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HomeMy WebLinkAbout1989-1593.Mattison.90-06-18 ONTARIO EMPL 0 ¥~S DE LA COURONNE CROWN EMPL 0 YEES DE L'ON TAF~tO GRIEVANCE C,OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, ~U~TE 2100, TORONTO, ONTARtO, M5G 1Z8 TELEPHONE/TELC~PHONE: i415] 32E-1388 ;80, RUE DUNDAS OUEST, BUREAU 2~'00, TORONTO (ONTARIO). MSG '~Z8 FACSIMJLE/TEL~COPJE . (4;'5) 325-~396 1593/89 IN THE MATTER OF AN ARBITRATION Under THE CBOWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN: OPSEU (Mattison) Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer - and - BEFORE: M.V. Watters Vice-Chairperson G. Majesky Member F. Collict Member FOR THE K. Whitaker GRIEVOR: Counsel Ruder, Whitaker, Wright' and Chapman Barristers & Solicitors FOR THE M. Galway EMPLOYER: Staff Relations Officer Ministry of Correctional Services HEARING: April 27, 1990 DECISIO'N This proceeding arises from the grievance o~ Ms. Nicole f,tatCison dated November 29, 1989, the material part of which re. ads as follows: '$TATEI4EN[ C,~ GRIEVANCE 7he Employer has violated article 11 of t~e collective agreement. SETTLEMENT DESIRED To' De credited for shift premiums loc all sh~fts worked since August 8th., 19S9 and ~nterest a% the pcevai]]ng Dank rate." The 9rievor 9ave evidence on behalf of the Union. The Employer elected against calling9 any evidence. The facts sur"oundin9 %he grievance, which were not substantially in dis3ute, ma>' be stated as follows: (]) The 9rievor is a Correctional Officer 2 at the Metro East Detention Centre. Her seniority date is September 27, 1978. (ii) On June 16, ~988, the grievor suffered an injury to her Oack which was work related. Ultimately, she was rated for a fifteen percent (15%) oermanen% disability person by Workers' Compensation Board. That BoaFd imposed certain restrictions on the nature of the work which %he grievor could suOseduently perWorm. These included no running, bending, standing for long periods, climbing or lifting e~cess of five 53 k~io9rams. The griever returned %o work 1 in November 1988 for an elgt~t (~) week period foi]ow'ir~g which she was again off due to her' compensabIe injury. In early t989, the Ernolo/,'er- posted for several serr,~- permanent ~i~h't sr~-~ pos~t~ons. The ~.os~on requn,~ed ~ne working of s~r'a~gh~ ~;~ghbs between i~-0C p.m. and 7-'00 a.m. On ~he suggestion of her Wo~'kers' ~ ~ on ~omp~nsati aC',,,isor, the 9r~evor a.p~i~ed f'or one (1) of' these positions. Z% was her belief t.!qat the natu¢'e-of' 'the work done on such be m~ore in mccord wi'3~ the ph.,.'s~ca] r-estcict-,ons ~ch had been ~mcosed on her activities, l~ was the grie~.or's evidence ~nat the night shift required little direct contact with inmabes. Additionally, she stated that ~ne tasks of such sb~ft ~ou]d be ]ess strenuous. Prior to her inOury, the 9re,yon had worked cota'bin9 shifts wfithin the institution. The 9r~evor was unsuccessful in obtaining tr:e assignment. T~e matter was subsequently grieved on February ~, ~989. She alleged therein tha~ the Employer had vioiated article !8.1 of the collective agr-eement (Health and Safety) and claimed "to be assigned semi-permanent night shift," Tn~s grievance was ultimately resolved b~ the s~gning of a Memorandum Of Settlement dated March ~3, t989 w~ich read part: " Without prejudice and without precedent the parties agree to the fo!low~ng terms as full and final settlement of %he above'noted grievance. 1. Upon re,2eiot of a medical c, er~f~cate from a medicai practitioner indicating tF, e gr~evor is &bte to perform all of ~he duL~es aha cesponslb}}~t~es of ~x COt'rec;biot~! off~ce,-, Simmson agrees bo put %he g'rievor on a semi permanent night shift for ~ pet-iod of six commencing April 3, 1989. The un'~on and ~he 9r~evor ~gree ~o w~thdraw %he grievance de. ted February 1, v Ti~e gr~evor was una, ble Co commence work on Ap,~]] 3, 13c°- pur~ua¢.*~ ..~ %c. the ~e~m=, .~ o¢, se~.