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HomeMy WebLinkAbout1995-2408SPARKS97_11_24 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180DIJNDAS STREET WEST, SUlTE8OO, TORONTOONM6G IZ8 TELEPHONE/TELEPHONE (41~) 32~-1388 180, RUE DUNDAS OUEST, BUREAU 800, TORONTO (ON) M5G 1Z8 FACSIMILEfTELECOPIE (41~) 328-13~ GSB 11 2408/95 OPSEU 11 96C286 IN THE MATTER OP AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Sparks) Grievor - and - the Crown in Right of ontario (Ministry of Transportation) Employer BEPORE L. Mikus Vice-Chair FOR THE L. Harmer UNION Counsel Gowling, Strathy & Henderson Barristers & SOlicitors POR THE L Brossard EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING December 16, 1996 January 21, 1997 The gnevor, Mr DennIs Sparks, was hIred as an AdmInistrative Records Clerk with the Ministry of TransportatIOn on January 30th, 1995 On January 12th, 1996, he filed three grievances; the first allegIng he had been dismIssed WIthout cause, the second allegmg that he was being harassed by way of a performance appraisal and the third that he had been discrImmated agaInst for Union activity On January 15th, 1996, he filed an additional grievance allegIng that he had been harassed In the work place. In these grievances he asked that he be reInstated WIth full back pay and semority, that the performance appraisal be removed from his file and that the harassment cease. At the first day of hearing a preliminary issue arose WIth respect to the grievor's status at the time of hIS dIsmissal. It was the position of the Employer that the grievor was on probation. The Employer also took the position that, If this Board should find that the grievor was not on probation at the time of his discharge, the gnevance is out of the time limits prescribed In the Article and therefore inarbitrable. The Union took the positIOn that the probationary period had expired on October 30th, 1996, and that at the time of his dIsmissal the grievor was a full tIme employee WIth seniority The partIes presented the Board with the following Agreed Statement of Fact: Re: OPSEU File Nos 96C286, 96B504, 96B505 and 96B506 G.S.B. File Nos. 2408/95 BETWEEN OPSEU (Dennis Sparks) (The "Union") 1 2 - and - The Crown in Right of Ontario, as represented by the Ministry of Transportation (The "Employer") AGREED STATEMENT OF FACTS 1 Mr Dennis Sparks was appointed to the Structural Office of the Ministry of Transportation on probatIOnary status on January 30, 1995, as an Administrative Records Clerk. 2. Prior to that time, from June of 1994 to January 29, 1995, Mr Sparks was employed on a full-time basis as an Audit Analyst Assistant by the Ministry of Housing in the unclassified service Mr Sparks' period of continuous service in the OPS commenced at least 9 months prior to January 30, 1995 3 From June 26, 1995 to September 15, 1995, Mr Sparks was absent from his employment on sick leave. On September 21, 1995, Mr Sparks was gIVen ajob perfonnance appraIsal. At the conclusion of that appraisal the employer stated. Dennis was appointed to the Structural Office on probationary status on January 30, 1995 Provided Dennis successfully completed his probationary tenn he would have been appointed to pennanent status on October 30, 1995 Due to a lengthy absence from work from June 26, 1995 until his return on Monday, September 18, ] 995 on a part-time basis (3 1/2 hours per day for 3-4 weeks) his probationary tenn will be extended until approXimately January 30, 1996, if hiS work perfonnance Improves greatly 4 Mr Sparks signed the perfonnance appraisal on September 21, ] 995 5 The Union was not consulted by the Mimstry with respect to the Mimstry's intent to unilaterally extend Mr Sparks' probatIOn penod, nor did the Union consent to such an extension. Neither the Union nor the grievor gneved the perfonnance appraisal or the extension of the probationary period at that time, but filed a gnevance regarding the perfonnance appraisal on January 12, 1996 (a) From September 21, 1995 to October 30, 1995 the Employer had no knowledge that the grievor took issue with the extension of his probatIOnary period. Had the Employer known this, the Employer would have released the grievor from employment prior to October 30, 1995 on the basis that he did not meet the expectatIOns of the position of AdmInistrative Records Clerk. 