HomeMy WebLinkAbout2021-1292.Kerr.22-05-26 Decision
Crown Employees Grievance Settlement
Board
Suite 600
180 Dundas St. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Commission de
règlement des griefs
des employés de la
Couronne
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
GSB# 2021-1292
UNION# 2021-0719-0012
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Kerr) Union
- and -
The Crown in Right of Ontario
(Ministry of the Solicitor General) Employer
BEFORE Brian P. Sheehan Arbitrator
FOR THE UNION Dan Sidsworth
Ontario Public Service Employees Union
Grievance Officer
FOR THE EMPLOYER Nishal Nair
Treasury Board Secretariat
Employee Relations Advisor
HEARING DATE May 18, 2022
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Decision
[1] The Employer and the Union at the Kenora Jail agreed to participate in the
Expedited Mediation/Arbitration process in accordance with the negotiated Protocol. It
is not necessary to reproduce the entire Protocol. Suffice to say, that the parties have
agreed to a True Mediation/Arbitration process wherein each party provides the
Arbitrator with their submissions setting out the facts and the authorities they
respectively will rely upon. This decision is issued in accordance with the Protocol and
with Article 22.16 of the collective agreement, and, as such, it is without prejudice or
precedent.
[2] The grievor is employed as a Correctional Officer at the Kenora Jail.
[3] On June 28, 2021, the grievor noticed damage to her car after the end of her
scheduled shift. Apparently, at the time, there was ongoing construction at the Jail in
proximity to where employees parked their cars.
[4] The grievor immediately reported the damage to the Sergeant on Duty.
[5] On June 29, 2021, the grievor spoke to Staff Sergeant Herbacz by phone. Staff
Sergeant Herbacz advised the grievor that she should complete an Occurrence Report
with respect to the damage to her car. The grievor claims that she advised Staff
Sergeant Herbacz that she would come into the institution shortly to complete the
Occurrence Report since she was scheduled to be on a hospital escort for her night
shift that evening. The grievor asserted that Sergeant Herbacz agreed with that course
of action.
[6] Shortly thereafter, the grievor appeared at the Jail and had a discussion with
Sergeant Heggie, who indicated that Staff Sergeant Herbacz was unavailable. The
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grievor advised Sergeant Heggie that she would complete her Occurrence Report as
she had discussed with Staff Sergeant Herbacz.
[7] Upon completing her Occurrence Report, the grievor submitted a claim for Call
Back Pay.
[8] The Call Back Pay provision of the collective agreement reads as follows:
An employee who leaves his or her place of work and is subsequently
called back to work prior to the starting time of his or her next scheduled
shift shall be paid a minimum of four (4) hours pay at one and one-half (1
½ ) times his or her basic hourly rate.
[9] Even if the version of the events set out by the grievor is entirely accepted, there
is no basis to suggest she was entitled to Call Back Pay. It is arguable that completing
an Occurrence Report with respect to damage done to an employee’s own car
constitutes "work" performed on behalf of the Employer. More importantly, the facts fail
to establish that the Employer insisted or directed the grievor to return to the Jail on
June 29, 2021 in order to complete the Occurrence Report.
[10] Accordingly, the grievance is, hereby, dismissed.
Dated at Toronto, Ontario this 26th day of May 2022.
“Brian P. Sheehan”
_______________________
Brian P. Sheehan, Arbitrator