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HomeMy WebLinkAbout1993-0065.Mazziotta.98-05-15 ~'" EMPLOYES DE LA COURONNE u..('\;f' . ONrARIO .1 CROWN EMPLOYEES DE L'ONrARIO -", ~ .. 1111 GRIEVANCE COMMISSION DE "F'i,t ." SETILEMENT REGLEMENT ~ BOARD DES GRIEFS t80 DUNDAS STREET WEST SUITE 800, TORONTO ON M5G tZ8 TELEPHONErrELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 800, TORONTO (ON) M5G tZ8 FACS/MILE/TELECOPIE (416) 326-1396 GSB #0065/93, 0066/93, 0067/93 93B410-412 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (MazzIotta) Grievor - and - The Crown In RIght of Ontano (Management Board Secretanat) Employer BEFORE M.R. Gorsky Vice-ChaIr T Browes-Bugden Member F Collict Member ~ FOR THE Susan Stamm UNION Counsel Gowling, Strathy & Henderson Bamsters and SoliCItors FOR THE DaVId Strang EMPLOYER Counsel, Legal ServIces Branch Management Board Secretanat ."i ~ ..~ " // i HEARING October 13, 1993 January 31, 1994 May 18 and 19, 1994 September 29, 1994 December 8, 1994 April 20, 1995 December 4, 1995 October 15, 1996 January 6 and 7, 1997 April 21, 22, and 23, 1997 - \!;; ~ DECISION The Grievor, Walter Mazziotta, whose date of hire with the Ministry of Government Services was December 5, 1988, was at all material times a Systems Analyst with the Ministry, with the classification title of S03 The following grievances were before " the Board (1) GSB 65/93 (Exhibit 1), dated November 17, 1992, where the "statement of grievance" is Continually discriminated and harassed Some examples are criticizing my clothing and/or positions and/or acting assignments, not allowing me to compete for new vacancies and/or positions and/or acting assignments, not allowing me to use rest periods while others are allowed, and not compensating me for overtime, when others are being given time off at a one to one ratio, etc The .settlement requested is Full redress from time of occurrences For example interest and compensation for being under classified (2 ) GSB 66/93 (Exhibit 2) , dated January 4, 1993, where the "statement of grievance is I have been unjustly disciplined as addressed in letter dated December 8, 1992 ~ The settlement requested is ) Full redress with interest (3) GSB 67/93 (Exhibit 3), dated February 11, 1993, where the "statement of grievance is Not limited to various Acts and Agreements, I grieve the following 1 Unjust discipline, letters dated December 8, 1992 and Jan 26, 1993 "e} @ 2 2. Harassment and discrimination against union activity (denial of rest period) 3 No compensation for overtime 4 Unfair labour practice, such as piece work, improper classification, lack of training, and denial of opportunity and advancement 5 Giving acting positions of over 6 months to less qualified staff, without opening a competition ~ The settlement requested is Full redress with interest Arbitrator exercise its [sic] power to discipline and dismiss (Peter Petrashko, Francis Chan, David Ritcey etc ) (4) Grievance dated October 5, 1993 (Exhibit 4), no GSB number, which the parties agreed was properly before the Board, and waived the requirements of the collective agreement for processing it This grievance involves certain matters arising out of a letter "dated December 2, 1992 and succeeding letters" in which the Grievor was said to have been disciplined, as well as a claim with respect to "unfair and improper work - performance evaluations " The statement of grievance requested I Removal of all disciplinary and performance letters from employee record/ file (including letter dated December 2, 1992) Full reinstatement with removal of all negative records from all files ~, 1 .3 Mr Petrashko, a member of the bargaining unit, was at certain material times Mr Mazziotta's immediate supervisor, having been I assigned to work as a working coordinator on an acting basis Mr Chan, was at the material times the Manager, Applications support, to whom Mr Petrashko reported in his capacity as working coordinator Mr Ritcey was at the material times the Director, Human Resources Information Services Branch, to whom Mr Chan reported The first day of a 14 day hearing commenced on October 13, 1993, and the last day of hearing was on April 23, 1997 On December 4, 1995, the parties entered into minutes of settlement with respect to "all grievances against Management Board secretariat including" the grievances above recorded As a result of the noted settlement, it was agreed that the only matters outstanding with respect to which this panel of the Board was seized were 3 whether the Grievor, as a Schedule 6 employee, was entitled to overtime or compensatory time off for hours worked in excess of his regularly scheduled 36 25 hours per week, and - the Grievor's remedy (if any) for any denial which he can establish of such entitlement Paragraph 5 of the minutes provide These Minutes of Settlement shall remain confidential, except for matters arising from clause three, and shall not be disclosed by any party except where such disclosure is required by law ,~ ,..... ,; 4 For reasons which will become apparent, it would be impossible to render a decision on the remaining issues before the Board without dealing with facts that relate to the settlement referred to in the other clauses of the Minutes In addition, counsel agreed that the Board would have to review and consider all of the evidence that was given during the hearing in order to be able to deal with questions of credibility that bore on the remaining issues The claim for compensation for overtime made by the Grievor (Exhibit 68) is for $47,301 09, based on his