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Home My WebLink About1981-0141.Novak and Humphrey.81-05-20Between: IN THE XATTER OF 93 ARBITRATION Under The CRONX E&lPLOY"ES COLLECTIVE BARGBIXXG ACT Before THE GRIEVANCE SETTLEXENT BOARD Xr. Denny Kovak and Mr. George Humphrey - And - Grievers The Crown in Right of Ontario (Ministry of Natural Resources) Employer Before: Prof. P. G. Barton Vice Chairman Mr. E. R. O'Kelly Member Prof. F. D. Collom !vlember For the Grievor: Mrs. Martha Mercer-DeSantis Grievance Officer Ontario Public Service Employees Union For the Employer: Jllr. J. A. Temple, Personnel Branch Ministry of Natural Resources Hearing: TSe grievers are em;r:o.;ed as ?esour.ce Te.c:nn;crr.s $3 vi3 tSe >linistr:I of Xatural ?.esources, Cazb:llge. :?a grievance covers a ?erlod between XarcS 20, 1330 am2 laze Xc-.-tzber 1580. During this time the grievers were required to a;: as Duty Offi cers pxsuant to a memorandum of EarcS 20, 1333 from x. .9. Catton, District >!anager. %ey grieved that lurk: this time men tSey xere acting as Duty Officers tSey jiere said 3cccrc'k.q to the on-call duty rate of pay pursuant 'io Ar'_iCLe 16 i?d. s,~cu~c$ have been said pursuant to the stand-by Article 15. Some hackqround would be helpful. BotS grievers -40~:~ in the Cambridge District. They have both taken courses in resource technology as well as courses in criminology and courses at the Police College in Aylmer. Most of their duties involve acting as conservation officers, enforcing a number of pzcvincial and federal statutes including 'The Gme and Fish Act (.Cntario!, The Fisheries Act (Canada) and The Xigratory Birds Convention .ict (Canada). While in the field they wear a uniform, car--y badges, and are armed. They are required under TSe Game and Fish Act to investigate infractions brought to their notice and being law enforcement officers work quite closely witS the O.P.?., resicnal forces, and be R.C.Y.P. Some of their vor!c is of an emerqexp nature in the sense that they receive a.call concernin: an injured animal and normally gotc the sceneto dispatch that anizai or Ctherdise deal wi,th the p-oblem. Other situations which they investigate involve such things as catching 2eogie who are catchins ~CO many fish (poachers), catching people .who huntoun of season Or ni3ht, - 3- investigating sauces of ?oil:itiori, and other similar d-ties. Xany of tSese izties involve xorki.:~ at odd holes of he day ar.9 night and many of the sitsatLons reqci:e some i;r~er.cy ix the ser.54 that if they don't act the people that they are trying to catch will no longer be at tSe scene. lrior to Xarch 1930, on 32 weekends, !!iriistqy ?ersoxel could be reached in t-do ways. I,? t:Se <;-it place ;rit:h respect e-e to tails dea1i.q with fires 0: floods, a ne,rber of management would carry a telephone ?aqer. TSere were fire and fiood ?ianS in operation and it was the responsibility of the person carryins this paser to either implement these 2lans or call scmebody who could. At the same time, on the weekends, a Conservation Officer would carry a pager during tSe 8:OO e.m. to 5:OO p.m. period and would be available t3 call an ansslering service to respond to fish and game emergencies. On the off-hours during tSe weekend, i.e., zon a:00 a.m. to 5:OO p.m. tines, no Conservation Officer had any responsibilitf,but they might be contacted by management in the case or' an emergency. in Xarch 1980 the pacjinq systems were merged in that only one ?ager irras continued in operation, Tdhich paqer beins carried by somebody described in the memorandum of Ilarzh 20, i990 as a Duty Officer. The Conservation Cfficer who was Sthedded for sreekend work was designated as a Designated Duty Officer. it was 'his dutf to respond to both fish and wildlife calls. SO -. SpCiZlC instructions were ~i,~en ;iit:h respect to fislh and xL111i:~ calls, and the officers on d-ty xere required -0 "czn:inue -2 - 4 - aaintain contact 'with the ans;rering service" while 0,: <-ry. g..-: ?C 4-A .j of5-hours the ?agez *das to be keot scti7e azd for 51:s zes~ozsi- bility the Duty Office= was stated -0 Se entitled to Se raid irizh t5c on-call duty rate. Vit!: respect to fires or f;ood, it ilas ?ointeCi out that- it 'das essentiai to act quickly anl %at i= was t:?e dztl7 or' tlie Duty Officer to ixnediately pass the 3essa;e to a senior staff or alternate person to enable t:?at ?erscn to set in .motion t:he -. ;>rP- or flood p.lar.. Although it is not completeiy clear from the arguiient 0: from the docunents submitted, it a?gears that the grievance relates to the e ntire time spent &ring the weekend in t:le position of carrymg a ?acpr, whether or not the Conservation Officer was scheduled to war!