HomeMy WebLinkAboutRedgate/Harris 08-05-12
1
IN THE MATTER OF AN ARBITRATION
BETWEEN:
THE CORPORATION OF THE COUNTY OF SIMCOE
(the "Employer")
-and-
ONTARIO PUBLIC SERVICE EMPLOYEES UNION AND ITS LOCAL 303
(the "Union")
AND IN THE MATTER OF THE GRIEVANCES OF T. REDGATE AND M.
HARRIS OPSEU # 2007-0303-0026 & 2007-0303-0027
Louisa M. Davie Arbitrator
Appearances
For the Union:
Kirsten Agrell, Counsel
For the Employer:
Philip Wolfenden, Counsel
2
Award
In the grievances before me the grievors claim that they were not properly paid premium
rates pursuant to Article 19.01 of the collective agreement between the Corporation of the
County of Simcoe Paramedic Services ("the Employer") and the Ontario Public Service
Employees Union, Local 303 ("the Union"). That Article provides
ARTICLE 19 - CALL-BACK
19.01 Where an employee has completed his/her regularly scheduled tour and
left his/her work station and is called in to work outside his/her regularly
scheduled working hours, or where an employee is called back he/she
shall receive time and one-half (1 Y2) his/her regular straight time hourly
rate for all hours worked prior to being released considering a minimum
guarantee of four (4) hours.
The parties have agreed that I render a decision regarding the interpretation and
application of Article 19.01 to several distinct factual circumstances. Each of the
following circumstances involve employees who are Primary Care Paramedics ("PCP"),
regularly scheduled to work 12 hours shifts, from 7:00 a.m. to 7:00 p.m. or 7:00 p.m. to
7:00 a.m.
The circumstances are as follows:
The PCP is scheduled to work, and does in fact work, the 7:00 p.m. to 7:00 a.m.
shift on Monday ("shift # I"), Tuesday (shift # 2) and Wednesday (shift # 3):
(a) the PCP is asked during shift # 1 if he/she can come in 1 hour
earlier for shift # 3.
(b) the PCP has completed shift # 1, but while still at the station is
asked if he she can come in 1 hour earlier for shift # 3.
'"
3
(c)
the PCP has completed shift # 1, and after leaving the station is
contacted at home and asked if he/she can come in 1 hour earlier for
shift # 3.
(d)
is the answer to circumstances (a), (b) and (c) above different if the
request is made during shift # 2, or while the PCP is still at the station
following shift # 2, or if the PCP is contacted at home after leaving the
station following shift # 2?
The issue is whether the circumstances, each of which involve performance of work
which precedes the PCP's regular shift, and which is contiguous with that shift, attracts
call-in or overtime premium payments.
The Emplover's Submissions
It was the Employer's position that in each of the circumstances cited the employee was
entitled to receive overtime pay for the time worked preceding their scheduled shift. The
Employer relied upon Article 17.02 (a) which states, inter alia
"time and one- half (1.5) shall be paid to all full-time employees for all hours
worked in excess of the normal workday and the normal two (2) week pay
. d "
peno ....
The Employer argued that the Article 19 call-in provisions did not apply here where the
employees agreed in advance to come in early and where they had not suffered the
inconvenience or disruption of having to make two trips because the overtime work was
contiguous with their regularly scheduled shift.
Employer counsel submitted that the language of Article 19.01 clearly indicated that the
call-in premium did not apply. In so doing counsel focused on the words "regularly
4
scheduled tour" arguing that the employees had not completed their regularly scheduled
tour when they were asked, and agreed, to come in one hour earlier for shift # 3. Counsel
. noted that "tour" was only used in Article 19.01 and was not used in any other provision
of the collective agreement. He argued that "tour" was to be distinguished from regularly
scheduled "shift" a term which was commonly used in this collective agreement. "Tour"
was broader, and, in counsel's submissions, referred to the employee's broader "tour of
duty" and encompassed the series of shifts the employee would typically work during
their tour of duty on the schedule i.e. three shifts 1 week, four shifts the next week etc.
As the employees had not completed their regularly scheduled tour, Article 19 did not
apply.
Counsel submitted also that if Article 19 applied, then, in two of the circumstances, the
employees were asked to come in at a time when they had not left the work station. Those
circumstances clearly did not fall within the parameters for receiving this premium
payment as the article requires payment only where the employee has completed his/her
regular shift and has left the station.
