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HomeMy WebLinkAbout1992-3364.Claydon&Tate.96-02-01 .,-'~ ~. EMPLOYES DE LA COURONNE . ONTARIO ~.J- CROWN EMPLOYEES DE L'ONTARIO 1111 GRI~ANCE COMMISSION DE . ... SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STRE:ET WEST SUITE: 2100, TORONTO, ONTARIO. M5G lZS; TEIEPHONE:/TELEPHONE (476) 326-1388 180, RUE DUNDAS OUE:ST BUREAU 2100, TORONTO (ONTARIO) M5G lZ8 FACSIMILE/TELECOPIE (476) 326-1396 GSB # 3364/92 OPSEU :# 93B159, 93B160 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Claydon/Tate) Grievor - and - The Crown in Right of ontario (Ministry of Reyenue) Employer BEFORE H Finley Vice-Chairperson W Rannachan Member D Clark Member FOR THE A Ryder , GRIEVOR Counsel , Ryder, Wright, Blair & Doyle Barristers & Solicitors FOR THE P Young EMPLOYER Counsel Filion, Wakely & Thorup Barristers & Solicitors HEARING August 29, 19'95 , #. "- " . - GSB 3364/92 / DECISION The Gnevance Settlement Board issued an earlIer decIsion on a prelImInary matter \ respectIng the gnevances of Mr Jim Claydon and Mr Paul Tate, Senior Property Assessors (P A 4) In the Mimstry of Finance, at Its Ottawa-Carleton location. These grievances had been filed on December 9, 1992 follOWIng the base-year open houses held Mondays through Thursdays, "- between November 16 and December 3, 1992. The Gnevors contended that they were "Improperly placed In Schedule "A"" With respect to their hours of work and asked that they be "reslotted Into Schedule 3 7, the same schedule to whIch the clerical staff in theIr diVIsion are asSIgned. To be properly assIgned to Schedule A and thereby be subject to averagIng of hours, the duties of an employee's pOSItIon must meet either of the follOWing condItions set out In Appendix 3, Schedule A, of the Collective Agreement: (1) he or she must work more than the number of hours per week prescribed at regularly recurring times of the year, or (2) the number of hours per week must be normally irregular The Board concluded that, while it dId not have JurIsdIctIOn to allocate an employee to a schedule, SInce that authority rests solely With the Employer, It dId have the JUrIsdIctIOn to review the questIon of whether or not the Gnevors' duties meet the I;lbove conditions. The Panel, Mr Don Clark haVIng replaced Mr John Miles, reconvened to consider the matter on ( August 29, 1995 Counsel for the Dmon had also changed, Ms. Mary MackInnon was replaced by Mr Ahck Ryder Further, one of the Gnevors, Mr Paul Tate, had withdrawn lus gnevance, and tlus left Mr Jim Claydon as the sole Gnevor 1 - -.- - I s ~ ~ The Union takes the posItIOn that AppendIX 3 does not apply to the Gnevor because the condItions for its applIcatIOn are not met and therefore the averaging rules of AppendIx 3 are not aVallable to the Employer and excess hours must be treated as overtime (at tIme and a half) under ArtIcle 13 In the alternatIve, the Union submits that the conditions precedent to an employer's nght to give the duectives it gave to mvoke averaging were not met. In other words, the Employer dId not mvoke AppendIx 3 properly The Employer takes the posItIOn that the above condItIOns do apply to the Gnevor and that he was treated properly - Mr Claydon has been a Real Property Tax Assessor smce 1969 He has a sense of profeSSIOnal pnde wruch he values. Mr Claydon carnes out assessments rumself and supervIses others m then capaCIty as assessors. He IS one of lOP A4s at the Ottawa-Carleton Office. As well, there are approxImately 40 P A3s in tlus office which IS one of 31 throughout the provmce. Mr Claydon's dutIes frequently Involve dealmg with members of the pubhc,and muniCIpal government. He also takes part in Assessment RevIew Board and OntarIo MumcIpal Board heanngs, as well as Court hearings wruch, on occaSIOn, require hIs presence outSIde lus normal workmg hours since the chair or the Judge does not take into account the speCIfic workmg i hours of mdIvIduals who are attendmg He might also be required to prepare for these hearings . outSIde hIS standard hours of work, that IS, outSIde the hours of 0800 to 1600 hours, Monday to Fnday, lus standard hours of work. As well, he IS scheduled to work on an occaSIOnal, I rotational basIs from 0845 to 1645, in order to be available to the publIc for the 45-minute penod - after 1600 hours. This occurs approXImately three times a year Mr Claydon VIews thIS extra 45 mmutes of duty, or takmg a phone call after 1600 hours, as "voluntary" work. He does not perceIve his being scheduled to work the extra time dunng the open houses the same way As a Senior Real Property Assessor, Mr Claydon IS assocIated With the "fair-market- value assessment" program m Ottawa-Carleton. ThIs IS the assessment program wluch IS the ' basIs of most munICIpal assessment roles. The frequency with which this program occurs vanes With the munICIpalIty, but in Ottawa-Carleton the new base year assessment takes place on a four-year cycle WhICh was formally established in 1992. Followmg the assessment 2 , \-- detenmnatIOns, notIces are sent to ratepayers and tenants and mdivIdual consultatIOns are offered them at open houses set up m varIOUS faCIlIties throughout the commumty and m the RegIonal Assessment Office. Open houses may be held at times other than followmg the establIshment of a new base year but these are of shorter duration with fewer members of the publIc attendmg. They