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HomeMy WebLinkAbout1989-1207.Parent.90-03-07 ONTARIO EMPf,.OY~'$ DE LA COURONNE CROWN EMPLOYEES OE L 'ONTARIO 180 DUNDAS STREET WEST, TORONTO, ONTARIO. MSO I~ - ~UITE 21~ TELEPHONE/Tg~PHoNE 18~ RUE DUNDAS OUES~ TO~NTO, (ONTARIO) MSG I~ - BUR~U 21~ (416) 5~-~8 1207/89 IN THE ~TTEB 'OF AN ARBITRATION Under ~ THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN: OPS~U (Parent) Grievor - and '- The'Crown in Right of Ontario (Ministry of Health) Employer BEFORE: P. Knopf Vice-Chairperson. I. Thomson Member D. Montrose ,Member FOR THE M..Kuntz GRIEVOR: Grievance Officer Ontario Public Service ~mployees Onion .FOR THE J. Crawford EMPLOYE~: Counsel Legal Services Branch Ministry.of Health HEARING: February 8, 1990 . , Thi~ grievance involves a clai~ .th~ t~e 'Gr~evor seniorit~ has been impro~e~l'y calculated'. 'A~th~.ugh a p~eltminary objection as to the timeliness was initi~'lly raised., this was'.prudenCl~.'aS~d~n~d by the EmPlOyer and the 'cafe proceeded toga hearing on ~ics-.~rits. ~' The Grievor works~as an ~bulance Dispatch,~r at the WindsOr Central' Ambulan~'~ .communications Centre. emplgym~nt in ~he Civil Service beg~n in July of 198S. Worked as a d~spacche~,, bu~ · varied, bur"he.worked consistently 'in the ~ob until ~e won a competition.and became a fdI1 'time dI~ssified employee in May of 1988. For purposes of--.'sen~ority,., the Dm01oyer has designa.~ed May 16. 1988 as the oQerative date. The grievance h~S been~' ladnched because the grievor and the~Ufl'lon are aware thac seve~af-.other members of this u~,it have had'sen'lot try .date~ des'iq'ne.ted which take account their p~evious service as Go-Temps. The Grievor feels tha~ he 'too should ha. v9 credi~ for his years of Work as. s~ch. "The Union' concedes that uncle.r .'the strict terms of the collective agre~en't, the' Griev0r has been given the correct seniority date'. It' is ~also conceded that nothing in the collective agreement obliga'tes ~he Employer to c~edit the Grievor s work as a Go-Temp for seniority purposes. However', the Union asserts that the..p~actice in the Windsor, Centre such-that th{ Employer. is.estopped from not giving the Grievor credit here. Thus we heard evidence of .{he practice of determining senior~ity dates in the..Windsor Centre. . Althpugh .this case turns on the concept of estoppel and the Union: is not relying, uoon th~ collective agreement, it is tmpo~tan~ to note the provisions in the collgctive ag~eemen~ which deal with seniority' in o~der t6 understand the cont:e~c of the evidence wh£ch we heard. ArcicIe 3.5' prov ides ARTICLE 25 - SENIORITY [LENGTH OF CONTINUOUS SERVICE ) 25.1 An employee's length of continuous service will accumulate upon completion of a probationary period of not more than one year and shall commence: (a) from the date of appointment to the Classified Service for those employees with no prior service in the Ontario Public Service; or (b) from the date on which an employee commences a period of unbroken, full-time service in she public service, immediately prior' to appointment to the Classified Service; or (c) for a regular part-time civil servant, from January 1, 1984 or' from the date on which he commenced a period of unbroken, part-time service in the public service, immediately prior to appointment to a regular part-time position in the civil service, whichever is later~ "Unbroken service" is that which is not interrupted by separation from the public service; "full-time is continuous employment as set out in the hours of work schedules for the appropriate classifications; and "part-time" is continuous employment in accordance with the hours of work specified in Article 61.1. The evidence of the Grie"vor an'd the Un ion was that there were several instances of people whose service dates for seniority purposes pre-date the tim~ they entered the classified service. This has created the Perception that they have been treated differently than the Qrievor. Four people were specified. Two people, R and L were cited as having worked as Go-Temps, then entered the classified service, and then having had their seniority pre-date their entry into. the classified service 'by' 7 to 15 months , res,oectively. The Employer's recordS'confirm this,'.b~t an explana~i0.a was off'ered by the ~mployer. We were told that the Employer applies Article~2~'(I)(b) by looking'at the "unbrok~ service" as a Go.Tem"p imm'e-diately p-r~ibr- to the appointment to the ciassified staff 'and'crediting '-the~ period of u'nbroken service that amounts to essentially ful,l-time service, in bo"th cases, the service was viftual-ly consistent With 40 hours per .week except for holidays or il['ffesses which were allowed. There were .also a few exce,~tions of the o~d week of less than:40 hours, .but ,this was ignored in the employees.' favour. Thus, they were credited for the unbroken period Of Service 'tha~ esse'6'tia[ly .ma[ch',&d a full.