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HomeMy WebLinkAbout1984-0513.Kuyntjes.85-04-09 \; '" VI"-''''"'V CROWN EMPLOYEES GRIEVANCE 1111 SETTLEMENT BOARD 180 DUNDAS STREET WEST. TORONTO. ONTARIO. M5G lZ8 - SUITE 2100 TELEPHONE' 416/598-0688 513/84 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Pieter B. Kuyntjes) Grievor - and - The Crown in Right of Ontario (Ministry of Transportation and Communications) Employer Before: R. L. Verity, Q.C. M. Perrin L. Foreman Vice Chairman Member Member For the Gri evor: M. Wysocki Grievance Officer Ontario Public Service Employees Union For the Employer: M. Fl e is hma n Law Officer Crown Law Office Civil Ministry of the Attorney General Hearing; December 4,1984 ,.. . l' .1'. - 2 - D E CIS ION This dispute concerns management's refusal to author- ize a special leave of absence as a result of the Grievor's failure to attend work on February 28, 1984 due to inclement weather conditions. The grievance filed on May 2, 1984 alleges that the Employer improperly deducted a vacation day from the Grievor's bank of credits for the day in question. The remedy sought was reinstatement of the vacation credit and payment for February 28, 1984 "as a discretionary day". Article 54 provides that the Employer has the discre- tionaryauthority to grant a special leave of absence with pay to an employee on an annual basis for period or periods not to exceed three days. The real issue in dispute is the extent of arbitral review of management's discretion. The relevant Article in the Collective Agreement reads as follows: "ARTICLE 54 - SPECIAL & COMPASSIONATE LEAVE 54.1 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. 54.2 The granting of leave under this Ar- ticle shall not be dependent upon or charged against accumulated credits." , , - 3 - The following facts are relevant. The Grievor is presently classified as "Technician 1 - Construction" and has worked for the Ministry for in excess of 10 years. Normally, he has his headquarters at Duff's Patrol Yard near Ancaster. As of February 1984 he was assigned to the Burlington Patrol Yard in the temporary winter assignment as Snow Plow Helper. The Grievor lives in Ancaster and is authorized to use his own motor vehicle to travel 18 miles from his home in Ancaster to the Burlington yard. At midnight on February 27, a moderately severe snow- storm occurred within a wide geographical area of Southwestern Ontario, including Burlington and Ancaster. The storm caused accumulations of snow and drifting snow, and continued unabated throughout the night of February 27 and during the day and evening hours of February 28. The Grievor worked his scheduled shift from 8:00 p.m. on February 27 until 4:30 a.m. on February 28, and in addition worked some 3 hours of overtime. He was scheduled to report for work ori February 28 at 8:00 p.m. At 6:45 p.m. 0n rebruary 28, the Grievor telephoned Duff's Corners Patrol Yard (approximately 2 miles from his res- idence) to enquire as to weather conditions. According to the Grievor's testimony, he was advised that road conditions " -' - 4 - then telephoned the Burlington Detachment of the Ontario Pro- vincial Police and was told that motorists should stay off the roads unless absolutely necessary. In addition, the Grievor testified that he made repeated attempts without success to clear drifting snow from his residence driveway. He also stated that the street in front of his residence had not been plowed. The Grievor then notified the Burlington Patrol Yard that he was unable to report for work due to weather condi- tions. Subsequently, the Grievor made the following entry on his time sheet (Resource Utilization Record Sheet): "February 28 - 855 code - Blizzard Roads Closed - Could not get in" On the evidence, it is clear that the Grievor assumed that he would be paid for his absence on the February 28 shift as had been the procedure followed during a major snowstorm in 1977. However, the Grievor found to the contrary when he re- viewed his quarterly status report in late April. Upon review of that document, he telephoned the Ministry's Head Office - 5 - Payroll Division and was advised that instructions had been received to charge the February 28 absence against his vacation credits. After discussions with the Supervisor failed to resolve the matter, the grievance was filed. The Ministry presented evidence primarily through OPP Constable William Lee which established that Highways 403 and the Q.E.W. from Ancaster to Burlington were indeed passable at all relevant times. Burlington District Personnel Officer Charles Malloy testified that of 12 employees scheduled to work on the afternoon and evening shift of February 28 at the Burlington Patrol Yard, only the Grievor and employee T. L. Brodnicki failed to report for work. Mr. Malloy testified that Brodnicki reported that the street in front of his Hamilton mountain home was blocked by snow, and that the request had been made by the employee to deduct the absence from his vacation credits. Similarly, Mr. Malloy testified that all eight ~mployees scheduled to work at Duff's Corners Patrol Yard had reported for work. In essence, the Employer's position was to the effect that the Grievor made insufficient efforts to report for the assigned shift. 