October 17, 2019

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Labour board sides with transit drivers on family leave grievances

While the City of Winnipeg and its transit union clash in contract negotiations, a labour board ruling has ordered five bus drivers be paid for family leave days they were originally denied.

The drivers had been marked down as “unexcused absences” for the days in question — which can lead to other disciplinary measures — although they called in with a reason for not attending work that day.

Adjudicator Kristin L. Gibson ordered five drivers be paid for their 2018 family leave days, three of which related to child care.

“While I agree with the view that family responsibility leave should not be used as a substitute for finding reliable day-to-day child care, I do not agree that it should only be available where a related emergency has arisen,” Gibson wrote in the Manitoba Labour Board decision issued June 21.

While the City of Winnipeg and its transit union clash in contract negotiations, a labour board ruling has ordered five bus drivers be paid for family leave days they were originally denied.

The drivers had been marked down as "unexcused absences" for the days in question — which can lead to other disciplinary measures — although they called in with a reason for not attending work that day.

Adjudicator Kristin L. Gibson ordered five drivers be paid for their 2018 family leave days, three of which related to child care.

"While I agree with the view that family responsibility leave should not be used as a substitute for finding reliable day-to-day child care, I do not agree that it should only be available where a related emergency has arisen," Gibson wrote in the Manitoba Labour Board decision issued June 21.

When drivers call in, they have to answer a questionnaire about why their absence should count as family leave — including if the person they need to attend to is a direct family member, if that person is under 12, and whether there's no one else to take care of the issue.

THE QUESTIONNAIRE IN QUESTION:

Winnipeg Transit's family leave request questions, revised Dec. 5, 2016:

1. What type of leave are you requesting?

• If family responsibilities leave and they have not used their 3 occurrences yet, then proceed to the next question.

• If they have used their 3 occurrences, the leave will not be granted.

1. What type of leave are you requesting?

• If family responsibilities leave and they have not used their 3 occurrences yet, then proceed to the next question.

• If they have used their 3 occurrences, the leave will not be granted.

2. Which family member?

3. Does the family member reside with you?

4. What are the specific circumstances that make it necessary that you not attend work today?

• If for a medical appointment, then when ask "when is the appointment?" and "when was it arranged?" and proceed to question 5. (If the request is being made last minute and the appointment was known about well in advance, the absence may be considered a UA).

• If to attend a graduation or similar ceremony, the leave will not be granted.

• If to provide child care, the leave will not be granted. (An exception may be made if there is a related emergency. For example, the child care facility had a fire and had to close).

• If the leave is to care for a sick family member, then ask "how old are they?"

If the child is under 12 then ask, "is anyone else available to care for the child?" If yes, the leave will not be granted.

The law states that if a child is 12 or over, they are able to stay by themselves without parental supervisor. However the call taker will have to determine if this is reasonable given the circumstances.

• If the requested leave is to care for a spouse or other adult, then ask "what is the nature of the illness?" and "why is it necessary for them to stay home to care for them?" The call taker will need to make a determination of whether this is reasonable or not.

• If for a household emergency, ask "why it is required?"

o If the need is immediate and affects the safety of family members, then the leave will be granted (examples include a flooded basement, a furnace that does not work in cold temperatures, etc.

o If the need is not immediate, the leave will not be granted.

5. Are you able to work a partial shift?

— source: Manitoba Labour Board

Amalgamated Transit Union Local 1505 president Aleem Chaudhary told the adjudicator the union received a number of complaints after the questionnaire was implemented in 2016, prompting the grievance.

Some of the questions are "weird and invasive," said University of Winnipeg business Prof. Maureen Kilgour.

"The arbitrator was able to kind of criticize some of the questioning, but gave the city a pass with some of the questions about — 'What kind of family member was this?’" she said.

Kilgour noted provincial law, which gives all Manitobans three (unpaid) family days per year, doesn’t require such scrutiny — but gives employers the option. Bus drivers get two paid family days per year.

Chief timekeeper Blaine Early told the adjudicator 2,043 family leave days were granted in 2016 to approximately 1,200 Winnipeg Transit operators. After the questionnaire was implemented, Early said the number went down to 1,600 days a year.

The three drivers who called in with child care issues were all fathers: one who had to pick up a child when his wife’s medical appointment ran late; another whose partner was sick and other family members were unavailable to care for the child; and a third who had to pick up his child from daycare early due to bad weather.

"This idea that you need to have your child care facility burn down and be reported in the papers to be able to get your leave," Kilgour said, referencing an example from the questionnaire of when child care is an acceptable reason for a family day.

"There could be biases, If I’m a male bus driver… ‘Well, don’t you have someone else to take care of the kid?'… The nature of the questions leave a lot of discretion to the person on the other end of the line," she said.

"All employers really need to address this issue of family responsibility leave, and probably clarify, offer more, and make it less onerous to get."

Two of the seven drivers who filed grievances will not be paid.

According to the City of Winnipeg, ATU leadership rejected its most recent contract offer July 12 during conciliation, but the union committed to providing an offer to settle Thursday.

The contract with ATU, which represents Transit drivers and mechanics, expired in January.

tvanderhart@freepress.mb.ca

Twitter: @tessavanderhart

Tessa Vanderhart

Tessa Vanderhart
Reporter

Tessa Vanderhart is interested in everything, but especially local news, health policy and statistics.

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History

Updated on Tuesday, July 16, 2019 at 7:23 PM CDT: Corrects headline

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