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HomeMy WebLinkAbout1991-3084.Williams.92-12-15~; ! ONTARIO EMPLOYES DE LA COURONNE '~'~ ~ CROWN EMPLOYEES DE L ONTARIO GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS t80, RUE DUNDAS OUEST, BUREAU 2~00, TORONTO ONTARIO). M5G ~Z8 FACSI;',41LE,'TEL~COPIE .. ~4 [51 .225- 1.39~ 3084/91 IN THE HATTER OF AN ARBITRATION Under THE CROWN EMPT~OYEE8 COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Williams) - aBd - The Crown in Right of Ontario (Ministry of Correctional Services) Employer BEFORE M. Watters Vice-Chairperson FOR T~E G. Adams GRIEVOR Grievance Officer Ontario Public Service Employees Union FOR THE A. Pruchnicki EMPLOYER Grievance Administration Officer Ministry of Correctional Services HEARING November 26, 1992 The Agreed Statement of Facts provided by the parties~ is appended to this Award. These facts were supplemented by the viva'voce evidence of the grievor. The issue in this case is what is the appropriate continuous service date for the grievor. The Employer, in its primary argument, submitted that such question should be resolYed by recourse to the form of the contract. As a consequence, the Employer considered January 11, 1988 as the appropriate continuous service date as that was the date on which the grievor's contract of employment was formally extended to 40 hours per week. It was submitted that prior to that point, the grievor was working on a part-time basis and that such employment could not be considered under.article 25.1 (b) in determining the continuous service date. In response, it was the position of the Union that the issue was not to be resolved on the basis of contractual form. Rather, its representative asserted that I had to assess whether the grievor, prior to January 11, 1988, was engaged in full-time service.. The grievor testified that she worked the same hours and pattern of hours as other full-time Correctional Offic~,r's from May 1, 1987 onwards. She asserted that full-time Correctional Officers would not always work 40 hours in a week given the nature of their schedule. For example, it was suggested that they might work 32 hours in one week and then 48 hours in the next week, such that they accumulated a total o~ 80 hours over the two week pay period, The Employer did not contest that assertion, It was the thrust of the grievor's evidence that she generally worked 40 hours per week commencing on or about May 1, 1987. Further, she stated that she was always paid for 80 hours of work in respect of each pay period thereafter. The relevant Attendance Reports were presented at the hearing. These reports largely confirmed the grievor's testimony. The Employer referred to three (3) problematic pay periods within these reports. Firstly, it was noted that the pay period of August 21 to September 3, 1987, inclusive, showed a total of 72 hours worked. I am satisfied that the grievor actually worked 80 hours over this two week period as. credit for a double shift on August 30th was delayed to the end of the following pay period. That subsequent pay 'period therefore disclosed a total of 88 hours worked rather than 80 hours. Secondly, the Employer pointed to the pay period ending on November 12, 1987. The report for the period showed a total of 79 hours worked. More specifically, i~ showed that the grievor worked only 7 hours on November 12th. The grievor disputed Chat entry. It was her recollection that she worked, and was paid for, a full 8 hours. The remarks noted on the Attendance Report for December, 1987 seemed to confirm this statement. The Employer was unable to'clarify the purport of those remarks. Lastly, reference was made to the pay period of December 11 to 24, 1987, inclusive. Zt showed a total of only 72 hours worked. I am satisfied that credit was not given for 8 2 hours of sick leave which would otherwise