HomeMy WebLinkAboutFeaver et al 09-03-20
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IN THE MATTER OF AN ARBITRATION
BETWEEN
MUSKOKA ALGONQUIN HEALTH CARE - PARAMED
(The "Employer")
AND
ONT ARlO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 380
(The "Union")
GRIEVANCES OF MCKENZIE, FOURNIER AND FEA VER AND
UNION/POLICY GRIEVANCE
APPEARANCES FOR THE EMPLOYER
Caroline Kay, Counsel
Robert Hughes, Manager of Human Resources
APPEARANCES FOR THE UNION
Boris Bohuslawslc.y, Counsel
Ba,'b Barry, Local President
Lynn Feaver, Grievol'
DATE OF HEARING
March 10, 2009
DATE OF AWARD
March 20, 2009
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There are four grievances before me; three individual and one union/policy. The policy
grievance alleges that the Employer has breached Article 17.02 (CaU~Back) of the
Collective Agreement. The individual grievances are identicallmd claim a violation of
the same provision and, in addition, Article 3 (Discrimination and Harassment).
The relevant provisions of the Collective Agreement read as follows:
Article 3 - NO DISCRIMINATION AND HARASSMENT
3.01 The Hospital and the Union agree that there will be no discrimination,
interference, intimidation, restriction or coercion exercised or practiced by
any of their representatives with respect to any employee because of his
membership or non-membership in the Union or activity or lack of activity
on behalf of the Union or by reason of exercising his rights under the
Collective Agreement.
3.02 It is agreed that there will be no discrimination or harassment by either
party or by any of the employees covered by this Agreement on the basis
of race, ancestry, place of origin, creed, colour, ethnic origin, citizenship,
sex, sexual orientation, marital status, age, record of ofIences, same-sex
partnerships status, family status or disability or any other factor which is
not pertinent to the employment relationship.
3.03 Every employee who is covered by this agreement has a right to freedom
from harassment in the workplace in accordance with the Ontario Human
Rights Code.
3.04 The Hospital and the Union recognize their joint duty to accommodate
employees in accordance with the provisions of the Ontario Human Rights
Code.
17.02 Call Back
An employee who is called back to work aiter leaving the Hospital
premises and outside of his regular scheduled hours shall be paid a
minimum of no less than four (4) hours pay at time and one half (l Y2) his
regular straight time rate for work performed on each call-in. In the event
that such four (4) hour period overlaps and extends into his regular shift,
he will receive the four (4) hour guarantee payment of time and one half (1
Y2) and his regular hourly rate for the remaining hours of his regular shift.
The reference to leaving the Hospital premises refened to above will not
be applicable where an employee remains in the Hospital on Standby
arrangement with the Hospital.
NOTE:
Applicable to part-time employees on~
For purposes of clarification, Article 17.02 does not apply
to prescheduled hours of work. Aliicle 17.02 does not
apply where the employee elects to work additional
unscheduled hours made available by the Hospital.
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NOTE:
Any other provision(s) related to Call Back that existed in
the expiring collective agreement will be continued and
numbered in sequence as provisions of this article.
Muskoka Algonquin Healthcare is a multi-site provider of health care services in the
northern region of tho province, its two major sites being in Huntsville and Bracebridge.
These grievances originate f1'om the Bracebridge site and arise from the fact there are
different methods of payment for eall~ins in Bracebridge and Huntsville. The pmiies are
seeking an interpretation of the collective agreement provisions to resolve the conf1iet
that has arisen from these two practices.
Ms. LYlUl Feaver is one of the grievors and she explained how the Hospital in
Bracebridge has been applying the call back provisions since 2006. She is now a Charge
Technologist and gets called in on a fairly regular basis whenever she is on call. If she
is called back to the Hospital after her regular shift, completes her call back work bef()re
the start of her regular shift and leaves the hospital, she is paid time and one-half (1 Y2) of
her regular rate for the guaranteed call back of 4 hours, irrespective of how long she was
at the Hospital. When she begins her regular shift later that morning, she is paid her
regular straight time hourly rate for all hours worked, that is 7 Y2 hours. For example, if
her regular shift started at 7:30 am and she was called in to work at 3:00 am for one hour,
she would be paid 1 Y2 times her regular rate for 4 hours and, when she returned to start
her regular shift at 7:30, she would be paid 7 Y2 hours at her regular rate. If, however, she
was called in at 6:00 am, whether she left the hospital or not after the call back, and
began her regular shift at 7:30 am, she would be paid at the rate of 1 Y2 times her regular
rate for four hours, as set out in Article 17:02 and would be paid her straight time rate for
the remaining hours of her shift, that is from 10:00 am to 3:30 pm. Ms. Feaver also
testified that the hours paid pursuant to the guaranteed minimum call~back are registered
on the pay cheques as ULPE or unpaid leave pensionable earnings
Mr. Bohuslawsky, counsel for the Union, took the position that she should have been
paid the minimum four hour guarantee for each call back in addition to the 7 Y2 hours of
her regular shift if she had completed her call-back duties and left the Hospital. It did not
4
take issue with the Hospital's practice of paying time and onewhalf t()t' four hours and
straight time for the hours remaining before the statt of the shift where the employee's
hours of the callwin run into her regular shift without an oPPoltunity to leave the premises.
