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HomeMy WebLinkAbout1992-0605.Montgomery et al.93-06-25 ----- ~\ , ..- ~ ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DEL 'ONTARIO _.II GRI.EVANCE COMMISSION DE , . SETTLEMENT REGLEMENT : BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO. M5G lZ8 TELEPHONE/TELEPHONE (416) 326-138 180 RUE DUNDAS OUEST BUREAU 2100, TORONTO (ONTARIO) M5G lZ8 FACSIMILE /TELECOPIE (416) 326-139 ,.) 0605/92 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Montgomery et al) Grievor - and - The Crown in Right of Ontario (Ministry of Health) Employer BEFORE H Finley Vice-Chairperson P. Klym Member F. collict Member FOR THE A Lee GRIEVOR Grievance Officer Ontario Public Service Employees Union FOR THE M Smyth RESPONDENT Counsel Genest Murray DesBrisay Lameh ~ Barristers & Solicitors HEARING January 11, 1993 I .-c j '~ 0.- f GSB 605/92 o E C I S ION i> The Grievor, Mr John Montgomery, is an Ambulance Officer with the Ottawa-Carleton Regional Ambulance Service He occupies the position of Ambulance Of f iicer 2 and h'as been with the I Ministry of Health s i nc e October 15, 19'70 Mr Montgomery resides in Almonte, Ontario, which is north.."west of Ottawa, 57 kilometres from his workbase which is located in the south-east quadrant of Ottawa, close to the Ottawa International Airport Mr Montgomery is grieving that he was denied "special leave" / under Article 55 1, infra on the occasion of a severe snowstorm which hit the area on'January 14, 1992 at about 0300 hours It resulted I in his not attending work due to weather, road, and visibility conditions The Union alleges that the Employer failed to properly investigate the c'ircumstances and give full consideration to the I request in order to determine whether or not it merited leave on special or compassionate grounds The Employer takes the poSition that in exercising its discretion, it did so reasonably, and that as part of its consideration it took into account that all other scheduled employees were able to get to work I twas the conclusion of the Employer that the Grievor presented no special circumstances which distinguished his failure to reach his headquarters Mr Montgomery had previous ( for a request discretionary leave, in 1982, following a break-in at the family home and a further request due to weather and lateness on December 12, 1992 Article 55 reads as follows ( 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 [Emphasis added] ~- 1 \ ,. i J I I .p I The evidence showed that Mr Montgomery was scheduled to work from 1900 hours on January 14th to 0700 hours on January 15, 1992 On January 14th, the local radio station advised that I there would be freezing rain In the early afternoon it did rain t heav i ly and as the afternoon progressed, a drop in temperature I resulted in the predicted freezing rain and later, snow pellets j In consequence, Mr Montgomery, anticipating poor driving r conditions, arranged for a sitter to corne earlier than usual and i left his home at 1635 hours, ahead of his usual departure time of 1810 hours His normal route which he follows to avoid traffic, is over paved roads, approximately 1/2 ~n the country and 1/2 in the city and he started out on that route Mr Montgomery owns a 1985 Buick Century Station Wagon which he was driving that day He travelled along Highway 44, which is a main artery, onto Upper Dwyer Hill, a double-lane highway which is a secondary road During this time there was freezing rain and the roads were slushy, and the combination hampered his visibility To attempt to deal with this, he had his heater and wipers on full but was still required to stop twice to remove ice from the windshield Continuing on, he crossed Highway 7 which appeared to him to have been neither ploughed nor salted, onto Flewellyn Road and hence to stittsville His trip to this point, had taken 4~5 minutes which is approximately the length of time that Mr Montgomery norma lly requires to cover the total distance and he still had about 20 kilometres to ttavel He was listening to his car radio and heard the local weather report and commentary He learned that the driving was treacherous, that worse was to come and that I schools and federal government offices had closed early. I twas : at this time that he "made a decision not to become a statistic, but to return home " He turned back and retracing the same route, returned to the intersection of Upper Dwyer Road and Highway 44 and then, in a further attempt to make his way to 1 work, went north to Highway 417 This road is double-lane to Bayshore where it becomes triple-lane It is a highly travelled road at that time of day; however, Mr Montgomery was proceeding I 2 -- "":- ~ against the traffic He continued on this road for 30 minutes, turned onto 'l'erry Fox Drive, then to the north part of Stittsville He planned to go a I 0 n'g Eagleson Road, to Fallowfield Road and thence to the Airport However, he found that the opp had 'closed the road in Stittsville He observed that the weather conditions remained the same as earlier and that the road conditions indicated that there had