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Home My WebLink About1996-0824ADDORISIO96_07_25 .,...., I ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT , REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON MOO 1Z8 TELEPHONEITELEPHONE (418) 328-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) MOO 1Z8 FACSIMILEITELECOPIE (418) 328-13SHJ GSB # 824/96 OPSEU # 96F433 XN THE MATTER OP AN ARBXTRATXON Under THE CROWN EMPLOYEES COLLECTXVB BARGAXNXNG ACT Before THB GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Addorisio) Grievor - and - The Crown in Right of Ontario (Ministry of the Solicitor General & Correctional Services) Employer BEPORE R J. Roberts Vice-Chairperson POR THE G. Leeb GRXEVOR Grievance Officer Ontario Public Service Employees Union POR THE G. Basanta EMPLOYER Grievance Administration Officer Ministry of the Solicitor General & Correctional serivces HEARXNG July 23, 1996 .,. 1 AWARD In the gnevance leadmg to the present arbItratIOn, the gnevor claImed that when she was reqUIred to work as an essentIal worker durmg the strIke, she was entItled to two consecutIve days off between work weeks. At the outset of the hearmg, the employer made two prelImmary ObjectIOns to JUrISdIctIOn to hear thIS grIevance The first was that under artIcle 10.2 (b) of the Return to Work Protocol executed by the partIes on March 29, 1996 the mstant gnevance was barred. The second was that under artIcle 5 of the Memorandum of Settlement executed by the partIes on June 13, 1996, the gnevance was wIthdrawn. For reasons WhICh follow, the prelImmary ObjectIOns are dIsmIssed. On the ments, It IS concluded that the grIevor was entItled to two consecutIve days off between work weeks and was entItled to relIef for mstances m whIch thIS dId not occur The two contractual prOVlSlons upon whIch the employer based ItS prelImmary ObjectIOns read as follows -- 2 Return to Work Protocol lOON 0 Repnsals 10.2 It IS agreed that (b) neIther party WIll ImtIate any gnevance or any claim in any court or tribunal for damages or other rehef, or any other claIm, for any matter ansmg dunng the strike, and WIll dIscontmue any that have been mItiated, Memorandum of Settlement 5 Subject to paragraphs 1, 2, 10 and 11, all gnevances where the facts that gave nse to the gnevance are contamed m the same penod as the strike are hereby wIthdrawn. It IS agreed that cases of suspenSIOn [ or] dIsmIssal, If any, shall be processed m accordance with the partIes' understandmg on expedIted arbItratIOn process It IS further agreed that where there has been a change m an employee's workmg condItIOns that are of a contmumg matenal change, the matter shall be processed m accordance wIth the partIes' understandmg of expedIted arbItratIOn process. Turnmg first to the Return to Work Protocol, artIcle 10.2 (b), above, counsel for the employer submItted that the gnevance at hand fell squarely wIthm ItS scope The gnevance concerned a matter that arose dunng the stnke and, as such, It was submItted, pursuant to artIcle 10.2(b) the umon had expressly agreed to dIscontmue It. In an oral deCISIon rendered at the hearmg, I dIsmIssed thIS ground ofprehmmary obJectIOn. To apply artIcle 10.2 (b) of the Return to Work Protocol as suggested by the employer would, I concluded, Ignore the thrust of the overall provlSlon of whIch It formed a part. ArtIcle 10 0 of the Return to Work Protocol was entitled "No Repnsals", and It IS that context whIch must govern I 3 the scope of artIcle lO 2 (b) ThIs essentIally means that m artIcle lO 2(b), the umon agree alia to dlscontmue any gnevances that mIght properly be charactenzed as repnsals agam employer for matters that arose dunng the stnke Here, the gnevance cannot be charactenzed as a form of repnsal It merely seeks rehef for an alleged admmlstratIve fallure by the employer, i. e , to schedule essentIal workers wIth two consecutIve days off between work weeks Proceedmg on to artIcle 5 of the Memorandum of Settlement, above, counsel for the employer submItted that Its opemng sentence had the effect ofwlthdrawmg "all gnevances where the facts that gave nse to the gnevance are contamed m the same penod as the stnke " Smce the facts gIvmg nse to the gnevance at hand occurred dunng the penod of the stnke, counsel went on, the umon effectIvely wIthdrew the gnevance when It agreed to artIcle 5 In an oral decIsIOn rendered at the hearmg, I also rejected thIS ground of prehmmary obJectIOn. It seemed to me that, when read alongsIde the other artIcles m the Memorandum of Settlement, artIcle 5 could not be mterpreted as some sort of ommbus wIthdrawal of gnevances that depended upon facts that occurred dunng the stnke If that were so, the partIes would not have found It necessary to negotIate a number of other provISIOns mto the Memorandum of Agreement that wIthdrew speCIfic types of gnevances. For example, artIcle 6 wIthdrew gnevances requestmg premIUm payments for persons desIgnated as emergency workers dunng the stnke ArtIcle 4 wIthdrew all gnevances clalmmg payment due to a staggered start for the stnke I concluded that the better VIew would be to find that the partIes mtended the general language m -~ 4 the opemng sentence of artIcle 5 to wIthdraw gnevances that were not preserved m the more specIfic types of CIrcumstances addressed m the remamder of the artIcle For example, the second sentence of artIcle 5 expressly preserved gnevances for suspensIOn or dIsmIssal Readmg the two sentences together, It would seem that the partIes mtended to wIthdraw grIevances for less severe dIscIplme, hke verbal or wrItten warmngs, so long as the dIscIplme dId not constitute a repnsal (DIscIplme constItutmg a repnsal was forbIdden in artIcle 100 of the Return to Work Protocol.) In the present case, the gnevance was based upon an arbItratIOn declSlon that was Issued by arbItrator FehcIty Bnggs on March 1, 1996, dunng the mItIal stage of the strIke ThIS declSlon read as follows Issue m DIspute Scheduhng of non-consecutIve days off DeCISIon. In accordance wIth the CollectIve Agreement and Central Agreement, non-consecutIve days off cannot be scheduled after the first 48 hour penod of the stnke Any VIOlatIOn shall be redressed m accordance wIth the Collective Agreement. In my opmIOn, there was nothmg m artIcle 5 ofthe Memorandum of Settlement effectIvely to wIthdraw a gnevance that sought rehef for an alleged breach of thIS declSlon. Accordmgly, I took JunsdIctIOn of the matter and proceeded to consIder the ments ofthe case Upon the ments, the employer conceded that If It dId not schedule two consecutIve days off between work weeks, It VIOlated the reqUirements of the declSlon of arbItrator BrIggs and was hable for each VIOlatIOn. After hearmg representatIOns from the employer and the umon I I 5 regardmg the appropnate remedy for such vIOlatIOns, I made the followmg award. (1) Where an employee only receIved one day off between two complete work weeks, he or she shall be compensated WIth one day off WIth pay for each vIOlatIOn, said day off to be taken at a tlme mutually agreed between the employer and employee, WIth agreement on the part of the employer not to be unreasonably WIthheld, (2) Where an employee had two non-consecutlve days offm a penod of two complete work weeks, he or she shall be granted an extra half-days' pay for each vIOlatIOn, saId half-day of pay to be attnbuted to the work day followmg the first day off, effeCtlvely mcreasmg compensatIOn for that day to tlme-and-one-half (3) The matter IS remItted to the partIes m thIS posture I WIll retamJunsdIctIOn pendmg ImplementatIOn of the terms of thIS award. Dated at Toronto, OntarIO thIS c-:5~ day of July 1996