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HomeMy WebLinkAbout1979-0024.Elesie.80-10-01IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT B3ARD Between: Mrs. Helen Elesie and The Crown in Right of Ontario Ministry of Health Hamilton Psychiatric Hospital Before: Professor Katherine Swinton Vice-Chairman Mr. K. W. Preston Member Ms. E. McIntyre Member For the Grievor: Mr. George Richards, Grievance Officer Ontario Public Service Employees Union For the Employer: Mr. Lorne Jarvis Regional Personnel Administrator Hamilton Psychiatric Hospitai Wearing: lugust ZOth, 1960 Suite 2100, 168 kndas St. lies< Toronto, antsrio d - 2 - This is a grievance in which Mrs. Helen Elesie claims that she has been unreasonably denied compassionate leave under Article 16 of the Benefits Agreement (October 1,.1977 to September 30, 1978). Mrs. Elesie is a Clerk General in the Medical Records Section of the Hamilton Psychiatric Hospital. The events giving rise to this grievance occurred in early November, 1978. On Monday, November 6, 1978 she received a telephone call from her son, who was on a combined business and pleasure trip in Halifax. He informed her that he and his wife had been involved in a serious car accident that day. While he was injured but not hospitalized. his wife had suffered a broken back and ankle. The grievor testified that she was very con- cerned, but did not go to Halifax imnediately as her son asked her to wait until he had further news from the doctors about his wife's condition. The grievor went to work the next day. She was upset and told her supervisors, Mrs. Bryers and Ms. Austin, the news and inquired about leave from Mrs. Bryers. On Wednesday., she stayed home because she was so upset. Her son called that night to tell her that his wife had undergone an operation. A plate had been put in her ankle and she was now on a striker bed for her back. Mrs. Elesie's son asked her to come to Halifax to give special care to his wife in the hospital during the following week, as he had to return to work and he could not afford to hire a private nurse. No other family members were available to attend her. Mrs. Elesie went to work the nex t day and contacted Marjorie Robertson in Pers'onnel to ask about leave. .Ms. Robertson SubsesuentlY told her that she would not be granted compassionate'leave under the collective agreement, as she had not left for Halifax imnediately on hearing of the accident. The grievor did have four days of holidays scheduled for the following week (November 14 to 17), and it was suggested that she could use those. The grievor, dissatisfied with the response, then drafted a memo "To #horn It May Concern" (Ex. 2), requesting leave because of the car accident, and gave it to Ms. Austin, the Chief Librarian. Austin recommended that leave be granted and forwarded the memo to Mr. Morin. the Administrator- of the Hospital,. No reply was received by Mrs. Elesie on Thursday or Friday, despite several calls to Morin's office. Therefore, on Saturday she left for Halifax. She returned to work on November 21 after the Remembrance Day holiday and her four vacation' days. She subsequently heard from Austin or Dryers that her request was refused, although no written'reasons were given. Mr. Morin, the Administrator, gave evidence as to why he denied the request for leave. After receiving the grievor's memo, he sought additional information from Ms. Austin. He then decided to deny the request for several reasons: the fact that the injuries were not serious enough to warrant leave; the delay between the accident (November 6) and the dates requested for leave (November 14 to 16); the possible availability of other relatives; and, possibly, the fact that Mrs. Elesie's vacation was coming up. He said that he understood from Ms. Austin that surgery had not yet occurred and would take place the following week. For him, this was an important factor, for he feels that compassionate leave should only be granted in emergency situdti@flS which are personal in nature. Mrs. Elesic's departure, almost one week , 1 - 4 - : after the accident, was characterized by him as a "pre-planned" event, rather than dn emergency, and, therefore $'not a proper reason for granting discretionar) leave. The dispute in this case centers on Article 16 of the Benefits Agreement. It reads: Article 16 - Special or Compassionate Leave 16.2 A Bputy Minister of his designee may grwt an employee leave-of-absence with pay for not mfe than three (3) days in a year upon special or compassionate grounds. While the wording appears to confer a broad discretion upon the employer in deciding whether-to grant special or compassionate leave, it is well established that such discretion must be exercised reasonably and non- discriminatorily (Young and Ministry of Community and Social Services, 220/79: Figliano and Ministry of TrmSporatiOn and Commmications, 19/80). While the young and Figlimo cases dealt with the general leave of absence provision in Article 29.1 of the Working Conditions Agreement, the standard of reasonableness and non-discrimination mentioned in those cases applies as well to the special and compassionate leave provision in the Benefits Agreement, for both articles are framed so as to give the employer discretion in deciding whether to grant leave. In the ycrunq case Isupralthis Board stated that its role in reviewing management's decision was restricted: it should consider the reasonableness of the decision, but not its correctness in the Board's view (p.6). In exercising that role, one of the Board's concerns is to determine whether the employer had sound reasons for distinguishing between $a -5- _ applicants who received different treatment. If one employee received leave and another was denied leave, there must be something in the circumstances surrounding,the two applications to justify the differential treatment. Otherwise, the employer must be regarded as acting arbitrarily and unreasonably. Therefore, it is important that the employer establish some criteria to guide his decision about granting or denying leave so that like cases are treated alike. Beyond that, however, is another concern about reasonableness. ! The standards or criteria established must themselves be reasonable. For example, in young, the Board considered the employer's staffing requirements to be a reasonable criterion for denying leave. The cases discussed in young show a concern that the employer's interest be balanced against th,e employee's. Turning to the present case, there are two grounds for concern about the employer's action in denying Mrs. Elesie's request for compassionate leave. The first is with regard to the equal application of the criteria established by the Administrator, Mr. Norin. to guide him in making his decision as to whether to grant compassionate leave. Mr. Morin said that he granted leave when there was an (1) an unplanned event (2) of a personal nature (3) which was "emergent" in character. In applying these criteria he agreed that the accident here was both unplanned and of a personal nature, but he denied leave because he felt that the circumstances did not constitute an emergency. A< stated earlier, he believed that the surg.ery was to occur in a week and was, therefore, "pre-planned." It is difficult to hold that Mr. Morin's decision was reasonable -6- .’ in light of the evidence presented at the,hearing as it appears to have been affected by a misunderstanding of the circumstances. The reason that Mrs. Elesie delayed her trip to Halifax for almost one week was her son's request to postpone her trip until she was needed - that is, when all the circumstances of her daughter-in-law's condition were known and when it was determined that she could provide special nursing care. At the time she went to Halifax, it appears that there was an urgent need for her services and in circumstances that can easily be described as an emergency. On Mr. Mot-in's criteria for compassionate leave, then, one would think that she should have been granted leave. To deny that leave seems to result in treatment for Mrs. Elesie that is different from that accorded other employees and to do so without adequate reason. In reaching that conclusion,,we are not unmindful'of the submission of counsel for the employer that the Board should not second guess management's decision in deciding reasonableness. However. in the circumstances we feel that we are not doing so. Mr. Morin's testimony indicates that he misunderstood Mrs. Elesie's circumstances and the reason for her delayed departure. Furthermore, he placed his own interpretation on facts which he heard second hand from Ms. Austin. The latter felt this to be an emergency. We appreciate that it would be administratively unfeasible for Mr. Morin to consider every request for leave on the basis of personal consultation.with the applicant, and we would not require him to do so. A supervisor in his position must rely on his subordinates for advice and the funnelling of relevant information. On the basis of this information he may well assess a situation differently from some of these -/- : subordinates. However, in doing so, the supervisor must ensure that he understands the facts correctly and that he takes into account the importance of the assessment of the situation by one who is close to the employee involved and able to consider the degree of distress experienced by the employee first-hand. Had Mr. Morin taken these considerations into account,. it is difficult to see how he could treat this as a pre-planned event and not an emergency, distressing to Mrs. Eles,ie. Therefore, he acted unreasonably, in applying his own criteria for compassionate leave. There is a further ground for.concern in this case. While we conclude that Mr. Morin acted unreasonably in applying his criteria for 'leave, the criteria-themselves are subject to question on the grounds of reasonableness. Article 16.1 of the Benefits Agreement speaks of “compassionate” leave, not "emergency" leave, yet emergency is a.ma.ior, and determining, factor in Mr. Morin's decision whether to grant such leave. Compassionate leave is granted to an employee when he or she is in a situation deserving of sympathetic treatment. This would obviously include emergencies beyond the control of the employee, as Mr. Horin said - for example, 'a fire destroying the employee's home or an accident to a spouse which calls the employee away from work.' However, it is unnecessarily restrictive to say that compassionate leave should be confined to such emergencies, for what could be called a "planned event", such as major surgery for a spouse or a court date for a child scheduled in advance, may also be regarded as circumstances requiring compassionate treatment by an, employer. In this case, the griever was met with circumstances beyond her control - a serious car accident to her son's wife. It was a diszurb'ng 1 -a- and emotional event, which she felt required her attention and presence in Halifax, albeit at a date after the precipitating event. Although she did have a scheduled vacation upcoming, that should not be determinative here. Had she received a favourable response to her leave request, she could.have prolonged her stay with her daughter-in-law beyond her vacation time. Had she left as soon as her son phoned, she might have had a longer period with them. Furthermore, she was forced to change her vacation plans because of the accident and the need for her care. Rather than militate against her request, these are facts which would appear relevant to the consideration of whether she was deserving of compassionate leave. Again, the Board is aware of the danger of substituting its judgment for that of management. Nevertheless, just as the Board should show deference and not decide "correctness" when its concern is one of reasonableness, it should not construe "reasonable" to mean "any possible reason". There must be sound reasons for the decision to deny "compassionate" leave and those reasons must take into account the sympathetic aspects of the request for compassionate leave as well as their emergency nature. In conclusion, the grievance is allowed. The grievor has been unreasonably denied compassionate leave. As provided for in Article 16.1 of the Benefits Agreement, she should have received three days' compassicnate leave with pay. Therefore, as requested in the grievance, she should be credited with three'days' vacation credit. The Board will retain jurisdiction I -- -9- to deal with any disputes about the implementatien of this award. Dated at Toronto this 1st day of October 1980. mherine Swinton- Vice-Chaim *I Dissent K. W. Preston I Concur E. McIntyre Member P:ember * I ?6q - Dissent - Article 16.1 does confer a broad discretion upon the employer in deciding whether to grant special or compassionate leave. There was no evidence of discrimination against the grievor. The Management criteria for granting leave has been exercised in a consistent manner, While I may disagree with the basis for granting or not granting leave I do not find the criteria. unreasonable.