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HomeMy WebLinkAbout1988-0748.Koncz.89-03-20 CROWNEMPLOYEES DE L 'ONTA~t/O E GRIEVANCE C,OMMISSION DE ,I~ SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, TORONTO, ONTARIO. M5G 1Z8- SUITE 2100 TELEPHONE/T6cL~'PhtONE 180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) MSG IZ8 - BUREAU2100 r4t6) 598.0688 0748,/~8 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OP~EU IMoncz) Grievor - and - The Crown ~n R~ght of Ontario (Ministry of Community and Social Services) Employer Before: R.L. VerJty, Q,C. Vice-Chairperson J. McManus Member F, Collict Member Fom the Gr~evor: M. Bevsn Grievance Officer For the Employer: $, Patterson Legal Service BraDch Ministry of Community ~ Social Services Hearings: December DECISION , The _issue in this case is whether the facts'support the griever's claim for call-'back p~ pursuant to Article 14.1 of the ' Collective Agreement for attending an interview at the workplace on July 7, 1988. ~ Article 14.1 provides as follows: 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 (4) hours' pay at one and one-half (1-1/2) times his basic hourly rate. The relevant facts are unu'sual. The grievor, George Koncz, has worked for some 20 years at the Edgar Adult OccuPational Centre near Barrie. He is employed as a Maintenance Painter. Mr. Koncz Was on sick leave as a result of a leg injury from Monday, July 4 to Friday July 8. He was scheduled to return to work on Monday, July 11'. ' On Thursday, July 7, Ministry Investigator John Packer held a series of interviews at the Edgar Centre in connection with an investilgation under s. 24 of the Occupational Health and Safety Act re§ardi:?¢ staff sgeedi~ on the premises. At approximately 8:Z5 a.m. on the day in question, the grievor attended at the centre to pick-up his pay-cheque and to deliv6r a medical certificate to Supervisor Boris ?oredos to the effec~ that he would be able to return to work the following Monday. Mr. P~redos is Manager of building maintenance and has held that positilon since June of 1988. Upon seeing the grievor on the premises, Mr. Poredos reques~ted him to attend an interview with Investigator Packer. Mr. Poredo:s testified that he enquired whether the 9rievor felt well enoughi to be interviewed and was given a positive response. The grievor does not recall that conversation but did form the opinion that he had no choice but to attend as requested. The grievor was ipte'rviewed by Mr. Packer~ for approximately 15 minutes on July 7 between 8:30 and 9:00 a.m. The grievor maintains that he was interviewed against his own wishes. Mr. Packer testified that he asked the grievor whether he minded answering questions and was advised "no". The investigator then proceeded ,with the interview. Mr. Packer's written summary of the interview establishes that the grievor co-operated by answering all questions posed. In his evidence, Investigator Packer ventured the opinion that the grievor was on duty assignment during the interview, After returning to work, the grievor requested premium paym.ent for having attended the interview on July 7. That request was denied although he was paid his regular rate of pay from 8:15 a.m. to 9:00 a.m. on July 7. At all other times during that week, he was-pal6 under the sick leave provisi'ons of the Collective Agreement.- On these f~cts, the grievor claims e~tit'leme~t to the ~remium provisions of call-back pay. The Union maintains that the facts support the grievor.'s claim for call-back pay. In support, reference was made to Re Shell Canada Ltd. and Oil, Chemical and Atomic Workers, Local 9-848 (1974), 6 L.A.C. (2~) 422 (O'Shea). The Employer argued that there was no such entitlement and cited as authority OPSEU (B. Charette) and Ministry of Community and Social Services 26/88 (Wilson). No ~uthority was cited on even remotely similar facts. A review of the cases referred to in Re Shell Canada Ltd. makes it clear that at least in the private sector, arbitrators appear to differ as to the circumstances in which call-back pay arises. Some arbitrators allow a claim where thc employee is required to make an extra trip to work. Other arbitrators uphold a claim where an employee is called into work outside his regularly scheduled hours whether or not an extra trip is involved. However, the majority of arbitrators have held that the reasons why parties negotiate a call-back clause is to compensate an employee for personal ~nconvenience or disruption caused - 5 - by the call-back to work at an irregular time. In the Re Shell' Canada case, supra, Arbitrator O'Shea defines call-back in the following manner at pp. 428-429: The reasons which justify the minimum payment in the event of a call-out, do not of themselves, define what constitutes a call-out or, as it is sometimes called, a call-in or a call-back. A call-out is a form of overtime work which carries a minimum guaranteed payment. The fact that distinguishes this type of overtime