-time cpm~m{~ment prior to becoming classified. Another,~e~ample ~aised was ~hat of Wi -She was a part time Go-Temp an.~-then hired as a' part ti~e ~lassiffed'employee. Her service as a Go-Tem~ was c.~edited. The Employee explains _.this as 'Pein9 consistent with The' last exampl.~ cited was Wn. She was hired as a full time. contra6t, employ~-e ih' the Spring of' 1988: She then succeede~ in ti{e same ~o~Pe~ition as th~ Grie{~or and was a. ppo!nted ~o the clas~sified service On 'the same date.as he, being May 16. 1988'. [{owever. her'seniority date is listed as March 21, 1988. The EmploYer explains this<as. fal*ling within th~ application of' Article 25.1(b). '*' *~'~ The Union's e~idence points ou~ that in* 1987 the G¢ievor worked long 'hours and often more. than 40 hours per week. HoWever, in 1988, he haJ f~w 40-hour weeks. Indeed, in the mor~ch's leading up to'his.appointment to the classified staff he worked short weeks, sometimes'of eight, to twelve hou[s zn ~uration.' He certainly cannot De said to have had anything close to full.-time hours in any part of 1'~88. The evidence ~evea[s that the hours assigned to 'the Go--Temps are entirely within .the discretion of the Employer. Two contract employees were hired in 1988 and this may well have resulted in a reduction of the requirement' to call upon the Grievor and other Go-Temps. Such a situation may result in unfairness to someone like the Grievor on a daily basis and can have significant repercussions on his ability to put himself within Article 25.1(b) and show "unbroken, full-time service" within the meaning of the definition within the Article. The Argument On behalf of the Union it was argued that the evidence establishes that the Employer has credited many employees with seniority dates preceding the date of entry into the-classified service even though the period for which the employee got credit would not be strictly within the definitlon of unbroken service as contained in Article 25.1. It was stressed that the Go-Temps worke.~ variable hours and their assignment of hours is entirely at the whim of the F. mployer. Thus, through no fault of t6eir own, their period of service may be "Droken" by the Employer not calling them in just prior to their entry into the classified staff. Thus, they find themselves in a position of losing out on the benefit of Article 25.1(D) and not gaining any credit for what may be a long and dedicated commitment of time to the PuDlic Service as a Go-Temp. It was argued tha,t the Grievor had reason to believe that the Employer would credit him wsth his prior service as it had done for the others and that the Employer is now estoppeJ from denying the Grievor that credit. We were cited the case of CN/CP Telecommunications (1981), 4 L,A.C. (3d) 205 (Beatty) and Ca_n_a..d__ia_n__N.a__t_io_n_a_l- Railwa_~[ and Beat_ty (1981), 128 D.L.R. (3d) 236 (Ont, H,C.). Further, we were cited two cases wherein the Grievance Settlement Board has dealt with the situation o~ people in the same position as the Grievor and where there has bean comment made of ~t. he gaps in the collect'ire agreement' co. serve such situations.'B_a_ll and' Hi~istr_~ of Transportation'& C_omm___unications, GSB File [go. 1657/87 (Roberts) and K__on_yia and ' M_i._~ni_s_tr_~ of Natural Resources,' GSB Fire No. 494/83 (Roberts). The Board was asked co declare thai: t:be Griev0r's seniori.ty dace.should be calculated on the basis of the* service he worked as a Go-Temp and co credit him with that service. Ne .were also asked to direct ~he parc~es'c° d~scuss the implications of an employee coming on. to service-after ~orkin9 _as a Go-Temp. Counsel for the Employer st'~essed that the collective agreement simply does not covet' the situation of a ~art-time Go-Tamp coming on to the full-time classified serPice. Given that the Grievor was not relying upon the collective* agreement and was simply arguing estoppel, it'was said ~hac the onus was .on the Grievor.to.'show conduct on the par. t of the ~mployer and detrimental rel~ianc*e by the Grievor or the UniOn, It was argued that the ~urden had not been dischar, ged. bec.ause the Union's evidence could not establish