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Home My WebLink About1996-1609.Bothwell.00-10-16 Decision o NTARlO EMPUJYES DE LA COURONNE CROW"! EMPLOYEES DE L 'ONTARlO . . GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE, (416) 326-1388 180 R[TED[TVDAS ()[TEST B[TREM 600 TORONTO (ON)M5G IZ8 FAC:STMILE/TELE(YJPIE. (416) 326-1396 GSB #1609/96 1907/96 1934/96 2214/96 36/97 0727/98 OPSEU #96H026 96H051 96H253 96D983 97C188 98C345 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between. OPSEU (Bothwell et al.) Grievor - and - The Crown In RIght ofOntarlO (MInIstry of Commumty and SocIal ServIces) Employer Before. Owen V Gray Vice-Chair Decision [1] In response to my order of August 28 2000 the umon has filed wntten submIssIOns wIth respect to 22 Contmuous ServIce Date ("CSD") gnevances, and the employer has filed a wntten reply ThIs order deals wIth the 12 gnevances lIsted m Schedule "A, whIch have been settled or can be dIsposed of on the basIs of the matenal now before me Grievances of Karen Sterling and Wayne Taylor [2] The partIes have advIsed the Board that these gnevances have been settled Accordmgly no dISposItIOn IS necessary Grievances of Ruth Bothwell, Dave Calverly, Beatrice Cook, Maxine Dierkens, Sandra Durant, Bonnie Horn, Marilyn Levasseur and Celina Longpre-Sanscartier [3] The umon submIssIOns wIth respect to the gnevances of Ruth Bothwell, Dave Calverly Beatnce Cook, Maxme DIerkens, Sandra Durant, Bonme Horn, Manlyn Levasseur and Celma Longpre-SanscartIer all contam unqualIfied statements that the umon does not dIspute the employer's calculatIOn of the gnevor's CSD and that there IS no dIspute between the partIes Accordmgly those gnevances are dIsmIssed Grievance of Shirley Ferencz [4] In ItS submIssIOn wIth respect to thIS gnevance the umon states that It accepts that the earlIest possible CSD for an employee wIth thIS gnevor's employment hIstory IS the one wIth whIch she was eventually credIted January 1 1984 That the calculatIOn of her CSD cannot mclude credIt for part tIme unclassIfied employment pnor to January 1 1984 IS very clear from the prOVISIOns of the collectIve agreements m effect at and smce the tIme the gnevor 3 was appomted to the classIfied serVIce as a regular part tIme employee It IS unfortunate that at one stage a Human Resources Consultant told the gnevor that she could be credIted wIth a CSD of November 1 1979 CSD That was not consIstent WIth the prOVISIOns of the relevant collectIve agreements, and such a departure from the collectIve agreement could not be effectIve wIthout the umon S consent, whIch was not gIVen. Accordmgly thIS gnevance IS dIsmIssed Grievance of Shirley Farmer [5] ShIrley Farmer was appomted to the Regular Part TIme classIfied serVIce on January 1 1986 From May 9 1984 to the date of her appomtment, she had been employed on a part tIme unclassIfied basIs Before that, from January 7 to May 8 1984 she had been on matermty leave For almost 4 years pnor to that leave she had been employed on a part tIme unclassIfied basIs [6] The umon S submIssIOn wIth respect to Ms Farmer's gnevance IS as follows The Issue m chspute between the partIes IS whether or not the gnevor should reCeIve credIt for her 122-dav matermtv leave from Januarv 07 1984 to Mav 08 1984. (#17 m the attached emplover submIssIOn) The Dmon recogmzes and agrees wIth the credIt of servIce prIOr to Januarv 07 1984. The Dmon IS aware of thIS Vlce-Chmr s decIsIOn m Mvers, GSB 1625/96 It IS the Dmons submIssIOn that bv not crechtmg the gnevor wIth the actual penod of her matermtv leave that there eXIsts the potentIal of adverse effect chscnmmatIOn. The most sIgmficant Impact could be that the gnevor IS laId off mstead of another emplovee whose CSD IS less than 122 davs more than the gnevor's. [7] Havmg carefully revIewed the employer's mItIal and reply submIssIOns It does appear that the only Issue m dIspute between the partIes IS whether or not the gnevor should receIVe credIt for her 122-day matermty leave I note partIcularly that I am not called upon to consIder the correctness of the credIt gIVen to the gnevor for part tIme unclassIfied serVIce pnor to January 7 1984 [8] The gnevance m Myers 1625/96 (Gray) was