HomeMy WebLinkAbout1993-0259.Union.94-05-18ONTARIO EMPLOY& DE LA COURONNE
CROWN EMPLOYEES DE L’ONTARIO
G,RIEVANCE CQMMI$SIOti
SETTLEMENT REGLEMENT
BOARD DES -GRlEF§
DE
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180 DUNDAS STREET WEST,- hITE’2100, TORONTO, ONTARIU. M5G 128 TE~E~~~ONE/T&I?PHONE: (4 16) 326- 1388 .
180, iwE DUNDAS OUEST, BUREAU 2io0, TORONTO (ONTARIO). MSG ‘128 PACSlMILE/~~L~COPlE: (4 16) j26- 1396 . . . .-
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259/q3
IN kEE' MATTER ‘OF'AN AR@I*RATiON.
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Under ,
THE CROti EMPLOYEES COLLECTIVE BARGAINING ACT
Before
TEE -GRIEVANCE SETTLEMENT BOARD
BE-EN '. CUPE (Union Grievance) .. i -. Grievor.'
- and -
The Crown in Right of Ontario ,, (Wdrkers' Compensation Boaed)
: _ . ‘Employer
BEFORE: M.Gorsky ._ Vice-Chairpersdn Member - P..Klynl *
M. O'Toole Member
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FOR'THE . P. Douglas
GRIEVOR National Repre.sentativ&‘ 1 ._
Canadian: Union of Public Employees . ._ ., _.
FOR-THE> -E. Baldwin . .
EMPLOYER : .-Employee Relations Specialist
-Workers' C?mpensation Board
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HEARING: ;. " Novqnber'25, 1993 %
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i / This is ,a Union grievance in which the .issue. between' the
par-ties concerns the interpretation of a r t: i. c 1 e 3.04 of the
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collective agreement, which is as.follows. . .
k Any disciplinary warning shall I be f:eeov;ht3 fdry z+;
employee's record ,.after two years - d e
offence; provided that. there have .been no simil.ar
wa.rn,ings in that. period, in which event the time for the
appl ication of .thi.s section sha 11 be counted from' the
date -of the succeeding warning.
The position o'f the. Union is -that the two year period provided
for in article 3.04. is'two calendar years, and that it.does not
matter whether the employee 'relying on the article was at/work
P during any of that period; all that is required is t,hat he/she be
an employee, and that two calendar. years have passed since the date
of the offence. that resulted in a disciplinary warning -without ii /
similair warning-being issued. For example, in'accordance with the,
Union ' s submission, an employee could rely on the running of .time
-under article 3.04 even if he/she was -absent from work on sick
leave, uni.on. leave -01 pursuant 'to iA11 injury for whidh .he/she was in '
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receipt .of Workers' Compensation benefits. 'i
In the grievance, dated .March 16, 199.2, the Union contrasted
its view of the meaning of the two year period/with that which it
ascribed to the Employer:
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. . . They have chosen to ignore the Collective Agreement's
reference to this issue . . . and have stated that this [the
removal of the disciplinary. warning from the employee's
record]' 'only applies if there is continuous and. uninterupted
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If a .person is off on sick le%ve or -W.;C.B. the-n
the. clause. [,&ccordi,ng .to the Employer] ',does,not ,ap~;ly .for the.; '
period they .were off.. .-... ., :. ~ .- 1 :',. . ., .. L
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I The position of the Union was 'that ,the 'normal 'meaning- of year is. , I ., .
calend.ar.year.. a , : .' ,, ._ '. : ,:. . '_ ,- !. :,_ .' :. .,., _. . .
The Employer took the position that the two year,period 1 . '. ._I .
represents not two calendar. years .;bu't t.wo years ~durikg which t1-1.e
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employee .wa's 11at work;'! In her reply on :behalf: o-f. the Em'ployer to r
th,e. Step 3 meeting.,. held tin. Apr.i.1 " 2'3, 1993,,Ms. 'Andrea". Hagan , :
Director, Muma;! Service.s,. stateg (Exhibit 2 1 : ' , . .
