HomeMy WebLinkAboutBoudreau/Union 21-04-191
IN THE MATTER OF AN ARBITRATION BETWEEN:
MANITOULIN -SUDBURY DISTRICT SERVICES BOARD
(the “Employer”)
and
ONTARIO PUBLIC SERVICE EMPLOYEES’ UNION, LOCAL 679
(the “Union”)
AND IN THE MATTER OF THE GRIEVANCE OF J. BOUDREAU AND A UNION
POLICY GRIEVANCE - OPSEU # 2020-0679-0002 and OPSEU # 2020-0679-0003
Louisa M. Davie - Sole Arbitrator
For the Union: Dan Hales
For the Employer: Mark Mason
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AWARD
This award deals with the individual grievance of Justin Boudreau ("the grie vor") and a
policy grievance filed by Ontario Public Service Employees’ Union, Local 679 ("the
Union"). Both grievances were filed February 2, 2020.
Each grievance alleges that Manitoulin – Sudbury District Services Board ("the
Employer") is in violation of the collective agreement and the Employment Standards
Act S.O. 2000, c. 41 ("ESA") because of the scheduling practices it applies when part -
time employees call in sick for one of their scheduled shifts.
Specifically, the issue raised by the grievances is that the Employer does not place on
the call-in list (so that they are available to be assigned any unscheduled shifts) part-
time employees who have been scheduled to their maximum hours when such part-time
employee does not work one of their scheduled shifts because of illness. Stated
somewhat differently, the Employer does not enable part-time employees who have
been scheduled to work their maximum hours, but who call in sick on one of their
scheduled shifts, to work call-in shifts to "make up" the scheduled hours lost to illness.
These grievances were heard via Zoom videoconference on March 29, 2021. The
parties did not raise any issues with respect to my jurisdiction to hear and determine the
matters in dispute. They filed the following Agreed Statement of Facts and made oral
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submissions having regard to those facts, the terms of their collective agreement, and
section 74 (1) (a) of the ESA.
AGREED STATEMENT OF FACTS
1. The Employer, Manitoulin-Sudbury District Services Board and OPSEU are
parties to a collective agreement effective January 1, 2016 to December 31,
2019.
2. Prior to October 15th of each year, part-time employees are required to submit
their availability in accordance with Appendix B, article 5.01, for the following
calendar year.
3. Based on the submitted availability, the Employer will populate the schedule for
the following year based on the full-time vacation requests.
4. Part-time employees and casual employees will be scheduled up to their
maximum hours per pay period (casuals 36 and part-time 84) based on their
submitted availability in order of seniority in accordance with the collective
agreement.
5. After the schedule is populated, part-time employees can change their remaining
availability as they see fit up until five (5) days before the scheduled shift.
6. There is no guarantee of hours for part-time employees under the collective
agreement.
7. Prior to March 2019, if a part-time employee who was scheduled 84 hours called
in sick, the payroll system would allow the employee remain on the call-in list
whereby they would be eligible to accept another available shif t to return to 84
hours scheduled hours of work.
8. In March 2019 this practice was changed. Since that time, part-time employees
who do not work a scheduled shift because of illness (or any other reason) are
not permitted to return to the call-in list to be available for unscheduled shifts as
their schedule is not changed and they would therefore be scheduled for more
than 84 hours if any additional shift is added.
9. In short, the Employer counts sick time, like all time off requests for part-time
employees (vacation, union leave, etc) as time scheduled for the purpose of
determining part-time employees’ eligibility for open shifts within a pay period.
10. As examples:
(a) Part-time employee is scheduled 84 hours and calls in sick for a shift –
they are not returned to the call-in list and are not eligible to pick up an
additional shift;
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(b) Part-time employee is scheduled 84 hours and calls in sick for 2 shifts –
they are not returned to the call-in list and are not eligible to pick up any
additional shifts;
(c) Part-time employee is scheduled 72 hours and calls in sick for 1 shift –
they are eligible to pick up 1 shift within the pay period as they have only
been scheduled for 72 hours in total
11. Where full-time employees cancel amend their vacation schedule with more than
30 days notice, they are assigned their regular shift and the part-time employee
previously scheduled is removed from the schedule and thus eligible to pick up
an additional shift in that pay period.
