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HomeMy WebLinkAbout1989-0533.McRae.90-09-20· ,~..~.. ONTARIO EMPL OYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARtO ~ GRIEVANCE C.OMMISSION DE SETTLEMENT REGLEMENT ' BOARD DES GRIEFS 180 ~UNDA$ STREET H~'EST, SUITE 2'~,3~, TORONTO, ONTARIO· M5G tZ8 TELEP.HO~E/T~LE~'~ONE.. {,d~6) 32S-~388 180, RuE DU~IOA$ OUEST, BUREAU 2~00, TORONTO (ONTARIO). MSG 1Z8 FACSIMILE/T~L~-COP*,E : (4 ~6; 326-7396 0533/89 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE B~RGAINING ACT Before THE GRIEVANCE SETTLEMENT BO]%RD ' BETWEEN CUPE (McRae) Orievor - and - The Crown in Right of Ontario (Ministry of Housing) Employer - &lid- T. H. Wilson Vice-Chairperson M. Lyons Member A. Meritt Member FOR THE R. McRae GRIEVOR FOR THE A. Tarasuk EMPLOYER Counsel Smith, Lyons, Torrance, Stevenson & Mayer Barristers & Solicitors HEARING November 6, 1989 898793 GSB 533/S9 DECISION The grievor grieves that the employer has violated "inTer alia" Article 17.03 o~ the Collective Agreement. He requests also that he be allowed this vacation leave at certain dates specified in his grievance form. No evidence or argument was made at the hearing with respect to those requested dates. The grievor appeared at the hearing without official Union representation but was assisted on a personal basis by an experienced Union steward. The background to this case is that the grievor had earlier been dismissed by the employer and that dismissal was the subject matter oE a Grievance. The grievance became a Grievance Settlement Board case. A settlement was reached between the parties and that settlement was deemed to be an Order oX this Board. I set out the terms of that Agreement: MEMORANDUM OF SET~.~ CUPE Local 3096 and Hamilton-Wentworth Mousing Authority Re: GSB 759/88 Grievance of Mr. R0nald McRae Without precedent a~d without prejudice the parties hereto agree to the following terms as Eull and Einal settlement of the captioned grievance. 1. The Employer agrees to appoint Mr. McRae to the next available vacancy iora groundsm~nlabourer, but not later than January 3, 1989. The Union agrees that the position to which Mr. McRae will be appointed shall not be deemed ~o be a vacancy ~or the purposes of Article 8 and the employer shall be saved harmless in respect to any grievances concerning Mr. McRae's appointment to a groundsman labourer position. 2. The period from Nay 4,.198B to June 3, 1988, shall be deemed to be a period of suspension without pay, and the period from June 4, 1988, to the date of his reinstatement shall be deemed to be a period of leave without pay. 3. It is understood that for a period of two years from the date of ~r. McRae's reinstatement'in employment, he shall be subject to instant dismissal in the event that (a) he fails to carry out his assigned duties: (b) he is absent without authorization from his assignment Work areas; (c) he consumes alcohol or is under the influence of alcohol during working hours; or (d) he is absent from work without leave as a direct result of alcohol consumption. 4. The grievor, Mr. McRae, shall not be eligible for a custodian position unless and until he has completed at least two years, consecutively, of satisfactory service. ~ 5. The terms of this Settlement are deemed to be a~Order of the G.S.B. 6. The Union and grievor agree to withdraw the captioned grievance. This Memorandum was signed by the employer, the Union and the grievor. The grievance relates to a time period prior to the termination which was the subject matter of the Memorandum o~ Settlement. Upon termination on May' 4, 1988 the grievor was paid 12% days pay for the earned to date vacation for 1987/88. The grlevor~ now wa~ts those 12% days off and o~ course would not be paid ~or them as he had already been paid. The relevant provisions with respect to vacation are Articles 17.02 and 17.03. 17.02 (a) Vacation and vacation pay will accrue on the following basis: (i) For less 'than one (1) year of continuous service as of June 30, one and one quarter (1%) days of vacation leave for each full completed calendar month of service up to a maximum of fifteen (15) days, and the employee shall be entitled to receive as - 3 vacation pay anamount equal to six percent (6%) of total earnings for the vacation year provided that on commencing employment an employee shall not be permitted to take vacation until the completion of six (6) months of continuous service. (ii) For one (1) year or more but less than nine (9) years of continuous service as of June 30, fifteen (15) days of vacation leave and six percent (6%) of total earnings for the vacation year. (iii) For nine (9) years or more but less than eighteen (18) years of continuous service as of June 30, twenty (20) days of vacation leave and eight percent (8%) of total earnings for the vacation year. (iv) For eighteen (18) or more years of continuous service as of June 30, twenty- five (25) days of vacation leave and ten percent (10%) of total earnings for the vacation year. (a) Effective July 1, 1988, vacationand vacation pay will accrue on the following basis: (i) For less than one il) year of continuous service as of June 30, one and one quarter (1%) days of vacation leave for each full completed calendar month of service up to a maximum of fifteen (15) days, and the employee shall be entitled to receive as vacation pay anamount equal to six percent (6%) of the employee's total earnings for the vacation year provided' that on commencing employment anemployee shall not be permitted to take vacation until completion of six {6) months of continuous service. (ii) For one (1) year or more but less than eight (8) years of continuous service as of June 30, fifteen (15) days of vacation leave and six percent (6%) of total earnings for the vacation year. (iii) For eight (8) or more Dut less than seventeen (17) years of continuous service as of June 30, twenty (20) days of vacation leave and eight percent (8%) of total earnings for the vacation year. (iv) For seventeen {17) years or more but less than twenty-five (25)'years of continuous service twenty-five (25) days of vacation leave and' ten percent {10%) of total earnings for the vacation year. (v) For twenty-five (25) or more years o~ continuous service as at June 30, thirty (30) days of vacation leave and twelve percent (12%) of total earnings for the vacation year. 17'.03 Vacation leave and vacation pay as accrued in accordance with Article 17.02 above must be taken within twelve (12) calendar months after the end of the vacation year in which ~the vacation was accrued unless the Employer and the employee mutually agree to extend the period ~. during which vacation may be. taken. In any event vacation leave and vacation pay must be taken before the end of the second vacation year immediately after the vacation has accrued. Vacations will normally be taken in an unbroken period. The grievor's position is that he is being subjected to the company's agreement to be put 'back to work. By this, he means that the proposals for settlement in the dismissal were from the employer. He further argues that he misunderstood wh~t was involved in the sentence "without prejudice" and "full and final settlement." He stated that that had never been discussed and he misunderstoodwhat it meant. The Memorandum finally came to him in written form and it was read to him by J. Lynd, the Union Representative. The grievor at this hearing stated to this Board that he could live with it but he though that "full and final settlement" meant the employer's last position. The grievor further argued that the Memorandum does not say anythingabout vacation leave, while it is otherwise specificabout other issues. In other words, as I understated this point, the grievor is saying that the Memorandum by not speaking of the issue le~t him free to. grieve vacation. ~lr. Tarasuk, appearing on behalf of the employer argued that the }~emorandum was a full and Cinal settlement made with the participation of the Union, the bargaining agent for the grievor. Accordingly, since it was a full and final settlement with the effect of a GSB Order, it is no longer open to the Board to deal with the matter, i.e., it has no jurisdiction: The Memorandum does not state that the Board remained seised. The employer's counsel also referred the Board to the arbitration case of Municipalitv o_~ Metropolitan Toronto and Canadian Union of Public Employees, Local 43. (1974) 8 L.A.C. (2d) 54. In that case, the grievor was dismissed by his employer. Immediately subsequent to the discharge he was offered his vacation pay, indicating at that time that the employer intended that the grievor receive his entitlement to vacation time off. Chairman Carter writes at page 57: "In these circumstances, it can be said that the primary reason for the grievor's absence from work during the first three weeks following discharge was the provlslon of the vacation entitlement and not the discharge. The fact t~at the [p 58] grievor refused to accept the cheque for vacation pay does not change the board's characterization of the period o~ absence, since the grievor was under the obligation to mitigate his loss by accepting the benefit being offered. It is interesting to note that the Unemployment Insurance Commission regarded the three-week period following discharge as a period when earnings were received, so that during that period the grievor was under no obligation to look for other employment. The board recognizes the fact that, because of the discharge the grievor may not have considered the three-week period of time off as much of a holiday. The determination of whether an absence from work is ~a vacation, however, cannot depend on the purely subjective consideration of w~ether the employee has had an enjoyable time. As was pointed out in the Atlas Steels case, supra, absence from work must be characterized h¥ the purpose for which it is granted, and not by the degree of enjoyment experienced by the employee. On the facts of this case, the board concludes that, since the first three weeks following discharge amounted to a vacation period for the grievor, the grievor has not established that any loss was suffered." In our own case, the employer argues by the terms of the Memorandum, the grievor was after its signature on a leave pending the-availability of a ground keeper's job. In that sense he was in a better position that the grievor in the Metropolitan Toronto case to en~oy h~s time off having been paid his vacation pay. Let me begin by commenting that this is not a situation of one of the parties coming back to ask a Board panel to interpret one of its ow~ Decisions. The grievance before us is a different grievance from the one that resulted in The Memorandum of Settlement and we were not the panel in the other grievance. I do not think that we are without jurisdiction to entertain the grievance Rer s_~e. Rather, I think that the employer's true defence to this grievance is that essentially the grievor is issue estopped from claiming vacation. One of the issues that needed to be addressed between the parties in the discharge grievance was vacation: the grievor had been given his vacation Pay; if he wished to take the vacatio~ off instead (ie. having already been paid) he would essentially do so as he now proposes ie. as a leave without pay. But he had to raise it then as an issue. It wa___~s an issue within the scope of the negotiated discharge whether actually discussed or not. Clearly it would not be a Great issue but it certainly could have been put on the table and indeed that is when it should have been put on the table if the grievor really wanted it. Any negotiated settlement of an arbitration case especially a discharge invariably is a final settlement of all the issues raised by the discharge including all aspects of compensation. This settlement says so clearly and it would be a very poor procedure for it not to have so provided. The parties, to put it bluntly, cannot keep coming back to the well especially in labour relations. Ifthe grievor, as I conclude, either simply did not think at the time to raise it or insist on it as an issue, then it is now too late. He signed the Agreement and there is no evidence before me of any bad faith or misrepresentations by anyone. I consider this Memorandum of Settlement a full and complete defence to this grievance. Accordingly, the grievance is dismissed. DATED at Toronto this 20tfda¥ of Septembe~ 1990. Thomas H. Wilson, Vice-Chair ,..'%.., , .,/ ,:.. , , . . ' M. /~¥ons ' Member