GSB# 2003-4076, 2004-0120, 2004-0121, 2004-0122, 2004-0123, 2004-0124, 2004-0125, 2004-0126, 2004-0127, 2004-0128, 2004-0129, 2004-0130, 2004-0141, 2004-0165, 2004-0166, 2004-0167, 2004-0180, 2004-0184, 2004-0352, 2004-0353, 2004-0355, 2004-1687
UNION# 2004-0234-0042, 2004-0234-0091, 2004-0234-0092, 2004-0234-0093, 2004-0234-0094, 2004-0234-0095, 2004-0234-0096, 2004-0234-0097, 2004-0234-0098, 2004-0234-0099, 2004-0234-0100, 2004-0234-0101, 2004-0234-0112, 2004-0234-0067, 2004-0234-0068, 2004-0234-0069, 2004-0234-0083, 2004-0234-0088, 2004-0234-0127, 2004-0234-0128, 2004-0234-0130, 2004-0234-0407
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Reis et al.)
Union
- and -
The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)
Employer
BEFORE
Barry Stephens Vice-Chair
FOR THE UNION
Stephen Giles Grievance Officer Ontario Public Service Employees Union
FOR THE EMPLOYER
Mary-Jo Knappett Staff Relations Officer Ministry of Community Safety and Correctional Services
HEARING
July 22, 2005.
Decision
The parties agreed to an Expedited Mediation-Arbitration Protocol for the Maplehurst Correctional Complex. It is not necessary to reproduce the entire Protocol here. Suffice it to say that the parties have agreed to an expedited process wherein each party provides the vice-chair with written submissions, which include the facts and authorities the party intends to rely upon, one week prior to the hearing. At the hearing, oral evidence is not called, although the vice-chair is permitted to request further information or documentation. In addition, if it becomes apparent to the vice-chair that the issues involved in a particular case are of a complex or significant nature, the case may be taken out of the expedited process and processed through “regular” arbitration. Although individual grievors often wish to provide oral evidence at arbitration, the process adopted by the parties provides for a thorough canvassing of the facts prior to the hearing, and leads to a fair and efficient adjudication process.
A series of individual and group grievances have been filed regarding the calculation of continuous service dates (CSD). The grievances all relate to the time when the grievors were working as unclassified employees. The grievors assert that they were denied credit for their CSD’s as a result of not working or being given credit for 40 hours in a week, in that the employer had denied, “…fair and equitable access to hours of work by offering only 8, 10 and 12 hours shifts thus resulting in the inability to achieve 40 hours per week”. The employer responds that the collective agreement is clear, in that an employee’s CSD credit for the period of unclassified employment is calculated by adding the number of full-time weeks worked by the employee during such period, set out in Art. 18.01(b) as follows:
18.01 An employee’s length of continuous service will accumulate upon completion of a probationary period of not more than nine (9) months and shall commence:
(b) from the date established by adding the actual number of full-time weeks worked by a full-time unclassified employee during his or her full-time employment back to the first break in employment which is greater than thirteen (13) weeks.
The employer argues that, since the grievor’s could not provide evidence of having worked full-time weeks, i.e. 40 hours weeks, for the periods referenced in the various grievances, there is no evidence of a breach of the collective agreement.
The collective agreement, and the related jurisprudence between the parties, is clear on this point. The employer has the right to design appropriate shift schedules. The contracts for unclassified Correctional Officers provide for up to 40 hours of work per week, but this is not a guarantee that any unclassified CO will be assigned to work 40 hours in any particular week. A correctional officer's CSD is calculated based on full 40-hour work weeks, and the issue raised by these grievances does not alter that requirement. As a result, the grievances are dismissed.
Dated at Toronto, this 3rd day of February 2006.