GSB# 2020-2616
UNION#2021-0205-0001
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Coutlee)
Union
- and -
The Crown in Right of Ontario (Ministry of Labour, Training and Skills Development)
Employer
BEFORE
Bram Herlich
Arbitrator
FOR THE UNION
Seung Chi Ontario Public Service Employees Union Grievance Officer
FOR THE EMPLOYER HEARING DATE
Joohyung Lee Treasury Board Secretariat Legal Services Branch Counsel March 29, 2022
Decision
1The grievor is an Occupational Health and Safety Inspector. As such, he regularly attends third party workplaces to perform inspections. There was no dispute that while in attendance at these third party workplaces, those workplaces become his as well, certainly for the purposes of the instant matter.
2November 11, 2020 was a holiday under the collective agreement. The grievor was on standby that day. He was contacted five separate times by the employer with respect to possibly attending at work and did attend in four of the five cases.
3Article UN 9 of the collective agreement is titled: “Call Back”. UN 9.1 provides:
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.
4A number of possible issues arose from the contacts between the grievor and the employer on November 11, 2020. For the purposes of the instant decision, however, the parties have asked that I restrict my inquiry to a single issue: how many “call backs” were there on that day, or, more specifically, how many times were the call back minimum pay guarantees triggered. There is no currently relevant dispute with respect to the first and last of the five contacts. The dispute relates to the second, third and fourth, which resulted in the grievor’s attendance at three different workplaces. The union claims that each of these was a separate call back; the employer asserts that the three combined constitute but a single call back. As a call back generates an entitlement to a guaranteed minimum of four hours pay at premium rates, the question before me will determine whether that entitlement was triggered one, two or three times in the three contacts under review.
5The hearing proceeded under the provisions of Article 22.16 of the collective agreement, often referred to as “medarb”. Article 22.16.7 dictates that decisions reached through this process “shall have no precedential value unless the parties agree otherwise”. The parties have not agreed otherwise.
6The parties filed an Agreed Statement of Facts. I have reproduced these (but not the Appendices referred to therein) as an Appendix to this award. The facts are detailed and complete. However, for our current purposes, the critical facts relate to the timing and location related to each of the three calls in question (which I shall continue to refer to as calls #2, #3 and #4):
Call #2 was to a Long Term Care facility and concerned Covid safety measures.
Call #3 was to a site where there was a report regarding work being performed by hydro workers. The grievor arrived at the reported site, found no one working there, and left.
Call #4 was to a Drive-In Theater regarding safety concerns related to an assembly that was about to begin for an award ceremony.
7The relative timing of each of the calls can be seen graphically in the following table:
TIME
Call 2
Call 3
Call 4
12 Noon
CBA 12:36PM
1:00 PM
ARR 1:08PM
N 1:15 PM
CBA 1:29PM
2:00 PM
DEP 2:18PM
N 2:18 PM
ARR 2:50 PM
DEP 2:50 PM
CBA 2:55 PM
3:00 PM
ARR 3:30 PM
4:00 PM
DEP 4:47 PM
KEY
N = notification (if any)
CBA = call back assignment
ARR = arrival at call back work location
DEP = departure
Position of the union
8In its submissions, the union highlighted the three ingredients of the instant call back provision. To qualify for the guaranteed minimum compensation, an employee must have: a) left work; b) been called back to work; c) prior to her next scheduled shift. The union asserts the dispute in the instant case centers on the first point.
9We were also reminded that arbitrators generally, and this Board in particular, have identified the dual purpose of call back pay: to compensate employees for the inconvenience and disruption associated with a call back and to discourage employers from calling employees back to work, except when absolutely necessary (OPSEU (Bell) v Ontario (Ministry of Community and Social Services, GSB # 116/78 (Swinton)).
10Perhaps the case most relevant to the issues before me is OPSEU (Elliot) v Ontario (Ministry of Labour) GSB # 1282-97 (Briggs). In this case, the employee left work and was subsequently called back twice (though not required to attend at a workplace) on that same day. The call backs and the work associated with them (performed from his home) were all completed within a single four hour period. However, there was a clear gap (approximately half an hour) between the completion of the work associated with the first call back and the commencement of the second. The Board had little difficulty concluding that the call back minimum pay guarantee had therefore been triggered twice.
