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Home My WebLink About2022-12240.Jackson et al.24-05-14 Decision Crown 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# 2022-12240; 2022-12241; 2022-12242; 2022-12243;2022-12244; 2022-12245; 2022-12246; 2022-12247; 2022-12248; 2022-12249 UNION# 2023-0369-0013; 2023-0369-0014; 2023-0369-0015; 2023-0369-0016; 2023-0369-0017; 2023-0369-0018; 2023-0369-0019; 2023-0369-0020; 2023-0369-0021; 2023-0369-0022 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Jackson et al) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Gail Misra Arbitrator FOR THE UNION Dan Sidsworth Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Asma Hatia Treasury Board Secretariat Employee Relations & Negotiations Employee Relations Advisor HEARING May 7, 2024 - 2 - Decision [1] The Employer and the Union at the Central North Correctional Centre (“CNCC”) agreed to participate in mediation-arbitration in accordance with the Local Mediation-Arbitration Protocol that has been negotiated by the parties. Should mediation not result in resolution of a grievance, pursuant to the Protocol, they have agreed to a mediation-arbitration process by which each party provides the Arbitrator with their submissions setting out their respective facts and the authorities they may be relying upon. This decision is issued in accordance with the Protocol and with Article 22.16 of the collective agreement, so that it is without precedent or prejudice to any other matters between the parties, and is issued without detailed written reasons. [2] The decision addresses grievances filed by ten employees at the CNCC: Kristen Connolly, Candon Jackson, Joy Anju, Kelly Magloughlin, Diane Marcellus, Kelly Parsons, Patricia Purshouse, Mohammad Rafi, Susan Skelton, and Paige Tupling. Except for Ms. Marcellus, who is an Addictions Counsellor, and Ms. Skelton, who is a Rehabilitation Officer, the rest of the grievors are all Social Workers. [3] The grievances all arise out of the same set of events, and are worded identically. The common issue is that the Employer is alleged to have violated Article COR 5 of the collective agreement in that it did not provide 96 hours of notice of change of a shift for work scheduled to be performed on February 20, 2023, which was Family Day. The remedy sought is that each grievor be remunerated at the premium rate for a statutory holiday shift. [4] There is no dispute about the facts. On or about November 16, 2022 the Union and Employer reached a new “Compressed Work Week Memorandum of Agreement” (“CWWMA”) for the Social Workers. Similar agreements were applicable to the Addictions Counsellor and the Rehabilitation Officer. One significant change from earlier CWWMAs for all these workers was that they went from working a Monday to Friday compressed work week to a schedule that included evenings and weekends. The new generic work schedules were attached to the CWWMA, and employees in each work group had the right to choose their schedule line from all the available lines based on their classification and seniority. [5] Under the previous CWWMA these workers had not worked on statutory holidays. However, based on their various lines on the new work schedule, the grievors were all scheduled to work on Monday February 20, 2023. [6] On February 16, 2023, the Manager of Social Work & Rehabilitative Services sent all her staff an email in which she wrote as follows: As this will be the first Stat holiday since the change of schedule, this is a friendly reminder that you are not required to work on a Stat day. This is reflected in E- Roster. - 3 - [7] The grievors therefore did not work on the Family Day statutory holiday, and were paid in accordance with the collective agreement terms for those who do not have to work such holidays. However, the grievors assert that the notice they received about not having to work on a day they were otherwise scheduled to work was a “change of schedule” pursuant to Art. COR5.1, and that they had not received the requisite 96 hours of prior notice of the change of their respective shift schedules. According to the Union, they received 88 hours of notice of the change. As such, the Union asserts that the grievors should be paid at the rate of time and a half for all hours worked on the first changed shift. [8] The Employer argues that this was not a change to the shift schedule, but rather was the Employer advising its employees that their services were not required on February 20, 2023. Furthermore, it notes that the grievors were all paid in accordance with the terms of the collective agreement for that statutory holiday. It points out that there was in fact no change to the grievors’ schedules, and they each returned to work following the statutory holiday on their previously scheduled shifts. [9] The Employer relies on the Grievance Settlement Board’s unreported decision in OPSEU (Patricia Sim) and the Crown in Right of Ontario (Ministry of Correctional Services), GSB File No. 1293/87, October 11, 1988, A Barrett et al. In that case, on facts essentially the same as those before me in this instance, the Union made the same arguments as were made in this case. Relying on earlier Board decisions, the Barrett panel agreed with previous jurisprudence on this issue, and found that the grievor’s shift schedule was not changed as they were not asked to work a different shift from what was originally scheduled. In the Sim case the grievor was considered surplus to the Employer’s needs on the statutory holiday and was therefore advised not to come in. As in the case before me, in that case the grievor had not received the requisite amount of notice that would have been applicable if the employer was making a shift change. [10] The Board, in Sim, cited with approval from the G.S.B. 338/83 and 339/83 (Birse) decision the following excerpt (at p. 4 of the Sim decision): We find there is no provision in the collective agreement which prohibits management from ordering the grievor to take a day off on a statutory holiday, even though he was scheduled to work. … There was no change in shift schedules here. [11] While these decisions were from 1983 and 1988, there is still nothing in the collective agreement that specifically limits the Employer’s “management right” under Article 2.1 to determine its staffing levels. [12] Having considered the submissions of the parties and the facts of the grievances before me I find that the Employer was within its rights to determine that it did not need the grievors to work on the 2023 Family Day statutory holiday, and it so advised them. Since the Employer was not seeking to change the grievors’ shift schedules, it had no obligation to give them 96 hours notice. The grievors were not required to work on some date for which they had not already been - 4 - scheduled: Rather, they were told that they did NOT have to work on a scheduled day, but they were paid in accordance with the collective agreement for that un-worked holiday. [13] For all the reasons outlined above, the grievances are dismissed. Dated at Toronto, Ontario this 14th day of May 2024. “Gail Misra” Gail Misra, Arbitrator