HomeMy WebLinkAbout1991-3084.Williams.92-12-15~; ! ONTARIO EMPLOYES DE LA COURONNE
'~'~ ~ CROWN EMPLOYEES DE L ONTARIO
GRIEVANCE C,OMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
t80, RUE DUNDAS OUEST, BUREAU 2~00, TORONTO ONTARIO). M5G ~Z8 FACSI;',41LE,'TEL~COPIE .. ~4 [51 .225- 1.39~
3084/91
IN THE HATTER OF AN ARBITRATION
Under
THE CROWN EMPT~OYEE8 COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Williams)
- aBd -
The Crown in Right of Ontario
(Ministry of Correctional Services)
Employer
BEFORE M. Watters Vice-Chairperson
FOR T~E G. Adams
GRIEVOR Grievance Officer
Ontario Public Service Employees Union
FOR THE A. Pruchnicki
EMPLOYER Grievance Administration Officer
Ministry of Correctional Services
HEARING November 26, 1992
The Agreed Statement of Facts provided by the parties~ is
appended to this Award. These facts were supplemented by the
viva'voce evidence of the grievor.
The issue in this case is what is the appropriate continuous
service date for the grievor. The Employer, in its primary
argument, submitted that such question should be resolYed by
recourse to the form of the contract. As a consequence, the
Employer considered January 11, 1988 as the appropriate
continuous service date as that was the date on which the
grievor's contract of employment was formally extended to 40
hours per week. It was submitted that prior to that point, the
grievor was working on a part-time basis and that such employment
could not be considered under.article 25.1 (b) in determining the
continuous service date. In response, it was the position of the
Union that the issue was not to be resolved on the basis of
contractual form. Rather, its representative asserted that I had
to assess whether the grievor, prior to January 11, 1988, was
engaged in full-time service..
The grievor testified that she worked the same hours and
pattern of hours as other full-time Correctional Offic~,r's from
May 1, 1987 onwards. She asserted that full-time Correctional
Officers would not always work 40 hours in a week given the
nature of their schedule. For example, it was suggested that
they might work 32 hours in one week and then 48 hours in the
next week, such that they accumulated a total o~ 80 hours over
the two week pay period, The Employer did not contest that
assertion,
It was the thrust of the grievor's evidence that she
generally worked 40 hours per week commencing on or about May 1,
1987. Further, she stated that she was always paid for 80 hours
of work in respect of each pay period thereafter. The relevant
Attendance Reports were presented at the hearing. These reports
largely confirmed the grievor's testimony. The Employer referred
to three (3) problematic pay periods within these reports.
Firstly, it was noted that the pay period of August 21 to
September 3, 1987, inclusive, showed a total of 72 hours worked.
I am satisfied that the grievor actually worked 80 hours over
this two week period as. credit for a double shift on August 30th
was delayed to the end of the following pay period. That
subsequent pay 'period therefore disclosed a total of 88 hours
worked rather than 80 hours. Secondly, the Employer pointed to
the pay period ending on November 12, 1987. The report for the
period showed a total of 79 hours worked. More specifically, i~
showed that the grievor worked only 7 hours on November 12th.
The grievor disputed Chat entry. It was her recollection that
she worked, and was paid for, a full 8 hours. The remarks noted
on the Attendance Report for December, 1987 seemed to confirm
this statement. The Employer was unable to'clarify the purport
of those remarks. Lastly, reference was made to the pay period
of December 11 to 24, 1987, inclusive. Zt showed a total of only
72 hours worked. I am satisfied that credit was not given for 8
2
hours of sick leave which would otherwise have brought the total
to 80 hours. The Employer also noted that only 32 hours were
worked in the first week of that pay period. Its secondary
position was that any backdating of the continuous service date
should not go beyond December 17, 1987. This argument was
premised on Article 7.2 of the collective agreement which states
that the normal hours of work for employees on schedule 4.7 is 40
hours per week. From the Employer's perspective, the grievor
could not be described as working full time if she did not meet
that weekly threshold notwithstanding that she might work 80
hours over the pay period.
On my reading of articles 7.2 and 25.1 of the collective
agreement, the form of the contract is not the determinative
factor in selecting, a continuous service date. Article 25.1 (b)
does not speak to contractual form. Rather, the specified
criteria is the "period of unbroken, full-time service in the
public service, immediately prior to appointment to the
Classified Service." The concepts of "unbroken service" and
"full-time" are defined in the concluding paragraph of the
article. It is clear that the grievor's period of service was
unbroken in that it was not interrupted by separation from the
public service. The outstanding issue, therefore, is whether her
service may be characterized as full-time for purposes of the
collective agreement.
