HomeMy WebLinkAbout2018-3598.Kerr et al.19-10-28 DecisionCrown Employees
Grievance Settlement
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Commission de
règlement des griefs
des employés de la
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Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
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GSB# 2018-3598
UNION# 2018-0430-0021
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Kerr et al) Union
- and -
The Crown in Right of Ontario
(Ministry of Transportation) Employer
BEFORE
Kevin Banks
Arbitrator
FOR THE UNION
Erin Thorson
Ontario Public Service Employees Union
Grievance Officer
FOR THE EMPLOYER Janet Sinclair
Treasury Board Secretariat
Employee Relations Advisory Services
Team Lead
HEARING October 22, 2019
-2-
DECISION
[1] The parties have referred this matter to expedited mediation-arbitration in
accordance with Article 22.16 of the Collective Agreement. The parties agree
that I have jurisdiction to decide it. Under Article 22.16, where the parties are
unable to resolve their differences through mediation, the arbitrator is to
expeditiously issue a succinct decision without precedential value, unless the
parties agree otherwise.
[2] The hearing took place on October 22, 2019. I received evidence and
submissions from the Union and the Employer.
[3] The grievance alleges that the Employer failed to distribute overtime that it
authorized Mr. Justin Smit to work on February 14, March 29 and May 24, 2018
fairly and equitably, because it had failed to develop methods of distributing
overtime at the local workplace that are fair and equitable, contrary to Article UN
8.2.1 of the Collective Agreement.
[4] The Employer submits that Article UN 8.2.1 does not apply to the overtime that
Mr. Smit worked because that overtime was authorized by mistake, one that the
Employer did not discover until after it had been worked. The Employer
maintains that any method of distributing overtime could only apply to overtime
that it actually anticipated assigning. The Employer says that it does develop fair
and equitable methods to distribute overtime before it undertakes projects that it
anticipates will require overtime.
[5] The evidence shows that Mr. Smit worked the hours in question because of a
good faith scheduling mistake by the Employer, and that the Employer did not
discover the mistake until after he had worked them.
[6] Having carefully considered the evidence put before me, the submissions of the
parties, and the language of the relevant provisions of the Collective Agreement,
I have concluded that there was no breach of the Collective Agreement. In my
view, in Article UN 8.2.1 the term “assignment” does not refer to a situation such
as this one in which the Employer was not aware at the relevant time, due to a
good faith error, that it had authorized overtime. As this is sufficient to decide on
the grievance, I make no other findings.
[7] The grievance is dismissed.
Dated at Toronto, Ontario this 28th day of October, 2019.
“Kevin Banks”
______________________
Kevin Banks, Arbitrator