It was the Employer's position also that because the additional hour of work was
contiguous with the regularly scheduled working hours it could not be said to be
"outside" the employee's regularly scheduled working hours. Employees were not
"called in" outside their regular hours, but rather "within" the regularly scheduled
working hours. That those circumstances did not attract call-in premium pay was also
evident from the use of the words "prior to being released" in the article. That phrase
5
could have no application where the employee is already required to be at work and
remains at work to complete their shift. That phrase showed the intent of the parties that
the hour of work performed preceding and contiguous with the commencement of the
reguhirly scheduled shift does not attract a call-in payment as employees would not be
released from their regularly scheduled shift. The Employer relied upon Shell Canada
Ltd and Oil, Chemical and Atomic Workers, Local 9-848 6 L.A.C (2d) 422 (O'Shea),'
City of Toronto and Canadian Union of Public Employees, Local 79 12 L.A. C (3d) 232
(P. C. Picher),' Hydro-Electric Commission of Town of Mississauga and International
Brotherhood of Electrical Workers, Local 636 8 L.A.C. (2d) 158 (Ferguson); Imperial
Oil Strathcona Refinery and CE.P., Local 777 130 L.A.C (4''') 239 (Elliott); County of
Kent and Ontario Public Service Employees' Union 8 L.A. C. (3d) 188 (Swinton).
The Union's Submissions
The Union asserted that each of the circumstances fell within the express language of
Article 19.01. The employees had completed their regularly scheduled shift and were
called in to work 1 hour outside their regularly scheduled working hours for shift # 3.
The fact that the hour of work was contiguous with their regularly scheduled hours of
work was irrelevant. The Union submitted that, regardless of the fact that the work ran
into the employee's regularly scheduled shift, Article 19.01 applied as employees had
completed their regularly scheduled shift (shift # 1 or shift #2), had left work, and were
called in to work outside their scheduled working hours.
6
Union counsel referred to Article 17.05 and argued that in the case of this collective
agreement the parties had turned their minds to the circumstances where an employee
might start work before their regularly scheduled shift. Article 17.05 states
17.05 An employee who responds to an emergency call, that is a code 3 or code
4 (or, with supervisor's approval, a code 8) prior to the commencement of
hislher scheduled shift because he/she is already at the workplace and
ready to work, shall be entitled to thirty (30) minutes pay at time and one-
half (1.5). The maximum entitlement shall be thirty (30) minutes. When
responding to such a call, the employee deemed to be relieved shall suffer
no loss of pay as a result of being relieved.
It was the Union's contention that the parties had specifically carved out from the
otherwise applicable call-in circumstance a smaller premium rate for those circumstances
where the employee commenced work earlier because they were already at work and
ready to work. Having turned their minds to the matter it was evident from the language
of the collective agreement that the parties intended that employees called in to work
early and outside their regularly scheduled shift would receive the Article 19.01 premium
payment regardless of whether the work was contiguous with their regularly scheduled
shift.
It was the Union's position that the "two trip" theory expressed in some of the cases was
not applicable in the circumstances of this case where the collective agreement language
was clear. Union counsel submitted that recourse to a presumed intent for the call-in
premium payment was not necessary as a focus on the language of the collective
agreement clearly evidenced the intent of the parties to apply the call-in premium to the
circumstances cited. In her submissions Union counsel relied upon Camp Hill Medical
7
Centre and NSN U 40 L.A.C (lh) 381 (Rigg); Memorial University of Newfoundland
and NA.P.E. Local 7801 38 CL.A.S219 (Montgomery); Domtar Fine Papers and CP. U
Local 33817 CL.A.S 75 (Thorne),' Toronto Police Services Board and Toronto Police
Association 96 L.A.C (l') 431 (Marcotte); High Prairie Regional Health Complex and
Health Care Employees Union of Alberta 32 CL.A.S 464 (Corbett);North Central
Plywoods and Pulp and Paper Workers of Canada, Local 25 21 CL.A.S 34 (Williams)
Decision
The arbitral jurisprudence to which both parties referred indicates that this issue is not
without debate. The cases to which I was referred indicate that whether or not a call-in
premium is to be paid where the work precedes a regularly scheduled shift and is
contiguous to that shift is a matter which depends on the collective agreement language
and the approach of the arbitrators interpreting that language.
