A LABOUR ARBITRATION

BETWEEN

CITY OF TORONTO POLICE SERVICES BOARD

(hereinafter called the Employer")

AND

TORONTO POLICE ASSOCIATION

(hereinafter called the "Association")

CALLBACK GRIEVANCE - COURT ATTENDANCE

ARBITRATOR

B Welling

APPEARANCES For the Employer For the Union Mr Michael Hines Mr Ian Roland

Hearings held in Toronto Ontario on 05 May, 18 Jun, and 06 Dec 99

AWARD
Police Officers must attend court as witnesses. Neither the Employer nor the Association has much say in scheduling court appearances. A Police Officer often must attend court during a scheduled off day. The Collective Agreement provides what is now called a Callback Entitlement, requiring a minimum number of hours at premium pay for being called in to testify on an off-day. In 1982 the minimum number of hours was set at four. Otherwise, different terminology has been used over the years and the wording of the Collective Agreement provision has varied.

Sometimes an Officer must attend two different courts on the same day. If both are scheduled at approximately the same time, only one Callback Entitlementis payable. If the second court appearance is scheduled long after the first has ended and more than the minimum paid hours after the first began - for example, a morning appearance and an evening appearance on the same day - two Callback Entitlements are payable. This dispute involves a more difficult situation. What if, as sometimes happens, the first court appearance lasts only a few minutes? What if the second court appearance is scheduled to start within the four hours already paid for the first callback? Did the Officers tour of duty continue, or is a second Callback Entitlement triggered by the second court appearance?

The problem occurs because of the starting times fixed for different courts. If an Officer is scheduled for Criminal Court (starting at 1000) or Minor Traffic Court (starting at 1030), followed by a scheduled appearance in afternoon Minor Traffic Court (starting at 1330), the second start time falls within the four hours paid for the first Callback. The Association claims that, consistent with a practice dating back several years, two Callback Entitlements are payable for that day. The Employer says that no second Callback Entitlement is payable, and claims to have put an end to the previous practice by a Routine Order, first issued on 28 Jan 98 and subsequently re-issued later that year, on 06 Oct 98. The original order (Exhibit 2) read as follows.
COURT ENTITLEMENT

In accordance with Service Rules members who have a second court appearance within the entitlement period of the first court appearance are entitled to only one court card. For example, an officer who attends a 1000 hour court on a regular day off and again at 1330 hours, should submit only one court card. The officers entitlement would be from the commencement of the first court appearance to the end time of the second. The Court Tracking System will reveal any discrepancies.

The phrase court card refers to the document submitted by a Police Officer to record a court appearance for payroll purposes. The re-issued order (Exhibit 5) read as follows.
Directive 12-02 in the Policy & Procedure Manual entitled Court Attendance prescribes the course of action to be followed when a member is required to attend court. This order will clarify callback entitlements for court appearances. The entitlement period for a callback is a minimum of four hours for members on a regularly scheduled day off, and a minimum of three hours for those who are at court during off duty hours pursuant to the Collective Agreements. This period commences with the start of court and continues for either four, or three hours, as indicated above. Therefore, if a member has a 1030 hours court appearance and a 1330 hours court appearance on a scheduled day off, both are within the same entitlement period and as such, the member is only entitled to one callback. If the second court appearance extends beyond the minimum entitlement, the member will be compensated accordingly. A member who attends a second or subsequent court appearance within the original entitlement period shall notify the court card clerk that the original Court Card (TPS 448) is still valid and that a further TPS 448 is not required. Where a second TPS 448 is generated through the CASC System, the member shall note thereon that the court appearance is within the original entitlement period and return the TPS 448 to the court card clerk. As of the date of this order, any overpayments due to the inappropriate use of callback entitlements for court appearances shall be deducted from the members pay. Unit commanders shall ensure that members under their command comply with this order by auditing their units monthly Court Attendance printout. This Order replaces Routine Order 0138 of 1998.01.28-0138

I have two decisions to make. First, I must decide whether the wording of the Collective Agreement clearly requires two Callback payments in the circumstances in dispute. If not, or if the Collective Agreement appears ambiguous, I must look at the evolution of the parties Collective Agreement and determine the effect of the practice of making two Callback payments over the years.

