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HomeMy WebLinkAbout1988-0976.Heffernan.89-05-04 ONTARIO EMPLOY~'S DE I..A COURONNE GROWN EMPL O YEE$ DEL'ONTARIO GRIEVANCE C,OMMISSiON DE SE~WLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, TORONTO, ONTARIO, MSG IZ8-SUITE2100 TELEPHONE/T~'I I~pHONE 180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) MSG 1Z6 - BUREAU2100 (416) 976/88 IN THE ~IATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE'BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Heffernan) Grievor. - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer Before: A..Barrett - Vice-Chairperson I. Freedman - Member R. Trakalo - Member APPEARING FOR A. Ryder THE GRIEVOR: Counsel Gowling & Henderson Barristers & Solicitors APPEARING FOR G.F.J. Lee THE EMPLOYER: Senior Staff Relations Officer Staff RelatiOns Branch Ministry of Correctional Services HEARING: February 8, 1989 - I - This grievance concerns the denial by the employer of compensating leave for the grievor on September 23rd and 24th, 1988, which is alleged to be contrary to Article 13.5 of the Collective Agreement. Article 13, the Overtime section, is set out below: ARTICLE 13 - OVERTIME 13.1 "The overtime rate for the purposes of this Agreement shall be one and one-half (1 1/2) times the employee's basic hourly rate. 13.2 In this Article, "overtime" means an authorized period of work calculated to the nearest half-hour and performed on a scheduled working day in addition to the regular working period, or performe~ on a scheduled day(s) off. 13.3.1 Employees in Schedules 3.7 and 4.7 who perform authorized work fn excess of seven and one-quarter (7 1/4) hours or eight (8) hours as applicable, shall be paid at the overtime rate. 13.3.2 Overtime shall be paid within two (2) months of the period within which the overtime was actually worked. 13.4 Employees in Schedules 3 and 4 who per.form authorized work in excess of seven and one- quarter (7 1/4) hours or eight (8) hours as applicable, shall receive compensating leave of one and one-half (1 1/2) hours for each hour of overtime worked, at a time mutually agreed upon. Failing agreement, the ministry shall reasonably determine the time of the compensating leave. 13.5 Where there is mutual agreement, employees may receive comDensating leave in lieu of pay at the overtime rate or may receive pay at the overtime rate in lieu of compensating leave. - 2 - 13.6 Compensating leave accumulated in a calendar year which is no~ used before March 31 of the following year, shall be paid at the rate it was earned. Effective March 1, 1978, the March 31 date ma~ be extended by agreement at the local or ministry level The grievor is a Schedule 4.7 employee~ and therefore Article 13.3.1 with respect to overtime applies to him in the first instance. He has an absolute right to be paid for overtime at the overtime rate. If he desires compensating time off in lieu of overtime pay, Article 13.5 then governs the situation "where there is mutual agreement", In contrast, Schedule 3 and Schedule 4 employees have an absolute right to compensating time off when they work overtime and an alternate right to overtime pay "where there is mutual agreement". Article 13.4 governs that situation and specifically requires that the parties negotiate a time for the compensating leave. If no agreement can be reached the Ministry has the right to schedule the time of the leave but must do so "reasonably", that is, balancing the rights of the employer and the employee in a fair manner. Article 13.5, which applies in this case, does not contain the requirement to fairly negotiate the scheduling of the days off. The union, however, asserts that this must be an implied term of Article 13.5, otherwise management would be entitled to refuse to agree in an arbitrary and discriminatory fashion and therefore render the right nugatory. - 3 - What happened in this case is that the grievor was scheduled for regular days off on September 21st and 22nd, 25th and 26th. On August 29th he put in a written request to ha%e September 23rd and 24th off as compensating leave for overtime previously worked, so that he could have six days in a row off. He wanted to go to Niagara Falls with his family over that six day period. It is the practice at the Toronto East Detention Centre, where the grievor works, for employees working overtime to check off on their overtime sheet whether or not they wish to be paid for the overtime or receive compensating leave. If compensating leave is granted it builds up in a "bank" and the employee must then make a written request for specific days off. If the days are not used up by October and March of each year the time is then pa~d out as overtime wages. Management has a scheduling policy for allowing employees time off work for their various leaves. Pursuant to the Collective Agreement, anyone who has worked a statutory holiday is absolutely entitled to a lieu day in conjunction with their regular days off if they give the employer 30 days notice. On less than 30 days notice those people are to be accommodated on a first-come-first-served basis. Similarly, eight