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HomeMy WebLinkAbout1995-0131.Latimer.04-06-28 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 1995-0131 1995-0132, 1995-2132 UNION# 95A500 95A501 96C063 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (LatImer) Grievor - and - The Crown m RIght of Ontano (Mimstry ofCommumty Safety and CorrectIOnal ServIces) Employer BEFORE Susan D Kaufman Vice-Chair FOR THE UNION Mr Nelson Roland Barnster and SOlICItor FOR THE EMPLOYER Mr Greg GledhIll Staff RelatIOns Officer Mimstry of Commumty Safety and CorrectIOnal ServIces HEARING June 22, 2004 2 Second Implementation DecIsIon In the ImplementatIOn DecIsIOn dated March 4 2004 I reserved on the Issue of statutory holIday pay The partIes have been unable to agree as to the gnevor's entItlement to statutory holIday pay and have asked me to determme the Issue On June 22, 2004 the partIes made mformal submIssIOns on thIS Issue The employer advIsed that It had now complIed wIth all the Board's dIrectIOns gIven m the May 24 2001 DecIsIOn to remedIate the workplace and none were outstandmg wIth the exceptIOn of the matter of statutory holIday pay and the gnevor's current health status and whether she IS now able to return to work. The employer advIsed that smce May 9 1999 the last day the gnevor had worked, It had placed the gnevor on an admmIstratIve schedule, whIch, It advIsed, IS a normal practIce wIthm the Mimstry It explamed that when an employee IS on an admmIstratIve schedule the employer calculates the employee's statutory holIday entItlements as though he or she were workmg 9 a.m. to 5 p m. Monday to Fnday On that basIs, It submItted, smce May 9 1999 for each statutory holIday whIch fell between Monday and Fnday It had paid the gnevor for 8 hours at her then regular hourly rate For thIS reason, It explamed, no notatIOns regardmg holIday pay appeared on the gnevor's paycheques It advIsed that the gnevor's CORP A Y cheque stub # 038816 dated 2/15/01 whIch mdIcates "HOLPAY ST 32 00 (hours) $70048" IS "an anomaly" mdIcatmg a payment to the gnevor for four 8-hour days whIch were" 1999 days m the bank" whIch the gnevor earned "before gomg on the admmIstratIve schedule" There IS a reqUIrement to pay those days out If they are not taken as holIday tIme on another date It submItted that compensatIOn at her regular rate of pay had resulted m the gnevor havmg been appropnately paid for statutory holIdays smce May 9 1999 3 The employer submItted that under Art. 2 of the CollectIve Agreement, the management nghts clause management had the nght to determme the gnevor' s work schedule and It had put her on an admmIstratIve schedule The only way to contmue the gnevor's salary IS on an admmIstratIve schedule whIch IS management's nght under Art. 2 As well, that IS the norm for the Mimstry An employee IS entItled to payment for the eleven statutory holIdays lIsted mArt. 47 If one of those holIdays falls on a Saturday or Sunday under Art. 47.2, the holIday IS moved to the next workmg day If New Year's Day falls on a weekend, an employee on an admmIstratIve schedule gets the followmg Monday as a paid holIday off Under the CorrectIOnal Bargammg Umt CollectIve Agreement ("COR"), Art. COR 13 deals WIth HolIday Payment. Art. COR13 3 mdIcates that It IS understood that Art. COR13 1 and 13.2 apply only to an employee who works the holIday and an employee who for any reason does not work IS not entItled to the premIUm pay m COR 13 1 and 13 3 As a result of those proVISIOns, an employee who does not work the statutory holIday IS not entItled to a day m the bank. The gnevor stated that pnor to May 9 1999 she had been workmg 12-hour ShIftS, whIch could fall on any day of the week, m rotatIOn. She said that she had been reqUIred to work statutory holIdays, and had been compensated by payment at tWIce her regular hourly rate for the twelve-hour ShIft, and as well, had receIved one day m the bank. (The employer confirmed that the gnevor had been compensated m thIS manner at that tIme for workmg statutory holIdays It advIsed that the day m the bank would have been paid out to the gnevor If It had not been taken as a holIday or day off by March 31 of the followmg year pursuant to Art. COR 13 6) The gnevor said that she belIeved that she had receIved an 8-hour day m the bank for each statutory holIday she had worked, and said that smce May 9 1999 the employer had paid her for the banked days She calculated her entItlement as follows 4 