GSB# 2000-0983, 2000-1255, 2000-1400, 2001-0012, 2001-0041

UNION# 2000-0341-0027, 2000-0341-0035, 2000-0341-0019, 2001-0341-0001, 2001-0341-0009

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Schmidt et al.)

Union

• and -

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

Employer

BEFORE

Ken Petryshen

Vice-Chair

FOR THE UNION

Richard Blair Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Ferina Murji Counsel Ministry of Government Services

HEARING

October 24, 2005.

Decision

It is alleged in the five grievances before me that the Employer has contravened the overtime provision of the Collective Agreement which applies to unclassified employees. The four individual grievances and the group grievance signed by 26 individuals were filed in the years 2000 and 2001 by or on behalf of unclassified Correctional Officers (“COs”) employed at the Millbrook Correctional Centre (“Millbrook”). The operative Collective Agreement was effective from January 1, 1999, to December 31, 2001. There was no challenge to my jurisdiction to hear and determine these grievances.

The grievances raise the issue of whether attendance credits can be used in calculating overtime for unclassified employees. An unclassified employee may use an attendance credit to cover an absence due to illness or injury and by electing to use such a credit for a one-day absence, for example, the employee is paid for the missed shift. Prior to mid-2001, some correctional institutions included attendance credits in the calculation of overtime, but others did not. In June of 2001, subsequent to the filing of the grievances before me, the Negotiations Secretariat directed that attendance credits should not be included in the calculation of overtime. Counsel indicated that there were grievances filed by unclassified COs at other institutions that raise the same issue. At this time, the parties are seeking only an interpretation of the relevant Collective Agreement provisions and they have not addressed whether any particular grievor is entitled to a remedy. Each party has reserved the right to rely on the principle of promissory estoppel in any future proceedings.

The overtime provision which applies to unclassified employees is article 31.3.1. This provision has four parts, with (a) and (b) dealing with daily overtime and (c) and (d) addressing weekly overtime. For our purposes, the relevant parts of article 31.3.1 are those that deal with weekly overtime and they provide as follows:

31.3.1 One and one-half times the basic hourly rate shall be paid for authorized

hours of work performed:

(c) in excess of the employees’ regularly scheduled work week, or

(d) in excess of thirty-six and one-quarter (36¼) or forty (40) hours per week where employees do not have regularly scheduled work days.

As is apparent, there is a distinction made in parts (c) and (d) based on whether or not an employee has regularly scheduled work. Part (c) applies to unclassified employees who have a regularly scheduled work week. For example, an unclassified employee might have a contract providing for a regular work week of two days a week. In such a case, overtime would be payable for hours of work performed in a week in excess of the two days. Part (d) applies to employees who do not have regularly scheduled workdays. Typically, this is the case with unclassified COs. They are employed pursuant to “casual” contracts which provide that their normal hours of work are not to exceed forty hours per week. They are entitled to overtime for hours of work performed in excess of forty hours per week.

Given the nature of this dispute, counsel determined that it was unnecessary to call oral evidence. For purposes of their submissions, counsel focused on the following fact situation which would be typical for an unclassified CO covered by article 31.3.1(d). An unclassified CO is scheduled to work a forty-hour week, Monday to Friday. Unable to work one of the shifts due to illness, the CO takes a sick day and uses an attendance credit. The CO then works an eight-hour shift on Saturday. The CO is paid for forty-eight hours for the week, which includes the eight-hour attendance credit, but only performs forty hours of actual work. The Union takes the position that the unclassified CO in this situation is entitled to overtime for the eight hours worked on Saturday. The Employer takes the position that an unclassified CO must actually work in excess of forty hours before overtime is payable and, therefore, the CO in this example is not entitled to overtime for the eight hours worked on Saturday.

