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Home My WebLink About1987-0367.Frizell.88-06-01’ GRIEVANCE SETTLEMENT BOARD 0367/87 IN TAE MATTER OF AN ARBITRATION Under TEE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: ------- OPSEU (J. Frizell) and Grievor The Crown in Right of Ontario (Ministry of Correctional Services) Employer Before: A. Barrett Vice-chairperson G. Nabi Member I. cowan Member For the Union: _--__-~----._-- B. HanSOn counsel Cavalluzzo, Aayes & Lennon Barristers & Solicitors For the Employer: E. Hipfner _- ____. ---------.- Counsel Staff Relations Officer Management Board of Cabinet Hearing: ------- February 8th. 1988 : Decision At issue in this grievance is Article 49 of the Collective Agreement entitled Bereavement Leave: "49.1 An employee who would otherwise have been at work shall be allowed up to three (3) days leave-of-absence with pay in the event of the death of his spouse, mother, father, mother-in-law, father-in-law, son, daughter, brother, sister, son-in-law, daughter- in law, sister-in-law, brother-in-law, grandparent, grandchild, ward or guardian." At the hearing the parties proceeded on an agreed statement of facts which is set out below: " 1 . The grievor is a Correctional Officer 2 employed by the Ministry of Correctional Services at the Perth Jail. 2. The grievor's position is in Schedule 4, 7. for which the normal hours of work are forty (40) hours per week. 3. The grievor has been a classified member of the public service since April 22nd, 1976 and has been employed at the Perth Jail since that date. ~4. The grievor is employed at a facility where a compressed work week agreement is in effect. 5. Compressed work week agreements have been continuously in effect in the facility since 1976. 6. The grievor's regularly scheduled tour of duty consists of twelve (12) hours each shift. 7. On January 14, 15, and 16, 1987 the grievor was scheduled to work the 0700 hours to 1900 hours shift. 8. On January 13th, 1987 the grievor's father died. 9. On January 13th, 1987 the grievor notified the employer that due to the death of his father, he would be unavailable to work on January 14, 15, 16, 1987. -2 - : 10. The grievor did not report for duty on the shifts in question. 11. The employer granted bereavement leave to the grievor for January 14 and 15, 1987 and paid him his regular rate of pay for 24 hours. 12. The employer deducted 12 hours from the grievor's banked lieu time for his absence on January 16, 1987. 13. On February 5, 1987 the grievor submitted the present grievance to the employer." It was further clarified at the hearing that the employer's discretion as set out in Article 49 was exercised in favour of the grievor having three days off for the bereavement leave. The only issue is whether or not he should have been paid for the third day. The employer says thatthe three days leave of absence with pay referred to in Article 49 must be qualified by Article 1.2 which states "the normal hours of work for employees on these schedules shall be forty (40) hours per week and eight (8) hours per day." The employer says that it paid the grievor for three eight hour normal work days in that it paid him for two twelve hour compressed work days. The . employer saysthatif it paid the grievor 36 hours pay for three days off that would be discriminating against employees on the "normal" work week who would only be paid for 24 hours absence if they had taken off the same three days. Article 7.7 of the Collective Agreemententitlesthe parties to enter into "other arrangements" regarding "hours of work and overtime" on a local or ministry level with respect to variable work days or variable work weeks. Employer counsel says that only hours of work -3 - and overtime may be addressed in this local agreement, but Bereavement Leave as specified in Article 49 cannot be touched. In fact the local agreement negotiated between these parties refers to much more than the hours of compressed work weeks and overtime. It specifically addresses the issue of pro-rating holiday, sickness and workers' compensation benefit pay. The parties are entitled to address these issues in a local agreement pursuant to Article 35 of the Collective Agreement which allows them to negotiate on issues not excluded by the provisions of the Crown Employees Collective Bargaining Act. Bereavement Leave, and other leaves, are not excluded bargaining items under the Act. - Employer counsel finally argues that if the parties had wished to specify that pay for bereavement Ieave was to be based on calendar days rather than "normal" days, the parties could have said so explicitly. By omitting to specify how the days were to be calculated the parties should be implied to have been referring to “normal" work days. Union counsel urges us first to look at the purpose for which Bereavement Leave is intended. Be cites the often quoted case of Be Dominion Glass Co. Ltd. and Glass and Ceramic Workers, Local 235, (1973) 4 L.A.C. 2d 345, where the Board, after reviewing a multitude of prior cases said at page 353: . - 4- "What is apparent from these cases is that the purpose of bereavement leave is to provide an employee with time off without loss of pay to gather together with relatives at a time of personal tragedy for mutual comfort, to assist in making arrangements for the funeral of the deceased and for the immediate and after care of the deceased's survivors, and to enable the employee to bear his grief privately without immediate exposure to the comparative harshness ~of his working environment." Union counsel also cites a Grievance Settlement Board decision,number 86/76, the grievance of Fournier, at page 8: 'I... in our view Article 10 clearly anticipates the granting of a paid bereavement leave in those circumstances when, but for the leave provision, the employee would be required to suffer a loss of pay if she decided to remain off work to devote herself to those personal matters which are attendant upon the passing away of a close relation. Put simply . . . Article 10 in our view is only intended to protect employees against a loss of pay when they desire to be off work on the occasion of the death of a near relation." Counsel- for the Union directed our, attention to the terms of the local agreement which specifically amends parts of the main collective agreement to provide, for instance, that over- time pay commences only after 12 hours work, not the "normal" work days specified in Article 7.2. Holiday pay is also pro rated to take account of the 12 hour schedule. The short term sickness Article was amended to change days to hours, Vacation credits and workers' compensation benefits too are converted from days to hours in the local agreement. Clearly the parties' attention -5- . \, was drawn to the issue of pro-rating and converting days into hours where deemed applicable and therefore the failure on the part of the parties to convert bereavement leave from days into hours should be presumed intentional. The local agreement specifically states: "unless otherwise specified in this agreement all Articles of the working conditions and Employee Benefits agreement apply to employees covered by this Agreement". There is no mention of bereavement leave in the local agreement. With respect to the employer's argument that "normal" 8 hour per day employees are discriminated against by the possibility that a compressed work week employee might receive 36 hours pay for 3 days off while the "normal" employee would receive only 24 hours pay, one can simply reverse the argument and suggest that because compressed work week employees work fewer days than "normal" employees the likelihood of them getting 3 days off with pay for bereavement leave is greatly reduced. In many situations the employee would be scheduled for 3 days off at the time of a bereavement and receive no pay at all; whereas a "normal" employee would always receive one day's pay even if the death occurred on a Friday night at .the end of a "normal" work week. We accept the Union's submissions and find that the purpose of Article 49 is to give an employee 3 days off for the purposes set out in the Dominion Glass case, without loss of pay. It is -6 - not the number of hours that the employee would have worked that is significant: it is the need for time off which is being addressed in the Bereavement Leave clause. Accordingly the grievance is allowed and the grievor shall be paid for the 12 hours he did not work on January 16th, 1987, and ~the .lieu time deducted by the..empLoyer, We will remain seized of jurisdiction in this matter in the event there is any difficulty in implementing the award. DATED at Toronto this 1st day of June 1988. Anne Barrett Vice-Chair G. Nabi Union Member 4 cf, t .- I. Cowan Employer Member