HomeMy WebLinkAbout1988-0120.Patterson.89-05-10 ONTA RIO EMPLOY~-S DE LA COURONNE
CROWN EMPLOYEES DE L'ONTARJO
GRIEVANCE C,OMMISSlON DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
· , 180 OUNDAS STREET WEST, TORONTO, ONTARIO. MSG IZ8- SUITE 2100 TELEPHONE/T~L~'PHONE
t80, RUE DUNDAS OUEST, TORONTO, (ONTARIO} M5G lZ8 * BUREAU 2100 (416)598-0688
Z~-0/88
IN TIlE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between:
OPSEU (Patterson)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Correc.tional Services)
Employer
Befo[e:
J. Forbes-Roberts - Vice-Chairperson
J.D. McManus - Member
A.G. Stapleton - Member
APPEARING FOR D.A. Crolla
TEE GRiEVOR: -Counsel
Gowling & Henderson
Barristers & Solicitors
AppEARING FOR M. Galway
THE EMPLOYER: Staff Relations Officer
Ministry of Correctional Services
HEARING: August 4, 1988
The grievor, Ms. Juli Patterson, is a Correctional Officer
II ("C.O.II") at the Sau]t Ste. Marie District Jail ("the Jail").
The Jail is a maximum security institution which employs approxi-
mately thirty-five to forty (35 to 40) full-time C.O.s and
twenty-five to thirty (25 to 30) part-time C.O.s, all of whom
work rotating shifts, in addition there are a limited number of
casual staff who can be used in'the event of vacation, illness
etc.
On February 7, 1988 the grievor was scheduled to work the
12:00 a.m. to 8:00 a.m. shift. She was also scheduled to work on
February 6th and 8th. On January 20, 1988 the grievor made a
written request to Mr. Richard Hattie to have February 7, 1988
off as a statutory holiday. The stat. holiday had been banked
pursuant to article 19.3 of the collective agreement which
states:
19.3 When a holiday included under Article 48 (Holidays)
coincides with an employee's scheduled day off and
he does not work on that day, the employee shall be
entitled to receive another day off.
.I
The grievor sought to "spend" her banked holiday pursuant to
article 19.5 of the agreement which states:
19.4 Any compensating leave accumulated under sections
19.2 and 19.3 may be taken off at a time mutually
agreed u~gn. Failing agreement, such time off may
be taken in conJunctipn with the employee's ay_~_~-
tion leav~ or regula~ day(s~ off, if requested -
one (1) month in advance.
(~mphasis added)
Mr. Hattie took the grievor's request up with the ~ssistai~t
Superintendent, Mr. J. Lake. They established that to g~ant the
request would require scheduling another regular full-time
employee to work overtime. As this was contrary to jail policy,
the request for a compensating day was denied. The grievor was
however, permitted to switch shifts with ~another employee, and'
thus did in fact get February 7th off.
Following the denial of her request for compensating time Ms
Patterson filed a request alleging a breach of article 19.4.
There is a considerable body of jurisprudence on this issue,
- 2 -
much of .it emanating from the Ministry of Correctional Services
("the Ministry"). Following re: Tremblay (G=S~B< ~85/81) (upheld
by the Divisional Court) it seems clear that if the parties
cannot agree on compensating time the second sentence of article
19.4 creates an absolute right f~r the employee to take the time
in conjunction with vacation or regula~ daY(s) g~f.
Hoverer. that is not the set of facts facing this Board. The
grievor did not either request compensating time in conjunction
with vacation or other scheduled time off nor'invoke her right to
same. Rather she requested a day disassociated from any other
scheduled time off. The Board is thus left to interpret only the
first sentence of article 19.4.
Clearly in the present case there was no mutual agreement
between the parties. Unlike the second sentence, in the absence
of such agreement the first sentence of article 19.4 does not
provide any vested rights in the grievor vis a vis the timing of
isolated compensating days off. The element of mutual agreement
places a discretion in the hands of both parties. Just as the
employee would be free to refuse a request made by the Employer
to take a compensating day at a particular time, the Employer is
free to refuse an employee's request.
Even if this Board were to imply that there was an
obligation on the Employer to exercise its discretion in a fair
and non-discriminatory fashion, we would find that this require-
ment had been met.
The grievance is hereby dismissed.
Dated at Toronto this l~th day of May, 1989.
~-~.Forbes-Roberts, Vice-Chairperson
"~ Dis~nt" ~irhout ~rjt~ r~naon' ~
3.D. ~¢Hanus, Bember
A.G. Stapleton, [~embe~