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HomeMy WebLinkAboutP-1996-0082.MothersoleKennedy.00-05-25 Decision - -. '"'-- - ...... -- , r..-- BE; PSGB # P/0082/96, P/0099/98 IN THE MATTER OF AN ARBITRATION Under THE PUBLIC SERVICE ACT Before THE PUBLIC SERVICE GRIEVANCE BOARD BETWEEN RIchard Mothersole & John Kenned, Grievor - and - The Crown III RIght of Ontano (Mimsm of the SolIcItor General and CorrecTIonal ServIces) Employer BEFORE D JD LeIghton Vice ChaIr FOR THE John Kenned, GRIEVOR FOR THE Chnstopher Jodhan EMPLOYER Counsel, Legal ServIces Branch Management Board Secretanat HEARING Ma, 19 2000 Mr John Kennedy and Mr Richard Mothersole were employed at the MetropolItan Toronto West DetentIOn Centre (TWDC) as OperatIOnal Managers (OM-16 Schedule 5) dunng the Ontano ServIce Employees Umon (OPSEU) stnke whIch occurred from February 25 1996 to March 3 1 1996 Mr Mothersole filed hIS gnevance on May 6 1996 claImmg that gIven the extreme hardshIp he endured dunng the OPSEU stnke that he should be compensated at tIme and a half for all hours of the stnke (847 5 hours) Mr Kennedy filed hIS gnevance on December 7 1998 claImmg that operatIOnal managers at MimIco CorrectIOnal Complex were paid tIme and a half for 160 hours each week and gIven 8 hours lIeu tIme per week or 800 hours of overtIme and 40 hours of lIeu tIme for the whole stnke, and that therefore he was entItled to the same compensatIOn. The employer took the posItIOn hat the gnevors had been paid properly under Order-m CouncIl 2161/90 and the board's decIsIOn m O'Donnell and Mimstrv of SOlICItor General and CorrectIOnal ServIces (1997) P/0023/96 (LeIghton) There IS no provIsIOn m the OIC for payment of overtIme when the operatIOnal managers leave the mstItutIOn. The Issue before thIS board IS whether the gnevors should be compensated for tIme not spent m the mstItutIOn, when they were permItted to go home Mr Kennedy testIfied that TWDC IS a maXImum secunty mstItutIOn whIch housed at the tIme approxImately 800 offenders, mcludmg some of the most dangerous m the system. Before the stnke began the operatIOnal managers were called to a meetmg by the supenntendent of the mstItutIOn, Mr Denms PhIllIpson. Mr Kennedy testIfied that when the subject of compensatIOn for work dunng the stnke was raised, Mr PhIllIpson said that the operatIOnal managers would receIve "sIgmficant recogmtIOn." He testIfied that they normally got paid for overtIme so they understood "sIgmficant recogmtIOn" to mean somethmg more than sImply overtIme pay for overtIme worked. Mr Kennedy testIfied that the operatIOnal managers at TWDC went to the meetmg of February 25 the day before the stnke began and dId not leave agam for twelve to fourteen straight days He worked 20 hours a day under dIfficult and stressful CIrcumstances He slept m a trailer normally used as an office, whIch was so small that he could not close the door when he lay down to sleep At one pomt m the stnke there was a sIgmficant problem gettmg food across pIcket lInes On one occaSIOn Mr Kennedy testIfied that he served pancakes the SIze of a hockey puck to 180 young offenders That was all they had to gIve them Mr Kennedy testIfied that on 2 the occaSIOns he went home he was so exhausted that all he dId was sleep In cross-eXamInatIOn Mr Kennedy acknowledged that Mr PhIllIpson never promIsed to pay operatIOnal managers for tIme spent at home at tIme and a half Mr Mothersole testIfied that he also expenenced extreme dIscomfort dunng the stnke He shared a small room wIth two others There were three mattresses crammed Into the space They had no sheets Mice crawled over them as they slept. The longest penod of tIme that Mr Mothersole was away from the InstItutIOn dunng the stnke was 30 hours He also testIfied that when he dId go home he slept almost the entIre tIme, only wakIng to eat. It was Mr Mothersole's VIew that gOIng home was essentIal to the managers beIng able to contInue workIng. If they had not they would