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HomeMy WebLinkAbout1988-0301.Bergsma.89-01-18 ONTARIO EMPLOY~S DE LA COURONNE CROWN EMPLOYEES DE L ~ONTARtO GRIEVANCE C,OMMISSION DE SETI'LEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, TORONTO, ONTARIO. MSG 1Z8- SUITE 2100 TELEPHONE/T£L,~PHONE ~80, RUE DUNDAS OuEST, TORONTO, (ONTARIO) MSG 1Z8- BUREAU 2100 (416) ~98,0688 0301/88 IN THE MATTER OF AN ARBITRATION under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT before THE GRIEVANCE SEI'FLEMENT BOARD Between: OPSEU (K. Bergsma) Grievor and The Crown in Right of Ontario (Ministry of Health) Employer Before: J.W. Samuels Vice-Chairpersonl L. Robbins Member D. Wallace Member For the Grievor: C.V. Hofley Counsel Gowling & Henderson Barristers and Solicitors For the'Employer: L. Norton Staff Relations Officer Human Resources Secretariat Hearing: December 21, 1988 DECISION The grievor is a child care worker 'at the Whitby Psychiatric Hospital. She claims that, on April 8, 1988, she was denied an overtime opportunity, and that this constituted a breach of Article 8 of the local agreement between the Employer and the Union. Article 8 of the local agreement provides: In order to maintain a fair opportunity for the assignment of overtime, each department or ward shall establish an overtime opportunity list. Where Management requires that overtime be worked, employees on the listing will be contacted first according to classification and with regard: for the nature of the work to be performed. Nothing in this Article shall interfere with the exclusive right of Management' to determine and assign overtime work. We first met on September 7, and at the outset of our hearing, the .Employer raised a preliminary objection concerning the scope' of Article 8 and whether the grievor's claim could involve a breach of this provision. 'The Employer argued that Article 8 did not interfere with management's exclusive right to .assign overtime, and the grievor was asking this Board to oversee the exercise of this exclusive right, which was beyond our jurisdiction. In a decision dated September 28, 1988, this Board ruled that we did have jurisdiction to consider the implementation of overtime allocation pursuant to Article 8. We said inter alia (at page 3): Article 8 does have something to say about the allocation of overtime. 'It says expressly th.at the panics intend that there be maintained "a fair opportunity for the assignment of overtime". Article 8 makes clear the overall criterion of the 3 overtime allocation system---employees must have a "fair opportunity" to overtime---and it sets out various elements which must be implemented in order to reach this overall goal. Firstly, management must establish an overtime opportunity list. In our view, it is not sufficient for management to simply establish whatever list it chooses. If the overarching requirement of the overtime system is to be met (providing the "fair opportunity" to employees), then necessarily the way in which the list is made up and administered is important. This Board has the jurisdiction to determine whether an employee has had a. "fair opportunity", and this would involve consideration of the overtime opportunity list, its composition and administration. We will now consider the overtime opportunity list, its .composition and administration, and the events on April 8, 1988. The grievor's claim relates to overtime which was assigned on Friday, April 8, to be done over the following weekend. When the supervisor called the grievor to ask her if she would work the overtime, the grievor was away from home and the supervisor received no answer. The supervisor then treated the grievor as having been offered the opportunity to do the overtime, and' she would not get another oppommity until the next rotation through the list. At our first day of heating, counsel for the Union told us that the gfievor would say that she was away from home on a work-related errand, and this meant ilaat she was not given a fair opportunity for the overtime. When our second day of hearing opened, counsel said that he was no longer suggesting that the grievor was away on a work-related errand, but rather he would argue that, because the grievor was due in to work at 2 PM that day, the supervisor should have waited until then to ask her if she wanted to do the weekend overtime.. 4 The grievor works 'in the adolescent unit in Cottage 5, which is the secure crisis intervention unit. In the morning on April 8, the staff was having considerable difficulty with a boy, and it was decided that, for the weekend, he would have' to be' restrained, wear a hockey helmet, and be · tended by two staff at all times, This meant that, over the weekend, five shifts would require an overtime employee. The assignment of the five overtime shifts was the responsibility of Mr. D. Beales, a supervisor classified as a Child Care Worker 3 (a member of the bargaining unit), In the midst of his hectic day shift, he sat down at around 11:30AM to call the employees on the overtime opportunity list. He followed the basic procedure, which is set out in writing in a notice posted where all staff can see it. He took the o~enime' opportunity list, which lists all staff in order of seniority. On the list he could see 'who had the next opportunity for overtime. Then he looked at the shift schedules to see who was already working on the five shifts in question. For any particular shift, he couldn't call someone who was .already working the