HomeMy WebLinkAboutDick (Fobert) 22-08-15
IN THE MATTER OF AN ARBITRATION
BETWEEN:
COMMUNITY LIVING CAMPBELLFORD/BRIGHTON
(the “Employer”)
-AND-
ONTARIO PUBLIC SERVICE EMPLOYEES UNION AND ITS LOCAL 316
(the “Union”)
-AND-
BEVERLY DICK (FOBERT)
(the “Grievor”)
JANICE JOHNSTON - SOLE ARBITRATOR
APPEARANCES:
For the Employer: Geoff Ryans Counsel
Caroline DeBrun Counsel
For the Union: Indika Chandrasekara Counsel
A video conference hearing on this matter was held on May 05, 2022 followed by written
submissions.
AWARD
1. At the hearing on May 5, 2022 the parties agreed to proceed by way of an Agreed
Statement of Facts (the “ASF”) and written submissions. We agreed upon a
timetable for the finalization of the ASF and the filing of the submissions by the
parties. We also agreed that after reviewing these filings I would issue a brief
bottom line decision.
2. The ASF reads as follows:
AGREED STATEMENT OF FACTS
1.Community Living Campbellford/Brighton (hereinafter referred to as
“Employer”) provides support and services to people with intellectual
disabilities and promotes opportunities for personal growth within their
community. The Employer’s core services are located in the
Campbellford/Brighton area, with services offered throughout
Northumberland County.
2.The Ontario Public Service Employees Union (hereinafter referred to as
“Union”) is the sole and exclusive bargaining agent for all employees of
the Employer, save and except Supervisors and persons above the rank
of Supervisor and those excluded, as recognized in Article 1.01 of the
Collective Agreement.
3.The Union and Employer have been involved in a collective bargaining
relationship for many years. The grievance herein arose under the
Collective Agreement with a term running from April 1, 2018 – March 31,
2021. (See Tab 1 of Union’s Book of Documents)
4.The Grievor, Beverly Dick (formerly Fobert; hereinafter referred to as
“Ms. Dick”) was hired by the Employer as a Part Time Outcome Support
Facilitator in or around September of 2017. She secured a Full-Time
position as an Outcome Support Facilitator at the Parkview Residence on
or around March 25, 2019. In her role as a Full Time Outcome Support
Facilitator at the Parkview Residence, Ms. Dick was scheduled to work
one weekend in four.
5.Sometime in the fall of 2019, Ms. Dick made a complaint of resident
abuse against one of her co-workers and a supervisor at the Parkview
residence. As the complaint was being investigated by the Employer, co-
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workers found out that the complaint was made by Ms. Dick. Ms. Dick
started experiencing harassment and intimidation by her co-workers at the
Parkview residence.
6.As a result, Ms. Dick wrote to Leslie Steeves, Director of Human
Resources on or about December 4, 2019, requesting a lateral transfer
out of Parkview (See Tab 3 of Employer’s Book of Documents).
7.Later on December 4, 2019, Leslie Steeves responded to Ms. Dick’s
request for an opportunity to discuss a lateral transfer, and wrote:
I’d be glad to talk to you about this. Do you want to talk on the phone or in
person? In the meantime be sure to apply for the 2 FT postings that are
coming out; #218 & $219. Let me know what works best for you. I’m in all
day tomorrow if you want to give me a shout. (See Tab 4 of the Union’s
Book of Documents)
8.Given that another employee had also requested a lateral transfer at the
time, and there were a number of open full time job postings, the
Employer and Union agreed the best way forward would be for Ms. Dick
and the other employee seeking lateral transfers to apply to advertised
vacant positions. On January 7, 2020, Leslie Steeves wrote to Ms. Dick
advising her to apply to posted positions (See Tab 9 of Employer’s Book
of Documents and Tab 5 of the Union’s Book of Documents).
