HomeMy WebLinkAbout1993-0723.Cruz.94-03-07
ONTARIO EMPLOYES DE'LA COURONNE )
CROWN EMPLOYEES DE L'ONTARIO
.~ GRIEVANCE COMMISSION DE
1111
SETTLEMENT ,
REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO, MSG IZ8 TELEPHONE/TELEPHONE (416) 326-1388
180, RUE DUNDAS OUEST BUREAU 2.100 TORONTO (ONTARIO), M5G IZ8 FACSIMILE /TELE COPIE (476) 326-1396
723/93
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
,
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Cruz)
- Grievor
- and -
The Crown in Right of ontario
(Ministry of Correctional services)
E~ployer
BEFORE N. Oissanayake Vice-Chairperson
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FOR THE G. Adams .
GRIEVOR Grievance Officer
On~ario Public SerVice Employees Union
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FOR THE B. Ross
EMPLOYER' Grievance Administration Officer
Ministry of Correctionq1 Services I
I
HEARING February 28, 1994
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DECISION
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This matter was heard pursuant to the expedited
arbitration procedure contained in the collective agreement
between the parties
The grievor Mr. Adolfo Cruz is a Correctional Officer 2
at th~ Metro Toronto East Detention Centre. On April 12, 1993
he' was scheduled off on a normal d~y off April 12, 1993
happened to be a statutory holiday On AprilS, 1993 Mr. Cruz
made a request 'i:hat he be permitted to work on that day.
This request was denied. Unclassified staff were called in
and worked on April 12, 1993. In tlis grievance dated April
22" 1993, Mr. Cruz claims that. the employer's action was
unfair.
It is common ground that as a general matter the decision
on the staffing complement required for any particular day is
an exclusive function of the employer pursuant to section
18 (1) of the Crown Employees Collective Barqaininq Act.
Pursuant 1:;0 this management right, the employer has
established a written policy relating to staffing on stat\ltory
holidays. Mr. Kevin Cowie, Deputy superintendent of the
Toronto East Detention Centre testified as to the purpose of
the policy. He stated that on statutory holidays for a
variety of reasons the programming within the institution is
reduced and that there is a need to adjust staffing levels
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accordingly. ae testified that the written policy has always
been interpreted by the employer in such a manner that any
employee who is scheduled to be on his regular day off on a
statutory holiday is not inc~uded in the surplus officer list
from which employees are called in 'to work on statutory ~
holidays He testified that under the policy, the only
circum~tance under which such an employee may be called in to
work on a statutory holiday is where the employer has
exhausted the procedure for staffing set out in the policy
without being able to find the required number of employees.
The union submits that while the wording of the written
policy is not very clear, it can reasonably be interpreted to
include a broader range of officers in the surplus officer
list Such a broad interpretation would include employees
even though they are on their regular day off on the statutory
holiday. The union urged me to interpret the written policy
of the employer in that manner, and to direct that the grievor
be paid statutory holiday pay for April 12, 1993 as if he had
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worked that day
This grievance must fail. The employer has exercised an
exclusive management right and has unilaterally established a
policy on how to exercise it The evidence is uncontradicted
that the intent of the policy was to exclude employees who are
on their scheduled regular day off on a statutory holiday
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The policy has been applied in this manner consistently Even
if the union is correct that t~e language in the written
pOlicy is capable of a different meaning, I have no
jurisdiction to objectively interpret a policy unilaterally
established by the employer pursuant to its exclusive
management rights and to hold that the employer is bound by
it, when the evidence is clear as to what the employer
subjectively intended bY the language used
There is no- suggestion that there was any bad faith in
the manner in which the employer exercised, it~ exclusive
management right. Nor is it claimed that any provision of the
collective agreement had been contravened In the
circumstances, the mere fact that the employer used imprecise
language to put its intention into written form in a
management document gives the unio;n no rights which it
otherwise would not have had.
Accordingly, this grievance is hereby dismissed
Dated this 7th day o~ March, 1994 at Hamilton, ontario
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Nimal V Dlssanayake
Vice-ChairperSlon
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