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HomeMy WebLinkAbout1983-0179.Cope.84-11-23IN THE MATTER OF AN ARBITRATION Between: -- Before: For the Grievor: For the Employer: Hearing: Under THE CROWN EMPLOYEES COLLECTIVE BARGA INING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (Robert G. Cope) - and - The Crown in Right of Ontario (Ministry of Education) Grievor Employer ;.Bo,\;;;e~n, Q.C. Vice Chairman W:A. Lobraico Member Member G. Richards Grievance Officer Ontario Public Service Employees Union P. Mooney Staff Relations Officer Management Board of Cabinet May 13, 1983 DECISION Mr. R. G. Cope is employed as a Residence Counsellor III at the Robarts School, London. On December 7, 1982, he submitted the following statement of grievance: "On November 18, 1982, I was scheduled to work a 16.0 hour shift. Half-way through this shift, having received word that my father had just died, I left work (8.0 hrs.). My next scheduled shift \ was November 22, 1982, the day of dad's funeral. This shift totalled 20.5 hours. My grievance is that I applied for and was granted bereavement leave for a 3 day equivalent of 24.0 hours. The remaining half day (4.5 hrs.) is being charged as leave without pay." Mr. G. R. Richards, representing the grievor, argues that there are basically two issues. 1. Can the employer unilaterally deduct the 4.5 hrs. from current pay or should they be required to wait until the end of the averaging period? 2. HOW does Article 48 - Bereavement Leave, apply to the grievor who is working irregular hours under Appendix 3, Schedule A of the Collective Agreement? That is, is he entitled to more than 24 working hours ofspaid leave? .Mr. P. Mooney, representing the employer, argues that the Ministry can determ ,i: ne the timing of such deductions from pay as -2- the Collective Agreement is silent in this respect. On the second issue, he raised an objection to the Board that this constituted an enlargement of the original grievance and suggests we were not authorized to deal with it. If we were to proceed he wanted to have the option of submitting written argument. After discussing the issue raised, the Board decided to proceed with the submission of evidence and argument, reserving judgment on the objection. The parties then submitted an Agreed Statement of Fact and it was decided that written argument would be prepared before the Board made any decision. For a variety of reasons, it took much longer to prepare, exchange and consider the extensive written arguments submitted by Counsel and the Board has only now had an opportunity to convene again and render its decision. The written arguments received from Mr. Richards and Mr. Mooney were very detailed ans assisted the Board immeasurably in arriving at its decision. The case law cited was also very helpfu 1. -3- Can the employer unilaterally deduct the 4.5 hours from the current pay or should they be required to wait until the end of the averaging period? As outlined in the able submission of Mr. Mooney, we believe the employer should normally have this right; however, under the circumstances in this case we believe it would be fair to await the end of the averaging period. The grievor was working under an averaging schedule and had an excess of hours to his credit at the time and the period of excess leave in this case is quite small, 4.5 hours. It appeared as if the Minister offered this solution at stage one and two of the grievance procedure, but this does not mean that it would necessarily.be appropriate in every situation. Obviously, the case mentioned by Mr. Mooney in his submission relating to Article 50, Adoption Leave, (12 weeks), would have to be dealt with differently and it would be good practice for arrangements to be worked out in advance. Allowing the deduction of 4.5 hours to be settled at the end of the averaging period might even be an advantage to the employer in some cases as it might reduce the amount of overtime hours which have to be paid if the total hours worked exceed the year's requirement. In any case, to that extent, the grievance is sustained. We presume that by now the matter has been resolved as that averaging period ended in June 1983, but retain jurisdiction in the event there is still some dispute. -4- The Board believes, if it is not already being done, it may now be time to draw up a Memorandum of Agreement to cover these schools as is done with the "Compressed Work Week Arrangements", (Appendix 4), specifying how the different articles apply in such cases. How does Article 48, Bereavement Leave, apply to the grievor who is working irregular hours under Appendix 3, Schedule A of the Collective Agreement? That is, is he entitled to more than 24 working hours of paid leave? The Board believes that it is not necessary for us to answer this question in order to resolve this grievance, notwithstanding that Counsel for the union asked that we deal with this issue. It is our view that where the grievance can be allowed, as we have done here without dealing with the wider issue, then we should refrain from dealing with it. In our view, it would be more appropriate that this matter be resolved by the parties during negotiations for a new Collective Agreement. Accordingly, it is the decision of this Board that the grievance be allowed and that the grievor be allowed the 4.5 hours that were originally deducted. If this has not already been done or if . there are any problems in the implementation of this award, the Board remains seized. -5- Dated at Toronto this 23rd day of November, 1984. I /.~.gqfjy\ S.B. Linden, Vice Chairman K. O'Ne 1, Member 1 W.A. Lobraico, Itember