been an increase in use It was at this point i n time, 1750 hours, that he notified his Employer that he would not be corning to work He spoke with Angelo Milo, who was the shift manager Mr Milo was not Mr Montgomery' ,s supervisor Mr Milo thanked him for calling and commented on the severity of the weather conditions As usual, at that time; there was no discussion of how the absence would be dealt with On the date in question, January 14th, Mr Montgomery was the only employee of 4 ambulance officers and a total of 12 employees who was~ absent from work Nor was any of the others late in arriving at work A replacement for Mr Montg.omery was available to work from the outset of the shift On January 20, 1992, Mr Montgomery's next scheduled work day he, attended work and submitted a memorandum requesting discretionary leave It read as follows Send to> Mr Angelo Milo Assistant Manager OCRAS January 20, 1992 From John L Montgomery #12497 Discretionary Leave Dear Sir, On January 14, 1992, as you recall a record blinding storm pounded this province This season's worst storm encased in ice and snow, virtually paralyzed schools and closed business [sic] Police adVised motorist to stay off high ways due to scores of minor accidents The storm nicknamed by environment Canada as the "BOMB" Approx 17 30 hours I called in and informed you of my difficulty in getting in Due to the unsafe conditions, my two attempts to drive in were hampered due to the freezing rainy, 3 \ \ visibility next to zero, I am requesting discretionary leave for lost hours of work due to the storm I in advance for your assistance in I thank you this matter [s igned]" John L Montgomery [sic] This memorandum was sent by ma i 1 and was not discussed with its recipient Following this, on Febr1;lary 2, 1992, Mr Montgomery was given a 'Leave of Absence Request Authorization Form' by the shift supervisor, Billy Bennett, and it was indicated to him that leave requests should be submitted with reasons There was no discussion between Mr Montgomery and Mr Bennett about the particular request and, on February 4th, Mr Montgomery completed, signed, and submitted the form He indicated in it that his request was for discretion'ary leave and referred the reader for reasons to his previous memo which he attached The request was submi tted. to Mr Lyle Massender, Manager of the Ottawa-Carleton Regional Ambulance Service, who forwarded it to the Regional Office in Almonte Mr Massender testified that his "role is to gather written paper work" and to "ensure sufficient information is on the form to assist the employee" He has no decision-making authority with respect to leave under Article 55 Mr Massender did not \ speak with Mr Montgomery concerning his request It is the responsibility of Mr Blake Forsyth, the Regional Manager, to evaluate requests for discretionary leave, make I recommendations an!i forward them to Toronto to the Directoz:: and Assistaht Director, Emergency Health Services Branch who)consider requests for discretionary leave from 6 regions Mr Forsyth consider.s the circumstances of each request and does not te1y on past practice in his evaluation In the case we are considering, Mr Forsyth "added a number of items to John Montgomery's written request " Further, he 4 " , ev~luated weather conditions on that day and as part of that process contacted Environment Canada and received the information which is recorded on the Discretionary Leave Form, infra As well, he checked with Mr Massend~r, the attendance of other employeeS at the ottawa-Carleton Regional Ambulance Service on that shift He learned that none of the others, most of whom must travel into ottawa, had been absent or la.te None, however, would have travelled within 15 kilometres of the area in which Mr Montgomery was t.ravelling Mr Forsyth also used his own experience of weather and travel on January 14th as a point of comparison in evaluating the \ Grievor's request Mr Forsyth drives a F,ord Aerostar which has a rear-wheel drive and which is, in his experience, "notoriously not good in snow" He also uses both major and secondary roads to travel to and from work He went from o t ta wa to Bell's Corners at 1530 hours Following a brief stay, he departed from Bells Corners at 1630 hours and drove for 3 kilometres along Moodie Drive to Highway 417, along Highway 417 to Highway 44 along which he travelled 16 kilometres to Almonte and a further 4 kilometres to his home Bells Corners is located approximately 10 ki10metres north east of Stittsville Mr Forsyth observed that though traffic waS proceeding, driving required extr;a care He was not aware of the closing of any roads or of the closing of federal offices but testified that he was not contacted by the Emergency Measures Co-ordinator In order to round out hls investigation of Mr Montgomery's request, Mr Forsyth reviewed 4 ambulance dispatch records which recorded calls received and responded to by the ottawa-Carleton Regional Ambulance Servic~ on January 14th between 14 10 and 20 36 hours From these, after considering the times required for arrival and return, and the fact that there