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HomeMy WebLinkAbout1991-0390.Aubin.91-09-24 ONTARIO EMPLOYES DE LA COURONNE -& CROWN EMPLOYEES DE L 'ONTARtO GRIEVANCE C.OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STF~EET WEST, SUITE 2100, TORONTO, ONTA,~,rO. M5G 1Z8 TELEPHONE/TEL~PHO/',IE~ (4?$.J 326-~388 180, RUE OUNDAS OLIEST, SURE. AU 2100, TORONTO (ONTARIO). M5G 1Z$ FACSIMILE/T~L~-'COF"IE : {4 t6) 326- 1395 390/91 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Aubin) Grievor - and- The Crown in Right of Ontario (Ministry of Correctional Services) Employer BEFORE: G. Brandt Vice-Chairperson H. O'Regan Member A. Merritt Member FOR THE M. McFadden GRIEVOR Counsel Koskie & Minsky Barristers & Solicitors FOR THE T. Rioux EMPLOYER Grievance Negotiation Officer Ministry of Correctional Services HEARING August 29, 1991 DECISION The grievor alleges that the employer has failed to pay call back contrary to Article 14.1 of the Collective agreement. That article provides: 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 parties are in agreement on the facts. The grievor, a Correctional Officer II employed at the Cornwall Jail for approximately 20 years, suffered a compensable injury in 1984. As a result of complications arising from his injury the grievor was absent from work from October 11, 1990 to January 21, 1991 and was compensated therefor pursuant to both the Workers Compensation Act and the collectiv~ agreement. On November 28, 1990 the Superintendent of the jail wrote to the grtevor requesting him to attend at the Jail at 4:00 p..m. on December 7, 1990 in order that Mr. A. J. Roberts, Regional Manager of Correctional Services could discuss .the grievor's "attendance usage". The grievor, in the company of'his union representative, attended the meeting at which time his attendance record was discussed. Mr. Roberts expressed his concern over the grievor's use of sick time and his future prognosis~for attendance and warned the grievor that his overall attendance record must improve. On January 31, 1991 the grievor received a cheque for one and one half hours of overtime, reflecting the approximate one hour that it took the grievor to travel to and from the jail and to attend at the meeting. The grievor claimed that he should have been paid on a call back basis pursuant to article 14.1 and, upon learning that the Employer took the position that this article did not apply to this situation, filed the grievance that is before the Board. In order to qualify for call back pay it is necessary to establish: i) that the employee left his place of work; and ii) that he was subsequently called back to work prior to the starting time of his 'next scheduled shift. No issue has been taken with the question as tO satisfaction of the first of these two requirements. However, the parties have 3oined issue on whether, in the circumstances of this case, it can be said that the grievor has been called back to "work and, if so, whether that call-back has occurred "prior to the starting time of his next scheduled shift." The union argued that the meeting of December 7 constituted "work" for the purposes of Article 14.1. In support of that position counsel noted that the meeting had employment and possible disciplinary consequences for the grievor;., that it was held at the grievor's place of work; and that, although nominally a "request" to attend the meeting, was in reality a direction to attend at the 4 time specified. Counsel relied primarily on Koncz, 0748/88, to support the claim. In that case the grievor, a maintenance painter, was on sick leave from July 4 to Friday, July 8 and was scheduled to return to work on Monday, July 11. On July 7 the grievor attended at the employer's premises to pick up his cheque and to advise that he would be able to return to work the following Monday. As it happened an investigator from the Ministry of Labour was on the premises conducting an investigation under s. 24 of the Occupational Health and Safety Act and,' when it was learned that the grievor was on the premises, his Manager requested him to attend an interview which lasted approximately 15 minutes. The board allowed the grievor's claim for call back pay for the interview. On the question as to whether the interview could be characterized as "work", the board,, while admitting that the grievor's regular work was maintenance painting, nevertheless held that "attendance at the interview was sufficiently work related to constitute work". In the instant matter the union also made reference to Re Ajax and Pickering General Hospital 8 L.A.C. (2d) 440 (Weatherill) where a board, awarded call in pay to nurses who had participated, in a mock disaster exercise. Skmilarly, in Re Steinbergs and UFCW 20 L.A.C. (3d) 289 (Foisy), a board characterized voluntary attendance at an after hours training session as "work". The board noted that 5 "time worked may include activities other than those included in the employee's job description and those which he usually performs every day." The employer argued that attendance at the meeting of December 7 did not constitute "work" in so far as the meeting was not an integral or substantial part of the grievor's job and his responsibilities as a correctional officer did not continue during ~hat period. Counsel cited 2 cases in support of this position. In Mitteregger, 481/82, the grievor, a correctional office~, claimed overtime pay in respect of his 15 minute meal break during which time he was required to remain in his institution but was free of any responsibilities unless required to report for duty in the event of an emergency. In dismissing the grievance the board stated that "the test as to whether an employee is 'working'...is whether or not responsibilities continue during [the] period." The board held that, as the grievor had no responsibilities during his meal period and was not under the control of management, he was not at "work." See also Anwyll, 403/83 (Samuels) and Rutherford, 45/90 (Keller). In our opinion the grievor in the instant matter was called back to "work" when he was requested to attend the interview. The cases make it clear that it is irrelevant that an employee may not have been performing his/her ordinary duties during the period in question. Had the request to attend at the interview been made 6 while the grievor was at work attending to his regular duties there could be little question that he was "at work" during! that interview. We do not see the situation in this case as materially different. What is important, in our view, is that the reasons for the call back are employment related. There is little doubt that the meeting of December 7 to which the grievor was invited was employment'related. The issue to be addressed was his future employment status. Mr. Roberts was concerned about the prognosis for good 'attendance in the future. Although the agreed statement of facts makes no reference to possible termination for excessive, albeit innocent, absenteeism, it is entirely possible that Mr. Roberts was contemDlating just that possibility. It is significant, in this regard, to note that the grievor was represented at this meeting by the union. Cl.