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HomeMy WebLinkAbout1995-1354Rivard.98-03-12 Decision ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L"ONTARIO 1111 GRIEVANCE COMMISSION DE , SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 800, TORONTO ON M5G fZ8 TELEPHONE/TELEPHONE (416) 326-1388 100 RUE DUNDAS OUFS T BUREAU 800 TOfVWTO (ON! M5C, 1/8 IAI,SIMllfiT[LECOPIE (416) 326 1396 (J~B #13')4/Y') 13')':; q') 13':;6/')':; 13':;7/()~ \(J2[,l)':; OPSEU # Q')E280-283 Q':;E490 IN THE MATTER OF AN ARBITRATION Under THE CRUWN EMPLO\ EES COLLECTI\ E BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Rivard) Grievor - and - The Crown 10 Right of Ontano (Green s Ambulance Service, Mimstry of Health) Employer BEFORE D J D Leighton v Ice-Chair FOR THE A. Lee GRIEVOR Gnevance Officer Ontano Publ1c Service Employees Umon FOR THE M Contml EMPLOYER Counsel Mathews DlI1sdale &. Clark HEARING May 8 1997 July 2'; 1997 October 24 1997 The Gnevor filed five gnevances with the Board which for ease of reference I will refer to by number The first gnevance, filed August 22, 1995 states GrIcvance I Statement of Gnevance I gneve the Employer's postlllg of a part-time posItIon dated August 14, 1995 as unJust and In contraventIon of the central agreement ratified November 1994 Settlement Desired The Employer to comply wIth the terms of the central agreement and schedule the first available part-tIme ShIfts conslstll1g of forty hours/week. Payment of all lost wages with ll1terest retroactive to ratificatIOn of central agreement The second grIevance also filed August 22, 1995 stated Gnevance 2 Statement of Gnevance I gneve the Employer has failed to recogmze my semonty and re-asslgn me to a full-time, permanent position Settlement Desired Assignment to full-time, permanent positIOn wIth full semonty salary benefits, pensIOn and any overtIme retroactive to the demise of KeIth Bovey (February 199~) Any and all backwages and pensIOn benefits to mclude Interest The third gnevance, also filed on August 22 1995, stated Gnevance 3 I gneve the Employer's letter dated August 14 1995 as the Employer IS failmg to comply with the memorandum of agreement dated January 17 199~ regardmg temporary contract positIOn of Brother Keith Bovey Settlement Desired To be placed III a temporal', contract position III place of Brother KeIth Bovey until such tIme as It IS determmed the full-tune status of thIs positIOn Reimbursement of any lost wages retroactIve from September 4 19c)~ WIth Illterest The fourth gnevance also filed August 22 199':; stated ') - Gnevance 4 Statement of Gnevance 1 gneve the Employer has failed to comply with the terms of the central agreement re ne\\ lentralltem'., as rat died In November 1904 s.~t t lel11~llLl)csl red Employer to llmnedlatelly comply wIth the terms of the central agreement as ratified November 1994 ASSignment to a full-time position WIth full selllonty salary benefits, pensIOn and any overtime retroactive to the demIse of Brother Keith Bovey (February 1995) Any and all back wages and benefits to mclude mterest The fifth grIevance, filed on September 26, 1995 stated Gnevance .;; Statement of Gnevance I gneve the Employer's postmg of a part-time po sItton dated September 19 1995 as unJust and m contraventIOn of the central agreement ratified November 1994 Settlement DeSired Employer to comply WIth the terms of the central agreement and schedule the first avatlable ShIftS conslstmg of forty hours/week. Payment of all lost wages WIth mterest retroactIve to ratlficatton of central agreement The EVidence The facts upon whIch the present matters are to be deCIded are, for the most part, not m dIspute Mr RIvard testIfied that he was hIred by Green's Ambulance ServIce as a part-time ambulance attendant on March 22 1991 On November 1 1991 the Gnevor commenced permanent full-tIme employment as an ambulance attendant On August 1';;' 1993 Mr RIvard was laid off from hIS full-time pOSitIon He commenced part-tIme work beglllnmg August 15 1993 and lastmg untll February 13, 1995 when he began a temporary forty hour/weeI-. contract whIch lasted until August 1995 In August he was laId off agam to a part-tIme pOSitIon and he IS currently stili workmg as a part-tIme ambulance attendant for Green's Part-time \Vorl-. amounts , ) to sIxteen to eIghteen hours per week In eight hour shIfts There IS a combInatIon of call In and scheduled work. The collectIve agreement requIres that the