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HomeMy WebLinkAbout1991-2136.Donnon.92-06-26 ON TA RIO EMPL 0 YEs DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO GRIEVANCE C,OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS I$0 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTAR~. MSG [Z8 TEL~NO,'TE/~L~PHONE· ~4 167 3~-)385 lEO, ~UE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO). M5G 1ZE FAC$IMILE,'T~LECOPlE : (4 ~6) 326-1396 2136/91 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARG~ININ~ ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (Donnon) Grievor - aB~ - The Crown in Right of ontario (Ministry of Healt~ Employer BEFORE: A. Barrett Vice-Chairperson J. Carruthers Member D. Clark Member FOR THE L. Harmer GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE S. Patterson EMPLOYER Counsel Legal Services Branch Management Board of Cabinet HEARING April 9, 1992 DECISION Mr. Daniel Donnon grieves the denial of special or compassionate leave for August 24, 1991, when he was stranded in cottage country by reason of the break-down of his car. Mr. Donnon works 12-hour shifts as a Psychiatric Nursing Assistant at the Oak Ridge Division of the Penetanguishene Mental Health Centre. He works two days on and three days off, then three days on and two days off. During the summer Mr. Donnon likes to go up to his trailer camp and fish on his days off. The trailer camp 'is about 90 miles from his home near Penetanguishene. He keeps a boat and motor on a trailer, and tows it from his camp to a f~shing spot about 26 kilometers from there. On Friday, August 23rd, Mr. Donnon and a local friend were returning from the fishing spot just after dark on a secondary gravel road when Mr. Donnon's car just stopped. (He discovered later that it was a timing belt problem.) They were two or three kilometers south of the nearest town and hoped that somebody driving south would give them a lift back to camp. Unfortunately, all of the cars travelling the road that night were heading north. A few people stopped to help, and they gave the drivers the telephone number of Mr. Donnon's local friend's wife, with a request that she come and pick them up. The wife was out that evening, so did not get the message and come to pick them up until 2 about 12:45 a.m. She drove them home, and the car and boat were left abandoned on the road. Shortly after 1:00 a.m., Mr. Donnon telephoned his wife to ask her to phone into his workplace and explain the situation to them. He was scheduled to start work at 11:00 a.m. the next day and did not know whethe.r he could make it or not. Mrs. Donnon phoned in and explained the predicament. She could not drive uP to pick her husband up because she is afraid of highway driving, but she tried her son who lives nearby and found he was away for the weekend. The next morning, Mr. Donnon walke~, over to a local gas station for help, at between 8:30 and 9:00 a.m; There he was told that there was no mechanic on duty that weekend and no tow truck available. Mr. Donnon testified that the owner of the garage telephoned two other gas stations in nearby towns and could not locate a tow truck. Mr. Donnon went back to camp and found a neighbour who agreed to tow his car and boat. However, when they arrived at the scene, the neighbour was disinclined to tow.both due to the hilly and windy road conditions, so he towed the boat trailer, and they arrived back at camp around 10:30 a.m. Another neighbour agreed to go with him to tow the car, albeit with a time delay, so the car did not actually arrive back at the garage until about 2:30 p.m. Meanwhile, at about 1:00 p.m., Mr. Donnon had telephoned the Greyhound bus station and found out there was a bus going south'from Parry Sound to-Honey~arbour at 3:20 p.m. and'8:20 p.m. At 3:00 p.m., Mr. Donnon set out to hitch-hike into Parry 3 Sound, but knew he was too late to make the 3:20 p.m. bus. He met his fishing friend on the road, who agreed to drive him all the way home if he could wait until 6:00 p.m. This was agreed, and Mr. Donnon finally arrived back at his home near Penetang at 7:30 p.m. At the first available opportunity, Mr. Donnon applied for special or compassionate leave for the m~ssed day of work. In due course, the leave was denied hy Mr. Kytayko,. the Hospital Administrator, and this grievance arose. Article 55 of the collective agreement under which such leaves may be granted is set out below: ~. "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 compassionate grounds. 