GSB# 2020-1933

Union# 2020-0623-0005

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Jackson)

Union

• and -

The Crown in Right of Ontario (Ministry of Natural Resources and Forestry)

Employer

BEFORE

Dale Hewat

Arbitrator

FOR THE UNION

Alex Zamfir Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Erika Montisano Treasury Board Secretariat Legal Services Branch Counsel

HEARING

February 2, April 28, September 19, 2022, and March 8, 2023

Decision

1This case involves a grievance, about whether certain duties performed by the Grievor, after the end of various shifts scheduled between August 3 and October 12, 2020, during the 2020 active fire season, accrued compensating time off or overtime in accordance with Articles UN 8.71, UN 13.7, and UN 8.75 of the Collective Agreement. The specific dates in question involve work performed on August 3, 5, 13, 14, 15, 17, September 16 and October 12, 2020.

2The Grievor is employed in a Schedule 6 position, in the classification of Resource Technician, and holds the permanent position of Fire Response Specialist. During the active fire season, which typically falls between April 1st and October 31st each year, the Grievor fulfills the function of a Regional Duty Officer (“RDO”) in the Regional Emergency Operations Centre (“REOC”). Within Ontario there are two REOC centres; one in Sudbury and one in Dryden. Both REOCS are governed by the Provincial Duty Officer who works at the Ministry Emergency Operations Centre (“MEOC”).

3While the facts in this case are not in dispute, the interpretation of the functions that the Grievor performed is disputed requiring a decision of whether the functions were fire related or not. The Employer is of the view that all of the functions performed by the Grievor on the days in question were fire related deserving of overtime payments. The Union maintains that, other than work done on August 14, 2020, the functions performed by the Grievor were not fire related, and therefore, should have been accrued as compensating time off.

4Having considered the thorough testimony of all of the witnesses and Counsels’ detailed arguments and analysis, I have determined that the functions performed by the Grievor on the days in question were fire related work and therefore compensable as overtime hours. I have reached this conclusion on the basis that the concept of fire fighting or related duties encompasses a broader scope than simply performing duties only in response to an existing fire that requires active suppression. As a result, I have decided that all of the functions that the Grievor performed directly stemmed from various incidents of fire or reports of fire activity, and therefore, were deserving of overtime compensation under UN 8.7.5.

Applicable Collective Agreement Sections

5Overtime

UN 8.7.1

Effective August 15, 2005 employees in Schedule 6 who perform authorized work in excess of 7.25 hours on a regularly scheduled work day shall receive:

(a) compensating leave of one (1) hour for each hour worked between 36.25 and 44 hours per work week, in respect of the total hours worked during the week on regularly scheduled work days; and

(b) compensating leave of one and one-half (1.5) hours for each hour worked in excess of 44 hours per work week, in respect of the total hours worked during the week on regularly scheduled work days.

(c) The compensating leave shall be taken at a time mutually agreed upon. Failing agreement, the ministry shall reasonably determine the time of the compensating leave.

UN 8.7.4 Effective August 15, 2005 employees who are in classifications assigned to Schedule 6 and who are required to work on a day off shall receive compensating leave of one and one-half (1.5) hours for each hour worked.

UN 8.7.5

Notwithstanding Article UN 8.7.1 and Article UN 13.7 (Holiday Payment), employees who are in classifications assigned to Schedule 6 and who are assigned to forest fire fighting or related duties, shall be paid one and one half (1½) times the employee’s basic hourly rate, to be calculated on the basis of thirty-six and one-quarter (36¼) hours per week, for all such work after eight (8) hours in a 24-hour period.

6Holiday Payment

UN13.7

Notwithstanding anything in Article UN13, employees who are in classifications assigned to schedule 6 and who are authorized by the Employer to work on a holiday included in Article 47 (Holidays) of the Central Agreement shall receive compensating leave of one and one-half (1.5) hours for each hour worked.

The Facts

7During the active fire season, the Grievor participates in a Compressed Work Week program in which he is scheduled 10-hour days for 7 consecutive days followed by 4 days off with a 2.5-hour shift overlap with the other RDO at the REOC. Longer hours of work are required during the active fire season, in part, because many fires start burning late in the afternoon or early evening. Like all other Schedule 6 staff, the Grievor fills out a time-sheet called a data assistant chart, for each day of work and indicates whether any overtime hours or the last 2 hours on a statutory holiday are fire related or not. The data assistant chart is reviewed by management before finalizing the payment. If the hours are fire related, they are labelled FIR indicating that an overtime payment is due. If the hours are not fire related, they are labelled OV2 indicating that compensating time off is due. In this case, the Grievor filled out his time-sheets for the days in question noting that all of the hours were not fire related. Initially the time sheets were approved by the Grievor’s manager, but were then changed to FIR because management determined that the time sheets had been filled out in error. The Grievor brought this grievance after his time sheets were changed claiming that the duties he performed on the days in question were not fire related and therefore deserving of compensating time off.

