Loading...
HomeMy WebLinkAbout1991-1266.Cameron.92-01-17 ONTA RIO EMPL 0 Y~:$ DE LA COURONNE CROWN EMPLOYEES DE 1. 'ONT..4R;O GRIEVANCE C,OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 150 DUNDAS ST/~EET WEST, SUITE 2100, TORONTO, ONTARIQ MSG ?ZB TELEPHONE/TELePHONE: (4 ~6} 3£6- J358 780, FtUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO). MSG 1Z8 FACSIM/LE/T~-L~COP/E mi {416) 326-~396 1266/91 IN THE MATTER OF AN /%RBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGHININ~ HCT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU .(Cameron) · ~rievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) / Employer BEFORE: M. Gorsky vice-chairPerson P. Klym Member H. Roberts Member FOR THE K. Whitaker GRIEVOR Counsel Ryder, Whitaker, Wright & Chapman Barristers & Solicitors FOR THE C. Foster EMPLOYER Grievance officer Ministry.of Correctional Services HEARING November 25, 1991 1 DECISION The parties filed with us an agreed statement of facts (Exhibit 3) which established: 1. The Grievor is a correctional officer at the Elgin-Middlesex Detention Centre where he was 'employed at all material times prior to the date of the grievance (Exhibit 1), filed on July 2, 1991. 2. The Grievor was injured on August 13, 1990, as a result of being assaulted by an inmate. The first time he was absent from work as a result of this injury was on August 17, 1990, and he was absent from work, intermittently, from August 17, 1990 to November 27f 1990. An award was made under the Workers' Compensation Act as a result of the injury caused by the assault, and the Grievor has been continuously absent from work since November 27, 1990 because of it. 3. Art. 54.2 of the collective agreement provides: Where an employee is'absent by reason of an injury or an industrial disease for which an award is made under The Workers' Compensation Act, his salary shall continue to be paid for a period not exceeding three (3) consecutive months or a total of sixty-five (65) working days where such absences are intermittent, following the date of the first absence because of the injury or industrial disease, and any absence in respect of the injury or industrial disease shall not be charged against his credits. The first 65 day period that the Grievor was absent based on a claim for Workers' Compensation~ as is set out in art. 54.2, ended on January 25, 1991. 4. In his grievance, Mr. Cameron claims that he was denied credit for "8 hours lieu time" for the following statutory holidays while he was absent from work based on a claim made under the Workers' Compensation'act: "December 25 or 26, 1990, January 1, 1991, March 29, 1991, April 1, 1991, May 20, 1991, July 1, 1991." The statutory holidays for which he was not paid and where a dispute existed for the first 65 days of the Workers' Compensation award Were christmas Day, Boxing Day and New Year's ~ay. 5. Christmas Day, which fell on a Tuesday, would have been a regular day of work for the Grievor but he was unable to attend as a result of the injury for which an award was made under the Workers' Compensation Act. He Was paid 12 hours' pay, pursuant to art. 54,2 but was not given 8 hours lieu time for this day which was one of the days which made up his first 65 days of absence for which an award was made 'under the. Workers' Compensation Act. 6. Wednesday, December 26 was a scheduled day off for the Grievor and he was credited with 8 hours' lieu time as per art. 19.4: 3 When a holiday included under Article 48 (Holidays) coincides with an employee's scheduled day off and he does not work on that day, the employee shall be entitled to receive another day off. 7. Tuesday,January 1, 1991 was a scheduled day off for the Grievor and he was credited with 8 hours' lieu time in accordance with art. 19.4. 8. The Grievor's twelve hour shift schedule was changed by a letter, dated January 7, 1991, to the Grievor from Paul Downing, Senior Assistant Superintendent, Corrections, effective January 21, 1991 (Exhibit 4), which is as follows: This letter is to advise you that your shift schedule is being changed to [sic] eight hour schedule, Monday to Friday with weekends and statutory holidays off. This schedule arrangement is in agreement with Article 10.1 of the Collective Agreement. This schedule change will take place commencing January 21, 1991. 