one day of cc~passionate leave requested, to attend the funeral of his wife's grand~other on Friday, February 10, 1989. 7~ne pertinent provisions of the collective agreement are as follows: ARTICLE 55 - SPECIAL AND ~ASSIONATE LEAVE 55.1 A Deputy Minister or his designee may grant an employee leave-of-absence with pay for not ~ore 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 acc~ulated credits. The grievor is classified as a Cleaner II and works at the Peterborough District Headquarters of the Ontario Provincial Police under the supervision of inspector K.W. Buxton. On Tuesday, February 7th or We~esday, February 8th, 1989, the grievor's wife's g~andmother died. On Taursday, February 9th, the grievor met with Inspector Buxton to request bereavement leave for the purpose of attending the funeral pursuant to Article 49 of the collective agreement. During the course of their conversation, Inspector Buxton informed the grievor that the bereavement clause did not extend to include leave to attend hhe funeral of a spouse's grandparent. %he grievor then requested compassionate leave for the same purpose. Tae grievor acknowledged i~ chief and in cross-examination that he.discussed with Inspector Buxton the reasons for his request. ~he grievor told Inspector Buxton that his wife and her grand~other were quite close, that his wife had lived with her 9randmother for part of her high school years, that'theY would visit her regularly with their children and that they were the firs~ people to whom the grandmother would turn for help with any problem. He did not tell Inspector Buxton the frequency of their visits, but indicated that 1 there were regular visits. It was made known to Inspector Buxtcn that the grandmother and the grievor's f~ily live in Peterborough. In the course .of their discussion, Inspector Buxton told the grievor that he didn' t think that cc~passionate leave could be granted in the circumstances and that he would recommend against granting the one day's leave. However, it was clear at all times that Inspector Buxton intended that the grievor should be given the day off without pay o~ the day could be charged against his vacation credits. However, Inspector Btu(ton told the grievor that he wanted to make scme enquiries in Toronto to obtain further advice. Inspector Buxton contacted his supervisor, Superintendent Wheeler, and an official aL the F~,man Resources branch for guidance on how to administer the article. Following this consultation, Inspector Buxbon called the g~ievor back to his office to obtain sc~e further information. It was at this juncture that Inspector Buxton questioned the grievor about the nature of'the relationship to his wife's grandmother. Inspector Buxton was able to recall that the grievor told him that his wife's grandmother was 96 years old at the time of her death. However, even with this further information, Inspector Buxton told the grievor that he would recommend denial of the request and that if the grievor wished to press the matter further, he would have to submit a written request. Later the same day, the grievor submitted a written request for one day of compassionate leave "to attend the funeral of my wife's grandmother, E~elyn Northey, on Friday, February 1~, 1989. The funeral is to be held at Kaye Funeral Hc~ne, Peterboroug~, Ontario." At the time the grievor submitted his w~itten request, he and Inspector Buxton reviewed the reasons for the request, but no new information surfaced. Inspector Buxton told the grievor that he would forward his request to the person with authority to decide the matter, but that his rec. c~endation would be to refuse the grievor's request. The content of Inspector Buxton's recc~-m;iendation was typed on the bottom of the grievor's request and reads as follows: The above is forwarded for your consideration. This request was received after the employee was denied bereavement leave under Article 49 of the Collective ~xjreement. I strongly oppose this request and suggest approval will just open the door for employees to receive Ccmpassionate Leave for anybody's death. I feel Article 49 was negotiated to cover this type of leave and we should be guided by its content. Mr. CONSTABLE has adequate vacation credits and was granted one day vacation leave to attend the funeral. In light of the above, I recommend this request be denied. Inspector Bu~ton explained that the designee of the Deputy Minister who would have authority to make the decision concerning the granting or refusal of oompassionate leave would be Chief Superintendent Crowley, Division Commander of Field "B" Division. He added that Chief Superintendent Crowley would be relying on the informatio~ that he would make available in order to render his decision. Inspector Btu(ton added in cross-examination that the information contained in his re~endation constituted all the information which Chief Superintendent Crowley would have tO make his decision. He acknowledged that he had no conversation with Chief 'Superintendent Crowley, nor would it be likely for Chief Superintendent Crowley to copduct a further independent investigation into the fact. Chief Superintendent Crowley testified that based c~ the information contained in the grievor's written request and the content of Inspector Buxton's recommendation, he concluded that cc~passionate leave ought not to be granted. In cross-ex~ination, Chief Superintendent Crowley added that 3 he would need information regarding special circumstances, beyond a stated desire to attend a funeral, to warrant a grant of compassionate leave for the death of a person not within the scope of the bereavement leave provisions.. As examples of such special circumstances, he mentioned that