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HomeMy WebLinkAboutSauve 10-06-29 REc~,v~n JUN ~ 2~to IN THE MATTER OF AN ARBITRATION BETWEEN: ONTARIO PUBLIC SERVICE EMPLOYEES UNION LOCAL 641 - and - INTEGRATION COMMUNAUTAIRE COCHRANE COMMUNITY LIVING GRIEVANCE OF RON SAUVE JANE H. DEVLIN SOLE ARBITRATOR MARION MELVILLE, FOR THE UNION GUY A. WAINWRIGHT, FOR THE EMPLOYER 1 In the grievance which was filed in February, 2009, Ron Sauve alleges "specifically but not exclusively" that his rights under Articles 4, 11.06 and 11.07 of the collective agreement were violated as he was not assigned to fill a vacancy in a permanent part-time position. Article 4 of the collective agreement, which is referred to in the grievance, contains the management rights clause. Articles 11.06 and 11.07, which are also referred to in the grievance, are included in Article 11 and these Articles, together with Article 11.08, provide as follows: ARTICLE 11 - LEAVES OF ABSENCE 11.06 Temporary Assignments Resulting from Leaves of Absence under Articles 11.01,11.02,11.05. Where a full-time position becomes vacant as a result of a leave of absence in accordance with Articles 11.01, 11.02 or 11.05 and such leave is known to be more than two (2) weeks, such temporary vacancies will be filled by permanent part-time or casual employees in accordance with Article 11.07. When such temporary vacancies are known to be longer than ninety days the temporary vacancy will also be offered to full-time employees in accordance with Article 11.07. Subsequently if a permanent part-time temporary vacancy then occurs the position will be offered to permanent part-time or casual employees on the basis of seniority provided that the most senior applicant is able and qualified to perform the work without training other than orientation. 11.07 The Employer shall offer temporary vacancies arising from a leave of absence under 11.06 to employees by way of posting the job vacancy notice for a period of seven (7) consecutive calendar days. 2 The temporary vacancy shall be filled on the basis of seniority provided that the most senior applicant is qualified to perform the work without training other than orientation. 11.08 Temporary Assignments Should temporary assignments create a vacancy in permanent part-time or casual position, reassignment among permanent part-time and casual employees will not take place unless the reassignment would increase the part-time employees scheduled hours over a six week period by more than 20 hours. The Agency in this case provides support to developmentally challenged adults in the community and the evidence indicates that there are approximately 30 employees in the bargaining unit. At the time of the events giving rise to the grievance, employees were categorized as full-time, permanent part-time or casual part-time. Chantal Paquette, the Executive Director of the Agency, testified that full-time employees were regularly scheduled to work 72 to 80 hours in a two-week pay period. She also testified that permanent part-time employees worked some regularly scheduled shifts and were assigned additional shifts to a maximum of 68 hours in a pay period. Casual part-time employees were not assigned to regularly scheduled shifts unless they were replacing a full-time employee who was absent. The Grievor began his employment with the Agency in 2000 and currently works on a full-time basis as a Residential Counselor. At the time of the grievance, he was the most senior casual part-time employee. 3 With regard to the events that gave rise to the grievance, the evidence indicates that from mid-February to late April, 2009, a full-time employee by the name of Brenda Hawryluk was absent on sick leave. From late April to late June, 2009, another full-time employee by the name of Nicole Dubeault was also absent on sick leave. During the absence of these employees, their positions were filled by a permanent part-time employee by the name of Rhonda Prevost. The hours of Ms. Prevost's permanent part-time position were then distributed among casual part-time employees. As a casual part-time employee, the Grievor shared the hours in question but as he had the greatest seniority, it was his view that he ought to have been assigned to fill Ms. Prevost's position. He testified that this did not occur because he was being "targeted" by Mac Hiltz, who was the Executive Director of the Agency at the time. Apart from evidence of the events giving rise to the grievance, evidence was also introduced regarding the Employer's past practice in filling temporary vacancies. The Grievor testified that during the course of his employment, when a full- time employee was absent as a result of sick leave or for other reasons, his or her position was filled by a permanent part-time employee and the position of the permanent part-time employee was then filled by the most senior casual part-time employee. The Grievor also testified that when this procedure was not followed in 2008, he filed a grievance which was resolved by the parties. Although the terms of the settlement were referred to in evidence, as the settlement was specified to be without 4 prejudice or precedent, I do not propose to consider it in determining Mr. Sauve's grievance. Ms. Paquette, who worked as a Program Director for ten years prior to assuming her current position in late 2009 or early 2010, testified that in the past, there were a number of occasions when full-time employees were absent on sick leave and the Employer followed the procedure described by the Grievor. She testified, however, that on other occasions, when a permanent part-time employee replaced a full-time employee who was absent, the hours of the permanent part-time position were distributed among casual part-time employees. She testified that the procedure followed in a given case depended on the availability of shifts. In this regard, she explained that during the summer months when a significant number of shifts were available for casual part-time employees, the permanent part-time position was often filled by the most senior casual part-time employee. However, in the winter months when fewer shifts were available for casual