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HomeMy WebLinkAbout1987-1905.Lobraico.89-05-25 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE CONTAR70 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 OUNDAS STREET WEST, TORONTO. ONTARIO. M5G 1Z8-SUITE 2100 TELEPHONE/TELEPHONE 180,RUE DUNDAS OUEST, TORONTO, (ONTARIO)MSG 1Z8-BUREAU 2700 (416)598-0688 1905/87 , 1905/87 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU ( Lobraico) Grievor - and - The Crown in Right of Ontario (Ministry of Natural Resources) Employer Before: J. Forbes-Roberts - vice-Chairperson T. Traves - Member E. Orsini - Member APPEARING FOR A. Ryder THE GRIEVOR: Counsel Gowling & Henderson Barristers & Solicitors APPEARING FOR M. Fleishman THE EMPLOYER: Law Officer Crown Law Office, Civil Ministry of the Attorney General HEARING: March 2 , 1988 April 28 , 1988 July 19 & 20 , 1988 February 21 & 22 , 1989 DECISION The grievor, Mr. Larry Lobraico, was employed on a contract basis as a Park Warden with the Ministry of Natural Resources ("the Employer or the Ministry"). He was a probationary member` of the Seasonal Unclassified Staff. His employment 'ceased' in September of 1987. The proper characterization of that cessation of employment is the main issue before this Board. It was the Employer's position that Mr. Lobraico was released pursuant to section 22 (5) of the Public Service Act, and thus the matter was inarbitable. It did,however,agree that it was necessary for this Board to hear evidence in order to determine if indeed a bona fide release had occuped. The Union argued that the grievor was dismissed rather than released and that the Employer lacked just cause for its action. The facts are as follows. The grievor commenced seasonal employment with the Ministry in 1984. He occupied various positions and then on July 4th, 1966 he assumed the duties of Park Warden on Peche Island which is part of Wheatley Provincial Park. Peche Island is in the St. Clair River between Windsor and Detroit and is (not surprisingly) accessible only by boat. The Park is open daily to the public from approximately the May 24th weekend to Labour Day. Generally it is a Warden's job to maintain the Park's buildings and grounds. In 1986 the grievor had a number of unpaid volunteers to assist him in this aspect of his duties. Specifically, since liquor is forbidden in provincial parks it is the Warden's duty to (1) inform uneducated holiday makers of this fact, (2) confiscate liquor when necessary, (3) issue tickets for liquor offences pursuant to the Provincial Offences Act and (4) when necessary to expel rowdy or inebriated persons from the Park. (Often they are one and the same persons.) In 1987 the grievor returned to Peche Island, again as a seasonal employee on a contract basis. At this point we hesitate to attach a name or classification to his 1987 position as this is one of the main bones of contention between the parties. A significant change occuped in the Peche Island programme commencing with the 1987 season. Suffice it to say that certainly the grievor was once again assigned the Park Warden's duties. The question z becomes was the title Park Warden sufficient to encompass the full range of his duties. In 1967 the Islander programme commenced. It was a project conceived by Mr. John Dignan and implemented in conjunction with the City of Windsor and the Ministry. The project's purpose was two fold. First it was designed to provide inner city Windsor teenagers with something useful to do in the summer vacation, and secondly it was designed to provide them with a sense of accomplishment over a "job well done". The ultimate goal was to curtail the school dropout rate. The Islander programme was designed as follows. Sixteen (lb) Windsor teenagers were chosen to take part. Eight (8) were from noddle class, achievement oriented families. These teens were termed the "low risk group", meaning at low risk of dropping out of school. The other eight (8) were from less advantaged families and were termed the 'at risk group". The teens were separated into working teams of two (2) ,one each from the low risk and the at risk group. The entire group was to live on the Island from Monday to Friday for two (2) months and to learn life skills by performing maintenance duties for the Ministry. Ultimate direction vis a vis the tasks to be performed and the manner in which they were to be done lay in the grievor's hands. The moment by moment direction was to be provided by two persons termed "experienced students` who were attached to the programme itself. In other words,the theory was that each morning Mr. Lobraico would issue marching orders as well as any needed instruction on the proper and safe use of tools, and then the experienced students would see that the Islanders executed these instructions. The Islanders were the experienced students' responsibility for approximately sixteen (lb) hours per day, five (5) days per week.. The assistance provided by the Islanders was meant to lighten the grievor's work load vis a vis his maintenance duties thus leaving him more free time for enforcement duties. Prior to the commencement of the 1987 season the grievor was consulted about the programme by Mr. Dignan, and the latter mapped it out for him in rough terms. The grievor's 1987 contract ran from May 4 to September 15, and the Islanders were scheduled to take up residence on the Island in early July. On May 4th the grievor met with his