HomeMy WebLinkAbout2017-2158.Grant.18-11-27 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# 2017-2158
UNION# 2017-0584-0006
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Grant) Union
- and -
The Crown in Right of Ontario
(Ontario Clean Water Agency) Employer
BEFORE
Michael V. Watters
Arbitrator
FOR THE UNION
Allison Vanek
Ontario Public Service Employees Union
Grievance Officer
FOR THE EMPLOYER Joohyung Lee
Treasury Board Secretariat
Legal Services Branch
Counsel
HEARING October 24, 2018
-2-
DECISION
[1] At the outset of the hearing, the parties filed the following Agreed Statement
of Facts:
“1. David Grant (hereinafter known as “the Grievor”) is currently a
permanent OPSEU-represented electrician with the Ontario Clean
Water Agency, working out of the Lorne Park Water Treatment
Facility. He has worked in this position since August 8, 2016.
2. At all material times, the Grievor worked for (sic.) morning shift,
Monday to Friday, 7:00 am to 3:30 pm, with a 30 minute lunch break
(i.e. eight (8) hours of work).
3. The Grievor filed a grievance on May 26, 2017, alleging violations of
the OPSEU Collective Agreement relating to the pay he received for
being called in to work on Sunday, January 1, 2017.
4. On January 1, 2017, the Grievor was not scheduled to work, but was
on call.
5. The Grievor was in fact called in to work on Sunday, January 1, 2017
from 2:00 pm until 4:00 pm.
6. For his two hours of work on Sunday, January 1, 2017, the Grievor
was paid a minimum of four (4) hours pay at one and one half (1 ½)
times his base hourly rate, according to Article UN 9 of the Collective
Agreement.
7. On Monday, January 2, 2017, the Grievor was not scheduled to work
and did not work. For this day, the Grievor was paid for eight (8) hours
of work at his base hourly rate, according to Article 47 of the Collective
Agreement.
8. A Formal Resolution Stage meeting was held on June 13, 2017.
9. The grievance was denied on June 19, 2017.
10. It is the Employer’s position that the Grievor was properly paid for his
work on Sunday, January 1, 2017. It is the Employer’s position that
under Article 47.2 of the Collective Agreement, the Grievor’s holiday
was Monday, January 2, 2017, and not Sunday, January 1, 2017,
making him ineligible to receive the benefits enumerated in Article UN
13.1. Since at least 2010, the Employer has paid employees call-back
pay, rather than holiday pay under Article UN 13.1, for call-back work
on a holiday specified in Article 47.1 that fell on a Saturday and/or
-3-
Sunday when a holiday(s) in lieu was provided to the employee on
their next regular working day(s) in accordance with Article 47.2.
11. It is the Union’s position that the Grievor should have been paid a
minimum of eight (8) hours pay at two (2) times his base hourly rate,
according to Article UN 13.1-Holiday Payment for his work on Sunday,
January 1, 2017. It is the Union’s position that the Grievor was eligible
for the premiums enumerated in both Article UN 9 and Article UN 13,
and therefore he should have received the greater of the two
premiums, which in this case was Article UN 13.1.
12. The Union is seeking for the Grievor to be paid the difference between
eight (8) hours pay at two (2) times his base hourly rate and four (4)
hours pay at one and one half (1 ½) times his base hourly rate, which
comes out to ten (10) hours pay.”
[2] The grievor, Mr. David Grant, presented brief viva voce evidence. In
substance, he confirmed the material facts set out in the above Agreed Statement
of Facts. The grievor advised that the call-in on January 1, 2017 caused him to
miss a previously scheduled lunch with his family on that day. It is apparent from
his evidence that the grievor knew in advance that he would be on-call on the New
Year’s Day in question.
