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Home My WebLink About2003-0539.Barnes.05-02-01 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# 2003-0539 UNION# 2003-0701-0003 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Barnes) Union - and - The Crown In RIght of Ontano (Mimstry of MumcIpal MfaIrs and HOUSIng) Employer BEFORE RandI H. Abramsky Vice-Chair FOR THE UNION RobIn Gordon Gnevance Officer Ontano PublIc ServIce Employees Umon FOR THE EMPLOYER Lucy McSweeney Semor Counsel Management Board Secretanat HEARING January 28 2005 2 Award On May 20 2003 the gnevor AlIce Barnes, filed a gnevance, allegIng that her contInUOUS servIce date (CSD) IS Inaccurate SpecIfically she alleges that the penod from January 28 1976 to November 5 1979 when she worked for a temporary agency pnor to her appoIntment as an unclassIfied employee, should be added to her servIce date It IS the Mimstry's posItIOn that her CSD IS correct. There are no factual or legal Issues between the partIes At the heanng, the partIes agreed to the folloWIng facts 1 February 2nd 1976 The gnevor first began workIng In the Thunder Bay Rent Control Office (Mimstry of Consumer and CommercIal RelatIOns) She was servIng s a Telephone EnqUIry Clerk. (Documents show that her IntervIew In the workplace took place January 28 1976 but first day of work was February 2) 2 The Mimstry contracted for the gnevor's servIces through a temporary agenc call Office Overload. Office Overload paid the gnevor's wages and any benefits, collected and remItted statutory deductIOns on her behalf, and Issued her wIth a T4 slIp at the end of each calendar year Office Overload In turn InvOIced the Mimstry for the hours worked by the gnevor and for ItS admInIstratIve fees under the terms of ItS contract WIth the Mimstry All dIrectIOns to the gnevor and supervIsIOn of her work, and all approvals for tIme off, etc came from the Mimstry 3 November 5th 1979 FIrst day of the gnevor's unclassIfied contract wIth the newly establIshed ResIdentIal Tenancy CommIssIOn. (See letter dated October 24 1979 to AlIce Barnes from R. J LeClerc, Personnel CoordInator ResIdentIal Tenancy CommIssIOn) UntIl thIS tIme she had been workIng In the office as an employee of Overload. None of the gnevor's dutIes changed upon her appoIntment to the publIc servIce She remaIned In the same office, performIng the same dutIes as she had when supplYIng her servIces to the Mimstry under her contractual arrangement wIth Office Overload. 4 June 23 1980 The gnevor was appoInted to permanent full-tIme staff wIth ResIdentIal Tenancy CommIssIOn. Her posItIOns was that of Clerk 3 General (See letter dated June 19 1980 to the gnevor from CynthIa Webster Manager Personnnel & TraInIng, ResIdentIal Tenancy CommIssIOn) 3 Note SInce that tIme, the Thunder Bay office has become a Northern RegIOnal ClIent ServIce Office wIth the Ontano Rental HOUSIng Tnbunal (OHRT) The OHRT IS a Schedule 1 agency and IS alIgned for admInIstratIOn purposes wIth the Mimstry of MumcIpal Affairs and HOUSIng. The gnevor IS currently employed by OHRT as a Customer ServIce RepresentatIve (OAG 10) The posItIOn has reported to Tony Durbacz (Northern DIstnct Manager OHRT Sudbury Office) SInce 1998 5 September 6 2001 Tony Durbacz wrote a letter to Robert Breens of the OPSEU PenSIOn Trust at the gnevor's request, to confirm that he had known her SInce late 1976 The gnevor's representatIOns to the OPT In support of her bId to have the Itme when she was workIng for the Mimstry through Office Overload consIdered pensIOnable servIce, were ultImately unsuccessful 6 2001 and 2002 The gnevor met wIth her manager Tony Durbacz, on several occaSIOns to dISCUSS the Issue of her contInUOUS servIce date The gnevor wIshed to have her tIme WIth Office Overload counted towards her CSD mOVIng It back In tIme to January 28th 1976 7 January 16th 2002 The gnevor Informed Tony Durbacz that she wanted to pursue the matter through human resources (called the OrgamzatIOnal EffectIveness Branch.) 8 March 3rd 2003 The gnevor met wIth her manager and lodged her Stage 1 complaInt. 