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HomeMy WebLinkAbout1991-1606.McColl.93-07-12 ONTAR/O EMPLO YES DE LA COUt~ONNE · CROWN EMPLOYEES DE L'ON TARIO GRIEVANCE C,OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS tSO DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. M5G 1ZB TELEPHONE/T~-L~_PHONE: [4 ~6) $2G-1388 t50, RUE DUNOAS OUEST, BUREAU 2~00, TORONTO (ONTARIO). MSG 1Z8 FAC$/M/LE/Tt.~L~COPIE : (4 ~6) 326- 1395 1606/91 · IN THE MATTER OF ;tN ARBITRATION Under THE 'CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (McColl) -' Grievor --. - and - The Crown in Right of Ontario (Ministry of the Environment) Employer ' BEFORE H. Finley Vice-Chairperson E. Seymour ) Member D. Montrose. Member FOR THE C. Dassios GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE S. Patterson RESPONDENT Counsel Legal Services Branch Management Board of Cabinet HE~RING FebruarY 12, 1993 G S B 1606/91 DECISION The Grievor, Mr. Ken McColl grieves that he was improperly. paid for trips taken as a passenger outside his regular working hours, on April 4, 1991 (2 hours) and May 3, 1991 (1 hour and 5 hburs). It is his position that he should have received overtime rather than travel time for the eight hours in question because (a) these hours Were outside his regular working hours (b) travel is an inherent part of his job and ~ (c) his responsibility to his Employer continued during these times. Overtime is addressed in Article 13 of the Collective Agreement: 13.1 The overtime rate for the purposes of this Agreement shall be one and one-half (1 1/2) times the employee's basic hourly rate. 13.2 In this Article "overtime" means an author ize d p e r iod 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. Article 23 addresses 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. 23.6 All travelling time shall be paid at the employee's basic hourly rate or., where mutually agreed, by compensating leave. Mr. McColl has been with the Sault Ste. Marie District Office of the Ministry of the Environment since 1974. He occupies the position of an Environmental Officer 4. In this capacity he reports, investigates and develops clean-up plans for spills with other agencies if necessary, investigates and mediates complaints, enforces provincial statutes in his capacity as a~Provincial Offences Officer, carries out inspections and audits from the environmental perspective and fulfills a public relations role. At the time of the grievance he was asSigned to the northern and eastern ends of the~Algoma District. Mr. McColl frequently travels either as driver or as passenger to sites and meetings, both within and outside of his normal working hours of 0815 and 1630 hours. Due to the nature of his work, it is accepted that his working hours can be irregular. He testified that as either driver or passenger, he would, while en route, deal with any situation requiring his response, have contact with the Ontario Provincial Police if necessary and fill in for the supervisor if that person were unable to respond. It is mandatory that all spills be reported and Mr. McColl has been instructed that he should respond to spills which are.both inside and outside his designated area. As a passenger during a trip, he might prepare and label sample bottles, load cameras, participate in work-related discussions, observe the landscaPe for spills, listen for radio calls requesting response to spills or, he could sleep. Mr. McColl testified that the need to respond to a situation while in transit has happened infrequently when he has been travelling with someone, but on numerous occasions when he has been travelling alone. The tools of his trade are a supply of sample bottles, a camera and a list of industries and their telephone numbers in his District. Because his responsibility to respond to spills continues outside of his regular working hours, he normally has these at hand. When the Ministry vehicle, a van equipped with a CB radio, is required for a trip, certain procedures must be followed and Mr. McColl testified that he, as passenger would carry out the 2 following pre-departure procedures: - The day.journal must be signed to reserve the vehicle;' ~ The gas tank must be filled; - The destination log m~st be filled in'dicating destination and estimated time of arrival; - The. in-out board at reception must be filled in indicating destination, estimated time of return, and contact point. On April 4, 1991, Mr. McColl and Mr. Vic Huggard, a District Supervisor add a third Mlnistry employee, Mr. G.H.. Lahaye, the District Officer, travelled from Sault Ste. Marie to Elliot Lake returning th~ same day. They travelled to the site during work'ing hours, but their return trip of 2 hours and 10 minutes did not begin until between 16.15 and 16:30 hours. On the return journey, they.dropped Mr. Lahaye at the east end of Sault Sfe. Marie and Vic Huggard and Ken McColl proceeded to the Districf Office~ and after leaving the Ministry van there, made their way home. It was