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HomeMy WebLinkAbout1984-1273.Lacourse.87-05-05IN THE MATTER OF AN ARBITRATION UNDER THE CROWN EKPLOYEES COLLECTIVE BARGAINING ACT BEFORE THE GRIEVANCE SETTLEKIWI BOARD Griever Employer BETWEEN: OPSEU (P. Lacourse) -and- THE CROWN IN RIGHT OF ONTARIO ~(Ministry of Correctional Services) .I. Gandz Vice-Chairman G. Nabi Member G. J. Milky Member A. Ryder, Q.C. COUllSel Gowling & Henderson J. Hannah Senior Staff Relations Officer Wnistry of Correctional Services April 16, 1987. FOR THE GRIEVOR: FOR THE EKPLOYER: HEARING: . ! -2 - DECISION On July 6, ,1984, Mr. Paul Lacourse, a Correctional Officer (2) at the Hamilton Wentworth Detention Centre, filed a grievance which stated that: "I grieve that I was denied compassionate leave on May 18, 19, 1984. I was also denied sick leave although I was unable to attend to my duties for said dates." 'The settlement desired states: "that I be granted compassionate leave. Failing this, I be granted sick leave and that my annual holidays used for this period be returned." On May 14, 1984, while working a day shift, the grievor was telephoned by his mother at 2:30 p.m. to advise him that his grandmother.had passed away that afternoon. He immediately . . sought and obtained permission to go home, pick up his mother, and travel to Mount Hope where his grandmother had been resident. The grievor subsequently remained off work for Tuesday, May 15, which was counted as a day of bereavement leave, and Wednesday and Thursday, May 16 and 17, which were scheduled regular days off for him. On Friday, May 18, Mr. Lacourse was scheduled to start an afternoon shift at 2:45 p.m. He was, however, extremely upset - as was his mother. Mr. Lacourse testified that he was extremely close to his grandmother who, following the separation of his own parents, had moved in with he and his mother, and had in many ways acted as a substitute mother while hi,s own mother was out at work. - 3 - Mr. Lacourse testified that he phoned in to the detention centre around lunch time and asked to speak to his super- intendent, Mr. Phillipson. Mr. Phillipson was not in, and he spoke instead to Bob Cole, the deputysuperintendent at the time. He explained the situation, stated that he was upset and didn't feel that he could come in to work. Mr. Cole told him that he could take Friday and Saturday off; and said "we'll worry about it when you come back". This action was characterized by-the grievor as being reasonable for the Employer. to take. In effect, the Employer did not discuss with the grievor how these two.days, the Friday and Saturday, would be accounted for since the griever was in a state of grief and upset. Instead, the Employer gave permission for th.e,two days to be taken, and postponed the decision about how to account for them. The grievor took the two days off work and returned Sunday, May 20,~for a scheduled afternoon shift. On the Monday he spoke to Mr. Phillipson, explained the situation to him, and asked ~- whether the days could be counted as compassionate leave. According to the grievor's testimony Mr. Phillipson said that he foresaw no problem with this and as far as he was concerned the grievor could have the two days compassionate leave. Later that week, Mr. Lacourse testified that he was advised by Mr. Bevan; the Local 248 President, that his absence on those days had~been recorded as "holidays". The grievor went to the Personnel clerk on Tuesday or Wednesday, who then said that she couldn't change that until she had heard from Mr. Phillipson. He then went to -4- see Phillipson subsequently, and Phillipson told him that those two days would be counted as either statutory holidays, or two days without pay, or two days of vacation because he did not want to "set a precedent". Following this conversation, the grievor wentto see Mr. Phillipson a third time to state he was disappointed. He told Phillipson that he'was unfit to work on those days and asked if he could use his sick leave benefits. This was apparently the first time that sick leave was raised by Mr. Lacourse. Mr. Phillipson denied this~ request on the basis that, despite the fact that he was upset, the grievor was not actually sick at that time. Mr. Phillipson's account of this episode is substantially different. He states that May 22 was the first day that Lacourse spoke to him about th.is, incident. Mr. Phillipson characterized this May 22 meeting~as amicable and, during this discussion, the grievor had in fact asked if Phillipson would consider the Friday and Saturday days off as either sick leave or compassionate leave. Phillipson said that he discussed the background with the grievor and that he would ge'cback to him at a later date with his decision. Apparently, according to Phillipson, during the conversation the grievor stated that the lady who passed away wasn't really his grandmother but had acted as one when his mother was at work. Furthermore, the grievor had suggested that there was an entitlement for three working days of bereavement leave; as opposed to three calendar days. When asked what his objections were to using his vacation credits or statutory holiday credits to cover the time he had