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HomeMy WebLinkAboutRedden 06-15-2000 IN THE MATTER OF AN ARBITRATION BETWEEN P ARTICIP ATION PROJECTS - SUDBURY AND DISTRICT (the "Employer") - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION, AND ITS LOCAL 668 (the "Union") AND IN THE MATTER OF A GRIEVANCE OF MS LEONA REDDEN (the "Grievor") BEFORE : C. Gordon Simmons, Arbitrator APPEARANCES ON BEHALF OF THE EMPLOYER: Mr. K.R. Valin, Consultant Mrs. Margaret R. Borley, Executive Director APPEARANCES ON BEHALF OF THE UNION: Mr. Jim Gilbert, Grievance Officer Mr. Peter Slee, Staff Representative Ms Leona Redden, Grievor - ~-- .:--". '.'" c, A hearing into this matter was held in Sudbury, Ontario on November 17, 1999 and May 31,2000. - 2- The grievor seeks payment for two one-hour bookings in the Outreach program that were cancelled with less than three days notice on October 24 and 25, 1998. The article in dispute is 27.07 e) (ill) which reads: Where an employee in Outreach receives less than three (3) days notice of cancelled booking from the Employer such employee will be paid for the booking as if worked. -- The facts are not in dispute. The grievor received less than three days notice from the employer that one of the clients in the program (L.W.) cancelled her/Ìlis sessions schedlÙed to take place at her/his home for 9-10:00 a.m. Saturday, October 24,1998 and 9-10:00 a.m. Sunday, October 25,1998 without giving three days notice. The employer re-deployed the grievor to its facility on Haig Street for the hours in question. She received payment for the two hours but claims she ought to have received payment for the cancelled assignments and by being deployed to another location she is entitled to an extra two hours pay. The background leading up to this dispute is as follows. The employer carries out three programs. There is the Day Centre program; the Accommodations program which involves care at group homes; and the Outreach program. It is the Outreach program with which we are concerned. In this program the employer provides services to physically disabled citizens in the community. The program offers opportunities and support systems to those physically handicapped in assisting them to live independently in the community. Clients of the Outreach program live in their own h,omes but need assistance to support their daily living requirements. For example, a spouse may need - 3- to leave home to go to work and the client needs assistance in such daily requirements as bathing, eating, and other basic functions the normally fit person takes for gTanted. The employees in the Outreach progTanl are all casual part-time employees with the exception of one position. The grievor's classification is a casual part-time Independent Living Assistant I (ILA I). She has been employed since December 1992. The employer arranges service agTeements with various clients and has the casual part- time employee, like the grievor,go from home to home to render her services. The time required for each service is scheduled in blocks of fifteen minutes. Should a client require a half hour then there are two blocks scheduled for that particular client. Schedules are made up four weeks in advance. There was some discussion between the parties as to when the employees are notified of these schedules but it is agTeed that nothing turns on this matter. The grievor's schedule for October 24 and 25 was as follows: 8 a.m. - 9 a.m. 9 a.m. - 10 a.m. 10 a.m. - 11:30 a.m. 11:30 a.m. - 12:30 p.m. with (C.J.) with (L.W.) with (D.Y.) with (F.D.) As stated earlier, it was the L.W. schedule that was cancelled for both days and the grievor was re-deployed to Haig Street for the hours in question. In addition to art. 27.07 e) (ill) above two other paragTaphs in the article are also relevant and read: (i) The Employer will endeavour to develop a cancellation procedure which will result in maximum possible notice of cancelled bookeepings to Outreach workers. -- (ii) When an Outreach part-time employee receives three (3) days or more of notice of cancelled booking from the Employer the employee may cancel the remaining booking in that shift. - 4- The Evidence This is the first time art. 27.07 e) (i), (ii) and (iii) has appeared in the collective agreement. The background leading up to its inclusion into the collective agreement was revealed during the course of Mr. Slee's and Mrs. Borley's evidence. Mr. Slee is the staff representative for the union and was principal spokesperson for the bargaining committee in the last. round of negotiations. Mrs. Borley was a member of the management bargaining team. Mr. Slee informed me that the practice followed prior to the inclusion of art. 27.07 e) was an employee such as the grievor would be assigned certain bookings for a particular day. Sometimes a client would inform the employer that he/she did not need the services of an employee as scheduled. This notice could come at any time prior to the scheduled time for the services to be perfonned. In those instances, the employee would be informed and would not be entitled to any compensation. The only time compensation would be paid would be in a situation where the employee attended at the home of the client only to find that the client either did not require her services or the client was not at home. However, due to the lateness of the cancellation the employee was unable to be contacted by the employer to inform her of the cancellation. In that set of circumstances, the employee received payment for the time of the booking plus travel allowance. This was unsatisfactory to the employees in several