OPAC 84-006

IN THE MATTER OF THE POLICE ACT

R.S.O. 1970, Chapter 351

AND IN THE MATTER OF AN ARBITRATION

Between

THE PRESCOTT POLICE ASSOCIATION(hereinafter called the "Association")

and

THE BOARD OF COMMISSIONERS OF POLICEFOR THE TOWN OF PRESCOTT

(hereinafter called the "Board")

ARBITRATOR; DR. ARJUN P. AGGARWAL

Appearances;

For the Association;

Mr. Meryle A. Cameron - Spokesman

Sgt. Robert Render - Vice-President

Cst. Gary Sluytman - Secretary-Treasurer

Cst. Bruce Perrin - Grievor

For the Board;

Mr. Robert Crawford - Chairman

Mrs. Sandra Lawn - Mayor, Member

Mr. Matt Hayes - Chief of Police

The hearing in this matter was held on July 4, 1984, inPrescott, Ontario.

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A W A R D

The undersigned was appointed on May l4, 1984, by the

Solicitor General, the Honourable George W. Taylor, Q.C.,

pursuant to section 33 of the Police Act, R.S.O. 1970,

c.351i as amended by the provisions of section 2 of the

Police Amendment Act, 1972, R.S.O. 1972, c.103, to hear

and determine the differences between the parties relating

to the grievance of Constable Bruce Perrin. The hearing

was conducted in Prescott, Ontario, on Wednesday, July 4,

1984. The representatives of the parties agreed that the

appointment of the arbitrator was properly made under the

Act, that the time limits provided by section 33 of the

Act had been complied with and that the arbitrator had

jurisdiction to deal with the issues in dispute between

the parties.

This arbitration concerns with a grievance filed by

the Association alleging that the Board violated the

Collective Agreement specifically article 8, by not paying

the grievor, Constable Bruce Perrin, overtime pay for

February 24, 25, and 26, 1984, for working during his off-

duty time. In relief the Association has demanded that

the grievor be paid overtime pay for that period.

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According to the Duty Roster prepared and posted some-

time in the first week of January 1984, Constable Bruce

Perrin had been allotted scheduled rest day on February

21 and 22,and February 23, 24, 25 and 26 were scheduled

his statutory holidays.

On February 23, when Constable Perrin was on his

statutory holiday, Chief Hayes phoned him and asked him

to report for duty at the midnight shift that day. The

normally scheduled officer for the midnight shift, Con-

stable Arcand, had called in sick, which forced the Chief

to recall the grievor. Constable Perrin reported for work

as instructed by the Chief. He was then asked to work

on February 25 and 26 also; which he did. Constable Perrin

subsequently filed a claim for overtime pay for working

on February 24, 25 and 26» However, his claim for over-

time pay for this period was denied.

On March 5> 1984, the Association, on behalf of Con-

stable Bruce Perrin, filed the grievance which reads as

follows:

March 5, 1984

Matt HayesChief of PolicePrescott Police ForcePrescott, Ontario

Sir:

Pursuant to the Revised Statutes of Ontario,Chapter 381, Section 33(1)(b), the Prescott PoliceAssociation on behalf of Cst. Bruce Perrin wish tofile the following Grievance.

The Association considers that certain conditionsof the Contract have been violated, in particularArticle 8, Section's 8:01 and 8:02.

CIRCUMSTANCES RELATED TO GRIEVANCE

Cst. Perrin had been alloted Rest Day on February21st and 22nd. On February 23, 24, 25, and 26 he wasscheduled for Statutory Holidays. The Duty Rosterhad been posted well in advance. Cst. Perrin was noti-fied by the Chief of Police on February 23rd to reportfor duty at midnight that same day. The reason forthis decision is that the normally scheduled officerfor the 12-8 shift on this date had called in sick.

The Association feels that Cst. Perrin1s normaltour of duty had been posted well in advance and thatany duty performed by him during a scheduled Rest Dayshould be paid at the overtime rate. Cst. Perrin hassince been advised that overtime would not be paid,but instead he would be assigned his Statutory Holidaysat another time. This method is not in agreement withthe Contract and the Association considers this to bea direct breach of the Contract.