are usually held annually and are in-house. Dunng the last base year reassessment m Ottawa-Carleton whIch was held m 1992, four consultation centres were set up m the commumty One was open for three days, while the other three were open four days a \ week, Monday through Thursday, (or three weeks. All were open to the publIc from 1230 to 2030 hours. Mr Claydon was on hand to offer consultatIOns and receIve InformatIon dunng these hours. He also had dutIes with respect to the setting up of the centres wluch reqUIred lus presence at the community locatIon on certaIn of the days. As well, some of the quenes and InformatIOn that Mr Claydon receives during the consultatIOns WIth ratepayers require both m- office and on-SIte clarificatIOn. He was gIven the optIon of working for an extended penod on the open-house days dunng the three weeks of the informatIOn sessions. The choice is lus, although the Employer lets it be known that It pFefers that problems are dealt WIth as soon as possible. Mr Claydon usually carries out this work from 0800 hours to 1200 hours on the same day as he IS workmg at the Open House from 1230 to 2030 hours. During the morrung hours he would also respond t~ telephone mqUInes, and carry out research, analysis and possibly field VIsits. J As well, m the evening, he might need to see the last mmute inqUIrers out and close the operation for the mght. Mr Jacques Laflamme, who IS one of five ValuatIon Managers, and Mr Claydon's ImmedIate supervIsor, testIfied that It was lus practIce to permit assessors who had worked, for example, an extra hour on Tuesday, to take that hour on Friday and not record It. Most assessors working under him, enter mto tlus 'WIthin-the-week' arrangement and It IS regularly used when assessors are attendmg court. The amount each assessor would use thIS arrangement could vary consIderably The result of usmg it IS that there are no excess hours to record at the end of the -, week. 3 -~ ~ ;; The documentary eVIdence submItted provIdes an historical perspective of the time Issue wruch illustrates the practice of the Employer with respect to hours of work, exclUSIve of the wlthm-the-week arrangement, and Mr Claydon's experience. They show that some changes have taken place smce he sIgned hIS onginal Conditions of Employment, for mstance, the number of hours per day, and therefore per week has been reduced by 12 hour per day, or 2 12 hours per week. The Conditions of Employment wluch he signed m 1970 show m Item (9) that his hours of work were to be from 8 45 a.m. to 5 '00 p.m., With an hour for lunch. Item 10 addresses the matter of overtIme 10 You may at times/be require<;l to work overtime. Whether you receive compensation for overtime or not depends on the classification of your position. There are three categories. (a) payment at time and a half .(b) time off in lieu at time and a half (c) no compensation In your present classification you fall into category (not filled in) above. Mr Claydon testified 'that he had not agreed to any amendments since the date of sIgn mg. In November 1980, the RegIonal Assessment CommiSSIOner in Ottawa-Carleton, G.H. MeredIth, Issued the followmg memorandum to all staff, mtroducmg the rotation of staff to ensure the office was staffed to serve the pubhc from 8 '00 to 4 45 p.m. ) Commencing November 24, 1980 the hours of work will be 8 A.M. to 4 P.M. with 45 minutes for lunch time. The office, however, must be open for business until 4 45 P.M. each working day It will therefore be necessary to have a skeleton staff on duty from 4 P.M. to 4 45 P.M. consisting of a representative number of employees from all sections including services, valuation (geographically) and administration. This schedule of hours represent the employees' preponderating (sic) choice of hours as indicated in the memorandum distributed October 29, 1980 and is being implemented for your convenience on a trial basis for a six month period. The implementation and response to this proposed schedule will be monitored by all managers and reviewed at the end of the six month trial period. ( 4 , :\- Thank you for your cooperation. Mr Claydon was seconded to the Toronto Assessment Office dunng 1982 and while h~ was there, the followmg memorandum regarding hours of work was issued by the RegIonal Assessment CommIsSIoner there, A. F Thompson. To facilitate the updating of records for 1980 Market Value commencing April 26th, 1982 until further notice the office hours for all assessors for Tuesday, Wednesday and Thursday of each week will be from 9'00 a.m. to 8:00 p.m. with one hour for lunch from 11 45 to 12.45 and one hour for supper, preferably from 4'00 to 5:00 p.m. Where necessary managers will arrange for a staggered lunch hour The hours of ~ork on Mondays and Fridays will remaitl unchanged for the present. All assessors from the Toronto Regional Assessment Office will work alternate Saturdays from 9'00 a.m. to 4'00 p.m. with a lunch break from 11 45 to 12:45 Managers will arrange the work. schedule. Support staff may, with appropriate notice, be required to work the above hours including some Saturdays. Payment for overtime hours will be in conformance with the present contract agreement, but the averaging of hours for assessors 'YiII in all likelihood be paid rather than granting time off. [Emphasis added.] c The memorandum demonstrates that the assessors were in Schedule A and subject to averagmg m 1982. Mr Claydon testified that he receIved payrpent for overtime hours. The Employer dId ~ not present eVIdence to bi1.ng this testImony into questIon. In February 1986, the Ottawa-Carleton RegIonal Assessment Office was relocated from 161 Launer Avenue West to 2305 St. Laurent Boulevard, its current location. A memorandum I to all staff from the CommISSIOner, RegIon #3, Ottawa, G H. MeredIth, gave notice oftlu.s and set out the hours of work m the followuig Items. 