HomeMy WebLinkAbout1992-3676.Bowen.94-09-02
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ONTARIO EMPLOYES DE LA,COURONNE
I CROWN EMPLOYEES DE L'ONTARIO
1111 GRIEVANCE COMMISSION DE
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SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO. M5G lZ8 TELEPHONE/TELEPHONE (416) 326-1388
180, RUE DUNDAS OUEST BUREAU 2100, TORONTO (ONTARIO) M5G 1Z8 FACS/MILE /TELE:COPIE (416) 326-1395
3676/92
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
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BETWEEN
OPSEU (Bowen)
Grievor
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The Crown in Right of ontario
(Ministry of Health - Kanata Ambulance)
Employer
BEFORE: A. Barrett Vice-Chairperson
J carruthers Member
M. Milich Member r
FOR THE M McFadden
UNION Counsel
Koskie & Minksy
Barristers & Solicitors
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FOR THE M. contini
EMPLOYER Counsel
Mathews, Dinsdale & Clark I
Barristers & Solicitors
~ HEARING December 7, 1993
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DECISION -,
The-hearing in this matter proceeded on an Agreed Statement \
of Facts which is reproduced below
" The following agreed facts are without prejudice and
without precedent to any other matter that may arise
between the parties
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1 The Grievor commenced employment with the Employer
on April 5, 1982
2 A renewal Collective Agreement was entered into
between the Union and the Employer for the period of
April 1, 1989, to December 31, 1991 ('Collective
Agreement I'), and this Collective Agreement was signed
in July of 1991 )
3 The Employer's vacation year is April 1 through to
the following March 31
4 Normally, vacation credits are taken in the year
that they are accrued
5 The Grievor was injured in the course of his
employment on February 14, 1991 ('the injury') Since
that date, ~the Grievor has been in continuous receipt of
worker compensation benefits Due to the injury, the
Grievor has been unable to return to his duties with the .~
Employer It is not anticipated that the Grievor will
return to his duties with the Employer i.Q. the near
future It is possible that the Grievor will not ever be
able to return to his duties with the Employer, but this
cannot be stated with certainty at this time
6 The Employer became aware of the long term nature
of the Grievor's disability in December of 1991
7 After recetving Collective Agreement I, the Grievor
requested payment for his vacation credits earned prior
to February 1991, in a letter to the Employer dated July
28, 1992 The letter said
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'July 28, 1992
Mr. D Powell
Manager
Arnprior/Kanata Ambulance Service
P 0 Box 13068
Kanata, Ontario
K2K-1X3
Dear Mr Powell
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Please accept this letter as a formal request for payment
of all earned vacation pay prior to my back injury of
February 14, 1991
Sincerely,
Gary Bowen'
8 The Employer responded to the request in the form
of a letter dated August 14, 1992 -The letter said
~ 'August 14, 1992 !
Mr Gary Bowen
45 Castlefrank Rd
Kana'tfa, Ontario
K2L-2E6
RE Payment of Vacation Credits
Dear Mr Bowen,
I am in the process of reviewing your vacation credit
records to pay you any outstanding amounts that you may
be entitled to
I have been very busy over the past couple of weeks with I
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budgetary matters, but that is out of the way now
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As you can imagine it will take me a few days to dig up I
all the records and process the above item I
I hope that this letter finds you well I
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Sincerely, I
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D R Powell' I
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9 The Grievor received payment in full, as per the
request made in his letter, in approximately November of
1992 The vacation pay received by the Grievor was for
the entire vacation year ,1990-1991, that is, the Grievor
had his vacation entitlement paid through to March 31 of
1991 As at April 1, 1990, the Grievor had accumulated
200 hours of vacation credits, constituted by a carry-
over of 80 hours from the previous year combined with the
120-hour entitlement for the current year Through the
vacation year 1990-1991, the Grievor used 140 hours of
vacation credit, leaving a balance of 60 hours payable
It was the 60 hours payable which was paid to the Grievor
in November of 1992
10 After his receipt of the payments as described in
paragraph 7 herein, the Grievor formally requested
additional vacation payment beyond February 14, 1991, in
a letter to the Employer dated November 30, 1992 The
letter said
'November 30, 1992
Mr D Powell
Operator
Arnprior & Kanata Ambulance Service
P 0 Box 13068
Kanata, Ontario
K2K lX3
Dear Mr Powell
Thank you for the cheque for vacation time prior to
my injury It will certainly come in handy
I was hot informed that you had continued to cover
my family and me for health care benefits I was under
the impression that they ceased in February 1992, as per
the Workers' Compensation Act, and made arrangements for
coverage elsewhere It would be advisable for you to
cancel the insurance coverage as soonl as possible
Further, since you decided to continue the benefit
package without telling me your intentions, I do not
expect to pay for it Therefore I respectfully request
a refund of the $67 02 deducted from my vacation pay
{
I have one further request It has been pointed out
to me that according to our contract, vacation time is
considered a benefit that is accumulated while employed
in your service If this is so I trust you will
recalculate the outstanding vacation pay,- and send me a
cheque to cover the balance
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I understand you received an enhancement to hire a