The current provision on point is Art 5:04. I have highlighted the key words. 2

5:04(a) For the purpose of this clause callback is defined as the callback of a member after he/she has reported off duty and before his/her next following tour of duty, and shall include the attendance of a member:

(2)

(i) (ii)

at courts during his/her regularly scheduled days off or performing duty on regularly scheduled days off.

Such member shall be granted lieu time , as provided in clause 5.05, or pay calculated at the rate of one and one-half times the members rate of pay for all hours of duty in such callback with a minimum of 4 hours pay or time off in lieu thereof at the time and one half rate for each such callback. The parties dispute is not resolved by a simple reading of those words. They merely convey three messages (ignoring the alternative of lieu time which was not the focus of this dispute) . Message 1 Callback is clarified to include attendance at courts (plural) on a regularly scheduled day off. The pay rate for all hours of duty in such callback is time and one half. a minimum of 4 hours pay is due every time a callback occurs.

Message 2

Message 3

I believe that the parties agree how an Officer who is called in for only one court appearance on a day off will be paid. If the appearance lasts more than four hours - say six hours of combined waiting around, then testifying at a Criminal Trial scheduled to start at 1000 hours - six hours at the premium rate is payable, as six hours of duty in such callback were performed. If the appearance lasts less than four hours - say half an hour at 1030 Traffic Court - the four hour minimum is payable. Whether, in the latter case, the unworked three and one-half hours were hours of duty would be irrelevant to the outcome, as Message 3 clearly applies.

The parties agree how an officer who is called in for two brief, but widely separated court appearances on a day off will be paid. Suppose an officer appears at a 0900 Traffic Court for 15 minutes, then appears at another Traffic Court starting at 1900, again for 15 minutes. Two callback payments are due, each amounting to four hours of premium pay. It is common ground between the 3

parties that Message 3 applies. Things get more complicated when two court appearances are scheduled to start less than four hours apart. Two types of such circumstances occur. One of them - the issue in dispute - arises when an Officer is scheduled for a morning and an afternoon appearance on the same day. The other arises in the case of two morning appearances or two afternoon appearances. An example of the former, already given, would be Criminal Court (starting at 1000) followed by a scheduled appearance in afternoon Minor Traffic Court (starting at 1330). An example of the latter would be Criminal Court at 1000 followed by Traffic Court at 1030. Assuming a total appearance time of minutes in each case, does the Collective Agreement require one callback payment, or two?

The Association says that two callback payments are triggered where morning and afternoon appearances are required within four hours of one another, but not when two morning appearances are scheduled. On a literal reading of Art 5:04, that makes no sense. The first of the two appearances would trigger a four hour minimum payment because of Message 3. The Collective Agreement isnt clear on how to treat the second court appearance. One interpretation (advanced by the Employer) is that payment of the four hour minimum for the first callback would pay for four hours of duty in such callback, in which case the second appearance would have already been paid for according to Message 2 and no second callback occurred. Another interpretation is that the first tour of duty ends with the end of the first court appearance, that the Officer is then off duty (rendering Message 2 inapplicable to what else happens that day), and that the officer is called in a second time for the second court appearance, triggering Message 3 for a second time. Neither of those two contrasting interpretations is inconsistent with the wording of the Collective Agreement. I conclude that the Collective Agreement appears ambiguous.

The Associations position is that the apparent ambiguity is resolved by resort to the collective bargaining history over the years, and by the practice of paying separate callback payments for morning and afternoon appearances on the same day. I turn first to the varied wording of the parties Collective

Agreements over the years, highlighting the key provisions.

The parties first Collective Agreement was in 1957. Replacement time off was provided for court attendance on a day off. The provision was worded as follows.
12(a) That any member of the uniformed branch who is required to attend at the Courts during off duty hours shall be granted three hours time off for each morning, afternoon or evening during which he is so required to attend. Provided that attendance at High Court for a full day shall only entitle a member to four hours time off.

