HomeMy WebLinkAbout1991-2086.Vandenheuvel et al.94-05-02 '~-...~ "~ .... ,;~'~ i,,i ONTARIO EMP£OY~cS DE LA COURONNE
" ,il !" ,; C~OWNEMPLOYEE$ DEL'ONTARiO
, :
: ""'::"GRIEVANCE C,OMMISSlON DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
t$O ~UNOA$ STREET WEST, SUITE 2100, TOF~ONTO, ONTARrQ MSG ~Z8 TELEPHONE/TEL~:PHO~E: (476) 326-1388
1;80, RUE DUNDAS OUEST, BUREAU 2~00. TORONTO ~ONTARIOI., MSG 1Z8 FACSrM~LE/TEL~COP~E ; (4'~6) 326-~'396
2086/91, 2087/91, 2088/91,
2089/91, 2090/91
IN THE MATTER OF AN ARBITRATION
Un,er
THE CROWN EMPLOYEES COLLEcTIvE BARGAINING HCT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Vandenheuvel et al)
Grievor
- an~ -
The Crown in Right of Ontario
(Ministry of the Environment)
...... Employer
BEFORE.: W. Low Vice-Chairperson
T. Browes-Bugden Member
D. Clark Member
POR THE R. Davis
GRIEVOR Counsel
Koskie & Minsky
Barristers & Solicitors
FOR THE M. Farson
EMPLOYER Counsel
Fraser & Beatty
Barristers & Solicitors
HE~RIN~ April 3, 1992
September 4, 1992
~' May 7, 1993
June 18, 28, 1993
January 10, 1994
February 1, 1994
DECISION
The five Grievors, Errol Butler, Dennis Walker, Michele Vandenheuvel,
Christopher Hurt and Albert Peterson are all environmental officers employed in the Sarnia
District of the Ministry of the Environment. They grieve that they were paid at the "on call"
rate for stand-by service time and seek retroactive compensation. Mr. Butler grieved, on October
7, 1991 and seeks compensation retroactive to March 1990. Mr. Walker grieved on October
9, 1991 and seeks compensation retroactive to an unspecified date. Mrs. Vandenheuvel grieved
on October 7, 1991 and seeks compensation retroactive to October 21, 1986. Mr. Hurt grieved
on September 23; 1991 and seeks compensation retroactive to .lune 24, 1986. Mr. Peterson
grieved on October. 10, 1991 and seeks compensation retroactive 'to September 19, 1989.
. The grievances c0/5Eern Articles 15.1 and 16.1 of the Collective Agreement which
provide as follows:
.. "I5.1 ."Stand-by time" means a period of time that is not a regular
· .: working period during which an employee keeps himself available
for immediate recall to work."
"16.1 "On-call duty" means a period of time that is not a regular
working period, overtime period, stand-by period, or call-back
period, during which an employee is required to be reasonably
available for recall to work."
The matter first came on before this panel on April 3, 1992 at which' time a
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preliminary motion was made by the Employer relating to the retroactivity of the claim'. The
preliminary motion was dismissed and we were subsequently advised that the Employer
commenced judicial review proceedings in respect of that ruling. The parties were, hoWever,
desirous of having the matter heard and determined fully on the merits notwithstanding the
commencement of the judicial review proceeding on the preliminary ruling, and this panel heard
the evidence on a number of days in 1992, 1993 and 1994. The parties alSo agreed that the
evidence ol~ Mr. Christopher Hutt could be applied by the Board to the other grievances provided
that the.other Grievors were also called to testify.
