GSB#2008-3329

UNION#2008-0669-0004

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Couture et al)

Union

• and -

The Crown in Right of Ontario (Ministry of Government Services)

Employer

BEFORE

Nimal Dissanayake

Vice-Chair

FOR THE UNION

Laura Johnson Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Omar Shahab Ministry of Government Services Labour Practice Group Counsel

HEARING

March 23, 2010.

Decision

1The Board is seized with grievances filed by Mr. Frank Couture, Mr. Colin Campbell and Mr. Bentley Uyeda, wherein they allege that the employer failed to pay them stand-by pay in accordance with article UN10 of the collective agreement while they were on an after hours rotation. The parties advised at the commencement of the hearing that they had agreed to add a grievance filed by Mr. Grant McMartin involving the identical issue. It was also stated that Mr. Atul Ratra, who had also grieved, did not wish to proceed with his grievance. Therefore, this decision is dispositive of the grievances filed by grievors Couture, Campbell, Uyeda and McMartin.

2At the commencement of the hearing employer counsel made a motion that the Board ought to dismiss the grievances on the basis that the particulars provided by the union do not disclose a prima facie case for a violation of article UN10. (Hereinafter “prima facie motion”). This decision determines that motion.

3Article UN 10 is as follows:

UN10.1 “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.

UN10.2 No employee shall be required to be on stand-by unless such stand-by was authorized in writing by the supervisor prior to the stand-by period, except in circumstances beyond the Employer’s control.

UN10.3 Where stand-by is not previously authorized in writing, payment as per UN10.4 shall only be made where the supervisor has expressly advised the employee that stand-by duty is required.

UN10.4 When an employee is required to stand-by, he or she shall receive payment of the stand-by hours at one half (½) his or her basic hourly rate with minimum credit of four (4) hours pay at his or her basic hourly rate.

4The written particulars of the union are as follows:

1. The Grievors, Frank Couture, Colin Campbell, Bentley Uyeda, Atul Ratra are employed as Level 6 Systems Officers and grievor McMartin as Level 5 System Officer in the Enterprise Email Services (“EES”) Operations branch of the Ministry of Government Services (“MGS”). The grievance relates to the employer’s EES “On-Call System.”

2. The Grievors are responsible for maintaining and supporting the email system for the Ontario Public Service. They maintain the servers for the email system, conduct updates to the system and deal with any issues that may affect the functioning of the email system. They also assist some members of the Ontario Public Service (“OPS”) when they experience difficulties with the functioning of their e-mail or their blackberries.

3. In total, there are 14 systems officers who work in EES operations. Seven of these officers work in the North Bay office, and the other seven work from an office in Toronto. All EES systems officers work steady day shifts.

4. In order to ensure that there are staff available to resolve problems with the OPS e-mail system during non-business hours, the employer has established an EES On-Call System. According to the On-Call System, the EES systems officers are obliged as part of their job duties to be part of the “On-Call” rotation for two consecutive one-week periods in each rotation.

5. When the employer first started its On-Call System, only a few of the EES systems officers were required to be part of the rotation. Currently, all of the EES systems officers, except for temporary EES systems officers, are required to take part in the rotation.

6. As all EES systems officers are now part of the rotation, each EES systems officer is required to be “On Call” for two weeks approximately every two or three months.

7. During the first week of “On-Call duty,” the systems officer is the “Primary On-Call” and is obliged to respond to any pages regarding problems with the e-mail system during off-hours.

8. During this second week of “On-Call duty,” the systems officer acts as the “Secondary On-Call” and is responsible for responding to pages regarding any problems with the e-mail system if the “Primary On-Call” is unavailable.

9. When an EES systems officer is on call, he or she receives, on average, approximately 2 to 3 pages per week. However, the number of pages an EES officer receives can vary greatly.

10. The employer has developed an “EES On-Call Response Protocol” (the “Response Protocol”) which details the process that EES systems officers are to follow when they are on-call.

