Loading...
HomeMy WebLinkAbout1995-0781.Kloss.96-11-05 Decision - OI'fTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'OI'fTARIO 1111 GRIEVANCE COMMISSION DE " SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACS/MILE/TELECOPIE (416) 326-1396 GSB # 781/95 OPSEU # 95C952 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Koss) Grievor - and - The Crown in Right of ontario (Ministry of Health) Employer BEFORE L Mikus Vice-Chairperson FOR THE J Gilbert GRIEVOR Grievance Officer ontario Public Services Employees Union FOR THE P Toop EMPLOYER Policy Advisor Employee Relations Board Management Board Secretariat HEARING October 15, 1996 ~.c ~ '- The gnevor, Judy Koss, alleges that the Employer has Incorrectly calculated her contInUOUS service date The partIes proceeded by way of the folloWIng agreed Statement of Fact IN THE MATTER OF AN EXPEDITED ARBITRATION BETWEEN O.P S.E.U (KOSS) AND THE CROWN IN THE RIGHT OF ONTARIO (MINISTRY OF HEALTH) OPSEU # 95C952 The parties agree to the following as the Agreed Statement of Facts as articulated in ArtIcle 27 18 of the Collective Agreement Without prejudice and without precedent to any other matter 1) The Grievor, Ms. Judy Koss, is a Recreationist, classified, at the Instructor 2 RecreatIOn and Crafts. She is employed by the Ministry of Health at the Lakehead Psycluatnc Hospital. 2) The Gnevor commenced her employment With tlus Employer on April 02, 1984 as a part-time unclassIfied employee employed for 24 hours per week. 3) The grievor remained m tlus position and status until January 20, 1985 From January 21, 1985 to May 20, 1985, the Gnevor was employed In a full time unclassIfied pOSItIon workmg 40 hours per week. 4) From May 21, 1985 to January 12, 1986, the Gnevor was employed as a part time unclassIfied employee workIng 24 hours per week. 5) From January 13, 1986 to November 22, 1987, she was employed as a full time unclassIfied employee workIng 40 hours per week. 6) The pOSItIons the Grievor occupIed throughout were substantIally sunilar 7) On November 23, 1987, after being successful In a competition, the Gnevor was appointed to a Regular Part Time ClassIfied pOSItIon workIng 20 hours per week. The relevant artIcle of the collective agreement In 1 - 2 place at the tIme is attached. 8) The Gnevor remamed as a classIfied employee until she was appointed to the full time classIfied staff on January 1, 1990 The relevant artIcle of the collectIve agreement IS attached as appendIx B 9) The Employer calculated the Gnevor's contmuous ServIce Date as December 11, 1988, gIving her no credit for any tIme worked as an unclassIfied employee 10) The partIes agree that the Grievor has "unbroken servIce" from April 02, 1984 as defined m ArtIcle 25 1 of the collectIve agreement. 11) The partIes agree that the sectIOn 6 of RegulatIon 881 to the Public Service Act was amended to include Group 4 effective April, 1989 The sectIons of the collectIve agreement referred to in the Agreed Statement of Fact are as follows ARTICLE 25 - SENIORITY (LENGm OF SERVICE) 251 An employee s length of contmuous servIce will accumulate upon completion of a probationary period of not more than one (1) year and shall commence: (a) from the date of appomtment to the ClassIfied ServIce for those employees wIth no pnor service m the Ontano Pubhc ServIce: or (b) from the date on wluch an employee commences a period ofWlbroken, full tune servIce in the publIc servIce immediately pnor to appomtment to the ClassIfied ServIce: or @ for a regular part-time civil servant, from January 1, 1984 or from the date on which he commenced a penod ofWlbroken, part-tune service in the publIc servIce, unmediately prior to appomtment to a regular part-tlme pOSItion m the CIvil servIce, wluchever IS later 'Unbroken servIce IS that which IS not mterrupted by separation from the publIc servIce: 'full-tune IS contmuous employment as set out in the hours of work schedules for the appropnate classIfications: and "part-tune" IS contmuous employment m accordance With the hours of work specified m ArtIcle 61 1 25.2 NotwIthstanding Article 25 1 where a regular part-tune CIvil servant withm the meanmg of Part C of the Collective Agreement becomes a full-tune CIVil servant covered by Parts A (Workmg CondItions) and B (Employee Benefits) of the Agreement, any servIce as a regular part-tune CIVil servant wmch forms part ofms regular part-time servIce m the classIfied servIce shall be calculated accordmg to the followmg