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HomeMy WebLinkAbout1993-1676.Naish.95-02-02 - -- --- -- - - ------ '\~ 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. MSG 1Z8 TELEPHONEITELEPHONIE: (416) 326-1388 180, RUE DUNDAS PUEST BUREAU 2100, TORONTO (ONTARIO). MSG 1Z8 FACSIf.i1ILE ITE.LECOPIE (416) 326-1396 GSB# 1676/93, 2500A/93 OPSEU# 93E637, 94B333-335 1 IN THE MATTER QF AN ARBITRATION Under THE CROWN BMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Naish) Grievor - and - The Crown in Right of Ontario (Ministry of Labour) Emp~oyer BEFORE O. Gray Vice-Chairperson FOR THE J. Gilbert GRIEVOR Grievance Officer Ontario Public Service Employees Union FOR THE G Sutton EMPLOYER Chief Staff Relations Officer Ministry of Labour HEARING January 25, 1995 - " - I i- f ,'" :, Decision These grievances come before me as a smgle arbItrator pursuant to Article 27 18 1 of the relevant collective agreement. The Facts Before the heanng, the parties agreed to the followmg facts: The parties agree to the following as the agreed statem~ntof facts. pursuant to Article 27 18.4 of the Collective Agreement without prejudice in aily other matter 1. The grievor, Mr David Naish, is an Occupational Health and Safety Inspecto~ employed by the Ministry of Labour in the Peterborough office. The grievor has been with the employer since November 1980. 2. On August 16-31, 1993 the grievor was assigned to on-call work pursuant to Article 16 of the Collective Agreement outside of normal work hours. 3. While the grievor was on call on August 17, 18, 20 and 26th he received a call on each one of those days to do authorized work which consisted of contacting different individuals by phone to resolve issues. The grievor did in fact resolve all of the incidents over the phone and a field visit was not ,required. 4. The grievorsubmitted his time sheet at the end of August 1993 indicating the hours to be paid in cash based on the grIevor's understanding of what lus supervisor had told him. 5. The employer returned the grievors time sheet on September 13, 1993 with the hours changed to be taken as time rather than cash and the grievor was cr~dited with 1.5 hours time for each occasion. 6. As a result the grievance dated September 13, 1993 OPSEU #93E637 (attached appendix A) was filed. ~ 7 The employer denied the grievance at the first stage on September 21, 1993 (attached appendix B). The entire local appendix to be put into evidence at \ the Hearing. 8. The union applied for stage 2 ofthe grievance procedure on September 30, 1993 (attached appendix C). 9. The employer failed to respond to the application for Stage 2 and the union applied for arbitration on October 27,1993 (attached appendix D). 10. A pre-arbItration meeting was scheduled for January 11, 1994 at wluch time the grievor met with his representative of the union to discus!S the case. The represElnta~ve advised the grievor that he was entitled to call back pay for - each one of those days. 11 During the prehearing, the employer raised a preliminary objection as there had been no Stage 2 meeting and further argued that the grievor's relief as requested at the prehearing was an enlargment of the complaint. ) -------~------~~---- 1- -'2 - ;j 12. As a result ohhis meeting the Union applied for a Stage 2 meetinq again- and put the employer on notice that in the Union's view the grievor was entitled to call back pay (attached appendix E). 13. Per the Union representatives advise the grievor filed a grievance on January 11,1994 specifically requesting call back pay as this was the first time the union was put on notice that the employer considered the relief requested as an enlargement. This grievance (attached appendix F) was assigned OPSEU #94B333. 14. The employer denied the Stage 2 grievance #94B333 (appendix F)on the basis that the grievor did not performJ a field visit and as a result he was only entitled to 1/2 hour of overtime. As well the employer objected to the timeliness of the grievance (attached appendix G) 15 The parties agree that any overtime pursuant to Article 14 (call back) is to be paid as cash unless the grievor agrees to take it as time. The imtIal gnevance of September 13, 1993 says STATEMENT OF GRIEVANCE I have been denied payment for time I worked Aug. 17, 18, 20, 26 overtime as I was promised by Martin Donat and as provided for in the collect~ve agreement. Article 13 SETTLEMENT DESffiED I want payment in full for, the overtime I .worked on the days listed above and interest and any other credits I am entitled to. rt IS apparent from its first stage answer of September 21, 1993 that at that pomt the employer thought the grievor's complaint was that he should have re- F celved money rather than being credited with compensating tune off. That an- swer referred to the agreement made by the parties on August 1, 1993 as! a Local AppendIX to the Sectoral .Framework agreement made on the same date under the Socwl Contract Act. It IS common ground that provisions of that Local Ap- pendIX had the effect of an agreement of the sort contemplated by ArtIcle 13.5 of the collective agreement: that employees who mIght otherwise be entitled to compensation m money for working overtime would Instead be compensated by an entitlement to take paid l~ave. The union agrees that If Artl~le 14 does not apply to the work referred to In paragraph 3 of the agreed statement of fact, then f the employer treated the grievor properly and the grievance should be dismIssed. ~ The employer failed to respond to the union's request for a stage 2 meet- ing, as required by ArtIcle 273.3 As a result, the first discussion of the imtlal gnevance occurred at the pre-hearing conference which the GSB scheduled after the union