GSB# 2018-1955
UNION# 2018-0678-0010
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Guitard)
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
Jennifer Charlton Treasury Board Secretariat Employee Relations Advisor
HEARING DATE
June 24, 2021
DECISION
1The Employer and the Union at the Algoma Treatment and Remand Centre agreed to participate in the Expedited Mediation/Arbitration process in accordance with the negotiated Protocol. It is not necessary to reproduce the entire Protocol. Suffice to say, that the parties have agreed to a True Mediation/Arbitration process wherein each party provides the Arbitrator with their submissions setting out the facts and the authorities they respectively will rely upon. This decision is issued in accordance with the Protocol and with Article 22.16 of the collective agreement, and, as such, it is without prejudice or precedent.
2The grievor is employed as a Correctional Officer at the Algoma Treatment and Remand Centre.
3Since 2006, the parties have adopted and abided by a Provincial Overtime Protocol (the “Protocol”) with respect to the assignment of overtime opportunities at the various correctional facilities operated by the Employer across the province. The relevant provisions of the Protocol that were in place at the time of this dispute are as follows:
Overtime calls will be made on a sequential basis. The first person called will be the most senior person on the overtime list having the least number of overtime opportunity hours.
The manager will allow the phone to ring no less than five (5) times before moving to the next employee on the list. If an employee has message capability, the manager will leave a message indicating that an overtime opportunity is available. If the manager is aware that an employee is at work when the overtime offer is made, the manager will page/notify the employee at work rather than calling the contact number.
Where the manager leaves a message or a page, there will be a five (5) minute “call-back” time allotted prior to moving to the next employee on the list. Overtime hours will be assigned to the employee(s) who responds first.
If another overtime opportunity arises that day, an employee will be called again. If the calls are at least two hours apart and no contact is made, the employee will not be called again for overtime, as part of the Protocol, in that calendar day.
Once a person has accepted or declined an overtime opportunity, no further overtime opportunities will be offered in that calendar day under the Protocol.
4The facts pertaining to this grievance are not in conflict as the dispute between the parties relates to the appropriate interpretation to be given to the wording of paragraph 8 of the Protocol.
5The grievor was called by the scheduling manager on June 30, 2018, at 5:22 am, with respect to an overtime opportunity for a T7 shift on that day. The grievor did not answer that call, and a voicemail message was left. At 6:03 am, the grievor was called with respect to an overtime opportunity for an E7 shift for that day. Again, the grievor failed to answer the call, and a message was left. Later that morning, at 8:14 am, the grievor was called for a different overtime opportunity (an 11 am to 9 pm shift) also for June 30. Again, a message was left as the grievor did not answer. Later at 2 pm, the grievor was bypassed for another overtime opportunity for June 30 as pursuant to paragraph 8 of the Protocol, he had not responded to two calls separated by two hours on that day. The Union accepts that the grievor was bypassed correctly with respect to that particular overtime opportunity.
6The point of contention between the parties relates to a subsequent canvassing for overtime that took place later on June 30. In particular, shortly after 9 pm, the scheduling manager started to make calls for an overtime opportunity for a T7 shift for July 1. The grievor was again bypassed with respect to that opportunity based on the Employer’s interpretation of paragraph 8 of the Protocol; as in, with the grievor being non-responsive to two calls separated by two hours on June 30, he was no longer entitled to be contacted about overtime opportunities that were being canvassed on June 30. The Union asserted that the grievor should not have been bypassed because the shift in question was for a different day than the previous overtures made on June 30.
7It is the Union’s position that the phrase “in that calendar day” as set out in paragraph 8 of the Protocol refers to the date of the overtime opportunity as opposed to the day that the Employer is canvassing overtime opportunities. Accordingly, since the grievor had not yet been called on June 30 for overtime opportunities that were arising “in that calendar day” of July 1, the Employer was obligated to call him with respect to any such opportunity, notwithstanding the language of Paragraph 8.
8The Union accepts that if on June 30, the Employer had called the grievor with respect to overtime opportunities for both June 30 and July 1, and the grievor did not respond to two of those calls, and they were placed two hours apart, the Employer would not have been under any further obligation to call him with respect to overtime opportunities for June 30 or July 1.
