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HomeMy WebLinkAbout1994-0587MCCONNELL95_06_19 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO ~ ('{\ CL 1111 GRIEVANCE COMMISSION DE \' (11'\ v ,/!'-' SETTLEMENT REGLEMENT \; \-" y.' "\ (\ ~'I}J' BOARD DES GRIEFS ~tv~ 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1ZB TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPIE (416) 326-1396 """"'17 ..-- GSB # 587/94 REC'=fl!~::D OPSEU # 94B882 JUN l' 1995 PUBUL,. o2:r1VJCE IN THE MATTER OF AN ARBITRATION APPEAL BOARDS Under - ~-.-~-~.', " . THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (McConnell) Grievor - and - The Crown in Right of Ontario (Ministry of Natural Resouces) Employer BEFORE N. Dissanayake Vice-Chairperson FOR THE G. Leeb GRIEVOR Grievance Officer ontario Public Service Employees Union FOR THE L Marvy EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING May 26, 1995 2 DECISION This is a grievance wherein Mr Mark McConnell asserts recall rights under article 3 21 1 of the collective agreement. The parties were in dispute as to whether the grievor was entitled to the benefit of article 3.21 1 at the relevant time The employer had appointed him as a student pursuant to Group l(V) as defined in section 6 of Regulation 977 under the Public Service Act. The grievor in essence claims that he was a seasonal employee who had completed his probationary period and that he should properly have been appointed to Group III as a seasonal employee, which would have entitled him to recall rights under article 3. Solely for the purpose of arguing this preliminary issue, the parties agreed to the following facts: 1. Mr. McConnell worked from June 14 - September 2, 1990 as a Security Officer at Sandbanks Provincial Park He was appointed to the unclassified service as a Group 1 (V) student. 2. During the Fall of 1990 and Winter of 1991 Mr. McConnell was a full time student at the University of Ottawa 3 Mr. McConnell worked from May I) - September 6, 1991 as a Park Warden at North Beach Provincial Park He was appointed to the unclassified service as a Group l(V) student 4. During the Fall of 1991 and Winter of 1992 Mr McConnell was a part time student at the University of Ottawa 5 Mr McConnell worked from May 12 - May 31, 1992 and from June 19 - September 6, 3 1992 as a Park Warden at Sandbanks Provincial Park He was appointed to the unclassified service as a Group l(V) student. 6. During the Fall of 1992 and Winter of 1993 Mr. McConnell was a full time student at the University of ottawa. 7 Mr. McConnell worked from May 10 - September 4, 1993 as a Park Warden at Sandbanks provincial Park. He was appointed to the unclassified service as a Group l(V) student. 8. The grievor was not offered reemployment at Sandbanks Provincial Park int he summer of 1994. (Mr. McConnell did work for Charleston Provincial Park during the summer of 1994.) He was hired on a Group 3 contract which was subsequently altered to Group 2 as it did not run for 8 weeks. Section 8 of the Public Service Act provides the authority to make appointments to the unclassified service as follows 8. (1) A minister or any pUblic servant who is designated in writing for the purpose by him or her may appoint for a period of not more than one year on the first appointment and for any period on any subsequent appointment a person to a position in the unclassified service in any ministry over which the minister presides. (2) Any appointment made by a designee under subsection (1) shall be deemed to have been made by his or her minister. Regulation 977 pursuant to that Act in section 6 (1) provides that the unclassified service is divided into 4 . 4 groups Group 1 consists of four categories including 6(1) (a) (V) employees who are "employed during their regular school college or university vacation period or under a co- operative educational training program" Group 3 is said to consist of seasonal employees described as "employees appointed on a seasonal basis for a period of at least eight consecutive weeks but less than twelve consecutive months to an annually recurring position where the contract provides that the employee is to work either 36-1/4 hours per week or 40 hours per week;" Seasonal employees are defined in article 3.18 of the collective agreement as follows 3.18 A seasonal employee is an employee appointed for a period of at least eight (8 ) consecutive weeks to an annually, recurring full-time position in the unclassified service in a ministry For purposes of this definition full-time means a minimum of thirty-six and one- quarter (36-1/4) or forty (40) hours per week, as applicable Seasonal employees are granted recall rights in article 3 21 1 as follows. 3 21.1 Seasonal employees who have completed their probationary period shall be offered employment in their former positions in the following season on the basis of seniority 5 The probation period for a seasonal employee is described in article 3.19: 3.19 The probationary period for a seasonal employee shall be two (2) full periods of seasonal employment of at least eight (8) consecutive weeks each, worked in consecutive years in the same position int he same ministry. The issue for determination is whether the grievor had the status of a seasonal employee who had completed his probationary period within the meaning of article 3 21.1 so as to be entitled to an offer of employment in his former position on the basis of seniority. The employer agrees that the grievor has been employed for two full periods of employment of at least 8 consecutive weeks in consecutive years in the same position in the same ministry as required by article 3.19. However, it is contention of the employer that the grievor's consecutive periods of employment were not as a seasonal employee. The employer purported to appoint the grievor as a student [under s 6(1) group 1 (V) ] on each of his contracts. However, since the grievor was only a part-time student during the fall of 1991 and winter of 1992, employer counsel conceded that he may be properly considered as a seasonal employee during his employment in the summer of 1992. Nevertheless, it is the employer's position that what the grievor had was a period of seasonal employment, sandwiched in between two l 6 periods of employment as a student and that he did not have two consecutive periods of seasonal employment in order to complete the probationary period as a seasonal employment, which is a precondition of entitlement to recall rights under article 3.21 1. The union on the other hand submits that the grievor worked 2 consecutive periods as a seasonal employee. The first, according to the union was the period of employment in the fall of 1991 and winter of 1992. As noted, this is