55.2 The granting of leave under this Article shall not be dependent upon or charged against accumulated credits." Mr. Donnon completed an application form for the special leave, which does not have much room on it to describe the circumstances leading to the request. His supervisor requested further and better particulars, and Mr. Donnon provided them in a three-page letter which essentially set out the circumstances described above in detail. Upon further request, Mr. Donnon also provided car repair bills and long distance telephone bills to 4 corroborate his explanation. Mr. Donnon says he did everything he could think of in the circumstances to get into work that Saturday; as much as any reasonable person could have done, and therefore he should have been granted the special leave on the basis that he was prevented by circumstances beyond his control from getting into work. Mr. Kytayko testified that he declined to grant the leave based on all. of the evidence provided to him because 'he felt that a car break-down in a remote cottage area was not an unusual life event. There was no deep distress or urgency in'the situation that would be sufficient to engender compassion.. Mr. Kytayko felt that the grievor had made the car and boat his first priority, ~ather than getting.into work. By the time he turned his mind to bus schedules, it was already too late to get into work. Mr. Kytayko said that he gets about 150 to 200 requests a year for special or compassionate leave and approves about 654 to 70~ of them. Each case is considered on its own merits, but he uses guidelines drawn up by himself. In general his view is that this special leave should only be granted in situations which are exceptional and uncommon in everyday life or that warrant compassionate treatment by the employer. More specific criteria were set out in a memo dated June 27, 1991, as follows: "Each request for Special or Compassionate Leave will be reviewed .on an individual basis and .will take .into account considerations such as: - the needs of thework place (e.g. staffing and operating requirements). - the importance of the request and the hardship caused by denial. - the degree of distress to the employee associated with the circumstances at hand. - in family matters, the degree of relationship and urgency of the employee's attendance to family obligations. - the extent to which it was appropriate or possible to make alternate arrangements. - whether denial or granting of the leave will constitute a form of discrimination (e.g. similar cases should be treated alike)." With respect to the last criterion, the uniQn asserts that the denial of leave in this case was discriminatory, in that the leave. was Granted in a similar case. Some time earlier, Mr. Harry Donaldson had been on vacation in Florida with his wife and was driving back through Buffalo. He Got stuck in a snow storm there, so booked into a hotel and phoned in to work at about 7:00 p.m. to advise that he would not be able to Get in the next day for his scheduled shift. Mr. Donaldson's application for discretionary leave was initially rejected but was accepted at a step i grievance meeting. Mr. Kytayko did not recall this particular case so could not comment on it. Employer counsel, in argument, distinguished the fact situations on the basis that it was truly impossible for Mr. Donaldson to get into work because, if his car could not Get through neither could any other vehicle. In Mr. Donnon's case, if he had been prepared to abandon his car and.boat and make getting into work his first priority, he could have done so. Mr. Kytayko felt the grievor could have tried harder to find a garage to tow 6 the vehicles and he could have called friends or co-workers in Penetang to see if one of them would come up to get him. Mr. Kytayko stressed that the grievor had a Good excuse for taking the day off, but there were not sufficient special or compassionate Grounds that would call for the employer to pay for it as opposed to requiring the grievor to use a vacation or other credit. We have examined the jurisprudence of this Board relating to our jurisdiction to interfere with a decision made by management in the exercise of its discretionary Dower as set out in article 55 of the collective agreement. While the Wording of article 55 appears to confer a broad discretion upon the employer in deciding whether or not to grant special or compassionate leave, it is well established that such discretion must be exercised reasonably and non-discriminatorily. As set out in Kuyntjes, GSB #513/84 (Verity), at page 16, the proper exercise of this discretion must 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 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 irrelevant consideration must be rejected." 