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HomeMy WebLinkAboutMANTHA-1989-06-09 n-.cr-,,'r-'''''' "cD 2 '" jQog '[, t:".. t:.ly) ;::,U v~. {' :J ..:10 IN THE MATTER OF AN ARBITRATION BETWEEN: The Association of Allied Health Professionals: Ontario (Hereinafter referred to as "the trade union") - and - St. Vincent Hospital (Ottawa) And In the Matter of a Grievance Relating to Article 23.04(b)(ii) of the Collective Agreeent Before: D.lI. Kates, Sole Arbitrator Appearing for the Trade Union: Sue McCulloch, Labour Relations Officer Appearing for the Employer: Lynn Harnden, Counsel Raymond Lapoint, Director, Human Resources Heard at Ottawa, Ontario, on August 25, 1989, '~f / / "',~.Y<,.$L, - I - Q.~9isi9_Il The instant grievance relates to whether the hospital improperly denied the grievor the 2% increment provided for under Article 23.04(b)(ii) of the collective agreement upon her completion of fifteen years of continuous service as a part time employee. It is common ground that Ms. Karen Mantha is employed by the hospital as a part time physiotherapist and as such is a member of the bargaining unit who would be entitled in that capacity to the per~entage pay increment in lieu of vacation, insurance, health and pension henefits otherwise extended to full time employees provided she completed fifteen years of continuous service. Moreover, it is agreed that Ms. Mantha has completed fifteen calendar years of continuous service as a part time employee. The employer submits, however, that the grievor must have worked in order to have complied with the continuous service requirement of fifteen eyars, an equivalent number of hours (22,500) to have discharged that requirement. And, it is agreed that the equivalent of 22,500 hours worked, based on a regularly scheduled work year for full time employees (1,500 hours) would constitute fifteen years of work. In other words, the grievor, however long the duration, must have worked 22,500 hours to have been eligible for the increment. Accordingly, the parties are agreed that the issue ought to be Joined on whether the fifteen year requirement for "continuous service" necessary to receive the benefit of the - 2 - increment under Article 23.04(b)(ii) simply means fifteen years of continuous employment (ie., unbroken service) or the equivalent of fifteen years (translated into 22,500 hours) of actual work service. Article 23.04 reads as follows: Artic.le 23.04 (a) Part-time employees shall be entitled to have their outside experience reco~nized in accordance with the provisions of article 23.03. The anniversary date for salary increment purposes for those employees shall be established in accordance with article 23.02 on completion of 1500 hours worked. (b) i) In addition to their salary established in accordance with Article 23.01(al, part-time, temporary and casual employees will receive in lieu of all applicable fringe benefits (vacation, sick leave, statutory holidays, Employer's share of the pension and insurance plans) an amount equal to twenty-two percent (22%) of their established salary. ii) After fifteen (15) years of continuous service, part-time and temporary employees shall receive 24% in lieu of all fringe benefits indicated in 23.04(b)(i). (e) i) An employee whose status is changed from part-time to full-time shall receive credit for her part-time seniority on the basis of one year of seniority for each fifteen hundred (1500) hours worked; the anniversary date for salary increment purposes for those employees shall be amended to include recognition of her number of hours of work already accumulated within the level. ii) An employee whose status is changed from full-time to part-time shall receive credit for her full seniori.ty. The employee shall assume her same level on the salary grid and she shall be credited with the number of hours of work already accumulated within that level and her next anniversary date for salary increment purposes adJusted accordingly. The anniversary date for salary increment purposes for those employees shall be in accordance with Article 23.03 on completion of fifteen hundred (l500) hours worked. The trade uni.on conceded that Article 22.04(a) insofar as it - 3 - related to eligibility for progression on the salary grid for anniversary pay increments the part time employee must work an equivalent of a full time work schedule (1500 hours) in order to receive the prescribed annual raise. In addition, the trade union also conceded that for purposes of measuring seniority under Article 23.04(dl(i)(ii) an employee when he or she converts from part time to full time employee status or vice versa, years of "continuous service" is determined commensurately with hours worked (1500 hours being the equivalent of one year's service) and not on the basis of calendar years of unbroken service. Notwithstanding the foregoing concessions, however, the trade union maintaincd that because Article 23.04(b)(ii) refers specifically to "fifteen years of continuous service" (and not to the equivalency of 22,500 hours worked