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HomeMy WebLinkAbout1992-1290.Chamaillard.95-10-24 '. ~ ~ "i ~ . \ ONTARIO EMPLOYES DE LA COURONNE CROWN EMPL DYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE Q, v (} (). , W\" ' \~ , ; SETTLEMENT REGLEMENT , - BOARD DES GRIEFS 1}s ft1<L.Ql;ND""'U1~'U"". 'DRD"'D. ON"''''. MSG 'Z8 >E<EPkONo""'PHONo ,.." '2<;-'''' ClIo. A!eEN ~UR AU2100 TORONTO (ONTARIO) MSG lZ8 FACSIMILEITtLl~COPIE (416) 325-7396 ~' GSB I 1290/92 , OPSEU # 92E707 . 1 OCT 2. 1995 : ..."..". IN THE MATTER OF AN ARBITRATION CROWN EMPLOYEES GRrEVANCE SETTLEME:NT Under BOARD THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Chamaillard) Grievor - and - The Crown in Right of ontario (Ministry of the Attorney General) Employer BEFORE M Watters Vice-Chairperson M. Lyons Member F. Collict Member - - FOR THE R Blair/K. Whitaker GRIEVOR Counsel Ryder, Wright, Blair & Doyle Barristers & Solicitors FOR THE M Fleishman EMPLOYER Counsel Crown Law Office - civil Ministry of the Attorney General HEARING February 17, 1995 June 14, 1995 ~ '; . - 1 - By decision dated September 21~ 1993~ another panel of the Grievance Settlement Board f oLmd that it possessed the requisite jurisdiction to determine whether the grievor~ a freelance Court Monitor~ was an employee within the meaning of sec:tion 1( 1) (f) (vi) of the Crown Employees Collective Barqaininq Ac:t The Board, in that instance, stated: "Having decided to ta~: e jurisdiction with respect to this case, it is appropriate to set out the procedLlre to be followed. Having carefully considered the employer s request, and the Lln i on s submissions on point~ we are satisfied that this is an appropriate case to bi fl.\rcate the proceedings and hear evidence and argument first on the status issue, or, pLlt another way, whether the grievance is arbitrable. Having heard and decided that matter, we may then~ depending on the oLltcome, hear the merits of the matter in di spLlte. Given the discharge letter, and the reasons set out therein, we are of the view that this case can be c:onveniently split in the manner just described, and that there is no prejudic:e to the union or grievor in doing so. n (page 16) Section 1( 1) (f) (vi) of the Crown Employees Collective Barqaininq - Act, as it read at the ti me material to this proceeding, provides the following definition of employee: (f) "employee" means a Crown employee as defined in the Pub li c Service Act but does not include, . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II: . (vi) a person not ordinarily required to work more than one-third of the normal period for persons performing similar work except where the person works on a regular and cont i nLli ng basis, . . . . . . .. . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . In this statutory conte)t, the initial issue is whether the grievor worked more or less "than one-third of the normal period for persons performing similar work" If the amount of work performed e:.: ceeded the aforementioned threshold, then the grievor must be considered as an employee for purposes of the legislation. If, on the other hand, the work I , . ! r ' I , I I " - 2 - I did not reach the threshold~ this Board must stlll determine whether thel e::ception to the e::clusion is appli.cable Fut another way, we must deCidej whether the gr-i evor wor-ked as a fl~eel ance COLlrt Moni tor- "on a r-egul ar and 'I continuing basis" If this qLlestion is answered in the affirmative, thE, gr-ievor- will be captur-ed by the definition of employee notwithstanding she II may not ordinar-ily have worked mOI~ Ethan one-third of the nOI~mal per-iod I for persons performing 51 mi 1 ar wOl~k. i , , I Before turning to the evidence, t h er e is one (1) award of the Ontarich rJ Public Servi ce LaboLlr Relations Tribunal that merits some comment. I ! OOPS, Ontari 0 Union Of Court Reporters and Ministry of the At torne\~ unreported T/0064/84, T/0018/86 II General ( 1988) , (F' c. Picher) the Tribunal II had to determine the employment status of f reel ancs c:oLlrt reporters. Ir! that instance, the parties agreed that sLlC:h reporters could be divideb I , into the following three c:) groLlps 1 Freelance reporters that do work e: elusively for the Ministry; ! ..., Freelance reporters that, with the permission of the Ministry, - I ..:.. ma~: e thei r services available to clients other than the Mi n i stry,~ and !" , I - , - Freelance reporters that freely make their services available to other clients. I i i The Tr"ibunal. on the evidence presented, concluded generally that all df " II the three (3) groups of freelance court reporters were employees and nJt independent contractors. In so doing. it utilized the several tests whiJh are routinely employed to disti~9UiSh employees from independeJt II contractors The TribLlnal reserved on the question I as to whether specific I I freelance repol~ters mi ght fall outside the definition of employee aSia consequence of section 1(1) (f) (vi> In this regard, the award states "It may be that some of the individuals will be excluded from I j , II - -~- - 3 - employee status under C E C.B A by virtue 0+ the application of section l(l)(f)(vi} of the Act which stipulates that an employee Lln del'" the Act does not include "a person not ordinarily required to wor~ more than one third of the normal period fOI~ persons performing similar work e}:cept where the person wor~s on a regular and continuing basis " As noted