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HomeMy WebLinkAboutWalker 12-09-30IN THE MATTER OF AN ARBITRATION brought pursuant to the Ontario Labour Relations Act, 1995, as amended (Grievance of Walker) BETWEEN: NORTH BAY PARRY SOUND DISTRICT HEALTH UNIT (the “employer”) - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION (the “union”) AWARD Arbitrator: Marilyn A. Nairn Hearing held: September 6, 2012 (North Bay, Ontario) APPEARANCES For the union: Marion Melville For the employer: Carl W. Peterson 1 AWARD 1. This grievance concerns the proper interpretation of Article 16.04(b) of the collective agreement. The parties are agreed that I have the jurisdiction to hear and determine the grievance. 2. Article 16.04 provides: (a) The Employer shall be allowed to flex the normal hours of work for full-time employees between 7:00 a.m. and 10:00 p.m. from 7:00 a.m. Monday until 4:40 p.m. Friday. (b) An employee may flex his hours provided his supervisor authorizes it. Consent will not be unreasonably withheld, provided the needs of the program are met. (c) Work which is authorized and performed by full-time employees outside 7:00 a.m. to 10:00 p.m. from 7:00 a.m. Monday until 4:30 p.m. on Friday is considered overtime and will be paid in accordance with Article 16.03 3. The hearing proceeded on the basis of agreed facts. The employer is a health unit. The grievor, Kimberly Walker, is employed as a certified dental assistant and is a member of the employer’s oral health team. There are twelve employees in that department providing dental services in two program areas, the mandated program and a clinic program. The mandated program primarily involves those services provided in the schools within the employer’s geographic area. The employer contracts with a dentist to provide services in the clinic program. Employees in the clinic program provide the necessary supportive dental services, including hygienist and dental assistant services. At the time of the grievance, filed on October 5, 2011, the grievor was employed in the mandatory program. Her supervisor was Pat Walpole. 4. Early in the morning of October 3, 2011 the grievor’s boarder fell at home and injured an ankle. The grievor was scheduled to work from 8:30 a.m. to 4:30 p.m. that day. At 6:22 a.m. she left a voicemail message both on the employer’s absentee call-in line and on Ms. Walpole’s voicemail. The grievor advised that she was taking a non-family member to emergency; that she did not know how long she would be, and that she would take float time to cover her absence. There is no dispute that this reference to float time was a reference to the two float holidays available to employees under Article 17 of the collective agreement. 5. The grievor arrived at work a little before 10:30 a.m. At 12:19 p.m. she sent an e-mail to Ms. Walpole. Over the course of that day and the next, the following e-mail exchange occurred: Grievor: I got in just before 10:30 this morning so I have to put in 2 hours. Of course, I would like to flex but understand that it was not preauthorized. Please advise if flexing is an option. If not, I’ll put in two hours of float… Ms. Walpole: Thanks for checking in. I need you to take 2 hours of float because it was not preauthorized…. Grievor: ……How does one request for flex time in this situation? 2 Ms. Walpole: According to the collective agreement, flex time must be preapproved. For this reason, a person would need to use other INFO HR options in this situation. Examples might be vacation, float, or special leave for family members. If a person has no time left, the request would be dealt with on a case by case basis. Grievor: I did as you requested and booked 2 hours of float time…. for today. You have not answered my question “How does one request for flex time in this situation?” As well, I do not see where the collective agreement states, “flex time must be preapproved”…I was not scheduled in the clinic and I was not scheduled to be in a school today. Ms. Walpole: When you called me yesterday morning, you left a message indicating you would be taking the time you needed off as float time. Your e-mail below at 1219 hours indicated “Of course I would like to flex but understand that it was not preauthorized. Please advise if flexing is an option. If not, I’ll put in for two hours of float. It has been the practice of this team to have flex time preapproved prior to requesting or taking it. For this reason, I indicated you would need to take float time. As I indicated in my e-mail below, flex time in this situation might be considered on a case by case basis if the staff member has no vacation, float, comp or special leave time left in their INFO HR bank. 6. On October 3, 2011 the grievor was to be engaged in administrative work relating to her job. She did not have a school visit scheduled for that day. She initially indicated to Ms. Walpole that she would take only a half-hour lunch and use the other half-hour as flex time. Further arrangements were never considered due to the employer’s position that the flex time request was not pre-authorized. 