GSB# 2022-12098

UNION# 2023-0584-0003

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Degan)

Union

• and -

The Crown in Right of Ontario (Ontario Clean Water Agency)

Employer

BEFORE

Gordon F. Luborsky

Arbitrator

FOR THE UNION

Sarah Khan Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Jordanna Lewis Treasury Board Secretariat Legal Services Branch Counsel

HEARINGS

November 14, 2023, May 23, 2024

Decision

What this case is about

1The parties agree I have been properly appointed as arbitrator under their collective agreement to decide the Union’s grievance dated February 13, 2023 on behalf of the Grievor, Mr. Peter Degan, alleging he was unjustly disciplined by the Employer in the form of a “one day suspension without pay”.

2The Employer, Ontario Clean Water Agency (“OCWA”), manages water treatment and transmission facilities throughout the province of Ontario that are 24-hour, 365-day operations requiring the continuous rotation of qualified staff. The facility at issue is the South Peel Drinking Water System.

3The Grievor has been employed with the OCWA for 35 years, primarily as a “Water and Wastewater Technician” on the “Transmission” side of the operation, and has been active in the affairs of the Union. Before the events leading to the present grievance, the Grievor had a clean disciplinary record. The Grievor was typically scheduled for 12-hour shifts according to a set rotation of day and night coverage, and knew when he would normally be scheduled to work years in advance.

4In circumstances described below, the Grievor notified the Employer in the evening of Monday, January 16, 2023 of his need to miss his next 12-hour shift beginning 7:00 p.m. on Tuesday, January 17, 2023 in order to attend a group grievance where he was one of the named grievors, scheduled to be heard before the Grievance Settlement Board (“GSB”) on Wednesday, January 18, 2023. While that was not a working day for the Grievor, since the GSB proceeding was set to begin at 10:00 a.m., the Grievor needed to cancel his scheduled 12-hour shift from 7:00 p.m. Tuesday, January 17 to 7:00 a.m. Wednesday, January 18 in order to be fit to attend the entire arbitration hearing as a named grievor in the proceeding.

5Even though the Grievor’s request for the time off with pay was granted, the Employer claimed the very short notice (being about 12 hours) was contrary to section 5.3.4 of its policy entitled “Personnel Coverage” governing time off requests for “planned absences”, which requires the Grievor to “make every effort to provide written notice of planned absences at least four (4) weeks’ in advance to provide sufficient time to arrange shift coverage”. The policy also states that, “If an employee cannot provide four (4) weeks advance notice for their planned absences, the employee is expected to provide reasoning to management behind the short notice.” But because of the short notice, the Employer claims it had to pay overtime for the Grievor’s replacement, which the Grievor’s manager, Mr. Alton Williams, considered an abuse of the well-known policy on the matter, justifying discipline for the Grievor.

6Consequently, after reviewing circumstances with the Grievor and considering his explanations at a “fact-finding” meeting held on January 30, 2023, Mr. Williams issued a letter of discipline to the Grievor dated February 8, 2023, stating in relevant part that a one-day suspension without pay was determined to be the appropriate penalty for the Grievor’s alleged misconduct in: (a) providing “insufficient notice to management regarding [the Grievor’s] attendance at the Grievance Settlement Board (“GSB”) meeting scheduled on January 18, 2023”; (b) “[and the Grievor’s] inability to attend [his] scheduled shifts on January 17, 2023”; which (c) “caused undue scheduling stress for management”.

7The Union’s subsequent grievance now before me claims the discipline was “unjust, in violation of (but not limited to) articles 2 (Management Rights), 3 (No Discrimination), 22 (Grievance Procedure) and any other articles or legislation that may apply.” It demands as remedy, “Full redress” including: “(1) the suspension be reversed; (2) the Grievor be awarded full back pay, benefits, and credits; (3) interest on these monies paid at the appropriate formulae; (4) any other remedy that in the opinion of the arbitrator will make the Grievor whole; (5) the removal of all information related to the discipline from the Grievor’s employment file; and (6) a written apology letter from the Employer to the Grievor.”

8In accordance with article 22.16.2 of the collective agreement, I endeavored as “mediator/arbitrator” to assist the parties in settling the dispute during the first day of hearing (which the parties asked to be confined to mediation efforts only). When that effort failed to resolve the dispute, I established an expedited process with the parties’ input to hear all relevant evidence and argument in a single day.

