HomeMy WebLinkAbout1994-0840GOLDBERG95_06_19
ONTARIO EMPLOYES DE LA COURONNE
CROWN EMPLOYEES DE L'ONTARIO
~ 11111 GRIEVANCE COMMISSION DE b
{V) 0
SETTLEMENT REGLEMENT c~ t\'.f<" \
BOARD DES GRIEFS v ~(o
180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388
180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACS/MILEITELI~COPIE (416) 326-1396
GSB # 840/94
-' OPSEU # 94F048
ReC~~\fED
f,;lII'i'lf " ,1 ·
JUN 1" 1995 IN THE MATTER OF AN ARBI~RATION
Under
PUBUC SERViCe
APPEAL BOA'3Pf? _TJE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Goldberg)
Grievor
- and -
The Crown in Right of ontario
(Ministry of Natural Resouces)
Employer
BEFORE N Backhouse Vice-Chairperson
FOR THE G Leeb
GRIEVOR Grievance Officer
ontario Public Service Employees Union
FOR THE M Nixon
EMPLOYER Management Board Secretariat
HEARING May 30, 1995
I
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AWARD
THE ISSUE.
The Gnevor alleges that the Employer contravened ArtIcle
3 21 I of the Collective Agreement by fallIng to recall hIm to work as a
Resource TechmClan
THE FACTS.
The parties' Agreed Statement of Facts IS reproduced below
"1 The Gnevor, Larry Goldberg, gneved on May 26, 1994, that he
had not been recalled by the Employer to work the spring-
summer season of 1994 as a Resource Technzcian R.T.2 with .the
Mountam River Area of Pembroke District
2 The Grievor had been recalled by the Employer to work as a
Senzor Fire Crewman R.T.2 for the spnng-summer season A
letter dated March 9, 1994 was sent from the MNR to the
Gnevor offermg him reemployment as a semor fire crewman
for the 1994 season. The Grievor had accepted this offer by
March 21, 1994 The Grievor worked from Apnl 24, 1994 untzl
August 31, 1994
3 Smce 1987, the Grievor had been employed with the Minzstry
of NatIOnal Resources each spring-summer season as part of the
seasonal fire crew
4 The Gnevor had previously worked as a Resource Technzczan
R. T 2 at the Mountam River Area of Pembroke Dlstnct dunng
the fall of 1993 That perzod of employment lasted from
October 1, 1993 untzl November 26, 1993 Five other
employees were also offered seasonal employment as Resource
Techmcians for the fall season of 1993 Appendix A
5 On or about Apnl 19, 1994, an offer of recall was made to
Andrew Mask for the posztLOn of Resource Techmcian at the
Mountam River Area of Pembroke Dlstrzct for the perIOd of
Mav 2, 1994 to September 30, 1994 This offer was accepted
Appendix B
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6 Andrew Mask had worked seasonallv as a Resource Techmcwn
at Mountam River since 1992 He had less seniority than the
Gnevor
7 It was decided in Apnl, 1994 that as well as the Resource
Techmcwn job that Andrew Mask had been performing, there
would be two additlOnal jobs at Mountam River that spnng-
summer season. After a postmg, a competltlOn was held to fill
the two posltlOns Interviews were held on May 5, 1994 and
the successful appllcants were employees who had performed
the duties at Mountam Rlver m the fall of 1993 Both
employees had more senlOrity than the Gnevor The Grievor
was not successful in the competltlOn."
I have not set out the Schedules to the Agreed Statement as
they are essentIally supportive of the Agreed Facts
ArtIcle 3 21 1 of the CollectIve Agreement provIdes
"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"
ARGUMENT.
The issue I must decIde is whether the Grievor had the right of
recall to more than one pOSItiOn Havmg accepted the recall to the pOSItiOn
of Semor Fire Crewman, dId the Gnevor have the right to be recalled to the
pOSItiOn of Resource TechmcIan and take his chOice? The Employer
submItted that on the specIfic facts of thIS case, there was no nght of the
Gnevor to be recalled to the posItion of Resource TechnicIan The
Employer relled upon the eVIdence that the pOSItion of Semor FIre
Crewman was requIred to be filled pnor to that of Resource TechmcIan and
that thIS was not a case where the two former positions m WhICh the
Gnevor had worked came up at the same time The Employer further
relted upon Article 3 20 2(a) whIch states
/'
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"3 20 2 (a) A seasonal employee will lose
his seniority when
(iv) he is unavailable for or declines an
offer for re-employment as provided in
Section 321 (job security), or "
The Employer submItted that there cannot be a nght of recall
to more then one posItion because to accept a subsequent offer of
employment would result m the loss of senionty under Article 3 20 2(a)
whIch IS an absurd result and therefore cannot be what was mtended by
ArtIcle 3 21 1
CONCLUSION
The Gnevor was entitled under Article 3 21 1 to be offered
employment m his former pOSItiOns on the baSIS of semonty The Gnevor
had formerly held both the Senior FIreman Crewman positIOn and the
Resource Technician posItion As the employee With more semonty to
Andrew Mask, the Gnevor had the nght to be offered both the Resource
TechmcIan and Semor FIreman Crewman pOSItions m preference to hIm
To hold otherwIse would result m the Gnevor, WIth more semonty, bemg
depnved of the nght to choose the preferred contract, in thIS case bemg
the contract WIth the longest penod of work The fact that the pOSItion of
Resource Techmcian was not yet reqUired to be filled when the Gnevor
was offered the pOSItIOn of Senior FIreman Crewman did not detract from
the oblIgatiOn In ArtIcle 3 21 1 Article 3 20 2(a)(Iv) need not have the
absurd result of the loss of semonty If an employee declInes a subsequent
offer of employment A more reasonable InterpretatiOn of that Article IS
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that no loss of senIonty occurs where the employee has accepted a pnor
offer of re-employment
In the case of OPSEU (G. Genery and the Crown In the RI~ht of
Ontano). D. Fraser (1468/85). released September 12, 1989, the Issue was
whether an employee had to complete the probatIOnary reqUIrement In a
gIven pOSitIOn before recall nghts arose under Article 3 20 1 (now 3 21 1)
WhIle the issue was dIfferent, the Board found that the plural nature of
"former posItions" descnbed In Article 3 20 1 (now 3 21 1) indIcated a
reference to multIple posItions
ThIS gnevance should be allowed. The Gnevor shall be entitled
to the compensatIOn and semonty credIts which he would have receIved
had he been hued as a Resource Techmcian from September 1 to
September 30, 1994 I shall remam seIzed in the event there are any
Issues whIch anse from thIS decisIOn
DATED June 19, 1995
4)r~~
Nancy L Backhouse
Vice-Chairperson