HomeMy WebLinkAbout2011-0750.Pletikos.13-09-03 DecisionCrown Employees
Grievance Settlement
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Commission de
règlement des griefs
des employés de la
Couronne
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Toronto (Ontario) M5G 1Z8
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GSB#2011-0750
UNION#2010-0586-0005
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Pletikos) Union
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The Crown in Right of Ontario
(Ministry of Community and Social Services) Employer
BEFORE Nimal Dissanayake Vice-Chair
FOR THE UNION Alison Nielsen-Jones
Ontario Public Service Employees Union
Grievance Officer
FOR THE EMPLOYER Peter Dailleboust
Ministry of Government Services
Legal Services Branch
Counsel
HEARING August 28, 2013
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Decision
[1] A grievance dated May 20, 2010 filed by Mr. Frank Pletikos, (“grievor”) is before the
Board. The statement of grievance reads
I have been subjected to unfair practices as a result of unequal working conditions
because of arrangements between certain employees and certain managers which
allows them to work less hours than I have to in order to receive full pay and qualify
for CWW days.
This grievance is made in accordance with Article 2.1 of the Collective Agreement and
any other applicable article.
By way of remedy the grievor seeks monetary compensation or paid time off.
[2] This decision determines a motion by the employer that the grievance should be
summarily dismissed on the basis that the grievance and particulars filed do not establish
a prima facie case.
[3] The particulars filed by the union have been edited to delete information irrelevant to the
instant grievance. The relevant particulars relied upon by the parties in arguing this
motion are as follows:
1. The Grievor is employed as a Program Support Clerk (PSC) and has been in
this position at all times material to his grievances.
2. In November 2003, the Employer circulated a memorandum entitled
“Management of Staff Issues”, which stated… “over the past several months there
have been a number of issues that we have to address relating to lateness, staff not
adhering to their CWW [compressed work week] work hours, staff taking
unscheduled CWW days during month end …”
3. Prior to 2006, a card hold entry system was installed by the Employer
(allowing the Employer to record the date and time of entry by staff members).
4. On May 27, 2008, Mr. Hennessy, while walking around the office, stated,
“People are supposed to be in at 8:15 a.m.”
5. On September 23, 2008, Mr. Hennessy stated, in an offsite team meeting,
that management would no longer be as forgiving as it had been in the past of
those staff members who did not respect their hours of work.
6. In October 2008, at an off-site training, ODSP manager Mr. Afzal Ahmed
stated that he did not care when people came to work.
7. On February 4, 2009, a “Team 3 Unit Meeting” was held and the issue of
“Work Hours” was discussed. The “Action/Outcome” is listed as “Everyone
should be working their agreed upon hours and should be informing a live person
if not your manager of illness, late arrival, earlier leave and time made up.”
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8. Management has been unfairly exercising its management rights by requiring
some employees to make up time missed (due to absence or lateness) while not
requiring other employees to make up missed time.
9. In Fall 2010, the Grievor raised issues with Mr. Hennessy that the Employer
has been allowing staff members to work CWW hours that are not listed as
options in the employer’s “Request to Participate in Compressed Work Week or
Flexible Hours” document.
10. On August 31, 2011, the Grievor again raised issues that the Employer has
been allowing staff members to work CWW hours that are not listed as options in
the Employer’s “Request to participate in Compressed Work Week or Flexible
Hours” document, by email to Judy MacLeod, ODSP Manager. Ms. Macleod
responded that she would take this information under advisement.
11. On December 5, 2011, the Grievor advised Mr. Hennessy, by email, that
employees were taking longer lunches than allowed. This negatively affected the
Grievor, who was scheduled to cover the Reception duty and, due to people
returning late to work, was required to perform the Reception duty longer than
scheduled.
12. On January 16, 2013, during a Program Support Clerk meeting, Mr.
Hennessy told PSCs to come in “at your start time”.
13. The Union takes the position that the Employer has abused its management
rights by requiring that the Grievor often provide additional coverage (beyond
what he is scheduled to provide) as a result of co-workers not returning to the
duty as scheduled (after breaks and lunch periods) and/or as a result of co-workers
arriving at work late.
