HomeMy WebLinkAboutHill/Restorick 09-05-27
IN THE MATTER OF AN ARBITRATION
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BETWEEN:
THAMES EMERGENCY MEDICAL SERVICES, INC.
(The "CompanyU)
AND
ONT ARlO PUBLIC SERVICES EMPLOYEES' UNION,
Local 147
(The "Union")
AND in the matter of the individual grievances of Messrs. James Hill and Lee Restorick
ARBITRATOR:
William A. Marcotte
APPEARANCES:
FOR THE COMPANY:
B. R. Baldwin, counsel
S. Bern, stu-at-Iaw
R. Liersch, genI. mgr.
J. Christie, ops. mgr.
FOR THE UNION:
A. Ryder, counsel
J. Rinehart, OPSEU rep.
L. Restorick, grievor
Hearings held in London on January 26 and May 6, 2009.
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AWARD
[n their individual grievances of April 2, 2008, Messrs. James Hill and Lee Restorick (the "grievors")
claim they were udenied a 30 min. uninterrupted meal break as per the Employment Standards Act
during my Mar. 31/08 day shift, also as per article 17.01 of the collective agreement." Remedy
sought is to be paid meal breaks at "time and one-half and for the problem to be corrected." The
Company position is that there has been no breach of the collective agreement and states in its April
6, 2008 response to the grievances as follows:
Article 17.01 of the Collective Agreement states; Meal breaks shall be provided in
accordance with the Employment Standards Act of Ontario. .
Section 17.02 of the Collective Agreement states; The parties agree that there will be no set
nwnber of coffee breaks. Work breaks shall be subject to workload and published Company
policy. Our current Meal Periods/Allowance and Rest Periods policy, page 73, states in the
Procedures section:
1. The dispatcher will attempt to provide each crew with one-halfhour lunch break between
the third (3rd) and fifth (5111) hour after commencement of the employee's shift and for the
twelve (12) hour shifts, an additional meal break between the eighth (8th) and tenth (10111)
hours.
2. It will be the intention of the dispatcher to allo\y .meal periods at the crew's home base
unless call volume dictates otherwise. In such latter cases, the dispatcher will attempt
to advise the crew in advance.
3. During the meal period, the crew will not be assigned non-emergency calls. Such meal
periods are provided with pay and in turn the crew will not be exempt from doing priority
three, four or eight calls.
I infonned you at our Step II meeting that I have met with CACC and they are working on
a lunch policy that can be enforced for all the Counties they cover and it is based on our
current policy. I mentioned that you should look at our current lunch policy and suggest
changes if you are not happy with it.
As a result the grievance is denied.
The parties referred to the following provisions of the collective agreement under which the
grievances arise:
ARTICLE 17 - COFFEE OR MEAL BREAK
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17.01 Meal breaks shall be provided in accordance with the Employment Standards Act of
Ontario.
17.02 The parties agree that there shall be no set number of coffee breaks. Work breaks
shall be subject to workload and published Company policy.
ARTICLE 18 ~ MEAL ALLOWANCE
18.01
The meal period is defined as the period from the third (3rd) hour to the fifth (5lh) hour
after commencement of the employee's shift and in addition, for twelve-hour shifts,
the period between the eighth (8lh) hour and the tenth (1 Olh) hour.
In regard to the Employment Standards Act, 2000, (UESN'), reference was made to PART I _
DEFINITIONS:
20.( 1) Eating periods - An employer shall give an employee an eating period of at least 30
minutes at intervals that will result in the employee working no more than five
consecutive hours without an eating period.
(2) Exception - Subsection (I) does not apply if the employer 31ld the employee agree,
whether or not in writing, that the employee is to be given two eating periods that
together total at least 30 minutes in each consecutive five-hour period.
21. Payment not required - An employer is not required to pay an employee for an eating
period in which work is not being performed unless his or her employment contract
requires such payment.
Reference was also made to Regulation 491/06 under the ESA:
Eating periods
5. (I) If an employer and the bargaining agent that represents an employee agree to a
term that addresses the employee's entitlement to an eating period as described in subsection
(2), that tenn applies to that employer and employee instead of section 20 of the Act.
(2) For the purposes of subsection (1), an employer and bargaining agent may agree
to any of the following tenns:
4. A term that provides that an employee is not eetitled to eating periods, but
provides that the employer shall make efforts to enable the employee to receive eating
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periods, whether or not the term entitles the employee to compensation or time free from
perfonning work if the employee does not receive an eating period.
6. A term that entitIes an employee to eating periods or provides that an employee
may be given an eating period, but provides that any eating period may be interrupted or
missed.
