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HomeMy WebLinkAbout1991-2176.McNally.92-07-07 ONTARIO ' EMPLOY[CS DE LA COURONNE CROWN EMPLOYEES DE L'ON TA RIO GRIEVANCE COMMISSION DE SEITLEMENT R~=GLEMENT BOARD DES GRIEFS ~80 DUNOA$ STREET WEST, $[JITE ~100, TOF~ONTO, ONTARIO. Iv~SG lZ~ TELEPHO~EIT~L~HONE: (4 ~6~ ~80, ~UE DUNDA~ OUE~T, ~UREAU 2~, TO~ONTO (O~TAR/O), MSG ~Z8 FACSI~I~E/T~C~IE : ~E~ 2176/91 IN T~ ~TTER OF ~ ~IT~TION Unde~ ~ CRO~ ~P~YEE~ ~L~CT~ ~iN~NG ~CT Before T~ GRI~CE ~ETTLE~ BO~ BE~EN O~SBU (~cN~lly) Grievor - ~d - The Cro~ in Right of Ontario (Minist~ of Health) BEFOg: O. Gray Vice-Chai~erson W. Rannachan Me.er R. Scott Me. er -FOR THE A. Lee GRIEVOR Grievance officer Ontario Public Service Employees Union FOR THE M. Silverman · EMPLOYER Counsel Stringer, Brisbin, Humphrey Barristers & Solicitors HE~%RING April 21, 1992 AWARD The grievance before us alleges that the grievor "was unjustifiably denied one day leave of absence with pay on compassionate grounds as per Article 55 of the collective agreementf Article 55.1 of the collective agreement provides that: 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. The remedy sought is payment of one day's pay. The grievor, Paul McNally, is a maintenance mechanic employed at Whitby Psychiatric Hospital. He and his wife learned of her brother's death early in the morning of Tuesday, September 10, 1991. He was absent from work from that day to and including Friday, September 13, 1991, when the funeral was held. He kept his supervisor informed. No,ne took issue with his being absent for those four days. The first three days of were treated as bereavement leave, to which the grievor was entitled pursuant to Article 49.1 of the parties' collective agreement. The only question was how the fourth day of absence would be treated. On September 17, 1991, the grievor requested discretionary paid leave for that fourth day, September 13th. He made his request in writing, on a standard form used for requests for leaves of absence of various sorts. The form asks the employee to provide a reason, but leaves very little space for a response. The grievor typed in ~Death of brother-in-law - please see attached memof The attached memo said this: I received the nnfortunate news of the sudden death of my brother-in-law on Tuesday morning 1:30 a.rm, and told my wife. We went to stay at my mother-in- law's house at that time. With all our grief we stayed with her throughout this tragic time. Unfortunately the funeral was on Friday due to the arrival of relatives from Montreal, Ottawa and Saskatchewar~ My family and I were very close to Tim and his son as they lived with us for two years. We had no option but to stay with the family until things were completely settled. Thank you for considering this matter. When he submitted his request he spoke with Lorna Frank, the Assistant Administrator. She makes recommendations on such requests to the Hospital Administrator, Ronald Ballantyne, who is the Deputy Minister's "designee" under Article 55 for employees at the hospital. She got the impression that the grievor was not sure about whether to pursue such a request in these circumstances, and was asking whether it was likely to be granted. A2cer researching and considering the matter, she concluded that she would not recommend it, and made a note to that effect on the request form. She wrote the following note to the grievor and his supervisor, attached it to the request and had it delivered to the grievor's department: Does .Paul still want this forwarded? Three bereavement days do not have to be continuous. Paul could have used up to 2 days [with]out pay to cover the absence [and] used one of the days for the day' of the funeral. Article 49.3 Bereavement Leave. Ms. Frank expected the grievor to respond by saying whether or not he wished the application forwarded to Mr. Ballantyne for consideration despite her negative recommendation. Ms. Frank's note arrived on the grievor's work bench without explanation. He interpreted it as a rejection of his request, and filed a grievance. During the processing of the grievance it became apparent that the request had never been forwarded to Mr. Ballantyne for consideration, So the grievor withdrew the grievance and his request was forwarded to Mr. Ballantyne. When Mr. Ballantyne made his decision he had in mind these guidelines, which appear in a document issued in February 1990 by the Hospital's Personnel Service Branch for the guidance of Managers: Decision Makin~ Guidelines Although Article 55 and Section 74(1) give management wide discretion in deciding whether to grant special leave, this discretion must be exercised reasonably. Intuitively this makes sense, but all the more so since management's -3- decision is open to scrutiny by the Grievance Se~tlernent Board (and for m~agement and excluded employees, the Public Service Grievance Board). A review of the case law on this subject reveals a number of principles to apply in reviewing special leave requests: 1. The decision must be made in good faith, free from arbitrariness and discrimination, i.e., the discretion must be exercised reasonably. While arbitrators are generally reluctant to question the correctness of manage- ment's decision, they must ensure that decisions are made within certain minimum st~ud~ of justice. 