GSB# 2023-01180

UNION# 2023-0617-0006

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Kucherawy)

Union

• and -

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

Employer

BEFORE

Brian Sheehan

Arbitrator

FOR THE UNION

Gregg Gray Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Justin O'Gorman Treasury Board Secretariat Employee Relations & Negotiations Team Lead

HEARING

June 18, 2024

Decision

1The Employer and the Union at the Sudbury 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 it is without prejudice or precedent.

2Jhalayn Kucherawy (the "Grievor") is a Correctional Officer 2 employed at the Sudbury Jail.

3Article 51 of the collective agreement provides that an employee who is entitled to parental leave and provides proof that they are in receipt of Employment Insurance (EI) parental leave benefits shall be paid an allowance in accordance with the Supplemental Unemployment Benefit Plan (i.e., “EI top-up pay”).

4On April 11, 2023, the Grievor emailed the Employer’s administration seeking confirmation that everything was in order regarding his application for parental leave. He claims he was advised there were no issues with his application.

5The Grievor applied for Employment Insurance parental leave benefits on April 16, 2023.

6The Grievor’s parental leave commenced on April 24, 2023.

7On May 11, 2023, the Grievor indicated that Service Canada advised him that his application for parental leave benefits had been denied because the Employer had not yet submitted his Record of Employment (ROE). On the same day, the Employer advised him that he would not receive any top-up pay as of the May 11 pay period because he had not submitted any EI pay stubs.

8On May 12, 2023, the Grievor was advised by Service Canada that the ROE was received that day.

9By May 25, 2023, the Grievor had not yet received any “top-up pay”. He was advised after making inquiries that the cutoff date for submitting information to the payroll department pertaining to the May 25, 2023, pay period was May 17, 2023. The Grievor indicated that he had forwarded his EI pay stubs to the Employer on May 16, 2023.

10The Grievor subsequently requested that the Employer provide him with an off-cycle pay arrangement so that he could deal with the impact of not receiving any monies from the Employer. On May 31, 2023, the Grievor was advised that the Employer would not be making arrangements for him to receive an off-cycle payment.

11The Grievor asserted that the actions of the Employer delayed the receipt of the “top-up” monies that he was entitled to under the collective agreement, and that, the Employer's handling of the situation as a whole was unprofessional. He stated that the delay in receiving his entitled monies caused him and his family considerable stress. In terms of relief, the Grievor is seeking 24 hours of overtime pay in relation to the time he expended in his attempts to have the Employer forward his ROE to Service Canada and his efforts to receive his top-up monies in a timely manner.

12The Employer asserted there was no delay on their end with respect to the handling of the process associated with the Grievor receiving parental leave top-up pay. It was submitted that an ROE could only be completed upon the date the Grievor stopped working. It was further claimed that the Employer’s records indicate that the Grievor’s ROE was uploaded to Service Canada on May 3, 2023. It was submitted that the ROE was, therefore, processed during the pay period during which the Grievor’s parental leave commenced. The Employer further noted that Service Canada’s webpage notes that a claimant can expect to receive the first payment of parental leave benefits about 28 days after the claimant has applied for benefits.

13The Grievor’s sense of frustration at having to wait for the receipt of EI parental benefits and the related top-up pay provided for under the collective agreement is appreciated. In terms of any delay associated with processing his application for EI benefits, any such delay would appear to be ostensibly related to the standard administrative process associated with Service Canada processing an application for EI parental benefits. With respect to the Employer’s handling of his claim for EI top-up pay, the only possible criticism that could be levelled against the Employer is that there was a failure to immediately process the EI pay stubs the Grievor claimed he submitted on May 16, 2023, in order to receive top-up pay as of May 25, 2023. Holding the Employer to a standard of moving with such dispatch may be unrealistic. Furthermore, even if it could be suggested that the Employer in some manner “dropped the ball” by not immediately processing the information forwarded by the Grievor, any such error is far removed from the type of egregious mishandling of a claim for benefits that may in certain circumstances warrant the consideration of an award of remedial relief. Additionally, an employee is not generally entitled to be compensated for time spent communicating with representatives of the Employer or Service Canada regarding the processing of an EI application for parental leave benefits. Finally, there is no obligation per se under the collective agreement obligating the Employer to make arrangements for an off-cycle payment to an employee awaiting “EI top-up pay”.

14In light of the above, the grievance is hereby dismissed.