GSB# 2022-6671; 2022-6672; 2022-6673; 2022-6674; 2022-6675; 2022-6676

UNION# 2022-5112-0271; 2022-5112-0272; 2022-5112-0273;

2022-5112-0274; 2022-5112-0275; 2022-5112-0276

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Saraan et al)

Union

• and -

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

Employer

BEFORE

Annie McKendy

Arbitrator

FOR THE UNION

Chris Bryden Ryder Wright Holmes Bryden Nam LLP Counsel

FOR THE EMPLOYER

Joohyung Lee Treasury Board Secretariat Legal Services Branch Counsel

HEARING

July 6, 2023, February 13, June 4 and July 11, 2024

Decision

1This Decision addresses whether or not Employees at Toronto South Detention Centre (TSDC) are entitled to one and one half (1.5) time compensation for missed meal breaks in two different scenarios. In the first scenario, the Grievors missed a meal break because they were assigned to escort duties outside of the institution. The parties reached an agreement with respect to the appropriate amount of compensation for missed meal breaks while on escort. However, a dispute remains as to whether a remedy for the missed meal breaks should be extended to incidents which occurred more than thirty (30) days prior to the filing of the Grievance.

2The second scenario at issue arises when employees miss a meal break but remain within the correctional institution. The Union submits that in this circumstance employees are also entitled to both one and one half (1.5) time for the inconvenience of missing a break and to thirty (30) minutes of overtime pay for having worked beyond the usual length of their shift.

3There are six (6) individual Grievances before me. Each Grievance lists multiple dates upon which the Grievors allege to have been improperly paid for a missed meal break. The grievances were referred to arbitration pursuant to article 22.16 of the collective agreement. In keeping with this provision, the parties proceeded in an expedited manner on the basis of stipulated facts and documents submitted on consent. This Decision is issued without precedent and with brief reasons.

Background

4The Grievances before me were filed following a decision by the Grievance Settlement Board in Ontario Public Service Employees Union (Archer et al) v. Ontario (Solicitor General), 2021 CanLII 17414 (ON GSB) ("Archer"). In this decision the Board found that OPSEU members at Maplehurst Correctional Centre must be paid at time and one half, or the overtime rate, if they missed their scheduled unpaid meal breaks while on escort duties. This payment was found to be required "in addition to the one-hour compensation in recognition for the missed meal break as provided for in paragraph 6 of the "escort" Memorandum of Settlement dated July 11, 2004."

5The parties to the present matter resolved this issue as it related to the TSDC, in the course of the hearing.

Retroactive Remedy

6A dispute remains, however, as to whether the Grievors are entitled to the same relief, where meal breaks were missed while on escort duties, retroactive to February 25, 2021 when the Archer decision was released. The Union acknowledges that the Grievances at issue were filed on June 20, 2022 and June 21, 2022, but requests that I exercise discretion to extend the timeline for filing, such that they may receive a remedy for instances that fall more than thirty days prior to the filing of the Grievances. In the alternative, the Union seeks a remedy back to April 1, 2022, the date around which the Local President of the Union specifically raised with management the concern that the Archer decision was not being applied to the employees of Toronto South Detention Centre.

7The Union submits that the parties to the Archer decision are the same as in the present matter and that the decision was issued under the same collective agreement. The Employer, therefore, should not benefit from its own failure to implement the decision across institutions. The Union suggests that I apply the analysis used in determining whether or not to extend the timeline for filing a Grievance. In support of their argument, the Union relies on the following cases: Floralia Plant Growers Ltd. and UFCW, Local 1518 (Vacation Pay), 2015 CarswellBC 3852, 125 C.L.A.S. 209, 267 L.A.C. (4th) 115; Ontario Public Service Employees Union (Robbins) v Liquor Control Board of Ontario, 2015 CanLII 36165 (ON GSB), Manitoba v. M.G.E.U., 2008 CarswellMan 685, [180 L.A.C. (4th) 150, 96 C.L.A.S. 215; ONA and Humber River Hospital (Overpayment of wages), 2016 CarswellOnt 5601, 126 C.L.A.S. 305.

8The Employer submits that the extension of timelines is not the right legal framework from which to approach the issue of retroactivity of remedy. Pursuant to the GSB's case law, the question is not whether the Grievances are untimely, but rather whether it is appropriate for a remedy to predate the Grievances by more than thirty (30) days. The Employer submits that I should apply the Board's thirty (30) day rule and limit any remedy flowing from the award to thirty (30) business days prior to the filing of the Grievances, which corresponds to the time limit for filing a grievance pursuant to s. 22.2 of the collective agreement. Pursuant to the thirty (30) day rule, the Board should only award a remedy beyond thirty (30) days prior to the filing of the grievance in exceptional circumstances, which include considerations of equitable principles.

9In support of their position, they rely on the following cases: Ontario Public Service Employees Union (Fazakas et al.) Union v. The Crown in Right of Ontario (Ministry of the Attorney General), GSB # 1992-2964 ("Fazakas"); OPSEU (Hadwen et al. v. Crown in Right of Ontario (Ministry of Revenue), GSB # 248-89 et all; OPSEU (Elliot -et al) v. The Crown in Right of Ontario (Ministry of Correctional Services), GSB #926-92 ("Elliot"); OPSEU (Union Grievance) v. The Crown in Right of Ontario (Ministry of the Solicitor General & Correctional services), GSB # 2520-94.

