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HomeMy WebLinkAboutDesbiens 03-06-23 IN THE MATTER OF AN ARBITRATION BETWEEN: TIMISKAMING CHILD AND FAMILY SERVICES AND ONTARIO PUBLIC SERVICE EMPLOYEES UNION. LOCAL 665 AND IN THE MATTER OF THE GRIEVANCE OF G. DESBIENS SOLE ARBITRATOR: MAUREEN K. SALT MAN APPEARANCES FOR THE EMPLOYER: BRIAN D. MULRONEY FOR THE UNION: WILL PRESLEY £0"d o~- £Pl.PS,-o\1o Wd 6p:p0 £00Z-9Z-Nnr AWARD The grievance claims that the Grievor, Gerry Desbiens, wae Improperly required to take time off Iistat time" (or time off in lieu of statutory, or paid. holidays) on April 17, 2002. The Grievor, who Is a Union Steward. has been employed as a full- time Residential Youth Worker at the Plneger Youth Centre (lithe Centre") since 1993. The Centre, which is a 12-bed secure custody facility for young offenders in Kirkland Lake. is staffed by 10 full-time and 15 (or so) casual Residential Youth Workers. Due to the nature of the facility. there are statutory staffing requirements. In order to fulfill these requirements, which prescribe a ratio of one staff member to five residents. three Residential Youth Workers are on duty between 6:45 a.m. and 10:45 p.m. and two. between 10:45 p.m. and 6:45 8.m. Residential Youth Workers are scheduled to rotate between two 12.hour shifts, 6:45 a.m, to 6:45 p.m. and 6:45 p.m. to 6:45 a.m. In early April, 2002, following a 15~month absence during which he was In receipt of Workplace Safety and Insurance Board (MWSIB") benefits, the Grievor gave notice of his Intention to return to work. In accordance with the Employer's usual policy when an employee returns to work following an extended absence, the Grlevor was scheduled to work four IItralning" shifts, comprised of two day shifts and two night shifts, before being reintegrated into the regular 1>ø"d Wd 61>=1>13 ~øøZ-9Z-Nnr 2 schedule. The training shifts were scheduled for April 7th, eth, 12th and 13th, subsequent to which the Grievor was to return to regular duties on April 14th. Thereafter, he was scheduled to work on his regular rotation on April 17th and 18th, as well as five other shifts in the month of April. During the Grlevor's extended leave of absence, he accumulated credit for 10 paid holidays per year at the rate of eight hours per day. The Grievor testified that on April 6th, he experienced a "marital crisis" and left the family home. As he was scheduled to return to work the following day, he telephoned his Team Leader, Dan England, and informed him that he needed to reschedule his training shifts and that he was going to request some time off. However, the Grievor did not tell Mr. England how much time off he would be requesting. In any event, as Mr. England did not have the authority to approve such a request, he instructed the Grievor to call back the next day to discuss the matter with his Supervisor. James King. In accordance with this instruction, the Grievor contacted Mr. King at around 11 :00 a.m. on April 7th, The Griever testified in examinatlon-In-chlef that he told Mr. King that he had a personal issue to deal with and wished to use either "his stat timeD or "stat time" (depending on whether one prefers the Grievor's evidence in examination-in-chief or in cross-examination). However, the Grievor categorically denied that he had asked to use a/l of his stat time. He also denied that he had indicated how much time he wanted off, as Mr. King did £;;Ø-d Wd 6~:~Ø ~ØØ~-9~-Nnr 3 not want to discuss the matter because neither of them knew how much stat time the Grievor had to his credit. Accordingly, Mr. King offered to contact the Human Resources Manager, Kathy Taillon, to Inquire about the matter. On the Grievor's version of events, when he called Mr. King later In the day, he was advised that he had accumulated 82 hours of stat time. For her part, Ms. Taillon testified that she had advised the Grlevor of the amount of stat time he had accumulated when he called to notify her of his intention to return to work. This conversation, in which she discussed stat time, vacation time and sick time accruals. took place "right after the Easter weekend" about a week before the Grlevor was scheduled to return to work. Although the Grlevor's evidence was not entirely clear, he acknowledged that he had had a conversation with Ms. Taillon regarding the use of stat time, among other matters. However, he appeared to dispute she had advised him of the amount of stat time he had available. In this regard, the Grlevor testified that Ms. Taillon told him that he had "this amount" of stat time, vacation time and sick time, but was unable to advise him of the exact amount of stat time to his credit, a8 he had only an expected return to work date and could have been off for a longer period of time. Moreover, although the Grlevor acknowledged that he was familiar with the provisions of the collective agreement regarding paid holiday entitlement, he maintained that he did not know the amount of stat time he had accrued. However, he Uguessed" that he had accumulated "Just over" 60 hours, and it was 90"d Wd 0£:~0 £00Z-9Z-Nnr 4 not until Mr. King confirmed his entitlement on April 7th that he became aware that he had 82 hours to his credit. On the Grievor's version of events, when he called back later in the day, Mr. King