HomeMy WebLinkAbout2008-3329.Couture et al.11-04-07 Decision
Commission de
Crown Employees
Grievance
UqJOHPHQWGHVJULHIV
Settlement Board
GHVHPSOR\pVGHOD
Couronne
Suite 600 Bureau 600
180 Dundas St. West 180, rue Dundas Ouest
Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8
Tel. (416) 326-1388 7pO
Fax (416) 326-1396 7pOpF
GSB#2008-3329
UNION#2008-0669-0004
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Couture et al)
Union
- and -
The Crown in Right of Ontario
(Ministry of Government Services)
Employer
BEFOREVice-Chair
Nimal Dissanayake
FOR THE UNION
Laura Johnson
Ontario Public Service Employees Union
Grievance Officer
FOR THE EMPLOYER
Omar Shahab
Ministry of Government Services
Labour Practice Group
Counsel
HEARINGMarch 23, 2010.
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Decision
[1]The Board is seized with grievances filed by Mr. Frank Couture, Mr. Colin Campbell and
Mr. Bentley Uyeda, wherein they allege that the employer failed to pay them stand-by
pay in accordance with article UN10 of the collective agreement while they were on an
after hours rotation. The parties advised at the commencement of the hearing that they
had agreed to add a grievance filed by Mr. Grant McMartin involving the identical issue.
It was also stated that Mr. Atul Ratra, who had also grieved, did not wish to proceed with
his grievance. Therefore, this decision is dispositive of the grievances filed by grievors
Couture, Campbell, Uyeda and McMartin.
[2] At the commencement of the hearing employer counsel made a motion that the Board
ought to dismiss the grievances on the basis that the particulars provided by the union do
not disclose a prima facie case for a violation of arWLFOH81+HUHLQDIWHU³SULPDIDFLH
PRWLRQ´
7KLVGHFLVLRQGHWHUPLQHVWKDWPRWLRQ
[3] Article UN 10 is as follows:
81³6WDQG%\WLPH´PHDQVDSHULod of time that is not a regular
working period during which an employee is required to keep
himself or herself:
.
(a) immediately available to receive a call to return to work, and
.
(b) immediately available to return to the workplace.
UN10.2 No employee shall be required to be on stand-by unless such
stand-by was authorized in writing by the supervisor prior to the
stand-by period, except in circumVWDQFHVEH\RQGWKH(PSOR\HU¶V
control.
UN10.3 Where stand-by is not previously authorized in writing, payment
as per UN10.4 shall only be made where the supervisor has
expressly advised the employee that stand-by duty is required.
UN10.4 When an employee is required to stand-by, he or she shall receive
payment of the stand-by hours at RQHKDOIò
KLVRUKHUEDVLF
hourly rate with minimum credit of four (4) hours pay at his or her
basic hourly rate.
[4] The written particulars of the union are as follows:
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1.The Grievors, Frank Couture, Colin Campbell, Bentley Uyeda, Atul Ratra are
employed as Level 6 Systems Officers and grievor McMartin as Level 5
System Officer in the Enterprise Email 6HUYLFHV³((6´
2SHUDWLRQVEUDQFKRI
the Ministry of Government6HUYLFHV³0*6´
7KHJULHYDQFHUHODWHVWRWKH
HPSOR\HU¶V((6³2Q&DOO6\VWHP´
2.The Grievors are responsible for maintaining and supporting the email system
for the Ontario Public Service. They maintain the servers for the email system,
conduct updates to the system and deal with any issues that may affect the
functioning of the email system. They also assist some members of the Ontario
3XEOLF6HUYLFH³236´
ZKHQWKH\Hxperience difficulties with the functioning
of their e-mail or their blackberries.
3.In total, there are 14 systems officers who work in EES operations. Seven of
these officers work in the North Bay office, and the other seven work from an
office in Toronto. All EES systems officers work steady day shifts.
4.In order to ensure that there are staff available to resolve problems with the
OPS e-mail system during non-business hours, the employer has established an
EES On-Call System. According to the On-Call System, the EES systems
officers are obliged as part of their jREGXWLHVWREHSDUWRIWKH³2Q&DOO´
rotation for two consecutive one-week periods in each rotation.
5.When the employer first started its On-Call System, only a few of the EES
systems officers were required to be part of the rotation. Currently, all of the
EES systems officers, except for temporary EES systems officers, are required
to take part in the rotation.
