FPSLREB Decisions

Grievances referred to adjudication

[1]   Stephen Roach is employed as the Chief Operating Engineer (COE) at Canadian Forces Base (CFB) Gagetown, New Brunswick. He is a member of the Operational Services Group bargaining unit. As the COE, he supervises the operations of the central heating plant.

[2]   On December 12, 2001, he filed a grievance alleging a violation of article 31 (standby provisions) of the collective agreement between the Treasury Board and the Public Service Alliance of Canada for the Operational Services Group signed on November 19, 2001 and has requested that he receive all pay and benefits retroactive to the commencement of the heating season of September 1997.  

[3]   On September 16, 2003, he filed a second grievance, claiming that, with the coming into force of a new job description, which made call-backs mandatory, he should be placed on standby and compensated accordingly, retroactive to the effective date of the job description.        

[4]   At all relevant times, article 31 of the collective agreement read as follows:

ARTICLE 31

STANDBY

. . .

 31.01   Where the Employer requires an employee to be available on standby during off-duty hours, such employee shall be compensated at the rate of one-half (1/2) hour for each four (4)-hour period or part thereof for which the employee has been designated as being on standby duty.

31.02

(a)	An employee designated by letter or by list for standby duty shall be available during his or her period of standby at a known telephone number and be available to return for duty as quickly as possible, if called.
(b)	In designating employees for standby, the Employer will endeavour to provide for the equitable distribution of standby duties.
(c)	No standby payment shall be granted if an employee is unable to report for duty when required.
(d)	An employee on standby who is required to report for work and reports shall be compensated in accordance with clause 30.01 or the reporting pay provisions found in the relevant Group Specific Appendix, and is also eligible for reimbursement of transportation expenses in accordance with clause 29.10.

[5]   On April 1, 2005, the Public Service Labour Relations Act, enacted by section 2 of the Public Service Modernization Act, S.C. 2003, c. 22, was proclaimed in force.   Pursuant to section 61 of the Public Service Modernization Act, these references to adjudication must be dealt with in accordance with the provisions of the Public Service Staff Relations Act, R.S.C., 1985, c. P-35 (the "former Act").

[6]   The grievor requested the exclusion of witnesses. The employer objected on the grounds that it did not see the need for this procedure. As one cannot always foresee the issues of credibility that may arise, I granted the request and ordered the exclusion of witnesses.    

Summary of the evidence

[7]   Mr. Roach has been employed at CFB Gagetown since 1997 as the COE.  At the time of hiring, he was given a job description. This job description was reviewed and signed by Mr. Roach and his supervisor in December 2002, with an effective date of September 1, 2002. The job description was amended in March 2003, with an effective date of September 1, 2002. The grievor refused to sign the amended version because the employer had replaced the following sentence:

. . . During the heating season, the incumbent is responsible at all times for the safe operation of the heating plant and must be available and shall return to work at any time to ensure services are returned to normal as soon as possible. . . . .

with the following ones:

. . . During the heating season, the incumbent is responsible at all times for the safe operation of the heating plant. If able to be contacted, and depending on the degree of emergency (such as safety of the plant, safety of personnel or for any operational requirement), the incumbent must make himself available and shall return to work to ensure services are returned to normal as soon as possible. . . .

[8]   The grievor refused to sign the amended version, as he believed that the amendment reduced the thoroughness of the job description. He indicated that the definition of “chief power engineer” (CPE) found in the Heating Plants and Power Plants Regulations – Boiler and Pressure Vessel Act (the “provincial regulations”) (Exhibit G-5), New  Brunswick Regulation 84-175 (O.C. 84-607), reads as follow:

. . .

“chief power engineer” means a power engineer who at all times has charge of and the responsibility for the safe operation of a heating plant. . . .

. . .

[8]   The grievor further testified that the “shift engineer” definition in the provincial regulations does not contain the words “at all times” and that a shift engineer is not responsible for safety. He indicated that under section 22 of the provincial regulations, the shift engineer must report to the CPE any condition that may impair the safety of the heating plant.

