Ontario Public Service Employees Union (Romagnuolo) v. The Crown in Right of Ontario (Ministry of the Solicitor General), 2020 CanLII 20362

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Romagnuolo)

Union

• and -

The Crown in Right of Ontario (Ministry of the Solicitor General)

Employer

BEFORE

Brian P. Sheehan

Arbitrator

FOR THE UNION

Gregg Gray Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Sia Romanidis Treasury Board Secretariat Employer Relations Advisor

HEARING

January 16, 2020

Decision

1The Employer and the Union at the Central East Correctional Centre agreed to participate in the Expedited Mediation/Arbitration process in accordance with the negotiated Protocol. It is not necessary to reproduce the entire Protocol. Suffice to say, that the parties have agreed to a True Mediation/Arbitration process wherein each party provides the Arbitrator with their submissions setting out the facts and the authorities they respectively will rely upon. This decision is issued in accordance with the Protocol and with Article 22.16 of the collective agreement; and it is without prejudice or precedent.

2The grievor, Kimberly Romagnuolo, was then employed as a Rehabilitation Officer 2 at the Central East Correctional Centre (CCEC).

3The grievances in question relate to two different overtime opportunities that the Union asserts that the employee should have been offered, pursuant to the Overtime Protocol applicable to the grievor.

4The first overtime opportunity related to 5 hours of work which was offered to employees on April 3, 2018. There is no dispute that the grievor was off work sick that day. It would appear that the grievor was absent on April 5 and 10 as well due to illness.

5The Employer notes that the grievor was offered a 5-hour overtime opportunity on April 4. It is the position of the Employer that this particular offer effectively “rectified” any defect associated with the grievor not being offered overtime on April 3.

6The Union asserts that there is no mention in the Overtime Protocol suggesting that the Employer is not required to offer overtime opportunities to employees off work sick. The Union suggests it was common practice in the institution that future overtime opportunities are offered to employees while absent due to an illness. It is further noted that with respect to this particular group of employees, there is, generally, a seven-day window to complete the assigned overtime task.

7The Union also suggests that the offer of an overtime opportunity to the grievor on April 4 is not relevant to the failure of the Employer to offer the grievor the overtime opportunity on April 3. Further to this point, it is submitted that the accepted practice of the parties is such that it is inappropriate for the Employer to assert that the grievor was made “whole” by way of a subsequent offer of overtime.

8Reviewing the relevant facts, it is my assessment that the Employer breached the relevant Overtime Protocol with respect to failing to offer the grievor the 5-hour overtime opportunity on April 3. The fact that the grievor was off work due to illness did not preclude her right to be offered future overtime opportunities in accordance with the provisions of the relevant Overtime Protocol. Additionally, I accept the Union’s position that the Employer’s offer of the 5-hour overtime opportunity on April 4 did not rectify and render the grievor “whole” regarding the missed overtime opportunity on April 3.

9Against the above background, Grievance #2018-0368-0097 is upheld. The Employer is, hereby, directed to pay to the grievor the sum equal to 5 hours of overtime pay.

10The Union agreed that if, in fact, the Employer had properly offered the grievor the overtime opportunity of 5 hours on April 3, the grievor would not have been entitled to the 8-hour overtime opportunity that is the subject matter of Grievance #2018-0368-0238. Accordingly, that grievance is, hereby, dismissed.

11I remain seized with respect to any dispute regarding the remedy set out at paragraph [9] above with respect to Grievance #2018-0368-0097.