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HomeMy WebLinkAbout1989-1727.Daniels.90-07-19 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L 'ONTARIO * GRIEVANCE C,OMMISSION DE $ TTLEMENT REGLEMENT BOARD DES GRIEFS 1S0 DUNDAS STREET WEST, SUrTE 2100, TORONTO, ONTAR.r.O.M.SG 1Z8 TELEPHONE/TEL£PHQNE~ (4 ~6~ 326- ~385 150, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO). MSG ~Z8 FACSiMILE/T~L~COP;E : (4 ~6) 326- 1396 1727/89 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN: OPSEU (Daniels) Grievor - and - The Crown in Right of Ontario (Ministry of Revenue) Employer - and - BEFORE: E. Ratushny Vice-Chairperson I. Thomson Member J. R. Scott Member FOR THE N. Luczay GRIEVOR: Grievance Officer Ontario Public Service Employees Union FOR TEE D. Daniels EMPLOYER: Counsel Mathews, Dinsdale & Clarke Barristers & Solicitors BEARING: May 18, 1990 DECISION The Grievor claims that he was denied time credits and overtime hours on November 9, 1989, because of his union activities contrary to Article 27.6.1 of the Collective Agreement which provides that: An employee who is a grievor or complainant and who makes application for a hearing before the Grievance Settlement Board or the Public Service Labour Relations Tribunal shall be allowed leave of absence with no loss of pay anU with no loss of credits, if required to be in attendance by the Board or Tribunal. There is no dispute that the Grievor was given permission by his senior supervisor to attend the meeting in question. The Grievor is a field auditor with the Motor Fuels and Tobacco Branch of the Ministry of Revenue. He resides in Oshawa and works out of the Ministry office there. When he works in that office, he starts at 8:15 a.m. and finishes at 4:30 p.m. with one hour for lunch included. More frequently, he works irregular hours as he travels to various locations to conduct field audits. On these days, his day starts at between 6:00 a.m. and 8:45 a.m. when he leaves his home and between 5:00 p.m. and 7:00 p.m. when he returns to his home. The actual times are largely determined by traffic reports. His hours of work are subject to Schedule A of the Collective Agreement. His hours of work are averaged on the basis of a 36 1/4 hour week or 7 1/4 hour day. In addition, he receives credits for time spent travelling. The meeting in question was a "pre-hearing" in relation to another grievance in which he was a grievor. A "pre-hearing" meeting is an informal meeting which is attended by the parties on a voluntary basis. The purpose is to attempt to expedite the subsequent hearing through the admission of facts and the crystallizing of issues. On occasion, these proceedings may also lead to the informal, consensual resolution of grievances. The parties are assisted in this process by a representative of this Board whose role is similar to that of a mediator. On the day in question, the Grievor commenced work at 8:15 a.m. at the Oshawa office, then travelled to Toronto by "Go Transit" in time to meet with legal counsel and attend the meeting. The testimony on behalf of the Employer indicated that the meeting ended at 4:10 p.m. while the Grievor testified that it ended at approximately 6:10 p.m. The parties asked that, in the event that we should find for the Grievor, the actual hours involved should be left to them to determine subject to the panel remaining seized. In either case, when travel time is added back to Oshawa, it is clear that the actual work and travel time amounted to more than' 7 1/4 hours. However, the Grievor was credited only with 7 1/4 hours of work for the day and received no travel Credits. The central issue is whether the Grievor is entitled to be treated as though he had actually worked and travelled in his employment on the day in question or whether the Collective Agreement requires the Employer only to pay him for an average day. In the absence of existing precedents, the a~gument of the Grievor is attractive. However, the precedents of this Board compel a contrary conclusion. In McKie and M.T.C. G.S.B. 80/80, a Stage Two grievance meeting was scheduled for a particular day which coincided with a scheduled day off for the grievor. As a result his attendance resulted in him having to use his own time for attendance, for which he was not paid. The Board (Vice-Chair Palmer) dismissed the Grievance and stated: Quite clearly the meaning of this clause is that where a grievance meeting is scheduled during times when the grievor is scheduled to work, the Employer is required to permit him to attend this meeting, pay him for the time while he is so engaged and, finally, treat the time when he is at the meeting as if he had worked for the purpose of credits for vacation and the like. (pp. 7-8). In other words, under Article 27.