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HomeMy WebLinkAbout1990-2198.Bauder et al.93-12-07 ONTARIO CROWN EMPLOYEES EMPLOYES DE LA COURONNE DE L'ONTARIO 1111 GRIEVANCE SETTLEMENT BOARD COMMISSION DE REGLEMENT DES GRIEFS \i.bnM1 ~~ ~ 0100,[ "13 180 DUNDAS STREET WEST. SUITE 2100, TORONTO, ONTARIO. Msa IZ8 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO [ONTARIO). M50 lZ8 TELEPHONE/TELEPHONE.' [416) 326- 1388 FACSIMILE/TELI~COPIE.. (416) 326-1396 2198/90 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Bauder et al) Grievor - and - The Crown in Right of Ontario (Ministry of Health) Employer BEFORE O. Gray J. Carruthers M. O'Toole Vice-Chairperson Member Member FOR THE GRIEVOR M. McKinnon/P. Munt-Madill Counsel Ryder, Whitaker, Wright & Chapman Barristers & Solicitors FOR THE EMPLOYER W. Kenny Counsel HiCkS, Morley, Hamilton, stewart, storie Barristers & Solicitors HEARING February 16, 19, 1993 May 21, 1993 AWARD When they filed their grievances in October of 1990, the ten grievors were all Programmer Analysts or Senior Programmer Analysts employed by the Ministry of Health in Kingston. They each worked in either the Claims Section or the Registration Section of the User Support Branch of the Ministry's Information Systems Division, writing and maintaining computer programs used in processing ORIP claims or in keeping track of eligibility for ORIP and drug benefits. These programs are run on a computer or computers at the Kingston Regional Computer Centre ("KRCC"). Members of each section were required to be "on call" (as the employer describes it) for a week at a time, on a rotating basis, to deal with problems which might arise in the running of programs outside of their regular work hours. For ease of reference, we will refer to. this duty as "after hours support duty." When subject to this duty, the grievors were paid for their hours away from work in accordance with Article 16 of the collective agreement which was in effect from January 1, 1989 to December 31, 1991. That article provided as follows: ARTICLE 16 - ON-CALL DUTY 16.1 "On-call duty" means a period of time that is not a regular working period. overtime period, stand.by period. or call.back period, during which an employee is required to be reasonably available for recall to work. 16.2 On.call duty shall be approved prior to the time the employee is required to be on call. 16.3 Where an employee is required to be on call he shall r:eceive twenty.five cents (25~) per hour for all hours such employee is assigned to on.call duty. The grievors say they should have been paid in accordance with Article 15, which then provided as follows: -2- ARTICLE 15 - STAND-BY TIME 15.1 "Stand-by time" means a period of time that is not a regular working period during which an employee keeps himself available for immediate recall to work. 15.2 Stand-by time shall be approved in writing and such approval shall be given prior to the time the employee is required to stand by except in circumstances beyond the Employer's control. 15.3 Where an employee is required to stand by for not more than the number of hours in his normal work day, he shall receive four (4) hours' pay at his basic hourly rate. 15.4 Where an employee is required to stand by for more than the number of hours in his nonnal work day, he shall receive payment of one-third (%) of the stand. by hours at one and one.half (1 Y2) times his basic hourly rate. The issue, then, is whether the grievors were IIrequired to be reasonably available for recall to work" or to keep themselves "available for immediate recall to work" when they were subject to this duty to provide after hours support. The grievors seek compensation for the period from Apri11989 to the filing of the grievances and, thereafter, to the present. The collective agreement which the parties adopted effective January 1, 1992 changed the language of Articles 15 and 16. The employer takes the position that the referral of these grievances to arbitration does not give the Board jurisdiction to deal with any alleged breach of that subsequent agreement. The parties agreed at the outset that we should deal first with the alleged breach of the collective agreement which was in effect when the grievances were filed, and remain seized with the question whether we have jurisdiction to deal with alleged breaches of the subsequent collective agreement and with any other issue which arises if we do have such jurisdiction. The employer says that any compensatory remedy should be limited to the 20 day period prior to the filing of the grievances. It also argued at the beginning of our hearing that we should not hear any evidence with respect to events subsequent to the -3- filing of the grievances. After hearing both parties' argument on this latter point, and without ruling on whether we have jurisdiction to remedy any breaches of article 15 which may have occurred after these grievances were filed, we concluded that we should first hear evidence and argument on just these two issues: whether the grievors Wel'e improperly paid in the period prior to the filing of the grievances and what portion of that period should be the subject of any compensatory remedy. We indicated that we would remain seised with any question relating to the period after the :filing of the grievances, as we were with questions relating to the period after December 31, 1991. Facts The computers on which the grievors' programs are run at KRCC are attended by computer operators. It is not clear from the evidence whether these are employees of the Ministry. In addition to the grievors, there is another group of Ministry employees involved in running these programs: Data Control Technicians, referred to in testimony as IIP.C. & S. people." "P.C. & S." stands for "Production Control and