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HomeMy WebLinkAbout1996-1013FRECKLETON97_09_18 -- I ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT , REGLEMENT BOARD DES GRIEFS 160 DUNDAS STREET WEST SUITE 600, TORONTO ON M5G tZ6 TELEPHONE/TELEPHONE (416) 32G-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G tZ8 FACSIMILE/TEUiCOPIE (416) 326-1396 GSB # 1013/96, 1017/96, 1600/96 OPSEU # 960789-92, 960793, 96G190 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Freckleton et all Grievor - and - the Crown in Right of ontario (Fleetwood Ambulance Service) Employer BEFORE S L Stewart Vice-Chair FOR THE M Keys UNION Grievance Officer ontario Public Service Employees Union FOR THE E Keenan EMPLOYER Counsel Mathews, Dinsdale & Clark Barristers & solicitors FOR THE C Venne THIRD PARTY L Reynolds R Lapierre HEARING July 8, 16, 1997 - DECISION There were a number of grievances before the Board, all relating to a requirement that newly arising full-time ambulance positions be held by persons fluent in the French language There was no objection to my jurisdiction to hear and determine the grievances The incumbents were given notice of these proceedings and elected to participate on the first day of hearing. There was no real dispute about the relevant facts Prior to the addition of the French language requirement, full-time positions were offered to part-time employees on the basis of seniority, provided that they had the requisite EMCA training It is the position of the Union that the former practice ought properly to have continued, while it is the Employer's position that it has acted in accordance with its obligations under the Collective Agreement and the French Lanquage Services Act Fleetwood Ambulance is owned and operated by Mr I Ross and services the Hamilton-Wentworth region It is fully funded by the Ministry of Health Mr Ross testified that he attended a meeting convened by the Ministry of Health at which time he was given information about the French Lanquaqe Services Act He testified that he was advised that, pursuant to the Act, a plan would be developed for the provision of ambulance services in -. 2 French Plans were developed as to the timing and percentage of staff required to have facility in French, with the proviso that no current employees would be displaced Mr Ross questioned the application of the legislation to his operations by letter, which was responded to by Ms Priscilla cadieux-Klimpel, French Language Co-ordinator with the Ambulance Services Branch, in a letter dated June 10, 1989 The relevant portion of the letter states as follows The French Language Services Act, 1986 refers to all non-ministry ambulance services as "a non-profit corporation or a similar entity that provides services to the public, is subsidized in whole or part bY public money and is designated as a public service agency II [emphasis in the original] and in as . such directly affects all ambulance services other than those administered by a municipality The Ambulance Act makes reference to the minimum requirement for employment It does not, however, exempt potential applicants from the requirements of other Acts which affect the services It is not appropriate to change all preceding Acts to reflect the requirement of a new law unless it applies universally across the province The French Language Services Act, 1986 only affects 50% of the province (refer to "SCHEDULE" page 18 of the Act for clarification on designated areas) and not all employees in affected services will require the additional skills The criteria for employment is set by the service manager/owner based on the requirements of all government regulations and his/her mandate to provide the best possible service at all times The importance of adopting a well-defined hiring and training policy to meet the requirement of this legislation were discussed in depth at the regional meeting in Hamilton on April 4, 1989 Ambulance services Branch is highly committed to providing equal access to all its services and is actively involved in programs that will address the needs of other minority groups These - 3 initiatives must, however, not deter from our legislated responsibility to the Francophone population or from our primary objective of providing prompt and efficient transportation to health-care facilities A document entitled "strategic Planning Approach for French Language Emergency Services" which was provided to Mr Ross in April, 1996, indicates that lithe Ministry [would] treat all other non-ministry emergency health services as public service agencies, as stated in l(c) of the Act II Mr Ross testified that it was his understanding that his operations were governed by the French Language Services Act He referred to the letter as a directive to comply with the program established pursuant to the Act for providing French language services and testified that he felt that if he did not comply, his licence to operate might be in jeopardy Mr Ross further testified that while he felt that being able to communicate with a person in their mother tongue was an advantage, absent the direction he received from the Ministry of Health he would not have made fluency in French a requirement of the job The grievors and the incumbents testified as to their experiences with the use of French and other languages in the course of their work The incumbents were of the view that their ability to speak French had allowed them to provide better service when it was necessary to communicate with persons whose mother tongue was French The grievors referred to the larger 4 populations of Italian and Portuguese speaking