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HomeMy WebLinkAbout1991-2830.Fischuk et al.93-01-11 . '~t~l ': ' .': '": ONTARIO EMPLOYEs DE LA COURONNE I .,.: ~-~,',~..., .", .',:..2' ~,i ~ ~,"~% '.'~ CROWN EMPLOYE~S DE L'ONTARIO 180 DUNDAS STRF~£T WEST~ SUITE ~. ~00, 'rOFIONTO, ONTARIO. MSG fZ8 TELEPHONEtTELE,OHONE: ~4 16} 32~- ~J~8 ~o, ~U~ OUNDAS OUghT, ~U~AU e~O0, ~0~0 ~O~t~mO~. ~ ~Z~ 28~,~C0~: ~:~ ~e~ Under ~ CRO~ EMP~ES COL~CTI~ B~G~INING ~CT Before ~ GRImaCE BETT~~ BO~ BE~EN OPSEU (Fischuk et al) ~rievor - a~d - · The Cro~ in Right of Ontario (Minist~ off Correctional Semites) Employer ~EFO~': O. G~ay' ~ice~Chairperson P. ~1~ Me~er , M. O' Toole Me, er FOR THE P. Chapman UNION Counsel Ryder, Whitaker, Wright & Chapman Barristers & Solicitors FOR THE P. Young EMPLOYER Counsel Winkler, Filion & Wakely Barristers & Solicitors HEARING September 2, 1992 AWARD The grievors are full-time employees of the Ministry of Correctional Services at its Niagara Detention Centre. Four are employed as nurses, three as maintenance workers, and one as a recreational officer. They all grieve that the employer violated the current collective agreement by changing what had been a paid meal period into an unpaid meal period commencing January 1, 1992. The facts are not in dispute. Before 1992, all of the grievors received a twenty minute paid meal break. Their work day. ended 8 hours after it began. In mid-1991, they were advised that from January 1, 1992 on, their periods of work would be changed to insert a one half hour unpaid meat break: their work day would thereafter end 8~ hours aider it began. The collective agreement then in effect expired on. December 31, 1991. The parties later concluded a r~newal agreement with effect as' of January 1, 1992. The union did not raise the issue of the cessation of the grievors' paid meal breaks during negotiations for that renewal agreement, nor did it seek to bargain for the retention or re- introduction of their paid meal break. Prior to January 1, 1992, the grievors were required to remain in the detention centre during their twenty minute paid meal break. If an emergency arose, they could be required to return to work before the end of their meal period. If %hat happened, they were given an uninterrupted twenty minute meal 'break later in that same shift. With respect to the nurses, at least, the rule requiring them to stay in premises was modified slightly in July 1991: therea~er, when two nurses were at work, one was permitted to leave the building and eat her meal at a picnic table located just'outside the building. Nurses were not required to take their paid meal break at their desk, but if a nurse did so she was required to answer the telephone during her break. Commencing January 1, 1992, the affected employees were no longer required to remain on the premises during their meal breaks. They are free to leave the detention centre premises, and are not required to keep anyone informed as to their whereabouts during their unpaid meal breaks, Nurses are no longer required to answer the telephone if they remain in their office for their meal break. Maintenance mechanics carry pagers after 4:30 p.m., but are not required to answer them during their meal breaks. The van that grievor Fischuk often drives is equipped with a two- way radio, but there is no suggestion that he is required to monitor it, or advise the employer of his whereabouts, if he takes his lunch break while on the road. None of the other grievors carries a radio or a pager. If an employee chooses to leave the centre during a meal break, he or she has to go through security when leaving and returning. The detention centre is in a rural area. There is only one restaurant close enough to afford a quick meal during a half hour break. Employer representatives co~cede that that restaurant might not Suit the tastes of some of' the ggievors. They say they would consider granting a longer unpai'd meal break if employees wish to travel farther afield for a meal. There are generally two maintenance mechanics working on each shift. Their meal breaks are scheduled so that at least one is on duty at all times. The s2me is true with respect to nurses except during the supper break and on Sunday, when only one nurse is at work. An employee taking his or her unpaid meal break can still be required to return to work to deal with an emergency -- if he or she can be found or contacted through the public address system in the centre. When they work during their meal break, the grievors are paid for the additional time worked, at an overtime rate. There were three overtime claims from nurses for missed meal breaks in the first eight months of 1992. With the exception of grievor Fischuk, there were no overtime claims by maintenance mechanics during that period. It is not suggested that there is any sort of emergency to which the recreation officer has been or is likely to be called upon to I respor~d. Grievor Fischuk's duties are different from those of the other maintenance mechanics. In addition to his maintenance duties, he drives a van in which inmate:~ are transported to and from the detention centre. Sometimes the need to transporL inmates arises unexpectedly, and this can have an impact on Mr. Fischuk's work: schedule, Mr. Fischuk has been advised that he does not have a fixed meal time. He is to take his unpaid meal break when he can between 11:30 a.m. and 1:00 p.m. When. his schedule does not permit that, and he works through his meal break, he is entitled to additional pay at an overtime rate for the meal period. Mr. Fischuk averaged three such overtime claims per month during the f~rst eight months of 1992. He worked through his meal period on 24 of the 131 days he was at work during that period. Like the grievors and others in the grievors' classifications, cooks at the detention 'centre also work eight hours per day, 40 hours per weel/. Unlike the grievers, they continue to receive a paid meal break -- the cook~ are required to supervise i~mates in the preparation of meals while they take their meal breaks. The union's arg~.:ment is that the grievors are not "responsibility