above, however, the parties have agreed to PLlt aside the issue of potential e cl LISi on based on the applicc\tion of section 1 (1) (f) (vi.) for the purposes of the instant determination of employee status which has been therefore based on the premise that they work "somewhat less than full time" Issues of how mLlch less than f LIll time in any i nd i vi dLlal situation and the applicability of section l(1)(f}(vi) may be subsequently addressed by the parties on a case by ~ase basis. II (page 17) For purposes of this interim Award, the Board does not distinguish between Court Monitors and Court Reporters. We recognize, however, that these two (2) groups of employees record the evidence through the use of different technology and that there is a variance in the respective wage I~at.es. These differences are not material to the resolution of this dispute The grievor was the sole witness to give evidence on behalf of - the Union. She commenced her employment as a freelance, or fee for sel~vi ce, COLlrt Moni tor in the Provincial Court, General Division, in Kingston, Ontario in ALlgLISt 1990. By letter of June 15, 1992, the grievor was advised that her court repor.ti ng services would no longer be reqLli red The material part of the letter of Mr F\ Beaudoin, Regional Director, East Regi. on, Courts Administration, reads "This letter is to advise you that effective today, YOUI"" court repoJ""ti ng services are no longer required by the Ministry of the Attorney' General in the county of Frontenac Due to other commitments resulting f I~om a I~ecent dispute settlement, r-eguIar COL\I~t repol~t i ng work is no 1 anger available to you Notwithstanding this and more significantly, in the Breen et al hearing on June 10th, 1992, YOLI testi f i ed under oath that YOLl I~emo\led documents f '~om cOLlrt files and pr-ovi ded them to a third party for LIse I I - 4 - unrelated to your business or to the business of the Mlnistry As YOll YOLlrself acknowledged~ this is highly i mpl~opeJ~. Had you been a civil servant, you would be facing severe disclplinary sanctions not e cluding dismissal for what must be consj, dered a serioLls breach of office secl~ecy and the unauthorized removal of court documents." (e:, hi bit 1 ) A gl~ i evance dated June 30, 1992 was subsequently filed The grievor I alleged therein that she had been dismissed wi thOLlt just caLIse Shel , , asked, inter alia, to be reinstated to the full duties of her former ,i I position and to be reimbursed for any and all losses occasioned by thel Employer's actions. for the Employer Dianne Aziz, I Evidence was presented through Ms. the' I Services Manager respect of Frontenac County. I Court in Ms. Aziz hasll occupied this position since November 1990. As Court Servi ces Manager ~ ~. I she was ultimately responsible for the administration of court II reportingr ! i services in the Courts within her area II Broa.dly spea.king, the grievor had two (2) core responsibilities as ail Monitor Fil~stly, she attended - I Court in COLlrt, or at e~.: ami nat ions for': I I discovery~ for purposes of recording and monitoring the proceedings I' I Appro: imately two-thirds of her time was spent in Court with the balanc~ being devoted to discoveries Secondly, the grievor was required t~ prepare transcripts at the request of a Judge, the Ministry of th~ Attorney General or a private litigant. A considerable amount of eVidencJ was led in respect of each of these tas~s The grievor testified that she mainly worked wi th JLldge Campbell . I 1n II the Provincial Court, General Division, on non-jury cases in respect of I I I bott-I civil and criminal matters. It was the thrust of her evidence that she was expected to give top priority to the work generated by that COLlrt I I -.- II . - 5 - The gl~ievor indic:ated that, on oc:c:asion, she WOLll d worl: in other COLlrts in . i ngston and in the surrounding ar'ea if her servic:es were not needed in the General Division. She stated that, before ac:c:epting ot h er assignments, she would c:hec:k to ensure she was not required in the Genel~al Division At the time material to this proc:eeding, there were no full.-tirne c:lassified Court Monitors or Court Reporters working in the F'rovi nci a1 Court, General Division. Instead, court repol~ting services were provided by freelance, or fee for service, Court Monitors. This was contrasted with the C,""i mi nal and Family Divisions which each had one (1) full-time Court Reporter on complement. Ms Aziz and her staff had a list of appro). i matel y twelve ( 12) Court Monitors, including the grievor and a Ms Sylvia Smith, who would be called in as required for court repol~ting. The evidence of the grievor and Ms Aziz did not differ materially with respect to the frequency of court reporting assignments in the Provincial - Court, General Division. Both, Lll ti matel y, agreed that Ms. Smith was the first person to be c;:alled in. Apparently, Ms Smith was senior to the other reporters whose names were on the li st. Further, both agreed that the grievor was called in with the ne>:t greatest frequency Ms Aziz!, however' , asserted that Ms Donna Knapp was "close to" the grievor in terms of the number of assignments. This assertion was contested by the grievor. The grievor testified she generally received between one (1) and three ( :::; ) weel: s notice that her services were required She claimed that she always made herself available to the Provinc:ial COLlrt, Genel~al Division