HomeMy WebLinkAbout1989-0950.Clark.90-08-08 ONT,4fl;O .
CROWN EMPLOYEES DE L'ON TARIO
SE LEMENT REGLEMENT
8OARD ' DES GRIEFS
180 DUNDAS STREET WEST, TORONTO, ONTARIO. MSG IZ8- SUITE 21~ TELEPHONE/TELePHONE
180, RUE DUNDAS OUEST, TORONTO, (ONTARIO)MSG IZS - BUREAU RtO0
IN THE M~TTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BQ~RD
Between= OPSEU [CLARK)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of correctional services)
Employer
Before: M.R. Gorsky Vice-Chairperson
I. Thomson Member
M. O~Toole Member
For the Grievor: G.A. Richards
Senior Grievance Officer
Ontario Public Service
Employees Union
For the Employer: Maureen Galway
senior Staff Relations Officer
Ministry of Correctional Services
Hearing: January 22, 1990
The Grievor, Ronald Clark, is a Correctional Officer 2 at
the Burtch Correctional Centre. On April 6, 1989, he had
occasion to give 'Cardio Pulmonary Resuscitation to an inmate who
later died. OnApril 7, 1989 (the Grievo~'s day off),.he was
telephoned at his home by a Supervisor, Jim Butler, at about
12:00 noon and was ordered to report to the Centre for an
interview with a Ministry Inspector with~respect to the incident
of April 6th. The Grievor arrived at the Centre at approximately
1:00 p'.m. on April 7, 1989, where he met with the Inspector from
4:00 P.m. to 5:00 p.m. and then returned home. The GrieVor
arrived at his home at approximately 6:00 p.m.
When the Grievor was called to report to work, it was agreed
that he was expected to get there on.his own, and he used his own
motor vehicle for this purpose. The Grievor resides in Norwich,
Ontario, which is located 32 kilometres from the Centre.
The Grievor was paid four'hours' pay at 1 1/2 times his
'basic hourly rate, pursuant to Article 14 of the collective
Agreement which is as follows:
"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 (4) hours' pay at one and one-half (1 1/2)
times his basic hourly rate."
On the facts above described, the Grievor claims to be
entitled to kilometric rates under Article 22 of the Collective
Agreement and to time credits while travelling, under Article 23
of the Collective Agreement. The relevant portions of Articles
22 and~23 are as follows:
"ARTICLE 22 - KILOMETRiC RATES
22.1 If an employee is required to use his own automobile
on the Employer's business the following rates shall be
'paid effective April I, 1985 .... "
"ARTICLE 23 -~TIME CREDITS WHILE TRAVELLING
23.1 Employees shall be credited with all time spent in
travelling outside of working hours when authorized by
the ministry.
23.3 When travel is by automobile and the employee travels
directly from his home or place of employment, time
will be credited from the assigned hour of departure
until he reaches his destination and from the assigned '
hour of departure from the destination until he reaches
his home or place of employment.
23'5 When an employee is required to travel on his regular
day off or a holiday listed in Article 48 (Holidays),
he shall be credited with a minimum of four (4) hours.
23.6 All travelling time shall be paid at the employee's
basic hourly rate or, where mutually agreed, by
compensating leave."
The position taken on'behalf or. the Grievor was that the
assigned hour of departure was 12:00 noon and that he did not get
home until approximately 6:00 p.m. In claiming benefits under
Article 23, it was submitted that the Grievor had to travel 45
minutes to work and the same time from work to his home.
An alternative argument presented on behalf of the Grievor
was that if his claim is limited to payment for call back under
Article 14. then he is.entitled to six hours payment because of
the elapsed time from the call made to him at 12:00 noon and his
return home at 6:00 p.m.
It should be emphasized that the only evidence placed before
us was contained in an Agreed Statement of Facts. Certain
statements were made by Mr. Richards, elaborating on the Agreed
Statement, one of which was that the Grievor had been told,
during the telephone conversation with Mr. Sutler, that the
Ministry "would pay everything", in response to the Grievor's
inquiry concerning how he Was to be paid. Ms. Galway, for the
Ministry, did not agree that such a statement had been made, and
.in the absence 'of ewidence, by agreement or otherwise, we are not
in a position to decide whether such an undertaking was made or
its effect.
Yhere is a question before us Which requires us to determine
whether Article 23 can apply to the time spent in travelling by
the Grievor even if the time so spent was "authorized by the
Ministry". We will assume that it was in order to see whether
the other facts bring Articles 22 and 2'3 into operation.