formula. Weeldy Hours of Work As a Regular Part-time Years of ContInuous ServIce CIvil Servant X AB a Part-time CIvil Servant --- ------------ - - -- ------------ po----- - 3 Full-time hours of work for class (weekly) Changes m the employee s weekly hours of work shall be taken into account. Example - weekly hours of work as a regular part-tune civil servant = 6 years at 20 hours per week, and 2.5 years at 16 hOlll"S per week. - Full-tune hours of work for class (weekly) = 40 (Schedule 4) - Seniority (Length of Contmuous Service) on becoming a full-time civil servant = (20 x 6 years) + (16 x 2.5 years) __e. ---- 40 40 = 3 years + 1 year = 4 years 25.3 Where an employee has been released in accordance with .ArtIcle 24 (Job Secunty) and rehired wlthm two (2) years, the period of absence shall not be computed in detennmmg the length of continuous service. However, periods of continuous service before and after such absence shall be considered continuous and are included in deternumng the length of contmuous service. 254 Continuous service shall be deemed to have tenmnated if: (a) an employee resigns or retires; or (b) an employee IS dismissed unless such dlsffilssalIs reversed through the gnevance procedure; or @ an employee is absent WIthout leave m excess of ten (10) consecutive workmg days: or (d) an employee is released m accordance WIth ArtIcle 24 (Job Security) and remams released for more than two (2) years. In Its argument the Umon proVided the Board with the follOWIng chart to c1anfY the work history of the grievor ~- - 4 FROM TO HRS/WK NOTES # April 02, 1984 January 20 1985 24 unclasswed 1 January 21 1985 May 20 1985 40 unclasswed 2 May 21 1985 January 12, 1986 24 unclasswed 3 January 13 1986 November 22, 1987 40 unclasswed 4 November 23 1987 December 31, 1989 20 classwed 5 January 01, 1990 present 40 classified 6 There was some dispute at the commencement of the heanng concerning the applicable collectIve agreement but it was agreed that the language at Issue remaIned unchanged throughout the penod at Issue. The grievance challenges the Employer's calculatlOn of the grievor's seruority on two grounds, namely, the denial of credlt for servIce In the unclassified servIce before November 23, 1987 and the calculatlOn of her semonty when she transferred from regular part-tlme to full-tlme. The U mon argued that the decIsion not to credit her Wlth any semonty for her unclassified sefVlce was unfarr and the result of an absurd applicatIon of the collective agreement. It took the posItlOn that the gnevor's servlce was unbroken from her date of rure In 1984 The Employer however, when calculatIng her seniority upon her transfer to the classIfied servlce, has treated her as if she began work on November 23, 1987, when she became a classIfied employee. The reference to part-time and full-time sefVlce In ArtIcle 25 l(a) and (b) should be mterpreted to be ffilrumum reqUlrements Otherwlse, argued the Dillon, an unclassIfied part-tIme employee who - -- 5 worked enough overtime to equate to full-time hours would, accordmg to the Employer's method of calculatIon, not be eligible for credit for her past servIce when she was appomted to the classified part-tIme service because she worked m excess of the hours defined for part-tIme employees. Obviously, that cannot be what the partIes mtended. The gnevor satisfied the reqUIrements of artIcle 25 because she had unbroken service from April of 1984 to the date of her appomtment to the classIfied servIce and she should receive credit for all of that service. In the alternatIve, the Uruon took the position that the gnevor had been Improperly appomted to the unclassified service on January 13, 1986, the period of time immediately pnor to her appointment to the classified servIce. It referred the Board to the decisIOn of the Mitchnick Board in the case of Beresford and the Ministry of Government Services (November 12, 1987), GSB # 1429/86 In that case, the gnevor challenged her appomtment to an unclassrfied posItion on the grounds that It did not comply with the requirements of the Public Service Act, specIfically RegulatIon 881(6) whtch proVIded that: 6.