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HomeMy WebLinkAbout1997-0389.Adams Group.00-03-20 Decision o NTARW EMPU) YES DE LA COURONNE CROW"! EMPLOYEES DE L 'ONTARW .. GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONE/TELEPHONE, (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILE/TELECOPIE. (416) 326-1396 GSB # 0389/97 OPSEU # 97D641 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Emplovees Umon (Adams Group) Grievor - and - The Crown m RIght of Ontano (Mimsm of the SOlICItor General and CorrecTIonal ServIces) Employer BEFORE RIchard Brown Vice ChaIr FOR THE Ed Holmes GRIEVOR Counsel Rvder Wnght BlaIr & Dovle FOR THE Len M~ EMPLOYER Counsel Legal ServIces Branch Management Board of SecretarIat HEARING October 12,13 1999 Jan~ 1112,2000 FebruaI) 3 29 2000 ThIS group gnevance, dated February 20, 1997, contends unclassIfied employees at the Elgm-MIddlesex DetentIOn Centre were Improperly demed stand-by pay The group IS compnsed of forty-mne correctIOnal officers, five nurses and one cook. In a memorandum of agreement dated, March 18, 1997, the partIes agreed any mdIvIdual gnevances dealIng wIth the same Issue would be mcluded m the group gnevance The umon's pnmary claim IS for stand-by pay In the alternatIve, the umon seeks on-call pay Accordmg to the employer, the gnevors are entItled to neIther form of payment. The gnevances were filed under the 1994-98 collectIve agreement. The provIsIOns of the agreement relatmg to stand-by and on-call are the same for all employees, save for the numbenng of relevant artIcles Those applIcable to correctIOnal officers are found at CORIO and CORll As to stand-by, artIcle CORIO states CORIO 1 "Stand-by TIme" means a penod of tIme that IS not a regular workmg penod dunng WhICh an employee IS reqUIred to keep hImself or herself (a) Immediately available to receIve a call to return to work, and (b) Immediately available to return to the workplace CORIO 2 No employee shall be reqUIred to be on standby unless such stand-by was authonzed m wntmg by the supervIsor pnor to the stand-by penod, except m CIrcumstances beyond the Employer's control CORIO 3 Where stand-by IS not prevIOusly authonzed m wntmg, payment as per ArtIcle CORIO 4 shall only be made where the supervIsor has expressly advIsed the employee that stand-by IS reqUIred. 2 CORIO 4 When an employee IS reqUIred to stand-by, he or she shall receIve payment of the stand-by hours at one-half (l/2) ills or her basIc hourly rate wIth a mmImum credIt of four (4) hours pay at ills or her basIc hourly rate As to on-call, CORII states CORII 1 "On-Call Duty" means a penod of tIme that IS not a regular workmg penod, overtIme penod, stand-by penod or call back penod dunng WhICh an employee IS reqUIred to respond wItilln a reasonable tIme to a request for (a) recall to the workplace, or (b) the performance of work as reqUIred CORII 4 Should recall to the workplace be reqUIred the employee IS expected to be able to return to the workplace wIthm a reasonable tIme CORII 5 No employee shall be reqUIred to be on-call unless such on-call duty was authonzed m wntmg by the supervIsor pnor to the on-call penod, except m CIrcumstances beyond the Employer's control CORl16 Where on-callIs not prevIOusly authonzed m wntmg, payment as per ArtIcle CORII 7 shall only be made where the supervIsor has expressly advIsed the employee that he or she IS on-call. CORII 7 Where an employee IS reqUIred to be on-call, he or she shall receIve one dollar ($1 00) per hour for all hours that he or she IS reqUIred to be on-call The hours worked by classIfied employees fall mto two broad categones Some of theIr hours are scheduled days m advance Other hours are allocated on much shorter notIce The gnevance contends employees are 3 entItled to stand-by or call-m pay because of the state of read mess they are reqUIred to mamtam to perform work assIgned on short-notIce Counsel proposed a senes of alternatIve formulatIOns of the umon's claim. Each of these proposals excludes payment for any hours actually worked and for any tIme after an employee has completed forty hours of work m a