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Home My WebLink About1993-0675.Binda.94-04-13 -- - / ( - ONTARIO EMPLOYES DE LA COURONNE 7, CROWN EMPLOYEES DE L'ONTARfO 1111 GRIEVANCE COMMISSION DE . SETTLEMENT REGlEMENT . BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE ?100 TORONTO, ONTARIO, M5G lZ8 TELEPHONE/TELEPHONE (416) 326-1388 180, BUE DUNDAS OUEST BUREAU 2100 TORhNTO (ONTARIO) M5G lZ8 FACSIMILE ITELECOPIE (416) 326-1396 / 675/93 IN THE MATTER OF AN ARBITRATION under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ~CT Before THE GRIEVANCE SETTLEMENT BOARD ~ BETWEEN OPSEU (Binda) Grievor - and - ~ The Crown in Right of ontario (Ministry of Health) \ Rockland/Orleans Ambulance "'-. Employer BEFORE: R. Verity Vice-chairperson E Seymour Member / . M. O'Toole Member FOR THE M. Bevan GRIEVOR Grievance Officer ontario Public Service Employees Union / FOR THE J Perry EMPLOYER Counsel Shibley, Righton Barristers & Solicitors HEARING December 14, 1993 February 8, 1994 ( ,. 2 I 1 1 DECISION On April 20, 1993, Bruce Binda was dismissed from his employment as a part-time ambulance officer with Rockland/Orleans Ambulance Service. Mr Binda was advised of his dismissal in the form of a memorandum from owner-operator Bernard Thivierge. The memorandum contained no reason for the employer's action. A grievance, dated May 10, alleged dismissal "without just cause and in bad faith" The settlement desired was "reinstatement with full remedial redress" At the outset of the hearing, the employer contended that the"?'Board lacked jurisdiction due to the grievor's probationary status at the time of dismi~sal with no right to grieve under the collective agreement then in effect. The union argued that the grievor was not a probationary employee and that in the absence of just cause, he must be reinstated with full remedial redress. The issue for determination is said to be whether or not the grievor was a probationary employee at the time of his dismissal. The facts are not in dispute. The grievor was hired as a part-time ambulance officer on May 11, 1991 under th~ terms of a collective agreement deemed to be in effect from September 1, 1990 to December 31, 1991. The collective agreement, which applied to both full-time and part-time employees, provided for a probationary period of 312 hours for a ( part-time employee with no right to grieve discharge during the probationary period. Subsequently, on June 24, 1992, the parties agreed upon all terms of a new collective ( ( 3 agreement which was then awarded in an interest arbitratiol! of Paula Knopf, dated July 1, 1992. This new collective agreement was for the period January 1, 1992 to December 31, 1993 A term of that agreement provided that the probationary period for part-time c. employees was 1,000 hours with no right to grieve discharge. At the time of dismissal oil April 20, 1993, the grievor had accumulated 778,25 hours of part-time service. The relevant provisions of the collective agreement, signed August 29, 1991, and deemed in force at the time of the grievor's hire -read as follows. \- 11.03 ProbationalV Emolovees: ~ a) b) Part-time employees shall be on probation for a period of 312 hO}lrs and shall not have any rights to a grievance if discharged during probation. However, after their probationary period is completed, their seniority shall be retroactive to the first day of their employment. c) ARTICLE 28 - TERM OEAGREEMENT 28.01 Effective Date: This Agreement shall be in effect from September 1, 1990 to December 31. 1992 and shall continue from year to year thereafter unless either party gives to the other !party notic~ in writing in accordallce with Article 28.02 28.03 AJrreement to Continue in Force: \ Where such notice requests revisions only, the following conditions shall apply' a) both parties shall adhere fully to the terms of this AgreemeQt during the period of bona fide collective'bargaining and if negotiations extend beyond the anniversary date of this Agreement any revision in terms, mutually agreed upon, shall, unless othenvise specified, apply retroactively to that date; ---- - . "~, --,. .-+--- --'. r r I \ 4 b) the Agreement shall end only after conciliationseIVices have been completed and the requirements of the Labour Relations Act of Ontario for a legal ~e or lockout have been met. The new collective agreement contained the following relevant provisions. 