(1) The unclassIfied servIce consIsts of employees who are employed under rnchvldual contracts rn wluch the terms of employment are set out and IS dlVlded into, (a) Group I consIstrng of employees who are employed, (I) on a project of non-recumng kind (ii) rn a professIOnal or other SpecIal capaCIty, (ili) on a temporary work assignment arranged by the cormmSSlon rn accordance WIth ItS program providing temporary help (iv) for fewer than fourteen hours per week or fewer than rune full days rn four consecutIve weeks or on an ilTegular basIs, (v) dunng their regular school, college or umverslty vacatIon penod or under a co-operatIve educational training program. (b) Group 2, conslstrng of employees who are employed on a project of a recumng ,...- - 6 kmd, (1) for fewer than twelve consecutive months and for fewer than, (A) 36 l/4 hours per week where the posItion, ilfilled by a civil servant, would be classified as a position requiring 36-1/4 hours of work per week, (B) 40 hours per week where the posItion, ilfilled by a civil servant, would be classified as a posItion requmng 40 hours of work per week, (ii) for fewer than eight consecutive weeks per year where the contract of the employee provides that the employee IS to work either 36-1/4 hours per week or 40 hours per week; (c) Group 3 consisting of employees appointed on a seasonal basis for a period of at least eIght consecutive weeks but less than twelve consecutive months to an annually recwnng position where the contract proVides that the employee IS to work eIther 36- 1/4 hours per week or 40 hours per week. The Board m that case found that the groups listed In the Regulation, while covering a broad range of situations, were nevertheless "exhaustIve" and that an appoIntment outside of those three groups would require the employer to prove that the appointment at Issue did m fact fall within the specified categones. Based on the facts before it the Board found that the grievor's appoIntment dId not fit withIn the groups defined In the Regulations and that the gnevor's appoIntment was therefore Improper and unauthonzed. That decIsion was followed m the case ofCanete and the Ministry of Financial Services (June 27, 1991), GSB # 2192/90 wherein it was detennmed that an employee who was employed on a full-time basiS but did not fit into any of the groups set out in the Regulations had been Improperly appointed to her posItlOn. That decIsIon was upheld by the DIVISIOnal Court (November 26, 1990), and remaIned the law until - -- 7 April of 1989 when Regulation 881 was amended to add a fourth category, namely' (iv) for fewer than folUteen hours per week or fewer than nine full days in fmrr consecutIve weeks or on an irregular or on-call basis, The Uruon relied on the case of Kuzior and Ministry of Health (January 7, 1994), GSB # 2749/92 The employer in that case was also the Lakehead Psychiatnc Hospital. The gnevor had been employed as an unclassified Cleaner 2 for 24 hours per week from June 1, 1984 to January 1, 1986, at which time she was appomted to the classified service as a regular part-time Cleaner 2 working 16 hours per week. When a full-tIme unclassIfied pOSItion as a Cleaner 2 was vacated, the grievor asked that her hours of work be mcreased. The Employer refused and, mstead, offered her the full-time unclassified position on the conditIOn that she resign her clasSIfied part-time pOSItion. The unclassIfied pOSItion was at the same facility and involved the same work as the classified part-time positIon she vacated. The gnevor worked in that unclassified posItIon from December 7, 1988 until May 29, 1989, at whIch tune she was appomted to the classified full-time servIce. Her seruonty date was determmed to be December 7, 1988 The Board found that the grievor dId not fit mto any of the three groups defined m Regulation 881(6) m that the posItIOn was not of a temporary or non- recumng nature, was not of a seasonal nature and entailed the same work she had performed as a regular part-tnne employee. Her appointment was, therefore, improper The board refused to allow the employer to rely on what It termed a "resIgnatIon extracted from the gnevor as a condItIOn of an appomtment to the unclasSIfied service which was Improper" The Board dIrected the employer to credit the gnevor With seruonty as uthere had been no break m servIce thereby entItlmg her to credIt for her part-tIme servIce under artIcle 25 of the collectIve agreement. With respect the questIon of the appropnate credit for part-tIme servIce, the Uruon took the pc,sItIOn - 8 that once the gnevor was appomted to a part-time classified position, her seruonty began to accrue. When she transferred to a classIfied full-time position, she should have been credited wIth 20 months semority on a pro-rated basIs. The Union