GSB# 2020-1339

UNION# 2020-5112-0191

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Valentino)

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

James Cheng Treasury Board Secretariat Employee Relations Advisor

HEARING

February 17, 2021

DECISION

1The Employer and the Union at the Toronto South Detention (“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.

2Nicola Valentino filed a grievance dated July 14, 2020 claiming that the Employer had violated Article 49, and other provisions, of the Collective Agreement when it unreasonably denied the Grievor’s request for one day of compassionate leave on January 17, 2020. By way of remedy the Grievor seeks to have the Employer return to his time bank one shift of Compensating Time Owing (CTO) which it deducted at the time rather than grant him a paid compassionate day.

3The Grievor is a Correctional Officer at the TSDC. On January 16, 2020 the Grievor parked his vehicle in a parking lot at around 7 p.m. while he was attending a martial arts class. When he returned to his vehicle around 9 p.m. he found that it had been severely damaged, with the rear passenger door dented, and the window smashed. As such, the Grievor went directly to a police station and completed a collision report there. By the time he had completed the reporting it was 10 p.m.

4Since the Grievor was scheduled to work the following morning on a 7 a.m. to 7 p.m. shift, he realized he would not be able to get to work because of the significant damage to his vehicle, and he needed to get the vehicle fixed. Mr. Valentino called in to work to advise the General Duty Manager (GDM) of his situation and that he would be unable to come in for his shift. He indicated that he had to take his vehicle in to be fixed, and had to arrange alternate transportation so that he could go to work for his other scheduled shifts. Based on the circumstances, the Grievor requested a day of compassionate leave.

5According to the Employer, when employees call into the GDM to advise that they cannot come in for their imminent shift due to issues that appear to be legitimately time sensitive, the GDM will generally permit the person to not attend at work, but advises that the issue of how the shift will be characterized will be addressed later. GDMs do not determine whether an employee will be granted a special or compassionate day when taking a call from an employee asking to absent themselves from work on short notice. The employee is told to complete an Occurrence Report (OR) when they next come in to work.

6Based on the circumstances outlined above, the Grievor formally requested the January 17, 2020 shift that he had to take off as a compassionate leave day. On June 18, 2020 his request was denied, and he was advised that he could use a lieu day or a vacation credit for the absence in order to be paid for it.

7When the Grievor asked for the reason for the denial of his request he was told that the Leave of Absence Review Committee believed he could have done a shift change or taken alternate transportation such as transit or the GO train to work.

8In response, the Grievor again explained the timing of the vandalism or damage to his vehicle, and that he could not arrange a shift change when he had only left the police station at around 10 p.m. on the night of the accident; he could not call other staff who were off work to try to arrange a shift exchange at that hour of the night; his shift was to start at 7 a.m. the following morning and was a 12 hour shift; and he also had to make arrangements to get his vehicle fixed, which meant he had to take it in during hours when the garage was open.

9The Grievor also explained that he lives in Brampton, and that the GO train or public transit were not a viable option as he believed it would take him 2.5 hrs. to get to work, and another 2.5 hrs. to get home at the end of his shift, making for a 19 hour day.

10On July 2, 2020 a Deputy Superintendent and Staff Services Manager met with the Grievor and a union representative to discuss Mr. Valentino’s appeal of the Committee’s refusal to grant him a compassionate leave day. The Grievor again explained that he felt the circumstances had been out of his control; that the damage to his vehicle could not have been predicted; and that given the late hour of the night, he could not have done a shift change with a colleague. He understood that the TSDC policy was that special and compassionate leave is for unforeseen circumstances.

11While the Deputy Superintendent agreed that the damage to his car was an unforeseen event, she indicated that the Grievor could have asked the GDM to have his shift changed to another date, or taken public transit, and that it is his responsibility to have an alternate plan should some event impact his ability to attend work.

12The Grievor’s appeal was denied, which led to the filing of this grievance.

13The Grievor states that he did what he could in the particular circumstances, and in fact since his vehicle could not be fixed for some days, he had borrowed his wife’s car for the following shift, and then borrowed a vehicle from a family member until the garage could install a replacement door on his car. He had only asked for one compassionate leave day for the shift immediately following the damage to his car because of the timing of the incident.

14The Employer argues it has turned its mind to the issue and maintains its position that the Grievor could have arranged a shift exchange, could have asked to have his shift changed, or could have taken public transit to work on January 17th, and as such, it has denied his request for a compassionate leave day. It believes he could have taken the GO train at 5:53 a.m., which it claims would have got him to work at 6:58 a.m.

15Pursuant 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 retains the discretion to grant a request for special or compassionate leave, and it must consider each request on its own merits.

16In Ontario Public Service Employees Union (Taylor et al) and Ministry of Community Safety and Correctional Services, 2014 CanLII 30090 (ON GSB), the Board outlined the factors to be considered in the proper exercise of discretion as follows:

9. In OPSEU (Kuyntjes) and Ministry of Transportation and Communications, supra, the Vice-Chair describes at page 16 the kind of considerations arbitrators take into account when assessing whether there has been a proper exercise of discretion as follows:

In cases involving the exercise of managerial discretion, Boards of Arbitration generally hesitate to substitute their view for that of the decision-maker, which is a recognition of the fact that Boards have less familiarity than does the Employer with the exigencies of the work place. However, Arbitrators must ensure that decisions are made within the confines of certain minimum standards of administrative justice. Those administrative law concepts relating to the proper exercise of discretion include the following considerations:

1. The decision must be made in good faith and without discrimination.

2. It must be a genuine exercise of discretionary power, as opposed to rigid policy adherence.

3. Consideration must be given to the merits of the individual application.

4. All relevant facts must be considered and conversely irrelevant considerations must be rejected.

17Having considered the documents submitted and the submissions of the parties, I find that the Employer breached Article 49 of the collective agreement in the exercise of its discretion in this case in that it does not appear to have engaged in a genuine exercise of its discretionary power given the particular facts of Mr. Valentino’s situation on the night in question. In the appeal meeting, it is clear that the Employer’s view was that no matter what the hour of the night, and no matter what the circumstances, its view is that if one drives to work in one’s own automobile, one must have an alternate plan in place in case of unforeseen circumstances. While that may be a generally prudent idea, it is simply not possible to always have an alternate plan in place at 10 p.m. or later when one has to be at work by 7 a.m. the following morning.

18I am satisfied that Mr. Valentino was upset about finding his vehicle very damaged in the parking lot on January 16, 2020, and that by 10 p.m., after having made a report to the police, it was too late to find someone else with whom he could have done a shift exchange. It seems clear that at the time and given the situation he had been dealing with, it did not occur to him to ask the Employer to change his shift. I also accept that he knew he had to have his vehicle fixed as soon as possible, especially since it was the winter, and the rear window had been smashed. Furthermore, if he had been working from 7 a.m. to 7 p.m. on January 17th, he could not have taken his vehicle in to be repaired.

19For the reasons outlined above, the grievance is upheld. The Employer is directed to record the January 17, 2020 shift as a day of compassionate leave, and to return to the Grievor whatever credit it had used at the time to pay Mr. Valentino for that shift.

20I will remain seized in the event any issues arise out of the implementation of this award.