immediate supervisor Mr. Chuck Fawdry, the Assistant Superintendent for Wheatley Provincial Park. Mr. I Fawdry went over the grievor's job specification with him. By way of update Fawdry added to the section entitled Duties and related tasks "supervise volunteer staff at Peche Island Provincial Park". There is no direct reference to the Islander Programme. Indeed it is unclear whether the latter even refers to the Programme. The parties were agreed that every year in the off season Peche Island (unfortunately like all Provincial Parks) sustains quite a bit a damage at the hands of vandals. It was the grievor's position that in 1987 the damage to the Island's buildings was particularly bad. The Employer maintained that 1987 was no worse than any other year. In any event suffice it to say that all the buildings had sustained considerable damage in the way of broken glass, smashed screens etc., all of which had to be repaired in time for the Islanders to take up residence. The grievor commenced work on the Island on May 14, 1987. (According to the grievor the Park Superintendent Mr. Jack Sulston had promised him the title of Island Manager in recognition of the added duties attendant upon the Islander programme. Mr. Sulstan denied this.) Various duties had been targeted for completion by May 2 4th 1987. However, according to the grievor he did not receive these instructions until May 24th. Piecing together the testimony of various witnesses it seems clear that the grievor was responsible for: -readying the Park for the public -clear garbage off the beaches -open the overgrown trails around the Island -cut the grass which was approximately hip high (until approximately June 4th he and his volunteers had only scythes with which to work) -paint and put out the picnic tables -repair and put out the garbage pails -put out the portable washrooms -readying the Park for the Islanders -repair the damage to approximately six (6) buildings sufficient to make them fit for residence -build additional showers -purchase mattresses, a stove and other equipment necessary for habitation -affect repairs and general maintenance on three (3) boats -perform enforcement duties -perform water sampling duties and deliver the samples to the main- land What seems equally clear is that by mid June the relationship between Mr. Lobraico and his superiors was going downhill. Messrs. Fawdy and Sulstan felt that various maintenance duties were not being performed quickly enough, and that enforcement duties were being given inadequate attention. Their dissatisfaction was expressed in a memo dated June 24th (Appendix A) from Mr. Fawdry to the grievor. on July 6th the Islanders actually gook up residence. Far from improving the situation their arrival heralded an even more pronounced deterioration in the relationship between the grievor and Messrs. Fawdry and Sulstan. There was virtually no aspect of the grievor's work with which Fawdry and Sulstan were satisfied_ Finally a meeting was held on the Island on July 24th to discuss the matter (see Appendix BY one week later a performance appraisal was conducted of the grievor's work (see Appendix C), and he was removed from the Islander programme. For the moment leaving aside enforcement duties, examination of Appendices B and C seem to depict an employee who did not perform up to expectations at least partially if not largley because he did not or could not instruct, supervise or discipline his staff properly. Appendix B states: ...It was brought to Larry's attention that his performance to date is far below the required expectation. Proper instruction is not being given by Larry to his staff, and documented discipline of the staff by Larry is not taking place,.. Appendix C states in part: 1. Supervision of staff under Larry requires much improvement. 2. instruction to staff by Larry is very poor, staff painted a build- ing which was not to be painted. Presumably the `staff- referred to are the "experienced students' attached to the Islander programme, and the Islanders themselves. Did the Em- ployer have realistic expectations of the grievor vis a vis this group? s The evidence made it clear that both Mr. Sulstan and Mr. Fawdry expected the Islander programme to lighten the grievor's maintenance work load. Though no formal inquiry was conducted to establish how much of the grievor's time would be consumed instructing and supervising the "staff", it was generally held by Messrs. Fawdry and Sulstan that at maximum it would require one and one-half 0 1/2) to two (2) hours per day. In other words it was the Employer's expectation that first thing each morning the grievor would issue a list of chores, offer instruction on the use of basic hand tools, then leave the Islanders to the supervision of the experienced students. He himself would then simply have to conduct intermittent supervisory spot checks while devoting the majority of his day to enforcement duties. According to the grievor's evidence the Employer's expectatiors and the reality of the situation were two (2) totally different matters. In the first place, according to the grievor Mr. Sulstan had emphasized that the Islanders' safety was ultimately the former's responsibility. Obviously Peche Island is surrounded by water and the Islanders were using tools, two (2) circumstances which hold the Potential for accidents. The safety issue was thus never far from the grievor's mind and could not be satisfied-by mere spot