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HomeMy WebLinkAbout1991-1973.Jacobs & D'Aoust.95-06-28 ONTARIO EMPLOY'~$ DE LA COURONNE CROWN EMPLOYEES DE UONTARIO GRIEVANCE COMMISSION DE SETTLEMENT R~GLEMENT BOARD DES GRIEFS 180 DUNDAS S~EET WEST SUI~ 2100, TORONTO .ON M5G 1Z8 TE~PHON~L~PHONE : ~1~ 326-1388 180, RUE DUNDAS OUES~ BUR~U 21~, ~RONTO (0~ M5G 1Z8 ~CSIMILE/~L~COPIE : (41~. 326-1396 GSB # 1973/91 OPSEU # '91E264-9-1E266 IN THE MATTER OF AN ARBITRATION Un,er THE'CROWN EMPLOYEES COLLECTIVE BARGAINING ~CT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Jacobs/D'Aoust) Grievor - and - .The Crown in Right of Ontario (Ministry of Correctional Services) -Employer BEFORE O. Gray' Vice-Chairperson FOR THE S. Laycock GRIEVOR Grievance Officer Ontario Public Service Employees Union FOR THE G. Basanta EMPLOYER Grievance Admninistration officer Ministry Of. the Solicitor General & Correctional Services · HEARING . May 30, 1995 Decision These grievances were filed on September 10, 1991. The grievors were then, and still are, unclassified employees of the ministry working part-time as cooks at the Cornwall jail. The grievance of Bonnie Jacobs (then Barkley) said Statement of Grievance Working Hours . Unable to have breakfast cooked and served before 8:00 a.m. inmates unsupervised before I start work. Settlement Desired Job Spec's determined, am I entitled to any breaks, main priorities of my job. The gri'evance of Roxanne D'Aoust (then Muir) said Statement of Grievance Reduction of working hours.. Settlement Desired To have enough time to get the meals prepared properly and out on time. I would to know [sic] what my job spec is and I would also like my standing order. A similar grievance by Ida Whaley was scheduled to be heard together with these two, but was withdrawn at hearing. At hearing, the union said these grievances raised two issues: an issue of health and safety and an issue about the allegedly improper appointment of the grievors to the unclassified staff. The parties have since settled the health and safety issue, and that aspect of the grievances has been withdrawn. This award addresses the improper appointment issue. The Facts Each party filed a statement of alleged facts at ~he hearing. Based on those statements and their discussion of them with me, the parties' representa- fives agreed on the following: Ms. Jacobs was appointed to the unclassified service as a Cook i on June 11, 1988. Ms. D'Aoust was appointed to the unclassified service as a Cook I on March 3, 1991. Prior to September 3, 1991, the kitchen schedule at the Cornwall Jail was as follows: Classified Cook II 6:30 a.m. - 2:30 p.m. Mon-Fri. Unclassified Cooks 1:00 p.m. - 5:30 p.m. Mon-Fri (rotating schedule) and 7:00 a.m. - 5:30 p.m. Sat-Sun The full time classified cook worked a Schedule 4.7 or 40 hours/week as per Article 7.2 of the Collective Agreement. The grievors each had regular assignments of afternoon and weekend hours totaling 87 hours in a re- peating, 4 week rotating schedule. They also worked additional hours when called in to replace the full time, classified cook. The hours of kitchen workers were changed in mid-August 1991 and again on September 9, 1991. The explanation given at the time was that this was due to ongoing budget constraints. The union does not suggest that the change was for other than bona fide reasons. In the result, from and after September 9, 1991 the kitchen schedule was as follows: Classified Cook 7:00 a.m. - 3:00 p.m. Mon-Fri Unclassified Cooks 2:45 p.m. -5:30 p, m. Mon-Thur . · (rotating schedule) 2:30 p.m. - 5:30 p.m. Fri 7:00 a.m. - 5:30 p. m. Sat-Sun The effect of this on the grievors was that their regularly scheduled hours were reduced from 87 .hours every 4 weeks to something less than 72 hours every 4 weeks. Inmates helpers work in the kitchen. They are escorted to and from the kitchen by correctional staff. They arrive at the kitchen between 6:30 and 6:40 a.m. on week days, and at or after 7:00 am on weekendS, to pro- vide assistance to the food service staff. This did not .change when the kitchen workers' hours did, so after that change inmate helpers arrived .in the kitchen before the cook on week days. The parties were in dispute about the nature and effectiveness