HomeMy WebLinkAbout1989-1384.Day.90-04-19 · ' ':,' ON TA RIO EMP£OY~$ DE LA COURONNE
: ; ~:'.(. ' .~ CROWN EMPL 0 YEES DE L'ON TA RIO ·
GRIEVANCE COMMISSION BE
SETTLEMENT' R~GLEMENT
BOARD DES GRIEFS
~80 DUNDAS STREET WEST, TORONTO. ONTARIO, MSG 1Z8- SUITE2100 TELEPHONE/T£L~'PHONE
,~aO, RUE DUNDAS OUES T, TORONTO, (ONTARIO) MSG lZS- SUREAU 2100 '(4 :/~) 598.0688
1384/89
IN ~HE HATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE 'SETTLEMENT BOARD
BETWEEN:
OPSEU (D~'y) .,
, , .. - , Grie~or
- - and,'-
The Crown in Right of Ontario
-('Ministry of Community & 'Social Services)'
Employer
- and' ·
BEFORE: p. Knopf Vic~-Chairperson
H. O'Regan Member
F. Collict · - Member
FOR THE N. Luczay
GRIEVOR: Grievance Officer
Ontario Public Service '"
Employees Union
FOR THE J. Knight
EMPLOYER; Counsel
Fraser & B~atty
Barristers & Solicitors'
HEARING: March 2, 1990
DEC I S I.ON
This is a claim for sever ncc Day. The facts are not
! in d~spute. '
The Grievor began working as a part-time unclassified
public servant': in April of 1984. He then contimued to work
on a series of,icontracts as both a full-t_ime and part-time.
public servant~ The contracts an their status were as
fol lows:
1. 04/25384 - 27/05/84 - Part-time
2. 28/05/84 - 30/11/84 - Full-time
3. 01/12/84 - 31/03/85 - Full-tzme
4, 01./04/85 - 05/05/85 . - Full-time
5. 06/05/85 - 02~0'6/85 - Part-time
6. 03/06/85- 29/08/85 .... Full-t~me
7. 01/09/85- 31/.12/B5 .... Part-time
On January 1, 1986, the Grjevor was' appointed as a part-time
member of the Classified service a~d remained-~ there until his
resignation on epr. ember 21, 1989
The Union claims that the Grievor is entitled to
severance pay in accordance with Article 81,1(b) which reads
as follows:
ARTICLE 81i - TERMINATION PAYMENTS
·
81~ An emplo!;ee who has comp eted inimum of
(
to be an employee for any reason other
than
(i) dismissal foq cause under
section 22 of. the Public Service
Ac t, or
, (ii) aba~ndonment of position under
~-~tion 20 of the Public'Servlce
ACt - ..~ ~ . .
is entitled {o severance Day equal to that
'' port~.o~ of a w~ek's Day'represented by the"
,,,, ratio of his.~weekly hou.rs of work to
f~ll-time employment, for each year of
continuous serv~ice.'~ [emphasis' added]
Both parties agree that th~ wo~d "serv'i~e"' in Ar"t-icle 81.1(b),
means "continuous service" as con'{aine'~ at the end of the
· ' ' ; · ;' ' ," ' ' -" "i '
section a6d"in Article:25~l which reads as follows:
ARTICLE 25 ~ SENIORITY (LENGTH OF CONTINUOUS
SERVICE )
25~.1 An employee'
~s le.ngth of continuous service
W'ill ~cc'umulate upon cbmpletion of a
" .p~robatfonary period of not'more .than one
~ -year .and :shall commence
-(a)' f-rom the date of appointment to. the,
~ Classified Service for those employees
with no p~ior servide in the O~itario
Public Service, or
(b) from the date on whfch'an employee
commences a period of unbroken,
full-time service in. the public service,
immediately prior to appointment to the
Classified Service, or
· ': (c) fo~ a re~,~lar part-time civil servant,
'from January 1, i9~4 or from the date on
which he commenced a Perio'd of unbroken,
part-time service in the public service,
< immediately prior to appointment to
_, :re'~.ular.part-time position in the civil
servzce, whichever is later.
