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HomeMy WebLinkAbout1992-3726.Branton&Gotthardt.94-04-07 ~ BIll ( I ;"'.'.'.'.!' ....'.. ONTARIO EMPLOYES DE LA COURONNE ,..,... ... CROWN EMPLOYEES DEL 'ONTARIO ~ - .'. -, ' 111.............(1... GRIEVANCE Cp. MM~S.SION DE ',';' ....... . SETTLEMENT REGlEMENT !', :i. ., BOARD DES GRIEfS 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO, M5G IZ8 TELEPHONEITEU;PHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100 TOAONTO (ONTARIO) M5G rZ8 FACSIMILEITELECOPIE (4/6) 326-1395 3726/92, 3727/92 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Branton/Gotthardt et al) Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer BEFORE: A. Barrett Vice-Chairperson I. Thomson Member F. Collict Member FOR THE L. Yearwood GRIEVOR Grievance Officer Ontario Public Service Employees Union FOR THE M. Mously EMPLOYER Grievance Administration Officer Ministry of Correctional Services BEARING January 24, 1994 . ( ( DEe I S ION ~ These eight grievances concern the refusal of the employer to grant special or compassionate leave to the grievors for December 11, 1992, when they all missed work due to the effects of a blizzard which struck the Durham Region the night before and continued all day on December 11th Five of the grievors work out of the Oshawa Probation and Parole Office They are Rita Gotthardt, Nancy Higgins, Theresa Huzar, Cicely Nelson and Grazia Sutherland Three of the grievors work out of the Pickering Probation and Parole Office They are Carol Branton, Steve Gyorffy and Wendy Woolcott. Mr Aubrey Appel is the Acting Area Manager for the Pickering office, and the Deputy Minister's designee who made the decision not to grant the leaves for his employees Ms Mary Stewart is the Area Manager for the Oshawa office, and the Deputy Minister's designee who denied the leaves for the Oshawa grievors Article 55 1 of the collective agreement simply states "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 II In deciding this matter, we are governed by the statement of principle as set out in Mailloux, GSB #87/88 (M Picher) , at pages 19-20: ( ( 2 ;:- II it is not the place of a board of arbitration to determine whether management's decision was 'correct' If the evidence discloses 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 II We received in evidence newspaper reports and testimony from all of the individual witnesses about the intensity and extent of the severe winter storm which blanketed the Durham Region with at least 24 centimetres of wet snow by 8 00 a m on December 11th, and a further 16 centimetres throughout the day Oshawa Transit pulled its buses off the street at 8 00 a m School boards cancelled their buses first thing in the morning, but kept schools open However, by mid-morning the boards officially closed all schools Durham College and General Motors closed down operations Snow ploughs were confined to the main streets, and subdivisions and rural areas were not ploughed until later that night or the following day The Town of Whitby kept its transit system operating, and tne GO buses continued to operate, although behind schedule Taxis were running on the main ploughed streets All of the grievors had certain things in common All were listening to radio reports about the storm that morning and heard about treacherous driving conditions and police advice to stay off the roads None lived on a ploughed street and all were accustomed to driving themselves to work in their cars All started shovelling their driveways in anticipation that their streets would be ploughed and they would be able to drive themselves to work Hope ( ( 3 faded as the hours went by with only more snow and no ploughs in sight In conducting their investigation into the leave requests, both decision-makers concluded that none of the grievors could have driven to work Both decision-makers made inquiries about public transit, GO buses and taxis Both consulted local maps to pin-point each grievor's location and then made a determination as to whether or not the grievors could "reasonably have utilized other methods of transportation to get to work" Mr Appel approved one out of four leave requests in his office, and Ms Stewart approved six out of 1'2 leave requests in hers All but one of the employees refused the leave grieved It is also to be noted that the Oshawa probation and Parole Office was closed at noon due to liability concerns of the Property Manager, although the Pickering office stayed open until later in the day In Oshawa, the Ministry of Revenue occupies a building directly across the street from the Probation and Parole Office and it closed at 10 30 a m An administrative decision was made not to dock pay or charge any other accumulated credits from those employees who did not appear for work that day This is the general context in which these grievances arose More specifically, each grievor had an individual story to tell " Ms Branton lives in a rural area 22 kilometers from work When she opened her garage door in the morning, the snow was up to -- ( ( 4 the headlights of her car Her driveway is 300 feet long, and she and her husband started to shovel but soon realized it was hopeless Ms Branton was three-months' pregnant with twins, involved in a high-risk pregnancy, and did not want to over-exert herself There is no public transit in her area, and the only way she could have made it to work was by taxi She anticipated a two- to-three-hour wait for a taxi and, as she cannot see the main road from her house, it