was no indication I of any road problems at the dispatch, Mr Forsyth concluded that road conditions were not extremely poor and that traffic was not a significant problem He acknowledged, however, that at the time of his conclusion, he was not a wa r e of Mr Montgomery's 5 .' ( I specific route and that the only road on which both he and the Grievor travelled was Highway 44, in the Almonte area To conclude his review of Mr Montgomery's request for discretionary leave, the Employer Qompleted the following form - and forwarded it wi th the request and attached memorandum to the Head Office in Toronto I I DISCRETIONARY REVIEW 55.1 NAME J.MontqomeryDATEFeb2/92 Nature of Event Date Jan 14/92 - 19:00 hrs. - Called away from work - Absent from work X Shift 1900 - Late - Other Review - Any other provisions apply ( - Any other credits or arrangements suggested Other Lieu\ Bank Credit - If due to weather, provide history JaIi 14 - 0300 - rain - 14:00 ice pell[lets] - l6.00 - snow (-6) NW 20 mph 19:00 - snow (-13) NW 20 mph 3 cm snow Jan 15 0300 - end 7 cmtotal - Details/emergency n~ture/severity/uniqueness , I SEG ASSD } - OSGWPE, VARS, PLANTAGENET, ALL MOVING NO PROBLEMS, SAME ROAD DIRECTION PLANT, OLD HWY 7 - OPEN? BLOWING NO PROBLEMS Comments RM [Reqional Manaqer] - Kanata - 15.30 Approved ___ ___Not Approved X [siqned B. Forsyth] [Regional Manager] Following the usual practice, Mr Forsyth spoke with the Assistant Director to provide geographical and attendance information with respect to the local area and the shift on January 14th The Grievor was not contacted by Mr Forsyth or by the Director or Assistant Director Throughout this process, it was Mr Forsyth's understanding from Mr Massender, that Mr Montgomery had accepted an alternate credit which would have been the usual practice He had no information as to whether the credit was vacation or statutory, 6 ~ " ~ nor did he know whether or not he had any credits available Mr Forsyth made it clear that the use of credits in no way influenced his recommendation Later in the month, Mr Montgomery received a denial of his request, signed by the Director, Mr Graham Brand, dated February 17, 1992 The denial stated simply, "Not Approved " no , explanation was provided at that time, either written or verbal As a result of this, Mr Montgomery cO'nsul ted the Chief Shop Steward, who said he could grieve and he did so on April 3, 1992 Later in April, a response, signed by the Regional Manager, Mr Forsyth, was received as part of the grievance process Mr Montgomery was paid for the shift in question and assumes that the absence was covered by either vacation or statutory time He noted that the deduction from his credit bank had been made prior to the denial of his request and that he had at no time authorized any deduction The Union's Representative, Ms Anne Lee, submitted that the test, in this case, is not whether the decision was correct, but whether the consideration of the request was proper The Union argued that in order for the Employer's discretion to be properly exercised, reasonable attempts must be made to ascertain the ( . the consideration was basis of the request and that in this case, i n~su f f i c i e nt, and noted that no evidence was ava i lable from the actual decision-maker since he was not called Ms Lee submitted fu r the r , that the automatic deduction of credits from an employee is credit bank without the individual's authority is not J permitted under Article 55 Ms Lee argued that the Ambulance Dispatch Reports were ( irrelevant, given that the roads referred to therein, were not those which were travelled by the Grievor and that the Employer's failure to check Mr Montgomery's route is evidence of insufficient consideration Road conditions, she maintained, could vary within a short distance Ms Lee reviewed Mr. Montgomery's actions on the day in question and noted that he attempted to get to work, made I 7 --- "- ,_allowances for t'he weather by departing earlier than normal, tried an alternate rou,te after he turned back the first time, notified the Employer promptly and submitted a reasonably detailed request i) In conclusion, Ms Lee urged the Bc;>ard to grant the discretionary leave, not as a replacement for the Employer's ! ~ decision, but as a remedy for its failure to properly consider I the Grievor's request S!ie further requested that the Board should remain seized Mr Michael Smyth, Counsel for the Employer, stated that the Employer was in agreement wi1;:h the Union that the issue is whether the Employer failed to exercise its discretion without arbitrariness, bad faith or discrimination and submitted that the onu~ which lies with the Union to prove the failure, has not been satisfied in this case Mr Smyth no t,e d that, although we can only speculate on the decision-maker's considerations, the process, as it is set up, does allow discussion between that individual and the Regional Manager and elaboration of the information, particularly in those / cases in which the decision is different from the recommendation Mr Smyth submitted that the evidence indicated that a thorough