Loading...
HomeMy WebLinkAbout1991-2534.Badeau.93-02-18 ONTARIO EMPLOY~:$ DE LA COuRONNE CROWN EMPL 0 YEE$ DE L 'ON TA R/O GRIEVANCE C,OMMISSION DE SE3'rLEMENT REGLEMENT BOARD DES GRIEFS ~'~0 DUNDAS STREET WE.$T, SUITE2100, TORONTO, ONTARrO. M$G fZ. 8 TELEPHONEIT~L~PHONE, (4'~6,~ 3£~-~388 180, RUE DUNDA,S OLIEST, BUREAU 2100, TORONTO (ONTARIO), MS(~ ~IZ$ FACSSM/t..E/T~L~'CO,°;~ ; (416] ...72~- 12.9~ 2534/91 IN THE I~TTER OF ~N ~RBITI~TION Under THE CROWN EHPLOYEES COLLECTIVE B~G~iNING ~CT Before THE GRTEVANCE SETTLE~SNT BO~,RD BETWEEN OPSEU (Badeau) Grievor - and- The Crown in Right of Ontari° (Ministry of Health) Superior Ambulance Service Employer B~FORE: S. Stewart Vice-chairperson M. Lyons Member F. Collict Member FOR THE G. Adams UNION Grievance officer Ontario Public Service Employees Union FOR THE E. Keenan EMPLOYER Counsel Mathews, Dinsdale & Clark Barristers & Solicitors HE~RING October 29, 1992 DECISION In a grievance dated January'8, 1992, Mr. J. Badeau alleges a violation of Article 23.01 of the Collective Agreement in that he was denied payment for the hours entailed in the completion of a training course. Mr. Badeau claims the payment of nine hours wages. At the outset of the hearing, Ms. Keenan advised the Board that the Employer had a preliminary objection with respect to the arbitrability of the grievance. It was the Employer's position that the Board had no jurisdiction to consider the merits of this grievance as it relates to a matter of training, which by virtue of section 18(1)(b) of the Crown EmploYees Collective Barqainin~ Act is a matter that the Employer has an exclusive right to determine. Mr. Adams advised the Board that he was taken by surprise by this preliminary objection and was not prepared to make submissions on this issue. The Board determined that in order to make efficient use of the day, it would proceed first by dealing with the merits of the grievance. If the Employer was unsuccessful on the merits, the Board would obtain submissions on the preliminary matter. One further matter that should be noted at the outset of this decision relates to whether the Board ought to consider a decision provided by Ms. Keenan subsequent to the hearing. Ms. Keenan referred to the decision in the course of her argument, however she did not have a copy. in her possession tO file with 'the Board. Ms. Keenan undertook to forward the decision to the Board. By letter dated November 16, 1992, Mr. Adams brought the Board's attention to the fact that the decision had not yet been filed and requested that the Board proceed to consider the~matter without reference to the decision. By letter dated'November 19, 1992 Ms. Keenan provided a copy of the decision to the Board and advised that her failure to forward the decision earlier was simply an oversight. Mr. Adams forwarded written submissions dealing with the substance of this decision however he maintained that the Board should decline to consider this decision given the delay in it being provided. While we agree with Mr. Adams that such undertakings ought to be complied with promptly, we did not feel that the oversight in this case merited a refusal to consider the decision. Accordingly, the decision was reviewed by the Board in the course of its deliberations. There was no real dispute about the facts giving rise to the grievance. Mr. Badeau has been employed by Superior Ambulance as a part-time ambulance attendant/driver since approximately 1976. In 1990, Regulation 14 under the Ambulance Act was amended to include the requirement that an emergency medical attendant who is a part-time employee: "shall have successfully completed an emergency first response course approved by the Minister or a course that is equivalent thereto". This requirement for the completion of an emergency first response course was in addition to previous requirements that part-time emergency medical attendants possess CPR and first aid certification. The Regulation prohibits an operator from employing persons who do not meet the prescribed qualifications. While the amendment was passed in 1990, a training system was not established by the Ministry of Health until 1991. Mr. Badeau testified that he was told about the course by Mr.. B. Tutty, his supervisor. Mr. Badeau testified: "I was told about the course coming up. He [Mr. Tutty] told me I had to take it or I'd be laid off." Mr. Tutty had applied for "equivalency" for Mr. Badeau given Mr. Badeau's length of service, however, this application was rejected. Mr. Tutty testified that he specifically advised Mr. Badeau that it would be necessary for him to take the course in order to remain qualified to continue his employment. Mr. Tutty testified that he also told Mr. Badeau that it would be necessary to take the course at his own expense. Mr. Tutty was the person designated by the Ministry of Health to teach the course. The course Was held at a fire hall, not at the offices of Superior Ambulance, It was initially intended to be a twenty-four hour course, however, because of the experience of the persons taking the course, the course was reduced to nine hours. There was no cost to the grievor for ~the course or materials as this was paid for by the Ministry of Health. However, as previously noted, the grievor was not compensated for the time that he spent in attending this course. There was some evidence with respect to the past practice of the employer with respect to compensating employees for time spent on courses. Mr. Badeau testified that he has completed First Aid and CPR courses on his own time without compensation. He has attended three courses at McMaster University, a patient evaluation course, a neo-natal course and a defibrillation course. He was compensated by the Employer for these courses. He also gave evidence about training he received on a new reporting form in 1990. Mr. Badeau's time spent in attending this training program was paid for by the EmploYer. Mr. N. Posteraro, Local President of the Union, testified that in addition to the training referred to by Mr. Badeau, there was training for matters, such as vehicle extraction arranged for by the Employer which part-time employees attended and' were paid. for. Mr. Posteraro was a member of the Union's negotiating team at the time the Collective Agreement under which this grievance arise~ w~s negotiated. ~e testified that the Employer did not make any suggestion at that time that training of the type at hand would not be compensated. However, there was no suggestion in his evidence that any particular representation with respect to payment for training was made by the Employer. The relevant provision of the Collection Agreement is Article 23 which provides as follows: _ARTICLE Z3 - TRAININ~ 23.01 (1) The Company will endeavour to schedule in house training sessions and A.L.S. training during regular working hours. In the event that this is not feasible., and such training occurs outside regular hours, the employee will have the option of receiving his regular straight time rate of pay for each hour of such training and or the banking of such hours to be used at a time mutually agreeable to the employee and Company, but in any event, before the end of the fiscal year (i.e. April 1 to March 31) in which the hours were banked. This understanding does not apply to any time spent by an employee in obtaining the following: E.