Loading...
HomeMy WebLinkAbout1986-0275.Saunders.87-11-12Between: 'OPSEU (GloriaiSaunders) IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD The Crown in Right of Ontario (Ministry of Natural Resources) Before: M. K. Saltman Vice Chairman I. Freedman Member a/ D. A. Wallace Member --. For the Grievor: R. Wells Counsel Gowling and Henderspn Barristers and Solicitors For the Union: M. M. Fleishman Law Officer Crown Law Office Civil Miriistry of the Attorney General Hearings: September 30, 1986 January 21, 1987 . 2 AWARD The Grievor in thi,s case, Gloria Saunders, claims that the Employer violated her seniority rights under the collective agreement by failing to offer her employment in 1986 as a seasonal employee in the position of Fire Services Clerk in the Fire Centre for the.North Central Region in Thunder Bay. The facts which led to the grievance are as follows: The Grievor was hired as a seasonal employee in the position of Fire Operations Clerk in 1977. From 1977 to 1984, she worked in the same position as a seasonal employee from approximately April to October of each year. In 1985, the position of Fire Operations Clerk was eliminated and'the position of Fire Services Clerk was created. The Grievor was offered employment as a seasonal employee in the position of Fire Services Clerk, which. she accepted. In 1986, the position of Fire Services Clerk again became available on a seasonal basis. But, instead of offering the-position to the Grievor, a competition was held. Although the Grievor applied for the position, she was not the successful applicant. As a result, a grievance was filed. Although the grievance alleged that the Grievor had been dismissed, the essence of her claim was that the Employer was obliged to offer her employment in 1986 as a seasonal employee in the position of Fire Services Clerk as she had worked in the "same position" for ~~ two consecutive seasons. The Grievor's claim is based on a violation of.Article 3.20.1 of the collective agreement, which reads as follows: "JOB SECURITY 3.20.1 Seasonal employees who have completed .- their.probationary period shall be offered employment fin their former positions in the following season on the basis of seniority. I . . . . Article~3.20.1 provides some measure of,job security for seasonal ~+employees who have completed their "probationary period". The "probationary period' for seasonal employees-is set out in Article 3.18 as follows: "PROBATIONARY PERIOD 3.18 The probationary period for a seasonal employee'shall be two (2) full periods of seasonal employment of at least eight (8) consecutive weeks each, worked in consecutive, years in the same position in the same ministry." The combined effect of Articles 3.20.1 and 3.18 is to give preference for re-employment based on seniority to seasonal employees who have worked for at le~ast two consecutive seasons (comprised..of at least eight weeks each) in the "same position in the same ministry". employee" Resources seasons. ~"same pos i 4 There was no dispute that the Grievor was. a "seasonal or that she was employed in the Ministry.of Natural for at, least eight weeks in each of two consecutive The dispute centres around whether she worked in the tion".~ Both parties based their submissions on.a comparison between the 1984 and 1985 seasons (presumably because the provisions giving job,security to seasonal employees came into effect with the current collective agreement). The evidence indicates'that the Grievor was employed as a Fire Operations Clerk in the Fire Centre for the North Central Region in Thunder Bay from approximately April to October of 1984. ,,,.The Fire Centre in Thunder Bay is the Regional Readquarters for firefighting operations in the North Central Region. One of the functions served by the Fire Centre is to disseminate information about fires and_.firefighting operations within the Region. Throughout the relevant period, the Supervisor responsible for this function was Ralph Checkley, who was referred to as the Fire Operations Supervisor. There were four employees under Mr. Checkley's supervision: a group leader, known as a Fire Operations Clerk, and three clerks, .known as Ass.istant Fire Operations Clerks. ,. ;_ From 1977 to 1984, the position of Fire Operations Clerk was filled by the Grievor. Her function, it appears.; was to coordinate the dissemination of information to and from the Fire Centre. As a .practical matter, the Grievor was responsible for . . 