[10]   The grievor indicated that, in September 2000, his request for standby pay was granted by his supervisor, Captain Desaulniers, with the understanding that the grievor would receive this allowance for the heating season running from September 2000 to May 2001. He also understood that the situation would be reviewed the following year and he was asked to keep a logbook of calls received at home. He further understood that, should the situation remain the same, standby pay would be renewed the following season.

[11]   As a result of this increase in revenue during the 2000-2001 heating season, and believing that standby pay would continue the following season, the grievor purchased a van. The grievor kept a log of calls received, as requested, which was adduced as evidence.

[12]   In early September 2001, the grievor again requested standby pay for the heating season that was about to start. Captain Desaulniers declined his request. The grievor, affected by the refusal, took some stress leave and pursued an exchange of correspondence aimed at changing his supervisor’s decision.   During that exchange of correspondence, the grievor was advised that, should he refuse to respond to calls, to work overtime or to troubleshoot equipment, he would be disciplined.   The grievor understood that he was, therefore, under an obligation to change his plans, should he be reached. He also indicated that, if management believed that his not reporting to work had the possibility of affecting the safety of employees, then management should ensure his availability to return to work.

[13]   The grievor also presented evidence establishing that, during a two-week absence, the employer replaced him with an acting COE during the first week and, when no shift engineers agreed to be the acting COE during the following week, the employer made the shift engineers of every shift as acting COE, thus ensuring the presence of a COE 24 hours per day.

[14]   The evidence also revealed that the Treasury Board Boiler and Pressure Vessels Directive (the “Treasury Board directive”), which is part of the collective agreement, requires the employer to adhere to the standard established under the applicable provincial statute.

[15]   Under cross-examination, the grievor acknowledged that he had drafted the job description containing the sentence that was subsequently amended. He also acknowledged that he had presented two reasons to justify his request for standby pay in 2000. The first reason related to problems with the new computer system and the other, to the change from oil to natural gas. The grievor acknowledged that it was easier to work with natural gas and that staff would not require a two-year period to attain a comfort level in this regard.

[16]   The grievor also testified that he was never required to carry a cellular phone or a pager, nor was he advised or asked to sit by the telephone or to limit his consumption of alcohol. The grievor indicated that the provincial boiler inspector had advised him that should he, as a COE, receive a call and refuse to work, the provincial boiler inspector would call the Royal Canadian Mounted Police.

[17]   As far as the grievor was concerned, the New BrunswickBoiler and Pressure Vessel Act (the “provincial legislation”) made him responsible for the central heating plant safety at all times and he was under an obligation, as soon as the phone rang, to answer the call and make a determination as to the nature of the request. By doing so, he was returning to work. He indicated that, when shift engineers could not reach him the first time, they would try and try again until they did.

[18]   In re-examination, the grievor confirmed that the change to natural gas had been fully implemented by May 2001.

[19]   The employer called Captain Desaulniers to testify.   The witness indicated that he was the Utility Officer at CFB Gagetown from July 1998 to July 2004. As such, he oversaw the administrative and financial management of a water plant, a sewage treatment plant and the central heating plant and was the grievor’s supervisor.

[20]   He indicated that the grievor’s hours of work were from 8:00 a.m. to 4:30 p.m. In reply to the question as to whether the grievor would be required to return to work during off-duty hours, he responded that it depended on the urgency of the call received at home. Some calls might have to do with a simple change of pump while others might be of a more serious nature.

[21]   The witness testified that two reasons had prompted him to agree to standby pay for the 2000-2001 heating season.   The first one was the introduction of a new computer system and the second one was the change to natural gas. He indicated that, in assessing the situation for the subsequent year, he took into account the fact that the shift engineers had been trained on the new computer system during the summer of 2001.

[22]   Captain Desaulniers further indicated that he had never required the grievor to carry a pager or a cellular phone or to limit his consumption of alcohol. He recalled only two emergencies of a significant nature that required the presence of the grievor: the loss of make-up water and the flooding of tunnels. Both occurred during the 2000-2001 season.

