HomeMy WebLinkAbout1991-1055.Willson.92-02-07 ONTARIO EMPLOyI"'S DE 1.4 COURONNE '
CROWN EMPLOYEES OE I.'ONTARiO
GRIEVANCE C,OMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180, RUE DUNDAS ~ST, BUREAU 21~, TORSO (ONT~;O). MSG l~B FA~iM~~E .' [a16~ 32E-13~
Un~e~
THE CROWN EM~LOYEE8 COLLECTIVE BARGaINiNG ACT
Defore
~ GRIBFANCE
.O~S~ (Willson)
- ~-
The Cro~ t~ Right of Ontario
(Minist~ of Education)
BEFOg: M. Gors~ Vice-Chai~erson
W. Shipman Me. er
H. Robe.s M~er
FO~ TB~ G. Richards.
GRIE~O~ Senior Grievance Officer
Ontario Public Service Employees Union
FORT HE G. Anand
F~IPr~'E~ Counsel
Stringer, Brisbin, Humphrey
Barristers & Solicitors
~ING October 11, 1991
The Grievor, ~oward Willson, was at all material times a
ReSidence Counsellor, with the classification title of Residence
Counsellor II, and was employed at the E. C. Drury School, located
in Mi~ton,.Ontario, being one of four schools operated for the deaf
and 51ind~b¥ the Employer. The following facts are not in dispute:
1. Residence Counsellors at the-E. C. Drury School, such as the
Grievor, function as surrogate parents for the children who
are resident there.
2, ~Residence Counsellors, because they work more than the number
of hours pe~ week prescribed at regularly recurring times of
the year are .subject to the provisions of Appendix 3, Schedule
A found at pp,150-153 of the collective agreement, which is as
follows: '
APPENDIX 3
SCHEDULE A
AVERAGING OF SOURS OF WORK
The number of hours of work per week prescribed shall be
computed as a weekly average over one (1) year, where the
duties of a civil servant require:
- that he work more than the number, of. hours per week
prescribed at regularly recurring times of the
year, or.
- that the number of hours per week be normally
irregular.
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· Averaging Period:
The averaging period for each class and/or Position:
- will conform to the twelve (12) month calendar
period which reflects the work cycle of that class
and/or position,
and
- will be reported to the bargaining agent.
'Prorating:
Periods of employment of 'less than twelve (12) months in
an averaging period (e.g., due to appointment, transfer,
separation, etc.) will be prorated.
Hours Per Averaqing Period:
The hours of work shall correspond to a thirty-six and
one-quarter (36¼) hour week. or a'forty (40) hour week
averaged over the twelve (12) month calendar period.
Changes to Hours Per Averaging Period:
If at any time, a ministry requires a different hours
base for a class or for a position within a clas~ (e.g.,
equivalent of forty (40') hours per week instead of
thirty-six and one-quarter (36~) hours per week), the
ministry must:
- alter the affected employees' salaries
Proportionately, and
- notify the 'Employee Relations Branch, Human
Resources Secretariat, and the Union of any such
changes.
Record of Hours Worked:
A record will be maintained for each employee affected
showing a running total of hours worked:
- on his regular'.Working days, and
- during the averaging period.
Excessive Buildup of Hours Worked:
When an employee's buildup of hours worked is becoming
excessive,.he:
- may be required to take time off on an hour-for-
hour basis, in order to bring his hours
accumulation into line with the hours requirement
for the averaging period, and
- will be given reasonable notice, where
circumstances permit, of any such time off.
Calculation of ~ourly Rate:
In all cases, the basic hourly rate of pay for employees
on averaging is to be determined by dividing the weekly
rate of the class by thirty-six and one-quarter (36¼) or
forty (40) as applicable, unless the basic hourly rate of
pay already exists.
~ours'Worked~Over Annual. Requirement:
At the end of the averaging period, an~ excess hours
standing to the employee's credit over and above the
annual hours requirement will be considered as overtime.
Normally, the employee shall be paid for his overtime
credits. Such payment shall be based on the basic hourly
rate he was receiving on the last day of the averaging
period.. Compensating time off may be substituted for
payment of overtime, credits as follows:
(a) Where there is insufficient work for an employee to
the extent that his presence is not required for a
period of time, in which case:
- a ministry· has the authority to direct that
the employee take time off rather than receive
pay for the overtime credits, and
- such time off must be taken commencing during
the first month of the next averaging period.