having worked a total of 1,085 70 hours, at different rates, times 1 5 "Number of Hours" between June 17, 1992 and July 7, 1995 The claim for "overtime," excluding work on days off was $36,835 82 The claim for "overtime" for work on days off (referred to as week end work) was $10,465 27 An alternative claim was made on behalf of the Grievor for compensatory time-off on the basis of one hour off for every hour of overtime worked ~ Counsel for the Employer submitted that as a Schedule 6 employee the Grievor was not entitled to payment of overtime under the overtime provisions set out in art 13 of the collective agreement, and that employees ih Schedule 6 were only entitled to "equivalent time off" when they were "required to work on a day off" (art 13 7 1) It was alleged that in this matter, the GrieV9r had never worked on a day off at the request of the Employer I ! \~ .Ct ,e 5 Reference was made to the provisions with respect to the payment of overtime, as defined in art 13 2 2, which is only payable to employees in Schedules 3 7 and 4 7 under the provisions of art 13 3 3, and to employees in Schedules 3 and 4 under the provisions of art 13 4 Counsel for the Employer also submitted that Grievor's overtime claims were, in any event, out of time as they related to claims made earlier than 20 days prior to the filing of the grievance dated November 17, 1992, in which a claim was made with respect to overtime work Counsel for the Union submitted that the grievance was filed in a timely fashion It was the Grievor's evidence that he did not have knowledge or become aware that there had been a possible violation of his rights under the collective agreement until the filing of a grievance on November 6, 1992 (Exhibit 69) by a member of the unclassified staff, Keith MacDonald, who was also classified as an S03, in which he claimed compensation for "overtime " The - Grievor is shown to be the Union Steward in Exhibit 69 - Counsel for the Union relied on ontario (Min. of Correctional Services v. O.P.S.E.U. (1990) , 74 o R (2d) 700 (Div ct ) (the Pierre case) In the endorsement made by the Divisional Court at the conclusion of the hearing, the Court, per O'Leary J , stated We are all of the view that the Board was correct in its conclusion that the 20-day time period within which the " ~~. ~ 6 grievor had to bring her grievance began to run only when she became aware that she had a complaint which was based on a violation or possible violation of the collective agreement In our view, the "complaint or difference" referred to. in Article 27 2 1 of the collective agreement is the same kind of complaint(s) or difference(s) mentioned in Article 27 1, that is to say a complaint or difference "between the parties arising from the interpretation, application, administration or alleged contravention of this agreement, including any question as to whether a matter is arbitrable The grievor knew at least by November, 1985 that she was unhappy about a possible exposure to T B , but she was not aware until late February, 1986 that such exposure might constitute a complaint or difference with her employer arising out of a contravention by it of the collective agreement until she became so aware she could not have believed she had such a complaint It is implicit in the reasons of the Board that the grievor first became aware that she had a complaint based on a violation or possible violation of the collective agreement on February 25, 1986 when her Union representative told her she could file a grievance The grievor filed her complaint on March 4, 1986 well within the 20-day time limit for doing so The words 'ibe1ieves" and "becoming aware" found in Article 27 2 1 clearly establish that it is only the subjective awareness of the employee that she has a complaint arising out of a possible violation of the agreement that sets the 20-day time running In this case, the evidence is clear that the Grievor .was not merely "unhappy about" having, on occasion, to work more than the ~ minimum 36 25 hours a week as provided for in art 7 3 of the collective agreement He was also satisfied, from at least the commencement of the date of his first claim on June 17, 1992, that working more than 36 25 hours a week "might constitute a complaint or difference with [his] employer arising out of a contravention by it of the collective agreement II It was not the filing of the MacDonald grievance that gave rise to this awareness He had '=- .~. - 7 raised the matter with Mr Chan, and they differed as to the Grievor's right to payment of overtime as a Schedule 6 employee, and the Grievor believed that Mr Chan was wrong and that he was right in his view that he should, in some way, be compensated when he worked more than the minimum number of hours The Grievor never budged from his position with respect to the rights and obligations of a Schedule 6 employee He was adamant that art 7 3 meant that a Schedule 6 employee had to work only for 36 25 hours a week and that any other hours worked should be compensated at what might be calculated at 1 1/2 times his hourly rate, notwithstanding that Schedule 6 employees do not have art hourly rate Article 7 3 provides SCHEDULE 6 The normal hours of work for employees on this schedule shall be a minimum of thirty-six and one-quarter ( 3 6 1/4) hours per week The filing of the MacDonald grievance, in which the Grievor played ~ role as Union Steward, was based on Mr MacDonald ~ concluding, with the Grievor's assistance, that his not being paid overtime "might constitute a complaint or difference with