9I consequently received testimony in the form of a written “Will-Say Statement” on behalf of the Employer from the Grievor’s direct supervisor, Mr. Alton Williams, who is a Senior Operations Manager (Transmission), and was subject to oral cross-examination by the Union’s representative at arbitration. I also received the Will-Say Statements on behalf of the Union from the Grievor and Mr. Chris Eckert, the president of Local Union 584 (which is the applicable Local Union in this case), who were orally cross-examined on their written statements by Employer counsel. The parties then argued the merits of their respective positions on the grievance in accordance with an agreed expedited protocol that included references to relevant caselaw.

10As further mandated by article 22.16.2, I am now required to “give a succinct decision within five (5) days after completing proceedings, unless the parties agree otherwise.” (I advised the parties I would take about two weeks to issue my Award, without objection.) Thus, while the parties’ combined evidence, documentation and legal arguments were comprehensive, I have limited my Reasons on the merits of the grievance to the essential factual findings in answering three questions: (1) Did the Employer have just cause to discipline the Grievor? (2) If so, was a one-day suspension without pay an appropriate penalty in all of the circumstances of this case? (3) If not, what is the appropriate sanction that I am authorized under the collective agreement to substitute for the penalty issued by the Employer?

Relevant contractual and policy provisions

11In considering the forgoing questions, I have been guided by the following provisions of the parties’ collective agreement dated January 1, 2022 to December 31, 2024:

ARTICLE 2 – MANAGEMENT RIGHTS

2.1 For purposes of this Collective Agreement to which the parties are subject, the right and authority to manage the business and direct the workforce, including the right to hire and layoff, appoint, assign and direct employees; evaluate and classify positions; discipline, dismiss or suspend employees for just cause; determine organization, staffing levels, work methods, the location of the workplace, the kinds and locations of equipment, the merit system, training and development and appraisal; and make reasonable rules and regulations, shall be vested exclusively in the Employer. It is agreed that these rights are subject only to the provisions of this Collective Agreement to which the parties are subject.

ARTICLE 22 – GRIEVANCE PROCEDURE

22.5 FORMAL RESOLUTION STAGE

22.5.1 An employee who is a grievor or complainant and who makes application, through the Union, for a hearing before the GSB or the Ontario Labour Relations Board (OLRB) shall be allowed leave of absence with no loss of pay and with no loss of credits, if required to be in attendance by the Board or Tribunal. Article 22.5.1 shall also apply to pre-hearings, mediation/arbitration or mediation under auspices of the GSB or OLRB.

22.5.2 An employee who has a grievance and is required to attend meetings at the Formal Resolution Stage of the grievance procedure shall be given time off with no loss of pay and with no loss of credits to attend such meetings.

22.11 GROUP GRIEANCE

22.11.1 In the event that more than one (1) employee is directly affected by one specific incident or circumstance and each employee would be entitled to grieve, a group grievance shall be presented in writing by the Union signed by such employees to the Director, Centre for Employee Relations at the Formal Resolution Stage, within the time limits as specified in Article 22.2. Up to three (3) grievors of the group shall be entitled to be present at all Stages unless otherwise mutually agreed.

[Emphasis added]

12For clarity, article 3 of the collective agreement, entitled “No Discrimination/Employment Equity” which expressly prohibits “discrimination practiced by reason of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, or disability as defined in section 10(1) of the Ontario Human Rights Code (OHRC)”, that the Union cited in its statement of grievance dated February 13, 2023, has no relevance to the evidence and factual findings in this case, and was not referred to by the parties in argument.

13However, the following provisions of the Employer’s policies promulgated under its authority granted by article 2 of the collective agreement to “make reasonable rules and regulations” governing operations at the South Peel Drinking Water System, referred to as its “Quality and Management Systems” or “QEMS” under the heading, “Personnel Coverage”, are relevant to the disposition of the grievance:

1.0 Purpose

To describe the procedure for ensuring that sufficient and competent personnel are available for duties that directly affect drinking water quality.

4.0 Definitions

Overall Responsible Operator (ORO) – The Owner or operating authority designates an overall responsibility operator (ORO) to ensure that a knowledgeable, experienced staff person is available at all times to provide advice to all operators working within the subsystem and to respond to emergencies.

5.0 Procedure

5.3 Absences, Vacations, Notifications, Approvals

5.3.3 Time off taken by employees can be planned or unplanned. Planned absences include vacation, training, RDD, pregnancy/parental leave, jury duty, religious holiday, etc. Unplanned absences include illness/injury, bereavement, etc.

5.3.4 The employee should make every effort to provide written notice of planned absences at least four (4) weeks in advance to provide sufficient time to arrange shift coverage. If an employee cannot provide four (4) weeks advance notice for their planned absences, the employee is expected to provide reasoning to management behind the short notice.

