HomeMy WebLinkAbout1988-0276.Bennett et al.89-11-06* ~. ~, ' ~ ONTARIO
'~ CROWN EMPLOYEES
GRIEVANCE
SETTLEMENT
BOARD
180 DUNDAS STREET WEST, TORONTO. ONTARIO. MLG 1Z8 - SUITE 2100 TELEPHONE: 416/598-0688
276/88, 296/88,
363/88, 401/88
IN T~E I~%TTER OF ANAP~BITRATION
Under
T~E CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between:
OPSEU (.Bennett et al)
Grievor
- and -
The Crown in Right of Ontario
_. (Ministry of Labour)
Employer
Before:
T.H. Wilson vice-Chairperson
S. Nicholson Member
W. Lobraico Member
For the Grievor: A. Ryder
Counsel
Ryder, Whitaker, Wright and Chapman
Barristers & Solicitors
For the Employer: S. Sapin
Staff Relations Officer
Ministry of Labour
V. Peperkorn
Chief Staff Relations
Observer
Ministry of Labour
Bearings: September 7, 1988
September 30, 1988
October 24, 1988
DECISION
There are seven grievors who at the relevant time were
Occupational Health and Safety Inspectors with the Ministry of
Labour assigned to the London office. The grievors, Bennett,
Ashenden and Burrows were in the Mining Branch, Birchall and
Goddard were in the Construction Branch and Elliot and Krete were
in the Industrial Branch. By agreement of the parties, the Krete
grievance (GSB 401/88) was consolidated with the other grievances
and is governed by the disposition of the Elliot grievance. The
grievors claim entitlement to on-call pay under Article 16. The
Ministry denies that they are so entitled.
It will be useful at this point to set out Article 16 and two
other related provisions in the Collective Agreement.
ARTICLE 14 - CALL BACK
14.1 An employee who leaves his place of work and is subsequently
called back to work prior to the starting time of his next
scheduled shift shall be paid a minimum of four (4) hours
pay at one and one-half (1 1/2) times his basic hourly rate.
ARTICLE 15 - STAND-BY TIME
15.1 "Stand-by time" means a period of time that is not a regular
working period during which an employee keeps himself
available for immediate recall to work.
15.2 Stand-by time shall be approved in writing and such approval
shall be given prior to the time the employee is required to
stand-by except in circumstances beyond the employer's
control.
15.3 Where an employee is required to s~an~-by for not more than
the number of hours in his normal work day, he shall receive
four (4) hours pay at his basic hourly rate.
15.4 Where an employee is required to stand-by for more than the
number of hours in his normal work day,- he shall receive
payment of one-third (1/3) of the stand-by hours at one and
one-half (1 1/2) times his basic hourly rate.
2
ARTICLE 16 - ON-CALL DUTY
16.1 "On~call" duty means a period of time that is not a regular
working period,~ overtime period,, stand-by period, or call-
back period,, during which an employee is required to be
reasonably available for recall to work.
16.2 On-call duty shall be approved prior to the time the
employee is required to be on call.
16.3 Where an employee is required to be on call he shall receive
twenty-five cents ~($.25) per hour for all hours such
employee is assigned to on-call duty.
Counsel for the union took the position that in fact the grievors
as Occupational Health and Safety Officers must be reasonably
available at all times to respond to situations for which the
Ministry is responsible under the Occupational Health and Safety
Act and regulations. As Schedule 6 employees,, they are not paid
overtime under Article 13 but receive in-lieu days. In the
Union's submission,L the mechanisms in place in the Ministry are
there to meet its requirement to respond under the Occupational
Health and Safety Act and the Regulations. The Ministry's
position is that the grievors are not required to be reasonably
available or indeed at all. Counsel for the Ministry
characterized the situation as one of voluntary call-back. No
one was able to provide any previous Board decision that
specifically answered this question although there are a number
of decisions interpreting Articles 15 and 16~ Accordingly, we
need first to examine the factual situations of the grievors.
Tom Burrows gave evidence on his experience in the Mines Branch.
