HomeMy WebLinkAboutUnion 02-04-10
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IN THE MATTER OF AN ARBITRATION
BETWEEN
Hamilton-Wentworth Community Care Access Centre
(Hereinafter referred to as "the Employer")
-,
AND
Ontario Public Service Employees' Union - Local 274
(Hereinafter referred to as "the Union")
Regarding:- Group Grievance
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Sole Arbitrator: Felicity D. Briggs
For the Employer: John E. Brooks, Counsel
Barbara Headly
Mia Manson
For the Union: Mitch Bevan, Grievance Officer
Marilyn Mailett
Rita Castellino
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On April 18, 2000 two Relief SuppOli Staff filed a group grievance that
stated:
The grievors alledge (sic) that the employer has violated the
Employment Standards Act section 25 specifically but not
exclusively.
The grievors are requesting that they be paid for stat holidays. This
request will also include any future stat holidays and also be
retroactive to their date(s) of hire. Also requesting to be made whole.
After the parties met to discuss that grievance the Employer sent the
following letter to the Union:
Further to our grievance meeting on April 20, 2000, I am to respond
to you in writing with my decision within seven calendar days. Please
find this as my response.
The Grievors allege that the Employer has breached Section 25 of the
Employment Standards Act. The Grievors are requesting that they be
paid for Statutory Holidays, including any future Statutory Holidays
and any Statutory Holidays retroactive since their dates of hire.
Section 25 (I) states that, "This section does not apply to an
employee who,
(a) is employed for less than three months;
(b) has not earned wages on a (sic) least twelve days during the
four work weeks immediately preceding a public holiday;
(c) fails to work his or her scheduled regular day of work
preceding or his or her scheduled regular day of work
following a public holiday;
(d) has agreed to work on a public holiday and who, without
reasonable cause, fails to repOli for and perform the work; or
(e) is employed under an arrangement whereby the employee
may elect to work or not when requested to do so... ."
As per Article 2.02(c) of the Collective Agreement, "A Relief
Employee is one who is employed inegularly on a relief basis as and
when required by the Employer",
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Furthennore, as relief staff, they are required to submit their
availability to the Human Resources Assistant advising of dates they
are not available to work when offered, Therefore, they do not meet
criteria (e) above, and are not enti tled to be paid for Statutory
Holidays,
The Employer also considers this grievance to be untimely with
respect to the claim for retroactive pay for Statutory Holidays back to
the dates of hire, and objects to its arb itrab ility.
The matter remained outstanding and the parties agreed to put the dispute
before an arbitrator. 'prior to the scheduled hearing date, the parties agreed to
resolve the issue and signed a memorandum of agreement dated April 4,
2001 that stated:
1. The CCAC will pay to each Grievor 3,1 % in lieu of statutory
holidays on all hours worked between January 1, 2000 and October
9, 2000, $633.78 less deductions required by law for Diana Atkins
and $596.19 less deductions required by làw for Sherri Patterson.
2. The Union and the Grievors hereby withdraw this grievance.
3. The CCAC and the Union agree that this settlement is made
without prejudice or precedent to the rights of the parties in any
other matter and shall not be referred to or relied upon in any other
matter for any purpose whatsoever.
Notwithstanding the third paragraph above, the parties agreed that the
memorandum of agreement should be put before me to enable me to
appreciate the history of the instant dispute. I accept the document for that
purpose.
Subsequent to the April 4, 200 I tnemorandum of agreement the parties
bargained a new collective agreement which amended the provisions for
holiday pay for relief staff. The present collective agreement provisions shall
be set out later in this award.
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Marilyn Mailett and Rita Castellino were hired as Relief Support Staff with
the Employer on August 23, 1999. On June ll, 2001 they filed a group
grievanèe that stated:
We grieve that the employer has violated the Employment Standards
Act Section 25 and the collective agreement specifically but not
exclusively.
The amended remedy requested was:
The grievors are requesting that they be paid for stat holidays. This
request will be retroactive to their dates of hire.
The Employer's response was dated June 22, 2001 and it stated, in part:
The new collective agreement, ratified on December 14, 2000 is clear
with respect to statutory holiday pay for relief staff. Letter of
Understanding (C) paragraph reads (sic) that: "Relief Employees
(other than those covered by paragraph 3 above) will receive an
amount equal to 3.1 % of their regular straight-time hourly rate in lieu
of holiday pay under Article 18. Relief Employees who are offered
and accept term contract assignments which are expected to exceed
one month will be eligible for holiday pay as per Article 18 of the
Collective Agreement but will not be compensated in lieu of holiday
pay under paragraph 3 above".