5 three main ar~eas: radio operations, computer operations and reception. Each of these areas was covered by one employee. Employees were assigned to these'areas~ on a rotating basis. The assignments were made by the Grievor. The job of the employee assigned to radio operations was to maintain radio contact with aircraft and other fire detection vehicles and to maintain a log of radio transmissions to ,and from the Fire Centre. Up. until 1984, the job of the employee assigned to computer operations was to operate the telex machine. In or around 1984, the telex machine was replaced by a computer. One of the first systems to be introduced onto the computer was an electronic mail system. In 1984, the responsibility of the employee assigned to the computer function wasto operate the electronic mail system. The job of the receptionist was to ~answer the telephone: direct telephone calls and visitors-to the Fire Centre; maintain display boards; and coordinate the flow of information between-the Operations Centre and the Communications Centre. Throughout the relevant period, the F,ire Centre operated seven days a week from 8:00 a.m. 'to 7:00 p.m. Although there was no requirement for either receptionist duties or computer operations a,fter 6:00 p.m., in order to accommodate aircraft arrivals, radio operations continued until 7:OO p.m. 1; 1984, the Grievor worked according to a fixed schedule, Monday to Friday from 8:00 a.m. to 5:00 p.m.; the Assistant Fire 6 Operations Clerks worked on a seven-day rotation, either from%- 8:00 a.m. to 6:OO p.m. or from 9:00 a.m. to 7:00 p.m., according to a schedule prepared by the Grievor. Although there was a schedule setting out shift assignments, work was assigned by the Grievor on an ad'hoc basis. Because of her experience, she often assigned herself to work on radio operations. In addition to assuming responsibility for radio operations (or done of the other areas, i.e. computer operations .: or reception), the Grievor supervised the Assistant Fire Operations Clerks in the performance of their duties. As group leader, she assumed responsibility for the accuracy of all information transmitted from the Fire Centre. In addition, she participated in ~the hiring of new clerks, including reviewing applications for employment and participating in the employment interview: signed employee-time sheets: assigned the performance of overtime (in the event of the late arrival of an aircraft) and verified claims for overtime payment: and participated in the performance evaluation of a least one staff. member. Although the Grievor's supervisory responsibilities were ongoing, the actual time spent in the performance of her supervisory functions was only about 15 percent of the Grievor's working hours: the rest of her time was spent working in one of the three main areas of responsibility, Le. radio operations, computer operations or reception. .7 Subsequent to,the close of the 1984 season, the Fire Centre was reorganised. As part of the reorganisation; some ,of the responsibilities of the Centre were transferred to another section. As a result of the transfer, there was a reduction in the duties of Fire Operations Supervisor (who was renamed the "Fire Intelligence Officer") and a transfer of supervisory responsibilities from the position of Fire Operations Clerk, which was eliminated, to the position of Fire Intelligence Clerk. In place of both the Fire Operations Clerk and the Assistant Fire Operations ~Clerks, a new position known as "Fire Services Clerk" was created. The incumbents of the new position were the Grievor and the former Assistant Fire Operations Clerks (or the~ir replacements). The duties of the new position were similar to those of the former Assistant Fire Operations Clerks. There were no supervisory responsibilities attached to the position. All of these responsibilities, including scheduling staff; ensuring that the work was adequately performed: assigning overtime and verifying claims for overtime payment: participating in staff evaluations: and hiring of new staff, were transferred to the Fire Intelligence Officer. The Grievor was also rel~ieved of responsibility for checking the accuracy of information transmitted from the Fire Centre and for the requirement for archiving certain information for historical purposes. In 1985, all of the Fire Services Clerks, including the Grievor, were scheduled on a master rotation covering two shifts, seven days a week. The Grievor, in particular, worked from I 8 Sunday.to Wednesday, inclusive, either on the 8:00 a.m. to 6:00 p.m. shift or the 9:00 a.m. t,o 7:00 p.m* shift, depending on the schedule. For the first time in 1985, the schedule included work assignments. Employees were scheduled. to work in one of the three main areas of responsibility, i.e. radio operations, computer operations or reception, on a weekly basis. Although there was some. flexibility in the work assignment depending upon the level of firefighting activity, the Fire Services Clerks ich they were assigned according to generally performed work in wh the schedule. Unlike 1984, when overtime.coverage was arranged by the Grievor, in 1985, overtime was performed by the person who was ,'Z ~,... assigned to the radio operations function. If that person was unable to work overtime, a replacement was arranged either by an . individual known as the Fire Duty Officer or.by Mr. Checkley.