GSB#2011-2308
UNION#11-38
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Canadian Union of Public Employees - Local 1750 (Policy)
Union
- and -
The Crown in Right of Ontario (Workplace Safety and Insurance Board)
Employer
BEFORE
Daniel Harris
Vice-Chair
FOR THE UNION
Jim Morrison Canadian Union of Public Employees – Local 1750 National Staff Representative
FOR THE EMPLOYER
Gurjit Brar Workplace Safety and Insurance Board Counsel
HEARING
June 22, 2012.
Decision
1This is an individual grievance heard on June 22, 2012 pursuant to the Board’s Decision of January 20, 2012 (attached as Appendix “A”). Accordingly, it has no general precedential value. As noted in that decision, there is also a policy grievance related to scheduling. These individual decisions deal with alleged human rights violations. The grievances remain part of the policy grievance.
2All of these grievances arise out of changes to the collective agreement from the last round of bargaining. Those changes included the elimination of the option of compressing the work day by working through lunch hours and breaks, the elimination of eighteen sick days, of which up to three days could be used as personal days, the introduction of nine wellness days, which may be taken as whole or part days as the employee sees fit and modifications to the flex-time provisions to allow for four flex-time options.
3This grievance arises out of the Employer’s decision to impose a general rule that operational staff must commence work no earlier than 7:30 a.m. Its decision and the rationale for it are set out in a memorandum to operations staff dated September 27, 2011, which reads as follows:
Since 2008, the WSIB has demonstrated a stronger and sharper focus on understanding and delivering what really matters to customers, built on the principle that reintegration into the workplace is the best outcome. Understanding this also means rigour and discipline in our approach – to deliver fair benefits and services that are cost-effective and achieve the best possible outcomes for workers and employers.
In order to improve our availability for customer contact, we have decided that, as a general rule, staff should commence work no earlier than 7:30 a.m. Exceptions will be considered if the unique job function or circumstance requires the employee to start earlier than 7:30 a.m.
The main reason for this decision is that, to ensure success, our business model and approach to case management has changed significantly. The New Service Delivery Model, with its focus on early and regular contact with workers and employers has created “talking jobs”. The prior approach, which focused more on the gathering of paper documents has been replaced by significant interpersonal contact and worksite interventions. This enables us to better execute on our goals of return to work, recovery and service excellence. In addition, we have created greater specialization which has increased the need to interact with one another more than ever before.
To be successful, we need to optimize our availability to customers and to one another. We continue to see service gaps with respect to our availability to clients. This has been noted by both employers and workers. The new requirement on start time will help us achieve our customer service objectives.
Thank you for your support and cooperation.
4Pursuant to article 25.02(b), the Employer established a process by which employees were able to choose a flex-time option. By extending their working day employees accumulate sufficient hours to permit them to take other days off work. The following represents the available options:
Flex Work Arrangement Extend Work Time
4 days to attain the 5th day off work 1 hour, 47 minutes
9 days to attain the 10th day off work 47 minutes
14 days to bank 1 day as vacation time 30 minutes
19 days to bank 1 day as vacation time 22 minutes
5This matter claims that the Employer’s rule discriminates against the grievor on the ground of disability, contrary to the Ontario Human Rights Code. The grievor seeks accommodation in the form of being permitted to start work at 7:00 a.m. rather than 7:30 a.m.
The Grievor’s Circumstances
6The grievor, Ms. G. is a long-term employee who worked a 7:00 am to 3:00 pm schedule for twenty years. For the last five years she has participated in a flex schedule that saw her working from 7:00 to 3:15 pm. She described herself as an early riser and said she is more productive in the mornings.
7The grievor’s circumstances are set out in paragraph 15 of her statement of facts as follows:
The reason I requested 7:00 am to 3:15 pm because I live in Alliston which took me 1.45 hours one way. I am a mature female who can’t afford to live in Toronto. I lost my husband in 2004. I have only been driving since 2001. I hit a deer in July 2010. I have had to put down my 2 animals in 2006 and 2011. I suffered a work related injury in 2001 and was off work from Feb/02 to July/03 due to my wrists and developed major depression. I still have sporatic times when I try to deal with things that are happening in my life. With my new hours, I now leave home in the dark and return in the dark. This is further stressing me out. I continue to go to EAP to help me get through things.