12. In accordance with Article 1.07, part-time employees are paid 14% of their
regular straight time hourly rate for all straight time hours paid in lieu of fringe
benefits. Fringe benefits are defined as those benefits paid in whole or in part by
an employer as part of direct compensation or otherwise, including holiday pay
but excluding salary, vacation pay, call back pay, reporting pay, jury and witness
duty, and bereavement pay. For regular part-time employees who qualify and are
enrolled in OMERS, the pay-in-lieu percentage will be reduced to eight (8%)
percent.
13. The Union filed a policy grievance…dated February 2, 2020 alleging a violation
of articles 6.02 and 6.03 in Appendix B and the Employment Standards Act,
section 74.
14. The Union filed a grievance on behalf of Justin Boudreau …dated February 2,
2020 alleging the same violations, pertaining to the pay period of December 29,
2019 to January 11, 2020. The Grievor is a part-time employee who was
scheduled to work 84 hours in that pay period. The Grievor called in sick on
December 30, 2020 and his schedule was not revised to allow him to be
assigned to any subsequent available shifts.
The relevant collective agreement provisions are as follows.
ARTICLE 1 - SCOPE AND RECOGNITION
1.03 Part- time Employee
Any employee that is not full- time. This includes casual, regular and rotational
part-time.
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1.04 Casual Employee
A part-time employee that is required to provide a minimum availability for work,
and have their amount of scheduled shifts capped, in accordance with the terms
of Appendix B.
1.05 Regular Part- time Employee
A part-time employee that is required to provide a minimum availability for work,
in accordance with the terms of Appendix B.
1.06 Rotational Part- time Employee
A rotational part- time employee shall mean those employees who are successf ul
applicants on a position that provides for a regular repeating schedule on a
weekly or bi- weekly basis of up to twenty- four (24) hours per week. It is
understood that rotational part- time employees may work in excess of twenty-
four (24) hours per week. For the purpose of scheduling beyond their regular
repeating schedule, rotational part-time employees shall declare themselves as
casual part- time or regular part- time for the purposes of Appendix B.
ARTICLE 3 - MANAGEMENT RIGHTS
3. 01 The Union recognizes and acknowledges that the DSB is the employer
responsible for the management and direction of the work force and shall retain
all other residual management rights without limitation except as otherwise
specifically limited in this agreement.
3.02 Without limiting the generality of the foregoing, management's rights
include:
a) The right to direct the workforce;
b) The right to plan, direct, manage and co- ordinate the operation of the
Ambulance Service;
…
d) The right to determine work schedules, work assignments and methods
of doing work;
…
j) The right to operate the Ambulance Service so as to provide appropriate
emergency health care in a manner consistent with the obligations of the
Employer to the Ministry of Health and the general public
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ARTICLE 10 - SENIORITY
10. 01 Seniority, as referred to in this Agreement, shall mean the length of
continuous service with the Employer for full- time employees and shall mean
hours worked for the Employer for part-time employees. The application of
seniority shall be used for: layoffs, recall from layoff, job postings, transfers,
vacation entitlement, scheduling, wage progression and severance pay
entitlements.
10. 06 Seniority for full-time employees, when not actually at work for the
Employer, shall be accumulated in the following circumstances only:
…
b) when off work due to sickness or accident;
APPENDIX " B" LETTER OF UNDERSTANDING BETWEEN
Manitoulin -Sudbury DSB
AND
OPSEU, LOCAL 679
Re: Shift Assignments
ARTICLE 1 - DEFINITIONS:
1.01 Availability:
The process of inputting notations on the approved scheduling format indicating
whether the employee would consider a call for work on any given day (for this
purpose, a day of availability is defined by a period from 0700 hours to 0800
hours on the following day). Employees must indicate their availability for days of
work within their Service Area except for those in the Service Wide Group, who
will identify their availability for days service wide). The Employer will consider
seniority in assigning shifts in accordance with this agreement.