The Company provides emergency medical services to the community, which include ambulances
operated by2-person paramedic teams, Paramedics work 12-hour shifts, 0700-1900 hrs., and, 1900~
0700 hrs. On the day in issue, March 31,2008, Mr. Restorick, one of the grievors (Mr. Hill did not
testifY, however, he was Mr. Restorick's partner that day), begWl his shift at 7:00 a.m. and spent the
first 20 or 30 minutes checking over the ambulance, equipment and supplies. Having prepared for
the shift, the grievors were ready to respond to calls from dispatch (and were so while preparing their
ambulance). Certain codes are attached to types of situations to which paramedics respond Re
Ontario Public Employees Union and City of Hamil/on (July 6, 2007) unreported version (Carrier),
at pp. 5-6:
1. Codes 1 and 2 - these codes reflect transfers from hospital to hospital or from hospital
to home or vice versa, These are not urgent calls or codes.
2. Code 3 - is Wl urgent call of a non-life threatening nature.
3. Code 4 - this reflects a light[sJ and siren call which is the most urgent in nature and
always involves a life threatening situation.
4. Code 8 - calls of this nature involve the provision of coverage outside a team's normal
area of coverage. Typically, a team is dispatched from a certain station which is
responsible to provide coverage within a roughly defined geographical area of the City.
A team may be directed to cover for another station under a number of different
circumstances:
(a) While teams in an adjacent area are otherwise occupied, a paramedic team might be
assigned to roam that area in the event of an occurrence of another emergency.
(b) The two might be required to provide emergency back-up coverage at the scene of
an emergency such as a fire.
(c) To standby at a neighbouring station in event additional assistance is required in that
area.
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(d) Finally, to be assigned to standby at the neighbouring station for the benefit of the
team itself) for instance, to facilitate an eating period.
On March 31, 2008, the grievors received a Code 8 call from dispatch at approximately 8:30 a.m.
and were sent from their station, Station 2, to standby at Station 5. They returned to Station 2 at
approximately 8:50 a,m. At 9:34 a.m. they received a Code 3 call from dispatch to transport a
patient from a residence to Victoria Hospital. At the hospital, there was a "stretcher delay" in the
triage area because there was no place or bed available for the patient. After a some 1 Y2 hour delay,
the hospital assumed responsibility for the patient and the grievors returned to their base, Station 2.
They were put on a Code 8 standby for some 20 minutes, from 12:00 p.m. until 12:22 p.m., and then
were dispatched on a Code 4 to a nursing or retirement home and transported the patient to Victoria
Hospital. They were on another stretcher delay for 2 hours or so. From Victoria Hospital they were
dispatched on a Code 4 at approximately 3:00 p.m. to a residence and transported the patient to
University Hospital. They returned to their base) Station 2) at approximately 4:35 p.m. and were not
called out prior to the end of the shift at 7:00 p.m.
Under the Company's "Meal Periods/Allowances and Rest Periods" policy, (supra), relevant to the
grievors) dispatch:
will attempt to provide each crew with a one-half hour lunch break between the third (3rd)
and fifth (5th) hour after commencement ofthe employee) s shift and for the twelve (12) hours
shift, an additional meal break between the eighth (8th) and tenth (10111) hours.
Accordingly, on March 31, 2008, the grievors 3rd and 5111 hours of work were from 10:00 a.m. to
12:00 p.m.) and, from 3:00 p.m. to 5:00 p.m.) Le., the 8th to 10111 hours of work.
Mr. Restorick)s evidence is that he did not take his first meal break while on stretcher delay at
Victoria Hospital from roughly 10:00 a.m. to 11 :40 a,m.) "because while you're on stretcher delay
it's your responsibility to render any care to the patient, ifs basically not the hospitaPs
[responsibility]," and that he was not able to leave the patient. He said /'1 suppose you could", when
asked ifhe can leave the patient with his partner) "but if something is needed to be done there's only
one person, for example, to transfer the patient over to a bed." As to how it would "square" with his
expectations or duties as a professional and with going to the hospital cafeteria for lunch, thereby
leaving only one paramedic to tend to the patient he said, "Basically, we've never been given any
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direction. In my opinion, we are responsible for the patient until the hospital assumes responsibility,
but I can't speak for others/' He agreed he had about 20 minutes for a meal from the time they
arrived at Station 2 at roughly 4:40 p.m. until the 5 :00 p.m. period for the second meal ended. There
were no meal break times assigned to the grievors on March 31, 2008.
In cross-examination, Mr. Restorick agreed that during his shift, he can pick the time for a break;
"You take it when have the opportunity", and supervision does not assign specific break times. He
said, "Irs possible", that some parwnedics will eat a meal in a hospital's cafeteria while on stretcher
delay. There is nothing preventing him from doing so, as long as one member of the 2-person team.
stays with the patient. He agreed that if a patient they bring to the hospital requires immediate
attention that patient "moves to the front of the line" of those awaiting medical attention. On March
31, 2008, on the first stretcher delay, no medical treatment for the patient required both paramedics.