. . . The intent. of [article 3'.041 was rehabilitative . . . . . If
) the employee .is -not at work ', there is ,-no opijortunity for them .; ..I
[sic1 ,tO meet the- .expected standards and demonstrate that ;.-'
there has 1 sic1 been, "no s-imila'ir warnings" in two years.: .. -r,-/". : . 'Ms* Uagan, ..in Exhibit 2, .a.lso .referred to other requirements, .wh'ich . . . . I
in her view,. had to be"met for the article 'to apply:., That.the _ : ' . ..
employee re.lying on.' the :article also: "achieve work, perfomance and " ..
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behaviour expectations" .during ,th'e. two year period. .. As the issue '- .' '. . ,. _
presented to us~was . limited to the .difference .between the parties . . ". *. ., 3. _' .
'.,a& to the meaning in 'the article, of "two years," our deci:sion will . '_..'
:be' I.'imi.ted' t.o deciding that issue. We "would not?, however, .&at . . .I I :
th.e 0perat:ion of aL-ticl.e, 3.04...i.s trigg'ered not.by a demonstration _
-of som’e u n s t,a t B a level 0 1: "work -pErfor.maGce and behaviour.
expectations" but by the employee not having -received "similair
warnings," which must be "disciplinary" in nature. '.
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.I .' Both counsel 'employed the well-known. euphemism, llsunset . .
clause., " when re$erri:ng to article 3;04, and the Board was informed
that neither of' them-had- been able to identify -any previous -
'decision that dealt with the .interpretation of the- time,.frame set
out-. in such a -clause.
Roth' counsel relied. on certain rules.with respect to the
interpretation of collective agreements which'they endeavoured to
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apply to the language ,of art. 3.04.
Counsel for .the Empl,oyer referred US to the -text under
"Interpretation 0f Collective .Agreements," found' in Brown and
Beatty, Canadian Labour Arbitration (3d Ed.), at pars. 4:2000, .
p.4-24.1 and para. 4:2100, pp.4-24.2 .4-31. ..
-At p.4-24.1, the authors state:
Conceptually, the task of interpreting a. collective
agreement is no different than that faced by other
adjudicators in applying statutes, private contracts and
other authoritative direc,tives, and generally s$eaking,
arbitrators view and approach their function in much-the
same way. (Footnotes omitted). .'
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The Authors note, -at p.4'24.2':
: It has often been s.tated that the fundamental object in
construing. the terms 0.f .d c:ol.lec:,tl-ilrf? acpeement ‘is to .’
. discover the intention of the parties who agreed to it. .
(Footnotes'omitted) .' .. 1" .
Further in para.4:2100, at p.4-25, the- authors refer to the .
fact that, in interpreting a provision in a collective agreement, '
i arbitrators are sometime?:
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faced with a- choice between two linguistical.ly @ermissible
interpretations, however, arbitrators have been guide'd by the
,- 2 reasonableness of each possibl‘e interpretati&n; a~~n~in.i:st1-ative'
feasibility, ..and' which interpreta.tion wou 1.d giVe rise .t‘r, :
stiornal i.es.. 4:Footnot:esomitted) ,I.
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.Where the parties have chosen not to use .language wh-i-c:h would: . , _,,. -
make their .meaning.'i:lear beyond peradvtintux:e'. - ,as- is the ca:e ,i.n ' !
,th'e mattie; &fork'us
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- then arbitrators, . . in much the same way' as :. /
judges and other adudic,~tors interpreting ,statu-tes' and contracts,
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will seek. to find .the purpose- of a ../ pa l-t iu u 1 a r pro\rision In a -. . . . .
collective, agreement- tb ‘employ .'*s a guide to its interpretation' ' '. _ .,. ,. . .
'F$rthe.r in para, 4:.2100 at p.,?-25 of Brown and Beatty, the authors
. . , ,. : stat.e: : :. .-. ' '. ', . . : . The'bsearch for the purpose .of a particu1a.r provision, as .