Year No ofStats If not worked Would have worked 1999 7 3x8x$21 60=$518 40 4x12x2x$21 60=$2073 60 plus 4 days III bank 2000 11 5x8x$21 89=$875 60 6x12x2x$21 89=$3152 16 plus 6 days III bank 2001 11 5x8x$22 32=$892 80 6xI2x2x$22.32=$3214 08 plus 6 days III bank 2002 11 5x8x$24.26=$970 40 6xI2x2x$24.26=$3493 44 plus 6 days III bank 2003 11 5x8x$24 85=$994 00 6x12x2x$24 85=$3578 40 plus 6 days III bank Total $1976288 These 28 days III the bank IS calculated as regular pa, receIved She asked that the Board dIrect that mterest be paid on those amounts On her behalf, It was submItted that the gnevor had not been on an admmIstratIve schedule when she went off work. The ImplementatIOn heanng of June 22,2004 IS the first notIce the umon had receIved of the employer havmg changed her schedule Changmg her schedule enabled the employer to aVOId paymg her what they were oblIged to ThIS was partIcularly mappropnate m the CIrcumstances that she had to go off work due to the employer's conduct. The employer cannot alter the gnevor's schedule to relIeve her of responsIbIlItIes whIch, but for theIr own conduct, she would have fulfilled. The Board should assume the gnevor's normal C 0 schedule contmued, and use the gnevor's figures ThIS IS not a normal case The mtenm order dIrects that she be kept on salary as If she were workmg. Statutory holIdays are an entItlement under Art. 47 The umon IS not gomg overboard and claImmg ShIft premIUms The collectIve agreement reqUIres notIce of a change of ShIft be gIven. The umon seeks the status quo before May 9 1999 whIch mcludes her entItlement under Art. 47 to statutory holIdays The gnevor's tIme off work smce May 9 1999 IS not analogous to or a SubstItute for a holIday She IS off work pursuant to an mtenm order of the Board. The Issue IS how do we deal wIth an entItlement to a day off wIth pay Her CIrcumstances should be recogmzed. We don't ask for tnple tIme for all the statutory holIdays She worked rotatmg ShIftS, consequently 50 50 IS fair She should be compensated for statutory holIdays as If she were workmg. 5 The employer submItted that the Board had concluded that the gnevor had been unable to work for medIcal reasons smce May 9 1999 There IS no reqUIrement for her to be gIven notIce of a schedule change It IS a longstandmg practIse An employee IS entItled to be paid for actual tIme off Under the COR Agreement, the gnevor was not authonzed to work the holIdays and dId not work them, so she IS not entItled to a day m the bank. The Board's Reasomng. When the gnevor dId not return to work after May 9 1999 the employer was entItled to take the admmIstratIve steps It deemed necessary to ensure that the gnevor's salary was contmued, mcludmg puttmg the gnevor on an admmIstratIve schedule It was wIthm ItS nghts as management to put her on that schedule, partIcularly after the Board's Fourth Intenm RulIng dated March 13 2000 whIch oblIged It to contmue her salary In the conclusIOns of the May 24 2001 DecIsIOn, the Board dIrected The gnevor IS to be compensated and made whole wIth mterest, for all loss of salary benefits and semonty she mcurred The Board also dIrected the employer to contmue to pay the gnevor's salary pendmg final determmatIOns as to remedy The gnevor has been unable to work smce May 9 1999 for medIcal reasons There IS lIttle doubt that the employer's conduct contnbuted to and aggravated her medIcal condItIOn, resultmg m her mabIlIty to work thereafter If the gnevor had been able to contmue workmg after May 9 1999 she would have done so on a rotatIOnal schedule, on whIch schedule she would have worked 12-hour ShIftS mcludmg weekends As the gnevor was not at work after May 9 1999 and was therefore not authonzed after that date to work on statutory holIdays, she lost the opportumty to work them That loss of opportumty IS a loss for whIch she IS entItled to compensatIOn, under the "make whole" 6 provIsIOn of the DeCISIOn. She IS not precluded from reCeIVIng that compensatIOn by Art. COR 13 of the collectIve agreement. Art. COR 13 does not lImIt the authonty of the Board to fashIOn a remedy In these most unusual CIrcumstances She IS not precluded from reCeIVIng that compensatIOn by the dIrectIOn to the employer to contInue to pay her her salary The dIrectIOn In the May 24 2001 DecIsIOn to make the gnevor whole for her losses authonzes and dIrects the employer to compensate her for her losses over and above the contInUatIOn of her salary There was no eVIdence from eIther