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HomeMy WebLinkAboutBullen et al 08-12-26 BETWEEN: TO: 14169282487 P.2/18 HtJ/.t l~ ~)ferz(l-~ _, ."" ,......... ~..(' .' -.. t ,;1 .~~~ I. I. .0' r. . n~..:.."'.' \ : t::1LCQL-~~ 6-~ . ..__..... H . . ._~' .....,~... -"""" ... I 'I}" (~......_" . -ej\OJ. . : c~::~~~~l~~~J~.~~i ~ J 11 ? ~ ONTARIO PUBLIC SERVICE EMPLOYEES UNION 9053045147 JAN-13-2010 23:06 FRoM:PoSTERARo .. IN n~IE MATIER OF AN ARBITRATION (Hereinafter referred to as the "UniOfi") ~ and - THE CITY OF HAMILTON (Hereinafter referred to a.s the "Employer") . And in the matter of Remedies with respect to breach(es) ,of the meal break provisions of the Ontario Employment Standards Act. Joseph D. Carder e.ppearances forJnllJi:nJ,Rloyer: John SaunderS Brent Browert Sole Arbitrator Doug Waugh Counsel, Hicks Morley HamUton Emergency Services Emergency Medical Services, Director Hamilton Emergency Services Emergency Medical Services, Director Labour Rclations Officer Labour Relations Analyst Julie Shott Mark Jacklyn Ap.,pearaq~,J~r ilie Union: John Brewin Mario Posteraro Jamie Ramage Counsel, Rider, Wright Local President Local Vice-Prcsident Hearings in this matter were held in Hamilton, Ontario, on February ~6, 2008 and June 12, 2008 and further submissions wert received into December, 20Q8. JAN-13-2010 23:06 FROM:POSTERARO 9053045147 TO: 14169282487 P.3/18 Remedial Award On or about July 6, 20071 I released an award dealing witb allegations by the Union, the Ontario Public Service Employees Union, that the City of H:a.roilton had breached the meal break provisions of the Employment Standards, A-.ct with respect to the dispatch of its paramedics throughout the City. The following is a summary of my conclusions set out at. page 26 of thal Award: SUMMARY OF CONCLUSIONS 1. Section 20 of the Emolovmem Starldards Act requires the ass/gun/eM of a1l uniflterrupted eating period: 2. The tWin}: period must be assigned within the temporal p(1ramcter.~ set out in Section 20 of the d.~; however', it need not be regularly ,vchedu/ed but may be ~'Signed by the Employer or CACe dispatch ac.cording to the exigenCIes of the paramedics' work: 3, "An cating period" jor pUJ'(;l1lledics in Hamilton must entail relief from their regular duties which iltcllJ.(Je the statll,'i of emergcmcy standby; 4. Since the regular duties of the paramedics email rheoperationof(l~.ehicle while un emerBency standby, an eatiflB period for a paramedic in the City of lJumUton erttails relJt,ilrom those duties as we{/; 5. Failure to assign atl uninterrupted eating period represents a failure 10 comply with Section 2U of the linwLQymel1t Stanaard,'i Act: lhal employees take advantage of uninterrupted down time to enjoy an eating period may vitiat~ the /leed for a ;nonetary remedy for the fai/ur~ to :.;pcu;:iflcal/y assign an uninterrupted eating period. .. Having concluded the Award) I remitted the matter to the Parties to attempt [0 resolve the question of damages but remained seized in the event they were unable to do so. Unfortunately. they have not been successful in their discussions and have [']Ow placed before me for delermillation several issues concerning the appropriate remedy or remedies. New Develonments Having released my decision in July of 2007, 1 had expected, if the Purties were to encounter any difficulty in resolution, it would have related to the identification of those employees who would fall into thqse categories entitled lO monetary compensation. However, developments since the JAN-13-2010 23:06 FROM:POSTERARO 9053045147 TO: 14169282487 P.4/18 -2- Parties last appeared before me and prior to the issue of my Award on the merits have brought new issues into focus. The following is an ouUine of [hose new developments: 1. 00. October 20, ~OO6 there carne into force a new regulation pursuant to tbe Employment Standards Act being Regulation 49l/06. Section 5 of that Regulation dealt with eating periods in the following terms: Eating periods 5.1 (1) If an cmployer and the bargaining agent that represents an employee: 'a:gr.t!lf' to a term thm addresses the employee's entitlement to an eating p~riod as described in subsection (2), that term applies to that employer and e.mployee instttadoJsection 20 of the Act. O. Reg. 49]/06,5.5(1). (2) For tile pur.p()s~;of subsection' (1); an- employe,. at/d. bargaining agt!tlt may agre~to any ofthe'fo/[owing terms: 1. A ti:Ti71 that t':/Ititles elfl employee to olle or more eatft/.g pel'iod,,, that art!, or may be shorter {huT/. (iT a't illtervals that are {Jr may be longer thall are required by section 20 of the tkr, including a term that does nof specify the intervals. 