3 (b) From September 21, 1995 to shortly after December 19, 1995 when the gnevor first consulted the Union, the gnevor was not aware that he had any right to gneve the fact that the Employer had extended his probationary penod beyond October 30, 1995 6 On January 12, 1996, by letter from Mr Ranjit Reel, Mr Sparks was released from employment pursuant to Section 22, subsection 5 of the Public Service Act. 7 The parties agree to the above-noted facts and agree to place those facts before the Gnevance Settlement Board at the hearing into this matter This agreement does not preclude the parties from adducing evidence with respect to facts not set out in the Agreed Statement of Facts. UNION ARGUMENT Ms. Harmer, for the Umon, took the posItion that Article 25 1 of the Article IS clear It states that "an employee's length of contInUOUS service will accumulate upon completIOn of a probatIOnary period of not more than mne months" That provision does not allow the Employer to unilaterally extend an employee's probatIonary period without the consent of the Umon. The Union is the exclusive bargaInmg agent for ItS members and the Employer cannot enter mto agreements WIth employees that contravene the provIsions of the Article without the knowledge and consent of the Union. The Employer has acted as If it had discretion over the length of the probationary period, which IS clearly contrary to ArtIcle 25 1 The Article IS clear The probationary penod is mne months. If the parties had wanted to allow for an extensIOn to the probationary period, they could and would have expressly allowed for It. In fact, where the parties agreed that a probationary penod could be shorter than nine months, they expressly stated so In ArtIcle 3 13 1 an employee who IS appomted to the classified service and works for more than 24 hours a week on a contmuous basis Immediately pnor to the appoIntment to the classified service IS credited WIth the tIme worked in the prevIOUS year towards the probationary period to a maXImum of six months. 4 The Union also argued that where the parties tntended to qualify or define tIme limIts, they did so When the parties meant that tIme should be calculated on the basIs of working days, they expressly stated so. For example, m Article. 4 1, vacancies are to be posted for ten workmg days. In Article 6 1 1 regardmg temporary reassignments, the parties expressed their intentIon m "consecutive workIng days" SimIlarly, in Article 24, which deals with employment stability, the Article contaInS several references to weeks and months. In Article 24 M.3, they expressly stated that an employee has "three working days" to accept or reject an offer In Article 27 14 1, whIch deals with the grievance procedure, the parties stated that all reference to days was exclUSIve of Saturdays, Sundays and deSIgnated holIdays. In Article 3 19, the probationary penod for seasonal employees IS "2 full periods of seasonal employment of at least eIght consecutive weeks each worked in consecutIve years." In article 25 1, the partIes agreed that nine months was a suffiCIent length of tlme to evaluate someone's SUItability for the Job. They were very preCIse to calculate how to apply past servIce in the calculatIOn of that probationary period to the extent that they mcluded a formula for its conversion. They dId not qualify the nine month penod by the requirement that it be nine consecutIve working months, whIch is what the Employer would have thIS Board read into the Artlcle. It is clear from the Article, the Union submItted, that where the parties Intended to qualIfy and/or define a tIme designatIOn, they were careful to do so. The absence of any such qualIfier or defimtion must mean that where the parties were referrIng to months, they meant calendar months. The Umon took the posItIOn that the word "months" has been used extenSIvely m thIS Article and 5 .. has consistently been used without qualifiers. The reason IS that the parties intended the word "months" to mean calendar months. That is the meaning that this Board should attribute to the words "mne months" in this case. In support of its position, the Union relied on the following cases. Re Hiram Walker & Sons Ltd. and Canadian Union of Distillery Workers (1975), 9 L.AC. (2d) 357 (Weiler); Re West Viking College and Newfoundland Association of Public Employees (1994), 43 L.A.C. (4th) 384 (Oakley), Re Canadian Broadcasting Corporation and Canadian Union of Public Employees (1985), 21 L.AC. (3d) 389 (M. PIcher), Re North West Territories and Union of Northern Workers (1989), 5 L.AC. (4th) 1 (Chertkow); Re K-Line Maintenance and Construction Ltd. and International Brotherhood of Electrical Workers, Local 1928 (1988), 35 L.A.C. (3d) 358 (Cromwell); Re McGavin Toastmaster Ltd. v Ainscouth et al (1975),54 D.L.R. (3d) I (SCC), Re Polysar Ltd. and Royal, Chemical and Atomic Workers, Local 91-14 (1975),8 L.A.C. (2d) 306 (Weatherill), Re Royal Canadian Mint and Public Service Alliance of Canada (1975), 11 L.AC. (2d) 63 (Abbott), Re Canada Post Corporation and Canadian Union of Postal Workers (1983), 11 L.A.C. (3d) 90 (P C. Picher), Re Pioneer Electrical Manitoba Ltd. and United Steelworkers of America, Local 4297 et al (1971), 20 DLR (3d) 439 (Manitoba Court of Appeal) and Re LaSalle Machine Tool of Canada Ltd. and United Automobile Workers, Local 195 (1973), 3 L.AC. (2d) 163 (Weathenll). EMPLOYER