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Home My WebLink About1992-3715.Dyer.93-10-12 'k- ~ - ---- ~, ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO '>r GRIEVANCE COMMISSION DE Jill ., , SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREE:T WEEST SUITE: 2100, TORONTO, ONTARIO, M5G lZ8 TE:LEPHONEITELI~PHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) M5G lZ8 FACSIMILE ITELECOPIE (416) 326-1396 3715/92 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Dyer) Grievor \ - and - The Crown in Right of Ontario (Ministry of Health) Employer BEFORE G Charney Vice-Chairperson FOR THE J storey GRIEVOR Grievance Officer Ontario Public Service Employees Union FOR.THE P Toop EMPLOYER Employee Relations\bffic~r Management Board Secretariat HEARING September 27, 1993 l - . ~ -.- 1 i I '~ ( ~ AWARD The facts in this case are as follows. The grievor, Dr. Anne Dyer, a psychologist at Whitby psychiatric Hospital, requested a leave under Article 49.2 of the collective agreement to attend a funeral, which was granted. 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, stepson, stepdaughter, brother, sister, son-in-law, daughter-in-law, sister-in-law, brother-in- law, grandparent, grandchild, ward or guardian. 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 I relative listed in sections 49.1 and 49.2 above if the location of the funeral is greater than eight hundred kilometers (800 km) from the employee's residence. The funeral ended at around 4:00 p.m. and together with her father, she attended a family gathering. During this time it started to snow and the grievor made a decision that the roads were too dangerous/for her to drive that night In the morning, she drove her father from Woodstock, the place of the funeral, to orillia/ where her father lived. Her father has bad eyesight and is not capable of driving himself or of taking public transportation u She then continued on to Whitby where she works. v ,_........- ~~ I ; As a result, she missed six hours work and applies for compassionate leave for that six hours under Article 55.1 of the collective agreement. ARTICLE 55 - SPECIAL & 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 I year upon special or compassionate grounds. Her immediate supervisor first interviewed her and recommended that she be granted the leave. It, was then handed to Mr. Sumner who then passed it on to Mr Ballantyne who is the final decision maker under 55.1 of the Act. The leave was turned down. The employer turned the lea~e down for a number of reasons. 1) The Employer said that if a compassionate leave is granted in conjunction with a leave under 49 it has to be for extraordinary circumstances not the usual circumstances for which leave is granted because that is, part of their policy. 2) That in all the circumstances in this case, namely that the roads were passable the night before and she could have driven them, and secondly, she could have come right to work the following \ morning, they would not grant compassionate leave. The employer additionally argued that if they granted the compassionate leave, she would be better off than an employee under 49.3 who had to travel more than 800 kilometres to a funeral who would then only be granted a day off without pay The employer I s legal position is that the decision maker considered all the facts and the absence of a finding by this board that his decision was arbitrary, discriminatory or in bad faith, the case law supports the proposition that the board should not I ~ ~-< _._~'.'"'P"-_ ! 1 ~ ~., r interfere with the employer's decision I The u~ion's position is that in similar circumstances, namely driving ) neighbour, her father to the funeral of a this same decision maker, in considering all the facts, granted her a leave, ( and in this case refused her a leave, which could only be as a result of a knee-jerk policy reaction to not granting leaves in connection with bereavement leave. Therefore, his decision is arbitrary, and as a result is reviewable by the board. It should be pointed out that in other cases cited to the board in similar circumstances, Mr. Ballantyne was found to have considered all of the facts including a case where there was a bereavement leave followed by a request for a compassionate leave. The union cites a number of cases that make it clear that the decisions cannot be arbitrary and that the decision maker must consider relevant facts. I agree that proposition is not be doubted. The employer cited the case of OPSEU (Dennis F. Mailloux) and The Crown in Riqht of Ontario (Ministry of Correctional Services (Picher), who says on pages 16 and 17, That concern is prompted in part by the union in this case, the thrust of which is that in a grievance of this J kind the burden is upon the employer to establish that it has conducted a full investigation, has considered all relevant material, and has exercised his discretion in keeping with the standards that govern the decision of persons exercising statutory powers of decision. In our view; the approach urged upon this board by the union risks unduly judicializing decision making in the day to day management of the employer's operations. Acceptance of the union's approach would be perilously tantamount to the requiring the employer to conduct an inquiry, on quasi jUdicial lines, every time a request is made by an employee which requires the exercise of the employer's discretion. The consequence of such an L - "'t -~ --- ~-- l'-"'~ "r"'"".....--- ~ -, -- ': - ~~. p 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 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 or manager fail to conduct a SUfficiently thorough investigation, asked himself or hers~lf the i wrong question or misdirected himself or herself in some material way, to borrow the well known phraseology of administrative law, ris~s converting a collective agreement into an instrument for management by arbitrators. In our view such broad powers of review should not be foupd unless they are supported by the ( clear terms of the collective agreement. f I agree with the views above. In result, I find that management made a decision that, though I do not necessarily agree with, is not one which I can legi timately review. I Allor most of the relevant factors were considered and the decision maker decided not to grant compassionate leave in part no doubt because compassionate leave will not easily be granted in conjunction with bereavement leave and that though the situation might have attracted a compassionate leave in other circumstances, it is not a situation in which management wished to exercise its discretion in favour of the grievor. In result then, the grievance is dismissed. j DATED at Toronto this 121: h day of octobe~;/. ~W~ Gerald J. Charney, Vice-Chaipperson,