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HomeMy WebLinkAbout2019-0177.Froom et al.19-09-23 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#2019-0177; 2019-0178; 2019-0180 UNION# 2019-0368-0081; 2019-0368-0082; 2019-0368-0084 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Froom et al) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Gail Misra Arbitrator FOR THE UNION Dan Sidsworth Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Sia Romanidis Treasury Board Secretariat Employee Relations Advisor HEARING September 18, 2019 - 2 - Decision [1] The Employer and the Union at the Central East Correctional Centre (CECC) agreed to participate in mediation-arbitration in accordance with the Local Mediation-Arbitration Protocol that has been negotiated by the parties. Should mediation not result in resolution of a grievance, pursuant to the Protocol, they have agreed to a mediation-arbitration process by which each party provides the Arbitrator with their submissions setting out their respective facts and the authorities they may be relying upon. This decision is issued in accordance with the Protocol and with Article 22.16 of the collective agreement, so that it is without precedent or prejudice to any other matters between the parties, and is issued without written reasons. [2] Karen Froom, Teresa Mathison and Jade McConkey each grieved that the Employer violated various provisions of the collective agreement when each grievor was not hired for overtime work on February 18, 2019, and when instead, the Employer hired an OAD 10 to complete their respective OAD 8 work. The grievances are all dated March 12, 2019. By way of remedy, the grievors are seeking to be paid for 8 hours of holiday pay. [3] The three grievors are Inmate Records Clerks, classified at the OAD 8 level. Their duties and responsibilities include working as part of the Admissions and Discharge team at the CECC. Their main duties include work related to booking new admissions, discharging offenders by verifying various information, preparing information about releases, transfers, passes and other release documents, and maintaining and processing inmate records in a variety of ways. In the normal course of their work, the grievors claim that they would prepare transfer files for inmates who are to be transferred to another institution. [4] In and around February 2019 the CECC needed to change the fire suppression system in a unit of the facility, and as such had to transfer inmates from that unit to the Central North Correctional Centre. There were therefore more inmate transfers to be prepared than was normal, and the Employer “hired” Amber Swanton, the Senior Records Clerk, to come in on the statutory holiday of February 18, 2019 to work on the transfer files. At 3:29 p.m. on Monday February 18, 2019, Ms. Swanton sent an email message to Shannon Jeffery (Manager of Inmate Records) and Jason Ciupak, copied to Steve Clancy, as follows: All of the transfer files are done, including the list Clancy gave me today. The staff will just have to worry about their workload this week, unless things change. I have completed all file checks, but I do have a ton of filing to put away. It will be business as usual for the records department Tuesday, as all the extra work is done. … [5] Ms. Swanton is the OAD 10 classified employee who the grievors claim performed their work on the statutory holiday. The Employer maintains that the - 3 - Senior Inmate Records Clerk’s position description includes preparing transfer files and checking them, and that as such, it had the right to call in this individual to perform all the work required, rather than having to call in an Inmate Records Clerk to prepare the transfer files, as well as a Senior Inmate Records Clerk to check the files. [6] A review of the position description for the Senior Inmate Records Clerk suggests that the duties and responsibilities include “ensuring” the integrity and accuracy of offender records for the department in a variety of ways; “ensuring” the set-up and maintenance of up to date offender files and records and “ensuring” that offender documents are completed upon notification of transfer. When compared to the duties and responsibilities that are tasks assigned to Inmate Records Clerks, the Senior Inmate Records Clerk duties and responsibilities appear to be to provide oversight of the work of the OAD 8s, that is, to “ensure” that they have done what is required. [7] Based on Ms. Swanton’s own email describing the work she had done on the day in question, and the consequences thereof, it seems clear that she had “done” the transfer files herself, including a list that had been given to her that day; she says that all the “extra work is done”, so that “it will be business as usual” on the following day in the records department, and that the staff would only “have to worry about their regular workload” for the week. [8] Having considered the evidence and submissions of the parties, I find that putting together inmate transfer packages was work that was regularly performed by the Inmate Records Clerks, but that on February 18, 2019 was work performed by the Senior Inmate Records Clerk. As such, an Inmate Records Clerk should have been hired to perform that work on the statutory holiday. It may be that Ms. Swanton would have had to perform the file checks after the work had been completed by an Inmate Records Clerk, but it is not clear whether that task had to be completed on the statutory holiday or not, and that is not the question before me. [9] Since only one Inmate Records Clerk could have been hired to perform the overtime work in question on the Family day holiday, I have considered which of the three grievors should be compensated for the lost work opportunity. The CECC Overtime Protocol for the Inmate Records Department states that classified Inmate Records Clerks will be offered overtime in order of seniority in conjunction with the number of overtime hours worked to the date of the overtime opportunity. Only after classified staff and temporary assignment inmate records staff lists have been exhausted will casual staff be offered overtime in a fair and equitable manner, and subject to other conditions. [10] Ms. Mathison was a fixed term employee, so overtime work would have been offered to the classified employees before it was offered to her. As such, she would not have been entitled to this overtime opportunity as there were two - 4 - classified employees who have claimed that they were prepared to work on the day in question. [11] Karen Froom was the most senior classified Inmate Records Clerk of the three grievors. As of February 17, 2019 she had worked 12 hours of overtime that month. Jade McConkey, while less senior to Ms. Froom, had worked 17.5 hours of overtime in the month at that juncture. As such, of the two classified employees who filed grievances about this matter, Ms. Froom would have been the Inmate Records Clerk who should have been offered the overtime on the holiday in order of seniority, and in conjunction with the number of overtime hours worked to the date of the overtime opportunity. Ms. Froom should be compensated for 7.25 hours in accordance with the Holiday Payment provision of the collective agreement. [12] To summarize, the Froom grievance is upheld, and payment should be made to Ms. Froom. The McConkey and Mathison grievances are hereby dismissed. I will remain seized to address any issues that arise out of this decision. Dated at Toronto, Ontario this 23rd day of September, 2019. “Gail Misra” Gail Misra, Arbitrator