HomeMy WebLinkAbout2007-1668.Gauthier.08-10-17 Decision
Commission de
Crown Employees
Grievance Settlement
règlement des griefs
Board
des employés de la
Couronne
Suite 600 Bureau 600
180 Dundas St. West180, rue Dundas Ouest
Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8
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Fa
2007-1668, 2007-2100
GSB#
2007-0603-0002, 2007-0611-0004
UNION#
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Gauthier et al.)
Union
- and -
The Crown in Right of Ontario
(Ministry of Natural Resources)
Employer
BEFORE Nimal Dissanayake Vice-Chair
FOR THE UNIONMark Barclay
Grievance Officer
Ontario Public Service Employees Union
FOR THE EMPLOYER Felix Lau
Counsel
Ministry of Government Services
HEARING October 10, 2008.
Decision
[1] This decision concerns group grievances filed by Mr. Mark Gauthier
and Mr. Brent Howell, seasonal crew leaders working out of the Sault Ste
Marie and Wawa Fire Management Headquarters. The grievors have
grieved that members of their crews were required to take their scheduled
days off, while out of district and type 2 (Contract) fire crews worked on
those days. They claim that as members of the local crews they should have
been allowed to perform that work on overtime instead.
[2] The parties referred this matter to me pursuant to the
Mediation/Arbitration procedure set out in article 22.16 of the collective
agreement.
[3] The employer?s position is that the assignment of the overtime work in
question was made in accordance with Ministry Directive No. FM:3:05
which governs all fire staff within the Ministry. In deciding to assign the
overtime work to the other crews, the employer took into account (1)
financial considerations of minimizing overtime costs and (2) safety
considerations of ensuring that fatigued employees are not assigned to work.
[4] The union submits that it is unfair to assign available overtime
opportunities to out of district and contract crews, when local crew members
are willing and available to work. Mr. Barclay characterises that as an
unreasonable exercise of management discretion. He submits that the
Ministry directive allows sufficient discretion to management, that the work
could have been assigned to the grievors without violating the directive, and
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that at least once in the past, the employer had assigned overtime to local
crew members in similar circumstances. He relied on article UN 8.2.1.,
which provides:
In the assignment of overtime, the employer agrees to
develop methods of distributing overtime at the local
workplace that are fair and equitable after having
ensured that all its operational requirements are met.
[5] Article UN 8.2.1., however, has no application to seasonal employees
such as the grievors. (See article 32.21.2). In any event, there is no
evidence that the employer?s exercise of discretion in assigning the overtime
in question was tainted by any illegitimate or irrelevant considerations.
While the grievors? disappointment is not difficult to understand, it cannot
be concluded that the employer acted in bad faith or acted so unreasonably
as would justify the intervention by this Board.
[6] In the circumstances the grievances are denied.
th
Dated at Toronto, this 17 day of October 2008.
____________________________________
Nimal Dissanayake
Vice-Chair
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