partIcular week. WIth these two exclusIOns, the umon seeks 1 Stand-by pay for all hours around the clock; 2 In the alternatIve, stand-by pay for peak hours--1.e those Immediately precedmg the commencement of a shIft--and on-call pay for all other hours, 3 In the further alternatIve, stand-by pay for peak hours, 4 In the further alternatIve, on-call pay for all hours around the clock; and 5 In the final alternatIve, on-call pay for peak hours I The umon relIes upon a senes of memos relatmg to correctIOnal officers The earlIest memo, dated December 15, 1993, IS from then supenntendent, Mr G SImpson, to the umt chairperson, Don Smythe Mr SImpson wrote The followmg are Issues that were raIsed at the Employee RelatIOns CommIttee on November 26, 1993 and whIch I agreed to consIder and then notIfy you of my decIsIOn. 1 VacatIOn tIme for unclassIfied correctIOnal staff Management will agree to accommodate the unclassIfied correctIOnal staff whenever possible but unless they are 5,peczjically authorzzed otherwzse, they are reqUlred to remazn avazlable at all other tzmes (emphasIs added) 4 Other memos are addressed to unclassIfied officers In a memo dated June 16, 1994, Paul Downmg, Semor AssIstant Supenntendent, wrote It has become mcreasmgly eVIdent to the undersIgned that numerous contract correctIOnal officers have been unavailable for work for a vanety of unacceptable reasons I would like to remmd all casual contract correctIOnal officers of theIr contractual responsibilItIes to the Elgm-MIddlesex DetentIOn Centre Contract correctIOnal officers are employed to provIde backfill coverage for classIfied correctIOnal officers who are absent from scheduled work. These absences could be caused by sIckness, vacatIOn, mJunes, staff traImng, secondment, labour relatIOns meetmgs and an assortment of unforeseeable reasons One of the core or essentlal re5,ponslbllztles dutles of a casual contract correctlOnal officer lS to ensure one lS avazlable when operatlOns reqUlre a backfill for classified correctlOnal staff Further, contract correctIOnal staff receIve vacatIOn pay m lIeu of tIme off, and It IS therefore thlS employer's expectatlOn that unless there are extraordznary or unusual Clrcumstances all casual contract correctlOnal officers be avazlable when called to meet the operatlOnal reqUlrements of thlS workplace (emphasIs added) In a memo to unclassIfied officers, dated October 24, 1994, Mary Jo Knappett, Semor AssIstant S upenntendent, wrote As an mstItutIOn we contmue to expenence dIfficulty meetmg our operatmg reqUIrements wIthout mcurrmg overtIme costs Our pnncIpal means of accomplIshmg tills IS through the utilIzatIOn of unclassIfied correctIOnal officers who are contracted to be available "as reqUIred" Attempts were made to gam some measure of control over thIS by dIrectmg unclassIfied staff to formally request all days/sillfts they reqUIred off to the undersIgned/schedulmg officer We contmue to be m the posItIOn of paymg premIUm costs for salary when casual hours 5 are techmcally available, however the casual officer cannot be contacted for schedulIng purposes In an attempt to gaIn a measure of control over thIS concern records will be mamtamed by the schedulIng officer/shIft supervIsor documentIng when casual correctIOnal staff are not available for duty Thzs wzll znclude znstances where the correctlOnal officer could not be contacted dzrectly by means of thezr recorded phone number as well as any znczdents ofbezng unavazlable due to a non-work related commztment, whether or not zt has been requested and approved by the underszgned schedulzng officer In the event of two znczdents of non-avazlabzlzty zn a one week perzod (Monday to Sunday) an zntervzew wzll be scheduled between the unclassified officer and an approprzate manager (emphasIs added) Shortly after the Issuance of thIS memo, an unclassIfied officer requested stand-by pay RIchard Stewart made thIS request In a letter to Ms Knappett. He was answered by Mr R. McConnell, Deputy S upenntendent, In a memo dated November 2,1994 ThIS memo will confirm my receIpt of your letter to Semor AssIstant Supenntendent