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HomeMy WebLinkAbout1998-0959.Winslow.99-03-23ONTAR/ CROWN EMPLOYEES GRIEVANCE SETTLEMENT BOARD EMPLOY& DE LA COURONNE DE L’ONTARKY COMMISSION DE RikGLEMENT DES GRIEFS 180 DUNDAS STREET WEST SUITESOO, TORONTO ON h&G lZ8 180, RUE DUNDAS OUES7; BUREAU 800, TORONTO (Onr) h&G IZS TEiEPHONEjTkiPHONE : (416) 326-7388 FACSIMILE/7~tiCOPIE : (476) 326-7396 GSB #0959/98 OLB #125/97 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Liquor Boards Employees’ Union (Ian Winslow) Grievor - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) BEFORE Susan L. Stewart Vice-Chair FOR THE GRIEVOR Julia Noble Legal Counsel Ontario Liquor Board Employees Union FOR THE EMPLOYER Alison Renton Counsel, Legal Services Liquor Control Board of Ontario Employer HEARING February 18,1999 . DECISION The grievance before me is dated April 22, 1997, and is filed on behalf of Mr. I. Winslow, a Maintenance Mechanic employed at the Durham warehouse. The grievance was heard pursuant to the expedited process in the Collective Agreement. There was no objection to my jurisdiction to hear and determine the grievance. The grievance arises from a claim by Mr. Winslow that he ought to have been assigned certain overtime work performed on Saturday, April 5, 1997. It is claimed that the overtime work was assigned to another employee, Mr. D. Jones, contrary to the process contemplated by the provisions of the written guidelines governing assignment of overtime. Those guidelines provide as follows: 1. Where there is a requirement for overtime to be worked, it shall first be offered to full-time employees on a rotational basis. Where sufficient personnel do not volunteer, such overtime shall then be offered to permanent part-time employees then to casual employees. Failing sufficient volunteers, overtime would be assigned to the least senior qualified employee. (Article 6.6 (b): Collective Agreement) 2. 3. - 4. Employees assigned will have an * symbol placed beside the t'DVV in the accept/decline column. Person with lowest overtime hours will be asked first. Overtime- hours will be calculated -at a multiplier rate of 1.5 or 2.0 depending on day worked, refused etc. 5. Saturday Midnight Shift: Person normally scheduled for midnight shift on that week will be asked for overtime first. If he/she 2 refuses the person with the lowest total of hours will be asked first provided he/she is not working the afternoon shift. 6. Hours will be charged for vacation, sickness, declines, W.C.B. E-Time, etc. 7. A person who finishes their midnight shift at 8:00 a.m. and overtime is decided on later in that day will be passed over with no hours charged. 8. Any new employee will automatically attain the highest number of hours worked by anyone in his/her classification as of his/her first shift of work in that classification 9. Total hours of worked [a] by staff will be posted weekly in maintenance shop. The Union's position is that paragraph 7 precluded the Employer from offering Mr. Jones a Saturday overtime shift after he had completed his midnight shift on Friday, April 4, 1997. The Union's position is articulated in Ms. Noble's February 3, 1999 letter of particulars as follows: [The Employer's actions were] contrary to the established practice and agreement for offering Saturday overtime to maintenance mechanics which provides that a maintenance mechanic on the midnight shift will not be offered Saturday overtime that week but will be passed over without penalty to his/her position on the rotation. Had the established practice and agreement been followed, Mr. Winslow should have been offered the Saturday overtime shift, not Mr. Jones. The Employer's position is that because the decision to offer overtime was made prior to the completion of Mr. Jones' midnight shift, paragraph 7 of the overtime guidelines has no application. Ms. Renton's February 17, 1999 letter of particulars notes that: I 3 . . . the LCBO solicited the day shift overtime and applied the process described in paragraph 3, which is to start soliciting the overtime with the person who has the least amount of cumulated overtime hours. Mr. Heavysege had the least amount of hours: he was offered the shift, but declined. The next person with the least amount of hours was Mr. Wright; he was offered the shift, but also declined. Mr. Jones was then offered the hours and he accepted. Had he not accepted, then the Grievor would have been offered the hours. Mr. Jones was offered the overtime, despite the fact that he was working nights, because the decision to offer overtime was made before Mr. Jones left his midnight shift. The LCBO's position is that point 7 of the guidelines is not applicable because it pertains to a decision to offer overtime being made after the employee finishes his weekly shift of midnights. As the foregoing suggests, the essence of this dispute is the interpretation to be given to paragraph 7 of the overtime guidelines. Emphasizing the use of the phrase "decided on" in paragraph 7, Ms. Renton submitted that the provision was intended to prevent the Employer from manipulation of overtime opportunities and ought to be interpreted in light of that purpose and the particular language chosen by the parties. In Ms. Noble's submission, the intention of paragraph 7, like paragraph 5, was to ensure that a person who was working the midnight shift would not be put in the difficult position of being penalized for declining overtime when to accept the overtime work would have the potential to interfere with the ability of the employee to deal with the unusual sleeping schedule necessitated by working midnight shifts. The provisions of the overtime guidelines which govern this l , matter are very brief force in Ms. Renton's 4 and somewhat cryptic. While there is some argument in relation to the particular words chosen by the parties in paragraph 7, I found Ms. Noble's argument 'as to its purpose to be much more compelling than the argument advanced by Ms. Renton in this regard. The Union's submission in this regard is also consistent with the thrust of paragraph 5 of the guidelines as well as the practical realities of shift work. Accordingly, it is my conclusion that the overtime opportunity should not have been offered to Mr. Jones, given that his midnight shift was over, but, rather, that it should have been offered to the grievor, Mr. Winslow. In the result, the grievance is allowed and Mr. Winslow is entitled to compensation for his loss. I retain jurisdiction to deal with any difficulties that the parties may experience in finalizing this matter. Dated at Toronto this 23'dday of March, 1999 A, S.L. Stewart - Vice-Chair