Loading...
HomeMy WebLinkAboutSmith 04-05-21 . , , ~ .' In the Matter of an Arbitration Between: Victorian Order of Nurses and OPSEU, Local 267 In the Matter of the Grievance of Sharon Smith Respecting Vacation Entitlement AWARD Before: Dana Randall For the Employer: Rod Gillen For the Union: Mitch Bevan Evelyn Earle Deborah Charbonneau Sharon Smith A hearing in tWs matter was held in St. Catharines, Ontario on 21 April 2004 'r , . AWARD I This is a contract interpretation case respecting vacation entitlement. Sharon Smith (the Grievor) is a registered nurse who protests the manner in which the Employer is calculating the number of days of her entitlement. The Union submits that the Grievor is entitled to 20 days of annual vacation; the Employer maintains that the proper entitlement is 12 days, The issue arises because of her relatively anomalous status as a "Permanent Part-time" employee. As I understood the evidence, Ms. Smith is one of three employees with that status. The facts are not in dispute. The Grievor has a September 25, 1980 date of hire. By letter of appointment dated May 11, 1992 she was made a permanent part-time employee. That status, unlike regular part-time, is defined as 60% of full-time status, and her hours are guaranteed. The letter of appointment also indicates that Ms. Smith's "vacation entitlement will be 3/5 of 20 or 12 days", Subsequent to her hiring and her appointment to permanent part-time status, on a date not specified by the parties, the Union and the Employer entered into their first collective agreement. And subsequent to that, the parties have renegotiated that agree.ment on one or more occasions, In the last round of negotiations, new language was added to the "vacations" article. The new language, which triggers this grievance, is best described as "conversion" language. It sets out how hours of service are to be converted into years of service for the purposes of vacation entitlement. The article in question is Article 15. I will set it out in its entirety, The italicized portions represent the additions to the article in the new agreement. ARTICLE 15 VACATIONS 15,01 For the purpose of calculating eligibility, the vacation year shall be April 1st to March 31st each year. Vacation entitlement shall be based on years of service with the employer. Service credit for full time employees is based on their anniversary date as adjusted for any unpaid leave of absence other than parental leave. Service credit for part time, permanent part time, and casual employees is based on 1,725 hours with a maximum of 1,725 hours in a year. Employees [sic] transfer between employment statuses will have service credit calculated as follows: When transferring from full time to part time, permanent part time or casual status - for each complete full time year as qualified above - 1,950 hours. For each part of a full time year as qualified above - the number of days full time divided by 365 - "< x 1,950 hours, When transferring from part time, permanent part time or casual status to full time - for every 1,725 hours worked to a maximum of 1,725 in a year, one year of service. 15.02 A full-Time employee who has completed less than one (1) year of full-time continuous service as at March 31st shall be entitled to a vacation with pay on the basis of 1,25 days for each completed month of service, 15.03 A Full-Time employee who has completed one (1) or more years of continuous service as at March 31 st shall be entitled to an annual vacation with pay of fifteen (15) days. 15.04 A Full-Time employee who has completed three (3) or more years of service as at March 31st shall be entitled to an annual vacation with pay of twenty (20) days thereafter. 15,05 A Full-Time employee who has completed fifteen (15) years of service as at March 31st shall be entitled to an annual vacation with pay of twenty-five (25) days thereafter. 15,06 A Full-Time employee who has completed twenty (20) years of service shall be entitled to two point five (2.5) days vacation for each completed month of service from her anniversary date to March 31st of that year and an annual vacation with pay of thirty (30) days thereafter. 15.07 Part-Time employees shall be entitled to six percent (6%) vacation pay, At the time of the grievance, Ms, Smith had 24,093 hours of service. When that is divided by 1725, in accordance with the above formula, her hours convert to 13.97 years of service. Given that, the Union submits that the Grievor is entitled to 20 days of vacation in accordance with article 15.04. The Employer agrees with those conversion figures, but maintains that the 20 day entitlement then needs to be pro- rated by 60% to reflect her permanent part-time status and her actual hours of work, II Essentially, the Union argues that the addition of the conversion language changes the Grievor's vacation entitlement. (She had been receiving 12 days under the previous agreement), The Union's central submission is that if the Employer wanted to engage in a double proration - prorating hours into service and then prorating service into entitlement - the Employer was duty-bound to negotiate language that spelled that out clearly in the agreement at the time the conversion language was added. The addition of the conversion language, absent this proration language, prohibits the Employer from engaging in this second proration. Mr, Bevan notes that the conversion language was put into the vacation entitlement article only; it was not added to the language respecting seniority, generally. He submits, therefore, that the purpose of the new language was clearly to address vacation entitlement calculation, The Union also submits that the new conversion language is sufficient to address the apparent definitional problem of only full-time employees being entitled to vacation, 2 , . .. (Article 15.07 provides that "Part-Time employees shall be entitled to six percent (6%) vacation pay"). The Union alleges that the Grievor has never been treated as a part- timer by the Employer. While her status is something of a hybrid - she appears to get the