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HomeMy WebLinkAboutCasey et al 12-04-19IN THE MATTER OF AN ARBITRATION UNDER THE ONTARIO LABOUR RELATIONS ACT BETWEEN: WAYPOINT CENTRE FOR MENTAL HEALTH CARE (“the Employer”) AND ONTARIO PUBLIC SERVICE EMPLOYEE’S UNION, ON BEHALF OF ITS LOCAL 329 (“the Union”) GRIEVANCES RE CASEY & CAMERON OPSEU Grievance Nos. 2010-0329-0029 & 0030 AWARD ARBITRATOR: BARRY STEPHENS FOR THE EMPLOYER: EMPLOYER COUNSEL: JASON GREEN, Hicks Morley Hamilton Stewart and Storie LLP FOR THE ASSOCIATION: UNION COUNSEL: ANNE LEE, Regional Grievance Officer, OPSEU HEARINGS HELD IN BARRIE, ONTARIO ON APRIL 10, 2012 A W A R D Introduction [1] These grievances involve claims for premium payment for employees who are performing on-call work. The employees both work in the employer’s Information Technology department. The nub of the issue is whether the grievors are eligible under Art. 35.03(a) of the collective agreement for payment for call back pay when the work in question is not performed at the workplace. [2] The parties argued the case on an agreed statement of facts, as follows: AGREED STATEMENT OF FACTS For the purpose of the dispute presently before this Board of Arbitration, the parties agree as follows: 1) At all relevant times to the subject grievances, the parties were bound to the terms and conditions of the 2009-2011 collective agreement between the Hospital and OPSEU, a copy of which is enclosed at Tab 1 to this Agreed Statement of Facts (the “Collective Agreement”). 2) The grievor Rosie Cameron is a member of the OPSEU bargaining unit and has a seniority date of January 16, 1989. At all relevant times to this arbitration, Ms. Cameron held the full time position of Systems Officer 2 in the Information Technology department of the Hospital. 3) The grievor Carolyne Casey is a member of the OPSEU bargaining unit and has a seniority date of October 28, 2002. At all relevant times to this arbitration, Ms. Casey held the full time position of Technical Support Technician in the Information Technology department of the Hospital. Ms. Casey’s last name is now Bentham. 2 Rosie Cameron 4) On October 3, 2010, Ms. Cameron was called at home outside of her regular working hours by the Hospital. She was requested to assist in resolving a problem with the humidity level in the hospital server room. 5) .Ms. Cameron assisted in resolving this problem from home and spent approximately half an hour engaged in the work related to this request. 6) Ms. Cameron submitted a Premium Payment Report for the work completed. In the Report, enclosed at Tab 2 to this Agreed Statement of Facts, Ms. Cameron sought payment for a total of six hours for the work on the basis that she was entitled to the call-back premium provided for in Article 35.03 of the Collective Agreement. 7) Ms. Cameron’s request for the call-back premium was denied. Instead, she was compensated for her time pursuant to the overtime premium provided for in Article 33 of the Collective Agreement. 8) On November 23, 2010, Ms. Cameron filed the current grievance alleging a violation of Article 35.03 of the Collective Agreement. A copy of the grievance is enclosed at Tab 3 to this Agreed Statement of Facts. 9) In addition to denying the substantive basis for the grievance, the Hospital raised an objection to the grievance based on timeliness. Carolyne Casey 10) Ms. Casey was called at home outside of her regular working hours by the Hospital on several occasions. On each occasion, she was requested to assist in resolving IT-related problems for the Hospital. 11) In each instance, Ms. Casey assisted in resolving the problem from home over varying lengths of time. The time worked on each occasion is detailed in her Premium Payment Reports (“Report”), which were filed in support of her claim to premium payment for the time worked. 12) Specifically, Ms. Casey worked as follows: a. On June 27, 2010, Ms. Casey worked for approximately two hours. Her Report filed in support of the premium claim is enclosed as Tab 4 to this Agreed Statement of Facts. b. On July 2, 2010, Ms. Casey worked for approximately two hours. Her Report filed in support of the premium claim is enclosed as Tab 5 to this Agreed Statement of Facts. c. On May 8, 2010, Ms. Casey worked for approximately forty- five minutes. Her Report filed in support of the premium claim is enclosed as Tab 6 to this Agreed Statement of Facts. 