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HomeMy WebLinkAbout1982-0583.Xavier.83-05-02583182 .: IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: For the Griever: Fti the Employer: M. Milich Staff Relations Officer Civil Service Commission Hearing: February 23, 1983 OPSEU (Anselma Xavier) _ and Griever The Crown in Right of Ontario (Ministry of Government Services) i Empfoyer W.B. Rayner L. Robinson F.T. Collict Vice Chairman Member Member‘7 M. MerqkIJeS+.ntis Grievance Officer Ontario Public Service Employees Union -2- AWARD The Crievor alleges that .~the~ Employer has violated the Collective Agreement in that she was denied special and compassionate leave pursuant to Article 54 of the Collective Agreement. Article 54.1 reads: ARTICLE 54 - SPECIAL AND COMPASSIONATE LEAVE 54.1 A De&y Minister or his designee may grant j an employee leave-of-absence with pay for not more than three (3) days in a year Upon special or compassionate grounds. Article 54.2 piovides: 54.2 The grankng of leave under this Article shall not be dependent qxn or charged against accumulated credits. -’ ” There are no facts in dispute. The Grievdr and her husband both work for the Ontario Government. The Grievor works in the Ministry of Government Services and her husband works in the Ministry of Health. The Griever’s husband is the President of a Local in the Union. Mr. Xavier was the first witness to appear before the Board. He testified that on August 25th both he and his wife were absent from work. He said that the absence was caused by a lack of sleqthe night .: I : before which resulted from their son’s illness. The Xavier’s son was’ 16 months old at the time in question. Both Mr. and Mrs. Xavier testified that their son had a fever and was vomiting. He was quite agitated and both iMr. and Mrs. Xavier had little sleep the night before August 25th. Early in the morning of August 25th Mr. Xavier made a doctor’s appointment for his son. He then contacted his immediate supervisor and indicated that he would not be in. He said that he asked to be booked off sick because his son was ill and because he had no sleep the night before. Later that day the Griever and his wife took their son to the doctor. Mr. Xav~+:said that it was necessary that both parents go to the doctor. because no one’ else was &ailable to assist their son. Mr. Xavier said that the doctor was about a half-hour drive from their home and that they did not have a car seat. Since the son was very agitated it was necessary for one person to hold him; In any event, they arrived% the doctor’s office and received a diagnosis. It would appear that the illness w~as not terriblyserious, although undoubtedly one ,that frightened both parents. Mr. Xavier said that their son had always been in very good health and that this was the first time that he had been sick. -4- Mr. Xavier also called the Griever’s office early ‘in the morning on August 25th. He was unable to speak to a supervisor but did speak to another bargaining unit employee, Mrs. Denny. Mrs. Denny is a Group Leader at the central switchboard in Government Services. He indicated that he told her that his wife was not feeling well and would book-off sick. He indicated that he said that his wife would.discuss the matter with her supervisor when she came in in the morning. Mrs. Denny had no authority to grant or deny time off. She also is a member of the. bargaining unit. ,Her testimony confirms that of Mr. Xavier except that she does not recall ‘anything being said about a fuller explanation that would be forthcoming the next day. Indeed, she indicated that she thought that no such statement was made. Although there is this, minor discrepancy in the testimony b.$tweep the two .. witnesses, the Board is of the opinion that nothing turns on this particular point. Certainly we feel that neither Mr. Xavier or Mrs. Denny was attempting to mislead the Board. Rather, .the passage of time would explain the discrepancy; The witnesses simply recalled the conversation differently after several. months. In any event as mentioned earlier, nothing turns on the discrepancy. Mr. Xavier returned to work on August 26th. Hi wrote out a request for compassionate leave which he gave to his immediate supervisor. On August 27th he was told that his leave had been approved. -5- On August 26th, the Griever also requested compassionate leave from her supervisor. On September 17th, this compassionate leave was denied. The Griever did not receive notice of this denial until October 4th, 1982, because of misfiling, but again nothing turns on this delay. The matter was reviewed by Mr. Charlton, the Assistant Deputy Minister in the department. On November 26th, 1982, he wrote the Griever stating in part: i 1 have no doubt that you were faced with a serious situation on August 25th when your son was si&, and indeed, in my opinion,-if you had telephoned your supervisor and discussed the matter vi+ her at that time, I would expect that there could have been grounds for granting compassionate leave. However, it. is my opinion, that when your husband telephoned advising that you were sick, management appropriately charged the day against your sick leave. . . .._ This let& sets out the nub of the grievance. The Griever does not want the absence on August 25th charged against her accumulated sick leave credits. Rather, the Griever wishes to have the absence classified as compassionate leave which according to Article 54.2 will not be charged against accumulated credits. Both-Mr. Xavier and the Griever .testified that they were ill on .