Ms M. J Knappett, dated October 19, 1994, concernIng the above sub] ect. "Stand-by tIme" means a penod of tIme whIch an employee IS reqUIred to be Immediately available to receIve a call to return to work and Immediately available to return to the workplace As an unclassIfied employee, when you are contacted by telephone or pager, the reqUlrement of your recall wzll be as soon as posszble and not zmmedzate unless you have been advIsed that "stand-by" duty IS reqUIred. Mr Dowmng's memo of June 16, 1994 states that "one of the core or essential responsibilItIes/dutIes of a casual contract correctIOnal officer IS to ensure one IS available when operatIOns reqUIre a backfill for classIfied correctIOnal staff" Therefore your request IS demed. (emphaSIS added) 6 In another memo to unclassIfied officers, dated December 13, 1994, Ms Knappett wrote ALL requests regardmg schedulIng should be dIrected to the attentIOn of the Schedulmg Officer These requests would mclude requests for tIme off and non-availabilIty AvailabilIty also was mentIOned m letters about contract renewals sent to unclassIfied officers m 1995 by Gary Hogarth, Deputy Supenntendent ThIS IS to advIse you that your last date of employment wIth the Elgm- MIddlesex DetentIOn Centre, MImstl)' of SolIcItor General and CorrectIOnal ServIces IS October 31, 1995 However, your contract may be renewed based upon satIsfactory work performance and avazlabllzty (emphasIs added) Wntten notIce of tlus termmatIOn IS bemg gIven to you m accordance wIth SectIOn 4 of RegulatIOn 286, of the Employment Standards Act. The unIOn called five employees who have worked as unclassIfied officers Four held thIS posItIOn when the group gnevance was filed and are sIgnatones to It. They are RICk Bradshaw, Drew Burrell, Jason Melmer and Paul SchIedel The fifth officer to testIfy IS Heather Rmgel who was lured m May of 1997 Mr Bradshaw IS a former chIef steward and member of the schedulIng commIttee He estImated that eIghty per cent of the calls he has receIved reqUIred an Immediate response, leavmg no tIme to make supper or walk hIS dog. To facilItate a prompt return to work, he kept a umform m hIS car along WIth lus cell phone Mr Bradshaw testIfied about a conversatIOn he had wIth LIeutenant Bob Tuff m late 1994 or early 1995 Mr Tuff told Mr Bradshaw that LIeutenant Johnson had a "lut lIst" often employees who mIght not have theIr 7 contracts renewed for failIng to respond to telephone calls "As a fnend", Mr Tuff warned Mr Bradshaw to "stIck by" hIS telephone Later m hIS testImony, Mr Bradshaw described what he had heard about a hIt lIst as a "rumour" He testIfied that he "lIved by the phone" as an unclassIfied employee He eventually began takmg a cell phone to the washroom. Mr Bradshaw testIfied that more than once he was recorded as not available when he mIssed a phone call while usmg the washroom at home He receIved three such notatIOns m 1994 for not respondmg to calls while at hIS cottage He had taken a cell phone to the cottage wIthout realIzmg It was m an area wIthout cellular servIce Mr Bradshaw was not dIscIplmed or counseled as a result of thIS mCIdent. In exanunatIOn-m-chIef, Mr Bradshaw testIfied he would not have dared to declme a call to work because of what happened to an unclassIfied nurse, DebbIe McFadden. The McFadden mCIdent IS described below In cross-exammatIOn, Mr Bradshaw conceded he may have refused a ShIft when asked to work, but not ordered to do so Also m cross-exammatIOn, Mr Bradshaw was referred to the standard form contracts he sIgned as an unclassIfied employee Among the terms and condItIOns of employment lIsted IS one statmg- "Authonzed Hours of Work as reqUIred up to 40 hours per week." Mr Bradshaw conceded some degree of availabilIty to work was a reqUIrement of hIs contracts As Mr Bradshaw's eVIdence about hIS personal expenence IS representatIve of the testImony gIven by other officers, less need be said about theIr eVIdence Mr Burrell testIfied he could not recall ever refusmg to return to work. Often he was "told" to return to work, rather than bemg "asked" LikewIse, Mr Melmer could