HomeMy WebLinkAboutHough et al 12-08-07Between:
IN THE MATTER OF AN ARBITRATION
Pursuant to the Labour Relations Act, S.O. 1995
ONTARIO SHORES CENTRE FOR MENTAL HEALTH SCIENCES
(the Employer)
- and -
ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 331
(the Union)
Re: Article 31.01 - Seniority - Individual Grievances
OPSEU #2010 - 0331 -0139 / ER 2010 -137 — Sherry Shanahan
OPSEU #2010 - 0331 -0089 / ER 2010 -088 — Deanna Hough
OPSEU #2010 - 0331 -olq % / ER 2010 -190 — Sandra Cosentino
APPEARANCES:
For the Employer:
Craig Rix, Counsel
Camille Thomas
Denise Svajlenko
AWARD
Paula Knopf - Arbitrator
For the Union:
Jane Lefton, Counsel
Patti Lang
Jonathon Leung
The hearing of this matter was held in Whitby, Ontario on July 25, 2012.
This matter involves a claim for seniority rights. The Union is asserting that the
Employer has failed to preserve seniority status earned and promised to three
individuals. Prior to a consideration of the merits of the cases, the Employer raised
preliminary objections, claiming that the facts and context are such that this Arbitrator
has no jurisdiction over the matter. In order to address the objection, the parties agreed
to the following facts and asked for a ruling before calling evidence on the merits of the
case:
Full -time to Part -time Transition
On March 27, 2006, Whitby Mental Health Centre (WMHC) divested from the
Ministry of Health. A divestment agreement governed that divestment. WMHC
was not a successor employer for labour relations purposes. The Employees
were offered employment with the then unorganized Whitby Mental Health
Centre [and] the Union and the Employer [then] concluded a voluntary
recognition agreement that established bargaining rights effective March 27,
2006. The parties subsequently concluded a first collective agreement in January
2008 for an effective period of March 27, 2006 to March 31, 2009.
2. When the Ministry of Health was the Employer for Whitby Mental Health Centre,
now Ontario Shores, it is the parties understanding for the purposes of this
motion only that there was an employer practice whereby employees who moved
from full -time to part -time had to resign their positions and be re- hired. The
employees would have their employment severed and would be provided with a
new continuous service date that corresponded with the commencement of their
part -time position.
3. Prior to the March 27, 2006 divestment of staff from the Ontario Government to
the new Whitby Mental Health Centre (as it was then known), the OPS
employees' pre- divestment bargaining agent, OPSEU, was provided the
opportunity to review the divestment agreement between the Crown and WMHC
prior to its execution pursuant to the reasonable efforts provisions of Articles 9
and 18 of the collective agreement in force at the time.
4. Pursuant to the reasonable efforts process in the predecessor employer's
collective agreement, each of the grievors below were provided offers of
employment prior to divestment. The offers of employment included a
Continuous Service Date [CSD] consistent with the commencement of their part-
time position. Each grievor signed the offer of employment.
5. The grievors below did not file a grievance at the time they were severed from
full -time employment and provided a new CSD to reflect the commencement of
part-time employment.
6. The grievors below were provided their offers of employment at least two weeks
prior to the divestment date of March 27, 2006. None of the grievors filed a
grievance disputing their CSD at any time prior to the severing of their
employment from the OPS and the commencement of new employment with the
Whitby Mental Health Centre [as it was then called].
7. Post divestment and following the conclusion of the first collective agreement, the
Employer posted seniority lists which reflected different seniority calculations.
Sherry Shanahan
1. Current CSD March 17, 2006
2. Start date June 5, 2000
3. Work history
a. June 5, 2000 P/T PCA
b. June 16, 2000 F/T PCA
c. Education leaves: Sept 2003 -Dec 2003 (4 months); Jan 2004 -April 2004
(4 months); Sept 2004 -May 2005 (9 months)
d. July 15, 2005 resigned as PCA and understood that she was required by
HR to resign before she could be placed in RPN position. Ms. Shanahan
did not wish to resign; however, she understood that she was required to
do so in order for her to obtain her RPN position
e. No severance was received
f. August 3, 2005 hired as P/T RPN with start date of August 22, 2005
g. April 24, 2006 — January 27, 2007 FT contract
h. Jan 28, 2007 F/T RPN
4. At divestment Ms. Shanahan received severance for the time period from June 5,
2000 until March 27, 2006. Her continuous service date is noted as August 22,
2005.