it would be relevant to know whether the employee was needed to make funeral arrangements, or if the aggrieved wife was solely dependent upon the said employee for transportation, the distance to be travelled to the funeral and whether the employee had a close relationship with the deceased person. explained that he expected the employee making the request for compassionate leave to set forth the grounds upon which leave is sought. If there were any questions arising that needed clarification, he would contact the employee's supervisor, Inspector Buxton in this instance, to obtain further information. When asked in cross-examination what he would expect if Inspector Buxton was aware of circumstances not evident frc~ the written request, Chief Superintendent Cxowley responded, "I'd expect them to be included in his footnote". He was hhen asked if he relies on Inspector Buxtcn to provide him with the background information, to which he replied, "Yes, on all matters within his District - I'd expect information and a recommendation~ from them - indeed we demand it". When asked whether he was aware of any details not forwarde4 to him that are relevant to the grievor's request, Chief Superintendent Crowley replied, "Not to this day - not aware at all". Counsel for the g~ievor then informed Chief Superintendent Crowley of the following details: that the grievor's wife's grandmother was 96 years old at the time of her death{; that the grievor's wife had lived with her grandmother during part of her high school education; that the grievor and his family lived in the same city as the deceased grandmother and had been accustcmed to making regular visits with their children; and that the grandmother called upon the grievor's family first for assistance if any problems arose. Counsel for the grievor then posed the question whether the above factors would be considered relevant, to which Chief Superintendent Crowley responded, "Certainly. It would have been useful to have that information before me." When asked whether that was the sort of information he would expect Inspector Buxt~on to pass along to him if it was not {ncluded on the face of the request, Chief Superintendent C~owley replied, "Yes. I'd expect Inspector Buxton to ask the requestor to include that information." ~aen clarification was sought on this point in re-examination, Chief Superintendent Crowley added, "I'd expect in matters such as this - if they'd had a discussion o it would be reasonable for the grievor to put that information on the request." Fr(m~ the foregoing review of the evidence, the Board finds that Inspector Buxton did not set forth 'the factual underpinning suppOrting his recommendation that the grievor was not.entitled to compassionate leave. That is to say, the facts uncovered in the course of his discussions with the grievor were not set forth in the body of the footnote of the grievor's request. Rather, the recc~m~endation expresses a conclusion that Article 55 ought not to be used as an extension to Article 49 bereavement leave entitl~nt so as to "open the door for employees to receive compassionate 'leave for anybody's death". Inspector Buxton testified that he had mo conversation with Chief Superintendent Crowley about this matter, nor was any further information conveyed to Chief Superintendent Crowley. Indeed, Chief Superintendent Crowley admitted that his decision was based on the contents of the grievor's request and Inspector Buxton's footnote to the 5 ~grievor's request. He did not conduct any independent investigation of the facts underlying the request. It is clear that the Employer took the stance that if there were~ relevant facts to support a conclusion that special circumstances existed to warrant a grant of c~{~assionate leave, it was for the grievor to include those facts in the body of the request for leave. Inspector Buxton maintained that the grievor knew or ought to have known from their discussions that the obligation fell upon him to set forth such facts in his request. Indeed, the Board finds on the evidence that Inspector Buxton made it very clear in the course of several discussions that his recommendation would be against a grant of compassionate leave to the grievor. The Board finds that Inspector Buxton made it clear to the grievor that if he wished to pursue the matter further, the grievor would have to make a written request. Although Mr. Buxton thought he had made it plain to the grievor that he should have included in his request any relevant facts which could be viewed as special circumstances,, the evidence shows that the 9rie~or did not in fact realize that it was his obligation to include in his request any facts pertinent to the quality of his relationship to his wife's grandmother. In fact, the grievor had a previous request for compassionate leave to attend the funeral of an aunt approved in 1984. The format of his request at that time was comparably terse,, although mention was made that he was required to act as a pallbearer~ at his aunt's funeral. Finally, the grievor was not aware of the manner in which Inspector Buxton's recommendation was framed, since he did not see the footnote typed on his request until he was informed that his request had been denied by Chief Superintendent Crowley. The Board finds that the grievor did not know, but should have realized frc~ the content of his 6 discussions with Inspector Buxton, that the inclusion of detail as to such matters as the nature of his relationship to the deceased, the reliance his wife had placed upon him for transportation to and comfort at the funeral, and information regarding any functions he was required ho perform at the funeral, would be helpful in assessing his claim