have brought the total to 80 hours. The Employer also noted that only 32 hours were worked in the first week of that pay period. Its secondary position was that any backdating of the continuous service date should not go beyond December 17, 1987. This argument was premised on Article 7.2 of the collective agreement which states that the normal hours of work for employees on schedule 4.7 is 40 hours per week. From the Employer's perspective, the grievor could not be described as working full time if she did not meet that weekly threshold notwithstanding that she might work 80 hours over the pay period. On my reading of articles 7.2 and 25.1 of the collective agreement, the form of the contract is not the determinative factor in selecting, a continuous service date. Article 25.1 (b) does not speak to contractual form. Rather, the specified criteria is the "period of unbroken, full-time service in the public service, immediately prior to appointment to the Classified Service." The concepts of "unbroken service" and "full-time" are defined in the concluding paragraph of the article. It is clear that the grievor's period of service was unbroken in that it was not interrupted by separation from the public service. The outstanding issue, therefore, is whether her service may be characterized as full-time for purposes of the collective agreement. The definition of full-time in article 25.1 refers ~o "the hours of work schedules for the appropriate classification. As stated above, the grievor worked pursuant to Schedule ~.'Z. On a review of the grievor's wok history, I ?ind that she worked 40 hours in 35 of the 36 weeks .between May 1, 1981 and January 7, 1988. The sole exception established by the Employer was the week of December 11-17, 1987 in which she worked 32 hours. As noted previously, the grievor was credited with 80 hours over the pay period covering that week. In my judgment, such a work history evidences full-time service for purposes of article 25.1. This conclusion is consistent with the evidence before me, albeit limited, as to how the Employer treats its full-time classified employees. On all of the evidence, it is clear that the grievor worked 40 hours per week for virtually all of the weeks material to this dispute. In terms of the sole exception, she worked an average of 40 hours per week over the course of the pay period. Given these facts, I am inclined to treat her service as full- time in the context of article 25.1. It follows from the above-stated conclusion that the grievor's continuous service date should be adjusted to May 1, 1987. Merit increases should be premised on that start date. Any compensation flowing from the ordered adjustment is left to the parties to calculate. Interest should be paid on any amount found owing. I remain seized in the event any difficulties arise from the implementation of this award. Dated at Windsor, Ontario this tSch day of December, 1992. M.V. Watters GSB FILE NO.3084/91 AGREED STATEMENT OF FACTS IN THE MATTER OF A GRIEVANCE BETWEEN: THE ONTARIO PUBLIC SERVICE EMPLOYEES UNION (Audrey Williams) Grievor THE CROWN IN RIGHT OF ONTARIO (Ministry of Correctional Services) Employer 1. Ms. Williams is employed at the Metro Toronto East Detention Centre as a Correctional Officer 2. 2. The grievor commenced employment with the Ministry on April 6, 1987 as an Unclassified Correctional Officer 1 on a part-time employment contract for the period of April 6, 1987 to September 30, 1987. (Appendix 1) 3. The grievor's part-time employment contract was renewed for the period October 1, 1987 to March 31, 1988. (Appendix 2) 4. The grievor's part-time employment contract for the period of October 1, 1987 to March 31, 1988 was amended to allow for the extension of working hours to 40 hours per week or full-time employment for the Period January 11, 1988 to March 31, 1988. (Appendix 