No case was brought to our attention where'either Article 2'2
and 23 was brought into operation where a grievor travelled to
and'from his or her residence to the regular headquarters using
his or her own automobile. No case that was referred to us felt
it necessary~ to'do more than state the propQsition. All of the
cases referred to us concerned situations where a grievor was
required to travel to some place othe~ than the usual
headquarters. In Re Hay.ford and The Ministry of Correctional
Services GSB #1398/87 (Kates), it was said,.at p.5:
"... The grievor resides at Dunsford, Ontario. In the.
normal course the grievor travels to and from his residence
in Dunsford to the work premises at Millbrook using his own
automobile.· He is not reimbursed for this daily routine of
travelling to and from work. It is common ground that the
grievor does not claim to be 'on the employer's, business;
for the purposes of travelling to and from his residence to
attend work ....."
The Board did not attempt to analyse why this was so, but
stated, further at p,5:
"The foregoing proposition may appear obvious.
Nonetheless, the principle recited, however self-evident,
will bear some relevance in our ultimate disposition of this
'grievance.."
Reading the first quote, above, 'it might be concluded that
the Board was merely referring to travelling .to and from work to'
work regular shifts and that the statement was not intended to
apply to a call back situation.
There is nothing in the Hayford case that suggests that
Article 23, or Article 22, applies to a case where an employee is
required to travel to his or her normal place of employment on a
day o'ff.
The application oS Articles 23.1 and 23.3 appears to have
been recognized by the Union, in at least one case, as 'applying
to cases whare an.emPloyee is required to travel to a
"destination" other than his or her "place Of employment". In R_ge
Dymond and The Ministry of Correctional 'Services 377/82 '(R. J '
Roberts), it is stated at p.3
"The issue with which we are concerned solely, involves
the third type of hospital duty, described above. The Union
submitted that when the grievor was assigned to this type of
hospital duty he was 'authorized by the Ministry' (within
the meaning of s.23.1 of the collective agreement) to travel
'outside of working hours' from his home to a 'destination'~
other than his 'place of employment' (within the meaning of
ss.23,1 and 23.3 of. the collective agreement), and as such,
he was entitled to be credited with the time-spent in so
doing."
It is significant that the restriction on'the applicability
of Article 23, as enunciated in the Dvmond case, took place under
the immediately preceding Collective Agreement and the language
of the Articles dealt with in the Dvmond case remainedr the same
in the current Collective Agreement. There is no doubt as to how
the Board in the ~Vmon~ case interpreted Article 23.3, as in
footnote 1, found at p.5 of the Decision, the Board stated:
" ... Moreover, it seems that, given the necessity for
s.23.3 to apply to a multiplicity of different types of .~
travel, the expression 'assigned hour of departure' might
well encompass within its scope departure within a
reasonable time before the assigned commencement of an
employee's shift at a destination other than his usual place
of emDlokrmen%." (Emphasis added.)
In the case of Re Muscatello and the Mini'str¥ of
Correctional Services, 762/83 the Board stated, at p.ll: T
"We agree that there is no obligation on the Employer to
pay for either the ~xpenses or the time.spent by an employee
commuting between his home and his headquarters. We further
agree that the Employer has'no control over where an
employee chooses to live and. that by reason of that choice
the EmPloyer cannot be subjected to additional expense. It
is our finding, though, that this assignment to Mimico was
an internal developmental assignment of temporary .duration
and that in considering travel expenses for such. an
assignment the Employer should have considered its .~
undertaking to treat its employees in a 'fair and equitable'
manner~ By designating Mimico as the grievor's headquarters
and refusing to honour claims for travel expenses between
his home and Mimico, the Employer was in effect placing on
the qrievor all of the financial burden which would be
incurred at its reque, st for his development as a Probation
Officer in its service. In our view such a result under the
circumstances of this case would not be fair and equitable
to the grievor when travel and living expenses can be
allowable expenses for staff development courses. In other
words, we do not consider that it is necessarily fair and
equitable to allow the Employer to defeat any obligation.
which it may have to pay for travel expenses in connection
with internal staff development assignments by means of re-
designating an employee's_headquarters."
It is evident that the Board~in. the Muscatello case
interpreted Article 23 as applying only to cases where the
employee is required to go to'some place other than his regular
headquarters. In the latter case the Board was dealing with a
situation where the griavor was 'required to travel to a place
other than his regular headquarters. The EmploYer designated the
place where the grievor had to travel for the developmental
assignment as his headquarters and re~Used to honour his claims
for travel expenses between his home and the newly designated
"headquarters". In that case, the Board dealt With the propriety
of the Employer changing the grievor's headquarters and then
declining pay travel expense claims. For reasons'which are not
relevant in this case, the Board found that the change in
headquarters was not proper and, accordingly, the grievor was not
commuting between his home and his headquarters, for the purposes
of Article 23.
The parties have now dealt with the situation which arose in
the Muscatello case in Article 38.4.