11. If there is an issue with the OPS e-mail system that requires attention during non-business hours, the EES systems officer who is on “On-Call duty” will receive a page from the SORC. Once the EES systems officer has received a page, he or she must do the following:

a. e-mail the EES Operations Team to inform them that a page has been received;

b. respond to the page;

c. log onto the system to assess the problem and determine what kind of response is required;

d. Inform the SORC of the course of action to be taken;

e. take appropriate steps to address the issue; and

f. e-mail the EES Operations Team to inform them of the status of the incident.

12. The exact nature of the response that is required depends on the nature of the problem that resulted in the page.

13. The Response Protocol also details the amount of time in which the Primary On-Call EES systems officer is expected to respond to a page.

14. The Response Protocol provides that when the SORC receives an alert, they page the EES Primary On-Call. If they do not receive a response from the EES Primary On-Call within 15 minutes, they send a second page.

15. If the SORC does not receive a response from the EES Primary On-Call within 15 minutes of the second page, they will then page the EES Secondary On-Call.

16. If the EES Secondary On-Call does not respond to the page within 15 minutes, the SORC will page the EES Operations Manager.

17. Despite the Response Protocol, the Grievors have been informed by the employer that they are expected to respond to pages within 15 minutes. On August 15, 2008, David Chadbourne, the EES Operations Manager, sent an e-mail to the Grievors and the other EES systems officers. In that e-mail, he informed them that they were required to respond to pages within 15 minutes of receiving them when they are on “On-Call duty.”

18. On numerous occasions, the Grievors have requested more time in which to respond to pages while they were on “On-Call duty.” These requests have been denied.

19. For example, on March 16, 2008, Mr. Uyeda was on “On-Call duty” and was paged while he was shopping. He returned the page and was informed that a high profile user required assistance with their blackberry. Mr. Uyeda asked if he could complete his shopping and return home within approximately 40 minutes. Mr. Uyeda was advised that he ought to check out immediately and return home to begin responding to the page. Mr. Uyeda followed these instructions.

20. On January 23, 2009, Mr. Campbell was on “On-Call duty” and received a page while he was cooking dinner for his children. Mr. Campbell requested that he be permitted to finish cooking before being required to respond to the page. Mr. Campbell was informed that this was not possible.

21. On June 19, 2009, Mr. Uyeda was on “On-Call duty” and was paged while he was attending his step-son’s concert in a park. He responded to the page and asked whether he could wait to respond to the page until his step-son’s concert concluded and he was able to return home, which would take approximately 40 minutes. Mr. Uyeda was advised that he needed to return home immediately to begin working on the issue. Mr. Uyeda then requested that the Secondary On-Call be asked to handle the issue. This request was denied. Mr. Uyeda returned home immediately and began working on the issue within approximately 15 to 20 minutes.

22. The Union submits that, by requiring a response to a page within 15 minutes, the Employer is requiring an immediate response to the page and is requiring the Grievors to return to work immediately.

23. The Union further submits that, by virtue of fact that the Employer requires an immediate response when the EES Officers are paged, the Grievors ought to be considered as being on “Stand-by Time”, rather than “On-Call Duty.”

24. The Union therefore takes the position that the Employer has violated Article 10 of the Collective Agreement in paying the Grievors “On-Call Duty” rates rather than “Stand-by Time” rates.

25. By way of remedy, the Union requests that the Grievors be compensated according to the “Stand-by Time” rates specified in the Collective retroactive to the date of the grievance.

5Union counsel orally supplemented the written particulars to the effect that on occasion systems officers may not be able to have access to the internet at home or other off site location with their employer issued lap-top or blackberry, and that on those occasions they have returned to the workplace in order to perform the required task.

