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HomeMy WebLinkAbout1990-2355.McKegney.92-01-06 DecisionONTARIO EMPLOYES DE LA CROWN EMPLOYEES DEL ONTARIO G R I EVAN C E SETTLEMENT REGLEMENT BOARD DES GRIEFS COMMISSION DE TELEPHONE/TELEPHONE (4 16 326- 1388 180 DUNDAS STREET WEST. SUITE 2100. TORONTO, ONTARIO M5G 1z8 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO M5G 1z8 (4 16) 326- 1396 2355/90 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (McKegney) Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer BEFORE : S. Stewart J. C. Laniel R. Scott Vice-Chairperson Member Member FOR THE B. Hanson GRIEVOR Counsel Cavalluzzo, Hayes & Shilton Barristers & Solicitors FOR THE C. Foster EMPLOYER Grievance Administration Officer Ministry of Correctional Services HEARING November 26, 1991 D ECI SI ON The parties agreed on the relevant €acts giving rise to the grievance. The statement of facts as amended upon the agreement of the parties at the hearing provides as follows: 1. 2. 3. 4. 5. The grievance dated on November 30, 1990, was filed by Ms. Ellen McKegney, a regular part-time (RPT) correctional officer 2 at the Elgin- Middlesex Detention Centre. The grievance states: "That management did not allow me the choice of statutory time for working the November 11, 1990 holiday" (attached as Exhibit 1) The grievor and Ms. Gail Cecchin became regular part-time correctional officers in October of 1989. From August of 1983 to October of 1989 the grievor was a full-time classified correctional officer. Ms. McKegney and Ms. Cecchin are the only two RPT correctional officers who have worked at Elgin- Middlesex DC. In May of 1990 the personnel clerk at Elgin- Middlesex DC notified Mr. Paul Downing, Assistant Superintendent Corrections, that she had credited both Ms. McKegney and Ms. Cecchin in the following manner. Gail Cecchin October 9, 1989 credited 8 hrs. lieu did not work November 11, 1989 credited 8 hrs. lieu did not work December 25-26, 1989 credited 8 hrs. lieu did not work January 1, 1990 credited 8 hrs. lieu worked April 13, 1990 credited 8 hrs. lieu worked 2 April 16, 1990 credited 8 hrs. lieu - did not work Ellen McKegney October 9, 1989 credited 8 hrs. lieu - did not work November 11, 1989 credited 8 hrs. lieu - did not work December 25-26 1989 credited 8 hrs. lieu - did not work January 1, 1990 credited 8 hrs. lieu - did not work July 1, 1990 credited 8 hrs. lieu - worked November 11, 1990 credited 8 hrs. pay - worked. (no choice) 6. 7. 8. 9. 10. 11. Mr. Jack Huber, Deputy Superintendent, Elgin- Middlesex DC met with both Ms. McKegney and Ms. Cecchin in May, 1990, and advised them that management would no longer provide them with lieu time when they did not work. Management advised them that when they did not work on a holiday listed under Article 66.1.1 they would receive neither lieu time nor pay and that when they worked on such a holiday they would receive pay only under Article 66.1.2 and 66.2 of the Collective Agreement . June 7, 1990 - Ms. Cecchin filed a grievance (Exhibit 4 ) Management, the Union and Ms. Cecchin settled this grievance. Copy of settlement attached (Exhibit 5) Ms. McKegney did not choose 8 hours lieu for July 1, 1990. (Exhibit 2) Ms. McKegney choose 8 hours lieu time for November 11, 1990 and was refused. (Exhibit 3) The parties request that the Board provide 3 them with an interpretation of Article 66.1.2 and 66.2. Does this article give an RPT employee the choice between 8 hours lieu tine or 8 hours pay. 12. The parties agree that no further evidence will be presented before the Board. As the agreed facts indicate, the relevant provision of the Collective Agreement is Article 66, which provides for holiday pay for regular part-time employees. Article 66 provides as follows: ARTICLE 66 HOLIDAY PAYMENT 66.1.1 An employee shall be entitled to a paid holiday each year on each of the following days which fall on a day that is a regularly scheduled work day for the employee: New Year's Day Good Friday Easter Monday Victoria Day Canada Day Civic Holiday Labour Day Thanksgiving Day Remembrance Day Christmas Day Boxing Day Any special holiday as proclaimed by the Governor General or the Lieutenant Governor. 66.1.2 An employee shall be compensated for each of the holidays to which he is entitled under sub-section 66.1.1. The compensation shall be equivalent to that of his regularly scheduled working day, but shall not exceed seven and one-quarter (7-1/4) or eight (8) hours, as applicable. 66.2 When an employee works on a holiday listed in sub-section 66.1.1, in addition to any cornpensation to which he may be entitled under sub-section 66.1.2, the employee shall be paid at the rate of two (2) times the basic hourly rate for all hours worked with a minimum credit of the number of hours in his 4 regularly scheduled working day. This section does not apply to employees in classifications assigned to schedule 6. 66.3 In addition to any compensation to which he may be entitled under sub-section 66.1.2, an employee in a classification assigned to schedule 6 shall receive equivalent time off for work on a holiday listed in sub-section 66.1.1. Counsel made reference to a number of other provisions of the Collective Agreement in their submissions. Of particular significance are the provisions of the Collective Agreement dealing with holiday payment for full- time employees, which provide as follows: ARTICLE 48 HOLIDAYS 48.1 An employee shall be entitled to the following paid holidays each year: New Year's Day Good Friday Easter Monday Victoria Holiday Canada Day Civic Holiday Labour Day Thanksgiving Day Remembrance Day Christmas Day Boxing Day Any special holiday as proclaimed by the Governor General or Lieutenant Governor. 