Fmployer post semonty Itsb tWice a year 111 January and July There are separate scmonty Itsts for full-tIme and part-tIme employees Smcc Mr Rivard was lard off from full-tIme status on August] 5, ] 993 and the collective agreement proVIdes that after layoff from full-time status semonty contInues to accumulate for one year, the Gnevor's name was not Included on the full-tIme employees semonty list In January 1995 The Gnevor was appOInted to a temporary full-tIme contract In February of 199') pursuant to a memorandum of agreement sIgned by the partIes on Januarv 17 1995 endorsed as a deCISIon of ArbItrator Knopf The pertment provISIons of the agreement are as follows 11 a Ron RIvard and Pete Weber will be gIven an opportumty to accept a temporary contract pOSItIon to replace KeIth Bovey and ShIrley Beddard until such time as they return to active service or untIl such time as It is determIned that they will not be returning. 11 b The temporary contract pOSItIon WIll be for an average of forty hours per week. RIvard and Weber will be scheduled to such hours In the same way as other full-tIme employees, 11 c The temporary contract pOSItIons will be at the part-tIme wage rate, WIth benefits as appltcable to part-tIme employees RIvard and Weber must accept the offer for temporary contract employment as aforesaid on or before January 23 1995 If accepted, they WIll be scheduled for work. commenCIng WIth the week of February 13 1995 The Gnevor was adVIsed of the contents of the document but not gIven a copy of It at the tIme Mr RIvard responded 111 wntl11g to Green's Ambulance that he would accept the pOSitIOn Mr Weber dId not accept the posItIon Mr Bovey passed away m February of ] 995 There \\as no change or dISCUSSIon regardmg Mr RIvard s assIgnment after tillS happened The Gnevor filed hIS first gnevance obJectl11g to the postIng of a part-tIme pOSitIon on August 14 1995 because he was of the vIew that haVIng been Just laId ofT from a full-tlme ~ posItion to a part-tIme posItIon It was unreasonable to make such a postmg as he was available to do the work. The fifth gne\ ance agall1 ohlect~ to a part-tIme posItIon beIng po<:;ted on ~eptelllber 19 199') when he \\ as a\ adable to do more work At the tlllle of thIs postl11g, he was gettl11g one or two shIfts a week Mr RIvard was of the view that as a laId off fu1l-tlme employee he should have got the first forty hours of scheduled work, or a full-tIme posItIon back He was of the vIew that the Employer recognIzed thIS when he was put mto the temporary contract posItIon m February 1995 Although the Gnevor used the term laid off' to descnbe the end of hIs temporary full-time contract he admItted on cross-exammatlon that It 'Was not a layotf, hIS temporary full-tIme contract came to an end when Ms Beddard returned to work. The second gnevance was filed complammg that the Employer had faded to recogmze hIs semonty and re-asslgn hIm to a full-tIme, permanent posItIon because he thought the Employer had gIven hIm the pnor full-tIme contract poSItIon because Green's recoglllzed that he was a full- tIme laId off employee He thought the posItIon that he receIved pursuant to the memorandum of agreement was because he was a laId off, full-tIme employee Mr RIvard filed the thIrd gnevance when he was laId off from the full-tIme contract posItIon on August 14, 1995 because there had been no decIsIon as to vvhether Mr Bovey s posItIon would be filled permanently Mr RIvard was notIfied on August 14 199') that the temporary contract pOSItIon would end effectIve September 4 1995 He was surpnsed when the positIon ended smce Mr Bovey's posItIon had not been posted 1\1s Beddard who was the person who held the other posItIon noted III the memorandum of agreement returned to \\ork after a Workers' CompensatIon II1JUry 111 June 1995 on a work hardenll1g program and then returned full-tIme m ';eptember .:; Mr RIvard's eVidence 10 cross-exam1Oatlon was that hIs senlonty date for full-tIme was November J, 1991 The Gnevor's semonty date was InitIally earlier than a fellow employee, Matthew Gaudette When !