~6.1, the employee is not "deemed" to be at work while attending a G.S.B. hearing but is merely entitled not to lose a day's pay if the hearing is held on a day when the employee is scheduled to work. While the clause referred to is the equivalent of the current Article 27.6.2 rather than Article 27.6.1, the key phrase "with no loss of pay and with no loss of credits" is identical. In Berlinghoff and Eaton and M.O.T.G.S.B. 1878/87, the Board denied a grievance claiming travel and meal expenses related to attending a Stage Two grievance meeting. The Board (Vice-Chair Barrett) stated: The management team is paid to attend these meetings because that is part of their regular duties. Similarly grievors are not ~ocked pay to attend these meetings in regular working hours because the loss of pay could well be prohibitive to some employees with legitimate grievances. (p.7). Article 27.6.2 is quite clear in specifying that the employees shall suffer no loss of pay or credits to attend grievance meetings but, framed negatively as the clause is, we can find no intention or wording that would impose a positive onus on the employer to pay expenses as well. (p.8). Again, the employee is not treated as being at work but is merely entitled not to be "docked" a day's pay. This limited wording of Articles 27.6.1 and 27.6.2 is to be contrasted with the more expansive wording found in provisions such as section 8(12) of the Occupational Health and Safety Act R.S.O. 1980, c.321, which states that time spent by a committee member attending meetings: ...shall be deemed to be work time for which he shall be paid by his employer at his regular or premium rate as may be proper. This provision was considered in Eaton and MTC G.S.B. 646/83, where the majority of the panel concluded that the meetings of the committee are simply to be treated as part of the employee's work so that travel time would have to be paid. However, under the Collective Agreement applicable here, the employee is not deemed to be working (or travelling) but is simply entitled not to lose a day's pay when unable to work because of a requirement to attend grievance proceedings. Where the employee is subject to Schedule A, the most logical "day" for that purpose is an average day. In the case of this Grievor, that is 7 1/4 hours. In some respects, this result is not fair to the Grievor. In effect, he has lost travel.time to which he would be'entitled if he had been working on the day in question. However, in view of the decisions of this Board interpreting Article 27.6.1 of the Collective Agreement, that is a matter which will have to be resolved at the bargaining table. The Employer took the position that a "pre-hearing" meeting is not a proceeding which falls within the purview of Article 27.6.1 at all. The argument was made that since the proceeding is voluntary and a grievor may choose not to attend, the grievor does not meet the criterion of being "required to be in attendance". Counsel for the Employer stated that extending the application of Article 27.6.1 to cover the situation of a pre-hearing was not a legal obligation but simply a policy decision on the part of the Employer. While there are sound reasons why the Employer should -- 5 -- be obligated to take the position which the Ministry states it has taken voluntarily in this case, it is not necessary for us to decide this issue in light of our interpretation of Article 27.6.1. Finally, the Grievor testified that on this occasion other employees who had attended the same meeting had told him that they had received credit for extended time and the Grievor, himself, had received credit for travel and pay beyond 7 1/4 hours in the past. The Ministry called as witnesses the persons responsible for authorizing these claims. In each case, the testimony established that these decisions were made in ignorance of Ministry policy. The Supervisor of Labour Relations in the Personnel Branch of the Ministry testified that it clearly was not Ministry policy to pay such claims and that they were not properly paid. On the whole, the evidence in this respect is not sufficient %o establish a "past practice". See Berlinghoff (p.6). Accordingly, the grievance is dismissed. DATED at Ottawa this 19t~ day of July 1990. __~/"~ y %- ~-~,{ ( Addendum attached ) J.Ro Scott, Member ADDENDUM while I concUr with the award in general, I would not characterize the result for the'grievor as "unfair". The Grievor was paid an average day's pay for attending a Pre-hearing meeting, the duration of which was not determined or controlled by the Employer. The Grievor, on the other hand, has a large measure of control over the number of hours he attended at the hearing. In these circumstances, the denial of pay for travel time was not unfair. J. R. Scott