HomeMy WebLinkAboutPhelan 13-01-25IN THE MATTER OF AN ARBITRATION brought pursuant to the Ontario Labour Relations
Act, 1995, as amended
(Grievance #2012-0431-0011)
BETWEEN:
PROVIDENCE CARE (MHS)
(the “employer”)
- and -
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
(the “union”)
AWARD
Sole Arbitrator: Marilyn A. Nairn
Hearing held: January 24, 2013
(Kingston, Ontario)
APPEARANCES
For the union: Peggy Smith
For the employer: Laura Harpell
1
AWARD
1. The parties agreed to utilize an expedited process to have this matter determined. The
facts were not in dispute. The parties were also content for this award to provide only brief
reasons, if any. There was no dispute as to my jurisdiction to hear and determine the matter, and
to utilize this process in doing so.
2. The grievor, Dan Phelan, was scheduled to work on the day shift on each of Saturday,
March 31, Sunday, April 1, and Monday, April 2, 2012. He exchanged shifts with a co-worker,
such that the co-worker agreed to work the grievor’s day shifts on the Saturday and Sunday,
while the grievor agreed to work the co-worker’s evening shifts on those two days. Exchanging
shifts requires the employer’s approval and Article 20.10 of the collective agreement provides
that any change to the posted time schedule initiated by the employee shall not result in
overtime. The grievor worked the evening shift on those two days. The evening shift ended at
9:00pm. His day shift on the Monday was scheduled to start at 8:00am.
3. The grievor took the position that he should have been allowed to start work on Monday,
April 2, 2012 at 9:00am instead of 8:00am. He asserted that the collective agreement required
that he be provided with 12 hours off between his shifts. Article 20.12 of the collective
agreement provides, in part:
Time Off Between Scheduled Shifts
Every reasonable effort shall be made to avoid scheduling the commencement of a shift
within twelve (12) hours of the completion of the employee’s previous shift…
4. This provision applies to scheduled shifts. The grievor’s scheduled shift on the Sunday
was the day shift. His next scheduled shift was the day shift on Monday. There were more than
12 hours between those scheduled shifts. It was only pursuant to his agreement with his co-
worker that he exchanged his shift. That does not result in any change to his scheduled shift.
5. Alternatively, even assuming that the reference to “scheduling” applies only to that shift
that “commences” within twelve hours of the previous shift, the Monday shift was scheduled
2
prior to the grievor’s shift exchange. The employer made every reasonable effort, as it did
originally schedule the Sunday and Monday shifts with more than twelve hours between them,
and it was only by acceding to the request by the grievor and his co-worker that his shift was
changed.
6. There is no basis in the collective agreement for the grievor’s claim that he ought to have
been allowed to start work later than his scheduled start time on that Monday. Having regard to
the above, this grievance is hereby dismissed.
Dated at Toronto, Ontario this 25th day of January, 2013.
________________________________________________
Marilyn A. Nairn, Arbitrator.