not recall refusmg to work. Mr 8 SchIedel also testIfied about bemg told to report to work. He estImated he had refused less than ten ShIftS over the years Ms Rmgel testIfied she was sometImes told to report to work. She has refused to work "once or "twIce" due to sIckness or a family funeral. In early 1999, Mr SchIedel and Ms Rmgel were called to separate meetmgs wIth Murray Laird, Deputy Supenntendent. Each of these unclassIfied officers was told that, between April and December of 1998, he or she had been unavailable on more occaSIOns than the average of 3 5 for unclassIfied officers Mr SchIedel was told he had mne and Ms RIngel was told she had 10 Accordmg to Mr SchIedel, Mr Laird said he was creatmg a process whereby he could termmate employees who mIssed too many phone calls Mr SchIedel was told the meetmg was non-dIscIplmary but a letter would be placed m ills file The day after the meetmg, Mr Laird said there would be no letter, but he would make a note of the meetmg m hIS date book. Ms RIngel was told Mr Laird would keep a note m order to have a record m the event her contract was not renewed. In a memo to unclassIfied nurses, dated October 24, 1994, Kevm Killough, Health Care Coordmator, wrote Further to our meetmg of October 21, 1994, thIS serves to confirm our new polIcy wIth respect to availabilIty of casual contract nurses for work. EffectIve Immediately, It IS the expectatIOn of tills employer that all casual contract nursmg staff be readzly avazlable to provIde staffing coverage for the department Tn the event of the absent classified nurse(~) In an effort to ensure the operatIOnal reqUIrements of the department are met, casual contract nurses may mdIcate they are not available for 9 work on two (2) days only m any gIven seven day work week. Requests to be not avazlable must be submztted to myselfm wntIng two weeks m advance Non-availabilIty related to illness will not be mcluded m the above noted polIcy/procedure ThIS form of non-availabilIty will be momtored closely through our Attendance ReVIew process (emphasIs added) The foregomg memo was entered m eVIdence along wIth an undated polIcy, sIgned by Mr Killough, statmg- The followmg procedure will go mto effect Immediately 1 In the event that one nurse IS unable to report for scheduled dutIes, all efforts will be made to contact a casual contract nurse to provIde ShIft coverage 2 In the event that none of the casuals are available or It would result m overtIme for them, a classIfied employee who has sIgned up on on the overtIme sheet will be contacted. If no one sIgns up, It IS the supervIsor's dIscretIOn on who IS called, eIther a classIfied or a casual, for the overtIme 3 In the event no other nurse IS available to provIde the second nurse coverage, the department will work on a "Pnonty Nursmg" mode until relIeved. The supervIsor will contact classIfied staff usmg a "Reverse Semonty" process and order them to report for duty 4 If a classified staff cannot be reached, a casual contract nurse wzll be called and ordered to report for duty (emphasIs added) DebbIe McFadden began workmg as an unclassIfied nurse m January of 1994 She was dIscharged for refusmg to obey an order to report to work on November 13,1994 Ms McFadden was scheduled to work from 1900 to 23 00 that day In the mornmg, Mr Killough phoned her about reportmg for duty at 11 00 She declmed to do so, explaImng she had another 10 commItment. When ordered to work nonetheless, she refused. Ms McFadden was termmated "for cause" m a letter dated November 23, 1994 from Mr R. McConnell, Deputy Supenntendent. She was remstated pursuant to a memorandum of settlement dated January 3, 1995 In the mmutes of settlement, the gnevor undertook "to make herself reasonably available for all ShIftS" In another memo to unclassIfied nurses, dated June 30, 1996, Mr Killough wrote The polIcy for N/ A days has been clanfied as follows You are allowed to pre-book 2 days off per week. These are approved days off You are expected to make yourself avaz lab Ie the rest of the tIme If you are called and there IS no answer, thIS IS consIdered an