GSB# 1995-0131, 1995-0132, 1995-2132

UNION# 95A500, 95A501, 96C063

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Latimer)

Grievor

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Susan D. Kaufman

Vice-Chair

FOR THE UNION

Mr. Nelson Roland Barrister and Solicitor

FOR THE EMPLOYER

Mr. Greg Gledhill Staff Relations Officer Ministry of Community Safety and Correctional Services

HEARING

June 22, 2004.

Second Implementation Decision

In the Implementation Decision dated March 4, 2004, I reserved on the issue of statutory holiday pay. The parties have been unable to agree as to the grievor’s entitlement to statutory holiday pay, and have asked me to determine the issue.

On June 22, 2004 the parties made informal submissions on this issue.

The employer advised that it had now complied with all the Board’s directions given in the May 24, 2001 Decision to remediate the workplace, and none were outstanding with the exception of the matter of statutory holiday pay and the grievor’s current health status and whether she is now able to return to work.

The employer advised that since May 9, 1999, the last day the grievor had worked, it had placed the grievor on an administrative schedule, which, it advised, is a normal practice within the Ministry. It explained that when an employee is on an administrative schedule, the employer calculates the employee’s statutory holiday entitlements as though he or she were working 9 a.m. to 5 p.m. Monday to Friday. On that basis, it submitted, since May 9, 1999, for each statutory holiday which fell between Monday and Friday, it had paid the grievor for 8 hours at her then regular hourly rate. For this reason, it explained, no notations regarding holiday pay appeared on the grievor’s paycheques. It advised that the grievor’s CORPAY cheque stub # 038816, dated 2/15/01, which indicates “HOLPAY ST 32.00 (hours) $700.48” is “an anomaly”, indicating a payment to the grievor for four 8-hour days which were “1999 days in the bank” which the grievor earned “before going on the administrative schedule.” There is a requirement to pay those days out if they are not taken as holiday time on another date. It submitted that compensation at her regular rate of pay had resulted in the grievor having been appropriately paid for statutory holidays since May 9, 1999.

The employer submitted that under Art. 2 of the Collective Agreement, the management rights clause, management had the right to determine the grievor’s work schedule, and it had put her on an administrative schedule. The only way to continue the grievor’s salary is on an administrative schedule, which is management’s right under Art. 2. As well, that is the norm for the Ministry. An employee is entitled to payment for the eleven statutory holidays listed in Art. 47. If one of those holidays falls on a Saturday or Sunday, under Art. 47.2, the holiday is moved to the next working day. If New Year’s Day falls on a weekend, an employee on an administrative schedule gets the following Monday as a paid holiday off. Under the Correctional Bargaining Unit Collective Agreement (“COR”), Art. COR 13 deals with Holiday Payment. Art. COR13.3 indicates that it is understood that Art. COR13.1 and 13.2 apply only to an employee who works the holiday and an employee who for any reason does not work is not entitled to the premium pay in COR 13.1 and 13.3. As a result of those provisions, an employee who does not work the statutory holiday is not entitled to a day in the bank.

The grievor stated that prior to May 9, 1999, she had been working 12-hour shifts, which could fall on any day of the week, in rotation. She said that she had been required to work statutory holidays, and had been compensated by payment at twice her regular hourly rate for the twelve-hour shift, and as well, had received one day in the bank. (The employer confirmed that the grievor had been compensated in this manner at that time for working statutory holidays. It advised that the day in the bank would have been paid out to the grievor if it had not been taken as a holiday or day off by March 31 of the following year, pursuant to Art. COR 13.6.) The grievor said that she believed that she had received an 8-hour day in the bank for each statutory holiday she had worked, and said that since May 9, 1999, the employer had paid her for the banked days. She calculated her entitlement as follows:

Year No. of Stats If not worked Would have worked

1999 7 3x8x$21.60=$518.40 4x12x2x$21.60=$2073.60 plus 4 days in bank

2000 11 5x8x$21.89=$875.60 6x12x2x$21.89=$3152.16 plus 6 days in bank

2001 11 5x8x$22.32=$892.80 6x12x2x$22.32=$3214.08 plus 6 days in bank

2002 11 5x8x$24.26=$970.40 6x12x2x$24.26=$3493.44 plus 6 days in bank

2003 11 5x8x$24.85=$994.00 6x12x2x$24.85=$3578.40 plus 6 days in bank

Total $19,762.88 These 28 days in the bank is

calculated as regular pay received

She asked that the Board direct that interest be paid on those amounts.