< tlhat weekend. Comon.sense indicates that the grievance should relate only to off-duty time on a weeker.d when the officer was working as a Duty Officer since he would be on duty during the day i;l any event. Evidence given corxerning t'ne izstructiods given to t?.e five Conservation Officers in the Cambridge District as to the Duty Officer ?ro$ran Is somewhat in con:Lict. The oosition taken by management, speaking through Xr. Xpliag, the Fish and Xildlife Supervisor, was that in addition.to the DemorandLq set out earlier of Xarch 20, he told the Conservation Officers :hat they were free to go to garties to the beach, to a ?ub, etc., as long as they responded as soon as ;ias reasonable to the ?aqer. :-;e icdicated - j - e 1 that they were eqected to i;et in Couc?. xith sezio: .7ar.aqezs:.t and that if they did not wish to go oil= 3.n a.1 e~erqer.cy call they could try to find somebooy else. In addition, if the:/ .iere scheduled to work as Duty officers on a particular iieekend -hey could pass this duty off to some oder person, as Icng as she pager 'was operational during the weekend. 3e zIs0 +<ica=e;- that the Duty ,3,tfi cer contest was a coizaunicatL:n ccnceot Ed that there zere situations which could arise ;-:Tich -,0:2ld be op &l emergency nature. In this case the Conservation .3fficer ~2s entitled to use his own judgement and go to the scene and ;r‘o*u:ld be paid on the overtime rate. The evidence of the grievors was that tSere eras some ambiguity as to the speed'with which they were required to answer calls on the ?ager and that t,ey felt that they '.~e:e " required to respond to emergency calls and did feel somewhat constrained by being on duFy in the sense that they could :ot leave the i.zunediate geographical area of the district. They apparently felt that they had to hold themselves in readiness to go out on emergency calls. we were very ispressed by the ;rofessicn- alism shown by these officers vho clearly take their job se:iousl? and are a credit to the Ministry. One of the grievers ?I=. Novak in iact did so out on four eneryency calls during tke reie-rant period and 'was aaid at the overtixe rate. Se clearly exercised sound judqent in doing so given the natnre of the compiai:ts. 3e qdstion involved in t:?is hearing is, hcweve:, :ger* they required to be “a-ailable for i7neGate recs..ll to wcr:;" _1 rl - 6 - wit‘nin the xeani-7 of Article 15, t:he Standby Iize ?r.o.;ision, :c were tSev recuired to be "reasonably available for recall tc i;cr:<" * - within the meaning 0: Article 16, the On-Call 5czy ?rCvLsion. We feel tSat since the Duty Officer was normally the ConservatLon Officer scheduled to work on the weekend, the diszu?tio?. of the weekend .tioulZ not be excbssive in any event. Xaza,-emezz iZlCC3C25 that it oniy required thea to be reasonably available, and that it WOUid not have disciplined anybody if that person ha< not been imediately available i:: a ?articuiar situation. The izct that the Conservation Officers were required to res?ont to 2.e =ager quickly does not 3ean that they we:e required to imediately proceed to emergencies. In such a situation thev were authozized to use their best judgment and naturally if they :ould zot fi?.d somebody eise who would go to the scene, would nczally go the+eLves. In such a situation they would be gaid with the overtizc rate. We feel that the concept ofstandby?ay is zesezved for those situations in which an enpioyee is required to virtually sit at home by the telephone,"ready-to-go". An exaiipie given during t3e Searing was a situation of a fire crew on alert bring a fir2 emergency. To quote the language of Zamieson, CSS 162-77, there was here "a full range of flexibility available to them". If the employees Sad been specifically instr;ct?d to stay 7.0~2 ar.d be near the telephone during the off-duty hours, tse res.ult mig:;t well have been different. Indeed if we felt on the evidence that the flexibility Lhad net/e= been communciated to the Conservation Of'fiters , tSe result kqht xeil ?mve been nore Iike t?.e case .a< Aooele 5SP 147-73. Ir. the rtsult, howe:'er, tk2 yi.e.,*s.-.ce is liszis52t n II 1. Q\, ,,J/ ?2te+~lyaarton irice-C'tiairman I, cmcur,&L,-..- :~F/! D. Collon kenber