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Home My WebLink About1987-1320.Cawker.89-05-25! ; ~ EMPLOYES DE IA COURONNE DE “ONTARIO CQMMISSION DE SEITLEMENT REGLEMENT DES GRIEFS IN TEE BATTER OF AN ARBITRATION Under TEE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before TEE GRIEVANCE SETTLEEENT BOARD Between: OPSEU (Gawker) - and - Grievor The Crown in Right of Ontario (Ministry of Transportation and CommunicationS) Before: APPFARING FOR TEE GRIEVOR: APPEARING FOR TEE EHPLOYEB: BEARING: February 11, 1988 Employer J. Forbes-Roberts - Vice-Chairperson T. Trams - Member M.P. O'Toole - Member J. Mosher Counsel Gowling h Henderson Barristers & SOliCitOr6 D. Francis Counsel Winkler, Filion 6 Wakely Barristers 6 Solicitors -I?- DECISION -- The majority of the relevant facts in the instant case are found in the folloving Agreed Statement of Facts very helpfully submitted by counsel. STATEMENT OF AGREED FACTS 1. This grievance is properly before the Board and there are no objections to the Board’s jurisdiction to hear this matter. 2. The Grievor is employed in the classification of Tech )-Survey in the position of Construction Technician. The Grievor is employed in the Employer’s Central Region. 3. At all material times the Grievor was assigned to perform inspection duties at the Ministry’s project at Kirby (Highway 35 and 115),near Peterborough. Kirby was the field office for the particular job. 4. The Grievor’s designated job headquarters for the Kirby project was Port Hope. -3- 5. The Grievor was authorized to travel for sixty (60) minutes per day, being the time required to travel from his designated headquarters to the Kirby field office and. return. 6. The Grievor's normal hours of work were eight (8) hours per day and forty (40) hours per week (Schedule 4). 7. The Grievor was one of four (4) bargaining unit employees assigned to work on Easter Monday, April 20! 1987. 8. The contractor's hours on April 20, 1987. were from 7:00 a.m. to 7:00 p.m. 9. Easter Monday is a designated holiday pursuant to Article 40 of the Collective Agreement. 10. On April 20, 1987, the Grievor was required to drive his own. vehicle from his designated headquarters (Port Hope) to his assigned job location (Kirby). 11. The Grievor travelled to the job site from 7:30 a.m. - 8:00 a.m., worked from 8:OO a.m. - 7:00 p.m. with a one (1) hour unpaid lunch break, and travelled home from 7:00 p.m. - 7:3O p.m. 12. On April 20, 1987, the Grievor worked for ten (10) hours and traveiied for one (1) hour between his designated headquarters and the job site. The Grievor was paid at two times his regular hourly rate pursuant to Article 19 of the Collective Agreement for eleven (11) hours on April 20, 1987. The Grievor also received the appropriate compensating time off pursuant to Article 19.2 of the Collective Agreement. 13. The Grievor requests that he be paid four (4) hours travel time pursuant to Article 23.5 for the one hour spent travelling on April 20. 1987. 14. On January 5, 1987 a memorandum from J. Smrcka, Manager, Construction Office, was issued to all construction staff. A copy of this memo is attached as Exhibit 1. The memo indicated that “Travel time on a statutory holiday or a day off is authorised only within working hours”. The Grievor was at all material times aware of this Memorandum. CI EXHIBIT 1 -5- memorandum C. Henderson 0 v 1 O”laWd CENTRA~L REGION Telephone: 224-757 1 To: All Construction Staff Dare: 87-01-05 I?-: Travel Time on.a Day 011 or on a Str:atorv Holidav _- .._ W memo regarding the above mentioned subject and issued 83- 11-29 is hereby cancelled. Travel time on a statutory holiday or a day off is authorized only within working hours. JSlbss Constrilction Difise -6- Additional relevant facts revealed in the course of the grievor’s examination and cross-examination are as follovs. On the day in question Mr. John Cameron was the Senior Project Supervisor on site. It was he who on April 16th had asked the grievor to vork on Sunday, April 20th. Mr. Cameron did D.& hovever,mention any particular start or finish hours of work for April 20th. On April 20th the grievor was aske~ to stay beyond 5:00 p.m. by the Senior Inspector, Mr. Hopkins. Mr. Hopkins was a bargain- ing unit employee and had no authority to dictate when the gr levor was to travel. Only Mr. Cameron could do that. The grievor admitted that he had not received express authority to travel outside of vorking hours on April 20th. Article 23 of the collective agreement states in part: Article 23 - TIME CREDITS WHILE TRAVELLING 23.1 Employees shall be credited with all time spent in travelling outside of vorklng hours vhen authorized bv the tllnistrv. . . . 23.5 When an employee is required to travel on his re- gular day off or a holiday listed in Article 48 (Holidays) he shall be credited vith a minimum of four (4) hours. (emphasis added) Union counsel argued that article 23.1 sets out certain global pre-conditions for payment of travel tlm;;ti”,:z t2;e; article 23.5 deals vlth specific situations., requires that there be (1) time spent travelling (2) outside of working hours, and finally (3) that such time be authorlzed by the Ministry. Obviously the grievor travelled. Because his normal shift was 8:OO a.m. to 5:00 p.m. the travelling was outside of working hours. Finally, because the grievor’s normal shift - from 8:OO a.m. to 5:00 p.m., there was an implied authorizatlon for travel outside of those hours. When these preconditions are met on an individual’s regular day off or a stat holiday, then according to article 23.5 he or she receives a minimum of four (4) hours credit for travelling. Employer counsel agreed that article 23.1 dictates certain pre-conditions but disputed that article 23.5 was merely a “clarity note” for 23.1. Rather he argued that article 23.5 creates a scheme of minimum reporting allowances, four (4) hours J *. -7- for persons who travel on certain days. Because the grievor was credited with eleven (11) hours at double time he clearly exceed- ed the minimum requirements of article 23.5 and it is inapplic- able. Counsel argued that we are then left vith article 23.1 and its pre-conditions. For the moment ignoring the first tvo, because the grievor was aware of the January 1986 Memo and testif ied that he had not received authorization to travel outside of working hours on April 20th it was argued that he cannot possibly meet the third and the grievance must therefore fail. We agree with Employer counsel’s interpretation of article 23. In order to bring article 23.5 into play at all an employee must have met the pre-conditions listed in article 23.1. Clearly one of those pre-conditions is authorization. Union counsel’s suggestion of implied authorization must surely fall in the face of the express prohibition contained in the January 1986 memo. (Indeed, absent that authorization and according to Fmolover counsel’s argument the grievor did not have to be paid for u travel time on April 20th, but that was not an issue before this Board. ) In any event article 23.5 deals vith specific guarantee of credits, not credits for time travellea. The grievor clearly received in excess of the minimum guarantee of four (4) hours credited and thus even if he did qualify under article 23.1 article 23.5 does not apply at all. The grievance is hereby dismissed. Dated at Toronto this 25th day of May. 1989. - / J. Forbes-Roberts, Vice-Chairperson -- T. Traves, Member