checks. Second, as it was with the Employer supervision was very much an issue in the grievor's mind. The grievor was of the impression that the Islanders reported to the experienced students, who reported to him. He reported to Mr. Fawdry who in turn reported to Mr. Sulstan. This theoretical chain of command was apparently somewhat shaken up by the Islander programme's founding father, Mr. Dignan. There is perhaps no better illustration offered of this institutional miscommunication than in the case of the shower installation. Initially the island was not equipped to house some twenty (ao) p"le. Consequently additional showers required installation. Mr. Dignan told Mr. Sulstan to have two (2) showers put in. Mr. Sulstan told Mr. Fawdry to see to it. Mr. Fawdry told Mr. Lobraico to put them in and to locate them in the building with the existing showers. Mr. Lobraico was well on his way to accomplishing this task when Mr. Dignan made a tour of the facilities and expressed his extreme displeasure at their location. Mr. Lobraico was then reprimanded by Messrs. Fawdry and Sulstan for doing what he was told, and ultimately Mr. Sulstan took over the shower installation. i ne tsoara finds that this pattern continued throughout the latter part of June and all of July. Instructions were issued then changed or countermanded. According to the grievor Mr. Dignan often did this right in front of what was theoretically the grievor's own staff. Indeed according to Mr. Dignan's own testimony by at least mid-July Mike Jones (Islander staff member) had "de facto control'. There is no evidence that Messrs. Fawdry or Sulstan gave it to him, nor is there any evidence that Mr. Dignan had the official authority to give it to him. What is clear is that if certain tasks were not done, regardless of who had the authority to assign them the grievor was awarded the blame. Third there was the enabling "work force' itself. While the invention of the Islander programme was unquestionably admirable it must be borne in mind that what the grievor had was sixteen (16) teenagers, a group not generically known for it's unflagging devotion to industry, especially when it involves picking up garbage or placing portable outhouses. It was the grievor's unchallenged evidence that quite apart from issuing assignments it could take up to an hour in the morning just to get the kids to locate and put on their safety boots and hard hats. The Employer suggested that this was the responsibility of the programme staff but again it must be remembered that Mr. Sulstan had made safety the grievor's responsibility. Ensuring that the kids continued to wear their safety equipment, performed their tasks and were not careless with tools required constant vigilance on the grievor's part. According to the grievor's testimony in his experience two (2) students, no matter how experienced, cannot adequately supervise let alone motivate sixteen 0 6) teenagers. Finally, according to Mr. Dignan the Islander staff were responsible for the programme sixteen (I b) hours per dap seven (7) days per week again making the grievor's time commitment appear more than manageable. Yet neither Mr. Fawdry nor Mr. Sulstan knew that the grievor spent a not inconsiderable amount of time ferrying the islanders and the programme cook back and forth to the mainland. Apparently Monday through Thursday evenings naive eight (g) of the islanders had to be taken over to the mainland and back as part of the 'Discovery' portion of the programme. All sixteen (16) had to be taken over on Friday evening and picked up on Monday morning. The grievor was not paid for overtime. Rather he was meant to fit all of his duties into forty (40) hours per week. Any overtime performed was to be remunerated in compensating time off. Thus even one half (I/2) hour i per day spent in transporting people amount to two and one-half (2 112 hours per week that he could not devote to other duties. As earlier indicated, by the end of July the Employer felt that the grievor either would not or could not perform his maintenance and enforcement duties and retain any involvement with the Islander programme. He was thus removed from the programme and told to devote himself to pay more attention to his enforcement function, another area in which the Employer was dissatisfied. Messrs. Fawdry and Sulstan testified that throughout the summer of 1987 they found evidence of drinking on the Island. In the course of their inspections they both found empty liquor bottles and observed persons actually consuming alcoholic beverages. In August of 1967 ( following his disassociation from the Islander programme) the grievor laid ten (10) liquor related charges. According to the Employer this represented an inadequate enforcement effort relative to the abuses occuring on the island. Interestingly the grievor's August 1987 ticket tally exceeded his 1986 total for the same month. get in 1986 the Employer had apparently been pleased with his work. In addition white in previous gears the Employer had deemed it necessary to stage long weekend 'blitzes" to clear up the drinking problem on the island, in 1987 this did not occur. According to the grievor, in 1987 the Detroit harbour police, the R.C.M.P. and the Windor harbour police had all increased their own patrols thus making it more difficult for launches to reach the island carrying liquor in the first place. In addition his personal style of enforcement leaned more towards patrolling