Two points are noteworthy. First, as suggested by the Association, the provision recognized that the relevant courts were organized into morning, afternoon, and evening tiers. Second, there was no entitlement to overtime or callback pay.

Essentially the same provision appeared in the Collective Agreement in 1958 and 1959. The only changes were to clarify the High Court provision (three hours lieu time for a morning or afternoon appearance; four hours for a full day) and to postpone use of the lieu time until a full day could be taken off.

Those provisions appeared , with further clarification on the use of lieu time, in the 1961 agreement. One material change was introduced then, giving the Officer a choice between three hours lieu time or a sum equal to the Witness Fee for High Court Attendance (now $6.75) ... for each morning, afternoon or evening .... There was still no reference to a callback payment and the three tiers of courts were still clearly identified.

The 1967 Collective Agreement was the next one entered in evidence. The wording was cleaned up, but the only major change was the choice of three hours regular pay.
Any member who is required to attend at the courts during off-duty hours shall be granted, at the
option of the member, three hours time off or a sum equal to three hours at his regular rate of pay
in lieu thereof for each morning, afternoon or evening during which he is so required to attend;
provided, however, that time off for attendance at High Court shall be as follows:
(i) for a morning or afternoon attendance only - three hours;
(ii) for a full days attendance - four hours.

There was still no reference to a callback payment and the three tiers of courts were still clearly identified. The 1969 Collective Agreement was the next one entered in evidence. There I saw the first reference to the term callback, and the provisions for off-day court attendance were substantially changed.. Many of the changes are irrelevant to this dispute. Some of the changed wording is due to what appears to have been a change made during the term of the Collective Agreement (thus Art 13(a)), some re-states the existing requirement that lieu time cant be taken in a partial day (Art 13(d), and further changes created special rules for attending High Court (Art 13(c)) and appearing as a witness at a civil trial (Art 13(e)). Again, I have highlighted the portions I found relevant to the issue in this case
5(f) For the purposes of this subsection callback is defined as the call back of a member after he has reported off duty and before his next following tour of duty. A member shall be granted, at his option, pay at the rate of time and one half his current rate of pay or time off in lieu thereof at the time and one-half rate, for all hours of duty in a callback, with a minimum of three (3) hours pay or time off in lieu at the time and a half rate for each such callback. Any member who prior to August 1, 1969, was required to attend at Courts other than High Courts and Courts of Civil jurisdiction during his off duty hours shall be granted at the option of the member three hours pay at the rate of time and one half or time off in lieu thereof at the time and one half rate for each morning, afternoon or evening during which he was so required to attend: Any member who, on or after August 1st, 1969, was or is required to attend at Courts other than High Courts and Courts of Civil jurisdiction during his off duty hours, shall be granted at his option for every day in which he is required to attend: (i) A minimum of three hours pay at the rate of time and a half for such attendance at the Courts up to a maximum of three hours or time off in lieu thereof calculated at the rate of time and a half; (ii) A minimum of six hours pay at the rate of time and a half for such attendance at the Courts in excess of three hours up to a maximum of six hours, or time off in lieu thereof at the rate of time and a half; (iii) A minimum of nine hours pay at the rate of time and a half for such attendance at the Courts in excess of six hours or time off in lieu thereof calculated at the rate of time and a half; Provided that if a member is required to attend at both the morning and afternoon
sittings of the Courts, the adjournment between morning and afternoon sittings shall be
included in the computation of the members time for attendance at the Courts.
Provided further that a member shall be entitled, in any event, to the following minimum
payments, or time off in lieu thereof, for attendance at sessions of the Courts at the rate of
time and a half.
(1) Morning and afternoon appearances in one day -- six hours .
(2) Afternoon and evening appearances in one day -- six hours.
(3) Morning and evening appearances in one day -- six hours.

