HomeMy WebLinkAbout1987-0982.Farrugia.87-11-16IN.THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between:
Before:
For the Grievor:
t
For the Employer:
Hearing: September 21, 1987
ATU (Barry Farrugia)
Grievor
and
The Crown in Right of Ontario
(Toronto Area Transit Operating Authority)
Employer
J. H. Devlin
I. .I. Thomson
C. .J. Milley
Vice Chairman
Member
Member
P. Cavalluzzo
Counsel
Cavalluzzo, Hayes and Lennon
Barristers and Solicitors
W. J. Hanson
COUllSS?l
Osler, Hoskin &,Harcourt
Barristers and Solicitors
1
In this case, the Grievor, Barry Farrugia, claims
that his dismissal on May 15, 1987 was without just cause and, in
addition, that he was appraised by the Employer, GO Transit,
contrary to the governing principles and standards.
At the outset of the hearing, two preliminary matters
were raised. Firstly, it was the position of the Employer that
in May of 1987, the Grievor was a probationary employee and,
therefore, is precluded from challenging the termination of his
employment before the Board, It was the position of the Union,
on the other hand, that in May of 1987, the Grievor had completed
his probationary period but that, even if he had not, the Crown
~r;li,loyees-~oiiec~ive.~argaining'Act affords him the right to
grieve his dismissal and, in the event that the matter is not
resolved, to have his grievance referred to arbitration.
The circumstances giving rise to Mr. Farrugia's
grievance are not in dispute. The Grievor began his employment
with GO Transit on February 17, 1986, at which time he executed a
six month contract with a termination date of August 15, 1986.
The document executed by Mr. Farrugia is entitled "Notification
of Appointment to Unclassified Group 2" and specifies that by
virtue of the contract, Nr. Farrugia was bein~g appointed to the
"Temporary Staff" of the Employer. Throughout the hearing, Mr.
Farrugia's status at this time was described as that of a UC2 or
UC2 casual. Following his appointment in February of 1986, the
Grievor worked in the capacity of Stockhandler on the day shift
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for a total of forty hours per week. Mr. Farrugia worked
alongside other employees performing similar work for similar
hours under the supervision of the same member of management.
On August 16, 1986, the Grievor's contract was
renewed for a further six-month period with a termination dat.e of
February 20, 1987. Following the renewal, the Grievor continued
to perform stockhandling work as he had in the past.
In late 1986, the Grievor.was the successful
applicant for one of three vacancies posted for the position of
Stockhandler. On December 9, 1986, the Grievor was provided with
the following letter advising him of his change in status
effective December 8, 1986:
II ..a
9 December 1986
Mr. Barry Farrugia
274-7555 Goreway Dr.
Mississauga, Ontario L4T 3M9
Dear Barry:
This letter will confirms your recent conversation with Rafeek Assim in which he offered you the position of Stockhandler.
Effective 8 December 1986, your status with GO Transit will change from Unclassified Group 2 to ATU Classified. Your rate of pay will be $10.09 per hour.
This position has a 9 month probationary period. During
this time, we would expect you to pass the Equipment Operator’s written and road test required for this /
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position. We would request that you take this test after 3 months employment and again, at 6 months if you
do not pass the first time. Please note that successful
completion of this test is a condition of continuing
employment with GO Transit.
In order to complete you personnel file and benefits,
you will be required to fill out certain documentation
forms. Would you please report to Debi Fram on 12
,December 1986,. at 8:30 a.m., at 555 Wilson Avenue.
I would like to take this opportunity to congratulate you and wish you continued success with GO Transit.
Yours truly,
'Anne Parry'
Anne Parry Staffing Assistant
cc: I. Sass H. Wildman
ATU Personnel File"
Subsequent to December 8, 1986, the Grievor's duties remained
unchanged although, in February of 1987, he was transferred to
the night shift.
On May 15, 1987, the Grievor was called in for his
first appraisal and was advised at that time that.his employment
was being terminated. The Grievor was subsequently provided with
the fol lowing letter dated May 2 :I, 1987, under the signature of
:,
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Mr. Leach, the Nanaging Director:
VIA COURIER
. . .