taken off work, the i -5 - $ grievor said that he ,wanted to save the time off for a planned trip to Montreal. Phillipson testified that he did not agree that the grievor could have compassionate leaver; but only that he would consider it. Phillipson testified that he subsequently met with Lacourse on June 6, having first reviewed the operational guidelines issued by the Ministry of Correctional Services to cover the use of compassionate leave. These operational guidelines are attached to this award as Exhibit 1. We note, however, that the operational guidelines explicitly state: "normally however the provisions of Article 54 (Special and Compassionate Leave) are not applied in the following circumstances: - religious holidays * weather conditions : extension of bereavement leave / * etc." Furthermore, Phillipson testified that he had considered the facts of the situation carefully and, in particular, the statement within the Special and Compassionate Leave Provisions Policy that "in family matters the nature of the relationship and the urgency of the call'on the employee's services by family He also obligations" could be a ground for compassionate leave. considered the institution practice and that, while superintendent, he had never granted this type of leave in the past to extend bereavement. Furthermore, he discussed'the grievor's situation with Mr. Wallen, the Regional Personnel Administrator. Mr. Phillipson testified that, based on his careful consideration of the circumstances and the needs of the i. -6- institution and the policy, he felt that Mr. Lacourse was in fact asking for an extension of his bereavement leave, and that it was inappropriate to use Special and Compassionate Leave provisions in order to do this. On June 6, he met with Lacourse and gave him the decision. Mr. Lacourse apparently thanked him and stated that he would get back to Phillipson to see if her would grieve. Lacourse also stated that he would in fact~use two vacation credits to cover the absence. Phillipson ~testified that there was no further discussion and no grievances was filed. What then occurred amounts to a rather strange series of events. Having completed~his grievance form, Mr. Bevan took the form to a Mr. Pohlman. Mr. Pohlman, a bargaining unit member, was an acting lieutenant and.was acting in fact as the grievor's immediate supervisor at that time. According to Mr. Bevan's testimony, he took this grievance to Pohlman with reservations because Pohlman,was a bargaining unit member. According to Bevan's testimony he spoke first to Phillipson about this, and Phillipson told Bevan to give the grievance to the shift supervisor. Bevan said that he argued about this with Phillipson, but that he was instructed~,to give the grievance to Pohlman. *This testimony of Bevan completely contradicts the testimony of Phillipson. Phillipson stated that he never really knew that a grievance was being filed. He agreed that there was a rumor that a grievance was being filed, but that a grievance had never in fact been received by him. Indeed, Mr. Phillipson, testified thathe had never seen the grievance until the day of this arbitration hearing. Furthermore, Phillipson testified that he could never recall discussing Mr. Pohlman's role with Mr. Bevan, but that he would in any case expect the acting supervisor to fulfill the role of the supervisor. Mr. Phillipson also testified that Mr. Pohlman did'not discuss any grievance with him, nor was there any discussion between him and Pohlman as to whether the days in question should be considered compassionate leave. Over the objection of counsel for the Ministry, a memo was entered into evidence dated July 12, 1984. This was, apparently, written by Mr. Pohlman 'to Mr. Lacourse. In this Mr. Pohlman states that: "compassionate 'leave is only provided if ~anemployee does'not have other credits available,- i.e. vacation, lieu days, etc. which would possibly create a financial burden. When there are other credits available they may be employed in order to honor your request in recognition of your grievous, state. As for your requesting these days be credited to sick leave, this could not be honored since your request does not fall under the conditions of sick leave." We note that this letter from Mr. Pohlman to Mr. Lacourse is not on any official letterhead nor are the initials of the typist known to Mr. Phillipson. However, we also note that the Ministry is prepared to acknowledge that this does constitute an official response given at the time to the grievance filed'by Mr. Lacourse. Mr. Phillipson testified that he had never seen either .L, the grievance or this letter by Mr. Pohlman until then hearing. Furthermore, Phillipson testified that the paragraph in Mr. Pohlman's letter quoted above was not the official position of _ -8- the institution and was not the basis on which his decision was made. In other words, the letter written by Lacourse was, in Phillipson's view, unauthorized and an inaccurate representation of Phillipson's position on the matter. Mr. Bevan further testified that at the sta&two grievance meeting he presented this letter from Mr. Polhman to Mr. Lacourse, but that it was not discussed. In any