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HomeMy WebLinkAbout1989-1928.Selzer.90-11-15 ONTARtO EMPLOY~S DE LA COURONNE CROWN EMPLOYEES DE L'ONTARtO GRIEVANCE CQMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS t80 DUNDAS STREET wEST. TORONTO, ONTARIO. M5G IZ8- SUITE2100 TELEPHONE/T~-L~PHONE 180. RUE DUNDAS OUEST, TORONTO, (ONTARIO) M5G 1Z8 - BUREAU 2100 (410) 59~-0688 1928/89 In the Matter of an Arbitration Under The Crown Employees Bargaining Act Before The Grievance Settlement Board Between: OPSEU (Selzer) Grievor =and- The Crown in Right of'Ontario (Ministry of Health) Employer Before: B. Keller Vice-Chairperson 'P. Kl~m '. Member G.Mxlley Member For the Grievor: C. Walker Grievance Officer Ontario Public Service Employees Union For the Employer: P. Young Counsel Winkler, Filion and Wakely Barristers and solicitors Hearing: October 12, 1990. DECISION The grievor, Ms. Jane Se lzer, alleges that she was unjustly denied her request to take a vacation from February 9 - 26, 1990. She seeks a declaration that the leave was unreasonably withheld and requiring the employer to adopt a more reasonable standard in the future. Ms. Selzer has been employed as a Secretary in the Psychiatric Hospital Branch, Patient Care Services at the Hamilton._ Psychiatric Hospital since February 1987. On February 15, 1990 she approached her superior, Mr. Tom Chiles and asked for vacation leave from February 9 - 26. Mr. Chiles discussed the matter with his immediate superior, Ms. M.P. Barry, Assistant Administrator, Patient Care Services and the two considered the leave could not be granted. Ms. Selzer was informed of the decision and subsequently grieved. In her evidence the grievor indicated that she required the leave to return to the United Kingdom to visit her father who was going to be transfered to Tokyo for two years. The period she request- ed was the period her husband was able to get leave from his employer. There is no evidence that she explained anything to Mr. Chiles regarding the reason the particular period was re- quested. Mr. Chiles explained to the Board why the request was denied. He' and the grievor are the only two employees in the volunteer services area. His employment with the Hospital.was terminating on January 19, 1990. Granting Ms. S~lzer's request would mean that for the period of her requested leave the department would be without employees. Mr. Chiles explained how, when he attained~_ his position of Volunteer Co-ordinator in October 1988, the department was without any employees as the previous co-ordinator had left suddenly and Ms. S~lzer had been on maternity leave. Both he and Ms. Barry testified that various staffing alterna- tives were tried at the time but none were particularly success- ful. The result was, apparently, disastrous. When Mr. Chiles and Mr. Barry considered the grievor's request they considered the options available to them. Based on the then current situation, and given the 1988 experience, both concluded that there was no way to accede to Ms. Selzer's request and maintain the operation of the Department. The issue in this case is whether there has been a proper exercise of management's discretion as is required by the collective agreement. The Board was referred to two decisions, both dealing with tests to be used in matters of this sort. In Da Costa, 570/84 the Board put the issue in the following fashion: It is management's right to make the decision. But in making the decision, management must engage in a real exercise of managing the undertaking. The decision must be made in the interest of the undertaking, rather than to further some other ends, such as discrimination against people of a particular color or race. One way of expressing this is to say that the decision must not be arbitrary, but must be made in good faith and without discrimination. Management must take into account relevant factors in coming to its decision, and must not base its decision on factors unconnected with legitimate business purposes. If this is done, then the decision cannot be questioned. It has sometimes been suggested that the classic arbitral pronouncement to this effect is the following: "In this and every like case where there is room for honest difference of opinion, if it appears - as here admitted to be a fact - that the employer has acted honestly, we do not feel that a Board of Arbitrators would be justified in interfering, by reversing the employer's decision, for the reason that to do so would result in management by arbitrators rather than management by the employer. In this and every such like case where there is evidence on which a reasonable employer, acting reasonably, could have reached the 'decision such as is here challenged by the union, no board of Arbitrators should interfere." (excerpt from Re Canadian Industries Ltd.. Nobel Works, and United Mine Workers, Local 13031 (1948), 1 L.A.C. 234 (Roach), at 237, and quoted in Re Photo Engravers and Electrotypers Ltd. and Toronto Printing Pressmen and Assistants' Union. No. 10 (1980) , 25 L.A.C. (2d) 88 (Adams), at page 100) However it is put, the essential idea is that an arbitrator is not to ask whether or not management was correct in its decision. Management has the right to make the wrong decision. But management's decision-making must be an honest exercise in managing the undertaking, and no more. The test was put somewhat differently - but with the same effect - in Kuyntjes, 513/84: 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 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 administratiue law concepts relating to the proper exercise of discretion include the'following considerations: 1) The decision must be made in good faith and without discrimination. 2) It must be a genuine exercise of discretionary po~er, 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 consideration must be rejected. In the instant case, the grievor admitted in cross-examination that it was reasonable for management to conclude that it couldn't grant the request because it would leave no one in the department. It was also admitted, on behalf of the grievor, that there was no discrimination or bad faith, that there was a genuine exercise of discretion and that management did consider its operational requirements. The thrust of the argument is that points three and four of the test outlined in Kuyntjes, were not followed. In our view, based on the evidence, and in light of the admissions we are satisfied that there was a real and genuine exercise of discretion by management. Mr. Chiles was aware of the grievor's needs, was aware of the operational concerns and alternatives and, after discussions and considerations with Ms. Barry concluded that the grievor's request could not be granted. We are satisfied that all four tests enunciated in Kuyntjes have been met. We are satisfied that management, with the facts it had at its disDosal, turned its mind to the matter and made a decision that was not discriminator, unreasonable or made in bad faith. Accordingly, the grievance is rejected. Da~ed at Nepean this 15~h day of November 1990, M.B. Keller, vice-ChairPerson P. Klym, Member G. Milley, Member