HomeMy WebLinkAbout1987-0045.Stahl.88-02-10 DecisionTELEPHONE? 416/598- O688 180 DUNDAS STREET WEST, TORONTO. ONTARIO M5G 1Z8 -SUITE 2100
0045/87
IN THE MATTER OF AN ARBITRATION
Under
I
Before
Between : OPSEU (W. Stahl) Grievor
Before :
For the Grievor:
For the Employer :
Hearing:
.and
The Crown in Right of Ontario
(Ministry of Health)
. . J.W. Samuels Vice-Chairman
J. McManus . Member
A. Stapleton Member
M. Ruby
Counsel
Gowling & Henderson
Barristers & Solicitors
L. Pisapio
Regional Personnel Administrator
Ministry of Health
Employer
January 12, 1988
.
DECISION 2
This case gives this Board yet another opportunity to comment on the
distinction between "travelling time" and "overtime" and the application of
these concepts to a situation where an employee is driving a Ministry vehicle
outside of his regular working hours. Under Article 23.1, employees are
"credited with all time spent in travelling outside of working hours when
authorized by the Ministry", and this time is paid at the employee's basic
hourly rate (Article 23.6). On the other hand, Article 13.2 defines
"overtime" as "an authorized period of work", and the overtime rate is one
. and one-half times the employee's basic hourlv rate (Article 13.1): When an
employee is driving a Ministry vehicle after his regular hours of work, is this
"overtime" or "travelling time"? This case involves events on three evenings
in January 1987, when in total 3.5 hours were spent driving Ministry
-vehicles.
Is the grievor entitled only to travelling time (a credit of 3.5 hours,
which he received)? Or, is he entitled to overtime (a credit of 5.25 hours---
that is, an additional 1.75
hours)?
The grievor is a social worker at the Brockville Psychiatric Hospital.
In January 1987, he was working on 'the forensic ward, which is a medium
security facility for some 36-40 patients. Six or more of these patients were
living in the community. The grievor’s job was to prepare reports
concerning
the patients for Provincial Court and the Lieutenant-Governor's
Board
of Review, and to counsel the patients. His normal working hours
were 8:15AM to 4:30PM.
For those patients living in the community, he made regular visits to
check on their living circumstances, and their emotional and physical health.
Generally, these visits had to be made in the evening, and they would be
authorized in advance by management.
On such an evening, the grievor would have supper at home, then
return in his own car to the Hospital to pick up a Ministry vehicle (arranged
in advance with the transport department of the Hospital), make his visit to
the patient, return the vehicle to the Hospital, then drive his own car home.
-
The Hospital practice was clear that social workers should use Ministry
vehicles. This practice was confirmed by Mr. Peter Carter, the Hospital's
Chief Social Worker and the grievor's supervisor. This was done for several
reasons---it was. cheaper than paying mileage allowances to employees for
use of their own vehicles; and often insurance carriers would not cover
patients travelling in private vehicles owned by staff. As far as the grievor
knew, this rule was very strict and, since he was employed by the Hospital in
July 1985, he had never used his own vehicle. Indeed, if a Hospital vehicle
was not available, he would reschedule his patient visit. There is no doubt
that, for the three evenings involved in this case, the grievor was both
authorized and required (expressly or implicitly) to use Ministry vehicles.
Up to late-December 1986, the grievor received overtime for all hours
from the time he picked up a Ministry vehicle until he returned the vehicle.
Then the Hospital's practice changed, and he was told that henceforth he
would get only travelling time for the period actually spent driving. He
would continue to get overtime for the period of clinical work with the
patient. So he grieved his treatment for three evening visits in January 1987.
This Board has considered the interpretation and application of
Articles
13 and 23 a number of times in similar situations. We have dealt
with claims to overtime by employees who were passengers in Ministry
vehicles after their regular working hours (Cowie, 99/78; Buchanan, 34/78;
and Anwyll, 406/83). And we have dealt with claims to overtime by
employees who were drivers of Ministry vehicles after their regular working
hours (Marcotte, 54/78; Eaton, 646183, and Clements, 3 70/84).
In Anwyll, 406/83, the Board reviewed the cases to that point and
concluded that the general principle is that an employee is entitled to
overtime, rather than travelling time, when the employee is undertaking
responsibilities during the course of the journey. "In each particular case,
the issue becomes what is the "work" of the employee involved" (at page 6).
Thus, the passenger may be entitled to overtime if, as in Anwyll, the
employee is a fire alarm mechanic, for whom travel is an essential and
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inherent part of the job, and the vehicle is loaded with special equipment for
which the grievor bears responsibility as well as the driver.
With respect to the employee who is driving a Ministry vehicle after
regular hours, generally the employee is entitled to overtime credit if travel
is part of the employee's job and if the employee is responsible for the
vehicle.
In Marcotte, 54/78, the grievor was a correctional officer who claimed
overtime for
a period during which he was driving a Ministry vehicle home
after escorting certain inmates out of town. The Board found that the
grievor was still "at work", and therefore entitled to overtime, because (at
page 9):
Driving this particular vehicle cannot be
characterized as essentially a responsibility-free
activity. This was not a vehicle provided to the
employee to effect
all of his travel requirements the
way a "company car'' might be. This vehicle was
not an ordinary passenger car and it, together with
a credit card, had to be returned to the employer
with the appropriate documentation completed.
