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HomeMy WebLinkAbout2016-1407 et al.Brethour et al.18-05-23 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2016-1407; 2016-1408; 2016-1409 UNION# 2016-0356-0001; 2016-0356-0002; 2016-0356-0003 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Brethour et al) Union - and - The Crown in Right of Ontario (Ministry of Natural Resources and Forestry) Employer BEFORE Nimal Dissanayake Arbitrator FOR THE UNION Alex Zamfir Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Thomas Ayers Treasury Board Secretariat Legal Services Branch Counsel HEARING April 11 and May 15, 2018 - 2 - Decision [1] Mr. Glen Brethour, Mr. Jeremy Dynes and Mr. Luke Hillyer are employed at the Ministry District Office in Bancroft, Ontario. They have filed identically worded grievances dated August 15, 2016. These came before me pursuant to article 22.16 of the collective agreement. The parties agreed that evidence of representative grievors would apply to all three grievances. [2] The employer has established a “Bear Wise Protocol”, (“Protocol”) setting out the procedure for Ministry response to incidents of human-bear conflict. The protocol requires the grievors to be available to respond to wild bear situations after hours and on weekends. The employer compensates the grievors for hours they make themselves available at the “on call” rate of $ 1.40 an hour under article UN 11. The grievors claim that they are entitled to the higher “stand by” rate under article UN 10 of the collective agreement. [3] The relevant collective agreement provisions are as follows: UN 10.1 “Stand By Time” means a period of time that is not a regular working period during 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. . . . UN 11.1 “On-Call-Duty” means a period of time that is not a regular working period, overtime period, stand-by period or call back period during which an employee is required to respond within a reasonable time to a request for: (a) recall to the work place, or (b) the performance of other work as required. . . . [4] The parties agreed that the disposition of these grievances would turn on the facts on the state of readiness required of the grievors. The readiness expected of the employees is set out in “The bear-wise protocol” (“the protocol”) a document established by the employer. It provides that, “On call employees have 30 minutes to respond to a call”, and that, “Following that, they have 2 hours to get to the office/be ready to respond. (e.g. have truck and equipment ready, etc.)” The dispute in the instant grievance is whether these expected response times are - 3 - consistent with the “within a reasonable time” requirement in the “on-call” provision as the employer asserts, or whether it imposes on employees an obligation to be “immediately available” to receive a call and to be “immediately available to return to the workplace” as contemplated by the “Stand-by” provision. [5] The employer and the Ontario Provincial Police are signatories to a “Memorandum of Understanding for Bear Management”, which sets out the responsibilities for both parties. For each “bear season” (June to September), the employer establishes a protocol setting out its process for responding to problem bear calls from the OPP, seeking Ministry assistance. The grievances relate to the 2016 and 2017 bear seasons. [6] Under the protocol the grievors have 30 minutes to respond to a call and following that they have 2 hours to get to the office and be ready to respond. The thrust of the union’s case is that the grievors are required to perform a number of tasks in the allotted two hours to be ready to respond. To be able to do that, they have to be “immediately available to return to the workplace” upon receiving a call. [7] The Board notes that stand-by pay, or for that matter on-call pay, is meant to compensate employees for the time they make themselves available during off hours to receive a call to respond to bear situation. Entitlement to stand-by pay is not, therefore, dependent on what they may or may not do following the receipt of a call and acting on it. For that time they get compensation under other provisions of the collective agreement. [8] I note also that, in determining entitlement to stand-by pay, how the employer elects to label the time in question - as stand by or on-call - is not relevant. Nor is it relevant that a grievor in fact makes himself “immediately available’ to return to the workplace, when not required to do so by the employer. - 4 - [9] The employer’s expectations and directions are that contained in the protocol. There is no evidence that anything was communicated to the grievors, verbally or in writing, that would vary or amend those in any way. [10] Significant time was spent reviewing the MOU with the OPP, and the extent of the employer’s responsibility for public safety under it. However, that is irrelevant for determination of these grievances. If the afterhours bear wise protocol instituted by the employer is inadequate, and fails to comply with the employer’s obligations under the MOU, there may be consequences for the employer. However, it has no bearing on whether the protocol gives rise to stand-by or on-call pay under the collective agreement. As the Board has observed “The issue for the Board is the employer’s actual expectations, and not whether that expectation was adequate to provide an efficient service”. (See, Re OPSEU and Ministry of Environment and Energy, 120/95 (Dissanayake) at p. 33 and authorities cited therein). [11] Mr. Brethour, like Mr. Dynes, is employed as Resource Management Technician. He testified in chief that he understood that when he receives a call from the supervisor to respond to a bear situation he was expected to “stop everything, get what I need and head out to the office”. Union counsel asked why he felt that way when the protocol allows 30 minutes to respond to the call and a further 2 hours to be ready with the truck and other needed equipment. Mr. Brethour replied, “I know that I am called out to a situation where there will be public safety issues. So it makes sense. I won’t hang around although I know the police is already there”. He testified that he considered bear calls to be of “high importance” because of the potential risk to the public from wild bears. He testified that he had not been told by management what would happen if he did not comply with the timeliness in the protocol, but presumed that he would be disciplined. [12] Mr. Brethour had not actually been called to respond to a bear call. However, he described in detail the tasks he would be required to perform under the protocol when he receives a call, to be ready to proceed to the site. He estimated the time it would take for him to perform each task, including driving to the office from his - 5 - home. By his estimate, the preparatory tasks would take 85 to 110 minutes of the 120 minutes allowed. Therefore, he had to return to the workplace immediately on receiving a call. [13] In cross-examination, employer counsel put to Mr. Brethour that the protocol does not state anywhere that an employees must leave immediately upon receipt