shift. As well, he could not call an employee to work an overtime shift if this would mean that the employee would be working three shifts in a row. Of those who could be contacted, he would call the first person. If this employee was sick and not able to do the available overtime,, not at home, or not interested in doing any of the overtime shifts, he marked an "X" beside the employee's name. This would mean that the employee would be considered as having had the overtime opportunity during that rotation through the list. Then he would go to the next available employee on the list. If an employee accepted one of the overtime shifts, Mr. Beales marked in the shift to be worked. Mr. Beales had .to try twelve employees in order to fill the five overtirae shifts. The grievor'had been the fifth person called. He finished 5 this task around 12:15. Now he had time for lunch and completion of his other duties before his shi~t ended at 3:45PM. The testimony at our hearing disclosed that, at the time, some of the supervisors, who were regularly responsible for calling staff to arrange overtime, would generally wait to talk to an employee when the employee came in to work, if the overtime shift was to be worked on a later shift. On the other hand, other supervisors would not wait, and would simpty try calling by telephone, even if the employee would be in to work between the call and the overtime shift. Following Ms. Bergsma's grievance, the supervisors met and agreed that, wherever possible, they would wait until an employee came in to work to ask an employee to work overtime, unless it was necessary to make the arrangements before 'the employee came to work. It is necessary to leave the supervisor discretion in order to deal with the varie~ of situations that arise. In our view, the general working of the overtime opportunity system, as it was employed by Mr. Beales on April 8, was fair. The system was developed for the most part by the supervisors, who are bargaining unit employees. As new problems have cropped Up, they have modified the system. "Fairness" in this context involves consistency--that is, the employees should be treated equally, and given the same opportunity to do overtime. While there was some inconsistency at the time with respect to whether or not to wait' until an employee came into work to ask the employee to do overtime (which inconsistency has now been cleared up), in our view, even if the new agreed arrangement had been in operation on April 8, it was reasonable and fair for' Mr. Beales to get his task done immediately in the morning. He had five shifts to fill. It was a hectic day and he had many other tasks to do. With the grievor fifth on the list, had 6 he waited for her to come in at 2PM, he might not have been able to fill the five shifts by the time his shift ended at 3:45. Furthermore, given that he was trying to arrange weekend overtime, which would be quite disruptive for the employees who accepted the overtime, it was best if he could give the employees as much notice as possible so that they could rearrange their affairs in order to do the overtime. Both parties agreed that, generally, it is necessary to give an employee an "X" if there is no answer when the supervisor calls. If this were not the case, the system might be abused. It is important that the employees know how the. system works, and management did take appropriate steps to inform the employees..The grievor knew that, generally, if she wasn't at home to receive the supervisor's call, an "X"-would be placed beside her name. · One point however may be made about several hypothetical situations suggested to the supervisors who were witnesses. They were asked what they would do if their call was answered by an answering' machine, or by someone else at the employee's home. Some would just say "good-bye" and give the employee an "X", hence an overtime opportunity lost. Others would leave a message with the person for the employee to call back soon. One would leave a similar message on the answering machine. In our view, often there would be no inconvenience-to the supervisor to leave a message on the machine or with the person at home, asking the employee to return the call within a fixed time. In this way, an employee wouldn't lose an overtime opportunity merely because he or she is away from the phone for a very brief time. In particular, the answering machine (which, we were told, is used by many of the employees) enables the employee to leave the phone for short periods without missing a call altogether. The employee can tend a baby, or visit the washroom, or change a load of laundry, or go out in the yard to move a sprinkler, and can check the machine immediately upon returning to the phone. In many cases, it would be no trouble to the supervisors to leave a message.' In our view, where this is the case, and where the supervisor simply gives the employee an "X", the employee would not have had a fair opportunity to do overtime. This should be discussed by the supervisors and some modification made in their overtime system. In sum, we find that the overtime opportunity system was generally fair, and that, in particular, Mr. Beales' conduct on April 8 was eminently reasonable and fair. The grievor was given a f/fir opportunity to do overtime on April 8, given the circumstances of that day. For these reasons, her grievance is dismissed. Done at London, Ontario, this l~th day of J~.,~a,-y ,1989j - ~ ~.amuets, Vice-Chair.~..~::son D..W~llace, Member