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HomeMy WebLinkAbout1992-0904.Rolfe.95-06-05 ,e..\. . \ ONTARIO EMPLOYeS DE LA COURONNE CROWN EMPLOYEES DE L'ONTAFlIO GRIEVANCE COMMISSION DE 1111 SETTLEMENT ~ REGlEMENT " . BOARD DES GRIEFS 180 DUNDAS STREET WESTS/JITE 2100, TORONTO, ONTARIO. M5G lZ8 iELEPHONE/T~L~PHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100. TORONTO (ONTARIO) M5G lZ8 FACSIMILE /TEL~COPIE (416) 326-1396 GSB# 904/92 OPSEU# 92E291 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGA~NING ACT Before ~. THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Rolfe) Grievor - and ... The Crown in Right of Ontario (Ministry of Correctional services) Employer BEFORE: S. stewart Vice-Chairperson I. Thomson . Member F COllict Member FOR THE I Anderson \ GRIEVOR Counsel Scott & Aylen Barristers &. Solicitors FOR THE L Marvy EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING April 18, 1995 . t DECISION In a grievance dated April 22, 1994, Mr. R. Ro'lfe, a I correcti9~al Officer ~mployeq at Metro West Detention Centre, . l_t- claims reimbursemeht at premium rates for holidays I tha,t he was not assigned to wqrk ,for two periods between April 1986 and July 1988 and August i989 and ~uly 1991. The~e was a preliminary objection to tim~Iiness raised by the Employer which was dismissed -in an i~terim decision. ,-', The parties presented the Board with the following agreed statement of facts: 1. Mr~ Rolfe began working as 'a correctional officer at Met:t:'opolitan Toronto West Correctional Centre in 1975. " .1 ~ Staff Training 2. In April 1986 Mr. Rolfe was at the C03 level (supervisor). As a C03, he was given the assignment of Staff Training Officer to teach new recruits. He was requested to' take the assignment and believed that it would last about one year, however he. remained in the assignment for two years, until JU!r-1~8~. ~ ~ . 3. As Staff Trainingc5fficer, Mr. 'Rolfe was not provided with a "work schedule", as he would have been as a regular correctional officer. Rather, it was understood ~hat while in this assignment his regular schedute would be days, from Monday to Fr ip.ay . ., 4. As Staff Training Officer' Mr. Rolfe was not permitted to work on the stqtutory holidays which fell within 'his regular schedule. 5. Mr. Rolfe was not told of the "no statutory holidays" rule when he took the Staff Training position Rather, on the day before the first statutory holiday of his new assignment ;he was told [that he] would not be working the following day nor ~ny other statutory holiday which fell on one of his regularly '\ ;; i ~ 2 sche~uled work 'days wl)ile he continued to perform this assignment .- - . ~ 6. Mr. Rolte never received written notice of the Tequirement not to work on th~s or any other statutory holiday. ""' 7. During this period that Mr Rolfe'sre-gular assignment was ,as staff Training Officer Mr. RQlfe was periodically assigned to perform other duties, including the regular d~tiesof ,a C03 on-line su~~rvisor. 8. .other correctional officers were occasionally assigned to do staff training work when Mr. Rolfe was unable to so. ,-' 9. Whiie Mr. Rolfe~ was assigneq to do special duties as staff Training officer, superVisory positions were sometimes done [sic] by correctional officers o~ a lower rank assigned as "acting" supervisors. These persons ..l....1 ip acting positions aqtually wQ~~ed all of the statutory holidays that theywer~ schedu~e~ ~o work. Likewise, all pupervisors actually worked the statutory holidays that they were scheduled to work. Many of these persons working statutory holidays would \ . . . have less sen~or~ty than Mr. Rolfe. Cleaning Crew supervisor 10. From August 1989 to July 1991 Mr. Rolfe was a CO2 (red-circled C03) regu)arly assigned work as Cleaning Crew Supervisor. His sche~ule was not set out in a I written form provided on a periodic basis, as it would be for most other correctional officers. R~ther, it was understQod to be ,~ regular ,day shift from Monday to J!riday. ' , I, ~, :1,.1. As Cleaning Crew Supervisor Mr. 