6.As all EES systems officers are now part of the rotation, each EES systems
RIILFHULVUHTXLUHGWREH³2Q&DOO´IRr two weeks approximately every two or
three months.
7.'XULQJWKHILUVWZHHNRI³2Q&DOOGXW\´WKHV\VWHPVRIILFHULVWKH³3ULPDU\
2Q&DOO´DQGLVREOLJHGWRUHVSRQGWRany pages regarding problems with the e-
mail system during off-hours.
8.'XULQJWKLVVHFRQGZHHNRI³2Q&DOOGXW\´WKHV\VWHPVRIILFHUDFWVDVWKH
³6HFRQGDU\2Q&DOO´DQGLV responsible for responding to pages regarding any
problems with the e-mail system if thH³3ULPDU\2Q&DOO´LVXQDYDLODEOH
9.When an EES systems officer is on call, he or she receives, on average,
approximately 2 to 3 pages per week. However, the number of pages an EES
officer receives can vary greatly.
10.7KHHPSOR\HUKDVGHYHORSHGDQ³((62Q&DOO5HVSRQVH3URWRFRO´WKH
³5HVSRQVH3URWRFRO´
ZKLFKGHWDLOVWKHprocess that EES systems officers are
to follow when they are on-call.
- 4 -
11.If there is an issue with the OPS e-mail system that requires attention during
QRQEXVLQHVVKRXUVWKH((6V\VWHPVRIILFHUZKRLVRQ³2Q&DOOGXW\´ZLOO
receive a page from the SORC. Once the EES systems officer has received a
page, he or she must do the following:
a.e-mail the EES Operations Team to inform them that a page has been
received;
b.respond to the page;
c.log onto the system to assess the problem and determine what kind of
response is required;
d.Inform the SORC of the course of action to be taken;
e.take appropriate steps to address the issue; and
f.e-mail the EES Operations Team to inform them of the status of the
incident.
12.The exact nature of the response that is required depends on the nature of the
problem that resulted in the page.
13.The Response Protocol also details the amount of time in which the Primary
On-Call EES systems officer is expected to respond to a page.
14.The Response Protocol provides that when the SORC receives an alert, they
page the EES Primary On-Call. If they do not receive a response from the EES
Primary On-Call within 15 minutes, they send a second page.
15.If the SORC does not receive a response from the EES Primary On-Call within
15 minutes of the second page, they will then page the EES Secondary On-
Call.
16.If the EES Secondary On-Call does not respond to the page within 15 minutes,
the SORC will page the EES Operations Manager.
17.Despite the Response Protocol, the Grievors have been informed by the
employer that they are expected to respond to pages within 15 minutes. On
August 15, 2008, David Chadbourne, the EES Operations Manager, sent an e-
mail to the Grievors and the other EES systems officers. In that e-mail, he
informed them that they were required to respond to pages within 15 minutes
RIUHFHLYLQJWKHPZKHQWKH\DUHRQ³2Q&DOOGXW\´
18.On numerous occasions, the Grievors have requested more time in which to
respond to pages while they were on ³2Q&DOOGXW\´7KHVHUHTXHVWVKDYH
been denied.
19.)RUH[DPSOHRQ0DUFK0U8\HGDZDVRQ³2Q&DOOGXW\´DQGZDV
paged while he was shopping. He returned the page and was informed that a
high profile user required assistance with their blackberry. Mr. Uyeda asked if
he could complete his shopping and return home within approximately 40
minutes. Mr. Uyeda was advised that he ought to check out immediately and
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return home to begin responding to the page. Mr. Uyeda followed these
instructions.
20.On January 23, 2009, Mr. Campbell was RQ³2Q&DOOGXW\´DQGUHFHLYHGD
page while he was cooking dinner for his children. Mr. Campbell requested
that he be permitted to finish cooking before being required to respond to the
page. Mr. Campbell was informed that this was not possible.
21.2Q-XQH0U8\HGDZDVRQ³2Q&DOOGXW\´DQGZDVSDJHGZKLOHKH
ZDVDWWHQGLQJKLVVWHSVRQ¶VFRQFHUWLQa park. He responded to the page and
asked whether he could wait to respond to WKHSDJHXQWLOKLVVWHSVRQ¶VFRQFHUW
concluded and he was able to return home, which would take approximately 40
minutes. Mr. Uyeda was advised that he needed to return home immediately to
begin working on the issue. Mr. Uyeda then requested that the Secondary On-
Call be asked to handle the issue.This request was denied. Mr. Uyeda
returned home immediately and began working on the issue within
approximately 15 to 20 minutes.