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5. Ms. Shanahan did not contest this continuous service date as it was her
understanding that she could only seek to recoup her seniority pre August 22,
2005 if she returned to full -time. Ms Shanahan's evidence would be:
"/ did not grieve being told that l had to resign to change categories from full time
classified to part time unclassified employee because l had gone to HR three
times to ask them if that was in fact correct and if there was no other way. They
told me three times that was the only way. / knew that l would get my seniority
back when I went full time again under article 18. Once l did go full time l did ask
for my time back and had it back for three years. / have the documents I sent to
the MOH requesting my hours at HR request and I have the document Erna used
to come up with my seniority when it was given back. As soon as the new
employer took it the second time I did file a grievance and here we are"
6. January 28, 2007 Ms. Shanahan accepts a permanent full -time position.
7. February 15, 2007 Ms. Shanahan requests her payroll history from MOH for time
period from June 5, 2000 — July 16, 2005 and August 22, 2005 -March 26,2006
for purposes of recalculation under Article 18.1(b)
8. May 8, 2007 CSD and vacation dates recalculated to January 20, 2002 by Erna
Lamb (Ontario Shores HR) by presumably applying the previous employer's
collective agreement provision Article 18.1(b)
9. In May 2007, after receiving hours directly from the Ministry of Health, Janet
Walker in Human Resources confirmed the January 20, 2002 CSD in writing.
10. December 9, 2008 Employee Personnel and Position form identifies Ms.
Shanahan's seniority date as January 20, 2002
11. February 4, 2009 Ms. Erna Lamb enters notation that Ms. Shanahan
understands her adjusted seniority date and that no credit is given for leave
without pay for educational purposes
12. The January 20, 2002 [date] was reaffirmed on August 24, 2009 by Ms. Deena
Durack
13. June 2010 received new CSD of March 17, 2006 as set out in a letter from Sue
Lytwyn who states the recalculation was in response to an inquiry
14. In 2010, following discussions with the union respecting the manner of
calculating seniority, the Employer recalculated the seniority of individuals with
pre- divestment service. That exercise resulted in a change in the seniority date
of some employees who subsequently grieved that change
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Deanna Hough
1. Current CSD March 1, 2004
2. At the time of the grievance Ms. Hough was part time and her seniority hours
were 12553.50. She transferred to full time permanent staff on May 30, 2011
and her seniority was converted to a date. Her current seniority date (as posted
March 2012 and using the Knopf award formula) was February 5, 2007
3. Work History:
a. October 4, 1993 — January 3, 1994 Part Time Unclassified as GO Temp
b. January 4, 1994 — February 27, 2004 Full Time Classified
c. February 27, 2004 resigned and received severance pay
d. March 1, 2004 started Part Time Unclassified positions
e. May 19, 2011 began Full Time position
4. It would be her evidence that when she resigned on February 27, 2004, she was
not informed that receiving her severance would be viewed by the former
Employer as a break in service.
5. At divestment Ms. Hough received an offer of employment letter stating that her
Continuous Service Date is March 1, 2004. It would be Ms. Hough's evidence
that she did not understand that this date was from which her seniority accrued.
6. February 2009 seniority list is posted with Ms. Hough's seniority date
encompassing all hours worked, pre and post resignation.
7. 2010 seniority list is posted with Ms. Hough [having] a different seniority date,
encompassing only hours worked post resignation. She files grievance on March
29, 2010. It is at this point that she became aware that there was an issue with
her seniority.
Sandra Cosentino
1. CSD February 23, 2004
2. On January 13, 2011 Ms. Cosentino accepted layoff with no recall rights with the
grievor's own disclaimer stating that "I am filling out this option form without
prejudice or precedent because I reserve my right to challenge the accuracy of
my seniority which I have been pursuant to the Articles 31, 32 and 9 of the
Collective Agreement. Pending my determination of seniority accuracy I am
choosing the option of acceptance of layoff with no recall rights. Severance to be
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paid on April 14, 2011 as indicated on my letter received December 14, 2011.
My option is also without prejudice pending the outcome of relevant grievances."
3. Work History:
4. Sept 29, 1993 — Dec 26, 1993 GO Temp
a. Dec 27, 1993 - Nov 29, 1996 FT unclassified
b. Nov 30, 1996 - Aug 24, 1997 PT unclassified
c. Aug 25, 1997- Dec 26, 1999 FT unclassified
d. Dec 27, 1999 - Dec 21, 2003 FT classified — received severance
e. Feb 23, 2004 - April 14, 2011 PT unclassified, layoff
5. Ms. Cosentino's evidence would be that she did not understand that when she
received severance and resigned on December 21, 2003 that this would affect
seniority, specifically, the implications for her seniority with her continuous
service date of February 23, 2004.