7. The grievor used two hours of float time and filed this grievance. The issue is whether Article 16.04(b) requires flex time to be pre-authorized. The remedy sought is the reinstatement of two hours to the grievor’s float bank. The employer noted that, should the grievance be successful, the grievor would also be required to work an additional two hours in order to be placed in the same position she would have been in had the time been flexed on October 3, 2011. * 8. Neither party relied on any caselaw. Both agreed that it was necessary to discern the intention of the parties through the application of the normal rules of contract interpretation, attributing the normal meaning to the words used; giving meaning to all of the words used; and doing so both in the context of the immediate provision and the collective agreement as a whole. 9. In brief it was the position of the union that, although the use of flex time required authorization from the employer, nothing in Article 16.04(b) or elsewhere in the collective agreement required that such authorization be given in advance. In the union’s submission the employer was obliged to exercise its discretion and give consideration to the request, even on the 3 grievor’s return to work, and that the collective agreement required the employer to exercise that discretion reasonably. 10. The employer noted that the grievor told the supervisor that she would use float time, yet subsequently filed a grievance when the employer accepted that option. However, the employer’s primary position was that Article 16.04(b) required the authorization of flex time prior to it being taken. The employer referred to Articles 2.01, 16.03, and 16.04(a) and (c) of the collective agreement in support of its argument that the words used necessarily contemplated a request in advance. Only in such a circumstance, argued the employer, would it be able to determine whether program needs “are” met. Additionally, argued the employer, allowing flex time requests to be made after the fact would simply encourage employees not to attend work during their scheduled hours of work. There were other options should an employee seek time off with pay, argued the employer. Nor, argued the employer, did it mean that the employer could not reasonably exercise its discretion outside of Article 16.04(b) to allow the use of flextime in appropriate circumstances. * 11. The fact that the grievor initially indicated that she would take float time for the absence does not affect the proper interpretation of Article 16.04(b) or the grievor’s ability to pursue a grievance. It is clear from her initial e-mail that the grievor was asking to use flex time, even while she also appears to have anticipated a negative response from the employer. 12. Article 2.01 of the collective agreement sets out a broad management rights clause that gives the employer authority to set schedules, determine hours of work, and authorize overtime. In this case, pursuant to those management rights, the employer has established scheduled work hours for its employees. However, Article 16.04 of the collective agreement also speaks directly to those scheduled hours of work. 13. Article 16.04(a) expressly gives the employer the right to require a full-time employee to flex their normal hours of work within certain parameters of time, in order that the employer may avoid the payment of overtime. Article 16.04(a), for example, entitles the employer to require a full-time employee whose normal hours of work are 8:30 a.m. to 4:30 p.m. to work until 5:30 p.m. on a given day. There is no dispute that this is done in response to business needs, for example, if the appointment for a client in the dental clinic runs longer than anticipated and goes beyond 4:30 p.m. In that instance, the employee is not treated as having worked overtime requiring the employer to pay time and a half. Rather, the employer “force flexes” (the parties’ terminology) the additional hour worked and directs the employee to come in late or leave early on another day. Article 16.04(a) exists as a mechanism for the employer to avoid having to pay overtime in circumstances where the nature of its various programs may require some flexibility in the work schedule. 14. Article 16.04(b) is a mirror provision to Article 16.04(a) and is arguably a kind of quid pro quo. It provides the opportunity for an employee to request to work outside her scheduled hours of work by “flexing” her hours. The term “flex” derives from the word “flexible”, leading one to conclude that, notwithstanding the employer’s right to schedule hours of work in Article 4 2.01 of the collective agreement, the parties have, in Article 16.04(b), expressly agreed to incorporate some degree of employee-initiated flexibility into those scheduled hours of work. 15. That opportunity requires the supervisor’s authorization. However, the provision does not state that authorization must occur in advance. If intended, it would have been a simple matter for the parties to state, “provided his supervisor pre-authorizes it”, or, “authorizes it in advance”. The parties did not use such a limitation. 16. The employer relies on the verb tense in the phrase “provided the needs of the program are met” to assert that this necessarily implies a review in advance of an absence during scheduled hours of work. I am not so persuaded. Article 16.04(b) states simply, “provided his supervisor authorizes it”. As noted above, there is no temporal limit in the phrase where it would normally be expected. Attributing the normal meaning to the words used leads to a conclusion that a decision to authorize flex time may be taken at any time; before, during, or after an absence during scheduled hours of work. There is nothing inherently unusual about an employer characterizing the nature of an absence from scheduled hours of work after the fact of that absence. The words “are met” do not act to limit that broader temporal opportunity to authorize flex time. Whether program needs are met speaks to whether consent will be given, not when it will be given. Those words recognize and reinforce the parties’ agreement that legitimate program needs take priority over an employee flex time request. 