HomeMy WebLinkAbout2015-3085.Adamson.16-12-20 Decision
Crown Employees
Grievance Settlement
Board
Suite 600
180 Dundas St. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Fax (416) 326-1396
Commission de
règlement des griefs
des employés de la
Couronne
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
Téléc. : (416) 326-1396
GSB#2015-3085
UNION#2016-5112-0005
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Adamson) Union
- and -
The Crown in Right of Ontario
(Ministry of Community Safety and Correctional Services) Employer
BEFORE Brian P. Sheehan Vice-Chair
FOR THE UNION John Wardell
Ontario Public Service Employees Union
Grievance Officer
FOR THE EMPLOYER James Cheng
Treasury Board Secretariat
Centre for Employee Relations
Employee Relations Advisor
HEARING December 2, 2016
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Decision
[1] The Employer and the Union at the Toronto South Detention Centre agreed to
participate in the Expedited Mediation-Arbitration process in accordance with the
negotiated Protocol. It is not necessary to reproduce the entire Protocol. Suffice to say
that the parties have agreed to a True Mediation-Arbitration process, wherein each
party provides the Vice-Chair with their submissions setting out the facts and the
authorities they will respectively rely upon. This decision is issued in accordance with
the Protocol and with Article 22.16 of the collective agreement, and is without prejudice
or precedent.
[2] The grievor is a Correctional Officer who is a Fixed–Term Employee currently
assigned to the Toronto South Detention Centre. The grievor did not have a regularly
scheduled work week.
[3] The Union and the grievor assert that the Employer violated the collective
agreement by not paying the grievor the overtime rate of pay for certain hours that the
grievor worked with respect to the work week from Monday December 21 to Sunday
December 27, 2015. For that week, the grievor worked the following scheduled shifts:
Wednesday December 23 – 8 hours; Thursday December 24 – 8 hours; Friday
December 25 – 12 hours; Saturday December 26 – 12 hours. The grievor worked an
additional 8-hour shift on Monday December 21 pursuant to the “overtime protocol”.
[4] The grievor was paid at the premium rate of two times his basic hourly rate for
working on the paid holidays of Christmas Day (December 25) and Boxing Day
(December 26) pursuant to Article 31A.3 of the collective agreement.
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[5] Against the backdrop of the above facts, a review of the relevant provisions of
the collective agreement affirms that the grievor was not entitled to overtime pay with
respect to the hours he worked for the week in question, notwithstanding the fact that he
worked more than 40 hours that week.
[6] Pursuant to the wording of Article 31A.3.1 (d) of the collective agreement, an
employee, who does not have a regularly scheduled work week, has his entitlement to
overtime pay triggered upon working in excess of 40 hours per week. Related to this
point, the additional shift worked by the grievor on Monday, December 21, while
constituting an “overtime opportunity”, did not, in itself, attract entitlement to overtime
pay. It is only upon the grievor actually working in excess of 40 hours for the week that
the entitlement to overtime is triggered under Article 31A.3.1 (d).
[7] The grievor’s potential entitlement to overtime was therefore triggered on Boxing
Day when he worked hours 40 to 48 for that week. Article 15.1 of the collective
agreement expressly forbids, however, a pyramiding of any premium payments.
Accordingly, since the grievor was paid at two times his rate of pay for the hours worked
on Boxing Day, he did not have a basis to additionally claim overtime pay with respect
to those same hours.
[8] Accordingly, the fact that the grievor did not receive overtime pay with respect to
the hours he worked for the week Monday December 21 to Sunday December 27,
2015, did not constitute a violation of the collective agreement.
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Accordingly, the grievance is, hereby, dismissed.
Dated at Toronto, Ontario this 20th day of December 2016.
Brian P. Sheehan, Vice Chair