9. The Grievor received a letter dated January 8, 1991 from Ms. Alex Richard, Office Manager (Exhibit 5) which is as follows: ~e: W.C,B. Approved Claims - after 65 days Upon reviewing your attendance records we have observed that your 65 days at 100% salary for W.C.B. will expire on January 25, 1991. This letter will provide you with your options after January 25, 1991. 1. Remain on the payroll and supplement your salary from 90% of net with .34 of an accumulated credit per day. 2. Be removed from the payroll (considered as a leave of absence without pay), and receive 90% net salary directly from W.C.Bo If you choose this option, your benefit payments continue, however, your pension plan is not maintained, and you do not earn vacation credits for any full month of absence. Direct W.C.B. payments are non-taxable. Please reply to this office %n writimg, when you decide' which option you will utilize. 10. The Grievor, on January 15, 1991, sent a letter (Exhibit. 6) to. Lorene Chambers, Personnel Clerk, E.MoD.Co in response to Exhibit 5: This is to advise that I will remain on payroll and use accumulated credits to make .up my salary as in your letter to me Jan. 8/91. The Employer acknowledged that its calculation of the date when the 65 working days expired under art. 54.2 might not be correct, and undertook to review it and adjust the expiry date where necessary. 11. The holidays that are in dispute after January 25, 1991, are as follows: 1. Good Friday (Friday, March 29, 1991;. 2. Easter Monday {Monday, April 1, 1991). 3. Victoria Day (Monday May 20, 1991).. 4. Canada Day ~Monda¥, July 1, 1991~, 12. The Grievor received i00% of salary from the Employer for each of the holidays listed in paragraph ~1. The Employer 5 considered these payments as having been made pursuant to art. 48 of the collective agreement and not pursuant to art. 54. Art. 48.1 of the collective agreement ~s as follows: 48.1 An employee shall be entitled to the following paid holidays each year: New Year's Day Good Friday Easter Monday Victoria Day Canada Day Civic Holiday Labour Day Thanksgiving.Day Remembrance Day Christmas Day Boxing Day Any special holiday as proclaimed by the Governor General or Lieutenant Governor. 13. Pursuant to art. 54.3 of the collective agreement, while the Grievor was receiving benefits under the Workers' Compensation Act after January 25, 1991, for each regular work day, holidays excluded, he was paid 90% of his salary by the Employer with the remaining 10% being deducted from his accumulated credits in accordance with his election contained in Exhibit 6. 14. The Ministry of Correctional Services is a Schedule 2 employer as provided for in the Workers' Compensation Act. 15. In accordance with section 5 of the latter Act, the Employer paid the Grievor's wages. 16. The shift schedules for the general duty roster at Elgin- 'Middlesex D.C. for the weeks of December 24, 1990, December 6 '31, 1990, March 25, 1991, April 2, 1991, May 20, 1991,' July t, 1991 are annexed to this decision as Appendix "A." On each page of the shift Schedule the shift supervisor altered the printed schedule created by Exhibit 4 to indicate that the Grievor would not be working and would be off on Workers' Compensation. This was done by running.a line through the printed schedule and writing in the letters WCB before the printed weekly schedule for all of the relevant'weeks except those beginning May 20, 1991 and July 1, 1991. For the weeks beginning May 20 and July i, 1991, an employee by the~name of "Hatfield" was added to the schedule to work the shifts which had been been assigned to the Grievor. Opposite the Grievor's name was recorded the letters "WCB." The legend on Appendix A is that "X" represents a day off, "D" represents the day shift and "N" represents the night shift. 17. The Grievor's attendance records for October 1990 to September 21, 1991 are annexed to this decision as Appendix "B." The parties agreed that the months of August and September have no relevance to this grievance. 