~arly, this was not a social occasion. Rather'it was employment r,~lated in a significant respect. Although the award in Koncz does not indicate the grievor's connection with the safety issue that was being investigated it would aDpear that the meeting of December 7 was at least as employment related as the interview which the board in Koncz found to constitute "work." Therefore, we find that the requirement of Article 14.2[, viz that the grievor be called back to "work" has been satisfied. The more troublesome issue ie whether the grievor was called 7 back to work "prior to the starting time of his next scheduled shift." Where employees do not work "scheduled shifts" the board has held that they are not entitled to call back. See Re Baker/Elliott, 90/89 (Kirkwood) The employer maintains that, in the circumstances, of this case, this requirement was not met as there was no "next scheduled shift" that could be identified at the time of the call back. It is submitted that, on December 7 when the meeting was held, the grievor was off for an indefinite period; that at this time it was not known by either the employer or the grievor when he would be returning to work. Indeed one of the purposes of the meeting was to determine precisely when the grievor would be returning to work. Consequently, it is suggested that the union has failed to establish that the call back occurred prior to the time of any "next scheduled shift". The union maintains that the circumstances of this case fit literally within the requirements of Article 14.1 in that the call back occurred prior to the shift worked by the grievor on January 21, which shift was, in the submission of the union, the "next scheduled shift". In our view, Article 14.1 contemplates that, at the time of the call back, employees are scheduled to work a subsequent shift. Had the word "scheduled" been omitted from Article 14.1, such that the premium pay was due for call backs prior to the "next shift", the submission of the union may have carried greater weight. In 8 our opinion the term "scheduled shift" speaks to the situation in existence at the time of the call back and does not refer, as the union claims, to a shift to be scheduled at some indetermina~:e time in the future. This interpretation is consistent with the well understood purpose of call back clauses, viz, to compensate employees for the inconvenience attached to being called back to work outside normal scheduled working hours. A work "schedule" permits an emplcyee to plan his/her personal affairs; it identifies the periods of time when the employee is contractually committed to provide service to the employer. Consequently, demands by the employer which are made outside that schedule may cause inconvenience for which some compensation becomes ~ayable. However, .where at the time of the call back there is no scheduled time for the employee's next return to work, the sense in which it can be said that the employee has been inconvenienced by the call back becomes somewhat attenuated. We do not consider the grievor to have suffered the kind of inconvenience that is contemplated by Article 14.1 of the collective agreement. At the time of the meeting he was off work and on compensation. He was given a full week's notice c.f the meeting and, had it been necessary to rearrange the time of the meeting to accommodate some other conflicting commitment, could have taken measures to do so. [The agreed facts do not state that 9 the particular time of the meeting created any special inconvenience to the grievor.] We accept that the grievor suffered some inconvenience in being required to go to his place of work to attend an interview that was related to his employment. .However, the request of the employer was quite reasonable. The grievor had, at the time of the letter, been absent from work for approximately 6 weeks and the employer was legitimately interested in knowing when he would be able to return. Clearly the approach taken here is to be preferred to one in which the employer, without interviewing the employee at all, takes action to terminate employment. In reaching this conclusion we do not believe that we are departing from the results or the reasoning in Koncz. First, it may be noted that in Koncz the grievor had been scheduled to return to work at the time that he was called back. Thus, the circumstance which we consider to disentitle the instant grievor to relief did not act as a bar to relief in Koncz. Secondly, there is a stronger sense in which it can be said that the grievor in Koncz was inconvenienced by the employer's demand. While it is true that the grievor was already at his place of work when he was requested to attend the interview, he had no advance notice that his presence would be required. He was justifiably entitled t~ assume that his employer would make no demands of him until the following Monday when he returned to work. 10 It was suggested by counsel for the union that, insofar as the matter in issue has been dealt with by the board in Koncz, we out to be guided by the observations of the Chairman of the Board in Blake et al. 1276/87, 1342/87 etc. (Shime). We do not consider our disposition of this case to be in contravention of the guidelines established in Blake. In our opinion Blake does not prevent a particular panel of the Board from finding relevant factuai distinctions between cases. Blake requires that different panels of the Board not overrule earlier decisions of other panels unless the circumstances are "exceptional". It does not, however, require a panel to follow an earlier case where that case can be distinguished on grounds which are material and relevant. Our decision in this case does not undermine the conclusion reached by a different panel of the Board in Koncz. We merely find that, for the reasons set out above, the circumstances of the instant case are different from those presented in Koncz and Justify a different result. Consequently, for the reasons given, the grievance is dismissed. DATED at LONDON, Ont. this ?&th day of .~-pr,mh,~, , 1991. G. J. Brandt, Vice Chair H. O'Regan, Union Member / '~ I. , , A. Merritt, Employer Member