21 May, 1987
Mr. Barry Farrugia 7555 Goreway Drive
Apartment #274 Mississauga, Ontario
L4T 3M9
Dear Nr. Farrugia:
This letter is to officially advise you that you are
released from employment effective 15th of May, 1987 for failure to meet the requirements of your position as a
Stockhandler within the first nine (9) months of your
probationary period.
The reasons for your release were explained to you at your 15th of May meeting with Messrs. Wildman.and Assim. At that t.ime, you were informed that you had failed.to meet job requirements in work attitude, dependability,
etc. In addition, you also failed to follow the prescribed procedures, particularly in Stores' security and inventory control which had been discussed with you
previously.
You will be given one (1) week's pay in lieu of notice.
Would you please arrange to ensure that all returnable
items, such as Photo I.D., etc., are returned in order
to release your final pay cheque.
Sincerely,
'A.F. Leach'
A.F. Leach
Ranaging Director
cc - M. Carter (A.T.D.)"
5
In addition to evidence of the circumstances giving
rise to Mr. Farrugia's grievance, evidence was also introduced
concerning the Employer's practice with respect to the employment
of UC2's or UC2 casuals. Geoffrey Lodge, the Manager of Safety &
Labour Relations, testified that, in the past, management had
authority to supplement its staff by hiri ng UC2's on contract for
a period of up to six months. Mr. Lodge testified that such
employees, who were hired for a definite term or task, were not
members of the bargaining unit nor subject to the deduction of
union dues. Simon Clarke, the Vice President of the Local, also
agreed that no dues were deducted from UC2's who'tiere not covered
by the terms of the collective agreement. Mr. Clarke pointed
out, however, that certain employees of T.T.C. who transferred to
GO Transit were not required to serve a~second probationary
period. Mr.,Clarke suggested that a similar situation ought to
apply to UC2's who worked on contract for a period equivalent to
the probationary period.
The subject of UC2's was ra
negotiations for the current collective
sed by the Union in
agreement, which covers
the period from December 27, ,1986 to January 6, 1989. During
negotiations which began in November of 1986,~ the Union took the
position that, as UC2's were performing bargaining unit work,
they ought to be covered by the collective agreement and subjec
to deduction for union dues. Mr. Lodge testified that, in
t
response, the Employer proposed that there be recognition of each
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employee's service as a UC2. The Union, however, disagreed as
UC2's did not pay dues while working on contract.
In early 1987, a seniority list was prepared by the
Employer which was provided to the Union. This list contains the
Grievor's~name and reflects a "GO Transit hire date" of February
17, 1986 and a bargaining unit entry date of December 8, 1986.
Mr. Lodge testified that the date of hire was specified as it was
agreed between the parties that service as a UC2 would be
recognized for benefit purposes. Mr. Lodge testified, however,
that the bargaining unit entry date reflects the date upon which
Mr. Far~rugia began his nine-month probationary period.
As a result of negotiations, the parties entered into
three Letters: of Intent which did not appear in the prior
collective agreement and which are to the following effect:
"Effective Signing Date
LETTER OF INTENT - 4
PROCEDURE FOR ESTABLISHING MASTER SENIORITY LIST
REFERENCE ARTICLE 7.0 SENIORITY
The following procedure is used to establish seniority and the list prepared January 1, 1987 is agreed to be the list which establishes the employee's - "original
hire date GO Seniority", - Section Seniority, - Classification Seniority. This list includes full time and part-time employees(UCl).For all future employees, their seniority shall be established as follows.
GO Seniority - date of entry into ba,rgaining unit.
Classification Seniority - date of entry into
classification. Section Seniority - date of entry into section, i.e.
.
7’
Passenger Services, Bus Equipment, Bus Operations, Plant Maintenance.