would mean she would have to walk down to the end of her driveway and stand there for an indeterminate length of time waiting for a taxi Calling a taxi was problematic too Her hydro and phone lines were down At about 10 00 am, Ms Branton's husband hiked 10 or 15 minutes to Ms Branton's father's house where he was able to use the telephone to call his wife's office to say she would not be able to come in to work In reviewing Ms Branton's situation, Mr Appel felt that it would have been reasonable for Mr Branton to call a taxi from his father-in-law's house to meet his wife at the end of the driveway and take her to a GO bus to eventually get her to work Although we do not challenge Mr Appel's good faith and lack of discriminatory intention, we find it difficult to accept the reasonableness of his assumptions about the ability of Ms Branton to get to work that day First of all, we would be very surprised if a taxi was willing to go into a rural area on the day in question with so much in-town work available Secondly, we do not think it reasonab~e to expect a pregnant woman to trudge down to I I ( ( 1 5 the end of her driveway and stand there in a snow-storm waiting for a taxi that mayor may not appear Ms Branton should have been granted the leave Mr Gyorffy lives in Oshawa approximately 25 kilometers from work and about a 15-to-20-minute walk, in normal circumstances, to a main street upon which GO buses run Mr Gyorffy testified that when he realized he would not be able to get to work in his car, he fleetingly considered the GO bus or taxi options bu t did not think they were realistic He never uses these modes of I transportation and did not think now was the time to start Mr I 1 Appel felt that Mr Gyorffy was very close to a main street and should have walked there to catch a GO bus or taxi We agree that Mr Appel made a reasonable assumption about Mr. Gyorffy's ability to get to work that day and therefore the decision to deny him leave must be upheld Wendy Woolcott lives alone in a house in Oshawa 22 kilometers from work When she got up in the morning the snow was knee-deep, and she shovelled for about an hour before realizing that she simply was not going to get to the end of her driveway She heard " on the radio that Oshawa Transit had been shut down, and it was too long a walk to the GO train for that to be a viable alternative She testified that it never occurred to her to call a taxi She conceded that if she had thought of the taxi alternative, it would have been possible for her to walk to a main street to meet one, and that is what Mr Appel thought she reasonably should have done ( ( 6 In this case, we note that Ms Woolcott is fairly small in stature and appears to be in her 50's She shovelled wet, heavy snow for an hour before considering her other options We do not know how far she would have had to walk to a main street, but we know she was farther from one than Mr Gyorffy, who Mr Appel testified was the closest person to a main street We do not think it reasonable to expect a woman in Ms Woolcott's circumstances to undertake the physically-demanding exercise of a long walk through knee-deep heavy snow after having spent an hour shovelling that same snow She should have been granted the leave Rita Gotthardt works in the Oshawa office but lives on a crescent in a subdivision in Whitby some 10 kilometers from work She and her husband started shovelling their driveway very early on the day in question and finally got to the end of it before they realized that they would not be able to get out into the street Neighbours who had made it into the street had to be pushed back into their driveways Ms Gotthardt did not call the Whitby Transit to find out their schedules or routes She thought about a taxi, but did not have enough money to pay for one Ms Stewart testified that from her review of maps and knowledge of the subdivision, Ms Gotthardt could have walked to public transit where a combination of two buses would have taken her to work Ms Stewart testified, and her evidence was not refuted, that it would have required a 15- minute walk on a good day to get to the bus route Assuming that walking time would be at least doubled in the heavy snow, we find ( ( 7 Ms Stewart's assumption about the viability of Ms Gotthardt's options was reasonable. Certainly the walk would have been difficult, but it was doable in Ms Gotthardt's circumstances Nancy Higgins lives in Oshawa about five or six kilometers from her office She is a single mother who lives alone with her two children, ages 5 and 6 She shovelled out her whole driveway but found she could not get out into the roadway The vehicles that had made it out of their driveways were now stuck in the street Public transit was not working, but she was only about a five- minute walk, under normal circumstances, from a major intersection where she could have met up with a taxi That would have been a viable option for Ms Higgins if she did not have the children to consider She would have first had to walk the children to school, and she thought that walk for the children would not only be difficult but dangerous according to the radio information she heard about cars out of control on streets where they were running Another option for the children was to take them to a babysitter, but that too would have required a substantial walk to an unploughed subdivision In assessing Ms. Higgins' application for leave, Ms Stewart acknowledged that Ms. Higgins would have had to walk her children to school for safety