5.3.5 Planned Absences – To request a planned leave of absence, employees shall complete FORM 1-0144-Leave Request. Vacation leave requests should be submitted to their Manager and will be considered on a first come, first serve basis. Planned absence requests shall not be unreasonably denied by the Manager. The operational needs are given first consideration when approving/denying the request. Leave requests pertaining to the summer months (June 1st to August 31st) are considered on the basis of the following criteria:

[Emphasis added]

14There is no dispute the Union and the Grievor were aware of these policies and contractual provisions. There is also no challenge to the reasonableness and consistent application of the Employer’s QEMS policies.

Summary of the evidence

15As noted above, the parties presented their evidence from “Will-Say Statements”, with the author of each subjected to cross-examination by the opposite party in interest. Mr. Williams testified on behalf of the Employer, while the Grievor and Mr. Eckert gave evidence for the Union. The documents relied upon by both parties were also filed on consent. From the compilation of all of this testimony and relevant documentation, I make the following essential findings of fact.

16The Grievor has been active in the affairs of the Union for many years. He, along with Mr. Eckert, were among five named bargaining unit employees on whose behalf the Union filed a group grievance dated August 10, 2019. The Grievor and Mr. Eckert represented the grieving employees when the first day of the arbitration hearing to consider the group grievance was heard by an arbitrator of the GSB on May 13, 2021. That hearing was held on a day that was not a working day for the Grievor; who did not need a leave of absence to attend the arbitration proceedings (which was conducted by videoconference). On July 11, 2022, the GSB sent formal notice to the Union (addressed to the attention of the specific Grievance Officer assigned to the case) that the hearing of the group grievance was scheduled to continue on January 18, 2023. On August 12, 2022, an official from the Union’s head office wrote to Mr. Eckert (in his capacity as president of the Local 584) advising that the Grievance Officer assigned to oversee the grievance from the Union’s perspective would contact him “closer to that hearing date in order to begin preparing your case”. It is apparent that except for the Local president, the Union had not, as of August 12, 2022, determined who among the employees named in the group grievance would need to attend the arbitration hearing on behalf of the Union.

17Although the Grievor was one of two representatives of the five grievors who filed the 2019 group grievance, he testified he did not know if he would be required for the hearing when it reconvened on January 18, 2023, which is corroborated by the documentation filed by the parties. That documentation includes an e-mail from the Grievor to the Grievance Officer dated January 12, 2023, at 7:42 p.m. (after the Grievor had completed his 12-hour shift that day), in response to an earlier e-mail from the Grievance Officer asking who would be attending the arbitration hearing on behalf of the Union, where the Grievor wrote:

I was wondering when the union was gong to reach out to get prepared. I just got home from work and was going to send an email. I will attend the meeting. I am supposed to work night shift Mon. and Tues. January 16 and 17. So I should be able to be off on Tues. Jan. 17 to allow me to be available to attend the meeting on the 18th. I should get paid for the 17th as per the CBA for attending grievance meetings. The union should send notice to my employer that I will be off on the 17th. I will try and provide you with information but I am VERY discouraged at the short notice for us to prepare for this meeting. I am busy all weekend attending a planned family function. I will do my best but understand I am really disappointed with the lack of preparation time for this important case.

18Consistent with his past experiences in such matters, the Grievor presumed the Union was responsible for advising the Employer of who the Union needed from among the five named grievors to attend the group arbitration before at the GSB. Yet, as supported by the filed documentation, the Union’s Grievance Officer did not respond to the Grievor’s January 12 e-mail (above) until 5:52 p.m. on Monday, January 16, 2023, with the following e-mail:

Thanks for confirming your availability for the hearing on Wednesday.

In terms of a time-off letter: in this instance, a time-off letter is not necessary, because you are listed as a grievor under this grievance. Under the CBA, grievors are entitled to time off to attend their own hearings (as you noted) – no letter from OPSEU is needed. You just need to notify your employer that you need time off for the hearing ad to make arrangements with them accordingly.

19When the Grievor reported for his next regularly scheduled 12-hour nightshift at or about 6:30 p.m. on Monday, January 16, 2023, he immediately told his Operation’s Coordinator and Overall Responsible Operator (“ORO”) who is a bargaining unit member, that because the Grievor’s attendance at the GSB hearing on January 18 was required for the group grievance scheduled to be heard that day, he needed to be excused from his scheduled Tuesday, January 17, 2023 nightshift (i.e. from 7 p.m. on January 17 to 7 a.m. on January 18) in order to attend the grievance hearing beginning at 10:00 a.m. on January 18. (The “ORO” is defined in paragraph 4.0 of the above QEMS policy as “an overall responsibility operator to ensure that a knowledgeable, experienced staff person is available at all times to provide advice to all operator working within the subsystem and to respond to emergencies.”)

