HomeMy WebLinkAbout1985-0863.Walker et al.87-12-030863/85, 0865185
0866185, 0867/85
0868/85
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
. Before
THE GRIEVANCE SETTLEMENT BOARD
Between:
Before:
OPSEU (G. Walker, J. R. Davis,, C. Hobbs,
W. Catlender and J. Young)
and
The Crown in Right of Ontario
(Ministry of the Solicitor General)
B. Kirkwood Vice Chairman
T. J. Kearney Member
M. F. O'Toole Member
For the Griever: A. Ryder
Counsel
Gowling and Henderson
Barristers and Solicitors
For the Employer: R. Itenson
Senior Staff Relations Officer
Staff Relations Branch
Management Board of Cabinet
Hearing: May 20, 1987
Griever
Employer
DECISION
The grievers sre coroners’ clerks and morgue attendants who work in the Coroner’s
building located at 26 Gmnville Avenue, Toronto. The grievers were seeking a one-half hour lunch
,. w away from their office.
The coroneh clerks and morgue attendants arrange for the dispatching of coroners, and
correlate information received from the police, the public, nursing homes, hospitals, and pther
institutions. They take mports &om the c4xona obtain any fmthcs i&mat& that is mpired for
an autopsy. They also look afterdead bodies upon arrival at the morgue and arrange for their
storage. Due to the nature of their employment thete are five full time and two part-time coroners’
clerks and morgue attendants who provide twenty-four hour coverage through fourshifts. During
the day the& are two people on the day shift, one who works from 8:OO a.m. to 4~00 p.m. and the
other whose hours are flexible but whose hours essentially are from 990 am. to 500 p.m. There
is only one person for the evening shift from 400 p.m. to 1290 a.m. and one person on the night
shift from 12~00 am. to 8:00 a.m.
They work at the dispatch office and the morgue on the main flq~ of the coroner’s
building. The dispatch office is enclosed by plexiglass and is visible to the pub&. The morgue is 3
located in the rear of the building. On the main floor there is also a kitchenette in the stationary
room and cloakroom directly off the offie when a coffee maker, microwave and hotplate are kept.
There are two lunchroom’s in the building; one on the third floor which is locked after 690 p.m.,
and another in the basement beside the pathology deparrmtnt.
hitidly the issues befom the Board at the commencement of the hearing were whether the
grievora were entitled to a lunch break and secondly whether that lunch break could be taken away
from the premises. During the course of the hearing. it became clear that there was no issue as to
the entitlement of the employees to a thirty minute break as the employer expected the grievors to
take a thirty minute lunch break dllring the course of their shift, although there was no scheduled
break.
During the day shift, the timing and the location of the break was at the employee’s
discretion and was only limited by the necessity that there always be one of the coroner’s attendants
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on duty at all times and by their tesponsibility to take these breaksat times which were not busy.
For the most part, the gfievors did not take their lunch outside the building; however when their
work perqits they mned.mes go to a coffee shop in the area two or three times a day and bring their
coffee back to the office. When they take their breaks on the premises, the breaks can be disrupted
by telephone calls or by having to attend to inquiries by the public.
The problem arose during the evening and night shifts as there was only one person on
duty and as a result the morgue would not be. secure if &at person left the working area. A security
.guard is stationed at the front door during the evening snd night shifts and he ensures that no one
improperly enters the building through the front door and that there is no access to the Chief
~Coroner’s office. He is able to watch the tit door of the building. but he is not able to watch the rear
d? which is located in the morgue. Therefore, as a result, although the attendants ha+e the right
to and are expected to have thirtyminutcs in which they are not performing their job functions and
may have coffee, watch television. read their newspaper, or do whatever they want, they are
. . expected to remain within the confines of their work area for their break. They arc not allowed to
eat at the kitchenette, but they can only heat up their food and bring it back and they must remain in
theworkiugarea
‘ll~e grievers submitted that if a phone were placed in the basement lunchroom, fhe security
guard could handle any contact with the public that might be required in the evening hours, as they
could be reached by the security guard through a bellboy system. Similarly they could deal with
homicides, suicides and police through bellboys during that time period. The grievers suggested
that any telephone calls could also be dealt with in the lunchroom if a forwarding system were
placed ou their telephones. The employer was unable to accept these propo& as they did not ..’
address the safety issue. The rear door of the morgue could still be accessed without either the
guard seeing an intier or without preventing entry if an alarm rang, Similarly the employer was
unable to accept the griever’s proposal that the attendant on duty would arrive fifteen minutes earlier
and leave f&en minutes later to allow for the break as that proposal still does not resolve the
security problem.
