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HomeMy WebLinkAboutMCSHEFFREY-1998-11-12 NOV-25-99 02:16 PM P.02 IN THE MATTER OF AN ARBITRATION BETWEEN: Association of Allied Health Professionals: Ontario (Hereinafter referred to as "the Association>>) - and - Community Care Access Centre in Renfrew County (Hereinafter referred to as "the employer") In the Matter of the Overtime Grievance of Susan McSheffrey Before: D.H. Kates, Arbitrator Appearing for the Association: Judith Allen, Counsel Appearing for the Employer: Russel W. Zinn, Counsel Heard at Ottawa, Ontario, on November 24, 1998 NOV-2S-99 02:16 PM P.03 1 Decision The grievor, Ms. Sue McSheffrey, is employed as a physiotherapist in the h~mecare programme provided by the employer. She works out oftbe employer's Renfrew office and her regularly scheduled work day is between 8:30 am and 4:30 pm with a one (1) hour unpaid lunch break. On Monday, February 23, 1998, the grievor attended a meeting arranged by management at its Renfrew office commencing at 8:00 am and finishing at 9:30 am. The grievor claimed overtime at the prescribed premium rate for the period between 8 am and 8:30 am. That claim amounted to $39.00. The relevant provisions with respect to overtime under the parties' collective agreement read as follows: 10.01 (a) The core hours of work are between 8:00 hand 16:30 h, Monday to Friday. 10.02 (a) The hours of work for full time employees shall be 35 hours per week, seven consecutive hours per day, exclusive of a meal period not to exceed I hour. 10.Q3 All time worked in excess of thirty-five (35) hours per week shall be considered as overtime, subject to the following conditions: (a) the employee is authorized by her supervisor to work overtime; time of less than one half (1/2) hour will not be counted. Time of at least one half (1/2) hour will be counted as one (1) hour. The employer rejected the grievor's claim for overtime for the many reasons that will be reviewed in the following decision. It suffices to say for present purposes that the employer treated the disputed period between 8:00 am and 8:30 am as "flex time" and accordingly permitted the grievor "to bank" the time spent at the straight hour rate. The parties' letter of understanding allowing for "flex time" is attached to the collective ,agreement and should be set out in its entirety: NOV-25-9~ 02:17 PM P.04 2 NlEMORAh'DUM OF AGREEMENT BETWEEN THE RENFREW COUNTY & DISTRICT HEALTH UNIT AND THE ASSOCIATION OF ALLIED HEALTH PROFESSIONALS: ONTARIO RE: FLEX Tllv1E Flex time is the ad hoc adjustment of scheduled hours. The employee's written request for flex time will be considered by the employer. Additional premiums will not apply. Flex time includes adjusting the schedule such that lesser or increased hours alter the normal daily hours, but the sum of lesser or increased daily hours must balance within a pay period. Flex time may include the adjustment of schedules such that the work day continues in whole or in part outside of core hours. The Employer is not precluded from proposing flex time as a scheduling option. Flex time is a totally voluntary arrangement. The approval of employee initiated flex time is at the discretion of the employer and is not subject to the grievance/arbitration clauses. This provisioIr terminates on December 31, 1996, unless extended by mutual agreement. It is important to observe that the griever is not only employed as a physiotherapist but holds the capacity as the Association's staff representative at the Renfrew office couched with the responsibility of protecting bargaining unit entitlements under the current collective agreement. In that role, Ms. McSheffrey maintained that she did not agree to or approve of the employer's attempt to cover payment for the half (112) hour period as "flex time". The facts and circumstances precipitating Ms. McSheffrey's grievance claiming overtime are relatively straightforward and undisputed. The employer provides "home care" services to patients residing in municipal areas comprising Renfrew county. Those municipalities included Renfrew, Pembroke, Arnprior, Barry's Bay and Deep River. In November, 1997, the then acting Director, Mr. Jim Corneil, proposed a reconfiguration of NOV-2S-99 02:~7 PM P.0S 3 the work functions from a geographic based to a direct patient based service. To this end it was anticipated that the Arnprior office would be closed and merged with the Renfrew office. A meeting presided over by Ms. Karen Roosen, Programme Director, Rehabilitation Services, was arranged during working hours on February 16, 1998, in , order to advise the affected employees of the proposal and to entertain questions with respect to its implications for the workplace. It is common ground that the employees did not receive the employer's proposal with equanimity. Concerns were expressed with respect to surpluses arising out of the merger of the offices and the likelihood of layoffs. Many of the questions relating to these concerns could not be answered by Ms. ROClsen. Despite her best efforts, the employees concluded that Mr. Cornell was the mClre appropriate person to respond to their concerns. They therefore requested