The backdrop for this grievance is the Emergency Response Program operated by.
the Ministry of the Environment. This program, referred to as "ERP", came into existence in
1986. The role of the ERP officer on duty was to respond in' an appropriate fashion to contacts
made to him or her by the Spills-Action Centre (referred to as "SAC"). SAC acted as the
central exchang6 of environmental spills information. Its role was to' respond to spills
notification and other environmental occurrences 24 hours a day,. 365 days a year. The
Ministry's Policy Manual titled "Spills Action Centre Operating Procedures" with an effective
date of March 10, 1986 sets out a number of appropriate actions for an I~RP officer to take when
contacted by SAC:
"(a) initiating MOE field response by contacting Region~ Emergency
Response staff;
(b) contacting other agencies as required, e.g., police, fire department,
3
ambulance, Coast Guard, Canutec, municipalities, U.S. authorities;
(c) notifying senior MOE management of serious incidents and coordinating
information flow with the communications Branch;
(d)' establishing contact with the Minister regarding major spills and
conveying orders from the Minister where necessary;
(e) ensuring that potentially affected parties are notified/warned;
(0 liaising with and providing support for agencies in charge when a spill
involves an emergency situation;
(g) providing information on chemicals and clean-up techniques to MOE staff
and others; and
(h) recording details of complaints and/or incidents and forwarding them to
relevant District Offices or other agencies for response during normal
business hours."
When the compensation scheme was being discussed in 1986 for ERP staff, the
Ministry's operations division p~pared a discussion paper in which the midnight to 8:15 a.m.
period was proposed to be designated as an "on-call" period ,for the ERP officer on duty. The
paper stated:
"Statistics kept since the start-up of the Spills Action Centre highlight~ that very,
few call-outs have occurred between the hours of 12:00 a,m. to 8:00 a,m. It
would not be appropriate to maintain a high cost "standby" service level for a
time period when few calls are likely to occur. The use of on-call for this time
period would mean however, that response times would be considerably slower
for those few events that do occur."
It also stated among its conclusions that:
4
" Since travel time will limit total response time, during "Stand-by" periods
~response staff should depart to the scene within 5 minutes of being.
dispatched by SAC.
.. For "On-call" periods staff should be given sufficient time to properly
awaken themselves and prepare .for departure."
On September 19, 1986, a memo was issued by D.p. Caplice, the Assistant
Deputy Minister of the Operation.~ Division to all Regional Directors regarding "Compensation.
Guidelines to ERP's". The fo!lowing is set out in the memo in relation to telephone calls during
stand-by time and on-call time:
'Telephone calIs during Standby time and On-call periods would be considered.
as overtime and would be compensated on a minimum basis of 1/2 hour at 1-i/2
times the hourly rate..
A call from SAC to the ERP instructing an assigned employee to report and
investigate an emergency situation would be considered as a scheduled recall to
work and the first occasion of such recall to work would be compensated on a
minimt~m basis of-4,hours overtime at 1-1/2 times the hourly rate (Article 13,
Collective Bargaining Agreement) except when the emergency, recall occurs
within four hours of the normal work schedule."
It was-the evidence of Mr. Hutt that at the inception of the program, a member
of management presented the con~pensation package and explained the difference in the rates of
pay as between on-call and stand-by periods saying that the midnight to 8:15 a.m. period was
being designaied as "on-call" because the chances were that the ERP officer would be at home
and thus easily contacted. The balance of the time, the stand-by period, the ERP officer was
to carry a pager.
On November 25, 1986, Kal Haniff, the engineer and an industrial officer in the
abatement section, issued the following memo to the Sarnia office ERP staff re. "On-Call":
"In future, when on call, please keep the beeper on 24 hours a day and have the
beeper available with you at all times.
The procedure that SAC will use will attempt to contact the E,R.P. via pager
first, and if that fails/ then will. try other means. It is felt that the contact, via
pager will help expedite calls as on some .occasions SAC has tried to contact
E.R.P, via home telephone number on off hours and the line has been busy for.
extended periods. If there are any questions on this please contact me."
The Sarnia district was particularly sensitive environmentally' and was known
colloquially as "Chemical Valley'. There was a high industrial concentration in the area and
because of the location on the St. Clair River as Well as the area's proximity to the United
States, spills to the river had not only potential for great environmental harm, they had an
international component as well. A large number of "non-standard procedures" were
implemented for a variety of environmental circumstances or occurrences in the Sarnia district.