his employer arising out of a contravention by it of the collective agreement " The Grievor's actions and statements are only consistent with his having such knowledge and belief, at least from the date of his first overtime claim A fundamental difference between his case and that of Mr MacDonald's, is that Mr MacDonald ~ - 8 i took timely action by filing a grievance and the Grievor, for whatever reason, sat on his rights Although "subjective," the "awareness," referred to in the Pierre, case that the action(s) of the employer "might constitute a complaint," does not require a particular level of "awareness" The Board must examine the evidence as to the Grievor's awareness It is not enough for him to say he was unaware of a possible claim The Board must determine if that was, in fact, the case In Pierre, the Divisional Court examined the evidence to determine w~en the grievor in that case became aware of a possible complaint When this is done in the case before us, there is ample evidence to show the necessary awareness to start the 2o-day time limit running, from at least the date of the first claim for overtime An employee does not have to believe that he has a claim that has been recognized by arbitral jurisprudence of the Board In this case, the Grievor's belief went well beyond feeling unhappy He felt that the actions of the Employer might constitute a violation - of the collective agreement, at least from June 17, 1992 I recognize that the awareness referred to is subjective, however, Mr Mazziotta, who was a Union steward during most of the period material to this case, and who is both intelligent and knowledgable, knew that Mr MacDonald was a member of the unclassified staff, was not a Schedule 6 employee and was not ~- '" .- 9 subject to a,rt 7 It is more likely that the Grievor's decision to include a claim based on uncompensated overtime was made on November 17, 1992 (Exhibit 1) because such a claim was being made by Mr MacDonald in his grievance and not because that grievance served to alert the Grievor, for the first time, that he had a complaint based on not being compensated for working overtime To accept the position taken on behalf of the Grievor would allow him to decide whether he had the necessary subjective awareness without the Board being able to review such conclusion based on evidence that demonstrated otherwise That is not what was decided in Pierre, where the Board made an objective assessment of the grievor's subjective state of awareness The arbitrator in the MacDonald case, GSB 1085/92 (Deviin), which was decided on January 7, 1993, clearly differentiated between the case of a Schedule 6 employee and the grievor in that case, who was an unclassified employee to whom art 7 did not apply so as to deprive him of rights applicable to unclassified staff In any event, the MacDonald case was dealt with in accordance with the - expedited arbitration procedure provided for in the collective agreement (art 27) and has no precedential value To the extent that the grievance in this case is based on a claim for "equivalent time off" under art 13 7 1 because of the Grievor's claim that he worked a number of week end days off as a knowledgable member of the Union and as a Steward, he was familiar "- " 10 with that article and could not have had any doubt that there had been an alleged violation of it because of hi~ belief that he was "required to work on a day off" Article 13 7.1 provides Employees who are in a classification assigned to Schedule 6 and who are required to work on a day off, shall receive equivalent time off The Gri~vor did not take the position that he did not know of that article or what it meant Accordingly, to the extent that the Grievor's claim is based on a violation of art 13 7 1, all such claims are restricted to the period 20-days prior to the filing of Exhibit 1 Counsel for the Employer also submitted that the Board did not have jurisdiction to deal with any "overtime" claim that relates to the period after the grievance was filed Counsel for the Union argued that the Board was faced with a continuing grievance which did not require the Grievor to file a new one for every recurring breach The right of an arbitrator to rely on post-grievance evidence is the stibj ect of comment in Brown and Beatty, Canadian Labour Arbitration, 3rd edition, para 2 1418 However, where the breach is a continuing offence, it has been held that the rule applied in commercial arbitration to the effect that the date of the submission to arbitration is the prospective cut-off date for assessing damages, ought not to apply, and that the assessment should be made up to the date of hearing -~----_.~...._--- -~ - - - 11 Reference is made in Brown and Beatty to the following cases in support of the above statement Cape Breton Regional Hospital/Sydney City Hospital (1994), 43 LAC (4th) 220 (Veniot); Hotel Dieu de Montreal (1989), 9 LAC (4th) 401 (Frumkin); Beach Foundry Ltd. (1974), 7 LAC (2d) 313 (Abbott) At P 316 of the Beach Foundry case, the arbitrator notes that Russell on the Law of Arbitration, 17th ed (1963), at p 53, is "authority for the principle that the date of submission is the cut-off point, after which damages cannot be assessed by an arbitrator." At pp 324-5, the arbitrator states I am not satisfied that the principle enunciated in Russell on Arbitration that the date of submission to arbitration marks a cut-off point is a principle which can or should be applied to the determination of damages for a continuing breach of a collective agreement in the labour relations