Loading...
HomeMy WebLinkAbout1996-0953RADLEY96_08_12 -. ONTARIO EMPLOy/tS DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONEITELEPHONE (416) 32~-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILEITELECOPIE (416) 326-1396 GSB # 953/96 OPSEU # 96E616 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Radley) Grievor - and - The Crown in Right of Ontario (Ministry of Community & Social Services) Employer BEFORE R J Roberts Vice-Chairperson FOR THE G Leeb GRIEVOR Grievance Officer ontario Public Service Employees Union FOR THE C Nikolich EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING July 25, 1996 - 1 AWARD At the outset of this arbitratiOn, the parties mformed me that the gnevance herem was a test case whose result would be applied to about one hundred other sImilar grIevances. All of these gnevances, it seems, were filed by unclassified contract employees who were termmated on or after March 31 1996, after havmg the five weeks of the strIke counted as part of their defined contract pen ods The union claimed that this was contrary to the prOViSiOns of article 1.3 of the Return to Work Protocol. The employer claimed that It was not. For reasons which follow, the positiOn of the employer IS accepted and as a result the gnevance must be dismissed. ArtIcle 1 3 of the Return to Work Protocol reads as follows 1.3 Non-classified contracts will not be termmated because the affected employees were engaged m a stnke The Employer agrees that withm 30 days followmg ratificatiOn, it shall advise the Umon, through the CERC of the status of any non-classified contracts that were not renewed dunng the strike, or withm the 15 days Immediately followmg ratificatiOn. An) disputes ansmg out of this article shall be referred to arbitratiOn m - ~ 2 accordance wIth artIcle 27 10 A.I (Group GrIevance), 27 18 and 27 19 Both counsel made commendable submIsSIOns regardmg the way m whIch thIS proVISIOn ought properly to be mterpreted and apphed. Counsel for the umon submItted that thIS proVISIon envlSloned ensurIng that unclassIfied employees would not suffer a loss of mcome as a result of the strIke It recogmzed, counsel submItted, that m a stnke SItuatIOn, unclaSSIfied employees were m a no-wm SItuatIOn. If they respected the strike and WIthdrew theIr serVIces, they lost wages that were never to be recovered. They also rIsked not havmg theIr contracts renewed m retahatIOn for theIr partICIpatIon m the strIke To guard agamst thIS, counsel for the umon contmued, the partIes drafted artIcle 1.3 of the Return to Work Protocol to ensure that unclaSSIfied employees would not lose five weeks of pay because of the strike That, It was submItted, was what the partIes meant when they Said that "non-classIfied contracts WIll not be termmated because the affected employees were engaged m a strIke" They meant that the five weeks of the strIke would not be counted toward theIr defined contract penods. Counsel for the umon also CIted several reasons why thIS mterpretatIOn should be preferred. These mcluded. (1) The money had already been set aSIde by the employer to pay these employees - 3 when then contracts were first executed. To say that the employer dId not have to pay them for the five weeks of the stnke would be to gIve the employer a wIndfall, (2) From the perspectIve of the gnevor hereIn, she and the employer SIgned a contract for a defined penod over whIch she expected to receIve a certaIn amount of total compensatIon. If the gnevor were demed compensatIOn for the five weeks of the stnke, counsel submItted, the Board would frustrate the expectancy of the gnevor under thIS contract; and, (3) The MInIstry of the Attorney General had already Issued a BulletIn addressIng the contracts of unclaSSIfied employees that was m lIne WIth the mterpretatIOn of artIcle 1 3 of the Return to Work Protocol urged by the umon. ThIs bulletIn read as follows To All MAG UnclassIfied Employees Please be advIsed that If you have receIved notIce of termInatIOn of your contract pnor to the stnke, your notIce penod WIll be suspended untIl the stnke IS over At that tIme you WIll work the remaInder of your notIce penod and a new contract WIll be drawn