GSB# 2017-0599; 2017-0600; 2017-0604; 2017-0657

UNION# 2017-0368-0065; 2017-0368-0066; 2017-0368-0070; 2017-0368-0074

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Crockford et al)

Union

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Michelle Flaherty

Arbitrator

FOR THE UNION

Lauren Tarasuk Koskie Minsky LLP Counsel

FOR THE EMPLOYER

Daria Vodova Treasury Board Secretariat Legal Services Branch Counsel

HEARING

October 9, 2018 and May 2, 2019

Decision

1The Grievors are fixed term employees, who were placed on non-disciplinary, paid suspensions pending the outcome of workplace investigations. The grievances raise the following issue: were the Grievors entitled to their regular rate of pay for statutory holidays that fell within the period of their paid suspensions?

2The grievances were consolidated and referred to mediation/arbitration in accordance with Article 22.16 of the Collective Agreement. The parties participated in a mediation October 10, 2018. On May 2, 2019, they submitted an agreed statement of facts and a joint book of documents. Counsel made oral submissions. No witnesses testified at the hearing.

3Pursuant to article 22.16 of the Collective Agreement between them, the parties asked that the Board issue a succinct decision of no precedential value.

Facts

4The Grievors are fixed-term Irregular Correctional Officers or fixed-term Youth Service Officers. During their paid suspensions, each was placed on an administrative schedule, set at an eight-hour shift from Monday to Friday, from 9:00 a.m. to 5:00 p.m.

5A letter of understanding between the parties (Appendix Cor9) states that:

In instances where a Correctional Bargaining Unit employee is suspended pending an investigation and a determination has been made to suspend the employee with pay, the suspension of a fixed-term employee will be based on averaging the straight-time hours worked by the employee during the previous 13 weeks.

6The parties agree that, for each of the Grievors, this amounts to 40 hours per week.

7During their suspensions, except for weeks containing statutory holidays, the Grievors were paid for 40 hours at their regular rate of pay. On weeks containing statutory holidays, the Employer deducted eight hours for each statutory holiday. For example, on weeks containing a single statutory holiday, each of the Grievors was paid for 32 hours at their regular rate of pay.

Decision

8In rendering this decision, I have considered the evidence, the language of Appendix Cor9 and article 31A.5.1 of the Collective Agreement. I have also considered counsel’s submissions and the jurisprudence they submitted.

9In Appendix Cor9, the parties agreed to a formula for determining the pay for fixed-term employees serving paid suspensions. Significantly, Appendix Cor9 does not provide for any reduction in pay for weeks that include statutory holidays. Nor can such a reduction be inferred from the language of the letter of understanding.

10In accordance with the Collective Agreement, all employees, including the Grievors, receive 4.6 percent of gross pay to compensate for statutory holidays. The 4.6 percent is added to each pay cheque and is payable whether or not the employee is required to work on any given statutory holiday.

11The Employer submits that it would be inappropriate for the Grievors to receive both 4.6 percent of gross pay and their regular rate of pay on statutory holidays. However, Appendix Cor9 was bargained by the parties and it creates a complete regime for calculating fixed-term employees’ pay during paid suspensions. It is not open to me to disregard clear, agreed-upon language to relieve against inequities perceived by one of the parties.

12Article 31A.5.1 of the Collective Agreement sets out compensation levels for employees who are required to work on a statutory holiday. This provision does not address the particular circumstances of the Grievors, who (for obvious reasons) were not required to work during their suspension. The Grievors’ entitlement to compensation is specifically dealt with in Appendix Cor9. The fact that the Grievors do not fall within the categories of employees captured in article 31A.5.1 does not preclude them from receiving compensation in accordance with the letter of understanding.

13For these reasons, the grievances are allowed. I remain seized regarding any issues relating to the implementation or enforcement of this award.