HomeMy WebLinkAbout2017-3192.Lim.18-07-12 DecisionCrown 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# 2017-3192
UNION# 2017-0599-0017
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Lim) Union
- and -
The Crown in Right of Ontario
(Ministry of Finance) Employer
BEFORE
Barry B. Fisher
Arbitrator
FOR THE UNION
Seung Chi
Ontario Public Service Employees Union
Grievance Officer
FOR THE EMPLOYER Justin O’Gorman
Treasury Board Secretariat
Centre for Employee Relations
Employee Relations Advisor
HEARING July 4, 2018
-2-
DECISION
[1] This is a case under Article 22.16 of the Collective Agreement.
[2] The Grievor is an EHT Tax Auditor and has been such since 1993.
[3] There are two aspects to the grievance.
1) Vacation Pay Issue:
[4] This matter has been resolved during the mediation stage as I assessed the
damages at $50, which the Employer agreed to pay.
2) Harassment and Bad Faith Allegation:
[5] This matter could not be resolved at mediation, so the matter was arbitrated. The
only witness was the Grievor.
[6] The relevant provision of the Collective Agreement is Article 3.3, which reads as
follows:
1. The Parties are committed to a workplace free from workplace
harassment, including bullying, by other employees, supervisors,
managers, any other person working or providing services to the
Employer in the workplace, clients or the public, in accordance with
the law. Workplace harassment is engaging in a course of vexatious
comment or conduct against an employee in the workplace that is
known or ought reasonably to be known to be unwelcome.
[7] The Union particularized three incidents under this heading.
[8] First, the Grievor alleges that her Manager allocated less hours for her to complete
her audits than was set out in the Audit and Inspections Manual.
[9] In effect this Manual sets out guidelines to the Manager in determining how much
time an auditor is allotted to complete an audit. The guideline is based on the
payroll size of the client. For clients with a payroll less than 1 million dollars, the
guideline is 25 hours. For payrolls between 10 and 100 million the guideline calls
for 50 hours and for clients with payroll is excess of 100 million, the guideline is 75
hours.
[10] The Manual also sets out a process for the auditor to request from her Manager
additional hours to complete the task.
-3-
[11] On direct examination the Grievor testified that just recently she had been
assigned a client with a payroll in excess of 100 million dollars but only allocated
60 hours instead of the 75 hours set out in the guideline. Similarly, she was
assigned only 30 hours to a company with a payroll of approximately 14 million
when the guideline refers to 50 hours and lastly she was assigned only 15 hours
to a small client when the guideline refers to 25 hours.
[12] On cross examination she testified that in the past whenever she requested
additional hours from this Manager for a specific audit, he always approved the
request.
[13] I find that this Manager acted well within his powers to assign the Grievor the hours
that he did and doing so is neither harassment nor a bad faith exercise of
management rights. The Manual speaks to a guideline only while stating clearly
that “The audit manager is responsible for assigning the initial time on the audit.”
A guideline implies that the Manager has a discretion to either assign more or less
hours than the guideline. Moreover, the Grievor’s own testimony is that whenever
she asked for more time, she got it.
[14] The second allegation is that the Manager unfairly denied her permission to take
an educational course. In fact, what happened was the Manager said “no” to her
first choice as he felt it was not related to her work but said ‘yes” to her alternate
choice. The Grievor was asked by her manager to tell him in writing why she
thought her first choice was work related. The Grievor felt that this request for a
written submission constituted bullying.
[15] I disagree. Again, the Manager exercised his right and obligation to assess her
request based on whether it was work related. His request for her written
submission was also very reasonable.
[16] Lastly, the Manager and the Grievor had a dispute arising from the interpretation
of a medical note. Upon a return to work the Grievor presented a medical note
which stated that she was to return to work half days and then indicated a time
period of 10 to 2, in other words 4 hours per day. As the Grievor did not work a 40-
hour work week but rather 36.25 hours, half time would actually be 3.625 hours a
day instead of 4 hours.
[17] In other words, this dispute was over 22.5 minutes a day. In fact, it was not even
over that much because the only difference between working 22.5 minutes and
being on sick leave for the same period is the value of the vacation pay top up,
which is 25% of that amount.
[18] Thus, the real dispute was over about 5 minutes a day.
[19] It is not necessary for me to decide in this case who was right and who was wrong
regarding the issue of the 5 minutes, as managements’ actions, do not arise to the
level of either harassment or the bad faith exercise of management rights.
-4-
[20] The grievance is allowed insofar as the Grievor is entitled to receive vacation pay
in the sum of $50.00. This money should be paid out as soon as practicably
possible.
[21] I retain jurisdiction over all issues regarding the implementation and or
interpretation of this award.
Dated at Toronto, Ontario this 12th day of July, 2018.
“Barry B. Fisher”
______________________
Barry B. Fisher, Arbitrator