also argued that seruority IS one of the most significant benefits acmeved through collectIve bargaIning and It requires the clearest of language to depnve an employee of that benefit. In tIns collective agreement, the parties have defined the circumstances under wInch senionty will be lost and the grievor does not fit mto any of those categones. She worked contmuously from 1984 and is entItled to be gIven credIt for that service. Mr Percy Toop, counsel for the Ministry, took the positIOn that the gnevor's seruonty had been correctly calculated according to the terms of the collectIve agreement. He referred the Board to sectIon 27 16 of the collectIve agreement wInch prohibits a board of arbItration or an arbItrator from altenng, amending or enlargmg on the terms of the collective agreement. He contended that It is the duty of this board to mterpret the collectIve agreement before It to gIve effect to the parties' intentIOns The Employer asserted that there IS no magic to the calculation of an employee's semonty It IS based on the formula agreed to by the partIes. It is sImply the rankmg of one employee over another employee It IS not a matter of faIrness because what IS faIr to one employee ffilght be unfaIr to another Indeed, whenever seruonty lIsts are amended at the request of one employee, another employee IS adversely affected. ,......-- -- 9 The Employer subnutted that he gnevor's sernonty must be determmed on the basIs of the collectIve agreement, specifically article 25 There is a clear logic to the formulae in artIcle 25 The crediting of sernonty IS based on the status of an employee at the tIme of transfer In order for this gnevance to succeed, the gnevor must satIsfy this Board that she fits wItmn the situatIOns set out m that artIcle. From her work record, it IS clear she does not. It was the Employer's positIOn that article 25, m effect, sets up a firewall agamst the unlinuted accumulation of senionty A change in status creates that firewall so that If an employee transfers from full-tIme to part-time or from part-time to full-tIme, her status at the time of transfer will determme her accumulated sernonty SectIon 25 1(b) states that when an employee transfers to full- tune classIfied servIce, she is entItled to credit for her full-time unclassified service. Section 25 1 (c) states that when an employee transfers to regular part-tIme, her sernonty will mclude ruslher part-tIme unclassIfied servIce. It IS clear that m those CIrcumstances, m order to be credIted WIth past servIce, the employee must transfer to a posItion of the same status. SectIOn 25.2 sets up a specIfic exceptIon to that rule by allowmg the mcluslOn of regular part-tIme classIfied servIce m the calculatIon of sernonty on transfer to full-tIme classified servIce based on the pro-rated formula mcluded. The Employer took the positIOn that tms IS not the first tIme tms proVIsIon has been before a board of arbitratIOn. It referred the Board to the case of Ball and the Ministry of Transportation (August 10, 1988) GSB # 1657/87 That case Involved an argument, under vIrtually the same -- - 10 language as the mstant 25 1 That case, argued the Employer, stands for the propoSItIon that not all tIme spent In an unclassIfied pOSItIon will be credited on transfer to the classified servIce, that to obtaIn credit for unclassIfied servIce, an employee must fit wItmn the language of sectIOn 25, that consistency IS of the utmost Importance in interpretIng thIS language and that the words of the collectIve agreement must govern, notwIthstandmg arguments of fairness. That case also illustrates the operatIon of artIcle 25 2 In It the partIes have agreed that If the gnevor had become a member of the part-tIme classIfied servIce before her transfer to full-time classIfied service, she would have been entItled to credit on a pro-rated basIs for her regular part-tIme servIce. The next case relied on by the Employer was Parent and Ministry of Health (March 7, 1990), GSB # 1207/89 In that case, when the gnevor transferred from a Go-Temp posItIOn to a full-tIme classIfied posItIOn, she was credIted with the weeks she had worked full-tIme hours mllnedIately before her transfer but not for any weeks where she worked less than full-tIme hours. The Umon conceded m that case that the collectIve agreement dId not oblige the employer to credIt the grievor With any semonty as a Go-Temp but based theIr argument on estoppel. The gnevance failed based on the board's