Loading...
HomeMy WebLinkAbout1993-1398.Chard.94-01-27 1" _ ... ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE CPMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100 TORONTO, ONTARIO, M5G IZ8 TELEPHONE/TELEPHONE (<l16) 326-1388 180 RUE DUNDAS OUEST BUREAU 2100 TORONTO {ONTARIO) M5G IZ8 FACSIMILE /TELE~COPIE (416) 326-1396 1398/93 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Chard) Grievor - and - The Crown in Right of ontario (Ministry of Correctional Services) Employer BEFORE W Kaplan Vice-Chairperson FOR THE B Daligadu GRIEVOR Grievance Officer ontario Public Service Employees Union FOR THE M. Mously EMPLOYER Grievance Administration Officer Ministry of Correctional Services HEARING January 21, 1994 r ( i' 2 Introduction This case concerns Kevin Chard's August 3, 1993 grievance in which he alleges that he was improperly denied an overtime opportunity None of the matenal facts are in dispute In brief, a twelve-hour overtime opportunity arose on July 26, 1993 There is an overtime policy in effect at the Brookside Youth Centre The relevant part of this policy states "Supervisors calling employees for overtime who have signed as available shall start at the top of the list and work down " When the overtime opportunity arose, the grievor was at the top of the list. Through inadvertence, the grievor was not called Instead, the opportunity was given to a member of the unclassified staff A grievance was filed and proceeded to a hearing before an expedited panel of the Board Union Argument The union takes the position that the employer has a posted policy with respect to the fair and equal distribution of overtime, and argues that it is bound by the policy Ms. Daligadu pointed out that the employer effectively confirmed the union's ,interpretation of the proper application of the poliCY in a post-grievance bulletin which was introduced into evidence In the union's submission, this would not bean appropriate case to order ~n in-kind remedy because the overtime opportunity had been given to a member of the unclassified staff Classified employees have first call on overtime opportunities and because this particular opportunity had been given to someone outside of the classified ranks the employer could not simply re-arrange future overtime opportunities so as to ensure an overall fair and equitable distribution of overtime Put another way, it would not, in the union's submission, remedy the breach to provide the grievor with another 3 overtime opportunity because overtime is distributed according to a list and to effectively insert the grievor at the head of that list would undermine the on-going entitlements of the grievor and other employees Employer Argument Mr Mously did not dispute the fact that the employer had made a mistake in not offering the overtime opportunity to the grievor first. However, in his submission, the Collective Agreement had not been breached Mr Mously referred to Article 1 ~ 2 1 which provides "In the assignment of overtime, the Employer agrees to develop methods of distributing overtime at the local workplace that are fair and equitable after having ensured that all Its operational requirements are met." This provision, Mr Mously argued, Imposed a general duty on the employer to distribute overtime fairly and eqUitably That requirement could not, however, be looked at in isolation Rather, what was required was a consideration of the distribution of overtime opportunities over a reasonable period of time, and if it was found that those opportunities had been fairly and equitably dlstnbuted over that period, the Collective Agreement could not, in the employer's view, be found to have been breached Mr Mously noted that there were many overtime opportunities in this particular place of employment, and that the record mdlcated that the gnevor had, at a minimum, received his fair share He asked that the grievance be r dismissed Should, however, the grievance be successful, the employer asked that I order an in-kind remedy In doing so, Mr Mously suggested that I conSider one of two alternatives. First, direct that the grievor be given the next comparable overtime opportunity Or second, direct the employer to create a special overtime opportunity for the gnevor that would not undermine any eXisting -, 4 entitlement to ordmary overtime opportunities Decision In my view, this grievance must succeed Obviously, the employer is bound by its written policy In this case, that policy indicates how this employer intends to discharge its obligations under Article 1 3 2 1 In another case, If there was no such policy, the interpretative approach suggested by the employer would have merit. , In this case, the provision must be interpreted in light of the employer's own policy That policy imposes an obligation on the employer to distribute overtime according to a specific list. The grievor was, at the relevant time, at the head of that list, and in failing to offer the grievor the opportunity both the Collective ~greement and the employer's own policy were breached It is now necessary to turn to the issue of remedy In some cases it is entirely appropriate to order an in-kind remedy Having carefully considered this issue, I am of the view that this is not such a case To effectively place the grievor at the head of the overtime list and grant him the next available overtime opportunity would, in my view, disadvantage the grievor as well as other employees whose entitlement to overtime would, as a result, be both delayed and reduced notwithstanding the fact that there may be frequent overtime opportunities at this particular place of employment. Had the employer properly administered its policy, thiS would not have occurred The purpose of a remedy is to place the grievor and the union in the position they would have been in but for the breach In the circumstances of this case, it IS both just and appropriate for the employer to bear the economiC brunt of its mistake as an in-kind award would not, gIven the manner in which overtIme is to be distributed in this particular workplace, remedy the breach ~ . 5 In reaching this conclusion, I considered the second alternative remedy proposed by the employer, but am of the view that it would not, for practicai and other reasons, be an appropriate resolution to this case I should note in passing that this case is simply about offering an overtime 'opportunity to the next employee on the list as the employer is required to do under Its own policy It does not involve any other situation such as, for instance, where the employer is required review the list and determine who should get the overtime given its obligation to distribute it fairly and equitably That issue did not arise in this case Nor was any dispute over the fact that the gnevor would have accepted the opportunity had it been offered to him. Accordingly, and for the foregoing reasons, I direct the employer to compensate the grievor for the missed overtime opportunity I remam seized with respect to the implementation of this award DATED at Toronto this 27t,h day of January 1994 'I!~ 't, ( -,.--------------- William Kaplan Vice-Chairperson