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HomeMy WebLinkAbout1989-1115.Willis, O'Connell, Cameron et al.90-12-12 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L 'ONTARIO GRIEVANCE C,OMMISSION DE S I'TLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STRE~ WEST S~TE 21~, T~ONTO, ONTAR~. MSG 1Z8 TE~ONE/TEL£PHONE: (416) ~6- 1388 180. RUE DUNDAS OUEST, BUREAU 21~, TORO~O (ONTAR~), M5G 1Z8 FACSIMILE/T~COmE : (475) ~6-1396 1115/89,~~ IN THE MATTER OF AN ARBITP~TZON Under THE CROWN EMPLOYEES COLLECTIVE BARG~ININ~ ~CT Before THE GRIEV]~NCE SETTLEMENT BOARD BETWEEN OPSEU (Willis/O'Connell/ Cameron et al) Grievor - and- The Crown in Right of Ontario (Ministry of Correctional Services) Employer BEFORE: R.L. Verity Vice-Chairperson E. Seymour Member D. Daugharty' Member FOR THE P. Cavalluzzo ~RIEVOR Counsel Cavalluzzo, Hayes & Lennon Barristers & Solicitors FOR THE J. Vair EMPLOYER .Counsel Mathews, Dinsdale & Clark Barristers & Solicitors HEARING: January 31, 1990 October 17, 1990 DECISION This matter was heard as a consolidation of two separate groups of grievances arising from the same facts. A group of three grievances ~1115/89 alleges a violation of Article 8.1 of the Collective Agreement while a second group of 16 grievances #1122/89 alleges a violation of Article 23.5. All grievors work as Correctional Officers at the Elgin-Middlesex Detention Centre in London. On July 13, 1989, the grievors, all of whom were on their regularly scheduled days off, were required to attend a four hour seminar at the Detention Centre on "co~unicable diseases". It was agreed that attendance at the seminar was mandatory, and that ali grievors were paid overtime under Article 13.2 of the Collective Agreement. The relevant provisions of the Collective Agreement read as follows: ARTICLE 8.1 - DAYS OFF 8.1 There shall be two (2) consecutive days off which shall be referred to as scheduled days off, except that days off may be non-consecutive if agreed upon between the employee and the ministry. AoRTICLE 23 - TIME CREDITS WHILE ll~AVELLIN6 23.1 Employees shall be credited with all time spent in travelling outside of working hours when authorized by the ~inistry. 23.2 When travel is by public carrier, time will be credited from one {1) hour before the schedJled time of departure of the carrier until one {1) hour after the actual arrival of the carrier at the destination. 23.3 When travel is by automobile and the employee travels directly from his home or place of employment, time will be credited from the assigned hour of departure until he reaches hisldestination and from the assigned hour of departure from the destination until he reaches his home or place of employment. 23.4 When sleeping accomaodation is provided, the hours between eleven (11:00) p.m. and the regular starting time of the empt'oyee shall not be credited. 23.5 When an employee is required to travel on his regular . day off or a holiday listed in Article 48 (Holidays}, he shall be credited.with a minimum of four (4) hours. 23.6 All travelling time shall be paid at the employee's basic hourly rate or, where mutually agreed, by compensating 1 eave. Briefly summarized, three grievances allege a violation of Article 8.1 because they did not get two consecutive days off on July 12 and 13, 1989 which had been designated as scheduled days off. The remedy requested was a replacement scheduled day off. Sixteen grievances allege a violation of Article 23.5 in that they were denied travel time to attend the seminar. At the outset, the Employer raised a preliminary objection to 'jurisdiction with respect to timeliness. Based on the decision in Wainwright et al. and Ministry of Correctional Services, #717/88 (McCamus), it was allege~ that the Union failed to advance the grievance to arbitration in a timely fashion and accordingly did not comply with the mandatory time limits specified in Articles 27.3.3 and 27.4. Those provisions read: 27.3.3 The Deputy Minister or his designee shall hold a meeting with the employee within fifteen (15) days~ of the receipt of the grievance and shall give the grievor his decision in writing within seven (7) days of the meet i ng. 27.4 If the grievor is not satisfied with the decision of the ~ Deputy Minister or his designee or if he does not receive the decision within the specified time the grievor may apply to the Grievance Settlement Board for a hearing of the grievance within fifteen (15) days of the date he received the decision or within fifteen (15) days of the specified time limit for receiving the decision. The Collective Agreement goes on to provide: 27.13 Where a grievance is not processed within the time allowed or has not been processed by the employee or the Union within the time prescribed it shall beldeemed to have been withdrawn. The Board was advised that the grievances were referred to the Deputy Minister on August 16, 22 and 29, 1989. Similarly, we were told that the stage 2 meeting with the Deputy Minister's designee, Elgin-Middlesex Detention Centre Superintendent Ian Starkie, was held on September 7, 1989. However, Mr. Starkie's decision was not issued until October 5, 