investiSJation had taken place and that the results of this investigation were before the decision-maker for his consideration Mr Smyth reviewed the steps that Mr Forsyth had taken during his investigation and noted that 'he had driven a portion of the Grievor'sroute during the time in question in a vehicle which would not have provided him with any driving advantage over the Grievor, tha,t the dispatch reports, while not covering precisely the same area were close to it He also, Mr Smyth noted, contacted the weather office as well as inquiring about the success or failure of others getting to work on that occasion His review and subsequent recommendation was based on these considerations and this was, Mr Smyth argued, a reasonable exercise of the Employer's discretion There was no adherence to 8 \ rigid pol icy nor ) was there consideration of irrelevant factors As to the issue of the unilateral deduction of credits, Mr Smyth noted that there is no mention of this complaint in the grievance He submitted that, i f~ the Board agrees that the discretion was exercised in good fai th and wi thout a.rbi trar'iness or discrimination, t then the grieVance must be denied The parties referred the Board to the following cases and I these were duly reviewed OPSEU (Pieter B Kuyntjes) and Th,:! Crown in Right of Ontario (Ministry of Transportation and Communications) (1984), GSB ,. 513/84 (Ver i ty) OPSEU (Carl Stacey) and The Crown in Right of Ontario (Ministry of Correctiona~ Services) (1987), GSB ,. 0193/85 (Roberts) OPSEU (H O'Brien) and The Crown in Right of Ontario (Ministry of Correctional Services) (1987), GSB ,. 1157/86 (Gandz) OPSEU ( (M Chow) and The Crown in Right of Ontario (Ministry of Labour) (1987), GSB It 2004/86 ( Forbes-Roberts') OPSEU ( (M Chow) and The Crown in Right of Ontario (Ministry of Labour) (1987), GSB ,. 2004/86 (Forbes,.-Roberts) OPSEU (Dennis F. Mailloux) and The Crown in Right of Ontario (Ministry of Correctional Services) (1988), GSB ,. 0087/88 (M G Pichet) OPSEU (J Carvalho) and The Crown in Right of Ontario (Ministry of the Attorney General) (1989), GSB It 0821/88 (Kirkwood) The Board accepts the established arbitral jurisprudence with respect to arbitral review of management's discretion, that is, that the scope of its review is 1 imi ted to the decision- making process, as opposed to the decision itself The process in this instance had a number of steps involving a number of individuals who considered the Grievor's request The steps were as ~ollows 20 Jan The Grievor mailed a memorandum to the Assistant-Manager of the Service f ~ " Memorandum returned and Leave of Absence Request Authorization sent to Grievor for completion. I 2 Feb The Grievor submitted a Leave of Absence Request Authorization with the previous memorandum attached to the Manag~r of the Service 4 Feb The Manager of the Service signed the request form ( and forwarded it to the Regional Manager for his consideration I 4/5 Feb The Regional Manager spoke with the Manager of the Service and Environment Canada, obtained 4 dispatch records, consulted his own travel log and considered this inf'ormation ) 6 Feb The Re1g i ona 1 Manager forwarded the Leave of Absence Request, with Mr Montgomery's memo atta'ched, the Discretionary Review 55 1 form wi th details and comments and his recommendation that the request for discretionary leave not be :approved, to the Directbr/Assistant Director Emergency Health Services, Toronto - Feb Assistant Director spoke with the Regional Manager inquiring about the attendance of other empl,oyees on that shift and certain geogra~hical details 17 Feb Director accepted the recommendation of the Regional Manager and denied the request. - Mar Grievor informed by letter of denial 3 Apr Grievance filed by Mr Montgomery Reference to the above chronology, shows that the Grievor's request, once submitted, passed through 3 different levels - the Local Manager, the Regional Manager, and the Assistant Director, before arriving at the decision-maker, the Director During this process there was no contact with the Grievor with respect to his request or the reasons for it The Local Manager's role, Mr Massender testified, is "to gather the ~ritten paper work" and to "ensure there is sufficient information on the form to assist the employee " He testified ! that "employees are advised" and that ".1 f the information was insufficient [he] would tell the employee and ask for further 10 = -- ! information to be added" The evidence showed that Mr Massender ) made no inquiries of the Grievor but determined, on the basis of Mr Montgomery's attached me mo rand um', that this provided I ! sufficient information "to assist the 1/ employee" There was no evidence that he considered the request and the reasons for sufficiency of information Nor was there testimony as to ! whether he made any attempt to enquire whether crucial I I I information was lacking We know that he did not contact the Grievor, howeve~, and it is the Grievor who would have been the obvious source of info;rmation in this respect It is worth noting that, although the local manager is the lowest