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HomeMy WebLinkAbout1987-2431.Churchill et al.89-04-10EMPLOYc3 DE LA COURONNE DEL’*NrAmo C$lMMISSION DE REGLEMENT DES GRIEFS IN TAE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING~ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Church::: et al) - and - Before : APPEARING FOR THE GRIEVOR: APPEARING FOR THE EMPLOYER: Hearing: Grievor Employer Z. Forbes-Roberts Vice-Chairperson P. Klym Member A. $:+.pletW! Member A. R. Rae Human I?csources Secretariat Staff Reiati<>!i:; 81'.%iC~! DECISION -__----- The instant case lnvolves a number of identical grievances filed by Residential.Counsellors at the W. Ross MacDonald School (“the School”) which is located in Brantford, Ontario. The School provides services to blind and visually impaired persons, most if not all of whom aze residents. Because of this factor the School must be staffed twenty-four (24) hours a day, seven (7) days a week, including holidays as prescribed by article 48 of the collective agreement. The contentious issue between the parties is the rate of pay vhlch attaches to vork performed by Residen- tial Counsellors on these holidays. By vay of background, the grlevors are compr lsed of emp- loyees in both the Residential Counsellors’ II and III classlfi- cations. Both groups are regularly scheduled for tvelve (12) hour shifts. Because the School is a residence part or the majority of those tvelve (12) hours may be nocturnal during which the normal expectation ii that students will be asleep. Reslden- tlal Counsellors are expected to do the same. Thus thelr shifts are, or may be divided into “periods of vork” and “sleep-in hours”, terms vhlch vi11 become important as ve turn to the specific language of the collective agreement. The parties are In disagreement over vhlch provisions of the collective agreement govern the rate of premium pay vhlch should attach to hours “vorked” on an holiday. The relevant portions of the collective agreement are as follovs: ARTICLE 9 - SCHEDULED TOUR OF DUTY OR SHIFT 9.1 A shift vhich does not commence and end on the same calendar day shall be considered as falling vholly vlthln the calendar day on vhlch the shift corn mences. ARTICLE 19 - HOLIDAY PAYMENT 19.1 Where an employee Kprks on a holiday included under Article 48 (Holidays), he shall be paid at the rate of tvo (2) times his basic hourly rate for all hours vorkad vith a minimum credit of seven and one-quarter (7 i/4) eight (8), or the number of regularly scheduled hours, as applicable. ADDENDUM TO THE WORKING CONDITIONS AND EMPLOYEE BENEFITS UNDER THE COLLECTIVE AGREEMENT The parties hereto have agreed to the terms of this Addendum covering employees in classifications of Residential counsellor I. II andIII in the Institutional Care Category -2- . . . . * This Addendum shall be attached to mformt of the Worklna Conditions and uovee BeA=- Aarm The terms of the settlement are as follow: . . . (b) ) &r soiclfled hereyn....Sleeo-in hRurs orlor to or follovina a oeriod of vork shall not form a Dart of the vork shift for anv ouroose of this aareg- ?IaL (* It vas not disputed that the above dillneated group includes the grlevors.) APPENDIX 3 SCHEDULE A . . . Hours Worked on Holidays or Other Regular Workdays: (a) &&J-hours vowon a hol-lday included under Article 48 (Holidays) f&all be Daid at the rate of tvo (2) ) emol vee vas receivina v&n the hpbldav vas work:& (all emphasis added.) The facts giving rise to the grievances relate to the Remebrance Day holiday, November 11, 1987. The grieving Reslden- tial Counsellors commenced shifts on November 10, 1987 vlth “sleep-in” hours. They then commenced their respective periods of vork on November ll.ln accordance vlth the residents usual rising time. Their actual hours ~vorked on November 11 varied from tvo (2) to ten (10). Because they commenced their shifts on November 10th the Employer took the position that in accordance with article 9.1 of the agreement (above) they were not entitled to premium pay for any hours m vorked on the 11th. At the hearing Union counsel argued that the specifics of the Addendum override the generalities of the main body of the agreement. Because in the Addendum the parties have deliberately turned their minds to the peculiar vork demands and schedules of Residential Counsellors, article 9.1 of the agreement does not apply. The Residential Counsellors are entitled to be remunerat- -3- ed under the terms of the Addendum. The Employer argued that to ignore article 9.1 of the agreement somehov created a split shift for Residential Counsel- lors,a condition prohibited by article 10.4. We agree with the Union’s position. In the main body of the agreement article 9 deems that a shift is a shift is a shift, denoting a continuous period of vork. However the Addendum does not address this issue in the abstract. Rather itaddressesthe specific requirements of a residential School, recognizing that shifts can be notionally divided without being actually split. Within a single tvelve (12) hour