free" during their meal breaks and, accordingly, are entitled to be paid for the time they spend on those breaks. It says that the change from a paid meal break to an unpaid meal break was not accompanied by any substantial change in the grievors' work obligations. The increased freedom to leave the premises during the meal break was an inconsequential change, because there was nowhere they were likely to go. Relieving nurses of the obligation to answer the telephone when they ate at their desk was an inconsequen- tial change, because they had not previously been obliged to take their paid meal break at their desk. The collective agreement language on which the union relies is the language which indicates that employees are to be paid for the time they spend at work. As the language to that effect in the current agreement is the same as that in the one which was in effect prior to January 1, 1992, the union argues that the grievors are entitled to be paid for their meal breaks under the current collective agreement just as they were under the previous one. The fact that the employees received a paid meal break before 1992 does not necessarily establish that they were entitled to one in the circ~_~mstance~ which existed at that time. The employer could have been treating the employees more generously than its collective agreement obligations required. The doctrine of estoppel might have prevented the employer from discontinuing such favourable treatment before there was an opportunity to address the matter in collective bargaining. In this case, as union counsel acknowledges, the doctrine of .estoppel is of no assistance to the union because the employer gave the union ample and express notice of what it proposed to do, and the union had the opportunity to address the matter in collective bargaining before the employer did it. Except in order to analyze the matter in the way the union suggests, it would be unnecessary to decide whether the grievors were entitled to a paid meal prior to 1992. In the circumstances, the only question we have to answer is whether, in the' circ~_~mstances as they have existed since January I, 1992, the grievors are "at work" or "not responsibility free" during all of their meal break periods, so as to be entitled to compensation for each of those breaks. Evidence with respect to what the grievors' duties were before January 1, 1992 is of assistance only to the extent that it informs us about what their real duties were af~er that date. The question whether an employ.ee can be said to be "at work" or "not responsibility free" has been addressed in a number of decisions which are collected and reviewed in Re OPSEU (Addison et al,) and The Crown In Right of Ontario (Ministry of Correctional Services (GSB# 1314/85, released December 19, 1988, Wright). We do not propose to reproduce that review here.' The decisions reviewed there recognize that an employee may be entitled to compensation for a period during which he or she is not actually engaged in the active performance of regular duties, i~ some employment-related responsibilities continue during the period. They generally conclude that the fact that an employee may be called upon to respond to an emergency during his or her meal period does not alone support the conclusion that the employee was "at work" or "not responsibility free' during all of his or her mee.1 breaks. In the cases in which the Board ca~e to that conclusion, the occasions on which the grievors' meal breaks had been interrupted ware "rare', "occasional" or "relatively infrequentf With the possible exception of grievor Fischuk, that is equally the case here. The meal breaks for which Mr. Fischuk became entitled to overtime pay during the first 8 months of 1992 were clearly not infrequent. We do not know how many of those claims concerned a meal period interrupted by a request made after it began, a~i opposed to a meal period preempted by work assigned before the meal period began. It is possible that the interruptions were more than infrequent. Accordiv~gly, we have considered whether the frequency of meat break interruptions affects the question whether employees are entitled to be paid for break time which is not interrupted. The Board's analysis in cases of this sort usually begins with reference to the observation in Re OPSEU (Mitteregger) and The Crown In Right of Ontario (Ministry of Correctional Services) (GSB# 481/82, released November 17, 1983, Verity) that "the test as to whether an employee is working or deemed to be working is whether or not responsibilities continue during that period.' The union's argument comes amounts to this: because the responsibility to return to work if asked continues during every meal break, the employee is not "responsibility free' during meal breaks and is therefore entitled to be paid for them. The grievor in Mitteregger was a Correctional Officer at Millbrook, who claimed that he should have a paid meal break. He felt that he was not "responsibility free" during his meal breaks because he was not permitted to leave the building where he worked during a meal break, and was expected to return to work upon request during a break if there was an emergency. The Board observed that In the instant grievance, all of the evidence including that of the Grievor is consistent with the fact that a Correctional Officer at Millbrook has no responsi- §ilities during his meal period. On the rare occasion when there is an emergency during a meal break, a Correctional Officer is expected 6o return to work upon request and is subsequently paid accorcli~ly or alternatively given time in lieu thereof. Here, it cannot be said that the Grievor was under the coittrol of management or was considered on duty during meal break. The emphasized words indicate that the panel Which decided Mitteregger did not consider the continuing expectation that an employee would return to work if asked during a meal break to be a ~res~onsibility' of the sort they had in mind in formulating their frequently quoted test. The panel did not expressly suggest that it would have been such a responsibility if requests