GSB# 2016-0023

UNION# 2016-0234-0065

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Faulkner)

Union

• and -

The Crown in Right of Ontario (Ministry of the Solicitor General)

Employer

BEFORE

Brian P. Sheehan

Arbitrator

FOR THE UNION

Gregg Gray Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Caroline Markiewicz Treasury Board Secretariat Employee Relations Advisor

HEARING

December 17, 2019

Decision

1Laurie Faulkner (the “grievor”) is a General Duties Officer employed at the Vanier Centre For Women. On February 19, 2016, she filed a grievance asserting that the Employer violated the collective agreement by not paying her four hours of “Call Back” pay for hours worked on February 8, 2016.

2This grievance was heard at the Provincial Overtime Table wherein grievances regarding allegations of improper overtime pay are adjudicated. Accordingly, in accordance with the practice, this decision is made without precedent or prejudice.

3The facts associated with this matter are not in dispute. The grievor was scheduled to work a 6 AM to 2 PM shift on February 8, 2016. On February 7, 2016, at approximately 3:20 PM, she was called at home and asked whether she would be willing to come in at 5 AM on February 8, an hour before the start of her scheduled shift. She accepted that offer and subsequently worked from 5 AM to 2 PM on February 8.

4The reason that the grievor was requested to come in to work early on February 8 was to assist in the release of intermittent inmates who were scheduled to be released that Monday morning.

5The grievor on HPRO had only indicated a willingness to work shift E14 as overtime (a full 8-hour shift of work scheduled to commence after the grievor’s regular shift on February 8). She did not indicate that she was available to work a part shift of overtime on that day.

6The grievor was paid an hour of overtime pay for the hour worked between 5 AM and 6 AM, in addition to her regular pay for hours worked on that day. It is the position of the Union and the grievor that she should have been entitled to “Call Back” pay, pursuant to Article COR 9.1 of the collective agreement; such that, the first four hours she worked on February 8 should have been paid at the applicable overtime rate.

7The wording of Article COR 9.1 is as follows:

ARTICLE COR 9 - CALL BACK

COR9.1 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 (1 ½) times his or her basic hourly rate.

8The position of the Union is that the scenario involving the grievor on February 8 squarely fits within the confines of Article COR 9.1. Specifically, the grievor had left work at the end of her previous shift and was called into work prior to the start of her next scheduled shift.

9Mr. Gray, on behalf the Union, further submitted a key relevant fact in this matter is that the grievor had not checked off on HPRO a willingness to work overtime in the form of part shifts on February 8, 2016. The Union accepts that if, in fact, the grievor had indicated that she was available to work overtime by way of part shifts on the day in question, the Employer could have quite rightly recognized the additional one hour worked by the grievor, prior to the commencement of her regular shift on February 8, as the fulfillment of a desire on her part to work overtime in the form of part shifts.

10Further to the above point, the Union places particular reliance on the reasoning in the Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) and Ontario Public Services Employees Union (Jackson) GSB #2017-0204, a Provincial Overtime Table decision of Arbitrator Felicity Briggs. It is asserted that the reasoning in that case stands for the proposition that Article COR 9.1 applies if an employee has not made himself/herself available for overtime on HPRO for the shifts covering the work in question and is called into work prior to the commencement of his/her next scheduled shift.

11The Union, in the course of its submissions, also cited the following authority: Labatt Breweries Ontario (London) and Brewery, General and Professional Workers’ Union, Local #1 (2006) CANLII 1319 (ONLA) (Shime).

12For the Employer, in accordance with the parties’ Overtime Protocol, the hours worked by the grievor on the day in question constituted a “shift extension”, and as such, was not a scenario of a “call back” for the purposes of Article COR 9.1; but rather, it was properly treated as a simple overtime opportunity worked by the grievor.

13Ms. Markiewicz, on behalf of the Employer, further asserted that the totality of circumstances has to be assessed in evaluating whether Article COR 9.1 is applicable. In this regard, it was asserted that in accordance with the Overtime Protocol, the fact that the grievor had not indicated on HPRO that she was available to work overtime in the form of a part shift did not render her ineligible to be offered the work as overtime in the form of a “shift extension”. Further to this point, it was noted the grievor volunteered to work the extra hour on February 8 when she was contacted the previous afternoon.

14The Employer further asserted that the Question and Answer Memorandum forwarded to employees regarding the Overtime Protocol makes it clear that a part shift overtime opportunity was distinct from the circumstances of a “shift extension”. Further to this point, it was submitted that Article COR 9.1 clearly would not have been applicable if the grievor had worked an extra hour at the end of her shift. By logical extension, it was submitted that there would be no reason to presume the parties intended that the grievor working an extra hour prior to the commencement of her shift should be treated any differently.

15Ms. Markiewicz also suggested that it was not the practice of the Employer to schedule part-shift overtime opportunities of only one hour in duration.

16A review of the relevant jurisprudence, the Employer submitted, also suggests that if the work in question was performed voluntary and was contiguous to an employee’s regular scheduled shift, that it should not be viewed as a “call back” scenario. Specifically, it was argued that arbitral jurisprudence indicates that the purpose of a “call back” premium is to compensate the employee for the inconvenience and transportation costs associated with incurring an extra trip to and from the workplace. In support of that proposition, the Employer relied upon the following authorities: Sun Country Regional Health Authority and Canadian Union of Public Employees Local 5999 2012 CanLII 64121 (SKLA) (Pelton); County of Kent and Ontario Public Service Employees’ Union (1982) 1982 CanLII 4986 (ON LA), 8 L.A.C. (3d) 188 (Swinton); City of Toronto and Canadian Union of Public Employees, Local 79 (1983) 1983 CanLII 4902 (ON LA), 12 L.A.C. (3d) 232 (P. Picher).