Some of the cases have adopted a purposive approach, focusing on the rationale
underlying the call-in provision. These have generally concluded that, in the absence of
some personal inconvenience, call-in work which is contiguous with the employee's
regularly scheduled shift is not subject to the call-in premium payment but should be paid
at regular overtime rates. These cases, often referred to as "two-trip" cases, have
concluded that because the employee does not incur the extra expense of having to make
an extra trip to and from work, extra compensation beyond that normally paid for extra
work (i.e. overtime premium payment) is not warranted.
8
Many of the cases which adopt a purposive approach, including the cases which
Employer counsel cited, refer to, but tend not to address, another rationale for the call-in
provision, namely to compensate for the general inconvenience, not just additional
expense, of having to corne in to work early, or at a time when the employee is not
normally scheduled to commence their regular shift. Although the purposive approach
awards may refer to the "social dislocation" or "disruption" to the employee, that factor is
not often linked to the advance notice, or lack of advance notice, which employees
receive when required to work extra hours preceding their regularly scheduled shift. In
my view the issue of notice is highlighted by the several different fact circumstances
which the parties have placed before me.
The other approach adopted in the awards to which I have been referred may be
described as a more "literal" approach. That approach adopts the notion that call-in
premium payment is separate compensation for the general inconvenience suffered by
employees called in to work at a time other than their regular shift, or a minimum
payment for the social disruption presumed or inherent in early attendance. That
approach looks more to the language of the collective agreement and the specific words
chosen by the parties to express their intention to determine if the call-in premium is to be
paid. These awards tend to reject the applicability of the "two-trip" test, and place less
emphasis on any actual disruption or any additional expense to the employee.
I've found the cases to which counsel referred to be of limited assistance in deciding this
matter. Each award is based on the unique fact situation underlying the grievance and the
specific words of the collective agreement before the arbitrator. In their statement of
9
general principles the awards provided some guidance, but, in my view, the purposive
and literal approach enunciated in the awards need not be mutually exclusive. That is to
say, one can interpret the language of the collective agreement, and the specific words
chosen by the parties to express their intent, having regard to the by now well established
and accepted purposes for call-in premium payment.
In terms of interpreting the collective agreement and discerning the intent of the parties
from the language they have used, the words must be given their plain and ordinary
meaning, and read in context of the entire collective agreement.
In terms of the purpose or rationale for call-in premium payment I find that there are
three purposes for call-in premium provisions; (1) to compensate the employee for the
additional expense of an extra trip; (2) to compensate the employee for insufficient notice
and the disruption and inconvenience which may arise or is presumed to arise from
insufficient notice; (3) to discourage the Employer from lightly exercising the right to
require or request employees to work at a time they are otherwise not normally scheduled
to work.
In this instance there are several elements set out in article 19 of the collective agreement
in order for the call-in premium to apply.
First, the employee must have completed his/her scheduled tour.
10
I do not accept employer counsel's submissions that "tour" must be given a broad
meaning, more akin to a schedule of work, and includes the series of shifts which the
employee may work from week to week. The term "tour" is not defined in the collective
agreement. However, to accept Employer counsel's definition means that the call-in
premium can apply only when the employee has completed all assigned days of work, in
some undefined period oftime (which the employer would call a "tour"), and can never
apply to work which is contiguous to an employee's shift. Iftour is given the broad
meaning advocated by employer counsel the Employer could, theoretically, call the
employee in for 1 hour of work to be done 3 hours before an employee's scheduled shift,
send the employee home upon completion of that work, expect the employee to report for
the regularly scheduled shift 2 hours later, yet not have to pay a call-in premium because
he/she has not finished his/her "tour" of duty. Practically speaking that interpretation
means call-in premium would apply only in extreme circumstances and effectively robs
the provision of application. In my view "regularly scheduled tour" refers to the
completion of the employee's scheduled assignments for the work day.
