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HomeMy WebLinkAbout1996-1499DODMAN98_10_28 ~;.;... I ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE , SETTLEMENT REGLEMENT BOARD DES GRIEFS t80 DUNDAS STREET WEST SUITE 800, TORONTO ON M5G tZ8 TELEPHONEITELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 800, TORONTO (ON) M5G tZ8 FACSIMILEITELECOPIE (416) 326-1396 GSB # 1499/96 OPSEU 96G 119 . IN THE MATIER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECfIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Tom Dodman) Grievor - and - The Crown in Right of Ontario (Mimstry of Health - Chatham & District Ambulance Service Linuted) Employer BEFORE Owen V Gray Vice-Charr FOR THE Tim Banasik GRIEVOR Grievance Officer Ontano Public Service Employees Umon FOR THE Donald K. Robinson, Q C EMPLOYER Counsel Mathews, Dinsdale & Clark Bamsters & Solicitors HEARING January 9, 1998 May 5, 1998 - DECISION [1] The grIevor began workmg for the Chatham & DIstrIct Ambulance ServlCe as an ambutance attendant on a part tIme basIs m July 1990 In May 1995 It ap- pomted hIm to a full-tIme ambulance attendant posItIon for whIch he had ap- plIed Two months later, m July 1995, the grIevor learned that the Chatham FIre Department had accepted hIS applIcatIOn for employment as a full-tIme fire fighter He gave Leonard LanglOIS, the owner/operator of the ambulance servlCe, two weeks notIce and asked to be transferred to a part tIme posItIon, so that he could work on days off from hIS full tIme work schedule as a fire fighter Mr LanglOIS told hIm that he would have to submIt a letter of resIgnatIOn and hand m hIS umform, and then re-apply for employment after a gap of 3 months He also saId that there was no guarantee that he would be hIred back as a part tIme employee [2] The grIevor was not happy wIth that response There were others workmg part-tIme for the ambulance servlCe and full tIme for the fire department who had prevIOusly worked full tIme for the ambulance serVIce He dId not belIeve that they had had to hand m theIr umform or resIgn when they Jomed the fire- department, or that there had been a gap for them between ceasmg full-tIme and begmmng part tIme work wIth the ambulance servIce. He wrote thIS letter of July 17, 1996 to Mr LanglOIS, and copIed It to Gerry Laden, hIS umon represen- tatIve Dear Mr LanglOIs Further to our conversatIOn of Tuesday, July 16 1996 1 am questIOnmg your reasonmg as to why I would not be afforded the same rIghts as past co-workers. Past practIce has chctated that when a full trme employee pursued other career mterests they were able to remam as part trme employees WIth httle or no lapse of tIme between theIr full and part trme status I would expect thIS rIght as well. -- . - 2 - Further I would expect not to lose any accrued semonty as dIctated m SectIOn 37, SubsectIOn 07 of the Collective Aqreement, m whIch It states "An employee who IS transferred wIthm thIS ambulance servIce from full trme to part trme/casual employment shall transfer wIth hIs/her total semorIty accrued to the date of transfer and shall contmue to accumulate semorIty wIth each hour worked." Therefore, I antICIpate a commItment on your part m wrItmg prIor to Monday, July 22, 1996, transferrmg me to part trme status wIthout any lapse m trme or loss of semonty . Mr LangloIs replIed by letter dated July 23, 1996 Dear Tom In response to your letter, you have accepted full tIme employment wIth the CIty of Chatham and as all other employees you are expected to resIgn your full tIme posItIOn WIth thIS fIrm. You may, after havmg resIgned, apply for work as a new part time employee startmg wIthout semorIty as has been the practIce m the past wIth all the other people m your same crrcumstance. There are no guarantees that you will be hrred at the trme of apphcatIOn. Smce you have mformed me you are to start your new posItIOn on July 29, 1996 you WIll be severed from thIS company as of July 28, 1996 as thIS will be your last scheduled shIft. I wIsh you well m your new endeavors. The grIevor responded by letter dated July 25, 