ARGUMENT The Employer agreed that the issue was whether the gnevor was a probationary employee when he 6 was termmated. When he was hired on January 30, 1995, he sIgned a document acknowledgIng a probatIonary perIod of mne months. He was given verbal notIce that there were problems with his performance and that was confirmed m a performance appraisal dated June 26, 1995 On the day of the performance reVIew, the grievor called in sick and did not return to work untIl September 15, 1995 At the rescheduled performance appraisal meeting on September 21, 1995, he was advised that his probatIOnary penod was beIng extended. He did not object nor did he file a grievance at that time. If the Employer had known he would challenge its decision to extend hIS probatIonary period, It would have released hIm at that tIme. If the issue for thIS Board is whether the Employer can extend a probationary penod, it crystallIzed in September when the grievor was adVIsed that his was being extended by the length of hIS absence. He could have gneved at that tIme. Equitable consIderations preclude him from now taking Issue with the Employer's deciSIOn. It IS not simply that the grievor remained silent at the tIme. He sIgned the performance appraisal that clearly stated he was a probatIOnary employee. It suited his purposes to remain silent. The Employer, belieVIng that the gnevor accepted the extension to the probatIOnary penod, was content to contInue to work WIth him mstead of termmatmg hIm. There would be senous prejudice to the Employer if thIS Board should allow the Umon's pOSItion to succeed. The Employer argued that this Board should take into account the grievor's silence and ItS effect m determining thIS Issue. The Employer also took the pOSItIon that the collective agreement reqUIres a probationary penod of nIne months. It IS a time that employer's are allowed to assess an employee's SUItability and abilIty 7 It requires that an employee be at work for the full penod ofthe assessment. For that reason, article 25 1 should be read in a purposive way to give effect to the parties' Intentions. Otherwise it has no meamng. It was submitted that the Umon's request for this Board to read thIS provIsion in a manner consistent with other provisions of the collective agreement can be problematic. When negotiating amendments to a collective agreement, the parties are not always careful to make sure that changes m a new provIsion are consistent WIth all other proviSIOns of the old agreement. The most important consideration should be the context wIthin which words are used. In this case, the Employer submitted that its interpretation IS more consistent WIth the purpose of the clause and the intentions of the parties. If the partIes meant calendar months, they would have taken care to say that. They dId not and the Board should not read words into the collectIve agreement that the parties did not mtend. The Employer rehed on the follOWIng cases: Re Mine and Exploration Equipment Workers and Canada Longyear Ltd. (1970), 21 L.A.C. 222 (SImmons), Re LaSalle Machine Tool of Canada Ltd., United Automobile Workers, Local 195 (1973), 3 L A.C (2d) 163 (Weatherill), Re Dartmouth General Hospital and Community Health Centre and Canadian Brotherhood of Railway Transport and General Workers', Local 606 (1982), 3 L.A.C (3d) 420 (Langille), Re Algonquin College and Ontario Public Service Employees Union (1986), 22 L.A.C (3d) 129 (G G Brent); Re Metropolitan Toronto Association for the Mentally Retarded and Canadian Union of Public Employees, Local 2191 (1983), 9 L.A.C. (3d) 58 (LangIlle), Re Regional 8 Municipality of Ottawa-Carlton and Ottawa-Carlton Public Employees' Union (1987), 31 L.AC. (3d), 328 (Carrothers), Re International Chemical Workers, Local 165 and North American Cyanamid Ltd. (1958), 8 L.AC. 231 (Lane), Re Treasury Board (Employment and Immigration Canada) and Dekoning (1993), 33 L.AC. (4th) 203 (Burke), Re United Steel Workers of America and Aeroside Dispensers Ltd. (1995) 15 L.A.C 416 (Laskin); Re Walker and Ministry of Correctional Services (1989) O.S.B. #127/88 (Fisher) and Don Sheppard and Ministry of Government Services (1988), G S.B. #2492/86 (Slone). UNION REPLY The Union took the positIOn that the time limIts for filing a gnevance begm when an employee is aware that there has been a breach. In this case, the grievor did not know he had a gnevance until he was terminated. The Mmistry has tned to separate the Issue of the gnevor's status and his terminatIOn. It suggests that they should have been grieved separately However, the issue of his status did not arIse untIl he was terminated. That IS the issue before the Board. DECISION The prelIminary issue for thIS Board to determine IS the employment status of the gnevor at the time of his termInation. Ansing from that question are the issues concerning the