It was her evidence that she "always" had work in that Court - 6 - , I Similarly~ she stated that she could "always depend" on the Ministry ofl the Attorney General for "regula.... wor~" In the g....ievo.... s wOt-ds ~ it wasl I he.... "main of income and work" This 1 at te.... claim was disputed I source bY) Ms. Aziz. The Cou....t Se....vices Manage.... maintained that the g....ievo.... could I not be assured of ....egLll a.... wo.... ~ with the Ministry in the period ....elevant td II this case. I As stated, the grievor was responsible for the preparation Oil t....anscripts when requested by a Judge, a representative of the Mi ni stry o-fi' I the Attorney General, or by a private litigant. In the first two (:2 )~ I " instances, the cost of the transcript was borne by the Employer on a cosii:. I I per page basis pursLlant to a fee schedule established by the MinistryJ I Where the transc....ipt was requested by a private litigant, the cost of I same Th . II was borne by that pa....ty acco....ding to the same fee schedule. e grlevol estimated that a transcript o....dered in 5i tv-five percent was (65;') of hef I She broke this. down further by indicating that sixty percent I cases. ( 611~~ ; of the requests were from private litigants with the balance coming ~ ~ II from Sh! Judges or rep....esentatives of the Crown The grievor testified that Msl could not refuse to prepare a transcript if one was sought Indeed. Aziz ac~nowledged that "preparing transcripts is necessary to satisf~ th! job requirements" Ms Aziz added that the requirement to produce ~ transc....ipt went with the job of being a Court Reporter regardless of Wh~ ordered the transcript The g....ievo.... advised that she p....epared all I t....ansc....ipts at home on he.... own time She noted that Ministry eqLli pmenti and in pa....ti CLll a.... a transcriber, was Llsed for this pu....pose I I I Two (2) othe.... aspects of the grievor s work need to be mentioned. I Firstly, if her wor~: assignment was cancelled without forty-eight (481) ! --~_.- I, I - 7 - hours p I~ i or notice~ she was entitled to charge a cancellation fee o.f appro:. i matel y fort y dollars ($40 ClU) The grievor ad nowl edged that she did not engage in COLlrt work on a cancelled day. She maintained~ however~ that sLlch a day would have been committed to the Employer in the sense she would have been ready and available to work but for the cancellation. Secondly~ the grievor was permitted to charge "a mi ni mLlm" of three (3 ) hours at the hOLlrly rate if she arrived at Court and the schedLII ed case, did not go ah ead or if less than three ( 3) h O~lIr" S alternate work was provided The grievor was required to complete a Daily Attendance Register to docLlment her daily charges The fdrm shows, inter alia, Total Attendance Time, Total Billable Time, and Cancellation Charge Where 48 HOLlrs Notice Not Given The data shown on the Daily Attendance Register was subseqLlentl y transfel~red onto an Invoice For Personal Sel~vi ce This form I 1 i sts the work performed, ti me e:.:pended, and amount claimed over a longer ~ period of time such as two (2) weeks or one ( 1 ) month. Both of the aforementioned documents were signed by both the claimant and a sLlpervi sor. This Board was provided with most of the Invoices For Personal Service, and some of the Daily Attendance Registers, for the period her'e in question. These wel~e filed with LIS as e: hibit 5 A considerable amount of statistical data was filed by the parties pertaining to the grievor s work pattern over the Al..lgl..lst 199u to June 1992 period This evidence may be summarized as follows (i) A SLlmmary of HOLlrs Worked was prepared by Ms Aziz. This docLlment, which was filed as e hibit 6, was premised on the i. nfor'mc\ti on contained in the Daily Attendance F\egisters and the InVOlces For Fel~SDnal , I I I - 8 - Service completed in respect of the gl~ievor s wor ~ The summary provides a breakdown of hOLlrs under the following headings: (i) hours billed/paid per invoice; (i i> grievor s record of hOLlrs bi 11 ed; and (Ui> hOLlrs I CalCL\lations~1 billed/paid for cancellation charges. Ms A.:iz, in her 1/ isolated the nLlmber of months in which the grievor worked in e cess ofl fifty-two (52) hOLlJ~s. She determined that the grievor e::ceeded thatl l' I threshold in only si ( 6) of twenty-two (22) months over her period of! ,I employment. Counsel for the Employer noted that the ratio increased tol seven (7) of twenty-two (22) months if the grievor's figures wer~' I utilized. He indicated that he was content to LIse her record of hoursl I billed in view of the minimal difference involved. Both the grievor"s and I , I the Employer"s record of hours _bi 11 ed incorporated billings for cancelleq I I days I In preparing this sL\mmary~ the Employer relied I on the approach ta~en I by the Ontario Public Service Labour Relations Tribunal in OPSEU <81 ythe)j -II and Manaqement Boal~d Of Cabinet~ T/5/83 (Shime). In that instance, thJ thJ Tribunal noted that for the purposes of collective bargaining, II following persons were considered to be employees within the conte:: t of I section l(i)(f)(vi) of the Crown Employees Collective Baraainina Act: I I (a) persons who wor~ more than thirteen (1:-) hours per week;; and I (b) persons who work a regular and continuing basis for thirteen I. on ,I ( 13) hOLlrs per week or less I I I I The Tribunal described this approach as "the rule of thumb by wt-,i ch the I parties have operated"; I E hibit 9 was prepared by the grievor It provides a record of I I (i i) heil billings for reporting, cancellations and minimums over the period of he~ I I I Ii I employment with the Ministry Of The Attorney General. It appears that th~ II I I :' I, , ,i . - 9 - Emp 1 oyer- utili.::ed the figures contained therein in determining the Grievor s Record of Hours Billed for pLlrposes of e:. hi bit 6 A review of e:.