HomeMy WebLinkAbout1986-0164.Cameron et al.88-01-21Between:
0164/86, 0333/86, 0334/86,
0335/86, 0336/86, 0343/86
IN THE NATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
OPSEU (Cameron et al)
Grievers
and
The Crown in Right of Ontario
(Ministry of Revenue)
Employer
Before: E.K. Slone Vice-Chairperson
L. Robbios Member
L.R. Turtle Member
For the Grievors: E. Shilton-Lennon
Counsel
Cavalluzzo, Hayes & Lennon
Barristers and Solicitors
For the Employer: D. Daniels
Staff Relations Officer
Personnel Services Branch
Ministry of Revenue
Hearing: October 1, 1987
DECISION
There are twenty-three (239. separate Grievors in this
matter. They are all Property Assessment Officers, fourteen
of whom work out of the Whitby Office, five of whom work out
of the Windsor ~Office and four of whom work out of the St.
Catharines-Office. Most of the facts are contained in an
agreed Statement of Facts, which was supplemented w'ith
several short witnesses.
The Grievors' normal work week is 36-l/4 hours.
Property Assessment Officers are all covered.by Schedule "A"
of the Collective Agreement, which deals with the averaging
of hours of work. This Schedule is designed to accommodate
those employees whose jobs require that they work more than.
the usual number of hours per week at regularly recu.rring
times of the y~ear, or where the number of hours per week
required will fluctuate. The employer is required to
maintain a record of the running total of hours worked by
each employee covered by this Schedule. If at the end of the
year the employee has worked more than the targeted number of
hours, there are provisions in the Schedule that provide for
either overtime payment, or under certain circumstances the
employee will be given lieu time. ,
The gist of this grievance concerns the rights of the
employer to have resort to the following provision in
.Schedule "A'::
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EXCESSIVE BUILD-UP OF HOURS WORKED:
When an employee's build-up of hours worked is becoming
excessive, he: - may be required to take time off on an hour
for hour basis, in order to bring his hours accumulation into
line with the hours requirement for the averaging period, and
- will be given reasonable notice, where circumstances
permit, of any such time off.
The'Grievors in this case all work on a fiscal year
beginning April 1 and ending March 31. The grievance
concerns management's actions during the 1985 - 1986 fiscal
year.
By February of 1986, each of the Grievors had
accumulated some excess hours. Some of the Grievors had
accumulated as few as four hours. Most had accumulated a
somewhat larger number, the largest number of which belonged
to Gary Poole, who.had accumulated 72.72 hours. While the
facts differ slightly between the three different regional
offices, it is a fact that in each case it was not until late
February that the Grievorscand their co-workers who chose not
to grieve) were orally advised by their supervisors that it
would be necessary to take sufficient time off on an hour for
hour basis prior to the end of the fiscal year, in order to
reduce the excessive build-up of hours accumulated by each of
them. This process is colloquially referred to as "zeroing
out I' . In each case, the oral notice was followed up by a
written notice from the employer specifying the particular
time that the employee would have to take off. Those working
in Whitby received their written notice on March 5 or March
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6; those in St. .Catharines received their written notice on
March 10, while those in Windsor r~eceived their written
notice on either March 14 or; in one case, March 24.
It j.s fair to say that the employer attempted to
accommodate the preferences of the employees, to the extent
possible, in scheduling the time off. -Of course, by late
February or early ~Marchthere was not a lot of 'flexibility
available.
The Grievor9 allege two things:
1. It is argued that the employer ought not to have
ordered zeroing out at all, because a practice had developed
during prior years of not requiring employees t.0 zero out.
2. Even if the employer had the right to order zeroing
out, they failed to give reasonable notice of such time off.
Dealing with the first argument, it was clear from the
evidence that zeroing out had not been enforced vigorously
over previous years. In fact, in a number of years the
employees had been told before December that they would have
to zero out by the end of the fiscal year, and were thus
given an opportunity to take some of the time during the
Christmas holidays. Nevertheless, there was no enforced
zeroing out and employees with time still accumulated at the
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end of the fiscal year were compensated either by overtime
payments or lieu time. We find it difficult to accede to the
argument that any clear practice had grown up that precluded
the employer from asserting its rights under the "excessive
build up o-f hours worked" provision. If the employer has
been lax in its use of this provision, it is not precluded
from utilizing it when it becomes convenient to do so. This
right is by its own terms permissive, and in our view the
employees did not gain any right to forbearance merely
because the employer chose not to do that which it was
permitted to do for a number of years. To, found an estoppel,
something more is required than mere laxity. -There must be
some clear representation by the employer that it is not
availing itself of this remedy, or there must be some
detrimental reliance on the part of the employees who were
led reasonably to believe that they would not be required to
zero out. Neither of these elements has been established in .
this case.
It is not as if the employees had never been told to
zero out before. Their main complaint was that, in'this
year, they were told much later and this time the employer \
was serious about it.
