GSB#2009-3110
UNION#2010-0234-0013
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Noble)
Union
- and -
The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)
Employer
BEFORE
Owen V. Gray
Vice-Chair
FOR THE UNION
Alick Ryder Ryder Wright Blair & Holmes LLP Barristers and Solicitors
FOR THE EMPLOYER
Jennifer Richards Ministry of Government Services Legal Services Branch Counsel
HEARING
March 22 and May 19, 2011.
DECISION
1The issue in this proceeding is whether the grievor is entitled to attendance credits for the month of October 2009 under article 31A.8.1 of the parties’ collective agreement. The parties have agreed that my decision will have “precedential value” within the meaning of article 22.16.7. They argued the matter on the basis of agreed facts. For the reasons that follow, I find the grievor was entitled to attendance credits for the month in question.
Facts
2The pertinent language of article 31A.8.1 is this:
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 …
3The parties agree that:
(a) Overtime hours are not part of the calculation of hours under Article 31A.8.1.
(b) The Grievor is an irregularly scheduled Fixed Term Correctional Officer employed at the Vanier Centre for Women (“Vanier”). As an irregularly scheduled fixed term Correctional Officer he works on an on-call, as needed basis. (Agreed Statement of Facts, ¶1)
(c) All Regular Correctional Officers at Vanier work within a compressed work week arrangement. (Agreed Statement of Facts, ¶2)
(d) Irregularly scheduled Fixed Term Correctional Officers at Vanier, such as the Grievor, are scheduled in advance (approximately one to two weeks in advance); however, the schedule is not guaranteed and may be adjusted to meet operational needs at any time. (Agreed Statement of Facts, ¶4)
(e) In each of the five weeks that fell in whole or in part within October 2009 (that is, the weeks commencing Monday, September 28, Monday, October 5, Monday, October 12, Monday, October 19 and Monday October 26, 2009) the grievor worked1 40 non-overtime hours. In the week commencing September 28 he worked 12 hours on each of September 28th, 29th and 30th and 4 hours on October 1st. In the week commencing Monday October 26th he worked 8 hours on each of October 29th and 31st and 12 hours on each of October 30th and November 1st. (Agreed Statement of Facts, ¶4, exhibit 4, and oral agreement that the grievor worked 12 hours on November 1, 2009).
(f) On days that actually fell within October 2009, the grievor worked 152 non-overtime hours. (Agreed Statement of Facts, ¶9)
(g) The Ministry has a “Human Resources Guide” (hereafter referred to as “the Guide”) that has been in effect since at least April 1995. In a section labelled “Appointment (Unclassified Service)”, under Subject heading “Attendance Credits”, the Guide contains these words, among others:
Full Attendance:
A 36¼ hour work week … is interpreted as 145.0 straight-time or non-overtime hours actually worked per calendar month including authorized leaves of absence.
A 40 hour work week … is interpreted as 160.0 straight-time or non-overtime hours actually worked per calendar month including authorized leaves of absence.
A compressed work week agreement [sic] is interpreted as all scheduled straight-time or non-overtime hours in a compressed work week schedule for the calendar month including authorized leaves of absence.
(Agreed Statement of Facts, ¶6, Exhibit 3) The union has been aware of the “Attendance Credits” portion of the Guide since at least July 2005. (Oral agreement)
(h) At Vanier Correctional Centre, all hours worked by fixed term Correctional Officers are entered into attendance, which accumulates monthly attendance hours worked. In accordance with the Guide, those officers who meet the 160 hour threshold are awarded an attendance credit while those under the threshold are not. (Agreed Statement of Facts, ¶7)
(i) From October 2009 until present approximately thirty-five (35) fixed term Correctional Officers at Vanier were not awarded attendance credits and did not grieve.
(j) Prior to the current collective agreement, which was in force in October 2009, other irregularly scheduled fixed term correctional officers at Vanier were denied attendance credits for not reaching 160 hours of straight time work in a calendar month and did not grieve.
