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HomeMy WebLinkAbout2001-0476.Brochu.02-01-14 Decision ~M~ om~o EA1PLOYES DE LA COURONNE _Wi iii~~~i~T DE L 'ONTARIO COMMISSION DE REGLEMENT "IIIl__1I'" BOARD DES GRIEFS Ontario 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE. (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILE/TELECOPIE. (416) 326-1396 GSB#0476/01 UNION#01 B195 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Brochu) Grievor -and- The Crown In Right of Ontario (Ontario Clean Water Agency) Employer BEFORE Randl H Abramksy Vice-Chair FOR THE GRIEVOR Don Martin Grievance Officer Ontario Public Service Employees Union FOR THE EMPLOYER Len Hatzls Counsel Legal Services Branch Management Board Secretariat HEARING January 9, 2002 AWARD ThIS gnevance Involves whether or not the Employer properly deducted 11 18 vacatIOn credIts from the gnevor Claude Brochu, pursuant to ArtIcle 46 5 of the collectIve agreement. ArtIcle 465 provIdes An employee may accumulate vacatIOn to a maXImum of tWIce hIS or her annual accrual but shall be reqUIred to reduce hIS or her accumulatIOn to a maXImum of one (1) year's accrual by December 3 1 of each year Facts The gnevor IS a Waste and Water Operator 1 at the Hurst, Ontano plant, and has worked for the Employer SInce March 1987 The Hurst plant IS a small facIlIty and has only two Waste and Water operators, plus AssIstant Manger Andre Doucet. Pursuant to ArtIcle 46 1 an employee wIth the gnevor's length of servIce earns 20 vacatIOn credIts per year He had carned forward 19 vacatIOn days from 1999 and 20 more were added In January 2000 so that as of January 31 2000 he had 39 vacatIOn credIts On February 21 2000 a memo went to all employees In the Northeastern Ontano Hub requestIng each employee to speCIfy theIr vacatIOn week preferences by March 31 2000 The purpose of thIS was "to schedule work and maIntaIn the necessary manpower to ensure relIabIlIty and safety at our facIlItIes, and so that you take your vacatIOn when you want It " The gnevor dId not submIt a vacatIOn request. 2 As of May 31 2000 the gnevor had 37 vacatIOn days remaInIng. AssIstant Manager Doucet testIfied that because the gnevor had not submItted hIS vacatIOn requests and normally took vacatIOn tIme over the summer he spoke to the gnevor to remInd hIm that he had excess vacatIOn to use and had not yet used them The gnevor dId not recall thIS conversatIOn. Mr Doucet testIfied that he agaIn spoke to the gnevor about USIng hIS excess vacatIOn tIme In September or October He stated that he told the gnevor that the year was comIng to an end and that he needed to reduce hIS vacatIOn tIme because under the collectIve agreement, he would lose any days In excess of one year's accrual unless management approved It beIng carned forward. The gnevor recalls a sImIlar conversatIOn In October 2000 and stated that Mr Doucet requested that he submIt a plan to reduce hIS excess vacatIOn. The gnevor testIfied that he dId not submIt such a plan and that no further mentIOn of It was made AccordIngly at the end of December 2000 the gnevor stIll had 31 18 vacatIOn credIts remaInIng. In January 2001 Mr Doucet gave the gnevor a form to complete to request that hIS excess vacatIOn tIme (11 18 days) be carned forward. The form was prepared by the AdmInIstratIve AssIstant Karen KlInke It was sIgned by the gnevor and returned to Mr Doucet. It states as follows January 12,2001 TO Tony Janssen OperatIOns Manager 3 Northeastern Ontano Hub RE ExceSSIve VacatIOn Carryover I am hereby requestIng to carry over 11 18 days of the year 2000 vacatIOn credIts to the year 2001 SIncerely Isl Claude Brochu Claude Brochu Cc Andre Doucet AssIstant Manager I hereby approve the above noted request Tony Janssen OperatIOns Manager Northeastern Ontano Hub AccordIng to Mr Doucet he dIscussed the request later that day wIth Tony Janssen, OperatIOns Manager Northeastern Ontano Hub and It was decIded that before the request could be approved, the gnevor would have to wnte a letter explaInIng why he had been unable to take hIS vacatIOn tIme In 2000 and submIt a plan to show how the tIme would be