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HomeMy WebLinkAboutBinda 94-04-13~'~/-'~?'?' :~":~', ": ONTARIO ' EM~LOY'~S DE LA COURONNF " ~"'-" '""~?':"~':"'"~::':"' "i · GRIEVANCE c,OMMISSION DE ~/SETTLEMENT REGLEMENT - - . BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100,~ TO~ONTO~ ONTARIO. M5G IZ8 TELEPHONE/T~:LEPHONE: (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100. ~'ORONTO (ONTARIO). M5G 1Z8 FACSIMILE/T~-LI~'COPIE : (4~6) 326-1396 675/93 IN-THE MATTER OF AN ARBITRATION Under THE CROWN 'EMPLOYEES COLLECTIVE BARGAINING Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN '-- oPSEU (Binda) - Grievor - and - The Crown in Right of Ontario (Ministry of Health) Rockland/Orleans Ambulance. Employer BEFORE: R.'- VeritY Vice-Chairperson E. Seymour Member M. O'Toole Member FOR THE M. Bevan GRIEVOR Grievance Officer . OntariO Public Service Employees Union FOR THE J. Perry EMPLOYER Counsel Shibley, Righton Barristers & Solicitors HEARING December 14, 1993 February 8, 1994 DECISION On April 20, 1993, Bruce Binda was dismissed from his employment as a part-time ambulance officer with'Rockland/Orleans Ambulance Service. Mr. Binda was advised of his dismissal in the form of a memorandum from owner-operator Bernard Thivierge. The memorandum contained no reason for the employer's action. A grieyance, dated May 10, alleged dismissal "without just cause and. in bad faith". The settlement desired was "reinstatement with full remedial redress". At the outset of the hearing, the emPloyer contended that the~-Board lacked jurisdiction due to the grievoffs Probationary status at the time of dismissal with no right to grieve under the collective agreement then in effect. The union argued that the griex;or was not a probationary employee and that in the absence of just cause, he must' be reinstated with full remedial redress. The issue for determination is said' to be whether or not the grievor was a probationary ~mployee at the time ofhis dismissal The facts are nOt in dispute. The grievor was hired as a part-time ambulance officer on May 11, 1991 under the terms of a collective agreement deemed to .be in .effect from September 1, 1990 to December 31, 1991. The collective agreement, which applied to both full-time and part-time employees, provided for a probationary period of 312 hours fOr a part-time employee with no right to grieve discharge during the probationary period. Subsequently, on June 24, 1992, the parties agreed upon all terms of a new collective agreement which was then aWarded in.an interest arbitration of Paula Knopfl dated July 1, 1992. This new collective agreement was for'the period January I, 1992.to December 31, 1993. A term of that agreement provided that the probationary period for part-time employees was 1,000 hours with no right to grieve discharge. At the time of dismissal on April'20, .1993, the grievor had accumulated 778.25 hours of part-time service. The relevgnt provisions of the collective agreement, signed AugUst 29, 1991, and deemed in force at the time of the grievor's hire-read as follows: 11.03. Probationary Employees: ~_ b) Part-timeemployees shall be on probation for a period of 312 ho,uts and shall not have any rights tO a grievance ff discharged during probation. However, after their probationary period is eomp. leted, their seniority shall be retroactive to the first day of their employment. ARTICLE 28 - TERM OE AGREEMENT 28.01 -Effective Date: This Agreement shall be in effect from September 1, 1990 to December' 3L 1992 and shall 'continue from year to year thereafter unless either party gives to the other party notice in writing -' in accordance with Article 28.02 28.03 A~creement to Continue in Force: 'Where such notice requests revisions only, the .following conditions shall apply: a) both parties shah adhere fully to the terms of this Agreement during the period of bona fide'collective'bargsining and if negotiations extend beyond the anniversary date of this Agreement any revision in terms, mutually agreed upon, shall, unless othenvise specified, apply retroactively to that date; b) the Agreement shall end only after conciliation-services have been completed 'and the requirements of the LaboUr Relations Act of Ontario for a legal strike or lockout have been met. The new collective agreement contained the following relevant provisions: 11;03 Probationary Employees: · .,<(a) ... (b) Part-time employees shall be on probation for a period of one thousand (1000) hours and shall not have- any rights to a grievance if discharged during probation. However, after their , probationary period is completed, their seniority shall be retroactive, to the first day of their employment. (c)' ... 32.01 Effective Date: This Agreement shall be ia effect from January 1, 1992 to December 31, 1993 and shall continue from yea~ to year thereafter unless either party gives to the other.party, notice ia writing m aCCordance with Article 31.02. 