unilateral rIght of the Employer to extend the probatIOnary penod and the tImely filing of the grievance. The Employer termmated the gnevor pursuant to sectIon 22 (5) of the Public Service Act which allows for the release of a probatIOnary employee for a fallure to meet the reqUIrements of the Job -- 9 If, however, the grievor was not a probationary employee, the Employer will be held to a higher standard. The Union has urged me to interpret the collective agreement strictly, which, it submits, favours Its posItion. The Employer, on the other hand, has asked the Board to Interpret the collective agreement in a purpOSIve manner which would gIve meaning to the intentIons of the parties. The provIsion of the collectIve agreement at issue IS article 25 1 which reads as follows: Article 25 - SENIORITY (LENGTH OF CONTINUOUS SERVICE) 25 1 Effective February 3, 1992, an employee's length of continuous service will accumulate upon completion of a probationary period of not more than nine (9) months and shall commence: (a) from the date of appointment to the Classified Service for those employees with no prior service in the Ontario Public Service; or (b) effective January 1, 1992, from the date established by adding the actual number of full time weeks worked by a full time unclassified employee during his full time employment back to the first break in employment which is greater that thirteen (13) weeks; or (c) for a regular part-time civil servant, from January I, 1984, or the date on which he commenced a period of unbroken, part-time employment in the public service, immediately prior to appointment to a regular part-time position in the civil service, whichever is later; or (d) effective January 1, 1984, from the date established by adding the number of full-time weeks worked by a full time seasonal employee during his full- time employment back to the first break in employment which is greater than thirteen weeks. "Unbroken service" is that which is not interrupted by separation from the public service: "full-time" IS continuous employment as set out in the hours of work schedules for the appropnate classification, and "part-time" is continuous employment In accordance with the hours of work specified In Article 61 1 Effective December 20, 1990, any leaves-of-absence granted under Articles 3.9 and 3.35 shall be mcluded in the calculation oflength of continuous service. ArtIcles 3 9 and 3.35 deal WIth pregnancy and parental leaves. 10 In the instant case, the Employer extended the probationary period for approxImately three months, the length of the gnevor's absence. In the normal course of events, hIS probationary penod would have been concluded nine months after he was hIred, that IS on October 30, 1995 In consIdering the Issue of the employment status of the gfIevor, the first question to be addressed IS whether the Employer had the fIght to umlaterally extend the probatIonary penod without the consent of the Union. The answer to that question was definitIvely dealt with by the Supreme Court of Canada in the McGavin Toastmaster case (supra) Once the parties enter into a collective agreement that governs the terms and condItIons of employment, there can be no pnvate contracts of employment that contravene that collectIve agreement Without the consent of the bargaInmg agent. In the instant case, the Employer amended the probationary period for the gnevor without discussion or agreement from the Union. It did not have the nght to do so and accordIngly neIther the Union nor the gnevor are bound by that contract. The Employer has suggested that it would be unfaIr of thIS Board to VOId the private contract WIth the gnevor SInce he did not object at the tIme. The Employer maintaInS that it would have termmated the gnevor's services at the time if It had known he would challenge the extenSIOn. WhIle that might be true, the fact remaInS that It dId not have the nght at the tIme to amend the collective agreement without the Umon's consent. It cannot now ask thIS Board to enforce a contract that was invalId In the first Instance. The Board In the Westviking case (supra), came to the same conclUSIOn. In that case the employer mIstakenly advised the gnevor when he was hIred that his probationary penod would be two years when the collectIve agreement provided for one year The Board confirmed the findIng In the McGavin Toastmaster case and found that the IndIvIdual contract of hIre was void. It also rejected 11 , the employer's submIssions that the grievor and the union were estopped from relying on the strict terms of the collective agreement because the Union never agreed to or acqUIesced to the contract. The Boards in the Canadian Broadcasting, Northwest Territories, Canada Post and K-Line cases (supra) came to the same conclusion. The next issue is whether the grievor should have challenged his probationary