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HomeMy WebLinkAboutP-1999-0019.McFadden.00-01-20 ~. _- --~--~--1ioi--.~- .. r..--- ~....~ ,- PSGB # P/OO19/99 IN THE MATTER OF AN ARBITRATION Under THE PUBLIC SERVICE ACT Before THE PUBLIC SERVICE GRIEVANCE BOARD BETWEEN McFadden Grievor - and - The Crown III RIght of Ontano (Mimsm of the SolIcItor General and CorrectIOnal ServIces) Employer BEFORE John A. Willes Vice ChaIr FOR THE Tim McFadden GRIEVOR FOR THE Laura WillIams EMPLOYER Staff RelatIOns Officer Mimsm of the SOlICItor General and Correctional ServIces HEARING December 16 1999 DECISION The gnevance III thIS matter relates to a demand for payment of stand-by compensation by the Gnevor Tim McFadden, a former Co-ordinator of the East Middlesex Detention Centre Institutional CnsIs Intervention Team. The Gnevor's demand for payment was reJected by the Employer and on May 20 1999 the Gnevor filed a gnevance With the Pubhc ServIce Gnevance Board that reads as follows "May 20 1999 Met WIth Dept. Supt. Murray LaIrd III South Hall Board Room, Andy Shepherd present. Informed Mr LaIrd that I am requesting compensation for weanng a pager from the tIme frame of No v 1 97 until Sept. 22, 98 Even though my employer Mr Lockhart had Informed me that I would not be compensated for weanng the pager I feel that I should be Mr LaIrd asked when I became aware of thIs complaInt I Illformed rum that after my removal from the ICIT Program 23 Apr I had time to reflect and that IS why I am makIllg thIs complaInt. Compensation requested 5384 hours tImes 50% of hourly rate equals 6799992 " When the partIes could not resolve theIr dIfferences, a heanng was scheduled by the Pubhc ServIce Gnevance Board for December 16 1999 At the outset of the heanng, Counsel for the Employer raIsed a prehmIllary obJectIon concernIng the tImehness of the fihng of the gnevance 2 AccordIllg to the facts of the case, WhICh are for the most part not III dispute, the Gnevor became a member of the Institutional CnsIs Intervention Team III 1981 and III 1985 was promoted to the rank of Operational Manager The same year he was desIgnated as an ICIT Co-ordInator In 1997 the Gnevor approached ills Employer and dIscussed the Idea of USIng a pager III order that he mIght be promptly notified of any disturbances III the IllstItutIon. The Gnevor's Employer agreed WIth the suggestIOn, but advIsed the Gnevor that he would not be entitled to any extra compensation for weanng the Illstrument. The Gnevor apparently dId not question the matter of no compensation, and camed the pager until September 22, 1998 The Gnevor was removed from the program on April 23 1999 and a few weeks later filed hIS gnevance, claImIllg compensatIon for the penod of time he camed the pager Counsel for the Employer submItted that the pager was not a part of the Gnevor's Job descnptIon, and others In sImIlar posItions did not cany a pager Counsel stated that the Gnevor was made aware that no compensation would be given for weanng the pager as ills on-call or standby status dId not change because he possessed a pager Counsel for the Employer argued that a pager was made aVaIlable at the Gnevor's request, and If he dId not agree With ills supervIsor's statement that he would not receIve any extra compensatIon for weanng the pager he was obhged to file ills gnevance at that time, and not some 18 months later Counsel for the Employer submItted that the gnevance was untimely as It was filed beyond the 14-day time hmIt for fihng gnevances under Regulation 977 of the Pubhc ServIce Act. In support of her argument, Counsel for the Employer cIted. P S G.B P /0014/95 J Lay 3 and The Crown In Right Of Ontario (MinistlY of the Solicitor General & Correctional Services) The Gnevor stated that he dId not file ills gnevance at an earher tIme as he expected that the Employer would eventually offer compensation III return for weanng the pager He conceded that weanng the pager was not a Job reqUIrement, but 'bemg readily available' was a part of ills Job reqUIrement. His posItion was that the Employer provIded the pager and should be obhged to compensate illm for weanng It. xxxxxxxxxxxxxxx Tills Board has carefully revIewed the submIssIons and arguments of the partIes With respect to the reasons for the lengthy delay III fihng. The time hmIts specIfied III Regulation 977 for the fihng of gnevances IS 14 days, subJect to the discretion of the Board to extend time hmIts where the CIrcumstances and the Illterests of natural Justice warrant an extenSIOn. The Gnevor m thIS case was made aware that the Employer was not prepared to offer illm extra compensation for weanng the pager when the pager was supphed m November of 1997 Ifhe was unhappy WIth the Employer's decIsIon at that time, he was free to file a gnevance. From the Gnevor's own submIssIons, the Employer did nothIng to suggest that compensation mIght be forthcomIllg III the future Counsel for the Employer stated that at no time did the Employer Illdicate that any payment would be made, and was consIstent III ItS posItIon m November 1997 and later III 1999 when the Gnevor raIsed the Issue 4 From the submIssIons and arguments of the partIes, thIs Board has no eVIdence before It of extenuating CIrcumstances that would JustifY an extenSIOn of the time hmIts for the fihng of the gnevance, and thIs Board must accordingly dechne to exerCIse ItS discretion to extend the time for fihng. The grievance IS therefore dismIssed as untimely DATED AT TORONTO THIS 20th DAY OF JANUARY 2000 ~ ...... John A. Willes, Q C Panel ChaIrman. 5