GSB# 2017-3192

UNION# 2017-0599-0017

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Lim)

Union

• and -

The Crown in Right of Ontario (Ministry of Finance)

Employer

BEFORE

Barry B. Fisher

Arbitrator

FOR THE UNION

Seung Chi Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Justin O’Gorman Treasury Board Secretariat Centre for Employee Relations Employee Relations Advisor

HEARING

July 4, 2018

DECISION

1This is a case under Article 22.16 of the Collective Agreement.

2The Grievor is an EHT Tax Auditor and has been such since 1993.

3There are two aspects to the grievance.

1. Vacation Pay Issue:

4This matter has been resolved during the mediation stage as I assessed the damages at $50, which the Employer agreed to pay.

2. Harassment and Bad Faith Allegation:

5This matter could not be resolved at mediation, so the matter was arbitrated. The only witness was the Grievor.

6The relevant provision of the Collective Agreement is Article 3.3, which reads as follows:

1. The Parties are committed to a workplace free from workplace harassment, including bullying, by other employees, supervisors, managers, any other person working or providing services to the Employer in the workplace, clients or the public, in accordance with the law. Workplace harassment is engaging in a course of vexatious comment or conduct against an employee in the workplace that is known or ought reasonably to be known to be unwelcome.

7The Union particularized three incidents under this heading.

8First, the Grievor alleges that her Manager allocated less hours for her to complete her audits than was set out in the Audit and Inspections Manual.

9In effect this Manual sets out guidelines to the Manager in determining how much time an auditor is allotted to complete an audit. The guideline is based on the payroll size of the client. For clients with a payroll less than 1 million dollars, the guideline is 25 hours. For payrolls between 10 and 100 million the guideline calls for 50 hours and for clients with payroll is excess of 100 million, the guideline is 75 hours.

10The Manual also sets out a process for the auditor to request from her Manager additional hours to complete the task.

11On direct examination the Grievor testified that just recently she had been assigned a client with a payroll in excess of 100 million dollars but only allocated 60 hours instead of the 75 hours set out in the guideline. Similarly, she was assigned only 30 hours to a company with a payroll of approximately 14 million when the guideline refers to 50 hours and lastly she was assigned only 15 hours to a small client when the guideline refers to 25 hours.

12On cross examination she testified that in the past whenever she requested additional hours from this Manager for a specific audit, he always approved the request.

13I find that this Manager acted well within his powers to assign the Grievor the hours that he did and doing so is neither harassment nor a bad faith exercise of management rights. The Manual speaks to a guideline only while stating clearly that “The audit manager is responsible for assigning the initial time on the audit.” A guideline implies that the Manager has a discretion to either assign more or less hours than the guideline. Moreover, the Grievor’s own testimony is that whenever she asked for more time, she got it.

14The second allegation is that the Manager unfairly denied her permission to take an educational course. In fact, what happened was the Manager said “no” to her first choice as he felt it was not related to her work but said ‘yes” to her alternate choice. The Grievor was asked by her manager to tell him in writing why she thought her first choice was work related. The Grievor felt that this request for a written submission constituted bullying.

15I disagree. Again, the Manager exercised his right and obligation to assess her request based on whether it was work related. His request for her written submission was also very reasonable.

16Lastly, the Manager and the Grievor had a dispute arising from the interpretation of a medical note. Upon a return to work the Grievor presented a medical note which stated that she was to return to work half days and then indicated a time period of 10 to 2, in other words 4 hours per day. As the Grievor did not work a 40-hour work week but rather 36.25 hours, half time would actually be 3.625 hours a day instead of 4 hours.

17In other words, this dispute was over 22.5 minutes a day. In fact, it was not even over that much because the only difference between working 22.5 minutes and being on sick leave for the same period is the value of the vacation pay top up, which is 25% of that amount.

18Thus, the real dispute was over about 5 minutes a day.

19It is not necessary for me to decide in this case who was right and who was wrong regarding the issue of the 5 minutes, as managements’ actions, do not arise to the level of either harassment or the bad faith exercise of management rights.

20The grievance is allowed insofar as the Grievor is entitled to receive vacation pay in the sum of $50.00. This money should be paid out as soon as practicably possible.

21I retain jurisdiction over all issues regarding the implementation and or interpretation of this award.