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HomeMy WebLinkAbout1984-0868.Howitt.86-03-03Before OPSEU (G.L. klowitt) Grieve? and The Crown in Right of Mxrio (Ministry of Corrkcticmal Services) BTployer Before: For the Grievor: For the Fnployer: Hearing: Jkcanber 23rd, 1985 R.J. Roberts Vice-Cheiman S.J. Dunkley Member I.J. Cowan Maher A. Millard Barrister & Solicitor J. Hannah Personnel Branch Ministry of Correctional Services 2. DECISION In this arbitration, the grievor grieved that he had been denied payment for two eight-hour shifts at overtime rates. For reasons which follow, the grievance is dismissed. At the outset, it should be noted that the grievor chose not to attend the arbitration hearing. Instead, the parties stipulated to a sufficient number of facts to permit the merits of the matter to be considered by the Board. Briefly, these facts indicated that on June 4, 1984, the grievor was subpoeaned to testify as a Crown witness in a murder trial in New Westminster, British Columbia. Apparently, while on duty as a Correctional Officer at the Quinte Detention Centre, the grievor came into possession of certain information which was pertinent to this proceeding. In order to present.this testimony, the grievor was required to be in British Columbia from June 1 through to June 8. In this period of time, the grievor was compensated as follows: On June 1, he was paid for 12 hours of work at straight time. This was to cover his travel time to British Columbia. On June 2, he was paid 4 hours at his overtime rate. This was to cover his interview with the Crown Attorney. For the rest of this day, the grievor was considered to be on his regular day off. The grievor likewise did not receive any compensation for June 3, which was again considered to be his regular day off. Thereafter, from June 4 to 7 , the 3. grievor was paid for eight hours of work at his regular rate, and on June 8, the grievor received fourteen hours of pay at his regular rate to cover his travel time from British Columbia to Toronto. The Government of British Columbia paid for the grievor's airfare, accommondation and meals. It did not, however, pay the grievor any witness fees. The grievor filed a grievance claiming that on June 2 and 3, which were considered by the Ministry to be his regular days off, he should have been paid for two full shifts at his overtime rate, for a total of twenty-four hours of pay. Apparently, the grievor considered that since he was required to be away from home on a matter arising out of information which came to his attention in the line of duty as a Correctional Officer, he should have been treated by the Ministry as if he had been required to work on his regular days off. However , the only provision of the Collective Agreement which the grievor was able to cite in support of his position was Article 31.1.1, which reads as follows: ARTICLE 31 - FOREIGN, INTERGOVERNMENTAL 31.1.1 A Deputy Minister may grant to an employee in his ministry leave-of-absence with pay for a period of one (1) year for the purpose of undertaking employment with the Government of Canada in connection with a foreign aid programme or employment with a foreign govern- ment or other public agency. 4. The grievor did not make any claim under Article 32.1 of the Collective Agreement which was specific to absences "by reason of a summons to serve as a juror or a subpoena as a witness". It was common ground between the parties that Article 32.1 would not have afforded the grievor the relief which he requested. Unfortunately for the grievor, it must be concluded that likewise, Article 31.1.1 falls short of sustaining his claim: There does not appear to be any language in this Article which would cover a person in the unusual position of being a witness subpoenaed by another province. Article 31.1.1 solely .covers those employees who undertake employment with the Government of Canada in connection with a foreign aid programme, employment with a foreign government or some other public agency. The entire focus of this provision is upon employees who leave temporarily for the purposes of establishing an employment relationship with one of these other agencies. It goes without sn:!ing that being subpoenaed as a witness did not serve to make the grievor an employee of the Government of British Columbia. Article 31.1.1 of the Collective Agreement simply was not intended to cover persons in the position of the grievor. The grievance must be d ismissed. DATED at London, Ontario, ihis 3rd'day of March S. J. Dunkley, Memb& rrC L- I. J. Cowan, Member ‘I