reduced by the end of2001 Mr Doucet wrote down these two reqUIrements on yellow stIcky notes and attached them to the January 12, 2001 request. Because he was not gOIng to be at the plant the next mormng, he then left the request, wIth the stIcky notes attached, near the Log Book In the lunch room where employees sIgn In and out each day The gnevor testIfied, however that he never saw It. 4 Mr Doucet testIfied that he had a conversatIOn wIth the gnevor on January 13 2001 about the two reqUIrements for approval, and that he told hIm that to approve the request for carryover he would need a letter explaInIng why the vacatIOn had not been taken In 2000 and a plan to reduce It by the end of the year The gnevor recalls Mr Doucet mentIOmng the reqUIrement for a plan to reduce the vacatIOn tIme but does not recall beIng asked for a letter explaInIng why he had not taken the vacatIOn tIme In 2000 To the extent that Mr Doucet's and Mr Brochu's recollectIOn of theIr conversatIOns dIffer I credIt the recollectIOn of Mr Doucet. His recollectIOn was far clearer and more specIfic than the recollectIOn of the gnevor The gnevor testIfied that on January 12, 2001 he submItted hIS "plan" to reduce the exceSSIve vacatIOn carryover AccordIng to Mr Doucet, thIS "plan" was provIded on January 13 2001 The memo dated January 12,2001 states as follows January 12,2001 To Andre Doucet AssIstant Manager RE ExceSSIve VacatIOn Carryover To mImmIze the carryover I would lIke to take off the week of January 22-27 and February 5-10 2001 ThIS IS the best I can do In such a short notIce SIncerely Claude Brochu 5 The gnevor testIfied that Mr Doucet demed thIS vacatIOn request, statIng that the first week requested he had quarterly reports to Issue and that he was scheduled to take holIdays the week afterward, but that he could "take them at a later date" Mr Doucet testIfied that when he saw the vacatIOn request he told the gnevor that thIS was not what management requested. He told the gnevor that It dId not show how the excess vacatIOn tIme would be reduced by the end of the year and there was no letter regardIng why the vacatIOn tIme had not been used In 2000 He said that he would take It to Janssen, but told the gnevor that he was sure It would not be approved because It was not a full plan. He confirmed that he also told the gnevor that the two week vacatIOn he requested was not approved He demed that he told the gnevor that he could take the excess vacatIOn tIme later on. Instead, he told hIm he could take these two weeks - from the 40 days avaIlable to hIm - at a later tIme Mr Doucet dId talk to Mr Janssen agaIn about the gnevor's request to carryover the excess vacatIOn days, but the request was not approved because there was no explanatIOn as to why the vacatIOn tIme had not be used In 2000 and no plan for reducIng the vacatIOn. It does not appear that thIS decIsIOn was conveyed to the gnevor The gnevor testIfied that ImmedIately after hIS vacatIOn request was demed he off for three weeks on sIck leave He returned In February and the subject of the excess vacatIOn carryover was not dIscussed. On Apnl 2, 2001 he sent an e-maIl to AdmInIstratIve AssIstant Karen KlInke, askIng "What ever happened to my 11.25 days 6 of vacatIOn days DId I lose them or were they carned over')" He receIved no response and so e-maIled her agaIn on Apnl 19 2001 after reCeIVIng hIS quarterly report whIch showed that the 11 18 excess vacatIOn days had been deleted. She responded that no request for a carryover was ever receIved. In fact, however as the testImony of Mr Doucet IndIcates, the request was submItted but demed The eVIdence showed that another employee In the Northeastern RegIOn Hub had requested a carryover of 6 vacatIOn days, and thIS request was approved. AccordIng to Mr Doucet It was approved because the applIcant had reduced hIS vacatIOn tIme substantIally yet had been unable to reduce It all because of operatIOnal needs Arguments of the Parties For the Union The Umon contends that the Employer pursuant to ArtIcle 46 5 cannot Just elImInate an employee's excess vacatIOn days It submIts that the oblIgatIOn, under