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HomeMy WebLinkAbout1991-2520.Morton.93-06-16 CROWN EMh,t.~,fEESr. OE L'ONTARIO ' -- GRIEVANCE . C,OMMISSION DE' SETTLEMENT REGLEMENT BOARD DES GRIEFS 1,90 DUNDAS STREET WEST, SUITE 2700, TORONTO, ONTARIO. M5G 180, RUE DUNDAS OUEST, BUREAU 2~O0, TORONTO (ONTARIO], MSG IZ8 FACSIMILE/T~L-~COPIE : ~4'~5) 325-7396 2520/91 IN THE MATTER OF ANARBITRATION Un4er / THE CRONNEMPLOYEEB COLLECTIVE BARGAINXNG ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Morton) Grievor - a~d.- The Crown in Right of Ontario (Ministry of Correctional services) Employer BEFOREs A. Barrett Vice-Chairperson E. Seymour Member M. O'Toole Member FOR THE M. Doyle UNION Counsel Ryder, Whitaker, Wright & Chapman Barristers & Solicitors FOR THE J. Benedict· EMPLOYER Manager, Staff Relations & Compensation Ministry of Correctional Services April 5,' 1993 - DECISION Mr. Morton worked as an unclassified Correctional Officer 1 for approximately one year before winning a competition and becoming a classified Correctional Officer in December, 1989. He grieves that he was not properly credited with his unclassified service for purposes of calculating his seniority date pursuant ~o Article 25.1 of the collective agreement which was in effect at the time seniority was determined. Article 25.1 is set out below. "25.1 An employee's length of continuous service will accumulate upon completion of a probationary period of not more than one (1) year and shall commence: (a) from the date of appointment to the Classified Service for those employees with no prior service in the Ontario Public Service;' or (b) from the date on which an 'employee commences a period of unbroken, full-time service in the public service, immediately~ prior to appointment to the Classified Serv$ce; or (c) for a regular part-time civil servant, from January 1, 1984 or from the date on which he commenced a period of unbroken, part-time service in the public service, immediately prior to appointment to a regular part- time position in the civil service, whichever is later. 'Unbroken service' is that which is not'interrupted by separation from the Dublic service; 'full-time' is continuous employment as set out in the hours of work schedules for 'the appropriate classifications; and 'part-time' is continuous employment in accordance with the hours of work sPecified in Article 61'.1.~' · Mr. Morton claims ~hat he should have been given credit for six months' full-time service pursuant to Article 25.1(b) because during the six months immediately prior to his appointment to the classified service,, he worked an average of 40 hours per week'~if Overtime hours were counted in. In each of· the six months preceding his appointment to the classified service, Mr. Morton worked at least 160 hours per month~ including overtime. Classified Correctional Officers work 40 hours per week, comprised of five eight-hour days, as Schedule 4.7 employees. Mr..Morton's unclassified contracts Specified that he was to work "as required part time up to 40 hours per week". He testified that he was called in on an irregular basis to work anywher~ from 28 to 64 hours per week covering for classified staff who were sick, on vacation, or on training courses. Sometimes ,he was scheduled to work one or two days in advance; at other times he was called in at the last minute. He worked anywhere from 4 to 16 hours per day depending on need. When management determined Mr. Morton's seniority date pursuant to Article 25.1(b), it looked at the number 0f Weeks immediately preceding the appointment to the classified staff in which Mr. Morton had worked 40 regular hours, not including overtime. He had worked 40 regular hours for five weeks immediately preceding his classified appointment. The.sixth week~ Back he had worked only :~2 regular 'hours, so management: looked no further to determine the date of hi's "full-time continuous employment". Article 25.1(b) was interpreted by this Board 'recently in a very similar fact 'situation.. In Pitfield 'et al, GSB #2564/91 .(Verity), the union had contended on behalf of 10 classified Correctional Officers that they should be credited with back service to the date of their first 'contract in the unclassified Service,- regardles's of the number of hours actually Worked in a particular week, assuming there was no break between contracts and that the employee worked whatever hours were requested Of him. At page 7 of the Pitfield et al decision, the Board explained the operation of Article 25.1(b) as follows: " The aim of Article 25.1(b) of the collective agreement is to equate ·full-time employmeht in the unclassified service with the regular.hours of work of a classified employee,~in order to determine length of continuous service. It is an.equitable concession, we think, to equate full-time unclassified employees, in this Case those working 40 hours per week,.with full-time classified employees for the. purposes of seniority. If the parties had intended to include any employee, regardless of hours worked in the unclassified service, they could have said it in a sentence. The drafting of a collective agreement involves the drawing of lines. In this case, we are of the opinion that, for the purposes of length of continuous service, the line is drawn from the date that an employee 'commences a period of'unbroken, full-time service in the public service, immediately prior to appointment to the Classified Service'. Unfortunately for the representative .grievor, he didn't come within the line inasmuch as he worked 32 hours during the week prior to his appointment to the classified service, which, of course, does not constitute full-time service. ~ To read Article 25.1(b) otherwise is, in our view, an attempted addition to the collec~tive agreement which is not there." In that case, the Superintendent of the Sault Ste. Marie Jail had credited the newly-classified employees with "continuous full-time service" for the number of consecutive weeks that they~had worked 32 hours or more, contrary to the provisions of Article 25, as a matter of perceived fairness on his part. Those grievors who had benefited by the 32-hour cutoff lost the extra seniority they had gained as a result of the Board's decision. We agree with the reasoning in Pitfield et al and for that reason this §rievance must fail. -We believe the employer properly credited Mr. Morton with five weeks' seniority for those weeks that he worked 40 regular hours 'per week immediately prior to his classified appointment. We do not accept the alternative argument of the employer that because Mr. Morton was on a part-time contract, he cannot gain any advantage at all from Articl~ 25.1(b). If an employee works the regular full-time hours of his or her equivalent Civil service classification, even though on a part-time contract, he or she should be credited with those continuous weeks of service for the. purpose of determining seniority. We also reject the submission of the union that overtime hours and monthly averaging of hours can be used to constitute "full-time service" in the face of a very clear definition of "full time" contained in Article 25.1. Dated at Toronto this I6ch day of 'Ju,e, 1993. A. Barrett, Vice-Chairperson E. Seymour, Member M. O'Toote, Member