3 d. On August 19, 2010, Ms. Casey worked for approximately fifteen minutes. Her Report filed in support of the premium claim is enclosed as Tab 7 to this Agreed Statement of Facts. e. On September 1, 2010, Ms. Casey worked for approximately half an hour. Her Report filed in support of the premium claim is enclosed as Tab 8 to this Agreed Statement of Facts. 13) In respect of all Reports filed, Ms. Casey was compensated for her time pursuant to the overtime premium provided for in Article 33 of the Collective Agreement. 14) Ms. Casey was paid the overtime premium for the September 1, 2010 work in the September 5, 2010 pay period. 15) On November 23, 2010, Ms. Casey filed the current grievance alleging a violation of Article 35.03 of the Collective Agreement and seeking to have the payments recalculated pursuant to the call-back premium. A copy of the grievance is enclosed at Tab 9 to this Agreed Statement of Facts. 16) In addition to denying the substantive basis for the grievance, the Hospital raised an objection to the grievance based on timeliness. [3] The grievances focus on the meaning of Art. 35.03(a), which reads as follows: “An employee who is called to work after leaving the Hospital premises and outside of their regular scheduled hours, shall be paid a minimum of no less than four (4) hours’ pay at time and one-half (1 ½) their regular straight time hourly rate for work performed. In the event that such four (4) hour period overlaps and extends into the employee’s regular shift they will receive the four (4) hour guarantee payment at time and one half (1 ½) and their regular hourly rate for the remaining hours of their regular shift. Once on-site, should additional work be available, the employee may be asked to perform such work.” (Emphasis added.) [4] The grievors were paid an overtime premium under the collective agreement for all time worked from home. However, they did not receive the premium under Art. 35.03(a), which would have triggered the payment of four hours minimum pay. 4 [5] I note that the employer raised a preliminary objection with respect to the timeliness of the grievances. However, the union conceded that the grievances may have been untimely, but that this fact only affected the compensation that may be payable. Moreover, both parties agreed that I was to rule on the merits of the grievances regardless of the timeliness issue. Given my finding on the merits, there is no need for me to make a formal ruling with respect to the timeliness of the grievances. Employer Submissions [6] This case turns on the interpretation of Art. 35.03(a) of the collective agreement. The employer argued that the language clearly stipulates that the premium is triggered only when an employee is called back to the workplace and performs work on the employer’s premises. In particular, the employer relied on the phrases “after leaving the Hospital”, and “once on-site”, which both indicate the premium is paid only for work performed at the workplace. Thus, the employer argued, a physical return to the workplace is a necessary pre-condition to the payment of the premium. [7] The employer relied on the following authorities: Mount Sinai Hospital, [unreported, Abramsky, February 2012]; Automated Screw Machine (1972), 23 L.A.C. 396 (Johnston); St. Raphael’s Nursing Home (1985), 18 L.A.C. (3d) 430 (Roberts); Queensway General Hospital (1996), 57 L.A.C. (4th) (194 (Kaplan); Air Canada (1979), 22 L.A.C. (2d) 298 (Shime); Greater Niagara Hospital (1981), 1 L.A.C. (3d) 1 (Schiff); Peterborough Civic Hospital (1985), 22 L.A.C. (3d) 151 (Burkett); Northeast Mental 5 Health Centre [unreported, Whitaker, October 2004]; Webster Manufacturing (1971), 23 L.A.C. 37 (Weiler); Grey Bruce Regional Health Centre [unreported, Brent, April 1995]. Union Submissions [8] The union submitted that, with the development of technology, the law has evolved to provide that when an employee receives a call from work, and is then required to perform work during time that would otherwise be personal time, the employee has, for all intents and purposes, been recalled to work and should be compensated appropriately. The union argued that, in circumstances where an employee works from home, he or she could be required to perform additional duties within the four hours without triggering an additional premium, as would be the case if the employee performed the work at the workplace. [9] The union relied on the following authority: Markham Stouffville Hospital [unreported, Albertyn, December 2007]. Conclusion [10] There is no doubt that technology has changed the way we communicate and the way we work. Working from home or other locations beyond the worksite is common, and the interpretation of collective agreement provisions is evolving to reflect this fact. However, regardless of the changes in technology, the rights of the parties will continue to be governed by the meaning of the words contained in the collective agreement. 