HomeMy WebLinkAbout1989-1988.Sizaire et al.91-01-17 ONTA RIO '~MPL OYEs 0£ ~A COU~ONNE
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GRIEVANCE COMMISSION DE
SE~rLEMENT Ri=GLEMENT
BOARD DES GRIEFS "
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1988/89,
194/89, 29/90
IN THE MATTER OF AN ARBITRATION
Un,er
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Sizaire et al)
Grievor
- and -
The Crown in ~ight of Ontario
(Ministry of Community and Social Services)
Employer
S. Stewart Vice-Chairperson
M. Vorster Member
C. Linton Member
FOR THE R. Stephenson
GRIEWOR Counsel
Gowling, Strathy & Henderson
Barristers & Solicitors
FOR THE S. Patterso~
EMPLOYER Counsel
Legal Services Branch
Ministry of Community &
Social Services
HEARING: June 28, 1990
DEC I SION
The grievors are all residential counsellors
employed at the Oxford Regional Centre, "the Centre".
Their grievances arise from the fact that they were all
scheduled to work an additional day during a seven day
period. That is, they were required to work six out of
seven days rather th'an five days out of seven.
The relevant facts giving rise to the grievance are not
in dispute. The Centre has had a long standing practice of
scheduling employees to work five days out of seven on the
basis of a Sunday to Saturday work week~ In November,
1989, it was. decided that effective December 11, 1989, the
work schedule of the employees at the Centre would be based
on a Monday to Sunday work week which is the norm in the
provincial civil service.
Ms. L. Cheyne, who is a member of the bargaining unit,
was called by the employer to give evidence and was the.
only witness who testified at the hearing. Ms. Cheyne
stated that she was. instructed to establish the new
schedule by looking back over the last four pay periods of
the schedule to determine the number of days that employees
had worked. On that basis she determined who had days
"~wing" and who was "owed" days and she assigned days off,
providing some employees with three days off, some with two
days off and the remainder with one day off during a one
week period~ Ms. Cheyne acknowledged ,that the rresuits of
this process.would vary depending on the number of weeks
chosen to determine which persons had days off "owing".
For example, going back six weeks rather than four weeks,
the result may well have been, for example, that an
employee who was given one day off under the new schedule
would have been given two days off. For one unit She did
in fact go back six pay periods. The rationale for this
approach was that on that unit the new' schedule was .....
implemented two weeks later and she wished to have all of
her calculations have a common start date.
The grievors claim overtime pay for the additional day
worked and, in addition, claim that they should be granted
two lieu days. This latter aspect of the relief claimed is
based on ~t~he premise that all employees should be granted
the maximum number of days off that any employee received.
The relevant provision of the Collective Agreement are
Articles 8.1, 13.1 and 13.2, which provide as follows:
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.
13.1 The overtime rate for the purposes of this
Agreement shall be one and one-half (1 1/2) times
the employee's basic hourly rate
13.2 In this Article "overtime" means an authorized
3
period of work calculated to the nearest .half-hour
and performed on a scheduled working day in-. addition
to the regular working period, or performed on a
scheduled day(s) off.
Counsel also made reference to s. 18(1) of the Crown
Employees Collective Bargaining Act, the relevant portion
of which provides as follows:
18 (1) Every collective agreement shall be deemed to
provide that it is the exclusive function of the
employer to manage, which function, without limiting
the generality of the foregoing, includes the right
to determine,
(a) employment, appointment, complement, organization,
assignment, discipline, dismissal, suspension, work
methods and procedures, kinds and locations of equip-
ment and classification of positions~...
and such matters will not be the subject of collective
bargaining nor come within the jurisdiction of a board.
On behalf of the Employer, Mr. Patterson acknowledged
that the employees who worked six days:out of seven were
entitled to an overtime premium of time and one-half.
However, it was submitted that the remedy of overtime
payment was specifically provided for in the Collective
Agreement and that no further relief was in order. Mr.
Patterson submitted that the change in the schedule was a
matter which fell within the exclusiv~ rights of the
employer in accordance with s. 18 (1) (a) of the Crown
Employees Collective Bargaining Act and that it was not
within this Board's jurisdiction to determine whether or
not the Employer's actions were reasonable in this
instance. In the alternative, in the event that the Board
4
were to accept that there exits a duty of reasonableness,
it was argued that the matter had been dealt with_ in a
reasonable manner. He referred to a previous decision of
this Board, Da Costa 570/84 (Samuels) which states at p. 12
that:
oo. the essential idea is that an arbitrator is
not to ask whether or not management was correct
in-its decision. Management has the right to
make the wrong decision. But management's decision
must be an exercise in managing the undertaking,
and no more.