It does allege that the method of payment in the former example is contrary to the
provisions of article 17.02.
It refclTed to the case of Re Grey Bruce Regional Health Centre and OPSEU (Po!ie-:y)
(August 31, 1988) unreported (Shime) for the proposition that call back pay is not
intended to compensate an employee for the work actually done but rather for the
inconvenience of returning to the Hospital outside of her regular hours. The collective
agreement in that case was very similar to the one before me but there is a significant
distinction that is relevant to the issue before me. That provision reads as follows:
20.0 I An employee who is called back to work after leaving the Hospital
premises and outside of her regular scheduled hours shall be paid a
minimum of no less than two (2) hours pay at time and one half (1 ~) her
regular straight time hourly rate for work performed on each such call-in
except to the extent that such two (2) hour period overlaps and extends
into her regular shift, in which case she will receive only time and onewhalf
(l ~) for the hours actually worked prior to ~he commencement of her
regular shift. The reference to leaving the Hospital premises referred to
above will not be applicable where an employee remains in the Hospital
on standby arrangement with the Hospital.
The Hospital in that case had instituted a new policy that required an employee who had
been called back to work to remain available for the period of the two hour guarantee to
avoid the expense of an additional call back during that same period of time. The Union
objected and took the position that once the work of the call back was completed, the
employee should be allowed to go home and, if called back again, he paid the same
minimum guarantee ofhour8. In that case the Board stated, at page 3, as follows;
When calIwback occurs, it generally attracts a premium payment because
the employee is required to leave home and retUl1l to work usually at some
disruption to his or her personal life: thus, the employee is guaranteed a
premium payment because of the personal disruption. Also, the premium
payment is intended as a penalty to discourage employers from calling
employees at irregular times.
5
It was the Union's position that a textual analysis ofalticle 17.02 in the instant case
makes it clear that the parties intended the four hour minimum guarantee to apply after
someone has left the premises, no matter how many hours have elapsed sillce the last
call~in or how many hours remain before the start of her next regular shift:. It must also
be assumed that the parties intended for all employees to be tl'cated equally in applying
this and any other provisions of the collective agreement. Tfthe Hospital's interpretation
were accepted, an employee who was called in more than four hours before her shift and
went home after the call-in would be entitled to more pay than an employee who was
called in with less than four hours before her regular scheduled shift and who went home
after the call-in. The latter would be paid a lesser amount because she would only be
eligible for the first guarantee of hours. If the payment is to be considered a premium t()r
the inconvenience of returning to the Hospital, the inconvenience to both in this example
is identical. If one employee comes back to work at 3:00 am and goes home at 4:00 am,
she is just as inconvenienced as an employee who returned to the Hospital at 6:00am,
went home at 6;30 and returned at 7:30 for her regular shift. The Board should reject any
interpretation that would have such an unfair result.
Mr. Bohuslawsky also assclted that the Union's interpretation is a proper construction of
article 17.02. If an employee comes in for a caIl-bacJ( and leaves the Hospital after the
call back, there is no remainder of a shift to consider. Once the call-in ends, the
guarantee minimum applies, irrespective of whether there is any overlap with regular
hours. That reference to regular hours can only apply when the work of a call-in runs
into the hours of a regular shift. Only when the work of the call~in is contiguous to the
hours of the regular shift does the rationale of payment for inconvenience give way to the
payment of overtime before or after a regular shift.
It was also said that if the Hospital's interpretation were accepted by this Board, there
would be no guarantee of hours if an employee who is called in, completes the work of
the call-in and leaves the premises is denied payment for the inconvenience of retuming
to the Hospital outside of her regular hours.
6
In support of its position the Union relied on the following cases: Re Shell Canada Ltd.
