Loading...
HomeMy WebLinkAbout1997-1282.Elliot.99-11-10 Decision o NTARW EMPU) YES DE LA COURONNE CROW"! EMPLOYEES DE L 'ONTARW GRIEVANCE COMMISSION DE 1111 SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 Dr 'VDAS STREET WEST SL'lTE 600, TORONTO ON M5G 1Z8 TELEPHONETELEI'HONE. (416) 26-1'88 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G IZ8 FACSIMILE/TELECOPIE (416) 326-1396 GSB # 1282/97 OPSEU # 97E148 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano Pubhc ServIce Employees Uruon (Ron EllIOt) Grievor - and - The Crown m Right of Ontano (Mirustn of Labour) Employer BEFORE FehcI~ D Bnggs Vice ChaiT FOR THE Knstm Ehot GRIEVOR Counsel, Ehot, Slll1th Bamsters & SohcItors FOR THE Mehssa Nixon EMPLOYER Counsel, Legal ServIces Branch Management Board Secretanat HEARING October 26, 1999 The gnevor Ron EllIot, IS an OccupatIOnal Health and Safety Officer 2 wIth the Mimstry of Labour He gneves that he was Improperly paid callback pay for work performed on July 31 1997 He asked to be properly compensated and for a declaratIOn that the Employer vIOlated the terms and provIsIOns of the collectIve agreement. The partIes agreed on vIrtually all of the relevant facts Those facts were . The Mimstry of Labour provIdes on-call servIces for urgent sItuatIOns ansIng In the constructIOn, Industnal and mInIng Health and Safety programs Mimstry Inspectors volunteer to be placed on a rotatIOnal on-call lIst. When an Inspector IS on-call, he or she IS expected to carry a pager and respond to all calls wIthIn a reasonable tIme After workIng hours, the calls from the publIc and ImtIally receIved from the SpIlls ActIOn Centre (SAC) of the Mimstry of EnvIronment and Energy (MOEE) SAC then pages the appropnate Inspector when necessary . The gnevor works In the Western RegIOn for the Mimstry of Labour ThIS regIOn IS dIvIded Into fives zones There IS one Inspector on call for each zone ThIS one Inspector IS to be responsIble for handlIng matters that anse In the constructIOn, Industnal and mInIng Health and Safety programs . Pursuant to the collectIve agreement, when an Inspector IS paged by the SAC and responds to the matter the Inspector IS paid for four hours at a rate of one and one- halftImes hIS or her salary ArtIcle ADM 9 1 states An employee who leaves hIS or her place of work and IS subsequently called back to work pnor to the startIng tIme of hIS or her next scheduled ShIft shall be paid a mImmum of four (4) hours' pay at one and one-half (1 1/2) tImes hIS or her basIc hourly rate . On or around July 31 1997 the gnevor was scheduled to take pages from the SAC should they anse After hIS workday had fimshed on July 31 1997 the gnevor was paged. The gnevor responded to thIS page by telephone At approxImately 1737 hours, the gnevor was paged agaIn. The gnevor responded to the second page by telephone . The partIes agree that both pages were receIved and responded to wIthIn four hours of each other The Employer paid the gnevor for four hours at a rate on one and one-half tImes hIS basIc hourly rate AccordIng to Mr EllIot, after he fimshed work on July 31 1997 he took hIS son to a baseball practIce and game He was on call that week oblIgIng hIm to carry a pager The pager sIgnaled hIm at approxImately 4 45 p.m He asked another parent to watch hIS son and he returned home to call SAC There was a call from a company In London. Mr 2 EllIot telephoned the company and resolved the ImpendIng problem dunng that phone conversatIOn He returned to hIS son's baseball game but was agaIn called at approxImately 5 40 pm ThIS tIme he took hIS son out of the baseball game returned home and agaIn called SAC The problem was wIth the same company but the gnevor was agaIn able to resolve the matter over the telephone Mr EllIot testIfied that he returned home to make the telephone call because the office cellular phone avaIlable for on-call Inspectors was not workIng properly There was some dIspute In the eVIdence about whether the gnevor should have or dId bnng the telephone's status to the attentIOn of hIS supervIsor Mr NagalIngam However