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Home My WebLink About2013-2406.McGann et al.15-05-05 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2013-2406, 2013-2407 UNION#2013-0526-0080, 2013-0526-0081 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (McGann et al) Union - and - The Crown in Right of Ontario (Ministry of Attorney General) Employer BEFORE Nimal Dissanayake Vice-Chair FOR THE UNION Seung Chi Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Omar Shahab Treasury Board Secretariat Legal Services Branch Counsel HEARING May 1, 2015 - 2 - Decision [1] This decision results from a mediation/arbitration under article 22.16 of the collective agreement with regard to two group grievances filed by Mr. Dag McGann, Mr. Edwin Mercurio and Ms. Jennifer Harper (“grievors”) who are employed as Courtroom Registrars at the Superior Court of Justice Civil Division in Toronto. [2] Reimbursement for cost of washing/dry cleaning robes. The grievors are required to wear robes while working. These robes get stained and dirty during the course of their work performance. The grievors assert that until approximately 2007 the employer reimbursed the cost of washing or dry cleaning incurred in cleaning the robes. However, at that time courtroom registrars were advised that the robes may be washed like any other personal clothing, and the practice of reimbursement ceased. The union asserts that it is unfair to expect the grievors to bear the cost of cleaning apparel which the employer requires them to wear while performing their core duties as courtroom registrar. They seek an order that the employer reinstate the practice of reimbursing those costs. [3] The employer’s position simply is that for the grievor’s to claim reimbursement, they must be able to rely on a right under the collective agreement. Their assertion of unfairness does not give the Board jurisdiction to issue the order sought. The employer in any event disagrees that there is any unfairness, because the robes are capable of being washed along with the grievors’ personal clothing, and need not be professionally washed or dry cleaned. [4] The union is in effect seeking a monetary benefit. In order to do so, it must be able to rely on clear terms of the collective agreement that confers a right to that benefit. It has not pointed to any such provision. Therefore, even if the Board agrees with the grievors that the employer is being unfair, that cannot translate into a violation of the collective agreement. Therefore, there is no violation established and the grievance is hereby dismissed. [5] Overtime The grievors are employed as Flexible Part-Time (FPT) employees. Appendix 32 to the collective agreement sets out the terms that apply to FPT employees. Under those - 3 - terms, the grievors become entitled to overtime pay in different circumstances, the details of which are not relevant for present purposes. It suffices to state generally that the more hours they work, the more opportunities they would have to earn overtime pay. [6] The union claims that the employer has failed to assign available overtime work in a fair and equitable manner. It is asserted that while other courtroom registrars are assigned to court proceedings requiring long hours such as trials, the grievors are for most part assigned to brief sittings such a motions. The grievors believe that as a result they get less overtime opportunities than many of their colleagues. [7] The union points out that the employer is able to, and in fact does, keep track of the hours of court sittings and hours of work assigned to each courtroom registrar. However, information relating to these hours are not disclosed to employees. As a result there is suspicion among courtroom registrars that certain individuals get preferential treatment in the assignment of hours as a result of personal friendships with supervisors. That in turn leads to conflict and personal problems among colleagues. [8] The union claims that the employer’s conduct constitutes harassment. In addition, it is argued that it is in contravention of the Occupational Health and Safety Act, and article 9 of the collective agreement. It seeks an order that the employer develop and implement a method of assigning overtime opportunities in a fair and equitable manner. [9] The employer submits that it makes every effort to distribute overtime hours fairly and equitably, even though it has no obligation to do so under the collective agreement. Counsel submitted that the grievors have no right to be provided information about hours relating to court sittings or hours of work assigned to individual employees. Nor do they have a collective agreement right to fair and equitable distribution of overtime. [10] The claim advanced in the grievance appears to be two-fold. The first relates to the alleged failure to provide information relating to hours of court sittings, and which courtroom registrars were assigned those hours. There is simply no basis for asserting such a right under the collective agreement. [11] The collective agreement in article UN 14.1.2 under the heading “Regular Part-Time Employees” provides that “In the distribution of overtime, the Employer agrees to - 4 - develop methods of distributing overtime at the local workplace that are fair and equitable after having ensured that all operational requirements are met”. It is notable that the grievors requested remedy is almost exactly that right accorded in article UN 14.1.2 of the collective agreement to regular part-time employees. However, the grievors are not regular part-time employees. It is undisputed that as FPT employees, they are governed by the terms of a specific Memorandum of Agreement appended to the collective agreement as Appendix 32 that applies to “irregularly scheduled court support staff”. Appendix 32 at paragraphs 4(a) and 4(b) lists a number of articles of the collective agreement that apply to FPT employees. Paragraph 4(f) explicitly stipulates that “No other provisions of the collective agreement other than those included in this Memorandum of Agreement shall apply to Flexible Part-Time staff of the Ministry of the Attorney General.” Article UN14 is not listed as a provision that applies to FPT employees. Therefore it is clear that the grievors, as FPT employees, do not benefit from article UN 14 of the collective agreement. Nor is there any provision in Appendix 32 which imposes a requirement on the employer to distribute overtime in a fair and equitable manner. Therefore, even if the union’s assertion is correct that there has been no fair and equitable distribution of overtime, there could not be any violation of the collective agreement. [12] Article 3 is one of the provisions listed in appendix 32 as applying to FPT employees. Article 3.3 defines “workplace harassment” as “engaging in a course of vexations comment or conduct against an employee in the workplace that is known or ought reasonably to be known to be unwelcome”. If all factual assertions by the union are accepted as established that would not come within that definition. [13] My review of Appendix 32 does not reveal that article 9 applies to FPT employees. Nevertheless, the grievors are clearly entitled to the right under the Occupational Health and Safety Act that the employer “take every precaution reasonable in the circumstances for the protection of a worker”, even without the benefit of article 9. - 5 - However, the union did not explain how the conduct it attributes to the employer in relation to assignment of hours of work and overtime distribution could possibly expose the grievors to an unreasonable safety or health risk. The Board finds that no violation of such a right is established. Accordingly, this grievance is also dismissed. Dated at Toronto, Ontario this 5th day of May 2015. Nimal Dissanayake, Vice-Chair