1 The office hours will remain the same 8:00 a.m. - 4'00 p.m. with a representative of each section on duty from 4'00 p.m. - 4 45 p.m. This includes the switchboard. 13 All coffee breaks will be 15 minutes in length and will be allowed only in the lunch room between the hours of9:30 a.m. - 10:30 a.m. and 2:00 p.m. - 3'00 p.m. No food or beverages will be allowed at desks at any time. This will be done on a trial basis in an effort not to have structured rotating coffee breaks. If staff wish to have a coffee prior to commencing work it should be before 8'00 a.m. 5 .......\ \ " 4 ~.. - 14 Lunch will be eaten in either the training Room or lunchroom between the hours of 11.45 a.m. - I IS p.m., the shifts are as follows: Admin., Drafting & Ottawa 11 45 a.m. - 12.30 p.m. Townships, Nepean & Gloucester 12.30 p.m. - 115 p.m. In May of the same year, the same Comrillssioner notified all staff of a set schedule for coffee breaks. - In order to reduce noise level and to better accommodate staff in the lunchroom effective Tuesday, May 6, 1986 coffee breaks will be scheduled as follows: Ottawa East 9:30 - 9.45 2:00 - 2.15 Ottawa West 9'45 - 10.00 2:15 - 2:30 Administration 9:30 - 9.45 2:00-2.15 Mapping 9'45 - 1000 2.15 - 2.30 Townships 10.00 - 10.15 2.30-2.45 Nepean & -10'15 - 10:30 2:45 -3.00 Gloucester In addition, everyone must be out of the lunchroom by 8:00 a.m. and those Sections who (sic) are scheduled to have their lunch between II 45 and 12:30 must be out of the lunchroom by I2:30promptly This schedule will benefit everyone and will provide more room in the lunchroom. ) These two memoranda to staff are mdicatIve of the precise nature of the schedulIng wluch appears to be m place at the RegIonal Assessment Office. At the .same time there IS the flexible practice o(Mr Laflamme WIth respect to assessors compensating for hours witlun the week. In November 1992, prior to the Open Houses, CormmsslOner Hillman Issued the followmg gUIdelines for the open house sessions. Meal Allowances: Meal allowance (dinner) for open houses within 24 km will be paid under provisions of ~pecial non-recurring circumstances. Receipts are required for meals claimed by staff working within 24 km. Receipts are not required for staff outside the 24 km range unless the claim exceeds the allowable amount. Staff are encouraged when attending the open houses to take at least one half hour break for dinner Managers at the various locations will co-ordinate the dinner hour to ensure staff have the appropriate time to have their meal. Staff working ~ the office from November 10 through November 19 are allowed a meal allowance as stated above. 6 \ ,. \...- Hours of Work: \ As per the provision of Schedule A employees may accumulate any averaging hours in excess of 7 1/4 hours on a daily basis. /' Example: An assessor is working in an open house location until 8.30 p.m. and choses to start work at 8'00 a.m. Starts work at 8:00 a.m. Leaves the R.A.O office at 11 15 a.m. for the open house. Starts work at the open house at 12.30 p..m. Has a dinner break of 45 minutes Leaves the open house at 8.30 p.m. Arrives at his home at 8.4? p.m. Therefore total hours 8'00 a.m. to 8.45 p.m. = 123/4 Lunch break - 45 minutes. Dinner break - 45 minutes Total hours worked 12.75 - 1.50 = 11.25 ( Weekly log would indicate + 4 hours, averaging of hours. Note: Travel time when leaving the open house is to be claimed as the lesser of the time reported to travel to your home or the R.A.O Hours of Work (Clerical D C.O) The same guidelines apply to that stated for the assessors with the following exceptions: travel time associated with going to and from the open house location is recorded at straight time. Overtime worked over 7 1/4 hours is recorded at time and a half. Mileage Revenue Officers, Tax AudItors and Property Assessors complete a form wInch covers each fiscal year on a weekly basis. The standard hours are set out, taking into account statutory holidays, and In cases where the number of actual hours worked dIffers from the number of standard hours, the number of hours worked that week IS noted along With the difference between the standard hours and the actual hours worked. A cumulatIve balance is maintained, so that at the end of the fiscal year one can calculate the total hours for compensatIon, subtract the number of hours taken and arnve at the "total hours to be paId (at regular hourly rate). These do not mclude the hours wInch are compensated for through tIme within the week. Mr Laflamme 7 ~ .J testified that dunng the 11 years he has served as ValuatIon Manager, the optIon of being paId for those hours worked above standard hours, has not been avfulable. ) From April 1, 1990 to March 31,.1991, Mr Claydon worked 6 hours over the stan,dard and compensated for that by takmg 6 hours off. He fimshed the fiscal year with a zero balance. From April 1 , 1992 to March 31, 1992 he