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HomeMy WebLinkAbout2021-2848.Defeo.24-05-31 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 GSB# 2021-2848 UNION# 2021-0719-0016 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Defeo) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Gail Misra Arbitrator FOR THE UNION Dan Sidsworth Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Michelle LaButte Ministry of the Solicitor General Labour Strategy & Employee Transition Manager HEARING February 28 and May 30, 2024 -2 - Decision [1] Since the spring of 2000 the parties have been meeting regularly to address matters of mutual interest which have arisen as the result of the Ministry of the Solicitor General as well as the Ministry of Children, Community and Social Services restructuring initiatives around the Province. Through the MERC (Ministry Employee Relations Committee) a subcommittee was established to deal with issues arising from the transition process. The parties have negotiated a series of MERC agreements setting out the process for how organizational changes will unfold for Correctional and Youth Services staff and for non-Correctional and non- Youth Services staff. [2] The parties agreed that this Board would remain seized of all issues that arise through this process and it is this agreement that provides me the jurisdiction to resolve the outstanding matters. [3] Over the years as some institutions and/or youth centres decommissioned or reduced in size others were built or expanded. The parties have made efforts to identify vacancies and positions and the procedures for the filling of those positions as they become available. [4] The parties have also negotiated a number of agreements that provide for the “roll- over” of fixed term staff to regular (classified) employee status. [5] Hundreds of grievances have been filed as the result of the many changes that have taken place at provincial institutions. The transition subcommittee has, with the assistance of this Board, mediated numerous disputes. Others have come before this Board for disposition. [6] It was determined by this Board at the outset that the process for these disputes would be somewhat more expedient. To that end, grievances are presented by way of statements of fact and succinct submissions. On occasion, clarification has been sought from grievors and institutional managers at the request of the Board. This process has served the parties well. The decisions are without prejudice but attempt to provide guidance for future disputes. [7] David Defeo is a Correctional Officer (“CO”) at the Kenora Jail. On December 22, 2021 Mr. Defeo filed a grievance claiming a breach of various articles of the collective agreement. The grievor claims that the Employer has denied him seniority in the calculation of his Continuous Service Date (“CSD”). By way of remedy the grievor seeks to have the Employer reinstate his seniority, apply previous vacation credits equivalent to his years of service, and to recognize his previous service for purposes of vacation entitlement going forward. [8] Mr. Defeo asserts that he began to accrue seniority in the Ontario Public Service (“OPS”) in April 2008 when he began working for the Ministry of Natural Resources and Forestry (“MNRF”). At that time the grievor was doing seasonal work in the Aviation, Forest Fire and Emergency Services pursuant to Article 32.4.1 of the collective agreement. -3 - [9] In March 2020 the grievor joined the Ministry of the Solicitor General (“SOLGEN”) as a fixed-term CO at the Kenora Jail, and in June 2021 he was rolled over into permanent classified status as a CO. He claims that at that juncture, in calculating his CSD, the Employer “took all previous seniority away” citing Art. 18.1(d). The grievor maintains that some or all of his past service at the MNRF was not counted in the determination of his CSD. According to the grievor, this is in violation of Appendix 64 and Articles 31A.16.1.1, 32.4.2.1(e) and Art. 32.21.1 of the collective agreement. The grievor also makes an argument based on section 56 of the Employment Standards Act, 2000 (the “ESA”). [10] The Employer undertook extensive research in order to provide the Union and the Grievance Settlement Board with a timetable of Mr. Defeo’s work in the OPS since April 2008. What became clear from my review of the evidence is that the grievor worked on seasonal contracts for the MNRF from April 2008 on for many years until the 2019 season when he took an approved leave of absence without pay commencing on April 27, 2019, was on hiatus from MNRF from November 11, 2019, and then joined SOLGEN at the Kenora Jail as a FXT CO on March 30, 2020. The grievor’s CSD at the time of the filing of this grievance was listed as March 30, 2020, and this is what he disputes. [11] During his time at MNRF, Mr. Defeo’s seasonal employment was governed by Art. 32, which addresses “Seasonal Employees”. A seasonal employee is defined in Art. 32.2.1 as an employee appointed for a period of at least eight consecutive weeks to an annually recurring full time position in the fixed-term service in a ministry. Pursuant to Art. 32.4.1 seasonal employees accumulate seniority following