HomeMy WebLinkAboutBaker 17-02-221
IN THE MATTER OF AN ARBITRATION
BETWEEN:
THE CORPORATION OF THE COUNTY OF FRONTENAC
(the “Employer”)
-and-
ONTARIO PUBLIC SERVICE EMPLOYEES UNION AND ITS LOCAL462
(the “Union”)
AND IN THE MATTER OF THE GRIEVANCE OF TERRY BAKER
2015 – 0462 – 0023
Louisa M. Davie - Sole Arbitrator
Appearances
For the Union: Lori Davis
For the Employer: Mark Mason
2
Award
Two grievances were referred to arbitration before me. In each grievance the
grievors, Terry Baker and Kyle Alaver, allege that the Corporation of the County
of Frontenac ("the Employer") violated the collective agreement to which it is
bound together with the Ontario Public Service Employees Union, Local 462
("the Union") when the Employer failed to provide premium pay when the
grievors were unable to take a second thirty (30) minute meal break during their
twelve hour shift on February 2, 2015.
The hearing of these grievances was scheduled to commence in Kingston on
February 22, 2017.
On February 21, 2017 the Union advised that the grievance of Kyle Alaver had
been withdrawn.
On February 21, 2017, I was also advised that the grievor, Terry Baker, was
unable to attend the hearing as he was in Panama. Mr. Baker had received
notice of the date, time and place of the arbitration hearing by letter from the
Union dated September 21, 2016. Despite having had five months' notice of the
hearing Mr. Baker has not provided a satisfactory explanation to the Employer,
or to the arbitrator, as to why he arranged to be in Panama on the date he knew
his grievance was to be arbitrated. Nevertheless the Employer did not insist that
the grievance be dismissed by reason of the grievor's non-attendance. Instead a
teleconference hearing with respect to Mr. Baker's grievance was conducted on
February 22, 2017.
I find the following facts gave rise to the grievance.
The grievor is a paramedic. At the time relevant to the grievance he was working
a twelve hour shift. The collective agreement entitles paramedics to two (2) meal
breaks of thirty (30) minutes each in a twelve hour shift and provides for premium
pay if those meal breaks are missed/delayed.
On February 2, 2015 the grievor was partnered with Kyle Alaver. It was a busy
day. As a result the grievor did not have an opportunity to take his first thirty (30)
minute meal break. In midafternoon, at approximately 2:45 PM, the grievor saw
his supervisor and advised him that he had missed his first meal break. Although
the grievor had not called his supervisor as he was obliged to do (see below) the
supervisor recognized that it had been a busy day with limited opportun ity to call.
The supervisor sent the grievor back to base to take his first meal break.
3
During this exchange about the missed first meal break the supervisor reminded
the grievor of the obligation to call with respect to the second meal break.
The grievor did not call or communicate with the supervisor about the second
meal break prior to the end of his shift that day. He subsequently applied for the
premium payout associated with missed/delayed meal breaks for both the first
and second meal break. The Employer authorized the premium associated with
the first meal break but not the second meal break. It was the Employer's
position that notwithstanding the opportunity to do so the grievor had failed to call
his supervisor to request the second meal break. He was obliged to do so in
order to be eligible for the premium. From the Employer's perspective, as the
precondition to receipt of the premium was not met, the grievor was not entitled
to the premium.
Having regard to the Employer's evidence with respect to the grievor's calls for
the remainder of the day on February 2, 2015 after he spoke with the supervisor
in mid afternoon, and in the absence of any evidence to the contrary, I accept the
Employer's position, and find as a fact, that the grievor had sufficient opportunity
to call his supervisor about his second meal break after eight (8) hours of the
shift had passed. He failed to do so.
The collective agreement contains a Letter Of Understanding ("LOU") with
respect to meal breaks which has the following provisions:
1. Each paramedic is entitled to two (2) meal breaks of thirty (30)
minutes each in duration in a twelve (12) hour shift.
2. Paramedic partners will take their meal break at the same time and
location.
3. The Employer will use reasonable efforts to ensure that meal breaks
will be uninterrupted, where possible, subject to the operational
requirements of the service (Codes 3, 4 and 8).
4. The first meal break shall commence prior to the commencement of
the sixth (6th) hour of the shift (e.g. after 5 hours). The paramedics
will request their break by calling their supervisor/designate when
duties permit the meal break to be taken and as soon as reasonably
possible after three and one half (3.5) hours have passed since the
commencement of their shift. The supervisor/designate will then
contact dispatch to have the paramedics placed on a "conditional
availability" ("CAV") to facilitate the scheduling of the meal break at
the earliest possible opportunity.
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5. If the first uninterrupted meal break does not commence prior to the
start of the sixth (6th) hour of the shift the paramedics shall begin to
receive time and one half (1.5) for all hours worked from the
commencement of the sixth (6) hour of work until the uninterrupted
meal break is concluded.
6. Paramedics will not receive the additional payment referenced in
paragraph five (5) above if they have not followed the procedure set
out in paragraph four (4) above.