level of management involved in the de cis i~ 0 n - ma kin g process in cases of discretionary leave requests, he or she occupies a crucial position in the process This is the person who controls the information flow to the higher level personnel who are involved He or she decides whether the employee should have or requires the opportunity to have further' inpt,lt or involvement There two approaches to take when arriving at I ate I such a decision One can take the view that the information goes forward as presented unless there is something obviously lacking or incorrect. Or, one can approach it from the point of view tha-t employees making a request for discretionary leave should be given an opportunity to clarify, expand upon or discuss their reasons as presented, unless there are clear indicators as to why this opportunity should not be offered Since, the initial controller of information flow does not know, with certainty, what considerations the levels above him or her will take into account, it seems reasonable to offer requesters the opportunity unless there are clear reasons f'or mak ing an exception The Regional Manager, used the Grievor's memorandum and his own personal experience of travelling in the opposite direction on, with one exception, other routes as the basis for further I inquiries He also considered 4 ambulance dispatch records which he stated were not from the immediate locale He wanted to know from an independent source, the severity of the weather \ 11 ---~----_.- 1 conditions and contacted Environment Canada He did not inquire as to local road conditions from the Ministry of Transportation or the Ontario Provincial Police or other individuals responsible for the management of roads, traffic and emergencies but re 1 i'ed ; initially on his own experience He then made inquiries of the Local Manager wit~ respect to attendance of others and ambulance drivers' experience in other locations during the shift in , question He made no inquiries of the Grievor Mr Forsyth weighed the information and concluded that a denial was appropriate I The Assistant Director received a recommendation for denial Having done so he would be seeking information which would help him determine if there were any reason why he should not follow the Regional Manager's recommendation He made inquiries about attendance of others and geographical details from the Regional Manager who was relying in part on his personal experience No inquiries were made of the Gri€vor at this stag€ At the final stage, the recommendation for denial went forward and there was no evidence as to what the Director considered except, we know that he had a recommendation for denial by two leve l.s and there was no evidence that he sought further information Once again, no inquiries were made of the Grievor ~ The Board ,recognizes that the likelihood and appropriateness of contac,t with the Grievor diminishes as the request proceeds through the various levels I This analysis of the decision-making process, raises certain questions Should the employee contact the employer once he or she has submitted a request for discretionary leave ? An employee who does so may run,the risk of seeming impatient or demanding In the Board's opinion, however, there is nothing improper about doing so However, once the request has been submitted, it is - not unreasonable for an employee to expect the employer to take 12 , the next step and to make further inquiries or ask for clarification Should the employer contact the employee following receipt of a written request, with reasons, f,Dr discretionary leave 7 To \ do so is not mandatory however, in the ~oard's opinion, for the Employer to give proper consideration to a request the employee must be given the opportunity of 'presenting all the relevant I information The Board is of the opinion, that: in the matter of discretionary leave, which sterns from personal circumstances of the individual requesters ,_ the onus is on the employee to prov id'e the relevant information since that can, practically, corne from no one else However " the r eq u e's t e r is at a disadvantage when restricted to a written submission, in that he or she does not know on what other information the recommender and decision-maker are going to rely, or, for that matte,r, how the reasons for the request have been received For instance, Mr Montgomery was not aware that Mr Forsyth was relying on his own personal driving experience on that day, and had he realized that, he might have included more detailed reports of local road conditions which he encountered, such as the road-closing by the opp in Stittsv~lle Further, should the Employer re'ly solely on the written submission of the employee requesting disGretionary leave 7 Mr Massender saw several facets to his role - to gather written paper work - to ensure sufficient information is on the form - to advise employees - to obtain furtner information in those cases where he determ!nes that the information is insufficient Mr Massender gathered the paper work and, we do- not know precisely how, determined that the information