HomeMy WebLinkAbout2017-2277.Prisor et al.21-04-19 Decision
Crown Employees Grievance Settlement
Board
Suite 600
180 Dundas St. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Commission de
règlement des griefs
des employés de la
Couronne
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
GSB# 2017-2277; 2019-1568; 2019-1569; 2019-1570; 2019-1571; 2019-2068;
2019-2069; 2019-2070; 2019-2445
UNION# 2017-0546-0025; 2019-0546-0009; 2019-0546-0010; 2019-0546-0011;
2019-0546-0012; 2019-0546-0018; 2019-0546-0019; 2019-0546-0020; 2019-0546-0022
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Prisor et al) Union
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The Crown in Right of Ontario
(Ministry of the Attorney General) Employer
BEFORE Nimal Dissanayake Arbitrator
FOR THE UNION Christopher Bryden
Ryder Wright Blair & Holmes LLP
Counsel
FOR THE EMPLOYER Regina Wong
Treasury Board Secretariat
Legal Services Branch
Counsel
HEARING September 28, 2021; February 25,
March 31, and April 7, 2022
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Decision
[1] A number of group grievances filed by employees in the Special Investigations Unit
(“SIU”) of the Ministry of the Attorney General (“employer”) came before me on
January 22, 2021, for mediation-arbitration under article 22.16 of the collective
agreement. The issue in dispute in all of the grievances is the same. That is,
whether time the grievors spend travelling from their assigned headquarters to
employer sites for administrative purposes should be compensated as travel time or
work time. The parties were not interested in settling the grievances through a
mediated compromise, because in their view the dispute is likely to arise on any on-
going basis. They jointly requested that the Board determine the grievances on the
basis of representative witnesses, to provide guidance to the parties.
[2] By decision dated January 30, 2021, the Board gave directions on process, including
requirements for submitting willsays from witnesses within specific timelines. The
Board undertook to issue a decision on the merits, and if necessary, the employer’s
motions on estoppel, timeliness, and a motion to strike post-grievance evidence. If
liability is found, the Board was asked to remain seized of remedy. The requirement
in article 22.16 of issuing the decision within 5 days was waived by the parties.
[3] The Board’s directions allowed the union to provide up to three “willsay” statements
from representative grievors. The union provided willsays from two representative
witnesses, Mr. Rolf Prisor and Mr. Mike Dvernechuk. The employer submitted
willsays from two witnesses, Ms. Trish Waters and Mr. Paul Dempsey. Each of the
individuals adopted their own willlsay statements as accurate, and each was
subjected to cross-examination and re-direct examination. Much of the facts in the
Prisor and Dvernechuk willsays were substantially the same. Both are employed as
Fixed-Term “as needed” Investigators. In this decision, unless otherwise specified,
references to “FXT Investigator(s)”, should be read as a reference to Fixed-Term as
needed Investigators.
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[4] Article 14.1 of the collective agreement reads: “Employees shall be credited with all
time spent in travelling outside of working hours when authorized by the ministry”.
FXT Investigators have no regularly scheduled work hours. They are paid based
on their actual hours worked. FXT Investigators sign annual contracts, which require
them to provide a minimum availability of twenty days at 24 hours each day. During
that “available” time they have to be ready to respond in a timely manner if called
out for an investigation.
[5] The SIU office is in Mississauga, Ontario. FXT Investigators’ headquarters is their
own homes. The dispute centres around occasions when FXT Investigators are
required during “available” periods, to travel to the SIU office or other employer sites,
to attend mandatory training, for meetings or for other non-investigation
administrative purposes. (Hereinafter “non-investigation travel”). If they are called
out to investigation related work from their home, the time spent travelling in
response is treated as work and regular wages are paid. However, travel approved
by the employer for non-investigation purposes is credited as travel time under
article 14.1. Travel credits do not count for overtime or pension purposes. The
grievances allege that non-investigation travel should also be treated as “work” and
paid as such. The two union witnesses, in their willsay statements and their
testimony rely on almost identical circumstances as the basis for their claim.
