HomeMy WebLinkAbout1996-0103WILSON97_08_19
ONTARIO EMPLOYES DE LA COURONNE
CROWN EMPLOYEES DE L'ONTARIO
1111 GRIEVANCE COMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST, SUITE BOO, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (418) 328-1388
180, RUE DUNDAS OUEST BUREAU 800, TORONTO (ON) M5G 1Z8 FACS/MILE/TELECOPIE (418) 328-13ge
GSB # 103/96
OPSEU # 96B407
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Wilson)
Grievor
- and -
the Crown in Right of Ontario
(Ministry of Health)
Cobourg-Lakeshore Ambulance Service
Employer
BEFORE S L. Stewart Vice-Chair
FOR THE N Roland
UNION Counsel
Roland & Jacobs
Barristers & Solicitors
FOR THE H Oldham
EMPLOYER Counsel
Fraser & Beatty
Barristers & Solicitors
HEARING June 3, 1997
DECISION
In a grievance dated March 31, 1996, Mr M. Wilson claims a
violation of Article 11 02 and Schedule B of the Collective
Agreement There was no objection to my jurisdiction to hear an
determine the grievance.
The parties were able to agree to the relevant facts. Mr.
wilson was hired as a part-time ambulance attendant in May, 1992.
He obtained a full-time position on June 26, 1995 The dispute
between the parties relates to Mr. Wilson's seniority as a full-
time employee
The following provisions of the Collective Agreement are
relevant to the dispute between the parties
Schedule liB"
1 Part-time employees are those who work twenty-four
(24) hours or less per week for seven (7) or more weeks
having regard to.
(a) the seven (7) weeks preceding the date in
question; and
(b) the six (6) weeks following the date in
question
2 Part-time employees shall not be employed if such
will directly result in the lay-off of a full-time
employee
3 The probationary period for part-time employees
shall be one thousand and forty (1,040) hours The
employment of such employees may be terminated at any
time during the probationary period, without recourse
to the grievance procedure
4 Part-time employees shall accumulate seniority at
the rate of one ( 1) year per thousand, nine hundred and
twenty (1,920) hours.
2
5 Qualified part-time employees will be considered
for full-time vacancies ahead of new employees, in
accordance with Article 11 03
6 The lay-off and recall of part-time employees
shall be done in accordance with Article 11.03
7. Articles 11.04 and 11 05 shall apply to part-time
employees.
8. The hours of work for part-time employees shall be
as determined by the Employer, subject to Articles
12 05, 12.08, 12 09 and 12.10.
9 Overtime, Paid Holidays and Vacations for part-
time employees shall be in accordance with the
Employment Standards Act (Ontario).
10. The Employer will supply part-time employees with
two (2) shirts which are to be kept clean and pressed
by the employee.
11 Except as provided in this Schedule "B", the
following Articles do not apply to part-time employees:
(a) Article 11 - Seniority
(b) Article 12 - Hours of Work
(c) Article 13 - Overtime
(d) Article 14 - Paid Holidays
(e) Article 15 - Vacations
(f) Article 19 - Leave of Absence
(g) Article 20 - Uniform and Clothing Allowance
(h) Article 21 - Employee Benefits
12 Paragraphs 2-11 inclusive of this Schedule liB"
apply to students hired for summer relief
The relevant provisions of Article 11 provide as follows:
11 01 Seniority is defined as the length of full-
time service with the Employer and shall be used in
accordance with the terms of this Article to determine
preference for promotion, lay-off and recall The
Employer shall maintain a seniority list showing the
date on which each employee's service commenced and
shall post such list at both bases not later than May
1st of each year.
11.02 Newly hired employee(s) shall be on a
probationary basis for a period of six (6) months from
3
the date of hiring. During the probationary period,
employees shall be entitled to all rights and benefits
of this Agreement, except with respect to discharge
The employment of such employees may be terminated at
any time during the probationary period, without
recourse through the grievance procedure. After
completion of the probationary period, seniority shall
be effective from the date of hiring
11 03(a) In the case of promotion (other than
promotions outside the bargaining unit) and demotions
(other than disciplinary demotions), the following
factors shall be considered:
(i) seniority;
(ii) skill, competence, efficiency and
ability.
Where, in the judgment of the Employer, the
factors in (b) are relatively equal, factor (a)
seniority, shall govern, provided that this judgment
shall not be exercised in an arbitrary or
discriminatory fashion.
(b) In all cases of lay-off and recall, the last
person hired shall be the first laid off and the last
laid off shall be the first recalled. Employees
holding a Fundamental of causality Care degree must
attempt to requalify by December 31, 1984.
(c) Job postings: When a vacancy occurs or a new
position is created, the Employer shall post notice of
the position at both bases, for a minimum of ten (10)
days, so that all members will know about the vacancy
or new position Such notice shall contain the
following information nature of position,
qualifications, required knowledge and education,
skills and wage range
11.04 Seniority shall accumulate in the following
circumstances only
(a) when off work due to lay-off, sickness or
accident in which case seniority will
continue to accumulate for a period of six
(6) months or the length of the employee's
seniority, whichever is the shorter;
(b) when off work due to personal leave of
absence, then seniority will continue to
accumulate for the first calendar month of
such leave;
4
(c) when absent on vacation with payor on
statutory holidays,
(d) when actually at work for the Employer.
