GSB #0698/01
Union #01B227
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees’ Union
(Thurman)
Grievor
-and-
The Crown in Right of Ontario
(Ministry of Health and Long-Term Care)
Employer
BEFORE Janice Johnston Vice-Chair
FOR THE GRIEVOR Tim Hannigan
Counsel
Ryder Wright Blair & Doyle
Barristers & Solicitors
FOR THE EMPLOYER Len Hatzis
Counsel, Legal Services Branch
Management Board Secretariat
HEARING February 28, 2002
THE FACTS
This case concerns the denial of one day of special or compassionate leave. The grievor, Avery Thurman, works as a Registered Nurse at The Whitby Mental Health Centre. She has been employed at that location since 1989 and has worked in a full-time capacity since 1994. The relevant language in the collective agreement reads as follows:
ARTICLE 48 - BEREAVEMENT LEAVE
48.1 An employee shall be allowed up to three (3) days' leave of absence with pay in the event of the death of his or her spouse, mother, father, mother-in-law, father-in-law, son, daughter, stepson, step-daughter, brother, sister, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, grandchild, ward or guardian.
48.2 An employee who would otherwise have been at work shall be allowed one (1) day leave of absence with pay in the event of the death and to attend the funeral of his or her aunt, uncle, niece or nephew.
48.3 In addition to the foregoing, an employee shall be allowed up to two (2) days' leave of absence without pay to attend the funeral of a relative listed in Articles 48.1 and 48.2 above if the location of the funeral is greater than eight hundred kilometres (800 km) from the employee's residence.
ARTICLE 49 - SPECIAL AND COMPASSIONATE LEAVE
49.1 A Deputy Minister or his or her designee may grant an employee leave of absence with pay for not more than three (3) days in a year upon special or compassionate grounds.
49.2 The granting of leave under this article shall not be dependent upon or charged against accumulated credits.
On Monday June 18, 2001, Ms. Thurman found out that her cousin, Joe Farley, had passed away and that the funeral was to be held on Wednesday June 20, 2001. Ms. Thurman was scheduled to work on the midnight shift that week, which meant that she worked from 11 p.m. to 7 a.m.
Ms. Thurman testified, and it was not disputed by the employer, that she had a very close relationship with her cousin. She spent a great deal of time with him and he helped her family out on many occasions. Her cousin was particularly kind and helpful when her mother died and again upon the death of her father.
Upon learning of the death of her cousin, the grievor telephoned in to work and advised them that she would not be working her shift which commenced at 11 p.m. on Tuesday, June 19, and finished at 7 a.m. on Wednesday, June 20. She indicated that she needed to take the shift off to sleep, as she could not go to the funeral if she worked her night shift. However, she did report for and work her scheduled shift which started on Monday evening and ended on Tuesday morning.
On Friday, June 22, 2001, the grievor filled out and submitted a Leave of absence request/authorization form which indicated that she was seeking one day’s discretionary leave for the following reason:
I would like to have a discretionary day for Tues June 19/01 as one of my closest and dearest cousins died and I need that night off so I could attend his funeral on Wednesday June 20/01 in Toronto. Thanks.
The grievor pointed out that she requested compassionate leave as pursuant to the collective agreement she did not qualify for a bereavement leave. In her view, compassionate leave was appropriate as her cousin’s death was very upsetting to her and she wanted to attend the funeral. Later the same day, the grievor’s request for special/compassionate leave was denied by Ron Ballantyne, the Administrator at the Health Centre. Prior to reaching the decision to deny the request, Mr. Ballantyne did not speak to the grievor or attempt to obtain any information other than that contained on the form.
On a previous occasion in 1997, the grievor requested and was granted special/ compassionate leave when she was delayed in reporting for work because her car had been broken into. The grievor also requested and was granted bereavement leave upon the death of her father. Although she could have requested bereavement leave at the time of an uncle’s death, she did not do so.
Ron Ballantyne has been the Administrator at the Whitby Mental Health Centre since 1988. In this capacity, it is he who has the discretion to approve or deny requests for special/compassionate leaves. He deals with about fifty to seventy-five requests per year. The Health Centre has in place a policy entitled Handling Special and Compassionate Leave Requests, which provides guidelines to be considered in the granting of these leaves. Mr. Ballantyne considered the policy and the guidelines it contains in reaching a determination with regard to the grievor’s request for leave. The relevant portions of the policy provide as follows:
As a manager, what decision rules do you apply in reviewing an employee’s request for special or compassionate leave? You’ve probably heard that such leave should only be granted under extraordinary circumstances. But what amounts to extraordinary circumstances? In this issue of FOCUS we’ll provide you with guidelines to facilitate decision making and maintain consistency throughout the hospital. Keep in mind, however, that since a number of variables may be involved in any given case, each request must be weighed on its own merits. ...
