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HomeMy WebLinkAbout1996-0836IRWIN97_11_17 ~.,'.. ONTARIO EMPLOYlS DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS t80 DUNDAS STREET WEST SUITE 600, TORONTO ON M5G tZ8 TELEPHONEITELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G tZ8 FACSIMILEITELECOPIE (416) 326-1396 GSB # 0836/96 OPSEU 96B853 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEV ANCE SETTLEMENT BOARD BETWEEN OntarIO PublIc ServIce Employees Umon (Robert Irwm) Grievor - and - The Crown m Right of Ontano (Mimstry of Natural Resources) Employer BEFORE Ken Petryshen V Ice-Chair FOR THE Peggy E SmIth GRIEVOR Counsel, ElIot, SmIth BarrIsters & SolICItors FOR THE Lucy SIraco EMPLOYER Counsel, Legal ServIces Branch Management Board Secretanat HEARING November 17, 1998 - DECISION In a grIevance dated May 28, 1996, Mr Robert Irwm claIms that the Employer contravened the CollectIve Agreement and a Memorandum of Settlement dated March 26, 1993 ("the Memorandum"), by assIgnmg Mr Irwm an mcorrect Contmuous ServIce Date ("CSD") Mr Irwm's grIevance was addressed m the Mimstry of Natural Resources backlog gnevance process. The attempt to resolve the gnevance at medIatIOn was llilsuccessful. An mterested party was served notIce of the heanng and dId appear There was no challenge to the Gnevance Settlement Board's ("the Board's") JunsdIctIon to hear and determme thIS grIevance The Umon claImed that the correct date for determmmg Mr Irwm's CSD IS June 13, 1991 The Employer, on the other hand, asserted that the appropnate date IS March 29, 1993 The partIes requested that I determme whIch one of these two dates IS the correct date for the purpose of determmmg Mr Irwm's CSD and that I remam seIzed of the grIevance m the event the partIes were unable to resolve other Issues Mr Irwm worked as a seasonal employee uhder vanous contracts at the Ha1iburton-Hastmgs FIshenes Assessment Umt commencmg m 1981 In a grIevance dated October 30, 1990, the Umon grIeved that the MinIstry was "Improperly treatmg a number of year-round posItIons as seasonal posItIOns" The Mimstry and the Umon settled that grIevance by executmg a settlement document dated Jllile 13, 1991, -"- 2 commonly referred to as the Roll-Over Agreement, the relevant paragraphs of which state ... as follows 2 The MinIstry shall appomt all of the current mcumbents of posItIons of 43 weeks or longer duratIOn, provIded they have completed at least two seasons of employment as a seasonal unclassIfied employee, or have been mcumbent m the posItIOn for the last 52 weeks of actIve employment, to the classIfied CIVIl servIce effectIve the date of thIS settlement. 6 The Mimstry and the Dmon agree to appomt an equal number of representatIves to aJomt commIttee to resolve anomalIes flowmg from thIS settlement where the duratIOn of the posItIOn or tenure of the mcumbent IS unclear or m dIspute The partIes further agree that there shall be full dIsclosure of all relevant mformatIOn to facIlItate thIS commIttee's operatIOn. 8 The Mimstry agrees that seasonal unclassIfied posItIOns shall not be of 43 weeks or more duratIOn followed by mne or less weeks mactIve employment m any twelve-month penod. The Dmon agrees that the posItIOns below 43 weeks per year are properly charactenzed as seasonal m nature 9 In the event that the MinIstry does not adhere to paragraph 8 above, the provIsIons of thIS settlement shall apply However, the partIes may agree mutually to alternatIve remedIes The partIes subsequently dIsagreed over the mterpretatIOn of paragraph 2 of the Roll-Over Agreement. The MinIstry took the pOSItIon that the 43-week pOSItIon must compnse consecutIve weeks encompassmg June 13, 1991, whereas the Dmon held the VIew that It was suffiCIent If an mcumbent held a pOSItIOn for 43 weeks or longer m a 52- week perIod whIch mcluded June 13, 1991 In a declSlon dated February 25, 1993, the Board determmed that It preferred the Dmon's mterpretatIOn of paragraph 2 See OPSED and Mimstrv of Natural Resources 2181/90 (Barrett) At page 7 the declSlon states Thus we conclude that a fau and reasonable mterpretatIOn of the Memorandum, m accordance WIth Its purpose and mtent, IS to provIde that all mcumbents of a 43 out of 52-week pOSItIOn, who alone have held the - 3 posItIon durmg the year precedmg or encompassmg the settlement, should have