Loading...
HomeMy WebLinkAbout1993-0356.Lauzon.94-01-27 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE , SETTLEMENT REGLEMENT . BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO. M5G lZ8 ;l TELEPHONEITEU',PHONE (.J 16) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) M5G IZ8 FACSIMILE'TELECOPIE (4161326-1396 356/93 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before , THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Lauzon) Grievor - and - The Crown in Right of ontario (Ministry of Correctional Services) Employer BEFORE W Kaplan vice-Chairperson FOR THE S Andrews GRIEVOR Grievance Officer Ontario Public Service Employees Union FOR THE M Mously EMPLOYER Grievance Administration Officer Ministry of Correctional Services HEARING January 21, 1994 -- ~, 2 Introduction This case concerns the <February 16, 1993 grievance of Steven Lauzon, a Correctional Officer employed at the Cecil Facer Youth Centre in Sudbury In / brief, the grievor alleges that the employer improperly changed his assigned shifts on January 20 and 21, 1993 As it happens, the grievor was away sick on January 20th, but returned to work on the 21 st. By way of remedy, the grievor seeks a declaration of a violation and overtime compensation for the shift he worked on January 21 st. The case proceeded to a hearing before an expedited panel of the Board None of the material facts are in dispute Correctional Officers at the Cecil Facer Youth Centre work on a compressed work week. The terms of this compressed work week have been agreed to by the partIes and are set out in the Compressed Work Week Agreement (hereafter "the Agreement") This , Agreement has been in place for approximately five years. The gnevor's schedule for the week of January 18 to January 24, 1993 corresponds to week 13 of the Compressed Work Week Schedule The employer has a long-standing practice of changing shifts on week 1 3 of the schedule According to the agreed statement of facts, this is done regularly on week 13 with rare exceptions. The employer changes the schedule to cover various types of scheduling vacancies at minimal operating costs. The employer attempts to ensure, where changes to the schedule are required, that they are distributed fairly among all employees The grievor was notified on or before January 7, 1993 that his schedule for the week of January 18, 1993 would be changed On January 20, 1993, the grievor was scheduled to work from 0700 to 1900 This shift was changed to 1100 to 2300 On January 21, 1993, the grievor was scheduled to work from 0700 to 1500 ThIS shift ----. .--.--- ..---- I - 3 I was changed to 1500 to 2300 I I Union Argument hi the union's submission, the employer was bound to apply the terms of the Agreement. Some of the relevant portions of the Agreement are as follows The Ministry of Correctional Services and the Ontario Public Service Employees Union desire to enter into a compressed work-week arrangement to facilitate positive labour relations, to improve working conditions, to clarify shift scheduling and hours of work and other related issues Unless otherwise stated in this Agreement, all article of the Working Conditions and Employee Benefits Agreement apply to employees covered by this Agreement. j Article 2 - Hours of Work 2 1 The regular hours of work for all employees covered by this agreement will be twelve (12), or eight (8) hours per day or combinations thereof in rotation and will also be forty (40) hours per week averaged over the 3 week scheduling rotation The work schedule is reflected in Appendix "A", attached hereto and forms part of this Agreement. The work schedule, as indicated above, provides for employees to work specified shifts on a 1 3 week rotation In the union's submission, the effect of this Agreement, which incorporated a specific work schedule, was to prohibit the employer from changing that schedule in the -manner in which it was changed in this case without Incurring overtime obligations Mr Andrews pointed out that there was no 1100 to 2300 . 4 shift anywhere on the schedule, and he suggested that one reason was because, from an employee's point of view, this was an extremely disruptive shift In the union's submission, the creation of new shifts and the regular tampering with the schedule undermined the Agreement and violated both it and the Collective Agreement. In the union's submission, the employer could reschedule an employee from one existing shift to another existing shift as indicated on the work schedule for the particular day in question without infringing the terms of the Agreement or the Collective Agreement. It could not, however, create new shifts and schedule employees on those shifts By new shifts, the union meant shifts which either did not appear anywhere on the schedule or which were limited to certain days of certain weeks Mr Andrews referred to the Preamble to the Agreement, and argued that one way that this Agreement promoted good labour relations was by clarifying and fixing the shift schedule If the employer could change that schedule whenever it wished that objective would be undermined Mr Andrews asked that the grievance be upheld, that a declaration of violation be issued and that the employer be direct~d to pay the grievor overtime for the re-scheduled January 21, 1 993 shift. Employer Argument In the employer's submission, the evidence did not establish any Collective Agreement breach. Mr Mously began his submissions by referring to Article 1 0 1 of the Collective Agreement. This provision states. Shift schedules shall be posted not less than fifteen (1 5) days in advance and there shall be no change in the schedule after it has been posted unless notice is given to the employee one hundred and twenty (120) hours in advance of the starting time of the