6. Ms. Cosentino initiated a grievance when she realized upon layoff that her
seniority was calculated as beginning with her part -time service.
The claims of the three Grievors must be analyzed in the context of the Collective
Agreement. The relevant provision is:
Article 31.01 - Seniority
Definition
Seniority shall be defined as an employee's length of employment within the
Centre bargaining unit. Service shall be defined as the continuous length of
employment from the most recent date of hire.
With the following exceptions:
a) All full time employees in the bargaining unit hired prior to March 27, 2006
shall have their continuous service date calculated including all periods of
employment with the former employer, the Crown.
b) Each part time, job share and casual employee in the bargaining unit who
was employed by the Centre on March 27, 2006 shall be given credit for
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service at the Centre as a Crown employee. Continuous services as at
March 27, 2006 shall be calculated on a pro -rated basis for all regular non -
overtime hours worked immediately prior to March 27, 2006.
It should also be noted that this Arbitrator issued an Award between the parties on
December 15, 2010 dealing with a number of seniority issues. That Award contained
the following conclusion that is relevant to this case:
The effect of the Letter of Hire for employees hired as of March 27, 2006:
For those who, during their tenure with the OPS, were either full time, regular
part time, unclassified part time, unclassified full time, or some possible
combination thereof, their seniority shall be calculated on the basis of the actual
full and part -time regular non - overtime hours worked during the period of
continuous services indicated in the Letter of Offer, unless an individual can
demonstrate that the Continuous Service Date is in error pursuant to the OPS
collective agreement in place as of February 2006.
Employees moving from unclassified /part -time to full -time hours post Divestment:
As per the parties' shared understanding, seniority shall be calculated as follows:
A = [Number of pre- Divestment hours worked at 40 or more hours per week, not
including overtime], divided by 1912,
Plus
B = [Number of post- Divestment hours worked, not including overtime], divided
by 1950,
S = Seniority
Therefore, A + B = Seniority
1912 1950
The parties also agreed that post- divestment, the Employer posted Seniority Lists as
required under the first Collective Agreement. Those Lists often reflected differing
calculations of seniority for the Grievors. For example, the List posted in February 2009
reflected all the time the Grievors ever worked, including their pre- divestment/pre-
resignation service. Subsequent Lists reflected the calculation as reflected in the CSD
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in their letters of offer, except for Ms. Shanahan, as set out above. Since the Award
issued by this Arbitrator in December 2010, the Employer has consistently issued a
Seniority List that does not credit the Grievors' pre- resignation /pre- divestment full -time
service. Instead, it uses the CSD based upon their assumption of full -time status.
The Submissions of the Parties
The Submissions of the Employer
The Employer argued that this Arbitrator has no jurisdiction under the current Collective
Agreement over the seniority claims being asserted on behalf of the Grievors. It was
stressed that the agreed facts reveal that while the three Grievors were employed by
the Whitby Mental Health Centre when it was owned and operated by the Ministry of
Health, that is a different legal entity from Ontario Shores, the current Employer.
Further, Ontario Shores is not a successor employer because there was no provision in
the Crown Employees Collective Bargaining Act or the Labour Relations Act at the time
to characterize the divestment as a "sale of business" or create successorship rights.
Therefore, it was pointed out that there was no legal avenue for the Union to achieve a
declaration of successorship rights at the time. Accordingly, it was stressed that Ontario
Shores is a completely different and separate legal entity from the previous employer
and did not inherit the terms of the Collective Agreement in place at the time of
divestment.
This Employer also argued that the facts that the Union is relying upon occurred pre -
divestment and that the Grievors are seeking recognition of a period of service that
arose with a legal entity that is different than the current employer. It was also stressed
that the claim is based upon an allegation of improper conduct of another employer that
could or should have been grieved at the time it occurred. Further, the Employer
pointed to the documentation that reveals that the Grievors all resigned their full -time
positions from the OPS and accepted severance pay for the loss of their full -time status
and any accrued seniority. Thereafter, they signed offers of part-time employment with
the previous employer, accepting a new CSD that reflected their new part-time status.
