HomeMy WebLinkAbout2013-4335.Kennett.15-03-02 DecisionCrown Employees
Grievance Settlement
Board
Suite 600
180 Dundas St. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Fax (416) 326-1396
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#2013-4335
UNION#2014-0108-0020
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Kennett) Union
- and -
The Crown in Right of Ontario
(Ministry of Community Safety and Correctional Services) Employer
BEFORE Felicity D. Briggs Vice-Chair
FOR THE UNION Gregg Gray and Nick Mustari
Ontario Public Service Employees Union
Grievance Officers
FOR THE EMPLOYER Greg Gledhill
Treasury Board Secretariat
Centre for Employee Relations
Employee Relations Advisor
HEARING February 25, 2015
- 2 -
Decision
[1] The Employer and the Union at the Elgin Middlesex Detention Centre agreed to
participate in the Expedited Mediation-Arbitration process in accordance with the
negotiated Protocol. Many of the grievances were settled through that process. However,
this grievance remained unresolved and therefore requires a decision from this Board.
The Protocol provides that decisions will be issued within a relatively short period of
time after the actual med/arb sessions and will be without reasons. Further, the decision is
to be without prejudice and precedent.
[2] The grievance of Richard Kennett was on the agreed upon list of matters to be dealt with
at the recent two day med/arb process. However, the Board was informed that the grievor
told the Union representatives that he was not having his grievance heard at the med/arbs
preferring instead to have the matter be set for a separate hearing.
[3] After discussion with the parties I ruled that I would hear and determine this grievance at
the med/arb session. It seemed to me that the nature of the grievance was precisely of the
sort that is well suited to the med/arb process.
[4] I then directed the Union to speak with the grievor and give him the opportunity to
address the Board directly. I also asked the Union that it be made clear to the grievor that
if he failed to show I would rely on the Union’s representations on his behalf. The grievor
refused to appear and we continued in his absence.
[5] Mr. Kennett is a Correctional Officer who filed a grievance on January 29, 2014 which
stated:
I grieve that that (sic) management has violated in particular, but not
limited to, Article 2 (Management Rights), Article 3.2 (Discrimination
Union Membership) and COR. 8.5 (Overtime at Compensating Rate).
Bargaining Unit members in acting Management positions are allowed to
receive compensating leave in lieu of payment at the overtime rate.
Bargaining Unit members that are not in acting management positions are
not afforded the same entitlement and are being discriminated against
based on their union affiliation.
- 3 -
[6] By way of remedy he requested:
Full redress. All bargaining unit members, regardless of their status, be
afforded the opportunity to earn compensating time when working
overtime.
[7] No doubt as the result of the grievor not attending the med/arb session the Union was
unable to provide evidence that the Employer has been agreeing to compensating leave to
Correctional Officers who have been assigned to act temporarily as Operational
Managers. However, for the purposes of this decision, I will assume that assertion is a
matter of fact.
[8] After hearing the submissions of the Union and the Employer, I am of the view that this
grievance must fail. As noted by the Employer, COR 8.5 which is the provision that sets
out the terms of overtime for Correctional Officers, begins with the predicate, “Where
there is mutual agreement”. It is apparent that the Employer is – in most instances - not
agreeing to provide compensating time off for overtime time worked by members of the
bargaining unit but there is nothing in the Collective Agreement that obliges it to do so.
[9] By the clear terms of Article COR 8.5 both the Employer and the employee have the right
to refuse compensating time rather than monies for working overtime. That the Employer
refused to “mutually agree” is not a violation of the Collective Agreement. Further, there
was no evidence of discrimination based on Union affiliation that would lead to a finding
that Article 3.2 has been breached.
[10] Accordingly the grievance is denied.
Dated at Toronto, Ontario this 2nd day of March 2015.
Felicity D. Briggs, Vice-Chair