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HomeMy WebLinkAbout1985-0760.Morris.87-06-05BETWEEN: BEFORE: IN TRE MATTER OF AN ARBITRATION THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT FOR THE GRIEVOR: FOR THE EMPLOYER: REARING: TRE GRIEVANCE SETTLEHENT BOARD OPSEU (P. Morris) -and- THE .CROWN IN RIGHT OF.ONTARIO (Ministry of Health) E. Slone Vice-Chairman I. Freedman Member L.R. Turtle l4ember I. Roland Counsel Gowling & Henderson H. Fleiscbman Law Officer Ministry of the Attorney General April 16, 1987 Griever Employer 7 DECI~SIOP The Grievor, PATRICK MORRIS, is a psychiatric nursing assistant at the North Hay Psychiatric Hospital. The nursing staff works.~ll-.1/2 hour days on a compressed work week arrangement. During each two week period staff members work a total of 7 days, in a recurring pattern of days on and off during the cycle. In the Griever's case, he works Monday, Tuesday, Friday, Saturday and Sunday duri~ng the first week of the cycle, and Wednesday and Thursday during the second week. Sometimes he works day shifts and sometimes night shifts, but the pattern is always the same.' The Griever testified that he could predict with almost perfect accuracy his schedule for many months ahead, merely by consulting a table showi'ng the shift rotation pattern. This table, referred to as the Master Schedule, was marked in evidence as ‘0xhibi.t “2”. In late February of 1985 the Grievor was obliged to submit a vacation schedule request setting out his . preferences for vacation in the coming summer. As a first choice he specified June 24 - 30, and as a second choice July 1 - 7. Mr. Morris had consulted the Master Schedule and concl’uded that he would have otherwise been working June 24, 25, 28, 29 and 30, and July 3 and 4. He testified that he wanted to specify the particular days to be’taken as vacation, but he was told that he had to specify the week, - 2 - not particular days. Sometime after submitting the vacation ‘schedule request (Exhibit “1”) he received word that his second choice, the week of July 1 - 7, had been approved. The Grievor testified that a-month or two later he submitted another form specifying that July 3 and 4 were to be taken as vacation days, but no copy of this form was produced at the hearing . Shirley Steele, who was Director of Nursing at the relevant time, testified that it was not necessary for any such form to have been submitted once the vacation week has been approved. She was therefore doubtful that any such form had been utilized although she would not say for certain that it had not. K. Quite apart from any such form it is clear that the Grievor expected that July 3 and 4 would simply be considered vacation days, since those were the only days he was scheduled to work during the week of July 1 - 7 according to the Master Schedule. rt is important to recognize the status of the Master Schedule. It was not always predictive of the reality. Ms. Steele gave certain examples of when the actual nurse’s time schedule’ would deviate from the Master Schedule. For example, an employee might be off for illness, on Worker’s Gompensation or attending an educational posting. ‘It was also stated that the schedule could vary at the specific - 3 - request of an employee,' assuming that request could be accommodated. However, it was not suggested that the Master Sched~ule was ever shuffled arbitrarily or deviated from for reasons other than to deal with the type of scheduled absences noted. Ms. Steele did concede that the Master Schedule was a very reliable guide. some two weeks in advance of each actual two week cycle, the Head Nurse prepares th,e proposed actual time schedule using the Master Schedule as a guide. In preparing this actual schedule the Head Nurse must also take into account any particular exigencies applicable to the period, such as known absences, vacations and Statutory holidays.. The actual schedule for July 1 '- 14, 1985 (Exhibit "3") was . approved by the nursing co-ordinator on June 13 and posted a day or two thereafter. When one looks at the Grievor's schedule for' July 1 - 7 it.appears that July 4 is scheduled as a vacation day. However, July 3 is classified as a rest day, or day off, and July 1 has been scheduled as a work day. Then, in the same stroke of the pen July 1 has been written off and credited as 3.5 hours of vacation time and 8 hours for the Canada Day Statutory holiday. The Grievor described this process of being "booked on and off on July l", which probably describes what happened as well as any other terminology. - 4 - The net effect of this scheduling was not to disappoint the Griever’s vacation plans. He was not actually required to report to work on any day when he hoped to be on vacation. His expectation had been that 23 hours of accumulated vacation time would be used up to give him the 3rd and 4th of July off. He had also anticipated that siqce~ he was not scheduled on the Master Schedule to work on July 1. that he would be credited with 8 hours of time in lieu of the Statutory holiday: This anticipation derives from Article 19.3 of the Collective Agreement wh.ich provides that “where a (Statutory) holiday . . . coincides with an employee’s scheduled day off and he does not work on that day, the employee shall be entitled toe-receive another day off.” Instead, the effect of the rescheduling was to use up.only 15 hours of the Grievor’s vacation time, but prevent any “lieu time” for the July 1st holiday being accumulated. It is obvious from a reading of the Collective Agreement that lieu time is more valuable to the employee tdan vacation time, an observation that did not escape the Grievor. The greater value derives from the fact that the employer can veto just about any specific request for a vacation day, but is obliged under Article 19.4 of the Collective Agreement to grant a lieu day of the employee’s choice so long as one month’s notice is given and is taken .’ - 5 - either immediately before or after a scheduled day off. In addition, vacation credits cannot be stored indefinitely but must be taken as vacation within a certain period while the lieu time not so taken is paid for in cash. The gist of this grievance is that Mr. Morris retur,ned from.his vacation with 8 hours more accumulated vacation time and 8 hours less accumulated lieu time than he believed he was entitled to. Shirley Steele testified that it was the policy at the Hospital to schedule as many people off for the Statutory holidays on those actual days, and minimize the accumulated ,lieu time within the system. She regards this pol’icy a’s a goad management practice, since the taking of lieu time can create some problems for the employer. She described in some detail the nature of the Hospital and its need for‘adequate staffing around the clock and around the calendar. She did not elaborate on the problems caused by lieu time, but presumably it can be inconvenient at times because it forces the Head Nurse to find a replacement, whether it is convenient or not, from the complement of part-timers, floaters, contract staff or regular staff willing to work overtime. However, it should not be overlooked that one month’s notice must be given by the employee, which seems on the~surface to be more than enough time for the employer to . ..’ _’ - 6 - make alternate arrangements. Counsel for the employer defends the practice and its application .to the Grievor on the basis that it falls squarely within the emplo,yer's exclusive function under Section 18 of the Crown Employees Collective Barqaining Act to "manage", and "to determine . . . assignment(s)". This is of course an important and essential right of the employer, not to be encroached upon by decisions of this .Board. However, we must examine what the employer actually did in this case and determine whether it was "managing", or something else in the guise of managing. If the pr.acticg violates the Collective Agreement it is not protected by Section 18. Counsel for the Grievor called it "blatant manipulation". Those words are reasonably apt to describe what isno more than a bookkeeping entry done entirely for the convenience of the employer, but which unfortunately'and unwittingly violates the employee's rights under Article 19.3 of the Collective Agreement. Looking back to the Griever's original vacation request, we see that his firs~t choice was a week that would have enabled him to use up 5 full days of vacation credits. Instead, he was granted his second choice which as foreseen . : 1,: ‘~ ‘& : - 7 - at that time would have enabled him'to use up 2 full days of credits. At the time July 1 - 7 was approved there was no actual schedule to refer to, only the Master Schedule. In our view, once the Grievor had been approved for a vacation July 1 - 7 the employer had no further "assigning" of him to do. The exclusive power to assign work shifts for an employee who is actually available to work does not in our view extend to the unilateral'creation and simultaneous abolition of a fictional work assignment for an employee who has to everyone's knowledge been scheduled for months in advance to be away on vacation at the time. This practice stretches the word "assignment" beyond the meaning of Section 18; and beyond what is necessary to manage the work place. In so deciding we do not pass-comment upon any practice insofar as it may extend to those employees who are actually available to work the assignments scheduled by the employer. It is clear from other decisions cit.ed to us that there is no right~to work Statutory holidays. Indeed, it is. the policy of the Legislature that employees not work. Statutory holidays, where the particular neecls of the work place,do not require around the calendar staffing. Therefore, if the employee is given the Statutory holiday off when he or she expected to be working, there can be no complaint. But that is not the situation we are dealing - 8 - with, and we find no particular assistance in the reasoning to be found in the cases of Birse 338/83, 339/83 and Ferquson 78/82, decisions of this Boa,rd which were cited to us by counsel for the employer. Looking at the impugned practice another way, it is tantamount to requiring the employee under certain circumstances to utilize his lieu time in priority to his vacation time. No matter how desirable or convenient this may be from the employer’s point of view, it derogates from the specifically bargained for right of the employee to a day off in lieu of his own choosing, not of the employer’s choosing. In the result’therefore,, the grievance is allowed. The only appropriate remedy which can be fashioned this long after the actual event is to make an adjustment to the Grievor’s current accumulated vaoation credits and lieu time credits. His vacation credits are to be reduced by 8 hours, and his lieu time credits are to be increased by 8 hours. This will give him in 1987 additional flexibility in his scheduling to the same degree as that lost to him in 1985. If the Grievor does not actually have 8 hours of accumulated vacation time to his credit at the time this decision is released, then the adjustment shall be made as soon : 0 ’ d (1 ’ - 9 -’ as the full complement of 8 hours is accumulated. If there are any difficulties in the implementation of this &cicion, ,t);e Board will remain seized of jurisdiction and give whatever directions are necessary. DATED AT Toronto, Ontario this 5th day of June 1987. ERIC K. SLONE Vice Chairman I 7. .FREEDMAK, Member L-R. TURTLE , Member