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HomeMy WebLinkAbout1988-0610.Pento.89-08-11~ .' + ~' ONTARIO EM~oLOY~-S DE LA COIJRONNE - ~ '~ ", CROWNEMPLOYEE$ DEL'ONTARiO GRIEVANCE CQMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS · 180 OUNDA$ STREET WEST, TORONTO, ONTARIO. M5G 1Z.8- SUITE2100 TELEPHONE/T~'I.~PHONE 180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) MSG ;Z8- BUREAU2100 (416) 598.0688 610/88 IN THE ~ATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (A. Pento) Grievor - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer Before: M.V. Watters Vice-Chairperson F. Taylor Member P. Camp Member For the Grievor: M. Bevan Grievance Officer Ontario Public Service Employees Union For the Employer: C. $1ater Senior Counsel Management Board of Cabinet Bearings: November 24, 1988 May 23, 1989 This proceeding arises f~c~¥, the grievance of Ms. Anna Pento dated June 20, 1988, the material part of which reads as follow~: I grieve that the emplo~ has failed to pay ~ overtime perfon~od on Easter Fmnday in preparation for the O.G,P.S. Refresher Course. SETI~.~ DESIRED · That I receive pay in accordance with Article 19 of the collective agreemant for 8 hours ~Drked on Easter MDnday." The evidence presented on behalf of the Union ~as as follows: (i) The grievor is employed as a patrol ~ in the Ministry of the Solicitor General. She is classified as a Security Officer 2. This position requLres her to assist with the maintenance of security and order in gove~-m-~nt buildings. Her primary posting is the MacDonald Complex. The grievor is supervised by. Mr. S. Channon, the pat_~ol Supervet for Platoon B~ (ii) In mid-February, 1988 the grievor ~s notified in writing that she was scheduled to attend the Ontario Government Protective Service Refresher Course %o be held at the Provincial Police Academy in Brampton, Ontario frc~ April 5 to April 8, 1988 inclusive. (iii) It w~s not until Tuesday, March 29, 1988 that the grievor r~ceived the course material which ~s appended to a letter dated March 24, 1988 frc~ Mr. R. W. Chandler, Superinte~ nt-Director, to Staff Sergeant R. Arbour. This letter, which ~s initialled by the Sergeant and her supervisor, read in part: "The acccml0anying booklets are for distribution to the O.G.P.$. n~mbers indicated on-the attached list. These members are atter~_._]_ng the O.G.P.S. Refresher Course at the Academy, starting April 5, 1988 and ~ust complete the booklets prior to the start of th~ course. Please distribute the booklets and make the ~-,-,m-~*~%ers a~ar~ of the following M(rections ~ 1. Complete nodules A through E (m~/ules F and G are for information only). 2.If you hav~ difficulty with a module, do the best you can and mov~ O 3. A test on the booklet will be given on tbs first day of the cottrse." (Ex. 4) The course material ~s approximately one hundred and t~_nty (120) pages in length. Modules A through E accounted for approximately the first eighty-five (85) pages. Each ~odule contained substantive material on aspects of security ~ork together with a series of questions to be ~. Sample responses w~re also provided in the booklet. It wins the grievor's testimony that she considered the instruction to complete the modules prior to the sta_rt of the course as a ~ rect order fmcs-, her superiors. (iv) The grievor ~rked day shifts on Tuesday, March 29th and Wednesday, Mazch 30th, 1988. She testified that during these shifts, she did not have an opportunity to commence the course ~ork as her time w~s utilized in the performance of her regular patrol responsibilities. The grievor estimated that possibly one (1) hour of the fonTer shift could have been used for the course ~ork. Thursday, March 31st, 1988 w~s an off day for the grievor. She stated that she did not have the time to ~ork on the material during such day as she had to "catch-up" on domestic chor~s such as banking, shopping, cleaning, etc. The grievor worked the night shift on April 1, 1988 which w~s Good Friday. During that day, she rested in preparation for the shift. While sb~ did not engage in any of the course work when she subsequently w~nt on shift, it ~as her estimate that one (1) to t~D (2) hours in total could have been available to work on the material. Such ti~e, ho~=ver, ~mald not have been consecutive, but rather would have been segmanted bet~=en her patrol efforts. Saturday, April 2nd,. and Sunday, April 3, 1988 ~ scheduled days off. On the format, the grievor slept after having ~rked the nlght shift on the prec_~4~ng evening. Thereafter, she arranged dinner for h~r husband and relaxed for the balance of the day. On the latter