of the measures which the employer took to monitor inmate helpers while they were in the kitchen. Each called a witness to address that issue. In view of the parties' set- tlement, it is unnecessary to describe their testimony. Argument With respect to the improper appointment issue, the union argued that having regard to article 4 of the collective agreement, appointments to the un- classified service pursuant to section 8 of the Public Service Act are to be used only to fill "temporary" positions, not "permanent" ones. It submitted that the grievor's positions were a permanent part of the kitchen work schedule. Accord- ingly, it said, the grievors were improperly appointed to the 'unclassified service and should be appointed to the classified service as regular part time employees, with full retroactivity and benefits. It relied on the decision in Lavoie, 441/91 (Keller) in support of these submissions. The statement of fact filed by the union contained the assertion that the reduction of the grievors' hours in September 1991 had "kept them from being classified by 1/2 hour each month." It made reference to Article 61. l(a), which prescribes the maximum and minimum hours of work for a regular part-time position in the classified service. The union did not pursue this in argument. Its representative confirmed that it did not suggest that the grievors' claim to clas- sified status turned on the September 1991 reduction in hours. The employer observed that Article 4 did not apply, noted that the Lavoie decision relied upon by the union was quashed by the Divisional Court, and submitted that the grievor's cannot grieve on the basis that they were improp- erly appointed to the unclassified service. Decision Article 4 of the collective agreement in force at the time these grievances were filed made no reference to positions outside the classified service, and did not appear to limit the employer's power to make appointments under section 8 of the Public Service Act. The interpretation of that section in Lavoie, supra, was at odds with three other decisions of the Grievance Settlement Board, including Parry, 237/91 (Low). All four decisions became the subject of judicial review pro- ceedings. In a decision dated February 12, 199'3 allowing the employer's applica- tion for judicial review of the decision in Lavoie, the Divisional Court said this: As in the Porter, Parry and Singh matters, all of which we have disposed of as above, the Lavoie matter involves an interpretation of section 8 of the PSA The Board in Lavo{e determined thag he had not been properly appointed to ' the unclassified service because "he was not employed or appointed to meet temporary st ,a~mg requirements". In the course of reaching this conclusion, the Board said that "in the instant case we have found the grievor% position was an ongoing one with the work being performed the same as that performed by classified employees"'. It i~. our opinion that the Board's interpretation of section 8 is not correct and'that its conclusion is patently unreasonable. It is our view that the decision of this Court in OPSEU (Beresford) doesn't require us to conclude .. otherwise. The application insofar as it relates to Lavoie is therefore allowed. The Divisional Court dismissed the umon's application for judicial review of the decision in Parry, where the Board had concluded that under section 8 of the Public Service Act , ... there is no Circumscription of the power to appoint to the unclassified service except that: (a) the first appointment must be for a period of less than a year; and (b) the "unclassified service" is deftned by the Regulation. The union would have me apply here the very analysis which the Court rejected as patently unreasonable in a proceeding to which this union was party. I do not consider it appropriate to do that. I accept the view expressed in Parry. There is no suggestion that the grievor's appointment was contrary~to the rele- vant regulation under the Public Service Act. ! am' not persuaded that Article 4 of the relevant collective agreement constrained appointments to the unclassified service. Accordingly, these grievances are therefore dismissed. Dated this 28 day of June, 1995. Owen V. Gray,'Vice-Cha~(~ /