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HomeMy WebLinkAbout1983-0341.Buss.84-03-29341/83 342/83 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Between: -- Before: Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (Klaus Buss) Grievor - and - For the Grievor: S. Laycock Grievance Officer Ontario Public Service Employees Union For the Employer: The Crown in Right of Ontario (Ministry of Health) Employer R. L. Kennedy Vice Cha ,irman F. D. Collom- ~.Member A. G. Stapleton Member M. V. Quick Counsel Legal Branch Ministry of Health Hearing: February 14, 1984 . -2- DECISIO%. A substantial portion of the factual background-to these grievances was agreed by the parties in a written statement filed with the Board. The agreed Statement of Fact provided as follows: 1. 2. 3. 4. 5. 6. 7. 8. These grievances concern Klaus Buss employed in the position of "Attendant II" by the Ministry of Health (hereinafter referred to as the "Ministry"),.at the Penetanguishene Mental Health Centre in Oak Ridges. At all material times, Mr. Buss was covered by the current Collective Agreement between OPSEU and the Crown in Right of Ontario (January 1, 1982 to December 31, 1983). Mr. Buss was originally scheduled to have Saturday, April 9; Sunday, April 10; Monday, April 11; and Tuesday, April 12, 1983 as regularly scheduled days off. On April 5, 1983, Mr. Buss was informed that his schedule had been changed so that he had Thursday, April 7; Friday, April 8;.Monday, April 11; and Tuesday, April 12 as his scheduled days off. The change in schedule occurred as a result of another attendant requesting time off pursuant to Article 19.4 of the Collective Agreement. Mr. Buss received overtime pay for the first 8 hours worked on his shift Saturday, April 9 pursuant to Article 10.1 of the Collective Agreement on the basis he had not received 120 hours notice of the shift change. On Thursday, April 7, 1983, Mr. Buss requested-': statutory lieu days off on Saturday, April 9 and Sunday, April 10, 1983, pursuant to particle 19.4 of the Collective Agreement. Mr. BUSS’S request for lieu days was denied on the basis of inadequate notice. -3- The Holiday Payment provisions of the Collective Agreement, which are referred to in the Agreed Statement of Fact provide as follows: 19.1 19.2 19.3 ~~ 19.4 19.5 -Hearing, ARTICLE 19 - HOLIDAY PAYMENT Where an employee works on a holiday included under Article 47 (Holidays), he shall be paid at the rate of two.(2) times his basic hourly rate for all hours worked with a minimum credit of seven and one-quarter (7-l/4), eight (E), or the number of regularly scheduled hours, as -applicab.le. In addition to the payment provided by section 19.1, an employee shall receive either sevenand one-quarter (7-l/4) or eight (8) hours pay as applicable at his basic hourly ra~te or compensating leave of seven and one-quarter (7-l/4) or eight (8) hours as applicable, provided the employee opts for compensating leave prior to the holiday. When a holiday included under Article 47 (Holidays) coincides with an employee's scheduled day off and he does not work on that day, the employee shall be entitled to receive another day off. Any compensating leave accumulated under'sections 19.2 and 19.3 may be taken off at a time 'mutually agreed upon. Failing agreement, such time off may be taken in conjunction with the employee's vacation leave or regular day(s) off. Any compensating .leave accumulated under sections 19.2 and 19.3 in a calendar yearwhich is not used before March 31 of the following year shall be paid at the rate it was earned. Sffecive March 1, 1978, the March 31 date may be extended by agreement at the local or ministry lever. In the course of additional evidence given on the it was'agree~d. between the parties.that the Griever at a - 4 - 11 material times did have an accumu lation of compensating leave within the provisions of Article 19. Employee Work Schedules are posted approximately 30 (thirty) days prior to the commencement of the schedule, and the Grievor's April schedule would have been posted in March. It is a three-shift operation, seven days a week, and in general each employee is scheduled to be off work on every third weekend. The Grievor was originally scheduled to be off wo.rk from Saturday, April 9th, to Tuesday, April 12th, inclusive, and in recognition of that scheduling, he had set up family plans to visit his brother in Toronto and to attend the Home Show. He was advised of the rescheduling on Tuesday, April Sth, .and it is clear that the reason for the rescheduling related to Management's decision to permit another employee, who had originally been scheduled to work April 9th and lOth, to take those days pursuant to the employee's right under Article 19.4. The Grievor decided to 'try to get'his weekend back by purporting to exercise his rights under Article 19.4, but this was denied by Management on the basis of inadequate notice of such request. Accordingly, the Grievor reported to work as instructed on Saturday,.April 9th. The scheduling practices of the Employer were reviewed in the evidence of witnesses called both by the Union and by the Employer. Because of the nature of the Employer's facilities in Oak Ridges, there are very strict minimum staffing requirements which must be adhered to at all times. There ~. -5- exists a pool of 12 part-time employees, who can be called in to .: meet staffing shortages resulting from sickness, injuries and vacations. If the staff'count cannot be maintained through that source, then it is necessary to resort to overtime assignments in order to maintain the staffing level. When Management receives a request for compensating leave under the provisions of Article 19.4, the schedule is checked