[3] The provisions of the collective agreement relevant to the resolution of the
grievance are as follows:
ARTICLE 47 – HOLIDAYS
47.1 An employee shall be entitled to the following paid holidays
each year:
New Year’s Day Good Friday
Easter Monday Victoria Day
Canada Day Civic Holiday
Labour Day Thanksgiving Day
Remembrance Day Christmas Day
Boxing Day Family Day
-4-
Any special holiday as proclaimed by the Governor General
or Lieutenant Governor.
47.2 Except as provided in Article 47.3 when a holiday specified in
Article 47.1 falls on a Saturday or Sunday or when any two of
them fall on a successive Saturday and Sunday, the regular
working day or days next following is a holiday or are holidays,
as the case may be, in lieu thereof, but when such next
following regular working day is also a holiday the next regular
working day thereafter is in lieu thereof a holiday.
47.3 Those employees whose work schedules are subject to
rotating work weeks which include scheduled weekend work
on a regular or recurring basis shall have the Canada Day,
Remembrance Day, Christmas Day, Boxing Day and New
Year’s Day holidays designated as July 1st, November 11th,
December 25th, December 26th and January 1st, respectively,
and Article 47.2 shall have no application to these employees
in respect of these holidays.
ARTICLE UN 9 – CALL BACK
(FPT, RPT)
UN 9.1 An employee who leaves his or her place of work and is
subsequently called back to work prior to the starting time of
his or her next scheduled shift shall be paid a minimum of four
(4) hours pay at one and one-half (1 ½) times his or her basic
hourly rate.
ARTICLE UN 13 – HOLIDAY PAYMENT
UN 13.1 Where an employee works on a holiday included under Article
47 (Holidays) of the Central Collective Agreement, he or she
shall be paid at the rate of two (2) times his or her basic hourly
rate for all hours worked with a minimum credit of seven and
one-quarter (7 ¼), eight (8), or the number of regularly
scheduled hours, as applicable.
UN 13.2 In addition to the payment provided by Article UN 13.1, an
employee who works on the holiday shall receive either seven
and one-quarter (7 ¼) or eight (8) hours pay as applicable at
his or her basic hourly rate or compensating leave of seven
and one-quarter (7 ¼) or eight (8) hours as applicable,
provided the employee opts for compensating leave prior to
the holiday.
[4] The respective positions of the parties are set out in paragraphs ten (10) through
twelve (12) of the Agreed Statement of Facts.
-5-
[5] The Union relies on the following authorities in support of its position: OPSEU
(Bell) and Ministry of Community and Social Services (1980), GSB No. 116/78 (Swinton);
OPSEU (Frame) and Ontario Clean Water Agency (2005), GSB No. 2004/1103
(Leighton); and OPSEU (McIntosh) and Ontario Clean Water Agency (2008), GSB No.
2007/0356 (Petryshen).
[6] The Employer, in response, relies on the following authorities: OPSEU (Union)
and Ministry of Government Services (2012), GSB No. 2010/0405 (Abramsky); OPSEU
(Parsons) and Ministry of Government Services (1979), GSB No. 81/78 (Prichard);
OPSEU (McIntosh) and Ontario Clean Water Agency, cited above; OPSEU (Radic) and
Ministry of Health (1985), GSB No. 1285/84 (Verity); and Otis Canada, Inc., [2000]
O.L.R.D. No. 282.
[7] Article 47.1 of the collective agreement lists twelve (12) paid holidays that
employees are entitled to enjoy each year. The list includes New Year’s Day. Article
47.2 provides that when a holiday specified in article 47.1 falls on a Saturday or Sunday,
then the regular working day next following is a holiday in lieu thereof. Article 47.3
provides for an exception to the application of article 47.2. More specifically, employees
whose work schedules are subject to rotating work weeks, which include scheduled
weekend work on a regular or recurring basis, shall have the five (5) specified holidays,
including New Year’s Day, designated as falling on their precise calendar date.
