GSB#2008-3832

UNION#2008-0649-0016

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Morissette)

Union

• and -

The Crown in Right of Ontario (Ministry of Training, Colleges and Universities)

Employer

BEFORE

Nimal Dissanayake

Vice-Chair

FOR THE UNION

Don Martin Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Cathy Phan Ministry of Government Services Counsel

HEARING September 17, 2009.

SUBMISSIONS October 20, 2009.

Decision

1The grievor, Mr. Brian Morissette has filed a grievance dated May 21, 2008, alleging that the employer contravened the collective agreement by denying part of his vacation request in the summer of 2008.

2The grievor was employed as an Employment Training Consultant (“ETC”) at the Labour Market and Training Division located in South Porcupine, Ontario. On April 21, 2008 he made a written request for vacation to be taken on 33 specific days in the months of July, August and September. The employer approved 25 of the requested days, but denied the remaining 8 days. The union takes the position that, while approval of vacations is a matter of management discretion, in the particular circumstances the exercise of discretion was improper and contrary to the standards established by the Grievance Settlement Board.

3There were two bilingual ETC’s in the office, the grievor and Ms. Chantal Rousseau. The grievor has been in his current position for 28 years. He testified that in most of those years he took his vacations in the summer months. He testified that when he was on vacation, most times the other ETC would be at work. However, there were exceptions. For example, when he took vacation in July and August of 2006, his colleague Ms. Rousseau was also away for part of that time on pregnancy leave. When he took his vacation in July and August 2007, Ms. Rousseau was still off on leave. When union counsel asked how the office functioned in the summers of 2006 and 2007 with no ETC, the grievor responded that Ms. Liane Levacque did some of the work in the office, and that the office had some support from a student. The evidence is that Ms. Levacque’s home position was Exam Invigilator. However, in late June 2006 she had been appointed to a 6 month acting ETC position, followed by a one year temporary appointment.

4The grievor testified that in recent years 40 to 50 percent of his work time was spent in the office, and the rest in the field. When asked how much of his office work was pre-planned, he replied that it was hard to answer, because the work is market driven, and the nature of the work varied day to day. When pressed, he stated that he would make a “rough guesstimate” that 10 to 15 percent of his office work would be unplanned and unexpected. He testified that occasionally people would walk in to the office for assistance.

5Union counsel asked whether there had been a big change in the work-load of the office between 2007 and 2008. The grievor replied that while “on paper” there were massive changes and new visions for the service to be provided by the office, in reality his job did not change in a significant way.

6The employer had stated that the 8 of the 33 days of vacation the grievor had requested were denied “due to operational requirements”. The grievor testified that at the time it was explained that he could not be away on those days, because Ms. Rousseau, the other ETC, would also be away.

7The grievor testified that in the fall of 2007 Ms. Celine Paulin from the Sudbury Office was acting as Area Manager. He recalled that at a staff meeting Ms. Paulin described a number of changes that were planned for the South Porcupine office. According to the grievor, during that meeting Ms. Paulin made the “unsolicited statement” to the effect “No one will ever get the summer off in this office again”. She had explained that giving an employee the summer off on vacation could be perceived by other employees as unfair, and that it could affect the office morale.

8When union counsel asked the grievor, how he expected the office to function without a ETC, the grievor replied, “I knew that Ms. Levacque would be around. We had done this for 25 years. I did not see it as a problem”.

9Under cross-examination the grievor reiterated that 40 to 50 percent of his time is spent in the office. He stated that 10 to 15 percent of his office time is spent assisting “walk-ins”. He agreed that in addition, people also call-in and e-mail for assistance. He could not give percentages for those, because it varied from day to day. The grievor agreed that at the time of his 2008 vacation request, his manager was Ms. Alice Shallow, and not Ms. Paulin, and that it was Ms. Shallow who made the decision on his request.

10Ms. Levacque testified that since she came to the office, the grievor normally took his vacation in July and August. She was asked whether an ETC was always in the office when the grievor was on vacation in past years. Her response was that usually an ETC was in the office. She said “There was always Chantal and myself in the office. Before that it was me and Michelle”. However, she explained that sometimes when the ETC’s go on field work, there would be no ETC in the office. This would usually be for an afternoon.

11Ms. Levacque testified that in the summer of 2006 and 2007 when Ms. Rousseau was on pregnancy leave and the grievor on vacation, the office was left with herself, a summer student, and a contract employee. She was not aware of any complaints or problems raised by clients or management during those periods.

12Ms. Levacque stated that she would have been willing to look after the office in the summer of 2008, as she had done in the two previous summers. She recalled that since the summer of 2008 also, there were occasions when the office was left with only herself and an administrative staff. This would happen when both ETC’s go for training or presentations out of town. They could be gone for one to three days. Three times a year Ms. Levacque had to attend staff meetings out of town which would require her to be away 2 to 3 days. If the two ETC’s were also away at the time, only the administrative staff would be left. Then, a temporary employee would be brought in to assist at the front desk. Ms. Levacque testified that on those occasions, all that the staff can do is to advise the clients to call-back or come back at another time. She agreed that she was fairly busy with her own duties in the office.

