HomeMy WebLinkAbout2021-1647.Gerrick.2022-11-14 DecisionCrown Employees
Grievance
Settlement Board
Suite 600
180 Dundas St. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Commission de
règlement des griefs
des employés de la
Couronne
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
GSB# 2021-1647
UNION# 2021-0290-0020
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Gerrick) Union
- and -
The Crown in Right of Ontario
(Ministry of Children, Community and Social Services) Employer
BEFORE Gail Misra Arbitrator
FOR THE UNION Gregg Gray
Ontario Public Service Employees Union
Grievance Officer
FOR THE EMPLOYER Karen Martin
Treasury Board Secretariat
Employee Relations Advisor
HEARING December 13, 2021; March 7 and
November 1, 2022
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Decision
[1] Since the spring of 2000 the parties have been meeting regularly to address matters
of mutual interest which have arisen as the result of the Ministry of the Solicitor
General as well as the Ministry of Children, Community and Social Services
restructuring initiatives around the Province. Through the MERC (Ministry Employee
Relations Committee) a subcommittee was established to deal with issues arising
from the transition process. The parties have negotiated a series of MERC
agreements setting out the process for how organizational changes will unfold for
Correctional and Youth Services staff and for non-Correctional and non-Youth
Services staff.
[2] The parties agreed that this Board would remain seized of all issues that arise
through this process and it is this agreement that provides me the jurisdiction to
resolve the outstanding matters.
[3] Over the years as some institutions and/or youth centres decommissioned or
reduced in size others were built or expanded. The parties have made efforts to
identify vacancies and positions and the procedures for the filling of those positions
as they become available.
[4] The parties have also negotiated a number of agreements that provide for the “roll-
over” of fixed term staff to regular (classified) employee status.
[5] Hundreds of grievances have been filed as the result of the many changes that have
taken place at provincial institutions. The transition subcommittee has, with the
assistance of this Board, mediated numerous disputes. Others have come before
this Board for disposition.
[6] It was determined by this Board at the outset that the process for these disputes
would be somewhat more expedient. To that end, grievances are presented by way
of statements of fact and succinct submissions. On occasion, clarification has been
sought from grievors and institutional managers at the request of the Board. This
process has served the parties well. The decisions are without prejudice but attempt
to provide guidance for future disputes.
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[7] Jennifer Gerrick is a Fixed Term (“FXT”) Youth Service Officer (“YSO”) who began
working at the Roy McMurtry Youth Centre in 2014. On August 4, 2021 Ms. Gerrick
filed a grievance claiming breaches of Article 2 and Appendix COR19 of the
collective agreement. By way of remedy, she seeks full redress and to be made
whole.
[8] In particular, the grievor claims that the Employer has improperly calculated her
hours worked as it has not given her credit for sick time when she provided a doctor’s
note or was off work in receipt of WSIB benefits. As well, Ms. Gerrick claims that
the Employer has failed to post accumulated FXT Youth Services Officers’ hours
quarterly, in violation of the terms of the collective agreement.
[9] On or about September 21, 2020 the grievor first filed her claim of discrepancies in
her hours after the Employer had posted FXT YSO hours that day. On the next
posting of hours in June 2021, Ms. Gerrick again raised her concern about
discrepancies in her hours. As she had filed her 2020 discrepancy complaint about
hours that were purportedly from 2017, 2018 and 2019, long after the dates on which
she should have advised the Employer of any hours discrepancies, her complaints
were denied. However, the grievor states that she is aware of another YSO who
had also filed her discrepancy claim late but whose hours were reviewed, and that
individual was credited for unpaid sick time that was supported by medical
documentation.
[10] It appears that the grievor is seeking to have her total hours worked rectified for
periods she was off sick or in receipt of Workers’ Compensation benefits in 2017,
2018 and 2019. She claims that she was off work injured for some of the times
when the Employer claims that she was required to report any discrepancies in her
total hours. She also claims that she is a very busy person with multiple
responsibilities and is not able to keep track of her hours.
[11] Based on a review of the documents provided by the Employer, it appears that in
2017 the FXT YSO total hours were posted on March 21 and June 21, 2017. On
the March 21, 2017 posting the email advising employees of the posting of hours
indicated “if there is a discrepancy, please let me know”. On the June 21st posting
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the message to employees was more specific and stated: “Should I not receive
notification of any discrepancies by July 7th, your posted hours will be deemed to
be accurate. As a result, the hours will not be reviewed at a later date.” The
grievor was not off work on sick leave nor off work in receipt of WSIB when either
of those postings went up, or during the periods of time thereafter when she could
have complained about the calculation of her hours. She did not file a claim of a
discrepancy.
[12] In 2018 there were three postings of total hours for FXT YSOs: on February 28,
May 28 and October 17, 2018. Again, on each occasion the posting indicated that
there was a date by which any employee who claimed that there was a discrepancy
in their total hours was invited to bring that to the Employer’s attention, along with
the warning that if no issue was raised, the posted hours would be deemed accurate
and would not be reviewed at a later date. The grievor was not off work on sick
leave nor off work on WSIB during any of those three periods of time. She did not
notify the Employer of a discrepancy. Ms. Gerrick was off work as a result of a
workplace injury from July 16 to August 6, 2018, and received partial loss of earnings
from August 6 to 19, 2018. However those periods do not coincide with any dates
when the Employer had posted the total hours for FXT YSOs.
[13] In 2019 there were two postings of total hours for FXT YSOs: on January 25 and
September 18, 2019, both with the same type of warning as had been on the June
2017 posting of hours. Ms. Gerrick had one discretionary day off on February 4,
2019, which fell within the time when employees could file claims of discrepancy,
but was not otherwise absent due to illness or due to a compensable workplace
injury around that time. Since the deadline for indicating discrepancies for that
posting was anytime between January 25th and February 13th, the grievor had ample
opportunity to raise her concerns.
