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HomeMy WebLinkAbout2017-3192.Lim.18-07-12 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB# 2017-3192 UNION# 2017-0599-0017 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Lim) Union - and - The Crown in Right of Ontario (Ministry of Finance) Employer BEFORE Barry B. Fisher Arbitrator FOR THE UNION Seung Chi Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Justin O’Gorman Treasury Board Secretariat Centre for Employee Relations Employee Relations Advisor HEARING July 4, 2018 -2- DECISION [1] This is a case under Article 22.16 of the Collective Agreement. [2] The Grievor is an EHT Tax Auditor and has been such since 1993. [3] There are two aspects to the grievance. 1) Vacation Pay Issue: [4] This matter has been resolved during the mediation stage as I assessed the damages at $50, which the Employer agreed to pay. 2) Harassment and Bad Faith Allegation: [5] This matter could not be resolved at mediation, so the matter was arbitrated. The only witness was the Grievor. [6] The relevant provision of the Collective Agreement is Article 3.3, which reads as follows: 1. The Parties are committed to a workplace free from workplace harassment, including bullying, by other employees, supervisors, managers, any other person working or providing services to the Employer in the workplace, clients or the public, in accordance with the law. Workplace harassment is engaging in a course of vexatious comment or conduct against an employee in the workplace that is known or ought reasonably to be known to be unwelcome. [7] The Union particularized three incidents under this heading. [8] First, the Grievor alleges that her Manager allocated less hours for her to complete her audits than was set out in the Audit and Inspections Manual. [9] In effect this Manual sets out guidelines to the Manager in determining how much time an auditor is allotted to complete an audit. The guideline is based on the payroll size of the client. For clients with a payroll less than 1 million dollars, the guideline is 25 hours. For payrolls between 10 and 100 million the guideline calls for 50 hours and for clients with payroll is excess of 100 million, the guideline is 75 hours. [10] The Manual also sets out a process for the auditor to request from her Manager additional hours to complete the task. -3- [11] On direct examination the Grievor testified that just recently she had been assigned a client with a payroll in excess of 100 million dollars but only allocated 60 hours instead of the 75 hours set out in the guideline. Similarly, she was assigned only 30 hours to a company with a payroll of approximately 14 million when the guideline refers to 50 hours and lastly she was assigned only 15 hours to a small client when the guideline refers to 25 hours. [12] On cross examination she testified that in the past whenever she requested additional hours from this Manager for a specific audit, he always approved the request. [13] I find that this Manager acted well within his powers to assign the Grievor the hours that he did and doing so is neither harassment nor a bad faith exercise of management rights. The Manual speaks to a guideline only while stating clearly that “The audit manager is responsible for assigning the initial time on the audit.” A guideline implies that the Manager has a discretion to either assign more or less hours than the guideline. Moreover, the Grievor’s own testimony is that whenever she asked for more time, she got it. [14] The second allegation is that the Manager unfairly denied her permission to take an educational course. In fact, what happened was the Manager said “no” to her first choice as he felt it was not related to her work but said ‘yes” to her alternate choice. The Grievor was asked by her manager to tell him in writing why she thought her first choice was work related. The Grievor felt that this request for a written submission constituted bullying. [15] I disagree. Again, the Manager exercised his right and obligation to assess her request based on whether it was work related. His request for her written submission was also very reasonable. [16] Lastly, the Manager and the Grievor had a dispute arising from the interpretation of a medical note. Upon a return to work the Grievor presented a medical note which stated that she was to return to work half days and then indicated a time period of 10 to 2, in other words 4 hours per day. As the Grievor did not work a 40- hour work week but rather 36.25 hours, half time would actually be 3.625 hours a day instead of 4 hours. [17] In other words, this dispute was over 22.5 minutes a day. In fact, it was not even over that much because the only difference between working 22.5 minutes and being on sick leave for the same period is the value of the vacation pay top up, which is 25% of that amount. [18] Thus, the real dispute was over about 5 minutes a day. [19] It is not necessary for me to decide in this case who was right and who was wrong regarding the issue of the 5 minutes, as managements’ actions, do not arise to the level of either harassment or the bad faith exercise of management rights. -4- [20] The grievance is allowed insofar as the Grievor is entitled to receive vacation pay in the sum of $50.00. This money should be paid out as soon as practicably possible. [21] I retain jurisdiction over all issues regarding the implementation and or interpretation of this award. Dated at Toronto, Ontario this 12th day of July, 2018. “Barry B. Fisher” ______________________ Barry B. Fisher, Arbitrator