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Home My WebLink About1984-0222.Kellogg.85-04-12IN 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: OPSEU (R. Kellogg) Grievor - and - The Crown in Right of Ontario (Ministry of'Correctiona1 Services) Employer M. Teplitsky, Q.C. Vice Chairman S. Schachter Member F. T. Collict Member M. Rotman Barrister & Sqlicitor P. Radley Staff Relations~ Officer Personnel Branch Ministry of Correctional Services November 21,. 1984 . i 1 : ..: - 2- Article 19 has been a prolific source of grievances. It provides:. ARTICLE 19-HOLIDAY PAYMENT 19.1 Where an employee works on a holiday included undsr Arlicle 47 (Holidays), he shall be paid al the rate 01 two (2) times his basic hourly rate for a11 hours worked wilh a minimum credil of seven and one-quarler(7-1141. eight (8). or the number 01 regularly scheduled hours. as applicable. 19.2 In addition 10 the payment provided by 5eclion 19.1. an employee shall receive either seven and one-quarter (7.114) or eight (8) hours pay as applicable at his basic hourly rale or compensating leave of seven and one- quarfer (T-114) or eight (8) hours as applicable. provided lhe employee opfs for compensafing leave prior lo the holiday. 19.3 When a holiday included under Article 47 (Holidays) coin- cides with an employee’s scheduled day off and he does not work on lhal day, fhe employee shall be enfifled lo receive another day 011. 19.4 Any compensating leave accumulated under secfion~ 192and 19.3 may be fake” offaf afime mufuaffyagreed qon. Failing agreement. such time off may be faken in conjunction with fhe employee’s vacation leave or re&lar day(s) off. 19.5 Any compensating leave accumulaled under sections 19.2 and IS.3 in a calendar year which is nof used before March 31 of the follotiihg year shall be paid at fhe rate it was earned. Effecfive March 1.1978. the March 31 dale may be extended by agreement ar the local or minisby ,*“*l. 19.6 Nofwilhslanding anyfh/nlin Article 19, employees who are in classifications assigned 10 Schedule 6 and who are required lo work on a holiday Included in Arlicle 47~ (Holidays) shall receive equivalenf time off. This grievance raises for the first time (so we are advised) the question of whether under Article 19.3,, scheduled vacation'time is "an employee's scheduled day off". What difference this makes is not readily apparent. As it was explained to us it is the difference between having a lieu day to one's credit as opposed to a.vacation day. The Grievor prefers a lieu day and the Employer prefers a - 3.- The controversy arose on the following agreed Statement of Facts: As is apparent, for the two statutory holidays the Grievor was paid and he did not haves vacation credits deducted for these days. The Grievor's position, as eloquently presented by Mr. Rotman, is that he should have had two vacation credits deducted and should have received two lieu days pursuant to Section 19(3). From a monetary - 4 - perspective there is no dif~ference between the respective pUositions. The expression "scheduled day off" in Section 19(31 is defined in Article 8.1 which provides: ARTICLE B-DAYS OFF 8.1 There shall be two (2) consecutive days oil which shall be referred 10 as scheduled days ofl. except that days off may be non-conseculive it agreed upon between Ihe employee and the minislry. In my opinion a day of vacation does not 'fit this de,finition. ~Accordingly,, the Grievor's claim for two lieu days in exchange for two vacation credits cannot succeed. However, the Employer's position also cannot be sustained to the extent that the Grievor has two more vacation credits than he wants, orin my opinion, is entitled to. The Grievor was paid for December,25 and December 26 because he was on vacation. In return for this paymeti the two vacation credits should be deducted. Coincidentally, these days are also statutory holidays for which the Grievor was also entitled to payment. The Employer should deduct 'the two vacation credits and pay the Grievor for the two days unless within thirty days of this Award the parties are able to agree on two days when the Grievor can utilize these vacation credits. Failing agreement, the payment shall be ma.de. We will remain seized if there are any difficulties with imple-~ mentation of this Award. We expect the parties to have bona fide discussions with a view to reaching agreement. An - 5- appropriate compromising attitude is necessary and expected. DATED the. 12thday of April , 1985.. vice-chairman (addendum attached) S. SCHACHTER, Member ADDENDUM In agreeing with the rationale and result of the chairperson,~ I believe a few comments are appropriate explaining why this case came on for a hearing and the difference between lieu days and vacation days. The grievor works in a provincial correctional institution. As can be expected such institutions must be staffed 24 hours a day seven days a week. The collective agreement contains no relevant provisions regarding scheduling of weekends off and management in the exercise of its rights has apparently granted the grievor very few weekends off. It must be stated that it is difficult to understand why thii institution has been unable to schedule the grievor to more. weekends off when other institutions in similar circumstances like hospitals can grant their employees. every second or ate least every third weekend off. It should be understood that having to work on a weekend prevents the employee from engaging in the regular religious and community activities that stake place on weekends. Even more important the grievor is denied the opportunity of participating in normal family life during 3. time when spouse and children are looking forward to his presence. Because of the few weekends on which the grievor is given scheduled days off he wishes to be freed from work using some other form of authorized leave. The existence of vacation credits is of little apparent benefit to the grievor.’ The collective agreement is ‘again silent on the issue of scheduling vacation days and the employer has enacted a policy restricting the ability of employees to liquidate individual vacation days. With respect, this policy is I -2- < unreasonable on its face and would fail if it had to meet the test of reasonableness. This policy is discriminatory in view of the employer’s reservation to itself of the right to schedule employees on to single vacation days. A further disturbing aspect of the employer’s vacation policy is the allegation that in view of the employer’s refusal to allow employees to liquidate vacation at a convenient time employees may forfeit their remaining entitlement at the end of the calendar year. This allegation was not established by the evidence and the employee’s .response must be accepted that where mutual consent cannot be achieved employees are unilaterally scheduled on vacation in such a way that no credits are forfeited. Indeed any other~result is improper. -.* In view of the lack of flexibility of vacation credits the grievor sought to increase his lieu day entitlement. It was conceded that the collective agreement entitles employees to liquidate lieu days in conjunction with other days off. Thus where the grievw has a Friday or a Monday as a scheduled day off, by using.lieu days he accomplishes his objective of gbtaining-a weekend off. ,. i, . We have decided that the collective’agreement does not entitle the grievor to the lieu days. His remedy is to be obtained at the bargaining table where the employer can either agree to reasonable weekend off and vacation scheduling provisions or defend its refusal. In this event an interest arbitration board should give full consideration to the interests of the workers. In the meantime, I can only emphasize the expectation of the I r, I b -3- chairperson that bona fide discussions wiil be undertaken with a view to reaching agreement ofi the scheduling of the two vacation days and that we will remain seized if assistance is required in implementing the full award. 5: Schachter