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Home My WebLink About1996-0675CORNEY99_02_05 ----=-",.. .~J ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SElTLEMENT REGLEMENT BOARD DES GRIEFS t80 DUNDAS STREET WEST SUITE 600, TORONTO ON M5G tZ8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G tZ8 FACSIMILE/TELECOPIE (416) 326-1396 GSB # 0675/96 OPSEU # 96F230-240 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano Pubhc ServIce Employees Umon (Corney et al) Grievors - and - The Crown III RIght of OntarIO (Mimstry of Fmance) Employer BEFORE RIchard M. Brown V Ice-Chair FOR THE Peggy SmIth GRIEVORS Counsel, EllIOt, SmIth Bamsters & Sohcltors FOR THE Len Marvy EMPLOYER Counsel, Legal ServIces Branch Management Board Secretanat HEARING January 25, 1999 - - The partIes have consolidated eleven mdlvldual grievances filed by JackIe Corney, Valerie Robmson, Alice Futter, TerrI Kltchmg, Eileen Nott, VIlolet Wherry, Margaret Millar, Jean Fawcett, Johanne MercIer, Momque Doucet and Robert Locke As theIr grievances were heard m an expedIted fashIOn as part of the backlog proceedmgs, the partIes agreed thIS decIsIOn IS not to be used as a precedent In other cases The grievances allege these employees were not allowed an adequate VOice m the schedulIng of tIme off WhICh they took m lieu of reCeIVIng overtIme pay The overtime was worked In February of 1996 There was a strike In the OPS from February 26 until March 31, and the grIevors returned to work on April 1 On April 3, theIr manager told them compensatIng tIme off had to be taken dUring the next month. The gnevors complied wIth thIS dIrectIve Under the terms of the 1992-93 collective agreement, the gnevors would have been entItled to payment at the rate of time and one-half for overtIme However, thIS entItlement was altered durIng the penod covered by the Soczal Contract Act Paragraph 4 of the Local AppendIX to the Sectoral Framework Agreement reqUired them to take compensatmg tIme off ThIs paragraph goes on to say The compensatIng leave IS to be taken m accordance WIth the prIncIples m ArtIcle 13 6 of the collectIve agreement. TIme off IS to be scheduled In such a manner that expected operatIOnal reqUirements are met and that compensatIng time off wIll not, except In the most unusual sItuatIOns, result In any replacement costs beIng generated. To the extent possible, plans for the scheduling of time off shall be jomtly developed by the employees and local management. (emphasIs added) Artlcle13 6 states 2 - ~ Compensatmg leave accumulated m a calendar year WhICh IS not used before March 31 of the next year shall be paid at the rate It was earned. Effective March 31, 1978, the March 31 date may be extended by agreement at the local or mmIstry level (emphaSIS added) At the hearmg, the Issue between the partIes was reduced to one of remedy There IS no longer any real Issue as to whether a breach of contract occurred. WhIle contendmg management acted m good faith, employer counsel concedes the oblIgatIOn to Jomtly develop plans for time off was not fulfilled. The contractual deadlme for takmg compensatmg leave for 1996 overtIme was March 31, 1997, accordmg to artIcle 13 6 as mcorporated by the Local AppendIx. The manager changed thIS deadlme to May 3, 1996, WIthout any dIscussIOn WIth the employees affected. ThIS change contravened the obhgatIOn to develop plans "Jomtly" to the extent possIble As most of the gnevors are no longer employed m the OPS, counsel for the umon contends they should be paid at the rate of time and one half for the hours worked m February of 1996 Employer counsel submIts they are not entItled to any relIef by way of damages Counsel for the employer contends the Soczal Contract Act prevents me from awardmg compensatIOn relatmg to overtIme In my VIew, thIS argument cannot succeed. The statute does lImIt the power of an mterest arbItrator to grant an mcrease m compensatIOn, but It does not curtail the authonty of a nghts arbItrator to enforce contractual oblIgatIOns whIch themselves do not contravene the legIslatIOn, such as an entItlement to partICIpate m the scheduhng of paid time off. The enforcement of contractual nghts does not constitute an mcrease m compensatIOn wIthm the meamng of the Act 3 - J Counsel for the umon contends the appropnate remedy IS compensatIOn at the overtime rate for the hours m questIOn. In support of thIS argument, counsel relIes m part upon the portIOn of article 13 6 statmg employees shall be pald for compensatIng leave not used before the March 31, deadlIne The dIfficulty wIth thIS argument IS that artIcle 13 6 does not address the sItuation of employees, lIke the gnevors, who have actually taken compensatmg time off Umon counsel also relIes upon the decIsIOn m OPSEU (Cameron et al) and Ministry of Revenue, GSB No 0164/86, dated January 21,1988 The gnevors In that case were entitled to reasonable notice of the deadlme for takIng compensatIng leave and some of them were not gIven such notIce For the employees who dId not receIve adequate notIce, the Board added the overtIme hours to theIr banks, even though they already had taken compensatIng tIme off. In the case at hand, the VIOlatIOn lIes In the employer's fallure to JOIntly develop a plan, not In any faIlure to gIve reasonable notice As the Issue In thIS case IS dIfferent than In Cameron, the umon relIes upon that deCISIOn by way of analogy, not as a precedent dIrectly on pOInt. Rather than applYIng Cameron by analogy, I have decIded to be gmded by the objectIve whIch underlIes the deSIgn of contractual remedIes The purpose of awardIng damages IS to place a gnevor In a pOSItIon as close as pOSSIble to the one he or she would have held but for the breach of contract. In determInIng how to accomplIsh thIS objectIve In the CIrcumstances at hand, I begIn WIth two premIses (1) the tIme off taken by each of the gnevors had some value to hIm or her; and (2) thIS tIme off was of less value to the IndIVIdual than leave taken accordIng to a JOIntly developed plan. These premIses lead to the follOWIng conclusIOns 4 - ~ A wardmg overtIme pay as proposed by umon counsel would place each gnevor m pOSItIOn more favourable than he or she would have occupied If no breach had occurred, because the mdIvIdual would get the monetary eqUIvalent of hIS or her contractual entItlement as well as compensatmg tIme off A wardmg no damages as proposed by employer counsel would leave each gnevor worse off than If no breach had occurred, because the leave already taken IS of less value than each gnevor's entItlement under the contract. The gnevors are entitled to the dIfference between the value of leave actually taken and the value of leave scheduled accordmg to a Jomtly developed plan. These values cannot be quantIfied readIly because they are non-monetary and vary from one person to the next. The law of contract allows recovery for non-economIC loss notwIthstandmg problems of quantIficatIOn. A reasonable estImate IS that the leave taken IS worth one- half as much as the leave to whIch the gnevor's were entItled. Accordmgly, the employer IS dIrected to pay each of the gnevors at the overtIme rate for one-half of the hours worked m February of 1996 RIchard M. Brown, VIce-ChaIr Ottawa, OntarIO February 5 1999 5