unauthonzed N/ A day, If you are called a message IS left and you do not return the call, IS an unauthonzed N/ A day For all unauthorzzed N A days, you wIll submIt an occurrence report to the undersIgned detazlzng the reasons for unavazlabllzty If you have an emergency, I e sIck chzld, you wIll call and state that you have an emergency and wIll be unavazlable for a few hours (emphasIs added) Asked m cross-exammatIOn whether she had declIned a ShIft smce bemg remstated, Ms McFadden answered m the affirmatIve She testIfied that, If called every day for a month, she mIght declIne 4 or 5 ShIftS She went on to say she mIght be called only once m two weeks Barry Thomas IS SenIor Human Resources Consultant for the mInIstry's western and central regIOns After thIS gnevance was dIscussed at mediatIOn, Mr Thomas wrote a memo to Supenntendents, dated July 2, 1999 11 Tills memorandum IS to clanfy the Issue of availabilIty for all unclassIfied staff It IS the employer's expectatIOn that unclassIfied staff be reasonably available for work. It IS not the employer's reqUIrement that unclassIfied staff be "Immediately" available to receIve a call to return to work and return to work. Nor IS It a reqUIrement that unclassIfied staff "respond wIthm a reasonable tIme to a request for recall to the workplace" The expectatIOn IS that unclassIfied staff be reasonably available, generally over the penod of theIr contract, to work and to be scheduled for work. There IS therefore no reqUIrement for unclassIfied staff to carry pagers or cell phones so that contact can be made In the event staff chose to carry pagers and/or cell phones, the employer will attempt to make contact by all available regIstered contact numbers DocumentatIOn should be kept by management regardmg unclassIfied employees' general availabilIty m combmatIOn wIth the number of hours actually worked by unclassIfied employees ThIS mformatIOn IS kept m order to ensure fairness m the dIstributIOn of hours and to reflect the levels of general availabilIty of hours In the event a partIcular employee's lack of availabilIty greatly exceeds the level of theIr peers and theIr hours of work are lower than the average hours worked, an mtervIew may be scheduled by management to dISCUSS the Issue The mtent of the mtervIew IS sImply to bnng the matter to the attentIOn of the employee and to offer the opportumty to dIsclose Issues affectmg availabilIty (e g. alternate employment, child care responsibilItIes, etc ) so that adjustments may be made If necessary and/or appropnate In the event you have questIOns or concerns regardmg thIS correspondence, please feel free to contact the undersIgned or another member of Human Resources In cross-exammatIOn, Mr Thomas was asked to compare the polIcy described m hIS memo wIth the contents of some of the documents produced by the umon. As to Mr SImpson's memo, Mr Thomas testIfied a reqUIrement to be available at all tImes, except when on approved leave, was 12 not mmIstry polIcy Asked about the last paragraph of Mr Dowmng's memo, reqUInng employees to be "available when called upon", Mr Thomas said thIS reqUIrement was mconsIstent wIth mImstry polIcy "to a degree" He answered m the negatIve when asked whether mImstry polIcy was reflected m the last sentence ofMr McConnell's, reqUInng employees to be "available when operatIOns reqUIre a backfill" Mr Thomas charactenzed Mr Killough's memo of June 20, 1996 as gomg beyond mmIstl)' polIcy II Counsel for the umon relIes upon two decIsIOns of thIS board. Ontano Pubhc Servlce Employees' UnlOn (Apfelbeck) and Mlnzstry of the Envlronment, File No 1464/86, dated May 3, 1990 (SmmlOns), and Ontano Pubhc Servlce Employees' Unzon (BoUlllon) and Mlnzstry of the Envlronment, File No 2002/86, dated July 13, 1990 (FIsher) In each of these cases, the umon contended stand-by pay was owmg for certam hours for WhICh on-call pay had been receIved. In Apfelbeck, Mr SImmons awarded stand-by pay for peak penods when the need for employees to respond was partIcularly urgent. He wrote While It IS true that the employer has not mstructed the gnevors to respond Immediately