perquisites of a full-time employee, though those entitlements are prorated, as vacation entitlement clearly had been - it is not disputed by the Employer that her status has always attracted vacation entitlement, unlike part-timers proper, In these circumstances, the only place in the agreement to which we can turn to determine the Grievor's entitlement are articles 15.02 to 15.06, And given that the conversion of hours into years of service places her in 15.04, she should be entitled to 20 days, Finally, the Union notes that there is no unfairness associated with this interpretation, The suggestion that the Grievor get 20 days of vacation, though she only works 60% of the time that a full-time employee works, does not unfairly advantage her vis-a-vis full -time employees, because it has taken her almost twice as many years of employment to qualify for the entitlement. The Employer's submission commenced with the 1992 letter of appointment which prorated at 60% all the terms and conditions of the Grievor's employment: salary, benefits and vacation entitlement. In the wake of the Union's assertion that the letter had been eclipsed by the collective agreement, the Employer realized that the collective agreement contained no definition of Permanent Part-time, though Article 13, the Hours of Work provision does make reference to "their letter of hire". The article provides: ARTICLE 13 HOURS OF WORK 13.01 (b) The regular hours of work for Part-time, Permanent Part-time and Casual employees shall be as follows: (i) For Part-time and Casual employees shall be 7 1/2 hours with a guaranteed minimum of 3 consecutive hours. (ii) For Permanent Part-time employees as per their letter of hire and shall be no less than three (3) hours, With respect to the recent amendments or additions to article 15,01 respecting the conversion language, the Employer submits that the only purpose of the new language was to address circumstances where an employee was changing her status from that of full-time to part-time or vice versa and should have no impact on the current practice respecting the Grievor's vacation entitlement. More generally, Mr, Gillen submitted that if the letter of hire had indeed been rendered nugatory by the collective agreement then the Grievor, at least respecting her vacation entitlement, does not seem to fit into the collective agreement. She is neither a full time employee nor a part-time one. On a strict reading of article 15, she would have 3 . , ..,. . to be characterized as a part-timer, with rights significantly inferior to the ones that she is currently enjoying, The Employer made it clear that that is not a result that they seek to visit upon the Grievor and not one that was in keeping with either the spirit of the Employer's relationship with the Grievor or with her original letter of hire, III While Mr. Bevan makes an interesting argument, I am not convinced that the addition of the new conversion language can be construed to have any impact on the Grievor's . historical vacation entitlement. I come to that conclusion for several related reasons. In the first place, I agree with the Employer that the purpose of the new language was to provide a conversion formula in the event that an employee was moving from full- time status to part-time status and back again, I have no doubt that elements of 15,01 SUPpoirt the Union's assertion that the conversion formula was meant to do more. By converting hours to years of service and adding that conversion to the pre-existing language in the first paragraph of 15.01, to wit: "Vacation entitlement shall be based on years of service", one could argue that the article is meant to convert hours of work directly into days of vacation entitlement. In effect, there was a formula for converting part-time into full-time and vice-versa and that ones status - full-time or part-time - was immaterial to vacation entitlement. The problem with that interpretation is that the scheme in article 15 has a key additional element that was not amended in the last round of negotiations. That additional element is found in the language of articles 15.02 through 15,07. 15.02 through 15,06 provide full-time employees with vacation entitlement. 15,07 provides that part-time employees do not get any vacation entitlement. To achieve the result being sought here, the Union needed to have amended this language so that the stark distinction between full-time and part-time entitlement to vacation disappeared, Obviously I that has not been done, It would be an unreasonable interpretation to read this clear distinction, and a contractually commonplace one, out of the scheme and I so find, Put differently, it would require that the conversion language in 15.01 clearly indicated that a transfer to full-time was not the event which triggered the applicability of the calculus. I appreciate that the Union does not take the position that all part-time employees are affected by the new language in 15.01, though, in my view, that is the necessary implication of its reliance on that language. The Union seeks to make a special case of Ms, Smith's circumstances as a permanent part-time employee, But it is not convincing that her special arrangement - she is a part-time who receives a pro-rated vacation entitlement - was meant to be further enhanced by the conversion language amendments and I so find, It is not necessary to opine on the nature of her "special arrangement" to determine 4 , .. . . ... . this matter and' I resist the impulse to do so. Suffice it to say that, from both the language of 15.01 and of the collective agreement as a whole, one can only conclude that permanent part-time employees, as their name implies, and despite their somewhat hybrid nature, are part-time employees nonetheless and not some variation of a full-time employee. IV For these reasons, I have concluded that the addition of the new "conversion" language in article 15.01 has not enhanced the Grievor's vacation entitlement. This grievance, therefore, is dismissed. DATED AT BARRIE THIS 21ST DAY OF MAY, 2004 ~ Dana Randall, Arbitrator 5