Loading...
HomeMy WebLinkAbout1989-0890.Culkeen.90-05-03 · ONTARIO EMPLOYES DE LA COURONNE ' CROWN EMPLOYEES DE L'ON TARfO GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, TORONTO, ONTARIO. USG lZ8. SUIT~. 2~00 TELEPHONE/T~L~-PHONE rE0, RUE DUNDAS OUEST, TORONTO. (ONTARIO) M5G 1ZO- BUREAU 2100 (416) 598-0688 890/89 IN THE MATTER OF AN ARBITRATION Under THE CRO~ EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN: OPSEU (Culkeen) - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer BEFORE: M.R. Wright Vice-Chairperson I. Thomson Member M. O'Toole Member FOR THE D. Wright GRIEVOR: Counsel Ryder, whitaker, Wright and Chapman Barristers & Solicitors FOR THE J. Benedict EMPLOYER: Manager Staff Relations and Compensation Ministry of Correctional Services HEJtRING: January 3, 1990 ' DECISION This decision deals with a claim by the Grievor, Mr, H. Culkeen, for payment of two (2) days of Special or Compassionate leave. The Grievor claims that the Ministry has violated the provisions of Article 55.1 of the Collective Agreement which reads as follows: "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 Grievor has been employed since January 1976 as a Correctional Officer at the Peterborough Jail. On April 19, 1989, while at work, the Grievor got a telephone call from his wife stating that she believed she was getting labour pains. His wife had been expecting to give birth on ~pril 21. The Grievor's wife informed him that she had called her obstetrician and was waiting to hear back from him. About 15 or 120 minutes later she called again. Her obstetrician wanted to see her as soon as possible. She had been able to arrange for someone to act as a baby-sitter for their two three-year old twin daughters while she was at the Doctor's office. The Grievor's wife asked the Grievor to come and take her to the Doctor's office. The Grievor got permission to leave immediately. The Grievor drove his wife to the obstetrician's office who expressed the .opinion that t'here would probably be some further developments' later in the day. The Grievor stayed home with his wife. There is no problem as regards April 19; the Grievor was granted special Or compassionate leave for that day. - 2 - Later in the day, the Grievor's wife gave birth to a boy. The birth actually took place at approximately 9:30 p.m. on April 19. The Grievor returned home at about midnight. About 12:20 a.m. on April 20, the Grievor telephoned the institution and informed the officer in charge that he would 'not be in on April 20 and 21 and the Grievor received permission to be absent on those two (2) days. The claim of the Grievor is for payment for special or compassionate leave for those two (2) days, namely, April 20 and 21. The Grievor and his wife had arranged in advance to have three {3) baby-sitters available when Mrs. Culkeen gave birth which, as already stated, was expected to take place on April 21. When Mrs. Cutkeen called the baby-sitters in question on April 19 she discovered, much to her dismay, that none of them were available. Two of the baby-sitters were sisters and it turned out that both of them were then ill with pneumonia. The third baby-sitter advised Mrs. Culkeen that she could not come in because she was writing high school examinations on April 20 and 21. The Grievor testified that his wife "scrambled" and was able to find a neighbour to come in and look after their two daughters for a couple of hours while the Grievor was at the obstetrician's office with his wife on April 19. The Grievor's mother who lives about ninety (90) miles west of Peterborough drove'in to look after the twin daughters. The Grievor testified that his mother is sixty - 3 - (60) years of age, suffers from angina and is physically incapable of lifting the children or of looking after two three-year old children for an extended period of time. The solution was therefore for the Grievor to stay at home to look after the children with the assistance of his mother. The Grievor's presence at home became even more urgent on April 21 since Mrs. Culkeen was released from the hospital in the morning of April 2t because of overcrowding in the hospital. To add to his problems, the Grievor testified, the twins were both suffering from fevers induced by colds which they had picked up. The Grievor's claim for special or compassionate leave was dealt with on behalf of the Ministry by Mr. G. R, Thibault, Superintendent of the Peterborough Jail. On April 21, 1989, Mr. Thibault wrote to the Grievor asking him to forward in writing to Mr. Thibault "...the details of the particular circumstances surrounding the need for the length of absence involved. More specifically, please provide information with respect to the emergency you encountered, the family obligations you needed to meet, or other particular circumstances or arrangements that you faced during this time". The Grievor responded in writing on April 26 providing Mr. Thibautt with the information hereinbefore set out. Mr. Thibault wanted further information and on May 3, lg89, he wrote to the Grievor saying in part as follows: "Before reaching a decision in this matter, I would appreciate your providing further information with - 4 - respect to the difficulties you encountered in arranging baby-sitting services and the problems you encountered because of the illness of your daughters". Mr. Thibault responded in writing on May 19, 1989 in which he set out in detail the arrangements which had been made for baby- sitter services and how the plans had fallen throu§h, through n~ fault of his own or of his wife's. Mr. Thibault was not satisfied that a case had been made out to justify payment of special or compassionate leave and on June 5, 1989 he wrote to the Grievor stating in part as follows: "Concerning your request for April 20 and 21st, it is my view the difficulties you described pertaining to baby- sitting services did not pose an extraordinary or emergency situation that would warrant my §rantin§ special and compassionate leave under the circumstances. The illness of your daughters was also weighed and, based on the facts you presented, a parental presence was not necessary at alt times. I also considered the situation you