Counsel for the Union made a number of submissions in support of the position that an attendance credit can contribute to the overtime threshold. Counsel noted that it is important to take into account the purpose of the overtime provision, emphasizing that an overtime provision can focus on compensating employees either for working additional hours or on compensating them for the inconvenience of working beyond their normal work week. Counsel referred me to Re OPSEU and Ministry of Correctional Services, 27/84 (Jolliffe). The parties in this case put a number of questions to the Board relating to the overtime entitlement of seasonal and part-time employees. Only two of the questions concerned weekly overtime and they required the Board to interpret what is now article 31.3.1(c). In relation to this provision, the responses of the Board do indicate that the scheduling or timing of the work is relevant. However, the Board was not called on to interpret what is now article 31.3.1(d), nor was it asked to deal with the impact of using an attendance credit for overtime.

Counsel for the Union submitted that it is necessary to consider carefully the language of the attendance credits provision. The attendance credits and sick leave provision provides as follows:

31.8.1 Employees who work thirty-six and one-quarter (36¼) or forty (40) hours

per week shall earn attendance credits of one and one-quarter (1¼) days for each calendar month of full attendance or for each calendar month of leave of absence granted under Article 31.9 (Pregnancy and Parental Leave). Attendance credits may be used for protection purposes only in the event that an employee is unable to attend to his or her official duties by reason of illness or injury. However, accumulated attendance credits earned prior to April 1, 1978 may be transferred to the Classified Service when the appointment to the Classified Service is made from continuous, unbroken, full-time Unclassified Service. (emphasis added)

Counsel submitted that it is significant that the parties included the words “for protection purposes”. He pointed out that they did not simply indicate that an employee using an attendance credit is paid for the day if the absence is due to sickness or injury. Counsel argued that by using the words “for protection purposes” the parties intended to protect more than just the loss of wages. He submitted that what is protected is any entitlement the employee would have had if she or he had worked the day. In other words, it was argued that an employee who uses an attendance credit is to be treated as if the employee worked the day and that any identifiable entitlements associated with working the day are protected.

Counsel for the Union submitted that the Union’s interpretation of article 31.8.1 is

applied by the parties when calculating an employee’s continuous service date. He submitted therefore that it is instructive to examine the impact of using an attendance credit when calculating continuous service.

Upon appointment to the classified service and the completion of a probationary period, an employee’s seniority date (or continuous service date) is established by adding certain weeks of prior unclassified service. For our purposes, the relevant portions of the continuous service provision are as follows:

ARTICLE 18 – SENIORITY (LENGTH OF CONTINUOUS SERVICE)

18.1 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; (emphasis added)

“Unbroken service” is that which is not interrupted by separation from the public service; “full-time” is continuous employment as set out in the hours of work schedules for the appropriate classifications; …

As one can see from (b) above, it is necessary to add “the actual number of full-time weeks worked” in order to calculate a continuous service date. The question arises as to whether an unclassified employee has worked a full-time week if an attendance credit has been used, with the result that the employee did not work a full week, but was paid for a full week. Arguing that what occurs in the continuous service context should also occur in an overtime context, counsel relied on two decisions which illustrate how the parties treat the use of an attendance credit when calculating continuous service. The first is Re Union Grievance, 2875/96 (Dissanayake) and the other is Re OPSEU (Lane), 1603/95 (Gray). Having regard to the reliance placed on these decisions by the Union and my view on their significance, I will review the decisions in some detail.

In Re Union Grievance, supra, the Union grieved that the Employer was incorrectly calculating the continuous service date of employees with prior Go-Temp service. Following a Memorandum of Agreement dated May 23, 1996, Go-Temp service was taken into account when calculating the seniority of an employee subsequently appointed to the classified service. The Union took issue with the way the Employer differently treated prior Go-Temp service and prior unclassified service. The different treatment occurred for weeks in which there was an absence due to illness. For purposes of article 18.1, the Employer did not count days when a Go-Temp was scheduled to work but did not work due to illness. However, it did count such days as days “worked” for unclassified employees who used an attendance credit. The Employer’s explanation for the different treatment is set out beginning at page 5 of the decision:

