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HomeMy WebLinkAbout2021-1647.Gerrick.2022-11-14 DecisionCrown 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# 2021-1647 UNION# 2021-0290-0020 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Gerrick) Union - and - The Crown in Right of Ontario (Ministry of Children, Community and Social Services) Employer BEFORE Gail Misra Arbitrator FOR THE UNION Gregg Gray Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Karen Martin Treasury Board Secretariat Employee Relations Advisor HEARING December 13, 2021; March 7 and November 1, 2022 - 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 the Solicitor General as well as the Ministry of Children, Community and Social Services restructuring initiatives around the Province. Through the MERC (Ministry Employee 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. - 3 - [7] Jennifer Gerrick is a Fixed Term (“FXT”) Youth Service Officer (“YSO”) who began working at the Roy McMurtry Youth Centre in 2014. On August 4, 2021 Ms. Gerrick filed a grievance claiming breaches of Article 2 and Appendix COR19 of the collective agreement. By way of remedy, she seeks full redress and to be made whole. [8] In particular, the grievor claims that the Employer has improperly calculated her hours worked as it has not given her credit for sick time when she provided a doctor’s note or was off work in receipt of WSIB benefits. As well, Ms. Gerrick claims that the Employer has failed to post accumulated FXT Youth Services Officers’ hours quarterly, in violation of the terms of the collective agreement. [9] On or about September 21, 2020 the grievor first filed her claim of discrepancies in her hours after the Employer had posted FXT YSO hours that day. On the next posting of hours in June 2021, Ms. Gerrick again raised her concern about discrepancies in her hours. As she had filed her 2020 discrepancy complaint about hours that were purportedly from 2017, 2018 and 2019, long after the dates on which she should have advised the Employer of any hours discrepancies, her complaints were denied. However, the grievor states that she is aware of another YSO who had also filed her discrepancy claim late but whose hours were reviewed, and that individual was credited for unpaid sick time that was supported by medical documentation. [10] It appears that the grievor is seeking to have her total hours worked rectified for periods she was off sick or in receipt of Workers’ Compensation benefits in 2017, 2018 and 2019. She claims that she was off work injured for some of the times when the Employer claims that she was required to report any discrepancies in her total hours. She also claims that she is a very busy person with multiple responsibilities and is not able to keep track of her hours. [11] Based on a review of the documents provided by the Employer, it appears that in 2017 the FXT YSO total hours were posted on March 21 and June 21, 2017. On the March 21, 2017 posting the email advising employees of the posting of hours indicated “if there is a discrepancy, please let me know”. On the June 21st posting - 4 - the message to employees was more specific and stated: “Should I not receive notification of any discrepancies by July 7th, your posted hours will be deemed to be accurate. As a result, the hours will not be reviewed at a later date.” The grievor was not off work on sick leave nor off work in receipt of WSIB when either of those postings went up, or during the periods of time thereafter when she could have complained about the calculation of her hours. She did not file a claim of a discrepancy. [12] In 2018 there were three postings of total hours for FXT YSOs: on February 28, May 28 and October 17, 2018. Again, on each occasion the posting indicated that there was a date by which any employee who claimed that there was a discrepancy in their total hours was invited to bring that to the Employer’s attention, along with the warning that if no issue was raised, the posted hours would be deemed accurate and would not be reviewed at a later date. The grievor was not off work on sick leave nor off work on WSIB during any of those three periods of time. She did not notify the Employer of a discrepancy. Ms. Gerrick was off work as a result of a workplace injury from July 16 to August 6, 2018, and received partial loss of earnings from August 6 to 19, 2018. However those periods do not coincide with any dates when the Employer had posted the total hours for FXT YSOs. [13] In 2019 there were two postings of total hours for FXT YSOs: on January 25 and September 18, 2019, both with the same type of warning as had been on the June 2017 posting of hours. Ms. Gerrick had one discretionary day off on February 4, 2019, which fell within the time when employees could file claims of discrepancy, but was not otherwise absent due to illness or due to a compensable workplace injury around that time. Since the deadline for indicating discrepancies for that posting was anytime between January 25th and February 13th, the grievor had ample opportunity to raise her concerns. [14] For the September 18, 2019 posting of total hours, the grievor was off work when the posting first went up as she had a WSIB incident on August 28, 2019. However, she returned to full duties at work on September 20, 2019. Since the deadline by - 5 - which to raise discrepancies regarding hours was October 2, 2019, the grievor had sufficient time to file a complaint upon her return to work. [15] Finally, on January 25, 2020 there was a posting for total hours worked up to the end of December 2019. The period in which to complain was up to February 13, 2020. While the grievor was off work for a discretionary day off on January 25th when the posting went up, she was not off work due to sickness or due to a workplace injury after that, so she would have had sufficient time to raise any concern regarding a discrepancy in her total hours. In every instance of a