\1r Gaudette \vas laId oO'he gneved and pur,;uant to a <;ett1cl1lent between the Gnevor and the Employer, hI'; hours as a supervIsor were then Includcc/ln the calculatIon of hIs semonty Mr RIvard, as an affected party was notIfied but was not l11\'olved In the settlement of the gnevance Because Mr Gaudette's selllonty was adJusted, Mr Rivard was laId off to part -time III August of 1993 Mr Rivard gneved thiS layoff III August of 1993 but thiS gnevance was abandoned In February of 1994 Mr Bovey had been ofT sIck for some t1l11e and [vIr RIvard filed a gnevance that Mr Bovey s vacant positIOn should be filled t\1r RIvard \vas of the vIew that he should get Mr Bovey's position. ThiS gnevance was ultimately Withdrawn. In January 1995, the full-tIme semonty lIst was posted Without the Gnevor's name and he gneved Its removal ThIS gnevance went to arbitratIon and a deCISIon of Arbitrator Gray was Issued on September 26, 1995 dlsmlsslllg the gnevance Before Arbitrator Gray's deCISIOn was Issued, when the next semonty Itst was posted for full-time employees III July of 1995 Without the Gnevor's name, he gneved agam After the deCISion of ArbItrator Gray came out III September thIS gnevance was Withdrawn With regard to the temporary contract gIven to the Gnevor pursuant to the memorandum of agreement Mr RIvard agreed that the letter sent to him by the Employer on August 14 1995 was not a notIce oflayoff but rather a notice that the temporary contract pOSItIon would be termlllated as of September 4, 1995 The letter notes The completion of the temporary contract pOSItion as a result of the expected return to work of the employee currently off on WCB \\ horn you had been replaclIlg (, In contrast, the Gnevor conceded that the letter of August 6, 1993 did give hlln a layoff notice from full-time status to part-hme The Gnevor further conceded that his letter to the Employer, dated January 2:l 1 C)C)" accepting the temporarv contract position ac; ofTered by the memorandum of agreement clearly recogl1lzed that It was a temporary contract I\1r Rivard was questioned on hiS belIef that he would continue In "Bovey s" pOSItion because It had not been filled The Gnevor admitted wntlng a note to the Employer, dated August 16 1995, In response to the notice that hiS part-time contract would be concluded on September 4 1995 In that note he stated It has come to my attentIOn that my full-time contract positIon has been filled with the person off (Shirley Beddard) which Will subsequently lead to my layoff So this IS my wntten notice that I Will contmue workmg part-time I trust that my avatlabllIty Will be taken care of accord1l1g1y which was submitted on the 15th of August. Thank you Matthew Gaudette, a full-time ambulance attendant with Green's for seven years, also testified He has been actIvely Involved In the Umon and present at certam ERC meetmgs He testtfied that at an ERC meetmg held September 20 1994 the Umon requested clanficatlOn regardIng staffing at Green's The response from the Employer was that there were twelve full- time dnver attendants diVided Into five management positions and seven bargall1lng untt dnvers/attendants Mr Gaudette testified that Mr Bovey went off on Sick leave some time III 1993 and although hiS recollectIon was not clear he belIeved that he died In Feburary of ] C)9~ He agreed that no full-time employee had been selected to replace Mr Bovey He further agreed that no gnevance was filed until August of 1995 that tillS pOSitIon had not been filled When Mike Mornson In dispatch left l1lS full-time pOSition, and the employer did not post the pOSitIOn thlS was not gneved 7 Mr Gaudette testified that he was familiar with the central agreement and he agreed that there was nothmg m the agreement that reqUired a full-time vacancy to be filled as a full-time pOSition f Ie agreed that there \\a~ nothlllg to re"tnet the number of full-time employees to parl- tIme He agreed further that the Ul1lon had trIed to negotIate such a ratio 1I1to the central agreement, but had been unsuccessful Mr John Batty an assIstant manager at Green's since 1989, and preVIOusly employed as an ambulance attendant, testIfied on behalf of the Employer He testIfied that the Gnevor was a full-tllne ambulance attendant untIl August 1993, when he was laId off Mr Batty saId that Mr BO\ e\ who had been laId off 111 1993 had gneved that layoff and the GSB had ordered hlln reinstated as of July 1993 He dId not continue In employment because he was l\1Itlally on SIck leave and then on long-term dIsabIlIty Mr Batty confirmed the eVIdence of the Gnevor that after Mr RIvard was laId off 111 August of 1993, he gneved, but tl1lS gnevance was ultImately abandoned The Gnevor continued to work part-tIme after August 1993 In February of 1994, the Gflevor filed another gnevance