2. A term thaClmtitle,~ an employee to fewer eating periods than are required by section 20 of the ~- 3. A term {hat entitles Un employee to eating periods or to compensation or time free j'rom performing work if the employee does not receive cin {~utinR period. 4, A trtrm that provides that (1ft employee ;,., not E:ntitled to eating periods, but provides that {he employer shall make effort... to enah/(~ the employee to n!:Mive eating periods, whether or not the term entitles the employee to compensation Dr time free from performing work if the I'!mJlI()y~p. (Joes not receive (111 e4tiltg period, JAN-13-2010 23:07 FROM:POSTERARO 9053045147 TO: 14169282487 P.5/18 .3. S. A term tiltH provides tht~t af! employee is not entilled to eating periotls. 6. A term that entitles an employee to eating periods or provides that Uti employee may be Killen all eating peTit)(/, but provides that allY eating period may be interrupted or missed, 7. A term that combine,~ elements of two or more terms dt:scrihed in paragraphs I to 6. O. Reg, 49//06. s. 5(2). ., 2. Before the release of my Award in July, the Parties had appeared ron., May 31, 2007'and made fmal submissions before an Interest Arbitration Board chaired by ArbitratOl; Kenneth Swan. The function of that board was to assist the parties in concluding a new collective agreement. That purpose entails the resolution of all outstanding bargaining issues between them. 3. During the course of the Union's presentatiOl'll.ott Ma.y :n, 20'0i7Tbefore the Swan Boatd, ooun.'lel, David Wright~ took the position that only the Parries themselves could conclude an agreement pursuant to Regulation 491/06 and that the Interest Board had no jurisdiction to award any term with respect to eating periods which differed from section 20 of the Act. The employer had made submissions regarding eating periods to that Board which contemplated the jurisdiction of the Interest Board to award terms at variance with 5.20. 4. 'On Jury. 6,20011 released my Award contu-ming amongst other things that the Employer was .in breach of section 20 of the ~ with respect to sample situations which had been presented before me. After the release of my Award in July of 2007.;: the Union called upon the Employer t<:l comply with it and, therefore, to comply with section 20 of the JAN-13-2010 23:07 FROM:POSTERARO 9053045147 TO: 14169282487 P.6/18 -4- Emn1o.YJ!!ent Standards Act. However, during tMt time frame the parties were awaiting .. , .. ~.. the release of the Swan Interest Arbitration Award which followed (i~:~~~~.?~~_~~.. '.: .~......r' ,.......~""'t" 5. ~Ph~Oc(Mql:_S~7)the Swan Board released its Interest Award outlining the terms to be incorporated in a new collective agreement between the Parties.i~!l.~~:~~Q.S,d.iS~.ega.ud&d Ctt:~:.~~6i!!rs.!~~n.Qt~~W.!'!~~.'~~.":'e.n.un~eati~~~~o~g:.~nq~~~g~j[~~:~(!~:l't9X@P.~) ~"'.\~~t~~~~~S.Yf!~~~I';)l't;,~Q.,'g.Lt!l~'._~t. Presumably, the Board assumed jurisdiction to ..........."n - deal with eating periods as if the issue were simply another matter in dispute between the Parties and properly before that Board for determination. There was no comment in the Award regnrdingMr. 'Wtight"fi :s'u.bi:ni'SstciflrtharthfrB~afa-r~~4Tu.ffi!~gI~[9.ii;JR.:, 4ii.~Q'~ - . J 'or..... .'_ ... .......~ . '..M ... ...._ ...... ...~. M - - '. . . 6. There has been no attempt by the Union to judiciaUy review the Swan Award with respect to the new provisions in the award regarding eating periods. 7. \:'Q!1....~v~'iiltef~;.~2~!7,;..the Parties entered into a ne.w collective. agreement incorporating amongst other things the meal break provisions set out in the Swan Award. Those provisions appear as follows in the Swan Award: t~~fjCl.iir;;jiZAi.AiiOw~9.~ There are t:;ompctins proposals from the parties 10 deal f;oth- with the right to an 4rtimer,.upted meal brcak, and nt:Jw to respond to situations where schoduling slloh (J bre/lk l,ecomes impossible due to operational considerations. We award the followlllg provi.