GSB#2004-3951, 2005-2684

UNION#2005-0248-0005, 2005-0234-0364

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Sindall/Chmurzynski)

Union

• and -

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

Employer

BEFORE

Ken Petryshen

Vice-Chair

FOR THE UNION

John Brewin Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Suneel Bahal Ministry of Government Services Counsel

HEARING

December 9, 2008.

Decision

1I have before me two grievances, one filed by CO Sindall dated January 29, 2005, and the other filed by CO Chmurzynski dated February 19, 2005. The parties agreed that these grievances raise similar issues and that both grievances are properly before me. At this stage of the proceeding, the parties requested that I answer the following questions which arise from these grievances:

Was the Employer entitled to deny the Grievors the opportunity to work overtime while they were serving their suspensions, or, in the alternative, was the Employer obliged to consider as part of the Grievors’ 160 hours’ suspensions the hours on their scheduled days off that they were denied the right to work as overtime?

2These questions raise issues about the relationship between a suspension and an employee’s entitlement to work overtime. Counsel for the Union advised that there might be other questions that arise from the grievances. The parties entered certain documents on consent and agreed to the facts that follow.

3On January 10, 2005, the Employer suspended Mr. Sindall and Mr. Chmurzynski without pay for 160 hours for their involvement in an incident which occurred in 2004 while they were performing bailiff duties. Each suspension for 160 hours is the equivalent of 20 eight hour shifts. In determining the length of the suspensions, the Employer was and is limited to a maximum of 20 eight hour days. Mr. Sindall and Mr. Chmurzynski regularly worked 12 hour shifts on a pre-scheduled series of shifts. Based on their shift schedules, the Employer directed that the suspension of Mr. Chmurzynski would commence on January 20, 2005, and end on February 16, 2005 (27 days). It directed that Mr. Sindall’s suspension would commence on January 19, 2005, and end on February 21, 2005 (33 days). Each employee missed 13 12-hour scheduled shifts and four hours on the day their suspensions ended (total 160 hours). In an earlier decision, I substituted a ten day suspension for Mr. Sindall’s 160 hour suspension. The parties treated this as a reduction of 80 hours and the Employer compensated Mr. Sindall for his loss of income. I understand that the compensation paid to Mr. Sindall did not include an amount for lost overtime opportunities.

4On December 23, 2004, Mr. G. Commeford, Assistant Deputy Minister, Adult Institutional Services, issued a Memorandum to Regional Directors which directed that employees were generally not entitled to work overtime during suspensions, subject to certain exceptions. The relevant text of the Memorandum reads as follows:

It has recently come to my attention that employees who are being issued disciplinary suspensions are being allowed to work overtime during the period of their suspension. This practice undermines the purpose of removing an employee from payroll for cause for a defined period of time, and should cease immediately.

In addition, in rare cases where employees are allowed to serve their suspension intermittently in order to prevent undue economic hardship, they should not be scheduled for any overtime shifts from the first day of suspension until the suspension has been served.

5Under their shift schedules, Mr. Sindall and Mr. Chmurzynski would have worked a number of shifts during the period defined in their suspensions, interrupted by a number of scheduled days off. Consistent with Mr. Commeford’s Memorandum, Mr. Sindall and Mr. Chmurzynski were advised in their suspension letters that they were not eligible for overtime employment during the period of their suspensions. The Employer included the ban on working overtime on scheduled days off as a component of the discipline.

6During the relevant period, Mr. Sindall worked at the Hamilton-Wentworth Detention Centre and Mr. Chmurzynski worked at the Maplehurst Correctional Complex. There was in place at their respective institutions an agreement between the Employer and the Union under which Mr. Sindall and Mr. Chmurzynski could have claimed the right to work overtime on scheduled days off. Overtime work was available and Mr. Sindall and Mr. Chmurzynski would otherwise have been entitled to the overtime work under the terms of the overtime agreements, if they applied for it. Counsel filed the overtime protocols that were in place at the relevant institutions. These local overtime agreements were developed pursuant to COR8.2.1 of the Collective Agreement, which provides in part that “the Employer agrees to develop methods of distributing overtime at the local workplace that are fair and equitable…” Counsel agreed that the mechanics of how overtime is distributed under the agreements is not relevant for our purposes.