~ the day in question in the sense that the lack of sleep made them unfit for work. Both, however, indicated that they felt that the illness of their son qualified them for compassionate leave. -6- There were several arguments open to the Employer. For example, the Employer could have argued that the illness of the Griever’s son was not a situatiori contemplated by Article 54. ‘However, the Employer chose to argue the case on the basis that the Griever was, in :. . . i fact, ill on the day in question and that the action taken by the Employer to designate her absence as sick leaye tias appropriate. In, essence, the basis for this argument is that the Crievor, through her husband, initially informed the Employer that she was ill. Hence, she must be held to her own designation. The Board is unable to accept this argument. It is true that the Griever testified~.that she was unfit for work that day and was “ill” from lack of sleep. However, there is no question that the Griever’s incapacity resulted from the illness of her son. It was not an illness of .the Griever that caused her absence. If the Employer’s argument was to be accepted, in effect, many situations where compassionate leave wouid .be most appropriate would not be granted. Rather, sick leave would be granted. It is not difficult to imagine circumstances which would ‘. appropriately generate com~passionate leave but which, at the same time, would have such an emotional affect on the,employee that the employee would be incapacitated as far as work performance is concerned. The fact that the physical or emotional effect ,of certain circumstances on the employee precludes the employee from working does not automatically transform compassionate leave into sick .leave. Moreover, we cannot conclude that the statement by the Griever’s husband that the Griever would be away from work because she was ill on August 25th precludes the -7- I Griever from claiming compassionate leave. It is obvious that the statement was made under trying circumstances as far as the Griever and her husband were concerned. It is also obvious that the statement was made not to management but to a fellow worker. Finallly, the Crievor requested compassionate leave the next day. There was no attempt to mislead the Employer. This latter conclusion also undercuts the second submission made by management. That~ submission was that if the Board granted compassionate leave’ to the Griever now, it would, in effect, be condoning a seeming deception on management; The Employer claims that this would be tantamount to condoning dishonest behaviour. In our view, that is not the case. For the reasons stated above we are of the opinion that there was no attempt to deceive or misleads management. Therefore, we are of the opinion that the reasons advanced by management for refusing compassionate leave are not persuasive. : >” The Griever bears the opus to show that she was entitled to compassionate leave just as persons claiming sick leave bear the onus of establishing that they are entitled to,sick leave (see Dorman and Ministry of Community and Social Services, 72/78). On the particular facts of this case, we are satisfied that the Griever has discharged this onus. We reach this conclusion for two reasons. In the first place, the Griever’s husband ,.i.~ was granted compassionate leave by his Ministry on precisely the same -8- facts that the Griever claims entitle her to compassionate leave. Secondly, and more importantly, the letter from Mr. Charlton to the Griever of November 26th, 1982 indicates that it was his opinion that there would have been grounds for granting compassionate leave. The reason given for the refusal is the telephone call from the Griever’s husband advising the Employer that the Griever was sick. The Board has already concluded that this was not sufficient grounds to refuse consideration of compassionate leave. Accordingly, the grievance is allowed. Before concluding our remarks, the Board wishes to emphasize that the award in this matter is based upon the peculiar facts of this case.~ The Board makes no observation as to whether illness in the family is in. general sufficient’grounds to entitle one to compassionate leave and the Board makes no comments as to any discretionary power the Employer may have in this area, ,since arguments were not addressed to the Board on either of these two points.’ ~DATED at London, Ontario this 2nd day of May, 1983. W.0. Rayner L. Robinson , F.T. Collict 8:3123.