The GO Seniority date for TTC mechanics transferred October 1979 and the Canada Coach Employees transferred
February 1981 and such transfers being directly to GO Transit from the aforementioned employers is established
as the date hired into GO Transit, however their previous employment hire date with the aforementioned employer establishes their vacation entitlement and individual order on the seniority list where more than
one employee was hired into GO Transit on the same date; otherwise their GO Transit hire date is used for all
other purposes.
Bus Drivers transferred into GO Transit from TTC GCL or Travelways have been slotted in the seniority lists in
the same manner but using their original date of entry
into the driver classification at the aforementioned, however their original hire date from their previous employer has been recognised for the vacation entitlement; irrespective their GO Transit hire date
shall be used for all other purposes. In future, any
additional Bus drivers who.fall under Bill 125 shall have their senioritv and vacation entitlement treated in
a similar manner. -
On Behalf of GO Transit "On Behal f on A.T.U. Local 1587
G.W. Lodge, Manager M.D. Carter, President
Labour Relations & Safety A.T.U. Local 1587"
"Effect ive Signing Date
LETTER OF INTENT - 9
CONVERSION OF K-2'S
Effective signing date, the following positions will be
subject to the posting procedure and will be included in
the Bargaining Unit. The present incumbents will be allowed to bid for the positions. However, such
incumbents will not have any union seniority recognized. Should then present incumbents be successful in the job bid or any resulting job bid vacancy, they shall have a seniority date as of the date of entry to the bargaining
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unit and therefore, subject to all the conditions of the collective agreement. However, such continuous service that has been accumulated to date will be recognized for
benefit purposes.
J. Bernard Operating Garageman - Hamilton A. Sardella Operating Garageman - Hamilton D. Weldrick Operating Garageman - Steeprock D. Lowe Operating Garageman - Steeprock D. Grice Serviceman - Newmarket
All UC2 positions hired on a temporary basis which will include the following positions: 3 Operating Garagemen - Steeprock for winter work 1986/87
3 Station Attendants Positions occupied by - A. Cunningham
- C. Evanoff
- J. Linder 4 Utility Snow Storm Foremen for winter work 1986/87
(Status Quo) Shall be included in the bargaining unit, in accordance with the above procedure.
One Terminal Services Clerk Position - Yorkdale Terminal to be converted to a forty (40) hour week full time position.
The present janitors who work six (6) days per week wil continue to work a forty (40) hour work week o,r part time hours as the case may be, over six (6) days per
week (Status Quo) until the review is completed and approved or by December 1987.
J. Moir - Senior Courier - to Courier, his rate red circled seniority to be recognized as his original date of hire in GO Transit providing he elects the option of taking the Bargaining Unit Position prior to effective
date.
On Behalf of GO Transit 1587 On Behalf on A.T.U. Local
G.W. Lodge, Manager M.D. Carter, President Labour Relations & Safety A.T.U. Local 1587"
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"Effective 5 March 1987
LETTER OF' INTENT - 20
ENTRY INTO THE BARGAINING UNIT
It is agreed that under Article 7 - Seniority, that
those employees who enter the bargaining unit with a new
date of entry; i.e., have no seniority, or rights to seniority, shall be subject to the normal probationary
period of nine (9) ~months, irrespective of any
continuous service that may be recognised for any other reason or purpose.
Such entry date into the bargaining unit shall also be
used as the start date rate for the classification in which they are entering. This shall also apply to those
employees referred to in Letter of Intent #9 (Conversion of U.C.2's).
On Behalf of GO Transit On Behalf on A.T.U. Local is87
G.W. Lodge, Manager M.D. Carter, President
Labour Relations & Safety A.T.U. Local 1587"
Mr. Lodge testified that Letter of Intent #4 was signed by
himself and Mr. Carter, the President.of the Local, on January
12, 1987. Letter of Intent #9 was signed on February 2, 1987 and
although Mr. Lodge had no information as to when Letter of Intent
#20 was signed, Mr. Clarke believed that this took place
immediately following the execution of the collective agreement
on March 5, 1987.