on the form sufficed He did not, therefore advise Mr Montgomery with respect to, his request, nor did he attempt to obtain further information The employee was not offered the opportunity to clarify or expand on his memorandum, nor was he told, prior to 13 1 its submission, that his memorandum was to be the sole information from him, on which the determination would be made Had he been aware of that, he might have offered his reasons in a \ more detailed way However, the Boa:r;d is of the opinion that the Griever was unwise to assume that the storm in question would L necessarily be vie wed or experienced by others as severely as by himself, thereby alleviating the need for details .1 In spite of the Grievor's assumption, it is the Board's conclusion that the provision of opportunity for 'clarification and expansion to a requester of discretionary leave, over and above the initial written request, even with reasons, is a necessary component of proper consideratiqn of the request The Board has concluded that, in this instance; the Employer failed lto give the request proper consideration The Board does .not believe that the Employer failed to consider the request conscientiously or had any ulterior motive for denying the opportunity The failure seems due more to an unawareness of the ifuportance of the offering of the opportunity in the process In the result, the Board orders that special leave be granted to ( the Grievor for January 14, 1992 and that the appropriate adjustments be made to his credit bank The Union submitted that the "automatic deduction" of credit from the Grievor's bank was without authority and that this is not permitted under Article 55 2, supra The Employer replied that no ment'ion of this matter had been made in the or iginal grievance In the Board's opinion, evidence of sufficient preciseness has not been put forward for the Board to make a declaration on this matter, but the Board recommends that the Employer review its procedures with respect to these deductions ~ 14 '. - ---- ., I /' ,j I I The Board will remain seized of this matter in the event that there is difficulty in implementing its decision I I .) Dated at Kingston this 25th day of June, 1993 '- I "I D i's s e n t " Dissent Attached F T Collict Member Dissents d/IC 0~ Peter Klym Member Concurs l \ 15 ( I ,~ -- .. - - <' ( y'"- ~; \. (~, DISSENT Re G.S.B #060'5/92 (MONTGOMERY) +) This Member is not in agreement with this award for the following reasons. Once more in cases of this nature (Special and Compassionate Leave), one must consider two seemingly different lines of jurisprudence, well established in the G S 8 , but which cause one to reach different conclusions. These are, 1 The quasi-judicial VERITY position established in KUYANTJES (G S B #513/84) which stated that management decisions associated with the exercise of discretion must be made within the confines of certain minimuhl standards of administrative justice (i e the forefold considerations), and 2 The broader SWINTON and PICHER approach to the management decision- making process. In YOUNG and MCSS (1979) 24 L.A.C (2d) (SWINTON), the I .following was stated, I "An arbitration board. must decide whether the employer has acted reasonably and without discrimination and has turned its mind to the merits of the particular request. If satisfied that these criteria have been met, the board must . ' deny the grievances, even if it disagrees with the result reached by the employer or if it might have reached a decision other than that reached by the employer The board's concern is the reasonableness of the decision, not its "correctness" in the board's view Such an approach is the proper one to adopt in situations such as leave of absence cases, where the collective agreement gives the employer a broad discretion and where the board has less familiarity than 'has the employer with the needs of the work place" (pages 147-148) " ~ ".... ~-- . (C-_ p" , , I \ 2 M PICHER, in G S B. #87/88' (p. 16) has no difficulty in accepting the conclusions reached in the KUYANT JES award (VERITY), but expre$sed concerns, J " lest any confusion evolve from the reference to administrative law standards as they may relatecto tne scope of arbitral review" I (p 16) The award continued, "That concern is prompted in part by the position of the Union jn this case, the thrust of which is that in a grievance of this kind the burden is upon the Employer to establish that it has conducted 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 In our view the approach urged upon this Board by the Union risks I undulv iudicializing decision making in the dav to dav management of the Emplover's operations. Acceptance of the Union s position would be perilously tantamount to requiring the Emploverto conduct an inQuirv, on Quasi-judicial lines, every time a request is made bv an emplovee which requires the exercise of the Emplover's discretion. The 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 management'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 some material way, to borrow the well-worn phraseology of administrative