also concerned wIth the credIt to be gIVen to an appomtee to the Regular Part TIme classIfied serVIce for 4 pnor part tIme unclassIfied employment The gnevor's pre appomtment actIve serVIce there had also been mterrupted by a matermty or pregnancy leave The mteractIOn of the collectIve agreement s rules for calculatmg CSD s wIth the Human, R[ghts Code and the prOVISIOns the Employment Standards Act ("the ESA ) m force pnor to December 20 1990 was thoroughly argued Although the result for that gnevor ultImately dId not depend on the outcome of those arguments, I dealt wIth them m the decIsIOn because the partIes had agreed that the gnevance there was m the nature of a test case and that other cases mIght turn on the outcome [9] In paragraph 28 of my decIsIOn m Myers I noted that [I]gnormg for a moment anv effect the Emplovment Standards 'lct ("the ESA') or the Human RI.ghts Code mIght have as regards a pregnancv leave the language of ArtIcle 25 1 as It eXIsted prIOr to 1992 clearlv precluded credIt for a penod of unpaId leave and for anv actIve, unclassIfied emplovment that preceded such a leave The effect of the relevant prOVISIOns of the ESA was described m paragraph 37 rr]he effect of the ESA wIth respect to leaves prIOr to December 20 1990 was and IS that m makmg a calculatIOn of selllontv on the basIs of contmuous actIve servIce credIt must be gIVen for actIve servIce prIOr to a pregnancv leave despIte the mterventIOn of the leave but not for the penod of the leave Itself. ~rhere a penod of emplovment for whIch credIt would otherwIse be gwen IS broken bv a pregnancv leave prIOr to December 20 1990 credIt IS to be gIVen for the portIOn prIOr to the leave but the result IS adjusted to reflect the fact that the perIOd of the leave Itself IS not credIted m computmg the contInuous servIce date In short, absence on statutory pregnancy leave d urmg pre appomtment unclassIfied employment IS treated more favourably than other absences of the same duratIOn m that the leave IS not treated as a break m contmuous serVIce for purposes of determmmg whether credIt should be gIven for serVIce pnor to the leave although the penod of the leave Itself IS not treated as though It were a penod of actIve employment for purposes of calculatmg the CSD [10] For the reasons set out there I concluded m Myers that the combmed effect of the partIes rules and the prOVISIOns of the ESA m effect before 5 December 20 1990 dId not constItute dIscnmmatIOn on the basIs of sex contrary to the Human R[ghts Code I have consIdered whether I should now come to a dIfferent conclusIOn m hght of the decIsIOn of the Court of Appeal m Ontarw Nurses Assocwtwn v Onllw Soldwrs Memonal Hospaal (1999) 42 0 R (2d) 692 I am satIsfied that I should not The basIs, nature and Impact of a calculatIOn of pre appomtment serVIce credIts under the relevant prOVISIOns of these partIes collectIve agreements make It somethmg qUIte dIfferent from the semonty prOVISIOn WIth whIch the arbItrator and the Court were concerned m Onllw Soldwrs Memonal Hospaal I conclude that the combmed effect of the partIes rules and the prOVISIOns of the ESA m effect before December 20 1990 as described here and m the Myers decIsIOn, dId not constItute dIscnmmatIOn on the basIs of sex contrary to the Human R[ghts Code [11] The employer was correct m not gIvmg the gnevor credIt for the penod durmg whIch she had been on matermty leave when It later calculated her CSD As I have noted, that appears to be the only questIOn put before me My dISposItIOn of thIS gnevance should not be taken as approvmg the employer's calculatIOn of the gnevor's CSD m any other respect [12] Ms Farmer's gnevance IS dIsmIssed Dated at Toronto thIS 16th day of October 2000 ~~ ~ , .: . ::"II: .. ., ^, ,~"-..... - . - - ... . :::=::;..:; - --"- Owen V Gray VIce ChaIr 6 Schedule "A" Grievor OPSEU GSB File # File # Bothwell Ruth 97C188 36/97 Calverly Dave 96H253 2214/96 Cook Beatnce 96H051 1907/96 DIerkans Maxme 96H051 1907/96 Durant Sandra 96H026 1934/96 1785/96 Farmer ShIrley Ferencz ShIrley Anne 98C345 0727/98 Horn, Bonme 96H026 1934/96 Levasseur Manlyn 96D983 1609/96 Longpre-SanscartIer Celma Sterhng Karen 96H051 1907/96 Taylor Wayne 96H051 1907/96