context I have been unable to find any previous award on the issue, nor was I referred to any by the parties' representatives I find the arguments put forward by the union to be highly persuasive It appears to me that the arbitration stage in grievance resolution is generally treated by the parties as an integral part of the process The observable fact is that a considerable delay can and most often does elapse between the conclusion of negotiations between the parties over a grievance and the actual hearing into the - grievance by an arbitrator or board of arbitration The decision to refer the matter to arbitration is almost invariably one which is confined by a time limit, that is to say, the party having carriage of the grievance must act to refer it to arbitration within a limited time or risk the loss ~f the right to refer the grievance to arbitration But the period thereafter is subject to few if any time limits (In this case, the parties in cl 10 01 of their collective agreement have only provided that, after notice is given by one party to the other of its desire to submit a grievance to arbitration, there is a five-day limit on their efforts to mutually agree on an arbitrator after which they must jointly apply for the appointment of an arbitrator by the Minister of Labour ) What is important is that the parties cannot effectively -- = 12 by agreement set time limits on what then takes place Neither party can, by its own efforts, shorten the period up to the hearing Yet during that time, in the case of an alleged continuing breach of the collective agreement, losses can and likely will be incurred by the party who is the victim of the alleged breach It seems unfair that [sic] party be precluded from recovering those losses when, except in unusual cases, it could do nothing effective to reduce the period during which it sustains those unrecoverable losses It is not merely a matter of unfa~rness to preclude a party from recovering for losses occurring between the date of reference to arbitration and the date of the hearing The only readily available method to ensure recovery, namely, th~ submission of a fresh grievance for each day the alleged breach continues after the date of submission to arbitration, is highly inconvenient and could lead to absurd and unintended results Each one of these fresh grievances would have to be dealt with by the laid-down processes of meetings and negotiations The party which is the victim of the alleged breach would be obliged to press each one of the grievances through each stage, up to and including arbitration, or risk the loss of each grievance through "want of prosecution " carried to the extreme, each grievance, referred to arbitration, might result in divergent or conflicting awards on what would be essentially the same issue between the parties Such a situation could not help but endanger the system for the final and binding settlement of disputes arising out of collective agreements For the foregoing reasons, I hold that my jurisdiction to fix and determine the compensation payable in respect of the continuing breach which I found to have occurred in my award of March 27, 1974, is a jurisdiction which extends throughout the period from the date on which the ~ grievance arose (July 6, 1973) to and including the date of the initial hear.ing in this matter (February 28, 1974) My reading of the Beach case satisfies me that the initial hearing took one day, being February ,28, 1974 I note that the rule followed in the Beach case is quite similar to that which applies in civil proceedings governed by the ~ 13 Courts of Justice Act R S 0 1990, c C 43, s 117, where the "damages, including damages for breaches occurring after the commencement of the proceeding, shall be assessed down to the time of the assessment" for "(a) a continuing cause of action; (b) repeated breaches of a recurring obligation; or ( c) intermittent breaches of a continuing obligation " See, Huston v. Lloyd Refineries Ltd. , [1937] OWN 53 at 56; and Rolston v. Lapa Cadillac Gold Mines (1937) Ltd. , [1950] 0 R 103; [1950] 0 W N 525 (C A ) In my view; the particular requirements of grievance arbitration before the Board will be served by the rule followed in the Beach case I find that the rule referred to in Brown and Beatty is more in keeping with the requirements of labour arbitration" that the Board issue an award that is final and binding on both sides and reduces the chance of "divergent or conflicting awards " Although the arbitrator in the Beach case did not refer to the rule that applies in similar circumstances in civil court cases, the rule enunciated by him, and by the - arbitrators in the Cape Breton Hospital and Hotel Dieu cases, is SUbstantially the same I am satisfied that the allegations concerning post-grievance events represent allegations of repeated breaches of a continuing obligation The allegations are based on repeated acts or omissions of the same kind as that for which the grievance was . , 14 filed Cf Hole v. Chard Union, [1894] 1 Ch 293, at 295-6, per Lindley L J , ~eferring to what is called a continuing cause of action What is significant in deciding if a grievance is a continuing one is whether breaches occurring after it was filed are of the same kind as those that occurred to the date of the filing In the HQlg. case, at pp 295-6, Lindley, L J stated [W]hat is called a continuing cause of action is a cause of action which arises from the repetition of acts or omissions of the same kind as that for which the action was brought In my opinion, that is