law, risks converting a collective agreement into an instrument for management by arbitrators. In our view such broad powers of review should not be found unless thev are supported bv the clear terms of a collective agreement." (underscoring added) . (' ('t;' -, 3 Are these broad powers of review included in thu collective agreement as related to ,requests for Special and Compassionate Leave under the provisions of Article 55 1 ? Clearly they are not. Moreover, it is quite apparent that the application of the four considerations set out in KUYANTJES (G S B #513/84) and which are intended to be used to review decisions \ made by Management to ensure that they meet c~rtain minimum standards of administrative justice, actually involves, " enquiry, on quasi-judicial lines, every time a request is made by an employee which requires the exercise of the , Employer's discretion" (G S B #87/88, P 17, MAILLOUX) In fhis subject Montgomery case, it is clear that the Ministry of Health has endeavoured to establish a "process", province-wide, to establish consistency in the evaluation of requests for Special and Compassionate Leave from employees in the Ambulance Service, to ensure a'standC)rd of fairness for all employees. It would appear however, that in this Montgomery case, the majority has found that the Employer has failed to QO back to the, emplovee to ask for additional information, notwithstanding the fact that the Employer, a) checked out the nature of the storm (weather office, etc.) b) routes driven by ambulance drivers in the same area, c) reviewed attendance of other drivers on the same day and shift, d) reviewed the supervisor's own personal experience driving within the approximate area where the driver would have been requireci to come to work, (~ / ( , 4 'e) requested Mr Montgomery to submit a written request concerning his request for sp'ecialleave for the day in question, f) etc., etc. Regardless of the above, the majority in this case concluded at page 14, that "It is the Board's conclusion that the provision of opportunity for clarification and expansion to a request of discretionary leave over and above the initial written request, even with reasons, is a necessary component of proper consideration of the request." As a consequence, the Board concluded at page 14, that " the Employer failed to give the reque,st proper consideration" However, with reference to the question of legal or evidentiary burden concerning matters of this nature, M Picher in G$ B #87/88 has stated that this responsibility lies with the Union (p17), and, "In considering that question a board of arbitration must not lose siaht of the fact that the arievor is the' party with the \ best first-hand knowledae 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 manaaerial decision maker." (underscoring added) '. /r: it (:' I \ ;; ( 5 .. In the Montgomery case, the Employer had established a review process for the review from across the province of requests related to Special and Compassionate Leave There was no evidence to the effect that the process was not implemented in accordance with this process, .nor was there any evidence or claim by the Union that the Montgomery request was considered arbitrary or in bad faith Accordingly, as stated at pages 19 and 20 in G S B #87/88; (MAILLOUX), "As Vice-Chairs Swinton and Roberts have clearly stated, it is not the place of a board of arbitration to determine whether management's decision was "correct" If the evidence disclosed that the employer has acted reasonably, without discrimination, and has applied its mind to the merits of the employee's request in a way that is devoid of arbitrariness or bad faith, the grievance cannot succeed." In this case, management has acted reasonably It had established a procedure province-wide to review requests of the sort advanced in this case Management turned its mind to the merits of Mr Montgomery's request and gathered information concerning the reasonableness of his request as related to the experiences of other ( employees, driving conditions, etc There was neither evidence of, nor a claim that the Employer had acted in bad faith or in an arbitrary manner In fact, as stated at page 14 of this majority award, "The Board does not believe the Employer failed to consider the request conscientiously or had any ulterior motive for denying the opportunity" The only criticism of the Employer's performance was that the Employer did not go back to the employee for.!!lQ!!! information, over and beyond the initial written request filed by Mr Montgomery Surely this conclusion by the majority in this award places the Board in the position of management decision-making by ~rbitrators, -- a position /' '" (. /,/~'" v-. i': '. 't~ i'" \ 6 which should be taken by boards of arbitration, "unless ,they are supported by the 01ear terms of a collective agreement." (G S 8 #87/88, MAILLOUX, P 17) f I I Given the above evidence and the established jurisprudence, this Member would have not disturbed Management's disposition of the subject grievance This grj~vance should have been dismissed I flq ~/~ I J /'