2. The decision must be a genuine exercise of discretionary power, as opposed to rigid policy adherence. As one arbitrator stated ~While uniformity and consistency of application of the collective agreement is desired, such consideration should not be ufilf~.ed to the exclusion of a full and fair consideration of the employee's particular circumstances.~ 3. Full consideration must be given to the merits of the individual application under review. By the same token, however, the employee bears a commensurate responsibility to make all pertinent facts known~ Thus, the employee bears the onus to show entitlement to special leave. 4. Management must make reasonable efforts to gather relevant facts while rejecting irrelevant facts. With respect to irrelevant facts, the availability of other means of t~kiug leave, such as access to unused vacation credits, should not be a consideration (as per Article 55). $. Management must act cor~sistently with the decision that was _made. In other words, similar cases should be treated alike. Let's now address the question of what amounts to extraordinary circumstances. Here are a few often cited considerations to take into account: 1. The needs of the workplace (e.g., s~ 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 the relationship and the urgency of the call on the employee's sexvlces by family obligations. 4. Whether the event was a perseus! emergency/unforeseeable (this is not mandatory though). 5. Whether it was possible or appropriate for other arrangements to be made by the employee. The following are a few examples of c£rcumstances in which special leave would norm. Mly not be applicable: 1. - extension of bereavement leave 2. - adverse weather conditions 3. - car break-downs 4. - medical appointments 5. - legal matters 6. - a~tending special courses or writing examinations 7. - religious holidays Nonetheless, there may be exceptions in extraordinary circumstances; merit is obliged to fully consider the merits of each case, thus avoiding rigid policy adherence. Mr. Ballantyne testified that he deals with about 100 requests under Article 55 each year. Sometimes he goes beyond contents of the written request, and seeks additional information. In this case he assumed that the detailed memo attached to the request form contained all the relevant facts, so he made no additional inquiries. The request was one which involved extension of bereavement leave. He denied it because he did not see in it any extraordinary circ~mstances. That denial is the subject of this grievance. One of the union's allegations during its opening statement was that the decision to deny the grievor's request had resulted from mechanical application of a rigid policy that special and compassionate leave is not to be used to extend bereavement leave. Mr. Ballantyne's evidence established that he did not consider himself bound to reject the request, whatever the facts might be, simply because to grant it would be to extend bereavement leave. The guidelines to which he referred suggested that while discretionary paid leave would not ordinarily be provided to extend bereavement leave, it might in extraordinary circt~mstances. Accordingly, Mr. Ballantyne considered whether there were special circ~mstances. That approach to a request of this sort is consistent with the decisions 'of the Grievance Settlement Board in OPSEU (Jackson) and Ministry of Correctional Services (March 13, 1984) GSB No. 487/83 (Roberts), OPSEU (Jackson) and Ministry of Correctional Services (August 9, 1984) GSB No. 146/84 (Kruger), OPSEU (Lacourse) and Ministry of Correctional Services (April 16, 1987) GSB No. 1273/84 (Gandz), and -5- OPSEU (Latulippe) and Ministry of Correctiona! Services (November 24,1987) GSB No. 1000/86 (Samuels). The reasoning followed in those decisions begins with the observation that the parties addressed their minds to bereavement leave in what is now Article 49 of the collective agreement: ARTICLE 49 -- BEREAVEMENT LEAVE 49.1 An employee who would otherwise have been at work shall be allowed up to three (3) days leave-of-absence with pay in the event of the death of his spouse, mother, father, mother-in-law, father-in-law, son, daughter, son-in- law, daughter-in-law, sister-in-law, brother-in-law, grandparent, grandchild, wazd or guardia~ 49.2 An employee who would otherwise have been at work shall be allowed one (1) day leave-of-absence with pay in the event of the death and to attend the funeral of his aunt, uncle, niece or nephew. 