Respectfully Submitted

Gary SluytmanSecretary Treasurer

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The Chief of Police, Mr. Matt Hayes denied the griev-

ance on the ground that Constable Perrin "was not on his

normal off-duty time", when recalled to work on midnight

on February 23, 1984. The Chief replied the grievance as

follows:

1984 March 15th

Mr. Gary SluytmanSecretary-TresurerPrescott Police Association

Sir:

RE; GRIEVANCE ON BEHALF OF CST. BRUCE PERRIN

In reply to your grievance dated March 5th, 1984,be advised I have studied your grievance and can replyin the following manner.

Under your heading "CIRCUMSTANCES RELATED TOGRIEVANCE",! can concur with the facts as stated inthe first paragraph.

In reply to your second paragraph may I advisethat under Section 7» 7«2 it states, "A member calledback to duty by the Chief of Police or Officer actingin his stead, ON HIS NORMAL OFF DUTY TIME:

1. Constable PERRIN was not on his normaloff-duty time. I will concur with the fact ConstablePERRIN is entitled to overtime pay for his scheduledRest Days, and which I did in fact inform him he wasentitled to.

Under Article 11,11.01 of the contract it states,"Each member 'SHALL' be granted eleven(ll) days off withfull pay in lieu of eleven(ll) Statutory Holidays".There is no specified time these days are to be alloted.

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In conclusion, Constable PERRIN was not on hisnormal off-duty time, he was placed back on a shiftdue to a shortage in staff which was unavoidable.He has not lost any Statutory Holidays as a resultof this and they will be alloted at a later date.

Hoping I have made it clear to you that in myopinion there has been no breach of your contract.

Matt HayesChief of Police.

The Association was not satisfied by the response of

Chief Hayes. On March 21, 1984, it asked the Board to

review the decision of Chief Hayes, and submitted its

grievance to the Board;

March 21, 1984

Board of Commissioners of PolicePrescott, Ontario.

Att: Matt HAYES, Chief of Police.

Dear Sir.

Re: Overtime decision concerningBruce PERRIN. Police Constable.

Pursuant to article 5-11 of the rules and proce-dures of the Prescott Police Force, the applicant hereinhereby grieves to the Board of Commissioners of Policethe decision of Matt HAYES, Chief of Police regardinga denial of overtime pay for February 24, 25, and 26.

Attached hereto please find the original requestalong with the grieved decision.

Respectfully submitted.

Gary SLUYTMANSecretary TreasurerPrescott Police Association.

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The Board rejected the grievance ( without hearing)

and confirmed the decision of the Chief. On March 27,

1984, it replied to the Association as follows:

March 27, 1984

Mr. Gary SluytmanSecretary-TreasurerPrescott Police AssociationPrescott, Ontario

Dear Mr. Sluytman:

Re: Grievance on behalf of Constable Bruce Perrin

The grievance regarding the overtime decision concern-ing Police Constable Bruce Perrin was discussed by theBoard at its meeting of March 26, 1984. Based on theevidence submitted by the Police Association, thePolice Chief, and making reference to the CollectiveAgreement, the grievance was rejected.

The following motion was carried.

"That the Board of Commissioners of Police,having reviewed the grievance submitted onbehalf of Cst. Bruce Perrin by the PoliceAssociation, find that Article 11:01 isapplicable and therefore the Board concurswith the explanation of the Chief of Policeand dismiss the grievance."

I trust this letter clarifies the Board's positionand that you will pass this on to the Constable af-fected.

Yours very truly,

Arie HoogenboomSecretaryBoard of Commissioners of Police

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The Board argued that the grievor, Constable Bruce

Perrin was not entitled to overtime pay for working on

February 2k, 2$, and 26, 1984, because that was not his

"normal off-duty time". The Association, on the other

hand argued that the grievor was entitled to overtime

pay for February 24, 25. and 26, because he was on his

statutory holidays for that period.

Thus, the basic issue in this- case is whether or not

February 24, 25, and 26, 1984, were normal off-duty days

for the grievor, Constable Perrin, in the circumstances

of this case.

