GSB# 2018-1153

UNION# 2018-5112-0084

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Motyka)

Union

• and -

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

Employer

BEFORE

Gail Misra

Arbitrator

FOR THE UNION

Dan Sidsworth Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Emily Lewis Treasury Board Secretariat Employee Relations Advisor

HEARING

September 17, 2020 (by videoconference)

DECISION

1The Employer and the Union at the Toronto South Detention Centre (“TSDC”) agreed to participate in mediation-arbitration in accordance with the Local Mediation-Arbitration Protocol that has been negotiated by the parties. Should mediation not result in resolution of a grievance, pursuant to the Protocol, they have agreed to a mediation-arbitration process by which each party provides the Arbitrator with their submissions setting out their respective facts and the authorities they may be relying upon. This decision is issued in accordance with the Protocol and with Article 22.16 of the collective agreement, so that it is without precedent or prejudice to any other matters between the parties, and is issued without written reasons.

2Edyta Motyka filed a grievance dated April 23, 2018 claiming that the Employer had violated Article 49 of the Collective Agreement when it failed to grant Ms. Motyka’s request for a day of compassionate leave on December 28, 2017. The remedy sought is payment for the 12 hour shift.

3Ms. Motyka is a Correctional Officer at the TSDC. She was scheduled to work on December 28, 2017 between 7 p.m. and 7 a.m. At about 5 p.m. on December 28^th^ the Grievor was unable to open her car door as it was frozen shut. When she got in through the passenger side door, the car would not start. She therefore called the General Duty Manager (GDM), Sergeant Eno, at 5:15 p.m. to advise him of her situation. She indicated that as a result of her car trouble, she would not be able to attend for her shift that night. She was therefore marked as on leave, without pay, for the shift.

4On January 1, 2018 the Grievor made a request that the December 28, 2017 shift that she was unable to attend at work be considered a compassionate day, and that she be paid for it. Her request for a compassionate day was first denied on February 1, 2018, but she was granted a day of leave without pay.

5The Grievor requested reconsideration. On March 8, 2018 her request was denied by the Leave of Absence Review Committee as the Employer determined that it did not meet the criteria for compassionate leave.

6On March 22, 2018 the Grievor submitted an appeal regarding the denial of the compassionate leave day. This time she added more details and documents to support her claim. She added that following her call to the GDM on December 28^th^, she had called her mechanic and was told she could bring her car in, but they could not say how long it would take to fix as it depended on what the problem was. The Grievor then contacted her father, who arranged with a friend to tow her car to the garage, which was located in Hornby, near Milton.

7The vehicle was at the garage by 8 p.m., a battery issue was diagnosed, as was a door jamming issue, and both were fixed within an hour. Ms. Motyka waited at the garage, and then drove to her home in Mississauga.

8As part of her package of documents provided on her appeal, the Grievor included a Google Maps print out dated January 11, 2018, indicating the route options between the garage and the TSDC, and how long it would take for the various routes. For the slowest route, it would have taken 55 minutes to get to the institution.

9On April 12, 2018 the Grievor was advised that her appeal and documents had been reviewed by senior administration, and the decision remained unchanged, so a paid compassionate day was not approved. That led to the filing of this grievance.

10The Employer points out that this event occurred during the period between Christmas and New Year’s, when the Grievor would have known that the TSDC was short-staffed, and was in need of COs. Yet there was no evidence that the Grievor had made any attempts to get to work any other way after she found out at 5 p.m. that her car was not working. While she states that she called her father to arrange for towing of her vehicle, there is no evidence that she asked anyone to give her a ride to work.

11Furthermore, she made no effort to contact her employer at around 9 p.m., when her car was fixed, to ask the GDM if it would be helpful for her to come to work for the remainder of her shift. According to the Google map provided by the Grievor, at that juncture, she could likely have been at work within an hour.

12Pursuant to Article 49, no more than three days of leave with pay may be granted to an employee in a year upon special or compassionate grounds. The Employer maintains the discretion to grant a request for special or compassionate leave, and it must consider each request on its own merits.

13Having considered the submissions of the parties and the documentation provided, I can find no breach of Article 49 of the collective agreement. I am satisfied that the Employer gave due consideration to the Grievor’s request, and there is nothing arbitrary or unfair in its assessment that her circumstances did not merit the granting of a special or compassionate paid day.

14The grievance is hereby dismissed.