In the circumstances before me, where the employee is asked during shift # 1 or shift # 2
if he/she can come in 1 hour earlier for shift #3, a literal interpretation of the language
indicates that the call-in premium does not apply. The employee has not completed
his/her regularly scheduled tour at the time of the call-in. A purposive interpretation of
the language of the collective agreement does not suggest or support deviation from that
result. Employees who are asked during shift # 1 or shift # 2 to come in 1 hour earlier for
shift # 3, and who agree to do so, do not suffer the additional expense of an added trip as
11
the work is contiguous to their scheduled shift #3. To the extent there may be other
additional expenses incurred those are addressed with the payment of the additional
overtime premium for the time worked preceding the scheduled shift. With the notice
provided (more than 24 hours) the employees also do not suffer disruption or
inconvenience as they can plan ahead for the fact that they have agreed to come in 1 hour
earlier for shift # 3.
The second element set out in Article 19 is that the employee must have left his/her work
station.
Each counsel has attributed different meaning to the words "work station. " Employer
counsel suggests that those words refer to the physical premises from which the PCP
carries out his/her work. Union counsel suggests that "left his/her work station" refers to
the readiness to carry out assignments. Thus an employee who has completed his/her
shift has effectively left his/her work station because, notwithstanding physical presence
at the work site or location (i.e. the locker room, lunchroom or parking lot) the employee
is no longer ready or obliged to carry out assignments.
I have determined that "work station" does not simply refer to the physical premises or
station from which the employee works. Even though the PCP may work at "stations"
from which the ambulances are dispatched throughout Simcoe County, if the parties had
intended "work station" to have that meaning it is unlikely that they would have used the
word "work" before the word "station." The word "station" itself is not capitalized.
12
Finally, if "work station" was intended to refer only to the physical premises at which the
PCP works, it would have been much simpler for the parties to simply use the word
premises (i.e. "... and left the premises..."). I therefore find that "work station" as used in
article 19 refers not only to the physical premises or location from which the employee
carries out his/her duties, but encompasses also the notion of an employee's physical
presence and readiness to work at the premises. Employees who have completed their
scheduled assignments and who have been released and relieved of further assignments
have "left their work station" even though they may physically remain at the premises.
Therefore, a literal approach suggests that in the circumstances placed before me, where
the employee has completed shift # 1 or shift # 2, and is asked while still at the station to
come in 1 hour earlier for shift # 3, and agrees to do so, that employee may be entitled to
the call-in premium.
A purposive approach however would suggest that the underlying purposes for the call-in
premium are not affected were an employee is asked, immediately following completion
of the shift, but before leaving the Employer's premises, to come in one hour earlier for
shift #3. The employee does not incur the additional expense of an extra trip and, again,
having received sufficient advance notice, may suffer little disruption .or social
inconvenience because, before leaving the Employer's premises, the employee can plan
for the additional hour of work which will be contiguous with his/her work on shift # 3.
13
Differentiating between employees who remain on premises but who have completed
their scheduled shifts and employees who are asked during the shift also leads to some
anomalous results. An employee asked five minutes prior to the completion of his/her
shift is asked during their shift and will always receive only the overtime premium. An
employee who physically remains on the Employer's premises but who happens to be
asked to come in an hour earlier for shift #3, perhaps a mere 5 minutes after completion
of his /her regularly scheduled shift (either #1 or #2), may be entitled to call-in pay. In
neither circumstance can it be said that the purpose for the call-in premium has been
engaged --- the employee does not incur the extra expense underlying the two-trip theory,
and the time difference between the employee asked 5 minutes before the completion of
the shift and the employee asked 5 minutes after the shift has ended while he/she is still
on the premises does not affect in any meaningful fashion the social inconvenience to the
employee because the advance notice received is essentially the same. It is unsatisfactory
to simply say that anomalies often occur when an arbitrary line based on a time factor is
drawn, and, to the extent possible, anomalies should be minimized, having regard to the
purpose and rationale underlying the provision.
This leads me to the last element set out in article 19 in order for the call-in premium to
apply. That is the employee must be "called in to work outside his/her regularly
scheduled working hours." In my view the number of anomalies may be minimized if
one looks to the ordinary meaning of the words "called in" and "scheduled working
hours" .
