GSB#2009-2440

UNION#2009-0999-0086

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Union)

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

Donald Eady Paliare Roland Rosenberg Rothstein LLP Counsel

FOR THE EMPLOYER

Suneel Bahal Ministry of Government Services Legal Services Branch Counsel

HEARING SUBMISSIONS

November 24, December 19 & 20, 2011, October 29, 2012 November 23, 2012 December 7, 2012 December 14, 2012

Decision

1In 2006 the parties negotiated the first Provincial Memorandum of Agreement regarding the scheduling of overtime. The computerized system (Provincial Overtime Protocol) agreed upon was originally developed specifically for the Ministry’s use by Fredrick Tucker and addressed many of the concerns regarding the fairness of scheduling overtime. The Memorandum has been renewed from time to time since 2006 with few changes and continues to be extremely useful to the parties.

2Over the years since its inception, there have been a number of individual grievances filed by Correctional Officers alleging a failure to follow the system. These are heard and determined based on the facts of each situation. Additionally there have been some disputes between the parties regarding the appropriate interpretation of various aspects of the Provincial Overtime Protocol (“POP”). This Board has heard and determined those matters.

3The Union filed a grievance dated November 5, 2009 alleging that the Employer violated various provisions of the Collective Agreement and MERC agreements by refusing to properly compensate fixed term employees for “demonstrated violations of the HPRO System”. The parties identified disputed issues concerning fixed term employees.

4On June 15, 2011 this Board issued an interim decision regarding the initial dispute as to whether the POP applied to fixed term employees. This Board found that the POP applied to fixed term employees and, in the event of a violation, they are entitled to a remedy.

5Subsequent to that award the parties met and discussed remaining disputes. One matter regarding the use of the POP to hire on a statutory holiday was resolved. However, two issues remain in dispute for this Board to determine.

6The first issue is whether an employee who is absent with reasonable cause on his or her last schedule shift prior to a public holiday and who is then called in by the Employer to work overtime on a public holiday is entitled to a “day in lieu” pursuant to the Corrections Collective Agreement (COR) Article 13.4. The same issue also arises where the employee works his or her last scheduled shift prior to the public holiday, is called in to work the public holiday and is subsequently absent for his or her first scheduled shift after the public holiday.

7The second issue pertains to when the Employer can engage overtime. In essence the dispute is about the meaning of “exhaust” as that word is used in COR 8.2.2.

8After much discussion the parties could not resolve their differences and asked this Board determine these issues. Both parties provided written submissions which were thorough and helpful.

9Relevant provisions of the Collective Agreement are as follows:

COR 8 - Overtime

COR8.1 The overtime rate for the purposes of this Agreement shall be one and one-half (1½) times the employee’s basic hourly rate.

COR8.2.1 In the assignment of overtime, the Employer agrees to develop methods of distributing overtime at the local workplace that are fair and equitable after having ensured that all its operational requirements are met.

COR8.2.2 Overtime opportunities will only be offered once the non-overtime regular and non-overtime fixed-term resources have been exhausted, even if part of the shift becomes overtime.

COR8.2.2.3 In this article, “overtime” means an authorized period of work calculated to the nearest half-hour and performed on a scheduled working day in addition to the regular working period, or performed on a scheduled day(s) off.

COR8.2.3A Upon failure to meet the target in any given year pursuant to in Article COR 15.1, Article COR8.2.3 will not apply and the following shall apply. In this article, “overtime” means an authorized period of work calculated to the nearest half-hour and performed on a scheduled working day in addition to the regular working period, or performed on a scheduled day(s) off, calculated over a period of two (2) pay periods by reducing total overtime hours worked during such period by the sum of scheduled hours less hours worked.

COR8.3.1 Employees in Schedules 3.7 and 4.7 who perform authorized work in excess of seven and one quarter (7 ¼ ) hours or eight (8) hours as applicable, shall be paid at the overtime rate.

