GSB# 2017-0685

UNION# 2017-0586-0030

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Maxwell)

Union

• and -

The Crown in Right of Ontario (Ministry of Community and Social Services)

Employer

BEFORE

Gail Misra

Arbitrator

FOR THE UNION

Andrew Mindszenthy Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Caroline Cohen Treasury Board Secretariat Legal Services Branch Senior Counsel

HEARING

March 15, 2018

DECISION

1The parties referred this Grievance to mediation/arbitration in accordance with Article 22.16 of the collective agreement. At the outset of the proceeding the parties agreed that I had the jurisdiction to deal with this matter. It was agreed that I would issue brief reasons for my decision, and that the decision would have no precedential value.

2Ms. Natoye Maxwell filed a grievance on May 16, 2017 alleging that despite having provided “large amounts of information to management” she was not granted three days of paid Special and Compassionate Leave (“SCL”), and that the Employer should have acted with compassion and understanding. Among other things, the remedy sought is payment for the three days.

3Special and Compassionate Leave is addressed in the collective agreement at Article 49, which states as follows:

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.

4The Grievor is a caseworker. There is little dispute that most of the facts in this case are captured in email exchanges between Ms. Maxwell and her manager. In an April 21, 2017 email to her ODSP Manager, Louise Greco, the Grievor requested to move her compressed work week day from May 15 to May 23, 2017, and at the same time, also requested three SCL days for May 24 to 26, 2017 “to deal with some personal issues”. The days would have given the Grievor a full week off following the Victoria Day holiday.

5Ms. Greco responded on April 24, 2017 indicating she had been asked to gather some more information regarding the SCL request, and outlined in detail what information was needed. The Grievor was also advised that she should be prepared to make alternate arrangements should her request not receive approval, or only receive partial approval.

6The Grievor responded on April 26, 2017 indicating that she was requesting the SCL because the dates were the anniversary of her murdered brother-in-law, and it was “a tough time for me but also my family”. She offered to provide a copy of the death certificate.

7On May 2, 2017 Ms. Greco and the Grievor met to discuss the request. There is no dispute that Ms. Greco, who was new to that ODSP office, had explained to the Grievor that from her review of the records it appeared that the Grievor’s brother-in-law had died on May 14, 2015; the funeral had been held on May 21, 2015 in Trinidad; and, the Grievor had taken bereavement leave on June 9, 11, and 12, 2015, when her husband had returned to Canada from his brother’s funeral. There is some dispute about what was said thereafter, but it would appear that Ms. Greco wanted to get a better understanding of why the Grievor wanted the SCL. However, the Grievor became upset because she felt that her manager was “investigating” her, and left the meeting before Ms. Greco could ask her that question.

8As a result, Ms. Greco sent the Grievor a respectful follow up email that day in which she explained that she had not asked Ms. Maxwell to the meeting to make her upset, but to see if there was additional information that she wanted to provide to support the SCL leave request. Ms. Greco explained that she was simply trying to get a better understanding of whether there was a reason for requesting the specific May dates. Ms. Greco asked the Grievor to let her know if she wanted to continue the discussion, and that otherwise, the decision would be based on the information already provided. The Grievor emailed back that Ms. Greco should base her decision on the information already provided.

9On May 4, 2017 Ms. Greco emailed the Grievor advising her that the information provided to support the SCL request had been insufficient, that Ms. Maxwell had been told that on May 2nd, and that she had chosen not to provide any further information. Based on the available information, the SCL request was being denied. Ms. Greco explained that the onus is on the employee to disclose relevant facts to the Employer when seeking SCL so that management would be in a position to make an informed decision. She granted the Grievor’s request to move her compressed work week date, and indicated she would also approve the use of vacation days should the Grievor wish to use them for the three days sought.

10On May 12, 2017 the Grievor emailed Ms. Greco that she would be providing additional information to have the Employer reconsider her request for SCL.

11On May 15, 2017 the Grievor left a doctor’s note for Ms. Greco indicating that Ms. Maxwell needed to have May 24 to 26, 2017 off work to support her spouse, who would be starting a new medical treatment. She also submitted a “Toronto Region – Vacation and Leave of Absence Request Form”, dated May 15, 2017, indicating she was seeking SCL with full pay for May 24 to 26, 2017. The “Request for leave and reason” section on the form was left blank.

12Ms. Greco asked the Grievor to meet to discuss the matter, but Ms. Maxwell responded that she wanted to know what needed to be discussed, and questioned whether her request for the three days off had been approved.

13On May 16, 2017 Ms. Greco again sent the Grievor a long email explaining that she was confused by the undated doctor’s note as it stated that the Grievor needed the time off to support her spouse regarding a medical issue, but the original request had indicated it was the anniversary of her murdered brother-in-law, and a tough time for her and her family. Ms. Greco indicated she wanted to meet to understand the connection between the two. If Ms. Maxwell’s request was for the reasons in the doctor’s note, Ms. Greco needed the Grievor to disclose all the relevant facts as the basis for the new request, and Ms. Maxwell was again advised what information was required. Ms. Greco offered to meet with the Grievor to discuss this matter, and also indicated that if the Grievor did not want to discuss this further, the Employer stood behind its original decision, but was still willing to grant the Grievor vacation days instead.

14On that same day the Grievor responded indicating it was not a new request; that the doctor’s note was from May 12, 2017; and that the personal reasons for her seeking the SCL were related to her brother-in-law’s death. Ms. Greco advised Ms. Maxwell that she still did not see the connection between the original request and the doctor’s note, and therefore maintained her denial of the leave request. In the circumstances, the Grievor then decided to take the three days as vacation, and this grievance was filed.

