HomeMy WebLinkAbout1991-2564.Pitfield et al.92-12-14 ONTA RIO EMPLOYES DE L~ COURONNE
CROWN EMPLOYEE$ DE L'ON TA RIO
GRIEVANCE C,OMMISSION DE
SETTLEMENT REGLEMENT -
BOARD DES GRIEFS
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2564/91, 224/92, 277/92, 424/92
IN. THE NATTE3[ OF AN ~L~BITRATION
' Un,er
THE CROWN BHPLOYBBS COLLECTIVE B;uRG~N~NG ACT
Before
THE gRI~FANCE S~T~~ BO;~D
'BETWEEN
OPS~U (Pitfield et al)
The crow~ in Right of ontari~ : ~ '.:u~:.' :~'
Ministry of Correctional Services)
Kmployer
BEFORE: R. Verity Vice-chairperson
I. Thomson Member
M. O'Toole Member
FOR THE ' R. r"'Stephenso~
ONION Counsel
Gowling, Strathy & Henderson
Barristers & Solicitors
FOR THE J. Benedict
EMPLOYER Manager, Staff Relations & Compensation
Ministry of Correctional Services
HEARING July 10, 1992
DECISION
Ten individual grievances were filed by Sault Ste. Marie Jail
Correctional Officers which allege~ an employer violation of
Article 25.1(b) of the collective agreement in determining length
of continuous service.
The issue involves the 'proper interpretation of Article
25.1(b) and is said to be a Case of first impression. Article 25.1
reads in its entirety as follows:
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 (1)~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 the
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. ~.
Ail grievors, currently classified as Correctional Officers 2,
have previously worked for varying periods of time at the jail as
unclassified correctional officers. The dispute involves how much
of the grievors' unc'lassified service, if any, is to be credited
towards length of continuous service.
The facts are not in dispute. Classified employees at the
jail, other than those on a compressed work week arrangement, work·
40 hours a week, eight hours a day (Schedule 4.7 employees under
Article 7.2). 'Unclassified employees at the jail work under
individual term contracts of employment.
Daffy1 Pitfield testified as the representative
( -Pitfield,,)
grievor. He commenced work aS an unclassified correctional officer
on March 30, 1987,.and continued in that capacity under a series of
~·. .... ~ 'L·
term contracts until his appointment to the classified service as
a Correctional Officer 2 on December 28, 19.88. His appointments to
the unclassified service specified "authorized hours of work as
required up %o 40' hours per week - irregularly scheduled".
According to Pitfield, he was initially, given no credit for his
unclassified service. However, on November 18, 1991, he received
written notice that his continuous Servic~ date would be. "altered"
to August 5, 198.8. Despite the new continuous service date,
Pitfield noted that Correctional Officer Darlene Porpealia ranked
ahead of him on the institutional seniority list, although her
appointment to the classified service followed his appointmen{ by
approximately one year. Pitfield testified, in effect, that he was
scheduled for "available work" seven days to two weeks in advance,
he had no control over the schedule, that he had the right to
refuse a work assignment, and that during the 18 months of his
unclassified service, he worked an average of 32 - 40 hours a week
and, on occasion, 24 hours.
Jude Lake is currently Superintendent of the Sault Ste. Marie
" Jail. Mr. Lake described two types of contracts for unclassified
correctional officers: (1) "Full-time" Where the unclassified
.. officer worked the identical hours of a classified officer and (2)
~.= ."Part-time" where, like the griever Pitfield, the unclassified
officer worked "as needed up to 40 hours a. week". According to the
Superintendent, Pitfield's continuous service date was deemed to be
· . December 28, 1988 because during the previous week he had worked
.... : less than 40 hours as an"unclassified' employee.
Superintendent Lake testified that part-time unclassified
correctional officers worked from two hours to eight hours a day,
had no regular days off, and were utilized "as needed".
In June 1991, correctional staff at the jail asked for
clarification of Article 25, and requested that consideration be
given for work in the unclassified service of less than 40 hours a
week. According to..th~ Superintendent, he perceived "the
unfairness". · of Article 25 and in his words., "altered hours from 40
5
hours to a base of 32 giving the benefit of the doubt to employees
that they.may have been on approved leave of absence for that eight
hour difference''. Superintendent Lake noted that records for
approved leaves did not exist at the time. In the Superintendent's
words, !'I drew the line at 32 hours as a reasonable compromise to
be close enough to full-time".
