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R ,EiVED 22 4/ i
~ ~, OPSEU ~'91E382"
~" . . ~.. BOARD_
OPSEU (Selkirk)
Grievor
- and-
-The Crown in Right of Ontario
{Ministry of CorreCtional Se~ices)
Employer
BEFOR~t M. Gorsky .., Vice-Chairperson
J. C~rru%hers Me~er
F. Collict Me, er
FOR THE M. Bevan
GRIEVOR Grievance officer
Ontario.Public Service Employees..Upion
FOR-THE J. Benedict
EMPLOYER Manager, Staff Relations & CoDpensation
Ministry of the Solicitor General &
Correctional Services '.
Decision
The decision in this matter is dated November 17, 1994. The
grievance filed on November 5, 1991 by Russell Selkirk, who was, at
all material times, a Correctional Officer 2 employed by the
Employer at the Hamilton-Wentworth Detention Centre provided:
I grieve that my suspension from November 2, 1991 to
November 13, 1991 inclusive is unjust.
Mr. Selkirk requested that the suspension be rescinded and
that he "receive all monies and benefits including interest owed,
and that any correspondence regarding this incident be removed from
[his] personnel file."
By a letter dated October 30, 1991 (Exhibit 2A) addressed to
Mr. Selkirk, ~he representative of the Employer stated:
... I have decided that.~you will be suspended without pay
for a period of ten days (80 hours). The specific dates
of the suspension will be the previously scheduled shifts
from November 2 to November 13, 1991 inclusive .... "
The Board, at p. 214 of its decision, concluded "that the ten
day suspension should be reduced to one of four days, with the
Grievor being reimbursed for any loss suffered as a result of the
additional six days of suspension without pay." The Board retained
"jurisdiction in the event tha~ the parties [were] unable to agree
as to the amount to be repaid to the Grievor."
2
As the· parties where unable to determine the amount of
compensation to be paid to' the Grievor, the Board ordered that
written submissions be made with respect'to the outstanding issues,
which were:
1. Was the Grievor entitled to premium pay for a statut6ry
holiday that he would have otherwise worked had he not been
improperly suspended? and
2. Was the Grievor entitled to interest on the total amount owed
. to him? 7
Although the Grievor's suspension covered a period of 12 days:
from November 2 to November 13, 1991, inclusive, .it evidently took
into consideration his two regular days off during the period
specified.
The Union claims that as the Grievor was scheduled to work on
November 11, 1991, being Remembrance Day, a~ recognized holiday
under 48.1 of the collective agreement, and was entitled to premium
pay ~nder articles 19.1 and 19.2, which are as follows.:
19.1 ·Where an employee works on aholiday included under
article 48 (Holidays), he shall be paid at the rate
of 'two ·(2) times his basic hourly rate for all
hours worked with a minimum credit of seven and one
quarter (7-1/4), eight (8), or the number of
regularly scheduled hours, as applicable.
19.2 In addition to the payment provided by Section
19.1, an employee who works on the holiday shall
receive either seven and one-quarter (7-1/4) or
3
eight (8) hours pay as applicable at his basic
hourly rate or compensating leave of seven and one
quarter I7-1/4) or el§hr I~) hours as applicable,
provided the employee opts for compensating leave
prior to the holiday.
The Union's position was that the Griever was entitled to
receive an additional eight hours:ipay under article 19.1, and a
further eight hours pay under article 19.2 because but for the
aditional days of suspension he would have worked worked on
November 11, 1991 an been entitledlto the payments now claimed.
The Union argued that as the'Board stated that the Griever
ought to have worked November 11, 1991 (by reducing the 10 day
suspension), he should be reimbursed for any loss as a resulg of
the additional six days of suspension (which included November 11,
1991).
The Union sought an additional two days pay (sixteen hours) in
accordance with the provisions of the collective agreement.
The Employer submitted that:
At the time [that the griever was suspended] the
administration of the Hamilton-Wentworth Detention Center
actually only suspended [him] ... for eight days, on the
understanding that because the November tl, 1991
statutory holiday fell within the suspension period, the
net value of the suspension would, in fact, be ten days.
