P/0082/96, P/0099/98

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Richard Mothersole & John Kennedy

Grievor

• and -

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

Employer

BEFORE

D.J.D. Leighton

Vice-Chair

FOR THE GRIEVOR

John Kennedy

FOR THE EMPLOYER

Christopher Jodhan, Counsel Legal Services Department Management Board Secretariat

HEARING

May 19, 2000

Decision

Mr. John Kennedy and Mr. Richard Mothersole were employed at the Metropolitan Toronto West Detention Centre (TWDC) as Operational Managers (OM-16, Schedule 5) during the Ontario Service Employees Union (OPSEU) strike which occurred from February 25, 1996 to March 31, 1996. Mr. Mothersole filed his grievance on May 6, 1996, claiming that given the extreme hardship he endured during the OPSEU strike that he should be compensated at time and a half for all hours of the strike (847.5 hours). Mr. Kennedy filed his grievance on December 7, 1998 claiming that operational managers at Mimico Correctional Complex were paid time and a half for 160 hours each week and given 8 hours lieu time per week or 800 hours of overtime and 40 hours of lieu time for the whole strike, and that therefore he was entitled to the same compensation.

The employer took the position hat the grievors had been paid properly under Order-in Council 2161/90, and the board’s decision in O'Donnell and Ministry of Solicitor General and Correctional Services (1997) P/0023/96 (Leighton). There is no provision in the OIC for payment of overtime when the operational managers leave the institution. The issue before this board is whether the grievors should be compensated for time not spent in the institution, when they were permitted to go home.

Mr. Kennedy testified that TWDC is a maximum security institution which housed at the time approximately 800 offenders, including some of the most dangerous in the system. Before the strike began the operational managers were called to a meeting by the superintendent of the institution, Mr. Dennis Phillipson. Mr. Kennedy testified that when the subject of compensation for work during the strike was raised, Mr. Phillipson said that the operational managers would receive "significant recognition." He testified that they normally got paid for overtime so they understood "significant recognition" to mean something more than simply overtime pay for overtime worked.

Mr. Kennedy testified that the operational managers at TWDC went to the meeting of February 25, the day before the strike began and did not leave again for twelve to fourteen straight days. He worked 20 hours a day under difficult and stressful circumstances. He slept in a trailer, normally used as an office, which was so small that he could not close the door when he lay down to sleep. At one point in the strike there was a significant problem getting food across picket lines. On one occasion Mr. Kennedy testified that he served pancakes the size of a hockey puck to 180 young offenders. That was all they had to give them. Mr. Kennedy testified that on the occasions he went home he was so exhausted that all he did was sleep. In cross-examination Mr. Kennedy acknowledged that Mr. Phillipson never promised to pay operational managers for time spent at home at time and a half.

Mr. Mothersole testified that he also experienced extreme discomfort during the strike. He shared a small room with two others. There were three mattresses crammed into the space. They had no sheets. Mice crawled over them as they slept. The longest period of time that Mr. Mothersole was away from the institution during the strike was 30 hours. He also testified that when he did go home he slept almost the entire time, only waking to eat. It was Mr. Mothersole's view that going home was essential to the managers being able to continue working. If they had not they would have collapsed.

Mr. Mothersole also acknowledged in cross-examination that Mr. Phillipson at no time promised to pay operational managers at time and a half for time spent out of the institution.

Mr. Mothersole was questioned about a summary of his overtime hours taken from time sheets signed by the grievor, Mr. Phillipson and other senior managers in the Ministry. Mr. Mothersole said the time sheets were not accurate, but he acknowledged that he did sign them. He was of the view that the time sheets reflected the schedule, which was not adhered to after the first few days of the strike. Mr. Mothersole testified that he was not paid for 18 hours of overtime work while he was in the institution.

Mr. David Hanafin, an OM-16, Schedule 5, Operational Manager who worked at Mimico Correctional Complex during the strike also gave evidence on behalf of the grievors. Mimico is a medium security institution housing approximately 130 inmates. It was his evidence that he did an eight hour shift on February 26th, the first day of the strike, and then went home. He was called back that evening and worked in the institution, without going home, until the next Sunday. Operational managers at Mimico slept in an empty dormitory during the strike. They were provided with clean sheets, towels, toiletries and cigarettes. During the strike he went home four times, but was ready to be called back any time, even during those four rest periods. By the second or third day at Mimico, there were increasing problems crossing the picket lines and work refusals in the institution.

The operational managers spoke to Superintendent Fred Williams about how they would be compensated sometime in the first two or three days of the strike. They had heard a rumour that they were not going to be paid at the overtime premium rate of time and a half. Superintendent Williams assured them that they would be paid time and a half for the overtime. Mr. Hanafin testified that the operational managers at Mimico were paid for the entire time of the strike at the premium rate of one hour and a half of the regular pay.