worked a total of 8.25 hours ONer the standard hours and in compensated for that by takmg 8.25 hours off. However, in 1992/1993, Mr Claydon had accumulated conSIderably more hours above the standard hours. As of December 4, 1992, Just after the Open Houses, he showed a balance tinder "ElectIve Average Hours" of 64 75 He had accumulated all of these, WIth the exception of 5, during the three week penod of the Open Houses when he attended these on each day they were held, that IS on 12 days. The followmg post-gnevance memorandum to lum demonstrates how the Employer manages the hours over I and above the standard hours. January 7, 1993 , MEMORANDUM TO' Jim Claydon MEMORANDUM FROM. Jacques Laflamme Valuation Manager SUBJECT AVERAGING OF HOURS Ou~ recordsrindicate that you have 61.25 hours accumulated under the provision of averaging of hours. ~ A reminder that these hours must be used prior to March 31, 1993 Please inform me, on or before January 12, 1993 when you would like to use your outstanding averaging of hours. Approval of your request will be subject to operational requirements. Thank you for your co-operation. Mr Claydon was of the opmion that as he had a grievance pendmg regarding this t1IIle, that he should not be reqUIred to take the days off. Mr Laflamme, however, did not concur, and by the '" end of the fiscal year, March 31, 1993, Mr Claydon had reduced tlns number to a zero balance r 8 / ~' 4:-' by takmg a combmation of full and part days off. Mr Claydon testIfied that there wa~ never any agreement that he would take the above-standard hours tIme as compensatory tIme Argument , Mr Ryder argued that the Grievor does not meet either of the condItIons m Schedule A df AppendIx 3 He does not work more than the number of hours per week prescribed at regularly recurring times of the year, nor c;re "the number of hours per week" that he works "normally Irregular " . ) The first condItion, Mr Ryder submitted, requIres that the excess hours must occur at regularly recurnng tImes of the year However, there are no duties, Mr Ryder asserted, that the Gnevor I and lus fellow assessors must perform at regularly recurnng tImes of the year, mcluding those involved m the court and other heanng processes, late-afternoon coverage and base-year aild annual open houses. The best eVIdence of the allocatIOn of hours of work, he submItted, com,es from the Averaging of Hours Worked forms, even tholigh all the hours are not recorded, It is substantIally accurate. The 1990-1991 and 1991-1992 forms, wluch do not include the base-year open house hours, demonstrate that excess hours from those duties wluch are recorded, occur more or less regularly throughout the year The 1992-1993 Averaging of Hours Worked form IS the only document on wluch a characterization of the excess hours resultmg from the base-year open houses can be made. Mr Ryder argued that the base-year open houses do not occur every year but every 4 years and therefore they do not meet the reqUlrement of recurring at "regularly recumng times of the year", implying that hours or events must be annual. They are dIstmgUlshable from the annual open houses m that they are dIfferent m duration, locatIOn and dutIes, and in the nUmber) of excess hours accumulated. There IS no eVIdence, he maintamed, that the annual open houses produce any excess hours. Other excess hours do not occur at regularly recumng tunes of the year, instead, they are scattered throughout the year Therefore, the fIrst condItIon IS not met, Mr Ryder submItted. 9 ~, _1 "7 Mr Ryder went on to consIder the second conditIOn, that the number of hours per week be normally irregular He revIewed the hours In the months prior to the base-year open houses In November of 1992 anq characterized them as follows. Apnl fully r~gular , May only 3 hours excess June fully regular July fully regular August 2.75 hours outsIde the norm September 2 hours outsIde the norm October 75 hours outsIde the norm November irregular hours (but only once every 3/4/5 years) December irregular hours (but only once every 3/4/5 years) Mr Ryder submItted as well that In 1991 most months, as recorded, were normal. He argued that the second condItion precedent does not eXIst. In conclusion, Mr Ryder submItted that ReIther condItion precedent eXIsts for the applIcation of Appendix 3 wInch means that the Employer is not entitled to resort to AppendIX 3 to avoid overtIme. ~t also means that the excess hours must be dealt with under ArtIcle 13 \ He referred the Panel to OPSEU (Lepage) and The Crown in Right of Ontario (Ministry of the Environment) GSB 2247/90, 1991 (Venty), and submItted that Ifthe~Board concludes that neIther of the condItions IS met, then the remedy ordered In Lepage IS appropnate. In that case, the Panel found that Schedule A (Appendix 3) prOVIdes for the averaging of hours of work over a one r year penod. "where the duties of a civil servant require: \ \ - that he work more than the number of hours per week prescribed at regularly recurring times of the year, or - that the number of hours per week be normally irregular" 10 ~ ( i ~ The Schedule provides that the averaging period for each class or position will conform to the calendar year and that the hours of work for averaging purp()ses shall be either 36 1/4 hours per week or 40 hours per week: There is also a provision for changing the hours per week, the recording of hours