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HomeMy WebLinkAboutHaslam 05-10-19 . , IN THE MATTER OF AN ARBITRATION BETWEEN: Renfrew County and District Health Unit (The Employer) -and- Ontario Public Service Employees Union (The Union) AND IN THE MATTER OF A GRIEVANCE CONCERNING OVERTIME PAY Ken Petryshen-Chair Sherril Murray-Union Nominee Dan Pearlman-Employer Nominee APPEARANCES: For the Union: C. LeCheminant- Chandy - Counsel M. Grace J. Haslam F or the Employer: 1. Harnden - Counsel 1. Garib C. Bloskie The hearing was held at Pembroke, Ontario, on September] 4.2005. AWARD In a grievance dated June 2, 2004. Mr. Haslam. a Public Health Inspector. claims that the Employer contravened the Co11ective Agreement by not paying him overtime pay for the entire 5.5 hours he requested for working on Sunday. May 2, 2004. The Employer did pay him 5 hours at the oveliime rate for work he performed on that day. The dispute is about whether the Employer was obliged in the circumstances to pay M1'. Haslam an additional .5 hours of overtime. More particularly. as the evidence made clear. the dispute is over whether the Employer is required to pay Mr. Haslam tÌ'om the time he ]en home until he returned home, as the Union argues. or only from when he left the ot1ìce and returned to it. as argued by the Employer. There was no dispute concerning our jurisdiction to hear and determine this grievance. We note that there is no Union grievance on this issue. Mr. Haslam was requested to participate in a public information session in Whitney on Sunday. May 2. 2004. The session was to address the topic of emergency preparation and to answer questions on health issues in emergencies. He advised Mr. M. Klatt. his supervisor. of this request and. consistent with the practice in place for a number of years. he made an advance request for overtime by fìlJing out an overtime pre- ./ authorization form. The form requires an employee to provide the date of the requested overtime. the total number of hours. with a start and completion time, and the purpose or the overtime. In addition to setting out the purpose of the oveliime. Mr. Haslam 2 indicated on the form that "pre-authorization for oveliime is requested on May 2. 2004 involving 5 hours from 11 :30 to 4:30". The request was approved. The pre-authorization form does not require an employee to indicate the location utilized for calculating the start and completion time of the overtime assignment. On Sunday. May 2, 2004, Mr. Haslam left his home in Killaloe and drove the approximately 20 minutes to his office in Barry's Bay. From there he drove to Whitney for the information session, which was scheduled to start at I :00 p.m. and end at 3 :00 p.m. The session went longer than anticipated and did not end until at least 3 :30 p.m. When it ended. Mr. Haslam returned to the office in Barry's Bay and thereafter drove home. arriving at 5:00 p.m. His time sheet dated May 13.2004. included the 5.5 hours at the overtime rate for his work on May 2. 2004. His oveliime log for May 2, 2004. records the time ,vorked as from II :30 to 5:00. Mr. Haslam was advised that he would have to obtain approval for the additional .5 hours of overtime that exceeded the pre-authorized :) hours. He completed another pre-authorization form. requesting 5.5 hours of overtime. and on May I 8.2004. Mr. Klatt did approve the 5.5 hours of overtime. However. the Employer determined that it would not pay overtime for the additional .5 hours and Mr. Haslam filed the grievance now before us. Mr. Haslam was told eventually that the Employer did not pay employees for the time it took them to drive to work. There VIlas no suggestion that the subsequent approval of the 5.5 hours of overtime by Mr. Klatt has any signitìcance. At the end of May 2004. Mr. Haslam submitted a mileage claim for that month. .., .J Included in his claim was the 158 kilometers he traveled from and back to his home \\hel1 he drove to Whitney for the information session. The Employer paid him mileage for the ] 58 kilometers. The mileage claim form also does not require an employee to specify' the location used for determining the mileage calculation. The normal hours of work for employees covei-ed by the Co11ective Agreement are 35 hours per week. Aliicle 10.03 of the Collective Agreement provides that "All timc worked in excess ofthÍJiy-five (35) hours per week shall be considered as overtime. subject to the following conditions: ...., The conditions which are then set out are not reJevant for our pUlvoses. The only reference to calculating time tì'om an empJoyee's home is in Aliicle 10:04. a "call-back" provision. This provision provides that ""v.,'here an employee is called back to work at any time outside of the employee's scheduled hours, the employee shall be paid at the rate of time and one half for each hour viorked \Nith a minimum of three (3) hours at the premium rate. Time shall be calculated ham the time the employee leaves her home until she returns." In this instance, counsel for the Union took the position that the Employer has contravened Article] 0:03. She submitted that the words "a11 time worked" in ArticJe 10:03 are ambiguous and that the Employer's consistent practice of calculating weekend overtime from the time when a Public Health Inspector leaves home until returning home assists in resolving the ambiguity in favour of the Union's intelvretation. We note that the Union did not base Mr. Haslam's grievance on a contravention of Article] 0:04. We also note that counsel for the Union did not argue that the Employer's practice ga\ê rise 4 to an estoppel until she suggested in her reply submissions that it is open to us to consider this issue. We agree with counsel for the Employer that it would be inappropriate for us to consider v\;hether there is a basis for an estoppel in circumstances where the issue is raised for the first time in argument and there was no opportunity for the patiies to calJ evidence on the issue. Mr. M. Grace and Mr. Haslam, both