ArtIcle 46 5 IS on the Employer to reqUIre the employee to reduce (i e take hIS vacatIOn tIme) not on the employee It contends that employees have no control over vacatIOn approval SInce that IS a matter deCIded by the Employer AccordIngly It submIts that the oblIgatIOn cannot be on an employee to take hIS vacatIOn tIme but must be read to be on the employer to reqUIre the employee to take hIS or her vacatIOn. AlternatIvely If that would create operatIOnal dIfficultIes, the Employer would have the optIOn of paYIng the employee for that tIme What IS prohIbIted, accordIng to counsel for the Umon, IS for the Employer to umlaterally delete the credIts whIch IS what occurred here 7 The Umon acknowledges that the Employment Standards Act (ESA), SO 2000 c 41 as am SO 2001 c 9 Sched. I, s 1 vacatIOn provIsIOns do not apply to Crown employees, but submIts that the Act should serve as an InterpretatIve gUIde It notes that under the ESA, an employee must eIther take hIS vacatIOn tIme or must be paid for It. SectIOn 41 of the Act states as follows 41.(1) Approval to forego vacation - If the DIrector approves and an employee's employer agrees, an employee may be allowed to forego takIng vacatIOn to whIch he or she IS entItled under thIS part. (2) Vacation pay - NothIng In subsectIOn (1) allows the employer to forego paYIng vacatIOn pay The Umon contends that the same IS true under ArtIcle 465 - that an employee must eIther be reqUIred to take hIS vacatIOn tIme or must be paid for It. He cannot sImply forego It wIthout pay The Umon submIts that there IS no reqUIrement to "use It or lose It" In the collectIve agreement and that such an InterpretatIOn IS InCOnsIstent WIth the ESA. The Umon acknowledges that thIS Issue was decIded In OPSEU (Upshaw) and Ministry of Health GSB No 2163/97 (Abramsky) but argues that It was wrongly decIded SInce It IS only the Employer who can reqUIre employees to take vacatIOn tIme To rule otherwIse It suggests, opens up the possIbIlIty that the Employer wIll not approve vacatIOn requests, and then rely on the operatIOn of ArtIcle 465 to delete the excess vacatIOn tIme and the employees are left wIth no vacatIOn and no pay 8 The Umon submIts that under ArtIcle 465 there can be no carryover of excess vacatIOn days, and that It IS not up to the employer to approve carryover Instead, the Employer must reqUIre the employee to take hIS or her excess vacatIOn dunng the calendar year or pay for the days Involved. In the alternatIve, the Umon contends that the gnevor dId put forward a "plan" to reduce the excess vacatIOn tIme, and when Mr Doucet told hIm that he could take It later In the year he reasonably belIeved that he was refernng to the excess vacatIOn tIme, not hIS regular vacatIOn days It also notes that the Employer never responded to the gnevor's request to carryover the 11 18 days, and hIS first notIficatIOn that hIS request was demed was through the quarterly report. Consequently the Umon contends that even If the Employer can depnve employees of vacatIOn credIts under 46 5 1 twas Inappropnate here SInce they were In effect, "snatched away" wIthout explanatIOn. For the Employer The Employer first contends that the ESA does not apply to Crown employees and has no beanng on the InterpretatIOn of ArtIcle 46 5 It submIts that thIS case Involves whether or not the gnevor's 11 18 excess vacatIOn credIts were properly deducted under ArtIcle 46 5 and contends that they were It submIts that ArtIcle 46 5 makes no provIsIOn for a carryover of the excess days, that the decIsIOn to allow a carryover lIes In the dIscretIOn of management, and that there was no breach of ArtIcle 46 5 In thIS case 9 The Employer contends that ArtIcle 46 5 places the oblIgatIOn on the employee not the employer to reduce hIS or her vacatIOn credIts to a maXImum of one year's vacatIOn entItlement by the end of the year It submIts that the gnevor receIved quarterly reports specIfYIng the number of hIS vacatIOn credIts, and that he was specIfically warned by Mr Doucet In June and agaIn In September or October eIther to use the excess vacatIOn tIme or he would lose It. Yet he dId nothIng - he