of a call, and that therefore, if he does so it is his choice. He agreed. He also agreed that the protocol does not state, and he has never been told, that failure to meet the timelines would result in discipline. He was also not aware of any employee being disciplined for that. [14] Mr. Brethour agreed that his time estimates were based on one employee performing each of the required preparatory tasks alone. When counsel suggested that since two employees are assigned to respond to bear calls, if both shared those tasks it would reduce the required time by 50%, Mr. Brethour replied that there would be “significant reduction”, but was not sure it would be 50%. He accepted that when one employee arrives in the office, he/she could begin doing the tasks until the other arrives. Then both can share the remaining tasks. He also agreed that it would save time if bear attractants are picked up on the way to the site, rather than picking it up and returning to the office as he contemplated. He further agreed that in any event the work relating to the bear trap trailer and purchase of attractants to lure a bear into the trailer would be required only in calls where instructions are received that a trailer would be required to trap a bear. In re-direct, Mr. Brethour estimated that the “significant savings” of time if two persons do the tasks could amount to 20 to 25%. [15] As a Resource Management Specialist, Mr. Hillyer was trained and qualified to use a tranquilizer gun. He had responded only to one bear call and was not told to bring a tranquilizer gun on that occasion. He estimated that the additional tasks related to the preparation of the tranquilizer gun would add approximately 15 minutes to the time estimates Mr. Brethour had testified about. - 6 - [16] Mr. Hillyer testified about the one bear call he responded to. He received the call at 3:48 p.m., and drove 8-10 minutes from home to the Bancroft office. Before starting the preparatory tasks he had to retrieve and review the protocol because he was new, and not familiar with it. Within a few minutes after he had started the tasks his partner arrived and both shared the remaining preparatory tasks. He spent approximately 45 minutes performing preparatory tasks in the office. He and his partner departed for the site at 4:50 p.m. [17] Under cross-examination, Mr. Hillyer agreed that he and his partner departed for the site after performing the necessary preparatory tasks one hour and two minutes from the time the call was received, and that it included the 10 minutes he spent reviewing the protocol. He agreed that he had to review the protocol only because he was new. [18] Ms. Suzanne Shalla, Resource Management Supervisor at the Bancroft District Office, testified that the time estimates for doing the various preparatory tasks provided by Mr. Brethour were reasonable if performed by one person. She testified that all of the tasks could be performed by one person. However, if two share the work it would save time significantly. She also reiterated that the bear trap is taken only if instructed by the supervisor during a call that one would be required and attractants are required only if a bear trap is taken. In those cases, time could be saved if bear attractants - something sweet - are purchased from the Tim Hortons located one minute from the office on the way to the site, rather than drive to a grocery store in town as Mr. Brethour contemplated. [19] The law is clear that in these types of cases the issue is the extent of readiness required from the grievors. There is some degree of inconvenience to employees during stand-by as well as on-call periods. The difference in the rate of pay for periods of stand–by and on-call reflects the greater inconvenience during stand- by compared to on-call periods. It is also clear that it is the employer’s prerogative to determine the level of response to be provided when a request for assistance from the OPP is received. The evidence is that the supervisor determines whether - 7 - assistance would be restricted to something less than dispatching Ministry staff to the site of the bear incident, e.g. by providing information or advice. The protocol sets out the level of response the employer has undertaken to provide if a decision to dispatch staff is made by the supervisor. i.e. 30 minutes to respond to a call and a further 2 hours to get to the office and be ready to respond. [20] All witnesses testified candidly and honestly. The estimates of time provided by Mr. Brethour were based on him performing all required preparatory tasks by himself. Of all grievors, he lived furthest from the office and had to drive 30 minutes as compared to 8-10 minutes for Mr. Hillyer. His time estimate included that 30 minutes. Moreover, I am satisfied that in all calls, there would be two employees to share the tasks to some extent. This would result in significant saving of time. Also, Mr. Brethour’s estimate included the tasks relating to the bear trap. The evidence is that the bear trap, and the purchase of bear attractants, would only be required in situations where the problem bear(s) are to be captured, and not tranquilized or killed. [21] Mr. Brethour testified that he would drop whatever he was doing, gather what he needed and leave for the office as soon as a call is received for response. His evidence is that he would do this, not because the employer had required him to do so, but because of his concern that problem bears can put the public at risk. He stated that in his opinion it makes sense therefore, to respond immediately. While his dedication and concern about public safety is commendable, that is not relevant in determining whether the time in question is “stand-by”. As noted, the level of readiness to be required from staff, and consequently the level of response to be provided, is for the employer to determine. [22] In Re OPSEU and Ministry of Environment and Energy, (supra) at p. 35 the Board wrote: As prior awards of this Board have noted, the social and political implications resulting from the lowering of the level of service offered is not a legitimate consideration for this Board. This is not different from the right of an employer to avoid costly over-time rates under the collective agreement by not requiring employees to perform over-time work. If the - 8 - elimination of over-time results in the standard of service going down it is the employer who must deal with the consequences. In Re Mongrain et al, 0939/86 (Slone), in dismissing the grievances, the Board at p. 9 wrote: Whether or not it would be desirable for an immediate response during the on-call period, the ministry has deemed it acceptable to take the risk that the ERP would only be reasonably available for recall to work. [23] On the totality of the evidence, I do not find that the employer has required a level of readiness that meets the definition of “Stand-By-Time” in article UN 10.1. The requirement is for a response “within a reasonable time” as defined in Article UN 11.1. [24] Accordingly the grievances are dismissed. Dated at Toronto, Ontario this 23rd day of May 2018. “Nimal Dissanayake” Nimal Dissanayake, Arbitrator