Scheduling." P.C. & S. people schedule and set up "jobs" - that is, they determine when each program will be run, what data it will be run on and what sort of data it will be instructed to generate. P.C. & S. people do not write programs, but do write the JCL ("Job Control Language") instructions to the computer on how to run a program. Employees of the Ministry of Health at various locations in Ontario use computer terminals to access and update claims and registration information Hon line" during office hours. Some of the programs written and maintained by the grievors are run on that information at night or on the weekend, so that the systems will be available "on line" the next business day. Ifprograms do not run as expected when scheduled, those -4- other Ministry employees may not be able to do their work or payments to health care professionals and pharmacists may be delayed. Prior to 1989, when operators at KRCC experienced difficulty running a program they called the programmer analyst scheduled to be available for this purpose. Sometimes the programmer analyst could resolve the problem over the telephone. Sometimes he or she bad to go to the workplace to resolve tbe problem. (It was also possible for the programmer analyst to access the KRCC computers over his or her residence telephone line using a remote terminal supplied by the employer. This option has both advantages and disadvantages. The terminal ties up the family telephone, and its may take longer to resolve a problem this way than it would if the employee simply attended at the workplace. Employees were not required to take these. terminals home, and some do not.) The duties of the programmer analysts when scheduled for this after-hours support duty were described in the Programmers' Manual applicable to the Claims and Registration Sections at the time: 0.0 ADMINISTRATION 0.1 General Administration Stuff 0.1.2 On-Call Responsibilities Senior members of the support group will be included in the on-call rotation. Rotation cycle will depend on the number of persons in the group that can handle emergency situations. Typically, one will rotate from 1st-call to 2nd-call to Off and then back to 1st call. The number of Off weeks will depend on the number of persons in the rotation. On-call rotations will typically go from the fIrst working day in a week to the start of the first work day the following week. On-call periods are 16:00 hrs to 08:00 hrs(l6 hours) on working days and 0:00 am to 24:00 hrs(24 hrs) on weekends. A total of 128 hours is usually claimed per rotation or $32.00 due to a generous 25 cents per on-call hour (Live it up folks!). 1be first on-call person is expected to carry a PAGER at all times when not at home. There should be no reason for KRCC to not be able to contact the fIrst call person. The -5- person must respond to a call within 10 minutes and be on.site if necessary within 45 minutes. The page on which these instructions appear is marked "Revised: 86/10/06." It was unchanged when these grievances were filed. A memo dated September 1, 1987 from the then supervisor of the Claims section to the Director of the Insurance Systems Branch included this paragraph: 2. On-Call procedures. The procedures have been reviewed with all members of the support group. Those in the on-call rotation have been informed that they must be available within 10 minutes of being called and be on-site within 45 minutes if necessary, from the time they are called. Unavailability for any reason is not acceptable. On-call individuals have also been informed that if they need to be away from home, they are to use the pager and also that they are to inform the data center [sic] as to when they will return. In the meantime, they are to call KRCC periodically to check progress. Copies of this memo were distributed to programmer analysts in the Claims section at the time. Although a new supervisor took over the Claims section around the beginning of 1989, there is no evidence that he ever rescinded the previous supervisor's instructions. Hans Witvoet, a programmer analyst in the Claims section, testified without contradiction that the response time referred to in the programmers' manual and in the September 1987 memo was a "Division wide" requirement. Mr. Witvoet testified about an occasion in December 1988. He had switched "on- eall" duty with another programmer analyst. Although that other person was to be on call, the record in the computer still showed that Mr. Witvoet was on call. A problem arose, and someone attempted to call Mr. Witvoet. He was not at home. They paged him. He did not have his pager, and did not respond. Subsequent calls to his home caught him about an hour later. He was at work one hour and thirty-five minutes after -6- the first attempt to contact him. Mterwards, he was given a warning of a disciplinary nature concerning his failure to respond to the on-call page. In early 1989 there was a change in procedure. The programmer analysts were told that henceforth the first person to be called by KRCC personnel in the event of an after-hours difficulty would be a P.C. & S. person. If that person could not resolve the problem, he or she would then call the programmer analyst who was "on call." Programmer analysts continued to be scheduled for "on call" duty as before. No-one told them that they were to be any less ready to return to work than they had been required to be prior to this change in procedure. In about April 1989, the programmer analysts learned that the P.C. & S. people. designated to receive after-hours calls were being paid on a "stand-by time" basis rather than 25~ per hour. The programmer analysts were concerned that they were not being paid on the same basis. Mr. Witvoet and one or two other programmers raised this concern directly with John