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Home My WebLink About2000-0516.Morgan.02-12-05 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 0516/00 UNION# 00B234 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Morgan) Grievor - and - The Crown In RIght of Ontano (Mimstry of the Attorney General) Employer BEFORE Loretta Mikus Vice-Chair FOR THE UNION Mary MacKInnon Bode & MacKInnon BarrIsters and SOlICItorS FOR THE EMPLOYER MeredIth Brown Counsel Management Board Secretanat HEARING November 28 2002 2 DECISION On Apnlll 2001 the partIes reached an agreement In the gnevance of DebbIe Morgan, a Counter Clerk at the Supenor Court In Thunder Bay Ontano The gnevor had taken Issue WIth the umlateral reclassIficatIOn of her status as a full-tIme classIfied employee to a regular part-tIme employee (RPT) and at medIatIOn the partIes were able to enter Into Minutes of Settlement respectIng all outstandIng Issues raised In that gnevance The relevant provIsIOns of the Memorandum of Settlement read as follows 1 EffectIve Apnl15 2001 the gnevor's employment status wIll be restored to full-tIme classIfied servIce 2 The gnevor's modIfied hours of work wIll be maIntaIned as dIrected by her physIcIan from tIme to tIme 3 The gnevor wIll be permItted to contInue to apply her STS credIts towards those hours that she IS unable to work, up to 6 hours per day When her STS credIts have been exhausted the hours the gnevor IS unable to work wIll be treated as unpaid leave by the employer 4 The Employer wIll, effectIve Apnl15 2001 restore and maIntaIn penSIOn contnbutIOns for the gnevor at full tIme rates 5 The employer wIll, effectIve Apnl15 2001 reInstate and maIntaIn the folloWIng benefits on the basIs of full-tIme employment status (a) basIc lIfe (b) supplementary health and hospItal & VISIOn (ArtIcle 39) (c) dental (ArtIcle 40) (d) L TIP (ArtIcle 42) 6 Although the gnevor's unpaid hours wIll be treated as leave wIthout pay ArtIcle 36.2 wIll not apply The gnevor wIll not be reqUIred to pay premIUms for those hours 6 1 The gnevor wIll contInue to accrue short-term sIckness credIts based on her former RPT status (6 hours a day) 7 NotwIthstandIng #1 above, the gnevor's vacatIOn and vacatIOn credIts wIll contInue to accrue based upon hours presently worked (4 1Iz hours per day x 4 days per week, or such addItIOnal or decreased hours the gnevor works as the physIcIan authonzes The Minutes of Settlement also stated that I would remaIn seIzed In the event the partIes encountered dIfficulty In ImplementIng thIS settlement. I have been asked to reconvene the Board because of ImplementatIOn problems regardIng paragraphs 6 & 7 of the Minutes of Settlement. Ms MacKInnon, counsel for the Umon, took the posItIOn that the Employer has Improperly pro-rated the gnevor's vacatIOn and sIck leave credIts by applYIng the part-tIme provIsIOns of the collectIve 3 agreement to her a full-tIme employee By the Umon's calculatIOns, the gnevor should receIve vacatIOn credIts as a full-tIme employee but pro-rated to reflect 6 hours a day Instead of 7 5 The employer has applIed ArtIcle 71 of the part-tIme provIsIOns of the collectIve agreement so that the gnevor's STS credIts are based on the ratIO of her hours worked to a full-tIme employee's hours SImIlarly the Umon takes Issue WIth the employer's calculatIOn of her vacatIOn pay and credIts The gnevor's IS entItled, as a full-tIme employee, to 25 days of vacatIOn (5 weeks) Her pay therefore, asserted the Umon, should be 25 days at 4 1Iz hours per day or 15 days of pay Her entItlement then should be 25 vacatIOn days but only 15 days of pay The Employer on the other hand, has applIed ArtIcle 72 to pro-rate the gnevor's vacatIOn entItlement as If she were a part-tIme employee The Umon referred to several Employment Standards Act cases that stand for the proposItIOn that servIce and semonty are dIStInct concepts and should be consIdered separately In decIdIng what credIts ought to apply It also referred to