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HomeMy WebLinkAbout1988-0584.Stockwell.94-03-01 ONTARIO EMPLOY£S DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO GR'EVANCE C ,OMM'SS'ON DE BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2'~00, TORONTO, ONTARIO. MSG 180, .RUE DUNDAS OUEST, BU.REAU 2 '~GO, TOF~ONTO (ONTARIO.). USG. IZ8 FACSIIVIILE/T~L~COPIE : (4 ! 6) 326- t 396 IN THE MATTER OF ~N ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGA~NINGACT Before- THE GRIEVANCE SETTLEMENT BOARD- BETWEEN - OPSEU (Stockwell) Grievor The Crown. in Right of Ontario (Ministry of Correctional Services) · ~ Empl0~er BEFORE' S.'Stewart Vice-ChairperSon M. Vorster Member D.~Clark Member FOR THE S. Ursel GRIEVOR Counsel 'Cornish Advocates Barristers & Solicitors FOR THE T. Rioux/A. GUlbinski EMPLOYER Grievance Administration officers Ministry of Correctional Services HEARING May 6, 1992 . June 1, 1993 DECISION The grievor, Ms. M. Stockwell, is employed as a Correctional Officer 2 'at the Metro Toront° West Detention Centre. Ms. Stockwell alleges that the Employer has violated the Collective Agreement-by denying hera leave of absence with pay for May 30 and May 31, 1988. The provision of-the Collective Agreement in issue is Article 27.6.1 which provides as follows: An employee who is a grievor or complainant and who'-makes application for a hearing before the Grievance Settlement Board or the Public Service Labour Relations Tribunal shall be allowed leave-of-absence with no loss of pay and with no loss of credits, if required to be in attendance by the Board or TribUnal. Also in issue is Article 18.1 of the Collective Agreement whidh provides as follows: The. Employer shall continue to 'make reasonable provisions for. the safety and health of its employees during the hours Of their employment. It is agreed that both the Employer and the Union shall co- operate to the fullest extent possible in the preventi°~ of accidents and in the reasonable promotion of safety and health of all employees. There was no real dispute about the 'relevant~ fact~. Ms..Stockwell was a grievor in connection with a health and safety grievance which was Scheduled to be heard before the Grievance Settlement Board on May 31, 1988. At that time, Ms. Stockwell was in the course of a seriesrof midnight shifts and was scheduled to work 11:00 p.m. to 7:00 a.m. To work and attend the hearing Ms. Stockwell would have been required to work the' night before the Grievance Settlement Board hearing, to attend at 2 the hearing during, the day and then work that evening. Ms.. Stockwell requested a leave of. absence with. pay to attend the hearing. Her request for a leave of'absence with pay was denied. She was advised that her circumstances did not fall within the provisions of Article 27.6.1.because her working hours'~did'not 'conflict with the day of her hearing. Ms. Stockwell stated that it was too late to attempt to arrange a'change in shifts at this point and that her only options were to utilize a vacation day or a lieu day. She-requested and obtained approval for vacation for May 30 and May 3~,. 1988. Accordingly, she was paid for the two ~days and two vacation credits were deducted. We were advised that the parties haVe now resolved this issue at this institution by adopting a practice of rescheduling. employees in similar circumstances.· HOwever, the option of rescheduling was not offered to Ms. Stockweli, nor did she request it. Ms. Stockwell gave evidence about the nature of her · duties. Her recollection was that on the nights for which she., sought leave with pay she would have been assigned to work in the' control module of the institution where she would have been responsible for the flow of movement and communication. She may have.been called upon to deal with confrontations by inmates, searches, and~emergency situations. She referred to the need to be alert in those'circumstances. Ms. Stockwell indicated that' she would have.experienced difficulty functioning at the hearing if She worked the night before and that she would have. experienced difficulty-in functioning effectiVely at work following a day of hearing~when she had been working'all night the previous night. '~ The Union also called Dr. G. Scott, apsychiatrist. Dr. Scott has had eXtensive.experience in the correctional system, He testified that if an employee were to work withOut adequate sleep ·there is a potential for errors to be made and for poor judgment to be exercised. ~ In Ministry of Correcti0nal services & OPSEU (Sim) 256/88 (WatterS), the Board de~l.t with a similar grievance. In that case a Correctional'Officer'was similarly scheduled to work nights and to attend at an arbitration hearing between two night shifts. The grievor's ~equest for paid leave pursuant to Article 27.'6.1 of the Collective Agreement for the night prior to the arbitration hearing'was denied and the employee was given the option of taking a Vacation day or a lieu day. At the hearing, that-panel also heard evidence from Dr. Scott. The Board concluded in that case that a ·violation of the Collective Agreement had not been. established. At pp. 8-10 the Board states as follows: Both parties' appeared.to concede that the threshold issue in this case was one of cost. This Board has previously determined in Roberts et al. that article 27.6.1 is triggered only where a hearing is scheduled during any time.when a grievor is scheduled to work. In this regard, the following comment is found between pages 9-10 of the award: ... the Employer is obligated to grant a leave of absence with no loss of pay and no loss of Credits where an.employee is'a grievor or complainant and is required to be in attendance at a hearing before either the Grievance Settlement. Board or 'the Public Service Labour Relations Tribunal. 