offered him the option of taking two weeks off by using all of his stat time and two hours of vacation credits. However, the Grievor testified that he told Mr. King that he needed only one week off. On the Grlevor's evidence, Mr. King agreed that he could take one week off, and instructed him to come in the following Thursday to rebook his training shifts. As a result of this exchange, the Grievor understood that he had been given approval for one week off and that he was expected to attend at work on April 11 th to rebook his training shifts. On Mr. King's version. during the initial conversation. the Grievor asked to use all of his accumulated stat time. Mr. King testified he told the Grievor that he needed approval from Ms. Taillon and asked him to call back before 4:00 o'clock to find out whether his leave had been approved. Mr. King then contacted Ms. Taillon and advised her that the Grievor had asked to use all of his stat time prior to returning to work. Ms. Taillon indicated that if Robert Guild, who was replacing the Grievor during his WSIB leave of absence, would agree to an extension of his temporary contract, she would approve the leave. However, in order to be able to offer Mr. Guild an extension of his contract! Mr. King needed to know how much stat time the Grievor had accumulated. Ms. Taillon, therefore, advised him that the Grievor had accumulated 82 hours and tØ"d w~ ~"6. £..z_a_Nnr! 5 that he could take 81>( shifts off, leaving 10 hours of stat time in his bank, or seven shifts off, by adding two hours of vacation credits. After arranging with Mr. Guild to extend his contract to cover 72 hours (or six additional 12-hour shifts), Mr. King advised the Grlevor on April 7th that his request for leave had been approved, and that he had made arrangements with Mr. Guild to cover his shifts. He also offered the Grlevor the option of taking off another shift by adding two hours of vacation credits. It was at this time, according to Mr. King I that the Grlevor indicated that he needed only one week off. Given what he considered to be a change in the Grlevors request for time off, Mr. King told the Grievor that he would have to discuss the matter with Ms. Taillon and asked him to call back the next day (April 8th). Mr. King then proceeded to advise Ms. Taillon of the change in the Grievor's request for time off (from all of his accumulated stat time to one week of accumulated stat time). However, as arrangements had been made to cover six of the Grlevor's shifts, the decision was made to hold the Grlevor to his original request to utilise all of his stat time. Although the decision was made by Ms. Taillon, it was approved by the Executive Director, Patrick Lake. In fact, Mr. Lake acknowledged that, prior to sending written confirmation of the extension of Mr. Guild's contract, he was aware of the change in the Grievor's request. Nevertheless, he testified that he felt bound by the oral agreement with Mr. Guild. He also testified that he considered It unreasonable to put the Employer in the position where it might be liable for the cancellation of Mr. Guild's shifts and that if someone had to be Zø"d w~ 91=613 £ØøZ-LZ-Nnr 6 inconvenienced, it should be the Grievor. who had altered his request, rather than Mr. Guild, who had agreed to take on additional shifts on short notice. He, therefore, approved Ms. Taillon's decision to hold the Grievor to his original request to utilise all of his stat time. Although an attempt was made to contact the Grievor, he was not at home between April 8th and 10th to receive messages. Accordingly, he did not find out about the decision to hold him to his original request until he attended at work on April 11 th to rebock his training shifts. At that time, the Grievor spoke with the Supervisor on duty, Mark Williams, who advised him that he had been scheduled off for two weeks. According to the Grievor, this was the first he had heard that he was taking two weeks off. However, as the matter was not within Mr. Williams' purview, he contacted Mr. King. The Grievor testified that he received a telephone call from Mr. King the following day. at which time Mr. King apprised him of the decision to hold him to his original request. When the Grievor inquired as to the nature of that request. he was told that he had asked to use all of his stat time. However, the Grlevor maintained that he had asked for only one week off and that the Employer was "forcing" him to take off more time than he had requested. He also reminded Mr. King that on April 7th. he had agreed that the Grievor could take one week off (comprised of five 12-hour shifts). However, Mr. King disputed that the Grlevor had asked for one week off. Although he also attempted to S0"d Wd 1~:~0 £00G-9¿-Nnr 7 justify the decision to require the Grlevor to use all of his stat time on the basis that the Employer believed it was meeting the Grievor's original request and that the Employer had made a financial commitment by confirming additional shifts with Mr. Guild to cover the Grievor's absence, the Grievor did not accept either Justification. In the end result, the Grievor was required to take off six shifts (or 72 hours of stat time), rather than five shifts, which the Grievor claimed that he had requested and the Employer had