PSGB#P-2015-2081

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT OF ONTARIO

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Huppmann

Complainant

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Marilyn A. Nairn

Vice-Chair

FOR THE COMPLAINANT

Richard Huppmann

FOR THE EMPLOYER

Peter Dailleboust Treasury Board Secretariat Legal Services Branch Counsel

HEARING

April 6, 2016

Decision

1The complainant, Richard Huppmann, is employed as a Sergeant at the Central East Correctional Centre (“Central East”) within the Crown’s Ministry of Community Safety and Correctional Services (the “employer”). He filed an application to the Board dated September 22, 2015. The employer filed its Form 2 response and the matter proceeded to hearing.

2The application alleges that:

Since January 1, 2015 the employer has required that I be readily available to [be] called back to the work site, even when on approved vacation, and has not paid the required “on-call pay” that is set out in the Management Board of Cabinet’s Compensation Directive, specifically section 21(2).

3By way of remedy, the complainant asks for an order that the employer:

1. Pay him “on-call” pay for all hours not worked between January 1, 2015 to January 9, 2016;

2. Reimburse him for additional costs that the complainant asserts he incurred that were caused by the employer’s delay in approving vacation; and,

3. Compensate the complainant for the undue hardship and stress caused by continued delays in approving vacation since January 1, 2015 through an order for 160 hours of compensating time off.

4Section 21 of the Compensation Directive provides:

21. (1) An employee described in subsection (3) is entitled to be paid one dollar per hour when he or she is on call.

(a) An employee described in subsection (3a) is entitled to be paid one dollar per hour when he or she is on call.

(b) …

(2) For the purposes of this section, an employee is considered to be on call when the employee keeps himself or herself reasonably available for recall to work during a period (authorized by his or her supervisor) that is not his or her regularly scheduled work period.

(3) Employees are entitled to compensation under this section,

(a) if they are employed in a class of position set out in Schedule 5 and the class falls within the Management Compensation Plan; or

(b) …

(4) Despite subsection (3), employees in the Crown Counsel 1, 2, 3, or 4 (Excluded) classes are not entitled to compensation under this section.

5There is no dispute that the complainant’s position of Sergeant, classified as a COM1, is a class of position set out in Schedule 5 of the Compensation Directive. It is further agreed that that class falls within the Management Compensation Plan (“MCP”) such that subsection 21.(3)(a) of the Compensation Directive applies to the complainant. (In this decision, such an individual is referred to as an “employee” or a “Sergeant”.)

6Mr. Huppmann’s application sets out that he was unaware that he had been “on call” from January 1, 2015 until he received an e-mail dated August 27, 2015 that used language he believed corresponded to the language used in section 21 of the Compensation Directive. A number of e-mails were submitted in evidence. The complainant stated that Sergeants had been told at the end of 2014 that there would be a moratorium on vacation and that vacation would not be approved in advance. No further detail was provided. The employer acknowledged that MCP staff were advised that, during the period of collective agreement negotiations with OPSEU, vacations would not be approved using the usual vacation approval process.

7Deputy Superintendent Hillen at Central East sent an e-mail dated February 27, 2015, advising the complainant and other Sergeants that the institution would be able to respond to time off requests for March once direction had been received from the Deputy Minister. At the morning meeting on May 5, 2015 attendees, including the complainant, were advised that managers (referring to Sergeants) could submit requests for vacation approval until the end of May. According to the institutional notes of that meeting, the Superintendent of Central East advised that the employer was hoping to have a better idea of vacation approval time frames following an OPSEU conference apparently being held that weekend, and, that the employer was hoping to soon commence a recruitment process for additional managers. The complainant understood that the employer’s position with respect to the approval of vacation for Sergeants resulted from the ongoing labour dispute between the employer and OPSEU. Had there been any labour disruption resulting in Correctional Officers not reporting to work, the COM1 group of managers would be required to staff the institution in order to maintain the operation and security of the correctional facility.

8An e-mail dated May 21, 2015 advised the complainant that requests for vacation up to and including September 7, 2015 could be approved. This e-mail, forwarded from the Assistant Deputy Minister, indicated that staff approved for vacation were to provide a telephone number at which they could be contacted. Implicit in that requirement was the notion that the telephone number be one where the staff member could be contacted during any such approved vacation.

