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HomeMy WebLinkAbout1990-0160.Graham et al.92-08-31 ~. , ~ 'c -, -¡. " \ - , . ~. ,,-~, rI. . .~'. ONTAFlIO EMPLorÉs DE I.A COURONN£ ., '", 'r,." '. CFlOWN EMPLOYEES DE L'ONTARIO ~, . . . ~ .',' ' u ...,. ':". ÎlII GRIEVANCE CpMMISSION DE SETTLEMENT. " REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WESì, SUITE 2100, rORONTO, ONTARiO. M5G lZ8 TELfiPHONEITÉI..ÈPHONE' (416) 325.,.1:188 180, RuE DUNDAS OUEST, BUREAU 2 roo, .TOF/ONTO (ÖNTARIO¡. M5G 1Z8' FACSIMILE ITELtCOPfE .' (4 (6) 326- /396 1?O¡90, 161/90, 162/90, 163/90, 164/90, 165/90, 219/90, 56~/90, I . .563/90, 677/90, 953/90, 962/90, 1021/90, 1022/90,' 1047/90, 1048/90, 1469/90, 1470/90, 1471/90, 1645/90, 1721/90, 1722/90, 1901/90, 20,26/90 . IN THE HATTER OFAR ARBITRATION under I THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT . - . Before - . .. THE GR.IEVANCE SETTLEMENT BOARD - BETWEEN .' OPSEU (Graham et al) Grievor . .. - and - The Crown in Right of ontario. - (Ministry of Labour) ~ Employer BEFORE: R. Kennedy Vice-Chairperson E. Seymour Member M. O'Toole Member - ' . " o _ FOR THE ~ P. Chapman ": , GRIEVOR Couns'el Ryder~ Whitaker, wright & Chapman Barristers & Solicitors .. -- " FOR TRE w. Kenny EMPLOYER Counsel Hicks, Morley, Hamilton~ Stewart; stqrie Barristers & SOlicitors j ~" HEARING April 23, 1991 September 6, 11, 1991 March 12, 17, 1992 April 13, í992 I I . , -2- FINAL AWARD The background circumstances and applicable collective agreement language are set out in the Interim Award issued in this matter, dated March 27, 1991. The Grievors are all employed as Occupational Health and Safety Inspectors, and the particular grievances being considered in the context of this arbitration arose in the Employer's offices located in 'London, Hamilton, Wmdsor and Toronto West. The - grievances all allege that the system of duty implemented by the Employer in a detailed memorandum issued December 14, 1989 constitutes stand-by time and attracts the rate of remuneration provided for in Article 15, rather than being an on-call duty as described in the memorandum itse14 which would attract the lower rate of remuneration provided for in Article 16. The memorandum that is at issue provided as tollows: AB a result of the award of the Grievance Settlement Board in (OPSEU) Bennett et aI. and the Ministry of LaboUT dated November 6, 1989, the Occupational Health & Safety Division.will be implementing a rotational OD- eall roster system to accommodate after-hour requirements. This system will be implemented as of the close of the working day on Frida~ December 22 and will run for a three-month trial period. Each l1lflnager, in consultation with his or her inspectors, is required to put in place a system that best meets the operational needs of his/her area. Where possible, the system will be implemented by way of volunteers from the inspectorate. Where insufficient numbers of volunteers are available, on-call duty will be mandatory for all inspectors and will be assigned by management , on a rotational basis. I . -' " I' - 3- : . . .' . .- Inspec~rs as~ignedto on-call duty by their manager shall be ,paid tWenty-five cen~_.per. hour and shall be required to be rèasonably·available for all hours aSsigned, as 'per Article 16 of the Collective Agreement·. - . WrittenguidelÎ1)es setting out the nature of the' duty required and the expectations of the Division are attached to this memorandum. , 1 .... " . . . The Ministry has requested judicial review of the Bennett et· at decision. However, in recognition of the fact that' an application for judicial review does . not necessarily stay the effect of a decision of the Grievance Settlement Board, all inspectors who fued grievances regarding entitlement to on-call pay , will be paid for the times they were "reasonably'ayailablell for recall to work within the me~g of Article 16 of the Collective Agreement; All payments will be retroactive to 20 days prior to·the date the grievances were fued. AU ,other inspectors 'in the Occupational Health & Safety Division will be paid' on-call pay for all times they were "reasonably. availableff for recall to work within the meaning of Article 16 of the Collective Agreement from. the date of - the Bennett et aI. award (November' 6, 1989) until the start of the work day on December 22, 1989. It will be up to each inspector to establish that he or she was in fact. reasonably available during this period in order to receive payment. In the event that an application for judicial review' of the decision is successful, the Ministry will recover the monies fro,m all employees who have been paid pursuant to the award. . ., On-call Guidelines (or Managers . '. . . - These guidelines are provided to all managers in the Occupational Health & Safety Division to be 'used in implementing rotational on-eall systems in their areas. Given the fae!; that slightly different on-call arrangements may be necessary due to operational and geographic requirements in the various Branches, the guidelines have been worded generally so that they may be adapted to different situations. However, items #8-16 contain instructions that are to be given to inspectors oneall and should be adhered to very carefully, as the success of the on-call arrangements depend entirely on the instructions given to inspectors by their ' managers. , . ~ - 4- Regardless of the type of system adopted, it is absolutely essential for purposes of paragraph #12 thàt all inspectors on-call have access to a manager to provide instructions to them in the event that an after-hours field visit may be necessary. 1. In some work areas, managers will be required to field calls after normal working hours on a rotational basis and inspectors will be required to be on-call during off hours on a rotating basis. 2. The need to assign inspectors to on-ea1l duty will be determined by mAnAeement. 3. Inspectors assigned to on-call duty by management will be paid twenty- five cents per hour for all hours during the on-ca1l period, as per Article 15 of the collective agreement. 4. Inspectors will be assigned to on-ca11 duty for _(days, weeks, etc.) every (days, weeks, months, etc.). 5. On-ca1l schedules will be drawn up by manlleement ' (days, weeks, etc.) in advance. 6. On-Call schedules will be provided to the manager on rotation and/or to (Queen's Park, local answering service, etc.). 7. Home telephone numberS of (managers on rotation and/or inspectors who are assigned to on-call duty) will be provided to the answering service (Queen's Park, local, etc.) and/or to the mAnaeer on rotation for the periods that the inspectors have been assigned to on- call duty. 8. Inspectors are neither required nor expected to provide their home telephone numbers to clients or to the public, whether they are on. call or not. 9. Inspectors who are assigned to on-call duty are not required to keep themselves available for immediate recall to work. 10. Inspectors who are assigned to on-call duty are required to be reasonably available for recall to work. , -, ;- , - 5- . r· " . 1. ' .~ 11. Inspectors who are' assigned to 'o~-ca1l 4uty·are not required to remain at home but should leave a phone number where they may be reached. by the manager on ro:tati~n or by (Quee~'s. ~~k or local answering service, etc.). 