people per day may use vacation credits on 30 days notice and their entitlement is according to seniority. No more than - 4 - six people are allowed vacation, lieu days or compensating leaves on the day and afternoon shifts; and no more than two people are allowed to use their credits on the midnight shift. On September 23rd and 24th, the days in question, the grievor was scheduled for the midnight shift. Records filed as exhibits at the hearing showed that on September 23rd, of the ten staff scheduled for the shift, five were off - two on lieu days, one on vacation, one sick, and one on training. As a result of these absences four casual staff were employed and two regular staff worked overtime. The normal complement of ten had to be increased that day to eleven because of a special security problem on the second floor. On September 24th, three people were off on lieu days, one casual employee who had been scheduled to fill in reported off sick, and the grievor, Mr. Heffernan, reported off sick as well. As a result, three casuals were hired and four regular staff worked overtime. Again a complement of eleven was required because of a special security problem on the second floor. Management over-schedules each shift on a regular basis by six employees each on the day and afternoon shifts and by two employees on the midnight shift. This is done to build in flexibility for the expected requests for lieu days, vacations, sick days, and compensating time off days. As mentioned earlier, given appropriate notice, employees have an absolute - 5 - right to take lieu days and vacation days in conjunction with their regular days off, and of course absences due to illness occur but cannot usually be scheduled in advance. When a shift complement falls below minimum requirements, i.e. ten on the midnight shift, casuals or overtime mus__~t be employed. There is extra cost involved whenever casuals and overtime are employed and management makes every attempt to keep this to a minimum. Pursuant to the policy, the Shift Scheduling Officer is to deny leaves in excess of the six/six/two formula but these leaves can be granted on an emergency or special basim by the Senior Assistant Superintendent or in his absence the Shift Supervisor. In short, although management agreed to give the grievor compensating time off in principle, it would only do so in fact ~f the number of days requested by other employees with greater rights under the Collective Agreement'has fallen bel6w. the number of the over-scheduled positions on the days requested. The union complains that in this particular case the grievor was given a negative response to his request, and when' he went to see the Shift Scheduling Officer about perhaps substituting the 27th and 28th of September in the alternative, he was simply told "no" without any real consideration being given to his request. The Grievance however deals only with - 6 - the refusal for September 23rd and 24th and we know that no request in writing was made for the ~7th and 28th, nor was a grievance filed with respect to those days. The union says that the shift Scheduling formula is not posted for employees to see and accordingly, they do not know why their requests are being denied. In evidence the grievor had some vague knowledge that there was a scheduling formula ~n existence but wasn't sure what it was. We were referred to the decision of this Board in the grievance of Goedhuis No. 482/82, wherein a differently constituted panel of this Board found that overtime pay as set out in Article 13.3.1 was the agreed upon normal way to handle overtime for Schedule 4.7 employees. "Article 13. 5 permits them to make exceptions by mutual agreement and nothing more than that can be read into this Article". In that case, at Millbrook Correctional Centre, acute staffing problems existed. Hardly a day went by when staff were not required .to work overtime due to general under-staffing and lack of casual staff. In that case, management never granted' compensating time in lieu of overtime pay except in very exceptional circumstances. The Board found that the denial of compensating time served a legitimate business.interest of the employer and that nothing in Article 13.5 required either party to give any reasons for refusal to deviate from the normal practice under Article 13.3.1 in handling overtime compensation. We agree - 7 - with that interpretation. We are satisfied that management's decision in this case was neither arbitrary nor discriminatory nor made in bad faith. It was made for sound business reasons. Article 13.5 does not give an employee a right to compensating time off on his days of choice, where extra cost would be incurred by management in approving the request, or where other practical business reasons dictate otherwise. However, we see no reason why the scheduling formula should not be promulgated to the employees so that unreasonable expectations will not b~ raised in them when making their requests for compensating time off. Accordingly, the grievance is denied. DATED at Toronto, this 4th day of May, ANNF, B~TT, 'Vico-Chairper$on I~ /~"REEDMAN, R. TRAKALO, Member