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Home My WebLink About1983-0197.Grant.83-09-15197/83 i' : IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: For the Grievor: I. Freedman Grievance Officer Ontario Public Service Employees Union For the Employer: J. F. Benedict Manager, Staff Relations Personnel Branch Ministry of Correctional Services Hearing: OPSEU (William Grant) Grievor - and - The Crown in Right of ~Ontario (Ministry of Correctional Services) Employer j, R. Kennedy Vice Chairman B. Switzman Member H. Roberts I August 15, 1983 I - L -\ DECISION The Grievor has been employed as a Correctional Officer at Millbrook Correctional Centre for a period. of approximately four and one half years. On January 16th, 1983, an incident occurred as a result of which it is alleged by the Grievor he is entitled to call-back pay under the provisions of the Collective Agreement. The incident in question was described by the Grievor in his own words in an occurrence report which he filed in accordance with the usual procedures of the Institution. That report read as follows: January 16, 1983 Time: 19 :50 To: Mr. G.B. Preston Superintendent Millbrook Correctional.Centre Re: Stolen property from Visiting Room Sir: At approximately 14:45, I was driving up to the Institution when a red Ford with two females in it proceeded to drive down the hill, going down the up-way. When I parked the'car and was going to the entrance of the Institution; I saw S.,S. Heard and other officers pointing down to~the bottom of~the hill. S.S. Heard asked me if I had seen a red car and I replied, "yes, it went' down the wrong way." We then noticed the car stopped at the bottom of the hill and someone got out of, it and threw something into the tree area. S.S. Heard then asked c/o Hume and myself to go and see if we'could find what it was. When we got to the area, I saw a brown woman's wallet lying open and face down. I picked it up and it appeared to .'~ be empty of money. I then found, not too far from the wallet, a yellow receipt for $lOO:OO cash from chargex. We searched the area for anything else and then brought the wallet back and gave it to S,S. Heard who gave it to a woman who then went and asked another woman what was missing. The other woman informed her that she had $100.00 in cash and a chargex card that was taken. Respectfully submitted, "Hill Grant c/o 2" : : -3- It was the Griever's oral evidence that he was scheduled to work on the day in question commencing'at 3:00 p.m. and that he parked his car and was proceeding to walk towards the Institution in the company of another correctional officer named Hume. Both were scheduled to be on the 3:00 to.ll:OO shift. When they were approximately 100 feet away from Shift Supervisor Heard who was standing~at the door to the Institution, Heard instructed them to proceed to see what had been thrown from the car. Heard~was the shift supervisor on the shift that was ending at 3:00 p.m. Hume and the Griever then proceeded to follow Heard's instructions. The Grievor stated that it was his normal arrival time at work and that he had not come to work,in response to any call or contact from the - Employer. With respect to the time worked prior to the commencement of the shift, the Grievor was paid for one-half an hour of overtime at the rate of time and one half. His claim on this grievance for that period is four hours.pay at time and one half pursuant to the call-back provisions of the Collective Agreement. The relevant provisions of the Collective Agreement provide as follows: ARTICLE 13 - OVERTIME 13.2 In this Article: "overtime" means an authorized period of work-calculated to the nearest half-hour and performed on a scheduled working day in addition to the regular working period, or performed on a scheduled day(s) .off. ARTICLE 14 - CALL BACK 14.1 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-ha~lf (l-1/2) times his basic hourly rate. >, I - - 4- It was the argument of the Union that the Grievor, at the time he was instructed to act by Heard, was not already at work but was simply at the premises. He had not yet begun to work and Heard's instruction to him at that point in time constituted, according to the argument of the Union, the call-back to/work within the language of Article 14.1. It occurred prior to the starting time of his next scheduled shift and therefore created the entitlement to the four hours pay at times and one half specified in the Article. The arbitral authorities in this area have recently been reviewed in Re County of Kent (1982) 8 L.A.C.(3d) 188 (Swinton). In that case the arbitrator reviewed the two general - lines of authority and concluded on the language of the collective agreement in that case that work contiguous to the regular shift created an entitlement to overtime but not to call-in. Whatever relative merit there may be in.the two lines of,authority reviewed by artibrator Swinton, what is common to both of them is that to come within the intent and purpose of a call-in article there must be in fact a degree of inconvenience and a disruption of the employee. On the facts that are before us, the Griever received no call at his home and was not in any way disturbed or interfered with in relation to the time that he would normally have considered to be his own. It is our view that in interpreting an article such as Article 14.1 and what is meant within su,ch an article by the expression "call-back" reference must be had to the intent and purpose of such a section. We do not consider that the plain language of the ‘_ -5- words envisage the simple giving of a work assignment as was done by Heard.to the Griever at the time of the incident in question. Rather, we consider that to constitute a call-back it must go beyond such a simple instruction to work and must include an instruction to the Griever that he is to be - physically present at work prior to the normal commencement time of his shift. It is accordingly our conclusion that the Employer has acted correctly in treating the situation of January 16th, 1983 as an overtime assignment under Article 13 rather than as a call-back 'under Article 14. Further support for ~that conclusion can be found in Re Atlas Steels Co. Ltd. (1964) 15 L.A.C. 123 (Hanrahan); Re Etobicoke Hydro Electric Commission (1967) 18 L.A.C. 219 (Arrell); and Re Hydro Electric Commission of the Town of Mississauga (1975) 8 L.A.C(2d) 158 (Ferguson).. In the result it is our conclusion that this grievance must be dismissed. DATED this 15th day of September, 1983. R.ennedy, Chai- /- 8: 2100 8: 2130 8: 3400 f-5 /w&-+w- addenda B. Switznan, Member ___--- -- . -6- IN THE MATTER OF AN ARBITRATION BETWEEN: MINISTRY OF CORRECTIONAL SERVICES - and - , ONTARIO PUBLIC SERVICE EMPLOYEES UNION AND IN THE MATTER OF THE GRIEVANCE OF WM. GRANT (#197/83), A D D E N D U M - - - _ - _ - _ I have joined with the Chairman in the disposition of this grievance. As indicated in the Chairman's award, the two Lines of authority on call-outs have recently been reviewed in the re County of Kent (1982) 8 L.A.C..(3rd) 188 (Swinton). I do not agree with the "two trip" theory espoused,'in that award. I do however agree with the Chairtian's view that in order to succeed the griever is required to establish a degree of inconvenience and disruption of his normtil routine. In this instance there wasn't such evidence and thus, in these circumstances, I concur that the griever was properly paid by his Employer. Respectfully submitted Brian Switzma)n /