GSB# 2017-3282

UNION# 2017-0584-0012

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Grant)

Union

• and -

The Crown in Right of Ontario (Ontario Clean Water Agency)

Employer

BEFORE

M.V. Watters

Arbitrator

FOR THE UNION

Allison Vanek Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Joohyung Lee Treasury Board Secretariat Legal Services Branch Counsel

HEARING

November 21, 2018

DECISION

1At the outset of the hearing, the parties filed the following Agreed Statement of Facts:

“1. David Grant (hereinafter known as “the Grievor”) is currently a permanent OPSEU-represented electrician with the Ontario Clean Water Agency, working out of the Lorne Park Water Treatment Facility. He has worked in this position since August 8, 2016.

2. At all material times, the Grievor worked for (sic.) morning shift, Monday to Friday, 7:00 am to 3:30 pm, with a 30 minute lunch break (i.e. eight (8) hours of work).

3. The Grievor filed a grievance on December 21, 2017, alleging violations of Articles 2, 3 and 13 of the OPSEU Collective Agreement relating to the discontinuation of a management policy allowing employees to take company vehicles home when on call. The Grievor specifically grieved that the use of his own vehicle for on-calls on February 25, 2017, April 8, 2017, July 11, 2017, September 23, 2017, November 4, 2017, November 5, 2017 and November 19, 2017 cost him a total of $196.00 under the rates set out in Article 13-Kilometric Rates.

4. The Grievor was on-call, and was called in to work, on the following seven dates in 2017, prior to filing the grievance:

a. February 25, 2017

b. April 8, 2017

c. July 11, 2017

d. September 23, 2017

e. November 4, 2017

f. November 5, 2017

g. November 19, 2017

5. For his work on these seven dates, the Grievor was paid call-back pay in accordance with Article UN 9 of the Collective Agreement.

6. For each of these seven dates, the Grievor travelled from his place of residence to his home worksite of Lorne Park Water Treatment Facility in order to attend work, a distance of 35km each direction, for a 70km round trip.

7. A Formal Resolution Stage meeting was held on January 10, 2017. (Should read January 10, 2018).

8. The grievance was denied on January 17, 2018.

9. It is the Employer’s position that there is no obligation under the Collective Agreement for the Employer to provide employees with fleet vehicles for call back, and that the Collective Agreement similarly doesn’t provide for the payment of mileage for employees who are called back to work.

10. It is the Union’s position that the time in which it takes for an employee to respond to an on-call call is time on the Employer’s business, as per Article 13.1, and thus that the Grievor’s mileage ought to have been paid in accordance with Article 13.1 for the seven dates in question, with the total amounting to $196.00.”

2The provisions of the collective agreement relevant to the resolution of the grievance are as follows:

ARTICLE 13 – KILOMETRIC RATES

(FXT, SE, FPT, RPT)

13.1 If an employee is required to use his or her own automobile on the Employer’s business, the following rates shall be paid effective January 1, 2009:

Kilometres Driven Southern Ontario Northern Ontario

0- 4,000km 40 cents/km 41 cents/km

4,001-10,700km 35 cents/km 36 cents/km

10,701-24,000km 29 cents/km 30 cents/km

over 24,000km 24 cents/km 25 cents/km

ARTICLE UN 9 – CALL BACK

(FPT, RPT)

UN 9.1 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 one-half (1½) times his or her basic hourly rate.

UN 9.2 Where an employee is contacted by the Employer outside the workplace prior to the starting time of his or her next scheduled shift, in circumstances where such contact is considered to be a “call back to work” but the employee is not required to physically attend at the workplace, the employee shall be paid a minimum of four (4) hours’ of pay at one and one-half (1½) times his or her basic hourly rate. The initial call and any subsequent calls during that same four-hour period, will be treated as a single “call back to work” for pay purposes.

ARTICLE UN 11- ON-CALL DUTY

(FXT, SE, FPT, RPT)

UN 11.1 “On-Call Duty” means a period of time that is not a regular working period, overtime period, stand-by period or call back period during which an employee is required to respond within a reasonable time to a request for:

(a) recall to the work place, or

(b) the performance of other work as required.

UN 11.2 It is understood that a return to the workplace may not be necessary in all situations.

UN 11.4 Should recall to the workplace be required the employee is expected to be able to return to the workplace within a reasonable time.

UN 11.7 Effective February 26, 2009, where an employee is required to be on-call, he or she shall receive one dollar and twenty-five cents ($1.25) per hour for all hours that he or she is required to be on-call.

