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HomeMy WebLinkAbout1994-0031.SCARCELLO.95-05-03 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DEL'ONTARIO 1111 GRIEVANCE COMMISSION DE c , SETTLEMENT REGLEMENT c;~ c ~ '\.~ , BOARD DES GRIEFS ' ,-", ,,(1)- "'\ '-'\ \,_\ ....v v _\ .~ C \.j '> \X-' 180 DUNDAS STREET WEST SUITE 2100 TORONTO, ONTARIO M5G lZ8 TELEPHONE/TELEPHONE (416) 326- 180 RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) M5G lZ8 FACSIMILE/TELECOPfE (416) 326- GSB # 31/94 OLBEU # OLB253/93 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OLBEU (Scarcello) Grievor - and - The Crown in Right of ontario (Liquor Control Board of ontario) Employer BEFORE N Backhouse vice-Chairperson J Carruthers Member F Collict Member .., FOR THE J Noble GRIEVOR Legal Counsel ontario Liquor Board Employees Union FOR THE M Kennedy EMPLOYER Counsel Hicks, Morley, Hamilton, stewart & storie Barristers & Solicitors HEARING March 13, 1995 - Page 2 - ( THE ISSUE The Gnevor alleges that the Employer faIled to pay him the premIUm rate for hours worked on a paid holIday THE FACTS ~~ The facts are not III Issue The Gnevor, a vax operator, commenced workIng a Shift at 10 42 pm on November 10th, 1993, WhiCh ended at 4 50 am on November 11th, 1993 The Gnevor was given the evemng Shift off on November 11 th, 1993 The Gnevor worked 4 days that week and received 5 days pay, thus haVIng the benefit of a day off With pay In respect of the holIday The relevant prOVISIOns of the Collective Agreemen t are as follows "7 1 An Employee shall be entitled to the following paid holidays each year New Year's Day, Good Friday, Easter Monday, Victoria Day, Canada Day, Civic Holiday, Labour Day, Thanksgiving Day, Remembrance Day, Christmas Day, Boxing Day and any special holiday as proclaimed by the Governor-General or Lieutenant Governor If, during the term of this Agreement, a public holiday is proclaimed by the Governor-General, such holiday shall be deemed to be a paid holiday 7 3 Where a paid holiday occurs on a Saturday or on a Sunday, employees will be granted a day in lieu of such paid holiday as allocated by the Employers 7 4 Where employees are required to perform work on a paid holiday (refer to Article 7 1) such employees shall be entitled to receive payment in the amount of three (3) times their regular ~-----~-- \ - Page 3 - straight time hourly rate of all hours worked on such holiday 7 5 For the purpose of this Article holiday means a day on which a holiday falls or the day that is allowed in lieu thereof when the employee is required to work on the day of the holiday" Both the UnIon and the Employer submitted that the relevant provISIOns of the Collective Agreement are clear and unambiguous The ~ UnIon submitted that Articles 7 I and 74 req uue the Employer to pay tnple the regular rate for the 5 hours worked by the Gnevor on the paid holIday In additIOn to beIng paid for the evenIng shift on November 11 th, 1993, whIch the Gnevor was given off In the alternative, the UnIon relIed upon past practise and estoppel The Employer submitted that the Gnevor was entitled only to be gIVen the paid holIday off under Article 7 1 The Employer argued that It would be a pyramidIng of benefits for the Gnevor to be paid In additIOn a premIUm for the hours worked on November 11th, 1993 and contrary to the arbItral junsprudence The Employer submitted that the definItIOn of "holIday" III Article 7 5 bolstered ItS argument The Employer submitted that where an employee was paid for a lIeu day, he or she was not "requued to work on a paid holIday" , the lIeu day becomIng the paid holIday by virtue of the definItIOn of "holIday" under Article 7 5 FINDINGS In the Board's View, the relevant prOVISIOns of the CollectIve Agreement are clear and unambiguous Under ArtIcle 7 1, the Gnevor was _..~ ~ ( - Page 4 - entItled to be paId for the Remembrance Day holIday The Gnevor was reqUIred to and dId perform 5 hours of work on Remembrance Day, a paid holIday, and accordmgly was entItled under ArtIcle 7 4 to receIve payment III the amount of two tImes hIS regular straight time for those 5 hours ( III addItIOn to the straight time for those 5 hours whIch he has already received) In our View, Article 7 5 has no applIcatIOn because the Gnevor was not given a day off m lIeu of the Remembrance Day holIday He was actually gIven off the evemng shift on November 11,1993 In our View, prOVidIng an employee a paid holIday under Article 7 1 and a premIUm for hours worked under Article 7 4 IS not a pyramldmg of benefits or, If so, IS nevertheless authorIzed by thIS Collective Agreement Article 7 3 prOVides that where a paid holIday falls on a Saturday or a Sunday (1 e a non-workmg day), employees wIll be granted a day m heu of such paid holIday ThIS suggests that the purpose of holIday pay In thIS Collective Agreement IS as part of the general wage package rather than Indemlllty for wages lost The purpose of the premI um rate under Article 74 IS different - ItS purpose IS clearly to compensate employees reqUIred to work on holIdays which most employees would prefer to have as their own leisure time We note as well that there IS no express prohibition In the Collective Agreement agaInst the pyramldmg of benefits As we find the language of Article 7 to be clear and unambiguous, we find It unnecessary to conSider past practise or estoppel In the result, we allow the gnevance and find the Gnevor to be - Page 5 - ( entitled to be compensated under ArtIcle 7 4 for the 5 hours the Gnevor worked on November 11 th, 1993 at two tImes hIS regular straIght time We shall remaIn seized In the event there IS any difficulty In ImplementIng thIS award DATED' at Toronto, this 3rd day of May, 1995. /J 0 g~- Nancy L Backhouse Vice-Chairperson ~ J Carruthers UnIon Member 9 ~L~t F c ~>---, Employer Member