as is the case with respect to the other subsections of Article 23.04), "continuous service" must be interpreted in terms of continuous or unbroken employment in accordance with the text's plain and clear meaning. Accordingly, since the grievor has satisfied the requirement of fifteen years of unbroken service, she is entitled, as Article 24.03(b)(ii) prescribes, to the percentage increment (2%) in salary in lieu of benefits over and above the amount of the percentage entitlement (22%) contained in Article 24.03(b)(i). In support of the argument that continuous service means continuous employment I was referred to the decision in Re Air Canada and Canadi~,!._Airline Employ_ee~ .A$soSl,"'-1:._i_@ (1976) 13 LAC (2d) 225 (Brown). - 4 - The employer submitted that for purposes of consistency with (and the avoidance of an absurdity with respect to) the entitlements of full time employees 1 was compelled to ascribe an interpretation to the term "fifteen years of continuous service" contained in Article 24.03(b)(ii) that was in context with other subsections of Article 24. And as was conceded by the trade union, the employer pointed out that with respect to other benefits accruing to part time employees under Article 24.03 the consistent requirement suggests that a part time employee must work the equivalent of 1500 hours to be credited with a full year's continuous service. To support the principle that the meaning of continuous service must be gleaned from the context of related provisions of the collective agreement the employer referred me for support to two unreported decisions in Re Hanover and District Hospital and London a!!9c_Dj,strict Service Workers' Union, LocaL~~.Q. (Samuels) (decision dated Deceber 18, 1987) and Re Pacific Northwest Bus Compa~ Ltd. and Teamsters Local Union 31 (Munrow) (decision dated July l7, 1987). The employer referred the Board to Article 16.0l of the collective agreement to support its contention that the interpretation of the term "continuous service" contained in Article 23.04(b)(ii) must be derived from the context of other related provisions of the collective agreement. It is therefore appropriate that that Article be set out in its entirety: iJ.r l<.;Lcle 16.01 - Accumulation of V~ca tio!!...1<~'!Y~ a) The Vacation year shall be from May lst, to April 30th, inclusive of the followin. calendar year. Vacation dates shall be submi t ted in wri ting no later than ~larch 31s t, of each year. - 5 - b) A full-time employee shall earn vacation leave credits for each calendar month during which he receives his regular pay for at least ten (.10) days at the following rate: i) 1 2/3 days with pay after one year of service as of April 30th. ii) 2 l/12 days with pay after 17 years of service as of April 30th. Effective May 1st, 1989: i) 2 l/l2 days with pay after fifteen years of service as of April. 30th. ii) 2 1/2 days with pay after twenty-five years of service as of April 30th. c) Part-time employees will be entitled to leave without pay in accordance with the terms and conditions provided for full- time employees' vacation leave. Initially the employer sought to suggest, having regard to the application of Article l6.01(b), that if a full time employee failed to work at least ten days in a given month that employee would forfeit something more than the prescribed vacation leave credit (1 2/3 days) an employee receives upon the completion of one month of service. The employee would also have deducted from his continuous service (one month) credit towards the accumulation of fifteen years service necessary to be eligible for the increment to vacation leave credits to 2 1/2 days for each month's service. It was therefore suggested if that were the case the full time employee would hold a lesser benefit relative to the part time employee with respect to the calculations of the fifteen years of "continuous service" for eligibility for increments specifically reserved for full time employees under Artic.1e 16.0l(b) and part time employees under Article 23.0i\(b)(ii). This Has the absurdity the employer - 6 - insisted would result should I accede to the trade union's position. The employer then conceded that the interpretation that was argued with respect to the calculation of fifteen years service under Article l6 was not in fact the manner in which the employer applied the collective agreement. In truth, the employee who has forfeited his entitlement to be credited with 1 2/3 vacation leave days because of non compliance with the ten day work requirement would still maintain his service credit for that month for purposes of the calculation of the fifteen years service needed to be eligible for the vacation leave increment. In my opinion once the employer made this concession with respect to the calculation of fifteen years service in terms of continuous employment (irrespective of time worked) then it thereby had to apply the same consideration to the calculation of continuous service with respect to the increments applicable to part time employees under