part-time employees, the hours of the permanent part-time position would be distributed among all casual part-time employees. Ms. Paquette testified, as well, that the Employer never advised employees that it would follow the procedure for filling temporary vacancies set out in Article 11 of the collective agreement in circumstances where employees were absent on sick leave and that she was not aware of complaints in that regard. Ms. Paquette also testified that when Ms. Prevost was assigned to fill the temporary full-time vacancies resulting from the absences of Ms. Hawryluk and Ms. 5 Dubeault in 2009, the hours of Ms. Prevost's permanent part-time position were distributed equally among all casual part-time employees. Accordingly, Ms. Paquette testified that the Grievor received the same number of hours as other casual part-time employees. She also testified that Mr. Hiltz never told her to treat the Grievor differently from other employees. It was the submission of the Union that Articles 11.06 and 11.07 of the collective agreement set out the procedure to be followed in filing vacancies arising from personal leaves of absences without pay under Article 11.01, pregnancy and parental leave under Article 11.02 and Union leave under Article 11.05. The Union further submitted that it is significant that Article 11.07 specifies that temporary vacancies are to be filled on the basis of seniority. The Union also noted that Article 11.08, which is headed "Temporary Assignments" provides that where temporary assignments create vacancies in permanent part-time or casual part-time positions, reassignments among permanent part-time and casual part-time employees will not take place unless the reassignment would increase the permanent part-time or casual part-time employee's scheduled hours by more than 20 over a six week period. The Union contended that in contrast to Articles 11.06 and 11.07, Article 11.08 is silent with respect to the types of leaves to which it applies and, by default, applies to all temporary assignments that meet the threshold set out in that Article. The Union also contended that in this case when Ms. Prevost temporarily filled the full-time positions of Ms. Hawryluk and Ms. Dubeault, there was a resulting 6 vacancy in Ms. Prevost's permanent part-time position. The Union submitted that in accordance with Article 11.08, it was incumbent on the Employer to determine whether assigning the Grievor to that position would increase his scheduled hours by more than 20 over a six week period. It was contended, however, that there was no evidence that the Employer compared the hours worked by Ms. Prevost with the hours worked by the Grievor or considered its obligations under Article 11.08 of the collective agreement. Had the Employer done so, the Union submitted that it would have discovered that the threshold set out in Article 11.08 had been met. In these circumstances, the Union contended that the Grievor is entitled to be compensated for lost wages arising from the Employer's failure to assign him to Ms. Prevost's permanent part-time position when she filled the full-time positions of Ms. Hawryluk and Ms. Dubeault. It was the submission of the Employer that the Union is attempting to change the nature of the grievance as the grievance makes no reference to Article 11.08, nor was that Article addressed during the grievance procedure. The Employer further submitted that Articles 11.06 and 11.07, which are referred to in the grievance, have no application as those Articles apply only to temporary assignments resulting from leaves of absence under Articles 11.01, 11.02 and 11.05. Those Articles, it was contended, make no reference to absences due to sick leave and the subject of sick leave is dealt with in Article 16.04 of the agreement. Moreover, even if Article 11.08 were to be considered, the Employer submitted that the Article does not create an independent obligation to fill temporary vacancies and instead, applies only when the Employer is filling a temporary vacancy under Article 11.07. In this regard, the 7 Employer submitted that Article 11.08 was apparently designed to avoid disrupting a part-time employee unless a temporary assignment would increase his or her scheduled hours by more than 20 over a six week period. By way of reply, the Union submitted that the grievance expressly provides that the Grievor's claim was not based exclusively on Articles 11.06 and 11.07 of the collective agreement. Moreover, although Article 11.08 may not have been discussed by the parties during the grievance procedure, the Union maintained that as the more sophisticated party, it was incumbent on the Employer to make a full inquiry with regard to each provision of Article 11. The Union further contended that the Employer was clearly on notice that Article 11 was in issue and that the provisions of Article 11.08 cannot be ignored. This Article, it was submitted, must be interpreted in the context of Article 11 as a whole. The Union also contended that contrary to the Employer's submission, Article 11.08 is intended to protect the Employer by relieving it of the requirement to reassign a permanent or casual part-time employee to fill a temporary vacancy unless the employee's scheduled hours would be increased by more than 20 over a six week period. The Union maintained, however, that when a temporary vacancy arises, in each case, the Employer must make an inquiry to determine whether the threshold set out in Article 11.08 has been met. Decision 8 It is necessary to begin by considering the nature and scope of the grievance filed by Mr. Sauve. As noted previously, the grievance alleges "specifically but not exclusively" that the Grievor's rights under Article 4, Article 11.06 and Article 11.07 were violated as he was not assigned to fill a vacancy in a permanent part-time position. Article 4 contains the management rights clause. Article 11.06, which is set out above, deals with temporary assignments resulting from leaves of absence under Articles 11.01, 11.02, 11.05. Article 11.01 deals with personal leaves without pay and leaves of absence for employment purposes. Article 11.02 deals with pregnancy and parental leave and Article 11.05 deals with Union leave. Article 11.06 provides that where a full-time position becomes vacant as a result of a leave under Articles 11.01, 11.02 and 11.05 and the leave is known to be for more than two weeks, the temporary vacancy shall be filled by permanent part-time or casual part-time employees in accordance with Article 11.07 of the agreement. Article 11.06 also provides that where the temporary vacancy is known to be for more than 90 days, it shall also be offered to full-time employees in accordance with Article 11.07. Finally, Article 11.06 provides that if a permanent part-time temporary vacancy subsequently becomes available, the position will be offered to permanent part-time or casual part-time employees on the basis of seniority provided that the most senior applicant is able and qualified to perform the work without training other than orientation. 