of unJust layoff from full-tIme ThIS gnevance was subsequently WIthdrawn In December of 1994 The Gflevor accepted the offer of the temporary contract pursuant to the memorandum of agreement and started the temporary contract on Feburary 13, 1995 The Gnevor stayed In that posltlOn untIl Ms Beddard came back to work full-tIme The Employer was of the vIew that memorandum of agreement had been satIsfied when Ms Beddard came back to \vork There are about 20 part-tIme employees who work as ambulance attendants for Green s There IS no restflctlon m the central agreement as to the number of part-tllne employees that are permitted In relation to full-time employees There IS no reqUirement to fill full-tllne pOSItions 'I when they are vacated Mr Batty noted that employees m dispatch and ambulance attendants m the fleet are covered by the same central agreement The Ul1lon s Sl!!lII!lSsIOn Ms Lee argued for the Ul1lon that there are three Issues which I must decIde The first IS whether or not Mr Rivard's gnevances, which relate to a claim for Mr Bovey's full-time position, or recall nghts under the central agreement for a laId off full-tIme employee are timely Second, I must deCIde whether or not the memorandum of agreement has been vIolated Tlmd, I must deCIde whether at the tIme of the ratIficatIOn of the memorandum of settlement pertamIng to the resolutIOn of "central Issues" the Gnevor had full-time semonty so as to have recall nghts under the agreement The partIes do not wish me to make an order regardIng remedy The Umon s SubmISSIOn on TimelIness Ms Lee argued on behalf of the Umon that pursuant to memorandum of agreement, Signed January 17 1995, the Gnevor was assIgned to a temporary contract whIch began In February of 1995 and which ended September 4, 1995 Notice of the completIOn of the contract was gIven to the Gnevor on August 14 1995 She argued that the eVIdence from the Gnevor was that he thought he would hold the pOSItIOn until a decIsIOn was made about whether or not the Employer would fill Mr Bovey s pOSItIOn. It was not until August 14 1095 that the Gnevor found out that he wasn't gOIng to keep the pOSItIOn The collective agreement reqUlres that the gnevance be filled wlthm seven days, and the gnevances pertamlng to the above were filed on August 22, 1995 Ms Lee argued further that the Board has the authorIty under Sec48(16) of the OntarIo Labour RelatIOns Act to relieve agamst tIme IJl11lts Smce the Employer has established <J no preJudIce by this minor delay and the nature of the gnevance IS slgmficant, I should wave the tIme limIt. She cIted Metropolitan (] 992) as to the factors I should consIder In extendmg tIme llllll t <; Shc argucclll1 the altcrnatlvc that thc Gncvor s nxall nghts arc a continuIng gnevance and therefore the gnevance timely Thus the Fmployer S objectIon to tll1lCllI1cSS should be dIsregarded The Union's SubmIssIon on Gnevance 3 Ms Lee argued that the memorandum of agreement sIgned January] 7 1995 forms part of the collectIve agreement and therefore the Board can determme whether there has been a vIOlatIOn of the agreement The Union submlts that the Employer has vIOlated SectIon 11 of the agreement The agreement provIded a temporary contract posItIon to replace Mr Bovey and Ms Beddard untIl It IS determmed that they won't be returlllng. The assIgnment was not to a specIfic posltlOn, Withm two weeks of the assIgnment Mr Bovey dIed The Gnevor was not adVIsed that there was a decIsIon regardmg Mr Bovey's posItIon and the eVIdence shows that at no tIme dId the Employer make a decIsIon to fill thIS posItIon wIth a full-tIme employee The UnIon argued that the language of the agreement whIch referred to a determmatlOn that Mr Bovey and Ms Beddard would be or would not be returnmg to work mcludes a determmatlon of what should happen to the posItIon Ms Lee argued further that It was obVIOUS \vlth Mr Bovey's death that he was not returnmg, but at no tllne dId the Employer dlscuss thIS WIth Mr Rlvard The UnIon was of the vIew that the Gnevor only got notIce that he was holdmg Ms Beddard's pOSItIon when notIce that the contract was commg to an end was sent to hun The Ulllon IS of the vIew that the reason the Gnevor got the contract poSltlon pursuant to the memorandum of agreement, slgned January 17 199'; was because he had prevIously been a full-tIme employee Although he worked III between August 1993 and February 1995 as a part-tIme employee, he was stIli on the full-tIme employee list In May of 1994 JheJ).!JJon .