Loading...
HomeMy WebLinkAbout1982-0442.Rich.83-07-08Between: :N THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEti James Ric.h) - And - Grievor The Crown in Right of Ontario (Ministry of Correctional Services) Employer Before: J.W. Samuels E. McVey E.R. O'Iielly Vice Chairman Member Member For the Grievor: J. Hayes, Counsel Cavalluzzo, Hayes & Lennon For the Employer: J.F. Benedict Manager, Staff Relations Ministry of Correctional Services Hearing: June 21, 1963 . -2- ( !.- to Cal The issue here is whether or not the grievor is entitled 1 Back pay for certain work on June 24, 1982. The grievor is a Correctional Officer, serving the Ministry at the Sarnia Jail. This institution has no facilities for holding female inmates. Hence, they are transferred to the Elgin-Middlesex Detention Centre. On June 24, 1982, it was necessary to transfer a female inmate from the latter institution to court in Sarnia. At around 7 PM on the 23rd, as the grievor was going off his regular 7 AU to 7 PM day-shift, he spoke with Sgt. R. Johnston, the night sergeant, and told the other officer that this transfer was to be done on the following morning. The vehicle would have to leave Sarnia for London at 6 AM. The grievor said that he would do the escort~if there was no one else to do it, and even indicated that he was willing to change his shift on the 24th to 6 AM to 6 PM. Sergeant Johnston replied that he "had to go by the overtime", meaning that he had to check first to sea if there was someone ahead of the grievor on the established overtime rotation list. At around 9 PM, the sergeant called the grlevor to his home to say that the grievor would do the escort next morning. So the grievor came in at 6 AM and did the escort. He worked right through to 7 PM that day. He received his regular shift pay, plus one hour's overtime at double time (though the agreement provides only for time and one-half). The griever claims he should be entitled to Cal 1 Back pay for the extra hour in the morning. i . , -3- Article 14.1 provides for Call Back as follows: An employee who leaves his place of work and is subsequently called back to work prior to the starting time of his next scheduled shift shall be paid a minimum of four (4) hours' pay at one and one-half (l+) times his basic hourly rata. The Ministry's first reply to the grievance was: Ad.vice was sought on this matter and the direction given was that if an employee is called back to work after completing his regular shift, prior to the start of his next shift, call-in payment is only applied if the employee comes into work and goes home again prior to the commencement of his next scheduled shift. The Union argued at length, and with reference to signi- ficant arbitral jurisprudence, that Call Back here should be paid even if the extra hour worked was contiguous to the regular shift. In our view, the Union is clearly correct on the plain meaning of Article 14.1. Contiguity between the "Call Back hour" and the regular shift would not defeat the entitlement to Call Back pay. We would set out the Union's argument at length, if it weren't c. for the fact that Mr. Benedict acknowledged this point in his argument on behalf of the Ministry. HoweVer, the Ministry now argues~that the grievor agreed to do the extra hour before he left work on the 23rd, hence the service was not Call Back, but rather overtime. In the alternative, the Ministry suggests that, pursuant to Article 10.3, the grievor agreed to a shift change for the i -4- 24th, from 7 AM to 7 PM to 6 AU to 6 PM. Article 10.3 provides: A shift may be changed without any premium or penalty if agreed upon between the employee and the ministry. And, further in the alternative, Mr. Benedict argued that the drive to London was "Travel Time" not "work", hence the grievor was not called back to work from 6 AM to 7 AM on the 24th. Article 23 provides: 23.1 23.3 23.6 Employees shall be credited with all time spent in travelling outside of working hours when authorized by the ministry. When travel is by automobile and the employee travels directly from his home or place of employment, time will be credited from the assigned hour of departure until. he reaches his desti- nation and from the assigned hour of departure from the destination until he reaches his home or place of employ- ment. All travelling time shall be paid at the employee's basic hourly rate or, where mutually agreed, by compensating leave. We were referred to two cases which deal with this point. In Marcotte, 54/78, this Board decided that a Correctional Officer who drives the vehicle on an escort is "working" and is entitled to overtime pay. However, in w, 99/10, the Board decided that the'correctional Officer in the same vehicle, who is merely a passenger, is not "working" unless there's an inmate to care for. The 'griever in Cowie was entitled only to Travel Pay for the trip to the point where the inmate was collected, and overtime for the -5- (’ return trip with the inmate. We may have taken a different view of the law,in this case. However, in our case, we do not know whether the grievor was driving. Since this argument was raised for the first time by the Ministry at our hearing, it would seem that the Ministry had the onus to show that our facts fell within the Cowie rule. For this reason, we reject this argument by the Ministry. The issue then is one of fact. Did the griever consent, i; or receive his assignment, to work at 6 AM on the 24th. before he "." left for home at the end of his shift on the 23rd? Put another way, when Sgt. Johnston called the grievor at his home at around 9 PM on the 23rd, did he then call the grievor back to work at 6 AM on the 24th. or was he merely confirming a pre-existing arrangement which was subject to .the condition that the griever's work wouldn't conflict with the overtime list? The early hour worked would be Call Back even if the grievor had indicated a willingness to work at 6 AM, if the arrangement had not been established before the end of the griever's shift. Pursuant to Article 14.1, if the employee leaves his place of work and is subsequently called back to work prior to the starting time of his next scheduled shift, he is entitled to Call Back pay. Our only evidence came from the grievor and it is somewhat inconclusive. However, on balance we find that, when the grievor went home after his shift on the 23rd, he did not really know whether he'd be working at 6 AM or not on the 24th. Hence, Sgt. Johnston's phone- call at 9 PM was indeed a Call Back and the griever was entitled I -6- to four hours pay at one and one-half times his basic hourly rate. It is worth mentioning that, at 6 AM on the 24th, when Sgt. Johnston saw the grievor, he told the griever to "put in for four hours" in Call Back. Before concluding, we must remark that the evidence in this case was very sparse, primarily because the parties had not made known their basic positions until argument. The Union addressed the issue of contiguity, which had been raised in the Ministry's reply to the grievance. But this issue was not even raised at our hearing b,y the Ministry (indeed, the Union's argument on the law was accepted), and the Ministry proceeded to raise three new arguments upon which it could be said that the griever's hour was not Call Back-. While there is no reason in this case to deny the Ministry's right to raise these other legal arguments, the procedure did result in the Board having to decide the matter on evidence which was not really related to the legal points raised. We reserve our jurisdiction to decide upon the .matter of c compensation if the parties cannot settle this themselves. Done at London, Ontario, this 8!2000 8:2100 8:3400 ., ,, .- ~. . ’ ., . -7- c EXHIBITS 1. Grievance Form 2. Reply, August 3, 1982 3. Reply. September 14, 1982 4. Shift Roster