The relevant provisions of the Collective Agreement

read as follows:

Article 7 HOURS OF WORK;

7.01 The normal weekly period of work whicha member is required to perform shallbe five (5) days duration and each dailytour of duty shall consist of eight (8)consecutive hours.

7.02 A member called back to duty by theChief of Police or officer acting inhis stead, on his normal off-duty time,shall receive a minimum credit ofthree (3) hours for the first houror portion thereof and hour for hourthereafter and will be paid for attime and one-half. A member ordered

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to stand-by for duty by the Chief ofPolice or officer acting in his stead,on his normal off-duty time, shall becompensated at regular rate for timeso spent and not at overtime rate.

7.03 To provide that each member will haveat least three (3) scheduled rest daysoff either at Christmas or New Years.These days shall consist of eitherDecember 24th, 25th and 26th or Decem-ber 31st, January 1st and 2nd of thefollowing year.

Article 8 OVERTIME;

8.01 Overtime shall be deemed to be any timespent in the service of the Force inexcess of a member's normal tour of duty.

8.02 In the event that any member of theAssociation works overtime he shall bepaid at the rate of one and one-halftimes his normal rate of pay for eachhour or portion thereof worked overtime.He will not be required to take timeoff to compensate for overtime worked.

8.03 Overtime shall be calculated from Novem-ber 1st of 1980 and each subsequent yearup to and including October 31st, of thenext year and paid on or before December1st of each year.

Article 10 ANNUAL VACATION;

10.01 The Board agrees that each member ofthe Association shall be entitled tovacation with full pay on the follow-ing basis:

(a) A member who has completed one (1)year's service shall have fourteen

days vacation.

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(b) A member who has completed three(3) year's service shall havetwenty-one (21) days vacation.

(c) A member who has completed ten (10)year's service shall have twenty-eight (28) days vacation.

10.02 Each member of the Association will begranted two (2) weeks annual vacationduring prime time, namely, between May1st and September 30th, insofar as theChief of Police is reasonably able todo so in the light of the circumstancesthen existing.

10.03 The Chief of Police shall cause a drawof vacation time to be made of the va-cation period of the respective membersof the Association according to senior-ity of service during the month of Jan-uary, or as soon as practicable afterthe Chief of Police has been informedin writing of the dates of the AnnualConvention of the Police Associationof Ontario and the name of the officerattending, which time last occurs.Such period will not be changed unless,in the discretion of the Chief of Police,he considers it necessary or proper toso do in the light of circumstances thenexisting.

Article 11 STATUTORY HOLIDAYS;

11.01 Each member shall be granted eleven (11)days off duty with full pay in lieu ofeleven (11) Statutory Holidays. In theevent of less than a full year of service,a member shall be entitled to a day offfor each Statutory Holiday that fallsduring his employment.

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Article 7.02 of the Collective Agreement provides that

when a member of the Force is called back for duty by the

Chief from his "normal off-duty time", he will be paid at

the rate of time and one-half of his regular rate of payt

Article 8.01 provides that overtime shall be deemed to be

any time spent in the service of the Force in excess of a

member's "normal tour of duty". Further, an officer who

works overtime will be paid at the premium rate; and "he

will not be required to take time off to compensate for

overtime worked".

Thus, it is evident that an officer of the Force is

entitled to overtime pay at the rate of one and one-half

of his regular pay if and when he works in excess of his

"normal tour of duty" or he is called back to duty while

on his "normal off-duty time". The question then arises

what does constitute a "normal tour of duty"; and "normal

off-duty time" for an officer of the Force?

Sgt. Robert Render testified on behalf of the Associa-

tion that he had prepared the Duty Roster (Exhibit 2) and

it was approved by the Chief. The Duty Roster was posted

sometime in the first week of January 198̂ . He stated

that Constable Bruce Perrin had been allotted scheduled

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rest day on February 21 and 22 and on February 23, 24,

25, and 26 he was scheduled for statutory holidays. He

added that statutory holidays for four days for Constable

Perrin were clearly shown in the Duty Roster and he had a

notice of the scheduled statutory holidays for about four

to six weeks in advance.

