HomeMy WebLinkAbout2002-1579.Darcis.03-06-10 Decision
Crown Employees Commission de ~~
Grievance Settlement reglement des griefs
Board des employes de la
Couronne
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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# 1579/02
UNION# 2002-0720-0005
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontano PublIc ServIce Employees Umon
(DarcIs) Grievor
- and -
The Crown In RIght of Ontano
(Mimstry of Health and Long-Term Care) Employer
BEFORE Loretta Mikus Vice-Chair
FOR THE UNION Maureen Doyle
Ryder Wnght Blair & Doyle
BarrIsters and SOlICItorS
FOR THE EMPLOYER Janet Meyers
Mimstry of Health and Long-Term Care
HEARING June 3 2003
2
AWARD
The gnevor Michele DarcIs, IS an RegIstered PractIcal Nurse (RPN) who was ImtIally hIred as a
part tIme employee on January 8 1998 at the Lakehead PsychIatnc HospItal EffectIve February 5
2001 the gnevor began a temporary contract to replace a vacancy As of March 19 2001 the
gnevor began a temporary contract to replace a vacancy created through the absence of Pat Holma,
another part tIme RPN Ms Holma had been workIng for some years In a modIfied posItIOn that
dId not reqUIre her to work weekend, ShIft work or 12 hour days
The gnevor claims that she should have been converted pursuant to artIcle 31 whIch reads, In part, as
follows
Where the same work has been performed by an employee In the UnclassIfied ServIce
for a penod of at least eIghteen (18) consecutIve months, except for sItuatIOns where
the unclassIfied employee IS replacIng a classIfied employee on a leave of absence
authonzed by the employer or as provIded for under the Central CollectIve Agreement,
and where the mImstry has determIned that there IS a contInuIng need for that work to
be performed on a fu, tIme baSIS, the mImstry shall establIsh a posItIOn WIthIn the
ClassIfied ServIce to perform that work.
The Employer takes the posItIOn that the gnevor fits wIthIn the exceptIOn because her contracts of
employment have consIstently clearly stated that she was replacIng Ms Holma. The Umon takes the
posItIOn that the gnevor dId not replace Ms Holma because the posItIOn she assumed was dIfferent
In several matenal ways from the posItIOn Ms Holma held Ms Holma worked 32 hours per week,
the gnevor 40 Ms Holma worked only the day ShIft, the gnevor rotated on days and mghts Ms
Holma worked only eIght hour shIfts, the gnevor worked 12 hour shIfts Ms Holma dId not work
weekends, the gnevor dId. All of those dIfferences prove, asserted the Umon, that the gnevor dId
not replace Ms Holma but rather performed the dutIes of a full tIme RPN The Employer maIntaInS
that the actual posItIOn on the tIme schedule that the gnevor took was Ms Holma's ongInal posItIOn
before It was modIfied to accommodate her needs When the Employer looked for a replacement, It
looked for a replacement for the unmodIfied posItIOn, whIch IS the one the gnevor assumed.
3
The eVIdence also showed that the staff on a shIft are placed In teams of four who rotate through
the ShIftS together on a contInuIng basIs That IS, they always work together barrIng unusual
CIrcumstances lIke lower patIent counts Ms Holma dId not rotate ShIftS wIth the team and dId
not work the same 12 hour ShIftS as the rest of the teams When the gnevor was offered a full
tIme contract, she ImmedIately became a member of the team IncludIng workIng rotatIng 12
hours ShIftS and weekends Although these teams are not carved In stone and vaned on occaSIOn,
for the most part the staffing compnsed of the team members and Ms Holma on the day shIft.
In the cIrcumstances, notwIthstandIng that the contracts of employment stated that the gnevor
was replacIng Ms Holma, the facts show that she was fillIng a lIne In the schedule of a full tIme
employee workIng 12 hour ShIftS and weekends on a rotatIng basIs That IS not the posItIOn Ms
Holma occupIed.
For these reasons the gnevor IS to be converted to a classIfied full tIme RPN posItIOn.
I remaIn seIzed In the event the partIes encounter dIfficultIes In ImplementIng thIS award.
Dated thIS 10th day of June, 2003
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Loretta Mikus, Vice-Chair