8The grievor also testified that there were other situations affecting her that she was not willing to disclose.
9The grievor lives in Alliston, Ontario and commutes to work by driving to Wilson Heights subway station. She does not drive on Highway 400, which lengthens her travel time. She said that travel in the morning is not a problem, but that it is the evening commute that causes difficulty. She does not arrive home until 6:00 to 6:30 pm. Because she opted for the 15 over 14 flex schedule, she works from 7:30 am to 4:00 pm. She agreed she could work from 7:30 am to 3:30 pm but she likes the extra day off every fifteenth day. There is no evidence that the longer day and later departure has exacerbated the grievor’s depression. When asked if she was discriminated against, she replied, “Not personally.” She does think it unfair that operational staff may not start prior to 7:30 am, while other employees may do so.
10The grievor described herself as a morning person. She sees no reason why she could not start earlier because an early start had never before interfered with getting her work done. However, that is not the test. The Employer has the right to set the schedule and to assess the requirements of the business. It is not obliged to cater to the schedule preferences of its employees.
11The grievor has chosen to live in Alliston, Ontario, a significant distance from downtown Toronto where the workplace is located. She has also elected to work a flex schedule, which extends her work day. She said she prefers to have the extra day off every fifteenth day. Those choices are hers to make at the cost of accepting the consequences they bring.
12There is no discriminatory effect, this aspect of the grievance is dismissed. It remains part of the policy grievance.
Dated at Toronto this 23rd day of July 2012.
APPENDIX “A”
GSB#2011-2308
UNION#11-38
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Canadian Union of Public Employees - Local 1750 (Union)
Union
- and -
The Crown in Right of Ontario (Workplace Safety and Insurance Board)
Employer
BEFORE
Daniel Harris
Vice-Chair
FOR THE UNION
Jim Morrison Canadian Union of Public Employees - Local 1750 National Staff Representative
FOR THE EMPLOYER
Michael Smyth Heenan Blaikie LLP Counsel
HEARING
December 19, 2011.
Decision
1This is a Union grievance which takes issue with the implementation of the flex-time language of the collective agreement. It came on for hearing on December 19, 2011. At that time the parties entered into discussions regarding the management of this case as well as the individual grievances that have arisen related to the implementation of the flex-time language.
2First, it was agreed that I would take jurisdiction over the individual grievances. At present there are some 147 such grievances. The following is the process by which these cases will be heard.
3Any individual grievance relating to flex-time will initially go to a first step meeting in the normal course. That will permit an exchange of views on the subject and provide for the identification of any grievances that are related to the flex-time issue.
4If the grievance is not resolved at the first step, it will be referred to the GSB to be heard by me. The parties will identify the grievance as such so that GSB staff can make the necessary arrangements. If the parties agree that the issues in any particular grievance are entirely encompassed by the issues in the policy grievance, they will refer the grievance to the GSB to be held in abeyance pending the outcome of the policy grievance. Absent such agreement, if the matter comes before me and I determine that the issues are entirely encompassed by the policy grievance, I will adjourn it pending the outcome of the policy grievance. Where a matter contains individual and policy issues, the individual issues will go forward as set out below.
5All individual issues relating to the implementation of the flex-time language will be heard where practicable, at the work location of the grievor. It is to be expected that more than one grievance will be heard in a day, and the parties should be prepared to hear as many in a row as is possible.
6No later than two weeks prior to the hearing, the Union will provide to the employer a will-say statement from the grievor, and any other witnesses, along with any documents upon which it will rely.
7At the hearing, the Employer may cross-examine the maker(s) of the will-say statements and provide any viva voce evidence it requires. The parties will have the right to redirect examination of its witnesses and cross-examination of the opposite party's witnesses. Both parties will be able to make brief submissions.
8The Decisions of the Board may be oral or written as is appropriate. There will be internal consistency in the Decisions, but there will be no general precedential value beyond the group of individual grievances.
9Any concerns or modifications to the process may be addressed by teleconference call.
10The policy grievance will continue to be heard in parallel proceedings. We will schedule five days at this juncture. One single day followed by successive two-day blocks. Those dates will be scheduled through the GSB staff, as will any dates set for the hearing of the individual grievances. The parties will be responsible for arranging suitable hearing space where the matters are heard on location.
Dated at Toronto this 20th day of January 2012.