( hi bit 9 discloses that the gl""ievol"" I"" ecol"" ded two hundl""ed and nineteen (219) days of COLll""t reporti ng and thirty-si (36) cancellations in the period material to this dispute It is likely that the days I""ecorded as "reporting" included days for which the thl""ee (3) houl"" minimum was paid The data contained i ne:.:hi bi t 9 is substantially similal"" to the figures found in the Daily Attendance Registers and Invoices FOI"" Personal Sel""vice as collected in e:.:hi bi t 5; (iii) ENhibit 10 was prepared by the grievor. It provides her recol""d of the days on which she engaged in court reporting The dates shown on the face of the e hibit total two hundred and forty-eight (248) days It is apparent that this figure includes cancellation dates. In discussing the number of days wOl""ked, the grievor stated that there were fewer sittings of Court between mid-June to mid-August. She also advised that the COUl""t ~ did not sit over the Christmas to New Years period Additionally, the grievor isolated the blocks of time which she used for vacation Her vacation time totalled thirteen ( 13) weeks over the twenty-two <:12) month per-iod She fLll""ther identified time in which she was unavailable for COLIr-t reporting given that such time was required for the preparation of transcripts; (i v) E:.: hi bit 11, which was also prepared by the grievor, lists transcripts produced for private litigants The grievor testified that if tl~anscript preparation was included as time worked, she would have worked appro: imately si ty (60) hours per week ovel"" the period here in issue. As noted above, section l(1)(f)(vi) of the Crown Employees Collective - 10 - Barqaininq Act e cludes from emp 1 oyee .status "a person not ordinari~y 1 l~eqLli red to work mor-e than one-thir-d of the nor-mal per-iad for- I per-sors I per-forming similar- wor- k . " The language descr-ibing this e~. c 1 Llsi on II . r-aises tle the issue as to which gr OLlp of employees should be consider-ed as thlt r-elevant comparator. In this r-egar-d, both par-ties seemed to agr-ee II the comparison should be made to full-time COLlr-t Monitors who are pal~t s.f !I classified complement. The Union opening ar-gument the in its r-efer-enced II appr-opr-iate comparator. COLtnsel for the Union this gr-oup as the entel~ed I the position specification for COLlr- t Monitor And Office Cler-k into I evidence a s e~.: h i bit 7 dur-ing the cr-oss-examination of Ms. Aziz. E~hibitl7 i is, in substance, a generic job description for the classified COLlit thlt Monitors. Similar-Iy, the Employer- in its opening argument submitted II full-time Court Reporter-s wer-e the proper- comparator gr-oup Ms Aziz II testified that, sLlbject to cel~tai n limited e:.:cepti ons, the gr-ievlDr- - I gener-ally per-for-med the same duties as the classified COLlr-t Reporters I I - if The Position Specification and Class Allocation f or- m in r-espect II the Court Monitor- And Office Clerk (e>:hi bi t 7) is appended to this Awar-tl II The form sets out two (2) major- groups of duties and related tasks in paragraph three (3) thereof. These are, firstl" the provision of cou~t repor-ting ser-vices in assigned courts and, secondly, the per-formance bf clerical and typing ser-vices related to the operation of the Court OffiCl These primary duties 'occupy seventy percent (70'l) and thirty perce~t I (::;01.), respectively, of the time of the classified staff The Boar-r' after comparing the grievor s job to the position specification, mafes tte following findings: 1. We are satisfied, on the evidence, that the grievor per-for-med the duties r-elating to the provision of COLlr-t r-epor-ting ser-vice~ .1 I i I I - 11 - The only task which the grievor denied performing was that described ne)t to the seventh bullet point as "arr-anging for services of free-l ance COUl"'t reporter (5) when required because of two courts sitting C\t the same time;" and ~ We are also satisfied that from ear'ly 1991 onwards~ the grievor ..:... did not engage in clerical and typing services in respect of the Court Office. The grievor did perform these tasks briefly in late 1990. Ms. Aziz testified that Ms Chamaillard was not assigned SLICh dLlties after early 1991 The grievor did not dispute/this assertion Indeed, she acknowledged that subsequent to early 1991, she would be sent home and paid the three (3) hOLlr mi, ni mum if reporting-monitoring wor~ was not available at the Court. Pri or to that point, she WOLll d perform clerical duties to fill in the three ( 3) hour period The Union submitted that the grievor exceeded the one-third threshold established by section 1(1)(f)(vU of the Crown Employees Collective Barqaininq Act. We were asked to focus on the \lover all pi ctLlre" of the grievor s employment. In this regard, counsel argued that Ms. Chamaillard "provided court reporting services, week-in and week-oLlt, for twenty-two months less holidays and occasional weeks when work was not pl~ovi ded II Counsel asked further that we review the grievor s employment