~.C.A., C.P.R., First Aid Certificate, Driver's License, or any recertification including A.L.S. procedures. In the event that the Crown and OPSEU amend their collective agreement with respect to working conditions during the term of this Agreement regarding A.L.S. recertifi- cation procedures,'the employer agrees to adopt such amendments as part of this agreement. (2) Continuing Education'for Paramedics-- lieu time practice will continue. Counsel were in agreement that this provision applies to part- time employees. Also of relevance is Article 4 of the Collective Agreement relating to management rights,'which in Article 4.01(d), after enumerating specific management rights provides for the authority on the part of management: To determine and exercise all other functions and prerogatives which shall remain solely with the Company except as specifically limited by the express provisions of this Agreement... The issue to be determined is whether Mr. Badeau's training in this instance constitutes "in house training" within the meaning of Article 23.01. Mr. Adams submitted that this was training taken by Mr. Badeau at the direction of the Employer and emphasized that the training in issue here is not specifically' referred to in the second Daragraph of Article 23.01(1). In his submission, unless the kind of training is specifically excluded in the second paragraph of Article 23.01 it must be considered to be covered by the first paragraph of that provision. Ms. Keenan argued that as the requirement for this qualification was not imposed by the Employer and was not provided by the Employer, it does not constitute "in house training" within the meaning of the first paragraph of Article 23.01(1). In her submission, the specific kinds of training referred to in the second paragraph of Article 23.01(1) are merely illustrative of the kinds of training that is not considered to be "in house training" and is not an exhaustive list. Ms. Keenan referred the Board to an American arbitration award, Brinks Inc. 73 LA 162 (Harman) in which'the arbitrator found that the employer was not obligated to pay employees for training which was mandated by legislation. The training in issue' in that instance was education in relation to firearms which employees were required to carry in the course of their employment. We agree with Mr. Adams' submission that the Brinks award, supra, is not of a good deal of assistance in deciding the case. This grievance is to be determined on the language of Article 23.01, specifically, whether the training referred to is properly characterized as "in-house training". We wish to preface our comments on this clause by stating that even if we were to accept that Article 23.01 is ambiguous, the extrinsic evidence that was called does not, in our view, provide support for either the Union or the Employer's 'interpretation of this provision. The extrinsic evidence also'falls short of establishing an estoppel as it does not establish a representation of any kind as to how Article 23.01 would be interpreted, nor does the evidence establish a practice with respect to training similar to the kind in issue in this proceeding. Accordingly, we are left with the language of the Collective Agreement itself. After reviewing and reflecting on the language of the Collective Agreement it is our conclusion that the training in issue here does not constitute "in-house training" within the first paragraph of Article 23.01. We agree with Mr. Adams that the listing of specific kinds of training that is excluded from in-house training in the second paragraph of Article 23.01 would tend to suggest that all other training not specifically enumerated is included in the training referred to in the first paragraph of that Article. ~owever,.it is not simply "training" that is referred to in the first paragraph of Article 23.01. The reference is to "in-house training" and that particular phrase must be given meaning. In our view, the plain meaning to be given to "in-house training" is training that is initiated by the Employer. While it need not be conducted by the Employer, in that the fact that the services are provided by someone hired by the Employer to provide training does not disqualify it as "in- house training", it is our view that the language of the first paragraph of Article 23.01 contemplates internal training that the Employer must initiate. That is not the case in this instance. The training in this instance was initiated by the Ministry of Health by virtue of an amendment to the regulations of the Ambulance Act and relates to minimum standards or qualifications for employment. The exclusion of this kind of training from "in-house" training is consistent with the kinds of training that are specifically excluded in the second paragraph of Article 23.01. These matters all relate to minimum qualifications for employment and in our view, are illustrative of the kinds of training that are excluded from Article 23.01. Accordingly, it is our conclusion that the training in issue here does not constitute "in-house" training and, accordingly, Mr. Badeau is not entitled to comDensation for the time entailed in obtaining this training. For these reasons, the grievance is denied. Given our conclusion with respect to the merits o~ this grievance there is no need to address the preliminary objection of the Employer referred to at the outset of this decision. Dated at Toronto, this 18~h day of February, 1993. S. Stewart, Vice-Chairperson G.S.B. 2534/91 OPSEU (Badeau) and The Crown in Right of Ontario (Ministry of Health -~Superior Ambulance Service) Addendum I concur with the decision in this matter; however, given that-- * the grievor was a long term employee; * itwas the Ministryof Health that amended Regulation 14; * this amendment reqired the grievor to take an ~nergency first response course in order to maintain his position; * the ~ptoyer registered the grievor for the.course; * the grievor took the course at the employer's request; * the employer wanted to keep the grievor as an e~ployee; in the interest of maintaining a good employer-employee relationship with the grievor, the eg01oyer should have considered reimbursing the grievor, 'without prejudice', for his lost time in this unique circumstance. Dated at Toronto this 15th day of February 1993.