Article 23.04(b)(ii) of the collective agreement. The language of both Article 16.01(b)(ii) and Article 23.04(b)(ii) both speak in terms of years of continuous service as opposed to the quantum of time actually worked whether those notions are expressed in hours or days. What appears to be recognized for purposes of eligibility for the increment under both provisions is the length or duration of the employment relationship as between employer and employee as measured in !'years'! of continllous service. Let me take a simple example to illustrate this point. If two physiotherapists, one full time and one part time, are given - 7 - educational leave without pay for one year to improve their qualifications as physiotherapists at a University institution, each would continue to accumulate service as employees while absent from work. Neither employee would receive any of the benefits while on leave (for example the vacation benefit) under the collective agreement because they would not have obviously met the work requirement in order to receive the credit. Nonetheless, their employment relationship with the hospital would continue unabated for the purpose of calculating their continuous service for purposes of the fifteen year requirement needed to receive the increments under both Articles 16.01(b)(ii) and 23.04(b)(ii) of the collective agreement. For the employer to suggest as it did in argument that to receive the increment the full time employee's service would be calculated on the basis of continuous employment whereas the part timer would be calculated on the basis of a work requirement of an equivalent period would be inconsistent no.t only with the language of the collective agreement (which speaks in terms of years of continuous service) but the objective of Article 23.04 itself. It is common ground Article 23.04 attempts as its objective to compensate part time employees for the non-monetary benefits that have otherwise been negotiated for the full time . employees. In other words, in fairness, the objective is to ensure that part time employees receive on a Q.ro rate basis equivalent compensation (albeit in money) as are received by full time employees in insurance, health and pension benefits. - 8 - And, of course, because part time employees only work by definition a portion of the time of full time employees, compensation is prorated to conform to the equivalency of one year (l500 hours) otherwise worked by the full time employees. As a result, for the par't time employee progression on the salary grid and credit for seniority are measured in terms of years of actual work experience (ie., 1500 hours). But entitlement to the increments under Article 23.04(b)(ii) on the basis of 15 years continuous service is calculated using the blunter instrument of a year. For both the full time and part time employee, irrespective of actual time worked, the basis for determining eligibility for the increment under Articles 16.0l(b) and 23.02(b)(ii) is based on continuous employment measured in unbroken years of service. And the measure of a calendar year is used for calcula'ting continuous service irrespective of whether ,the eligibility requirement for the increments is directed for full timers or part timers. However, once the part timer achieves fifteen years of continuous service (and is eligible for the percentage increment) his entitlement to the benefits of Article 23.04(b)(iil continues to be pro rated on the basis of time or hours worked (ie., a percentage of salary). In summary, as the aforesaid example attempts to demonstrate, to apply a different measure in calculating "continuous service" for a full time employee's entitlement to the increment under Article 16.01(b)(iil than is used in determining the same service requirements for the part time - 9 - employee's entitlement to an increment under Article 23.04(b)(ii) would simply defeat the purpose of that provision in achieving parallel benefits for both types of employees. For all the foregoing reasons, the grievance succeeds. The employer is directed to credit the grievor fifteen years of continuing service on the anniversary date of her fifteenth year of continuous employment with the hospital. The employer is also directed to compensate the grievor as of her fifteenth year of continuous service in accordance with the benefits contemplated under Article 23.04(b)(ii) of the collective agreement. I shall remain seized for that purpose. Dated this ~/\ day of September 1989. it David H. Kates :DauLd df. !J(atc;~ clh-bLt'l.atLon cSc;wLcc;~ fJnc. cSuite 201, 200 Elgin. cS/uet Ottawa, On/a"o 2{29 1.1:5 'JefephDne, :B=. (613) 232-7151 d?... (613) 234-8196 9ili, DK-89-832 September 5, 1989 RECE!VED SE? 2 5 1989 Ms. Sue McCulloch Association of Allied Health Professi ona 1 s P.O. Box 263 Manotick, Ontario KOA 2ND Dear Ms. McCulloch: Re: St. Vincent Hospital and AAHP, K. Yantha Grievance Please find enclosed the Board's decision in the above matter and my account. Yours truly, DAVID H. KATES ARBIT~TION SERVICES INC. David H. Kates. Encl.