1_ - ... '\ 12. Inspectors on-call shouJd. resppnd to calls ~ they would during working' hours and goodjudgment should be used in avoiding unnecessary visits to a worksite. Should it seem necessary to ~it a. worksite, the ' manager should be notified and instructions obtained. 13. Inspectors on call are ~equired to be reasonably avaiIable for re~ ~ ~ work. This means that, should the manager determine that an after- hours field visit is nece~.ary, if' an inspector is to respond, he shall be . given a reasonable amount of time in which to do so. . .. .. 14. Should the manager decide that an immediate response is necess~ he . or she should,ascertain if the inspector on ~ is ,in fact able to:respond as necessary; The requirement to be reasonably available permitS greater latitude and flexibility in the event an inspector is unavailable . ... for immediate response but does not justify a capricious delay. 1· ., Should the"inspectOr on call not'be available to respond, the manager may.con~ct~other ~pector on ~ ~4.ßetermine if he or she is , available to respond as required. If a manager is unable to locate an inspector on Can who is available, he or, ~he, shall respond.. 14. An inspector who is assigned on-call. duty and who is unable to attend a worksite where necessary in response to a call or who cannot attend . withip. a re8Son~le time may, contact the m~ager <!n rotation or another inspector who is on call and ask that person to attend in his or h~r place. , - . 15. Inspec~~ ~igned to on-call duty may trad~ such duty with ap,other inspector with approval of management. '. - 16. Inspectors assigned to on-ca1l duty may be issued with pagers or cellular telephones where' approp~a~. The purpose of this measure is to assist the inspector in maintaining contact with the answering service (or the mana~r on rotatio~) and is~tended to permi~ . , . -6- inspectors maximum flexibility in carrying out their normal activities during their leisure time. This on-call system will be instituted as of the close of the working day December 22nd, 1989 and will run for a for a trial period of months. Should managers have any questions about the application of these guidelines, the Operations Chiefs of each Branch or the Staff Relations Branch should be consulted. It is the Union position that the foregoing Memorandum itself and Guidelines, read in the context of the nature of the job itse~ constitute this a system of stand-by - duty. In addition, the Union stated, that specific instructions issued by Branch Directors and Managers, both orally and in writing, gave further support. to the argument that it was stand-by duty that was being required of employees. It was indicated that those instructions and memoranda differed from branch to branch, and much of the time on the hearing was devoted to evidence with respect to the implementation of the policy in the individual branches. There can be no question on the evidence that the intention of the Employer in formulating the policy was to create a system that came within the on-call prov:isions of the collective agreement. In the opinion of management, there were no . after hours calls that would require an immediate response on the part of an, Inspector, as the function of Ministry Inspectors is not to provide rll'St-llne emergency service. Rather, it is basically an information gathering process, and all , I I ;- .~ ·7- represen~tives.qr management who testified were unanimously of the view that immedi~te .re~ponses\YeÌ"e neither necessary nor custoin~ either after hours or, during regular working hours. The Inspectors themselves who testified did not, , share that view: 'The intention was' that the availability and response time of the' on-call:lnspectors would be the same as it had been in the past with the only ; difference ~eing t~at all-Inspectors ~ould not be on call at all times. . It was' the Employer's evidence that there are between 200 and 30Q calls a year outside of . . . working hoµrs which are handled by Managers, and of those there are between 20 , and 30 actual call-outs of a Health and Safety Inspectorfrom those·whoare .on call. In toW, there are between 135 and 140 Inspectors throughout the province so that, in the vièw of management, that level of activity could not justify having all·· Inspectors on an. on-call basis. Accordingly, it was decide~ to establish the on-call roster with the intention that, if a Manager, was unable to contact the Inspectors who were oneall, the Manager would deal with the matter. ,. , . . , . Colin W1ls~n )Vas the Manager in the London Office, and bya memorandum . dated December 21, 1989 he advised all Inspectors of the new on-call system, and in that memo he dermed "reasonable availabilitY' as follows: ~ . That an Officer on call would be able to set out on an assignment such as an accident, work refusal or other emergent)) etc. within one hour of being contacted. . , ·8- Extensive evidence was provided with respect to various discussions that ., subsequently took place in London and, while there was some conflict in that testimony; I would conclude that the written policy accurately describes the on.call system implemented by WIlson. On the day following'the issuance of his memorandum, two of the Inspectors in London ,went to some effort to contact Wùson, who was on his way to Toronto. They had a number of questions for WIlson with respeet to the new system, one of which was wbether disciplinary action would . be taken if the officer were' not available. It was WIlson's evidence that his answer was that there would be no discipline, whereas it is the evidence of the Union that Wùson said, IWait to find out if Officer is not available. Then we will see what happens.1I It is clear that early in January the guidelines were available in the office and were discussed extensively at meetings involving management and the Inspectors. As a result of one of those meetings, and at Wùson's suggestion, the Union raised in writing the issue of whether or not disciplinary action could arise if a person on call could not be contacted or, if contacted, did not respond. That memorandum was dated January 15, 1990 and was forwarded to the Staff'Relations Branch, who subsequently responded tbat no discipline would result from a failure to respond. Accordingly; it is clear that fairly early on, and prior to the dates of the grievances, any issue of discipline had been clarified by management. I I r - 9 - - Wilson was succeede~ as Manager by Leon Myleìnans and, under date May 24, 1990, he rescinded Wllsan's original memarandum .of D~cember 21, 1989, and he ., described the duty as follawS: - , ~ , Inspectors who are assigned to on-call duty are required to be reasonably available ta receive calls and far recall to work. Hawever, they are not, required to keep themselves available for immediate recall to work. Inspectors wha are assigned to on-call duty are nat required to remain at home but shauld carry a pager. The purpase .of issuing pagers is ,to assist Inspectors to maintain contact 'with the Manager and is intended to permit . i maximum flexibility in carrying aut narmal