Where an occurrence fell within the ambit of a non-standard procedure, SAC was to notify the
ERP officer for action. All spills to the St. Clair River were put into the non-standard
procedure category and were treated with due promptness and gravity. In a submission 'to the'
Division Head meeting i'egarding, inter alia} the Ministry 'of the Environment's response to spills
to the St. Clair River, M. Looby'and J. Luyt of the Southwest Region's Operations Division~
wrote on October 18, 1989:
" Special instructions have been given to SAC whereby a!.[ spills to the St.
Clair River require an Emergency Response Person (ERP) call-out.
6
The District Environmental Officer (office h°urs) or the ERP (outside
office hours) immediately investigates these spills.".
On September 6, 1991, in the context of an anticipated revision to the ERP,
Gordon Van Fleet wrote to the Divisional Directors, G.W. Scott and R.M. clark, as follows:
"In mid August, the proposal was discussed wlth each District Office and there
was sufficient staff support for it to be viable at all Iocat/ons except Sam/a,. where
all eleven staff objected on the basis that it would result in an unsatisfactory
reduction in the level of service, On August 29th~ the proposal Was discussed in
teleconference with the Assistant Directors and Abatement Managers,. resulting
in some minor fine tuning. Sarnia remains a concern of the Southwestern Region
primarily because of sensitivity to spills to the St. Clair River and the perceived
need for staff to be immediately available all weekend."
The.Employer kept statistics for the average number of minutes that it took ERP
officers to attend at a spill site both during stand-by and on-call times for the period January 1,
1988 to September 30, 1991. The average for Sarnia was 34.7 minutes for stand-by periods and
48.4 minutes for on-call period~-j~about a 14 minute difference. This data related only to
attendances where an arrival time was recorded and only in relation to spills. No information,
however, was kept as to the relative times taken to respond to a SAC contact with other types
of appropriate action as set out above, and the data does not include attendances for matters ·
other than spills.
The oral evidence which was adduced chiefly through Mr. Hutt and confirmed
and in some cases expanded upon by the other Grievors, disclosed that the ERP staff were all
of the understanding that once they were contacted by SAC, whether, during a stand-by period
7
or an on-call period, they were expected to launch into action. Their evidence was to the effect
that they did so without delay both because they felt it their professional' duty to do so and
because such a degree of promptitude was expected of them by management. They understood
that SAC contact, particularly in relation to spills, required immediate response and immediate
response was what they delivered. Not every contact, however, warranted a personal attendance
at the site, and it was the Grievors' uncontroverted evidence that it was a matter of professional
judgment left to the ERP officer as to which action he or she would take in the circumstances.
A response might take the form of an immediate personal attendance but it might take' the form
of no more than a telephone conversation with a SAC officer and a notation for further action
at a later time. Action might consist of other communications as contemplated in the Ministry's
policy manual.
The evidence disclosed that ERP officers claimed and were paid for the initial
telephone call, i.'e. the SAC contact, whether on call or on stand-by. It was claimed and paid
as one-half hour of overtime. Where it was necessary to go out,. the'site attendance was claimed
and paid as four hours. The Griev0rs testified that it was' understood by ERp officers that if
SAC gave an instruction to go out and attend at a site, the ERP officer was expected, to attend
at once. Likewise for spills and odours, because of the nature of the incident, the evidence may
be gatherable only while the event is taking place and it is necessary to attend at once. It was
the understanding that spills were a priority and that it was necessary to attend.immediately.
8
The evidence also disclosed that ERP officers were expected to carry pagers both
for' on-call and stand-by periods. More recently, ERP's were provided with portable cellular
telephones, thus £acilitating instantaneous communication with SAC without the interposition of
and delay created by a pager.
