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HomeMy WebLinkAbout1987-0744.Klonowski.88-11-01EMPLOYES DE LA CO”RONNE DE L’ONJARIO CQMMISSION DE SETTLEMENT REGLEMENT DES GRIEFS Between: Before: IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (J. Klonowski) and The Crown in Right of Ontario (Ministry of Correctional~services) 744/87 Employer T.H. Wilson Vice Chairman F. Taylor Member P. Camp Member For the Grievor: E. Lennon G. Caroline COWlSel Cavalluzzo, Hayes & Lennon For the Employer: G. Lee Senior Staff Relations Officer Ministry of Correctional Services Hearing: February 23, 1988 Grievor DECISION The grievor grieves that he was entitled to time off on January 29, 1987 from the 23:00 - 07:OO hour shift in order that he might attend to write an examination held on the morning of January 30, 1987 in Brampton on a job posting. The parties agreed on a Statement of Facts: 1. The grievor, John Klonowski, is employed at the ministry's Maplehurst Correctional Centre as a Correctional Officer 2. 2. The grievor was first hired by the ministry on June 7, 1976 to work at its Maplehurst facility. He has been employed there steadily since 1983. 3. The Maplehurst facility has a correction- al staff complement of approximately 200, providing security coverage 24 hours a day. 4. The grievor has been an Ontario Public Service Employee Union local steward for the past two years. 5. In the fall of 1986, the grievor applied for a Correctional Officer 3 position at the ministry's Vanier Institute for Women. Those applicants who were short-listed for this position were required to write an examina- tion to be held on the morning of January 30, 1987, at Vanier Centre for Women, Brampton, 10:00 till 12:00 a.m. 6. On January 29, 1987, the grievor was scheduled to work the 23:00 - 07:OO hour shift. 7. On January 28, 1987, the grievor re- quested permission to take the January 29 shift off in order to write the examination scheduled for the morning of January 30, 1987. - 2 - 0. On January 29, 1987, the grievor was informed by the institution's scheduling officer that his request for time off with pay, as per Article 4.4 had been denied. The alternate request was granted for the January 29, 1987 shift. The grievor utilized one of his banked lieu days to cover his requested leave of absence. 9. The grievor filed the present grievance on March 10, 1987. 10. On September 16, 1986, the grievor was scheduled to work the 23:00 - 07:OO hour shift. He was to attend an interview for a job competition in London, Ontario on September 17, 1986 at 13:00 hours. The grievor was allowed to take the September 16, 1986 shift off with pay in order to attend the interview. 11. Mr. Robert Cheeseman is a Correctional Officer 3, employed by the ministry at Maplehurst. On May 28, 1986, Mr. Cheeseman was scheduled to work on the 23:00 - 07:OO hour shift. He was to attend a job competi- tion interview in Stratford, Ontario on May 29, 1986. Mr. Cheeseman was given permission to take the May 28, 1986 shift off with pay in order to attend the interview. 12. Neither party is aware of any other example at the Maplehurst facility of any staff members being granted time with pay as per Article 4.4 to attend an "oral interview" or a "written exam" when the "interview" or "written exam” has not been during their scheduled hours of work. However reasonable time off with pay from the scheduled shift is given for employees to change clothing and travel to interviews which are scheduled outside their scheduled shifts or to return from interviews. 13. Due to the nature of the facility requiring 24 hours a day, seven day a week coverage, staff to attend "interviews" or "written exam" during their regularly scheduled time off. The work schedule at Maplehurst consists of three shifts, No. 1 6:45 - 15:15: and there would be approximate- ly 50 correctional staff on that shift: No. 2 - 3 - 15:00 - 23:30 with approximately 50 correc- tional staff on that shift; No. 3 23:00- 07:00 with approximately 30 correctional staff on that shift and on any given day there would be approximately 60 staff on their day off and staff rotate through all the shifts on a weekly basis. Article 4.4 of the Collective Agreement provides: 4.4 An applicant who is invited to attend an interview within the civil service shall be granted time off with no loss of pay and with no loss of credits to attend the interview, provided that the time off does not unduly interfere with operating requirements. The union counsel addressed two issues before the Board. (1) Oral vs. written examination: and (2) that the "interview" itself was scheduled at a point on the day outside his scheduled shift. On the first point, the union argued that it did not matter for the purposes ~of' Article 