HomeMy WebLinkAbout2018-2646.Jeffery et al.19-05-22 Decision
Crown Employees Grievance Settlement
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Commission de
règlement des griefs
des employés de la
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Bureau 600
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Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
Téléc. : (416) 326-1396
GSB#2018-2646
UNION# 2018-0603-0003
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Jeffery et al) Union
- and -
The Crown in Right of Ontario
(Ministry of Natural Resources and Forestry) Employer
BEFORE Barry Stephens Arbitrator
FOR THE UNION Alex Zamfir
Ontario Public Service Employees Union
Grievance Officer
FOR THE EMPLOYER Omar Shahab
Treasury Board Secretariat
Legal Services Branch
Counsel
HEARING May 17, 2019
- 2 -
Decision
[1] This matter was heard under Article 22.16 of the collective agreement. The parties
participated in a mediation process at the hearing on May 17, 2019 but were unable
to find a mutually acceptable solution to the grievance. As a result, under the terms
of Article 22.16, I am tasked with providing a “succinct” decision resolving the
dispute. The collective agreement states that decisions rendered under Article
22.16, “…shall have no precedential value unless the parties agree otherwise.”
[2] The grievance involves an overtime claim regarding a twelve-hour shift on June
18, 2018. There is an overtime protocol policy that governs the assignment of
overtime in this workplace. The policy stipulates that the employer will consider
overtime assignments when, “…all other possibilities have been exhausted in an
attempt to fill the shift.” I note that the use of fixed-term employees is the only
specifically identified method by which the employer may avoid overtime. The
policy also provides that, where an overtime opportunity is created, it shall be
offered to employees on the overtime list in sequence.
[3] The shift on June 18 was assigned to a fixed-term employee. As a result of the
assignment of this shift, the fixed-term employee’s anticipated hours for the two-
week period in question totaled 84 hours. There is no dispute, therefore, that the
fixed-term employee became eligible to four hours of overtime when the shift was
assigned.
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[4] The union argues from these facts that the shift in question represented an
overtime opportunity in its entirety (i.e. 12 hours), and that employees on the
overtime list should be reimbursed for the loss of opportunity. The employer
argued that the extent of overtime available was not greater than 1.5 hours, given
the number of hours actually worked by the fixed-term employee during the
relevant two-week period.
[5] In my view, the overtime opportunity should be measured by the number of hours
of overtime available at the time the shift was offered. However, it is also my view
that the overtime protocol is drafted in such a way as to place considerable
emphasis on the employer’s right to take any reasonable measures to avoid
overtime, and specifically to do so by using fixed-term employees. As a result, I
find that the employer should pay the equivalent of four hours of overtime pay to
the employee who would have been next offered overtime on the night in question.
According to the records I was provided, the next eligible employee on the overtime
list was Jamie Boston.
[6] I remain seized to deal with any issues arising from the implementation of this
award.
Dated at Toronto, Ontario this 22nd day of May, 2019.
“Barry Stephens”
Barry Stephens, Arbitrator