1996 Dear Mr LanglOIS ThIS letter IS to mform you that I have been m contact wIth Mr Gerry Laden and that he will be contactmg you. He has recommended that I not submIt a letter of resIgnatIOn. I am advIsmg you that I am mvokmg my rIght to go from full trme to part trme employment while retammg my accrued semorIty as found m artIcle 37 07 of the CollectIve Agreement. Gerry has also adVIsed me, that should you termmate my employment that you will leave me no recourse but to file a grIevance of wrongful dIsmIssal. [3] Thereafter, the grIevor started hIS full time Job wIth the fire department The ambulance servIce treated hIm as havmg reSIgned hIS full-time Job wIth It, The grIevor dId not apply to the ambulance serVIce for a part-time Job He filed the grIevance now before me, allegmg Wrongful dIsmIssal- Not bemg returned to part trme employment from full trme employment wIth accrued semorIty as found m sectIOn 37 07 of the collectIve agreement, -.' - 3 [4] The umon does not claIm that the grIevor had a "rIght" to be transferred to a part-tIme posItIOn and retam hIS semorIty under ArtIcle 3707 or any other prOVISIOn of the partIes' collectIve agreement. It says that the employer had the dIscretIOn to grant the transfer or not, It asserts that m thIS mstance the em- ployer exercIsed that dIscretIOn unreasonably, unfaIrly, arbItrarIly and m bad faIth. It asserts that the decIsIOn was unreasonable, unfaIr and arbItrary because the employer dId not consIder the merIts of the requested transfer, that the de- mal of the transfer was not based on any assessment of operatIOnal reqUIre- ments or legItImate busmess mterests It says that the deCISIOn was made m bad faIth because It was an attempt to cIrcumvent the semorIty prOVISIOns of the collectIve agreement, specIfically those m ArtIcle 37 07 [5] The grIevor testIfied as to hIS belIef about how others had been treated, hIS qualIficatIOns to perform the work and hIS belIef that there would have been enough work to JustIfy havmg hIm contmue as a part-tIme employee The umon called CurtIS WIllIams, a former full tIme employee who, m August 1993, after learmng he had been hIred by the fire department as a full tIme fire fighter, de- lIvered a note to the employer gIvmg notIce and requestmg a "transfer" to a part- tIme pOSItIOn. Mr WIllIams testIfied that he dId not get a reply to hIS note He spoke to hIS shop steward before delIvermg the note, but does not know whether the shop steward filed a grIevance afterwards. He does not remember attendmg a grIevance meetmg, and dId not pursue the Issue WIth anyone after he began workmg for the fire department m September 1993 He saId he had not been asked to return hIS umform, and stIll had It. [6] Mr LanglOIs testIfied that over the years several full-tIme employees of the ambulance servIce have obtamed full-tIme Jobs at the fire department and have asked to contmue workmg for the ambulance servIce part-tIme He stated that m every case the employer's response has been that the mdlvldual would have to reSIgn hIS full tIme pOSItIOn and re-apply for part-tIme work. Some re- applIed, some dId not. Of those who re-applIed, some were re-hlred as part tImers and some were not Of those who were rehIred, none was gIven credIt for - I 4- hIS preVIous full-tIme servIce - they all began agaIn at the bottom of the part tIme semonty lIst. Mr LanglOIs stated that he has never granted an employee a transfer to part-tIme employment so that he or she could pursue full-tIme em- ployment elsewhere He consIders that ArtIcle 3707 IS In the collectIve agree- ment to deal wIth transfers ImtIated by management, [7] Mr L.anglOIs testIfied that he responded to Mr Dodman's request by say- Ing he would have to resIgn rus full tIme Job and then re-apply for part tIme work because that IS how he had treated other such requests In the past. He fur ther testIfied that although he had not always specIfied a three month gap, he preferred to have a tIme gap before consIderIng any such applIcatIOn by a newly hIred fire fighter because the fire department had gIven rum "heat" around 1990 when he took two former full-tImers back as part tImers nght after they started as full-tIme fire fighters Had such an applIcatIOn been made, he would have consIdered the company's operatIOnal reqUIrements In determInIng whether to hIre another part tImer The number of part-tImers had Increased substantIally In recent years, and he was not sure he would have wanted to Increase the num- ber further at that tIme He belIeved that there had been a dISCUSSIOn WIth the umon about Mr WillIams' SItuatIOn, and that a gnevance had been filed and then abandoned He saId he had not asked Mr WIllIams to return hIS umform beca use he had not known Mr WillIams stIll had It. [8] ArtIcle 22 01(i) of the partIes' collectIve agreement provIdes as follows 22.01 The Umon recognIzes and acknowledges that the management and drrectlOn of the workmg force are fixed exclUSIvely m the Company and, WIthout restnctmg the generahty of the foregomg, the Umon acknowledges that the Company's exclUSIve nghts to manage rnclude (i) the nght to hIre, aSSIgn, chscharge, transfer, retIre promote, demote, drrect, classIfy, lay-off, recall or chscIphne provIded that a clarm by an employee who has acqUIred semonty that the employee has been chscharged or chscIphned WIthout Just cause may be the subject of a gnevance and dealt WIth as herem after provIded, --- - 5 - All the nghts reserved to management herem are subject to the prOVISIons of thIs Agreement, and shall be exercIsed m a manner that IS faIr, reasonable, and consIstent WIth the terms of the Agreement. The prOVISlOns of ArtIcle 3707 are as quoted In Mr Dodman's letter of July 17, 1996, whIch IS set out In paragraph [2] above [9] The thrust of the umon's argument was that upon reCeIVIng the grIevor's request for fransfer the employer was oblIged to consIder It "on ItS merIts," as to do otherwIse would be unfaIr and unreasonable Its submIsslOns were to the ef- fect that the "merIts" to be consIdered were prImarIly whether there would be enough work for another part-tImer It argued that by rejectIng the request on the basIs of a blanket polIcy of not allowIng such transfers the employer acted on a consIderatlOn Irrelevant to the merIts of the request The umon submItted that the employer's actlOns were In bad faIth because they undermIned the semorIty prOVISlOns of the collective agreement, partIcularly Article 37 07, by deprIVIng the grIevor of the benefits In terms of Increased vacatlOn tIme, vacatlOn pay and so on to whIch he would have been entItled as a part-tImer If gIven credIt for the semorIty he had had as a full-tImer The umon cIted Metropohtan Toronto (Mu- mc~palay) v C U.P.E (1990), 69 D.L R. (4th) 268 (Ont, C A), Re Counc~l of Pnntmg Industnes of Canada and Toronto Pnntmg Pressmen & Ass~stants I Un- wn No 10 (1983), 149 D L.R. (3d) 53 (Ont, C A), Re Canad~an General Electnc Company Lumted and Umted Electncal, Radw and Machme Workers of Amer- ~ca, Local 524 (1954),5 L.AC 1791 (LaskIn), Da Costa, 570/84 (Samuels), McIn- tosh, 3027/92 (DIssanayake), Dand, 353/94 (Stewart), Re Wellmgton County Board of Educatwn and Ontarw Secondary School Teachers' Federatwn (1990), 14 L.A.C (4th) 164 (DevlIn) [10] The employer argued that the employer had a legItImate bUSIness Interest both In treatIng the grIevor's request as It had and In treatIng It In a manner consIstent WIth the treatment of sImIlar requests In the past. The Increased va- cation time, vacatlOn pay and so on to whIch the grIevor would have been enti- tled as a part timer If gIven credIt for the semorIty he had had as a full-tImer were costs to the employer AvoIdance of Increased costs was a valId bUSIness In- _. 