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HomeMy WebLinkAbout1988-0120.Patterson.89-05-10 ONTA RIO EMPLOY~-S DE LA COURONNE CROWN EMPLOYEES DE L'ONTARJO GRIEVANCE C,OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS · , 180 OUNDAS STREET WEST, TORONTO, ONTARIO. MSG IZ8- SUITE 2100 TELEPHONE/T~L~'PHONE t80, RUE DUNDAS OUEST, TORONTO, (ONTARIO} M5G lZ8 * BUREAU 2100 (416)598-0688 Z~-0/88 IN TIlE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Patterson) Grievor - and - The Crown in Right of Ontario (Ministry of Correc.tional Services) Employer Befo[e: J. Forbes-Roberts - Vice-Chairperson J.D. McManus - Member A.G. Stapleton - Member APPEARING FOR D.A. Crolla TEE GRiEVOR: -Counsel Gowling & Henderson Barristers & Solicitors AppEARING FOR M. Galway THE EMPLOYER: Staff Relations Officer Ministry of Correctional Services HEARING: August 4, 1988 The grievor, Ms. Juli Patterson, is a Correctional Officer II ("C.O.II") at the Sau]t Ste. Marie District Jail ("the Jail"). The Jail is a maximum security institution which employs approxi- mately thirty-five to forty (35 to 40) full-time C.O.s and twenty-five to thirty (25 to 30) part-time C.O.s, all of whom work rotating shifts, in addition there are a limited number of casual staff who can be used in'the event of vacation, illness etc. On February 7, 1988 the grievor was scheduled to work the 12:00 a.m. to 8:00 a.m. shift. She was also scheduled to work on February 6th and 8th. On January 20, 1988 the grievor made a written request to Mr. Richard Hattie to have February 7, 1988 off as a statutory holiday. The stat. holiday had been banked pursuant to article 19.3 of the collective agreement which states: 19.3 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 receive another day off. .I The grievor sought to "spend" her banked holiday pursuant to article 19.5 of the agreement which states: 19.4 Any compensating leave accumulated under sections 19.2 and 19.3 may be taken off at a time mutually agreed u~gn. Failing agreement, such time off may be taken in conJunctipn with the employee's ay_~_~- tion leav~ or regula~ day(s~ off, if requested - one (1) month in advance. (~mphasis added) Mr. Hattie took the grievor's request up with the ~ssistai~t Superintendent, Mr. J. Lake. They established that to g~ant the request would require scheduling another regular full-time employee to work overtime. As this was contrary to jail policy, the request for a compensating day was denied. The grievor was however, permitted to switch shifts with ~another employee, and' thus did in fact get February 7th off. Following the denial of her request for compensating time Ms Patterson filed a request alleging a breach of article 19.4. There is a considerable body of jurisprudence on this issue, - 2 - much of .it emanating from the Ministry of Correctional Services ("the Ministry"). Following re: Tremblay (G=S~B< ~85/81) (upheld by the Divisional Court) it seems clear that if the parties cannot agree on compensating time the second sentence of article 19.4 creates an absolute right f~r the employee to take the time in conjunction with vacation or regula~ daY(s) g~f. Hoverer. that is not the set of facts facing this Board. The grievor did not either request compensating time in conjunction with vacation or other scheduled time off nor'invoke her right to same. Rather she requested a day disassociated from any other scheduled time off. The Board is thus left to interpret only the first sentence of article 19.4. Clearly in the present case there was no mutual agreement between the parties. Unlike the second sentence, in the absence of such agreement the first sentence of article 19.4 does not provide any vested rights in the grievor vis a vis the timing of isolated compensating days off. The element of mutual agreement places a discretion in the hands of both parties. Just as the employee would be free to refuse a request made by the Employer to take a compensating day at a particular time, the Employer is free to refuse an employee's request. Even if this Board were to imply that there was an obligation on the Employer to exercise its discretion in a fair and non-discriminatory fashion, we would find that this require- ment had been met. The grievance is hereby dismissed. Dated at Toronto this l~th day of May, 1989. ~-~.Forbes-Roberts, Vice-Chairperson "~ Dis~nt" ~irhout ~rjt~ r~naon' ~ 3.D. ~¢Hanus, Bember A.G. Stapleton, [~embe~