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HomeMy WebLinkAbout1988-1166.Brandt et al.90-08-07 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPL OYE£S OE L'ON TA RIO GRIEVANCE COMMISSION DE SETTLEMENT Ri=-GLEMENT, BOARD - DES GRIEFS 180 DUNDAS STREET wE.ST, TORONTO, ONTARIO. MSG 1Z8 - sUITE 2700 .TELEPHONE/T£L~'PHONE 780. RUE DUNDAS OUEST, TORONTO, (ONTARIO) M5G tZ8. BUREAU 2700 (416) 598-0688 1166/88 ~N THE MATTER OF AN ARBITRATION Under THE'CROWN EMPLOYEES CO'LLECTIYE B~GAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD ' BETWEEN OPSEU (Brandt et al) Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer - and -' ,J. Roberts Vice-Chairperson F. Taylor Member E. Orsini Member FOR THE C. Wilkey ~ GRIEVOR -Counsel Cornish Roland .. Barristers & Solicitors FOR TEE J.F. Benedict EMPLOYER Manager Human Resources Management Ministry of Correctional Services BEARING: September 7, 1989 June 5, 1990 AWARD This is an interesting case arising out of a compressed work week agreement between the Union and the Ministry for the Walkerton Jail. It seems that the Ministry unilaterally adjusted the shift schedule in this agreement to accommodate the religious beliefs of one. of the Correctional Officers-in the bargaining unit. The six grievors thereafter filed grievances in which they sought a declaration that this unilateral action breached the compressed work week agreement. They also claimed damages based upon certain disadvantages which they said were suffered by reason of their being required to work the amended schedule. For reasons which follow, the grievance is allowed in part. A declaration will issue that the unilateral action of management did, in. fact, breach the compressed work week agreement; however, there will be no award with respect to damages. The evidence disclosed that since 1983 the general duty Correctional Officers at the Walkerton Jail worked a rotating shift schedule composed of a certain number of 19. hour and a lesser number of 8-hour shifts. This arrangement was. made possible by a compressed work week agreement between the parties which essentially was renewed from year-to-year. Among the provisions of this agreement was Article 2.1, which read as follows: 2.1 The regular hours of work for all employees covered by this agreement will be twelve (12), or eight (8) hours, per day or combinations thereof in rotation and will also 2 be forty (40) hours per week. averaged over the 13 week scheduling rotation. The Work schedule is reflected in AppendixL "A'' attached hereto and forms part of this agreament. As can be seen, under this provision the waikerton Jail was bound to provide the Correctional Officers with a 13-week rotating work Schedule. This work schedule formed part of the agreement. An example which "reflected" such a work schedule was attached to the agreement as Appendix "A". A's can be appreciated, because the jail required staffing 24 hours per day, 7 days per Week, this schedule required each Correctional Officer to work on some Friday nights and Saturdays. On June 6, 1988, one of the 13 Correctional Officers who rotated through this shift schedule, Mr. Allen Clark, informed the Superintendent of the Walkerton Jail, Mr. B. C. Parker, that he had converted to the Worldwide Church of God, and this religion required himto refrain from working on the Sabbath. The Worldwide Church of God, it seemed, observed the Sabbath from sundown Friday to sundown on Saturday. Mr. Clark requested Mr. ParKer to. accommodate his religious beliefs by rearranging things so that he would'not have to work on those shifts which conflicted with the strict observance of the Sabbath. This request set off a chain of event which culminated on August 19, 1988 with the posting.of a notice from Mr. Parker that effective September 5, the shift schedule would be changed. Under this change, Mr. Clark was permanently assigned, inter alia, to work from 7:00 p.m. to 7:00 a.m. on Monday, Tuesday and Wednesday. This meant that the remaining 12 Correctional Officers were required to rotate through a 12-week rotating schedule rather than the 13-week schedule called for in the compressed work week agreement. The notice advised affected members of staff that "every effort has been made to minimize the change in each officer's schedule." Indeed, the evidence at the hearing indicated that management went to great lengths to consider the feasibility of a number of different arrangements before finally settling upon the amendment to the schedule set forth in the notice. Mr. J. Cassidy, the Regional Manager of the Ministry for Western Ontario testified that he became involved shortly after Mr. Clark approached Superintendent Parker. He said that before this particular change was settled upon, the Ministry considered certain accommodations suggested by Mr. Clark, including switching staff or giving him, Mr. Clark, days off without pay when his shift cOnfliCted with the Sabbath. In several complex discussions with Mr. Parker which were aimed at deciding what to do to 'accommodate Mr. Clark, Mr. Cassidy stated, the alternatives suggested by Mr. Clark were rejected as being unsuitable to a small institution like the Walkerton Jail. Several other options were considered,, he testified, and each was weighed up in consultation with Mr. Parker. 