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HomeMy WebLinkAboutNoyes 07-05-24Page 1 Case Name: Canadian Blood Services v. Ontario Public Service Employees' Union (Noyes Grievance) IN THE MATTER OF an arbitration Between Canadian Blood Services (Hereinafter referred to as the Employer), and Ontario Public Service Employees' Union (Hereinafter referred to as the Union) AND IN THE MATTER OF the Grievance of D. Noyes [2007] O.L.A.A. No. 296 89 C.L.A.S. 323 File No. MPA/Y700511 Ontario Labour Arbitration G. Brent (Arbitrator) Heard: Toronto, Ontario, May 11, 2007. Award: May 24, 2007. (11 paras.) Appearances: For the Employer: Frances R. Gallop, counsel. Jeremy Schwartz, Student-at-law. David Mutch, Senior Human Resources Advisor. Bob Blewett, Manager of Human Resources. For the Union: Don Martin, Grievance Officer. Page 2 Dana Noyes, Grievor. Tom Goddard, President Local 5103. DECISION 1 This matter arises out of a grievance (Ex 2) dated January 19, 2006 in which the grievor al- leges that her sick leave entitlement has been improperly calculated. The parties raised no prelimi- nary objections concerning arbitrability or my jurisdiction to hear and determine the matter. No viva voce evidence was called by either party; rather they presented me with an agreed statement of facts, the body of which is set out in full below: 1. The grievor, Dana Noyes, was hired in, 1987 by Canadian Red Cross. She continued on in her employment with Canadian Blood Services upon its creation in 1998. At all material times, the grievor was a member of the bargaining unit represented by OPSEU and its Local 5103. 2. The grievor was employed as a full-time Lab Assistant from 1987 until January 26, 2004. 3. Effective January 26, 2004, the grievor's status changed from full-time to part-time. This change was due to the grievor's successful application on a job posting (Posting No. 03T-88) for a regular part-time Lab Assistant po- sition in the Sample Preparation Laboratory. 4. Under the Collective Agreement in effect at the time of the grievor's change from full-time to part-time status, full-time employees received certain benefits and part-time employees were paid a percentage in lieu of those benefits as follows: Full-Time Part-Time Paid Vacation (Article 13.01) 6 to 12% in lieu of paid vacation (Article 13.08) Paid Holidays (Article 14.01) 4.5% in lieu (Article 14.06) Insured Benefits (Article 23.01) 6.5% in lieu of insured benefits (Note: some option to participate and not Page 3 get the pay in lieu) Sick Leave (Article 25) 2% paid in lieu 5. The grievor was paid out the vacation she had accrued but not taken at the time of her transfer to part-time status in accordance with Article 13.07 of the Collective Agreement. She was also paid out for her banked holiday pay upon her transfer to part-time status. 6. As a part-time employee, the grievor was paid a percentage in lieu of paid vacations, paid holidays, insured benefits and sick leave. 7. The grievor subsequently applied for a full-time Lab Assistant position on Job Posting 04T-08. The grievor was the successful applicant and she be- came a full-time employee effective February 16, 2004. 8. When the grievor returned to full-time status effective February 16, 2004, a conversion calculation was made to provide the grievor with entitlement to paid vacation based on her total service, she resumed her entitlement to paid holidays and she no longer received a percentage in lieu of these items. 9. Effective February 16, 2004, the grievor no longer received a two percent payment in lieu of entitlement to sick leave, and she became eligible for sick leave in accordance with Article 25. For purposes of determining the grievor's entitlement to sick leave, her service was calculated as dating from February 16, 2004. Consistent with that, no account was taken of any sick leave that the grievor had previously taken when she was a full-time employee in determining the grievor's level of sick leave entitlement. 10. The grievor filed a grievance on January 19, 2006 regarding the calculation of the sick leave available to her in which she alleged that Canadian Blood Services was in breach of Article 25.03 of the Collective Agreement. Ca- nadian Blood Services' position is that the calculation of the grievor's sick leave entitlement is correct and in accordance with the Collective Agree- ment. 11. The issue between the parties is whether the Canadian Blood Services is in breach of the Collective Agreement by having the grievor's sick leave ben- efits accrue from the date of her transfer to a full-time position, i.e., from February 16, 2004. 