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Home My WebLink About1987-1293.Sim.88-10-11EMPLOY~S DE LA co OEL’ONTARIO GRIEVANCE COMMISSION DE SElTLEMENT REGLEMENT - J BOARD DES GRIEFS ,&I DUNO.4S STREET WEST. TORONTO. ONTAR,O. MS0 I,?8 - SUE 21w ,aQ RUE D”ND.4S 0”E.w TORONTO, ,ONTARIO, M.50 IZB. BURE4U2100 0% i”RONNE CM q w Between: Before: IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (Patricia Sim) and Grievor The Crown in Right of Ontario (Ministry of Correctional Services) Employer A. Barrett Vice Chairperson F. Taylor Member A. Stapleton Member For the Grievor: R. Nelson Counsel Gowling & Henderson -* Barristers and Solicitors For the Employer: J. Benedict Manager Staff Relations and Compensation Ministry of Correctional services Hearing: March 28. 1988 DECISION The grievor complains that she was not allowed to work on a statutory holiday, being Easter Monday, April 20th, 1987, and that this was either a change of shift for which she was not given proper notice pursuant to Article 10.1; or that it was a lay-off and violated her seniority rights pursuant to Article 24.1. She therefore requests premium pay as if she had worked on that day pursuant to Article 19. The grievor is a Correctional Officer 2 and works on a master rotation schedule along with the fifteen other C.0.2'~ in her unit at the Maplehurst Correctional Centre. Each of the C.O.' s is assigned a slot on a rotating shift schedule and progresses weekly through 16 different slots; then starts again at the beginning. Whenever a statutory holiday occurs in any given week two positions are marked with asterisks denoting that the employee in that position that week will be designated .surplus to requirements. Fewer staff are required on weekends and statutory holidays. During the'week in question the grievor was scheduled in slot 14 and Monday, April 20th, 1987 contained an asterisk indicating,that her position was surplus on that day. The Union says that because Monday was--a scheduled working day, what the employer did was change the grievor's shift schedule without the proper notice of 120 hours set out in Article 10.1 which is reproduced below: "Article 10 - SHIFT SCHEDULES 10.1 Shift schedules shall be posted not less than fifteen (15) days in advance and there shall be no change in -2- the schedule after it has been posted unless notice is given to the employee one hundred and twenty (120) hours in advance of the starting time of the shift as originally scheduled. If the employee concerned is not notified one hundred and twenty (120) hours in advance he shall be paid time and one-half (14) for the first eight (8) hours worked on the changed shift provided that no premium shall be paid where the change of schedule is caused by events beyond the ministry's control." The employer has a practice of giving written notice to employees who will not be required to work on statutory holidays and such notice was given to the grievor about 6+ hours short of the 120 hours mandated in Article 10.1. The grievor's notice read as follows: "TO:' Ms. P. Sim FROM: B.A. Bartlett DATE: April 7, 1987. As per the Superintendent's memo of August 25, 1982, RE: Statutory Holiday Coverage. Please be advised that your schedule has been changed for.April 20, 1987. You are now scheduled to be off duty on a Statutory Holiday (HOL) for that date. Presented to Ms. Sim 1320 hours April 15, 1987. . . . . . . . . . . . . . . . . . . . . . . . . . Unit Supervisor C.C. Supervisor's File" The Union argues that the memo given to Ms. Sim clearly indicates that her schedule has been changed and she will not be required to work on April 20th, 1987. This memo was prepared on April 7th, 1987 but not delivered to the grievor until April 15th, 1987 because between those two dates she had been - 3 -. off on a combination of holidays and regular days off. If the notice had been given to her the minute she reported for work on April 15th, 1987 the 120 hours would have been satisfied, but Mr. Bartlett, occupied with other matters, did not find the time to give it to her until about 1.20 p.m. that day. The employer asserts that what happened that week was not a change in shift schedules within the meaning of Article 10 and no notice was required to be given. The employer says the posted shift schedu.le did not change; just the requirement to work on that day due to the exceptional circumstances of a statutory holiday. The employer further argues that the Collective Agreement does not provide a right to an employee to work on a statutory holiday; rather it provides the right to have the day off, or if required to work, to be paid premium pay. Premium pay is only~paid where the employee "works on a holiday". Employer Counsel further argues, and we agree, that this was not a lay-off situation where seniority should govern. The argument appears to boil down to a matter of semantics. The Union insists that because Mr. Bartlett advised the grievor that her schedule had been.phanged, and conceded at the hearing that there is less work for c.O.2'~ on statutory holidays, the employer should be estopped from saying that this was not a change in shift schedule. - . - 4 - The employer says that irrespective of any wording used by management, several Grievance Settlement Board decisions support the view that this was not a shift change. It is the substance of the action which occurred which should be looked at, and not any words used by management. Several Grievance Settlement Board decisions have dealt with this very,issue and in particular G.S.B. 338/83 and 339183 (Birse). In that case, where the grievor was told he would not be required on Good Friday or Easter Monday the Board reviewed previous Board jurisprudence and concluded that the grievor was not entitled to anything more than the holiday pay he had already received. At page 6 of the decision the Board stated: "Article 19.1,is clear that the premium pay is for hours worked. We find that there is no provision in the collective agreement which prohibits management from ordering the grievor to take the day off on a statutory holiday, even though he was scheduled to work. While this Board has referred in the~past to Article 10.1 and the 120 hours' notice mentioned there, this appears to be the first case where less than 120 hours' notice has been given and therefore the first time that we must actually determine whether or not it is applicable in a case like this. We have already said that the parties before us agreed Article 10.1 is inapplicable, and we agree with this. There was no change in shift schedules here." : -5- ; . Although it was agreed in that case that Article 10.1 was inapplicable, the Board specifically concurred with that view on Page 5 of the decision when it said: "At our hearing, both parties agreed that Article 10.1 was not applicable because the grievor's shift schedule was not changed. He was not asked to work a different shift from what was.originally scheduled. It is simply a case of being ordered not to work a scheduled shift. With the greatest respect to the Board which decided the McCormick case, we are of the view that the parties before us are correct - this is not a change in shift schedules, there is no "changed shift" as provided for in Article 10.1." We agree that the reasoning and the finding in the Birse case and accordingly this grievance is dismissed. DATED at Toronto thisllth day of October-~ 1988. ANNE BARRETT- Vice-Chairperson Member .:,‘; , ,” ,’ y<. 1.1” _I -.~ A. Stapleton Member