to return to work during the meal period had been other than "rare.' There are some employment responsibilities for which the test in Mitteregger is not accurate if it is read literally. For example, employees generally have a responsibility to their employer to keep certain things they learn at work confidential. That respOnsibility continues 24 hours a day. Its continuation does not entitle employees' to 24 hours' pay per day. An employee may be entrusted with a vehicle or other property belonging to the employer, which remains in the employee's possession outside of what would otherwise be his or her working hours. The employee has a continuing responsibility for that property so long as it remains in his or her possession. The continuation of that sort ofresponsibihty during what would otherwise clearly be non-working hours does not alone turn those hours into working hours for pay purposes, without other responsibilities attached which limit the emPloyee's freedom to deal exclusively with his or her personal interests during such periods. In Re OPSEU (Union Grievance) and The Crown In"Right of Ontario (Ministry of Transportation and Communication) (GSB# 724/83, released April 30, 1986, Samuels), the Board observed that an employee's "responsibility for the [employer's] vehicle is not sufficient alone to entitle an employee to payment from the employer." In Re OPSEU (Sheppard) and The Crown In Right of Ontario (Ministry of Correctional Services) (GSB# 510/82, released 1986, Roberts), the Mitteregger and Union Grievance decisions were cited in support of the proposition that "the Board has recognized that it takes more than a de minirnus degree of responsibility for an employee to be deemed to be working within the meaning of this rule." The' difficulty in applying this interpretation of the earlier decisions is in identifying what it is about a responsibility that determines what the responsibility's 'degree" is, and whether its "degree" is "de minimus.' Does the degree of responsibility inherent in the expectation that an employee will return to work if asked depend on how often he or she is asked? In the case of the responsibility to take care of employer property, does it depend on the value of the property or the nature of the risk to it? In the case of the responsibility to keep information confidential, does it depend on the value of the information or the intensity of the temptation to disclose it? In argument, the vnion relied particularly on the result in the Union Grievance decision cited earlier, in which the Board found that certain Traffic Controllers were not responsibility free during their meal breaks, because they were expected to return · to work before the end ~f a break if asked by their dispatchers. The conclusion in that decision turned on findings that they had at one time clearly been "on call' for the entire eight hours of their shift, including the meal break, that a decision to relieve them of that obligation during their meal break l~ad not clearly been communicated to them, that they continued to keep dispatchers informed of their whereabouts during the meal break and that dispatchers continued to interrupt their meal breaks to have them deal with roadway emergencies, which were the regular concern of their employment. The question whether an employee is entitled to be compensated for time spent on a meal break turns on what the employee's'-resp°nsibilities were during that meal break. Except to the extent that it may assist in resolving a dispute about whether an employee is ~eally "on call~ during all of his or her meal breaks, evidence about the frequency with which the employee is actually called upon to work through or return to work early from his or her meal break does not assist in determining what · responsibilities he or she has during the meal break on days When such requests are not made. ' As we have already observed, an employee will not always be "at work" for pay purposes during a petiod in which he or she may be said to have some continuing responsibility to the employer. It appears to us that the question whether an employee is "at work" for pay purposes while bearing a continuing responsibility to his or her employer must turn on whether and tO what extent that bearing that responsibility limits the employee's freedom to deal exclusively with his or her personal interests during the period in question. Here, there is no suggestion that any of the grievors was or is mistaken about the employer's expectations or reqtiirements. The grievors are not "on call" during their meal breaks. They are not obliged to remain on the premises during the meal break. They are not obliged to establish a communications link with the workplace when they are away from it during tbs meal break. They are not obliged to keep the employer apprised of their whereabouts during the meal break or otherwise obliged to facilitate the employer's being able to find them if an emergency arises. As a practical matter, it seems likely that most of the employees at the detention centre wiI1 be accessible during their meal breaks most of time. If they can be located, they may be required to respond to an unanticipated'need for their services. When they are called upon to do tha~, they are entitled to additional compensation - at an overtime rate, unless some other arrangement is made. They have a "responsibil- ity" to return to work on request but, unless and until there is such a request, the existence of that responsibility does not diminish the freedom the grievors would have enjoyed during the meal break ff they had no such responsibility. For that reason, it does not appear to us that the continuation of that responsibility during an employee's uninterrupted meal break causes the employee to be ~at work" during that break for pay purposes, when there is no ~)ther accompanying obligation or restraint. That is so for uninterrupted meal break time no matter how many interrupted meal breaks the employee has. For these reasons, these grievances are dismissed. Dated at Toronto this tlr. h day of January, 1993 P. Klym, Member M. O~Toole, Member