_' -'a guide ' to. its proper .interpretat.ion ;. ,i:s per-hags. most
dramatically seen in the;various interpretations pl'aced
L'by arbitrators on such phrases.-as' "days,"' "work .days,"
: Wwork', weeKIlt " mo n.t h " and fhe like. ..,. In ‘such diverse '_
.r:oritr-?.xts as' entitlement to bereavement leave, or. ho1 iday
: pay,' and the right of the employer to .Lchgdule ttmpo-rail;;
shifts, arbitrator's have gencir.al‘ly assumed.,' unless. there ..
is .some:-clear express'ion of .intention to the contrary,'
that .the word . Wcal&~dafi~ Y&y " must be. taken. to. refer $0. a: ',
ra.the.r- than. a "wol-king" day.'
e'f.f ec t: t:'o.
Conversely, in
CJl:.d621- -to- -9 iie t h c Pl”.Yp$st;A ,’ under,lying the ,' .
: '_ .prob.at,ionary, peri,od,- arbitrators ,have been of. the view
.that in dete'rmining whether an empl~,yee has .izlorked the
.requisitc number of days to comple.te his probationary ._
period!.. one shoul'd ex&].ude- not only the c:aler;dar days
when the'.plant'was noi in.-operation; butall working days ..:
on which the. pr.ob.atiorrer : did not act..ually work. . . . ...
(Footnotes omitted.) ~_ '.. I._, .
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The Purpose of the.arti&le.-is invoked not to change what .-has -' : /
been said bi, the parties in -the collective agreement; but to
understand what they have said:‘. Words read by them'selves in the _
abstract furnish little guidance as to- t-he1 r meaning ; esisecially
' . .where a dictionary, may-.gitre mariy definitions of :the word. : It 18 ~ _- .._ ~' . . -. I - ,' ; '. .- . . i _' . .
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necessary, 'i-n order to derive the meaning of the-words used in an
article, to-connect. them with other words or ,things which express
an idea..
Although it is accepted that the object of an -article is- a
significant factor in assisting arbitrators to ascertain its
meaning, its object .does not exist in a vacuum any more than.the
words within :it do. So to say that we must first construe the
.words in ,the light. of .the object requires that object' to be
ascertained in some fashi0.n. In.referr‘ing to the .ascertainment ,of
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the object of a statute, the Supreme Court df Canada. in Glenn v.
Schofield, [14281 2.D.L.R:'319, stated, at p.320, that it is to be
ascertained from a reading of the statu.te as a whole in its'entire
context, and then'the particular section is to be read in light of
the. object.. Cf. E.A. Driedger The Construction of Statutes (1st
Ed.) a-t p.59.
But for the existence of-art. 3.04', the Employer could rely on
an employee's disciplinary record to justif,y the discipline it
\. invoked'on the ,occasion of a subsequent incident. Although Brown
and Beatty, in para. 7:4314, @.7-168, noie that:'
. . . Even apart from express provisions in the agreement,
arbitrators have on occasion ruled, that there are limits
as to how far back the employer may go in an employment
record to justify the discipline it invoked on' the
occasion of the culminating incident,... ,
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in context.,. 'the inclusion .,of art.'. 3 904 wgts ijltended to limit. how ". : '. *' '. .,
'. far back the Employer could go' to ‘re1.y ,'0n, discipl,inary warnings to ..I :
support its reliance on .a sub.seyuent. -disciplinary response.., .._ :
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Article .3". 04’ furnishes an employee who has a disciplinary * .' :
warning on his/her: r'ecord an o@port.un:ity to conduct., him/hers.elf in : . .
such a.-manner .so that. : "no .similar warning's'! are given during .the' \ ; . . .,
."two years from th.e date- ,of. ,the~ offense" referred to in ,the i
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articlk,, and 'to, thereby; .have that warning removed from -his/her.
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disciplinary record. : Thi,s, in .turn, would .deprive the ,Bmployer .of ..- 8. : the right to rely.on the ea.rlier disciplinary warning in imposirig _ . .
_. disc.ipl.ine :for -:a subsequent act- 'having disciplinary. consequenc,es. _. .. . '_
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In Re Rimberlv-Clark of Canada Ltd, (1372),,1 L.A.C. J2b) 43-4, .
(Lysyk) , the board, had to deal with a claim 83 the .employer. that .a,. :
written warnin. to an, -employee ias mer.el y a' d zic urne ntat ion of a 9.. . , . .I,
discussion wi'th,the grievor 'to,draw t-0 .his' 5.ttent.io.n its co,ncern
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about .job performance to furnish an incentive .to' impro’ve. The ,’ I. . ~ ., . . .