7Counsel referred to section 22 of the Public Service Act (“PSA”), which provides in part as follows:

Suspension during investigation

22. (1) A deputy minister may, pending an investigation, suspend from employment any public servant in his or her ministry for such period as the regulations prescribe, and during any such period of suspension may withhold the salary of the public servant.

Removal from employment

(2) A deputy minister may for cause remove from employment without salary any

public servant in his or her ministry for a period not exceeding one month or such

lesser period as the regulations prescribe.

Power to dismiss

(3) A deputy minister may for cause dismiss from employment in accordance with the regulations any public servant in his or her ministry.

(5) A deputy minister may release from employment any public servant during the first year of employment for failure to meet the requirements of his or her position.

8With reference to the word “month” in Section 22(2), I was directed to section 29 of the Interpretation Act which provides that “ ‘month’ means a calendar month”. The parties agree that the standard application of this restriction is that suspensions are limited to a maximum of 20 eight hour days.

9Simply put, Mr. Chmurzynski and Mr. Sindall were issued suspensions for a specific period based on their work schedules that included a number of regular days off. But for the suspension and the ban on overtime, they would have had the opportunity to work some overtime on their scheduled regular days off in accordance with the relevant local overtime protocol. From the Union’s perspective, Mr. Chmurzynski and Mr. Sindall should not have been deprived of the opportunity to work overtime on their regular days off during the suspension. In the alternative, assuming the Employer can ban overtime during a suspension, the Union claims that any scheduled day off for which they were denied overtime should be counted as a suspension day, thereby reducing the period of the suspensions. The Employer takes issue with these positions. It argues simply that it has the statutory authority to remove Mr. Chmurzynski and Mr. Sindall from employment without salary, and that it exercised that authority properly in this instance.

10In the course of their submissions, counsel referred me to a number of authorities. Counsel for the Union relied on the following decisions: Re Rubbermaid (Canada) LTD. and United Automobile Workers, Local 252 (1978), 1978 CanLII 3485 (ON LA), 21 L.A.C. (2^nd) 432 (Weatherill); Alcan Smelters and Chemicals Ltd. v. Canadian Assn. of Smelters & Allied Workers, Local 1, [1993] B.C.C.A.A.A. No. 20 (Hope); and, OPSEU (Boucher) and Ministry of Correctional Services (1983), GSB No. 465/81 & 76/82 (Verity). Counsel for the Employer referred me to the Shorter Oxford English Dictionary definition of “remove” and “removal” and to a number of sections in Chapter 6 of Sullivan on the Construction of Statutes, Fifth Edition. In addition, counsel relied on the following decisions: Re Lever Detergents Ltd. and International Chemical Workers, Local 32 (1979), 1979 CanLII 3902 (ON HCJDC), 23 L.A.C. (2^nd) 145 (Weatherill); Re National Edible Oils and U.F.C.W., Local 208 (1986), 1986 CanLII 6718 (ON LA), 23 L.A.C. (3d) 203 (Solomatenko); Rimmer v. Ministry of Government Services (1975), Grievance No. 865/75 (Presgrave); and, OPSEU (Gilles et al.) and Ministry of Community Safety and Correctional Services (2008), GSB No. 2003-1520 et al. (Abramsky).

11Counsel for the Union acknowledged that, in general, an employer could include depriving an employee of the opportunity to work overtime as part of a disciplinary response. This proposition is supported by Alcan Smelters, supra, and Re National Edible Oils, supra. These cases dealt with circumstances in which the days of a suspension were interrupted by scheduled days off, thereby depriving the grievors of overtime opportunities that would normally have been available to them. In response to a submission that it was contrary to the collective agreement to deprive the grievors of an overtime opportunity, the arbitrators found that no such violation occurred because the loss of an overtime opportunity is a consequence of being suspended. Counsel for the Union also recognized that the statutory power in section 22(2) of the PSA to suspend an employee for cause for no more than one month could permit the Employer to remove an employee from employment in a way that prohibited the employee from working overtime during the suspension. However, counsel argued for essentially two reasons that Mr. Chmurzynski and Mr. Sindall were entitled to work overtime during their suspensions. Firstly, counsel submitted that the Employer cannot unilaterally ban overtime during a suspension because of the overtime protocols. He noted that the overtime protocols are local agreements which specifically set out when an employee can work overtime and that there is no provision in the relevant protocols which takes away entitlement to work overtime during a suspension. Counsel submitted that it is a violation of the relevant overtime protocols to ban overtime work during a suspension. Secondly, counsel referred to the policy of limiting a suspension to a maximum of 20 eight hour days in order to comply with the restriction in section 22(2) of the PSA. Counsel submitted that having set this standard, the Employer cannot then ban an employee from working hours that are in excess of the standard, which he suggests is what the ban on overtime does. Counsel also submitted that by preventing an employee from working beyond the standard constitutes a double penalty.

