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HomeMy WebLinkAbout1982-0274.Restorick.83-07-27274/82 TN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: For the Grievor: For the Employer: Hearing:' OLBEU (W. C. Restorickl Grievor - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) E. B. Jolliffe, Q.C. Vice Chairman D. Anderson Member W. A. Lobraico Member Employer E. J. Shilton Lennon Counsel Cavalluzzo, Hayes L Lennon Barristers & Solicitors M. P. Moran Counsel Hicks Morley Hami1to.n Stewart StOrie Barristers L Solicitors March 15, 1989 - 2 - DECISION The grievor, Mr. W.C./Restorick, is a Clerk Grade 4 who has been employed by the Liquor Control Board since April, ' 1972. He claims violation of Article 6.4 and Article 5.10 in the applicable collective agreement in that he did not receive certain holiday premium pay. The substance of the claim is set out in the grievance presented by Mr. Restorick on April 30, 1982. It was as follows: Griever was called into the store for an alqm~call (Adt Security) -Received the call at 8.45 p.m. -Arrived to the store at 9:00 p.m. - accompanie (sic) by the police -Was at the store approx. l(one) hour. -Pay roll (X-9) was prepared and sent in on April 10, 1982 - was stroked according to procedures set up. -Received pay on April 22, 1982 - was at that time made aware that he only received double time - called payroll to,vq-ify and their instruction were that everything was handled properly - violation Art VI (6.4) There is no dispute about the facts. The issue turns on the interpretation and application of several clauses in the agreement. Indeed, no witnesses were called, but counsel argued at some length the question of ambiguity, and explained three different views of what the relevant provisions of the agreement mean in Mr. Restorick's case. - 3 - Article VI of the agreement relates to "Paid Holidays." By 6.1 such holidays include Good Friday. The relevant provision is 6.4, which is as follows: 6.4 Where employees are required to perform work on a paid holiday (refer to Article 6.1) such employees shall be entitled to receive payment in the amount of three (3) times their regular' straight time hourly rate for all hours worked MI such holiday. Article V contains many provisions relating to "Hours of Work and Overtime." It is neces~sary to consider both 5.10 and 5.11, which are as follows: 5.10 Where an employee is required to report for any period of work on a paid holiday (as defined in Article 6) or other day that is not a regular working day, or on his/her scheduled day off, he/she shall lx entitled to a credit of a minimum of four (4) hours of pay at overtime rates, but where an employee performs work for more than four (4) hours after being so required to report for wrk, he/she shall be entitled to a minimum of eight (8) hours of pay at the overtime rate. 5.11 '&+o (2) or more kinds of overtime will not be paid for the same hours wxked. The three views discussed by counsel were the following: (1) Ms. Lennon argued, relying on both 6.4 and 5.10 that the grievor was entitled to 20 hours pay in respect of his attendance on Good Friday: i -4- (2) Mr. Moran argued that there would be logic in paying for only 12 hours, being triple time under 6.4 for a minimum of four hours under 5.10: (3) Management had actually paid for 16 hours, cred- iting the griever with four hours at triple time (4 x 3 = 12) and also the unused balance for the day at straight time (4 x. 1 = 4) being a total of 16 hours pay. A literal reading of Mr. Restorick's grievance would not yield any of the results discussed by counsel, but his intention, as interpreted by Ms. Lennon, apparently was to claim 20 hours' pay. In complaining that he had "only received double time," the griever was referring to payment received for 16 hours, which happens to be the equivalent of eight hours at double time, but management seems to have made its calculation on a different basis, as explained by Mr. Moran. Mr. Moran also suggested that there may be an ambiguity raised by the language of 6.4 and 5.10, when read together. On her part Ms. Lennon asked that we state our opinion on the question of ambiguity, giving reasons, and "including latent ambiguity." -5- The distinction between latent ambiguity and patent ambiguity, propounded by Lord Bacon in his "Maxims" almost four centuries ago, hasreceived attention and even respect in Canada. Sometimes it is brushed aside by British judges, and in the United States it has been held to be useful in interpreting. wills but not contracts. Professor Thayer in his "Preliminary Treatise on Evidence," described it as "an unprofitable subtlety." The meaning of language in an agreement,may be perfectly i plain or the language may be so unclear as to have no meaning at all. If, however, it is capable of more than one reasonable,and defensible interpretation, it is said to be "ambiguous." This brings us to an examination of the relevant words and phrases in 6.4, 5.10 and 5.11. The effective language in 6.4 provides that "where employees are required to perform work on a paid holiday... such employees shall be entitled to receive... three (3) times their regular straight time hourly rate for all hours worked..." The meaning is plain. So far as the griever is concerned, 6.4 requires that he receive triple pay for the hour he worked on Good Friday. -6 - In 5.10 the agreement also assures an employee of being credited with minimum hours on a holiday. The effective word? are: "where an employee is required to report for