1.02 Available Shift:
An eight (8), ten (10), or twelve (12) hour shift with all associated on- call hours,
to which no one has been assigned.
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ARTICLE 5 - PART- TIME AVAILABILITY AND COMMITMENT:
5. 01 All part-time employees (casual, regular and rotational) will be required to
identify their availability for work by 23: 59 hrs on October 15, for the following
calendar year. Should it not be submitted by this date, the Employer may exclude
the Employee from receiving shifts through advanced scheduling.
ARTICLE 6 - SCHEDULING AVAILABLE SHIFTS FOR PART- TIME
EMPLOYEES
6. 01 Part-time staff will be scheduled into available shifts. The objective is to
schedule Part-time employees as far in advance as possible.
6. 02 Long-term Scheduling (Call in for Shifts Over 5 days):
The following shall apply when considering filling shifts during the Long-term
Scheduling period (shifts that are commencing greater than 5 days in the future,
with the current day being considered as day 1). Shifts will be assigned on the
following basis, subject to employee availability at the time of assignment:
1. Part-time and eligible casual employees within the shift' s service area in order
of seniority
2. Part-time and eligible casual employees belonging to the Service Wide Group
in order of least recently been assigned a shift, to most recently been assigned a
shift
3. Part- time and eligible casual employees outside the shift's service area and
who are not on the Service Wide Group, in order of seniority
6. 03 Short-term Scheduling (Call in for Shifts 5 days and less):
Shifts starting within 5 days and less (with the cu rrent day being considered as
day 1) and all overtime shifts require contact with and acceptance by the
employee via telephone or confirmed e- mail, or text message. Phone calls for
shifts will be limited to a single contact number. It is the employee' s r esponsibility
to ensure that the Employer has the up to date contact number or email. They
are also responsible for indicating what their preferred method of contact will be
(telephone, text or email) annually by October 15.
Such available shifts shall be given for acceptance and assigned on the following
basis, subject to employee availability at the time of assignment:
1. Part-time and casual employees within the shift's service area in order of least
recently been offered a shift, to most recently offered a shift
2. Part-time and casual employees belonging to the Service Wide Group in order
of least recently been offered a shift, to most recently been offered a shift
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3. Part-time and casual employees outside the shift's service area and who are
not on the Service Wide List, in order of least recently been offered a shift, to
most recently been offered a shift Uncontrolled
When scheduling available shifts during regular office hours, short of Emergency
shift scheduling, employees will be given a minimum of 10 minutes wait time to
return and accept or decline the shift before the person scheduling the shift
moves on to the next available employee. A minimum of 1 message will be left
on the contact number or email on file stating the time of call.
ARTICLE 7- REQUESTS FOR TIME OFF
7. 01 Once shifts are assigned to individuals, it will be their responsibility, short of
illness or compassionate grounds, to report to work or find an appropriately
qualified replacement in accordance with the shift exchange procedure identified
below.
7. 05 Any employee requesting to cancel their approved time off must do so in a
timely fashion. To minimize the disruption to the part-time employees who have
been scheduled as replacement, employees wishing to cancel their time off must
provide a minimum notice of 30 days prior to requested day off to the Deputy
Chief or designate in writing. It is understood that the part- time employee' s
cancelled shift shall not be the subject of a grievance. The parttime employee will
be rescheduled where possible according to the scheduling provisions.
In addition, the Union asserts the Employer’s scheduling practice as if affects part-time
employees unable to work their scheduled shift due to illness violates section 74 (1) (a)
(viii) of the ESA. That section prohibits reprisals against employees who seek a
statutorily protected leave such as sick leave and states:
Reprisal prohibited
74 (1) No employer or person acting on behalf of an employer shall intimidate,
dismiss or otherwise penalize an employee or threaten to do so,
(a) because the employee,
…
(viii) is or will become eligible to take a leave, intends to take a leave or takes a
leave under Part XIV; …
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The Employment Standards Act Issue
I find it convenient to first address the assertion by the Union that the Employer has
violated the ESA.