for compassionate leave. On the other hand, the Board also finds that Inspector Buxton usurped contro~ of the exercise of discretion in this matter by forwarding his rec~u~endation to Chief Superintendent Crowley without including in his reasons relevant detail obtained through his investigation. Chief Superintendent Crowley was the official vested with authority ho decide this issue; in order to exercise such discretion in a genuine fashion, Chief Superintendent Crowley should have had such helpful detail before him when deciding whether to accept or refuse Inspector Buxton's recommendation to deny compassionate leave. At the time that Inspector Buxton framed his reC°e~mendation, he knew that such detail was not contained in .the body of the grievor's request for leave. Furthermore, in his tes~-im~ny at the hearing, Inspector Buxton admitted that such detail would be relevant when deciding whether cc~passionate grounds exist ho warrant leave on the occasion of a death. In cross-examination, Inspector Buxton admitted that the occasion of a death could provide grounds for cc~passionate leave, but there must be a compassionate basis for the request. In his testimony, Inspector Buxton explained that the grievor reported to work on the days following the grandmother's death and did not appear disturbed by the loss. He gleaned the impression fro~ his discussions with the grievor that it was not the grievor but the grievor's wife who was upset at the loss of her grandmother and for this reason she was urging the grievor to acccm~pany her to the funeral. None of this factual underpinning to his recommendation was included in his footnote to Chief Superintendent Crowley. There were no supplementary conversations between Inspector Buxton and Chief Superintendent Crowley in which detail was pro~ided. In GSB 0M87/88 - OPSEU (Mailloux) and Crown in Right of Ontario (Ministry of Correctional Services~ a panel of the Board, chaired by Mr. M.G. Picher had cause to advert to the standard of arbitral review Of the exercise of management discretion concerning leave. Mr. Picher referred to the case GSB 513/84 - OPSEU (Kuyntjesj and Ministry of T~ansportation and Communications, cited before this panel as well, which adopted an administrative law concept of the reasonable exercise of discretion.. This standard of review is articulated in the Kuyntjes case at pp.16-17: In cases involving the exercise of managerial discretion, Boards of A~bitration generally hesitate to substitute their view for that of the decision-~aker, which is 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 justice. Those . adminis~'rative law concepts relating to the proper exercise of discretion include the following consider ations: 1) The decision must be made in good faith 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 individual application under review. Ail relevant facts must be considered and conversely irrelevan~ consideration must be rejected. In .the application of those minimum guidelines to the evidence presented, the Board is not satisfied that the 8 I~mployer has given adequate consideration to the procedural requirements of fairness as set out above. A~ the Hearing, the t~ployer presented insufficient evidence to establish the nature of the enquiry during which management exercised its decision making process. There is no evidence to establish when and where the enquiry took place, or who was in attendance at the enquiry, or the extent of the fl~ployer's investigation. In the Mailloux case, Mr. Picher supports the ~esults reached in the Kuyntjes award and others, but casts doubt upon the reasoning which .applied an administrative law standard of review to daily operational 'decisions taken by management. In the Mailloux case, counsel for the Union had argued that "the burden was upc~ the Employer to establish that it has conduoted 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. At. pp.17-18, the panel rejects these arguments and reinforces the view that the evidentiary burden remains upon ~the Union throughout to establish that the Employer failed to exercise its discretion reasonably: In our view the approach urged upon this Board by -the Union risks unduly judicializing decision making in the day to day management of the Employer's operations. Acceptance of the Union's position would be periloosly tantamount to requiring the Employer to conduct an inquiry, on quasi-judicial lines, every time a request is made by an employee ,which requires the exercise of the Employer's discretion. Tae consequences of such. an approach should 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 private or public, are two very different things. The prospect of boards of arbitration striking down manage~ent'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 sc~e material way, to borrow the well-worn phraseology of administrative law, risks converting a 9 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 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 the probabilities, that the ~ployer 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 token, however, it is he who bears a commensurate responsibility to make all pertinent facts known to the managerial decision maker. In the panel's view, the Union's argument in the instant case as well would entail shifting the evidentiary burden primarily to the ~ployer to defend the substance and process of its investigation and decision, whereas it is the grievor, with first-hand knowledge of the circumstances, who ought to bear primary responsibility for'bringing the pertinent facts to the attention of the managerial decision-maker. In the Mailloux case, the panel found that the managerial decision-maker provided the