~ubmtsslOn on Gnc.val.l~e 2 anej Gnevance 4 In both these gnevances the Gnevor claims that the Employer has faIled to comply WIth the terms of the central agreement and to reassIgn hIm to a full-tIme permanent pOSitIon The Ulllon submItted that there are two Issues that I must deal WIth Ms Lee argued that as a laid off full-tIme employee the Gnevor had recall nghts to Mr Bovey's pOSitIOn Or as a full-tIme employee, he was entitled to the first forty hours of scheduled work Both of these reqUIre that the Gnevor was a full-tIme laId off employee at the tIme of the ratIficatIon of the central agreement III the fall of 1994 Ms Lee argued further that the Gnevor had full-tIme selllonty In the fall of 1994 Then he continued as a full-tIme employee between Feburary 1995 and August 1995 In the temporary contract The Umon's SubmlsslOn Regarding the Job Posting GrIevances. Gnevances 1 & 5 The UnIon argued that the posting of part-tIme posItIons was In VIOlatIOn of the central agreement The postlngs are eVidence that the Employer had avaIlable work to assIgn to a full- tIme employee, or else they would not be seeking more employees for the part-tIme pOSItIOns The avaIlable work, up to forty hours, should have gone to the Gnevor In the Ulllon s submISSIon 11 The Employer's SubmIssIon Counsel for the Employor Mr ContInI, submItted that there are three Issues WhIch 1 must address The first ISSLle IS whether or not I\1r RIvard \vas a full-tIme employee 111 the fall of 1994 at the tIme of the ratdicatlon of the central agreement Thc second ISSUC IS whether or not the Gnevor has any nght to recall to a full-tIme positIon Mr Rivard would hay e to have full-tlllle status to get recall under the central agreement. Counsel submItted that the Gnevor IS not the most semor part-tIme employee The thIrd Issue IS whether or not the Employer has an obligatIOn to fill a full-tIme posltlOn wIth full-tIme employees Counsel submItted that Mr RIvard lost hIS full-tIme status m August of 1994, one year after hIS layoff notice The Gnevor's name was properly removed from the hst pursuant to ArtIcle 14 06(c) of the collectIve agreement whIch provIdes Semonty shall termmate and an employee shall cease to be employed by the company when he (c) IS off work for a contmuous penod of twelve (12) months subJect to the proVIsIons of the Workers' CompensatIon Act, the Human RIghts Code of Ontano and the Employment Standards Act Moreover, m Counsel's submISSIon the Issue ofMr Rivard's full-tIme status after August of 1994 was deCIded by Arbitrator Gray In hIS deCISIon dated September 26, 1995 The Umon argued before ArbItrator Gray That the Gnevor's name should not have been removed from the full-tIme semont'y Itst and that so long as he remaInS a part-tIme employee he should retam the full- tIme semonty he accumulated dunng and for one year after hIS penod of full-tIme employment It argues that no prOVISIOn expressly authonzes termmatmg the full- tIme semonty of an employee who IS still employed albeIt as a part-tIme employee 12 -~_. --- The Employer argued to Arbitrator Gray That It did what Article 14 06( c) reqUires It says that the parties have treated full- time employment as something qUite distinct from part-time employment, and that the Gnevor s nghts with rcspect to full-tllnc SCll10nty and full-time employment after he was laid otTfrom full-tIme employment were no dlfTerent than the" would have been had he not then been gIven part-tIme work For purposes of calculation accumulatIon and retentIOn of full-time semonty the Gnevor was a laid ofT full- time employee from and after August 15, 1993 The Employer says that once the Gnevor has been off full-time work for a continUOUS penod of twelve months, article 14 06(c) reqUired that his full-time semonty terminate and that hIs remaInmg full-time employment status cease Arbitrator Gray deCided that the Employer had acted properly In removlIlg the Gnevor's name from the full-time semonty list at the end of the twelve month period after his layotffrom full-tIme work., In August of 1993 Counsel argued that I should follow Arbitrator Gray's deCISion, either because the Board should make consistent decisions unless there IS mamfest error, or because the Dillon IS estopped from bnngIng the very same Issue to the Board again. Counsel Cited Rasanen v. Rosemount Instruments Ltd. (1994) 17 O,R. (3d) 267 (Ontano Court