The Union noted that a part-time employee’s sick leave is without pay. In addition, and
unlike full-time employees who continue to accrue seniority when off work due to
sickness (see Article 10.06), part-time employees only accrue seniority for hours worked
(see Article 10.01). The Union relied upon Tung -Sol of Canada and U. E. Local 512
(1964) 15 L.A.C. 161 (Reville), to emphasize the importance of seniority, particularly in
this bargaining unit where access to a full-time position is heavily dependent on the
seniority hours of the part-time employee. As a result, the Union argued that the
Employer was punishing or penalizing an employee who had taken sick leave when it
failed to assign the employee to a call-in shift so that the employee could recoup not
only the wages lost due to illness, but also the seniority hours lost. In this manner the
Employer violated section 74 of the ESA.
I do not accept the Union's submissions that the Employer's conduct or policy
constitutes a reprisal under the ESA.
Pursuant to the sick leave provisions of the ESA (section 50) an employee is entitled
annually to three days of unpaid leave because of personal illness, injury or medical
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emergency. The ESA leave provisions do not address whether employees should
continue to accrue seniority while exercising their right to a statutorily protected leave. In
my view, in the circumstances of this case, neither the fact that the part-time employee
does not accrue seniority when they do not work their scheduled shift due to illness, nor
the fact that the part-time employee’s sick leave is unpaid, constitutes a reprisal or a
penalty because the employee "… takes a leave under part XIV". The Employer is not
penalizing the part-time employee who has called in sick by not paying their wages or
by not permitting them to accrue seniority for hours not worked. The Employer is
merely following the provisions of the collective agreement which provide that wages
and seniority are earned when hours are worked.
In this case, whether the Employer's scheduling practices which do not permit or enable
the part-time employee who calls in sick for one of their scheduled shifts to pick up an
unscheduled call-in shift during the remainder of the pay period constitutes a reprisal is
inextricably tied to the interpretation of the collective agreement. Whether the Employer
is penalizing or punishing the part-time employee who calls in sick by “limiting the
number of hours they can work and accrue seniority” by denying them an opportunity to
work a call-in shift is a question which can only be answered by examining the collective
agreement provisions as they relate to the Employer’s rights and obligations to schedule
and assign, and the employee’s rights with respect to available work. It is not a penalty
if the employee is not entitled to be scheduled to the call-in shift in the first place.
Similarly, if the Employer's conduct and scheduling practices adhere to the agreement
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of the parties and does not violate the scheduling provisions of the collective agreement
it is difficult to see how that can be said to be a reprisal under the ESA.
The Submissions of the Parties Regarding the Interpretation of the Collective
Agreement
I turn therefore to interpret and apply the collective agreement. In so doing I note at the
outset that the issue before me must be decided solely on the language of the c ollective
agreement as neither party relied upon extrinsic evidence either as an aid to
interpretation or to establish an estoppel.
The Union submitted that there was nothing in the language of the collective agreement
which permitted the Employer to remove from the call-in list employees who had not
worked 84 hours in the pay period. It was asserted that the effect of the Employer's
practice was to equate hours "scheduled" with hours "worked". The language of the
collective agreement did not support that approach. Hours worked were not the same
as hours scheduled.
Relying upon the importance of seniority as set out in Tung Sol supra the Union
maintained that denying employees who had not yet worked 84 hours the opportunity to
work their maximum number of hours by removing them from the call-in list was a
significant detriment as seniority for part-time employees was based on hours worked.