The dispatch service used by the Employer also services adjoining counties and districts for
emergency ambulance services.
In re-examination, Mr. Restorick said he adopted his practice of staying with a patient on stretcher
delay, because "In my opinion, both [parwnedics] should be with the patient at all times. . . just in
case something serious goes wrong. It's better and easier for both of us to be there". While on
stretcher delay, "sometimes" they will be informed of how long the delay may be. Unless the patient
can move on their own, one paramedic would need assistance in moving her or him from the
stretcher onto a bed. He assumed an orderly or nurse would assist in that situation. There are
occasions when a patient on the stretcher has needed medical action, but has not been sufficiently
ill to move to "the head of the line."
Mr. Jim Christie has been a certified paramedic for 35 years and is currently the Company's
operations manager. His responsibilities include the services' daily operations, overseeing
management staff. disciplinary matters, and reviewing and developing policies and procedures. He
recalled that sometime in April 2008, two or three paramedic teams were on stretcher delay at the
same hospital. The duty manager gave one paramedic permission to leave the hospital to get coffee
for the members of all the teams. The Union "suggested" that person should not have been allowed
to leave the hospital. There is "nothing in writing" resulting from that event. He said it would not
be inappropriate for one paramedic to take a meal break while on stretcher delay. There is no policy
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in place, but a single paramedic could ask hospital staff for assistance if a bed became available
during stretcher delay while the second team member was on a meal break.
In cross~examination, Mr. Christie said the duty manager who permitted the paramedic to go off site
for coffee was not reprimanded, but only told not to give such pennission again. The policy is not
to allow a paramedic to leave the hospital while on a stretcher delay but they are allowed to take a
m.eal break in the hospital. There is no written policy to that effect. He agreed that under the
Company's meal break policy, paramedics are not exempt from taking priority calls while on a meal
break, He believes the paramedic on meal break would take the team's portable radio and that the
other member would have to contact his or her partner by telephone through dispatch. He agreed,
"It's possible", that the Company might or could attract liability if something happened to a patient
while one team member was on meal break during a stretcher delay.
Mr. Christie agreed the meal break policy "makes promises for the dispatcher" on the part of the
Company. He said the dispatch service was "consulted as to what our policy was" for purposes of
coordinating the implementation ofthe Company's policy and the dispatcher policy. He agreed that
neither policy guarantees a workfree lunch period. As to the ESA requirements in s.20 for meal
breaks free from work, Mr. Christie made reference to above Regulation 49 I /06 of the ESA and said,
"We believe we're following [that] regulation", and it is his position that the Employer is not
required to provide for a work free lunch period. Whenever a paramedic team complains about how
dispatch deals with lunch breaks, "the duty manager calls dispatch to make arrangements, but it's
difficult to encourage [dispatch] . . . . We have meetings [ with dispatch] as to policy, but their policy
is if an emergency call comes in, they have to give it out [to a paramedic team]."
Mr. Christie agreed that "other than at the hospital" on the morning of March 31, 2008, there was
no opportunity for a 30~minute lunch break. He agreed the grievors were on duty when on the
stretcher delay, but not subject to a call from dispatch "as long as they have a patient with them."
The Company does not discourage paramedics from not leaving a patient when on stretcher delay.
He agreed there was not a complete 30~minute meal break for the grievors between 3:00 and 5;00
p.m.
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The Union argued that the absence of two proper meal breaks for the grievors on March 31 ~ 2008
breached the collective agreement under Articles 17 and 18. Under art, 17.01, meal breaks are to
be provided in accord with the ESA. In turn, the ESA requires, at s. 20. (I), "an eating period of at
least 30 minutes at intervals that will result in the employee working no more than five consecutive
hours without an eating period." Moreover~ s, 20.(2) does not apply in that there is no agreement
between the parties which creates an exception to s .20.(1). Under art. 18.0 1 ~ the parties' agreement
is such that in the instant case, the grievors were to have been provided their meal periods between
10:00 a,m. and 12:00 p.m.~ and~ 3 :00 p.m. and 5:00 p.m. Further~ an "eating period" as identified
in s. 20 (I) of the ESA is the equivalent of a "meal period" under art. 18.01 of the collective
agreement. As to what constitutes a proper "eating period" in Re City of Hamilton, supra, the
arbitrator states~ relevant to our purposes~ at p.16:
Rather~ it is my view that an "eating period" must entail some break in the continuation of
work such that it is distinguishable from those duties which comprise the employee's job.