decIsIOn of ArbItrator Grey (Thermal CeramIcs & USW A (1992),30 L A.C (4th) 318) In whIch he stated that collectIve agreement provIsIOns must be Interpreted In a manner consIstent WIth the Ontano Human Rights CommIssIOn provIsIOns on dISCnmInatIOn on the basIs of dIsabIlIty Ms Brown, counsel for the Mimstry asserted that a plaIn readIng of the Minutes of Settlement does not support the Umon' s posItIOn. Those terms of the settlement are clear and unambIguous on theIr face and the Employer has Implemented them In accordance wIth CollectIve Agreement, the Minutes of Settlement and the Ontano Human Rights Code Paragraph one sets out the purpose of the settlement, namely that to restore the gnevor's full-tIme status Paragraphs 3 4 and 5 set out what that status entItles her to as a full-tIme employee Paragraphs 6 1 and 7 are exceptIOns to the normal full-tIme entItlements Each paragraph outlInes an exceptIOn to the customary full-tIme accrual of benefits DECISION The JunsdIctIOn In InterpretIng documents IS abundant and consIstent. The purpose IS to attempt to determIne the partIes' IntentIOn by gIVIng the words theIr usual and common meamng unless the partIes IndIcate otherwIse With those consIderatIOns In mInd and, havIng revIewed the Minutes of Settlement, I am of the VIew the Employer's InterpretatIOn IS to be preferred. Paragraph one of the Minutes of Settlement sets out the partIes' IntentIOn In clear and unambIguous terms The gnevor IS to be returned to her former status of a full-tIme classIfied employee Paragraphs two through five define what flows from that status, namely modIfied hours of work, utIlIzatIOn of STS credIts, pensIOn contnbutIOns and health and welfare benefits Paragraph 6 IS equally clear In ItS IntentIOn. The gnevor IS exempted from the full-tIme provIsIOns that would have reqUIred her to pay for some or part of her benefits under the provIsIOns of the collectIve agreement. Paragraph 6 1 states that the gnevor wIll contInue to accrue STS credIts based on her former RPT status These words are not ambIguous The gnevor's STS credIts are to accrue on the basIs of her RPT status and not as a full-tIme employee It IS noteworthy that the ongInal Minutes read "current 4 status" Instead of "former RPT status" The former was crossed out and the latter added. It IS also InterestIng to note that In the ongInal verSIOn of the Minutes, paragraph S had Included a provIsIOn for STS entItlement, whIch was crossed out and replaced wIth paragraph 6 1 That IndIcates that the partIes put theIr mInd to the Issues of STS accrual and specIfically excluded It from the lIst of full-tIme benefits and expressly lImIted to her status as a RPT employee Paragraph 7 begIns wIth the phrase "notwIthstandIng # 1 above" It was agreed by the partIes that "# 1 above" referred to paragraph one, whIch restored the gnevor's full-tIme status Paragraph 7 then sets out the method of vacatIOn accrual If I were to Interpret thIS paragraph In the manner urged by the Umon, I would, In essence, be readIng out the words "notwIthstandIng # 1 above" That would be InCOnsIstent WIth the canons of InterpretatIOn that dIctate that an arbItrator should assume that all the words used by the partIes were Intended to have meamng unless that would lead to an absurd result. In thIS case, that phrase must be read to mean that, notwIthstandIng the gnevor's full-tIme status, she wIll receIve vacatIOn and vacatIOn credIts (i e vacatIOn tIme and vacatIOn money) based upon the "hours presently worked" For further clanty the partIes have expressed those hours to be 411z per day x four days per week. HavIng consIdered the provIsIOns of the Minutes of Settlement separately and as a whole the employer's InterpretatIOn of the Minutes of Settlement IS In keepIng wIth the IntentIOns of the partIes and the express words of the document. The gnevance IS therefore dIsmIssed. Date at Toronto thIS Sth day of December 2002 .,. , .. , ., r .. . ,":" ..~f Loretta Mikus Vice-Chair