~=mant_, , ...a~ about c~me, she ex. perqenced a 'tragic deat. r~ w}%~qr~ her ¢~m:~y. She subsequently nad further physica~ difficulties re]a~ed her compensable condition. The 9r~evor even%ua~iX ~=~" , ..bJ. i}ec' %o ~ork on Augus~ 8, 1989. S~nce that ~me she has worked 5he 7:00 p.m. %o 7-00 a.m. shift on a co¢%inuous bas~s. initia~ six (6) month period referred ~o in %iqe Hemorandum of Settlement has been twice extended, ¢~rst ~o Ha¢cn !990 and mos% r'ecent'~y %ili September 1990. Zt is apparent from ~he evidence, and %he documemSa~ion flied with bhe Board, that the grievor's requests for these extensions were 2remised on her medical condition. At present, only 9rievor and one other employee work semi-permanent nights. That ~ype of shift schedule was eliminated w~tt~ the introduction of %he bwelve (12) hour shift in April, 1989. vi) The grievor testified that other employees have been offered the opportunity Co engage ~n 'ii~h~ duties on shifts obi~er than the night shift. A Similar proposal has no% been extended in her case. 2~ was the gr~evor's evidence she does 'not prefer to work %he n~ght, shi~t. Rattier, her sole reason in working such sh~ft is ti~at it provides her w~t~h r~he opportunity t~ do }~ht. wor~ cons]stent w~th r, er Dhy~icai l'~mi tab~ons. (vii The 9rievor WaS pa~d sh;f% premium pursuant bo art;cie 11.1.2 of the collective agreement for- the f~rs% five (5) weeks after her return t,3 %he fac~]~uy ~n August., 1989. Zt was ~he E~-~p]o':/er'~s .aecos-;o~ %o %eF-~,ina%e suc~ p~ymen~ which led to ~he f~]r)g of ~Fle ins~arlt 9r;e.,,ai~ce, The re'levant paragraphs of Article 11 relating %o Shift PreMium read: 11.i.2 Notw~thstan~in9 !1,?.i, effective March 16, t987, an employee shall receive a sh~f~ mremium of lift. y- five cents ($0.55) per hour for all hours worked ~etween m~dnight amd 7:00 a.m. Where more than fift. y percent (50%) of the hours worked fal~ ~,~%~'..~r- ~.h~s period, the f'ifty~f~ve cent5 ($0.55j per hour' premium shal~ be paid for: ali hours worked. ShiFt premium shall no~ be paid ~o an emOioyee who for mutually agreed upon reasons works a shift for which he would otherwise be entitled to a smift prep1 The issue presented to the Board :r~ th;s case ~s whe~,her the gr~evor and the Employer "mutually agreea" that ~he former would work the night, shift, sucia that article 11.4 would exclude enti~lemen~ %o shift premium. The parties were ;n agreement that, bu~ fo,- that. provision, shift premium would have been payable under ~rbic}e ~¢.1.2 of Cite collective agreememt. 4 It was %he pos~t~on of ~he Un'ion tha~ the gr~evor's ~nterest ~a$ in securing ~i9h~ ~ut~es, Counsel sd~m~gted tl3e ev'idence conf~rmed thab she had no other interest ~n exc]as~vety ~or-k'~n~ ~i~e night s~ift, indeed, net pr-efer'ence v, as ~o ~ork the other s~i'fts as she had done pr]or %o %hie injury. The Boarc ~as referred t.o sections 4, 15 and ~5 of she Human R~qnt~ Code, R.S.O. lgSO, ChapOer 53, as amended. Course') argued %haC effect of these seotqons was to obligav, e th?s E~p~oye¢ to accommodate a disaD]ed emp-loyee, such as the gr~evo¢, by p¢ov~ding' suitable work ~n accordance with their medical restrictions, un]ess such accommodation would create a situation of undue hardship. It was submitted that the Em~ioye~-, D]ac~ng the grievor on light du~es on the n~ght shift, had acte~ to satisfy ~%s ~eq~i¢ements under th~s s~atut, ory mandate, Counsel for the Union' emphasize~ that t, h3s grievor had not been offered a~ternative hours. He argued that ~% would, thefefore? be ineeuitab]e in these circumstances to pefmit the EmDqoyer to avoid the payment of shift premium, in summary, ~ was the Union's posit;on that .the 9r~evor d~d not require Or prefer work Of 1 ti3e nTght s~i~t and that her assignment to same was ~n resoonse, at ]east paftia]~¥~ to the requirements placed on the Employer by the Human Riqhts Code. The Board was presented the awards in McCormick, 52/88 (Spr~ngate) and F~tchett Shannom, 953, 964/85 (Gandz) in support of ~he aforementioned arguments. in response, it was the Employer's posit;-;on that the facts of thls case felt squarely withi~ %he exoe~t~()n .contained ar't~c~e ~t.4. More specific, ally, ~t was submNtted that ~he 9¢ievor and %he Employer had 'mutually agreed" that. she worx the nigi~t sni¢~. Reference was made in ~.he regard to the Memorandum Of Settlement and the s'ubsesuenc requests of ex'Ze,-~s]ons to the slx (6i mon~ta per']od provided 'for %here~n. The ~epre~en'~a~ve of ~h~ Employer argued ~ha~ t~he r_aso.,s ~'or such an agreement were 1rte'levant in the deZerm~nat-ion as Co sheet srern-,um was payable. Wha; was of 9re the fact ~hat an agreemen~ had indeed been concluded. The 2mmioyer relied on Goedhuis, 482/82 (Kruger) as well Eitohe%t and Shannon, pr-eviously c~bed. In :itchett and Shannon, the Board adopted the ~nter~.