48.2 Except as provided in section 48.3 when a holiday specified in section 48.1 falls on a Saturday or Sunday or when any two of them fall on a successive Saturday and Sunday, the regular working day or days next following is a holiday or are holidays, as the case may be, in lieu thereof, but when such next following regular working day is also a holiday the next regular working day thereafter is in lieu thereof a holiday. 5 48.3 Those employees whose work schedules 'are subject to rotating work weeks which include scheduled weekend work on a regular or recurring basis shall have the Canada Day, Remembrance Day, Christmas Day, Boxing Day and New Year's Day holidays designated as July lst, November 11, December 25, December 26, and January 1st; respectively, and section 48.2 all have no application to these employees in respect of these holidays. ARTICLE 19 HOLIDAY PAYMENT 19.1 19.2 19.3 19.4 19.5 Where an employee works on a holiday included under Article 48 (Holidays), he shall be paid at the rate of two (2) times his basic hourly rate for all hours worked with a minimum credit of seven and one-quarter (7 1/4), eight (8) or the number of regularly scheduled hours as applicable. In addition to the payment provided by section 19.1, an employee who works on the holiday shall recieve either seven and one-quarter (7 1/4) or eight (8) hours pay as applicable at his basic hourly rate or compensating leave of seven and one-quarter (7 1/41 or eight (8) hours as applicable, provided the employee opts for compensating leave prior to the holiday. It is understood that sections 19.1 and 19.2 apply only to an employee who is authorized to work on the holiday and who actually works on the holiday, and that an employee who, for any reason, does not actually work on the holiday shall not be entitled to the payments described herein. When a holiday included under Article 48 (Holidays) coincides with an employee's scheduled day off and he does not work on that day, the employee shall be entitled to another day off. Any compensating leave accumulated under sections 19.2 and 19.4 may be taken off at a time mutually agreed upon. Failing agreement, conjuction with the employee's vacation leave such time off may be taken in 6 or regular day(s) off, if requested one (1) month in advance. 19.6 19.7 Any compensating leave accumulated under sections 19.2 and 19.4 in a calendar year which is not used before March 31 of the following year shall be paid at the rate it was earned. Effective March 1, 1978, the March 31 date may be extended by agreement at the local or ministry level. Notwithstanding anything in Article 19, employees who are in classifications assigned to Schedule 6 and who are required to work on a holiday schedule included in Article 48 (Holidays) shall receive equivalent time off. There are two issues that are in dispute between the parties. obliged to compensate regular part-time employees only for work actually performed on the days listed in Article The first issue is whether the Employer is 66.1.1. as the Employer contends, or whether the obligation extends to situations where an employee does not work. The second issue is whether an employee who is entitled to compensation in connection with a holiday is entitled to a choice of whether he will receive monetary payment or time in lieu of payment. At the request of Mr. Hanson we record his statement that the Union's decision not to advance an estoppel argument was made without prejudice to any position the Union may take in any future proceeding. Since an estoppel argument was not raised, we will make no reference to past practice. We will first deal with the issue of the extent of the employees for the holidays listed in Article 66.1 .1 of the Collective Agreement After reviewing the relevant provisions of the Collective Agreement and the submissions of the representatives of the parties, it is our conclusion that the Employer has an obligation to compensate regular part-time employees for the holidays listed in Article 66.1.1 not only in instances where the employee actually works on the holiday. Article 66.1.1 clearly stipulates the circumstances in which a regular part-time employee will be entitled to a paid holiday. To be entitled to a paid holiday the holiday must "fall on a day that is a regularly scheduled work day for the employee". The language chosen by the parties in relation to compensation for holidays for full-time employees, reproduced above, in contrast to the language in Article 66.1.1, reinforces our conclusion that entitlement to a paid holiday for regular part-time employees is conditional on the holiday falling 66.1.1, the day must be a "regularly scheduled work day" in order for there to be entitlement. In these circumstances on a regularly scheduled work day. A regular part-time employee will not necessarily receive a paid holiday for all the holidays listed. In accordance with Article and only in these circumstances, is a regular part-time employee entitled to a paid holiday. 