9.As a result, Ms. Dick applied to four internal job postings in December
2019 and January of 2020. Two of the postings #218 and #219 required
the successful candidate to work every other weekend (See Tabs 5 and 6
of Employer’s Book of Documents). Ms. Dick was not the successful
candidate in any of those four postings/competitions.
10.On or about January 23, 2020, posting #225 went up for a full time
Outcome Support Facilitator at the Employer’s residence located at 55
Centre Street, Campbellford (hereinafter referred to as “55 Centre”).
Posting #225 specified that the hours of work were “inclusive of evenings,
every other weekend & overnights” (See Tab 11 of Employer’s Book of
Documents).
11.Ms. Dick initially did not apply for the position. On February 3, 2020,
before the posting closed, Ms. Dick received a phone call from Dawn Lee.
Ms. Lee is the current Executive Director of Community Living
Campbellford/Brighton. At the time, Ms. Lee was Director of Quality
Enhancement, and was heading the investigation into the allegations of
abuse made by Ms. Dick against a co-worker at Parkview.
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12.The evidence about the phone call is disputed:
a. Ms. Dick’s evidence would have been that Ms. Lee inquired as to
why Ms. Dick had not applied to posting #225. When Ms. Dick
explained that being scheduled to work every other weekend or two
weekends in four did not work with her personal schedule, as Ms.
Dick works another job, Ms. Lee advised Ms. Dick to go ahead and
apply to the position. Ms. Lee said that the schedule could be
changed once Ms. Dick got the position, that what was important
was for Ms. Dick to secure a spot to move into, so she could move
out of Parkview.
b. Ms. Lee’s evidence would have been that she suggested to Ms.
Dick during the phone call that she apply for the position and then
speak to the supervisor during the hiring process to see if any
changes could be made to the scheduling requirements. At the
time, Ms. Lee had no responsibility for or role in making the
schedules for Outcome Support Facilitators. At no time did Ms. Lee
make any promises with respect to the ability for Ms. Dick’s
schedule to be changed, nor would she have had the authority to
unilaterally make such a promise.
13.Following the telephone call, Ms. Dick applied to posting #225 (See
Tab 14 of the Employer’s Book of Documents).
14.At no time during the job competition process for posting #225 did Ms.
Dick raise any concerns about the scheduling requirements. One of the
questions during the interview was:
As per the job posting, this position requires someone who is flexible and
available to work days, evenings, bi-weekly weekends and/or overnights
as required. Why do you think this is a job requirement for the position?
Ms. Dick did not raise any concerns with the schedule in responding to
that question, but rather responded by saying “we need to be flexible in
our schedule to have their (people supported) outcomes and goals be
achievable”. She emphasized in her answer that the goals and outcomes
of the persons the Employer supports “don’t just run on a 9-5 job” (See
Tabs 15-17 of the Employer’s Book of Documents).
15.Further, during the interview, Ms. Dick did not raise any concerns with
the schedule or inquire if the schedule could be changed to one weekend
in four when she was questioned if she had anything else she would like
to tell the interview panel, or given an opportunity to ask questions. (See
Tabs 15-17 of the Employer’s Book of Documents).
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16.Ms. Dick was the successful candidate for posting #225. Ms. Dick
commenced working in her new full-time position as Outcome Support
Facilitator at 55 Centre shortly thereafter. Ms. Dick was scheduled every
other weekend.
17.In or about the spring of 2020, following Covid-19 pandemic related
restrictions and workplace responses, Ms. Dick became part of an
Emergency Response Team of Outcome Support Facilitators who worked
from home and were available to respond to a need in a residence at short
notice, for extended durations, including on weekends.
18.Ms. Dick asserts that on at least three occasions, she requested her
then manager, to change her schedule to one weekend in four. The
Employer has no record of any such requests prior to the request
described below at paragraphs 20-22. At no time did the Grievor raise
these requests with Ms. Lee and/or the Employer’s Human Resources
department.