to reflect thIS tIme If you dId not receIve notIce of termInatIOn pnor to the stnke and your contract expIres dunng the stnke, It WIll be renewed for a penod of tIme to be determIned. Please contact your manager for clanficatIOn. MInIstry of the Attorney General March 1996 ~, / 4 Counsel for the employer, on the other hand, submItted that the partIes Intended to do no more than to draft a "no-repnsal" provIsIon for the protectIOn of unclassified employees when they drafted artIcle 1.3 of the Return to Work Protocol The Idea, It was submItted, was to protect unclassified employees from lOSIng theIr Jobs because they partiCipated In the strike ThIS was the reason why artIcle 1.3 expressly stated that then contracts "wIll not be termInated because" they engaged In the stnke The reference to termInatIOn, It was submItted, clearly expressed the narrow IntentIOn of the partIes to protect unclassified employees from beIng dIsmIssed, dIscharged or laid off Just because they wIthdrew theIr serVIces durmg the strike If the partIes had mtended to extend the contracts of unclassified employees for the penod of the stnke counsel for the employer submItted, they would have Said so wIthout any reference to termInatIOn. In thIS respect, counsel referred to other provISIOns of the Return to Work Protocol that dIrectly followed artIcle 1 3 and expressly provIded that time spent on stnke "shall not affect" specific calculatIOns These Included calculatIOn of "contInUOUS dlsablhty" (artIcle 1 4), calculatIOn of qualIficatIOn for Long Term Income Benefits (artIcle 1 5), and, In certaIn CIrcumstances, retIrement dates or entItlements (artIcle 1 6) If the partIes had Intended that tIme spent on strike "shall not" count toward the defined contract penods of unclassIfied employees, counsel argued, they would have Said so In a SImIlar fashIOn. They would not have adopted the wordIng found In artIcle 1 3, wIth ItS express reference to termmatIOn. After gIVIng senous conSIderatIOn to the submIssIOns of counsel for both partIes, I find that I - 5 must prefer the submIssIOn of counsel for the employer It would stretch the language of artIcle I 3 of the Return to Work Protocol too far to Impress upon It the dual meamng urged by the umon, i e that It IS both a "no-repnsal" and "no-lost-compensatiOn-due-to-stnke" proVISIOn. I accept that the express reference to protectiOn from "termmatiOn" m artIcle I 3 restncts Its functiOn to that of a "no repnsal" proVIsIOn. If the partIes had mtended to protect unclassIfied employees from losmg compensatIOn because they respected the stnke, they would have gone farther and saId so That, It seems, IS eVIdent from the other prOVISIOns of the Return to Work Protocol that clearly express thIS mtentiOn WIthout any reference to ternunatIOn. It IS recogmzed that, as counsel for the umon pomted out, the Mimstry of the Attorney General Issued a bulletm advlsmg ItS unclassIfied employees, inter alia, that If they receIved notIce of termmatIOn pnor to the stnke, tIme spent on stnke would not count toward theIr notIce penods There was no mdlcatIOn m thIS bulletm nor m the eVIdence at the hearIng, however, that the bulletm constItuted an mterpretatIOn of artIcle I 3 ofthe Return to Work Protocol Indeed, thIS would seem to be an unlIkely mference, gIVen that the Return to Work Protocol was not executed by the partIes untIl March 29 1996, Just two days before the begmnmg of Apnl. The bulletm, It WIll be recalled, was dated March, 1996 It also seems undemable that, as counsel for the umon submItted, several eqUitable reasons eXIst for attemptmg to ensure that the advent of the strIke not cause unclassIfied employees to lose five weeks of compensatIOn that they had antICIpated receIvmg under theIr contracts ThIS would have been a more than appropnate matter for the partIes to have addressed m the Return to Work _. - 6 Protocol All that has been concluded here IS that ArtIcle 1 3 of the Protocol cannot be Interpreted as If It were such a provlSlon. The submIssIon of the employer upon the scope of artIcle 1 3 must prevaIl and, as a result, the gnevance must be dIsmIssed. ~ Dated at Toronto, Ontano, thIY2 day of August, 1996 .