HomeMy WebLinkAbout2019-1254.Tuck.20-09-30 DecisionCrown Employees
Grievance Settlement
Board
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180 Dundas St. West
Toronto, Ontario M5G 1Z8
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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# 2019-1254
UNION# 2019-0128-0001
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Tuck) Union
- and -
The Crown in Right of Ontario
(Ministry of the Solicitor General) Employer
BEFORE
Gail Misra
Arbitrator
FOR THE UNION
Dan Sidsworth
Ontario Public Service Employees Union
Grievance Officer
FOR THE EMPLOYER Michelle LaButte
Treasury Board Secretariat
Employee Relations Advisor
HEARING July 10 and September 28, 2020 (by
videoconference)
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DECISION
[1] Since the spring of 2000 the parties have been meeting regularly to address matters of
mutual interest which have arisen as the result of the Ministry of Community Safety and
Correctional Services (now, the Ministry of the Solicitor General) as well as the Ministry
of Children and Youth Services restructuring initiatives around the Province. Through
the MERC (Ministry Employment Relations Committee) a subcommittee was established
to deal with issues arising from the transition process. The parties have negotiated a
series of MERC agreements setting out the process for how organizational changes will
unfold for Correctional and Youth Services staff and for non-Correctional and non-Youth
Services staff.
[2] The parties agreed that this Board would remain seized of all issues that arise through
this process and it is this agreement that provides me the jurisdiction to resolve the
outstanding matters.
[3] Over the years as some institutions and/or youth centres decommissioned or reduced in
size others were built or expanded. The parties have made efforts to identify vacancies
and positions and the procedures for the filling of those positions as they become
available.
[4] The parties have also negotiated a number of agreements that provide for the “roll-over”
of fixed term staff to regular (classified) employee status.
[5] Hundreds of grievances have been filed as the result of the many changes that have
taken place at provincial institutions. The transition subcommittee has, with the
assistance of this Board, mediated numerous disputes. Others have come before this
Board for disposition.
[6] It was determined by this Board at the outset that the process for these disputes would
be somewhat more expedient. To that end, grievances are presented by way of
statements of fact and succinct submissions. On occasion, clarification has been sought
from grievors and institutional managers at the request of the Board. This process has
served the parties well. The decisions are without prejudice but attempt to provide
guidance for future disputes.
[7] Holly Tuck is a Fixed Term (“FXT”) Correctional Officer (“CO”) at the Sarnia Jail. She
filed a grievance on May 28, 2019 claiming that the Employer had violated Articles 2.1,
3.1, 9.1 and Appendix COR1 of the collective agreement. By way of remedy, among
other things, the Grievor seeks to have her hours accurately calculated and to be made
whole.
[8] The Grievor had taken a maternity leave commencing on May 1, 2017, but believes that
the Employer has incorrectly calculated the hours that should be credited to her for the
-3-
period she was off work on maternity leave, as she should be credited with 40 hours per
week for the time she was on maternity leave, but the Employer has credited her with
less time.
[9] Based on a review of Ms. Tuck’s hours looking back from May 1, 2017, for the 13
previous weeks she worked prior to the commencement of her maternity leave, it is clear
that the average of her hours is 32.65 hours per week. That is what the Employer had
calculated.
[10] Pursuant to Article 18.1.1, “Effective December 20, 1990, any leaves of absence granted
under Article 31.9 (Fixed Term Employees – Pregnancy and Parental Leave) … shall be
included in the calculation of length of continuous service”. However, Article 18.1.1(b)
also states that an employee’s length of continuous service will accumulate (upon the
completion of a probationary period) based on the “actual number of full-time weeks
worked by a full-time fixed-term employee during his or her full-time employment back to
the first break in employment which is greater than thirteen (13) weeks”.
[11] In the Grievance Settlement Board decision Ontario Public Service Employees Union v.
Ontario (Ministry of Public Safety and Security), 2003 CanLII 52996 (ON GSB), (Briggs),
at p. 3, the Vice Chair noted as follows:
For the purposes of calculating straight-time hours for unclassified employees under
Appendix 24 for this agreement the parties have agreed that authorized leaves granted
to unclassified employees during their unclassified employment will be treated as
follows:
(A) Paid bereavement or paid sick leave: Credit paid hours toward
unclassified seniority.
(B) Unpaid sick leave:
(i) scheduled shifts: Credit number of hours in the scheduled shifts
missed due to illness
(ii) other periods: utilize “Leave Formula”: “Calculate employee’s
average weekly hours from the last day the employee worked
before going on the leave going back 13 weeks. Credit weekly
average over the 13 weeks for each week of leave.”
Medical documentation as per the collective agreement will be required.
(C) Pregnancy leave, parental leave, military leave, jury duty leave, union
leave or WSIB leave: Leave Formula: “Calculate employee’s average
weekly hours from the last day the employee worked before going on the
leave going back 13 weeks. Credit weekly average over the 13 weeks for
each week of the leave.
(D) Other authorized leaves such as vacation leave, statutory holiday leave,
special leave, leave without pay: No Credit, however period on these
authorized leaves shall not be considered a break in service.
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[12] Based on the above decision, it is clear that the Grievor’s situation falls within sub-
paragraph (C). As such, the calculation of her average weekly hours was to be
calculated from the last day she worked before going on maternity leave, going back 13
weeks, and she was to be credited with the weekly average of those 13 weeks for each
week of her maternity leave.
[13] Having considered the facts, and the submissions of the parties, and for the reasons
outlined above, I find that the Employer had correctly calculated the Grievor’s hours while
she was on maternity leave, and this grievance is therefore dismissed.
Dated at Toronto, Ontario this 30th day of September, 2020.
“Gail Misra”
_____________________
Gail Misra, Arbitrator