Tromolin. Mr. Tromolin was the Manager of the User Support Branch at that time. The grievors' immediate supervisors reported to him. Mr. Tromolin expressed sympathy for the position of Mr. Witvoet and his fellow programmer analysts. He told Mr. Witvoet that he would raise the matter with his superiors. Mr. Witvoet followed up with Mr. Tromolin every two or three months thereafter. The first time, Mr. Tromolin told him that he had communicated with the Assistant Deputy :Minister and was awaiting a response. On subsequent occasions, he said he was still awaiting a response. On one of those subsequent occasions, Mr. Witvoet mentioned the possibility of a grievance. Mr. Tromolin asked him to hold off. Mr. Witvoet testified that these grievances were filed in October 1990 after Mr. Tromolin said he still had no answer to give. -7- Mr. \Vitvoet testified that his understanding of the response management expected of him while "on call" was as set out in the Programmer's Manual and the memo of September 1987. No-one said anything to change that understanding in early 1989 or at any time prior to the filing of the grievance. His understanding was that all Claims systems were critical systems. If one was not working, it had to be fixed right away. He did not understand that he had any judgment to exercise about whether to start dealing with the problem within the time frame specified in the programmers' manual. Jim Hansen is a Senior Programmer Analyst in the Registration Section. He testified that his understanding of the response management expected of him while lion call" was as set out in the Programmer's Manual. He had not seen the memo of September 1987. He acknowledged that he had occasionally taken longer than 45 . minutes to get back to work. Ordinarily, it is a half-hour's drive from his home to the workplace. In winter it has sometimes taken him an hour to get to work in response to a call. He acknowledged that he had not been disciplined, and had not heard of anyone else being disciplined, for not coming in within 45 minutes. He testified that he understood he could exercise judgment about whether a problem required an immediate response, and govern his response accordingly. Some problems can be left until the following day, and have been. But some systems were critical, he said; indeed, an increasing number were. If he did not respond immediately to a problem with a critical system, he expected that management would question his judgment. He had never failed to respond to a call. John Tromolin had told him that he would be subject to discipline if he failed to respond to a call. The only witness called by the employer was Bob Copeland, who was Manager of Production Services from April 1989 to June 1992. In that capacity he was in charge of the work of the "P.C. & S." people. He produced and identified a document which -8- was in effect in April 1989, describing the duties of the P.C. & S. person designated to receive calls outside of regular work hours. This is it: SCHEDULE FOR PRODUCTION CONTROL AND SCHEDULING First Call Technical Support For a period of two (2) weeks, an employee will be designated by the Supervisor of P.C. & S. to be available 24 hours/day, 7 days a week as first call technical support person, and this person will respond to a page within 15 minutes while on standby and within 45 minutes on call. The hours would be as follows: SUPPORT HOURS MON.FRI SAT.MON 10:00 NORMAL 18:00 PERIOD 18:00 STAND.BY 01: 15 PERIOD 01:15 SAT-MON ON-CALL 07:30 01:3007:30 PERIOD - STAND-BY HOURS ARE 7.25 HOURS PER DAY AS ASSIGNED BY THE SUPERVISOR OF PRODUCTION CONTROL AND SCHEDULING OR HIS DESIGNATE. - ON-CALL HOURS ARE THE HOURS NOT COVERED BY REGULAR OR STANDBY HOURS AS ASSIGNED TO AN INDIVIDUAL BY THE SUPERVISOR OF P.C. & S. OR HIS DESIGNATE . REMUNERATION FOR ON.LINE TIME AND ON-SITE TIME WILL REMAIN AS IS FOR ON.CALL HOURS. PER CALL / PROBLEM 1 HOUR MINIMUM IF OFFSITE RESOLUTION RE- QUIRED (DOES NOT APPLY TO STANDBY) PER CALL / PROBLEM RESOLUTION 4 @ 1.5 HOUR MINIMUM IF ON.SITE INVOLVEMENT REQUIRED This will become effective January 30, 1989. Mr. Copeland testified that he did not supervise programmers in 1989 and, so, had no discussions with them at that time about the effect on them of making a P.C. & S. -9- person the "First Call Technical Support" person. He said he thought the effect of this change would have been that the programmers would have fewer problems to deal with. As for the problems programmers were still needed to deal with, however, he said the change had not affected the urgency of having such problems solved. Was After Hours Support Duty 'On Call" Duty or "Stand-By" Duty? Articles 15 and 16 both provide that an employee will be compensated for any period during which he or she has been required to be ready to return to work. An employee earns the compensation specified by one of these articles by maintaining the required state of readiness to return to work. An employee's entitlement to compensation under these articles does not turn on whether or how often the employee is actually called upon to return to work, nor does the identification of the article under which compensation is to be calculated: Bouillon, 2002/86 (Fisher). These articles are not concerned with compensation for having to return to work. They are concerned with compensation for having to be ready to return to work. The rate of compensation payable to an employee who has been required to be ready to return to work depends on the state of readiness which the employer has required of him or her. An employee who has been required to keep him- or herself "available for immediate recall to work" is entitled to compensation at the rate specified by Article 15. This is so even if the need to respond with that degree of urgency does not actually arise while