The definition of full-time in article 25.1 refers ~o "the
hours of work schedules for the appropriate classification. As
stated above, the grievor worked pursuant to Schedule ~.'Z. On a
review of the grievor's wok history, I ?ind that she worked 40
hours in 35 of the 36 weeks .between May 1, 1981 and January 7,
1988. The sole exception established by the Employer was the
week of December 11-17, 1987 in which she worked 32 hours. As
noted previously, the grievor was credited with 80 hours over the
pay period covering that week. In my judgment, such a work
history evidences full-time service for purposes of article 25.1.
This conclusion is consistent with the evidence before me, albeit
limited, as to how the Employer treats its full-time classified
employees. On all of the evidence, it is clear that the grievor
worked 40 hours per week for virtually all of the weeks material
to this dispute. In terms of the sole exception, she worked an
average of 40 hours per week over the course of the pay period.
Given these facts, I am inclined to treat her service as full-
time in the context of article 25.1.
It follows from the above-stated conclusion that the
grievor's continuous service date should be adjusted to May 1,
1987. Merit increases should be premised on that start date.
Any compensation flowing from the ordered adjustment is left to
the parties to calculate. Interest should be paid on any amount
found owing. I remain seized in the event any difficulties arise
from the implementation of this award.
Dated at Windsor, Ontario this tSch day of December, 1992.
M.V. Watters
GSB FILE NO.3084/91
AGREED STATEMENT OF FACTS
IN THE MATTER OF A GRIEVANCE
BETWEEN:
THE ONTARIO PUBLIC SERVICE EMPLOYEES UNION
(Audrey Williams)
Grievor
THE CROWN IN RIGHT OF ONTARIO
(Ministry of Correctional Services)
Employer
1. Ms. Williams is employed at the Metro Toronto East
Detention Centre as a Correctional Officer 2.
2. The grievor commenced employment with the Ministry on
April 6, 1987 as an Unclassified Correctional Officer 1
on a part-time employment contract for the period of
April 6, 1987 to September 30, 1987.
(Appendix 1)
3. The grievor's part-time employment contract was renewed
for the period October 1, 1987 to March 31, 1988.
(Appendix 2)
4. The grievor's part-time employment contract for the
period of October 1, 1987 to March 31, 1988 was amended
to allow for the extension of working hours to 40 hours
per week or full-time employment for the Period January
11, 1988 to March 31, 1988.
(Appendix 3)
5. The grievor's contract was renewed on a full-time
employment basis, for the period April 1, 1988 to
September 30, i988.
(Appendix 4)
6. The grievor's full-time employment contract was renewed
for the period October 1, 1988 to March 31, 1989.
(Appendix 5)
Agreed Statement of Facts cont'd.
November 25, 1992
Page two
7. The griev0r's full-time employment contract was renewed
for the period April 1, 1989 to September 30 1989.
(Appendix 6)
8. During the period of this employment contract the
grievor was appointed to probationary staff as of May
1, 1989, in the position of a General Duty officer,
Classified, at the Correctional Officer 2 level~
Underfilling as a Correctional Officerlduring the
probationary period.
(Appendix 7)
The grievor's continuous service date was 4~s~dated to
January 11, 1988, the date on which the grievor
commenced full-time contract employment.
OCT 21~ '92 i5:E)6 FROI'I r~. APPENDIX 1 PIqGE.(i82
' Noel hou~ of ~rk not :o sx~ ~l ~. -- 40.00 ~
~ ~ic~ may ~ ~rmim~d ~ one ~I) ~ek'a ~ ~ ~ ~
e Ali ~la~ ~n~ ~ ~bi~ ~ ~ [~ai ~ ~k ~t~oldi~ ~ a~ th~
* ~oyee witch the ~intng ~it am ~~ ~ ~ O~(o ~ic ~ Emp$oy~ Un~n ~ i~ H~ Ot~
~at .~TRO TORONTO ~ DE~IO~ CE~, 55 CIVIC ~., SC~BO&0U~.
