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HomeMy WebLinkAbout1995-0627MAGLIOCOO95_11_16 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, M5G lZ8 TELEPHONE/TELEPHONE (476) 326-1388 780 RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) M5G 7Z8 FACSfMILE/TELECOPfE (476) 326-1396 GSB # 627/95, 628/95 OPSEU # 95A813, 95A814 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Magliocco) Grievor - and - The Crown in Right of Ontario (Ministry of the Solicitor General & Correctional Services) Employer BEFORE R J Roberts Vice-Chairperson FOR THE M Keys GRIEVOR Grievance Officer Ontario Public Service Employees Union FOR THE M Mously EMPLOYER Grievance Administration Officer Ministry of the Solicitor General & Correctional Services HEARING November 9, 1995 1 AWARD In thIs arbItratIOn, the gnevor claImed restoratIOn to her of vacatIOn credIts that she was reqmred to use m order to cover her absence from her scheduled shIft on Apnl 9-10, 1995 Tills was a 12-hour ShIft that extended from seven o'clock p.m. on April 9, 1995 to seven o'clock a.m. on ApnllO, 1995 It was submItted by the umon that under article 32.1 (c) of the collectIve agreement the gnevor was entItled to treat thIs absence as a leave WIth pay because she had been subpoenaed by the Gnevance Settlement Board ("the Board") to appear as a wItness m a proceedmg m Toronto at ten o'clock a.m. on April 10 The employer, on the other hand, took the pOSItIOn that artIcle 32.1 (c) dId not apply because the gnevor's absence was not" by reason of a summons or a subpoena as a WItness" WIthIn the meamng of artIcle 32.1 For reasons whIch follow, It IS concluded that the pOSItIOn of the employer IS supported by the prevaIlmg junsprudence of the Board and as a result, the gnevance must be dIsmIssed. At the heanng, the partIes entered the followmg agreed statement of facts 2 AGREED STATEMENT OF FACTS 1 The grievances of Shelli Magliocco (the grievor) dated April 8 and 20, 1995 are attached as exhibits 1 and 2 * 2 The grievances raise the issue of whether or not the grievor is entitled to pay when she is absent from work by reason of being subpoenaed to appear as a witness at the GSB The relevant provision of the Collective Agreement is Article 32 1 3 The grievor received summons to appear as a witness at a GSB hearing scheduled for April 10, 1995 A copy of the summons is attached as exhibit 3 4 The grievor lives in Cambridge, Ontario Travel time from Cambridge to Toronto is approximately 1 1/2 to 2 hours 5 On April 6, 1995, the grievor told Sharon Davis, Scheduling Officer, that she had been subpoenaed as a witness for the April 10th hearing and would need time off work in order to attend She requested time off from her shifts on April 8 and 9 The grievor did not provide a copy of the summons to Ms Davis nor did Ms Davis request a copy 6 The grievor was scheduled to work the night shift, 7 p m to 7 a m on April 8 and 9, 1995 7 Ms Davis told the grievor that she had to use her vacation or statutory credits in order to attend the hearing 8 By memo dated April 7, 1995, Ms Davis notified the grievor that she would be given a vacation day for the Saturday night shift (April 8 to April 9) 9 For the Sunday night shift (April 9 to April 10), the grievor was given a day off using her own credits 10 The grievor claims that she should not be required to us~ vacation credits for the time taken off .efrApril Q ~nd 9 t ~ attend the hearing, but should be paid her wages pursuant to Ci\~ Art 32 1 (?YT11 11 The parties agree that they are not limited to this statement of facts but additional evidence shall not be used to refute these agreed facts I . " she mIssed. Her pay was not affected at all. By way of example, Ms. Mitchell referred to an August, 1993 preheanng m HamIlton regardmg one of her own gnevances She had bemg scheduled to work the twelve-hour mIdmght sluft precedmg the date of thIS prehearmg. She was granted paId leave for tlus ShIft to allow her to attend the prehearmg. ArtIcle 32.1 of the collectIve agreement reads, m pertment part, as follows 32 1 Where an employee IS absent by reason of a summons to serve as a Juror or a subpoena as a WItness, the employee may, at hIS optIOn. ( c) treat the absence as leave wIth pay and pay to the Treasurer of OntarIO any fee he has receIved as a Juror or as a WItness. ThIS prOVISIon