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HomeMy WebLinkAbout1986-0602.Furniss.87-11-17Between: IN THE MATTER OF.AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Before: For the Grievor: For the Employer:. Hearing: OPSEU (W. Furniss) and The Crown in Right of Ontario (Ministry of Natural Resources) E. K. Slone .Vice Chairman S. R. Hennessy Member G. J. Milley Member J. Masher Counsel Gowling and Henderson Barristers and Solicitors M. B. Furanna C-ordinator, Staff Relations Personnel Policy Sectibn Ministry of Natural Resources October 15, 1987 Grievor Employer DECISION This grievance concerns the seniority rights of seasonal employees in the unclassified service. .The Grievor in this case claims that he has completed the probationary period provided in.Article.3.18 of the Collective Agreement, and therefore had the right to be recalled in the summer of 1986 under Article 3.20.1. The precise issue which we must decide is whether or not the Grievor had satisfied the requirement of working "at least eight consecutive weeks each, worked in consecutive years in the same position in the same Ministry". The parties have assisted the Board by entering into an agreed Statement of Facts, which is reproduced bet-e, minus then appendices: 1. The Grievor, William Furniss, was employed by the Ministry of Natural Resources in the capacity of a Park Warden, classified as a Resource Technician 1, during the summer months of 1983, 1984 and 1985. 2. The Grievor worked in different parks, each in a different region of the province, in each of the three years as follows: May 5 to September 4; 1983 Sibbald Point Provincial Park Maple District Central Region June'4 to September 3,.1984 Kakabeka Falls Provincial Park Thunder Bay.District North Central Region - 2 - May -14 to May 19 and June 10 to September 1,. 1983 Algonquin Provincial Park Algonquin District Algonquin Region 3. The contracts for each of these periods of employment are attached ads Appendix A. 4. The parties do not dispute that, with minor,variations, the Grievor performed essentially the same duties in each park. 5. ,In each park, the Grievor reported to a different supervisor and manager. 6. Appendix B is a map of Ontario showing the location of each of the relevant parks. 7. 'The Grievor was not offered employment.as a Park Warden in any provincial park in 1986. 8. The Grievor claims that he completed his probationary period as per Article 3.18 of the Collective Agreement, and therefore had recall rights under Article 3.20.l.in 1986. The issue to be determined therefore is the meaning of the word "position" as it is used in the seasonal language of the Collective Agreement. The Board has jurisdiction to determine this issue. It is useful to set out the relevant Articles of the' Collective Agreement, which are 3.16 - 3.21.3.' SEASONALEMPLOYEES 3.16 'Sections 3.17 to 3.35 apply only'to seasonal employees. DEFINITION 3.17 A seasonal employee is an employee appointed for a period of at least eight (8) consecutive weeks to~an annually recurring full-time position in the unclassified service in a ministry. For purposes of this definition full- 'time means a minimum'of thirty-six and one-quarter (36-l/4.1 or forty :, ..i 3.18. 3.19.1 3.19.2 - 3 - (40) hours per week, as applicable. PROBATIONARY PERIOD 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. (emphasis added) SENIORITY A seasonal employee's Seniority within a ministry will aC,CUmUlate upon completion of his probationary period and shall include: (a) all hours' worked as .a seasonal employee at the straight-time rate: (b) periods of authorised paid leave in accordance with Section 3.31, Attendance Credits and Sick Leave. A seasonal employee will lose his seniority when: .,, (a) he voluntarily terminates his employment, (b) he is dismissed (unless such dismissal is reversed through the c grievance procedure), (c) 'he is absent without leave in excess of ten (10) consecutive. working days, (d) he is unavailable for or ' declines an offer for re-employment as provided~in Section 3.20 (Job Security), or (e) he ceases to be in the employ of the ministry for a period of more than twelve.(l2) months. , ~3.20.1 3.20.2 3.20.3 3.21.1 3.21.2 - 3.21.3 - 4 - JOB SECURITY Seasonal employees who have completed their probationary period shall be offered.employment in their forme~r positions in the following season on the basis off seniority. Where the Employer reduces the number of seasonal employees prior to the .expiry date of employment specified in the contra~cts of employment, seasonal employees in the same position shall be laid off in reverse order of seniority. A seasonal employee is responsible for advising his ministry, in the manner established by hiss ministry, of his current phone number and address and is responsible for the accuracy and completeness of the information provided. WAGES The rate of the equivalent civil service classification shall apply. If there is no equivalent classification, the rate shall be set by the ministry and the Union shall have the right to negotiate the rate during the appropriate salary negotiations. Seasonal employees shall be entitled to the same provisions regarding retroactivity of salary revisions ads those~agreed upon for the Civil Service Salary Category ~to which they correspond. Seasonal employees shall be eligible, based upon merit, to, progress through the salary range at the start of each period of seasonal employment in the same position in the same ministry after they have completed their probationary period. -. 