On behalf of the Union, Mr. Stephenson submitted that
there was an obligation on the part of.th~ employer to
administer the Collective Agreement in a manner that is
reasonable. It was submitted 'that. in this instance the
manner of determining how employees would be scheduled to
work was an arbitrary process which resulted in an
arbitrary result. It was further argued'that s. 18 (1) of
the Crown Employees Collective Bargaining Act did not
deprive this Board of jurisdiction to determine ti%is
grievance and, ~n support of this position, Mr. Stephenson
referred to Fischuk 0557/87 (Verity) in which the issue was
whether payment to the grievor for work performed on a
statutory holiday had been unreasonably delayed and the
argument that the Board was without jurisdiction to
determine the matter was rejected. At p. 3o of that
decision the'~Board states:
The Board rejects the Employer's argument that.the
issue involves "work methods and procedures" which
5
is within the exclusive authority of management under
s.18 (a) of the [Crown Employees Collective-.Bargaining
Act]. Where the agreement is silent, the ti~ing o~
payment of earned premium benefits is purely an
administrative matter. The grievance before us
involves concern for the administration of the
Collective Agreement and the alleged interpretation
of the combined effect of Articles 1'9.1 and 2.1 of the
Agreement. Under s. 19(1) of the Crown Employees
Collective Bargaining Act the Grievance Settlement
Board is empowered to settle differences between the
parties with regard to "the interpretation, application
or alleged contravention of the agreement, including
any question as to whether the matter is arbitrable".
For these reasons, the Board concludes that we have
jurisdiction to determine the merits. However, the
onus is upon the grievor to establish that payment
was unreasonably delayed.
Mr. Stephenson also referred to the recent decision of
the Ontario Court of Appeal in The Municipality of
Metropolitan Toronto and CUPE Local 43 (unreported decision
dated April 10, 1990) which upheld.the decision of an
arbitrator holding, inter alia, that the employer was
obliged to act reasonably in promulgating rules with
disciplinary consequences. As well, Mr~ Stephenson
referred to the portions of this decision that deal with
the principle of reasonable contract administration and
support the proposition that an employer is obliged to
exercise its discretion in a reasonable manner if the
decision affects rights conferred elsewhere in the
collective agreement.
The d~cision in the ~Metropolitan Toronto. case, supra,
at p. 32, comments on the previous decision of the Court of
Appea~ ~n Re Council of Printing Industries and-.T.P.P.A.U_.
(1983), 42 O.R. (2d) 404 and summarizes its effect as
follows:
In other words, it is not patently unreasonable for
an arbitrator to oblige management to exercise its
discretion reasonably, where to do so unreasonably
would be to create a conflict with or undermine the
rights conferred by some other provision in the
Col lective Agreement.
The decision goes on to reconcile the decision of the Court
of Appeal in _Re Metro Toronto Board of Commissioners of
Police and M.T.P.A. (1981), 33 O.R. (2d) 476 (C.A.) and
makes the following comment at p. 34:
...Holden J.A. [in the' Metro Police case] made
allowance for the case in which powers conferred
on management by a management rights clause
"are...circumscribed by express provision of the
collective agreement". St would seem that this is
exactly the loophole used by this court in R.~e
Council of Printing Industries, supra, to find
a duty to act reasonably. The arb~ator's use
of Article 3.02 and of the "reasonable cause for
discipline" provision in Article 3.O1 (ii) is of
a similar character. In neither of these cases
was the provision relied on entirely [emphasis in
the original~ explicit. However, it does not seem
patently unreasonable to view the collective
agreement in a hotistic manner~ where even manage-
ment rights may be circumscribed in order to avoid
negating or unduly .limiting the scope of other pro-
visions.
With respect to the principle of "reasonable contract
administration" the court states a.t p. 37:
· ..it is 'true that a collective-agreement is an
intricate contract, which attempts to reflect
the outcome of bargaining on a myriad of issues.~
It is also true that parties intent on reaching a
settlement do not always have the time, the
incentive , or the resources to consider the full
implications of each and every phrase. There is,
therefore, a place for some creativity, some recourse
to arbitral princ'iples,~ and some overall notion of
reasonableness.
In this instance, there is a specific provision in the
Collective Agreement, Article 8.1, which pertains to the
facts of this case. Article 8.1 specifically provides that
employees are entitled to two days off. There is no
question that this specific provision of the Collective~
Agreement was violated in this instance and, as conceded by
the Employer, the grigvors are entitled~to premium pay for
the day worked in accordance with Article 13 of the
Collective Agreement. However, the question that must be
addressed is whether the violation of the Collective
Agreement must be characterized more broadly as one which
mandates the additional remedy claimed.
As the authorities referred to us by Mr. Stephenson
make clear, the discretionary rights of an employer
operating under a collective agreement "are not unfettered.
