Loading...
HomeMy WebLinkAbout1984-0017.Elhadad.85-08-26:: ,. . . ,:. Between: Before: IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (David Elhadad) Grievor - and - The Crown in Right of Ontario (Ministry of Health). Employer I. C. Springate Acting Chairman I. Thomson Member E. Orsini Member For the Griever: P. Cavalluzzo Counsel Cavalluzzo, Hayes & Lennon Barristers & Solicitors .For the Employer: A. Warner McChesney' Staff Relations Officer Staff Relations Branch Civil Service Commission Hearing: July 23, 1985 The griever, Mr. David Blhadad, is employed by the Ministry of Health as an Ambulance Officer 2 in the Ottawa-Carleton Regional Ambulance Service. As such he is covered by a collective agreement entered into between th& k ManagementBoard of Cabinet and the Ontario Public Service Employees Union. It is the contention of the grievor and the union that the Ministry violated the collective agreement by~refusing to allow Mr. Elhadad time off from work with pay so'as to enable him to travel to-Toronto to meet with a representative of the union in advance of a Grievance Settlement Board hearing.. The relevant provision in the collective agreement is article 27.7.1 which provides as follows: "An employee who is a grievor or complainant and who makes application for a hearing, before the Grievance Settlement Board or the Public Service Labour Relations Tribunal shall be allowed leave-of-absence with no loss of pay and with no loss of,credits, if required to be in attendance by the Board or Tribunal." The grievor testified that he is's chief union steward, and as such had filed a.grievance against the Ministry of Health relating to employee rest periods. The grievance was scheduled to be heard by the Grievance Settlement Board in Toronto on August 19, 1983. Article 27.7.1 of the collective agreement provides that a grievor is entitled to leave-of-absence with no loss of pay or : _ i - 2 - credits "if required to be in attendance by the Board." ',At the hearing neither party addressed the meaning to be given ,this phrase. However, it is clear from the Ministry's I conduct at the relevant time, as well as its submissions at the hearing held with respect to these proceedings, that the Ministry viewed Mr. Elhadad as meeting all of the requirements for obtaining a leave of'absence with pay to attend the Board hearing on August 19, 1983. The Ministry did, in fact, provide Mr. Elhadad, with a leave of absence.on August 19, 1983 with.no loss of pay and no Ioss of credits so as to enable him .to attend the Board hearing. However, prior to the dater set for the hearing, Mr. Elhadad asked Mr. Lyle Massender, the assistant manager of the Ottawa-Carleton Ambulance Service, if he could leave work at 1:30 p.m. on August 18th so asto be able to drive to Toronto and meet that evening with Miss Sandra Laycock, a grievance officer with the union. It had been arranged that Miss Laycock would meet Mr. Elhadad at his hotel in downtown Toronto between 7:OO and 8:00 on the evening of August 18th.so that he could assist her in preparing the union's case for the hearing the following day. There is a dispute in the evidence as to how far in advance of August 18th Mr. Elhadad actually requested the additional time off. Mr. Elhadad claimed that he made his request about a week prior to August 18th, $herea,s -3- Mr. Massender claims it was only two days before. In our r' view, nothing turns on the difference. Whenever the request was made, the employer does not contend that it had too little time to make the necessary arrangements for the grievor to be off on August 18th. Accordingly, we can only assume that given all of the circumstances the request was made in a reasonably timely fashion. However, after discussing the matter with the Ministry's' regional administrator, Mr. Massender advised Mr. Elhadad that while he could have the additional time off from work, in order to be ~paid for the time he would have to utilize either vacation or statutory holiday lieu time credits. Otherwise, he.would be required to take the time off as a leave of absence without pay. Mr. Elhadad decided to take the time off as a leave without pay. He then filed the grievance that is now before us claiming that he had been entitled to the time off with pay and without loss of credits pursuant to article 27.7.1 of the collective agreement. The griever's schedule on August 18th called for him to work from 7:30 a.m. to 5:30 p.m. As already noted, he was to meet with Miss Laycock in Toronto sometime between 7:Od and 8:00 p.m. The meeting was to~,be a.fairly lengthy one. Indeed, the evidence indicates.that it lasted 2 hours and 20 minutes. Had Mr.. Elhadad worked his full shift on - 4 - August 18th, finishing at 5:30, he could not have driven fhe distance from Ottawa to Toronto so as to arrive at a ' reasonable time to meet with Miss Laycock. It is the Ministry's contention, however, that Mr. Elhadad could~ have flown to Toronto after the end of his regular shift, and in this regard it led evidence to establish that on.the day in question Air Canada flights left Ottawa for Toronto at 6:30, 