respects. They had commitments they had to meet such as arranging babysitters, etc. who they would have to pay in the type of situation mentioned above where the employee left home to attend - 5 - several clients homes during the day but one of the clients had cancelled his/her appointment and the employee had been informed of the cancellation. If the cancellation involved a client mid-way thIOugh the employee's schedule the employee would be out of pocket in two ways. One, she received no compensation and two she had to pay her babysitter. Another important consideration for the employees was arranging their own finances. Situations might arise where the employee would be notified before she left home that her services were not required and possibly could cancel the baby sitting arrangements but nevertheless, was now unable to earn income due to the cancellation. This situation was not acceptable to the employees in the Outreach program. Mr. Slee informed me that during collective bargaining for the current collective agreement, employees in each of the three programs had their own agenda in seeking concessions from the employer to satisfy their own particular needs. Of the approximate 80 members in the bargaining unit, 20 were employed in the Outreach program. These employees had a significant clout in detennining whether there would be a settlement reached in negotiations or whether a strike would ensue. The Outreach employees were determined to improve the situation with respect to the issue of compensation and cancellations. So art. 27.07 e) was eventually agreed to between the parties. Article 27.07 e) (i) was one method of anticipated improvement whereby the employer would undertake to look into developing a cancellation procedure which would provide maximum possible notice of cancelled bookings to Outreach employees. Article 27.07 e) (i) consumed a considerable amount of discussion between the parties. According to Mr. Slee, employees were expressing concern that clients were not taking - 6- responsibility for nor did they care that their cancellations were being given on short notice. The employees were pushing the employer tolook into the situation to see what improvements could be máde. The employer agreed with the employees' concerns and undertook to develop a cancellation procedure which would hopefully address the employees' concerns. The employer undertook this task and prepared a cancellatìon procedure (Ex. 9) which is dated February 3, 1999. It is interesting to note that February 3, 1999 was two days after the signing of the collective agreement on February 1. (Portions of the cancellation procedure are reproduced later in this decision.) Article 27.07 e) (ti) was also the subject of considerable discussion during negotiations. The union proposed that when an employee in the Outreach program received 24 or more hours notice of cancelled bookings the employee would be free to cancel the remainìng bookings scheduled for that particular day. The employer, on the other hand, while sympathetic to the employees' plight, was nevertheless concerned that 24 hours would not give it sufficient time to substitute another employee to cover the remainìng cancelled bookings of the original employee who had been scheduled to work those bookings. It counter proposed that three days notice or more would give it the flexibility it requITed to have others in place to meet those assignments. As I understand it, in those situations the employee receives no compensation should he/she cancel the remainìng bookings. However, the employee would then be free to arrange other employment or at least arrange babysitting services to cover a certain block of time that was requITed but no more. The three days was eventually agreed to but only after havìng received lengthy discussions between the parties. - 7- Article 27.07 e) (iii) was an issue on the table until the final hour in negotiations before a Memorandum of Settlement was signed. According to Mr. Slee, the employer wrote and offered art. 27.07 e) (iii) which the bargaining committee accepted without discussion. This was one of the final issues to be resolved between the parties. Mrs. Borley, the founding executive director of Participation Projects in March 1982, testified on behalf of the employer. She stated she has been involved in all of the bargaining negotiations that have taken place since the union was certified in 1989. Mrs. Borley informed me that funding for the program is provided by the Ministry of Health whereby the Project receives an arumal base budget to provide its services and funding has been restricted since 1992/93 when the last increase in the base budget occurred. Mrs. Borley acknowledged there was a need for certain changes concerning cancellations of schedules that had to be made for its employees and that while the 24-hour notice provision submitted by the union was considered to be unworkable, three days notice gave the employer adequate flexibility in rearranging another employee to perfonn the required work. Insofar as the notice provision with less than three days notice was concerned, it was certainly not, according to Mrs. Borley, the intention of the employer to pay employees for not working. The intent was to protect employees from lost earnings in certain circumstances. She emphasized that was the sole reason for proposing art. 27.07 e) (iii). While being cross-examined, Mr. Slee said that he spoke with Mrs. Barley about the employer's concerns over the position the union was taking over art. 27.07 e) (iii). Mrs. Barley expressed to him her view that the employer never intended