GSB# 1438/02
UNION# 2002-0121-0008
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Neeb)
Grievor
- and -
The Crown in Right of Ontario (Ministry of Finance)
Employer
BEFORE
Randi H. Abramsky
Vice-Chair
FOR THE UNION
Don Martin Grievance Officer Ontario Public Service Employees Union
FOR THE EMPLOYER
Richard Novak Labour Relations Analyst Ministry of Finance
HEARING
January 17, 2003.
AWARD
The grievor, Gwendolyn Neeb, alleges that the Employer improperly denied her request for three days of leave with pay pursuant to Article 49 of the collective agreement.
Article 49.1 states:
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.
Facts
The facts show that on May 8, 2002, the grievor submitted a request for vacation leave for the period June 14, 2002 to June 25, 2002. That request was approved by the grievor’s manager and staff were scheduled to accommodate the grievor’s vacation request.
At the time the grievor made her vacation request, she was aware that her manager was taking a leave of absence, beginning in mid-June. According to the grievor, she requested her vacation dates to avoid, if possible, working with a co-worker with whom she had experienced difficulties, without the manager being present. Management was unaware of the reasons behind the grievor’s vacation request, but it was aware of the personality conflict between the two employees. According to the Employer, it took steps at the time and continues to take steps to address this conflict.
Subsequently, the grievor came to believe that the co-worker in question would be temporarily acting as the supervisor until an acting manager could be found. Management contends that the employee’s role was non-supervisory and that this was discussed with the grievor at the time.
On June 21, 2002, during the grievor’s vacation, she went to the office and discovered that an acting manager, Ms. Tait, was in place. On June 28, 2002, after her return to work, the grievor requested that the last three days of her vacation – June 21, June 24 and June 25, the dates which occurred after her discovery of a new acting manager – be treated as paid leave under Article 49 of the collective agreement.
The grievor’s written request states that the request was due to a “poisoned work environment” and that she would have come back to work for June 21, June 24 and June 25 if she had been informed that a new manager would be in place. At the time she left on vacation, the Employer had not known when the new manager would be starting.
According to the Employer, management discussed the grievor’s request and the reasons for it and considered all of the relevant facts based on their knowledge of the circumstances and decided to deny the request.
Positions of the Parties
For the Union:
Citing OSPEU (Malyou) and Ministry of Revenue (1989), GSB No. 1129/88 (Roberts), the Union argued that management must exercise its discretion under Article 49 “reasonably”, which means:
The decision must be made in good faith and without discrimination.
It must be a genuine exercise of discretionary power, as opposed to a rigid policy adherence.
Consideration must be given to the merits of the individual application under review.
All relevant facts must be considered and conversely irrelevant considerations must be rejected.
(p. 3, citing Re Kuyntjes and Ministry of Transportation and Communications (1984), GSB No. 513/84 (Verity) at p. 16)
The Union asserts that the Employer provided the grievor with no explanation for its decision at the time, nor at the hearing and thus failed to satisfy the standards for exercising its discretion reasonably.
For the Employer
The Employer asserts that all of the criteria set forth above were satisfied in this case. It submits that the grievor’s request to substitute her vacation days for paid leave days, based on a personality conflict, did not merit the granting of such leave.
Decision
Based on the facts presented, I conclude that the grievance should be dismissed. The reasons set forth by the grievor for her request – that she learned that a new manager had been appointed – do not constitute “special or compassionate grounds” within the meaning of Article 49. Her discovery that a new manager had been appointed changed the circumstances upon which her original vacation request was made. But that change does not mean that the Ministry exercised its discretion unreasonably when it denied the grievor’s request to convert the last three days of her vacation to paid special and compassionate leave under Article 49.
The evidence shows that the Employer fully considered her request and the reasons for it. There is no evidence that the decision was not made in good faith or made with discrimination. There is no evidence that irrelevant factors were considered. Accordingly, the standards set forth in the cited case law were met. Although it may have been preferable for the Employer to explain its reasons, there is no requirement that it do so. The only requirement is that the Employer exercise its discretion reasonably and in good faith.
For these reasons, the grievance is dismissed.
Issued at Toronto this 31st day of January, 2003.