19.On September 14, 2020, Ms. Dick signed an Employment Status
Change Agreement confirming that she was the successful candidate in
filling the vacancy at 55 Centre Street. The Employment Status Change
Agreement reiterated that “The ability to work flexible hours is a
mandatory requirement inclusive of days, evenings, overnights and every
other weekend according to a schedule determined by your Supervisor”
(See Tab 18 of Employer’s Book of Documents).
20.After the Emergency Response Team ended at the end of 2020 and
Ms. Dick returned to working regularly at 55 Centre, Ms. Dick asked that
her schedule be changed to one weekend in four instead of every other
weekend.
21.After the request was denied, Ms. Dick initiated the complaint stage of
the grievance process as set out in the Collective Agreement.
22.Ms. Dick’s concerns and request was then escalated to Leslie Steeves,
Director of Human Resources, who investigated and confirmed that the
Employer was unwilling to change Ms. Dick’s weekend schedule to one in
four weekends.
23.As a result, the grievance herein (#2021-0316-0001) was filed on
February 14, 2021 and referred to arbitration on February 25, 2021. (See
Tab 1 of the Employer’s Book of Documents). The grievance states:
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I grieve that the Employer is violating Letter of Understanding #8. The
Employer will endeavour to continue weekend scheduling in accordance
with the current practice. As well specifically but not exclusively of the
collective agreement and any other articles that may apply.
24.On February 23, 2021, the Employer denied the Grievance (See Tab 2
of the Employer’s Book of Documents).
25.Letter of Understanding #8 of the Collective Agreement provided as
follows regarding weekend scheduling:
Letter of Understanding #8
BETWEEN:
Community Living Campbellford/Brighton
- and -
Ontario Public Service Employees Union and its Local 316
The Employer will endeavour to continue weekend scheduling in
accordance with the current practice.
26.During the lifetime of the Collective Agreement under which this
grievance was filed, the Employer’s practice when an employee
successfully posts into a vacant position was to require that employee to
perform weekend work in accordance with the requirements in the posting.
For example, if an employee who was previously allowed to work 1
weekend in four applied for a position where every other weekend is a
requirement of the position, and was successful in obtaining that position,
they would be required to work every other weekend in accordance with
the posting (See Tabs 25 to 30 of the Employer’s Book of Documents).
27.During the lifetime of the Collective Agreement under which this
grievance was filed, there are no examples where an employee
successfully posted into a vacant position but was allowed to maintain the
weekend scheduling requirements of their previous position.
28.Article 2 of the Collective Agreement provides as follows:
ARTICLE 2 - MANAGEMENT RIGHTS
2.01 The Union recognizes and acknowledges that the
management of the Association operations and the direction of its
employees are fixed exclusively in the Association except as
specifically limited by an express provision of this agreement.
Without restricting the generality of the foregoing, the Union
acknowledges that it is the exclusive function of the Association to:
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(a) …
(b) …
(c) …
(d) determine the nature and kind of operational activities
conducted by the Association, the services to be performed, the
kinds and locations of operations, facilities, equipment and
materials to be used, the control of the materials, the methods,
programs, procedures and techniques of work, the number, location
and classification of personnel required from time to time, the
allocation and scheduling of work assignments, the extension and
limitation, curtailment, or cessation of operations or any part
thereof;
2.02 The Employer agrees that it will not exercise its functions in
a manner inconsistent with the provisions of this Agreement and
the express provisions of this Agreement constitute the only
limitations on the Employer's rights.
Union Submissions
3. Counsel for the Union stated that the question before me was, “Did the Employer
breach the Collective Agreement by failing to allow Ms. Dick to continue her one
weekend in four schedule in her new position at 55 Centre Street?”