Here, standby on emergency alert status is integral to the paramedic~s job. An eating period
which does not constitute a break from that status is still working time and does not provide
the relief from duties contemplated by Section 20 (of the ESA].
In the instant case, at no time between 10:00 a,m. and 12:00 p.m. were the grievors provided a meal
period in conformance with the above, proper view of what constitutes an eating period under the
ESA. As to the second required eating period, the grievors only had a some 20-minute opportunity
for a meal period between 3 :00 p.m. and 5 :00 p.m. and~ therefore, did not have a proper meal period
of 30 minutes.
The Union submitted that, given the nature of paramedic work, which requires alertness for purposes
of responding to emergency calls with lights and sirens at speeds exceeding posted limits and for
purposes of performing medical acts on patients~ it is important that the meal breaks occur at times
provided for under art, 18.01. Thus, a meal period prior to W:OOa,m. or after 5:00 p,m. on a 12-hour
shift is not in accord with the intent behind specifying time intervals for such breaks in art. 18.01,
i.e" that meal periods occur to aid paramedics in maintaining alertness during their 12-hour shifts.
The Union argued that the Company~s "Meal Periods/Allowances and Rest Periods" policy is
inconsistent with the provisions of the ESA under s. 20.(1), in that the policy gives discretion to
dispatch - "will attempt to provide" - as to when a meal period occurs, whereas s. 20. (1) of the ESA
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states the requirement in mandatory language, i.e., "shaH give". The policy, however, indicates that
Code 3, 4 or 8 calls are exempt from meal period requirements - as were the calls the grievors were
on at the time of the art. 18.01 meal intervals - but which exemptions are not in confonnance with
the meaning of a meal period stated in the City of Hamilton case. Further, if the Company policy
were to be found to properly apply in the instant case, it would be a nonsensical interpretation of the
provisions of the collective agreement, since under art. 17.01 the parties are agreed that meal periods
are to be provided "in accordance with" the ESA, and not in accordance with Company policy. To
then interpret art. 17.02 as removing the requirement for accordance with the ESA makes no sense.
Rather, art. 17.02 as properly interpreted does not apply to meal periods in that it addresses "coffee
breaks" not meal periods, and which interpretation creates harmony between articles 17,01 and
17.02.
Also, in order for the Company policy to be binding on the parties under Regulation 491/06, such
agreement must be in writing, in that s. 20.(2) of the ESA does not apply here. If the Company
position is that its policy is a proper agreement, it would have to be incorporated into the collective
agreement; there is nothing, however, in the collective agreement which corresponds with the
Company policy. The Company policy, further, does not govern the matter of meal periods in that
in order for it to apply, it has to be an agreement under Regulation 491/06. However, art. 17.01
provides for meal breaks in accordance with the Act and not in accordance with its Regulations. For
the Regulation to apply, art. 17.01 would have to state, in effect, "In accordance with an agreement
to follow Company policy allowed under the Act and its Regulations."
Thus, the Union argued that the rules governing meal periods arise under the ESA itself at s. 20.(1),
and, art, 18.01 of the collective agreement. Therefore, on that view, and in light of the meaning of
a meal period in the City of Hamilton case, in the instant case the grievors were not assigned a proper
duty~free meal period at any time during their shift on March 31,2008; they were on a stretcher delay
between 10:00 a.m. and 12:00 p.m. and only had a 20-minute opportunity for a meal period between
3:00 p.m. and 5:00 p.m.
The Union submitted that appropriate remedy for the Company's breach of the collective agreement
is to award each grievor one hour of work at one and one~halftimes their regular hourly rate of pay,
i.e., $31.48 x 1 ~ , or $47.22. It was submitted that this calculation most closely accords with the
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wage schedule in Schedule "A" of the collective agreement. On March 31, 2008, the grievors' 12~
hour shift included entitlement to two, 30-minute meal breaks. That is, the Company was entitled
to receive II hours of work but on that day, it received near 12 hours of work, or 40 minutes of work
it was not entitled to receive. Moreover from 4:40 p.m. to 5:00 p.m., the grievors were still on call.
