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Home My WebLink About1991-2348.Orr.95-01-03IN TEE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Orr) - and - The Crown in Right of Ontario (Niagara Parks Commission) BEFORE: Grievor Employer N. Backhouse Vice-Chairperson I.~ Thomson Member D. Montrose Member FOR THE UNION K. Waddingham Counsel Ryder Whitaker Wright .Barristers & Solicitors FOR TRB EMPLOYER C. Peters Counsel Hicks Morley Hamilton Stewart Storie Barristers & Solicitors HEARING November 14, 1994 - Page 2 - DECISION The Grievor claims the difference in pay between the wage rate for a Regular Employee and a Seasonal Employee. 3. 4. 5. I, 1. 2. THE FACTS: The facts are not in dispute and are the subject of an Agreed Statement of Facts reproduced below: The Collective Agreement between the Ontario Public Service Employees Union and the Niagara Parks Commission provides f or two distinct employment statuses: Regular employees and Seasonal Employees. Regular employees receive the full wages and benefits provided for in Part A of the Collective Agreement. Seasonal employees’ compensation consists Oft wages as set out in Appendix II, Part B of the Collective Agreement, 12% in lieu of benefits and 4% vacation pay. The Collective Agreement in force during the relevant time is attached as Exhibit One. The grievor was hired as a seasonal janitor in the Food Services Department on April 6, 1989. Niagara Parks Commission’s peak season runs from approximately June to October each year. The Food Services Department consists of four restaurant locations and a number of snack bars. The four restaurant locations are Table Rock Restaurant, Victoria Park Restaurant, Diner-on-the-Green and Queenston Heights Restaurant. Table Rock Restaurant, Victoria Park and Diner- on-the-Green are located in Niagara Falls, and Queenston Heights is located in Niagara-on-the-Lake. The grievor was hired to work at Table Rock Restaurant. Since he was hired on April 6, 1989, the grievor has worked the following periods and at the following locations: (a) The grievor worked from his date of hire until July 4, 1989 at Table Rock Restaurant. He was terminated effective July 4, 1989 for failure to report for his shift. i ..2 (b) Cc) Cd) (e) (f) C&T) - Page 3 - The grievor was rehired on September 10, 1989 at Table Rock and worked until February 9, 1990, when he was temporarily laid off. The grievor was recalled to work on February 25, 1990 and worked at Table Rock until September 26, 1990, when Table Rock closed for renovations . The grievor requested a temporary transfer to Queenston Heights while the renovations were ongoing, and his request was granted. The grievor worked at Queenston Heights from September 26, 1990 until May 13, 1991, at which time the renovations at Table Rock were complete and thus he was recalled to Table Rock. The grievor worked at Table Rock from May 13, 1991 until October 26, 1991, when he was laid off. The grievor was recalled to Table Rock on December 23, 1991 and worked until October 17, 1992, when he was again laid off. The grievor has not worked for the Niagara Parks Commission since October 17, 1992. 6. Daring the period referred to in paragraph 5 above, the grievor has not worked 40 hours per week in each week worked. 7. There has not been a vacancy for a fall-time janitor at Table Rock between February 25, 1990 and the present. 8. On October 23, 1991, the grievor filed the attached grievance, Exhibit 2. 9. The Niagara Parks Commission was not required to, and did not, maintain a formal seniority list for regdlar or seasonal employees until April, 1993.” The Union relies upon Articles 1.03(d) and 24.03(d) of the Collective Agreement which are respectively the recognition clauses for Regular Employees and Seasonal Employees and are identical. They are reproduced below: “1.03(d) & 24.03(d) Seasonal Employees in Food, Retail and Attraction operations I may work a maximum of 50 consecutive weeks in a 12 - Page 4 - month period. Any o.f these employees working - more than 50 - consecutive - wkeks in a 12 month period shall be covered by the terms of this Agreement and not limited to Part B - Seasonal Employees.” The Union submits that the Grievor, having worked more than 50 consecutive weeks ins a twelve month period, should be declared a Regular Employee as of February 12th, 199.1. The. Union asks for this Declaration for the limited purpose of obtaining the difference in pay between Seasonal and Regular Employee for the period the Grievor worked beyond the 50 qualifying weeks. The Employer’s argument is three-fold. First, the Employer submits that the language of. Articles 1.03(d) and 24.03(d) does not entitle an employee who has completed the requisite time period to. be a Regular Employee. Rather, the Articles provide that such employee “shall be covered by the terms of this Agreement and not limited to Part B - Seasonal Employees.” Second, the Employer submits that if this Board should find that a literal interpretation of Articles l.O3(~d) and 24.03(d) supports the Union’s position, this Board should not hesitate to depart from such an interpretation as it is inconsistent with the purpose for which these Articles were put into the Collective Agreement. That purpose, the Employer submits, was as definition clauses to define Regular Employee and Seasonal Employee and not as seniority clauses. The Employer argues that the Board should not interpret Articles 1.03(d) and 24:03(d) as seniority clauses as this would result in- an inconsistency with the specific - Page 5 - seniority and job posting provisions in the Collective Agreement for Regular and Seasonal Employees. The Employer submits that the purpose of Articles 1.03(d) and 24.03(d) is to prevent abuse by the Employer of a practice of using seasonal employees instead of regular employees if the Employer has sufficient work available for a regular employee. This purpose is not engaged in this case, the Employer submits, because there was no regular position available. Third, with respect to remedy, -the Employer submits that when the Grievor was laid off on February 9th, 1990 and October 26th, 1991, that terminated the period of consecutive employment. Further, the Employer argues that when the grievor requested and received a temporary transfer from the Table Rock Restaurant to Queenston Heights on September 26th, 1990, that terminated the 50 consecutive week time period. The Employer submits that to come within the requisite time period in Articles 1.03(d) and 24.03(d), it is necessary to not only work in the same department but in the same location. FINDINGS: I The Board agrees- with the Employer that Articles 1.03(d) and 24.03(d) do not entitle an employee who has completed the requisite time period to become a Regular Employee and thereby bypass the posting and seniority provisions of the Collective Agreement. However, no such inconsistency with these other provisions of the Collective Agreement - Page 6 - arises from holding that Articles 1.03(d) and 24.03(d) entitle an employee who has completed the re.quisite time period to receive the difference in pay between Seasonal Andy Regular Employees. In our view, the purpose of Articles 1.03(d) and 24.03(d) is to provide the higher wage rate for. seasonal employees who have worked 50 out of 52 weeks. There is no issue that the Grievor’s period of consecutive employment wasp terminated when he was laid off on February 9th, 1990 and October 26th, 1991. The Grievor was rehired on February 25th, 1990 and worked until October 26th, 1991 when he was laid off permanently. The Grievor’s temporary transfer to another restaurant within the same department in our view did not stop the consecutive time period from running. CONCLUSION: Accordingly, this grievance is allowed. ‘The Grievor is entitled to the wage differential between a Seasonal Employee and a Regular Employee commencing the 51st week from February 25th, 1990, being February 12th, 1991 until October 26th, 1991. - Page ‘7 - This Board will remain seized in the event the parties have any difficulty in calculating the amount due to the grievor. Dated at Toronto, this 3rd day of horuary 1995. Nancy L: Backhouse, Arbitrator (J&son, Union Nominee D. Montrose, Employer Nominee