7 - 6 - Deputy Minister Harold Gilbert set out Ministry poli- cy in a Memorandum dated January 31, 1977. Part of that Memor- andum reads as follows: "In the light of our experience on January 10 and again on January 28 and considering the variety of weather conditions which can occur on any given day across the Province, it is apparent that any decision with re- gard early closing and the treatment of employees as a result of storm caused lates and absences must be made locally in the light of conditions which exist. At the same time, it is quite apparent, in the light of comments, criticisms and even threats of grievances, that the treatment of employees must be seen as reasonable, fair and equitable where similar circum- stances exist. Whatever practice is adop- ted must encourage attendance and, at the same time, demonstrate an enlightened con- cern for employees' safety and should not be seen as favourable treatment for govern- ment employees as compared to employees in the private sector in the same locality. Therefore, "in future" any decision with regard early closing of offices or charges against credits for storm caused absences will be the responsibility of Regional Directors for all regional staff." ...Notwithstanding the fact that discretion will be vested in the above noted offi- cials, the following guidelines should be considered in the interests of equitable treatment in'similar circumstances: 1)... 2)... 3) Absences - where an employee arrives for work before noon and circumstances war- rant such consideration, no charge against credits will be made. Any absence of half or whole days should be charged, in the case of bargaining unit employees, against attendance credits, overtime cre- - 7 - dits for employees on Schedule 3 or 4 and not on Schedule 7, or vacation credits. For management employees, since there are no attendance credits against which to make a charge and the majority of management personnel do not have overtime credits, any charge should be made against Discretionary Leave under Section 80(1) of the Regula- tions. You are reminded that authorization for Discretionary Leave must be given in accordance with the list of delegated authorities and that such discretion is limited to three days in any year." The Grievor testified that he was unaware of the Ministry policy. On behalf of the Grievor, Ms. Wysocki argued that reasonable attempts had been made by the Grievor to report for work and that he had been prevented from doing so by circumstances beyond his control. It was argued that the Employer had the duty to exercise its discretion under Article 54 of the Collective Aqreement in a reasonable fashion without rJiscrimination. The thrust of the Union's argument was that the Employer failed to exercise its discretion reasonably, primarily as a result of its failure to consider the Grievor's personal circumstances. In addition, Ms. Wysocki contended that the Employer has no unilateral right to deduct earned credits accumulated by an employee. - 8 - Mr. Fleishman, Counsel for the Employer, relied upon the Judgment of the Ontario Court of Appeal in Re Metropolitan Toronto Board of Commissioners of Police and Metropolitan Toronto Police Association, et al (1981), 124 D.L.R. (3d) 684, in support of the proposition that the exercise of management's discretion is not subject to arbitral review. Alternatively, it was contended that, in the instant grievance, management did exercise its discretion in a reasonable fashion. In a determination of this matter, the Board adopts the rationale of Arbitrator Swan in Re Meadow Park Nursing Home and Service Employees International Union, Local 220 (1983), 9 L.A.C. (3d) 137 at pp 139 - 143. The Swan Award considered the extent of arbitral review of an expressly conferred management discretion in the light of perceived contradictions in both arbitral and judicial precedent. Arbitrator Swan's rationale merits repetition: liAs is well known, arbitrators were beginn- ing to develop a 'doctrine of fairness' based upon the administrative law principle of the same name, which appears first to have been applied to an employment rela- tionship by the Supreme Court of Canada in Re Nicholson and Haldimand-Norfolk Regional Board of Com'rs of Police (1978),88 D.L.R. (3d) 671, 78 C.L.L.C. para. 14, 181, [1979] 1 S.C.R. 311. In Re Municipality of - 9 - Metropolitan Toronto and Toronto Civic Employees' Union, Local 43 et ale (1977), 79 D.L.R. (3d) 249, 16 O.R. (2d) 730, the Ontario Divisional Court appears to have approved the notion that there is to be applied to a collective agreement a duty of fair administration. While it may be that the language chosen by the court in that case was broader than it needed to be, many observers of the labour relations scene appear to have forgotten that the role of a court on an application for judicial review of an arbitration award is not to create principles of general law, nor to say whether an arbitrator is right or wrong in an interpretation of a collective agree- ment, but merely to decide whether the interpretation given to the collective agreement language is one which it can reasonably bear. Once the arbitration award has met that test, the court's juris- diction is exhausted, and any other com- ments which it may make, however helpful in understanding the rationale for that deter- mination, do not constitute binding prin- ciples of law to be followed slavishly by arbitrators. The Ontario Court of Appeal appears to have applied exactly this principle in Re Metro- politan Toronto Board of Com'rs of Police and Metropolitan Toronto Police Assoc. et ale (1981), 124 D.L.R. (3d) 684, 81 C.L.L.C. para. 14,116,33 O.R. (2d) 476 [leave to appeal refused D.L.R. loco cit., O.R. loc, cit, (S.C.C.)]