11.05 seniority shall terminate and an employee
shall cease to be employed by the Employer when he
(a) voluntarily quits employment with the
Employer;
(b) is discharged and is not reinstated through
the grievance procedure or arbitration;
(c) is off work for a continuous period of twelve
(12) months, or the length of his seniority,
whichever is the shorter;
(d) fails to report for work within three (3)
working days after being notified by the
Employer of recall, by registered mail;
(e) fails to return to work upon the termination
of authorized leave of absence unless there
is an acceptable reason;
(f) accepts gainful employment while on a leave
of absence without first obtaining the
consent of the Employer in writing;
(g) is absent from work for three (3) consecutive
working days unless absent due to verifiable
illness or unless such absence is approved by
the Employer. The employee is expected to
notify the Employer in the event that he is
not able to report for work at his scheduled
starting time
11 06(a) Severance: An employee with five (5) years
service on separation from employment shall be entitled
to receive on separation, severance pay of one (1)
week's pay per year of service, up to a maximum of
twenty-six (26) weeks' pay.
(b) Such severance pay shall only be provided in
cases of separation from employment due to
(i) death of the employee,
(ii) indefinite layoff, in which
case the employee must waive
his right to recall from
layoff, in writing, as a
condition of receiving
severance pay. Indefinite
layoff includes a period of
thirty-five (35) consecutive
weeks,
(iii) retirement
5
11.07 In the event that an employee in a
supervisory or confidential position beyond the scope
of this Agreement is placed in a position within the
scope of this Agreement, he shall retain all seniority
he has previously acquired and shall have added thereto
the seniority accumulated while serving in such
supervisory or confidential capacity.
The part-time seniority list sets out seniority on the basis
of hours while the full-time seniority list sets out seniority on
the basis of date of hire It was agreed between the parties
that another employee, Mr. Chris Brown, who was initially
employed as a full-time employee and is now employed as a part-
time employee, was credited with the seniority he accumulated
during his full-time service upon his transfer to part-time
status.
Mr Roland argued that it is apparent from a review of the
provisions of the Collective Agreement as a whole that the
parties intended for part-time employees to retain their
seniority upon transfer to a full-time position He noted that
the Schedule B Article 4, refers to "seniority", not part-time
seniority. Mr Roland emphasized that this is a situation where
the Collective Agreement covers both full-time and part-time
employees. In his submission, there is no reason for the parties
to have provided for a conversion of hours to years unless it was
contemplated that a bridge was being built between part-time and
full-time employees, to be utilized in the situation that has now
presented itself in the case of Mr Wilson In those
6
circumstances, it was argued, the formula is employed to convert
the hours into an equivalent date of hire In Mr. Roland's
submission, the Union's position is not inconsistent with B.11,
which provides, inter alia, that the seniority provisions of the
full-time agreement do not apply to part-time employees. The
reason it is not inconsistent, it was argued, is that Mr. Wilson
is not seeking to assert his seniority while he has status as a
part-time employee It is only upon becoming a full-time
employee that he seeks to be credited with seniority he has
accumulated as a part-time employee in accordance with the
formula established by the part-time agreement.
Mr. Roland argued that the Union's interpretation was
enhanced by the provisions of Article 11.07, which provides for
the retention and accumulation of seniority of persons outside of
the bargaining unit. It is unlikely, in his sUbmission, that the
parties intended to protect persons outside of the bargaining
unit while employees who had accumulated seniority in the
bargaining unit would lose it, while still retaining employment
in a bargaining unit position Indeed, it was emphasized, when
the situation arose in relation to a full-time employee
transferring into the part-time bargaining unit, the seniority
that had accumulated was retained
Mr Roland referred me to Re Dominion store Ltd. (Sarnia)
and United Steelworkers, (1983) 9 LAC (3d) 238 (Roberts) In
7
that case the collective agreement specifically provided for the
carryover of seniority when moving from part-time to full-time,
however, the Collective Agreement was silent with the respect to
the movement of full-time employment to part-time status The
issue in that case was whether an employee was entitled to retain
seniority in those latter circumstances The arbitrator's view
was that restricting full-timers from carrying over seniority
when they became part-timers while part-timers were allowed to
take their seniority to full-time positions would be "manifestly
unjust". The arbitrator concluded that such a term ought to be
implied and at pps 241 to 242 the arbitrator makes the following
comments with respect to this matter
A term can only be implied into a contract if
it can confidently be said that at
negotiations the parties in replying to the
question, "What will happen in such a case",
would have stated, "Of course, so and so will
happen; we did not trouble to say that; it is
too clear."