4. Union counsel argued that the Letter of Understanding #8 of the Collective
Agreement, which was in effect at the time the grievance was filed, provided that
the Employer will endeavour to continue weekend scheduling in accordance with
the current practice. It is not disputed that the Employer’s practice in effect at all
material times to this grievance, and during the term of the Collective Agreement
under which the grievance arose, with regard to weekend scheduling, was that, if
an employee successfully transferred into a new position, they would maintain
their previous weekend schedule; if an employee successfully posted into a
vacancy, weekend scheduling was in accordance with the requirements set out in
the posting.
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5. Although the Grievor did not transfer, but posted into her new position at 55
Centre Street, the Grievor expected the Employer to continue her previous
weekend schedule of one weekend in four, in the new position she posted into.
6. Given that the Letter of Understanding #8 does not clearly set out a practice, nor
direct the employer to follow a specific practice, but rather provides a discretion
on the Employer to “endeavour” to continue weekend scheduling in accordance
with the practice in existence at the time, the Grievor asserts that the employer
should have maintained her previous schedule of one weekend in four in her new
position.
7. It is trite law that if a provision of the Collective Agreement confers a discretion on
the employer, it is open to an arbitrator to conclude that the discretion was
intended to be exercised fairly and reasonably. Arbitrator Newman in Zehrs
Markets and UFCW Local 1977 1996 CanLII 20408 (On LA) follows Arbitrator
Swan’s comments with respect to the duty to exercise management rights in a
manner which is reasonable as follows (pages 34 h – 35 a):
… every allegation that an employer is in breach of the collective
agreement must be considered individually, against the language which
the parties themselves negotiated, and in accordance with the well-known
cannons of construction. If, based on the general law of implied terms in
contracts, as general law may be adopted to the particular case of
collective agreements, the implication arises that a particular management
function must be exercised in a certain way, then an arbitrator is bound to
make that implication, since it arises from the collective agreement from
which the arbitrator draws his or her jurisdiction and which constitutes the
entire bargain between the parties.
8. In assessing the Grievor’s request with regard to weekend scheduling, the
Employer should have balanced the Employer’s operational needs and interests
alongside those of the Grievor’s. In Zehrs Markets, Arbitrator Newman follows
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Arbitrator Burkett on how to apply an implicit standard of reasonableness to any
specific set of facts as follows (page 35 f – h):
In our view, the employer’s decision making should be assessed against
the requirement to act for business reasons and the requirement not to
single out any employee or group of employees for special treatment
which cannot be justified in terms of real benefit to the employer.
9. The Grievor would not have sought to move out of Parkview, had she not felt
bullied and harassed by her co-workers. The Grievor sought a transfer out of
Parkview, but was advised to apply to posted positions instead, as there was
another employee seeking a transfer at the time. The Grievor would not have
applied to posting #225, were it not for the assurances given to her, as she
believed, by the Employer’s representative, that her schedule could be changed
once she was successful in a position. Under section 25(1) of the Occupational
Health and Safety Act, the Employer had a duty to take every precaution
reasonable in the circumstances, for the protection of Ms. Dick, while she was
feeling harassed and unsafe by her co-workers at Parkview.
10. On February 18, 2020, just two weeks after posting #225 closed, another posting
was advertised internally (posting #228), for a full time Outcome Support
Facilitator at 55 Centre Street, which did not require an every other weekend
schedule, but a one in four weekend schedule (see Tab 9 – Job posting #228 on
the Union’s Book of Documents). Given the requirements of posting #225 and
#228, it is clear the Employer did not require all full-time positions at 55 Centre
Street to be an every other weekend schedule. The Employer’s operations needs
required a mix of every other weekend and one weekend in four, full time
schedules at 55 Centre Street. As such, the Employer could have reasonably
balanced its operational requirements and scheduling needs, and that of Ms.
Dick’s personal needs, and given her a one weekend in four schedule, as she
sought.
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11. The Union recognizes and acknowledges, under Article 2 of the Collective
Agreement, that allocation and scheduling of work assignments is fixed
exclusively in the Employer, except as restricted in the Collective Agreement.