6 [11] I agree with the approach of Arbitrator Whitaker, in Northeast Mental Health Centre, cited above. In that case, the collective agreement provided in Art. 17.02 that minimum call back pay was triggered when an employee was “called to work after leaving the Hospital premises.” Arbitrator Whitaker sets out a succinct and clear review of the cases in this area, finding that the vast majority of arbitrators now accept that call back pay is to compensate employees for disruption to their personal life, “…and nothing more.” In spite of this general trend, however, Arbitrator Whitaker observed that the parties could still agree to specific language that would lead to a different result, stating at page 10-11 of the award: “This analysis, however, cannot apply where the language chosen by the parties to describe the call back entitlement in the collective agreement suggests that a physical return to the workplace is required as a threshold condition. Whatever is recognized as the general rationale for call back pay must give way in the face of language agreed to by the parties, which describes the conditions of entitlement in a different way.” [12] Arbitrator Whitaker then went on to make the following comments in reaching his conclusions at page 12 of the award: “In Article 17.02, the parties have indicated by their choice of language how to define the point at which an employee becomes eligible for call back and then when that period of eligibility ends. Despite the fact that the jurisprudence indicates that the general purpose of call back pay is to compensate an employee for disruption to personal time, the parties to this particular collective agreement have indicated that there is a significance which must be attached to whether the employee is obliged to come back to work after having left the employer’s premises. For them, the question of whether the employee is obliged to return to the workplace ‘means something’. We are compelled by this choice of language to conclude that an employee must leave the physical premises of the Hospital and then return to the workplace, to become eligible for call back. 7 … Our conclusion turns completely on the express language used by the parties in Article 17.02. We find it more likely than not that when the parties agreed to the language of this Article, their joint intention and understanding would be that an employee would be obliged to return to the workplace as a condition of receiving call back pay.” [13] In my view, this analysis and the conclusions reached by Arbitrator Whitaker apply with at least equal force to the language in the case before me. The language in Art. 35.03(a) also sets a threshold for eligibility with the references to, “after leaving the Hospital”, and, “once on-site.” Quite simply, the language used leads to the conclusion that the parties contemplated a premium for employees who are required to return to the workplace. [14] Even with the changing nature of technology, particularly with respect to employees working within an IT department, and the ability to perform work without difficulty from locations beyond the workplace, it cannot be argued that there is no difference between performing work from home, for example, versus being required to leave home, travel to the workplace, perform work onsite, and then travel back to return to one’s leisure pursuits. There is greater disruption to one’s private life in the latter circumstance, and it is not inherently illogical or inappropriate for the parties to craft a premium intended to compensate for this greater degree of disruption. [15] For the above reasons, in my view, the premium in Art. 35.03(a) is intended to compensate employees who are required to return to the workplace to perform work during time that would otherwise be non-working hours, and the premium does not 8 apply to the work covered by the grievances before me. As a result, I find that the employer properly applied the overtime premium to the work in question, and that the premium under Art. 35.03(a) was not triggered. Given all of the above, the grievances must be dismissed. _________________________________ Barry Stephens – Arbitrator April 19, 2012