If the meal breaks are not given inside the shift, they should be treated for compensation purposes
as having been pushed outside the shift, thereby creating an overtime circumstance. In this regard,
the arbitrators in the City of Hamilton case and in Re Ottawa-Carleton Public Employees Union,
Local 503 v. Ottawa (City) (Meal Breaks Grievance), [2006] O.L.A.A. No. 304, 86 C.L.A.S. 56
(Potter) wrongly concluded that missed meal breaks do not attract overtime rates of pay. In those
awards the arbitrators misHconceived the implications, for hours of work purposes, of a denied meal
break. In contrast, the strength of the argument being made here is shown by the practicalities of the
extant circumstances. A dispatcher can ignore meal break requirements, the Employer obtains 12
hours of work but according to the Hamilton and Ottawa cases, would only have to pay one-half the
grievors' regular hourly rate for one extra hour of work, i.e., pays less than the regular rate for one
extra hour of work. Such practice improperly encourages dispatch to ignore the requirement to
assign meal periods; "it's cheaper to ignore the rule than to honour it." Indeed, these arbitrators'
approaches to remedial compensation lCpunishes the victim" and it is not in the public interest to
encourage dispatch to ignore the ESA. On the other hand, support for compensation based on
overtime rates is provided for in Re The Corporation Of The County Of Frontenac and Ontario
Public Service Employees Union, Local 462 (December 4,2007) unreported version (Lee), in which
"bottom line" award the arbitrator calculated damages at overtime rates for all time worked by way
of a missed meal break for paramedics, and which approach reflects the difficulty paramedics, like
here, have in getting dispatch to recognize their right to a meal period.
As to the Company's position, as provided for in Mr. Christie's evidence, that there exists
opportunities during the shift for paramedics to have meal periods, it is unreasonable to call a
stretcher delay an opportunity to eat. If one of 4 or 6 paramedics on stretcher delay cannot go for
coffee, it is difficult to view it as reasonable for one member of a 2-person paramedic team to leave
the patient and go to the hospital cafeteria for a 30-minutes meal break. Further, there is no
Company policy that allows paramedics to take a meal break while on stretcher delay. If it were to
exist, one could speculate that liability issues could arise if something medical in nature happened
to the patient and only one paramedic was available to assist. Rather, stretcher delay is the
I ]
equivalent of a Code 8. As such, paramedics are on duty and do not have an opportunity to eat a
mea], in that the patient remains the team's responsibility until the hospital admits that patient. In
this respect, a missed meal period during a stretcher delay is not a so-called "technical breach" of
the collective agreement as appears to be the arbitrator's view in the City of Hamilton case. Indeed,
to call a breach of a collective agreement as merely "technicaP' in nature and thereby not attracting
remedy, is to effectively remove enforcement of obligations arising under a coJIective agreement.
Rather, there is no technical breach in the instant case and remedy is required to compensate the
grievors for the breach, by the Company on March 31, 2008, of the collective agreement.
The Company argued that if one were to pretend in the instant case that art. ] 7.02 of the collective
agreement and Regulation 49 ]/06 did not exist, the circumstances would be those faced by the
arbitrators in the City of Hamilton and Ottawa (City) awards. Nonetheless, in applying the approach
in the City of Hamilton case, on March 31,2008, the grievors had "down time" i.e., were on duty but
non-assigned, for approximately] Y2 hours from the start of their shift at 7:00 a.m., and for some 38
minutes between 8:56 a.m. and 9:34 a.m. Between 9:34 a.m. and 4:38 p.m., they were not at their
base, Station 2, but during that period they were on a stretcher delay for roughly ] Y2 hours in the
morning, and, for some 2Y4 hours in the afternoon. Ifone takes the Union's argument to its extreme,
none of these periods of time matter for meal break purposes, because paramedics are continuously
subject to the vagaries of their profession which includes dealing with life-and-death situations.
Thus, every day there would be a violation of the ESA by the very fact on being on duty for the entire
shift, for which they are paid 12 hours, not 1] hours. And it is the fact they are on duty for the entire
] 2 hours that the arbitrators in both the City of Hamilton and Ottawa awards imported a very
practical element into their reasoning, viz., the nature of the paramedic industry is such that meal
periods are self-regulated by paramedics. In that respect, the ESA at s. 20.(1) does not state when
mea] breaks are to be taken. Thus, in City of Hamilton, the arbitrator described what he caJled a
"technicaP' breach of the collective agreement in noting the nature of the industry and self-regulation
of meal periods. (In that regard, Mr. Restorick did not testify that he and his partner do not get
breaks or do not take breaks.) In that case, arbitrator Carrier noted that a Code 8, such as were the
stretcher delays on March 31, 2008, may qualify only as a "technical" breach of that coUective
agreement which, however, did not contain a provision like or similar to art. 17.02 of the collective
agreement. By "technical" the arbitrator states (at p.14 of the supplementary award): "Those where
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there was a technical breach of the Act [Le.) s. 20 (1)] but employees had ample opportunity in
downtime to enjoy a meal break [on a Code 8 at their base]'\ and did not award a monetary remedy
for these sorts of breaches. However) where he found there were "non-technicaP' breaches of s.
20.(1) of the ESA, it was on occasion when, at p.26 of the initial award, there was "no time frame
of 30 consecutive minutes or more either at the home station or another station or on a Code 8 . . ."