11.03 Probationary Emplovees: (a) (b) Part-time employees shall be on probation for a period of one thousand (1000) hours and shall not have" any rights to a grievance if discharged during probation. However, after their probationary period is completed, their seniority shall be retroactive to the first day of their employment. (c) I!?;:o 32.01 Effective Date: This Agreement shall be in effect from January 1, 1992 to December 31, 199;J and shall continue from year to year thereafter unless either party gives to the other party notice in writing in accordance with Article 31.02. i 32.03 AJrreement to Continue in Force: Where such notice requests revisions only, the follqwing conditions shall apply' (a) both parties sh~ll adhere fully to the terms of this Agreement during the period of bona fide collective bargaining and if negotiations extend beyond the ann,iversary date of this Agreement any revision in terms, mutually agreed upon, shall, unless otherwise specified, apply retroactively to that date; (b) the Agreementsh~ end only after conciliation services have been completed and the requirements of the Crown Employees CollectiVe Bargaining Act have been met. ,- ( The union contends that the grievor's probationary period is 312 hours pursuant to the terms of the collective agreement under which he was hired. In support, the union cited J ) ( I \ 5 the following 'authorities. Re Government of Northwest Territories and Union of Northern I Workers (1989), 5 L.A.C. (4th) 353 (Chertkow), Re Central Canada Potash Co. Ltd. and I United Steelworkers. Local 7656 (1975), 10 L.A.C. (2d) 29 (Norman); and Re Bell Canada and Communications Workers 'Of Canada (1984), 15 L.A.C. (3d) 27 (M. G Picher). I The employer maintains that the current collective agreement applies in the circumstances of this case. The following authorities were referred to. Re Siberry Investments Ltd. (Loeb Yorkgate) and International Woodworkers Association - Canada. Local 1-700 (1992), 28 L.A.C. (4th) 129 (Briggs); andRe Durham Memorial Hospital and London . , & District Service Workers' Union. Local 220 (1991), 19 L.A.C. (4th) 320 (I€aufman). The parties agreed that the new collective agreement as a whole is'made retroactive to January 1, 1992, including the provision to increase the number of probationary hours for part-time employees from 312 hours to 1000 hours. The Board allowed the employer to call .evidence of negotiating history and past practice to establish a latent ambiguity alleged to be contained in the words "anniversary date" in Article 28.03( a). In our view, the ambiguity argument does not advance the employer's case in light of the ....nion's agreement that the provisions of the new collective agreement are retroactive to January 1, 1992. We are satisfied that the words "anniversary date" contained in Article 28.03( a) are clear enough not to be ambiguous and can only be interpreted to mean expiry date. Accordingly, in the absence of an ambiguity, we cannot rely upon extrinsic evidence by way of negotiating history and past practice as an aid to interpretation. We are satisfied that the parties are < - -.---- ~ ~ - --. - --. -- -- - , { ( --.-- - 6 aware that, under Article 28.03( a), they are required to adhere to the provisions of an expired collectIve agreement until a new agreement has been reached', and that unless otherwise specified, any revision in terms will apply retroactively to the date of I \ I commencement of the new collective agreement. ( Initially, arbitrators held that if the intention was that non-monetary items be retroactive, that intent has to be specified in <(lear language. See for example, Penwick Canada Limited (19~6), 17 L.A.C. 296 (Weatherill). However, the current approach is to presume that all clauses are retroactive to the effective date of the collective agreement unless it would lead to "impractical or unintended results" InPenticton and District Retirement Service and Hospital EmplQYees' Union. Loc. 180 (1977), 16 L.A.C. {2d),97 (P C. Weiler) the arbitrator stated at p.102. I .the current approach of Canadian arbitrators is to start from the presumption that the agreement as a whole is made retroactive, as the parties have stated in their duration clause. But specific exceptions may be read into this standard retroactive principle, excluding certain terms of the agreement from the clause, if full retroactivity would appear to lead to quite impractical and unintended results. As indicated previously, in the instant grievance, the parties have agreed that the new collectiveagreemeilt was wholly retroactive m all relevant parts to January 1, 1992. However, in our view, that does not end the matter In Central Canada Potash Co. Ltd.. supra, where the expired collective, agreement provided for a 6S shift probation period and the new agreement reduced the penod to 50 shifts, the arbitrator concluded that the new - - I --~.- .