14. The Union takes the position that the Employer has abused its management
rights and established policies and procedures by allowing some employees to
arrive and leave work at times not corresponding to the CWW agreements, while
requiring the Grievor to use one and a half (1.5) hours vacation time to take his
mother to the hospital.
[4] Both parties agreed that in determining a motion of this nature the test is that set out in
Re Couture, 2008-3329 (Dissanayake) at para.12 that “… the Board is required to
determine whether the facts asserted, if accepted as true, are capable of substantiating
the violation alleged”. Therefore, is disposing of this motion, the Board must determine
whether the facts set out in the union’s particulars, if accepted as true, are capable of
substantiating the allegation that the employer contravened articles 2 and or 10.1 of the
collective agreement, as asserted by the union.
[5] Article 2 reads:
2.1 For the purpose of this Central Collective Agreement and any other Collective
Agreement to which the parties are subject, the right and authority to manage the
business and direct the workforce, including the right to hire and layoff, appoint, assign
and direct employees; evaluate and classify positions; discipline, dismiss or suspend
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employees for just cause, determine organization, staffing levels, work methods, the
location of the workplace, the kinds and locations or equipment, the merit system,
training and development and appraisal; and make reasonable rules and regulations;
shall be vested exclusively in the Employer. It is agreed that these rights are subject
only to the provisions of this Central Collective Agreement and any other Collective
Agreement to which the parties are subject.
Article 10 states as follows, followed by a model compressed work week (CWW)
agreement:
It is understood that other arrangements regarding hours of work and overtime may be
entered into between the parties on a local or ministry level with respect to variable work
days or variable work weeks.
[6] The thrust of the grievance is that while the employer has in place policies requiring that
its employees must work hours in full scheduled as per CWW agreements it has entered
into, and while it has made statements to the effect that it expects employees to work
scheduled hours punctually and regularly, it has failed to enforce the hours of work
against some employees who do not work all of the scheduled hours for which they are
paid. In other words, while some employees, including the grievor, work their
scheduled hours in full, the employer allows others to get away with late reports and
extended breaks. It is alleged that this negatively impacts on those employees who abide
by the rules. The grievor asserts that the employer has allowed this to continue despite
the fact that the grievor had raised his concerns about the inequity.
[7] The employer, relying on Board case law, submits that in order to assert a violation of
article 2, the union must establish that the employer action resulted in the denial or
abridgement of a right the grievor had under the collective agreement. Counsel submits
that the particulars, if accepted as true and provable, are not capable of substantiating
that any right the grievor had under the collective agreement was denied to him.
[8] Numerous decisions of the Board have held that there can be no standalone claim
alleging a violation of article 2. (See, Re Dobroft et al, 2003-0905 etc. (Dissanayake)
and the authorities cited therein.) For example, in Anthony et al, 1999-1977 etc.
(Abramsky), among other claims, three individual grievors alleged that two other
employees with substantially less seniority had been unfairly granted merit increases,
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which resulted in their being paid the same as the grievors. The employer moved to
have these claims dismissed, asserting that the employer’s actions did not discriminate
against the grievors and that they had not been detrimentally impacted by the
Employer’s actions. The union claimed that the Board had jurisdiction to determine
whether the administration of the pay provisions of the collective agreement was done in
a fair and equitable manner, free from arbitrariness and bad faith. It claimed that the
salary treatment of the two favoured individuals created an invidious situation in which
employees with substantially different years of experience were being paid the same
amount for the work in question.
In dismissing the grievances, the Board states as follows at pp. 7-8:
It is easy to appreciate the grievors’ frustration and their feelings of unfairness in relation
to the April 18, 2000 memorandum of agreement. The terms of that agreement, in light
of the number of steps in their former pay scale, combined with the impact of the Social
Contract Act, created, as the Union asserts, “significant anomalies”. It is also easy to
appreciate their frustration in regard to the merit increases received by Ms. McCourt and
Mr. Hughes. Unfortunately, despite the sympathy I feel for the grievors, I find that this is
not a case over which the Board has jurisdiction.