[8] This case, ultimately, turns on whether January 1 or January 2, 2017 was the
grievor’s holiday for purposes of application of the collective agreement provisions
-6-
relating to payment for work performed on a holiday. If the grievor’s holiday was January
1, 2017, then he would have been entitled to be paid pursuant to article UN 13.1 for the
call-back work that day. Simply stated, he should have been paid at the rate of two (2)
times his basic hourly rate for eight (8) hours, or to put it another way for sixteen (16)
hours. If, on the other hand, January 2, 2017 was the grievor’s holiday, his entitlement
for the call-back work on January 1, the previous day, would have been pursuant to article
UN 9. In that event, he should have been paid for four (4) hours at one and one-half (1½)
times his basic hourly rate, or for six (6) hours. As noted in the Agreed Statement of
Facts, this is the issue dividing the parties in this proceeding.
[9] In my judgment, the effect of article 47.2 was to make Monday, January 2, 2017
the grievor’s holiday, as a consequence of the fact that New Year’s Day fell on a Sunday
that year. Clearly, the exception provided by article 47.3 is inapplicable, as the grievor’s
work schedules were not subject to rotating work weeks including weekend work on a
regular or recurring basis. Because of this, the 2017 New Year’s Day holiday was not
designated as January 1, 2017 for this grievor under article 47.3. I note that article UN
13.1 commences with the words, “Where an employee works on a holiday included under
Article 47 (Holidays) of the Central Collective Agreement….” On my reading, this
language does not preclude the application of article 47.2 which, to reiterate, made
Monday, January 2, 2017 the grievor’s holiday in lieu of Sunday, January 1, 2017. It is
acknowledged that if the grievor had been called in on January 2, 2017, then he would
have been entitled to compensation under article UN 13.1. It is apparent from a review
of the relevant contractual provisions that as January 2, 2017 was the grievor’s holiday
-7-
for payment purposes, he was not entitled to the benefit of article UN 13.1 for work
performed on January 1, 2017. Rather, his entitlement that day flowed from article UN 9.
[10] I do not accept the Union’s position that the grievor was eligible for the premiums
enumerated in both articles UN 9 and UN 13 for the work performed on January 1, 2017
and that he was, therefore, entitled to the greater of the two (2). As mentioned, article
UN 13.1 speaks of work performed “on a holiday included under Article 47”. I have been
persuaded that the grievor’s holiday was January 2, 2017 by virtue of the application of
article 47.2. It follows that he was not entitled to holiday payment for the call-back on
January 1, 2017. A contrary interpretation could potentially have obligated the Employer
to resort to article UN 13.1 on both of January 1 and January 2, 2017 had the grievor
been called back into work on both days. This form of “double dipping” could serve to
increase the number of paid holidays, for payment purposes, from twelve (12) to thirteen
(13).
[11] The Decisions in Radic, Parsons and Otis Canada, Inc. are supportive of my
determination that the holiday for the instant grievor, as it relates to payment for work
performed, was Monday, January 2, 2017.
[12] In Radic, the grievor was a Food Service Worker at the Kingston Psychiatric
Hospital. He regularly worked eight (8) hours per day, forty (40) hours per week. His
work schedule was subject to rotating work weeks, which included scheduled weekend
work on a regular or recurring basis. In 1984, Remembrance Day, a specified holiday
under the collective agreement, fell on Sunday, November 11th. In accordance with the
provisions of article 47.2, the Employer designated Monday, November 12, 1984 as the
Remembrance Day holiday. The grievor worked his scheduled shift on Sunday,
-8-
November 11th, but did not work on Monday, November 12th. For the latter day, he
received eight (8) hours pay at his basic hourly rate. The issue between the parties was
the grievor’s entitlement with respect to the work performed on the Sunday.
[13] The Decision in Radic contains the following comment on the operation of article
47.2:
“Article 47.1 entitles all employees to 11 annual
designated holidays including Remembrance Day. Article
47.2 states, in part, that except for the provisions of Article
47.3, that where a holiday designated in Article 47.1 falls
on a Saturday or Sunday, the regular working day next
following shall be the holiday. Therefore, in accordance
with the Collective Agreement, the Employer properly
designated Monday, November 12 as the Remembrance
Day Holiday in 1984. All Employees are affected by the
provisions of Article 47.2.”