ac,tivities during leisure time. With respect ta frequency in Londan during the periad March of 1990 to July .of 1991, an Inspector wha was an call was actually required to attend at a wark , locatian on 3 occasians. - In Hamilton, the procedures were inStituted pursuant to a m'emorandum , , . .' issuedto all Inspectors dated De,cember 27, 1989. Twa Inspectors testified with ,,' ." .. L ...' respect to discussians they had with the Hamilton Manager relating to response time. Their evidence tended to be more interpretive .of what they took from what the Manager said, rather than cantaining direct quotes .of what he said. One of . , " '~ them indicated that the Manager 'had told her to respand as always, and in na event to take more than an haur. In her mind, the instruction to respand as always meant that the respanse was to be immediate. She asked the Manager what would ., ~ f - 10- happen if an Inspector refused to go, and the Manager responded that the Inspector would have to deal with him personally. The other Inspector from Hamilton also indicated that he had heen told by the Manager ~ respond immediately within the hour. It would appear from the evidence and exhibits that the policy and guidelines were available to Inspectors and were discussed with management at a number of meetings. With respect to the 2 Inspectors who testified from Hamilton, one had not received a call-out under the new system, and the other received 3 calls and all were handled over the telephone rather than requiring an attendance at the scene., It would further appear from the testimony of the Inspectors that by at least September of 1990 the Manager had become much more flexible as to the anticipated response time of an Inspector to a call. Toronto West is apparently the busiest of the branches and, in a memorandum dated January 12, 1990, the Manager specified the identity of Inspectors who would be on the on-call duty roster up to the end of March. In response, two Inspectors sent the Manager a memorandum which in the reference line stated "recall stand-by time" and expressed the Inspectors' view that a higher obligation was being placed on them to be available for recall, because they were the only Inspectors in the region so designated. They indicated that they expected to be - 11- ", .. compensated accordingly.' In response, the Manager issued a memorandum dated' I - , ". January 30, 1990 in the following terms: .. "r - . Further to your mèmo regarding reca1l!stand-by time, piease be a~vised of the. followiÌLg clarification: - ¡ , ' ,- . ' , My memo dated Janúåry 12, 1990 makes no menti~q of recall or stand-by. , This memo states, lI1isting of Insp~ctors who will be, reasonably available for after-hours calls." Reasonably avaUlable means that the Officers make themsëlves reasonably . available, but does not place ~y obligfÍtion on the Officer to' restrict his/her ,- off-hour personáI àctivities. It is, therefore, felt that this list meets the - requirements ~f Article '16 _ of t~e collective agreement. The guidelines were availa~le to the Inspectors in J anuar;y, and there we~~ apparently no specific discussions of actual response time. The iDspectors who testified indicated that they understood it to be the same as always, 'and ,that by that they ~derstood the· reqUÎ!ed res~onse to be ~ediate. In this Branch, over the IS-month period following the introduction of the new syste~, ther~ were 6 or 7 occasions on which the on-call Inspector had to attend at a workplace. . , In the Toronto West Branch, a subsequent memo dealing With on-call duty , was issued by a subsequent Man~r, under da~ July 17, 1991. The' Union introduced this mem9 into ,evidence over the objections of counsel for ~he Employer. It·was the view of Union ~tnessesthat ~his memorandum did descnDe,a, duty that . , - 12· came within the provisions of Article 16. The operative paragraphs of that memorandum read as follows: As per Article 16 of the collective agreementt lion-call duty" means a period of time during which an employee is required to be IIreasonably available II for recall to work. On-call duty does not require that Officers adjust personal, family or social time to meet any requirement regarding the possibility of being called back to work. Therefore, Officers are not required to stay at home or leave forwarding telephone numbers. Should I, as Manager, require the presence of the on-call Officer at a - workplace af1;er normal working hours, I will telephone that Officer. If for any reason he is unable to attend at the workplacèt (e.g., Officer not at home; has company and has had alcoholic beverages or has personal business to attend to, etc.t etc.,) alternate arrangements will be made. It may be noted at this point that the fl1'St of the above-noted paragraphs is not inconsistent with the statement in the Managerts January 30, 1990 memo that the duty does not place any obligation on the- Officer to restrict his/her off-hour personal activities, and the second paragraph is quite consistent with the provisions of the Guidelines themselves. . The focus of the Union evidence was on the nature of the job of an Inspector and thatt m the overall content it was desirable that in all cases, where attendance at a scene was necessary; it should occur sooner rather than later. In general, , Health and Safety Inspectors are both competent and conscientious in the handling of their duties, and they bring to the job a very high sense of personal responsibility. . - 13- -' - ... In substance, they all' testified that, when called, they would in all circumstances set out as soon as; they could, and I accept that that is the case. However, the issue on this arbitration is whether or not the management requirement is that the partiçulaÍ' employee set out ~ediatel,; as is desCribed in Article 15, ~r that- h~ be reasonably available to go to work as set out in Article 16. Whatever the degree of . sense of responsibility that each individual Inspector may feel, the determination of . . what is the appropriate and required response time is ,a function of management. If ". ',t" - . ., . .' _ - in managemènt's opinion an immediate response is not called for, then it is quite open to management' to implement the arrangements on the, basis of a lesser degree of urgency and required response time. o In substance, thé j'ob involved on this arbitration is to enforce health a.D.d . safety legislation and regulations. Inspectors investigate workplace injuries and . -. .- fatalities, work refusals and complaints involving health and safety in tbe workplace. Their function is to gathér informatio~ and to rèport and to facilitate and mediate . . T 'I..j. ~ matters within the workplace. ' It is important to remember that they are not part of any first-line emergenèy response., These matters are looked after by the police, fire and ambulance services, and the Inspector's role is related principally to the subsequent investigation. While it is self-evident that in an ideal world that investigàtion will start as soön -as practicable, there is no obligation, statutory or . , . 