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HomeMy WebLinkAbout1985-1249.Beacock.87-11-301249185 IN THE Mz4TTER OF AN ARBITRATION ~.Under THE CROWN,EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Bryan Beacock) and The Crown in Right of Ontario (Ministry of Transportation & Communications) Before: For the Griever: For the Employer: K. Cribbie Staff Relations Advisor , Human Resources Branch Ministry of Transportation & Communications Hearings: J. Forbes-Roberts C. Nabi H. Roberts Vice Chairman Member Member S. Goudge Counsel Gowling and Henderson Barristers and Solicitors acne I, 1987 June 10, 1907 Grievor Employer - DECTSION . A grievance was filed in the instant matter on November 12, 1985 and a hearing was held on June 9, 1987. The facts which precipitated the grievance are as follows. The grievor, Mr. Bryan Beacock, has been a regular seasonal employee with the Ministry of Transportation and Communication (the "Employer") since the 1975-1976 season. Save and except for the 1985-1986 winter, every year the grievor has been employed as a Snow Plough Helper from approximately mid- November to the following Easter weekend. In the 1985-1986 season the grievor was not offered work. He does not dispute that his seniority was insufficient to entitle him to one of the Snow Plough Helper's jobs available that year. However, two other seasonal jobs were performed by employees with less seniority than the grievor. It is the Union's contention that under the terms of the collective agreement the griever's seniority entitled him to recall to any available seasonal-positions, those being Day Checker and Night Patrolman. He had in the past intermittently performed aspects of the Day Checker job ("when someone was sick"), and had never performed the Night Patrolman function. He had never formally occupied either position. Unquestionably the grievor had completed his probationary period as defined in Article 3.18 of the collective agreement. The relevant provisions of the collective agreement are the following: . A -l- -. I . -2- 3.18 PROBATIONARY PERIOD The probationary period for a seasonal employee shall be two (2) full periods of seasonal employment of at least eight (8) consecutive weeks each, worked in consecutive years in the same position in the same ministry. SENIORITY 3.19.1 A seasonal employee's seniority within a ministry will accumulate upon completion of his probationary period and shall include: (a) all hours worked as a seasonal employee at the straight-time rate; (b) periods of authorized paid leave in accordance with Section 3.31, Attendance Credits and Sick leave. A seasonal employee will lose his seniority when: (a) he voluntarily terminates his imployment, (b) he is dismissed (unless such dismissal is reversed through the grievance procedure), (c) he is absent without leave in excess of ,ten (10) consecutive working days, I (d (e he is unavailable for or declines an offer for re-employment as provided in Section 3.20 (Job Security), or ) he ceases to be in the employ of the ministry for a period of more than twelve (12) months. JOB SECURITY 3.20;1 Seasonsal employees who have completed their probationary period shall be offered employment in their former positions in the following season on the basis of seniority. 3.20.2 Where the Employer reduces the number of seasonal employees prior to the expiry date of employment specified in the contracts of employment, seasonal employees in the same position shall be laid off in reverse order of seniority. r-- -3- Union counsel urged that the purpose of the seniority principle is job security. He further urged that a policy of sound labour relations ought to inform the interpretation issue before this Board, and that the alleged unfair treatment of the grievor was not sound labour relations. We turn to the collective agreement. Article 3.18 defines the probationary period. Article 3.19.1 allows for seasonal employees to accumulate seniority. Article 3.20.1 defines the use to which this accumulated seniority may be put, vis a vis recall, and 3.20.2 deals with lay-off. &ion counsel argued that because Articles 3.18 and 3.20.2 'speak in the singular, ("same position") and Article 3.20.1 speaks in the plural ("their former positions") for purposes of probation and lay off one is dealing with a single, discreet and actually occupied job classification. For purposes of recall however one is dealing with all available seasonal positions. Company counsel argued that to give the prbationary period any meaning, seniority must attach to a particular job - the one in which the employee served probation. We find neither position to be correct. $, - :- -A- .' Clearly to complete the probationary period an employee must work a specified time at the same job. However, after that there is nothing to prevent the employee seeking or accepting employment in a different capacity. For example, an individual could work as a Snow Plough Helper for two (2) seasons, thereby satisfying probation. He or she'could then work two (2) seasons as a Day Checker, and an additional two (2) as a Night Patrolman. That employee would have three ‘(3) formeg positions in which to exercise seniority the next year. In other words, to exercise seniority in a classification, one must have actually formerly,occupied that classification. I e:. : : '. This proposition is further reinforced by the fact that Article 3.20.1 speaks of "seasonal employees" (plural) returning to "the-ir former positions". The words "their" and "former" imply a proprietary interest which vests through previous performance of the function. To support the Union's proposed interpretation the Article would have to spe~ak of seasonal employees returning to the former positions. - The grievance is hereby dismissed. Dated at Toronto this 'J. Forbes-Roberts - Vice Chairma &a%-%&&'