The URL can be used to link to this page

Home My WebLink About2013-4304.Lunario.17-01-30 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#2013-4304 UNION#2014-5112-0009 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Lunario) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Gordon F. Luborsky Vice-Chair FOR THE UNION Mireille Giroux Koskie Minsky LLP Counsel FOR THE EMPLOYER Thomas Ayers Treasury Board Secretariat Legal Services Branch Counsel HEARING January 26, 2017 - 2 - Decision [1] In the Board’s Decision dated August 31, 2015 (“Decision”) the Grievor, who was terminated as a correctional officer on February 5, 2014, was ordered reinstated to her former employment with the substitution of a 20-working-day disciplinary suspension without pay and lost compensation calculated from June 26, 2014 to the date of her return to work, which the parties were directed to implement “as soon as possible.” The effect of the Decision was to monetarily penalize the Grievor to the extent of approximately 20 weeks’ pay for the misconduct she was found to have committed, but which in the Board’s opinion did not justify the Grievor’s dismissal. Paragraphs 67 and 68 of the Decision provided as follows: 67. For the reasons set out above the Grievor’s penalty is hereby reduced to a 20 working day disciplinary suspension without pay, and she is notionally reinstated without loss of seniority but with remedial compensation for lost wages and benefits calculated for the period commencing immediately after the first hearing day in this matter held on June 26, 2014 until the date of reinstatement; her disciplinary record amended accordingly. She is to be returned to active service as soon as possible. 68. The Board shall remain seized to determine the appropriate remedial compensation to the Grievor if the parties are unable to resolve the matter themselves. [2] The Grievor resumed her employment on Monday, September 14, 2015; however, the Employer states it attempted to reinstate the Grievor earlier, on Wednesday, September 9, 2015, which it claims the Grievor unreasonably refused. [3] While there is a dispute on exactly what was said by the Employer’s Deputy Superintendent of Administration, Mr. Scott C. Gray, to the Grievor in arranging for her return to work, there is no dispute that on Tuesday, September 8, 2015 (which was the day after Labour Day), at approximately 12:30 p.m., Deputy Superintendent Gray had a telephone conversation with the Grievor in the course of which he offered to return the Grievor to work at 8:00 o’clock the next morning, Wednesday, September 9, 2015, with a schedule requiring her attendance on weekdays from 8 a.m. until 4 p.m. until she had completed a new orientation and retraining. The Grievor claims she told Deputy Superintendent Gray she had prior commitments for two of the three days of that - 3 - remaining week (being Wednesday and Thursday), and thus the Grievor claims they agreed she would return to work on the upcoming Monday, September 14, 2015. [4] Deputy Superintendent Gray consequently sent the following letter dated September 9, 2015 by regular mail addressed to the Grievor, which was not actually received by her until September 15, 2015, the day after she had returned to her employment. That letter is reproduced in relevant part below: I write to confirm our conversation on September 8, 2015 during which I invited you to return to work on September 9, 2015 at 0800 hours. You advised that you had already made plans for the remaining days of the week and that you would like to start on September 14, 2015. I then directed you to report to [Toronto South Detention Center] main lobby on Monday, September 14, 2015 at 0800 hours, where you will be received by a Staff Training Manager. Please note that you are reinstated effective September 9, 2015 and you will be on an authorized leave of absence without pay from September 9, 2015 until your return to work on September 14, 2015. As discussed, you will be placed on a Monday-Friday administrative schedule form September 9, 2015 until the completion of your training period and you will receive further information about your schedule upon your return to work. [5] Thus upon her reinstatement, the Grievor did not receive any compensation for the three days of September 9, 10 and 11, 2015, that were marked as approved days off without pay. This came as a surprise to the Grievor who maintained she was never told she would lose three days’ pay if she did not return to work on September 9. The Union claims the Employer’s refusal to pay her for those days was a violation of the Board’s order of full compensation for all losses arising out of her unjust dismissal from June 26, 2014 to the date of her reinstatement, and thus the parties requested that the Board reconvene to resolve that dispute over what amounts to three days’ pay. [6] According to the Union, the Employer acted unreasonably in requiring the Grievor to return to work less than 24-hours after her telephone conversation with Deputy Superintendent Gray. The Employer disagrees, noting that the Grievor had known the outcome of her grievance more than one week earlier on August 31, 2015 when the Employer was apparently advised the Grievor was immediately available to return to her previous employment. - 4 - [7] The parties agreed that the Board could conduct an inquiry into the Union’s complaint in an informal and expedited manner; and would issue a decision on the dispute in a “bottom line” fashion that would have no precedential value for any other case between the parties. That inquiry disclosed the specific reasons why the Grievor claims she could not return to work immediately on being notified of the date that the Employer was prepared to return her to work. At the request of the parties those reasons remain confidential. [8] Both parties agreed the Board’s order that the Grievor be “returned to active service as soon as possible” in the last sentence of paragraph 67 of the Decision should be assessed against an implied standard of “reasonableness”. Thus the test to be applied in resolving the instant remedial dispute may be stated as follows: Was it reasonable for the Employer to require the Grievor to return to work on Wednesday, September 9, 2015 and for the two days immediately following to the end of that workweek in all of the circumstances? [9] Having reviewed those circumstances with the parties, the Board has determined it was reasonable for the Employer to require the Grievor to return to work for two of the three days in that partial week commencing September 9, 2015. However the Board finds that the Grievor was reasonably unavailable on one of the three days to attend an appointment that had been arranged before the telephone call from Deputy Superintendent Gray. Since the Grievor was unavailable for work in circumstances that were important and that she could not practically change on the short notice given to her by the Employer, the Board is of the opinion that she should not be penalized with loss of payment for that day; however, she is not entitled to pay on the other two days that she could have worked and/or rearranged other commitments to attend at work. [10] The Board therefore concludes that the Grievor is entitled to only one day of pay (i.e. not the three days requested by the Union). On agreement of the parties, that one day of pay is to be calculated on the basis of the Grievor’s straight time hourly rate in effect at the time of her reinstatement, with no additional compensation for lost overtime and/or any other type of premium for that day. - 5 - [11] The Board accordingly orders the Employer to pay the Grievor one day of pay, less all customary and statutory deductions, to be provided to the Grievor as soon as reasonably possible. With the payment of this sum the Board confirms the resolution of all matters between the parties concerning the proper calculation of compensation owing to the Grievor upon her reinstatement to employment. [12] As noted in the original Decision, the Board will continue to remain seized to settle any future dispute concerning the proper calculation of the sum owing to the Grievor if the parties are unable to agree on the quantum of that final payment. Dated at Toronto, Ontario this 30th day of January 2017. Gordon F. Luborsky, Vice Chair