GSB#2010-1599, 2012-0714

UNION#2010-0122-0012, 2011-0122-0018

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Ridsdale)

Union

• and -

The Crown in Right of Ontario (Ministry of Children and Youth Services)

Employer

BEFORE

Randi H. Abramsky

Vice-Chair

FOR THE UNION

Tim Mulhall Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Karen Martin Ministry of Government Services Centre for Employee Relations Employee Relations Advisor

HEARING

May 9, 2012.

Decision

1This matter was presented pursuant to Article 22.16.7 under which decisions “have no precedential value.” Both parties, and the grievor, were given a full opportunity to provide relevant facts and argue their positions.

2The grievance alleges that the grievor, a Recreation Officer, is owed four hours of overtime on each of two occasions when he worked an 8-hour shift and a Youth Service Officer (not recreation trained) was given a 12-hour shift. On both occasions, there was an unplanned absence that led to the available 12 –hour shift and the grievor was already scheduled to work an 8-hour shift. It was the Union’s position that the Employer should have offered the extra four hours to the grievor and its failure to do so violated the Recreation Officer Overtime Protocol at the time and/or the parties’ practice.

3The Recreation Department Overtime Protocol states that “[o]ff duty Recreation Officers with the most seniority will be called first on occasions when a full shift is to be offered to a recreation officer under this protocol.” On the days in question, the grievor was already scheduled and, therefore, arguably was not off-duty for the dates in question. The Union asserts, however, that the words “off duty” include the extra four hours in regard to the grievor’s 8-hour shift, and that this was the practice. This was denied by the Employer. The Employer’s witnesses asserted that the grievor was not off-duty on those dates, and it did not split shifts except as a last resort in an “emergency-type” situation in order to provide recreation programs to youth offenders.

4In terms of practice, the grievor stated that he was offered such extra hours on numerous times, but that the practice was “off and on.” He also asserted that on a number of occasions in the past when this did not happen and he complained, he was paid the overtime as a remedy. The Employer was not aware of any such complaints or payments, but acknowledged that it was possible that occurred at the Step 1 grievance level.

5The onus is on the Union to establish that the Employer breached its obligations under the collective agreement. Based on the evidence presented, the Union did not meet its onus. The Protocol itself is unclear regarding the meaning of “off duty” in terms of assigning a full shift. The general understanding of that would be an officer who was not scheduled to work that day. Its possible that it was given a broader meaning by the parties, but the evidence was divergent. Even under the grievor’s recollection, the practice was inconsistent. Consequently, the evidence does not establish that the grievor was entitled to the extra four hours under either the protocol or an established and consistent practice. As a result, the grievance must be denied.