8As an RDO, the Grievor fulfills a number of response functions as outlined in the Annual Fire and Emergency Response Operations plan with the overall responsibility of developing the Strategic Operating Plan (“SOP”) and managing fire response. The RDO is the decision maker responding to inputs in relation to prior planning and must be designated and contactable 24 hour per day. While not an exhaustive list, the RDO leads the REOC planning team, approves the daily strategic plan, sets priorities for resource allocation and dispatch, monitors situations to ensure appropriate fire response, changes and adjusts the daily plan, relocates crews, dispatches forest fire suppression equipment and aircraft as fires develop or situations change and ensures system requirements are satisfied including incident and fire status reports and ensures logs are kept by all key staff. In his testimony, the Grievor explained that the SOP is prepared twice daily to outline and provide guidance to the field of available resources, current fires, weather conditions, logistical information, fire behaviour forecasting and what the RDO sees as materializing in terms of expected hazard deployment. When a fire is reported, the Grievor explained that he tries to ascertain as much information as possible, including the type of smoke which may provide information about the type and intensity of the fire, the proximity to populated areas and water in order to determine the resources that may need to be deployed. In addition, the REOC team ascertains the approximate position of the fire and the values on the landscape with a higher value attributed, for example, to a fire or report of a fire in close proximity to a highly populated area, infrastructure, or an ecologically protected zone. In terms of tracking fires, the regions are divided into sectors with numbers of fires or predictions of fires assigned to each sector. Fires are also categorized as being, being observed under control, out of control, or out. Fire crew availability and alerts are coded either Red meaning that the crew is immediately available on a moment’s notice; Yellow meaning crews must be ready within 30 minutes and Blue meaning the crew might be working on other tasks but are available to respond within a longer time-frame.

9The Grievor also explained that there are jurisdictional areas not within the REOC’s responsibility, such as National Parks and the Georgian Bay Islands and municipalities; however, the REOC may assist with a response to a fire situation if requested by a municipality under a cost sharing arrangement. The REOC might also assist with emergencies through border agreements with the Provinces of Manitoba and Quebec or when requested to assist by Federal jurisdictions. The Grievor also explained that there are some instances when the REOC will not issue a direct fire response, such as when it receives a report of a fire that is remote and far from any communities and has a low value. In this type of situation, the Grievor commented that a decision might be made to let the fire run its course and burn out or arrangements might be made to have an aircraft go out a number of days later to check on the status of the fire.

10Before reviewing the Grievor’s work activities for the days in question in this matter, it is helpful to review the history of how work in the REOC during the active fire season has been interpreted over the years. On May 7, 2004, following a decision of this Board in OPSEU (Hollstedt) v. Ontario Ministry of Natural Resource, GSB 0226/01 (Fisher), a memo was issued to all East Fire Region Schedule 6 staff, by Ken Gibbons, Fire Program Manager East Fire Region in an effort to clarify and provide guiding principles for the compensation calculation for hours worked after a scheduled day during the fire season (‘the Gibbons Memo”). In 2004, the Fire Response Centre (now REOC) Schedule 6 employees included a Duty Officer, Intelligence Officer, Air Operations and Logistics Officer, who were scheduled on a variety of schedules, compressed and non-compressed. The memo notes that compensation for Schedule 6 employees involved in fire response operations will be according to the Collective Agreement and that hours worked after a scheduled shift will either be non fire related or fire related. In the memo Mr. Gibbons wrote:

“Hours worked after an individual’s scheduled shift will be considered fire related if the following applies:

• Ongoing fires which are exhibiting control problems or requiring sustained action and require response centre support;

• Fires or incidents including Municipal fires that occurred prior to or after the end of the day scheduled shift that require direct response centre involvement after the end of the shift;

• After the end of their scheduled shift, response centre staff is required to assist in the support of a fire situation in another Region or acting on CIFFC requests resulting from fire activity in another jurisdiction.

Fires that would not normally be considered for “fire related” would be fires being observed and pose no threat to human life or property or those under control which do not require ongoing support.

The decision for all other Schedule 6 employees regarding whether or not fire related compensation for premium hours worked is applicable will be made by the individual’s manager based upon the question – “If it was not for the existence of a particular fire or support for fires that require the individual’s direct involvement, would the duties be performed by the employee?”