When he was hired in April,· 1980, it was in the Elliott Lake
3
office. The Mining Area Engineer, Harry Bansiuk , told him he
was on-call and his apartment phone number was listed with the
major mining companies. He was told he would be called if
something occurred as for example, an injury or a work refusal.
Calls did not always require him to go out. He was told that it
meant if he got' a call while he was at home, he was to telephone
the client and respond appropriately to the problem. Later in
1980, he applied to be posted to Southern Ontario and was
assigned to the Richmond Hill office, later moved to London. In
fact, he continued to live in Barrie and that is approximately in
the centre of -the area he services. The mining area engineer at
that time was Barry Davies and he instructed Burrows to let him
know "what was happening", that Burrows was on-call and would get
calls from him or from clients. Burrows himself works out of his
home in Barrie where he has his own office. He has'a government
line in his office and has an answering machine for which he
carries a remote terminal to access any messages. This equipment
iS supplied by the government. His .position specification
stipulates that duties include:
"Conducting investigations of serious accidents and
fatalities by:
- examining accident scene(s) thoroughly, obtaining
statements from witnesses, recording findings, evaluating
related factors, preparing summary report indicating
suspected cause,, ~-determining if a violation existed,
recommending action;
- preparing reports from [sic] court action and inquest,
acting as witness, giving evidence and explaining findings;
- investigating refusals to work and complaints of unsafe
working conditions from workers,, unions etc., noting
4
particulars of situation, questioning complainant,
establishing validity of complaint, attempting to resolve
problem."
It is important to note that the Occupational Health and Safety
Act R.S.O. 1980, c321 as amended provides:
25-(1) Where a person is killed or critically injured from any
cause at a work place, the constructor, if any, and the
employer shall notify an inspector, and the committee
health and safety representative and trade union,if
any,~ immediately of the accident by telephone, telegram
or other direct means and the employer shall, within
forty-eight hours after the occurrence, send to a
Director a written report of the circumstances of the
occurrence containing such information and particulars
as the regulations may prescribe.
-(2) Where a person is killed or is critically injured at a
work place, no person shall, except for the purpose of,
(a) saving life or relieving human suffering;
(b) maintaining an essential public' utility
service or a public transportation system; or
(c) preventing unnecessary damage to equipment or
other property,
interfere with~ disturb, destroy, alter or carry away
any wreckage, . article or thing at the scene of. or
connected with the occurrence until permission to do so
has been given by an inspector.
26-(1) 'Where an accident, explosion, or fire causes.injury to
a person at a work place whereby he is disabled from
performing his usual work or requires medical attention
and such occurrence does not cause death or critical
injury to any person, the employer shall give notice in
writing, within four days of the occurrence, to a
Director, and to the committee, health and safety
representative and trade union, if any, containing such
information and particulars as may be prescribed.
Another matter that he deals with is work refusal under-'sub-
sections 23 (3) and (6) of the Act. Under subsection (7) an
inspector shall investigate the refusal to work and under
subsection (8) decides "whether the machine, device, thing or the
5
work place or part thereof is likely to endanger the worker or
another person." Burrows testified that normally any incidents
in his area are reported to him by the client,· the Ontario
Provincial Police, his supervisor or the answering service.
Section 4 of Regulation 694 provides:
4 Notices shall be posted in conspicuous places at each
mine or mining plant,, setting out the name, business
address and business telephone number of,
(a) the inspector for the district in which the mine
or mining plant is located;
(b) the person in charge of the mine or mining plant;
(c) the employer of workers at the mine or mining
plant; and
(d) the owner of the mine or mining plant.