the eVIdence IS clear that the employer was aware that the employees were operatmg under the understandmg that they were on "stand-by duty" and dId nothmg to change the gnevors' understandmg. In our VIew, ordmarily the employer must specIfically gIVe dIrectIOns that an employee IS "on call" or "stand by" duty However, sItuatIOns may anse, as m thIS case, where the employer IS aware that an employee belIeves that he IS operatmg under the stand-by artIcle of the CollectIve Agreement and accepts the benefit of ills servIce on that basIs, only to object later, such as the CIrcumstances of thIS case, WhICh gIven these cIrcumstances, cannot be permItted to do so (pages 20 and 21 ) 13 In BOUlllon, employees were dIrected m wntmg "to respond Immediately" when paged. In allowmg theIr claim for stand-by pay, m place of the on-call pay they had receIved, Mr FIsher succmctly described the ratIOnale for both forms of payment: [T]he purpose IS not to pay persons for workmg, rather the purpose IS to pay people for bemg ready to work. It IS also to compensate an employee for havmg to restrIct ills off-duty actIvIty to some degree, and dependmg on the degree of such restnctIOn, It IS eIther called on- call or stand-by and paid accordmgly (pages 3 and 4) Employer counsel also relIes upon two decIsIOns Ontano Pub!zc Servlce Employees' UnlOn (Jone5,) and MlnzStry of Attorney General and CorrectlOnal Servlces, File No 1099/93, dated September 12, 1994 (Devlm), and OntarlO Pub!zc Servlce Employees' UnlOn and MlnzStry of the EnVlronment and Energy, File No 120/95 (DIssanayake) In the latter case, the Issue was whether stand-by pay was owmg for certam hours for WhICh on-call pay had been receIved. In dIsmIssmg the gnevance, Mr DIssanayake wrote The umon led eVIdence about the mconvemences Imposed on an ERP's personal lIfe when on ERP duty However, that by Itself IS not determmatIve of anythmg. The Issue IS whether or not these mconvemences are consIstent WIth the on-call duty status [for WhICh the employees had been paid] In our VIew the answer must be m the negatIve [A]n ERP who exceeds the two hour tIme penod [for reportmg to the workplace] wIthout a reasonable excuse may be subject to dIscIplIne However, that IS fully consIstent WIth the status of on-call duty Surely, an ERP on on-call duty, who exceeds the standard of a reasonable response wIthout JustIficatIOn may m certam CIrcumstances be subject to dlsclplzne (pages 31 and 32, emphasIs added) 14 In Jones, the gnevor alleged he was "contmuously reqUIred to be available to report to work" He claimed eIther stand-by or call-m pay and management contended neIther form of payment was owmg. Ms. DevlIn concIsely recounted the eVIdence [T]he eVIdence mdIcates that work assIgnments are offered by telephone and that approxImately 1/2 of the sIufts available to casual CorrectIOnal Officers are offered one week m advance The remammg ShIftS are offered on short notIce It was the eVIdence of DanIel Urquhart, the InstItutIOnal TraImng Officer, that while there IS an expectatIOn that casual CorrectIOnal Officers will generally be available for work, they are not reqUIred to remam by the telephone or advIse the Employer of theIr whereabouts when they are not at work. They are also not reqUIred to accept a partIcular assIgnment and no record IS kept m the event that an assIgnment IS refused. As well, a procedure has been Implemented whereby casual CorrectIOnal Officers may advIse the Employer m advance If they are not available on specIfied days m WhICh case they will not be contacted dunng hIS penod. Nevertheless, the Gnevor testIfied that he understood that he was reqUIred to be available at all tImes to report for work. He based thIS understandmg on a memorandum to casual CorrectIOnal Officers from the Semor AssIstant Supenntendent WhICh stressed the Importance of them bemg available to cover weekend call-m ShIftS In addItIOn, the Gnevor relIed on the fact that the Employer made a notatIOn on hIS performance appraIsal concernmg Ius unavailabilIty on a number of days m January and February The Gnevor acknowledged that he dId