11The union takes matters a little bit further. Before me, its primary position was that the facts warranted the conclusion that there were three separate call backs, each triggering the pay guarantees. This, despite the fact that there was no temporal gap between the conclusion of #2 and start of #3 as there was between #3 and #4.
12The union pointed to the disruption of the grievor’s expectation that upon completing the work associated with his call back, he would be entitled to return home. Since that expectation was twice dashed, in circumstances which necessitated attendance at 2 additional work locations, the extra call back pay minima ought to be applied accordingly. Thus, the union argued that I should find that, as a result of calls #2, #3 and #4, the minimum guarantee of four hours of overtime rates were triggered three times, or, alternatively, twice, if calls #2 and #3 triggered the premium entitlement only once.
Position of the employer
13The employer advanced the view that the calls #3 and #4 were both merely extensions of call #2 and therefore the minimum guarantee was invoked but a single time.
14Ontario Steel Products Co. v. U.A.W., Local 127, (1973), 3 L.A.C. (2d) 161 (Hinnegan) provides some support for the employer’s position. In that case the grievor was called in to work to repair some machinery. He completed the assignment. However, on his way but prior to punching out, he was directed by his foremen to perform another repair, which he did. The grievance claimed double entitlement to the minimum pay guarantee. The arbitrator dismissed the union’s claim that there had, effectively, been two distinct “call-ins”. The second assignment was not a call-in at all, because the grievor was still at work and in the workplace at the time. In the simple and clear words of the arbitrator (at para. 5):
Therefore, based on the obvious purpose of call-in pay to compensate an employee for the inconvenience of having to return to the plant outside of his regular hours, it cannot be said that the second job constituted a "call-in". In order to be "called in", it must logically follow that he cannot be already in.
15Other cases pointed to by the employer also demonstrate that a call back is typically not found to have happened in circumstances where an employee is actively at work (Reliance Comfort Limited Partnership and Unifor, Local 1999 (Call Out Pay), 2015 CarswellOnt 13289, [2015] O.L.A.A. No. 326, 124 C.L.A.S. 124) or when an employee arrives on site early but has not yet commenced their shift (I.B.E.W., Local 636 v. Etobicoke Hydro-Electric Commission (1967), 1967 CanLII 1020 (ON LA), CarswellOnt 749, 18 L.A.C. 219, (Arrell); OPSEU (Grant) v Ontario (Ministry of Correctional Services), GSB 197/83 (Kennedy)) or even when an employee has completed their shift but not yet made it out of the company parking lot (Pulp, Sulphite & Paper Mill Workers, Local 870 v. Canadian Johns-Manville Co. (1961) CarswellOnt 237, 11 L.A.C. 327 (Hanrahan)).
16The employer also asserted that once it called the grievor back to work it was entitled to schedule him for up to four hours of work, even apart from or in addition to the task(s) which first necessitated the call back, without attracting any further minimum pay guarantees.
Decision
17In my view there are aspects of each of the parties’ submissions which must be vindicated.
18I start, however, with the employer’s last assertion regarding its ability to demand or require four hours work on a call back, even if the work that necessitated the call back has been completed in far less time. I start here, however, only for the purpose of noting that I do not find it necessary to address the issue. The union did not assert that the employer had acted in bad faith in assigning the additional work in this case. And neither did I understand the employer to be suggesting that its asserted ability extended to circumstances where all of the work had been completed, the employee had left the workplace, only to subsequently be called back (perhaps even hours) later.
19The present case turns, as both parties acknowledged at different points in their submissions, on a simple question: had the grievor left work at the time of the third and fourth call backs or, more specifically, at the time that he was assigned additional tasks by the employer. In my view the answer is abundantly clear in the case of #3: No. And in the case of #4, it is (perhaps not quite) equally clear: Yes. And it may be that, in these two different contexts, it is the absence of cases cited that is significant for our current purposes.
The transition from call #3 to call #4
20First, in relation to the transition from #3 to #4 there were no cases cited before me where successive call backs were found to constitute a single callback in circumstances where the employee had completed the assigned work of the first and left their work location prior to being contacted the second time. This is what happened in the transition from #3 to #4. I am satisfied, therefore, that these were two separate call back instances each separately triggering the call back pay guarantees.