18. The Grievor's payroll records from December 1990. to July 1991 are annexed to this decision as Appendix At the opening of the hearing We were informed by counsel for the parties that the Employer had granted 8 hours lieu time to the Grievor with respect to December 26, 1990 and January 1, 1991, and 7 the grievance was amended by deleting the claim with respect to those days. The position taken by counsel on behalf of the Grievor was that he was entitled to the "lieu days" claimed by virtue of art. 19.4 The position taken on behalf of the Grievor was that the holidays under art. 48, for which a claim was made pursuant to article 19.4,coincided with the employee's scheduled days off and, as he did not work on those days, he was entitled to receive another day off (lieu day) in each case. Counsel relied upon Appendix A in support of his position that the days in question were scheduled days off relying on the facts agreed to in paragraphs 8 and 16 of the agreed statement of fact. Counsel for the Grievor stated that where a work schedule of an employee is amended, as was said to have been done in this case, to reflect the fact that the employee would not be at work on a given day, and that day coincided with a holiday provided for in art. 48, the criteria established by art. 19.4 had been met. It was submitted that the entry "W.C.B." opposite the Grievor's name during each of the weeks the Grievor was absent and receiving W.C.B benefits pursuant to the award refered to, with a line being drawn through the printed schedule, or the Grievor's shift having been assigned to another employee, indicated that a change had been made in the Grievor's shift schedule providing that he would not be expected to 8 work on any of the days contained in the printed schedule and the reason for his absence, Counsel for the Grievor buttressed his argument with respect to the weeks beginning May 20 and July 1 by noting .that another employee, "Hatfield," had been assigned to work the shifts for this period which would otherwise have represented the Grievor's schedule pursuant to Exhibit 4, We were asked to note that Appendix A, on each of its pages, contained hand written amendments to the original printed schedule, which was itself an amended schedule in the case of the Grievor, by virtue of Exhibit 4. These changes by the shift supervisor responsible for organizing the shifts were made in order to accommodate scheduling changes as required during the time in question. We were further asked to note that at least 22 of the .positions had been amended. Mr. Whitaker relied upon Re D.C0 Tra3~sit and' Independent Canadia~ ~ransit Union. Local 2 (1988), 2 L.A.C. (4th) 225 (Larson), where the collective agreement required that in order.to qualify for statutory holiday pay an employee must be at work 'on his/her working day before or after the statutory holiday. One of the griavors was injured on the job and was put on Workers' Compensation from December 21. 1982 to January 14, 1983. HiS re~ularly scheduled days' off were Sunday and Monday and the 9 employer refused to pay him for the Boxing Day statutory holiday because it fell on the Sunday and he had not worked the day before or after the holiday. The employer there argued that work schedules are established and that once this has been done (at p.229): "that schedule must be taken to constitute the basis for the determination of an employee's qualifying days." It said that an employee could not be taken to be entitled to statutory holiday pay where he is absent on the qualifying days because he would not then have worked on his scheduled working day. Nor, it said, did that provision leave any latitude, for the union to prove justifiable absence. If the employee is absent, he does not qualify. It said that any other interpretation would mean that the employee would be able to qualify for statutory holiday pay by working the day before a sickness, injury or authorized leave rather than the scheduled working day, The board stated (at p, 229): The problem with that argument is that it involves the proposition that once a schedule is set by the sign-up procedure it cannot be changed and that the days established as working days continue to have that character even if the employee is subsequently excused from working. To merely state that proposition is to answer it, A schedule may be changed in any manner consistent with the collective agreement. Once changed, that