Burrows produced such a list for Domtar Gypsum Mine and it listed
the general office number and home business number as well as fax
number under his name. Barrows' normal work week is 8:15-4:30
p.m., Monday to Friday. He generally informs his wife of the
direction in which he is going to make his rounds. About 10:00
a.m.,, he calls the London office and again about 3 p.m. in the
afternoon. He does not carry a pager (it does not work well in
the area) and does not have a cellular phone in his car. He does
access his answering machine or just calls his wife. They have a
personal telephone as well. There is usually someone at home -
if no%.his wife, then his children. He said that except when he
is on vacation,, he is reasonably available to respond. He
produced a brochure entitled "Careers in the Ministry of Labour",
a Ministry publication. In the section dealing with the
6
Occupational Health and Safety Officer,. it states at page 2 under
Working Conditions:
"2. Officers are expected to be on-call within the region
to investigate serious accidents and refusals to work."
The same appears in the sections on Mining Inspector, and
construction safety officer. It does not appear in the
descriptions of other Ministry positions such as Employment
Standards Officer for whom it stipulates instead:
"2 Hours of work are very irregular,, and re-scheduling of
appointments occurs frequently."
This grievor also produced the After Hour Emergency Service list
for London. His name does not appear on it. The names of the
grievors Ashenden and Bennett, however, are listed with phone
numbers in the Mining Health and Safety Branch.
With respect to the Ministry's procedures when a work refusal
occurs,..the Operations Manual provides (No. 4.15)
3.PROCEDURE When a work refusal has been reported,~ the
Area Engineer will request that an Inspector
investigate the refusal after it has been
determined that the employer and worker has
followed all the steps required in section 23
of the Act.
The Inspector shall:
(a) note date and time of arrival;
His name and residence phone number appear on the Guideline to
Mine Rescue Emergency procedure for Southern Ontario Region for
the Richmond Hill office. He testified that when he saw the "on-
call" statement in "Careers in the Ministry of Labour", he asked
the Director,- Vic Pakalnis,· and got the answer that it was an
7
unfortunate selection of words. Then prior to filing the
grievance he wrote the Area Engineer, but no response was
received.
In cross-examination,. Barrows stated that on week-ends, if he is
out,~ he does not leave a phone number with the Ministry at which
he can be reached but his children usually know where he has gone
and he leaves the answering machine on. He has not however been
asked to do that. Although he did not think he had told his wife
to contact him if he were away on a weekend fishing trip, he
testified that she has called him when he was 'out of town to tell
him the manager or a client has called. He has even responded to
calls when he was on vacation: he received compensating leave in
return. This summer vacation, he indicated that he was not
available. He did not know whether he could be disciplined for
being unavailable. Client companies were told at a Safety
Meeting who the inspector for their mine is.
Robert Goddard is an Occupational Health and Safety Officer for
the Construction Branch. There are seven construction safety
officers in the London office and Birchall is the other such
grievor. He testified that when he was hired,. F.A.C. Trott, the
London manager,, told him that he was to be on-call 24 hours a
day, seven days a week,, for work refusals,, critical injuries and
fatalities. Under section 29 of the Act,-an inspector who finds
a violation of the Act or its regulations may issue a stop order
for the equipment or process and under subsection 29 (5), "no
8
person except an inspector,, shall remove such copy [thereof] or
notice unless authorized to do so by an inspector". He testified
that the inspectors have a responsibility to reinspect and remove
the order. They get calls during off hours requesting them to do
so and in order not to hold up clients, they respond "as soon as
practical". Any inspector may lift the order but might contact
him as a courtesy. The grievor's telephone number is listed on
the After Hours Emergency Service list. He testified that he is
called either by his manager or the answering service. If he is
called by the Queen's Park operator, he tries to contact his
manager, but if he cannot locate him, he responds himself.
Normally, his response would be to drive to the scene, do an
investigation,, mainly with respect to the possible laying of
charges. Sometimes he can handle· the matter directly from his
home by telephone, as for example where a criminal offence was
indicated he would call the police instead of going himself.
This grievor has a horse farm and therefore there is almost~
always someone to answer the phone and the family knows where he
is if he is not at home when a telephone call comes for him. He
has never been told that he had to be available after hours.
But, since there are only two inspectors to cover an extremely
large area, if one of them was off or on sick leave, the other
inspector would be asked by the manager to cover for him.