has been mterpreted on several occaSIOns by the Gnevance Settlement Board. In thIS regard, the partIes referred me to several awards, mcludmg one Issued by a Board that was chaIred by myself m 1988, Re Croft and Ministry of the Solicitor General (1988), G S B No 2287/87 (Roberts) In that case, an employee of the Mimstry had bemg subpoenaed to appear as a WItness at a heanng of the Board. As thmgs turned out, hIS testImony was unnecessary because the gnevance was settled at 12.30 p.m. The employee was thereafter mstructed to report for the sluft that he had bemg scheduled to work on that day The ShIft commenced at three o'clock p.m. The employee, however, dId not report for work. He claImed that he dId not thmk he was phYSIcally able to work on that day because he was stressed out and mentally tIred, havmg bemg an actIve partICIpant m the settlement negOtIatIOns. He took the posItIOn that he was absent from work "by reason of. a subpoena as a WItness" wIthm the meanmg of artIcle 32 I of the collectIve agreement. . '7 The Board concluded, however, that the absence of the employee was not covered by artIcle 32.1 The Board said, "At the very least, the 'by reason of language of ArtIcle 32.1 reqUires a causal lInk to be establIshed between the summons and the absence. And It would stretch matters consIderably to find that such a causal lInk eXIsted m the present case Bemg tIred falls far short of bemg mcapable of perfonmng your dutIes. It would have reqUired a much more substantIal showmg of mabIlIty to mduce tlus Board to forge the necessary lInk of causatIOn m the CIrcumstances of the present case." Id. at 5-6 The Board was unwillmg to equate merely bemg tIred With causatIOn. As a result, the absence of the gnevor could not be Said to have been "by reason of' hIs subpoena as a WItness. In 1990, the Board Issued an award m Re Sim and Ministry of Correctional Services (1990), GSB No 256/88 (Watters) The facts of that case resembled those m the present case, m that a gnevor whose case was to be heard by the Gnevance Settlement Board on one day sought paId leave for a twelve-hour mlClrught shIft she had bemg scheduled to work on the munedmtely precedmg day The gnevor reasoned that If she did not get tlus leave, she would have bemg reqUired to go for approxImately 33 hours With only two hours of sleep The employer, however, refused to grant paId leave and reqUired the grievor to use one of her own lIeu days to cover her absence for the shIft. Because thIS employee was a gnevor and not a subpoenaed WItness, her request was made under the prOVISIon of the collectlve agreement relatmg to paid leave for gnevors. ThIS was artIcle 27 6 1 of the collectIve agreement, entItlIng employees who are gnevors to be allowed "leave of absence wIth no loss of pay and WIth no loss of credIts, If requIred to be m attendance by the Board or Tribunal." The unIOn entered consIderable eVIdence on behalf of the gnevor m an attempt to demonstrate that leave was "reqUired" because the safety of the gnevor and her co-workers would have bemg placed at nsk If the gnevor had been reqUired to work. ExtensIve reference was made to the health and safety prOVISIOns of the collectIve agreement. Even though the Board accepted that If the gnevor had bemg forced to work her scheduled ShIft she could have posed a health and safety nsk to herself and others, the Board refused to conclude that the gnevor was entItled to a paId leave of absence by VIrtue ofbemg "reqUired" to attend at the Gnevance Settlement Board. Followmg a prevIOUS award of the Board, Re Roberts G S B No 2545/87 (Venty), the Board concluded that artIcle 27 6 1 "IS tnggered only where a hearmg IS scheduled dunng any tIme when a gnevor IS scheduled to work." Id at 8 It was concluded that the employer had satIsfied ItS oblIgatIOns under the health and safety proVIsIOns of the collectIve agreement by agreemg to grant the gnevor an unpaid leave for the ShIft m questIOn. The Board then went on In ItS award to IndIcate that It had some concern about enlargIng the scope of artIcle 27 6 1 beyond that establIshed m arbItrator Venty's award In Roberts The Board recogmzed that In the correctIOns context employees regularly worked mldmght ShIftS As a result, permIttmg paid leave for mIdmght ShIftS precedmg a day of heanng before the Gnevance Settlement Board mIght