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HomeMy WebLinkAbout2021-2973.McGann et al.23.09.06 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# 2021-2973 UNION# 2021-0526-0027 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (McGann) Union - and - The Crown in Right of Ontario (The Ministry of the Attorney General) Employer BEFORE Ian Anderson Arbitrator FOR THE UNION Erin Buchner Morrison Watts Counsel FOR THE EMPLOYER Katherine Ayers Treasury Board Secretariat Legal Services Branch Counsel HEARING August 10, 2023 -2 - Decision [1] This is a referral of a grievance under Article 22.16.1 of the Central Collective Agreement between the parties. Article 22.16.1 provides for the resolution of grievances “in an expeditious and informal manner”. The mediator/arbitrator is to assist the parties in attempting to settle the matter. Should efforts be unsuccessful, the mediator/arbitrator is to determine the grievance by arbitration. In doing so, Article 22.16.1 provides the mediator/arbitrator may “limit the nature and extent of the evidence and may impose such conditions as he or she considers appropriate”. Decisions reached are without precedent unless the parties agree otherwise. Decisions are to be succinct and to be issued within five days of the completion of the proceedings unless the parties agree otherwise. Attempts to resolve these matters through mediation were unsuccessful. The parties agreed to waive the time 5 day time limit. [2] The Union provided particulars with respect to this grievance, as directed. The particulars summarize the central allegation contained in the grievance as follows: From about March 2020 to up to and including July 2020, the Employer breached the Collective Agreement by failing to provide the grievers [sic] identified in the group grievance with compensation in accordance with their normal hours of work (36 1/4) hours per week and seven and one quarter (7 1/4) hours per day Monday to Friday inclusive. More specifically, the Employer breached the Collective Agreement by capping the grievers [sic] at 5.75 hours per day Monday to Friday inclusive, when the grievers [sic] worked considerably more hours prior to the pandemic. In doing so, the Employer exercised its management rights in a manner that was arbitrary, discriminatory and/or in bad faith. [3] The Employer brings a motion to have the grievance dismissed on the basis that the particulars provided in support of this allegation do not make out a prima facie case. [4] The particulars indicate: The grievers [sic] identified in the group grievance are Flexible Part Time (FPT) courtroom Registrars / Clerks. FPT employees are employees that are appointed to the Regular Service who are assigned to one of two minimum annual hours of work categories, either a minimum of 1,096 hours per annum (Category 1), or a minimum of 1,500 hours per annum (Category 2). The grievers [sic] identified by the group grievance are all Category 2 employees who are assigned to a minimum of 1,500 hours per annum. [5] The particulars allege that prior to March of 2020 many of the Grievors regularly worked in excess of the minimum annual number of hours that the Collective Agreement required the employer to guarantee each employee. As of March, 2020, due to the pandemic, the Grievors were only compensated for 5.75 hours per day, Monday to Friday inclusive. For the most part, the Grievors were -3 - regularly scheduled to work at the office for one (1) week and then sent home without work for the following week, or weeks, after which time they would repeat that rotation. Whether they were working or not, they received compensation for 5.75 hours per day or 57.5 hours bi-weekly. This compensation / schedule was in place from about March 16, 2020, up to and including July 31, 2020. Thereafter, the Grievors returned to their normal compensation / schedule. [6] The core allegation is that the Grievors were not permitted to work more than 5.75 hours per day in the office and were denied the opportunity to work from home, even if there was more work to be performed on a given day. The particulars continue: Despite the arrangement that the Employer implemented for these grievors, (employees in the FPT, category 2 classification), it is understood that the employees who were in the Fix-Term category had the opportunity to work in excess of 5.75 hours per day. For example, Louise Patterson, a Fix-Term employee, was compensated for more than 6 hours daily. Fix-Term employees were also permitted to work from home, providing them with the opportunity to work more than 6 hours daily. [7] The particulars assert: In denying these grievors work opportunities and failing to compensate them for more than 5.75 hours per day, the employer breached the Collective Agreement, including Articles: 2, Appendix 32; and UN 2.1 and 2.5. [8] I agree with the Employer that the particulars fail to establish a prima facie case. As FPT, Category 2, employees, the Grievors were guaranteed a minimum of 1,500 hours work per year. The compensation for 5.75 hours/day which they received during the disputed period, even for days on which they were not required to work, fulfilled this obligation. While the Employer may offer more work, it is not required to do so. The fact there was more work available, even if true, does not give rise to any right by the Grievors to that work. The fact that many of the Grievors were regularly assigned more work prior to the pandemic does not change that result and give rise to an ongoing right to more work during the pandemic. The mere fact that the Employer treated a different category of employees differently, even if true, is not sufficient to establish any prohibited form of discrimination. [9] As the Employer’s submissions amply demonstrate, this is well ploughed ground. There are many past decisions between the parties on this issue. In several of them, Dag McGann, one of the Grievors in this group, had his hand on the plough. The past decisions consistently held these employees do not have any right to hours in excess of the average of 5.75/day. While Mr. McGann seems unable to accept this answer, it remains the same. -4 - [10] The grievance is dismissed for failure to plead a prima facie case of a breach of the collective agreement. Dated at Toronto, Ontario this 6th day of September 2023. “Ian Anderson” Ian Anderson, Arbitrator