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HomeMy WebLinkAboutFryer03-08-21 U"do- - '-9 'D ,- '-J, '- ~ c> '-l 0 IN THE MATTER OF AN ARBITRATION BETWEEN: NORTHBA YDISTRICT ASSOCIATION FOR COMMUNITY LIVING (the "Employer") AND: ONTARIO PUBLIC SERVICE EMPLOYEES UNION (the "Union") AND IN THE MATTER OF: GRIEVANCES OF C. FRYER (02-667-040) AND C. CHARETTE (02-667-042) SOLE ARBITRATOR: Kevin M. Burkett APPEARANCES FOR EMPLOYER: Jack Braithwaite Guy Chartrand Sherry Carnevale - Counsel - Director of Finance - Manager, Human Resources APPEARANCES FOR UNION: Will Presley Kathy Witiuk Carol Fryer Carol Charette - District Grievance Officer - President Local 667 - Grievor - Grievor Hearing in this matter was held in North Bay, Ontario on July 22, 2003. AWARD The Union grieves in this matter that Ms. C. Fryer and Ms. C. Charette, the two grievors, have not been provided with the vacation for 2002 to which they are entitled under article 24.03 of the collective agreement. Both grievors have recently transferred from part-time to full-time status. The issue is whether their part-time service should have been counted for purposes of detennining their vacation entitlement as full-time employees. The Union takes the position that under articles 10.04 and 10.05 such part- time service is to be counted. The Employer, on the other hand, submits that prior part- time service does not count for purposes of detennining full-time vacation entitlement, such that a part-time employee who transfers to full-time status is treated as a new full- time employee for purposes of vacation entitlement. Accordingly, it is the position of the Employer that the vacation entitlement of these grievors was properly detennined under article 22.04. There is no dispute with respect to my authority to hear and detennine these matters. J The parties submitted an agreed-upon statement of facts, as follows. 1. The above-noted parties are governed by a collective agreement covering all employees of North Bay District Association for Community Living. For the purposes of this hearing, the parties agree that the collective agreement effective ITom April 1, 2001 and in full force and effect up to and including March 3l,. 2003 is the relevant agreement. The parties also agree that the collective agreements expiring March 31, 1994 and March 31, 1995 are relevant in tenns of past practice. 2. In particular, the seniority clause for part-time employees, in the above-mentioned collective agreement (2003), at articles 10.04 and 10.05 reads as follows: 10.04 An employee whose status is changed ITom regular part-time or casual part-time to regular full-time shall receive credit for hislher service. 10.05 A casual part-time and regular part-time employee who receives a regular full-time position shall receive credit for hislher full service upon completion of the required probationary period. 3. In addition, the vacation clause for part-time employees, in the above-mentioned collective agreement, at article 23.02, states: Employees will be paid vacation pay in accordance with the Employment Standards Act. Employees may elect to receive their vacation pay either on each pay period, biannually or annually. 4. In the above-noted collective agreement, vacation for full-time employees is calculated as follows: 2 24.02 24.03 On April 1 of any year, each employee who has been in the employ of the Employer less than one year of credited service shall be entitled to a vacation of one day with pay for each full month of service up to a maximum of 10 working days. Employees who have completed one or more years of service as of April 1 in any year shall be granted annual vacations on the following basis: a) one to three years of credited service - 15 working days with pay; four to !O years of credited service - 20 working days with pay; b) c) after 10 years of credited service - 25 working days with pay. In the collective agreements expiring March 31, 1994 and March l, 1995, 5. vacation for full-time employees is calculated as follows: 23.02 23.04 a) b) c) On April! of any year, each employee who has been in the employ of the Employer less than one year of credited service shall be entitled to a vacation of one day with pay for each full month of service up to a maximum of 10 working days. Employees who have completed one or more years of service as of April 1 in any year shall be granted annual vacations on the following basis: one to three years of credited service - 15 working days with pay; four to 10 years of credited service - 20 working days with pay; after 10 years of credited service - 25 working days with pay. 3 6. Article 10.03 of the full-time provisions of the collective, agreement expiring March 31, 1995 states: An employee whose status is changed from regular full-time to regular part-time or pennanent part-time shall receive credit for his/her seniority and service. The seniority clause for part-time employees, in the above-mentioned collective 7. agreement (1995) at articles 10.04 and 10.05, reads as follows: 10.04 An employee whose status is changed from regular part-time or casual part-time to regular full-time shall receive credit for his/her service. 10.05 A casual part-time and regular part-time employee who receives a regular full-time position shall receive credit for his/her full service upon completion of the required probationary period. On or about June 26, 2002, the Union filed a grievance on behalf of Carol 8. Charette and Carol Fryer, alleging that the Employer violated article 24.03 of the collective agreement. Specifically, the Union alleges that the Employer did not credit employees with their service as part-time employees when calculating vacations once the employee became full-time. 9. Carol Fryer was hired on a part-time basis on or about May 1, 1991. She was hired full-time with the Employer on or about January 7,2002. Between May 1, 1991 and January 7, 2002, she worked 13,351.5 hours. Her adjusted seniority date was November 23, 1995. 