9The complainant received an August 27, 2015 e-mail sent by Deputy Superintendent Hillen. The subject heading of the e-mail is “Requests for Vacation” and it states:

As communicated at the Managers morning meeting there has been approval to extend the period for vacation requests.

Requests for vacation by Institutional Services managers may be approved up until October 31^st.

As a reminder, managers who are on vacation may be called back to their work sites at any time, therefore they are required to provide a telephone number at which they can be reached during this period.

Purchase of travel insurance should be encouraged.

10A subsequent e-mail, dated October 14, 2015 from Deputy Superintendent Nesbitt at Central East, advised that vacation requests could be approved up until November 30,2015 and that requests for the remainder of the year including the December/January holiday period would be reviewed in mid-November. Like the August 27th e-mail, that e-mail noted:

As a reminder, managers who are on vacation may be called back to their work sites at any time; therefore they are required to provide a telephone number at which they can be reached during this period.

11An e-mail dated October 28, 2015 from Deputy Superintendent Nesbitt advised that attempts would be made to avoid cancelling vacations or calling anyone back during their vacation. Further it advised that all vacation requests would be considered based on operational requirements and each request would be considered on a case-by-case basis.

12An e-mail dated December 15, 2015, forwarded from the Deputy Minister advised as follows:

Requests for vacation by Institutional Services managers may be approved up until January 3, 2016.

As a reminder, managers who are on vacation may be called back to their work sites at any time; therefore they are required to provide a telephone number at which they can be reached during this period.

Even though it may be necessary to cancel vacations for managers or to call back managers from vacation, please note that attempts are to be made to avoid either cancelling vacations or calling anyone back during their vacation.

Further, please ensure that staff are reminded that all requests for vacation will be considered based on operational requirements and that each request will be considered on a case-by-case basis.

The continued standard operation of correctional facilities is paramount.

Purchase of travel insurance should be encouraged.

Please notify your respective Superintendents/Senior Administrators of this direction.

13By e-mail dated March 26, 2015 the complainant requested vacation on May 30, May 31, and June 1, 4, 5 and 8, 2015 in order to attend his brother’s 40^th birthday party in Germany. Deputy Superintendent Hillen responded the same day, advising that vacation was approved for May 30 and May 31, 2015 but was only tentatively approved for the June dates. Approval for the June dates was given on May 21, 2015.

14Similarly, the complainant’s request in July 2015 for vacation in November 2015 was tentatively approved in early August 2015 but actually approved on October 14, 2015. The complainant cancelled this trip as the delay in approval interfered with the ability of others to coordinate their plans with those of the complainant, that opportunity to meet being the primary purpose of the trip. He did take a short vacation in mid-November.

15On August 31, 2015 the complainant requested vacation over the Christmas holiday. This was an annual trip for the complainant to spend time with family. A subsequent amended request was tentatively approved “dependent on labour issues” by Deputy Superintendent Hillen on December 3, 2015. Approval for the amended request was given on December 15, 2015. The complainant adjusted his travel dates but at some additional cost. The employer did not deny any of the vacation requests made by the complainant. Approval for those requests was delayed.

16By e-mail dated December 29, 2015 Deputy Superintendent Nesbitt advised Sergeants at Central East as follows:

All managers have been placed on Stand-By Time effective 1500 hours on Tuesday, December 29, 2015 until further notice.

As you are aware, “Stand-By Time” means a period of time that is not a regular working period during which an employee is required to keep himself or herself:

(a) immediately available to receive a call to return to work, and

(b) immediately available to return to the workplace.

I will keep you appraised [sic] of any further updates in this regard. Thank you.

(emphasis in original)

17Stand-by pay is provided for in Section 22 of the Compensation Directive. That provision defines stand-by duty as follows:

22.(2) For the purposes of this section, an employee is considered to be on stand-by when the employee keeps himself or herself available for immediate recall to work during a period (authorized by his or her supervisor) that is not his or her regularly scheduled work period.

18Apart from a minimum stand-by period, stand-by pay is, essentially, an amount of one-half the basic hourly rate for every hour of stand-by. The complainant received stand-by pay for the period of vacation from November 12-15, 2015 and also received stand-by pay from at least December 29, 2015 in accordance with this e-mail. Collective bargaining between the employer and OPSEU was resolved on or about January 9, 2016. The period of time from January 1, 2015 until January 9, 2016 corresponds with this period of bargaining and the resulting staffing uncertainty.