faced on April 21st given the added factor of your wife's release from hospital. I do not consider this additional factor as presenting an unforeseen or emergenc% situation wherein I would grant special and compassionate leave. I must., therefore advise you that your request for Special and Compassionate Leave for both April 20 and 21st has not been approved". Mr. Thibault concluded his letter by agreeing to grant leave to the Grievor for April 20 and 21st on the understanding that the leave would be charged against accumulated credits such as vacation, lieu days, etc., unless the Grievor chose to take the two (2) days without pay, Mr. Thibault's letter resulted in the grievance before us. - 5 Mr. ThibauIt testified before us and produced a memorandum dated March 10, 1981 which deals with the policy pertaining to special and compassionate leave in the Ministry of Correctional Services. For our purposes, the essential part of the memorandum reads as follows: "Without limiting the generality of the foregoing, and depending on the particular circumstances, the following types of considerations may be taken into account: 1. The needs of the work place (eg. staffing and operational requirements) 2. The importance of the request to the employee and the hardship caused by denial 3. In family matters, the nature of %he relationship and the urgency of the call on the employee's services by family obligations 4. Whether it was possible or appropriate for other arrangements to be made by the employee 5. Whether the denial or granting of the leave would constitute a form of discrimination, i.e. similar cases should be treated alike (Underlining added) It has been held by various panels of this Board that we are not to sit as a sort of appellate Court in reviewing the Employer's decision. Article 55.1 confers a discretionary power upon the Deputy Minister or his designee as to who would be entitled to receive special or compassionate leave. Various panels of this Board have, however, developed a four-fold test to be applied by this Board in deciding whether the Employer's discretion has been properly exercised. See Ford GSB #1528/87 (Wilson) and Chow GSB #2004/86 (Forbes-Roberts}. The four-fold test has been described a~ follows' l. 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 4. All relevant facts must be considered and conversely all irrelevant considerations must be rejected It is our opinion that the standard applied by Mr. Thibault failed as regards items 3 and 4 of the foregoing fourofotd test. We found him to be inflexible in his approach and committed to rigid policy adherence. When discussing the criteria to be applied in this case Mr. ThibauIt talked in broad general terms within the context of the policy statement without addressing those policy criteria to the facts before him in this particular case. His was an exercise in bureaucratese. When finally, particularly under cross examination, Mr. Thibault attempted to deal with t'he specific factual situation which confronted the Grievor we found his appreciation of the Grievor's dilemma to fall short of a reasonable assessment of the situation. Mr. Thibault stated that after the son was born on the evening of April 19th the call on the Grievor's family services had diminished since he knew then where he stood "in terms of his obligations to work the following day" We find that kind of statement to be incomprehensible as well as unbending. The Grievor was obviously confronted with a substantial problem. In a word, he did not'have anyone outside of his mother who was available, on a limited-basis, to look after the two three- year old twins. We utterly disagree with Mr.. ThibauIt's statement that the Grievor was no longer confronted with an urgent problem. Item three (3) of the policy statement expects the Employer to consider "in family matters...the urgency of the call on the employee's services by family obligations", We are satisfied that the Grievor had no choice but to remain at home to look after his children on April 20 a~d 2t as well as to bring his wife and new child home on April 21. Mr. Thibault conceded that the Grievor was "genuine" in his overall approach to the problem but Mr. Thibault felt that he should have been able to make alternate arrangements for baby-sitting, The fact is that the alternate arrangements had fallen through, Arrangements had been made for three (3) baby- sitters to be available but through no fault of anyone the plans fell through or failed to materialize. Mr. Thibault contented himself by stating that "it was possible for the Grievor to look at alternatives" but when he was asked what these alternatives would had been no explanation was forthcoming. The policy statement which is followed in the Ministry of Correctional Services is eminently reasonable. Unfortunately, the manner in which Mr. Thibault applied the policy statement to the factual situation before him was quite unsatisfactory. Given the fact that the Grievor's wife gave birth tw.o /2) days earlier than expected; that the three year old twins ,were both ill with colds and fever; that the arrangements for three (3) baby-sitters had fallen through leaving the Grievor and his w~fe without any baby- sitter; that because of crowding conditions in the hospital the - 8 - Grievor's wife was being released only two (2) days after child- birth and, further, that the Grievor's sixty I6D) year old mother who suffered from angina was unable to lift the twins, we think that the Grievor was ,perfectly justified in seeking special or compassionate leave and that it was unreasonable of the Ministry to deny it. Accordingly, the grievance is allowed. We direct the Ministry to grant the Grievor leave-of-absence w~th pay upon special or compassionate grounds for April 20 and 21 and to reinstate to the Grievor any vacation days which may have been applied by the Ministry to April 20 and 21 by reason of the circumstances described above. We will remained seized of this grievance arbitration in the event that any difficulties should be encountered in implementing this decision. DATED at Ottawa this..3rd day of May, 1990 MAURICE W. WRI~H'T Vice-Chairperson I. THOMSON Member M. O' ToSL£ Member