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HomeMy WebLinkAbout1993-0723.Cruz.94-03-07 ONTARIO EMPLOYES DE'LA COURONNE ) CROWN EMPLOYEES DE L'ONTARIO .~ GRIEVANCE COMMISSION DE 1111 SETTLEMENT , REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO, MSG IZ8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2.100 TORONTO (ONTARIO), M5G IZ8 FACSIMILE /TELE COPIE (476) 326-1396 723/93 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT , Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Cruz) - Grievor - and - The Crown in Right of ontario (Ministry of Correctional services) E~ployer BEFORE N. Oissanayake Vice-Chairperson ~ \, FOR THE G. Adams . GRIEVOR Grievance Officer On~ario Public SerVice Employees Union '" FOR THE B. Ross EMPLOYER' Grievance Administration Officer Ministry of Correctionq1 Services I I HEARING February 28, 1994 ~ "- ~ ~. <!' 2 DECISION j' This matter was heard pursuant to the expedited arbitration procedure contained in the collective agreement between the parties The grievor Mr. Adolfo Cruz is a Correctional Officer 2 at th~ Metro Toronto East Detention Centre. On April 12, 1993 he' was scheduled off on a normal d~y off April 12, 1993 happened to be a statutory holiday On AprilS, 1993 Mr. Cruz made a request 'i:hat he be permitted to work on that day. This request was denied. Unclassified staff were called in and worked on April 12, 1993. In tlis grievance dated April 22" 1993, Mr. Cruz claims that. the employer's action was unfair. It is common ground that as a general matter the decision on the staffing complement required for any particular day is an exclusive function of the employer pursuant to section 18 (1) of the Crown Employees Collective Barqaininq Act. Pursuant 1:;0 this management right, the employer has established a written policy relating to staffing on stat\ltory holidays. Mr. Kevin Cowie, Deputy superintendent of the Toronto East Detention Centre testified as to the purpose of the policy. He stated that on statutory holidays for a variety of reasons the programming within the institution is reduced and that there is a need to adjust staffing levels i!l ~.... 3 accordingly. ae testified that the written policy has always been interpreted by the employer in such a manner that any employee who is scheduled to be on his regular day off on a statutory holiday is not inc~uded in the surplus officer list from which employees are called in 'to work on statutory ~ holidays He testified that under the policy, the only circum~tance under which such an employee may be called in to work on a statutory holiday is where the employer has exhausted the procedure for staffing set out in the policy without being able to find the required number of employees. The union submits that while the wording of the written policy is not very clear, it can reasonably be interpreted to include a broader range of officers in the surplus officer list Such a broad interpretation would include employees even though they are on their regular day off on the statutory holiday. The union urged me to interpret the written policy of the employer in that manner, and to direct that the grievor be paid statutory holiday pay for April 12, 1993 as if he had - worked that day This grievance must fail. The employer has exercised an exclusive management right and has unilaterally established a policy on how to exercise it The evidence is uncontradicted that the intent of the policy was to exclude employees who are on their scheduled regular day off on a statutory holiday r ~. i~ 4 The policy has been applied in this manner consistently Even if the union is correct that t~e language in the written pOlicy is capable of a different meaning, I have no jurisdiction to objectively interpret a policy unilaterally established by the employer pursuant to its exclusive management rights and to hold that the employer is bound by it, when the evidence is clear as to what the employer subjectively intended bY the language used There is no- suggestion that there was any bad faith in the manner in which the employer exercised, it~ exclusive management right. Nor is it claimed that any provision of the collective agreement had been contravened In the circumstances, the mere fact that the employer used imprecise language to put its intention into written form in a management document gives the unio;n no rights which it otherwise would not have had. Accordingly, this grievance is hereby dismissed Dated this 7th day o~ March, 1994 at Hamilton, ontario ~~C:J4 ~ .' -..-- c-_._ ---~ Nimal V Dlssanayake Vice-ChairperSlon -,~- ~~ - -- -~---- -- -~ '-~- --