shift as originally 0 5 scheduled If the employee concerned is not notified one hundred and twenty (120) hours in advance he shall be paid time and one-half (1-1/2) for the first eight (8) hours worked on the changed shift provided that no r premium shall be paid where the change of schedule is caused by events beyond the ministry's control Mr Mously noted that the grievor was notified considerably more than 120 hours prior to his shift of the change That being the case, he asked that the grievance be dismissed \ I In support of this request, Mr Mously pointed out that notwithstanding the existence of the Agreement, the provisions of the Collective Agreement continued in force unless otherwise specified It was noteworthy, in this regard, that nowhere in this Agreement did the parties indicate that the \ employer had given up its Article 10 1 rights Indeed, the employer took the position that clear language would be necessary to support an assertion of this kind, and Mr Mously pointed out that not only was there no such language in the Agreement, the structure of the Agreement indicated that this was not the intention of the parties. In this regard, Mr Mously referred. to Article 2 2 of the Agreement which specifically indicated that a provision of the Collective Agreement would not apply There was no similar provision in the Agreement with respect to the non-applicability of Article 1 0 1, and in these circumstances, he argued that that Collective Agreement provision remained in effect. As it had not been violated, Mr Mously again urged that the grievance be dismissed Finally, the employer took the position that there was no evidence whatsoever of any employer bad faith Indeed, in his submission,. the evidence, including the on-going efforts of both parties to revise the Agreement so as to deal with I .~ ,~ 6 I certain difficulties then had arose under it, indicated good faith All that had occurred in this case was that the start and finish times of two shifts had been changed. The date of those shifts had not been changed, nor had their duration Not only was there no evidence of any employer bad faith, Mr Mously suggested that what evidence there was suggested that the employer only changed a shift when absolutely necessary, provided more than the minimum notice set out in the Collective Agreement to the affected employee and sought, whenever possible, to fairly distribute any necessary changes among all employees. For all of these reasons, Mr Mously asked that the grievance be "- dismissed Decision Having carefully considered the evidence and submissions of the parties, I have come to the conclusion that the grievance must be dismissed Clearly, the parties have, in their Agreement, agreed on a specific scheduling system for ~ the Compressed Work Week Obviously, any changes to a schedule in a Compressed Work Week will significantly affect employees because of the nature of a compressed work week. I cannot, however, find, that the parties have, anywhere in this Agreement, evidenced an intention to eliminate the applicability of Article 10 1 of the Collective Agreement. And that being so, I can only find on the facts that the employer complied with the Collective Agreement and the Agreement, and that this grievance must, therefore, be dismissed In reaching this decision, I was influenced by the long-standing nature of the employer's practice, as well as by the fact that there was no evidence or allegations of any bad faith or arbitrary behaviour on the part of the employer in the changing of the shift schedules Indeed, the evidence is to the opposite ~.~ . ~, 7 effect and is illustrated by the lengthy notice of the forthcoming change given to the grievor Had there been evidence of deliberate disregard of the ~greed-upon shift schedule, I would have likely reached a d!fferent result. The evidence is not to that e.ffect. It indicates that the changes are made in just one week of the 13 week schedule, and that these changes are made with significant notice and because of bona fide operational requirements That fact, along with the fact that Article 10 1 continues to apply and was, in this case properly applied, leads me to the conclusion that this grievance should be dismissed DATED at Toronto this 27th day of January 1994 -tIiL~ ( - > ------------ William Kaplan Vice-Chairperson j \ ~ ON"",O EMPLOYES DE LA COURONNE , CROWN EMPLOYEES DEL 'ONTARIO ,;. 'e~ GRIEVANCE COMMISSION DE 1111 SETtLEMENT , REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO, M5G lZ8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE OUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) MSG lZ8 FACSIMILE /TELECOPIE (416) 326-1396 365/93 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (cammaert) Grievor - and - The Crown in Right of ontario (Ministry of Health) Employer BEFORE: B Kirkwood Vice-Chairperson I Thomson Member D. Montrose Member FOR THE K. Lawrence GRIEVOR Grievance Officer ontario Public Service Employees Union FOR THE S. Scotland EMPLOYER Compensation & Employees Relations Advisor Ministry of Health I I I n '" ~ \ BOARD ORDER Attached is the Memorandum of Settl~ment which the parties agreed would be made an Order of the Board DATED at Toronto, this 5th day of April, 1994 .~4~. B Klrkwood, Vlce-~rperson \ .' i / ~~ " 7'" ,_ {}:2' . -6;'~~--c--t J L Thomson, Member ( "'--.,. Q c= ~\,-7S~ D ~ontrose, Member I - -- MINUTES OF SETrlEMENT ... "'- '" .. IN THE MA ITER OF OPSEU AND THE MINISTRY OF HEALTH GSB #0365/93 (PAUL CAMMAERT) The parties hereto agree without prejudice and precedent to the following terms as full and final settlement of all matters .in dispute pertaining to the above captioned grievance 1 The employer agrees to assign Mr Cammaert to the vacancy of Workshop Supervisor, Instructor 3, (Occupational), at london Psychiatric Hospital in accordance with Article 24 5 of the Collective Agreement. 