Ronald Elliot is an Industrial Safety officer in the London
office. He testified that when he was hired he was told by his
9
immediate supervisor in Toronto in Divisional Training (Joe
Waterman) that he was on call seven days a week,- 24 hours a day.
By that,, he understood that when he was called, he had to
respond. .He testified that he understood that the "one window
approach" means that each inspector manages his own district and
that if another Ministry officer wanted to go into his area, he
went through him to avoid confusion. He testified that he had
been told that if he issued a stop order only he should go to
lift that order. He has never been called while on vacation but
has been called on in-lieu days. During non-working hours,~ he is
available. He has two small children and if not at home,~ his wife
knows where he can be reached. He testified that he had asked
the senior engineer if he could refuse to go out and was told
that he would be subject to discipline. Although his name and
number did not appear on the public list, he testified that he
got calls from clients. The few times he and his wife have been
out,· he had let management know where he could be reached.
William Ashenden is also a safety inspector with the Mining
Branch in the London office. He testified that he had been told
at Toronto to be on call for accidents and fatalities after hours
and on weekends. All the major companies have his home phone
number as well as his office number to call during off hours. If
they are unable to reach him,~ they call the Area Engineer or'Mike
Bennett whose area overlaps his area. If he goes away for a
weekend,· he lets Bennett know and visa-versa. His name and home
number appear in the Ministry Mining Branch list (Exhibit 10).
He explained that the one window approach evolved in the Mines
Branch: each of the eight areas has an inspector responsible for
his area and the mines in his area are told to contact him if
there is an accident or fatality. The inspector when contacted
takes the appropriate act either by himself or by contacting the
person with the necessary expertise, as for example the
electrical mechanical inspector. This approach was set out in a
Ministry Memorandum from the Area Engineer (Exhibit 14).
The Ministry adduced evidence through Paavo Kivisto,the Director
of the Mining,· Health and Safety Branch. Prior to April 1988, he
was the Chief Mining Engineer responsible for the whole province
and stationed in Sudbury and his experience with the branch
extended back to 1975. He testified that although any inspector
could do a safety inspection of a gravel pit, more sophisticated
mines required the efforts of all three disciplines. His
explanation of the single window approach was that historically
one person would have responsibility for a geographical area for
certain mines and consequently was a focal point for the client
group. In Northern Ontario it is often the area engineer. In
Southern Ontario for some offices, it is an inspector or a field
person. He testified that as far as he knew there were no
restrictions on inspectors on off-hours except for the mine
rescue operators. They are not required to leave a trail and only
advise the office that they are leaving their area when on
11
v~cation or lieu days. When asked whether a refusal to go out
would result in discipline,, he answered that he was aware of
that; that he would not expect discipline: "There may be
problems. He would establish the reason for the desire not to
go. It is better to send a willing person.'~ Mine rescue officers
are paid on-call pay. They are responsible for the training of
mine rescue teams. They are required to make special
arrangements for a relief man who is paid to deliver the
equipment and respond at a mine site. The Ministry's role during
an actual mine emergency is to ensure the mine rescue procedures
are on course. In cross-examination,~ this witness admitted that
he in fact did not know the day to day situation with regard to
Ashenden. He denied any knowledge of any Ministry policy of
giving out to clients the home telephone numbers of inspectors.
He stated that the obligation of clients is to contact the
Ministry not the individual inspectors. Regulation 694, section
4 provides:
Notices shall be posted in conspicuous places at each
mine, or mining plant, setting out the name,, business,
address and business telephone number of,
(a) the inspector for the district in which the mine
or mining plant is located;
(b) the person in charge of the mine or mining plant;
(c) the employer of workers at the mine or mining
plant; and
(d} the owner of the mine or mining plant R.R.O. 1980,
Reg 694,~ s.4.
12
This witness testified that the Ministry does require the posting
of the Ministry business telephone number.