The gtievors alleged that the failure to have a one-half hour lunch break away from the
place of employment was contrary to the health and safety standards in article 18.1 of the collective
agreement which states:
18.1 The Employer shall continue to make reasonable provisions for the safety and health
of its employees during the hours of their employment. It is agreed that both the Employer and the Union shall co-operate to the fullest extent possible in the prevention of accidents
and in the reasonable promotion of safety and health of its employees.”
. . . Page 4
The union also argued that the rule was unreasonab~ and should be set aside. The union
argued that it was a necessary health precaution to have a 7 to get away from the pressures of the
job where them is no privacy and where there is a pervasion of nauseating fumes from the bodies to
the office area. Furthermore the union alleged that as .the fir/ids from the bodies could be tracked
into the office, there was also the danger that the grievers could get contagious diseases such as
hepatitis by eating in this office area In addition, their counsel submitted that although Section 22
of the Employment Standards Act, R.S.O. .1980, c.137 was not applicable, that act creates a
minimum community standard which should be accepted
‘Ihe employer submitted that the union was unable to dislodge the onus upon it to show that
there was any eviden& of a health and safety problem and ao&rdingly the grievance should be set
aside. Further, it was the employers view that the argument could not be made that the work rule
was unreasonable as it was enlarging the substance of the grievance and the Board was .without
jurisdiction to consider the reasot&kness of the rule.
’ In the Boards view we found that we had jurisdi~ to deal with the interpretation of
article 18.1 of the Collective Agreement and to demrmine. whether or not the Collective Agreement
was viola&L
The union was unable to show that there was a health and safety standard violation by
requiring the employees to take the breaks in the office. When the employees are hired they are
given a vaccine against hepatitis and are taught health and safety precautions. They learn how to
handle the body, the precautions that must be taken, the use of lab coats, gloves and surgical
masks. They are taught about the dangers and risks of handling bodies and how to minimize those
risks. One employee did catch hepadtis approximately four and a half years ago but there was no
evidence to indicate whether the hepatitis occurred before or after the coronds office moved into
the new building where it is presently lccated, nor that it arose from the job, let alone from having
lunch in the office. There was no evidence that the employeds were in danger of contracting any
virus if they did their job properly, and there was nothing to indicate. that there was any health or
safety hazard in having their tweaks in the office. In addition; dunng the course of the four and a I
half years in which the coroners office was working in this building there had been no work related
incidents in which worker ’ s compensation had been sought ~for any breach of safety hazards. In
addition, it is interesting to note that although there is a join{ comminee which deals with safety
matters, at no time had the lunch breaks ever been raised as an issue.
We also do not find that the odours which sometimes permeate the office are such as to
create a breach of the health and safety standards. It may be preferable to eat-in an area where the
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smells ax fresher, but there was no evidence that the environment was unhealthy or unsafe. Even
if the Board had the jurisdiction to find reasonable solutions to a problem as opposed to interpreting
the collective agreement, the solution proposed by the union, to eat in the basement beside the
pathology depamnent where there is a continuous odour of formaldahyde, does not resolve the
problem.