2 This assignment will commence on Tuesday, April 5, 1994 To facilitate a gradual rejentry to the workplace, Mr Cammaert will work for a period of three I days for the first two weeks and during the third week Mr Cammaert will work a four day week. By the fourth week Mr Cammaert will resume full time employment at the hospital 3 The employer agrees to restore all Mr Cammaert's 1993 vacation credits These credits were used to supplement short term sick leave benefits in 1993 4 Should a Rehabilitation Officer position become vacant at London Psychiatric Hospital the employer agrees, if it decides to fill the vacancy, to give serious consideration to Mr Cammaert's application ~ e G .. 1,) WI\'+. c......;5""\ ~f> -Ii> -l:f" ~~ ~~..., I~' ..........',.;.... "'- ~ ":S e. ....:>I~\.e.s~: \b rxf'V\. t .\bu. 2,. Ic:fC't; Q.LnS-t 5 The union an the grievor agree to withdraw the ove c~ne1 g evanc~ M~is-h-- ~ 6 The parties agree to make this. Settlement an Order of the Grievance Settlement Board Dated at ;;eOllJtl cJM , this ;;J3 day of /11 // /{ {/I 1994 , , On be~alf of th~~~ion~~-r: ~~ ' , On behalf of the Employer ~~ r€'-e<-- <4< Grievor c ~{J2U',.iy~.,.~.~r .- '" ( . I~ ( ,- ONTARIO EMPLOYES DE LA COURONNE ~ CROWN EMPLOYEES - DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE 1 . SETTLEMJ:NT .REGLEMENT "- BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO ONTARIO. MSG IZ8 TELEPHONE/TELEPHONE (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 2100, TORONTO (ONTARIO) MSG IZ8 FACSIMILE/TELECOPIE (416) 326- 1396 - 406/93 o.tg~rll( c"V.ro, IN THE MATTER OF AN ARBITRA~ION , Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Kozak) f Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer I Fisher Vice-Chairp~rson BEFORE: B. P. Klym Member F. Collict Member FOR THE G. Adams UNION Grievance Officer ontario Public Service Employees Union \ FOR THE D Strang EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING March 29, 1994 July 7, 1994 . ~ ( I - 2_1 This case involves the refusal of the Ministry to extend the Grievor's employment - \ beyond ag~ 65 pursuant to Section 17 of the Public Service Act, which reads as follows I 17 Every civil servant shall retire at the end of the month in which he or she attains the age of sixty-five years, but, where in the opinion of) the Commission' special circumstances exist and where the person's deputy minister so requests in writing the person may be reappointed by the lieutenant Governor in Council for a period not exceeding one year at a time until the end of the month in which he or she attains the age of seventy years. R.S 0 1980, c. 418, s. 17 The essential facts are not in dispute and can be contently listed as follows 1 The Grievor was employed with the Ministry from 1981 to 1990 as an unclassified COat Mimico Correction Centre. 2. From 1990 to February 25, 1993, the date he turned 65 years of age, the Grievor was employed as classified C 0.2 at Mimico Correction Centre 3 On December 2, 1992, the Grievor requested that his service be extended an additional one year 4 The person responsible for making the decision as to whether or not to extend the Grievor's employment was Mr R.Q Phillipson, Regional Manager, Metro Region. Unfortunately, he did not testify at the hearing so we do not know what criteria he used in making his decision. . -3- 5 However, we do know that Mr Phillipson was supplied with various information and recommendations from certain subordinates, including Mr Leithhead, Superintendent, Mr Haden, Superintendent (A) and Mr B Thompson, Senior Assistant Superintendent. r 6 One piece of information that we know Mr Phillipson had in his possession at the time he made his decision was that the Grievor had been absent from work on WCB for a total of 108 days in 1991 and 1992. Furthermore, botb Mr Leithhead a~d Mr Haden made specific reference to the Grievor's health (as evidenced by his WCB absences), as grounds for their recommendation not to extend the Gri.evor's appointment. The Union contends that the Employer's consideration of the Grievor's WCB absences is contrary to Article "A. 1 " of the Collective Agreement, whiC;;h reads in part as follows. / "There shall be no discrimination based on ha.ndicap as defined in Section 10(1) of the Ontario Human Rights Code" The relevant section of Section 1 O( 1) of the Code reads as follows "because of handicap'" means for the reason that the person has or has had, or is believed to have or have had, , ) /' . -4- (e) an injury or disability for which benefits were claimed or received under I the Workers Compensation Act. The Employer's position is two fold (a) There was no evidence to prove that the decision maker, Mr Phillipson, even considered the WCB absences when he made his decision. They admit that Mr Phillipson's subordinates considered it relevant, but there was no proof that Mr Phillipson himself considered it relevant. (b) Even if Mr Phillipson did consider the WCB absences, the Grievor's remedy is to file a complaint with the Ontario Human Rights Commission as the GSB has no jurisdiction to entertain such a grievance Let us deal with the "no evidence" issue first. Mr Phillipson was not called as a witness by either party, which is unfortunate as he should have been called by one of the parties The Employer should have called him as he was the decision maker The Union, once they realized that the EmplQyer was not calling Mr Phillipson, could have called him themselves l In any event, he was not called and we are left to decide this issue based on the evidence we heard and the natural inferences we can draw from those facts. Besides the fact that Mr Leithhead, Mr Haden and Mr Thompson (who all played roles in .