22.The Union submits that, by requiring a response to a page within 15 minutes,
the Employer is requiring an immediate response to the page and is requiring
the Grievors to return to work immediately.
23.The Union further submits that, by virtue of fact that the Employer requires an
immediate response when the EES Officers are paged, the Grievors ought to be
FRQVLGHUHGDVEHLQJRQ³6WDQGE\7LPH´UDWKHUWKDQ³2Q&DOO'XW\´
24.The Union therefore takes the position that the Employer has violated Article
10 of the Collective Agreement in pa\LQJWKH*ULHYRUV³2Q&DOO'XW\´UDWHV
UDWKHUWKDQ³6WDQGE\7LPH´UDWHV
25.By way of remedy, the Union requests that the Grievors be compensated
DFFRUGLQJWRWKH³6WDQGE\7LPH´UDWHVVSecified in the Collective retroactive
to the date of the grievance.
[5] Union counsel orally supplemented the written particulars to the effect that on occasion
systems officers may not be able to have access to the internet at home or other off site
location with their employer issued lap-top or blackberry, and that on those occasions
they have returned to the workplace in order to perform the required task.
[6] The decision in Re Difederico, 2008-0868 (Dissanayake) illustrates that a prima facie
motion would succeed if the facts asserted in support of a grievance, if accepted as true,
are not capable of establishing the elements necessary to substantiate the violation
alleged. There the grievance alleged a violation of article 3.2 which SURYLGHGWKDW³7KHUH
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shall be no discrimination or harassmenWSUDFWLVHGE\UHDVRQRIDQHPSOR\HH¶V
PHPEHUVKLSRUDFWLYLW\LQWKHXQLRQ´7Ke grievance alleged that the employer had
exercised its management right to investigate a WDHP complaint in a manner that
harassed the grievor and that this was done as UHWDOLDWLRQIRUWKHJULHYRU¶VILOLQJRIWKUHH
grievances some years earlier. At para. 16, the Board wrote:
[16] Given the manner in which the grievance has been framed, in order to
establish a prima facie case, the facts asserted by the union must
establish that (1) the employer conducted itself in the exercise of its
management rights in a manner discriminatory or harassing of the
grievor, (2) that such conduct was motivated in whole or in part,
EHFDXVHRIWKHJULHYRU¶VILOLQJRIJULHYDQFHVVRPH
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There is no assertion by the union that the employer has required the grievors to keep
themselves ready to return to the workplace during the periods of time in question.
[9] The union submits that the facts asserted are capable of meeting both elements of article
UNIO. L Counsel concedes that normally, upon receipt of a call the grievors are able to
diagnose and fix the problem from wherever they are, without returning to the workplace.
Counsel submits that whether the grievors perform tasks required for the maintenance of
the OPS e-mail system at their office or off site, they do so by using a computer. Their
ability to perform work does not depend on their physical location. Therefore, their
"workplace" is not the physical location where they perform the work, but the computer
itself When a grievor has to have access to the computer upon receipt of a call while at
home or other off site location, he is in fact "returning to the workplace", and he has to
keep himself available to immediately do so during these time periods. Thus, she argues,
the union's particulars do meet both requirements of the definition. She submitted that
the employer contravened the collective agreement by paying the grievors on-call pay
instead of stand-by pay.
[10] In the alternative, the union submitted that it is inappropriate to dismiss the grievances on
the basis of the employer's motion without a full hearing. First, Counsel submitted that
the motion amounts to an attempt by the employer to have the Board determine the merits
of the grievance through a preliminary motion. In her view, "preliminary motions" ought
not result in the final disposition of the merits of a grievance. Such motions should be
reserved for determination of preliminary issues between the parties. Second, Counsel
argued that the determination of the instant motion would necessarily require the Board
to interpret article UNIO.I as to the meaning of "returning to the workplace". That goes
to the very heart of the dispute between the parties, and therefore, ought not be decided
by way of a preliminary motion. It was submitted that the union should be allowed to
adduce all of its evidence and make full legal argument before the merits of the grievance
are finally decided. Counsel submitted that the Board should exercise its discretion and
decline to deal with the motion. In this regard, counsel cited Re Ladouceur et aI, 2002-
2393 (Briggs) and urged me to follow that decision.
