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HomeMy WebLinkAbout2017-0204.Jackson.17-12-19 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB# 2017-0204 UNION# 2017-0467-0012 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Jackson) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Felicity Briggs Arbitrator FOR THE UNION John Wardell Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Greg Gledhill Treasury Board Secretariat Legal Services Branch Employee Relations Advisor HEARINGS June 8 and November 17, 2017 - 2 - Decision [1] Michael Jackson is a Correctional Officer at the Quinte Detention Centre. On April 7, 2017 he filed a grievance that said: On March 4/17 I worked my regular shift 0630-1830 hrs. at the Quinte Detention Centre. I was called back to work for an emergency search at the institution. I worked 2130 to 0001 hrs. and was paid 2.5 overtime hours at time and a half. [2] By way of remedy he requested to be compensated “as per COR9-call back”. [3] This grievance was heard at the Provincial Overtime Table where all CO grievances regarding allegations of improper overtime pay are heard. Accordingly, in accordance with the practice this decision is without precedent or prejudice. [4] There is no dispute on the facts. As set out in his grievance, Mr. Jackson worked his full twelve hour shift on March 4, 2017. He then returned home. [5] Prior to March 4, 2017 Mr. Jackson had indicated – on the HPRO system - his availability to work a part shift of overtime during the evening of March 4th. [6] As the result of a snow storm and staff having difficulty getting to the workplace, there was a need for Correctional Officers who had not been previously scheduled. The grievor had left the workplace. The Employer phoned the grievor a number of times and messages were left. Eventually the grievor got the messages, phoned into Q.C.C. and was asked if he would come in to work. He responded in the affirmative and did work from 2130 until midnight. [7] In addition to calling the grievor, the Employer contacted at least one other CO who had not signed up for overtime availability on HPRO. That CO was asked to come to work and he agreed. According to the Union, he was not ordered to do so. The Employer did not dispute this assertion. That CO received the four-hour minimum payment for being called back into work. It is the grievor’s view that he should have received the same compensation as this other CO. [8] The Union contended that call back applies to instances when an employee has left the workplace and is asked to return to work before the commencement of his/her next shift. COR 9.1 of the Collective Agreement states: - 3 - An employee who leaves his or her place of work and is subsequently called back to work prior to the starting time of his or her next scheduled shift shall be paid a minimum of four (4) hours’ pay at one and a half (1½) times his or her basic hourly rate. [9] The Union urged that there is nothing in the Provincial Overtime Protocol (“POP”) that limits or restricts that provision. In the absence of clear language in this document taking away the right to call back, COR 9.1 applies and the grievance should be upheld. [10] The Union directed the Board’s attention to the most recent Questions and Answer document that was jointly produced by the parties in June of 2009. At question four it is stated, in part: In an emergency/crisis situation, when staff response time to attend the institution or the site of the emergency is a priority, crisis management plans would take precedence, as they have in the past (i.e. calling in staff who live closest to the institution in an emergency). It was contended that the parties put their minds to instances when the protocol would be bypassed and people would be called back to work. That is what occurred in this instance and the grievor should receive call back pay as set out at COR 9.1. [11] The Union relied upon Re Labatt Breweries Ontario (London) & Brewery, General and Professional Workers’ Union, Local #1, 2006 CanLii 1319 (ON LA), (Shime). In that decision Arbitrator Shime considers the purpose of both call back and overtime. On page 5 he states: Much may be gleaned from the ordinary nomenclature when it comes to distinguish call-in/call-back from overtime. Call-in/call-back occurs when an employee has left the workplace, but is required to return to the workplace for some specific reason. Thus the employer may require the employee to return because a particular work situation has arisen such as an emergency or an unexpected work event. Many of the earlier cases referred to an emergency situation, but it now appears, subject to the Collective Agreement, most circumstances which require an employee to return to the workplace fall within the concept of call-in/call-back. ….. Overtime, as is apparent from the nomenclature and from the decided cases, is a period of time that spills over from or extends an employee’s regular work period. That time, as it now appears, may occur at the commencement or at the end of an employee’s regular work schedule. - 4 - [12] Anticipating the Employer’s argument, the Union noted that Arbitrator Shime did not agree that in order to be eligible for call back pay an employee must be ordered into work. It was noted at page 6: …..Where it is done voluntarily or on consent it nonetheless may constitute a call-in/call-back because initially it is the employer that requires the work to be done and requests the employee to return to the workplace; the mere acquiescence or consent by the employee or voluntary return does not negate the concept of call-in/call-back, because it is the employer that requires the work to be done and requests the employee to return to the workplace at a time that is disruptive to the employee’s personal time. [13] It was the Employer’s submission that what is of import for this Board to consider is that overtime is voluntary unless the employee is explicitly ordered to return to work. That mandatory work would be a call back situation. [14] The Employer relied upon Re The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) and OPSEU (Schmidt) GSB#2011-2744 (Briggs); and Re Sun Country Regional Health Authority and CUPE Local 5999 2012 CanLii 64121 (SK LA), (Pelton). In this decision the Chair found, at para 44: The key distinction between Overtime pursuant to Article 27.10 and a Call Back pursuant to Article 27.21 is that the latter is a mandatory