the employees - 8- would receive double pay when re-deployed. Mr. Slee acknowledged he told Mrs. Borley he understood the intent of art. 27.07 was to protect employees from losses in wages. He stated that he and Mrs. Borley frequently have frank discussions over matters of mutual concern. He testified that the issue of re-deployment was never contemplated by the parties or at least not by him, nor was it discussed by the bargaining committee. In any event, he agreed to take Mrs. Borley's concerns to the bargaining committee. He stated he took no position on the matter but believed an amendment to art. 27.07 e) (ill) would be required if Mrs. Borley's interpretation was to prevail. So he took the matter to the bargaining committee and they discussed whether the employer would be able to substitute other work for that which had been cancelled. He stated he mentioned to the committee there exists a principle which is "a fair day's work for a day's pay". He said the bargaining committee told him they had cut the deal with paragraph (ill) concerning specific language which brought the Outreach members on boardto ratify the collective agreement and they wanted it enforced. In re-examination, Mr. Slee commented that he may have told Mrs. Borley that he would recommend the committee accept her position but he also reiterated he could not and would not go beyond offering her more than that. He stated again in re-examination that it was his view the parties had not considered the issue of re-deployment during negotiations. I have the impression this contributed to Mr. Slee's decision to go to the bargaining committee with Mrs. Borley's concerns. I am further of the view that Mr. Slee was sympathetic to Mrs. Borley's position but understood it was for the bargaining , " - 9- committee to make the decision on handling the matter. In any event, the grievance at issue was filed shortly after Mr. Slee's meeting with the bargaining committee. Union Submission The union does not dispute the employer's right to re-deploy its employees as it deems fit. Indeed, it has the prerogative to do so pursuant to the management rights article set out in art. 4. Article 27.07 e) (ill) is what is referred to in the industry as a "deeming clause". That is to say, when the employee receives less than three days notice of cancelled bookings, the employee will be paid for the booking as if worked. There is no dispute the grievor received less than three days notice before the scheduled assignment was to take place and therefore ought to be compensated for that work. Simply put, it is the union's position that art. 27.07 e) (iii) is a deemed working clause and if it is cancelled within the period stipulated, the employee is to be paid as if she worked that assignment. The union submits the employer had certain options open to it by stating that it could re-deploy the employees within the three day notice period or it could have said the employee would suffer no loss of pay as a result of the cancellation when it made its proposal to the union. It did not do so and the union accepted the proposal as offered and therefore the employer is bound by what the parties agreed to. The union pointed out that the parties have considered loss of pay in other sections of the collective agreement. For exanlple: 6.10 Neaotiatina Committee ... Such employees shall attend at negotiating meetings with the Employer without loss in payor benefits.... .' - 10 - 23.03 Bereavement Leave b) Upon notice from an employee, the Employer shall grant a leave of absence of one (1) day without loss of pay in order that an employee may attend the funeral ... or up to three (3) consecutive days without loss of pay in order to travel more than two hundred (200) kilometres to attend the funeral. 23.05 Leave for Jurv or Witness Dutv If an employee is required to serve as a juror in any Court of Law, or is required by subpoena to attend at Court of Law.... shall not lose regular pay because of such attendance provided that the employee: ... The union points out that the parties chose not to say in those articles that the employee shall be paid" as if worked" but rather refers to protecting a loss of pay because of these other duties. In art. 27.07 e) (ill) the parties have said the employee shall be paid in those circumstances in the same manner as she wolÙd have been paid had she worked that booking. In support of its position the union referred to Brown & Beatty, Canada Law Book, Aurora, Ontario, paragraph 4:2100 "The Object of Construction: Intention ofthe Parties"; Be Bristol-MyerH Manufacturing (Division of Bristol-MyerH Canada Inc.) and TeamsterH Union, Local 213 (1988), 3 L.A.C. (4th) 256 (McColl, Q.C. Ch.); Be Canadian Airlines Intel71atíonaJ Ltd and Canadian Union of Publíc Employees, Aírlíne Division (1993), 32 L.A.C. (4th) 398 (Springate). The union urged me to allow the grievance and award the grievor two hours pay with interest and a proper accumlÙation of seniority hours. The union further seeks a declaration that if an employee's booking is cancelled with less than three days notice, the employee will receive full pay for the cancelled booking and the employer will not - 11 - reassign that employee to perfonn other work during the scheduled period without proper compensation. Additionally, the declaration states that the grievor and any other affected employee be made whole from the date of the grievance forward, with interest, and I remain seized to resolve any resulting issues that may arise from my decision. Employer Submissions The employer addressed the sought after remedy by the union in the immediate preceding