In my VIew It IS not relevant to the determInatIOn of thIS matter The gnevor submItted an attendance report claimIng that he should be paid the mImmum call back of SIX hours compensatIOn tWIce for July 31 1997 His ImmedIate supervIsor demed hIS request and thIS gnevance was filed shortly after that refusal There was some eVIdence about the appropnate amount of stand-by pay the Employer's response to that request and the dIscussIOn that took place regardIng thIS Issue However I am of the VIew that eVIdence IS not relevant to the determInatIOn of the matter at hand. It was apparent from the gnevor's eVIdence and from the eVIdence of Mr NagalIngam that the polIcy and practIce regardIng stand-by and call-back have changed SInce the events gIVIng nse to the filIng of thIS gnevance For Instance, all Inspectors now have theIr own cellular telephones and computers NotwIthstandIng changes, the partIes have not resolved thIS Issue Mr NagalIngam gave eVIdence that at the tIme of the filIng of the gnevance, supervIsors would not be aware that Inspectors had been called back to work unless there was a problem He was asked whether there were occaSIOns when an employee mIght be expected to stay for four hours after beIng called In Although he had not been Involved In any such IncIdents, he said that In some emergency sItuatIOns, such as the HagersvIlle tIre fire case employees mIght be reqUIred to attend at a meetIng to coordInate 3 departmental response It was conceded that such Instances were very rare UNION SUBMISSIONS Ms EllIot, for the Umon, submItted that wIth InterpretatIOn matters such as the one before thIS Board, there IS no onus of proof on eIther party The dIspute concerns the appropnate InterpretatIOn of artIcle 9 1 of the collectIve agreement. The Umon' s posItIOn IS that the language IS clear and unambIguous It was common ground between the partIes that the gnevor had only to return a telephone call to tngger the premIUm of callback. ThIS matter was determIned In Re The Crown In RIght ofOntano & OPSEU (Mitchell) (November 24 1994) unreported (Charney) The Umon asserted that artIcle 9 1 entItles employees to the mImmum callback allowance for each tIme they are called back to work. There are two tnggenng events that cause the payment. FIrst, the employee has left work and, second, they are called back to work pnor to theIr next scheduled shIft. The gnevor met the cntena. Therefore he IS entItled to be paid the mImmum callback allowance for each tIme he was called back to work. It IS Important to note that the callback provIsIOn IS expressed as a payment and not In terms of actual hours worked. The mentIOn of the mImmum of four hours has no relatIOn to the tIme frame or the amount of work that IS performed by the employee It IS Irrelevant whether they work for two mInutes or two hours, the Umon argued. It must therefore be clear that the startIng premIse for callback IS that It does not compensate employees In the normal manner as salary Rather It IS for the dIsruptIOn to theIr non- workIng lIves It IS compensatIOn for the Inconvemence of havIng theIr personal tIme Interrupted caUSIng a return to work In the employer's busIness That purposIve analysIs must lead thIS Board to find for the gnevor There was no doubt that the gnevor was Inconvemenced. He had to leave hIS son's baseball game for the first call After the second page he actually pulled hIS son from the game and went to hIS home to attend to busIness There were two separate and dIStInct InterruptIOns and each should tngger 4 artIcle 9 1 Ms EllIot suggested that only when an employee works for longer than four hours does tIme become relevant. It was agreed In the eVIdence that after four hours employees are paid at the premIUm rate of tIme and one half for each hour worked on all days that are not recogmzed holIdays The umon submItted that IrrespectIve of whether the gnevor had to return to hIS home to make the calls or made them on a cell phone from hIS car he was Inconvemenced. The Employer cannot CIrcumvent ItS oblIgatIOn to pay callback because of the