HomeMy WebLinkAbout1987-2174.Cameron.90-12-28GRIEVANCE
iEzEMENT
ENPLOYtS OE ‘4 CO”RONNE OE “ONTAR,
CPMMISSION DE
REGLEMENT
DES GRtEFS
v. *
2174/07
IN THE N#ATTEB OF AN ARBITRATION
Under
TBE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
TEE GRIEVANCE EETTLEXENT BOARD
OPSEU (Cameron)
- aad -
The Crown in Right of Ontario
(Ministry of Correctional Services)
Grievor
Employer
BEFORE: P. Draper Vice-Chairperson
P. Klym Member
M. P. O'Toole Member
FOR TEE
GRIEVOR
R; Wells
Counsel Gowling, Strathy h Henderson
Barristers & Solicitors
FOR THE
Eb!PMYER
J. Benedict
Manager
Human Resources Management
Ministry of Correctional Services
BEARING: April 27, 1988 May 13, 1988
November 20, 1990
DECISION
The Grievor, Ken Cameron, grieves that on a number of
occasions during 1986 and 1987 he was not paid for travel time
as provided by Article 23.5 of the collective agreement, which
reads:
When an employee is required to travel on his regular day
off or a holiday listed in Article 48 (Holidays) he shall
be credited with a minimum of four (4) hours.
The Employer rests its case on the submisson that the
grievance is out of time. In effect, it is acknowledged that.
the Grievor was entitled to the rate.of pay now claimed but
that his action to recover it was taken too late. We note that
some time in the summer of 1987 the Employer's practice that
gave rise to the grievance was changed.
In our interim decision of July 20, 1988, we ruled that
the disposition of this case must await the decision of the
Divisonal Court on the application for Judicial Review of the
Board's decision Pierre, 492/86, a case which also called for
an interpretation of Article 27.2.1. of the,collective
agreement. The Court's decision, which upholds the Board's
decision, has now been reported: Ontario (Ministry of
Correctional Services) v. O.P.S.E.U., 74 O.R. (2d) 700.
,
Article 27.2.1 reads:
An employee'who believes he has a complaint or a
difference shall first discuss the complaint or difference
with his supervisor within twenty (20) days of first
becoming aware of the complaint for difference.
We are also concerned here with Article 27.2.2. which
reads:
If any complaint or difference is not satisfactorily
settled by'the supervisor within seven (7) days of the
discussion it may be processed within an additional ten
(10) days and with;
Article 27.14 which reads:
In the article, days shall include all days exclusive of
Saturdays, Sundays and designated holidays.
~I'he decisions of the Board and the Court in Pierre confirm
that the crucial time, for the purposes of Article 27. 2. 1, is
that at which the employee first becomes aware that a complaint
or difference exists under the collective agreement and of the
right to take steps to resolve it in accordance with the
grievance procedure. The time within which the employee must
act begins to run from the time when, in fact, he become aware
of the complaint or difference.
The Grievor's testimony is that on August 10, 1987 he
became aware that he had a,complaint based on Article 23.5.
Ordinarily, we would expect to hear evidence of circumstances
such as a meeting or an event that triggered a grievor's
awareness of a complaint or difference. Here, other than the
Grievor's statement that he had obtained a copy of the
collective agreement only a short time before August lOth,
there is no such supporting evidence. However, despite that
lack, we find no sufficient basis upon which to reject the
Grievor's testimony.
On August 24, 1987, that is, well within the time limit
prescribed in Article 27.2.1, the Grievor made his claim for
the pay to which he believed he was entitled under Article
23.5. The claim was denied on AuQust 26, 1987. The grievance
before.us was presented to the Employer on September 10, 1987.
Two Saturdays, two Sundays and Labour Day having intervened,
the time limit set out in Article 27.2.2 was therefore met. We
find that the grievance is timely.
On those occasions when the Grievor, a Correctional
Officer, at the Elgin-Middlesex Detention Centre, was required
to accompany inmates to and from Victoria Hospital on her
regular day off he claimed and was paid one hour's travel time,
the then practice of the Employer being to credit the employee
with one-half hour of travel time each way. We find that on
the occasions in question the Grievor should have been paid the
minimu&provided for in Article 23.5.
We see no prejudice to the Employer in awarding full
retroactivity in this case, in that the passage of time has not
put the Employer at a disadvantage either in responding to the
Grievor's case or in complying with the order now made.
It is hereby ordered that the Grievor be paid three hours'
pay for each of the thirty occasions on which he was required
to travel on his regular day off between June 1986 and June
1987 as set out in Exhibit I filed with the Board.
While we do not anticipate that the parties will have
difficulty in agreeing upon the quantum of the award, we remain
seized in that respect.
Dated at Toronto this 28th day of Decemkr 1990.
P. Draper, Vice-CLairperson
P. Klym, Member
a? 3 0 L%TzLfL
bf* G'Toole, Member