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HomeMy WebLinkAboutP-2018-3883.Charlton.20-03-31 Decision Public Service Grievance Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission des griefs de la fonction publique Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 PSGB# P-2018-3883 IN THE MATTER OF AN ARBITRATION Under THE PUBLIC SERVICE OF ONTARIO ACT Before THE PUBLIC SERVICE GRIEVANCE BOARD BETWEEN Charlton Complainant - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Andrew Tremayne Vice Chair FOR THE COMPLAINANT Cassandra Charlton FOR THE EMPLOYER Peter Dailleboust Treasury Board Secretariat Legal Services Branch Senior Counsel HEARING March 10, 2020 -2 - Decision [1] The complainant, Cassandra Charlton, is employed in the Ministry of the Solicitor General as a Sergeant (also known as an Operational Manager) at the Maplehurst Correctional Centre. In June 2017, Ms. Charlton requested workplace accommodation due to family responsibilities. The essence of the request is that Ms. Charlton must leave work no later than 17:00. The employer does not dispute that it has a duty to accommodate Mr. Charlton’s needs based on her family status up to the point of undue hardship. The employer agreed to her request for accommodation, so for the purposes of this decision, the reasons for the request are not relevant. [2] To accommodate the request, the employer modified Mr. Charlton’s hours of work for her regular shifts. When she is scheduled to work from 06:00 to 18:00, her hours of work are changed to 05:00 to 17:00. There is no dispute between the parties about the accommodation of Ms. Charlton’s hours of work when she works her regular shifts. Ms. Charlton’s complaint is that the employer is refusing to modify the hours of work the same way when she is offered an overtime opportunity to work the same 06:00 to 18:00 shift. [3] By way of background, the employer is required to follow a Provincial Overtime Protocol when it distributes overtime hours to bargaining unit employees. As an Operational Manager, Ms. Charlton is not in the bargaining unit; however, the employer has chosen to offer overtime opportunities to all Operational Managers in accordance with the same Protocol. The employer emphasizes that it is under no legal obligation to follow the Protocol for Operational Managers, although it has chosen to do so because the Protocol sets out a fair, equitable, and consistent manner for the distribution of overtime. There is also no term or condition of employment for Operational Managers that guarantees overtime. [4] In accordance with the Protocol, Ms. Charlton is offered the opportunity to work various shifts as overtime. Some of these shifts are from 005:00 to 17:00, and -3 - some of these shifts are from 06:00 to 18:00. The dispute between the parties is about the 06:00 to 18:00 shifts. There is no dispute that the employer allows Ms. Charlton to leave work at 17:00 when she accepts a 06:00 to 18:00 shift as overtime in order to suit the requirement in her accommodation plan that she leaves work no later than 17:00. However, Ms. Charlton complains that this arrangement leaves her with only 11 hours of pay for an overtime shift when a typical overtime shift is 12 hours. She argues that when she accepts a 06:00 to 18:00 shift as overtime, the start and end times of the shift should be modified for her in order to suit the requirement in her accommodation plan that she leaves work no later than 17:00 and so that she is able to work a full 12-hour shift. In other words, Ms. Charlton argues that when she accepts a 06:00 to 18:00 shift as overtime, the employer should modify the hours of the shift so that she starts at 05:00 and works until 17:00. [5] Ms. Charlton says that her hours of work were being modified for her regular shifts as well as all of her overtime shifts until sometime in January 2019 when she was told that when she accepted a 06:00 to 18:00 shift as overtime, she was to report for work at 06:00 and leave at 17:00. This has deprived her of one hour of overtime work (and overtime pay) whenever she worked a 06:00 to 18:00 shift as overtime. She says that the employer had no difficulty accommodating her by modifying the hours of work for her overtime shifts so that she was able to work a full 12 hours until January 2019, and she questions why this was changed at that time. The employer did not review the change with her or explain why it was necessary. [6] Ms. Charlton adds that when she starts work at 05:00, even though the shift technically begins at 06:00, there is always work for her to do, and the institution is often short-staffed. She is helpful when she arrives at 05:00, and the employer is “not paying her to do nothing.” She is there to assist and complement the staffing. She adds that when she has to explain to the Staff Sargent that she cannot work a full 12 hours in an overtime shift, she feels stigmatized and singled out. -4 - [7] Ms. Charlton says that in order to be properly accommodated, she should have the same privileges as her peers, including the ability to work overtime. When she is forced to work from 06:00 to 17:00, she is disadvantaged by one hour. This is a financial hardship for her because overtime is understood to be an essential part of her overall compensation. The employer is required to accommodate her to the point of undue hardship, and one additional hour of overtime is not a significant cost to the employer and does not reach this standard. [8] The employer