11The Grievor testified that since he began working in the REOC in 2010, the Gibbons Memo applied to his duties. He stated that his understanding of the Memo was that hours worked after a regularly scheduled workday would be considered fire related if the REOC was directly involved in responding to a fire that had been assigned a fire number and was deploying assistance and resources. In contrast, the Grievor explained that if duties involved normal functions like extending crews in case their assistance was required or waiting for crews to return then such duties would not be considered fire related and the time spent after hours would be calculated as compensating by time off. Similarly, the Grievor interpreted the Memo as listing situations which would not be considered fire related where, for example, fires are deemed to be under control or where they are being observed because they might self-extinguish or where the fire is located in an area valued as a low risk of spread or damage. When asked what fire related meant to him, the Grievor pointed to the Memo referring to when a fire becomes out of control, requiring sustained action of crews and resources and planning, or where the REOC is called to assist with a municipal fire or where the REOC is called to assist by deploying water bombers to another region in the province or contacted by the Canadian Interagency Forest Fire Centre to assist with a fire on a national scale. According to the Grievor, he submitted time-sheets for compensating time off and was regularly paid accordingly for work that he viewed as not fire related until August 2019.

12On August 19, 2019 Bruce Duncan, the REOC manager at the time, sent an email to Schedule 6 staff indicating that they had been filling out the time sheets incorrectly and referred staff to an email that he had received from Tammie Thibault, Business Management Coordinator. That memo indicated that on a normal day during the active fire season an RDO would not accrue compensating time off know as OV2 (banked overtime) or OV3 (banked overtime in excess of 44 hours per week). In her testimony, Ms. Thibault explained that during the active fire season, an RDO would be entitled to receive compensating time off as per the Collective Agreement for the first 8 hours worked on a scheduled day off or for the first 8 hours worked on a statutory holiday. According to Ms. Thibault, any additional hours would be coded as FIR or fire related as the RDO would be engaging in fire response functions in the REOC. This interpretation was also reiterated by Mr. Duncan in his response to the Union in an email dated September 9, 2019 in which he explained that from Management’s perspective, the REOC response roles are considered fire related. He also distinguished fire response roles from fire training roles and indicated that the Hollstedt decision did not apply to Management’s interpretation of fire related duties and the consequent accrual of overtime rather than compensating time off. During her testimony, Ms. Thibault explained that the Grievor had entered the hours in question as OV2, which had been approved by Mr. Duncan but that she changed the entries once she was advised that they should have been entered as fire related. When questioned why she made the changes despite Mr. Duncan’s prior approval, Ms. Thibault stated that she believed that Mr. Duncan might not have known what Schedule 6 staff were entitled to. She admitted that she did not review the work that the Grievor performed on the days in question before changing the entries to fire related hours. However, she stated that the interpretation of how hours are defined must be based on the function being performed at the time and that the functions performed during the active fire season by the Grievor in the REOC were fire related. She also agreed that the Grievor would not stay at work beyond his regularly scheduled hours to update manuals or policies. The Employer agreed that prior to Ms. Thibault’s email in 2019, during prior fire seasons the Grievor routinely requested that hours worked after the end of his shift, on a regular day, would be compensated as compensating leave, and such compensating leave was granted routinely while fulfilling the function of Regional Duty Officer.

13Paul Riopel, the current Fire Regional Response Co-ordinator and Manager of the REOC, also testified about his interpretation of what functions are fire related. According to Mr. Riopel, he understood that the Gibbons memo was issued to clarify fire related and non fire related work that applies to REOC staff and other Schedule 6 employees. He testified that the Gibbons memo is no longer being followed and has been superseded by the 2019 memo from Mr. Duncan which clarifies that all fire response functions in the REOC are fire related. He explained that the REOC has evolved over time and that there are other non-fire related incidents that REOC might be asked to assist with such as tornado relief, search and rescue and flooding. He also indicated that for some time staff are no longer required to list a fire number when inputting hours on time sheets. He also explained that on a slow day during the active fire season, an RDO might work on projects that belong to the home position, such as updating manuals or policies. However, he explained that the function of anticipating fire activity and being ready to respond to an incident are fire related functions. For example, in Mr. Riopel’s view waiting for a helicopter and crew to return is fire related because the crew and helicopter were dispatched to a fire assignment. While he agreed on cross-examination that there could be situations that are not fire related as outlined in the Gibbons memo, he remained steadfast that if it was not for the existence of fire activity, the Grievor would not have stayed past his regularly scheduled hours on August 5, 13, 14, 15, 17 and September 16 or fulfilled fire related functions during the last 2 hours of his shifts on August 3 and October 12, 2020 which were statutory holidays.

