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HomeMy WebLinkAbout1986-0612.Bean.88-03-15416/598- 0688 612/86 180 WEST. M5G -SUITE 2100 IN THE MATTER OF AN ARBITRATION under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT before THE GRIEVANCE SETTLEMENT BOARD OPSEU (Michael Bean) Between: Grievor and The Crown in Right of Ontario (Ministry of Natural Resources) Employer Before: R.L. Verity, Q.C. Vice Chairman J. McManus Member D.B. Middleton Member For the Grievor: C. Dassios Counse 1 Gowling & Henderson Barristers & Solicitors R.J. Atkinson Counse 1 Hicks, Morley, Hamilton, Stewart & Storie Barristers & Solicitors For the Employer: December 7, 1987 8, 1987 December 18, 1987 Hearing: -2- DECISION In a grievance dated May 13, 1986, Michael Bean alleged a Ministry violation of the job security provision of Article 3.20.1 of the Collective Agreement in its failure to offer him seasonal employment in 1986. Most facts are not in dispute. From 1980 to 1985 inclusive, the grievor was employed as a Unit Crew Member with the Fire Control Section in the Ministry's Chapleau District. The term of employment for Fire Crew Members varies annually depending on the availability of funding. Traditionally, the seasonal employment of a Crew Member is approximately four months commencing the first week of May and terminating at the end of August. Apparently, there are 6 5 member Fire Crews in the Chapleau District. The mandate of Fire Crews, at least in 1984 and 1985, was provincial in the sense that Crews could be dispatched throughout the Province to perform fire fighter duties. A Crew Member is required to perform various fire suppression duties, to maintain fire equipment, and to assist in other program areas, as assigned. Until 1986, the grievor worked with the Ministry as a seasonal employee, trapped during the winter months, and participated in the annual moose hunt during the fall season. He is a young man -3- handicapped to a degree by limited reading and writing skills. In 1984, the grievor voluntarily terminated his employment with the Ministry on July 12, after having worked for approximately 11 weeks. The events surrounding the termination are' the only factual matters in dispute. It is common ground, at least in the Chapleau District, that 1984 was a wet year during the spring and summer. As a result that there was little opportunity for overtime work. The grievor testified that he left early because of the wet season, his desire to prepare his trap lines for the winter and the possibility of seeking permanent employment with The B. Eddy Company. Senior Fire Technician, Douglas Grainger, testified that the grievor told him that the reason for early termination was boredom with the slow season and the fact that he had secured employment with Eddy. The prospect of future employment with the Ministry is another area in dispute. Mr. Grainger testified that there was no such discussion when the grievor quit on July 12, 1984. In any event, the Employer accepted the grievor's termination of employment, without apparent an imo s i ty . In 1985, the grievor applied for and was granted employment with the Ministry as a Fire Crew Member in the Fire Chapleau District . However, Mr. Grainger shared certain concerns with the grievor prior to the commencement of employment making it clear that it was "the last chance to prove himself", -4 - Mr. Grainger had three concerns the fact that the grievor had quit early in 1984, performance concerns involving lateness and sick leave, and the fact of two previous convictions under the Ontario Game and Fish Act one in 1979 for trapping during the closed season, and one in 1980 for trapping outside the parameters of his licence. The grievor did complete the 1985 season without difficulty. In the opinion of Mr. Grainger, the grievor was characterized as "an average employee". However, he did receive a written overall program evaluation with an "above average" rating from his Union Crew leader. Unfortunately, the grievor was one of three hunters involved in a moose poaching incident on the Chapleau Game Preserve in the fall of 1985. On October 6, 1985, a large bull moose was shot with the grievor's gun within the confines of the Game Preserve. The moose was then sawed in half with a chain saw. Subsequently, the grievor assisted the other two hunters in removing half of the moose and transporting it to Chapleau.. The grievor's testimony was that he was . not present when the moose was shot, but was in Chapleau obtaining supplies for the base camp. However, he readily acknowledged his involvement in removing part of the moose from the Game Preserve. The grievor was subsequently convicted in Provincial Court for hunting on a Crown Game Preserve, contrary to S. 26 (1 of the Ontario Game and Fish Act and also convicted of allowing animal flesh