Decision Making Guidelines
Although Article 55 and Section 74(1) give management wide discretion in deciding whether to grant special leave, this discretion must be exercised reasonably. Intuitively this makes sense, but all the more so since management’s decision is open to scrutiny by the Grievance Settlement Board (and for management and excluded employees, the Public Service Grievance Board).
A review of the case law on this subject reveals a number of principles to apply in reviewing special leave requests:
The decision must be made in good faith, free from arbitrariness and discrimination, i.e., the discretion must be exercised reasonably. While arbitrators are generally reluctant to question the correctness of management's decision, they must ensure that decisions are made within certain minimum standards of justice.
The decision must be a genuine exercise of discretionary power, as opposed to rigid policy adherence. As one arbitrator stated, “While uniformity and consistency of application of the collective agreement is desired, such consideration should not be utilized to the exclusion of a full and fair consideration of the employee's particular circumstances.”
Full consideration must be given to the merits of the individual application under review. By the same token, however, the employee bears a commensurate responsibility to make all pertinent facts known. Thus, the employee bears the onus to show entitlement to special leave.
Management must make reasonable efforts to gather relevant facts while rejecting irrelevant facts. With respect to irrelevant facts, the availability of other means of taking leave, such as access to unused vacation credits, should not be a consideration (as per Article 55).
Management must act consistently with the decision that was made. In other words, similar cases should be treated alike.
Let's now address the question of what amounts to extraordinary circumstances. Here are a few often cited considerations to take into account:
The needs of the workplace (e.g. staffing and operational requirements).
The importance of the request to the employee and the hardship caused by denial.
In family matters, the nature of the relationship and the urgency of the call on the employee's services by family obligations.
Whether the event was a personal emergency/unforeseeable (this is not mandatory though).
Whether it was possible or appropriate for other arrangements to be made by the employee.
The following are a few examples of circumstances in which special leave would normally not be applicable:
-extension of bereavement leave
-adverse weather conditions
-car break-downs
-medical appointments
-legal matters
-attending special courses or writing examinations
-religious holidays
Nonetheless, there may be exceptions in extraordinary circumstances; management is obliged to fully consider the merits of each case, thus avoiding rigid policy adherence.
Although the policy provides that in normal circumstances discretionary leave should not be used to extend bereavement leave, Mr. Ballantyne indicated that this is not a rigid rule and that in some situations extensions were granted. He cited as examples situations in which: an employee had to travel to England to assist when suspicious circumstances surrounded the death; an employee had to travel a long distance for the funeral; and a case in which an employee needed additional time off to make nursing home arrangements for the surviving parent.
In determining cases in which an extension to the bereavement leave provisions in the collective agreement were sought, Mr. Ballantyne indicated that an assessment of the individual facts in every case was critical and that prior to granting an extension he looked for special or compelling circumstances or in the words of the policy ”extraordinary circumstances”. If the situation warranted it, Mr. Ballantyne would consider extending the time of the bereavement leave (i.e. more than the one or three days provided in the collective agreement) or the people for which a bereavement leave could be granted (i.e. for someone not covered by the collective agreement).
Mr. Ballantyne was the individual who granted the discretionary leave to the grievor when her car was broken into in 1997. He did so in that case for several reasons. He did it because the grievor was on her way to work when she discovered a situation which she couldn’t have anticipated, was shaken and upset, had to cancel her credit cards and had deal with the police and her insurance company.
Prior to approving or rejecting a request for special/compassionate leave, Mr. Ballantyne tries to ensure that all of the facts relevant to the request and necessary to enable him to make an informed decision are available to him. On occasion, he has sought additional information from the employee making the request, but in this case as he felt Ms. Thurman had already provided him with all the information he needed he did not speak to her prior to making his decision.
In coming to the conclusion that it was not appropriate to grant Ms. Thurman special/compassionate leave in this case, Mr. Ballantyne considered the shift schedule Ms. Thurman was working and the time between when she was scheduled to work and the funeral. As there was sufficient time between when she had to work and the funeral in this case, the situation was not “extraordinary” in his view and did not justify the use of special/compassionate leave. Had there not been a reasonable period of time between when she was scheduled to work and the funeral, or had the funeral conflicted with a time when she was scheduled to be working, Mr. Ballantyne would have viewed the situation differently. In this case, he felt that she could have worked her shift and then attended the funeral. At a more general level, Mr. Ballantyne also considered the need to maintain appropriate staffing at the Health Centre in light of the fact that it was a twenty-four-hour-a-day operation.
On July 6, 2001, the grievor filed a grievance questioning management’s denial of her request for special/compassionate leave.