~i()IIs: 2J .03 The Emp/oyer will endeavour If) pl'(lvitle One half.Jumr uninterrupted paid meal bl'flak for each crew between four (4) and six (ei) hours after the start of an eight (l!) houi'shift, and two half.hour uninterrupted paid meal breaks for each crew belWet:n four (4) and six (6) hours and between'eight (8) and ten (10) hours after the start Df a /Welvl:. (12) haLlr shJ./t. 21.04 In the event that crews arc /'lot permitted to lake their uninterrupted meal break the Employer will pay the ,~um of tell Jollar$ ($10,00) (() eacFl crew member for each missed mQal break. No receipts are .necessary to claim this allowance. .. JAN-13-2010 23:07 FROM:POSTERARO 9053045147 TO: 14169282487 P.7/18 .5- Union's Claim With respect to the developments outlined. Mr. Brewin for the Union takes the position before me that the Swan Award waS a nullity with respect to the meal break provisions. Accordingly, the Union seeks the following Directions and Orders from me: 1. A prospective Order and Direction that the City comply with the terms of section 20 of the Employment StandiU'ds Act nod that it continuo to do 1\0 unless and until the Parties themselves negotiate or agree otherwise in compliance with section 5 of Regulation 491/06. 2. (a) A decision as to the quantum of damages to be awarded per incident to individual employees during the time frame commencing with the period twenty (20) days prior to the tiling of the grievance on January 28, 2005 (tliat is. from: January 8, 2005) until the release of my Award 'Olr. Jury. 6t1l:~ 2007; . (b) The quantum of damages to be awarded to individual employees from the release of my Awar.d;on J."ufy'6, 2001 up to the release of the Swan Award 011'-Qctooer S,. 2001. I underSTand matters arising after release of the Swan Award will be dealt with through subsequent grievances. As to the first issue, Mr. Brewin took the position that the Regulation clearly put the discretion to agree to terms respecting eating periods other than section 20 of the Employment Standards Act in the hands of the Employer and the Union only. That power, in Mr. Brewin's submissions, could not be delegated to an hlterest arbitration board or any other party. In any event, the Union, through Mr. Wright, had clearly refrained from delegating allY authority to the Swan tribunal to deal with the matter. Accordingly, the Swan Board overstepped its jurisdiction, and, the provision awarded by that Board is a nullity. In the circumstances, this Arbitrator can and JAN-13-2010 23:07 FROM:POSTERARO 9053045147 TO: 14169282487 P.S/18 -6- should provide a compliance order effective from the date of my Award in July of 2007 going forward until such time as the Parties might agree to some term or terms other than section 20 itself. With respect to the quantum of damages for each individual breach with respect to individual employees fron;r January,. 8..20OS,!\lntil the date of my Award, Mr. Brewin originally asserted that. the appropriate compensa.tion should take inlO consideration not only the time worked, which ought to be paid at overtime rates, but also an element of general damages for pain and suffering with respect to the toss of a social benefit which had been guaranteed by the legislature as retlected in section 20 of Lhe Employment Standards Acl. Although the Union docs not seek a penalty per se fot the Employer's contravention of the Ayt, the amount claimed, being $250.00 per incident, is reflective of the penalties prescribed pursuant to the Act for contraventions of that nature. As to the time frame following the release of my Award and the continued failure of the Employer to comply with the Ag!, Mr. Brewin again poi.nted to the penalty prescribed under the M for subsequent contraventions (that is subsequent to a compliance Order it.sued by an Officer), as a guide to the appropriate compensation. In such a case the penalty prescribed is $1,000.00 per affected employee. (The Union's claim for pW1itive damages was subsequently amended as I will explain later in this award.) On behalf of the Employer Mr. Saunders took the position that the Swan Award was not a nullity. Rather" the eating period issue, notwithstanding Mr. Wright's unilateral attempt to deny jurisdiction to that Board, was a matter in dispute between the Parties which was properly addressed by the Swan Board pursuant to its legislated jurisdiction. JAN-13-2010 23:08 FROM:POSTERARO 9053045147 10:14169282487 P.9/18 .7- Regarding damages prior to the release of my Award from January 8, 2005, it was Mr. Saunders position that they should be measured in terms of the actual financial loss suffered by the employee. Any additional amount whether described