HomeMy WebLinkAboutThomas Group 22-05-24
IN THE MATTER OF AN ARBITRATION
BETWEEN:
THE COUNTY OF GREY (GREY COUNTY SOCIAL SERVICES)
(THE EMPLOYER)
AND
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
(THE UNION)
GROUP GRIEVANCE – THOMAS ET AL
BEFORE: S.L. STEWART – ARBITRATOR
FOR THE UNION: J. AMARAL, COUNSEL
FOR THE EMPLOYER: A. MOVRIN, COUNSEL
THE HEARING IN THIS MATTER WAS HELD BY VIDEOCONFERENCE
ON April 14, 2022
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AWARD
1. The grievance before me relates to a claim for payment at time and
one-half for three full-time paramedics in connection with four shifts
worked in January, 2021. The issue is whether there had been a change
to their shift schedules that triggered premium payment pursuant to
Article 13.08 of the Collective Agreement. There was no objection to my
jurisdiction to hear and determine the grievance. The parties were able to
expedite this proceeding by agreeing to the following:
PARTIAL AGREED STATEMENT OF FACTS
A. BACKGROUND
1. This matter is regarding one (1) Group Grievance – OPSEU File No.
2021-0250-0002. A copy of the grievance is attached at Tab 1.
2. The Employer and the Union are parties to a Collective Agreement
with a term of January 1, 2018 to December 31, 2020. The
Collective Agreement recognizes the Union as the bargaining agent
for all paramedics employed by the Employer, save and except
those employed in a managerial or confidential capacity in matters
related to Labour Relations. A copy of the Collective Agreement is
attached at Tab 2.
3. The grievors in this case are (hereinafter collectively referred to as
the “Grievors”):
(a) Jeff Thomas, a full-time paramedic;
(b) Nathan Gonder, a full-time paramedic; and
(c) Jennifer Taylor, a full-time paramedic.
4. The Grievors allege that the Employer violated Article 13.08 of the
Collective Agreement “by refusing [to] pay a rate of time and one
half for the hours worked during the Owen Sound 0900-2100 shift
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on the days of Jan 4, 5, 6, and 7 2021 where 4 working days notice
of change to the posted scheduled was not provided”.
5. For greater certainty, it is the Union’s position that the Employer
did not provide four (4) working days of notice to the Grievors when
it changed the Grievors’ schedules for the period of January 4-7,
2021. It is the Union’s position that in accordance with Article
13.08 of the Collective Agreement, the Grievors were entitled to
receive payment for time and one half (1½) their basic rate for all
work they performed within the required notice period (January 4-
7, 2021).
B. EMPLOYER OPERATIONS AND DEPLOYMENT STRATEGY
6. The Employer’s management rights under the Collective Agreement
can be found at Article 4.01, which provides:
The parties hereto acknowledge that it is the exclusive right
of the Employer, subject to and in accordance with the terms
of this Agreement to:
a) maintain order, discipline and efficiency;
b) hire, direct, classify, transfer, promote, discharge,
suspended or other discipline employees for just and proper
cause;
c) Determine in the interest of efficient operation and the
highest standard of service, the hours of work, work
assignment, work scheduled and methods of doing work;
d) Determine the number of personnel required, in the
services to be performed and the methods, procedures and
equipment to be used in connection therewith;
e) To operate and manage the undertakings of the
Department and without restricting the generality of the
foregoing, to select, install, and require the operation of any
equipment, plant and machinery necessary for the efficient
and economical carrying out of the operations and
undertakings of the Department.
7. The Employer has 8 bases located throughout the County of Grey.
8. As part of the Employer’s management rights listed above, the
Employer determines the deployment of units and staff at its bases
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in order to carry out the operations and undertakings of the
paramedic department (the “Department”).
9. The Employer’s strategy for the deployment of units and utilization
of staff is outlined in the Department’s Deployment and Utilization
Strategy (the “Deployment Strategy”). A copy of the Department’s
current Deployment Strategy is attached at Tab 3.
