HomeMy WebLinkAbout2003-0167.Union.09-04-22 Decision2009 - OPSEU (Union et al) and Ministry of Community Safety and Correctional Services, GSB#2003-0167, (Abramsky)
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#2003-0167, 2004-0111 UNION#2003-0999-0011, 2004-0108-0059
IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Union et al/Lucan)
Union -and -The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Randi H. Abramsky Vice-Chair FOR THE UNION Richard Blair Ryder Wright
Blair & Holmes, LLP Barristers and Solicitors FOR THE EMPLOYER Len Hatzis Ministry of Government Services Counsel HEARING April 20, 2009.
2 Decision [1] My initial award in this matter was made on January 4, 2007. I have heard submissions from the parties and have been engaged in mediation over a number of days concerning
the manner of implementation of my award. As a result of the efforts and agreement of the parties, the agreement attached as Appendix 1 to this Order, reflecting the findings in my original
Award, has been reached and is hereby issued as an order of the Board. Dated at Toronto this 22nd day of April 2009. Randi H. Abramsky, Vice-Chair
GSB NOS. 2003-0167,2004-0111,2004-0 1 12.2004-01 13 MEMORANDCJM OF SETTLEMENT BETWEEN OPSEU (Union/Lucan) -and -THE CROWN IN RIGHT OF ONTARIO (Ministry of Government Services) (Employer)
Whereas the Union filed a Policy Grievance dated March 27,2003 ("the Policy Grievance"); and, Whereas the Grievor filed three grievances dated March 8,2004 and March 12,2004 (2) ("the
Lucan Grievances") And whereas the grievances raise issues concerning (1) whether unclassified employees should have hours paid by the Workplace Safety and Insurance Board ("WSIB") courit
towards rnerit increases and; (2) whether unclassified employees should accrue attendance credits for any period of time in which the employee was in receipt of WSIB benefits or on an
approved WSIB absence and; (3) whether unclassified employees who are subsequently appointed to the classified service should have their continuous service date adjusted to include any
period of time in which the unclassified employee was in receipt of WSIB benefits or on an approved WSIB absence; And whereas Vice Chair Abrarnsky of the Grievance Settlement Board ("GSB")
issued an Award on the above noted grievances dated January 4.2007 ("the Award"); And whereas the parties wish to settle on a full and final basis any and all of the remedial issues
of any kind whatsoever that are in way related to the grievances and the Award on the following terms: 1 . The Employer agrees to permit unclassified and/or seasonal employees who are
or were, subsequent to February 1,2005 appointed to the classified service to have their continuous service date adjusted to include a period of time in which the unclassified and/or
seasonal employee was in receipt of WSIB benefits or on an approved WSIB absence. For greater clarity, the Employer shall recalculate the seniority of classified employees who: (a) Have
previous unclassified (or seasonal) employment; and
(b) Were in receipt of WSlB benefits or on an approved WSlB absence anytime during their previous unclassified (or seasonal) period of employment; and (c) Whose previous unclassitied
(or seasonal) service is included in the employees' seniorityllength of continuous service in accordance with Article 18.1 (b), (c) or (d) of the OPSEU Collective Agreement. The parties
agree to utilize the Calculation Agreement as attached to this settlement, Appendix A, for implementation purposes. 2. In the case of employees who were appointed to the classified service
on or prior to February 1, 2005, who have filed a grievance with an effective date of February 1, 2005 or earlier raising in whole or in part the third issue noted in the preamble (seniority
for an unclassified or seasonal employee associated with an approved WSIB absence or for a period of time in receipt of WSIB benefits or on an approved WSIB absence), the Employer agrees
to adjust their continuous service date to include the period of time on WSIB benefits or on an approved WSIB absence prior to their appointment to the classified service in the same
manner as it is adjusted in paragraph one. 3. The Employer agrees to compensate any employee for lost vacation benefits, as a result of not having their continuous service date adjusted
in accordance with paragraph 1 and 2. 4. The parties agree that in accordance with the Award, any and all unclassified (or seasonal) employees are not entitled to earn or accrue attendance
credits for any period of time in which the employee was in receipt of WSIB benefits or on an approved WSIB absence. The Collective Agreement (January 1,2005 to December 3 1,2008) at
Articles 3 1A.8.1 and 32.16.1.1 details the issue of attendance credits for unclassified (or seasonal) employees. 5. The Employer agrees that it shall not seek to recover any money from
an unclassified (or seasonal) employee who already received attendance credits for any period of time in which the employee was in receipt of WSIB benefits or on an approved WSIB absence.