what practice existed and'the Employer's evidence showed that there had'. indeed been 'adherence t6 the c°llect[ve .agreement, It was' conceded that there may be discretion exercised in the application of Article 25.1(b), but it was said th'at that still showed tha~ the Employer was acting within the spirit and intention of the section. In any event, it was said that there was no room for that discretion to be applied in favour Of-the'Grievor because of his small number of'h6urs "in 1988 prior to his appointalent. Further, it was pointed out. that even if the Grievor's arguments were accepted, it would not change his place on the seniority list. ./ The Decision It is e~sy for. this Board~to see why ~this grievance was filed. The Grievor wonders why he has not been credited for seniority purposes with any of the long bouts he has served as a Go-Temp. Re sees situations all around him where his colleagues seem to have been given the very cre,~£t he is seeking. The Union realizes the Grievor has no c[a£m under the collective agreement ~ut argues that the gmployer's conduct estops it from failing to give the Grievor similar cred i [. However, foe several reasons, the grievance must fail. First, the Union has failed to show a consistent pattern Dy the Employer which violates or waives the strict provisions of the collective agreement. The situation of ~/ and [4n. is entirely in line with Article 25o1(b) and 2501(c). The situation with R and L also falls squarely within Article 25.1(b). They did serve on a consistent an.~ full-time basis for the periods for which they have been credited. The fact that the Employer.has not been so. technical as to deem a period broken by an isolated instance of slightly less than a 40-hour week should not be seen as waiving collective agreement rights. [nscead, it is a logiciel and sensible way of applying Article 2'5.1(S). Further, it is a practice which the Union should certainly seek to encourage, rather than to challenge and attack. Thus, the facts of the case do not support a finding that the ~mployer has consistently failed to enforce contractual rights. Further, there is a requirement of detrimental reliance in a case of estoppei by conduct. 'The CN/CP Telecommunications_case, s_~u.E~_a_, cites the well known dictum from Lord Denning where he says But where the party has made no promise, express'or implied, and all that can De said against him is that he by his conduct has induced the other to believe that the strict Fights under the contract will not be enforced or kept in suspense, then the · position is different because there is no question of good faith - no question of man keeping his word. In those circumstances it may b~ necessary . for ~he other party ~o show not onl'y that he acted, but also that he ac ted to his detriment, in the, b?.lief, that the strict rights would .not be enforced, r : ' However, there is no detrimental rel'ia6ce here. The Union has not been lulled, int° thinking that-the contract will not be e0forced. T~e Gr.i~vor candidly admitted that he accepted :the ¢la~s.'ified Pos..ition kn'owing that his seniority was the lowest in the Unit and that he was vulnerable to layoff and Dumping rights. 'He has not been "induced to act to his detrime~t."'~.'On .the contrary' he was aware of the situa~_ion from the start.; Thus, none of the necessary elements of ' estoppel by'conduct has ,been· established. This case illustrates the diffucult situation someone in the Grievor's shoes. Be has worked i~ 'the Service since 1986,' He has been a classified employee since May of 1988 amd ,is at. the bottom of the seniority list. Someone who has been working on ,a contract as an unclassified employees before May of 198.3 could be hired into his bargaining unit and be credited with seniority which predates th~' Grievor's even though that person entered the classified star~. well after the Grievor. The collective agreement makes some provisions for recognizing Go-Temp service in Ar~ic. le 25 but gives these employees no protections ove~. the amount of work they will get and/or crediting them for any work if or when the servicing pattern is D'roken or falls below a full-time level. But. it is' up to the parties in collective bargaining to detemine what the situation should be, As a Board of- Arbitration we can only apply the existing collective a~reement and the guiding principles, Since the collective agreement and the surrounding facts give no remedy for the G~ievor, the grievance muss fa~l. DATED at Toronto, Ontario, this 7th day of March, 1990.