Loading...
HomeMy WebLinkAbout1994-0031.Scarcello.95-05-03ONTARIO CR0 WN EMPL OWES EMPLOYh DE LA COURONNE DE L’ONTARIO GRIEVANCE CgMMlSSlON DE c SETTLEMENT REGLEMENT .- c L BOARD DES GRIEFS k ,- ? \ $“,“ ‘: J’ i’ ,bV 7 s ~~-,,c& ‘,/\\-i .+ !I,;':' 7). BETWEEN BEFORE: FOR THE GRIEVOR HEARING March 13, 1995 Grievor 180. DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. MSG 728 TELEPHONE/TEi~PHONE: (4 161 326- ,388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO). MSG lZ8 FACSIMILE/TELCC~PIE : (4 161 326- 7396 GSB # 31/94 OLBEU # OLB253/93 IN THE MATTER OF AN ARBITRATION Under TEE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OLBEU (Scarcello) - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer N. Backhouse J. Carruthers F. Collict u Vice-Chairperson Member Member J. Noble Legal Counsel Ontario Liquor Board Employees Union FOR THE EMPLOYER M. Kennedy Counsel Hicks, Morley, Hamilton, Stewart & Storie Barristers & Solicitors - Page 2 - THE ISSUE: The Grievor alleges that the Employer failed to pay him the premium rate for hours worked on a paid holiday. THE FACTS: .a The facts are not in issue. The Grievor, a vax operator, commenced working a shift at lo:42 p.m. on November lOth, 1993, which ended at 4:50 a.m. on November llth, 1993. The Grievor was given the evening shift off on November 11 th, 1993. The Grievor worked 4 days that week and received 5 days pay, thus having the benefit of a day off with pay in respect of the holiday. The relevant provisions of the Collective Agreement are as follows: “7.1 An Employee shall be entitled to the following paid holidays each year: New Year ‘5 Day, Good Friday, Easter Monday, Victoria Day, Canada Day, Civic Holiday, Labour Day, Thanksgiving Day, Remembrance Day, Christmas Day, Boxing Day and any special holiday as proclaimed by the Governor-General or Lieutenant Governor. If, during the term of this Agreement, a public holiday is proclaimed by the Governor-General, such holiday shall be deemed to be a paid holiday. 7.3 Where a paid holiday occurs on a Saturday or on a Sunday, employees will be granted a day in lieu of such paid holiday as allocated by the Employers. 7.4 Where employees are required to perform work on a paid holiday (refer to Article 7.1) such employees shall be entitled to receive payment in the amount of three (3) times their regular - Page 3 - straight time hourly rate of all hours worked on such holiday. 7.5 For the purpose of this Article: holiday means a day on which a holiday falls or the day that is allowed in lieu thereof when the employee is required to work on the day of the holiday. I’ Both the Union and the Employer submitted that the relevant provisions of the Collective Agreement are clear and unambiguous. The Union submitted that Articles 7.1 and 7.4 require the Employer to pay triple the regular rate for the 5 hours worked by the Grievor on the paid holiday in addition to being paid. for the evening shift on November 1 lth, 1993, which the Grievor was given off. In the alternative, the Union relied upon past practise and estoppel. The Employer submitted that the Grievor was entitled only to be given the paid holiday off under Article 7.1. The Employer argued that it would be a pyramiding of benefits for the Grievor to be paid in addition a premium for the hours worked on November 11 th, 1993 and contrary to the arbitral jurisprudence. The Employer submitted that the definition of “holiday” in Article 7.5 bolstered its argument. The Employer submitted that where an employee was paid for a lieu day, he or she was not “required to work on a paid holiday”, the lieu day becoming the paid holiday by virtue of the definition of “holiday” under Article 7.5. FINDINGS: In the Board’s view, the relevant provisions of the Collective Agreement are clear and unambiguous. Under Article 7.1, the Grievor was - Page 4 - entitled to be paid for the Remembrance Day holiday. The Grievor was required to and did perform 5 hours of work on Remembrance Day, a paid holiday, and accordingly was entitled under Article 7.4 to receive payment in the amount of two times his regular straight time for those 5 hours ( in addition to the straight time for those 5 hours which he has already received). In our view, Article 7.5 has no application because the Grievor was not given a day off in lieu of the Remembrance Day holiday. He was actually given off the evening shift on November 11,1993. In our view, providing an employee a paid holiday under Article 7.1 and a premium for hours worked under Article 7.4 is not a pyramiding of benefits or, if so, is nevertheless authorized by this Collective Agreement. Article 7.3 provides that where a paid holiday falls on a Saturday or a Sunday (i.e. a non-working day), employees will be granted a day in lieu of such paid holiday. This suggests that the purpose of holiday pay in this Collective Agreement is as part of the general wage package rather than indemnity for wages lost. The purpose of the premium rate under Article 7.4 is different - its purpose is clearly to compensate employees required to work on holidays which most employees would prefer to have as their own leisure time. We note as well that there is no express prohibition in the Collective Agreement against the pyramiding of benefits. As we find the language of Article 7 to be clear and unambiguous, we find it unnecessary to consider past practise or estoppel. In the result, we allow the grievance and find the Grievor to be - Page 5 - entitled to be compensated under Article 7.4 for the 5 hours the Grievor worked on November 1 lth, 1993 at two times his regular straight time. We shall remain seized in the event there is any difficulty in implementing this award. DATED: at Toronto, this 3rd day of May, 1995. Nancy L. Backhouse Vice-Chairperson -L Employer Member