not clear from the evidence whether or not Mr. McColl drove Mr. Huggard to his home. Throughout this trip~ Mr. Huggard was the driver, and the Grievor was one of two passengers. ~During this trip, neither' Mr. Huggard, Mr. McColl, nor Mr. Lahaye was contacted or involved in any activities which could be classified as "active duties of an Environmental Officer 4" nor, according to the evidence, was there any work-related disc.ussi'on, other, than "office gossip" The second trip, the initial purpose,of which was to attend a meeting and which later included the inspection, of a spill site and the investigation of an alleged illegal dump, took place on May 2 and May 3, 1991. There .were some discrepancies in dates and time between the testimony of the two witness;. Mr. McColl and Mr. Huggard. Mr. McColl referred to May 2nd and 3rd, and Mr. Huggard to May 4th and 5th. Since May 4th and 5th fell on Saturday and Sunday in 1991, and no mention had been made of 3 weekend assignments or travel, the Board has preferred the evidence of Mr. McC°ll in this regard. ~ Mr. Huggard and Mr. McColl worked at the office until 14:00 hours on May 2nd and set out to investigate the spill and to drive as far as Wawa where they wou~d spend the night. Mr. Huggard testified that it was Mr. McColl's suggestion that they organize the time this way in order to.maximize their time in the office. They went to the site, viebed the tank and checked for oil spillage, and discussed remedial action and prevention. This was dealt with entirely by Mr. Huggard as the only thing required following the check was a discussion with the owner. Mr. Huggard does not recall discussing the spill during the drive from the site to Wawa. However, according to Mr. Huggard, Mr. McColl would have completed the form generated by the report to the Spills Action Centre on his return to the District Office. On May 3rd, Mr. McColl and Mr. Huggard left Wawa at 0715 hours and went to investigate the complaint aorth west of Chapleau. According to Mr. Huggard's testimony, they did so. However, t~eir .vehicle became stuck and they arrived at the meeting only at 15:00 hours, and departed between 16:15 and 16:30 hours. During the 5-hour trip back to Sault Ste. Marie, according to Mr. Huggard, they "saw no spills" undertook no environmental investigations and did nothing which would fall under the EnVironmental Officer 4 job specification'. At the end of May 1991, Mr. McColl submitted an Averaging Hours/Overtime Approval form indicating that from January 17, 1991 'to May 23, 1991, he had worked a total of 21.5 hours over and above his regular working hours on 7 different occasions. This submission was approved by Mr. Huggard and sent on to the ~Regional Office in Sudbury where three of the overtime submissions were disallowed on the grounds that the Ministry of the Environment does not pay overtime to passengers. Mr. McColl was told to amend his submission to reflect the fact that these three occasions were travel time. He did so.reluctantly, Mr. Huggard re-signed and Mr. McColl grieved. 4 In cross-examination, Mr. Huggard testified that it is not ~unusuai for the Grievor to travel both during and after working hours. He agreed that, under the current Ministry policy, if the Grievor had travelled during working hours and worked in the office afterwards that 'he would have received overtime for the ~ffice work but that i.f he were to do the opposite, he would not have received overtime under this policy. Argument The Board was referred to the following cases which provided the arbitral context for its decision: OPSEU (Anwyll) and The Crown in Right of Ontario (Ministry of Government Services), GSB 406/83 OPSEU (clements) and The Crown in Right of Ontario (Ministry of Trans~0rtation), GSB 370/84 OPSEU (Wright) and The Crown in Right of~ Ontario (Ministry of Labour), GSB 1249/89 OPSEU (Rutherford) and The Crown in The Right of ~ Ontario (Ministry of Transportation), GsB 0045/90 OPSEU (Wang et al) and The Crown in Right Of Ontario (Ministry of Consumer & Commercial Relations), GSB 1888/90,1889/90,1890/90, 1898/90 Mr. Chris Dassios for.the Union, argued that everyone who is an Environmental Officer or a .Supervisor.must look for spills and that this is true whether there is one person or two in the vehicle. He submitted as well, that Mr. McColl, as a passenger, has a number of potential duties depending on the specific circumstances. The fact that Mr. McColl happened t° be a passenger on the occasions in question was simply fortuitous and one cannot, Mr. Dassios submitted, have a decision respecting overtime based on fortuitous events. Rather, the Employer's having someone ready to act, he maintained, is the appropriate basis for 'determining overtime. Mr. Dassios argued that an affirmative answer to either' the question of travelling as an inherent part of the job or of responsibility to the Employer was 5 sufficient to trigger the overtime as opposed to the travel time response. Mr. 