'Rolfe was not pe~~itted to ~work on s~atutory holidays.. Mr Rolfe was not told of this rule when he took the joq. Rather, his supervisor, Ranja wijessekere told-'him o~ a Friday that he W9u+d not be working the statutory holiday occurring 011 tQ.,e following Monday nor any other" statutory holid~y whic~ fell on one of his regularly scheduled work days while he continued to perform this assignment. ,I 12 Mr. Rolfe never received written notice of the requirement not to wor~ on this or any other statutory holj.day. .... 13. Cleaning and cleaning crew supervision are carried - - --,- \ 3 on at Metro West Detention Centre ~vety day of the week~ incl~dihg ~eekends and ~tatutory'holidays All 'I basic tasks such as garbage land f~oors are done every daYi while- ionger term jobs such'as windows 'and walls are' also done on regular weekdays. Thus, on statutory 'holidays, during the period that 'Mr. Rolfe was regularly assi:gned to 'be Cleaning Crew Supervisor, these duties were carried out by other correctional officers. Many of these officers would have less seniority than Mr Rolfe,. sc~edulinq a~ Metro west Detention Centre 14-. Most correctional officers are scheduled on rotating shifts which include statutory holidays. These correctional officers are generally permitted to work those statutory holidays which fall in theircegular 'schedule. - 15. A small group OI C02 correctional office~s are designated as "auxiliary" and work days only, Monday to Friday. These officers do work outside of the cell units,Jsuch as accompanying young offenders to the doctor, overseeing visits or assisting with meals. These officers are permitted to work all of the statutory hol~days which fall within their regular ,schedule. ,- "'- 16'. At any given time there are casual employees and fulL time correctional officers at work as C02s. During weekdays there are also auxiliary correctional officers. On statutory holidays, toe employer reduces the total staffing comp-lement to a minimum "redline" level. In determining who will be authorized to work, the policy of the employ~r is to first direct casual employees 'not to report to work. If the resulting staffing complement continues to be higher than desired, the employer will thefl direct full time correctional officers not to report to work, in reverse order of seniority, ie starting with the least senior employee. I 17. On some or all of the statutory holidays during the period that Mr. Rolfe-;was a C03 regularly assigned the duties of Staff Training Officer, there was a less senior C03 working the day shift on the statutory ho1.iday in J question Mr. Rolfe cc;mld have worked on statutory ho'lidays by taking the place of a less senior C03 supervisor who was scheduled to work the 8 hour day shift which he normally worked. I / 18 bn some, or all of the statutory holidays during .!: ( 4 the period tl1~t Mr. Rolfe was a C02 reg\llarly assigned the .duties 'of CIEgming Crew Supe~visot therewa,~ a less senior-C02 working the day shift on the statutory holiday in qu~stion.~ Mr.. Rolfe could have worked statutory holidays by taking the place of a les~ senior C02 correctional officer Who was scheduled. to work the 8 hO\lr day shift which he normally worked 19. It is not unu~~al for ~ 9orrectional officer to be assigned to perform wo~k outside his or her regularly assigned duties. For example1 a line officer normally assigned to work_ with female offenders may be temporarily assigned to work with male 9:e;fen~ers. Similarly, a 'l:mpervisor ~ssigned to wqr:k i,n the f~male section mig~~ move -into the, male secti<;:m. -', I 20. At no time during the relevant periods diqthe employer enquire of Mr. Rolfe as to his availability to work on a given statutory~oliday. 2,1. Mr. Rolfe wa~ rea~y and available to work on each of the statutory ho+iday~ during the relevant periods, if he, had been asked. 22. Mr. ~olf~ cou).d }lave ,asked to be re-assigned from the positions of staff training officer and subsequently cleaning crew supervisor. Mr. Rolfe did not make such r a request. The employer was unde~ no obligation to honour such a reque~t. I - 23. Mr. R.qlfe did ~ot ,have the schedules contained in Exhibit 5 pri9r to Apri~ 18, 1995. - Exhibit 5, referred to in paragraph 23, is Mr~ ~olfe'.s work schedule from. F~bruary, 1987 t~ February, 1992,. - - We were referred to the following provisions in the 1986- 1988 Collective Agreement, the agreement inexistence during the " ~ first period of Mr. Rolfe's claim 10.01 Shift schedules ~hall be posted not iess than fifteen (15) days inadvan,ce and there shall be no change in the schedule after it has been posted unless notice is given to the employee one hundred and twenty (120) hours [ . ( " 5 in advance of the starting time of the shift as origina~ly scheduled. If the employee congerned is not notifi,ed one hundred and twenty (120) hours in advance he shall be paid time andone~half (1 1/2) for the first eight (8) hours worked on the changed shift provided that no premium shall be paid .wher.e the change of schedule i$. caused by events beyond the ministry's control. ~I 19.