OR
(b) In circumstances other than the above and where the
employee ~and his supervisor mutually agree to
compensating leave, in which case the time off will
commence:
- within the first month of the next averaging
period,
or
- at an otherwise mutually satisfactory time.
4
Hours Worked on Holidays or Other Than Regular Workdays:
(a) All hours worked on a holiday included under
Article 48 (Holidays) shall be paid at the rate of
'two (2) times the basic hourly rate that the
employee was receiving when the holiday was worked.
(b) All hours worked on a day that~is not a regular
working day for the employee will be treated as
overtime and based on the rate he was receiving
when the overtime was worked.
3. The Grievor, 'as a Residence Counsellor, is also subject to the
provisions of an Addendum to the collective agreement, found
at page 148, which 'is as follows:
ADDENDUM TO THE WORKING CONDITIONS AND EMPLOYEE BENEFITS'
'COLLECTIVE AGREEMENT
The parties hereto have agreed to the terms of this
Addendum Covering employees in classifications of
Residence Counsellor' 1, 2 .and 3 in the Institutional Care'
Category and Nurses Special Schools in the Scientific and
Professional Services Category.
This Addendum shall be attached to and form part of the
Working Conditions and EmployEe Benefits Agreement.
The terms of the settlement are as follows:
(a) The hours of work shall be established by the
Ontario Schools for the Deaf and the Blind, and
they may vary depending on the situations which
exist at the different schools. The' normal hours
of work per week shall be forty (40) hours plus. an
additional number of hours of work for the purpose
of coverage requirement without penalty,
recognizing that twelve (12) hours between shifts
and two ( 2 ) consecutive days off may not be
possible to schedule. Normal scheduling of hours
shall be September I to June 30.
(b) Sleep-in is not work and shall only be compensated
as specified herein. Scheduled sleep-in 'hours
shall be credited at the rate of fifty percent
(50%} to a maximum of four (4) hours credit for
those hours on sleep-in duty per night toward the
required annual accumulation. Sleep-in hours prior
to or following a' period of work shall not form a
part of the work shift for any, purpose under this
Agreement.
(c) Authorized overtime work which is required as a
result of an emergency situation s~all be
immediately submitted for payment at time and one-
half (1-1/2) the regular hourly rates. This
emergency non-scheduled overtime work shall not be
included when totalling the number of credit hours
required 'for the year as per Schedule A. Payment
will normally be expected within thirty (30) days
of submission.
4. Residence Counsellors are not 'paid overtime after workin9
eight hours per day or forty hours per week as is the case for
employees covered by'art. 13.2 of the collective agreement.
Instead, a .running total of hours worked by them is maintained
by the Employer. It is only after a Residence Counsellor
Works more than the annual requirement of 1,880-hours per year
tha~ he or she is paid at overtime rates (l~.times the normal
rate) for all excess hours. The ~parties agreed that the
annual requirement was as above stated. Because the Residence
Counsellors work in the 'schools referred to, which operate
only ten months a year, their annual work period is compressed
into that period.
5. Part of the duties of Residence Counsellors require them to
sleep-in, on occasion, in order to fulfil their function as
surrogate parents. That is: to deal with any problems
experienced by the resident children, as would a parent in
similair circumstances.
6
6. Paragraph (b) of the Addendum provides that when a Residence
Counsellor is required'to 'sleep-in, he or she Will only he
compensated on the basis of a 50% credit for.scheduled hours,
to a maximum of four hours' credit. The sleep-in hours
credited pursuant to paragraph (b) are credited towards the
employee's required annual accumulation.
7. Paragraph (c) of the Addendum provides for payment at time and
one-half the regular, hourly rate with respect to: "Authorized
overtime work which is required asa result of an emergency
situation .... " Such payment is to be made on the basis of
the claim being "immediately submitted for payment .... "
8. The E. C. Drury School includes a co-educational residence
where three Residence Counsellors are required to sleep-in
while a fourth Residence Counsellor remains, up and on duty.