10. Attached at Appendix “A” of the Deployment Strategy is “Grey
County’s Emergency Coverage Policy” (the “2020 Coverage
Policy”). A copy of the 2020 Coverage Policy is attached at Tab 4.
11. The 2020 Coverage Policy provided, inter alia, an outline of the
deployment of units and staff at each Department base. The 2020
Coverage Policy also identified the start and end times for each
shift that was covering that particular base.
12. The 2020 Coverage Policy identified that the Owen Sound base had
2 Patient Transfer Units (“PTU”) and 1 First Response Unit (“FRU”).
The FRU was scheduled for coverage between 09:00-21:00 hours,
and the PTUs were scheduled for coverage from 00:00-23:59 hours
and 06:00-18:00 hours respectively:
C. SCHEDULING AND POSTING
13. “Article 13 – HOURS OF WORK” of the Collective Agreement sets
out various provisions regarding the scheduling of work for
bargaining unit members.
14. Article 13.08 states:
The schedule of hours and days of work of each full time
employee shall be posted in an appropriate place at least
four (4) weeks in advance. Once posted, the shift schedule
shall not be changed without the knowledge of the employee.
Where four (4) working days of such notice is not given, the
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employee shall receive payment of time and one half (1½) the
employee’s basic rate for all work performed within the
required period of notice.
The regularly scheduled hours and days of work of each part
time employee shall be posted in an appropriate place at
least 4 (four) weeks in advance.
15. At the material times, the Employer used StaffScheduleCare
(“SSC”), a management and scheduling software, to organize and
post shift schedules for bargaining unit members.
16. All of the Grievors were trained and familiar with SSC and knew
how to access it and view posted shift schedules.
17. At the material times, the SSC automatically sent a copy of the
schedule to bargaining unit members at 08:00 every day.
18. It is the Union’s position that the Employer has historically told
bargaining unit members that the schedule on the SSC is the
official schedule and when there is a discrepancy between the SSC
and some other source of information (e.g., verbal discussion, etc.),
the SSC schedule should be followed. For greater certainty, the
Employer does not agree with the Union’s position or the facts
stated therein.
19. On December 4, 2020, the Employer posted and circulated the
schedule for January 01, 2021 to January 14, 2021 in accordance
with Article 13.08 (the “Posted Schedule”). A copy of the email
notifying all Department staff of the posted scheduled is attached
at Tab 5.
20. The Posted Schedule indicated that the Grievors were scheduled to
work the following shifts between January 4-7, 2021:
(a) Jeff Thomas: Owen Sound PTU from 06:00-18:00 hours on
January 4 and 5, 2021;
(b) Nathan Gonder: Owen Sound PTU from 06:00-18:00 hours
on January 6 and 7, 2021; and
(c) Jennifer Taylor: Owen Sound PTU from 06:00-18:00 hours
on January 6 and 7, 2021.
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D. DEPLOYMENT AND START TIME CHANGES
21. In around October of 2020, the Employer recognized a need to
restructure its 2020 Coverage Policy in order to ensure operations
and coverage were utilised most efficiently and supported faster
response time for emergency calls.
22. The Employer created a Deployment Committee to discuss the
contemplated changes in coverage. The Deployment Committee
included two bargaining unit members: Derek Stephenson and
Mike Laroque.
23. After consultation with the Deployment Committee, the Employer
determined that the following changes to the 2020 Coverage Policy
ought to be made to achieve the identified objectives:
(a) move 1 FRU to the Markdale base and continue with the
shift time of 09:00-21:00 hours;
(b) change the Chatsworth PTU shift time from 12:00-24:00
hours to 07:00-19:00 hours; and
(c) change the Owen Sound PTU shift time from 06:00-18:00
hours to 09:00-21:00 hours.
24. On October 14, 2020, representatives from both parties met at a
Labour Management Meeting and discussed the proposed
deployment changes. A copy of the minutes from the meeting are
attached at Tab 6.
25. On November 16, 2020, Jeff Adams, an Operations Manager of the
Employer, met with three bargaining unit members to further
discuss the deployment changes, Bradi Watson, Derek Stephenson
and Jeff Thomas (one of the grievors).