20The Grievor’s uncontradicted evidence is that the ORO told him that arranging a replacement for the Grievor was “no problem”, and when the Grievor asked if he should advise his manager, Alton Williams, the ORO responded: “Send an e-mail, that would be fine.” Consequently, the Grievor immediately wrote the following e-mail addressed to both the ORO and the Grievor’s manager on January 16 at 7:01 p.m.

Please see attached hearing notice for Wed. Jan. 18, 2023. I’m sure you have been contacted by OCWA [Human Resources] on this matter. I will be attending this meeting, so my night shift on Tuesday Jan. 17, 2023 will need to be covered. I will be paid for my shift as per article 22 of the CBA. If you have any questions just let me know.

21The Grievor’s direct manager, Mr. Williams, an OCWA employee since 2009 (initially in a bargaining unit position), who moved into his current role as Senior Operations Manager (Transmission) in November 2018, was distressed to receive such short notice from the Grievor of his inability to attend his scheduled nightshift beginning 7 p.m. on January 17, 2023. While recognizing time off work (with or without compensation) can be “planned” or “unplanned”, and that the Grievor’s announced absence fell within the “planned” category, Mr. Williams’ expectation (based on the QEMS policy) was that employees were to provide written notice of planned absences at least four weeks in advance to give management sufficient time to arrange shift coverage, in the absence of which the employee was required to provide satisfactory reasons for the short notice.

22Mr. Williams was not involved in the group grievance requiring the Grievor’s attendance and was unaware of the Grievor’s participation in that matter as one of the named grievors. However, he knew the president of Local 584, Mr. Eckert, was going to attend the group grievance hearing as a representative of the Union because Mr. Eckert had submitted written notice on January 1, 2023 of this need to be absent from his regular shift scheduled for January 18 (i.e. some 18 days before the GSB hearing). There was no evidence suggesting Mr. Eckert ever notified the Grievor that his attendance at the arbitration was required.

23Mr. Williams also determined that the GSB sent notice of the hearing date for the group grievance on July 11, 2022 (i.e. more than six months earlier) which the GSB confirmed (on July 13, 2022) with counsel for the Union and the Employer. In these circumstances, Mr. Williams concluded the Union knew or ought to have known it would require the Grievor to be present at the arbitration hearing many months in advance. Neither the Grievor, nor the Union provided Mr. Williams with any reason(s) for the very late notice of the Grievor’s need to miss his January 17 nightshift assignment and, given the much earlier notification to the Union of the hearing date by the GSB, Mr. Williams considered the Grievor’s notice of absence to be unreasonable.

24Furthermore, Mr. Williams noted that the Grievor was not even scheduled to work on January 18, 2023, the date of the GSB hearing. Instead, from Mr. Williams’ perspective, the tone of the Grievor’s e-mail to Mr. Williams of January 16 conveyed an objectionable presumption that the collective agreement required the Employer to give the Grievor time off work, with pay, for the 12-hour shift beginning at 7 p.m. on the evening before the actual arbitration hearing.

25The Grievor’s failure to provide sufficient notice meant that Mr. Williams had to find a replacement operator at overtime rates for the January 17 shift, in addition to paying the Grievor for those same hours, which Mr. Williams considered to be unprofessional, an abuse of process, and contrary to the well-known QEMS operating procedures on the mater.

26Nevertheless, Mr. Williams responded to the Grievor’s January 16, 7:01 p.m. e-mail only 40 minutes after its transmission at 7:41 p.m. stating that coverage for the Grievor’s replacement would be arranged, with the Grievor to receive time off with pay for the January 17 nightshift, in advance of the arbitration proceedings the next day.

27The Grievor and Mr. Eckert consequently attended the arbitration hearing (which was convened remotely as is the current practice before the GSB) on January 18, 2023, in their capacities as the Union representatives and two of the five grievors who had filed the group grievance entitled to participate under the collective agreement, and have attended at least one additional hearing day before the GSB since that time to the present date without controversy. There was no evidence that the Grievor’s attendance at the arbitration was essential or even necessary to the Union’s ability to present its group grievance, as opposed to any of the other grievors who signed the group grievance but did not attend the GSB proceedings. Neither representative of the parties at that hearing raised an issue concerning the late notice of the Grievor’s request to be absent from the previous night shift in order to attend the arbitration.