13(a)

(b)

(c)

(d)

(e)

(4) Morning, afternoon and evening appearances in one day -- nine hours . Any member who is required to attend at High Court during his off duty hours shall be granted at his option pay at the rate of time and one half or time off in lieu thereof at the time and one half rate on the following basis: (i) for a morning or afternoon attendance only -- three hours. (ii) for a full days attendance only -- four hours. Lieu time off for court attendance shall be allowed to accumulate until eight hours or more have been accumulated and the member shall then be allowed to take off a full day provided that such lieu days must be taken or granted within one month after having been accumulated. Any member who is required to attend as a witness in the courts of civil jurisdiction, during off duty hours, shall receive payment at straight time for any time spent in attending at such court. The time shall be computed on the basis of a minimum of four hours for an appearance in the morning and an additional three hours for an afternoon appearance on each day that he is required to attend such court.

It is evident that major changes occurred in the 1969 Collective Agreement. The concept of a callback then appeared. Court appearances were treated quite differently as of 1 Aug 69. The Collective Agreement still recognized that morning, afternoon, and evening court attendances were different events, but minimum and maximum payments were required for time spent at or between courts (plural) on a particular day.

The 1970 Collective Agreement simplified the provisions by clearly defining the types of court appearance we are concerned with as a callback. Appearances in civil court were dealt with in a separate section, whose provisions were modified slightly from the previous Collective Agreement.
5(f) For the purposes of this subsection call back is defined as the call back of a member after he has reported off duty and before his next following tour of duty, and shall include attendances of a member at Courts, other than Courts of Civil jurisdiction, during his off duty hours. A member shall be granted, at his option, pay at the rate of time and one-half his current rate of pay or time off in lieu thereof at the time and one-half rate, for all hours of duty in a call back, with a minimum of three (3) hours pay or time off in lieu thereof at the time and one-half rate for each such callback. Any member who is required to attend as a witness in the Courts of Civil jurisdiction, during off duty hours, shall receive payment at straight time for any time spent in attending at such court. The time shall be computed on the basis of a minimum of four hours for an appearance in the morning or an appearance in the afternoon. If a member is required to attend both a morning and an afternoon Court in the same day, the time shall be computed on the basis of seven hours time for each day he is required to attend such Court.

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I note that, for Criminal Court and Traffic Court, the explicit distinction between morning, afternoon, and evening appearances had disappeared. No doubt the 1970 provision recognized that different courts might start at different times, but that was only a fact of life, not an organizing principle set out in the Collective Agreement. Whether a second callback payment was triggered by a second court appearance on a particular day seems to have depended on whether the Officer had reported off duty before the second court appearance commenced.

In the 1971 Collective Agreement, civil court appearances continued to be treated in a separate provision (Art 5(F)(II)) and continued to refer to an appearance in the morning or an appearance in the afternoon. Non-civil court appearances within the Municipality of Metropolitan Toronto continued to be treated as callbacks, but the wording had been changed again. 5(F)(I) For the purpose of this subsection call back is defined as the call back of a member
after he has reported off duty and before his next following tour of duty, and shall include attendances of a member at Courts located within the Municipality of Metropolitan Toronto, other than Courts of Civil jurisdiction, during his off duty hours. A member shall be granted, at his option, pay at the rate of time and one-half his current rate of pay or time off in lieu thereof at the time and one-half rate, for all hours of duty in a call back, with a minimum of three (3) hours pay or time off in lieu thereof at the time and one-half rate for each such callback and, effective January 1, 1972, with a minimum of four (4) hours pay or time off in lieu thereof at the straight time rate for each such callback.

Two things confuse me about this provision. First, I dont know whether it was possible for an Officer to be called to attend court outside the Municipality of Metropolitan Toronto, or how such an appearance would have been dealt with. Second, and I suspect more importantly, the new wording set out in italics seems to have introduced a four hour minimum payment! I dont know what to make of that provision, or how it affected things, as no one drew my attention to it during the hearing of this matter.

The 1972-1973 Collective Agreement continued to deal with civil courts separately and further tinkered with the non-civil court provisions. The parties went back to premium pay, but reduced the minimum payable to 2 3/4 hours ( a slight increase over the previous years 4 hours at straight time).
5:06(A) For the purpose of this subsection call back is defined as the call back of a member

after he has reported off duty and before his next following tour of duty, and shall include attendances of a member at Courts located within the Municipality of Metropolitan Toronto, other than Courts of Civil jurisdiction, during his off duty hours. A member shall be granted, at his option, pay at the rate of time and one-half his current rate of pay or time off in lieu thereof at the time and one-half rate, for all hours of duty in a call back, with a minimum of two and three quarter (2 3/4) hours pay or time off in lieu at the time and one-half rate for each such callback .