status in September of 1995, when he was advised that it had been extended to January 30, 1996 That issue was dealt WIth III the Canadian Broadcasting case (supra). In that case, the gnevor was hired on January 9, 1984, and was terminated on June 21, 1984 The collective agreement provided for a thIrty day probationary penod. She had been advised on April 10, 1984, that her probatIOnary period was being extended but did not file a grievance until she was terminated in June. The issues for the Board to determine were whether the grievance was timely and whether the grievor was on probatIon at the time of the termination. The Board, in dealing WIth the first issue, stated, at page 392-3 .the status of an employee, and in particular whether he or she is a probatIonary employee is not a matter entirely in the discretion of the corporation. Employee status is controlled by the tenus of the collective agreement, and the corporation's discretion is to that extent limited or constrained. If an employee has the status of a full-time, continuing employee, that status is fixed in law and cannot be altered by a umlateral assertion to the contrary by an officer of the corporation. In the circumstances, was there an obligation on the part of the grievor to grieve the letter advising her that her probationary period was being extended? I think not. Firstly, there was at the time of the notification no immediate practical consequence that was clearly adverse to the grievor She could reasonably have expected that in all likelihood nothing would come of the corporation's position that she was still probationary, and that she would be confinned in her position, with her seniority thereafer to be computed retroactIve to her date of hire, as contemplated by art. 32 of the collective agreement. If that sequence of events unfolded, there would be no hann done to the grievor It is understandable that an employee should be reluctant to precipitate a dispute with his or her employer, particularly where the merits of the dispute might well become academic. In the arbitrator's view it is when the dispute ceases to be academic, and has some meaninful consequences for the parties, that the obligatIon to grieve arises. In the instant case, that happened only when the corporation 12 purported to release the grievor as a probationary emplyee 10 June of 1984 .In my view the mere communication of the opinion of an officer of the corporation that an employee continues to be probationary does not constitute an "incident" within the meaning of art. 56.4 which can or should be grieved. The mcident which put the grievor's employment status into question in a meaningful way did not occur until her tennmation on June 21, 1984 I adopt the reasonmg of Arbitrator PIcher There was no issue between the grievor and the Employer until the termination. That was when the consequences to the grievor ceased to be academic and when hIS obligatIOn to grieve within the time limits of the collective agreement came into effect. The Instant grievances were filed in accordance wIth those time limits and are therefore arbItrable. The next Issue concerns the Employer's assertion that the grievance was filed outside of the time limits of the collective agreement and never properly processed through the grievance procedure. It submits that the proper time for the grievor to have challenged his probationary status was at the time he was advised of the extenSIOn. That is what this grievance challenges, the extension to the probationary period, that issue was never properly processed through the grievance procedure and is therefore inarbitrable. I dIsagree. The gnevance concerns the grievor's dIsmissal. As a prelIminary matter, his status at the time of the dismIssal has become an issue. That grievance was properly processed through the gnevance procedure and is properly before me. Having determmed that the grievance was filed withIn the time hmits proscribed in the collectIve agreement and properly processed through the grievance procedure, the final, and more significant Issue, IS whether the gnevor had, m fact, completed hIS probationary penod at the time of hIS terminatIon. The Employer takes the position that, SInce the gnevor was absent for approXImately --_.