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Home My WebLink About1990-0826.Czekierda.91-01-08 " 1-'::i,~:;;~",,~:,~i~~}e,~;,~ g~6~~~MPLOYEES ~ ...--r-;- .' !4 EMPLOYES DE LA COURONNE Of L 'ONTARIO , ' ~,;,:. ,/;,':/~;~' '>. GRIEVANCE COMMISSION DE . 1111 SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO, M5G IZ8 TELEPHONE/TELEPHONE: (416) 326- ¡388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO). MSG lZ8 FACSIMILE/TÉLECOPIE: (416) 326- J 396 I 826/90 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES~COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN ... OPSEU (Czekierda) Grievor - and - The Crown in Right of ontario (Ministry of Community & Social services) Employer BEFORE: B. Keller Vice-Chairperson I. Thomson Member M. O'Toole Member FOR THE B. Rutherford GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE M. Gottesman EMPLOYER Employees Relations Officer Human Resources Branch ~: Ministry of Health HEARING: December 12, 1990 - 2 - .- ~ DECISION The grievor seeks a day's pay for attending an interview with the I Ministry of Correctional Services in Red Lake. The article I allegedly violated is S.4.4. of the collective agreement. I , I 4.4 An applicant who is invited to attend an interview within the civil service shall be granted time off with no loss of pay and with no loss of credits to attend the interview, provided that the time off I does not unduly interfere with operating requirements. ... I The relevant facts are not in dispute. At the time the incident I occurred in April 1989, the grievor was a Residential Counsellor I 2 at the Oxford Regional Centre in Woodstock. At some time i I previous to April, the employees at the Centre were informed that the employer had plans to downsize the Centre with a resultant loss of jobs. Employees were encouraged to actively seek other employment within the civil service and encouraged to attend job interviews. The grievor attended several, with ,pay, as did at least one of her co~workers. In March 1989, the grievor applied for a job with the Ministry of Correctional Services in Red Lake, some 1400 miles from Toronto. - 3 - ~ ~ ,- . On March 30 she received a letter inviting her to an interview in Red Lake on April 19 at 10:15 a.m. She was told that because of the distance from Woodstock she would have to travel on April 18 and overnight in Red Lake in order to ensure that she be at the interview for 10:15. On April 2 the grievor approached her supervisor about getting time off work to attend the interview. Another discussion was held the next day. The result of the discussions was that the , grievor was accommodated in getting all the time off she request- ed except in one respect. She had sought to be paid for her work shifts on both April 18 and 19. The employer agreed to pay the latter but not the former. ~ At the time the grievor was working a 23:00 to 07:00 shift. As a result of her accommodation with the employer she was granted the 18th, 20th, 21st and 22nd as her regular days-off. The 19th was treated as a leave of absence with pay under the terms of 8.4.4. In the end, the final work and travel arrangements for the grievor were the following: \j \ \.- \ \' \ - 4 - \ ) \ " ...~ , April 17 work 23:00 - 07:00 April 18 depart Woodstock 14:30, arrive Red Lake 23:00 local time (24:00 Eastern time) April 19 commence interview 10:30, end 12:30 April 20, 21, 22 - off It was agreed by the parties that airline schedules showed that had the grievor worked a day shift, as she had been offered, she could have worked, then flown out and arrived in Red Lake the day .. I before the interview. similarly, airline schedules showed that there were a chain of flights leaving Red Lake at 13:55 and I I arriving in London at 21:30 thus making it theoretically possible that the grievor could have worked both immediately prior to and I after her trip. No evidence was adduced as to whether the I flights shown were made or were on time on the days in questions. I I The issue l.n this case, simply put is whether the grievor is I entitled to pay for her shift on April 18. The argument of the union is simply that S.4.4. is mandatory so long as there is no issue of the employer claiming an operational requirement. As the employer concedes that there is no issue in this case, the - 5 - .., _.~ , 18th must be paid. As an alternative argument, the union states that the grievor is entitled to travelling time under S 23.1. The employer bases its argument on previous decisions of the Board dealing with, in particular, Articles 27 and 28 of the collective agreement. The decisions cited by counsel all hold , that there is no entitlement to pay outside the working hours of employees within the factual context of each case. ~ In particular, the employer referred the Board to: Sinacori 76B/B8 (Fisher) Brown 992/89 (Wilson) Daniels 1727/89 (Ratushny) Murray 35/78 (Swan) Klonowski 744/87 (Wilson) We support the decisions just referred to. They do not, however, deal with the peculiar factual situation faced by us in the instant case. - 6 - . ' . -, , - In essence, by granting the one day leave of absence pay; the em- ployer has effectively agreed to the basic principle underlying the clause that an employee is not to lose any pay in order to attend an interview. If this was not the case, why would they have agreed that even one day's pay (the 19th) was warranted? The answer, in our view, is the particular circumstances of this , case where the interview was 1400 miles from Woodstock; where long hours of travel were required; where the interviewing minis- try specifically requested the grievor arrive the day prior to , I the interview. As the employer has acknowledged the principle in this case, the only issue that remains for the Board to determine is whether it can extend beyond one day's pay and, if so, whether in this case an additional day's pay is justified. The answer to the first question is found in the language of 8.4.4. which talks about no loss of pay. It is not restrictive. Thus if more than one day's reimbursement is required, S . 4 . 4 . is no impediment. With regard to the second question, we are satisfied that being absent on the 18th was rèquired to attend the interview on the - 7 - ,..t· .... "-- ~-. i I I, \ 19th. In 1fact, absence on the 18th was required more than the , ' absence ani the 19th - the day paid by the ministry. Therefore, I I , payment fot the 18th is contemplated by 8.4.4. Given the partic- I I I . I in the instant case, therefore, we allow the u ar c1rcumstances I I grievance ànd order the payment of one day1s pay, with interest. I I I ,I I , I' We remainjseized in the event any issue arises regarding the I i implementation of this award. I I I I, ¡.. ' of Nepean this 8th day January 1991 I J ~. I \ I I M. Brian Keller, Vice-Chairperson I I 1 1 " I ¡ / I Member I I ! I 7J1·f· 6\fJ í I I M. O'Toole, Member ; I I I I 1 I , I I , I I I I I I I I "