It was acknowledged by the Gri6vors that where a site visit was in,~;olved, the time
taken to. get to the site would be slower during the midnight to 8:15: a.m. period because
gene~'ally the ERP officer would be asleep. It was the understanding of the Grievors, however,
that once contacted by SAC, they were expected to act immediately whether it be by way of a
telephone communication or site attendance, They did not differentiate between stand-by or
call periods in terms of the swiftn~'ss with which they set to work and believed that the Employer
expected there to be no difference.
Mr. Gordon Van Fleet, the Assistant Director and Abatement Management for
the Northwest Region (Thunder Bay), was called on behalf of the Employer. He was involved
in the review that led to the changes in the ERP compensation scheme. While his evidence set
these grievances in context by highlighting the Employer's motives of minimizing the cost to the
public of maintaining the program, he was not able to throw any light on the issue before us,
namely the instructions to and 'the requirements and expectations of the ERP staff in Samia. Mr.
Van Fleet had never worked in that district.
9
The Employer also called the evidence of Gary Zikovitz, the head of SAC. Mr.
Zikovitz testified that where incidents are reported to SAC, the SAC officer relies on three
guidelineS:
1. Operating procedure cards which detail what to do and when to call out
the ERP officer. These are used for all occurrences.
2. When a non-standard procedure has been put in place (and these are
initiated by the district), to call an ERP .officer for action.
3. To exercise a discretion allowed to each SAC officer, justifying the
manner of the exercise of the discretion.
If there is a serious spill, whethei' with or without a non-standard procedure in place,' the SAC
standard procedure requires that the ERP officer be sent out: Mr. Zikovitz further testified in
relation to the stand-by/on-call distinction that if an occur[.ence was called in to SAC during a
stand-by period, the SAC officer is not to hesitate to call the ERP officer. If the occurrence is
reported during an on-call period, the SAC officer is to call the ERP officer only-if really
necessary. In our view, the proper inference to be drawn from this is that a call was expected
to elicit an immediate disruption of the ERP officer's activities.
.In 1991, the Employer had determined to cut its costs by revising the ERP,
increasing the on-call to stand-by time' ratio, thus reducing the cost to the Ministry and
consequentially the income of ERP officers in the program. At this point, the Grievors ~who had
10
hitherto been content With their overall compensation and who had thus never raised an issue
about the differential, in pay as between on-carl and stand-by periods, started to rd'se queries
about the difference, if any, in' the Employer's expectations of them during the two different
periods.. Early in 1991, the ERP staff at Sarnia commented by memo on the Employer's
proposal to implement shift work for the program. Among their comments were the following:
"1) Currently we have a program' that works! The public is happy with our
responses and we have never had a complaint against the system in Sarnia.
Moral is high in Sarnia with the current program.' We respond after
midnight as if we are on "stand-by" instead of just "on-call". Dedication
is high. In 1989 22% of our call-outs were after midnight. If the
compensation/work hours change drastically as proposed there is a
possibility that response mechanisms will change as well.
4) We need a definition for "on-call" vs. "stand-by''. With sensitivity high
in the Sarnia area we feel that the ERP's are on "stand-by" continuously."
On August 9, 199t-, they sent a memo...to D.A. McTavish, Director of the
Southwest Region: ..
"Sarnia District E.R.P. will not volunteer for the proposed reduced emergency
response program.
We feel it would be irresponsible for us to volunteer for a program which will'
provide reduced ~'esponse to spills in the Chemical Valley. The Chemical Valley
industries operate 24 hours a day, 365 days a year and spills to the water and air
occur at anytime of the day or night. Also,~the nearest downstream water users
are in the order of one hour away.
Sarnia E.R.P. have been providing immediate response to spills during· all
working and non-working hours.
We would appreciate a reply indicating whether or not continued immediate
'11
res?or, se is required fo.,' spills in the Chemical Valley."
On September 13, 1991, they wrote another memo and put the queStion again:
"...in light of the reduced Emergency Response Program starting on' October 1,
1991, we have obtained a working understanding for the. "On-Call" definition
under Article 16 of the Collective Agreement. It is the Union's position that one.
does not need to carry a pager during "On-Call" periods, therefore it is our
intention to turn off the ERP beeper during "On-Call" hours and be "reasonably
available".
