GSB#2013-0638

UNION#2013-0228-0040

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Higgins)

Union

• and -

The Crown in Right of Ontario (Ministry of Attorney General)

Employer

BEFORE

Felicity D. Briggs

Vice-Chair

FOR THE UNION

Seung Chi Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Omar Shahab Treasury Board Secretariat Legal Services Branch Counsel

HEARING SUBMISSIONS

November 7, 2014 December 5, 2014

Decision

1Mr. Gary Higgins was a Court Services Officer (“CSO”) working at the Brampton Court House. He filed a grievance that alleged the Employer has violated various provisions of the Collective Agreement as the result of failing to pay him stand-by pay. By way of remedy he requested a declaration that the Employer had breached the Collective Agreement, stand-by pay for those instances when he should have been assigned stand-by and damages.

2This grievance was heard at a med/arb session in accordance with Article 22.16. Accordingly, this decision is without prejudice or precedent.

3There were further written submissions sent to the Board by agreement of the parties.

4The grievor became a Flexible Part Time working 1500 hours in approximately 2007.

5According to the grievor, prior to the fall of 2012 the Employer assigned some CSOs to be on standby overnight in case there was a possibility that a judge presiding over a jury trial might require the services of a CSO. This practice ended in the fall of 2012 and staff was so informed at a meeting that the grievor did not attend. He was scheduled to work overnight one night in October, November and December of 2012. In each instance he received a call from his Employer saying that his services were not required. He was not paid stand-by.

6The grievor retired and became a fixed term CSO in January of 2012. During his employment in that capacity he received an email stating that he was scheduled to work overnight on January 29, 2013. However, on January 29th at 2:00 p.m. the grievor was told that his services were not required. He was not paid stand-by pay.

7The grievor claims that he should have been paid stand-by pay for these and other instances.

8The Union submitted that according to Article UN 10 and UN 15 - which are identical provisions – the grievor was entitled to be paid stand-by pay.

9The Union contended that the times for which the grievor is claiming stand-by pay were “a period of time that is not a regular working period” and that he was “immediately available”, thereby meeting two of the three criteria needed to be eligible for stand-by pay as set out in the Collective Agreement. Finally, with respect to the final requirement that the stand-by be “authorized in writing by the supervisor or expressly advised by the supervisor prior to the stand-by period”, the grievor asserted that it was the practice at the Brampton courthouse that an assignment of stand-by did not need to be so authorized. The simple fact that he was scheduled to work overnight was sufficient authorization to be eligible for stand-by pay.

10The Employer disagreed with the Union’s contentions. It was of the view that the grievor was never authorized in writing or otherwise to stand-by and therefore is not entitled to payment. Further, the grievor was not working during a “period of time that is not a regular working period” and therefore does not meet two of the three needed criteria to be entitled to stand-by pay.

11In its reply submissions the Union took issue with the Employer’s view of whether the times at issue were “not a regular working period.” It was urged that the grievor had a routinely recurring work period that met the requirement of the stand-by provisions.

12After consideration of the facts and submissions in this matter, I am of the view that the grievances must fail. Simply put, I have no evidence that the grievor was “authorized in writing” or “expressly advised” that he was being assigned stand-by.

13Both Article UN 10.3 and 15.3 state that “where stand-by is not previously authorized in writing, payment as per UN 10.4 shall only be made where the supervisor has expressly advised the employee that stand-by duty is required.” The grievor’s failure to meet this criterion leads to a finding that there has been no violation of the Collective Agreement.

14Accordingly, the grievance is dismissed.