[6] Employer policy requires FXT Investigators to have with them during non-
investigation travel, all equipment necessary to be able to respond to a call for an
investigation in a timely way. Employer Policy requires them to have with them
personal items, including clothing and toiletry supplies, sufficient for several days in
case of a call-out for an investigation requiring several days. In addition, they are
required to have with them the following: Ministry-issued laptop (and accessories
including charging cable and thumb drives); Portable printer; Pager; Cell phone (and
accessories including charging cable); Portable GPS; Notebook and notepads
(steno, legal graph, and letter lined) and pens; Official notebook; Necessary
paperwork (including designations, medical releases, pamphlets, etc.); Business
cards; SIU badge with wallet; Flashlight; Tape measure; Stopwatch; Voice recorder;
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Microphone; Headphones; Reflective safety vest; SIU cold weather gear (including
toque, cap, wind jacket, cold weather coat, cold weather pants); Document folder;
and Briefcase.
[7] The willsays assert that FXT Investigators are responsible for the safety and security
of the foregoing employer property while travelling. If they travel in Ministry vehicles
or rental vehicles, they are responsible for the vehicles also. While neither grievor
has had this experience, if one or more co-workers attending the same training or
meeting could travel with them as passengers then FXT Investigator would be
responsible for the passengers’ safety.
[8] The grievors listed a number of employer policies/protocols, which they are subject
to during non-investigation travel. Particular reference was made to the policy
requiring them to be attired in business dress while travelling for non-investigation
purposes, to be able to promptly respond to a call to attend an investigation scene.
[9] While travelling FXT Investigators “keep up” with their lead investigators (usually
Full-time Investigators) in relation to their on-going investigations. If safe to do so,
they took phone calls from the lead, and may do other investigation related duties if
required by the lead. If they do this, they are compensated with regular wages only
for that portion of the travel time actually spent on investigation related work. The
balance of the time is treated as travel time.
[10] Mr. Prisor and Mr. Dvernechuk set out in their willsays, six and thirteen examples
respectively, of travel on particular dates, which in they claim were incorrectly paid
as travel time. While the willsays set out details of each instance of travel, including
mode of travel, distance travelled, departure and arrival time, these are not of
significance for the issue the Board is tasked to determine. The facts material to
that determination are not in dispute. The dispute is whether time spent travelling
in those undisputed circumstances is properly treated as travel time under article
14.1, as the employer has done prior and subsequent to the filing of the instant
grievances.
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[11] It is undisputed that all non-investigation travel in question happened during periods
when the witnesses were on “available” status. As noted, whenever FXT
Investigators are on available status, they are required to be ready to respond to call
outs for investigation work in a timely manner, whether they are travelling or not.
The witnesses, after setting out the facts related to almost every example provided,
wrote to the effect that they take issue with the employer treating the travel in
question as travel time “… since I was required to be available for work and to be
called-out to a scene at all times”. If this amounts to a claim that FXT Investigators
are entitled to be paid regular wages because they were on available status it is
simply wrong. When a FXT Investigator provides 20 days at 24 hours a day for a
particular month, he is on available status during all times he had provided. If the
grievors’ position is accepted that FXT Investigator would be guaranteed wages for
those 20 days at 24 hours, regardless of whether or not he is called out for
investigation work during those days. If that is the case, it would be irrelevant
whether or not they had any non-investigation travel at all. They would be entitled
to wages just by being on “available” status ready to be called out, even if they were
watching TV or sleeping at home.
[12] The union submitted that the travel in question is not travel time because it did not
happen “outside of working hours when authorized by the Ministry” as contemplated
in article 14.1. It was authorized travel during working hours. As I have pointed out
earlier, this could be so only if all “available” time is deemed to be “work hours”. I
have rejected that position. The grievances will succeed only if the union satisfies
the Board that the particular circumstances in which the travel was undertaken
converted time which normally would have been travel time into work time.
[13] Union counsel referred to numerous older arbitration awards where the test was
described as whether the employee was “responsibility free” while travelling. He
submitted that an employee would be responsibility free only in rare situations, such
as where the employer simply purchases an air ticket for the employee, any needed
equipment accompanying the employee is in the cargo hold, and the employee does
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not have to worry about the equipment. Then the employee is “responsibility free”
and free to do whatever he wants during the flight, including sleep.
