GSB#2007-1773
UNION#2007-0526-0016
Additional Files – Appendix ‘A’
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (McGann et al.)
Union
- and -
The Crown in Right of Ontario (Ministry of Attorney General)
Employer
BEFORE
Owen V. Gray
Vice-Chair
FOR THE UNION
Anastasios Zafiriadis Ontario Public Service Employees Union Grievance Officer
FOR THE EMPLOYER
Len Hatzis Ministry of Government Services Counsel
HEARING
June 2, 2009.
DECISION
1These proceedings concern a number of grievances that raise issues concerning Appendix 32 to the 2005-2008 collective agreement and subsequent agreements that amended Appendix 32, including an agreement dated September 13, 2007. The parties have endeavoured to identify questions of general application raised in these grievances, with the intention of having each such question heard and determined in the context of a specific grievance or grievances on agreed or at least undisputed facts, and without the necessity of witnesses.
2The questions posed at the hearing of June 2, 2009 were these:
In and of itself, would FPT staff incurring deficit hours violate the Collective Agreement, the MoS dated September 13, 2007, or any applicable MoA?
Is it a violation of the Collective Agreement or the MoS dated September 13, 2007, if the deficit hours incurred result, in part, from the use STSP credits on a day scheduled to work?
3The illustrative grievance was that of Deborah Duvall in GSB#2008-1796. These were the union’s particulars of that grievance:
Ms Duvall’s schedule for the week of June 16, 2008 required her to work four out of five days, Monday and Tuesday June 16 and 17, and then Thursday and Friday June 19 and 20.
Concerned about meeting her minimum weekly hour total of 28.75, Ms Duvall spoke to her supervisor Gerri Wyatt on Friday June 13, 2008. She requested an explanation for why, when she was only scheduled for four days, a number of unclassified clerks were scheduled to work five days. Ms Wyatt assured Ms Duvall that most FPT clerks scheduled to work four days met their minimum hour requirement and told her that the employer had no obligation to schedule FPT clerks instead of unclassified clerks.
On Monday June 16, Ms Duvall was sick and, therefore, paid and credited for the minimum daily hour total of 5.74 hours. On Tuesday June 17, Ms Duvall was asked by an unclassified clerk colleague to switch shifts with her, and to work on Wednesday June 18. This arrangement would have allowed Ms Duvall to work five days that week (including her sick day on June 16) and to reach her minimum target without problem. Ms Wyatt refused to authorize the switch unless Ms Duvall agreed to give up one of her other scheduled work days on Thursday or Friday June 19 or 20. No explanation was given for this requirement. Ms Duvall refused to agree and worked her originally scheduled days.
At 5:00 pm on Friday June 20, the court in which Ms Duvall worked finished for the day. At that time, she calculated that she was in deficit 1.25 hours with respect to her weekly minimum hours of 28.74 [sic]. She went to the Court Support Office to ask about work to make up her hours, but, it being 5:00 on a Friday, all staff had left. Ms Duvall emailed Ms Wyatt about her circumstances and was told that the deficit was a result of her sick day and unforeseeable.
Remedy: 1.25 hours credit to eliminate the deficit
It appears from an email message sent by the grievor shortly after the events in question (and produced by the employer in accordance with a consent order requiring a pre-hearing exchange of particulars and documents in these matters) that the “switch” proposed on June 17, 2008, was that the grievor work a Wednesday shift that an unclassified employee (who had been scheduled to work every day that week) wanted to take off. With that clarification, the facts alleged are essentially undisputed.
4Appendix 32 established the terms and conditions of employment for “flexible part-time” (or “FPT”) classified employment for employees who work primarily in courtrooms, where hours of available work vary from day to day. Unlike Regular Part-time employees, Flexible Part-time employees do not have “regularly scheduled” hours of work each day or each week. They do, however, have a defined minimum number of hours per calendar year. The grievor’s annual minimum in 2008 was 1500 hours.
5FPT workers also have minimum bi-weekly pay, which is based on a weekly equivalent of the minimum annual hours. That weekly equivalent is referred to in the minimum pay provisions of the agreement of September 13, 2007 as the “minimum weekly hours.” If an FPT employee works or is credited with fewer than the “minimum weekly hours” in a week, she will be paid for that week as though she had worked the “minimum weekly hours.” The hours “deficit” to which the grievance refers is the difference between the “minimum weekly hours” on which her pay for that week would have been based and the somewhat lower number of hours that the grievor actually worked or was credited that week.