6The decision in Re Difederico, 2008-0868 (Dissanayake) illustrates that a prima facie motion would succeed if the facts asserted in support of a grievance, if accepted as true, are not capable of establishing the elements necessary to substantiate the violation alleged. There the grievance alleged a violation of article 3.2 which provided that “There shall be no discrimination or harassment practised by reason of an employee’s membership or activity in the union”. The grievance alleged that the employer had exercised its management right to investigate a WDHP complaint in a manner that harassed the grievor and that this was done as retaliation for the grievor’s filing of three grievances some years earlier. At para. 16, the Board wrote:

16Given the manner in which the grievance has been framed, in order to establish a prima facie case, the facts asserted by the union must establish that (1) the employer conducted itself in the exercise of its management rights in a manner discriminatory or harassing of the grievor, (2) that such conduct was motivated in whole or in part, because of the grievor’s filing of grievances some 17 years ago. I find that the union has not made out the first element of articles 3.2 above, so that the second element becomes moot.

The employer’s motion was upheld and the grievance was dismissed.

7In the present case, the employer submits that to be successful, the union must prove that during a period of time that is not a regular working period, the grievors were required to (a) Immediately available to receive a call to return to work and (b) Immediately available to return to the workplace. Pointing to the word “and” in the provision, counsel submits that to have any chance of success the union must establish both (a) and (b) It is the employer’s position that the union’s particulars do not assert that the grievors were required to be “immediately available to return to the workplace” during the time periods in question. Employer counsel drew my attention to the following excerpt from the Board’s decision in Re OPSEU (Union Grievance), 120/95 (Dissanayake) at p. 27:

The unavoidable interpretation, however, is that merely because an employee keeps himself immediately available to receive a call to return to work during a period of time which is not a regular working period, that does not constitute Stand-By time under the current definition. To have that result, the employee must also be keeping himself “immediately available to return to the workplace.”

8Counsel submits that to meet requirement (b) of article UN10.1, it is not sufficient that employees on occasion have returned to the workplace in order to perform work upon receipt of a call. The provision explicitly contemplates that the employee must be “required to keep himself or herself immediately available to return to the workplace”. There is no assertion by the union that the employer has required the grievors to keep themselves ready to return to the workplace during the periods of time in question.

9The union submits that the facts asserted are capable of meeting both elements of article UN10.1. Counsel concedes that normally, upon receipt of a call the grievors are able to diagnose and fix the problem from wherever they are, without returning to the workplace. Counsel submits that whether the grievors perform tasks required for the maintenance of the OPS e-mail system at their office or off site, they do so by using a computer. Their ability to perform work does not depend on their physical location. Therefore, their “workplace” is not the physical location where they perform the work, but the computer itself. When a grievor has to have access to the computer upon receipt of a call while at home or other off site location, he is in fact “returning to the workplace”, and he has to keep himself available to immediately do so during these time periods. Thus, she argues, the union’s particulars do meet both requirements of the definition. She submitted that the employer contravened the collective agreement by paying the grievors on-call pay instead of stand-by pay.

10In the alternative, the union submitted that it is inappropriate to dismiss the grievances on the basis of the employer’s motion without a full hearing. First, Counsel submitted that the motion amounts to an attempt by the employer to have the Board determine the merits of the grievance through a preliminary motion. In her view, “preliminary motions” ought not result in the final disposition of the merits of a grievance. Such motions should be reserved for determination of preliminary issues between the parties. Second, Counsel argued that the determination of the instant motion would necessarily require the Board to interpret article UN10.1 as to the meaning of “returning to the workplace”. That goes to the very heart of the dispute between the parties, and therefore, ought not be decided by way of a preliminary motion. It was submitted that the union should be allowed to adduce all of its evidence and make full legal argument before the merits of the grievance are finally decided. Counsel submitted that the Board should exercise its discretion and decline to deal with the motion. In this regard, counsel cited Re Ladouceur et al, 2002-2393 (Briggs) and urged me to follow that decision.

11Union counsel further submitted that the ability of the grievors to diagnose and fix problems remotely through use of modern technology benefits the employer. The employer is able to have problems fixed quickly because the officers do not have to physically attend at the office to perform the work required. Counsel submitted that it is unfair to allow the employer to enjoy that benefit without having to pay for it.