day can no longer be considered to be a working day. Nor does it continue to be scheduled. while the word "scheduled" is confined by the sign-up procedure, being the manner in which the employee is advised of when he will be required to work, I cannot accept that an employee continues to be scheduled if he was subsequently excused, from attending at work .... We agre that a work schedule may be changed " in any manner consistent with the collective agreement." The question is: Has it been so changed on the facts and collective agreement.before us? Counsel for the Union also relied on McCormick, 386/81 (Barton). In that case, the griever was a Correctional Officer 3 at the Burtch Correctional Centre. He filed a grievance alleging that he had been improperly instructed to take Monday, May 18, 1981 as a statutory holiday. He requested payment of all premium pay and a lieu day to which he would have been entitled if he had worked that day which was the Victoria Day holiday. In acknowledging the right of management to amend the schedule, as was decided in McCormick, counse~ for the Griever in the case before us, argued that having changed the schedule that had been previously changed in Exhibit 4, the Employer had set the stage for the application of art. 19.4. This was said to be because the change in schedule achieved by the'handwritten changes to the printed schedule .(Appendix A) had the effect of making every day on the Griever's Schedule a schduled day off. In these circumstances, it was inevitable that "a holiday included under Article 48 (Holidays)" would coincide "with [theJ employee's day off." Counsel for the Griever also relied upon Bowes, 0701/85 (Delisle), to the same effect. It was submitted that in the 11 McCormick case the Board noted the fact that the grievor had received the in lieu day pursuant to art, 19.4. An examination of the case does not disclose this to be so. The language in the award that was said to have established this to be the case ~s found at page 3: "He did in fact do so ~take the statutory holidayJ and received the holiday provided for in the Agreement." We cannot interpret the language relied upon in the manner suggested by the counsel for the Union. Counsel for the Grievor argued that art. 48 did not deal with any salary or benefit that might flow from an entitlement to a holiday. He also argued that art. 54 did not concern itself with entitlement to statutory holiday benefits when an employee was in receipt of Workers' Compensation benefits. It was submitted that art. 54 did not in any way affect the rights of an employee under art. 19.4, and that if this had been the case the purpose would have been reflected in the language of art. 54, This was contrasted with the provisions of art. 47 where, in art. 47,3.2, the parties turned their minds to the accrual of vacation benefits when an employee was in receipt of Workers' Compensation benefits. We were urged to find that art. 19.4 applied notwithstanding the status of an employee on Workers' Compensation, The position taken on behalf of the Employer was that the Grievor's entitlement with respect to holiday pay was established under art, 48.1, and not under art. 19, as a result of certain 12 changes that had been effected in the collective agreement, and that there had been no change in the Grievor's schedule as a result of the hand-written entries made to Appendix A which might be relied upom as a basis for invoking the provisions of art. 19.4. Counsel for the Employer stated that to January 21, 1991, the master 12 hour shift schedule applied to the Grievor and that, by virtue of Exhibit 4, from that date the Grievor's schedule was changed to reflect the 'fact that he would have worked 8 hours per day Monday to Friday with weekends and statutory holidays off. Whittard, 2618/90 {Watters), comments on the amendments to the collective agreement. Reference was there made, at po 6., to Parsons, 81/78 {Prichard), where: "The Board treated'article 19.2 as the source for holiday pay for all employees." The Board in Whittard then stated (at pp.6-7): It is significant that the holiday article merely enumerated the holidays to be enjoyed each year. The provision did not then state that they were to be enjoyed as paid holidays. The