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HomeMy WebLinkAbout1992-0469.Auger&Beaulieu.97-08-27 r .-. - -~- ~ - - - 'I ONTARKJ EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO ., ~ 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE BOD, TORONTO ON MSG 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU BOO, TORONTO (ON)M5G 1Z8 FACS/MILE/TELECOPIE (416) 326-1396 ,-, - GSB # 469/92 OPSEU # 92C476 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Auger-Beaulieu) Grievor - and - The Crown in Right of ontario (Ministry of the Attorney General) Employer BEFORE H S. Finley Vice-Chair W.J Shipman Member M. O'Toole Member FOR THE J Gilbert GRIEVOR Grievance Officer ontario Public Service Employees union FOR THE M Fleishman EMPLOYER Law Officer Crown Law Office civil Ministry of the Attorney General HEARING September 22, 1995 January 24, 1997 February 14, 1997 . -- . GSB 0469/92 SUPPLEMENTARY I -DECISION I -- In a decIsion dated October 15, 1993, the Board ordered reinstatement of the Grievor [Ms. Auger-Beaulieu] within 30 days of [the] decision for the balance of her contract and compensation with interest according to the "Hallowell House" formula for the time which she could reasonably have been assigned to work in the interim. It further ordered that the above amount was to be reduced by any monies that she earned during the time she was not employed by the Ministry of the Attorney General, and that it [was] the responsibility of the Grievor to report this compensation to any government agency which provided her with income during this time, in order that these agencies I [could] recover any monies which are due them. I On November 15, 1993, Counsel for the Employer wrote in response to a letter from Counsel for the Umon, addressing the dIfficulty it was having findmg a placement for the Grievor due to reorganizatIOn and the possibIlIty of a buymg-out arrangement for the remaining months of the Gnevor's contract. It was proposed that the blly-oUt be based on the average weekly number of hours worked by the grievor during her employment with the Ministry On December 21, 1993, the parties agreed that The Grievor shall be paid compensation at an average gross salary of$*** ** per week.... plus *% vacation and statutory holiday pay .less statutory deductions. - 1 . The Employer apphed for JudIcial reVIew of the decIsion respectmg the remedy, and the DIvIsional Court concluded, on June 6, 1994, that it should not interfere WIth the decIsion of the Board. In September 1994, the Union receIved a cheque for Ms. Auger-Beaulieu from the Employer with a covering letter from Mr Gregory GledhIll to Mr Jim Gilbert. It was stated that the amount "satisfies the GrIevance Settlement Board's order in the above noted GSB award" The amount was based on an average of 18 hours a week, and prior to Its receIpt, Mr GIlbert had indIcated to Mr GledhIll that the Union disagreed with the baSIS of the calculation and requested the documentatIOn on WhICh the average was established. Mr Gilbert and Mr GledhIll agreed that the cheque would be forwarded to Ms. Auger-BeaulIeu and that she would accept the money without prejudice to the grievor's and the union's position that more money may, in fact, be owing to the grievor At issue at this pomt, is the basis for the calculation of the number of hours which the Grievor "could reasonably have been assigned to work" from Apnl8, 1992, to November 14, 1993, mclusive. The partIes have mdlcated that they agree that the compensatIOn should be for a period of 83 weeks and 2 days. The Employer has calculated holiday and vacation pay at 8% of gross pay whIle the Union has calculated It at 8 16%, that is 4% "of gross pay, not including vacatIOn pay" for hohdays and 4% "of gross pay added to the employee's regular pay" Mr Gilbert explained that the vacation pay goes on top of the holiday pay which results m 8 16%. The Board does not beheve that there is any dIsagreement over the apphcatIon of statutory deductIOns and WhICh deductIons those are, nor that unIOn dues are to be deducted from the base salary The pOSItion of courtroom clerk is an Office AdmInIstration 8 position. The Collective Agreement shows the Office AdmimstratIon 8 positions at the first level, WIth an hourly rate of $1661 as of January 1, 1992 and $16 99 as of January 1, 1993 The Employer's compensation calculatIOn at 18 hours per week on average was based on the figures drawn from the court utilization records WhICh record the length of time that each court 2 -- sits each day There are four courtrooms m the ProvmcIal Court, CrImmal DivlSlon m Thunder Bay Ms. Auger-Beaulieu worked for the most part in Courtrooms # I and # 2 The Employer based Its calculatIOn on an average of the utilization of the four courtrooms over the period from April 1992, to November 1993 Not mcluded, was time prior to the opening of the courtroom In the mornIng, the time during recesses, or the period of time after the closing of the courtrooms when matters which the court generated during Its slttmg were dealt WIth administratively EVIdence demonstrated that Ms. Auger-Beaulieu carried out duties consistently during these periods. The Employer used as well, as comparators for average time, five other unclassIfied employees In the court staff, of whom three were office clerks, and two were courtroom clerks. The hourly rate used in these