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HomeMy WebLinkAbout2015-0558.Kolmann.18-09-28 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB# 2015-0558 UNION# 2015-0368-0177 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Kolmann) Union - and - The Crown in Right of Ontario (The Ministry of Community Safety and Correctional Services) Employer BEFORE Randi H. Abramsky Arbitrator FOR THE UNION Richard Blair Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Peter Dailleboust Treasury Board Secretariat Legal Services Branch Senior Counsel HEARING September 18, 2018 - 2 - Decision [1] This grievance concerns the Employer’s denial of the Grievor’s request for special and compassionate leave under Article 49 of the collective agreement. Article 49 provides: ARTICLE 49 – SPECIAL AND COMPASSIONATE LEAVE 49.1. A Deputy Minister or his or her 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. 49.2. The granting of leave under this article shall not be dependent upon or charged against accumulated credits. Facts [2] No viva voce evidence was presented by the parties. Instead, documents were introduced and the parties proceeded to argument. [3] According to the Union, on Thursday, October 23, 2014, the Grievor heard loud noises coming from her car and experienced a “wobbly” steering wheel. She was advised that the car should be repaired immediately. [4] The following day, Friday, October 24, 2014, the Grievor did not attend work. She had been scheduled for a shift, from 6:00 a.m. to 2:00 p.m. Instead, she drove from her home in Lindsay to Peterborough, where she brought her car to Connelly’s Minute Muffler shop. This is a distance of approximately 41 kilometres. She drove slowly and her daughter, in her own vehicle, followed behind to ensure that the Grievor safely made it to the repair shop. The car was in the shop from approximately 9:00 a.m to 3:00 p.m. The “wobbly” steering wheel was not repaired at that time. She then drove home in the car – another 41 kilometres. [5] The following day, the Grievor drove her car to the Canadian Tire store in Lindsay, where the right wheel bearing was repaired which addressed the steering issue. Receipts provided by the Grievor confirm the repairs done on the Friday and Saturday. [6] On Monday, October 27, 2014, the Grievor submitted a form to request special and compassionate leave for October 24, 2014 due to the required repairs to her car. Her request states: I was absent on Friday 24 October 2014 for my 0600 -1400 hr shift. My car broke and I had to get it repaired. My muffler and right bearing broke. I would like to request the use of a special compassionate discretionary paid leave for this date. Attached enclosed are repair bills. [7] On November 3, 2014, Acting Deputy Superintendent of Operations Jarret Merriam requested that the Grievor provide him with “more information with regard - 3 - to your request for special leave. Did these repairs prevent the vehicle from being driven? What other methods of transportation were considered?” [8] On November 4, 2014, the Grievor responded, as follows: Good Morning Jarret, In reply to your requested information regarding my request for special leave. 1. Did these repairs prevent the vehicle from being driven? Yes. If the repairs were not done the damage could be worse, and even cause danger to life and limb if driven. 2. What other methods of transportation were considered? I had considered many other methods of transportation, but then the repairs would not have gotten done when needed. There was public transit, but their schedule does not meet my work schedule and I do not think it would get me to the workplace. There was taxi service but that would be too costly and I could not afford to take a taxi daily to work. Most importantly is that none of these methods would fit with my disability’s medical need and the comfort of my modified vehicle. [9] On the same date, Deputy Superintendent Merriam denied the Grievor’s special leave request. The denial on the request form states: Receipts show the car was able to be driven to Peterborough for repair on the date of requested leave. Alternate transportation available but not used. [10] The Grievor was not satisfied with the Employer’s decision, and on November 5, 2014, wrote to Deputy Superintendent Merriam, asking to know the basis of his decision. He responded that the request “does not meet the criteria for special leave.” Some additional email exchanges followed. The Grievor was still not satisfied, and subsequently filed the grievance at issue in this matter. Reasons for Decision [11] In Re Ministry of Health and Long-Term Care and OPSEU (Thurman), GSB 0698/01 (Johnston), at pp.8-9, the scope of the GSB’s review under Section 49, was clearly set out as follows: [T]he employer must make a decision in good faith, free from arbitrariness and discrimination. The employer must exercise its discretion in a reasonable manner having regard to the individual merits of each case and not simply resort to rigid application of policy. An effort must be made to obtain all the relevant facts prior to making a decision and management must endeavor to act consistently in similar cases. - 4 - In considering the decision of management, the appropriate standard of review to be applied by an arbitrator to the decision making process is reasonableness. An arbitrator should consider the reasonableness of the process that led up to the decision which was made by management. It is not my role to substitute my views for that of management or enter into an assessment of the correctness of the decision even if I might have come to a different conclusion… [12] In this case, the evidence establishes that the Grievor’s car was not “broken down” on October 24. It did need repairs, but it was driveable. In fact, the Grievor drove it for more than 90 kilometres round trip from Lindsay to Peterborough, with the right wheel bearing still not fixed. Consequently, her assertion that the required repairs prevented the car from being driven and could worsen the damage “and even cause danger to life and limb if driven” was incorrect. She drove her car a far longer distance than she would have driven it to work. The repair receipt from the muffler shop in Peterborough demonstrates that the car was driven a considerable distance on October 24. [13] Although this was not known to the Employer at the time, as it was mentioned only at the hearing, the fact that her daughter followed her as she slowly drove to Peterborough reinforces the Employer’s conclusion that the Grievor had alternate modes of transportation to get to work. When asked about this by the Deputy Superintendent, the Grievor only listed public transportation or a taxi as potential alternatives. She did not mention the possibility of a ride from her daughter. [14] It is also significant that not all of the repairs were done on October 24. The wheel bearing was repaired on Saturday, October 25. No explanation was provided as to why all of the repairs could not have been done either after work on October 24 or on Saturday, October 25. [15] The Employer accepted the Grievor’s absence on October 24 to take care of her car repairs. The issue here is whether the Employer’s denial of her request for special and compassionate paid leave for the day was reasonable. Under the specific facts here, I conclude that the decision was reasonable. The Employer turned its mind to the request, sought out relevant additional information, and considered the specific facts. [16] Car repair issues may lead to a situation where special and compassionate leave is granted. An example of this is contained in the GSB decision cited above. It mentions a situation where the grievor’s car had been broken into, which she discovered on her way to work. It was a situation she could not have anticipated and she was shaken and upset by the break in. She had to cancel her credit cards, deal with the police and her insurance company. [17] That is an entirely different situation than here. Here, the Grievor knew in advance that her car needed repair. It was driveable. She was able to drive it over 40 kilometres to a muffler shop, and drive it back, without repairing the wheel bearing. She completed the repairs on Saturday. She could have found an alternate way to work, and still have repaired her car. - 5 - [18] There is no evidence that the decision was not made in good faith, was arbitrary or discriminatory. The employer exercised its discretion in a reasonable manner having regard to the individual merits of the case. It did not resort to a rigid application of policy. An effort was made to obtain all the relevant facts prior to making the decision. There is no evidence that the Employer did not act consistently with other cases. While the Union asserts that the Employer did not provide any examples where a request for special and compassionate leave to repair a car was denied, the onus was on the Union to establish that the Employer allowed similar claims but failed to allow it here. No such evidence was submitted. [19] I am satisfied that the Employer’s decision was based on the relevant information and that the decision-making process was reasonable. [20] For all of the above reasons, this grievance is dismissed. Dated at Toronto, Ontario this 28th day of September, 2018. “Randi H. Abramsky” Randi H. Abramsky, Arbitrator