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HomeMy WebLinkAbout1985-0249.Ruscoe.88-01-11IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (DENNIS RLIXOE) Grievor and The Crown in Right of Ontario (Ministry of Education) Employer Before: R. L. Verity, Q.C. - Vice-Chairman I. J. Thomson Member H. Roberts Member For the Grievor: R. Ross Wells Counsel Gowling and Henderson Barristers and Solicitors For the Employer: A. R. Rae Senior Staff Relations Officer, Human Resources Secretariat. Hearings: Srpcember 15, 1987 November 25, 1987 -2- DECISION Dennis Ruscoe is a Residence Counsellor employed at the Sir James Whitney School in Belleville, Ontario. The school is a provincial residential facility for the hearing handicapped. Some, if not all, students return to their homes on designated weekends. 'For. the academic year 1984-85, Dryden students returned home every second weekend. Staff at the school are assigned escort duty to accompany students returning to and from their home communities. It is a requirement of the job of Residence Counsellor to participate in escort duty as and~when assigned. For the weekend of February 24, 1985, Mr. Ruscoe was assigned escort duty to accompany 13 students to Thunder Bay and Dryden on the Friday afternoon and to return to the school on Sunday afternoon. In addition, he was ' required to remain in Dryden at a local hotel from Friday night until I:00 p.m. Sunday afternoon when he met four children at the Dryden airport to begin the return tr ,ip via Thunder Bay. In a grievance dated March 8, 1985, Mr. Ruscoe alleged improper payment for escort duty on Friday, February 22, Saturday, February 23 and Sunday, February 24, 1985. The settlement requested was payment according to the Collective Agreement. -3- The Union maintained that the grievor was entitled to premium payment at overtime rates for all hours of escort duty. The Employer's position was that for Friday, February 22, the grievor was entitled to regular pay from 12:30 p.m. to 11:OO p.m. For Saturday, February 23, the grievor was paid from 6:OO a.m. to 11:00 p.m. at stand-by rates pursuant to Article 15 of the Collective Agreement. For Sunday, February 24, the grievor was paid stand-by rates from 8:00 a.m. to 1:00 p.m., and from 1:00 p.m. to 12 midnight at the regular rate of pay. No payment ,was made for Friday or Saturday nights as accommodation was provided. Due to an administrative error on the Employer's part, the grievor.was paid for work on Friday, February 22 at overtime rates. However, the Employer made no attempt to seek reimbursement for the alleged overpayment. Rather, it sought a declaration as to what should have bqen the proper payment. The Union withdrew the claim of improper payment for Friday, maintaining that the issue was now settled. Accordingly, the outstanding claim related to the method of payment for Saturday and Sunday. The grievor is paid an annual salary based on a 40 hour week, 52 weeks a year. However, the grievor is not required to work beyond the academic year from September to June 30. For employees such as the grievor, the relevant Collective Agreement contains a number of provisions modifying the normal hours of work and shift - 4 - schedules and providing for a salary averaging formula. Thi,s salary averaging concept requires a Residence Counsellor to work 2,080 hours each year, minus the number of hours for'statutory holidays and vacation entitlement. For the grievor, the magic number of hours of work is 1,872 hours in the 10 month period. Should the grievor work in excess of those hours he is paid overtime or granted lieu time. The relevant provisions of the Collective Agreement are: ADDENDUM ~0 TBE WORKING CONDITIONS AND EMPLOYEE BENEFITS COLLECTIVE AGREEMENT The parties hereto have agreed to the terms of this Addendum covering employees in classifications of Residence Counsellor 1, 2 and 3 in the Institutional Care Category and Nurses Special Schools in the ,Scientific and Professional Services Category. This Addendum shall be attached to and form part of the Working Conditions and Employee Benefits Agreement. The terms of the settlement are as follows: HOURS OF WORK (a) The hours of work shall be established by the Ontario Schools for the Deaf and the Blind, and they may vary depending on the situations which exist at the different schools. The normal hours of work per week shall be forty (40) hours plus an additional number of hours of work for the purpose of coverage requirement without penalty, recognixing that twelve (12) hours between shifts and two (2) consecutive days off may not be possible to schedule. Normal scheduling of ho.urs shall be September 1 to June 30. Scheduled sleep-in hours shall be credited at the rate,of fifty percent (50%) to a maximum of four (4) hours credit for those hours on sleep-in duty per night toward the required annual accumulation. Authorised overtime work which is required as a result of an emergency situation shall be immediately submitted for payment at time and one-half (1 -l/2) the regular hourly rates. This emergency non-scheduled overtime work shall not be included when totalling the number of credit hours required for the year as per Schedule A. Payment will normally be expected within thirty (30) days of submission. (b) (cl SCHEDULE A AVERAGING OF HOURS OF WORK The number of hours of work per week prescribed shall be computed as a weekly average over one (1) year, where the duties of a civil servant require: that he work more than the number of hours per week prescribed