You have not answered our August 9, 1991 letter and we will ask again, do you
require immediate response to spills in the Chemical Valley?. Please respond
immediately as well as letting us know if you have any concerns with .our
interpretation of the "On-Call" definition."
On September I9, 1991, a meeting was held, attended by Mr..McTavish and the
ERP staff at Sarnia at which the issue of the on-call/stand-by distinction was discussed. On
September 24, 1991, Mr. McTavish' sent a memo to the ERP staff containing the following:
"Management will continue to accept that there is a difference in response time
for staff to be on-site between on-call and stand-by. Management does not expect
an immediate response by an individual when he/she is on-call. Only when an
immediate response is required and pre-authorized by management will there be
an expectation to respond to a call immediately.
When on-call you should be able .to be contacted easily. Beepers and cellular
phones have made it convenient for this to occur whether you are fishing or at a
ball game. Most such contacts, when you actually talk to .SAC should take no
longer than one-half hour and with a cellular phone would really not require any
time. For.example, when wearing a beeper, if it goes off and you are fishing you
do not have to immediately respond to the beeper. It obviously will take you
some time to get to a phone.
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Therefore, when wearing a beeper 'you are not expected to be immediately
available to receive a call and would be expected to respond in a reasonable time
frame. Only when you have received authorized instructions to be immediately
available would it be necessary for you to respond immediately.
When contact has been made with SAC the time it will take for you to attend at
the site can be determined and if it is an urgent situation 'it may be necessary for
SAC to call management to see if arrangements for someone else to attend at the
site can be made. This action could be necessary if your earliest time of arrivaI.
would 'be longer than 1 to 2 hours from the time of'your contact with SAC."
Mr. Hutt had grieved the day prior to Mr. McTavish's memo and the balance of
the Grievors grieved shortly thereafter.
That the Grievors were highly professional and dedicated and that they brought
to their duties a commendable degree of. personal responsibility is beyond dispute. This is to
the Grievors' credit and no doubt also to the credit of management'in h/tying pulled together and
motivated a team which obviously enjoyed their work and which was rightly proud of the work
they were doing. That the work was important to the public 'is also not in dispute. Nor is it
suggested that there was anything untoward in the Employer's motive of redesigning the program
to reduce its cost to the public. The sole issues are:
1. Whether or not, for a period of time, the Employer expected and required
of the Grievors, and the Grievors deliv, ered, a stand-by level of
availability but were paid only at the on-call level, and
: 2. If so, is there justification for departing from the provision in the
13
Collective Agreement that precludes recovery of'compensation for a
period pre-dating 20 days before the gdevance?
In our view, the necessary questions to be asked and answered to determine the
issue include:
1. What does the ERP officers' work consist of?.
2. When does the ERP officers' work commence?
3. Where does the ERP officer work?
The time it is expected to take for an ERP officer to get to a site when a personal attendance is
required is a factor to be considered but cannot properly be treated as the sole factor in
determining whether the Employer in fact expects and requires a stand-by level of service during
.on-call periods.
The uncontradictetl evidence of the Grievors was that the nature of the ERP
officer's job required the exercise of judgment and the application of knowledge. Indeed, when
a contact was made to an ERP officer by SAC, the ERP officer was expected to take appropriate
action, which might entail an attendance but equally .might not. part of the job was to take in
the relevant and available information from SAC, to assess it, to decic/e on a course of action
and to take it. This. function began immediately upon making contact with SAC or upon SAC
making contact with the ERP officer. That the carrying out of this function was "work" was
recognized by both the Grievors and by the Employer in that the Grievors were paid for
performing this function whether or not a personal attendance at a site was involved. It is also
apparent from the evidence that the ERP officers' place of work, while it might be his or her
usual office for most-other purposes, was, for purposes of carrying out the ERP officers'
functions, wherever he or she happened to be at the time contact &'as made with SAC and
ensuing communications took place and the site and' the route thereto if a site visit was
necessary. Clearly, if a spill notification came during office hours, the grievors, qua abatement
officers might go to the site. It could not be suggested that upon leaving the office to go to the
site, the officer had left work. Work for these employees included being on the road and getting
to occurrence sites. There is no logical distinction between the work done during normal office
hours, which included exercising judgment, applying knowledge, making phone calls and
travelling to and attending at sites, and the same activities done outside normal office hours.
