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HomeMy WebLinkAbout1992-1159.Andrews&Forget.94-10-04 -1. ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO . GRIEVANCE COMMISSION DE \ 1111 , SETTLEMENT REGLEMENT BOARD DES GRIEFS ( 180 DUNDAS STAEET WEST SUITE 2100, TORONTO, ONTARIO M5G lZ8 TELEPHONE/TELEPHONE (416) ~26- 388 180, RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) M5G lZ8 FACSIMILE/TELECOPIE (416) 326-1396 1159/92, 1647/92, 3254/92 IN THE MATTER OF AN ARBITRATION Under ~ THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Andrews/Forget) Grievor - and - The Crown in Right of Ontario (Ministry of Health) Employer BEFORE: O. Gray vice-Chairperson T. Browes-Bugden Member F. Collict Member FOR THE J. Paul UNION Grievance Officer Ontario Public Service Employees Union FOR THE P. Toop EMPLOYER Employee Relations Officer Management Board Secretariat HEARING April 5, 1993 August 24, 1993 I . + Decision- Scott Andrews and Roger Forget are aIr ambulance officers who serve on the aIr ambulance biased at the Toronto Island AIrport. They have filed gnevances allegmg that "the employer has VIolated the collectIve agreement, namely ArtIcle 17, by refusIng to rermburse the costs of meals" purchased on May 26, 1992 (both gnevors, GSB File 1159/92), July 9, 1992 (Mr Forget only, 1647/92) and November 30, 1992 (both gnevors, 3254/92) On the first day of heanng, the uDlon's representatIve asked that we also deal that day With the gnevors' gnevances m GSB File 2210/92 Counsel for the employer opposed the request. There had been no nonce that such a request would be made and File 2210/92 had not been scheduled for heanng before us that day We ruled that m those Circumstances we would not expand the scope of our heanng to uiclude other gnevance~ when we dId not have the consent of both partIes. - Air ambulance officers prOVIde advanced hfe support sel'Vlces to cntlcally ill or mJured persons while they are prepared for flIght and flown from a small hOSpItal or other SIte to a major urban medIcal centre - usually one m Toronto AIr ambulance officers at the Toronto AIr Ambulance Base work 12 hours shrfts. 7'00 am. to 7'00 pm. or 7'00 pm. to 7'00 am. Dunng each sluft, one all' ambulance serves all of southern Ontano On the occaSIOns referred to m the gnevances before us, the gnevors were working the 7'00 am. to 7'00 pm. slnft. Alocalpohcy dated September 1, 1992 prOVIdes that air ambulance officers on that sluft will have a smgle meal break, to be taken some time between 12 noon and 2 pm. (An earher pohcy, m force when the aIr '. '~ \ -2- i ambulance flew out of Buttonville arrport, contemplated that a shIft longer than eIght hours would have two meal break penods: 1200 to 1400 hours and 1700 to 1900 hours \ m the case of a slnft begmning at or before 0900 hours.) AIr ambulance officers may be called upon dunng a meal break to resume theIr dutIes, an9. are paId for the entIre shIft, IncludIng the meal break. Members of an aIr ambulance crew must get pernnSSlon from the aIr ambulance <hspatcher before actually takmg a meal break. {The need for the aIr ambulance IS sometunes so great that the aIr ambulance officers on duty end up worlung through the nnd-slnft meal penod, gomg drrectly from one call - to another and stopping at the base only long enough to clean up and re-prOVISIOn the aIrcraft. In those cIrcumstances, they may only be able to eat on the run. A number ofl Issues Involvmg meals and meal breaks had been matters of controversy at the Toronto AIr Ambuiance Base for some tune before these gnevances were filed. One of the Issues concerned the CIrcumstances m whIch au ambulance officers will be reunbursed for meals they purchase ArtIcle 17 of the collectIve agreement prOVIdes that 17 2.1 Cost of meals may be allowed only. 172.2 If durmg a normal meal period the employee 18 travelling on government busmess other than. ( (a) on patrol duties, except as provided under sub. sectiOn 172.3, or (b) wlthm twenty four (24) kilometres of his assigned headquarters, or (c) WIthin the metropohtan area m which he 18 normally workmg; 172.3 If an employee on patrol dutIes is reimbursed for overnight accommodation req\lired for the trIp, 17 2.4 If, in an unusual non recurrmg situatIon, the department head authorIZes such payment; 