14Days in Question

The Grievor worked a 10-hour shift on August 3, 2020 which was a statutory holiday ending his work day at the completion of his shift. He testified that it was a quiet day in terms of fire activity, with only 15 crews out of 66 having been deployed throughout the province and with clear weather with little wind. In his log book the Grievor noted that he attended a weather meeting in the afternoon and that by he made notations asking if crews, who had been delayed, had arrived back from at fire in the north west region at 17:44 and 17:46 pm and confirmed their arrival at 17:50 p.m. He testified that he decided to make sure they had arrived back and to make a call to confirm their arrival. At 18:40 he was contacted by a Sector Regional Officer regarding smoke on the west side of Red Lake near Cochrane. His log book entry noted that he would be discussing the fire incident in Cochrane with his colleague the following morning. During the last 2 hours of his shift, the Grievor claims that he did not perform any fire related work as there was not particular fire for the REOC to respond to at that period of time. He did agree, during cross-examination, that he was fulfilling RDO functions with respect to his log book entries and noted that he did not always make a notation of a crew arrival but did in this case because the plane had been delayed in its return. In contrast, Mr. Riopel testified that the Grievor engaged in fire related functions because of the crews arriving back from a fire response and because he logged information about dealing with responding to a smoke report which would be reviewed the next morning.

15On August 5, 2020, the Grievor stayed 1 hour past the end of his shift. He explained that he made the decision to stay longer because a large brush fire and white smoke had been reported at 6:28 p.m. near the Municipality of Sudbury. Given the time of day and the fact the crew had been dispatched and was in proximity to fire, the Grievor decided to extend crews by asking them to stay longer in case assistance was needed. The Grievor explained that sometimes it is more efficient and cost effective to extend crews, like having “cheap insurance,” than having to call crews back after their shifts have ended. The Grievor also agreed that he forgot to make a notation in the August 5, 2020 logbook that he had extended the crews availability from 7 to 8 p.m. that evening, noting that it was an oversight. He also explained that as the RDO it is his responsibility to remain at work when crews have been extended and when awaiting the safe arrival of aircraft or helicopter crews. Despite the decision to extend crews, the Grievor maintained that this decision did not involve any fire suppression activity but instead was simply a decision to keep crews available in case their services were needed by the Municipality, which did not unfold. From Mr. Riopel’s perspective, all duties that the Grievor engaged in after the report of the fire were fire related because they involved responding to the Municipality and making crews available to assist.

16On August 13, 2020 the Grievor also stayed 1 hour past his regularly scheduled shift because he decided to extend crews in response to a report of a fire in the Timmons area. Earlier that day a helicopter had been dispatched to investigate the fire but was unable to land due the conditions. Following that landing attempt, a decision was made to try to access the fire by boat. However, due to safety reasons it was decided that fire suppression action would not be done during the night and instead crews would be dispatched the following morning. The Grievor remained at the workplace an additional hour until the helicopter crew safely returned. The Grievor explained that since there was not fire suppression or a direct response taken to deal with the fire beyond an attempted landing by the helicopter, him remaining at work for the additional hour was not fire related. When questioned about this day, Mr. Riopel explained that the REOC responded to the initial fire reports to offer support and that waiting for the return of the helicopter and crew was an extension of responding to the fire, and therefore was fire related.

17In contrast, the Grievor agreed that what occurred on August 14, 2020 was fire related and thus the additional 2.5 hours that when he remained at work were properly classified as overtime hours. On that day, the Grievor explained that there was a direct response to a fire that had been reported in the Sudbury district which required a second fire crew to be dispatched for assistance with fire suppression, including water-bombing air attacks. Given the nature of the fire, it was given a fire number. Although, the northeast region had ultimate responsibility for this fire suppression, the Grievor made the call to extend the time his crew was on location to assist and remained at work until they returned.

18On August 15, 2020 the Grievor stayed past his regular work day because he needed to remain in the office until the crew returned from investigating a report of a fire at Lady Evelyn provincial park. A Red crew was dispatched to investigate the fire and at 5:00 p.m. the Grievor made the decision to extend the crews’ time there. It turned out that the fire did not require suppression as it was located at an end of a narrow peninsula with minimal chance of expansion. As a result, a decision was made to keep observing the fire but that it was not necessary for the crew to remain at the site. Again, the Grievor explained that his remaining at the office for the additional hour was not fire related because he was simply following up on his responsibility as the RDO to ensure the safe return of a crew. In contrast to the Grievor’s interpretation, Mr. Riopel noted that crews had been extended to respond to an active fire incident and he viewed the time spent by the Grievor as engaging in fire related functions.

19On August 17, 2020 the Grievor responded to a report of a fire near Stonecliff Ontario. A helicopter and crew were dispatched at 5:20 p.m. to the Haliburton region to investigate. Upon arrival the crew reported that there was no smoke or fire in sight. The Grievor stayed past the end of his shift again to wait for helicopter and crews’ return, which was delayed because it had to land to refuel before returning. From the Grievor’s perspective, the additional time that he remained at work was not fire related because upon investigation it was determined that a fire did not exist; however, he was required to stay at work to ensure the safe return of the helicopter and crew. From Mr. Riopel’s perspective, he viewed the additional time spent by the Grievor as a fire response function and responsibility associated with the initial call and deployment of the crew, even though a fire did not materialize.