case, Mr. Phillipson was not at the second stage grievance meeting. The Union argued that even if Mr. Polhman's statement of the reason for denying compassionate leave is inaccurate, the .;;- Employer is still stuck.with it since it represented a response to a grievance by a person who was acting as a supervisor. The union argued the general case that the Employer is stuck with the response of its supervisors; and that management cannot now say that the reasons given in this response were wrong and substitute new reasons. The Union argued that Pohlman was authorized to speak for management and that the grievance procedure requires reliance on the stage one reply. Furthermore, the Union points out that if there was an error in the stage one reply, it should surely have been corrected at stage two of the grievances procedure. The Union argued that if management is entitled to repudiate this position it is only if there is some fraud involved, and that in the absence of fraud a very heavy onus rests on management to show why they should do so. The Union also stated that Phillipson must have been aware that, a grievance was filed, despite the testimony of Mr. Phillipson to the contrary. The - 9 - Union argued that the reasons g,$ven by Polhman in the letter to Lacourse actually represented the basis of Phillipson's decision, despite the fact that such a decision rule is expressly forbidden by Article 55.2 of the collective agreement which states "the granting of leave under this article shall not be dependent upon or charged against accumulated credits." The Employer argued that the response from,Polhman to the grievance is in fact irrelevant and that little weight should be afforded to it. They note that it was Phillipson who made the decision-and that the decision was clearly made by Phillipson follo$ing face-tolface discussion on two occasions with the grievor, and that it was management exercising its discretion bearing in mind the full circumstances of the case. Furthermore, the Employer argued that it is clear that Article 55.1 of the collective agreement states that "a deputy minister or his designee may grant an employee a leave of absence..." and that the "may" clearly implies discretion being exercised. The Employer argued that it is not up to this Board to interfere with the basis of thins decision, but only to ascertain that it was made in a good faith manner bearing in mind the particular circumstances of the case. Furthermore, the Employer noted that there was never any evidence that Phillipson actually used the decision rule articulated by Pohlman in his letter to Lacourse. The estoppel argument was, according to the Employer, basically a red herring. There was no detrimental reliance by the Union on Poh1man.s reply and, furthermore, the Union was fully aware of the policy with respect to extension of - 10 -' bereavement leave through the use of compassionate leave because of previous cases. There is no doubt in our minds that Mr. Lacourse is attempting to get an extension of a bereavement leave through the use of compassionate leave. The incident was clearly one of bereavement, the grievor was, without question, given the remainder of his shift off from work and the following day was considered as bereavement leave. This occurred despite the evidence of Mr. Phillipson that he was.in some doubt as to whether the person who passed away was a true relative of the grievor or was simply someone with'whom he had a very close relationship. Furthermore, we consider the request for sick leave to be merely a convenient alternative way for the grievor to obtain extension of bereavement leave. We found Mr. Phillipson to be a credible witness. From his testimony and that of the grievor, Phillipson was directly involved in making this decision and he did so following at least one and perhaps two meetings with the grievor. We also accept; .as reliable testimony, Mr. Phillipson's evidence that he did not discuss the issue with Pohlman and thathe was unaware of Pohlman's response to the Union. We note that Mr. >Pohlman was not called as a witness either by the Employer or by the Union in this situation, but recognize that it would have been difficult. for the Employer to have called a bargaining unit member as a witness in hearings such as-this. We also accept the general ruling in Da Costa (570/84) that it is not the job of a board of - 11 - arbitration to substitute its exercise of discretion for that of management in discretionary matters such as these, but that 1, . . . the essential idea is that an arbitrator is not to ask whether or not management was correct in its decision. Management has the right to make the wrong decision. But management's decision-making must be an honest exercise in managing the undertaking, and no more." We are satisfied that Mr. Phillipson made the decision and that his decision was made bearing the circumstances and facts of ~. the grievor's bereavement into account. 