GSB# 2021-2580

UNION# 2021-0616-0034

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Amendola)

Union

• and -

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

Employer

BEFORE

Brian P. Sheehan

Arbitrator

FOR THE UNION

Richard Dionne Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Justin O’Gorman Treasury Board Secretariat Employee Relations & Negotiations Team Lead

HEARING

May 6, 2025

Decision

1The Employer and the Union at the North Bay 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 it is without prejudice or precedent.

2The facts in this matter are not in dispute.

3Dale Amendola (the “Grievor”) is employed as a Cook 3 at the North Bay Jail.

4The Grievor’s normal hours of work are from 6AM to 6PM. At the time of the grievance, he was working a two-week rotation of Monday, Tuesday, Saturday, and Sunday on week 1, and Wednesday, Thursday, and Friday on week 2.

5In April and May 2021, he was offered and accepted an assignment of working from 8PM to 10PM to assist with the Employer’s efforts to provide a meal service for an inmate observing Ramadan. The 8PM to 10PM two-hour assignment did not always fall on a scheduled working day of the Grievor.

6In total, the Grievor came in 22 times after hours to perform the two-hour assignment of work.

7The Employer paid the Grievor for 4 hours of overtime on the first occasion he came in to work the extra hours, pursuant to the Call Back Article COR9.1 of the collective agreement. For the remaining 21 times, he was paid 2 hours of overtime on each occasion.

8The Union asserted that the Grievor was entitled to be paid 4 hours overtime for all 22 occasions, as the call back provision should have applied to each such time that he returned back to work to complete the two hours.

9Article COR9.1 is as follows:

COR9.1 An employee who leaves their place of work and is subsequently called back to work prior to the starting time of their next scheduled shift shall be paid a minimum of four (4) hours’ pay at one and one-half (1 ½) times their basic hourly rate.

Disposition

10Upon reviewing the wording of Article COR9.1 and the submissions of the parties, it has been determined that the position of the Employer should prevail.

Analysis

11Arguably the starting and ending point of the discussion as to the application of Article COR 9.1 to the facts involving the grievor, is that the subheading that the provision falls under is titled “Call Back”. The clear implication is that this provision generally applies to a scenario of an employee being called back to perform work after leaving the workplace. Further to this point, the wording of Article COR 9.1 expressly suggests that there are three requirements, all of which must be satisfied, for an employee to be entitled to premium pay of a minimum of 4 hours at the overtime rate provided for by the Article:

1. The employee must have left the workplace; and

2. the employee is subsequently called back to work; and

3. the work they are called back to perform must take place prior to their next scheduled shift.

On this point see Ontario Public Service Employees Union (Hymers et al) v. The Crown in Right of Ontario (Natural Resources) 2008 CanLII 70510 (ON GSB) (Kirkwood).

12In the case at hand, the Grievor did not satisfy the required criteria, aside from the two-hour overtime assignment that the Grievor completed on the first occasion. On the 21 occasions in dispute, he was not called back to work after leaving work. Rather, the Grievor on the days in question worked two hours of overtime that he had previously accepted. Taking the Union’s position to its logical conclusion would mean that any assignment of overtime which is not contiguous to the end of, or the start of, an employee’s scheduled shift would theoretically constitute a call back for the purposes of Article COR 9.1.

13The Union placed particular reliance on the Labatt Breweries Ontario (London) and Brewery, General and Professional Workers Union Local #1 2006 CanLII 1319 (ON LA) (Shime) decision. In particular, the Union asserted that Arbitrator Shime in that decision noted that the underlying purpose of a callback provision is to provide for a minimum premium payment in light of it involving an encroachment on the employee’s personal time as well as requiring the employee to incur the inconvenience and costs associated with having to return to the worksite. The Union submitted that with respect to the 21 work assignments in dispute, the grievor experienced such an encroachment on his personal time and experienced the inconvenience of an additional trip to and from the workplace. No issue is taken whatsoever with the outlined purpose of a callback provision; however, as has been previously stated, it has been determined that the Grievor was not called back to work as contemplated under Article COR9.1, as the work in question represented pre-arranged overtime assignments.

14Furthermore, with respect to the Labatt Breweries Ontario (London), supra decision, it is noted that Arbitrator Shime began his analysis by observing that “It is trite law to say that the decided cases turn on both a reading of the individual collective agreements and also on the specific fact situations”. Following up on that precept, the facts in this case are far removed from those in Labatt Breweries Ontario (London), supra, as that case related to the issue of a single instance of an employee accepting a work assignment that was prior to, but not contiguous to, the start of his next scheduled shift. Arguably, and more importantly, Arbitrator Shime essentially suggested that overtime is distinct from a callback scenario as it generally relates to “a period of time that spills over to or extends an employee’s regular work”. While I have the utmost respect for Arbitrator Shime, I do not ascribe to the view that overtime generally only arises if the work performed is immediately before or after an employee’s scheduled shift. These parties, through the collective agreement and the Provincial Overtime Protocol, indisputably, have not adopted the view that overtime only applies to work that is contiguous to the start of or end of an employee’s scheduled shift.

15Thus, the Grievor’s two-hour assignments during the period of April and May 2021, with the exception of the first occasion, were correctly termed and compensated as regular overtime.

16Accordingly, the grievance is hereby dismissed.