GSB# 2016-2306

UNION# 2016-0219-0041

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Barrett)

Union

• and -

The Crown in Right of Ontario (Ministry of Education)

Employer

BEFORE

Janice Johnston

Arbitrator

FOR THE UNION

Indika Chandrasekara Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Omar Shahab Treasury Board Secretariat Legal Services Branch Counsel

HEARING

September 12, 2017

Decision

1At the hearing scheduled to deal with this matter, it was agreed that we would proceed pursuant to the expedited process set out in Article 22.16 of the collective agreement. It was agreed that I would issue brief reasons for my decision and that this decision shall have no precedential value. Article 22.16 states in part:

22.16.2 The mediator/arbitrator shall endeavour to assist the parties to settle the grievance by mediation. If the parties are unable to settle the grievance by mediation, the mediator/arbitrator shall determine the grievance by arbitration. When determining the grievance by arbitration, the mediator/arbitrator may limit the nature and extent of the evidence and may impose such conditions as he or she considers appropriate. The mediator/arbitrator shall give a succinct decision within five (5) days after completing proceedings, unless the parties agree otherwise.

22.16.7 Decisions reached through the mediation/arbitration process shall have no precedential value unless the parties agree otherwise.

2The issue in this case is the employer’s denial of the grievor’s request for Special and Compassionate Leave pursuant to Article 49 of the Collective Agreement. Article 49 reads:

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.

3The parties provided me with will say statements and some documentary evidence. It was agreed that the documents and will says would form the basis for any factual conclusions necessary to deal with the grievance.

4The will say provided by the grievor states:

1. I am currently on secondment as an Administrative Manager with the Ontario Correctional College in Hamilton.

2. At all times relevant to the grievance, I was employed as a Student Support Counsellor with the Provincial Schools Branch of the Ministry of Education, working at W. Ross Macdonald School for the Blind in Brantford.

3. The W. Ross Macdonald School for the Blind is a community-based School for students who are blind, visually impaired and deafblind.

4. As a Student Support Counsellor, my job duties included providing supervision, guidance, intervention and instruction for students who are blind, and/or visually impaired in planned and organized programs in a residential setting and providing sound physical care and maintaining a safe/secure environment for residential students. My job involved physical work.

5. I was a Fixed Term unclassified employee. I worked 25 hours a week, Monday to Thursday. As such, I did not have sick leave entitlements.

6. I underwent total hip-replacement surgery in or around November 11, 2015.

7. On October 6, 2016, I injured my hip. I had severe mobility issues and excruciating pain in my hip area. As a result, I could not attend work for three days on October 7, 11 and 12, 2016. I missed a staff training day on Friday, October 7, 2016; school was closed thanksgiving weekend; I missed Tuesday, October 11 and Wednesday, October 12, 2016. I missed 24 hours of pay as a result.

8. I submitted two medical notes to substantiate the fact that I was unable to attend work on these three days due to hip pain/medical issue.

9. I requested special and compassionate leave for the three day's absence.

10. I explained my situation and the financial difficulties I faced as a result of not receiving pay for three days, to my Program Manager, Glenna Young.

11. Glenna Young suggested that if I could prove through my bank/financial institution, that this unpaid absence caused me financial hardship, the employer may grant me the special/compassionate leave.

12 I requested and received a bank statement indicating that my bank account did not contain sufficient funds to make my mortgage payment that month, and that the payment was made through my line of credit. However, I did not provide the bank statement to the employer, because I felt that the employer was being overly intrusive and feared that the employer would breach confidentially.

13. The employer denied my request for special compassionate leave on or about November 7, 2016.

14. I filed the attached grievance on December 5, 2016.

15. The Formal Resolution Stage meeting was held on February 23, 2017. The Employer's position was:

1. No evidence of financial hardship;

2. My injury was not work related;

3. Superintendent denied the leave request;

16. This was a personal emergency and an unforeseeable circumstance. Losing three day's pay caused me and my family much financial hardship. In addition to not having money to make my mortgage payment, I now have to pay interest on my line of credit withdrawal.

17. I believe the employer should have granted me special compassionate leave for these three days, as this was an extenuating circumstance warranting compassion.

5The will say provided on behalf of the employer by Ginette Faubert states:

1. I am currently the Superintendent at the Provincial Schools Branch with the Ministry of Education. At all relevant times for this grievance, the Grievor reported indirectly to me through his Residence Coordinator (Glenna Young) and his Residence Manager (Emily Ricker).