28However, believing the Grievor’s short notice for missing his January 17, 2023 shift was contrary to the Employer’s policies and unreasonable, Mr. Williams summoned the Grievor and his Union representative, Mr. Eckert, to a formal “fact-finding” meeting held on January 30, 2023, to investigate whether discipline was appropriate for the Grievor’s conduct.

29The Grievor concedes he was argumentative and combative at the fact-finding meeting, which occurred over a remote video link. The Grievor maintained he only knew he was needed by the Union on January 12, and assumed until told otherwise by the Union’s Grievance Officer on January 16 that the Union would be making the arrangements for the Grievor’s absence for the January 17 shift at the level of Human Resources management, which was the practice followed in the past. Once advised he was personally required to arrange for the time off directly with his manager, the Grievor responded immediately by speaking with his ORO and then submitting an e-mail to the ORO and his manager. The outcome was that he was in fact granted leave of absence with pay for the January 17 nightshift by his supervisor, which the Grievor maintained was his right as one of the named grievors in the group grievance being heard at the GSB. The Grievor accordingly felt he was being “attacked” by management, in retaliation for insisting upon his rights under the collective agreement, insisting the Employer had no grounds to discipline him in the circumstances. He conceded in cross-examination that his response was an emotional one, which he testified he regrets but which was understandable in the circumstances.

30Mr. Williams felt otherwise; concluding that the Grievor had acted contrary to the Employer’s policies in providing short notice of his absence to management, and unprofessionally in his demeanor at the fact-finding meeting in violation of the Employer’s “Respectful Workplace Policy” which provides, in part, that all employees “are responsible for respecting the dignity and rights of other employees, other workers and the public they serve” (per para. 7.1). In Mr. William’s view, the Grievor’s disrespectful conduct during the fact-finding conference exacerbated matters.

31The Employer consequently determined that a disciplinary letter imposing a one-day suspension without pay was an appropriate penalty for what the letter of discipline issued to the Grievor on February 8, 2023 characterized as the Grievor’s misconduct in failing to provide, “[sufficient] notice to management regarding [the Grievor’s] attendance at the Grievance Settlement Board (GSB) meeting scheduled on January 18, 2023; [and the Grievor’s] inability to attend [his] scheduled shift on January 17, 2023; [resulting in] undue scheduling stress for management.” The letter of discipline, signed by Mr. Williams, concluded with the following warning to the Grievor (which under the collective agreement remains part of the Grievor’s disciplinary record for three years from date of issue):

In the future, it is my expectation that you will demonstrate immediate and sustained improvement in your conduct as a Water and Wastewater Technician by following management’s guidance and direction, including providing reasonable notice to management regarding planned absences, and notifying management as soon as you are aware of a planned absence. Further it is my expectation that you contact management immediately if you have any questions or require any clarification regarding this expectation. Please note that any further misconduct may result in further disciplinary action up to and including dismissal. A copy of this letter will be placed on your corporate employee file. Please be advised that you have the right to grieve this decision in accordance with the terms and conditions of your Collective Agreement.

The parties’ arguments

32Both parties made brief submissions in support of their respective positions that the Employer either did or did not have just cause to issue discipline, but if any discipline was appropriate, that a one-day suspension without pay was or was not disproportionately harsh for an employee who was permitted the time off with pay and had never been disciplined in his 35-years of service to the Employer.

33On behalf of the Employer, Ms. Lewis noted there was no express provision in the collective agreement obliging the Employer to grant time off with pay for an employee who was scheduled to attend an arbitration hearing when the employee was not otherwise scheduled to work, which was the situation in the present case. According to the Employer, the Grievor’s demand for time off with pay on the shift before the arbitration proceeding was really to compensate him for “prep time”. In such circumstances the Employer’s discretion was absolute under its right to manage its enterprise affirmed in article 2.1 (“Management Rights”) of the collective agreement except to act “reasonably” in accordance with its QEMS policy governing “planned absences”. By waiting to make his request for time off mere hours before the scheduled shift, when the Union and the Grievor knew or reasonably ought to have known the day of the arbitration hearing many months in advance, the Employer argued the Grievor acted contrary to the QEMS policy causing disruption to the Employer’s operation and requiring the Employer to incur an overtime obligation for the Grievor’s replacement as a result of the short notice. Compounding that complete disregard for the Employer’s operational needs, the Employer claimed the Grievor’s conduct during the fact-finding meeting demonstrated such unprofessionalism contrary to the “Respectful Workplace Policy” as to question the Grievor’s ability to work with management if left unaddressed; justifyhing a disciplinary response for which a one-day suspension was not disproportionate. In support of its representations the Employer also relied upon OPSEU (Benjamin) v. The Crown in Right of Ontario (Ministry of the Attorney General), 2023 CanLII 115148 (ON GSB), Brown, D.J.M., Beatty, D.M., & Beatty, A.J. Canadian Labour Arbitration, 5th ed. (Toronto: Thomson, Reuters), online, para. 7:17, “Notification of Absence”, and OPSEU (McGann) v. The Crown in Right of Ontario (Ministry of the Attorney General, 2023 CanLII 72197 (ON GSB).