9 Article 11.07, which is also referred to in the grievance, provides that the Employer shall offer temporary vacancies arising from leaves of absence under Article 11.06 by posting the vacancy for a period of seven consecutive calendar days. Article 11.07 also reiterates the provision in Article 11.06 to the effect that the vacancy shall be filled on the basis of seniority provided that the most senior applicant is qualified to perform the work. In the result, Article 11.06 deals with temporary full-time vacancies arising from leaves of absence under Article 11.01, 11.02 and 11.05 as well as subsequent vacancies in permanent part-time positions. Article 11.07 then sets out the procedure for filling temporary vacancies under Article 11.06 and, in my view, it is clear from the language of Articles 11.06 and 11.07 that these Articles concern vacancies which can be traced to leaves of absence under Articles 11.01, 11.02 and 11.05. These Articles deal with personal leave without pay, leave for employment purposes, pregnancy and parental leave and Union leave. The subject of sick leave, in contrast, is dealt with in Article 16.04 of the collective agreement. In this case, Ms. Prevost was assigned to fill vacancies resulting from the absence of two full-time employees, namely, Ms. Hawryluk and Ms. Dubeault. These employees were absent on sick leave and although there were then available hours in Ms. Prevost's permanent part-time position, the initial temporary full-time vacancies did not result from leaves of absence under Articles 11.01, 11.02 or 11.05. Accordingly, I am compelled to conclude that Articles 11.06 and 11.07 have no application in the 10 circumstances of this case. Moreover, although there was some conflict in the evidence regarding the Employer's past practice in filling temporary vacancies resulting from sick leave, based on the testimony of Ms. Paquette, who was not cross-examined, I find that no consistent practice was established. Instead, in some cases, where a permanent part-time employee filled a temporary full-time vacancy, the permanent part- time position was filled by the senior casual part-time employee. In other cases, the hours of the permanent part-time position were equally distributed among all casual part-time employees. I also find that there was no evidence to support the Grievor's claim that he was not assigned to Ms. Prevost's position because he was being targeted by Mr. Hiltz. As to Article 11.08, this Article, which is headed "Temporary Assignments", provides that if temporary assignments create a vacancy in a permanent part-time or casual part-time position, reassignment among permanent part-time and casual part-time employees will not take place unless the reassignment would increase the part-time employee's scheduled hours by more than 20 over a six week period. Although much of the Union's submission focused on Article 11.08, as noted by the Employer, this Article is not referred to in the grievance, nor was it discussed during the grievance procedure. Moreover, I cannot accept the Union's submission that it was incumbent on the Employer to inquire into each provision of Article 11 during the grievance procedure. While the grievance refers specifically but 11 not exclusively to Articles 11.06 and 11.07, it was, nevertheless, incumbent on the Union to advise the Employer of the nature of the Grievor's claim. In any event, even if I were to consider the provisions of Article 11.08, I find that the Article does not assist the Union. Article 11.08 follows immediately after Articles 11.06 and 11.07 and is headed "Temporary Assignments" which is a term that also appears in the heading of Article 11.06. As noted previously, Articles 11.06 and 11.07 deal with temporary assignments resulting from leaves of absence under Articles 11.01, 11.02 and 11.05 as well as subsequent vacancies that may arise when the initial temporary vacancies are filled. Under the provisions of those Articles, permanent part- time and casual part-time employees have certain rights to such vacancies. In this context, I find that Article 11.08 restricts the reassignment of permanent part-time and casual part-time employees where temporary assignments result in vacancies in permanent part-time or casual part-time positions. In this regard, Article 11.08 provides that reassignment will not take place unless it would increase the part-time employee's scheduled hours by more than 20 over a six week period. In this respect, I find that Article 11.08 is directly related to temporary vacancies that can be traced to Article 11.06 and does not give an employee an independent right to claim a vacancy regardless of the reason for the initial vacancy. In this case, the temporary vacancies filled by Ms. Prevost were the result of sick leave which is dealt with in Article 16.04 of the collective agreement. The vacancies were not the result of leaves of absence under Articles 11.01, 11.02 or 11.05 12 of the collective agreement and, in these circumstances, I find that Articles 11.06, 11.07 and 11.08 have no application. Accordingly, for the reasons set out, no violation of the collective agreement has been established and the grievance of Mr. Sauve must be dismissed. DATED AT TORONTO, thisi~ay of June, 2010. ~~~ Sole Arbitrator