12Having carefully reviewed the submissions of the parties, I conclude that the motion must succeed. I first turn to the union’s alternate position that the Board should decline to determine the motion. In advancing that position, union counsel did not assert anything unique about this case, which distinguishes it from the numerous other cases where the Board has heard and determined motions of this nature. In each case where a prima facie motion is made, the Board is required to determine whether the facts asserted, if accepted as true, are capable of substantiating the violation alleged. In Re Ladouceur, (supra) the Board did not decline to hear the motion. Rather, it reviewed the facts asserted and the applicable law, and decided that it would not uphold the motion in circumstances where the employer disagreed with most of the facts asserted by the union. It appears from the decision that the employer in that case, unlike the employer here, did not agree that the Board should determine the motion on the basis of an assumption that the facts asserted by the union were true. Thus at p. 13 the Board wrote:

The grievors set out complicated and detailed particulars regarding the various statutes and their application to their workplace, history of their work, their duties and responsibilities and their view of the real management expectations of them as employees in cases of emergencies. I understand that the Employer disagrees with much of that evidence and certainly disputes the characterization of most of it. That is precisely what it is necessary to have that evidence called by the Union and challenged by the Employer in cross-examination. For those reasons I cannot accede to the Employer’s preliminary motion to dismiss this grievance without hearing the Union’s evidence.

13Here the employer explicitly invited the Board to accept the facts alleged by the union as true for purposes of determining the motion. The union has not presented, and I am not aware of any authority for the proposition that a “prima facie motion” ought not be decided where it would require the Board to interpret provisions of the collective agreement and/or decide legal issues, or where such motion would require the Board to determine the merits of the grievance. To the contrary, numerous decisions including Re Difederico (supra) illustrate that the Board does exactly that when faced with a motion of this sort.

14In Re Magee, 2006-1918 (Dissanayake) at para. 13, the Board cited S. 48(1) of the Crown Employees Collective Bargaining Act, which provides that the Board “shall determine its own practice and procedure, but shall give full opportunity to the parties to any proceeding to present their evidence and to make submissions”. In relation to the prima facie motion made by the union in that case, the Board wrote, “Therefore, in the exercise of the statutory power to determine its own practice and procedure, the Board must decide whether or not it is appropriate to entertain the motion in the particular circumstances before it”. At para. 15-16, the Board concluded:

15A quick review of the employer’s particulars reveals references to numerous events involving many individuals, both bargaining unit employees and members of management. The employer was ready to proceed with its evidence to establish the assertions made in its particulars when the motion was presented. The union has given notice that it would be contesting many of the facts asserted by the employer. Therefore, it is reasonable to conclude that the hearing will be a lengthy one. At the end of that lengthy hearing the best the employer can achieve is to prove through its evidence the facts asserted in its particulars. Then the parties would make submissions as to whether the facts proven constitute justification for the employer’s failure to return the grievor to full duties.

16The Board is satisfied that in the circumstances it ought to hear and determine the motion. Since the motion would be argued on an assumption that all of the facts asserted in the employer’s particulars are proven as true, there is no prejudice to the employer. On the other hand, if the motion is allowed, a lengthy hearing would be avoided, resulting in significant saving of resources for all concerned.

15In contrast, in Re Monk 1990-2758 etc (Gray), the Board concluded that there would be no efficiency achieved by dealing with the motion because the same evidence would still have to be heard in relation to other issues in dispute, and therefore declined to deal with the issues on a preliminary basis.

16In the case at hand, the issue which forms the basis of the motion is discreet, namely whether the grievors are required to be immediately available to return to the work place within the meaning of article UN10.1. Both parties are agreed that clause (b) is a mandatory component of the definition of standby time, and therefore for the grievance to succeed, the union must meet that requirement. The union had full opportunity to put is best case as to facts through its particulars, without having to prove those facts. Therefore, as in Re Magee, there is no prejudice to the union and none was asserted. It was clear that the dispute between the parties, if the grievances proceed to a full hearing, is not limited to the requirement regarding returning to the workplace. For example, the parties were also in dispute as to the degree of immediacy expected of the grievors. It is clear that all of those other issues became moot, if the union is unable to satisfy the requirement in clause (b). I am satisfied in the circumstances that (1) there is no prejudice to the union by the Board hearing the motion, and (2) that there is significant efficiency to be achieved by hearing and determining the motion. Therefore, there is no reason to decline to hear and determine the motion.