4.4 that the grievor was taking a written examination rather than an oral one. The grievor as the facts show had successfully passed through the screening step and was short listed. He was personally to present himself to take in this case first a written examination. He might have been given an oral examination or a combination: it is the stage of the selection procedure to which Article 4.4 addresses itself. (2) The fact that the examination was not actually held during the grievor's shift does not prevent the claim under Article 4.4. The union submitted that the Grievance Settlement Board supervises job competitions to ensure that all employees - 4 - have a right to compete fairly on qualifications and capacities. On the actual facts of this case, the grievor did not in fact work on the shift immediately preceding the examination because he was able to use one of his banked lieu days. However, the issue is the interpretation of Article 4.4 and another employee in the same situation might not have any lieu days to draw on and might therefore be required to work the night before the examina- tion if Article 4.4 were interpreted not to apply. The ministry counsel argued that a written examination whether held in ministry offices or given to the grievor as a take home examination was not an "interview' within the meaning of Article 4.4. It is however a part of the competition process. The competition process is a procedure under the exclusive authority of the ministry under s. 18(l) of the Crown Employees Collective Bargaining Act, R.S.O. 1980; c. 108. With regard to the fact that the grievance relates to the shift before the shift during which the examination occurred, the counsel for the ministry argued that Article 4.4 includes only reasonable time off to go to an interview, attend it, and return to work during the shift. The ministry drew to the Board's attention the decision of Vice-Chairman E.E. Palmer in W.R. McKie and the Ministry of Transportation and Communications (G.S.B. No. 80/80). In that particular case, the grievor was required to attend the Stage 2 grievance meeting on one of his scheduled days off. If it had occurred during one of his working shifts he would have been paid while attending (i.e. got his full - 5 - day's pay though not on the job while at the meeting). The board rejected the argument which was based on Article 27.7.2: An employee who has a grievance and is required to attend meetings at Stage One and Two of the Grievance Procedure shall be given time off with no loss of pay and with no loss of credits to attend such meetings. The board held that the meaning of that clause is that where a grievance meeting is scheduled during times when the grievor is scheduled to work, the Employer is required to permit him to attend this meeting, pay him for the time while he is so engaged, and, finally, treat the time when he is at this meeting as if he had worked and worked for purposes of credits for vacations and the like (pages 6-7). Union counsel attempted to distinguish the McKie decision on the argument that the grievor was claiming extra pay in that case while~in the present case the grievor is only claiming time off. I have difficulty with that distinction: paid time off and pay for attending a meeting or a day off are basically both money issues and I do not see that decision as justifying such a distinction. Article 4.4 entitles an employee to time off to attend an interview. The grievor in this case is not claiming the time off to attend the interview, but is claiming time off to rest LIE for or sleep prior to the interview or examination so that he would be fresh and alert for the examination. The issue is payment for that time of sleep or rest. If a grievor had no lieu time available and requested unpaid time off and was refused, he might file a grievance that - 6 - the competition was unfair because he could only attend after working all night and was too tired to take the examination. Or he might argue that he could not afford to forego a day's pay and therefore the competition was unfair. But those claims would at least have to be demonstrated on the evidence. Here we have a simple interpretation issue. It is the language of a wage bargain issue. What compensation was bargained for by the parties in this Article? It is very much the same as the Article 27.7.2 problem dealt with by Vice-Chairman Kennedy in the McKie award. And I believe produces the same result. That being the case there is no need to determine whether the examination was an "interview" within the meaning of Article 4.4. The grievance is dismissed. DATED AT TORONTO, Ontario this 1st day of September, 1988 /'THOMAS H. WILSON Vice Chairman I dissent. (Without written reason.) F. TAYLOR, Member