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Home My WebLink About2017-1792.Manna et al.21-03-10 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# 2017-1792 UNION# 2017-5112-0229 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Manna et al) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Dale Hewat Arbitrator FOR THE UNION Tim Hannigan Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Thomas Ayers Treasury Board Secretariat Legal Services Branch Counsel HEARING March 4, 2021 -2- DECISION [1] This Grievance came before me under s.22.16 of the Collective Agreement. The Grievance alleges that the Employer violated the Collective Agreement and other applicable legislation by requiring Registered Nurses, at the Toronto South Detention Centre and the Toronto Intermittent Centre, to be available to respond to emergencies at all times including while on their unpaid breaks. The Grievors allege that this requirement resulted in them not being compensated for time worked during unpaid breaks and often resulted in their shifts being extended by 30 minutes. The parties settled this Grievance on July 26, 2018 by creating a new scheduling practice using a Compressed Work Week Arrangement. However, the issue of what damages, if any, may be owing for retroactive compensation was not settled and is now before me in this arbitration. [2] On January 24, 2019 I issued a Decision (OPSEU (Manna et al) vs. Ministry of Community Safety and Correctional Services, GSB No.2017-1792) ordering the Union to provide various particulars to the Employer by May 17, 2019 including “A list of all shifts between July 25, 2017 and July 26, 2018 listed by date where the Grievors were required to work during their unpaid breaks and were not compensated.” On July 26, 2019 I met with the parties to discuss preliminary issues arising out of my January 24, 2019 Decision. The Union shared its particulars that were provided to the Employer on May 17, 2019 which did not include the list that I had ordered, other than a list of dates and shifts provided by one Grievor. The Union explained that the Grievors had reviewed their records and determined that they had not recorded specific dates and times of breaks which they had missed. The Union advised that the Grievors could provide the information required by my January 24, 2019 Decision if they were given access to their sign- in sheets which are in the possession of the Employer. As a result, the Union sought an order for production of time sheets/sign-in sheets for the Grievors between the period of July 25, 2017 to July 26, 2018. [3] On August 1, 2019, I issued a further Decision in which I ordered that the Employer provide the Union with a copy of sign-in sheets for the period between July 25, 2017 to July 26, 2018. On September 20, 2019, the Employer provided the Union with a copy of the sign-in sheets, satisfying the August 1, 2019 disclosure order. Following the disclosure, Mr. Hannigan, Counsel for the Union, advised the Employer that the Union was reviewing the sign-in sheets and that he would be in touch once the Union had a better sense of timing required to review them. On September 21, 2020, Mr. Ayers, Counsel for the Employer, wrote an email to Mr. Hannigan, asking for the Union to provide particulars of its case for retroactive damages based on the disclosure provided by the Employer. Mr. Hannigan responded to Mr. Ayers on October 20, 2020 by email in which he advised that the Grievors are asserting that they have incurred a financial loss for every single shift where they were scheduled to work 12.5 hours and that he did not have more specific particulars to provide. -3- [4] A hearing was held on March 4, 2021 to deal with the Union’s claim for compensatory damages. The Employer brought a motion to have this matter dismissed on the basis that the Union failed to provide sufficient particulars to support its claim for retroactive compensation for the time period between July 25, 2017 to July 26, 2018. In support of its position, the Employer stated that despite having disclosed the sign-in sheets in September 2019 and the Union taking over one year to review the sign-in sheets, the Union was still not able to provide particulars identifying which shifts were actually worked in order to demonstrate a compensable loss. The Union acknowledged that the Grievors were not able to identify any specific shifts from the Employer’s disclosure of the sign-in sheets but that they were still claiming that they should be paid for every 12.5 hour shift they were scheduled to work for the 1-year period spanning July 2017 to July 2018. [5] After considering the parties positions outlined at the hearing, I agree with the Employer that this Grievance should be dismissed for failure to provide sufficient particulars. The GSB jurisprudence is clear that the failure to provide particulars, particularly after an Order of the Board requiring them, may lead to the dismissal of the grievance: OPSEU(Morsi) and Ministry of Finance, GSB No. 2006-2863 2008 (Devins), OPSEU (Klonowski et al) and Ministry of Finance (2002), GSB No. 1799/99 (Fisher); OPSEU (Giannou) and Management Board Secretariat (1997), GSB No. 570/96 (Leighton); Gardiner and Ministry of Community Safety and Correctional Services (2004), PSGB No. P-2003-0951 (Carter); OPSEU (Ross) and Ministry of Solicitor General and Correctional Services (2003), GSB No. 2690/96 (Herlich) and OPSEU (Union Grievance) and Ministry of Community Safety and Correctional Services (2004), GSB No. 2002- 2260 (Mikus). [6] The specific order for particulars issued in my Decision of January 24, 2019 listed the following information that was required for the Union to provide before the case could be heard on the issue of retroactive compensatory damages: At paragraph 5 of that Decision, I ordered that: “the Union is required to provide the following particulars regarding the 2017 Grievance to the Employer no later than May 17, 2019: a) A list of all shifts between July 25, 2017 or 30 days before the filing of the 2017 Grievance and July 26, 2018 (the Settlement date) listed by date where Grievors were required to work during their unpaid breaks and were not compensated. b) Evidence of the Grievors bringing the issue of working during an unpaid break during the time period listed in (a) to management’s attention. c) Evidence during the time period listed in (a) of denials of compensation by management where the grievors were required to work during an unpaid break.” [7] The Union did provide some general particulars that the issue of working during unpaid breaks was brought to management’s attention. However, the Union was -4- not able, after reviewing the Employer’s ordered disclosure documents, to provide specific information about the particulars that were ordered to be provided as noted above in paragraph 6. Without any details about specific dates where Grievors were required to work during their unpaid breaks without compensation, or where they requested compensation but were denied it, or where specific dates were brought to management’s attention, there are insufficient particulars to determine what or when any compensatory damages might have been incurred. As a result, I am allowing the Employer’s motion to dismiss this Grievance for failure to provide sufficient particulars. Dated at Toronto, Ontario this 10th day of March, 2021. “Dale Hewat” ______________________ Dale Hewat, Arbitrator