COR 13 – Holiday Payment

COR13.1 Where an employee works on a holiday included under Article 47 (Holidays) of the Central agreement, he or she shall be paid at the rate of two (2) times his or her basic hourly rate for all hours worked with a minimum credit of seven and one-quarter (7 ¼), either (8), or the number of regularly scheduled hours, as applicable.

COR13.2 In addition to the payment provided by Article COR13.1, an employee who works on the holiday shall receive seven and one-quarter (7 ¼) or eight (8) hours pay as applicable at his or her basic hourly rate or compensating leave of seven and one-quarter (7 ¼) or either (8) hours as applicable, up to 87 or 96 hours per calendar year as applicable, provided the employee opts for compensating leave prior to the holiday.

COR13.3 It is understood that Article COR13.1 and COR13.2 apply only to an employee who is authorized to work on the holiday and who actually works on the holiday, and that an employee who, for any reason, does not actually work on the holiday shall not be entitled to the payments described herein.

COR 13.4 It is further understood that the employee has no entitlement under COR 13.2 if he or she fails, without reasonable cause, to work all of his or her last regularly scheduled day of work before a holiday included under Article 47 (Holidays) of the Central Agreement or all of his or her first regularly scheduled day of work after that holiday.

COR13.5 When a holiday included under Article 47 (Holidays) of the Central Agreement coincides with an employee’s scheduled day off and he or she does not work on that day, the employee shall be entitled to receive another day off.

COR13.6 Any compensating leave accumulated under Articles COR 13.2 and 13.5 may be taken off at a time mutually agreed upon. Failing agreement, such time off may be taken in conjunction with the employee’s vacation leave or regular day(s) off, if requested one (1) month in advance.

COR13.7 Any compensating leave accumulated under Articles 13.2 and 13.5 in a calendar year which is not used before March 31 of the following year shall be paid at the rate it was earned. The March 31 date may be extended by agreement at the local or ministry level.

COR13.8 Any compensating leave accumulated under Article COR13.2 and COR 13.5 shall not be considered an accumulated credit for the purposes of Article 44.6 (Short Term Sickness Plan) of the Central Agreement.

COR13.9 Notwithstanding anything in Article COR 13, employees who are in classifications assigned to schedule 6 and who are required to work on a holiday included in Article 47 (Holiday) of the Central agreement shall receive the equivalent time off.

APPENDIX COR8

Re Letter of Understanding

Provincial Overtime Protocol

The parties agree that based on the amendments to the overtime provisions of the Correctional Bargaining Unit Collective Agreement, corresponding changes will be required for the Provincial Overtime Protocol. These changes include:

• Where an overtime period is a shift extension of four hours or less, such hours shall not be subject to distribution as per the overtime protocol, but the hours worked will count towards the overtime assessment period.

• To the extent possible, overtime opportunities will be offered once the non-overtime regular and non-overtime fixed term resources have been exhausted even if part of the shift becomes overtime.

The Provincial Overtime Protocol shall be referred to MERC for discussion and resolution of these changes and any other clarifications required, and must be ultimately approved by CERC.

UNION SUBMISSIONS

10There are two matters in dispute; one concerns Article COR 13.4 while the other concerns COR8.2.2.

11Regarding the first matter, the essential issue, according to the Union, is the application and meaning of the “reasonable cause” proviso in Article COR13.4. Employees do not know when they will be called in to work overtime on a holiday until they receive that call. The problem arises because when an employee calls in to inform the Employer that s/he will be absent on his or her last regularly scheduled shift before the holiday, it is unlikely that they would know that they will be called in to work overtime on the upcoming holiday. If they are subsequently called in to work overtime on the holiday and asked to establish “reasonable cause” within the meaning of COR13.4, the timing of such request is after the absence – and after the medical need for the absence – and therefore obtaining supporting evidence is difficult.