party as to the frequency wIth whIch the gnevor had worked statutory holIdays before May 9 1999 The absence of that hIstoncal eVIdence makes It dIfficult to accurately IdentIfy the extent of her loss of opportumty and her entItlement to compensatIOn. However In VIew of the amount of tIme that has elapsed SInce the DeCISIOn was rendered, and In the Interest of resolvIng thIS outstandIng Issue as qUIckly as possIble, the Board wIll attempt to determIne the gnevor's entItlement USIng general pnncIples The gnevor wIll not be perfectly compensated for each loss she Incurred, but the compensatIOn ordered IS Intended to put her as close to the financIal posItIOn she would have been In had the employer's conduct not occurred. On June 22, 2004 It was not In dIspute that the employer had, SInce May 9 1999 paid the gnevor for statutory holIdays whIch arose on weekdays at a rate of eIght hours at her regular hourly rate of pay It was not In dIspute that when she had worked statutory holIdays before May 9 1999 she had been paid for that ShIft at double the then current regular hourly rate of pay and was allotted a day In the bank, whIch, If not taken as a paid day off by March 31 of the follOWIng year was paid out to her 7 Art. 473 provIdes Those employees whose work schedules are subject to rotatIng work weeks whIch Include scheduled weekend work on a regular or recurnng basIs shall have the Canada Day Remembrance Day Chnstmas Day BOXIng Day and New Year's Day holIdays desIgnated as July 1 st November 11 th December 25th December 26th and January 1st respectIvely and ArtIcle 47.2 shall have no applIcatIOn to these employees In respect of these holIdays I conclude that had the gnevor contInued to work after May 9 1999 Art. 47 3 rather than 47 2, would have applIed to her SIX of the eleven statutory holIdays In Art. 47 1 fall on weekdays each year FIve of them may fall on weekends from tIme to tIme though all five wIll not fall on a weekend In any gIven year As the gnevor worked a rotatIng schedule whIch Included weekends before May 9 1999 and consIdenng the contIngencIes of e g. Illness or InabIlIty for any other reason to work on a statutory holIday that she was scheduled to work on her rotatIng schedule, or her havIng chosen to take paid tIme off In lIeu of a statutory holIday and In the absence of any eVIdence to the contrary I conclude that the gnevor probably would have worked five of the eleven holIdays each year and IS entItled to be compensated for the loss of opportumty to have done so SInce 1999 at tWIce her hourly rate for the year In whIch the loss was Incurred. I conclude that she probably would not have been scheduled to work the other SIX of the eleven holIdays each year and that pursuant to Art. COR 13 4 where the holIday cOIncIded wIth her scheduled day off, she would have been entItled to receIve another day off In VIew of her current CIrcumstances sInce May 9 1999 she could not take the compensatIng leave to whIch she would have been entItled, and I conclude that the employer has properly compensated her for those SIX days by paYIng her her regular pay for the statutory holIdays On the representatIOns made before me, I conclude that SInce May 9 1999 the employer has paid the gnevor for eIght hours for each statutory holIday and that therefore It has already 8 compensated her for each "one day m the bank" for each of the five statutory holIdays that I have concluded she notIOnally would have worked each year I calculate the loss of the gnevor's lost opportumty to work statutory holIdays as follows 1999 5 days x 12 hours x $21 60 x 2 = $2,59200 Interest. 2000 mterest ($2,59200 x 049) $ 127.01 pnncI pal and mterest $2,719 01 2001 mterest ($2,71901 x 049) $ 133.23 pnncI pal and mterest $2,852.24 2002 mterest ($2,852 24 x 049) $ 139.76 pnncI pal and mterest $2,992 00 2003 mterest ($2,99200 x 049) $ 146.61 pnncI pal and mterest $3 13861 Total lost statutory holiday pay in 1999 and interest 2000 to end 2003 $3,138.61 2000 5 days x 12 hours x $21 89 x 2 = $2,62680 Interest. 