the benefit of paragraph 2 of the Memorandum. - The Roll-Over Agreement essentIally defmes two cIrcumstances m whIch seasonal employees can be "rolled over" from the unclassIfied to the classIfied servIce If an unclassIfied employee as of June 13, 1991 meets the condItIons m paragaraph 2, the employee wIll be appomted to the classIfied servIce effectIve June 13, 1991 GIven the mterpretatIOn of paragraph 2 m declSlon 2181/90, It IS suffiCIent that the mcumbent occupy the pOSItIOn for at least 43 out of a 52-week penod as of June 13 1991 Paragraphs 8 and 9 of the Roll-Over Agreement deal WIth SItuatIOns subsequent to June 13, 1991 In paragraph 8, the MinIstry agrees that seasonal unclassIfied pOSItIOns shall not be 43 weeks or more m duratIOn many 12-month penod. If the Mimstry does not adhere to paragraph 8, "the prOVIsIOns of the settlement apply"and paragraph 9 goes on to provIde that the partIes may agree mutually to alternatIve remedIes Paragraph 6 of the Roll-Over Agreement provIdes for the creatIon of an anomalIes commIttee to deal WIth dIsputes concernmg the duratIOn of the pOSItIOn or tenure of the mcumbent. Mr Irwm was not IdentIfied as someone for the anomalIes cormmttee to deal WIth. It IS rumecessary to reVIew all ofMr Irwm's classIfied employment hIStOry Suffice It to say that Mr Irwm had seasonal contracts as an Assessment Umt TechnICIan m the RT-2 claSSIficatIOn covermg the perIods Apn129, 1991-November 1, 1991, May 1, 1992-0ctober 30, 1992 and November 24, 1992-March 5,1993 Mr lrwm was not - 4 recalled to perform an Assessment Umt project between January 5, 1992-Apnl 30, 1992 - On January 17, 1992, he grIeved the Employer's declSlon not to recall hIm. The partIes settled the gnevance by executmg the Memorandum dated March 26, 1993 The substance of that Memorandum reads as follows Memorandum of Settlement The partIes agree to the followmg terms as full and [mal settlement of the above-noted gnevance dated January 17, 1992, wIthout precedent and wIthout prejUdICe to thIS or any other matter 1 The Mimstry and the Umon agree that m accordance WIth paragraphs 8 and 9 of the Memorandum of Settlement, GSB #2181/90, the Gnevor shall be appomted to the claSSIfied servIce and under ArtIcle 24 of the CollectIve Agreement shall be assIgned to the pOSItIon ofFIshenes Assessment Umt TechnICIan, claSSIfied at the RT-21evel effectIve March 29, 1993 The pOSItIOn IS presently located at the Haliburton-Hastmgs FIshenes Assessment Umt. 2 The Umon and GrIevor hereby WIthdraw the above-noted grIevance and releases the Mimstry from all other claIms related to the unclassIfied employment ofMr Irwm, hIS appomtment to the claSSIfied servIce and from the events gIVmg rIse to thIS grIevance Shortly after he commenced employment m the claSSIfied servIce, Mr Irwm receIved a senes of three seasonal converSIOn sheets from the Employer All three were prepared by a core-pay clerk, WIth the final one venfied by a supervIsor The first sheet based the CSD on the date of March 29, 1993 After Mr Irwm adVIsed the Employer that thIS date was mcorrect, a second converSIOn sheet was prepared countmg backwards from June 13, 1991 Smce Mr Irwm was not satIsfied WIth the hours used to arnve at the CSD, a thud converSIOn sheet was prepared. The thud and final converSIOn sheet, the one venfied by the supervIsor, also used the date of June 13, 1991, and arnved at a CSD acceptable to Mr Irwm. GIven that he achIeved hIS obJectIve, Mr Irwm WIthdrew an -- 5 applIcatlOn he had made to the anomolIes comnuttee and dId not IdentIfy hImself as a - person affected by declSlon 2181/90 Mr.Irwm filed hIS grIevance when a semonty lIst posted m the Sprmg of 1996 dIsclosed a dIfferent CSD The two Umon WItnesses, Mr Irwm and hIS wIfe, an officer of the Local Umon, gave eVIdence oftheu mtentlOn and theIr dIscuSSlOns WIth Umon counsel when negotIatmg the Memorandum whICh resulted m Mr Irwm becommg a classIfied employee. I dId not find thIS testtmony to be of any aSSIstance. EVIdence of mtentlOn of one party to an agreement ca.hrrot mfluence the mterpretatlOn of the Memorandum. In any event, as I noted at the heanng, the Memorandum IS not ambIguous and must be mterpreted on the baSIS of ItS language alone The Umon submItted that the effect of the Memorandum was to recognIze that Mr Irwm should have been recalled to work between January 