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HomeMy WebLinkAbout1979-0220.Young.79-12-10L .i Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE .GRIEVANCE SETTLEMENT BOARD Between: Ms. Martha B. Young and The Crown in Right of.Ontario Ministry of Community & Social Services Before: Professor Katherine Swinton Mr. John Morrow Mr. Ron Cochrane For the Grievor Mr. Mike Pratt Grievance Officer Ontario Public Service Employees Union 1901 Yonge Street Toronto, Ontario For the ~Employer: Mr. D. Abramowitz Manager, Employee Relations FiniStry of Community and Social Services Queen's Park, Toronto. Hearins November 15th, 1979 Suite 2100 180 Oundas St. W. Toronto, Ontario This is a grievance in which Martha Young claims that she has been unjustly denied a leave of absence without pay pursuant to Article 29.1 of the Working Conditions Collective Agreement (February 1, 1978 to January 31, 1979). That article reads: "Leave of absence without pay and without the accumulation of credits my be grated to an employee by the Deputy Minister." The grievor is employed as a Parental Support Worker with the classification of Field Worker 2 in the Windsor office of the Ministry of Community and Social Services. She has he1.d that job since March 21, 1977, having been promoted from Field Worker 1. She joined COMSOC in July, 1976. In early January of 1979, the grievor learned that she was pregnant with her first child. Subsequent reading about pregnancy and child rearing, plus her background in developmental psychology (in which she‘holds an Honours B.A.3, led her to conclude that the early months of a child's life were very impor- tant, and that it was during those months that a child established bonding relationships. It was important to her-that the child acquire that relationship with her, rather than a babysitter. As well, she decided that it was important for the baby's health .to breastfeed. Neither of these objectives could be achieved if she returned to work- full time. These conclusions led her to approach her supervisor, Don Hamelin, in May, 1979 to request an extended leave of absence. Under the Employee Benefits Agreement, the grievor is entitled to 17 weeks maternity leave (Article 11). The grievor asked that she . . -3- be given an additional 14 weeks. Her reasons for doing so were given as above. She chose the 14 week period because that would bring her back to work on March 31, 1980 when the baby was expected to be seven months old and when the winter weather was past, alleviating her concerns about taking the baby to a baby- sitter in cold.weather. She also chose that date because Hamelin indicated that openings for supervisory positions would occur around April 1, and she was interested in competing for such openings. After her discussion with Hamelin, the grievor in- cluded the request in a written application (Ex. 4). She failed to specify any specific reason for the requested leave, although there is no doubt that the employer was familar with her reasons. As well; she stated that she wou1.d be willing to return earlier than March 31, 1980 in order to compete for any supervisory positions open. Her request was subsequently denied by M. Kinder, the Area Manager. Hamelin wrote to the grievor on June 21, 1979~ (Ex. 5),stating that "the complexities of your position and the financial constraints being placed on our current budget make it impossible for leave to be granted at this time." Hamelin had conferred with Kinder abo~ut the grievor's request. Although it was Kinder's responsibility to make the decision to grant or deny leave, he acted on the supervisor's recommendation because'the latter had familiarity with the grievor's position. \ ~,“ .< ' The grievor's job is to seek orders in the Family Court against husbands defaulting on maintenance payments and to assist clients referred by the 12 to 13 Field Worker I's in the office. I -4- She is the only Parental Support Worker in the Windsor Office, although another employee, Joan Mitchell, has been trained to do her work and was working elsewhere on a project at the time at which Young requested leave. Mr. Kinder asked Mr. Hamelin to consider several factors in making his recommendation. The factors considered included the following. COMSOC was then in transition towards a decentralized decision-making process.'with regard to family benefits. This process was and is somewhat disruptive; requiring new training for staff, transfers, and replacements by staff on a contract basis. This factor, plus the~difficulty in replacing the grievor because she held a position different from anyone else in the office which required special training, were important to the supervisor. As well, Kinder testified that he felt that no specialcircumstances were shown to indicate the need for leave, as indicated by the grievor's willingness to return to work earlier than March 31. There was also concern about the fact that three requests for extended leave were received within a short period of time, and granting all three requests could disrupt the office significantly. One of these requests was in fact granted for a 35 week period. The grievor feels that this is discriminatory. Kinder explained that Gail Opincariu was.granted such.leave because she was a Field Worker I, with a readily available sub- stitute who had eleven weeks experience. The grievor was not readily replaceable. The grievor has..argued that she could be replaced, . . -5- either by the employee on project or by one of several Field Workers, at least one of whom was anxious to learn the job. The grievor is arguing that she has been unreasonably denied leave of absence under Article 29.1. While that article is framed in a way which appears to give management an unlimited discretion in the granting or denial of leaves~ of absence, in fact that discretion must be exercised in a non-discriminatory and reasonable manner, as many arbitration awards have held (me Canada Valve Ltd. and International Molders and dllied Workers Union, I.oc. 279 (19?5), 9LAC(2d) 414 (Shime); Re York University And Canadian Union of Public Employees Lot. 1356 (19761, 12laC(2d) 213 (Abbott)). The employer, in deciding whether'to grant or deny a leave of absence,~must consider the merits of the individual application. He cannot rely on "floodgates" arguments, saying that granting a leave of absence in this case may lead to many more requests and therefore, set a dangerous precedent (Re Simon Fraser University and Association of University and College Employees,~Loc. 2 (19771, lSLAC(2d) 24 (SOUtin) at 26; Re United dutombile Workers, Lot. 673 and De Havilland Aircraft of Canada Ltd. (1968). 