. In that case, an arbitrator had considered herself bound by the observations of the Divisional Court in the Metropolitan Toronto case, surpa, and had concluded that the management rights clause of the collective agreement had to be exercised fairly and without discrimin- ation. The Court of Appeal said [po 687]: .' - 10- If...the majority of the Divisional Court in the [Metropolitan Toronto] case were purporting to lay down a general rule, that all decisions of management pursuant to a management rights clause which do not contravene any other provi- sions of the agreement must stand the further test whether in the opinion of an arbitrator they were made fairly and without discrimination, then with re- spect we do not agree. The decisions relied upon by Weatherston J. in the [Metropolitan Toronto] case, as that learned Judge rightly pointed out, dealt with procedural fairness in proceedings before domestic and statutory bodies; they did not deal with the interpreta- tion of collective agreements. In our opinion, the management rights clause gives management the exclusive right to determine how it shall exercise the powers conferred on it by that clause, unless those powers are otherwise cir- cumscribed by express provisions of the collective agreement. The power to challenge a decision of management must be found in some provision of the col- lective agreement.' What the Metropolitan Toronto Police deci- sion decides, in our respectful view, is simply that arbitrators exceed their juris- diction if they purport to establish general principles for the administration of collec- tive agreements divorced from the language negotiated by the parties in the matter be- fore them, and that they commit errors in law if they purport to treat a judgment of the courts, refusing to interfere with an arbitration board on the basis that it did not give collective agreement language a meaning which it could not reasonably bear, as binding expositions of the general law. Unfortunately, many arbitrators, and indeed some courts, have turned the rationale of - 11- Metropolitan Toronto Police upside down, and have taken it instead to mean that there can never been implied into a collective agree- ment a duty to exercise a management func- tion or prerogative in accordance with tests of fairness or reasonableness. The Metro- politan Toronto Police case does not and cannot alter the law of contractual inter- pretation; every allegation that an employer is in breach of the collective agreement must be considered individually, against the language which the parties themselves nego- tiated, and in accordance with the well- known canons of construction. If, based on the general law of implied terms in con- tracts, as the general law may be adapted to the particular case of collective agree- ments, the implication arises that a parti- cular management function must be exercised in a certain way, then an arbitrator is bound to make that implication, since it arises from the collective agreement from which the arbitrator draws his or her juris- diction and which constitutes the entire bargaining between the parties. To whatever extent such cases as Re United Glass & Ceramic Workers of North America et ale and Libbey-St. Clair Inc. et al (1981), 125 D.L.R. (3d) 702, 33 O.R. (2d) 760 (Ont. Div. Ct.) appears to suggest some other con- clusion, it would be our respectful sub- mission that they should not be followed. ...The concept of a discretionary power is not unknown to the law, and the administra- tive law jurisprudence is full of cases on the restrictions which the law places on someone to whom a power to make a discre- tionary decision has been confided. Mullan, Administrative Law (Carswell, 1973) de- scribes the legal position at para. 107 as follows: Discretion exists every time a decision- maker deriving his authority from statute has a choice between two or more courses of action. Where the courts will not usually substitute their view as to how such a discretion is to be exercised, they will ensure that the decision-maker uses his authority within certain limits. First, it is necessary that - 12- there be an absence of bad faith or fraud in the authority making the decision. In addition, there must be a genuine as opposed to a purported use of discretion- ary power. This means that the decision-maker charged with the taking of the decision should personally exercise the authority conferred upon him and should neither act under dictation from some person not charged with the exercise of the discretion nor delegate the dis- cretionary power to another. Addition- ally, the discretion should be exercised in relation to each individual matter coming before the decision-maker and should not be automatically determined or even fettered by reason of a rigid policy laid down in advance. Of course, the laying down of general guidelines and principles for future action by a statutory decision-maker is not objec- tionable so long as he still considers the merits of each individual matter for decision in the light of those guidelines and principles and is