and warning people off rather than automatically charging them. It is interesting to note that according to Mr. Sulstan's own evidence on at least one occassion he observed persons drinking on the island and chose not to charge them either. The Employer also drew attention to a few occassion on which the grievor made cash purchases in excess of his petty cash allowance, and complained that the grievor submitted photocopied receipts as opposed to the originals. There was no allegation that the expenditures had been improper or that the receipts have been tampered with, but rather only that Ministry policy had not been followed. Finally the Employer took exception with the grievor's use of a Ministry boat. According to Mr. Sulstan the grievor used a Ministry launch to transport a personal friend and infant child to and from the island on one occassion in July. This was clearly contrary to Ministry policy. According to the grievor the adult in question was a potential volunteer whom he was attempting to recruit. It was the grievor's understanding that in such circumstances the transportation was considered legitimate Ministry business and he was thus entitled to use the boat, just as he was when transporting the Islander programme's cook. The circumstances surrounding the grievor's release/discharge are somewhat murky but for the purposes of this Board it is suffient to note that by letter dated September 11, 198? the grievor was informed that his services were termimnated effective on that date, and that he would be paid one week's wages in lieu of notice (Appendix Q. On the basis of these facts was the grievor released pursuant to section 22 (5) of the Public Service Actor was he discharged? If he was discharged was it with or without cause? Section 22 (5) states- 2 2 (5) A deputy minister may release from employment any public servant during the first year of his employment for failure to meet the requirements of his position. . (emphasis added) In considering the term failure as used in section 22 (5) the Employer urged upon us the parameters set in re: Keane (G.SB. 596/81). At page 13 Arbitrator Roberts states: ...The word "failure" as used in section 22 (5) of the Public Service Act encompasses both voluntary and involuntary deficiencies such as at- titude and capacity. If the legislature had desired to exclude acts of voluntary malfeasance from forming the basis of a 'release" it surely would have used a word like 'inability" or "incapacity' rather than the word "failure". It seems to us that failure to meet in an acceptable way the job requirements for a particular position can form the basis for a release whether or not the grievor might have been able to correct his or her attitude or behaviour. We accept the Employer's submission that malfeasance as well as misfeasance may form the basis for a release. The Board is still left to determine the standard of review applicable to a deputy ministerial exercise of power under section 22 (5) of the Public Service Act. This matter r*as dealt with in re: Schiralian (G.SB. Og 14/86). At page 12 Arbitrator Roberts states: ...our attention was directed to a sufficient number of tie legion of release vs. dismissal cases which have passed through this Board to remind us of the principles to be applied in this area. Basically, the termination—must be reviewed to determine 'whether the Employer reasonably and in good faith exercised the authority in section 22(5) of the Public Service Act to release..., and did not seek merely to cloak a disciplinary discharge behind the release procedure."... ..For a reasonable and good faith exercise of authority to have occured there must have been a rational relationship between the observations made by management and the conclusion that was reached. It is not appropriate for management to leap to a conclusion that an employee has failed to meet the requirements of his or her position. We agree with Arbitrator Roberts. Nor do we find the principles set out in re: Keane (supra) and re: Sct&alian (supra) to be at odds. just as with misfeasance, malfeasance may result in failure to meet the requirements of a position thus producing a bona fide release. However,it is also possible for malfeasance to be the result of unreasonable or bad faith expectations by the Employer for a given position. In other words the failure of an individual who possesses the prerequisite skills and has been provided with adequate resources to perform a set task may constitute malfeasance which could properly form the basis for a release under section 22 ( 5 ) . However the failure of an individual who possesses the prerequi- site skills and has = been provided with adequate resources to perform a set task may tggbiaically constitute malfeasance, but may not necessarily properly form the basis for a release. One must combine the concepts set cut in Keane (supra ) and 5chira ian ( supra ) as follows . . .It seems to us that failure to meet in an acceptable way the job requirements for a particular position can form the basis for a release whether or not the grievor might have been able to correct his or her attitude. or behaviour . However one must still consider the requirements of reasonable- ness and good faith. . . .For a reasonable and good faith exercise of authority to have occured there must have been a rational relationship between the observations made by management and the conclu.