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HomeMy WebLinkAbout1993-0033.Group.96-11-20Tj ONlARD EMPLOY& DE LA COURONNE CROWN EMPiOYEES DEL’ONlAR~ GRIEVANCE COMMISSION DE SE-l-l-LEMENT RkGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WES’I; SUITE 2100, TORONTO ON A&G 1.78 TELEPHONE&L&PHONE : (416) 326-1388 180, RUE DUNDAS WEST, BUREAU 2700, TORONTO (ON) M5G 1.28 FACSIhMElT~LLfCOPIE : (416) 326-1396 GSB # 33/93 \ OLBEU # OLBO52/93 IN TEE MATTER OF AN ARBITRATION Unc¶er THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before TEE GRIEVANCE SETTLEMENT BOARD . . BETOOEEN OLBEU (Group Grievance) Grievor - inna - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFORE: P. Knopf Vice-Chairperson FOR THE J. Noble GRIEVOR Legal Counsel Ontario Liquor Boards Employees' ,Union FOR THE M. Gage EMPLOYER Counsel Liquor ,Control Board of Ontario HEARING November 14, 1996' i This case arises because of a severe snow storm which occurred on December 11, 1992. It affected operations of the Durham warehouse and the employees’ ability to get in to work. The Union grieves that the Employer did not treat all the employees equally or fairly. Some employees were able to make it in to work for the day shift. Some tried to get in and were unable to navigate the roads successfully. Other employees realized the impossibility of travel and phoned in to indicate that they would be unable to make it in to work because of the weather conditions. Midway through the shift, the Employer realized that there were not enough employees present to continue operations. The shift was sent home: It was the Employer’s intention to pay everyone who arrived at work for the day shift for the full day’s pay. In the course of the arbitration it became known to the Employer that some employees were mistakenly only paid for four hours and had the other half of the shift deducted from the sick credits or had pay deducted. The Employer has undertaken to review the records and ensure that everyone who arrived on the shift will be made whole for the day. At the parties’ request the Board remained seized with the implementation of that undertaking. A second shift was scheduled to begin at 4:00 p.m. the same afternoon. Because of the weather conditions, the Employer contacted the employees on that shift in advance and advised them not to report to work. Those employees were paid for the shift, and no deductions were made from their attendance credits. 2- The employees who were scheduled for the day shift who were not able to make it to the work place were not paid for the shift. They were advised that they could use the attendance credit for the day, or a vacation day, or take no pay. The Union asserts . that the employees who were unable to make it in to work for the day shift were treated . unfairly in comparison to the employees on the afternoon shift who were advised not to report for report to work and yet who were paid for the full shift. The arguments and the case law submitted by counsel for both parties have been considered carefully. The issue in this case is whether the employees on the day shift who were unable to make it in to work because of weather conditions were treated unequally or unfairly in comparison to the employees on the afternoon shift who the Employer advised not to report to work and who were paid for the shifi. For burposes of this expedited arbitration, the complex questions of whether or not there is an implied duty of fairness or whether there was an actual requirement to pay for the afternoon shift need not be resolved. Assuming, without deciding, that there may be a duty of fairness that can be implied from the contract, it is the conclusion of this Board that no unfairness occurred in the circumstances of this case. The severe snow storm made it difficult if not impossible for employees to attend work. The few who were able to make it in to work made continued operations impossible. The Employer cannot be faulted for notifying the people on the afternoon shift not to attempt to make it to work and yet at the same time to pay for the shift. -3- , Similarly, the Employer cannot be faulted for sending the employees on the day shift home when operations became frustrated. These employees were also properly paid for the full shift. The question then becomes, should the employees who were unable to make it in for the day shift receive the same compensation as the other two groups of employees mentioned already? Through no fault of these employees they were unable to get to work. The Employer recognizes that they made bonafide attempts to get to work. The policy in place in this work place is that leave of absence is available to an employee if inclement weather prevents their being able to report to work. In the situation at hand, the Employer grantedthose employees attendance credits, vacation credits or leave of absence without pay, depending on their individual circumstances. It cannot be concluded that-this was arbitrary or unfair. When the Employer took the responsibility of sending people home or calling off the shift, it also undertook the responsibility for compensating those employees. This is a different situation from employees who, albeit for no fault of their own, were unable to attend work. If those employees were to receive one full shift’s pay or compensation they would receive-an unfair advantage over the employees on the day shift who actually worked for half the shift. The Employer’s stated reasons for making .a distinction between the employees who did and did not attend work was rational, based on existing policy, and fair and equitable under all the circumstances. Accordingly, the ‘grievance is dismissed. However, the Board retains jurisdiction over the implementation -4- of the Employer’s undertaking with regard to ensuring full compensation for the employees who did make it in to work for.the day shift. _ DATED at Toronto, Ontario, this 20th day of November, 1996. Vice-Chairpersbn