3 This leaves the question as to whether the grievance should succeed abased on the letter from Pohlman to Lacourse. Since the actual decision was made by Phillipson we must either believe Phil1ipson.s testimony about the grounds on which he made it, or believe that Pohlman accurately reflected the actual basis of the decision that Phillipson used at the time.' In other words, we would have to. find that Mr. Phillipson is lying about the basis on which he made the decision. We do not find this to be the case. We found that Mr. Phillipson's testimony was credible and we note that Mr. Pohlman was not available to make any kind of statement, other than in this letter, aboutthe basis of the decision. We note that the Union had an opportunity to call Mr. Pohlman, as indeed had management. As for the argument that management should be estopped by Mr. Pohlman's actions, we cannot accept this. There was never any evidence that the Union relied on Mr. Pohlman's answer to the grievance to any detriment to the grievor. In other words, the grievor took no action based on.Mr. Pohlman's reply which subsequently affected his rights under the collective agreement. - 12 - If Pohlman was wrong in his portrayal of the reasons for denying the compassionate leave, his being wrong had no impact on the grievor whatsoever. Furthermore, we note that the Ministry's position with respect to the use of compassionate leave following .a bereavement has been clearly articulated in Jackson (146/84) and Jackson (487/83). The Ministry's, approach, used in both Jackson cases and in the instant case, is to accommodate an employee's needs for time off resulting from bereavement - including time not _ covered by the bereavement leave provision - but to treat these cases as ,t+me off or leave without pay. It seems to us that for the Union to say that it has subsequently-relied upon Pohlman's letter as the articulation of the decision rule in this case is an attempt to exploit a slip-up by an acting supervisor. To do . . so would, in our view, be inappropriate given the evidence we have as to the reasonable way in which Mr. Phillipson approached this decision. Therefore, the grievance is denied. Dated at London, Ontario, this 5th day. of May, 1987'. G. Nabi Member EXHIBIT 1 0 4 750-333s Nerch 10, 1981 I4CtIORAhQUtl TO: Deputy Minister Lofutin, Directors BrMch Hsads Regions1 Directors, Inetftutionel Pmqrmes Regional Atiinistrators, Probation & Parole Superintendents, Institutional Proqwtxs Awe ne"egme Personnel Atinietratorc ' Ficgional Training Advisors N: SPECIAL h CO!4PASSIONATC LCAVE PRflVISI~% In light of nc+iato;l changes to Article 54 (S,xhhol & Co;~l;l3ssionate Leave) of the Collcctivc Aqrecmont thcrc is J need t? stotc, oorc clccrly tiw a:,:,liclrtiun uf its ,qrovision s in order to maihtairl consiztcncy through- rlut tlx IFinistry. ~lthnw]h Article 51 an3 Section W(l) of the Gcqu:;ltions unJ?r the Public Scrvicc Act gives the elrployer wide diocrction in deciding wilether to CJrant Special' Or CO~aSsiomte kw?, this discretion wst bc exercised in o rcnsonobJe and nondiscriminetory manner. It is cxtrcnely difficult, oe you can well understand, to reduce the &xcpt of "rcasnrtibleness" to a singlo forrrvla or set of instructiofia which ten be easily applied in *wry ceso. In the firm1 analysis, management wet give full and proper consideration to the particular merits of cxh epplication for special and compassiorete leevc before deciding to qrant or deny t1.x: lcsvc. ;:it.hout limiting tho qonerolity of the furcugoinq, xvi do]lentlinq on the particular circumstances, the following type6 of considerations mey be taken into account: 1. The needs of the work plocc (eq. staffin{; iln.1 o,~eratiwul requirewmts) 2. The i:qxtancc of the request to the wqloyce ;;n1 the i,ir:lship ceeeed by dcninl 3. In family matters, the nature of the relotion8hip and the urgency of the call on the employee’s services hy family ohliqetions 4. tll&ller it was possible or oppropriatn for other arronrrewnts to be mado hy the employee. 5. Whether the de&l or granting of thi l&we would conetitute e iorm of discrimiwtion, i.e. similar caeee bhould he treated alike Normally, however, the provisions of Article 51 are not applied in the follbning circumetalces: . - religicua holidqe - .+eathcr conditions - self devel~mmt & written examinations - an artenbion of wternity leovc - ne~atory referrals - eickmee of family &re (subject to above mentioned circumetancee~ EXHIBIT 1 - Cont'd , * .: ’ 1 -2- - weddings - moving - leqsl Mttern - nttandinq graduntions for these s&tuetions, e~~~loyees may, of course, request e leeve of ebesncs under other articles of the Collective Agrcomcnt, i.c. lieu days, vacation, lseve *itJaJt pay, etc., but the provisions of Article 54 pr Section 80(l) of the Regulstio~ would normally not be.appllceblo. Meeegers are obliged to nake s sarioua end diligent enquiry into the fncte of each csss before rendering s decision to grnnt P lcavc of absence under Article 54 or Section 80(l) of the Regulations end to consult with Ror;ional Personnel Admlniotrators before such R lesve in r~mntnd. Copies of the n~~~lnyec'n written-request for such leave and the nanogur’r; docioion (Laove of IIbsonce Form) are to bc rstained on the n!vloynrr'n local personnel file fnr H!lllit pu~oaco. TI,ia twmnorandu.~ wperxdns that of llctoter 30; 1?79. I'lc:~cr!.plxc~it in ttio llinistry Pbrsonncl Ilanual, Section Ei tmploycc Hcnnfilp. c