Gas of. . . " warning said,-to have been.:issued without the' purpcse _ : \. "buildi~~g a r,ecord ;" The'board went on 'to- say;. at p." 48: . .
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in -ourview the--critical .feature..distinguishing a warning
which can properly..be characterized 'as disciplinary from other
nonlgridvable) ,expressions of emplo.yer disapproval is.that in
the case of the former an employee -who. fails 'to briny= ,a ~
grievance may be .prejudiced in future- proceedings' of a
discipl'inary nature. In the case at hand, as we understand
it; the company has clea-rly taken the position that the
[written warning 1 wa.s not intended t'o be disciplinary in this
sense o,f establishing : a basis for further action. By so
c h a r a c t e I- i I, i n’g the.. [written .warning.l and un'equ.ivocally
representing it as a non-'disciplinary .comunir:ation, we at-e .of
.the-~ opi. r-1 ion, that .the company would .-be! estopped from.
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-' subsequently' tendering it in any future proceedings' of, a
disciplin,ary .nature that might be tak.en against the grievor.
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In referring to the' Kimherlv-Clark case as standing for .the
propositi.on that the, issuance o-f a letter of reprimand " is
generally considered to be ‘,an.act of discipline," G*W. Adams (as he t
then was), stated in Re Hiram Walker & Sons L,td; (1973).; 4 L.A.C.
(2d) 291, at p. 29‘3:
This documentation cre,ates a physical record of discipline for
the employee to facilita'te i.ts subsequent use should this I
:prove necessary . . . T i j
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Because of the. failure of the parties to .more precisely define
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the nature of thc'two yea,r period referred -to in article 3.04, it
has become. necessary .for .us
"reasonableness of- each possibl
the purpose'of .the provision."
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to examine such matters as the
e interpretation, in the l..ight of
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If the Union is correct. and the two year-s ar,e t.w.0 calendar.
years, then an employee- could be .absent from .work on some form of
leave for'that ,period, upon the completion of .which,. there being no'
similar warning, the disciplinary warning would have to be removed Ii
from'his/her record. According'to such an inte.rpretation, there ._
would be no need for the employee to demonstrate that he./she is l' ~
capable of so conducting him/herself in .a workplace environment I .,,
without engaging in conduct that results in a "similair" warn,.ing .
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It is. more -consistent 'with the .purpose of the article t.0 ':
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requir,e the emljloyee ' 'to ,.be .at work during the two yea&- period. i. n
order to see' whether he/she is able to conduct him/hers-e1 f .i.n su(zh
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a way so as to avoid receiving llsimilar warnings." t
Although- w e regard a s ..metaphysica 11 y inteLest. ing the
suggestion, made, to us by by counsel for the Union, tljat the period _ .
i is a calendar and not a work related one 'because an employee,. even
when ,'not at work, may'. commit 'breaches which would justify
. . disciplinary warnings, we also.‘.regard it as resting. somewhat . .
uncomfortably on the ground and.being incap,able of supporting the .,
.prOpOti‘ition’ FJUt to. US. Although there may be.. " t WC) 1 i n g u i s t i.c a 1 1 y ,
.permissible interpretations'!. of article 3.04, the one that would
requ'ire "two years": to be regarded as two calendar .yr-tars is a' less :
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reasonable one in the light of..the purpose of: the, p)rovisi.on. In
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order -:t-o interll/ret the agreement as suggested 'by coGnse1 for the
Union, .~the parties would have had to have spec~.fic'ally: defined
"year" as -as calendar year.
The Board recognizes that there are diverse contexts in which
boards of arbitration have had to consider whether a period of time'
is a calendar period o.r some period of work. 'Usin the examples
employed in Brown and- Beattyi we find, on the special facts of this
case, that they identify a'i situation that is closer to that
envisaged yhen a time' frame is found in the C!cJrlb?xt of probationary.
periods, than when it is found 'in'the context. of "entitlement to
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bereavement leave, or' holiday pay,
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and the right of the empJ.oyer to -
schedule temporary shifts."
