HomeMy WebLinkAbout1986-0379.Malette.88-07-05I ,_.,: .:-I_ ~%Tyh.;k.E ” mm SETTLEMENT
BOARD
IN TH%,MATTER OF AN ARBITRATION
Under
TEE CROWN RHPLOYEBS COLLECTIVE BARGAINING ACT
Before
TRE GRIEVANCE SETTLEMRNT BOARD
OPSEU (I?. Malette)
-and-
Grievor
The Crown in the Right of Ontario
(Ministry of the Environment) Employer
For the Grievor:
For the Emplover:
Hearing:
J. Forbes-Roberts Vice-Chairman
G. Nabi Member
D. Montrose Member
J. Mosher
Counsel
Gowling and Henderson
Barristers and Solicitors
R. Younger
Staff Relations Advisor
Staff Relations/Safety
Ministry of the Environment
October 2, 1991
DECISION
The parties agreed to the following statement of Facts
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a.
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10.
The grievor is employed as an Environmental
Officer Technician (E.T. 3) in the Ministry's
offices in Sudbury.
The grievor's headquarters are designated as
the Ministry offices at 199 Larch Street in
Sudbury.,
The grievor resides at 940 Windermere Cres.
In Sudbury.
On March 4, 1966, the grievor attended a
meeting in Cartier, Ontario. The meeting
was related to the regular performance of
duties described in this grievor's position
description.
The meeting in Cartier was scheduled to begin
at 8~30 a.m.
The grievor's daily hours of work are normally
commenced at 9~15 a.m. and end at 4:3Q p.m.
equating to a daily requirement of 7 l/4 hours
per day; 36 l/4 hours per week.
On March 4, 19%6, the grievor spent 1 l/4
hours travelling to Cartier prior to the
commencement of his normal starting time.
The grievor's hours at work fall within
Schedule "A" of the Collective Agreement.
On the date in question, the grievor op-
erated a Ministry vehicle to travel to Cartier
to attend a meeting.
The grievor was paid for travel time at his
regular rate of pay for the time in dispute.
The Union did not adduce viva vote evidence. Through two
(2) witnesses, the Employer did put into evidence certain
additional facts.
The Employer called Mr. F. Shantz who was at that time
the Senior Environmental Officer in the Sudbury district,
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and the grievor's supervisor. Mr . Shantz exnlained that the
E.77'. 3 function was to go out into the field and perform
inspections of various facilities to ensure that they are in
compliance with the provincial legislation. An E.T. 3 is in
charge of scheduling his or her own inspections. While "out of
regular hours" inspections or tra-ve: is discouraged, it is
recognized that it is sometimes unavoidable.
The supervisor is kept appraised of the E.T. 3's activities
on the basis of simultaneous retrospective and prospective
weekly reviews. That is to say that on Friday, they would
review the previous week's activities and inform him of their
proposed schedules for the following week. Mr. Shanz was aware
of the grievor's proposed trip to Cartier. The Winistry
vehicle used was not exclusively the grievor's,.but rather
formed part of a poo:. He was reqtiired to sign it out.
The :ssue before this Board is the manner in which the
grievor should be reimbursed for the time spent in transit 2
Cartier. As indicated by the agreed Statement of Facts, the
grievor was paid for "travel time" pursuant to Article 23 of
the collective agreement. The relevant portions of that
Article provide:
ARTICLE 23 - TiME CREDITS WiiiLE TRAVELLING
23.1 Employees shall be credited with al;
time spent in travelling outside of
iJorking hours 'when a.u:horized by the $!irListry.
23.3 When travel is by aiitomobile and the
employee travels directly from his home
or place of employment, time will be credited from the assigned hoiir of de-
parture until he reaches his destination.
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23.6 All travel:iag time shall be paid at the
employee’s basic hOGi+lV waqe or, where
mutually agreed, by compensating leave.
(emphasis added)
The employer elected to reimburse the grievor under this
provision of the agreement.
As indicated by the Agreed Statement of Facts, the grievor
is a Schedule "A" employee. This Schedule governs employees
who, due to the nature of their jobs, work irregular weekly
hours. Their hours which can be "...normally irregular" are
pooled and then averaged over a twelve month period. This may
or may not ultimately produce a "...thirty-six and one q~uarter
(36 l/4) hour week or a fourty (40) hour week average over the
twelve (12) month calendar period." In the event that there
are excess hours in the week, they are paid at overtime rates,
rather than being ssent in transit added to his yearly pool of
hours. Thus, the overtime rates are potentially attracting.
Article 13. 2 defines overtime as 'I. , . an authorized period
Of Wm.. .A The narrow issue becomes: was the grievor
"working" in the course of his journey to Cartier?
For the following reasons, we concl-ude that the grievor
was "working" within the meaning of Article 13.2.
Firstly, driving is an integrai part of his job. One
obviously cannot perform field inspections unless one gets out
into the field. It was acknowledged that inspections can be
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hard to arrange, and sometimes "out of hours" travel was
necessary. The grievor's supervisor was aware of his proposed
trip to Cartier, and did not object to the timing.
It seems clear that if the grievor had spent the disputed
one and one quarter (1 l/4) hours physically performing an
inspection, he would be considered to be "working." Sure;y the
fact that he could not perform that function withoil: incurring
that time in transit renders the inspection and the travelling
all of a single piece.
Secondly, the grievor had responsibility for a Ministry
owned vehicle. The case law is well settled on this point. As
stated by,Professor Samuels in re: Clements (G.S.B. 3701'34):
It has been established oince Marcotte, 5h:?S,
that where an employee is the driver of a Ministry
vehicle, and responsible for that vehicle, the
driver is entitled to "overtime" for travel outside
regular working hours. There appear to be no cases
which suggest otherwise, and we agree with this award.
'Until the journey is over, the employee is not re-
leased from responsibility to the employer, and is
therefore still "at work."
(at page 3)
We are not inclined to deviate from this view.
The grie-vance is hereby allowed. The Employer is di?ected
to credit one and one-quarter (1 li4) hours of work to the
grievor for the averaging period ending March 31, 1386.
Dated at Toronto, this 5th day of
L %_..
G. Nabi, Member