secretary Congratulations This should make your
administrative tasks simpler Please respond by December
07, 1992 I look forward to hearing from you
I wish you and your family a joyous festive season
Respectfully, I
11 The Employer formally denied the vacation pay
request made in a letter dated January 7, 1993 The
letter said
'January 07, 1993
Mr Gary Bowen
45 Castlefra'nk
Kanata, Ontario
K2L 2E6
RE Your Inquiry of Vacation Credits
Dear Mr Bowen,
After reviewing your request for additional vacation pay,
over and above the earned entitlement, with my legal
counsel, it is the express opinion of this management
that you are not entitled to any further vacation pay at
thj.s time
Circumstances would be,different had you returned to work
for this firm during the past 23 months, but you have
not
I trust that you received the cheque to cover the
deductions, for the Extended Health Plan, and that all was
in order
Respectfully,
o R Powell'
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12 The Grievor commenced full-time studies at Carleton
University in the Fall of 1992 with a view to obtaining
a three-year Bachelor of Arts The Grievor's tuition and
re~ated expenses are being paid by the Workers'
Compensation Board as part of a re-training program "
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At issue is an interpretation of Article 13 01 of the parties'
collective agreement, the relevant portions of which are reproduced
below
I "ARTICLE 13 - VACATIONS
i 13 01 Vacations with pay will be granted annually as
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I follows for full-time employees,
One hundred and twenty (120) hours after one
(1) year of continuous service;
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By grievance dated January 14, 1993, Mr Bowen claimed
vacation pay from February 14, 1991, to the present It is the
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position of the employer that vacations with pay are a benefit
earned by service and that the parties, when formulating their
vacation clause, could not have intended to prov~de for vacation
pay in any given year where there was absolutely no service
performed whatsoever Counsel argues that such an interpretation
would lead to the absurd result of an employee off work earning
more than an employee working full time, in that the vacation pay
would be in addition to the 90% of net pay provided by the
Workers' Compensation Board for 52 weeks a year
The union says that this issue has already been determined by
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this Board in a 1987 decision (Sears, GSB #1129/86 (M G Picher))
That case involved a different collective qgreement with a
different vacation clause, which is set out below:
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"ARTICLE 47 - VACATIONS AND VACATION CREDITS
47 1 Effective January 1, 1992, an employee shall
earn vacation credits at the following rates
(a) One and one-quarter (1-1/4) days per month
during the first eight (8 ) years of
continuous service,
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47 2 An employee is entitled to vacation credits
lunder Section 47 1 in respect of a month or
part thereof in which he is at work or on leave
with pay
47 3 1 An employee is not entitled to vacation
credits, under section 47 1 in respect of a
whole month in which he is absent from duty for
any,reason other than vacation leave-of-absence
or leave-of-absence with pay
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47 3 2 When an employee is absent by reason of an
injury or industrial disease for which an award
is made under the Workers' Compensation Act,~
) he shall accrue vacation credits only for the
period during which he is in receipt of salary
in accordance with Article 54 2 "
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1 There the Board f~amed the issue as "whether or not when the
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grievor was absent on workers I compensation, he was on a leave
with payor a leave without pay" The Board found that the grievor
was on a leave of absence with pay and therefore entitled to
accumulate vacation credits. The Board adopted the reasoning in Re
Joseph Brant Memorial Hospital of the Burlinqton-Nelson.Hospital
and Canadian Union of Pu~lic Employees, Local 1065 (1973) 5 LAC )
(2d) 15 (Brown), wherein it was said
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"There might in a proper case be ground for termination
of employment of employees who must be absent from work
because of compensable injuries, but to affect seniority
and other benefits specifically prov.ided in the
collective agreement would take clear and unequivocal
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language which is absent in the collective agreement
between these parties "
The same reasoning was also adopted in Re Cranbrooke and District
Hospital and Registered Nurses' Association of British Columbia
(1979) 24 LAC (2d) 274 (Thompson), wherein it was said
"Both public policy and the parties in collective
bargaining have long recognized the special circumstances
of employees receiving [WCB] payments Their absence from
work is a direct result of performance of their duties
They are subject to periodic examination or treatment
through the WCB, and they suffer a reduction in income
under the schedule of payments They must be offered
employment when they are able to resume work These
considerations separate them from employees who are sick
or are granted voluntary leave In this case, the grievor
did not apply for a leave of absence, nor was she
formally granted such a leave
For all of, these reasons, arbitrators normally rule
that the emploYment relationship continues in all
significant respects during an absence arising from a
work-related injury Therefore, clear language is
necessary to deprive employees of any rights under the
collective agreement while they are receiving WCB
payments ..