assignment of work which the employee will be obligated to respond to. Overtime, on the other had (sic), is voluntary in that Article 27.10 (b) provides that no employee is required to work Overtime against his or her wishes when other qualified employees within the work unit are willing to perform the required work. All Call Backs pursuant to Article 27.21 involve a return to work, however, all returns to work are not necessarily a Call Back. As noted, Overtime does not have to be contiguous with an employee’s regular shift. Situations can arise where an employee, who has completed his shift and left the Employer’s premises, is offered Overtime. If the employee accepts the offer and returns to work it is to perform Overtime pursuant to Article 27.10 and is not a Call Back pursuant to Article 27.21. DECISION [15] As noted by Arbitrator Shime in Re Labatt’s (supra), “it is trite to say that the decided cases turn on both a reading of the individual collective agreements and also on the specific fact situations.” In the matter before this Board, there is an - 5 - additional factor to take into account and that is the Provincial Overtime Protocol. It is a significant document and sets this case apart from those outside this workplace. [16] As noted during the submissions, more than a decade ago these parties negotiated a complex overtime protocol and had a sophisticated computerized program developed to ensure the complicated protocol would be followed. Overtime is voluntary. A Correctional Officer makes it known by inputting into the computer program which shifts or part shifts he is available for overtime. It is agreed in the protocol that even though a CO signed up for a particular overtime shift there is still the right to refuse. However, in the event of a refusal a penalty is imposed in terms of entitlement to future overtime. [17] In the case at hand the grievor had signed up for overtime work – a part shift – for the evening of March 4, 2017. When “the decision was made to hire overtime” – as set out in the protocol – the grievor was called and offered the work for which he had indicated he was available. After he received the messages that were left for him he called into Q.C.C. and because the work was still needed he was offered and accepted the work. [18] What took place involving the grievor on March 4, 2017 was entirely in compliance with the overtime protocol between these parties. What has complicated this matter is the fact that another CO – who had not indicated his availability on HPRO - was contacted and asked to work. He agreed and was paid call back. The Union was of the view that this differential compensation is a violation of the Collective Agreement. [19] I must disagree. The parties extended their Collective Agreement provisions regarding overtime in the POP. There are steps that must be followed which ensure that the Employer does not simply give overtime to certain employees for irrelevant reasons such as of proximity to the workplace or friendship. If an employee is skipped over in direct contravention of the protocol there is a penalty to be paid. As set out in an earlier decision of this Board – generally speaking - if a Correctional Officer should have been offered an overtime shift in accordance with the protocol and the work was given to someone else, the CO is entitled to compensation. [20] The Employer contended that it is the mandatory nature of call-back that should determine this matter. However, the evidence is not clear that the other CO was – in fact – ordered to attend at work. In any event, I do not find that it is the - 6 - mandatory nature of call back – assuming there is one – that is determinative in this case. It is the provisions of the POP. [21] The Union noted that there is a significant compensatory differential between Mr. Jackson and the other CO who was called in to work. I agree. But that is because Mr. Jackson had already indicated his willingness to work overtime during that exact period of time. He had indicated that he was available to work and although he could have ultimately refused, there was, at the very least, an initial intention to work overtime during the evening of March 4, 2017, if asked. The other CO had no intention of working – and had not noted a desire to work during that time. He did in fact attend but he had no advance intention of working that evening. [22] The Union relied upon the wording of COR9.1 which states: An employee who leaves his or her place of work and is subsequently called back to work prior to the starting time of his or her next scheduled shift shall be paid a minimum of four (4) hours’ pay at one and a half (1½) times his or her basic hourly rate. [23] While I understand that assertion, the wording and scheme of the Provincial Overtime Protocol makes clear that the grievor was not called back to work in accordance with Article COR9.1. [24] In the facts presented to this Board, the grievor indicated an intention to work overtime for part of a shift during the evening of March 4, 2017. Such time was offered and accepted. In my view, he was paid in accordance with the Collective Agreement and Provincial Overtime Protocol. [25] The Union also relied upon the understanding set out in a jointly issued Q & A document that contemplates that there will be instances when the protocol will be bypassed. It was urged that this was the case on March 4, 2017 and therefore the grievor was called back to work and not merely offered overtime. Again, I must disagree. The evidence before this Board reveals that the protocol was followed. The grievor had signed up for availability to work a part-shift on the evening of March 4, 2017 and he was called a number of times with offers of work with messages being left to the end. [26] Neither the Employer nor the Union asserted that a crisis management plan – as set out in the Q & A – was in effect on March 4, 2017. Therefore, there was a significant difference between the grievor and the other CO that was called back to work. The grievor was entitled to be offered the work but the other CO was not. Had the Employer failed to follow the protocol that evening and given the - 7 - work to randomly chosen COs, the grievor would have been entitled to claim a remedy while the other CO would have no such claim. [27] For those reasons, the grievance is denied. Dated at Toronto, Ontario this 19th day of December 2017. “Felicity Briggs” Felicity Briggs, Arbitrator