from other overtime work is that it not only takes place outside of the employee's normal hours of work but that it is-extra work that is not subject to. regular scheduling and usually arises because of an emergency situation. If it takes place on a day when an employee is scheduled to work, the call-out work is performed either after there has been a break or an elapsed period of time following the performance of his regular shift or the call-out work is completed and a period of time intervenes prior to the commencement of his shift. An employee also may be called out on days when he is not scheduled to work, if an emergency arises and regular overtime cannot be scheduled in advance. Call-out work may be defined as unscheduled emergency overtime work which is not contiguous to an employee's regular shift. Extra hours which are worked immediately preceeding or following a regularly scheduled shift are not normally subject to call-out provisions but are usually paid for at regular overtime rates. On the facts of the instant grievance, the attendance of Investigator Packer at the Edgar Centre cannot be described as an emergency situation. Home,er, it was an unusual event. Article 14.1 of the Collective Agreement provides for a minimum of four hours premium payment where an employee has left the - 6 - work place and is subsequently called back to work prior to the starting time of his next schedule shift. Article 14.1 is silent if call-back is to be pai6 whether or not an extra trip is required. Recently in the Charette' Decision, supra, Vice-Chairman Wilson held that Article 14.1 applied only to the archetypical call-back situation. In ~harette the Board found that Article 14.1 did not apply to pre-scheduled overtime, Mr. Wilson reasoned at p. 8: It is only the inconvenience of the archetypical call-back ..... which the parties have dealt with in Article 14. in Grant and the Ministry of Correctional Services 197/83 Vice-Chairman Kennedy makes it clear that for a claim to succeed under Article 14.1 there must be a degree of inconvenience and disruption to the employee to trigger the provision. On the evidence adduced, the Board is satisfied that the grievor's interview with Investigator Packer can be properly characterized as "work" within the meaning of the call-back provision. The rationale of call-back is "work" Admittedly, the grievor's regular work was maintenance painting. However, the evidence established that other employees were interviewed by the Ministry Investigator on July 7 during normal working hours. The Board .finds as a fact that attendance at the interview was sufficiently work related to constitute work. In sum, the type of work done does not affect the payment. An extra trip to and from ~work was not required in this case. In the typical call-back senario, the employee was at home when he was told to return to work prior to the start of his regular shift. In our opinion, it makes no sense to deny the request for call-back pay due to fortuitous circumstances whereby the grievor was on the premises when the request was made to attend the interview. that. regard see Re Shell Canada Ltd., supra. The interview took place outside the employee's ~ormal hours of work at a time when he was on sick leave. In that regard, it is surprising that the employer would have made such a request with full knowledge of the griev.or's sick leave status. The evidence established ~hat the grievor viewed the request as a duty assignment. Similarly, the fact that the grievor was paid for attending the interview at his regular rate of pay is a recognition by the Employer that participation in the interview constituted a work assignment. A key factor in this matter is whether or not there was any inconvenience and disruption to the §rievor. The Board accepts the grievor's evidence that he was inconvenienced by his compliance with the Employer's request, Undoubtedly the grievor's attendance at the interview infringed upon his sick leave. Clearly the grievor had no intent to perform any work when he attended at the - 8 ~ Edgar Centre on July 7. We find that the sudden unpredicted return to work created for the grievor a degree of disruption and inconvenience. There was a dispute on the evidence as to whether the grievor or his wife drove home the family motor vehicle. That piece of evidence is not particularly relevant. The board accepts the grievo~'s uncontradicted testimony that his foot was badly swollen following the ~nterv~ew procedure. In the result, this grievance shall succeed. Accordingly, the grievor shall be fully compensated under Article 14.1 for the ~ifference between the four hours premium entitlement and the regular wages paid. DATED at Brantford, Ontario, this ~Oth day of March, 1989. R. L. VERITY, Q.C. - VICE-CHAIRPERSON "J. McMANUS - MEMBER "I BIScJ-~'' F. COLLICT - MEMBER DISSENT RE: G.S.B. #0748/88 (KONCZ) Management concluded in this case that the circumstances did not apply to Article 14.1 and that~call back pay would not be paid. However, Management did agree that the subject inter- view normally would have taken place during regular working hours; and therefore paid the Grievor for the approximate time he spent in the interview.