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The Union conceded that the collective agreement did not provide a guaranteed number
of hours to part-time employees. However, it was asserted that the collective agreement
did afford employees some protection in the scheduling provisions which indicated that
the Employer "will consider seniority in assigning shifts" and which, through the call-in
scheduling language of Appendix B provides employees with the opportunity to pick up
additional shifts. The terms of Appendix B did not permit the Employer to remove part-
time employees from that call-in list merely because the part-time employee had been
scheduled for 84 hours.
The Employer submitted that its scheduling practices did not violate the collective
agreement. Consistent with its Management Rights to schedule and assign (Article 3)
and Article 5.01 of Appendix B, the Employer determines the work schedules of its full-
time and part-time employees having regard to the seniority and availability of part-time
employees. Part-time employees must identify their availability prior to October 15th of
each year. When determining the schedule, the Employer schedules the part-time
employees into "available shifts" according to seniority and can schedule a part-time
employee up to 84 hours per pay period. As noted in Article 6.01 of Appendix B the
objective is to schedule part-time employees as far in advance as possible. Where
possible the Employer schedules part-time employees to the maximum number of hours
to which they are entitled. There is no suggestion in the evidence or in the submissions
of the parties that the Employer is in violation of the collective agreement when, at the
outset, following the October 15th date, it schedules part-time employees having regard
to seniority.
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It is the Employer's position that having properly scheduled part-time employees at the
outset the part-time employee who has been scheduled to their maximum number of
hours is not entitled to further consideration for additional shifts. That is because the
collective agreement does not provide part-time employees with a guaranteed 84 hours
of work. The only "guarantee" part-time employees have is that when the schedule is
established, they may be scheduled up to 84 hours (having regard to seniority). The
collective agreement does not guarantee that part-time employees will work 84 hours.
Articles 6.02 and 6.03 of Appendix B do not provide a "make up" opportunity for part-
time employees who have been properly scheduled to their maximum number of hours
just because the employee was unable to work one of their scheduled shifts. That is so
regardless of the reason the employee was unable to work their scheduled shift. The
reason for the absence and inability to work a scheduled shift is immaterial. For
example, the Employer does not treat the part-time employee’s absence from the
scheduled shift due to illness any differently than it treats the part-time employee’s
absence due to vacation. Once the schedule has been determined and the part-time
employee has been scheduled to their maximum number of hours, there is not an
ongoing obligation on the Employer to schedule or assign part-time employee shifts just
because the part-time employee was unable to work one of their scheduled shifts.
The Employer submitted that part-time employees who have been scheduled their
maximum number of hours are no longer "available" for unassigned shifts as required
by Articles 6.02 and 6.03 of Appendix B. Having been scheduled to their maximum
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number of hours the part-time employee’s availability does not change merely because
they were unable to work one of their scheduled shifts.
The Employer referenced Article 7.01 of Appendix B and noted that it did not
contemplate that employees unable to work an assigned shift would become eligible or
"available" for other shifts during that pay period. Article 7.01 addresses what happens if
an employee can't work a shift and that article is noticeably silent on the accrual of
seniority or payment of wages for shifts not worked.
Similarly, in Article 7.05 the parties have specifically contemplated those circumstances
in which a part-time employee will be rescheduled because they could not work a
scheduled shift. In Article 7.05 the parties have indicated that where a part-time
employee’s shift is canceled and they are unable to work a previously scheduled shift
because another employee has canceled their time off, the part -time employee whose
shift was canceled may be rescheduled. Again, that article is conspicuously silent in
extending the same opportunity to be rescheduled to part -time employees whose
scheduled shift was canceled or not worked by the part-time employee because of
illness.
In support of these submissions the Employer referred to Sobey's Ontario Limited and
UFCW, Local 175 [1999] 55 C. L. A. S. 444 (Newman) and Sysco Central Ontario
Inc. and Teamsters, Local 419 (2013) 232 L. A. C. (4th) 326 (Davie). These cases are
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not directly on point but were cited as being analogous. Sobey's Ontario was cited to
support the proposition that clear and explicit language was required to confer the type
of benefit which the Union seeks in this case i.e. that part-time employees be assigned
to work an alternative shift when unable to work one of their scheduled shifts due to
illness. Sysco Central Ontario was similarly relied upon to assert that this collective
agreement did not contain clear, unequivocal and express language that would enable
an arbitrator to draw the conclusion that there was a guarantee of hours for part-time
employees or that part-time employees were entitled to be scheduled to alternative
shifts if unable to work a scheduled shift due to illness.
