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Home My WebLink About2023-02229.Ferro et al.24-07-19 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# 2023-02229; 2023-02230; 2023-02371 UNION# 2023-0617-0013; 2023-0617-0014; 2023-0617-0016 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Ferro et al) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Brian P. Sheehan Arbitrator FOR THE UNION Dan Sidsworth Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Justin O'Gorman Treasury Board Secretariat Employee Relations & Negotiations Team Lead HEARING June 18, 2024 -2 - Decision [1] The Employer and the Union at the Sudbury Jail agreed to participate in the Expedited Mediation/Arbitration process in accordance with the negotiated Protocol. It is not necessary to reproduce the entire Protocol. Suffice to say, that the parties have agreed to a True Mediation/Arbitration process wherein each party provides the Arbitrator with their submissions setting out the facts and the authorities they respectively will rely upon. This decision is issued in accordance with the Protocol and with Article 22.16 of the collective agreement, and it is without prejudice or precedent. [2] The three individual grievances that are the subject of this Award ostensibly involve the same fact scenario. [3] The Grievors are Fixed Term Employees (FXTs) working at the Sudbury Jail. [4] With respect to all three grievances, each respective Grievor was prescheduled to work an available day shift. Grievor Nathan Ferro was scheduled to work an E9 shift on September 3, 2023. Grievor Joey Stafford was scheduled to work an E8 shift on September 9, 2023. Grievor Fiona McQuade-Crangle was scheduled to work a T9 shift that same day. [5] In all three cases, the Grievors were sent home shortly after arriving on shift and were directed to come and work a night shift that started later that evening. It would appear without dispute that at the time, there was a shortage of staff at the institution, such that there were employees working overtime during the day on the days that the Grievors were sent home. In fact, it would appear on September 9, 2023, that an employee was called in to work an overtime shift in close proximity to the time that Grievors Stafford and McQuade-Crangle were sent home. [6] The Union asserted that it was inappropriate for the Employer to send the Grievors home while other employees were there working overtime. In support of this argument, the Union relies on the wording of Article 8.2.2 (which is also set out in the Provincial Overtime Protocol (POP)), which stipulates: Overtime opportunities will only be offered once the non-overtime regular and non-overtime fixed-term resources have been exhausted, even if part of the shift becomes overtime. It is opined that in keeping with the above language, the Grievors should have remained working at their assigned shifts on the days in question, rather than the Employer allowing employees working overtime to remain at work. Furthermore, -3 - with respect to the scenario of Grievors Stafford and McQuade-Crangle on September 9, 2023, it was submitted they should have been allowed to work their scheduled shift rather than the Employer calling in an employee on overtime around the time that the Greivors were sent home. [7] Additionally, the Union submitted that the Employer’s action in sending the Grievors home from their scheduled shift and ordering them to return to work a shift commencing later that evening violated Article COR 5.6, which reads as follows: Fixed-term employees will be pre-scheduled two (2) weeks in advance, with all known shifts being scheduled. Any change to the pre-scheduled shifts must be verbally confirmed. [8] The Employer indicated there was a demand for COs to work the night shifts on the days in question, but the Employer was unable to find sufficient staff to work overtime to fill the available shifts. Accordingly, it was decided to effectively transfer the Grievors to work those shifts. The Employer asserted it would have been fundamentally inappropriate to transfer the COs working overtime on the days in question to work the night shifts as those employees had been offered and had agreed to work specific shifts. To put it more squarely, those employees had not agreed to work night shifts as overtime, but rather the day shifts that were offered to them as overtime. [9] It could be suggested that the Employer did not treat the Grievors fairly in the circumstances. However, the issue to be decided is not necessarily whether the Grievors were treated fairly but whether the actions of the Employer constituted a violation of the collective agreement. [10] In the circumstances, it is my view that the actions of the Employer did not violate COR 8.2.2 or the relevant wording of the POP. There is a strong argument that the underlying intent of the pertinent wording of COR 8.2.2 is to confirm that the Employer is not obligated to offer employees available work as overtime if FXTs are available to perform the work at non-premium rates of pay. The provision does not suggest that the Employer is, in fact, obligated to assign available work to FXT employees who have not been scheduled to work 40 hours that week as opposed to the work being offered as overtime. Moreover, in the case at hand, the evidence would seem to suggest at the time that the relevant overtime was offered, the Grievors were scheduled to be working at the institution on those days and, therefore, unavailable for consideration. [11] With respect to the Union's assertion that the Employer violated Article COR 5.6 under the collective agreement, FXT employees are afforded limited protection -4 - with respect to a schedule change. In this regard, a non-FXT CO is entitled to 96 hours' notice of a change to a scheduled shift, and if there is a failure to comply with that provision, the employee is entitled to be paid at the rate of one-half times for hours worked on the first changed shift. In contrast, Article COR 5.6 only requires the Employer to verbally confirm with the FXT employee that there has been a change to a prescheduled shift. While the protection provided to FXT employees is markedly limited, it still needs to be satisfied. An underlying purpose of the Employer verbally confirming with the employee that there has been a shift change is to avoid the possibility of the employee arriving at the institution expecting to work a shift as originally scheduled only to find that they are now assigned to another shift. That exact scenario effectively played itself out for the Grievors. They arrived at work in accordance with their assigned shifts and were then effectively advised that their shift had been changed to the night shift that evening. In my view, the course of action of the Employer was not in keeping with the intent of Article COR 5.6. [12] In light of the above, it has been determined that the Employer violated Article COR 5.6 of the collective agreement with respect to the manner in which the scheduled shifts of the Grievors were changed. Accordingly, it is declared that the Employer violated the collective agreement. It is deemed, however, that only declaratory relief is appropriate in the circumstances, as it would appear the Grievors did not suffer financially, and there is a marked absence of the parties specifying a penalty that would be applicable with respect to a breach of Article COR 5.6. Dated at Toronto, Ontario this 19th day of July 2024. “Brian P. Sheehan” Brian P. Sheehan, Arbitrator