6In and after 2008, FPT employees who worked more than the “minimum weekly hours” in a week were paid for those extra hours on a current basis.1 The parties agree, however, that when there is an hours “deficit” in a particular week, the employer cannot recover the resulting pay surplus on the next occasion when there are extra hours for which the employee would otherwise be paid: it has to wait until the next calendar year before it can do that. Thus, it would seem to be in the employer’s interest to avoid an hours deficit of this sort.
7When the grievor’s supervisor initially scheduled the grievor for the week in question, she evidently thought it likely that the grievor would end up having worked the minimum weekly hours over the course of the four days for which she scheduled her. The grievor’s illness in Monday was unforeseen at that point. When an FPT employee is sick on a day for which she was scheduled, however, she is credited a standard number of hours unrelated to what she might actually have worked on the day had she not been sick. For a Category 2 (1500 annual hours) FPT employee like the grievor, the credit is 5.74 hours. In light of that, on the day after the absence – when the opportunity arose to schedule the grievor for an additional day that week – it was probable (although not certain) that the grievor might otherwise have an hours deficit at the end of the week. In the circumstances, the grievor was understandably perplexed that the supervisor did not do what would have appeared to be in the employer’s own best interest as well as her own.
8The legal issue raised by the grievance was not whether the supervisor acted in the employer’s best interest in the circumstances, however. The issue was whether her conduct breached any obligation that the employer owed to the grievor.
9The use of the phrase “minimum weekly hours” in defining the minimum pay entitlement does not imply or create an obligation to ensure that an FPT employee is scheduled for or works or has the opportunity to work and/or be credited with at least that many hours in each and every week of her FPT employment. The employer’s scheduling obligation is defined (in paragraph 5(j) of the agreement of September 13, 2007) in terms of the outcome of scheduling over the course of a calendar year:
The employer will make reasonable efforts subject to operational feasibility to ensure employees are scheduled to work the minimum annual hours for their category. Where an employee does not work his/her minimum annual hours threshold, his/her deficit hours will be carried over to the next calendar year for recovery. Deficit hours will be recovered from any hours worked above the employee’s weekly threshold and before any hours in excess of the weekly minimum hours are paid.
Particularly in the context created by the second sentence, it is apparent that the focus of the first sentence is on the number of hours scheduled and worked or credited over the course of a calendar year, not on the equivalents at the weekly and daily level that are used to calculate minimum weekly pay and sick leave credits.
10It is in the nature of this kind of employment that hours actually worked or credited may vary from week to week. A schedule in which weekly hours vary, but over the course of a year add up to the defined annual minimum, may be expected to consist of some weeks in which the hours are more than the weekly equivalent of the annual minimum and some weeks in which hours are less than the weekly equivalent of the annual minimum.
11When Ms. Duvall filed her grievance in July 2008 the calendar year’s end was months away. There is no suggestion that the decision complained of created any substantial risk that by the end of the calendar year the grievor’s total hours for the year would have been would be less than the minimum annual hours for her category. The union conceded at the hearing that the employer conduct alleged in the grievance particulars did not breach either paragraph 5(j) of the agreement of September 13, 2007, or any other agreement by which the employer was then bound. It necessarily followed that there was no case for the employer to meet. I so ruled, and dismissed the grievance orally.
12The answer to the general questions recited in paragraph [2] above was “no” in the circumstances alleged in the illustrative grievance. It is not possible to say that the answer to each question would always be “no” regardless of the circumstances in which the question arises. There may be circumstances in which an employee’s working or being credited with less than the “minimum weekly” hours for a week is the result of employer conduct inconsistent with the obligation created by the first sentence of paragraph 5(j) of the agreement of September 13, 2007. Put another way, the pertinent question is ultimately not whether there is a “deficit” in any particular week, but whether the employer is making or has made reasonable efforts, subject to operational feasibility, to ensure that the employee is scheduled to work the minimum annual hours for her category.
Dated at Toronto this 5th day of June, 2009.