4 Finally, it was decided that the most feasible solution was-to' change the shift schedule as indicated in the notice. The evidence indicated that the Union was aware'that these deliberations were under way. Mr. E. Small, the then President of the Union Local and one of thegrievors, agreed that the Union was aware that discussions were going on regarding making a change in .the schedule to accommodate Mr. Clark. Moreover, approximately one week before the notice was posted, Mr. Small stated, Mr. Parker called him into his office and mentioned to him a number of the alternatives that management was considering in order to accommodate Mr. Clark's religious beliefs. These alternatives, he stated, included assignment to the kitchen; assignment to . maintenance; assignment to a truck driver position in .another institution; or, assignment to permanent nights. At the time, Mr. Small stated, his impression was that Mr, Clark was going to be given a position in maintenance, which would take him out of the 13-day schedule. There was, however, 'no negotiation with the Union. Mr. Small teStifie~ that the first that he became aware of the'assignment-of Mr. Clark to permanent nights was when the notice was posted on August 19. Shortly thereafter, Mr. Small went on, he went to visit Mr. Parker and reminded him of the obligations of management under the compressed work week agreement. In response, 'he stated, Mr. Parker referred him to the Collective Agreement, Article 10, which provided, inter alia, that a shift schedule may be changed without penalty if notice is given to the employee at least 120 hours in advance of the starting time of the shift as originally scheduled. Mr. Cassidy also referred to Article iO of the Collective Agreement as justifying the unilateral change imposed by management, but he relied primarily upon a different provision thereof, section 10.5 which dealt with maintaining the practice of g~v~ng notice of shift schedules in excess of 15 days. There were more than 15 days between the date of the notice, August 19, and the effective date of the change, September 5, 1988. In their submissions, counsel for the Ministry and the Union made representations regarding the applicability of the provisions of Article 10 of the Collective Agreement referred to by Mr. Parker and Mr. Cassidy; however, it seems to us that detailed analysis of Article 10 is unnecessary in the circumstances of the present case. It is indisputable that under the express provisions of Article 2.1 of the compressed work week agreement which was in effect at the Walkerton Jail at the time of the change, management was obligated to maintain a "13-week scheduling'rotation" of the type reflected in Appendix "A"" of the agreement. When management unilaterally changed this rotation to what Was essentially a 12-week arrangement, it breached the requirements of Article 2.1. There was a submission by the Employer that nevertheless, the relevant provisions of Article 10 of the Collective Agreement could 6 be relied upon by the Ministry because they were not 'expressly excluded by the compressed ~ork week agreement. In this ~eGard it was pointed out that the latter agreement did, in fact, eXpressly~ exclude Article 10.2. If the parties had wished to ~exclude the other parts of Article 10, it was submitted, they likewise would' have expressly excluded them. But here, the enforcement of Article 2.1 does not binGe'upon th~ express exclusion of any provisions of Article 10 of the Collective AGreement. Indeed, in appropriate circumstances, Article 10 may apply. But Article 10 cannot be applied in a' way which would result 'in invalidating an express provision of the compressed work week agreement like Article 2.1.' Under the usual canons of construction, the. more specific provision takes precedence over the ~ moreT General. Here, the more specific provision is undoubtedly ~rticle 2.1, 'and it expressly requires a 13-week scheduling rotation of the type reflected in Appendix "A". Reference was made to the need for some flexibility 'in the interpretation of the schedule established in Article 2.1--for purposes of accommodating increases or decreases in the complement of General Correctional Officers at the Jail. We agree. A change in complement inevitably requires a change in shift schedule. ~ Because of this, a board of arbitration might be inclined to imply a term into the compressed Work week arrangement that the schedule eStablished in Article 2.1 be subject tochanGe in accordance with 7 increases or decreases in staff. The reason is that it seems likely that had this prospect been brought to mind at the time ~he parties entered into the a~reement they would have immediately agreed that, of course, the schedule would have to be amended to reflect such a change. But here, that was not the case. A change to the shift schedule was not inevitable, as it would be with an~increase or decrease in complement. Several alternative accommodations of Mr. Clark might have been pursued. They might not have 'been equally attractive to management, but they would not have involved altering the shift schedule. Given the existence of such alternatives, we cannot say that had the possibility of a need for religious accommodation been brought to mind when the parties negotiated the compressed workweek a~re~m~nt, they would immediately-have agreed that, of course, accommodation would be made by changing the shift schedule. Reference also was made to ~he difficult position in which the Ministry found itself by virtue of the necessity to accommodate Mr. Clark under the requirements of the Ontario Human Rights Code. The Board does not hesitate to agree that it was, indeed, a difficult situation. Under Re Ontario Human Rights Commission and SimDsons- Sears Ltd. (1985), 