The problem is that the Union has not alleged any unfairness or discrimination in regard
to the Employer’s actions in relation to the grievors. It has alleged improper action in
relation to two other individuals – Mr. Hughes and Ms. McCourt – which is asserts
resulted in an inequitable situation. But for the Board to have jurisdiction, an inequitable
situation is not enough …
The Board’s jurisdiction depends on an allegation that the Employer’s action interfered
with the grievors’ rights under the collective agreement. In this case, those elements are
missing. There is no allegation that the Employer improperly denied the grievors a merit
pay increase – only that the Employer improperly granted it to Hughes and McCourt.
Nor is there an allegation that the Employer’s actions impacted any rights of the grievors’
under the collective agreement.
[9] The union’s primary argument in response to the motion is to the effect that the grievor
is entitled to grieve a violation of the management rights clause without also asserting
that the exercise of the management rights interfered with a right he had under the
collective agreement. It was submitted that the grievor was entitled to grieve an
inequitable or unreasonable exercise of management rights even where it had not
affected the grievor’s collective agreement rights. It was submitted that decisions such
as Re Anthony (supra) were wrongly decided. Ms. Nielson-Jones relied on section 7(3)
of the Crown Employees Collective Bargaining Act, which provides that “Every
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collective agreement … shall be deemed to provide for the final and binding settlement
by arbitration by the Grievance Settlement Board … of all differences between the
parties, arising from the interpretation, application, administration or alleged violation of
the agreement …” She argued that the grievor’s allegation that the employer was not
complying with CWW agreements by allowing some employees to work hours less than
those scheduled arises directly out of the collective agreement, since the CWW
agreements are entered into pursuant to article 10.1. The grievor has no other forum to
have his concern addressed than this Board, and s.7(3) of the Act entitles him to have the
matter arbitrated by the Board. She pointed out that s. 7(3) uses the words “all
differences”. Thus, a difference relating to any article must be arbitrable before the
Board. Citing case law, she submitted that this Board respects the rules of natural
justice, which includes “the right to be heard”. Refusal by the Board to hear and
determine the grievance the grievor has would be a violation of that rule. On the basis of
the foregoing reasoning, it was submitted that declining to hear a grievance alleging an
unreasonable exercise of management rights under article 2 would be a violation of
statutory law, as well as the rules of natural justice.
[10] The union further submitted that in any event a grievance alleging that the employer has
exercised its rights under article 2 in a manner that was arbitrary, discriminatory, or in
bad faith is arbitrable. It was submitted that the unequal and differential treatment of
employees in relation to enforcement of work hours was arbitrary and in bad faith.
[11] In the alternative, the union submitted that if the Board refuses to depart from its
insistence that there must be “a hook” to a substantial right under the collective
agreement in order to allege a violation of article 2, the instant grievance meets that
condition. It was submitted that while article 10.1 gives the employer the discretion to
decide whether or not to enter into CWW agreements, once such an agreement is entered
into, the employer is bound by its terms. The particulars establish that the employer did
not comply with CWW agreements it had entered into, because it allowed certain
employees to work hours inconsistent with the hours set out in the agreements.
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[12] The Board has considered the submissions of the union. The fundamental flaw with all
of the arguments advanced is that for any of them to succeed, the grievor must be able to
establish that a right that he had under the collective agreement was interfered with as a
result of the employer’s actions. As applied to an individual grievance, when section
7(3) of the Crown Employees Collective Bargaining Act refers to “all differences”
arising from the collective agreement, it envisages a difference between the employer
and the grieving employee. The difference, to be arbitrable, must be about a right the
grieving individual has under the collective agreement. If the difference is about a right
some other individual has under the collective agreement it is not arbitrable.
[13] The same reasoning applies to the union’s reliance on the “right to be heard” under rules
of natural justice. The rules of natural justice requires the Board to hear an individual’s
claim, only if it relates to a right that individual has, not a right enjoyed by someone else.
[14] While the union submitted that the employer exercised its management rights arbitrarily
and in bad faith, the particulars do not provide a basis for such a finding. There is no
allegation in the particulars that the grievor was singled out for differential treatment, or
that managers were favouring employees with whom they had friendships, social or
family relationships. There is no allegation of discrimination on the basis of a prohibited
ground. Rather, the particulars, if true, would show that the employer was lax in
monitoring and enforcing the scheduled work hours, punctuality and breaks. While
some employees followed the rules anyway others took advantage, reporting late and
taking long breaks with no sanction by the employer. There is no suggestion in the
particulars that the employer’s casual and lax attitude, and its failure to ensure that all
employees comply with their hours of work resulted in the grievor being denied any
right he was entitled to. He was not in any way the victim of arbitrary or bad faith
conduct on the part of the employer.