17. That assessment of program needs is made at the time of determining whether to authorize the flex time request. The facts of this case provide a good illustration. There was no suggestion that the grievor’s absence during her scheduled hours of work on the morning of October 3, 2011 had any negative impact on program needs. Had the grievor’s unexpected absence resulted in some jeopardy to program needs, that would be reason to deny flex time and require the employee to utilize some other entitlement in order to be paid for time absent from her scheduled hours of work. However, had the grievor in this case been able to actually reach her supervisor prior to her scheduled start of work, there is nothing in the evidence that would support a refusal of the grievor’s request, including any concern about program needs. There is simply no basis for reaching a conclusion that the authorization of a flex time request be dependent on whether one can reach one’s supervisor in time. 18. Article 16.04(b) provides that the employer’s consent “will not be unreasonably withheld”. That consent is derived from an exercise of the employer’s discretion. That discretion is to be exercised reasonably. A key factor for the employer is whether legitimate program needs are met. There was no suggestion in this case that program needs could not have been met by, for example, the grievor flexing time by working a shorter lunch and staying later that day. 19. The employer noted that it could still exercise its discretion “outside of Article 16.04(b)” and allow flextime in appropriate circumstances. That opportunity was referenced in the e-mail exchange where the supervisor indicated that the employer would consider a flex time request made after the fact on a case by case basis if the staff member had no other entitlement such as vacation, float days, or special leave to cover the absence. This is effectively an assertion that the employer could simply exercise its discretion pursuant to the management rights clause of the collective agreement. 5 20. The notion that any residual discretion with respect to employee flex time requests rests in the management rights clause of the collective agreement is dependent on a finding that the collective agreement is otherwise silent. Yet the opportunity to make flex time requests is expressly provided for in Article 16.04(b) of the collective agreement. And that provision deals expressly with the exercise of an employer discretion. The employer’s claim that there may be circumstances where it can appropriately exercise its discretion ‘outside of Article 16.04(b)’ to authorize flex time after the fact, in my view, simply highlights how one must contort the language of Article 16.04(b) in order to conclude that the exercise of discretion under that provision is time-limited. 21. Article 16.04(b) provides an employee with a specific opportunity to request flex time. It is subject to employer authorization. That consent is not to be unreasonably withheld. There is nothing in the language of Article 16.04(b) or the collective agreement as a whole that could reasonably lead one to conclude that the parties intended that the employer’s discretion to authorize flex time requests would be exercised differently or not at all depending on when the request was made. A reasonable exercise of discretion requires that the employer not fetter its discretion inappropriately and that it consider each request on its merits, and subject to the stated concern for legitimate program needs. 22. There is no doubt that, practically speaking, requests for flex time should be made in advance. Otherwise an employee runs the risk that her request will not be approved and other entitlements would have to be used to ensure no loss in pay arising from the absence. The employer’s ability to respond to an unexpected absence is also a factor in assessing whether program needs are met. However, where, as here, the request is in response to an emergency, the employer was promptly notified of the absence, and authorizing the request would have resulted in no impact on program needs, I am satisfied that the employer improperly exercised its discretion by denying the request on the basis that it was not pre-authorized. 23. Having regard to all of the above, I find that Article 16.04(b) of the collective agreement does not require pre-authorization of a request to flex time. The grievance is therefore allowed. 24. Should the grievor wish to have the two hours of float time restored to her float bank for 2012, she is required to arrange with the employer to work an additional two hours at a mutually convenient time. I will remain seized with respect to any issue concerning the implementation of this award. Dated at Toronto, Ontario this 30th day of September, 2012. __________________________________________ Marilyn A. Nairn, Arbitrator.