13Ms. Alice Shallow, Service Delivery Manager, assumed duties in that position following the amalgamation and reorganization of Ministry effective January 1, 2007. In that position, she was the grievor’s manager and made the decision on his vacation request.

14Ms. Shallow testified that she received vacation requests from the grievor as well as Ms. Rousseau around the same time. She noticed that the 8 days Ms. Rousseau had requested overlapped with some of the dates the grievor had requested. Ms. Shallow explained that the overlapping vacation requests caused her concern. The grievor and Ms. Rousseau were the only office staff with expertise in the apprenticeship areas and programs. She was concerned that allowing both ETC’s to take vacation at the same time would impact on client service. She was of the opinion that as a manager she had the responsibility to ensure that the office would be able to provide appropriate service to clients at all times, whether it was one client or a large number of clients that sought service.

15Ms. Shallow discussed her concerns with Human Resources Staff. She was advised that she should make her decision based on operational requirements. Ms. Shallow decided to meet with the two employees. During the meeting, Ms. Rousseau reiterated that she had a family function to attend during the 8 days she had requested. When Ms. Shallow asked the grievor if he had any special reason why he needed those 8 days in question, “he basically said that its his holidays which he took every year and that he should be able to take them”. She decided to approve the grievor’s vacation request, except for the 8 days which overlapped with Ms. Rousseau’s request. Those 8 days were approved for Ms. Rousseau.

16Ms. Shallow acknowledged that there were 2 ETC’s in the satellite office in Kapuskasing, Ontario. However, she explained that it was not possible at the time to have them cover the South Porcupine office because one of the ETC’s in Kapuskasing was already away, and as a result the remaining ETC had to cover that office alone. Ms. Shallow further testified that even though Ms. Levacque had some experience working as an ETC on acting and temporary assignments, she could not provide appropriate client service in the absence of the two ETC’s because she had no signing authority, and because she was in any event very busy with her own duties.

17Under cross-examination, Ms. Shallow was asked whether she inquired, before making her decision, what the past practice had been, as to how the office dealt with situations when both ETC’s were absent. Ms. Shallow responded that in looking at vacation requests, as a responsible manager it was most important for her to ensure that service is available to clients. Therefore, she did not inquire about past practice. Ms. Shallow agreed that two or three times a year both ETC’s would be away from the office for 2 to 3 days at a time, in order to attend training. She testified that for those periods a temporary employee is brought in to the office, but that employee could do only very limited duties. That employee also was provided a contact person in the Sudbury office, who may be contacted for assistance or information. In re-examination, Ms. Shallow stated that the temporary employee was not able to provide customer service.

18The union challenges the employer’s exercise of discretion with regard to approval of vacation time on two grounds. First, it is alleged that Ms. Shallow’s decision was based on a rigid adherence to a rule that employees will not be allowed to take summers off on vacation. Second, it is claimed that Ms. Shallow failed to inquire into and consider all factors relevant to the decision.

19The standard of review of managerial discretion the Board generally undertakes has been well established over the years. Thus in Re Kuyntyes, 0513/84 (Verity) at p. 16, the Board states:

In cases involving the exercise of managerial discretion, Boards of Arbitration generally hesitate to substitute their view for that of the decision-maker, which is a recognition of the fact that Boards have less familiarity than does the Employer with the exigencies of the work place. However, Arbitrators must ensure that decisions are made within the confines of certain minimum standards of administrative justice. Those administrative law concepts relating to the proper exercise of discretion include the following considerations:

1. The decision must be made in good faith and without discrimination.

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

3. Consideration must be given to the merits of the individual application under review.

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

20The Board has specifically addressed the limits of the Board’s role in reviewing exercise of the employer’s discretion, which involves leaves of absence and structuring of the work-load. Thus in Re Young, 220/79 reported at (1979) 1979 CanLII 3955 (ON LA), 24 L.A.C. (2d) 145 (Swinton) at pp. 147-148, the Board wrote:

An arbitration board, in subsequently assessing what the employer has done in reaching its decision, then plays a restricted role. It must decide whether the employer has acted reasonably and without discrimination and has turned its mind to the merits of the particular request. If satisfied that these criteria have been met, the board must deny the grievance, even if it disagrees with the result reached by the employer or if it might have reached a decision other than that reached by the employer. The board’s concern is the reasonableness of the decision, not its ‘correctness’ in the board’s view. Such an approach is the proper one to adopt in situations such as leave of absence cases, where the collective agreement gives the employer a broad discretion and where the board has less familiarity than has the employer with the needs of the work place. Unlike the disciplinary area, where employee interests in job security require active arbitral review, it is unwise for an arbitration board to second guess management in the structuring of the work-load.

21The evidence does not support a finding that Ms. Shallow acted pursuant to a rigid policy. First, the alleged policy that no one in the office will get the summer off on vacation was uttered by an individual, who at the time of these vacation requests, had no role or authority over the South Porcupine office. The decision on the grievor’s request was made by Ms. Shallow. There is no evidence that the office had adopted Ms. Paulin’s statement as policy, or that Ms. Shallow was even aware of Ms. Paulin’s statement.