alter the finanCial oblIgatIOns of the employer under the collectIve agreement so profoundly as to constItute a forbIdden amendment of the collectIve agreement. It was suggested that thIS was a matter that was better pursued by the umon In negotIatIOns Id at 9-10 I .) In September, 1990, the Board Issued Its award m Re Brown and Ministry of Correctional Services (1990), G S B No 0992/89 (Wilson) In that case, not only the facts were close to those at hand but also, the gnevance was under the same provlSlon of the collectIve agreement, artIcle 32.1 (c) There, the gnevor had been summoned as a WItness at a tnal m provmclal court. He was demed paId leave under artIcle 32.1(c) for a twelve-hour mIdrught smft Immediately precedmg the day of tnal Rather than take an unpaid leave, he worked the ShIft, whIch ended at seven o'clock a.m. on the day of the tnal. He then went home, got ready for court and drove to the courthouse The tnal ended about noon and the gnevor went home and got about three and a half hours of sleep He then got up and reported to work for a second ShIft that was scheduled to commence, apparently, at seven o'clock p.m. He gneved the derual of paId leave DespIte compellmg eVIdence that by the tIme the gnevor reported for ms smft on the day of tnal he was exhausted, the maJonty of the Board derued ms gnevance. Makmg extensIve reference to the pnor award of thIS Vice-ChaIr m Croft, the maJonty concluded that the gnevor was not mcapable of performmg ms dutIes as a result of ms loss of sleep Id at 6 Apparently, an absence on the smft m questIon would not have bemg considered by the majority to be "because of' the summons as a WItness wItIDn the meanmg of artIcle 32.1 Had the facts of the Brown case been before me, I would have concluded that the gnevor was mcapable ofperformmg ms dutIes as a result ofms loss of sleep ThIs does not mean, however, that I would have gone on to conclude that the gnevor was entItled to relIef under artIcle 32 1 of the collectIve agreement. Followmg the lead of arbItrator Watters m Re Slm, supra, I would have ~- " " taken a cautIOus approach toward extendmg the accepted scope of artIcle 321m hght of the potentIal financIal consequences to the employer m the correctIOns context, where (1) many employees regularly work mIdmght smfts of twelve hours m duratIOn and, (2) bemg subpoenaed as a WItness m a gnevance arbItratIOn IS not an uncommon occurence Regardmg the health and safety concerns that were raIsed m Re Sim, It seems lIkely that I would have concluded that the employer could have satIsfied them by agreemg to grant the gnevor an unpaId leave for the ShIft m questIOn. The matter of extendmg artIcle 32.1 of the collective agreement would appear to be better pursued at negotiatIOns rather than at arbItratIOn. Tills bnngs me to conSIderatIOn of the case at hand. Rather than work the mIdrught ShIft that was scheduled for the everung precedmg the heanng, the gnevor WIsely deCIded to use her vacatIOn credIts to permIt her to take the ShIft off. Domg so undoubtedly allowed her to get the sleep that she needed. Had she not been subpoenaed as a WItness she would not have been reqUired to take the sillft off at her own expense m order to get her sleep Tills does not mean, however, that her absence from the ShIft was "by reason of' the subpoena wIthm the meanmg of artIcle 32 1 of the collective agreement. Before concludmg that an absence was "by reason of' a subpoena, the Gnevance Settlement Board has conSIstently reqUired a shOWIng of a more substantial causal connectIOn between absence and subpoena than aVOidance of loss of sleep The CIrcumstances of the present case do not appear to prOVIde any ground for reachmg a dIfferent conclUSIOn. As to the eVIdence of the gnevor and Ms. Mitchell regardmg the more liberal treatment of theIr q past claIms under artIcles 32.1 and 27 6 1 of the collective agreement, It was agreed that tills was msufficIent to show the eXIstence of a past practice of admlll.lstenng these provisiOns m a more liberal manner At most, the eVIdence showed that a partIcular supenntendent m the past, and specIfically m 1993, may have mterpreted these provlSlons more broadly than necessary gIven the Junsprudence of the Board. In the result, then, the gnevance must be dIsmissed. Dated at Toronto, Ontario, thIs 16 day of November, 1995 -