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HomeMy WebLinkAbout1989-1002.Gordon.90-05-03 ON. RIO EMPLOYES DE ~ COURONNE : CROWNEMPLO¥~S DEL'ON.RIO GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET W~ ~RON~ ON~G MSG 1~- SUI~ 21~ ~LEPHONE/~PHONE 18~ RUE DUNDAS OUE$~ ~RON~ (ON.RIO) MSG I~- BUR~U 21~ ~1~ 5~-0~$ ~002/89 IN THE MATTER OF AN /%R~ITP~%TION Under THE CROWN EMPLOYEES COLLECTIVE B/~RG&INING ACT Before THE ~RIEV~CE SETTLEMENT BOARD Between: OPSEU (Gordon) Gr~evor - and - The Crown in Right of Ontario (Ministry of Correctional Services) . ~mployer Before: R.L. Verity Vice-Chairperson M. Vorster Member F. Collict Member For the Grievor: G. Richards Senior Grievance officer Ontario Public Service Employees Union For the Employer: C. Peterson Counsel Winkler, Filion and Wakely Barristers & Solicitors Hearing: January 4, 1990 DECISION In this matter, the issue is whether or not the facts support the grievor's claim for call-back pay as a result of an incident at the Whitby Jail on June 24, 1989. The relevant provision of the collective agreement reads as follows: ARTICLE 14 - CALL-BACK 14.1 An employee who leaves his place of work and is subsequently called back to work prior to the starting time of his next scheduled shift shall be paid a minimum of (4) hours' pay at one and one-half (1½) times his basic hourly rate. In the absence of oral testimony, the matter proceeded by way of argument and the submission of numerous arbitral and legal authorities. The facts are not in dispute and can be briefly summarized. Robert Gordon is a Correctional Officer 2 at the Whitby Jail. On Saturday, June 24, 1989,Jhe worked a scheduled shift from 6:00 a.m. to 6:00 p.m. In addition, he worked an overtime assignment from 6:00 p.m. to 9:00 p.m. At all relevant times the grievor was assigned to corridors 5 and 6 at the Whitby Jail. His next scheduled shift was the day shift on Sunday, June 25, 1989. After signing out at 9:10 p.m. on June 24 in the normal fashion, Mr. Gordon left the building and proceeded to the parking lot. He observed that the grass had been freshly cut on the east side of the jail property between the parking lot and the fence. The grievor further observed cuts and slashes to the rea~ bumper of his pick-up truck. He p~omptly returned to the building to report the damage to shift supervisor Wallace. Mr. Wallace was busy at the time and requested the grievor to wait until he (Wallace) could inspect the vehicle. Subsequently, Wallace and the grievor inspected the damage. The grievor then left the parking lot at approximately 9:45 p.m. and went home. On the following day, during normal working hours, the grievor completed and filed an incident report. According to that report, shift supervisor Wallace and the grievor agreed that the damage had been caused by the institutional lawn mower being forced against the rear bumper of the pick-up truck. Apparently, the incident was reported to the Ministry insurance carrier and payment for the damage was authorized under the insurance plan. Certain additional facts merit repetition. During the summer months, inmates are required to cut the grass on a regular basis. Normally, grass is cut on Saturdays by inmate "weekenders". Correctional officers supervise the grass cuttin§ operations by inmates. Similarly, correctional officers are required to tour~the perimeters of the jail property as assigned. Correctional officers also supervise inmates who are required to take out the garbage. In addition, correctional officers supervise inmates outside the building who are designated to pick up miscellaneous debris within the confines of the property. On June 24, 1989, the grievor was not assigned to any outside duty. The Union argued that the grievor left his place of work in the sense that he was no longer under the Employer's direction and control. Mr. Richards contended that the employer "implicitly" called back the grievor to establish liability and that the grievor was ordered to wait for the availability of shift supervisor Wallace to inspect the damage. In the alternative, Mr. Richards u~ged the Board to award overtime under Article t3.2. The Union referred the Board to the followin9 authorities' Re Shell Canada Ltd. and Oil, Chemical and Atomic Workers, Local 9-848 (1974), 6 L.A.C. (2d) 422 (O'Shea); OPSEU (James Rich) and Ministry of Correctional Services, 197/83, (Kennedy); OPSEU (B. Charette) and Ministry of Community and Social Services, 26/88, (Wilson); OPSEU (Max Mittereger) and Ministry of Correctional Services 481/82, (Verity); OPSEU (Union Grievance) and Ministry of Transportation and Communications 724/83, (Samuels); Re Hamilton Street Railway Co. and Amalgamated Transit Union, Local 107 (198t), 1 L.A.C. (3d) 355 (Shime); and OPSEU (Koncz) and Ministry of Community and Social Services 748/88, (Verity). The Employer maintained that the facts did not support a call-back entitlement. In particular, Mr. Peterson argued that the grievor had not left his place of work (the perimeters of