'Article 27.6.1 comes into effect where the qrievor or complainant, as the case may be would otherwise be working but~ for the required~attendance at the hearing. (emphasis ours) The Board in that instance was not prepared to extend this obligation to cover midnight shifts falling on the day of the hearing. While the case was decided on an interpretation of article 27.6.1 it is of some interest to note that the grievors therein maintained' the Employer's practice was unreasonable, inter alia, from the standpoint of health and safety. The award, however, does not comment further on that concern. Ultimately,' the · Board in Roberts et al. concluded that it would be breaching article 27.16 of the collective agreement if it enlarged article 27.6.1 in the manner claimed. It was argued by counsel for the union that the case of Ms. Sim was "extraordinary". After considerable thought, we are unable 'to agree. We think that analogous situations would frequently arise in the corrections context where employees regularly work midnight shifts. In our assessment, any award of damages which we might grant would · be equally'applicable to other employees Whose hearing falls between two scheduled midnight shifts. Ultimately, the Board concludes that to order the relief claimed, in the form of paid leave, would be tantamount to altering or amending the cOllective agreement. We are prohibited from engaging in such an exercise by article 27.16. This conclusion~should~not be construed as meaning that this Board cannot impose additional obligations when awarding a remedy Under article 18.1. There will likely be occasions where the Board will be compelled to create new obligations so as~to give ~effect to the parties intent as reflected in the article. We are disinclined to do so in respect of this grievance,~however,'as we do not think that its effect could ~be limited to this instance. In the last analysis, we believe that the claim of the Union for paid leave for this type of circumstance should be a subject to be reviewed during negotiations' rather than arbitrated. Given the language rof the collective agreement as it now stands, the Board finds that the Employer made the reasonable provision contemplated by article 18.1 when it granted the lieu day to the grievor. This allowed her an opportunity to get a good night's sleep prior to. her attendance before this Board on February l, 1988.' Additionally, the Employer'response minimized the likelihood of the grievor experiencing fatigue for the related symptoms on the subsequent midnight shift. It is the position of the Union that the decision in Si__~m should not be followed. Dealing first with the matter of the appropriate intgrpretation to be given to Article 27.6.1, MS. Ursel argued that the reference to "no loss of credits" in.that proVision is intended to encompass vacation credits, to prevent the Employer from~compelling an employee to take vacation credits, the very situation in existence here. Ms. ursel noted that this argument was not made before the Board in Siam and submitted that on this basis, inter alia, the Si__~m decision should not be followed. Ms. Ursel further argued that the princiPle of reasonable contract administration was applicable, another '6 argument that was apparently not advanced in Sim, and that'the Employer has violated its obligation in this regard. Ms. Ursel referred the Board tolthe decision of the .Divisional Court in Dupuis, wherein the Court indicated that "manifest error" was the appropriate test for the Board to employ in determining whether its previous decisions ought to be followed. It is the position of the Employer that the sim decision deals with the very situation before~us and that it ought to be followed and applied here. We are unable to accept the argument advanced'by Ms. Ursel with respect to the meaning to be given to the phrase "no loss of credits"in Article 27.6.1. The phrase "no loss of credits" is preceded by the conjunctive "and", clearly relating back to the preceding words, "leave of absence with no loss of pay,,. If Article 27.6.1 applies, the employee ~s on a leave of absence and there is no issue of an employee taking vacation time. The phrase "no loss of credits" in Article 27.6.1 can be given meaning in its context, that being to ensure that an employee does not lose any credits that Would normally be associated wi~h working a particular day. While we agree with Ms. Ursel's.observation"that the credits that would be accumulated on a. day of absence would not be particularly significant, we are unable to agree with her submission that this is a matter that the parties would be unlikely to