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HomeMy WebLinkAbout1990-0576.Erhardt.91-01-04IN THE MATTER OF AN ARBITRATION .Under TEE CRONN EMPLOYEES COLLECTIVE BARGAINING ACT Before TRB GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Erhardt) Grievor - and - The Crown in Right of Ontario (Niagara Parks Commission) Employer BEFORE: N. Dissanayake E. Seymour D. Montrose Vice-Chairperson Member Member FOR THE GRIEVOR B. Rutherford Counsel Gowling, Strathy & Henderson Barristers & SOliCitOrS FOR TBB EMPLCYER S. Gleave Counsel Hicks Morley Hamilton Stewart Storie Barristers & SOliCitOrS HEARING September 26, 1990 This is the grievance of Mr. Christopher Erhardt, which reads "1 grieve that I have not been recalled because of accusations". The settlement desired is 'I... reinstatement to my former position with reimbursement of any and all monies, benefits and seniority lost and that the incident be stricken from my record." At the commencement of the hearing the parties were in dispute as to who had the procedural onus of adducing evidence first. The Board heard evidence and submissions on that issue and this award deals solely with that. There is little dispute about the facts. The grievor first commenced working for the Employer as a seasonal employee in 1978. With the exception of the 1981 season, he worked each season including 1989. The %eason" usually runs from mid-April to mid-November. The grievor worked at various sites since starting as a seasonal employee in 1978. Since 1985 he worked each season as a golf attendant at the Whirlpool Golf Course. For the 1989 season he was appointed as a shift supervisor which had a higher rate of pay than that of a golf attendant. At the end of the 1989 season the grievor had a formal performance appraisal. The grievor's 1989 appraisal was a satisfactory one. The evidence indicates that it was the practice of the supervisor, if he was satisfied with the employee's performance during the season, to ask at the appraisal whether the employee was interested in returning for the next season. On this occasion the grievor was asked that and he indicated his interest in returning. Accordingly, the supervisor checked a box on the appraisal form .indicating "recommended.for rehire". The grievor was asked to contact the Employer sometime in March 1990. However, in the off-season, the'Employer discovered that during the 1989 season the grievor had permitted his cousin and a friend to play golf free of charge. The.Employer claims that when the grievor was confronted he was uncooperative. In any event the grievor admitted to the Employer that the Employer's allegation was true. In March 1990 the grievor contacted the Employer about returning for the season commencing in April 1990.~ He was advised that he will not be rehired in the shift-supervisor position he had in 1989. However, he was offered a position as a golf attendant, which had a lower wage rate. The grievor declined the offer and filed this grievance. The Employer does not dispute that if not for the free golf incident the grievor would have been recalled to his shift supervisor position for the 1990 season. However, the 4 Employer claims that in determining whether to recall the Grievor, and if so to which position, it was entitled to consider all of the circumstances including the incident. It concluded that the incident indicated that the Grievor was not trust-worthy. Therefore, it was decided that he should not be recalled to the position of shift-supervisor, which carried more responsibility and required independent work. However, despite the incident, the Employer felt it was appropriate to re-hire the Grievor as a golf attendant, because a golf attendant had much less responsibility and worked under supervision. The Employer takes the primary position that based on the facts this grievance is in essence an allegation of failure to recall and not of discipline. Thus, it is the Employer's position that the grievor has the procedural onus to adduce evidence first. In addition, the Employer claims that if the grievor had a right to continuous employment as he claims, he quit when he refused~to accept the offered position. .The Union characterizes this grievance differently. According to counsel, at the end of the 1989 season the grievor's legal status for the 1990 season had been decided and confirmed. That status was taken away by the Employer as punishment for a culpable act, namely contravention of the EXnployer's policy against allowing free golf. According to 5 counsel this makes the grievance essentially a disciplinary one. Alternatively, counsel informed the Board that she intended to pursue the grievance on the basis of a violation of the recall and job competition provisions of the collective agreement. Only a finding that this is a discipline grievance will obligate the Employer to proceed first. Therefore, for the purposes of this award, all that has to be decided is whether this is a discipline case. Since there is an element of "punishment", at first blush we found the Union's position to be attractive. However upon closer analysis, we have decided that such a conclusion is not legally defensible. For the Union to argue that the grievor was discharged (or disciplined) when he was not allowed to return for the 1990 season, it must show that the grievor had a legal employment relationship at tha time of the Employer action. As the Employer counsel rightly pointed out, you can only discharge or discipline a person who is at the time an employee. On the basis of the evidence we cannot conclude that there was any legal employment relationship between the grievor and the Employer at the time the latter refused to recall the grievor. The