board was therefore compelled to look elsewhere for the source of holiday pay. counsel for the Employer also relied on Bir_~, 338/83 (Samuels), where an employee was scheduled to work on April 1, 2, 3 and 4 of 1983, April 1 being Good Friday and April 4 being Easter Monday. The ~rievor was off sick for several weeks in March, but on March 31 received his doctor's permission to return to work and at 5:00 pom. on that day let his supervisor know'that he would be on duty on April 1, 2, 3 and 4 as ~cheduled. The grievor ~was advised by his superiors that he should take April 1 off as a statutory holiday and he worked April 2 and 3, but sometime during one of those days was told to take off April 4 as a statutory holiday. At page 5 of the award it was noted that the parties had agreed that art. 10.1 was not applicable because the grievor's shift schedule had not been changed: ~he had not been asked to work a different shift from that which was originally scheduled. Although not required to do so, the Board indicated its view that the McCormick case had been incorrectly decided on this point as there was no "changed shift" as provided for in art. 10.1. In Exhibit 4 the change in the shift schedule was made pursuant to art. 10.1, however the hand-written changes recorded in Appendix A were not. There is no question that, given the circumstances of the Grievor's absence, he was not being asked to work a different shift from that which had been scheduled in Exhibit 4. The alleged changes made to the Grievor's shift schedule as established by Exhibit 4 merely showed what was undisputed: the Grievor would,not be working as he was off-work as a result of a work related injury, and was in receipt of payments pursuant to a W.C.B. award. This is also carried forward into Appendix B where the status of the Grievor on W.C.B. is recorded. We were asked by Mr. Whitaker to regard the hand-written changes made to the printed schedule (Appendix A) as indicating that a change had been made in the shift schedule established by 14 Exhibit 4. On the facts of the case before us this represents even less of a change than that which was alleged to have been made in the P_~ case. The schedule cannot be regarded as having been changed by the supervisor's indicating that the Grievor would not be working on any of the days shown on the printed portion of Appemdix A, but ~would be absent as a result of a work related injury and in receipt of payments pursuant to a W.C.B. award. We cannot regard the hand-written changes to the amended shedule as amounting to a change in the Grievor's work schedule. The hand- written .changes merely served as an indication that the Grievor would not be at work during the period in question. He was not given a work schedule comprised entirely of his scheduled days off as would have to be the case for article 19.4 to apply on the facts before us. If such a peculiar result were intended, it would be expected that appropriate language would have been employed. Accordingly, and for the above' reasons, to the extent that the lieu days with respect to the holidays claimed do not coincide with the Grievor's scheduled days off as set out in Exhibit'4, the grievance must be dismissed. Dated at Toronto this lTth day of January, 1992. M. R. GorSky - Vice Chairperson 8. a~ber~s- ~ember' D~t~JANUARy REED WILLIS S~ER~ILL CAPSTICK ~SZNER C~RLTON JANSSEN RO~INE LLO~ PI~E SOLINGER P~NTICE ~l ~GGERTY MILLS MEULEND~S JOVAN BRE~TON ~vel Unit Foyer C~LTOH J g D X X D D D m SOLI~GE~ N N X X N ~ N g S~ERHILL D D X X D D D CAPSTICK X X D D X X X ~SZNER X X X X X X X 17 M T N ? F 5 ~ 2.5 26 27 28 29 30 31 HAGGERTY ~ ~ X X ~ D D ~ETTS X X A A ~ ~ A 3 :~ ..... ~ A A X X D D D MILLS D D D D D X X 11BU~i'i ~[g X X A ~ ~ A A ~l~l~ ~- ~. A k X X D D D ~,,~1~ G A A X X D D . D ZO ~ o D D D D X X B~TON X X A A _ A A a ~vel TI Platen Unit J6 ~ule Foyer EM-17~ APRIl, TUFF C C~TON SOL~NGER PR~N~IC~ WILLIS S~ERHILL CAPSTICK ~L ~ETTS MILLS JORDAN 7.0 21. 22 23 24 25 26 X o ~ ~ X x 4 WILLIS N I I N N N 5 ~SZNER O D X X X 8 X X X TUFF C c~LTON J O ~ ~ ~ ~ ~ ~ ~ u u 11 JANSSEN ~IKE X ~ x x 16 ~OLI~G~R ~ 21 22 23 24 25 26 ~LLS ao~ · ~ x x ~ ~ ~ 4 ~T~S G ~RE~TO" - ~,~, ~ ,.~-~ ~ ~ ~ · , , ~;~ ~ ~, ,,~:~ ~ , I ~.--- : ~ ~ ~'~ ~ ~ . ~ ~ -. ~ .