approved. However, he was not required to take off seven shifts, which would have necessitated the use of two hours of vacation time. In any event, although Mr. King offered to arrange a meeting with Ms. Taillon to discuss the matter, it Is common ground that this meeting never took place. Finally, the evidence indicates that, due to problems with providing coverage for leaves of absence at the Centre, a policy establishIng a procedure for processing leaves was promulgated. This policy was Introduced at a labour- management meeting on October 15, 2001. By agreement of the parties, the prescribed notice period for requesting one day of stat time was changed from 24 to 36 hours. That change, in the context of all of the notice periods, is to the following effect: Request for Leave Process Regular Request for non-elck leave [excluding Christmas Season, and the months of July and August] The person will request the leave in writing, if possible, to a manager [not a Team Leader) for the prescribed notice period: 6Ø"d Wd 1~:~Ø £ØØ~-9~-Nnr 8 36 1 day/shift - ;w. hours notice. 2 days/shifts off - 48 hours notice. 3 days/shifts off - 72 hours notice. more than 3 days/shifts - 7 days notice. Shorter notice periods will be considered in the case of crisis or personal emergency only. For his part, the Grlevor acknowledged that he was aware that the prescribed notice period for requesting one day of stat time had been changed to 36 hours. Finally, Ms. Taillon testified that although the Grievor's request did not meet the prescribed notice requirements, an effort was made to accommodate his request. It is unclear from the evidence whether Ms. Taillon considered the Grievor's request to come within the emergency exception to the prescribed notice periods. Decision The facts indicate that following an extended leave of absence during which he was In receipt of WSIB benefits, the Grievor gave notice of his intention to return to work on April 7th, In accordance with the Employer's usual practice, the Griever was required te work four training shifts before being reintegrated into the regular schedule. These shifts were scheduled for April 7th, 8th, 12th and 13th, 1211 - d Wd ¿£:~12I £12I12I¿-9¿-Nnr 9 On April 6th, the Grievor experienced what he described as a "marItal crisis" and left the family home. As he was scheduled to return to work the following day. the Grievor contacted his Team Leader, Mr. England, and Informed him that he needed to reschedule his training shifts and that he was going to request some time off. It would appear that the Grlevor gave Mr. England no Indication of the amount of time off he required. In any event, as Mr. England did not have the authority to deal with his request, he referred the Grievor to his Supervisor, Mr. King. The evidence indicates that at about 11 :00 a.m. on April 7th, the Grievor contacted Mr. King. At this point, the evidence diverges. Firstly, the Grievor testified that he told Mr. King that he had a personal Issue to deal with u añd -šsKedufo- -use stafflmÊt or hìs stat-time, .whereas-Mr: -Klñg te~stified -that" the Grlevor asked to use all of his stat time. Secondly, although he claimed not to have known the amount of stat time he had accumulated (which he assumed to be just over 60 hours), the Human Resources Manager, Ms. Taillon, testified that she had expressly advised the Grlevor, within a week of April 7th, of the amount of stat time he had accumulated I which the Grievor appeared to dispute. But even if the Grievor was aware of the amount of stat time to his credit, this does not establish that he had asked to utilise all of his stat time. Indeed, the Grievor testified that he had asked to use stat time or his stat time, but vehemently denied that he had asked to use all of his stat time. Accordingly, 11 - d Wd ~£:~0 £00~-9~-Nnr 10 while I accept that this was Mr. King's honest belief, I find that the evidence was not sufficiently clear to establish that the Grlevor had asked to use 8/1 of his stat time. Moreover, the matter was clarified later in the day when the Griever asked to use one week of stat time, and while the Employer considered this to be a change In the Griever's request, as the evidence does not establish that the Grievor asked in the initial conversation to use all of his stat time, the request to use one week of stat time cannot be viewed as a change. Furthermore, although it may be debatable on the facts whether "one week" was intended to be a reference to four shifts or five shifts, it Is clear that one week was less than all of the Grievor's stat time, Accordingly, as the requirement to take off six shifts was based on the understanding that the Grievor had asked to utllise all of his stat time, I find that the Grievor could not be compelled to utillse his full paid holiday entitlement. Moreover, as the evidence does not support the conclusion that the Grlevor asked to use all of his stat time, I find that there was no representation upon which to base an estoppel. In the result, the grievance is allowed. I, therefore, direct the Employer to credit the Grievor with 12 hours of stat time and will remain seised Z-¡: "d Wd z£:~ø ~ØØZ-9Z-Nn£ 11 for purposes of implementation. DATED AT TORONTO, this 26th day of June, 2003. Sole Arbitrator £ t . d Wd £~:~0 £00Z-9Z-Nnr