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Home My WebLink About2020-0696.Cesarini.21-02-23 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# 2020-0696 UNION# 2020-5112-0059 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Cesarini) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Gail Misra Arbitrator FOR THE UNION Alex Andrews Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Emily Lewis Treasury Board Secretariat Employee Relations Advisor HEARING February 17, 2021 -2- DECISION [1] The Employer and the Union at the Toronto South Detention (“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] Michael Cesarini filed a grievance dated February 26, 2020 claiming that the Employer had violated Article 49, and other provisions, of the Collective Agreement when it unreasonably denied the Grievor’s request for three days of compassionate leave on December 23, 24 and 27, 2019. The Grievor seeks full redress by way of remedy. [3] The Grievor is a Fixed Term (FXT) Correctional Officer at the TSDC. In 2019 Mr. Cesarini’s spouse was expecting their first child, and was experiencing a high risk pregnancy. He had therefore taken time off work on a number of occasions to accompany or drive her to some of her medical appointments. In the course of doing so, he had exhausted his sick time and other paid entitlements such as banked time. [4] In late December 2019 the Grievor’s spouse reached her full term. On December 23, 2019 she began to experience contractions. The Grievor was scheduled to work on December 23, 24 and 27, 2019 between 7 p.m. and 7 a.m. On December 23rd, he called the General Duty Manager (GDM) shortly after 5 p.m. to advise of his situation, that he needed to stay home to support his partner and to drive her to the hospital if necessary, and asked to use a day of compassionate leave to attend to his spouse. [5] According to the Employer, when employees call into the GDM to advise that they cannot come in for their imminent shift due to issues that appear to be legitimately time sensitive, the GDM will generally permit the person to not attend at work, but advises that the issue of how the shift will be characterized will be addressed later. GDMs do not determine whether an employee will be granted a special or compassionate day when taking a call from an employee asking to absent themselves from work on short notice. The employee is told to complete an Occurrence Report (OR) when they next come in to work. [6] According to the Grievor, he and his spouse remained up all that night due to her contractions, and in the morning they contacted her midwife. On the afternoon of December 24th, the midwife attended at their home and advised them that she thought there was a good chance that the grievor’s spouse would go into labour that day. The Grievor therefore called in again on December 24th, at around 2 p.m., to advise why he could not attend at work for his night shift, and asked the GDM if he could take a compassionate day for that shift. His non-attendance was authorized again, subject to the completion of an OR when he came back to work. -3- [7] Since the Grievor’s spouse did not in fact go into labour on December 24th, she was advised to go to the hospital for an ultrasound on December 25th. At that juncture, and since she was already past full term, she was told that if the baby did not come before then, her labour would be induced on December 27th. [8] On December 27th, the Grievor’s spouse was scheduled to have her induction at 1 p.m., so the Grievor thought it would be over by the time he had to go to work for his 7 p.m. shift that night. However, when it was clear by around 3 p.m. that there was no progress, the Grievor again called the GDM to advise of the situation, and he asked for a third compassionate leave day. As on the other occasions, he was permitted to remain off work, on the understanding that he would make his request upon his return. The baby was born at 10:58 p.m. on December 27th. [9] On January 1, 2020 the grievor filed an OR requesting paid compassionate days for the 12 hour shifts on December 23, 24 and 27, 2019. By that time he was on parental leave as he had decided to take it right after the birth of his child. [10] On January 28, 2020, based on the information provided in the OR, the Leave of Absence Review Committee denied the request for compassionate days on the basis that it did not meet the criteria for the grant of such paid leave. However, the Grievor was granted three days of leave without pay. [11] That led to the filing of this grievance. The Grievor asserts that because of the Employer’s failure to grant him the compassionate leave, he suffered a number of negative consequences. In particular, since he started his parental leave immediately after the birth of his child, his last two weeks worked did not reflect 40 hour weeks. The amount of Employment Insurance benefits the grievor was paid during his parental leave was based on the average of the weeks prior to his leave. As well, the number of hours that accrued to him for the purposes of service accrual was based on the average of his hours for the 13 weeks prior to the date he went off work on parental leave. In this instance, as a result of the Employer decision not to pay the Grievor for the three days he was off work, his average hours were 37 per week rather than 40 hours per week. The Grievor expressed concern that the loss of hours accrual during that period could affect when he would be eligible to rollover into classified status. [12] The Employer made its decision not to grant the compassionate leave request as the birth of children is an anticipated life event, for which any expectant parent should have a birth plan. It states that the TSDC is a very large institution with a lot of employees, many of whom would be having children born in their families. Nothing in the OR suggested that there were any special circumstances around the birth or the timing of this birth. In this instance, as the Grievor now states, the birth did not arise at an unanticipated time as the Grievor’s spouse was in fact past term. [13] 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 -4- retains the discretion to grant a request for special or compassionate leave, and it must consider each request on its own merits. [14] I am satisfied that the Employer gave due consideration to the Grievor’s request, and that there was nothing arbitrary or unfair in its assessment that his circumstances did not merit the granting of three compassionate paid days. Births are a normal life event, and employees need to plan to the extent that they can for the time off they may need when a partner’s labour commences. While the exact date of birth may not be known, a prospective parent has about eight months to plan for when it is likely to occur. If an FXT employee wants to ensure that they will be paid for time off, that may entail ensuring they have available credits for that purpose. In this instance, the Grievor, as was his right, used his paid credits for earlier medical appointments. However, that does not entitle him to paid compassionate leave for the three days when his partner was in labour. [15] Article 49.1 is clear that the Employer “may grant an employee leave of absence with pay for not more than three (3) days in a year upon special or compassionate grounds” (emphasis added). This is not an entitlement as of right, but rather is a discretionary paid leave that may or may not be granted. [16] Having considered the submissions of the parties and the documentation provided, I am satisfied that the Employer had considered the Grievor’s request as outlined in his January 2020 OR, and I can find no breach of Article 49 of the collective agreement. [17] The grievance is hereby dismissed. Dated at Toronto, Ontario this 23rd day of February, 2021. “Gail Misra” _____________________ Gail Misra, Arbitrator