The employer concedes that it treats an employee joining the classified service from prior unclassified service differently than an employee joining after a period of employment in the unclassified service.[sic] Thus an absence due to sickness during the period of employment in the unclassified service does not result in the diminishing of the calculation of the period of service. The employer argues that this different result for unclassified employees, in contrast to Go-Temp employees, flows from the nature of the rights of the two groups under the collective agreement. The employer points out that unclassified employees, under article 31 are entitled to accumulate sick leave credits to be used when sickness prevents them from attending work. An unclassified employee using sick leave credits is paid regular wages despite the absence. Thus, the argument goes, despite the absence due to sickness, the employee in effect is deemed to have actually worked on the day in question. Therefore, that absence does not result in the employee working less than full-time hours during the week.

In contrast, Go Temp employees who do not actually work due to sickness, are not deemed to have worked on those days. They are not entitled under the collective agreement to earn any sick leave credits and are not entitled to be paid on days they are absent due to sickness. Therefore, when a Go Temp is absent due to sickness even on a single day his weekly hours fall below the full-time level and that week is not eligible for consideration under article 18.1(b).

In determining that the different treatment of the two types of prior service was warranted by the Collective Agreement, the Board wrote as follows:

A Go Temp employee does not accumulate sick leave credits and is not paid during an absence due to sickness. Therefore, there is no room for deeming, even notionally, that the employee worked on such a day. In contrast, unclassified employees are situated differently under the collective agreement. They do accumulate sick leave credits and when they use an earned sick credit on a day of absence, they are deemed to be at work and are paid their wages as if they were at work. Thus despite an absence due to sickness, the employee’s hours for the week do not get reduced below full-time hours. The Board concludes that this difference in result on an application of article 18.1(b) is one dictated by the collective agreement and that the employer has not contravened the collective agreement.

In Re OPSEU (Lane), supra, the issue again concerned the calculation of continuous service. Specifically, the Board was required to determine whether certain weeks were “full-time weeks worked” for which the grievor was entitled to credit under article 18.1. One of the issues in dispute was the status of weeks during which the grievor was scheduled to work forty hours, but was paid for less than forty hours because he was sick or left early due to sickness. The grievor was not entitled to use an attendance credit in the circumstances. With respect to this issue, the Board determined that the grievor was not entitled to credit for weeks in which he did not work forty hours in a week due to unpaid illness. The Board noted that the parties before it did not dispute the practice described in Re Union Grievance, supra. nor the consistency of the practice with the language in article 18.1(b). It commented on that decision as follows:

The decision in Union Grievance, supra, is the only one cited to me in which reference is made to a practice of treating hours scheduled but not worked as though they were hours worked for purposes of Article 18.1(b). The practice described is that hours scheduled but not worked due to illness are treated as though they were worked, but only if attendance credits were available and applied to protect the affected employee’s income. It appears, in other words, that hours paid for as a result of the application of attendance credits are being treated as though they were hours worked for purposes of applying Article 18.1(b).

And further in paragraph 26 of the decision, the Board commented that in Re Union Grievance, supra, the Board concluded that:

…“a week can be considered ‘full-time’ only where the employee has worked the number of hours specified for the particular classification in the hours of work schedules.” It accepted the employer’s practice, not challenged by the union, of treating some hours paid for but not worked as though they were “notionally” worked or “deemed” worked and, thus, properly treated as “worked” for purposes of Article 18.1(b). In the case of a day not worked due to illness and not paid for though application of attendance credits, however, the Board found that “there is no room for deeming, even notionally, that the employee worked on such a day.”

