Loading...
HomeMy WebLinkAbout1985-1044.Aubin.88-01-15SETTLEMENT Between: IN THE MATTER OF AN ARBITRATION THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD 1044185 OPSEU (C. Aubin) and The Crown in Right of Ontario (Ministry of Correctional Services) Before: J. Gandi Vice Chairman J. McManus Member M. O'Toole Member For the Griever: M. Ruby Counsel Gowling and Henderson Barristers and. Solicitors For the Employer: D. Dalgleish Regional Business Administrator Ministry of Correctional Services Hearing: August 5, 1987 Griever Employer DECISION The Grievance The grievor is a correctional officer at the Cornwall Jail. He is grieving under Article 13 of the collective agreement that he was improperly denied an opportunity to work overtime. Article 13 reads as follows: 13..1 The overtime rate for the purposes of this Agreement shall be one and one-half (1-k) 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. 13.3.1 Employees in Schedules 3.7 and 4.7 who perform authorized work in excess of seven and one-quarter (7-b) 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. The Facts In October 1984 the grievor was injured while on duty. He was on Workers' Compensation for approximately 11 months. He then applied for Long Term Income Protection (LTIP). His application was approved, and he did not return to work until September 1985. When he returned to work he volunteered for overtime. However, he discovered that his name was on the bottom of the 'overtime list' whereas, at the time of his injury, his name had been at or close to the top. The 'overtime list' was the method used at the jail to attempt to ensure that overtime was distributed equally among those who wanted to work it. All employees were on this list. When overtime was available, management would ask the person at , -2- the top of the list. If that person accepted the overtime shift, or refused overtime without good reason, that person's name went to the bottom of the list.' The only good reasons for refusing overtime were a clash with regular shifts or illness (including injury). Once the shift was accepted, or declined without good reason. the person's name went to the bottom of the list. Richard Dagenais, the superintendent of the Cornwall Jail, testified that the reason the grievor was removed from the top of the list was that he had been placed on LTIP and was no longer considered to be on the permanent complement of the institution. Another employee was hired and, when the grievor returned to work, he exercised his 'bumping' rights under the collective agreement. Dagenais also testified that employees who were on sick leave or Workers' Compensation retained their positions on the overtime list and were 'frozen' in those positions until they returned. The Arguments The Union argued that the practice of removing the employee's .name from the overtime list and putting it back on the bottom of. the lis% when he returned from LTIP was discriminatory. The grievor remained an employee and intended to come back to work. The Union argued that Article 13 implies a reasonable and fair allocation of overtime. In support of its position, the Union cited Section 4 of the Human Rights Code (R.S.O. Chap 53, 1981) which states that: 4.---(l) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or handicap. 1981, c. 53, s.4 (1); 1986, c. 64, s.18(5). (2) Every person who is an employee has a right to freedom from harassment in the workplace by the -3 - employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin. citizenship, creed, age, record of offences, marital status, family status or handicap. 1981, c. 53; a. 4(2). (b) "because of handicap" means far the reason that the person has or has had, or is believed to have s or have had. (i) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, including diabetes mellitus, epilepsy, any degree of paralysis; amputation, lack of physical coordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a dog guide or ona wheelchair or other remedial appliance or device, (ii) a condition of mental retardation or impairment. (iii) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language, (iv) a mental disorder, or (v) an injury or disability for which benefits were claimed or received under the Workers' Compensation Act. As a preliminary objection, the Employer suggested that this Board had no jurisdiction in this matter on the basis of Chansoor (526/82) in which the Board found that there is no explict language requiring management to follow any rules and procedures with respect to overtime allocation and that it is the exclusive right of management to allocate such overtime. -4- Furthermore, the Employer argued that the move from WCB to LTIP altered the grievor's employment status and he was no longer the responsibility of the local institution. The Decision The Collective Agreementis completely silent on the question of the allocation of overtime and to suggest that there is any implied commitment to distribute it fairly and equitably would be to substantially amend the agreement and this is clearly beyond. the jurisdiction of this Board. In this, we follow the Board's established jurisprudence as reflected in Changoor. A relatively formalized procedure has developed at the