20On September 16, 2020 the Grievor stayed an additional hour at work because he was waiting for a crew to return from a fire investigation and response earlier that day. The crew had been dispatched at 8:30 a.m. to Wawa Ontario in response to a small fire which was deemed under control by 4:20 p.m. The Grievor remained at work past his regular scheduled shift because there was a delay in finding air transportation to bring the crew back to the office. Again, the Grievor testified that the additional time he spent at work was not fire related because there was not a response to a fire, no suppression and he was simply waiting for the crews’ return. In contrast, Mr. Riopel maintained that bringing crews back from a fire is fire related because it is the fulfilment of a fire response function in the REOC. Mr. Riopel noted that there was a fire on this day that the REOC had responded to by dispatching crews, and therefore, waiting for the safe return of the crew was fire related.

21The Grievor worked his regularly scheduled shift on October 12, 2020, which was a statutory holiday and did not stay past the end of his shift. He testified that there were reports of small fires in the morning but that no action was required to deal with them as they had been extinguished earlier in the day. Around 5:00 p.m. that afternoon, there was a report of a small fire on an island in the Haliburton Ontario region but it was decided that no action was needed to supress the fire. In addition, the REOC received a call from a member of the public concerning a tree on fire that had fallen on a power line in a rural area. The Grievor determined that no one was needed to attend at the fire scene given the low risk of the fire spreading and because the local hydro unit could deal the situation. From the Grievor’s viewpoint, during his last 2 hours of work that day, he was not engaged in fire related work given that there was no response action or directions given to supress the reported fires. From Mr. Riopel’s perspective the work that the Grievor completed that day was fire related because the Grievor was required to deal with an initial report of fire related incidents. The fact that the fires did not require suppression did not take away from the fire response function, according to Mr. Riopel.

Union Submissions

22The Union argues that the Employer, in this case, has applied UN 8.7.5 in an overly broad manner without regard to the actual work performed and treated routine duties as being fire related when there was not a response to an existing fire. The Union states that this Board in OPSEU (Hollstedt) v. Ontario Ministry of Natural Resource, GSB 0226/01 (Fisher) previously held in interpreting predecessor language to UN 8.7.5., a duty that falls within the ambit of “assigned to forest fighting or related duties”, requires a determination as to whether: If it were not for the existence of a particular fire, would these duties have been performed by the employee? The Union submits that I am bound to follow Hollstedt in light of the GSB decision in Amalgamated Transit Union (Blake et al.) v. Ontario (Toronto Area Transit Operating Authority) , GSB No. 123/87 (Shime).

23The Hollstedt case involved the question of whether teaching a pre-scheduled forest fighting training course by a Schedule 6 employee during the fire season constituted “related duties” under a predecessor version of UN 8.7.5. In that case the issue was whether the Grievor was entitled to overtime compensation if the teaching was found to be fire related. The Union submits that Hollstedt stands for the proposition that in order for duties to be found as fire related an actual fire must exist and not a theoretical or potential one. While Hollstedt dealt with training courses, the Union argues that the relevant consideration under UN 8.7.5. is the one posed in Hollstedt that if were not for the existence of a fire, would the duties have been performed? Applying that test to this case, the Union states that only where there is a specific response to an existing fire on the landscape involving sustained action and suppression, does a duty become fire related.

24While acknowledging that the Gibbons memo is not enforceable, the Union asked that I consider and apply its guidelines and principles. The Union noted that it was prepared about 1 year after the Hollstedt case and was relied on by Management and Staff for a number of years to clarify whether duties were fire related or not. In addition, the Union pointed to Ms. Thibault’s testimony and the Employer’s acknowledgement, that up until 2019, the Grievor did receive compensating time off instead of overtime payments for additional hours worked.

25The Union maintains that it cannot be, as suggested by the Employer witnesses, that all work in the REOC during the fire season, is fire related. Again, the Union submits that the actual work performed must be assessed and asks me to consider that Gibbons memo contemplated that there can be both fire related and non fire related duties occurring during the active fire season.

26Turning to the days in question, on the statutory holiday of August 3, 2020, the Union argues that the evidence shows that it was a quiet day with usual weather briefings and conference calls with colleagues in other fire regions, crews arriving back and monitoring of a fire that was labelled under control. While there was a report of smoke near Cochrane late in the day, the Union states that the Grievor testified that by 5:00 p.m. that day there were zero incidents to report. From the Union’s perspective, the Grievor did not perform any fire related duties.