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[11] Union counsel further submitted that the ability of the grievors to diagnose and fix
problems remotely through use of modern technology benefits the employer. The
employer is able to have problems fixed quickly because the officers do not have to
physically attend at the office to perform the work required. Counsel submitted that it is
unfair to allow the employer to enjoy that benefit without having to pay for it
[12] Having carefully reviewed the submissions of the parties, I conclude that the motion
must succeed. I first turn to the union's alternate position that the Board should decline
to determine the motion. In advancing that position, union counsel did not assert
anything unique about this case, which distinguishes it from the numerous other cases
where the Board has heard and determined motions of this nature. In each case where a
prima facie motion is made, the Board is required to determine whether the facts
asserted, if accepted as true, are capable of substantiating the violation alleged. In Re
Ladouceur, (supra) the Board did not decline to hear the motion. Rather, it reviewed the
facts asserted and the applicable law, and decided that it would not uphold the motion in
circumstances where the employer disagreed with most of the facts asserted by the
union. It appears from the decision that the employer in that case, unlike the employer
here, did not agree that the Board should determine the motion on the basis of an
assumption that the facts asserted by the union were true. Thus at p. 13 the Board wrote:
The grievors set out complicated and detailed particulars regarding the various
statutes and their application to their workplace, history of their work, their
duties and responsibilities and their view of the real management expectations
of them as employees in cases of emergencies. I understand that the Employer
disagrees with much of that evidence and certainly disputes the
characterization of most of it That is precisely what it is necessary to have that
evidence called by the Union and challenged by the Employer in cross-
examination. For those reasons I cannot accede to the Employer's preliminary
motion to dismiss this grievance without hearing the Union's evidence.
[13] Here the employer explicitly invited the Board to accept the facts alleged by the union as
true for purposes of determining the motion. The union has not presented, and I am not
aware of any authority for the proposition that a "prima facie motion" ought not be
decided where it would require the Board to interpret provisions of the collective
agreement and/or decide legal issues, or where such motion would require the Board to
determine the merits of the grievance. To the contrary, numerous decisions including Re
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Difederico (supra) illustrate that the Board does exactly that when faced with a motion of
this sort.
[14] In Re Magee, 2006-1918 (Dissanayake) at para. 13, the Board cited S. 48(1) of the
Crown Employees Collective Bargaining Act, which provides that the Board "shall
determine its own practice and procedure, but shall give full opportunity to the parties to
any proceeding to present their evidence and to make submissions". In relation to the
prima facie motion made by the union in that case, the Board wrote, "Therefore, in the
exercise of the statutory power to determine its own practice and procedure, the Board
must decide whether or not it is appropriate to entertain the motion in the particular
circumstances before it". At para. 15-16, the Board concluded:
[15] A quick review of the employer's particulars reveals references to
numerous events involving many individuals, both bargaining unit
employees and members of management The employer was ready to
proceed with its evidence to establish the assertions made in its
particulars when the motion was presented. The union has given
notice that it would be contesting many of the facts asserted by the
employer. Therefore, it is reasonable to conclude that the hearing will
be a lengthy one. At the end of that lengthy hearing the best the
employer can achieve is to prove through its evidence the facts
asserted in its particulars. Then the parties would make submissions as
to whether the facts proven constitute justification for the employer's
failure to return the grievor to full duties.
[16] The Board is satisfied that in the circumstances it ought to hear and
determine the motion. Since the motion would be argued on an
assumption that all of the facts asserted in the employer's particulars
are proven as true, there is no prejudice to the employer. On the other
hand, if the motion is allowed, a lengthy hearing would be avoided,
resulting in significant saving of resources for all concerned.
[15] In contrast, in Re Monk 1990-2758 etc (Gray), the Board concluded that there would be
no efficiency achieved by dealing with the motion because the same evidence would still
have to be heard in relation to other issues in dispute, and therefore declined to deal with
the issues on a preliminary basis.