On her behalf, it was submitted that the grievor had not been on an administrative schedule when she went off work. The implementation hearing of June 22, 2004 is the first notice the union had received of the employer having changed her schedule. Changing her schedule enabled the employer to avoid paying her what they were obliged to. This was particularly inappropriate in the circumstances that she had to go off work due to the employer’s conduct. The employer cannot alter the grievor’s schedule to relieve her of responsibilities which, but for their own conduct, she would have fulfilled. The Board should assume the grievor’s normal C.O. schedule continued, and use the grievor’s figures.

This is not a normal case. The interim order directs that she be kept on salary as if she were working. Statutory holidays are an entitlement under Art. 47. The union is not going overboard and claiming shift premiums. The collective agreement requires notice of a change of shift be given. The union seeks the status quo before May 9, 1999, which includes her entitlement under Art. 47 to statutory holidays.

The grievor’s time off work since May 9, 1999 is not analogous to or a substitute for a holiday. She is off work pursuant to an interim order of the Board. The issue is how do we deal with an entitlement to a day off with pay. Her circumstances should be recognized. We don’t ask for triple time for all the statutory holidays. She worked rotating shifts; consequently, 50:50 is fair. She should be compensated for statutory holidays as if she were working.

The employer submitted that the Board had concluded that the grievor had been unable to work for medical reasons since May 9, 1999. There is no requirement for her to be given notice of a schedule change. It is a longstanding practise. An employee is entitled to be paid for actual time off. Under the COR Agreement, the grievor was not authorized to work the holidays and did not work them, so she is not entitled to a day in the bank.

The Board’s Reasoning:

When the grievor did not return to work after May 9, 1999, the employer was entitled to take the administrative steps it deemed necessary to ensure that the grievor’s salary was continued, including putting the grievor on an administrative schedule. It was within its rights as management to put her on that schedule, particularly after the Board’s Fourth Interim Ruling dated March 13, 2000, which obliged it to continue her salary.

In the conclusions of the May 24, 2001 Decision, the Board directed:

The grievor is to be compensated and made whole, with interest, for all

loss of salary, benefits and seniority she incurred . . .

The Board also directed the employer to continue to pay the grievor’s salary pending final determinations as to remedy.

The grievor has been unable to work since May 9, 1999 for medical reasons. There is little doubt that the employer’s conduct contributed to and aggravated her medical condition, resulting in her inability to work thereafter. If the grievor had been able to continue working after May 9, 1999, she would have done so on a rotational schedule, on which schedule she would have worked 12-hour shifts including weekends.

As the grievor was not at work after May 9, 1999, and was therefore not authorized after that date to work on statutory holidays, she lost the opportunity to work them. That loss of opportunity is a loss for which she is entitled to compensation, under the “make whole” provision of the Decision. She is not precluded from receiving that compensation by Art. COR 13 of the collective agreement. Art. COR 13 does not limit the authority of the Board to fashion a remedy in these most unusual circumstances. She is not precluded from receiving that compensation by the direction to the employer to continue to pay her her salary. The direction in the May 24, 2001 Decision to make the grievor whole for her losses authorizes and directs the employer to compensate her for her losses over and above the continuation of her salary.

