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HomeMy WebLinkAbout1988-0694.Cripps.89-01-05 , ONTARIO EMPLOY~SDELACOURONNE CROWN EMPLOYEES DE L'ONTAF~IO " GRIEVANCE C,OMMISSiON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, TORONTO. ONTARIO. MSG 1Z8- SUITE 2100 TELEPHONE/TEL~'PHONE 180, RUE DUNDA,~ Ol..f£$T, TORONTO, (ONTAR.~O) MSG lZB. BUREAU 2100 (41~) 598-0688 · 0694/88 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (L. Cripps) Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer Before: J.W. Samuels Vice-Chairperson F. Collom Member F. Collict Member For the Grievor: M. Bevan Grievance Officer Ontario Public Service Emp]oyees Union For the Emp]oyer:J. F. Benedict Manager Staff Relations and Compensmt~on Ministry of Correctional Services HEARING: December 13, 1988 DECISION 2 This case involves a claim for payment for a day spent as a witness, pursuant to Article 32.1 of the collective agreement. The grievor is a correctional officer. In June 1988, he was working at the ~llbrook Correctional Centre. On Friday, June 18, the grievor was summonsed as a wimess to a hearing of the Grievance Settlement Board on Monday, June 20. He 'was scheduled to work from 3 PM to 11 PM on the 20th, so he went to Mr. W. Ellis, the Acting Assistant Superintendent, to make arrangements for his attendance as a witness. Mr. Ellis said that he would look after it. Mr. Ellis took the grievor off the scheduled roster for the 20th and called in a casual replacemem. At least up until that time, the practice at the facility was not to pay for time spent appearing as a witness at the Grievance Settlement Board, so the grievor understood that he would not be paid for the day unless he grieved, in which case he might get paid pursuant to Article 32.1. The hearing on the 20th was over by 11:30 AM. The grievor had not been called to testify. Though there was time for him to return to" Millbrook and do his entire shift that day, he did not report for work because he had been taken off the roster for the day. Mr. G. Preston, the Superintendent of the facility, was at the hearing and he gave the grievor no instructions to report for duty. Article 32.1 is entitled "LEAVE - JURY DUTY" and provides, in part: Where an employee is absent by reason of a summons to serve as a juror or a subpoena as a wimess, the employee may, at his option: ..... (c) treat the absence as a leave with pay and pay to the Treasurer of Ontario any fee he has received as a juror or as a witness. 3 The Ministry argues in this case that the grievor was not absent "by reason of a subpoena", because he had time to report for work on June 20, and reliance is placed on Croft, GSB 2287187 (Roberts), I~ Croft, the grievor was a security officer at a government building. When he was summonsed to appear as a witness at a hearing of the Grievance Settlement Board scheduled the next day, his supervisor refused to permit him to be absent from work, saying that a summons from the Board was "unenforceable", unlike a summons from a court. However, the Union's lawyer advised the gfievor that the supervisor was incorrect (we note that, of course, the supervisor was wrong--a summons from the Grievance Settlement Board, like a summons from a court, is pursuant to statutory authority and is enforceable). The lawyer said that he would arrange for the gfievor's absence to attend the heating. The next day, the grievor was not called to testify. After the hearing was over, the Ministry's lawyer informed the grievor that he was expected to show up for his shift at 3 PM. He did not do so. He was not disciplined for fairing to report for work, and he claimed payment for the shift pursuant to Article 32.1. The Board dismissed the grievance. The critical element in Croft is the fact that the grievor knew that management expected him to report for work at 3 PM and it was possible for him to do so. Therefore, the grievor was not absent from work "by reason of a SUlTll'nons'. In our view, our case differs substantially from Croft. The grievor was effectively relieved from duty on June 20, in response to the summons to appear as a witness at the Grievance Settlement Board. He was taken Off the roster and his place was filled by a casual employee. Management could have told him to return to work if possible, but no such order was given. A correctional officer works in a much more structured environment than most employees. He cannot simply slip into work when 4 he becomes available. The positions to be filled in a correctional facility must be manned as scheduled in order to maintain the security of the institution. When the hearing was over on June 20, as far as the grievor knew, iarrangements had been made to man the institution for the 3-11 shift, and he was not included in these arrangements. It was reasonable for him to conclude that he did not have to report for work. In these circumstances, the grievor was absent from work "by reason of a summons". We must be clear that we are not saying that management was obligated to relieve the grievor from duty for his shift on June 20, All that management has to do is give the employee the time off necessary to enable attendance at the hearing in response to the summons from the Board. Management has every right to require the employee to return to work once his attendance is no longer required by the Board. However, in our grievor's case, management formally relieved him from duty and replaced the coverage. 5 For these reasons, the grievance is allowed. The grievor is entitled to his pay for June 20, less any fee he received as a witness. We will remain seized to determine any matter related to this compensation that the parties.are unable to agree upon themselves. Done at London, Ontario, this 5th day of January, 1989. -=Z~$amuels, Vice-Chair ~F.. C ~ollom, Member