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Home My WebLink About1987-2513.Union.88-12-13EMPLOY& DEL.4 co”*oNNE DEL’ONT*RIO CPMMISSION DE REGLEMENT DES GRIEFS Between: IN THE MATTER OF AN ARBITRATION THE CROWN EMPLOYEES COLLECTIVE BARGATNING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (Union Grievance) - and - The Crown in Right of Ontario (Ministry of Health) Before: -- N. V. Dissanayake, Vice-Chairperson J. Solberg, Member E. Orsini, Member For the Grievor: R. R. Wells Counsel Gowling & Henderson Barristers and Solicitors For the Employer: Laura Pettigrew Counsel Human Resources Secretariat Treasury and Economics HEARING: November 25, 1988 2513187 Grievor Employer i . This is a ur;ion grievance alleging that the F,mpioyeF ?? a s "failed to pay the proper overtime rate to unclassifjed emF:nyees in. th.e Dietary Department at the Mepta: Health Centre, ?enetangulshene, ir! accordance with ArtlG:e 3.4 of the Collective Agreement". At the commencement of the hearing, the parties a.dvised the Board that they were able to resolve the merits of t-tie grievance and j@int;y requested that the Board make the fcllowing order: This grievance addresses the situation. of WGlaSsified part-time employees ir? th.e Qietary DepartmeEt at the Meltal Fealth Centre, Penetanguishene, who work rotatir?g shift.s p@sted approximately f:fteen days in advance and may work hours in addition to thnse sGheduled finurs. T h e Soard de,Glare.S that these employees, when they perform authorized hours of work in excess of eight in any day, shell be paid at the overtime rate for those hours in excess r.f eight, in accordance with article 3.4(a) of the Collective Agreement. Pursuant to the joint request of the nartles, the Board hereby makes a declaration in the terms set Out above, There remains one dispute which the parties were unable to resolve. Cnijnsel for the Employer takes the position that the only appropriate remedy is the declaration as agreed I. i i. 3 to by the part:es;. she opposes the union's request that the Soar-d shoii:d also award compensation to the employees who were de3ieii their right to overtime rates as a result of the ?ing:oyer's contravention of the collective ~agreement. The 9OZTd htt%Td SEbmi.SSiOnS Ol? this ISSUe. Counsel for the Employer points oijt that the co1 lecti-ge agreeiiient recognfzes separate grievance procedil?es ? IFdiVidLial *Cd mQ!liO?7 grievances and that each has it OWT! . ?roc:er,ure: ^ requ:renents and time limits. She slibmlts that if the Rn-rr' were to - .n- .' award compensation to individ:ia: employees ir: redres.sing a ilcilon grievance, that will enable iZdiVldli?l elilp:OyPr?.S to circumvent the procedural requirements apd time .L Iiiiji 6.S set 0 ii t i 7. the agreement for fl1lr.g fndfvidua: grievances. Despite coiinsel's able submissions, after a brief Tl?CCSS the 5?.0srd rul cd that the Board will grant t%e compcnsa~tikin relief as reqilested by the union;.. The Board has recognized that the collective agreement contains mutually exclusive procedurea for individual and iiriOl?l grievances. Therefore, where a grievaxe has beep f i 1 PC! under t?!e improper procedure, it is oaen to the Employer to object to th e arbitrability of th-at grievar3ce‘ particlilarly is .LL there is ari A attempt to circ7imv~nt the co::ectfve agreement's.~ time Ifmits. The Fcoard thus has the ability to prevent the kind of abuse contemplated by the Employer. riowever , in the case before us there js no suggestion t:qst the ixiiOr;_ grievarce iE ai.iestia3 is inarbitrable. Wat cori>+r; Sii'brni ts is that ff the emglnyees ciesj ;-efi t 0 recover lost over::me pay : t -fi e y s k? o 1.1 1 6. h a v f f i : e d .i I;. d : v i d 7.7 a 1 grS evances . Ir? mary S>tiietlOnS, where an Employer policy affects a Pi.iillbt?!r Of emg:oyess; it becomes open f 0 r eack eiiilpl0yW? t0 file an IWAjVjd7iaj grievapce, while at the .same time the union becomes entit:ed to .fi:e F, ;:r;ion grievance as 5 party to t:he contract that had been contravened. ;n these circumstances where a union grievance is appropriate, and wtiere t3e Board find.s a violation, there is nothing 55 the collective agreement or the Crown Emnlnyees Collective Barqainina Act wh;ch restricts the Board's ability to fully redress the grievance i The Board h~as the authority, and indeed the duty, to remerjy the grievance to the fiille.St possib:e extent. (.See, II - . . _ _ "'TIT::: a.nd Carol 8erry et al v. T?ie Crown (Ministry of Cornmimi tv azd Social Services 9,iv:s5ona: Colirt of --- 1 orztar; n>, iinrep3rteci) . 19. 1qiir view the distinction dral%E irz the collective agreement hetwee5 Indiv;dnal ad iir?ion grievances is purely procedara; and has ~othir?g to do with the Board's remedial aiithority. ; n certaj~ri cSrci.imstances a grievar?ce may be Inarbitrable as a u;iior grievance, Eowever , where it is sn arbitrable the Soar& iras the power to provfde frill redress, inCl7iding a "malie who1 e" remedy piittinq t're affected emploj:eeS IE the poslti.on they w,qi.;:d have been. brit for the coP.tra~ve?.tiOP.. II? the present case as a result of the contravention, a r! u m '0 e r Of etWJ:0ye,e.5 i n t:re affected class were denied eve:-tine pilymer:ts to whjc-ti thev were entjtled to under article I3 . 4 .(4i. Tb.e Zinpl oyer ' s refusal to pay o-vertime was not predicated 0.5 each employee's indlvldua: circumstances. All employee-s in the class were equally affected. In these cj rcumstances 5t does fiat make any sense to require each employee to go through the indlvidxal grievance procedure. For instmce: it would be senseless to rewire separate meetings i-retweerr each employee and his or her supervisor at ttie compzalnt stage. This appears to the Board to be a most inefficient an? 1 litigious way of re.solvir?g the siwation. In 0 ii r 7.7 i e w , I 3 t 3 e absence of a clear indication in ttie ico::ective agjreemeilt that the Board's remedial authority does r.ot germit it to redress :ndivldua: employees, the 3oard is not irclined to infer that the parties intended such a result. 0 p 5 2 T! ::nion Grievar;.ce (Kiristry of Natiiral Resollrcesl G.S.Ri __- 25;6/57. Zr? summary, the Soard finds that where, as here, a union grievance is properly hefore the Board, there is nothing that prever?ts the 3oard from prowlding redress to individual employees who are af fected by the grievance. The Board finds that employees wio were denied overtime pay as a resillt of the / ~1 1, . !. , ErnD] ClvFzr ’ s -_ _ failure t0 comply with article 3.4(a) should he c 0 m p e n s a. t e a ; a n a so a:irects, This direction will he retroactjve to twenty days preceding the date of f::ir?g of this gl- ievance , The 9oard remains seize6 in the ever?t of any d?.ffic:ulty iE the implemon;a.tios. Dated t%is 13th day of December, 1988 at Hamilton, Ontario. B&h‘ Nima; V. Dissanayake Vfce-Chalrper.son ..T , Solberg ,& Member