The grievor Constable Perrin testified that he knew,

since early January, that he had been allotted February

23i 24, 25, and 26 as substitute for statutory holidays.

He added that February 21 and 22 were his regular rest

days. Thus, in total he had six continuous holidays.

He further testified that on February 23, the Chief

phoned him and asked him to work on the midnight shift

that day, February 24. He reported for work as advised by

the Chief. Subsequently, he was asked to work on February

25, and 26 also, and he did so. He added that he had no

doubt in his mind that it was overtime, and he accordingly

put his claim for overtime pay on February 28.

He futher testified that initially, the Chief had

advised him that if he was to be paid overtime for those

days, he would not receive statutory holidays at any other

time. He stated that he had agreed to that. However,

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shortly thereafter, the Chief changed his mind and informed

him that his statutory holidays were cancelled and he would

not receive overtime pay for those days.

Constable Gary Sluytman, secretary-treasurer, of the

Association testified that he was involved in the negotia-

tions leading to the present Collective Agreement. He was

also a signatory to the Collective Agreement. He also testi-

fied that article 8 of the Agreement was intended to provide

for overtime pay to a person who has been called in for duty

from rest days or statutory holidays. He added that an

officer called in for duty from any "off duty", has always

been paid at overtime rate.

The Board, however, neither adduced any evidence nor

did it make any effort to deny or contradict the evidence

of the Association. Rather, the Board has conceded that

the grievor was not secheduled to work on February 21, 22,

23, 24, 25 and 26. February 21 and 22 were scheduled as

his weekly rest days and February 23, 24, 25 and 26, were

scheduled as holidays in lieu of statutory holidays. In

total Constable Perrin had six days off.

The Board has also not denied the fact that when the

grievor was called back for duty on February 24, he was on

holidays granted by the Board (the Chief) in lieu of the

statutory holidays. However, the Board has contended,

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first, that the grievor was not on his "normal off-duty time",and secondly, that the Chief had the power to cancel

the statutory holidays and he did so.

Professor Palmer in his treaties on Collective Agreement

Arbitration in Canada 169 (2d Edition) Toronto: Butter-

worths (1983), states that "normal" means, among other

things, conforming to standards or regular. For example,

therefore, where schedules have been in effect for several

weeks, such work is "normally carried on".

In Re City of Kingston, 13 L.A.C. 150 (Anderson), the

board of arbitration held:

There is nothing unusual about the shifts.There is a regularity to the schedulingover a period of time. They started andended at the same time during this period,and while there might be some argumentthat "normally carried on" means for asubstantial length of time, yet when itis carried on for several weeks under aregular pattern of scheduling, it seemsto your board that it is then normallycarried on within the terms of the contract.

The term "off" according to International Webster

Dictionary (3rd Edition) means among other things:

in absence from a supervision of regularwork or service.

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used as a function word to indicate some-thing that one has been but is not nowpartaking of, occupied with, or engagedupon duty.

not corresponding to fact: divergent orerring from a true line or exact figure.

not being up to normal conditions or usualefficiency;

taken or spent off-duty or in relaxation

Generally, in the police forces, the hours and days of

work of an officer are not fixed either permanently or for

any considerable length of time. Unlike an industry where

an employee in a 0̂ hour week usually works from 8:00 a.m.

to 5!00 p.m., Monday to Friday, there are no standard duty

hours for a police officer . Rather, the working days

and duty hours (known as shifts) of a police officer are

usually changed from week to week. Thus, a police officer,

generally does not work on the same shift, nor the same

days, week after week, for any considerable length of time.

If "normally" means for a substantial length of time, then

it may be said that there is neither a "normal tour of

duty" nor a "normal off-duty time" for a police officer,

because neither of them continue for a substantial length

of time. Then the question arises what the parties have

meant by the expressions "normal off-duty time" and "nor-

mal tour of duty" as used in articles 7 and 8 of the

Collective Agreement.