-eCat~on of article 1!.4 which ham been a~vancea Dy' ~he Emoloyer. The Employer's policy in that c~se, as described ~% page eleven (11) of the award, w~s as'follows: When the employer requires a certain shift oF shift schedule %o be worked, i~ pays a premium whether oF no~ the ind]v~dua~ prefers that. particular shif~ or sh'~ft schedule. When the ]nd~vidua~ requires a certain shif~ oF shift schedule, and the employer acmuiesces qn %hat desire, the sh.i~t mremium is not paid. Bo'F. i3 De. rtles in this case treated the above-st, abem inmerpretation as an accurate reflection of the intent of article 11.&. They na%ur'a~qy disagreed, however, as to how the article shou!d be It ~s the juclgmenL of the Beard t!',a~ article t~ ~nasD]~cable' to t~le g~evor's c~-cumsta~ces. We tn~nk it clear from the evidence presented thaL she was p~imac]]y inter-es%ed the night, shift solely because of the ava-~]abi:~t, 7 3¢ light duties consistent wi~i~ her physical res~r'~ct~or, s. sqml~arly apparen~ %hat she was no'< attracted ~o %?~e Der se fo~ persor~al reasons unre'}ated %e her s[ate th~s sense, the grievo,-'s ,"equest caq de distlngu]shed f~-o~ a situat)of3 7r-~ xh,ch a par.~]cuiar sh-ift is soughs simp]y as a matter o¢ pe~sona~ preferer~ce o~- ccnven~erace. The 9r'iev. or's evidence was that she would have preferred to work as she had Oone pr;or to t!~e :n3ury, but such were ¢-~ot offered either at the t~me o¢ %he settlement o¢ tr~ereaY%er'. We'no%e 9er further evidence tha% ]sgh% duties exes%ed on oSher shifts and that other ir]jured ems'~oyees had been assigned to same occasion. The Board, on the bas~s of ali of ti~e ev,dence, has no doubt Shat %~e grievor would not nave se'lected a t-eg]men of s,traight nights laad she bee~ given another optaon. We a~-e, therefore, unabTe to conclude tDa% %he 9¢Jevor "resuired" the night, shift as expressed ~n Fitchett. and Shanno;n. It frs cIear from %he facts that t?~e Srievom ag~'-eed to work she night s~ift. We disagree with the submission of the Employer that the Board cannot explore the ~easo;*,s su¢,'"ounci~9 such ~greeme~t. In our estimation, s¢¢h a~ ana'lys*;s is appropriate to e~sufe that the article is a!)p~ed ~n a pur¢os~ve sense. Ii*, th~s .? instance, the grtevof in~.tiatiy ~pDil~d TOt" L~ DC:,SI'B4Orq on r~ieht Shif~ ~n early 19S9 Had she oeen suc';cessful ~t~ ~, acp~ca~on, the Employer would have been .mb~ged to pay premium p,.,csuant ~o art.~cle 11.1.2. The 9r~e.'or's !ack; of succes~ led to the fi i~r~g of ti~e gr~evar~ce da%ed Febr'dar'y i, 1989. ~haC step, i n %urr,, resu! ted '~ rn %f,e ~'e~f,or'andiJm Of Se~t:ement date~ Mar~ch 1~ ~_~.9 ~s ~nd~c~.ted abo"e she was .r'~ff'e:~ed 'i';.8~t dz~,t~es o~ any o%her s~¢t a% %hat t.~me. ~t does not. aDoea~ tha% Che :ssue of sh~='~ ~,-em}um was ,.n_ ~ ttlement discussions whish fed to net ~lacemen~ on nigh% stq'~f~. These fac~s are hoc cons~s~e~ w~t.h ~n in%en~ on ~he part of ~he 9rievc. r %o waive a~y c~a~m she migh% have had sh~f~ premium. We ~hink, qn %he c:rcums%ar,.ges of ~n~s case, Empqoy'er should have raised the issue of ¢~trt.'lemenC ~o premium if i% was dn~ending ~o ~.ake %he pos~%io~ tha% 1% would ~o% be payable. Cot, sleeting i%s fa~'iure ~o do sc, as we!! as positive ob~iga%ions imposed by %he Huma~ R]qh~s Code, we ~ba% i% would be inequi%aO!e to permir, the Employer t.~ ~ape paymen~ of the shif% premium i~ ~h~s case, Thls is so 9ive~ our accep%ance o¢ ~ne gr~evor's evidence Chat she wou}d h~ve preferred ~o work on o%her sh~f~s bag ii9h% dd~es been made Zm summary, the 8oard conclures b!qat she gF',evor la entitled to sr~ift premium as of her return ~..o ~ne workplace in August, 1989. We leave 8 owing. We retain juKisd~cthon '~n the ever~'t dqff~,~.:~it~es E~'~,~,'~''J O~ted aZ ~',"~,qcso,~ , O~'l~rlo 18th oaf of june ? !':.:O. G. ~aje~ky,. Member "I Dissent" (Dissent attached) F. Collict, Member 9 DISSENT G.S.B. ~1593-89 (MATTISON) From a purely administrative viewpoint, it is probable that this Member of the panel would have paid the shift premiums to Ms Mattison, without prejudice. The shift in question is a 12-hour shift, on nights, and normally would attract shift premium. The case is unusual and under most other circumstances when an employee is so assigned for personal accommodation purposes, the shift premium would not be paid, owing to the language of Article 