GSB# 2018-2507

UNION# 2018-0526-0033

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Ruttle)

Union

• and –

The Crown in Right of Ontario (Ministry of the Attorney General)

Employer

BEFORE

Joseph Carrier

Arbitrator

FOR THE UNION

David Ragni Koskie Minsky LLP Counsel

FOR THE EMPLOYER

Jared Friesen Treasury Board Secretariat Employee Relations Advisor

HEARING

June 10, 2019

Decision

1In the case at hand, Mr. Michael Ruttle, a Flexible Part-Time Senior Court Services Officer, grieved that the letter of discipline he received January 24, 2018 for insubordination, having absented himself from work without leave and against instructions, from December 12, 2017 to December 20, 2017 was unjust.

2I have considered the extensive agreed statement of facts provided by Counsel for which I thank them. I have also taken into account their able submissions. I have concluded that the discipline was appropriate in all the circumstances and that the letter of discipline was easily within the realm of an appropriate penalty.

3Since this matter came before me pursuant to Article 22.16 of the Parties Collective Agreement, my brief and intentionally succinct reasoning is as follows:

1. The Parties’ Agreement provided that requested leaves without pay would not be unreasonably denied.

2. At the time he actually took the leave commencing December 12, 2017, the Grievor had previously been specifically advised not to book a planned family vacation for that period until he received approval for his leave.

3. In October, 2017 he had booked a trip before receiving such approval. On that earlier occasion, his supervisor, while granting the leave on short notice, had warned him not to do so in future as approval might be denied.

4. In the current situation, the Grievor had requested the leave on November 24, 2017. His supervisor had then specifically reminded the Grievor not to book the trip before receiving approval for the leave. She was aware that the Courts would be unusually busy during much of the requested leave period. However, she did not yet deny the leave without investigating operational requirements.

5. The supervisor performed her due diligence and determined that she could not approve the requested leave at that time due to operational requirements.

6. I have considered the evidence, facts and submissions and am satisfied that the supervisor’s decision concerning operational requirements was reasonable as was her denial for the Grievor’s request for leave during the relevant time frame.

7. Although, he had been reminded not to book the trip on November 24, the Grievor had proceeded to do so on November 29.

8. I am of the view that even then he was determined to take the leave with or without approval.

9. When, on December 6, he learned of the denial, he advised the Manager and his supervisor that he had booked the trip and would not be available from December 12 to 20. In that discussion, he was told again that he was expected to attend but the Grievor was adamant that he would proceed regardless of the consequences.

10. On December 11, the Grievor’s supervisor told him that there had been no change to operational requirements since December 6, that his leave was not approved and that he was expected to be available.

11. The Grievor confirmed his intention to proceed with his trip regardless, and, indeed, he did so.

4In the circumstances, I find that:

a) The employer’s operational requirements were valid for the time frame requested.

b) Therefore, the denial of the leave was not, in itself, unreasonable.

c) That the denial was not confirmed until December 6, did not make it “unreasonable”. The Grievor was forewarned not to book the trip on November 24 and, but for having done so, would have suffered no damage as a result of the denial.

d) There are exceptions to the “obey now, grieve later” rule such as, that to obey the instruction would be unsafe or illegal. However, obeying a legitimate instruction to be available for work does not put the employee in jeopardy nor is the harm of missing the family vacation at that time so substantial as to trump the employer’s operational needs. (See: Black Diamond Cheese v C.F.a.W., Local P-688, 1973 CarswellOnt 1476, {1973} O.L.A.A. No. 65, 1973 CanLII 2134 (ON LA), 3 L.A.C(2^nd)151).

e) Here, had the Grievor not booked the trip contrary to his supervisor’s advice, he would have suffered no harm whatsoever but for the lost opportunity at that specific time of a family vacation. Although unfortunate, few employees are able to schedule holidays whenever it suits them and/or their families.

f) In all the circumstances, the Grievor was absent without leave contrary to express instructions. The letter of discipline was well warranted.

g) The grievance is dismissed. The foregoing constitutes my decision in this matter.