5 - Prior to the 1984/85 Collective Agreement, seasonal employees had no job security whatsoever. The language of Article 3.18 derives. from the Award of a Board of Arbitration chaired by Kenneth Swan, which put such a scheme in place for the first time. In the relevant section of an otherwise lengthy Award, Mr. Swan states as follows: "In our view, any employee who'completes two full consecutive work seasons in the same position in the same ministry will have provided the employer with ample opportunity to assess the employee's qualifications for regular status, and we therefore award that Clause 3.17 be amended to reflect this maximum period of service as a probationary employee." (emphasis added) While the numbers have changed, it is clear that these chosen words of Mr. Swan were incorporated directly into Article 3.18. We'must decide-what the word "pos,ition" means in Articles 3.18 and 3.20.1. Thz interpretation urged upon us by the employer is a narrow one. We are urged to hold that in the case of the Grievor, he worked in a different position in each of 1983, 1984 and.1985. It is suggested thatto be a Park Warden in Algonquin Park is not the same position as to.be a Park Warden in either of Sibbald'Point Provincial Park or Kakabeka Falls Provincial Park.' Indeed, it was submitted to us that it is a different position to be a Park Warden at the East I f r - 6 - Gate.of Algonquin Park than it is to be Park Warden at the Western Gate of Algonquin Park. In other words, we are urged to find that a position in this context refers to a spe'cific location within a specific organizational branch,.where duties 'are performed that may be similar to duties performed in other "positions". It was submitted to us that this interpretation ,is consistent with the traditional usage of the word "position". Counsel for the Grievor, on the other hand, urged us to conclude, that the word "position" is used more broadly. It is suggested.that we look to the purpose of creating.a scheme of limited job security for seasonal employees, and inrerpret Article 3.18 in a manner that.is consistent with some meaningful rights. Our decision on this issue will have considerable impact upon the level of job security to.be enjoyed by seasonal employees. If the employer is correct, then an employee would never pass the probationary period of two' years if he worked asa Park Warden in successive years in every park in the Province. It would also be open to the employer to hold back seasonal employees from obtaining any seniority, by refusing to assign them to precisely the same job position in the same location in any two consecutive years. This does not make a lot of sense from either 'the - 7 .- employee's or the employer's point of view. Since the purpose of a probationary period is to have a lo&enough opportunity to observe the performance of a candidate, it does not necessarily follow that the employee must be performing throughout that period of time in the same location. It would give the employer a sufficient opportunity to assess the suitability of a candidate so long as he is performing essentially the same job, and so long as the appraisals of the employee's performance were conducted by someone in a good position.to observe that performance. . To use the Grievor as an example, the employer's interest is equally served by having the Grievor serve as Park Warden in two different parks. It was conceded that the functions performed by the Grievor in the different parks were essentially the same. While it might be advantageous for the employee to be assessed in two consecutive years bye the same supervisor, there is no guarantee that the same supervisorTwill still be available in the same location. From the point of view of the employees, it seems most fair for seniority rights to begin to build upon completion of a number of years performing a particular job function within a ministry; as opposed to a narrower experience that is geographically based. My view is re- enforced by the provisions of 3.19.1, which provides that - a - seniority will accumulate on the basis of all hours worked'as a seasonal employee within the ministry. The seniority itself is not,based.upon the number of hours worked in a particular position. Thus, when it comes to recall, the choice between two candidates for a given position will be based upon their overall seniority within the ministry. So, in