Counsel drew to his attention subsection 117 (3) of the
Regulation. It provides:
(3) Any careless act of placing or handling explosive shall
be,~
(a) reported forthwith to a supervisor in charge of
the work place;
(b) investigated by the supervisor; and
(c) reported forthwith by the supervisor to an
inspector.
The Mining Health and Safety Branch - Operations Manual of March
1984 (Exhibit 15) at paragraph 2.4 "Investigations" provides:
"The Branch carries out investigations of unusual
occurrences and all fatal accidents, critical injuries,
refusals to work and other occupational health and
safety comPlaints in the mining sector. Ministry staff
may be reached 24 hours a day to investigate
fatalities, serious accidents or refusals to work.
Reports of all fatality investigations and all reported
unusual occurrences are published.
The witness agreed with union counsel that this policy was
intended to enable clients to meet their statutory duty to report'
such events. The union produced in evidence a Memorandum dated
June 14,' 1985 from John Whiting, Area Engineer to the Mining
Branch Kingston,~ London and Richmond Hill covering the
replacement of vehicles (i.e. Ministry vehicles). (Exhibit 16)
It indicates that neither public transDortation nor existing
vehicle pooling is viable for inspectors, the latter in
particular because inspectors are on 24 hour call. However,
13
vehicles are pooled in some offices. He felt that as a
supervisor he had the authority to assign employees and therefore
if an inspector refused to respond he would want to know why. He
felt that he would have the right to discipline if an inspector
refused an order to respond.
Marcel Djivre is the Area Engineer for Southern Ontario for the
Mining Branch. Prior to that, he had been the District Engineer
for the London office. He testified that the districts are
assigned to inspectors for administrative reasons and in order to
have someone responsible for answering calls. When there is an
accident outside the specialty of the mining inspector in a
district, the other inspectors with the necessary specialization
are expected to help. After 5 p.m. in the London office, there
is an answering service for any calls. It has some written
instr%ctions on how to screen calls along with an attached
updated list of contact people for after hours emergencies.
Their instructions are that the operator will refer to the
attached list and will call those persons listed in the order
that they appear and continue to do so until they are successful
in making contact. The caller is to be asked if it is a matter
that must be dealt With immediately and the operator should
proceed on the basis of the caller's assessment of the need for
immediate contact.
Djivre testified that if he took a call himself, he would write
14
down the information, assess whether it belonged to the mining
branch and whether it required someone right away or could wait
until normal working hours. If it concerned something outside
mining,, he would contact the manager of the appropriate sector~
If there was a mining fatality, he would call the mine to ensure
that the scene was frozen and that witnesses remained available.
Then he would call the inspector and/or engineer to go to the
scene. If the most appropriate inspector was not available, he
would call the next one. He stated that he did not require
inspectors to let him know if they might be going away for a
week-end nor to leave a telephone number at which they might be
reached. He said that he did not put any restrictions on their
off-hours although he has heard them say that they were expecting
a call and would stay at home. He testified that the list of
office and home telephone numbers for the Mining Branch (Exhibit
18) is not made available to clients. There have been only two
mine fatalities, one per each office; as for as critical
accidents,, work refusals and unusual occurrences, there are about
two per month. He testified that he had always been able to get
someone to respond either right after.or the next day and he has
never had a refusal. It is clear that as the first named person
on the list,, this witness's function is to act as a kind of
conduit pipe. He admitted that he gave the list containing
Barrow's home telephone number to the two mines in his distric~o
And the answering service has an After Hour Emergency Service
list which contains the inspectors' telephone numbers.
15
Ted Joyce is the manager of the London office Construction
Health and Safety Branch. He has six districts with an inspector
for each and an extra inspector for some special assignments. He
testified that the policy is not to give out home telephone
numbers. His evidence was that after hours, the local answering
service calls him first, but if he is not available it goes down
the list of construction inspectors. If he cannot locate an
inspector,, then he does the job himself. If the police are
required,, he will call them himself. Sometimes the inspectors
are away at their cottages and at that time, he does not try to
reach them there and he does not require them to tell him that
they are going away on week-ends. In 1987 they had six
accidental fatalities to investigate but none in the current
year.