"Unbroken service" is that which is not
inte'rrflpted by'separation from the public
· service; '"full;time'' is. continuous employment
.. ~ ,as s. et ~out in .th,e hours of work schedules for
' '~the appropriate classifications;· and
J"part-time~is continuous, employment -in:
.acc. ordance with the hours of work specified
in Article-61.~l. [emphas'is added]
The Union argues that because the( Griever has an unbroken
history of service dating back toII !984, he qualifies under
/
Article 81.1(b) for severance payI. It was stressed that the
/
collective agr',eement recoqnizes unclassifie~J service for
_purpose of determining entitlemen.~t. It was argued that any
denial of sUCree-ent,siat~emptd .f e e the
collective ag t service for
classified and~i unclassified staff. The Union relies heavily
on the case ell Bickerstaff and Turner vs. the Ministrz_o_f_'
Gvernment'Servi'ices, unreported deII
i?'ision~ of Swinton' dated
February 12, 1980, Board File 90/,79 and 74/79.
The Migistry argued thatit his Board must recognize
that the term '!'continuous service~ in the collective
agreement is a? expansive definit~io~| 'a;~d that i.t must be
accepted as it: has been defined 'i! the coll.ective agreement
by the parties':. It was said tha~ Article 25.1(c) limits the
'period of enti.tlement to the, date when the Griever comnlenced
a period of service that~was '
(a) unbroken
(b) paCt=time, and ~-
(c) was immediately prior to the appointment to the
" cl~$sif i~d position.
On the facts at hand, it was said that this should be
September 1, 1~85. On that basis, he would not have fi~e
y~ars of service which are necess.a, ry to'qualify under
Article 81.1.'In other word. si ittiwas~argued that as a
part-time classified employee; the Griever could only
calculate bac~ki~to the Period' or'his unbroken part-time
service immediately prior to his appointment to the
'f r th~'Em~lo~er candidly
classified wor~ force. Counsel ..
conceded the lack. of lopic and fairness that res'ul-ts where
someone like the Grievor has unbroken full-time service prior
to the part-time employment and yet has his entitlement
.~roken by that full-time service. However,. the Board was
· reminded that.we-are only empowered to.'app.ly the nepotiated
terms of ~.he collective aoreemen t, -even when"those -terms do
no't seem fair or l+oQ/cal. Further, we were referred to
Article 76.7 ~fo support 'the arpument 'that the parties have,
in other places' of '[he collective apreement, put their'minds
to crediting continUous employment as a part-t/me or a
full-time employee' for purposes of vacation entitlement. A
lack of any similar lanpuaGe in Article 25 was 'said
indicate that the parties must be deemed to have intended the
distinction. Counsel for the .Employer prepared an excellent
summary, of the'' Possible interpretations of "continuous
service". The model's expose the lop ical- consequences of each
possible position We have appended this as Appendix "A"- to
our Awa rd.
The Decision
Let us first deal with the applicability of the
Bickerstaff-'and Turner decision .to 'the' facts at hand. -The
Un]on has' relied heavily on this case. However," the case is
not of any~ ~great assistance to the dispute before this panel.
The Bickerstaff and Turner decision dealt, inter alia, with
the question of whether unclassified service prior to an
appointment tO the classified service could be used to
calculate accumulated attendance 'credits. Further, the
9rievors 'in 'that .situation were full-time classified
employees. .In the' facts at hand, we have. a claim'by a
9rievor who was a par.t-time classified employee.< Further,
the Employer is not supGestin9 that service in the ipublic
service prior to an appointment to the classified service
should not be calculated for purposes of Article 25.1.. On
the contrary, it is accepted that unclassified service can
and should enter the calculation,. Thus, the
Turner decJsion is not. of any ass.tstance or application to
the case at hand. !