The nature of the attendants’ jobs requires that there is twenty-four hour coverage md
therefore there cannot be thitty minutes during each shift when there is nobody on duty. In this
sense the prievors’ ~sponsibilities to the public are similar to that of police officers. In the cise of
dPSEU (Union Grievance) and The Crown in Right of the Province of Ontario
(Ministry of Transportation and Communications, (G.S.B. No.724/83) (J.W. Samuels),
twelve tdftc patrollers who ran the Ministry’s emergenti patrol in Metro Toronto received
compensation for an unpaid meal break. The Union argued that there was no real I@ break as the
patrollers werenot nzsponsibility free during the peril but had to keep the dispatchers informed of
their whereabouts, to have messages nlayed to them and to continue to consider themselves on shift
and on.occasion would have their lunches intemtpted. In that case the grievers submitted that the
patrollers’ jobs required continuing responsibility throughout the day which included the time
during their meal breaks, and that they should be paid on an overtime basis. At page 11 of the
awad Mr. Samuels nzcopkd the continuing responsibili~ of the pa&h
“The job necessarily involves conrinuing responsibility throughout the day.
Even if they are required to get off the road for a half an hour to eat and
relieve the stress of the job, they are not txsponsibility &c. ‘Ihe traffic and
emergencies don’t wait while a patroller eats. The vehicle that is always
there must be taken care of.” -\
Similarly, these g+mrs cannot be responsibility free during their breaks if they are on the
evening or night shifts. If an attendant was to take a break in the lunchroom in the basement the
attendant could still handle the telephone calls thmugh a forwarding system. As there is less contact
with the public at night, although there would be a delay the attendant could still be summoned by
the security guard through a bellboy system should a member of the public anive. The solution
proposed by the union does still not resolve the security issue. &er Section 21 of the Anatomy
Act, R.S.O. 1980, c.21. the morgue has to be secure at all times. Therefore although it is not
speci!ically stated in the job description, the requirement that the bodies are secure at all times is
incumbent in the nature of their job. They cannot do this if the only attendant on duty is in the
basement. Despite the fact that the rear door is electronically locked and there is an alarm on the
door there have been two instances of unlawful entries since the morgue was moved into the
coroner’s building approximately five years ago.
In the Boards view we do not have the jurisdiction to decide whether the rule was
reasonable in these circumstances as there was no evidence that the health and safety of the
employees were jeopardized. Nor do we have the jurisdiction to determine whether a solution is
reasonable. The jukliction of the Board is defined by statute and by the collective agreement. AS
in the case of Shannon Haladay and The Ministry of Industry & Tourism,
(G.S.B.No.94fl8) J.P. Swan, the jurisdiction of the Board was examinedit Pages 3 and 4:
“Fit we are vested with jurisdiction to hear and determine disputes about then
interpretation, application, administration, or alleged contravention of the
Collective Agreement; this jurisdiction arising under Section 18 of the
Crown Employees Collective Bargaining Act. &cond, beyond that
jurisdiction and independent of it, we have the jurisdiction set out in Section
17(2), quoted above. We have no other authority to intercede between the
p&es; we do not have any inherent jurisdiction to do justice - or what we
may conceive to be- justice - or to provide remedies, no matter how
desperately a particular case may cry out for relief. The Board is a creature of
the statute and derives its jurisdiction solely from the statute. The only
exception to that rule is that the parties may provide for certain matters in a
collective agreement and our jurisdiction is thus broadened to the extent that
they have done so. Beyond this circumscribed jurisdiction, the Boards legal
authority is nonexistent, and any decision rendered beyond those limits
would be a nullity and liable to be quashed before a court”
In a broad- vein, in The Crown in Right of Ontario (Ministry of Community
and Social Services) and Ontario Public Service Employees Union (Michael W.
McMurter), White, J. - Divisional Court - Action No.3l5/85 the griever challenged the policy of
the Minisky and sections of the Public Service Act, RS.O.1980 c.418 which @nited his political
activities. Whereas the Grievance Settlement Board held that it had jurisdiction as the issue was a
matter of discipline, the Divisional Court held that the Grievance Setdement Board did not have any
jurisdiction as there had been no discipline and that the Board was not the appropriate forum to deal
with an inquiry as to the policy and the statute.
In summary our jurisdiction is limited to interpreting and applying our interpretation of
article 18.1 to the situation at hand. In our view as there was no violation of the health and safety
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standards and the grkvance fails.
DATED at Toronto this 3 day of December, 1987.
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R4.F.OToole, MFJBER
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