3) 5. The grievor's contract was renewed on a full-time employment basis, for the period April 1, 1988 to September 30, i988. (Appendix 4) 6. The grievor's full-time employment contract was renewed for the period October 1, 1988 to March 31, 1989. (Appendix 5) Agreed Statement of Facts cont'd. November 25, 1992 Page two 7. The griev0r's full-time employment contract was renewed for the period April 1, 1989 to September 30 1989. (Appendix 6) 8. During the period of this employment contract the grievor was appointed to probationary staff as of May 1, 1989, in the position of a General Duty officer, Classified, at the Correctional Officer 2 level~ Underfilling as a Correctional Officerlduring the probationary period. (Appendix 7) The grievor's continuous service date was 4~s~dated to January 11, 1988, the date on which the grievor commenced full-time contract employment. OCT 21~ '92 i5:E)6 FROI'I r~. APPENDIX 1 PIqGE.(i82 ' Noel hou~ of ~rk not :o sx~ ~l ~. -- 40.00 ~ ~ ~ic~ may ~ ~rmim~d ~ one ~I) ~ek'a ~ ~ ~ ~ e Ali ~la~ ~n~ ~ ~bi~ ~ ~ [~ai ~ ~k ~t~oldi~ ~ a~ th~ * ~oyee witch the ~intng ~it am ~~ ~ ~ O~(o ~ic ~ Emp$oy~ Un~n ~ i~ H~ Ot~ ~at .~TRO TORONTO ~ DE~IO~ CE~, 55 CIVIC ~., SC~BO&0U~. ~LL 2R9, * ~SU~ :~C~g 8C~DU~D P~T-~ B~LO~E$ ~0 ~Y ~8 ~Qg2~ TO '~OR~ UP OCT ~G '92 I5:OG FROm HTEDC ~UPT. OFF[CE APPENDIX 2 P~GE.E)03 ~or~ ~[a~to H&z. 3A1 ]_~,T.~.D.C. September 10, t~6l April 6~ 1987 co p~eeen~ ~ ~1 ~ ~y~n~ are subj~ ~ an init[ ~ w~k ~thhold~ng ~Hod a~.t~n ~m~t i$ ~a ~o ~ in arrean e Em~oyee ~thtn t~ ~j~ng unit ~ m~med by t~ ~io ~li~ ~im E~oy~ Union ~th i~ Head ~ at 1~1 Y~ge SL, Talon/o, 0~io. ~ ~i~ ~n~live ~ t~J $ 582 is ~r. ~or$e Clarke I~a{~at Hecro Toronto ~as~ Oetenti~ Centre, ~5 Civic goad, $carborou~e~tario BIL 2K9 * Cas~l, irregularly scheduled part-t£me ex~loyees vho ~y be requtzed Co 'rvork up CO &O.00 hours durin8 their York .~eek", OCT ;7 'S~ ~e~54 F~O~'l ~lii'~CO C C APPENDIX 3 F~aE.OeZ .~~ON'i' Me~ Torito ~t Det~t~ Cen~ DAli ~v 1~, 1988 . .. A~rovgl is requested for the foUowing: to ~a~fleation ._ ~y ,. Number of P~tions (if ~l/cable) ._ . (Pre~o~]y app~ov~ for fuA-time for the to . (Previou~y a~e~e~ for m ~he ~ri~ .. tom -- )  ~~ON OF WORK~G HOURS to 40.00 __ per week  GO ~M~RARY OR AGE~Y $TAPF for EMPLOYE~ N~H (if ~own) Mm A. CL~CA~ON C~o~ Offi~r 1' Re.on fop the a~ve noted ee~t ~ as fo~ows: R~M~ ~ W~er ~ ~ ~~~ ~_ _ ~eetifl~ t~at sufficer ' Super K~c~'P~Fsonnel Adm~trstor gX~U~VE Dffi~R~ ~PROVAL ~f a~Uca~e) OCT 26 '92 15:07 F;~OH HTEDC SUPT, OFF[CE APPENDIX. 4 '(~ f'~' {-) Ap~ln~ent $ewices Onto ~ N~ ~ e, 1987 ~ p~t OCT ~6 '92 i5:07 FROI4 HTEDC SUPT. OFFICE APPENDIX 5 PRGE.005 ' Minist~ ~ ~ . ~i- Appotntmenl to  Correctional '~ j e~alnlng Unit ~ ' Unclassified Se~ce Ont~o ~ ~ ~Re~l ~Mr, N~v ~ Fir. Ml~,le ' ~st ~nxur~ Nun~c~ TO O. . L ~tem~ [Os 1961 ~to~ 1, 19~8 [ Ma~ al~ I~89 ~ C~~ ~fieer 1 $13.~6 ' A~¢ h~m ol ~ ~ requ~d up ~. 40_00 ~um pc ~k. ' S~a ~y ~ ~rm~ed ~ ~e (1) ~ek's ~m~ by ~h~ ' All ~ ~y~n~ ~e subj~ to an initi~ t~ w~k withholding ~ a~ then ~ym~t is ma~ ~o ~e~ in at.rs * Em~ within t~ ~ini~ unit are te~nt~ by t~ ~rio Publ~ ~ice Emolov~s Union wi~h its H~d at 1 ~1 Y~ S~.. T~onm. Om~o, ~e union m~~ of Iai t ,58) iS. ~ ~ A full-time tmelassifled employee i~ fu/ly integrated into the eegulae si'aft schedule and works on a c~mt/~uou~ bas/= the ~ameres~lar shift bouts as & comparable classified emp/oyee. OCT ~IB '::l~ 15:08 FROm HT£Dd SUPT, OFFICE APPENDIX 6 PRGE.005 · A Full-time tmclassJfied em~oyee Ls flflX.y Jnte~*ated into the reKvlJu' m~iJ~ schedule and world ali a coflt~tuous baab the same regular ~,itt houris aa a com~xu'eble cla..q~fied employe~ TOTAL PAGE, 00~ Cm~e~ Officer, ~ Torrmto ~ l:~tet~Uon Centre. I am pleased to ~onfirm that you have been identified ~s ~e ot the ~~ e~~ ~ the a~v~ ~m~titi~. You w[~ fw ~mt., ~ ~t~t ~em~ 1,1989. ~ a~~t ~ ~~t ~ ~~ ~o~~ ~ ~ ~mm~~ ~ l Y~ ~y,