However, the Union takes the position that the employer did not use its discretion
reasonably with regard to weekend scheduling related to Ms. Dick. As such, the
Union seeks an Order declaring the Employer breached the Collective Agreement
in denying Ms. Dick’s request to continue a one in four weekend schedule at 55
Centre Street and any other remedy deemed appropriate.
Employer Submissions
12. In response to the Union’s submissions made on June 23, 2022 counsel for the
Employer points out that as is set out in the Agreed Statement of Facts, the Letter
of Understanding #8 of the 2018-2021 Collective Agreement provides that “The
Employer will endeavour to continue weekend scheduling in accordance with the
current practice.” There is no dispute that the relevant past practice is, as stated
by the Union at paragraph 2 of its submissions, that “if an employee successfully
posted into a vacancy, weekend scheduling was in accordance with the
requirements set out in the posting”.
13. Counsel suggested that there is also no dispute that the Employer acted in
accordance with that practice in the instant matter. It is the Union that is claiming
that the Employer should not have followed its practice with respect to weekend
scheduling in the Grievor’s circumstances. The thrust of the Union’s submissions
is that: a) Letter of Understanding #8 is discretionary; and b) the Employer unfairly
exercised that discretion by not deviating from the requirements set out in the
posting. The Employer disagrees with both aspects of the Union’s position.
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14. Employer counsel disagreed with the Union’s suggestion that the Letter of
Understanding #8 is completely discretionary. It remains trite law that an employer
retains discretion to operate its business as it sees fit, unless there are express
terms providing otherwise; there exists such a limiting term in the Letter of
Understanding #8. Specifically, in the Letter of Understanding #8, the Employer
agreed to limit its management rights by “endeavouring” to continue weekend
scheduling in accordance with the practices in place at the time of the agreement.
To the extent that there was any discretion under this letter of understanding,
such discretion certainly was not unfettered.
15. Secondly, counsel argued that the lack of unfettered discretion and clear
presumption in favour of maintaining the status quo undermines the Union’s
argument that the Employer unfairly and unreasonably exercised its discretion.
The Employer submits that the wording of the Letter of Understanding #8 means
that it is impossible for it to act unreasonably and/or unfairly so long as it is acting
in accordance with what it agreed to “endeavour” to do under the Collective
Agreement. It would only be if the Employer was seeking to not follow its past
practice that it would have to justify the reasonableness and fairness of its
actions.
16. Counsel pointed out that the Union relies on Zehrs Markets and UFCW Local
1977 in support of its position. In his view, that case is factually distinguishable in
that it involved the employer transferring a junior employee to a vacant position
that was desired by a more senior employee. No business reason was provided
by the employer for selecting the junior employee. Arbitrator Newman found that
while the Collective Agreement did not require the employer to select the senior
employee, it was required to act reasonably, which included providing a legitimate
business reason for selecting the junior employee.
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17. While the case is factually dissimilar, the decision relies on a relevant quote from
Arbitrator Burkett’s decision in Re United Parcel Service Canada Ltd. and
Teamsters Union, Loc. 141 (1981), 29 L.A.C. (2d) 202 wherein he commented on
how to assess the reasonableness of an employer’s decision. The Union in this
case also relied on this quote, which is reproduced below for ease of reference:
Is the arbitrator to sit back and assess management’s decision-making in
the light of some subjective concept of reasonableness or fairness? The
result would be to substitute the arbitrator’s judgment for that of
management in areas where the parties have decided, given certain broad
parameters, that management’s judgment should govern. Rather, in our
view, the duty is one which should be measured against more objective
standards such as used by the Court in the Metropolitan Toronto transfer
judgment [1977], supra. In our view, the employer’s decision-making
should be assessed against the requirement to act for business
reasons and the requirement not to single out any employee or
group of employees for special treatment which cannot be justified
in terms of real benefit to the employer.
