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HomeMy WebLinkAbout2014-0284.Thompson.16-03-03 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#2014-0284 UNION#2014-5112-0020 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Thompson) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Brian P. Sheehan Vice-Chair FOR THE UNION John Wardell Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER James Cheng Treasury Board Secretariat Centre for Employee Relations Employee Relations Advisor HEARING February 12, 2016 - 2 - Decision [1] The Employer and the Union, at the Toronto South Detention Centre, agreed to participate in the Expedited Mediation-Arbitration process in accordance with the negotiated Protocol. It is not necessary to reproduce the entire Protocol. Suffice to say, that the parties have agreed to a True Mediation-Arbitration process, wherein each party provides the Vice-Chair with their submissions setting out the facts and the authorities they would respectively rely upon. This decision is issued in accordance with the Protocol and with Article 22.16 of the collective agreement, and it is without prejudice or precedent. [2] The facts in this matter are not in dispute. The grievor is a Classified Correctional Officer employed at the Toronto South Detention Centre. She has approximately 13 years of service with the Employer. [3] In December 2013, the grievor requested and was granted four days of unpaid leave. The Employer, however, inadvertently paid the grievor with respect to those four days. The total number of hours involved was 22.96 hours. [4] The grievor brought the overpayment situation to the attention of a representative of the Employer as soon as she became aware of the situation. Subsequently, however, without any notice to the grievor, the full amount of the overpayment was deducted from her January 30, 2014 pay. [5] The Union and the grievor take no issue with the fact that there was an overpayment, and that, the Employer was entitled to recover the relevant monies. Issue was taken, however, with the manner in which the Employer recovered the overpayment. Specifically, it was asserted that it was an inappropriate and unreasonable exercise of the Employer’s right to manage as there was no effort, on the part of the Employer, to arrange for a repayment schedule; or at a minimum, to provide sufficient notice to the grievor that all the outstanding monies owing would be deducted from her January 30, 2014 pay. [6] The grievor stated that the amount of the deduction, combined with the lack of notice, resulted in a significant financial strain for her and her family; as she - 3 - experienced great difficulty in managing her household expenses, including making her mortgage payment with her biweekly pay being so drastically reduced. As a result, the grievor claimed she experienced extreme anxiety and stress. The relief being sought is for an award of damages for the anxiety and stress incurred. [7] The sense of frustration and aggrievement experienced by the grievor is, at one level, understandable. There can be little doubt that the unannounced deduction of a sizable portion of an employee’s biweekly pay could cause some significant difficulties for the employee, in terms of managing and satisfying his/her normal household expenses and liabilities. The Employer, arguably, at a minimum, should have given the grievor sufficient advance notice that the deduction would be forthcoming from her upcoming pay. In fairness to the Employer, it is noted, however, that the time frame between the overpayment occurring and the recouping of the monies owed was relatively brief; as in, this was not a case of the Employer “sitting on its hands” regarding an overpayment scenario, followed by a sudden and unexpected recouping of the monies. [8] At the end the day, the remedial authority of an arbitrator only arises if, in fact, there has been a violation of the collective agreement. In the case at hand, notwithstanding the express concern regarding a lack of notice to the grievor, there is no basis to reach a finding that the Employer, in fact, violated the collective agreement. There was an overpayment of wages to the grievor, and the Employer took action, in a fairly expeditious manner, to recover those monies. [9] Accordingly, the grievance is hereby dismissed. Dated at Toronto, Ontario this 3rd day of March 2016. Brian P. Sheehan, Vice Chair