1989. On October 17, 1989, the Grievance Settlement Board received alt t9 grievances submitted by the Union. The Employer contends, on the basis of the Wainwright decision, that the maximum time for submitting a grievance to the Grievance Settlement Board is 37 days from the date of the receipt of the grievance by'the Deputy Minister (15 days and 7 days respectively under 27.3.3 and 15 days under 27.4). In the instant matter, the Employer calculated the time range from 49 days {0 62 days. Briefly stated, the Employer faults the Union for its failure to carry the grievances forward to arbitration prior to receipt of the stalge 2 written reply. With respect, we cannot agree. We do not read the Wainwright decision as saying that in all cases the maximin time limit from the receipt of the grievance by the Deputy Minister or his designee is 37 days. In Wainwright, the Board was not called upon to consider a situation where the stage 2 reply was late. In the instant matter, it was the Deputy Minister's designee, Mr. Starkie, who failed to meet the seven day time limit for giving a written decision following the stage 2 meeting. In these particular circumstances, the Union is under no obligation to advance the matter by proceeding to arbitration in the absence of a stage 2 reply. In OPSEU (Taylor) and Ministry of Correctional Services, 1077/89 (Samuels), the Board lwas called upon to determine what appears to be the identical issue. In that case, the Deputy Minister's designee did not meet the time limit for giving the stage 2 reply and the grievance proceeded to arbitration beyond the 37 day time frame but within the 15 days following receipt of the reply. Counsel for the Ministry argued that under Article 27.4 the grievance must be submitted to the Grievance Settlement Board on the earlier of the two dates mentioned in Article 27.4. In rejecting that~ argument, Vice-Chairperson Samuels gave the following rationale at pp. 3 and 4: Article 27.4 does not say that the grievance must be submitted b~ the earlier of the dates mentioned. Instead, the provision gives two distinct time limits - within 15 days of receipt of the Stage Two reply,' or within 15 days of the date on which the Stage Two rep~y oug~-~-to have been given. This means that, if the Stage Two reply is given early, the grievor may still wait to submit the grievance to the Board until 15 days after the date on which the Stage Two reply ought to have. been given. On the other hand, if the reply is received late, as it was here, the grievor then has 15 days after receiving the reply to submit the grievance to the Board. In our view, the language of Article 27.4 says this, and it makes good sense that the parties would say this. There is good reason to extend the time for submission to the Board when the Stage Two reply is late. The grievor should have the opportunity to see the reply before having to decide whether to submit the grievance to the Board. The reply may turn out to be favorable. If the grievor submits the grievance to the Board before receiving the reply, there will have been a waste of effort on the part of the Union and the grievor, and a waste of time by the Board in receiving ithe grievance. Even if the reply turns out to be against the grievor, the grievor should have an opportunity to consider the reply, and the reasons therein, before deciding whether to proceed to the Grievance Settlement Board. Stage Two is intended to be a meaningful step in the grievance procedure. This }rep involves two elements - a meeting between the Deputy Minister or his designee and the grievor, and a decision in writing by the Deputy Minister or his designee. The step is not over until both elements have been completed. Generally, the submission of the grievance to the Board should not take place until Stage Two is over. This Panel adopts the Samuels rationale and accordingly the preliminary objection is dismissed. The hearing proceeded with the evidence of Ken Cameron as the irepresentative grievor and the testimony of Elgin-Middlesex Superintendent Ian Starkie on behalf of the Employer. Mr. Cameron testified that he works two weeks nights followed by two weeks days and that his schedule is posted 15 days in advance. He works 12 hour shifts from 7:00 p.m. to'7:00 a.m. {nights)and from 7:00 a.m. to 7:00 p.m. (days). On June 21, 1989, he was given written notice of the seminar to be held at the centre from 8:00 to 12:00 on July I3, 1989r and that attendrance at the seminar was mandatory. Mr. Cameron had been previously scheduled to work nights beginning Monday, July 10 and to take.regular days off on Wednesday, July 12 and Thursday, July 13. He was scheduled to return to work on Friday, July 14 at 7:00 p.m. According to his evidence, all i6 grievors attended the seminar on July 13 and all were on regularly scheduled days off. He claims both entitlement to travel time under 23.5 and a rescheduled day off under 8.1. Superintendent Ian Starkie gave evidence that the Ministry funded the seminar on an overtime basis and that employees were paid accordingly. The intent was to provide training in coramunicable diseases as quickly