15It was only in preparation for the mediation/arbitration in 2018 that the Grievor advised the Union that the reason she wanted the SCL was because her husband was about to start bereavement/grief counselling regarding the death of his brother two years earlier, and that was the reason she wanted to be home that week to support him. Whether or not that information would have been persuasive, this rationale had never been provided to Ms. Greco at the time the SCL request was being considered.

16The Union argues that the Employer considered irrelevant factors in making its decision to deny the request for SCL because Ms. Greco had looked at the Grievor’s pay records to ascertain when she had taken bereavement leave for her brother-in-law’s death. It argues that even if Ms. Greco did later consider relevant factors, her decision was tainted by her earlier consideration of when Ms. Maxwell had taken the related bereavement leave.

17The Employer argues that the onus is on an employee seeking paid SCL, and that such requests perforce require that the employee ground the request in particular facts, which may be of a personal and private nature. It is only when management has been told the reasons for the SCL that it can consider whether to exercise its discretion to grant this exceptional leave. In this instance, the Grievor was seeking the maximum annual amount of SCL and was unwilling to provide a sufficient and clear factual basis for her request. The information she had initially provided appeared inconsistent with the doctor’s note that was later provided, and the Grievor refused to explain any of it to Ms. Greco.

18Ontario Public Service Employees’ Union v. Ontario (Ministry of Health and Long-Term Care) (Thurman Grievance) [2002] O.G.S.B.A. No. 25, 2003 CanLII 52897 (J. Johnston) addressed the considerations in special or compassionate leave cases. The relevant paragraphs of the decision are as follows:

15. In reviewing the situations which warrant the granting of compassionate leave by management, the cases generally articulate that it is appropriately utilized when an employee is in a situation deserving of sympathetic treatment or makes a request in extraordinary circumstances which merit sympathetic treatment (see in this regard Elesie and Ministry of Health, GSB #24/79 (Swinton) (the “Elesie case”) and Sahota and Ministry of Correctional Services, GSB #2454/87 (Verity) (the “Sahota case”)).

16. There is no doubt that in this case the grievor lost someone who was very close to her and that this loss was very upsetting to her. The employer did not dispute the fact that the grievor had lost one of her closest and dearest cousins. Mr. Ballantyne was sympathetic to her loss and never questioned the sincerity of her request. However, the fact that an employee is in a situation deserving of sympathetic treatment does not automatically result in the granting of a compassionate leave request. Although in a sense it may be a threshold factor, it is only one of many factors appropriately considered by management.

17. The employer accepted and I agree that in exercising the discretion found in article 49 of the collective agreement, it must comply with the criteria which are set out in its policy on handling special/compassionate leave requests. In other words, the employer must make a decision in good faith, free from arbitrariness and discrimination. The employer must exercise its discretion in a reasonable manner having regard to the individual merits of each case and not simply resort to a rigid application of policy. An effort must be made to obtain all the relevant facts prior to making a decision and management must endeavour to act consistently in similar cases.

18. In considering the decision of management, the appropriate standard of review 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 (see in this regard Young and Ministry of Community and Social Services (1979), 1979 CanLII 3955 (ON LA), 24 L.A.C. (2d) 145, O’Brien and Ministry of Correctional Services, GSB #1157/86 (Gandz), Malyon and Ministry of Revenue GSB #1129/88 (Roberts), the Sahota case and the Elesie case.)

19In Ontario Public Service Employees’ Union v. Ontario (Ministry of Attorney General) (Stubbs Grievance) [2015] O.G.S.B.A. No. 116, (N. Dissanayake), the Board addressed the denial of a special or compassionate leave request by an FTP employee governed by the SCL provision of the collective agreement at Article 75. In the case before me, the Grievor is a regular full time employee, and her request is governed by Article 49 of the collective agreement. Articles 75 and 49 contain identical language, and as such, this decision is helpful. Vice Chair Dissanayake stated at para. 10 as follows:

10. … It must be noted that the leave under Article 75 [or 49 for full time employees] is at the discretion of the employer, to be granted on “special and compassionate” grounds. When requesting leave under article 75 [or 49 for full time employees], 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.

20I agree with the jurisprudence outlined above that an employee seeking SCL is required to provide all available information supporting their request for this type of leave, and if they do not do so, the employer is entitled to request that information. If an employee fails or refuses to provide sufficient, or any, factual support for a request, the employer has to make a decision based on the information before them, which may lead to denial of a SCL request.

21In this case, Ms. Maxwell provided very little information to support her original request, and when asked for more, chose not to provide anything further. Once her request had been denied, she provided a medical note that on its face appeared to have nothing to do with her original basis for the SCL request. As a consequence, Ms. Greco sought further information or explanation from the Grievor, which she did not provide, so the original denial was maintained.

22In the circumstances, I am satisfied that Ms. Greco tried to address the Grievor in a compassionate manner; that she understood that the Grievor had been upset in the May 2, 2017 meeting, and therefore wanted to give the Grievor a further opportunity to provide information to ground the SCL request; and that ultimately, having made all efforts to gather the relevant facts, Ms. Greco had to exercise her discretion based on what she had before her.

23I do not find troubling that Ms. Greco had looked at the Grievor’s bereavement leave history as she was a new manager in that office and was not aware of the history or circumstances of Ms. Maxwell’s loss of her brother-in-law. Given the dearth of information provided by the Grievor herself in her request for SCL, it is not surprising that Ms. Greco felt the need to understand more about Ms. Maxwell’s situation before she met with her to discuss the SCL request.

24In the circumstances of this case I find that there was nothing arbitrary or unreasonable in the Employer’s decision-making process and the exercise of discretion, or in the decision itself.

25For the foregoing reasons, the grievance is hereby dismissed.