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Home My WebLink About1988-1271.Stephen.90-08-08: ONTARIO EMPL O~S DE LA COURONNE CROWN EMPLOYEES DE L 'ONTARIO GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, TORONTO, ONTARIO· M,SG 1Z8- SUITE2100 TELEPHONE/T~'LI~PHONE 180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) MSG 1Z8'-BUREAU 2'100 (4t6) 598-0688 127[/88 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOilED BETWEEN OPSEU (Stephen) Grievor - and - The Crown in Right of Ontario (Ministry of Transportation.) Employer - and - T. Wilson ViCe-Chairperson D. Freedman Member D. Daugharty Member FOR T~E I. Roland GRI~VOR Counsel Gowling, Strathy & Henderson Barristers & SolicitOrs FOR THE K. Cribbie EMPLOYER Staff Relations Advisor Human Resources Branch Ministry of Transportation HEARING: June 2, 1989 DECISION The grievor is a Highway Equipment Operator II. He was a seasonal employee.with Patrol 7, Huntsville. His seasonal contract expired April 17, .1987 and his next one ran from November 26, 1987 until April 15, 1988. On October 31., 1988 G.E. Benn was hired on a Temporary Employment Agreement for Patrol 8, Elmsdale. Both positions are within District 11. Subsequently, the Patrol 8 position was posted and Benn was successful on the competition. The grievor asserts that he was denied his recall rights with respect to the temporary contract position'. The Ministry does not dispute that the grievor had acquired rights as'a seasona~ employee under Section 3.19 of the Collective Agreement. However, it asserts that the contract position in Patrol 8 was not his former position within Section 3.20.1. The Ministry also maintains that the positionin question to which the grievor claims recall rights was not a seasonal position. Ken Gregory is the Head of District Administration for the Huntsville DistriCt' of the Ministry of Transportation. He testified that the'grievor was not recalled to his former position in Patrol 7 in t988 because the Ministry had switched from two man to one man 'plow operations, i.e. the wing man position was abolished. In his view, no seasonal employees were hired for 2 either patrol ? or 8 in the 1988-1989 season. However, one'of the full-time classified staff, Jim Smith, was successful on a position posting for another classified position and as a result of Smith's move, Benn was hired on contract to fill in. 'The Smith position was not posted at that time because of a hir'ing freeze put in place in the summer of 1988. At that time, Ken Gregory did not know how long' the~ freeze woUld last. He was howeger allowed to hire contract staff but just for the winter season. 'Then in late November, a memorandum was received from the Deputy Minister. It lifted the hiring freeze. As a resul~t the Smith position was posted in the last week of December. Benn was successful in that competition and became a full-time classified employee as a Patrol' operator AB. Gregory testified that th~ work Benn did on the temporary contract was very close to the work the grievor did when he was a seasonal employee. The relevant prOvisions of the Collective Agreement~are: 3.18 The probationary period for a seasonal employee shall be two (2) full periods of seasonal employment of at least eight.(8) consecutive weekseach, worked in consecutive years in the same position in the same ministry. 3.20 Seasonal employees who have completed their probationary period shall be offered employment in their fOrmer positions in the following season on the basis of seniority. The Union Counsel referred the Board to a decision written by Vice-Chair Slone, iFurniss and Ministry of Natural Resources (G.S.B. 602/86 decided 17 November 1987). The case was concerned with interpreting the requirement of working "at least eight consecutive weeks each, worked in consecutive years in the same position in the same Ministry" (Section 3.18). In that particular case, the grievor'had worked 'as a Park warden in different parks each .in a different region of the province in each of three years.- The Ministry argued that the grievor worked in a different position in each of the three years. An argument which Mr. slone characterized as meaning "a position refers to a specific location within a specific organization branch, where"duties are performed that may be similar to duties performed in other positions". The Union on the other hand in that case suggested that the Board look to the purpose of creating' a scheme of limited 3ob security for seasonal employees and give ~a broader interpretation to the words. After examining the various meanings and approaches to interpretation of "position", Mr. Slone concluded at pages 10-11: "We therefore conclude that in the case of this~grievor, he held the same position for three consecutive years in the same ministry and has accordingly completed his probationary period. We4find that in his particular base the position held by the Grievor was that of Park Warden. We do not suggest that in every case, the "poSition`` is equivalent'to a particular-job title. A title is nothing more than a title, although it provides some evidence that the substance of'a particular 3ob is similar to the substance of another job bearing the same title. In many cases there will be little doubt as to what is a position; in other cases, it will be a factUal question as to whether or not the substance of the job and the nature of the duties are sufficiently similar to be considered the same position.". The Union argues that geographical location does not affect Section 3.20.1. Furthermore, it is in fact a seasonal position according to the union. In fact the union ~claims, the subject contract was just an effort to get around the grievor's seniority rights. The Ministry on the other hand argues that the temporary contract was not a seasonal position. There was no evidence that it would recur. To this the Union responds that.the direction was that the temporary contract was JuSt for the winter work. In this regard it is important to note under Regulation 881, Section 6-(1): 6(1) The unclassified service consists of employees who are employed under individual contracts in which the terms'of employment are set out and is divided into: (c) Group 3 consisting of employees appointed., on a seasonal basis for a period of at least eight consecutive weeks but less than twelve consecutive months to an annually recurring position where the contract provides that the employee is to work either 36 1/4 hours per week or 40 hours per week. This provision is further reflected in Section 3.17 of the Collective Agreement. DEFINITION 3.17 A seasonal employee is an employee appointed for a period of at least eight (8) consecutive weeks to an annually recurring full-t/me position in the unclassified service in a ministry. For purposes of this definition, full-time means a minimum of thirty-six and one quarter (36 1/4) or forty (40) hours,per week, as applicable. In the submission of the Ministry, the evidence does not show that the position was converted into a recurring seasonal position. There would need to be some reasonable foreseeable pOssibility that the same bundle of duties would be available from year to year. The temporary employment agreement signed by Benn stated that the work %.~s "Temporary Help for Peak' Workload or Replacement" pending recruitment'~ It was for the period October 24, 1988 to March 14, 1989 i.e. the winter snow clearing period. I am satisfied'on this evidence that this was not a seasonal position within the meaning of the Regulation 881 or Section 3.17 of the Collective Agreement. It was not .intended to be 'an "annually recurring full-time position". It was in fact a stop gap situation: Smith left suddenly and the funds for the .permanent position thus vacated were temporarily frozen. There is no suggestion in this evidence that any decision was taken to convert that position to an annually recurring seasonal position. Indeed as soon as the freeze ended, the permanent position was posted. The mere fact that the Ministry decided on a temporary ad hoc basis to hire someone for the winter months pending the lifting of the freeze or whatever other decision might ultimately have been taken does not in my opinion convert it into a Section 3.17 seasonal ? employee position. That being so, I need not resolve the other 6 issue, namely whether it was 'the same position within Section 3.20.1. Accordingly, the grievance is dismissed. Dated at Toronto this 8th day of August , 1990 · homas H. Wflsoh Vice-Chairperson I. Fr~d~-aff - Member ? /