have collapsed. Mr Mothersole also acknowledged In cross-eXamInatIOn that Mr PhIllIpson at no tIme promIsed to pay operatIOnal managers at tIme and a half for tIme spent out of the InstItutIOn. Mr Mothersole was questIOned about a summary of hIS overtIme hours taken from tIme sheets sIgned by the gnevor Mr PhIllIpson and other semor managers In the Mimstry Mr Mothersole said the tIme sheets were not accurate, but he acknowledged that he dId sIgn them. He was of the VIew that the tIme sheets reflected the schedule, whIch was not adhered to after the first few days of the stnke Mr Mothersole testIfied that he was not paid for 18 hours of overtIme work whIle he was In the InstItutIOn. Mr DavId Hanafin, an OM-16 Schedule 5 OperatIOnal Manager who worked at MimIco CorrectIOnal Complex dunng the stnke also gave eVIdence on behalf of the gnevors MimIco IS a medIUm secunty InstItutIOn hOUSIng approxImately 130 Inmates It was hIS eVIdence that he dId an eIght hour shIft on February 26th the first day of the stnke, and then went home He was called back that evemng and worked In the InstItutIOn, wIthout gOIng home, untIl the next Sunday OperatIOnal managers at MimIco slept In an empty dormItory dunng the stnke They were provIded wIth clean sheets, towels, tOIletnes and cIgarettes Dunng the stnke he went home four tImes, but was ready to be called back any tIme, even dunng those four rest pen ods By the second or thIrd day at MimIco there were IncreaSIng problems croSSIng the pIcket lInes and work refusals In the InstItutIOn. The operatIOnal managers spoke to Supenntendent Fred WillIams about how they would be compensated sometIme In the first two or three days of the stnke They had heard a rumour that they were not gOIng to be paid at the overtIme premIUm rate of tIme and a half 3 Supenntendent WillIams assured them that they would be paid tIme and a half for the overtIme Mr Hanafin testIfied that the operatIOnal managers at MimIco were paid for the entIre tIme of the stnke at the premIUm rate of one hour and a half of the regular pay Mr Hanafin testIfied that he dId not keep track of the hours he worked dunng the stnke, but the Supenntendent's secretary dId. Mr Hanafin agreed on cross that the stnke lasted 35 days or 847 5 hours He said that he was locked In for most of the stnke He acknowledged that hIS tIme sheets showed that he had been paid for workIng 754 hours overtIme, not for 840 Mr Hanafin dId not thInk the tIme sheet accurately reflected the work he dId. But he dId acknowledge sIgnIng the tIme sheets Ms KImberely O'Connell, Semor Human Resources Consultant wIth the Mimstry was charged wIth the responsIbIlIty of overseeIng the ImplementatIOn of the O'Donnell decIsIOn In 1998 ThIS reqUIred recalculatIng overtIme for Schedule 5 OM16s Ms O'Connell testIfied that Mr Hanafin worked 802 hours dunng the stnke He was paid for 754 hours of overtIme at tIme and a half Ms O'Connell testIfied that Mr Hanafin was not paid for the tIme when he left MimIco to go home In reply eVIdence Mr Hanafin testIfied that he dId not recall begInmng hIS ShIftS at mIdmght as the work sheet suggested. He seemed to remember gOIng home about 4 tImes to sleep at home at nIght, but the tIme sheets dId not reflect thIS He acknowledged agaIn In cross that he sIgned these tIme sheets The Grievors' Submission Mr Kennedy argued that operatIOnal managers at MimIco were paid for the whole stnke and therefore he and Mr Mothersole were entItled to be treated the same He submItted that Mr Fred WillIams, Supenntendent of MimIco approved these payments and semor management In the Mimstry also approved them. If senIor management approved payments for the whole stnke for one InstItutIOn then they should be approved for all InstItutIOns Mr Mothersole submItted that IfMr Hanafin was home overnIght on four occaSIOns, he was paid whIle he was away The tIme records do not show that Mr Hanafin was away overnIght when he was, In fact, away 4 The Employer's