of Appeal) In support ofl11S argument on Issue estoppel He argued that It IS the same parties and the same Issue which IS bemg brought agam to the Board The ratIOnale behind Issue estoppel IS the need for a final resolutIon of an Issue Therefore, Mr Contini asked me not to deCide thiS Issue agaIn S1I1ce the Gnevor lost hiS full-tIme status 111 August of 1994, he was not a full-tIme employee when the central agreement was ratified 111 the fall of 1994 Without full-time status the Gnevor has no nght to recall under the agreement In addressmg the third Issue In hIS submISSIOn, Counsel argued that the Employer IS under no obltgatlon to fill a full-time pOSItIon With a full-tIme employee Counsel cited ArtIcle 8 02 which states that the Board "shall not have any po\\er to alter or change any of the provIsIons of thiS agreement, nor to gIve any deCISIons 1I1conslstent with the terms and prOVISIons of thIS 1, agreement" He also directed my attentIOn to the broad powers Included m the management's fights clause 10 Article 4 He argued that there was nothmg In the collective agreement that prevented the Employer from filling a full-time vacancy wIth part-tIme employees He noted that the local memorandum of agreement (January 17 19(5) added a prOVISIon to the collective agreement that "The Employer agrees to post avatlable bargammg Ul11t positions for a penod of ten (10) days at the bases of the Employer" There IS no restflctlOn In this language as to what counts as aVaIlable Thus there IS no reqUIrement for Green's to post and fill a full-time vacancy, whIch IS common m other agreements Counsel argued that the language of the memorandum of agreement does not support the Umon's argument that the Gnevor had a fight to stay m the temporary contract pOSItion untt! the Employer decided what would happen to Mr Bovey's pOSitIOn. Counsel argued mter aha that the memorandum of agreement clearly mdlcated that the contract was temporary The memorandum of agreement provided that Mr Rivard be gIven an opportumty to take "a temporary contract pOSitIOn to replace Keith Bovey and ShIrley Beddard until such time as they return to active service or untJl such tIme as It IS determmed that they WIll not be returmng." Counsel argued that It was clear when Mr Bovey died that he would not be returmng He argued that It doesn't matter that there was no determmatlOn by the Employer as to what would happen to Mr Bovey s posItIon Further the Gnevor did not acqUIre full-tIme status by acceptmg thiS temporary full- tIme contract Counsel argued alternatIvely that the Gnevor s complamt that he should have been recalled to Mr Bovey S pOSItIOn full-time work should have been made 1I1 February of 19C)~ when Mr Bovey did and not August of 199~ and was, therefore also untimely He argued that I must be satIsfied \vlth the reason for the delay The Employer could reasonably assume that tIllS Issue 14 had been abandoned gIven the slgmficant number of months in bnnglng forward the gnevance He argued further that a failure to fill a posItIon could be a continuing gnevance, but a gnevance allcg\l1g recall rights IS not a cont\l1u\I1g grievance He argued further III the alternatIve, that Mr Rivard bad filed a gnevance c1alll1lng Mr Bovey's posItIon \11 February 1993 whIch was ultlmately abandoned, and therefore he should be estopped from makmg that claIm here Umon's SubmIssIon In Reply Ms Lee argued m reply that the Ulllon IS not relItlgatmg the Grlevor's removal from the semonty list It IS the Umon' S posItIon, though, that the Grlevor retall1ed tull-tllne status untIl hiS name was removed Therefore, he was st1l1 full-tIme when the central agreement was ratified m the fall of 1994 The UnIOn argued further that they were not clalmmg that the full-tIme positIOn should be posted and filled wIth a full-time employee ThIS IS the subJect matter of a pohcy gnevance which IS not before me The baSIS of Gnevances 1 and 5 IS that the Gnevor has a nght of recall to avaIlable work and therefore part-tIme posItIons should not be posted I':; DeCISIon Havmg carefully consIdered the eVidence and submIssIons of the partIes, I have decided to dIsmISS all five gnevances lor the follO\vltlg reasons In Gnevance 3 Mr Rivard clallnecl that the Employer had breached the memorandum of agreement dated Januarr 17 199'i which forms part of the collectIve agreement between the partlcs Essentially the argument IS that Mr RIvard should be permItted to remain