2001 mterest ($2,626 80 x 06) $ 157.61 pnncI pal and mterest $2,78441 2002 mterest ($2,784 41 x 06) $ 167.06 pnncI pal and mterest $2,95147 2003 mterest ($2,951 47 x 06) $ 177.09 pnncI pal and mterest $3 128 56 Total lost statutory holiday pay in 2000 and interest 2001 to end 2003 $3,128.56 9 2001 5 days x 12 hours x $22 32 x 2 = $2,678 40 2002 mterest ($2,67840 x 034) $ 91.07 pnncI pal and mterest $2,76947 2003 mterest ($2,769 47 x 034) $ 94.16 pnncI pal and mterest $2,863 63 Total lost statutory holiday pay in 2001 and interest 2002 to end 2003 $2,863 63 2002 5 days x 12 hours x $24.26 x 2 = $2,911.20 2003 mterest ($2,911 20 x 03) $ 87.34 pnncI pal and mterest $2,99854 Total lost statutory holiday pay in 2002 and interest to end 2003 $2,998.54 2003 5 days x 12 hours x $24 85 x 2 = $2,98200 Total lost statutory holiday pay in 2003 $2.982.00 Total lost statutory holiday pay and interest to end 2003 $15,111.34 DeCISIOn. The Board orders and dIrects that the employer IS to pay the gnevor forthWIth $15 111 34 as compensatIOn for the loss of opportumty to work statutory holIdays and the resultant loss of 10 statutory holIday pay and mterest thereon up to the end of 2003 The employer shall pay mterest on $15 111 34 at the average post-judgment mterest rate for the first and second quarter of 2004 to the date of payment. The gnevor IS to be compensated by the employer for any addItIOnal mcome taxes Imposed upon her as a result of receIvmg a lump sum m lIeu of lost statutory holIday pay m the year she receIves them, subject to the consIderatIOns set out under the headmg "k) PotentIal Loss Due to Increased Tax Rate m Year of ReceIPt" m the March 4 2004 ImplementatIOn DecIsIOn. The employer IS to contmue to pay the gnevor's regular salary pursuant to the March 2000 Intenm RulIng and the May 24 2001 DecIsIOn, along wIth compensatIOn of 45 56 hours per year for lost overtIme and five statutory holIdays notIOnally worked per year pendmg the Issuance of a further order by the Board or untIl the partIes agree to other arrangements On June 22, 2004 the employer's representatIve acknowledged that the most recent medIcal report mdIcated that the gnevor was unable to work. That report was dated October 8 2003 Smce October 8 2003 there has been complIance wIth the dIrectIOns gIven m the May 24 2001 DecIsIOn and wIth the undertakmgs set out m the Board's August, 2003 rulIng, whIch may have an Impact upon the gnevor's abIlIty to work, and whIch should be canvassed WIth her doctor( s) Consequently Mr Roland, Counsel for the umon IS dIrected to proVIde the gnevor's speCIalIst, Dr I. or hIS successor wIthm 1 month of the date of thIS DeCISIOn, complete wntten documentatIOn regardmg all postmgs/assIgments at the Sudbury JaIl and at CecIl Facer Youth Centre, and wntten mformatIOn regardmg dates and tImes and other detaIls pertammg to Young Offenders Act or Youth Cnmmal JustIce Act trammg, and to request hIS wntten opmIOn as to whether the gnevor can return to work at thIS tIme or undergo preparatory trammg, or If not, the 11 date by whIch s/he or they antIcIpate that she can return to work or undergo preparatory trammg, If any and, If so whether s/he or they recommend that she return to work at the Sudbury JaIl or elsewhere Mr Roland IS dIrected to adVIse the gnevor's specIalIst of the matters set out at p 221 - 222 of the May 24 2001 DeCISIOn, and request hIs/her opmIOn regardmg those matters It would be apprecIated If the opmIOn/report could be provIded wIthm four months of the receIpt by the specIalIst of the request. The employer IS to promptly provIde Mr Roland the mformatIOn requmng the dates and tImes and other detaIls pertammg to Young Offenders Act or Youth Cnmmal JustIce Act trammg avaIlable The gnevor IS dIrected to promptly sIgn all releases necessary to authonze her doctor(s) to provIde thIS mformatIOn to Mr Roland. Mr Roland IS to provIde the specIalIst's wntten opmIOn, once receIved, to the employer's representatIve, Mr GledhIll Mr Roland and Mr GledhIll are to hold the mformatIOn contamed m the specIalIst's wntten opmIOn m stnctest confidence The contents of the specIalIst's wntten opmIOn at thIS pomt are to be dIsclosed only to me, pendmg the Issuance of a further order or untIl the partIes agree m wntmg to other arrangements I wIll remam seIsed WIth respect to all Issues pertammg to remedIes, mcludmg but not lImIted to whether the gnevor's salary wIll be contmued, and seIsed WIth respect to the orders and dIrectIOns gIven m the May 24 2001 DeCISIOn and m the August 28 2003 RulIng and March 4 2004 ImplementatIOn DeCISIOn as well as thIS DeCISIOn. I wIll also remam seIsed WIth regard to the balance of the remedy 12 If the partIes are unable to agree as to how to proceed once the specIalIst's wntten opmIOn/report IS receIved, they may arrange a further heanng through the RegIstrar of the G S.B Dated at Toronto Ontano thIS 28th day of June, 2004