GSB#2009-1935

UNION#2009-0453-0019

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Forrester)

Union

• and -

The Crown in Right of Ontario (Ministry of Environment)

Employer

BEFORE

Felicity D. Briggs

Vice-Chair

FOR THE UNION

Mark Barclay Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Michelle Dobranowski Ministry of Government Services Labour Practice Group Counsel

HEARING

October 22, 2010.

Decision

1Terri-Lee Forrester is an Environmental Officer who filed a grievance on August 14, 2009 that alleged she had “been denied proper payment for all hours during which time (she) was immediately available to receive a call to return to work and immediately available to return to the workplace while on duty between July 20, 2009 and July 27, 2009 for the after hours Environmental Response Program as required by management.” Specifically, the grievor maintains that she ought to have been called back to work as the result of an incident that occurred on July 25, 2009. By way of remedy she wanted full compensation in accordance with the call-out provisions of the Collective Agreement.

2After efforts to mediate this matter failed, the parties informed the Board that the matter would proceed in accordance with Article 22.16. Therefore, this decision is without precedential value. Further, the parties agreed that the decision should be issued without reasons.

3The parties provided an Agreed Statement of Fact as follows:

• The grievor is an Environmental Officer.

• As part of their job duties, Environmental Officers are require to be on-call in accordance with Article UN11 of the Collective Agreement. Environmental Officers are generally required to be on-call after normal business hours on a rotational basis, depending on the size of the field office they work in, one week of every 5 – 10 weeks. One of the requirements of being on-call is that upon receiving a page the Environmental Officer will respond to the office with a reasonable timeframe. An Environmental Officer at the Ministry of the Environmental’s Sills Action Centre (“SAC”) is the individual responsible for initiating a call out after normal business hours.

• The SAC is a 24 hour/day, seven days/week call centre staff with Environmental Officers who are responsible for initiating and coordinating environmental responses to after hours incidents of reported pollution events. The Environmental officers are OPSEU members. SAC works closely with other agencies (e.g. municipalities) so that they can provide an effective and timely response. SAC Environmental Officers are trained in environmental law and science and mange environmental and drinking water events after business hours.

• SAC Environmental Officers have a set of procedure cards that are used as decision guidelines. These procedure cards have been available for all Integrated Divisional System users, including district office staff, to view since around early 2005.

• When they receive after hours calls SAC Officers are to respond to them in accordance with the applicable procedures. SAC Officers exercise discretion in determining whether a particular incident requests a Ministry filed response. If the SAC Officer determines a Ministry field response is required the SAC Officer contacts the on-call ERP Environmental Officer via pager. There is also an Environmental Response – Standard Operating Procedure which has been in place since May 2007 and which provides clear guidance to Ministry staff on how to respond to spills, emergencies and other related environmental incidents in a consistent and safe manner (Appendix 1)

• On July 25, 2009, the grievor was on-call.

• On July 25, 2009 the SAC receive a call from an anonymous caller that a septic system was overflowing onto the Upper Canada Campground (Appendix 2). This system is approved and regulated by MOE.

• As this incident was called in by a member of the general public (complaint) SAC referred to the internal procedure card 4-B for PIR’s (Pollution Incident Reports) (Appendix3).

• As part of the response, the SAC Officer who took the call contacted the Eastern Ontario Health Unit to advise them of the situation. The Eastern Ontario Health Unit informed the SAC that they would be sending an inspector to the site.

• The SAC Officer determined that a Ministry field response was not necessary and according did not contact the grievor to call her out to the incident. There is no record that he consulted with his manager or local supervisor.

• The grievance alleges that the grievor was denied proper payment for all hours during which time she was immediately available to receive a call to return to work and immediately available to return to the workplace while on duty between July 20, 2009 and July 27, 2009 for the after-hour Environmental Response Program as required by management (Appendix 4).

• It is the grievor’s position that she should have been called out to the incident and paid accordingly.

• It is the Employer’s position that the SAC Officer responded appropriately in the circumstances. The Employer’s position is that it was unnecessary for an ERP Officer to be sent to the incident because the situation did not meet any of the considerations to be given when deciding whether an ERP call-out should be initiated. The SAC Officer’s actions were in accordance with the relevant procedures and protocols.

4As is apparent from the above statement of fact, relevant documents including the Ministry’s Environmental Response – Standard Operating Procedure and the Incident Report filed by the Spills Action Centre were put into evidence. Submissions were given with reference to earlier decisions of the Board.

5After consideration of the facts and submissions in this matter, I am of the view that there has been no violation of the Collective Agreement.

6Accordingly, the grievance is dismissed.