HomeMy WebLinkAbout2018-2509.McGann.19-05-07 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# 2018-2509
UNION# 2018-0526-0035
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(McGann) Union
- and -
The Crown in Right of Ontario
(Ministry of the Attorney General) Employer
BEFORE
Barry Fisher
Arbitrator
FOR THE UNION
Allison Vanek
Ontario Public Service Employees Union
Grievance Officer
FOR THE EMPLOYER Stewart McMahon
Treasury Board Secretariat
Legal Services Branch
Senior Counsel
HEARING March 18, 2019
-2-
DECISION
[1] This is an article 22.16 matter.
[2] This case involves an issue relating to the application of Article 22.5.1, which
reads as follows:
22.5.1 An employee who is a grievor or complainant and who makes application,
through the Union, for a hearing before the GSB or the Ontario Labour Relations
Board (OLRB) shall be allowed leave of absence with no loss of pay and with no
loss of credits, if required to be in attendance by the Board or Tribunal. Article
22.5.1 shall also apply to pre-hearings, mediation/arbitration or mediation under
auspices of the GSB or OLRB.
[3] On June 25, 2018 the Grievor attended at the GSB for a hearing on one of his
grievances. The case was finished by noon. The grievor works at the courts at
393 University Ave, Toronto as a part-Time Civil Courtroom Registrar/Clerk. The
courthouse is within a few minutes walking distance of the GSB.
[4] The Grievor communicated with his supervisor who told him he could either go
home and use his credits to get paid for the rest of the day or he could report for
work. The Grievor decided to report to work. He was assigned clerk duties which
was his regular assignment.
[5] The Collective Agreement provides that this classification is entitled to be paid for
a minimum of 1500 hours per annum which is to be paid in 26 equal installments.
This means that over a two week period the employee will be paid for a minimum
of 57.5 hours or 5.75 hours per day.
[6] The Grievor was paid for 6 hours.
[7] The Grievors complaint is that he should have been paid for 7.5 hours because if
he had not been at the GSB that day that he probably would have been assigned
to court duty and would have worked at least 7.5 hours. The difference of 1.5
hours is about $40.00.
[8] There are multiple problems with the Grievors’ position:
1) Because of an ongoing dispute about accommodation, the Grievor was not
being assigned court duty around that time and thus there is no possibility
that even if he would not have attended at the GSB that day that he would
have been assigned court duties. Thus there is no chance that he would
have been assigned more clerical duties than the 6 hours he was paid for.
-3-
2) There is no right for this classification to be assigned more than the
minimum guaranteed hours. As stated by Arbitrator Briggs in OPSEU v
MAG (2009-2689):
A review of Appendix 32 reveal, at paragraph (b) that “the employer
maintains the right to schedule employees beyond the minimum hours for
category 1 and 2 above”. It further sets out how additional hours worked
will be compensated. However, it provides no Employer obligation to
schedule hours beyond “the minimum hours for category 1 and 2”. Again, I
could find nothing in the Collective Agreement or any Memorandum of
Agreement that provides a right of the FTP to work beyond their minimum
annual hours.”
3) The Union led no evidence that on the day in question any of the PT Civil
Courtroom Registrar / Clerks in the University Courthouse worked any more
hours than those for which the Grievor was paid.
4) Even if he had been assigned more than 6 hours work that day, there would
be nothing to prevent the Employer from reducing his hours on some other
day within that pay period as long as he still gets paid his 57.5 hour
minimum. This would mean that his paycheck for that week would have
been the same.
[9] After the argument of this case, the Union requested that the Grievor be allowed
to withdraw the grievance. The employer objected.
[10] I am refusing the Union request because this is an important matter that needs to
be resolved now and not kicked down the road to another occasion. The Grievor
has other outstanding GSB matters, which will be scheduled in the future so the
same fact situation is likely to reoccur. There is no valid reason that this issue
can’t be decided now.
[11] The grievance is dismissed.
Dated at Toronto, Ontario this 7th day of May, 2019.
“Barry Fisher”
______________________
Barry Fisher, Arbitrator