takes the position that although Ms. Charlton is being accommodated to work modified hours in her regular shifts, it is not required to modify the start time of a 06:00 to 18:00 shift when she accepts one as overtime shift. Other managers are already scheduled to work the night shift, which ends at 06:00, and these managers are being paid to work until the end of their shifts and they are expected to work until that time. The employer says that it does not need an additional manager between 05:00 and 06:00, and it has no obligation to pay Ms. Charlton for an extra hour of work that it does not need, especially at the overtime rate of pay. [9] The employer did not have an obligation to discuss the change in the way that it was accommodating her overtime hours of work, and it is common practice for accommodation arrangements to be reviewed and modified from time to time. All that matters is whether the accommodation decided upon by the employer was reasonable and whether the employer met its duty to accommodate. The employer can change the manner in which it accommodates an employee as long as the new measures continue to meet the employee’s requirements. In this case, the requirement that Ms. Charlton must leave work no later than 17:00, and the employer is continuing to accommodate this. [10] Moreover, the accommodation process does not require an employer to make work or to pay for work that does not need to be done. The duty to accommodate does not prevent an employer from managing its workplace efficiently. An employer is not required to continue to provide work that it does not need or create -5 - a job that is not productive, even if it is being performed by an employee who is being accommodated. The employer relies on Saucier v. Smart Lazer Grafix, 2009 CanLII 1053 (HRTO); OPSEU (Hart-Day) v. Ontario (MCSCS), 2011 CanLII 49508 (ON GSB) (Dissanayake); and Chadwick v. Norfolk (County) 2013 CanLII 2101 (HRTO) in support of these principles. Analysis and Findings [11] Under the Ontario Human Rights Code, employers have a duty to accommodate the needs of people who require workplace accommodation due to a range of family or parental responsibilities. The goal of accommodation is to allow every person to take part equally in employment. Different terms have been applied to describe the standard for the accommodation of an employee, including “appropriate,” “suitable,” and “reasonable.” In a leading case on the subject, the Supreme Court of Canada made it clear that the search for accommodation does not require a perfect solution from the employee’s point of view Central Okanagan School District No. 23 v. Renaud 1992 CanLII81 (SCC). The cases relied upon by the employer build on this basic principle. They support the employer’s position that duties performed by an accommodated employee must still be useful and productive within the employer’s workplace. The work must be of value to the employer, and the duty to accommodate does not require an employer to pay for work that it does not need. [12] In this case, which presents a very narrow issue, Ms. Charlton’s accommodation requires that she be able to leave work no later than 17:00. The employer has modified Mr. Charlton’s hours of work for her regular shifts so that she is still able to work a full 12 hours. As a result, she does not experience any reduction in her regular pay. In addition, the employer allows Ms. Charlton to leave work at 17:00 when she accepts a 06:00 to 18:00 shift as overtime. In other words, the employer permits her to accept an overtime shift even though she is not able to complete it. If the employer did not do this, she would only be able to accept overtime shifts that ended at or before 17:00. -6 - [13] The employer manages, coordinates, and oversees the work performed at the Maplehurst Correctional Centre to ensure public safety and support the care, custody and control of offenders. The employer decides on the staffing levels, work schedules, and assignment of work that it needs in order to meet this obligation and to comply with other statutory requirements, including but not limited to those set out in the Occupational Health and Safety Act. The employer has determined that it does not need an additional manager between 05:00 and 06:00. While Ms. Charlton is helpful when she arrives at 05:00, and the employer is “not paying her to do nothing,” it is up to the employer to decide whether the work that she provides is necessary and whether the employer is required to pay for it. The decision as to whether the work is of value to the employer is the employer’s decision, and not Ms. Charlton’s. Disposition [14] Having carefully considered the evidence and the parties’ submissions, I find that Ms. Charlton has not demonstrated that the employer is not meeting its duty to accommodate her request for workplace accommodation due to family responsibilities. The employer is meeting its duty by modifying Mr. Charlton’s hours of work for her regular shifts and by allowing Ms. Charlton to leave work at 17:00 when she accepts a 06:00 to 18:00 shift as overtime. These modifications are sufficient to meet the requirements of Ms. Charlton’s accommodation plan that she leaves work no later than 17:00, and this is a reasonable and appropriate accommodation on the facts of this case. [15] For all of these reasons, the complaint is dismissed. Dated at Toronto, Ontario this 31st day of March, 2020. “Andrew Tremayne” ________________________ Andrew Tremayne, Vice-Chair