2. The Grievor is employed in a fixed-term position as a Student Support Counsellor at the provincial school at the W Ross MacDonald School for the Blind in Brantford.

3. On October 20, 2016, the Grievor submitted a “Request for Leave of Absence” form to request three Special and Compassionate Leave days with pay to cover his absences on October 7, 11, and 12 (Attachment A). The following written explanation was provided by the Grievor in the form:

I was off Friday, Oct 7, 2016, Tuesday Oct 11, 2016, and Wed Oct 12, 2016. I had hip replacement surgery Nov 11, 2015, I injured/ had physical trauma to my hip on Oct 6. Required a week to recover and medical treatment to regain my mobility. Physician notes submitted. Requesting Three Paid Special/Compassionate days. No sick credits.

4. I understood that the request form was accompanied by two medical notes indicating that the Grievor would be off work until October 17, 2016.

5. I was aware that on October 24, 2016, Ms. Young discussed the request for paid special & compassionate days with the Grievor. I understood that the Grievor had indicated that he will experience financial hardship, specifically that he required the paid days to pay his mortgage. I further understood that as follow-up to the conversation, Ms. Young emailed the Grievor on October 28, 2016 to request any related documentation on the financial hardship that the Grievor stated he would suffer if he did not receive payment for his absence (Attachment B).

6. I understood that the Grievor did not provide any documentation to support his claim of financial hardship, despite the request by Ms. Young. When no documentation was forthcoming from the Grievor, I directed Ms. Ricker to respond to the Grievor to deny his request. The denial was communicated by Ms. Ricker to the Grievor by email on November 7, 2016.

7. In making the decision to deny the request for paid special & compassionate days, I reviewed the “Request for Leave of Absence” form and the subsequent exchanges between Ms. Young and the Grievor. I considered the following factors:

• A lack of attendance credits is not an automatic qualifier for approval of special or compassionate leave. The situation, regardless of credits, requires it to be above and beyond regular illness or injury that most employees suffer. Employees ought to know that when they run out of attendance credits, anytime missed due to illness or injury will not be paid.

• The Grievor presented no evidence that his financial hardship was different or above and beyond the financial hardship other employees without credits would face.

8. In my view, the Grievor’s situation did not rise to the extraordinary circumstances that would justify the granting of special & compassionate days to extend sick leave benefits.

9. I understood that in response to Ms. Ricker’s email on November 7, 2016, the Grievor sought information from Ms. Ricker as to why his request was denied. In the subsequent exchanges, Ms. Ricker by email dated November 14, 2016 offered the Grievor another opportunity to provide any related documentation that he would like the Employer to consider as part of his request (Appendix C). As the Grievor did not provide any new documentation, I saw no reason to reverse my earlier decision to deny the leave.

6The request for Special and Compassionate Leave was based on a medical condition which rendered the grievor unable to work. The grievor claimed that his inability to work and receive wages caused him to undergo financial hardship. Therefore there were two reasons for the request. The grievor provided medical documentation and the employer accepted the legitimacy of the injury suffered by the grievor. The employer requested documentation to substantiate the grievor’s claim that he would suffer financial hardship. Based on the grievor’s will say, it appears that he did receive a bank statement but chose not to give it to his employer “because I felt that the employer was being overly intrusive and feared that the employer would breach confidentially.”

7Counsel for the Ministry argues that the employer asked for relevant information from the grievor who refused to cooperate. In Stubbs and Ministry of Attorney General GSB#2014-3674 (Dissanayake) in paragraph 10 of the decision VC Dissanayake observed:

It must be noted that the leave under article 75 is at the discretion of the employer, to be granted on “special and compassionate” grounds. When requesting leave under article 75, it is up to the employee to provide all information supporting the existence of special/compassionate grounds. If it is not provided, the employer is entitled to request for that information. When an employee refuses or fails to do that, he/she does so at his/her own peril.

8I agree with this observation. Although in a sense the issue of financial hardship is a secondary issue to the medical reason in this case, having raised it as a justification for the request, the grievor must provide all available information to justify reliance on this as a basis for the granting of the leave. He chose not to and the employer denied the request based on the information it had before it.

9There is no dispute that the appropriate standard of review in this situation is reasonableness. Based on the information before me, I cannot conclude that the decision to deny compassionate leave was unreasonable.

10Accordingly, I am satisfied that there has been no breach of the collective agreement and the grievance is hereby dismissed.