~- 13 /' three months dunng hIs probatIOnary period, he dId not serve the nine months set out m the collective agreement. It asks that I interpret the phrase "nine months" to read "nine workmg months" The Union, on the other hand, urges me to interpret the phrase to read "nine calender months" The primary responsibIlity for an arbItrator in interpreting a collective agreement IS to attempt to ascertain the intentions of the parties who drafted the collectIve agreement. It has been universally accepted that the purpose of a probationary period is to allow an employer to assess an employee's suitability before (s)he gains the nghts and protections of the collective agreement. To do that the employer must observe the employee at work. When the probationary penod is interrupted, the abIlIty to assess that employee is lessened by the length of the absences. F or that reason, the majority of arbItrators have been inclmed to interpret collective agreements in a purpOSIve way to give effect to the partIes' intentions. Others have assumed that the language should be given its ordmary or common sense meamng unless that leads to an absurdity or inconSIstency with the rest of the agreement or unless the context reveals that the words were meant to be used in some other sense. Both approaches are, of course, subject to the express provisIons of the collectIve agreement at Issue. That Idea was stated In Re Canadian Boradcasting (supra), at page 395, as follows. Where the words in a collective agreement are otherwise barren of clarification, it is not unreasonable to presume that a period of days, weeks or months established in a probationary period is menat to refer to working days, weeks or months. That is the most likely mtention given the essential purpose of any probationary period, which is to allow the employer a reasonable penod to fully assess the ability of an employee, whether he is newly hired or freshly promoted to new responsibilities. It is trite to say, however, that where they chose to do so for whatever reason, it is open to the parties to fashion a probatIOnary period in terms of calendar days. Where the language of the collective agreement reflects that intentIOn, there can be no recourse to any contrary interpretation, no matter how purposive. It IS also beyond dIspute that where a collective agreement establishes a fixed period of 14 ~ probation it is not open to the employer to unilaterally extend the period... The cases dealIng with the mterpretation to be gIven to terms in a collective agreement respecting probationary penods are legIOn. In the Canadian Longyear case (supra), the Board interpreted the reqUIrement that "new employees will serve thIrty consecutive working days as a probationary period" to mean thirty actual days of work, not thirty consecutive calendar days. In the Dartmouth General Hospital case (supra), the collective agreement provided that a newly promoted employee would be on probation for "the first month" The union argued that the proper interpretation was "calendar month" whereas the employer contended it should be read as an month actually worked. The Board concurred with the general consensus of arbitrators that, m the context of a probationary period, month should be interpreted as "working month" It rejected the finding of the Board in the Re Royal Canadian Mint case (supra), that the word "month" should be given its ordinary meanIng of calendar month. In Metropolitan Toronto Association for the Mentally Retarded (supra), the Board held that the words "actively at work" should be interpreted to that mean sick days and holidays did not count In the calculation of the probationary penod. In International Chemical Workers (supra), it was determined that the words "contInUOUS servIce" should be interpreted to mean unmterrupted service and that absences could not be counted towards the completIOn the probationary period. In the Algonquin College case (supra), a probationary employee was required, according to artIcle 15 14 1, to complete "six months of employment with the College in any twelve month period" The grievor was employed m December of 1983 and terminated on January 28, 1985 During that time he was absent from work on Worker's Compensation benefits for nine months and actually worked less than six months as a result. The umon argued that he had been employed more than six calendar months and had completed his probationary period. The employer took the position that the probationary period should be measured in actual workmg tIme, whIch meant the grievor was still on probation at the time of hIS termmatIOn. The Board considered the collective agreement as a whole and determined that the employer's pOSItion should prevail. ArtIcle 14.2 stated that semority and servIce would accumulate for a period not to exceed SIX months dunng any leaves of absence. It further provided that it dId not apply In the case of probationary employees who were required to complete SIX months of active employment to attain seniority Active employment was defined, in artIcle 11.2, whIch concerned vacatIOn entitlement, as follows. Active employment means actual attendance at the work place and the performance of work but includes absences from work for vacations and holidays, or illness or maternity leave for up to six (6) calendar months during the term of the Agreement, or adoption leave for up to six (6) weeks during the tenn of the Agreement. The arbItrator found