referred the gnevance to arbitratlon. At that meeting the umon as- ---- - - 1 --- t I II - 3 - z, serted that Articly 14 applIed to the work for which the grievor was claiming he had been demed payment. The employer objected that this amounted to an en- largement of the grievance. It also said that there ought to have been a stage 2 meeting. The union then offered to partIcipate In a second stage meeting with I respect to the first grievance. It also filecl the second, gnevance, expressly assert- I ing entitlement to the mInimum overtime pay prescribec! by Article 14. The em- ployer dId not take up the union's offer of a second chance at a stage ~ meetIng on the first gnevance. It objected to the second gnevance as untimely, and de.. j nied that ArtIcle 14 applied in any event. The employer Mimstry apparently had a policy that if an Occupational Health and Safety inspector voluntarily "on calf' was actually called upon to deal with a matter or matters ansing after hours, he or she would be compensated for the time spent at the appropnate overtime rate, but would receive the minimum call back pay contemplated by ArtIcle 14 only If he or she had to VISIt a worksIte and not if he or she was able to resolve the matter referred to them by speakIng to the people involved by telephone. That policy was challenged in a 1991 griev- ance by an Inspector named Mitchell. His gnevance was heard by a panel of the GSB In March 1993, but that panel's deCISIon was not released until November 1994 In the meantime, however, another panel heard and, on November 15, 1993, deCIded a SImilar issue In a gnevance Involving the Ministry of the Envi- ronment with respect to an EnVironmental Officer assigned to receive calls out- SIde regular office hours: Delaqws, 1599/92 (Tacon) That deCISIon held, as the ( decision on Mitchell's gnevance later dId, that the application of Article 14 IS not limited to circumstances in whIch the employee must return to the workplace or otherwise leave home In order to perform work, but would also apply to work per- fomied on the telephone at the employee's home. Issues and Argument The employer takes the position that the InitIal gnevance was only about whether the gnevor should receIve monetary compensation for the hours worked - on the days in question, and not about the number of hours' compensation pay- able with respect to those occasions. ~t says the claim that Article 14 applied was beyond the ambit of that grievance as wntten, and was untimely when made for the first time in January 1994. It CItes the deCISIon in KraJnovtC, 2049/90 (Low) ^'" l - 4 - It 1 m SUpport of the proposition that the initial grievance Cannot be enlarged so as to encompass the new claim. The union argues that KraJnovic and like decisIOns concern matters raised for the first time at the hearing of a grievance. Article 14 was raised by the union at its first dIscussion with the employer following the filing of the gnevance. HaVing faIled to particIpate m the grievance process beyond the first step, the employer Gannot fairly complam that it dId not learn of the umon's rehance on Article 14 until after the grievance was referred to arbitration. If that were held against the umon, the employer would be profitmg from Its own wrong In any event, the union says, It IS mappropriate to read the initIal gnevance as puttmg m issue only the form of compensation for the gnevor's work on overtIme and not also the quantum.. r The employer suggests that it was the release of the Delaqu~ decislOn m November 1993 that prompted the umon to raise Article 14 for th~ first time in January 1994, so that I should not suppose that it would have been raised at a second stage meeting had one been held on or before October 15; 1993, as the collective agreement required. The union also argues that If a gnevance based ArtIcle 14 Was sOIp.ethmg distinct from a claim about compensation for overtime, wluch it disputes, then the time hmlt for filmg such a gnevance began runmng only when the gnevor was subjectIvely and actually aware that ArtICle 14 could apply to his after hours work in August 1993 Tills follows from the wording of Article 27.~ 1 as inter- preted in Pu!rre, 0492/86 (Venty), Jud. rev denied (1990), 74 -O.R. (2d) 700 (Ont. DIV Ct.) sub nom The Queen m nght of Ontano as represented by the Mimstry of I . Correchonal Serv~ces v Ontano Publ~c Sermce Employees Unwn et al Based solely on the agreed fact that on January 11, 1994 a union representative "advised the..gnevor that he was entitled to call back pay," the union inVites me to mfer thatuntrl that date the grievor was unaware of the possible apphcatlOn of Article 14 to lus after hours work m August 1993 The employer mvites me to infer that the grievor was aware In the further alternative, the umon argues that I should extend the tIme hmit pursuant to subsection 45(8 3) of the Labour Relations Act The employer acknowledges that I have that power and that it has suffered no preJudIce by the I 1 -~ I 'f' - 5 - ~ ~ ( delay, but suggests that I should not exerCIse the power because there are no / reasonable grounds for such an extension. On the merits, the union argues that I should- follow the decislOns m De- laqu1,S, supra, and Mitchell, 3136/91 (Chamey) The employer offered no specific reason why I should not do that (if the timeliness or enlargement arguments failed), unles~a reference to the on call duty's haVing been voluntary was m- tended to be such a reason. Decision In Kra}nOVLC" the union took the position that it had no obligation to let the employer know the case it had to meet, and could present a health and safety complaint at the arbitration heanng notwithstandmg that the grievance referred to arbItration was