In our view, once the ERP officer has commenced to carry out one or more of these functions,
work has begun and we hold that-work commences in a smd-by or on-call period when the
SAC contact is made and the ERP officer starts to take appropriate action in relation to the
occurrence which has presented itself. '
We were referred to the deciSiOn of Vice-Chairman Tacon in Delaquis, 1599/92,
which dealt with a call-back. In that case, the grievor, an ERP officer, alleged that dealing with
a spill matter, by telephone constituted a call-back to work. The Board agreed with that
con ten tion:
"In the instant case, there is no dispute that the grievor performed "work" in
15
handling the SAC call over the telephone. Nor is there any suggestion that the
'manner of responding to the call was inappropriate; indeed, the employer clearly
expects that ERP Officers will resolve some matters without attendance at a spill
site, at least outside of the normal hours at work. What is vigorously disputed
is the proper basis for calculating the compensation payable for the time spent by
the grievor on the telephone on May 13. The issue is whether the handling of the
SAC. call by telephone is sufficient to 'trigger the call back provision in article 14
or whether the ERP' Officer must actually attend at the spill site or the Minister
office to be entitled to call back pay.
~., The Board does not regard the phrase "called back to work" as requiring a
~! physical return to the Ministry office or the spill, site. In the Board's view, the
:'~ language indicates that the employee is, no longer free to carry on with his/her
. private life but must perform "work" for the employer. For that disruption and
inconvenience, the employee is entitled to call back pay. In many instances, the
.~, performance of "work" will necessitate a return to the employer's premises. In
· the instant case, it is recognized that the ERP Officer is "worldng" when he/she
~';~ handles a SAC call by telephone."
We come to the same conclusion, namely that the commencement of work in the
context of the ERP;s functions, do~s not necessarily require a personal attendance at an
occurrence site.
What then is the nature of the Employer's requirement and expectation of the
Grievors? In our view, it was the Employer's requirement and expectation that the ERP officer
be, for all practica! purposes, equally available to perform work whether on a stand-by period
or on an on-call period. The Employer's own communications to the ERP staff are the best
evidence of this. No evidence was led to contradict Mr. Hutt's testimony that at the inception
16
of the program, the 'Employer had let it be known that the midnight to 8:15 a.m. time period
was being designated on-call because it would be easy to reach the ERP officer who would
normally be expected to be at home and asleep. Mr. Hutt's testimony was straightforwar(/an(/
credible and we accept it. In November of 1986, Mr. Haniff directed that pagers be carried
on on-call periods, thus eliminating the difference, if any, between accessibility of the ERP
officdr while on-call as opposed to his accessibility while on stand-by. It is clear from all of the
communications from the Employer on the subject that the focus of its attention was accessibility
to the ERP officer. The Employer. wanted to be able to reach the ERP officer instantaneously
if possible, even during on-call periods, and the sole purpose in doing so must have been to
engage the ERP officer's mind with the occurrence on as close to an immediate basis as'
possible. Had the Employer not desired immediate accessibility, and thus an immediate setting '
to work on the part of the ERP officer as contemplated by the Ministry's policy manual, it is
tlifficult to imagine why it would-require that ERP officers carry beepers and later portable
cellular telephones while on-call. The sole reason for doing so is to effect immediate availability
for work as is contemplated by the requirements of this particular job. One might easily contrast
the requirement to carry a pager with a requirement that one call in every few hours or leave
a telephone number where one might be found.
