GSB# 2017-0204

UNION# 2017-0467-0012

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Jackson)

Union

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Felicity Briggs

Arbitrator

FOR THE UNION

John Wardell Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Greg Gledhill Treasury Board Secretariat Legal Services Branch Employee Relations Advisor

HEARINGS

June 8 and November 17, 2017

Decision

1Michael Jackson is a Correctional Officer at the Quinte Detention Centre. On April 7, 2017 he filed a grievance that said:

On March 4/17 I worked my regular shift 0630-1830 hrs. at the Quinte Detention Centre. I was called back to work for an emergency search at the institution. I worked 2130 to 0001 hrs. and was paid 2.5 overtime hours at time and a half.

2By way of remedy he requested to be compensated “as per COR9-call back”.

3This grievance was heard at the Provincial Overtime Table where all CO grievances regarding allegations of improper overtime pay are heard. Accordingly, in accordance with the practice this decision is without precedent or prejudice.

4There is no dispute on the facts. As set out in his grievance, Mr. Jackson worked his full twelve hour shift on March 4, 2017. He then returned home.

5Prior to March 4, 2017 Mr. Jackson had indicated – on the HPRO system - his availability to work a part shift of overtime during the evening of March 4th.

6As the result of a snow storm and staff having difficulty getting to the workplace, there was a need for Correctional Officers who had not been previously scheduled. The grievor had left the workplace. The Employer phoned the grievor a number of times and messages were left. Eventually the grievor got the messages, phoned into Q.C.C. and was asked if he would come in to work. He responded in the affirmative and did work from 2130 until midnight.

7In addition to calling the grievor, the Employer contacted at least one other CO who had not signed up for overtime availability on HPRO. That CO was asked to come to work and he agreed. According to the Union, he was not ordered to do so. The Employer did not dispute this assertion. That CO received the four-hour minimum payment for being called back into work. It is the grievor’s view that he should have received the same compensation as this other CO.

8The Union contended that call back applies to instances when an employee has left the workplace and is asked to return to work before the commencement of his/her next shift. COR 9.1 of the Collective Agreement states:

An employee who leaves his or her place of work and is subsequently called back to work prior to the starting time of his or her next scheduled shift shall be paid a minimum of four (4) hours’ pay at one and a half (1½) times his or her basic hourly rate.

9The Union urged that there is nothing in the Provincial Overtime Protocol (“POP”) that limits or restricts that provision. In the absence of clear language in this document taking away the right to call back, COR 9.1 applies and the grievance should be upheld.

10The Union directed the Board’s attention to the most recent Questions and Answer document that was jointly produced by the parties in June of 2009. At question four it is stated, in part:

In an emergency/crisis situation, when staff response time to attend the institution or the site of the emergency is a priority, crisis management plans would take precedence, as they have in the past (i.e. calling in staff who live closest to the institution in an emergency).

It was contended that the parties put their minds to instances when the protocol would be bypassed and people would be called back to work. That is what occurred in this instance and the grievor should receive call back pay as set out at COR 9.1.

11The Union relied upon Re Labatt Breweries Ontario (London) & Brewery, General and Professional Workers’ Union, Local #1, 2006 CanLii 1319 (ON LA), (Shime). In that decision Arbitrator Shime considers the purpose of both call back and overtime. On page 5 he states:

Much may be gleaned from the ordinary nomenclature when it comes to distinguish call-in/call-back from overtime. Call-in/call-back occurs when an employee has left the workplace, but is required to return to the workplace for some specific reason. Thus the employer may require the employee to return because a particular work situation has arisen such as an emergency or an unexpected work event. Many of the earlier cases referred to an emergency situation, but it now appears, subject to the Collective Agreement, most circumstances which require an employee to return to the workplace fall within the concept of call-in/call-back.

Overtime, as is apparent from the nomenclature and from the decided cases, is a period of time that spills over from or extends an employee’s regular work period. That time, as it now appears, may occur at the commencement or at the end of an employee’s regular work schedule.

12Anticipating the Employer’s argument, the Union noted that Arbitrator Shime did not agree that in order to be eligible for call back pay an employee must be ordered into work. It was noted at page 6:

…..Where it is done voluntarily or on consent it nonetheless may constitute a call-in/call-back because initially it is the employer that requires the work to be done and requests the employee to return to the workplace; the mere acquiescence or consent by the employee or voluntary return does not negate the concept of call-in/call-back, because it is the employer that requires the work to be done and requests the employee to return to the workplace at a time that is disruptive to the employee’s personal time.

13It was the