worked, the requirement to take time off where there is an "excessive buildup of hours worked and the calculation of the basic hourly rate of pay" Schedule A goes on to provide that at the end of the averaging period, "any excess hour" "overand above the annual hours requirement" shall be treated as overtime. Employees are then compensated for overtime, as the Schedule provides, "normally" by payment at regular basic hourly rates (straight time) or by compensating time off in specified circumstances. Weare satisfied that the primary focus of Schedule A is the averaging of hours of work which is specified to apply' "where the duties of a civil servant require: - that he work more than the number of hours per week prescribed at regularly recurring times of the year, or .. that the number of hours per week be normally irregular" On the facts of the instant matter, the parties agree that the grievor meets neither of the above conditions. Accordingly, it cannot be said that the grievor is currently encompassed by the language of Schedule A and cannot be treated for overtime purposes as if she were a Schedule A employee. On the-~ubmissions before us, it would appear that the grievor's hours of work are those described in Article 7 1 for Schedule 3 and 3 7 employees. Ther~fore, for purposes of overtime, she must be compensated in accord with Article 13 1 and credited for all hours performed in addition to 7-1/4 hours per day that have not already been compensated at straight time. We agree that it is not the function of the grievance Settlement Board to transfer any employee from one schedule to another Clearly, that is within the jurisdicyon of management. We do have jurisdiction, however, to determine whether the grievor is properly placed within the scope of Schedule A. Having determined that she cannot fit within the language of that Schedule then she must be entitled to remedy Accordingly, this grievance must succeed. I Paul Young, for the Employer, submItted that the Issue IS not, whether Mr Claydon should be m and out of Schedule A, but It is for liS to examme whether or not he IS properly wIthm Schedule A. Wlule the Employer acknowledges that the base-year open houses are tImes when P A4s are reqUIred to work more than the normal hours per week, the Employer belIeves that the duties of Mr Claydon fit eIther of the two qualIfiers in Schedule A. Mr Young submItted that, while the Union states that the open houses fail short in that they only occur once 11 ) ---- - ..-..., ~ ...",). :; every four years, no mInImum is stated and so as long as they recur regularly, there IS not a mIIDmum threshold whIch must bedeared. In a non-base year, the open houses run a mmImum of 3 to 4 days and the only difference between the two IS the length which IS not that sIgnificant (3/4 days and 3 weeks) and there IS no minimum requirement under the first condItion. Mr Young submItted further that the court work also brings Mr Claydon mto Schedule A. The heavy period falls into the May to September period annually and therefore meets the critenon of recurring at regular tImes of the year Mr Young noted that all the P A4s at the Ottawa-Carleton "- office are mvolved m tllis, and that the fact that, m llindsIght, Mr Claydon does not appear to have worked a lot of excess hours m relatIOn to the courts, but these are no. dIfferent from open houses. They are based on expectatIOn and whether or not a case carnes over mto excess hours, depends on chance. There .IS;' Mr Y Ol,lng submItt~d, an expectation that a lot of the assessors will spend extra tIme at the courts and tribunals and one cannot at the end of the year say, "I dId not work enough hours; therefore I should have overtune" A system cannot work that way It would not make sense for an employee to come m and out of Schedule A based solely on a lliIidsIght exammation of actual hours as opposed to looking at the expectation that he/she will be reqUIred to work more that a specific number of hours per week at certain tImes of the year EIther on their own, or in combmatIOn, the coUFts and tribunals are sufficient to put Mr Claydon wIthm the first condItion. The late. sllift rotation would meet tlus critenon as well. Mr Young also submItted that Mr Claydon meets the second condItion whIch would '\ bnng hIm WIthm Schedule A. There are, he stated, reqUIrements based on reasonable expectatIons "not to down tools" at 1600 hours wlnle a ratepayer is at the counter or on the telephone. TIns would not show up on an Averaging Hours Worked form as they are cancelled' out WItlun the week. The informal evening excess hours can be conSIdered, he submItted, to be , Irregular on a regular basIS and It IS only in hIndsight that would give an indIcation of how It has played out. Some of the requIrements of the pOSItion of assessor are at regularly recumng times of the year, while others occur on a day-to-day basIS. The Employer has, Mr Young argued, properly placed Mr Claydon WItlun Schedule A 12 \ r I \-- c and JS entItled to average Ius hours under Excessive Buildup of Hours Worked and-Hours Worked Over Annual Requirement set out m AppendIX 3 Counsel agree that once one of the precondItIOns of Schedule A IS met that It IS acceptable for the Employer to have Mr Claydon use up his hours as mdIcated by Mr Laflamme m hIS memorandum of January 7, 1993, supra. Decision The Board's decisIOn on the prelImInary