Counsel for the Union argued that the use of an attendance credit should be applied in the same way in the overtime context as it is in the seniority context. In other words, an absence for a day due to illness or injury where an employee is paid by the use of an attendance credit should be treated as a day worked for purposes of article 31.3.1. Although recognizing the different words are used in articles 31.3.1 and article 18.1, counsel submitted that there is no meaningful difference in the relevant language of the two provisions. In counsel’s submission, there is no reason for not applying the use of an attendance credit in a consistent manner when determining whether the overtime threshold has been met. Counsel also argued that private sector decisions on this issue are not helpful because of the unique nature of the language of the relevant provisions of the Collective Agreement and their historical application.

Counsel for the Employer, focusing on the language of the overtime provision, argued that an employee could only earn the benefit of overtime by actually working the hours necessary to reach the overtime threshold. She submitted that the right to overtime flows from working the hours in the weekly schedule whereas seniority rights simply flow from the status as an employee. Counsel also submitted that there no basis under article 31.3.1 for treating an absence paid for by an attendance credit as a day worked.

Counsel for the Employer referred to a number of private sector arbitration awards which deal with what is necessary to attain the overtime threshold. For example, in Re Brewers’ Warehousing Provincial Board & Brewers’ Warehousing Co. Ltd. (1957), 8 L.A.C. 35 (McCombs), three grievors claimed overtime for hours worked on their regular day off in circumstances where they did not work their usual five day week due to either sickness or injury. The overtime provision provided that “…Any time worked in excess of basic hours in any one week shall be paid for at time and one half the basic wage rate.” The Board of Arbitration denied the grievances on the basis that “…it is only when an employee exceeds eight hours of work in one day, or five eight hour days in one week, that the employee is entitled to be paid at the overtime rate of time and one half of the basic wage rate.” Counsel also referred me to the following decisions: Re Sudbury Gen’l Workers, Local 101 and M. Loeb Ltd. (1963), 1963 CanLII 1013 (ON LA), 14 L.A.C. 97 (Little), Re North Bay Hospital Commission and Ontario Nurses’ Assoc. (1976), 1976 CanLII 2139 (ON LA), 13 L.A.C. (2nd) 154 (Abbott), Re Lundy Steel Ltd. and United Steelworkers, Local 4140 (1975), 1975 CanLII 2143 (ON LA), 9 L.A.C. (2nd) 105 (H.D. Brown) and Re NAV Canada and Canadian Air Traffic Control Association (2000), 2000 CanLII 50092 (CA LA), 94 L.A.C. (4th) 75 (Hope).

Employer counsel also took the position that the denial of overtime when an employee uses an attendance credit is not discriminatory under the Ontario Human Rights Code. The Union did not suggest or argue that there existed any such discriminatory treatment. For this reason, I find it unnecessary to deal with this issue and the decisions relied on by counsel relating thereto.

In addressing the issue of whether an unclassified employee can reach the overtime threshold by using an attendance credit, it is useful to examine article 31.3.1 in isolation. Given that the grievances were filed by unclassified COs, I will focus on part (d) of this provision. In essence, this provision provides that overtime shall be paid for “authorized hours of work performed in excess of” forty hours per week. In my view, this provision when read by itself is not unlike the overtime clause set out in Re Brewers’ Warehousing Provincial Board & Brewers’ Warehousing Co. Ltd., supra, which was relied on by the Employer. It is clear from this provision that the parties intended that overtime shall be paid for hours of work performed in excess of the forty hours worked by an employee as part of a weekly schedule. Although I appreciate its submission on the purpose of the overtime provision, the Union did not argue that a CO who missed one of his Monday to Friday shifts for which an attendance credit was not used would still be entitled to overtime for hours worked on Saturday. This is consistent with the notion that a CO must work his or her weekly schedule of forty hours before overtime is payable for any additional hours worked in that week. As the submissions of the parties disclose, the central feature of this dispute is whether the use of an attendance credit for payment when absent due to illness or injury means that an unclassified employee is deemed to have worked for purposes of article 31.3.1.