the employee is subject to that duty. It is so even if the need to respond with that degree of urgency may seldom arise, as in Walker and Taylor, 417/82 (Samuels). A requirement that the employee respond to calls "immediately" (Bouillon, supra) or "as quickly as possible" (Appelle, 147/78 (Swan)) or -10- be prepared to leave "at a moment's notice" (Walker and Taylor, supra) is clearly a requirement that the employee be "available for immediate recall to work." If the employer has only required that an employee be "reasonably available for recall to work", the employee will only be entitled to compensation at the rate specified by Article 16. This is so even if an employee on whom that lesser duty has been imposed chooses to respond to a call or calls by returning to work immediately or feels that an immediate response ought to be required. The employer's characterization of the duty it has imposed cannot be determina- tive of the compensation payable, as the Board observed in Walker and Taylor, 417/82 (Samuels) at page 13: While each of these cases turned on its own facts, there are some general conclusions which can be drawn from the jurisprudence. Firstly, the matter is not decided simply on the language which the Employer uses. Merely calling the pager system "on-call" does not make it an Article 16 situation. The question is what are the real requirements of the duty. Secondly, one gets at these real requirements by examining the circumstances of the job, and the written and verbal instructions to the employees. If the employer's instructions to an employee are clear, unambiguous and consistent, one looks to those instructions to determine which article applies. If the instructions are unclear, ambiguous or inconsistent (either internally or with the employer's conduct), the circumstances of the job will take on greater significance in determining how ready to return to work the employee has been required to be: see, .. for example, Apfelbeck, 1464/86 (Simmons). Considered in isolation from the context supplied by Articles 15 and 16, one might suppose that there was little difference between being "available for immediate recall to work" and being "reasonably available for recall to work." Jamieson, 162/77 -11- (prichard), appears to be the first award in which the Board considered the distinction created by these articles. In that case, the Board observed that Unfortunately little assistance on the proper interpretation of the respective scope of Articles 15 and 16 can be derived from dictionaries, arbitral authority or judicial authority. Indeed, case authority may serve to confuse rather than clarify the Articles in that in numerous situations "immediate" has been held to mean "within a reasonable time". (see, for example, Page v Pearce (1841) 8 M & W 677 at 678; 37 Halsbury's Laws (3rd edn.) 103). (See also Mongrain, 0939/86 (Slone) at page 3.) The Board in Jamieson also observed that the parties clearly intended the phrases to mean different things in their collective agreemen t: By providing both Article 15 and Article 16, the parties have indicated their in- tention to create two different statuses. To give the agreement integrity in its interpretation we must recognize that by creating the category of on-call duty, the parties must have intended to restrict the application of stand-by time in Article 15 to situations where there is little flexibility in the requirement that the employees be immediately available. The on-call duty provisions must then contemplate a relatively wide array of arrangements for ensuring that employees will be available for recall. There is a very substantial difference between the compensation provided under Article 15 for being on "standby time" and that provided under Article 16 for being "on call.JJ It seems reasonable to suppose that the parties thought that maintaining the state of readiness required by Article 15 was substantially more onerous than maintaining the state of readiness required by Article 16. In Jamieson, there was "flexibility" in how quickly an employee was expected to respond to a call. The grievors were maintenance electricians and plumbers. Each week, one employee in each trade was /lon callJJ outside of regular work hours. The standing written instructions to such employees were that they would be issued a pager, they were to keep the switchboard informed of a number at which they could be reached, and they had to return to work within two hours of a call. There was evidence -12- that in practice the employer's requirements were more flexible than these written instructions suggested. The Board made these observations concerning its conclusion that the duty was properly classified as "on call" duty under Article 16: Our hesitancy in reaching this conclusion has been caused by three factors. First, even in its most favourable light, the recall system instituted by the employer comes very close to the dividing line between stand-by and on-call. We consider the system to be relatively restrictive and that in substance it nearly amounts to requiring the employees to be immediately available for recall to work. At the same time, however, we recognize that any system of recall will necessarily involve an element of immediacy in the means of contact. The initial contact by telephone or pager will almost always be as soon as possible after the emergency or trouble arises; that is the very nature of a recall system. Therefore, the classification of the system must include a consideration of all the circumstances including the time allowed employees in responding. In this regard, we were also influenced by the fact that while the situations at the Centre requiring a call-back are deemed to be "emergencies", in many cases "trouble situations" might be a more accurate description. The