[emphasis added]
18. Employer counsel argued that in the instant matter, the Union is suggesting that
the Employer ought to do exactly what Arbitrator Burkett cautioned against,
namely, single out the Grievor for special treatment without any benefit to the
Employer. Indeed, the inappropriateness of the Union’s request is exacerbated by
the fact that it is suggested that the Employer ought to have done so despite the
language of the Letter of Understanding #8, which requires the Employer to
endeavour to follow its practice with respect to weekend scheduling.
19. On top of this, even if Letter of Understanding #8 did not exist, it was suggested
that the Employer would retain the right to assess such a decision against its
operational needs. There exists no scenario where permitting the Grievor to work
fewer weekend shifts promotes operational efficiency.
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20. The Employer relied on Arbitrator Luborsky’s recent decision in Bell Canada and
Unifor, Local 46, 2017 CarswellNat 3583. In that case, the Grievor had been
required to relocate after his job was eliminated. The Collective Agreement
provided that employees “shall be reimbursed for moving expenses as approved
by the Company and in accordance with Company practices”. Arbitrator Luborsky
found that the employer’s actions with respect to the Grievor in that case did not
violate the specific article of the collective agreement outlined above. The
arbitrator then turned to the question of whether the employer had acted “fairly”,
and made the following comments:
69. …Even before the Supreme Court of Canada's decision in Bhasin v.
Hrynew, supra, which stands for the principle that, "parties generally must
perform their contractual duties honestly and reasonable and not
capriciously or arbitrarily" (per Cromwell J. at para. 63), many arbitrators
had concluded that a presumed underpinning of all collective agreements
is the expectation that its provisions will be administered in a "fair" or
"reasonable" manner, thereby prohibiting the arbitrary exercise of
managerial discretion and/or application of the terms of the collective
agreement that have a discriminatory effect, even when there is no
specific provision governing the matter outside of the general grant of
"managerial rights"…
…
71. However, while recognizing the expectation of fairness underpinning
the proper administration of the terms of the collective agreement in the
present case, even if there was no explicit contractual provision governing
the matter outside of the general application of the prerogative of the
Company to manage its operations, which under article 8.01 confers on
the Company, "the exclusive right and power to manage its operations in
all respects and in accordance with its commitments and responsibilities to
the public, to conduct its business efficiently and to direct the working
forces", the determination of what is and is not "fair" (to paraphrase
from Arbitrator Surdykowski, supra,) also does not come out of or
exist in the air. "Fairness" as a construct derives its appreciation
from the contextual perspective of the collective agreement read as a
whole, which in the instant case includes the management rights clause
that must be interpreted in the context of the substantive provisions in the
collective agreement addressing the matter at hand. The decision in
Bhasin and the arbitration awards that have followed do not stand
for a grand new vision that an inherent concept of "fairness" must
supersede or govern the proper interpretation of the substantive
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contractual provisions under consideration. In a "chicken-and-egg"
analogy, considerations of "fairness" do not rule the interpretive
roost; or in other words, the tail of "fairness" does not "wag the dog"
of proper contractual construction.
72. Instead, before one can assess what is a "fair" or "reasonable"
application of managerial discretion one must look to the wording of
the collective agreement as a whole to determine whether the parties
have addressed their minds to the specific obligation or entitlement
on the matter, which is the proper context of what constitutes fair or
reasonable administration of that obligation or entitlement under the
principles in Bhasin …
[emphasis added]
21. Counsel took the position that in applying these comments to the instant matter,
demonstrates the inherent fairness of the Employer’s actions. Any requirement
that the Employer act “fairly” must be read in context with the Collective
Agreement, and specifically the Letter of Understanding #8. By doing exactly what
it agreed to endeavour to do, the Employer clearly was acting fairly and
reasonably in the circumstances.
22. The Union, in its submissions, makes reference to job posting #228, despite that
posting and the facts surrounding it not being part of the agreed statement of
facts. While the Employer argued that the Union’s reliance on that job posting is
inappropriate, it is relevant to note that the successful applicant for that position
has greater seniority than the Grievor. As such, the Union’s position would require
the Employer to take away one in four weekend scheduling from a more senior
employee in order to provide the Grievor with special treatment.
