Loading...
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':: - 2 - 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 - 3 - 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 - 4 - 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 - 5 - 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 I -. 6 - 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 i . - 7 - 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 .~ -'8 - 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 . - 9 - 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 - 10 - 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 - 11 - 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 _ -12 - 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