HomeMy WebLinkAbout2010-0753.Miceli et al.12-01-09 Decision
Crown Employees
rieva
nce Settlement
oard
1Z8
l. (416) 326-1388
x (416) 326-1396
t des griefs
es employés de la
t
Z8
l. : (416) 326-1388
léc. : (416) 326-1396
UNION#2010-0542-0013, 2010-0542-0014, 2010-0542-0015
IN THE MATTER ARBITRATION
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
THE GRIEVANCE SETTLEMENT BOARD
ETWEEN
G
B
Suite 600
180 Dundas St. West
Toronto, Ontario M5G
Te
Fa
Commission de
règlemen
d
Couronne
Bureau 600
180, rue Dundas Oues
Toronto (Ontario) M5G 1
Té
Té
GSB#2010-0753, 2010-0754, 2010-0755
OF AN
Under
Before
B
Ontario Publiloyees Union
(Ml) Union
(Ministry of Governmen Employer
c Service Emp
iceli et a
- and -
The Crown in Right of Ontario
t Services)
BEFORE Nimal Dissanayake Vice-Chair
FOR THE UNION
lmes LLP
FOR THE EMPLOYER
Christopher Bryden
Ryder Wright Blair & Ho
Barristers and Solicitors
Services
ractice Group
Robert Fredericks
Ministry of Government
Labour P
Counsel
HEARING October 17, 2011.
CONFERENCE CALL November 24, 2011.
ONSSUBMISSI December 28, 2011.
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Decision
[1] This decision is issued pursuant to article 22.16 of the collective agreement.
[2] Individual grievances filed by the grievors Frank Miceli, Shahzad Nazeer and
Konstantines Pirovolakis came before the Board on October 17, 2011. Each of them
had grieved that the employer had failed to pay call back pay as required by article
UN 9.1. of the collective agreement.
[3] Following opening statements made at the hearing on October 17, 2011 and a further
teleconference discussion with the vice-chair on November 24, 2011, the parties agreed
that the Board should rule pursuant to article 22.16 on the application of article UN 9.1
to a certain set of assumed facts, and remain seized with the grievances. The parties
were hopeful that it would enable a resolution of the grievances.
[4] Further to the foregoing agreement, a statement of “assumed/stipulated facts regarding
preliminary interpretative issue” was subsequently filed. Based on those facts the parties
submitted written submissions and case law in accordance with agreed upon timelines.
[5] For clarity, the statement concluded with para.21, which provides “The parties are
agreed that the foregoing stipulated/assumed facts are without prejudice to any evidence
either party may lead, should the matter proceed further than this interpretative stage”.
[6] From the statement presented, the Board understands the key facts to be as follows:
(a) The grievors do not have specific start/end times. They have the flexibility, on any
given work day, of starting work anytime between 7:00 and 10:00 a.m. and to work 7:25
hours from the time of commencement, with an intervening lunch break. However, they
are required to start and end shifts within the three hour windows designated by the
employer, and to work 7:25 hours each day.
(b) Any deviation from the requirement to start and end work within the designated
window of time is allowed only with the permission of management on a case by case
basis. The grievors may occasionally work longer than 7:25 hours if they are in the
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process of incident resolution or change implementation. They are paid overtime for time
worked outside of their regular working hours.
[7] The issue the parties put to the Board for determination is whether in the foregoing
circumstances the grievors could be said to have a “next scheduled shift” within the
meaning of article UN 9.1. In interpreting and applying the article to the assumed facts,
it is appropriate to adopt a purposive approach. The purpose of call-back pay is two-
fold. First, a call-back pay provision is designed to compensate employees for the
inconvenience and disruption of their personal lives caused as a result of being called in
to work. Second, call-back pay provisions are intended to discourage employers from
requiring employees to report to work outside of their regularly scheduled shifts except
where it is really necessary to do so.
[8] The Board has reviewed the submissions of the parties and the authorities relied upon.
Having regard to the purpose of call-back provisions and the assumed facts presented by
the parties, the Board would conclude that the grievors do have a next scheduled shift
within the meaning of article UN 9.1.
[9] As requested, the matter is remitted back to the parties. The Board remains seized with
the grievances.
Dated at Toronto this 9th day of January 2012.
Nimal Dissanayake, Vice-Chair