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HomeMy WebLinkAboutCasterline 99-09-22 . - , IN THE MATTER OF AN ARBITRATION BETWEEN: THE CHILDREN'S AID SOCIETY OF THE DISTRICTS OF SUDBURY AND MANITOULIN AND: ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 668 AND IN THE MATTER OF THE GRIEVANCE OF RICKI CASTERLINE SOLE ARBITRATOR: IF.W. Weatherill ( A hearing in this matter was held at Sudbury on September 14, 1999. J. Gilbert, for the union. G. Bergeron and B. Gatien, for the employer. AWARD The grievance in this matter, dated July 6, 1999, is stated to be as follows: 'That the employer has imposed discipline on the grievor contrary to article 4.01{b) of the full-time social worker collective agreement, and any other article or act that may be applicable. " , , -2- \ The relief requested is: "That the grievor be re-instated, and compensated for lost wages, benefits and credits, and that any reference of discipline be removed from the file. " At the hearing of this matter, the parties agreed that there was a preliminary issue as to the arbitrability of the grievance, given the circumstances relating to the grievor's employment. The parties agreed that I was seised of that question and that, having decided it, I should remain seised of the matter for the purpose of dealing with any difficulties relating to the application of that decision. I am not, however, seised at this time with the question of just cause, in the event it is determined that that question is arbitrable in this case. F or the purpose of determining the preliminary question, it is necessary to outline ( certain aspects of the relevant collective agreements, as well as the employment history of the grievor with the employer. The parties are agreed on the material facts relating to these matters. At the time the grievor was first employed by the employer, in October, 1997, the collective agreement in effect between the parties was one dated January 28, 1992, and whose expiry date was December 31 of that year. Article 30 of that collective agreement is as follows: "This Agreement shall continue in effect until December 31, 1992, and shall remain in force from year to year thereafter unless either party gives the other party written notice of termination or desire to amend the Agreement. " It would appear that this collective agreement re~ained in force, presumably by virtue of article 30, until December 4, 1997, when a memorandum of agreement was signed by the parties, amending certain terms of "the three collective agreements". (The , ( -3- collective agreement of January 28, 1992 provided for the recognition of an "all- employee" bargaining unit, and while the scope clause was not amended by the December 4, 1997 agreement, the latter agreement does have certain separate provisions for each of three groups of employees, one of which is covered by provisions relating to a "Pull-time Social Worker Collective Agreement"). It is agreed that the collective agreement now in effect is comprised of the two documents: the agreement of January 28, 1992, and the amending agreement of December 4, 1997. The grievor was fIrst hired by this employer on October 20, 1997 in a "temporary contract" position as a Generic Social Worker. Based on her education and experience, she was classified as a Social Worker III, Level VI, which would appear to be the highest- rated classification under the collective agreement. Her contract was for the period October 20 to December 12, 1997. On December 4, 1997, the grievor was offered - and accepted on December 5 - an extension of her contract, to work as an Intake Social ¡ Worker, ftom December 15, 1997, to March 13, 1998. On January 14, 1998, the grievor \ was offered - and accepted on January 16 - a further extension of her contract, as an Intake Social Worker, ftom March 16, 1998, to June 19, 1998. On May 4, 1998, the grievor was offered - and accepted on May 19 - a further extension of her contract, as an Intake Social Worker, ftom June 22, 1998, to September 18, 1998. It will be convenient to consider the nature of the grievor's employment status as of late July, 1998. By that time, she was in her tenth month of employment with the employer. She was on her fourth consecutive contract of temporary employment, in the employer's view. While these might appear to have been successive contracts with a break between each, such breaks were, as the union has stated without contradiction, simply weekends, when the grievor would not have been at work in any event. In substance and effect, the grievor had been working continuously for some ten months. The collective agreement contemplates the hiring of temporary employees, and provides as follows, in article 2.02: , , -4- ¡ "Temvorarv Emvlovees (a) Temporary employees shall be employees hired in the following circumstances: .