to determine whether based on the scheduling and the minimum staffing requirements, the request can be accommodated. If it cannot, Management looks to the schedule for the same ward where the employee requesting the compensating leave works and will reschedule another employee on that same ward to take away a scheduled weekend for that employee in order to accommodate the request under Article 19.4. That situationoccurred on April 5th and was the reason why the Grievor had his-weekend pulled. We would conclude from the evidence that Management will not resort to the use of the part-time work-force in order to accommodate requests under. Article 19.4. It was the evidence of'witnesses for the Employer that part-time employees have less training and are not familiar with the programmes in the individual wards, and therefore it is desirable that not more than one part-time employee be used on each ward. It was also stated in evidence that on the weekend of April 9th all available part-time employees were, in fact, on duty in the Institution. The Grievor's supervisor stated that with more notice he could have done the same for the Grievor as he had done for the other‘employee on April 5th, but that to - 7 - ' compensating leave. It was further argued by the Union that in any event if it were necessary to determine what was reasonable, same should be done only upon consideration of the fact that the Grievor's weekend had been rescheduled on April 5th and that what constituted a reasonable period of notice had to take into consideration the degree of notice which was given to the Grievor with respect to the scheduling change. Counsel for the Employer made reference to Section 18 (1) of The Crown Employees Collective Bargainin.g Act,,,,~,R.S.O. 1980 c. 108, and argued that unless an employee under Article 19.4 were required to give reasonable notice of the employee's intention to take compensating leave, the Employer's right to manage the operation under Section 18.1 would in substance be abrogated. It was further argued that within the language of Article 19.4 and the specific holdings in the Tremblay decision a reasonable notice period was clearly contemplated with respect to the scheduling of-that leave. Counsel for the Employer further argued that it'would be unreasonable to interpret Article 19.4 on a basis that was not feasible in an administrative sense, and that forthatreason also the Article should be interpreted as requiring a reasonable period of notice from the employee as, to the scheduling of.,the compensating _ leave. It was argued that the section becomes totally unworkable in practice without the requirement of reasonable notice, and-that in substance a right on the part of the* -8- employee unilaterally to schedule the compensating le.ave would prevent the Employer from keeping the Institution properly staffed. It is the view of this Board that consistent with the language of Article 19.4 and with the practical realities of the administration and application of the Collective Agreement,'the Employer must have reasonable. notice of the exeridse by an employee of his rights under Article 19.4. In addition, it is clear from the language of Article 19.4 that the employee's right to specify the timing of the compensating leave comes into effect only at such time as there has not been an agreement as to when such time is to be taken. It is our view that before it can be considered that there has been a failure to agree on the timing, there must be at least some discussion between the parties in an attempt to reach such an agreement. On the evidence before us on this grievance, such effort at reaching agreement did not take place prior to.April lth, and therefore in determining what is a reasonable period of notice, the starting point can be no earlier than April 7th. ..In the circumstances of scheduling in the Institution and the particular problems of scheduling on weekends, which were outlined to us, we cannot find on the evidence that reasonabl'e notice was given 'by the employee, and therefore we cannot find that there has been a breach on the part of the Empibyer of its obligations under Article .19.4. We do not propose to enunciate - 9 - any guidelines or directions as to what would constitute reasonable notice since, in our view, what-is reasonable must be determined in lightof the particular circumstances of each ': individual case. We would further note that in the directive issued by Vice-Chairman Verity in the Tremblay case, the employee was required to exercise his discretion in the scheduling of lieu days withina reasonable time after the failure to reach a mutual agreement. It is our view..that it is implicit in that language that what constitutes "within a reasonable time" sets limitations both as to how much notice and how little notice must be given in making the scheduling decision. Such notice was not given by the Grievor on the evidence 'before us, and the Grievance No. 341 filed April 7, '~ 1983, grieving Management's refusal to comply with Article 19.4 of the Collective Agreement is therefore dismissed. .-,~,-$. .~ . ~There is another grievance before us, being Grievance No. 342/83, ~filed April 5, 1983; making reference to a stressful i and unfair labour practice by,reason of Management's actions on April 5th in taking away the Grievor's scheduled weekend. NO attention was paid~ to that Grievance in the.course of evidence - 10 - and argument, and we were advised by the parties that in their view the disposition of 341/83 filed April 7, 1983 would resolve the issues between the parties. We accordingly make no order with respect to. that Grievance. DATED this 29th day of March, 1984. y& /!Jay?.4b A. G. Stapleton, blember