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4. PARAMEDIC MEAL PERIOD DAMAGE AWARD octroi de
Dommages relativement à la pause déjeuner des paramédics |
COMMITTEE RECOMMENDATION
That, subject to the 2007 year-end
close of operations, Council approve a one-time contribution from the City Tax
Rate Stabilization Reserve Fund of $408,111.75 to offset the costs associated
with the arbitration decisions on the Paramedics’ meal period award.
Recommandation
du comité
DOCUMENTATION
1.
Deputy
City Manager report dated 4 July 2007 (ACS2007-CPS-OPS-0001).
Report to/Rapport au :
Community and Protective Services Committee
Comite des services communautaires et de protection
and Council / et au
Conseil
4 July 2007 / le 4 juillet 2007
Submitted by/Soumis par : Steve Kanellakos, Deputy City
Manager/Directeur municipal adjoint,
Community and Protective Services/Services communautaires et de
protection
Contact Person/Personne ressource : Anthony
Dimonte, Chief, Ottawa Paramedic Service
Ottawa Paramedic Service/Services paramédic
(613) 580-2424 x22458, anthony.dimonte@ottawa.ca
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Ref N°: ACS2007-CPS-OPS-0001 |
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SUBJECT: |
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OBJET : |
octroi
de Dommages relativement à la pause déjeuner des
paramédics |
REPORT RECOMMENDATION
That, subject to the 2007 year-end close of
operations, Community and Protective Services Committee recommend Council approve a one-time
contribution from the City Tax Rate Stabilization Reserve Fund of $408,111.75
to offset the costs associated with the arbitration decisions on the
Paramedics’ meal period award.
RECOMMANDATION
DU RAPPORT
Que, sous
réserve de la clôture de l’exercice de 2007, les Services communautaires et de
protection recommandent au Conseil d’approuver une subvention ponctuelle de 408
111,75 $, prélevée de la Réserve de stabilisation des taxes de la Ville, afin
de compenser les coûts associés aux décisions arbitrales concernant l’octroi
d’une pause déjeuner aux paramédics.
BACKGROUND
In July 2005, CUPE Local 503 filed an expedited
grievance alleging that the City had failed to use its “best efforts” as
required by the Collective Agreement to ensure that the paramedics were
provided with uninterrupted meal periods during their shifts. The grievance
further alleged a breach of the Employment Standards Act (the “ESA”),
which required the Employer to ensure that no employee works more than five
consecutive hours without receiving an uninterrupted eating period of at least
one-half hour in duration. As a result of this expedited approach, the Ministry
of Labour assigned Arbitrator Joe Potter to hear the case.
The Union’s evidence focused primarily on the
fact that paramedics were not receiving uninterrupted meal breaks. In contrast,
the Employer’s evidence outlined the best efforts that were being made by
management to provide such meal periods. In addition, the City submitted a
great deal of evidence of how response times would diminish if paramedics were
unavailable for 30 minutes. Despite these diverse approaches, all witnesses
agreed that, given the nature of paramedicine, 100% compliance with the meal
period section of the Act was virtually impossible.
After reviewing the evidence, Arbitrator Potter
found as follows:
In the award’s aftermath, the City spent a
substantial amount of time considering how to comply with the award in a way
that minimized the threat to the safety of Ottawa residents. The City estimated
that it would have to immediately hire at least 50 new paramedics and purchase
8 additional ambulances at an estimated cost of $5 million annually.
Unsatisfied at the City’s efforts to respond to
the award, the Union filed a contempt application in July 2006. In response, the City filed for judicial
review and a stay application of Arbitrator Potter’s award.
On September 28, 2006 the parties met in the
Superior Court of Justice (Divisional Court) before Mr. Justice Albert Roy. It
was agreed that the court should first address the City’s stay application and,
depending on the outcome, then deal with the matter of contempt brought by the
Union.
On October 12th, 2006, Justice Roy
granted the City’s application to stay Arbitrator Potter’s award until the
Employer’s application for judicial review had been heard the following
spring.
On April 2, 2007, the City’s judicial review
was heard by the Divisional Court.
Briefly, the City sought to quash the Award on two grounds:
(a)
the arbitrator’s conclusion that work cannot be performed during an eating
periods under the Act is patently unreasonable;
(b) the
arbitrator’s conclusion that the City’s argument in the Collective Bargaining
Agreement to pay for all eating periods and to make best efforts to keep them
uninterrupted did not provide a greater benefit that the Act did, is
also patently unreasonable.
