GSB#2021-2031

UNION#2021-0230-0016

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Franklin)

Union

• and -

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

Employer

BEFORE

Gordon F. Luborsky

Arbitrator

FOR THE UNION

Andrew Mindszenthy Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Ben Jensen Treasury Board Secretariat Employee Relations Advisor

HEARING

April 11, 2023

Decision

1The parties agree I have been properly appointed to adjudicate a grievance alleging the Employer violated article 25.1 of the collective agreement when it denied the Grievor’s request for a compassionate leave of absence with pay to cover the full period of July 12, 2021 to September 6, 2021 (less pre-booked vacation time), when she was off work in circumstances described below.

2Article 25.1 of the collective agreement states in relevant part:

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 Services Commission.

3The parties also agree that in dealing with this dispute I am procedurally governed by article 22.16, which states in relevant part:

22.16.1 Except for grievances concerning dismissal, sexual harassment, and/or human rights, and Union grievances with corporate policy implications, all grievances shall proceed through the GSB to a single mediator/arbitrator for the purpose of resolving the grievance in an expeditious and informal manner.

22.16.2 The mediator/arbitrator shall endeavour to assist the parties to settle the grievance by mediation. If the parties are unable to settle the grievance by mediation, the mediator/arbitrator shall determine the grievance by arbitration. When determining the grievance by arbitration, the mediator/arbitrator may limit the nature and extent of the evidence and may impose such conditions as he or she considers appropriate. The mediator/arbitrator shall give a succinct decision within five (5) days after completing proceedings, unless the parties agree otherwise.

4Having facilitated settlement discussions at the outset of the proceedings that failed to resolve the dispute, I heard evidence from Ms. Olga Constantopoulos, who is the “Sr. Program Manager for Central Region 2”. Ms. Constantopoulos supervises 10 managers who oversee the Ontario Disability Support Program (“ODSP"), which includes the “Kitchener Office” where the Grievor worked. There are five offices within Central Region 2, each having 30 – 40 employees for a total of some 200 workers, along with 12 direct reports and 10 managers also reporting to Ms. Constantopoulos. As Sr. Program Manager, Ms. Constantopoulos is responsible for determining leave of absence requests with pay for all employees in Central Region 2 for special or compassionate reasons.

5The Grievor has been employed in the Ontario Public Service for 22 years, the last 15 as a member of the ODSP. She is married with two young children. Her evidence describing the circumstances leading to her request for compassionate leave with pay is not disputed, which may be summarized as follows.

6The Grievor’s husband, who is self-employed, was involved in a serious accident in or about the first week of July 2021 while driving his motorcycle in the Ottawa area, requiring urgent surgery and ongoing medical care (including occasional travel to and from the Ottawa hospital where his surgeon was located). During his convalescence, the husband remained immobile in bed, with his two arms in full casts beginning on or about July 12, 2021. He consequently needed assistance with all functions of everyday living, including dressing, bathing, eating and bathroom attendance.

7While the Grievor had some support from her extended family (primarily of siblings and older parents), she felt only she could help her husband with the more intimate details of daily living, which combined with her duties as a mother with two young children was overwhelming. The Grievor did not believe the family could afford the services of a Personal Support Worker to assist her husband, placing the primary burden of sustaining the family unit on the Grievor alone.

8The Grievor immediately requested, and was granted, time off work to care of her husband during his convalescence; but the question arose whether that lost time would be unpaid or paid in whole or in part under the compassionate leave provisions of the collective agreement, which the Grievor was advised (through her direct supervisor) would be determined by Ms. Constantopoulos. Early attempts by the Grievor to work from her residence proved unsatisfactory (given the understandable distractions that the Grievor faced at home). The Employer’s suggestions that the Grievor apply for various forms of financial assistance from other government agencies were, from the Grievor’s perspective, unavailable based on the Grievor’s research of Internet sources. The Employer complained that the Grievor made it clear she would only accept compensation from the Employer for all of her time off.

9Consequently, the Grievor was off work continuously from July 12, 2021 until August 10, 2021, when she commenced a planned vacation absence with her family. The Grievor’s family (including parents and at least one sibling) traditionally rented a cottage together during that timeframe, which the Grievor did not want to cancel. Thus she and her children and her husband stayed at the cottage together from August 10 until August 20, while the Grievor received her expected vacation pay. The Grievor continued to provide her husband with the necessities of everyday living at the cottage, with some relief from other family members who helped out with childcare duties.

10On returning home, the Grievor remained off work while attending to the needs of her husband until September 6, when her husband’s casts were removed, following which she felt capable of resuming her usual work at the Kitchener office. Although there is some dispute on whether she cooperated in efforts to perform work from her home or to seek alternate forms of funding from government and/or healthcare agencies, that dispute is immaterial to the present grievance.

11Through a series of e-mail communications between the Grievor and her direct supervisor, the Grievor requested paid compassionate leave covering the 16 days she would have otherwise been at work from July 12 to August 10. She also asked for paid compassionate leave for the 9 workdays from August 20 until September 6 when her husband’s arm casts were removed. The Grievor did not request compassionate leave with pay while she was on vacation and in receipt of vacation pay.

