HomeMy WebLinkAbout2013-0638.Higgins.14-12-17 DecisionCrown Employees
Grievance Settlement
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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#2013-0638
UNION#2013-0228-0040
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Higgins) Union
- and -
The Crown in Right of Ontario
(Ministry of Attorney General) Employer
BEFORE Felicity D. Briggs Vice-Chair
FOR THE UNION Seung Chi
Ontario Public Service Employees Union
Grievance Officer
FOR THE EMPLOYER Omar Shahab
Treasury Board Secretariat
Legal Services Branch
Counsel
HEARING
SUBMISSIONS
November 7, 2014
December 5, 2014
- 2 -
Decision
[1] Mr. Gary Higgins was a Court Services Officer (“CSO”) working at the Brampton Court
House. He filed a grievance that alleged the Employer has violated various provisions of
the Collective Agreement as the result of failing to pay him stand-by pay. By way of
remedy he requested a declaration that the Employer had breached the Collective
Agreement, stand-by pay for those instances when he should have been assigned stand-by
and damages.
[2] This grievance was heard at a med/arb session in accordance with Article 22.16.
Accordingly, this decision is without prejudice or precedent.
[3] There were further written submissions sent to the Board by agreement of the parties.
[4] The grievor became a Flexible Part Time working 1500 hours in approximately 2007.
[5] According to the grievor, prior to the fall of 2012 the Employer assigned some CSOs to
be on standby overnight in case there was a possibility that a judge presiding over a jury
trial might require the services of a CSO. This practice ended in the fall of 2012 and staff
was so informed at a meeting that the grievor did not attend. He was scheduled to work
overnight one night in October, November and December of 2012. In each instance he
received a call from his Employer saying that his services were not required. He was not
paid stand-by.
[6] The grievor retired and became a fixed term CSO in January of 2012. During his
employment in that capacity he received an email stating that he was scheduled to work
overnight on January 29, 2013. However, on January 29th at 2:00 p.m. the grievor was
told that his services were not required. He was not paid stand-by pay.
[7] The grievor claims that he should have been paid stand-by pay for these and other
instances.
[8] The Union submitted that according to Article UN 10 and UN 15 - which are identical
provisions – the grievor was entitled to be paid stand-by pay.
[9] The Union contended that the times for which the grievor is claiming stand-by pay were
“a period of time that is not a regular working period” and that he was “immediately
available”, thereby meeting two of the three criteria needed to be eligible for stand-by
pay as set out in the Collective Agreement. Finally, with respect to the final requirement
that the stand-by be “authorized in writing by the supervisor or expressly advised by the
supervisor prior to the stand-by period”, the grievor asserted that it was the practice at the
- 3 -
Brampton courthouse that an assignment of stand-by did not need to be so authorized.
The simple fact that he was scheduled to work overnight was sufficient authorization to
be eligible for stand-by pay.
[10] The Employer disagreed with the Union’s contentions. It was of the view that the grievor
was never authorized in writing or otherwise to stand-by and therefore is not entitled to
payment. Further, the grievor was not working during a “period of time that is not a
regular working period” and therefore does not meet two of the three needed criteria to be
entitled to stand-by pay.
[11] In its reply submissions the Union took issue with the Employer’s view of whether the
times at issue were “not a regular working period.” It was urged that the grievor had a
routinely recurring work period that met the requirement of the stand-by provisions.
[12] After consideration of the facts and submissions in this matter, I am of the view that the
grievances must fail. Simply put, I have no evidence that the grievor was “authorized in
writing” or “expressly advised” that he was being assigned stand-by.
[13] Both Article UN 10.3 and 15.3 state that “where stand-by is not previously authorized in
writing, payment as per UN 10.4 shall only be made where the supervisor has expressly
advised the employee that stand-by duty is required.” The grievor’s failure to meet this
criterion leads to a finding that there has been no violation of the Collective Agreement.
[14] Accordingly, the grievance is dismissed.
Dated at Toronto, Ontario this 17th day of December 2014.
Felicity D. Briggs, Vice-Chair