a situation where two former employees working in precisely the same location are vying for the same position in that location, it is the candida.te with the most overall seniority who is entitled to the job. As such; it would be artificial and contrary to the intention of this part of the Col,Lective Agreement to withhold this limited measure of job security ~from someone and consider.him still probationary merely because he had moved around geographically and never touched ground in the same place for more than one season. . I am further re-enforced in this view on a strict construction of Article 3.18. The words used are "the same position ih the same ministry". .If the word "position" itself imported a specific location within'a specific organisational branch, then it would have been totally unnecessary ta add the words "in the same ministry". Those words would have no meaning because the same narrowly defined position would obviously be within the same ministry. If there is ambiguity, we should favour a construction that does not render words superfluous. Rather, the wording suggests - 9 - that the drafters of this language considered it possible for. there to be the same positions (i.e. equivalents) in different ministries. While Park Wardens would not be a good example of this possibility, there are literally hundreds of position titles that come to mind that occur in more than one ministry. It is clearly the intention of Article 3.18 that a probationary employee work for two consecutive years in the same ministry in order to get on to the seniority list. As Article 3.19.1 provides, seniority is then accumulated on a ministry-wide basis. Both counsel referred us to other Articles in the Collective Agreement where the word "position" is used. ,In particular, our attention was drawn to Articles 5 and 24. Upon close scrutiny of these Articles, we are not satisfied that the word ~"position" is used in all contexts to mean precisely the same thing. It 'is not a term of art. One can draw suppo~rt for both competing positions from other Articles c within the Collective Agreement,, and we therefore find this approach,to be not too helpful. Counsel for the employer drew our attention to the definition of "position" in the Ontario Manual of Administration. It is admitted that this document is merely a management document that was not arrived at through any consensus involving the Union. ,Nevertheless, it is cited to - 10 - us as giving some insight into the meaning of the word. The .definition of position is as follows: "Position" ~A grouping of duties and responsibilities: . established by management and . performed by an individual or group of individuals within a specific orqanizational unit: . established in IPPEBS. We do not regard this definition as particularly helpful. It merely demonstrates that the word "position" is somewhat generic until specifically identified as a term of art within a given context. It is our view that the word position within Article 3 of,the Co,llective Agreement does not mean precisely what it is defined to mean in the Ontario Manual of Administration. We therefore conclude that in the case of this Grievor, he held the same position forthree consecutive years in t,he same ministry,and has accordingly completed his probationary period.. We find that in his particular case, the position held by the Grievor was that of Park Warden. We do not suggest that in every, case, the "position" is equivalent to a particular job title. A title is nothing more than a title, although it provides some evidence that the substance of a particular job is similar to the substance of another job bearing the same title. In many cases there . - 11 - will be little doubt as to what is a position; in other cases., it will be a factual question as to whether or not the substance of the job and the nature of the duties are sufficiently similar to be considered the same position. It may be that in future negotiations the parties may wish to be'more specific in the language of Articles 3.18. There is certainly room for further clarity. In the result, the grievance is allowed and we find that the Grievor had completed his probationary period and was entitled to be considered for seasonal employment in 1986, such consideration to have had reference to his seniority. We were advised that the parties would attempt to deal with the specific consequences of our ,decision, and it is therefore not asked of us to award any remedy .or even to find that the Grievor is entitled to a remedy. It is possible that there would have been no job for him in 1986 even if his sen~idrity had been recoynized. These are issues that we will leave up to the parties to ~attempt to resolve. If they have any difficulty'in implementing this award, the. Board will remain seized of the mat.ter. Bated at Toronto, this 17th day Of November,~~1987. E. K. Sloan - Vice Chairman S. R. Hennessy - ___-_._ ~ ___...-.- _ -,.a.- --r=-=- G? /AA.:.... - 1