19I.X 298 (Weatherill) at 299). Rather, the employer must turn its mind to this particular request, and consider both the harm to management's objectives in granting the request and the importance of the request to the employee and the hardship caused by the denial (Canada valve, Supra, at 415). An arbitration board, in subsequently assessing what the employer has done in reaching'its decision, then plays a restricted role. It must decide whether the employer.has acted reasonably - -6- and without discrimination and has turned its mind to the merits of the particular request. If satisfied that these criteria have been met, the Board must deny the grievance, even if it dis- agrees 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 de&ion, not its "correctness" in the Board's view. Such an approach is the proper one,to adopt in 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 workplace. Unlike the disciplinary area, where employee interests in job security require active arbitral review, it is unwise for an arbitration board to second guess management in the structuring of the workload. If we look at the evidence here, adopting the approach outlined above, it is difficult to say that the grievor has been unreasonably denied a leave of absence. Kinder and Hamelin did give separate consideration to each of the three requests for leave received within‘a short time period. One was granted because it was felt that the employee could be readily replaced. The other two (including the grievor's) were denied, ~because of difficulties in replacing ttie applicants. This was a time in which'significant disruptions were occurring in the ~office because of the decentral- ization programme, and Kinder wanted to keep such disruptions to a minimum. -7: The grievor has argued that she could be replaced by the person filling her job during her maternity leave. Mr. Kinder explained that no one was really "replacing" her. Rather, one person was doing work formerly done by.two, and he felt that it was important to return to normal operation as soon as possible. The grievor has also argued that the employer failed to give adequate,consideration to her interests in remaining off work and, therefore, acted unreasonably. Clearly, the grievor wishes to remain at home with her child, and she made this known to the employer. The. response was to point to the 17 week period of maternity leave regarded as adequate in the collective agreement. It was also stated that the request for extended leave would be reconsidered if special circumstances arose after the birth. Was this denial of leave, then, unreasonable? While the Board might disagree with the employer's decision, it cannot find that the decision was "unreasonable". The employer was concerned about the disruption, in the 0ffic.e caused by such leave, because of the need to find and train a replacement for the grievor and then to replace that person if an existing Field Worker was used. The employer felt that no special circumstances were shown to merit extended leave beyond the 17 week period bargained for by the union and set out in the collective agreement and the Employment Standards Act. While the grievor has strong feelings about the need to remain with her child, the employer also has important staffing considera- tions to weigh against this.'-‘ The union argued that this case was equivalent to the Canada valve case (supral in which Mr. Shime held that the employee . . i -8- should have been granted leave for one day for religious reasons despite disruption to the employer's operations. The disruption there is minimal. Here, it would continue for 14 weeks and require a signifi- cant redeployment of resources, even if this is just a continuation of maternity 1 eave. This fact leads to a greater weight being given to the .management side in the convenience balance in this case. Incoming to the cdnclusion that the denial was not unreasonable, we are by no means unaware of the grievor's sincere concern about her child and her interes~t in remaining at home to care for him. She has proposed a compromise solution to management whereby she would resume the part of her job requiring court appearances. This would require about 2% days a~ week, and she could perform that work from her home. It would not be unusual for the grievor to work from her home, for the Field Worker I'S have been encouraged to work away from the office, rather than coming into the office every day (Ex. 17). The grievor is clearly a dedicated and very competent worker and it would appear to be in the long-term interests of the employer to reconsider her.proposal to work from home. .There does not seem to be any practical impediment to such a compromise solution, which would give Ms. Young the opportunity to look after her child in the manner which she feels important, as well as allow'the employer to retain the services of a valuable employee. For the reasons~given above, the grievance'is denied. :~ -9- .;. Dated at Toronto this 10th day of December, 1979. Prof. Katherine Swinton Vice-Chairman I conk Mr. John Morrow Member I concur Mr. Ron Cochrane Member