Paying an employee for a shift when absent due to illness or injury is a common feature of collective agreements. I would venture to say that deeming that the employee has worked the day when paid for an absence is not common. In any event, one would expect that the parties would use explicit language if they intended that the payment for a shift not worked meant that an employee is deemed to have worked the shift. I therefore turn to the Union’s submission that such language is contained in the attendance credits and sick leave provision.

As previously noted, the Union argued that the concept of deeming a day of absence paid for by an attendance credit as a day worked can be found in the words “for protection purposes” in article 31.8.1. In my view, the meaning the Union attributes to these words is much too broad. An examination of the provision as a whole suggests that by using the words “for protection purposes” the parties simply intended to protect unclassified employees who used an attendance credit from a loss of income due to the absence. The protection against the loss of income is broader than merely the loss of a day’s pay. For example, the payment for a day’s absence would have implications when calculating gross pay for determining vacation pay. If the parties had intended that the use of an attendance credit turned a day of absence into a day worked, it would have been easy enough to express such an intention clearly. Rather than use general language such as “for protection services”, it is more likely that they would have explicitly indicated that the payment for an absence should be considered as time worked. In my view, the absence of clearer language in these circumstances is telling.

The Board in Re Union Grievance, supra, does not provide an interpretation of article 31.8.1 which is different from mine. Indeed, the Board in that case did not indicate that it was attempting to interpret article 31.8.1, nor did it specifically deal with the meaning of the words “for protection purposes”. It seems that what the Board found to be significant in that case is that unclassified employees were paid for certain absences, while Go-Temp employees were not, and it was prepared to accept the Employer’s view as to what payment meant. I note that article 32 of the Collective Agreement, which applies to seasonal employees, also contains an attendance credits and sick leave provision. Article 32.16.1.1 provides that “attendance credits may only be used for income protection purposes …” (emphasis added). The absence of the word “income” in article 31.8.1 may provide arguable support for the Union’s interpretation of this provision, however I do not find this point compelling. There is no reason to believe that the parties intended that the impact of using an attendance credit would be different depending on whether it was used by unclassified employees or seasonal employees. In my view, the use of an attendance credit in both instances provides income protection only.

Without a foundation in the Collective Agreement, the Union is left with a particular practice for calculating continuous service. I agree with the submission of Employer counsel that the way in which the parties treat the use of an attendance credit in the continuous service context is not particularly relevant in the overtime context. A close reading of Re Union Grievance, supra, and particularly Re OPSEU (Lane), supra, discloses that a practice has developed where the hours paid for by the use of an attendance credit are treated as hours worked for purposes of article 18.1. As indicated previously, the Board in Re OPSEU (Lane), supra, noted that the parties did not dispute the practice nor did they dispute the consistency of the practice with the language in article 18.1(b). If one were to consider the meaning of the words “full-time weeks worked” in article 18.1(b), one might very well conclude that an unclassified CO has to actually work forty straight time hours before a week can be added for continuous service purposes. The practice may have developed because of the view that continuity of service does not appear to have been disrupted when an employee has been paid for a full week, even if part of the payment is attributable to the use of an attendance credit. In any event, whatever the reason for its existence, the development of a practice for calculating continuous service does not mean that the practice can or should be applied in other contexts. As the Union argued, there is a value to consistency. In this instance however, the Employer is not prepared to treat hours paid by an attendance credit as hours worked for purposes of article 31.3.1. And as previously noted, I am unable to find in the terms of the Collective Agreement any indication that the parties intended that hours paid by an attendance credit should be treated as hours worked for purposes of article 31.3.1.

For the forgoing reasons, it is my conclusion that attendances credits cannot be used to contribute to the overtime threshold set out in article 31.3.1. With respect to this provision, unclassified employees are required to meet the overtime threshold by actually performing work. The Union can request dates from the Registrar of the Board should it wish to proceed further with these grievances.

Dated at Toronto, this 20th day of March, 2006.