conceded because the grievor was only a part-time student in the preceding period. In the fall of 1992 and winter of 1993, he was a full-time student Nevertheless, it is the union's position that the grievor's appointment to the unclassified service in the summer of 1993, although purported to be made to group l(V) as a student, should properly have been to group 3 as a seasonal employee. If the union is correct, the grievor would have had 2 consecutive periods of seasonal employment i e. in the summers of 1992 and 1993, and would have completed the probationary period as a seasonal employee to become entitled to recall rights under article 3 21.1. Therefore, this dispute turns on whether the employer was authorized to appoint the grievor to the student group in the summer of 1993 or whether he should properly have been appointed to group 3 as a seasonal employee 7 It is the union's contention that the grievor should have been appointed as a seasonal employee in the summer of 1993 because on the agreed facts, the grievor had not been a full- time student since he did the Fall 92 / spring 93 session. In other words, since the spring of 1993 the grievor had ceased to be a full-time student and could not be properly appointed to the student group. The employer relies on a provision in its policy and procedure manual which provides as follows: Student Status You will retain "student Status" until you terminate employment or provide proof of graduation (i.e. original or certified copy of a college diploma or university degree; transcript of marks specifying degree obtained certified by the college or university; official letter from the University of college). Upon receipt of proof of graduation you will be paid the full job rate retroactively. If your contract expires prior to receipt of proof of graduation, retroactivity will not apply. It is the employer's position that pursuant to this policy, the grievor's student status continued into 1993 because he had not provided proof of graduation from the University of ottawa The union submits that the policy cannot be proper because according to that a student who does not graduate would forever remain on student status for purposes of employment in the OPS If the letter of the policy is applied, it is argued, this would mean that even if l 8 the person had quit studies for good he would retain his student status forever. It is contended that since the agreed facts do not disclose that the grievor was ever engaged in full-time studies since the spring of 1993, it was not proper for him to have been appointed to the student group in the summer of 1993. The appropriateness of appointment to the 4 groups in the unclassified service is governed by the language in section 6(1) of the regulations Any employer policies in this regard must be consistent with the spirit and intention of the regulation. The relevant description of the student group refers to persons who are employed "during their . . . university vacation period". In my view these words denote two things. First, the language implies full-time student status. Secondly, it implies that the person's full-time student status has not been terminated and that he would be returning to school after the period of vacation The employer's policy of treating only full-time students as falling within this category is consistent with the regulation. The policy is also consistent to the extent that where the studies have terminated by graduation, the student status no longer continues However, in my view, the policy does not take into account the reality that a student may terminate his studies as a full-time student, otherwise than by graduation. For example, if the grievor at the end of the 9 session ending the spring of 1993 had decided not to return to full-time studies following the summer period and he was able to establish his commitment not to return, then in my view he would not fit the description of a person who is employed during his university vacation period. He would be a person who had interrupted or abandoned his full-time studies. In deciding the proper appointment, it is incumbent upon the employer to ensure that the employee meets the conditions for the particular group set out in the regulations. If the employee indicates an intention not to return to full-time studies, the employer is entitled to satisfy itself of that commitment by seeking supporting evidence and/or obtaining a formal undertaking. In the present case the employer simply applied a hard and fast rule that unless there was proof of graduation the employee's student status is deemed to continue. Such a rule in my view is inconsistent with the regulation. Where a person had made a decision not to return to full-time studies, the regulation does not envisage that person to be a person "employed during their university vacation period " The appointment of such a person to the student group under section 6(1) (a) (V) is not proper. The agreed statement of fact does not specifically address the question of what happened to the grievor' s studies following the end of the session in the spring of 1993. If I 10 the grievor did not return to full-time studies following the summer of 1993, he could not be deemed to be a person employed during his university vacation, when he was employed in the summer of 1993. Thus his appointment to the student category would have been improper. The parties agreed that if the grievor could not have been properly appointed to the student category, his appointment would have been proper within Group 3 - the seasonal employee group If the grievor's employment in the summer of 1993 should properly have been as a seasonal employee, then, he would have had two consecutive periods of seasonal employment in order to complete the probationary period for a seasonal employee and hence he would be entitled to rely on the recall rights under article 3.21.1. I deliberately avoid making a specific ruling on the status of the grievor's employment in the summer of 1993 because the facts are somewhat unclear as to the status of his studies at the end of the full-time session he completed in the winter 1992jspring 1993. The parties are directed to apply the interpretation of the regulations and the collective agreement I have set out herein and attempt to agree on the status of that period of employment I shall remain seized in the event agreement is not reached 11 If the determination is that the grievor was entitled to rely on recall rights pursuant to article 3.21.1, the merits of his grievance would have to be determined as to whether that article was complied with by the employer. Dated this 19th day of June 1995 at Hamilton, ontario. -. ,.~ Nim V. ssana-;rake Vice-Chairperson I