7 The final guiding principle is that the Board must show deference to the exercise of managerial discretion under article 55, and not decide on the correctness of the decision: the issue is one of reasonableness. Even if we do not agree with the decision made by management, we should not interfere with it unless we find it unreasonable or discriminatory: see Elesie, GSB #24/79 (Swinton); Mailloux, GSB #87/88 (M. Picher). We have examined the cases where this Board has ruled against management and overridden its refusal to grant the leave. In O'Brien, GSB #I157/86 (Gandz), the Board found that management had' an arbitrary and rigid rule against granting leave for bad weather conditions. In Carvalho, GSB #821/$8 (Kirkwood), the Board found that.the employer had failed' to obtain sufficient information before making its decision and in insisting that the leave was only available in emergency situations. In Sahota, GSB #2454/87 (Verity), discrimination was found, in that another employee had been granted the leave in very similar circumstances and there was insufficient evidence adduced to justify the differential treatment, in Freeman~ GSB #87/80 (Weatherill), the Board found that on the employer's own criteria, reasonably construed and applied, the employer should not have disallowed the leave on the basis that the absence was not occasioned by an "absolute necessity". We find this to be a borderline case. We may well have granted the leave if the decision had been ours to make. We do not find it unreasonable that Mr. Donnon would decline to abandon his car and boat in favour of getting into work, However, the situation of a 8 car breaking down is not an exceptional occurrence and not one that cries out for compassionate consideration. Mr. Donnon was not in a situation where it was impossible for him to get to work; as it was for Mr. Donaldson. Rather, he was in a position of selecting between two priorities. Not surprisingly, he chose to preserve and protect his car and boat. In result, we find that Mr. Kytayko exercised his designated discretion after a review of' all of the relevant facts, using reasonable guidelines, an4 that his ultimate decision cannot be labelled unreasonable or discriminatory. Accordingly, the grievance is dismissed. Dated at Toronto this 26ch day of W.l.ne',1992. A. Barrett, Vice-Chairperson e (addendum d ~ Co follo~ rs, Member D. Clark, Member ADDENDUM Re: GSB File # 2136/91 OPSEU - Donnon I have read the Draft Award and agree with reservations. Article 55 reads as follows: ARTICLE 55-SPECIAL AND COMPASSIONATE LEAVE 55.1 A Deputy Minister of 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. 55.2 The granting of leave under this Article shall not be dependent upon or charged against accumulated credits. The following may also.apply to Article 55 and reads as follows: There is a Personnel Policy & Procedures Manual which has provincewide application for the Ministry 'which provides guidelines. Under Leaves of Absence, it sets out the following: POLICY In order to ensure that managers exercise discretion in a reasonable and nondiscriminatory manner in deciding whether or not to grant special or compassionate leave, it is recommended the . following considerations be taken into account: - the needs of the workplace; i.e. staffing and operational requirements - the importance of the request to the employee and the hardship caused by denial - in family matters,' the nature of the relationship and the urgency of the call on the employee's services by family obligations .- whether it was possible~or appropriate for the arrangements to be made by the employee - whether denial or granting of the leave would constitute a form of discrimination; i.e. similar cases should be treated in like manner ...2 Normally, special and 'compa:ssionate leave provisions are not applied in the following circumstances (but requests may be made under other appropriate Articles or Sections): - religious holidays - weather conditions - extension of maternity leave - mandatory referrals - sickness of family members (subject to above- mentioned circumstances) - wedding - Car or other transportational breakdowns - extension of bereavement leave - medical appointments - moving - legal matters - attending graduations DUTY TO ACT REASONABLY The Board jurisprudence as well as the pertinent decisions of the courts on the above issue are well known. It also appears to me that there is sufficient steps that can be taken under the grievance procedures to deal with this type of grievance. 1. What was the grievor reason for compassionate leave? a) car broke down 90 miles from home b) his personal property of boat, motor and trailer could be' left behind unprotected and subject to theft The grievor took all the reasonable steps that a reasonable person would have or could have taken. Mr Kytayko stressed in his evidence that the grievor ~ad a good excuse for taking the day off. Mr Kytsyko uses guidelines that he drew up himself. o~.3 The cost of this arbitration versus one day's leave with pay for a request that is within reason and denied appears to be "Penny Wise and Pound Foolish" when one, looks at money constraints. Good labour and management relations could have avoided this arbitration case. Hoping the above is taken in the manner and spirit in which it is intended. Signed, ~James Carruthers