HomeMy WebLinkAbout2002-2321.Perretta.03-12-03 Decision
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GSB#2002-2321
UNION#2002-0202-00 14
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontano PublIc ServIce Employees Umon
(Perretta) Grievor
- and -
The Crown In RIght of Ontano
(Mimstry of FInance) Employer
BEFORE Jules Bloch Vice-Chair
FOR THE UNION Mark Barclay
Gnevance Officer
Ontano PublIc ServIce Employees Umon
FOR THE EMPLOYER Helen Ecker
Labour RelatIOns Consultant
Mimstry of FInance
HEARING July 28 2003
2
DECISION
1 ThIS matter was lIsted for heanng In Toronto at the Gnevance Settlement Board (GSB) on
July 28 2003 The partIes' entered Into mInutes of settlement and agreed to a process
whereby I would determIne thIS matter by way of agreed statement of fact ( Schedule" A"
attached) and the partIes' submIssIOns
2 On November 10 2003 I receIved the last of the partIes submIssIOns
3 Mr Joseph Perretta, the gnevor hereIn, IS employed by the Mimstry of FInance as a Tax
AudItor 2 He requested a half day of specIal and compassIOnate leave on or about
November 19 2002 In order to attend a medIcal appoIntment for hIS seven year old daughter
on December 4 2002 The request was demed and he therefore attended the medIcal
appoIntment on a vacatIOn day The gnevance was launched on November 22, 2002
4 The partIes agree that there IS a four-part framework to determIne each request's elIgIbIlIty
for specIal and compassIOnate leave and the test IS reproduced below'
1 The decIsIOn must be made In good faith.
2 There must be a genUIne exerCIse of dIscretIOnary power as opposed to
ngId polIcy adherence
3 ConsIderatIOn must be gIven to the ments of the IndIVIdual decIsIOn under
reVI ew
4 All relevant facts must be consIdered and, conversely Irrelevant
consIderatIOn must be rejected.
5 OPSEU asserts that the employer faIled to explaIn to the gnevor why hIS request was demed.
OPSEU further submIts that the employer faIled to follow ItS own procedure by not applYIng
the four fold test. In partIcular OPSEU claims, that the employer dId not explaIn why It
would be unreasonable to allow Mr Perretta paid tIme, pursuant to the specIal and
compassIOnate leave provIsIOn, to attend the medIcal appoIntment. In OPSEU's VIew the
employer never explaIned any operatIOnal reason to deny the leave
6 The employer asserts that Mr Miksza made hIS decIsIOn based on the cntena lIsted above
Mr Miksza demed the specIal and compassIOnate leave based on the fact that the
appoIntment "was medIcal, regular recurnng, non-emergency not Isolated, scheduled wIth
advance notIce and was for a pre-exIstIng medIcal condItIOn"
7 The only fact In dIspute between the partIes IS whether or not thIS medIcal appoIntment was a
recurnng appoIntment wIth a specIalIst for a pre-exIstIng condItIOn. OPSEU pOSItS In ItS
reply bnef that the appoIntment was not a recurnng one ThIS IS ObvIOusly an Important fact;
however I can not take thIS fact Into account as Mr Perretta dId not assert that the
appoIntment was of the non recurnng type at the tIme Mr Miksza demed the specIal and
compassIonate leave
8 The fact that thIS was a non- recurrIng medIcal appoIntment wIth a specIalIst In a context
where the appoIntment could not be changed, the chIld could not attend alone, and the
3
employee dId not have any other leave entItlement, lIke vacatIOn or MCO days, mIght very
well be the basIs for a posItIve deCISIOn by the employer However those are not the facts
before me
9 ThIS case IS not about beIng demed the tIme to attend the appoIntment, as Mr Perretta was
allowed to use a vacatIOn day to do so ThIS case IS about the CIrcumstances and cntena by
whIch Mr Perretta can access the specIal and compassIOnate leave polIcy
10 The employer must reVIew the facts that the requestIng employee proffers and then make a
decIsIOn on those facts In Mr Perretta's case, he IS the father of a chIld wIth a senous pre-
eXIstIng medIcal condItIOn and thus hIS requests for specIal and compassIOnate leave must be
assessed In that context. ObvIOusly the employer when reVIeWIng the request cannot grant
each and everyone ofMr Perretta's requests as the leave only allows for a maXImum of three
paid leave days In a calender year
11 The employer In thIS case places great Importance on whether the appoIntment IS recurrIng. I
assume that the employer was not prepared to grant specIal and compassIOnate leave for each
and every ofMr Perretta's appoIntment requests I take the employers assertIOns to suggest
that In the context of a pre-exIstIng medIcal condItIOn, where the employee wIll reqUIre tIme
off to attend many appoIntments wIth hIS daughter leave of the nature descnbed above
mIght be granted for appoIntments that are not of the regular reCUrrIng vanety
12 It IS not my role to SubstItute my VIew for that of management or enter Into an assessment of
the correctness ofMr Miksza decIsIOn even If! mIght have come to a dIfferent conclusIOn.