6. The parties agree that in accordance with the Award, in the event an unclassified (or seasonal) employee is in receipt of WSIB benefits or on an approved WSIB absence, the hours paid
by WSIB shall not count towards merit increases. The Collective Agreement (January 1,2005 to December 3 1, 2008) at Article 3 1 A.2.2 and 32.6 details the issue of merit increases for
unclassified (or seasonal) employees. 7. The Employer agrees that it shall not seek to recover any money from an unclassified or seasonal employee who may have already received merit
increases for any period of time in which the employee was in receipt of WSIB benefits or on an approved WSIB absence. 8. The parties agree that any grievances, even apart from those
referred to in this settlement that solely raise one or more of the issues detailed in the preamble to this settlement are settled on a full and final basis and are withdrawn upon execution
of this settlement. To be clear, the terms of this settlement will be applied to all similar grievances tiled. All known grievances are attached hereto as Appendix B.
9. The parties agree that this settlement satisfies all claims, demands, actions, causes of action of any sort in any way related to the subject matter of the above noted Policy and
Lucan grievances and any grievance (even in addition to those referred to in this settlement) that solely relates to one or more of the three issues described in the preamble to this
settlement including but not limited to claims, monies and/or termination pay associated with individuals who are no longer employees of the Employer as of the date of the Award The
parties agree to release the Employer, its agents or representatives from any and all such claims, demands, actions or complaints or differences in any way related to the subject matter
of the Policy and Lucan grievances and any grievance that solely relates to one or more of the three issues described in the preamble to this settlement, including but not limited to
all claims under the Human Rights Code, the Employment Standards Act and the Public Sewice Act and all claims, demands by individuals no longer employed by the Employer as of the date
of this Settlement associated with termination pay and vacation entitlements. To be clear, with respect to affected grievers, any adjustments for termination pay applicable to any grievor
who has filed a grievance that predates the Award and has left the Ontario Public Service shall be payable and these individuals shall be compensated for any termination pay owed. 10.
The Union agrees to issue a communication (a) outlining the relevant portions of this settlement (paragraphs 1-6) to those members who could be potentially affected by these portions
of the Settlement, and (b) requesting that members who believe their seniority is affected by the Award, to approach their managers and provide supporting documentation where available.
The Employer agrees that upon the completion of steps (a) and (b), if requested, it will provide an opportunity for the member to review the Employer's relevant documentation in this
context. 1 1. The parties agree that GSB Vice-Chair Abramsky shall remain seized of any dispute between them regarding the interpretation and implementation of this agreement. othday
of April, 2009 at Toronto, Ontario. ->x-\ I v For the Employer For the Union For the Employer
Appendix A Calculations of WSlB Continuous Service MEMORANDUM OF UNDERSTANDING BETWEEN: ONTARIO PUBLIC SERVICE EMPLOYEES UNION (Union) And THE CROWN IN RIGHT OF ONTARIO (MINISTRY OF
GOVERNMENT SERVICES) (Employer) 1. The Parties agree that the period(s) of approved WSlB leave taken by an employee during his or her unclassified service immediately prior to appointment
to the classified service back to the first break in employment that is greater than 13 weeks, shall be included in the continuous service date ("CSD") calculation. 2. In determining
the CSD credit for the period(s) of approved WSlB leave while employed as an unclassified employee, the Parties agree to apply the following formula: a) The total number of weeks of
approved WSlB leave shall be determined and the employer shall count backwards an equal number of weeks immediately preceding the beginning of the approved WSlB leave. The employer will
then review these work weeks to determine how many full-time work weeks are to be credited for the period of the approved leave. b) When calculating the work weeks backwards, if the
employee has not been err~ployedth e equal nurr~bero f work weeks as the absence, the employer will determine the percentage of work weeks where the employee worked full-time hours during
their employment and shall credit the employee with the same percentage of work weeks during the approved leave. c) Partial weeks will be included in the calculation such that hours
absent on approved WSlB leave shall be combined with hours worked to determine whether the work week is a full time week worked for CSD purposes. 3. a) For the purposes of calculation
under paragraph 2, where the period immediately preceding the leave in question includes a period of approved WSlB leave, the weeks included as full time weeks worked for the calculation
shall include the weeks already calculated in accordance with paragraph 2 for the earlier approved WSlB leave, if any. For example, where an employee has worked 6 out 10 weeks full time,
and is then absent for ten weeks on an approved WSlB leave, that employee shall be credited with six weeks of continuous service in respect of the first approved WSlB leave. If the employee,
after a return to work, is subsequently absent on approved WSlB leave for 20 weeks, and the period of time immediately preceding that subsequent leave which is reviewed to calculate
continuous service overlaps the earlier WSlB leave, the employee would be deemed to have worked 6 full-time weeks during the period of the earlier 10-week WSIB leave for the purposes
of calculating the number of full-time weeks in the second leave.