As noted above, the standard of judicial review
is “patent unreasonableness”. This onerous standard has been described in Ryan
v. Law Society (New Brunswick) as finding a defect in the decision
“so flawed that no amount of curial deference can justify letting it stand”.
On April 12, 2007, the Divisional Court
dismissed the City’s application for judicial review on both grounds. The Court
found that Arbitrator Potter considered the “whole package” offered by the Collective
Agreement and rationally decided that it did not provide a greater benefit in
terms of time off. The Court viewed this determination as a “judgment call that
lies deep within the expertise of the arbitrator” (paragraph 13). With respect
to the City’s argument that the Employment Standards Act does allow for
worked to be performed during a meal period, the Court held that the
Arbitrator’s reliance on Ministry policy was not clearly irrational.
As a result of the Court’s dismissal of the
City’s judicial review application, the parties returned to the issue of
damages to see if a resolution could be agreed upon. However, the first significant event occurred when the Provincial
Government amended the Employment Standards Act in response to the
City’s award in this case.
Employment Standards Act - Amendment
Over the last two years, municipalities have
opened a dialogue with the Ministry of Labour in the hopes of adding paramedics
to the list of exemptions under the Employment Standards Act. On October 23rd, 2006, Ontario
Regulation 491/06 was published on E-Laws.
This regulation, entitled “Terms and Conditions of Employment in Defined
Industries – Ambulance Services”, constituted an attempt to address concerns
raised by both employers and unions about hours of work and the meal break
provisions contained in the Employment Standards Act. Briefly, the regulation allows an employer
and a union to agree to a term in their collective agreement which will apply
instead of the meal period required in Section 20 of the Act. In effect, the language negotiated in the
CUPE 503 Collective Agreement (and upheld in the Potter award) involving “best
efforts” will prevail over the rigid and ultimately untenable meal period
provisions of the Act.
Written submissions on the issue of damages
were forwarded to Arbitrator Potter on January 15 and February 28, 2007. On April 20, 2007, Arbitrator Potter
released an award on this matter. At Paragraph 45, the Arbitrator awarded the
Paramedics time and one-half in the following manner:
Commencing on the date the grievance was filed, on each occasion where
there was a violation of Section 20 of the ESA, namely, where the
employee did not receive an uninterrupted 30-minute meal break for every five
hours of work, the employee is entitled to receive time and one-half their
applicable hourly rate of pay for the meal break that was missed. Given the
fact the employee has already been compensated at straight time for this meal
break, the employee is entitled to an additional one-half time their applicable
hourly rate for any missed meal break(s). If the City so chooses, this
compensation can be in the form of time off in the amount of 30 minutes for
each violation of the ESA.
Whereas
this grievance was originally filed on July 11, 2005, the City's liability
ended on October 23, 2006 (being the date on which Ontario Regulation 491/06
was published on E-Laws).
As the parties were unable to reach an
agreement based on the above-noted formula, a subsequent award on damages was
issued on July 4, 2007. Arbitrator
Potter’s most recent award calls for the City to pay each paramedic on strength
throughout the period of liability (July 11, 2005 to October 23, 2006) and who
continues to work as a paramedic upon issuance of the order the amount of
$1,300, less statutory deductions. Those paramedics hired during the period of
liability will be entitled to a prorated share of that amount, based on the
time they worked. Paramedic Services has calculated this amount to be
$408,111.75 Paramedic Services recommends this amount as an equitable
resolution to this issue.
CONSULTATION
No external public consultations
have been undertaken as this report is with respect to an arbitrator's award.
FINANCIAL IMPLICATIONS
Damages will amount to $408,111.75.
With
the approval of the recommendation contained
in this report and subject to
the 2007
year-end close of operations a contribution from the
City from the City Tax Rate Stabilization
Reserve Fund would
be made to offset
the costs associated with the arbitration decision on the Paramedics paid lunch
break.
SUPPORTING DOCUMENTATION
Document
1- May 17, 2006 order from Arbitrator Potter
Document
2- Ontario Regulation 491/06
Document
3- April 12, 2007 Divisional Court decision
Document
4- April 20, 2007 Order from Arbitrator Potter
Document 5- July 4, 2007 Order for Damages – Available
in paper format only
DISPOSITION
Upon Council approval of the recommendation,
the order for damages will be implemented.