The next Collective Agreement I have is for 1975. Civil court appearances remained separate. Non civil court appearances remained covered by a callback provision, the only change being a return to a minimum three hour payment.
5:05(a) For the purpose of this subsection Call Back is defined as the call back of a member after he has reported off duty and before his next following tour of duty, and shall include attendances of a member at Courts located within the Municipality of Metropolitan Toronto, other than Courts of Civil jurisdiction, during his off duty hours. A member shall be granted, at his option, pay at the rate of time and one-half his current rate of pay or time off in lieu thereof at the time and one-half rate, for all hours of duty in a call back, with a minimum of three (3) hours pay or time off in lieu at the time and one-half rate for each such callback .

That provision was not negotiated. It was imposed in an interest arbitration before George Ferguson QC. I find it significant that the Association proposed a return to the tier system - asking for a provision stating [t]he minimum allowance for each morning, afternoon or evening off duty court appearance shall be four (4) hours at the regular overtime rate. Mr Ferguson rejected the Associations proposal, noting that under the previous years Collective Agreement [u]nder some circumstances, the minimum guarantee is not duplicated for two appearances in court on the same day whereas under some circumstances it may apply, depending on how many cases the officer is involved with and when these cases are heard. I think what he was getting at was that the parties Collective Agreements had already moved away from artificially treating morning and afternoon court appearances as if they were different experiences and had settled on a callback system for off duty court appearances, with minimum guaranteed callback payments. He was not about to move backward. The old tiersystem was dead, so far as the Collective Agreement provisions were concerned.

The 1976 Collective Agreement was similar, except (i) the capitals disappeared from call back and courts, (ii) the territorial restriction was removed, (iii) civil court appearances appear to have been 9

brought within the callback provision, and (iv) the language was tidied up by setting out the lieu time option in another provision.
5:05(a) For the purpose of this subsection call back is defined as the call back of a member after he has reported off duty and before his next following tour of duty, and shall include attendance of a member at courts during his off duty hours. A member shall be granted lieu time as provided in clause 5.06, or pay calculated at the rate of one and one-half times the members current rate of pay for all hours of duty in such call back, with a minimum of three hours pay or time off in lieu at time and one-half rate for each such callback.

The 1977 and 1978 Agreements remained functionally identical, so far as court appearances were concerned., with the callback minimum payment set at three hours at time and one-half. Thus, because the latest morning court started at 1030 and the earliest afternoon court began at 1330, it was coincidentally impossible for the minimum paid time for a morning callback to overlap with an afternoon court.

In 1982 a critical change occurred. In an interest arbitration, Ken Swan increased the minimum callback payment from three hours to four hours at premium rates. His Award did not address the point that now, for the first time, an Officer might appear at an afternoon court (at 1330) while still covered by the minimum callout payment for a morning court appearance (at 1000 or 1030). No one seems to have addressed the point at that time. The 1982 clause read as follows.
5:04(a) For the purpose of this Clause callback is defined as the callback of a member after he has reported off duty and before his next following tour of duty, and shall include the attendance of a member:

(3)

(i) (ii)

at courts during his regularly scheduled days off or performing duty on regularly scheduled days off.

Such member shall be granted lieu time , as provided in clause 5.05, or pay calculated at the rate of one and one -half times the membe rs rate of pay for all hours of duty in such callback with a minimum of 4 hours pay or time off in lieu thereof at the time and one half rate for each such callback. That provision continued to appear in Collective Agreements up to and including the current one, except for the capitalization of the word Clause (reduced to lower case in 1998) and the sensitive new-age substitution of the non-word his/her for his, which was changed as early as the 1987 Collective 10

Agreement.

