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Home My WebLink About1994-0087.JONES95_11_08 , ONTARIO EMPLOYES DE LA COURONNE ~~V\ CROWN EMPLOYEES DE L'ONTARIO V'. 1111 GRIEVANCE CPMMISSION DE ~ 0\0 Y ~~)-{' SETTLEMENT REGLEMENT BOARD DES GRIEFS ~().e 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO M5G lZ8 TELEPHONE/TELEPHONE (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) MSG IZ8 FACSIMILE /TELECOPIE (416) 326-1396 GSB # 87/94 OPSEU # 94A529 IN THE HATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Jones) Grievor - and - The Crown in Right of ontario (Ministry of Correctional Services) Employer BEFORE N Backhouse Vice-Chairperson FOR THE L Yearwood GRIEVOR Grievance Officer - ontario Public Service Employees Union FOR THE T Cocks EMPLOYER Grievance Administration Officer Ministry of the Solicitor General & Correctional Services HEARING October 19, 1995 ~ The Issue The Gflevor alleges that the Employer has breached Article 47 l(b) of the Collective Agreement by faIlIllg to gIve hIm one and two- thlfds days per month vacatIOn credit Relevant Provisions The folloWIng are the relevant provIsIOns III the Collective Agreement " Article 25 . Seniority (Length of Continuous Service) 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 Ontano PublIc ServIce, or (b) from the date on WhICh an employee commences a penod of unbroken, full-time serVIce In the publIc serVIce, immediately pnor to appomtment to the ClassIfied ServIce, or (c) for a regular part-tIme CIVIl servant, from January 1, 1984 or from the date on which he commenced a penod of unbroken, part-time service In the publIc serVIce, immediately pnor to appoIlltment to a regular part-time posItion III the cIvIl serVIce, whIchever IS later "Unbroken servIce" IS that WhiCh IS not Interrupted by separatIOn from the publIc serVice "full-time" IS contmuous employment as set out In the hours of work schedules for the appropnate classifIcatIOns, and "part-tIme" IS contInUOUS employment III accordance with the hours of work specified III ArtIcle 61 1 3 25 4 ContInuous service shall be deemed to have termInated If (a) an employee resigns or retlfes, " " Article 47 - Vaealions and Vaealion Credits 47 I Effective January I , 1992, an employee shall earn vacatIOn credits at the followmg rates (b) One and two-thuds (1-2/3) days per month after eight (8) years of contmuous serVice, " The Faets The parties entered lllto an agreed Statement of Facts set out below "1 The gnevor is employed by the Mlllistry of the SolicItor General and CorrectIOnal Services as Correctional Officer at the Ottawa-Carleton DetentionCentre 2 The grievor began his employment history with the MInIstry, at the Metro Toronto West DetentIOn Centre on Apnl 28, 1986, as an UnclasSIfied CorrectIOnal Officer The grievor was appolllted to the ClaSSIfied Service at the Metro Toronto West Detention Centre as a CorrectIOnal Officer on May 19, 1986 - 3 The gnevor transferred to the Barne JaIl as ClaSSIfied Correctional Officer on February 13, 1989 ThIS transfer dId not Involve a break m contmuous service 4 Attached as AppendIX "AU ( appendIces not Included here) IS a letter dated July 17, 1989, wntten and SIgned by the gnevor to reSIgn from employment at the Barne JaIl ThIS resignatIOn took effect on July 28, 1989 5 The gnevor commenced employment at the Ottawa- Carleton DetentIOn Centre on July 31, 1989, as an Unclassified CorrectIOnal Officer Attached as Appendix "B", IS the gnevor's employment contract for the penod July 31, 1989 to October 31, 1989 4 6 The gncvor was appoInted, to the Classlficd ServIce as a CorrectIOnal Officer effectIve Septembcr 25 1989 7 Dunng the eIght (8) week pcnod between July 31, 1989 and Septemer 25, 1989 the gnevor worked the folloWIng number of hours per week Week 1, 31-Jul-89 to 03-Aug-89 32 hours Week 2, 04-Aug-89 to 10-Aug-89 40 hours Week 3, l1-Aug-89 to 17 -Aug-89 24 hours Week 4, 18-Aug-89 to 24-Aug-89 40 regular hours + 16 overtIme hours Week 5, 25-Aug-89 to 31-Aug-89 40 hours Week 6, o 1-Sep-89 to -07-Sep-89 32 hours Week 7, 08-Sep-89 to 14-Sep-89 40 hours Week 8, 15-Sep-89 to 21-Sep-89 30 1/2 hours" The Grievor testified