HomeMy WebLinkAbout1990-1864.Paananen.91-08-27 ONTARIO EMPLOYES DE LA COURONNE
C,¢10 WN EMPLOYEES DE L 'ONTARIO
GRIEVANCE COMMISSION DE
SETTLEMENT R~GLEMENT
BOARD DES GRIEFS
750 O~JNOA$ STREET WIST, SUITE ~'I00, TORONTO, ONTAR/~ M$G fZ~ T~LEP~ONE/TELE~HO~E (4~ 3~6-~
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[864/90
[~ THE ~TTER OF
Under
THE CRO~ ~P~YEES COL~CTI~ B~GAINING ACT
Before
THE GRIEV~CE SETTLE~ BO~
BETWEEN
OPSEU (Paananen)
Gr£evor
- an~ -
The Crown in Right of Ontario
(Ministry of Natural Resources)
Employer
BEFORE: E. Ratushny Vice-Chairperson
$. Urbain Member
A. Merritt Member
FOR THE M. Wright
GRIEVOR Counsel
Cavalluzzo, Hayes & Shilton
Barristers & Solicitors
FOR THE G. Anand
EMPLOYER Counsel
Stringer, Brisbin & Humphrey
Barristers & Solicitors
HEARING., June 25, 1991
DECISION
The Grievor was employed by the Ministry of Natural
Resources as a Park Warden, classified as a Resource Techni'cian II.
He has worked as a Park Warden at Martin River Park in the North
Bay District i~ the North East Region during the following periods:
- June 17 to September 1, 1985;
- June 13 to September 7, 1986;
- June 15 to September 6, 1987;
- June 13 to August 28, 1988;
- June 19 to September 3, 1989;
- June 18 tu SeptemDer 9, 1990.
He also worked as a Manual Worker at the same park during the
following periods:
- April 9 to June 16, 1985;
- May 20 to June 12, 1986;
- May 4 to June 14, 1987;
- May 9 to June 12, 1988;
- April 30 to June 17, 1990.
In 1989 he was Unavailable as a manual worker because of an
operation.
Thus, in 1990, the Grievor worked for seven weeks as a
Manual Worker, followed by twelve weeks as a Park Warden. In the
same year two employees with less seniority than the Grievor worked
on a twenty-four week contract from April 23 to October 5 as Manual
Workers. The Grievor claims that, in effect, he was laid off on
September 1O~ 1990, while the other two workers, with less
seniority than him, continued to work for an additional four weeks
until October 5, 1990. The Grievor asks to be compensated for this
four week period.
2
The relevant provisions of the Collective Bargaining
Agreement are as follows:
3.18 A seasonal employee is an employee appointed
~ ~ for a period of at ~east eight (8)
consecutive weeks to an annual' recurring
full-Time position in the unclassified
service in a ministry ....
3.19 '£he probationary period for a seasonal
employee shall be two (2) full periods of
sedsonat employment of at least eight (8)
· consecutive weeks each, worked in
consecutive ~years in the same position in
the same ministry.
3.21.1 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.
3.21.2 Where the Employer reduces the number of
seasonal employees prior to ~he expiry date
of employment specified in the contracts of
employment, seasonal employees in the same
position shall be laid off in reverse order
of seniority.
The Employer took the positiun that the Grievor was not entitled to
recall rights in relation to the Manual Worker position since he
had never satisfied the probationary period for that positi9D. He
had, of course, satisfied the probationary period as a Park Warden.
In our view, the Employer's contention is met by the
following passage from the decision of the Board -in Genery
(14~8/85):
Therefore we find that "positions" is not a fixed
te~m of art as found in the phrase "in their
former positions" in Article [3.21.1]. Its plural
nature indicates a reference to multiple former
positions, and not just the one in which probation
was served...we find that the "former positions"
described in Article [3.21.1] refer to any
3
position formally held in the past by a seasonal
employee who has completed his o~ her probationary
period...(At pp. 11-12, per D. Fraser).
Counsel for the Employer also advanced rather technical arguments
to suggest that the Employer had never occupied the position of
Manual Worker in question. We find these to be without substance.
The grievance succeeds. However, it is not reasonable for
the Grievor to be entitled to 'both the Park Warden and the full
seasonal Manual Worker positions. The Manual Worker position in
question involves a twenty-four week contract for the entire
season. The Park Warden position involves a few weeks of manual
labour in the Spring followed by work as a Park Warden throughout
the summer. The Manual Worker position in question is for a longer
duration but the Park Warden position is at a higher rate of pay.
In such circumstances, the employee with greatest seniority should
be given the option, prior to the start of the season, as to which
position he or she would prefer.
The Grievor is entitled to be compensated for the period
from September 10, 1990, to October 5, 1990, as a Manual Worker.
However, there will be set off against such sum, the difference in
pay between a Manual Worker and a Park Warden during the period
from June 18, 1990, to September 9, 1990. Interest will be paid on
compensation due. We will remain seized in the event that the
parties have any difficulty in implementing this award.
DATED at Ottawa, Ontario, this 27t~.~day of Au~u_st, 1991.
S. URBAIN, Me--her
A. MERRI~T, MemDer