27With respect to August 5, 2020, the Union states that what caused the Grievor to stay late was his decision to extend the crew to remain available to assist with a large brush fire that had been reported near Sudbury. In making the decision to hold the helicopter and crew, the Union argues, as the Grievor explained, that the REOC was acting a good neighbour in the form of cheap insurance in case further support was needed. In the end, the crew’s assistance was not required as no further response was required by the Municipality. From the Union’s perspective, the situation on August 5, 2020 fits squarely within the Gibbons memo characterization that when a fire is under control and does not require on-going support the situation should be considered as not fire related.

28Regarding duties performed on August 13, 2020, the Union submits that while crews responded to a report of a fire, suppression action was not performed because a decision was made, for safety reasons, to let fire burn overnight to be dealt with the following morning. As a result, the Union submits, that waiting for the helicopter and crews’ safe return was not fire related because no response was required at the time.

29With respect to August 15, 2020, the Union states that a helicopter and crew were dispatched to investigate a report of a fire at Lady Evelyn provincial park and upon investigation the decision was made to observe the fire. From the Union’s perspective the Grievor did not perform fire related functions in waiting for the helicopter and crew to return because there was no action of suppression or response required.

30The Union argues that the Grievor did not engage in fire related duties after the end of his shift on August 17, 2020. On that day, although a helicopter and crew were dispatched late in the day to investigate a report of a fire near Haliburton, no fire was found and the Grievor remained at work late because he was waiting for the crew’s return which was delayed due to refuelling issues. The Union submits that the investigation of the fire report occurred well before the end of the Grievor’s shift, and therefore, his decision to remain at work was to ensure the crew’s safe return and not for fire related reasons.

31Similarly, on September 16, 2020, the Union maintains that what kept the Grievor late at work was due to his need to remain at work to wait for the safe return of a crew who had been dispatched earlier in the day to investigate a fire in Wawa that was deemed under control later in the afternoon. The Union states that the evidence showed that the crew was delayed in returning because they had to wait for another helicopter to pick them up and that their delay, not fire related reasons, caused the Grievor to extend his time at work.

32Regarding the statutory holiday hours on October 12, 2020, the Union submits that the evidence shows that the Grievor’s last 2 hours of work did not involve fire related duties. In this regard, the Union points to the Grievor’s evidence that it was a quiet day in terms of fire activity. The Grievor testified about a report of a small fire in Haliburton in which it was determined that it was not likely to expand and that no suppression was required that day. Additionally, the Grievor referred to a report of a tree power line fire near Sudbury in which it was determined that no suppression action would be required from the REOC.

33In contrast to all of the days summarized above, the Union argues that there is a clear distinction between the duties that the Grievor performed on August 14, 2020 which it agrees were fire related. Compared to time spent waiting for crews and helicopters to return where a fire is under control, being observed or where no fire exists, the functions performed on August 14, 2020, involved a specific fire suppression response with resources deployed and water bombing engaged.

Employer Submissions

34The Employer argues that UN 8.7.5 is clear and unambiguous when it refers to forest firefighting and related duties. In that regard, the Employer emphasizes, for example, that there is no requirement that a fire has to materialize or that suppression efforts must exist or that a fire number be assigned in order to characterize work as forest firefighting or related duties. By including the words related duties, the Employer suggests that this signals a clear intention to broaden the scope beyond pure forest firefighting.

35The Employer relies on the decision OPSEU (Union Grievance) v. Ontario (Ministry of Natural Resources) GSB No. 2156/87 (Dissanayake), in support of its view that fire suppression is irrelevant for the purposes of UN 8.7.5. In that case, a grievance was brought alleging that the Ministry failed to pay overtime pursuant to an earlier version of UN 8.7.5 to Schedule 6 employees assigned to forest fire fighting on prescribed burns. As noted at page 3 of that decision, a “prescribed burn” is a deliberate application of fire to a specific area of the forest under predetermined conditions and it most commonly used for silvicultural objectives to prepare a site for tree planting. When the grievance was filed in that case, Schedule 6 employees who were assigned to a prescribed burn did not receive overtime because the Ministry maintained that they were not assigned to forest fire fighting or related duties. The Ministry also took the position that Schedule 6 employees were not engaged in fighting a fire or related duties in terms of offensive suppression of a fire but rather were engaged in the act of monitoring which would not attract overtime. Arbitrator Dissanayake found in favour of the Union by concluding that the distinction of suppression did not apply and instead found that readiness to go into action must fall withing the meaning of fire fighting or related duties. At page 12 of his decision, he wrote: “Surely an employee who is monitoring a fire in readiness to go into action if required must come within that term. The employee is on duty in a fire fighting or related role whether he is in fact required to go into action.”

