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HomeMy WebLinkAbout1992-1260.Johnston.93-01-07 .\1; '" ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 'f 1111 GRIEVANCE COMMISSION DE , SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO, M5G IZ8 TELEPHONE/TELEPHONE (476) 326-7388 180 RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) M5G lZ8 FACSIMILEITELE~COPIE (416) 326-1396 1260/92 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN: OPSEU (Johnston) Grievor - and - The Crown in Right of ontario ontario science Centre (Ministry of Culture & Communications) Employer Before: J.H. Devlin, Vice Chairperson For the Grievor. G. Adams Grievance Officer ontario Public Service Employees Union For the Employer: Edward Johnson Staff Relations Officer Management Board Secretariat Hearing: December 16, 1992 ~ ( y '1 The grievance which was filed by Norman Johnston involves a claim for special and compassionate leave under article 55.1. This article provides that a Deputy Minister or his designee may grant a leave of absence with pay for not more than 3 days each year upon special or compassionate grounds. In this case, the Grievor initially utilized vacation credits and subsequently sought special leave for 3 days surrounding the birth of his child. The child was delivered by Caesarean section on January 25, 1992, approximately 12 days after the expected due date In fact, January 25th was the Grievor's day off and he sought special leave for the day preceding the birth on which an unsuccessful attempt was made to induce labour. The Grievor also sought special leave for January 30th and 31st, the first of the two days being the date of his wife's release from hospital. On both of these days, the Grievor assisted with the care of the child as his wife had been advised by her physician to rest. The Employer granted special leave on January 24th but denied the request for leave on January 30th and 31st. In this regard, Deborah Powell, the Deputy Minister's designee, indicated that while one day's leave would be granted, article 55.1 was intended to provide leave with pay for absences "due to ~~ ,..i " 2 unforeseen circumstances". In Ms. Powell's view, the Grievor's situation could not be characterized in that light. While it is not for this Board to assess the correctness of the Employer's decision, the exercise of management's discretion under Article 55.1 is subject to certain limitations: see OPSEU (Kuyntjes) and the Crown in Right of ontario (Ministry of Transportation and Communications) GSB # 513/84. These include the requirement that the Employer act in good faith and without discrimination and that there be a genuine exercise of discretion in which management turns its mind to the merits of the individual request. Further, in considering the 'request for leave, all relevant factors must be considered and all extraneous factors rejected. In this case, I find that management did not exercise its discretion in accordance with the requirements set out, as in denying the Grievor's request for leave on January 30th and 31st, the Employer treated the existence of unforeseen circumstances as a pre-requisite for entitlement to leave. Article 55.1, however, provides that leave may be granted "upon special or compassionate grounds" and while unforeseen circumstances are one of a number of factors which might be taken into account, the existence of such circumstances is not essential in every case. Accordingly, I find that the Employer improperly fettered its discretion and '.. . ~ " 3 failed to take into account all relevant factors in considering the Grievor's request for leave. In my view, it would not be practical, at this point, to remit the matter to the ~mployer for reconsideration. However, taking into account the circumstances surrounding the delivery of the 'Grievor's child and the fact that leave was requested to enable the Grievor to assist with the care of the child while his wife recovered from surgery, I believe that it would have been reasonable to grant his request. In the result, the grievance is allowed and I direct that the Grievor be granted special and compassionate leave for January 30th and 31st and that the vacation credits utilized on those days be reinstated As there was also some dispute as to whether the vacation credit utilized on January 24th has been reinstated, I shall remain seized to deal with this issue as well as for purposes of implementation of this award. DATED AT TORONTO, this 7th day of January, 1993. '1 (UL k 'tJQ ~ -,L Vice Chairperson