as general damages or otherwise would constitute a penalty. The penalties prescribed in the Employments Stan9args Act for contravention of its various provisions are not available to arbitrators but only to Officers pursuant to specific powers gra.nted them within that legislation. A penalty by any other name is still,a penalty and an arbittalion Board has no jurisdiction pursuant to lhe Employment Standards A&1 to levy such a fine. Two hundred and fifty dollars ($250.00) per incident even if characterized as make whole damages as submitted by Mr. Brewin, is clearly punitive in nature and inappropriate in the circumstances. It was Mr, Saunders submission that the appropriate level of damages was the actual monetary loss suffered by each employee per. occasion which waS in the neighbourhood of '$'6~6!rpe:t."incldentJ That amount) as I understood it, was based on an hourly rate of $26. 7~3:.i Since employees had already received pay throughout their entire shift at regular rates they were entitled only to an additional half hour at half time rate rather than time and one,..half. While Mr. Saunders did not deny my jurisdiction to award general damages, I ought nOl lu do su except in appropriate circumstances. In this case, there was no evidence of pain and suffering Or inconvenience for any employee whatsoever. Accordingly, it would be inappropriate to award any amount by way of general damages for the loss of an eating period. Regarding the time frame following my Award, Mr. Saunders submitted that there ought not to be any difference in the quantum of the remedy during this period since it constituted a period of uncertaiilty. The Swan Award might weU have been made: retroactive with respect to eating periods and, therefore, have coveted the relevant time frame and more. Alternatively, if some amount js considered appropriate by way of general damages, any determination should take into , JAN-13-2010 23:08 FROM:POSTERARO 9053045147 TO: 14169282487 P. 10/ 18 -8- consideration amounts prescribed in other contracts as well as the Swan Award itself which presCl'ibed a $10.00 per incident payment for mitl:Sed meal breaks. THE DE~ISIQN The P{Qsg.ective Declaration For the reasons which follow 1 am of the view tha.k'i"!a.t'I~Jil0li. at liberty to grant a prospective or go forward dec1al'ation l'equiring the Employer to comply with Section 20 of the: Employm.ent Standards Act: L My jurisdiction in the. first instance flows from the collective agreement or, in this case, that state of affairs, legislative and otherwise, which constituted a collective agreement between the Parties following the download from the Province to the City of responsibility for and employment of Paramedics, From that jurisdiction flowed my authority to consider the Empll.ly:menLSlandards ACl and its application to the relationship between the Parties with respect to eating periods. When the Swan Award was release It ou' October 5~ 2007' and, more emphatically. when the Parties executed a new collective agreement on N{)vembe&".;tSl~ any remedy I might have already granted and, indeed, any power to grant a remedy therea.fter came to an end. The new collective agreement replaced that pursuant to which I had authority and my authority ended. In the circumstances. on that basis alone, it is my view that I am without jurisdiction to grant tbe prospective declaration sought by the Union here. 2. There IS. ,notliing' in'tIle ne.w Regu1ation~:itself'.wliich: states" tliat the- subject matteris:!estt:icted~' to, agreement between the P.a.rtie..~, only. Rather, the Regulation is permissive and allows for agreement to terms other than those provided for in Section 20. Doubtless, the legislature contemplated negotiation between the Parties in order to reach terms other than those prescribed in Section 20, ' The subject matter is, therefore, one c.oncern which {he Parties may JAN-13-2010 23:08 FROM:POSTERARO 9053045147 TO: 14169282487 P.1V18 .9- negotiate as pan of their collective bargaining or otherwise. Should they fail to resolve the matter to their mutual satisfaction, it is my view tbat eilher might refer it along with others to interest arbitration since that is the basis upon which these Parties must resolve such disputes. If that were not the case, and the Parties were left to their own devices without recourse to interest arbitration, as the Union asserts, the Parties might then be free to resort to their ec;onQmic weapons Of:' sanct.f0~. That, of course. would be an absurd result and could not have been in rhe contemplation of those responsible for the enactment of the new regUlation. 