Cornwall Jail for allocating overtime equitably and this is to be applauded. The fact that people on LTIP are treated differently to others with ~respect to this issue seems somewhat silly since there would be no prejudice to anyone caused by treating them the same. It may be that, indeed, this practice contravenes the Human Rights Code. But the job of this Board is not to rule on violations of the Human Rights Code. The Code has its own enforcement mechanisms and these should be used to resolve complaints arising under it. We could only use this statute in the task of interpreting a collective agreement. Since we have found no ambiguity in the interpretation of the collective agreement, the Human Rights Code simply does not come into play. Accordingly, the srievance is denied. Dated at London, Ontario, this 15th day of January, 1988 "I dissent" (Dissent attache&- --- J. McManus, Member M. O'Toole, Member DISSENT The Majority Decision acknowledges that there may very well be a contravention of the Human Rights Code (the “Code”) in that the Grievoc, while on LTIP, was treated differently than others in respect of overtime scheduling. The Grievor was “handicapped* within the meaning of sections 4 and 9(l)(v) which are as follows: “4. Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or handicap. 1981, c. 53, s-4(1); 1986, c. 64, s. 16(5). 9(l)(v) An injury or disability for which benefits were claimed OK received under the Workers’ Compensation Act.” - . . I 2. Since the Supreme Court of Canada Decision in McLeod et al; v. Egan et al. (1974) 46 D.L.R. 3rd 150 it has been the law that an arbitration board, in determining a grievance under a collective agreement and hence interpreting and applying the provisions of,a collective agreement , has a duty to construe and apply a statute of general application which affects the issue between an employer and its employees. In this case, if the Board cannot interpret Article 13 as requiring a fair and reasonable’allocation of overtime consistent with section 4 of the Code, which I would hold it should, then it must certainly interpret and apply the “Management Rights” provision of the collective agreement in accordance with the Code. Section 18(l) of the Crown Employees Collective Bargaining Act (“CECBA”) provides as follows: “18(l) EVeKy collective agreement shall be deemed to provide that it is the exclusive function of the employer to manage, which function, without limiting the generality of the foregoing, includes the right to determine: 3. (a) employment, appointment, complement, organization, assignment, discipline, dismissal, suspension, work methods and procedures, kinds and locations of equipment and classification of positions: and (b) merit system, training and development, appraisal and superannuation, the governing principles of which are subject to review by the employer with the bargaining agent, and such matters will not be the subject of collective bargaining nor come within the jurisdiction of a board: According to the majority, management derives its powers in the allocation of overtime from the rights its possesses under section 18 .of CECBA. These rights are deemed to be part of the collective agreement between the parties. The employer must exercise them in accordance with general public statutory law. The decision of the Supreme Court of Canada in McLeod v. Egan is closely analogous to this case. In McLeod V. Egan the arbitrator, like the arbitration board in this case, was i, . . 4. called upon to interpret and apply a management rights clause in the face of a general public statutory provision found in the Employment Standards Act. Mr. Justice Martland (at p. 155) found that even though rights remained “vested solely in the Company” by virtue of the management rights clause, “3y the operation of the statute (the Employment Standards Act), the right to require overtime beyond 46 hours per week from an individual employee has been taken away from the employer and become subject to the rights of the employee under section 11(2).” Likewise, in our case, although the employer has the right to ailocate overtime as it sees fit, this right, as found in the management rights clause, is circumscribed by the statutory provisions of the Human Rights Code. The management rights clause must be so interpreted and applied by an I arbitration board. To put it another way, this means that however management allocates overtime pursuant to its management rights, the interpretation and application of those rights are subject to the employee’s rights not to be discriminated against contrary to the provisions of the Human Rights Code. , 5. The majority has failed or declined to properly interpret or apply the management rights clause as modified by the Human Rights Code, even though it has found discriminatory treatment of certain disabled employees, including the grievor, in the allocation of overtime. I must, therefore, dissent from the Majority Decision. I would find that the employer has failed to properly schedule overtime under either Article 13 of the collective agreement, or under the deemed management rights provisions of the agreement as properly interpreted in accordance with the Human Rights Code. J. McManus 1911r