Both of these grievors are currently receiving 3.1 % in lieu of paid
statutory holidays 111 accordance with the Relief Letter of
Understanding (C).
Further, this grievance is untimely and, pursuant to Article 9 of the
collective agreement, has been abandoned and any rights or recourse
to the grievance procedure are at an end.
At the hearing into this matter, relevant background facts were not in dispute
and various documents were admitted upon consent.
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On August 20, 1999 both grievors received a letter setting out their terms of
employment. Those identical letters stated, in part:
As a casual employee, you are not eligible to participate in the group
benefits plan. Relief Employees who have worked less than 3900
hours shall be entitled to 6% vacation pay. Relief Employees who are
offered and accept term contract assignments, which are expected to
- exceed one month, will be eligible for holiday pay as per Article 18 of
the Collective Agreement.
....
Relief Staff are included within the OPSEU Local 274 bargaining
unit. During your orientation, you will meet with a representative who
will provide you with the details of your membership. Please refer to
the Collective Agreement Letter of understanding (c) regarding Relief
Employees.
It is probably helpful to set out the relevant prQvisions of the collective
agreement at this point.
Article 9 - Grievance Procedure
9.05 The decision of the Arbitrator shall be final and binding upon
both parties and the Employee or Employees affected. The
Arbitrator shall not have jurisdiction to amend or add to any of
the provisions of this Agreement or to substitute any new
provisions in lieu thereof nor to give any matter not covered by
the Agreement. No matter shall be dealt with at arbitration
which has not been properly carried through all the previous
steps of the grievance procedure,
9.06 All agreements reached under the grievance procedure between
the representatives of the Employer and the representatives of
the Union will be final and binding upon the Employer and the
Union and the Employee or Employees affected.
9.07 The time limits set out in this Article are to be construed as
mandatory. If a grievance is not submitted or advanced through
the grievance procedure or to arbitration within the time limits
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" set out, the grievance shall be deemed to be abandoned and all
rights or recourse to the grievance procedure shall be at an end.
9.08 The parties may agree to extend or waive any of the time limits
prescribed in this Article. However, any such agreement shall
be expressed in writing and acknowledged by the parties.
9.09 Group Grievance
Where a number of Employees have identical grievances and
each Employee would be entitled to grieve separately they may
present a group grievance in writing, signed by each Employee
who is grieving to the Director, Corporate Services within
fomieep (14) calendar days after the circumstances giving rise
to the grievance have originated or ought reasonably to have
come to the attention of the Employees.
Group grievances shall be treated as being initiated at Step No.
2.
Letter of Understanding ( c) - Relief Employees
2, None of the provisions of the Collective Agreement apply to
Relief Employees except as specifically set out herein.
3. Notwithstanding the provisions of the Letter of Understanding
relief employees in the bargaining unit on June 10, 1999 (the
date of ratification of the 1999 collective agreement) will
continue to receive an amount equal to 6.5 percent of their
regular straight time hourly rate in lieu of any holiday pay
under Article 18 (i.e. 3.l percent) and for pay in lieu of any
benefits under Article 2 I (i.e. 3.4 percent) for all earnings. In all
other respects the provisions of this Letter of Understanding
shall apply to these Relief Employees.
.. ...
5. Relief Employees (other than those covered by paragraph 3
above) will receive an amount equal to 3.1 % of their regular
straight-time hourly rate in lieu of holiday pay under Article 18.
Relief Employees who are offered and accept term contract
assignments which are expected to exceed one month will be
eligible for holiday pay as per Atiicle 18 of the Collective
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Agreement but will not be compensated in lieu of holiday pay
under paragraph 3 above,
Section 25 of the Employment Standards Act states:
25. (l) Application - This section does not apply to an employee who,
(e) is employed under and arrangement whereby the employee
may elect to work or not when requested to do so.
There is no dispute that, since the ratification of the most recently negotiated
collective agreement which took place on December 14,2001, the grievors
have been paid 3.1 % holiday pay and that payment is in accordance with the
terms and provisions of the collective agreement.