a continuing action within the meaning of [the equivalent of s 117] The cause of action complained of and existing in the present case appears to me precisely the kind of mischief at which [so 117] was aimed, its object being to prevent the necessity of bringing repeated actions in respect of repeated [instances] of the same kind. ... I feel no doubt that the present case is a continuing cause of action within the meaning of [s 117] It is a repetition of acts of the same kind as those which have been investigated at the trial The above statement was approved in Toronto General Trusts Corpn. v. Roman, [1963] lOR 312, at pp 317-8, per Schroeder J A In the ~case, referring to the objection by the party whose conduct gave rise to the action, Lindley, L J stated, at p 296 To adopt the argument of the Defendants would be to render the rule altogether a nullity I note that in the codified rule of Equity, the jurisdiction of courts continues until assessment I see no reason to conclude " . 16 that the concept of a continuing violation is not limited to court proceedings After having carefully considered all of the submissions of counsel, I have concluded, for the reasons above stated, that the Board's jurisdiction permits it to deal with all the alleged violations that were referred to in evidence, from November 17, 1992 to July 7, 1995 From the language employed in Exhibit 1, it is apparent that the Grievor was also referring to a policy that the Employer had of giving time off to "others at a one to one ratio " Mr Chan testified that the Employer had a policy that permitted him, at his discretion, to grant compensating time off, outside of the provisions of the collective agreement, to employees who had worked "overtime" hours He stated that the granting of such time off was not a matter of right and was not given to all employees who worked "overtime " He awarded employees in accordaDce with the program when he considered their contribution as being exemplary and worthy - of a reward Because of the way the differences between the parties were resolved by the Minutes of Settlement of December 4, 1995, it is not possible to now pursue a claim on behalf of the Grievor that his not being granted time off under the program represented a form of discipline In any event, the program, the validity of which was " " 17 not the subject of attack, operates outside of the collective agreement and we cannot assume jurisdiction with respect to it Furthermore, no case was made based on an estoppel that would compel a finding that the Grievor is entitled to compensating time off under its terms. To the extent that the grievance can succeed, it must be on the basis that some right of the Grievor under the collective agreement to overtime payment or compensating time off has been violated In Kampman/Skelding, GSB 1193/89 etc (Roberts) , the Board endorsed the statement, at p ,5 the "fairness" doctrine was primarily applicable to the administration of specific provisions of the collective Agreement and was not available essentially to transform a voluntary act of management into an obligation which could be enforced against management in a grievance proceeding At p 6, the Board added it would hardly be conducive to good industrial relations to adopt a position which would allow voluntary benefits freely given by the Employer to be turned into binding obligations, even for the limited duration 9f an estoppel - The jurisprudence of the Board is unanimous in holding that Schedule 6 employees are not entitled to the payment of remuneration for working beyond 36 1/4 hours per week either on their scheduled days or on their scheduJ.ed days off The only benefit that they are entitled to, as of right, is to "equivalent time off" when they "are required to work on a day off " .. - 18 To the extent that the Grievor worked "overtime," that is hours beyond his minimum of 36 and 1/4 per week, he is not entitled to payment of overtime under the collective agreement The cases are clear that there is no hourly rate for pay purposes or defined maximum number of hours Employees assigned to Schedule 6 are paid a slight premium in recognition of the fact that they have no weekly maximum number of hours and that the exigencies of their positions require them to remain at work for a period which may, in the weekly aggregate, total more than the weekly minimum This requirement is an integral part of being an employee assigned to Schedule 6 Without more, the Grievor's claim for "overtime" for working more than the minimum hours would fail There was an argument made on behalf of the Grievor that there had to be a limit on the number of hours a Schedule 6 employee can be required to work without having to pay overtime or grant compensating time off As noted, the Grievor's position was that ~ limit was 36 1/4 hours per week The cases, including those filed by the parties, are unanimous in holding that there is no such 36 1/4 hour per week limit after which either overtime must be paid or compensating time off granted At the same time, there is no indication as to what would be an upper limit fj \ ;- 20 At least since June 17, 1992, when the Grievor appears to have commenced to keep a record of days on and off "overtime," he knew that he would only be required to work hours in excess of the minimum hours provided for in art 7 3 if he received a written request to do so from either Brian Cocker or Francis Chan See memorandum from Brian Cocker, Manager, Application Support HRISB, to the Grievor dated June 17, 1992 (Exhibit 19), which states I