~ Was this a reasonable conclusion and decision? CoUnsel for the Union has argued that the Grievor left work the prior Friday, that he was on a sick leave of absence for a week during which time (on the Thursday) the incident occurred, and he returned to work on the following Monday; and that these circumstances would cause the case to.meet the language requirements of Article 14.1. That is, the Grievor " .... leaves his place of work .... '" - on the Friday -" .... a~d is subsequently called back to work (on the Thursday) prior tO the starting time of his next scheduled shift .... " - on the Monday. The contention, clearly, is that the Grievor was called back to work. was he? If he was, he is entitled to the call back pay as provided in Article 14.I. If he was not, he is not entitled to the call back pay. As stated in the award, the intent of a provision like Article 14.1 i's to compensate an individual at a minimum rate for the inconvenience and disruption associated with a "call back" (although the language makes no reference to this in- tent). However, there was no "call back" in this case as the Grievor had come in to his place of work to pick up his pay cheque; and although he had a swollen ankle, there was neither inconvenience nor disruption to him as normally is contemplated in the negotiation of call back provisions. The fact is, from a simple reading of the language of Article 14.1, that the Grievor was not" .... subsequently called back to work ..... ". Both parties know the meaning and intent of Article.14.1. Even the Grievor, Mr. Koncz, knows the meaning of Article 14.1!! In the event that the parties fail to agree on the meaning of this language, the Board is restricted to the interpretation of the specific language of the Article. The majority award in this case cites jurisprudence assoc- iated with call in/call out/call back situations. However, none of them, including prior G.S.B. cases, are of assist- ance to the parties in this case. However the award, at page 7, cites the Re Shell Canada Ltd. case (6LAC(2nd)) and concludes that " .... In our opinion, it makes no sense to 'deny the request for call back pay due to fortuitous circumstances whereby the grievor was on the premises where the request was made to attend the interview. In that regard, see Re Shell Canada Ltd., supra ..... "o (award, p.7) It should be noted, however, that the referenced Sl~ell Canada case is based upon some very specific language relative to overtime considerations - as follows: "ARTICLE 11 - HOURS OF WORK, WAGES AND OVERTIME 11.08 - Overtime Wages - General. (b) (i) Call out ................... lb) ........................... (d) ............................... " (Re Shell Canada, Ltd. - 6LAC(2nd) p.422) The above Shell "call out" provision is very clearly a part of the "Overtime Wages - General" section of language of the collective agreement. By contrast, Article 14.1 in the subject case clearly stands by itself under the specific heading of CALL BACK. It has nothing to do with OVERTIME language which is separate and distinct and is set out in Article 13 under the heading of OVERTIME. Accordingly one does not qualify for consider- ation under Article 14.1 unless called back. That is the operative requirement of the language. In view of the above this Member would conclude that the circumstances of this case do not fall within the scope of Article 14.1 and the case, therefore, must fail. To con- clude otherwise {s to read more into the language of Article 14.1 than a specific reading of the language will bear. The parties Simply did not contemplate circumstances that occurred in this case and did not provide for them - just as they did not make reference to "inconvenience" or "disruption" in the language, although the language is intended to deal with these factors. If one is to accept the Union's position - to the effect that the "duty assignment" (the interview) associated with the circumstances of this case, ihvolved a "call back" - what would be the Board's position relative to Article 14.1 if Mr. Packard had telephoned the Grievor at home and asked him the same questions he asked at the place of work? Would this have been a case to attract the provisions of Article 14.17 Would it have been a "call back"? Certainly it would not meet the "call back" requirement of the language; and the Board, presumably, would conclude that Article 14.1 would not apply. However, the same "duty assignment" would have b'een per- formed in the sense that Mr. Packard would have completed his interview; and the Grievor would have been inconvenienced neither more nor less than he was in the subject case. This Member would have dismissed the grievance. F. T. Collict, Membe r.