32.03 Agreement to Continue in Force: - _ Where such 'n6tice requests revisions only, the following conditions Shall apply: (a) both parties shall adhere fully to the-terms of this Agreement during the period of bona fide collective bargaining and if negotiations extend beyond the anniversary date of this Agreement any revision ia terms, mutually agreed upon, shall, unless Otherwise specified, · .- .~ apply retroactively to that date; Co) ~ the Agreement shall end only after conciliation services, have been completed and the requirements of the Crown Employees Collective Bargaining Act have been met. The union contends that the griever's probationary period is 312 hours pursuant to the terms of the collective agreement under which he was hired. In 'Support, the union cited the following 'aUthorities: Re Government of Northwest Territories and Union of Northern Workers {1989), 5-L.A.C.' (4th).353 (Chertkow); Re Central Canada Potash Co. Ltd. and United Steelworkers, Local 7656 (1975), 10 L.A.C. (2d) 29 (Norman); and Re Bell Canada and Communications Workers 'of Canada (1984), 15 L.A.C. (3d) 27 (M. G.. Picher). The employer maintains that the current collective 'agreement applies in the circumstances of this case. The following authorities were referred to: Re Siberry Investments Ltd. (Loeb Yorkgate) and International Woodworkers Association - Canada, Local 1-700 (1992), 28 L.A.C. (4th) 129 (Briggs); and Re Durham Memorial Hospital and London &.District Service workers' Union, Local 220 .(!991), 19 L.A.C. '(4th) 320 (~ufrnan). . rl~ parties agreed that the new collective agreement as a whole is~made retroactive to January 1, 1992, including the provision 'to increase the number of probationary hours for part-time emplOyees from 312 hours to 1000 hours. The. Board allowed the employer to call .evidence of negotiating history and past. practice to establish' a latent ambiguitY alleged to be contained in the' Words "anniversary date" in Article 28.03(a). In our view, the ambiguity argument does not advance the employer's, case in light of the union's agreement that the provisions of the' new collective agreement are retroactive to January 1, 1992. We are satisfied that the words "anniversary date"-contained in-Article 28.03(a) are clear enough not to be.ambiguous and can' only be interpreted to mean expiry date.' Accordingly, in the absence of an ambiguity, we cannot rely upon extrinsic'evidence by way of negotiating history and past practice as an aid to interpretation. We are satisfied that the parties are aware that, under Article 28.03(a), they are required to adhere to the provisions of an expired collective agreement until a new agreement has been. reached; and that unless otherwise specified, any revision in terms will apply retroactively, to the date of commencement of the new collective agreement. -Initially, arbitrators held. that if the intention .was that non-monetary items be retroactive, that intent has to be specified'in clear language. See for example, Penwick Canada Limited (1966), 17 L.A.C. 296 (weatherill). However, the current approach'is to presume that all clauses-are re~oactive to the effective date of the Collective agreement unless it would lead to "impractical or' unintended -results'!. In Penticton and District Retirement Service and Hospital Employees' Union, Loc. 180 (1977), 16 L.A.C. (2d) 97-(P.C. Weiler) the arbitrator stated at p. 102: : ;..the current.approach of Canadian arbitrators.is to start from the presumption that the agreement as a whole is made retroactive, as the parties have stated-in their duration clause. But specific exceptions may be read into this standard retroactive principle, excluding certain terms of the agreement from the 'clause, if full retroactivity would appear to lead to quite .impractical andunintended results. As indicated previously, in the instant grievance, the parties have agreed that the new collective ,agreement was wholly retroactive in all relevant parts to January 1, 1992. However, in our view, that does not end the matter.' In Central Canada Potash Co. Ltd., supra, where the expired collective, agreement provided for a 65 ~hift probation period and the new agreement reduced the period to 50 shifts, the arbitrator concluded that the new 7 agreement' did not apply retroactively to employees who had commenced employment before the commencement date of the neW agreement. In the words of arbitrator Norman at p. 33:~ . ,..it is my opinion that the new collective agreemdnt was wholly retroactive,.as between thc'parties. This finding, does not, hoWever, lead me to conclude that the grievor, as of February ist, ipso jure, was subject to a 50-shift probation period. To leap to such a conclusion would surely do damage to the intentions