(a) The Union states that it took the position that the 06:00
start time was more appropriate. For greater certainty, the
Employer does not agree with the Union’s position or the
facts stated therein, and states that the Union only
articulated that it preferred the 06:00-18:00 schedule not
that it was more appropriate.
26. On November 20, 2020, Mr. Adams sent a communication to all
Department staff updating them about the official start date for the
time and station changes to the 2020 Coverage Policy, effective
January 4, 2021. A copy of this email communication is attached
at Tab 7.
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27. On December 18, 2020, Mr. Adams sent a communication to all
Department staff enclosing the updated Coverage Policy, dated
December 17, 2020 (the “2021 Coverage Policy”), and further
notified staff of the upcoming changes to start times, etc. A copy of
this email and the enclosed attachments are at Tab 8.
28. Despite the above communications, the Grievors’ schedules on the
SSC showed a shift time from 06:00-18:00 hours (not 09:00-21:00
hours).
29. The schedules sent to the Grievors automatically at 08:00 each
day also showed a shift time of 06:00-18:00 hours (not 09:00-
21:00 hours). See for example, the automatic schedule received by
Jeff Thomas on December 17, 2020 attached at Tab 9.
30. On January 3, 2021, Jeff Thomas called Mark Urquhart, the
Employer’s Paramedic Duty Supervisor, at approximately 9:28 a.m.
and advised Mr. Urquhart that the Owen Sound PTU shift start
time still showed 06:00-18:00 hours on SSC. Mr. Thomas asked
Mr. Urquhart which schedule was correct given that his scheduled
start time for January 4, 2021 was 06:00 hours as indicated on
SSC and the daily email blast.
31. After speaking with Mr. Thomas, Mr. Urquhart notified Mr. Adams
that the SSC schedule did not reflect all of the schedule changes
for the 2021 Coverage Policy.
32. On that same day at 10:30 a.m., Mr. Adams sent a subsequent
reminder to all Department staff about the changes to deployment
and shift time changes, including the Owen Sound shift change to
09:00-21:00 hours, and again enclosed a copy of the 2021
Coverage Policy. A copy of this email and the enclosed attachments
are at Tab 10.
33. Later that afternoon at 2:27 p.m., Mr. Urquhart responded to Mr.
Thomas thanking Mr. Thomas for his “call today to identify that
the [06:00 to 18:00 hours] on SSC has not been updated to the
[09:00 to 21:00 hours]”, and confirmed Mr. Thomas’ start time for
January 4, 2021. Mr. Urquhart advised Mr. Thomas that the
deployment changes should be reflected in SSC after the
Christmas Holiday period.
34. On January 4, 2021, Mr. Thomas subsequently responded to Mr.
Urquhart seeking confirmation that he would be paid at the
overtime rate for his shifts on January 4th and 5th “due to notice of
less than 4 days of a change to the posted schedule”.
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35. On January 6, 2021, Mr. Adams responded to Mr. Thomas’ email
and advised Mr. Thomas that the notification of the schedule
changes was provided in advance of 4 days. Therefore, no amounts
for overtime rates would be paid, as requested. Attached at Tab 11
is a copy of the email exchange between Mr. Thomas, Mr. Urquhart
and Mr. Adams between January 3-6, 2021.
36. All of the Grievors reported to their shifts between January 4-7,
2021 in accordance with the 2021 Coverage Policy notwithstanding
the fact that the Posted Schedule was not updated in SSC.
37. The parties acknowledge and agree that the Posted Schedule was
not updated in SSC to reflect the changes to the Owen Sound PTU
start times as outlined in the 2021 Coverage Policy.
38. The parties also acknowledge that the automatic email sent at
08:00 daily did not reflect the changes to the start time.
39. The parties acknowledge and agree that the Posted Schedule was
updated in SSC to reflect the time changes in Chatsworth.
40. The parties acknowledge and agree that there had been technical
issues/limitations and/or human errors with posted schedules on
SSC in the past, resulting in confusion and payment of premium
pay under Article 13.08 of the Collective Agreement. The parties
also acknowledge and agree that, historically, if there were
discrepancies between SSC and other shift schedule times, the
Employer’s practice would be to communicate the correct schedule
time to the affected employees. The parties disagree over whether
that occurred in this case.