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Counsel for the Employer. referred to Re Dartmouth GeneraA. _'
Hc,lr,ital and' Communitv Health Centre (1.982), 3 L.A.C. ..(30 420 ,'
(Langille), where the majority of ,the board stated,. at'p.424:
. . . . We agree with the general consensus among arbitrators
that.,,, the words i 1.1. t.11e rs.g l’filc?rllc?rl I, a f’e 1: c:, hctt
i.nt:erpreted i.n
'light of their context- and purpo.se. We'also. agree with
the majority arbitral posi.t;ion that: when the .wor-d "month"
is used in the contest of a description of a pr:obationary
pe r iod it i s to !:II? -.irl't~c:r.prel:cd' as beiny working month.
This obviously ~~oir~cides with and advances the purpose of,
establishing a probationary period at ~i1.1 . ..
We conclude that the term "calendar year;" if applied in article' -,
3.04, would not advance the 'purpose of .furnishing an employee with
the opportunity to demonstrate that he/she can work..ov-er a period . .
of time without receiving a disciplinary warning. =
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The majority of the board in Dartmouth,.at ~1.424, referred to '.
Palmer, Collective Agreement Arbitration in Canada- (19781, p.237, , - where the .author stated, in referring .to the meaning to-be given ,to
days in the contest of a pr.obatt:.onary article: ) ,-
The employer must be able to observe,'investigate and
a s Y es s the employee and this is only possible during
"working days."'
Given the object of article 3.04, it is difficult to.see how
) ? an employee who is not at work can demonstrate that he/she i.s
capable of functionin without committing a breach that l,eads to a
"similai." warning. , 7'
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In .the Dartmouth case, the majority of the 'Board al'so noted
iat p.4.24) that it- was necessary for it: ,.. .
,. . . . to'iread the agreement carefully in order to establish
whether the parties have turned the& minds to -.thc i.ssue
of the -meaning of such words as "day" or "month" in a way
that would i.ndicate th>at in .the article in question they '.
intended the word "month" ought to mean "calendar month."
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As in the Dartmouth. case, -we find nothing. in the .other
. articles in the agreement'before us that can be considere.d,-to be
significant merely because they refer to. certain 'tin& frames.
Where the agreement attempts to establish a time frame after which ,*
certain. disciplinary warnings will be ‘removed from an employee's
record, a& in the Dartmouth case (at p..425):
b.. we think that it must be interpreted in light 'of the
purposes which.that . . . period is meant to serve.
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-We a,lso note that in the Dartmouth case (i.bid.1 the bosrd
rejected a minority view tha,t- the article should riot be interpreted
"in a purposive way.": .
We find the references to other artic1e.s.i.n this agreement as
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being unhelpful, .in the. sense that in sok of them, where the : / ._
parties intended to refer to a calendar year,
they- did so, as in ' .I
article 19.01(2).
In another article ((15.Ol),'reference is to a "calendar month
of work. " I /
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It is unnecessary to go into the other articles that were
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refer.red to by counsel, exc.ept to state that we found nothing in'
them that was related to the. subject of the removal -of' disciplinary
warnings from an employee's record thatmight cause us to depart
,from the interpretation we have arrived at. . .'
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It was also suggested,to us by counsel for t-he. Union that we
should view the purpose of article 3.04 'as being to allow an
employee with.a disciplinary warning on his/her record to reflect
on his/her previous behaviour over a period of'two calendar years.
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If in the course of such reflection it transpires that no further
similar disciplinary warnings at-e- received by the em.ployee,.. then
Under such an ) the purpose of the article has been satisfied.
interpretation, it w.ould not.matter, whether -the employee was at
work or not. This' submission, although interesting; failed to
persuade us that the purpose was as suggested.
Further, in the .Dartmouth case, at p. 425,. the majority of the "
board stated< 'I
. . . [The article before the board1 clearly deals with the
prornotion of -permanent employees. It seems clear .that a
per-son who is already a permanent employee may well be
entitled. to vacation, holiday, or other rights to be absent
from the work place which may coincide with the probat+onary
period. To not i.nterpret""month" as meani.ng "working month':
would then lead to the possibility that the entire purpose of
a probationary .period would be frustrated shou 1.d‘ that.
probationary period coincide with 'rig-hts of absenteeism
already vested in the employee who is promoted.