(i) employees hired for a specific term or project not to exceed six months. This term may be extended a further six months on the mutual agreement of the employee, the Society and the Union; (ii) employees hired to replace an employee in the bargaining unit who is on approved leave of absence, absence due to WCB disability, sick leave, or long term disability; (iii) employees hired to peiform a special non-recurring task not to exceed six months, or to handle atypical peak case load not to exceed six months. This term may be extended a í further six months on the mutual agreement of the employee, \ the Society and the Union. The release or discharge of such persons during the temporary hiring shall not be the subject of a grievance or arbitration, and the expiry of a project shall not be deemed to be a layoff. (b) Except where specifically modified within this Agreement, a temporary employee shall have all the rights of a regular employee. (c) The Society will outline to employees selected to fill such temporary vacancies, and to the Union, the circumstances giving n'se to the vacancy, and the special conditions relating to such employment. " -5- ì These provisions were not amended by the Memorandum of December 4, 1997. Although there does not appear to have been anything amiss with the grievor's being hired as a temporary employee, it is acknowledged that the Society did not seek the Union's agreement to its extension. Indeed, it is agreed that the Society never sought the agreement of the Union in such matters, although there is nothing before me as to the extent to which temporary contracts of employment were entered into, or were renewed. I am in agreement with the position taken on behalf of the Union, to the effect that article 2.02 (a) of the collective agreement sets out an exhaustive (as opposed to "inclusive": see the decision of the Grievance Settlement Board in Beresford v. Ministry of Government Services, GSB 1429/86, at p. 15), list of the circumstances in which employees (who otherwise have all the rights of regular employees, as article 2.02 (b) makes clear), may be considered to be "temporary". The requirements of the collective agreement - and these must be regarded as requirements of substance, not mere fonnalities - were not met with respect to any of the purported extensions of the grievor's contract of temporary I \ employment. It is my conclusion that when the grievor continued to be employed following the conclusion of her initial contract, on December 12, 1977, she must then be consid~red to have been working as a regular employee. As a regular employee, the grievor would be subject to the probation provisions of the collective agreement. At the time she was hired, the material provisions of the collective agreement in that respect were as follows: "12.02 Probation (a) An employee will be considered to be on probation for a period of six months. The employee shall have an interim peiformance assessment by her immediate supervisor during the probationary period, no later than four months after its commencement, to provide the employee with an opportunity to adjust perceived shortcomings prior to thè conclusion of the probationary period. The employee will be notified in -6- writing at least fourteen days prior to the expiration of the probationary period ifher employment is to be terminated or extended. " - - - In the Memorandum of December 4, 1977, article 12.02 was somewhat modified. In particular, the word "permanent" was inserted prior to the word "employee" in the first sentence of the article. Further, article 12.02 Cd) was added to the agreement. That article is as follows: "Where a Contract or Temporary employee becomes a permanent employee through thejob posting procedure, with no break in service, such employee: (i) For purposes of the probationary period and in the circumstance of being selected for the same job, will be \ credited with one-half of the time served as a temporary employee immediately prior to the permanent hiring, up to a maximum of three months, and; (ii) upon successful completion of the probationary period, will be credited with seniority back to the employee's date of last hire. " During the first eight weeks of her employment, it is clear that although the grievor was a member of the bargaining unit, the provisions of the collective agreement then in effect relating to the probationary period did not apply to her, as the grievor was, without doubt, a temporary employee. When the contract as a temporary employee was purportedly renewed - without compliance with the provisions of the collective agreement - article 12.02 Cd) of the collective agreement had come into effect. That article deals with the situation where a contract or temporary employee becomes a permanent employee "through the job posting procedure". In the instant case, the grievor had not become a permanent employee in that way. She had, in my view, become a permanent employee -7- I by reason of the fact of her continuing employment relationship (with no break in service, as I find). The employer was not entitled to renew the "temporary"employment of the grievor without compliance with the provisions of article 2.02, and it is acknowledged that it did not comply with those provisions. The continuance of the grievor' s employment - now as a regular employee - would not, I consider, allow the grievor to avoid the probationary period contemplated by the collective agreement, nor is it suggested that it should. This is so even although the grievor did not become a pennanent or regular employee "through the job posting procedure". The probationary provisions are of general application, and article 12.02 (d) provides specificillly for the case of temporary employees who become pennanent. It is, I think, appropriate to apply this provision to the instant case, although I note that if! am wrong in doing so, the case for the grievor's having attained seniority before the event to be described becomes all the stronger, since she would be entitled to full credit rather than i partial credit for her time actually'worked. \ Assuming, then, that the provisions of article 12.02 (d) apply, when the grievor became a regular employee with the continuance of her employment on December 15, 1997, she would be entitled (having worked for eight weeks for the employer), to a credit of four weeks. Accordingly, she