14- . otherwise, upon the Employer or the Inspector for immediacy in the start of that investigation. It is clear that, in a practical sense, it is indeed a rare occasion even during normal working hours that the response of the department is immediate. The Union evidence focused on the nature of the event that would trigger a ca1l-out, and these events themselves may involve emergencies and tragic circumstances. However, it is not the nature of the event itself that dictates whether or ,not the matter falls under Article 15 or 16. It is the nature of the response required by the Employer that governs, and it is for the Employer to determine the level of response " that is to be provided. On the totality of the evidence, there is not the urgency of response, either in theory or in practice, that is asserted by the Union. ( In all, this Board heard 7 days of testimony from both Health and Safety Inspectors and Managers with respect to the nature of the job and the discussions, procedures and expectations that followed upon the introduction of the on-ca1l roster system. On the totality of the evidence, I am satisfied that at no time was there any doubt whatsoever in the minds of anyone that what was intended OJ:l the part of manaeement was a system of duty that would be compensated for under Article 16 rather than Article 15. There was no material departure from the written policy and guidelines in their actual implementation in the offices dealt with in the , , evidence. It is self·evident that any employee would prefer to receive compensation : - 15- ., , under Artièle ~5J and I ,think. the Union's reaction. to the new system was , . - significantly coloured by .tha,..t, fact. In ,the face of the new system, individual ~ . . , Inspectors, to a degree, attempted to assume the management respons~ility of defining what_ the appropriate response should b~ ~and, perhaps s~bconsciously; -, . attempted to define the o~ligation created on that basis r8:ther than focusing on the . ... specific guidelines ~d listening to what they were being told. Particularly in , . - ~ London, the evidence would'"inðJcate an a~mpt to build a case for stand-by rather - . I .:-. - - than to ac~ept the system that was ,dermed in the guidelines and act accordingl~ There are a, numb.er ~f authorities in the jurisp~dence of th.is., Board considering the issue of whether or not a particular duty comes within the ! provisions o~ ~ic~e 15 or Article 16. Whether or ,not a particular situation ~ ....,.. , cons'titutes immediate.a~ailability is, of course, a question: of fact, and therefore the particul~ facts' of ~y given situation will,be·determinative. However,oft!he . - numerous_ a~th!>rities reviewed by counsel on the hearing, there are 3 in particular which we have found to be of assistance in defming the difference between the , Articles. In Novak and Hum,llhrey 141/81 (Barton), it is stated at p.5 as follows: ~ . ~~ The evidence of the Grievors was that ~ere was some ambiguity ~ to the speed with which they were required to answer calls on the pa~r and that they felt that they were required to reápond to emergency calls and did feel somewhat constrained by being on duty in the sense that they could not leave the immediate geographic area of the district. They apparently felt that they \ - 16 - had to hold themselves in readiness to go out on emergency calls. We were very impressed by the professionalism shown by these officers, who clearly take their job se~ously and are a credit to the Ministry. One of the Grievars, Mr. Novak, in fact, did go out on 4 emergency calls during the relevant period and was paid at the overtime rate. He clearly exercised sound judgment in doing so, given the nature of the complaints. The question involved in this hearing is, however, were they required to be available for immediate recall to work within the meaning of Article 15, the stand-by provision, or were they required to be reasonably available for recall to work within the meaning of Article 16, the on-call duty provision? We feel that since the Duty Officer was normally the Conservation Officer scheduled to work on the weekend, the disruption of the weekend would not be excessive in any event. Management indicated that it only required them to be reasonably available, and that it would not have disciplined ånybody if that person had not been immediately available in a particular situation. The fact that the Conservation Officers were required to respond to the pager quickly . does not mean that they were required to immediately proceed to emergencies. In such a situation they were authorized to use their best judgment and, naturally if they could not fmd someone else who would go to the scene, would normally go themselves. In such a situation they would be paid with the overtime rate. We feel that the concept of stand-by pay is reserved for those situations in which an employee is required to virtually sit at home by the telephone "ready to go". An example given during the hearing was a situation of a fl1'e crew on ,alert during a fire emergency. To quote the language of J amiesoQa 162n7, there was here "a full range of flexibility available to them". If the employees had been specifically instructed to stay home and be near the telephone during the off-duty hours, the result might well have been different. The description of the duty contained in the foregoing quote is reasonably accurate in describing the duty of the Grievors presently before this Board. In the Jamieson decision referred to in the prior quote, it is also stated at p.8 as follows: ¡ - 17 - , ~. . ! \;. . The difficulty with the Union's position, howevér, is the provisions of the :', c~µective agreement., By providing both Article 15 and Articl~ 16,. the parties have indicated their intention to create 2 different statuses. To give the agreement integrity in its interpretation. we m~tr~cogniz~ that by :creat~g . - the category of on-call duty, the parties must have intended to restrict the application of stand-by time in Article 15 to situations ~þere there,-is little flexibility in the requirement that the employees be immediately available. r~e on-call duty provisions must then ,co.ntempla~ a relatively, wi!ie array of arrangements for ensuring that employees will be available for recall. - ... ~ ' - It was strenuously argued OD' behalf of.the Union that,_ in the ~ircumstances of this case, the system, asfram~d by the' Empl~ye; in substance relied on the employees' own integrity and :understanding as to,their responsibility, so- th~t man~gement was able to get a stand-by type of response without paying the appropriáte compensation . t. ... for such a system. In our vie~ that argument, too, is adequately dealt with in a prior decision of this Board, namely Mongrain et aI. 939/86, (Slone) wherein at p.10 the following is stated: . " , . '. The employees argue that the Employer is in effect taking advantage of their , professional integrit,y. They argue that it is an illusion to suggest that they have a right to delay their response during the on-ClÛl period. They say that Ü ~ emergency actually arose, they wpuld have no choice as dedicated professionals but to respond immediately. Again, this puts the cart before the . horse. The point is that they are being paid to, maintain. a certain s~te of availability. Being on call