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HomeMy WebLinkAbout2015-3085.Adamson.16-12-20 Decision Crown 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#2015-3085 UNION#2016-5112-0005 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Adamson) 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 December 2, 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 will respectively rely upon. This decision is issued in accordance with the Protocol and with Article 22.16 of the collective agreement, and is without prejudice or precedent. [2] The grievor is a Correctional Officer who is a Fixed–Term Employee currently assigned to the Toronto South Detention Centre. The grievor did not have a regularly scheduled work week. [3] The Union and the grievor assert that the Employer violated the collective agreement by not paying the grievor the overtime rate of pay for certain hours that the grievor worked with respect to the work week from Monday December 21 to Sunday December 27, 2015. For that week, the grievor worked the following scheduled shifts: Wednesday December 23 – 8 hours; Thursday December 24 – 8 hours; Friday December 25 – 12 hours; Saturday December 26 – 12 hours. The grievor worked an additional 8-hour shift on Monday December 21 pursuant to the “overtime protocol”. [4] The grievor was paid at the premium rate of two times his basic hourly rate for working on the paid holidays of Christmas Day (December 25) and Boxing Day (December 26) pursuant to Article 31A.3 of the collective agreement. - 3 - [5] Against the backdrop of the above facts, a review of the relevant provisions of the collective agreement affirms that the grievor was not entitled to overtime pay with respect to the hours he worked for the week in question, notwithstanding the fact that he worked more than 40 hours that week. [6] Pursuant to the wording of Article 31A.3.1 (d) of the collective agreement, an employee, who does not have a regularly scheduled work week, has his entitlement to overtime pay triggered upon working in excess of 40 hours per week. Related to this point, the additional shift worked by the grievor on Monday, December 21, while constituting an “overtime opportunity”, did not, in itself, attract entitlement to overtime pay. It is only upon the grievor actually working in excess of 40 hours for the week that the entitlement to overtime is triggered under Article 31A.3.1 (d). [7] The grievor’s potential entitlement to overtime was therefore triggered on Boxing Day when he worked hours 40 to 48 for that week. Article 15.1 of the collective agreement expressly forbids, however, a pyramiding of any premium payments. Accordingly, since the grievor was paid at two times his rate of pay for the hours worked on Boxing Day, he did not have a basis to additionally claim overtime pay with respect to those same hours. [8] Accordingly, the fact that the grievor did not receive overtime pay with respect to the hours he worked for the week Monday December 21 to Sunday December 27, 2015, did not constitute a violation of the collective agreement. - 4 - Accordingly, the grievance is, hereby, dismissed. Dated at Toronto, Ontario this 20th day of December 2016. Brian P. Sheehan, Vice Chair