There was no evidence from either party as to the frequency with which the grievor had worked statutory holidays before May 9, 1999. The absence of that historical evidence makes it difficult to accurately identify the extent of her loss of opportunity, and her entitlement to compensation. However, in view of the amount of time that has elapsed since the Decision was rendered, and in the interest of resolving this outstanding issue as quickly as possible, the Board will attempt to determine the grievor’s entitlement using general principles. The grievor will not be perfectly compensated for each loss she incurred, but the compensation ordered is intended to put her as close to the financial position she would have been in had the employer’s conduct not occurred.

On June 22, 2004, it was not in dispute that the employer had, since May 9, 1999, paid the grievor for statutory holidays which arose on weekdays at a rate of eight hours at her regular hourly rate of pay. It was not in dispute that when she had worked statutory holidays before May 9, 1999, she had been paid for that shift at double the then current regular hourly rate of pay and was allotted a day in the bank, which, if not taken as a paid day off by March 31 of the following year, was paid out to her.

Art. 47.3 provides:

Those employees whose work schedules are subject to rotating work weeks which include scheduled weekend work on a regular or recurring basis shall have the Canada Day, Remembrance Day, Christmas Day, Boxing Day and New Year’s Day holidays designated as July 1st, November 11th, December 25th, December 26th and January 1st, respectively, and Article 47.2 shall have no application to these employees in respect of these holidays.

I conclude that had the grievor continued to work after May 9, 1999, Art. 47.3, rather than 47.2, would have applied to her. Six of the eleven statutory holidays in Art. 47.1 fall on weekdays each year. Five of them may fall on weekends from time to time, though all five will not fall on a weekend in any given year.

As the grievor worked a rotating schedule which included weekends before May 9, 1999, and considering the contingencies of e.g. illness or inability for any other reason to work on a statutory holiday that she was scheduled to work on her rotating schedule, or her having chosen to take paid time off in lieu of a statutory holiday, and in the absence of any evidence to the contrary, I conclude that the grievor probably would have worked five of the eleven holidays each year, and is entitled to be compensated for the loss of opportunity to have done so since 1999 at twice her hourly rate for the year in which the loss was incurred. I conclude that she probably would not have been scheduled to work the other six of the eleven holidays each year, and that pursuant to Art. COR 13.4, where the holiday coincided with her scheduled day off, she would have been entitled to receive another day off. In view of her current circumstances since May 9, 1999, she could not take the compensating leave to which she would have been entitled, and I conclude that the employer has properly compensated her for those six days by paying her her regular pay for the statutory holidays.

On the representations made before me, I conclude that since May 9, 1999, the employer has paid the grievor for eight hours for each statutory holiday, and that therefore it has already compensated her for each “one day in the bank” for each of the five statutory holidays that I have concluded she notionally would have worked each year.

I calculate the loss of the grievor’s lost opportunity to work statutory holidays as follows:

1999

5 days x 12 hours x $21.60 x 2 = $2,592.00

Interest:

2000 interest ($2,592.00 x .049) $ 127.01

principal and interest $2,719.01

2001 interest ($2,719.01 x .049) $ 133.23

principal and interest $2,852.24

2002 interest ($2,852.24 x .049) $ 139.76

principal and interest $2,992.00

2003 interest ($2,992.00 x .049) $ 146.61

principal and interest $3,138.61

Total lost statutory holiday pay in 1999 and interest 2000 to end 2003: $3,138.61

2000

5 days x 12 hours x $21.89 x 2 = $2,626.80

Interest:

2001 interest ($2,626.80 x .06) $ 157.61

principal and interest $2,784.41

2002 interest ($2,784.41 x .06) $ 167.06

principal and interest $2,951.47

2003 interest ($2,951.47 x .06) $ 177.09

principal and interest $3,128.56

Total lost statutory holiday pay in 2000 and interest 2001 to end 2003: $3,128.56

2001

5 days x 12 hours x $22.32 x 2 = $2,678.40

2002 interest ($2,678.40 x .034) $ 91.07

principal and interest $2,769.47

2003 interest ($2,769.47 x .034) $ 94.16

principal and interest $2,863.63

Total lost statutory holiday pay in 2001 and interest 2002 to end 2003: $2,863.63

