Loading...
HomeMy WebLinkAbout2011-2308.Policy.12-07-20 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2011-2308 UNION#11-38 Appendix “A” attached IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Canadian Union of Public Employees - Local 1750 (Policy) Union - and - The Crown in Right of Ontario (Workplace Safety and Insurance Board) Employer BEFORE Daniel Harris Vice-Chair FOR THE UNION Jim Morrison Canadian Union of Public Employees – Local 1750 National Staff Representative FOR THE EMPLOYER Michael Smyth Heenan Blaikie LLP Counsel HEARING June 6, 2012. - 2 - Decision [1] This is the first of four individual grievances heard on June 6, 2012 pursuant to the Board’s Decision of January 20, 2012 (attached as Appendix “A”). Accordingly, it has no general precedential value. As noted in that decision, there is also a policy grievance related to scheduling. These individual decisions deal with alleged human rights violations. The grievances remain part of the policy grievance. [2] All of these grievances arise out of changes to the collective agreement from the last round of bargaining. Those changes included the elimination of the option of compressing the work day by working through lunch hours and breaks, the elimination of eighteen sick days, of which up to three days could be used as personal days, the introduction of nine wellness days, which may be taken as whole or part days as the employee sees fit and modifications to the flex-time provisions to allow for four flex-time options. [3] This grievance arises out of the Employer’s decision to impose a general rule that operational staff must commence work no earlier than 7:30 a.m. Its decision and the rationale for it are set out in a memorandum to operations staff dated September 27, 2011, which reads as follows: Since 2008, the WSIB has demonstrated a stronger and sharper focus on understanding and delivering what really matters to customers, built on the principle that reintegration into the workplace is the best outcome. Understanding this also means rigour and discipline in our approach – to deliver fair benefits and services that are cost-effective and achieve the best possible outcomes for workers and employers. - 3 - In order to improve our availability for customer contact, we have decided that, as a general rule, staff should commence work no earlier than 7:30 a.m. Exceptions will be considered if the unique job function or circumstance requires the employee to start earlier than 7:30 a.m. The main reason for this decision is that, to ensure success, our business model and approach to case management has changed significantly. The New Service Delivery Model, with its focus on early and regular contact with workers and employers has created “talking jobs”. The prior approach, which focused more on the gathering of paper documents has been replaced by significant interpersonal contact and worksite interventions. This enables us to better execute on our goals of return to work, recovery and service excellence. In addition, we have created greater specialization which has increased the need to interact with one another more than ever before. To be successful, we need to optimize our availability to customers and to one another. We continue to see service gaps with respect to our availability to clients. This has been noted by both employers and workers. The new requirement on start time will help us achieve our customer service objectives. Thank you for your support and cooperation. [4] Pursuant to article 25.02(b), the Employer established a process by which employees were able to choose a flex-time option. By extending their working day employees accumulate sufficient hours to permit them to take other days off work. The following represents the available options: Flex Work Arrangement Extend Work Time 1) 4 days to attain the 5th day off work 1 hour, 47 minutes 2) 9 days to attain the 10th day off work 47 minutes 3) 14 days to bank 1 day as vacation time 30 minutes 4) 19 days to bank 1 day as vacation time 22 minutes [5] This matter claims that the Employer’s rule discriminates against the grievor on the grounds of family status, contrary to the Ontario Human Rights Code. The law in this - 4 - area continues to develop. Having reviewed the jurisprudence submitted by the parties, I adopt the test originated by Arbitrator Jesin in Power Stream Inc. and I.B.E.W., Local 636 (Bender) 2009, 186 L.A.C. (4th) 180 (Jesin). This case stands for the proposition that, for discrimination to be found, there must be a serious interference with a substantial parental or other family obligation. Arbitrator Allen also reviewed the authorities in Customs and Immigration Union and A.W.U., Unit 15 (Loranger) 2011, 205 L.A.C. (4th) 343 (Allen). Her summary of the test is at paragraphs 41 through 44 as follows: [41] It is now trite law to state that absent discrimination on a prohibited ground, there is no duty to accommodate. There must first be a prima facie case of discrimination. Campbell River and Johnstone agree on that point but differ on what constitutes a prima facie case. [42] In Campbell River, the BCCA found: that a prima facie case of discrimination is made out when a change in a term or condition of employment imposed by an employer results in a serious interference with a substantial parental or other family duty or obligation of an employee [at para. 39]. [43] In Johnstone, the FCTD (affirmed by the FCA) found that the BCCA decision had been criticized for “conflating the threshold issue of prima facie discrimination with the second-stage bona fide occupational requirement (BFOR) analysis” [at paras. 