suitable for food I -5- to spoil. Under the first charge he was fined $1,300.00 and $200.00 under the second charge. In addition, he was prohibited from hunting for a three year period. In 1986, the grievor once again applied for seasonal employment with the Chapleau Fire Crew. Apparently, the grievor's two most recent convictions attracted some unfavourable reaction within the community and among certain of the Ministry personnel. District Department Managers conferred with regard to the grievor' S application for employment. The decision was made not to offer him employment 1986 . On April 4, 1986, the grievor met with District Fire Operations Manager Ted Jones. By all accounts he acknowledged his wrongdoing, but wanted a fresh start. Mr. Jones discussed the seriousness of the two convictions and the negative perception in the community of the Ministry employing a known violator. Mr. Jones also expressed his concern that the grievor had quit in 1984. According to Mr. Jones, the grievor, albeit somewhat reluctantly, agreed that he not be employed during the 1986 season, but wanted a guarantee of employment for 1987. No such guarantee was given. Subsequently, Ron Yurick, a District Fish and Wildlife Technician, spoke to Mr. Jones on the grievor's behalf. Mr. Yurick satisfied himself that the decision not to rehire the grievor was based on failure to complete the 1984 contract and that the moose Q, 5 I b k O 4J U I a W 4J C fd U. -4 w -4 r: tn -4 m (d V) 9 k Q, -4 cn C 8 3c Q, kk mu 4 O C 5V) 4Jo tn -4 cm -4 -4 O a 4J c rd 3 Q, rl Q, k 3k H H H W a r- r- e m 4J d Q, a -4 U -7 3.20.1 he is dismissed (unless such dismissal is reversed through the grievance procedure) , he is absent without leave in excess of ten (10) consecutive working days, 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. SECURITY Seasonal employees who have completed their provationary period shall be offered employment in their former positions in the following season on the basis of seniority. The Employer argued that the grievor had no entitlement to recall rights under Article 3.20.1 because he had not completed the probationary period. Mr. Atkinson contended that a seasonal employee must complete two full seasons of employment under Article 3.18 in order to acquire job security under The Employer maintained that the grievor had lost seniority rights by the voluntary termination of employment in 1984. Counsel contended that if the Board found the provisions of Article 3.18 ambiguous, the Swan interest award dated May 23, 1985 resolved the issue in the Employer's favour. In the alternative, Mr. Atkinson argued that the Employer was justified in not rehiring the grievor in 1986 for disciplinary reasons made known to the grievor. -8 - The Union argued that compliance with Article 3.18 required a seasonal employee to complete eight consecutive weeks of employment during each of two consecutive years, Mr, Dassios contended that since the grievor worked approximately 11 weeks in 1984, the issue of whether or not the grievor voluntarily terminated his employment was irrelevant, Simply stated, the Union contended that the grievor had worked the requisite number of weeks in 1984 and a full season during 1985 and accordingly, had completed his probationary period. entitling him to the security rights contained in Article 3.20.1 , In support, Mr. Dassios relied upon the Decision of Vice-Chairman Draper in OPSEU (S. Creighton) and Ministry of Transportation and Communications 120/85. Mr, Dassios further contended that the matter had never been treated as a disciplinary matter and that the Employer could not succeed on that ground , The central issue for determination is whether or not the grievor has completed his probationary period as defined in Article 3.18 in order to benefit from the job security provisions contained in Article 3,20,1, . The current job security provisions for seasonal employees came into effect during the 1984-85 Collective Agreement, Arbitrator Swan in his interest award dated May 23, 1985 resolved the dispute on the length of the probationary period for seasonal employees, At p. 15 Chairman Swan made the following comments: -9 . . .the Employer proposes a probationary period for seasonal employees based on 2080 or 1885 regularly scheduled straight-time hours, depending upon the work week applicable to the particular employee. The Union points out that a probationary period of this length might require some employees to be on probation, and thus with very little protection from discharge, for years . This is particularly true of the employees whom we have just included into this part of the collective agreement by our reduction in the qualifying period. We think it is appropriate to put a cap on this probationary period, to avoid the kind of problem identified by the Union. In our view, any employee who completes two full consecutive work seasons in the same position in the same Ministry will have provided the Employer with ample opportunity to assess the employee's qualifications for regular status, and we therefore award that clause 3 . 