(k) Vanier allows the credit to “slotted” fixed term employees with full attendance, pursuant to the third paragraph under the “Full Attendance” section of the aforesaid Guide. If the grievor had been a “slotted” fixed term employee in October 2009, the credit would have been allowed. (Oral agreement)
(l) Grievances by individual employees are the decision of the employee and not OPSEU. (Oral agreement “for purposes of this case”)
The Parties’ Positions
4With reference to the initial “Employees who work … ” criteria in article 31A.8.1, it is common ground that because correctional officers fall within schedule 4.7 of the hours of work schedule, the forty hour per week criterion applies to fixed term correctional officers.
5The union says that the language of article 31A.8.1 that precedes the phrase “shall earn attendance credits” describes the employees who will be eligible for attendance credits if they satisfy the test that follows the phrase. It contends that the “full attendance” test is satisfied if the employee works every hour for which he has been scheduled, as the grievor did. Neither article 31A.8.1, nor the Guide, makes a distinction between irregularly scheduled fixed term employees who actually work 40 hours per week and “slotted” fixed term employees who are employed on the basis that their hours of work per week will normally be 40. Since a “slotted” fixed term employee who worked the hours worked by the grievor in October 2009 would have earned attendance credits for that month, the union submits that the grievor was likewise entitled to those credits.
6The employer says that because the grievor is not employed “on” a compressed work schedule, but only “within such an arrangement,” the reference in the Guide to a compressed work schedule does not apply to him. According to the Board’s decision in OPSEU (Union Grievance) and the Crown in Right of Ontario (Ministry of Correctional Services), 0595/88, March 31, 1989 (Fisher), fixed term irregularly scheduled correctional officers earn attendance credits if they work 40 hours per week in the month and have “full attendance” in the month. The employer contends that this translates into a requirement of 160 hours worked in the month, although it notes that in some months the 160 hours test may be more favourable to an employee than the “40 hours per week in the month” test. It says that because the grievor did not meet the 160 hours test in October 2009, he did not qualify for attendance credits for that month. It argues that interpreting Article 31A.8.1 to require only attendance on dates scheduled would lead to absurd results in the case of irregularly scheduled employees.
7In addition to Union Grievance, supra, in this connection employer counsel referred in argument to OPSEU (Union Grievance et al) and the Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), 2003-0167, January 4, 2007 (Abramsky), OPSEU (Group Grievance, Clapperton et al) and the Crown in Right of Ontario (Ministry of the Solicitor General and Correctional Services), 0140/97, March 16, 1999 (Petryshen), OPSEU (Dan Lane) and the Crown in Right of Ontario (Ministry of Community and Social Services), 1603/95, October 23, 1998 (Gray) and OPSEU (Morton) and the Crown in Right of Ontario (Ministry of Correctional Services), 2520/91, June 16, 1993 (Barrett).
8In the alternative, the employer argues that the union is estopped from claiming that a fixed term correctional officer who works less than 160 hours in a month is entitled to attendance credits for that month. The basis of this argument is that the union’s failure to grieve the way the employer applied the Guide to the employees referred to in paragraph 3 above amounted to a representation that it accepted the interpretation of article 31A.8.1 that the employer set out in the Guide. Acknowledging that there must be detrimental reliance on a representation for estoppel to arise, it submits that I should infer from the circumstances that it relied on that representation in not seeking amendments to the article during the last round of collective bargaining to bring the article into conformity with its view that 160 hours must be worked in the month to qualify for attendance credits.