I find that the tier system - whereby morning, afternoon, and evening courts were treated as different because they were in the morning, the afternoon, and the evening - disappeared from the Collective Agreement long ago. It was replaced by a callback system, whereby Officers are paid premium rates for off duty court appearances, with a minimum guaranteed amount set at four hours pay since 1982. The current system is similar to callback systems found in private sector collective agreements.

There are, however, some major differences from typical callback situations in the private sector. Most callbacks are intended to deal with emergency situations for which regular overtime shifts could not have been anticipated and scheduled. Arbitrators have recognized that, in such circumstances, a provision for minimum callback pay serves two purposes. One purpose is to compensate the employee for the disruption, usually at minimal notice, of a scheduled day off. Here, an Officer is notified well in advance of the court appearances and at least one minimum callback payment is required to compensate for inconvenience. The other purpose is to deter Employers from using the callback provisions except in emergencies or other unforseen circumstances. Here, a callbacks for court appearances are neither emergencies nor unforseen. Moreover, this Employer has little say in when such callbacks will occur. Prosecutors and other court officials do the scheduling: they are unlikely to be deterred by minimum callback payments incurred by the Police Services Board.

The parties agree that part of the routine is that Officers clock in before each court appearance and clock out as soon as witness duties are completed in that court. They also agree that no other duties are assigned between separate court appearances on a day off, and that no supervision is exercised, the Officers being at liberty to do as they please while waiting for the second court to begin. The Association argued that is comparable to an industrial setting in which an employee is called in to do some emergency repair work, told after it is finished to clock out and go home, then is called back again for further work, all within the minimum paid hours for the first callback.

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I have two reasons for rejecting the Associations argument.

First, as noted earlier, the same argument would require two callback payments for two different appearances at two morning courts (or two afternoon courts). However, no one suggests that an Officer must be paid twice for appearing at both 0900 and 1030 (or 1330 and 1500) in different Traffic Courts. The reason must be that the four hour minimum callback payment for the first appearance also pays for the second appearance, so long as it starts within four hours of the first. Because of the abandonment of the tier system many years ago, the fact that a second court appearance within the four hour minimum payment period occurs in the afternoon, whereas the earlier callback was in the morning, makes no difference. Both must be treated the same way.

Second, being called in for two court appearances on the same day bears little resemblance to industrial situations in which two different callback payments have been ordered by Arbitrators. In Re Shell Canada Ltd 6 LAC 2d 422 (OShea 1974) the Grievor was called in to work on an emergency repair job. The foreman decided that the work was too complex to be done as planned, postponed it, and told the Grievor he could go home. Having punched out and changed back into his street clothes, the Grievor was stopped on his way out of the parking lot and informed that management had just decided to close off a line that led to the defective equipment. He was ordered to assist with that work, and did so. The elapsed time between punching in for the first (aborted) work and punching out after completion of the second assignment was 58 minutes. The Grievor claimed two four-hour minimum second callback payments. He won, based on the following reasoning (6 LAC 2d at 431).
In interpreting the agreement of the parties as expressed in art. 11.08(b)(i) we find that call-out work is that work performed during the period between the time an employee who has been called in to work when not previously scheduled punches in and the time when he punches out. When the employee has punched out with the permission of the supervisor, the call-out work has come to an end. Any subsequent recall to work, no matter how short the time interval may be, constitutes a separate and distinct call-out. It matters not whether the employee is called out from home, from a party he may be attending, from a local pub, or because he was seen passing the premises or even if he is still in the parking lot. A subsequent recall is subsequent because it came after the end of the work performed on the first call-out.

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As usual, those words must be read in the context of the facts of the case. Mr OShea focused on the fact that the Grievor had punched out. However, the key fact is that before the Grievor did so he had been told that he could go home because the planned work had been put on hold and there was no reason to think he would be required any further that day. Only after that, and after having recorded his stopping time on the clock, was he informed that further work had suddenly become available for him to do. In sum, he was released for the day, then recalled a second time for other work. By contrast, an employee who is called in for one purpose may then be assigned other duties during the minimum paid callback period without triggering a second callback: see Re Lennox & Addington County General Hospital 25 LAC 3d 97 (Emrich 1986) and cases cited therein.