not advIse the Employer m advance that he would not be available dunng thIS penod. (pages 1 and 2) In dIsmIssmg the gnevance, Ms DevlIn wrote Dealmg firstly wIth the matter of the Gnevor's performance appraIsal, there was no suggestIOn that the notatIOn was dIscIplmary and, m my VIew, It was not unreasonable for the Employer to draw to the Gnevor's attentIOn ItS concern WIth regard to Ius general availabilIty m CIrcumstances where he could not be reached for at least 15 days m a 15 2-month penod and gave no advance notIce to the Employer that he would be unavailable for work dunng tills tIme Moreover, neIther the notatIOn on the Gnevor's performance appraIsal nor the memorandum from the AssIstant Supenntendent lead me to conclude the Gnevor IS entItled to standby or on-call pay While there documents raise concerns wIth regard to general avazlabllzty, the eVIdence mdIcates the Gnevor IS not reqUIred to accept a partIcular work assIgnment and need not remam by the telephone or advIse the Employer of hIS whereabouts when he IS not at work. There IS also a procedure whereby the Gnevor and other casual CorrectIOnal Officers may advIse the Employer m advance m the event that they are not available on specIfied days In these cIrcumstances, I cannot conclude that the Gnevor IS reqUIred to be available for Immediate return to work or that he IS reqUIred to be respond wIthm a reasonable tIme to a request for recall to the workplace or the performance of other work. (page 3, emphasIs added) III In most of the cases mentIOned by counsel, the gnevors who claimed stand- by pay had already receIved on-call pay for the tIme m questIOn. In other words, there was no dIspute that they were reqUIred to mamtam one of the two states of readmess described m the collectIve agreement. The only questIOn was WhICh one of these states applIed as determmed largely by the tIme frame for an employee to respond to a call Stand-by duty reqUIres a faster response than on-call duty The eXIstence of a reqUIrement to mamtam one of the contractually specIfied states of readmess IS illghlIghted m MInistry of the EnvIronment and Energy, where Mr DIssanayake noted an employee was subject to dIscIplIne for failmg to report to work m the appropnate manner Of the cases cIted, Jones IS the only one to consIder whether a gnevor was reqUIred to mamtam eIther of the two states of readmess specIfied m the 16 contract. The decIsIOn m that case rests upon a dIstmctIOn between a reqUIrement of "general availabilIty", the term used by Ms Devlm, and the sort of reqUIrement gIvmg nse to eIther on-call or stand-by pay On any partIcular occasIOn, the gnevor was permItted not to take a call or not to work If contacted. In other words, mIssmg a call or refusmg work would not result m dIscIplme Tms IS why Ms DevlIn held he was not entItled to on-call or stand-by pay Yet there was a reqUIrement of "general availabilIty", as Ms DevlIn noted. The employer had stressed the Importance of bemg available on weekends When the gnevor had mIssed too many calls, hIS lack of availabilIty was noted on hIS performance appraIsal In short, the gnevor was reqUIred to be available a certam amount of tIme over the term of hIS contract. ThIS reqUIrement dId not entItle hIm to on-call or stand-by pay There IS a sound basIs for the dIstmctIOn drawn m Jones Both on-call and stand-by pay are desIgned to compensate an employee for bemg available m case he or she IS needed to work. The tacIt assumptIOn underlymg each form of payment IS that, throughout the penod for wmch It IS paid, an employee must take calls and must work If asked. As employer counsel argued, the collectIve agreement should not be mterpreted so as to entItle an employee to payment for any penod when he or she IS permItted eIther not to receIve a call or not to work If contacted. The gnevor m Jones could mISS a call or refuse work wIthout bemg dIscIplmed. Accordmgly, he was not entItled to on-call or stand-by pay IV How does the general pnncIple establIshed m Jones apply to the facts at hand? Were the gnevors reqUIred only to be generally available or were they 17 