HomeMy WebLinkAbout2018-0915.Romagnuolo.20-02-20 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# 2018-0915; 2018-2188
UNION# 2018-0368-0097; 2018-0368-0238
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Romagnuolo) Union
- and -
The Crown in Right of Ontario
(Ministry of the Solicitor General) Employer
BEFORE Brian P. Sheehan Arbitrator
FOR THE UNION Gregg Gray
Ontario Public Service Employees Union
Grievance Officer
FOR THE EMPLOYER Sia Romanidis
Treasury Board Secretariat
Employer Relations Advisor
HEARING January 16, 2020
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Decision
[1] The Employer and the Union at the Central East Correctional Centre agreed to
participate in the Expedited Mediation/Arbitration process in accordance with the
negotiated Protocol. It is not necessary to reproduce the entire Protocol. Suffice to say,
that the parties have agreed to a True Mediation/Arbitration process wherein each party
provides the Arbitrator with their submissions setting out the facts and the authorities
they respectively will rely upon. This decision is issued in accordance with the Protocol
and with Article 22.16 of the collective agreement; and it is without prejudice or
precedent.
[2] The grievor, Kimberly Romagnuolo, was then employed as a Rehabilitation Officer
2 at the Central East Correctional Centre (CCEC).
[3] The grievances in question relate to two different overtime opportunities that the
Union asserts that the employee should have been offered, pursuant to the Overtime
Protocol applicable to the grievor.
[4] The first overtime opportunity related to 5 hours of work which was offered to
employees on April 3, 2018. There is no dispute that the grievor was off work sick that
day. It would appear that the grievor was absent on April 5 and 10 as well due to illness.
[5] The Employer notes that the grievor was offered a 5-hour overtime opportunity on
April 4. It is the position of the Employer that this particular offer effectively “rectified”
any defect associated with the grievor not being offered overtime on April 3.
[6] The Union asserts that there is no mention in the Overtime Protocol suggesting
that the Employer is not required to offer overtime opportunities to employees off work
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sick. The Union suggests it was common practice in the institution that future overtime
opportunities are offered to employees while absent due to an illness. It is further noted
that with respect to this particular group of employees, there is, generally, a seven-day
window to complete the assigned overtime task.
[7] The Union also suggests that the offer of an overtime opportunity to the grievor on
April 4 is not relevant to the failure of the Employer to offer the grievor the overtime
opportunity on April 3. Further to this point, it is submitted that the accepted practice of
the parties is such that it is inappropriate for the Employer to assert that the grievor was
made “whole” by way of a subsequent offer of overtime.
[8] Reviewing the relevant facts, it is my assessment that the Employer breached the
relevant Overtime Protocol with respect to failing to offer the grievor the 5-hour overtime
opportunity on April 3. The fact that the grievor was off work due to illness did not
preclude her right to be offered future overtime opportunities in accordance with the
provisions of the relevant Overtime Protocol. Additionally, I accept the Union’s position
that the Employer’s offer of the 5-hour overtime opportunity on April 4 did not rectify and
render the grievor “whole” regarding the missed overtime opportunity on April 3.
[9] Against the above background, Grievance #2018-0368-0097 is upheld. The
Employer is, hereby, directed to pay to the grievor the sum equal to 5 hours of overtime
pay.
[10] The Union agreed that if, in fact, the Employer had properly offered the grievor the
overtime opportunity of 5 hours on April 3, the grievor would not have been entitled to the
8-hour overtime opportunity that is the subject matter of Grievance #2018-0368-0238.
Accordingly, that grievance is, hereby, dismissed.
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[11] I remain seized with respect to any dispute regarding the remedy set out at
paragraph [9] above with respect to Grievance #2018-0368-0097.
Dated at Toronto, Ontario this 20th day of February, 2020.
“Brian P. Sheehan”
Brian P. Sheehan, Arbitrator