34Ms. Khan, the Union’s representative, disputed any charge of “unprofessionalism” or “unreasonable” conduct by the Grievor giving rise to any disciplinary response by the Employer. Rather, the facts supported the conclusion that the Employer was or ought to have been aware of the Grievor’s participation in the group grievance many months in advance (i.e. at least from the GSB’s notice to both parties six months before the hearing), according to the Union. Also, the evidence was conclusive that the Grievor didn’t know he would be attending as a Union representative at the group grievance until January 12, 2023, and even then, he reasonably believed the arrangements for his attendance at the arbitration hearing would be made at the level of the Employer’s Human Resources personnel in consultation with their Union counterpart, which was the procedure the Grievor had experienced in the past when he was called upon to attend an arbitration hearing. The evidence also supported the conclusion that the Grievor contacted the ORO and his manager immediately upon being advised that he was to make the arrangements directly with his supervision for time off with pay. To suggest that the collective agreement did not require the Grievor’s release from his January 17 nightshift with pay was also inconsistent with the past practice of the parties, according to the Union. In the Union’s submission, it was unreasonable to expect the Grievor to work a full 12-hour shift from 7 p.m. January 17 to 7 a.m. January 18, and then to be fit to attend for potentially up to eight hours at an arbitration before the GSB beginning at 10 a.m. on January 18 (i.e. only three hours after the completion of a 12-hour nighttime shift). The Grievor’s strong reaction to being summoned to a fact-finding meeting after the Employer had already granted him the time off with pay, which while regrettable was entirely predictable, was of the Employer’s own making. Consequently, the Union urged me to conclude there was no justification for any discipline to the Grievor, with the result that the grievance should be allowed with compensation for one day lost pay returned to the Grievor. The Union also relied upon the following authorities in support: Re Saskatchewan Health Authority (RQHR) and Canadian Union of Public Employees (XXX XXX), unreported decision of Arbitrator Daniel Ish dated January 3, 2019 (Sask. Arb.), Brown, D.J.M., Beatty, D.M., & Beatty, A.J. Canadian Labour Arbitration, 5th ed. (Toronto: Thomson, Reuters), online, paras. 7:32, 7:41, “Grounds for Discipline, Insubordination – Refusal to Follow Instructions”, and Re Retail, Wholesale and Department Store Union and Sherwood Co-operative Association Limited (Concerning the termination of WI), unreported decision chaired by Arbitrator Rodger W. Linka dated September 23, 2023 (Sask. Arb.).

35In brief reply, the Employer pointed out that even if the Grievor was tired after his 12-hour nighttime shift from 7 p.m. January 17 to 7 a.m. January 18, before the GSB hearing scheduled for 10 a.m. immediately after he had completed his shift, there was no contractual obligation to provide him with that night shift off with pay and, since the Ontario Crown is expressly exempted from the operation of the hours of work provisions of the Employment Standards Act, 2000, S.O 2000, c. 41, as amended, no legislative requirement to ensure that the Grievor received any amount of time off or rest in advance of the beginning of the arbitration hearing.

Analysis and conclusions

36Having assessed the parties’ comprehensive arguments in the context of my factual findings in this case, I begin with the observation that articles 22.5.1 and 22.5.2 of the collective agreement entitle a grievor or complainant leave of absence with no loss of pay and with no loss of credits, to attend grievance proceedings at the GSB. And article 22.11.1 similarly entitles up to three employees who have signed on as grievors in a group grievance to be present at the arbitration hearing(s) without loss of pay unless otherwise mutually agreed by the parties.

37However, the contractual language granting time off with pay is limited to circumstances where the grieving employee is “required to be in attendance” (in accordance with article 22.5.1) or to “attend such meetings” of the GSB (under article 22.5.2) which in the case of a group grievance, allows up to three signatories of the group grievance “time off with no loss of pay and with no loss of credits to attend such meeting” (emphasis added). Importantly, this contractual language does not expressly obligate the Employer to grant time off with pay to a grievor required to attend before the GSB for any day other than the day of the actual arbitration proceeding; and then only if that day is otherwise a scheduled workday for the grievor. A grievor who is not scheduled to work when the GSB hears his or her grievance (whether as an individual or as part of a group), has no contractual right to demand time off with pay for the shift immediately preceding the hearing.