!lr . Lodge pointed out that the seniority list
referred to in Letter of Intent #4 was, in fact, the seniority
list prepared by the .Employer and provided to the Union during
the course of negotiations. With respect to Letters of Intent #9
10
and 820, Br. Lodge testified that the parties agreed to a method
for bringing UC2's into the bargaining unit. As provided in
Letter #9, this involved the posting of UC2 positions for which
the incumbents were entitled to apply. In the event that the
incumbents were successful in any job bid or resulting job
vacancy, they were to have a seniority coinciding with their date
of entry into the bargaining unit. In the end result, Mr. Lodge
testified that this would only leave students, part-time and
casual'employees as defined in Sections 1 .-(l)(f)(v) and (vi) .of
the Crown Employees Collective Bargaining Act excluded from the
bargaining unit.
In addition to the Letters of Intent referred to
previously, the following provisions of the current collective
agreement are;relevant to the determination of the two
preliminary issues before the Board:
"ARTICLE 2 - RECOGNITION
2.1 The Employer recognises the Union as the exclusive bargaining agent for all employees of the
Employer employed in the Province of Ontario save and except supervisors and foreman and persons above the rank of supervisor and foreman, office and technical
staff and persons excluded by-The Crown Employees Collective Bargaining Act, R.S.O. 1980, c. 108, as
amended.
. . .
ARTICLE 4 - GRIEVANCE PROCEDURE
4.4(l) It is recognized that a period of probation is a period during which the Employer has the right to assess
an employee to determine whether such employee is, in the sole opinion of the Employer, acceptable for
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employment. It is therefore recognized and agreed that probationary employees may be rcleascd or dismissed at the absolute and sole discretion of the Employer during the probationary period and that such release or dismissal shall be deemed to be for just cause. Any probationary employee who is released or dismissed shall not be entitled to file a grievance.
ARTICLE 6 - MANAGEMENT'S RIGHTS
6.1 Except as otherwise abr~idged by specific
provisions in this agreement, the Union acknowledges that the Employer shall be entitled to exercise all the usual rights and functions of management, which rights
include, but are not limited to, the right to establish and maintain cost reduction methods and techniques, to
schedule and direct the work force, maintain order, discipline and efficiency, hire, retire, classify, reclassify, direct, promote, demote, discipline and
discharge employees (provided that a claim that an employee with seniority has been disciplined or discharged without just cause may be the subject,of a
grievance and dealt with as provided for in this
agreement) and to increase and decrease the work force, suspend or cease operations, set the hours of operation and assign same and the various duties to be performed,
make and apply reasonable rules and regulations to be
observed by employees, determine the number and location of facilities, the methods of operation, the schedule of operation, the kinds and location of machines, tools and equipment to be used; provided nothing herein shall restrict the rights of the parties pursuant to section 18 of The Crown Employees Collective Bargaining Act, March 1985.
ARTICLE 7 - SENIORITY
7.1 There shall be a probationary period of up to nine (9) months for all new employees and such employees
will have no seniority rights during this period. After completion of the probationary period, an employee's seniority shall date back to the date of his last hiring and shall be determined as set forth in Article 7.3
hereof.
7.3(l) Seniority shall be defined as length of continuous service with the Employer since the date of last hire by the Employer. Seniority will accumulate during periods or work, vacations, holidays', union
leave, leave under Article 5.6, 5.7, 5.8, 5.9, 5.10, jury and witness duty, bereavement leave, maternity
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leave up'to 17 weeks, periods of lay-off and other leaves of absence. Employees not in the bargaining unit as of the date of
execution of this agreement but who subsequently come into the bargaining unit shall, subject to Article 7.1, start their seniority from,the date of their entrance into the bargaining unit.
. . .
ARTICLE 37 - STUDENTS: PART-TIME EMPLOYEES AND CASUAL EMPLOYEES
37 ..l For purposes of clarity, it is understood none
of the provisions of this agreement apply to students or
part-time employees or any casual employees as defined in Section l(l)f(v) I... a student employed during the student's regular vacation period or on a co-operative
education program"; and Section l(l)f(iv) "... a person
not ordinarily required to work more than one-third of the normal period for persons performing similar work except where the person works on a regular and continuing basis"
Bargaining Act. of The Crown Employees' Collective
" . . .