the property) and that there was no physical call-back to work. In the alternative, there was no entitlement to overtime as no work had been performed as evidenced by the fact that the 9rievor had not signed 'in or out after signing the appropriate register at 9:10 p.m. In support, the Employer cited the following authorities: Thomas Bell and Ministry of Community and Social Services, 116/78, (Swinton); OPSEU iJames Rich) and Ministry of Correctional Services,. supra, (Samuels); Re County of Kent and Ontario Public Services Employees Union (1982), 8 L.A.C. 13d) 188 (Swinton); Re Pulp, Sulphite and Paper Millworkers, Local 870 and Canadian Johns - Manville Co. Ltd. (1961), ll L.A.C. 327 (Hanrahan); Re Hydro - Electric Commission of Town of Mississauga and International Brotherhood of Electrical Workers, Local 636 (1975), 8 L.A.C. 158 (Ferguson); and Re Union Gas Ltd. and Oil, Chemical and Atomic Workers, Local 9-14 (1979), 23 L.A.C. (2d) 235 (Kennedy). On a review of the authorities submitted, it would appear that arbitrators differ, at least to some extent, as to the circumstances in which there is an entitlement to call-back premium pay. However, it remains a truism that each case must be viewed on its own particular facts in light of the relevant contractual language. In the instant matter, the panel is not persuaded that the grievor has any entitlement to call-back pay under Article 14.1. The panel adopts the rationale of Vice-Chairperson Wilson in the Charette decision, supra, where he states at p.8: The real issue is what Article 14 was intended by the parties to accomplish. Clearly its basic purpose is to provide a minimum of four (4) hours pay for a call-back situation. Is it intended by the parties to guarantee that minimum in a pre-scheduled overtime situation? .... The answer is no because the wording of Article 14 clearly says "leaves his place of work and is subsequently called back to work prior to the start time of his next scheduled shift." ~hat clearly means that actual notification to report to work prior to the start time of the next scheduled shift occurs after he has left the w~rk ~l~ce, i.e. be-iF~'en his Scheduled shifts.---I't--is literally the archetypical call-back situation and that only .... It cannot be said that the facts of the instant grievance constitute the archetypical call-back situation. Indeed, Mr. Richards acknowledged that the facts were "unusual". Call-back pay is a form of premium payment for overtime work. In each case, it involves unscheduled overtime in circumstances Where there is a degree of inconvenience and a disruption to an employee in relation to what would normally be considered his free time. In the Canadian Johns - Manville case, supra, the decision turned on the interpretation of the phrase "left the plant" and is therefore easily distinguishable from the result in the Shell Canada case, supra. In the instant matter, the phrase "leaves his place of work" must be given a broad meaning to encompass the entire property. The grievor's actual duty assignment.on the day in question was restricted to corridors 5 and 6 at the Whitby Jail. However, the grievor's "place of work" is the Whitby Jail which includes the entire property. The facts establish that correctional officers are required to work from time to time outside the building and within the confines of the fenced perimeters of the property. In these particular circumstances, an employee does not leave "his place of work" until he is outside the institutional gates. Accordingly, we find that the grievor had not left his place of work when he returned from the institutional parking lot to the jail building. Despite Mr. Richards' able argument, the Board is unable to find that the grievor was called back to work within the meaning of 14.1. The grievor returned to the building, quite properly we think, to report the incident. Clearly, it was in his own interests to do so. However, it cannot be said that - after 9:)0 p.m. on June 24 the grievor was under the direction and control of shift supervisor Wallace. There was no employer notification to the grievor to return to work. Clearly, Mr. Wallace did not call the grievor back to work, but rather he responded in an appropriate manner to a legitimate employee concern. No work assignment was contemplated by the employer and no work was performed by the grievor. That fact appears, to have been recognized by the grievor by his failure to sign in and out after leaving the building at 9:10 p,m. Simply stated, as a general rule, an employee cannot of his volition initiate the call-back provisions of Article 14. To merit entitlement to overtime premium payment under Article 13.2, a work assignment must be performed. On the finding that no work was performed by the grievor in these circumstances, we must reject the Union's alternative claim. In the result, this grievance is dismissed. DATED AT Brantford, Ontario, this .~r~i day of Nay, A.D., 1990. ~. L. VE'~[Y, O. C. - Vice-Chairperson F. COLLIC! -l~ember