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HomeMy WebLinkAbout1990-0308.Johns.91-02-08 " , , '\j 1-' ~'" ". ONTARIO EMPLOYES DELA COURONNE 1, ',', .c",',',' CROWN EMPLOYEES DEL 'ONTARIO 1111 GRIEVANCE COMMISSION DE , SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO, M5G lZ8 TELEPHONE/TELEPHONE: (416) 326- 1388 180, RUE, DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO), M5G lZ8 FACSIMILE/TELECOPfE: (416) 326- 1396 308/90 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OFSEU (Johns) Grievor - and - The Crown in Right of ontario (Ministry of Revenue) Employer BEFORE: S. stewart Vice-Chairperson J. C. Laniel Member D. Clark Member FOR THE N. Wilson GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE K. Cribbie EMPLOYER Labour Relations Officer Personnel Services Branch Ministry of Revenue HEARING: September 7, 1990 December 11, 1990 January 14, 1991 · ., - s DECISION The grievor, Mr. S. Johns, is employed as a taxroll clerk in the Oshawa office of the Ministry of Revenue. He has been employed by the Ministry since February, 1984. In a·grievance dated March 27, 1990 Mr. Johns alleges that he is being unfairly discriminated against as a result of a job related permanent disability by virtue of the employer utilizing his vacation credits to offset excess time on his time clock. A good deal of the ~vidence was not in dispute. On September 15, 1986 Mr. Johns had a motor vehicle accident while in the course of his employment and sustained an injury to his foot. He was awarded a five per cent permanent partial disability pension by the Workers' Compensation Board. The quantum of his pension award is currently under appeal. Mr. Johns returned to work in a different job with the Ministry in May, 1989. He testified that he experiences pain when he walks. He walks with a limp and is unable to climb stairs. He sometimes uses a cane. It was also common ground that the Branch of the Ministry in which Mr. Johns is employed operates on a system of flexible hours, a system which allows employees flexibility with respect to the time of starting and j~ , --'"" f " 2 finishing work as long as they complete their required hours of work. Mr. T. Bing, senior supervisor of operations programs in the Branch in which the grievor is employed, testified that the system of flexible hours has been in existence since 1975. He agreed with Mr. Wilson I that the system was initiated by the Employer but stated I that the Union has always been aware of the system. The practices relating to the system of flexible hours are set out in a nine page document which is dated January 2, 1975. The portion of, this document which is particularly relevant to this proceeding is paragraph 5 at page 5 which 'states as follows: At the end of any accounting cycle, the minimum I number of hours that an employee should have worked will be ten hours less than the normal hours of work for that particular accounting cycle. I If an employee has not met this minimum hours of work requirement in the accounting cycle, deduc- I tions will be made from other sources in order that the employee meet the minimum hours of work requirement, in the following order: first, author- ized excess hours worked during that accounting cycle: second, accumulated vacation credits. If the employee still has not met the minimum number of hours of work requirement for the accounting cycle, an adjustment in pay will be made. The essence of this provision is that employees are : allowed to carryover a maximum debit of ten hours. Mr. Johns exceeded the maximum debit in December 1989, having a I debit of 11.10 hours. Mr. Bing met with Mr. Johns and told him that it was necessary for him to reduce his debit. He !. ~ 3 advised Mr. Johns that the consequences of him failing to reduce his debit position would be that vacation credits would be deducted in accordance with the policy which is reproduced above. At the end of January, 1990 Mr. Johns had a debit of 12.62 hours. Mr. Johns I vacation credits were reduced by a half day on February 28, 1990, leaving him with a debit of 9.73 hours. It was the position of the grievor that he should not be held responsible for the debit since the reason for the debit is that he is late for work because the elevators from the parking garage are unduly slow. Mr. Johns works on the,third floor of a seven story office building which has parking facilities in tile basement. Use of these parking facilities is generally restricted to senior members of the Ministry. Mr. Johns would ordinarily be required to park at a location approximately one block away from his workplace however as a result of the settlement of another grievance filed by Mr. Johns he was provided with a parking spot in the building. Mr. Johns testified that it takes him between thirty seconds and one minute to walk from his car to a door leading to the elevators and that the elevators are another twenty to thirty feet away. There are two elevators, a passenger elevator and a service elevator. Mr. Johns I , c. ¡ ---..... .