Effective, January 1, 2011, where an employee is required to be on-call, he or she shall receive one dollar and forty cents ($1.40) per hour for all hours that he or she is required to be on-call.

3The grievor, Mr. David Grant, was the sole witness called to give evidence on behalf of the Union. In substance, he confirmed the material facts set out in the above Agreed Statement of Facts.

4The grievor testified that he was told, when initially hired, that an OCWA fleet vehicle would be available for call-back purposes. He advised that he was generally scheduled to be on-call for one (1) week on, followed by one (1) week off. This schedule was subject to change to accommodate other employee’s vacations. While on-call, the grievor was permitted to take an OCWA vehicle home and to use same for purposes of responding to a call-back to the workplace. It was the grievor’s evidence that this changed in February, 2017. He understood that the Employer changed its policy at that time and that, thereafter, OCWA vehicles were not made available for employees who were on-call. The grievor stated that he, and other employees who worked on-call, were verbally informed of this change at a meeting with their Manager, Mr. Sheldon Belbin. He indicated that he was not provided with any advance written notice of the change. It was his recollection that no explanation was given for the Employer’s decision. The grievor testified that he asked Mr. Belbin if the Employer would provide compensation for the use of his personal vehicle when on-call. He recalled that his Manager was unsure as to whether any compensation would be offered. The grievor subsequently discovered, after submitting a mileage claim, that the Employer would not pay the kilometric rates, set out in article 13.1 of the collective agreement, when he used his personal vehicle to travel from his residence to the Lorne Park Water Treatment Facility, and return, when called back to work on an on-call basis.

5The grievor maintained that the above-described change adversely impacted him both financially and logistically. With respect to the former, it resulted in an added expense in terms of fuel and caused additional wear and tear to his vehicle. With respect to the latter, the change deprived his family of the use of one (1) of the two (2) family vehicles, when he was on-call. The grievor advised that five (5) members of his family used these vehicles from time to time. He observed that they formerly had access to two (2) vehicles when he was able to use an OCWA vehicle for call-backs.

6The grievor noted that employees are expected to return to the workplace within a reasonable period of time when called back. It was his evidence that he has never been told what constitutes a reasonable period. The grievor asserted that, after the change in policy, he was effectively working for the Employer from the time he answered the telephone request to return to work on a call-back. The grievor acknowledged that he is not paid the kilometric rates under article 13.1 when he uses his personal vehicle to travel to and from work for his regularly scheduled Monday to Friday shifts.

7The grievor advised that he was called in to work approximately eleven (11) times in 2018, and that he did not receive any compensation on those occasions for the use of his personal vehicle.

8Mr. Lorenzo Marsiglia was the sole witness to present evidence for the Employer. He is currently the Water Systems Manager at the Lorne Park Water Treatment Facility. Mr. Marsiglia previously worked as a Manager at the Lakeview Water Treatment Facility.

9Mr. Marsiglia disagreed with the suggestion that the Employer’s provision of OCWA fleet vehicles to employees on-call amounted to a policy. Instead, he described such provision as an “inconsistently applied practice”. In this regard, he noted that at the Lorne Park Water Treatment Facility some Operations employees did not routinely take OCWA vehicles home when on-call, while other Electrical and Maintenance staff did take them home on an inconsistent basis. Mr. Marsiglia further advised that, of the eleven (11) employees at the Lakeview Water Treatment Facility who rotated through on-call, only one (1) took the fleet vehicle home. It was his evidence that the change here in issue was made to “align” the practice, so that it was consistent at both of the aforementioned Facilities. He added that the Employer had also experienced some “vehicle misuse” of fleet vehicles by employees who had taken them home while on-call. Mr. Marsiglia agreed that the grievor had not engaged in this misuse.

10Mr. Marsiglia advised that, after the change in practice, trades employees working out of the Mississauga, Brampton and Caledon Transmission Facilities were still permitted to take fleet vehicles home when on-call. He explained that these employees can potentially be directed to multi-site locations, and are not sent to their home locations, when on-call.