29 – 31]. The FCTD noted that the Campbell River analysis led to a “secondary or lesser status” for family status discrimination. It also failed to recognize that conflicts between employment obligations and parental obligations would most often arise from a change within the family, rather than a change to a condition or term of work. Thus the Johnstone test is: The fact that the Applicant was adversely affected by the Respondent’s policy is sufficient to establish a prima facie case of discrimination [at para. 31] [44] In Power Stream, arbitrator Jesin developed an amalgam of the two tests. He criticized the Johnstone test as being too broad. For example, he argued that employment obligations and family obligations are often in conflict. An employer should not be considered as having breached the Code if it orders mandatory overtime and an employee has to miss a child’s championship game or school play, as a result, however, he accepted that most changes would originate in the family, rather than from an employer rule. Arbitrator Jesin’s test for a prima facie case is therefore that there be a “serious interference with a substantial parental obligation’ [at para. 59]. - 5 - [6] On the basis of the foregoing, before there is a duty on the Employer to accommodate the grievor, the Union must establish that the rule that staff not begin work earlier than 7:30 has seriously interfered with the grievor’s family obligations. The Grievor’s Circumstances [7] The grievor is a nineteen year employee, who has worked a 7:00 a.m. to 3:00 p.m. shift since starting with the Employer. After the adoption of article 25.02(b) in the current collective agreement she submitted a number of flex-time proposals, each of which proposed that she start at 7:00 a.m. [8] The grievor’s evidence of family status discrimination was that she provides care for her mother. That care includes daily meal preparation. Each morning the grievor drives to her mother’s home where her mother lives with the grievor’s father and the grievor’s fifty year old sister. She drops off the day’s meals and picks up her sister. They drive together to the GO Train station and take the train downtown. Her sister starts work at 7:00 a.m. However, the grievor is not permitted to start work until 7:30 a.m. The grievor works until 4:17 p.m., as she is on flex-time option number 2. Her sister makes her own way home, having arranged a ride from the station to home. [9] The grievor goes straight to her mother’s home at the end of the workday. She engages in physical and mental activities with her such as going for walks. Such physical activity helps to keep her mother’s chronic medical condition stable. Upon her return to her own home she begins preparing her mother’s meals for the following day and sees to her own needs. - 6 - [10] She said that she needs to take the lead on her mother’s care because she has done so for some time and change would be disruptive for her mother. She also said that her father would not be able to take the lead in this care because he would not be able to provide the same type of encouragement that she said her mother requires and that she is able to provide. She said that she has taken the lead regarding her mother’s medical issues while her sister provides care through the night. The grievor attends medical appointments with her mother and has developed a rapport with her mother’s physicians. [11] Under the previous collective agreement, the grievor took advantage of flex-time and the opportunity to work a compressed work day. She usually worked 7:00 to 3:00 and arrived home at 3:50 p.m. One day a week she worked a longer day. Although presently she could finish at 3:30 if she did not exercise a flextime option, she said she needs the extra flex-days to accompany her mother to medical appointments. The grievor says that she has established a routine that supports her mother’s care. She has chosen to exercise a flex-time option that requires her to work 47 minutes extra each day. Without that option she would only be working thirty minutes later than previously. Of central importance is her car-pooling arrangement with her 50 year old sister. There was no evidence as to why she needs to drive her sister to the GO station, other than an assertion that her sister cannot travel on her own. The focus in her evidence was that she was at work by 7:00 a.m. anyway and nothing in her job would prevent her from working from 7:00 to 7:30. [12] An Employer generally has the right to set working hours. Here, those rights are also the subject of the policy grievance. - 7 - [13] The