With the exception of Article 37.1, which is
reproduced below, the remaining provisions of the collective
agreement set out are the same in all material respects as the
provisions of the prior collective agreement which covered the
period from April 1, 1985 to January 1, 1987:
"ARTICLE 37 - sTuDEms: PART-TIME EMPLOYEES AND CASUAL EMPLOYEES
37.1 For purposes of clarity, it is understood none
of the provisions of this agreement apply to students or part-time employees as defined in section l(l)(g)(v) of The Crown Employees Collective Bargaining Act or any casual employees."
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Also of relevance to the arbitrability of Mr.
Farrugia's grievance are the following provisions of the Crown
Employees Collective Bargaining Act:
"18.-(1)Every collective agreement shall be deemed to provide that it is the exclusive function of the employer to manage, which function, without limiting the
generality of the foregoing, includes the right to determine,
(a) employment, appointment, complement,
organization, assignment, discipline, dismissal, suspension, work methods and procedures, kinds
and locations of equipment and classification of positions; and
(b) merit system, training and development, appraisal and superannuation, the governing principles of which are subject to review by the
employer with the bargaining agent,
and such matters will not be the subject of collective
bargaining nor come within the jurisdiction of a board.
under
class
In addition to any other rights or grievance collective agreement, an employee claiming,
(a) that his position has been improperly
ed;
(b) that he has been appraised contrary to the governing principles and standards; or
(cl that he has been disciplined or dismissed
or suspended from his employment without just cause,
may process such matter in accordance with the grievance procedure provided in the collective agreement, and failing final determination under such procedure,,the
matter may be processed in accordance with the procedure for final determination applicable under ~section 19.
'R.S.O. 1980, c. 108, s. 18."
19.-(1)Every collective agreement shall be deemed to provide that in the event the parties are unable to
effect a settlement of any differences between them arising from the interpretation, application, administration or alleged contravention of the agreement, including any question as to whether a matter
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is arbitrable, such matter may be referred for arbitration to the Grievance Settlement Board and the Board a~fter giving f~ull opportunity to the parties to present their evidence and to make their submissions,
shall decide the matter and its decision is final and. binding upon the parties and the employees covered by the agreement."
It was the submission of Mr. Hanson that, at the time
of Mr. Farrugia's termination in May of 1986, he was a
probationary employee and precluded from processing to
arbitration a grievance,arising from his dismissal. In respect
of Mr. Farrugia's status, Mr. Hanson pointed out that as a UC2
casual, Mr. Farrugia paid no union dues and M.r. Hanson contended
that both the oral evidence and the documentation make it clear
that Mr. Farrugia was not considered by the parties to be a
member of the bargaining unit. When the Grievor successfully
applied for the position of Stockhandler in late 1986, he became
an employee subject to the provisions of the agreement who was
required to serve a nine-month probationary period. Mr. Hanson
submitted that when Article 7.1 is read in conjunction with
Article 7.3 of the 'collective agreement, it is clear that the
probationary period runs from the date of entry into the
bargaining unit. This, it was contended, is confirmed in the
case of UC2's by Letters of Intent #9 and $20. In particular,
Letter of Intent #9 provides that if a UC2 is successful in a job
bid or resulting job bid vacancy, he shall have a seniority date
"as of the date of entry to the bargaining unit".
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Alternatively, Mr. Hanson submitted that it is simply
too late for the Union to suggest that Mr. Farrugia completed his
probationary period while employed as a UC2. In this respect,
Mr. Hanson relied upon OPSEU (Nicholls) and the Crown in Riqht of
Ontario (Ministry of Health.), GSB File #429/82 in which the Board
found that time previously worked by the Grievor could have been
considered part of his probationary period but that it was not.
No timely objection, however, was raised in this regard and as a
result, the Board determined that it would not be appropriate "to
alter that state of affairs, of which the Grievor was aware".
On the basis that Mr. Farrugia was a probationary
employee in May of 1987, Mr. Hanson contended that he can not
challenge his dismissal before the Board. In this regard, Mr.