day, which was Easter Sunday, the grievor spent tin~ with her parents as had been arranged prior to the receipt of the course material. For all of these reasons, it w~s the grievor's evidence that Easter Monday ~s her fLrst opportunity to tackle the modules. She stated that it took her slightly ov~c eight (8) hours to cc~plete the packag~ on that day. (v) The grievor conceded that she did not speak to her supervisor about the ccmpletion of the. material subsequent to its receipt on March 29, 1988. As noted above, it was her assessment that the letter r~ceived on that date constituted a direct order to complete the mod~,].es. In her estimation, she did not have any alternative but to complete sams prior to the c<a;,¥encem~nt of the program on April 5th, 1988. This necessitated the time spent on Easter Fmnday. The grievor expressed the opinion that she would have had a ~uch better opportunity to review and complete the course work had it been given to her in either January or February of 1988. (vi) Mr. Joe Alaksa, another Security Officer 2, testified that he had taken the Refresher Course in February, 1988. At that time, the material was not handed out in advar~e. Instead, the officers r~ceived and complet~ it on the 4 first day of the course. It ~as his evidence that insufficient time was given to complete it and for that reason a rec~tion w~s made at the end of the program to the effect that the m~ules should be made available prior to arrival at the Academy. Mr. Alaksa, who is posted at the Legislature, did not believe that an officer could complete the material on either the day or night shift given the need to engage in regular patrol duties. Mr. S. Channon, the grievor's supervisor, ~as the sole witness called by the Empl~. He reviewed the grievor's log book for March.29th, 30th, and April 1, 1988 and concluded therefrom that the respective shifts w~re not busy. In his estimation, the grievor should have had sufficient ti~ therein to complete the course ~rk. It was his evidence that such work could be done by an employee during their regular tour. Mr. Channon testified that the grievor was permitted to take nums~ breaks during which she could have worked on the material. The supervisor believed that up to three (3) to four (4) hours could have been used on each of the day shifts for this purpose. Additionally, Mr. Channon estimated that approximately six (6) hours was available on the Good Friday night shift as the grievor's assigned patrols should not have taken longer than t~D (2) hours to complete. He did not consider Mr. Alaksa's experience as being comparable, at least during the day shift, as this g~ntl~man was required to stand at the Legislature in such a fashion as ~uld preclude the reading of course material. It m~s Mr. Channon's assessn~nt that Mr. Alaksa ~Duld have a lesser opportunity to complete the modules while on shift. Mr. Channon testified that the grievor did not d{~uss the course work with klm subsequent to March 29, 1988 despite their daily opportunities for contact. Specifically, he stated that she did not ask for additional time to complete the ~ork while on shift. Further, she did not n~ntion the possibility 5 of doing such ~Drk on either a. rest day or on the holiday. It .was Mr. Channon's evidence that he would have refused any request for overtime had such been advanced given that there was sufficient time to complete the material during the shift. He first learned of Ms. Pento's claim for premium paymant on her return to ~ork on April 12, 1988. The supervisor also advanced the opinion that discipline ~uld not be imposed on any officer who failed to complete the course materials prior to the commencement of the program. In his view, they w~re · simply obliged "to do their best". The relevant articles of the collectiv~ agreement read: ARTICLE 19 - HE~IDAY PAYMENT 19.1 Where an employee ~Drks on a holiday included under Article 48 (~olidays), he sb~ll be paid at the ra~e of two (2) times his basic hourly rate for all hours ~rked with a minimum credit of seven and one-~ (7 1/4), eight (8), or the number of regularly scheduled hours, as applicable. 19.2 In addition to the payment provided by sect/on 19.1, an employee shall receive either seven and o~]uarter (7 1/4) or eight (8) hours pay as applicable at his basic hourly rate or ~ting leave of seven and one- quarter (7 1/4) or eight (8) hours as applicable, provided the employee opts for cc~pensating leave prior ARTI_~_?. 48 - H~LIDAYS 48. i An employee shall be ehtitled to the following holidays each ~ New ¥~r's Day G~d Friday Easter Monday Victoria Day Canada Day Civic Holiday T.