shift there can be “sleep- in hours” and “vork hours”. By virtue of the Addendum, and for obvious reasons, “sleep-in hours” are specifically excluded from premium pay provisions. This does not mean that premium pay provisions are not to be found for this specialized group of em- ployees. Appendix 3 - Schedule A dictates that for hours vorked on a holiday Residential Counsellors vi11 be paid at double time. Thus, appropriate to the nature of a Residential Counsel- lor’s duties, the Addendum does not treat a shift as a conti-, nuous, monocromatic event. Rather it deals vith the portions of a shift. As correctly argued by Union counsel, the event triggering premium payment is the act of vork on a holiday. The grievances hereby succeed. The Employer is ordered to pay the grievers at double time for hours vorked on November 11, 1987 regardless of vhen their shifts commenced. The Board shall remain seized in the event that the parties have difficulty implementing this avard. Dated at Toronto this 22nd day of Hareh Dated at Toronto this 22nd day of Harch , 1989. , 1989. P. Klym, Hehbcr / l‘i. 4 . . JIL,A L?‘ ._. ___-----_-------________________ A. Stapleton, Member Under TEE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before Between: THE GRIEVANCE SETTLIMENT BOARD , OPSEU (Jones) Grievor - and - The Crown in Right of Ontario (Ministry of Community and Social Services) Employer Before: APPEARING FOR THE GRIEVOR: APPEARING FOR TEE EhPLOYER: HEARING: J. Forbes-Roberts - Vice-Chairperson I.J. Thomson - Member M.F. O'Toole - Member A. Ryder Counsel Gowling & Henderson Barristers & Solicitors R.J. Anderson Senior Solicitor Legal Services Branch Ministry of Community and Social Services June 3, 1988 August 16, 17, 1988 October 11, 19aa November 17, 1988 The grievor, Mr. Ronald Jones is employed vith the Ministry of Community and Social Services (“the Employer”) as a Parental Support Worker (“P.S.W.*). He has vorked in the Employer’s Income Maintenance Programme for approximately tventy (20) years, and barring the instant matters has apparently had a clean record. He has before this Board five (5) grievances all dealing vith disciplinary penalties handed out to him from October 9, 1987 to January 19,1988. They are as follovs: October 9, 1987 - vritten reprimand October 14, 1987 - vritten reprimand January 11, 1988 - one day suspension January 13, 1988 - three day suspension January 19, 1988 - five day suspension A single issue, thaugh not a single set of facts forms the basis of the dispute betveen the Employer and the grievor. It ‘is the Employer’s contention that the grievor refused to perform his assigned duties. It 1s the grievor’s position that the Employer ordered him to perform at vorst an illegal land at best an immoral act. The facts are as follovs. A P.S.W. helps social assistance recipients to enforce support orders. This may involve negotiating agreements to pay, enf arcing court ordered support payments, and/or collecting payments vhich are in arrears. Prior to 1981 the P.S.W. assisted the custodial parent vho vas seeking to enforce an agreement or order by helping to complete the documents and affldavit mater- ials vhich vould be put before the court. Central vas Form 35 Request For Enforcement (see Appendix A). The P.S.W. helped the custodial parent complete this af f.idavit and then commissioned her* svorn signature. Arrears vere creditor, sometimes ledgers. ascertained based on information from the Hovever prior clerical function. from the debtor, and ‘by examining the court to 1987 the P.S.W. vas not limited to this The sources of information used to ascertain the amount of arrears vere recognized as potentially less than accurate. The court ledgers vere sometimes incomplete or out of date. The creditor sometimes did not knov if she had received out of court payments, oz thelr amounts. Sometimes the debtor * Evidence vas heard that the vast majority of custodial parents seeking to enforce orders are mothers. For simplicity ve vi11 USC thf female pronoun throughout. - 2 - could not be found and therefore could not give his side of the past payments story. Recognition of this potential inherent inaccuracy vas granted in tvo 12) vays. First, ln paragraph 4 of form 35 follovlng “The order is in default in the amount of S . ..“. the P.S.W. was permitted to add the phrase “as per the court ledger”. There vas thus no suggestion that the affidavit’s deponent or the commissioning P.S.W. had performed any calculations themselves, but rather were simply relying on the courts’ information. Indeed in extreme cases the P.S.W. vas permitted to insert the phrase “amount of arrears unknovn” and the judge vould then simply deem the amount oving. As part and parcel of this system the P.S.W. vas granted standlng before the court. He or she could thus flag for the judge any “guesstimates” in the affidavit or supporting materials and leave it to the bench to make a final determination. In 1987 the Support and Custody Order Enforcement Act (“S.C.O.E.A.