GSB# 2018-3598

UNION# 2018-0430-0021

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Kerr et al)

Union

• and -

The Crown in Right of Ontario (Ministry of Transportation)

Employer

BEFORE

Kevin Banks

Arbitrator

FOR THE UNION

Erin Thorson Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Janet Sinclair Treasury Board Secretariat Employee Relations Advisory Services Team Lead

HEARING

October 22, 2019

DECISION

1The parties have referred this matter to expedited mediation-arbitration in accordance with Article 22.16 of the Collective Agreement. The parties agree that I have jurisdiction to decide it. Under Article 22.16, where the parties are unable to resolve their differences through mediation, the arbitrator is to expeditiously issue a succinct decision without precedential value, unless the parties agree otherwise.

2The hearing took place on October 22, 2019. I received evidence and submissions from the Union and the Employer.

3The grievance alleges that the Employer failed to distribute overtime that it authorized Mr. Justin Smit to work on February 14, March 29 and May 24, 2018 fairly and equitably, because it had failed to develop methods of distributing overtime at the local workplace that are fair and equitable, contrary to Article UN 8.2.1 of the Collective Agreement.

4The Employer submits that Article UN 8.2.1 does not apply to the overtime that Mr. Smit worked because that overtime was authorized by mistake, one that the Employer did not discover until after it had been worked. The Employer maintains that any method of distributing overtime could only apply to overtime that it actually anticipated assigning. The Employer says that it does develop fair and equitable methods to distribute overtime before it undertakes projects that it anticipates will require overtime.

5The evidence shows that Mr. Smit worked the hours in question because of a good faith scheduling mistake by the Employer, and that the Employer did not discover the mistake until after he had worked them.

6Having carefully considered the evidence put before me, the submissions of the parties, and the language of the relevant provisions of the Collective Agreement, I have concluded that there was no breach of the Collective Agreement. In my view, in Article UN 8.2.1 the term “assignment” does not refer to a situation such as this one in which the Employer was not aware at the relevant time, due to a good faith error, that it had authorized overtime. As this is sufficient to decide on the grievance, I make no other findings.

7The grievance is dismissed.