reqUIred mstead to mamtam one of the states of readmess described m the collectIVe agreement? I begm by consIdenng the sItuatIOn of correctIOnal officers Mr SImpson's memo states unclassIfied correctIOnal staff are to be available at all tImes unless tIme off has been approved. Mr Dowmng's memo says much the same NeIther specIfies what consequence, If any, flows from not bemg available ThIS matter IS addressed m the subsequent memo from Ms Knappett to all unclassIfied officers It states two mstances of an officer bemg unavailable--1.e not takmg a call or declImng to work--wIthm a smgle week will result m an mtervIew No consequence IS specIfied for only one such mstance The ImplIcatIOn IS that an officer may mISS one call or refuse one ShIft each week wIthout any Immediate consequence The memo does not mdIcate whether the meetmg to be held after two occurrences would be dIscIplInary m nature The only later memo to unclassIfied officers IS also from Ms Knappett. It contams no substantIve change relatmg to availabilIty and merely mdIcates schedulmg requests are to be dIrected to the schedulmg officer Mr McConnell's memo to Mr Stewart, respondmg to hIS request for stand-by pay, does not address the consequences ofbemg unavailable ThIS memo does not purport to change the general rule, prevIOusly commumcated by Ms Knappett, that an mtervIew will occur after the second mstance of non- availabilIty m a week. There IS no eVIdence Mr McConnell's memo was seen by officers other than Mr Stewart at the tIme It was Issued. The eVIdence mdIcates employees were sometImes "told" to work and sometImes "asked" Paul SchIedel conceded he has refused a ShIft on occasIOn. Heather Rmgel dId the same RICk Bradshaw admItted he may have 18 refused to work when asked, but not ordered, to do so Mr SchIedel and Ms RIngel were warned theIr contracts mIght not be renewed If theIr level of availabilIty contmued to be below average, but they were not dIscIplIned. As to unclassIfied nurses, Mr Killough's first memo stated they were expected to be available except dunng approved tIme off DebbIe McFadden's termmatIOn and remstatement sent mIxed messages about the consequences of bemg unavailable ThIS matter was addressed m Mr Killough's later memo statmg a nurse who IS unavailable wIthout authonzatIOn must "submIt an occurrence report" saymg why she was not available No other consequence IS mentIOned. Ms McFadden has declmed ShIftS smce her remstatement wIthout penalty The McFadden dIsmIssal and ItS reversal occurred two years before the group gnevance was filed. There IS no eVIdence of any causal employee bemg dIscIplmed durmg tills penod for reasons relatmg to availabilIty The same IS true of the three-year mterval between the filIng of the grIevance and the completIOn of the heanng. In summaty, unclassIfied nurses and officers were reqUIred to mamtam a level of "general availabilIty" satIsfactoty to management. When they sometImes mIssed a call or refused to work, they were not dIscIplIned. In tills regard, there IS no eVIdence calls made dunng peak penods, Immediately precedmg a change of ShIft, were treated any dIfferently than calls made at other tImes of day ConsIdenng all of the eVIdence, I conclude unclassIfied officers and nurses were not reqUIred to mamtam eIther of the states of readmess described m the collectIve agreement. Accordmgly, they are not entItled to stand-by or on-call pay The facts at hand dIffer m some respects 19 from those m Jones, but the general pnncIple underlymg the decIsIOn m that case leads to the same outcome m the mstant case The testImony of Mr Thomas mdIcates the level of general availabilIty reqUIred of nurses and officers at Elgm- MIddlesex DetentIOn Centre exceeded the level establIshed by mImstry polIcy As the reqUIrement related only to general availabilIty, hIS testImony does not support a claim for stand- by or on-call pay As no eVIdence was led about unclassIfied cooks, the umon has not met the burden of provmg they are entItled to any relIef The grIevance IS dIsmIssed. Dated at Toronto, thIS 20th day of March, 2000 RIchard Brown, VIce-Chair 20