10While either analysis leads to a similar place, the application of the thirty (30) day rule is well established at the GSB, and more closely aligns with the present facts. The cases referred to by the Employer each dealt with the circumstances in which the Union sought a remedy retroactive to the date of an earlier award. In each case the thirty (30) day rule was applied. The existence of an earlier award, even between the same parties and under the same collective agreement did not amount to exceptional or equitable circumstances required to displace the rule.

11I have considered the Union's position that the Employer is benefiting from its failure to implement a decision between the same parties, and whether that constitutes an exceptional circumstance. However, I note that in Elliot, supra, the GSB upheld the thirty (30) day rule even where the earlier decision was between the same parties. In that case the failure of the employer to implement an earlier decision in a different institution was not found to constitute exceptional circumstances. This principle was noted again in the Fazakas decision, supra, at page 17.

12I have also considered the Union's alternative argument that the remedy should be awarded retroactively to April 1, 2022, given that the Union brought the issue to management's attention some time in April. However, the Union did not provide evidence establishing the date upon which the issue was in fact brought to management's attention beyond asserting there was a discussion in April. The Union did provide an email sent to OPSEU membership dated May 2, 2022, advising that members should be claiming overtime for missed meal breaks and filing grievances where it is denied. No explanation was provided as to why a grievance was not filed at this time. I decline to award a remedy retroactive to April 1, 2022.

13For these reasons I find that no remedy is owed beyond the thirty days prior to the filing of the first Grievances, June 20, 2022.

Missed Meal Breaks within the Institution

14The second scenario before me is whether or not Grievors who miss a meal break within the institution are entitled to paid overtime for that half hour. The Union asserts the Employer has a practice at TSDC of paying one hour of compensating time for missed meal breaks, as with escorts. The Union further asserts that the purpose of this payment is to compensate for the inconvenience of forgoing a lunch break. There is no agreement between the parties as to whether there is in fact a consistent past practice or whether the Employer would be estoppel from changing the practice, and the parties specifically chose not to put this evidence before me. However, there is no dispute that the Grievors who missed meal breaks that fall into this second scenario were in fact paid one hour on days where they missed a meal break. The Union asserts that the purpose of this one hour of pay is similar to that paid on escorts, as set out in the escort Memorandum of Settlement applied in the Archer decision and relies on a series of memos regarding compensating pay for missed meal breaks on escort to establish this purpose.

15The Union further submits that the purpose of the one-hour payment should be inferred from the fact that it is equivalent to one hour of straight time. Were its purpose to compensate for overtime, it would have been paid accordingly, for forty-five (45) minutes.

16For the above reasons, the Union submits that the Grievors should be entitled to overtime payment for the thirty-minute break in addition to the one hour already paid.

17The Union relied on the following cases in addition to the Archer decision in support of the argument that both premiums are attracted in the circumstances: Town of Midland and Ontario Public Service Employees Union, Local 328, 1987 CanLII 8845 (ON LA), 1987 CarswellOnt 4165, 31 L.A.C. (3d) 251, 7 C.L.A.S. 92; Ottawa Civic Hospital and Retail Wholesale Canada, Local 414, 1996 CanLII 20427 (ON LA), 1996 CarswellOnt 5797, 46 C.L.A.S. 420, 61 L.A.C. (4th) 101; Headwaters Health Care Centre v. O.N.A., 2004 CarswellOnt 9756, [2004] O.L.A.A. No. 332, 77 C.L.A.S. 305; Canadian Union of Public Employees, Local 181.17 v. Victorian Order of Nurses, Ontario Branch, Brantford, Haldimand and Norfolk Sites, 2020 CanLII 57712 (ON LA).

18The Employer acknowledged that the Grievors are working in excess of their scheduled hours by thirty (30) minutes when they work over their unpaid lunch break. The Employer further acknowledged that in such a circumstance, employees are entitled to time and one half for that half hour, pursuant to Article COR8 of the Collective Agreement. However, the Employer submitted that because the Grievors received a payment greater than what they would have received for a half hour of overtime, they are not entitled to any additional payment.

19Given that the Parties chose to exclude evidence of past practice, the only evidence before me are memos relating to pay for escort duties and the inferences the parties ask me to draw about the purpose of the one hour pay. There is insufficient evidence before me to establish the purpose of the one hour of straight time pay. In the absence of that evidence I cannot conclude that the purpose of the one hour payment is to compensate for overtime.

20I conclude that the Grievors are entitled to one and a half (1.5) time pay if they are required to work over their unpaid meal break, pursuant to COR8. I therefore allow the Grievances insofar as the Grievors are entitled to overtime pay for any missed meal breaks within the institution. I leave the parties to determine the issue of entitlement to the one hour of pay.

21The Grievances are therefore dismissed in part. The Employer is not required to provide the Union with a retroactive remedy more than thirty (30) days prior to the filing of the Grievances. The Grievances are also allowed in part. I order that the Employer pay the overtime rate for the thirty (30) minute missed meal breaks within the institution for affected shifts set out in the Grievances.