second factor causing us to hesitate was the absence of evidence as to the working conditions of persons classified as on stand-by time while working at the Centre. While there was undisputed testimony by Mr. Bell that certain counsellors at the Centre receive stand-by pay, there was no evidence of what is required of these counsellors. Such evidence could readily be adduced by management to contrast it with the system in question in this case. While the failure to do so is not fatal to the employer in this case, it may well be in some future case. The third factor which caused us to hesitate in reaching our judgment was the disparity between the written memorandum of instructions and the oral evidence offered by Mr. Buller. We have accepted Mr. Buller's testimony that the system is more flexible than the memorandum may imply and that it has been a problem of communication between him and the employees which has led to their failure to understand the full range of flexibility available to them. However, it is important that we record the flexibility that Mr. Buller has testified to in that without it our conclusion would very likely have been different. Furthermore, if that flexibility is not available in future, we would expect that the outcome of a new grievance would very likely be different from this one. In particular, Mr. Buller has indicated that the two hour period need not be strictly enforced and that extensions of it up to three or three and one-half hours are possible if the employee informs the Centre's switchboard in advance of his location and his unavailability. Second, Mr. Buller indicated that contrary to his initial instructions, the employees are free to arrange to switch responsibility among themselves without prior authorization by Mr. Buller as long as the switchboard is informed of the switch. Third, some reasonable arrangement can be made regarding charges for long distance calls required to maintain the necessary degree of contact between the switchboard and the employee. Fourth, the pager is designed to assist the employee by maximizing his freedom of movement during his on.call periods but it need not necessarily be carried at all times as long as the employee makes some reasonable arrangements for ready contact with the Centre's switchboard. -13- In sum, Mr. Buller stressed the flexibility in the system and we have relied on this flexibility in reaching our decision. The award in Graham1 160/90 (Kennedy) illustrates another sort of "flexibility": flexibility as to whether the employee must respond to any particular call while subject to the duty in question. That case concerned a system of duty implemented to handle after-hours calls to the Health and Safety Division of the Ministry of Labour concerning workplace injuries1 work refusals and other matters with which the Division deals. The grievors were Health and Safety inspectors who would be assigned from time to time to be "reasonably available for after-hours calls." The system of duty contemplated that a manager would be available after hours. The manager would detennine1 with respect to each call, whether and how quickly an inspector should visit the site. The manager would then determine whether the inspector "on call" could respond to the call. If that inspector could not respond as quickly as the manager would like1 the manager was to seek out an inspector who could or1 failing that1 the manager was to respond him- or herself. Inspectors were told that1 apart from leaving a number where they could be reached1 they were not expected to restrict their activities in any way while subject to this duty. Inspectors who could not respond immediately were not subject to discipline. Circumstances in which the manager would have to make alternate arrangements included "Officer not at home; has company and has had alcoholic beverages or has personal business to attend to.'1 At one point the employer had defined "reasonably available" as able to leave for the site within one hour of being asked by the manager; it had later acknowledged that whether this was a reasonable requirement depended on the circumstances of the inspector at the time of the call. The Board found that this duty fell within Article 16. In doing so, it made these observations: The focus of the Union evidence was on the nature of the job of an Inspector and that, in the overall context, it was desirable that in all cases where attendance at a -14- scene was necessary, it should occur sooner rather than later. In general, Health and Safety Inspectors are both competent and conscientious in the handling of their duties, and they bring to the job a very high sense of personal responsibility. In substance, they all testified that, when called, they would in all circumstances set out as soon as they could, and I accept that that is the case. However, the issue on this arbitration is whether or not the management requirement is that the particular employee set out immediately, as is described in Article 15, or that he be reasonably available to go to work as set out in Article 16. Whatever the degree of sense of responsibility that each individual Inspector may feel, the determination of what is the appropriate and required response time is a function of management. If in management's opinion an immediate response is not called for, then it is quite open to management to implement the arrangements on the basis of a lesser degree of urgency and required response time. In substance, the job involved on this arbitration is to enforce health and safety legislation and regulations. Inspectors investigate workplace injuries and fatalities, work refusals and complaints involving health and safety in the workplace. Their function is to gather information and to report and to facilitate and mediate