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HomeMy WebLinkAboutMarks/Knock/Evoy 08-07-30 IN THE MATTER OF AN ARBITRATION B e t w e e n: ONGWANADA (?the Employer?) - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 433 (?the Union?) and in the matter of grievances filed on behalf of Tracy Marks, Cynthia Knock and Mona Evoy. Russell Goodfellow ? Sole Arbitrator APPEARANCES FOR THE EMPLOYER: Alan Whyte, counsel Barry Mapplebeck APPEARANCES FOR THE UNION: Eric O?Brien, counsel Marilyn Rawding Cynthia Knock Mona Evoy A hearing was held in this matter in Kingston on July 16, 2008. AWARD This award deals with a question of remedy: whether the grievors ? whom the Employer concedes were improperly denied the opportunity to work a particular shift or shifts ? are entitled to monetary compensation or in-kind relief. I begin with the observation that an in-kind remedy is presumptively appropriate (insofar as it compensates the employee more closely than pure monetary relief for what was lost ? an opportunity towork to earn the wages in question) but that, under some collective agreements and in some circumstances, such relief is not feasible: seeeg. Cara Operations Ltd. and Teamsters, Loc. 647 (2006), 85 C.L.A.S. 280 (Luborsky). In my view, this is one of those agreements and these are some of those circumstances. I agree with the submission of Union counsel that this collective agreement contains a highly detailed and elaborate system for the awarding of shifts on call-in and overtime, involving such factors as classification (RC, CSW) employee status (full-time, regular part-time, casual) work location (districts, blocks, residences) whether the individuals are on or off-duty, and the timing of the call. The result, as counsel describes it, is a cascading series of steps or obligations that, together, form a complete (and somewhat intricate) code for the allocation of unscheduled work opportunities. Although, as Employer counsel correctly points out, the object set out in more than one place in the collective agreement is an equitable assignment of work, that is simply the starting point. How that objective is to be achieved is spelled out in infinite and restrictive detail. In these circumstances, it would be impossible, in my view, to remedy 2 the violations in question by affording the grievors a further work opportunity without, at least in the cases of Ms. Marks and Ms. Evoy, potentially prejudicing other employees. With respect to Ms. Marks, the primary problem is that, even assuming the in-kind remedy would involve giving her what might be referred to as the next ?Article 10.12(e) shift? (as a function of the operation of paragraph 9 of the relevant Memorandum of Understanding) and not a shift that might otherwise be awarded to a group with a prior entitlement (such as RPTs in the district), the circumstances are ever- changing. Again, assuming that such an award could be made prior to any changes in the composition or order of placement on the list (see Article 10.12(e)(viii)), to give the grievor a shift ?out of turn? could well mean that others ahead of her in rotation would be denied an opportunity to work that would otherwise come to them. This is because the subsequent shifts that might come available for the group may not be able to be worked by the individuals in question whereas the one that was given to the grievor ?out of turn? could have been. With a constant set of changes it is simply not possible to restore equilibrium without, potentially at least, adversely affecting the entitlements of other employees. With respect to the Ms. Knock, it is true once again, that both the collective agreement (Article 10.03(b)) and the Memorandum (paragraph 12) refer to an ?equitable? or an ?[equal] as possible? distribution; however both provisions establish significant limitations on the meaning or effect of those words. The limitations in the former provision include not only that the distribution be ?among employees normally performing the work to be done? but also that it be by ?work areas on a shift? and by ?job 3 classification on a shift?. And, paragraph 12 applies only when more than one employee is eligible (in which case ?classification? and ?status? become relevant). More importantly, paragraph 11 of the Memorandum fleshes out the distribution obligations in great detail through eight categories of ranked entitlements, each with its own stipulations. Here the work in question was assigned entirely outside of the relevant paragraph 11 category to a subsidiary or lesser entitled category or group and it would not be possible to recapture it to the benefit of the grievor without by-passing certain steps. In these circumstances, the work opportunity, to use the jargon of some of the cases, is ?gone for good? or has been ?permanently lost?. Finally, in the case of Ms. Evoy, the assignment went out of the block and district, contrary to paragraphs 5 and 15.2 of the Memorandum. Employer counsel submits that the former ? which grounded Ms. Evoy?s entitlement ? creates a ?form of equitable distribution ? with no particular time frame? because it requires the hours to be awarded ?by classification, to RPT within the block, then to RPT within the rest of the district,both based upon lowest in hours??. (emphasis added) Hence, the submission is, it may be possible to even things out over time. Even assuming that this were true, a significant difficulty is created here by the fact that Ms. Evoy now occupies a higher classification and, hence, is no longer a member of the ?pool? in question. As a result, an in-kind remedy would not only require Ms. Evoy to work outside of her classification ? something clearly not contemplated by the collective agreement ? but would remove a shift from the pool of employees who would otherwise be entitled. Thus, at minimum, in Ms. Evoy?s case, the time for an in-kind opportunity has passed. 4 Finally, I have given some thought to the alternative suggested by the Employer ? of allowing it to construct a work opportunity, i.e. to ?make work?, for the grievors that would not, in theory at least, otherwise arise for any employee. However, I have concluded, as have the majority of arbitrators who have looked at this issue, that such an approach would be neither feasible nor productive. In so stating, my concern is, perhaps, less with the purity of the idea that there is no category of ?make work? under the collective agreement (i.e. that all work ? if it is work ? needs to be assigned in accordance with the terms of the agreement), than with the incentives that such a remedy might create, and with monitoring and policing its application. Even if one were to credit, in a given case, that an assignment could be made that would, in fact, be entirely surplus to the Employer?s needs (i.e.that would not arise in the normal course), it would be exceedingly difficult, if not impossible, to be certain of this in all cases and, over time, even if unintentionally, a new category of quasi-work or replacement work could develop that would simply provide another source of dispute between the parties. For all of these reasons, while I sympathize with the position in which the Employer finds itself ? generated entirely in error (and not un-understandably, in all cases, given the intricacy of the system) rather than by malfeasance ? I find that monetary compensation, together with the relevant seniority accrual, is the appropriate remedy for all of the grievors. The grievances are, accordingly, upheld. 5 I will remain seized with respect to any issues that may arise out of the interpretation or implementation of this award. DATED at Toronto this 30th day of July, 2008. Russell Goodfellow - Sole Arbitrator