Decision
Notwithstanding the brevity with which I have set out the able submissions of the
parties, it is apparent that the parties have polar opposite views about the appropriate
interpretation of the scheduling language applicable to the determination of these
grievances.
The language of the collective agreement is far from clear and unequivocal. Indeed , it
can be used to support the position of either party and to answer in their favour the
question each party posed in making their submissions. The Union’s submissions
answer in the negative its question as to whether there is anything in the language of
this collective agreement which precludes part-time employees who have not worked
their maximum number of hours from being assigned to call-in shifts. Conversely, the
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Employer’s submissions answer in the negative its question as to whether there is
anything in the language of this collective agreement which guarantees part-time
employees 84 hours of work, or which requires the Employer to assign call-in shifts to
those employees who have already been scheduled their maximum hours of work.
In my view however these are not the questions that should be asked or answered. In
examining and interpreting a collective agreement the role of the arbitrator is to
ascertain the intent of the parties, having regard to the language they have used. In this
case the arbitrator’s role is to answer the question what did the contracting parties
intend when they agreed upon the language in Appendix B? That is the question which
frames the issue raised in these grievances.
In determining the intent of the parties, I start with some general observations about the
language of this collective agreement. As I have already indicated the language is far
from clear, precise, or unambiguous.
I do not accept the Employer’s position that part-time employees are not “available” for
call-in shifts merely because they have been scheduled for the maximum number of
hours. I accept the Union’s submissions that hours scheduled are not the same as
hours worked. The Employer basis its submission, in part, on the reference to “subject
to employee availability at the time of the assignment” language found in both Articles
6.02 and 6.03 of Appendix B.
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However, “availability” is used throughout Appendix B and is a defined term in Appendix
B. “Availability” is not defined in terms of hours scheduled but is defined instead in
terms of the employee’s notations indicating which days the employee would consider a
call-in for work. I have therefore concluded that when the parties used “subject to
employee availability” in both Articles 6.02 and 6.03 they intended to ensure that part-
time employees will only be called for call-in shifts on those days on which they have
indicated they are available (by October 15). The “subject to employee availability at
the time of the assignment” language does not in and of itself preclude part-time
employees who have previously been scheduled to their maximum number of hours
from being assigned to call-in shifts.
Second, it is apparent that the parties intended to treat the assignment of call-in shifts
which are scheduled more than 5 days in the future differently than the assignment of
call-in shifts which are scheduled within 5 days. The “rules” applicable to the
assignment of call-in shifts greater than 5 days in the future are different from those call-
in shifts which are assigned within 5 days. For call-in shifts more than 5 days in the
future priority is first based on the seniority of employees in the service area. For call-in
shifts scheduled within 5 days (and call in shifts more than 5 days in the future not filled
on the basis of part-time employees’ seniority within the service area) it is not seniority
of the employees which governs, but which employee was “least recently offered a
shift.” That is a significantly different concept than seniority.
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In terms of Long-Term Scheduling (call-in for shifts over 5 days), according to Article
6.02 (1), the priority to such call-in shifts is first based on employee seniority and the
service area. That is consistent with the more general seniority article of the collective
agreement Article 10) which indicates that “the application of seniority shall be used
for…scheduling…”. It is also consistent with Article 1 of Appendix B which states “The
Employer will consider seniority in assigning shifts in accordance with this agreement.”
There is nothing in the language of Article 6.02 (1) which indicates an intent by the
parties to exclude from consideration for assignment to call-in shifts more than 5 days in
the future any senior part-time employee within the service area. Thus, senior part-time
employees may be assigned the shift provided the assignment of such a shift does not
lead to overtime (see below).
