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HomeMy WebLinkAboutUnion 22-10-03IN THE MATTER OF AN ARBITRATION BETWEEN: COMMUNITY LIVING MISSISSAUGA (the “Employer”) -AND- ONTARIO PUBLIC SERVICE EMPLOYEES UNION AND ITS LOCAL 251 (the “Union”) JANICE JOHNSTON - SOLE ARBITRATOR IN THE MATTER OF A UNION POLICY GRIEVANCE APPEARANCES: For the Employer: Dirk Van de Kamer Counsel Keith Tansley Executive Director For the Union: Christopher Bryden Counsel Evelyn Mweene Union President A video conference hearing on this matter was held on September 22, 2022 AWARD 1. Community Living Mississauga (“CLM” or the “Employer”) is a non-profit, charitable organization that provides support and services and promotes opportunities for personal growth to people who have an intellectual disability within their community. Its mission is to provide support to people who have an intellectual disability to ensure their quality of life in the community is meaningfully improved. 2. The facts in this case are not in dispute nor are they complex. In September 2021, pursuant to a directive from the Office of the Chief Medical Officer of Health and the Ministry of Children, Community and Social Services (“MCCSS”), the Employer put in place a policy requiring all employees who were not fully vaccinated to do a COVID-19 test once per week. The policy provided that the Employer would pay for the test but that the individual employees were required to take the test on their own time. 3. Counsel for the Union stated that the question before me was, “Should employees be compensated for time spent completing these tests.” He suggested that the answer was yes as the Employer had imposed the completion of the tests as a condition of employment. As it was an Employer imposed obligation, employees should be compensated for their time. In other words, if an employee has to spend time doing something that the Employer demands that they do, it is Employer time and the employee should be compensated. 4. Counsel for the Union indicated that the Union did not challenge the policy or the need for testing. The only issue before me was whether or not employees should be compensated for the time spent completing the tests. 5. There was one other issue that the parties agreed may possibly need to come back before me. The policy put in place by the Employer with regard to testing, mentioned that testing should be done at the Shoppers Drug Mart location 2 at 6975 Meadowvale Town Centre Circle, Mississauga. Union counsel suggested that although he did not have any particulars at this time, it may be that there could be an issue with regard to the time spent by employees travelling to and from this location for testing. Accordingly, the Union shall have sixty days from the date of this decision to provide to the Employer any and all particulars with regard to employees it wishes to pursue a claim for travel time for. In the event that the parties cannot resolve the issue I shall remain specifically seized. 6. In support of his position counsel for the Union relied upon: Steinberg Inc. v. U.F.C.W., Local 486 1985 CarswellOnt 2634, [1985] O.L.A.A. No. 5, 20 L.A.C. (3d) 289; Markham Stouffville Hospital v. C.U.P.E., Local 3651 2007 CarswellOnt 8024, 167 L.A.C. (4th) 425, 91 C.L.A.S. 334; Oxford (County) v. C.U.P.E., Local Sub-Unit 1146 2003 CarswellOnt 9592, [2003] O.L.A.A. No. 368, 117 L.A.C. (4th) 215, 73 C.L.A.S. 315. 7. Counsel for the Employer pointed out that this is not the first time that this issue has arisen. Arbitrators have made a fairly consistent distinction between the cost of the test, which has been seen as the Employer’s responsibility, and the time it takes to do the test, which has been seen as something that employees should do on their own time. In the case before me, counsel stressed that there is an even stronger argument for employees testing on their own time, as the Employer in this case is merely acting as a conduit for a decision that was made by the MCCSS. He pointed out that although his client did not receive any additional funding for the testing, CLM nevertheless agreed to pay for it. CLM also has not received any additional funding for additional compensation for the time employees may spend taking the tests. There is clearly no violation of the collective agreement in this case and none has been alleged. 3 8. Employer counsel suggested that there was nothing unreasonable about employees having to take the test on their own time. The employees who were required to test at the relevant time, were those individuals who for their own reasons had chosen to either not get vaccinated, or to not get fully vaccinated. He repeated that the decision to require testing did not come from CLM but from the MCCSS. This group of employees who chose not to get vaccinated chose to remain at higher risk. Counsel stressed that an employee is not engaged in work when performing a test but merely complying with a government directive which is intended to save lives. CLM could have said if you are not vaccinated you cannot work, but in an attempt to strike a balance, employees were allowed to work provided that the test the employer paid for and employees took on their own time indicated a negative result. 9. In support of his position, counsel referred to four very recent cases which were directly on point: Ontario Power Generation and Power Workers Union (OPG-P- 185), Re 2021 CarswellOnt 18220, 151 C.L.A.S. 46; Algoma Steel Inc. and USW, Local 2724 (22-001), Re 2022 CarswellOnt 1287, 150 C.L.A.S. 262; Hydro One Inc. and Power Workers’ Union, a decision of Arbitrator Stout dated November 22, 2021; and Finning (Canada) and IAMAW, Vancouver Lodge 692 (COVID-19 Vaccination Disclosure Policy), Re 2022 CarswellBC 838, 2022 C.L.A.S. 142, 338 L.A.C. (4th) 209. 10. The parties agreed that the time frame before me was a very narrow one, namely, September 2021 to November 2021. After that time, the situation changed with regard to employees who were not fully vaccinated, but that issue is not before me. In addition, the testing requirements changed in January 2022 with regard to employees who were fully vaccinated. At that time all frontline employees were required to test twice a week and commencing April 2022, they were required to test three times a week. But again, that particular issue is not 4 before me and the parties are proceeding today without prejudice to how the union may choose to address that issue. Decision 11. I have carefully reviewed the jurisprudence referred to by the parties. The cases referred to by Union counsel were not really on point as they dealt with situations involving either call-back, attending a “gathering” on company premises of two hours duration, or travel time for attending a training course. However, the four cases provided to me by Employer counsel deal with the issue of payment for the test and the time to take the test. They are unanimous in reaching the conclusion that Employers should pay for the test but that employees should take the test on their own time. In this case, the issue of who pays for the test has been resolved as CLM is paying. The only issue is whether or not employees should be compensated for the time it takes to perform the test. 12. In the case before me, during the relevant time frame, employees were asked to perform one test per week. It is not disputed that the time involved in performing such a test is minimal. I think it is safe to note that we have all taken COVID-19 tests and other than waiting for the results to become apparent, they can be performed in a matter of minutes. Accordingly, I see no reason to depart from what appears to be a clear pattern in the jurisprudence and conclude that in the circumstances, it is not appropriate to compensate employees for the short period of time required to complete the test. I agree with Employer counsel that this conclusion is reinforced by the fact that the decision to require a test did not come merely from the Employer, but was a government directive. 13. As I noted earlier, there could be an issue with regard to the time spent by employees who travelled to and from the Shoppers Drug Mart located at 6975 5 Meadowvale Town Centre Circle, Mississauga for testing. As I indicated, the Union shall have sixty days from the date of this decision to provide to the Employer any and all particulars with regard to employees it wishes to pursue a claim for travel time for. In the event that the parties cannot resolve the issue I shall remain seized. 14. Therefore, other than for the one possible outstanding issue the grievance is dismissed. Dated in Toronto this 3rd day of October, 2022 Janice Johnston Arbitrator