HomeMy WebLinkAbout2023-01367.Owens.24-04-03 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# 2023-01367
UNION# 2023-0310-0071
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Owens) Union
- and -
The Crown in Right of Ontario
(Ministry of the Attorney General) Employer
BEFORE Marilyn A. Nairn Arbitrator
FOR THE UNION James Sommerville
Ontario Public Service Employees Union
Grievance Officer
FOR THE EMPLOYER Jordan Brezer
Treasury Board Secretariat
Employee Relations & Negotiations
Employee Relations Advisor
HEARING April 2, 2024
-2 -
Decision
[1] When this hearing convened, the Grievor was not present due to illness, but she
advised the Union that she was content that the hearing proceed in her absence.
The facts were not in dispute.
[2] This grievance is brought pursuant to Article 22.16 of the collective agreement
whereby an expedited med/arb process is anticipated, and only brief reasons need
be provided. The grievance claims payment of a shift premium for hours worked
between 5:00 p.m. and 7:00 a.m. pursuant to Article UN 6.1 of the collective
agreement.
[3] The Grievor works on a part-time, flexible basis as a Court Clerk and Registrar in
the Newmarket courts. Her usual hours of work correspond to those of the court. A
review of her Court Time Reporting System (“CTRS”) reports for the 12-month
period preceding the filing of the grievance confirm that the Grievor normally works
between the hours of 8:00 a.m. and 5:00 p.m. Being on a flexible schedule means
that the Grievor’s start time can vary between 8:00 a.m. and 9:00 a.m. Her days
generally end between 4:00-5:00 p.m., although she can, and has remained beyond
5:00 p.m. should it be required. The Employer acknowledges that the Grievor is
entitled to be paid an overtime premium for hours worked in excess of 36.25 hours
per week.
[4] The grievance seeks a remedy back to January 2011. Article 22.2 of the collective
agreement requires that a grievance be filed within 30 days of the circumstances
giving rise to the complaint. While a claim for a shift premium may be continuing,
arising each time the premium is claimed, any remedy for a failure to properly pay a
shift premium would reflect only those occasions within the 30 days prior to the filing
of the grievance. The grievance process is intended to ensure that concerns are
brought to the Employer’s attention at the first opportunity, and any remedy is
thereby limited.
[5] In any event, Article UN 6.1 provides a shift premium for hours worked between 5:00
p.m. and 7:00 a.m. Those hours of work fall within what are often referred to as an
evening and/or night shift. A shift premium recognizes the disruption that can be
caused to family and lifestyle when regular hours of work fall outside a more usual
‘day’ shift.
[6] Article UN 6.1 must be read in conjunction with Article UN 6.2 of the collective
agreement, which is clear that the shift premium does not apply when the
employee’s “hours of work normally fall within 7:00 a.m. and 5:00 p.m.” (emphasis
added).
[7] The Grievor’s normal hours of work fall within that range typically considered as a
day shift. To the extent that she may sometimes be required to work beyond 5:00
p.m., she may be entitled to overtime pay should her weekly hours of work exceed
36.25 hours. She is not, however, entitled to a shift premium for time worked beyond
-3 -
5:00p.m., as her hours of work normally fall within the hours of 7:00a.m. and 5:00
p.m.
[8] This grievance is therefore dismissed.
Dated at Toronto, Ontario this 3rd day of April 2024.
“Marilyn A. Nairn”
Marilyn A. Nairn, Arbitrator