Arbitrator decides two groups can be treated differently
The City of Windsor had one group of employees in its Employment & Social Services department known as employment services caseworkers (ESCs). Another group called the employment training services caseworkers (ETSCs) worked in the same department, but only the ETSCs were offered overtime.
The Canadian Union of Public Employees (CUPE), Local 543, claimed this practice violated the collective agreement, which stated overtime "be distributed equitably among employees in the same division, within the same classification, who are performing similar duties."
The union said the ESCs and ETSCs were in the same division, within the same classification and performed similar duties, so the ESCs should be offered overtime in equal proportion to the ETSCs.
But the city said the two groups were employed in different divisions, performed different duties and were not interchangeable in their jobs. Further, it said the unique demands of the work of the ETSCs required that overtime be granted at certain times to get their work completed.
Both groups had the same classification and job postings. But there had been no interchange between the ETCs and ETSCs part because of different computer programs and confidentiality concerns.
In addition, while both areas offered employment counseling, there were “nuances and differences in the services offered, the rigours of the reporting requirements and the targets imposed by the funding ministries,” said arbitrator Lyle Kanee.
Given the “dearth” of evidence in defining “division” and the broader implications of the definition, Kanee did not determine whether the two groups were in the same division. However, he did conclude they performed similar duties, even if they weren’t identical.
As for the issue of equitable distribution of overtime, the ESTCs were granted overtime when additional work was required to close out or establish the status of client files, in order to meet target and reporting requirements imposed by the ministry, said Kanee.
ESCs did not have as rigorous targets or reporting requirements and there was no evidence that when overtime was granted to ESTCs, there were similar demands on ESCs to complete work.
“The ESCs could not have efficiently performed the work of the ESTCs. The caseworkers in the two areas are not interchangeable. The purpose of granting overtime to the ESTCs would have been undermined if the overtime was granted to ESCs with an expectation that they would perform the work of ESCTs,” he said.
Therefore, it was fair and equitable for the city to grant overtime to ESCTs, and not to ESCs, said Kanee, who ruled the city did not violate the agreement and the union’s grievance was denied.
Reference: The Canadian Union of Public Employees, Local 543, and the City of Windsor. Lyle Kanee — arbitrator. Stephen Krashinsky for the union, Susan Hirota for the employer. June 6, 2016.
