GSB#2013-3805

UNION#2013-0630-0002

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Beaulieu)

Union

• and -

The Crown in Right of Ontario (Ministry of Labour)

Employer

BEFORE

Bram Herlich

Vice-Chair

FOR THE UNION

John Brewin Ryder Wright Blair & Holmes LLP Barristers and Solicitors Counsel

FOR THE EMPLOYER

George Parris Ministry of Government Services Legal Services Branch Counsel

HEARING

June 9, 2014

Decision

1Numerous grievances raising identical issues were referred to me for a hearing that was scheduled for March 27, 2014. On that day the parties were able to resolve all of those grievances and to agree that the revised provincial after-hours service procedures and related documents are being implemented to the satisfaction of both parties.

2The instant grievance, however, was not part of that group, although it raises similar issues. Thus, the parties agreed to refer this grievance to me for determination pursuant to Article 22.16 of the collective agreement. This decision will therefore be without precedential value and its reasons will be succinct.

3The Grievor is an inspector under the Occupational Health and Safety Act, employed by the Ministry of Labour (“MOL”). On October 25, 2013 he was on-call. At approximately 5:15 PM, a call regarding a workplace injury came in, as is the normal after-hours process, to the Spills Action Center (SAC), administered by the Ministry of Environment. The SAC, in turn, contacted the on-call MOL manager who, upon being briefed, determined that there was no need for an inspector to attend at the worksite that night. The grievor was not contacted.

4The grievor asserts that it was he, and not the MOL manager, who ought to have been contacted by SAC. And the grievor is certain that, based upon what he knows of the incident, he would have visited the worksite that evening, not to conduct an investigation per se, but to gather some basic information and, if necessary, to secure the site.

5There is no dispute that had the grievor been called and certainly had he conducted a workplace visit, he would have been entitled to premium payment under the terms of the collective agreement.

6The employer argues, however, that there was no breach of the collective agreement arising out of either the initial contact between SAC and the MOL manager or the latter’s determination that no inspector site visit was required that evening.

7I am persuaded that the employer’s position must prevail.

8As in the case of Spicer/Union GSB File # 2009-0172, April 30, 2012, the union did not advance any claim (nor would any be available) that the referral to the manager constituted an improper assignment of bargaining unit work. I also note that in that case, the argument that such an assignment undermined certain provisions (in that case, regarding overtime) of the collective agreement was rejected and, in my view wisely, no such argument was advanced in the instant case.

9Indeed, there was no specific provision of the collective agreement alleged to have been violated. I have already noted that there was no dispute about the grievor’s remuneration had the work been referred to him – the issue before me, however, is whether the employer was obliged to refer that work to him. The union has failed to establish any such obligation.

10At best, the grievor’s case rests on alleged employer non-compliance with the terms of the Ministry Operations Division Policy and Procedures Reference Manual. It contemplates that only after-hours calls falling within certain categories including “critical injuries” are forwarded by SAC staff to the inspector on-call. (The instant case involved a critical injury – a worker had lost her footing and jumped down the last 3 steps of a set of stairs, landing on both feet. The incident occurred at approximately 10:00 AM but was not called into SAC until 5:15 PM, when it was determined that the worker had suffered a broken fibula, an injury which falls within the category of “critical”.)

11Returning to the Reference Manual, it also contemplates that an MOL manager is to be available after hours to SAC if SAC requires clarification or direction on any issue or is uncertain about the need to call an inspector.

12Even assuming non-compliance with the employer’s policy could form the basis of a grievance (a proposition which is less than evident to me), I am not persuaded that there has been any such violation in the instant case. The facts of the present case are consistent with the circumstances contemplated in the previous paragraph. And the performance of a "triage" function by the manager is equally less than surprising having regard to the Spicer decision cited earlier.

13There being no other alleged collective agreement violation, the grievance must be and hereby is dismissed.