And Oil, Chemical and Atomic Workers. Local 9-848. (1974), 6 L.A.C. (2d) 422
(O'Shea); Re Grey Bruce Regional Health Centre and OPSEU, (Paramedical Group)
(1995), 39 C.LA.S. 7] (Brent, Filion and Bowes-Budgen) and Northeast Mental Health
Centre and OPSEU (Call Back Pay grievance). [2004] O.L.L.A. No. 673 (K. Whitaker) .
Ms. Kay, counsel for the Hospital, noted that although this provision has been the subject
of previous grievances, there has not been a decision on the interpretation to be given in
the circumstances set out above. The Hospital does not dispute the Union's submissions
respecting the purpose of a guaranteed minimum call-back. It also agrees that there could
be more that one call back and minimum payment during a regular 7 Yz hours shift. The
cases relied on by the Union, however, do not assist me in determining the issue raised in
the instant case. That requires an interpretation of article 17.02.
The Union has provided the Board with the OPSEU and Participating Hospital award
fi'cnTI the Beck Board in 2005 in which the two hour minimum was changed to a four hour
minimum guarantee of hours. But the central hospital language is not as generous as that
before the Board in the instant grievance. In the central language, the employee called in
under aliicle 17.02 would only be paid time and one-half from the time she arrived at the
hospital until her regular shift began at which time she would be paid at her regular
hourly rate for the hours of her regular shift:. Here the parties have agreed that the
employee would receive time and one-half for all four hours of the minimum call back
inespective of how many of those hours continued into her regular shift. In effect, the
Union is seeking triple and a halftime for those hours.
The Union, it was submitted, is asking the Board to read into the collective agreement a
requirement that only if the call back hours are contiguous with the regular hours, is the
employee disentitled from receiving the 4 hours minimum call back. But the collective
agreement contains no such qualifier. This Board should refuse to accept any
interpretation that requires the inference of words not included by the parties.
7
REASON FOR DECISION
The parties are in dispute about the interpretation of article 17.02 of the collective
agreement. They are, however, agreed about many aspects of the case. They agree that
the payment practice at Huntsville is different from that at Bracebridge and that the
praGtice outlined by Ms. Feaver is an accurate description of the present practice at
Bracebridge. There is no f~lctual dispute between them.
There is also no disagreement between them concerning the fact of a minimum guarantee
of four hours pay for a call-in under atiicle 17.02 and that this minimum guarantee of
hours applies to each call back irrespective of the duration. They are agreed on how the
method of payment of this guaranteed hours of pay is to apply with respect to a call-in
that begins and ends outside of an employee's regular shift where that employee leaves
the premises and a caIl~in that begins before a regular shift and continues into that regular
shift and the employee does not leave the premises. They do not, however, agree about
application of that guaranteed hours of pay where the employee is called in less than four
hours before her regular shift, completes her call-in assignment and leaves the premises.
That is the issue before me.
The cases provided to me by the Union set out the purpose and intent of the guarantee of
hours for call-back. Succinctly put, it is to compensate an employee for the
inconvenience of returning to the workplace outside of his/her regular hours and for the
disruption to his/her personal life that results. It is also a deterrent to the employer to
discourage demands to return to work for matters that could be dealt with during regular
hours. They are of little assistance to me in regards to the interpretation of article 17.02 as
it relates to the situation at issue. While they do deal with similar issues and with
collective agreement language that is similar or even identical to that before me, the
questions asked and answered in those cases are not relevant to the question before me.
8
In the Northeast case, (supra), the Board was considering article 17.02 of the collective
agreement which was almost identical to the one before me. However, that Board was
being asked if an employee could claim the four hour call back premium when they were
performing their duties by phone rather than at the hospital. The Grey Bruce (Brent) case
involved a similar situation.
In the Grey Bruce (Shime) case, (supra), the Board was being asked whether the
employer could require an employee who has been called in under a similar provision as
article 17.02 to remain at the hospital for the duration of the two hour minimum call back
to avoid the payment of another premium in the event of another call back.
In the Shell case (supra), the grievor and another employee had been called back to work
after their regular shift to do some emergency repair work. After they had arrived at the
workplace and changed into work clothes they were told that the repairs would be
deferred until the next day. He returned to his locker, changed into his street clothes
punched out and was in the process of driving his car out of the company lot when he was
asked to return to the plant to assist the supervisor on another project. The question for
the Board was whether the grievor was entitled to call in pay for one or two incidents of
call back. Specifically, did the employee have to physically leave the premises to be
eligible for another call-in?
While the principles respecting call back pay are relevant to the determination ofthis
grievance, they do not specifically address the question posed in the instant grievance.