advent of more convement telephone commumcatIOns The Umon referred to Canadian Labour Arbitration, Brown and Beatty thIrd edItIOn, Re The Crown in Right of Ontario (Ministry of Labour) and Ontario Public Service Employees Union (Mitchell) (November 24 1994) unreported (Charney) Re Shell Canada Ltd. And Oil, Chemical and Atomic Workers, Local 9-848 (1974) 6 L AC (2d) 422 (O'Shea) and Re Board of School Trustees of School District No. 39 (Vancouver) and International Union of Operating Engineers, Local 963 (1995) 47 L.AC (4th) 248 (HicklIng) In antIcIpatIOn of the Employer's argument, Ms EllIot contended that It IS Irrelevant whether the Employer could order the gnevor to work for contInue to work for four hours It was the uncontradIcted eVIdence of the gnevor that It has never happened that he or any of hIS coworkers has been so ordered. Indeed, In the normal course of events, the Employer does not know that employees have been called back untIl days later when they file theIr expense forms In any event, such a consIderatIOn IS not determInatIve accordIng to Board of School Trustees case (supra) FInally the Umon asserted that to find for the gnevor does not offend artIcle 15 1 It states There shall be no duplIcatIOn or pyramIdIng of any premIUm payments or 5 compensatIng leave provIded by the Central Agreement or any BargaInIng Umt Agreement as lIsted In ArtIcle 1 (recogmtIOn) ArtIcle 9 lIS for the payment of callback. The gnevor was called back tWIce He should receIve the allowance tWIce To do so IS not to duplIcate or pyramId. EMPLOYER SUBMISSIONS Ms Nixon, for the Employer argued that there was nothIng In artIcle 9 1 that dIsentItles the Employer from ItS Inherent management's nght to order employees to stay at work for a four-hour penod when they are called back to work. Indeed, accordIng to the eVIdence It has happened on occaSIOn. Once It IS accepted that the Employer can InSISt that employees stay at work, there cannot be a findIng that the gnevor be compensated tWIce for two callbacks wIthIn the same four-hour penod. AddItIOnally It IS not unusual that employees remaIn at work longer than four hours due to the nature of the call AccordIngly the four-hour penod becomes sIgmficant. It was the Employer's posItIOn that If the partIes Intended employees to be paid for each occaSIOn they were called back, they would have so IndIcted In clear and uneqUIvocal language There IS no such language In the collectIve agreement before thIS Board. Indeed, If the Umon's posItIOn was taken to an extreme an employee could receIve In excess of twenty-four hours pay for only mInutes of work dunng dIfferent callbacks Ms Nixon asserted that there IS a recogmzed spectrum of Inconvemence With technologIcal advances In commumcatIOn devIces such as cellular phones, the personal Inconvemence to employees IS sIgmficantly reduced The concept of a spectrum of Inconvemence was dIscussed in Re The Crown in Right of Ontario & OPSEU (Stecko) (June 2, 1992) unreported (DevlIn) The final aspect of the Employer's submIssIOn was that there IS a collectIve agreement presumptIOn agaInst the pyramIdIng of premIUms and to find for the gnevor would 6 vIOlate that presumptIOn. The gnevor wants to be paid callback allowance tWIce for the same penod of tIme To allow that would pyramId or duplIcate premIUms In Re Crown in Right of Ontario (Ministry of Environment) and OPSEU (Morin) (May 4 1978) unreported (Adams) In that decIsIOn the Board said, at page 8 ThIS Board understands the phrase "pyramIdIng or duplIcatIOn of premIUm payments" to mean the payment of sImIlar premIUm rates more than once for the same hours worked and not the tnggenng of two separate provIsIOns where the premIUm payments are to be made In relatIOn to dIfferent hours of work" (emphasIs not mIne) Ms Nixon suggested that to find for the gnevor would offend thIS theory The gnevance should be dIsmIssed. In reply the Umon asserted that the Issue of whether the employer can oblIge employees to remaIn at work IS not a relevant consIderatIOn for thIS Board. It mIght be successfully argued that