Decision

17At one level, the position of the Union in this matter is quite understandable given the Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) (Jackson), supra, decision. In that case, Arbitrator Briggs found Article COR 9.1 not applicable to the circumstances of a situation that had all the “earmarks” of a classic “call back” situation (an employee being called back to work after the end of his/her shift to perform required work and returning home upon the completion of the required work; and then subsequently returning to work for the commencement of his/her next scheduled shift), on account of the fact the employee had indicated on HPRO he was available to work overtime with respect to the hours in question. Arguably more importantly, from the Union’s perspective, Arbitrator Briggs noted that another employee who was called back into work but who had not indicated his availability for overtime on HPRO for the shift in question was properly paid “call back” pay pursuant to Article COR 9.1. Accordingly, it was asserted that since the grievor in this case had not indicated on HPRO she was available to work overtime with respect to the hours in question, Article COR 9.1 was applicable to her circumstances.

18Moreover, the Union’s argument that a straightforward application of the wording of COR 9.1 to the relevant facts relating to the grievor suggests that the requirements of that provision were satisfied, is appreciated. In this regard, there is no doubt the grievor had left her place of work and was called to work prior to the start of her next scheduled shift.

19Notwithstanding those points, it is my view that the position of the Employer in this matter should prevail. In this regard, the Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) (Jackson), supra, decision is distinguishable from the relevant facts in the case at hand. Specifically, the reasoning in that case, in my view, is limited to scenarios of a classic “call back” scenario, and does not address the more fundamental question as to the applicability of Article COR 9.1 to the scenario of an employee voluntarily working overtime hours contiguous to the start of his/her shift.

20Further to the above point, and while there is not necessarily unanimity on this point, arbitrators have generally interpreted “call back” provisions purposively through the prism that the entitlement to such a premium is associated with the employee being inconvenienced by and incurring additional costs, as a result of needing to make an additional trip to and from work. The rationale associated with this “two trips” rule is summarized in the following excerpt from City of Toronto, supra:

A number of arbitration cases have considered the general purpose of call-in provisions. In Re Hydro-Electric Com'n of Town of Mississauga and Int'l Brotherhood of Electrical Workers, Local 636 (1975), 1975 CanLII 2075 (ON LA), 8 L.A.C. (2d) 158 (Ferguson), the board made the following statement [at pp. 160-1]:

A review of previous arbitration awards would appear to confirm a predominant view that the proper application of a call-back provision which contains a minimum guarantee for work performed when an employee is called in to work must be based on the fact that an employee has been subject to some degree of personal inconvenience or social dislocation. Also, there is recognized the factor of an employee having to incur additional transportation expense from having to make an extra trip to and from work. The majority of arbitrators have concluded that the reason why parties negotiate this type of clause is to recognize the fact that by being required to leave home or some other place and go to work at an abnormal time an employee finds some disruption or expense and, therefore, he is entitled to extra compensation. The call-back guarantee serves to insure that management, in receiving the benefit of having an employee called in to work at an irregular time, will be encouraged to make use of its rights only when the work is of sufficient importance to warrant the extra expenditure which must be incurred. It has also been stated that the essential character of a call-back is not merely that the employee is somewhere else at the time that he is asked to return to work, but rather that his work assignment actually begins at a time when it is necessary for him to make an extra trip to and from work.

The above quotation suggests a twofold purpose behind call-in pay provisions: first, to compensate employees for incurring the additional transportation expenses normally involved in being required to make an extra trip to and from work and, second, to place a restraint on management scheduling work at abnormal times by encouraging the company to evaluate whether the immediate performance of the work is sufficiently important to justify the added expense of the premium pay. (For a similar statement of purpose, see also Re Int'l Molders & Allied Workers Union, Local 49 and Webster Manufacturing (London) Ltd. (1971), 1971 CanLII 1902 (ON LA), 23 L.A.C. 37 (Weiler) at pp. 40-1.)

The board's decision in Re Hydro-Electric, supra, reflects the above-stated rationale by concluding that the grievor was not entitled to call-in pay because the extra work he was called upon to perform was immediately prior to his regular shift and did not, therefore, necessitate an extra trip to work.

21The Labatt Breweries Ontario (London), supra, decision cited by the Union also sets out a useful analysis of the distinction between overtime and a “call back” scenario. Arbitrator Shime in that case, while confirming the fact that an employee who volunteers to come in for a “call back” is not necessarily disentitled to be paid a “call back” premium, opines that a “call back” normally does not arise when the hours worked are contiguous to the start or end of the employee’s shift. Specifically, he notes:

First, there is the concept of an employee being called in or called back. This occurs when an employee returns to the work place at a time that differs from the start time or end time of the employee’s regular shift.

Additionally, elsewhere in the decision, Arbitrator Shime cites “the non-contiguous nature of the work” as a key factor arguing in favour of concluding that the relevant work opportunity constituted a “call back” scenario.

22It is not disputed that the grievor may have experienced some inconvenience associated with requiring to appear at work an hour early on February 8. That inconvenience, even if existed, is not necessarily analogous with the inconvenience and dislocation typically associated with having to make an additional trip to and from work due to being “called back to work”. At the end of the day, the fact that the grievor had indicated on HPRO that she was not available to work part shifts on February 8 is not a sufficient enough basis to transform the hour of overtime she voluntarily worked prior to the commencement of her shift that day as her being “called back to work” for the purposes of Article COR 9.1. Accordingly, the grievance is, hereby, dismissed.