[14] For the September 18, 2019 posting of total hours, the grievor was off work when
the posting first went up as she had a WSIB incident on August 28, 2019. However,
she returned to full duties at work on September 20, 2019. Since the deadline by
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which to raise discrepancies regarding hours was October 2, 2019, the grievor had
sufficient time to file a complaint upon her return to work.
[15] Finally, on January 25, 2020 there was a posting for total hours worked up to the
end of December 2019. The period in which to complain was up to February 13,
2020. While the grievor was off work for a discretionary day off on January 25th
when the posting went up, she was not off work due to sickness or due to a
workplace injury after that, so she would have had sufficient time to raise any
concern regarding a discrepancy in her total hours. In every instance of a posting,
the Employer warned employees that they needed to raise any concerns about their
hours by a set deadline, or be deemed to have accepted the hours. They were also
told that the total hours would not be reviewed at a later date.
[16] As the grievor asserted that another YSO had been treated differently than she had,
the Employer has provided evidence regarding that instance, and conceded that
what occurred in that instance should not have happened. The Employer had done
a March 2021 posting of total hours for FXT YSOs. In June 2021, about two months
after the deadline for raising discrepancies, the YSO, TD, inquired about her hours,
and provided a list of dates during three weeks in July 2020 when she had been off
work for surgery, and had provided medical documentation to her staff services
manager. According to the Employer, while TD had filed her inquiry about her hours
late, since the dates were not very far in the past, the Employer had been able to
review them easily and it credited TD for the unpaid sick time that had been
supported by medical documentation. The Employer acknowledges that this should
not have occurred as the rules are clear.
[17] Having considered the submissions of the parties and the evidence before me, I find
that the grievor simply waited too long to raise her concerns about the alleged
discrepancies in her total hours calculation. Her issues are with regards to hours in
2017, 2018 and 2019. She did not raise these concerns until late 2020, and did not
file a grievance until August 2021. In my view the rules are clear, they have been
brought to the employees’ attention at each posting, and the consequences of non-
compliance have also been outlined. As such, and while there may have been one
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instance in which the Employer mistakenly addressed a YSO’s complaint after the
deadline for raising discrepancies, that is not a reason to abandon the rules and
consequences entirely.
[18] The issue in this grievance is not really about whether the Employer has been
posting total FXT hours quarterly. There is no question that pursuant to Appendix
COR 8 of the collective agreement it is obligated to do so. However, it appears that
unlike the situation in Ontario Public Service Employees Union (Mauviel) v Ontario
(Solicitor General), 2020 CanLII 74269 (ON GSB), the Roy McMurtry Youth Centre
had been posting total hours at least twice or three times a year.
[19] It is worth noting what Appendix COR8 says in regards to the quarterly posting of
FXT total hours. It states:
Fixed Term employees will have their hours calculated quarterly. These
hours will be given to fixed-term employees with a dispute form to be
checked and given back to the Employer for final verification. This will
be done in order to expedite any further rollovers.
[20] One of the purposes of the parties’ agreement is to try to ensure that any disputes
regarding an FXT’s total hours are resolved quickly, and regularly, so that should a
rollover opportunity arise, it can be effectively managed by ensuring that those with
the most total hours may be awarded permanent positions. There are therefore
obligations on both the institution (to post the total hours quarterly), and on FXT
employees (to raise any issues about their hours quickly). The issue this grievance
raises is that despite those postings, the grievor did not avail herself of the
opportunity to claim discrepancies in a timely manner when it would have been
possible to easily check her records, and rectify any errors should they have been
found.
[21] The Union argues that there is no specific deadline in Appendix COR8 for the filing
of claims about discrepancies. In my view this is an argument without merit. The
parties have, through the language quoted above, shown their intention that the
issue of hours calculations should be resolved quickly. In addition, Article 22.1 of
the collective agreement, regarding the Grievance Procedure, specifically indicates
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that it is the intent of the collective agreement to adjust as quickly as possible any
complaints or differences between the parties. Furthermore, in Art. 22.2 the parties
have agreed that a grievance must be filed within thirty days “after the circumstances
giving rise to the complaint have occurred or have come or ought reasonably to have
come to the attention of the employee” (emphasis added).
[22] In this case the grievor’s concern about her hours ought reasonably to have come
to her attention whenever the Employer posted the total FXT YSO hours, and when
she was advised to check her hours, bring any concerns to the attention of the
Employer, or be deemed to have accepted them.
[23] The Union further argues on behalf of the grievor that she was not aware until
recently that sick time that was medically supported by documentation and WSIB
time could be counted towards her total hours for the purpose of rollovers. It is
unfortunate that the grievor was not aware of this, but that is not a reason that I can
accept for her having sat on her rights for more than three years. Employees have
access to their collective agreement, and to the Union’s representatives in the
workplace should they have any questions. Ignorance of their rights is not an
acceptable reason for inordinate delay in filing a grievance. In any event, this reason
is at odds with the grievor’s other reasons given for not having raised her concerns
earlier. As I have already addressed above, while the grievor claimed she had been
too busy to count her hours, and as well that she had been away sick or off work
due to a workplace accident at the times that the Employer had posted the FXT
hours totals, the evidence demonstrated that the latter were inaccurate claims.
[24] Having considered the submissions of the parties, and the documents submitted,
for all of the reasons outlined above, this grievance is hereby dismissed.
Dated at Toronto, Ontario this 14th day of November 2022.
“Gail Misra”
_________________
Gail Misra, Arbitrator