~ -Wh~re an, employee works on a holiday includ~d 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 sc:;:heduled hours, as applicable. 19.2 In addition to the payment provided by section 19.1, an employee shall receive either seven and one-quarter (7 1/4), eight (8) hours pay \ as applicable at his basic hourly rate or compensating leave of seven and one-quarter (7 1/4) or ~ight (8) hours as applicable, providing the employee opts for co~pen~ating leave prior to the holiday. 19.3 When a holiday included under Article 48 (Holidays). coincides with an employee' f? scheduled day off and he.does not work' on that day, the employee shall be ~ntitled to receive another day off. 19.4 Any compensating leave accumulated under sections 19 2 and 19.3 may be taken 'off at a time mutually agreed upon. Failing agreement, such time off may be taken in conj~nction with the employee's vacation leave or regular day(s) off, if request~d one (1) month in advance - 19.5 Any compensating leave accumulated under sections 19.2 and 19.3fin a calendar year which is not used before March 31 of the following year shall be paid at the rate it was earned Effective March 1, 1978, the March 31 date may be extended by agreement at the local or ministry level. 19.6 Notwithstanding anything in Article 19, employees who are in classifications r, ~, ( ( 6 assigned to ~chedule 6~and w~o are required to W9rk on a holiday included in ,Article 48 " J (Holidays):sha'll receive equj,valent time off. In the 1989 -1991 Collective Agree~ent, the agreement applicable to the second period of Mr. Rolfe's claim, Article 19 - was amended by the insertion of a new subsection. The following subsection appears in thqt collect~ve Agreement as 19 3, with the following provisions renumbered accordingly: 19.3 It is understood that sections 19.1 and 19.2 apply only to an employee who is authorized ) to work on the holiday and who' actually works on the holiday, and that an employee who, for any reason, does not actually work on the holiday, shall not be entitied to the payments described herein. Mr. Rolfe was paid at his regular rate for the holidays in ./ issue. The Union did not advance theposit~on that there had been a violation of the specific' provisions of Article 19. Indeed, it was ack~dwledged that the issue of an employee's claim of entitlement to work for premium pay on a holiday had been dealt witn on a numbe:: of occasions by this Board and that it was well established, prior to the 1989-199~ amendment to Article 19, that a claim to premium, pay is pr~dicateq on an assignment to work on a holiday and the Collective Agreement does establish entitlement on the part of any particular employee to be assigned , such work. Previous decisions which have dealt with this issue include Birse 338/83 (Samuels) , Gillies & Botham, 316/88 (Samuels), Adams, 511/83 (Verity), Wilson, 768/89 (Samuels) and Murphy, 1102/93 (Oissanayake). " ( 7 r f' While acknowledging~that the assignment of any 'particular employee ,to work on a holiday and thus be paid" premium pay' .is a matter that falls within the Employer's discretion, it was,the position of the Union that the Employer has violated its obligations under the Collective Agreement, by act,,ing in a manner that is unreasonable. It ~as the ,position of the Union, that having. es'tablished seniority as a basis for .determining who would ,h be given an. opportunity' to work on holidays, the Employer ought to have considered Mr. Rolfe on the basis of his. seniority. Mr. Anderson argued that its failure to do so was unreasonable and further submitted that the disqualification of Mr. Rolfe on the basis 'of the