36The Employer maintains, as explained by Mr. Riopel, that during the active fire season the Grievor, as RDO, is responsible for the duties of a fire response function no matter which way his role is examined. During the active fire season, the REOC runs as a 24/7 operation with staff on standby until midnight and the Compressed Work Week schedule is in place so that employees at work are ready to respond to fires that often peak in late afternoon or early evening. In addition, the completion of the SOP twice daily reviews currents fires, weather behaviour and forecast and the determination of the deployment of resources in the event a response is necessary. From Mr. Riopel’s perspective all REOC staff perform fire related work during the active fire season.

37In terms of the Gibbons memo, the Employer notes that Mr. Riopel testified that the memo no longer applies and that, in any event, it was meant to provide a non-exhaustive list of guidance to clarify fire related and non fire related duties to both the REOC and non REOC staff. In addition, Mr. Riopel testified that things have evolved over time in REOC and noted, for example, that fire numbers are no longer required to be inputted on time sheets. The Employer asked me to accept Mr. Riopel’s testimony as evidence of less reliance on duties being tied to the existence of an on-going fire but rather to a broader set of fire related incidents requiring a response.

38With respect to the decision in Hollstedt, the Employer states that the circumstances in this case are distinguishable and that the question raised in Hollstedt must be looked at more broadly in terms of response to a fire. In his position as RDO in the active fire season the Grievor’s functions are a fire response role. In Hollstedt, that Grievor was engaged in teaching pre-scheduled fire training courses, whereas, the Grievor in this case did not preschedule overtime but was required to remain at work either because there was a report of a fire requiring investigation, or crews were extended due to a potential fire activity, or crews were returning from dealing with a fire activity. Had these events not occurred, the Grievor would not have stayed past his regularly scheduled shift. In addition, on the statutory holidays of August 3 and October 16, the Employer states that while those days did not involve overtime hours, the work performed by the Grievor during the last 2 hours of his shifts involved fire related response functions.

39In terms of the days in question in this case, the Employer maintains that on August 3, 2020 during the last 2 hours of his shift the Grievor engaged in fire related duties as evidenced in his testimony and what was written in his log book that Red crews arrived in Haliburton just before 6:00 p.m. In addition, the Employer points out that in cross-examination the Grievor clarified that crews were assisting with fires at that time and that Mr. Riopel testified that the duties performed were fire related in the Grievor’s capacity as an RDO.

40On August 5, 2020, the Employer submits that the functions performed by the Grievor as RDO were fire related because a decision was made to leave crews on alert, whether or not their assistance was needed by the Municipality. Although the Grievor spoke about the decision to extend crews as a form of “cheap insurance,” the Employer argues that the crews were ready to respond to a fire and therefore the Grievor’s function and duties must be viewed as fire related. The Employer also argues that I should take note of the fact that the Grievor did not log full information about extending crews despite the fact, in its view, the decision to extend crews was a fire related duty.

41With respect to August 13, 2020 the Employer asserts that the Grievor in his function of waiting for a crews’ arrival was a direct result of the REOC’s response to a fire, despite the fact that the helicopter could not land and that a decision was made to deal with the fire by boat approach the following morning. Similarly, the Employer maintains that on August 15, 2020 the decision to extend crews and to wait for their arrival was a fire related response to a report of a fire, despite the fact that upon investigation a determination was made that suppression was not warranted at that time.

42Regarding August 17, 2020, the Employer argues that the time spent waiting for the return of helicopter crew was due to an earlier deployment of the crew that day to deal with a fire. The Employer points to the evidence of Mr. Riopel in which he explained that the REOC receives many calls daily and is always required to determine and investigate whether a fire is burning and confirmed that a crew was deployed that day. Mr. Riopel reiterated a similar viewpoint about what occurred on September 16, 2020 noting that the Grievor was fulfilling a fire related function not only in deploying a helicopter earlier to respond to a fire, but also in waiting for the crew to return once the fire was under control.

43With respect to the Grievor’s activities on the statutory holiday of October 12, 2020, the Employer submits that there were 2 reports of fires that were investigated by crews and it was determined that no suppression was required. Again, Mr. Riopel maintained that the reports of fire required the REOC to respond, investigate even if suppression was not needed, and therefore the duties performed by the Grievor the last 2 hours of that day were fire related.

Decision

44The Collective Agreement clearly sets out when Schedule 6 employees are entitled to compensating time off under UN 8.71. UN 8.7.4 and UN 13.7. However, an exemption to the accrual of compensating time off is found in UN 8.7.5 which provides for the payment of overtime rates to a Schedule 6 employee assigned to forest fire fighting and related duties, after 8 hours of work on a regularly scheduled day or on a statutory holiday. The question before me is whether the Grievor performed related duties to forest fighting on the days in question.