Any decision as to the interpretation to be given the words of article 17.02 must be based
on the actual words used by the parties and with regard to the rules or canons of
interpretation that have been universally accepted and applied by arbitrators over the
years. It has been established in numerous previous arbitration awards that the primary
role of an arbitrator in cases such as the one before me is to determine the intentions of
the parties who drafted the agreement. Over time arbitration boards have developed rules
of construction to assist them in their task; for example, words are to be given their
ordinary or plain meaning unless that meaning would lead to an absurd result or unless
9
the parties have expressly indicated that a special or trade meaning was to apply; the
collective agreement is to be read as a whole; where two possible meanings exist,
efficacy or effectiveness is a valid consideration; each word should be given some
meaning and no words should be implied or added; that which comes first overrides what
comes later; specific provisions override general provisions and, finally, similar terms in
different parts of the agreement should be given the same meaning.
The intention of the parties when they dmfted article 17.02 is found in the words they
used when setting out the telms of call back pay.
17.02 Call Back
An employee who is called back to work after leaving the Hospital
premises and outside of his regular scheduled hours shall be paid a
minimum of no less than four (4) hours pay at time and one half (1 ~) his
regular straight time rate for work performed on each call-in. In the event
that such four (4) hour period overlaps and extends into his regular shift,
he will receive the four (4) hour guarantee payment of time and one half (I
\12) and his regular hourly rate for the remaining hours of his regular shift.
The reference to leaving the Hospital premises re1:erred to above will not
be applicable where an employee remains in the Hospital on Standby
alTangement with the Hospital.
First, the employee must have left the premises and be called back to the Hospital in
order to be eligible under this provision. The reference to "outside of his regular hours"
must have been included to ensure that the time period involved occurred either before or
afler the employee's regular shift. There can be no dispute about the intention of the
parties in that situation. It is equally clear that the parties intended to provide for a
guaranteed minimum of 4 hours pay at time and one half whenever an employee is called
back to perf 01111 additional work outside of her regular hours. That guarantee is to be
paid for each call-in. That interpretation acknowledges the principles enunciated in the
Shime decision (supra) concerning the purpose of the premium.
The parties join issue on the question of the meaning to be given to the words of the
second sentence of article 17.02. It says in clear and unequivocal language that in the
event the four hour period of the call-in overlaps and extends into the employee's regular
hours, the employee will be paid time and one half for the first four hours and straight
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time for the remaining hours of the regular shift. It is the Union's position that limitation
only applies ifthe call-in shift is contiguous to the regular shift, that is, there is no
opportunity to leave the premises between the completion of the call-in and the start of
the regular shift. Once the employee leaves the premises, it was said, she is entitled to
the four hour premium at time and one-half and her full regular shift of 7 Y2 hours, no
matter how much time elapses between the two.
If I were to accept the Union's interpretation, 1 would have to read into article 17.02 the
word "contiguous" or "continuous", which is contrary to the rule that an arbitrator should
assume the parties intended that every word be given some meaning and that no words be
added.
The first sentence of article 17.02 sets out the conditions that must be met for eligibility
for premium pay and the amount of pay allowed once an employee meets those
conditions. The second sentence is a limitation on the payment of the guarantee of hours.
If the hours of a call-in overlap and extend into a regular shift~ the premium continues for
the four hour guarantee period but the remainder of the shift is to be paid at straight time
rates. If the provision stated that the work of the call-in had to overlap into the regular
shift, the Union's argument might be more persuasive. However, the provision states that
if the four hour period overlaps and extends into the regular shift, hours that overlap are
to be paid at the premium rate and the remainder of the hours at straight time. There is no
other explanation for the use of the word "remaining" in the second sentence. That word
can only refer to the hours of the regular shift that follow the call-in period immediately
preceding that shift.
The Hospital and the Union offered examples of situations that might arise that, in their
submissions, would support their interpretation. These examples, while illustrating the
extremes that might result from one application or another, are not persuasive. No doubt
there will be cases where an employee is the recipient of a windfall, just as there will be
cases where an employee will be disadvantaged by another set of circumstances. That is
not unusual when an entitlement to a benefit is subject to an arbitrary time limitation.
"
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The conect interpretation must, if possible, be found in the language used by the parties.
In this case, their intentions are clearly expressed in article 17.02 If a call back period
overlaps and extends into a regular shift, the employee will be paid time and one half for
the four hour minimum guarantee and straight time for the remainder of the shift, whether
the employee leaves the premises after the call back or not.
DECISION
For the reasons set out above, the grievances are dismissed.
Dated in Toronto this 20th day of Mareh, 2009.
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