a second "follow up" meeting at whbh time Mr. Corneil would likely be more responsive to their questions. Ms. Roosen undertook to use her influence to arrange such a meeting. Upon consultation with Mr. Comeil a second meeting was tentatively scheduled for the Renfrew office on Monday, February 23, 1998, commencing at 8:30 am. The employer appreciated there existed amongst the staff a sense of urgency with respect to its proposal and therefore attempted to expedite the holding of the follow up meeting. Unfortunately a conflict arose because of anotber meeting for the employer's "rehab" staff was scheduled for 9:30 am at the Pembroke office that day. Three members of the employer's rehabilitation staffinc1usive of Ms. McSheffrey worked out of the Renfrew office. As a result in order "to accommodate" these employees, the employer proposed that the rehab meeting at Pembroke be pushed back to a lOam starting time and that the NOV-25-99 1212:18 PM P..06 4 follow up meeting at Renfrew with Mr. Corneil would commence at 8 am. It was further proposed that the half hour period between 8:00 am and 8:30 am be treated for pay purposes as "flex time". Management's posting, dated February 19th, of these arrangements at its Renfrew office reads as follows: MEMORANDUM TO: FROM: DATE: Rehab and Nursing Karen Roasen 19/02/98 RE. Rehab Meeting - Monday, February 23,1998 (change in start time) Please note that Jane Jones will be presenting from 10:00 am to 12:00 pm on Monday, February 23, rather than 9:30 to accommodate Renfrew's meeting with Jim from 8:00 to 9:00 am. Renfrew staffwho will be attending Jim's meeting can flex their day from 8:00 until 4:00 pm. Please contact me if there are any questions. Thanks: Ms. McSheffrey read the posting outlining the meeting arrangements and took exception to management's attempt to treat the balf hour period as "flex time". Because of her busy schedule on Friday, February 20\h, she did not telephone Ms. Roosen until late in the day to advise ofber concerns. At all material time Ms. McSheffrey was insistent that the halfbour period be treated as overtime. Accordingly, the grlevor left a "voice mail" message advising her supervisor of her position and the position of the Association with respect to the employer's characterization of that period as flex time. Prior to making the telephone call, Ms. McSheffrey testified that sbe had consulted both with the President of the Local and the Association Representative to ensure their support for her interpretation of tbe collective agreement. NOY-25-99 02:19 PM p.el 5 Ms. McSheffrey made no attempt to contact any other management representative to advise them of her objection presumably with a view to enabling it to cancel the meeting, Nor was there any attempt on Ms. Rcosen's part to check her messages at the end of the work day on February 20th that would bave alerted her and her colleagues to a , potential problem. It suffices to say the meeting presided over by Mr. Corneil proceeded as scheduled at 8:00 am on February 23, 1998. In attendance were approximately seven employees affected by the proposed closure inclusive of the three rehabilitation employees. Mr. Corneil received their "feedback" and was sufficiently alarmed by the employees' "negative" attitude that another third follow up meeting was proposed (and which took place) during regular working hours on March 21". At the February 23'd meeting, no mention was made of the overtime dispute. However, the three rehabilitation employees proceeded to journey to Pembroke to attend the meeting scheduled for lOam. Ms. Raasen had by that time checked her voice mail and was fully aware of Ms. McSheffrey's concerns. Sometime during that day both Ms. Roosen and Ms. McSheffrey exchanged views with respect to their respective interpretations of the collective agreement and the manner in which the disputed half hour period should be covered for pay purposes. And without detailing the serious misunderstanding that emerged from their encounter, it was clear that Ms. McSheffrey remained steadfast in her opinion that overtime was the appropriate way for management to treat the problem. And by the same token Ms. Roosen was insistent that management had properly invoked "flex time" and thereby overtime would not be appropriate. : NQV-25-99 02:19 PM P.0Z 6 Moreover, Ms. Roosen was of the view that attendance at the meeting was "optional" insofar as its purpose was designed to allay the a!ooeties of the employees who had requested Mr. Comeil's input. Ms. Roosen clarified what she meant by indicating that she fully expected employees to attend the meeting unless they had work related commitments that raised a conflict. In her own mind the employees' concerns "had to be discussed" in Mr. Cornell's presence. Ms. Roosen, however, treated as insuborindate Ms. McSheffrey's stated intention to make an overtime claim despite her concerns that no authorization was extended prior to the meeting. Indeed, Ms. Roosen had persuaded the two rehab employees who accompanied Ms. McSheffrey to Pembroke to withdraw their overtime claims because in accordance with established procedure no written request had been submitted to her that