As to compensation for those missed breaks, he awarded each paramedic $10.00 for each missed
meal period, an amount provided for in the interest award between those two parties Re Hamilton
Emergency Services (I'he City of Hamilton) and O.P,S.E. u., Lac, 256 (October 5, 2007) unreported
version (Swan), which was issued after arbitrator Carrier's initial award. Similarly, in the Ottawa
case, arbitrator Potter rejected the notion of 1 Y2 times regular hourly rate of pay because it would be
to award a penalty in cases of missed meal periods. Rather, arbitrator Potter determined that the
difference between the regular rate which paramedics were paid for meal periods and their overtime
rate was appropriate compensation by way of remedy. In that regard, however, in the instant case
overtime pay is tied to a paramedics weekly average hours of work at art. 35.04, so it is debatable
that if remedy be awarded, the grievors would be entitled to an extra one-half hour of pay for each
missed meal period. In any event, both art. 17.01 and Regulation 491/06 do exist and apply here.
The Company submitted that in recognition that there were issues in the ambulance sector
concerning meal breaks, the provincial government made a very specific regulation, 491/06, titled
"Terms and Condition of Employment In Defined Industries ~ Ambulance Services)), to deal with
those issues. Thus, for purposes of art. 17.01 of the collective agreement, the reference therein to
"the Employment Standards Acf' necessarily refers to regulations thereunder, including Regulation
491/06. It would be an odd argument, indeed, to say that the parties had intended that absent
reference to regulations, only the ESA and not its regulations can be applied or taken into account.
Rather, a holistic reading of the generic reference to the ESA in art. 17.0 I means the Act and its
regulations,
In specific regard to Regulation 491/06, section 5 provides employers and union bargaining agents
with a number of options to deal with "Eating Periods", In art. 17.02 the parties have made an
agreement that is provided for under Option 4 in s, 5.(2) of the Regulation:
A term that provides that an employee is not entitled to eating periods) but provides that the
employer shall make efforts to enable the employee to receive eating periods, whether or not
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the term entitles the employee to compensation or time free from performing work if the
employee does not receive an eating period.
In regard to the Company's policy under art. 17 .02~ in that article the parties are agreed that "Work
breaks shall be subject to . . . Company policy." As used in art. 17.02, "subject to", means such
breaks are governed by Company policy, as is that term's usual dictionary meaning, both in Black's
Law Dictionary, 4111 ed. (St. Paul~ Minn.: West Publishing Co.) and Random House Unabridged
Dictionary, 2nd ed. (n.p.). The policy does not guarantee paramedics meal breaks but~ rather, it is a
promise to endeavour to give those breaks at the times designated in the policy, which language
conforms with s. 5.(2) of Regulation 491/06. And because this policy is clearly referenced in art.
17.02, it need not be stated that it is incorporated into the collective agreement. Further ~ since a meal
break is a "work break~\ the second sentence of art. 17.02 is not limited to reference to only coffee
breaks, as are addressed in the first sentence of art. 17.02. Thus, the parties do have an agreement
under art. 17.01~ which agreement is that meal periods are properly subject to Employer policy and
which policy conforms with s. 5.(2).ofRegulation 491/06 under the ESA, as referred to in art. 17.02.
As to the Union position that a stretcher delay does not involve a proper time for a meal break~
significantly, Mr. Christie's uncontradicted evidence is that paramedics are not subject to discipline
should they exercise their professional discretion and take a meal break at a suitable or appropriate
time during the stretcher delay.
In reply, the Union iterated that when a paramedic does not get the 2 meal breaks, he or she works
for 12 hours and loses 1 hour of paid non-work. That lost time must be compensated and at the
overtime rate because it cannot be accounted for in the 12whour shift. The argument that "down
time" in a shift provides opportunities to eat a meal disregards the Company's policy which,
presumably, has practical application and the policy does not simply intend to make life easier for
dispatchers. Further, opportunities to eat a meal at the beginning or end of a shift is not what is
required by way of specifying meal periods as between the 3rd and 51h hours~ and 8th and 10lh hours
ofa 12-hour shift. As to legislative and collective agreement provisions that apply in the instant
case, it is s. 20.(1) of the ESA and not Regulation 491/06. Similarly art, 17.01 applies and not art.
17.02 of the collective agreement in that art. 17.01 specifically refers to "meal breaks". Finally, a
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Code 8 call is not similar to a stretcher delay because in the latter case, the paramedics are not on
call.
The issue to be determined in this award is whether or not the grievors improperly were not provided
with two meal breaks on their March 31, 2008 12-hour shift. I find the merits of the grievance, on
the evidence and submissions before me, require determination of the correct or proper interpretation
of the language in Article 17, there being no dispute as to the definition ofa "meal period" under art.