5, 1992 and Apn130,1992, WIth the result that hIS Clfcumstances fell wIthm those addressed by the Roll-Over Agreement. Accordmgly, It was argued that the appropnate date IS June 13, 1991 In the alternatIve, the Umon argued that the Employer IS estopped from advancmg ItS pOSItIon havmg regard to the representatlOn It made on the thud converSlOn sheet that June 13, 1991 was the correct date The Umon argued that Mr Irwm relted on thIS representatlOn to hIS detnment because he then WIthdrew hIS appl1catlOn to the anomol1es corrumttee and dId not find It necessary to adVIse the Unron that he was affected by decIslOn 2181/90 6 The Employer argued that the correct date IS March 29, 1993, the date Mr . Irwm was appomted to the classIfied servIce In ItS VIew, Mr Irwm dId not meet the condItIOns of paragraph 2 of the Roll-Over Agreement whIch IS the only way to obtam the June 13, 1991 date The Employer also argued that the CIrcumstances here do not support an estoppel. The Employer IS essentially correct m ItS pOSItIOn that the answer to thIS dIspute can be found m the Memorandum WhICh settled Mr Irwm's recall gnevance In that Memorandum, the partIes agreed that Mr Irwm shall be appomted to the classIfied servIce effectIve March 29, 1993, m accordance WIth paragraphs 8 and 9 of the Roll-Over Agreement. If the partIes were of the VIew that Mr Irwm' S CIrcumstances met the condItIOns of paragraph 2 of the Roll-over Agreement, the prOVISIOn whIch clearly provIdes for the June 13, 1991 date, they could have eaSIly worded the Memorandum to reflect thIS VIew Probably because Mr Irwm dId not met the 43-week out of 52-week test as of June 13, 1991, the partIes recogruzed that Mr Irwm's CIrcumstances fell wIthm those addressed by paragraph 8 Assummg hIS recall gnevance succeeded, Mr Irwm dId not occupy a seasonal unclassIfied pOSItIOn for at least 43 weeks m a 52-week penod untIl 1992 As noted earlIer, paragraph 9 prOVIdes that the Roll-Over Agreement shall apply m the event that the Mirustry does not adhere to paragraph 8 I agree WIth the Employer's submISSIOn that the partIes could not have mtended that a seasonal employee appomted to the claSSIfied servIce as a result of the Employer's fmlure to adhere to paragraph 8 would - 7 obtam an appomtment date of June 13, 1991 The partIes dId not specIfically provIde m paragraph 9 that the appomtment date m such cucumstances would be June 13, 1991, as they dId m paragraph 2 In addItIOn, It IS unlikely that the partIes would have mtended that a seasonal employee hued after June 13, 1991 would obtam a June 13, 1991 appomtment date If the Employer dId not adhere to paragraph 8 The mapplIcabIlIty of paragraph 2, as recogmzed by the partIes, and the above mterpretatIOn of paragraph 9 compel me to the conclusIOn that the correct date to use as a basIs for determmmg Mr Irwm's CSD IS March 29,1993 The partIes agreed m the Memorandum that Mr Irwm would begm hIS classIfied service as of March 29, 1993, and wIthout the benefit of a deemed appomtment date from the Roll-Over Agreement, It IS thIS date that must be used to calulate Mr Irwm's CSD The facts m thIS case do not establIsh an estoppel. Although the Employer dId represent m the final seasonal converSIOn sheet that the correct date was June 13, 1991, the eVIdence does not establIsh that Mr Irwm relIed on thIS representatIOn to hIS detnment. As a result ofthe representatIOn Mr Irwm dId not pursue hIS applIcatIOn to the anomolIes commIttee and dId not pursue the matter after declSlon 2181/90 was Issued. All he lost was the OppOrtunIty to pursue the Issue further GIven the facts and my mterpretatlOn of the Roll-Over Agreement, It IS unlIkely Mr Irwm would have succeeded m obtammg the June 13, 1991, date from the anomolIes COIllimttee or from any other forum. In my VIew, It has not been establIshed that the mIssed OpportunItIes to advance the Issue because of the Employer's representatIOn caused Mr Irwm any true detnment. - , 8 Before concludmg, It IS worth notmg that If the correct date had been June 13, 1991, the hours worked on the relevant contracts pnor to that date would be used for calculatmg the CSD In other words, hours worked on relevant contracts after June 13, 1991 would be Irrelevant. F or the foregomg reasons, I declare that the correct date to use as a basIs for determmmg Mr Irwm's CSD IS March 