Hanson suggested that Section 19.-(l) of the Crown Employees
Collective Bargaining Act is similar to Section 44(l) of the
Ontario Labour Relations Act, which is to the following effect:
"44.-(l) Every collective agreement shall provide for the final and binding settlement by arbitration, without
stoppage of work, of all differences between the parties arising from the interpretation, application,
administration or alleged violation of the agreement,
including any question as to whether a matter is arbitrable."~
Mr. Hanson submitted that the jurisprudence which has developed
under the Labour Relations Act provides that if a substantive
right is afforded to an employee by the collective agreement,
then a dispute concerning the exercise of that right gives rise
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to a "difference" between the parties within the meaning of
Section 44 and, in these circumstances, the parties may not bar
access to arbitration. Where, however, no substantive right is
conferred, ~there is no difference between the parties and,
therefore, no question of the application of Section 44 of the
Act: Re Ontario Hydro and.Ontario Hydro Employees' Union, Local
1000 et al. (1983), 147 D.L.R.(3d)210 (Ont. C.A.); The
1 Cor oration of the Cit
Public Employees, Local 79, May 27, 1985 (Ont. Div. Ct.) and The -
Corporation of the City of Toronto and Metropolitan Toronto Civic
Employees' Union, Local No. 43 et al., June 12, 1986 (Ont. Div.
Ct.).
In this case, Mr. Hanson submitted that Article
4:4(l) of the collective agreement makes it clear that there is
no difference between the parties in respect of the termination
of an employee during his probationary period. As a result, like
Section 44.-(l) of the Ontario Labour Relations Act, Section
19.-(l) of the Crown Employees Collective Bargaining Act does not
come into play. While Mr. Hanson acknowledged that Section
18.-(Z) of the Act entitles an employee to file a grievance
claiming that he was dismissed without just cause, it was
contended that the Board is without jurisdiction to entertain
such a grieva'nce as, again, there is no difference between the
parties. In support of his submission, Mr. Hanson referred to a
decision of another panel of the Board in Amalgamated Transit
Union, Local 1587 (Francis) and the Crown in Right of Ontario
1 : I
(Toronto Area Transit Operating Authority), GSB File #1528/86.
In that case, the union agreed during a meeting with the with the
employer to withdraw the grievance filed by Mr. Francis against
his discharge. Hr. Francis, however, sought to have his
grievance processed to arbitration. The Board determined that he
could not do so given the settlement ,effected between the union
and.the employer. The grievance of Mr. Francis, therefore, was
dismissed as inarbitrable and Mr. Hanson requested that we reach
a similar cone 1 usion in respect of the grievance of Farrugia.
It
was the submission of Mr. Cavalluzzo, on behalf of
the Union, that from the time of hiring in-February of 1986,
there was nothing to distinguish the Grievor from other full-time
employees as he performed similar work for similar hours under
the same supervisor. Mr . Cavalluzzo contended that the Grievor
was not hired for a specific task or to work during a peak period
and given the regularity of hi's employment, he could not be
described as a casual employee: Bank of Montreal, Sherbrooke,
Quebec v. United Steelworkers of America (1987), 87 C.L.L.C.,
14,332 (C.L.R.B.). In these circumstances, Mr. Cavalluzzo
submitted that the Grievorwas covered by the recognition clause
of the collective agreement in effect in February of 1986 and
that in accordance with Article 7, he began to serve his
probationary period at that time. Upon completion of this period
in mid-November of 1986, the Grievor's seniority dated back to
the date of last hire which was February 17, 1986.
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Mr. Cavalluzzo submitted that the Letters of Intent
appended to the current collective agreement are not relevant as
they were executed after the Grievor had completed his
probationary period and could not retroactively affect his
status. The same, it was contended, is true of the letter of
December 9, 1986 and as the Grievor was, by that point, an
employee with seniority, the Union's failure to take any action
as a result of the letter was of no significance. Nr. Cavalluzzo
also pointed to the two contracts executed by Mr. Farrugia and
suggested that these are null and void as, after the hiring
stage, individual contracts of employment are invalid. As a
result, Mr. Cavalluzzo contended that in May of 1987, the Grievor
was an employee with seniority.