~_hour Day Thanksgiving Day Remembrance Day Christmas Day ~xing Day Any special holiday as proclain~d by the Governor General or Lieutenant Governor. After consulting the evi~_nce and ~t presented on behalf of the parties, the judgn~nt of the board is that the grievance n~st be denied. We accept the argun~_nt of the E~ployer that an employee, such as th~ grievor, cannot compel ~t pursuant to article 19 when they unilaterally perfo~n ~Drk on a holiday without first seeking and obtaining the authorization of the employer. In this instance, it is clear that Ms. Pento did not request the opportunity to do the course ~Drk on an ov~rt/n~ basis or on the holiday. I~, she did not ask for extra time to engage in such ~rk while on shift. The issue w~s first raised with the Employer upon the grievor's return to ~Drk subsequent to attendance at th~ course. We find the grievor's claim to be inconsistent with section 18(1) of the Crown Empl~ Collective Bargaining Act, R.S.O. 1980, chapter 108, as amended, as this provision reserves to management the right to detenmttne matters relating to assist, complemant, and scheduling. The board also notes the comment found in Ferguson, 78/82 (Jolliffe) bet~en pages 6 and 7 to the effect that there is nothing whatever in present article 48 to suggest an employee is entitled to ~rk on a holiday if he wishes to do so. The Union conceded in that case that article 19 of the collective agreement did not confer a "right" to %Drk on a holiday. In cross-examination, the grievor denied the suggestion that she had no intention of ~Drking on the course material during h~r shifts. It w~s h~r' evidence that she was prepared to do it while at ~rk but her patrol responsibilities prevented her from using time on the shifts in this fash/on. The board in this regard notes the following excerpt from the grievor's log book in respect of March 29, 1988: "09.30 P/M Bain delivered a package containing study booklets for course. This booklet is to be completed before 9oing to school. 10.19 At this ti~e I spoke with P/W Dinneen. Ask her if she had to complete a module before the course. She stated no but advised instructor that they should of gave it to them because it was so long and it took a whole day to complete ~s the excuse. So ~ 9Pt them for this class. I will do it. Since I have to do it on m~ rest day 3 am claiming overtime. ~f its top long they then should give us an extra day to prepare for it not on our rest day or try to fit in at ~Drk." (~ph~is ou~) We th/nk th~_s entry, together with the grievor's failure to d{~cuss the matter with her supervisor, is consistent with the absence of intention to complete the material on shift. We find it to be more likely than not that the grievor decided on March 29, i988 to do the work on a rest day or on the hDliday. In this regard, and after ~ighing the competing evidence, the board has been persuaded that sufficient tim~ existed during the three (3) shifts in question to permit the grie~or to substantially c~mplete the package of materials. We think it of sc~e significance that the grievor never attemp~ to commence ~rk on som~ while on these shifts'. Given this assessment, the a~rd in Re Dominion Stores Ltd. and Retail, Wholesale and Department Store Union. Local 1065, 20 L.A.C. (2d) 188 (Teed, August 1978) is distinguishable for in that instance the employees ~ compelled to do the disputed work on their own time. While ~ agree with the result /n that case, its logic is inapplicable here. T~tly, the board has r~t been convinced that th~ letter of March 24, 1988 constituted an order, or that the grievor perceived it as such. Any confusion or concern with respect to its contents should have been d/rected to Mr. Channon, the supervisor. Notwithstar~__Jng our disposition of this grievance, ~ wish to express our concern over the manner in wh/ch the material ~s provided to the grievor. Simply put, the board is unable to understand why such was not provided to the 8 grievor ~11 in advance of the program. Had that been done, the grievor could have proceeded through the materials at a mor~ leisurely pace. There ~uld then have been no question as to her ability to complete the ~rk while on shift. The failure to deliver the course material ~11 in advance of the session contributed materially in this instance to the filing of the grievance. Hopefully, the Employer will be guided by these conm~_nts in future. For all of the abov~ reasons, the' grievance is denied. Dated at. Windsor, Ontario this ]]th day. of M. V. Wattem, Vice-Chairperson "I dissent" (without written reason) F.'Taylor, P. Camp, Member