persons in the area and testified as to their use of non-verbal techniques in communicating with persons unable to speak English In accordance with the program developed by the Ministry of Health, staff were given an opportunity to demonstrate fluency in the French language If they were unable to demonstrate fluency at the requisite level, they were given the opportunity to have training at no cost At the time the full-time positions were posted and filed by the bilingual incumbents, none of the grievors possessed fluency in French at the requisite level The French Lanquaqe Services Act, as originally enacted, provided as follows 1 In this Act, "government agency II means, (c) a non-profit corporation or similar entity that provides a service to the public, is subsidized in whole or in part by public money and is designated as a public service agency by the regulations, 5 (1) A person has the right in accordance with this Act to communicate in French with, and to receive available services in French from, any head or central office of a government agency or institution of the Legislature that is designated by the regulations, and has the same right in respect of any other office of such agency or institution that is located in or serves an area designated in the Schedule ( 2 ) Subsection (1) is repealed three years after it 5 comes into force and the following substituted therefor (1) A person has the right in accordance with this Act to communicate in French with, and to receive available services in French from, any head or central office of a government agency or institution of the Legislature, and has the same right in respect of any other office of such agency or institution that is located in or serves an area designated in the Schedule 8 (1) The Lieutenant Governor in council may make regulations, ( a) designating public service agencies for the purpose of the definition of "government agency", (b) amending the Schedule by adding to it (c) designating public service agencies and institutions of the Legislature for the purpose of subsection 5(1), . . (2) Clause (1) ( c) is repealed three years after this Act comes into force The schedule referred to in Section 5 of the Act includes the City of Hamilton which is part of the area serviced by the Employer It was the Employer's position that the French Lanquaqe Services Act is applicable, the effect of which is, as a matter of law, the Employer was required to provide services in the French language On behalf of the Union, Ms Keys argued that these provisions are not applicable Counsel were in agreement that the Employer's operations fall with s l(c) of the French Language Services Act Counsel - 6 were also in agreement that the Employer's operations have not been designated as a public service agency by the regulations Ms Keenan argued that the fact that this designation has not been made by regulation was of no significance on the basis of the repeal and substitution of s 5 (1) of the Act, as set out supra It was her position that the effect was that three years following the effective date of the legislation the Employer was obliged to provide services in French notwithstanding the fact that its operations had not been designated by regulation Ms Keys took issue with this interpretation of the legislation on the basis of the language of the statute I agree with Ms Keys that the language of the statute does not support the analysis urged upon me by Ms Keenan Article l(C), contemplating the designation of a non-profit corporation or similar entity as a government agency by regulation was not repealed and remains an operative provision of the legislation As well, s 8 (a) of the Act specifically contemplates the designation process continuing to take place Moreover, it is apparent from the regulations filed with me at the hearing that the designation process continues Accordingly, I am unable to accept Ms Keenan's submission, on behalf of the Employer, that the French Lanquaqe services Act is applicable to the Employer's operations notwithstanding the fact that it has not been designated by regulation as a government agency as contemplated by the provisions of the Act - . .-- 7 I now turn to the submissions of counsel relating to whether there has been a violation of the Collective Agreement The terms and conditions of employment for part-time employees are set out in a Letter of Understanding, Articles 7 and 8 of which provides that 7 Seniority for part-timers shall accrue on a pro rata basis so that every 2080 hours worked by a part- time employee shall equal one (1) year's seniority for the purpose of reclassification from part-time to full- time This calculation shall be based on all hours worked by the part-time employee since he commenced work for the Ambulance Service 8 All things being equal among the person being considered for a full-time driver attendant position, the Company will give first consideration to a part- time employee Reference was also made to the following provisions of the Collective Agreement which, in accordance with the terms of the Letter of Understanding, are applicable to part-time employees 18 04 In the case of a promotion (other than promotions outside the bargaining unit) and demotions (other than disciplinary demotions) and in all cases of layoff and recall after layoff, the following factors shall be considered ( a) Seniority, (b) Ability and qualifications for the job in question Where, in the opinion of the Company, the factors in (b) are relatively equal, factor (a) , seniority, shall govern In the exercise of its opinion, the Company shall not act in an arbitrary or