12. Attached as Exhibits are: (a) the Collective Agreement in force from April 1, 2001 to March 31, 2005; (b) the grievance; and (c) the response to the grievance. Page 4 13. The inclusion of a fact in this Agreed Statement of Fact does not constitute an admission by either party in regard to the relevance of or weight to be given to any particular fact. 14. The parties reserve the right to amplify or expand on the facts stated herein by other evidence, and to rely on any authorities in making submissions that they see fit. 2 It should be noted at the outset that in 2001 I issued a decision between these same parties's which dealt with the issue of the calculation of sick leave credits upon the transfer of part-time em- ployees (who had once been full-time employees) from part-time back to full-time employment. In that case the employees concerned had been laid off from full-time employment and became part-time employees as a result. Roughly three years later these employees posted back into full-time positions. By that time their recall rights had expired and the return to full-time employ- ment was dependent upon being the successful applicant for a posted full-time job. That decision was followed in a subsequent decision by Arbitrator Howard Brown in a decision involving the Employer and another Union. Both decisions found that sick leave credits were to be calculated be- ginning on the date the employees left part-time employment and became full-time employees. 3 As I understand it, neither party is arguing that my 2001 decision was wrong. The thrust of the Union's case is that in this case the facts are significantly different in that the grievor returned to full-time employment while still in her trial period in the part-time position into which she had posted. The Union argues that because the trial period had not expired the grievor's connection to full-time employment had not been severed since she could return or be returned to her previous position. The Employer's position is that there is no material difference between the relevant facts in this case and those in my 2001 decision and so the issue has already been determined. It argues that there are good labour relations reasons for following the earlier decision even though the doctrine of res judicata may not apply to arbitral awards. 4 In the appendices to this decision I have listed the cases cited to me and the provisions of the collective agreement which were relied on by the parties. In reaching my decision I have relied only on the agreed facts, the submissions of counsel, the collective agreement, and the cases cited. 5 Since neither party is arguing that my 2001 decision was wrong, there is no need to revisit the interpretation given to the provisions considered then. Suffice it to say that I have compared the relevant clauses cited in the 2001 award with their counterparts in the collective agreement before me (Ex 1) and find no material differences in the wording. Further, neither party pointed out any such difference to me, so I am content to proceed on the basis that there has been no such change. 6 There are factual differences between the two cases. As already noted, in 2001 the employees concerned had been laid off from full-time employment, became part-time employees, and several years later were successful in posting into full-time positions. In this case the grievor applied for and was successful in getting a part-time position and then a little less than a month later posted for and was successful in getting a full-time position. Her occupation of the part-time position was short enough that the trial period set out in Article 16.04 had not yet expired. 7 The Union's argument is based on the premise that the trial period somehow preserves the employee's original status as either full-time or part-time when the employee transfers from full-time to part-time or vice versa. The facts do not support that contention. Looking at paragraphs 4, 5 and 6 of the agreed statement it is clear that as of January 26, 2004 the grievor was treated as Page 5 someone whose status had changed from full-time to part-time. There is no suggestion that those changes were held in abeyance pending the completion of any trial period. There is no suggestion that any objection was taken to the immediate treatment of the grievor as a part-time employee as of January 26, 2004. 8 Further, looking at Article 16.04 it appears that the purpose of the trial period is for the Em- ployer to determine if the employee is performing satisfactorily. There is no option on the part of the employee to have a change of heart and assert rights in relation to her old job. That interpreta- tion is consistent with what occurred here, in that the grievor posted for a full-time job (see para- graph 7 of the agreed statement). 