particular positions that he occupied"'was an inapproprciate fettering of its discretion We were referred to ~ Meeks, 1429188 (Slone), where the Board concluded that the ) grievor's Vacation had been.. revoked unfairly,. In that case there was no explanation from the Employer as to why the grievor was required to cancel his vacation to undertake a firefighting assignment while another employee was not and where'the insistence on an employee undertaking such an assignment was contrary to ~inistry policy~ Mr. Anderson argued that the Meeks case is similar in principle to the'case before us and that a ( similar result should follow. In his ,submissions, Mr Marvy argued that the grievance should be dismissed on the basis that there is no yiolation of -. - - ------ c, r ( 8 the express terms of the Collective Agreement. In the alternative', Mr. Marvy submitted that" any obligation on the Employer to exercise its discretion. in a manner that is reasonable haS: been fulfilled in this instance In Murphy, supra ,. ,the Board considered the EIt.lployer_' s ,ob1igations 'in r.elation to the assignment o~ employees to work on holidays and thus "be paid premium pay. The Board accepted~tha~ "'. there was an obligation on the part of the :~mployer to,~xercise its discretion in a-good faith manner, an obligatiop embodying, ., in c~rtain respects, ~n obligation to act rea~onal;>~y.- ~n Murphy, ~ the Board quotes at some length from the ,decis~on in Bousquet, 541/90 (Gorsky), where the Employer's obligations in instances such as these are dealt with in a detailed analYij;is. At p. 58 of Bosquetit is noted that an exclusive right on the part of the Employer "... does not mean that the Employer ha~ carte blanche to do wJlat it wishes...". The decision goes on to note that: ...many words have been used to describe the possible ways of breaching fairness obligations that may be imposed on an employer in administering rights granted under a collective agreement: arbitrary, discriminatory, unfair, bad faith, unreasonable. At, p. 59 of the decision reference is made to Schiralian, 914/86, (Roberts), where i:t is stated, th~t rtRe~sonablenes,s i~ this context is a species of good faith" At pp 59-61 the decision in Bosquet goes on to state as follows I~ commenting on the U$e of the term "unreasonable" in some earlier decisions of the Board dealing with the good faith exercise of the statutory right to "release" a probationary employee, the Board stated, \.. -; . I \. ! t 9 in Shaw, at pp. 5-6: Whi~e this term [unreasonable] is utilized in the earlier decisions we do not take it 7 to mean that we can review the merits, of the -r employee's job performance and reinstate him if we ,find that assessment was "unreas;onable" that the employee had not met the job requirements. Reasonableness in this context is a speci~s of good faith. Whereas the phrase "bad faith" could encomp~ss a release improperly motivated . .. ! (. or mal1c1ously 1ntended, "unreasonableness" speaks more to an objective a~sessment that the release did not flow logically-or rationally from the, facts. If, for example, there was simply no evidence that a probationary employee ,- had not fulfilled or could not ~ulfill the job requirements, then no matter how well meaning were the actions of his superiors, the release, would have been an unreasonable exercise 'of authority., The Board in Shaw also dealt with the fairness requirement that there be a rational relationship ~ between the facts and the release (at p.6). This - factor was found to be "nearly synonymous with 'reasonablene~s' ." In ,holding that (ibid.) the release can be reviewed as a discharge if the employer's "assessment that, a certain set, of facts, justifies release i~ 'irrational' on any half- intelligent view of the matter," the Board cautioned (ibid. ) that the rational relationship test should not be placed too high, as: - I,t is easy to brand as .. irrational" any thought process or decision with which one does not agree. The Deputy Minister must be free to make decisions, without Qeing found to have acted irrationally merely because a board of arbitration ~ might have come to, ~ different decision. That is, the test of good faith, in this context I is not one of correctness. In applying the foregoing principles to the facts before us we are unable to conclude that the Employer has engaged in an unreasonable exercise of authority by virtue of not assigning Mr I ,..