The pa~ties have agreed that the language of the
collective, agreement that we are ~ealing With in th~is~case is
clear and'unambiguous. Thus, we iturn to ~t..he. collec.tive
agreement to determine the Grievo!~.'s~! 'right.
based on Article 81.1,(b) which provides that' he is ..entitled
to separation ~Pay if he has five years of cQntinuous service.
In order to und.erstand what the p..arties~mean by."con'tinuous
service" in the col-lective agreement we turn to Ar~ticle' ~5',1.
Sin~e the GrieVer, at the time of the claim, was a regular
part-time civil servant, we look ~.to .Art.icle~ 25.1(c)
determine h.is length of con.tinuous service. Th.at Article
tells us that .his. date of continuous service commences from
the date on which 'he commenced a period of unbroken'service
as a part-time il, public servant, immediately prior-' to his
appointment to a regular part-tim~ position in the civil
service, Immediately prior to being appoinfed to the
classified part-time :staff~, the G~ievor was workinG on a
part-time contract that had commenced on September 1, 1985.
That date began the period of "un~roken,l~ part-time service.
... immediately,>prior .to [his] aDgointment to' the regular
part-time posi~tion.." Thus, accordinG to the strict.wording
of Article 25.]~, the Griever's length of con~tinuous service
must be deemed.to have commenced as of Septembec 1, 1985,
This cOnclusion immediatelg reveals the Gaps in
protection and ~'.the:lack o~ lo~ic nd.. fairnes~S in .
Article 25.1. iTaking the. Griever as an.example, he has
worked continuqusly in the public service since April Of
1984. This Has been on a part-time and a full-time.basis.
If. he had only '~?worked on a part-t'~me basis since April of
1984, the ~stridt wording of Attic e 25.1~(c) would allow him
to be credited with .the entire, length of continous part-time
- 6 -
service back to APril of 1984 an~ h~e would qualify fo'r
severance pay.-~The fact i~~ that after ~hat date he undertook
a full-time commitment fo'r the Emp]~oyer fo~'6ver a
That very element of full-time commitment disentitles him to'
credit any of that service and indeed interrupts what Common
sense would t~ll u.s would be a con.tinUous length of service
to ~he Employer. However, 'Article 25.1(c)tis ..... clear tha't only
the part-time service in the public service i'mmediately prior
to the partltime ap~oint~en~ and that is "unbroken;" can be
· 'used' for the purpose of c~lculatin9 the le6gth ~f continous
se rv ice.
These conclusions are inescapable Particularly given
the wordin9 of'A~ti'cle 76"7, .That Ar.tic~provides:
An employee with over Six (6) months o~ service
may, with the a~proval of the Deputy Minister, take
.vacation to the extent of his vacation entitlement
and his vacation credits shall be reduced by any
such vacation taken.. For this purpose, an employee
may include any continuous employment' as a' regular
part-time .employee, or as a full-time employee in
.... the Public Service Of Ontario immediately prior to
his appointment to the civil service.
Th'is article deals with vacation entitlement for part-time
classified e~ployees. The language in this article shows
that the parties have clearly turned their minds.to the
concept of "continuous employment" as both regular Dart-time
employees or as full-time employees prior to the appointment
to the civil service, 'The article allows that both kinds of
service' can be taken into consideration fo~ vacation
entitlement. Had the parties intended the same type of
dual credit for determining the length of "continuous
service" for seniority purposes as opposed to "continuous
employment" they could easily have done so with similar
language as is found in Article '76. The contrast in the
language con'tained in Article 25 reinforces our reluctant
conclusion that the collective agreement does not intend to
- 7 -
allow part-time class, ified employees to have ct, edit for
&
anything other~ than part-time service prior to their entry
into the classified work force.