on its face a complamt about the assignment of work and I. training and had been so characterized at every stage of the proceedings pnor to the hearing The panel found that a grievance about the assignment of work and trainmg was inarbitrable, having regard to the proVisions of the Crown Employ- ees' Collect we Bargammg Act then in effect, and' added that because the language of the grievance cannot reasonably be construed to encompass the health and safety concern which the union now urges on this Board as the basis of the grievance and in light of the nature of the grievance as prosecuted thus far, we must dismiss the grievance as filed asinarbitrable. In commg to that conclusion, the panel cited the followmg passage from Hough- ton, 0771/88 (Knopf), in which the umon had sought to present a health and safety.complaint at the heanng of a gnevance about work assignments. It is the opinion of this panel that steps }. and 2 of the grievance process are extremely important for the proper resolution of complaints. This grievance; as proces,sed, could not give effect to that mechanism of dispute resolution because the substance of the complaint was not revealed to the employer at the crucial early stages. Had it been, we could have been prepared to accept jurisdiction on the health and safety aspect of the grievance and process the case as such. But because it was not raised initially, and because we have no jurisdiction to amend or alter the grievance, we must deal with the grievance as it was framed. - The panel also cited tms passage from Warden, 1152/87 (Dissanayake) The Board agrees with counsel for the grievor that it is not essential that the grievance refer specu1.cally to a particular article in the Collective Agreement or v / ( ! i~ <l - 6 - T> . provision in the Act before it becomes arbitrable. Nor are we unduly concerned that the grievance did not use the phrase "health and safetY' and did not articulate a health and safety issue precisely In that we ieco~e that grievances are not written necessarily by legally trained persons, the Board will not refuse to accept a grievance merely.because of technical defects or imprecise language. All that is required is that the true nature of the grievance must be communicated to the employer ~, I In Sp~cer, 3126/92 (Gray), the board observed that There is a difference between the nature or substance of a dispute, on the one hand, and the factual particulars and legal arguments relied upon by the party who seeks to have the dispute arbitrated, on t~e other When arbitrating a dispute referred to it, the Board.is required to give the parties full opportunity to present their evidence and to make their submissions. In order to have that opportunity, each party must have reasonable notice of the case it must meet. A mere statement of the nature or substance of the dispute, such as may be set out in a grievance form, may not give the opposite party sufficient notice in that regard. An exchange of particulars of tl,te facts relied upon and an opportunity for consequent investigation may be required before a fair hearing can proceed. Particulars needed for the conduct of a fair hearing are often sought and obtained during the grievance procedure. The fact that such particulars are not exchanged before a dispute is referred to arbitration may affect how and when the hearing is conducted, but will not deprive the Board of jurisdictton to entertain relevant factual allegations and legal arguments merely because the responding party did not anticipate them when the matter was referred to arbitration. / \ Had the grIevorl not added the word and figures "Article 13" after the end of the first sentence of his mitial grIevance, it would have been quite difficult. to say that the grIevance as wntten dId not embrace the claim articulated by the union. The collective agreement does not require that a grievo,r identify in his or her grievance the particular collective agreement prOVIsions on wlnch he or she may rely. The fact that the grievor here mentioned one prOVIsion of the collective agreement in .his grIevance dId not and does not necessanly preclude later reli- ance on other prOVISIOns in support of his claim that he was not iproperly com- pensated for work he performed on the oCGa,sions In questIon. / I accept that the referral to arbitration of one gnevance does not gIVe the I arbItrator or arbitration board jurisdIction over an entirely different grievance. A grIevor's Initial wrItten statement of Ius or her grievance should not be expected - to do more than Identify in, a general way the matter about which he or she complains. WrItten grIevances should be interpreted in accordance with that ex- pectation when an issue of this sort arIses. In my VIew, the umon's reliance on Article 14 does not so enlarge the initial grIevance as to make it a different \ ~- -;,~ f - 7 - , ~, grievance. The initIal gnevance as elaborated was timely I do 'not need to de- termine whether the second grievance was tImely \ I agree with the interpretation of ArtIcle 14 in the DelaqutS and Mitchell decisions. It makes no difference to the grievor's entitlement under that article that he was voluntarily "on call" on the occasions when he was required to return to work. The gnevor was entitled to the minimum compensation prescribed by Article 14 on each of the occasions in question. The employer failed to give him that minimum compensation when It was due. It IS directed to compensate the gnevor for that failure. 1 shall remam seised wIth any "ISSUe as to the form or quantum of that compensatIon whIch the partIes are not now able to resolve themselves. t Dated this2J..ciay of February, 1995 i \. Owen V Gray, Vice-Ch r I ./ - I \ I