12Mr. Eady, for the Union, noted that Correctional Officers are entitled to various types of leave such as sick leave, bereavement leave, union leave etc. If an employee is absent pursuant to any leave considered by the Collective Agreement, that absence is for “reasonable cause” unless challenged at the time by the Employer. Many of the leaves, such as bereavement leave, have a form of “pre-approval” and therefore no proof of reasonable cause should arise.

13In the case of an employee’s absence due to illness on any particular day, it is not possible for the employee to know in advance that their absence must meet a “reasonable cause” standard. It is only when the Employer calls the employee in to work on the holiday that proviso for “reasonable cause” has any application. By that time, the cause of the illness has resolved itself and obtaining medical proof is virtually impossible.

14The Union contended that unless the Employer takes issue with the reason for the absence at the time it is reported by the Correctional Officer in the first instance, then “reasonable cause” must be presumed. Therefore the C.O. is entitled to holiday pay as set out at COR13.2.

15There have been instances, according to the Union, when the Employer has simply denied the day in lieu entitlement pursuant to COR13.2 because an employee was absent for medical reasons on their last regularly scheduled shift prior to the holiday on which they were subsequently called in to work. It appears the Employer has determined that the mere fact of the absence creates ineligibility for the lieu day. This is inconsistent with the language of COR13.4 which allows for entitlement to a day in lieu when there have been absences for “reasonable cause”.

16The Union urged that there is a considerable difficulty with employees having to provide medical proof of “reasonable cause” days after the actual absence and illness. If a CO reports an absence due to illness on a Friday before a weekend that has a holiday immediately following is subsequently called in to work on the holiday s/he might not be asked for the proof of illness until the Tuesday or Wednesday. It is virtually impossible for the C.O. to obtain the requested proof at that time because they have recovered and the most that their physician could attest to is that the C.O. reported to them that they were previously ill and unable to work.

17It was the Union’s suggestion that the only way that “reasonable cause” as provided in COR 13.4 works is to require that unless the Employer requests a note on the date of the absence, then “reasonable cause” is presumed, subject to whatever restrictions are contained elsewhere in the Collective Agreement or Employer policies.

18The words “reasonable cause” also has application when a C.O. is called in to work on a holiday and subsequently is absent for his or her first regularly scheduled shift after the holiday. The Union stated that the same practical problem proving “reasonable cause” exists. If the C.O. is not told when reporting his illness that proof is required, it will be virtually impossible to provide supporting evidence for the day in question. By the time the request is made, days will have passed since the illness and the C.O. will have recovered.

19The second dispute is relatively narrow in scope and is about the meaning of “exhausted”, according to the Union. The language of COR8.2.2 is mandatory and obliges the Employer to call all available non-overtime resources for each available shift before resorting to overtime resources under the POP.

20Regarding the second issue that is in dispute between the parties, Mr. Eady noted that language at issue, that is COR8.2.2, first appeared in the 2009 – 2012 Collective Agreement. It was urged that the parties intended to new language to govern the assignment of non-overtime resources and that those non-overtime resources must be “exhausted” prior to implementing the POP. COR8.2.2 states that overtime opportunities will be offered only after other resources have been exhausted.

21The inclusion of the word “only” makes the clause mandatory rather than optional or discretionary.

22The Union noted that the Oxford English Dictionary defines “exhaust” as “to use up completely”; “to expend the whole of”; “to consume entirely”; “to account for or utilize the whole number of quantity of (anything)”.

23It was urged by the Union that the term exhausted must mean more that other qualifying terms such as “reasonable efforts” or “best efforts”. Clearly, the Employer must contact all available non-overtime resources before the overtime protocol is implemented. Failure to so assign work will cause liability for damages for those employees who were available but not contacted.

24According to the Union, when a particular shift becomes available the Employer must contact every CO who has not been scheduled or worked forty hours in the work week and ask whether that C.O. wants to work that particular available shift. In the event that the Employer does not speak directly with the C.O., a message should be left specifying the starting time and duration of the available shift.