¡ 4 ┼ítated that his general practice is to use the service elevator because he finds that it is faster than the passenger elevator. He stated that he is unable to press the buttons for both elevators and take the elevator which comes first because he is unable to move between the two elevators quickly enough. As previously noted, Mr. Johns is unable to take the stairs because of his foot condition. Mr. Johns stated that he has had to wait up to twelve minutes for the elevator. Mr. Johns goes home for lunch in order to soak his foot to relieve discomfort and, accordingly, takes the elevator to his office on two occasions each day. Mr. Farragher, Director of Personel Services with the Ministry of Revenue, whose office is on the second floor of the same building in which Mr. Johns works testified that from the time of entering the parking garage it generally takes him three to five minutes to reach his office using the elevator. However, Mr. Farragher presses the buttons to both elevators and is able to quickly reach the first elevator that arrives, unlike Mr. Johns. Mr. Farragher acknowled in cross-examination that there are times when it does seem to him that the elevator takes longer than usual. It was suggested to Mr. Johns in cross-examination that ~c .r- l- S he would be able to complete his required hours of work if he arrived at work earlier or stayed later in order to compensate for the time the elevator takes. Mr. Johns' response was that he felt that he should not have to arrive at work earlier or stay later than any other employee in ord~r to compensate for what he perceived to be an unduly slow elevator system. There were three arguments advanced by counsel for the Union on behalf of the grievor. It was argued that the deduction of a one-half day vacation credit was a disciplinary sanction and that it constitued discipline without just cause. It was also argued that Article 47 of the Collective Agreement which deals with vacation entitlement is a complete code with respect to the accumulation and use of vacation credits and that the action of the Employer with respect to the grievor's vacation credits in this instance is not contemplated by this provision and, accordingly, must be considered to be in violation of this provision. In the alternative it was argued that if the Board accepted that the Employer was entitled to deduct a vacation credit on the basis of the flexible hours policy the Board should conclude that the Employer had applied the policy in an unreasonable and discriminatory manner. ^ . ~J -~ 6 We will first address the issue of whether the Employer was entitled to rely on its policy in deducting a vacation credit in this instance notwithstanding the provisions of Article 47 of the Collective Agreement. Even if we were to accept Mr. Wilson's submission that Article 47 is a complete code, it is our view that this is a clear case of estoppel. The Employer has openly engaged in its practice with respect to flexible hours for many years with the knowledge of the Union. The 'detriment to the Employer if it were no longer entitled to operate pursuant to the flexible hours policy is obvious. Accordingly, it is our conclusion that the Union is estopped from challenging the provisions in the flexible hours policy in these circumstances. We will now address the issue of whether the Employer's policy was applied in an unreasonable or discriminatory manner in this instance. Mr. Wilson submitted that the Employer has failed to make reasonable accomodations for I Mr. Johns' disability'. Even if we were to reject Mr. Cribbie's submission that this allegation could not establish a violation of the COllective Agreement it is our conclusion that this allegation has not been established. Mr. Johns was advised about the policy and its application to his situation. The Employer has provided . ~ r- . 7 Mr. Johns with a parking space in the building because of his disability. The flexible hours policy in itself is a policy which is of benefit to Mr. Johns as it allows him flexibility in the hours he works. As a result of this policy Mr. Johns is not subject to a strict schedule which he may have difficulty complying with because of his disability. It is apparent that Mr. Johns could easily compensate for the amount of time that he has to wait at the elevator doors by leaving home a little earlier or working a little later. We are not convinced that the necessity of having to wait up to twelve minutes for an e leva tor, a necessity which Mr. Johns faces because of his disabililty, is a matter which should exempt him from the requirement that he fulfill his obligations with respect to completing the same hours of work as all other employees. Finally, we turn to the issue of whether the Employer's actions constitute discipline. Mr. Wilson submitted that the fact that the Employer deducted one-half day's vacation rather than deducting the precise number of hours necessary to reduce Mr. Johns I debit to ten hours supports the conclusion that the Employer·s actions were punitive. ~'1e cannot agree with this submission. The explanation provided by the Employer for deducting one-half day was that vacation credits are accumulated and recorded on the basis of days rather than hours. There was no evidence to . I :,¡ J .---"'-¡, , <\I, 8 suggest that Mr. Johns was treated any differently than other employees in terms of the way this policy was administered. The provisions of the policy with respect to the fact that vacation credits will be deducted in particular circumstances are clear and unambiguous. The grievor ~as warned that the policy would apply to him unless he reduced his excess hours and he was given an opportunity to reduce his hours. We cannot conclude that the actions of the Employer constituted discipline in this instance. For the foregoing reasons the grievance is dismissed. Dated at Toronto this ðl:lÌay of F.ebruary 1991. I ,~~J~">1\.0 ~ Stewart - Vice-Chairperson .-:' . .ill' ,/þ ~J:¿ anièl - Member .-- ,I 1(, .~r/ /~:_. .;"- :~ -<-~ D. Clark - Member -