paragraph but because of the disposition of the grievance I do not consider it to be necessary to explore. The employer submits the employer has the exclusive right to direct its employees pursuant to the management rights article. Article 4.01 (b) reads: hire, discharge, direct, classify, transfer, promote, demote, lay-off and suspend or otherwise discipline employees for cause provided that a claim that an employee who has completed his probationary period has been unjustly discharged or disciplined may be the subject of a grievance and dealt with in accordance with the Grievance Procedure; By directing its employees it may deploy or re-deploy the workforce without limitation unless expressly limited by the collective agreement. Article 27.07 e) (ill) does not place any such limitations on the employer's right to deploy or re-deploy its staff. The union has placed a great deal of emphasis on intent. The employer agrees that prior collective agreements did not oblige the employer to pay its employees when cancellations occurred. It had adopted the practice of paying for cancellations when it was unable to contact the employee before arriving at the client's home, but it was not obligated to do so. But the employer recognized the employee may have undergone expenses, etc. in ananging her affairs and was sympathetic to the employee's wishes - 12 - of not losing compensation in certain circumstances. This sympathetic view was intended to have been addressed in art. 27.07 e) (ill) but there was never an intention to pay a bonus for a cancellation. Further, the empioyer never cancelled the booking. It was the client who cancelled it. What the employer did was simply re-deploy the employee from one booking to another. Or, put another way, the employer simply directed the employee to appear at another location to work the scheduled time slot. That resulted in no economic loss to the employee while at the same time providing the employer with some benefit. The employer submits that the client cancelled its booking with the employer. The emp¡oyer did not in turn cancel the scheduled time slot with the employee. it simply redirected or re-deployed the employee to another location to work during the same time slot. In summary, the employee was scheduled to work at location A and was re- deployed to location B. The employer has the right to do so. There was no intent by either party to create a windfall in favour of the employee. Therefore, the grievance should be dismissed. Decision It is obvious from the testimony of both Mr. Slee and Mrs. Borley that it was never the intention of the parties to create a windfall or a bonus to the employees in the Outreach program. The intention was clearly to give sufficient notice of cancellation to its employees so they could reanange their lives and hopefully recoup any lost compensation that may result from cancellations by clients. Thus, the three day and - 13 - more notice requirement was entered into the collective agreement for the first time in the last round of negotiations. This provision allowed the employee to cancel other scheduled assignments or bookings without penalty. The union initially sought to have the notice provision be 24 hours but as we know this hampered the employer's flexibility and the three day provision was agreed upon. So too was the less than three day provision whereby the employee was not to suffer lost compensation. The issue is very narrow and not complex. It is agreed the employer can re-deploy any employee whose booking was cancelled with notice ofless than three days pursuant to art. 27.07 e) (ill). The issue the parties did not consider was re-deployment of that employee when the booking was cancelled. Nor was there any consideration given to what would happen in the event an employee was re-deployed to some other r assignment to cover the cancelled booking. Was the employee to receive additional compensation for that deployment or was it to be considered part of the normal compensation the employee would have received had she worked the booking that had originally been scheduled? While the employer conveyed no intentions to the union on this subject during negotiations, it soon formulated such an intention which is evident in its cancellation procedure which it prepared pursuant to art. 27.07 e) (i) which is dated ~ebmary 3, 1999 (Ex. 9). Portions of the procedure are relevant and read as follows: It is the Employers' intention to provide maximum possible notice with respect to cancelled bookings in accordance with Article 27.07 of the Collective Agreement and to prevent loss of wages for Outreach staff. Staff may be re-deployed accordingly. It is also the Employer's intention to work with outreach clients to avoid cancellations of bookings without providing sufficient notice. It is recognized that in accordance with article 27.07 e) ii) of the Collective Agreement, when an outreach part-time employee receives 3 days or more of notice of cancelled booking from the employer, the - 14- employee may cancel hisjher availability for the remaining bookings in that s hili . ... 3. Responsibility of Supervisor or designate ... 3.2 Where a client has cancelled service with less than 3 days notice, the supervisor will make every attempt to re-deploy staff at the pre- scheduled time, but within stated availability. ... 