Mr. McTavish's memo of September 24, 1991 is tellingly unresponsive to the
qttest/on which the Grievors posed in relation to the requirement that pagers be worn while on
call. He does no~ withdraw Mr. Haniff's order of 1986 that pagers be worn. He states that
17
while on~call "you should be able to be contacted easily .... with a cellular phone [it] would
really not require any time". The suggestion in the memo that ~'.only when you have received
authorized instructions .to be immediately available would it.be necessary for you to respond
immediately" seems to indicate that management was then taking the. view that the 'level of
availability required of the ERP 6fficer could be prescribed by management at the time of an
occurrence contact. This, with respect, is to put the cart before the horse, The length of time
it might take to get to a site will turn.-on the locatioa of the site, the road conditions and the
location of the ERP officer at the time of the occurrence. None of these is relevant to the point
in time when the ERP officer is expected to be accessible and available to start t° deal with the
matter about which he has been called.'
We do not find Mr. McTavish's memo of September 24, 1991 to be successful
in distinguishing the requirements-and expectations of the ERP officer while on-call as opposed
to what is expected during stand-by periods. To the contrary, it underlines the requirement of
immediate accessibility whether by pager or telephone.
The Employer has referred us to and places considerable reliance on the decision
of Vice-Chairman Slone in Mongrain, 9099/86, a decision issued in/une of 1988, The issue
in that case was whether or not the instructions during the on-call period actually required
something greater of the employees tha~ a reasonable level of availability for return to work.
· The Mongrain case is easily distinguishable from the circumstances before this panel in that in
Mongrain there was very little in the way of a factual matrix present and in particular,
management had given no direction to the grievors as to what was expected of them during 0n-
call periods. This is in contrast to the case before us 'where management has made it clear that
it requires ERP staff to wear a pager orcarry a cellular telephone while on-call. It may also
be the case that because of the relative antiquity of the M0ngrain decision, pagers and ~:ertainly
cellular telephones had not yet become commonplace applicances as they had by the time of the
grievances before us. Thirdly, the question of when "work" recommenced was not considered
in the Mongrain case and presumably was not an issue put before that panel. Accordingly,
although we do not disagree with the Mongraio decision in principle, it is so distinguishable on
its facts that it is not of assistance in deciding the issue on the facts before us. The Employer
has also referred us to the Samieson decision, 162/77, a decision of Vice-Chairman Prichard,
and we agree with the comment in that case that "...each case of this kind .will require a
judgment based on a consideration-of all the relevant circumstances and in recognition of the fact
that the parties' have created the two separate statuses. The particular arrangements will vary
from work place to work place and a decision in one setting may not be readily transferrable to
another". Likewise, in' the decision· of Walker and Taylor, 417/82, Vice-Chairman Samuels
remarked: "Firstly, the matter is not decided simply on the language which the employer uses.
Merely calling the pager system "on-call" does not make an Article i6 situation. The question
.is, what are'the real requirements of the duty? Secondly, one gets at these real requirements by
examining the circumstances of the job, and the written and verbal instructions to the
emplOyees.". The facts in that decision concern the manning of the OPP command trailer which
was used in emergency circumstances. The gfievors were placed on an' on-call rotation but the
very nature of the work involved, namely the manning of the OPP command trailer in
'emergency or disaster s!mations, required immediate response both to the pager call and to the
Order to bring the trailer. No other conclusion would make any sense in the circumstances, and
the grievances were alloWed. The parties have referred us to a number of other cases which
have dealt with claims for stand-by pay during a period designated by the employer' as on-call.
If a common thread can be found running thr~ough the cases, it is that one must look at the
nature of the work, including when and where it is done, the instructions given by management
and the expectation by management of the employees. Considering these factors, we are of the
view that there was no distinction between What wa~ expected and required of these Grievors
during on-call periods frOm what was expected and required of them during stand-by periods for
purposes of the application of the Collective Agreement.
