HomeMy WebLinkAbout1998-0284.LaSalle.99-10-06 Decision
o NTARW EMPU) YES DE LA COURONNE
CROW"! EMPLOYEES DE L 'ONTARW
GRIEVANCE COMMISSION DE
.. SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G IZ8 TELEPHONETELEPHONE, (416) 326-1388
180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G IZ8 FACSIMILElTELECOPIE. (416) 326-1396
GSB # 0284/98
OPSEU #98B236
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontano PublIc ServIce Employees Umon
(LaSalle)
Grievor
- and -
The Crown In Right ofOntano
(Royal CIty Ambulance ServIces)
Employer
BEFORE Ken Petryshen Vice Chair
FOR THE Andrew PInto
GRIEVOR Barnster & SolIcItor
FOR THE DavId Damels
EMPLOYER Counsel, Mathews, DInsdale & Clark
Barnsters & SOlICItorS
HEARING Apnl13 1999
2
DECISION
ThIS decIsIOn deals wIth two gnevances filed by Mr Ron LaSalle Both
gnevances were heard as part of the med-arb backlog process In a gnevance dated May
5 1998 Mr LaSalle claims that he was dIscIplIned wIthout Just cause and he requests
that a letter of repnmand dated Apnl 30 1998 be removed from hIS record. The partIes
settled thIS gnevance at the heanng by agreeIng that the letter of repnmand dated Apnl
30 1998 wIll be removed from Mr LaSalle's record as of Apnl13 1999
In a gIevance dated May 5 1998 Mr LaSalle claims that the Employer
contravened the CollectIve Agreement by not paYIng hIm for a call back whIch occurred
on Apnl 15 1998 The Employer takes the posItIOn that It was not reqUIred to pay for a
call back to Mr LaSalle
Mr LaSalle IS employed as a part-tIme ambulance officer He was not scheduled
to work on Apnl 15 1998 WhIle at a mall on that day he was paged by Barry Wood, a
bargaInIng umt employee, and asked to report to work. Mr Wood made the call to Mr
LaSalle because the supervIsor Barry Slade was out of town and unable to call Mr
LaSalle was asked If he would report for work ImmedIately to complete the lI1z hours left
In the day shIft. An employee was unable to complete that ShIft due to Illness, resultIng
In an ambulance beIng understaffed. Mr LaSalle testIfied that Mr Wood told hIm that he
3
would be paid for a call back. Although he could refuse to come In, Mr LaSalle went
home to get hIS umform and he worked the lI1z hours to complete the shIft.
When fillIng out hIS tIme card at the end of the ShIft, Mr LaSalle claimed a call
back. Mr Slade advIsed Mr LaSalle that evemng that he would not work hIS scheduled
hours the folloWIng day In order to provIde for a proper dIstnbutIOn of part-tIme hours
Mr LaSalle was not paid for a call back for hIS attendance at work on Apnl 15 1998
When he asked why he was only paid for the lI1z hours he actually worked, Mr LaSalle
was advIsed that the Employer dId not pay part-tIme employees for call backs
Part-tIme employees are utIlIzed by the Employer to replace full-tIme employees
who are absent and to offset possIble overtIme It IS not uncommon for a part-tIme
employee to be asked to work on eIther the day of the request or the folloWIng day The
eVIdence establIshes that part-tIme employees have never been paid call back pay by the
Employer The CollectIve Agreement provIdes that a call back wIll be paid at 4 hours at
the employee's hourly rate tImes lI1z. The CollectIve Agreement defines a call back as
IncludIng a sItuatIOn where an employee IS "called back" to work whIle off duty
Therefore an employee who IS off duty and reports for work when called should receIve
at least 6 hours pay If entItled to be paid for a call back. The Employer establIshed that
there are numerous Instances In whIch a part-tIme employee worked less than 6 hours and
was only paid for the hours worked. From Mr LaSalle's eVIdence, It IS clear that he and
other bargaInIng umt employees have for many years recogmzed that the Employer wIll
not pay a part-tIme employee call-back pay BargaInIng umt employees and the Umon
4
had not challenged thIS practIce by proceedIng to arbItratIOn untIl thIS case Part-tIme
employees have never been paid on a call back basIs even though there have been
Instances In the past In whIch part-tIme employees have claimed call back pay As well,
there have been Instances, IncludIng one InvolvIng Mr LaSalle, when the Employer's
faIlure to pay for a call back was gneved, but not pursued.
Mr LaSalle testIfied that the facts whIch gave nse to hIS gnevance occurr
Infrequently He dIStIngUIShs the facts In thIS case from other call back sItuatIOns WIth
reference to the notIce he receIved and the short work tIme offered to hIm In thIS
Instance, Mr LaSalle was asked to come In ImmedIately for only lI1z hours of work. In
hIS VIew thIS IS matenally dIfferent from those Instances where he was gIven at least 2
hours notIce and provIded wIth more hours of work.