49.3 In addition to the foregoing, an employee who would otherwise have been at work may be allowed up to two (2) days leave-of-absence without pay to attend the funeral of a relative listed in sections 49.1 and 49.2 above if the location of the funeral is greater than eight hundred kilometres (800 km) from the employee's residence. This must be taken to reflect what the parties agreed would be the appropriate response in ordinary circumstances to the situations addressed in the article. It follows that the employer would not be expected to respond favourably to a request to extend bereavement leave by granting discretionary paid leave except in extraordinary circumstances. The primary thrust of the union's final arg~ment was that Mr. Ballantyne's decision was defective because he did not adequately investigate the grievor's request. It argued that he should have tried to find out more about the grievor's circumstances. It noted that Ms. Frank's memo was obviously' intended to provoke some further discussion if the grievor intended to pursue the request, yet there was no further discussion. With respect to the employer's obligation to investigate, the union referred to OPSEU CKuyn(jes) and Ministry of Transportation and Communications (April 5, 1985) GSB No. 513/84 (Verity), OPSEU (O'Brien) and Ministry of Correctional Services -6- (June 26, 1987) GSB No. 1157/86 (Gandz) and OPSEU (CarvaIho) and Ministry of the Attorney-General (April 6, 1989) GSB No. 821/88 (Kirkwood). Those decisions hold, as do others, that the employer must exercise its discretion under Article 55.1 in good faith, without discrimination and in a reasonable manner, having regard to the merits of the individual case and without rigid adherence to "policy.~ In the O'Brien case, the board found that the decider had acted improperly in two respects: he applied an arbitrary rule, and he chose to disbelieve the employee's statements about his personal circ~m.~tances without made any investiga- tion of them. The later element was also present in the KuYn~es case. A decision which rejects an employee's request because the decider disbelieves the employee's account of his or her personal circ;~mstances is obviously arbitrary if thai disbelief is unsupported by a proper investigation of those circumstances. In the Carvalho case, the grievor had requested special leave for three-quarters of a day so that she could be at the hospital when her husband had some elective surgery. The request was made before the event. The decider did not understand why the circ~mstances described in her request made it necessary for her to have leave, when the hospital was close enough for her to visit during the lunch hour. Without questioning the employee on that point, either directly or through others, he denied both leave and pay for the period of leave. When her grievance came to arbitration, the employer agreed that the grievor should have been granted leave, and' disputed only whether the leave should have been paid rather than unpaid. The majority of the board found that if he had questioned the griev0r, the decider would have discovered additional facts which explained why she needed to be away from work for the requested period. It found that the decision was procedurally deficient because of the failure to investigate further before deciding. It also faulted the decision because the decider had acted on a belief that discretionary paid leave was only to be given when the necessity for leave arose out of an emergency. The award concluded that the proper remedy was an award of compensation for the period of leave in question. -7- In Carvalho it was implicit in the reasons the grievor offered for her request that she felt it would be necessary for her to be away from her regularly scheduled work on the occasion in question. The decider disbelieved that assertion. He did not think it necessarily followed from the facts she gave in her request. He chose to act on his disbelief without asking the employee to elaborate on the basis for the implied assertion which he had chosen to disbelieve. From this perspective, the circ~rn~tances addressed in the Carvalho decision were analogous to those addressed in the O'Brien and Kuyn~jes decisions. By contrast, here Mr. Ballantyne accepted both the account which the grievor gave of his circumstances and his need to be absent in those circumstances. The issue was not whether some kind of leave was necessary, it was only whether the circ~m~tances warranted paid leave. In concluding that they did not, Mr. Ballantyne did not reject any express or implied statement of' fact by the grievor, unless