2002

5 days x 12 hours x $24.26 x 2 = $2,911.20

2003 interest ($2,911.20 x .03) $ 87.34

principal and interest $2,998.54

Total lost statutory holiday pay in 2002 and interest to end 2003: $2,998.54

2003

5 days x 12 hours x $24.85 x 2 = $2,982.00

Total lost statutory holiday pay in 2003: $2,982.00

Total lost statutory holiday pay and interest to end 2003: $15,111.34

Decision:

The Board orders and directs that the employer is to pay the grievor forthwith $15,111.34 as compensation for the loss of opportunity to work statutory holidays and the resultant loss of statutory holiday pay and interest thereon up to the end of 2003. The employer shall pay interest on $15, 111.34 at the average post-judgment interest rate for the first and second quarter of 2004 to the date of payment. The grievor is to be compensated by the employer for any additional income taxes imposed upon her as a result of receiving a lump sum in lieu of lost statutory holiday pay, in the year she receives them, subject to the considerations set out under the heading “k) Potential Loss Due to Increased Tax Rate in Year of Receipt” in the March 4, 2004 Implementation Decision.

The employer is to continue to pay the grievor’s regular salary pursuant to the March 2000 Interim Ruling and the May 24, 2001 Decision, along with compensation of 45.56 hours per year for lost overtime and five statutory holidays notionally worked per year, pending the issuance of a further order by the Board or until the parties agree to other arrangements.

On June 22, 2004, the employer’s representative acknowledged that the most recent medical report indicated that the grievor was unable to work. That report was dated October 8, 2003. Since October 8, 2003 there has been compliance with the directions given in the May 24, 2001 Decision and with the undertakings set out in the Board’s August, 2003 ruling, which may have an impact upon the grievor’s ability to work, and which should be canvassed with her doctor(s).

Consequently, Mr. Roland, Counsel for the union is directed to provide the grievor’s specialist, Dr. I., or his successor, within 1 month of the date of this Decision, complete written documentation regarding all postings/assigments at the Sudbury Jail and at Cecil Facer Youth Centre, and written information regarding dates and times and other details pertaining to Young Offenders Act or Youth Criminal Justice Act training, and to request his written opinion as to whether the grievor can return to work at this time or undergo preparatory training, or, if not, the date by which s/he or they anticipate that she can return to work or undergo preparatory training, if any, and, if so, whether s/he or they recommend that she return to work at the Sudbury Jail or elsewhere. Mr. Roland is directed to advise the grievor’s specialist of the matters set out at p. 221 - 222 of the May 24, 2001 Decision, and request his/her opinion regarding those matters. It would be appreciated if the opinion/report could be provided within four months of the receipt by the specialist of the request.

The employer is to promptly provide Mr. Roland the information requiring the dates and times and other details pertaining to Young Offenders Act or Youth Criminal Justice Act training available.

The grievor is directed to promptly sign all releases necessary to authorize her doctor(s) to provide this information to Mr. Roland.

Mr. Roland is to provide the specialist’s written opinion, once received, to the employer’s representative, Mr. Gledhill. Mr. Roland and Mr. Gledhill are to hold the information contained in the specialist’s written opinion in strictest confidence. The contents of the specialist’s written opinion at this point are to be disclosed only to me, pending the issuance of a further order, or until the parties agree in writing to other arrangements.

I will remain seised with respect to all issues pertaining to remedies, including but not limited to whether the grievor’s salary will be continued, and seised with respect to the orders and directions given in the May 24, 2001 Decision and in the August 28, 2003 Ruling and March 4, 2004 Implementation Decision as well as this Decision. I will also remain seised with regard to the balance of the remedy.

If the parties are unable to agree as to how to proceed once the specialist’s written opinion/report is received, they may arrange a further hearing through the Registrar of the G.S.B.

Dated at Toronto, Ontario this 28th day of June, 2004.