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In the Sears case, the Board held that the grievor was on a
leave of absence with pay within the meaning of Article 47 3 of
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the collective agreement and as a result was entitled to the
continued accrual of vacation credits under Article 47 1 of the
agreement
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The Sears case was followed in Aubin, GSB #515/88 (Knopf),
where both counsel agreed that as a result of the Sears case, the
grievor was entitled under Article 47 2 to accumulate vacation
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credits when he was off work on a WCB claim There the Board also
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I held that it was an appropriate case to relax against the 20-day
rule with respect to retroactivity of the claim because the grievor
had no way of knowing that the employer was improperly failing to
credit him with vacation credits In addition, said the Board at
page 7 "Because we are in a situation of a continuing breach and
a situation where the vacation credits can and should be able to
be calculated at any given po~nt in time, we are also not convinced
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that the Union was actually seeking retroactive relief Thus, for
all these reasons, we agree with the Union's submission that a
declaration is appropriate that takes into account all the vacation
credits to which the grievor is entitled " .
The union provided us with one case where the collective
agreemept had virtually identical wording to our ,Article 13 01 (Re
I Kingston Regional Ambulance Service and Ontario Public Service
Employees Union, Local 462 (1992) 22 LAC (4th) 193 (Watters))
In that case the issue involved the accumulation of vacation
credits during long-term absences on urc benefits and long-term
disability payments There the Board said at page 201
" This dispute has arisen largely from the fact that
continuous service is not defined for purposes of art
25 01 of the collective agreement In the absence of such
a definition, the board adopts the approach taken in the
cases relied on by the union This approach is summarized
in Re Rahey's Supermarket by the following excerpt (at
p 315)
, In summary, it can be stated that arbitral
jurisprudence generally supports the position
that vacation entitlement which is predicated
upon 'length of service' is not affected by an
employee's involuntary absence unless there is
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clear language in the collective agreement
which explicitly or by implication purports
otherwise ,
A similar analysis is found in Canadian Labour
Arbitration, 3rd ed , Brown and Beatty, wherein the
authors state at para 8 3220
I The language of the agreement itself will I,
frequently settle the issue of which periods
that an employee remains off work can be
counted in computing her vacation entitlement
Thus, while the arbitral jurisprudence may
have been otherwise at one time, where the
amount of vacation payor duration of vacation
is calculated on the period of time a person
has been 'continuously employed' or 'in
service', in the absence of some clear
expression of intention to the contrary, most
arbitrators have held that employees who have
engaged in a lawful strike, were off work \
because of illness, disability, leave of
absence, maternity leave, or because they had
been laid off during the course of the year,
were entitled to count such time that they
were not at work Where, by contrast, the
agreement makes the accumulation of vacation
credits conditional upon actual performance of
work, active employment, or upon being on the
payroll, working a specific number of the
available wqrking hours, or where it limits
the accumulation of vacation credits to
specific instances, the resolution would
likely be otherwise ' "
The Board's finding in that case, that the grievor was entitled~o
accumulate vacation credits while on long-term sick leave, was
strengthened by the fact that elsewhere in the parties' collective
agreement there were provisions stipulating that credit for both
seniority and service for the purposes of vacation, salary
increments, sick leave and other benefits is suspended during
maternity and adoption leave The Board noted that this provision
suggested that the parties were capable of isolating restrictive
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The employer argues for an implied condition that benefits are
granted in exchange for work actually performed and relies upon
some obiter comments found in Re Canadian Union of Public
Employees, Local 43, and Municipality of Metropolitan Toronto
(1972) 24 L.A C 318 (Weiler) At page 328 of that decision, the
Board said l
II In concluding our opinion we must remark that we do
appreciate the commonsense proposition that there has
to be some relationship between the performance of
services by the employee and the receipt of welfare
benefits to, which the employer has contributed While
lengthy disability of the employee is an unfortunate
circumstance for him and his family, there has to be some
benefit accruing to the employer as consideration for his
continued payment for the benefits received by the
employee It would be absurd to read a collective
agreement as providing for life-time payments by the
employer in respect of employees who do not and cannot
work for him
Of course, even though the person who is sick and
absent continues to be an employee, he may be disentitled
to receive certain benefits under the collective
agreement because of qualifications in the provisions
creating these ,benefits Ordinarily these conditions
would be explicit and would have to be interpreted to see
how they should be applied to the case of the sick
employee Even in a case such as this, where there are
