City of Vancouver (Fire and Rescue Services) and Vancouver Firefighters' Union, Local 18
, (HUSAR Overtime Grievance - Calgary Floods 2013)
2016 CanLII 20561 (Hall)
On April 6, 2016, Arbitrator John B. Hall issued his decision on a grievance arising out of the deployment of Vancouver Firefighters on the Heavy Urban Search and Rescue Team (HUSAR) to respond to the Calgary Floods in 2012. A total of 30 Union members were deployed in two "waves" in order to assist with the aftermath of the flooding. Some of the members had been on duty at the time of their deployment and others had been off-duty, including some who were on vacation. While in Calgary, the HUSAR Team members worked every day of the deployment, in alternating day and night shifts, and were paid a minimum of 12 hours per day. While not actively working, Union members were prohibited from leaving the Base of Operations.
The grievance raised four key issues: whether members were owed overtime for all the hours they were ordered to remain at their base of operations, whether the Employer must pay "callout" pay to HUSAR members deployed to Calgary, whether the Employer has the obligation to call HUSAR members into work in order of seniority, and lastly whether the Employer's rescheduling of vacation as a result of the deployment was an unreasonable exercise of managerial discretion.
Regarding the issue of overtime pay, the Employer argued that the members were not "working" on their time off, and therefore not entitled to this pay. Further, the Employer argued that the HUSAR Team members were free to do as they wished on the base, and that the primary reason for their confinement was due to safety concerns. The Union argued that the safety concerns of the Employer were unsubstantiated, and that the Union members were under the control and direction of the Employer during the entire period of confinement. The Union sought wages in accordance with the overtime and extra shift provisions of the Collective Agreement. Arbitrator Hall accepted the Union's argument and found that the Employer must compensate the Union's HUSAR Team members at the applicable overtime rate, for the hours they spent confined to the base while off duty.
With respect to the issue of call out pay, the Union argued that members deployed in response to the Calgary Floods were entitled to "callout" pay under Article 8, based on past practice evidence that a callout was a "request" rather than a "requirement" to attend work, and alternatively, that the past practice raises an estoppel argument. However, Arbitrator Hall considered the divergent understandings of the word "mandatory" expressed by both parties' witnesses, and found that the Union was precluded from relying on the extrinsic evidence. Arbitrator Hall also rejected the Union's argument of estoppel, finding that, on the evidence, it could not be established that the Employer ever made a representation to the effect that callout was voluntary and may be declined at the discretion of a firefighter.
The third issue of whether the Employer was required to call the members of the HUSAR Team for deployment in order of seniority was well canvassed by the parties. The Employer had created a seniority list for the specific purpose of the Calgary deployment, which members were called from. The particular issue of seniority was raised to seek redress for a member who was erroneously passed on the list, missing his opportunity to deploy. Although Arbitrator Hall found that the evidence reflected seniority as a "cornerstone philosophy" of the Union, in applying the general conditions provision argued by the Union, he found that there was no practice of seniority "presently in force" regarding HUSAR deployments.
The final issue related only to HUSAR Team members who were deployed to Calgary while on vacation at the time of the activation. Upon their return home, all of these members resumed their vacation, with the intention of returning to work on their original vacation end date. The Employer, however, unilaterally added vacation days to the members' original vacation with insufficient notice, despite evidence of the fact that the decision was made during the deployment. As a result several members lost the opportunity to use their vacation days had they known about the extra days off, with one member missing out on the chance to accompany his fiancée on her vacation.
The Union took issue with the Employer's lack of notice and consultation, and argued that the Employer's conduct constituted an unreasonable exercise of managerial authority. The Employer argued that it had the authority to unilaterally reschedule vacation and that it was not in breach of the Collective Agreement. Arbitrator Hall took the view that the Employer has the obligation to exercise its management rights in a manner that is neither arbitrary nor unreasonable. Finding that employees do "have a say in the matter" when it comes to vacation rescheduling due to operational requirements, it was determined that the lack of timely notice and failure to consult were unreasonable exercise of the Employer's scheduling rights. Arbitrator Hall remitted the issue of monetary damages back to the parties, making special note of the "lost opportunity" principle to the parties.