11Mr. Marsiglia explained that telephone calls initiating call-backs are made by Operators running the facilities, and not by Managers. During such calls, the Operator describes the nature and severity of the problem which needs to be addressed. Mr. Marsiglia stated that some issues can be resolved over the telephone, while others require the on-call employee to go on-site to respond to the identified problem. In his words, “some call-outs are more critical than others”. He suggested that employees on-call will only learn how quickly they need to respond through their exchange with the Operator. Mr. Marsiglia agreed that pursuant to article UN 9.2, an employee receives a minimum of four (4) hours of pay at one and one-half (1½) their basic hourly rate, even if not required to attend at the workplace. He acknowledged that, in that event, the employee gets paid for answering the telephone and communicating with the Operator about the problem.

12The Union does not assert that employees on-call are entitled to the use of an OCWA fleet vehicle, or that the Employer was obligated to continue the prior practice. Rather, it is the position of the Union that the grievor was entitled to receive the applicable kilometric rate, as provided for by article 13.1 of the collective agreement, in respect of the seven (7) call-ins in 2017 and all of the call-ins thereafter up to the date of this Decision. From the perspective of the Union, the grievor was “on the Employer’s business”, for purposes of article 13.1, commencing from when he received the call-in by telephone and continuing for the duration of his drive to the workplace, and return. Its representative referenced article UN 9.2 and observed that employees are compensated thereunder even though they are not required to actually attend at the worksite. She submitted, in effect, that this treatment supports the argument that the Employer’s business starts when the employee first answers the telephone relating to a call-in request. Simply stated, the Union’s representative argued that if answering the telephone is deemed to be work, then the subsequent drive to the workplace, if necessary, must occur while the employee is on the Employer’s business. Indeed, she suggested that if an employee is considered to be working at the time they respond to the telephone call, they are, in substance, travelling from one (1) work location to another and not from home to the worksite. The Union’s representative further argued that the grievor was “forced” to use his personal vehicle because of the discontinuance of the prior practice. I was asked to infer that the Employer authorized this usage. On her analysis of the facts, the Employer knew that the grievor intended to use his own vehicle on call-ins, given his question to the Manager about compensation payable following the change in practice.

13The Union relies on OPSEU (Sinacori) and Ministry of Correctional Services (1989), GSB No. 768/88 (Fisher) in support of its position.

14In response, it is the Employer’s position that the grievor was not entitled to receive the kilometric rates set out in article 13.1 of the collective agreement for the call-backs in issue. Counsel for the Employer referenced the following reasons to support this position:

1. The grievor was compensated for all of the call-backs under article UN 9.1. On counsel’s reading, this provision is intended to compensate employees for all of the inconvenience and associated cost, including fuel and wear and tear, occasioned by a call-back;

2. The grievor was not required or authorized to use his own vehicle on the Employer’s business. Counsel submitted that the grievor’s decision to use his personal vehicle on the call-backs involved an “element of personal choice”, in the sense that he could have elected to use an alternate method of transportation, such as public transit. Counsel observed that the Employer does not dictate how an employee gets to the workplace following a call-back. The sole requirement is that the employee arrive on site within a reasonable period of time. He noted that acceptance of the Union’s position could potentially obligate the Employer to pay mileage from wherever the employee is at the time of receiving the call-in, even if that location requires travel from a place that is significantly distant from the worksite. Counsel argued that, in such a scenario, the Employer would have no control over the distance an employee travels for a call-in. It was his submission that an employee should not be able to unilaterally extend the Employer’s financial obligation on the basis of where they are at the time of the call-in; and

3. Article 13.1 of the collective agreement does not apply to a situation where the employee travels from his residence to his regular workplace.

15The Employer relies on the following authorities in support of its position: OPSEU (Hymers et al.) and Ministry of Natural Resources (2008), GSB No. 2002-0104 et al. (Kirkwood); OPSEU (Ritchie) and Ministry of Community Safety and Correctional Services (2008), GSB No. 2007-0277 (Harris); OPSEU (Howes) and Ministry of Transportation (1988), GSB No. 1092/87 (Watters); and OPSEU (Clark) and Ministry of Correctional Services (1990), GSB No. 950/89 et al. (Gorsky).

16Of all of the authorities cited, the Decision in Clark best resembles the circumstances existing in the instant case. There, the grievor was a Correctional Officer working out of the Burtch Correctional Centre. On April 7, 1989, which was a day off for the grievor, he received a telephone call from a Supervisor at about 12:00 noon and was instructed to report to the Correctional Centre to speak to a Ministry Inspector about an event which had occurred on the previous day. The grievor arrived there at approximately 1:00 p.m. on April 7th. He subsequently met with the Inspector from 4:00 p.m. to 5:00 p.m. The grievor returned to his residence at approximately 6:00 p.m. The grievor travelled to and from the interview in his own car. His residence was located thirty-two (32) kilometres from the workplace. The grievor in Clark was paid four (4) hours pay at one and one-half (1½) times his basic hourly rate for the call-back pursuant to article 14.1 of the collective agreement (current article UN 9.1). In his grievance, the grievor claimed entitlement to the applicable kilometric rate under article 22.1 (current article 13.1) and travel time under article 23.1 (current article 14.1).