23. The Union also argued that the Grievor would not have applied to posting #225
were it not for the assurances given to her. As indicated in the agreed statement
of facts, Ms. Lee’s evidence would have been that she never made any promises
with respect to the ability for Ms. Dick’s schedule to be changed, nor would she
have had the authority to unilaterally make such promise. The agreed statement
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of facts also confirm that, subsequent to her conversation with Ms. Lee, the
Grievor:
a. applied to posting #225, knowing that the posting specified that the hours
of work included “every other weekend”;
b. did not raise any concerns about the scheduling requirements for the
position during the job competition process;
c. indicated during the interview that she understood the “need to be flexible
in our schedule” and that the goals and outcomes of the persons the
Employer supports “don’t just run on a 9-5 job”;
d. did not raise any concerns with the schedule or inquire if the schedule
could be changed when asked, at the end of the interview, if she had
anything else she would like to ask of or tell the interview panel.
e. never spoke to Ms. Lee and/or the Employer’s Human Resources
department to request a schedule change after she was the successful
candidate for posting #225;
f. on September 14, 2020, signed an Employment Status Change
Agreement that confirmed that “The ability to work flexible hours is a
mandatory requirement inclusive of days, evenings, overnights and every
other weekend according to a schedule determined by your Supervisor”.
24. All of the above undermines any suggestion that the Grievor relied on any
assurances from Ms. Lee. In any event, any alleged assurance (which is denied
to have occurred) would be in violation of Article 1.01 of the Collective Agreement,
which provides that the Union is the “sole and exclusive bargaining agent for all
employees of Community Living Campbellford/Brighton” save and except for the
exceptions set out in that Article.
25. In summary, the Employer’s position is that, to the extent that it had discretion
with respect to the Grievor’s weekend scheduling, such discretion was clearly
limited by the parties’ agreement in the Letter of Understanding #8. As such, it
cannot legitimately be argued that the Employer failed to act reasonably by doing
exactly what the Collective Agreement required it to “endeavour” to do. In any
event, the Employer’s decision to act consistently with the Collective Agreement
and with its operational need for weekend work was clearly reasonable.
Accordingly, the Employer requests that the grievance be dismissed.
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26. The union did not make any submissions in reply.
Decision
27. I have carefully reviewed the submissions of counsel and the jurisprudence
provided. At the hearing in this matter, the parties agreed that they were content
to have me issue a “bottom line” decision. The Union acknowledged that pursuant
to Article 2 of the Collective Agreement, the allocation and scheduling of work
assignments are fixed exclusively in the Employer, except as restricted in the
Collective Agreement. There is no dispute that the Employer’s practice with
regard to weekend scheduling was that, if an employee successfully transferred
into a new position, they would maintain their previous weekend schedule and
that if an employee successfully posted into a vacancy, weekend scheduling was
in accordance with the requirements set out in the posting. There is also no
dispute that the Employer in this case acted in accordance with this practice and
complied with the Letter of Understanding #8 and with the Collective Agreement.
28. Counsel for the Union took the position that the Employer did not use the
discretion found in the collective agreement and the Letter of Understanding #8
reasonably with regard to weekend scheduling related to Ms. Dick. As such, the
Union sought an order declaring the Employer breached the Collective Agreement
in denying Ms. Dick’s request to continue a one in four weekend schedule in her
new position.
29. I disagree with the assertion of the Union. I believe that the Employer exercised
the discretion found in the collective agreement and the Letter of Understanding
#8 reasonably and in a manner consistent with the collective agreement and
operational needs. There has been no violation of the collective agreement in this
case.
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30. Accordingly, the grievance is dismissed. I will remain seized in the event that
there are any issues arising from this decision.
Dated in Toronto this 15th day of August, 2022
Janice Johnston
Arbitrator