every request for leave is to be taken as impliedly representing that some undisclosed facts warrant the granting of paid leave. On that view, there would be no burden on an employee requesting discretionary paid leave to offer any facts in support of the request. That is inconsistent with the assertion at page 8 of the Carvalho decision that there is such a burden. So it seems to us that the circumstances here are distinguish* able from those considered in the decisions cited by the union and do not as clearly give rise to an obligation to investigate further. While Ms. Frank's note invited a further dialogue that was not pursued by her or by Mr. Ballantyne, we note that the grievor did not respond to the invitation, either at the time or when his initial grievance was found to be premature and before the request was forwarded to Mr. Ballantyne. We also note, however, that Mr. Ballan. tyne's practice was to seek more information when it appeared to him that the employee has not made an effort to set out his or her circ~]mstances in any detail. The reason he did not do so here is because he thought the grievor had set out his circumstances in a relatively detailed way in the memorandum he attached to his request form. It would be unfortunate if the message of any decision on this point was that employees are better off saying as little as possible about their circ~m~tances, so that management is obliged to draw out of them whatever case might be there to be made for a compassionate leave. Whatever their strict legal rights or obligations in that regard, it is in the best interests of the participants in a matter such as this that there be some dialogue before a genuine request is rejected. Accordingly, we think it would be unwise to pronounce on the precise limits of the decider's legal duty to investigate if it is unnecessary to do so. We might first consider what a further investigation would have revealed. The union says that if Mr. Ballantyne had investigated further, he would have learned that from early Tuesday morning September 10, 1991 until the following Sunday, the grievor's wife stayed at her mother's home in Picketing, 50 minutes' drive from the h~me she shared with the grievor and their children. The children continued going to school during the day. The grievor stayed home while the children were home, and spent the school hours with his wife's family in Pickering. He had difficulty making alternate child care arrangements. Since his work schedule requires that he leave for work before the children leave for school and remain away from home until after they return, he could not have attended work for a full day during the time his wife was away. It is apparent from the grievor's own testimony that these additional facts were of no substantial relevance to the decision Mr. Ballantyne had to make. The grievor testified that while his children were at school he spent his time with his wife and her f2raily in Pickering. He made no attempt to arrange to work reduced hours to accommodate his difficulty with child care arrangements because he intended to "stay with the fsmily until things were completely settled~, just as he said in his memo. If he had been able to arrange for child care, he would simply have spent more time with his wife's family. No.one criticises the grievor for this. Difficulties with child care had nothing to do with the grievor's need for a fourth day of leave. As Mr. Ballantyne thought, the reasons the grievor needed that fourth day of leave were fully set out in the grievor's memo: the funeral was delayed because of the distance to be travelled by -9- those attending it, and the grievor was simply not going to return to work until that funeral was over. Accordingly, it is unnecessary to determine whether Mr. Ballantyne was obliged to seek further information before making his decision, because there was no further relevant information to be obtained. Mr. Ballantyne determined that the circumstances giving rise to the grievor's request were not of the extraordinary sort which would warrant paid leave extending bereavement leave. This seem.~ an entirely reasonable assessment. In Article 49.3 of the collective agreement, the parties have agreed that additional time away from work made necessary by an employee's own difficulty in travelling to and from a funeral is to be dealt with by granting unpaid leave. Here, the grievor's additional time away from work resulted from others' di~qculties in travelling to a funeral. As the grievor's circumstances are analogous with those addressed in Article 49.1, the granting of unpaid leave in those circumstances seems entirely reasonable. Accordingly, this grievance is dismissed. Dated at Toronto this 7th day of .July, 1992 Owen V. Gray, Vice-Chair W. S. R~nnach~n, ~ember J. R. Scott, Member