HomeMy WebLinkAbout1992-2749.Kuzior.94-01-07
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180 DUNDAS STREET WEST TORONTO, ONTARIO, M5G 1Z8 SUITE2100 TELEPHONE/TELEPHONE
180, RUE DUNDAS OUEST TORONTO, (ONTARIO) M5G 1Z8 BUREAU 2100 (416) 598-0688
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2749/92
IN THE MATTER OF AN ARBITRATION I
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
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Before j
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN-
OPSEU (Kuzior)
Grievor I
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- and -
The Crown in Right of OntArio
(Ministry of Health)
Employer i
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Before J_H. Devlin, Vice Chairperson
For the Grievor Jim Gilbert
Grievance Officer
Ontario Public Service Employees Union
For the Employer: Briane Doherty
Staff Relations Officer
Management Board Secretariat
Hearing December 15, 1993
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In this case, the Grievor, Judy Kuzior, claims that the
Employer has improperly calculated her continuous service date
The Grievor commenced employment as an unclassified
Cleaner 2 at the Lakehead Psychiatric Hospital on June 1, 1984,
working 24 hour per week. On January 1, 1986, she was appointed
to the classified service as a regular part-time Cleaner 2,
working 16 hours per week In November of 1988, the Grievor
became aware that the Employer intended to fill an unclassified
Cleaner 2 position involving 40 hours per week. As the Grievor
was then experiencing significant financial difficulties, she
requested that the Employer increase her hours to cover this
position The Employer, however, declined this request and
instead offered the Grievor the unclassified position on the
condition that she resign her regular part-time position.
The unclassified position was at the same facility and entailed
the same work as the Grievor had performed as a regular part-time
Cleaner 2.
The Grievor resigned her part-time position effective
Monday December 5, 1988 and began work in the unclassified
position on December 7th. The Grievor remained in this position
until May 29, 1989 at which time she was appointed to the full-
time classified service The Employer calculated the Grievor's
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continuous service date under Article 25 of the collective
agreement as December 7, 1988
The parties agreed that section 6 of Regulation 881 to
the Public Service Act was amended to include Group 4 effective
April 1, 1989. Accordingly, in December of 1988 when the Grievor
was appointed to the unclassified service, such appointments were
confined to the three groups set out in section 6 see OPSEU
(Beresford) and The Crown in Right of Ontario (Ministry of
Government ,Services G.S B File No 1429/86
In this case, as in Beresford, there is nothing to
indicate that the unclassified position to which the Grievor was
appointed was of a temporary or non-recurring nature. Moreover,
the Grievor was clearly not a seasonal employee and it was
conceded that the unclassified position entailed the same work as
she had performed when working as a regular part-time employee
although the unclassified position involved 40 hours per week
In the result, based on the agreed statement of fact, I cannot
conclude the Grievor's appointment fit within one of the three
groups set out in section 6 of Regulation 881. I find,
therefore, that the Grievor's appointment to the unclassified
staff was improper
Nevertheless, the Employer submitted that having
resigned her regular part-time position in December of 1988, the
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Grievor cannot now suggest that there was no break in her
classified service In my view, however, the Employer cannot
rely on a resignation which was extracted from the Grievor as a
condition of an appointment to the unclassified service which was
improper Moreover, although the Employer contended that having
not objec~ed to her appointment at the time, the Grievor is
precluded from doing so in the context of this grievance, the
issue raised in the grievance relates to the calculation of
seniority, a matter which is generally considered to involve a
continuing breach of the agreement. In these circumstances, the
failure to initiate a grievance within the period specified in
the agreement will not render the grievance inarbitrable although
any remedy may be limited to the permissible period for filing a
grievance under the agreement
Having considered the matter carefully, I find that the
appropriate remedy in this case is to direct that the Grievor's
seniority be calculated as if there had been no break in her
classified service This will entitle the Grievor to credit for
her part-time service under Article 25 of the collective
agreement The remedy shall be effective 30 days prior to the
date on which the grievance was filed and I shall remain seized
for purposes of implementation of this award
DATED AT TORONTO, this 7th day of January, 1994
rf"Qw.. ~ ~
Vice Chairperson