As for the matter of reasonable notice, the Grievor*'
case is much stronger. It was an agreed fact that in the
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year in question, the employer implemented a. blanket policy
of not paying for excess hours for all employees (except
those doing a particular type of work in connection with the
implementation of market value assessments). This Ministry-
wide policy was taken in November of 1985, and was apparently
communicated at that time to the supervisors. It seems the
supervisors did not take this decision at face.value, and
rather than risk losi,ng face with their employees chose not
to communicate the decision to them atthat time. We heard
from Wallace Parnell, the Regional Assessment Commissioner at
the Whitby Office, who testified that in previous years he
had been embarrassed 'when he had told his assessors that they
had to zero out, yet the Ministry had not sought to enforce
that policy with any toughness. Rather than risk being seen
as the boy who cried "wolf", he chose to keep his knowledge
of this Ministry policy to himself until February of 1986.
We assume that similar motives prevailed in the other
offices. In the result, the Grievors were given fairly short
notice to take off periods of time that in some cases were
significant, whereas the supervisors had it withintheir
power to have given as much as ,four months of notice.
The~benefits of reasonable notice-to the employee are
~obvious. There is much one can do with time off,
particularly during the dull months of February or March, SO
long as one has sufficient advance notice. It stands to
i
I
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reason that the amount of notice that is reasonable will
depend to some extent on the amount of time off one has to
schedule.
Counsel for the Grievors urged us to conclude that the
amount of notice was unreasonable in the case of all the
Grievor*. We certainly agree that the employer made its own
life more difficult by withholding notice of the change in
policy for as long as it did, but we are not prepared to find
that the amount of notice became unreasonable per se.
Counsel for the employer conceded in the agreed
Statement of Facts that the notice given to Gary Poole was
unreasonable. Mr.. Poole's'excess hours amounted to more than
two weeks of time, which he was obliged to attempt to
schedule within the .period of one short month. However, the
employer's position is that notwithstanding the
unreasonableness in the case of Poole, no remedy should be
granted.
Having conceded to us that the notice given to Gary
Poole was unreasonable, the employer can only hope to draw
the line somewhere between the 72.72 hours accumulated by
Gary Poole and the slightly less but still significant
numbers of hours accumulated by others. If 72.72 hours gave
rise to unreasonable notice in the case of Poole, why was it
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reasonable in the case of.,Stewart Anderson who had 56.75
hours, or Orrett Chen-Yin who had 52.5 hours? We are
regrettably forced into a determination on the facts of how
mu'ch notice was reasonable, having regard to the number of
hours accumulated. While we clearly would have agreed that
the 72.72 hours accumulated by Mr. Poole led to unreasonable
notice, even had it not been concehed, we equally conclude
that the notice given to each of Brian Dignem and Gordon
Williamson was reasonable, given that each had~accumulated
only 4 hours. We so, conclude because as a matter of common
sense, there is simply not that much one can do with a half
day or even a full day that would require more than a month's
notice. It is not feasible to plan a trip to Florida for one
day. Since the options are limited, the amount of notice
that is reasonable to that employee is naturally 1es.s. Thus,
while it is not too difficult to assess the reasonableness at
the extremes of the spectrum, we are left with the unenviable
task of deciding where to draw the line in between those
extremes.
As already mentioned, employees are entitled to
reasonable notice in order.that the time may be utilized to
maximum effect. Counsel for the Grievors would have had us
go farther and say that the employees had something of 'a
vested entitlement to overtime, which was not to be taken
from them except upon reasonable notice. However, the scheme
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of the Schedule "A" is such that the time does not.go into
the employees' overtime bank until or unless it is not used
up by the end of the year.
Therefore the question which we must answer is as
follo"s:
Given that all of the employees received oral
notice in or about the end of February, for
which employees "as that notice unreasonable
given the number of hours accumulated which had
to be taken within the space of one month?
It is our opinion that~ any number of hours approaching
one full week is a substantial block of time that,
supplemented if necessary with a lieu day or a vac,ation.day,
can be.used by an employee to great effect but only upon
receiving at least two months of notice. Had the supervisors
given the notice in November, it would have been reasonable
for all concerned.
Under the unique circumstances of these facts, and
while acknowledging that the line we draw is somewhat
arbitrary, we hold that those employees with less.than four
full days of accumulated time did receive reasonable notice
of the need to zero out. Conversely, those employees with
four days (29.0 hours) or rare of accumulated time, did not
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receive. reasonable notice and accordingly~their rights under
the Collective Agreement were violated by the employer, The
employees with more than 29.0 hours are the following:
Stewart Anderson (56.75 hours).,
Orrett Chen-Yin (52.5 hours),
Gordon Thow (49.0 hours),
Wayne Ashton (35.25 hours),
Andrew Buwalda (33.25 hours),
Gary Poole (72.72 hours),
R. McLean (36.25'hours),
Daniel Docherty (30.23 hours),
'Wayne Johnson (35.25 hours).