matters within the workplace. It is important to remember that they are not part of any front- line emergency response. These matters are looked after by the police, fIre and ambulance services, and the Inspector's role is related principally to the subsequent investigation. While it is self. evident that in an ideal world that investigation will start as soon as practicable, there is no obligation, statutory or otherwise, upon the Employer or the Inspector for immediacy in the start of that investigation. It is clear that, in a practical sense, it is indeed a rare occasion even during normal working hours that the response of the department is immediate. The Union evidence focused on the nature of the event that would trigger a call-out, and these events themselves may involve emergencies and tragic circumstances. However, it is not the nature of the event itself that dictates whether or not the matter falls under Article 15 or 16. It is the nature of the response required by the Employer that governs, and it is for the Employer to determine the level of response that is to be provided. On the totality of the evidence, there is not the urgency of response, either in theory or in practice, that is asserted by the Union. (emphasis added) This may be contrasted with the facts and result in Bedard, 1281/85. The grievors there were ambulance driver attendants and shift supervisors. The duty in question involved being ready to return to work between 8:00 p.m. and 8:00 a.m. if an emergency required deployment of an additional ambulance. Those who volunteered for this duty were expected to remain at home or inform the dispatcher of a number at which they could be reached or carry a pager provided by the employer. When called, such an employee was expected to be at the ambulance base within 15 minutes of receiving a call from the dispatcher. Despite evidence that someone who had -15- volunteered for this duty could withdraw from it at any time, even when he or she received a call, without fear of discipline, the Board found that the duty fell within the ambit of Article 15: We believe that a key consideration in this case, one which bears on, the circumstances of the job, is that the duties performed by the grievors relate to the protection and preservation of human life and physical wellbeing. In this respect they approximate more closely the duties of the grievors in Walker and Taylor who drove an opp Command Trailer used for emergencies such as trail derailments and airport disasters, than those of the grievors in Jamieson (plumbers and electricians) or in Novak and Humphrey (conservation officers). We agree with the suggestion of counsel for the Union that Articles 15 and 16 should be seen as describing a continuum which seeks to relate the relative immediacy of a required response to a call for some public service to the nature of the public interest that is threatened. Thus, where as here the service needed is directed at the protection of human life, the called for response is, and should be, immediate. To approach the matter this way is simply to echo what other panels of this Board in terpreting these articles have said, viz, that each case must be decided on its own facts. We donot entirety discount the relevance of "flexibility" , which was clearly a factor regarded as relevant by the Board in its decisions in Jamieson and in Novak and Humphrey. However, an examination of those cases indicates that the kind of flexibility there referred to was flexibility as to how quickly employees were expected to respond to a call. Thus, in Jamieson employees had up to 2 hours to respond to a call, time in which they could complete whatever task they were then engaged in (eg. shopping) before answering the call. In Novak and Humphrey the Board indicated there was some ambiguity in the instructions as to the speed with which employees were required to answer calls. None of that obtains here. The expected time for response here is so short that there is no flexibility in responding to a call. While it is true that the availability of a pager adds to the flexibility that officers enjoy in terms of permitting them to engage in other activities while they are "on-call" or on "stand-by", once the call comes in they must, of necessity, respond immediately. It is not apparent why the panel in Bedard discounted the evidence that employees subject to the duty in question could decline a call when they received one. Perhaps the panel disbelieved it. Perhaps they thought it was not an option that the affected employees could be expected to exercise in the face of an emergency. Perhaps they thought it was irrelevant for some other reason. -16- Someone who truly does not have to return to work immediately when asked to do so is certainly not on l'stand by" duty as defined by Article 15. If a call to return to work immediately is the only sort of call the employee is likely to receive, and the employee is entitled to refuse to return to work without fear of discipline. it is difficult to imagine how one would assess whether the employee had been "reasonably available for recall to work" when he refused such a call, unless the test for reasonableness in that context is simply whether the refusal was capricious. We do not need to worry through that problem here. however. In this case it is clear that the grievors were required to respond to any and every call they received, on pain of discipline. The issue here, then, is whether the required response time brings the duty within Article 15 or Article 16. Although we agree that this sort of assessment has to be made on a case by case basis, it is possible to make some general comments about what the phrases "available for immediate recall to work" and "reasonably available for recall to work" must imply in terms