38Applied in the circumstances of the present case, I consequently conclude the Grievor was mistaken in his claim that he was entitled to be relieved of his 12-hour shift from 7 p.m. January 17 to 7 a.m. January 18, with pay, which was prior to the commencement of the hearing before the GSB.

39Nevertheless, the Grievor like any other OCWA employee working at the South Peel Drinking Water System (and likely at the other water treatment and transmission facilities throughout the province), had the right to request a leave of absence, with or without pay, under relevant provisions of the Employer’s QEMS policy governing “Personnel Coverage”, reproduced above. While the Employer has a broad authority under article 2.1 of the collective agreement to “manage the business and direct the workforce”, which encompasses the Employer’s discretion to schedule employees and to permit employees time off work, with or without pay, in exercising its discretion there is an implied requirement that the Employer will act “reasonably”: See my discussion in OPSEU (Franklin) v. The Crown in Right of Ontario (Ministry of Children, Community and Social Services), 2023 CanLII 37584 (ON GSB) at para. 20, which is assessed from an objective as opposed to subjective perspective.

40In the present case, the Employer has promulgated a clear QEMS policy that the evidence shows to have been known by the Union and the Grievor. That policy distinguishes between “planned” and “unplanned” absences, and requires the employee seeking time off for a planned absence (in section 5.3.4) to provide notice “at least four (4) weeks in advance to provide sufficient time to arrange shift coverage [and failing such advance notice] is expected to provide reasoning to management behind the short request”. Section 5.3.5 of the policy also makes clear that, “Planned absence requests shall not be unreasonably denied by the Manager [and that the] operational needs are given first consideration when approving/denying the request”.

41It is clear neither the Grievor or Union followed the QEMS policy in requesting time off with pay for the Grievor’s shift immediately prior to the hearing of the group grievance at the GSB scheduled for January 18, 2023, at a time the Grievor was not otherwise required to work. Instead, the Grievor applied for time off with pay less than one day prior to the January 17 shift, which in my opinion was unreasonable. Both the Union and the Grievor knew, or ought to have reasonably known, that the arbitration hearing of the group grievance was scheduled many months in advance of the January 18 hearing date. Also, the evidence does not show that the Grievor’s attendance at the arbitration hearing was essential to the Union’s presentation of the case, particularly where there were at least three other grievors who had signed the group grievance but did not request the same time off. In balancing the needs of the Grievor (to the time off) and the Employer’s need to properly manage its operations, particularly where the QEMS policy states that the “operational needs are given first consideration when approving/denying the request” for time off, it is my opinion that the Employer would have been entitled to deny the Grievor’s request for the time off (with or without compensation) on the facts presented by the parties.

42The Employer’s “remedy” for the short notice provided by the Grievor for time off work on the shift immediately before his attendance at the GSB hearing considering his group grievance, was to deny the Grievor’s (and/or the Union’s) request. In that event the Union may have filed a grievance to challenge the Employer’s decision (obviously after the fact) and to seek an appropriate declaration from an arbitrator that the Employer had either violated the collective agreement and/or acted contrary to its own QEMS policy on the matter. However, on the facts before me I would have denied that grievance where, as I have found, there is no contractual obligation to provide the Grievor with the time off work with or without pay in the circumstances, and the Grievor’s conduct in waiting until mere hours before his scheduled shift rendered it entirely reasonable for the Employer to deny the request. (In the unlikely event the Grievor refused to report to work the January 17 nightshift anyway, that would trigger an independent right to discipline the Grievor, which did not occur in this case.)

43However, once Mr. Williams, on behalf of the Employer, decided to exercise the Employer’s discretion to grant the Grievor’s request to be absent with pay from the scheduled January 17 nightshift anyway, the situation changed to the consideration of the following question: Having exercised its discretion to grant the Grievor’s request for time off with pay, can the Employer then discipline the Grievor for failing to give sufficient time where it is claimed that the Grievor’s conduct “caused undue scheduling stress to management”?

44In my opinion, the Employer could not.