Appendix ‘A’
GSB#
Union#
Grievor
2007-1682
2007-0228-0050
Jolicoeur, Brenda
2007-1773
2007-0526-0016
McGann, Dag
2007-2463
2007-0212-0026
Cho, Kellen
2007-3133
2007-0119-0016
Gibbon, Linda
2007-3248
2007-0228-0055
Caschera, Jessica
2007-3366
2008-0205-0002
Wilson, Jeffrey
2007-3367
2008-0205-0003
Wilson, Jeffrey
2007-3368
2008-0205-0011
Wilson, Jeffrey
2007-3370
2008-0205-0013
Wilson, Jeffrey
2007-3371
2008-0205-0014
Wilson, Jeffrey
2007-3372
2008-0205-0015
Wilson, Jeffrey
2007-3373
2008-0205-0016
Wilson, Jeffrey
2007-3374
2008-0205-0017
Wilson, Jeffrey
2007-3375
2008-0205-0018
Wilson, Jeffrey
2007-3377
2008-0205-0020
Wilson, Jeffrey
2007-3378
2008-0205-0004
Antoniak, Stephanie
2007-3379
2008-0205-0005
Kiss, Juliana
2007-3380
2008-0205-0006
Iacobucci, Anna
2007-3381
2008-0205-0007
Terpou, Beverly
2007-3382
2008-0205-0008
Iarusso, Terri
2007-3383
2008-0205-0009
Young, Elaine
2007-3729
2007-0212-0029
Hollingsworth, Marlene
2007-3733
2008-0212-0001
Dolan, Krystyne
2007-3734
2008-0212-0002
Marceau, Heather
2007-3735
2008-0212-0003
Hollingsworth, Marlene
2007-3736
2008-0212-0004
Hollingsworth, Marlene
2007-3737
2008-0212-0005
Hollingsworth, Marlene
2007-3738
2008-0212-0006
Hollingsworth, Marlene
2007-3824
2008-0453-0002
Markell, Lynn
2007-4035
2007-0526-0029
Schacherl, Susette
2007-4036
2007-0526-0030
Giannopoulos, Tina
2007-4037
2007-0526-0031
Thakurdin, Annie
2007-4038
2007-0526-0032
Caguioa, Petronila
2007-4039
2007-0526-0033
Boyes, Chuck
2007-4040
2007-0526-0034
Janu, Ivana
2008-0015
2008-0205-0027
Wilson, Jeffrey
2008-0016
2008-0205-0028
Wilson, Jeffrey
2008-0017
2008-0205-0029
Wilson, Jeffrey
2008-0018
2008-0205-0030
Wilson, Jeffrey
2008-0019
2008-0205-0031
Wilson, Jeffrey
2008-0020
2008-0205-0032
Wilson, Jeffrey
2008-0021
2008-0205-0033
Wilson, Jeffrey
2008-0022
2008-0205-0034
Wilson, Jeffrey
2008-0193
2008-0212-0012
Hollingsworth, Marlene
2008-0194
2008-0212-0013
Hollingsworth, Marlene
2008-0197
2008-0212-0016
Marceau, Heather
2008-0198
2008-0212-0017
Motiak, Ginette
2008-0201
2008-0228-0011
Gautier, Janet
2008-0280
2008-0212-0018
Hollingsworth, Marlene
2008-0402
2008-0526-0003
Nosova, Larissa
2008-0744
2008-0212-0019
Motiak, Ginette
2008-0745
2008-0212-0020
Royer, Raymond
2008-0746
2008-0601-0002
Chenier-Tulonen, Denise
2008-0795
2008-0212-0021
Hollingsworth, Marlene
2008-0796
2008-0212-0022
Hollingsworth, Marlene
2008-0797
2008-0212-0023
Humphries, Tammy
2008-0803
2008-0228-0020
Amador, Deborah
2008-0880
2008-0205-0040
Wilson, Jeffrey
2008-0955
2008-0205-0085
Wilson, Jeffrey
2008-0956
2008-0205-0086
Wilson, Jeffrey
2008-1464
2008-0212-0025
Hollingsworth, Marlene
2008-1702
2008-0205-0088
Campell, Laurel Elaine
2008-1796
2008-0310-0007
Duvall, Deborah
2008-2094
2008-0526-0012
Lam, Maria
2008-2398
2008-0212-0030
Hollingsworth, Marlene
2008-2399
2008-0212-0031
Hollingsworth, Marlene
2008-2602
2008-0710-0001
McKinnon, Trudy
2008-2603
2008-0710-0002
McKinnon, Trudy
2008-2688
2008-0212-0032
Hollingsworth, Marlene
2008-2689
2008-0212-0033
Hollingsworth, Marlene
2008-2966
2008-0212-0034
Hollingsworth, Marlene
2008-2967
2008-0212-0035
Hollingsworth, Marlene
2008-2969
2008-0405-0002
Hunt, Julie
2008-3497
2009-0205-0001
Lazarowich, Lorry
2008-3498
2009-0405-0002
Thompson, Lynn
Footnotes
- Hours worked in a week in excess of the minimum weekly hours, up to 36.25 hours, are paid at straight time with the bi-weekly pay for that week. Hours worked in excess of 36.25 in a week are paid at the overtime rate (time and one half) within two months of the pay period in which the hours are worked.