of response time. The first is that lIimmediate recall to work" in Article 15 cannot mean instantaneous return to work. There will be some response time associated with an lIimmediate recall to work" when the employee is not already at the workplace: at very least, the time reasonably necessary to dress for work and travel from home to the workplace. The second observation is that the IIreturn to work" contemplated by Article 16 is a return to work before the employee's next scheduled shift. Even when the only flexibility in "on call" duty is in the response time, a "reasonable" response time must be shorter than the interval between scheduled shifts. The third observation is that if the flexibility in lion call" duty is in response time and not in the obligation to respond to a call, the difference between the response time associated with that "on call" duty and the response time which would be expected -17- -17- the parties that the employer could avoid its obligations under Article 15 by adding a few minutes to the response time which would have been expected under that Article. Taking all these considerations into account, we are comfortable with the Board's initial instinct in Jamieson, supra, that requiring an employee to be at work within two hours of any call is very close to the line between the two kinds of duty. In addition to awards we have already mentioned, counsel for the employer referred to Ford, 1733/90 (Verity), in which a grievor in the same classification as the senior programmer analysts here was required to be "on call" to provide after hours support to operators of a computer system which dealt with welfare payments. In that case, the panel found that the duty to which the grievor was subject fell within Article 16. There, the employer had used the words "on call" to describe the duty. It. had told the employee it expected him to acknowledge a page promptly, but had never specified a time by which the employee was expected to be back at work. It is apparent that this last fact was critical to the panel's finding. The panel felt that a requirement to acknowledge a page promptly was not inconsistent with an expectation that the employee would only be reasonably available for return to work. Here, the employees had written instructions that they were to be available by telephone within 10 minutes and at the workplace, if necessary, within 45 minutes. Both in cross-examination of Messrs. Witvoet and Hansen and in argument, counsel for the employer suggested that changes in supervisors and the insertion of the P. C. & S. person into the problem response sequence somehow made a change in the requirements set out in the Programmers' Manual. The fact is that the manual, which existed for the apparent purpose of defining the programmers' employment obligations, was not changed. No present or former member of management was called to testify that he or she thought that changes in supervisors or the insertion of the P. C. & S. person into the problem response sequence had changed the obligations set out in the -18- manual nor, more importantly, that he or she had said this to the affected employees. The only member of management who did testify, the man who had been in charge of the P. C. & S. role in the provision of after hours support, said that the assumption of that role by P.C. & S. personnel had not reduced the urgency of the proble'ms which programmer analysts were still called upon to solve. In the circumstances, there was no reason for anyone to suppose that the employer's response time requirements had changed. It was not the employees' obligation to question the applicability of standing instmctions each time there was a change in management personnel or in the duties of other employees. We accept that the employer does not expect the programmer analysts to respond to every call by returning to work within 45 minutes. Its written instructions make it. clear that it does expect that response for some calls, however. Employees subject to this duty cannot anticipate when those sorts of calls will come. Accordingly, the duty requires them to be constantly ready to return to work within 45 minutes of a call. The employees were paid for after hours support duty at the rate prescribed by Article 16 for quite some time before Mr. Witvoet complained to Mr. Tromolin. Counsel for the employer argues that the grievors' failure to complain before then gives rise to an estoppel which must continue to the end of the term of the collective agreement then in effect (which is the end of the period addressed in this award). There could be no estoppel without reliance by the employer on a representation made by the union. An estoppel would continue to the end of the collective agreement's term only if the employer had relied on a union representation during the bargaining which led to that agreement. There is no evidence of any reliance by the employer during bargaining on the failure of the union to complain about the grievors' circumstances, nor that the union even knew of those circumstances. There is no estoppel here. -19- We are satisfied that between April 1989 and October 1990, inclusive, when these grievors were scheduled to be available to provide after hours support in accordance with the expectations communicated to them, and were not actually working, they were on "stand-by time" within the meaning of Article 15 of the collective agreement then in effect, and entitled to compensation in accordance with that article. The Timeliness Issue Article 27 of the subject collective agreement provides that an employee who believes that he has a complaint or difference arising out of the interpretation, application, administration or alleged contravention of the agreement "shall first discuss the complaint or difference with