Moreover it was the grievor’s responsibility to
transport
a fellow employee back to Sudbury. In
these circumstances we do not think the situation
can be analogized to the gratuitous provision by the
employer of transportation to the grievor back to
Sudbury. Rather,
the Sudbury jail was getting its
sixteen passenger vehicle back, possibly for use by
others, and it was receiving the vehicle back
in the
same condition it was in when entrusted to the
grievor's custody.
There are several comments to be made about this decision. Firstly, in
our view, the essential elements in Marcotte were the fact that escort duty was
a regular
part of the grievor's-job, and the grievor's responsibility for the
safe operation of the Ministry's vehicle. Secondly, it was not critical that it
was
a sixteen passenger van. The seating configuration does not determine
5
the responsibility of the grievor. The employee must bear the same
responsibility for a four-seat automobile
as he does for a sixteen passenger
van. Thirdly, it was not critical that the grievor had to transport
a fellow
employee back to Sudbury, though this fact did strengthen the situation in
Marcotte. Fourthly, the Board does suggest a distinction in the case of a
"company car", We understand this to be a reference to the situation where
an employee is given a car permanently along with his job. In such a
situation, it would not make sense to consider use of the vehicle outside
regular working hours
as overtime. The employee has the vehicle 24 hours
per day. It is a "benefit" of the job.
In Eaton, 646/83, the grievor was a heavy equipment operator. He
attended an out-of-town health and safety meeting, which ended at his regular
finishing time.
The grievor then took one hour to drive home in a Ministry
vehicle,
and was credited with travelling time for this hour. He claimed
overtime instead. The Board decided that the governing provision was
section 8(12) of the Occupational Health and Safety Act, which deemed time
"necessary to attend meetings of the committee" to be "work time", and
therefore the grievor was to be treated in the same way as he would have been
treated if he had been
out of town for some other work-related reason. The
Board concluded that the grievor was entitled only to travelling time under
Article
23 of the collective agreement. The grievor's regular job did not
require travelling as a necessary incident to its performance, thus the time
spent
in the Ministry vehicle was not a "period of work" under Article 13.
In Clements, 370/84, the employee led a team which conducted soils
tests
in the field. The team, with the Ministry vehicle, was out in the field
from mid-April to mid-November. During regular working hours, the tests
were done, and before and after these hours the employee drove the Ministry
vehicle to the work site from the local motel where the crew were staying,
and back from the work site to the motel. The Board decided that the
employee was entitled to overtime credit for the hours spent on the road
outside of regular working hours. The Board said (at pages
3-4):
6
It has been established since Marcotte, 54/78, 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
released from responsibility
to the employer, and is
therefore still "at work".
The Board went on to Say (at pages 5-6):
The field work depends on the well-functioning of
the Ministry vehicle ........ ..Mr. Clements is
assigned the vehicle for the season and he is
responsible for the vehicle, its contents and crew.
It is simply not reasonable to say that he is not "at
work" during a period in which the Ministry is
holding him responsible for all of this
property. ........ He can't just leave the work site at
the end of his regular hours. He has to get the
vehicle, contents, and crew safely back to the
motel.
Again, we have the two elements---travel as a necessary part of the job, and
the employee's responsibility for the Ministry's vehicle.
These elements are present in our case. The grievor's job requires that
he visit patients
in the community on a regular basis. He is required to use a
Hospital vehicle. Indeed, this requirement means that the visit process takes
longer than if' the grievor could use his om automobile. When the grievor
leaves home after supper, he has to return
to the Hospital to pick up the
Hospital's vehicle, and then at the end of the evening he must return the
Hospital's vehicle to the Hospital before returning home. h argument, the
Ministry suggested that Mr. Stahl was not responsible for the vehicle,
because if anything went wrong he would simply have to call the Hospital's
transport department to correct the situation. But Mr. Stahl did have the
responsibility to call the transport department. If he drove recklessly and the
7
vehicle was damaged, he could be disciplined. He would have breached his
employment responsibilities if he failed to take reasonable care of the
Hospital's vehicle. If it was likely that the Hospital vehicle needed fuel during
the grievor's use, the grievor would be given the Ministry's credit card. He
had a responsibility to fill up the gas tank. He couldn't simply abandon the
car when the fuel tank was empty. In sum, time spent driving the Hospital's
vehicle was part and parcel
of the grievor's evening visit to the patient. The
driving time was an integral part of the grievor's "period of work".
If the Ministry insists on the grievor using a Ministry vehicle for visits
after his regular working hours, then the grievor is entitled to overtime for
all the time he spends driving a Ministry vehicle and making his patient visit.
For these reasons, the grievance is allowed. The grievor is entitled to
1.75 hours pursuant to the overtime provision of the collective agreement.
Done at London, Ontario, this 10 th day of February I
1988.
J. W. Samuels, Vice-Chairman
A. Stapleton,rMember