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no such qualifications expressed in the language of the
agreement, a board of arbitration might be justified in
finding an implied condition, on the grounds that it is
unreasonable to conclude that the contract benefit in
question was intended for this particular kind of
employee in his situation II
The collective agreement at issue in this case does not have
clauses similar to Articles 47 2 and 47 3 in the Sears case
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However, Article 47 1 is similar to our Article 13 01 under
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consideration in this gr~evance, in that both speak of "continuous
service" as a criterion for entitlement It appears that the Sears
Board was examining Articles 47 2 and 47 3 to determine if they
placed~ limitation on the general right to accrue vacation credits
found in Article 47 liThe union says that Article 13 01 provides
this general right to vacations with pay and there is no language
els~where in the agreement that limits that right for employees
absent on workers' compensation
Presumably, when negotiating Article 13 01, the employer felt
sufficiently protected against providing benefits to people such
as the grievor on long-term weB by Article 15 04(c) which states
that seniority and employment saall terminate when an employee has
been absent due to layoff, illness or accident for more than twelve
(12) months However, recent case law suggests that such a
termination of employment may be contrary to the Human Rights Code
and the employer's duty to accommodate handicaps In any event, the
grievor'semployment has not been terminated
We do not consider ourselves bound by the Grievance Settlement
Board cases of Sears and Aubin because of the different collective
agreement wording, but we are persuaded that the same result must
be achieved The grievor is still a full-time employee and
therefore in "continuous service" There is nothing in this
collective agreement which expressly or impliedly limits the
accumulation of vqcation credits during a weB absence from work
We agree with the rationale exp'ressed in the Re Joseph Brant
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Memorial Hospital the Re Cranbrooke and . ..1 Hos?ital
case, Dlstrlct
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case and the Re Kingston Reqional Ambulance Service case We also (
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agree with the "continuing breach" rationale in the Aubin case
Accordingly, we declare that the grievor is entitled to accumulate
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vacation credits while he remains an employee and while he remains
unable to return to his duties and is in receipt of workers'
compensation benefits There are amounts owing to the gfievor for
the period from April 1, 1991, through April 1, 1993, and we remit
the calculation of those amounts to the parties We will remain
seized of jurisdiction in the event there is any difficulty in
implementing this award
Dated at Toronto this 2nd day of September, 1994.
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A Barrett, Vice-Chairperson
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~carruthersl Member
I Dissent "Dissent Attached"
M Milich, Member
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Dissent
In the matter of a grievance between.
OPSEU (Bowen)
and \
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Kanata Ambulance
GSB File Number' 3676192
I have reviewed the draft award in the above matter, and regrettably I
cannot concur in the decision. While I have no quarrel with the interpretation of
the jurisprudence in the award, I am disturbed that this award goes much
further than the cases upon which it is based.
The significant difference between the cited cases and this grievance is
that the cited cases were all decided after employees had retumed to work and
were seeking a determination of what their vacation entitlement was upon their
retumto work. In the instant case, the grievor is not currently at work and. in
filet, has not been at work since February 14, 1991 Further, his return to work
is not likely in the forseeable future and in fact he may not return to this
employer At present, he is enrolled at Carleton University under the auspices
of the Workers' Compensation Board as part of a re-training program. This
award effectively pennits the grievor to collect vacation aedits for as long as he
is in receipt of workers compensation and/or not working elsewhere. No
Employer'in my experience would willing agree to such an outcome of the
language of the collective agreement.
Collective agreements are negotiated within the context of local
conditions and understandings. In this context, Mr Bowen requested in his
letter of July 28, 1992 that the employer pay his "earned vacation pay" It was
not until some four months later that Mr Bowen asks for more than the earned
amount. It would seem that, at least initially, both parties had the same
understanding of the vacation credits owed Mr Bowen. If the local
understanding differred from the original request, surely, the more general letter
of November would have been sent in July
Nor have my collegues given sufficient consideration to the employer's
argument that the language of Article 13 is clear Vacation time and pay are
inseparable. It is "vacation with pay" that is to be granted under the collective
agreement not "vacation pay" The two concepts are very different and were
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recognized as such in an early award. At page 2056 of United Electrical
Workers" Local 514, re Amalgamated Electric Corp, the arbitrator states:
Itlt does not, in our opinion, expressly or impliedly give any right of payor
compensation in lieu of vacations which is something quite different from money
recieved as pay-for the period during which a vacation as such is being taken."