checking of the "recommended for re- hire" box in the performance appraisal form is just that - a recommendation by the,supervisor conducting the performance 6 appraisal that the employee is suitable for re-hire. That recommendation by itself does not create an employer-employee relationship. We heard evidence that during the 1989 season the seasonal employees had some concern about their status for the next season because a new manager was taking over. In the presence of a group of employees including the grievor, one of his co-workers asked a member of management, Mr. Robert McIlveen, "will we be coming back next year11 and received an affirmative answer. Once again, while this would have given assurance to the employees, we cannot find that a statement made during a casual conversation created legally binding rights in favour of all of the employees who were present. Mr. McIlveen admitted the conversation but testified that he was "just reassuring them that they will not be out of work because of the new manager". Wr. McIlveen testified that he gave that assurance because if there was no work in one area the employees would normally be found work in other areas. He said that he could not have guaranteed the employees that they will return to the same jobs they held because a lot of changes can happen in between seasons. In fact the evidence is that decisions are taken during the off-season to not continue certain operations ("package tours" was cited as a recent example) and in that case employees who had been recommended for rehire had no jobs to return to. 7 Counsel for the grievor relied on certain provisions in the "Niagara Parks Seasonal Employee Manual", a copy of which is handed to every seasonal employee upon hire. Specifically, she relied on the provision therein that "A satisfactory appraisal is required in order to be rehired next season". Leaving aside the dispute between the parties as to the legal significance of a provision in this manual, the Board does not find the quoted section to be of ‘any assistance to the grievor. We do not read that as stating that upon attaining 1 a satisfactory appraisal a seasonal employee is automatically re-hired for the next season. It suggests merely that a i satisfactory appraisal is a requirement - not necessarily the only requirement - for rehire. Even then the evidence is that employees have been re-hired without an appraisal.~ Although it was not clear exactly how many annual appraisals the grievor had between 1978 and 1989,. he could recall at least 8 one year when there was no appraisal done. Counsel also points to the provision in the manual that "Managers will indicate your rehire status prior to the end of the current season on your appraisal".. The rehire status indicated in the Grievor's 1989 appraisal is that he is recommended for re-hire, and not that he has been rehired. The evidence indicates that at the start of each season, each seasonal employee is required to go to the Human Resources 0 Dept. and sign a contract for the new season and complete other paper work. There can be no doubt that the employee’s legal status as an employee is created only upon the execution of the contract for the particular season. Therefore, it must also necessarily follow that the "employee status" must end upon the expiry of the contract at the end of the season. While the collective agreement may grant the seasonal employees some rights during the off season - (the only such right the parties could point to was the recall rights under article 6 of Part B of the Memorandum of Settlement between the parties ) - we are satisfied that the employee has no legal employment relationship during the off-season. It is not difficult for the 'Board to see that when the Grievor left at the end of the 1989 season, given his past. experience, his satisfactory 1989 appraisal, and Mr. McIlveen's assurance, he entertained the reasonable expectation that.he would be returning for the 1990 season as shift supervisor. However, that was the extent of his status - an individual with a reasonable expectation of being recalled to his former job. He had no legal relationship in the period pending the realization of that expectation. Therefore, he cannot be said to have been disciplined when the Employer refused to recall him for the next season. 9 This analysis can be illustrated in another way. As it happened, the Employer did not discover the Grievor's alleged culpable conduct until after his 1989 appraisal had. been conducted, and the season had ended. It is probable that if the alleged conduct was discovered,before the conduct of the appraisal, the Grievor would not have had a s.atisfactory appraisal. If that happened, and the Employer later failed to recall the Grievor for the 1990 season, it is inconceivable that the Grievor would have had any basis to argue that the failure to recall constituted disciplinary action. In our view, the coincidence of the timing in the discovery of the alleged conduct cannot change the legal nature of the Employer action. For all of the above reasons, the Board finds that this is not a discipline grievance. Given that finding, it remains to be determined whether the Union's other grounds based on a violation of the Grievor's recall rights or job competition rights are well-founded.. These are issues on which the Union will clearly be required to proceed first with its evidence. The Board will reconvene on the next appointed date to hear the merits of those issues. At such time the Union will be required to proceed first with its evidence. 10 Dated this 4th day Of January 1991 at Hamilton, Ontario <?zake vice-chairperson u I DISSENT" ( Without written reason) E. Seymour Member D. Montrose Member