17Now I turn to consider whether the union’s particulars make out a prima facie case for a violation of article UN10.1. Interpreting the identically worded stand-by time provision of the collective agreement (then article 15.1), in Re OPSEU (Union Grievance) (supra) at p. 24, the Board stated:

It must first be recognised that the collective agreement, including its definition of “Stand-by time” applies throughout the Ontario Public Service and not only in this particular workplace. The Board must recognize that the collective agreement creates two separate statuses- Stand-By and On-Call. Whether one status or the other exists must depend on all of the relevant circumstances in the particular workplace under consideration. Turning to the collective agreement as presently structured, the definition of “Stand-By Time” in article 15.1 has the following components:

(A) It must be a period of time that is not a regular working period.

(B) The employee must be required to keep himself immediately available to receive a call to return to work AND

(C) The employee must be required to keep himself immediately available to return to the workplace.

It is significant to note that all three components must be present before a period of time is deemed to be Stand-By time.

18At p. 26 the Board reviewed the historical evolution of the stand-by provision in the collective agreement, and at p. 27 wrote:

The old definition of “Stand-By time” required that an employee “keeps himself available for immediate recall to work”. The new article 15.1 requires that an employee “keep himself immediately available to return to the workplace”. In our view, if there is any material change with regard to this requirement, it is that under the old provision the immediate recall is to “work”, which is a broader term than the term “workplace” used in the new provision.

This demonstrates that in the new definition, which continues presently as article UN10.1, the parties explicitly amended the definition by replacing the words “recall to work” with the words “return to the workplace”. Therefore, it is reasonable to conclude that the parties intended to change the definition of Stand-By time from the broader concept of availability for “recall to work”, to the narrower, availability to “return to the workplace”.

19Under the old definition, where stand by time meant situations where an employee is required to be available for immediate recall to work, the union may have had a meritorious argument that when an employee is required to be available immediately to perform work, regardless of where that work is physically performed, that would fit within the definition. Such a provision may well have been broad enough to include work remotely performed from home or other off site location. Thus in Re Markham Stouffville Hospital, (2007) 167 L.A.C. (4th ) 425 (Albertyn) the arbitrator held that when the grievors performed the work required remotely without physically returning to the hospital, they met the terms of the collective agreement which entitled employees to call-back pay “where employees are called back to work”. Referring to Re University of Alberta, (2000) 2000 CanLII 50103 (AB GAA), 90 L.A.C. (4th) 328 (Ponak), at para. 20, arbitrator Albertyn wrote:

26 We find this case instructive because our case is much like what was contained in the first sentence there: “an employee is called back to duty”. This phrase is a lot like our “called back to work”. In University of Alberta, different from our case, the provision had two further sentences which led the board of arbitration to conclude that the call-back was qualified by the requirement to attend at the employer’s premises. Those sentences contained the words, “leave” and “leaving”, which made sense only if the employee were actually returning to the workplace. From the addition of these sentences, the board concluded that the call-back provision was not invoked by the work done off site. In our case there is no such qualifying language.

At para. 27, the arbitrator quotes from the decision in Re Northeast Mental Health Centre (2004) O.L.A.A. No. 673 (Whittaker), including the following:

Having reviewed the authorities, we find that in the absence of language which indicates something else, call back entitlement should turn on whether an employee is obliged to perform “work” for the employer where she would otherwise be entitled to private pursuits. In the absence of language in the collective agreement that would require attendance at work, call back pay should be understood as compensation for the disruption to one’s own time and nothing else. …

Arbitrator Albertyn then formulates the test to be applied as follows at para. 28:

28 The question then is whether there is language in the collective agreement which indicates that the call-back entitlement requires the conclusion that it is payable only upon physically returning to the workplace to perform the work as, on the language, was the case in Northeast Mental Health Centre.