It was the Employer's position that the grievance is not arbitrable for a
number of reasons. The Union contended that the Employer should pay the
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grievors proper holiday pay for the period between their dates of hire and the
ratification of the new collective agreement. Mr. Brooks, for the Employer,
and Mr. Bevan, for the Union, agreed that the preliminary matters should be
considered first. Accordingly, this decision deals only with the issue of
jurisdiction.
The first aspect of the Employer's preliminary objection deals with
jurisdiction. Simply put, I was appointed under this collective agreement and
therefore I can only hear and determine alleged violations of the current
collective agreement. The parties are agreed that there is no such breach and
that must be a complete answer to the question of jurisdiction, Article 9.01
of the collective agreement refers to violations of "this collective
agreement". Any breach of a past colIective agreement cannot be determined
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or remedied by an arbitrator appointed under the current collective
agreement. In this regard the Employer relied upon Re Goodyear Canada
Inc. and United Rubber Workel's, Local 232 (1980), 28 LA.C. (2d) 196
(picher); Re Gananoque Light & Power Ltd. And International
Brotherhood of Electrical Workers, Local 636 (1996), 54 LA.C. (4th) 203
(Thorne); Re York University and York University Faculty Association
(January 29, 2002), unreported (Davie); and Re Dufferin-Peel Roman
Catholic Separate School Boa rd and Ontario English Catholic
Teachers' Association (1999), 85 LA.C, (4th) 21 (Samuels).
As mentioned earlier, the Employer also had alternate arguments regarding
my jurisdiction that I will not set out for reasons that will become apparent
below. It is sufficient to say that those alternate grounds included the
grievances were filed beyond the mandatory til1le limits, set out in the
collective agreement and there are no reasonable grounds for an extension,
the matter was previously resolved by the parties and, finally, the matter
should be dismissed on the basis of the doctrine of laches. Even if I found I
had the jurisdiction to hear the merits of the instant grievance, it was the
Employer's contention that I would be without jurisdiction to award any
remedy that predated the filing of the grievance.
Mr. Bevan asserted that in the event that this issue was put before me on the
merits, there would be a dispute as to the quantum of appropriate holiday
pay. In any event, it was the Union's submission that the grievance alleges a
violation of the collective agreement as well as Section 25 of the
Employment Standard~ Act. In such instances where there is an allegation of
both a breach of the collective abIJ'eel11ent and the relevant statute, it is not
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beyond my jurisdiction to hear and determine the issue even if the breach
occurred prior to the current collective agreement.
DECISION
In assessing jurisdiction I must be take into account what the grievance-
alleges and under what collective agreement it was filed. The grievors allege
that they were improperly paid holiday pay for a period that fell during the
life of the previous icollective agreement. However the grievance was filed
under the current collective agreement and the pmiies agree that there is no
violation of the present collective agreement. In my view, the jurisprudence
on this issue is clear, consistent and leads me to uphold the Employer's
objection,
In Re York University (supra) Ms. Davie was considering her jurisdiction
to hear and remedy 17 grievances that alleged that female staff had been
paid less than their male counterparts for substantially the same work for
many years. The Faculty Association asserted that such action was a brea~h
of the collective agreement, the Employment Standards' Act and the Human
Rights Code. Unlike the circumstances before me, Ms. Davie accepted
jurisdiction to hear and determine the grievances on the basis that the
grievances were continuing in nature, She found that each time the female
grievors were paid there was, arguably, a fresh breach of the collective
agreement. However, in assessing her ability to provide a remedy that
predated the collective agreement under which she was appointed she stated,
at pages 36 and 37:
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grievance procedure there are numerous references to "this agreement".
Such references must be given meaning.
In assessing what, if any, jurisdiction I have I must look to the collective
agreement lli1der which I was appointed. It was common ground between
Mr. Brooks and Mr. Bevan that there was no violation of the instant
collective agreement. Notwithstanding th~t lack of a breach, the Union urged
me to take jurisdiction to hear and determine the grievance on the basis that
there is also an alleged violation of statute. I cannot. I do not obtain my
jurisdiction in this matter from the Employment Standards Act. This is an
arbitration hearing resulting from my appointment under the current
collective agreement and it is under that collective agreement that my
jurisdiction would be found.
For those reasons, the Employer's preliminary objection is upheld and the
grievance is dismissed.
ronto this 10th day of April, 2002.
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