The URL can be used to link to this page

Home My WebLink About1992-1284.Bedard.94-01-05 ~ ONTARIO EMPLOYES DE LA COURONNE [i ~ CROWN EMPLOYEES DE L'ONTARIO ~, i t;' ~i .. . GRIEVANCE COMMISSION DE ;~ 1111 SETTLEMENT . REGLEMENT BOARD PES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO, M5G lZ8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) "M5G lZ8 FACSIMILE /TELECOPIli: (416) .326-1396 1284/92, 3267/92, 1300/93 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD j~ BETWEEN j' l~ OPSEU (Bedard) g. Grievor - and, - The Crown in Right of Ontario (Ministry of Health) Green's Ambulance Inc "- Employer BEFORE w. Kaplan Vice-Cha~rperson I. Thomson Member D. Montrose Member ( FOR THE s. White GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors , J. Batty I FOR THE I EMPLOYER Green's Ambulance Inc HEARING December 2, 1993 ~l ., _..-___=--_.,.-_~_'_"___==---..2-.........:.- __..:.-_________~___L_~ ~_ _ -, '''''-'''---:-'.-'''''-- -...,.-........-.-- -- - ._--~ - - ------- - ---- - ( 2 (~" '--d.;. c.t ? Introduction This case concerns three grievances filed by Shirley Bedard, an employee of Green's Ambulance Incorporated in Simcoe. In effect, Ms Bedard grieves that her seniority date has not been properly calculated The case proceeded to a hearing in Toronto The parties were generally agreed as to the facts. Although no evidence was called, a number of exhibits were introduced on consent. Once the factual background of this matter had been set out, the case proceeded directly to argument. ! It is useful to set out Article 14 05 of the Collective Agreement: Seniority shall accumulate in the following circumstances only (a) when off work due to layoff, sickness, or accident, seniority shall continue to accumulate for a period of time equal to one (1) year; (b) when off work due to, personal leave of absence, then seniority will continue to accumulate for the first six (6) calendar months of such leave In the event that the leave of absence is to take a paramedical course, then seniority will continue to accumulate for up to one (1) year during such leave, (c) when absent on vacation with payor ona designated holiday; (d) when actually at work for the Company The Facts The grievor be~an work for Green's Ambulance Incorporated (hereafter "the employer") on October 23, 1987 She is the second most senior employee 1 On November 28, 1990, the grievor was injured at work. On May 30, 1991, -- ~---_. -~-- - - - ~ - - -- - -- -- - -.-..-- (~> 3 C. ,~ .... ." the grievor suffered a reoccurrence of her injury and began receiving WCB benefits. There is no dispute between the parties, that that grievor's seniority continued to accumulate, pursuant to Article 14 05 (a), for the period of one year from the date the grievor began her WCB leave, that is from May 30, 1991 to May 30, 1992 In June 1992, the grievor, the employer and the WCB entered into a - Vocational Rehabilitation Plan The objective of this six-week Plan was for the grievor to resume her pre-accident employment, and it provided for her graduated return to work beginning on June 8, 1992 By the end of this six-week period, the grievor was working regular hours The parties are agreed that at all times during the six-week Plan, the grievor performed,,- the regular duties and responsibilities of an Ambulance Attendant, and was, like all other employees, subject to the employer's direction and control She was not an "extra" employee Her salary was, however, paid by the WCB ,y On July 18, 1992, it wa~ determined that the Plan had been successful and that grievor .could return to full-time employment. She resumed full-time employment several days later Issue in the Case The employer takes th,e position that the grievor's seniority accumulated until May 30, 1992 at which time it stopped accumulating until July 1 8, \ 1992 when it was determined that the grievor could return to full-time work. Accordingly, the employer revised the grievor's seniority date from October 23, 1987 to December 10, 1987 in order to take into account the 1 period from May 30, 1992 to her effective return to work date of July 1 8, j 1992 when, in its view, no seniority accumulated. The union takes the position that while the grievor's seniority stopped accumulating on May 30, i , ___.___~'.L-:::: ---,-,-,--,,'~:rr~-_~ _=_'L....<.- _'---'---- ~ - ~ -- - -- --- - - - ---- ---- - ~- ---- -- ~--,~. _ ......,..,..,_y_!~_....~~.~.........M_ (, 4 (,. ">..,;'"''''' ~ ? 