HomeMy WebLinkAbout1987-1937.MacDonald.89-02-077
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: EMPLOVtiS cJEL.4 COURDNNE DE LoONT*RIO
C$lMMISSION DE
SETTLEMENT REGLEMENT
DES GRIEFS
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between: OPSEU (2. MacDonald)
Before:
For the Grievor:
Grievor
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The Crown in Right of Ontario
(Ministry of Natural Resources) Employer
For the EmDlOYer:
Rearinus:
A. Sarrett
J. Solberg
J. Cowan
E. ShiIton-Lennon
Counsel
Caoa:luzzo, Hayes
Barristers and So
, Lennon
,licitors
Vice-Chairperson
Member
Member
#.B. Furanna
Co-nrdinator - Staff Relations
Ministry of Natural Resources
March 21, 1988
November 3.4, 198R
November 15, 1908
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DECISION
This grievance involves the interpretation of
provisions new to the Collective Agreement in 1985, relating to
job security for seasonal employees.
The facts are not really in dispute. The grievor is a
Resource Technician 2 (R.T. 2) who has been employed seasonally
by the Ministry of Natural Resources since 1981. His duties
involve tree planting, site preparation, boundary marking, and
recording and compiling information about the state of the
forest. While the work is called seasonal, in fact there are
duties to be performed by R.T. 2's 12 months of the year. The
Ministry's fiscal year starts April 1st and ends March 31st of
the succeeding year. The Ministry considers the early spring
to be the commencement of the season, because that is when tree
planting begins. Many projects the Ministry engages upon are
dependent upon funding. As the high spring and summer season
concludes, funding may become available and jobs can be
performed in the fall and winter as well. Seasonals, such as
the grievor, are given time-limited contracts, but may be laid
off during the term of their contract if their job is completed
or funding dries up. Alternatively, contracts are often
extended beyond the termination date if the reverse situation
arises. The gr.ievor's record of employment from
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1981 onward shows that he has had several contracts commencing
in the spring, which are sometimes extended into the fall. In
some years, he has been recalled after the expiration of his
contract and given a new contract in the fall and/or winter.
In 1981, the Grievor fell out of a tree and injured his
ankle. Surgery ensued and as a result he was not able to work
the 1982 season. Thereafter, he continued on whatever
contracts were offered to him until the winter of 1987. Over
the years between 1982 and 1987 it became apparent that the
grievor's surgery had not been very successful. His ankle was
deteriorating and further surgery was recommended. Hoping for
the best, the grievor put off this surgery until the spring Of
1987 when he dec'ided that his ankle was simply too painful and
disabling for him to effectively continue with his work and his
northwoods lifestyle. This disability was known to his
supervisors and sometimes discussed with them. In March, 1987
the grievor decided to have the surgery and it was scheduled
for April, 1987. His doctor told him that as a result of this
surgery, he would not be able to bear his full weight for three
months, and consequently could not work in the field, although,
he could have worked at an office job once he was in his
walking cast. Mr. MacDonald mentioned the surgery to his
supervisor, Mr. Stewart, in March after he had made the
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arrangements. He told Mr. Stewart that he would be unable to
do field work for three months, but hoped that they might find
some office work for him. Mr. Stewart told him he could make
no promises about the office work. Mr. Stewart also told him
that he might have been wiser to schedule his surgery during
the winter months when there wasn't so much work for R.T. 2's.
The grievor replied that he felt it would be too difficult to
get around in the winter in Blind River on a walking cast and
to perform the woodcutting and other chores required of his
lifestyle in the winter.
So the grievor had his operation and was able to bear
his full weight by July 21st. At that time, he telephoned Mr.
Stewart to tell him that he was available for work. There was
no work available then, but Mr. Stewart said he would keep him
in mind. On or about August 7th, Mr. MacDonald went into the
Ministry office and was told by Mr. Stewart that a short-term
contract was available for him. He was also told that he must
submit an application form for the job due to a new policy
regarding seniority. The grievor submitted his application and
was awarded the job. Shortly thereafter, Mr. MacDonald was
advised that because he had been unavailable for work in April,
1987, he had lost all of his seniority rights pursuant to the
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Collective Agreement and must start afresh as a probationary
employee. Be was paid a step 2 wage rather than a step 3 wage
that he would have been entitled to had his seniority rights
not been taken from him. And so this grievance arose.
The relevant provisions of the Collective Agreement
which govern Mr. MacDonald's situation are reproduced below.
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) or forty
(40) hours per week, as applicable.
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.
SENIORITY
3.19.1 A seasonal employee's seniority within a
ministry will accumulate upon completion of
his probationary period and shall include:
(a) all hours worked as a seasonal employee at the straight-time rate:
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(b) periods of authorized paid leave in
accordance with Section 3.31, Attendance
Credits and Sick Leave.
3.19.2 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 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 (12) months.
JOB SECURITY
3.20.1 Seasonal employees who have completed their
probationary period shall be offered
employment in their former positions in the'
following season on the basis of seniority.