3. Section 21(1) of the A!:ntrn~.LAm provides the Interest Arbitrator with jurisdiction to decide "on the matters that ate in dispute and any other matters that appear.. ,to be necessary to be decided in order to conclude a collective agreement..... The Swan Board decided the issue either as a matter in dispute or one of ~'any other matters...neccssary to be decided". There was no need for the parties to delegate . authority; the Board's juril:ldiction was legislated. 4. ,In the absence of this Regulation, the Parties could not negotiate any provision less heneficial to employees than that described in Section 20. They could, however) negotiate a hight:r or grt;at~r right than that described in Section 20. Clearly, the new Regulation was designed to allow negotiation of a benetlt less than or different than Section 20. To find that there would be no recourse to the Employer in the event. the Union refused to consider any lesser benefit would be to make a mockery of the new provision. In the circumstances. I conclude that the Union's position that the Parties and only the Parties can deal with the new Regulation must be incorrect. Accordingly, the decision of the Swan Board which resolved the issue for the Parties effective from JAN-13-2010 23:09 FRoM:PoSTERARo 9053045147 TO: 14169282487 -P.12/18 .10 . OClOber 5, 2007 takes the matter out of my hands with respect to any remedy [ might award from that date forward. Monetary Damages ~alties At the onset of proceedings respecting remedies the Union had sought damages as foHows: i. Reimbursement for the overtime not paid to paramedics who were required to work through their eating period. This would be one half (\/:) hour at Vi time rate (similar to that proposed by Mr. Saunders as the total solution here). ii. Fines and Penalties available under the Emplovment Standards Act for infractions of this nature by the Employer in the amount of: a) $250.00 per infraction per employee froIn January 8, 2005 up to the release of my awa.rd and; b) $1,000.00 per incident for the continuation of offences after the Employer's obligation was clarified in my award on July 6,2007. When it became clear that fines of this nature pursuant to EmpI.Qy.me.nr Standards Act could nOI be imposed by Arbitrators but only hy Employment Standards Officers and that the proceeds of such fines would be payable to the Crown, Mr. Brewin abandoned the Union's claim for fines and penalties under the 8&1., However, the claim for damages in the amounts outlined were not entirely withdrawn; rather, Mr. Brewin sought 1'0 recharacterize the $250.00 claim as Hmake whole" damages for loss ot' the social benefit of an eating period. He did not pursue the $1,000,00 claim further, He did, however, suggest that the compensation I might award in tenus JAN-13-2010 23:09 FROM:POSTERARO 9053045147 TO: 14169282487 P.13/18 - 11 . of make whole damages should range from a low of fun time and one half for the lost half hour, that is 45 minutes pay, to the more appropriate high level of $250,00 per incident. _ 1 have considered the revised position of the Union with respect to it's claim for $250.00 and am of the view tha.t, however characterized a remedy in that amount for failure to provide designated eating periods in the circumstances' of this case would, in itself, be punitive in nature and excessive beyond any reasonable assessment. More spt;cilically, the following elements dictate against such a punitive amount: i) That amount is derived from a list of fines and penalties prescribed in the Employment ~tandards Act. Calling it something else does not change the fad thaL il goes beyond what would flIlancially place employees where they would have been but for the breach. The amount waS designed as a penalty and as a disincentive to bad employers. That. scenario is not appropriate here nor are punitive amounts appropriate in this case, I will deal more fully with the "make whole" aspects of the Union's case later in tlus award. ii) Before the Province downloaded responsibility for the Paramedics to the City~ the Paramedics had no legal entitlement LO eating periods pursuant to the Employment Stand~rds 8.ct. As sLaled in my Award on the merits of this case" it is surprising that the legislature had not anticipated