HomeMy WebLinkAbout2018-1153.Motyka.20-09-21 DecisionCrown 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# 2018-1153
UNION# 2018-5112-0084
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Motyka) Union
- and -
The Crown in Right of Ontario
(Ministry of the Solicitor General) Employer
BEFORE
Gail Misra
Arbitrator
FOR THE UNION
Dan Sidsworth
Ontario Public Service Employees Union
Grievance Officer
FOR THE EMPLOYER Emily Lewis
Treasury Board Secretariat
Employee Relations Advisor
HEARING September 17, 2020 (by videoconference)
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DECISION
[1] The Employer and the Union at the Toronto South Detention Centre (“TSDC”) agreed
to participate in mediation-arbitration in accordance with the Local Mediation-
Arbitration Protocol that has been negotiated by the parties. Should mediation not
result in resolution of a grievance, pursuant to the Protocol, they have agreed to a
mediation-arbitration process by which each party provides the Arbitrator with their
submissions setting out their respective facts and the authorities they may be relying
upon. This decision is issued in accordance with the Protocol and with Article 22.16
of the collective agreement, so that it is without precedent or prejudice to any other
matters between the parties, and is issued without written reasons.
[2] Edyta Motyka filed a grievance dated April 23, 2018 claiming that the Employer had
violated Article 49 of the Collective Agreement when it failed to grant Ms. Motyka’s
request for a day of compassionate leave on December 28, 2017. The remedy
sought is payment for the 12 hour shift.
[3] Ms. Motyka is a Correctional Officer at the TSDC. She was scheduled to work on
December 28, 2017 between 7 p.m. and 7 a.m. At about 5 p.m. on December 28th
the Grievor was unable to open her car door as it was frozen shut. When she got in
through the passenger side door, the car would not start. She therefore called the
General Duty Manager (GDM), Sergeant Eno, at 5:15 p.m. to advise him of her
situation. She indicated that as a result of her car trouble, she would not be able to
attend for her shift that night. She was therefore marked as on leave, without pay, for
the shift.
[4] On January 1, 2018 the Grievor made a request that the December 28, 2017 shift
that she was unable to attend at work be considered a compassionate day, and that
she be paid for it. Her request for a compassionate day was first denied on February
1, 2018, but she was granted a day of leave without pay.
[5] The Grievor requested reconsideration. On March 8, 2018 her request was denied
by the Leave of Absence Review Committee as the Employer determined that it did
not meet the criteria for compassionate leave.
[6] On March 22, 2018 the Grievor submitted an appeal regarding the denial of the
compassionate leave day. This time she added more details and documents to
support her claim. She added that following her call to the GDM on December 28th,
she had called her mechanic and was told she could bring her car in, but they could
not say how long it would take to fix as it depended on what the problem was. The
Grievor then contacted her father, who arranged with a friend to tow her car to the
garage, which was located in Hornby, near Milton.
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[7] The vehicle was at the garage by 8 p.m., a battery issue was diagnosed, as was a
door jamming issue, and both were fixed within an hour. Ms. Motyka waited at the
garage, and then drove to her home in Mississauga.
[8] As part of her package of documents provided on her appeal, the Grievor included a
Google Maps print out dated January 11, 2018, indicating the route options between
the garage and the TSDC, and how long it would take for the various routes. For the
slowest route, it would have taken 55 minutes to get to the institution.
[9] On April 12, 2018 the Grievor was advised that her appeal and documents had been
reviewed by senior administration, and the decision remained unchanged, so a paid
compassionate day was not approved. That led to the filing of this grievance.
[10] The Employer points out that this event occurred during the period between
Christmas and New Year’s, when the Grievor would have known that the TSDC was
short-staffed, and was in need of COs. Yet there was no evidence that the Grievor
had made any attempts to get to work any other way after she found out at 5 p.m.
that her car was not working. While she states that she called her father to arrange
for towing of her vehicle, there is no evidence that she asked anyone to give her a
ride to work.
[11] Furthermore, she made no effort to contact her employer at around 9 p.m., when her
car was fixed, to ask the GDM if it would be helpful for her to come to work for the
remainder of her shift. According to the Google map provided by the Grievor, at that
juncture, she could likely have been at work within an hour.
[12] Pursuant to Article 49, no more than three days of leave with pay may be granted to
an employee in a year upon special or compassionate grounds. The Employer
maintains the discretion to grant a request for special or compassionate leave, and it
must consider each request on its own merits.
[13] Having considered the submissions of the parties and the documentation provided, I
can find no breach of Article 49 of the collective agreement. I am satisfied that the
Employer gave due consideration to the Grievor’s request, and there is nothing
arbitrary or unfair in its assessment that her circumstances did not merit the granting
of a special or compassionate paid day.
[14] The grievance is hereby dismissed.
Dated at Toronto, Ontario this 21st day of September, 2020.
“Gail Misra”
_____________________
Gail Misra, Arbitrator