prepared to admit of exceptions to the general policy in appropriate cases. Continuing in para. 108 the learned author states: Beyond the requirements of good faith and a genuine exercise of discretionary powers, the courts do have a further role in ensuring that the decision-making authority keeps within the proper scope of the empowering statute while perform- ing his functions. Discretionary power must not be used for improper purpose. Extraneous factors or irrelevant consid- erations must not be taken into account. Conversely, all relevant factors must be taken into account. And again in para. 109: Even if the decision-maker in question takes into account all relevant factors and does not take into account any extra- - 13 - neous considerations, he may still be subject to review on the basis that the decision or conclusion ultimately reached was so unreasonable that no reasonable authority could ever have come to it. The ability of the courts to review deci- sions on this basis of unreasonableness is not, however, frequently utilized since the courts generally express reluc- tance in interfering with the actual merits of discretionary decisions. It will be observed that these principles arise from the general law, but that they have been largely created by a process of statutory interpretation. Similarly, arbitrators have applied similar principles as a part of the process of collective agreement interpretation where, having regard to all of the language used by the parties, it is impossible to conclude that the conferral of a certain decision-making authority on management could have been intended to confer an untrammelled and capricious license. In every case, the standard of arbitral review of management's action will depend upon the words used by the parties to confer the discretion, in the context of the collective agreement in which the discretion is included." ....where the parties have agreed to give the employer a discretion to suspend the payment of earned benefits in certaih cir- cumstances, we think that it must have been intended in using that formulation to incor- porate a number of the elements of the administrative law concept of discretion. In particular, we think that the exercise of the employer's discretion must be in good faith, must be a genuine exercise of discre- tion and not merely the application of a rigid policy, and must include a consider- ation of the merits of each individual case. All relevant factors must be considered, but no extraneous or irrele- vant considerations may be taken into account." - 14 - In the matter before this Board, th~re can be no doubt that management is given broad discretionary powers under Article 54 to grant or refuse a special request for paid leave of absence. However, the Board cannot accept Mr. Fleishman's initial argument that as a result of the Court of Appeal Judgment in Metropolitan Toronto that the exercise of management's discretion can no longer be the subject of arbi- tral review. In the Collective Agreement before us, we find that the Parties have contemplated the inclusion of the basic elements of administrative law jurisprudence in the exercise by management of discretionary powers. In our opinion, the Metropolitan Toronto Judgment does not change the arbitral jurisprudence as stated by Grievance Settlement Board Vice-Chairman Swinton in Re Young and the Crown in Ri ht of Ontario (Ministr of Communit and Social Services ), 220/79 and reported at (1979), 24 L.A.C. (2d) 145. In that matter, the grievor alleged that she had been unjustly denied a leave of absence without pay, pursuant to Article 29.1 of the Working Conditions Collective Agreement in place at the time. In that case, the Article in question read: - 15 - "Leave of absence without pay and without the accumulation of credits may be granted to an employee by the Deputy Minister." At pages 147 and 148 of the Award, Vice-Chairman Swinton states: "The grievor is arguing that she. has been unreasonably denied leave of absence under art. 29.1. While that article is framed in a way which appears to give management an unlimited discretion in the granting or de- nial of leaves of absence, in fact that dis- cretion must be exercised in a non- discriminatory and reasonable manner, as many arbitration awards have held: Re Canada Valve Ltd. and Intll Molders & Allied Workers' Union, Local 279 (1975),9 L.A.C. (2d) 414 (Shime)j Re York University arid C.U.P.E., Local 1356 (1976), 12 L.A.C. (2d) 213 (Abbott). The employer, in deciding whether to grant or deny a leave of absence, must consider the merits of the individual application... " An arbitration board, in subsequently assessing what the employer has done in reaching its decision, then plays a restric- ted role. It must decide whether the em- ployer has acted reasonably and without dis- crimination and has turned its mind to the merits of the particular request. If satis- fied that these criteria have been met, the board must deny the grievance, even if it disagrees with the result reached by the employer or if it might have reached a decision other than that reached by the employer. The board's concern is the reasonableness of the decision, not its 'correctness' in the board's view. Such an approach is the proper one to adopt in - 16 - situations such as leave of absence cases, where the collective agreement gives the