This leads us to the Second question, which is whether or not the normal "20 day
rule" should apply. It was Mr. Hutt's evidence that the Grievors simply carried on ~upplying
one level of readiness for action throughout without seriously putting their minds to whether
there was any distinction or not because they were happy with their compensation and it was not
until the compensation scheme was threatened that they raised' their voices in protest. It is well
established jurisprUdence in this Board that what is required to start the clock running is a
subjective knowledge on the part of the Grievor that he has cause for complaint. We heard no
evidence from any of the Grievors that they were subjectively ignorant of the fact that they had
cause for complaint until the date of their grievances or up to 20 days prior to those dates.
Indeed, the rationale for not having grieved earlier was n"°t that the Grievors did not know that
they had a grievance but rather that they were overall content with their situation. On the
preliminary motion brought by the Employer, we held that we could not make a.finding that the
Grievors were estopped from claiming retroactive compensation for' the period prior to 20 days'
before the date of the grievance since, based on the evidence adduced for the.purposes.of the
preliminary motion, we could not conclude on a balance of probabilities that the Collective
Agreement had been violated at all. We have now heard all of the eviden'ce a/~d are of the view
that there is no material before us upon which we can draw the inference that the Grievors
lacked, for up to Six years in certain cases, subjective knowledge of the existence of a complaint
or difference. Accordingly, we are of the view that. the provisions of Article 27.2.1. should
apply, and that retroactivity in compensation shall extend only to 20 days prior to the date of
each of the grievances filed. The Union has sought declaratory relief and ia the hopes that it may
be of use and guidance to the parties in calculating the proper compensation and in governing
their future conduct, I make the finding that until the Employer withdraws ihe requirement to
carry pagers or cellular 'telephoneS, it is expecting and requiring a stand-by level of readiness
and ought to be paying its employees for such level of service in accordance with the Collective
Agreement. It ~,s hoped that the parties will work out the appropriate compensation therefor~~ a
it would be most regrettable if after the extensive evidence, the ma~ter had to come on once
again before this Board. Should the parties be 'unable to agree between themselves as to the
21
quantum of the compensation, the panel wilt remain Seized to quantify the award. There shall
be interest on any sums calculated to be payable.
DATED this 2nd day of 1/ay , 1994.
W. -Chairperson
T. B!&EN, Member
"I Partially Dissent" (see attached)
D. CLARK , 14ember
PART ~ AL DISSENT
GSB #2086/91, ETC.
OPSEU (Vandenheuve! e~ al)
and The Crown in Right of Ontario
(Ministry o£ the Environment)
I agree with the decision that retroactivity in compensation
should be limited to 20 days prior to the filing of the
grievances. However, with re,peet, I do. not share the view
of the majority that the Employer expected or required
stand-by level of response during on-call period~.
In the discussion paper of April 25, 1986 (Exhibit #4§) it
stated at page 3:
"Statistics kept since the start-up of the
Action Centre highlight that very few call-outs
have occurred between the hours of 12:00 a.m. to
8:00 a.m. It would not be appropriate to m~intain
a high cost "standby" service level for a time period
when few calls are likely to occur. The use of
on-call for this time period would mean however, that
response times would be considerably slower for those
'few events that do ·occur". (emphasis added)
The Employer, therefore recognized that response times would
be slower.
In addition, Mr. McTavish's memo to the E.R.P.' Staff of
September 24, 1991 (Exhibit #1Z), stated "... Management
does not expect an immediate response by an individua.1 when
he/she is on-cai1 0..". In my opinion, the Sarnia District
E.R.P. officers responded to the events as 'quickly as they
did more out of a sense of. dedication and professionalism
than an understanding that management expected them to
respond immediately. I fully agree that, as w~s indicated
in the award, the grievors were highly professional and
dedicated employees and that they brought to their duties a
Commendable degree of personal responsibility. The issue,
however, is whether the Employer expected and required of
the grievors a stand-by level of availability when on-call.
with respeet~ in my opinion, the EmD10yer did not and the
grievors were appropriately compensated.
Do~'M. Clark, Member