an Internal InCOnSIstency between article 11.2 and article 14 Article 14 1 defined the probationary penod as SIX months, whIle artIcle 14.2 prOVIded for the accumulatIOn of service and senionty dunng paId or unpaid leaves of absence to a maXImum of SIX months but subjected the accumulatIOn of semority and service for probationary employees to a six month reqUIrement of active employment. The arbitrator deCIded that, by allowing for an interruption of work during the probatIOnary penod, the partIes had left open the question of what would interrupt a probatIOnary penod. He found that the probationary penod could be Interrupted "for some reason 16 or another" provided the SIX months was completed wIthin a year He mterpreted artIcle 14.2 to mean that probatIonary employees could not be credited with retroactive seniority durIng absences and therefore, the reference to "active employment" article 11.2 could not have been intended to apply to artIcle 14 He preferred to adopt a purposive interpretatIon that would require actual attendance at work. I disagree. In my opimon, the opposite result IS more consistent with the language of the collectIve agreement as a whole. In that case, the parties carefully defined "active employment" to include certain absences from work for purposes of vacatIOn entitlement. While It is true that the purposes of these two articles are dIfferent, the fact that the partIes used that same phrase in both SItuations must be taken to mean they mtended the defimtIOn to apply to both. If not, they could have expressly excluded all leaves of absence in Article 14.2 or clearly defined "actIve employment" m the context of semority and probatIOn. That they dId not suggests that the definition in the collective agreement was to apply wherever it was used. I am confirmed in my opInion by the fact that the parties themselves contemplated an interruption in employment during the probationary penod. I would have come to a different conclusion on the language of that collectIve agreement. Having Said that, I begIn by statIng that I agree WIth the accepted proposItIon that the purpose of a probatIOnary period is to allow an employer to assess a new employee's sUItablhty and abIhty to do the work and that, in order to do so, an employee must be at work for the full probatIOnary period. The real Issue is, however, to determme what the parties mtended m thIS collective agreement. There are several references to tIme frames m the collectIve agreement. For example, the time off for pregnancy and paternal leave IS expressed In weeks, vacanCIes are to be posted for ten workIng 17 days and grievances are to be filed and processed withm certain numbers of days excluding Saturdays, Sundays and designated holidays. The references that are most relevant to this matter, in my view, are those that deal with semonty, layoff, recall and probationary penods specifically In artIcle 3, the partIes clearly stated that, when an employee was appointed to the classified service from the unclassIfied servIce, that (s)he would receive credit for past service for "the time he actually worked" to a maxImum of six months. Seasonal employees are on probation for "two full periods of seasonal employment of at least eIght consecutive weeks each" and are credited with semority after completion of the probationary period wIth "all hours worked as a seasonal employee" Article 24, Employment StabIlity, is also helpful. The benefits of those prOVISIOn are available to probatIOnary employees, although the terms of that proviSIOn are not deemed to be a recogmtion of senionty or service for purposes of artIcle 25 Nevertheless, in that artIcle, senionty for a probationary employee is calculated from the first day of hIs/her probationary period but is deemed to have commenced with hls/her most recent "actual penod of employment" Article 25 Itself states that a probationary employee's semority (length of servIce) shall commence "from the date of appointment to the classified service" The conversion of part time or unclassified full tIme servIce, on the other hand, is dlfectly related to the actual time worked Immediately pnor to the appomtment. 