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HomeMy WebLinkAbout1986-1735.Cruz.88-05-25:735,'86 IN THE MATTER OF.AN ARBITRATION Under THE CROWN EblFLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OLBEU (Adolf0 Cruz) and Grievor The Crown in Right of Ontario (Ministry of Correctional Services) Employer Before: For the Grievor: For the Emalover: Hearing: P. Draper Vice-Chairman J. Solberg' Member D. C. Montrose Member J. Mosher counse 1 Gowling & Henderson Barristers and Solicitors 7 4. F. Benedict Manager Staff Relations Ministry of Correctional Services Jan. 19, 1988 - 2 - DECISION The Grievor, Adolf0 Cruz, a Correctional Officer 2 at the Toronto East Detention Centre, grieves that he has been wrongfully denied an Overtime Shift and requests payment for the shift at the applicable wage rate. Counsel to the Grievor agreed in the alternative that he is entitled to call back pay under Article 14 of the collective agreement. In our opinion the circumstances now described do. not create a call back situation. On December 22 and 23, 198G. the Grievor worked his scheduled shifts. December 24, 25 and 2G were his scheduled days off but he worked a 7.00 a.m. to 3.00 p.m. overtime shift on December 24. Before the end of that shift, he was approached by the Corpora3 on duty to work an overtime shift from 11.00 p.m. December 25 to 7.00 a.m. .December 26, which he agreed to do. Be spent most of Christmas Day sleeping because of the assignment. The Corporal telephoned him at about 6.30 p.m. to remind him to come in to work at 11.00 p.m. In the evening the Grievor attended a family gathering at his brother‘s home intending to leave for work at about 10.00 p.m. He wore his uniform and drank no alcholic beverages. At about 9.30 p.m. his daughter telephoned from his home to report that the Sergeant on duty had called to tell him that his shift had been cancelled. The Grievor telephoned the Sergean,t to ask for - 3 - an .ex.planat~ion~-and was told that a casual (i.e. contract) employee was available and would worked the shift. He later discovered that the employee concerned had also worked the 3.00 p.m. to 11.00 p.m. shift on Christmas Day; that is, he had worked a double shift. The/Grievor received a lieu day as provided by Article 19 (3) of the collective agreement because Christmas Day (a holiday under Article 48) was a scheduled day off for him and he did not work on that day. The Grievor concedes that he has had scheduled overtime shifts cancelled in the past for which he has not received payment. It is submitted for the Employer that the Board is without jurisdiction to hear the grievance because it does not arise under any provision of the collective agreement. Counsel to the Grievor submits that he accepted the duty to perform the scheduled overtime work and that the Employer had the corresponding duty to allow him to perform it. The Board has consistently ruled that its jurisdiction is founded in its constituent statute, the Crown ------ _E_mEl_or_e_e~~~~~~~~~~-~~r~~i Gnsc!c. See, for example, Holiday, 94/78. Pursaunt to Section 18 (2) we can hear and determine employee grievances concerning classification, appraisal, discipline, dismissal or suspension. Pursuant to Section 19 (1) we can hear and determine differences between the parties concerning the interpretation, application, administration or alleged contravention of the collective agreement. This grievance is brought under the latter section. r- - 4 - It follows that the Union must establish that the Grievor has some right under the collective agreement with regrad to overtime that has been breached by the Employer. Article la-overtime reads: 13.1 13.2 13.3.1 13.3.2 13.4 13.5 13.6 The Overtime rate for the purposes of this Agreement shall be one and one-half.(l l/2) times the employee's basic hourly rate. In this Article,"Overtime" means an authorized period of work calculated to the nearest half-hour and performed on a scheduled working day-in addition to the regular working period, or performed on a scheduled day(s) off. Employees in Schedules 3.7 and 4.7 who perform authorized work in excess of seven and one-quarter (7 l/4) hours or eight (8) hours as applicable, shall be paid at the overtime rate. Overtime shall be paid within (2) months of the pay period within which the overtime.was actually worked. Employees in Schedules 3 and 4 who perform authorized work in excess of seven and one- quarter (7 l/4) hours or eight (8) hours as applicable, shall receive compensating leave of one and one-half (1 l/Z) hours for each hour of overtime worked, at a time mutually agreed upon. Failing agreement, the ministry shall reasonably determine the time of the compensating leave. Where there is mutual agreement, employees may receive compensating leave in lieu of pay at the overtime rate or may receive pay at the overtime rate in lieu of compensating leave. Compensating leave accumulated in a calendar year which is not used before March 31 of the following year, shall be paid at the rate it was earned. Effective March 1, 1978, the March 31 date may be extended by agreement at the local or ministry level. 13.7.1 13.7.2 - 5 - Employees who are in classifications assigned to Schedule 6 and who are required to work on a day off, shall receive equivalent time off. Notwithstanding 13.711 and Article 19.G (Holiday Payment), employees who are in classifications assigned to Scheduled 6 and who are assigned to forest fire fighting or related duties, shall be paid one and one-half (1 l/2) times the employee's basic hourly rate, to be calculated on the basis of thirty-six and one-quarter (36 l/4) hours per week, for all such work after eight (8) hours in a 24-hour period. The.Article simply defines "overtime" and provides for payment or compensating leave for overtime work performed. As the Board has found in a number of cases, among them Pehlke, ,791/08, there is no employee right to overti-me work. The Employer has the exclusive managerial right to schedule such work. No provision is made for payment for overtime work not actually performed. There is no procedure laid down for the distribution ~of overtime work. No notice of the scheduling of overtime work or of the cancellation of such work once scheduled is required. There is no prohibition against or penalty for cancellation, or for the transfer of scheduled overtime work from one employee to another. The only right conferred onemployees by Article 13 is the right to be paid at the specified wage rate or to receive compensating leave for overtime work as defined; that is, that has been. authorized and performed. : - 6 - Our conclusion must be that the Grievor had no contractual right to the overtime work in question and that, not having performed it, ~.he has no right to payment for it. We find that the grievance is not arbitrable and it is therefore dismissed. We feel impelled to express our disappointment at the inconsiderate treatment to which the Greivor was subjected. No attempt is made to justify the cancellation of the Greivor's assignment on,grounds of economy or efficiency. It is simply said that the collective agreement has not been contravened. Certainly, the letter of the collective agreement supports the action of the Employer. But one could wish that the Grievor's assignment had been left undisturbed if only because it had inevitably disrupted his Christmas Day activities. 1988. Dated at Toronto, Ontar '30, this 25th day of nay P.M. Draper - Vice-Chairman J. Solberg.- Member D. Montrose - Member ADDENDUM -------- The chairperson of this board is filled with understanding end moderati,on. Luckily, I need'not share those admirable qualities. so let me gild the lily on the final paragraph of his award. Had this employee called his suprrv1noc an .'::3 !A c before the cummencement of his overtime shift, in order to ~!~~fcr-:x his employer that he was unavailable to begin work, twu things would likely 'have occurred. The employee would have beei; forlM?ly di*ciplined .o@ qofficially passed bY f 0 c f '1 t ,L 1' ;.2 overtime asslgnmrnti. That shows very little equali Bad labour'eelations. And rio f~airness at'all 3ce. ty in the wurk:p J. Solberg