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This Employer argued that an arbitrator under the current Collective Agreement would
have no jurisdiction to determine the propriety of these actions that occurred with a
different employer under a different contract.
This Employer takes the position that if the Grievors were treated improperly by being
made to resign their full -time positions when they wanted to switch to part -time status,
the time to have complained about that would have been either at the time it occurred or
prior to divestment in order to ensure that the new legal entity would be legally bound to
recognize any accrued seniority status.
This Employer argued that this Arbitrator's jurisdiction is confined to the current
Collective Agreement and the rights of the parties to it, thereby precluding any scrutiny
of actions or misconduct committed by a different employer under a different Collective
Agreement. Therefore, the Employer asserted that unless the Union can now show an
improper calculation of the Grievors' seniority since Divestment, this Arbitrator has no
jurisdiction over the seniority claims being asserted by the Grievors.
In support of its arguments the Employer relied upon Canadian Labour Arbitration,
Fourth Edition (Brown & Beatty), 2:3110; St. Peter's Hospital and Canadian Union of
Public Employees Local 778, (2002) 109 L.A.C. (4th) 89 H. E. Brown].
In the alternative, the Employer argued that the Union is trying to expand the scope of
the original grievance. This argument shall not be recited because the case can and
will be determined on the basis of the Employer's primary submissions.
The Submissions of the Union
Counsel for the Union stressed that the Grievors have slightly different circumstances
and deserve to be considered separately. It was pointed out that Ms. Shanahan has
received one letter from this Employer crediting her with seniority dating back to
January 2002 and yet had a letter from the WMHC at the time of divestment stating her
CSD was August 22, 2005. Therefore, it was argued that she had no way of knowing
that her seniority status was not as she had been promised until the time that this
grievance was filed. Further, Ms. Shanahan and the other Grievors could not have
appreciated that their CSD or seniority would have been affected by their forced
"resignation" when they sought to change to part -time status. While the Union properly
acknowledges that it cannot ask this Arbitrator to "look behind" the Grievors'
resignations, the Union does ask that all their service as Crown employees be
recognized under the current Collective Agreement.
The Union emphasized the importance of seniority rights under collective agreements
because of their impact on critical issues such as job security, job postings and vacation
entitlement. Further, it was stressed that seniority rights are ongoing and "continuing"
grievances that survive successive collective agreements. Therefore, the Union argued
that the current Employer has the obligation to properly recognize the seniority status
that ought to have been retained by the Grievors. It was also said that this obligation is
codified in Article 31.01 of the Collective Agreement wherein this Employer agreed to
recognize service with the Ministry of Health. Counsel stressed that all the Grievors are
seeking is recognition for the years of service they devoted to this facility that should not
have been wiped out simply because they decided to change their status to part -time in
order to accommodate their family and personal obligations. The Union also placed
great emphasis on the fact that these Grievors were promised that their accrued
seniority would be re- credited when and if they returned to full -time status. Therefore, a
great injustice would result if this promise is not honoured. In support of these
arguments, the Union relied upon Parking Authority of Toronto and Canadian Union of
Public Employees Local 43, (1974) 5 L.A.C. (2d) 150 (Adell); Religious Hospitallers of
St. Joseph of Hotel Dieu of Kingston v. Ontario Public Service Employees Union, Local
452, (1992) 29 L.A.C. (4th) 326 (Stewart); Ottawa - Carleton and Canadian Union of
Public Employees, (1990) 16 L.A.C. (4th) 353 (Haefling).
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The Decision
This decision must be based upon the Agreed Facts, the Collective Agreement and the
scope of the objection. It cannot and does not deal with the merits of the Grievors'
claims. Ms. Shanahan's claim is based upon promises made to her many years ago,
when she was told that she had to resign from a full -time position in order to take on
part -time status with the same employer and that her seniority would be re- credited if
she returned to full -time status. Ms. Shanahan and the other Grievors' claims are also
based upon the assertion that they ought not to have been made to resign and that they
should have been allowed to retain their original CSD date. However, all that can be
addressed at this point is whether this Arbitrator has the legal authority to adjudicate
upon the merits of the claim. For all the reasons that follow, it must be concluded that
there is no jurisdiction basis to make the rulings that the Union is seeking.