does not, in this Board's opinion, justify 'a . capricious delay; It merely permits gr_~ater latitude and fle~bility)n the event the ERP is unavailable for an immediate response. Even a dedicated professional may fmd hims~lf unavailable for an iinmediate response and may require a little extra time to spring to action. The on·call status permits him to do this. ,1 , ,- I 1 . \ - 18 - With respect to the grievances that are before this Boardt we are satisfied on the evidence that the system implemented by the Employer in its Policy Statement , and Guidelines issued December 14t 1989 provides an on-ca1l type of duty for which the appropriate level of compensation is as provided in Article 16. On the plain meaning of the policy; the stanCÙl!d is ''reasonable availability" and not "immediate availability", and the touchstone of coming within Article 15 is the concept of immedia~ The fact that in some offices the on-Call inspector was required to leave . a phone number or carry a pager or cellular phone relates to the ability to communicate, and does not alter the standard of "reasonable availability" for the response. It is a proper management function to determine the appropriate level of service that is to be maintained in off hours, and in the context, no one reading the Policy Statement and Guidelines can have any doubt but that it is l11Aoagement's intent to implement an on-call system. That dermes the extent of the employee's responsibilit;y. The language of Article 16 is used consistently throughout in defming the level of response required. The Guidelines are flexible and recognize that a person on duty may not be available and provide how this is to be dealt with by the Manager, with the ultimate solution being 'that the Manager is to attend, if necessm::y. It was made clear by the Employer e~ly on that it was not envisaged that a failure to respond when on the roster would lead to discipline, and even in the Hamilton Office the Manager's response that there could be a discipline problem I . , - 19 - , · was in response to a question of a refusal on the part of an Inspector to attend, not on the inability of an Inspector to attend. We are 'also satisfied that on the evidence in the locations wh~re wé have been provided same, oral or other written , , -. instructiQns ~th respect to the implementation of the policy did not vary in any material respect ~om;~h~~olicy and the Guidelines themselves, although initially in both Hamilton and London, a one-hour time within which the Inspector should set H, õüt was.súggested. In these circumstances, that still does not constitute an ' immediate response, in our vie\Y, and in any event, would not appear to be a ~ standard that has been adopted by management in the administration of the on-cal.l " . ' ,. system. What constitutes -"reasonable ,availabilityJl is something that' has to be · . . ,- ~ .~' ... -... .. · .... .. dete~ed, on the pa,rticµ1ar factual circumstances of each particular incident and is . . not the sort of sta,ndard that can be defmed in the abstract. During the course of . ... ..-.\' .. the he~g, a mimber of Union witnesses were asked, ~ thecoUl"Se of.their cross- .. evminfltion, to define in terms of time what they would' consider constituted. nreaso~able av~abiliti'.,: Without exception, they were·all reluctant to do' so and .. ' . . '. indicated that ,it would·,depend on the circumstances at the t~e the issue arose. ' . - . . -, - , I . ·20· In the result, it is our conclusion that these grievances must be dismissed. DATED this Jt1:st day of August, 1992. Ross L. Kennedy - Vice-Chairperson "I Dissent" (pissen~ attach~p) E. Seymour - Mem.ber /171- ()'¡7r~ . M. O'Toole - Member CHAIRMAN'S ADDENDUM: I have reviewed the dissent of my colleague, Mr. Seymour, which represents a very fair presentation of a contrary view based on the evidence. There are, however, two factual matters upon which I wish to comment. The incident referred to at the bottom of page 2' relating to a trench collapse in March of 1990 was not a matter that arose in the context of a call after normal working hours. The call came in during normal working hours and related to an accident that was in that particular Inspector's normal geographic area. She suggested to the Manager that the call should be given to the Inspector on -the on-call roster, as it would involve working beyond nQrmal hours, and she was advised that she should attend to it on an overtime basis. The second matter relates to the reference at the bottom of page 4 about a call to Susan Sapin which was not answered. In the course of evidence it was unclear what had happened with respect to that call, and we were subsequently advised by both counsel jointly that the matter had been looked into and that Susan Sapin had indeed responded to the Union Steward that there would be no discipline for a failure to respond. That agreement was apparently reached by counsel to avoid the necessity of calling Ms. Sapin. . . .. , I RE: GSB FILE 160/90 '. OPSEU (GRAHAM et al) and! - . .. .r . .' CROWN IN RIGHT OF ONTARIO MINISTRY OF LABOUR DISSENT J . I Edward E. Seymour -. I.have read the Majority Award and I find that I m~st dissent for the following reasons. ; , .- f , I have considerable difficulty accepting the Ministry's contention that there are no after-hours' si~uations which require ,an imme- diate response from an inspector. These employees are required, as part of thei r normal responsibi I i ties, to respond to w.ork refusals as well as to personal jnjury and fatal workplace ,accidents. _ In my opinion, and bas'ed on the evidence, when Management·issued its new "on-call gu.idelinesu in. Dece~er; 1989, it implemented a system which required a stand~by response, but which was compen- - sated for at,"on-call" rates of pay. Management's instructions were deliberately vague, with the possible,result that an inspector's failure to reSpond to a serious situation "inunediately" could leave himf.her accountable. We heard no evidence that there was a uniform appro~ch_to ,the implementation of the guidelines in these areas. < HAMILTON: Two Union witnesses, .Ms. s. Longboat and ~:t;'. N. Guthrie, gave testimony ab~ut what transpired in Hamilton. rhere was no evidence from Management to refute their t~stimony. · \ Page 2 Ms. Longboat testified that prior to December, 1989, there were absolutely no restrictions placed on her leisure time, nor was there any requirement to leave a 'phone number trail when she left her residence. The new guidelines impacted on her family life to the extent that she could no longer go out for dinner or a ball game with her family, and if she did, the family had to take two cars, arrange for a baby-sitter, and leave a 'phone number trail. she specifically asked the Manager if she could stay to the end of a ball game before responding, only to be told, "No, you have to get out there to do the job." Failure to do so meant she would have to deal with him personally. Ms. Longboat testified that Mr. Jntine justified this position by I stating that his greatest concern was fo~ the worker, and to ensure that the worker was not in danger. Mr. Intine also told her he would not limit himself to the Roster, and he expected