The employer submits that since the Remembrance Day
holiday was already accounted for in the tezTas of the
original ten day suspension, the Griever is now entitled
to the reimbursement of Six days as provided for in the
award.
The Employer further submitted:
.The Board's decision reads,."we conclude that the ten day
suspension should be reduced to one of ~o%k days"2 The
Empl0yer contends that this phrase should be interpreted
as any four (4), eight (8) hour days. "
Who is to say then, as the' union maintains, that the
9nsuing-four (4) day suspension includes the November 11,
1991 statutory holiday? The'Board~ in the text of the
award,..makes no such stipulation.
Since the-Board made no mention of specific dates in the
award, 'it is the Employer's alternate position that the
Board.is functus on theissue of which calendar days are
included in the f6uf (4) day suspension and which
.. calendar [sic] six (6) days are to be reimbursed to the
grievor. --
-.. -(Emphasis in the original)
Decision With Respect To The Issue Of Whether The' Grievor Is
Entitled To Premium Pay For The November 11, 1991 Statutory
The plain meaning of the Employer's notice of .suspension
(Exhibit 2A) is that the Grievor was being suspended for a period
of ten days (80 hours). The notification was clear in establishing.
that the "specifiic dates of the suspension" were to be: "the
[Grievor's] .previously scheduled shifts from November 2, to
November 13, 1991 inclusive." That is, the 10 eight hour'shifts
that the Grievor was scheduled for during that 12 day period.
There was no indication that a gloss must be placed on the clear
meaning so as to interpret it as suggested by the Employer. if
that was the intention, that is what Exhibit 2A should have stated.
5
It was unnecessary for the Board to stipulate which days were
included in the four day suspension.' Those days would be the first
four days for which the Grievor was scheduled, commencing with his
first scheduled shift from.the date first mentioned: November 2nd.
The Grievor is entitled to be made whole for his loss. It was
not disputed that he was scheduled t~o work on November 11, 1991, a
statutory holiday. But for his 10 day suspension he would have
worked that day and been entitled to a holiday payment as provided
in articles 19.1 and 19.2 so as to receive an additional eight
hours pay under article 19.1 and a:further eight hours pay under
article 19.2. In making this order the Board is not re-opening the
issue; that issue having being decided in the Board's decision on
the merits. The Board ruled that four days of the suspension were
warranted and that the remaining six days were not. In the normal
course, the first four days of suspension would be served on the
first four days of the Grievor's shift schedule from November 2,
1991.
Accordingly, the Grievor is entitled to the additional two
days pay (16 hours) as per the collective agreement, because his
suspension to not include November"il, 1991 (Remen%brance Day).
Decisign With Respect to Whether the Grievor is entitled to
Interest on the Amounts Owinq to Him by the Employer
6
The~Bo~rd. decided that the 10 day suspension should be reduced
to a four day suspension~ and remitted the matter ~'back. to the
parties to have them agree as to the amount to be paid to the
Grievor. In ~onsider%ng the award of interest, the Board is
concerned 'with the awarding of interest a's damages. This issue,
although part of the Union's claim for relief, was not immediately
addressed by the parties. This-is not unusual in cases of this
kind where the issue will'only-be before 'the ~oard for argument
where the parties cannot settle the matter between themselves. We
do not regard the issue of the payment of interest to have been
abandoned by the Union and it remains outstanding and we do not
regard ourselves as being functus in relation to that issue. The
issue with respect to interest was only argued when it became clear
that there was a difference between the parties as to whether it
should be awarded notwithstanding the partial success of the ~nion
on the merits.~
The Board proposes to deal with this difference. There is no
reason not to award interest in accordance with the usual practice
of the Board, ~iven the length of time that the amount owin~ 5he
Grievor has not been paid. We believe that there is no real
difference between the parties as to what the amount of interes~
should be if interest is payable. As we find tha~ interest should
be payable and as we have made an order to that effect, we remit
the matter to the parties in order that they may calculate the
7
amount owing. We retain jurisdiction to deal with any difference
that may arise should they be unable to reach agreement.
Dated at Toronto this 30th day of 'October, 1995.
M.R. Gorsky Vice Chairperson
ember
· COl~ ~ Member