A memorandum dated January 10,- 1980 from R.K. Cteverden, Director
Construction Health and Safety Branch in dealing with designation
of inspectors' residences as their headquarters, explained that
decision as based on the recognition that they were on call at
any hour of the day or night. Joyce admitted he had seen it and
that it had never been rescinded. It was not their policy that
clients should call the inspectors directly but agreed that the
answering service did call inspectors directly. His under-
standing was that in his free time, an inspector could do what he
wanted but if he got a call, he was expected to respond.
16
The senior program administrator for the Industrial Health and
Safety Branch,. Pat Coursey, testified that the "one window'~
approach is related to the branch,, not the inspector and it has
no application to after hours. There would not be discipline if
an inspector refused to go out. When asked what were the
"expectations" with regard to inspectors, the answer was that
"people performed their duty on a reasonable voluntary basis."
The law did not require the Ministry to send out .an inspector
immediately,~ but there are cases where someone needs to go out.
Leon Mylemans, the Acting Administrator of Area 1 in the.
Industrial Health and Safety Branch gave testimony on his own
experience. His area is the Windsor area.~ He testified that if
the answering service could not reach a manager, then they are
instructed to call the Queen's Park answering service. He has
had inspectors who would'not respond for various reasons. He has
some statistics on inspectors going out after hours. He
testified that any particular inspector might not get called out
for a year. He admitted his records were not complete.
Krete testified in .reply evidence that the Queen's Park operator
had called him. He was surprised that the operator had his
number but was informed it was in their list.
The Union argued that Article 15 of the Collective Agreement
means that the employee who is on stand-by must either be at home
.17
or reachable so that he can be called into work. Article 16 is a
lower level as reflected in the reduced amount of pay involved.
Under its provisions,- in the Union's view, it is not necessary
for the employee to leave a paper trail in .order to be
"reasonably available". Management itself is available if
inspectors are not.
The Board was referred to its decision in Walker and the Ministry
of the Solicitor General (GSB ~ 417/B2 10 November 1982). The
grievors in that case were employed in the Transport Branch of
the OPP. .The force has 45 foot command trailers which were
sometimes used at fairs and also as command units in emergency
situations, such as a serious train derailment. For several
months during the summer of 1982,' the grievors participated in a
rotational "pager schedule" carrying a pager on week-ends and
standing ready to drive a Command Trailer should an emergency
arise. Management paid them the $.25 per hour under Article 16;
they grieved .that they were actually on "Stand-by time" under
Article 15. The Board allowed the grievances. At pages 13-14 of
the Award, after reviewing the Board's jurisprudence to date,
Vice-chairperson Samuels wrote as follows:
"While each of these cases turned on it own facts,
there are some general conclusions which can be drawn from
the jurisprudence. Firstly,~ the matter is not decided
simply on the language which the Employer uses. Merely
calling the pager system "on-call" does not make it an
Article 16 situation. Secondly, one gets at these real
requirements by examining the circumstances of the job, and
the written and verbal instructions to the employees."
18
Conclusions
In our case,~ what are the salient points? Firstly,, the
Ministry characterized the situation as "on-call", and made
it clear to the employees that they were to be paid on this
basis. Secondly,' the system was established "if an
emergency arises", and it would have been known that the
only emergency use of the Command Trailer previously was a
major air disaster, the Mississauga train derailment, and
the Orillia train derailment - - - all of which involved
high danger,, and a matter of life and death for many members
of the general public. So it would be reasonable for any
employee to conclude that he was asked to be ready to
respond to that kind of emergency,. He would know that the
possibility of this was 'remote, but the OPP has now reserved
a trailer and tractor for immediate use as a Command
Trailer. Thirdly, the instructions accompanying the
memorandum,-if given at all, were either unclear or made
little sense. As we've already indicated,- a driver simply
couldn't respond to a Duty Officer, who was asking him to
come immediately, that he had to finish his shopping and get
his wife home with the groceries. While the memorandum came
from Mr. Makarow [their Manager],~ the orders would come from
the Duty Officer. This is critical in our view. The
Ministry never made clear what was expected of the grievors
in face of an order form the Duty Officer.
