The URL can be used to link to this page

Home My WebLink About2020-2457.Tuck.21-10-06 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# 2020-2457 UNION# 2020-0128-0005 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 Ministry of the Solicitor General Manager, Employee Transition Unit HEARING July 27, 2021 and October 4, 2021 -2- 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 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 July 28, 2020 claiming that the Employer had violated Articles 2, 3 and 9 of the collective agreement, and also breached provisions of the Employment Standards Act. By way of remedy, among other things, the Grievor seeks to have her average weekly hours worked before her leave of absence used to calculate her weekly hours during the leave of absence, and to have those hours added to her accumulated FXT hours for the purposes of seniority and merit increases. -3- [8] Early in the COVID-19 pandemic, in and around April 9, 2020, the grievor advised the Employer that she could not attend at work because she did not have childcare for her young child. Her spouse is also an essential service worker. While the Province had indicated it would try to provide essential service workers with childcare spaces, Ms. Tuck advised that she was unable to find a space as she apparently lives in a rural area where there was limited availability of child care for essential service workers. [9] On April 9, 2020 the grievor requested the use of paid Special and Compassionate leave under Art. 49 of the collective agreement for April 14 and 17, 2020, as she had not been able to make suitable arrangements for her child’s care. That same day she also requested two more such paid days for April 21 and 26, 2020. Ultimately, the Employer granted Ms. Tuck all four days as Special and Compassionate leave, even though the collective agreement only envisages that a Fixed Term employee may be granted up to three days of such paid leave in a year. [10] On April 9, 2020 the grievor also requested a leave of absence without pay from April 27 to May 24, 2020, due to the lack of childcare issue, and so that she could find a viable daycare option. On April 17, 2020 the Employer granted the grievor’s leave of absence without pay request. [11] In this grievance Ms. Tuck is claiming that the Employer should have credited her with hours for the entire period of her approved leave of absence, and as well appears to be including the two weeks in April when she was granted the four compassionate leave days that she had requested. As such, she asserts that between April 13th and the date of her return to work, her hours should have been calculated based on her 13 week hours worked average prior to April 12, 2020. [12] 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 -4- 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. (Emphasis added) [13] As outlined in the Briggs decision, an unclassified employee, like the grievor, does not receive any credit for the purposes of calculating straight-time hours for the time they may be on an approved leave of absence without pay (para. (D) above). While I am sympathetic to the situation the grievor found herself in, simply because she had parental responsibilities does not entitle her to receive credit for the time she was off work on an approved leave of absence without pay. Based on the evidence before me it is clear that the grievor did receive credit for all hours for which she was paid for the four days of Special and Compassionate leave that she was granted, and the calculation of her accumulated hours worked is correct. [14] Having considered the facts and submissions of the parties, and for the reasons outlined above, I cannot find any breach of the collective agreement or any statute, and this grievance is therefore dismissed. Dated at Toronto, Ontario this 6th day of October, 2021. “Gail Misra” _________________________ Gail Misra, Arbitrator