on a weekly - basis He stated that~ e>:cl LISi ve of vacation pel~i ods, there were eighty (eO) weeks of employment in the period AugLISt 1990 to June 1992. On his eal eLII ati ons, the grievor worked more than thirteen ( 13) hours in forty- two (42) of those weeks. Put another way, cOLlnsel argued that the grievor met the statutory test in a majol""ity of the wee~: s wor~ed Similarly, he submitted that the grievor wor~ed on a majority of the days on which the COLII~t could sit He noted, on the basis of e:,:hi bi t 10, that she worked on two hundred and forty-seven (247) of a possible fOLlr hundred and eight (4uB) days Counsel acknowledged that both the weekly and daily calculations included cancelled days It was the position of the Union that cancelled days; days for which the minimum amount was paid; and time I I I - 12 - II I spent in the preparation of transcripts ShOlll d all be considered inl I determining whether the gr-ievor met the statutory thr-eshold II I In response, the Employer- claim~d that the grievor was caught by thd exclusion contained in section 1(1) (f) (vi) of th~ Crown EmPloveeJ Collective Baroainino Act. More specifically, cOLlnsel sLlbmi tted that thJ I grievor was "a person not ordinarily required to work more than one-thin: I of the normal period for persons performing similar work. II In thi~ . II regard, he relied on the data contained in e}.: h i bit 6. Counsel emphasIzed II that, even if the grievor s figures were used, there w~re only seven (7: I, out of twenty-two (22) months in which she e>:ceeded the fifty-two (52) mark in terms of hours wor~~ed in a month. II hour We were asked to conclude that this ratio would be further reduced if cancelled days and days fO~ II which the minimum was paid were factored out of the calculation. Indeed~ it was the Employer s position that such days, and time taken tb ,I prepare II I transcripts, should not be considered in the overall assessment as tb I - l whether the grievor was an employee for purposes of the statute. I I The Board is prepared to accept and utilize the thirteen (13) hour thJ!t threshold provided for by the award in Blythe We think it material I parties structured their submissions on the basis of I both this threshold. I I The Union did not sLlggest that the thirteen (13) hour I eve 1 ShOLll d lje th 1 . f' lid reduced given the fact that fLlll-time Court Moni tors in e c aSSl Ie t" d . ~ ser-vice spend only seventy percent <701.) of their lme engage In W01k related to court l~epol~ti ng As noted earl i el~, appr-o>imately thir~y percent <301.) of thei r job involves clerical duti es. I ! The Board is satisfied that days in respect of which the mi ni mtllm amOLlnt paid should be part of the assessment required in this II was case I , I , - 13 - Clearly, the grievor committed those days to the Ministry of the Attorney General More importantly~ and unlike the situation vis .a vi s cancel I ed days~ the grievor actually reported for worh and may have~ in fact~ engaged in some work once there Indeed, she would ordinarily have been e~.: pected to work for a longer period bLlt for a "folded list" , an adjoLlrnment, a plea, or some similar reason As we were not provided with a firm record of the time actually worked on these days, the Boal'-d is prepared to accept the three (3) hour period, for which the minimum payment was provided, as an appropriate measure for purposes of the calculation required in this instance. Conversely, we do not think that cancellations should be treated as time worked. While the grievor may initially have committed herself to the Employer in respect of those days, she did not, Lll ti matel y, have to attend at court. In her evidence, the gl~ i evor acknowledged that she did not engage in court work on a cancelled day. In the final analysis, the Board considers that it would be wrong to ~ equate cancelled days with time worked in the context of section l(1)(f)(vi>. To repeat, unlike days for which the minimum was paid, the gri evor- did not attend at work. The cancellation fee was paid on the basis of the absence of at least forty-eight (48) hours notice and was not premised on her attendance at court. The comparison process, which we are reqLli red to engage inhere, is rendel~ed difficult by virtue of the fact that full-time Court Monitors in the classified service are not entitled to either a cancellation fee or a minimum payment if repol~ting work is unavailable In that scenario, they perform the clerical duties referenced in the position specification. It is clear that the aforementioned entitlements apply e:.:clusively to the - 14 - freelance COLll~ t Repol~ters and Court Monitors I The position specification ( e~: h i bit 7) states that classified Couri: 'd I Monitors must transcl~i pts "on incumbents own time". It prepare provl es. 'I howeveJ~ , that "i n ceptional circumstances, with cOLlrt and ' , t I e mlnlS r)' 1 proceeding dLlri ng f. I approval, incumbent may type transcripts of court of lce II hOLlrs" . grievor's that the direction to It was the evidence type Sh! transcripts at home was not adhered to by other Court Reporters. 