No reporting pay for workers sent home during power outage

Reason for lack of work outside of employer’s control

An Ontario employer does not have to pay unionized employees for a shift after they arrived at work, were sent home and then told to come back a few hours later, an arbitrator has ruled.

Gentek Building Products is a manufacturer of vinyl windows in London, Ont. It has a busy production season running from April to October each year and employs about 150 unionized workers at its plant. The workers work nine- or 10-hour shifts each day, Monday through Friday.

Gentek’s collective agreement with Unifor Local 27 had a clause covering reporting pay which stipulated “an employee called to work or permitted to go to work without having been properly notified that there will be no work, or insufficient work shall receive a minimum of four hours' work or pay at his basic hourly rate, unless the lack of work has arisen by reason of a labour dispute or other conditions beyond the control of management, or unless he refused to do any work assigned to him.”

The clause also required Gentek to attempt to contact all employees scheduled to work at least two hours before the start of their shift if the “entire plant is shut down,” or else the employees would be entitled to the four hours' pay.

Gentek’s plant maintenance manager received a call from the security company responsible for looking after the plant at about 2:40 a.m. on June 23, 2015, telling him the power was out at the plant. The maintenance manager quickly left for the plant and arrived about 20 minutes later. About one-third of the plant had electricity, which only resulted in some of the lights inside working. The rest of the plant wasn’t functioning.

Another half-hour later, around 3:35 a.m., the maintenance manager called an electrical contractor for an electrician to determine the source of the power outage — whether it was within the plant or an issue with the utility company, London Hydro.

London Hydro indicated it wouldn’t come to the Gentek plant until it was determined the source of the outage wasn’t within the plant.

Shortly after 4 a.m., the electrician concluded the power outage was due to an issue with London Hydro, so the maintenance manager called the utility back. However, London Hydro wouldn’t provide an estimate as to when power would be restored. One hour later, the utility still couldn’t come up with an estimate.

No electricity when employees show up for work
Production employees began showing up for the day shift around 5:30 a.m., but the Gentek plant was still without electricity. Management told them there wasn’t any power to operate the machines, so they should go home and return to work for 9:30 a.m. There was still no estimate from London Hydro when the power would be restored. As it turned out later, the power outage was from a transformer failure. The electrical contractor later confirmed the outage was not caused by any electrical issues within the Gentek plant.

The power came back on at the plant at about 6:40 a.m. and London Hydro workers arrived soon after. The day shift workers began work at 9:30 a.m. and worked the balance of their shift.

The union filed a grievance, claiming under the collective agreement the employees who reported to work on time and were told to go home until 9:30 a.m. were entitled to four hours’ pay because they didn’t receive two hours’ notice of the plant shutdown. It pointed out that Gentek didn’t make any attempt at all to contact the day shift employees before they arrived at 5:30 a.m.

Arbitrator Jasbir Parmar agreed Gentek didn’t make any attempt to contact the day shift employees when the power went out at the plant, even though there was no timetable for when the power would be restored. Even though management was at the plant, from the perspective of the employees, the plant was shut down, said the arbitrator.

However, Parmar pointed out that the collective agreement provision on reporting pay included an exception. This exception was explicitly set out to be “if the lack of work has arisen by reason of …conditions beyond the control of management.” In this case, the reason for the lack of work that morning was a power outage that was the responsibility of London Hydro and beyond Gentek’s control. As a result, Parmar found this fell within the exception spelled out in the collective agreement.

Parmar concluded Gentek was not obligated to pay the employees who showed up for work on the morning of the power outage four hours’ pay and dismissed the grievance.

“I appreciate that employees were inconvenienced on that day by having to travel some distance to report for work, only to be told to return hours later. Furthermore, this inconvenience could have been addressed through actions of the company,” said Parmar.

“However, given the language of the collective agreement and the specific circumstances behind the lack of work, there is no requirement for the company to pay the employees reporting pay on that date.”

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