7:30 and lo:50 p.m.. According to Mr. Elhadad, it would not have been reasonable for him to plan on working his full shift and then taking the 6~30 flight because of the possibility that towards the end of his shift he might be assigned an emergency call which would foreclose the possibility of him catching the flight. Mr. Elhadad.'s evidence in this regard was confirmed.by Mr. Massender: According to Mr. Massender, while'the~dispatch centre would have tried to avoid assigning a call to Mr. Elhadad towards the end of his shift, there would have been no guarantee that he would not be assigned a call. Mr. Massender testified that he had advised Mr. Elhadad that he would try to "log him off" prior to.the end of his shift on August 18th so as to assist with his travel plans. However, notwithstanding Mr. Massender's best efforts in this regard,' it appears that there would still have been a reasonable chance that Mr. Elhadad might not be able to make the 6:30 plane. -5- Mr. Elhadad testified that had he worked hisi full shift on August 17, 1983, he.likely would not have been able to catch the 7:30 Air Canada flight to Toronto. The weight of the evidence, however, suggests that he very likely would have been able to make the flight. It would reasonably have taken some two hours for the flight,to arrive inToronto and for Mr. Elhadad to travel to his hotel and freshen up. Accordingly, had Mr. Elhadad taken the 7:30 flight, not.only would he have been an hour and a half late for his meeting with Miss Laycock, but a late start to the - meeting would have meant that the meeting would likely have gone beyond'a reasonable quitting time. .Given these considerations, we do not view the 7:30 p.m. flight as having been a reasonable option for Mr. Elhadad. Two.other employees who pa,rticipated at the hearing on August 19th left Ottawa on the 1O:SO flight on August 18th, and met with Miss Laycock on the morning of August 19th prior to the commencement of the Grievance Settlement Board hearing at 9:30 a.m. Given the extensive time required for'the discussions between Miss Laycock and Mr. Elhadad, however, as well as the fact that Miss Laycock had already arranged to meet with two employees the day of the hearing, it would not have been reasonably possible for Miss Laycock and Mr. Elhadad to also meet on the morning of August 19th. > . . . . ‘. -6- Given all of the above, we are satisfied that i whether ,he drove or flew, in order for Mr. Elhadad to be reasonably certain that he would be able to be in Toronto in reasonable time for him to meet with Miss Laycock to discuss the matters .relating to the Grievance Settlement Board hearing, he had to leave work before the end of his shift on August 19th, albeit had he flownhe would not have had to leave as early as 1:30. As already noted, the Ministry .accepted that Mr. Elhadad was a grievor required.to be in attendance at the Grievance Settlement Board on August 19th. Accordingly, the only remaining issue to be decided is whether article 27.7.1 of the collective agreement entitled Mr. Elhadad to be paid for the time he was off work on August 18th in order to meet with Miss Laycock to assist her in preparing the~case the union was to present before the Board. It is important to keep in mind that this is not - a case where an employee had to take time off from work so as to travel to a Grievance Settlement Board hearing. It is clear that Mr. Elhadad could have worked his full shift on August 18th and without much difficulty reached Toronto in - time for the Board hearing. Be required time off on August 18th only so that he could meet.with Miss Laycock. We have considerable sympathy for Mr. Elhadad. He took time off from work so as to assist the union to prepare.for a Board hearing. Article 27.7.1 and certain - - 7 - other articies in the collective agreement ensure that in, other circumstances employees will not lose any pay or ' benefits as a result of being involved with a grievance. However, the question we have to decide is whether article 27.7.1 can reasonably be interpreted to cover the.situation at hand. We do not believe that it can. Article 27.7.1 relates to hearings before the Grievances Settlement Board and an employee required to be inattendance at,a hearing. The most. reasonable interpretation that can.be given to the article is that it covers an employee who must miss work to _ attend at a Board hearing. Although we need not,decide the issue on the facts of this case, the article might well cover the situation of an employee who must reasonably take time off from work in order to~travel.to a Board hearing. We do not, however, believe that it can reasonably be interpreted to cover time to be used directly or indirectly to assist the union in preparing its case for presentation before the Board. If an employee.is to be entitled to leave of absence with pay without loss of benefits for such a purpose, it would require an ame‘ndment to the collective agreement. Having regard to the foregoing, the grievance is hereby dismissed. Dated here at Toronto, Ontario this 26th day of August 1985. I. C. Springate