at regularly recurring times of the year, or that the number of hours per week be normally irregular. Averaging Period: The averaging period for each class and/or position: will conform to the twelve (12) month calendar period which reflects the work cycle of that &ass and/or position, and will be reported to the bargaining agent. Hours Worked Over Annual Requirement: At the end of the averaging period, any excess hours standing to the employee's credit over and -6 - above the annual hours requirement will be considered as overtime. Normally, the employee shall be paid for his overtime credits. Such payment shall be based on the basic hourly rate he was receiving on the last day of the averaging period. Compensating time off may be substituted for payment of overtime credits as follows: (a) Where there is insufficient‘work for an employee to the extent that his presence is not required for a period of time, in which case: - a ministry has the authority to direct that the employee take time off rather than receive pay for the overtime credits, and - such time off must be taken commencing during the first month of the next averaging period. (b) In circumstances other than the above and where the employee and his supervisor mutually agree to compensating leave, in ,which case the time off will commence: - within the. first month of the next averaging period, or - at an otherwise mutually satisfactory time. Hours Worked on Other Than Regular workdays: Any hours worked on a holiday or a day that is not a regular working day for the employee will be treated as overtime and based on the rate he was receiving when the overtime was worked. ARTICLE 15 - STAND-BY TIME 15.1 "Stand-by time" means a period of time that is not a regular working period during which an employee keeps himself available for immediate recall to work. 15.2 15.3 15.4 -7 - Stand-by time shall be approved in writing and such approval shall be given prior to the time the employee is required to stand by except in circumstances beyond the Employer's control. Where an employee is required to stand by for not more than the number of hours in his normal work day, he shall receive four. (4) hours' pay at his basic hourly rate. Where an employee is required to stand by for more than the number of hours in his normal work day, he shall receive payment Of one-third (l/3) of the stand-by hours at one and one-half (l-1/2) times his basic hourly rate. The school's Residence Program Co-Ordinator, D. J. Howard, approved and finalized work schedules for the academic year 1984-85 in June of 1984. All staff were provided with work schedules in June and again in August for the coming academic year. The escort duty schedule for the year 1984-85 was effective September 1984. There is no dispute that the grievor was scheduled to work on a non-rotating basis from Monday to Friday morning at 9:00 a.m. The grievor's schedule was as follows: Monday - 12 noon - 10:00 p.m. (10 hours) Tuesday - 10:00 a.m. - 10:OO.p.m. (12 hours) Wednesday - 12 noon - 11:00 p.m. (11 hours) Thursday - 12 noon with sleep over until 9:00 a.m. Friday (17 hours) In Sep'tember, 1984, the grievor was assigned escort duty for the weekend of February 22 - 24, 1985 and also on May 17, 1985. r- -8 - Mr. Howard testified that the school is a seven day operation, 24 hours a day. He stated that schedule changes are frequently made to accommodate the needs, both of the Employer and the employee. Accord,ing to Mr. Howard's testimony, the grievor's actual work week would vary from a minimums of 30 hours to a maximum of 60 hours depending on the school's activities. The school prepared a generally worded two page summary regarding escort policy and guidelines dated March 6, 1981 (Exhibit 7). Two provisions of the policy merit repetition: '- Staff are to consider the escort roster as part of their yearly schedule and should not make changes in this schedule unless approved by the Assistant Superintendent, Student Services. - Staff should remember that while escorting residents and while on duty for the school, they are acting as representatives of the school and their actions should therefor be acceptable." The evidence was contradictory with regard to the expectations of the grievor's activities while in Dryden. The grievor testified that he had been told by former Assistant Superintendent Hyalie Bryant to remain in his hotel room in order to be available for call back, except during meal or coffee breaks. However, he readily acknowledged that there was nothing to that effect in the school's written policy and guidelines. -9- Residence Counsellor Jeremias Faulkner testified to the same effect. Mr. Faulkner stated that he was told not to leave the hotel unless eating out. In addition, he testified that Mr. Bryant told him to inform the front desk if he utilized the hotel swimming pool. He recalled that on one occasion in Sudbury, he received a telephone call from the school while he was in the pool area. Hyalie Bryant, currently an Education Officer with the Ministry, acknowledged that he had given instructions to the staff regarding escort duty. Mr. Bryant testified that staff were not confined to a hotel while on escort duty, but were expected to be "reasonably available" in the event of call back. According to his testimony, if a staff member left the hotel, his whereabouts should be known to hotel personnel and the approximate time of return. In cross-examination, when asked if the policy may have been misunderstood, Mr. Bryant replied: "hogwash?. In his words it was "very seldom" that he made any attempt to contact a staff member while on escort duty. 