In sum,~ given their knowledge about the use of the Command
Trailer at the Orillia site, it was manifestly reasonable
fQr the grievors to conclude that the pager system was
designed to enable them to respond immediately both to the
call and to the order to bring the trailer. %~ile the
trailer may not be required, it should be there as quickly
as possible. It is just not reasonable to expect that one
could finish the shopping or listen to the sermon while the
deadly gas swarmed over the city and the officers on duty
awaited the arrival of their vital communications system."
In Bedard and the Ministry of Health (GSB # 1281/85 12 August
1987) the Board considered the situation of certain ambulance
officers as to whether they were on "stand-by" or "on-call" The
grievors between 8 p.m. and 8 a.m. were expected either to remain
at home to answer the telephone (or leave a number with the
dispatcher where they could be reached) or carry a pager. The
response time was 15 minutes from receipt of call to reporting to
19
base° The Board held they were on stand-by. The Board stated at
pages 5-6:
"We believe that a key consideration in this case,
which bears on the circumstances of the job, is that the
duties performed by the grievors relate to the protection
and preservation of~human life and physical well being. In
this respect they approximate more closely the duties of the
grievors in Walker and Taylor who drove an OPP Command
Trailer used for emergencies such as train derailments and
airport disasters,· than those of the grievors in Jamieson
(plumbers and electricians) or in Novak and Humphrey
(conservation officers)~.
We agree with the suggestion of counsel for the Union
that Articles 15 and 16 should be seen as describing a
continuum which seeks to relate the relative immediacy of a
required response to a call for some public service to the
nature .of the public interest that is threatened. Thus,
where as here the service needed is directed at the
protection of human life,~ the called for response is and
should be,~ immediate,, to approach the matter this way is
simply to echo what other panels of this Board interpreting
these articles have said, VIZ, that each case must be
decided on its own facts."
Mr. Ryder for the union argued that the documentation showed that
the grievors were "on-call" and had been so told when hired. He
further argued that the Occupation Health and Safety Act and its
regulations required a response by the Ministry. If the officers
were not reasonably available, the Ministry could not be able to
discharge its obligations. The one window approach indicates
that it is in fact preferable for the assigned officer to respond
to the client's situations. Prime facie, an officer could not
refuse an order to respond and it is natural to expec~ him to
respond. There was the testimony of K~visto and a memorandum in
evidence (Exhibit 33) which showed that there was a duty to obey
such orders.
20
The Ministry relies on the fact that these are Schedule 6
employees without maximum hours of work. Ministry counsel argues
that this is consistent with a third category as suggested in the
Walker case. In the case of Walker,· at page 11~ the Board noted
that the pager system had been abandoned. In the future,· the
Branch would have to phone around to see if someone was
available. But in fact,~ I note that the Board in Walker did not
state how that would be classified: the grievor in the case was
unaware of that change and was found to be on stand-by. The
Ministry then argued that it is the Ministry that has the
obligation to discharge,, not the officer. It drew to our
attention the case of Mongrain and the Ministry of the
Environment (GSB 939/86, 30 June 1988) where vice-chairperson
Slone wrote on page 7:
"The difference in the rate of pay between stand-by and
on-call is presumably to reflect the greater inconvenience
of being on stand-by. That inconvenience is surely much
greater when the employee knows that there is a substantial
likelihood of being called. Conversely,~ the inconvenience
is much less when the employee knows that there is a very
small likelihood of being contacted,~ much less sent out.
The probability of being called out is of course,, not the
only factor differentiating the two statuses, but is an
important one. Equally important is the response expected."
