HomeMy WebLinkAbout2019-1890.Eckert.21-01-01 Decision
Crown 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# 2019-1890
UNION# 2019-0584-0004
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Eckert) Union
- and -
The Crown in Right of Ontario
(Ontario Clean Water Agency) Employer
BEFORE Nimal Dissanayake Arbitrator
FOR THE UNION Anjana Kashyap
Ontario Public Service Employees Union
Grievance Officer
FOR THE EMPLOYER Maria-Kristina Ascenzi
Treasury Board Secretariat
Legal Services Branch
Counsel
HEARING January 28, 2021
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Decision
[1] An individual grievance dated October 22, 2019 filed by Mr. Chris Eckert
(“grievor”) came before the Board for determination pursuant to article 22.16 of
the collective agreement. Mediation was not successful. Evidence was
received on several issues, followed by submissions.
[2] At the outset I note that at the request of the employer the Board had issued a
comprehensive order dated December 15, 2020, that the union provide
particulars to the employer. The order stated inter alia, that “If the union fails
to provide particulars of an allegation in compliance with this order, it may not
introduce evidence about that allegation in this proceeding without leave”.
Accordingly, I have not given weight to assertions not particularized and were
raised for the first time during the union’s evidence.
[3] The grievance alleges that the grievor was denied a twelve-hour overtime shift
that became available on July 7, 2019 and that the employer thereby
contravened articles 2, 3 and UN 8.2.1 of the collective agreement.
[4] Article 2 is the management rights clause.
[5] Article UN 8.2.1 reads:
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 operation requirements.
The article does not require that the employer have one method for distribution of
overtime, written or otherwise. It refers to “methods” in the plural. That in my view
is a recognition that one method of distributing overtime that meets operational
requirements in one situation may not meet operation requirements in another, for
example where work required to be done is different. When a need for overtime
arises the employer is entitled to assign it as it sees fit, subject only to the fair and
equitable distribution requirement in article UN 8.2.1, having ensured that its
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operational requirements in the particular circumstances have been met. Article
UN 8.2.1 does not require distribution of overtime based on seniority.
[6] Article 3 prohibits discrimination on grounds specified in section 10(1) of the
Ontario Human Rights Code, and harassment. The management rights of the
employer in article 2 are stated to be “subject only to provisions of the central
collective agreement and any other collective agreement to which the parties are
subject”. Therefore, since article 3 was not pursued, in order to succeed the union
has to establish a violation of article UN 8.2.1. The only obligation that article
imposes on the employer is to develop fair and equitable methods of distributing
overtime. It provides that fairness and equity is to be assessed “at the local
workplace”. In this case that is the Peel South Transmission Systems facility.
[7] The obligation imposed on the employer by the article to develop fair and equitable
methods of distributing overtime is explicitly made conditional on “having ensured
that all its operational requirements are met”. On the basis of the evidence, I find
that the manner in which the shift in question was assigned was not contrary to
article UN 8.2.1. The evidence does not establish that the grievor had been treated
unfairly or inequitably in relation to overtime. Compared to other employees the
grievor had performed more overtime hours in 2019 than most other employees at
the Peel South facility. The employee who was assigned the overtime shift in
question had performed significantly less overtime hours than the grievor, and was
qualified to the needed work.
[8] Therefore I find that there has been no violation of the collective agreement and
the grievance is hereby dismissed.
Dated at Toronto, Ontario this 1st day of February, 2021.
“Nimal Dissanayake”
________________________
Nimal Dissanayake, Arbitrator