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.Becau& article'3.04 deals with a period of years and not. 0 n e .
involving months. or days, we are not faced .with exactly the same
considerations that were before the board in the mrtmouth case. i
"[Tlhe entire purpose'! of the period within whi.ch the employee
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could demonstrate the ability to work without incurring a'similar
warning .would not be frustrated by including in the two yea r period :
.certain periods- when the employee was not reyui.red to be at work.
Here; the purpose of the article would be realized if the two year
period worked counted periods that are part. of normal employment
such as' nprmal..daysoff, vacation, holjdays, as well as the days- _'
off permitted for plant avera-ge sick leave, bereaverl;ent leave and
some types of Union activity-time. Such allowances, would still I
provide ample.time for the purposes of the article to be realised.
On the special facts .of the case before us, the two year period
provided for in arti,cle. 3.04 is not,merely two calendar years, nor ,..
is it some specific.'total of hours or days. worked. ._
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.Because the ttio year period under article'3.04 is.not a two
l calendar year ceriod and must be viewed as .two working years, as
'the. ,month in Dartmouth was'interpreted as meaning, a "working
month," .does not mean'that two working years must be equated with
time "actua,lly worked" as wasfound on the facts of that case, and
, we 'do not have to exc'lude the same periods of time as were there.
excl.uded. Two working,years, given the.purpose of article 3.04,
would,,include an employee's regular days off, vacation, holidays,
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sick leave and bereavement leave taken in accordance with the
provisions of'the collective agreement. , : ._
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From the 'su'bmissi.ons of counse.1 for t. h e Employer, w e
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understood his.position to be the same as that of counsel for the
employer in.Dartmouth,: that- in caltiulating the "sunset" p.eriod, we
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should exclude "vacation, holiday,- or other rights to be absent.
from.the'work place which may coincide,'! .in this case, with the two
year period. - -. '.
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To accede to the intdr&tation urged on us by,.-counsel for the .
Dnion.would frustrate the purpose of article 3.04. To accede to.
that presented by counsel for the .Employer would.impose a burden on
an employee well, in excess of'that required tojrealize. the purpose
. _.'
of the provision. . . ,'
. -' '.
In.the absenc'e of clear language in the agreement;knd on the
/
basis.:of our anal,ysis of the language of articl,e 3.04 *in the light
', of its. purpose, -we have arrived at an; interpretation I which :
represents a middle;ground be'tween the positi'ons of ..the parties.." .
We also-believe our' interpretaion to be the most reasonable of t.he
possible interpretations,' that it will not create'.yroblems of
administrative feasibility, and will avoid anomalies.
Unfortunately, the‘ parties did no,t address the issue of which
additional'periods'should.be treated asbeing part of the t,wo yciar
period, should we find that it was 'not a period of two calender
years. Before delineating the remainder of the 'periods of time
.that woul,d be considered to be part of-the two year period, .we wish
to hear argument from counsel. However, we first wish to give the' /
parties an op@ortunity to consider our interim decision and to see'
if they can arrive at a negotiated list of time periods to. be
included in-the two year perjod. If they are unable to do so, on
notification from':either of them, we will request the Registrar to
set a date for the completion of the hearing. :
' Although, as has been noted above, the parties indicated that 1
they 'were unable to find any cases directly on point, the Board
wishes to refer to the case of Re Robertson Building Svstems.Ltd, .
: (19851,. 19 L.A.C.J2d) 427 (H.D. Brown). Inthat ca;:z,e the- board,
i .ht p.
431, referred .to s. 6(b) of the 'applicable collective
agreement, '"which encompasses the right of the company to establish
: rules and set the -standard as to the test of such rules on .the
basis of reasonableness ..: ." The, rule made by the employ~er.:that
fell to be considered by the board stated:
After a period of. six man-ths with no recorded offences, 'all.
previous offences of the type set f,orth 'above, shall be
cancelled and the.employee's record considered clear, . .
As in the case before- us, the employer' argued (at'p. 429),
that the article should be interpreted in accordance with its
purpose.and that this would be thwarted if a,six months lay-off
were included in the period:
. . . .The company excluded a period of vacation fcr'.that purpose
as .an employee's .vaca,tion is part of his .regular employment
-. provided in the agreement, but where-.an employee is absent on
: a lay-off,and not at work, its position is that such a period
'should be excluded in vi.ew of the purpose of such a' .lirnitation
clause. . .