non-Roster inspectors to go as 'well if contacted. In September, 1990, a memo was circulated to all inspectors along with what was referred to as an updated version of the new guide- lines. Ms. Longboat testified that when she received these .. docume:nts, she examined the guidelines only to discover they were no different from the originals. She que~tioned Mr. Intine, asking him, "What changed," only to receive the response that, "Nothing I I had changed." and that she would still be required to respond immediately. Ms. Longboat referred to one occasion during the relevant period when she was actually required to respond. This occasion - a trench collapse - occurred in March, 1990, and Mr. Intine was quite adamant in his instructions, which were to, "Get your damn ass there." Ms. Longboat was unshakeable in her testimony despite Ministry counsel's repeated efforts to have her agree with him that she was never told by Mr. Intine that she had to respond immediately. . . . . ';- ! Page 3, . Mr. Guthrie testified Mr. Intine was inconsistent in his response to after-hours' time.' He claimed Mr. Intine's actual instructions were to' "respond immediately, within the hour," and if '"he.failed 'to ... o. .' do so, he would have to answer to ,him. These inst~uctions were lat~r modified, but he was still instr~cted to respond "as fast as you·can." Mr. Guthrie confirmed ~hat when after-hours' calls were received, they always came from Queen's Park. His instructions from Mr. Intine were that when a call came from Queen's Park, "You .. .r . respond and forget about me." - - . Both 'Ms. Longboat's and Mr. Guthrie's testimony confirm that Mr. Inti~e expected an immediate response, and a failure to so respond woul d r'esul f ,in discipline. Their testimony· is undisputed. Mr. Intin~ was not'called as a~itness, des?~t~ his pr~sence throughout the proceedings. The only logical expl anation for the Minis,t~y' s failure to call him is that he could not refute either Longboat's or Guthri e' s testimony, and ~ould, theref~re I weaken its contention that an immediate response was not required. - . All the documents regarding the guidelines which were cirdulated .. . . (Exhibits 6 - 9 inclusive) tend to support the Union "s evidenée insofar as there is absolutely no mention that employees would not be 4isciplined if the~ ,~~iled to respond. ,. 4 , In Hamilton at least the-verbal instructions. given to both Longboat and Guthrie were not in keeping with the Ministry's contention that an on-ëall response was all that was required. , , . In the circumstances, it is unlikely that the employees involved would follow the guidelines' and ignore their Manager's instruc- tions~ In conc:lusion, I would have ruled that in Hamilton, the instruc- " tions from Management required'a stand-by response and should.have Deen compensated in ,accordance with the stand-by provisions of the Collective A~reement~ . . \ Page 4 LONDON: Employees 1n London were notified about the new' "On-call guidelines" through a memo issued by Mr. Colin Wilson, and dated December 21, 1989 (Exhibit 2.) No guidelines were issued with the memo which stated that the inspectors had to be reasonably avail- able. "Reasonably available" was defined as a one-hour response time. This memo raised concerns around the office over the possibility of discipline for failing to respond. Intensive effor~s by the London inspectors to get a confirmation in writing that a failure to respond immediately would not result 1n discipline were unsuccessful. There is considerable discrepancy between the evidence of Union witnesses and Management over this issue, and I prefer to give more weight to the Union's version as to what transpired. According to Union witness Elliott, an immediate response 1S required in the case of a work refusal, a hospital situation, and a fatality. He justified this opinion by claiming that a machine i shut-down at the Ford Motor Company could cost as much as $25,000 a minute, ~nd you could not leave a hospital problem unattended. According to Mr. Elliott, the guidelines constituted "stand by" because prior to their implementation, there were eight to ten . FoÎlowing the irnplernent~tion inspectors, who could be contacted. only two were available. As with witnesses Longboat and Guthri e from Hamilton, Mr. Elliott asserted that prior to the new guidelines, he had more flexibility and was not required to carry a pager or leave a trail of 'phone numbers. Mr. Elliott testified that he went to considerable effort to determine if a refusal to respond would result in discipline. He claimed that Mr. Colin Wilson told him, "When called, you go," and he never received an answer from him regarding discipline. He pursued the matter further, calling a Ms. Susan Sapin, from whom he also received no answer. He finally received a response from Mr. Vic Pakalnis at the Field Operators' Improvement Centre, who said I ; ~ . . ~ .. Page 5 , ,. , he could be'disciplined if he. refused; (Mr~ pakalnis was not called as a witness.) r ~ \. ' , . .. . . Mr. Elliott testified ;thiit he did not recelve a copy of the guidelines until September 17, 1990 (Exhibit 5) at which time he c1 aims Mr. Mylernans informed him that they would keep their - own system and w6uld not follow th~'guidelin~s. .. Management witness, Mr. Colin W~lsQn, testified that he informed the inspectors verbally that there would'be no. discipl ine. He testified that because of the controversy surrounding the ,- .. . , discipli~e q·u:stion, he s~gges.te~ to the Union that the~ put their concerns in wri ting and ~e ,would forward' 'them to staff relatipns. The Union did so thr:ough a memo to Mr. Wilson dated January 15, 1990 over the sign~ture of the Union Steward, Mr. Hutt (Exhibit 3.) I . Wilson said he defined 1'~easonably ~vailable" in the memo because there wås considerablê empha~~s in the policy centring around that issue and he felt it necessary to be clear. I Mr~ Wilson recalled having been' paged, by Mr. "Hut t, the Union : '. - .. Steward, when he was in Toronto on December 22, and that Mr. Hutt . wanted to speak to him about the memo. He alsQ recalled Mr. Hutt wanted to know if there would be discipline, to which he claims to have informed him that there would be 'none. 'Mr. Wilson had no recollèction of a call by Mr. Al Thibert. .He ~l so claims not to , <- have tòld Elliott that he had'to be "immediately available." Employer Counsel also called Leon Mylemans, who replaced Mr. , Wilson. He issued a memo dated May 24, 1990 (Exhibit 4) which rescinded Mr. Wilson's December 21, 1989 memo. The memo specificall y stated that, empl oy'ees did not have to keep th~msel ves nimmediately available," but made no reference to the discipline .- - isÅ¡ue. ,My 1 emans testified that he had no direct discussions with inspectors about the guidelines, but he distributed the guidelines · , I I Page 6 September 18. 