very long-term employees. testified about the relevant practice. They testified that overtime occurs for them approxÜllately three to tìve times per year. If oveliime arises during the workweek, they calculate their time and mileage fÌ"om the office. However. they testifìed that they have always calculated their start and completion time from home for weekend overtime work and that they were paiJ on that basis. Over the years, various supervisors have confirmed for them that their time and mileage can be calculated from their home when performing overtime work on the weekend. Mr. Haslam recalled that Mr. J. Watt. his supervisor when he started his employment. specifically directed him to claim time and mileage from home when working on weekends and that Mr. Watt characterized this as "a perk" for Public HeaJth Inspectors. Mr. Haslam and Mr. Grace indicated that they did not see and \vere not advised about a Memorandum dated August 14, 1995, relating to reimbursement for travel in which the Employer writes that travel to and from home is not reimbursed. The Employer did not call a witness to contradict the testimony about the practice given by the Union's vlritnesses. Based on the evidence, it is our conclusion that for many years. until the overtime worked by Mr. Haslam in May of 2004, the Employer has paid weekend overtime to Public Health Inspectors based on the time an employee leaves 5 home until the employee returns home. Since the overtime assignment in May of 2004 to Mr. Haslam. Mr. Haslam and Mr. Grace. and apparently the rest of the Public Health lnspectors, no longer claim for weekend overtime based on the time when they left and return home. Although the practice refelTed to above has existed for many years, the Public Health Inspectors have only recently been covered by a co11ective agreement. The Union was certified by the Ontario Labour Relations Board effective February] 9,1003. to represent Public Health Inspectors. On December] 8,2003. the parties entered into a Memorandum of Settlement ("the Memorandw11") which provided for the merging of the public health inspector bargaining unit v,lith an existing bargaining unit of the Employer's employees represented by OPSEU. Local 487. The Memorandum provides that the Public Health Inspectors shall be covered as of February 1 9,2003. by the terms and conditions of the co11ective agreement between the Employer and OPSEU, Local 487, save and except for celiain specified matters. The ove1iime work on May 2. 2004, ""hieh gave rise to his grievance, is the first occasion Mr. Haslam worked \I\ieekend overtime since the Memorandum was entered into on December 1 8,2003. The Union's position focuses on the words "A11 time worked ..... in Article 10.03 and the contention that these words are ambiguous. In our view, these words are not ambiguous, having regard to Aliicle 10.03 as a whole and the other relevant provisions in the Co11ective Agreement. particularly Article] 0.04. /---\ ( ... V~ I , 6 It would be unusual for the paliies to have intended by their use of the words "",';11 time worked... " that the dock stalis for weekend oveliime under Article 10:03 \Iv-hen a Public Health Inspector leaves home and only ends when he or she returns home. It would be out of the labour relations norm to treat the time an employee takes to get to work Üom home as "time worked'. In the context of this workplace, an employee does not usually commence work until he or she repOlis to one of the Employer's oi1Ìces. If the parties intended to include travel time to work as part of the workday in a particular situation, one would expect a clear indication of such an intention and no such intention exists in Article] 0.03. In a call back situation, the paIiies specifically provide that the work time begins aI1d ends at the employee.s home. Such a specifìc reference in Artic]e 1 0.04, and the absence of a similaI' reference in Article 10.03, further supports the conclusion that the parties did not intend that Public Health Inspectors ""'ould be paid from the time they left until they returned home when performing overtime '¥I,-or].; DlirSUant to Article I 0.03. Even if the "'lords "All time worked..." were ambiguous, the practice relied on by the Union would not be helpful in resolving the ambiguity. For a practice to be relevant, it must occur during the time a collective agreement is operative. Although the practice relied upon by the Union has been in existence for a long time. the Public HeaJth Inspectors have only effectively been covered by a collective agreement since December 8,2003. As Mr. Haslam indicated, overtime assignments are infrequent and.his u\enirnL' assignment on May 2, 2004, represented the first time he had worked weekend overtime since Pub ic HeaJth Inspectors were covered by the Collective Agreement. A further . , 7 matter to be noted is that the practice relied on by the Union is not consistent. The practice for weekend overtime is different from the practice that exists when overtime is vl'"orked during the week. A practice ",;hich differs depending on when the overtime is worked is not helpful when interpreting the opening words in ArticJe I 0.03, even if they were ambiguous. Therefore. in our view, Aliicle 10.03 does not require the Employer to pay \;veekend oveliime from the time a Public Health Inspector leaves home until he or she returns home. Given the longstanding practice, we can appreciate why Mr. Haslam expected to be paid 5.5 hours of overtime for attending the public information session on May 2.2004. However, our jurisdiction is limited to intel1Jreting the terms of the Co1lective Agreement and the circumstances in this case do not estab]ish a contravt'mion ofArticJe 10:03. For the foregoing reasons, Mr. Haslam's grievance dated June 2,2004, is dismissed. Dated at Toronto, this I 9th day of October. 2005 IL f d;yL Ken Petryshen - Chair "ShelTil Murray - I concur" Sherill Murray - Union Nominee --Dan Pearlman - I concur"' Dan Pearlman - Employer Nominee