GSB# 2021-1292

UNION# 2021-0719-0012

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Kerr)

Union

• and -

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

Employer

BEFORE

Brian P. Sheehan

Arbitrator

FOR THE UNION

Dan Sidsworth Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Nishal Nair Treasury Board Secretariat Employee Relations Advisor

HEARING DATE

May 18, 2022

Decision

1The Employer and the Union at the Kenora Jail 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 Kenora Jail.

3On June 28, 2021, the grievor noticed damage to her car after the end of her scheduled shift. Apparently, at the time, there was ongoing construction at the Jail in proximity to where employees parked their cars.

4The grievor immediately reported the damage to the Sergeant on Duty.

5On June 29, 2021, the grievor spoke to Staff Sergeant Herbacz by phone. Staff Sergeant Herbacz advised the grievor that she should complete an Occurrence Report with respect to the damage to her car. The grievor claims that she advised Staff Sergeant Herbacz that she would come into the institution shortly to complete the Occurrence Report since she was scheduled to be on a hospital escort for her night shift that evening. The grievor asserted that Sergeant Herbacz agreed with that course of action.

6Shortly thereafter, the grievor appeared at the Jail and had a discussion with Sergeant Heggie, who indicated that Staff Sergeant Herbacz was unavailable. The grievor advised Sergeant Heggie that she would complete her Occurrence Report as she had discussed with Staff Sergeant Herbacz.

7Upon completing her Occurrence Report, the grievor submitted a claim for Call Back Pay.

8The Call Back Pay provision of the collective agreement reads as follows:

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.

9Even if the version of the events set out by the grievor is entirely accepted, there is no basis to suggest she was entitled to Call Back Pay. It is arguable that completing an Occurrence Report with respect to damage done to an employee’s own car constitutes "work" performed on behalf of the Employer. More importantly, the facts fail to establish that the Employer insisted or directed the grievor to return to the Jail on June 29, 2021 in order to complete the Occurrence Report.

10Accordingly, the grievance is, hereby, dismissed.