22Moreover, Ms. Shallow’s decision is, in any event, at variance with the statement made by Ms. Paulin, in that she did allow employees to take vacation in the summer. She approved the grievor’s request, except to the extent that it overlapped with his co-worker’s vacation. If Ms. Shallow was adhering to a rigid policy, there would have been no reason for her to meet individually with the employees to find out their personal circumstances. She would logically have denied vacation on the ground that employees are not allowed to take vacation in the summer. There is simply no evidence to support the union’s suggestion in reply submissions that Ms. Shallow denied the grievor’s vacation by applying a rigid policy, but went through the exercise of meeting with the employees to cover up that fact.

23The evidence does not also establish that Ms. Shallow failed to take into consideration all relevant factors in making her decision. As a manager, she was of the opinion that it was paramount to ensure that the office continues to provide service to its clients at all times. The evidence is that the demand for client service in the office is unpredictable and varied from day to day. Therefore, Ms. Shallow was concerned about leaving the office without the services of an ETC.

24It is important that despite her concerns, Ms. Shallow did not make her decision on that basis alone. She obtained input from the employees as to how important it was to them that they have the requested time off. While Ms. Rousseau provided a particular reason, that she had to attend a family function, the grievor did not put forward any special reason why taking off the particular days was important to him. His only rationale was that he always took that time off as vacation. In the circumstance, I find that Ms. Shallow’s decision was a rational attempt to balance the operational needs of the office, with the wishes of the two employees. Ms. Rousseau received the time off to attend her family function. The grievor received 25 of the 33 days he had requested. This arrangement also addressed Ms. Shallow’s concern that appropriate client service must continue to be provided in the office.

25The union’s contention is that Ms. Shallow failed to make inquiry, and to consider, how the office had been able to operate at various times in the past, without the services of an ETC, including during periods in past summers when the grievor was on vacation. It was suggested that the evidence indicated that the office operated without any problem or complaint from clients or management, despite the absence of the two bilingual ETC’s. It was suggested that Ms. Shallow failed to consider whether the office could have operated in the summer 2008, as it had done in the past. That, according to the union was a failure to consider a relevant factor, which rendered Ms. Shallow’s decision unreasonable and contrary to the standards set by the Board.

26I do not agree. The evidence is clear that in the past when no bilingual ETC was present and the office was left with students and/or administrative staff, while some duties got done, there was no client service provided as usual. That evidence is clear, notwithstanding the absence of evidence of any complaints from the public. It was not unreasonable for Ms. Shallow, in my view, to have concerns about the possibility that client service may be adversely affected. In balancing her need for continuing client service with the employee’s interests, (namely that the grievor wished the whole period off only because he had always taken the summer off, but had no particular reason for wanting the overlapping days off) Ms. Shallow concluded that there was insufficient reason to reduce client service. In circumstances where it was clear that allowing the only two employees with expertise in apprenticeship programs to be away at the same time would result in reduced client service, and where it was clear that one of the employees had no special reason requiring the particular time off, Ms. Shallow was not obligated to inquire into past practice of the office. That was not a relevant consideration in the particular circumstances. The fact that other manager’s may have been prepared to operate at times with reduced client service was not a factor which Ms. Shallow was obliged to consider or give weight to.

27The union contended that Ms. Shallow was wrong in concluding that the office could not operate efficiently in the absence of its two ETC’s. My attention was drawn to the evidence that on many occasions, in the past and subsequent to the summer of 2008, the office had operated with no ETC, and there is no evidence that there were any problems or complaints.

28As I have already noted the absence of complaints is not proof that effective client service continued to be provided, despite the absence of both ETC’s. However, even if that was true, it only establishes that Ms. Shallow was wrong in concluding that the absence of an ECT would adversely impact on client service. That still does not assist the union. The Board does not intervene with a manager’s exercise of discretion merely because it is of the view that a manager was incorrect or because there were alternate means the manager could have resorted to, in order to accommodate the employee request, as long as the manager’s decision was made on grounds relevant to legitimate government purposes. Thus in Re Boulet et al, 1189/99, (R.M. Brown) at p. 12, the Board stated:

The standard to be applied is not whether the decision was “correct” but rather whether it was made on grounds “relevant to legitimate government purposes”. In other words, what matters is the nature of the reasons underlying the decision and not whether those reasons are of sufficient weight to make the decision appear sound in the eyes of an adjudicator. The sufficiency of the reasons is for the employer to determine.

(See also Re Young, at para.20 supra).

29It is hardly debatable that a desire to have efficient and uninterrupted client service at all times is a “legitimate government purpose”. That was the consideration which led Ms. Shallow to her decision. Therefore, whether she was wrong in concluding that the presence of at least one qualified ETC was necessary to ensure that the purpose is achieved is not for this Board to judge. That is not sufficient reason for the Board to intervene with her exercise of discretion.

30For all of the foregoing reasons, the grievance is hereby dismissed.