GSB#2002-2321

UNION#2002-0202-0014

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Perretta)

Grievor

• and -

The Crown in Right of Ontario (Ministry of Finance)

Employer

BEFORE

Jules Bloch

Vice-Chair

FOR THE UNION

Mark Barclay Grievance Officer Ontario Public Service Employees Union

FOR THE EMPLOYER

Helen Ecker Labour Relations Consultant Ministry of Finance

HEARING

July 28, 2003.

DECISION

1. This matter was listed for hearing in Toronto at the Grievance Settlement Board (GSB) on July 28, 2003. The parties’ entered into minutes of settlement and agreed to a process whereby I would determine this matter by way of agreed statement of fact ( Schedule “A” attached) and the parties’ submissions.

2. On November 10, 2003 I received the last of the parties submissions.

3. Mr. Joseph Perretta, the grievor herein, is employed by the Ministry of Finance as a Tax Auditor 2. He requested a half day of special and compassionate leave on or about November 19, 2002 in order to attend a medical appointment for his seven year old daughter on December 4, 2002. The request was denied and he therefore attended the medical appointment on a vacation day. The grievance was launched on November 22, 2002.

4. The parties agree that there is a four-part framework to determine each request’s eligibility for special and compassionate leave and the test is reproduced below:

5. The decision must be made in good faith.

6. There must be a genuine exercise of discretionary power, as opposed to rigid policy adherence.

7. Consideration must be given to the merits of the individual decision under review.

8. All relevant facts must be considered and, conversely, irrelevant consideration must be rejected.

9. OPSEU asserts that the employer failed to explain to the grievor why his request was denied. OPSEU further submits that the employer failed to follow its own procedure by not applying the four fold test. In particular, OPSEU claims, that the employer did not explain why it would be unreasonable to allow Mr. Perretta paid time, pursuant to the special and compassionate leave provision, to attend the medical appointment. In OPSEU’s view, the employer never explained any operational reason to deny the leave.

10. The employer asserts that Mr. Miksza made his decision based on the criteria listed above. Mr. Miksza denied the special and compassionate leave based on the fact that the appointment “was medical, regular, recurring, non-emergency, not isolated, scheduled with advance notice, and was for a pre-existing medical condition”.

11. The only fact in dispute between the parties is whether or not this medical appointment was a recurring appointment with a specialist for a pre-existing condition. OPSEU posits in its reply brief that the appointment was not a recurring one. This is obviously an important fact; however, I can not take this fact into account as Mr. Perretta did not assert that the appointment was of the non recurring type at the time Mr. Miksza denied the special and compassionate leave.

12. The fact that this was a non- recurring medical appointment with a specialist in a context where the appointment could not be changed, the child could not attend alone, and the employee did not have any other leave entitlement, like vacation or MCO days, might very well be the basis for a positive decision by the employer. However those are not the facts before me.

13. This case is not about being denied the time to attend the appointment, as Mr. Perretta was allowed to use a vacation day to do so. This case is about the circumstances and criteria by which Mr. Perretta can access the special and compassionate leave policy.

14. The employer must review the facts that the requesting employee proffers and then make a decision on those facts. In Mr. Perretta’s case, he is the father of a child with a serious pre-existing medical condition and thus his requests for special and compassionate leave must be assessed in that context. Obviously, the employer, when reviewing the request cannot grant each and everyone of Mr. Perretta’s requests as the leave only allows for a maximum of three paid leave days in a calender year.

15. The employer in this case places great importance on whether the appointment is recurring. I assume that the employer was not prepared to grant special and compassionate leave for each and every of Mr. Perretta’s appointment requests. I take the employers assertions to suggest that in the context of a pre-existing medical condition, where the employee will require time off to attend many appointments with his daughter, leave of the nature described above, might be granted for appointments that are not of the regular recurring variety.

16. It is not my role to substitute my view for that of management or enter into an assessment of the correctness of Mr. Miksza decision even if I might have come to a different conclusion. (see: OPSEU (Thurman) and Ministry of Health and Long Term Care GSB #0698/01 (Johnston). In this case, the employer did not see the request as extraordinary nor as a result of exceptional circumstances. In deciding that the grievor’s request for special and compassionate leave should be denied, Mr. Miksza relied on the facts that the appointment was “medical, regular, recurring, non-emergency, not isolated, scheduled with advance notice, and was for a pre-existing medical condition”. In the context of Mr. Perretta’s overall situation, it was reasonable for the employer to deny the special and compassionate leave. This denial is particularly appropriate in the circumstances described above where the employee could rely on other collective agreement entitlements such as vacation days and MCO days.

17. For the reasons stated above, this grievance is dismissed.

Dated in Toronto this 3^rd day of December 2003

SCHEDULE “A”

Ministry of Finance

Joseph Perretta

Denial of Special and Compassionate Leave

Agreed Statement of Facts

1. Mr. Perretta is employed by the Ministry of Finance as a Tax Auditor 2
2. Mr. Perretta has been a member of the Ontario Public Service since September 1998
3. The medical appointment for Mr. Perretta’s daughter with Neurologist Dr. Meany was scheduled for December 4, 2002 by McMaster hospital on November 19, 2002.
4. Mr. Perretta requested ½ day Special and Compassionate Leave to attend the medical appointment with his daughter on or about November 19, 2002.
5. Mr. Perretta’s 7-year-old daughter may be autistic. She has been diagnosed with ADD and HDD and requires an adult custodian for any appointments.
6. The trip from Mr. Perretta’s residence is more than 60 kilometers from McMaster hospital.
7. Mr. Perretta has stated that the appointment could not be cancelled owing to the seriousness of the medical condition being reviewed. The appointment is scheduled at the availability of the specialist.
8. Mr. Perretta’s immediate Manager recommended to the Senior Manager, denial of the request. The Senior Manager denied the request for special and compassionate leave (Article 49 of the collective agreement). All special and compassionate leave requests are made following the Human Resources Department schedule for delegation, giving responsibility for the decision to the SMG 1 level.
9. A meeting was held between November 19^th, 2002 and November 21st, 2002 between Mr. Perretta and his manager Hugo Fennema in order to gain further insight into the nature of the special and compassionate leave request.
10. In the attached memo dated November 21, 2002 Martin Miksza informed Mr. Perretta that his request for leave had been denied.
11. Mr. Perretta’s grievance was filed November 22, 2002. He attended the medical appointment after being granted vacation leave