Schedule D of the CollectIve Agreement contaInS provIsIOns whIch apply to
part-tIme employees ArtIcle 7 of Schedule D provIdes as follows
7) Part-tIme employees when entItled under the assIgned work
schedule wIll receIve payment for meals, stand-by call back, ShIft
premIUm, traInIng, and overtIme on the same basIs as provIded for
full-tIme employees Payment for AL S procedures wIll be as per
letter of understandIng.
The Umon argued that ArtIcle 7 reqUIres the Employer to pay call back pay to
part-tIme employees It also submItted that It was not estopped from claimIng such a
payment In the CIrcumstances of thIS case The Umon dId not argue that Mr Woods'
comment to Mr LaSalle oblIged the Employer to make the payment. Rather It argued
that hIS comment and Mr Slade's Involvement In the matter IncludIng the redIstnbutIOn
5
of hours, support Its posItIOn that the Employer knew that It was reqUIred to pay for a call
back In thIS sItuatIOn.
The Employer argued that part-tIme employees were not entItled to call back pay
under the CollectIve Agreement. It was submItted that the notIOn of call back pay was
InCOnsIstent WIth the way part-tIme employees are utIlIzed SInce It was not uncommon for
a part-tIme employee to be asked to work less than 6 hours on short notIce The
Employer also argued that the Umon was estopped from claimIng call back pay for Mr
LaSalle In thIS Instance havIng regard to the Employer's longstandIng practIce and the
acceptance of that practIce by the employees and the Umon.
The above submIssIOns reveal that the gnevance raises two Issues One IS
whether the CollectIve Agreement oblIges the Employer to pay part-tIme employees for a
call back. The other Issue IS whether the Umon IS estopped from claimIng call back pay
In thIS Instance
ArtIcle 7 of Schedule D provIdes that part-tIme employees wIll receIve payment
for a number of Items, IncludIng a call back, "when entItled under the assIgned work
schedule" ThIS suggests that there are Instances where a part-tIme employee would be
entItled to a payment for a call back. Although there was eVIdence about the way part-
tIme employees are scheduled, there was lIttle focus by the partIes on what was Intended
by the words "entItled under the assIgned work schedule" For thIS reason and because
the gnevance can be decIded on the estoppel submIssIOn, It IS my VIew that the
6
InterpretatIOn Issue IS best left to another case I wIll assume, wIthout decIdIng, that the
CollectIve Agreement reqmres the Employer to pay a part-tIme employee for a call back
In the CIrcumstances whIch gave nse to Mr LaSalle's gnevance
The Employer establIshed that It has a long and establIshed practIce of not paYIng
for a call back. I agree wIth the Employer's submIssIOn that the amount of notIce to
report to work and the number of hours of work offered a part-tIme employee IS
Irrelevant. The CollectIve Agreement does not make any dIstInctIOns on these grounds
A call back as defined by the CollectIve Agreement IS not dependent on how much notIce
a part-tIme employee receIves It IS not appropnate to Isolate only those Instances where
a part-tIme employee was asked to ImmedIately report to work for less than 6 hours of
work and to argue that an estoppel has not been establIshed because such occaSIOns
occurr Infrequently In my VIew It IS necessary to revIew the Employer's entIre practIce
relatIng to call backs
There IS lIttle doubt that there was acqmsence to the Employer's practIce by the
employees and the Umon. The part-tIme employees and the Umon were clearly aware of
the Employer's practIce of not paYIng for call backs TheIr faIlure to pursue gnevances
and claims for call back pay Illustrate that the part-tIme employees and the Umon
acqmesed In the Employer's practIce These CIrcumstances provIde a classIc example of
an estoppel By theIr conduct, the part-tIme employees and the Umon represented to the
Employer that they would not enforce the call back provIsIOn of the CollectIve
Agreement. The Employer relIed on thIS representatIOn to ItS detnment An IndIcatIOn
7
by the Umon that It Intended to rely on Its stnct legal nghts may have caused the
Employer to attempt to change the language In ArtIcle 7 of the CollectIve Agreement.
The Employer may also have attempted to have the work In thIS case performed on some
other basIs rather than call In a part-tIme employee
For the above reasons, I find that the Employer has establIshed that the Umon IS
estopped from advancIng Mr LaSalle's claim for call back pay AccordIngly Mr
LaSalle's gnevance dated May 5 1998 IS dIsmIssed.
Dated at Toronto thIS 6th day of October 1999
"
Ken Petryshen, Vice-Chair