17The Board in Clark after reviewing a number of authorities, many of which were Decisions of the Grievance Settlement Board, made the following findings: (i) the grievor, in fact, was called back to work; (ii) article 22.1 (current article 13.1) only applies where an employee is required to use their personal vehicle on the Employer’s business when travelling to a place other than their headquarters; (iii) the grievor was not working when travelling between his residence and his regular place of work; (iv) such travel was not part of the call-back; and (v) article 14.1 (current article UN 9.1) was intended to provide compensation for the disruption and expense incurred by an employee as a consequence of the call-back. Ultimately, the Board held that the grievor was not entitled to either mileage or travel time. Its reasoning is captured by the following excerpts from the Decision:

“For the reasons above stated we find that Article 23 does not cover the facts of this case. The Grievor had left “his place of work and [was] subsequently called back to work prior to the starting time on his next scheduled shift..” within the meaning of Article 14.1. In being called back to work, he was required to go to his regular headquarters and this would not bring Article 23 into operation. Article 22 only comes into operation where an employee is required to use his own automobile on the Employer’s business in travelling to a place other than his headquarters, for the same reasons as apply in the case of Article 23. The fact that the Grievor was called back to work on his day off and the fact that it was for an interview does not affect the result. The Grievor falls squarely within the provisions of Article 14.1.”

(page 7)

“………………………………………………………………………………………………Articles 22 and 23 do not deal with travel between an employee’s residence and his or her regular headquarters.”

(page 10)

“……………………………………………………………………………………………………………………………………………………..For the reasons given above, the Grievor cannot be considered to be working during the travel time to and from his regular place of work, and the Collective Agreement does not address the subject of payment from the time the Grievor received the telephone call to the time he returned home. It is neither overtime, part of call back, nor travel time under Article 23, nor can it attract “kilometric rates” under Article 22.”

(pages 12-13)

-and-

“……………………………………………………………………………………………….All of the purposes of article 14.1 were fulfilled. The payment to the Grievor was to provide him with a guarantee of adequate compensation for the significant disruption and expense incurred by him as a result of the call back.”

(page 8)

18I find the reasoning in Clark to be persuasive and directly applicable to the resolution of the instant grievance.

19Article 13.1 of the collective agreement provides that an employee claiming entitlement to kilometric rates must satisfy two (2) conditions. First, the travel must be “on the Employer’s business”. Second, the employee’s use of their personal vehicle must be required and authorized, either directly or by inference, by the Employer. The Decisions in Sinacori, Ritchie, and Howes all address these requirements.

20In Sinacori, the grievor travelled to a job interview for a different position, albeit in the same Ministry, on a scheduled day off. His grievance was subsequently dismissed with respect to the claim for payment for the kilometres driven. The Board there determined that the travel to and from the interview was not on the Employer’s business and that the Employer had not required the grievor to use his personal vehicle to attend same.

21The Union’s representative referenced the following passage from the Sinacori Decision:

“It seems more consistent with the overall application of this Collective Agreement that “employer’s business” should be interpreted to mean business which the employer has the right to compel the employee to perform, not activities which are voluntary to the employees. The easy way to test the issue of mandatory v. voluntary is to ask, “Could the employee be disciplined for refusing to travel to the site specified?” If no, then the activity, and thus the travel, is voluntary and therefore, not on the employer’s business.”

(pages 3-4)

Simply stated, she asserted that the instant grievor could have been disciplined for not responding to the call-ins, or for not responding within a reasonable period of time. On her analysis, the required travel was mandatory, and not voluntary, and therefore was undertaken while on the Employer’s business. I accept the submission that the grievor could potentially face discipline for not responding to a call-back. I do not think, however, that the potential for discipline is determinative in the circumstances of this case. Clearly, the grievor could be subject to discipline for failure to attend his regular Monday to Friday shifts. That possibility, though, does not entitle him to mileage for his regular commute to work. I have not been persuaded that there is a material distinction between the grievor’s regular commute and the travel engaged in when responding to a call-back.