1989, a full nine months from the time when they were initially released. He took the position that the inspectors did not see the actual guidelines before he distributed them on this occasion. He did not go over the guidelines with staff point by point. Mylemans admitted under cross-examination that the first time he was involved in a discussion involving pagers was in October, 1990, and that carrying a pager means he has greater access to staff. He also admitted he never gave the time in terms of hours or minutes regarding "reasonably" or "immediately available," but admitted it might have been possible he told Elliott he knew they would do their job, but did not define it precisely. (Elliott's interpre- tation of these events was that he was unwilling to do so.) He agreed at the Hearing that "immediate" meant, "Drop everything and go - you respond." "Reasonably available" he defined as "serving the client in a productive way." He claimed that work refusals required an immediate response on some occasions, and others could wait until the next day. He could not give a definitive response about what was required for fatalities. In response to Management testimony surrounding the events in London, Uni on Couns e 1 called two witnesses in reply, Mr. Michael Hutt and Mr. Al Thibert. Mr. Butt, the Union Steward, testified that he received a copy of the December 21, 1989 memo the last working day before Christmas. He noted that the memo referred to officers volunteered for "on call," and he checked to establish who those officers were, only to discover that no-one had volunteered. Concerned, he went to the tront office to see where Colin Wilson was, and was informed that he was expected within the hour. When Mr. Wilson did not arrive, he requested that Mr. Wilson be paged. It was while waiting for Wilson to return his call that he drafted questions to ask him (Exhibit 24.) i . . .' 1 I Page 7 ."; When Wilson called, he a s'!:t ed the first two que:.tions, wrote .down I, 'the responses and'~i~son.~efuse¢ to answer any further questions. " ' , , . He claimed Wilson said there would be a meeting in January and he would address his concerns then. . Regarding the remain~ng questions~ Hutt testified anothe~ officer, Mr. Thibert, spoke to Wilson 'on the 'phone, and while he was doing so, he gave the questions to him and asked him if he could get Wilson .to respond,.' . The remaining responses were written 'by Thibert. This was substantiated whènMr: Thibert tèstified,and, he agreed with Mr. Hutt's. version of the 'events regarding how' the responses to qu.stions three to s~x were deriv~d~ Thibert had no 'idea who drafte,d the . questions or who - wrote the responses ,to i questions one and two. He did, however, state that he asked I questions three to six and wrote Wilson's responses as he received them. - under cross-examination, Mr. Thibert said that he believed he had . to respond within an hour when called out. He said that once contacted, they speak to the client over the 'phone and if. the - issue cannot.be resolved, they leave the house. He ,claimed that Wilson said, "Leave within one he'ur," and also claims he said, "He knew what ~hey would do." He claimed the one-hour limit referreå . . to, 1 eaving the .house', ,but the response time was muc:b. quicker. He says the one-hour limit differs from before the guidelinesbec~use , , the. lim,it is now defined, whereas it wasn't before. . .. . " ' Under cross-examination, Mr. Thibert was firm in his åssertion that it was he, and not Mr. Hutt, who wrote the responses to q~estions three to ,six. He also said his first impression of the guidelines,. when he.saw them, was that they required a stand-by response. He also expressed the opinion that the new guidelines were. more , ' - restrictive because you now had to constantly be in a position to_ be contacted. It was his opinion that Myleman's memo did not put them back to where they'were before because they were now ,required to carry a pager. The new system, acc~rding to him, made only one , I . , . ( Page 8 or two people available to be called, so there was a greater potential to be called. Under the old system, they could attempt to reach all inspectors so there was less urgency. He claimed that Wilson's response to question four of the guidelines didn't make sense to him; the question and response are as follows: Question: "Wha t is meant by: that we would be able to determine that they are reasonably available to handle an assignment?11 Response: "When we 'phone, question to be answered is, "Are we available?" Colin defined it as being able to respond within one hour." To Hutt, this appeared to be stand-by. From the above, the evidence from the Union and Management is contradictory and, on its face, r again prefer to accept the Union's account.. Elliott claimed ,he attempted to pin Wilson down regarding possible discipline, and claimed he never received a straight response. Neither did Hutt and Thibert. Mr. Wilson did not even recall the discussion with Thibert, but on the basis of the explanation given by Union witnesses with respect to the questions and how the responses were derived (Exhibit 24) there is no question in my mind that the account of the Union is the most plausible interpretation of events. Management was uncomfortable in communicating the message to the Union insofar as the "on-call guidelines" were concerned. The verbal instructions, as they related to ,the guidelines, were certainly unclear. Management's failure to address the issue of discipline in writing lends further credence to the Union's interpretation of what transpired. . , - . , -:: ? Page 9 - ,. ., - - . TORONTO WEST Inspectors in Toronto West l,earned of the guidel ines through ,a memo "\ . -: . e· ~ dated January 12, 1990 (Exhibit 10: ) In that mem~ ' Management identified who woul!3- be on the "On Call Duty Roster" to the end of March. This resulted in a memo being sent to Management by two inspectors who expressed the view that a higher obligation was " '. placed on them to be availablé, and this constituted stand-by. , " Management responded quickly with a memo, 'dated, January 30 . clarifying that it had not used the terms Ifstand by" or Ifon call," . - + . . and emphasi~ing that there were no restricti.ons, regarding off-hours personal activities. ,- Union witness, Peter Curtis, who claimed that in the December, 1989 memo there were. no instructions given regarding response time, .said he assumed it had to be right away. He did not get a copy of the . - guidelines until August, 1990, but admitted that may. have been . because he was on,vacation. 