any period of work on a paid holiday... he/she shall be entitled to a credit of a minimum of four (4) hours of pay at overtime rates..." The meaning of such words is also very plain. Although Mr. Restorick worked only one hour, he was entitled to be paid for four at overtime rates. We cannot find any conflict between 6.4 and 5.10. The former fixes the rate for work on a holiday; the latter re- lates to a minimum hours credit. Moreover, 5.11 does not apply because there is no question of two or more kinds of overtime being paid in respect of one hour worked. In our opinion, the language discussed above does not give rise to any ambiguity. The words andphrases used by the parties are perfectly plain. Apart from the above requirements of 6.4 and 5.10, another question arises from the requirement in 6.1 that "an 3 -i -l- employee shall be entitled to the following paid holidays..... Good Friday....." Did the griever receive a "paid holiday" as required by 6.1? A preliminary answer to the question is that the griever did not receive a "paid holiday." If he had not been called in he would have been paid for eight hours at straight time., He was called in and worked one hour, and to that extent at least he was not getting a holiday. That, however, is not the whole story. In 6.4 the parties clearly contemplated that there would be exceptions to the rule in 6.1. It might become necessary to call in an employee and of course that is what happened to the griever. The parties therefore devised a formula for compensating an employee who does not receive a paid holiday in full, the formula which appears in 6.4 and 5.10. TWO elements go to make up the triple time provided by 6.4: they are (a) straight time resulting from the "paid holiday" plus Ib) double time for working on a day other than a regularly scheduled working day --- as occurs, for example, under 5.6(e) when an employee not regularly scheduled to work Sundays is required to work on a Sunday. -a- It is therefore clear that one-third of the triple time credited to the griever represented four hours at straight time --- or half of what he wouid have received for the holiday if he had not been required to work. The other two-thirds (or eight hours) represented the double-time premium resulting from being at work (for the minimum four hours) on a non-scheduled day. Thus the Employer took credit for the four hours, rep7 resenting one-half holiday pay at straight time, and then added four hours at straight time for the balance of the day, making a total of 16 hours, for which the griever was actually paid. Ms. Lennon drew attention to the opening words in.5.1, which are as follows: 5.1 For the purpose of this Article: (a) 'holiday' means a day on which a holiday falls or the day that is allowed in lieu thereof when the employee is required to work on the day of the holiday, as defined in Article 6. The griever's case comes to this: he did not receive a "paid holiday" nor did he receive a day in lieu thereof. Instead he merely received the overtime pay to which he was - 9 - entitled plus one-half of his holiday pay. He claims for the other half of his holiday pay, i.e. four hours at Straight time. In our view, however,,when the griever received triple time in respect of the four-hour minimum,one-third of that over- time payment (four hours) represented holiday pay at straight time. The other two-thirds was premium pay (at double time) for working on a non-scheduled day. But this left half the holiday pay (at straight time) still to be paid. That would be four hoursl,,which the employer added to 12 hours, resulting in a total of 16 hours. In the result,. we conclude that the Employer's calcu- lation was correct and that the griever was paid in accordance with the provisions of the collective agreement between the Liquor Control Board of Ontario and the Ontario Liquor Board's Employees Union. The grievance fa nd.must be Dated at Toronto this 27th day of July, 1983. 8: 3400 8: 2140 8: 3100 8: 3140 EBJ:.sol "I dissent" (see attached) D. Anderson Member W. A. Lobraico - 10 - IN THE MATTER OF AN ARBITRATION BETWEEN: ONTARIO LIQUOR BOARD EMPLOYEES' UNION (W.C. RESTORICK) - and - THE CROWN IN THE RIGHT OF ONTARIO (THE LIQUOR CONTROL BOARD OF ONTARIO) DISSENT I wish to record my dissent from the decision of my colleagues to dismiss Mr. Restorick's grievance. I would agree with them that by virtue of the operation of Articles 6.4 and 5.10, the griever is entitled to the minimum guarantee of four hours' pay at three times his regular straight time hourly rate (12 hours' pay) for working on Good Friday. I disagree, however, with the conclusion that the grievor is only entitled to an additional four hours' holiday pay for Good Friday. In my opinion, the griever is clearly entitled to an additional eight hours of holiday pay by virtue of Article 6.1 for a total of 20 hours' pay. I would hold that the benefits conferred by Articles 6.4 (in concert with 5.10) and 6.1 are both payable in full. I do not agree that four hours' of holiday pay is included as l/3 of the triple time payment made under Article 6.4. In my view, it would require specific language in the Agreement to allow for what in effect has been a proration of the holiday pay benefit conferred by Article 6.1. There is no such language contained in the Agreement. In fact, I believe a reading of Article 5.1 (a) confirms the right to full holiday pay. For these reasons, I would have upheld Mr. Restorick's grievance. Respectfully submitted /f&//L lcizL&~.~ Dan Anderson