It seems to me that the case before me is one
of those rare instances which meets the
requirements of the above test In the light
of the express language that the parties had
already negotiated to cover the carry-over of
seniority for an employee moving from part-
time to full-time, it seems only logical that
if they had been asked about the carry-over
of seniority for an employee moving from
full-time to part-time, the least that they
would have replied would have been "Of
course, the employee will carryover a
reasonable amount of seniority; we did not
trouble to say that; it is too clear "
Seniority, after all, is a deeply imbedded
feature of the collective bargaining process
and a matter of major concern in any
collective agreement It cannot be thought
that in the light of the express concern of
the parties for the seniority of employees
8
moving from part-time to full-time they
cavalierly would have ignored the more
solidly entrenched seniority rights of
employees moving in the opposite direction.
It was Mr. Roland's alternative submission that if I rejected the
Union's position in relation to the interpretation of the
provisions of the Collective Agreement that he urged upon me, I
should follow the approach in this award and imply a term in the
Collective Agreement
On behalf of the Employer, Mr. Oldham emphasized the
language of Article 11 01 and argued that the parties have
clearly and specifically defined seniority as having its basis in
full-time employment He argued that the language should be
given its plain meaning. In his submission, given the greater
attachment to the workforce of full-time employees, it is not
surprising that they would be granted greater benefits than part-
time employees Mr. Oldham argued that it would be surprising,
however, if the relative seniority of full-time employees could
be changed and disrupted by virtue of a part-time employee being
able to utilize seniority accumulated as a part-time employee
when attaining full-time status.
Mr Oldham agreed with Mr. Roland that Article 4 of Appendix
B provides a "bridge", but disagreed with his argument that it
could not be given effect unless it had application to full-time
seniority Mr Oldham referred me to Article 11 04 and 11.05 of
9
the Collective Agreement which, by virtue of Article B 7, apply
to part-time employees It is to those provisions, it is argued,
that the "bridge" is referable
Mr Oldham also argued that the reference to retention and
accumulation of seniority of persons outside of the bargaining
unit in Article 11 07 indicates that the parties have considered
this kind of issue and thus that had the parties intended the
result that the Union urges, they would have done so
specifically.
Other arguments were put forward by Mr Oldham, but given
our ultimate conclusion it is unnecessary to address them
In reply, Mr Roland argued that Mr. Oldham's position in
relation to Schedule B, Article 4 applying to Articles 11.04 and
11.05 is incorrect, as its proper application is in relation to
Mr Wilson grieving in the status of a full-time employee Mr
Roland acknowledged that full-time employees are given greater
rights than part-time employees, however he argued that this
matter ought not to diminish the rights part-timers are afforded,
including, in his submission, accumulated seniority With
respect to the specific reference to full-time employees in
Article 11 01, Mr Roland argued that this was the case because
the provision has primary application to full-time employees. In
his submission, however, it is also applicable in the case of a
10
part-time employee attaining status as a full-time employee, who,
it is argued, is entitled to his or her seniority, in accordance
with the formula established under the Collective Agreement
Mr. Roland was very persuasive in the arguments that he
advanced. However, it is my view that to accept the Union's
position would result in departing from the clear language of the
Collective Agreement Article 11.01 clearly and specifically
provides that seniority is defined as the length of full-time
service with the Employer. The parties could have chosen to
express themselves in terms of service, without modification, but
did not do so. This leads to the clear inference that they
intended to exclude part-time service in the determination of
seniority for full-time employees While such an inference could
be rebutted by language elsewhere in the agreement, I am unable
to accept Mr Roland's "bridge" argument as a basis for such a
rebuttal I agree with Mr Oldham that the conversion formula
has application elsewhere, that is, as a basis for the
calculations contemplated in 11.04 and 11 05 of the Collective
Agreement which apply to part-time employees. In my view, Mr
Roland's submission that the "bridge" is intended to have
application when the employee attains full-time status and that
it is from the perspective of a full-time employee that the
language must be interpreted to allow part-time seniority to
apply when the employee is employed on a full-time basis, is a
position that cannot be reconciled with the clear and specific
11
language of Article 11 01 In my view, the provisions of Article
11 07 do not provide a basis for departing from the clear
language of Article 11 01
The fact that a full-time employee was credited with
seniority based on his full-time service upon transfer to part-
time status does not cause me to question the foregoing
conclusions based on the language of the Collective Agreement
Article 4 of Schedule B, providing for accumulation of seniority
for part-time employees, does not specifically provide that it is
defined as part-time service, unlike Article 11.01, which
specifically provides for seniority based on full-time service
I am also unable to accept Mr. Roland's alternative argument
in relation to Re Dominion store Ltd. (Sarnia) and united
Steelworkers, supra In that award the arbitrator referred to
"the more solidly entrenched seniority rights" of full-time
employees in relation to part-time employees as a basis for
concluding that since the parties had provided for the transfer
of seniority where there was a change of status from part-time to
full-time, they must have intended that seniority would carry
over in a transfer from full-time to part-time Given that the
preferential treatment of full-time employees is a common feature
of collective agreements, I am unable to conclude that less
advantageous treatment of part-time employees could not have been
the intention of the parties
12
For these reasons it is my view that a violation of the
Collective Agreement has not been established and the grievance
is therefore dismissed.
Dated at Toronto, this 19th day of August, 1997.
)t)"tu.oru-k
S.L. stewart, Vice-Chair