employer a broad discretion and where the board has less familiarity than has the employer with the needs of the work place. Unlike the disciplinary area, where employee interests in job security require active arbitral review, it is unwise for an arbi- tration board to second guess management in the structuring of the work-load." In cases involving the exercise of managerial discretion, Boards of Arbitration generally hesitate to substitute their view for that of the decision-maker, which is a recognition of the fact that Boards have less familiarity than does the Employer with the exigencies of the work place. However, Arbitrators must ensure that decisions are made within the confines of certain minimum standards of administrative justice. Those administrative law concepts relating to the proper exercise of discretion include the following considerations: 1) The decision must be made in good faith and without discrimination. 2) It must be a genuine exercise of discre- tionary power, as opposed to rigid policy adherence. 3) Consideration must be given to the merits of the individual application under review. 4) All relevant facts must be considered and conversely irrelevant consideration must be rejected. - 17 - In the application of those minimum guidelines to the evidence presented, the Board is not satisfied that the Employer has given adequate consideration to the procedural requirements of fairness as set out above. At the Hearing, the Employer presented insufficient evidence to establish the nature of the enquiry during which management exercised its decision making process. There is no evidence to establish when and where the enquiry took place, or who was in attendance at the enquiry, or the extent of the Employer's investigation. On ~he evidence, the Board is not satisfied that the Grievor's personal circumstances were taken into account, in spite of the general statement of Charles Malloy that "the circumstances of the Grievor were considered". Mr. Malloy's evidence was to the effect that management concluded that because most patrol yard personnel did manage to get to work at both the Burlington Patrol Yard and Duff's Corners Patrol Yard, the Grievor should have been able to do likewise. Mr. Malloy alleged that information available at the time of the enquiry satisfied the Employer that Highways 403 and the Q.E.W. to Burlington were passable at all relevant times. . . - 18 - In summary, there was insufficient evidence presented to establish the extent of the Employer's investigation in the denial of paid leave of absence. As a result, management has failed to establish that any meaningful consideration was given to the Grievor's personal circumstances. The Board is of the opinion that the facts listed in evidence at the Hearing would have been readily available to the Employer. With knowledge of that information, the Employer would have been able to make its decision, either to grant or deny the leave of absence, in a reasonable manner. Accordingly, deficiencies in the presentation of evidence by the Employer lead the Board to the conclusion that special leave was unreasonably withheld. In our opinion, there was insufficient evidence to establish whether or not the Ministry decision was made in good faith and without discrimination. However, evidence advanced by the Union in support of alleged discrimination on the part of this Employer by reference to another Ministry's policy in its. application to employees in a different geographical area during the same snowstorm, is not, in this case, a relevant consideration. Similarly, on the evidence presented by the Employer, the Board is unable to find that there has been a genuine exercise of discretionary power as distinct from rigid policy adherence. The Board accepts the Union's contention that the Employer lacks the unilateral right to reduce or deduct earned . . - 19 - credits from an employee's accumulated bank of credits. The relevant Collective Agreement provides for employee accumulation of credits such a travel credits, vacation credits, attendance credits and earned overtime credits, all of which are earned by employees on the basis of service, pursuant to the terms of the Collective Agreement. In our opinion, the Collective Agreement contemplates that employees be given the right to make an input prior to any reduction of accumulated credits. In this grievance, the Grievor was afforded no such opportunity prior to management's unilateral decision to deduct 1 day from his vacation credits. In the result, this grievance is upheld and the Grievor shall be granted special leave with pay for his absence on February 28, 1984. In addition, the lost vacation credit will be reinstated. DATED at Brantford, Ontario, this 9th day of April, 1985. .L: ~~ JI- ~"...... , - -'" ------ ~....?