12After carefully considering these thoughtful submissions, I find that I must reject them. I agree with counsel for the Employer’s submission that depriving an employee from the opportunity to work overtime while on suspension is not a violation of the overtime protocols. The relevant overtime protocols do not contain a provision which permits working overtime during a period of suspension. The protocols do set out a regime for distributing overtime in a fair manner but are silent on the issue of performing overtime work while on suspension. It is not surprising that the overtime protocols are silent on this issue given that they are based on and presume an active employment relationship. Absent a specific agreement by the parties permitting an employee to work during a suspension, whether in the overtime protocols or elsewhere, the Employer can exercise its statutory power to remove an employee from employment without salary for a month or less. A removal from employment means losing the benefit of the overtime protocols. Since there is nothing in the overtime protocols or elsewhere which precludes the Employer from banning overtime during a suspension, the Employer had the management right to remove Mr. Chmurzynski and Mr. Sindall from employment and in doing so, it did not contravene the relevant overtime protocols.

13I also disagree with the submission that a penalty which includes a ban on overtime is not permissible because it either exceeds the standard of 20 eight hour days or constitutes a double penalty. Just as any suspension will be based on a number of scheduled days or scheduled hours, the standard of 20 eight hour days is used as a maximum of scheduled days to determine the period of the suspension. The use of this standard to determine the period of the suspension does not limit the Employer’s statutory authority to remove an employee from employment without pay for the duration of the suspension, which includes a ban on working overtime. In this instance, the Employer suspended Mr. Chmurzynski and Mr. Sindall for a defined period and at the same time indicated that they would not be permitted to work overtime. The Employer imposed one penalty by indicating, in effect, that each employee would not be allowed to perform any work during the period of suspension. Even if one were to consider the ban on working overtime as an additional penalty, it is not a double penalty. The number of hours of the suspension and the ban on working overtime were imposed at the same time, not at different times.

14If the Union’s position were accepted, an employee could be assigned overtime work on regular days off during a suspension at premium rates in accordance with an overtime protocol. There is merit to counsel for the Employer’s submission that such a result is inconsistent with the purpose of a suspension and the statutory power found in section 22(2) of the PSA. The result is also inconsistent with the general concept of a suspension which is recognized as period during which employment is suspended.

15I also agree with the Employer’s position that it has no obligation to treat a day for which an employee could have worked overtime during the suspension as one of the days of the suspension, thereby shortening the period of suspension. Counsel for the Union argued that if the discipline included the days of lost overtime work, then at least those days should be treated as part of the discipline. As noted previously, the periods of suspension in the instant case included a number of regular days off and, but for the suspensions, Mr. Chmurzynski and Mr. Sindall would have had the opportunity to work overtime on at least some of those days. In my view, it would be inconsistent to credit an employee with a suspension day served when an overtime opportunity is notionally lost during a suspension. As indicated previously, a suspension entails a removal from employment without pay and there is no opportunity to work overtime on regular days off during a suspension. Crediting an employee with a suspension day for a lost overtime day would constitute treating the employee as if he had not been removed from employment during the suspension. A ban on overtime means just that, a ban on overtime. It would be inconsistent and inappropriate to find that an employee was not entitled to work overtime because the employee had been removed from employment and then to credit the employee with a day of suspension because he or she was deprived of working the overtime.

16In one sense, of course, the Employer is obliged to take into account economic consequences when it imposes discipline. It is always open to the Union to argue when the issue of penalty is before the adjudicator that a particular penalty is excessive in all of the circumstances because the penalty included the loss of significant overtime work.

17In accordance with the foregoing, I would answer the questions as follows:

1. The Employer was entitled to deny Mr. Chmurzynski and Mr. Sindall the opportunity to work overtime while they were serving their suspensions.

2. The Employer was not obliged to consider the hours on their scheduled days off that they were denied the right to work overtime as part of the 160 hours’suspensions.