GSB#2016-0030

UNION#2016-5112-0026

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Tattersall et al)

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

Dan Sidsworth Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

James Cheng Treasury Board Secretariat Centre for Employee Relations Employee Relations Advisor

HEARING

December 6, 2016

Decision

1The Employer and the Union at the Toronto South Detention Centre agreed to participate in the Expedited Mediation-Arbitration process in accordance with the negotiated Protocol. A number of the grievances were settled through that process. However, this grievance remained unresolved requiring a decision from this Board. The Protocol provides that decisions will be issued within a relatively short period of time after the actual mediation sessions and will be without reasons. Further, the decision is to be without prejudice and precedent.

2Mr. Blain Tattersall and twenty-one other Fixed Term Correctional Officers filed a group grievance alleging that the Employer violated the Collective Agreement when it changed the “work schedule after posting without verbally confirming with the employee”. The work schedule at issue encompassed the Christmas and New Year’s period of 2015. By way of remedy the grievors requested “all hours worked during the affected period to be paid at twice the rate the employee would otherwise be entitled”; credited with one sick credit; and any other remedy the Board deems appropriate.

3On October 7, 2015 the Fixed Term COs were asked to submit their preferences for time off over the upcoming holiday season. The schedule for the holiday period was issued on November 19, 2015.

4On December 10, 2015 one of the Fixed Term Correctional Officers wrote an email to numerous Correctional Officers suggesting they “double check your Christmas schedule most of our have changed due to the group grievance that was submitted”.

5The following day Fixed Term Correctional Officers received an email from The Sergeant of the Scheduling Department stating that adjustments were to be made for the week of Christmas due to operational needs and requirements. All were advised to check HPRO for the changes. It was further set out that each would be contacted personally with the changes. According to Mr. Tattersall, none of the Fixed Term Correctional Officers covered by the instant grievance were contacted personally with the changes made.

6The Union noted that according to COR 5 “Fixed term employees will be pre-scheduled two (2) weeks in advance with all known shifts being scheduled. Any change to the pre-scheduled shifts must be verbally confirmed.” It was urged that as a result of the collective agreement breach, the requested remedy should be awarded.

7The Employer did not dispute the Union’s allegation of lack of personal contact regarding the schedule change. However, it was submitted that no compensation such as requested by the Union should be awarded.

8After consideration of the facts and submissions of the parties I find that the Employer did not comply with its obligations found at COR 5.6 of the Collective Agreement regarding the schedule changes for the grievors. However, other than this declaration, I order no further remedy.

9There are instances where the parties put their minds to the payment of a penalty for scheduling violations such as is found at Article COR 5.1 and 5.2. The parties did not set out a compensatory penalty for a violation of Article COR 5.6 and therefore I decline the Union’s invitation to order one be paid.

10To that extent, the grievance is upheld.