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HomeMy WebLinkAbout1981-0274.Gillies.82-02-18274/81 IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: For the Crievor: For the Employer: Hearing: OPSEU (Mr. William Gillies) and The Crown in Right of Ontario (Ministry .of~~Correctional Services) G. Brent - Vice-Chairnan E. H. Weisbach - iMember W. A. Lobraico - Member ki, Mercer-DeSantis, Grievance Officer Ontario Public Service Employees Union P. Van Horne, Staff Relations Human Resources Management Ministry of Correctional Services January lSth, 1982 Grievor Employer L The grievance before tnis ooarti (Lx. 6) jias filed on January 23, lYa1; if alleges that the griever was denied special or compassi oiia te leave ana requests mat he bs credited ;rith the lieu say deaucceq fro0 hiia. The parties raised no prelitinnary oojeccions to the board’s jurisdiction. ‘The griever was at all material times employed as a Correctional Officer 2 oy the Xinis:ry of Correctional Se>vices at the ~~plehurst facility in Xilton, Ontario. The griever rias hired on April 21, 1975 and ha s 3liaYS ‘JOrKea at ,*iaplehursc. On January 16, IYdl he was telrplloned at jrork by nis sister, wno lived in Kitchener, and toid that her notner-in-law (Ms. Stachers) had died the nignr before and .as hing buried tne next day. The griever testified that Xrs. Srathers had been teruinally ill with cancer for the past year; and that his sister and brother-in-law had been under considerable strain because of this _ _._~.. ill”f?SS. He said cbac hi identified wi.th their suffering &cause his grandfather bad ceeo sluilarly ill, and be had watched him’die. The griever testified chat he had known Mrs. Stathers for several years chrougn their church and also throudn his sister’s marriage to her son. lie saw drs. Statners on fauily occasions and had warm feelings tava rcl oe r . He also -as very close to his sister, and wanted to M at tne funeral in order to su?port her as much as he could. In addi ti on, hi s aother -“ted to attend the funeral, and she was unabie to drive tne re herself because si1.e had had 0~” neart surgery and rwas forbidaen to drive oy ner doctor. ilis father ‘xas not abie to go because he ~iis seriously ill vim a hearc COndicion, w’nicil caused his death lacer ths~ year. i’hr gri+vor ces:i fied tnaL he diacusseti alrorna:e a:ran:ex:rtc :n cn hi s orocoer dno As ocner sister, out tna t tney se r2 unable co attena me fumrai and to taw ‘his mother there. It is clear irom the C i evluence tnat the grirvor felt a strong fatily obligation io actend the funeral and co accolupany “is moc”er, and that he lelc chat under the circumstances “e had co attend the Puneral. The griever was scheduled co ;rork on the .day shift on January 17, 1YUl. On January 16th he wrote the folloiring oeno (Ex. 1) to w. Fe r@so” , tne r\ssisca”n Su~rineendenc, requesting leave: Sir, I request cmpassionace leave under Article 54 Of me collective a&reeoe”c co accend sy sister's socher-in-iau’s funeral on Sac. Jan. 17, IY31 failing this I would the” request a lieu day. Yours truly, “tiilliao G. Gillies” The griever cescified ChaC his ui” concern ;~as geccing a day off co go to the funeral, and chaf is wny. he mntioned rhe lieu day as an alcermcive. Lacer cnat day he received a n?ao from Hr. Ferguso" (Ex. 2) co the effect that he had been granted a lieu day. The memo also concaine a notaacion to the effect chat no addi&onal staff was required' to cover the griever’s shift in the evrnc of his absence. The griever the” wrote the followinl: 1~90 (0. 3) to Xr. Ferguso”: Sir, I would appreciate receiving a irri tee” clarlficacio” of what compassionate leave wa”s and when this leave would be granted.. On Jan, 16, 1981 I found out my sister’s notner-in-law “ad died and ii= s Jein;: buried me following day. Immzdiatrly upo” receiving this inforwcio” ac work I requested covpassionafe leave under Arcicle 54 of rile Collective Agreecent. I don’t understand my a lieu day was granted instead of cocrpassionate leave when no addi tiunal coverage was rrqui red for "Y stii rc . Yours truly, “Uiiliam G. Gillies” The grievur rJas 3osenc rroil vork on Saturday, Jdnwry 17th co accena tne iune ra 1, On xonddy Janwry IYth ne receive” the foliwi “c; leccrr iia. 4) froln :.!r. Ferguso”: ijear x. Gillies: iX: CiMPASSIOi’iAT~ Li‘\VE In reply co your query dated January lb, LYdl re the abOV2. Article 54.1 states, ‘“A Cepucy Xinister or his desig:nee icay grant a” employee leave-of-aasence with pay for not noie Cha” three (3) days in a year upon special or coqassionace grounds”. It is our policy to grant such leave when there are particularly urgent or pressing personal circumstances ,wbich would warrant such absence. In your particular case ic is not felt chat the death Of your sister’s aother-i n-lav lwsS such a ci rcumsta”ce . The issue you rai $8 of “cove rage ‘. not being needed is irrelevant in this particular case. I hope tilis answers your query. I would be pleased Co discuss the matter further vitb you if you rw-ish. Please keep this original letter for you* information and sign the attached copy in acknowledgezenc of being informed of its contenrs., Yours truly, tSigned) X. Ferguson Assi tanc Suprinceodenc