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HomeMy WebLinkAbout1981-0465.Boucher.83-04-21465/81.& 76/82 SUPPLEMEPITARY AWARD Between: IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Before: For the Griever: For the Employer: Hearings: OPSEU (James N. Boucher) Griever - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer R. L. Verity, Q.C. Vice Chairman R. Cochrane Member K. W. Preston Member C. G. Paliare Counsel Cameron, Brewin & Scott Barristers & Solicitors J. F. Benedict Manager, Staff Relations Personnel Branch Ministry of Correctional Services March 19, 1982 May 18, 1982 June 1, 1982 June 28, 1982 March 15, 1983 SUPPLEMENTARY AWARD In an Award dated July 26th, 1982, this Panel of the Board reinstated the Grievor to the position of .Correctional Officer 2 at the Maplehurst Correctional Centre at Milton, Ontario. In so doing, the Board sub- stituted the penalty of discharge with a ten'day suspension As part of that Award, the Grievor was to be compensated for all lost wages and benefits subsequent to the period of suspension. In addition, the Board retained jurisdiction pending the resolution of the appropriate compensation. The Parties have agreed to the quantum of compen- sation payable to the Grievor except in one significant respect, namely compensation for loss of overtime. On the advice of his solicitor, the Grievor accepted a cheque dated August 12th, 1982 for $3,713.00. In a letter dated August 18th, 1982 (Exhibit 1) the Grievor's solicitor advised the Ministry that the payment did not represent full compensation in the absence of payment for "overtime". In that letter Mr. Paliare advised the Ministry that arbitration authorities provide that "items such as overtime are to be compensated for when the Board has given an order that the employee is to receive compensation from and after a particular date". He also proposed a formula for the calculation of overtime. The Ministry adopts the position that the Grievor was not entitled to overtime. In a letter dated August 26th, 1982(Exhibit 2), the Ministry argued that entitlement to overtime compensation "depends entirely on the specific language of the Collective Agreement". Mr. Benedict, on behalf of the Ministry, argued that the Grievor was not entitled to overtime compensation upon reinstatement because of the wording of Article 13.4 of the Parties' Collective Agreement. At the supplementary Hearing, the only oral evidence was that of the Grievor. He testified that at Maplehurst there was a system for the utilization of Correctional Officers for overtime work on an equitable basis when "casuals" were unavailable. Further, he testified that in practice few Correctional Officers were willing to work overtime, and of these willing to work most were selective in the scheduling of overtime assignments. Mr. Boucher's evidence was that he was prepared to accept "work any shift, any time", and that fact was well known. He testified that in the 1981 calendar year he had worked 56 overtime shifts and had been advised by Superintendent Roberts that he had accumulated the second highest overtime service at Maplehurst. The evidence was that a Mr. M. Coulson was the only Maplehurst Correctional Officer who earned more money than the Grievor for overtime work. - 4 - The Grievor alleged that subseq'ient to his discharge he would have accepted all overtime offered to him. It was the Grievor's testimony that his budget was based on overtime. The Parties agreed that Correctional Officers had the period o in fact worked overtime at Map '1 ehurst between f the Grievor's discharge and hi s reinstatement. No useful purpose would be served to repeat the arguments of Mr. Paliare and Mr. Benedict - suffice it to say that each argument was ably presented and heavily documented by precedent. In his argument, Mr. Paliare requested interest on the overtime portion of'the compen- sation in order to put the Grievor back into the position he would have been in had the Ministry not discharged him. As stated previously, the Ministry in denying ing of title 13 ied heavily on the word compensation for overtime rel Article 13 in the Parties' Co reads as follows: llective Agreement. Ar "ARTICLE 13 - OVERTIME 13.1 The overtime rate for the purposes of this Agreement shall be one and one-half (l-1/2) times the employee's basic hourly rate. 13.2 In this Article, 'overtime' means an authorized period of work calculated to the nearest half-hour and performed on a scheduled working day in addition to the regular working period, or performed on a scheduled day(s) off. I - 5 - 13.3.1 Employees in Schedules 3.7 and 4.7 who perform authorized work in excess of seven and one-quarter (7-l/4) hours or eight (8) hours as applicable, shall be paid at the overtime rate. 13.3.2 Overtime shall be paid within two (2) months of the pay period within which the overtime was actually worked. 13.4 Employees in Schedules 3 and 4 who perform authorized work in excess of seven and one-quarter (7-l/4) hours or eight (8) hours as applicable, shall receive com- pensating leave of one and one-half (l-1/2) hours for each hour of overtime worked, at a time mutually agreed upon. Failing agreement, the ministry shall reasonably determine the time of the compensating leave. 13.5 Where there is mutual agreement, employees may receive compensating leave in lieu of pay at the overtime rate or may receive pay at the overtime rate in lieu of compensating leave. 