[23]   The witness testified that the obligation to be responsible for the safety of the central heating plant at all times did not mean that the grievor had to be available at all times and claimed that the provincial authority supported his views.

[24]   Captain Desaulniers indicated that if a shift engineer contacted the grievor, the grievor could refuse to return to work. However, he added that he required the grievor to respond to calls when he was reached.

[25]   At the time that he reviewed the job description signed in December 2002, Captain Desaulniers had been reviewing some 40 job descriptions and signed the grievor’s job description without noting the change to the wording on which the grievor relied. When Captain Desaulniers was informed of that in March 2003, the job description was amended.

[26]   Upon review of the log kept by the grievor during the 2000-2001 heating season, Captain Desaulniers recognized that he had approved standby pay, but noted that not all the calls were related to the immediate operation of the plant. Some had to do with the ongoing operations and could have waited for the grievor’s return to work the next working day.

[27]   The witness did not have any discussions with the grievor with regard to the grievor’s purchase of a van. He had told the grievor that the situation with regard to standby pay would be reviewed each year.

[28]   Under cross-examination, Captain Desaulniers acknowledged that the sentence found in the job description signed in December 2002, indicating that the grievor must be available and shall return to work, did place the employee on standby. He also identified his signature beside the statement certifying that the information contained in this job description represented an accurate and complete description of the duties of the position. He also acknowledged that the definition of CPE found in the provincial regulations means that a CPE has, at all times, charge of and the responsibility for the safe operation of a heating plant.

[29]   The witness indicated that the grievor had always performed his duties and that this case had nothing to do with his performance or work ethics.    

[30]   In response to the question as to why he had put the grievor on notice of disciplinary action should he refuse to respond to trouble calls, to work overtime or to troubleshoot equipment, being mechanical or computerized, the witness indicated that it was in response to an e-mail that the grievor had sent on September 25, 2001. He added that the grievor had to be available, but not at all times.   The witness indicated that he did not expect the grievor to stay at home but that, should the grievor receive a call or should he be contacted, he would have to make himself available.

[31]   Captain Desaulniers also acknowledged that, under the provincial legislation, the grievor would be liable should a safety concern arise and should it be impossible to reach him.   However, he added under re-examination that the employer would defend the grievor and indemnify him.

[32]   Under re-examination, the witness indicated that shift engineers can contact the Utility Officer or the chief boiler inspector should they not be able to reach the CPE.

Summary of the arguments

[33]   The grievor presented the situation that he faced as one where the employer compels him to return to work when he is called and one where the provincial regulations compel him to be available after hours. He stated that clause 31.01 of the collective agreement indicates that, when the employer requires an employee to be available during off-duty hours, the employee should be compensated at the prescribed rate. The key words are “prescribed” and “be available”.  

[34]   Clause 31.02 of the collective agreement provides that an employee designated by letter or list shall be available during his or her period of standby at a known telephone number and be available to return for duty as quickly as possible if called.

[35]   The grievor argued that Captain Desaulniers, by signing the job description, confirmed the statement that placed the grievor on standby and that this constituted a requirement to be available at all times.   Furthermore, he argued that the definition of CPE in the provincial regulations required such a person to have, at all times, charge of and the responsibilities for the safe operation of the central heating plant. He stated that, while a shift engineer may assume the duties of the CPE in his absence, the shift engineer does not have the responsibilities of the safe operation of the central heating plant and is not required to be in charge at all times. He mentioned that Captain Desaulniers confirmed that the CPE could be held liable should an accident occur.

[36]   The logbook compiled by the grievor during the 2000-2001 heating season could be seen as an accurate example of the calls that the COE would have to answer in his off-duty hours.   These calls averaged more than one call per week and underlined the necessity of providing this coverage. When the grievor expressed reservations about responding to calls because he had been refused standby pay, he was put on notice by the employer that any refusal to respond to calls would result in disciplinary action.