InterpretatIon of artIcle 25 Day and Ministry of Community and Social Services (April 19, 1990), GSB # 1384/89, Involved a claIm by the gnevor for severance pay based on a seruonty date that should have Included credIt for contmuous servIce from ms date ofhrre m 1984 and all of the succeSSIve contracts of employment ~- 11 he entered 1Oto until his transfer to part-time classified service In mterpretmg "cont1Ouous servIce" 10 article 25 1 (c), the board found that the grievor's date of continuous servIce began on the date on wmch he commenced a penod of unbroken seIVlce as a part-tIme pubhc servant, which 10cluded only the contract of employment immediately pnor to ms appomtment to the classIfied seIVlce. The board commented on the fact that ItS deCISIon revealed the "gaps 10 protectIon and lack of lOgIC and fairness 10 ArtIcle 25 1", but concluded that Its 1OterpretatIOn was consistent with what the partIes intended. The case ofPitfield and Ministry ofColTectional Services (December 14, 1992), GSB # 2564/91, 224/92, 277/92 and 424/92, also involved an 1Oterpretation of artIcle 25 1 The gnevor had been employed on a senes of 10dIvIdual contracts of employment from March of 1987 until December of 1988, when he was appo1Oted to a full-tIme classIfied posItIOn. His contracts of employment reqUIred him to work "as requIred up to 40 hours per week" The gnevor was scheduled for available work seven days to two weeks 10 advance and worked an average of 32-40 hours per week. The week unmediately before rus appo1Otment he worked 32 hours. The board found that he had failed to meet the threshold of full-tIme employment unmediately prior to ms appo1Otment and therefore he was not entItled to semonty for rus part-tIme servIce. The board in that case stated that the draftIng of the collectIve agreement Involved the "drawmg ofhnes" and that, In artIcle 25 1, the hne was clearly "a penod of unbroken, full-tIme servIce m the pubhc servIce, nnmedlately pnor to appoIntment to the ClassIfied Service" In the cases of Beard and Ministry of Community and Social Services (August 3, 1993), GSB -" 12 # 3019/92 Morton and Ministry of Correctional Services (June 16, 1993), GSB # 2520/91, the boards came to smular mterpretatIOns of artIcle 25 1 With respect to the Union's alternative argument that the gnevor had been Improperly appomted to the unclassIfied servIce, the Employer took the position that If Beresford was ever the law, It IS no longer the case, partIcularly after recent amendments to the Public Service Act and ItS Regulations The Act was amended as follows 8.1 (1) An mdlvidualls not considered to be a public servant unless he or she has been expressly appointed as such by the Conumssion or by the Lieutenant Governor in Council on the certificate of the CommiSSIOn. (2) An indIvidual IS not consIdered to be a public servant unlt;ss he or she has been expressly appointed as such by the Lieutenant Governor m Council, the Conumssion, a minister or a deSIgnee of a minister (3) An mdlvidual who is employed in the servIce of the Crown IS not conSIdered to be a Crown employee unless the indIVIdual has been expressly appointed as such by the Lieutenant Governor m Council, the Conumssion or a numster (10) In the absence of an express appomtment of an indlVldual as a civil servant, pubhc servant or Crown employee, the mdivldual s appomtment shall not be mferred solely from the clfcwnstances of lus or her appointment. (11) Tlus section is deemed to have come mto force on the 18th day of December 1991 1993 c.19,sl(2). RegulatIon 881 (6) was amended to mclude a fourth category as follows 6 l(d) Group 4 COnsIstIng of employees, (1) who are appomted pursuant to sectIon 8 of the Act, whether or not the dutIes performed by them are, or are similar to, dutIes performed by Civil servants, and (ii) who are not employees that belong to Group 1,2 or 3 The Employer took the pOSItIon that the LegIslature of Ontano effectively removed any baSIS for a functIOnal argument concerrung classIficatIOns. It has clearly stated that the status of an employee / .- 13 can no longer be mferred by the CIrcumstances of his employment but must be based on an express appomtment by the appropriate level of government. More sIgmficant were Bill 7 Part 11 amendments to the Crown Employees Collective Bargaining Act, 1995 which dealt WIth tms very Issue. It provIded as follows 52 (1) A proVlsion in an agreement entered mto that provides for the determmation by an arbitrator, a board of arbitration or another tribunal of any of the following matters is void: 1 A classificatiOn system of employees, including creating a new classification system or amending an eXisting classification system. 