13.6 Compensating leave accumulated in a calendar year which is not used before March 31 of the following year, shall be paid at the rate it was earned. Effective March 1, 1978, the March 31 date Mayo be extended by agreement at the local or ministry level." Basically, it was Mr. Benedict's position that payment for overtime under the Collective Agreement depended exclusively on its performance. By way of contrast, he argued that payment for regular wages was paid when an employee worked his regular hours, but also when the employee did not work at all, as for example, Posting of Vacancies (Article 4); Standby Time (Article 15); Military Service (Article 33); Vacation and Vacation Credit (Article 46) to mention but a few of the numerous examples cited. - 6 - In a determination of the issue, it is helpful to recite the appropriate arbitral principles. In Re Fires,tone ml Products of Canada and United Automobile Workers, Local 27, Unit 7 (1974), 18 L.A.C. (2d) 18 (Weatherill) it is stated at page 18: "The general rule relating to compensation in cases such as this is that the aggrieved person is to be placed, as nearly as possible, in the position he would have been in, had it not been for the wrong done to him. Here, the wrong, as has been found, consisted in discharging the grievors, rather than sus- pending them for a period of one month. Had there simply been a one-month suspension, the grievors would have continued to accrue seniority, to enjoy the benefits of the welfare provisions of the collective agreement, and, after July 6, 1973, to make the earnings, including incentive earnings and overtime earnings, which would have been open to them until the time of their reinstatement. There are two important qualifications to this general rule which must be noted. One is that there is a duty on the aggrieved person to mitigage his losses. Entitlement to compensation involves a showing that serious attempts have been made to seek employment elsewhere, and the amount of such earnings is to be set off against the amount of compensation otherwise payable. The second qualification is that it is an employee's actual loss, and not a notional loss, which is to be made up. If, for example, there had been a lay-off of employees during the period in question which would have affected the grievors, then (apart from any benefits that might accrue in such circumstances), the grievor would not be entitled to compensation for loss of earnings during that period. Again, if the grievors had been sick and unable to work, they would not be entitled to compensation for loss of other benefits to which they would haves had a claim." - 7 - In our opinion, neither qualification to the general rule is applicable in the instant Grievance. The evidence at the supplementary Hearing was that the Grievor did in fact attempt to mitigate his losses by seeking alternate employment. The fact that he was unsuccessful in that pursuit is not surprising in light of the present economic climate, and in view of his then pending Grievance. In any event, the Supreme Court of Canada Decision in Red Deer College v Michaels et al (1975), 57 D.L.R: (3d) 386, [1976] 2 S.C.R. 324, stands for the proposition that the onus is on the employer to show that the efforts made to obtain alternative employment were not reasonable in the circumstances. In the instant Grievance, the Ministry has failed to discharge that onus. In addition, the Grievor's loss can be characterized as a real as opposed to a notional loss. Under the Crown Employees Collective Bargaining Act, R.S.O. 1980, Chapter 108, the Ontario Legislature has seen fit to give Boards of Arbitration broad remedial authority. Section 19(3) of the Crown Employees Collective Bargaining Act confers upon a Board specific remedial authority as therein set out: "19(3) Where the Grievance Settlement Board determines that a disciplinary penalty or dismissal of an employee is excessive, it may substitute such other penalty for the discipline or dismissal as it considers just and reasonable in all the circumstances." - 8 - Under that section the Board has remedial authority to impose a remedy which is just and reasonable in all the circumstances. Sect llective ion 19(l) of the Crown Employees Co confers general remedial authority of Arbitration. That section reads as follows: Bargaining Act to Boards "19(l) Every collective agreement shall be deemed to provide that in the event the parties are unable to effect a settlement of any differences between therm arising from the interpretation, application, administration or alleged contravention of the agreement, including any question as to whether a matter is arbitrable, such matter may be referred for arbitration to the Grievance Settlement Board and the Board after giving full opportunity to the parties to present their evidence and to make their submissions, shall decide the matter and its decision is final and binding upon the parties and the employees covered by the agreement." In the opinion of this Board, the Union has established both at the Hearing and at the supplementary Hearing that the Grievor regularly worked overtime at Maplehurst and had done so over an extended period of time. The Parties are agreed that overtime was available between the date of the Grievor's discharge on December 21, 1981 and the date of his reinstatement on July 29, 1982. December 21, 1981 actions effective 1 By wrongfully discharging the Grievor on as the Board so found, the Ministry by its y denied the Grievor overtime. Accordingly, 9 - having regard to what is just and reasonable in all of the circumstances and the remedial authority conferred by Section 19 of the Crown Employees Collective Bargaining Act, we are of the opinion that the Grievor is entitled to be compensated for loss of overtime. No evidence was presented at the supplementary Hearing regarding the precise calculation of the Grievor's lost overtime. We are of the view that Mr. Paliare's proposed formula for that calculation is reasonable and should be implemented for the period following the 10 day suspension to the date of his reinstatement subsequent to the Award. In claiming interest on overtime withheld, Mr. Palaire relied upon the recent arbitral Award of P. C. Picher in Re Air Canada and Canadian Airline Employees' Association (19811, 29 L.A.C. (Zd) 42. We are of the opinion that the principle involved in the Air Canada Award should not be extended to an Award of this Board. Subject to the above paragraph, this Grievance shall succeed. We shall retain jurisdiction in the event r - 10 - that the Parties are unable to agree on the appropriate overtime compensation. DATED at Brantford, Ontario, this 21st day of April, A:D., 1983. L&-c. 1 <=-- 7 Richard L. Verity? Q.C. Vice Chairman -e- K. w. Preston Member 8: 2100 2: 1470 .