10. On or about September 8, 1998, Carol Charette was hired on a part-time basis. She was hired full-time on August 27, 2001. Between September 8, 1998 and 4 August 17,2001, she worked approximately 4,550 hours. Her adjusted seniority date was June 20, 1999. It was further agreed in the course of opening statements that some 35 part-time employees transferred to full-time status in the period 2000 - 2002; that these employees, along with the many others who transferred to full-time status under the transfer language (10.04) negotiated in 1996, were not credited with their part-time service for the purpose of their vacation entitlement as full-time employees; that the Union representative who services this bargaining unit became aware in 2001, in the course of bargaining for a renewal collective agreement, that the Employer practice had been to ignore part-time service in calculating the vacation entitlement of employees who had transferred from part-time to full-time status; and that a decision was made to allow the language to remain unchanged but to grieve under the successor collective agreement. Finally, the Employer explained that articles 10.04 and 10.05 were proposed by it in the 1996 round of negotiations and that, notwithstanding the reference to maintenance of "service," the intention, consistent with the practice, was to limit the application of the clause to credit for seniority for purposes of promotion, layoff and recall and vacation preference. Turning to the merits. There is a recognized distinction in labour relations between "service" and "seniority." Seniority establishes one's position relative to others in the bargaining unit, based on length of employment within the bargaining unit, for purposes of regulating the competition between bargaining unit employees for job bidding, protection from layoff, entitlement to recall and preference in time of vacation. Service, on the other hand, establishes one's entitlement to certain benefits (e.g. 5 vacations), also based on length of employment within the bargaining unit, where there is no competition between employees. While on occasion the term service may encompass both the competitive and the entitlement aspects, clear and express language would be required to limit the application of the term service to just the competitive aspects, as is argued by the Employer. There is no such language here. Accordingly, notwithstanding the intention of the Employer in 1996, a clause that provides part-time employees with credit for "full service" upon transfer to full-time status must be interpreted as encompassing both seniority and service as those terms are usually used in a labour relations context. It is not open to the Employer to now assert a limiting i~tention when the language that has been agreed upon connotes a broader meaning. The Union is entitled to rely upon the language that has been agreed upon as establishing the rights and entitlements that exist under the collective agreement. The right here is to have one's part-time service counted for purposes of determining one's entitlement to vacation following a transfer to full-time status. As with any right or entitlement under a collective agreement, however, a party may be estopped from asserting or relying on that right or entitlement where the preconditions that underlie the equity doctrine of promissory estoppel exist. These preconditions are: fIrstly, that there exists a representation, by word or by deed, that the party making the representation will not rely on its strict legal rights under the contract; secondly, that the other party has relied upon this representation; and thirdly, that it has done so to its detriment. Where these conditions exist, it would not be fair to allow the party that has made the representation to then assert its strict legal right to the detriment of the other party. 6 In this case the Union, if it did not already know, understood during the course of bargaining in 2001 that the consistent practice under articles 10.04 and 10.05 from the time that these articles were incorporated into the collective agreement in 1996 was to treat part-time employees who transferred to full-time as new full-time employees for purposes of vacation entitlement. In the face of this knowledge, the Union chose to renew articles 10.04 and 10.05, without discussion and/or amendment, with the expectation that it would grieve during the currency of the collective agreement that was being negotiated. In these circumstances, it must be found that the decision of the Union to renew articles 10.04 and 10.05, although fully aware that the practice under these articles was not to count service as a part-time employee for purposes of detennining vacation entitlement as a full-time employee, constituted a representation to the Employer that it was content to have these clauses administered in the future as they had been administered in the past. I accept that the Employer relied on this representation in agreeing to renew these clauses without amendment and that its lost opportunity to negotiate the matter, had it been raised by the Union, constitutes detriment. The remedy presently sought by the Union underscores the Employer's detrimental reliance. Accordingly, it must be found that the elements necessary to ground an estoppel exist in this case. The effect of this estoppel is to prevent the Union from relying upon its strict contractual rights under articles 10.04 and 10.05 as applied to article 24, during the tenn of operation of this collective agreement. The parties are presently in the course of bargaining for a renewal collective agreement. Having regard to all of the foregoing, the 7 issue raised herein may now be resolved in bargaining. This grievance is hereby dismissed. Dated this 2151 day of August 2003 in the City of T 8