9The Union further argued that its interpretation of paragraph 8 is consistent with the interpretation of the reference to “in that calendar day” in paragraph 10. In this regard, the Union asserted that if “in that calendar day” referred to in paragraph 10, means the actual date to be worked as overtime, it cannot, at the same time, be interpreted to mean the day that the overtime is canvassed as is suggested by the Employer in its interpretation of “in that calendar day” referred to in paragraph 8.
10The Employer asserted that the wording of paragraph 8 should be given its plain and straightforward meaning. Specifically, it was submitted that the language of the provision is clear in that if the employee does not respond to two calls for overtime opportunities that are placed two hours apart “in that calendar day”, the Employer is not obligated to call the employee again on that calendar day with respect to any other overtime opportunities.
11It was further suggested that the Union’s interpretation would lead to the scheduling manager being required to make numerous calls to an employee on a calendar day, notwithstanding the fact that the employee has not responded to two overtures separated by two hours on that particular day.
12It is my view that while the pertinent wording of the Protocol is not necessarily a model of clarity; on balance, the interpretation of paragraph 8 of the Protocol that was advanced by the Employer is to be preferred. That conclusion is guided by the cardinal rules of interpretation applicable with respect to discerning the intent of the parties. Specifically, the provision in question is to be interpreted in accord with the plain meaning of the wording utilized and in the context of the document as a whole and its purpose.
13In terms of context, the starting point is the requirement set out in paragraph 4 of the Protocol, which requires the Employer to make overtime calls on a sequential basis; giving rise to the reality that an employee, on any given day, may be called a number of times with respect to overtime opportunities. In respect to such calls, Paragraph 7 provides that if the employee fails to respond to a particular message or page detailing an overtime opportunity, the scheduling manager must wait five minutes (three minutes under the current Protocol) before moving on to the next employee on the list.
14The opening sentence of paragraph 8 then sets out the general rule that “If another overtime opportunity arises that day”, the employee who failed to respond to a call initially will be called again. The reference to “that day”, in my view, clearly refers to the day upon which the overtime opportunities are being canvassed. The second sentence of the paragraph then sets out a qualifying exception relieving the Employer of the obligation to call the employee with further overtime opportunities if no contact is made with respect to two calls separated by two hours. Significantly, that sentence closes with the phrase “the employee will not be called again for overtime … in that calendar day”. The reference to that calendar day is therefore plainly referencing the day being referred to at the outset of the paragraph—the day the Employer is canvassing employees for overtime opportunities.
15The Employer’s interpretation is also in keeping with the underlying purpose of paragraph 8, which is to limit the number of calls that the Employer may be required to make pursuant to the provisions of the Protocol. That is, the parties sought to address the potential requirement to call an unresponsive employee numerous times. In particular, the parties expressly agreed that failing to respond to two calls separated by two hours was sufficient evidence to suggest that the employee was not available or potentially not interested in responding to overtime opportunity overtures offered on that day.
16As a final point, the Union’s interpretation could, in my view, lead to anomalous and incongruous results. In this regard, consider if, in the case at hand, there was an overtime opportunity that arose for June 30 that the Employer canvased at 8 am, which the grievor failed to respond to. Then at 8:05 am, a distinct overtime opportunity arose for July 1, which again the grievor failed to respond to. If at 10:01 am the Employer called the grievor again for a June 30 overtime opportunity and there was no response, it has been accepted that there would be no further obligation to contact the grievor for June 30 overtime opportunities. However, according to the Union’s interpretation, if just a few minutes later at 10:05 am another overtime opportunity happened to arise for July 1, the Employer would still be required to call him with respect to that opportunity, notwithstanding that the grievor had not responded to two overtime opportunities placed two hours apart as contemplated under paragraph 8. Taking the example further, assume the Union’s interpretation is accepted and the Employer was obligated to call the grievor about that July 1 opportunity, but again he failed to respond—should the Employer be required to call the grievor if an overtime opportunity were to arise ten minutes later for July 2 as is contemplated by the Union? Such results would be seemingly entirely inconsistent with the underlying purpose of the agreed-to exception limiting the potential requirement of the Employer to call an unresponsive employee numerous times.
17In the light of the above reasoning, the grievance is, hereby, dismissed.
Dated at Toronto, Ontario, this 23rd day of July, 2021.