In our case, an Officer knows about the second court appearance long before being released from his duties on the first. Far from being released for the day, then recalled again, the Officer is in effect allowed by the Employer to stand down during the interval between the two court appearance. The Officers situation is more like that of an industrial employee who, having been called in to do emergency repair work, is told that the emergency work is postponed, but that other work will required of him as soon as the operating line can be shut down, that there will be a one hour delay, and that he is welcome to stand down and go for lunch in the interim. In such a case, the industrial employee has not been recalled twice. Whether, in order to track his time or to legitimize his presence at an off-site restaurant, he was told to punch out during the break would not change the fact that only one callback took place.

I agree with the Employers interpretation of the wording of the Collective Agreement. I turn now to the issue whether the parties practice since 1982 changes the outcome in this case.

Neither party seems to have noticed the significance of the 1982 change to the minimum callback payment. Of course, Officers immediately began to receive a minimum of four hours premium pay for each callback. However, the change to four hours made it possible for an afternoon court appearance

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to begin before the minimum paid time for a morning court had expired. No doubt a grievance would have been filed if the Employer had then begun to refuse a second callback payment in such circumstances, and no doubt the grievance would have been resolved by the parties or resulted in an arbitration decision. The wording may or may not have been renegotiated in subsequent Collective Agreements. None of that happened, however. Officers continued to file court cards claiming two callback payments in the overlap circumstances. The Employer never gave notice that such payments were unwarranted until 28 Jan 98, the date of the first Routine Order, and never sought to recover any of the payments made until the order was re-issued on 06 Oct 98. The Association says that I should allow this grievance - that I should rule that two callback payments must continue to be made in the circumstances - because of some 16 years of past practice.

Im not sure why the Association thinks I should do that. A long-standing practice does not, of itself, change the plain meaning of the Collective Agreement. I assume that the Associations position is that the Employer is estopped from unilaterally changing the practice, but I wasnt told why.

The Employer conceded that estoppel might be created by an open, notorious practice, but argued that only a practice known to both parties will suffice. With that in mind, the Employer called as a witness Mr Lorne Perron, the retired former Director of Labour Relations with the Metro Police. Mr Perron began working there in 1971, as a Labour Relations Officer, and retired on 31 Jan 95. He was told that the evidence at this hearing proved that, since 1982, Officers who appeared at a morning court and, later that day, appeared at an afternoon court beginning within the four hour minimum payment period, had been filing two court cards and receiving two callback payments. He testified that he had never known about that situation. No other testimony was heard from any other management personnel.

Mr Perron explained that court cards were received at the pay office and that payment details were handled by bargaining unit personnel (Class 4 or Class 5 Clerks). Management personnel did not

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make a practice of comparing payment details with the court cards. When asked whether payroll clerks worked according to management orders, he answered I hope so. He didnt know how often auditors reviewed payroll records, or whether they reviewed such details: I dont know either. It is important to note that the issue isnt whether anyone behaved improperly in paying or receiving sums unauthorized by the wording of the Collective Agreement between 1982 and 1998. I think what happened is that neither the Employer nor the Association noticed the fact that the 1982 change to a four hour minimum callback payment turned morning and afternoon appearances into one callback event in some cases. I know that the Employer noticed it in 1998: thus the notifications to the Association that two callbacks would no longer be paid in such circumstances.

The sole issue is whether there is any reason why the Employer couldnt begin to take advantage of the Collective Agreement wording as of 1998, and to prospectively stop the anomalous payments. The mere fact that no one had noticed the anomaly for some 16 years is not such a reason.

As noted earlier, I was left uninformed about what transpired after the issue of the Routine Order on 28 Jan 98 and its re-issue on 06 Oct 98. That may be because I was appointed by the Minister to determine a dispute with respect to Callback Entitlement (Court Attendance) - Violation of Article 5:05 (a) of the Uniform Collective Agreement: Routine Order October 6/98, No. 1783". My decision is that the disputed order of 06 Oct 98 - the reissued order - was a proper management order in accordance with the Collective Agreement.

The grievance is dismissed.

Issued at London Ontario on 29 Feb 00

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B Welling Arbitrator

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