18.01, viz., "from the third (3rd) hour to the fifth (5Ih) hour after the commencement of the employee's
shift and . , . for twelveMhour shifts, the period between the eighth (8lh) hour and the tenth (loth)
hour," In that regard, it is clear that a "meal period" in art. 18.01 is a "meal break(sr' as provided
for in art. 17.01.
When required to interpret the language of a collective agreement, that task is addressed in Brown
and Beatty, Canadian Labour Arbitration, 4lh ed. (Aurora, Ont.: Canada Law Book, Inc.), at para.
4:2100 as follows:
It has often been stated that the fundamental object in construing the terms of a collective
agreement is to discover the intention of the parties who agreed to it. As one arbitrator,
quoting from Halsbury's Laws of England, stated in an early award:
"The object of all interpretation of a written instrument is to discover the intention
of the author, the written declaration of whose mind it is always considered to be.
Conseq uently, the construction must be as near to the minds and apparent intention
of the parties as is possible, and as the law will permit."
And further:
"But the intention must be gathered from the written instrument. The function of the
Court is to ascertain what the parties meant by the words they have used; to declare
the meaning of what is written in the instrument, not of what was intended to have
been written; to give effect to the intention as expressed, the expressed meaning
being, for the purposes of interpretation, equivalent to the intention."
Accordingly, in determining the intention of the parties, the cardinal presumption is that the
parties are assumed to have intended what they have said, and that the meaning of the
collective agreement is to be sought in its express provisions.
15
In applying the above approach, with which I concur, art. 17.01 states: "Meal breaks shall be
provided in accordance with the Employment Standards Act of Ontario". Relevant to our purposes~
s. 20.(1) of the ESA requires that an employer~ in mandatory language by use of the term "shall
give"~ its employees "an eating period of at least 30 minutes at intervals that will result [again~
mandatory language] in the employee working no more than five consecutive hours without an eating
period/~ Based on the above language in s. 20.( I) of the Act, there can be no doubt that a paramedic
must be provided with a meal break under art. 17.01 of no less than 30 consecutive minutes and at
such times that he or she works not more than 5 consecutive hours without a meal break.
Accordingly~ on a 12-hour shift~ paramedics are to have two~ 30 consecutive-minute meal breaks at
times that do not result in a paramedic working more than 5 consecutive hours without a meal break.
Were the ESA to say nothing more about the matter of ueatingperiods" than is stated in s. 20.(] )~
then a failure on the part of the Company to ensure that paramedics are provided with two 30-minute
meal breaks during a 12-hour shift would be in violation of the ESA and, hence~ art. 17.0 I of the
collective agreement. Whatever may be the Company~s policy concerning "work breaks" under art.
17.02, that policy, with nothing more~ cannot supercede legislative requirements. In that regard~
while the Union argued that "work breaks" in art. 17.02 are not inclusive of "meal breaks" under art.
17 .01 ~ a "meal break" does constitute a "work break" Re City of Hamilton, supra, p.14 ofthe initial
award: ". . . it is my view that 'an eating period' must entail some break in the continuum of work
such that it is undistinguishab1e from those duties which comprise the employee~sjob". That is, the
essence of a "meal break" is a cessation of an employee~s duties and thus, a meal break is identical
to a "work break" under art. 17 .02. Further~ I note that Article 17 is entitled "Coffee or Meal Break"
and it does no offence to articles 17.01 and 17.02, when read together~ to conclude that a "meal
break" is a "work break" and vice versa. In any event, the ESA does address the matter of eating
periods~ relevant for our purposes, in Regulation 491/06.
As concerns Regulation 491/06, I note that it is entitled "Terms and Conditions Of Employment In
Defined Industries - Ambulance Services". That is~ this Regulation directly addresses the service
industry in which the paramedics in the instant case are employed and, therefore, is relevant to the
resolution ofthe dispute at hand. Accordingly, Regulation 491/06 must be considered in determining
the merits of the grievance, and which Regulation expressly addresses the matter of "Eating Periods"
in s. 5.( I). Thus, and with respect, I must disagree with the Union submission that because art. 17.01
only refers to the "Employment Standards Act" and does not expressly reference Regulations under
16
the Act, Regulation 491/06 is not applicable for purposes at hand. Further, section 48 (12) 0) of the
Labour Relations Act states that the "powers of arbitrators" include:
48. (12)0) to interpret and apply human rights and other employment~related statutes,
despite any conflict between those statutes and the terms of the collective
agreement.