[37]   The grievor argued that the replacement of the COE during his absence with around-the-clock acting COEs demonstrated the necessity for availability at all times. He further stated that the ability to contact the Utility Officer or the provincial boiler inspector is not relevant, as the Utility Officer is not certified under the provincial regulations and the provincial boiler inspector is an employee of the regulating body and would not necessarily be aware of the actual operations and equipment at CFB Gagetown.

[38]   Should an accident occur, the COE would be held liable and could potentially loose his certification, and there is nothing that the employer could do to reinstate the grievor.  

[39]   In support of his argument, the grievor submitted Lee and Woollard v. Treasury Board (Fisheries and Oceans), PSSRB File Nos. 166-02-22844 and 22845 (1993) (QL).   In that case, Mr. Lee and Ms. Woollard were designated employees who, within two-hour notice, had to be available during a strike or face fines, and were found to be entitled to standby pay. The grievor argued that he was similarly compelled to return to work.

[40]   The grievor quoted from Séguin v. Treasury Board, PSSRB File No. 166-02-23982 (1994) (QL), where the adjudicator found that “call-back” is an action taken by the employer and “returning to work” is an action taken by the employee. The grievor suggested that his situation was more than a mere call-back situation as he was compelled to return to work.

[41]   The grievor also relied on Foerger v. Treasury Board (Transport Canada), PSSRB File No. 166-02-20623 (1991) (QL). In this case, the employer argued that there was no need to restrict the freedom of a seaman by placing him on standby duty, as the ship was already at sea. The adjudicator ruled that Mr. Foerger was entitled to standby pay, as it had been announced that the ship was on standby duty as a search and rescue vessel. The grievor argued that he was in a similar situation and compelled to return to work.   

[42]   The grievor asked that his grievances be allowed and that he receive all pay and benefits lost as a result of the denial of standby pay, retroactive to September 1, 2002, the effective date of the job description.     

[43]   The employer argued that the grievor failed to meet the onus of showing that a breach of the standby pay provisions of the collective agreement had occurred. While the grievor might think that he should have been on standby, he did not show that he was.  

[44]   Five key points were underlined. There was no indication of standby status in the actual situation. The grievor could not take it upon himself to impose standby status on the employer. This was not a matter of a provincial requirement, but a requirement that only the employer could impose. There was no basis for an estoppel argument. The fact that call-back is mandatory does not confer standby status.

[45]   The employer submitted that article 31 of the collective agreement specifically reads, “Where the Employer requires an employee to be available on standby during off-duty hours. . . .”

[46]   Except for the 2000-2001 heating season, the employer never required the grievor to be on standby, as was demonstrated by the e-mail messages exchange. There were no mixed messages to the grievor with regard to the requirement to be on standby.

[47]   The statement in the grievor’s job description is a red herring.   The grievor wrote the job description and, at the time, Captain Desaulniers reviewed 40 job descriptions and missed the amendments that the grievor had made to the document. When the changes were brought to Captain Desaulniers’ attention, he promptly removed them as he was not requiring the grievor to be on standby.

[48]   The grievor was subject to call-back if he was reached. He was at no time required to carry a cellular phone or a pager. He was never asked to sit by the telephone, nor was he told that he should not consume alcohol in case of an emergency. He was never told that he would be disciplined if he could not be reached.

[49]   The first case mentioned in support of the employer’s decision was Kettle v. Treasury Board (Transport Canada), PSSRB File No. 166-02-21941 (1992) (QL).   In that case, Mr. Kettle was denied standby pay on the basis that he was free to do whatever he wished during his off-duty hours; he was never told that he would be disciplined if he could not be reached; he did not have to sit by the telephone and had no drinking restrictions placed on him.

[50]   The employer argued that, in the present case, it was the grievor who took upon himself to insist that he should be placed on standby. He constantly felt that he was responsible for the safety of the central heating plant and expected the shift engineers to call him at all times when something went wrong at the plant. The employer reiterated that the grievor was never required to be on standby. In uncontradicted testimony, Captain Desaulniers testified that there were only two instances of genuine emergencies that affected the safety of the central heating plant.     