19Prior to departing on his vacation to Germany on May 29, 2015, his vacation in November 2015, and his vacation in late December 2015, the complainant provided the employer with a phone number where he could be reached. On approval of his vacation requests he was simply advised that the vacation was approved.

20In his written submission, which the complainant reviewed at the hearing, he asserted that:

…the employer did continually require that I be reasonably available for recall to work for an extended period of time and as a result unreasonably delayed the approval of vacation and other requests for time off…

During [the period January 1, 2015 until January 9, 2016] the employer placed numerous moratoriums on time off being granted due to the ongoing OPSEU labour issues. The spirit of these moratoriums was without question to ensure employees within the MCP and excluded classification remained readily available to return to the workplace in the event of a labour disruption.

The Employer used its exclusive right to approve or deny vacation to impose “on call” conditions on MCP and excluded category employees, yet without specifically stating that we were “on-call”. …

The Compensation Directive clearly establishes that an employee within my classification is entitled to be paid one dollar per hour when he or she is on call. No compensation for the lengthy on call period has been paid by the employer who has clearly acted in bad faith by abusing the authority to approve and deny vacation in order to impose “on-call” conditions.

This issue came to my attention when I was reminded in writing on August 27th, 2015 that while on vacation I “may be called back to the work site at any time”, and that I was therefore “required to provide a telephone number at which I could be reached during this period”. At that time it occurred to me what the employer’s intent was, and I have since noted that this “reminder” was issued on 4 occasions. The fact that the employer did on 4 occasions “remind” me that the expectation was that I “may” be called back to my work site at any time, and was required to provide a phone number where I could be contacted, clearly placed me “on-call”. Although the written direction only speaks to vacation period, the fact that the employer states at the beginning of their written direction “as a reminder”, establishes the fact that the expectation was that I was required to be “reasonably available for recall to work” up unto the point when the written direction was issued, and that the expectation to remain “reasonably available for recall to work” was at that point being extended for a further period.

21The complainant asserted that he had suffered hardship, stress, and instability in his home life as a result of the employer’s conduct. The complainant provided some evidence in support and the parties agreed that I would remain seized with respect to any issue of remedy.

22At the hearing the complainant stated that he was not disputing that the employer had the right to refuse vacation. Rather, he argued that the employer could not use that authority to hold people in an on-call status without compensation. The only thing the employer failed to do, argued the complainant, was to explicitly state that employees were on call. Yet, for the entire calendar year of 2015 the employer required Sergeants to be reasonably available, argued the complainant, and therefore section 21.1 of the Compensation Directive applied. The complainant argued that use of the words “as a reminder” in the e-mails indicated that the direction to leave a phone number where he could be reached had been given throughout this entire period.

23It was the position of the employer that the granting of vacation and time off fell within management’s discretion and was unfettered by any policy or directive. The complainant, argued the employer, acknowledged that the employer had the exclusive right to approve or deny vacation. The employer argued that the complainant was effectively asking that the employer be required to approve vacation requests within a prescribed period of time. That, argued the employer, was tantamount to setting a new term or condition of employment, a matter beyond the jurisdiction of the Board. In that regard the employer referred to the decisions in Hugh MacDonald et al. and the Crown in Right of Ontario (MCSCS), PSGB No. P-2012-4718 (November 7, 2014) (O’Neil); Garrett et al. and the Crown in Right of Ontario (MHLTC), PSGB No. 2003-1670 (May 17, 2005) (O’Neil); Laird et al. and the Crown in Right of Ontario (MCSCS), PSGB Nos. P-2006-1287 et al. (July 14, 2009) (Leighton); Kevin Ransome and the Crown in Right of Ontario (MHLTC), PSGB Nos. P-2005-2314 et al. (December 5, 2006) (O’Neil), and OPSEU (Pieter B. Kuyntjes) and the Crown in Right of Ontario (MOT), GSB No. 513/84 (April 9, 1985) (Verity et al).