45The arbitration awards filed by the parties are of limited assistance because they occur under vastly distinguishable factual circumstances involving different contractual language and/or policies than those in the case before me. At most, the general statement of the arbitral jurisprudence in the references provided by the authors of Canadian Labour Arbitration, supra, confirm at para. 7:17 (“Notification of Absence”) that “the obligation of regular attendance also means that employees who expect to be absent from work have a responsibility to notify their employers of their situations [and that] employees who do not do so may be disciplined, lose their seniority rights, or be deemed to have quit, abandoned or terminated their employment”. Those authors go on to warn at para 7:17 that:

A failure to notify is regarded as antithetical to an employer’s legitimate interest in being able to plan and organize its work, and to deploy its workforce as effectively as possible. A duty to notify has been recognized to exist apart from any specific obligation set out in the agreement. Indeed, even if there is a justifiable reason for the employee’s absence, a failure to notify the employer may warrant the imposition of disciplinary or administrative sanctions.

46But before an employer can legitimately discipline an employee for failing to notify or provide reasonable advance notice of the need to be absent from work, the burden is on the Employer to show that the employee engaged in culpable misconduct. On the facts of the present case, I must conclude the Employer has failed to discharge its onus in that regard.

47The evidence on this, points to a lack of due diligence by the Union’s Grievance Officer assigned by the Union’s Head Office to the group grievance, not to the Grievor. In fact, the Grievor’s e-mail to the Grievance Office dated January 12, 2023 demonstrates the Grievor’s anger at the late notice provided by the Grievance Officer to the Grievor in establishing the Grievor’s participation at the GSB hearing, which he felt might compromise the Union’s preparation of its case for arbitration. The Grievor’s claim that the arrangements for his time off to attend at GSB hearings in the past was always made by the Union (in direct dialogue with its Human Resources counterpart) is undisputed. And hence, I conclude the Grievor’s expectation that the Grievance Officer would make those arrangements directly with the Employer was reasonable. It was only after the Grievance Officer told the Grievor that he would be responsible for notifying his supervisor of his need (or request) for time off with pay, that the Grievor acted immediately to notify his ORO and Mr. Williams of his need to be off work for the January 17 nightshift, prior to the arbitration hearing scheduled for January 18. In these unfortunate factual circumstances, I conclude the Grievor had no intention of causing Mr. Williams any scheduling stress, nor to affect Mr. Williams’ reasonable ability to find alternate coverage for the Grievor’s January 17 nightshift (without premium payment to the replacement employee).

48To put it bluntly, the problem here was with the negligent conduct of the Union’s Grievance Officer in not attending to the issue of the proper representation at the group grievance in a timely manner, for which the Union, as opposed to the Grievor personally, was responsible. As such, I conclude it was unfair to hold the Grievor personally responsible for the short notice of absence provided to the Employer, which occurred as the result of the Grievance Officer’s less than sufficient attention to the matter.

49It should not have been unexpected that, after the Employer decided to exercise its discretion to grant the Grievor’s requested time off with pay, notwithstanding it was not obliged to do so under the collective agreement, and where as I have found it would not have been unreasonable to deny the Grievor’s request under the Employer’s QEMS policy governing “Personnel Coverage”, the Grievor would have reacted negatively to being personally accused of wrongdoing at the subsequent fact-finding meeting convened by the Employer. While the Grievor clearly expressed hostility to being charged with violating his employment obligations in a way that could be interpreted as unprofessional, given the circumstances and the Grievor’s subsequent acknowledgement of his own misconduct in the way he expressed his frustration to the Employer, along with the genuine expression of regret for his reaction in his testimony before me, I cannot conclude that his reaction was to such a negative degree to expose him to liability under the Employer’s Respectful Workplace Policy to justify any discipline for his conduct during the fact-finding process.

Disposition

50Consequently, the Union’s grievance must be allowed.

51For the foregoing reasons, I conclude the discipline imposed on the Grievor was unjust, and therefore order that the disciplinary letter dated February 8, 2023 be removed from his employment record and that he be made whole with compensation for all monies he lost as a result of the imposition of a one-day suspension without pay, which I remain seized to determine in the event of any dispute in calculating that sum.

52Having done so, however, the Union should not interpret my decision as any form of vindication for the improper conduct of the Union through its Grievance Officer. The entire grievance procedure and the parties’ attendance before the GSB to have their arbitrations dealt with in an effective and efficient manner, relies upon the good faith and reasonable conduct of both the Employer and the Union.

53Regrettably, on the facts of the present case, I have found the Union fell short of its obligations in this regard, which in the absence of a specific grievance filed by the Employer on the matter, I am without jurisdiction to redress. It is clear, however, that the Employer’s practical remedy would have been to deny the Grievor’s time off request in the circumstances, which may not have been in the parties’ long-term interests. I therefore urge the Union and Employer to establish lines of communication at the level of Human Resources management and its Union counterpart to avoid such unfortunate events in the future, which otherwise work to undermine the essential cooperative relationship so necessary in the administration of the collective agreement.