want to document our agreement, made at a meeting between yourself and Francis [Chan] and myself on June 17, 1992 You stated that you would not work overtime if asked to by your working co-ordinator [Mr Petrashko],even though he had on previous occasions, discussed the role of the working co- ordinators and their levels of responsibility Effective immediately, you will be required to work overtime as and when either Francis Chan or I request it We agreed that we would give these requests in writin9 Working overtime is not a requirement unique to yourself As we discussedl all other members of this section are working overtime at this critical stage in CORPAY, without the need for the above steps to be taken The requirement to work in excess of the minimum hours was clearly explained to all members of this section at a general meeting in early May In addition, the subject was further discussed at a meeting with you approximately two weeks ago I am satisfied from Exhibit 17 that the Grievor, Mr Chan and - Mr Cocker understood the term "overtime" as referring to hours worked beyond the minimum of 36 1/4 hours per week, and there was no intention to impose an obligation on the Employer to pay for overtime or grant compensating time off other than as is provided for in the collective agreement l"\ \ ~ 21 In the case of day off "overtime" for which compensating leave is granted, the Grievor knew that he would only be expected to work on his days off if requested to do so in writing There were some exhibits filed where such a request was made, and it appears that he did not follow them and did not work on those days The days he claimed for are not covered by a written request Three examples taken from the evidence are (1) Exhibit 18C is a memo from Francis Chan to the Grievor, dated Friday, October 30, 1992 at 8 15 P m This is to confirm our discussion today that you will come in tomorrow to complete the tasks as defined in Peter Petrashko's notes to you today Please recognize the urgency and criticality [sic] of completing the release to facilitate Yearend 92 in CORPAY Please send a [sic] E-Mail to Peter as you come in and send him one to document your accomplishments for the day before you leave Mr Mazziotta did not work the noted weekend (2) Page 10 of Exhibit 19, which is a memo to the Grievor from Francis Chan, dated Friday, January 8, 1993, at 8 26 P m - Per our conversation this afternoon on "catchup" of the project to meet Monday, January 11 due date, please work on the project on Sunday, January 10 in the office with A Petrash and others to complete testing Please leave me / Peter P an E-Mail on the status of the day The Grievor recorded working on Saturday, January 9, 1993, but did not report, as requested to, on Sunday, January 10, 1993 to work with other employees L ~ '1 .. 22 (3) Page 12 of Exhibit 19, which is a memo to the Grievor from Francis Chan, dated Thursday December 2, 1993, at 5 07 P m Please ensure the reports (per attached) are available for production on Monday, December 6 upon acceptance by your user contact so that this critical requirement can be met To meet this requirement, I strongly recommend that you plan to be in the office over the weekend to complete coding/testing and have the walkthrough portfolio ready for user signoff on Monday The Grievor did not work on either of Saturday, December 4, 1993, or on Sunday, Decemper 5, 1993 In the circumstance of this case, it cannot be said that the Grievor had been required to work on the days off for which he made an "overtime" claim I am satisfied that he insisted on receiving written requests from his senior supervisors to work overtime on both his working days and days off, which request was granted On the evidence presented, he did not respond to written requests to do so, but chose to work those weekends he decided upon, absent written requests, and ignored the few requests made for him to work on his days off An example of the Grievor working on his days off without authorization and then requesting payment is found in Exhibit 70 Although I am satisfied from the evidence that the Grievor believed he was engaged in a fight for his rights, in doing so he ignored agreements entered into with management and proceeded to act based on his understanding of what he had been directed to do, which understanding is not supported by the evidence - ~'-~ ~~ ~ ~. 23 Accordingly, his claims based on having worked on certain of his days off must also fail I would also note the statement of the Board in Tratnyek, 1875/87 (Fisher) at p 10-11 Since this is a monetary item, it is logical that management should be able to arrange the work force in such a way so as to decrease such extra payments Therefore, if management had the responsibility to arrange the grievor's hours, they could arrange them in such a fashion as to minimize the meal allowance Although Tratnyek dealt with the payment of meal allowance, the principle is appl icable to this case where management could arrange to have the Grievor work "overtime," as much as possible, on work days and not on his days off He could not choose to set his own schedule if he wished to claim equivalent time off pursuant to art 13 7 1 In addition to the claim for payment of overtime, counsel for the Union relied on an alleged breach of the coYlective agreement by the Employer in requiring the Grievor to work what was said to amount to an unreasonable number of hours in excess of the minimum of 36 1/4 per week that applies to Schedule 6 employees It was submitted that such breach ought to be