GSB# 2020-1968

UNION# 2020-0228-0029

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Mcgaughey-Connolly)

Union

• and -

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

Employer

BEFORE

Marilyn A. Nairn

Arbitrator

FOR THE UNION

Emily Cumbaa Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Katie Spizarsky Treasury Board Secretariat Employee Relations Advisor

HEARING

April 27, 2021

DECISION

1This grievance proceeded before the Board pursuant to Article 22.16 of the collective agreement and, in accordance with Article 22.16.7, this decision has no precedential value. The grievance claims call-back pay pursuant to Article UN 9.2 of the collective agreement.

2The Grievor is permanently employed as a full-time Client Services Representative at the Brampton Courthouse. At the relevant time, and because of the COVID-19 pandemic, the grievor was working on a rotational schedule. Some days she would work from home and other days she would attend at the courthouse to work.

3On June 1, 2020 a memo issued indicating Monday, July 6, 2020 as the start date for the gradual reopening of the courts. On June 25, 2020 another memo outlined the anticipated reopening. That memo attached the latest “Guidebook, Covid-19: Recommended Precautionary Measures for Resuming Court Operations” and it was recommended that staff also review prepared video footage of the precautionary measures put in place.

4On Friday, July 3, 2020 at 11:59am an email, marked high priority, was sent to court staff using their work email. It provided a summary of key activities in relation to the anticipated opening of the courts. A revised Guidebook, an Employee Handbook, and a description and links to a court Entrance Screening Tool were included. The grievor was on vacation on July 3, 2020 and would not normally be expected to review work emails while on vacation. Her next scheduled shift was Monday, July 6, 2020.

5Another email, marked high priority, was sent that day at 6:10pm to court staff via their work emails. It gave notice of a mandatory staff meeting by teleconference scheduled for Monday July 6, 2020. The Employee Handbook was attached. The email stated, “we will be going over the attached handbook”. Staff working from home were given the option of attending the meeting at either 8:30am or 11:15am and were advised that they could adjust their timelines provided they attended one of those meetings.

6At 7:07pm on July 3, 2020, the grievor was sent a group text on her personal phone, from her supervisor, further confirming the mandatory meeting on Monday and noting that the information necessary to access the teleconference could be found in the earlier email. This text was the first indication to the grievor of the Monday meeting and it caused her to access her work email to review the earlier emails. That text again noted that staff must attend one of two scheduled meetings, either at 8:30am or at 11:15am.

7At 11:12pm on July 3, 2020 an email marked high priority was sent to the personal email addresses of court staff, including the grievor. (Any disclosure of personal email addresses and/or phone numbers is not relevant to the issue of call back.) The subject line of that email was “Screening to enter the workplace – keep this email” and it drew staff’s attention to page 24 of the handbook “sent to you for discussion in our meeting”.

8The Employee Handbook was first distributed on July 3, 2020 in the morning email. Although very like the Guidebook, one would have to review both in order to appreciate their similarity. Whereas others likely had the opportunity to review that email (and perhaps the attachments) during work hours on July 3, the grievor did not.

9The grievor reviewed the attached materials on Saturday, July 4, 2020. On Monday, July 6, 2020 she attended work from home during her regular working hours, including attending the 8:30am staff meeting.

10The grievor felt that reviewing the materials prior to the meeting was required and/or expected of her by the Employer, given the urgency and content of the emails and text. She felt obligated to perform that work prior to the meeting, as she had been advised that it would be discussed at the meeting. The Employer indicated that, other than being apprised of the meeting, the communications required nothing of staff, and that there was no requirement that work be performed. However, given the content and distribution of the emails, the grievor’s conclusion that she was expected to review the handbook prior to any discussion at a meeting was not unreasonable.

11The Union claimed that the receipt and review of the emails on July 3, 2020 constituted work and amounted to a call back. Further, the Union claimed a second call back for the work that was performed on the Saturday prior to the grievor’s next scheduled shift. It claimed a total of 8 hours pay at time and one-half the grievor’s regular hourly rate. The Employer argued that there had been no requirement or direction to perform work prior to the next scheduled shift, noting too that the screening information was not imminently necessary as the grievor was not attending at the workplace on July 6. The grievor would not have been expected to check work emails on July 3, 2020 as she was on vacation, and simply contacting an employee to advise them of a scheduled meeting on the next working day cannot be considered as requiring work, argued the Employer.

12The call back provision requires that an employee be contacted outside the workplace prior to the start time of their next scheduled shift. Those criteria have been met here. However, that contact must also be considered to be a call back “to work” in circumstances where the employee is not being required to attend at the workplace. Call-back is payable, not for the actual amount of work performed, but for the inconvenience of having one’s time off from work disrupted.

13The term “work” is generally given a broad meaning and would certainly include review of the materials attached to the emails sent to the grievor. However, even assuming that a review of the handbook was expected or required by the Employer prior to the meeting, there was no requirement that it be done outside of regular working hours. It could have been completed during work time on the Monday, had the grievor attended the 11:15am meeting rather than the 8:30am meeting, an option made available to her by the Employer. There was no suggestion that she could not reasonably have constructed her work day accordingly.

14I am not persuaded that contact that simply informs an employee of a meeting on their next scheduled work day amounts to a call back “to work”, prior to their next scheduled shift. The employee is simply receiving limited information, and it would be unreasonable to characterize that as work being performed, giving rise to the inconvenience triggering call back pay.

15However, the text sent to the grievor’s personal phone advises of the email sent to her work address by another supervisor about the meeting. It would be reasonable to assume that, having received the text, the grievor would also review the 6:10pm email to obtain the full meeting information. The grievor would, of necessity, open her work email account, where she would see, for the first time, both the 11:59am and the 6:10pm emails concerning the reopening of the courts (and perhaps other emails received at work that day). She was also sent the 11:12pm email to her personal email account. Communications sent to a personal account, whether by phone or email, give rise to an expectation that they will be received and reviewed on one’s personal time. Taken together, it was not unreasonable for the grievor to have concluded that the Employer expected her to review those related communications in order to determine what, if any, further action was required of her prior to her next scheduled shift. That review, however limited, constitutes work.

16There was no suggestion that the actual receipt and review of the emails on July 3, 2020 occurred over a period greater than four hours.

17In the result, I find that the grievor is entitled to be paid call back pay as a result of being called back to work on July 3, 2020 in order to receive and review those communications from the Employer. That is an amount of four hours pay at time and one-half the grievor’s regular hourly rate. The review of materials on July 4, 2020 could have been done during working hours, and I decline to find that it constitutes a call back in the circumstances here.

18Having regard to the above, I hereby direct the Employer to pay to the grievor an amount of four hours pay at time and one-half her July 2020 hourly rate. I will remain seized should there be any issues arising from the implementation of this decision.