DECISION
In reviewing the situations which warrant the granting of compassionate leave by management, the cases generally articulate that it is appropriately utilized when an employee is in a situation deserving of sympathetic treatment or makes a request in extraordinary circumstances which merit sympathetic treatment (see in this regard Elesie and Ministry of Health, GSB #24/79 (Swinton) (the “Elesie case”) and Sahota and Ministry of Correctional Services, GSB #2454/87 (Verity) (the “Sahota case”)).
There is no doubt that in this case the grievor lost someone who was very close to her and that this loss was very upsetting to her. The employer did not dispute the fact that the grievor had lost one of her closest and dearest cousins. Mr. Ballantyne was sympathetic to her loss and never questioned the sincerity of her request. However, the fact that an employee is in a situation deserving of sympathetic treatment does not automatically result in the granting of a compassionate leave request. Although in a sense it may be a threshold factor, it is only one of many factors appropriately considered by management.
The employer accepted and I agree that in exercising the discretion found in article 49 of the collective agreement, it must comply with the criteria which are set out in its policy on handling special/compassionate leave requests. In other words, the employer must make a decision in good faith, free from arbitrariness and discrimination. The employer must exercise its discretion in a reasonable manner having regard to the individual merits of each case and not simply resort to a rigid application of policy. An effort must be made to obtain all the relevant facts prior to making a decision and management must endeavour to act consistently in similar cases.
In considering the decision of management, the appropriate standard of review to be applied by an arbitrator to the decision making process is that of reasonableness.
An arbitrator should consider the reasonableness of the process that led up to the decision which was made by management. It is not my role to substitute my views for that of management or enter into an assessment of the correctness of the decision even if I might have come to a different conclusion (see in this regard Young and Ministry of Community and Social Services (1979), 1979 CanLII 3955 (ON LA), 24 L.A.C. (2d) 145, O’Brien and Ministry of Correctional Services, GSB #1157/86 (Gandz), Malyon and Ministry of Revenue GSB #1129/88 (Roberts), the Sahota case and the Elesie case.)
In this case, the grievor is seeking to utilize special/compassionate leave to deal with a situation that is not covered by the bereavement leave provisions of the collective agreement, namely the loss of a cousin. The Grievance Settlement Board has dealt with requests to extend the bereavement leave provisions in the past. These cases start by observing that the parties have distinguished between the two types of leaves in their collective agreement and go on to conclude that because the parties have specifically turned their minds to and articulated a list of situations in which bereavement leave is appropriate, the provisions of the bereavement leave clause should be extended only in exceptional or extraordinary circumstances (see in this regard Henry and Ministry of Revenue GSB #1116/88 (Emrich), Jackson and Ministry of Correctional Services GSB #146/84 (Kruger) and McNally and Ministry of Health GSB #2176/91 (Gray)).
Although it is not possible to precisely define the meaning of extraordinary or exceptional circumstances, the employer has put together in its policy on special and compassionate leaves a list of often cited considerations which individual managers should consider in assessing this type of request. I agree that the list set out on page four of this decision (as a part of the quote) includes factors appropriately considered by management in cases of this nature. It is not an exhaustive list nor does management assert that it is or should be.
In deciding that the grievor’s request for special/compassionate leave should be denied, Mr. Ballantyne carefully assessed the facts specific to this case and determined that there were no extraordinary or exceptional circumstances present so as to warrant an extension of the bereavement leave provisions. Mr. Ballantyne considered the shift schedule the grievor was working and the time between when she was scheduled to work and the funeral. At no time did the grievor assert that her scheduled hours of work prevented her from attending the funeral. She testified before me that she needed special/compassionate leave for the shift which commenced at 11 p.m. on Tuesday, June 19, and finished at 7 a.m. on Wednesday, June 20, (the day of the funeral) so that she could sleep prior to attending the funeral. Mr. Ballantyne concluded that special/compassionate leave was not warranted in the circumstances. Given the situation, that was a reasonable conclusion to have reached.
The union took the position that the employer should have investigated the circumstances giving rise to the grievor’s request more fully prior to determining the appropriateness of it. It was argued that by not seeking elaboration on the exact nature of the relationship between the grievor and her cousin, or further detail on the written request submitted by the grievor, that management failed to consider all of the relevant and material facts and therefore acted unreasonably in denying her request. I disagree with this characterization of the process. There was no dispute on the part of management with regard to the legitimacy of the grievor’s request or the genuineness of her grief. There was therefore no need to garner additional information on the exact nature of the relationship between the grievor and her cousin.
In cases of this nature, management must fully consider the merits of each request and cannot adopt a rigid or rote response. There is no preset formula that says what constitutes a proper investigation or exactly how the decision must be made. Nor is there a requirement for the decision maker to meet individually in every case with the employee making the request for special/compassionate leave. I am satisfied that Mr. Ballantyne’s decision was based on relevant information and that his decision making process was reasonable.
For all of the above reasons, this grievance is dismissed.
Dated at Toronto, this 6th day of May, 2002.