Loading...
HomeMy WebLinkAbout1988-0718.Monkman.89-02-07 ONTARIO EMPLOYEs DE LA COu~ONIV£ · CROWN EMPLOYEES DE L'ON TA RIO GRIEVANCE C,OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, TORONTO, ONTARIO MSG IZ8- SUtTE 2100 TELEPHONE/T/ZL/~PHONE 180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) MSG '~Z8 - BUREAU2100 [4t6) 59~-0688 O718/88 ~ T~E MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES BARGAINING ACT Before THE GRIEVAYCE S£TTLEHENT BOARD Between: OPSEI! (W. Monkman) Grievor The Crown in Right of Ontario (Ministry of Transportation) Before: R.J. De]isle Vice-Chairperson P. Klym Hember M. O~Tool e Member For the Grievor: %. Roland Counsel Cowling & Henderson Barristers & Solicitors For ~he Employer: K. B. Cribbie Staff Relations Advisor Human Resources Branch Ministry of Transportation HEARING: December 16, 198g DECISION The grtevor complains that his employer breached Article 10 of the Collective Agreement which provides: Article 10.i and 10.3: .10.1 Shift schedules shall be posted not less than fifteen (15) days in advance and there shall be no change in the schedule after it has been posted unless notice is given to the employee one hundred and twenty (120) hours in advance of the starting time of the shift as originally scheduled. If the employee concerned is not notified one hundred and twenty (120) hours in advance he sha~l be paid time and one- half (1½) for the first eight (8) hours worked on the changed shift provided that no premium shall be paid where the change of schedule is caused by events beyond the ministry's control. 10.3 A shift may be changed without any premium or penalty if agreed upon between the employee and the ministry. There is little dispute concerning the facts. The grievor is a construction technician. In early August he was working on a construction project at Highway 48. His hours of work were regularly 8:00 a.m. to 5:00 p.~m. with a one hour lunch period unpaid. Given the distance from his headquarters/home to the worksite he was entitled to be paid for one hour per day travelling. Dane, another construction technician, was working in August on another project at Highway 404. According to Dane's Project Supervisor, Fred Bennitz: "Dane's regular shift for some time had been 7:00 a.m. to 7:00 p.m." Dane's task was to inspect the compacting of the roadway and the contractor on the project at Highway 404 was working long hours and Saturdays. On August 5 the grievor was told that he'd be transferring to Dane's project on August 15. According to his testimony nothing was then said to him about any change in his hours of work. On August 15 the grievor worked his regular hours, 8-5, with one hour lunch unpaid, and was credited with those hours plus one hour for travelling. The grievor remembered a conversation with Fred Bennitz that'day when Bennitz told him that the contractor worked long hours and Saturdays. The grievor testified that Bennitz didn't tell him that he would be expected to work any over time. Bennitz recalled that on August 15 he told the grievor he was filling for Dane and that he'd be required to work overtime. When the grlevor objected that other plans prevented this Bennitz phoned Lawrence Cotgrave, Construction Supervisor, who had sent the grievor to the project~ Bennitz complained that since the grievor couldn't work the extra hours, "he couldn't fill for Dane". Cotgrave advised Bennitz to write a letter to the grievor setting out what was required of him. Bennitz wrote a memo to the grievor, Exhibit 2, dated August 16, and received by the grievor August 17. The memo reads: During the week of Aug. 15/88 to Aug. 20/88 you will be taking compaction tests and getting samples of granular when required. Your working hours will be 7 a.m. to 7 p.m. The grievor received the memo on August 17 and asked his immediate supervisor, Goodfellow, whether he was to remain until 7:00 p.m. He was advised that, because of the weather, he could go home at 4:00 p.m. On Thursday, August 18, the grievor reported for work at 7:00 a.m., went home at 4:30 p.m. and spent an hour travelling. On his time sheet the grievor credited himself with eight hours regular time, eight-and-a-half hours overtime and one-hour travelling. Cotgrave, reviewing the time sheets credited the grievor with eight hours regular time and one-and-a-half hours overtime. The issue between the parties is therefore very clear. The grievor maintains that by the memo dated August 16 his shift was changed without his consent, as might have happened pursuant to Article 10.3, and without the appropriate notice pursuant to Article 10.1. If consent had been given or appropriate notice there'd be no premium payable to him for the change. Since there was neither consent nor notice the employer muse pay a penalty. The employer argues that there was no shift change and therefore nothing to trigger Article 10.1. The employer argues that the memo of August 16 was simply a request that he perform overtime work for which he would be compensated pursuant to Article 13. The employer argues that on August 18 the grievor worked his regular shift, 8:00 a.m. to 5:00 p.m., and an hour overtime, 7:00 a.m. to 8:00-a.m. plus a half-hour overtime travelling home. The employer maintains that greivor's shift remained the same but that overtime hours were added before and after the shift. We believe, that on the facts of this case, the best characterization of %~hat occurred is that the employee's shift was changed. This was done without the grievor's consent and without the appropriate notice and the grievor is entitled to be paid a premium pursuant to Article 10.1. First, the language of Exhibit 2 dictates a change in the grievor's working hours over the whole week, reporting early and leaving late, and it seems more natural to interpret this as a change in shift rather than ordering overtime. Second, overtime is ' usually thought of as exceptional and dictated by the exigencies of the events. In this case the employer and employee knew on August 5 that he'd be needed to cover Dane's vacation ten days hence. Third, the employer's argument that grievor on August 18 worked his regular schedule, 8:00-5:00, plus an hour before and a half-hour after does not bear scrutiny; he went home at 4:30! Also, Cotgrave, "correcting" the time sheet, credited the grievor with overtime from 4:00 to 5:30. Finally, the employer is not prejudiced in future by this interpretation. The employer argued that "to allow this grievance will interfere with the employer's ability to meet sudden emergencies in construction work by ordering overtime." In this case the employer knew its needs, knew that Dane regularly worked 7:00-7:00, knew that grievor regularly worked 8;00-5:00, and could have avoided the penalty of Article L0.1 by giving - 4 - the apDroDriare notice to griever on August 5 when they advised him of his t~-ansfer. With that notice griever could haw, arranged his persona] affairs to accommodate the new schedule. ~n the resul~ the ~r%evance, seek~n~ Qav~e~t at t~ rate of tide-and.a-half for the first right hours worked on August iSth, with {nterest, is allowed. retain jurisdiction in the event the parties are unable to settle the monetary amount by themselves, D~:ed ac Kingston, Ontario this 7Lb day of February, i959 R.J. I)e I i~"l e ¥ice-~ha ~rperson P, Klym - Member ./~' M. O'Toole - Member