would still have to serve a probationary period of approximately five months. This period would have concluded in late May, 1998 (on May 20, it would appear). Since article 12.03 of the collective agreement contemplates the revision of seniority lists in Match of each year, it is of no significance that the grievor's name does not appear on a seniority list, as probationary employees have no seniority rights (article 12.02 (b)), and in March of 1999, as will be seen, the grievor was working outside the bargaining unit; in any event, inadvertent omission from the list is not one of the grounds for loss of seniority listed in article 12.04. For all of the above reasons, it is my conclusion that the grievor was a regular employee, with seniority rights, at the time of the following event: on July 13, 1998, the , , -8- employer offered to the grievor - who accepted on July 29 - an appointment as a Supervisor (a non-bargaining unit position) for the period from August 24, 1998 until August 31, 1999. The griever took up this position in accordance with that agreement. In May, 1999, an incident occulTed which led the employer to relieve the grievor of her duties. On July 5, 1999, the grievor was advised that her contract would not be extended beyond August 31, 1999, although her salary would continue to be paid until that time. On July 8, a notice was posted to the effect that the grievor was no longer an employee of the Society. As noted above, this grievance was filed on July 6, 1999. The question now to be determined is whether or not an arbitrator has jurisdiction with respect to this grievance. It may be said at once that, under the collective agreement, an arbitrator would not have jurisdiction in respect of the employer's removing the grievor from her supervisory position. Such a matter might be detennined by the courts, or by an r arbitrator acting under the Arbitration Act. That is not to say, however, that the grievor \ could not assert rights under the collective agreement. There was a collective agreement in effect at the material times, and, as I have found above, the grievor had acquired certain rights under that agreement and its predecessor. This collective agreement does not contain, as some do, provisions relating to the acquisition or exercise of seniority rights by bargaining unit employees who are appointed to positions, in management or otherwise, outside of the bargaining unit. The collective agreement does, in article 12.04, set out the circumstances in which "seniority shall tenninate and an employee shall cease to be employed by the Society". None of those circumstances applies to the grievor's situation. In this respect, this case is analogous to the Northern Electric case, 25 LA.C. 235, where an employee, who had worked in the bargaining unit for several years, was transfeITed to an assignment out of the country and out of the bargaining unit. At the end of that assignment, the grievor was discharged. It was found that, under the collective agreement, the grievor had a right to return to "an , , . -9- available vacancy" (the present collective agreement does not have such a provision), and at p.23 8 of the award it is said that, "Whether or not the grievor was entitled to be retained in any job outside the bargaining unit is clearly not a matter in which I would have jurisdiction, as my jurisdiction arises pursuant to the collective agreement. I must, however, exercise jurisdiction with respect to claims. based on the collective agreement and the instant case is such. The same would be so in the case of an employee on lay-off, for example. Such a person would not, at the time the claim arose, be working in the bargaining unit, but he would nevertheless have a claim under the collective agreement and such a claim would certainly be arbitrable in accordance with the procedures established thereby. " This was~ in fact, essentially the position favoured by the employer, and contested [ by the union, in the Tonka Corporation case, 15 LA.c. (2d) 165. There, an employee who had been appointed out of the bargaining unit to a salaried position was returned, by the employer, to a position in the bargaining unit, even although there were Gunior) employees on layoff from the bargaining unit at the time. Having detenninedthat the employee had not lost his accumulated seniority under the provisions of the collective agreement, the arbitrator stated, at pp .166- 7: "The question remains whether or not Mr. Carpenter could properly assert this seniority to retain a bargaining-unit job at a time when the junior employees were laid off. The assertion of seniority rights in such circumstances has been supported in most arbitration cases. That is, arbitrators have affirmed an employee's right to exercise his accumulated seniority credits as a means of entering the bargaining unit, even though it may result in the displacement of a bargaining-unit employee: . Canadian Labour Arbitration, p.228. " . '" . -lO- In the instant case since, as I have found, the grievor has acquired seniority rights under the collective agreement, and these rights have not been lost by virtue of any provisions of the collective agreement, I conclude that the present grievance, to the extent that it asserts such rights, is arbitrable. Although, as I have noted, the grievance raises certain questions which would not be arbitrable under the collective agreement, it does raise certain questions which are arbitrable under the agreement, and it is so declared. DATED AT OTTAWA, this 22d day of September, 1999. ! ~l1l1 Jt1 ~ÌI;{ IF. W. Weatherill Arbitrator.