22In Ritchie, the grievor claimed the kilometric rates under article 13.1 in respect of a two and one-half (2½) year period during which she was backfilling a temporary vacancy in the Burlington Probation and Parole Office. The grievor’s home position was the Parkdale Probation and Parole Office. In June, 2004, the grievor asked the Employer to move her from the Parkdale Office, as she felt uncomfortable working there given that her estranged husband also worked out of that location. Her request led to the temporary backfill in Burlington. The Decision notes that the distance from the grievor’s home to the Burlington Office was thirty-seven (37) kilometres and that the distance from her home to the Parkdale Office was eighteen (18) kilometres. The Vice-Chair in Ritchie found that the grievor was not entitled to the mileage claimed, as the Employer did not require her to use her personal vehicle to commute to the Burlington Office. He observed that the Employer had not required the grievor to take the Burlington position and that her travel to that location was not as a consequence of a decision taken by the Employer for business reasons. Rather, in his judgment, the grievor accepted the position in Burlington for “personal reasons”. In this regard, the Decision states: “There was no business purpose in this travel other than that of every other employee going to and returning from their workplace” (page 5).

23The grievor in Howes was a Senior Construction Technician with the Ministry of Transportation. In the period April 27 to June 24, 1987, the grievor was assigned to a project at Brock Road in Pickering. His designated headquarters in Baldwin was some seventy (70) kilometres from the project site. The Employer wanted the grievor to be on-site for eight (8) hours each day, rather than travel to and from the site on an “on-shift” basis. As part of its decision-making process, the Employer prepared a weekly cost comparison. The document compared the cost of having the grievor stay on-site for the week against the cost of his commute to and from the designated headquarters on a daily basis. This exercise disclosed that it was of less expense to the Ministry to require the grievor to remain at the project site for the duration of the work week. The grievor was then informed of the Ministry’s preference that he stay on-site rather than commute. He was told that if he continued to commute, his travel expenses, including mileage, could not exceed the calculated cost of staying on-site. Notwithstanding this information, the grievor decided to continue his daily commute. As a consequence, mileage was capped by the Employer so as to equalize travel costs to the cost of remaining on-site. The grievor subsequently filed a grievance because of the Employer’s refusal to pay for all of the travel occasioned by his decision to commute. The Board, ultimately, found that the grievor’s personal election to commute on a daily basis did not impose an obligation on the Employer to compensate him for the full cost of the commute, including the full mileage cost. It viewed the grievor’s decision as personal in nature in that it was taken in accordance with the interests of the employee. The Decision reads as follows on this aspect of the case:

“……………………………………………………………………………………………Indeed, we find that when the grievor elected to commute, and thereby incur additional travel expense, he could not be considered as engaging in the ‘business of the employer’ for purposes

of Article 22 (Kilometric Rates)………………………………………….”

(pages 7-8)

24The Decisions in Sinacori, Ritchie and Howes, unlike that in Clark, did not involve a call-back to the workplace. Clearly the fact situations in these Decisions are distinguishable from the circumstances surrounding the present grievance.

25On my reading, articles UN 9.1 and UN 9.2 contemplate two (2) different situations. Article UN 9.1 involves the situation where the employee does have to return to the workplace to address the problem. In contrast, article UN 9.2 speaks of instances where the employee does not have to return to the workplace but, instead, can respond to the problem remotely over the telephone. I have not been persuaded that what may occur under article UN 9.2, namely that an employee’s work might commence when they pick up the telephone on a call-back, is relevant to how article UN 9.1 should be interpreted and applied here.

26In summary, I accept the reasoning expressed in the Clark Decision and find that article 13.1 of the collective agreement only applies where an employee is required to use their personal vehicle on the Employer’s business when travelling to a place other than their regular workplace. I am similarly satisfied that the grievor was not working when travelling between his residence and the Lorne Park Water Treatment Facility, and return, when responding to the call-backs. Put another way, he was not then travelling on the Employer’s business. Consistent with Clark, I further find that the grievor’s entitlement to compensation for the inconvenience and expense associated with a call-back flows from article UN 9.1. I also consider it material that there is no evidence that the Employer required, or authorized, the grievor to use his personal vehicle for any of the call-backs here in issue.

27For all of the above reasons, the grievor is not entitled to be compensated for the kilometres driven under article 13.1 of the collective agreement. His grievance is, accordingly, dismissed.