17 be amended to reflect this maximum period of service as a probationary employee . . " In these particular circumstances, the Parties agreed that for seniority purposes, no consideration would be given to service prior to January 1, 1984. Clearly, the issue before this Board is a matter of contract interpretation as to the proper meaning of Article- 3.18 of the Collective Agreement. In particular, --what is the proper interpretation of the phrase "two (2) full periods of seasonal employment of at least eight (8) consecutive weeks each"? The Union maintains that what is required is eight consecutive weeks employment for two consecutive years based upon the rationale of Vice-Chairman Draper in the Creighton Decision. Having considered the arguments carefully, this Board is unable to accept the Union's interpretation. In our opinion, there is 10 - I no ambiguity which would justify reliance upon extrinsic evidence. The Creighton Decision was the first occasion that a Panel of the Grievance Settlement Board was called upon to interpret the new provisions for seasonal employees. That Decision is a relatively short Decision which is clearly distinguishable on the facts. In the Creighton case, the periods of employment span the years 1983, 1984 and 1985. The facts of that case did not involve a termination of employment and the decision made no attempt to deal with the words "full" or "at least" as contained in Article 3.18. In our opinion, the phrases "two full periods" (of seasonal employment) and "of at least" (eight consecutive weeks each) must have been intended to have some meaning. If the Union's interpretation is correct, both phrases are redundant and would be rendered meaningless. As Brown and Beatty state in their-text, Canadian Labour Arbitration, 2nd Ed. (1984), para. 4:2100 at pp. 195 and 196: "AS another general guide to interpretation, it is accepted that in construing a collective agreement, it should be presumed that of the words used were intended to have some meaning, and that they were not intended to conflict. However, if the only permissible construction leads to that result, the resolution of the resulting conflict may be made by applying the following presumptions or principles of interpretation: special or specific provisions will prevail over general provisions; where a definition conflicts with an ope rat ive prov is ion, the operative prov is ion prevails.. . . " - 11 - I The definition of a seasonal employee is set out in Article 3.17 to mean a period of at least eight consecutive weeks to an annually recurring full-time position. However, in Article 3.18 the definition of probationary period, we think, requires two full periods of seasonal employment worked in consecutive years in the same . position in the same Ministry. In our opinion, the focus of Article 3.18 is on the season. It cannot be said that an employee such as the grievor who worked only 11 weeks of a 20 week assignment in 1984 has worked a full period of seasonal employment as contemplated in Article 3.18. In our opinion, it matters not that seasons vary in length depending on the type of seasonal employment. The season must include eight consecutive weeks of employment which appears to be the threshold level for consistency between Articles 3.17 and 3.18. To reiterate, the focus of Article 3.18 is on the season and not the number of qualifying weeks of employment. In these circumstances, the grievor has failed to complete his probationary period as defined in Article 3.18 and accordingly acquired no presumptive rights to job security as contained in Article 3.20.1. Therefore, it is unnecessary to consider the alleged disciplinary connotations of the Employer's refusal to offer the grievor employment in 1986. 12 Despite the result, the Board was impressed with the grievor's testimony which we were satisfied was given in a forthright and straight-forward manner Admittedly, the grievor's participation in the moose poaching incident in the fall of 1985 is a serious misdemeanour. including the loss of continued employment as a seasonal employee. Obviously, he is remorseful and in all probability is unlikely to repeat the same or any similar offence. apply for seasonal employment in the future, there is no reason why his application should not be given due consideration. this grievance is dismissed. However, he has paid a heavy price for that misconduct, Should the grievor chose to In the result, 1988. DATED at TORONTO Ontario, this 15thday of March, A.D., R. L. VERITY, Q.C. - VICE-CHAIRMAN t J. MEMBER D .B. MIDDLETON,