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The primary function of the arbitrator is to ascertain

and give effect to the mutual intent of the parties. The

collective agreement should be construed, not narrowly

and technically, but broadly and so as to accomplish its

evident aims. The attitude of the arbitrators who strive

to determine what the parties were driving at and to effec-

tuate their intent is echoed in the statement of Mr. Justice

Holmes in Johnson vs. United States, 163 Fed. 30, 32 (1908),

that "it is not an adequate discharge of duty for courts to

say: We see what you are driving at, but you have not said

it, and therefore we shall go on as before".

Although the parties have not explicitly definied the

expression "normal off-duty time." and "normal tour of duty"

in the Collective Agreement, they however have defined

"normal weekly period of work". Article 7.01 of the

Collective Agreement provides that "the normal weekly

period of work which a member is required to perform shall

be five (5) days duration and each daily tour of duty

shall consist of eight (8) consecutive hours". It means

that a period of forty (̂ 0) hours a week as scheduled,

time to time, for the officer would be his normal weekly

work period.

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Furtheri as revealed by the evidence, it was customary

for the Prescott Police Force to prepare a Duty Roster,

normally four to six weeks in advance showing:

(i) days and shifts an officer is scheduled to work;

(ii) the weekly rest days for an officer;

(iii) the scheduled statutory holidays (in lieu of;

statutory holidays) for an officer;

(iv) if the officer is on vacation and

(v) if the officer is sick or on sick leave.

Thus, it is evident that the tour of duty as well as off-

duty time of an officer is that which is established by

the Duty Roster. It follows then that the normal working

hours (tour of duty) of a Prescott Police officer are those

which have been assigned or scheduled for him in the Duty

Roster of the Force. Once the Duty Roster is prepared and

the officer's schedule is posted by the Department, it

becomes his "normal tour of duty". The days and hours

which are not scheduled for work for an officer remain

his "normal off-duty time".

It is a well recognized rule of construction that a

word used by parties in one sense is to be interpreted in

the absence of countervailing reasons, as employed in the

same sense throughout the writing.

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Basicallyi when to work and when not to work is not

the choice of an officer. The days and hours of duty (tour

of duty) are not selected by an officer. Rather, the shift

and hours of work are designated by the Department and

approved by the Chief of Police. Thus, the Chief of Police,

in order to maintain an efficient police operation has been

given the freedom to assign and schedule an officer to work

on any day or shift he thinks appropriate. Similarily, he

has the discretion to allot days of rest and schedule stat-

utory holidays. However, once the Chief has made the

assignment; and the officer's schedule is shown in the

Duty Roster and posted, the Chief, in my opinion, cannot,

arbitrarily and abruptly, cancel his schedule. The Chief

may change or amend the schedule of an officer, in emergency,

but only in consultation with the officer and by providing

him sufficient notice and time. However, the cancellation

of scheduled statutory holidays,retroactively and in the

midstream, is neither fair nor valid. Thus, I am afraid,

I cannot accept the Board's argument that the Chief had

cancelled the grievor's statutory holidays.

Moreover, there is no evidence to suggest that the

chief had cancelled the grievor's statutory holidays at

the time he phoned him to recall for duty on February 23.

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In fact, the Chief had neither cancelled his statutory

holidays nor had he informed the grievor of the cancellation

prior to February 28, 198̂ , i.e. two days after the expiration

of his statutory holidays.

As a matter of fact, Chief Hayes told the grievor that

he had cancelled his statutory holidays only after he had

filed the claim for overtime pay. Moreover, according to

the testimony of the grievor (which I have no reason to

disbelieve) Chief Hayes initially had agreed to pay

him the overtime pay. But, shortly thereafter, he had a

change of mind and told the grievor that he had cancelled

his statutory holidays. Thus, I find that the idea of

cancellation of statutory holidays was an after thought;

and thus it cannot be a valid excuse for denying the grievor

overtime pay for that period. In my opinion, cancellation

of statutory holidays of an employee without any notice or

warning to him is contrary to the basic norms of justice

and equity. It violates the fundamental principles of

industrial jurisprudence.

