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HomeMy WebLinkAbout1987-1848.Henderson.88-08-26Between: I ONTARIO EMPLOY& OEM CO”RONNE CROWNEMPLOYEES DEL’ONI/IRIO ’ GRIEVANCE I CPMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 1. . ’ ‘i 1048/87 IN THB MATIER OF AN ARBITRATION Under THB CRONN EMPLOYEES COLLBCTIVB BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Before: For the Grievor: OPSEU (Mary Henderson) -and- Grievor The Crown in the Right of Ontario (Ministry of Health) Employer For the Employer: pearins: R. J. Delisle Vice-Chairman G. Caplan Member D. Montrose Member M. Ruby Counsel Gowling and Henderson Barristers and Solicitors K. Raymond Legal Counsel Legal Services Branch Ministry of Health June 29, 1988 . . DECISION The grievor claims that she was not properly compensated,for hours worked on July 12 and 13, 1987. The parties are agreed on the ~facts. The grievor was employed as a Psychiatric Nursing Assistant at the Whitby Psychiatric Hospital. The shift schedule for July, 1987, which was properly posted in accordance with Article 10 of the Collective Agreement, provided that the grievor work the No. 1 shift on July 12 and 13, i.e. she was scheduled to work from 0700 hours to 1530 hours on each of these dates. After the end .of the grievor's regular shift on July 12, 1987, she volunteered to work overtime to replace other staff members who were absent. As a result she worked overtime from 2300 hours on July 12 to 0700 hours on July 13 and then continued to work her regular shift on July 13 from 0700 hours to 1530 hours. The grievor was compensated at straight time pay for each of the 0700 hours to 1530 hour periods and at overtime premium in accordance with Article 13 of the Collective Agreement for the period 2300 hours to 0700 hours. The grievor claims that she is further entitled to an overtime premium in accordance with Article 10.2 of the Collective Agreement. The pertinent Articles provide: 10.2 "Every reasonable effort shall be made to avoid scheduling the commencement of a shift within twelve (12) hours of the completion of the employee's previous shift provided however, that if an employee is required to work before (12) hours have elapsed he shall be paid time and one half (It) for those hours that fall within the twelve (12) hour period." . 2 13.2 "In this Article, llovertimeV' means an authorized period of work calculated to the nearest half-hour and performed on a scheduled working day in addition to the regular working period, or performed on a scheduled day(s) off". 21.1 "There shall be no duplication or pyramiding of any premium payments or compensating leave provided by this Agreement". A major stumbling block in the grievor's path is a recent decision of this Board, Medland, 1199/86 (Kirkwood) handed down May 17, 1988. Counsel for the grievor agrees.that the Medland decision is on all fours with our situation and the decision is against him. He undertook to persuade us that Medland is manifestly wrong and ought not to be followed. The Medland decision followed earlier decisions of this Board in Morin, 74/77 (Adams), MUrohy, 593/83 (Palmer) and Gram, 1339/84 (Brent). In the Murvhv decision, affirmed by the Divisional Court, January 21, 1986, the grievor worked as his regularly scheduled and duly posted shifts 2300 hours to 0715 hours beginning on June 25 and June, 26. In addition he worked an overtime shift on June 26 from 0700 hours to 1500 hours and for those hours received an overtime rate. In Murvhv the grievor claimed he was also entitled to an overtime rate for the 2300 hours to 0715 hours shift beginning June 26 because the same was scheduled within twelve hours of the employee's previous shift which had ended at 1500 hours on June 26. The employer's position was that the "previous shift" referred to in Article 10 was the previous regularly scheduled shift which had ended at 0715 hours on June 26 and the employee was therefore not 3 entitled. The Board's decision however was that . ..the time of the completion of an employee's previous shift relates to when the actual period of work ended; not some notional point where the scheduled straight-time ended and overtime began. The Gram decision followed this line of thinking that a "previous shift" for the purposes of Article 10, would include both previously scheduled regular hours and the overtime hours that resulted from any extension. so too, in Medland: As we find that a shift includes the unit of time that constitutes a day's work as extend~ed by overtime then ,it does not make a difference in this context whether the overtime precedes or follows the hours worked at straight time. The period of time worked is not to be broken into shifts dependent upon the rate at which the time worked is paid. The Board has then been consistent in its interpretation of Article 10; and far from being manifestly wrong, appears to be an interpretation that the language can reasonably and properly bear. Indeed it is an interpretation that this panel can agree with. Counsel for the grievor was driven to accept that the hours worked from 2300 hours on July 12 to 1530 hours on July 13 were hours worked on one continuous shift and the hours worked from 0700 hours to 1530 hours on July 13 could not then attract an overtime rate as being hours scheduled within twelve hours of .a previous shift, 2300 hours to 0700 hours, Counsel sought then to argue that this entire shift, 2300 hours on July 12 to 1530 hours on July 13, was entitled to an overtime rate as it was a shift scheduled within twelve hours of the employee's previous shift from 0700 hours to 1530 hours on July 12. This argument must 4 fail however since Article 10.2 provides an overtime rate only "for those hours that fall within the twelve hour period.". Those hours however would be the hours of 2300 hours on July 12 to 0330 hours on July 13 and these hours have already been paid at the overtime rate and Article 21.1 proscribes duplication or pyramiding any premium payments. The grievance is accordingly dismissed. Counsel for the grievor expressed concern for the inconvenience, if not prejudice, to the employee sought to be guarded against by Article 10.2. by the Board's interpretations, but the parties can always subject those considerations to negotiation.~ Dated at Kingston this 26th day of August, 1988. R.J. Delisle, Chairpersm D. MontkoSe, Member