2. The classmcauon of an employee, including changing an employee s classmcation. (2) Subsec1lon (l) applies to agreements entered mto before or after the date on wluch the Labour Relations and Employment Statute Law Amendment Act 1995 receives Royal Assent. The cases of Singh and the Ministry of the Attorney General (January 21,1992), GSB # 333/91, Parry and the Ministry of Financial Services (October 16, 1991), GSB # 237/91 and Porter and Ministry of Skills Development (November 12, 1991), GSB # 428/90, 1640/90 and 1841/90, were all decided after the Beresford deCIsion and after the amendments to the Regulation produced above. The boards in those cases expressed doubt on the correctness of the Beresford decIsion and came to the conclusIOn that sectIon 8 of the Act, read together wIth RegulatIOn 881(6), penrutted the government to appomt any employee to the unclassIfied servIce provIded the first appomtment was for less than one year Those declSlons were upheld by the DiVISIonal Court and constItute the govermng Junsprudence respectIng this Issue. With respect to the Uruon's argument that this Board should be persuaded to allow the gnevance on the grounds of socIal pollcy, the Employer took the pOSItIon that this Board had no JunsdICtIOn to ---- .- 14 decIde socIal polIcy and, In any event, the best social pohcy this Board should have regard to IS to give effect to the provIsIons of the collective agreement and the IntentIons of the parties. DECISION It IS tnte to state that senionty is one of the pnmary concerns of the bargairnng urnt members. That has never been more ObVIOUS than today when public sector employees are being renunded constantly that several thousand of theIr jobs are to be ehnunated in the very near future. One's place on the senionty list can mean the difference between haVIng a job or not haVIng a job GlVen ItS importance, it should reqUIre the clearest oflanguage to persuade an arbItrator to cause the loss of one's sernonty That clear language is present In the collectIve agreement before me. The partIes have defined what semority IS to mean In the context of tms collectIve agreement. Further to that, the partIes have defined when seruonty IS to be credited for past servIce, how It IS to be calculated upon transfer from one classificatIOn to another and how It IS to be lost. Specifically, In artIcle 25, they have set out three SItuations in wmch sernority will be accumulated. From those SItuatIons it IS clear that the partIes did not Intend to credIt unclassified employees wIth semonty unless or until they were appoInted to the classIfied sefVlce. Therefore, while the grievor worked In unclassIfied posItIOns she dId not, accordmg to the collectIve agreement, accumulate any sernonty Tms IS not a SItuatIon where an employee can lose her semonty She cannot lose what she never had. The Issue IS, m the CIrcumstances of tms case, when and to what degree the gnevor IS to be credIted wIth past servIce. - - 15 SubsectIon 25 (a) states that semonty will accumulate from the date ofillre In the classIfied service for all new employees. Clearly the grievor was not a new employee and tills subsection has no applIcatIOn to the Instant gnevance. Subsection 25 (b) was Intended to credit employees with semonty from the date that employee commenced a penod of unbroken full-time servIce immediately prior to the appoIntment to the classified service. The reference to the appointment to the classIfied sefYlce IS not restncted and therefore must apply to an appomtment to the part-time or full-time classified servIce. OtherwIse the partIes would have stated otherwise, as they have In subsection SS. 25 (c) In this case, the grievor was workIng In a full-time unclassIfied pOSItIon when she was appoInted to a part-time classIfied pOSItion. That IS to say, she was workIng "a period of unbroken, full-tlme servIce m the public sefYlce unmediately prior to" her appoIntment to the part-time classIfied posItion. SInce the partIes dId not specifically lurut the creditIng of semonty m these CIrcumstances to an appoIntment to the full-time classIfied sefYlce, the only conclUSIOn to be drawn is that once an employee IS appointed to any classIfied pOSItion, all full-time unclassified service