Before turning to the reasons for the upholding of the Employer's primary preliminary
objection, it should be noted that the Grievors' frustration is understandable. They
understood or assumed that they would be credited with all their past service when they
returned to full -time status. They also understood that they had no choice other than to
resign their full -time status in order to become part - timers. Any promises that were said
to have been made to them were not implemented and their return to work or
assumption of part-time status was deemed to create a new CSD. Therefore, they now
find themselves with no credit for their years of service prior to their resignations. It is
true that they all ultimately received severance pay and therefore got some recognition
for that previous service. But hindsight makes them now realize that they might be far
better off having that past service added now to their seniority under this Collective
Agreement. They are also doubly frustrated by the fact that even this Employer issued
some Seniority Lists indicating their seniority to be what they wished it to be. However,
those postings occurred during a period when there was confusion between the current
parties over their respective seniority rights and obligations. That confusion was put to
rest with the issuance of the December 15, 2010 Award. Since that time, the Seniority
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Lists have conformed with the Award and given credit to the Grievors for all their
service, except for the periods before they became part- timers.
Turning to the preliminary objection to jurisdiction, counsel for the Union was right in
asserting that this Employer had assumed and must honour the Continuing Service
Date, including all periods of employment with the Crown, for all full -time employees in
the bargaining unit hired prior to March 27, 2006, as per Article 31.01. However, the
Agreed Facts reveal that the Employer is honouring the CSD Date that the Crown
credited to the Grievors. It is true that CSD did not take into consideration the pre -
resignation or previous full -time service within the OPS. But it is equally true that the
Grievors did resign their full -time status and accepted a new Continuing Service Date
consistent with the commencement of their part-time position. Why that happened and
whether it was a proper exercise of management rights is a question that goes to the
merits or justice of the Grievors' case. However, when that happened, the Employer
was the Ministry of Health, not the current Employer. Thereafter, when Divestment
approached, each of the Grievors was provided with offers of employment prior to the
effective date. The offers of employment to the Grievors included a Continuous Service
Date consistent with the commencement of their part-time position. Each Grievor
signed the offer of employment that was not challenged at Divestment. That same date
is what the current Employer recognizes as being operative.
To adjudicate the question of whether another date or the pre- resignation service
should be recognized, an arbitrator would have to consider the actions of another legal
entity, the Ministry of Health, who was the Grievors' employer at the time of their
resignations. While legislation was passed after Divestment in 2008 that would have
created successorship rights and obligations in similar circumstances, this Union does
not have the benefit of such legislative or legal mechanism that could bind this
Employer with the alleged misconduct or promises made on the behalf of the previous
employer. Absent such legal basis, this Employer cannot become liable for or
responsible for the actions of another that may have occurred before it even became
the Grievors' employer. Similarly, absent any contractual or legislative basis for this
Employer's liability for a previous entity's actions and absent linkage to any obligations
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under a previous Collective Agreement, an arbitrator under a current Collective
Agreement has no jurisdiction to adjudicate issues that arose between different parties
under a different contract.
Nor can the issues in this case be properly characterized as "continuing grievances."
While seniority rights may often be continuing matters, the very nature of these
grievances are tied to discrete events that occurred before this Collective Agreement
and this Employer were on the scene. As the Union properly acknowledged, the Union
cannot now go behind the resignations and /or seek to set them aside. However, that is
the only way that the CSD could be altered because, by definition, it marks the date
upon which continuous service begins to be counted. The Grievors' resignations
brought an end to their previous continuous service and their acceptance of part -time
status started the clock running again. For the Union to succeed in this case, it would
have this Arbitrator adjudicate upon the propriety of what occurred surrounding the
"resignations" from a previous employer, which is exactly what cannot now be
determined under this Collective Agreement with a new Employer.
In short, the Grievors were previously employed by the Ministry of Health who operated
the Whitby Mental Health Centre. The Union's grievances allege that the forced
resignations should not alter the calculation of their Continuous Service Date under this
Collective Agreement. To accept jurisdiction over this claim, the Union would have to
establish that the current Employer had assumed the contractual obligations and
undertakings of the Ministry of Health. There is no legislative or contractual basis for
this conclusion. It therefore follows that I have no jurisdiction to deal with the Grievors'
claims.
Therefore, it must be conclude that I have no jurisdiction over the events that arose
during the currency of another contract with a different employer. Further, there has
been no allegation of a breach of the calculation of seniority under the current
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provisions with respect to the post- divestment service. Having reached these
conclusions, there it is not necessary to deal with the Employer's secondary objections.
Accordingly, these grievances must be dismissed.
DATED at TORONTO this 7th day of August, 2012.
Paula Knopf - Arbitrator