25Mr. Eady stated that there is no need to call all the same Correctional Officers in the event that another shift of the same start time and duration becomes available unless they had called and made themselves available but the shift was already assigned to another.

26However, the Union contended that if another shift becomes available that is not of the same start time or duration that same day, the Employer is again required to call all non overtime resources to determine whether they are available to work the shift in question.

27This is the appropriate reading of the Collective Agreement according to the Union because it is consistent with COR 8.2.2 and allows for the fact that a “non-overtime resource” may be temporarily away from the phone and allows that person to call back and indicate that they are available for that shift. There is no doubt that filling a needed shift with a non-overtime resource is cheaper than paying overtime.

28The Union seeks a declaration that its view is correct and asked the Board to remain seized.

EMPLOYER SUBMISSIONS

29Mr. Bahal, for the Employer, contended that the both questions must be found in favour of the Employer.

30Regarding the first issue it was suggested that the Union’s interpretation would cause this Board to render the clear language of the Collective Agreement meaningless because it would allow employees entitlement under Article 13.2 unless the Employer requests proof of absence for “reasonable cause”.

31It was asserted by the Employer that the Union mischaracterized the dispute between the parties. This matter is not an issue regarding the meaning of a phrase from the Collective Agreement. Rather, it is more accurately described as a dispute over the application of a clause of the Collective Agreement. There is no latent ambiguity in the language of the Collective Agreement. This Board cannot alter or amend the provisions of the Collective Agreement merely because the Union is not satisfied with the manner in which it operates.

32The actual disagreement between the parties is the result of the Union’s attempts to remove an employee’s obligation to provide “reasonable cause” in circumstances covered by COR 13.4. The Employer submitted that the essence of the dispute is whether the Board has the power to alter or amend the Collective Agreement, even if the application of the Agreement has the possibility to create hardship upon one party in some instances.

33Article 44.10 of the Collective Agreement sets out criteria under which the Employer can require medical documentation to substantiate an absence. If there is suspicion of abuse or when an employee is absent more than five days such documentation can be required. Article 44.10, according to the Employer, fetters its discretion with regard to requirement for proof of reasonable cause of absence. However, there is no such fettering of its discretion when an employee may have to provide proof of “reasonable cause”, for the purposes of an employee’s ability to access potential entitlements under a different provision of the Collective Agreement.

34Mr. Bahal urged that COR 13.4 provides that the employee’s word alone may not necessarily be sufficient. There is an onus upon the employee to demonstrate “reasonable cause” if he or she wants to access the entitlement potentially granted by COR13.2. There can be little doubt that COR13.2 creates different obligation upon the employee when seeking to derive a particular benefit granted only when the employee works on the date of a statutory holiday.

35The Employer stated that the Union’s concern that employees may not know that evidence of reasonable cause is needed until many days after they have recovered is without merit. COR13.4 provides that employees have entitlement under COR13.2 only when reasonable cause for their absence is demonstrated. Accordingly, when an employee accepts an opportunity to work on the statutory holiday s/he is immediately aware that they must demonstrate “reasonable cause” in order to acquire this entitlement. There is no onus on the Employer. If the employee is worried that they cannot show “reasonable cause” for any absences in the circumstances they can elect not to accept the offer and forego the entitlement under COR13.2.

36The Employer asserted that just because its interpretation might cause some difficulty for some employees in specific instances, the Board cannot alter or amend the clear language of the Collective Agreement. This Board cannot pass judgment on the equitability of the application of the provision. It must give the words their plain meaning and in the case, that will bring a finding for the Employer.