matter confirmed the Employer's authonty to assign an employee to Schedule A, and concluded that the Board had the Juriswction to reVIew whether or not the duties of an employee met the cntena set out In Schedule A of AppendIX 3 of I the 1992/1993 Collective Agreement. ThIs deCISIOn looks at the narrow,issue of whether the dutIes of Mr Jim Claydon, Seruor Property Assessor (P A4) satisfy one of the follOWIng condItIOns. -, (1) he or she must work more than the number of hours per week prescribed at regularly recurring times of the year, or (2) the number of hours per week must be normally irregular When an employee IS assigned to Schedule A, his or her hours are averaged and that employee does not then qualIfy for overtime (tune and a half) under Article 13 - OvertIme. The Union takes the positIOn that Mr Claydon' S dutIes, do not satisfy eIther condition, while the Employer's pOSItIOn is that they satISfy both. Mr Claydon IS one of 200 Senior Property Assessors (PA4s) workIng throughout the ProvInce and the pattern of Ius duties IS similar to those of other P A4s In the Ottawa-Carleton office and may be sunilar to those In the 31 other ( assessment offices throughout the ProvInce. The Panel, haVIng taken Into account the eVIdence and arguments of the partIes, has approached ItS consideration of whether or not the dutIes fit the condItIOns by first determInIng the meamng of each condItion and then relatIng the eVIdence of the time reqwrements of the I dutIes of Mr Claydon to ItS Interpretation of these conditIOns. The Panel members have concluded that a more detailed consideration of the meaning of the condItIOns In Schedule A IS 11 - - - - - -- -- - - - - - - - ~ \,,) '? warranted than was carrIed out m Lepage. In that case, It was noted that The. issue involves the proper interpretation of Schedule "A" The Union does not challenge the transfer of the grievor froll! Schedule 6 to Schedule A which occurred in 1986 The argument is whether the grievor fits within the scope of Schedule A for overtime purposes. The parties agree that the panel has jurisdiction to detennine if the grievor fits within the language of Schedule A. In other words, is she what the Employer says she is? Neither party argued that the terms of Schedule A are ambiguous. The matter is said to be one of firs( impression. [Emphasis added] I It IS the opmIOn of tlus Panel that the language of the condItions requIred for the duties of a CIvil servant to meet the averagmg reqwrement of Schedule A are, as stated m Lepage, not ambIguous; but the Panel does not agree that the language is "of first ImpressIOn" Rather, tlus Panel has concluded, after examination and analysis that the language results m some faIrly specIfic and clear lnmtations. It IS particularly, the mc1USIOn of the quahfiers "regularly recurnng" and "normally" wmch lead us to tlus conclusion. Our analYSIS follows. I The introductIOn to the condItions reads as follows The number of hours of work per week prescribed shall be computed as a weekly average over one (1) year, where the duties of a civil servant require: \ [Emphasis added] "Where", m tlns context, means, "in SItuatIOns in wmch" or "in cases m which" That IS not ambIguous or unusual. What It does not mean is "where the employer expects the duties of a civil servant to reqUIre" If the Employer'beheves that the hours related to a certain posItion are gomg to meet one of the condItions and they In fact do not, that then, IS not a SItuatIOn m WhIch the dutIes of a CIvil servant meet one of the followm~ conditions. As well, tlus mtroductIOn does not refer to a claSSIficatIon or category of employees but to "the dutIes of a CIvil servant", that IS to the dutI,es of an mdIvIdual civil servant. Therefore, an assessment of whether or not the dutIes of CIvIl servants fit Wlthm Schedule A mvolves the assessment of the dutIes of "a" civil servant; that is, the dutIes of an indIVIdual ciVIl servant, rather than of a classificatIOn, class, or group of employees. 14 r \.; The prescribed number of hours of work required by the Employer of Mr Clay don IS 36.25 hours (adjusted some weeks for statutory holidays) per week. Any-hours he works over and above those are excess hours, The fact that b.e comes m later and stays iater on the rotatIon is of no sigmficance because it does not result in excess hours at the end of the week. The same IS true of the unrecorded hours compensated for within the week. Further, the Employer's eVIdence respectmg these hours was ImpreCIse and dId not relate specifically to Mr Claydon. The pomt made by the Employer that the Schedule A employee IS not expected to "down tools" at the time the work day is offiCIally over IS not, we hope, as the Employer Implied, lImIted to this group of CIvil servants. Surely one would not expect a CIVIl servant whose hours are not averaged to tell a \ member of the publIc conductmg bonafide busmess that the CIvIl servant's workmg day had - fimshed and that he or she was leavmg, (because he or she was not under Schedule A) Court and tribunal sittmgs and the schedulIng of them cannot, based on the eVIdence, be SaId to be regularly recurring, m spite of the fact that they occur more freqlJently dunng the Max to September penod. The schedulmgof them IS not in the hands of the Ministry of Fmance. The Courts and the Assessmel}.t Review Board are administered by the Ministry of the