- sion that was reached. It is not appropriate for management to leap to a conclusion that an employee has failed to meet the requirements of this or her position. (emphasis added ) In re: ,SbeeppArd (G.S .B. 2492/85) Arbitrator Slone deals with the "rational relationship" factor . At page 15 he states : C. - Rational Rglationsh.1p Between.-thg Fa is and the Release : This factor is nearly synonymous with "reasonableness" . if the Employer 's assessment that a certain set of facts justifies release is "irrational" on any half-intelligent view of the matter, then the release becomes a discharge and can be reviewed . The "rational relationship" test should not be placed too high. It is easy to brand as " ir- rational" any thought process or decision with which one does not agree . The Deputy Minister must be free to make decisions, without being found to have acted irrationally i merely because a Board of Arbitration might have come to a different conclusion. In the instant case the first step in assessing the rationality of the relationship between the facts and the release must be to establish what exactly the grievor 's position was, and what the Employer ' s requirements were for that position. It was the Employer 's evidence that Mr . Lobraico was a Park Warden. Given that the 1986 Job Specification was used again in 1987 with very little revision, obviously the Employer considered the 1986 and 1987 position requirements to be substantially the same . The only addition in 1987 was a brief hand written notation indicating that the grievor 's duties included supervis- ing " . . .volunteer staff at Peche Island Prov. Park . " From the brevity of the notation and particularly on the strength of Messrs . Sulstan and Fawdry's evidence it is clear that the latter was considered a very small portion of the Park. Warden's duties . Mr . Lobraico 's evidence made it clear that he viewed the matter differently. We found the grievor to be a very credible, forthright witness . We did not find him prone to either exaggeration or self-aggrandizement . on the strength of Mr . Lobraico ' s testimony we find that he did not in fact have A. position. Without realizing it, at least until the end of July the Employer expected the grievor to ". . .meet the requirements . . " of two positions - Park Warden &nA Vocational Camp Counsellor . We further find on the basis of Messrs . Sulstans and Fawdry's evidence, as well as on a reading of the termination letter from Ms . McNab that the grievor 's employment was severed predominantly if not exclusively for perceived performance shortcomings which occured prior to August, in short while he was still involved in the Islander programme . In light of our finding that the Employer was unaware of how many Jobs it was actually asking the grievor to hold down, there can be no rational relationship between the facts and the release . The releases therefore ) becomes a discharge and is subJect to review. That the Employer was unaware of the full extent of the duties it expected the grievor to pack into a forty ( 40 ) hour week also casts a long shadow on the justness of the discharge . The entire 1987 seasons appears to have been shrouded in mis- understanding and miscommunication . We will begin with May and June . It is logical that preparing the island buildings for habitation represented a i significant work load increase for the gtievor over the previous I , season's . Yet this appears to have escaped Messrs . Sulstan and Fawdry. They assigned work to the grievor using completion target dates that were only days away. In one case the target date was already passed when the work was assigned . And yet they appear to have been unable to understand why work was not done on time . With respect to the construction of the showers, the grievor was criticized for following Mr . Fawdry' s orders because Mr . Dignan was unhappy. it would appear that Mr . Dignan was unhappy with much of what the grievor did . It would also appear that much of Messrs . Sulstan's and Fawdry' s criticism of the grievor was based on information from Mr. Dignan rather than on first hand observation. In July, following the islanders' arrival, matters deterio- rated even further . However, as above indicated, we find first, that the grievor was not getting nearly the assistance expected from the Islanders and second, the task of extracting any help from them proved far more time consuming than- the Employer had assumed in it 's "guesstimate" . We find that the grievor made a reasonable effort to fulfill the obligations of two jobs but that there were simply not enough hours in the day to live up to the Employer 's unintentionally unrealistic expectations . Finally with respect to his enforcement duties the evidence indicates that the grievor laid more charges in July and August of 1987 than in the same time frame in 1986 . Indeed there is no documented criticism of the grievor 's enforcement record in August of 1987 . We find the only matters for which the grievor could legitimately have been disciplined to be ( 1) over spending his petty cash allowance on two occasions and ( 2) submitting photo- copied rather than original receipts . The first transgression may be indicative of poor judgement, and the second appears to have been -the product of procedural ignorance without even a hint of any intention to deceive the Employer . In any event, neither instance of wrongdoing would support a discharge . The grievance is hereby allowed . We order that the grievor 's employment record be altered to indicate that he completed his 1987 seasonal contract. That brings us to the issue of the grievor ' s status and remedy? Does he remain a probationary employee, or as a result of this award is he deemed to have completed his probationary period and thus to have acquired recall rights as provided by article 3 . 