[51]   While the grievor insisted that he should be on standby for reasons related to the computers, he never recommended that shift engineers receive training on computers in spite of the fact that, according to the job description, he was responsible for training.

[52]   The employer further noted that the grievor had insisted in a memorandum dated August 30, 2000 (Exhibit E-5) that standby was required for the next two years because of the change to natural gas. Yet, under cross-examination, the grievor admitted that natural gas was not terribly complicated to operate; it was as simple as flicking a switch. The employer maintained that the grievor was informed of his supervisor’s and Mr. Ross’ (the provincial boiler inspector) interpretation of the provincial regulations but preferred his own and continued to insist.

[53]   The employer argued that the grievor’s case is similar to Parcells v. Treasury Board (Revenue Canada – Customs & Excise), PSSRB File No. 166-02-15060 (1985) (QL).   In that case, a customs officer was required to testify in court, at some time during a 10-day period. For some of the days in question she was off duty. She restricted her activities and stayed near a telephone until she was called. The adjudicator concluded that, while Ms. Parcells’ attitude was commendable, and while not making herself available would have seemed to defeat the purpose of the reminder notices that the employer had sent to her, the undisputed fact was that the employer never required her to make herself available.   Therefore, the adjudicator could not find that Ms. Parcells was entitled to standby pay.

[54]   In Mullins v. Treasury Board (Transport Canada), PSSRB File No. 166-02-17752 (1989) (QL), the adjudicator ruled that an employee cannot confer a liability upon the employer by unilaterally deciding to assume responsibilities that have not been assigned to him by the employer.

[55]   The employer argued that the provincial requirements are an issue for the employer and not a matter of labour relations. The employer had taken steps to obtain information from the provincial authority and made its decision accordingly. The employer submitted that, even if it was mistaken, it was its decision to make. The employer stressed that it would be ultimately responsible because it would have to defend the grievor. The possible loss of licence by the grievor is not an issue before the adjudicator.

[56]   As for the question of estoppel, the employer suggested that the evidence from Captain Desaulniers was not questioned under cross-examination and must stand. It revealed no unequivocal promise that could form the basis for a promissory estoppel.

[57]    Nav Canada and I.B.E.W., Loc. 2228 (Mews) (Re), 90 L.A.C. (4th) 354, makes a clear distinction between call back and standby. The arbitrator wrote: “. . . I believe that [the bargaining agent] was confusing two very different matters; the availability of the grievor to receive a telephone call and his availability to report for work after having been ordered to do so.”   The arbitrator found that, while refusing to report to work after receiving a call may lead to discipline, it does not entitle a person to standby pay.

[58]   The employer submitted extracts from Canadian Labour Arbitration, Third Edition, to the effect that arbitrators have generally recognized that, unless the terms of the agreement specifically provide that overtime is voluntary, employees will be obliged to perform overtime work (paragraph 5:3210).  

[59]   In response to the arguments presented by the grievor, the employer indicated that shift engineers were responsible for all of the duties of the COE in his absence and that this did not exclude the safety responsibilities for the central heating plant. The employer acknowledged that it would be liable for any breach of the provincial regulations and would indemnify the grievor accordingly.

[60]   The employer submitted that the telephone log kept by the grievor dealt only with the events during the season for which he received standby pay and that no evidence was tendered with regard to the calls received the following years. Furthermore, the number of calls received was irrelevant.

[61]   The employer submitted that the fact that it paid employees around the clock during one week of the grievor’s absence was to entice employees to agree to perform acting COE functions.

[62]   The employer added that the Treasury Board directive relates to the operation of a heating plant and is not a document in respect of labour relations.

[63]   The employer distinguished the three cases submitted by the grievor.   Lee and Woollard (supra) dealt with employees designated pursuant to the former Act, which is not the case with the grievor.  Séguin (supra), dealt with the issue whether an employee had to report physically to her office to be entitled to call-back pay. In Foerger (supra), the employee was on board a ship and had been advised of the requirement to be on standby.