Maplehurst Colnplex The griever then coloplained to his Head Shift Officer and received t”r following letter (Ex. 5) in response co his cowplaint: Dear >I*. Gillies: . XE : KGJUEST iOi( SPECIxL LUVE ‘In ans*wzr fo your comolaint, regarding the rd iusal or your application ;or a special or coopassionace day’s leave on the death of your sister’s mother- in-law, L have co”Cacted C”e Superintendent in ‘rid *a *cl to cllis xzaccer, anu I have co iniora Y”” that the original decision, you received by letter frocl ,‘,T . d. Ferguson, 3ust scam. For yuur infuriation 3”s considera:io”. You** truly, iSigneuJ J. tiugenc Yead ShifC Oricer General uucy ;.lap1enursc chwplex a. Fe rguson ’ s evidence MS chat he lacks :he authority to grant coiopassionate or special leave, and Chat only the Supeeintendent, xr . Roberts, has been designated by :he i)eputy Xinis:er CO g.rant such law. He ,-id tna t men he received the griever’s reqwsr: lace on Friaay a fre rnQO” his first thought was Co ensure Chat the griever had tile e-a. off, and so he granted nim a lieu day since that was tne Only thi “g rmicn he was authorizea to do. 14r. Ferguson said that it is his Custom to inform $=sopie reqwscing co5passionaCe leave chat Chey have to ask me Su~xintendenc; however, he was unable to recall wnether he had done this men the griever made his request. It was ?Ir,. Ferguson’s view :hat “0 reqliest for coupassionace leave had ever been mde to the Suprincendenfm and, that wne” he wrote the letter dated January 1Yth (EX. 4), he was rsrely responding Co a request to clarify guidelines. It appears from Che evidence Char it is usual to rake requests for cospassiona te leave througn the Assistant Supriotendenc, who then fordards tne request to the Su~rintrndenr. The griever himself had CWJ such leaves granted in tnis manner, and the manageurnt witnesses a&reed tn.3 I: sucn a procedure was proper. It is also clear from the evidence tna t :!r. ie:guson never furwarded the request to !,r. aterts, and t!u t :xr * K~cerCs did not consiuer tnis as a request for corapassionate leave. It teens rather that Xr. docerts was askea to consider in the absrrac t rine t:w2r COOlpaSSl ona ce leave would ce agpropriacr for attendance at a sister’s: mciuzr-in-law’s 5dner.31. it -s.u1u do no good to try to evaluarr tne rrasonaolenrss of C!,SZ criwrid ,wilicn .2anageuznC normally apllies CO rrquests far co+assion;lte leave, we” ic is clear tnat tne gr~ievor’s request was never really rreatea as SUC” a request. The prievor’s request was clearly one for cmp~ssionate leave, and it is unreasonable to incer?ret it as anything ocher than that. The lieu day vas only to lx considered as a” alternative ii the compassionate leave was refused. ay acting on the request in tne manner he did, Nr . Ferguson effectively refused the compassio”a te leave (ther~y exceeding his aucnority) by ignoring the request and granting the lieu day. >ir . ierguson’s desire to grant the griever time off is comxndabie; however, in line ‘wiih the griever’s request, he snould nave granted the lieu day as a temporary veasure ) pending the Superintendent’s decision on the request for compas&onate leave, The responses which the griever received to his subsequent inquiries clearly give the iwpression chat the request for compassionate leave ;as consiaerrd sod refused. It is clea; from the evidence that tni s never occurred, This case is therefore unique, and the cases dealing with the mnner in which management ought to act in the exercise of its discretion “““er ,the article are really not of much assistance to tne ooa ra . The grirvor should have had his request fdr coir+mssionate leave coosiuerea. He had clearly requested such a leave a”” MS e,nti tied to have his request pr”perly considered. :.!a nage we ” t doe s not 1 have tne uni la te ra 1 right to chahge the thrust '0 f hi s request. Pla"a~ea?"n" subsequent actioos only confuse the issue and 30 not mke it clear mat toe grirvor's requesr xas oever really treaced as one for coqxssionate leave. The iiu nne r in .xlicil we grirvor’s request ws treated creates an unusual situation ior tile boara , and raises an interestins .question as to, Che relirdy to -aich che.grievor is enticlra. This case ia"n"c OT 7 treated as me mere the griever’s reqwst was curned d”W” ei the r orcause the empioyer used unreasonable criteria, UC because the e:uployer applied the crl teria unreasonably. The griever is entitled to a rswdy, ana the board must fashion a renrdy for him. Given the~tinz srhich has gassed since the requrst was oade, and all of the circumstances of this case, it seeus reasonable to grant tne grieboe the remedy he na s requestea ana credit his leave bank with a lieu day. In doing this, the board is not to ce considered as granting the griever’s original request i”K cowpassi ona te leave , but rather to h granting hi3 a reeedy for tile employer’s failure co consider his application and its unilateral alterracion of his request to one for rhe use of one of his lieu days. For all of the reasons set out above, the grievance is allo~wad and me griever *will have one lieu day added to his credit. DATED AT LONDON ONTARIO THIS 18th DAY OF Fkbuary, 1982. -., 4 .,.;I T&&J- Gsil iirent, Vice-Chairwn.