posting, the Employer warned employees that they needed to raise any concerns about their hours by a set deadline, or be deemed to have accepted the hours. They were also told that the total hours would not be reviewed at a later date. [16] As the grievor asserted that another YSO had been treated differently than she had, the Employer has provided evidence regarding that instance, and conceded that what occurred in that instance should not have happened. The Employer had done a March 2021 posting of total hours for FXT YSOs. In June 2021, about two months after the deadline for raising discrepancies, the YSO, TD, inquired about her hours, and provided a list of dates during three weeks in July 2020 when she had been off work for surgery, and had provided medical documentation to her staff services manager. According to the Employer, while TD had filed her inquiry about her hours late, since the dates were not very far in the past, the Employer had been able to review them easily and it credited TD for the unpaid sick time that had been supported by medical documentation. The Employer acknowledges that this should not have occurred as the rules are clear. [17] Having considered the submissions of the parties and the evidence before me, I find that the grievor simply waited too long to raise her concerns about the alleged discrepancies in her total hours calculation. Her issues are with regards to hours in 2017, 2018 and 2019. She did not raise these concerns until late 2020, and did not file a grievance until August 2021. In my view the rules are clear, they have been brought to the employees’ attention at each posting, and the consequences of non- compliance have also been outlined. As such, and while there may have been one - 6 - instance in which the Employer mistakenly addressed a YSO’s complaint after the deadline for raising discrepancies, that is not a reason to abandon the rules and consequences entirely. [18] The issue in this grievance is not really about whether the Employer has been posting total FXT hours quarterly. There is no question that pursuant to Appendix COR 8 of the collective agreement it is obligated to do so. However, it appears that unlike the situation in Ontario Public Service Employees Union (Mauviel) v Ontario (Solicitor General), 2020 CanLII 74269 (ON GSB), the Roy McMurtry Youth Centre had been posting total hours at least twice or three times a year. [19] It is worth noting what Appendix COR8 says in regards to the quarterly posting of FXT total hours. It states: Fixed Term employees will have their hours calculated quarterly. These hours will be given to fixed-term employees with a dispute form to be checked and given back to the Employer for final verification. This will be done in order to expedite any further rollovers. [20] One of the purposes of the parties’ agreement is to try to ensure that any disputes regarding an FXT’s total hours are resolved quickly, and regularly, so that should a rollover opportunity arise, it can be effectively managed by ensuring that those with the most total hours may be awarded permanent positions. There are therefore obligations on both the institution (to post the total hours quarterly), and on FXT employees (to raise any issues about their hours quickly). The issue this grievance raises is that despite those postings, the grievor did not avail herself of the opportunity to claim discrepancies in a timely manner when it would have been possible to easily check her records, and rectify any errors should they have been found. [21] The Union argues that there is no specific deadline in Appendix COR8 for the filing of claims about discrepancies. In my view this is an argument without merit. The parties have, through the language quoted above, shown their intention that the issue of hours calculations should be resolved quickly. In addition, Article 22.1 of the collective agreement, regarding the Grievance Procedure, specifically indicates - 7 - that it is the intent of the collective agreement to adjust as quickly as possible any complaints or differences between the parties. Furthermore, in Art. 22.2 the parties have agreed that a grievance must be filed within thirty days “after the circumstances giving rise to the complaint have occurred or have come or ought reasonably to have come to the attention of the employee” (emphasis added). [22] In this case the grievor’s concern about her hours ought reasonably to have come to her attention whenever the Employer posted the total FXT YSO hours, and when she was advised to check her hours, bring any concerns to the attention of the Employer, or be deemed to have accepted them. [23] The Union further argues on behalf of the grievor that she was not aware until recently that sick time that was medically supported by documentation and WSIB time could be counted towards her total hours for the purpose of rollovers. It is unfortunate that the grievor was not aware of this, but that is not a reason that I can accept for her having sat on her rights for more than three years. Employees have access to their collective agreement, and to the Union’s representatives in the workplace should they have any questions. Ignorance of their rights is not an acceptable reason for inordinate delay in filing a grievance. In any event, this reason is at odds with the grievor’s other reasons given for not having raised her concerns earlier. As I have already addressed above, while the grievor claimed she had been too busy to count her hours, and as well that she had been away sick or off work due to a workplace accident at the times that the Employer had posted the FXT hours totals, the evidence demonstrated that the latter were inaccurate claims. [24] Having considered the submissions of the parties, and the documents submitted, for all of the reasons outlined above, this grievance is hereby dismissed. Dated at Toronto, Ontario this 14th day of November 2022. “Gail Misra” _________________ Gail Misra, Arbitrator