37The Employer relied upon Re International Brotherhood of Boilermakers and Howden & Parsons (Canada) Ltd. (1970), 1970 CanLII 1648 (ON LA), 21 L.A.C. 177 (Weiler); Re Civic Employees Union No. 43 and City of Toronto (1967), 1967 CanLII 1061 (ON LA), 19 L.A.C. 9 (O’Shea); Re Municipality of Waterloo and CUPE Local 1656 & 1883 80 C.L.A.S. 398 (Nairn); Re Essex County and CUPE 2974.1 (2003), 2003 CanLII 89538 (ON LA), 115 L.A.C. (4th) 316 (Freedman); and Re The Crown in Right of Ontario (Ministry of Health) and OPSEU (Belanger et al) GSB#976/93 (Kaufman). In each of these cases, Boards of Arbitration have found that the appropriate interpretation is derived based on the language the parties have used. Even in those instances when Boards of Arbitration might not be in favour of what is expressed in the Collective Agreement, if the language is clear and unambiguous, effect must be given to the intent expressed. The interpretive exercise is not driven by changed or unanticipated circumstances that might cause “unforeseen obligations being imposed on one party or another to the bargain.”

38Regarding the second matter before this Board, Mr. Bahal submitted that additional provisions must be considered. Appendix COR8 in the Collective Agreement states:

To the extent possible, overtime opportunities will be offered once the non-overtime regular and non-overtime fixed-term resources have been exhausted, even if part of the shift becomes overtime.

39The most recent POP, signed October 29, 2009, contains similar language that has been agreed in previous agreements. It states:

To the extent possible, overtime opportunities will only be offered once the non-overtime regular (classified) and non-overtime fixed term (unclassified) resources have been exhausted, even if part of the shift becomes overtime.

40Mr. Bahal noted that the Union urged that the word “exhaust” must be read in a fashion that obliges the Employer to offer every fixed term employee each available shift until that shift has been covered or all such employees decline the offer or do not respond. It was urged that the more logical conclusion is that “exhaust” refers to the Employer’s commitment to offer up to a particular number of straight-time hours per week as defined in the Collective Agreement and not in reference to a commitment regarding every potential overtime opportunity.

41The Employer said that a purposive analysis should be undertaken which would provide a definition that accords with the intent of the provision. COR8.2.2, Appendix COR8 and the Provincial Overtime Protocol were developed to increase non-overtime resources maximizing straight time hours worked. These hours are to be measured on a weekly basis. Accordingly, an individual employee’s hours can only be “exhausted” on a weekly basis and it is only after the calendar week has ended that an evaluation can be undertaken as to whether, if the Employer resorted to offering overtime opportunities, it has successfully exhausted non-overtime resources by offering them the opportunity to maximize their straight time hours.

42The Employer noted that there is no temporal requirement given to the word “exhaust” in any of the salient provisions. Given that lack of specificity, it is logical that the clause should operate with the same temporal requirements as the Employer’s obligation which it governs. It is illogical that this provision in the POP creates obligations upon the Employer that vest over a shorter period of time.

43The Union’s suggested interpretation is operationally problematic, according to the Employer. The non-overtime employees would have extensive latitude in determining when they wish to work. It is more appropriate that the Employer has the ability to manage its institution.

44The Employer submitted that “exhaust” refers to its obligation to ensure that fixed term employees have worked or been offered the opportunity to work up to forty hours in a calendar week. Once the employee refused an offer to work, those refused hours should be part of the consideration of what constitutes exhausting the Employer’s obligation towards each non-overtime employee over the period of the week.

45Mr. Bahal submitted that the use of phrase “to the extent possible” at the outset of this provision must be seen to qualify any obligation which follows. Clearly, the parties took into account that it might not always be possible to meet this commitment. The Union ignored this phrase perhaps because it does not appear in COR 8.2.2. However, it is included in COR8 and the POP and must be intended to govern the decisions to hire overtime. Certainly the language must be given some meaning. It cannot simply be read out of the Collective Agreement. This Board must presume that the parties intended every word to have meaning within the context in which it appears.