24The employer noted that it could, within its discretion, have denied vacation requests until such time as the OPSEU negotiations had concluded and noted that section 6 of the Employment Standards Act does not apply to the Crown. However, argued the employer, aware of the impact of such a decision on its employees, it chose not to take that approach. Rather, it managed the granting of vacation time throughout the bargaining cycle and noted that the complainant’s vacation requests had been approved, albeit with less notice than usual. The e-mails, argued the employer, relate to vacation periods and cannot be interpreted to capture all hours not at work in 2015.

25There was no evidence, argued the employer, that the complainant was on call in accordance with Section 21 of the Compensation Directive. On call can only relate to hours outside one’s regularly scheduled hours, argued the employer. Vacation applies to regularly scheduled work hours, argued the employer, otherwise one would not require vacation in order not to attend work. So, argued the employer, on call cannot apply to a vacation period. While the employer was sympathetic to the issue, many were under the same limitation and were required to plan their lives outside work accordingly.

26In reply the complainant argued that on call is pay for hours not at work. While on vacation he was paid salary to cover vacation time. He was seeking pay for all hours outside his regularly scheduled hours. He acknowledged receipt of stand-by pay as of December 29, 2015 for all hours outside his scheduled hours and while he was on vacation, that is, for all hours not captured by payment of the vacation credit. The complainant argued that the employer had used its authority to approve or deny vacation to impose on call status on him – that he had agreed to be reasonably available to return to work at all times. He argued that his complaint had nothing to do with approving or denying vacation. Rather, he argued, the denial of vacation was a symptom of the abuse of authority and discretion by the employer. He distinguished the caselaw on the basis that those decisions did not apply to an on call claim, and, there was a provision in the Compensation Directive on which he was relying, something absent in those cases. The complainant argued that he had, according to the employer’s direction, kept himself reasonably available to return to work and met all the preconditions for on call pay under section 21 of the Compensation Directive.

27There is no evidence that there is a term or condition of employment requiring the employer to approve or deny vacation within any specified time period or in accordance with any particular process. The complainant essentially acknowledged that the employer has the discretion to grant or deny vacation requests. The complainant acknowledged that he was aware that the approval of vacation requests was being delayed because of the ongoing labour dispute between the employer and OPSEU. Had OPSEU taken job action as part of its collective bargaining process, resulting in Correctional Officers not attending work, the employer would have been required to utilize other appropriate staff to ensure the continuing safe operation of its correctional facilities. Sergeants are a primary source of staffing in that event and it would likely have been an “all hands on deck” kind of response.

28The employer’s motive and reasoning were clear and reflected a legitimate business interest. Prior to approving vacation requests the employer wanted to be confident that it would not likely require the employee’s services during the period of vacation. It understood that having to cancel vacation or call an employee back from vacation would result in significant discontent. The employer was better able to predict its operational needs closer to the time in question, so delays in approval were the result. The fact is, Sergeants were thereby affected by the dispute between OPSEU and the employer. However the employer did not violate any term or condition of employment by delaying the approval of the complainant’s vacation requests. Nor does the evidence establish that the delay in approving the complainant’s vacation requests was in any way arbitrary or in bad faith.

29The complainant’s argument that he was on call throughout the entire period of January 2015 to January 9, 2016 must fail. There is no evidence to support a finding that the complainant was required to hold himself reasonably available for recall to work throughout that entire period. All of the evidence is directed specifically to periods of vacation. The words “during this period” used in some of the e-mails are specifically qualified by other language in those e-mails that reference vacation.

30The complainant argued that the e-mails extended the direction to remain reasonably available to periods beyond vacation by use of the words “reminder” and “may be called back to the work site at any time”. This ignores the words, “during this period”, also used in the e-mails. Grammatically and in context, “this” period is qualified by and expressly refers to “vacation”. A reasonable interpretation of these e-mails does not extend to include periods of time outside of vacation periods, such as periods when the complainant was simply not scheduled to work.

31Delaying the approval of a vacation request may result in the complainant being available to work his or her regularly scheduled hours. On call refers to the possibility of a recall to work outside of one’s regularly scheduled work period. Delaying approval of a vacation request does not amount to requiring an employee to be on call. That requires further direction. There is no evidence as to the employer’s stated expectation of the complainant for periods of time when he was simply not scheduled to work. The only evidence before me relates to vacation periods.

