HomeMy WebLinkAbout2011-3022.McIlwain et al.12-11-01 DecisionCrown Employees
Grievance Settlement
Board
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Toronto, Ontario M5G 1Z8
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Commission de
règlement des griefs
des employés de la
Couronne
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
Téléc. : (416) 326-1396
GSB#2011-3022
UNION#2011-0163-0035
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(McIlwain et. al) Union
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The Crown in Right of Ontario
(Liquor Control Board of Ontario) Employer
BEFORE Reva Devins Vice-Chair
FOR THE UNION Val Patrick
Ontario Public Service Employees Union
Grievance Officer
FOR THE EMPLOYER Michael O’Reilly
Liquor Control Board of Ontario
Director, HR Services Western Region
Lori Thorpe
Liquor Control Board of Ontario
HR Advisor, HR Services Western Region
HEARING October 26, 2012.
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Decision
[1] The parties have agreed to an expedited mediation-arbitration process to effect the timely
disposition of grievances. The parties specifically agreed that this matter was properly
referred for expedited mediation-arbitration and, after a failed mediation effort, that the
Vice Chair should issue a written decision that is without prejudice or precedent.
[2] The Grievors are seeking recognition of their service as casual employees in the
computation of entitlement to vacation credits under Article 8. The Employer calculates
entitlement based on the date that an employee becomes a permanent employee, whereas
the Grievors submit that ‘years of service’ includes the period as a casual employee.
[3] Article 8.6 (a) provides that permanent full time employees will accumulate vacation
credits pro rata for each month of service at the rate of one and one quarter days per
month for up to and including 8 years of service, one and two thirds days per month after
8 years of service, two and one twelfth days per month after 16 years of service and two
and a half days per month after 26 years of service.
[4] The Grievors maintain that casual employees frequently work for the LCBO for many,
many years before they are hired as permanent employees. In accordance with Article
31.3 of the Collective Agreement, casual employees are excluded from the application of
Article 8, and receive monthly vacation pay calculated as a set percentage of their gross
pay. Nonetheless, it was argued that the LCBO recognises the service of casuals in many
other respects, for example sending them letters of appreciation for their years of service
as casual employees. In these circumstances, it was argued that “service” in Article 8
should mean all years that an employee has worked for the LCBO.
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[5] The Employer submitted that it has consistently calculated vacation credits by reference
to service commencing with the date that an employee becomes a permanent full time
employee. This is a province wide practice that has never been challenged and has been
in operation for decades.
[6] Having considered the submissions of the parties, I have determined that the Employer’s
application of Article 8 is not in violation of the Collective Agreement. Years of service
in the context of Article 8 is properly interpreted as commencing from the date that an
employee is hired as a permanent employee.
[7] I have considered the case submitted by the Grievors1, however, I am not persuaded that
it is applicable. In that case, the Board of Arbitration contrasted the service of full time
employees with that of part time employees. Both the full time and part time employees,
however, were part of the permanent complement. That is not true for casual employees
working for the LCBO. Casuals are treated very distinctly under the Collective
Agreement from permanent staff.
[8] I consider the fundamentally different status of permanent and casual staff to be critical to
the proper interpretation of Article 8. Article 31.3 specifically excludes casuals from the
application of Article 8. It would require much clearer language to treat the number of
years that a casual employee worked before becoming a permanent employee as
equivalent to those that are worked afterwards for the purposes of Article 8 and the
calculation of vacation credits.
1 St. Joseph’s Health Services of Sarnia v. London and District Service Workers’ Union, Loc.
220, [1997] O.L.L.A. No. 156.
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[9] The grievance is dismissed.
Dated at Toronto this 1st day of November 2012.
Reva Devins, Vice-Chair