9In connection with this estoppel argument, employer counsel referred to OPSEU (Brown) and the Crown in Right of Ontario (Ministry of Community and Social Services), 0513/86, August 10, 1988 (Barrett), OPSEU (Union Grievance) and the Crown in Right of Ontario (Ministry of Health and Long-Term Care), 2005-3289, July 23, 2007 (Gray), Re Tembec Inc. and Communications, Energy and Paperworkers Union of Canada, Local 32 (2002), 2002 CanLII 79091 (ON LA), 111 L.AC (4th) 313 (Luborsky), Re National Paper Goods and G.C.I.U, Local 100-M (2001), 2001 CanLII 62116 (ON LA), 102 L.AC. (4th) 32 (Abramsky), Re Insurance Corporation of British Columbia v. Office & Professional Employees International Union, Local 378 (2002), 2002 CanLII 78944 (CA LA), 106 L.AC. (4th) 97 (Hall) , Re Eastern Bakeries Limited and Bakery, Confectionary and Tobacco International Union, Local 446 (2001), 2001 CanLII 62069 (NS LA), 102 L.A.C. (4th) 430 (MacKeigan), OPSEU (LaSalle) and the Crown in Right of Ontario (Royal City Ambulance Services), 0284/98 October 6, 1999 (Petryshen), Re Beatrice Foods Inc. and Retail, Wholesale & Department Store Union, Local 440 (1994), 1994 CanLII 18734 (ON LA), 44 L.A.C. (4th) 59 (MacDowell) and Re Center Manufacturing, Inc and Canadian Auto Workers, Local 222 (1999) L.A.C. (4th) 281 (Knopf).
10In reply, the union says the Guide’s provision that working “all scheduled straight-time or non-overtime hours in a compressed work week schedule for the calendar month” will constitute full attendance is consistent with its interpretation of article 31A.8.1. Its knowledge of the Guide did not give it notice that the 160 hour provision was being applied in a compressed work week context. In the absence of evidence that the actions referred to in paragraph 3 came to the union’s attention, the fact that the union did not grieve those actions cannot be the basis of an estoppel. With reference to the estoppel issue, union counsel referred to Re Hydro Ottawa Ltd. And International Brotherhood of Electrical Workers, Local 636 (2009), 189 L.A.C. (4th) 33 (Weatherill) and Re The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) and Ontario Public Service Employees Union (Carson) (2010), 197 L.A.C. (4th) 206 Herlich).
Analysis and Reasons
11In the Union Grievance award referred to in paragraph [6] above (hereafter referred to as “the Fisher decision”), the Board noted that there could be two sorts of “unclassified” (now, “fixed term”) employee. One type was employed on a contract that provided for “normal hours of work not to exceed …” the normal full time hours of work of the “classified” (now, “regular”) equivalent – here, 40 hours per week. The other type was employed under a contract that provided for “authorized hours of work as required up to …” the classified equivalent – that is, one who could be irregularly scheduled, like the grievor here.
12The issue before the Board in that case was whether and in what circumstances the “hours of work as required” type of unclassified employee would be entitled to attendance credits under a provision similar in all material respects to article 31A.8.1 of the current collective agreement. The Board answered that question this way:2
… The term “work” under 3.8.1 is not defined and it seems logical that it should be interpreted in its common usage so that if a person actually does work 40 hours per week for a calendar month of full attendance, then he qualifies under the paragraph no matter what his contract says. As was eloquently stated by Vice-Chairperson Samuels in Union Grievance 1631/87 at page 6:
Article 3.9 of the collective agreement does not distinguish between unclassified staff who are on “full-time” contracts and those who are on “part-time” contracts. The nature of the employee’s contract is not the determining factor. Rather, it is the actual work pattern of the employee which determines whether or not the OHIP premium must be paid by the Ministry.
Applying the same logic to this case, it does not matter what the employee’s contract says, rather we look at what the employee actually does and if he works 40 hours each week in a month and he has full attendance, then he should be entitled to receive his attendance credit whether or not he is a call-in employee or a full-time employee.