submItted no plan to reduce hIS vacatIOn tIme and took no vacatIOn tIme The Employer submIts that there was no eVIdence that the gnevor had been unable to take hIS vacatIOn tIme In 2000 but chose not to do so knowIng that he would lose the tIme unless management approved hIS request to carry It over The Employer further contends that the gnevor's request for carryover was properly demed. It submIts that he was told to provIde reasons for why he had been unable to use hIS vacatIOn In 2000 and a plan to reduce It. Instead, the gnevor submItted a request for two weeks vacatIOn. In management's VIew that was not a sufficIent plan and there was no explanatIOn provIded as to why he was unable to use hIS vacatIOn tIme The decIsIOn regardIng requests to carry over lIes wIth management and It asserts that the decIsIOn was, under these specIfic facts, properly made The Employer notes that there IS no allegatIOn and no proof of bad faith In the demal of the gnevor's request. FInally the Employer asserts that management never represented to the gnevor that hIS request to carryover the excess vacatIOn would be approved, nor dId the gnevor 10 rely on any such representatIOn It also submIts that estoppel cannot apply to a matter wIthIn management's dIscretIOn, CItIng OPSEU (Coubrough Sinisalo) and Ministry of Health, GSB No 3018/90 (Gorsky) and OPSEU (Brummell) and Ministry of Health GSB No 584/91 (KIrkwood) and OPSEU(Nunn) and Ministry of Correctional Services GSB No 141/93 (Kaufman) Decision I conclude after carefully consIdenng the eVIdence and arguments of the partIes, that the Employer dId not vIOlate ArtIcle 46 5 when It deducted the gnevor's excess vacatIOn credIts In OPSEU (Upshaw) and Ministry of Health, supra, at Issue was whether the Employer had properly deducted, under ArtIcle 46 5 the gnevor's vacatIOn credIts In excess of one year's entItlement for each of the eleven years year that the gnevor had served first as FIrst Vice PresIdent and then PresIdent of OPSEU Although the case Involved the umon leave provIsIOns In the collectIve agreement, It also Involved ArtIcle 465 In that decIsIOn, at p 23 I ruled The purpose of ArtIcle 46 5 IS to prevent large accumulatIOns of vacatIOn tIme It ensures that employees use theIr vacatIOn tIme, not accumulate It then take It causIng operatIOnal dIfficultIes for the Employer Employees, under ArtIcle 465 must use theIr vacatIOn by December 31 or lose It. I further concluded, In dicta, as follows at p 25 Further It must be emphasIzed that, In general, there IS nothIng wrong wIth the Employer's deductIOn of vacatIOn credIts of employees who do not reduce theIr total accumulatIOn by year end. The employee has some control over the sItuatIOn - they can plan and use theIr avaIlable credIts throughout the year and they are on notIce that If they do not use them, 11 they wIll be deducted. Consequently If they do not reduce the credIts, the employer can properly deduct the excess The problem for Mr Upshaw was that whIle he was on umon leave he was not able to use hIS vacatIOn credIts I ruled, however that Included In hIS yearly salary was hIS vacatIOn tIme, and that the employer properly deducted hIS vacatIOn credIts to reflect that payment. I concluded at pp 23-24 "An employee IS paid for 48 weeks of work and four weeks of vacatIOn, or 47 weeks of work and five weeks of vacatIOn. He IS not paid for 52 weeks of work plus four or five weeks of vacatIOn. Consequently SInce the gnevor was paid for hIS vacatIOn credIts, the Employer properly deducted hIS vacatIOn credIts to reflect that payment." I find thIS case applIcable to the Instant matter From the plaIn language of ArtIcle 46 5 the oblIgatIOn IS on the employee to reduce hIS or her accumulated vacatIOn to a maXImum of one (1) year's accrual by December 31 of each year Although It IS true, as the Umon asserts, that It IS the employer who controls the schedulIng of vacatIOn, the employer cannot exerCIse that control In an unreasonable manner so as to depnve employees of theIr nght (and oblIgatIOn) to use theIr excess vacatIOn tIme If the employer dId so a gnevance could be filed. Under the