If an employee IS at work they could not be called back to work. However that IS not the case before thIS Board In the Instant matter the gnevor was called back to work tWIce WIthIn a four-hour penod and should be paid callback premIUm for each Instance DECISION There was no dIspute between the partIes that the gnevor was called back to work tWIce on July 31 1997 There was no suggestIOn from the Employer that the gnevor dId not meet the cntena for callback pay AccordIng to hIS attendance report hIS first callback began at 4 45 P m and contInued untIl 5 06 P m The second callback started at 5 37 P m and was completed at 6 02pm The questIOn for thIS Board to address IS whether the gnevor ought to receIve callback pay once or tWIce for the work he performed on July 31 1997 In Re Shell Canada (supra) the gnevor was called Into work because a pIece of eqUIpment had broken down and reqUIred attentIOn. Shortly after hIS arnval, he was told 7 by hIS supervIsor to go home because the work was too complex. He changed and punched out. He was m the process of dnvmg hIS car from the employee parkmg lot when the ShIft supervIsor stopped hIm and advIsed hIm that there was work to be done The gnevor claimed that he had been called mto work tWIce There was a "call-out" payment wIth a mImmum payment of four hours pay at regular rates There was a provIsIOn that stated employees shall not be "paid tWIce for the same overtIme" The Board found that the gnevor was called-out tWIce notwIthstandmg that he had no further travel expenses The Board said at page 430 Just as an employee's payment of wages commences at the tIme he punches m at the start of hIS ShIft and ends when he punches out, sImIlarly an employee's call- out commences when he punches m and hIS call-out work ends when he punches out ThIS IS the purpose of tIme-clocks - to record the begmmng and end of work for whIch an employee IS paid. Once an employee wIth the authonty of hIS supervIsor bnngs hIS work to an end and punches out, he IS entItled to treat any subsequent recall to work as a separate call-out for the purposes of art. 11 08(b )(i) It IS recogmzed that there wIll be cases, and thIS IS one, where the employee wIll be the beneficIary of an economIC advantage, however thIS often occurs when there IS an arbItrary lme based on a tIme factor It may be that Mr WhItlock who was m substantIally the same posItIOn as the gnevor but who had not punched out and who therefore remamed under the control and dIrectIOn of the company may see the advantages ofbecommg a qUIck-change artISt. However that may be, If the gnevor had worked for three hours on the ImtIal call- out and had followed the same course of actIOn by punchmg out and gomg to hIS car and was then recalled for a further two hours work, It IS unlIkely that hIS claim for a second call-out would have receIved such OpposItIOn from the company The tIme penod mvolved may cause a gut reactIOn agamst the gnevor's claim ThIS IS because of the amount he wIll receIve for so lIttle work. ThIS of course cannot be a determmmg factor Once a call-out ends, as It dId when the gnevor punched out, a new call-out commences Ifhe IS recalled to work. In the Re Vancouver Board of School Trustees case (supra) the gnevor was on call and dunng hIS assIgned on call penod he was "called-out" tWIce He traveled to the school and reset an mtruder alarm that had been tnpped, a task that took approxImately fifteen mmutes He was called a second tIme approxImately an hour later for the same problem The collectIve agreement provIded mImmum call-out pay of "double tIme WIth a mImmum of three hours" There dId not appear to be a provIsIOn m the collectIve 8 agreement prohIbItIng the pyramIdIng of benefits NotwIthstandIng, ArbItrator HicklIng addressed the Issue squarely He stated at page 264 In any event, I am satIsfied that the claims made by Mr Wong and hIS fellow workers do not constItute the pyramIdIng of benefits Payments under the emergency call-out provIsIOn are not calculated on the basIs of hours actually worked or hours plus travel The mImmum