“) came into effect. Following the enactmentof this legislation changes occured in the grievor’s function and in the enforcement procedure itself. P.S.W.‘s began using vhat was knovn as a S.C.O.E.A. filing package. Part of this package vas Form 35A Statement of Arrears (see Appendix Bl vhich replaced Form 35. It remained the P.S.W.‘s function to assist the creditor In collecting the financial lnformatlon necessary to file this form, I and to commission her sworn signature. Hovever there ended the similarity betveen Form 35 and Form 35A. In using Form 35A the P.S.W. vas not permitted to insert in paragraph 4 the qualifying phrase ‘as per court ledger” or “amount of arrears unknovn”. Instead an m figure had to be svorn as due and ovlng by the debtor. Indeed the exact statement of arrears had to be broken dovn precisely in Schedule A on a month by month basis. The creditor had to swear both these statements and the P.S.W. had to commission her signature. In addition the P.S.W. could no longer appear in court to clarify ambiguities or Nguesstimatesw. S.C.O.E.A. also made provlslon for assignment of support orders to the Llnlstry. In those cases the P.S.W. vas expected to svear to the statement of arrears himself in an effort to realise on default orders. Unfortunately the new legislation and forms did not improve the sources or quality of information upon which the forms vere completed. Court ledgers were still often out of date, the creditor still often didn’t knov if unrecorded monies had been pald to her, and the debtor vas still often not available to tell his side of the story. Nevertheless under S.C.O.E.A. the grievor . . -3- vas being asked to personally svear to or to advise a client to svear to the accuracy of information gathered from these sources. It is over this issue that the Employer and the grievor came to an impasse. Under this nev regime if the grievor knev that a client vas uncertain of the amounts owing and they could not be reliably ascertained he refused to advise the client to sign the Form 35 nor vould he commission her signature. In the case of an assignment to the Ministry in vhlch the grievor vas uncertain of the amounts owing he vould not personally svear the Form 35A or attendant Schedule A. Both acts prevented filing of the- S.C.O.E.A. packages. The Employer took the position that there was no difference betveen Forms 35 and 35A, and thus the grievor’s refusal to complete the S.C.O.E.A. packages constituted an improper refusal of a legitimate vork assignment. and therefore was insubordina- tion. The grievor took the position that to svear or to counsel the svearlng of a false affidavit vas illegal and could leave him open to criminal or civil liability. By vay of clarification it vas agreed that the’grlevor completed approxlmately eighty (SO) per cent of the S.C.O.E.A. cases assigned to him. It was only when he was unsure of certain information that he refused to act as commissioner or deponent on an affidavit. This apparently amounted to three (3) files, Taylor, Bressette and Desblens. Beginning with the Taylor file the grievor attempted to make his concerns understood to his supervisor, Mr. Peter Lovery. This vas done both verbally and in writing. We do not find that nr . Lovery ever particularly took the grievor’s concerns serious- ly nor that he attempted to respond to them in a meaningful vay. By letter dated October 2, 1987 the grievor outlined to Mr.. Lovery the nature of his concerns, highlighting the issue of Form 35A. He requested a vritten response. This came in the form of Appendix C. We hardly find Appendix C responsive to Mr. Jones’ concerns.. It became clear from Mr. Lovery’s oral testimony that he believed the Form 35A only represented a statement which had to be true to the best of the deponent’s ability and based on the available information. This quite obviously begs the question of vhat to do vhen the information is IN& available. Indeed one of the Employer’s ovn vltnesses, Ms. H. A. Moretta conceded that if one could not stipulate the amount owing or in arrears one u & swear or comml5slon a Form 35A, the exact position consis- tently held by the grievor. The grievor ultimately vas assessed two (2) written varnings . . -4- and a one (1) day suspension for his refusal to complete the Taylor file. He ausbsequently received a three (3) day suspen- sion for refusing to file a Form 35A in the Bressette flle, and a five (5) day suspension for refusing to file one in the Desblens file. All were over the exact concern highlighted in his October 2, 1987 letter to Lovery. The Employer called evidence as to what actions the grievor could have taken to acquire financial information sufficient to satisfy his conscience yis a via the Form 35A declaration. Union counsel quite correctly, pointed out that information was neither sought out nor certain-ky not in the Employer’s mind at the time the discipline vas imposed and is thus irrelevant. The narrov issue becomes did the Employer have just cause to impose disci- pline on the