Mr. Hanafin testified that he did not keep track of the hours he worked during the strike, but the Superintendent's secretary did. Mr. Hanafin agreed on cross that the strike lasted 35 days or 847.5 hours. He said that he was locked in for most of the strike. He acknowledged that his time sheets showed that he had been paid for working 754 hours overtime, not for 840. Mr. Hanafin did not think the time sheet accurately reflected the work he did. But he did acknowledge signing the time sheets.

Ms. Kimberely O'Connell, Senior Human Resources Consultant with the Ministry was charged with the responsibility of overseeing the implementation of the O’Donnell decision in 1998. This required recalculating overtime for Schedule 5 OM16s. Ms. O’Connell testified that Mr. Hanafin worked 802 hours during the strike. He was paid for 754 hours of overtime at time and a half. Ms. O'Connell testified that Mr. Hanafin was not paid for the time when he left Mimico to go home.

In reply evidence Mr. Hanafin testified that he did not recall beginning his shifts at midnight as the work sheet suggested. He seemed to remember going home about 4 times to sleep at home at night, but the time sheets did not reflect this. He acknowledged again in cross that he signed these time sheets.

The Grievors' Submission

Mr. Kennedy argued that operational managers at Mimico were paid for the whole strike and therefore he and Mr. Mothersole were entitled to be treated the same. He submitted that Mr. Fred Williams, Superintendent of Mimico approved these payments and senior management in the Ministry also approved them. If senior management approved payments for the whole strike for one institution then they should be approved for all institutions.

Mr. Mothersole submitted that if Mr. Hanafin was home overnight on four occasions, he was paid while he was away. The time records do not show that Mr. Hanafin was away overnight when he was, in fact, away.

The Employer’s Submission

The employer argued that OIC 2161/90 provided for compensation for overtime to be paid at time and a half. There is nothing in the OIC which provided for overtime to be paid when managers go home even for short rests. Counsel for the employer cited Macklin et al. and Ministry of Solicitor General and Correctional Services (1999) P/0100/96 et al. (Leighton) which decided that there is nothing in OIC 2161/90 which would authorize payments for overtime for time not worked out of the institution.

Counsel for the employer submitted that although the grievors argued that all operational managers at Mimico got paid for the duration of the strike, the evidence was that Mr. Hanafin did not get paid this way. He got paid for 754 hours of overtime.

Counsel argued further that there had been no promise to the grievors to pay them overtime for the duration of the strike, and therefore there was no estoppel established. Therefore, counsel asked the board to dismiss the grievances.

Decision

The issue before the board is the same question which was addressed in Macklin et al. The question is whether operational managers should be compensated for the whole period of the strike for periods of time that they were not in the institution. The grievors here are in part seeking to be compensated for all the hours of the strike because of the long hours and difficult circumstances under which they worked. This board has recognized in prior decisions and the evidence in this case shows that many operational managers worked in appalling conditions and for long hours during the strike. OIC 2161/90 gave the government the discretion to pay overtime and premium payments to certain eligible management employees. However, there is nothing in OIC 2161/90 which provided that overtime pay should continue when managers went home to rest and sleep. Further, the grievors acknowledged that this was never promised. The assurance from Mr. Phillipson that they would receive “significant recognition” for all their hard work is not enough to allow the board to find in the grievor’s favour. Promises for payments beyond what the OIC provided must be clear and unequivocal. There was no evidence provided of such a promise.

The grievors are also seeking compensation for the whole strike period because they believe the operational managers at Mimico were paid 800 hours of overtime and given 40 hours of lieu time. However, the evidence did not establish that operational managers at Mimico were paid this way. Although Mr. Hanafin seemed to remember that he went home four times during the strike, his evidence was not clear. It is not surprising so long after the event. So the best evidence is the time sheet, recording his hours during the strike which Mr. Hanafin signed and which was used to calculate his overtime pay. Mr. Hanafin was not paid for the time he went home. The evidence is clear that he was paid for 754 hours of overtime and not 800, as alleged by the grievors. Thus the evidence establishes that the operational managers at Mimico were not paid for the whole duration of the strike.

Mr. Mothersole testified that he has not been paid for 18 hours of work done in the institution. The parties agreed that the issue for me to decide in this case was only whether the grievors were entitled to overtime pay for the hours spent outside the institution. Counsel for the employer conceded that if Mr. Mothersole worked the 18 hours, as overtime, then he ought to be paid. No evidence was provided to me on this issue, since the parties agreed to attempt to resolve this part of the grievance on their own. I shall remain seized on this part of the grievance of Mr. Mothersole, should the parties require assistance.

Thus, having carefully considered the evidence and the submission of the parties and for the reasons noted above, I hereby dismiss the grievances, except as provided above.

Dated at Toronto this 25th day of May, 2000.