m the temporary contract posItion unttl whIch tllne the Employer decides what to do wIth the positIon, The words of the memorandum of agreement, however, do not support such an mterpretatIOn The language IS clear and the Gnevor recogl1lzed In eVIdence that the posItIon was temporary "untIl such tIme as they return to actIve servIce or until such tlIne as It IS determined that they wtll not be returning." The "they" refers to KeIth Bovey and Shirley Beddard Mr Bovey dIed In February of 1995 It was clear then, obvIOusly, that he would not be returning to work. Ms Beddard returned to work after bemg off on Workers' Compensation m September of 1995 It was at this tune that Mr RIvard ceased workll1g 111 the full-tIme contract pOSItIon. The agreement specIfied that Mr RIvard was to be paId at the part-tIme wage rate There IS Simply no eVidence to support a finding that there has been a vIOlatIOn of the memorandum of agreement dated January 17, 1995 The key Issue to be determmed In Gnevances 2 and 4 IS whether or not the Gnevor IS a laId off full-tIme employee With recall nghts to Mr Bovey's pOSItIOn As a laid off full-tIme employee Mr RIvard would be entItled to the first forty hours of available work I n order to succeed WIth thIs argument the Umon must show that the Gnevor was a full-tIme laId off employee at the tIme of the ratIficatIOn of the centra] agreement In the fall of 1994 It IS the Umon s posItIon that he was a full-ttme employee at that tIme !I, The questIOn ofMr RIvard's status as a full-tIme employee m the fall of 1994 was the very Issue argued before ArbItrator Gray when the Gnevor complamed that his name had been removed from the full-tIme sel1\ont) ItS! In January of 1995 Although the Ul1\on has not framed the gnevance Identically It IS based on the same question, and that IS when the Gnevor ceased to have full-tIme status I am persuaded by the Employer's argument that thIs Board has no Junsdlctlon where the partIes are the same to decIde an Issue whIch has prevIously been decIded by a Gnevance Settlement Board In Rasanen the Court of Appeal set out the cntena for the doctnne of Issue estoppel and Its ratIOnale At ItS sImplest, Issue estoppel IS Intended to preclude rehtlgatlOn of Issues that have been determIned m a pnor proceedIng As stated by Middleton J A III McIntosh v. Parent (1924),55 G.L R. 552 at p 555, [1924] 4 D L R. 420 (C A) Any nght, questton, or fact dIstInctly put III Issue and dIrectly determmed by a court of competent JunsdIctIon as a ground of recovery, or as an answer to a claIm set up, cannot be re-tned III a subsequent SUIt between the same partIes or theIr pnVles, though for a dIfferent cause of actIon. The nght, questIon, or fact, once determmed, must, as between them, be taken to be conclusIvely estabhshed It anses as a doctnnal response to the "tWIn pnnclples that there should be an end to htlgatIon and that the same party shall not be harassed tWIce for the same cause" Carl-ZeIss-StIflung v. Rayner & Keeler Ltd. (No.2), [1967] 1 A C 853 (H L ) at p 946, G Spencer Bower and A.K. Turner, The Doctnne of Res JudIcata, 2nd ed (London Butterworths, 1969) at p 10 see also the reasons of Lord Denl1lng III McIlkenny v. ChIef Constable of West MIdlands Pohce Force, [1980] 2 All E R. 227 (C A.), affirmed on other grounds, [1981] 3 All E R. 727 sub nom. Hunter v. ChIef Constable of West Midlands PolIce Force (H L ) Asa speCIes of estoppel, It IS dIstIngUIshable from, but clearly conceptually related to "cause of actIOn estoppel" or res JudIcata, whIch precludes the bnngIng of an actIon when the same cause of actIon has already been determIned by a court of competent JunsdIctIon Thoday v. Thoday, [1964] 1 All E R. 341 (C A ) at p 352 \7 The proceedmgs before us mvolve Issue estoppel Lord Guest sum man zed the reqUirements of Issue estoppel as follows m Carl-Zelss-Stlftung, supra, at p 935 (1) that the same question has been decIded (2) that the Judicial deCISion whIch IS saId to create the estoppel was final and, (3) that the partIes to the JudicIal decIsIon or their pnvles were the same persons as the partIes to the proceedings In which the estoppel IS raIsed or their pnvles The proper inqUiry In decldmg whether the reqUirements have been met IS whether the question to be decided m these proceedings IS the same as was contested m the earlier proceedmgs and was, moreover, so fundamental to the deCISIon that It could not stand Without the determmatlon