6 - terest, So was consIstency WIth past practIce There was no bad faith merely be- cause the employer dId not gIve the grIevor what he wanted. Reference was made to Be Metropohtan Toronto (MumcLpahty) and C U.P.E, Loc 43 (1991), 19 L.A.C (4th) 287, (E N DavIs), Be School DLstnct No 65 (CowLchan) and C U.P.E, Loc 606 (1993), 36 L.A.C (4th) 120 (Kmzle), and Be CanadLan Na twnal Bmlway Co and C.A. W -Canada (1994), 43 L,A.C (4th) 195 (M.G Plcher) . Decision [11] In argument the umon urged me to dlsbeheve Mr LanglOIs' testImony about the employer's past practice because he had not produced letters of reslg nation and other records to substantiate what he saId about the treatment of others m CIrcumstances sImIlar to the grIevor's The umon's representative dId not challenge Mr LanglOIs to produce such documents durmg cross-exammatIOn. Except wIth respect to the questIOn whether a grIevance was filed on Mr WIl- ham's behalf, there was no attempt by the umon to contradIct what Mr LanglOIs saId about the employer's past practice. WIth that exceptIOn, I accept Mr Lan- glOIS' testimony about the employer's past practice As for the questIOn whether a grIevance was filed on Mr WIlham's behalf, I do not thmk It matters whether such a grIevance was filed and abandoned or never filed at all. [12] The grIevor decIded he would no longer work for the ambulance servIce on a full time basIs, whIch was the basIs on whIch It employed hIm, because he was gomg to work full-time for another employer He gave notice of that decIsIOn to the employer, and asked to be transferred to part time employment m such a way that he would retam the equIvalent of the semorIty he then had The em- ployer reacted by consldermg first the threshold questIOn whether It would en- tertam such a request for transfer m those CIrcumstances It decIded that It would not, because ItS past practIce m the face of such requests had been to ref- use to entertam them. Instead, It had always told full-time employees who wIshed to take full-time employment elsewhere and work part-time at the am- ~~ I 7 bulance servIce that they would have to resIgn theIr full-tIme employment wIth It and then apply to be hIred as a new part tImer WIth no semorIty [13] The umon's argument IS to the effect that the employer had no dIscretIOn about whether to entertam the request, that It was oblIged to consIder the re- quest and only had a dIscretIOn about whether or not to grant It "on ItS merIts" It defines t~e merIts narrowly so as to exclude the employer's past practIce as a relevant consIderatIOn, mSIstmg that the decIsIOn had to focus prImarIly on whether there would be enough work for another part-tImer [14] ThIS IS not a case lIke Re Wellmgton County Board of Educatwn, supra, and other awards relIed upon by the umon, m whIch the collectIve agreement provIdes, expressly or by ImplIcatIOn, that the employer wIll entertam a request of the sort the grIevor made here ArtIcle 3707 does not expressly or by neces- sary ImplIcatIOn contemplate the employer's entertammg employee mItIated re- quests for transfer from full-tIme to part tIme employment, nor does any other prOVISIOn of the collectIve agreement. By contrast, ArtIcle 31 07 does expressly provIde m for the makmg of WrItten requests by full-tIme employees "to transfer to an eqUIvalent posItIOn at another base," and sets out the procedure to be fol- lowed when such an request IS made [15] When faced wIth a request that It was not oblIged to even entertam, the employer dId not act unfaIrly or unreasonably (or mconsIstently wIth the terms of the CollectIve Agreement) by first consIdermg whether It would even entertam such a request "on ItS merIts" ConSIstency WIth past practIce was a reasonable consIderatIOn m that regard, one that Imported faIrness to other employees mto the assessment. [16] The employer's past practIce was not an Improper consIderatIOn. I am not persuaded that It was unfaIr, unreasonable or contrary to the CollectIve Agree- ment for the employer to refuse to entertam the grIevor's request for transfer from full tIme to part tIme employment, Just as It had prevIOusly refused to en- tertam SImIlar requests by others m SImIlar CIrcumstances, thus leavmg hIm to ~ - 8 - apply later for part time employment If he wIshed Nor do I find any bad faIth III the employer's treatment of the grIevor ThIs grIevance IS therefore dIsmIssed ')..~~ Dated at Toronto thIS ,2.6(h day of October, 1998 /'j (~;Ji--V %7 (e-wen V Gray, VIce-ChaIr.