He found the environmental officers to be on-call rather than on
stand-by. The Ministry argued that in Novak and the Ministry of
Natural Resources (GSB 141/81, 20 May 1981) the Board looked at
flexibility of response as the factor and maintaining contact
with a central switchboard as determinative of on-call. In fact,
Novak was again a case of the grievors claiming to be on stand-
21
by. The Board at page 6 stated: "The fact that the Conservation
officers were required to respond to the pager quickly does not
mean that they were required to immediately proceed to
emergencies. In such a situation they were authorized to use
their best judgment and naturally if they could not find someone
else who would go to the scene,-would normally go themselves."
In the Ministry's view, leaving a trail is necessary to an on-
call situation. The Ministry further relied on Clothier and
Ministry of TransDortation and Communications GSB 128/77 for that
principle. The grievors were mechanics and had instructions to
leave a phone number where they could be reached which the Board
found at page 5 of its decision ,'to be a not excessive element of
being reasonably available." The Board thereupon dismissed a
grievance alleging theY were on stand-by. What these two cases
seem to me to establish is that a requirement that the employee
leave a number at which he can be reached does not in itself
carry his status into th~ stand-by category of Article 15. The
Ministry argued that the evidence showed that the grievor's
lifestyle was not so inconvenienced as to bring them within
Article 16.
The factor that makes this issue rather complex is that the
Ministry and the grievors ha~e been performing their work without
formally structuring their response mechanism. I have no doubt
that the Ministry has a public duty to provide proper service to
the industries which it oversees. The industries have statutory
22
duties to report fatalities and serious accidents to the
Ministry. The Ministry has so far been able to fulfil its
obligations. It has not given formal instructions to its own
safety officers as to their obligations to respond on off hours.
They have apparently responded appropriately. As Mr. Brandt at
page 7 of Bedard stated:
"Nor do we regard the fact that the system is voluntary
as significant to the issue as to how the duties should be
characterized. It is to the credit of the parties that they
have been able to make it work without the imposition of any
formal discipline either for failure to participate in the
first instance or failure to respond within the time
expected.."
Mr. Brandt was speaking of the much more demanding status of
"stand-by". It is for the Ministry in the discharge of its
duties to decide what degree of formal structuring it needs to
implement in order that it can deliver the service required. It
has here done so by not spelling out that the employees need to
leave a trail. In an informal self-regulatory way,~ t~ese
grievors have essentially done so themselves. They have all in
my opinion,, in fact regularly made themselves reasonably
available. Because they are not on stand-by,~ they need not sit at
home by the phone, or leave a number where they can be reached;
they need not be sober at all times; they can make arrangements
for others to cover for them and go away for the occasional week-
end. But they understand with good reason,~ that they must be
reasonably available.* Many were told they were on stand-by when
NOTES
* It cannot seriously be argued that a grievor if contacted at
home and asked to respond to a call from a mine, a factory
or a construction site where a fatality had just occurred
could arbitrarily reply like Richard III:
"Thou troublest me,. I am not in'the vein."
(RICHARD THE THIRD,~ Act IV,, Scene ii)
** Ministry Counsel requested separate decisions for the three
types of grievors. I have set out the evidence relating to
the three groups in full detail. However, given the
realities~ I see no reason to write separate decisions.
23
hired.. The consequences now for the Ministry to say to them that
they need not be reasonably available,, if actually taken up by
the grievors would in my view be inconsistent with the Ministry's
own obligation - acknowledged at the hearing - to respond to
calls from the industry,, mines and construction people reporting
situations under their statutory duty. "Reasonably available" is
not a narrow term as the Board jurisprudence shows. The issue
has always been where is the higher obligation that puts an
employee on stand-by. These grievors are not on stand-by but in
my opinion they are required to be and are in fact reasonably
available. Within that category it is obviously the Ministry's
decision what procedures if any it wishes to institute to make
sure that employees are reasonably available. Fortunately for
all, the grievors have performed that obligation without rigid
procedures,~ but perform it they have.** The grievances are
allowed and the Board will remain seised pending the
implementation of this Decision.
Dated at Toronto this 6th day of November ,, 1989
Thomas M. Wi. lson,~ vice-chairperson
S. Nicholson,~ member
W. L0braico, member