Further,.at p. 429, the board stated: I
. . . It ’ is i the .cbmpany’.s .pcJsit’iOn that as t:he~ gkit?vor was /, not
at work because of the lay-o.ff, he ,was not'ina position to
cause any'of .the difficulties which .might be considered as an
offence under the plant rules and therefore the'purpose of the
limitation clause could-not be met by permitting that period
of lay-off %o benefit the employee in that manner..
At pp. 429-30,' the board. noted the union's subrniss~ion that ,-
. . . the plant rules ,were unilaterally- impcsqd by the company
.ar&'not directly negotiated by the.parties, the provision does
1 not specif'ically refer to a term of, the collective agreement,
other than the acknowledgment of: the company's right to
establish such 'rules in s. G(b). On that basis it was argued
that the words' used in this section of the plant rules should
be given their .ordinary meaning so that "six months". means
calendar 'months'. Any 'further refinement or, qualification such
as suggested by the company would require the implication. that I
the language 'of that section meant six months of work or
-active employment. It was argued that an employee should have.
the right to have such rules applied strictly to allow him to, . [sick a normal understanding of what is required of him.. It
was submitted that the company .could, in its rules, which it .;
'developed,.have indicated such thngs as “active employement"
for a certain time on t.he ,job for the purposes of the .,
limitation, but -in the absence of .such qualification, the
.board 'should not read any further rest'riction into that
clause. It was submitted that.the clause should be given'the
meaning 'apparent on the face. of the. language used by the
company.. It was' furthe.r submitted that the' rules- should he.
reasonab1.e and applied on'that basis to All employees.. Its'
submission is that as the company does not exclude a vacation
period for this purpose as it is part of regular employment,
emp1oye.e.s who have been "laid off are affected by the exercise
by the company of its right in the collective agreement and
remain as 'an employee [sic1 at least until 12. months have
expired from the date of lay-off, -both periods should be
considered to have the same effect.
5 - ‘i
I
r 16
et p; 431, the board stated:.-'
. . . it i,s the term of the collective .agreement a t: issue :
between the parties -which must be lapplied by the board-. ,+,~n
that regard we have.had reference 'to s. G of the plant rules.
While these rules are established i.n ticcordanke w.ith- s. G(b)
by the company, they are unilaterally established by it'for
-its own purposes and must, -therefore, in our"opinion; be held'-
to the .strict application of the language it used .'in
promulgating the rule, absent evidence of the practice of the
p,arties. .,
At pl 433, 'the board stated:
i
. . .
we find that the purpose of such clause. has been met,
having regardito the meaning.to [sicl.which we have ascribed
to it set out above . . . . \
_
The board in Robertson did,not accept that the purpose of the
clause before :it was as submiltted by the employer. .This 'was
because it h&d,,been "unilteral'ly established" by the employer "for '
its own puroposes." This is not the case in the matte-r before us.
Tne dissent of the. employer's nominee in. Robertson states. -(at p.
434): .
An interp.retation. which renders the' rule of no practical
purposive application in some circumstances is, not a proper
interpretatio,n,:,
While the above quotation might not‘be appropriate on the '.
facts of the Robertson case', where the .majqrity of the board _ I \
appears to have based its deqision on the application of the
doctrine'of contra..preferentum, it is apt to the facts of the.case
before us where article 3.04 was negotiated between the parties and
forms part of the collective agreement.
) ,
The dissent.in Robertson further states; ibid.: I
. . . the 'interpretation the employer suggested, does not require
'an amendment: it merely requires an interpretation that makes
reasonable sense 'in l'ight of all the circumstances.
We were not called upon to interpret a rule that was unilaterally
promulgated .by the Employer-c In the circumstances, we regard what
we have done to',be an exercise in interpretation and not one where
we have added to or altered the provisions of .the collective
agreement; .- I
Dated .at Toronto this 18thddi of May. , 1994.
.- M. Gorsky -'Vice Chairperson
i. P. Klym' - Member
i
I
M. O'Toole - Member