-b) Weeks of full time service attributed to WSlB leave shall be deemed to have occurred'in' equal distribution across the period of WSlB leave. For example, in the case of a 20 week
approved WSlB leave in which an employee who, pursuant to the calculation in Paragraph 2 is entitled to a credit of four full time weeks for CS purposes, the four weeks shall be deemed
to have occurred in weeks 5, 10, 15, and 20 of the approved leave. Where the weeks do not fall evenly, they shall be deemed to occur in the next week. For example, in a case of a 17
week approved WSlB leave in which an employee who, pursuant to the calculation in Paragraph 2 is entitled to a credit of three full time weeks for CS purposes, the three weeks would
be initially deemed (by dividing 17 weeks by three weeks) to fall at weeks 5.6, 1 1.2, and 17. However, in this example, the weeks would be then moved to the next weeks within the,approved
leave and deemed to fall at 6, 12, and 17 respectively. 4. In the case of employees who are absent on WSlB leave for "blocks" of contiguous partial weeks (more than one partial week
in a row during which the employee works some hours but is on approved WSlB leave for other hours, including, but not limited to, employees on work-hardening or similar gradual return-to-work
protocols), the number of full time weeks worked will be calculated in the same manner as paragraph 2 c) and, where applicable, 3 above. 5. In the case of partial week absences, the
parties agree to amend the records to include any work week hours approved by WSlB to determine the full-time work weeks pursuant to paragraph 2 c) above. 6. The Parties agree that no
employee shall have their CSD reduced as a result of these calculations. 7. Should the relevant provisions of the Collective Agreement or other applicable Acts or Regulations be amended,
the Parties shall incorporate the amendments into this memorandum. 8. With the consent of both Parties, this settlement may be amended at any time. Dated this 20 Bdv df dil.2009 in Toronto.
Ontario. For the Em~lover For the Union For th<~m~l&er
2
Decision
[1] My initial award in this matter was made on January 4, 2007. I have heard submissions
from the parties and have been engaged in mediation over a number of days concerning
the manner of implementation of my award. As a result of the efforts and agreement of
the parties, the agreement attached as Appendix 1 to this Order, reflecting the findings in
my original Award, has been reached and is hereby issued as an order of the Board.
Dated at Toronto this 22nd day of April 2009.
Randi H. Abramsky, Vice-Chair
GSB NOS. 2003-0167,2004-0111,2004-0 1 12.2004-01 13
MEMORANDCJM OF SETTLEMENT
BETWEEN
OPSEU
(Union/Lucan)
-and -
THE CROWN IN RIGHT OF ONTARIO
(Ministry of Government Services)
(Employer)
Whereas the Union filed a Policy Grievance dated March 27,2003 ("the Policy Grievance");
and,
Whereas the Grievor filed three grievances dated March 8,2004 and March 12,2004 (2) ("the
Lucan Grievances")
And whereas the grievances raise issues concerning (1) whether unclassified employees should
have hours paid by the Workplace Safety and Insurance Board ("WSIB") courit towards rnerit
increases and; (2) whether unclassified employees should accrue attendance credits for any
period of time in which the employee was in receipt of WSIB benefits or on an approved WSIB
absence and;
(3) whether unclassified employees who are subsequently appointed to the
classified service should have their continuous service date adjusted to include any period of
time in which the unclassified employee was in receipt of WSIB benefits or on an approved
WSIB absence;
And whereas Vice Chair Abrarnsky of the Grievance Settlement Board ("GSB") issued an
Award on the above noted grievances dated January 4.2007 ("the Award");
And whereas the parties wish to settle on a full and final basis any and all of the remedial issues
of any kind whatsoever that are in way related to the grievances and the Award on the following
terms:
1. The Employer agrees to permit unclassified and/or seasonal employees who are or were,
subsequent to February 1,2005 appointed to the classified service to have their continuous
service date adjusted to include a period of time in which the unclassified and/or seasonal
employee was in receipt of WSIB benefits or on an approved WSIB absence. For greater
clarity, the Employer shall recalculate the seniority of classified employees who:
(a) Have previous unclassified (or seasonal) employment; and
(b) Were in receipt of WSlB benefits or on an approved WSlB absence anytime during their
previous unclassified (or seasonal) period of employment; and
(c) Whose previous unclassitied (or seasonal) service is included in the employees'
seniorityllength of continuous service in accordance with Article 18.1 (b), (c) or (d) of the
OPSEU Collective Agreement.