calculations was $16 61 with 8 % added for vacatIOn and statutory holIday pay The Employer stated that the time sheets on whIch earnmgs are based, were no longer available. TheIr whereabouts were unknown. I The Board rejects the Employer's basis of court utihzation time, since It falls to take into account the court preparation time from 0830 hours to 1000 hours, the time to deal with work generated by the sitting of the court, the office clerking time, and the fact that there was an increase in compensatIOn as of January 1, 1993 Further, It does not take into account the differences between the utllizatIOn of the four courtrooms and the fact that Ms. Auger-BeaulIeu most frequently worked in Courtrooms #1 and # 2. A comparIson of the courtroom utllizatlon figures for the four courtrooms from April 1991 to the end of March 1992 gIves the followmg pIcture Courtroom Number of months Total hours Monthly average in hours #1 12 1,6140 134 55 #2 12 922.7 7689 #3 12 5590 46.58 #4 12 1,054 6 8788 The total number of courtroom hours for all four courtrooms for that period was 4,150.3 and the monthly average of the four courtrooms was 86 48 3 ~"-_..- . A companson of the court utilIzatIOn figures for the four courtrooms from April 1992 to .- September 1993, inclusIve, gIves the followmg picture. i Courtroom Number of months Total hours Monthly average in hours #1 17* 2,172.2 12778 #2 17* 1,641 0 96.53 #3 16** 882.8 55 18 #4 16** 1,552.0 9700 - The total number of hours over the eighteen-month period for the four courtrooms was 6,248 hours and the monthly average of the four courtrooms was 9412. * Courtroom not utilized for court during August 1992, ** Courtroom not utilized for court during July and August 1992. The number of months the court was open have been used as a basis for averaging since Ms. Auger-Beaulieu's assignment depended on the court's sitting and therefore if the court were not sitting her services would not normally have been required, except, on occasion, to complete court-related duties or for office clerking duties. An analysIs of these comparisons demonstrates the following: . Courtroom # 1 IS the busiest C0urtroom. . Courtroom # 3 is the least busy courtroom. . The spread between the bUSIest and the least busy courtrooms In the monthly average was 87 57 hours In the twelve-month comparison and 72.6 hours In the eighteen-month comparison. . Courtroom # 1 was 48.07 homs above the monthly average of the four courtrooms in the twelve-month companS0n and 3366 hours above the monthly average of the four courtrooms In the eIghteen-month comparison. . Courtroom # 2 was 9 59 hours below the monthly average of the four courtrooms In the twelve-month comparis0n and 2.41 hours above the monthly average of the four courtrooms in the eighteen-month comparison. . Courtroom # 3 was 3990 homs below the monthly average of the four courtrooms in the twelve-month comparIson and 38 94 hours below the monthly average of the four courtrooms In the eighteen-month comparison. . Courtroom # 4 was 1 40 hours above the month.ly average of the four courtrooms In the twelve-month comparlS0n and 2.88 hours above the monthly average of the four courtrooms in the eIghteen-month comparIson. The dIscrepancIes above demonstrate, to the Board's satisfactIOn, that the courtroom utIlIzatIOn statIstlcs when the four courtrooms' utllizatIOn hours are averaged and when they are consIdered 4 . wIthout the addItion of the pre-court, recess, and post-court time worked by a court-room clerk, are not a sUitable basIS for determinmg the number of hours which Ms. Auger-Beauheu could have reasonably been expected to be assigned. There was no specIfic informatIOn provIded as to which courtrooms she was assigned to, although she testified that she was assigned to Courtroom # 1, and then mentioned that she rotated between Courtrooms #1 and #2.--She also testified that she would clerk in a courtroom during a tnal when servIces were being dehvered in French, and would from time to time accompany a Judge who was sitting in a circuit court, outsIde the Thunder Bay location. It IS the Union's position that Ms. Auger-Beaulieu's average work week over the 42 weeks prior to her dIsmIssal should be the basIS on wluch the compensation for the 83 week and 2 day period should be calculated. That average was 30.827 hours, accordmg to the Union. It further maintams that two hourly rates should apply f0r the period - m 1991 @ $16 61, and in 1993 @ $1691 (sic). It does not take mto account anytime assigned to office clerking wluch was paid at $15.60 per hour and maintams that the Board should not take the difference mto account. There was no evidence that any courtrooms were closed or theIr use changed. There was no indIcation that Ms. Auger-Beaulieu's asSIgnment or that of Ms. Quessy, the other bilingual, unclassIfied courtroom clerk, would have changed during the penod under consideration had Ms. Auger-Beaulieu continued to be employed. Nor was there any evidence that the Employer had taken any steps to curtaIl overtime. The courtroom clerk'~ departure time depends on the judge's decision WIth respect to how long he or she chooses to sit and the immediate workload generated by the sIttmg of the Court. Ms. Deborah Novak was given the fourth court clerk pOSItIOn following Ms. Auger-Beaulieu's dIsmissal. The Employer submItted that she should be the comparator