17 2.5 If, tn any re<;urring situation, the Management Board has authorized such payments because of the special nature of the aSSIgnments. \ ) ~ ;. -3- "- 17 5 Before approving clauns for meals the branch head should be satisfied that the charges are reasonable for the localIty Although we heard eVidence about the ClIcumstancesm whIch the gnevors purchased the meals .for whIch reImbursement IS claImed m these gnevances, It IS unnecessary to reCIte that eVidence m 'detail here Dunng argument" the Uluon's representatlve conceded that those CITcumstances dId not gIve nse to an entltlement under Artlcle 17 2.2 Ihs argument was that those cucumstances were Instances of a "recurnng sItuatIOn", m winch 3ll' ambulance officers travel dunng theIr normal meal both Wltlnn and beyond 24 kilometres of theIr base but, due to the nature of theu aSSIgnment, are unable to stop for a meal wlule they are beyond the 24 lolometre hnnt. He argued that Artlcle 17.2.5 gives Management Board a dIscretlon to authonze payments m a recurnng sItuatlon m respect of aSSIgnments of a speCIal nature, and that tins dIscretlon must be exerCIsed reasonably Minutes of a November 1991 meetIng of the ERC Comnnttee for the Toronto AIr Ambulance Base show that union representatIves were told tins Wlth respect to the Issue of "meal claims" Leanne Yarrow explained that the issue had been forwarded to Jon Hambides and the Standards committee due to provmce wIde implIcations. The Secretariat will be J:"equU"ed to make the deCISIOn and she cannot speculate on the time frame. Jon Hambides IS Manager, AnalYSIS & Plannmg m the Emergency Health SerVIces Branch of the MinIstry of Health. He attended a meetlng of that ERC CommIttee on November 20, 1992 Minutes of the meetIng contam thefollowmg under the headmg "The need for more flexibility m reImbursement for meals obtamed Wlthm 24km of headquarters" General Discussion. The reason that this issue has not been brought to Management Board of Cabinet; due to the small number of people that it concerns. With common sense and increased latitude of interpretatIon at the local level the need for the issue to ,be heard at ArbitratIOn or Management Board of Cabinet may be averted. , ~ . -4- I The umon says that as a result of thIS refusal to present the matter to Manag,ement Board, Management Board has failed to turn Its mmd to the matter and tlus failure amounts to 'a breach of the obhgatIon to exerCIse Its dIscretIon under ArtIcle 17 2 5 \ ill a reasonable manner It says that the question whIch Management Board ought to have consIdered IS the general questIon whether claIms wluch anse ill the CIrcumstances common to these clanns - the Cll'cumstances whIch make each a "recurring sItuatIon'! - should be reunbursed, not the questIon whether the partIcular meal claIms ill Issue here ought to be reunbursed. ( The unIOn argues that ArtIcle 17.2 5 IS analogous to ArtIcle 55 and other Articles wluch contemplate the exerCIse by the employer of a mscretIon. ArtIcle 55 prOVides that 55 1 A Deputy Mmister or his deSIgnee may grant an employee leave-of-absence WIth pay for not more than three (3) days in a year upon special or compassionate grounds. 55 2 The grantmg of leave under this ArtIcle shall not be dependent upon or charged against accumulated credits. The unIOn's representatIve refers to Kuynt}es, 513/84 (Venty), O'Bnen, 1157/86 c (Gandz), Sandham, 802/92 (DIssanayake) and Montgomery, 0605/92 (Finley), In winch the I Board reViewed deCISIons made under ArtIcle 55 agamst a "reasonableness" standard. He also refers to Bradley/Lowe, 169/89 (Venty), wluch held that a deCISIOn ~ under ArtIcle 17 5 must not be made ill a manner winch IS arbItrary, mscnnnnatory or ill bad faIth, BaylLS, 1762/89 (Samuels), winch held that a gnevance was arbitrable when It alleged bad froth in the apphcatIon to a gnevor of the salary prOViSIons of the collectIve agreement, and Anderson, 3005/90 (Watters), winch held that the employer's management nght to aSSIgn and schedule an employee's hours of work must not be exerCIsed unreasonably t .' -5- AgaInst tIns background, the umon argues that when a prOVlSlon of the collectIve -, agreement "contemplates" the exerCISe by the employer of a "dIscretIon", the dIscretIon must be exerCised ill a reasonable manner It