20 . 1 of the collective agreement? Article 3 . 18 deals with the probationary period for seasonal employees . It states : I 3 . 18 The probationary period for a seasonal employee shall be two ( 2 ) full periods of seasonal employment of at least eiQht _(8) weeks each, worked in consecutive years in the same position. (emphasis added ) Union counsel argued that because the grievor was also the- Peche Island Park Warden in 1986, fulfillment of his 1987 seasonal contract would represent completion of his probationary period. Thus he was entitled to be recalled in 1988 and should he made whole for any damages suffered ( less mitigation) , and is entitled to recall in 1989 . Employer counsel argued that for two ( 2 ) reasons the grievor is still probationary, and therefore does not possess recall rights . First, in 1986 he did not commence work until July 4th, and thus he did not complete a "season" . Second, picking up on the Union 's arguement that the job was not the same in 1987 as in 1986, Employer counsel suggests therefore, that the grievor did not work consecutive years in the same position. In support of the latter proposition he cited re : Saunders (G. S .B. 0275/86 ) . Clearly even to qualify as a full period of seasonal employment within the meaning of article 3 . 18 an employee must work a minimum of eight ( 8 ) weeks . In 1986 the grievor worked nine (9 ) weeks less a day. But is that sufficient to constitute a season. Re : Bean (G.S .B. 612/86 ) deals with what constitutes a full period of seasonal employment. In that case the grievor was put on a twenty ( 20 ) week long seasonal contract. He voluntarily resigned after only eleven ( 11) weeks . Arbitrator Verity found that the grievor had not completed a full period of seasonal employment in that particular year. At page 11 the Arbitrator states : 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 eleven weeks of a twenty week— assignment. . .has worked a full period of seasonal em- ployment as contemplated in Article 3 . 18 . In our opin- ion, it matters not that seasons vary in - length depend- ing on the type of seasonal employment . The season must include eight consecutive weeks of employment which appears to be the threshold of consistency between Ar- ticles 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 . (emphasis added ) Arbitrator Verity appears to be saying that the Employer may set the length of the "season" . In that case it was twenty weeks .. In other words one cannot read into Article 3 . 18 the concept of a full period of seasonal employment gr eight weeks, whichever comes first. We agree with this proposition. Similarly in the instant case in 1986 the grievor contracted with the Employer to work for nine weeks less one day, and he fulfilled that contract . In other words the Employer set the season as nine weeks less a day, and the grievor completed it . Unlike Arbitrator Verity we are not faced with a situation where the grievor quit prior to the expiration of the deemed season. We therefore find that the grievor had completed two ( 2) full periods of seasonal employment of at least eight ( 8 ) weeks each. As indicated above Employer counsel argued that on the strength of the Union 's argument and Saunders (supra ) the grievor did not work two W full seasons in the same_ position. We disagree with that proposition. Indeed the Union urged that the grievor 's job was different in 1987 from 1986, but different in the sense of being broader in scope and more onerous . In Saunders the grievor 's job was diminished from one year to the next in what the Board found to be a very significant respect. In that case supervisory duties which were found to permeate every aspect of the grievor ' s prior job were removed from her, thus leading to the finding that the positions were different and the Employer had therefore , not had sufficient opportunity to evaluate her in "the same" position. In the present case the grievor retained all his functions from the 1986 season, but was given considerable additional duties in 1987 . We find that the grievor occupied the same position for two ( 2 ) consecutive years. In the present case the grievor retained all duties from the 1986 season, but was given a whole new bundle of additional duties . We find that the grievor occupied the same position for two ( 2 ) Consecutive years, however) in the second year he simultaneously occupied an additional position. The grievor had, thereforelcompleted his probationary period at the end of the 1987 season and was entitled to recall in subsequent years as provided for in the collective agreement . We order that the grievor be made whole for any employment related losses suffered as a result of his discharge, less any mitigation on his part . The Board will remain seized in the event that the parties have difficulty implementing this award . w !J Dated at Toronto this 25th day May 1989 - y J. Forbes—Roberts, Vice—Chairperson TO T. Traves, Member E. Orsini, Member ,� y- TO FROM tA DEPT. OAT r C �+ J f SussfcT r L4�� 0 !' a• To Se. 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