resulted in "preauthorized"leave to work the overtime. Although the occasions are infrequent thefl~ have occurred instances when overtime at the employer's work place is authorized "after the fact". It would appear that Ms. McSheffrey's claim is the flTst occasion that an overtime dispute has flowered into a grievance. The Association conceded that Ms. McSheffrey's overtime grievance was one (1) day in excess of the mandatory fourteen calendar day time limit for filing a grievance under Articles 6.01 and 6.03 of the collective agreement. The delay was attributable to the problematic nature of the employer's internal mail service used by Ms. McSheffrey to send her grievance from Renfrew to Pembroke. It was further acknowledged having regard to its unreliability that Ms. McSheffrey was imprudent in using that service where other more suitable means were available (for example, facsimile machine) to make a NOV-2S-99 02:20 PM P.03 7 timely delivery. Nonetheless, the Association has invoked Section 44(6) ofthe Labour Relations Act to request my leave for an extension of the mandatory time limit. The employer has opposed the Association's request invoking the decision of Arbitrator Burkett in Re PeterborouEh Civic Hosoital and ONA (1985) 22 LAC (3d) 151, , for the proposition that in balancing the interests between employer and trade union, particularly in having regard to the trivial nature of the grievor's overtime claim ($39.00), that the mandatory time limits should be sustained. In reviewing these facts I am nonetheless convinced that in exercising my discretion under the Labour Relations Act to elC.tend the time limit on the terms to be described that a useful collective bargaining purpose will best serve both parties should I decide the merits of this grievance dispute. In so doing, I am mindful that the issue raised in this grievance is ostensibly an overtime issue. Nonetheless, other more substantive concerns to the parties' relationship have been raised in the course of the evidence that might be resolved by my deciding the main issue. Of course, the one result that might seemingly be prejudicial to the employer should the time limit be elC.tended and the overtime claim succeed will be removed. And that is Ms. McSheffrey will not receive payment of the $39.00 even though her claim might have merit. As indicated earlier in this decision, that portion of the meeting on February 23r<l, 1998 between 8:00 am and 8:30 am, occurred outside regularly scheduled hours and involved the discussion of significant and grave work related matters that were of concern both to :management and the affected employees. Although the employees requested at the end of the first meeting an opportunity to meet with Mr. Corneil so that NOV-25-99 02:20 PM P~04 s he might answer their questions, they did not request that the "follow up" meeting be scheduled outside of regularly scheduled hours. Moreover, there was nothing optional or voluntary about the employees' att~dance at the meeting. What appeared to emerge from the evidence was that in the event of a conflict caused by II prior commitment to a patient, the employee would be excused from attending. But given the extraordinary measures that were taken to accommodate their urgent appeal to meet with Mr. Cornell it would have been a reasonable expectation that everyone affected by the closure would attend. Indeed, the significance of the meeting may be discerned from Mr. Corneil's impression that a third meeting was warranted. And so, there was nothing gratuitous from the employer's perspective about its arranging for part of the meeting during the offhour period in order both to accommodate and to ensure the attendance of all interested employees. While it is true to say that overtime was not scheduled in the ordinary course by Ms. Roosen's preauthorlzed direction after the receipt of a written request, there is nothing contained in the collective agreement that mandates this practice. This is not a case where an employee unilaterally decided to work extra hours where there is absent any mandate on the employer's part to do so. Rather in the current situation there occurred an honest difference of opinion as to whether the impugned half hour could be treated as overtime and/or flex time. Ms. McSheffrey was not seeking to demean or diminish the stature of Ms. Roosen in advancing her argument in a definitive and firm manner. And therefore Ms. Roosen's impression that the grievor was acting in an insubordinate manner in filing an overtime claim without her prior authorization was simply ill founded. Ms. McSheffrey was merely joining issue on their difference of NOV-2S-99 02:21 PM P.05 9 opinion so that the dispute could be carried forward. In any event, there is nothing contrary to the collective agreement, having regard to the tight timeftame in which these events unfolded (ie., between the February 19th posting and February 23, 1998, meeting) that would have prevented the employer, in an appropriate case, from authorizing the , overtime payment "after the fact" . Although it is recognized that management, particularly Ms. Roosen, was at~emptillg in good faith to acccmmodate the three