2. In addition to the foregoing facts, reference was made to an email
message dated October 28, 2020, wherein Mr. Adams advised all EMS
staff that the Employer was “implementing deployment changes”, with
the planned implementation date of January 5 (the first pay period) of
the new year.
3. In support of its position, the Union relied on excerpts from Brown &
Beatty, Canadian Labour Arbitration, which addressed principles of
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contract interpretation, as well as General Hospital Corp. & NAPE (1992),
29 L.A.C. (4th) 298 (Oakley) and Ontario Power Generation & Society of
United Professionals (Costache) (2019), 314 L.A.C. (4th) 298 (Burkett).
The Employer relied on an excerpt from Brown and Beatty, supra, that
addressed management’s presumptive right to establish working times.
In addition, the Employer referred me to Aluma-Systems Inc. & LIUNA,
Local 506 (2014), 248 L.A.C. (4th) 80 (Nyman), Ontario Power Generation
& Society of Energy Professionals (OPGN-2012-6013/1772, 116 CLAS
258, 2013 CarswellOnt 14216 (Surdykowski), Golden Giant Mine &
USWA, Local 9364, 78 CLAS 39, 2004 CarswellOnt (Marcotte) 9937 and
Ontario Power Generation and Power Workers’ Union (KS) 2020
CarswellOnt 208 (Albertyn).
4. In his submissions, Mr. Amaral emphasized that notwithstanding any
communication about the forthcoming change in hours to be
implemented in January, 2021, the schedule that was posted on
December 4, 2020, showed the original hours of work in place for the
grievors for the period in issue. The SSC retained the original hours of
work for Owen Sound, the location where the grievors were deployed,
although the hours in Chatsworth were changed. The grievors received a
daily message confirming those original hours in their location. Those
messages continued following the December 18, 2021, communication
referred to in paragraph 27 of the Partial Agreed Statement of Facts. With
respect to that communication which attached the 2021 coverage policy,
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Mr. Amaral noted that there was no reference to the actual times in the
covering message. He submitted that it was not reasonable to consider a
reference in the 24 pages of attachments to constitute notice of change to
the posted schedule. Mr. Amaral emphasized that in any event the SSC
and the daily communication of the schedule contradicted this
communication and provided a schedule consistent with the original
December 4, 2020, posted schedule for Owen Sound. He argued that any
ambiguity must be resolved in favor of the affected employees in these
circumstances. Accordingly, he submitted that on January 3, 2021, there
was a change to the schedule contemplated by Article 13.08 of the
Collective Agreement and, in accordance with that provision, the grievors
were entitled to premium payment for shifts within the next four days.
5. In his submissions, Mr. Movrin emphasized that the change that was
implemented here was a proper exercise of management rights. He noted
that there had been a good deal of discussion about the forthcoming
change to be implemented in January, 2021. While the schedule sent to
all EMS staff on December 4, 2020, did not reflect the change to the start
time, he submitted that the December 18, 2020, email provided sufficient
notice of the change as contemplated by Article 13.08. He emphasized
that the email refers to “the upcoming changes to start times” and there
is reference to the attachments where the changes are specified. Mr.
Movrin acknowledged that in an ideal world the SSC and daily reminders
would have been updated. However, he argued that this “error” should
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not compel me to reject the conclusion that the schedule was changed on
December 18, 2020, giving notice in excess of the 4 days contemplated
by Article 13.08. He noted that no one was inconvenienced, which is the
purpose of this provision, because the matter was clarified in advance of
the first day of the new schedule. Mr. Movrin also emphasized that the
January 3, 2021, email confirming the change in response to the inquiry
uses the word “reminder”, which, in his submission, was consistent with
the fact that notice of the schedule change had previously been provided.
He urged me to reject what he characterized as a “technical” argument
and to rule in favour of the Employer.
6. There can be no question that the Employer had the right to establish
working times and that the ability to make the change to working times
in this instance falls within the valid exercise of its management rights.