In Re Williamson ~t al. and Ministry of Transportation and
Communicat$ons, 187/81 etc. (Barton), commenting on the purpose
of paying mileage, the Board s~ated, at p.8:
!
"With respect to the question of mileage in the Central
Region, it would be'an unusual Agreement which provided
mileage for employees to drive to a place of work on a
regular basis. Indeed the concept of mileage is, in the
private sector, normally reserved for situations in which
employees travel to some destination other than a regular
place of employment. We feel that in the situation in which
there 'is no regular place of employment, it is reasonable
for the Employer to designate some central area such'as
Downsview, Ontario as an assigned headquarters and to only
pay mileage from that assigned 'place of employment' to a
particular destination (job site)."
Once again, it is evident that various panels of the Board
have treated mileage and travel time payments under Articles 22
and 23 as only becoming applicable where the employee travels to
some place other than his or her regular headquarterS.
For the reasons above stated we find that Article 23 does
not cover the facts of this case. The Grievor had left "his
place of work and [was] subsequently called back to work prior to
the starting time on his next scheduled shift ..." within the
meaning of Article 14.1. In being called back to work, he was
required to go to his regular headquarters and this would not
bring Article 23 into operation. Article 22 only comes-into
operation where an employee is required to use his own automobile
on the Employer's business in.travelling to a place other than
his headquarters, for the sam~ reasons as apply in the case of
Article 23.-The fact that the Grievor was called back to work on
his day off and the fact that it was for an interview does not
affect~the result. The Grievor falls squarely within the
provisions of Article 14.1.
In ~e Charette and Ministr~ of Communitv and Social Services
26/88 (wilson),' the majority of the Board, in referring to the
subject of call back, stated at p.2: ..
"The union referred the Board to the arbitration decision
of P. C. Weiler in Re International Molders & Allied Workers
Union, Local 49 and Webster Manufacturing (~ondOn~ Ltd.
(1971), 23 L.A.C. 37, especially p. 40 quoted in E.E.
Palmer's Canadian Labour Arbitration. Law at p. 653:
'What the provision [a call-back clause] does is to
guarantee an employee a specified amount of minimum
earnings in certain overtime situations, whether the
company has .enough work for this purpose or not. The
reason why the parties negotiate this minimum is the
recognition of the fact that being required to leave
home and to. work usually involves significant
disruption and expense for an employee and it is only
fair that he should be guaranteed adequate
compensation. It is also designed to ensure that the
company, which gets the benefit of the employee being
called to work at an irregular time, be encouraged tn
make use of its powers only when this 'is important
enough to warrant the costs it will incur." (Emphasis
in original.)'
However one looks at the matter, the Grievor was called
back t~ work. The fact that the "work" in this case would
· involve an interview with Ministry officials, made it no less
work. All of the purposes of Article 14,1 were fulfilled. The
payment to the Grievor was to provide him with a guarantee of
adequate compensation for the significant disruption and expense
incurred by him as a result of the call back.
The essential element in a call back, as identified in the
Webster case at p.41, is that the:
" overtime work actually begins at a time when it is
necessary for [the employee] to make an extra trip to and
from work .... The objective of the clause is applicable
here and the ·guarantee should then be payable ..... "
The objective of Article 14'.1 is the same as that defined in the
Webster case and the'Grievor was recompensed for the
~neonvenience and travel time by the payment provided for~in.
Article 14.1. The quoted extract from the Webster case did not
require that~the travelling time be treated as time worked, it
merely served as a trigger for the operation of the call-back
provision. Given the provisions of the collective agreement, it
does not entitle an employee to travel, time payment between his
home and regular Place of work, nor is 'such travelling time
considered to be overtime worked. Rather, it is recompensed as
part of the guaranteed call back payment. The payment for the
time taken up in travelling is dealt with in the same way as is.
travel from an employee's r~Sidence to his or her regular
l~eadquarters. This subject has already been discussed.
Mr. Wilson, in the Charette case, noted at p.8:
" . . the wording of Article 14 clearly says 'leaves his
pla~e Of work and is subsequently called back prior to the
start time of his next scheduled shift.' That clearly means
the actual notification to report to work prior to the start
time of the .next scheduled shift Occurs after he'has left
the work place, i.e. between his scheduled shifts. It is
literally the archetypical call-back situation and that
only." (Emphasis in the original.)
It is irrelevant that the Grievor was at home on his day off, as
Article 14.1 applies equally to this situation as when an
employee is not on his or her day off.
Mr. Richards, relying on the Hayford case, sta~ed that if an
employee is entitled to kilometric rates under Article 22 and to'
time credits while travelling under Article 23, when he or she is
required to travel to a Place other than their normal
headquarters, identified as'an out of the ordinary situation, .why
should the employee not be paid for travelling, to the'regular
work place in an extraordinary situation. The reason has been
explained above: Articles 22 and 23 do not deal with travel
between an employee's residsnce and his or her regular
headquarters.