'He could not recall any discussion on , ' ' - the points contained in the guidel~nes, a ~osition he maintai~ed under cross-examination. , Mr. Curtis referredte an occasion in September, 1990 when he: was called out to investigate a serious accident, and he was told to go right away, which he did. He was not on the "stand by" or "on call"Roster at the time. He remained firm under cross-examination ~ .' that Man~gement sai~ t~at he had to ~espond immediately. He said that if there is a call, he has to go right away and he firmlY believed that if he was on the Roster, he was on stand-by. Doug Graham, another. Union witness, also testified that he did not get a copy of the guidelines until some time in August. He claimed his Manager I Mr. Bar,~y Blyth, would give' no definition of the term ureasonablyavailable." He confirmed that,i~,one'conver~ation, he was told that if there was a fatality, he had to go right away. He substantiated Mr~ Curtis's evidence that there was no discussion about the guidelines, nor was there a review of them. . . ~ . Page 10 Management Counsel call ed Barry Blyth as its witness, and he stressed that there was never a situation in his career which required an immediate response. He said that most of the time it would be the police, ambulance or fire personnel who would be the first on the scene and that contact came to the Manager first. , Blyth recalled the inci~ent referred to by Peter Curtis, which he described as a nasty accident, in which an employee lost an arm in the machinery. He claimed he knew there was some urgency, but could not recall that he instructed Cu~tis to respond immediately, nor did he recall Curtis saying that he had had a tough, busy day and asking him if it could wait. He didn t t recall his response to the effect that, "No; it is fairly serious, go now. It He did, however, agree that he would not dispatch someone if it was not serious. Bl }"th agreed that he asked for volunteers, and put "reasonably available" on the memo to meet what he felt was the intent of the guidelines. He was deliberately vague about the specifics because . he did not like the system and did not like being forced to impose the syst em 'on his employees. He was clearly uncomfortable with the system. GENERAL SUMMARY I agree with Union Counsel's contention that based on the evidence, Management's claim that there is no requirement for an immediate response is not consistent, and it arises solely from the decision by the Ministry to pay employees on an '''on call" basis. Accepting Management's evidence means that the following situations revealed in the evidence do not require an immediate response: . Longboat's evidence: Trench collapse; March, 1990. Elliott (Hypothetical:) Work refusal, Ford Motor Company, $25;000 per minute loss. Elliott (Hypothetical:) Fatality. . ~ - ,", -; p,age 11 . ' Curtis: Factory accident, worker loses arm in machinery. -. To accept Management's version of the response required would mean that an employee could "stay to the end of the ball game, finish r' supper, refuse to respon~alt6gether, with th~:r~sultth~t ano~her inspector, would be contacted, and failing any response, Managers would go themselves. h, - . As one-who has spent a consfderable part of his adult life working , ) in a-factory during which time I have witnessed serious work-place accidents, the interpretation Managementwisþes to have the panèl accept just' isn'f plausibfe, nor isi t· a.cceptabl e. I accept that'the first line response toa work-related accident invofving injury 'or fatality would be fire, police, - ' ser~ous or ambulance personnel. 1 also accept that they can secure a scene. However, they have no authority under the legislation to give the employees clear~nce to contiriue operation~, or to order a machine operable, nor can they order~a return to work after a work refusal. The interpretation Management ' , ï udicrous,' expects us to accept is and the evidence of ail Union wi tIlesses cl e'arl y reveal ed that they were expected tõ respond immediatel:y despi te Management's assertion to the c6ntrary~' . Management's absolute failure to clearly indicate in writing that no discipline would be taken in my view indicates that' they expected employees to respond. In Hamilton, Longboat's uncontra- dicted evidence was that, uyou go, or you are in trouble." I fully agree with the Majority that it is the nature of the event which dictates the response required by an inspector. The incidents àbove are flevents" which require an immediate response.- ' If that isn't so, then 'the Ministry is certainly taking the low road when it comes, to protecting the heal th and safety of workers in- the Province. I restate the words attributed to Mr. Intine bi Ms. . I -. , ,. . , Page 12 Longboat: "My main concern is for the workers' safety." It can : only be assumed that he would have re-emphasized that concern at the Hearing had he been called. I do not agree with the Majority's assertion to the effect that: . . nAt no time was there any 'doubt whatsoever in the minds of anyone that what was intended on the part of Management was a syst.em of duty that would be compensated for under Article 16 and not 15. The Ministry may have wanted to pay for an non-calllr response, but their actions in all areas indicated that they wanted a stand-by response. That was certainly clear from both Ms. Longboat's and Mr. Curtis's evidence. Except for Toronto, the employer did not make it clear that a failure to respond would not lead to discipline. Mr. Intine certainly made it clear to bath Guthrie and Longboat that, diseipl ine would be the result of a failure to I I respond. I In London, despite a written request, the employees never got a straight answer, Management was always evasive. I If the Union witnesses were, as the Majority contends, reluctant to define the term "reasonable availability," I contend Mylemans wasn't all that clear either. He could not define the type of response required in a fatality. In a work refusal, he said the requirement might be to go right away, or to wait until the next day depending on the circumstances, a· definition not markedly diÍferent f¡:-om that of the Union witnesses. "Reasonableft to Mylemans meant he liked to serve the client ~n a productive way. Whiting did not know if one hour was immediate response time. He said it depended on distance, how long it takes; he said HimmediateU meant how fast you could respond, not how long before you go. He also said actions depended on Management instructions. . ,,'. Z.t , , > Page 13 Certainly i~ the incidents recited in both Hamilton and Toronto, the instructions were to go, and go now. whiting also said the police could not decide if a work stoppage should be ordered, and police and other services don't get involved , ina work refusal. Whi·ting, unlike other Management witnesses, said he could think of situations that required an immediate response. . r suspect, if Mr. Intine had been called, he would have as well. In the case before us, it was clear that the si tuation -the inspectors were responding to ~ight be life-threatening. It was equally clear that employees, particularly in Hamilton, and to a lesser degree in Toronto, felt that discipline, would be imposed for a failure to respond. The on-call guidelines were not clear. As Union. Counsel contended, a number of patterns emerge from the evidence. London did not get· a copy of the guidelines until September, nine months after they were initially issued, so they did not get to see what decisions , ' ,- the Ministry had taken, and they only got a brief explanation from Management. Management tended to avoid giving clear instructions, particularly in Toronto and London. Blyth said he was deliberately vague about the specifics of the response time because he did not like the system and did not like being forced to impose it.' In conclusion, and for the above reasons, I would have found that the guidel ines initiated by Management consti tuted a pol icy call ing for a stand-by response, which should have been paid for at . -' wne stand-by rate, and I ,would have so ordered. Dated, at Hamilton this 25th day of August, 1992 < c;pei¡¡:343