have addressed specifically. in ~inistry of Transportation and Communication & OPSEU (McKie), 80/89, (Palmer), the Board dealt with a situation wh'ere an employee scheduled on a day off coincided with a second stage .grievance meeting requiring him to attend at work but not be paid. The employee alleged.a violation of wha~ is nowArticle 27.6.2, which Provides~that: An employee who has a grievance and is required to attend meetings at Stage One and Two of the Grievance Procedure shall be given time off with no loss of credits to attend such meetings. The Board dismissed the grievance, making the .following comments at pp. 6-7: Having considered the arguments of the parties, it is the view of this Board that the grievance be dismissed. In this regard, we agree with~the position put forward by the Employer regarding Article 27.7.2 (now 27.6.2). Quite clearlY, the meaning of this clause is'that where a grievance meeting is scheduled during times when the grievor is scheduled to work, the Employer is required to permit him to attend this meeting, pay him for the time while he is so engaged, and, · finally, treat the time whenhe is at this meeting as ifhe had worked for purposes of credits for vacations and the like'. Again, having set out this requirement .·for payment, there is no obligation'for the Employer to' go further. The conclusion in that case with respect tO the meaning of·the phrase "time off with no loss of credits" supports the Employer's position with respect to the meaning of the identical phrase in Article 27.6.1.. Ms. Ursel referred the Board to Re Transit Windsor.and AmalGamated Transit Union, Local 616, (i982) ~6 L~.A.C. (3d) 69 (Hinnegan), in which the arbitrator concluded that'employees Who were entitled to the difference in pay between witness or jury fees and~regular earnings were not required to work thei~ scheduled shift when the court ~appearances and shifts'did not o~erlap. That decision dealt with a different situation under different language. The issue before us has been~specifically addressed in sim, supra, and we are not persuaded that'this decision was manifestly'.wrong'with respect to the interpretation to be given to Article 27~6.1. of the CollectiveAgreement. We turn now to the.matter of Article 18.1'0f the CollectiVe Agreement, the obligation of the Employer t° make reasonable provisiOns-for 'the health and safety of its employees.. Given the nature 6f Ms. StockWell'sduties and considering Dr. Scott's evidence, in light of the provisions of Article 18.1 and the principles of reasonable contract administration, we accept the Union's position that it was incumbent on the Employer to ensure that Ms. Stockwell was not'required to work the two'night shifts that were adjacent to her day of hearing at the Grievance Settlement Board. 'In Si~, it was concluded that the Employer met its obligation pursuant to Article 18.1 of the Collective .Agreement by granting the grievor.a lieu day. Similarly, it was argued on behalf of the Employer that the obligation has been met here by the granting of two vacation days to the grievor. We are in agreement with the conclusion in Sim With respect to this matter and accordingly, conclude that the Employer'met its obligation pursuant to Article 18.1 of the Collective Agreement by ensuring that Ms. Stockwell was not · scheduled to work on the nights~adjacent to her day Of hearing. While we agree with Ms. Ursel that the utilization of vacation credits in order to attend at an arbitration heating which may entail the exercise'of a statutory.right 'is not consistent with the ordinary expectations of employees with.respect to the use of such credits,'we-are unable to find that the Employer acted unreasonably or contrary to the COllective Agreement in requiring her to utilize her vacation credits in order to have paid leave. While there might have been.other options, such as the arrangement for an exchange of shifts or simply an unpaid leave of absence, there, was no specific request for either of these options. We are unable to accept Ms. Ursel's submission that the. situation before us'is analogous to the situation in decisions such as Re British Columbia Railway Co and Canadian Union of Transportation Employees, Local 6, (1988), 2'L.A.C. (4th) 331 (Hope), wherein a limiting effect on seniority rights was found to restrict the exercise of a management right. Given that Ms. Stockwell's circumstances do not fall within the provisions of Article 27.6.1 so as to entitle her to paid leave, it was not inappropriate Or unreasonable for the Employer torequire that entitlement to payment for those days be based on the utilization of credits such as vacation or lieu days. In summary, while we echo the comments in sim as to the appropriateness of this matter being addressed in collective bargaining and we commend the parties~fo~ now having developed a solution to this problem at this institution as a matter of practice, we are unable to conclude that a violation of the Collective Agreement has been established in this instance' Therefore, the grievance is dismissed. Dated at Toronto, this 1st day of March, 1994. S.L. Stewart - Vice ChairpersOn "! Dissent" (d{ssent to follow) M. Vorster - Member D. Clark - Member