Attorney General, while the OntarIo Municipal Board comes under the aegIS of the Ministry of MuniCIpal AffaIrs. The tribunals work throughout the Provmce and there was no mdicatIon that there was a regular, fix~d-tlme cirCUIt whIch they mamtained, neither was there eVIdence that there IS any regular pattern to theIr scheduling. Indeed, the case wluch mvolved MrClaydon, and wluch lasted for four or five months, illustrates the difficulty of imposmg or expectmg any regular ~schedule. The phrase "at regularly recurring times of the year" requires mterpretation. "The year" could be the calendar year or the fiscal year or any other twelve.,.month penod. However, the averagmg period IS defined m Schedule A as follows. The averaging penod for each class andlor position. - will conform to the twelve (12) month calendar period which reflects the work cycle of that class and/or position, and ) - will be reported to the barg~ining agent. 15 - """ I -:; / The wordmg ':the year" allows for a vanatIOn, and when read With the descnptIOn of the "averagmg penod" willch follows, the Panel considered that tills Employer has had a practIce of usmg the fiscal year for ~ts averaging for assessors. There was no eVIdence that thIS has been problematIc, and the Urnon would have been aware of the practice over the years. It can be assumed, therefore, that the fiscal year, willch m this case is from April 1st to March 31st, IS the 6alendar to be apphed to the assessors and would apply m the phrase. W orkmg backwards m the phrase, It should be noted that "times of the year" IS plural. In other words, the employee must work excess hours at least mor~ than one time dunng the year What does a "time" consist of? Is it a day, a week, a month, the duratIOn of a specIfic actIvity such as court heanngs or open houses, or IS It some other urnt ? The urnt used for averagmg1s "the week prescribed" whIch m Mr Claydon's case is 36.25 hours (adjusted some weeks for statutory hohdays) The mtroductIOn to the condItions refers to "a weekly average" It seems reasonable then, to use the week as the urnt for "times" If Mr Claydon accumulates excess hours over three days, dunng a week, he IS consIdered to have worked excess hours one tIme smce the excess hours are arrived at on a weekly, not on a daily basIS. Does "times of the year" refer to frequency or to points of tIme throughout the fiscal year? In the opinion of the Panel It must means points of tIme throughout the.fiscal year If It were to mean frequency, It would say, 'tunes dunng the year' or 'times m the year' In other words, It does not mean twelve, twenty or forty tiIl!es m'the fiscal year, without reference to the calendar, but rather means for example, every Tuesday, the first Monday m each month, or the thud week of each month, every second month or quarterly Nor does It mean once a year,-the first week m November, for example, smce "times" IS plural. , These tImes throughout the fiscal year are to be "recurring", that is, they must be repeated. Therefore, the "times"_ or weeks when excess hours occur must take place more than once. There IS nothmg which says that the recurrence should involve the same activity These 16 -~._. f?~ ',( "times" or weeks are to recur regularly whIch mdIcates that a smgle recurrence that IS, excess hours dunng two weeks, IS not sufficIent. The Oxford Universal Dictionary defines "regular" m a number of ways, among them, and thIS is most apposite to the wordmg at hand "Recurnng \ or repeated at fixed times or uniform intervals" FIxed tImes would indicate that the times are set m advance throughout the fiscal year, while lIDiform intervals would mdIcate that the times are spaced umfor;mly apart and occur, for example, every week, bi-weekly, every month, bI- monthly, quarterly, every trimester-or every season throughout the fiscal year In other words, the tImes must be fixed or the mtervals between the tImes must be umform, there must be a regular pattern. The Panel IS of the opIruon that the wordmg and Its meaning allows for (a) r"times" or weeks fixed m advance throughout the fiscal year which need not be umformly spaced, or (b) "times" or weeks throughout the fiscal year at uniformly spaced intervals which need not be fixed m advance; or (c) a combination of (a) and (b) The first condition in this case then, means that "The number of hours of work per week , I prescribed shall be computed as a weekly average over one (1) year, where the duties of a CIvil servant reqUIre that he work more than 36.25 hours (adjusted some weeks for statutory j I I holidays) per week at more than two fixed and/or uniformly spaced weeks throughout the I fiscal year, Aprillst to March 3ist. The Employer does not assIgn1m employee to a Schedule A in hindsight, or after the fact. Nor IS It enVISIOned m the wordmg of the Collective Agreement that the employee should move m and out of Schedule A. The recorded hours worked by Mr Claydon which were submItted to the Board are cited below for the lImIted purpose of examIrung the tIme' reqwrements of lus dutIes. Mr Claydon's records of "Averagmg 0fHours Worked" forms for Revenue Officers, Tax AudItors and Property Assessors were submItted for a three year period. They show the followmg for Mr Claydon. 