The parties agree to utilize the Calculation Agreement as attached to this settlement,
Appendix A, for implementation purposes.
2. In the case of employees who were appointed to the classified service on or prior to February
1, 2005, who have filed a grievance with an effective date of February 1, 2005 or earlier
raising in whole or in part the third issue noted in the preamble (seniority for an unclassified
or seasonal employee associated with an approved WSIB absence or for a period of time in
receipt of WSIB benefits or on an approved WSIB absence), the Employer agrees to adjust
their continuous service date to include the period of time on WSIB benefits or on an
approved WSIB absence prior to their appointment to the classified service in the same
manner as it is adjusted in paragraph one.
3. The Employer agrees to compensate any employee for lost vacation benefits, as a result of
not having their continuous service date adjusted in accordance with paragraph 1 and 2.
4. The parties agree that in accordance with the Award, any and all unclassified (or seasonal)
employees are not entitled to earn or accrue attendance credits for any period of time in
which the employee was in receipt of WSIB benefits or on an approved WSIB absence. The
Collective Agreement (January 1,2005 to December 3 1,2008) at Articles 3 1A.8.1 and
32.16.1.1 details the issue of attendance credits for unclassified (or seasonal) employees.
5. The Employer agrees that it shall not seek to recover any money from an unclassified (or
seasonal) employee who already received attendance credits for any period of time in which
the employee was in receipt of WSIB benefits or on an approved WSIB absence.
6. The parties agree that in accordance with the Award, in the event an unclassified (or
seasonal) employee is in receipt of WSIB benefits or on an approved WSIB absence, the
hours paid by WSIB shall not count towards merit increases. The Collective Agreement
(January 1,2005 to December 3 1, 2008) at Article 3 1 A.2.2 and 32.6 details the issue of
merit increases for unclassified (or seasonal) employees.
7. The Employer agrees that it shall not seek to recover any money from an unclassified or
seasonal employee who may have already received merit increases for any period of time in
which the employee was in receipt of WSIB benefits or on an approved WSIB absence.
8. The parties agree that any grievances, even apart from those referred to in this settlement that
solely raise one or more of the issues detailed in the preamble to this settlement are settled on
a full and final basis and are withdrawn upon execution of this settlement. To be clear, the
terms of this settlement will be applied to all similar grievances tiled. All known grievances
are attached hereto as Appendix B.
9. The parties agree that this settlement satisfies all claims, demands, actions, causes of action
of any sort in any way related to the subject matter of the above noted Policy and Lucan
grievances and any grievance (even in addition to those referred to in this settlement) that
solely relates to one or more of the three issues described in the preamble to this settlement
including but not limited to claims, monies and/or termination pay associated with
individuals who are no longer employees of the Employer as of the date of the Award The
parties agree to release the Employer, its agents or representatives from any and all such
claims, demands, actions or complaints or differences in any way related to the subject matter
of the Policy and Lucan grievances and any grievance that solely relates to one or more of
the three issues described in the preamble to this settlement, including but not limited to all
claims under the Human Rights Code, the Employment Standards Act and the Public Sewice
Act and all claims, demands by individuals no longer employed by the Employer as of the
date of this Settlement associated with termination pay and vacation entitlements. To be
clear, with respect to affected grievers, any adjustments for termination pay applicable to any
grievor who has filed a grievance that predates the Award and has left the Ontario Public
Service shall be payable and these individuals shall be compensated for any termination pay
owed.
10. The Union agrees to issue a communication (a) outlining the relevant portions of this
settlement (paragraphs 1-6) to those members who could be potentially affected by these
portions of the Settlement, and (b) requesting that members who believe their seniority is
affected by the Award, to approach their managers and provide supporting documentation
where available. The Employer agrees that upon the completion of steps (a) and (b), if
requested, it will provide an opportunity for the member to review the Employer's relevant
documentation in this context.
