Voluntary list gave employees option to refuse calls
Employees who agreed to be on a voluntary after-hours call-out list were not entitled to standby pay when they weren’t working, according to an arbitrator.
Tracy MacIntosh and Frank Snow worked in the operations and maintenance (O&M) division of the University of Calgary’s facilities management department — MacIntosh as a plumber/steamer/gasfitter with 14 years of service and Snow as an electrician with 20 years of service.
The university’s collective agreement provided for call-out pay and standby pay. The former was payable to employees “called to work at a time outside normal working hours” for a minimum of four hours at the applicable overtime rate, while standby pay involved one-half hour’s pay or time in lieu at the employee’s regular rate for the first five hours on standby and an additional one-half hour’s pay for each subsequent three hours or portion thereof — with the rate doubled on paid holidays. Employees on standby had to be available for “immediate return to work during hours that are not the employee’s regularly scheduled work hours” and, if called in, they would be paid the call-out pay rates. The standby pay provision stated that generally, employees weren’t expected to be on standby but “it may be necessary” in the event of an emergency.
In April 2015, the university’s manager of maintenance and plumbing asked for volunteers to be added to an on-call list. Call-outs to those on the list would be “accepted or declined at the discretion of the individual employee fielding the call” and those accepting calls would receive call-out pay. Both MacIntosh and Snow asked to be put on the list.
The call-out roster included the stipulation that those on the list were “not being paid to be on standby so they are not required to respond.” If someone on the list refused a call, the next person would be called. However, both Snow and MacIntosh believed that being on the call-out roster meant they had to be ready to return to work and they would be paid standby pay for their scheduled roster hours.
Snow received several calls over the next three months and answered every one. He claimed and received standby pay for May, June, and July, but in August his claim was denied by his supervisor. He filed a grievance.
MacIntosh also filed a grievance, arguing that the call-out roster was “in reality a standby list” because they were “readily available to return to work after hours in the event they were called in for an emergency.”
The arbitrator noted that there was evidence both Snow and MacIntosh received standby pay during certain periods of time, but these were short periods over the course of their service. It was only the controls group that had a consistent standby list.
The arbitrator found that the collective agreement clearly set out call-out pay and standby pay as “two separate items under two separate headings.”
The standby pay provision even stated that employees weren’t expected to be on standby and it would be rare occasions in which some might be placed in that position. It would be a stretch to infer that his applied to all employees appearing on a rotating call schedule, the arbitrator said.
The arbitrator also found that the manager clearly set out the intent and purpose of the call-out roster — it was not intended to be a mandatory call-out list and it stated that “call-outs will be accepted or declined at the discretion of the individual employee.”
“The evidence supports the conclusion that the main intent of the roster was to provide an after-hours schedule, on a quarterly or so basis, listing those volunteer O&M employees by occupation who were designated to be on call-out and those on standby,” said the arbitrator in dismissing the grievances.
Reference: The Governors of the University of Calgary and Alberta Union of Provincial Employees, Local 052. John Moreau — chair. Thomas Ross for the employer. Liane Lawford, Karen Thibault for the employees. 2020 CanLII 21328 (Alta. Arb.)