IS expressed to Include up to one hour In travel tIme Only If the call-out necessItates longer than three hours' work does the actual tIme spent become relevant the premIUm IS a mImmum In none of the Instances drawn to my attentIOn has the employee been In a posItIOn to claim In excess of three hours In respect of anyone call-out. A tYPIcal call-out takes one or two hours The purpose of the clause IS not to compensate for hours actually worked but for the Inconvemence of beIng called out to work dunng one's off-duty hours The premIUm does not depend upon the extent of the Inconvemence It does not matter for example whether the IndIVIdual lIves 5 or 45 mInutes' travel tIme from the school Nor does It matter whether the call or calls come dunng the day or In the mIddle of the mght. The employer does not expect the IndIVIdual to lInger on the worksIte so as to use up the entIre three hours He IS entItled to return home after dealIng wIth the emergency Payment of a second premIUm when another call comes wIthIn three hours of the first would not, III my VIew constItute pyramIdIng. It IS certaInly not pyramIdIng of a tradItIOnal kInd. Payment would be made for the call-outs, not for the hours actually worked. Payment of a second premIUm In respect of another emergency call-out IS not WIthIn the mIschIef at whIch the antI-pyramIdIng presumptIOn IS aimed. I agree wIth both of these cases In the Instant matter the gnevorwas called back to work In accordance wIth artIcle 9 1 tWIce He met the cntena In each Instance He had left hIS workplace and was enJoYIng hIS off duty tIme He was called back pnor to hIS startIng tIme of hIS next scheduled shIft. He tnggered the call back mImmum payment tWIce The Employer would have me find that the gnevor IS attemptIng to pyramId or duplIcate benefits I thInk not. PyramIdIng benefits IS when there IS an attempt to apply more than one premIUm to the same penod In Re Morin (supra) Vice Chair Adams said that pyramIdIng means "the payment of sImIlar premIUm rates more than once for the same hours worked and not the tnggenng of two separate provIsIOns where the premIUm payments are to be made In relatIOn to dIfferent hours of work" That IS not what has happened here There IS one benefit that IS at Issue before me that IS, callback pay 9 NeIther does thIS decIsIOn constItute a duplIcatIOn of benefits There IS a mImmum guarantee of four hours pay at the rate of tIme and a half for callback. It IS clear that an employee who IS called back to work wIll receIve SIX hours pay IrrespectIve of whether they work for ten mInutes of for three hours and fifty mInutes There IS no consIderatIOn of hours or tIme worked In artIcle 9 1 WhIle It IS true that the gnevor IS to be paid tWIce there IS no duplIcatIOn because there was two Instances of callback. SImply put, he was called back tWIce and he should receIve callback pay tWIce The Employer suggested that because It has the abIlIty to reqUIre the gnevor to remaIn at work for a penod of four hours when called In, the whole four hour penod should be consIdered tIme worked for the employer thereby dIsentItlIng the gnevor to the second callback compensatIOn. The Umon would not concede that the Employer has thIS nght and It IS not an Issue that I need to decIde In thIS matter The eVIdence was clear that the gnevor IS called back to work on a regular basIs and hIS ImmedIate supervIsor has no knowledge of the work havIng been done untIl the gnevor fills In the attendance record. Even If It IS correct that the Employer can order the gnevor to remaIn at work for a partIcular penod of tIme when called back, that abIlIty does not alter the collectIve agreement that provIdes employees a mImmum callback payment IrrespectIve of actual tIme worked. It IS only at the pOInt that an employee has worked beyond four hours that tIme becomes an Important factor AccordIngly for those reasons, the gnevance succeeds I wIll remaIn seIzed In the event there are any ImplementatIOn problems anSIng from thIS decIsIOn. Dated In Toronto thIS 10th day of November 1999 FelIcIty D Bnggs 10