as possible on regularly scheduled days off. However, Mr. Starkie candidly acknowledged that the seminar could have been scheduled during normal working hours. Mr. Starkie had concerns that if the seminar was scheduled during the employees normal working hours, the security of the institution may have been at risk by the use of too many casual staff. The Superintendent testified that employees are not paid travel time for any form of overtime work at the centre, although if training'takes place at an "offsite location" travel time is normally paid. The Union's argument is that when an employee is required to travel to a mandatory overtime assignment on a scheduled day off outside of working hours, then he is entitled to pay a minimum of four hours travel time pursuant to Article 23.5. The Employer contends there is no such entitlement. The crux of the dispute appears 'to be whether or not the Employer has authorized the travel time by virtue of the mandatory assignment. The entitlement to benefits under Article 23.5 has been considered by numerous panels of the Grievance Settlement Board. The somewhat conflicting jurisprudence has been thoughtfully analyzed by Chairperson Gorsky in OPSEU (A.W. MacArthur) and Ministry of Transportation and Communications, 555.84. Mr. Gorsky ~m'akes it clear that Article 23.5 must be read in the context of Article 23.1 .In coming to that conclusion he adopts tha~ rationale of Vice-Chairperson Linden in Haddock and Campbell and Ministry of Transportation and Communications, 104/80 where it is stated at p. 4: Employees ~re paid additionally for travelling only when it occurs outside of ordinary working hours and then only when it is specifically authorized by the Ministry. (Article 23.1). In the instant matter, the employees were required to work outside of ordinary working hours; however, there was no specific authorization of travel time by the Ministry. In our view, the key to entitlement to travel credits is not the mandatory nature of the attendance but rather the fact of specific authorization of travel credits by the Ministry. In the absence of any such Ministry authorization in this case, these grievances must be dismissed. However, the grievances alleging a violatiOn under Article 8.1 are another matter. As indicated previously, the representative grievor Ken Cameron was required to work 12 hour rotating shifts of two weeks nights followed by two weeks days. The night shift commenced at 7:00 p.m. on Monday, July 10. He worked a second 12 hour shift commencing at 7:00 p.m. Tuesday, July 11 which ended at 7:00 a.m. on Wednesday, July 12. He was previously scheduled for two consecutive days off on Wednesday, July 12 and Thursday, July 13 and was not required to return to work until 7:00 p.m. on Friday, July 14. It was agreed that Mr. Cameron attended the mandatory seminar at the Detention Centre on July 13, 1989, his regularly scheduled day off. The Union argued that the two consecutive scheduled days off cannot be taken away without violating the provisions of Article 8.1 and that the Grievance Settlement 8oard authorities based on the rationale of Barnfield and Ministry of Transportation and Communications, 67/76 (Swan) linvolved.sched~ling grievances and Were of no assistance in the resolution of this matter. Mr. Cavalluzzo contended that at Elgin-Middlesex Detention Centre the parties intended the work week to run from Monday to the following Sunday. The Employer acknowledged that the Grievance Settlement Board has interpreted Article 8.1 to the effect that within a period of a week there must be two consecutive days off. See for example Fabian et al and Ministry of Transportation and Communications, 1064/85 (Springate). The Employer cites cases such as Jones and Ministry of CorrectiOnal Services, 96/80 (Jolliffe) and Kerr and Ministry of Community and Social Services, 362/80 (Jolliffe) for the proposition that there is no requirement in the Collective Agreement that the work week begin on any particular day of the week. In referring to the July schedule for Correctional Officers at the Elgin-Middlesex Detention Centre (Exhibit 4) Mr. Vair argued that if the work week began on Wednesday, Thursday, Friday or Saturday all grievors would have had at least two consecutive days off in each of the weeks in July. The distinguishing feature in this case, we think, is the parties' understanding and expectation as to the composition of the work week. We are satisfied that the intention was that the work week was to co~ence Monday and end Sunday. The scheduled days off for all three grievors was Wednesday, July 12 and Thursday, July 13. Accordingly, Mr. Cameron who worked the night shift on July 10 and July 11 had the right to expect that he would not be scheduled to work on either the Wednesday or Thursday. The fact that he was required to attend the seminar on July 13 was a violation of the provisions of Article 8.1. Accordingly the grievance is upheld. By way of remedy, the grievor shall be given a replacement day off. DATED at Brantford, Ontario, this t~Chday of December , 1990. R. L. VERITY, Q.C. - VICE-CHAIRPERSON E. SEYMOUR - MEMBER