11.4. In this case, however, Ms Mattison did not wish to work nights; but she did wish to work; and a personal accommodation was provided to her in the form of an irregular, semi-permanent 'night shift that had activities of a nature that she could perform. In as much as the arrangement reached was on a mutually agreed upon basis, the shift premium was denied to her as per Article 11.4. Given the language of the Collective Agreement, however, and given the apparent failure of the parties to reach an agreement on the issue in the grievance, the panel is left'with the matter and the decision must be reached on the basis of the facts and the applicable agreement language. 1. In the view of this Member, the case turns on two issues: The~e are as follows: (a) Was it or was it not a requirement of the employer to schedule the subject 12-hour shift? If it was, then, as per GSB #963/85 at page 11, lines 4 to 7, the employer pays the shift premium. (b) Was the subject 12-hour shift established and scheduled "... for mutually agreed upon reasons ..." (Article 11.4 2 of the Collective Agreement)? If it was, the shift premium should not be paid. 2. Was it or was it not a requirement of the employer to schedule the subject 12-hour shift? (a) As per Section 16 of the Human Rights Code, it is clear that the employer has the requirement to provide "reasonable accommodation" at work for an individual with a "handicap" (Section 4). However, such an obligation does not, of itself, transform a potential work schedule (the 12-hour shift in question) into a shift required by ~ana~ement. To properly characterize the 12-hour shift, it is a shift established by management to "reasonably accommodate" the handicapped employee. It is not a "required" shift in the sense that it is necessary for the employer to perform the "work" of the Institution. Accordingly, one may conclude that it is not a shift required by the employer and that, therefore, as per GSB #963/85 at page 11, lines 4 to 7, it does not attract shift premium. (b) Section 46 of the Human Rights Code does indeed have primacy over CECBA. However, this relates more to a containment of management's right to schedule or not to schedule employees. Section 46 requires nothing specific relative to the matter of compensation and whether shift premium will or will not be paid. Certainly, Section 46 does not convert a "possible shift" into a "required" shift. (c) only two people work this subject 12-hour non-permanent 3 night shift. This is not a normal shift or requirement of the employer. 3. Was the subject 12-hour shift established and scheduled "... for mutually agreed upon basis ..." (Article 11.4)? (a) Article 11.4 is completely silent as to the reasons why the parties might arrive at a mutual agreement. As per GSB #482/82 "mutual agreement" means basically just that, and that alone - with no qualification. (b) As stated at page 8 of GSB #482/82 - "Had the Employer asked Mr. Goedhuis to accept time off in lieu of cash he would have had every right to refuse without any requirement that he consider the matter or justify his refusal". In similar fashion, Ms Mattison could very well have declined the 12-hour shift o~ nights either for physical reasons or because of the emotional stresses that had recently affected her health. The fact that it was open to Ms Mattison to accept or decline the subject 12-hour schedule, as per GSB #482/82, would support the argument that acceptance of the 12-hour shift was "... for mutually agreed upon reasons ..." and the matter, therefore falls squarely within Article 11.4 4. Article 5.5 of the Collective Agreement in the Pay Administration Section provides for a different method of wage payment - "for reasons of health". This same type of provision could have been included in Section II relative to shift premium, had this been the intent of the .parties. However, no such provision was provided to ensure the payment of shift- premium when an employee was assigned to a shift "for health reasons". The Section is completely silent on the matter. In view of all of the above, this Member would have dismissed the subject grievance. The 12-hour shift was not a required shift, and there was mutual agreement that the grievor would work this shift. As a result, shift premium is not payable as per Article 11.4 of the Collective Agreement.