Submission The employer argued that OIC 2161/90 provIded for compensatIOn for overtIme to be paid at tIme and a half There IS nothIng In the OIC whIch provIded for overtIme to be paid when managers go home even for short rests Counsel for the employer cIted MacklIn et al. and Mimstrv of SOlICItor General and CorrectIOnal ServIces (1999) P/0100/96 et al (LeIghton) whIch decIded that there IS nothIng In OIC 2161/90 whIch would authonze payments for overtIme for tIme not worked out of the InstItutIOn. Counsel for the employer submItted that although the gnevors argued that all operatIOnal managers at MimIco got paid for the duratIOn of the stnke, the eVIdence was that Mr Hanafin dId not get paid thIS way He got paid for 754 hours of overtIme Counsel argued further that there had been no promIse to the gnevors to pay them overtIme for the duratIOn of the stnke, and therefore there was no estoppel establIshed. Therefore, counsel asked the board to dIsmIss the gnevances Decision The Issue before the board IS the same questIOn whIch was addressed In MacklIn et al The questIOn IS whether operatIOnal managers should be compensated for the whole penod of the stnke for penods of tIme that they were not In the InstItutIOn. The gnevors here are In part seekIng to be compensated for all the hours of the stnke because of the long hours and dIfficult cIrcumstances under whIch they worked. ThIS board has recognIzed In pnor decIsIOns and the eVIdence In thIS case shows that many operatIOnal managers worked In appallIng condItIOns and for long hours dunng the stnke OIC 2161/90 gave the government the dIscretIOn to pay overtIme and premIUm payments to certaIn elIgIble management employees However there IS nothIng In OIC 2161/90 whIch provIded that overtIme pay should contInue when managers went home to rest and sleep Further the gnevors acknowledged that thIS was never promIsed. The assurance from Mr PhIllIpson that they would receIve "sIgnIficant recogmtIOn" for all theIr hard work IS not enough to allow the board to find In the gnevor's favour PromIses for payments beyond what the OIC provIded must be clear and uneqUIvocal There was no eVIdence provIded of such a promIse The gnevors are also seekIng compensatIOn for the whole stnke penod because they belIeve the operatIOnal managers at MimIco were paid 800 hours of overtIme and gIven 40 hours 5 of lIeu tIme However the eVIdence dId not establIsh that operatIOnal managers at MimIco were paid thIS way Although Mr Hanafin seemed to remember that he went home four tImes dunng the stnke, hIS eVIdence was not clear It IS not surpnsIng so long after the event. So the best eVIdence IS the tIme sheet, recordIng hIS hours dunng the stnke whIch Mr Hanafin sIgned and whIch was used to calculate hIS overtIme pay Mr Hanafin was not paid for the tIme he went home The eVIdence IS clear that he was paid for 754 hours of overtIme and not 800 as alleged by the gnevors Thus the eVIdence establIshes that the operatIOnal managers at MimIco were not paid for the whole duratIOn of the stnke Mr Mothersole testIfied that he has not been paid for 18 hours of work done In the InstItutIOn. The partIes agreed that the Issue for me to decIde In thIS case was only whether the gnevors were entItled to overtIme pay for the hours spent outsIde the InstItutIOn. Counsel for the employer conceded that IfMr Mothersole worked the 18 hours, as overtIme, then he ought to be paid. No eVIdence was provIded to me on thIS Issue, sInce the partIes agreed to attempt to resolve thIS part of the gnevance on theIr own. I shall remaIn seIzed on thIS part of the gnevance ofMr Mothersole, should the partIes reqUIre assIstance Thus, havIng carefully consIdered the eVIdence and the submIssIOn of the partIes and for the reasons noted above, I hereby dIsmIss the gnevances, except as provIded above Dated at Toronto thIS 25th day of May 2000 ~ -.: -- -- oz'" , . .. . ) . .1 .... . '=. ._ , .' . I. n ""_- .~ DJ.D LeIghton, Vice Chair 6