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HomeMy WebLinkAbout2020-1597.Sheppard.21-03-10 DecisionCrown 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# 2020-1597 UNION# 2020-0727-0005 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Sheppard) Union - and - The Crown in Right of Ontario (Ministry of Natural Resources and Forestry) Employer BEFORE Brian McLean Arbitrator FOR THE UNION Alex Zamfir Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Carly Jones Treasury Board Secretariat Employee Relations Advisor HEARING March 1, 2021 -2- DECISION [1] This is a grievance referred to me under Article 22.16 of the collective agreement between the parties. The hearing of this matter took place on March 1, 2021. Article 22.16 provides that “the mediator/arbitrator shall give a succinct decision within five (5) days after completing proceedings”. This is that decision. Moreover, pursuant to Article 22.16.7 of the collective agreement, this decision shall have no precedential value because the parties did not agree that it should have precedential value. The Facts [2] The Grievor is a long service employee in the public service. He is employed in Dryden as a pilot flying CL415 water bombers used in fire suppression. The Grievor is actively at work primarily for the fire season which is from April to October. However, he is paid under a compressed work year which results in him being paid bi-weekly during the whole year. Under a Memorandum of Agreement dated April 4, 2004 (the MOA”), which applies to CL415 pilots including the Grievor, the compressed work year consists of the following: • The hours of work correspond to a 36.25-hour week, which averaged over a 12-month period equals 1885 hours (the annual work requirement). • The averaging period corresponds to the fiscal year (April 1 to March 31). • CL-415 pilots work 10 consecutive days and receive 4 consecutive days off for a period of approximately 30 consecutive weeks during the fire season (April 1 to approximately October 31). • During the fire season (April 1 to approximately October 31) CL-415 pilots are paid for a minimum of 12 hours of work per day. • During the off-season (approximately November 1 to March 31) CL-415 pilots are paid for 7.25 hours of work per day. • If the annual work requirement, less remaining vacation and off-season statutory holidays credits, are not accumulated by the end of the fire season (by approximately October 31), the employee must work as directed by management until the annual work requirement is accumulated. -3- [3] Prior to and at the start of the fire season, in March and April, CL415 pilots employed by the Government are obliged to engage in certain training to ensure they remain capable of flying to the required standard. The training includes a classroom refresher course, simulator training, and a flight in the company of a Transport Canada certified pilot. Some of the Employer’s pilots are certified by Transport Canada and certify the Employer’s other pilots. While the Grievor has been certified by Transport Canada he has not been selected for that role by the Employer. The training flights may occur during the fire season. [4] In the Spring of 2019, the Grievor requested and was, in August, granted a two- year leave of absence. The purpose of the leave was for the Grievor to go to work as a pilot for an agency in the United States. I understand that such leave requests are relatively common because pilots can make good money doing such work and it may give them flying hours on different aircraft. In any event, the specific reasons for the Grievor’s request are not before me and are irrelevant. [5] The leave was to commence in March 2020 and was to be for two fire seasons. In March 2020, the Grievor conducted most of his annual training with the Employer prior to leaving for the United States. The one piece of training remaining was the live flight with the Transport Canada certified instructor pilot. [6] The Grievor went to the United States and commenced work there. The Grievor was asked why he left despite the emerging COVID-19 situation and he answered that he did not anticipate how bad it was going to get. This seems entirely understandable. [7] The Grievor’s position in Dryden was filled by the Employer. A new pilot had to be trained at some considerable cost to the Employer. The Union notes that these costs are largely offset by the fact that the new pilot would be earning substantially less than the Grievor even considering that a copilot was promoted to pilot (Captain). -4- [8] The COVID-19 situation in the United States began to worsen over the summer of 2020. The Grievor’s spouse was concerned that he might fall ill in the United States; the Grievor’s family remained in Canada. In early July, the Grievor quit his employment in the United States and drove home to Canada. The Grievor called his manager, Harry Weigelt, and asked to cancel his leave of absence and be permitted to return to work immediately. Mr. Weigelt asked the Grievor to put his request in writing and he did so. [9] On July 28, the Employer advised the Grievor that it would not permit him to return to work at that time. However, it would permit him to end his leave of absence one year early so that he could work for the 2021 fire season. Both parties anticipate that this will occur. The Employer explained its reasoning to the Grievor as follows: After careful consideration, Aviation Services is not in a position to return you to your CL415 