HomeMy WebLinkAbout2010-1599.Ridsdale.13-05-17 DecisionCrown Employees
Grievance Settlement
Board
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Toronto, Ontario M5G 1Z8
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Commission de
règlement des griefs
des employés de la
Couronne
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
Téléc. : (416) 326-1396
GSB#2010-1599, 2012-0714
UNION#2010-0122-0012, 2011-0122-0018
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Ridsdale) Union
- and -
The Crown in Right of Ontario
(Ministry of Children and Youth Services) Employer
BEFORE Randi H. Abramsky Vice-Chair
FOR THE UNION Tim Mulhall
Ontario Public Service Employees Union
Grievance Officer
FOR THE EMPLOYER Karen Martin
Ministry of Government Services
Centre for Employee Relations
Employee Relations Advisor
HEARING May 9, 2012.
- 2 -
Decision
[1] This matter was presented pursuant to Article 22.16.7 under which decisions “have no
precedential value.” Both parties, and the grievor, were given a full opportunity to provide
relevant facts and argue their positions.
[2] The grievance alleges that the grievor, a Recreation Officer, is owed four hours of
overtime on each of two occasions when he worked an 8-hour shift and a Youth Service Officer
(not recreation trained) was given a 12-hour shift. On both occasions, there was an unplanned
absence that led to the available 12 –hour shift and the grievor was already scheduled to work an
8-hour shift. It was the Union’s position that the Employer should have offered the extra four
hours to the grievor and its failure to do so violated the Recreation Officer Overtime Protocol at
the time and/or the parties’ practice.
[3] The Recreation Department Overtime Protocol states that “[o]ff duty Recreation Officers
with the most seniority will be called first on occasions when a full shift is to be offered to a
recreation officer under this protocol.” On the days in question, the grievor was already
scheduled and, therefore, arguably was not off-duty for the dates in question. The Union asserts,
however, that the words “off duty” include the extra four hours in regard to the grievor’s 8-hour
shift, and that this was the practice. This was denied by the Employer. The Employer’s
witnesses asserted that the grievor was not off-duty on those dates, and it did not split shifts
except as a last resort in an “emergency-type” situation in order to provide recreation programs
to youth offenders.
[4] In terms of practice, the grievor stated that he was offered such extra hours on numerous
times, but that the practice was “off and on.” He also asserted that on a number of occasions in
the past when this did not happen and he complained, he was paid the overtime as a remedy.
The Employer was not aware of any such complaints or payments, but acknowledged that it was
possible that occurred at the Step 1 grievance level.
[5] The onus is on the Union to establish that the Employer breached its obligations under
the collective agreement. Based on the evidence presented, the Union did not meet its onus. The
Protocol itself is unclear regarding the meaning of “off duty” in terms of assigning a full shift.
The general understanding of that would be an officer who was not scheduled to work that day.
Its possible that it was given a broader meaning by the parties, but the evidence was divergent.
Even under the grievor’s recollection, the practice was inconsistent. Consequently, the evidence
does not establish that the grievor was entitled to the extra four hours under either the protocol or
an established and consistent practice. As a result, the grievance must be denied.
Dated at Toronto this 17th day of May 2013.
Randi H. Abramsky, Vice-Chair