GSB#2014-3159

UNION#2014-0526-0247

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union

(Evangelista)

Union

• and -

The Crown in Right of Ontario

(Ministry of Attorney General)

Employer

BEFORE

Nimal Dissanayake

Vice-Chair

FOR THE UNION

Seung Chi

Ontario Public Service Employees Union

Grievance Officer

FOR THE EMPLOYER

Stephanie Borcsok

Treasury Board Secretariat

Centre for Employee Relations

Employee Relations Advisor

HEARING

June 26, 2015

Decision

1A grievance dated September 3, 2014, filed by a court reporter at the City Hall Court House, Mr. Paolo Evangelista (“grievor”) came before the Board pursuant to the mediation-arbitration provisions in article 22.16 of the collective agreement. He grieves the employer’s denial of special/compassionate leave with pay requested for Friday August 29, 2014.

2Article 75 provides:

75.1 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.

75.2 The granting of leave under this article shall not be dependent upon or charged against accumulated credits.

3On August 25, 2014, the grievor requested leave under article 75 for Friday August 29, 2014 “to assist my mother prepare for my father’s memorial this coming Saturday, August 30th”. The request was denied the same day. It was suggested that the grievor consider using a vacation credit to cover that day. The same day the grievor wrote again making argument that his request meets the requirements in the collective agreement and requesting that the employer reconsider its decision. He stated that Saturday August 30th was the memorial commemorating the 10 year anniversary of his father’s passing. He added “In my religion and culture, it is common to have such memorials for the passing of an immediate family member. I simply requested Friday off to assist my mother and family prepare for this religious/cultural event”. He likened it to employees “taking time off for other religious activities”.

4On August 26th the employer replied, inviting the grievor to inform if he wanted to meet and discuss his request further. The grievor responded the same day indicating his understanding that employees have been granted “discretionary/compassionate leave for reasons up to and including their dog passing away, to child care issues not involving the employees themselves”. He again reiterated that his request, in his view, met the requirements, and stated that “if you are steadfast in your position, I see no point in meeting”. On August 28th, the employer confirmed its decision, and noted that the memorial service was on the Saturday, and that the employer would not have enough staff on the Friday to meet operational requirements. The employer again wrote, “Please let me know if you would like to discuss this further or if you have further information you wish to share”.

5The last communication in evidence is an e-mail dated September 2, 2014 from the grievor. He again claimed that the denial of his request was a violation of the collective agreement, and pointed out that the exact request he made under article 75 the previous year was approved. He disagreed with the employer’s position that his absence on Friday would have affected operations, and pointed out that on that Friday no agency workers were assigned and that 13 court rooms were closed. He gave notice that he would be grieving the matter.

6The union submitted that in exercising its discretion under article 75 the employer failed to consider the grievor’s particular circumstances and all relevant facts. The grievor had explained that due to his cultural background he needed the Friday off. If the employer had a concern about why he needed the Friday off when the memorial is on Saturday, it could have sought more information. It did not do so. The union argued that the employer did not consider the grievor’s factual assertion that his absence on the day in question would not have adversely affected operations. It should have considered that information and reconsidered its decision.

7The employer reminded the Board that leave with pay under article 75 is not an entitlement, but is to be granted at the discretion of the employer, subject only to it meeting the four-fold test set out in the Board’s jurisprudence. It was submitted that the employer complied with that test. It considered all of the information the grievor provided and concluded that no special or extenuating circumstances existed to warrant approving leave for the Friday. It was noted that unlike circumstances where leave is requested in order to enable the observance of religious services on a holy day, here the grievor would have been able to attend the memorial service scheduled for Saturday, which was not a working day for him. He wanted the Friday off not to attend the service, but to assist his mother make preparations for it. Since the date of the service would have been fixed in advance, there was no explanation why the grievor could not have done the preparations in advance on his own time.

8The employer submitted that while it had the duty to consider the merits of the grievor’s particular request, the grievor had the initial onus of providing all relevant information. When the grievor insisted that his request met the requirements of the collective agreement, the employer invited him to meet and discuss, and to provide any further information he wished to share. The grievor chose not to do so. While the grievor did send an e-mail on September 2, 2014, it contained no new information to cause the employer to reconsider. The employer disputed the grievor’s assertion that operations would not have been impacted adversely if his request had been approved. It was the employer’s position that on the Friday in question, staff had to be brought in to the City Hall court house from the courts at 361 University Avenue, to cope with the work required.

9The employer submitted that according to its records, the only other similar request for leave under article 75 made by the grievor was in the previous year. On that occasion the leave was requested for a Friday in September to attend the memorial service. On that understanding the request was approved. The employer is required to consider each request on its merits. The request in 2014 was made not to attend, but to assist in the preparation of the memorial service. That was a key consideration in the decision to deny the request in this instance.

10The employer pointed out that it did not inquire at any time prior to making its decision, whether or not the grievor had available vacation credits. It was after the decision was made and communicated, that the grievor was offered the option to use a vacation credit if he wanted the day off. The availability of any credits did not form any part of the decision making process.

11In reply, the union submitted that in the September 2nd e-mail the grievor had explained that there were significant preparations required to hold the memorial service and that the service was a cultural tradition. Yet the employer appears to have assumed that his assistance was not required to carry out those preparations.

12The Board concludes that it ought not intervene in the decision made by the employer in exercising its discretion. As observed in Re Thurman, 0698/01 (Johnston) at para. 18, “In considering the decision of management, the appropriate standard 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”.

13Even at arbitration the union did not provide any material information that had not been provided to the employer. That likely explains why the grievor did not accept the employer’s offer to meet and discuss the matter further. It appears that he was satisfied that all relevant information had been provided. The only factual issue of some relevance that arose at arbitration relates to the impact on the operations of the court house if the request had been approved. The parties remain in dispute in that regard. While impact on operations is a relevant consideration, it is not mandatory that the employer approve any request, if that does not adversely impact on operations. The issue is whether in all of the circumstances, the employer’s exercise of discretion was reasonable.

14Contrary to the union’s submission, the Board is satisfied that the employer did consider all of the information presented to it. The union’s assertion in effect is that, having done so, the employer should have reconsidered its decision. The employer was aware of why the grievor wanted the Friday off when the event was on Saturday. The grievor had advised that he wanted to assist with the preparations. The Board finds that the distinction drawn by the employer between the observance of or attendance at a religious cultural service and assisting with preparations for such a service, is not unreasonable. In the previous year the employer exercised its discretion and approved leave on the basis of its understanding that the day off was requested in order to attend the memorial service. In the instant case it was concluded that it would not exercise its discretion to approve a leave with pay under article 75 to enable the grievor to assist in the preparation of the event, when the event itself was on a non-work day for him. That decision was made and confirmed taking into account all information provided. The exercise of discretion in the circumstances was within the realm of reasonableness.

15The Board is also satisfied that the issue of using a vacation credit was raised only following the making of the decision and that it formed no part of the decision making process.

16For the foregoing reasons, the grievance is hereby dismissed.