GSB# 2019-2378

UNION# 2019-0368-0355

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Hilditch)

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 Amie Hilditch is employed as a Rehabilitation Officer 2 at the Central East Correctional Centre (CCEC).

3The grievor went off work in July 2019 due to an injury.

4Upon returning to work on October 22, 2019, she worked pursuant to an Early & Safe Return to Work and Workplace Accommodation Plan.

5The Accommodation Plan set out a work hardening program wherein she worked only certain days of the week. There was no express prohibition regarding the grievor working overtime in the Accommodation Plan. The grievor, however, was marked not available for overtime throughout the period of the work hardening.

6Furthermore, no issue was raised by the grievor or the Union regarding her not being offered overtime during this period.

7The primary issue for the Union is that the offer of overtime was made to employees on Tuesday November 26. The Overtime Protocol applicable to the grievor stipulates that the period to complete the overtime opportunity will be no greater than 7 calendar days. The Union suggests that effectively an employee has 7 days to carry out the overtime assignment, which is often utilized to complete necessary work on a particular file.

8The Union notes that the grievor’s work hardening program ended as of Friday November 29; accordingly, she could have had 4 days to complete the work within the applicable 7 days. Beyond asserting that the grievor could have completed the work on the days in question, the Union additionally relies on the fact there was no specific reference in the work hardening program stipulating that the grievor would not be eligible for overtime; despite the fact that such overtime restrictions are relatively commonplace in Accommodation Plans.

9The Employer submitted it was noteworthy that the grievor declined an offer of 10 hours of overtime work on December 2.

10The result in this matter ultimately turns on an assessment of the reasonableness of the Employer’s position that it did not make operational sense to offer the overtime in question to the grievor. Upon reviewing the relevant facts, it is my assessment that the Employer’s decision passes the test of being reasonable. The Employer, throughout the period that the grievor was undergoing the relevant work hardening program, did not offer the grievor any overtime opportunities. No grievance was filed with respect to that practice. When the particular overtime opportunity in dispute arose on November 26, the grievor’s work hardening program was still in effect, as it was not designated to end until Friday November 29. Additionally, the grievor was not scheduled to work on Saturday November 30 or Sunday December 1. Against that factual background, the Employer’s decision not to offer that assignment to the grievor on November 26 was, in my view, not unreasonable, given the limited available time the grievor would have had to perform the work.

11In light of the above, it is my view that the Employer did not breach the applicable Overtime Protocol or the collective agreement. Accordingly, the grievance is, hereby, dismissed.