says that ArtIcle 17 2 5 contemplates the exerCIse by the employer of a dIscretIon to authonze payment of the cost of meals In partIcular sorts of recurnng Sltuatlons, where the aSSIgnments are of a speCial nature \ It says that It IS not reasonable to expect workers not to eat. It argues that It IS not \ reasonable or in good froth that the employer demes meal clanns when the nature of the Job does not permIt regular or conSIstent meal breaks or meal break locatlons. It says the employer has denIed a substantIve, nght to access Management Board's dIscretIon and that the baSIS of the demal - potentIal semce-WIde Impact and the small number of persons affected -IS not reasonable The UnIon's representatIve submIts that It IS illcredible that the MinIstry would quibble over reasonable meal clanns, and that It IS ill the :Ministry's mterest that workers eat somethIng dunng their \ shIft WIthout worrymg about the mlmmal cost. He says he doubts that people ill Ontano would want the people ill the hehcopter fatIgued because they are not able to avail th~mselves of a meal. The employer argUes t~at ArtIcle 17.25 IS not "about" an exerCIse of mscretIon by Management Board. It SImply IdentIfies a condItIon precedent to entItlement to the cost of a meal. The conmtIon precedent IS the eXIstence of a pohcy or rule made by Management Board. If there IS an apphcable rule or pohcy which authonzes payment ill a partIcular sort of "recurnng sItuatlon", then employees ill that SItuatIon will be paId the cost of a meal. Employer counsel refers to the general observatIons ill Boyd, 105/83 (Roberts) about the structure and language of ArtIcles 17.2 1 through 17.2 5, and to Unwn Gnevance, 112/78 (Jolliffe) and Tratnyek, 1875/87 (Fisher), winch both refer to ArtIcle 17.2 5 He argues that there IS no nght to have Management Board create a new meal cost entltlement, nor to have Management Board consider creatIng a new entItlement. ~ .~ -6- In reply, the uniOn's representatlve noted and rehed upon the reference at page J r 13 of the award In Tr:atnyek to the employer's "dIscretlon under ArtIcle 17.2 5" The phrase appears In thIS sentence In thIS partIcular sItuation the employer, for whatever reason, decIded that the appropriate way of compensatmg e~ployees was to utilize their [sic] dIscretIOn under ArtIcle 172.5 to provIde up to $16,00 for dinner allowances upon prOVISIOn of appropnate receIpts. ~ Decision The gnevors and other all' ambulance officers perform an Important Job, one wluch IS frequently demandIng and stressful. They are an essentIal part of a health care resource for wluch the demand sometImes exceeds the supply There are tImes when the aIr ambulance officers' needs for a tunely, umnterrupted meal break will gIve way to a patient's need for their care That happens often enough to have engendered frustratIon With the way m~al breaks are managed. One of the several causes of that frustratIon IS the refusal of the management of the Emergency Health ServIces Branch to ask Management Board for rehef from the mmtatIons wluch Artlcle 17 2.2 places on payment of the cost of meals The narrow Issue wluch the unIon raIses m the matters before us IS whether that refusal resulted m a breach of ArtIcle 17.2 5 of the partIes' collectIve agreement. Article 55 and the other articles to wluch the umon referred m argument do not merely contemplate the exerCIse of a dIscretIon, they all expressly or rmphedly reqUtre that someone m management make a deCISIon about whether or not an employee will receIve a partIcular benefit. ArtIcle 55, for example, only says that the \ Deputy MinISter or lus deSIgnee may grant an employee a leave-of-absence with pay It IS rmphCIt that an employee may ask for such leave, and that when asked ~o grant such leave, the Deputy MinIster or lus deSIgnee must deCIde whether or not to do so ( ) I, I ~ ~ -7- If those thIngs were not so, there would be httle pomt to the partIes' havmg addressed \ . . 