11 stated that Ms Aziz compelled to reiterate to full-time was reporters !I that transcripts were to be prepared at h orne. The gri.evor indicated that II Ms so doing, was trying to eliminate the practice of Aziz, in "dsuble thl billing". She acknowledged that a memo had been forwarded -from t' il Ministry to Court Reporters and Moni tors to remind them that SLICh pl~ac 1 ce 7 to thl should not OCCLlr. Given the clear direction contained in e::hibit thl effect that transcripts are to be prepared on the Monitor sown time, thb Board is not inclined to factor this aspect of the work into - - [ comparison. We note, in this regard, that there is no evidence before us transcripts I as to the time spent by full-time staff in the preparation of I As previ OLISl y stated, e~,: h i bit 6 pl~ovi des a "Summary Of Hours Wor~ edi" cal CLll ated monthly basis. utilizing the grievor s record, she II on a wor ke.d I I mOI~e than fifty-two (52) hours in only seven (7 ) of twenty-two (22) montHs I I of employment The Board has little difficultly in concluding that, on ia I monthly comparison, the grievor was not ol~di nari 1 y requi I~ed to wor~ mo~e than one-third of the normal period for persons performing similal~ il work:. The Union, as noted, also referenced the weekly pat tel~n o'f the grievor' s employment. On its calculation, the gl~ i evor ceeded the I e statutolY threshold in forty-two (42) of eighty (811) wee~s. The Board has carefull1y I - 15 - reviewed the contents of e hi.bit 9 We conclude~ from an e amination of same~ that if payment for cancelled days was factored out of the calculation there would be at least nine (9 ) fewer wee~s in which the gr' i evor met the threshold. The removal of the cancelled days 1 ead s directly to the concl LISi on that the grievor e ceeded thirteen ( 13) hours of work per wee~ in less than one-half of the weeks WOI~ ked Viewed fl~om this perspective, we are not satisfied that she "ordinarily" attained the 1 evel contemplated by section 1(1) (f) (vi> of the Crown Employees ~ective BarClaininCl Act Finally, the Board has been persuaded that little tLlrns on the record of days worked, vis a vis this branch of the test, as it does not provide much indication of the amount of time actually spent in court monitoring. For all of these reasons, we find that the grievor was a person not ordinarily required to work more than one-third of the normal period for fLlll-ti me COLlr t Monitors in the classified service - The Union sLlbmi tted, as a secondary position, that the grievor fell within the e ceptic;m to the statutory exclusion as she worked on a "regular and continuing basis" for purposes of section 1 (1)(f) (vi> . Counsel argued that the e>: cepti on contemplates employees who may work less than one-third of "regLllar hOLlrs" and that it recognizes a more marginal ne::LlS between the employee and the employer Counsel maintained that Ms Chamaillard satisfied this alternate test as she was called in to wor~, weel. -i n and week-out, over a period of some twenty-two (22) months subject to vacations and times when the court did not sit. He noted that this connection to the Employer was enhanced by the time the grievor spent in the preparation o.f tr- anscr i pts Counsel further sLlbmi tted that it was - 16 - irrelevant that the gr i evol~ was called into work on an as required basi s.1 1 He suggested that this employment pattern did not precl Llde a finding of. I 1 employee status as evidenced by the Tribunal decision cited on page twe. il (2) of this Award. Simply put, it the Union assertion that was s c;\ ! I pattern of call-i n employment could be consistent with regLll ar employment 1 I Lastly, counsel argued that the gl~i evor worked continuous basis I, on a ove1i I the period in issue He argued that this pattern would have continued bLI': I for the Employer s decision to sever the employment relationship. In response, the Employer sLlbmi tted that the grievor did not work 011 1 I a regular and continuing basis for purposes of section l(1)(f)(vi)~ f . d. il Reference was made to the following awards for purposes 0 provl ln~ meaning to the words "regular" and "continuing": F.e United steelworkerst ,I Local 5141 And F.avbestos-Manhatten (Canada) Ltd. ( 1965) , 16 L.A.C. 17~ II I (Anderson) ; Abrahams And The Attorney General Of Canada, ( 1 983 ) 1 S C. F.l. I, ..,. Re Salvation Army Grace Hospital And Ontario Public Service -, Emp 1 oyee,s - -II Union. Local 142 ( 1 987) , 31 L.A.C. (3d) 1 (Brandt>; Standard Commerci alii. I Tobacco Co. And Canadian Union Of OperatinCl EnClineers And General Worker!s et-El. ( 1988) , 31 O.A.C. 74 (ant. Div. Ct. ) ; Re Brown And Social Assi stanciL i F.eview Board ( 1978) , 18 o R. (2d) 405 (ant Div Ct ) . In I sLlmmary:, counsel argLled that the grievor~s employment not regular 1 was and I I conti nUOLlS because: i I (i) the hours of wor~ were i rregL\1 ar in the sense that her hours o.f work did not recur uniformly according to a predictable time and manner It was noted that even in busy periods, there were some wee~s in respect of which the gl~i evor wor~ed very few houl~s; (i i) the hours of wor~ lac~ed regularity given the fact the grievol~ was called in as r,eeded Counsel described her work as "casual" and "intermittent"; (iii> the period here in i SSLle did not represent a state of uninterrupte~ I I I I .-- . " - 17 - employment Rather, the grievor was in a position to, and did in .f act, take time off as and when she desired In addressing this aspect of the case, the Board has had I~egard to the monthly and weekly pattern of employment discussed above. We have al so r-evi ewed and compared the data found in e hibits 5 and 9. This data may be summarized in chart form as follows Days Worked (IncludinQ Minimums) Days Cancelled E}.