compensated for by requiring the Employer to pay for overtime in excess of a reasonable number of hours or to grant compensating time off on an hour for hour basis for the excess hours the Grievor was said to have been ~ 24 required to work I note that no such claim was made in the grievance Such a claim does not appear to have been accepted as valid in any case decided by the Board, although the problem of how many hours a Schedule 6 employee can be made to work has be~n alluded to. In Fawcett, GSB 275/82 (Draper) , the majority of the Board stated at p 11- The definition of "normal hours of work" as a minimum might be seen to imply that there is no maximum But if it is open to the Employer to contend that there is no upper limit to the number of hours that the Grievor may be required to work per week, it is equally open to the Grievor to contend that there is no lower limit to the number of hours per day or the number of days per week he may choose to work, so long as he works at least 36 1/4 hours per week These, of course, are possibilities that do not accord with the realities of working life, not least because they are administratively impracticable; and, in fact, the Employer and the Grievor have recognized that practical considerqtions preclude so literal an interpretation of the article In Mellun, GSB 159/88 (Barrett) , the Board held, at p 4 It is to be noted that Schedule 6 employees have a minimum number of hours of work per week but no maximum Schedule 6 employees are not entitled to overtime pay pursuant to Article ~ 13 which covers overtime pay for all other Schedules of employees. The only entitlement under that article for Schedule 6 employees is to equivalent time of if they are required to work on a day off Thus it is conceivable that a Schedule 6 employee could be required to work 60 hours per week with no overtime pay Assuming, without having to decide this point, that such a claim is before the Board, I cannot accept that Schedule 6 I I employees can be required to work whatever number of hours the I -- ~ I.::i~ ~ . 25 Employer directs them to work If there is no implied upper limit, then they can be assigned to work 24 hours a day seven days a week, subject only to any statutorily imposed limitation After some reflection, Mr Chan acknowledged that this could not be what the parties agreed to Nor is it possible to set out an upper limit that will apply in all cases That limit will depend on the circumstances of the position and whether the assignment is related ) to a special case or is intended to go on indefinitely In this case, no evidence was presented that would enable the \ Board -t;o rule on an argument to the Employer should be assessed damages in the nature of payment for overtime or compensating time off for assigning the Grievor to work an unreasonable number of hours The hours that the Grievor was told to work beyond 36 1/4 per week by written direction, as was the subject of agreement, are not unreasonable in the circumstances The Grievor did not keep his supervisors advised of the hours he logged and they did not know how long he claimed to be working until that information was disclosed well after the hearing commenced It requires something - more than a bald assertion by the Grievor that he was required to work the hours he claims as overtime In Gallucci et al. GSB 1262/93 (Briggs) , the Board stated, at p 10 The Union argued that I should find that the Employer has acted unreasonably in the grievors' scheduling arrangement I was urged that I should either order the grievors to be re- classified or order the Employer to schedule appropriate hours .... v · 26 of work in accordance with Schedule 6 The only provision in the Collective Agreement that I can find that provides for the scheduling of hours of work for Schedule 6 employees is Article 7 3 which sets out the normal hours of work in a day and in a week There is no mention of the scheduling of those hours being assigned on a reasonable basis or on the basis of any other criteria I note that art 7 3 does not set out the normal hours of work in a day for Schedule 6 employees. It is therefore clear that the parties have recognized that Schedule 6 employees will not be entitled to overtime payment when they work beyond their minimum number of hours,. However, there must come a point when the scheduling of work is so extreme as to enable the Board to make a remedial order see the extreme example of a requirement being imposed on a Schedule 6 employee set out above On the facts of this case, there is no basis for considering the submission relating to the unreasonable assignment of hours of work Accordingly, and for the above reasons, the grievance is dismissed For the purpose in assisting the parties to avoid a recurrence of the difficulties that led to the filing of the grievances that were before the Board, I wish to make some additional comments Although all other grievances were settled, as above noted, I must Irefer to some of the incidents that gave rise to them in order to identify a means whereby grievances can truly be dealt with expeditiously and in a final way l~ is ~ .. 