We agree with his submission that certain decisions are
subject to review and that appropriate remedial relief is
in order if it is established that such discretion is
exercised in a manner that is unreasonable, discriminatory,
arbitrary, or in bad faith. While the excerpt from the D_~a
Costa decision referred to above suggests that a more
limited scope of arbitral review is apPropriate, we note
that earlier on in tha{ decisi'on~the Board specifically
indicates its view that the exercise of discretion by the
employer dealing with vacation entitlement in a manner that
was arbitrary, discriminatory or in bad faith would be a
violation of the collective agreement.
In this instance it is clear that there was no bad
faith on the part of the Employer. The Employer was faced
with'the task of implementing a new work schedule which
would inevitably have the result of resulting in some
employees working in excess of five scheduled days. We
agree With Mr. Stephenson. that the only way in which the
Employer could have"allocated "days off" and-':days owing"
with true equality among employees would be to have made
the calculation with respect to each individual employee by
going back to each individual start date, be it one, ten or
.... twenty years back. Instead of undertaking this monumental
administrative task, the scheduling of the first week of
the new schedule was based on the time off that had been
granted over the past four weeks or, in the case of the
unit which commenced the new schedule two weeks later, six
weeks.
Considering that the matter in issue 'in this instance
is the scheduling of one week of work we cannot accept that
"the actions of the Employer can be characterized as
9
arbitrary, discriminatory or unreasonable. Accordingly, we
cannot accept that the claim for entitlement to'two'
additional lieu days is appropriate in the circumstances.
As acknowledged by the Employer, there has been a violation
of Article 8.1 of the Collective Agreement and the grievors
are entitled to premium pay. We retain jurisdiction in the
event that there are any difficulties in calculating the
compensation owing or otherwise in the impl'ementation of
this decision.
Dated at Toronto, this 17.~h- mf i January .-, 1991
S. L. Stewart - Viee-Chairperso~
', I DISSENT" (D~.~.~a-~ a~h-~)
M. Vorster - Member
C. Linton - bl ember
DISSENT BY UNION NOMINEE - MENNO VORSTER
Re: OPSEU (Sizaire, et al) and the Ministry of Community and Social Services
I must respectfully dissent from the award of the majority.
As outlined in the. award, the situation giving rise to the
grievance resulted when the administration oY the Oxford Regional
Centre changed the definition of the work-week in order to
conform with pay periods in the rest of the provincial civil
service. Rather than working from Sunday to Saturday, the
employees' work-week is now from Monday to Sunday.
On instructions from her supervisor, Linda Cheyne testified that
she calculated the number of days off the grievors had received
during the previous 4 pay periods. After MS. Cheyne completed
the task, the employer assigned either 3, 4 or 5 days off in the
pay period following the change-over. This new schedule was,
therefore, based on her calculations of whether employees were
"owed" a day, were "even" or "owed" the employer one day.
However, evidence showed that while Ms. Cheyne made her
calculations based on four previous pay periods for the grievors'
schedule, she had used six pay periods in the ~alcutations for
anothe~ similar unit. Her rationale was that ~he had begun her
calculations at a common start date but that the implementation
date for the second unit was several pay periods later. ~
2
The cho%ce of the number of pay periods used for the calculation
was purely arbitrary but the results could change significantly
with each pay period added or deducted in completing the same
calculations. The schedule placed in evidence for the employees
whose days off in the revised schedule were based on calculations
involving six pay periods show the inaccuracy inherent in the
system used by the employer. If either the first four or the
last four pay periods of this exhibit (#6) were used instead of
all six, twelve of the twenty employees listed would be entitled
to a different number of days than those they actually received.
This hit-and-miss approach can ~ot be construed as an accurate
calculation of an employees entitlement under Article 8.1 of the
collective agreement, which reads:
"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."
At the hearing, the employer announced that those who were
scheduled to receive only three d~ym off after the changeover
would receive one day's pay at the overtime rate. This is to
apply to employees who appear to owe one day as a result of using
4 pay periods for the calculation.
Because of the phenomenon shown above, however, .any specific
employee may not owe a day at all or may in fact be entitled to
an extra day off. In other words, the same employee who appears
to be entitled to only 3 days off may be entitled to 5 days off
if the calculation period used had been 2, 8, 12 or any other
number of pay periods... Therefore, the solution used by the'
employer and endorsed, by the majority does not guarantee that
each employee is fairly treated in accordance with Article 8.1
Only one statistically accurate method of calculation could have
been used to assure that employees did not receive more days off
than they were entitled to, while at ~he time guaranteeing that
no employee received fewer. This would have involved the
admittedly Cumbersome process of c~alculating the number of days
off each employee had received during his/her entire employment
Jistory under the old schedule. The number of d~S off to which
the e~mplOyee would be entitled on the commencement of the new ~
schedule could then have been determined with surety.
The only other solution by which the minimum .... requirements of
Article 8.1 would have been met waS' for all employees to receive
the maximum offered to any one employee, namely 5 days off,
Respectfully submitted,
Menno Vorster