GSB# 2009-2901; 2010-0671
UNION# 2009-0530-0151; 2010-0530-0065
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Tsangaris)
Union
- and -
The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)
Employer
BEFORE
Gail Misra
Arbitrator
FOR THE UNION
Dan Sidsworth Ontario Public Service Employees Union Grievance Officer
FOR THE EMPLOYER
James Cheng Treasury Board Secretariat Employee Relations Advisor
HEARING
June 26, 2019
DECISION
1The Employer and the Union at the Toronto South Detention Centre (TSDC) agreed to participate in mediation-arbitration in accordance with the Local Mediation-Arbitration Protocol that has been negotiated by the parties. Should mediation not result in resolution of a grievance, pursuant to the Protocol, they have agreed to a mediation-arbitration process by which each party provides the Arbitrator with their submissions setting out their respective facts and the authorities they may be relying upon. This decision is issued in accordance with the Protocol and with Article 22.16 of the collective agreement, so that it is without precedent or prejudice to any other matters between the parties, and is issued without written reasons.
2Emmanouel Tsangaris worked at the Toronto Jail as a Cook 4, or Head Cook, in the Kitchen. Since the Toronto Jail closed some time ago, any outstanding grievances from that facility are dealt with through the TSDC.
3Mr. Tsangaris filed a grievance dated December 23, 2009, claiming that he should have been scheduled for work on December 25, 2009 in accordance with his compressed work week rotating schedule and was not. The Grievor claims that his schedule was changed without notice, and he was "laid off" for his 12 hour shift on December 25, 2009. Mr. Tsangaris states that he made himself available for recall in accordance with a local agreement, but was bypassed and not "hired" for that date. The Employer had a Cook 2 fill in for him while he was off work on the statutory holiday. As such he was deprived of being able to work on a statutory holiday, and being paid at premium rates accordingly.
4It later became clear that the Grievor had also been given the statutory holiday on January 1, 2010 off, and was claiming that he should have been scheduled to work that statutory holiday as well, and paid accordingly.
5Mr. Tsangaris filed a second grievance regarding the same issue on April 28, 2010, claiming that he was not given the opportunity to be "recalled" on three statutory holidays, as per a local agreement: April 2, 2010 (Good Friday), April 4, 2010 (Easter Monday), and May 24, 2010 (Victoria Day).
6Although on March 8, 2010 the Grievor had advised the Toronto Jail that he would be resigning from his position effective May 31, 2010, he maintains that he remained available to be "recalled" for the statutory holidays outlined in his second grievance.
7The Employer does not dispute that the Grievor's schedule was changed to ensure that he did not have to work on the five statutory holidays in question in these two grievances. However, that was done in accordance with the terms of the collective agreement between the Union and Employer.
8There is no evidence before me of any local agreement regarding the Kitchen department that would override the terms of the collective agreement which entitles employees like the Grievor to have statutory holidays off. As well, the Grievance Settlement Board has addressed this issue in the past, and has held that certain types of employees are entitled to paid statutory holidays off from work, and that there is no requirement that the Employer keep a regularly scheduled worker on a statutory holiday shift, and pay them premium rates of pay, unless there is a requirement for that worker's services because someone else is not available to do the work.
9Having considered the submissions of the parties, I find no breach of the collective agreement in these two grievances, and they are hereby denied.
Dated at Toronto, Ontario this 27th day of June, 2019.