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We were not presented with jurisprudence which woul~ indicate that the
two phrases mean the same thing.
There is nothing in the collective agreement which allows compensation
in lieu of taking the vacation. The fact that the employer had paid out the
eamed vacation requested by the employee is not sufficient evidence to
establish some form of estoppel which would allow this ,panel to, ignore the clear
meaning of the agreement. Article 7 02 prevents this panel from expanding the
agreement.
As indicated in the award, it is the language of the collective argreemenf (
which should settle the issue. The jurisprudence that, where vacation
/' entitlement is determined by continuous service, entitlement is not affected
unless clear language, either implicitly or explicitly, indicates otherwise does
create a dilemna for the interpretation of Article 3. The straightforward
resolution of the apparent contradiction between the language of the coll8ctive
agreement and the jurisprudence is that an employee continues to accrue
continuous service for the purpose of determining hislher vacation entitlement
once he/she retums to work.
This approach also meshes with the purpose for which vacatiOn clauses
are negotiatied which is to provide a period of rest from work obligations without
loss. This approach also meets the essential purpose of the Workers
Compensation Act which is to provide protection for injured employees while
attempting to minimize not eliminate their losses. At the same time, s.7 ss.1 of
the Act. limits the length of time an employer is required to maintain an
employee's benefits to twelve mon~hs.
Altematively, the collective agreement clearly sets out that the parties had
not intended that the benefits of the agreement be extented to an employee
beyond a twelve month period. Section 15.03 of Article 15 provides that
seniority will accumulate during the first twelve months of an absence and
clearly implies that such accumulation would cease at that time. Section 15.04
(c) terminates both seniority and emplo.yment after twelve months of absence.
While it may be true that Section 15.04 (c) may be illegal in its automatic
application of the termination of employment due to an illness or absence, it
does not detract from the intent of the parties to limit the bef!8fits flowing from
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the collective agreement. No one has argued that limitting the benefits is either
improper or illegal. Articles 1503 and 1504 (c) state. J
J\15 03 A full-time employee shall accumulate seniority under any of the
following conditions:
I (a) while he is at work for the Company, after he has completed
his probationary period as set out in Section 15.02;
(b) during the first twelve (12) months of any absence due to
illness, accident, lay-off or written leave of absence
15.04 Seniority and employment shall terminate when an employee:
(c) has been absent due to layoff, illness or accident for more
than twelve (12) months;"
The Union has argued that S'ection 15.03 does not apply in the instant
case because it deals with the accumulation of seniority and not continuous
service which they maintain is not defined in the agreement. The arguement
goes that since the two are different the seniority provisions cannot apply to the
continuous serviCe provisions in Article 13 - Vacations I suggest that this
reasoning is incorrect. Sections 15.01 and 1502 of Article 15 state.
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"15 01 Seniority for full-time employees is defined as length of
continuous service with the Company For part-time employees,
seniority shall be defined in accordance with the number of hours
worked, and shall be calculated on the basis of 2080 hours
worked equalling one year of seniority
15.02 A full-time employee will be considered probationary for the first
seventy-five (75) days' worked and will have no seniority rights
during that period. A part-time employee will be considered
probationary for th~ nine hundred (900) hours worked and will
have no seniority rights during that period. Upon completion of
the probationary ~riod. an employee shall have his seniority
dated back to the date he first commenced work for the
Company"
I submit that seniority and continuous service are inextricably intertwined
in this agreement. Sedion 15.01 defines seniority as continuous service or, to
put it another way, continuous service is seniority The only time that they are
separated is during the probationary pefiiod. Thereafter, they are one and the
same thing. To bifurcate the two terms make no sense in light of the clear
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Isngusgeof Section 15.01 Section 15.03, therefore, applies equally to
continuous service and seniority Within this context, continuous service ceases
to accumulate after twelve months and is lost as seniority While the grievor
may still retain his employment status,he would lose all entitlement to vacation~
with pay since being without seniority is also to be without continuous service
and not entitled to any vacation with pay
For these reasons I would have dismissed the grievance. I
Michael Milich
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