grievor? We find that it did not. The S.C.O.E.A. filing package 15 put out by the Ministry of the Attorney General. Under the title Instructions on Hav To Complete Statement of Arrears it states: The Statement of Arrears is sworn under oath. You I@,!,& be absolutelv accwate in statina I.he amcwts YOU l&i& as not havlna been&& Every payment which has not been made must be identified individually. (emphasis added) The grievor was left in a very unpallatable position. His supervisor’s instructions and those contained in the very package he was being ordered to complete were at odds. The latter only confirmed the grievor’s belief that to follov the former was to perform or to counsel an illegal act, and to ignore the dictates of his own conscience. The Employer sought to invoke the “obey nov, grieve later” doctr lne. In the event of a subsequent civil or criminal action one vonders what .defence this would leave available to the grievor. (Fortunately this Board does not have to determine if fear of one’s supervisor is sufficient to constitute the defence of necessity.) We do not find this an appror late case for the af oremen- tioned doctrine. We do not believe that the grievor’s potential liability could be cured by subsequent recourse to the gr ievan:e procedure. Knowingly swearing an untrue affidavit is not a breach of the collective agreement, but rather a breach of a statute. Further ve find that the Employer’s orders to commission and/or svear the Statements of Arrears in the Taylor, Bressette and Desbiens cases vere unreasonable and unfair in the circum- stances. Indeed given the clear instructions in the S.C.O.E.A. . . -5- filing package there is a strong argument that t4r. Lovery was giving orders which were w for the grievor to follow. The grievances are hereby alloved. All references to the October 9, 1987, October 14, 1987, January 11, 1988, January 13, 1999 and January 13, 1989 disciplinary actions are to be expunged from the grievor8 record and he is to be made whole for any from their imposition. The Board will monetary loss flowing remain seized in the tion of this award. event of any difficulty in the implementa- Dated at Toronto this 10th day of April, 1989. \qqp---- J. Forbes-Roberts. Vice-Chairperson 1-J. Thomson, Member 0 \ _ t4.F. O’Toole, t4em& a I”..,,Y#U. ““Ye. (Family Division) $y=arl& A Request for Entorcement -1s,, I. the undersigned. make oath and sav: 1. I seek to enforce the following ardrr *Nch soal: Date of order ceun 2. The order is being enforced for the b&fit of ’ Court file no. Full nameIs Relationship to creditor 3. I authorizc the court to receive. record and pay out to me of my nrigne all rwnr plvablc under the order, including costs. -- 4. lhi order is not in default. or The order is in dofrult in the amount of S ’ . as of todJv. 5. I request that the ada be enforced against the debtor nowjj~~$,+#omri.ca!!v upon any $tura default. by means Of a 1, notice of default requiring the debtor to file I sutammt of financial information. &ear befor;ik~~ to explain under oath the default up to the date of that appewana wd to pay into mwt the costs of the pwxeding. incurred bv me or those acting on my behalf. 6. I also request that the debtor submit to m exuninrtion of anests and rnaan~ if &directed by the clerk of the court. 7. I request the court to consider enforcement of this order bv ordering any or all of the remedies set forth in the Familv Law Reform Act. including imprisonment. as mav seem worowiatc to the ~)urt. Provincial Court fiPperlc+JX 1, Statement of Arrear. (Family Division) Form 35A court file “0. n I ,ddrssl Creditor =I Addwu far ,cwicc ,*,mr * ““rnbW, rn”rnEip7lil”, I, the undersigned. make oath and say: 1. I am the creditor under the following - III order Date Of order cuun 0 agreement filed with the court Date Of agreemenr Date filed 2. The following amounts due under the order/agreement have not been paid: Date ,myme”t due Amount due Date raid Court file no. Sworn before at the in the this _ day of FD 211 (‘U m/86, of of ,19-. A mmm;n;oncr. etc. Total Arrears S Total interest to da; calculated at - TOTAL $ . Ministry of the Attorney General Pp/am+% ” SCHEDULE “A” Support and Custody Enforcement Branch Amount Due Amount Paid Community and Services SOCiaUX Social Services et communautaires Ontario 720 North,Christina Street Sarnia, Ontario N7V 3C2 Tel.: 337-3735 October 7, 1987. Mr. Ron Jones, Parental Support Worker, Sarnia, Ontario Dear Mr. Jones, In response to your letter of October 2nd, 1987 please be adviceed that you are to continue to exercise your responsibility as a Parental Support Worker and in so doing complete the Support and Custody Orders Enforcement Act applications. As you are aware it is Management's right to assign work. Failure by an employee to do work assigned cqnstitutes insubordination and is subject to disciplinary action. Should you disagree with my position please contact your Ontario Public Service Employees Union representative. Yours truly, Income Maintenance Branch, Sarnia. PL/eds.