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HomeMy WebLinkAbout2018-3598.Kerr et al.19-10-28 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# 2018-3598 UNION# 2018-0430-0021 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Kerr et al) Union - and - The Crown in Right of Ontario (Ministry of Transportation) Employer BEFORE Kevin Banks Arbitrator FOR THE UNION Erin Thorson Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Janet Sinclair Treasury Board Secretariat Employee Relations Advisory Services Team Lead HEARING October 22, 2019 -2- DECISION [1] The parties have referred this matter to expedited mediation-arbitration in accordance with Article 22.16 of the Collective Agreement. The parties agree that I have jurisdiction to decide it. Under Article 22.16, where the parties are unable to resolve their differences through mediation, the arbitrator is to expeditiously issue a succinct decision without precedential value, unless the parties agree otherwise. [2] The hearing took place on October 22, 2019. I received evidence and submissions from the Union and the Employer. [3] The grievance alleges that the Employer failed to distribute overtime that it authorized Mr. Justin Smit to work on February 14, March 29 and May 24, 2018 fairly and equitably, because it had failed to develop methods of distributing overtime at the local workplace that are fair and equitable, contrary to Article UN 8.2.1 of the Collective Agreement. [4] The Employer submits that Article UN 8.2.1 does not apply to the overtime that Mr. Smit worked because that overtime was authorized by mistake, one that the Employer did not discover until after it had been worked. The Employer maintains that any method of distributing overtime could only apply to overtime that it actually anticipated assigning. The Employer says that it does develop fair and equitable methods to distribute overtime before it undertakes projects that it anticipates will require overtime. [5] The evidence shows that Mr. Smit worked the hours in question because of a good faith scheduling mistake by the Employer, and that the Employer did not discover the mistake until after he had worked them. [6] Having carefully considered the evidence put before me, the submissions of the parties, and the language of the relevant provisions of the Collective Agreement, I have concluded that there was no breach of the Collective Agreement. In my view, in Article UN 8.2.1 the term “assignment” does not refer to a situation such as this one in which the Employer was not aware at the relevant time, due to a good faith error, that it had authorized overtime. As this is sufficient to decide on the grievance, I make no other findings. [7] The grievance is dismissed. Dated at Toronto, Ontario this 28th day of October, 2019. “Kevin Banks” ______________________ Kevin Banks, Arbitrator