Alternatively and even if the Board were to conclude
that the Grievor was a probationary employee in May of 1987, Mr.,
Cavalluzzo submitted that Mr. Farrugia has the right to challenge
his dismissal by virtue of Section 18.-(2) of the Crown Employees
Collective Bargaining Act. This Section specifically recognizes
his right to grieve and further provides that failing resolution,
the grievance may be processed to the Board in accordance with
Section 19 of the Act.
Mr. Cavalluzzo contended that Re Ontario Hydro and
Ontario Hydro Employees Union, Local 1000 et al., supra relied
upon by Mr. Hanson is distinguishable given the statutory right
to grieve contained in Section 18(2) of the Crown Employees
~~_--
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Collective Bargaining Act. It was further submitted that the
parties cannot contract out of the statute and to the extent that
Article 4.4(l) of the collective agreement purports to accom
this result, it is ineffective. In this respect, Mr. Cavall
relied upon Joyce and Ministry of the Attorney General, GSB
plish
uzzo
File
#2,1/76 and Ontario Public Service Employees Union and Berry v.
Ontario (Ministry of Community and Social Services) (1986), 15
0.A.C.15 (Ont. Div. Ct.). In the result and on the basis of the
language of Section 18 of the Crown Employees Collective
Bargaining Act, Mr. Cavalluzzo requested that we dismiss the
Employer's objection to arbitrability.
The first issue for determination, then, concerns the
Grievor's status in Nay of 1 987. The collective agreement in
effect at the time that the Grievor was hired in February 1986
covered the period from April 1, 1985 to January 1, 1987. As
pointed out by E1r. Cavalluzzo, the.recognition clause provides
for an all employee bargaining unit subject to certain exclusions
for supervisory personnel, office and techni,cal staff and persons
excluded by the Crown Employees Collective Bargaining Act. It
was not suggested that Mr. Farrugia would be excluded from the
bargaining unit on any of these grounds. Article 37 of the
collective agreement, however, also provided that none of the
provisions of the agreement applied to students, part-time
employees, as defined in Section l.-(l)(g)(v) of the Crown
Employees Collective Bargaining Act or to any casual employees.
20
While working on contract for the period from
February 17 to early December of 1986, the Grievor performed
stockhandling work for 40 hours per week in the same manner and
under the same supervision as other employees. The Employer
evidently had an on-going and,continuing need for the duties
performed by the Grievor and his employment during this period
must be described a.s regular. On any objective basis, the
Grievor's status could not be characterised as that of a casual
employee. There was no element of chance nor was it suggested
that the Grievor was required for purposes of a particular task
or work opportunity which was not foreseen. Further and although
the Grievor was described as a member of the "Unclassified
Group", the collective agreement does not draw a distinction
between the classified and the unclassified service. This is a
distinction recognized by the Public Service Act although, as an .
employee of GO Transit, the Grievor was not a public servant
within the meaning of that Act: Pelissero and the Crown in Right
of Ontario (GO Transit), September 22, 1987 (P.S.G.B.).
Notwithstanding the language of the collective
agreement in this case, the Employer retained the services of
UC2's or UC~ casuals on contract to supplement its workforce from
time to time. These individuals, including Mr. Farrugia, did not
pay union dues and were apparently not considered by either party
to be covered by the collective agreement. There is no evidence
that the Union took any steps to challenge the Employer's action
or the status of UC2's. Instead, the parties dealt with these
21
individuals during the last round of negotiations and ultimately
executed the Letters of Intent set out previously. Although
these Letters of Intent cannot retroactively alter the Grievor's
status, they reinforce the understanding of all parties that
prior to the current collective agreement, UC2.'s were not members
of the bargaining unit.