<-._""" ./---- --7 R. L. Verity, Q.C. - Vice-Chairman /k~'n- A. ~ M. Perrin - Member "I dissent" (see attached) L. Foreman . - DISSENT Re: OPSEU (Pieter B. Kuyntjes) and Ministry of Transportation & Communications - 513/84 Reading dissents is not normally one of my favourite pastimes. Writing them is even less so. Nevertheless, in the circumstances of this case I feel it is necessary to set out, in some detail, the reasons why, with great respect, I cannot support this award. (A) The Arbitral Authorities In my opinion, this decision rests on a misstatement and misapplication of the relevant law. In arriving at a set of minimum standards of administrative justice, the majority quotes with approval Mullan's text on Administrative Law. As I read the extract on pages 11, 12, and 13 of this award, Mullan enumerates five considerations: (1) It is necessary that there be an absence of bad faith or fraud. (2) There must be a genuine as opposed to a purported use of discretionary power, i.e., the decision maker should personally exercise the authority. (3) The discretion should be exercised in relation to each individual matter and should not be automatically determined by reason of a rigid policy laid down in advance. (4) Extraneous factors or irrelevant considerations must not be taken into account. Conversely, all relevant factors must be taken into account. (5) The decision cannot be so unreasonable that no reasonable authority could ever come to it. Having cited Professor Swan in on thi s revi ew, administrative law Mullan, the majority then reviewed the Meadow Park and Vice-Chairman Swinton in the Chairman then lists the minimum concepts on page 16. To wit: decisions of Young. Based standa rds of (1) The decision must be made in good faith and without discrimination. (2) It must be a genuine exercise of discretionary power, as opposed to rigid policy adherence. (3) Consideration must be given to the merits of the individual application under review. (4) All relevant facts must be considered and conversely irrelevant consideration must be rejected. 2 Unfortunately, and in my oplnlon incorrectly, this latter statement of minimum standards separates the application of a rigid policy from the consideration of the merits of each individual matter. As well, it drops the requirement for reasonableness, which is an essential element of both the other awards. Finally, the decision proceeds to expand the third consideration on page 18 when there is a requirement that it must be a "meaningful" consi derati on. Thi s injects an unwonted el ement of subjecti vity to the arbitral review that is not found in any of the cases submitted by the parties or cited in the award. But more important is the separation of the rigid policy from the consideration of the individual merits. In my humble opinion, the real test of whether or not consideration was given to the individual merits rests on whether there was a blanket application of a rigid, predetermined policy. (B) Constraints on the Exercise of Discretion On page 10, this award cites with approval a statement that, "Arbitrators exceed their jurisdiction if they purport to establish general principles for the administration of collective agreements divorced from the language negotiated by the parties in the matter before them....every allegation that an employer is in breach of the collective agreement must be considered individually, against the language which the parties themselves negotiated, and in accordance with the well known canons of construction." Again on page 13 Professor Swan is quoted as follows, "Having regard to all of the language used by the parties, it is impossible to conclude that the conferral of a certain deci si on-maki ng authority on management coul d have been intended to confer an untrammelled and capricious licence. In every case, the standard of arbitral review of management's action will depend upon the. words used by the parties to confer the discretion, in the context of the collective agreement in which the discretion is included." The arbitrator then proceeds to deal with a situation in which the employer purported to suspend the payment of an earned benefit. Surely the principle articulated by Swan and other cases is that arbitrators should not import concepts to a collective agreement that the language cannot reasonably bea r . In my oplnlon, the collective agreement in the instant case does not confer unfettered discretion to management. At the very least, the exercise must not be arbitrary, discriminatory, or in bad faith. Having said that, I believe that the rigour with which the test is applied depends on the 4 3 circumstances of the case and the particular language. For example, the employer's actions would be open to a more stringent examination in a situation involving an earned benefit than would be the case for an unearned benefit. An analogy can be drawn to the arbitral application of the test of just cause as it appl ies to permanent and probationary employees. It is now widely accepted that the test of just cause for probationary employees is much less rigourous than that which applies to permanent staff. Article 54 of the collective agreement states that, "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." The first thing to note is that we are dealing with an unearned benefit. Second, it is a 1 ea ve of absence with pay. Both these facts suggest, to me, that review of the exercise of discretion would necessarily be less rigourous than would apply in circumstances when an arbitrator is dealing with removal of an earned benefit or a request for a leave of absence without pay. Yet in this particular case the majority has seen fit to apply a more stringent test than was used by arbitrators Swan and Swinton in cases involving an earned benefit and a leave of absence without pay, respectively. J " . 