32Nor is the employer responsible for any of the costs, however described, associated with the complainant’s decisions regarding his vacation plans prior to any approval of the vacation request. The employer was motivated by a legitimate business need to be able to staff the institution should Correctional Officers not attend work. There was no evidence of arbitrariness in its decision-making with respect to vacation approvals. It simply chose to delay making those decisions until it could reasonably predict that job action was unlikely to occur in the period being considered for vacation. In these circumstances, unless and until the employer approves a request for vacation, any employee acts at their peril in committing to costs and/or plans that may go awry should the request not be granted or be granted too late. The employee bears the risk in circumstances where the request has not yet been approved pursuant to the employer’s reasonable consideration of its operational needs.

33A secondary question remains. Was the complainant required to be on call during his vacation periods? The e-mails were sent directly to the complainant as a member of the COM1 staff. The e-mails dated August 27, 2015, October 14, 2015, and December 15, 2015 each use the following language:

As a reminder, managers who are on vacation may be called back to their work sites at any time; therefore they are required to provide a telephone number at which they can be reached during this period.

34A less stringent requirement than stand-by duty, an employee is considered to be on call when he keeps himself reasonably available during the on-call period. On call is defined as a period of time, authorized by the supervisor, that is not a regularly scheduled work period. The statement in the e-mails that one may be called back to work while on vacation, sent by a Deputy Superintendent or forwarded from the Deputy Minister, reflects the requirement that the on-call duty had been authorized. I reject any argument that employees are simply being advised that they may be recalled to work from vacation and are not, during that period of vacation, then also on call. The requirement to provide “a telephone number at which they can be reached”, coupled with the statement that one may be recalled to work, establishes an expectation that the employee be available to receive the call, and, if directed, return to work.

35Although less clear, I am persuaded that the same may be said of the May 21, 2015 e-mail. While it required only that Sergeants leave a phone number where they could be contacted, it makes similar reference to encouraging the purchase of travel insurance, suggesting that there could be cause for the cancellation or interruption of any approved vacation.

36Vacation is a form of leave of absence with pay; granted so that one may be away from their otherwise regularly scheduled work period. An on-call period would not capture those hours that otherwise fall within the complainant’s regularly scheduled work period. However, the remaining hours of the day that fall outside of the regularly scheduled work period and that also fall within the vacation period would be captured by the directive in the e-mails and therefore by section 21.(2) of the Compensation Directive. Approval of the vacation request does not detract from any direction set out in the e-mails. The e-mails specifically contemplate being recalled to work during vacation, a period of time that by definition requires employer approval in order to be absent from work during one’s scheduled work period. I am persuaded that the e-mails establish that periods of vacation approved for the complainant also attracted a requirement for certain on call pay given the direction contained therein.

37However, the complainant was paid stand-by pay for his vacation period in November 2015 and for at least part of his December 2015 vacation period. He is not entitled to both. On-call is captured within the more onerous requirement of stand-by duty wherein one is “immediately” available for recall to work rather than simply “reasonably” available. The complainant is entitled to on call pay for those hours of his approved vacation that were not part of his regularly scheduled work period and for which he did not receive stand-by pay.

38The fact that e-mails advised that purchase of travel insurance should be encouraged may amount to bad advice, but it does not amount to the employer acting in bad faith. Bad faith requires malicious intent. It appears that travel insurance is not likely available to cover a scenario of being recalled to work from vacation or having to cancel a trip because one has been called back to work. However, whether the employer might be responsible for any cancellation or change costs in circumstances where vacation is approved but the employee is recalled to return to work either before or during the approved vacation is not before me as the complainant was not recalled to work.

39I find therefore that the employer required the complainant to be reasonably available for recall to work during his vacation periods in 2015 and he is therefore entitled to on call pay pursuant to section 21 of the Compensation Directive. During certain of these vacation periods, the employer paid the complainant stand-by pay. The complainant is not entitled to receive both. To the extent that there are hours outside the complainant’s regularly scheduled work period that fall within his approved vacation periods in 2015, and for which he did not receive stand-by pay, compensation for on call pay is owing to the complainant.

40I hereby remit the matter of that calculation to the parties. In accordance with the parties’ agreement, I will remain seized with respect to any issue arising out of the implementation of this award.