21In coming to this conclusion, I have rejected the employer’s urging that #4 ought to be viewed as having commenced at 2:18PM (when the grievor was notified to contact the On-Call Manager) rather than at 2:55PM when that contact was made. In my view, the call back did not, could not crystallize until the grievor was assigned to attend at work. I note that in Call 5 (not otherwise relevant or reproduced here), the contact between the grievor and the On-Call Manager resulted in a determination that the grievor not attend at work. It is difficult to see how a call back under Article 9.1 can be said to commence prior to a direction to the employee to attend at a specifically identified work location.
22Neither was I moved by the employer’s suggestion that the 2:55PM time, a mere five minutes after the completion of #3 ought in some fashion to permit the invocation and application of the principle of de minimus. In this regard, I note the employer’s acknowledgement that it was not asserting any bad faith on the grievor’s part, in making his call to the On-call Manager at 2:55PM rather than at 2:50PM or earlier. The relevant times are simply what they are as reflected in the parties’ agreed facts. Had the grievor’s contact with his On-Call Manager occurred at 2:50PM or earlier, the result here might well have been different. Had the grievor in the Canadian John’s Manville case, supra, been accosted to return to work two feet out of the parking lot rather than just inside it, the result in that case may also have been different. Bright lines provide valuable certainty, admittedly sometimes at the expense of complete and absolute fairness at the margins.
The transition from call #2 to call #3
23No cases were cited where two distinct and separate call backs were found to have occurred in circumstances where the second work assignment was made prior to the employee departing the workplace, having completed the first assignment. When the grievor was assigned the work associated with call #3, he was still onsite at the work location of call #2 and had not yet completed the work assigned with that call. In these circumstances, I am satisfied that, in relation to calls #2 and #3 the guaranteed minimum hours mandated by Article 9.2 were triggered only once. The union pointed to the inconvenience and disruption the grievor would have suffered on the nullification of his expectation that he could leave work and return home with the completion of the initial task assigned. While there is undoubtedly some force of truth to the assertion, inconvenience alone is not sufficient. There may be other consequences or collective agreement protections that will come into play, but repeated extensions of or additions to a work assignment, while the employee is still at work, all made prior to the completion of the last assigned task, will not amount to a call back.
24Having regard to all of the foregoing I am satisfied that calls #2 and #3 triggered a single instance of the guaranteed minimum pay provisions of Article 9.1. Call #4, however, generated another instance of that guarantee.
25I trust the parties will be able to resolve this matter in view of my finding. I will remain seized, however, should the parties encounter any difficulties in implementing the terms of my ruling. I also remain seized with respect to any other issues arising out of this grievance that were not otherwise resolved by my ruling or by the agreement of the parties.
Dated at Toronto, Ontario this 14th day of April 2022.
APPENDIX
Peter Coutlee, GSB No 2020-2616/OPSEU No 2021-0205-0001
Agreed Statement of Facts
Peter Coutlee (hereinafter known as “the Grievor”) is currently a permanent OPSEU‐ represented Occupational Health and Safety Inspector employed by the Ministry of Labour, Training, and Development. He has worked this position since April 15, 2005.
In this position, the Grievor works a compressed work week (“CWW”) schedule on a two week cycle. Over the two week cycle, the Grievor works seven 8 hour days, and works two 8.25 hour days.
As an Occupational Health and Safety Inspector, the Grievor is required to attend various workplaces for inspections and investigations.
The Grievor filed a Grievance on January 7, 2021, alleging violations of Articles UN8, UN9, UN10, UN11 and UN13 of the OPSEU Collective Agreement relating to the form and amount of compensation he was entitled to receive for being called back to work on November 11, 2020, Remembrance Day (Appendix A).
Remembrance Day, November 11, is a holiday included under Article 47 of the OPSEU Collective Agreement.
The Grievor was on call the week of November 6 to November 13, 2020.
The Grievor was in fact called back to work on November 11, 2020. The Grievor was called back on this day as described below:
Call 1
Call 1 was about a worker losing consciousness at a workplace.
The Grievor, while at home, was paged for Call 1 around 2:50 am.
The Grievor called back the Spills Action Centre (SAC) around 2:56 am. The Grievor attended the workplace, Stackpole International, 1325 Cormorant Road, Hamilton.
The Grievor completed his inspection around 6:02 am.