14
Use ofthe words "called in" suggests that something has happened which necessitates the
employee to be called-in to work at a time he/she would not otherwise expect to be at
work. On this basis, an employee who is asked to come in one hour earlier for shift # 3
during his/her shift # 1 or shift # 2 , or who is asked while he/she is still at the premises
immediately following his/her shift # 1 or shift # 2, who agrees to come in early for shift
#3, can't be said to be "called in". Having agreed to come in one hour earlier the
employee expects to be at work one hour earlier for shift # 3.
"Called in" also connotes something which is not subject to scheduling or a scheduling
process. That notion is reinforced by reference to "outside hislher regularly scheduled
working hours." The word "scheduled" suggests something which is prearranged, pre-
determined or known and established in advance. In my view advance notification is
implicit in the word "scheduled."
An employee who is asked to come in one hour earlier for shift # 3 during hislher shift
# 1 or shift # 2, or who is asked while he/she is still at the premises immediately
following his/her shift # 1 or shift # 2, has been informed in advance of his/her starting
time for hislher shift #3. He/she knows when the work is to be done and knows his/her
regularly scheduled working hours for shift # 3. Having had advance notice of the
planned, scheduled start, the employee need not be "called in", but attends at work, as
scheduled, on what is a "prearranged" overtime basis.
.
15
For all of these reasons I have concluded that with respect to the several different
circumstances placed before me, the call-in premium applies only where the employee is
asked to come in one hour earlier for shift # 3 after the employee has left the employer's
premises following the completion of hislher shift # 2. In the other circumstances the
employee is entitled to be paid overtime for the work performed preceding shift # 3
provided that the work is contiguous with shift # 3 (the Employer could not, for example,
have the employee work on an overtime basis if there is an interval of time between the
completion of the overtime and the start of the shift.)
Both the language of the collective agreement, particularly the words "called in" and
"scheduled working hours" and a purposive approach to the provisions support this result.
Where the employee is notified before leaving the employer's premises following shift
# 2 of work which becomes contiguous with the employee's shift # 3 the employee is not
entitled to extra compensation, beyond overtime premium pay~ent, because he/she does
not have to make an additional trip and he/she has received sufficient advance notice.
Requiring the Employer to notify the employee before the employee leaves and goes
home, also encourages the Employer to plan ahead and discourages the Employer from
calling employees with insufficient notice thereby causing personal disruption. As noted
in Camp Hill Medical Center supra at page 388
If the call-back provision may apply either when an employee is notified at work
of the need to make an extra trip or when the employee is called at home for work
which becomes contiguous with the employee's regular shift, does this mean that
the provision always applies? The answer will depend on the language of the
provision, of course, but the purposive interpretation suggests that at least one of
the two purposes, compensation for insufficient notice or compensation for an
extra trip, must exist before the call-back provision will be found to apply. So, if
.
16
an employee is given sufficient notice that she will be required to come to work
sometime after one of her regular shifts but before the commencement of the next
shift and that work becomes contiguous with her next shift, she would not be
entitled to the extra compensation provided by the call-back provision. This is
fair, because the employee will not incur the expense of an extra trip nor the
disruption of short notice: the employee will have had sufjicient time to make
arrangements to lessen the disruption caused by the requirement to work at a time
other than her usual shift and to minimize the expense of transportation at an
irregular time. Compensation for those lower expenses and that lesser disruption
is one of the purposes of regular overtime pay.
If the purpose of call-back pay is to compensate for the disruption and expense
caused by calling an employee to work without sufficient notice, one may inquire
what sort of notice might be sufficient notice to avoid the application of [call-in
premium payment]... That issue was not raised by the parties, probably because it
was clear that the grievor was called back to work on very short notice (called at
2110 to report immediately and reported at 2150, a space of only 40 minutes). It
would, therefore, be presumptuous of me to attempt to answer that question in the
absence of a real situation and of argument by the parties. I do, however, note that
some guidance might be taken from other cases, such as the suggestion by
Professor MacIntyre in Campbell River, above, that if the instruction to report had
been given to the employee the previous day, the call-back provision would not
have applied.
(emphasis added)
Similarly, I have concluded that sufficient notice is given if it is given before the
employee has left the Employer's premises following the completion of shift # 2. If it is
given after the employee has left the premises following completion of shift # 2 the call-
in premium payment must be paid. In the other circumstances placed before me, the
Employer is obliged to pay overtime.
Dated at Mississauga at this 1 2th day of May, 2008.
,.//