[16] In the case at hand, the issue which forms the basis of the motion is discreet, namely
whether the grievors are required to be immediately available to return to the work place
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within the meaning of article UNI o. L Both parties are agreed that clause (b) is a
mandatory component of the definition of standby time, and therefore for the grievance to
succeed, the union must meet that requirement The union had full opportunity to put is
best case as to facts through its particulars, without having to prove those facts.
Therefore, as in Re Magee, there is no prejudice to the union and none was asserted. It
was clear that the dispute between the parties, if the grievances proceed to a full hearing,
is not limited to the requirement regarding returning to the workplace. For example, the
parties were also in dispute as to the degree of immediacy expected of the grievors. It is
clear that all of those other issues became moot, if the union is unable to satisfy the
requirement in clause (b). I am satisfied in the circumstances that (1) there is no
prejudice to the union by the Board hearing the motion, and (2) that there is significant
efficiency to be achieved by hearing and determining the motion. Therefore, there is no
reason to decline to hear and determine the motion.
[17] Now I turn to consider whether the union's particulars make out a prima facie case for a
violation of article UNI o. L Interpreting the identically worded stand-by time provision
of the collective agreement (then article 15.1), in Re OPSEU (Union Grievance) (supra)
at p. 24, the Board stated:
It must first be recognised that the collective agreement, including its
definition of "Stand-by time" applies throughout the Ontario Public
Service and not only in this particular workplace. The Board must
recognize that the collective agreement creates two separate statuses-
Stand-By and On-Call. Whether one status or the other exists must
depend on all of the relevant circumstances in the particular workplace
under consideration. Turning to the collective agreement as presently
structured, the definition of "Stand-By Time" in article 15.1 has the
following components:
(A) It must be a period of time that is not a regular working period.
(B) The employee must be required to keep himself immediately
available to receive a call to return to work AND
(C) The employee must be required to keep himself immediately
available to return to the workplace.
It is significant to note that all three components must be present
before a period of time is deemed to be Stand-By time.
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[18] At p. 26 the Board reviewed the historical evolution of the stand-by provision in the
collective agreement, and at p. 27 wrote:
The old definition of "Stand-By time" required that an employee "keeps
himself available for immediate recall to work". The new article 15.1 requires
that an employee "keep himself immediately available to return to the
workplace". In our view, if there is any material change with regard to this
requirement, it is that under the old provision the immediate recall is to "work",
which is a broader term than the term "workplace" used in the new provision.
This demonstrates that in the new definition, which continues presently as article
UNIO.I, the parties explicitly amended the definition by replacing the words "recall to
work" with the words "return to the workplace". Therefore, it is reasonable to conclude
that the parties intended to change the definition of Stand-By time from the broader
concept of availability for "recall to work", to the narrower, availability to "return to the
workplace" .
[19] Under the old definition, where stand by time meant situations where an employee is
required to be available for immediate recall to work, the union may have had a
meritorious argument that when an employee is required to be available immediately to
perform work, regardless of where that work is physically performed, that would fit
within the definition. Such a provision may well have been broad enough to include
work remotely performed from home or other off site location. Thus in Re Markham
Stouffville Hospital, (2007) 167 L.AC. (4th) 425 (Albertyn) the arbitrator held that when
the grievors performed the work required remotely without physically returning to the
hospital, they met the terms of the collective agreement which entitled employees to call-
back pay "where employees are called back to work". Referring to Re University of
Alberta, (2000) 90 L.AC. (4th) 328 (Ponak), at para. 20, arbitrator Albertyn wrote:
26 We find this case instructive because our case is much like what was
contained in the first sentence there: "an employee is called back to duty". This
phrase is a lot like our "called back to work". In University of Alberta, different
from our case, the provision had two further sentences which led the board of
arbitration to conclude that the call-back was qualified by the requirement to
attend at the employer's premises. Those sentences contained the words,
"leave" and "leaving", which made sense only if the employee were actually
returning to the workplace. From the addition of these sentences, the board
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concluded that the call-back provision was not invoked by the work done off
site. In our case there is no such qualifying language.
At para. 27, the arbitrator quotes from the decision in Re Northeast Mental Health Centre
(2004) O.L.AA No. 673 (Whittaker), including the following:
Having reviewed the authorities, we find that in the absence of language which
indicates something else, call back entitlement should turn on whether an
employee is obliged to perform "work" for the employer where she would
otherwise be entitled to private pursuits. In the absence of language in the
collective agreement that would require attendance at work, call back pay
should be understood as compensation for the disruption to one's own time and
nothing else. ...
