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HomeMy WebLinkAbout2018-0659.Cochrane.18-06-11 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2018-0659 UNION# 2018-0411-0004 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Cochrane) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Ian Anderson Arbitrator FOR THE UNION Gregg Gray Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Laura McCready Treasury Board Secretariat Centre for Employee Relations Employee Relations Advisor HEARING June 4 and 5, 2018 - 2 - Decision [1] The Employer and the Union agreed to participate in the Expedited Mediation- Arbitration process in accordance with the negotiated protocol. The majority of the grievances are normally settled pursuant to that process. However, if a grievance remains unresolved the protocol provides that the Arbitrator of the Board, based on the evidence provided during the mediation session, will immediately decide the grievance. The decision will be without reasons, without precedent and prejudice and will be issued within fifteen working days of the mediation unless the parties agree otherwise. [2] On June 4 and 5, 2018 the parties at the Ottawa-Carleton Detention Centre agreed to participate in the Expedited Mediation-Arbitration process in accordance with the negotiated protocol. [3] As will become apparent, the facts underlying this grievance are complex. It is also legally complex. In order to work through the complexities of the case, I wrote reasons for the conclusion which I have reached. Having regard to the protocol, I have omitted those reasons from this decision. If both parties request them, they will be provided. [4] The Grievor is a Correctional Officer. Correctional Officers work an average of 40 hours per week. Their regular biweekly pay is for 80 hours. On January 11, 2018, the Grievor was paid for less than 80 hours. Her net pay was approximately $1,000 less than it would normally have been. This resulted in insufficient funds in her account to meet certain regularly scheduled withdrawals. While the difference in pay was ultimately made up on her following pay cheque (as discussed below), the Grievor seeks compensation for the bank charges she incurred and damages for other economic losses and the aggravation she experienced. [5] The Employer states the pay received by the Grievor on January 11, 2018 was reduced because she had taken leave on December 29, 30 and 31, 2017. At the - 3 - time the Grievor requested paid leave for those dates, she had no credits in her bank which would have permitted her to be paid. Accordingly, December 29, 30 and 31, 2017 were treated as unpaid leave and the Grievor’s pay for the period in which they fell was reduced accordingly. [6] The Union states the Grievor earned credits in relation to the statutory holidays on December 25 and 26, 2017. Those credits should have been applied to December 29, 30 and 31, 2017. [7] The Employer agrees credits were earned for December 25 and 26, 2017. However, it states before the credits can be applied they must be entered into WIN (the Employer’s payroll management system). In Corrections, entries into an employee’s WIN account are not done by the employee but are processed by the payroll department. It ordinarily takes at least three days for the payroll department to process credits but can take up to two weeks. Because of this, the Employer states, employees know credits may not be available for use until the following pay period. Further, in this particular case, employees were told WIN would be down from December 31, 2017 to January 9, 2018. The payroll clerk advised the Grievor by email on December 13, 2017 that as of December 10, 2017 she had “no credits available for use for the rest of 2017” and that “If absences exceed this amount I will unfortunately have to process deductions.” Therefore, the Grievor knew or ought to have known that she did not have credits to cover her absences on December 29, 30 and 31, 2017 and that the December 25 and 26, 2017 credits would not be available to be used for that purpose. [8] The Union denies knowledge of any practice, policy or procedure to the effect that credits are not available for use until the following pay period. Further, it notes that in the event an employee is scheduled to work on a statutory holiday but for some reason does not work it, they are permitted to use the credit earned for that statutory holiday to cover their pay for that day although not worked (“stat on stat”). - 4 - [9] The Grievor also had credit which had been misapplied in relation to November 1, 2017. On that day the Grievor had been scheduled to work a 12 hour shift. She did not work the shift and 12 hours of credit which the Grievor had were applied by the Employer to cover the shift with the result that she received full pay for the pay period in question. In fact, the Grievor attended 8 hours of training on November 1, 2017. She was entitled to have those 8 hours treated as working hours. [10] After the Grievor received the January 11, 2018 pay cheque for less than 80 hours pay, she met with the payroll clerk. Their discussion resulted in a payment to her in the next pay period to reflect use of the December 25 and 26, 2017 credits and also the 8 hours of credit she obtained as a result of the recoding of November 1, 2017 as 8 hours of training time. Because this resulted in the Grievor receiving earnings over and above her normal pay for the pay period, the additional earnings were taxed at her marginal tax rate, i.e. at a level of tax higher than her average tax rate. (Of course, when the Grievor files her taxes the amount of tax which she is owed will be the same and any additional amount deducted at source will be credited to her.) [11] The grievance is allowed in part. I direct the Employer to compensate the Grievor for the NSF charges she incurred, up to a maximum of $181. The Employer is entitled to request the Grievor to provide documentary proof from her bank. Such a request must be made within two weeks of this decision. If the Employer makes such a request, the Grievor shall provide such documentary proof within a further two weeks or forfeit her claim for those charges in whole or in part. The Employer shall pay the Grievor for NSF charges supported by such documentary proof within two weeks of its receipt or, if documentary proof was not requested, within two weeks of the date of this award. Dated at Toronto, Ontario this 11th day of June 2018. “Ian Anderson” Ian Anderson, Arbitrator