[14] The phrase “responsibility free” may be literally read to mean “no responsibility at
all” as the union suggests. If interpreted in that manner any responsibility,
regardless of how minor, incidental, or notional that may be, the entire time spent
travelling would be “work”, and not travel time within the meaning of article 14.1.
However, this Board has rejected that interpretation.
[15] The following GSB decisions addressed the issue in dispute here: Re Buchanan
34/78 (Kennedy); Re Marcotte, 54/78 (Adams); Re Anwyll, 406/83; Re Tomasini
71/78 (Adams); Re Wright, 249/89 (Fisher); Re Leblanc, 2416/86 (Forbes-Roberts);
Re Wang, 1889/90 (Samuels); Re Gabriel, 2249/92 (Finley); Re Professional
Engineers & Architects of the OPS, 840/99 (Briggs); Re Daye, 2006-2348
(Dissanayake).
[16] In the Re Daye (supra) decision dated March 17, 2008, the Board addressed the
nature and extent of the “responsibility” that would convert what otherwise would be
travel time under article 14.1 into work time. The Board reviewed arbitration awards
where arbitrators had applied various criteria to distinguish between travel time and
work, and noted that there was inconsistency in the case law. At p. 19, the Board
concluded:
To be clear, it is my finding that where an employee travels for the employer
under circumstances where he has actual job responsibilities during the
journey, he would be “working”, even though travel is not part of his regular
job duties.
At p. 20 the Board reiterated:
The test always is, is the employee carrying out actual job responsibilities
during the journey”.
[17] At pages 20-23 the Board wrote:
Having concluded that the appropriate test, and the sole test, is whether or not the
employee had responsibilities while travelling, the next issue is to determine the
nature of the responsibilities that would turn time spent travelling into “work”. In this
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regard, each case will obviously turn on its own particular facts. However, certain
principles may be gleaned from the Board’s jurisprudence. Thus the Board has not
considered the fact that an employee was in uniform while travelling; the fact that
the employee had some employer issued supplies while travelling; or the fact that
the employee was subject to the general responsibilities inherent in his position; to
be sufficient to turn time spent on travel into “work”. See, Re Marcotte (supra). Nor
has the Board considered a minimal responsibility to be sufficient. In Re Buchanan
(supra), the Board did not consider the evidence that the grievor had done an initial
checkout of the vehicle which took a minimal amount of time to be significant, in
the absence of evidence that the grievor had continuing responsibility during the
trip. At p. 7, Vice-Chair Kennedy observed:
In addition, we did receive some oral testimony, but in our view that
evidence did not alter the underlying fact that the grievor was
essentially responsibility free in the sense of his normal job duties
during the initial period of the trip. There are certain inherent duties
and obligations on any employee, and particularly one in uniform,
that are inherent with the position at all times and we cannot see
that these were any different during the travelling period than at any
other time.
The case law suggests that the Board will consider travel time to be work time only
where the employee has real, as opposed to notional, job responsibilities while
travelling. Thus the fact that the grievor in this case was in uniform and was subject
to employer policies and legislation while travelling is not a sufficient basis to find
that he was working. Those are responsibilities inherent at all times in the position
the grievor held. In the absence of some specific and real responsibility to act
pursuant to such policies or legislation while travelling, that is not a sufficient basis
for concluding that the grievor was working while travelling. I turn next to the
union’s submission based on the fact that the grievor had with him hand-held radio
equipment, radio batteries, a satellite telephone, a GPS unit and an Initial Attack
Incident Commander Kit. Again I conclude that the fact that these tools of trade
accompanied the grievor on the trip is not sufficient to make the time spent on the
trip work time, in the absence of evidence that there was an expectation that the
grievor would use any of it during the trip or that he had some real responsibility
with regard to those. The evidence is clear that such was not the case. Paragraph
37 of the agreed statement of facts states that “there was no expectation or
direction given to the grievor that he was to hold onto any of the equipment or to
keep it in his personal possession during the course of the travel to British
Columbia”. Paragraph 40 states that “None of the equipment in this circumstance
was brought into the passenger area of the plane and was instead stored with
baggage in the cargo area for the duration of the flight”. The evidence does indicate
that the employees, including the grievor, carried their bags from the Sudbury Fire
Centre to the apron and carried their bags from the airplane upon arrival in British
Columbia (paragraph 39). However, that minimal activity is not sufficient, in the
absence of evidence that the grievor had some continuing responsibility while
traveling.