I have deliberately italicized and excluded from the general statement above the
assignment of call-in shifts which would result in an over-time opportunity for the part-
time employee. That is for two reasons. First, and subject to the specifics of a
collective agreement, it is well established in the arbitral jurisp rudence that an employer
need not assign work to be performed on an over-time basis if the work can also be
performed by employees working at straight time or non-overtime rates. Secondly, in
this collective agreement “over-time” call-in shifts are specifically dealt with in Article
6.03 which deals with short-term scheduling “and all overtime shifts”.
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In the result, in assigning long-term call-in shifts (those more than 5 days in the future)
where seniority governs, the Employer must consider the seniority of the employees in
the service area and may consider the hours already worked and those scheduled to be
worked by the employee. Where the hours already worked plus the hours scheduled to
be worked by the senior part-time employee leads to an overtime opportunity for that
employee the Employer may by-pass that senior employee and go to the next employee
in order of seniority. That is so regardless of whether it is the call-in shift which will
create the overtime opportunity, or whether one of the remaining scheduled shifts yet to
be worked by the employee would result in overtime. In determining whether hours
scheduled to be worked would lead to overtime, the Employer is entitled to assume that
the future shifts during the pay period to which the employee has been scheduled will
be worked by the employee. Practically speaking this will mean that employees who are
unable to work their scheduled shift due to illness early in the pay period may be able to
pick up a long-term (greater than 5 days in the future) call-in shift towards the end of the
pay period. As the pay period progresses, and the window of time for a call-in shift
more than 5 days in the future narrows, the opportunity to work the long-term call-in shift
will necessarily decrease.
The language of the collective agreement for short-term scheduling of call-in shifts
differs significantly from that applicable to long-term call-in shifts. Unlike the long-term
scheduling of call-in shifts where priority is first given to a part-time employee’s seniority
within a service area, the short-term scheduling of call-in shifts (those starting within 5
days) is not based on seniority but is based on “most recently been offered a shift”
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principles. The same is true for long-term call-in shifts which can not be filled having
regard to the seniority of part-time employees within the service area (see Article 6.02
(1) and (2)).
The clear intent of Article 6.03 is to extend the opportunity to work short-term call-in
shifts to employees who have not had as many opportunities to work. The intent is that
open shifts available in the short-term should be assigned to those who have not had a
recent opportunity to work. The “least recently been offered a shift, to most recently
been offered a shift” language indicates the parties intended to extend work
opportunities to those who have had the least opportunity to work. Part-time employees
who have been scheduled to their maximum number of hours do not fall within that pool
of potential part-time employee candidates to whom short-term call-in shifts should be
offered. Having been scheduled to their maximum number of hours such part -time
employees have not had the least opportunity to work. They are not the employees
who have “least recently been offered a shift.” Instead, they have been provided with
the most opportunity to work. Part-time employees scheduled to their maximum
number of hours have been “most recently offered a shift”. The fact that they did not
work one of their offered (scheduled) shifts due to illness does not alter their status as
part-time employees who have been “most recently offered a shift.”
This analysis of the collective agreement language addresses the policy grievance.
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Paragraph 14 of the Agreed Statement of Facts relates to the individual grievance of
Justin Boudreau. Consistent with my analysis, as the grievor had been scheduled to
work the maximum number of hours, he need not have been considered for any short-
term call-in shifts during the pay period. However, as the facts indicate he called in sick
for one of his scheduled shifts early in the pay period he may have been eligible for a
long-term call-in shift. The facts do not indicate whether a long-term call-in opportunity
(more than 5 days following the grievor calling in sick for his scheduled shift) was
available, or whether the grievor’s seniority in the service area would have entitled him
to the shift. I remit that issue back to the parties to address having regard to this award.
I will remain seized in the event they experience any issues resolving that matter.
Dated this 19th day of April, 2021
Louisa Davie