4 Only after an employee has managed to place himself squarely within the grounds for granting the leave may the exercise of discretion be called under revi ew. Even then, as noted above, such a revi ew wi 11 necessarily be constrained by the fact that the language would indicate that this is a gift and there must be some evidence that the gift was given or withheld discriminatorily. In the particular case, the Grievor failed to establish that the circumstances were sufficiently special in order to cause the Deputy Minister to grant the leave. Not only did no other employee apply for the same provision, the vast majority (18 of 20) of employees on the night shift in that area managed to get to work. In my opinion, the Grievor has not managed to clear the first hurdle so it may not even be necessary to consider the exercise of discretion. But if it is necessary to do so, I believe that the review should be conducted with a relatively low threshold requi rement. (D) The Evidence The first obligation of an Arbitration Board is to act as a finder of fact. In this regard, a Board can only deal with the evidence presented to it. Unfortunately, there appears to be a lack of information concerning the nature, timing, and extent of the employer's investigation. But that, surely, is not the point at issue. The requirement is that the employer consider the merits of the individual case and not apply a blanket policy. The extent and nature of the investigation is at best a secondary factor, if relevant at all. What evidence, then, was presented to the Board to deal with this issue? On page 18 the majority states, liThe Board is of the opinion that the facts listed in evidence at the hearing would have been readily available to the employer. With knowledge of that information, the employer would have been able to make its decision, either to grant or deny the leave of absence, in a reasonable manner.1I There was no evidence that the Ministry relied on any other evidence, in coming to its decision, than that presented at the hearing. Surely, the inference to be drawn is that the evidence (which the Board finds satisfactory to make a reasonable decision) is the same evidence that the Ministry used in arriving at its decision. In addition, the majority notes on page 17 that the Ministry official gi vi ng evi dence stated that, liThe ci rcumstances of the Gri evor were consi dered". Thi s evi dence was not di sputed either in cross-exami nati on or by the submission of alternative evidence on the part of the Grievor that the circumstances were not considered. In those circumstances, I believe that a Board either ha:s to accept the statement at face value or make some other finding concerning the credibility of the witness. ~ 1I ... 5 Finally, the employer counsel argued, on the basis of evidence presented, that there was no application of a rigid policy that precluded the exercise of discretion. In the face of this evidence, the majority blithely comes to the concl us i on that the Gri evor' s personal ci rcumstances were not taken into account. I neither understand nor agree with that conclusion. (E) The Role of Common Sense Arbitration Boards were established to remove labour relations from the legal constraints of the judicial system and inject a level of common sense and reasonableness into the resolution of industrial disputes. Deci si ons based on narrow techni ca 1 grounds represent an unfortunate trend away from this original purpose. Moreover, I believe that Arbitrators should exercise caution when allowing procedural difficulties to overturn the substanti ve issues of a case. That is not to say that procedure is not important or even that it should not be accorded its due. This is particularly true in cases where there has been a denial of natural justice or the Grievor is facing severe disciplinary penalties, such as discharge. But that is not the situation in this particular grievance. The substantive issue is whether or not the Grievor has a right to a particular unearned benefit. While the employer may be required to follow certain rules in order to establish that it acted properly, that should not be allowed to cloud the real issue. In this particular case, 18 of the Grievor's colleagues, including several who lived in more remote and isolated areas, managed to get to work. He was the only employee from two adjacent patrol yards who requested special leave. As well, the Ministry relied on him to be at work to help operate the snowplows during a snowstorm. Common sense suggests that he is not entitled to be paid for his absence from work. To find otherwise, while it may arguably be correct in a very narrow, procedura 1 sense, has the effect of turni ng the purpose of Arti cl e 54 on its head. Arbitrators should exercise great care before they abandon common sense in favour of technicalities. Conclusion In summary, I would allow the grievance in part. I would find that the employer improperly deducted a vacation day from the Grievor's bank of credits. At the same time, I would find that he is not entitled to be paid for February 28, 1984 "as a discretionary day". Thus, I would direct the parties to determine whether the employee wishes to be deducted a day's payor some other attendance credi tin recogni ti on of the fact that he is not entitled to be paid for that date. All of which is respectfully SUbmitted.tI"~/'//(;~' ~:, , l 11/, " .;' 'Lt" -[ :: t ,L,(, l_ Le lle &: For man