There is, however, a second criteria with respect to entitlement under this clause which is a little more difficult to determine than the requirement to work 40 hours per week. The second component of this provision is that the employee has a calendar month of “full attendance”. Management raised the issue that because these people can refuse to do work, therefore, not even be scheduled for it, it would be difficult for management to determine whether or not a person had full attendance. First of all, from a practical point of view, the question of full attendance will be only be relevant in those situations where a person has already worked 40 hours per week in the full month and therefore, it is unlikely that it would occur very often. Moreover, this I Board has no problem in fashioning a definition of the concept of “full attendance” to simply mean that the employee worked every day that he was asked to unless his refuse was on reasonable grounds. This would mean that an employee could properly refuse work hours and not be denied his attendance credits if the refusal was on reasonable grounds, ie. sickness, death in family or other matters that have been accepted by arbitrators as being reasonable.
Those findings are not challenged by the employer.
13The Fisher decision did not elaborate on precisely how one would know whether an employee had worked “40 hours each week in a month.” It must involve examining every week that can be said to be “in” the month. Except in a non-leap-year February that begins on a Monday, a calendar month will always include either one or two part weeks that overlap the beginning and/or the end of the month. To have worked forty hours per week throughout a particular month, then, an employee would have to have worked 40 hours in each of the weeks that fall entirely within the month and also in any week that overlaps the beginning or the end of the month.
14For purposes of assessing the grievor’s work pattern for October 2009, the first pertinent week is the week commencing Monday, September 28th and ending Sunday, October 4th. He worked 40 straight time hours on Monday through Thursday of that week, but only 4 of those hours fell within October. The last pertinent week is the week that began on Monday, October 26th and ended on Sunday, November 1st. He worked 40 straight time hours on Thursday through Sunday of that week, but only 28 of those hours fell within October. Since the grievor also worked 40 straight time hours in each of the three weeks that fell entirely within October 2009, he clearly “worked 40 hours per week” during the month, even though his hours of work within that month only totalled 152.
15Under Article 31A.8.1 an employee must satisfy two criteria to qualify for attendance credits for a particular calendar month: the employee must have worked 40 hours per week in each week that falls within or overlaps the month, and must have provided “full attendance” during the month. “Full attendance” means what this Board (differently constituted) said it meant in the Fisher decision. That interpretation of those words does not lead to an absurdity when the 40 hours per week criterion must also be satisfied. Satisfying the 40 hour per week criterion will frequently satisfy the full attendance criterion, but it is possible to imagine circumstances in which it would not.3 There is no express “hours worked in the month” requirement, nor is such a requirement a necessary or logical consequence of the requirements actually prescribed by the article. On the language of the article, the grievor was clearly entitled to attendance credits for the month October 2009.
16Turning to the estoppel argument, I have difficulty with the proposition that the Guide was notice to the union that the employer intended to deny attendance credits to someone who satisfied the requirements described in the previous paragraph if they did not also work 160 non-overtime hours in the month.
17It is easy to see that someone could work 160 hours in a month but not work 40 hours in each week that falls within or overlaps the month, so at first blush the Guide’s definition of full attendance appears to be an undertaking to be more generous than the strict requirements of the collective agreement as it was interpreted in the Fisher decision. When only the first 8 hours of a shift are non-overtime hours, accumulating 40 non-overtime hours involves working at least five days. So outside the compressed work week context it would not be obvious that someone could work 40 hours in each week that falls within or overlaps the month without having also worked 160 hours in the month.4
18This case arises in the context of a compressed work week agreement. What is salient about that context, for these purposes, is not whether an employee does or does not have a “slot” in the schedule. What is salient is that in this context an employee can be scheduled to work a shift of more than 8 non-overtime hours, and can therefore accumulate 40 non-overtime hours in less than 5 days. The grievor’s schedule during the five weeks that fell within or overlapped October 2009 illustrate how, in that context, working 40 non-overtime hours in every week that falls within or overlaps a month might not result in working 160 hour in that month.
19Read literally, the Guide’s reference to the compressed work week context is a definition of “compressed work week agreement,” but it is obviously intended as a definition of full attendance in a context governed by such an agreement. The definition is consistent with the Fisher decision. In the circumstances, it could fairly be understood to supersede the 160 hour “definition” in a compressed work week context. In my view, the language of the Guide quoted in paragraph 3 did not give the union clear and unambiguous notice that the employer would also apply its 160 hour test in the compressed work week context.