Given the conduct and understanding of the parties
and in the absence of any definition of the term "casual"
employee in Article 37 of the prior collective agreement, it must
be~said that the parties gave to this term a special meaning
which encompassed UC2's. As a result and in accordance with
Section 37.-(l), the provisions of the collective agreement did
not apply to Mr. Farrugia until he successfully obtained the
position of Stockhandler, effective December 8, 1986. It was at
this time that the Grievor entered the bargaining unit and in
accordance with Article 7 of the collective agreement was
required to serve a nine-month probationary period.
On the basis, then, that the Grievor was a
probationary employee in May of 1987, the issue is whether he can
challenge the termination of his employment before the Board.
ArticIe 4.4(l) of the current collective agreement provides that
probationary employees may be released or dismissed at the
absolute and sole discretion of the Employer during the
probationary period and that such release or dismissal shall be
deemed to be for just cause. The Article further provides that
22
any probationary employee who is released or dismissed shall not
be entitled to file a grievance., At the same time, Section
18.-(2) of the ) provides
that in addition to any ot,her rights of grievance under a
collective agreement, an employee. claiming that he has been
dismissed without just cause, may process such matter in
accordance with the grievance procedure set out in the CO
agreement.
llective
In this case, the Grievor was advised in writing by
the letter of May 21, 1987 that he had been released from
employment effective May 15, 1987 for failure to meet the
requirements of the position of Stockhandler. The Employer,
however, did not seek to distinguish between a release and a
dismissal. Instead, Mr. Hanson acknowledged that Mr. Farrugia
was entitled to grieve but submitted that failing resolution of
his grievance, the matter could not be processed to the.Board in
accordance with Section 19.-(l) of the Act. In our view,
however, this is an argument which cannot prevail.
Although we do not quarrel with Mr. Hanson's synopsis
of the prevailing jurisprudence under Section 44.-(l) of the
Ontario Labour Relations Act, it has been recognized that the
Crown Employee Collective Bargaining Act departs in certain
respects from the traditional model of labour relations
legislation in the private sector: Ontario Public Service
Employees Union and Berry v. Ontario Ministry of Community and
5,
ti 23
Social Services, supra. Section 18.-(2) affords the individual
employee certain rights of grievance, which are not disputed in
this case and further provides that failing final determination
during the grievance procedure, the matter may be processed under
Section 19.-(l) ~of the Act. In our view, it would take very
clear language to find that there existed a right to grieve but
that any outstanding grievance could not be processed to
arbitration. No such language exists in the Crown Employees
Collective Bargaining Act and, in fact, Section 18.-(2) of the
Act suggests the opposite conclusion as does the jurisprudence
developed by the-Board. To the extent that Section 4.4(l) of the
collective agreement conflicts with Section 18.-(2~) and Section
19 of the Crown Employees Collective Bargaining Act, it is
ineffective.
In our view, the decision of the Board in Amalgamated
Transit Union, Local 1587 (Francis) and the Crown in Rightof
Ontario (Toronto Area Transit Operation Authority), supra relied
upon by the Employer is distinguishable. In that case, the
grievance had been withdrawn by the Union and it was found that
the Board did not have jurisdiction to hear the matter. Section
18.-(2) of the tEmployeesCollective
however, specifically contemplates the parties possessing
authority to settle a grievance and it is only "failing final
determination" during the grievance procedure that the matter may
be processed to arbitration before the Board. The Board
determined that the "parties" to which reference is made in
24
Section 18.-(2) were the Employer and the Union and, therefore,
Mr. Francis could not pursue his grievance independently.
In the result and for the reasons set out, we find
that Mr. Farrugia was a probationary employee on May 15, 1987.
As his right to grieve his dismissal was acknowledged, we furthe
find that he is entitled to have his grievance processed for
final determination before the Board in accordance with Section
19(l) of the Crown Employees Collective Bargaining Act. The
Board, therefore, .shall reconvene on a date to be fixed by the
Registrar to hear this aspect of Mr. Farrugia's grievance, as
r
well as his claim that he was appraised contrary to the govern-ing
principles and standards.
DATED AT TORONTO, this 16th day oft November, 1987.
Vice-Chairman
e&lx+
G.J. Milley, Mem'er