9 I therefore see no material difference in the facts which should lead me to a different conclu- sion than that reached in my 2001 decision. In view of this I will not comment on the cases cited to me concerning the policy reasons why previous decisions should be followed. 10 For all of the reasons set out above, I find that the collective agreement has not been violated and the grievance is dismissed. Although this may seem like a harsh result, it was pointed out to me that an employee transferring from part-time to full-time does not suffer any deduction in sick leave credits by virtue of the operation of Article 25.03, and so the effect may not always be so negative (see also paragraph 9 of the agreed statement of fact). By agreement of the parties, though, I will retain jurisdiction to deal with any dispute that may arise regarding the calculation of the grievor's entitlement. * * * * * APPENDIX I Collective Agreement Provisions Cited 13.07 Transfer of Full-time Employee to Part-time Status When a full-time employee transfers to a part-time position, vacation taken in advance but not earned will be recovered from the employee's last pay cheque prior to the transfer and the provisions of Article 13.09 shall be ap- plicable from the date of transfer. If the employee has not taken her full vacation entitlement for the period preceding the date of transfer to part-time status, she shall receive a lump sum payment equivalent to her unused vacation entitlement upon transfer for part-time employment. 16.04 Permanent Transfers For the purpose of this Agreement, a permanent transfer at the request of an employee is a change from one position to another within the bargain- ing unit, which does not constitute a "promotion" as defined in Article 16.02 above. a) The factors outlined in Article 16.02 a) above shall also apply in the case of permanent transfers. The employee will be given a trial pe- riod in which to demonstrate her ability to perform the new task to Page 6 the satisfaction of the Employer. The trial period will be two (2) months for full-time and temporary full-time employees. For part-time and temporary part-time employees the trial period will be three hundred and twenty five (325) regular hours. ... 16.05 A part-time or temporary employee who is permanently transferred or is promoted to a full-time position will be entitled to participate in the insured benefit plan and Pension Plan commencing on the date of transfer subject to the rules and regulations outlined in those plans and the applicable articles under this collective agreement. Accrual of sick leave benefits shall also commence on the date of transfer to the full-time position, For the purpose of vacation entitlement the employee's accrued seniority in the part-time or temporary position will be applied. 16.06 Vacancies resulting from the application of the above articles may be filled on a temporary basis by the Employer until the trial period is completed. Vacant and new positions shall be posted in accordance with Article 16.01 of this agreement. 25.03 The amount of sick leave credit an employee has at a particular date is based on the employee's length of continuous service in completed years to that date, less any sick time taken in the previous five year period. 25.04 Based on continues service, sick leave credits will accrue to each employee as listed below. One (1) day of accrued sick leave shall be credited as seven and one half (7.5) hours in the employee's sick bank. [Table omitted] 25.08 Upon termination of employment all sick leave shall be cancelled and no payment shall be due therefore. 25.09 a) The sick benefits outlined in this article shall not apply to part-time, temporary and casual employees. However, an employee must report sick absences without pay to their supervisor in accordance with Arti- cle 25.02 above. Page 7 b) Part-time, temporary and casual employees shall be paid two percent (2%) pay in lieu of sick leave, based on the applicable straight time earnings as outlined in Article 23.03 a). APPENDIX II 11 Cases Cited Canadian Blood Services and OPSEU, (2001) unreported (Brent) Canadian Blood Services and Ontario Nurses' Association, (2003) unreported (H.D. Brown) Canada Safeway Ltd and United Food and Commercial Workers International Union, Locals 175 & 633 (2004), 128 L.A.C. (4th) 175 (Keller) Fording Coal Ltd and United Steelworkers of America, Local 7884 (2003), 119 L.A.C. (4th) 241 (Sanderson, B.C.) Stelco Inc., Hilton Works and United Steelworkers of America, Local 1005 (1999), 82 L.A.C. (4th) 120 (Liang) Canadian Union of Public Employees, Local 1394 and Extendicare Health Ser- vices Inc et al. (1993), 14 O.R. (3d) 65 (CA)