[64]   The employer asked that the grievances be denied.

[65]   In reply, the grievor argued that the provincial regulations were clear and that the CPE was responsible at all times for the safe operations of the central heating plant. Captain Desaulniers, in his testimony, acknowledged that the CPE would be liable if an accident occurred and he did sign a job description that placed the grievor on standby.

[66]   The grievor requested that the grievances be allowed.   

Reasons

[67]   To succeed with his argument of detrimental reliance on a promise not kept, the grievor needed to establish that the employer had made an unequivocal promise to him.   In reviewing the evidence, I conclude that the employer’s promise was to review the situation after one year and to maintain standby pay for a second year, if the situation had not changed. This promise was kept: the employer conducted a review and the conclusion reached was that the situation had changed. The evidence revealed that shift engineers had received training during the summer of 2001 on the computer system. There is no case here to be made of a promissory estoppel. The promise was not to maintain standby pay under any circumstance.

[68]   In reviewing the evidence and the arguments before me, I have come to the conclusion that the grievor has not established that the employer’s refusal to place him on standby is in contravention of the collective agreement.

[69]   The onus of establishing a claim to standby pay rested with the grievor. In order to make a successful claim for standby pay, the grievor needed to establish that he was actually required to be on standby during specific periods.

[70]   The evidence before me is that the provincial regulations define a CPE as “. . . a power engineer who at all times has charge of and the responsibility for the safe operation of a heating plant. . . . ” The Treasury Board directive, which is part of the collective agreement, stipulates that the standards for control and supervision of the operation of such equipment are those standards established under the applicable provincial statute (section 1.5.3).  

[71]   For the periods in dispute, the employer had not specifically required the grievor to be on standby despite his numerous requests to that effect. Quite to the contrary, the employer denied these requests except for the 2000-2001 heating season, where the issue was not in dispute.

[72]   The jurisprudence is unequivocal in specifying that an employee cannot confer a liability on the employer by unilaterally assuming responsibilities not assigned by the employer. However, one could conclude that it is not the grievor who conferred on himself the requirement of being available at all times, but that this requirement results from the employer appointing the grievor CPE, where those duties are subject to the provincial regulations that require such availability.

[73]   The grievor failed to demonstrate what being a CPE entails or what ‘having charge of and the responsibility for the safe operation of a heating plant at all times’ really means. Does ‘having charge at all times’ mean that the grievor must be reachable at all times? Does it mean that the provincial authority would expect him to carry a pager or leave a telephone number where he could be reached rapidly in case of an emergency? Do the provincial regulations have the effect of curtailing the grievor’s whereabouts? If this were the case, then I might have concluded that, in effect, this requirement stems from the CPE duties themselves. The evidence presented falls short of answering these questions.

[74]   Furthermore, the provincial regulations define a shift engineer as having “. . . the authority to perform the powers and duties of the chief power engineer when the chief power engineer is absent from the plant. . . .” (Exhibit G-5).

[75]   The grievor did not present any direct evidence with regard to what the provincial authority expected, nor did he indicate what measures he took to meet what he perceived were his obligations during the periods for which he was requesting standby pay and what actually occurred during those periods. The logbook that he submitted covered only a period for which he received standby pay.

[76]   The grievor relied on the wording of his job description signed in December 2002 to support his position that he was compelled to make himself available. Had he raised this issue at the time the initial statement referred to in paragraph 7 of this decision was included in the job description, the content of the job description might have carried some weight. However, he raised this issue much later during the heating season. As soon as he did so, the employer reacted by amending the job description.

[77]   I am also of the view, found in the jurisprudence submitted by the employer, that there is a distinction between standby and call-back. A mandatory call-back does not necessarily entail the payment of standby pay. The requirement to report to work if reached, although it may lead to discipline, does not by itself allow a grievor to claim standby pay.  

[78]   For all the above reasons, I make the following order.

[79]   The grievances are denied.

January 12, 2006.

Georges Nadeau,
adjudicator