Captain position at this time. To accommodate your leave of absence request, Aviation Services filled your position to meet our program needs and requirements for the 2020 operating season. In addition, if you were to return at this time it would not be feasible for you to fulfil the terms and conditions of the CL415 Memorandum of Understanding between OPSEU and the Employer. For instance, there would not be enough meaningful work for you to perform to meet the annual hours requirements under the compressed work year arrangement. Operationally, the earliest Aviation Services would be able to bring you back to your position of CL-415 Captain is 2021 when ground school is scheduled to commence. We look forward to your return in 2021. Harry, Chris Wiwchar or I will be in touch with you regarding the timelines for your return prior to the next operating season. Feel free to contact us for any further discussion or questions. [10] Following the Employer’s decision, the Grievor had discussions with Mr. Weigelt in which he suggested other positions he might be able to work in. These included acting as a copilot in the CL415, flying other aircraft like the Turbo Beaver and the Twin Otter, working as a simulator trainer and conducting the Transport Canada certification flights for other pilots. These options were rejected by the Employer. Mr. Weigelt testified that the Employer did not need additional trainers and there were no pilot vacancies among its other aircraft. -5- Decision [11] The Leave of Absence provision in the collective agreement states in relevant part: ARTICLE 24 – LEAVE WITHOUT PAY (FXT, SE, FPT, RPT) 24.1 An employee may request a leave of absence without pay and without accumulation of credits. A Deputy Minister shall not unreasonably deny such requests. [12] The jurisprudence of the Grievance Settlement Board is that the Union is not permitted to grieve a decision of management on a stand-alone basis. A proper grievance about a management’s exercise of discretion must be grounded in a violation of some provisions of the collective agreement or at least be alleged to undermine some rights provided by the collective agreement. Here I note that Article 24 contains no language about ending a leave of absence early and the Union’s suggestion that it does implicitly seems a stretch. Even if I am wrong about that, the Union’s case faces significant challenges. [13] The Union argues that in failing to return the Grievor to work from his leave of absence the Employer did not exercise its management right reasonably in that it considered an irrelevant factor – the Memorandum of Agreement dated April 1, 2004. It asserts that the Employer could have overcome any obstacle that the MOA created by treating the Leave as hours worked and by offsetting the hours during the none fire season times. In other words, the Grievor could have worked half of the fire season had been allowed back at the beginning of July and the Employer could have ensured he got paid for half of the year to compensate. [14] While I agree that the Employer could have been more creative in how it treated the MOA that does not mean that the effect of the MOA was not a relevant factor. The requirement in the MOA is binding. The MOA provides for what happens if a -6- pilot does not work the required hours during the fire season- that pilot will be assigned work in the off-season- and there was no practical way for that to be done in this case given the number of hours the Grievor short of 1885 hours worked the Grievor would have been. There was no guarantee that requirement could be worked around and that was a relevant factor. [15] More importantly, that was not the only reason and was not the main reason for the Employer’s decision. The problem was that there was no vacancy for the Grievor to return to. His position had been filled and had the co-pilot, who had been hired as a replacement in early 2020, been terminated, the Employer would have been obligated to pay him 16 weeks’ pay, which was essentially the time left in the fire season. In other words, the Employer would have been double paying for one pilot position for that period. [16] Similarly, none of the positions which the Union says could have been provided to the Grievor were vacant. The Employer already had trainers and did not require more. There were no vacancies in other aircraft, in part because the COVID-19 situation had reduced the number of flights made by those aircraft. [17] In my view, accordingly, the Employer acted reasonably when it decided not to create work for the Grievor, or double pay for work in order to permit the Grievor to return from his leave of absence. The fact that the Employer could have been more creative in how it viewed and considered the MOA requirements does not change that fact. There was simply no available work for the Grievor to return to. [18] I have considerable sympathy for the Grievor. He was put in a precarious position through little fault of his own. However, when an employee takes a leave of absence for a specific period, in the absence of language in the collective agreement to address an early return, that employee runs the risk that the Employer will have made alternate plans to cover the absence and will reasonably not be able to accommodate an early return. That is what happened here. -7- [19] For these reasons, the Grievance is dismissed. Dated at Toronto, Ontario this 10th day of March, 2021. “Brian McLean” ______________________ Brian McLean, Arbitrator