completion of their probationary period based on all straight time hours worked, and any periods of authorized paid leave under Art. 32.16. [12] Article 18 of the collective agreement addresses “Seniority (Length of Continuous Service)(FXT, RPT)”. For someone in the grievor’s position, who had been a seasonal employee at MNRF, but was later a FXT CO at SOLGEN at the time he rolled over into a classified CO position, Art. 18.1.1(d) is applicable. The relevant part of that Article states as follows: 18.1.1 An employee’s length of continuous service will accumulate upon completion of a probationary period of not more than nine (9) months and shall commence: … (d) effective January 1, 1984, from the date established by adding the actual number of full-time weeks worked by a full-time seasonal employee during their full-time employment back to the first break in employment which is greater than thirteen (13) weeks. [13] When the Employer had to calculate the grievor’s CSD in 2021 after the grievor rolled over, the Employer would have had to review all of its employment records for Mr. Defeo. His CSD was at the time determined to be the date he began to work at the Kenora Jail. As already noted, the Employer has now conducted an -4 - extensive and thorough review of the grievor’s employment record since he has been in the OPS. Based on those records, the last time that Mr. Defeo had a break in service greater than 13 weeks was between the end of his 2014 MNRF seasonal contract on October 13, 2014 and when he started back at the MNRF on a seasonal contract on January 26, 2015. That was a break of 15 weeks and one day. As such, the Employer has recalculated the grievor’s CSD based on all straight time hours worked for both the MNRF and SOLGEN from that last break in his service. It has now determined that Mr. Defeo’s CSD should be December 31, 2016. [14] The grievor argues that since his employment at the MNRF was never terminated between his seasonal contracts, therefore there was no break in his service. He does however state that he had a break in service for a hiatus between August 23, 2010 and April 4, 2011. Mr. Defeo therefore argues that the Employer should calculated his CSD from April 4, 2011 on. [15] Based on the evidence before me it is clear that until January 26, 2015 the grievor routinely had a hiatus of over 13 weeks duration between each of his annual seasonal contracts, as in addition to the 2010 to 2011 period which the grievor concedes, he was also on hiatus from mid-November 2011 to March 19, 2012; mid-October 2012 to January 21, 2013; mid-October 2013 to April 1, 2014; and the last such hiatus was from mid-October 2014 to January 26, 2015, as noted earlier. [16] Thereafter, Mr. Defeo’s hiatus periods between his seasonal contracts at MNRF were considerably reduced: He was off work on hiatus from December 20, 2015 to January 4, 2016; December 31, 2016 to January 2, 2017; and November 9, 2018 to January 21, 2019. Thus, based on the evidence I find that the Employer was correct to go back to the last break in Mr. Defeo’s employment which was greater than 13 weeks, which was the hiatus that ended on January 26, 2015. [17] With respect to the Employer position that Mr. Defeo’s over-13 week break in service occurred in the period following October 13, 2014, the grievor also argues that he continued to receive pay cheques thereafter, so he could not have been “terminated” at that juncture. There are two problems with this argument. The first is that having reviewed the payroll records for that time it is clear that the only payments Mr. Defeo received after his last period of full time work on his 2014 seasonal contract was for overtime he had worked, statutory holiday pay owing to him, and vacation pay, all earned while he was still working his seasonal contract that year. Any seasonal employee may be paid amounts owing to them following the date of termination of their seasonal contract, and such payments do not necessarily connote continuing employment of that individual on the date the payment was made. The second issue to be addressed is that at that juncture Mr. Defeo had not in fact been “terminated” as he puts it. He had simply been put on hiatus at the end of his seasonal contract for that year. However, it is not until any employee in appointed to a classified position, and has to have a CSD determined, that an analysis is required into their past work history to see if they have had a break in service for the purposes of Art. 18. -5 - [18] It is important to differentiate between the purposes of Art. 18 (which addresses all seniority for the purpose of determining a CSD) and Art. 32 (which only governs the employment of seasonal employees, not all FXTs in the OPS). Thus, while under Art. 32 a seasonal employee working in a specific Ministry, and in the same position each season, would accumulate seniority for all straight time hours worked (and would not lose that seniority except in the circumstances outlined in Art. 32.4.2.1, none of which applied to Mr. Defeo), that is for the purposes of the “Employment Stability” provision for seasonal workers, Art. 32.5.1.1. That provision entitles seasonal employees who have completed