Immediately pnor to her appomtment is to be Included In the calculation of her semonty In the Instant case, the gnevor began her last penod of unbroken full-time unclassIfied servIce on January 13, 1986 She contInued m that capacIty until November 22, 1989 Immediately thereafter, she was appoInted to a part-tIme classIfied pOSItIOn. At that time she was entitled to receIve credIt for semonty datIng back to the commencement of her full-time employment, namely January 13, 1986 The cases relIed on by the Employer are dIstmguIshable In the Pitfield, Morton and Beard cases - ,- --- 16 (supra), the gnevances failed because the gnevors did not work In a full-tIme capacIty pnor to theIr appointment to the classIfied semce. In the Ball case (supra), the gnevor had been a part-time cIvil servant for several years when she was appointed to a full-time classIfied positIon. Her seruority commenced on the date she became classified. The Issue in that case was whether she should receIVe credIt for her part-time servIce. Her claim was founded on articles 25 @ and 25.2 of the collectIVe agreements. This grievance concerns a claim under artIcle 25(b) The Day case (supra), similarly concerned a claim for credit for seniority for a unbroken series of part-time and full-time contracts. Because the grievor's part-time service was interrupted by full-time service at times, he was only entitled to credit for the part-time servIce immediately prior to his appointment to the classified servIce. The thrrd sItuatIon addressed In artIcle 25(a) and 25.2 IS credIt for and the calculatIon of seruonty for a regular part-tnne civil servant commenced a penod of unbroken part-time servIce Immediately pnor to the appointment to a regular part-tIme pOSItion. The Umon took the pOSItIon that the gnevor's servIce was unbroken from 1984 to 1987 and therefore, "immedIately pnor to" should be read to Include all of the preVIOUS part-tIme service, providing that servIce IS unbroken. If! were to read the language In the manner suggested by the Uruon, I would, In effect, be reading out the word "Immediately" m artIcle 25 Presumably, the partIes, In drafting the language, Intended that word to hrmt the CIrcumstances where seruonty was to be credIted for past servIce. OtherwIse they would have ormtted that word and the Uruon's - 17 mterpretatIon would prevail. For that reason, the grievor IS not entitled to credit for seniority for the periods of time she worked as a part-time unclassified employee before January 13, 1986, smce none of them were worked llnmediately pnor to her appomtment to the classIfied regular part-time position. What she is entitled to IS credit for her classified regular part-tIme service, on a pro-rata basis, upon her transfer from regular part-time to full-time classified servIce. While that may seem unfair to the grievor, that is what the parties have agreed to and my jurisdictlOn IS lirruted to mterpreting and applying the language of the collective agreement to gIve effect to their agreement. As an alternative argument, the Umon took the positIon that the gnevor had been unproperly appomted to the classIfied service on January 13, 1996, in that she was performing the same work as the classified employees m the same classIficatlOn. It is clear by the amendments to the Public Service Act, its Regulations and the Crown Employees Collective Bargaining Act that the government meant to broaden ItS power to make appointments to the unclassIfied servIce. The cases decided after those amendments have given effect to those amendments. The Kuzior case rehed on by the Dmon IS distmguIshable on the grounds that the arbItrator refused to allow the employer to rely on what the Board consIdered a forced resignatIon. The amendments to the Crown Employees Collective Bargaining Act apply retroactIvely to the appoIntment of the gnevor to the unclaSSIfied servIce m 1984 It prohibItS me from makmg any determInatlOn that would have the effect of changIng the her classificatlOn. - - 18 In summary, the grievor's senionty date IS to be adjusted to mclude her full-tIme unclassified service from January 13, 1986 as well as a pro-ration of her part-time servIce from November 23, 1987 to December 21, 1989 based on the formula set out m article 25 2. I will remaIn seized m the event the parties have difficulties Implementmg tlus award. Dated this 5th day of November, 1996 Loretta Mikus Vice-Chair Dated this 1st day of November, 1996 4 ~ Loretta Mikus Vice-Chair