his supervisor within twenty (20) days of first becoming aware of the complaint or difference." It then provides that if the complaint is not satisfactorily settled by the supervisor within 7 days, it may be addressed through a process which begins with the filing of a written grievance within a further 10 days. Article 27.13 provides that if a grievance "is not processed within the time allowed or has not been processed by the employee or the Union within the time prescribed it shall be deemed to have been withdrawn." As we noted at the outset, the employer argues that the grievors should have no compensation for any "stand-by time" more than 20 days prior to the filing of their grievances. The union argues that they should have compensation for allllstand-by time" since April 1989, when Mr. Witvoet complained to Mr. Tromolin. This issue was argued by both parties as though the result for all grievors depended on the timing and content of Mr. Witvoet's discussions with Mr. Tromolin. We take this as implicit agreement that Mr. Witvoet was acting in a representative capacity, even though he was not then a shop steward. -20- The Board has held that a grievor's delay in filing a written grievance after raising its subject matter orally with management will not limit the recovery to which the grievor would otherwise have been entitled if, during the period of the delay, there was "at least a tacit understanding that the purpose of raising the issue was to avoid the need for a formal grievance", a management representative was actively involved in the employee's claim and there was a continued understanding that the claim had not been denied by management but was still being considered: Marshall, 1797/89 (Keller); Callendar, 2510/90 (Keller). The employer's argument focused primarily on Mr. Witvoet's acknowledgement in cross-examination that although he first made his complaint to Mr. Tromolin in April 1989, he may not have expressly mentioned the possibility of :filing grievances until about six months before these grievances were actually filed in October 1990. Article 27 does not require that an aggrieved employee use any particular form of words to express his or her complaint to a superior before :filing a formal grievance. When an employee has expressed to a superior the sort of complaint which could be the subject of a grievance, and the superior has told the employee that he or she will pursue it with upper management, it makes no labour relations sense to require the employee to then threaten that same superior with the :filing of a formal grievance in order to preserve his or her rights pending the outcome of the superior's efforts. We recognize that there is a distinction to be made between complaints which assert failure to satisfy existing rights and complaints which merely importune for the conferral of new rights. A sympathetic response to a complaint which only takes the latter form would probably not give rise to a tacit understanding that the purpose of raising the issue was to avoid the filing of a formal grievance. Here, Mr. Witvoet was clearly complaining that programmers required to answer after-hours calls ought to receive the "stand-by" pay which he had learned that P. C. & S. people with such -21- duties were given. Mr. Tromolin was not called to testify about what he understood about the nature and purpose of this complaint. Although Mr. Witvoet was asked whether and when he had used the word "grievance", it was not put to him that his complaint had not been expressed in such a way as to alert Mr. Tromolin to the possibility that a grievance would be filed if the grievors were not compensated under Article 15 for what the employer had been calling "on call" duty. In the circumstances, the employer cannot rely on its delay in answering the complaint Mr. Witvoet had made on the grievors' behalf to now deny them a remedy for the subject matter of that complaint. Although counsel initially agreed to defer issues relating to entitlement to "stand- by" pay for the period after these grievances were filed, in the end counsel did raise. and argue one such issue. Counsel for the employer argued that the employer's having denied the grievances once they were filed precluded any claim that after hours support duty assigned thereafter was of the sort contemplated by Article 15, because the denial put the grievors on notice that the employer only required the state of readiness contemplated by Article 16. We disagree. In the absence of a new statement of expectations different from those set out in the Programmer's Manual, a bald denial of the grievances only amounted to a reiteration of the employer's characterization of the previous requirements of the duty. If the employer did not also vary or rescind the response requirements expressed in the Programmer's Manual, then the grievors' entitlement to "stand-by" pay will have continued as before. Summary We find that during periods between April 1989 and October 1990, inclusive, when these grievors were scheduled to be available to provide after hours support and were not actually working, they were on "stand-by time" within the meaning of Article 15 -22- of the collective agreement then in effect, and entitled to be paid in accordance with that article. With respect to each such period, the employer is directed to pay each grievor the difference between what he or she ought to have received and what he or she actually received, together with interest. If the parties are unable to agree on the appropriate interest rate or any aspect of the calculation of this compensation, we will determine it. We also remain seised of the other issues identified at the beginning of this award. Dated at Toronto this 7th day of December, 1993. ~~ ~therS,]deDlber 1117 u)7~-, M. O'Toole, Member