GSB#2011-3458

UNION#2011-0605-0007

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Bertolo)

Union

• and -

The Crown in Right of Ontario (Ministry of Natural Resources)

Employer

BEFORE

Nimal Dissanayake

Vice-Chair

FOR THE UNION

Mark Barclay Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Omar Shahab Ministry of Government Services Legal Services Branch Counsel

HEARING

September 10, 2013

Decision

1In a grievance dated November 3, 2011, Mr. Darin Bertolo (“grievor”) claims that on November 1, 2011, the employer by-passed him and assigned an overtime opportunity to an employee with less seniority. The parties agreed to proceed under the mediation-arbitration process set out in article 22.16 of the collective agreement and requested that the Board initially determine whether or not there was overtime performed on the day in question.

2The work in question was performed by employee, Mr. David Allick. His time sheet for November 1, 2011 indicates that his work day started at 8:00 a.m. and ended at 4:30 p.m., with an unpaid lunch break of 30 minutes. Mr. Allick testified that the times set out in the time sheet were approximately correct, except that he may have taken about one hour for lunch.

3Mr. Allick worked and lived in Sault Ste. Marie. On November 1, 2011 he was assigned to drive to the Sudbury airport to pick up a large piece of equipment and deliver it to Sault Ste. Marie airport. He testified that with his supervisor’s permission he took the ministry truck home the previous night, leaving his own vehicle at the work place. He said that since he lived in the east end of the city he saved at least ½ hour by leaving for Sudbury in the morning directly from home. He testified that from his home he drove to the Sudbury airport in 3½ hours, avoiding the city streets in Sudbury by taking a recently completed by-pass highway. After arrival, with assistance from others, the piece of equipment was loaded on to the truck and secured in about 15 minutes. He had lunch in Sudbury and headed back to Sault Ste. Marie. Mr. Allick testified that as per his usual practice, that day he drove at a speed approximately 10 klms over the posted limit, and estimated that his average speed would have been 100 to 110 km/h. On arrival in Sault Ste. Marie he drove directly home. He had permission to keep the truck at home overnight. In the morning the next day, he drove the truck to his workplace at the Sault Ste. Marie airport and delivered the loaded truck. During his examination in chief, he testified on two occasions that he was absolutely certain that on November 1, 2011 he did not work for more than 8 hours.

4Under cross-examination, Mr. Allick agreed that the distance between Sault Ste. Marie and Sudbury is 350 to 360 kms. He also agreed that he did not complete a log indicating start/end or break times and that until recently completion of a log was not a requirement. Mr. Barclay pointed out that the equipment he had to load was heavy and large and suggested that it “could have” taken longer than 15 minutes to load and secure it. Mr. Allick responded that the truck was specially equipped for loading large and heavy machinery, and that with the others helping him, it did not take longer than 15 minutes. When Mr. Barclay suggested that it was unusual that he kept a ministry truck loaded with expensive machinery at home overnight, Mr. Allick replied that he had obtained permission to do so because he had two young children and wanted to end the work day as early as possible. He agreed that management had not directed him to not work overtime that day, but he chose not to drive an additional ½ hour that evening to take the truck to the Sault Ste. Marie airport. By doing that he benefitted by getting home early, and it also avoided unnecessary overtime expenses for the employer.

5Mr. Tom Thomson, Manager of CL-415 Water Bomber, testified that based on his knowledge of “history”, he was aware that except in some unusual circumstance, Ministry employees were able to drive from Sault Ste. Marie to Sudbury, pick up equipment, and return in a 8 hour day. Therefore, when he assigned the work to Mr. Allick on November 1st, he did not expect to incur overtime.

6The union submitted that the grievance was filed because it was reasonable to expect that the work in question would take longer than 8 hours. It was submitted that the employer should be concerned about liability resulting from theft of equipment while trucks are parked overnight at employee homes. The employer also would be expected to be “unhappy” about employees speeding on highways while driving ministry vehicles. Similarly best practices were not followed in that no time logs were maintained. Even the time sheet was not accurate in that it records a 1/2 hour lunch break, while Mr. Allick testified that he took one hour for lunch. Mr. Barclay also pointed out that Mr. Allick did not have a very good recollection of what he did that day. He was not sure where he had lunch or how many people helped him to load. Thus his testimony was not reliable. In the circumstances, the Board was urged to conclude that Mr. Allick worked in excess of 8 hours on the day in question.

7The only person who testified with direct knowledge as to what work and hours were performed was Mr. Allick. Assuming that in completing the work “best practices” were not observed in that Mr. Allick exceeded speed limits, did not keep logs and kept a loaded truck overnight at home, that has no bearing on the issue here, which is whether Mr. Allick worked more than 8 hours. The uncontradicted evidence is that he did not. While he could not recall some details of the work day he was adamant that he did not work more than 8 hours. The only evidence adduced by the union to challenge Mr. Allick’s evidence was a print out from Google indicating that the distance from the Sault Ste. Marie airport to the Sudbury airport is 357 kms and that it takes “about 4 hours 19 minutes” to travel that distance. However, there is no indication as to the driving speed used for that estimate, Mr. Allick’s direct testimony was that he exceeded the speed limits. Nor is there any evidence that Mr. Allick took the same route used by Google for its estimation.

8It is up to the employer in the exercise of its management rights to establish and enforce policies on speeding, logs, and taking ministry vehicles home etc. If the employer assumed risk of liability by not following “best practices” as suggested by the union, it is the employer’s choice and it will have to deal with the consequences. This Board has no authority over that in the absence of a grievance alleging that the failure to follow best practices had resulted in a violation of collective agreement or employment related statutory rights. That does not assist the union with regard to the instant grievance.

9The testimony of Mr. Allick was clear and unwavering. It must be accepted unless there is reason to find it implausible or not credible. The Board sees no reason to do so. The Google estimate is for a round trip airport to airport. He did not drive from airport to airport. He saved time by speeding and taking the truck home. Those strategies enabled him to complete the work within 8 hours. There is no motive suggested as to why Mr. Allick would state that he worked only 8 hours, when he had to benefit by way of overtime pay if he worked and claimed for excess hours. Therefore the Board concludes that Mr. Allick did not exceed 8 hours of work on November 1, 2011 and that there was no overtime opportunity on that shift.

10It follows that the instant grievance is unsubstantiated and it is hereby dismissed.