There are .other residences: an elementary residence, two
houses for emotionally disturbed children, and one house for
children with various other.handicaps. Each building has its
own staff on night duty or sleep-in, as the case may be. The
staff is responsible for looking after matters at their
assigned lo~ation and, normally, a'staff member does not work
outside the residence to which he or she has been assigned.
It is only the 'larger residences that have a combination of
sleep-in and on-duty Residence Counsellors at night.
?
9. On April 15, 1991, the Grievor was assigned to an eight hour
sleep-in at the residence known as Progress House, there being
four resident children in the house. Because there were so
few residents at Progress House, there was no staff assigned
to be up and on duty during the night in question.
10. At approximately 5:30 a.m. on April 15, 1991, the Grievor had
his sleep interrupted by one of the resident children and was
involved in attending to his needs until approximately 7:00
a.m. The child was suffering from a migraine headache, had
periodic bouts of vomiting, and was in an agitated state
which was manifested by his screaming for his mother and
banging on the walls. The child had a history of suffering
from migraine headaches. The Grievor endeavoured to calm the
child and, apparently being unable to do so, accompanied him
to the infirmary across the street from the residence where a
nurse was in attendance.
11. The Employer compensated the Grievor for the scheduled sleep-
in and up hours in accordance with a memorandum {Exhibit 3),
dated February 20, 1991, from Joan Wallace, Special Projects
Officer, Special Education and Provincial Schools Branch, to
the Superintendents, Schools for the Blind and Deaf and to
Program Directors, Demonstration Schools, which is as
follows:
As discussed at the Blind and Deaf Co-ordinating
Committee meeting on February 5-6, 1991, this Will
confirm the practice regarding up hours during sleep-in
periods for residence counsellors at the provincial
schools.
Residence counsellors scheduled to sleep-in shall be
credited at the rate of 50% to a maximum of four hours.
credit for those hours on sleep-in, duty per night toward
the required annual accumulation.
Shou'ld a residence counsellor be required to attend
to a child during his/her scheduled sleep-in hours, the
time up will not reduce the' credit for sleep-in.
However, there will be additional compensation for the
time the counsellor is required to be up with a child.
For example:
(a) Employee scheduled to sleep in 8 hours
(b) · Required to attend to a child for 2 hours
Sched~Ied slee~~in
(a) 8 hours at 50% = 4 hours, no shift, premium
Up
(b) 2 hours at straight time, plus shift premium
Total credit =' 6 hours, plus shift premium for 2
hours.
Any' period of up time .during sleep in hours will be
credited to the nearest half-hour e.g. 12 minutes = half
hour.
Any time in excess of annual requirement of hours
are paid at the overtime rate.
Please ensure that staff responsible for maintaining
records of residence counsellors are aware of this
practice.
Thank you for your co-operation.
The Grievor viewed the approximately 1½ hours up-time as being
9
covered ~by the emergency overtime provisions of paragraph (c) of
the Addendum. That is, as: "Authorized overtime work which [was]
required as a result of an emergency situation ..., ''~ entitling him
to payment at time and one-half his regular hourly rate.
The Employer viewed the up-time neither as being required as
a result of "an emergency situation" nor as authorized overtime,
but as work normally expected of a Residence Counsellor when
required to attend to his or her surrogate parent functions when
his or her sleep, during a sleep-in,, was interrupted by the needs
of one of the children.
We were informed that there appeared to be no jurisprudence of
the Board which touches on the is~sues before us. From Appendix 3,
Schedule A, it is clear that the 'overtime there contemplated,
including non-authorized overtime work required as a result of an
emergency situation, is represented by "any excess hours standing
to the empIoyee's credit over and above the annual hours
requirement." which is to be calculated: "[at] the end of the
averaging period... ."
From paragraph ~c) of the Addendum, it is also clear that the
parties have provided'for a special kind of overtime work which
will be compensated for and credited in a manner that is different
from the regular ogertime referred to as set out on Appendix 3,
Schedule A. The emergency non-scheduled overtime work is not to be
10
included when totalling the number of credit hours required to be
worked by an employee covered by Appendix 3, Schedule A.
There are a number of difficulties inherent in the
interpretation of paragraDh (c) of the Addendum. The first arises
as a result of the fact that "overtime" for Residence Counsellors
does not normally have the same meaning as in the case of other
employees, in the case'of the latter employees, article 13.2 of
the collective agreement provides:
13~2 In .this Article, "overtime" meahs an authorized
· period of work calculated to the nearest half-hour
and performed on a scheduled working day in
addition to the regular working' period, or
performed on a Scheduled day.(s) off.
