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