GSB#2016-2588

UNION# 2017-5112-2017

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Deluca-Gauci)

Union

• and -

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

Employer

BEFORE

Brian P. Sheehan

Arbitrator

FOR THE UNION

Dan Sidsworth Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

James Cheng Treasury Board Secretariat Legal Services Branch Employee Relations Advisor

HEARING

December 13, 2017

DECISION

1The Employer and the Union at the Toronto South Detention Centre agreed to participate in the Expedited Mediation/Arbitration process in accordance with the negotiated Protocol. It is not necessary to reproduce the entire Protocol. Suffice to say, that the parties have agreed to a True Mediation/Arbitration process wherein each party provides the Arbitrator with their submissions setting out the facts and the authorities they respectively will rely upon. This decision is issued in accordance with the Protocol and with Article 22.16 of the collective agreement; and it is without prejudice or precedent.

2The grievor is employed as a Records Clerk at the Toronto South Detention Centre (TSDC).

3The state of health of the grievor's mother-in-law, who had esophageal cancer, deteriorated in August and September of 2016. During that time, she was in Credit Valley Hospital for a considerable period. Unfortunately, the grievor's mother-in-law passed away on September 10, 2016.

4The grievor took eight vacation days sprinkled amongst August and September to be with her mother-in-law while she was in the hospital, and to assist with making funeral arrangements; and to attend a meeting with the Coroner who was investigating the cause of her mother-in-law’s death.

5On September 30, 2016, the grievor submitted an application requesting that the eight vacation days she had utilized with respect to her mother-in-law’s illness/passing

be converted to paid special and compassionate leave days, pursuant to Article 25.1 of the collective agreement.

6The grievor, in 2016, had been previously granted three compassionate leave days in accordance with Article 49.1 of the collective agreement with respect to absences she incurred in relation to her mother-in-law’s illness. Additionally, she received three days of bereavement leave, pursuant to Article 74.1 of the collective agreement with respect to her mother-in-law’s death.

7The grievor’s application for special and compassionate leave was not approved by the Employer. A cited reason for the leave request not being approved was that the request came “after the fact”, subsequent to the grievor having already taken the days in question as vacation. In this regard, the Employer claimed it did not have an opportunity to discuss with the grievor in advance whether certain aspects of her desire to be with her mother-in-law and attend to the needs of her family, could, in some manner, have been accommodated, short of the grievor being absent from work for the eight days in question. Reliance was also placed on the fact that the grievor had been previously granted three days off with pay pursuant to Article 49.1, and had already received her entitlement to bereavement leave as contemplated under the collective agreement.

The Relevant Provisions of the Collective Agreement: [8] Article 25 – Leave – Special

25.1 Leave of absence with pay may be granted for special or compassionate purposes to an employee for a period of:

a) not more than six (6) months with the approval of his or her Deputy Minister; and

b) over six (6) months upon the certificate of the Public Service Commission. Article 49.1 – 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.

9The grievor’s request that the days in question be viewed as compassionate leave days pursuant to Article 25.1 of the collective agreement is, at one level, understandable. She was required to expend vacation days so that she could be with her mother-in-law and her family as they were dealing with the unfortunate circumstances associated with her mother-in-law’s illness and passing. That being said, an arbitrator does not have the inherent power to provide relief under the rubric of what is “fair”. An arbitrator’s remedial jurisdiction is dependent on a finding that there has been a violation of the collective agreement. In the case at hand, it is my determination that there is an insufficient basis to conclude that the Employer violated the collective agreement by denying the grievor’s request.

10In support of its position, the Union referenced two decisions of the GSB: Thurman and the Ministry of Health and Long-Term Care GSB # 0698/01 (Johnston)

and Perretta and the Ministry of Finance GSB # 2002-2321 (Bloch). Notwithstanding

that those cases were related to circumstances associated with an employee being denied a request for special and compassionate leave under Article 49.1 of the collective agreement, certain aspects of the analysis set out in those decisions does have some relevancy in assessing the grievor’s claim in the case at hand. In particular,

those cases affirm that with respect to reviewing an Employer’s decision to not grant an employee special and compassionate leave under the collective agreement, it is not appropriate for an arbitrator to apply a test of correctness to the Employer’s decision making. Rather the relevant test is whether the decision was made in good faith, free from arbitrariness and discrimination; and constituted a reasonable exercise of discretion.

11In this case, the Employer assessed the individual circumstances associated with the grievor’s request and decided that extraordinary circumstances did not exist which would support the appropriateness of granting such a request for special and compassionate leave. In arriving at that decision, the Employer also considered the fact that the request came in after the grievor had already utilized vacation days on the dates in question. The Employer further took into consideration that the grievor had already received three days of compassionate leave regarding her mother-in-law’s illness pursuant to Article 49.1 of the collective agreement— the agreed-to maximum level of entitlement under that provision. The consideration of those factors was not, in my view, inappropriate, and there is no basis to suggest the Employer’s decision was otherwise made in bad faith, or arbitrary or discriminatory in nature, or unreasonable.

12In light of the above, the grievance is, hereby, dismissed.