reasons, but felt she could have done that, then walked to a major intersection to catch a taxi ( I 8 Of all the grievors, Ms Higgins seems to have put in the most time and effort in her attempts to get to work After one-and-a- half hours of shovelling, she phoned the office at 8 30 a m to say she would be late She went back to her snow shovelling and completed clearing the driveway At 1 30 pm, she telephoned the office to provide a status report, but there was no answer Her street was the first of all of the grievors' streets to be ploughed, at about 2 30 pm, but the ploughing threw up a three- foot wall of snow at the end of the driveway, which again had to be dug out At that point, Ms Higgins was ready to go to work, but of course the office was closed We do not find Ms Higgins' decision not to take her children to school an unreasonable one As we know, the schools were closed mid-morning, and it was not unreasonable for Ms Higgins to anticipate that, nor to determine that the walk to school for such small children in such deep snow could be dangerous She concentrated on her shovelling efforts in the expectation that her street would soon be ploughed, and it was ploughed relatively early compared with the other grievors' streets In all of the circumstances, we find that Ms Stewart's assessment of Ms Higgins' situation was not based on reasonable assumptions about the viability of Ms Higgins' options She should have been granted the leave Theresa Huzar, who lives in an Oshawa subdivision, was five- months' pregnant on December 11, 1992 When her husband had cleared . ( I . 9 only half the driveway after one-and-a-half hours of shovelling, Ms Huzar called in to work to say that she would be in as soon as her street was ploughed It was not ploughed until the following day In her case, Ms. Stewart determined that Ms Huzar should have telephoned a taxi to meet her on a main street, which would have been a IS-minute walk out of the subdivision, in good weather Ms Huzar testified that she tried to walk to that main intersection later that day to get milk from a local store, but found the walk too difficult and had to turn back We do not think it is reasonable to expect a woman who is five~months' pregnant to walk at least half-an-hour in wet snow in a snow storm to meet a taxi that may or may not arrive at some appointed hour This was not a reasonable or viable option for Ms Huzar and she should have been granted the leave Cicely Nelson lives in Pickering about 2S kilometers away from the Oshawa office She realized she would not be able to get out of her driveway or street, so called a taxi company at about 8 00 a m They said there would be approximately a three-hour wait and that they would only come to a main intersection Ms Nelson testified that it was a 25-to-30 minute walk to that intersection on a normal day, which would of course be a lot longer on this day She heard that the local buses were not running but that the GO buses were The walk to the GO bus route would have been a half hour on a good day, but they run only once every hour and they were behind schedule Even if Ms Nelson had embarked on the walk, she . ( ( 4 10 4 . would have no way of knowing how long she would have to wait for the bus If she happened to just miss one, there would be a further one-hour wait Ms Nelson also testified that she was suffering from a medical condition at the time that made her very weak, but the employer did not know that at the time Again we find it unreasonable for Ms Stewart to assume that Ms Nelson should have undertaken the long walk to the GO bus route where the buses run only hourly, and were not on schedule With respect to Ms Sutherland, when she saw that she could not drive to work, she telephoned Ms Stewart to say that she was taking a vacation day, and her request for vacation leave was granted About a week later, Ms Sutherland joined with the others and asked for special or compassionate leave for that day We find that the vacation leave was asked for, granted, and taken It was too late to convert that day into some other kind of leave retroactively Her request for leave was reasonably refused In general, we as a panel have difficulty with both decision- makers' assumptions that taxis would have arrived at specified times at main intersections to pick up people who had called them We heard no evidence. on this issue, because no one tried it, but in this panel's many years' combined experience of Canadian winters and taxi companies, we think the decision-makers' assumptions in this regard were overly optimistic Having said that, we want to make it clear that we do not impugn the motives or the good faith .. - ( ( . . 1 1 of the decision-makers Naturally they want to encourage employees to make a genuine and concerted effort to get to work in the inevitable winter storms that plague us all Special leaves should be reserved for very special cases What we have concluded, however, is that in the case of grievors Branton, Woolcott, Higgins, Huzar and Nelson, the decision-makers set the standard of "reasonable alternatives" too high, to the point where they were unreasonable in the particular circumstances Accordingly the grievances of Branton, Woolcott, Higgins, Huzar and Nelson are allowed and they should be compensated for the day off The grievances of Gyorffy, Gotthardt and Sutherland are dismissed Dated at Toronto this 7th day of Apri I, 1994 od:~~ A Barrett, Vice-Chairperson ~ _,_~ I, ,- ...-,. 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