9 March 7th 2003 The Manager demed her gnevance The gnevor announced her Intent to file at Stage 2 The office OPSEU gnevance form was filed wIth the Mimstry on March 20th 2003 10 May 6th 2003 The Stage 2 meetIng was held. Management's desIgnee, Bnan OpItz (Manager-Corporate ServIces, OHRT) demed the gnevance In hIS letter of May 21 2003 confirmIng the outcome of the Stage 2 meetIng, Bnan OpItz stated that "the mImstry reserves the nght to rely upon any obJectIOns to the arbItrabIlIty of thIS gnevance" The relevant provIsIOn In the collectIve agreement has remaIned consIstent over the years It provIdes, In relevant part, as follows Article 18 - Seniority (Length of Continuous Service) 18 1 An employee's length of contInUOUS servIce wIll accumulate upon completIOn of a probatIOnary penod of not more than mne (9) months and shall commence (a) from the date of appoIntment to the ClassIfied ServIce for those employees wIth no pnor servIce In the Ontano PublIc ServIce or 4 (b) from the date establIshed by addIng the actual number of full-tIme weeks worked by a full-tIme unclassIfied employee dunng hIS or her full-tIme employment back to the first break In employment whIch IS greater than thIrteen (13) weeks "Unbroken servIce" IS that whIch IS not Interrupted by separatIOn from the publIc servIce "full-tIme" IS contInUOUS employment as set out In the hours of work schedules for the appropnate classIficatIOns The term terms "cIvIl servant" "clasSIfied servIce" and "publIc servant" as defined In the Ontano Public Service Act R. S 0 1990 C P 47 all reqUIre an "appoIntment" to the servIce of the Crown. Without WaiVIng any obJectIOns It has to the tImelIness of the gnevance, the Employer moved to dIsmIss the gnevance on the ments In lIght of the Junsprudence of the GSB The Employer contends that under the Junsprudence of the Board, a penod of servIce under a thIrd- party contract through an outsIde employment agency IS not tIme whIch may be Included In the calculatIOn of contInUOUS servIce under ArtIcle 18 1 of the collectIve agreement. OPSEU (Konya) and Ministry of Natural Resources (1985) GSB No 494/83 (Roberts) OPSEU (Hood) and MinistlY of Natural Resources (1997), GSB No 113/95 (Gray) OPSEU (Lee) and Management Board Secretariat ((1999) GSB No 1225/97 (Abramsky) The Umon, reluctantly concurs wIth the Employer and agrees that, under the Board's Junsprudence, the tIme that the gnevor worked for the Mimstry through Office Overload, may not be Included In her CSD calculatIOn. Because the partIes' to the collectIve agreement, the Employer and the Umon, do not have a "dIfference" regardIng the InterpretatIOn or applIcatIOn of the collectIve agreement In thIS matter the gnevance must be dIsmIssed on thIS basIs alone OPSEU (Cochran) andMinistlY of Natural Resources (1997), GSB No 833/96 (Abramsky) 5 I further conclude, on the ments, that the gnevance must be dIsmIssed. The facts In Konya, supra, are stnkIngly sImIlar to the facts In thIS case There, the gnevor worked for the Mimstry through a thIrd-party provIder of techmcal servIces, Modern Techmcal ServIces LImIted (MTS), for a penod of almost four years pnor to becomIng a classIfied employee Under thIS arrangement, the gnevor was paid by MTS whIch InvOIced the Mimstry for the hours worked by the gnevor When he became a classIfied employee, none of hIS dutIes changed. He remaIned In the same office performIng exactly the same dutIes as he had when he worked for MTS The Board concluded, at p 9 that "the penod when the gnevor was under a thIrd-party contract wIth MTS dId not constItute 'servIce In the publIc servIce' WIthIn the meamng of the collectIve agreement." AccordIngly the Board determIned that the employer had properly calculated hIS CSD and the gnevance was dIsmIssed. Clearly Konya IS dIrectly applIcable and dISposItIve of thIS gnevance The Umon, It should be noted, has been compelled by the Junsprudence to acknowledge that the gnevor's claim must be dIsmIssed. But counsel for the Umon clearly pOInted out the frustratIOn that anses when an employee cannot Include years of servIce for the Mimstry because those servIces were provIded through a thIrd-party contract, rather than dIrectly through an appoIntment to the publIc servIce The Board, In Kyona, supra, acknowledged sympathy for the gnevor In thIS kInd of sItuatIOn. It stated at p 9 DespIte havIng reached thIS conclusIOn, the Board must express a degree of sympathy for the plIght of the gnevor Nevertheless, the Board IS constraIned to Interpret the CollectIve Agreement In accordance wIth the applIcable Junsprudence, and thIS has led to the conclusIOn that when the partIes used the term 'publIc servIce' In thIS provIsIOn, they dId not contemplate covenng persons In the posItIOn of the gnevor 6 LIkewIse, the Umon and the Board, In thIS case, are equally constraIned to Interpret the collectIve agreement In accordance wIth the applIcable Junsprudence AccordIngly although I can sympathIze wIth the gnevor's frustratIOn, thIS gnevance must be dIsmIssed. Issued at Toronto thIS 1 st day of February 2005 ice-Chair