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Home My WebLink About1993-1782.Gonzalez.94-04-11 .~.- --- -- ONTARIO EMPLOYES DE LA COURONNE - CROWNEMPLOYEES DE L 'ONTARIO - J2 1111 GRIEVANCE COMMISSION DE .~ ....---" , SETTLEMENT REGLEMENT . BOARD DES GRIEFS " 180 DUNDAS STREET WEST SY/TE 2100, TORONTO, ONTARIO. MSG 1Z8 TELEPHONEITELEiPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2700, TORONTO (ONTARIO) M5G 1Z8 FACS/MILE ITELlicOP/E (416) 326-1396 1782/93 I IN/THE MATTER OF AN ARBITRATION t I Under I THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT , I Before I THE GRIEVANCE SETTLEMENT BOARD I I BETWEEN OPSEU (Gonzalez) I \ Grievor - and - The Crown in Right of ontario (Ministry of Correctional Services) Employer BEFORE w. Kaplan Vice-Chairperson FOR THE G Adams GRIEVOR I 'Grievance Officer Ontario Public Service Employees Union i I I FOR THE M Mously I EMPLOYER Grievance Administration Officer Ministry of Correctional sepices I I HEARING March 31, 1994 , I I I 1 I \ ) \ -,...., - - 2 '" Introduction This case, concerning the allegation of a violation of Article 23 5 of the I Collective Agreement, cam~ before an expedited panel of the Board at a hearing in Toronto None of the material facts are 'in dispu~e , . I The grievor is a Correctional Officer employed at the Toronto East Detention Centre On August 2, 1993, the grievor was scheduled to work a ~ twelve hour shift. His shift was scheduled to commence at 06 45 hours and conclude at 19 15 hours August 2, 1993 was a paid holiday as outlined in Article 48 1 of the Collective Agreement "- When the grievor arrived at work he was assigned to supervise an inmate at ! a local hospital This assignment was scheduled to last for the full shift. The grievor made use of one of the employer's vehicles to travel to and return from this assignment. As noted above, the grievor '!Vas scheduled to I work until 1 9 1 5 hours However, the Correctional Officer assigned to relieve the grievor did not arrive at the hospital until approximately 19 1 9 hours. The grievor returned to the Toronto East Detention 'Centre after being relieved, and 'ended his shift at 19 45 hours ( Issue in the Case The union takes the position that the grievor should have received travel time pursuant to Article 23 5 of the Collective Agreement for the time spent traveling in the employer's vehicle at the conclusion of his shift. The : employer takes the position that the grievor should receive overtime pay pursuant to Article 19 1 of the Collective Agreem~nt for the extra thirty minutes worked ) ------ . 3 ( " The Collective Agreement Article 23 5 of the Collective Agreement provides i 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 c Article 1 9 1 of the Collective Agreement pro~ides I I Where an employee works on a holiday mcluded llnder Article 48 (Holidays), he shall be paid at the rate of two (2) times his basic hourly rate for all hours worked with a minimum credit of seven and one-quarter (7-1/4), eight (8), or the number of regularly scheduled hours, as applicable Union ArQument The union took the position that travel was not an integral part of the grievor's duties and responsibilities and, moreover, that Article 23 5. clearly required that the employer compensate employees for travel time' when they were required to travel on a holiday August 2, 1993 was a holiday, as setout in the Collective Agreement. The grievor was required; ) I to travel on this holiday, and the union argued that not only should the grievor receive four hours pay for this travel, but that the gnevor should be ,paid at double his ordinary hourly rate because of the fact that August 2, 1993 was a holiday It was important, Mr Adams argued on behalf of the union, that the intention of provisions of this kind be kept in mind, and he submitted that the intention was to impose a penalty on the employer and grant a premium to the employee for having to travel on a holiday It was immaterial, in this respect, whether the travel was contiguous to or independent of a shift. '. ~- --- .---.----- -- 4 I q. In support of these submissions, Mr Adams referred to the Pool 596/83 (Roberts) award wherein the Board held that "Article 23 solely contemplates payment of time credits for the p~riod of tIme during which employees are engaged in the physical act of movement from one place to another on government business (at 8) The grievor's activities on the day - in question, Mr Adams submitted, fell squarely within this d~finitlon, and he asked that I issue a order reqUiring the 'employer to compensate the I grievor accordingly' ( Employer Argument Mr Mously, on behalf of the employer, began his submissions by noting that it was commonplace for the employer to require Correctional Officers to take up their duties outside of the institution, and he pointed out that the ( grievor's position specification specifically provided for the ,griev9r to act as an escort in the transfer and movement of inmates between institutions J and hospitals Mr Mously also submitted that It was the Ministry's longstanding practice to pay Correctional Officers overtime for hours I worked at the end of the shift, and he referred to some documentary evidence introduced as an exhibit in .support of this proposition In the employer's submission, the grievor was not "traveling" when he I returned from his hospital duties but was "working", and he referred to Wright 0249/89 (Fisher) in support of this position In that case the Board. - - ' held that time is properly characterized as "work" If either' a) travel during the employee's regular hours of work is an inherent part of his job, or, l' (b) there is a continuing responsibility on the part of the ! employee during ithe period of travel to care for either \ -- - -5 Ministry property 0r other personnel (at 4) \ ~ Mr Mously argued that thegrievor met both parts of this test, and that being the case, the time spent traveling was work, and was not captured by Article 23 5 The Marcotte 54/78 (Adams) and perger 189/88 (Kennedy) cases were also cited In support of the employer's position Union Reply ... In reply, Mr Adams argued that Article 23 5 spoke for itself, and he argued that there was nothing wrong with an employee cherry picking the best provision in a collective agreement provided that there was no pyramiding According to Mr Adams, the facts established that the grievor's shift ended at 1 9 1 9, and given that fact, his time spent traveling at the conclusion of his shift attracted the travel time benefits of Article 23 5. The union again asked that I issue a declaration to that effect. Decision Havingcarefulfy considered the evidence and submissions of the parties, I am of the view that this grievance should be dismissed Traveling between institutions is not, on the evidence before me, a daily activity for~ i Correctional Officers It is clearly, however, one of their duties, and the gnevor's position specification indicates as much When this fact is - combined with the fact that the grievor was, when returning from the hospital, responsible for the employer's vehicle, the conclusion is inescapable that he was working and not traveling ( The parties have, In their Collective Agreement, distinguished between overtime worked on a holiday and traveling which takes place on a holiday, and they have agreed on different measures of compensation for each What ( . 6 ~ ~ travel took place on this particular occasion was dunng the grievor's work 1 -/ hours, and when those hours exceeded his scheduled shift he was entitled to overtime as provided for in Article 1 9 As the grievor was ultimately compensated according to this provision, the gnevance IS dismissed ~ DATED at Toronto this 11 day of Apri11994 !I'.,/(~ -~--------------- William Kaplan f Vice-Chairperson \ J \ i , /