grievor says that there would be no hardship to the Employer if she were permitted to start at 7:00 a.m. However, the questions of accommodation and hardship only arise once the Union makes out a case that the grievor has been discriminated against. Here, the grievor has significant responsibilities in caring for her mother. However, the evidence does not establish serious interference with her family responsibilities. Rather, there is a thirty-minute period in the morning that she would prefer to work. Her preferred flex-time option was to work from 7:00 to 4:47 p.m. towards a five over four work schedule. She said that the extra day off was more important than the late departure. Accordingly, the departure time from work is not the issue, it is the inability to work from 7:00 a.m., which makes for a longer day than the grievor would prefer. [14] It is clear that the grievor would benefit from the earlier start time. However, that is not the test. On the evidence, the extension of her day by one-half hour is the result of the grievor accommodating her sister with a ride to the GO train. Absent that circumstance, the grievor’s day would be shortened by the time she seeks. The Employer’s rule has not discriminated against the grievor. The discrimination claim by the grievor is dismissed. The grievance remains part of the policy grievance. Dated at Toronto this 20th day of July 20112. Daniel Harris, Vice-Chair - 8 - “APPENDIX “A” Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2011-2308 UNION#11-38 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Canadian Union of Public Employees - Local 1750 (Union) Union - and - The Crown in Right of Ontario (Workplace Safety and Insurance Board) Employer BEFORE Daniel Harris Vice-Chair FOR THE UNION Jim Morrison Canadian Union of Public Employees - Local 1750 National Staff Representative FOR THE EMPLOYER Michael Smyth Heenan Blaikie LLP Counsel HEARING December 19, 2011. - 9 - Decision [1] This is a Union grievance which takes issue with the implementation of the flex-time language of the collective agreement. It came on for hearing on December 19, 2011. At that time the parties entered into discussions regarding the management of this case as well as the individual grievances that have arisen related to the implementation of the flex-time language. [2] First, it was agreed that I would take jurisdiction over the individual grievances. At present there are some 147 such grievances. The following is the process by which these cases will be heard. [3] Any individual grievance relating to flex-time will initially go to a first step meeting in the normal course. That will permit an exchange of views on the subject and provide for the identification of any grievances that are related to the flex-time issue. [4] If the grievance is not resolved at the first step, it will be referred to the GSB to be heard by me. The parties will identify the grievance as such so that GSB staff can make the necessary arrangements. If the parties agree that the issues in any particular grievance are entirely encompassed by the issues in the policy grievance, they will refer the grievance to the GSB to be held in abeyance pending the outcome of the policy grievance. Absent such agreement, if the matter comes before me and I determine that the issues are entirely encompassed by the policy grievance, I will adjourn it pending the outcome of the policy grievance. Where a matter contains individual and policy issues, the individual issues will go forward as set out below. [5] All individual issues relating to the implementation of the flex-time language will be heard where practicable, at the work location of the grievor. It is to be expected that more than one grievance will be heard in a day, and the parties should be prepared to hear as many in a row as is possible. [6] No later than two weeks prior to the hearing, the Union will provide to the employer a will-say statement from the grievor, and any other witnesses, along with any documents upon which it will rely. [7] At the hearing, the Employer may cross-examine the maker(s) of the will-say statements and provide any viva voce evidence it requires. The parties will have the right to redirect examination of its witnesses and cross-examination of the opposite party's witnesses. Both parties will be able to make brief submissions. [8] The Decisions of the Board may be oral or written as is appropriate. There will be internal consistency in the Decisions, but there will be no general precedential value beyond the group of individual grievances. - 10 - [9] Any concerns or modifications to the process may be addressed by teleconference call. [10] The policy grievance will continue to be heard in parallel proceedings. We will schedule five days at this juncture. One single day followed by successive two-day blocks. Those dates will be scheduled through the GSB staff, as will any dates set for the hearing of the individual grievances. The parties will be responsible for arranging suitable hearing space where the matters are heard on location. Dated at Toronto this 20th day of January 2012.