[15] It was submitted by the employer that this is a “me too” grievance, where the grievor is
not claiming that a right he had under the collective agreement was denied, but claims
that others received rights above and beyond their entitlement under the collective
agreement. Reliance was placed on Re Anthony (supra) and Re May, 2001-1151
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(Abramsky). The Board agrees. The particulars do not suggest that any right of the
grievor has been affected. Rather, the complaint is that some other employees are being
paid for time not worked. That is not a matter arbitrable through a grievance by the
grievor.
[16] The grievor has alleged that the employer’s casual attitude towards punctuality and
hours of work has impacted adversely on him. Thus it is alleged that on December 5,
2011 the grievor was required to perform reception duty longer than initially scheduled
as a result of others returning to work late after lunch break. A general assertion is made
that the grievor was often required to provide coverage at reception, beyond what he is
scheduled to provide, as a result of others not returning from lunch and breaks on time.
However, the material before the Board establishes, and the union conceded, that
reception duty is part of the grievor’s position, and that he may be assigned that duty as
the employer deems appropriate. Therefore, no right of the grievor was violated.
[17] The particulars also allege that the grievor was subjected to differential treatment in that
while some employees were allowed to arrive and leave work at times not corresponding
to their CWW agreements, the grievor was required to use 1.5 hours of vacation time to
take his mother to the hospital, which according to the employer occurred some 10 years
earlier. However, again these particulars do not show that the grievor was denied any
right he had. At most, it would suggest that an inequity or unreasonableness occurred.
Indeed, the union conceded that the grievor “had no problem” about the requirement to
use vacation time because the employer was entitled to so require. His problem was
about the employer not enforcing the rules similarly against others. While the grievor’s
concerns about inconsistent enforcement of employer rights is understandable, and if
true legitimate, for reasons set out earlier in this decision, unreasonableness of the
employer’s conduct by itself is not something that may be addressed through the vehicle
of an individual grievance, in the absence of evidence that such conduct affected a right
of the grievor.
[18] The union’s alternate argument is that the alleged violation of article 2 is accompanied
by “a hook” to a violation of article 10.1. However, the particulars do not substantiate
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that position. The union conceded that there has been no violation of any term of the
grievor’s own CWW agreement. The particulars do suggest that the employer may have
contravened CWW agreements entered into in relation to some other employees, by
allowing them to work hours inconsistent with those set out therein. However, the
difficulty is, as explained above, the grievor has no rights under those CWW
agreements, and therefore is not entitled to enforce any right thereunder.
[19] Board understands and appreciates the grievor’s concerns. If the particulars are true,
certain employees are taking advantage and abusing the system. They are getting paid at
the taxpayers’ expense for time not worked. The employer is paying lip service to the
rules and policies, but not taking steps to enforce them. It is not at all difficult to see
how those who abide by the rules such as the grievor, would find it troubling and
frustrating that others are abusing the system and getting away with it. This decision is
not to be read as an endorsement of that state of affairs. However, for reasons set out in
the Board’s jurisprudence, not all work related concerns, legitimate they may be, are not
remediable under the grievance and arbitration procedure before the Board. If the
employer is failing to comply with CWW agreements, the union, as a party to those
agreements, may be able to pursue a union grievance in that regard. However, the
grievor has no rights under those CWW agreements, and has no right to grieve their
violation. The “hook” needed to provide standing to the grievor must be a right that he
himself has under the collective agreement, not a right someone else has.
[20] For all of those reasons, the Board concludes that the particulars relied upon by the
union do not disclose a prima facie case that the employer has violated any right the
grievor has under the collective agreement. Therefore, the employer’s motion is upheld.
The grievance is inarbitarable and is hereby dismissed.
Dated at Toronto, Ontario this 3rd day of September 2013
Nimal Dissanayake, Vice-Chair