9.3 DLR (4d) 321 (Supreme Court of Canada), it was the duty of the Ministry "to take reasonable steps to accommodate the complainant, short of undue hardship: in other 8 words,, to take such..steps as may be reasonable to accommodate without undue interference in .the operation of the employer's business, and without undue expense to the employer." Id. p. 335. tt was. not, as was stressed by counsel for the Min~try, the duty of the Union. But we do not agree that this duty thereby empowered the Ministry to ignor'e the express provisions of agreements which the Ministry duly .entered into ·with the Union. Counsel for the Ministry relied upon Re Singh and Ministry'of Correctional Services (1980), G.S.B. #240/79 (Eberts). In that case, the religioUs practices of a Correctional .Officer required ..... him to wear a beard. This interfered with his ability to wear protective equipment such as a face mask in emergency situations. The Ministry removed him frc~ general Correctional Officer duties and sought to accomo.date him by offerin9 him ·less remunera.tive employment. The BOard·rejected .this accommodation, stating: ...We are not satisfied that it would be an undue hardship for the Ministry to 'find an alternative position for Mr. Singh that would ensure accommodation of his religious beliefs and practices without-undue hardship to him .... We think that the Ministry should, right at the outset, have made greater efforts to find Mr. Singh an appropriate position, the same as or equivalent to a .correctional officer II~ instead of demoting him. At this time, we do not presume to tell the Ministry what exact job it should give Mr. Singh. We do think it proper and fair, however, that he should have is correctional officer II salary, retroactively, and into the future as well. The Ministry can now make appropriate efforts to find him a proper position at the correctional officer II level, or 'equivalent ..... Id. at pp. 23-4. It was submitted .that this indicated that the Board intended for 9 the Ministry to ignore the requirements of the Collective Agreement in searching out adequate accommodation for Mr. $ingh. It seems to us that to reach this conclusion would be an unwarranted extension of the ratio of ~in~h. Nowhere in the context of. its award did the Board suggest that the requirements of the Collective Agreement might 'unilaterally be ignored by the Employer. It seems more likely that since in that case, the Union was representing Mr. Singh, the Board contemplated that the Union would provide the Ministry with any waiver of-the job posting, etc. provisions necessary to achieve an appropriate alternative placement for the' grievor. It was suGGested that' when the. health and safety requirements~ in Singh and the shift schedule in the present case came into conflict with the employees' religious beliefs~ they were rendered unenforceable as illegal or against publi~ policy, and therefore could be ignored in accommodating the employees. We do not agree. As is the case here, SinGh was an "adverse effects" discrimination case. That is, the health and safety requirements in SinGh and the shift schedule set forth in the present case were entirely benign on their faces~ They were not aimed at discriminating against anyone. It was only as appl'ied to a particular individual that they created an adverse effect placing the duty of the employee in conflict iwith his or her religious beliefs. In such cases, the Human RiGhts Code does not render the 10 health and~'safety standard or the provision of ~the agreement unenforceable due to illegality. They remain completely enforceable, so long as they bear a reasonable relationship to requirements of the job. Ail that the law does is to require-the employer to take reasonable steps to accommodate~the ,religious needs of.the employee-, short of undue hardship to the employer the conduct of its business. Accordingly, the obligation of management under Article 2.1 of the compressed work' week agreement to provide a 13-week scheduiing rotation was breached when management' unilaterally changed it to what was essentially a 12-week rotation, and the. Board hereby issues a declaration to this effect. In order to make this change, it would have been necessary for management to obtai~ the agreement of .the Union. Failing that, another alternative which'did not involve-the breach of a contractual obligation should have been chosenl We decline, however, to go. beyond the issuance of this declaration and award damages to the individual grieVors. We have considered the evidence of several of the grievors that they were inconvenienced in different ways by the unilateral'change in the shift schedule. In counter-balance to this, however, is the evidence of, e.g., Mr. Cassidy, that certain benefits might also 'have resulted. Also relevant, is the fact that the precise shift 'schedule set forth in Schedule "A" to the compressed work'week agreement was merely a "reflection" of the type of-schedule that management had to provide. So long as management retained the same type of schedule with a t3-day rotation, it retained the power, subject only to the applicable portions of Article 10 of the Collective Agreement, to change~ the schedules of individual employees regardless of whether inconveniences resulted. Considering all of these factors together, the Board is led to conclude that it would be inappropriate to award damages. DATED at London, Ontario, this 7th day of Aagust 1990. R. J. ~.ober~s, Vice-Chairperson F.~ Taylor, · '~' / Member E. Orsini, Member