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Home My WebLink About1987-2013.Patterson.88-11-08OHTAR! EMPLOY&DELA COURONNE CROWNEMPLOYEES DEL’ONTARIO GRIEVANCE mm BOARD CQMMISSION DE SETTLEMENT REGLEMENT DES GRIEFS _- 2013187 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARI) Between: -- OPSEU (Juli Patterson) and The Crown in Right of Ontario (Ministry of Correctional Services) Before: I. Springate Vice Chairperson J. McManus Member D. Montrose Member For the Grievor: I,. Trachuk Counsel Cornish & Associates .- Barristers and Solicitors For the Employer: J.F. Benedict Manager Staff Relations and Compensation Ministry ok Correctional Services Hearing: April 25, 1988 Grievor Employer AWARD The grievor is a correctional officer employed at the Sault Ste. Marie Jail. She volunteered to work, and management agreed that she could work, an overtime shift on each of August 11 and 13, 1987. This was during a period when the grievor was scheduled to be on vacation. On August 6, 1987, the employer advised the grievor that because she would be on vacation, she could not work the two overtime shifts. Other employees at the jail worked on an overtime basis on at least one of the two days in question. The grievor contends ~that the employer’s cancellation of the two overtime shifts resulted in her being improperly laid off on both August 11th and August 13th. In support of the grievor’s position, counsel for the union relies on certain arbitration awards which have held that an unequal reduction in work hours amounts to a layoff and thus triggers the seniority provisions in a collective agreement. See: Re Charlotte Eleanor Englehart Hospital and Service Employees Union, Local 210 (1980), 25 L.A.C. (2d) 25 (Palmer) and Re Ballycliffe Lodge Ltd. and Service Employees Union, Local 204 (1984).-, 14 L.A.C. (3d)‘37 (Adams) . Union counsel contends. that because the cutback in overtime hours was unequal, affecting only the grievor, she should.likewise be regarded as having been laid off. The union does not contend that the alleged layoff of the grievor -2- was improper because the employer failed to follow the seniority/job security provisions in the collective agreement. Rather, itbases its claim on the employer's practice of assigning overtime at the Sault Ste. Marie jail on an equitable basis. Because this approach was not followed insofar as the grievor was concerned, contends the union, the cancellation of the grievor's, two overtime shifts was improper and, accordingly, the resulting layoff o'f the grievor was also improper. Issues relating to hours worked in excess of an employee's normal work day or work week are generally dealt with in the overtime provisions in a collective agreement. Such provisions, including the one in the agreement between the parties, stipulate when overtime payments must be paid and the amount of such payments. Some agreements, although not the one before us, also contain specific provisions as to how overtime is to be distributed. In the instant proceedings the union does not allege that the employer has violated the overtime provisions of the collective agreement. Rather, it relies solely on its claim thqt the grievor was improperly laid off. A layoff generally involves a situation where an employee ceases to be actively employed due to a reduction in - 3 - the work force. Recognizing that collective agreement provisions governing layoffs are designed to protect the work opportunities of senior employees, arbitrators have generally held that the cutting back on the regular hours of work of some, but not all, employees is also a form of layoff. Accordingly, in such situations the seniority of employees must be taken into account when selecting those individuals whose hours are to be cut. It is noteworthy, however, that Article 7 of the collective agreement before us sets out the normal weekly hours of work for employees. This provision serves to restrict this employer’s ability to utilise cuts in the hours of work of some or all employees as an alternative to totally laying off more junior employees. The collective agreement deals with layoffs in Article 24 under the heading of ‘“Job Security”. The article in question, which is very lengthy, commences as follows: 24.1 Where a lay-off may occur by reason of shortage of work or funds or the abolition of a position or other material change in organisation, the identification of a surplus employee in an administrative district or unit, institution or other such work area and the subsequent assignment, displacement or lay-off shall be in. accordance with seniority subject to the conditions set out in this Article. - 4 - 24.2.1 Where an employee is identified as surplus he shall be assigned on the basis of his seniority to a vacancy in his ministry within a forty (40) kilometre radius of his headquarters provided he is qualified to perform the work and the salary maximum of the vacancy is not greater than three percent (3%)above nor twenty percent (20%) below the maximum salary of his classification, as follows: - a vacancy which is the same class or position as the employee’s class or position; - a vacancy in a class or position in which the employee has served during his current term of continuous service; or - another vacancy. The article then goes on to indicate that a surplus employee not assigned to a vacancy in accordance with the procedure set out above may be assigned to a vacancy in his ministry beyond a forty kilometer radius of his headquarters or to a vacancy within another ministry. should it happen that a surplus employee is not assigned to a vacancy in accordance with the above procedures, he or she becomes entitled to “bump” a more junior employee selected in the following manner: _* 24.6.1 An employee who has completed his probationary period and who is subject to lay-off as a surplus employee, shall have the right to displace an employee who shall be identified by the Employer in the following manner and sequence: - 5 - (a) The Employer will identify the employee with the least seniority in the same class in which the surplus employee is presently working and if such employee has less seniority than the surplus employee, he shall be displaced by the surplus employee provided that such~ employee is in the same ministry and within a forty (40) kilometre ~radius of the headquarters of the surplus employee and provided that the surplus employee is qualified to perform the work of such employee; (b) If no employee in the same class has less seniority than the surplus employee, the Employer will identify the employee in the class in the same class series immediately below the class in which the surplus employee is presently working who has the least seniority and if he has less seniority than the surplus employee, he will be displaced by the surplus employee provided that such employee is in the same ministry and within a forty (40) kilometre radius of the headquarters of the surplus employee and provided that the surplus employee is qualified to perform the work of such employee ; (c) Failing displacemenfunder (a) or (b) the Employer will review the classes in the same class series in descending order until a class is found in which the employee with the least seniority in the class has less seniority than the surplus employee. In that event such , - 6 - employee will be displaced by the surplus employee provided that such employee is in the same ministry and within a forty (40) kilometre radius of the headquarters of the surplus employee and provided that the surplus employee is qualified to perform the work of such employees. (d) Notwithstanding the above, in the event that there are one or more employees in one or more classes in another class series in which the surplus employee has served during this current length of continuous service who have less seniority than the surplus employee, the surplus employee will displace the employee with the least seniority in the class with the highest salary maximum (no greater than the current salary maximum of the surplus employee’s class) and provided that the surplus employee has greater seniority than the displaced employee hereunder, provided that such employee is in the same ministry and within a forty (40) kilometre radius of the headquarters of the surplus employee and provided that the surplus employee is qualified to perform the work of such employee. The collective agreement prov-isions set out above indicate that a layoff involves a surplus employee. Prior to being laid off, such an employee is to be afforded the opportunity to fill existing vacancies and, failing that, the right to displace a more junior employee. The grievor was - 7 - not a surplus employee. She was on a paid vacation from which she later returned to her regular full-time job. She was not in any position to fill an existing vacancy or to displace a more junior employee out of his or her job. Given these considerations, we are satisfied that the cancellation of the grievor’s two overtime shifts did not constitute a layoff as that term is employed in the collective agreement. We make no judgement as to the propriety of the employer’s action in cancelling the grievor’s two overtime shifts. As already noted, however, we are satisfied that the cancellation of the shifts did not involve a layoff of the grievor under the collective agreement. In the result, the grievance is hereby dismissed. DATED at Ajax, this 8th day of November 1988. Ian Springate, Vice-Chairperson -.---4zL% t jk.&. John.McManus, Member \ Douglas C. Monkrose, Member