this problem at that time especially since the nature of the Paramedic service demands an almost instantaneous response to emergencies. In any even!., the health amI SafClly needs of Paramedics to an eating period gave way to the social needs of the public at large with the enactment of the new Regulation. That change and the amount of down time experienced daily by Paramedics undennines the mental health argument of the need for a one..half hour break from the stress of the job or for a significant monetary penalty for the failure to have provided one. JAN-13-2010 23:09 FROM:POSTERARO 9053045147 TO: 14169282487 P.14/18 .12. iii) Although Mr. Saunders agreed or acknowledged on behalf of the Employer that the Union had written the Employer following lhe release of my Award to the effect that Section 20 should he followed to the lette,r as I had determined, it was not unreasonable for the Employer to await the Swan Award prior to implementing any dramatic or co~tly changes. As noted earlier, the new regulation had come into effect during Lhe intervenhlg period and the issue had been squarely put to the Swan Board for determination. Although it is unusual for an Interest Board to require the parties to implement such cha.nges ret.roactive.ly, it is within their jurisdiction to do so and not entirely beyond the realm of possibility. Furthermore, it is understandable that, having received my award, time was required by the p'ar1;i~s, ~o digest its ,meaning' and:' ro"a&sess, m,ethwds ,Qf:~,pf~ Indeed, given the fact that the issue was already before Swan, any change..~ to comply with my decision might have proved llhort-lived in any event. jv) 1'n the circumstances, it would be unreasonable in my view to impose a significant penalty upon the Employer for mental distress or inconvenienc,e occas'ioned by employees as a result of a missed eating period. I conclude that a punitive amount in the nature of $250.00 per incident would be totally inappropriate in this case. That is not to say some monetary remedy for I inconvenience and/or loss of a social benefit is not appropriare here. Make Whole Damages Thil'i brings me to a consideration of the other aspect of the Union's case which Mr. Brewin described as making the employees whole for having been deprived of their prescribed eating period. The time frames for (he purposes of this submission would have begun from the. filing of the grievance or rather twenty days prior to that in accordance wHh the terms of the collective agreement and continuing up to the issue of my Award and thereafter unril the Employer complied with Seclion 20 as required. Since it is my view that my jurisdiction ends with the JAN-13-2010 23:09 FROM:POSTERARO 9053045147 TO: 14169282487 P.15/18 . '13 . issue of the Swan Award, that would be latest date for which any monetary remedy might. be granted to any Paramedic pursuant to this decision. With respect to quantum, in addition to the one.half hour per incident for which Paramedics were not paid their full time and one.half rate. Mr. Brewin argued that they should receive two hundred and fifty dollars ($250.00) for the lo~s of the social benefit which was their right pursuant to Section 20 of the Employment StaQdards Act. He did not pr~ss lhat claim further on the bagis of psychological damage or mental anguish. Rather, this amount would reimburse them for the denial of their statutory social right of Ii meal break as a result of the Employer's c,avalier disregard of those righls. Having been deprived of that opportunity at the time it was due, it cannot now be recovered. Further, he argued that amounts in the range of ten ($10.00) for missed meal breaks reflected in Collective Agreements elsewhere were not sufficient where, as here, employee rights had already been violated. More important, amounts in other collective agreement!