~5 E>:9 E:.5 E:.:9 1990 Al.lg LIS t 1 1 - - September 5 5 6 5 October 14 14 2 2 November 19 19 1 1 December 9 9 4 4 1991 January 10 10 1 1 February 8 8 1 1 March Missing Complete Record 12 - 1 April 11 11 1 1 May 2 2 - - June 6 6 "') 2 - .... July 9 9 - - ALlgust 10 10 2 .., .... September 12 12 ..,. 3 ..;. October 13 1'" 5 5 ,.,;. November 15 15 1 1 December 8 8 1 1 1992 January 6 6 1 1 Febl~Llary 18 20 "') .., .... .... March 9 9 - - April 6 6 1 1 May 12 12 - - June 2 2 .., 2 .... Totals 2n5 219 36 36 . J . - 18 - Average Days Wor~ed Per Month Ovel~ 22 Month Feriod 9. ::::~ ~"95 Average Days Worked Fer Mont.h Over' :21 Months E cluding August 1990 and June 1992 9.76 10.43 The above record of days worked includes the days for which the mi ni mLtm payment was received. It e>:clLtdes, and separately tracks, cancelled days It is apparent to the Board that, SLtbj ect to vacations and times when the Court did not sit, the grievor regularly worked a significant number of days each month. E>:cluding the first and last: i months of her employment, the grievor worked at Court appro>imately ten! I ( 10) days per month on average across the period here being considered I , , We thin~ that this record reflects a regular and recurring pattern of wor~ I rather than casLlal, intermittent or sporadic employment The Board I is, I inclined to accept the Union s submission that this history is evidence of1 I a substantial attachment between the grievor and the Employer. I n our: - I judgment, it does not matter that the grievor received her hours on an as) needed basis. F-ather, what is more important is the pattern of emPloymentl which emerged from the call-ins. Further, the Board is satisfied that thel I grievor acted as a Court Monitor on a continuing basis from August 1990 to I June 1992 Any interruptions in her work pattern were primarily ~ I function of vacations and periods when the Court was not in operation. Iri II summary, the Board has been persLladed that Ms Chamaillard worked as c, , i freelance Court Monitor on both a regular and a continuing basi s. W~ I think thel~e is some merit to the Union sLlggesti on that I s the statutor~ I e ception should not be accorded an e::cessi vel y restri cti ve i nterpretati o~ in view of the fact it contemplates persons who may work less thaJ II I / II &' ... - 19 - thirteen ( 13) hour's per week The grievor, in cross-e: ami nation, acknowledged that she was the sole proprietor of G r. A heporting in the period material to this dispute Her business had an office in I<ingston and I"eporti ng services were offered from that location. The grievor had other persons on staff at that si. te The grievor testified that her business did not provide ser'vi ces to the Ministry Of The Attorney General in the form of her work in the General Division Ultimately, it is that work and the conditions under which it was pe,"formed that is relevant to the i SSLle before this Board. This assessment is consistent with the reasoning of the Tribunal as f OLlnd between pages fourteen (14) and seventeen ( 17) of the previously cited decision Prior to commencing employment with the Ministry, the grievor worked as a full-time COI"recti onal Officer at the Vingston Penitentiary. She earned in e::cess of $40,000.00 per year at that job. The grievor asser"ted - that she was assured she would have continuous and on-going work as a COLlrt F.eporter. It was her evidence that wi thOL\t such an assurance, she would not have left her former position. She acknowl~dged that her hL\sband also wor~ed at the same Penitentiary and that she preferred not to wor~ along side with him at that location In OLlr judgment, this case cannot be decided on the somewhat vague assurances alleged Instead, it must be resolved on more reliable evidence, particularly that reI cEt.t i ng to the natLlre of the grievor s work as a COLlrt Moni tor in the General Division. There were a number of discrepancies between the evidence of the grievor and that presented by Ms Aziz. After considering all of the !I I . . - 20 - evidence, we conclude that the conflicts are neither substantial norl material to the point in issue The Board is satisfied that this aspect I I of the dispute is not resolvable on ~he basis of these eVidentiar~ I differences nor on considerations of credibility I For all of the above reasons. the Board finds that the grievor worked . I as a freelance Court Monitor on a regular and continuing basis over thJ I period of her employment in the General Division. It follows that she1 therefore, falls within the definition of "employee" as fOLlnd in sectior I I 1(1) (f) of the Crown Employees Collective BarQaininQ Act and, thereby, has the status to grieve the Employer~s actions as contained in Mr Beaudoin~J letter of June 15, 1992. Dated at Windsor, Ontario this 24th day of October, 1995. fy{) J LJ:r:rt;; ~ M.V. ~ "I Dissent" (dissent F Collict, Member I I i I I ~ ..