46The Employer stated that the qualifying phrase “to the extent possible” renders this provision discretionary and not mandatory as asserted by the Union. The Union relied on the word “only” as the underpinning for a finding that the clause is mandatory. However, the phrase must be found to be explicit recognition by both parties that this commitment cannot be mandatory in every circumstance. The parties recognized that there would be circumstances when other considerations would lead to situations where the complete exhaustion of the resource was not possible. The Employer has some degree of discretion allowing for a case-by-case examination where assessment of feasibility and practicality may govern what is and what is not reasonable in the circumstances.

47The Employer urged that the Union’s interpretation be rejected. In the alternative, if the Union’s view is accepted, there is no justification to impose the requested remedy which includes requirements about how the Employer must manage the offering of such opportunities. It would be beyond the jurisdiction of this Board to order that detailed voice messages must be left for every officer in order to allow the Union the opportunity to police whether the Employer is abiding by COR8.2.2. This Board can only make on order regarding when opportunities can and cannot be offered. It cannot restrict how those opportunities are to be offered.

48Regarding the matter of damages, the Employer suggested that in the event the Union’s view prevails, the parties should be given an opportunity to deal with the matter because any entitlement to damages has to be determined through a review of the grievors’ individual circumstances rather than through a predetermined remedy set out in this decision. In any event, no award of damages is appropriate when the employee worked or was offered forty hours by the end of a week in instances when overtime was offered. To do otherwise would compensate an employee for missed straight-time work opportunities when the employees were subsequently offered or in fact worked their maximum straight-time work opportunities over the course of the week.

UNION REPLY SUBMISSIONS

49Addressing the first issue in dispute, Mr. Eady stated that the Union is not asking the Board to amend or alter the Collective Agreement as submitted by the Employer. Rather, what is being asked is an interpretation of the Collective Agreement consistent with the Union’s view that unless the Employer has requested medical proof when calling in to report an absence, an employee has the right to assume that they have reasonable cause for their absence. This is not an “exception that was not bargained for” as urged by the Employer. The Employer should inform the employee on the date the absence is being reported that further proof is needed to demonstrate “reasonable cause” for the absence.

50Regarding the second issue, the Union replied that while the Employer correctly noted that the POP has the words “to the extent possible”, Article COR8.2.2 does not. The POP covers how and when overtime resources are allocated and what the Employer must do to obtain those overtime opportunities.

51The Union noted that, contrary to the Employer’s argument, there is nothing in the language of the Collective Agreement – or even in the POP – that addresses the commitment to offer up a particular number of hours to non-overtime staff. However they are required – whether it is “to the extent possible” or not – to exhaust all non-overtime resources before resorting to the more expensive option of overtime under the POP. There is nothing in the Collective Agreement or the POP that contemplates the maximizing of straight-time work hours of either regular or fixed-term employees. Further, there is nothing referring to the exhaustion of non-overtime resources or any evaluation to be done by the Employer at the end of a calendar week. The Union is not – as suggested by the Employer – arguing that non-overtime employees have latitude in determining whether they work. The question for this Board to answer is what is the Employer’s obligation when a shift needs to be filled. It is not whether the shift needs to be filled in the first instance. The only issue is whether the shift is to be filled by a non-overtime employee or whether it is assigned as an overtime shift in accordance with the POP.

52The Union took exception to the Employer’s view that the phrase “to the extent possible” provides a degree of discretion on the Employer in the filling of the shift. It might relieve the Employer from certain “impossible” situations where they were unable to secure non-overtime opportunities. However, it is noteworthy that the Employer did not provide any examples of when it would be “impossible” to attempt to secure non-overtime resources before proceeding to implement the overtime provisions in POP.

53The Union finished by underscoring that there is nothing in the Collective Agreement that allows the Employer to “exhaust resources” over the period of a calendar week. Such a suggestion stretches the language of the Collective Agreement beyond reason. Article COR8.2.2 is clearly a mandatory provision.

DECISION

54The first question for this Board to consider is what entitlement, if any, do Correctional Officers have to compensating leave under the provisions of COR13.2 when they fail to work all of his or her last regularly scheduled day preceding or the first regularly scheduled day following a Paid Holiday.