> are the result of bargaining and a balancing of total interests which can not be achieved here. On behalf of the Employer, Mr. Saunders argued that, for employees who came within the cntegory which r described as being entitled to compensation, the appropriate level would simply be reimbursement for the one-hatf hour of '.work" but at one-half time their regular rate since they had already been paid fully at their regular rate for that half hour in accordance with the Employer's practice. Any additional sum, according to Mr. Saunders, could be nothing other than punitive in nature. It was his position that I have no jUl'jsdiction pursu7to----the Employment Standards Act to impose a penalty and, further, thar two hundred and fifty ($25OJ"IO) per incident would be excessive in this case. Alternatively, before considering any amount by way of make whole losses or general dl:lrnagc for pain and suffering, I should be JRN-13-201023:10 FROM:POSTERRRO 9053045147 TO: 14169282487 P.16/18 - 14- guided by contracts between like partieS with respect to the amount paid for missed meal breaks. My deliberations should include, in particular, the decision of the Swan Board which awarded ten dollars ($10.00) for each meal break misSed by employees. Before concluding his submissions, Mr. Saunders contlrmed that, although the Province is largely responsible for theprediC'li.ment nOw faced by the Employer, the City will not be pursuing any claim before me against the Province with respect, to the remedy which might be ordered. The Decision Reeardine Make Whole Damages As outlined in my original award, there were two types of incidenls: The E~ceDtions Type 1 - Those where there was a technical breach of the Act but employees had ample opportunity in downtime to enjoy a meal break (such as on January 14 and 16). I was of the view that a monetary remedy for these instances might not be appropriate. Mr. Brewin acknowledged that the Union was not pursuing monetary damages for these. The Rule Type II - Situations where an uninlerl'Upted eating period Wl'lS not assigned contrary to Section 20 , of the' Employment Standards Act (such as on January 24 and 28). To clarify, a monetary remedy is appropriate in all Type II' situation!'; except where circumstances bring the crew within Type I. With respect to those Type TI incidents for which a monetary remedy is appropriate, I have considered the submissions of eouMel, and am of the, view, as expressed earlier, that $250.00 per JAN-13-2010 23:10 FRoM:PoSTERARo 9053045147 TO: 14169282487 P.17/18 " 15 . incident would be excessive and punitive in nature. On the other hand, some amount should be payable to those employees for lost opportunity. There were health and safety reasonS for the meal break legislation and during the period it applied to pa,ramedics in Hamilton they were entitled to its benefit. As Mr. Brewin argued, there is now no opportunity for them to recover the opportunity they missed. Since the implementation of Regulation 491/06 giving parties flexibility to negotiate around the meal break issue for paramedics, other parties have done so. In several of those cases the payment for th~ lost opportunity or in some cases the allowance provided for meals was set at $10.00 per incidont. Ten ($10,00) per incident was the amount set by the Swan Board going forward with respect to these very parties. It is my view that the amounts provided in those contracts and, in particular. the ten ($10.00) prescribed for the Hamilton paramedics by the Swan :Board provide the best guide as to the appropriate level of damages to be awarded here. 1. In the circumstances, it is my finding that each crew member who is entitled to monetary compensation in accordance with my award on the merits shall be paid the sum of tcn ($10.00) for each missed meal brea.k. 2. The ten ($lO,UU) dollar payment shall be inclusive of any amount which might othelWise be payable with respect to overtime deemed to have been worked during the mi!ilsed meal hreak" 3. The relevant period commen~ary" 8; 200S"and ends with the effective date of the Swan award, ~ber:5;. 2O,Q:7. , 4. Payments are due with respect to all Type II incidents except where Type J circumstances pertain. To clarify, as in the January 1411) and 16111 sample shifts, where assignmc:nl:S during lh~ first five (5) hOllrs of a shift are sufficiently light such that it is reasonable to a:;;sume crew JAN-13-201023:10 FROM:POSTERARO 9053045147 TO: 14169282487 P.18/18 . I .16 - members could and would have raken a full one half (1/2) bour uninterrupted meal break, monetary damages would not be payable. 5. I understand the employer wiU co-operate with the Union, in so far as it is able, to obtain and provide records to the Union in order to determine the entitlement of crew members pursuant to this award. I will in any cvcnt~ J'cf,ain jurisdiction with respect to any it\suet> arising from I,his Award or in the event the parties have any difficulty in its implementation. ~ DATED at Toronto this eX b day of December,2008: ,.