~ ""'. ( 10 Rolfe to work 6n holidays on the basis of hi~ seniority. It is apparent that the decision to preclude Mr Rolfe" from being considered for work on holidays arises fr9m 't;he assignment he had been giv~n at the relevant times. There w?s no evidence that the failure to assign work on holidays to persons in those ~ assignmen~s' wa~ rerated to '~nything oth~r than that particular assignment. The scheduling" of correctional officers regularly assi9ned to' shi-ftwork 'to work on holidays" in accordance with their regular rotating schedule with any ~reduction in staff to be based on seniority within that group in preference to 'J correctional officers given certain strai~ht day assignments is not irrational on its face. The fact that other positions, including acting supervisors and auxiliary o~ficers continued to be assigned to their regular day schedules does not, in our view, properly render a characterization of the circumstances of ~r. Rolfe as an irrat'!onal exercise of managerial discretion. Mr. Anderson characterized the circumstances of this case as the Employer having decided that entitlement to work on holidays will be based on 'seniorit~ and then inappropriately fettering its " discretion by failing to apply that decision in the case of Mr. Rolfe~ In our view, the more appropriate characterization of the circumstances before us is that the Employer has determined that the assignment to work on holidays will be based on an employee's pa~ticular wor~ assignment at the time. While, within the group , of employees whose work assignments carry with them an assignment \. ~ A ! .. ( 11 to work on holidays any conflict will be r~sq):v,~d on the basis of '\ senio;r~ty, the fact that a p~rson 'in a position that has pe~n excluded from anas9.ignment o~ this work at the. outset does not ~ave his or her senio~ity ,c9nsidered does not constitu~~ an inappropriate-fettering o~ dipcretion, given that those positions have been excl~de~ from the outset. In our view" the facts before us are clearly distipg~ishable from the. fac~s be(ore this Board ,in Meeks, supra. In that case the Employer failed, ~o comRly with a.po~icy th~t on its fape included the gr~evor. The E:rnp,loyerengaged in differential / .. . treatment of anoth~r employee 1n the v~ry s1tuat10n of that grievor. This is: not analogo~s t.o the situation before us here. The Employer in tpis case has given preference in scheduling work on holidays to employees wpo work shift wor~ in accordance with their regular schedules in preference to persons assigned to certain day positions. I~, is apparent that the policy being applied here excludes ,persons in the ~ssignments that the grievor was occupying at the relevant times and thus this is not a situation where the Employer is not acting in accordance with its policy. Given the fact that other office~s who are assigned to work on holidays are engaged in different duties, We are unable to conclude that their continued assignment to work on holidays r in accordance wit~ their schedule constitutes differential I treatment in the sense that it was found to exist in Meeks. ~~4 .~ " ....:'i' 1;2 As Mr. ~nderson acknowledged, the Union carries the onus in this case. While the failure' to provide an explanation by a decision maker as to the basis for the, manner in which a particular matter is dealt with'inay lead the Board to conclude that its decision is without-~easonable foundation, we are unable to conclude that a prima facie 'case, calling for such' an explanation, is made out on the facts before us. A rational basis for distinguishing Mr. Rolfe~s circumstances from '- circumstances in which other employees are allowed to work on paid holidays is apparent. While there may be a better, more equitable approach, we are unable to conclude~ on the evidence before us, that the approach that has been taken here is unreasonable. Accordingly, the grievance is dismissed. Dated at Toronto, this 5thday of June, 1:995. ~ u.L>LL/1"" ? S.L. stewart - Vice-Chair /7 , ~ -- t:. JIo-..... L../ I~omson - Member I '2~:J .. ..::::;/ -, F. coll~' Memb~r \