their probationary period to be offered employment in the same position in the following season on the basis of their seasonally-accrued seniority. There is no evidence in this case that Mr. Defeo was negatively affected by the 15 week break in his service following the October 2014 to January 26, 2015 hiatus (or any of his other long hiatus periods), and that would be because for the purposes of his “seasonal employee seniority”, within the Ministry in which he was employed at the time, he continued to have the benefit of his accrued seniority for the purposes of recall to seasonal employment in the same position. [19] It is worth noting that during the period that a seasonal employee is on hiatus between contracts, they are not an employee of the OPS. What they have is the right to an offer of recall, and have no obligation to accept such an offer. While on hiatus, although no longer a Crown employee, an individual may receive pay for various credits that are still owing to them even though they have finished their last day of work for that particular seasonal contract. [20] The grievor also argues that Art. 18 of the collective agreement is a provision in breach of the ESA. The grievor’s argument is convoluted and makes no sense since he appears to start from the premise that a seasonal employee continues to have the status of an OPS employee even when their seasonal contract has ended. That is simply incorrect. Section 54 of the Public Service of Ontario Act defines a fixed-term public servant as follows: A public servant employed under this Part whose employment is for a fixed term ceases to be employed by the Crown when that period expires. [21] The collective agreement defines a fixed term employee in Art. 1.3 as “a public servant appointed under Part 3 of the Public Service of Ontario Act, 2006 for a fixed term”. As already noted earlier, Art. 32.2.1 defines a seasonal employee as one who is “appointed for a period of at least eight (8) consecutive weeks in an annually recurring full-time position in the Fixed-Term Service in a ministry”. All of these provisions are consistent in that they anticipate that someone employed in the Fixed-Term Service, in this case a seasonal employee, is only a Crown employee for the fixed term of their employment. [22] A review of a letter sent to the grievor by the MNRF on November 23, 2020 regarding “Seasonal Recall Offer of Employment” is an example of how seasonal employees were offered employment from one season to the next. In it the grievor was advised of the term of the contract with a tentative start date in 2021 and a -6 - tentative end date in 2021, with the proviso that the full contract length was dependent on annual funding and staffing approvals. Thus, it is clear that each seasonal contract was a separate offer of employment, consistent with the PSOA definition of “fixed term” employment in the public service. When Mr. Defeo did not hold a contract, he was not a Crown employee, even though he may still have been paid credits that were owing to him following the completion of his seasonal contract and even though for the purpose of recall the following season, his previously-accrued seniority would be recognized. [23] The provincial government employs many types of employees on seasonal contracts, and as most of those contracts tend to end in periods when more than 50 people may be affected in a four week period, s. 58(1) of the ESA, regarding notice of termination for 50 or more employees applies to it. However, since an individual is told at the commencement of a seasonal contract what the approximate start and finish dates will be, they have effective working notice of termination of employment pursuant to the ESA provisions for larger scale terminations by one employer (s. 58(1) of the ESA). Contrary to the grievor’s argument, his situation was not governed by s. 56 of the ESA as he was not a permanent employee of the OPS, and he was not being “laid off” for 13 weeks or any other number of weeks. As already explained above, he was simply a seasonal contract employee who was employed for fixed terms each season. He only had a right to be offered recall to the same position in a following season due to the negotiated terms of the collective agreement. [24] This grievance is essentially the same as one addressed in Ontario Public Service Employees Union (Morgan) v Ontario (Solicitor General), 2020 CanLII 86046 (ON GSB). In that case the grievor had also worked for MNRF, as a seasonal worker in a Forest Fire Fighter position for 13 seasons. I found, based on the facts in that case that the Employer was required to go back to the last break in service of greater than 13 weeks to determine that grievor’s CSD (at para. 11 of the decision). [25] Having considered the evidence and the submissions of the parties, and for all the reasons outlined above, I am satisfied that the Employer has applied Art. 18 correctly in this instance in the recalculation of the grievor’s CSD. As such, the grievance is upheld in part, and the Employer is directed to change the grievor’s CSD to reflect the date of December 31, 2016. Dated at Toronto, Ontario this 31st day of May, 2024 “Gail Misra” Gail Misra, Arbitrator