Umon's InterpretatIOn, the Employer would be reqUIred to compel employees to take theIr excess vacatIOn tIme by year end. In both large and small operatIOns, thIS could cause substantIal operatIOnal dIfficultIes The other alternatIve suggested by the Umon - payment for the tIme - flIes In the face of the conclUSIOn In 12 Upshffit, that an employee's annual salary Includes hIS or her vacatIOn tIme In thIS case, If the employer were reqUIred to pay the gnevor for the excess 11 18 vacatIOn days, he would receIve hIS full annual salary plus an addItIOnal 11 18 days pay In terms of the ESA, I conclude that ItS vacatIOn provIsIOns are not applIcable to Crown employees A number of other provIsIOns of the ESA apply to Crown employees, but not the vacatIOn provIsIOns I also conclude that there IS nothIng In the ESA whIch precludes or prohibIts thIS Employer from deductIng an employee's excess vacatIOn under ArtIcle 46 5 of the collectIve agreement. In addItIOn, I note that SectIOn 41 of the ESA, specIfically proVIdes that whIle an employee may forego takIng hIS or her vacatIOn, the employer IS not allowed to forego paYIng vacatIOn pay The reqUIrement to pay for the unused vacatIOn tIme IS explIcIt. In contrast, the only explIcIt reqUIrement to pay for unused vacatIOn tIme IS found In ArtIcle 46 11 when an employee leaves the publIc servIce or qualIfies for L TIP There IS no sImIlar payment reqUIrement In ArtIcle 46 5 In regard to unused vacatIOn In excess of the maXImum of one year's accrual Further the purpose of ArtIcle 46 5 IS to reqUIre employees to take theIr vacatIOn tIme up to the maXImum they may accrue It, not forego It. ImplIcIt In ArtIcle 46 5 IS that unless an employee reduces hIS or her accumulated vacatIOn to the maXImum of one year's accrual by December 31 they wIll lose It. I also conclude, based on the eVIdence, that no representatIOn was made by Mr Doucet that the gnevor could use hIS excess vacatIOn tIme from 2000 later In 2001 It IS 13 understandable why the gnevor thought Mr Doucet was refernng to the excess vacatIOn tIme sInce hIS January 12, 2001 request for two weeks off specIfically referred to redUCIng hIS "excess vacatIOn carryover" the eVIdence shows that Mr Doucet was refernng to hIS general vacatIOn entItlement (and the 20 days the gnevor could properly carry over) for 2001 Further the eVIdence IS clear that the gnevor dId not rely on any such representatIOn by Mr Doucet. If he had, he would not have been sendIng e-maIls to Karen KInke In Apnl askIng whether hIS request for carryover had been approved or not. FInally I conclude on the facts of thIS case that the employer's deCISIOn not to approve the gnevor's request to carry over hIS excess vacatIOn days was reasonable The eVIdence showed that the gnevor was specIfically advIsed that he had to use hIS excess vacatIOn tIme In 2000 or nsk lOSIng It. He was specIfically told In October that he had to reduce hIS excess tIme and submIt a plan to that effect. He dId not do so When he requested the carryover he was told that he would have to submIt a plan to reduce hIS vacatIOn tIme (whIch, If he had been granted the 11 18 day carryover would have amounted to 51 18 vacatIOn days, 31 18 of whIch he would have had to use by December 31) as well as an explanatIOn as to why he was unable to use hIS vacatIOn tIme In 2000 The plan he dId proVIde was deemed Inadequate and no explanatIOn was proVIded. Under these specIfic cIrcumstances, management's deCISIOn to deny the request appears to be reasonable The sItuatIOn In whIch management approved vacatIOn carryover for another employee IS dIstIngUIshable In that case the employee had substantIally reduced hIS 14 excess vacatIOn tIme dunng the year but could not take the last SIX days due to operatIonal reqUIrements With Mr Brochu, there was no reason provIded as to why hIS excess vacatIOn credIts were not taken In 2000 AccordIngly based on the speCIfic facts of thIS case I conclude that there was no vIOlatIOn of the collectIve agreement and the gnevance must be dIsmIssed. Dated at Toronto thIS 14th day of January 2002 H ' ~hruf{f1 RandI Hammer Abramsky Vice-Chair 15