As well, the Employer certainly demonstrated best employment relations
practices in connection with consultation on changes. While
inconvenience was avoided, the issue is whether the circumstances
triggered the operation of Article 13.08. I agree with Mr. Movrin that in
accordance with the decisions in Golden Giant Mine, supra, Ontario
Power Generation (Surdykowski), supra, and Ontario Power Generation
(Albertyn), supra, entitlement to a financial benefit must be based on
clear language. I also agree with the authorities relied on by both Union
and Employer counsel to the effect that meaning must be given to the
language of the Collective Agreement. That is the essential function of the
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arbitrator. The bargain reached by the parties, as reflected in the
language that they have chosen, must be the basis for interpretation and
in the absence of unusual exceptions, it is that, and that alone, that
properly compels the result.
7. I commence by observing that clear communication as to expectations
for attendance at work is a critical matter. From the employer’s
perspective, it is necessary to ensure that its operations are staffed, a
matter that is particularly imperative in this instance, given the nature of
the services that are provided. From the employee’s perspective, certainty
as to their schedule allows the planning of other responsibilities as well
as their personal lives. In this instance, the Employer has an obligation
to establish a schedule and provide notice of it, while the employees have
the responsibility to attend at work in accordance with that schedule,
with a premium associated with a change in schedule that is in close
proximity to the days to be worked. That is the essence of the bargain
between the parties.
8. Applying the facts of this case to the language of Article 13.08, it is
clear that the December 4, 2020 schedule was the posted schedule that
is contemplated by the first sentence of that provision. The question to be
determined is when there was notice, providing “knowledge” of the
change to the schedule. I agree with Mr. Movrin’s argument that the
communication of December 18, 2020 constitutes notice of a change of
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schedule. As Mr. Amaral noted, specific times are not referred to in the
covering message. However, in the context of earlier communications, the
reference in that covering message to “the upcoming changes to start
times” and “the updated deployment plan” that points to the inclusion of
attachments that include a chart with the new start time on the first
page of the first attachment, it is my view that notice of the change of
schedule was provided. While the totality of the attachment to the email
was lengthy, I am unable to accept Mr. Amaral’s suggestion that there
was a lack of clarity such this communication cannot constitute proper
notice. Accordingly, I conclude that as of December 18, 2020, employees
had proper notice of a change of schedule in advance of the date that
would have triggered the application of Article 13.08 and the obligation to
pay the premium.
9. However, the matter does not end here. The next question that I must
address is whether the subsequent daily communication of the schedule
and the SSC schedule showing the original 0600 start time at Owen
Sound constituted a further change in the schedule that was only
rectified on January 3, 2021, within the period that attracted premium
pay for the relevant days in January. It is apparent that this was an
unintentional error, unknown to the Employer, and associated with the
scheduling software. As noted in paragraph 40 of the Partial Agreed
Statement of Facts, such errors had previously arisen in connection with
SSC, had created confusion and had resulted in the payment of premium
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pay. There is some force to Mr. Movrin’s argument that the knowledge of
the grievors did not change. However, in the context of a consistently
repeated contradiction of the December 18, 2020 notice in SSC, with
daily reminders over a number of days that accorded with the original
December 4, 2021 posted schedule, I am compelled to agree with Mr.
Amaral that there was ambiguity created here and that this ambiguity
must be resolved in favour of the grievors. In the circumstances it is my
conclusion that these subsequent communications are fairly viewed as
constituting notice of a further schedule change or a reversion to the
earlier schedule. Accordingly, the knowledge contemplated under Article
13.08 can only be imputed when clarification of the ambiguity was
ultimately received, which was on January 3, 2021.
10. In accordance with the foregoing, it is my conclusion that there has
been a breach of Article 13.08 the Collective Agreement resulting from
the failure to pay premium pay in this instance and I so declare. The
grievors are to be compensated accordingly. I retain jurisdiction in the
event that the parties experience any difficulties in the implementation of
this award.
Dated at Toronto, this 24th day of May, 2022
“S.L. Stewart”
_______________________
S.L. Stewart - Arbitrator