4. Re-deployment Options 4.1 4.2 4.3 4.4 4.5 5. Other clients who could benefit from additional non- essential services. Where appropriate, the affected staff will report to other work locations (Le. Haig, Regent, Day Centre) at the pre- scheduled booking time in order to assist with client services or for training. One-to-one supervision. Assist another outreach worker to complete a booking. Other duties assigned from time to time. Arranging Alternate Work Assignment ( 5.1 5.2 5.3 The Supervisor, or designate, will inform the employee needing to be re-deployed of the location, expected time of arrival and duration of the booking. Staff at the location for re-deployment (Haig, Regent, Outreach, Day Center) will be notified of the outreach worker's new assignment. The outreach worker's supervisor will also ensure that staff are aware of any specific training requirements. When the outreach worker reports to an alternate work site, the supervisor on duty or the most senior staff person will provide direction on the work to be done. While the cancellation procedure cannot assist the employer in respect of its intent or lack thereof during negotiations, it does provide a measure of corroboration to the employer's position that the employer never intended there to be a bonus or windfall to an employee who received notice with less than three days prior to the scheduled assignment. Article 27.07 e) (ill) was intended solely to protect the employee from lost - 15 - compensation. Mr. Slee's evidence supports this view. He perceived the intent of the parties to be there would be no loss in compensation to employees who received notice of cancellation within the three day notice period. Whether any other members of the union bargaining committee gave consideration to what compensation should be pàid should the cancelled employee be re-deployed is unclear. The grievor was not called to testify and therefore I do not have the benefit of her evidence. Nor indeed am I aware that she was even a member of the bargaining committee. But what is before me is a question requiring an interpretation of the article that is in dispute. It is obvious that when the time the cancellation procedure was prepared by the employer the issue of re-deployment was a foremost consideration. I am satisfied from the evidence of Mr. Slee and Mrs. Borley the intention of the parties was that employees should not suffer a loss in compensation for a late notice cancellation. This was a guarantee extended by the employer to its employees in the Outreach program which satisfied their concerns relating to lost compensation. How or if employees were to be re-deployed because of the cancellation was not addressed by the parties during their negotiations nor can it be said from the aviillable evidence was it even considered. Therefore, it can hardly be said the parties entertained certain intentions as to what would happen should an employee be re-deployed. Clearly, the employer considered tills matter when it prepared its cancellation procedure following the conclusion of negotiations but at the time of negotiations it does not appear to have been part of their considerations. " - 16 - While the wording in art. 27.07 e) (ill) is awkwaId at best it nevertheless, in my view, conveys sufficiently what the parties had in mind.. Employees who received less than three days notice of a cancellation were not to suffer any loss of compensation but were to be paid as if they had worked the scheduled time period. There was no intention, nor do I believe was it considered, that employees would be paid double.if they were to be assigned other work during the scheduled time period. It is agreed the employer possesses the right to re-deploy (reassign) its workforce in the instant situation. That is what has occurred here. Based on the evidence of the parties, it was the intent of both parties to protect the employees from lost wages and art. 27.07 e) (ill) was the vehicle chosen to accomplish that intent. In order to obtain more from 27.07 e) (ill) the wording would have to be crystal cleaI and ironclad. In my view, based on the circumstances before me, the article does not achieve what the grievance seeks. If I am wrong and the article, as written, can only be interpreted as submitted by the union then I resort to the remedy of rectification. The parties intended the article to protect employees from loss of earnings. They did not intend it to provide double pay. The article must, in such circumstances, be' rectified to reflect the true intent of the parties which, as I have noted repeatedly above, is to protect the employee from lost compensation. At one time there existed doubt whether an aIbitrator had the authority to rectify a provision in a collective agreement to reflect the true intent of the parties. That doubt existed due in part to the prohibition set out in collective agreements and the Labour - 17 - Relations Act against amending collective agreements. However, any doubt that may have existed with respect to the use of the equitable remedy of rectification of collective agreements no longer exists. See for example, Be Ethyl Canada Ine. and Energy and Chemical Workers Union, Local 300(1987), 26 L.A.C. (3d) 201 (Devlin) and Re British Columbian Hydro and Power Authority and Office and professional Employees' International Union, Local 378(1997), 63 L.A.C. (4th) 86 (Germaine). Briefly stated, rectifying the collective agreement is not amending it. It is only interpreting the wording to reflect the true intent of the parties. That is what I would be doing if it were necessary to rely on the remedy of rectification. However, I repeat I would rely on rectification only if I am wrong in my earlier assessment and conclusion of this matter. For all of the above reasons the grievance is dismissed. - Dated at Kingston, Ontario, this 15th day of Jlllle, 2000. ~L~ C. Gordon Simmons Arbitrator