The fact that an employee was in possession of the usual tools of the trade
associated with his/her job has not been considered to be sufficient to convert time
spent travelling into “work time”. Thus in Re Gabriel (supra), the grievor was a Tax
Auditor. At p. 4 the Board concluded as follows:
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…the possession of a lap-top computer, files and briefcase during
travel time outside of regular working hours does not create the
level of responsibility which would constitute a continuing
responsibility to care for Ministry property or personnel in the
parameters set by the current Grievance Settlement Board
jurisprudence. Therefore, the time spent in travel outside working
hours must be treated as travel time, not work time, and Article 23
applies.
Similarly, in Re Professional Engineers and Architects of the Ontario Public
Service (supra) at p. 27, the Board wrote:
Specifically I agree that “travelling outside of normal hours is not “work”,
unless during the travel the employee has some responsibility towards the
Employer. Indeed, I would go further and say that the responsibility towards
the Employer has to be something more than being in possession of certain
nominal “tools of the trade”.
At p. 28 the Board states:
The Employer asserted that the fact engineers carried various pieces of
equipment with them or travelled with other employees is sufficient reason for
the grievances to fail. I think not. It is true that the grievors have some
equipment with them in their cars like safety boots, hard hats or perhaps laptop
computers. However, tape measures and paper documents in the trunk of
either a Ministry vehicle or a personal vehicle cannot magically change travel
into work. The carrying of implements is not a determinative criterion for these
grievances.
I conclude that the minimal responsibilities the grievor had with respect to the
equipment while travelling in the particular circumstances is not the kind of
responsibility which would turn time spent travelling into work time.
[18] The grievors in the instant matter have relied on the fact that while travelling they
were in work attire and groomed as required by employer policy; that they were
transporting employer issued equipment with them, which they had to keep safe
and secure; that they continued to be subject to employer policies and protocols;
and potentially may have to give rides to co-workers. The Board has held that
these general responsibilities and obligations inherent to their positions at all times
are not sufficient in the absence of some actual work done using the equipment,
acting pursuant to a policy, or having some real duty with regard to passengers
(for example a correctional officer escorting an inmate). It is also clear that on
occasions when FXT Investigators perform actual duties while travelling, they are
paid regular wages for that period of time. The fact that some actual duties were
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performed during travel does not entitle the investigator for wages for the duration
of the entire travel time.
[19] The outcome of any travel time / work grievance will always turn on the particular
evidence in the case. On an application of the arbitral jurisprudence, I conclude
that the non-investigation travels the two union witnesses undertook in the
examples they relied on were properly treated by the employer as travel time under
article 14. There was no breach of the collective agreement. Therefore the
grievances as they relate to FXT Investigators are dismissed.
[20] The group grievances were also signed by some full-time SIU Investigators, and
one Affected Persons Coordinator. Both witnesses the union called were As
Needed FXT Investigators, who had never worked as Full-Time Investigator or
Affected Persons Coordinator. Employer counsel pointed out that the duties and
responsibilities and terms of employment of full-time Investigators are very
different from those of FXT Investigators and Affected Persons Coordinators.
Union counsel made no submissions on this issue. I agree with employer
counsel’s position. There is simply no evidence or factual basis to substantiate a
violation of any right of the Full-Time Investigators or the Affected Persons
Coordinator. Therefore, their grievances are also dismissed.
[21] In conclusion, all of the group grievances in this proceeding are dismissed. Given
that outcome, it is not necessary for the Board to deal with any of the motions
argued by the parties.
Dated at Toronto, Ontario this 19th day of April, 2022.
“Nimal Dissanayake”
________________________
Nimal Dissanayake, Arbitrator