In the case of Pitfield, Superintendent Lake noted that August
5, 1988 was the last week that Pitfield worked 32 hours or more,
and that during the previous week ~he worked . 0_'., hours which
constituted a break in service. For the 21 weeks following August
5, 1988, Pitfield worked six weeks of 32 hours and 15 weeks of 40
hours. .- '
.The Union contends that for the purposes of. Article 25.1(b),
a classified-employee should be credited with back service to the
date of the first contract 'in the unclassified service, regardless
of the number of hours'actually worked in a' particuiar week,
assuming there was no break between contracts and that. the employee
worked the requested hours. Mr. Stephenson contends that
irregularly scheduled unclassified employees are full-time
· employees since it is the employer, who controls the number of hours.
worked.
Mr.' Benedict maintains that the .grievors. had no full-time
service.prior to appointment to the classified service, and that
Superintendent'Lake made a determination in this case contrary to
the provisions of Article 25. Mr. Benedict argues that the nature
of the term contract for appointment to the unclassified service is
determinative of the issue, and that full-time service means that
an employee is required to work 40 hours each and every week.· ,In
the alternative, full-time service, is determined by actual hours
worked including approved leaves of absences totalling 40 hours Per
week.with the onus of proof upon the grievor. The panel was
-referred to the following authorities: OPSEU (Day) and Ministry of
Community and Social SerVices 1384/89 (Knopf); and Wilson and
Ministry of Correctiona1 Services 170/78 (Swan).
· The parties agree that Article 25.1(b) contains no ambiguity
· despite the arguability of different constructions. The panel's
~ task is to interpret and apply the collective agreement .as it.
! ~ ' stands.· The cases'submitted do not materially assist'.us in that
The dispute would appear to focus on the meaning of "full-time
service in the public service" in Article 25.1(b). "Full-time" is
defined later in Article 25.1 as "continuous employment as set out
in the hours of work schedules for the appropriate
classifications". These wo~ds are not inserted into the'clause ~or
ornamental reasons. The Union contends that the words "appropriate
classifications" in Article 25.1(b) must have a different meaning
· from thewords "equivalent civil service classification" in Article
3.3.1 which establishes the wage rate' for unclassified staff other
than seasonal employees, and in the definition of a seasonal
employee contained in Article 3.18. The question is not whether
these words are different, but whether there is significance in the
difference. The significance of the~words used in Article 25.1
that "full-time is continuous employment as set out in the hours of
work schedules for the appropriate classifications" simply stated
is this: there are a number of different work,schedUles specified
in Article 7 for full- time classified employees; for example,
Schedule 3 and 3.7 employees who are required to work 36-1/4 hours
per.week, 7-1/4 hours'per day and Schedule 4 and 4.7 employees who
work 40 hours~per week, 8 hours per day. In the instant matter,
the "appropriate classification" referred to in Article 25.1 is
that-of Correctional ·Officer 1 in the classified service; namely,
a Schedule-4.7 employee who works 40 hours a.week, 8 hours a day.
... '~: ";; ., . i': -. .. :. ~ -' ."' :; ' , .,.:. ' ..
. . .The aim of Article ZS.l'(b) of .the collective agreement is to
equate full-time employment in the Unclassified service with the
regular hours of work of a classified employee in 'order' to
determine length Of continuous service. It is an equitable
concession, we think, to..equate full-time unclassified employees,
in this case those working 40 hours per week, with full-time
classified, employees for the purposes of seniority. If the parties.
had intended to include any employee, regardless of h6urs worked in
the unclassified service, they could have said it in a sentence.
The drafting of a collective agreement involves the drawing of
lines.. In this case, we are of the opinion that, for the purposes
of length of continuous service, the line is drawn from the date
that an employee ,commences a period of unbroken, full-time service
in the public Service,' immediately prior to appointment· to the
Classified Service". Unfortunately for the repr.esentative grievor,
he didn't come within the line inasmuch as he worked 32 hours
during.the week prior.to his appointment to the classified service,
which, of course, does not constitute full-time service.
.To~' read ~Article 25.1(b) otherwise is, in our view, an
attempted addition to the collective agreement which is not there.
~In the result, therefore~ 'the representative grievor's date of
continuous service must revert to. December 28, 1988. Based on the
rationale of this decision, the continuous.service dates of each of
the' remaining~grievors will be adjusted according to individual
circumstances. , '~
DATED at Brantford, Ontario, this ~th day of Dec.mbe=, 1992.
M. O'TOOLE - MEMBER