17 " "-, ..;; . April 1, 1990 to March 311991 Mr Claydon worked excess hours during the weeks of October 5th and November 30th, 1990 April 1, 1991 to March 31, 1992 Mr Claydon worked excess hours during the weeks of May 3, 1991, November 15, 1991 and December 13, 1991 April 1, 1992 to March 30, 1993 Mr Claydon worked excess hours dunng the weeks of May 22, 1992, Aug 14, 1992, August 29, 1992, Septemb~r 4, 1992, October 9, 1992, November 20, 1992, November 27, 1992 and December 4, 192. Based solely on this written record, In the first year cited, Mr Claydon's record shows excess hours for only two weeks and, In consequence, lus dutIes do -not meet the more than two weeks of excess hours reqUirement. In the second year, the record shows excess hours, for three weeks and the two week reqUirement IS met. There IS no evidence that the times were fixed In advance. The weeks worked are not at uniformly spaced intervals. In the third year, Mr Claydon worked excess hours dunng eight weeks. There was eVIdence that the last three weeks were fixed In advance. The weeks worked are not at uniformly spaced intervals. The evidence of Mr Laflamme, Mr Claydon's supervisor, that he regularly allowed adjustments for Mr Claydbn and other Property Assessors by having IndiVidual employees take compensatory tune off WIthm the week If he/she had worked excess hours, has no effect on the "regularly recurnng" weeks gIven that no excess hours resulted from the weeks that the'within-the-week compensatory tune took place. , Mr Claydon's excess hours are neIther predictable, nor do they show a pattern which could be described as "regularly recurring" His dutIes do not, therefore, fit WItlun the meanIng ofthe first condItIon of AveragIng of Hours of Work set out In AppendIx 3, Schedule A. 18 '" .~"- \ .. Y The second condItion IS "that the number of hours per week be normally irregular" The basIS for determinmg whether the time requIrements ofMr Claydon's dutIes fall withm tills condItIOn IS the number of hours per week prescribed as regular, that IS, 36.25 hours (adjusted some weeks for statutory hohdays) per week. The Board has not included the devIatIOn for statutory hohdays m Its consideration of what constItutes "normally Irregular" For the number of hours per week to be "normally Irregular", the number of weeks WItlun the fiscal year WIth irregular hours must be greater than the number of weeks m the fiscal year with regular hours. GIven that these are weeks of work, they must take mto account that vacatIon weeks are not \ workmg weeks. Therefore, at a minimum the number of worlang weeks, m order to estabhsh "normally irregular" must be 52 weeks, minUS vacatIon entItlement, which In the case ofMr Claydon was at the tIme oihIs gnevance 2 1/12 days per month, or 25 worlang days per year, whIch in weeks, is 5 weeks. Therefore, to be " normally irregular" the number of hours whIch IS above or below 36.25 must exceed ~ of47 whIch IS 23 ~ whIch rounded up IS 24, in the case of Mr Claydon. The Panel is not suggesting that tlus should be a precise mathematIcal calculatIOn, but It has calculated the hours in the SItuatIon of Mr Claydon to ill~strate the ) dIscrepancies. April 1, 1990 to March 31,1991 Mr Claydon worked irregular hours for 6 weeks during this fiscal year which does not.meet the mrmmum of half the weeks worked requued under the s~cond condItIon. j April 1, 1991 to March 31, 1992 Mr Claydon worked Irregular hours for 7 weeks dunng tlus fiscal year whIch does not meet the mIIDmum of half the weeks worked required under the second condItIon. April 1, 1992 to March 31, 1993 In tlus fiscal year, Mr Claydon worked 16 weeks of Irregular hours whIch does not meet the minImum reqUIrement of half of the weeks worked bemg Irregular 19 ~~ r. i The number of weeks WIth Irregular hours dunng the fiscal years submItted In evidence were 6, 7 I and 16 In none of these years dId Mr Claydon' s weeks of irregular hours exceed 24 and therefore, cannot be SaId to be normally Irregular WIthin the fiscal year When averaged over the three-year period the number of weeks with Irregular hours is between 9 and 10, once agaIn below the nurp.ber required for the hours to be "normally irregular" The Panel has concluded m hne With Lepage, that for overtIme purposes at tImes presented, (1990-1991, 1991-1992 and 1992-1993) Mr Claydon' s dutIes dId not fit wIthIn Sch~dule A, and that the gnevance must succeed. Mr Claydonsought compensatIOn only for overtIme he ClaImed he worked at the Open Houses in November and December 1992 WIth the optIOn of either compensatIOn, or time off at time and a half for that penod. He IS entItled to remedy, that is overtIme payor compensating tIme under ArtIcle 13, whIch IS at tIme and a half. Mr Claydon has, albeIt unwillmgly,- taken the excess days and so he has already receIved the "tIme" However, he is still due, under thIs award, compensatIon for the "half' of excess hours whIch he worked during November and December, in the 1992 with interest, or time in lieu. The Board, therefore, orders the Mimstry of Finance to compensate Mr Claydon accordmgly The deCISIon as to whether the cOfIlpensation should be In money or tIme IS left to the Employer WIth the follOWing condition, that if tIme IS selected, a tIme value for Interest is to be Included. The Panel Will remaIn seIzed In the event that the partIes reqUIre our aSSIstance In the \ implementatlon..Qf thIS award. ~ Dated at - // B??J2---vv Z '- ":i s/ ~ d./ . rJ!z/JU~/0 / / / 7/b ~ l U D M. ~lark;:: ff ~(~ --- W S Rannay~~~ 20 - --