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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