GSB#2009-3256
UNION# 2010-0411-0002
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Cooper)
Union
- and -
The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)
Employer
BEFORE
Felicity D. Briggs
Vice-Chair
FOR THE UNION
Scott Andrews Ontario Public Service Employees Union Grievance Officer
FOR THE EMPLOYER
Bart Nowak Ministry of Government Services Employee Relations Division Employee Relations Advisor
HEARING
October 5, 2010.
Decision
1The Employer and the Union at the Ottawa Carleton Detention Centre agreed to participate in the Expedited Mediation-Arbitration process in accordance with the negotiated Protocol. Most of the grievances were settled through that process. However, a few remained unresolved and therefore require a decision from this Board. The Protocol provides that decisions will be issued within a relatively short period of time after the actual mediation sessions. Usually these decisions are without reasons. However, in this situation some facts and rationale are necessary. Further, the decision is to be without prejudice and precedent.
2Mr. John Cooper is a Correctional Officer who filed a grievance dated January 7, 2010 alleging improper compensation for the Labour Day Holiday he worked on Monday September 7, 2009. Specifically he did not receive any compensating time off.
3Mr. Cooper worked the shift prior to the holiday, Labour Day itself and on September 8, 2009 he worked eight hours. The grievor had originally been scheduled to work twelve hours on September 8, 2009. However, as a result of an earlier request that was approved in advance by the Employer for four hours of vacation time, he worked for eight hours on the Tuesday.
4It was the Union's position that according to Article COR 13.4, language that virtually mirrors the provisions of the Employment Standards Act, the grievor worked his regularly scheduled shift before and after the holiday and accordingly he is entitled to holiday pay.
5It was the Employer's position that the grievor did not work his "regularly scheduled shift" following the holiday. It was asserted that his "regularly scheduled shift" was to be a twelve hour day and because he only worked eight hours with four hours of vacation time, he did not work his regularly scheduled shift. In the Employer's view, the failure to work twelve hours on that Tuesday meant that his next "regularly scheduled shift" was September 17, 2009 and he was absent due to illness on that day.
6Additionally, the Employer contended that the grievance should be dismissed as it was not processed through the grievance procedure in a timely fashion. While this objection had not been raised prior to the med/arb, it was the Employer's view that too much time had intervened between the Labour Day weekend and January 7, 2010 when the grievance was filed.
7The grievor indicated that he did not realize that he had not been properly paid until after he reviewed his pay stub. Once he found the discrepancy he had some preliminary discussions to determine if an error had been made. Shortly thereafter he engaged in ongoing email conversations with a variety of different Employer representatives in an effort to resolve the issue. This Board was provided with those emails. He was provided with a definitive response from the Employer on January 4, 2010. The grievance was filed a few days later.
8After a review of the emails provided by the grievor I have no hesitation in finding that this grievance is not out of time. There was ongoing written communication between the grievor and various Employer representatives. The first of ten emails was dated November 4, 2009 and it referred to earlier verbal conversations he had in this regard. It appears as if Mr. Cooper actually thought the Employer had made an error and he was hoping to "clarify this matter". When he was definitively told on January 4, 2010 that he "did not qualify for COR 13.2" Mr. Cooper filed the written grievance.
9It appears that this dispute is about the meaning of "regularly scheduled shift" as that phrase is found at COR 13.4. The Employer takes the position that the grievor's regularly scheduled shift for September 8, 2009 was a twelve-hour shift and because he failed to work twelve hours it should not be considered. Therefore, it is appropriate to consider September 17th as the grievor's next "regularly scheduled shift". The grievor was absent from work due to illness that day and accordingly he failed to work his regularly scheduled shift and therefore is not entitled to compensation time off.
10I disagree. The grievor may originally have been booked to work twelve hours on September 8, 2009. There was no dispute that absent his approved vacation request he would have worked twelve hours on that day. However, he requested vacation time for a portion of that work day and as I understand the facts, his request was granted. Accordingly he was scheduled for and worked eight hours on Tuesday September 8, 2009. Therefore, I am of the view that his "regularly scheduled shift" after the Labour Day holiday was the eight hour shift he was scheduled for and worked on Tuesday September 8, 2009.
11The Employer suggested that because a portion of Tuesday September 8, 2009 was paid for but not worked, it was not a "regularly scheduled shift". It was suggested this day was akin to a bereavement leave. That is to say, if the grievor had been on a bereavement leave, he would have been paid but not actually worked his regularly scheduled shift. Therefore, his next regularly scheduled shift would have been September 17, 2009.
12I do not think the facts before me are analogous to a bereavement leave. After having four hours of vacation time approved, the grievor was scheduled for and worked eight hours on September 8, 2009. The day is not "skipped over" because part of it was vacation time. He was scheduled to work for eight hours and he did work all of the hours that he was expected to work. That eight hour shift on the Tuesday was his "regularly scheduled shift".
13The grievance is upheld. I remain seized.
Dated at Toronto this 13th day of October 2010.