Residence Counsellors, as' a result of the provisions of
Appendix 3, Schedule A, normally earn overtime in accordance with
the definition found in the Schedule:
,.. At the end of the averaging period, any excess hours
standing to the employee's credit over and above the
annual hours requirement will be considered as
overtime...'.
It is evident that in-agreeing to paragraph (el of the Addendum,
the parties intended overtime covere~ by that paragraph to be
different from that provided for in Appendix 3, Schedule A. This
is so because,'unlike the case of overtime in the'Schedule where
overtime hours are not known until "the end of the averaging
period," "emergenc'y" Overtime under paragraph (c) of the Addendum
is known "immediately" as it "shall be immediately submitted for
payment at time and one-half the regular hourly rates."
11
"Authorized overtime work which is required as a result of a.n
emergency situation" is not the subject of a separate definition.
In the absence of any other indications, we find that the parties
intended that the meaning of. this kind of overtime would be
influenced by the definition of "overtime" in article 13.2, where
overtime is defined as "an authorized period of work ... performed
on a scheduled working day in addition to the regular working
period or performed on a scheduled day(s) off." Because paragraph
(c') of the Addendum only applies to "work which is required as a
result of an emergency situati6n," it would first be necessary 'th
meet this condition before para,(c) would apply. It would also be
necessary to show that the work was "non-scheduled,".as para.(c) of
the Addendum identifies the kind of overtime.work as "emergency
no3l-sched~Ied overtime work." (emphasis supplied)
Assuming, but without deciding, that the Grievor performed the
work in question "on a scheduled, day off," or "in addition to the
regular working period," it is necessary~ to examine the
responsibilities of Residence Counsellors in order to see whether
the work can be regarded as non-scheduled. The agreed-to nature of
the work of Residence Counsellors, such as the Grievor, is that of
a surrogate parent, their function being carried on "around-the-
clock." Sleep-in, while "it is not work" has as its principal
purpose the maintenance of the surrogate parent function, it is
inherent in the Grievor's position that he or she sleep-in so as to
be immediately available to car~y out usual up-time duties and
responsibil'~ties as a surrogate parent should the need arise. In
that very real sense, the Grievor is scheduled to respond to the
requirements of the position should the need arise during a sleep-
in assignment. He knows in advance that he is the designated
person to respond to the exigencies of the position.
The position Of a Residence' Counsellor, such as the Grievor,
when on a sleep-in is to be contrasted with that of a Residence
counsellor who is at home and would not, as part of his or her
immediate'assignment be expected to respond to exigencies that
· arise at work relating to.the care of the children who ar.e in
residence. For example, where a number of children experience a
sudden Onset of illness and the Residence Counsellor assigned to
sleep-in was unable to respond to the needs of all of them, it
might become necessary to call in other Residence Counsellors who
were not then scheduled to work.' To the extent that a Residence
Counsellor is "scheduled" to'respond to any of .the needs of the
children, during the sleep-in period, such response., cannot be
conSideredl.t~ be "non-scheduled." He or'she knows that it is part
of their position's.duties and responsibilities to respond, to the
children's needs at any time during the sleep-in period, and to
that extent they are scheduled to work, whether or. not the
situation is viewed as an "emergency situation."
Accordingly, for' the above reasons, the grievance is
denied.
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Because of the basis for our decision, there are a number of
matters which did not have to be decided by us and which were not
decided by' us. These are:
1. Whether the work was, in fact, overtime work.
2. Whether the work was required as a result of an emergency
situation.
The basis for our decision was that in order for para.(c) of the
Addendum. to apply the work must be non-scheduled. It was because
of the nature of the duties and responsibilities of the Residence
Counsellor position that we found that an incumbent, such as the
Grievor, while on. sleep-in, although not at work, was scheduled, as
the designated counsellor, to look after any of the situations
(including the one that led to the grievance) that would be faced
by a surrogate parent when one of the.resident children woke up at
night requiring assistance.
Dated at Toronto this 7th day of February,. 1992.
M. Gorskv -,Vice c~irperson
H. Roberts - Member