After completion of Call 1, the Grievor went home.
The Grievor sent an email to the On‐Call Manager, Bernie Marcoux regarding Call
1 around 9:17 a.m
The SAC report with respect to this call is attached as Appendix B
Call 2
Call 2 was about a complaint regarding mask protocol for workers at a workplace.
The Grievor, while at home, was called out for Call 2 around 12:36 pm.
The Grievor arrived at Baywoods Place Long Term Care Home, 330 Main St E, Hamilton for Call 2 around 1:08 pm.
The Grievor completed the site inspection around 2:18 pm.
The Grievor asked the worker and management to review the measures and procedures for long term care home. The Grievor also provided information and instructions regarding point of care risk assessment, social distancing, screening, cleaning, hand hygiene and use, care and limitations of personal protective equipment and masks.
The Grievor left Baywoods Place Long Term Care Home.
The SAC report with respect to this call is attached as Appendix C.
Call 3
Call 3 was about unsafe Hydro One workers.
The Grievor, while still dealing with Call 2, was paged for Call 3 around 1:15 pm.
The Grievor called back the Spills Action Center around 1:29 pm regarding Call 3 and was provided relevant information.
The Grievor arrived at the identified workplace "Breezy Corners", a restaurant located at 1480 Hwy 6 N, Hamilton for Call 3 around 2:50 pm.
The distance between 330 Main St E, Hamilton (Baywoods Place Long Term Care Home) and 1480 Hwy 6 N, Hamilton (Breeze Corners) was about 20 km.
The Grievor looked for Hydro One workers working in the area.
The Grievor could not locate the crew at the restaurant, the adjoining areas on Carlisle Road or hydro lines adjacent to the highway.
The Grievor left "Breezy Corners".
The SAC report with respect to this call is attached as Appendix D.
Call 4
Call 4 was about concerns regarding an award ceremony.
The Grievor, while on the way to deal with Call 3, was telephoned by the Spills Action Center to contact the On‐Call Manager about a possible Call 4 around 2:18 pm.
The Grievor stopped at a gas station near "Breezy Corners" and contacted the On‐Call Manager, Marcoux, about Call 4 around 2:55 pm.
After a 12 minute discussion with Marcoux, it was decided that the Grievor should attend at The 5 Drive‐In Theatre, 2332 Ninth Line, Oakville and conduct an inspection.
The Grievor arrived at The 5 Drive‐In Theatre in Oakville for Call 4 around 3:30 pm.
The distance between 1480 Hwy 6 N, Hamilton (Breeze Corners) and 2332 Ninth Line, Oakville (The 5 Drive‐In Theatre) was about 47 km.
When he arrived, he saw a large gathering was about to be assembled for a Bollywood award ceremony.
The Grievor conducted an audit and determined that majority of items for ROA and implementation of the Construction/Industrial Regulations seemed to be in compliance. He discussed the ROA and OHSA requirements as well as infection prevention of COVID‐19 for the venue and snack bar.
The inspection was completed around 4:47 pm.
After completing Call 4, the Grievor left The 5 Drive‐In Theatre.
The SAC report with respect to this call is attached as Appendix E.
Call 5
The Grievor, while still dealing with Call 4, received a call regarding Call 5 around
4:47 pm.
The Grievor discussed the call with the On‐Call Manager Marcoux
It Was decided that the Grievor would not attend Call 5 as it would get dark by the time the Grievor would be able to arrive at the workplace located 638 Westheights Drive, Kitchener.
The Grievor was not required to attend the workplace for Call 5.
The SAC report with respect to this call is attached as Appendix F.
The Grievor arrived at home around 6:45 pm.
The Grievor sent a field visit report for Call 4 to Todd Sullivan, Regional Manager, Premier Theatres, by email around 7:56 p.m.
10.The Grievor sent a field visit report for Call 2 to Bobbi Levesque, Worker Rep., JHSC at Baywoods Place Long Term Care Home by email around 8:34 p.m.
11.The Grievor sent an email to the On‐Call Manager, Marcoux regarding Call 3 around 8:38 p.m.
12.The Grievor sent an email to the On‐Call Manager, Marcoux regarding Call 4 around 8:45 p.m.
13.The Grievor sent an email to the On‐Call Manager, Marcoux regarding Call 2 around 8:51 p.m.