1 1. The parties agree that GSB Vice-Chair Abramsky shall remain seized of any dispute between
them regarding the interpretation and implementation of this agreement.
othday of April, 2009 at Toronto, Ontario.
I\->x-v
For the Employer
For the Union For the Employer
Appendix A
Calculations of WSlB Continuous Service
MEMORANDUM OF UNDERSTANDING
BETWEEN:
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
(Union)
And
THE CROWN IN RIGHT OF ONTARIO (MINISTRY OF GOVERNMENT SERVICES)
(Employer)
1. The Parties agree that the period(s) of approved WSlB leave taken by an employee during his or
her unclassified service immediately prior to appointment to the classified service back to the first
break in employment that is greater than 13 weeks, shall be included in the continuous service
date ("CSD") calculation.
2. In determining the CSD credit for the period(s) of approved WSlB leave while employed as an
unclassified employee, the Parties agree to apply the following formula:
a) The total number of weeks of approved WSlB leave shall be determined and
the employer shall count backwards an equal number of weeks immediately
preceding the beginning of the approved WSlB leave. The employer will then
review these work weeks to determine how many full-time work weeks are to
be credited for the period of the approved leave.
b) When calculating the work weeks backwards, if the employee has not been
err~ployed the equal nurr~ber of work weeks as the absence, the employer will
determine the percentage of work weeks where the employee worked full-time
hours during their employment and shall credit the employee with the same
percentage of work weeks during the approved leave.
c) Partial weeks will be included in the calculation such that hours absent on
approved WSlB leave shall be combined with hours worked to determine
whether the work week is a full time week worked for CSD purposes.
3. a) For the purposes of calculation under paragraph 2, where the period immediately
preceding the leave in question includes a period of approved WSlB leave, the weeks included as
full time weeks worked for the calculation shall include the weeks already calculated in
accordance with paragraph 2 for the earlier approved WSlB leave, if any.
For example, where an employee has worked 6 out 10 weeks full time, and is then absent for ten
weeks on an approved WSlB leave, that employee shall be credited with six weeks of continuous
service in respect of the first approved WSlB leave. If the employee, after a return to work, is
subsequently absent on approved WSlB leave for 20 weeks, and the period of time immediately
preceding that subsequent leave which is reviewed to calculate continuous service overlaps the
earlier WSlB leave, the employee would be deemed to have worked 6 full-time weeks during the
period of the earlier 10-week WSIB leave for the purposes of calculating the number of full-time
weeks in the second leave.
-
b) Weeks of full time service attributed to WSlB leave shall be deemed to have occurred'in'
equal distribution across the period of WSlB leave. For example, in the case of a 20 week
approved WSlB leave in which an employee who, pursuant to the calculation in Paragraph 2 is
entitled to a credit of four full time weeks for CS purposes, the four weeks shall be deemed to
have occurred in weeks 5, 10, 15, and 20 of the approved leave. Where the weeks do not fall
evenly, they shall be deemed to occur in the next week. For example, in a case of a 17 week
approved WSlB leave in which an employee who, pursuant to the calculation in Paragraph 2 is
entitled to a credit of three full time weeks for CS purposes, the three weeks would be initially
deemed (by dividing 17 weeks by three weeks) to fall at weeks 5.6, 1 1.2, and 17. However, in
this example, the weeks would be then moved to the next weeks within the,approved leave and
deemed to fall at 6, 12, and 17 respectively.
4. In the case of employees who are absent on WSlB leave for "blocks" of contiguous partial weeks
(more than one partial week in a row during which the employee works some hours but is on
approved WSlB leave for other hours, including, but not limited to, employees on work-hardening
or similar gradual return-to-work protocols), the number of full time weeks worked will be
calculated in the same manner as paragraph 2 c) and, where applicable, 3 above.
5. In the case of partial week absences, the parties agree to amend the records to include any
work week hours approved by WSlB to determine the full-time work weeks pursuant to
paragraph 2 c) above.
6. The Parties agree that no employee shall have their CSD reduced as a result of these
calculations.
7. Should the relevant provisions of the Collective Agreement or other applicable Acts or
Regulations be amended, the Parties shall incorporate the amendments into this memorandum.
8. With the consent of both Parties, this settlement may be amended at any time.
0BdddDated this 2
v f il.2009 in Toronto. Ontario.
For the Em~lover
For the Union For th<~m~l&er