GSB# 2015-2259; 2015-2260; 2015-2261; 2015-2262

UNION# 2015-0719-0019; 2015-0719-0020; 2015-0719-0021; 2015-0719-0022

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Nowe)

Union

• and -

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

Employer

BEFORE

Brian P. Sheehan

Arbitrator

FOR THE UNION

Alex Andrews Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Jennifer Charlton Treasury Board Secretariat Employee Relations Advisor

HEARING

June 24, 2021

Decision

1The Employer and the Union at the Kenora Jail 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, as such, it is without prejudice or precedent.

2The grievor is employed as a Correctional Officer at the Kenora Jail.

3The facts pertaining to all four grievances that are subject to this decision are ostensibly the same and not in dispute.

4Since 2006, the parties have adopted and abided by a Provincial Overtime Protocol (POP) with respect to overtime opportunities at the various correctional facilities across the province. The relevant provisions of the POP that were in place at the time of this dispute are as follows:

4. Overtime calls will be made on a sequential basis. The first person called will be the most senior person on the overtime list having the least number of overtime opportunity hours.

5. The manager will allow the phone to ring no less than five (5) times before moving to the next employee on the list. If an employee has message capability, the manager will leave a message indicating that an overtime opportunity is available. If the manager is aware that an employee is at work when the overtime offer is made, the manager will page/notify the employee at work rather than calling the contact number.

6. a) Where the manager leaves a message or a page, there will be a five (5) minute "call- back" time allotted prior to moving to the next employee on the list. Overtime hours will be assigned to the employee(s) who responds first.

b) Four (4) hours prior to shift commencing, the requirement to wait five (5) minutes after leaving a message or a page for an available overtime opportunity may be waived. For clarity, the Employer must follow all other requirements of the Provincial Overtime Protocol.

5In all of the incidents that gave rise to the grievances, the hiring manager did not abide by the language at Paragraph 7 of the POP when after leaving a voicemail message for the grievor, he moved on to call other employees on the list before the five-minute "call-back" window expired. In total, over a ten-day period in July 2015, there were six instances of the hiring manager not waiting the required five minutes before moving on. Common to all six incidents is the fact the grievor did not call back within the five-minute window.

6The dispute that has arisen between the parties is with respect to the appropriate remedy that should flow from the failure of the Employer to comply with the five-minute "call-back" window set out in Paragraph 7 of the POP.

7With respect to all the incidents the grievor complained about, the Employer takes the position that since the grievor failed to call back within five minutes of the voicemail message he received, he should not be compensated as a result of the non-compliance with paragraph 7 of the POP; rather, the appropriate remedy with respect to all the incidents should only be declaratory in nature. The Employer argued that a fundamental principle of arbitral jurisprudence is that the purpose of awarding monetary compensation as a remedy is to rectify the adverse impact suffered by an employee as a result of a breach. The Employer ostensibly accepts that if, in fact, the grievor had called back within the allotted time, and the overtime opportunity had already been offered and accepted by another employee, then an award of monetary relief may have been in order. In this case, however, it was asserted that the grievor was, in fact, not adversely affected by the breach since in all the incidents, he did not respond within the five-minute "call-back" window. Therefore, the Employer asserted that if monetary compensation were to be awarded, the grievor would, in effect, be receiving a "windfall" that he was not otherwise entitled to in the circumstances. Further to this point, it was claimed that to award compensation as a remedy in these types of circumstances would encourage employees to go on a "fishing expedition". As in, employees may be inclined to examine the relevant records after the fact in an attempt to find scenarios wherein the Employer may have failed to comply with the "call-back" window, despite the fact that the employee may not have done his/her part by calling back within the five-minute window to take advantage of the offered overtime opportunity.

8The Union asserted that in accordance with established arbitral case law and the practice of the parties, the appropriate remedy with respect to breaches of the POP would be a monetary award for the lost overtime opportunity. Further to this point, it was submitted that there is no dispute that if an employee is wrongly bypassed; as in, not being called at all by the hiring manager, the accepted remedy is that the employee receives compensation for the missed overtime opportunity.

9The arguments articulated by the Employer are appreciated and have certain cogency. In particular, it is recognized that in this case, the grievor arguably would be receiving an unwarranted "windfall" with respect to each incident, as he did not call back within the five-minute "call-back" window. That point noted, it is my determination that given all the relevant circumstances, the position of the Union should prevail. Central to that conclusion is the overall importance of the POP. The parties have invested a great deal of time and effort in developing and maintaining the viability of the POP as a means of distributing overtime opportunities in a fair, equitable, and transparent manner. This point was succinctly captured by Arbitrator Briggs in Re Ontario in the Right of Ontario (Ministry of Correctional Services) and OPSEU (Union) February 18, 2009, GSB#2004-3577 (Briggs):

By all accounts, the purpose of the overtime protocol is to ensure that overtime is distributed to those wishing to do the work in a fair, equitable and consistent manner. It was very clear from the evidence that much time and effort has been taken to develop a system that is operationally feasible and highly efficient in its application. The parties are to be commended for these efforts.

Further to the above, the ongoing viability of the POP is constructed on the premise that the Employer will endeavour to abide by the agreed-to processes. Accordingly, in this case, in deciding the appropriate relief which should flow from the breaches of paragraph 7 of POP, the objective of ensuring the integrity of the POP is maintained through the Employer continuing to abide by its provisions trumps the otherwise legitimate arguments raised by the Employer. Declaratory relief, especially given that in this case, the grievances involve repeated instances of the hiring manager immediately moving on to the next employee without waiting for the "call-back" window to expire, would not be appropriate in terms of emphasizing to the Employer the importance of ensuring ongoing compliance with procedures as set out in the POP. More specifically, it is imperative that there are consequences flowing from a failure to follow the provisions of the POP, and that, simply issuing declaratory relief in the circumstances of this case would not be sufficient.

10In conclusion, the grievances are upheld, and the grievor is to be made whole with respect to the failure of the Employer to abide by the provisions of the POP as outlined in the respective grievances. I remained seized with respect to any dispute regarding the interpretation or implementation of this award.