1992, it began to accumulate again on June 8, 1992 when the grievor resumed work with the employer pursuant to the Vocational Rehabilitation Plan Union Argument v In the union's submission, while the employer need not credit the grievor with seniority for the period between the end of her one year's absence and the commencement of her WCB Vocational Rehabilitation Plan, it must credit the grievor for the six weeks worked pursuant to that Plan as she was~ at all times, "actually at work for the Company," and this being the case, seniority accumulates according to the Collective Agreement. Union counsel noted that thegrievor was treated like every other employee, was subject to the employer's direction and control, and actually worked for the Company While it was true enough that the grievor's salary was paid by the WeB, the WCB was not, in union counsel's submission, the employer The " employer was Green's Ambulance, and as the grievor worked for that employer the Collective Agreement dictated that her seniority accumulate while at work. Counsel noted, in further support of his position, I that while on the Vocational Rehabilitation Plan, the grievor was, like all other employees, subject to the requirements of the Ambulance Act which sets out extensive statutory obligations of Ambulance Attendants For example, the grievor filled out various official ambulance call reports, and signed them on behalf of the employer Counsel also pointed out that the employer received the benefits of the grievor's labour in that the grievor was not treated as an extra employee, but rather as part of the employer's regular staff complement. Union counsel asked that the grievance be allowed and that J ~_~--'--C___----i~__~ - . .""" _ --" ::.J~_",-- _--'--'-'- r-' -.. '- _4_--'<-_ ~___ ( ( 5 .~. i~ ? -- the Board direct the employer to credit the grievor with seniority for six weeks of work. Employer Argument In the employer's submission, the grievor should not be credited for time worked pursuant to the Vocational Rehabilitation Plan because she was not ; paid by the employer for this work. Mr Batty noted that the grievor was, during the term of this plan, still on WeB, and he submitted that if the grievor had reinjured herself during this period that injury would not have been held against the employer Mr Batty also pointed out that at the star.t of the Vocational Rehabilitation Plan thegrievor did not work a regular shift, and that the whole purpose of the Plan was to see if the grievor waS able to return to work as areguJar employee In the employer's view, until that issue was determined the grievor was not an employee of the employer, and so should not be credited with seniority Mr Batty asked that the grievance be dismissed \ Decision Having carefully considered the submissions of the parties, we find that Article 14 OS(d) has been breached In our view, the evidence establishes that the grievor worked for this employer for a six-week period beginning on June 8, 1992, and we are of the view that once she resumed work her seniority began to accumulate We reach this result for a number of reasons The grievor performed the same duties and responsibilities as all other employees She was subject to the direction and control of the employer and, in fact, performed services for this employer The only difference between the grievorand other -----""-- --" -~ - -- --- - _. --- I r."" (' I \;~'" 6 " ~ ~f." " , bargaining unit employees was that for this six-week period her salary was paid by the WCB pursuant to a Vocational Rehabilitation Plan. The WCB was 'not, however, her employer Green's Ambulance Service was And that being the case, her seniority, as required by Article 14 05(d), began to accumulate as of June 8, 1992 not July i 8, 1993 In effect, we reach this result based on our finding that during the six weeks in question the gri~vor, notwithstanding the fact that her salary was paid by the WCB, was, as described in the Collective Agreel11ent, "actually at work for the Company" She was not actually at work for the WCB That being so, Article 14 05(d) requires seniority to accumulate Accordingly, and for the foregoing reasons, we declare that the Collective Agreement has been breached, and we direct the employer to further revise the grievor's seniority date so as to credit her for the six weeks worked I ' while on the Vocational Rehabilitation Plan We remain seized with respect to the implementation of this award DATED at Toronto this 5th day of January, 1994 /1/ '- ~ ----------------- William Kaplan Vice-Chairperson ~ k,. ~ ~-- ----- (I /l'homson Mem~ ~ '~ ~ ~~ ------ ------ D Montrose Member -- ._- -----.---- - -- ~~~-~ -- ~