7. The second meal break shall commence before the commencement
of the eleventh (11th) hour of the shift (e.g. after 10 hours). The
paramedics will request their break by calling their
supervisor/designate when duties permit the meal break to be taken
and as soon as reasonably possible after eight (8) hours have
passed. The supervisor/designate will then contact dispatch to have
the paramedics placed on a CAV to facilitate the scheduling of the
meal break at the earliest possible opportunity.
8. If the second uninterrupted meal break does not commence prior to
the start of the eleventh (11th) hour of the shift the paramedics shall
begin to receive time and a half (1.5) for all hours worked from the
commencement of the eleventh (11th) hour of work until the
uninterrupted meal break is concluded or the end of the shift as the
case may be.
9. A paramedic will not receive the additional payment referenced in
paragraph eight (8) above if they have not followed the procedure set
out in paragraph seven (7) above.
…
11. Nothing in the foregoing shall be interpreted as a restriction on the
Employer's ability to elect to take paramedics out of service to ensure
that a meal period or meal periods are provided within the time
frames set out above or to otherwise direct a paramedic to take the
meal break within these time frames.
In addition, a joint Memorandum dated May 2, 2011 to all paramedic staff, signed
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by the Chief of Paramedic Services and the grievor when he was President of
the Local Union states:
This memorandum will serve as a joint communication from the
above in regards to Meal Premiums. As all Paramedics are aware
there was a mediated settlement on October 27, 2007 which
provides clarity of when a meal break is taken and the requirements
required to follow....
To resolve the issue, the following has been agreed and understood:
1. ...
2. Paramedics must call the Operations Supervisor at the first
available time after the first 3.5 hours of work. This is a critical
component because if there is no call, there will be no
premium pay out. The employer must be afforded the
opportunity to mitigate the meal premium and that can only occur if
the call is made no matter what station you are at.;
3. When a Paramedic is on standby or going to, you must still call
the supervisor as per point 2. They will determine whether to
continue to pay your meal premium or return you to base.
(bolded emphasis is in original)
The Employer submits that language of the LOU in the collective agreement and the
May 2, 2011 Memorandum is clear and unambiguous. In order to receive the premium
paramedics must call their supervisor to request their meal break. The grievor did not
call the supervisor and therefore no premium is owed.
The grievor's position is set out in a memo which states
"On the day in question we were busy. When we got a chance we told our
supervisor in person that we had not taken either of our breaks as of yet. He
sent us back to base to take our first break. We got busy again and did not get
back to base until the end of our shift at which point we were relieved by the night
crew.
6
The employers argument is that we did not call the supervisor when we got back
to base. We did not call as we were no longer on duty so we did not have to be
placed on a CAV as the award states. "The paramedics will request their
mealbreak by calling the supervisor when duties permit the mealbreak to be
taken. The supervisor will then contact dispatch and the crew will then be placed
on a CAV, conditional availability to get their break".
The Employer also ought to be aware of our situation as they have a radio in all
of the FPS offices following the calls on the road, each supervisor on duty has a
mic in their ear listening plus a radio in their vehicle and a AVL which is a
computer screen that shows the whereabouts of all vehicles at any moment of
the day and it even allows them to go backwards in time. "
I have considered these submissions and have determined to dismiss the grievance.
As indicated herein I have accepted the uncontradicted evidence of the Employer that
the grievor had the opportunity to call the supervisor with respect to his second meal
break after eight (8) hours of his shift had passed. The grievor himself acknowledges he
did not call. That is really the end of the matter. The LOU, the May 2, 2011
Memorandum and the Employer's long-standing practice are clear that there will be no
premium pay out if the paramedic has not called his supervisor to request the meal
break.
I reject the grievor's submissions that he did not call because he did not have to be
placed on "conditional availability". The obligation on the paramedics to call contained in
the second sentence of paragraph 7 is not dependent on whether or not the supervisor
can contact dispatch and have the paramedic placed on "conditional availability". The
obligation of the paramedic to call stands on its own. The purpose and reason for the
call to the supervisor is as set out in the May 2, 2011 Memorandum namely, that " the
employer must be afforded the opportunity to mitigate the meal premium and that can
only occur if the call is made..." (In my view this is reinforced by paragraph 11 of the
LOU in which the Employer retains the ability to take paramedics out of service or direct
a paramedic to take a meal break as opposed to placing a paramedic on "conditional
availability").
The failure of the grievor to call meant not only that he could not be placed on
conditional availability (if that had been possible) but also that the Employer did not
have any other opportunity to mitigate the premium payout.
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Similarly I reject the grievor's alternate submission that in any event the supervisor was
aware of the circumstances that day as his movement and calls were, or could be,
monitored by radio and other technological means. In the face of clear and explicit
language requiring a call by the paramedic to request the meal break it is no answer to
say that the Employer could have used other means at its disposal to determine
whether and when breaks could/should be taken.
The LOU and the May 2, 2011 Memorandum make it clear that the first and primary
obligation is on the paramedic to call and request their break. The grievor did not do so
and therefore is not entitled to any premium payout associated with the second meal
break on February 2, 2015.
For all of these reasons the grievance is dismissed.
Dated at Mississauga this 22nd day of February 2017
Louisa Davie
Louisa M. Davie