(see OPSEU (Thurman) and Mimstry of Health and Long Term Care GSB #0698/01
(Johnston) In thIS case, the employer dId not see the request as extraordInary nor as a result
of exceptIOnal CIrcumstances In decIdIng that the gnevor's request for specIal and
compassIOnate leave should be demed, Mr Miksza relIed on the facts that the appoIntment
was "medIcal, regular recurrIng, non-emergency not Isolated, scheduled wIth advance
notIce, and was for a pre-exIstIng medIcal condItIOn" In the context of Mr Perretta's overall
sItuatIOn, It was reasonable for the employer to deny the specIal and compassIOnate leave
ThIS demalIs partIcularly appropnate In the CIrcumstances descnbed above where the
employee could rely on other collectIve agreement entItlements such as vacatIOn days and
MCO days
13 For the reasons stated above thIS gnevance IS dIsmIssed.
Dated In Toronto thIS 3rd day of December 2003
4
SCHEDULE "A "
Ministry of Finance
Joseph Perretta
Denial of Special and Compassionate Leave
Agreed Statement of Facts
1 Mr Perretta IS employed by the Mimstry of Finance as a Tax AudItor 2
2 Mr Perretta has been a member of the Ontano PublIc ServIce SInce September 1998
3 The medIcal appoIntment for Mr Perretta's daughter wIth NeurologIst Dr Meany was
scheduled for December 4 2002 by McMaster hospItal on November 19 2002
4 Mr Perretta requested 1Iz day SpecIal and CompassIOnate Leave to attend the medIcal
appoIntment wIth hIS daughter on or about November 19 2002
5 Mr Perretta's 7-year-old daughter may be autIstIC She has been dIagnosed wIth ADD
and HDD and reqUIres an adult custodIan for any appoIntments
6 The tnp from Mr Perretta's resIdence IS more than 60 kIlometers from McMaster
hospItal
7 Mr Perretta has stated that the appoIntment could not be cancelled OWIng to the
senousness of the medIcal condItIOn beIng revIewed. The appoIntment IS scheduled at
the avaIlabIlIty of the specIalIst.
8 Mr Perretta's ImmedIate Manager recommended to the Semor Manager demal of the
request. The Semor Manager demed the request for specIal and compassIOnate leave
(ArtIcle 49 of the collectIve agreement) All specIal and compassIOnate leave requests
are made folloWIng the Human Resources Department schedule for delegatIOn, gIVIng
responsIbIlIty for the decIsIOn to the SMG 1 level
9 A meetIng was held between November 19th 2002 and November 21st, 2002 between
Mr Perretta and hIS manager Hugo Fennema In order to gaIn further InsIght Into the
nature of the specIal and compassIOnate leave request.
10 In the attached memo dated November 21 2002 MartIn Miksza Informed Mr Perretta
that hIS request for leave had been demed.
11 Mr Perretta's gnevance was filed November 22,2002 He attended the medIcal
appoIntment after beIng granted vacatIOn leave