Mr. Richards also referred to Re London and District
AssQciation for the Mentally Retarded and ontario Public Service
Employees Union ~(1985), 16 L.A.C. (3d) 165 (Saltman). He
particularly referred to a reference made there to Re Wiberq and
Treasury Board (Ministry of Transport) PoS,SoR.B. file #166-2-286~
i~eatherill) (unreported). There, at pp.5 and 6, it was stated:
"Generally speaking, when an employee travels to his work
each day, he is not 'at work' until he actually arrives at
his office orplant or job site. If his residence is at
some distant locatiOn, that is his own affair. Once he does
'arrive at the office, however, he is said to beat work even
though he may not actually be performing the. particular
tasks appropriate to his classification. He may simply be
sitting at his desk waiting for an assignment, and yet he is
indeed 'at work' and entitled to be paid Likewise where,
in the Course of the day, he travels from one location to
another'for the purpose of performing his job, he is 'at
work' throughout that time. In the instant case, the
essence of the employer's oase is that the grievor did not
begin work on December 2nd until he arrived in Collingwood
at 7:30 a.m. that morning. The underlying assumption is
that his getting to work at Collingwood that day was the
griever's own business, just as his getting to work in
Toronto on any other day was his own business. Luckily for
the grievor, he was not asked to'report in Vancouver or
Halifax that day.
Merely to state this assumption is surely sufficient. It
is obviously false .... "
'At p.169 of the London_and DistriQt Association for the
Me~tally Retarded case, the Board concluded:
"In the instant case, the grie¥°r were engaged in
'traYelling to and from a conference in Chatham on February
9th and 10th in excess of their normal work hours. .In
accordance with generally accepted arbitral urinciples, the
board finds that the time spent in travel was 'work', at
least for the purposes of overtime compensation."
Mr. Richards argued that the last noted case could support a
conclusion that time spent in travel was work when it was not
travel in the usual sense of going to and from work for a normal
shift. When the London and District case. is read in its
entirity, it can be sa'eh that the decision to allow travel time
as "Work", was because the employee was travelling to a place
which was not his regularplace of work. At p.5 of the Wiberq
case it was stated:
"It is the Board's view that the employer's policy violates
the Over time provisions of~the Collective Agreement between
the parties. In our view, and we so find, the term 'work'
includes time spent by an employee in travel to a distant
location for the carrying out of an assignment, whether that
assignment is the employee's participation in a seminar or'
the performance of the employee's usual job duties."
Reference~was also made in the'London and District
AsSociation case to Re. CNR and Canadian TelecommuDicat~ons Union
(1978) 17 L.A.C. (2) 142 (Adams) at p.147:
We start w~th the proposition that the 'work' includes time
spent by an employee in travel to a distant location for the
purpose of carrying out his or her particular function.
While, generally speaking, an employee is not 'at work'
until he actually arrives at his office, plant or job site,
we accept the time spent travelling to an unusual and
distant location at the employer's request falls within the
ordinary and accepted meaning of the term 'work'.
Mr. Richards, as was noted, also argued, as a "fall back"
position, that the Grievor should be paid call back pay, not
merely for four hours, but for the period from the time 'he
received the telephone call (approximately 12:00 noon) to the
time of his return to his residence (approximatelY 6:00 p.m.).
It was submitted that the Grievor should have. been paid for six
hours call back, at over time rates, rather than for four hours.
The Grievor's entitlement under Article 14 can never be more than
four hours at 1 1/2 times his basic hourly rate. Where an
employee ·works in excess of the minimum p~riod of four hours, on
a call back situation, then payment would be made in accordance
with the provisions of Article 13.2:
"ARTICLE 13 - OVERTIME
13.2 In this Article, 'overtime' means an authorized period
of work calculated to the nearest half-hour and
performed on a scheduled working day in addition to the
regular working period, or performed on a scheduled
day(s) off."
In this case, the work was performed on a scheduled day off, and
if the Griev0r had worked for a period of six hours, he would
have been entitled to payment, pursuant to Article 13.1, for.six
hours at 1 1~2.times his basic hourly rate. For the reasons
given above, the Grievor cannot be considered to be working
during the travel time to and from his· regular place of work, and
the Collective Agreement does not address the subject of payment
from the time the Grievor received the telephone call to the time
he ret~!rned home. It is neither overtime, part of call back, nor
travel time under Article 23, nor can it attract "kilometric
rates", under Article 22.
For all of the above reasons, the grievance is. denied.
DATED AT 'Toronto, Ontario
this 8th day of Augus~990.
M. R. Gorsky, ViCe~hairperson
I.._Thomson, Member
M. O ' Toole, Member