1 the Issue as they dId In thell' collectIve agreement. Although the article does not proVIde the decIsIon-maker With an objectIve test for determmIng the outcome of the decIsIon, It IS also ImphcIt, as the Board has found In numerous cases, that the required deCISIOn may not be madem an arbItrary, dIscnmmatory or bad faIth manner The article 111 questIon here, ArtIcle 17.2 5, also rmphedly reqUIres that someone m management make a deCISIOn. a deCISIon about whether or not a partIcular employee will be paId the cost of a meal. Unhke ArtIcle 55, tins artIcle does prOVIde the deCISIon-maker With an objective test: the deCISIOn must turn on whether or not the Cll'cumstances of the employee m question are the subject of a Management Board rule or pohcy winch has authonzed that such payments be made m Cll'cumstances hke those of the employee in question. Although such a rule or pohcy would be a result of some past deCISIOn, the article's focus IS not on that past deCISIon, It IS on the deCISIon winch apphes whatever rules or pohCIes may be m place when an mdIVIdual employee requests payment of the cost of a meal. The collectIve agreement does not expressly reqUIre that Management Board conSIder expandIng the range of situatIons ill wInch the cost of meals will be paId beyond those winch were covered at the tune the agreement was made. It IS not necessary to rmply an obhgatIon on the part of Management Board to make rule- makIng deciSIons m order for ArtIcle 172 5 to make sense. the artIcle makes perfect ( sense even rl'Management Board neIther makes nor conSIders makIng any new rules or pohcIes on tins subject dunng the term of the collectIve agreement. / We recognIZe that ArtIcle 17.2 5 gIves effect to unilaterally adopted rules or pohcies which, but for the artIcle, It nnght have been rmproper for management to ~ I = ;, .. -8- I rmplement because they alter the scheme of compensatIon contemplated by the collective agreement. We also accept that the ArtIcle would gIve effect to rules or pohcIes adopted after the collectIve agreement came Into effect. Although such a question does not anse here, there may well be rmphcIt hnnts on the rules or pohCles wInch Management Board could properly make m tIns regard, mmts whIch flow from the language of the collectIve agreement and the context m whIch the pohcy or rule- malong deCISIon IS made. Any notIon that su$ rules or pohCles may not be "arbItrary" would have to be assessed WIth cautIon, however, as the facts m thIS case illustrate One element of the problem here IS that employees who are away from 'their "asSIgned headquarters" dunng the meal penod are treated dIfferently dependIng on theIr dIStance from theIr base. It IS not immedIately apparent what specIal SIgnIficance a dIstance of 24 kilometres has, when the rule makes no reference to an employee's ability or freedom to return to "headquarters" during the meal penod to consume lus or her meal. TIns 24 kilometre chstInctIon mIght faIrly be SaId to be an "arbItrary" baSIS for determInIng who should receive the cost of a meal. One of the pOInts Mr Forget sought to make m Ins testImony was that the'meals he brought WIth lnm to work were meals winch had to be heated or othel'Wlse prepared usmg facilitIes available at the I base and could not, therefore, be consumed rfhe was any dIstance away from the base when the opportumty to have a meal arose. It was put to lnm that he could bnnga, meal that reqUIres no further preparatIon (or, presumably, refngeratIon) before consumptIon, and take that meal WIth hIm dunng Ins travels. The same could be SaId ., of any employee whose travel begms and ends dunng a smgle penod of work, regardless of the employee's chstance from headquarters dunng the meal break. It has to be remembered, though, that tins 24 kilometre dIstInctIon IS one on winch the partIes have agreed m more than one round of bargammg Tins lends a certam legItImacy to the makmg of arbItrary dIstInctIons m tins area. Any suggestIon that management cannot make meal rermbursement rules of the sort contemplated by ) \ f~ ~: J -9~ I ArtJ.cle 17.2.5 winch are m any way ":arbItrary" would have to be assessed agamst the 1 background created by the parties' ~greement. '\ In any event, the complamt here iIS not about the propnety of a new rule but about I a deCISIOn by the management of a branch of the MInIstry of Health that they would not ask Management Board to cons:ider whether to make a new rule The necessary preIll1se of that complamt IS that whenever the umon has IdentIfied to Management Board or to some other level of the Employer's management a "recurnng sItuation" m