55The parties have polar opposite views as to the principals to apply and the answer to the first question. Simply put, the Union is of the view that in cases of normal absences, Correctional Officers should be presumed to be absent for reasonable cause while the Employer is of the view that there is a positive obligation upon Correctional Officers to establish reasonable cause in every case of such an absence.

56After consideration, I am of the view that the Union’s view must prevail. I cannot interpret Article COR13.4 as imposing a higher standard than the plain reading of the language.

57Article COR13.4 provides an exception for entitlement to compensating leave under COR13.2. That exception concerns employees who without reasonable cause, fail to work their shifts on regularly scheduled days adjacent to the holiday. The language of the article describes a factual circumstance and does not describe an obligation or a procedural requirement on employees to provide evidence to demonstrate “reasonable cause”. Instead, it references “reasonable cause” as a matter of fact within the context of absences.

58The Employer noted that there is a provision in the Collective Agreement that establishes its right to medical verification of employee absences in certain circumstances. Article 44.10 states:

After five (5) days’ absence caused by sickness, no leave with pay shall be allowed unless a certificate of a legally qualified medical practitioner is forwarded to the employee’s manager, certifying that the employee is unable to attend to his or her official duties. Notwithstanding this provision, where it is suspected that there may be an abuse of sick leave the employee’s manager may require an employee to submit a medical certificate for a period of absence of less than five (5) days.

59The clause is of assistance for two reasons. First, it clearly states that when an employee is absent for more than five days, a medical certificate “shall” be provides or sick leave will not be paid. This provision reveals that the parties put their minds to those circumstances that mandate an employee to prove the bona fides of their absence. In other words, an employee who is absent for more than five days must show that there is reasonable cause for their absence.

60Second, it is also apparent that the parties recognized that there may be circumstances when an employee’s absence is less than five days but nevertheless suspicious. In those instances when the Employer suspects abuse, it can ask for a medical certificate to authenticate the reasons for the absence. Such a provision allows the Employer to ensure there is legitimacy or reasonable cause for any particular absence. For the clause to be utilized, a request for a certificate must be made. In the words of Article 44.10, a “manager may require” a medical certificate.

61I think it is fair to presume from this language that only when abuse is suspected and a request for a certificate is made or when an employee has been absent for a five day period is the Correctional Officer to provide a medical certificate which would show their absence was medically necessary – or, in other words, that there was “reasonable cause” for their absence.

62If one keeps these express Employer rights in mind when considering the interpretation of Article COR 13.2 and 13.4, it lends support to the Union’s view that not every absence immediately preceding or following a holiday can be subjected to an automatic need for a medical certificate.

63On the other hand, there is no doubt that the Employer might, as set out in Article 44.10, suspect abuse of sick leave in certain instances when a Correctional Officer fails to work their full regularly shift before or after a Paid Holiday. Nothing in this decision should be seen to diminish the Employer’s ability to exercise its rights under Article 44.10.

64However, I am the view that when the Collective Agreement is read as a whole, the Employer is not entitled to presume that a Correctional Officer’s failure to work a full regularly scheduled shift immediately before or after a Paid Holiday is without reasonable cause. If it suspects abuse the Employer can and should ask for proof of “reasonable cause” for the absence.

65I understand the Union’s concern that if an employee is not specifically told at the time or reporting an absence due to sick leave – that is – when they are ill – then obtaining the appropriate medical documentation might prove difficult if not impossible.

66I agree with the Employer’s view that the language of COR13.4 reveals that the parties agreed that the employee’s word may not be sufficient to be entitled to the provisions of COR13.2. However, I cannot agree that there is an automatic presumption of no reasonable cause unless the employee can prove otherwise. It may well be that the Employer is suspicious of a Correctional Officer’s absence just before or after a Paid Holiday. Fair enough. But in those circumstances it is incumbent upon the Employer to express its need to be shown there is reasonable cause for the absence.