3.20.2 Where the employer reduces the number of
seasonal employees prior to the expiry date
of employment specified in the contracts of
employment, seasonal employees in the same
position shall be laid off in reverse order
of seniority.
3.20.3 A seasonal employee is responsible for
advising his ministry, in the manner
established by his ministry, of his current
phone number and address and is responsible
for the accuracy and completeness of the
information provided..
The employer says that the most relevant provision
affecting the grievor is Article 3.19.2 (d), specifying that a
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seasonal employee loses his seniority when . . . "he is
unavailable for or declines an offer for re-employment as
provided in Section 3.20 (Job Security)".
It is not disputed that no offer of employment was made
to the Grievor in April, 1987. Management said that it did not
make such an offer because it knew full well that the grievor
was not fit for work. The Union says that the grievor did not
decline an offer for re-employment in April, 1987, and
therefore, should not have lost his seniority.
The issue is one of grammatical interpretation of the
relevant clause. What is the object of the word "unavailable".
Does it refer to a person being unavailable for work, or does
it refer to a person being unavailable for .an offer of re-
employment?
The Ministry has interpreted this Article 3.19.2 in
policy and procedure memos distributed to personnel and
management staff in the Ministry. One policy/procedure issued
by Personnel Services in August, 1986, explains the re-call
procedure in detail and sets out the following admonitions and
guidelines:
"If the Ministry is unable to contact the employee for
the purpose of recalling him, the employee may lose his
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seniority". . . "Three weeks prior to the commencement
of work in the seasonal position, the Ministry should
ensure that all employees with re-call rights to
available seasonal jobs have been advised of the
starting date for their job. Employees who have not
contacted the ministry or been advised of their date of
re-call, should be contacted by the Ministry. If the
Ministry is unable to make contact by telephone, a
telegram or hand delivered letter should be sent to the
employee advising him to contact the Ministry within
forty-eight (48) hours. Managers may select any method
of written communication that will provide written
proof of delivery or attempted delivery. When the
employee responds he should be advised of his starting
date".
Another policy/procedure memorandum issued at the same
time states:
"The major thrust of these changes to the Collective
Agreement is to secure for these employees rights to
on-going employment and enhanced benefits".
The employer took the position at the hearing, although
it was not borne out by the evidence, that the grievor was well
aware that he would lose his seniority rights by schedulling
his operation for April. The employer, in making its decision
to strip Mr. MacDonald of his seniority rights, was at all
times under the impression that Mr. MacDonald knew the
consequences of what he was doing in April. Although everyone
seemed to think that it was Mr. Stewart who had informed the
grievor that he would lose his seniority rights by having the
operation when he did, in fact Mr, Stewart could not recall any
discussion about seniority rights before the operation, nor in
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fact could he confirm that he was aware himself that Mr.
MacDonald might lose his seniority rights by having the
operation when he did. In retrospect, and after much
discussion between Union and Management representatives, it was
concluded that Mr. MacDonald ma have been in a position to
apply for a leave of absence without pay during the three month
recuperation period, had he applied for it while he was working
in March, and prior to the surgery. Of course up until this
time no seasonal employee had ever been granted leave of
absence without pay. But, subsequent to the discussion which
was engendered by the grievor's case, another seasonal employee
was granted a leave of absence without pay during a contract
period, due to an injury sustained off the job.
Some evidence was led by the employer to attempt to
prove that the grievor knew what he was giving up when he
scheduled~i his surgery, but we find that evidence to be vague
and inconclusive and accept the grievor's evidence that he had
no idea he would lose his seniority at the time he schedulf+d,:
and in fact underwent, his operation.
Having already-observed that the Collective Agreement
language was new, and that the meaning of Article 3.19.2 (d) is
capable of two interpretations on its face, and that this
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Article has not been interpreted by any previous panel of this
Board, we certainly would not charge Mr. MacDonald with the
knowledge of a proper interpretation of it.
In construing Collective Agreement language affecting
employees)seniority rights, we are guided by the principle that
those rights should only be affected by very clear language in
the Collective Agreement concerned, and that we should construe
the Collective Agreement with the utmost strictness whenever it
is contended that an employee's seniority has been forfeited.
Returning now to Article 3.19.2 (d), and construing it
strictly in favour of preserving seniority rights, (and we
might add in line with Ministry policies and procedures) we
have concluded that the word "unavailable" in that Article
relates to unavailability for an offer of re-employment. It
was not disputed that at all times the Ministry had Mr.
MacDonald's current address and telephone number and could have
made an offer of re-employment to him. As no offer of re-
employment was made, none was declined, and the grievor should
not have lost his seniority.
Accordingly, the grievance is allowed and the grievor's
seniority is restored to him. In addition, he shall be paid
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the step 3 wage increase he was entitled to for his contract
commencing August, 1987, and any extentions or
subsequent contracts thereafter. We will remain seized of
jurisdiction in this matter in the event there is any
difficulty implementing the award.
DATED at Toronto, this 7th day of February, 1989.
J. SOLBERG, Member 3