of that questIOn Angle v. MIl1lster of National Revenue, [1975] 2 S C R. 248 at pp 254-55, 47 D L R, (3d) 544, per Dickson J Spens v. Inland Revenue Comrs, [1970] 3 All E R. 29~ (Ch Dlv) at p 301 per megarry J , Quotmg Bower and Turner, op Clt at pp 181-82 Although the umon argued that It was not relitlgatmg the removal ofMr Rivard's name from the full-time semonty lIst, Ms Lee submitted that the Gnevor has certam recall nghts, which are dependent upon him haVIng been a full-time employee In the fall of 1994 She argued that Mr Rivard retamed full-time status until hiS name was removed In January 1995 PreVIOusly the umon argued that Mr Rivard's name should not have been removed at all However, the Issue of when the Gnevor stopped accruIng full time semonty was determIned by Arbitrator Gray when he held It follows that the employer acted properly m termmatlng the gnevor's full-time semonty and deletIng hiS name from the full-time semonty list at the end of the 12month penod. AccordIngly, thiS gnevance IS dismissed When Arbitrator Gray found that Mr Rivard had been properly removed from the full-tune semonty list and, In fact ceased to have full-time employee status In August of 1994 he dIsposed of thiS Issue I am satisfied that the reqUirements of Issue estoppel have been met It IS the same questIon, same parties, and Arbitrator Gray s deCISion IS final and bIndmg IX The Umon also argued that Mr RIvard held full-tIme status between February 1995 and August 1995 when he was m the temporary full-time contract The Employer disagrees that the temporary contract gave the Gnevor any nghts as a full-tIme employee The only eVIdence presented was the Opl1110n of the Gnevor that he was given the temporary contract because Green's recognIzed hIs full-tIme status There IS nothmg m the memorandum of settlement whIch mdlcates the Gnevor was bemg gIven the temporary contract as a full-tIme employee In fact, the agreement clearly provIdes that Mr Rivard would be paId at the part-tIme wage rate Further the Gnevor's vIew that the Employer recognized hIs full-tIme status IS mconslstent wIth hIs gnevmg the removal of hIs name from the full-tIme senlonty list m January 1995 and agaIn In July 1995 Therefore, I find that the Gnevor dId not acqUIre any nghts as a full-tIme employee whIle workmg In the temporary full-tIme contract between February and August 1995 The central agreement provIdes In part at ArtIcle 11 (1 ) Any laid off full-tIme employee (laId off subsequent to ratIficatIOn) will be offered first opportunity to all part-tIme hours at hIs/her servIce up to the normal week.ly hours of work. It IS understood that thiS provIsIOn Will not return the lmd-offfull- tIme employee to full-tIme status, and that the laId-off full-tIme employee retal11S recall nghts as per the collectIve agreement (Not apphcable to layoff of temporary replacements) Smce Mr RIvard lost his fuJI-time status III August of 1994, and the central agreement was not ratIfied until the fall of 1994, the Gnevor has no recall nghts under the agreement Havmg deCIded Mr RIvard has no recall nghts, It IS not necessary to address whether or not these gnevances are tImely or the alternate estoppel argument made by the Employer Gnevances 1 and 5 complalll that the Employer has wrongly posted part-tIme pOSItions one dated August 14 1995 and one dated September 19 1995 The Union claIms that these po stIngs are III ViolatIon of the central agreement The Union further submItted that the Employer I') ~ had avaIlable work or else It would not be seekIng more employees and that, III fact the Gnevor was entItled to these hours Whde I am sympathetIc to the Gnevor's complarnt here I find that there IS nothrng wlthrn the collectIve agreement that entities Mr RIvard to the full-tIme posItIOn, once held by Mr Bovey, or the hours, smce he IS not a full-tIme, laId off employee, nor the most senIOr part-tIme ambulance attendant The UnIOn has not proVIded any eVidence or shown me any article m the collective agreement that prohibIts such postmgs I have to conclude that there has been no breach of the collective agreement In decldmg this I do not address the general questIOn of whether the Employer IS obligated to fill a full tIme pOSItIOn whIch IS vacated, srnce thIS policy gnevance IS not before me Order For the reasons noted above, the gnevances are dismissed Dated at Toronto thiS 12thday of March 1998 l- I .-~; D J D LeIghton, Vice-ChaIr ::!()