Ultimately, it was determined that the grievor was not entitled to holiday pay for working
on Sunday, November 11, 1984, as his holiday became Monday, November 12, 1984
through the operation of article 47.2. I note that article 47.3 was inapplicable given that,
as then worded, Remembrance Day was not one of the designated holidays referenced
therein.
[14] The facts in Radic are substantially similar to the circumstances existing in this
case. The holiday in question fell on a Sunday. As a consequence, the Employer
designated the following Monday as a holiday. The grievor, there, worked on the Sunday,
but not on the Monday. Because of the operation of article 47.2, the Sunday was not
considered to be a holiday for the grievor and he, accordingly, was not entitled to holiday
pay for work performed that day. The Decision in Radic supports the conclusion that the
holiday for the instant grievor was Monday, January 2, 2017 and that, as a consequence,
-9-
he was not entitled to holiday payment under article UN 13.1 for the call-back work
performed on January 1, 2017.
[15] In Parsons, the grievor normally worked eight (8) hours per day, forty (40) hours
per week, Monday to Friday. New Year’s Day in 1978 fell on a Sunday, as here. Sunday
was normally a day on which that grievor did not work. In accordance with article 9.1 of
the collective agreement, the Employer designated January 2, 1978 as the holiday. It is
material that the wording of article 9.1, apart from a reference to different article numbers,
was identical to the language now contained in article 47.2. The issue in Parsons,
ultimately, focused on how the grievor was to be paid for working on January 2, 1978. In
this respect, the issue was different from that arising in this case. It is significant, however,
that the parties there appeared to accept that January 2nd was the appropriate holiday in
terms of assessing the grievor’s entitlement to holiday pay. Put another way, there was
no dispute that the Monday became a holiday in lieu through the operation of article 9.1
of the collective agreement.
[16] Otis Canada, Inc., a Decision of the Ontario Labour Relations Board, is also
instructive on this issue. There, the grievor performed call-back work on Saturday,
December 26, 1998. Boxing Day was recognized as a holiday under article 6.01 of the
collective agreement. The question in Otis Canada, Inc. was whether Saturday,
December 26, 1998 was a holiday, requiring work to be paid for at the rate of double time,
or was to be treated as an ordinary Saturday requiring payment at the rate of time and
one-half (1½). Article 6.02.01 of the collective read:
“When a Holiday falls on a Saturday or Sunday, such
Holiday shall be observed on the next regular work day. No
work except emergency work shall be performed on any
-10-
Holiday, however any work which is performed on a Holiday
shall be paid for at applicable overtime rates.”
The Ontario Labour Relations Board held that the effect of the above article was to move
the holidays from their actual calendar date to the nearest Monday. Their Decision
comments as follows on this point:
“However, once a movement of the holiday takes place, on
the language of this Collective Agreement it takes place for
all purposes, both observance and the obligation to pay the
higher premium pay for interrupting that observance. The
following Monday becomes the holiday.”
(paragraph 12)
“………all of the attributes of the holiday have been moved
to the Monday. The Saturday is no longer, for the purposes
of this collective agreement, a holiday.”
(paragraph 14)
and
“We find that when Boxing Day fell on a Saturday in
December 1998, by virtue of Article 6.02.01, the holiday
was moved to Monday, December 28 for the purposes both
of observance of the holiday and payment of holiday
premium pay. Saturday, December 26 became, for the
purposes of the Collective Agreement, an ordinary
Saturday. Any work performed on that day attracted only
the time and a half premium rate required by Article 9.05.
The grievance is therefore dismissed.”
(paragraph 16)
[17] On my reading, article 6.02.01 of the collective agreement in Otis Canada, Inc. is
similar in both purpose and effect to article 47.2 of the instant collective agreement. The
Decision reinforces the position of the Employer that January 2, 2017 was the holiday for
purposes of any payment pursuant to article UN 13.1. It is also consistent with the
reasoning expressed in Radic.