12There was never any reluctance by the Employer to grant the Grievor the time off work she needed to attend to her husband’s needs during his convalescence without pay, which the Grievor could cover by using vacation credits and banked time that was available to her through a program under the collective agreement referred to as “CWW” that allows employees to accumulate additional hours during the week, for use in a future Leave of Absence with pay.

13Instead, the Employer’s focus was the Grievor’s request for a paid leave of absence for what amounted to 25 working days. In doing so, Ms. Constantopoulos directed her mind to what she referred to as a “balancing process” of assessing what was reasonable to expect the Grievor to do from her own resources to cover her loss (such as accessing social assistance programs and marshalling family help), while accepting that it would likely take the Grievor some time to adjust to the unexpected needs suddenly thrust upon her by her husband’s unexpected accident.

14The parties agree there is no “right” to compassionate leave with pay conferred by the collective agreement. Rather, article 25.1 gives the Employer a broad and undefined discretion to grant or deny compassionate leave with pay, which is assessed on a standard of reasonableness. Ms. Constantopoulos testified the Employer looks at each case on its own merits from all the information it can garner in deciding whether, and to what extent, the Employer will exercise its discretion in the matter. To that end, Ms. Constantopoulos conferred with the Grievor’s direct supervisor and consulted with the Employer’s Human Resources advisors. Through a series of questions to the Grievor (transmitted via her supervisor) Ms. Constantopoulos was informed of the details of the Grievor’s circumstances.

15Given the suddenness of the motorcycle accident which gave the Grievor little opportunity to plan for her husband’s necessary care, Ms. Constantopoulos was of the view that it would take the Grievor a period of time to put resources in place to assist her husband at the beginning of his convalescence. However with the passage of time, based on Ms. Constantopoulos’ research on the matter (which obviously differed from the Grievor’s), it was her opinion that the Grievor could have accessed government funded or personal/family resources to provide the required care and/or fund the Grievor’s time away from work. There is also evidence the Grievor’s husband received Employment Insurance during that period, as one source of income replacement.

16Consequently, arising out of her consideration of all of the available information, Ms. Constantopoulos concluded it was reasonable to grant the Grievor’s request for compassionate leave with pay for the first 16 lost workdays, covering the period between July 12 – August 10. But the further request for 9 lost workdays after the Grievor’s vacation absence from August 20 to September 6 was denied. This amounted to the Grievor receiving compensation for just under 2/3 of her lost time (i.e. the first 16 days) while denying her request for the final 1/3 of her time away from work (during the last 9 days).

17As it turned out, the Grievor received full payment for the final 9 days of her absence from work by utilizing one day from her CWW bank and vacation time to her credit for the remaining days.

18The Union argued that Ms. Constantopoulos’ decision was arbitrary, thereby constituting a violation of the compassionate leave provision in article 25.1 which requires the Employer to exercise its discretion in granting compassionate leave with pay in a reasonable manner, that is without discrimination or in bad faith. Having concluded the Grievor should receive a leave of absence with pay for compassionate reasons during the first 16 days of lost work between July 12 and August 10, there was no logic to the Employer’s decision to deny the request for the final 9 days of lost work from August 20 to September 6, in the Union’s submission.

19The Employer argued there is no absolute entitlement to compassionate leave with pay under the collective agreement. Rather, article 25.1 directed the Employer to consider all relevant facts (and no irrelevant ones) leading to the exercise of its discretion to grant or deny such leave while acting reasonably. The Employer also submitted that under the collective agreement it had discretion to grant all, none, or part of a claim for compassionate leave with pay. Given Ms. Constantopoulos’ review of all the surrounding circumstances and her honest assessment of the matter in the context of balancing the needs and expectations of all the employees in Central Region 2 of the ODPS, the Union had failed to satisfy its onus to prove any violation of the collective agreement, according to the Employer.

20The test in a case of this nature is to assess whether the Employer made a decision within a “range of reasonableness”, which is an objective as opposed to subjective test. There is no one answer to what is a reasonable option in the circumstances of any case of this nature. While my view on the matter might be otherwise, it is not appropriate for the arbitrator to impose his or her personal opinion on what is or is not “fair”. Rather, the arbitrator’s task is to ask whether the exercise of the Employer’s discretion (including the decisionmaker’s methodology and considerations) achieved an outcome that was objectively within a range of reasonableness. Unless there is evidence of insufficient and/or improper considerations by the Employer and/or a patently unreasonable result, an arbitrator ought to be reluctant to intervene with the Employer’s good faith determination.

21Having conducted that assessment, on the evidence and submissions before me, it is my opinion that the Employer has satisfied the required test.

22The evidence shows that Ms. Constantopoulos was not motivated by bad faith. She asked (through the Grievor’s direct supervisor), relevant questions and there was no evidence to suggest she considered any irrelevant matters in her decision-making process. She came to a conclusion based on reasonable considerations that it was appropriate to exercise the Employer’s discretion to grant the Grievor slightly less than 2/3 of her lost time, that is objectively supported by the evidence. And, although the Grievor felt the result “unfair”, which is a natural reaction by a person with a personal interest in the outcome of the decision, the Union has failed to discharge its onus to show any impropriety of process or unreasonable outcome in leading to the Employer’s ultimate determination. Thus, there is nothing shown in the Employer’s process and ultimate decision justifying arbitral interference in the exercise of its discretion.

23Consequently, for all the foregoing reasons, the Union’s grievance must be and is hereby dismissed.