Contract didn’t refer to second call, employer must pay twice
A New Brunswick worker who received a second call-in assignment while on the way to the first is entitled to a three-hour minimum pay for each call, an arbitrator has ruled.
Camille LeBlanc worked as a maintenance repair worker for the New Brunswick Department of Social Development. He was responsible for carrying out repairs to low rental units around Moncton, Sackville, and other nearby cities.
The collective agreement included a provision governing call-ins stipulating that any employees called in to work after leaving their place of work were entitled to time-and-a-half, with a guarantee of at least three hours’ pay at the overtime rate. It also said that “when the work for which the employee is called back is completed, the employee shall be allowed to leave.”
On the evening of Oct. 16, 2018, LeBlanc was at home on standby when he received a call to respond to an emergency. While driving to the location, he received a second call about a power outage at another location. LeBlanc continued to the first location, completed the work, and then drove to the second location. The second task was completed about 73 minutes after the initial call.
The worker prepared a pay sheet and listed the two call-ins separately. When he submitted the form for payment, his supervisor told him that he would only be paid the overtime premium for one call-in because he had only left home to perform work once.
LeBlanc and the union filed a grievance claiming that the department had violated the collective agreement by not paying LeBlanc the three-hour minimum “call-in premium pay” for each call. They argued that the purpose of the premium pay was to compensate employees for the inconvenience of responding to a call at any hour and two calls created more inconvenience deserving of compensation. It added that the collective agreement stated that once the work for which the employee was called in was completed, the employee was allowed to leave the workplace. A second call at a different location was a different workplace and a different call-in, the union said.
The department maintained that LeBlanc was only entitled to one call-in payment because he received the second call before he had left the workplace and wasn’t further inconvenienced by the second call. He was already out in the workplace, which in this case encompassed a geographical area with several properties, the department said.
The arbitrator noted that since New Brunswick was an officially bilingual province, the collective agreement was in both English and French. To determine the intentions of the parties, both versions had to be reviewed to determine a “shared meaning,” said the arbitrator.
While the English version of the call-in provision concluded with the statement that the employee was “allowed to leave” after completing the assigned work, the French version more specifically stated that the right to leave was automatically given once the assigned task was completed. This was a clearer expression of the parties’ intent, the arbitrator said.
The arbitrator found that the collective agreement only addressed the right of the employee to leave the workplace when the work was completed and didn’t refer to a situation where a second call-in is received before the worker leaves the workplace. Without language to the contrary, the second call should be treated as a separate call-in under the collective agreement’s language, the arbitrator said.
“They could, for example, have stated that if a second call is received while the first call is still not completed, then the employee will not be entitled to the payment of a second ‘call-in premium’ even if the work is at a different location,” said the arbitrator. “However, they did not do so.”
The arbitrator ordered the department to pay LeBlanc the premium pay for the second call-in.
Reference: CUPE, Local 1190 and New Brunswick (Treasury Board). Michel Doucet — arbitrator. Michelle Brun-Coughlan for employer. Monique DesRoches for employee. July 30, 2021. 2021 CarswellNB 377