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Home My WebLink About1992-0802.Sandham.93-03-03 '1 ONTARIO EMPLOYES DE LA COURONNE .d CROWN EMPLOYEES DE L ONTARIO GRIEVANCE COMMISSION DE 1111 SETTLEMENT , REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2 00 TORONTO ONTARIO M5G IZ8 TELEPHOt"jE TELEDi-'O,"~'E - } .:::-0- 8 180 RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONT4RIO) M5G lZ8 c4CS" lILE TEL~COPjE I~ , 126- 96 802/92 IN THE HATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU ( Sandham) Grie - and - The Crown in Right of ontario (Ministry of Health) Emplo BEFORE N Dissanayake Vice-Chairperson P Klym Member D Montrose Member FOR THE A ~ee UNION Grievance Officer ontario Public Service Employees Union FOR THE M Failes EMPLOYER Counsel Winkler, Filion & Wakely Barristers & Solicitors HEARING December 10, 1992 " ( 11 ~} 2 DECISION The grlevor Ms. Robyn Sandham has grieved that the employer has unjustly denied her leave with pay under article 55(1) of the collective agreement, which reads. 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 is employed as a Microfilm Operator II, at the Supply and Services Branch of the Ministry of Health In Kingston, Ontario. On April 21, 1992. while she was at wort< she received a telephone call from the day-care centre Informing her that her three year old daughter April was coughing. had fever and difficulty breathing. In accordance with the day-care centre's policy, the grievor was requested to pick up April as soon as posalbfe. WIth her supervisor's consent the grlevor left work early and took her daughter home. She called the doctor. but he was not avalabfe that day Thus she made an appointment for 11:00 am. the following day AprIl 2 2 , 1992. On the22ndshe cal/ed In and Informed her supervisor that she wood not be reporting to work that day because she had to take her daughter to the doctor After an examination the doctor diagnosed that the chDd was suffering from Asthma. I I The grlevor returned to work on Apr/123 r d 1992 and subl)1ltted a written request for special leave under article 55(1) for the 1-1/2 days she missed on account of her daughter's illness. It Is the denial of this grievance that led to the filing of the instant grievance. While the parties addressed a number of Issues relating to the exercise of the discretion under article 55(1) and the proper scope of review on the part of the Board It is not necessary for us to deal with those issues because the evidence clearfy indicates that there has been no exercise at all 01 the discretion conferred by article 55( 1) That provision envisages thaI the discretion to grant paid leave will be exercised by the Deputy Minister or his designee There ., , ('~ 3 is no evidence before us to indicate that either the Deputy Minister or his designee, who in this case was the Director of the Branch, was ever involved in regard to the grievor's request under article 55(1 ) The only witness called by the employer was Ms. Deb Lowrey the Regional Manager Supply and Services. It is common ground that she was not the designee of the Deputy Minister Her testimony leaves no doubt that it was she who made the decision to deny the grievor's request. Thus during her examination-In-chief, Ms. Lowrey described the process she undertook upon receipt of the grievor's request. She first met with the grievor and obtained more information as to the reasons for her absence from work on April 21-22. She then consulted with the Human Resources Dept. and made the decision to deny the request. She prepared a letter informing the grievor that her request had been denied, signed it and sent it to the grievor I n cross-examination the testimony in this regard was as follows: a. Did you actually make the decision to deny the request? A. Yes. With input from Human Resources. a. Who at Human Resources? A. Pauline Barr and another Human Resources officer in Toronto. a. You are not the Deputy Minister's designee? A. No. a. You don't have actual authority to make the decision? A. No. Only to recommend. Employer counsel submitted that in a grievance under article 55(1) the legal and evidentiary burden is upon the union, and relies on Re Mailloux 87/88 (M.G Picher) While we agree with that proposition, in our view the union s onus does not go so far as to require it to call , ( ,,~\ 4 evidence on how the employer went about making the decision. In Re Mailloux at pp. 17 18 the Board described the nature of the onus on the grievor as follows. In a case such as this the legal or evidentiary burden is upon the Union. It must establish, on the balance of probabilities, that the Employer has failed to exercise its discretion in a manner that is untainted by arbitrariness, bad faith or discrimination. In considering that question a board of arbitration must not lose sight of the fact that the grievor is the party with the best first-hand knowledge 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 managerial decision maker In contrast, it is the employer who has the exclusive knowledge of how the decision to deny an employee s request for leave was denied. It is therefore incumbent upon it to lead evidence in that regard. The employer here did call evidence to establish how the grievor's request was dealt with. What that evidence shows is that the decision was taken by someone who is neither the Deputy Minister nor his designee. In Ms. Lowrey's description of the process she followed, from the time she received the grievor's request to the time she made the decision, prepared and signed the letter of rejection, there was no mention whatsoever of the Director who was the Deputy Minister's designee. She candidly admitted that she made the actual decision. L If the parties intended that any supervisor assigned by the employer may exercise the discretion under article 55(1) it would be reasonable to expect broad language such as 'the employer may" In contrast, they have deliberately limited the exercise of the discretion to either the Deputy Minister or his designee. There is no evidence that either was in any way involved with regard to the grievor's request. J ii.f 5 This is not to suggest that the Deputy Minister or his designee must personally and exclusively deal with every employee s request under article 55(1) He may rely on information gathered by someone assigned by him, but he must ensure that all relevant information is made available to him. Nor is there anything to preclude the Deputy Minister or his designee relying on a recommendation by someone else. However he must consider all of the information presented together with the recommendation and decide whethef--he should accept that recommendation. In the present case, the decision was made by Ms. Lowrey and she signed the letter to the grievor There is nothing to suggest that the designee had any input or involvement whatsoever In the circumstances we find that there has been no proper exercise of the discretion conferred by article 55(1). For those reasons the grievance is allowed. We remain seized in the event the parties have any dispute as to the remedy which should flow from our finding. Datedthis3rddayof March, 1991 at Torbnto, Ontario ~~ N. Dissanaya e Vice-Chairperson tl/( UJ ~ P Klym M~I ~__ r ~--- . \L----- D Montrose M b (addendum attached) em er