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HomeMy WebLinkAbout2011-2426.Malboeuf.13-09-03 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2011-2426 UNION#2011-0205-0020 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Malboeuf) Union - and - The Crown in Right of Ontario (Ministry of Labour) Employer BEFORE Nimal Dissanayake Vice-Chair FOR THE UNION Alison-Nielsen Jones Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Felix Lau Ministry of Government Services Legal Services Branch Counsel HEARING August 26, 2013 - 2 - Decision [1] The grievor, Mr. Paul Malboeuf, is employed as a Health and Safety Inspector. He has grieved that the employer refused to pay him overtime pay for work performed on May 19, and 20, 2011. This grievance proceeded to arbitration under the provisions of article 22.16 of the collective agreement. The relevant facts were presented verbally on agreement. [2] Article UN 14.1.1. reads: “Overtime” means an authorized period of work, calculated to the nearest half hour, and performed in excess of seven and one-quarter (7¼ ) or (8) hours, as applicable, on a normal working day and for all hours worked on a non-working day. [3] The employer scheduled Inspection Compliance Enforcement (ICE) training for Health & Safety Inspectors in the week of Monday May 16th to Friday May 20th, 2011. The inspectors, including the grievor, were advised in advance that they should not schedule any work activities in that week. [4] The grievor lived in Port Dover, Ontario. The ICE training was scheduled at the Hamilton Office, which was his headquarters, and was scheduled to start at 9:00 a.m. each day. The grievor’s normal work day was from 8:00 a.m. to 4:45 p.m. Health and Safety Inspectors typically performed their work duties in the field or at home, attending the headquarters only as needed to attend training or meetings or to do paper work. On the Monday of the week in question, he left home at 8:00 a.m. and arrived late for training. He advised his manager, Mr. Pat Raimondo, that since he had a long drive from Port Dover to Hamilton, to arrive in time he would have to leave home by 7:00 a.m. He requested that Mr. Raimondo authorize him overtime of one hour on each of the remaining four days of training, and advised that he would leave home at 7:00 a.m. to avoid being late. Mr. Raimondo agreed. [5] On Tuesday and Wednesday full days of training was conducted. He left home at 7:00 a.m., and attended the training and his claim for one hour of overtime pay was paid. On Thursday and Friday the training ended around 12:30-1:00 p.m. The trainers, who were not members of management, advised the trainees on each of these days that they should - 3 - spend the rest of the day experimenting with the new computer system they had just been trained on and reviewing the training material. On the Thursday, “a dummy” version of the new computer program was installed on the trainees’ computers. On the Friday they were given access to the actual program. [6] On Thursday and Friday also, the grievor left home at 7:00 a.m. On the Thursday, after the training ended, he had lunch at a Restaurant in Caledonia, Ontario, with three of his colleagues who had also attended the training. During lunch they discussed the new computer program they had been taught. Then he got home around 3:00 p.m., and played with the dummy system on his computer and reviewed training material until the end of his normal work day at 4:45 p.m. On the Friday, after the training ended the grievor and three other inspectors had lunch in Brantford. While at lunch they entered their week’s activities on their computers, which by then had been equipped with the actual new computer program. During the balance of his work day, he entered his expenses onto the new computer system, experimented with the new program, and reviewed the training hand-outs at home. Approximately 15 to 20 inspectors attended the ICE training during that week. Although the training ended early on the Thursday and Friday, all of them, including the grievor, were paid their regular wages for the full day. [7] The employer submits that “overtime” as defined in article UN 14.1.1 has two essential requirements as it applies to the grievor. The grievor does not meet either requirement. First, he must have worked in excess of his normal hours in a work day. On the two days in question the grievor could only claim to have worked from 7:00 a.m. to 1:00 p.m. That does not exceed his normal daily work hours. Secondly, the overtime must be an authorized period of work. Counsel conceded that the employer has no evidence to contradict the grievor’s assertion as to what he did for the balance of the work day on the two days in question. However, even accepting those facts, if the grievor spent the time reviewing training material and working on the computer, he did so on his own accord, and not on the instructions of the employer. It was pointed out that the instruction that the trainees should spend the rest of the day reviewing the training came from trainers who were not members of management. On that basis, it was submitted that any time - 4 - the grievor spent reviewing the hand outs and experimenting with the new system was not an authorized period of work within the meaning of article UN 14.1.1. [8] The union argued that the work in question was authorized, and that the grievor did work in excess of his normal daily hours. The Board agrees with the union. On the two days in question the training ended early for all of the trainees. It is undisputed that all of them, including the grievor, were paid their regular wages for the full day. In the absence of any evidence to the contrary, it must therefore be assumed that the employer paid for a full day because the employees were deemed to have worked the full day. While counsel suggested that the payment of wages for the balance of the work day following training was some sort of gratis payment on the part of the employer which resulted in a winfall to the inspectors, there is no facts to support that. Trainers hired or contracted by the employer instructed the trainees, including the grievor, to spend the rest of the day working on the training on their own. There was no instruction from management, that the trainees were not required to do that, or that such time would not be deemed work time. To the contrary, with no comment, the trainees were paid wages for that time. Therefore, the time was a period of work and authorized by the employer. It follows from this finding that on each of the two days the grievor did work one hour in excess of his normal work hours with the approval of his manager. [9] The Board concludes, therefore, that the grievor is entitled to the overtime pay for the Thursday and Friday. The employer is hereby ordered to forthwith pay to the grievor for two hours at overtime rates. Dated at Toronto, Ontario this 3rd day of September 2013 Nimal Dissanayake, Vice-Chair