REMEDY
Having found thatthe rights of some of the,Grievors
were violated, it remains to determine the appropriate
remedy.. Counsel for the'employer urged us to restrict
ourselves to a declaration. His position was that we should
not award what amounts to damages in the absence of any
evidence that the employees suffered any damages. This
argument is not without merit, but restricting the successful
Grievors to a.declaration would be to provide cold comfort
indeed. It would cast an unfair onus on any individual
Grievor to establish that the employer's unlawful action had
actually inconvenienced or damaged him. It could amount to a
virtual licence for the employer to disregard the reasonable
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notice requirement.
We are assisted in our determination of~the
appropriate remedy by the decision of this Board in
0.P.S.E.U: (Syring et al) v. The Crown in Right of Ontario
(Ministry of Environment) 180-185/85. The facts in that case
were in many respects similar to the present case. In that
case, the employer had over a number of years always
considered an accumulation of 36-l/4 hours to be acceptable,
while any amount over and above 36-l/4 hours was considered
excessive. Vice-Chairman Knopf goes on at page 5 of the
Decision to say the following:
"However, at the end of 1984, the Employer
decided to change the 'practice and adopt a new
policy designed at targeting a zero
accumulation of built up hours. The "zero'
accumulation' became mandatory and a series of
memos were'sent to the individual- grievors
advis~ing them of th.e requirement to reduce the
number of built up hours to zero (.Exhibits 5 to
10). Through these memos, the grievors were
advised that they must reduce the accumulation
to zero by March 31, 1985. Some of the
employees were able to do this. Some were not.
All the grievors reduced their accumulated
hours to some extent, but this was done under protest. The remedy that the grievors request
is that the number of hours that they were
forced to remain off work be reinstated and
that they be compensated at an applicable rate
-in lieu of taking the time off."
and also at page 8 and 9.:
"Therefore, we must conclude that the Employer
has the right to give the employees notice that
it will no longer consider an accumulation of thirty-six and one-quarter hours of overtime as
acceptable. The Employer has the right to,
within reason; designate what would be
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excessive. In the particular circumstances at
hand, the Employer had the right to advise the
employees that there would be a change in the
practice from what they had enjoyed .from 1975
to 1984. However, on the facts of this case,
the amount of notice that was given to the
employees was not adequate. Therefore, the
grievance mustsucceed to the extent that the
grievers should be restored the number of hours
that they were involuntarily made to remain off
work and that they be paid the applicable rate in lieu of the time off for that period."
We take it as a matter of settled jurisprudence that
the successful Grievors in this case are entitled to have
restored to them the time that they were forced to zero out
in March of 1986. The most fair result in this case is to
direct that the hours be placed in each Grievor's overtime
bank as at March 31, 1988, together with whatever time may be
in that bank from the current year, such overtime bank to be
disposed of in accordance with the applicable provisions of
Schedule "A". This way, the employee gets precisely what he
was entitled to had the employer recoynized in late February,
1986 that it was no longer possible to give reasonable notice
to reduce the excessive build up of hours. Bad the employer
recoynized the impossibility, the employees would have
finished out the year with the hours credited to overtime,
and would have been entitl~ed to either payment of overtime or
the opportunity to take lieu time.
RESULT
In the result the grievances of Anderson, Chen-Yin,
Thow, Ashton, Buwalda, Poole, McLean, Docherty and Johnson
as discussed
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are allowed, and the remedy provided to them is
earlier. The grievances of all of the other Gr
dismissed.
ievors are
Weare grateful to the able presentation of both
counsel. We would be remiss in not mentioning that numerous
authorities were cited to us, which we have not ignored but
nonetheless have not found it necessary to refer to in this
award. Dated at Toronto, Ontario this 21st day of January,
1988.
C.-Ku--
.
E.K. SLONE - VICE-CHAIRMAN
AT flA ~(Addendum L. ROBBINS - .lember attached)
In
, L-T-
- Member
5 ADDENDUM
I have reviewed the Award of the Chairman in this matter. The Award
draws a line at 29.0 hours so that the grievances are allowed for all
employees who had that amount of overtime &cumulated, while those with
less time have had their grievances dismissed.
Clearly this is a difficult and somewhat arbitrary task for a Board
of Arbitration to undertake in a case such as this. In particular, those
employees suCh as Rose Mary VanDreamal (who had 27.25 hours) and John
Dragsta (who had 27.75 hours), both of whom find themselves on the wrong
side of the dividing line, might find this result rather perplexing.
On the one hand, there certainly is some rationale to the view
that the more time that was at stake, the greater the amount of notice
should have been. This is certainly one.factor in determining reasonable
notice, although in each case, one will have to look at all the surrounding
factors to determine what is reasonable.
The Chairman correctly sets out what the benefit is to the employee
of receiving ample notice of such time off.
In the case at hand, had the employees known what the Employer’s
intentions were with respect to “zeroing out” much earlier in the year,
they would have had the opportunity to plan for the use of such time in
a more flexible way. Given that fact, the Employer should have at the very
least passed on the information which it had in November to all of the
bargaining unit members involved, rather than effectively sit on it.
Subject to the above comments, and although I would have preferred
to see a lower cut-off line, I would concur with the general thrust of
the Award.
All of which is respectfully submitted.
.
Larry’Robbins