affected rehabilitation employees under her supervision to attend both meetings on February 23, 1998, the employer must accept the proposition that unless the collective agreement otherwise provides to the contrary the scheduling of work related activities during non regularly SCheduled hours will normally attract the premium rates of pay that are relevant to working overtime (see: Re' Steinberl! Inc. and mew. Local 486 (1985) 20 LAC (3d) 289 (Foisy)). Moreover, the appropriate approach in resolving these types of disputes is in discussion with the bargaining representative either through negotiation of a settlement or by recourse to the grievance and arbitration procedure. It is a highly dubious practice for management while in the midst of a serious debate on the very legitimacy of a collective agreement issue to approach employees directly to dissuade them against their union's best advice from advancing their overtime claims. As a result, as indicated, unless there is something to the contrary contained in the collective agreement, the employer in scheduling that portion of the meeting during off hours on the morning ofPebruary 23, 1998, in effect "authorized" the payment of overtime for those who attended. NOV-25-99 02:21 PM P.06 10 In the above regard. the employer argued that the parties' memorandum relatirig to "flex time" permitted the employer to unilaterally transform what would otherwise be overtime hours to "flex time" at straight time rates. In my view, there is nothing c~ntained in the memorandum that supports that argument. What the provision clearly permits (and to this extent it differs from the antecedent memorandum) is for the employer to unilaterally "propose" flex time as a scheduling option to work hours that otherwise would attract premium pay. Thus, a request for "flex time" is not restricted to an employee driven "written" request. It may be "proposed" by the employer and in collaboration with the Association may be implemented ad hoc where the mutual interests of all affected parties are served. To hold otherwise would permit the employer unilaterally to ''tromp'' not only overtime but other relevant provisions of the collective agreement that govern the scheduling of hours and the premiums payable in prescribed circumstances. The uncontradicted evidence suggested that the employer had no intention to impose "flex time" without the approval of the Association and its employees. It assumed in light of the perceived "urgency" for a follow up meeting and its pona fide effort to accommodate its employees' conflict that the mere posting of the schedule for the meeting with the accompanying proposal to treat the off hour portion as "flex time" would be met with approval. But there was absent any evidence of a practice that would indicate that a posting proposing flex time even if perceived to be of benefit to the affected employees constituted employee consent unless otherwise "questioned". .And this very notion would suggest why Ms. McSheffrey in her capacity as the Association's : NOV-23-99 02:21 PM P.07 11 staff representative had to assume an aggressive posture with respect to the protection and preservation of the bargaining unit employees' entitlements to overtime. The initial waiver of a premium entitlement under the collective agreement is the first step along "a slippery slope" to the creation of a practice. And should a practice , eventually establish itself after several "demurers" then it would be open for the employer to argue "injurious reliance" should an employee assertion later be advanced upholding the entitlement. In other words, a legitimate overtime entitlement might in future cases be lost through the raising of an estoppel. And for that reason the employer was duty bound to approach the Association's representatives in a timely manner in order to secure its express approval of its proposal for flex time preferably on a "non prejudice" basis. Failure to secure such approval would have warranted the employer's deferral of the meeting to a time when unnecessary expense could have been avoided. Indeed, Ms. McSheffrey did lodge a defmitive protest questioning the employer's unilateral scheduling of overtime as "flex time". Although it was clearly unfortunate that after her telephone call Ms. McSheffrey did not contact another management representative to express her concern, it was equally unfortunate that Ms. Roosen did not check her voice mail on the Friday afternoon so that the meeting could have been cancelled. But of greater significance was the employer's mistake in assuming that the mere posting ora unilateral proposal for "flex time" would automaticaUy signal the Association's approval where none was forthcoming. For all of the foregoing reasons, a declaration will follow indicating that that portion of the meeting scheduled for February 23,1998, between the hours of8:00 am NOV-2S-99 02:22 PM p.0a 12 and 8:30 am constituted "authorized" overtime that should have attracted payment of the appropriate premium. There will be no direction ordering compensation. I shall remain seized in any event. , \~ Dated this \ day of December, 1998. David ates Arbitration Senrices Inc. :