As stated above, 'the language of the collective
agreement is clear. The Grievorls situation illustrates the
unfairness tha:t.can result from such language. "As a panel we
can 'conceive 0f no possible' just~lfication, for this type of
situation to exist. We strongly suggest that the parties
turn their'minds to the ineq~uit!~s ¢optain?d in Arti..cl'e 25.1
in their future negotiations. ,owever, unoer the
circumstances,I there is no remed~ available for this Grievor.
· .Therefore, the grievance is dismissed.
DATED t T6ronto, Ontario this ]9th d.ay 07 April,
1990. .'
il ~ ~' .,
., .-il
. Paul~l Knopf - Vice-~hairperson
H.' O'Regan - Member
F~. Collict- Member
APPENDIX
INTERPRETATIONMODELS
E~ml)loye~s: ~' "john Smith and'Jane Doe
ChronoJogy:
Jan, 1,. 1984. Smith and Doe first appointed to the unclassified service
-Both are part'time emploY,ees
1984 - 1985 Smith and Doe have a series of unclassified part time
contracts
Jan. 1, 1986. Jane Doe, only and for thefirst time, is appointed to an
unclassified full time"position With a contract which expires
June 30, 1988
July .1, 1986 Jane Doe is appointed t0.an unclassified part time position
1 986 jOhn smitl~ continues his series of unclassified part time
.contracts .,
Jan, 1, ~ §8?' Jane Doe, only and' f~r the ~econd time, is appointed tO an
unclassified full t. imel POsition with a contract which expires
June 30, 1988
July ..1, 1987' Jane Doe is appointed to an' Unclassified part time position
19 8 7 'John'Smith continues~his series of unclassified part time
c~ntracts
Jan. 1, 1988 Jane Doe, only and for the thir~ time, is appointed to an
unclassified full time position with a contract which expires
June 30, .1988
July i, 1988 Jane .Doe is' a~pointed 'to an unclassified part time position
1988 ... John Smith continues his series of unclassified part time
,. contracts ,.., ~;,
. Jan. 1; 1989 ,. Smith and Doe are'app0inted to the classified service as
regular part-time civil servants .. .
Jan. 1, 1990~..~ Smith and Doe both resign .,.
~MCSS/Day Grievance ,, Pa~e !
I
Models: A. "Service" means" nt~no service"
.Result: Smith has s~x years and qualifies under
.: Article 81.1 (b);
Doe has li/2 years and fails to qualify
B. "Service" has a new'rower meaning than "continuous
service"; namely, o ~ly classified service- ' '
Result:- Smith' and Doe'b~th haVe ode year and fail
to 'qualify
C. '. "S~rvice" h'as'a br.o,ader meaning than '"continuoUs
service" and includes all part time service whether or
service · ·
Resu~: Smith has ,S, ix yearsand qualifies;
Doe has 4 1/2 years and fails to qualify ·
D " rv~ e"hasabro~aI r'm 'nm h n" n~n
. Se 'c de "ea"gt a co t' uous
service" and ~ncludes all service whether or not
classified, whether ~r hot Continuous'; and.whether
karl time or full tim~
-~: Smith and Doe both have six years and
qualtfy; however, the calculation of, severance pay
· ~s based on 'continuous service"; therefore,
! Doe i~, entitled to a ~alculation of only 1 1/2 years'
Conclus[~13 end Theory:
The only fair model il B., which provide~ for narrow entitlement which does
not unduly favour an employee who has had '~ly part time contracts over an
employee who has had occasional ful~ time co~tracts, since service does not
run in either case until the employees are civil servants.
Contractually, becauSe the parties have clearl, defined "continuous service"
[Article 25.1 (c)], once the entitlement threshol J'is crossed, the calculation of
severance pay favoUrs employees who have had "unbroken, part-time
service in the public service" [our emphasis], v hich may not seem fair, but which
is clearly within the power of the parties to ne~'~)tiate.
Model A., which the employer argues as the cq. mm0n interpretation of past" _~
practice is no more or less fair or reasonable than either Models C. or D. in
respect of entitlement.
MCSS/Day Grievance t . Page 2