'Mr. Howard agreed that staff were not required to remain in a hotel when on escort duty. He stated that staff must be reasonably available for recall but that stand-by time was basically free time to the employee. He interpreted "reasonably available" to mean being within the community. However, he did acknowledge that he had contacted various staff members on escort duty, either one hour after arrival, or one hour prior to departure. In Mr. Howard's opinion, staff were aware of management's expectations. - 10 - The Union argument focused on the concluding paragraph of Appendix 3, Schedule A, entitled "Hours Worked on Other Than Regular Work Days". The thrust of the Union's case was that the days assigned to the grievor for escort duty were not regular working'days and that work performed on those days should attract overtime payment. Mr. Wells maintained that the salary averaging formula was an irrelevant consideration to the issue in dispute. In addition, the Union contended that stand-by hours were hours worked. In support, the Union referred to Novak and Humphrey and Ministry of Natural Resources, GSB 141/81 (Barton); CUPE, Local 767 and Ontario Housing Corporation, GSB 159/77 (Adams); Cowie and Ministry of Correctional Services, GSB 99/78 (Adams); and OPSEU (Robert W. Anwyll) and Ministry of Government Services, GSB 406/83 (Samuels): The Employer contended that but for the error in payment for work on Friday, February 22, the grievor had been properly paid for the escort duty. Mr. Rae alleged that the proper payment for Friday, February 22 should have been 10-l/2 hours at regular pay. In support, the Board was referred to the recent Decision of Vice-Chairman Kennedy in OPSEU (Speers, Gall and McAlonen) and Ministry of Education, GSB 1461/85,~ 1462/85, 1463/85. Having reviewed the authorities submitted, this case has certain similarities with the Kennedy Decision, supra. In that case, the Board dismissed grievances by three Residence Counsellors at the - 11 - W. Ross MacDonald School in Brantford, who claimed entitlement to overtime pay for compulsory attendance at a professional workship in Hamilton. This Panel adopts the rationale of Vice-Cha irman Kennedy at p. 9 of the Decision as follows: . . ..Any change in the master schedule as originally drafted, whether initiated by the Employer or by an employee, would result in' an employee working on what the Union would define as 'not a regular working day'. That would virtually prevent any scheduling changes without attracting premium pay and could not be what the parties reasonably contemplated when drafting the collective agreement. The reality for employees who are in what amounts to a seven-day-a-week operation is that any day can be a regular working day depending on the schedule. To attract premium pay I there must be a particular provision of the collective agreement that grants it, such as the provision for double time for working an Article 48 holiday. If the schedule is properly changed within the constraints of the collective agreement, the newly scheduled day becomes a regular working day...." (Our Emphasis) In the instant matter, there was no argument that the Employer had violated the provisions of Article 10.1 of the Collective Agreement which deals with shift schedules and the Employer's right to change those schedules upon advance notice. Here, the Employer assigned escort duties to the grievor for the February 22, 1985 weekend in September of 1984. The grievor was told of his schedule change well in advance of the escort assignment. Accordingly, Friday, February 22 and Sunday, February 24, days when the grievor was - 12 - actually required to escort children to and from the school.became regular working days. As indicated previously, the Union maintains that stand-by time is in fact work-time. With respect, we do not agree. This Collective Agreement does contain a provision in Article 15 "stand-by time" which provides for payment to employees during "a period of time that is not a regular working period". In the instant matter, the grievor was given written instructions, in advance, of assignment to stand-by duty. In our opinion, the grievor's time spend in the community can be reasonably characterixed as "stand-by time" within the meaning of Article 15. Despite the contradictory evidence as to what is expected of staff on 'escort duty while in a community, the Board is satisfied that stand-by time is essentially responsibility free for the employee. The sole limitation is to be available for call-back or recall, if required. The evidence established that call-back or recall takes place infrequently. On these particular facts, there does appear to be a genuine misunderstanding on the part of employees as to what is expected of them during their stay in a community. For this reason, the policy and guidelines in place at the school should be revised to clarify management's expectations. The Employer is, we think, entitled to a declaration as to what should have been paid for work performed on Friday, February 22, 1985. Clearly, an error was made when the grievor received overtime payment. On the facts before us, we would agree with the Employer's v - 13 - contention; namely, the payment should have been 10-l/2 hours at regular pay. In the result, this grievance must be dismissed. DATED at Brantford, Ontario, thisllthday of January, 1988. R. L. VERITY, Q.C. - VICE-CHAIRMAN I. J - MEMBER