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HomeMy WebLinkAbout1993-0707.Dale.95-03-27 -- \ ONTARIO EMPLOYEOS DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO GRIEVANCE COMMISSION DE }r'1~ )J~\~iI> ~:.~_._' ---~ 1111 SETTLEMENT REGLEMENT . BOARD DES GRIEFS Vv''' c ~ -.... 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1 Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 118 FACSIMILE/TELECOPIE (416) 326-1396 ._._...._, '".....Gi..;i..i."...~ rVED ,..\o;:"'~'" . '.' ~~~~\;E ~ 0 .' GSB# 707/93 fj 't,...li:' ~ OPSEU# 93E020 MA.R 2 9 1995 IN THE MATTER OF AN ARBITRATION F ;..< ...JI...IC t: ERVICE Under ~ P f.,p:,:.{':AL BOARDS ~ L \. . ~ ~,- THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT 'BOARD BETWEEN OPSEU (Dale) Grievor - and - ! ~he Crown in Right of ontario (Ministry of Natural Resources) Employer BEFORE: A. Barrett Vice-Chairperson P.. Klym Member J. Campbell Member FOR THE .G Leeb GRIEVOR Grievance Officer ontario Public Service Employees Union FOR THE S. Patterson EMPLOYER Counsel Legal Services Branch Management Board Secretarjat i HEARING February 16, 1995 - ~--- - \ \ ~ o E CIS ION -- - ~ ~ ::i_, This grievance ari~es out of an earlier de~ision of this panel titled OPSEU (Union Grievance) and The Crown in Riaht of Ontario (Ministry of Natural Resources), GSB #,2181/90. In that decision we interpreted a Memorandum of Settlement between th~ parties which governed ~he rol~-over of seasonal positions and the incumbents of those posit~ons into th~ classified service In that decision we stated at page 3 ~ ~ < "There are still 411 claims outstanding which the union has categorized into groups based on employment profiles and histories The parties have not agreed on the precise make-up of anyone group, nor therefore have the .individual grievors agreed to be bound by the decision on the policy grievance. It is agreed that we remain seized of all 411 individual cases covered by the union policy grievance, but not the individual grievances themselves, which have been adjourned sine die awaiting the outcome of the policy grievance." Ms Dale was one of the 411 individual cases covered by the union policy grievance, but she did ,not have an individual grievance outstanding until after the release of our decision in February, 1993 When she saw that her position was not to be rolled over pursuant to the decision, she filed her individual grievance. I At the hearing, we reserved on the Employer's timeliness and res iudicata preliminary obj-ections and heard the merits of the \ case This case must fail on its merits based on our earlier reasoning in the union grievance. There we found at page 7 ~ \ 2 " . '. ;... ~~ " Thus we conclude that a fair and reasonable interpretation of the Memorandum, in accordance with its purpose and intent, is to provide that, all incumbents of a 43 out of 52-week position, who alone have held the position during the year preqeding or encompassinq the settlement, should have the benefit of paragraph 2 of the Memorandum " At the time of the settlement On June 13, 1991, Ms Dale was "between contracts" but she had recall rights to the job, so in one ~ ~ sense she could be described as a "current incumbent" However, in the 52 weeks preceding-the settlement, she did not work 43 weeks ~. she worked 37 weeks In the 52-week period following the settlement, she also worked 37 weeks. Paragraph 8 of the Memorandum of Settlement states: "The Union agrees that the positions below 43 w~eks per year are properly characterized as seasonal in nature " It was argued by the Union in this case that the phrase "current incumbent" used in the Memorandum of S~ttlement should include people who were not working at the time of the settlement . but who had recall rights to a seasonal job. If they had recall I rights then they should be considered incumbents throughout their hiatus periods between contracts and be given credit for those hiatus weeks when computing the 43 weeks required for a roll-over. Employer counsel quite properly pointed out that if we gavel i. I' effect to that interpretation, then a seasonal employee who had \ worked only nine or so weeks in a given year in a position to which she had recall rights would be entitled to a roll-over This was clearly not the purpose or intent of the settlement ( 3 . I ,. ~" ~.\ . - In determining that this grievance must fail on its merits, ) we are not inclined to 'analyze the timeliness and res judicata _. argumentsr.aised by the 'Employer- \,. i Dated at Toronto this 27th day of March, 1995 .du~~ -~ A Barrett, Vice-Chairperson ~~M . Ca pbell, Member .- p 1t0/l~ ,~ P Klym, Member. \ ;;;. r....' J