~LL 2R9,
* ~SU~ :~C~g 8C~DU~D P~T-~ B~LO~E$ ~0 ~Y ~8 ~Qg2~ TO '~OR~ UP
OCT ~G '92 I5:OG FROm HTEDC ~UPT. OFF[CE APPENDIX 2 P~GE.E)03
~or~ ~[a~to H&z. 3A1 ]_~,T.~.D.C. September 10, t~6l
April 6~ 1987 co p~eeen~
~ ~1 ~ ~y~n~ are subj~ ~ an init[ ~ w~k ~thhold~ng ~Hod a~.t~n ~m~t i$ ~a ~o ~ in arrean
e Em~oyee ~thtn t~ ~j~ng unit ~ m~med by t~ ~io ~li~ ~im E~oy~ Union ~th i~ Head ~
at 1~1 Y~ge SL, Talon/o, 0~io. ~ ~i~ ~n~live ~ t~J $ 582 is ~r. ~or$e Clarke
I~a{~at Hecro Toronto ~as~ Oetenti~ Centre, ~5 Civic goad, $carborou~e~tario
BIL 2K9
* Cas~l, irregularly scheduled part-t£me ex~loyees vho ~y be requtzed Co 'rvork
up CO &O.00 hours durin8 their York .~eek",
OCT ;7 'S~ ~e~54 F~O~'l ~lii'~CO C C APPENDIX 3 F~aE.OeZ
.~~ON'i' Me~ Torito ~t Det~t~ Cen~ DAli ~v 1~, 1988 . ..
A~rovgl is requested for the foUowing:
to
~a~fleation ._ ~y ,.
Number of P~tions (if ~l/cable) ._ .
(Pre~o~]y app~ov~ for fuA-time for the
to
. (Previou~y a~e~e~ for
m ~he ~ri~ .. tom -- )
~~ON OF WORK~G HOURS to 40.00 __ per week
GO ~M~RARY OR AGE~Y $TAPF for
EMPLOYE~ N~H (if ~own) Mm A.
CL~CA~ON C~o~ Offi~r 1'
Re.on fop the a~ve noted ee~t ~ as fo~ows: R~M~ ~ W~er ~ ~ ~~~ ~_ _
~eetifl~ t~at sufficer '
Super
K~c~'P~Fsonnel Adm~trstor
gX~U~VE Dffi~R~ ~PROVAL
~f a~Uca~e)
OCT 26 '92 15:07 F;~OH HTEDC SUPT, OFF[CE APPENDIX. 4
'(~ f'~' {-) Ap~ln~ent
$ewices
Onto ~ N~
~ e, 1987 ~ p~t
OCT ~6 '92 i5:07 FROI4 HTEDC SUPT. OFFICE APPENDIX 5 PRGE.005
' Minist~ ~ ~ . ~i- Appotntmenl to
Correctional '~ j e~alnlng Unit ~ ' Unclassified Se~ce
Ont~o ~ ~
~Re~l
~Mr, N~v ~ Fir. Ml~,le ' ~st ~nxur~ Nun~c~
TO O. . L ~tem~ [Os 1961
~to~ 1, 19~8 [ Ma~ al~ I~89 ~ C~~ ~fieer 1 $13.~6
' A~¢ h~m ol ~ ~ requ~d up ~. 40_00 ~um pc ~k.
' S~a ~y ~ ~rm~ed ~ ~e (1) ~ek's ~m~ by ~h~
' All ~ ~y~n~ ~e subj~ to an initi~ t~ w~k withholding ~ a~ then ~ym~t is ma~ ~o ~e~ in at.rs
* Em~ within t~ ~ini~ unit are te~nt~ by t~ ~rio Publ~ ~ice Emolov~s Union wi~h its H~d
at 1 ~1 Y~ S~.. T~onm. Om~o, ~e union m~~ of Iai t ,58) iS. ~ ~
A full-time tmelassifled employee i~ fu/ly integrated into the eegulae si'aft schedule and
works on a c~mt/~uou~ bas/= the ~ameres~lar shift bouts as & comparable classified emp/oyee.
OCT ~IB '::l~ 15:08 FROm HT£Dd SUPT, OFFICE APPENDIX 6 PRGE.005
· A Full-time tmclassJfied em~oyee Ls flflX.y Jnte~*ated into the reKvlJu' m~iJ~ schedule and
world ali a coflt~tuous baab the same regular ~,itt houris aa a com~xu'eble cla..q~fied employe~
TOTAL PAGE, 00~
Cm~e~ Officer, ~
Torrmto ~ l:~tet~Uon Centre.
I am pleased to ~onfirm that you have been identified ~s ~e ot the
~~ e~~ ~ the a~v~ ~m~titi~.
You w[~
fw ~mt., ~ ~t~t ~em~ 1,1989. ~ a~~t
~ ~~t ~ ~~ ~o~~ ~ ~ ~mm~~
~ l
Y~ ~y,