'Stephen Patterson, Counsel' for the Employer,- submitted that there is no dispute over the evidence of the activity during the two days in guestion~ and that the evidence demonstrates that the supervisor was doing all the driving and that the Grievor was merely a passenger. Mr..Patterson submitted that an affirmative answer was required to b6th questions to trigger the overtime as opposed to the travel time'response and that consideration of the situation should take place in retrospect when the facts are~ known. He conceded' that driving is an inherent part of the Grievor's job but maintained that the Grievor was not fulfilling a responsibility to 'the Employer during the course of travel and based on that, the time should be credited as travel time as opposed to overtime. Decision It is agreed that driving is an inherent part of Mr. McColl's job. The issue of whether or not he was responsible to his Employer during the 8 hours he was a passenger in the Ministry vehicle driven by the District Supervisor Mr. Huggard, is in dispute. The question respecting responsibility that the Board must answer is threefold: 1. Whether the fact that the Grievor signed o. ut the vehicle and filled it with fuel means that he is responsible for its safe return and therefore responsible to his Employer during that time; 2. Whether or not Mr. McColl's readiness to respond to a spill during the period of travel can be said to constitute responsibility to his Employer; 3. Whether or not the fact that the District Supervisor, Mr. Huggard, or the District Officer, Mr. G. J. Lahaye was present would relieve him of any responsibility he might have. Responsibility for the Vehicle In the opinion of the Board, the fact that an employee fuels a vehicle creates no .ongoing responsibility for that vehicle. Nor does the fact that an employe~ uses the vehicle radio. However, when he or she u~es the radio for Ministry business, as the Grievor did when the vehicle became stuck at Chapleau, a responsibility to the Employer is demonstrated. The signing out of a vehicle means that should the Vehicle not return, it is to the individual who signed the vehicle out, that the Employer will turn for an explanation. Mr. Hugga~d indicated that he preferr,ed to drive but there was no evidence that the driver' and passenger could not have switched roles en route. Nor was there any evidence that there was a procedure which required the driver to be the person who sign~ out the vehicle or that a particular individual must be designated as the driver for the duration .of the trip. For these reasons, the Board finds that the signing out of the Ministry vehicle, created a responsibility in the employee for that vehicle, and therefore a responsibility to the Employer. That. does not, of course, relieve the driver of responsibility which he or she might hav~ in that role. Readingss to Respond There is, according to Mr. Huggard, a continuing responsibility for both himself and the Grievor, to report, enforce and keep in touch with the Employer. Mr. McColl was also in possession of the tools of his trade during the times in question, an indicator of his readiness to respond should he be called upon by his Employer via radio or other means, or by th? sighting of a spill to do so. The Ministry takes the position that Mr. McColl was "sitting there as a passenger.., just travelling". In other words, that he had no responsibility to the Employer during the period of travel. The evidence, in the opinion of this Board, demonstrates otherwise and the Board finds that Mr. McColl did have a responsibility to the Employer over and above the responsibility for the vehicle. ~. 7 Relief from Responsibility Mr.' Huggard also testified that should they be required to respond to a spill or complaint while en route, both would respond in the normal way but that-it would be Mr. McColl who. would record the incident on.return. Mr. McColl testified that both he and Mr. Huggard would respond to any spill if one.had occurred but' that he, Mr. McColl, would carry out those duties more efficientlY. There was no evidence as to the role which the District Officer might play in responding to a spill. Based on the evidence presented, the Board finds that the presence of the District Supervisor and the District OffiCer, did not relieve Mr. McColl of his. responsibilities to his Employer. In the result, the Board finds that travel is an inherent part of the Grievor's job and that during the time in question he had a continuing responsibility to the Employer. Therefore, the eight hours he spent in travel outside ~f regular working hours on April 4, and. May 3, 1991, attract payment at the overtime rate. The Board orders the Employer to compensate the Grievor for the eight hours, according to the overtime schedule, with interest, and remains seized in the event that there is difficulty with its implementation. Dated at Kingston this 12th day of July, 1993. '~.- Helen S. Finley, Vice ~Chair Edward Seymour', Member Douglas C.Montrose, Member 8