18 Where the partIes were addressmg earned benefits hke vacatIon credits and sick leave, they were more precise about the method to be used In calculatIng those benefits. Vacation credits are earned for every month or part thereof. New employees are credited with pro-rated vacatlon credits for the balance of the calendar year after the completion of six months of continuous service. Short term sick leave is granted for the first six working days at full pay and for one hundred and twenty-four working days at seventy-five percent of salary after working twenty consecutive workIng days. An employee returnIng from long term disability must complete twenty consecutIve working days of employment to requalify for short term sick pay As can be seen, the parties have gIven considerable thought to the issue time as it relates to seniority and service throughout the collective agreement. Where they Intended to require continuous or consecutive periods of employment, they stated so clearly Where they agreed to credIt past unclassified service towards semority In the classified service, they agreed on a specIfic conversIOn formula to express their intentions. They defined unbroken service as "that which is not interrupted by separation from the public service" and full time as "contInuous employment as set out in the hours of work schedules" In my opmIOn, if the parties had Intended to lImIt the probationary period to actual workmg tlme, they would have stated so clearly, as they have III other sectlons of the collective agreement. When they stated that the probatIOnary penod would be "not more than mne months", they meant mne calendar months. The gnevor had completed nme months of continuous serVIce at the tlme of hIS termmatIon and was therefore no longer on probatIOn. 19 1 was provided with the decIsIon of Arbitrator Fisher m Re Walker and Ministry of Correctional Services, (1990) GSB # 1272/88 in which he appears to have come to a different conclusion. In that case, the grievor was dIsmIssed for falling to meet the requirements of hIS pOSItion pursuant to the Public Service Act. The employer's position was that they had been unable to assess the grievor because she was absent for 50% of her first year of employment. Interestmgly, the employer in that case acknowledged that It did not have the power to extend the probationary penod beyond the year set out In the Act and the collective agreement and had no alternative but to dIsmiss her The collective agreement at the time read as follows: 25 I An employee's length of continuous service will accumulate upon completIOn of a probatIOnary period of not more than one (I) year and shall commence: (a) from the date of appointment to the Classified Service for those employees with no prior service in the OntarIo Public Service; or (b) from the date on which an employee commences a period of unbroken, full-time service in the public service, immediately prIor to appomtment to the Classified Service; or (c) for a regular part-time civil servant from January I, 1984 or from the date on which he commenced a period of unbroken service in the public service, immediately prior to appomtment to a regular part-time position in the civil service, whichever is later At page 4 of the deciSIOn, Arbitrator Fisher stated as follows: Moreover, although the employer may not have the power to unilaterally extend the probationary period beyond the one year limit, this must be seen in the context of the purpose behind the probatIOnary period. The purpose IS for the employer to have a proper opportunity to observe the probationer in order to make the ultimate assessment of whether or not that person is suitable for the penn anent position (Sheppard p. 18 and 19 supra). One cannot assess someone's perfonnance while they are not perfonnmg the job due to a compensable injury, therefore, in order for the employer to have a proper one year perIod to assess the employer, it could have treated the tIme in which the grIevor was off SIck as not counting as part ofthe probationary period. The one year restriction in Section 6(2) of the P .S.A. and Article 25 1 of the Collective Agreement should be viewed as referring to "workmg time" not "calendar time" ThIS means that the employer could not extend the probatIOnary period of an employee beyond the one year SImply because they did not feel 20 twelve months or working tIme was sufficient to Judge the person but it does allow them to Insist that they have a full twelve months of working tIme in which to assess the employee and they should not be forced to make an assessment on the basis ofless than twelve months of working tIme. On the language of the collectIve agreement before that Board, I would have come to the same conclusion. However, artIcle 25 1 has been amended SInce then. The parties, In subsection (b), added the words "actual number of weeks worked" and another entIre subsection dealing wIth "the number of full-time weeks worked by a full-time seasonal employee" By expressly limiting the condltions respectmg the calculatIOn of semonty in those subsections to actual working time, the partIes were aware of the need to clearly state when actual tIme worked was reqUIred. The absence of simIlar words In ss. (a), It IS reasonable to assume they did not intend a similar result. It is the deciSIOn of this Board that the grievor had completed nine months of employment when he was termInated and therefore was not a probationary employee at the time. Dated thIS 24th day of November, 1997 ~4 /i~ Loretta Mikus, V Ice-ChaIr