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HomeMy WebLinkAbout1986-0981.Graham.88-01-25416/598- U688 0981/86 THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Mike Graham) Grievor Before : For the Grievor: For the Employer: He a r i ng : and The Crown in Right of Ontario (Ministry of Transportation) E.J. Ratushny Vice Chairman I.J. Thomson Member W.A. Lobraico Member C.M. Dassios Counsel Cowling and Henderson Barristers and Solicitors D.I. Wakely Counsel Winkler, Filion and Wakely Barristers and November 18, 1987 Employer The Grievor claims overtime pay with respect to certain hours worked during the period from January of 1978 to December of 1983 inclusive. (In January of 1984, a new work schedule was established.) During this period, it was common for Mr. Graham to work in excess of eighty hours in some two-week periods and to receive credit for that excess during other two-week periods when the actual hours worked were less than eighty. In addition it is agreed by both the Grievor and the Ministry that sixteen hours of pay are still outstanding from the year 1983. The Ministry has agreed to pay these hours at the current normal rate of pay but Mr. Graham takes the position that these should be paid at the overtime rate. Essentially, the Grievor's contention is that the position in question is not a position for which the "averaging" of hours may occur. Therefore, it is contended that the six-year period in question must be examined with a view to determining whether any hours in excess of forty were worked in any particular week. Compensation should then be provided at the overtime rate (less the normal rate which already had been paid). The Ministry takes position that during the six year period in question, Mr. Graham might well have worked more than five consecutive days during a two-week period. However, that does not mean that he worked more than forty hours in the work week. For example, at the start of the week in question, the employee might have had two days off, then worked six in a row, had two days off and then worked four days. The sixth consecutive day would not qualify for overtime because it falls within the second week. The Ministry does concede that, from time to time, more than five days might be required to be worked during a work week and that overtime would be paid for the extra day(s). However, it is contended that the delay in filing grievance has created very real prejudice for the employer. records are inadequate to determine what days constituted the The the work week at any particular time over the six-year period. Therefore, it cannot be determined whether consecutive clays worked beyond five were worked during any particular work week and, if so, whether overtime for the extra days was actually paid or not. The of the work week is complicated by its relationship to the number of employees constituting the core compliment for the patrol work in which Mr. Graham was At present the core complement is twelve but in 1978 it was eighteen and varied widely and frequently over the in question. The core complement directly affects the schedule in effect at any particular time. The situation is further complicated by the presence of auxiliary employees from time to time The Grievor's position is the work week has been defined by the pay sheet periods. These are two-week periods commencing on a Saturday and ending on a Friday. It is contended that management cannot redefine the work week every time it wishes to change the work schedule. The Grievor seeks a declaration that overtime is due for any hours worked in excess of forty during any week (i.e. Saturday through Friday) during the six year period in question. Counsel for the Ministry cited the following decisions: Re Barnfield 67/76; Re Printing Specialties & Paper Products Union, Local 466 Canada Ltd. 21 L.A.C. 46; Re Bateman 2/77; Re Kerr 362/80; and Re Jones 96/80. In the Bateman decision, Vice-Chairman Prichard has specifically addressed the contention that the Ministry itself defined the work week as Saturday to Friday merely by establishing that as the pay period. He said: '.- ... we find no support for the argument that by setting a pay period the Ministry has implicitly defined and bound itself to a particular definition of the work week. Rather, we prefer the view that the pay period has purposes different from those of the work week and that in the result there may well be numerous situations in which the pay period and work week will diverge. (p.11) However, we are of the view that we are unable to address the merits of the Grievor's claim. Counsel for the Ministry argued: that article 27.2.1 of the Collective Argument is mandatory; that the eight year delay from the beginning of the period on which the grievance is based and the filing of the grievance is inordinate; and that the Ministry faces actual prejudice in responding to the grievance at this stage. As a result, the grievance must be rejected as being Counsel for the Grievor argued that, in effect, the sixteen hours of outstanding pay dating back to 1983 provide a temporal link to the time of the filing of the grievance in 1986, which permitted the entire period going back to 1978 to be considered. Moreover, it is contended that Mr. Graham acted promptly by grieving as soon as he realized that he had a potential claim. The circumstances in which this occurred arose out of a discussion related to another grievance in which he was involved. During that discussion he realized for the first time that the position which he held throughout the period in question fell under Schedule 4.7 which was not an "averaging" position unlike a position falling within Schedule A. At that point, he believed that he had a complaint and then reacted in a manner which complied with article 27.2.1, according to counsel. This article provides that: An employee who believes he has d complaint or a difference shall first discuss the complaint or difference with his supervisor within twenty (20) days of first becoming aware of the complaint or difference. -4- Counsel for the Ministry cited the following decisions in support of the proposition that S. 27.2.1 is mandatory in Re Smith 237/81; Re Quance 76/85; Re Martin 188/78; and Re Lariviere 73/76. That proposition was not disputed by for the Grievor. We simple cannot agree that the sixteen hours of pay which have been outstanding since 1983 provide some link which permits us to consider a six year period extending back to 1978. No authority was cited in support of this contention and we consider the connection to be too tenuous. Nor can we accept the proposition that section 27.2.1 only becomes operative when an employee subjectively "believes" that he has a complaint or difference. Again, no authority was cited to support this position. In our view, unless an element of objectivity is read into this provision it could not serve its purpose of providing some finality and avoiding grievances based upon situations which arose long in the past. Our situation does not involve circumstances where the employee was not aware of the facts upon which the grievance was based. He was aware, at all times, of the hours and days which he was working. Nor does it involve any misconduct or misrepresentation on the part of the employer . Rather, the employee became aware in 1986, for the first time, of the nature of the Schedule which applied to his position. We are of the view that lack of personal knowledge by an employee of a statutory provision, regulation or term of the collective agreement cannot form the basis for avoiding the application of a mandatory time limit . However, the situation is different with respect to the sixteen hours of pay which are outstanding. There is no question of timeliness with respect to these hours. The only dispute is whether they should be compensated at regular or overtime rates. The absence of records on the part of the employer with respect to matters which are no longer arbitrable are one matter but the absence of records with respect to remuneration which is acknowledged to be-owing may well be another. We did not receive submissions on this specific matter of overtime in relation to the sixteen outstanding hours. However, particularly in light of the small amount which is involved and the unlikelihood of there being any other significant claims falling within the same category, we hope that the parties will be able to reach an amicable settlement of this aspect of the grievance. In the result, the grievance is dismissed except to the extent of potential liability for overtime pay for the sixteen hours in question. We will remain seized of the matter in the event that the parties are unable to resolve this relatively minor issue. DATED at Ottawa this 25th day of January, 1988.