20In any event, even if the Guide had been notice that the employer intended to apply a 160 hours in the month test in a compressed work week context even if it denied credits to employees who satisfied the 40 hours per week and full attendance tests, there would have been no reason for the union to challenge that intention until it actually led to a result less favourable to a member than the union’s interpretation of the collective agreement.
21Since fixed term employees employed on an “hours of work as required” or “call in” or “irregularly scheduled” basis have no entitlement to work or expectation of working 40 hours in a week, either regularly or at all, it is not surprising that an unspecified number of irregularly scheduled fixed term correctional officers at Vanier did not qualify for attendance credits on an unspecified number of occasions before the current collective agreement was negotiated. The parties’ agreement on this fact (recorded in paragraph 3 above) did not stipulate that this had occurred when, as here, the employee satisfied the 40 hours per week and full attendance requirements of article 31A.8.1 as this decision and the Fisher decision interpreted them. Even if that was the case with respect to some or all of the occasions to which that agreed fact refers, however, the affected employees’ individual decisions not to grieve did not amount to representations by the union that it agreed that a 160 hour test applied in the circumstances of those employees.
22A decision by the union not to grieve such treatment might have amounted to such a representation. The union could not be said to have made such a decision, however, unless it knew that employees who had worked 40 hours in every pertinent week and had worked every shift for which they were scheduled had nevertheless been denied attendance credits in a compressed work week context when they did not also satisfy the 160 hour test. Union knowledge of an employer’s treatment of employees can sometimes be inferred from the surrounding circumstances as it was in some of the cases cited by employer counsel, where arbitrators inferred that unions knew of things that were found to be notorious. The agreed fact recorded in paragraph 3 above is not a sufficient basis for such an inference. The union cannot be presumed omniscient, nor can it be presumed (even in this Ministry) that employees bring every possible basis for complaint to the union’s attention.
23I note, as employer counsel seemed to concede, that the employer’s treatment of other employees with respect to October 2009 or subsequent months as in the agreement recorded in paragraph 3 above, even if it was analogous in all material respects to the treatment of the grievor with respect to October 2009, cannot be the basis of an estoppel that is said to have arisen from union inaction at an earlier time.
24In short, I am not persuaded that the union is estopped from advancing the grievor’s claim, and find that the grievor was entitled to attendance credits under article 31A.8.1 for the month of October 2009. The employer is directed to put the grievor in the position he would have been in had he been allowed such credits at the appropriate time. I remain seised with any issue about the remedial consequences of that direction that the parties are not able to resolve themselves.
Dated at Toronto this 27th day of May 2011.
Footnotes
- The employer treats leaves for holidays, vacations, sickness, bereavement and jury/witness duty as hours actually worked for the purpose of determining full attendance and eligibility for attendance credits under article 31A.8.1: Exhibit 3, and see OPSEU (Union Grievance et al.) and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) 2003-0167 (Abramsky), 2007 CanLII 6887 (ON GSB). In this decision, the words “work,” “works” and “worked” are used in that extended sense.
- Page 4 of the award.
- The employee misses a scheduled shift in circumstances in which he would not be deemed to have worked, but picks up what would otherwise have been an additional overtime shift later in the same week, bringing his hours worked in that week up to 40 non-overtime hours.
- It could occur in a month of less than 30 days, i.e., a February, that did not begin on a Monday, if the 8 hour per day employee worked Monday through Friday in the week that overlapped the beginning of the month, 40 hours in each of the next three weeks and Wednesday through Sunday in the week that overlapped the end of the month. I leave it to another occasion to explore, if necessary, whether that work pattern has ever actually occurred, whether attendance credits were denied when it did and whether the union was ever made aware of such a denial and its circumstances.