that in 1989, he wIshed to transfer hIS posItIOn as a C02 from the BarrIe JaIl to the Ottawa-Carlton DetentIOn Centre He discussed thIS with the SuperIntendent and the Deputy Supenntendent III the Barne Jail who pursued the matter on hIS behalf wIth the Supenntendent of the Ottawa JaIl The Gnevor was advIsed that the best way for him to accomplIsh the transfer was to resIgn hIS pOSItIOn In Barne and to take an unclassIfied pOSItIOn III Ottawa The Gnevor testified that he InqUIred speCIfically from the Supenntendent and Deputy - Supenntendent how thIS would affect hIS pensIOn, salary and benefits He was adVIsed that provided he was rehired Into a classified pOSItIOn withIll a year, he would not be negatively affected WIth respect to penSIOn, salary and benefits once he was reclassIfied The GrIevor worked hIS last day III the Barne JaIl on FrIday, July 28, 1989 and commenced work at the Ottawa JaIl on the follOWIng Monday, July 31, 1989 Dunng hIS first week at the Ottawa jail, he was sent on a hIgh profile escort It was not the practIce of the Employer to send unclassIfied staff on escorts at that tIme but because of hIS pnor expenence, he was taken out of the OrIentatIOn four other unclassIfied staff were receIvIllg and asked to do the escort 5 The Gnevor successfully completed his one-year probatIon pe rt od III September, 1990 He had asked and management had recommended that he have the probatIOn penod reduced because of his pnor serVIce but the year expued before he got an answer The Gnevor was not appraIsed every three months dunng the probatIOn penod which IS standard procedure for probatIOnary employees The Gnevor was not sent on the four-phase trammg gIven to new officers Instead m January, 1991, he took the refresher course gIven to classified probatIOn officers every five years The Employer contmued to make pensIOn deductIOns from the Gnevor's paycheque dunng the 2 month period he was unclassified, although at that tIme unclaSSIfied employees dId not contribute to the penSIon plan The Grievor got hIS first penSIOn statement approximately one year after starting at the Ottawa Jail WhIle it ongmally dId not credit him for the tIme worked pnor to Ottawa, the Employer subsequently rectified thIS so that the "penSIOn credit" and "date hued" both reflected the pnor serVIce In September, 1989, when he was rehired into the claSSified serVIce, the Grievor was placed at the bottom of the pay scale The Supenntendent of the Ottawa jaIl acknowledged that the Gnevor had been promIsed that everythIng would return to what It had been once he became reclassIfied but eventually the Gnevor had to file a gnevance The matter was settled at Stage Two The Gnevor receIved a lump sum in regard to the back pay and was restored to the top pay scale Conclusion The Gnevor's testimony was undIsputed that the Employer represented to him that hIS penSIOn, salary and benefits would not be affected if he resIgned and was rehIred into the claSSIfied serVice withm a year ConSIstent WIth the Gnevor's testImony was the way In whIch the Employer treated him with respect to hIS pensIOn and salary In some respects, he was not treated as an unclassIfied employee or probatIOnary 6 employee but as the expenenced officer he wa"l from the time he started to work at the Ottawa jaIl The Employer submits that the Gnevor IS not entitled to receI ve credit for hi s penod of service pnor to Ottawa because Article 25 4(a) deems contmuous service to have termmated If an employee resIgns In my opmIOn, the Gnevor's purported resIgnatIOn was condItIOnal upon the Employer's representatIOn that hIS benefits would not be negatIvely affected once he was reclassIfied The Gnevor relIed upon that representatIOn and cannot be considered to have resIgned under Circumstances where that representation turned out not be accurate AccordIngly, this grIevance IS allowed I find that for the purposes of calculating the Grievor's vacatIOn entitlement, hIS senIority date shall be May 19, 1986 to reflect his servIce from hIS ongmal date of hire DATED at ~oronto, Ontario this 8th day of November, 1995. ?le~ ........ Nancy L Backhouse Vice-Chai.person