67In my view, contrary to the assertion of the Employer, this interpretation does not require an alteration, modification or amendment to the Collective Agreement. It is an interpretation that is consistent with a reading of the Collective Agreement as a whole.

68I turn now to the second matter that is in dispute between the parties. I cannot interpret Article COR8.2.2 as imposing a higher – or lower – standard than the plain reading of the language. In my view, the Union would have me impose a standard greater than is intended and the Employer has urged a lesser standard.

69Article COR8.2.2 references when overtime opportunities will be offered. When read together with the preceding and subsequent clauses, it sets out a sequencing of which employees are to be first offered opportunities.

70Opportunities are to be first offered where it does not trigger overtime pay. That being said, the clause does not purport to modify the standard or procedure for offering overtime opportunities.

71These procedures for offering overtime opportunities are a balancing of interests that have required a separate protocol – the POP. It is not surprising that the POP has much more extensive language and reiterates the sequencing but does so with a key proviso, that is, “to the extent possible…”.

72Scheduling of these opportunities is done in an ever-changing fluid work environment. It is a balance between many Collective Agreement provisions, the POP, multiple employee schedules, the protocol software, communication software, a variety of message machines and responses to those messages. It must be administered fairly and in compliance with the agreement of the parties.

73The preamble in Appendix COR8 references the amendments to the overtime provisions in the Collective Agreement as the basis for changes that would be required for the POP. The parties understood that the words “to the extent possible” contained in the POP was an agreement on a standard and that COR8.2.2 was not intended to attribute a different standard.

74I disagree with the Union view of this issue. In essence, the Union would have the Employer perpetually calling all fixed term employees for each and every shift that comes available irrespective of the time that has passed since the last attempt to contact the fixed term C.O. For example, if the Employer’s need on a particular day was for seven shifts with varying starting and stopping times to be filled, the Employer should not be expected to call the same fixed term employee seven times. However, I accept that one call might not be sufficient because of a host of communication issues: busy signals; no answer; call waiting; call forwarding; and crossed messages. These are some of the normal issues encountered in telephone communication. One instance of no response does not mean that the Employer does not have to call the fixed term C.O. again.

75The Employer suggested that any refused opportunities to work should be part of the consideration of what constitutes exhausting a non-overtime employee over the course of a week. While that has some initial attraction, I must disagree. The parties put their minds to the fact that when a regular C.O refuses an overtime opportunity, those hours are counted as part of their HOT hours according to the POP. If the parties meant for the same concept to apply for refused opportunities from fixed term employees, they could have and should have said so. They did not.

76I agree with the Employer that the inclusion of the words “to the extent possible” render the provision something other than mandatory. However, it is not discretionary either as that term is commonly understood in labour relations parlance. In my view, the Employer is to make a genuine effort – to convey the message of an opportunity to the appropriate employee. In other words, there must be a genuine effort to ensure that “overtime opportunities will only be offered once non-overtime regular and non-overtime fixed term resources have been exhausted, even if part of the shift becomes overtime”. However, the parties have clearly recognized that this will not always be possible. Therefore, it is not mandatory as the Union would have me find.

77It seems to me that “to the extent possible” means that in different fact situations, different results may flow – taking all of the facts into account. I accept the Employer’s view that it is a phrase that reveals the parties understood that there may well be circumstances when other considerations would lead to situations where the complete exhaustion of the resource was not possible. However, those instances would have to be bona fide occasions where circumstances overtake the Employer’s requirement to exhaust the non-overtime resources.

78It may be that as a result of this decision the parties determine that it makes labour relations sense to attempt to negotiate a cogent definition of when non-overtime resources are exhausted and to consider appropriate methodology perhaps with some tolerance levels for communications and responses. Hopefully this will be an easier task now that the Board has set out the parameters found herein. It seems to me that failure to do so will mean that a case-by-case consideration will have to be undertaken to determine if the facts substantiate the Employer’s assignment of overtime work in the event of disputes.

79I remain seized.