28 aimed only at insuring that the work assigned to the Grievor was done properly and within reasonable time limits Unfortunately, the obvious conflicts betw~en the Grievor and his supervisors were permitted to continue over too long a time without truly coming to grips with what was a festering situation Clearly there was a profound difference between the Grievor and his supervisors as to what his responsibilities were, insofar as they related to the outside number of hours a Schedule 6 employee would be expected to work in addition to the minimum of 36 1/4 hours per week Although the Grievor's claim in this case failed, the hours claimed by him as being necessary to complete the work assigned to him ought to have been of greater interest to his supervisors They knew that he was taking the position that the projects assigned to him could not be completed in a reasonable amount of time Although they b~lieved he was wrong and that he could have met, what they regarded to be, reasonable time limits if he had not wasted a good deal of time, a timely intervention would have disclosed what was a significant problem in June of 1992, and would J have allowed for proper managerial attention rather than largely endeavouring to deal with the matter through resort tq a blizzard of E-Mail Perhaps this did not happen because Mr Mazziotta's conduct appears to have evoked an emotional response on the part of his supervisors that was ill suited to dealing with the matter in a more direct way at an early stage so as to provide a better basis for avoiding the bitterness that was expressed in the grievance and .~ ~ ~ ~ 29 at the hearing by all who testified Mr Mazziotta was also extremely agitated by his perceptions of the actions of management Nevertheless, and notwithstanding the somewhat diffident approach~, of his supervisors in getting to the heart of the ongoing dispute, I am satisfied that he did not misunderstand the limits of his freedom to decide what was overtime for the purpose of being paid or receiving compensating time off See Exhibit 19, referred to above All of those involved in the grievances must learn something from what has happened and take steps to try to avoid the mistakes of the past I have commented on the evidence, after examining it in an objective manner, in the hope that the Grievor and the representatives of management will be able to accept what has been concluded If they are unable to do so, not much will have been achieved through this painful episode in their relationship In addition to the comments directed at management, it is necessary to tell the Grievor that there was an early opportunity for him to avoid the conflict with respect to his alleged entitlement to the - payment of overtime or compensating time off He should have, on June 17, 1992, informed his supervisors that he would be attending at work on certain of his days off and would be making a claim for compensating time off for time worked on those days and that he was keeping a record of his overtime for the purpose of making a claim This would have given them the opportunity to "head him off at the pass" by informing him that the directive of June 17, 1992 still ! ,~ '" . 30 applied and he was not required to work on his days off unless told to do so in writing He may have believed that he was required to do so, but should have taken the reasonable step referred to, rather than operate on an assumption that turned out to be unwarranted Mr Mazziotta also should have considered discussing with the Union his concern that he felt he was being required to work an unreasonable number of hours, without a cap being placed on them This was clearly a case t~at was intended to be dealt with by a policy grievance The Grievor could also have filed an individual grievance based on his view that he was not only being required to work hours in excess of those provided for in the case of Schedule 6 employees, but that those hours went beyond the reasonable upper limit that he could be ordered to work To permit a situation to worsen without taking action by filing a grievance at an early stage can only exacerbate an already bad situation In failing to do so, a grievor invites the not unreasonable conclusion that early resolution may not have been a priority - I must also comment on the effect of having Mr Petrashko, a bargaining unit employee temporarily assigned to a supervisory role as a working coordinator for over two years, placed in the invidious position of having to deal with Mr Mazziotta without apparent adequate support and intervention from higher management, when it became clear that Mr Mazziotta rejected Mr Petrashko's ~ -" '. ~.. 31 authority This failure further delayed the Employer's addressing the underlying and fundamental problem in a timely fashion Dated at Toronto, this. 15th day of May, 1998 ~ -/J i~ ~A.-:=.--J.,,-l MR. Gorskyd- Vice-Ch~r .... T Browes-Bugden, Member (Addendum attached) I .9 ~';f F Col J..ct - Member - ~ - ~ 0' ! " GSB # 65/93 etc , ONTARIO PUBLIC SERVICE EMPLOYEES UNTON (MAZZIOTT A) AND THE CRO\VNRIGHT OF ONTARiO (MlNISTRY OF GOVERNMENT SERVICES) ., '. ADDE~l)UM Based on the Jacts of this case, 1 agree with the reasoning as set out in the award. I However, r do appreciate the views of the gricvor,!vfr Mazziotta, \V1th regards to '"'the program" and the use of and reference to "overtime" Needless to say "the program'" adrmm~"tered by lhe Manager, Mr Chan, being discretionary and subjective caused the perceived belief ofunfaimess and mequIty for the grievor Although It IS mentlOned m the award., that it was not managements Intention to pay overtime, the tradItIOnal meaning and repetitIve use of the word "overtIme", I beheve remforced Mr Mazziotta belief in hj~ right to compensation. Given these circum.stances,.Mr Mazzlotta's Vlews perhaps are reasonable. Furthermore. I wholly support the addltional comments that the Board provides, at page 26 and are represented to be constructwe and pfOactlve. - - , May 15, 1998