45I agree with the Employer’s submissions that the concept of fire suppression is not required in order for a duty to be related to fire fighting. The Collective Agreement does not contain language which would suggest that a fire needs to be active or that suppression activities must be engaged when it uses the words fire fighting. By adding the words “and related duties,” it follows that there is an understanding that fire fighting involves a broader range of duties and functions to support fire response that are related to the activity of fire fighting. Having listened to the Grievor’s very thorough testimony about all the functions that are performed by him and the REOC to monitor and respond to fires and reports of fire activity, it is evident that the activity of fire fighting entails a broad range of functions both preventative and reactive.

46I am persuaded by the reasoning in OPSEU (Union Grievance) v. Ontario (Ministry of Natural Resources) GSB No. 2156/87 (Dissanayake) that the notion of readiness to go into action or the monitoring of a fire which does not materialize falls withing the meaning of “fire fighting and related duties” and that suppression action is not required. While this case involved a prescribed burn situation, the response functions of the REOC and of the RDO of being ready to assist or monitor in the event of a fire’s expansion, or where a fire starts but does not require further response, equally applies in this case.

47Having reviewed the reasoning in Hollstedt, the question asked by Arbitrator Fisher is appropriate. However, given my reading of the language in UN 8.7.5 together with the reasoning in Arbitrator Dissanayake’s decision, I am not convinced that the decision stands for the narrow principle that only if there is an existing fire that requires a direct response and suppression does the language of “ fire fighting and related duties apply.” In that case Arbitrator Fisher reviews the Board’s ruling by Arbitrator Dissanayake and then asks the question if it were not for the existence of a particular fire, would these duties have been performed? At p. 3, Arbitrator Fisher states:

“If the answer is no, then the duty is related to fire fighting. For instance, if one’s duty was to roll up hoses after the fire was extinguished, then one can say that it is a function that would not have been performed but for the prior existence of a fire. If the answer is yes, then the duty is not related to fire fighting. Thus, if the job duty was to check hoses for leaks every month, no matter what they were used for, one could say that this not related to fire fighting because the duty would have been performed whether or not there was a fire.”

48The duty of teaching fire fighting courses is very different from the duties that were performed by this Grievor which in my view were duties that related to fire fighting activities. Waiting for a helicopter and crew to return after a fire was deemed under control or where a fire was reported requiring a deployment of a crew that evolves into circumstances where the municipality no longer requires assistance, is no different than Arbitrator Fisher’s example of rolling up a hose after a fire is extinguished. In Hollstedt, it was concluded that the pre-scheduled course was taught on days without regard to the existence of any particular fire. In contrast, in this case, the reasons that the Grievor stayed late and worked on fire response activities on the regularly scheduled days in question and on the 2 statutory holidays was as a direct result of the existence of a fire or report of a fire that was being investigated or required direct response that could not have been preplanned.

49While the Gibbons memo attempted to clarify fire related and non fire related duties, it is not a binding document. It provided some guiding principles and a non-exhaustive list of examples of situations that might be considered fire related or not. Ultimately the memo indicated that it was up to a manager to make the determination of whether a duty is fire related, which is further indication that the memo set out guiding principles. Although there was evidence that the Grievor had received compensating time off in the past for duties performed after hours during the active fire season, Schedule 6 staff in the REOC were put on notice by Mr. Duncan’s August 19, 2019 memo which clarified that time sheets had been inputted incorrectly. The fact that Mr. Duncan had approved the Grievor’s time sheets which were later changed by Ms. Thibault does not persuade me that the work performed in this case was not fire related. Ms. Thibault testified that she was following the terms of the Collective Agreement and had advised Mr. Duncan of the need to make the correction. From her perspective, despite not reviewing the work performed by the Grievor, all the duties performed were fire related as part of the Grievor’s functions RDO pursuant to the Collective Agreement.

50Looking at the days in question I am satisfied that the duties performed by the Grievor were fire related and I accept Mr. Riopel’s explanation that there was a direct connection between a fire response function underlying the reasons that Grievor stayed late on August 5, 13, 15, 17 and September 16, 2020 and the work he performed during the last 2 hours of his shifts on the statutory holidays of August 3 and October 12, 2020.

51Had a fire or report of a fire or fire investigation not occurred, or had crews not been deployed or extended, there would have been no reason for the Grievor to remain at work after hours on his regularly scheduled days or for him to fulfill the fire related function on the two statutory holidays in question. From my perspective, for example, the fact that a crew was delayed returning from a fire that was deemed under control or a decision was made to deal with a fire the following morning because it was both unsafe for a helicopter to land and to attack the fire during the night, does not detract from the original fire response reason that a crew and resources were dispatched. Similarly, responding to a report of fire that does not materialize, does not mean it is not fire fighting and related duties. The concept of being ready to go into action and monitoring even if a fire does not materialize has been found by the Arbitrator Dissanayake to fall withing the meaning of fire fighting and related duties and I apply that reasoning equally to this case.

52Accordingly, this grievance is dismissed.