There is no limitation in s. 48 (12) G) to "employment-related statutes" such that regulations under
an act cannot be considered by arbitrators. Further, s. 141.(1) of the ESA states:
URegulatioDS - The Lieutenant Governor in Council may make regulations for carrying out
the purposes of this Act."
It is clear, therefore, that reference to "employment-related statutes" under s. 48 (12) G) of the
Labour Relations Act includes regulations under those statutes.
Relevant for our purposes, s.5.(1), and s.5.(2) in part, state:
5. (]) If an employer and the bargaining agent that represents an employee agree to
a term that addresses the employee's entitlement to an eating period as described in
subsection (2), that term applies to that employer and employee instead of section 20 of
the Act.
(2) For the purposes of subsection (1), an employer and bargaining agent may
agree to any of the following terms:
4. A term that provides that an employee is not entitled to eating periods, but
provides that the employer shall make efforts to enable the employee to receive eating
periods, whether or not the term entitles the employee to compensation or time free from
performing work if the employee does not receive an eating period.
6. A term that entitles an employee to eating periods or provides that an employee
may be given an eating period, but provides that any eating period may be interrupted or
missed.
In art. 17.02, the parties are agreed that "Work breaks shall be subject to workload and published
Company policy." That is, the Employer and the Union, under s. 5.(1) of the Regulation, "agree to
a term that addresses the employee's entitlement to an eating period as described in subsection (2)."
17
Specifically, in art. 17.02 the parties' agreement is that meal breaks "shall be subject to.. . Company
policy". Relevant for our purposes, the Company's policy states, under "Procedures!):
1. The Dispatcher will attempt to provide each crew with a one-half hour lunch break ....
3. During the meal period, the crew will not be assigned non-emergency calls. Such meal
periods are provided with pay and in turn the crew will not be exempt from doing priority
three, four or eight calls.
As can be seen from the above, the Company policy indicates that, relevant for our purposes,
dispatch "will attempt to provide. . . a one-half hour lunch break!) between 10:00 a.m. and 12:00
p.m" and a second lunch break between 3:00 p.m. and 5:00 p.m" for paramedics on the 7:00 a.m.
to 7:00 p.m. shift, with the "intention!) for the paramedics to eat at their home base. While on lunch
break, paramedics "will not be assigned non-emergency calls!), however, they are not exempt from
being assigned Codes 3, 4 and 8 calls. That a meal break. can be interrupted for these Code calls
acknowledges the nature of the Company's business; it provides the community with emergency
services, and emergencies are unplanned and unforeseeable events to which the Company must
respond. Given the nature of the business, it would be inconsistent for paramedics not to respond
to a Code 3,4 or 8 call because they are on an assigned lunch break.
In applying the agreed-to Company's policy to the events of March 31,2008, the grievors responded
to a Code 3 call at 9:34 a,m. and arrived at the hospital at 10:30 a.m. Due to a stretcher delay, they
did not leave until I ] :37 a.m., arrived at their home base at 11 :46 a.m., then left at 12:00 p.m. on a
Code 8 call. Further, it is Mr. Restorick's undisputed evidence. that the Company remains
responsible for a patient brought to a hospital until the hospital assumes responsibility for him or her.
Accordingly, the Code 3 remained in effect during the period of time of the stretcher delay, until
11 :37 a.m. Thus, the grievors did not have an opportunity for a 30-consecutive minute meal break
between 10:00 a.m. and ] 2:00 p.m. because they were on a Code 3 call. Later that day, at 3:02 p.m.
the grievors responded to a Code 4 call and arrived at the hospital at 3:37 p.m. They left the hospital
at 4: 13 p.m. and arrived at their home base at 4:37 p.m. Thus, the grievors did not have an
opportunity for a 30-consecutive minute meal break between 3:00 and 5:00 p.m.
18
As indicated by the above, the grie\(ors were on a Code 3 call during the first meal break and a Code
4 call during the second meal break such that in either case they did not have an opportunity for a
30-consecutive minute meal break. Under point 3 of the Company policy, both the Code 3 and the
Code 4 calls are recognized and agreed~upon exemptions to the grievor's entitlement to their lunch
breaks during those time intervals. Accordingly, it cannot be found that the Company's failure to
provide the grievors with their 2 lunch breaks during the designated intervals on March 31, 2008
breached art. 17,01 of the collective agreement.
Based on the foregoing, I find that the Company did not breach the collective agreement when the
grievors were not provided with the opportunity for a 30~consecutive minute lunch break between
10:00 a.m, and 12:00 p,m" and, between 3:00 p.m. and 5:00 p.m. on March 31,2008.
The grievances, therefore, are dismissed.
tr.-
Dated at Toronto, this ~ day of
, 2009.
~) A<<1~.a~~Mii!1[
Arbitrator