-11-
[18] I have closely reviewed the Decisions cited by the Union. After so doing, I find that
they are all distinguishable. The cases addressed the question as to how employees
should be paid when they worked on holidays falling on either a Monday or a Friday
(Easter Monday in Bell; Good Friday in Frame; and Thanksgiving Day in McIntosh). None
of the holidays in issue fell on a Saturday or Sunday, as here. The Decisions found that
when an employee worked the actual holiday, they were entitled to the superior benefit
provided for by article UN 13.1, or its predecessor article. What is significant is that none
of the three (3) Decisions relied on involved a situation where the holiday was moved to
the next regular work day by operation of article 47.2, or its former equivalent. In these
cases, the Grievance Settlement Board did not have to determine which day was to be
treated as the holiday for payment purposes, as it was readily apparent that the grievors
worked on one (1) of the holidays expressly provided for in the collective agreement.
[19] I note that Frame also dealt with a different issue, this being whether the grievor
was entitled to the benefit of articles UN 13.1 and UN 13.2 for each of the two (2) call-
backs on Good Friday of 2004. The Decision held that the grievor was entitled to
compensation under the aforementioned provisions for both the first and second call-
backs.
[20] McIntosh similarly confronted a different issue. In that instance, the grievor was
compensated for two (2) call-backs on Thanksgiving Day by payment for each of the call-
backs at two (2) times his basic hourly rate for eight (8) hours pursuant to article UN 13.1
and eight (8) hours pay pursuant to article UN 13.2. The threshold issue in McIntosh was
whether the grievor was also entitled to a further eight (8) hours of pay for the holiday
under article 47.1. The Vice-Chair answered this question in the negative and found that
-12-
article UN 13 provided for a complete code for payment for an employee called back to
work on a paid holiday.
[21] The Union suggested in argument that there is a distinction between static or fixed
holidays which fall on the same date each year, such as New Year’s Day, and other
floating holidays, such as Easter, which can fall on many different dates. Its
representative submitted that the former category of holidays are more “significant” than
the latter. It seems that this submission was premised on an assumption that employees
might be more likely to plan family and social events for a fixed or static holiday and that
a call-back on such a holiday would result in greater inconvenience. I have not been
persuaded that the nature of the holiday assists with the resolution of this grievance. The
result, rather, must flow from the language of the collective agreement.
[22] I can readily understand that the grievor may have been inconvenienced and was
upset about missing lunch with his family on January 1, 2017. I do not think, however,
that his personal feelings are material to the disposition of the grievance. To repeat, this
difference between the parties must be determined on the basis of an interpretation of the
collective agreement.
[23] The Agreed Statement of Facts references the following past practice:
“…………..Since at least 2010, the Employer has paid
employees call-back pay, rather than holiday pay under
Article UN 13.1, for call-back work on a holiday specified in
Article 47.1 that fell on a Saturday and/or Sunday when a
holiday(s) in lieu was provided to the employee on their next
regular working day(s) in accordance with Article 47.2.”
(paragraph 10)
This history was not addressed by either party during the course of argument. I am not,
therefore, inclined to base this Decision on the existence of such a practice. I note,
-13-
however, that the practice is consistent with the interpretation I have reached relating to
the application of articles 47.2 and UN 13.1.
[24] The Union did not advance any claim for the grievor under article UN 13.2. As
stated in the Agreed Statement of Facts, the grievor was paid for eight (8) hours at his
basic hourly rate according to article 47 in respect of Monday, January 2, 2017, a day on
which he did not work.
[25] For all of the above reasons, I find that the grievor was paid for the call-back on
January 1, 2017 in conformity with the provisions of the collective agreement. This aspect
of the grievance is accordingly dismissed.
Dated at Toronto, Ontario this 27th day of November, 2018.
“Michael V. Watters”
______________________
Michael V. Watters, Arbitrator