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Home My WebLink About2009-3256.Cooper.10-10-13 Decision en.n EiJJpIo)II!es Grievance Settlement Board Commission de riglement des griefs des~dela eor.ome ~ smte mo 180 IJlndas 5t WesI TCJRJrm. QBiD IofiG 1ZB Tel (4-16) 326-1388 Fax (4-16) 326-1396 Ibeau mo 100. rue IJlndas Ouest TCJRJrm (0nIari0) M5G 1ZB Tel: (4-16)326-1388 T~ : (4-16) 326-1396 ontario GSB#2009-3256 UNION# 201 ()...{)411-0002 IN THE MATIER OF AN ARBITRATION Under THE CROWN EMPLOYEES COlLECTIVE BARGAINING ACT Before THE GRIEVANCE SETILEMENT BOARD BETWEEN Ontario Public Service Employees Union (Cooper) Umon - aad - The Crown in Right of Ontario (Minis1Iy of Comrmmity Safety and Correctional Services) Employer BEFORE Felicity D_ Briggs Vtre-Chair FOR THE UNION Scott Andrews Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Bart Nowak Minis1Iy of Government Services Employee Relations Divisioo. Employee Relations Advisor lIEAKING October 5~ 2010_ -2- Decision [1] The Employer and the Union at the Ottawa Carleton Detention Centre agreed to participate in the EXPedited Mediation-Arbitration process in accordance with the negotiated ProtocoL Most of the grievances were settled through that process_ However, a few remained unresolved and therefore require a decision from this Board The Protocol provides that decisions will be issued within a relatively short period of time after the actual mediation sessions_ Usually these decisions are without reasons_ However, in this situation some facb; and rationale are necessary_Further, the decision is to be without prejudice and precedent_ [2] Mr_ John Cooper is a Correctional Officer who filed a grievance dated January 1, 2010 alleging imPIDpeI" compensation for the Labour Day Holiday he worked on Monday September 1, 2009_ Specifically he did not receive any compensating time off. [3] Mr_ Cooper worked the shift prior to the holiday, Labour Day itself and on September 8, 2009 he worked eight hours_ The grievor had orieinally been scheduled to work twelve hours on September 8, 2009_ However, as a result of an earlier request that was apPIUVed in advance by the Employer for four hours of vacation time, he worked for eight hours on the Tuesday_ [4] It was the Union's position that according to Article COR 13_4, language that virtually mirrors the provisions of the Employment Standards Act, the grievor worked his regularly scheduled shift before and after the holiday and accordingly he is entitled to holiday pay_ -3- [5] It was the Employer's position that the grievor did not work his "regularly scheduled shi1r following the holiday_ It was asserted that his "regularly scheduled shire was to be a twelve hour day and because he only worked eight hours with four hours of vacation time, he did not work his regularly scheduled shift In the Employer's view, the failure to work twelve hours on that Tuesday meant that his next c"regularly scheduled shiftu was September 11, 2009 and he was absent due to illness on that day_ [6] Additionally, the Employer contended that the grievance should be dismissed as it was not processed through the grievance procedure in a timely fashion. While this objection had not been raised prior to the medlam, it was the Employer's view that too much time had intervened between the Labour Day weekend and January 1,2010 when the grievance was filed [1] The grievor indicated that he did not realize that he had not been properly paid until after he reviewed his pay stub_ Once he found the discrepancy he had some prelimimuy discussions to detennine if an error had been made_ Shortly thereafter he engaged in ongoing email conveISations with a variety of different Employer representatives in an effort to resolve the issue_ This Board was provided with those entails. He was provided with a definitive response from the Employer on January 4,2010_ The grievance was filed a few days later_ [8] After a review of the emails provided by the grievor I have no hesitation in finding that this grievance is not out of time_ There was ongoing written communication between the grievor and various Employer representatives_ -4- The :first of ten emails was dated November 4, 2009 and it referred to earlier verbal conversations he had in this regard It appears as if Mr_ Cooper actually thought the Employer had made an error and he was hoping to uclarify this mattei"_ When he was definitively told on January 4, 2010 that he "'did not qualify for COR 13-2u Mr_ Cooper filed the written grievance_ [9] It appears that this dispute is about the meaning of c"regularly scheduled shire as that phrase is found at COR 13_4_ The Employer takes the position that the grievor's regularly scheduled shift for September 8, 2009 was a twelve-hour shift and because he failed to work twelve hours it should not be considered Therefore, it is appropriate to consider September 11th as the grievor's next "'regularly scheduled shi1r_ The grievor was absent from work due to illness that day and accordingly he failed to work his regularly scheduled shift and therefore is not entitled to compensation time off. [10] I di~eree_ The grievor may ori~nally have been booked to work twelve hours on September 8, 2009_ There was no dispute that absent his approved vacation request he would have worked twelve hours on that day_ However, he requested vacation time for a POrtion of that work day and as I understand the facb;, his request was granted Accordingly he was scheduled for and worked eight hours on Tuesday September 8, 2009_ Therefore, I am of the view that his c"regularly scheduled shi1r after the Labour Day holiday was the eight hour shift he was scheduled for and worked on Tuesday September 8, 2009_ [11] The Employer suggested that because a portion of Tuesday September 8, 2009 was paid for but not worked, it was not a "'regularly scheduled shi1r_ -5- It was suggested this day was akin to a bereavement leave_ That is to say, if the grievor had been on a bereavement leave, he would have been paid but not actually worked his regularly scheduled shift. Therefore, his next regularly scheduled shift would have been September 11, 2009_ [12] I do not think the facb; before me are analogous to a bereavement leave_ After having four hours of vacation time apPIUved, the grievor was scheduled for and worked eight hours on September 8, 2009_ The day is not uskipped ov~ because part of it was vacation time_ He was scheduled to work for eight hours and he did work all of the hours that he was expected to work.. That eight hour shift on the Tuesday was his "regularly scheduled shirr _ [13] The grievance is upheld I remain seized Toronto this 13th day of October 2010_ - Felicity D_ Briggs, Vice-Chair