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HomeMy WebLinkAboutMullen 06-05-04 , ~E-C-E~VEC ~~A¥ [ f!tJ~ '" ~-'----'--'- c; f' ~ ~ 0 0 '; - o~Lolo ~ 0 0 ~ b IN THE MATTER OF AN ARBITRATION BETWEEN: Children's Mental Health Services Sudbury (The Employer) - and - Ontario Public Service Employees Union, Local 666 (The Union) Grievance of Maija Mullen BEFORE: R. Jack Roberts, Arbitrator FOR THE UNION: Will Presley District Grievance Officer FOR THE EMPLOYER: Marc A. 1. Huneault Counsel HEARINGS: Sudbury, Ontario May 4, 2006 . 1 INTERIM AWARD At the outset of the hearing, the parties indicated that they wished to obtain a ruling on a threshold issue in the present case. The threshold issue was as follows: In article 12.02 of the collective agreement, which provided for periodic written assessments of probationary employees "toward the end of every forty (40) shifts worked," did the parties contemplate counting toward the forty shifts worked only those shifts on which the probationer worked at least seven hours, or all shifts on which the probationer worked, regardless of the amount of time actually worked on each shift ? The resolution of the issue was complicated in the present case by the fact that the grievor was not a probationary full-time employee but a probationary permanent part- time employee who was often scheduled or called in to work for irregular hours. At first blush, article 12.02 of the agreement seemed to fit more easily the circumstances of a regularly scheduled full-time probationer, with its emphasis upon shifts worked instead of total worked hours. Counsel for the employer, Mr. Huneault, submitted that the only place in the collective agreement where "shift" was defined was in Appendix C of the agreement, which was a letter of understanding setting forth the parties' agreement that "the Centre's regular work week is a thirty-five hour work week, consisting of seven (7) hours of work, Monday through Friday." The District Grievance Officer for the union, Mr. Presley, submitted that 2 Appendix C was unhelpful in the circumstances of the present case because it was expressly made inapplicable to "the regularly scheduled shifts in residential programs," where the grievor worked as a permanent part-time employee. The shifts in the residential programs, he said, were eight hours long, twenty-four hours per day, seven days per week. Both Mr. Huneault and Mr. Presley thereafter referred me to several provisions of the collective agreement in which the word "shift" was used in various contexts. I found most interesting article 23.01(b), which defined the normal hours of work for all employees as seven (7) hours per day, excluding the lUnch period; article 23.03, which provided for rest periods in each half of an employee's "normal" shift; and, article 23.04(a), which computed overtime from the end of an employee's "normal" shift. While these provisions seemed to make sense when applied to full-time employees, they, like article 12.02, tended to be difficult to apply to permanent part-time employees. In my opinion, the best way in which to derive the intent of the parties regarding the application of article 12.02 to regular part-time employees is to interpret it within the context of the remainder of article 12. Article 12 is entitled, "Probationary Period." In article 12.01, newly-hired employees, whether full-time or permanent part-time, are placed on "probation for the first one hundred and twenty (120) shifts worked." Article 12.02 provides probationers with written feedback on their performance "towards the end of every forty (40) shifts worked." Article 12.03 provides that the discharge of a 3 probationer "shall not be the subject of a grievance, except as to whether or not there has been compliance with" article 12.02. The entire scheme of article 12 makes perfect sense when applied to full-time employees. It stumbles badly, however, when it comes to part-timers. Mr. Huneault stressed in his submissions that to interpret as a "shift worked" one or two hours of work by a part-time probationer would deprive the employer of the adequate opportunity to assess the probationer that article 12.01 sought to secure for the employer. Mr. Presley met this submission by observing that the longer shifts worked by part-time probationers would, in all likelihood, balance out the shorter shifts. I do not think that when the parties drafted article 12 of the agreement, they intended to be so cavalier as Mr. Presley suggested when it came to securing an adequate opportunity to assess part-time probationers. Likewise, I do not think that they intended to discount as unworked shifts periods of time worked by part-time probationers of some five to six hours. In my opinion, when it came to probationary part-timers, the parties must have intended to count as a "shift worked" every seven hours of time that the probationary pert-timer worked. This would secure to the employer a period of assessment that would be roughly equivalent that applicable to probationary full-time employees. It also would secure to part-time probationers periodic written assessments under article 12.02 at . 4 roughly the same points in their working relationships with the employer as full-time probationers. Moreover, the calculation of the number of shifts worked by part-time probationers for purposes of article 12 would be simple and straightforward -- it would only involve totalling all hours worked by a part-time probationer and dividing that sum by seven. (As noted by counsel, supra, article 23.01(b) of the agreement defines the normal hours of work for all employees as seven hours per day, excluding the lunch period.) A declaration to the above effect is hereby entered. 1 Dated at Sudbury, Ontario, this 4th day of May, 2006. / /" / .-' / --~ / o- j' -,~..- ",' - /'" ,I /~ 1/ Arbitrator I Subsequent to the issuance of the interim award in the course of the hearing, the parties reached a settlement that resolved all other outstanding issues. ^