29, 1993 Further to the partIes' request, I wIll remam seIzed of the grIevance should the partIes be unable to resolve any remammg Issues m dIspute Dated at Toronto, thIS 19th day of January, 1999 (e~ ) " 1 1 cT1.j~~ Ken Petryshen - VIce-Chau - ONrARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'OwrARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT "" BOARD DES GRIEFS ISO DUNDAS STREET WEST, SUITE fJOO, TORONTO ON MSG 1Z/J TELEPHONEITELEPHONE (416) 32~-1388 180. RUE DUNDAS OUEST, BUREAU BOO, TORONTO (ON) MSG 1Z8 FACSfMILEITELtCOPIE (415) 325-13gcs GSB 11 908/96 OPSEU # 96B887 IN THB MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (pezzutti) Grievor - and - the Crown in Right of ontario (Ministry of Transportation) Employer BEFORE R.J Roberts Vice-Chair FOR THE G. Leeb UNION Grievance Officer ontario Public Service Employees Union FOR THE E McKnight EMPLOYER Staff Relations Advisor Ministry of Transportation HEARING November 4, 1997 - 1 . AWARD On June 19, 1996, the gnevor, Ms. Isabel PezzutI, filed a grievance claIm10g that she dId not receIve 16 weeks' notice ofterm1OatIOn of her contract, as required by the Employment Standards Act, because the Employer had mcluded 10 Its calculatIOn of her notice penod the five weeks of the OPS stnke that ended on March 31, 1996 It appeared to be common ground that dur10g the penod of the strike, no work was avaIlable to the grievor On July 25, 1996, the Grievance Settlement Board issued Its award 10 Re Maxwell and Ministry of Citizenship, Culture and Recreation (1996), G S.B No 951/96 (Roberts), 10 WhICh It was held that an employee in SImilar cIrcumstances to the gnevor was entitled to "16 weeks of wages 10 heu of notice, mcludmg 2% 10 heu of benefits." Id., at 6 On the baSIS of thIS award, the UnIon claImed that the gnevor was entitled to the same measure of compensatIOn for the five weeks of work 10 heu of notice that she mIssed because of the stnke. The employer dId not dIspute the merits of thIS claim. Rather, the employer submItted that the claim was barred because of undue delay Apparently Ms. PezzutI' s gnevance was not brought to the attentIOn of responsible persons at Management Board Secretanat untIl a week or so before the hearmg. Counsel for the Employer noted that followmg the strIke, the partIes had put mto place an elaborate procedure to gIve the employer notIce of all of Its habIlItIes. Because p 2 l' the umon had not followed thIS procedure and come forward wIth Ms. PezzutI' s gnevance wIthm a short tIme after the issuance of the Maxwell award, It was submItted, the gnevance must be rejected as untimely In support of this submIssion, counsel for the employer referred to Re Union Grievance and Management Board Secretariat (1997), G.S.B No 70/97 (FIsher) In that case, the learned VIce ChaIr stated, "Certamty, m labour relatIOns, IS a very Important virtue, espeCially when It come to the ImplementatIOn of a negotIated settlement." Id., at 4 ThIs meant, counsel for the employer submItted, that there was a pomt in time by whIch the employer was entitled to know ItS total lIabIlity That pomt had passed before Ms. PezzutI's gnevance was brought to the attentIon of Management Board. There may well be cases m whIch a gnevance mIght be barred by time lImIts, the eqUItable doctrine of laches, and the lIke Here, however there would appear to be msufficIent eVIdence to support such a claim. The gnevance was filed m a timely manner, on June 19 1996 Accordmg to the submISSIOn of counsel for the umon, It was gIven an OPSEU file number, sIgmfymg that It went through an expedIted gnevance process negotIated between Management Board Secretariat and the union. InformatIon supplIed to counsel for the umon, I was l11formed, mdIcated that shortly after Maxwell issued, the umon forwarded the gnevor's name to Management Board as a person who should be paid m accordance WIth that award. On thIS record, I cannot conclude that the apparent error that caused the gnevance herem w- 3 ~ to fall by the wayside untIl now was that of the umon and not the employer As a result, the claim of undue delay that was made by the employer cannot be susta1Oed. The gnevor must be paId five (5) weeks of wages 10 heu ofnotlCe, 1Oclud1Og 2% 10 heu of benefits, 10 accordance With the Maxwell award. Dated at Toronto, Ontano, this 17th day of November, 1997