However, she was hIred Imtially as a court office clerk at the OAG 6 rate and then tramed to work in the position of courtroom clerk. There was no eVIdence that she was paid at the OAG 8 rate when she functIOned as a courtroom clerk. Further, she was not bIlmgual and therefore could not assume the responsibility for clerking when court room services were being dehvered m French. Therefore, Ms. Novak does not prOVIde a suitable comparIson m this case. S " . ~ Usmg the time of Ms. Quessy following Ms. Auger-Beaulieu's dIsmissal, provIdes a shorter penod for averagmg and reflects a situation in which she was the only bIlmgual courtroom clerk. The Board does not consider that the companson with Ms. Quessy offers the closest comparison i that is possible on whIch to base the average number of hours per week which Ms. Auger- ~ BeaulIeu mIght reasonably have been assigned to work during the period m question. -- The Board has concluded, given the evidence available, that the basis for determining the compensation for Ms. Auger-Beaulieu dunng the period from April 8, 1992 to November 14, 1993 mclusIVe, whIch comes closest to reflecting the time which she could have reasonably been assigned to work, is the average number of hours she worked during the weeks that she worked from the first day of her first full week of work to the end of the last full week she worked pnor to her dIsmissal, that IS, from July 20, 1991 to April 2, 1992. Dunng the penod under consideration, the Mimstry of the Attorney General mstituted a new pay procedure for unclassified court room clerks (OAG 8) who functIOned, when avaIlable and required, as office clerks. The Ministry accomplished this adjustment by requiring the courtroom clerks who were on contract and who wished to continue to have the office clerk work assigned, to SIgn a second contract at the OAG 6 rate of $15 60 per hour The amoWlt of time worked m each pOSItion and the appropnate remWleratIOn were reflected in theIr payroll mformatIOn. The procedure was mstItuted followmg the dismissal of Ms. Auger-BeaulIeu and she, therefore, did not sign a second contract. It was clear from the evidence however, that had she been employed at the time that she would have done so The payroll informatIOn respectmg Ms. Novak only shows her bemg paid at the OAG 6 level ($15 60 and later, $1597), that of Ms. Quessy shows a penod of 11 weeks from June 15, 1992 to August 31, 1992 during whIch she was paId at the two levels of $16 61 and $15 60 From September 1, 1992 to the time at whIch she left to go mto a permanent position elsewhere, a period of twelve weeks, her payroll mformatIOn shows that she was paid only at the OAG 8 level ($16 61). This mformatIOn of Ms. Quessy is the best comparIson the Board has WIth respect to the dual contract arrangement. The Union submItted that the Board should ignore the OAG 6 contracts. The Board has determmed, 6 - .~ ~ ~ however, that it should take the OAG 6 hours of work into account in relatIOn to ~s. Auger.: Beaulieu for the eleven-week penod based on the same proportion of hours as those worked by Ms, Quessy, that is, durmg the penod from June 15, 1992 to August 31, 1992, 74% of her work time was spent at the GAG 8 'rate of$!6.61 and 26% of the time was spent at the OAG 6 rate of$15 6Q , In summary then, the time for which Ms. Auger-Beaulieu is to be compensated (from Apnl 8, 1992 to November 14, 1993) is to be based on the weekly average of the number of hours worked from the first day of her first full week of work to the last day of the last full week she worked pnor to her dIsmIssal, that is, from July 20, 1991 to April 2, 1992. The rate of compensation is to be in accordance with the hourly rates set out for the OAG 8 and OAG 6 levels m the Collective Agreement dated January 1, 1992 to December 31, 1993 The compensation is to be structured as follows. April 8, 1992 to June 14, 1992 100% @ '$16 61 June 15, 1992 to August 31, 1992 74% @ $ 1-661 26% @ $ 15 60 September 1, 1992 to December 31, 1992 100% @ $ 1661 January 1, 1993 to November 1993 100% @ $ 16.99 The actual number of weeks and days isto be , as agreed by the partIes, 83 weeks and 2 days. The normal statutory deductIons are to apply, as IS the deduction of unIOn dues from the base salary The holIday pay (4% of gross pay not mcludmg vacation pay) and the vacatIOn pay (4% of gross pay) are to be accordmg to the CollectIve Agreement which applies for that penod (January 1, 1992 to December 31, 1993). Interest is to be accordmg to the "Hallowell House" formula. As m the mam deCIsion, the compensation IS to be reduced by any monies that [Ms. Auger-Beaulieu] earned during the time she was not employed by the Ministry of the Attorney General, and it is the responsibility of the Grievor to report this compensation to any government 7 .. " ,,- ~ ~ I ~, agency which provided her with income during this time, in order that these agencies can recover any monies which are due them. The Board orders that the remammg amount, based on the above, be paid to Ms. Auger-BeaulIeu ; on or before September 30, 1997 Should the partIes have further dIfficulty implementmg the award, the Board wIll endeavour to deal wIth tb.e matter prior to September 30, 1997 and render a d~cISIon pnor to October 15, 1997 \ D;1ted at Kmgston \ this 27th Day of August, 1997. ?l17- {)/~, M. O'Toole, Member ~--~, W.J Shipman, Member 8 -,.--.-