Thus, in reviewing the circumstances of this case, I

have reached to the conclusion that the grievor's statutory

holidays were neither cancelled nor could those legally be

cancelled. Therefore, I find that February 2̂ , 25, and 26

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were "normal off-duty days" for the grievor, for the pur-

poses of articles 7 and 8 of the Collective Agreement.

The Board has further argued that as Constable Perrin

had agreed, without hesitation, to the Chief's request to

work on February 24, 25, and 26, he should not be entitled

to overtime pay. I find this argument completely incom-

prehensible. The grievor1s willingness to assist the Chief

in case of emergency, without making any fuss (during his

statutory holidays), in my opinion, shows the officer's

positive attitute, his respect for the Chief and his dedi-

cation and loyalty to the Force. Thus, I do not think that

this should be a reason for denying him the overtime pay

for those days.

If the Board's argument implies that the grievor had

agreed to work on a regular rate of pay, it has adduced

no evidence to that effect. In fact, the Chief had not

even mentioned the rate of pay to the grievor when he re-

called him for duty on February 23, 1984. The grievor,

on the other hand, has testified that he was under the

impression that it was overtime and he would be paid at

the overtime rate. His testimony was supported by Con-

stable Sluytman who testified that the officers called

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for duty from off-duty have always been paid at the over-

time rate and that was the intent of article 8 of the

Collective Agreement. Thus, I find it hard to believe

that the grievor would have agreed to work on a regular

rate of pay for that period.

Article 7.02 provides that "A member called back to

duty by the Chief of Police... on his normal off-duty

time...will be paid for at time and one-half." Article

8.01 states that "overtime shall be deemed to be anv time

in the service of the Force in excess of a member's normal

tour of duty". As I have said earlier the "normal tour

of duty" of an officer is that which has been scheduled

for him in the Duty Roster. It means that whenever an

officer is called to work, when he is not scheduled to

work,he should be paid overtime at the rate of time and

one-half of his regular pay. Further, Article 8.02 pro-

hibits the Board from substituting time off in lieu of

overtime worked. It states that a member who worked

overtime "will not be required to take time off to com-

pensate for overtime worked". Thus, the Board must pay

an officer overtime pay at the rate of time and one-

half for working overtime.

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A recall of an officer may occur in different cir-

cumstances. He may be recalled for duty: (i) after his

regular shift, (ii) during his weekly rest period, (iii)

during his scheduled (substitute) statutory holidays, or

(iv) during his vacation. In all these situations an

officer is recalled for duty from his "off-duty time"

and thus should be entitled to overtime pay. However,

the parties, have made one exception. They have allowed

the Chief of Police to change the vacations scheduled of

an officer, if necessary. Article 10.03 in this regard

provides that "such period (vacations) will not be changed

unless, in the discretion of the Chief of Police, he con-

siders it necessary or proper to so do in the light of

the circumstances then existing". Thus, if the Chief of

Police feels it necessary he can change the vacation period and

recall an officer for duty from his scheduled vacations.

In that case the officer will be entitled only to regular

rate of pay for working during that period; and his vaca-

tions will be rescheduled.

However, the parties have not authorized the Chief

of Police to change or cancel the scheduled statutory

holidays. If the parties had intended to authorize the

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Chief to cancel statutory holidays also, they would have

provided so in the Collective Agreement as they did in

relation to vacations, but they did not do so. Thus, it

is obvious that when an officer is recalled for duty from

his statutory holidays, he is entitled to overtime pay.

Having regard to the evidence and the arguments of the

parties and for the foregoing reasons, I am of the opinion

that the Board violated the Collective Agreement, speci-

fically article 8, by refusing to pay overtime rate to

the grievor for February 24, 25 and 26, 1984. Accordingly,

I award that the grievor, Constable Bruce Perrin, should

be paid overtime pay at the rate of one and one-half times

of his regular rate of pay for that period. The grievance,

therefore, is allowed.

I wish to thank the representatives of the parties

for their able presentation and for the courtesy and as-

sistance they have extended to me.

Dated at Thunder Bay, Ontario, this 23rd day of July,

1984.

ArjunPT A*ggarwal - Arbitrator