~ * Moredver, unlike 1984, when the Grievor was responsible for all three work areas, in 1985, the Grievor was responsible only for the area in which she was assigned. 'C.. Based on these facts, the union submitted that.the Grievor worked in the "same position" in both the 1984 and 1985 seasons and, therefore, tha~t she had completed her probationary period and attained seniority status, 'thereby giving her preference for re-employment in the following season. In support of its submission that the Grievor worked ,in the.'same position" for two consecutive years, the Union claimed 1) that the Grievor performed substantially the same duties in 1984 and in 1985; 2) that she performed ail of the duties in 1985 that she had performed in 1984, thereby enabling the Employer to assess her suitability for re-employment in the position: and 3) that the supervisory functions which were eliminated in 1985 ituted a small portion of the job only. const The Employer submitted that the Grievor had not completed her probationary period and, therefore, tha~t she had not attained seniority status by the end of the 1985 season as she Chad not worked in the "same position".for two consecutive years. The issue to be determined is whether the Grievor worked in the "same position" in 1984 and.in 1985. I The evidence indicates that, with~the exception of the supervisory functions, the work which the-Grievor performed -tf* in 1984 in the position of Fire Operations Clerk was substantially similar to the.work she performed in 1985 in the position of Fire Services Clerk. For a number of reasons, however, that exception is critical. Firstly, although accounting for only 15 percent of the Grievor's time, the supervisory responsibilities permeated all of her other job functions.- For instance, the Grievor could be called upon at any time to exercise her supervisory responsibilities even when she was performing other non-supervisory functions. Sec~ondly, 10 although presumably there were some functions which could have been removed from the position of Fire Operations Clerk without substantially .altering its character , supervisory functions were in a different category. When the supervisory functions were removed, the character of the position changed substantially. There was no suggestion that the reorganisation which led to the transfer of supervisory functions to the Fire _, Intelligence Officer was done for other than legitimate business reasons. There was some suggestion, however, that unless the term "same position"~was given a broad interpretation, the Employer could avoid the effect of Articles 3.20.1 and 3.18 merely by altering some of the functions of the position. There is no indication that that is what happened in this case. .., +foreover, not every change in job function will result in.the creation of a~ new positionand, therefore, have the effect of avoiding the job security provisions of Articles 3.20.1 and 3.18. That will occur only where , as in the case at hand,, there is a significant change in job function. Notwithstanding the change in job function, the Un.ion submitted that.the Board ought to find that the Grievor had completed her probationary period and attained seniority stdtus (which is the.basis of job security fdr seasonal employees) as the Employer had the opportunity to assess the Grievor's performance in the position because she had performed all of the duties in 1985 that she had performed in 1984. That may be so, 11 but seniority for seasonal employees is a creation of.the collective agreement and the agreement sets out the conditions for the attainment of seniority (Art. 3.18). Under the collective agreement, seniority is attained only when employees have worked in the 'same position" for two consecutive seasons. In this case, even though there was an overlap in job function, for the reasons set out above, the Board finds thatthe Grievor did not work in the "same position" in 1985 as she did in 1984. Accordin~gly, she failed to attain seniority within the meaning of the collective agreement. She, therefore, had no contractual - . prefer~ence for re-employment or job security.in her former position. Accordingly, the Board finds that there was no violation of ~the collective agreement and the grievance must be dismissed. DATED AT TORONTO, this 12thday of Noveiaber; 198.7. M. K. Saltman - Vice Chairman I. he&man - Member . . D. A. Wallace - Member