8 Article 66.1.2 sets out the compensation to be paid to those regular part-time employees who are entitled to the holidays listed in Article 66.1.1. Accordingly, if an employee is not required to work on a holiday that falls on a regularly scheduled work day, he is entitled to be compensated for that holiday, in accordance with Article 66.1.2. We agree with Mr. Hanson's submission that when Article 66.2 provides for payment to an employee at the rate of two times his hourly rate when an employee works on a holiday listed in Article 66.1.1, "in addition to any compensation to which he may be entitled under sub-section 66.1.2", it is necessarily implied that there will be circumstances in which payment is required even when the employee did not work on the holiday. We cannot agree with Mr. Foster's submission that Article 66.1.2 exists to set out the basis upon which payment for holidays worked is to be calculated. Article 66.2 sets out in detail how compensation is to be calculated when an employee works on the holiday. To accept Mr. Foster's submission in this regard would be to deprive Article 66.1.2 of its plain meaning. As well, the acceptance of this position would be to undermine the clear language of Article 66.1.1 which provides for entitlement to a paid holiday on the express basis, and, we emphasize, only on the basis, that the day must be a regularly scheduled work day. We note parenthetically that in a work place such as a correctional 9 institution, which operates on a continuous basis, it would seem probable that a employee would work on every holiday that fell on his or her regularly scheduled work day. However, there may be circumstances in which adjustments are made to work schedules during a holiday period which would result in an employee not working on a regularly scheduled work day on which a holiday falls. In those circumstances an employee would be entitled to compensation in accordance with Article 66.1.2. When an employee actually works on the holiday he would be entitled to additional payment in accordance with Article 66.2. We turn now to the second issue, whether an employee who is entitled to be compensated for a holiday is entitled to a choice of monetary compensation or equivalent time off work. Mr. Hanson conceded that an employee who works on a holiday would not be entitled to the choice of payment or time off in lieu of payment with respect to compensation under Article 66.2. However, it was his submission that an employee who is entitled to a paid holiday pursuant to Article 66.1.1 is entitled to the choice of monetary payment or lieu time by virtue of 66.1.2. Mr. Foster argued that the language of Article 66 of the Collective Agreement does not support such an interpretation. Mr. Hanson emphasized the fact that Article 66.1.2 of I@ the Collective Agreement states that an employee "shall be compensated" instead of stating that the employee will "be paid", as is provided elsewhere in the Collective Agreement. He also emphasized the fact that Article 66.1.2 provides that the compensation "shall be equivalent to" the employee's regular scheduled working day. In Mr. Hanson's submission, the language chosen by the parties in Article 66.1.2 reflects an agreement that an employee would be entitled to the option of payment or compensating time off in lieu of payment. While we found Mr. Hanson's argument to be attractive, we did not find it to be compelling. We agree with Mr. Hanson that the word "paid", which is used elsewhere in the Collective Agreement, more clearly denotes monetary payment than the word ''compensation". However, as Mr. Foster noted, where the parties have agreed to time off in lieu of payment, as in Article 19.2, for full-time employees for holidays worked, and in the case of overtime hours worked for both full-time employees (Article 13) and part-time employees (Article 64) the parties have explicitly set out that agreement. As both Mr. Hanson and Mr. Foster argued, it is necessary for the Board to consider the provisions of the Collective Agreement as a whole in determining the appropriate meaning to be given to a particular provision. Given the fact that the parties have specifically provided 11 for leave in lieu of payment elsewhere in the Collective Agreement, the fact that they have not done so in this instance compels us to conclude that they did not intend to do so. Mr. Hanson is correct in his submission that the effect of this interpretation is that a regular part-time employee who is otherwise entitled to a paid holiday but works on a holiday will not receive a paid holiday, in that the employee will not receive a day off with pay. However, the employee will, in effect, receive triple payment for the holiday worked. This matter does not cause us to doubt our conclusion that Article 66.1.2 does not provide an employee with a choice of payment or time off in lieu of payment for holidays an employee is entitled to under Article 66.1.1 of the Collective Agreement. The grievance is disposed of in accordance with the foregoing. parties experience any difficulties in connection with the impl eme ntation of this deci s ion. We will remain seized in the event that the -12- Dated at Toronto, this 6th day of January, 1992. S.L. Stewart Vice-Chairperson J. R. Scott Member J. C. Laniel Member