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HomeMy WebLinkAbout2007-2837.Carruthers.09-11-16 Decision Commission de Crown Employees Grievance Settlement règlement des griefs Board des employés de la Couronne Suite 600 Bureau 600 180 Dundas St. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tél. : (416) 326-1388 Fax (416) 326-1396 Téléc. : (416) 326-1396 GSB#2007-2837 UNION#2007-0368-0152 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 (Carruthers) - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFOREFelicity D. Briggs Vice-Chair FOR THE UNIONAnastasios Zafiriadis Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYERBrian Scott Ministry of Community Safety and Correctional Services Staff Relations Officer HEARING October 22, 2009. - 2 - Decision [1]The Employer and the Union at the Central East Correctional Centre agreed to participate in the Expedited Mediation-Arbitration process in accordance with the negotiated Protocol. Most of the grievances were settled through that process. However, a few remained unresolved and therefore require a decision from this Board. The Protocol provides that decisions will be issued within a relatively short period of time after the actual mediation sessions and will be without reasons. Further, the decision is to be without prejudice and precedent. [2]David Carruthers is a classified Correctional Officer who filed a grievance alleging that the Employer violated the HPRO protocol when it failed to offer him an overtime shift on October 4, 2007. He has made himself available for a 1500hrs to 2300hrs shift on October 4, 2007. [3]During the evening of October 3, 2007, it became necessary to fill the evening shift for October 4, 2007. The Operational Manager telephoned a Correctional Officer and offered an overtime shift which was accepted. The following morning that CO reconsidered the overtime opportunity and cancelled for personal reasons. The Employer then filled the shift with an unclassified CO who was paid at straight time rate. [4]Mr. Carruthers takes the position that on the evening of October 3, 2007, the HPRO was violated because he was ahead of the CO who was called and booked to work overtime. Further, the fact that the incorrectly booked CO never worked the shift at overtime rates does not mitigate the violation of the protocol and the appropriate remedy. [5]The Union further argued that the Employer has made the ?decision to hire overtime? as considered in the HPRO and therefore the established process must be followed and it was not. [6]The Employer concedes that the shift was incorrectly booked in the first instance. However, it was given an opportunity to amend its error with the cancellation of the - 3 - scheduled overtime shift and it did. Accordingly, no remedy should be awarded. The Employer asserted that it was entitled to correct its error without penalty. [7]The Employer contended that, according to HPRO, overtime ?will only be offered once the non-overtime classified and non-overtime unclassified resources have been exhausted.? That is precisely what happened in this instance on October 4, 2007. [8] I find this an interesting question regarding the interpretation of the HPRO. It was well argued by both the Union and the Employer. Both views are defensible and understandable. [9]The Employer properly conceded the fact that on the evening of October 3, 2007, the protocol was breached. Indeed, according to the facts, there were two other Correctional Officers who were ahead of the grievor on the list to be called and offered an overtime opportunity for that shift. There is no doubt that if the shift had in fact been worked by the classified Correctional Officer at overtime rates a remedy would be ordered for Mr. Carruthers. [10]Normally when a remedy is ordered for violations of HPRO, it is done because the wrong person was scheduled to and did in fact work a shift for which they received a premium. The person who should have been scheduled is redressed for the lost opportunity. In this instance, no one worked at overtime rates. While that fact might be as the result of serendipity, it is a factor to take into account. [11]After consideration of the arguments and terms of HPRO, I am of the view that the grievance must fail. I accept that on the evening of October 3, 3007, the Employer ?made a decision to hire overtime?. However, when the opportunity presented itself for the Employer to re-consider its scheduling of that shift, it elected to schedule an unclassified employee to do the work at straight time, which it was entitled to do in accordance with HPRO. - 4 - [12]In other words, the Employer made a mistake and then, when given an opportunity, corrected its error and in doing so no employee was improperly paid overtime at the expense of the grievor. [13]The grievance is denied. th Dated at Toronto this 16 day of November 2009. Felicity D. Briggs, Vice-Chair