Arbitrator Albertyn then formulates the test to be applied as follows at para. 28:
28 The question then is whether there is language in the collective agreement
which indicates that the call-back entitlement requires the conclusion that it is
payable only upon physically returning to the workplace to perform the work
as, on the language, was the case in Northeast Mental Health Centre.
[20] While those cases had to do with the entitlement to call-back pay, the same reasoning and
test is appropriate in the present case. Applying that test, the conclusion is inescapable
that the language in Article UNIO.l contemplates a physical return to the work place.
Just as the reference to "leave" and "leaving" was held to make sense only if employees
were returning to the workplace in Re University of Alberta, the reference to "required to
return" has the same result In the language before me, the language is even more
suggestive of such an intention because there is explicit reference to "the work place". In
my view, it is an unreasonable stretch to interpret those words as including circumstances
where the employee remains available immediately to work using the computer at home
or other off site location. That would be to totally ignore the parties' reference to the
workplace. It is clear that when regularly scheduled, the grievors performed their work at
their workplace, i.e. their office. The definition of stand-by time in article UNIO
envisages availability to immediately return to that workplace. There is nothing in the
union's particulars that asserts that when on the rotation during after hours, the grievors
are required to remain available to immediately return to the workplace.
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[21] The particulars do assert that on occasion, where an employee is unable to access the
internet off site, they would attend at the workplace to do the required work No details
are provided as to the frequency of this occurrence, other than that it was "not frequent".
Regardless, it does not assist the union because such occurrences are the exception rather
than the norm, and there is no assertion that where employees are unable to perform the
needed work off site, they are required by the employer to return to the workplace, as
specified in article UNI o. L Moreover, there is no assertion that because of the remote
possibility that access to the internet may fail, the grievors keep themselves ready to
return to their workplace every time they are on the after hours rotation. Assuming the
facts to be true, that does not suffice to turn all time during the rotation into stand-by
time.
[22] The higher benefit of stand-by pay is a recognition of the greater degree of inconvenience
and the disruption of personal life, where an employee is required to hold himself or
herself in readiness to immediately attend at the workplace upon receipt of a call. For
example, that may require an employee to make arrangements for immediate availability
of someone to care for children or to ensure that a mode of transportation is available to
immediately attend at the workplace. The degree of inconvenience and disruption is
greater where the employee has to be available to attend at the workplace immediately,
than where the requirement is to be available immediately to perform work without
having to report to the workplace. The parties have explicitly recognized this. Thus they
have defined "On Call Duty" in article UNI LIas"... (a) recall to the workplace or (b)
the performance of other work as required". Thus recall to the workplace is not always
necessary for time to be deemed "On Call Duty". Indeed article UNII.2 explicitly
provides that "It is understood that a return to the workplace may not be necessary in all
situations". Therefore, the grievors' occasional and infrequent attendance at the
workplace to carry out the required work is not inconsistent with "On Call Duty" status.
The definition of "On Call Duty" contemplates that sometimes attendance at the
workplace may be required. Based on the facts asserted, the grievors are not called upon
to endure that greater degree of inconvenience and disruption associated with a
requirement to keep themselves available for immediate return to the workplace.
Therefore, while they are entitled and are compensated for the lesser degree of
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inconvenience and disruption they have to suffer, with on-call pay for the time during the
rotation, they are not entitled to the greater benefit of stand-by pay.
[23] Finally, assuming without finding, that it is unfair to allow the employer the benefit of
having its employees perform work remotely, without paying for that benefit, it suffices
to note that the Board's jurisdiction is not to dispense fairness, but to interpret and apply
the terms agreed upon between the parties. The parties have explicitly contemplated an
immediate availability to return to the workplace as a condition of entitlement to stand by
pay. The Board is required to give effect to that agreement of the parties, whether or not
it is of the view that it results in unfairness.
[24] It follows from the foregoing that the particulars relied upon by the union fail to make out
a prima facie case for meeting a mandatory condition for its claim for stand-by pay on
behalf of the grievors. In other words, even if all facts asserted by the union are accepted
as true, the grievance would not succeed. In the circumstances, the employer's motion is
upheld, and the grievances are hereby dismissed.
Dated at Toronto this ih day of April 201 L
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