- r -- I I, 7 agreement did not apply retroactively to employees who had commenced employment before the commencement date of the new agreement. In the words of arbitrator Norman at p. 33 .it is my opinion that the new collective agreement was wholly retroactive, as between the parties. This finding, does not, however, lead me to conclude that the grievor, as of February 1st, ipso jure, was subject to a 50-shift probation period. To leap to such a conclusion would surely do damage to the intentions of the parties. On the one hand, one might assert that to shelve the grievor's 6~-shift probation period as of February 1st, might well leave his employer in a position where, it would not have time to finally evaluate his capacity to fill the bill for the company That is, the whole rationale of probation as a time of assessment of the probationer's worth and suitability, is thrown out the window as far as the person in the grievor's shoes is concerned. On the other hand, one might conclude that the legal effect ( of the 50-shift peri()d, retroactively applied, might be to erase the time already worked by aprobationery for the purposes of calculating the 50 shifts. The result of this analysis would be that a probationer who had worked 65 shifts as of February 1st, would have to begin again, with a clean slate, and work a further 50 shifts as a probationer. The absurdity to which lam lead in each of the above ca~tEersuades me that the 50-shift clause can only ~ read as applying retro~ctively to probationers who comihenced work with the company on or after February 1st. It can have no application to the regiine of probation set as between the company and the grievor as of the date of his employment on November 29, 1974 In Government of Northwest Territories and Union of Northern Workers. supra, the expired collective agreement coniained a one year probationary period, whereas the new agreement reduced the probationary period to six months. In that case, it was the union that asserted that the grievor fell under the terms of the new agreetllent. Arbitrator Chertkow adopted the approach taken by arbitrator Norman in Re Potash and offered the \ following rationale at pp. 357-58. If the position of the union is accepted it would result in an absurd situation whereby the employer would have effectively lost the opportunity to assess Mr. Oloke during his probationaty period. Such a reading would not be within the reasonable expectations of the parties on the concept of probation. It is an agreed period of time wherein the employer has the opportunity to assess a new employee's suitability for permanent employment. As was succinctly put by arbitrator Schiff in Re Canadian Canners Ltd, supra, at p.61. - I . , 8 when a new collective agreement supersedes a predecessor agreement, in the absence of compelling language in the new agreement arbitrators will not read the new provisions as applicable to events occurring before the date of the new agreement's execution if the effect of the retroactive reading would be absurd or would unfairly disappoint the reasonable expectations of whose who had been subject to the provisions of the predecessor Arbitrator Norman in Central Canada Potash Co. Ltd., supra, also declined to give retroactive force to a change in a collective agreement which reduced the probationary period from 66 to 50 shifts worked. He 6bsclVed at p. 33: the whole rationale of probation as a time of assessment of the probationer's worth and suitability, is thrown out the window as far as a person in the grievor's shoes is concerned. Finally, as was noted in Bell Canada, supra, at p. 37' In the interests of both employers and unions findings in favour of retroactivity should be made only with great care. Obviously in this grievance the argument against retroactivity favours the interests of the grievor.and the union. The shoe could as easily be on the other foot. There may be circumstances in which the prior expectation of a company which has gone forward on the terms of a prior collective agreement must also be respected. .,:,,~, On the facts of the instant grievance, we are satisfied that the prior expectations of the parties must be respected. There can be no doubt that the 1000 hour probationary period for part-time employees apphes retroactIvely to those employees who commenced work on or after January 1, 1992. In our view, it can have no application to employees such as the grievor who commenced work under1the probationary regime of a previous collective l agreement. In the result, it cannot be said that the grievor was a part-time probationary employee at the time of his dismissal on April 20, 1993 The parties have agreed that in the event that the board finds that the grievor was not such an employee, the appropriate remedy would be reinstatement. Accordingly, we order that Bruce Binda be reinstated to -. - -- - -- - -_._-- - -- .\. - -- I ( \ .. ., ~.. \ 9 the position of part-time ambulance officer at Rockland/Orleans Ambulance Service. We remit to the parties the issue of the appropriate compensation payable and retam jurisdiction in the event of any difficulty encountered in that regard. DATED at Brantford, Ontario, this 13 day of Ap r i 1 1994 C-<~ .R. L. VERITY, Q.C. . VICE-CHAIRPERSON / ):. /~/ J"", . -z . L ,-""f:..-f:J''-<''- .~.~................................................ E. SEYMOUR - MEMBER :r:~ .~7l1...Z.....Q.~~..~............................. M. O'TOOLE - MEMBER ""- c \