grievor a reasonable opportunity to present the relevant factual material supporting his request; he did not fetter his discretion by adhering~ to any rigid policy; he gave full consideration to all the re/evant data available, some of which had' been garnered upon the initiative of his own investigation. Consequently, the Board concluded that the e~idence supported a conclusion that the Employer had acted reasonably, without discrimination, and considered the merits in a way that was devoi~ of arbitrariness or bad faith. In the instant case, it is clear that Inspector Buxton provided an opportunity to the grievor to bring the facts supporting his claim to the attention of management. Furthermore, ik is apparent that Inspector Buxton fully considered these circumstances in reaching his conclusion that there were insufficient compassionate grounds, given that the grievor himself evinced no appearance of distress ~t the death of his wife's grandmother and given that the grievor was not needed to attend to the funeral arrangements, other than transport for his wife, so as to warrant a grant of cc~passionate leave. Furthermore, the Board would find that Inspector Buxton did.not at the material time fetter his discretion by adhering to a rigid policy that compassionate leave would be unavailable for attending a funeral for death of a person not within the purview of Article 49. Whatever his initial views on that might have been, after consultation with Human Resources and others, Inspector Buxton realized that cc~passionate leave could be used in deserving circumstances when a death has occurred. There was no evidence to suggest that Inspector Buxton acted in a discriminatory fashion or in bad faith. However, there is evidence.which appears to suggest that Inspector Buxton may have been influenced by the availability of vacation credits to the grievoc so as to come to the conclusion that the grievor would suffer no hardship through the denial of c~mpassionate leave. This aspect of his decision-making seems inconsistent with the language and intent of Article 55.2 Of the collective agreement. However, more germane to the issue is that Inspector Buxton was not the designee of the Deputy Minister and had no authority to make the decision whether to grant or refuse leave. The evidence shows that it is his function to investigate the merits of a request, report and make a recc~mmendation. Without benefit of the facts underpinning the conc',lusions contained in 'Inspector Buxton's footnote or in the body of the grievor's ll request, Chief Superintendent Crowley, who is the person vested with discretion to decide pursuant to the collective agreement, was not in a position to turn his mind to the merits of the request. He was reduced to affirming or rejecting the conclusions contained in Inspector Buxton's reco~m~endation. Furthermore, by having before him the fact that the grievor had adequate vacation credits, and a dearth of any further relevant facts, the appearance is c~eated of a violation of Article 55.2, even if the Board accepts the denials of Inspector Buxton and Chief Superintendent Crowley of any violation of Article 55.2. Thus, while the Board faults the grievor for including insufficient factual material in his request for leave, the Board also finds a significant and material fault in the process by which the Deputy Minister's designee reached his decision in respect to the grievor's claim for compassionate leave. T~e end result is that the Deputy Minister's designee was not able to take into consideration the individual merits of the grievor's request, The Board finds that respons.ibility is joint as between the grievor and Inspector Buxton to ensure that Chief Superintendent Crowley had sufficient information. While the grievor's responsibility is primary, that is not to absolve Inspector Buxton setting forth the oontent of his investigation which supported his rec~m,endation. By so finding, the Board is not concluding that Inspector Buxton or -Chief Superintendent Crowley made the wrong decision on the substance of the grievor's claim. As pointed out in the Mailloux case, and all the other cases cited to this panel, the. Board has not asserted jurisdiction to determine whether ~R3nagement's decision was correct. In fact, a review of such cases as GSB 100~/86 - Latulippe and GSB 487/83 - Jackson would show 12 that the decisions of management to refuse compassionate leave to attend the funeral of a spouse's grandmother have been upheld at arbitration as reasonable in circumstances where the grievor has been acomamodated with time off fr~m work charged against vacation credits. That the grievor was granted compassionate leave five years previously to attend the funeral of his aunt does not necessarily lead to a conclusion tha~ he ought to be granted leave in these circumstances. Fundamental to this kind of ~eave are the peculiar circumstances of each case which call for sympathetic treatment of the grievor. These factors have been explored above and include such factors as the closeness of the relationship to the deceased, the distress or hardship caused to the grievor by reason of the death, and so on. The Board declines to award cc~passionate leave to the grievor. Rather the Board orders that the matter of the grievor's entitlement to compassionate leave of one day for February 10th, 1989 be referred back for reconsideration by a different desi.gnee of the Deputy Minister for a fresh consideration of the merits of the grievor's claim. The Board reserves jurisdiction to deal with any problem arising fr~m~ the implementation of its award. 13 Dated hhis ~rd day of . May, 199~. .... jJa~e ~..B~ich , Vice~Ch~ii.rpe%%%~: E. ~e2mo~ ~ J.R. Scott Membe~