~ ~ I J) ISSENT Re G S B # 124()!Y2 (CHAMAILLARD) Thl'\ Member IS In agreement with the Board to the effel:t that" the gnevor wa:-. a per:-.on not ordlllunly required to work more than one-thrrd of the normal penod for full-tIme Court MOnItors III the dassIfied servll:e" (p 15 of award), and that on thIS basIs the gnevor was not found to be an "employee" withIn the meaning of Sel:tIon I (I) (f) (VI) of CECBA. However, this Member does not support the findIng of the Board that the grievor was found to be an "employee" within the language of SectIOn I (I) (f) (v,i) of CECBA on the basis that" the gnevor worked as a freelance Court Monitor on a regular and contInuIng basIs over the penod of I her employment." (p 20 of award.) I In the opimon of this Member, the grievor could not be found to have worked on a regular and I contmmng basIs for the followmg reasons. I 1 The gnevor worked for the Mmlstry from August 1490 to June 1992, a penod of - I approxunately 22 months. (a) Dunng this penod the gnevor took a total of 13 weeks of vacation. At best. a regular employee trught have had somethIng less than one half this amount of vacatIon over the same penod. (b) In l:ross exammatlOn, the grievor agreed that she llked freelance reportIng because she could take time off as she pleased. In tills respect she took off a penod of five weeks when she was mamed. It is certainly questionable as to whether an "employee" of the Ministry with approximately only one year of service would have been entItled to the time off taken by the gnevor - I . . ~ , ') (c) The te:-.tllllony of the gnevor wa:-. that ...he told the "cheduler when "he d not be avaliJble. For example ...he "tated that SylVIJ Smith (another freelance Court MonItor) would be reL:Orded as bemg "down east" (pre~umably on vacatIon) and that she (the grIevor) would tell the "cheduler when she would take holiday.... 2. With reference to her availabIlity, the gnevor stated that, (a) her hours of work vaned greatly; (b) she agreed that she was called in to work on an "as reqUIred" baSIS, (c) she stated that on one occasIOn she was not aVaIlable to work for the MinIstry because she took off a penod of two weeks for the purpose of prepanng seven to eIght volumes of transcnpts for a crown attorney m Toronto 3 As per the testimony of Ms. ChamaIllard, she operated "G-K Reportmg ServIces", her - own mdependent busmess, for approxImately 18 months pnor to her tenmnatlOn in June of 1992. In that sense, she was an "mdependent contractor", and, therefore, dId not fall into anyone of the three groups IdentIfied m the M. PicheI' award (see page 2 of this award) Clearly the grievor dId not fall into group I as IdentIfied by M. Plcher Sllrularly, she dId not fall mto group 2, because It excluded court reporters who were" carrymg I on mdependent bUSinesses of therr own. " il Also, the gnevor does not fall mto group 3 because Ms. Chama1l1ard was llQj requrred - i I certamly for the penod of Jan. '91 to June '':)2 (approximately 18 out of 22 months of employment), - " to do the clencal duties of other employees to fill m tIme If the need for court reportmg servIces IS cancelled wIthout suffiCIent notice" (p 16 of PICHER award.) i i ! II . :o- r 1 4 FinJlly thl" Member I" not 111 Jgreement with tlm Board" finclll1g that M..... ChJmaJllard L" an employee" wlthll1 the meal1lng of CECBA becJu"e she worked "... on u regular and contll1111n~ ba....I....". bel-au....e, (a) As stated earlIer the gnevor agreed 111 testImony that she was only called 111 on an "as reqUlrecl baSIS, and that her hours vaned greatly (b) The chart on page 17 of the award may indicate that the gnevor had a pattern of employment that averaged work at the court of approxunately 10 days per month However It should be noted that thiS average" of days worked mduded days for whIch the nunimum payment was rece~ved" (p 18 of award) That IS, for a total of three hours. Also, It must be recogmzed that dunng 10 of these months the gnevor worked less than 10 days per month, rangmg from two to mne days per month. Although these data may IndIcate that thIs" is evidence of a substanual attachment between the grIevor and the employer" (p 18 of award), tlus Member would condude that thIS eVidence falls short of meetmg the standard of "regular and contInuous" work as reqUlred In CECBA. - 5 The JUrIsprudence concermng the Interpretation of the words regular and contInUOUS are somewhat helpful 111 reaclung a final posIuon concermng the above. (a) In USW and Raybestos Manhatten (Canada) Ltd, (L.A.c., vol. 16 P 132) It was stated that, "Regular" has a meanmg whIch in some circumstances means reCUrrIng umformly acwrdmg to a predIctable tIme and manner " (undersconng added) (b) Surularly, m Denms Abrahams (l9X3 S C.R.) at page 8, regularity IS charactenzed (' ~ .. ~ I I -+ <1:-' J tl xed p,lttern I or a rq;ulanty of the \\ ork :->I...hedule." I I ! (L.) In Vanl...ouver General HO'ipltal (31 L.A.c. (3d.) at page 10 regulJr I.., detll1ed J.., , i "reLUlTlI1g ul1Jformly accordlllg to a predictable tllne and manner (d) ContJl1uou:-" 111 Brown and SOCIal A'islstance Review Board (I X 0 R. 2d) p -+ 15 I~ I referred to as "contlllUIty wIthout tnterruptlOn" I I I I I (e) In consIderatIOn of the above junsprudence In relatIOn to the work pattern of the I gnevor as set out at pages 17 and 1 g of the award, thIS Member would conclude that the gnevor did not work a regular. fixed pattern of days or hours In ! accordance WIth a predIctable tlIne and manner. Moreover, although the " ,I assIgnment of work was contmuous 111 the sense that Ms. Chammllard ~ be called 111 for work, It IS abundantly clear that she was called only on an lI1tennlttent basIs or, as she herself testified, on an as requITed basIs " - In VIew of all of the above, thIS Member yrould have upheld the employer's posInon to the effect that the gnevor does not meet the defimtlOn of employee as set out 1I1 sectIOn 1 (1) (D (vI) of CECBA i I 1 i gq~ F T Collict tte,.112/.9~- , I I I ------ I .