20While those cases had to do with the entitlement to call-back pay, the same reasoning and test is appropriate in the present case. Applying that test, the conclusion is inescapable that the language in Article UN10.1 contemplates a physical return to the work place. Just as the reference to “leave” and “leaving” was held to make sense only if employees were returning to the workplace in Re University of Alberta, the reference to “required to return” has the same result. In the language before me, the language is even more suggestive of such an intention because there is explicit reference to “the work place”. In my view, it is an unreasonable stretch to interpret those words as including circumstances where the employee remains available immediately to work using the computer at home or other off site location. That would be to totally ignore the parties’ reference to the workplace. It is clear that when regularly scheduled, the grievors performed their work at their workplace, i.e. their office. The definition of stand-by time in article UN10 envisages availability to immediately return to that workplace. There is nothing in the union’s particulars that asserts that when on the rotation during after hours, the grievors are required to remain available to immediately return to the workplace.

21The particulars do assert that on occasion, where an employee is unable to access the internet off site, they would attend at the workplace to do the required work. No details are provided as to the frequency of this occurrence, other than that it was “not frequent”.

Regardless, it does not assist the union because such occurrences are the exception rather than the norm, and there is no assertion that where employees are unable to perform the needed work off site, they are required by the employer to return to the workplace, as specified in article UN10.1. Moreover, there is no assertion that because of the remote possibility that access to the internet may fail, the grievors keep themselves ready to return to their workplace every time they are on the after hours rotation. Assuming the facts to be true, that does not suffice to turn all time during the rotation into stand-by time.

22The higher benefit of stand-by pay is a recognition of the greater degree of inconvenience and the disruption of personal life, where an employee is required to hold himself or herself in readiness to immediately attend at the workplace upon receipt of a call. For example, that may require an employee to make arrangements for immediate availability of someone to care for children or to ensure that a mode of transportation is available to immediately attend at the workplace. The degree of inconvenience and disruption is greater where the employee has to be available to attend at the workplace immediately, than where the requirement is to be available immediately to perform work without having to report to the workplace. The parties have explicitly recognized this. Thus they have defined “On Call Duty” in article UN11.1 as “… (a) recall to the workplace or (b) the performance of other work as required”. Thus recall to the workplace is not always necessary for time to be deemed “On Call Duty”. Indeed article UN11.2 explicitly provides that “It is understood that a return to the workplace may not be necessary in all situations”. Therefore, the grievors’ occasional and infrequent attendance at the workplace to carry out the required work is not inconsistent with “On Call Duty” status. The definition of “On Call Duty” contemplates that sometimes attendance at the workplace may be required. Based on the facts asserted, the grievors are not called upon to endure that greater degree of inconvenience and disruption associated with a requirement to keep themselves available for immediate return to the workplace. Therefore, while they are entitled and are compensated for the lesser degree of inconvenience and disruption they have to suffer, with on-call pay for the time during the rotation, they are not entitled to the greater benefit of stand-by pay.

23Finally, assuming without finding, that it is unfair to allow the employer the benefit of having its employees perform work remotely, without paying for that benefit, it suffices to note that the Board’s jurisdiction is not to dispense fairness, but to interpret and apply the terms agreed upon between the parties. The parties have explicitly contemplated an immediate availability to return to the workplace as a condition of entitlement to stand by pay. The Board is required to give effect to that agreement of the parties, whether or not it is of the view that it results in unfairness.

24It follows from the foregoing that the particulars relied upon by the union fail to make out a prima facie case for meeting a mandatory condition for its claim for stand-by pay on behalf of the grievors. In other words, even if all facts asserted by the union are accepted as true, the grievance would not succeed. In the circumstances, the employer’s motion is upheld, and the grievances are hereby dismissed.