discriminatory fashion The provisions of this section shall not apply to ~""" 8 temporary layoffs of two (2) days or less However, where such temporary layoff is due to a vehicle breakdown occurring at a company station, it is agreed that employees will be laid off in the following order (1) part-time employees working at such station, (2) employees and supervisors working overtime at such station, (3) the regularly scheduled employees with the least seniority, working at such station I was referred to the following awards Re stormont. Dundas & Glenqarry Board of Education and Canadian Union of Public Emplovees. Local 782 (1986) , 23 LAC (3d) 379 (Weatherill) , Re Cornwall General Hospital and ontario Nurses' Association (1986) , 22 LAC (3d) (Burkett) , Network North and ontario Public Service Employees Union. Local 666, (unreported award dated June 20, 1994) (Lavery), Ministry of Tourism and Recreation and ontario Public service Employees Union (Daly) , 1440/88 (Samuels) , Ministrv of Labour and OPSEU (Giasson) , 2250/87 (Watters) and Ministrv of Transportation & Communications (MacKenzie) 1243/87 (Ratushny) The competing considerations in this kind of case relate to the Union's interests in protecting the seniority rights of employees, rights that are viewed as the cornerstone of collective agreements, and the Employer's interests in exercising ~~ , , 9 its management rights to pursue its legitimate business interests Where the Employer has been able to establish that facility in another language is reasonably related to the duties of a position and its decision to impose such a requirement is made in good faith, the view of arbitrators has been that the Employer's interests must be allowed to prevail I agree fully with this principle As well, I have no hesitation in accepting Ms Keenan's submission that Mr Ross acted in good faith The issue thus becomes whether the necessary "reasonable relationship" has been established on the evidence before me Ms Keenan emphasized the fact that the Employer provides services to an area which includes an area that has been designated as an area entitled to services in French, the preamble to the Act which refers to the recognition of French as an official language and its status as a "historic and honoured language in ontario", and the Ministry of Health's directive to the Employer to provide French language services I agree with Ms Keenan that these are matters of significance, however, these matters all relate to the legislation Mr Ross was clear in his evidence that it was only because he was directed to provide services in French that he implemented the program He did not determine that such a need existed and absent a direction from the Ministry of Health, he would not have made fluency in French a requirement for a full-time position The letter directing Mr Ross to implement the program which is excerpted herein refers to -.' 10 the Act, as does the strategy, which is also excerpted herein The Act provides for and contemplates a specific process for organizations such as Fleetwood Ambulance being required to provide services in French, that being designation by regulation, a process which has not taken place Where the contemplated process has not been followed and there is thus no legal requirement for the Employer to provide such services, it is my view, in light of Mr Ross' evidence, that a reasonable relationship between the requirements of the position and facility in the French language has not been established It would be inappropriate, in such circumstances, to deprive part- time employees of the opportunity to exercise their seniority rights, which, there was no dispute, have operated to allow the senior qualified part-time employee to obtain full-time positions as they become available I note, parenthetically, that had the evidence established that the Employer had been designated as a government agency by regulation I would have had no difficulty with the proposition that the French language requirement was reasonable in all of the circumstances and thus that there was no violation of the Collective Agreement However, on the basis of the evidence that was before me, I agree with the Union's submission that a violation of the Collective Agreement has been established and I so declare The part-time employees who would otherwise have been entitled to the full-time positions in issue on the basis of - I ,. 11 their seniority are to be placed in those positions Ms Keenan submitted that there should be no monetary consequences to the Employer if it were determined that a violation of the Collective Agreement was established, on the basis that it conducted itself in good faith and on the basis of instructions from the Ministry of Health While, as previously noted, I have no hesitation in accepting that the Employer conducted itself in good faith, I agree with Ms Keys that this matter cannot properly form a basis for absolving the Employer of the consequences of a breach of the Collective Agreement It is unclear which individuals sustained losses as a result of being rejected for a full-time position on the basis of their inability to meet the French language requirements, however such persons are entitled to be compensated for their losses The principles of mitigation are, as usual, applicable I leave that matter for the parties and retain jurisdiction to deal with any difficulties the parties may experience in calculating compensation or otherwise in the implementation of this decision Dated at Toronto, this 18th day of September, 1997 ,... ~ 1 ~ ) "..f~ "... ~.~.,. j.... ,.~ ::: ~.4~ ! . '''--....r S L Stewart, Vice-Chair