o'f the parties. On the one hand, one might assert that to shelve the grievor's 66-shift probation period as of February 1st, might Well leave his employer in a position where, it would not have time 'to finally evaluate his capacity to fill the bill for the company. That is, the whole ratiOnale of probation as a time of assessment_of the probationer's wo~h and suitability, is thrown out the window as far a~ the person in the grievor~s shoes'is concerned. On the other hand, one might co'nclude that the legal effect of the 50-shift period, retroactively applied, might be to erase'the time already worked by a probafionery for the purposes of calculating the 50 shifts. The result of this analysis would be'that a probationer who had worked 65 shifts as of February 1st, would have to begin again, with a clean slate, and work a further 50 shifts as a prob~itioner. The absurdity to which lam lead in each of the above cases~ersuades me that the 50-shift clause can only be read as applying retroactively to probatiouers~who comfi~eneed work with the company on or after· Februa~ 1st. It can have no application to the regime of probation set as · between the company' and the grievor as of the date of his employment on November 29, 1974, In Government _of Northwest Territories and Union of Northern Workers, supra, the expired collective agreement contained a one year probationary period, whereas the new agreement reduced the probationary period to six months2' In that case, it was the union that asserted that the_ grievor fell under the terms of the new agreement. ArbitratOr Chertkow adopted the approach taken by arbitrator Norman in Re Potash and offered the following rationale at pp. 357-58: ' If the position Of the union is accepted it would result in an absurd situation whereby the employer would have effectively lost the opportunity to assess Mr. Cooke during his probationary period., Such a reading would not be within the reasonable expectations of the parties on the concept of probation. It is an agreed period of time wherein the employer has the opporiunity to assess a new employee's suitability for permanent employment: As was succinctly put by arbitrator Schiff in Re Canadian. Canners Ltd, supra, at p. 61': ... when a new collective agreement supersedes a predecessor agreement, in the absence of compelling language in the new agreement arbitrators will not read the new provisions 'as applicable to events occurring before the date of the new agreement's execution if the effect of the retroactive reading would be absurd or would unfairly disappoint the reasonable expectations of whose who had been subject to the provisions of the pr6decessor. Arbitrator N~}rman in Central Canada Potash Co. Ltd., supra, also declined to give retroactive force to a. change in a collective agreement which reduced the probationary'period from 66'to 50 shifts worked. He Observed at p, 33: ... the whole rationale of probation as a time of assessment of the probationer's worth and suitability, is thrown out the window as far as a person in the grievor's shoes is concerned. Finally, as was noted in'Bell Canada, supra, at p. 37: In the interests of both employers and unions findings in'favour of retroaetivity should be made only with great care. Obv. iouslY in this grievance the argument against retroactivity favours thc interests of the grievor.and the union. The shoe could as easily be on the other foot. There may be circumstances in which the prior expectation of a company which has gone forward on the terms of a prior collective agreement must also be respected. On the factS of the instant grievance, we are satisfied that the prior expectations of the. parties must be respected. There can be nodoubt that the 1000 hour probationary period for pan-time employees applies re~oactively to those employees wh° commenced work on or a~ter January 1, 1992.' In our view, it can have no application to employees such as the grieVor wh° commenced work under,the probationary regime of a previous collective agreement. In the result, it cannot be said that the-grievor was a part-time probationary employee at the time of his dismiSsal on April 20, 1993. The parties have agreed.that in the event that the board finds that the grievor was not such an employee, the appropriate remedy would be reinstatement. Accordingly, we order that Bruce Binda be reinstated to the'position of part-time ambulance officer at Rockland/Orleans Ambulance Service. We remit to the parties the issue of 'the appropriate compensation Payable and retain jurisdiction in the event of any difficulty encountered in that regard. DATED at Brantford, Ontario, this i'~ day of Aprtl 1994. _R. L. VERITY, Q.C. - VICE-CHAIRPERSON .... ; ............................... :...~.i: ............................................... E. SEYMOUR- MEMBER ~:~ M. O'TOOLE - MEMBER.