Questionnaire takes away ‘any discretion’: arbitrator
After seven workers at Winnipeg Transit were denied paid family responsibility leave, the union filed a policy grievance alleging the employer treated them unfairly.
During various negotiations for collective agreements, the City of Winnipeg and the Amalgamated Transit Union (ATU), Local 1505, agreed to language that would satisfy new rules of the Employment Standards Code.
The agreement, which ran from Jan. 18, 2015 to Jan. 12, 2019, called for employees to receive two paid days and one unpaid day per year for family responsibility leave, which expanded the definition away from a strictly sick-leave system.
However, at the end of 2016, the city instructed timekeepers and dispatch supervisors (who were responsible for approving leave) to ask a series of questions to properly categorize acceptable reasons for a leave.
The employer developed a list but the ATU grieved this and said it was inappropriate and unfair to workers.
The document, dated Dec 5, 2016, outlined how timekeepers and supervisors should handle incoming requests.
“If the reason for the leave does not meet requirements, or the employee refuses to answer the questions with enough detail for a determination to be made, the leave will not be granted. They will be advised that not reporting for work will result in an unexcused absence,” said the document.
The union said that the questionnaire asked too many personal questions in an effort to deny leave. In one case, an employee was not allowed to travel with her husband on Dec. 24 to spend time with his mother, who had been diagnosed with advanced cancer. The request “did not meet the criteria” for family responsibility leave.
Chief timekeeper Blaine Early testified that due to an overly complex scheduling system, the questionnaire was necessary to manage absences and staffing levels.
The period of 2006 to 2008 saw employees increasing usage of family responsibility leave, said Early, and that number dropped after the 2016 document.
Arbitrator Kristin Gibson upheld the grievances in part and ordered the city to pay five workers for unpaid leave days previously taken in 2018.
As well, some guidance was provided on how the employer should more liberally handle future leave requests.
“[The questionnaire] takes away any discretion on the topic of ‘graduations or similar ceremonies.’ To that extent, I think it goes too far, in that the discretion that ought to be exercised by the timekeeper, dispatch supervisor or operations supervisor appears to be completely fettered. I think there may be circumstances, although they would be quite narrow, where attending a graduation or a similar ceremony of a family member might qualify. If, for example, the employee was providing necessary physical or emotional support for a disabled family member who was graduating, in my mind, that could be a family responsibility. Conversely, most graduations, while a time of celebration that an employee would want to attend, would not likely rise to the level of what would be reasonably regarded as a familial duty, absent compelling additional circumstances.”
As well, management should better understand family situations, said Gibson, to properly manage leaves.
“When exercising discretion, the employer designate needs to keep in mind what a reasonable person of the same cultural background would consider a familial duty. It is possible that where questions of cultural background are being considered — in this and other situations where leave is requested — the operations supervisor should be involved as that person may have a better understanding of the operator and their background in this regard.”
Reference: City of Winnipeg and Amalgamated Transit Union, Local 1505. Kristin Gibson — arbitrator. John Jacobs for the employer. Garth Smorang for the employee. June 21, 2019. 2019 CarswellMan 531