GSB# 2023-00933

UNION# 2023-0290-0016

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Miller)

Union

• and -

The Crown in Right of Ontario (Ministry of Children, Community and Social Services)

Employer

BEFORE

Gail Misra

Arbitrator

FOR THE UNION

Gregg Gray Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Kelsey Iyonmana Treasury Board Secretariat Employee Relations Branch Labour Relations Intern

HEARING

November 29, 2023

Decision

1The parties have agreed to an expedited mediation-arbitration process to resolve grievances at the Roy McMurtry Youth Centre (“RMYC”) in Brampton. Although a formal protocol has not been finalized, the parties have agreed to attempt to settle matters at mediation and, if mediation is not successful, to refer appropriate cases to expedited arbitration. The parties specifically agree that the arbitrator can hear the matter under Article 22.16 of the collective agreement. This decision is issued in accordance with Article 22.16 of the collective agreement, so that it is without precedent or prejudice to any other matters between the parties, and is issued without detailed written reasons.

2Ja’red Miller is a classified Youth Services Officer at the RMYC. He has been employed since January 2010. On March 6, 2023 Mr. Miller filed a grievance claiming that the Employer should have paid him Call Back pay in accordance with Article COR 9.2 because he had been contacted outside of his regularly scheduled working hours on a matter of a non-urgent nature. By way of remedy the grievor is seeking four hours of pay at 1.5 times his regular rate of pay.

3The grievor had worked a 7 a.m. to 7 p.m. shift on February 14, 2023. His next scheduled shift was on February 17, 2023 from 7 a.m. to 7 p.m. In and around this period the grievor had been working with the Employer on an accommodation he was seeking as he had a restriction pursuant to which he was not supposed to work on weekends. That matter had been discussed on February 14^th, and Mr. Miller was waiting to hear if his accommodation would be approved.

4On February 15, 2023 the Staff Services Manager, Luciene Allen, called the grievor at home to advise him that his accommodation had been approved and that he would be scheduled accordingly. The grievor claims that the discussion with Ms. Allen took between 20 and 30 minutes, that during the discussion he had to go and find the documents regarding his restrictions, and that as such he should have been paid Call In pay. It is the Union’s position that this was a matter that could have been discussed with the grievor when he was back at work on February 17, 2023.

5In particular, the Union maintains that the grievor’s new schedule was to take effect on March 13, 2023, so there was no urgency to the matter. Furthermore, the Union asserts that had the grievor been informed of the accommodation at the workplace it would have been like any regular accommodation meeting at which the Union would also have been present. Given the length of the call, it should more properly have been a meeting on work time, and it was inappropriate for the Employer to conduct an accommodation meeting on the telephone on the grievor’s day off.

6According to the Employer the phone call was of about 15 minutes in duration. However, it notes that Ms. Allen only called the grievor in good faith to advise him that his accommodation request had been approved, and that he would be scheduled accordingly so should check his schedule. It notes that pursuant to Article COR 5 the Employer must post schedules at least fifteen days in advance of shifts, and Ms. Allen was alerting the grievor to look out for his changed schedule. It was the grievor who began to ask Ms. Allen questions about his accommodation and it was only as a result of his questions that the call took as long as it did.

7In any event, the Employer argues that the grievor’s situation does not fall within the parameters of Article COR 9.2, so the grievance should be dismissed as Mr. Miller was not entitled to call back pay.

8Article COR 9.2 states as follows:

Where an employee is contacted by the Employer outside the workplace prior to the starting time of their next scheduled shift, in circumstances where such contact is considered to be a “call back to work” but the employee is not required to physically attend at the workplace, the employee shall be paid a minimum of four (4) hours’ of pay at one and one-half (11/2) their basic hourly rate. The initial call and any subsequent calls during that same four hour period, will be treated as a single “call back to work” for pay purposes.

9Both the Employer and Union submitted jurisprudence in support of their arguments. While it is unnecessary to outline the specifics of the jurisprudence, I have not found the Union’s caselaw helpful as in both cases submitted the employee in question was required to perform some work-related tasks while they were off work on their personal time (e.g. an employee was told to check work emails regarding a mandatory staff meeting on the next work day or an employee was called at home about matters related to her work, and had to make further phone calls in order to address the request from the workplace) (GSB #2020-1968, OPSEU (Mcgaughey-Connolly) and Ministry of the Solicitor General, April 28, 2021, M. Nairn; Treasury Board and Seguin (Re), (1994) 34 C.L.A.S. 501, MM. Galipeau). In the case before me the Employer simply contacted the grievor to inform him as soon as possible following the accommodation meeting on February 14, 2023 that his accommodation had been granted. There is no dispute that Ms. Allen did not call the grievor to discuss any aspect of the work Mr. Miller performed.

10The Employer relied on a number of Grievance Settlement Board decisions regarding claims for Call Back pay in which it has found that a phone call to an employee while they are off work about the following did not amount to a “call back to work”: when an employee called in sick, the employer called the employee to request that they attend at a physician’s office to obtain a medical note before they returned to work (OPSEU (Hornbeck) and Ministry of Children and Youth Services, 2006 CanLII 31484 (ON GSB)(R. Devins); a short telephone discussion regarding a recent absence (OPSEU (White) and Ministry of Community Safety and Correctional Services, 2010 CanLII 81911 (ON GSB)(F. Briggs); a call to an employee to notify them to attend a meeting regarding a WDHP complaint (OPSEU and Ministry of Community Safety and Correctional Services, 2011 CanLII 86401 (ON GSB)(F. Briggs); a call to an employee to check if she had mistakenly taken some keys home with her (OPSEU and Ministry of Community Safety and Correctional Services, 2012 CanLII 34669 (ON GSB)(F. Briggs). In each of these cases the Board found that these telephone discussions were not “work”, and therefore dismissed the grievances.

11The difference between the Employer’s jurisprudence and what is before me is the apparent length of the telephone call between Mr. Miller and Ms. Allen. For the purposes of this case I accept that the call may well have been between 15 and 20 minutes long. However, even if the call had been 30 minutes long, as the grievor alleges it may have been, that does not change my view. Ultimately, Ms. Allen only called the grievor to tell him that his accommodation had been accepted and that he should look for that change in his schedule. It was at the grievor’s behest that the conversation went on for the length of time that it did. The grievor could have conducted this conversation with the Employer when he was back at work on his next shift. As well, the conversation about Mr. Miller’s accommodation questions were not in the nature of “work” and as such did not qualify for Call Back pay pursuant to the terms of the collective agreement.

12For all of the above reasons this grievance is dismissed.