winch such payments would not otherWiSe be made, Article 17.25 nnphedly reqUIres Management Board ~tself to conSIder [Whether It will make a rule authonzmg payment 1 , of the cost of a meal m suchCIrcumst~ces. For the reasons we have IdentIfied, we are I not persuaded that that ImphcatIon anses from the language of Article 17.2 5 Management Board was under no obhgatIon to the Umon to conSIder makIng a new I rule , I It IS not our function to assess t;he W1,SMm of local management's decIsIon not to ask Management Board to conSIder 'adoptIng some new rule whIch would amehorate I the nnpact of the collective agre~ment's 24 kilometer hnntatIon ill the speClal - Gll'cumstances expenenced by all' am~ulance attendants. There IS no basIS for a findIng that that deCISIOn was made ill ''bad faIth", and we are not persuaded that It I constituted a breach of the collectIye agreement. AccordIngly, these gnevances are dIsIll1ssed. I 1 Dated at Toronto tlns4th day of October, 1094 r;y 9'. F Colhct, Member "I Dissent" Dissen Attached ---------- --- T. Browes-Bugden, Kember ) 4 ~ GSB IH159/92, 1647/92, 3254/92 OPSEU (ANDREWS/FORGET) AND THE CROWN RIGHT OF ONTARIO (MINISTRY OF HEALTH) ,-., DISSENT -----------------------------.------------------------------------ I have read the award of the majority, and find I must respectfully dissent The narrow issue in this case is the interpretation of Article 17 2 5 of the Collective Agreement This member beli.eves the article has been interpretated incorrectly by the majority The specific article reads as follows 17 2 1 Cost of meals may be allowed only 17 2 5 If, in any recurring situation, the Management Board has authorized such payments because of the special nature of the assignments There are two criteria in the article that must be satisfied Ther~ seems no question that this is a recurring situation 'filso, the special nature of these positions is not questioned Still with these two conditions satisfied, local management did not present the issue of claims for meals by the grievors to Management Board As such, Management Board was not given the opportunity\ to exercise the provision and not provided the opportunity to address the dispute. J Local management and union representatives discussed the issue of meal claims at ERC meetings in November 1991 and November 1992 It was recognized at the meeting in 1992, that the discretion lay with Management Board for review as is stated, "The Secretariat will be required to make the decision and she cannot speculate on the time frame " However, by the November 1993 ERC meeting, the issue had not been reviewed or considered by Management Board The reason stated was "With common sense and increased latitude of interpretation at the local level the need for the issue to be heard at Arbitration or Management Board of cabinet may be averted Ii There, is no question the authority lay with Management Board and discretion had not been exercised ," h I ~, - Page 2 - I find that it not reasonable or in good faith that this meal claim dispute was not giv~n to Management Board for exercise of its discretion In Kuyntjes, 51 3/8 4 (Verity) it is stated at page 16 However, Arbitrators must ensure that decisions are made within the confines of certain ~inimum standards of administrative justice Those administrative law concepts relating to the proper exercise of discret.1on include the following considerations 1 ) The decision must be made in good fai th I and without discrimination 2 ) It must be a genuine exercise of discretionary power, as opposed to ri~id policy adherence \ 3 ) Consideration must be given to the merits of the individual application under review 4 ) All relevant facts must be considered and I conversely irrelevant consideration must be rejected It is clear from the language of the article that Management Board has the authority to review and decide the dispute Furthermore, Management Board has the obligation to consider the matter and must do so with fairness using the proper exercise of discretion Therefore, I submit the panel has erred in its interpretation of Article 17 2 5 For all the reasons I have stated, I would have allowed the grievances and directed this issue to Management Board for its discretion dt~- . T Browes-Bugden Union Nominee ~ I --