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HomeMy WebLinkAbout1994-2246RIVARD95_09_26 aNT ARia EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L ONTARIO 1111 GRIEVANCE CpMMISSION DE ~ SETTLEMENT REGLEMENT ~ o-{\ \1., ') {:,\ - BOARD DES GRIEFS cr,i' -) ~. ~- ISO DUNDAS STREET WEST SUITE 2100 TORONTO ONTARIO M5G IZS TELEPHONUTELEPHONE (416) 326-1388 R r A RUE DUNDAS QUe:') t1u^cAU 2100 TORONTO (ONTARIO) M5G lZS FACSIMILE ITEU:COPIE (476) 326-1396 .,. "f'EI\1 , " II W- ~ ,. . -.. ~, . J... ~i ~ ~ . .' ~ t{ . t' . ., ~""" "'. . ~ ~,.A'f .,:,., I'; ~.,~. fJzJ '''''''' ,..". VJ I.J'~~.l' GSB # 2246/94 SEP 2 6 1995 OPSEU # 95C175 PUBliC SI':::PV1Cr= '- , ''- APPEAL ~JABD8_. IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Rivard) Grievor - and - The Crown in Right of ontario (Ministry of Heatlh) Green's Ambulance Service Inc Employer BEFORE 0 Gray Vice-Chairperson FOR THE J Gilbert GRIEVOR Grievance Officer Ontario Public Service Employees Union FOR THE J Batty EMPLOYER Assistant Manager Green's Ambulance Service HEARING May 30, 1995 ~ Decision On January 9, 1995, the grIevor filed the followmg grIevance STATEMENT OF GRIEVANCE Employer has violated Article 14 of Collective Agreement by improperly removing my name on the full time seniority list. SETTLEMENT DESIRED That my name be placed on the full time seniority list with my seniority date of November 1, 1991 When the grIevance came before me for arbItratIOn the partIes agreed on the following facts. 1 The grievor, Ron Rivard, is employed as a Driver/Attendant by Green's Ambulance and has been with the company since March 22, 1991. 2. The grievor commenced full time employment November 1 1991 and as a result hIs name and start date was put on the full time seniority hst. 3. On August 15, 1993, the grIevor was laid off his full time position. At the time of his notification of layoff, which was approximately one week prIOr to August 15, 1993, the grievor was offered part time employment as a Driver/Attendant and accepted this appointment on the 15th August 1993. The grlevor's name and part time hours was [sic] placed an the Part Time Seniority List. 4. The grievor continued to work part time until February 13, 1995 when he commenced a temporary 40 hour per week contract, replacing another employee off on long term illness and is still so employed. The grievor continues to accumulate part time semority while on this assignment. 5. The Collective Agreement requires the employer to post, twice annually the seniority hsts, in January and July each year 6. There are separate seniority lists for full time and part time. 7 As the grievor was laid off from full time status on August 15 1993, pursuant to Article 14.05 (a), seniority was to accumulate for one year and in fact did. 8 The grievor's name and correct semority were posted on the Full Time Seniority LIst in January 1994 and again In July 1994. However on the January 1995 full time seniority list, the employer deleted the grievor's name which led to the instant grievance. Regarding the statement in paragraph 4 that the grIevor has smce February 13, 1995 been accumulatmg "part time semorIty" will.le workmg 40 hours per week, 2 the umon's representatIve advised me that the umon agreed both that this was so and that It was proper The partIes' collective agreement covers a smgle bargammg umt consist- mgof all employees of Green's Ambulance Service Inc. in the Town of SImcoe save and except supervisors and persons above the rank of supervisor office and clencal staff, and students employed durmg the school vacatIOn penod. Articles 1401 through 1406 provIde as follows ARTICLE 14 SENIORITY 14.01 Semority as referred to in this agreement, shall mean length of continuous servIce in the employ of the Company Seniority shall be on a Company wide basIs. One year of service will be equivalent to two thousand and eighty (2,080) hours. 14.02 An employee will be considered on probation for the first mnety (90) days worked for the Company Mter ninety (90) days worked, his seniority shall date back to the day on wluch his employment began. The dismissal, layoff, or recall after layoff of a probationary employee shall be at the Company's discretion and shall be deemed to be for just cause. Notwithstanding the foregoing, an employee hired after June 5, 1992 will be considered to be on probation for the first one hundred (l00) shIfts worked for the Company On call and stand by shifts will not be consIdered as part of the probation period. Mter the one hundred (100) shifts worked, his seniorIty will date back to the date on which lus employment began. The dismIssal, layoff or recall after layoff of a probationary employee shall be at the Company s discretion and shall be deemed to be for just cause. 14.03 Separate seniority lists will be prepared, one for full time and one for part time, and will be revised January 5th and July 5th of each year and will also be posted m the station and a copy given to the local Union Unit Steward. If an employee does not challenge the position of his name on the semority hst withm two (2) weeks from the date his name first appears on the senionty list, then he shall be deemed to have proper seniority standing For full time employees, the seniority list will state the date of commencement of employment and subsequent revised dates as provided under this Agreement. For part tIme employees, the seniority hst will be based on total hours worked as a part time employee 14.04 In the case of a promotion (other than promotions outSIde the bargaimng umt) and demotIOns (other than disciphnary demotIons) and m all cases of increase and decrease of forces the following factors shall be considered. (a) seniority' (b) ability and qualIficatIons, \\1nere, m the opmion of the Company the factors m (b) are relatIvely equal, factor (a) semonty shall govern. The proviSIOns of this section shall not apply to temporary layoffs of three (3) days or less However where such temporary layoff is due to a velucle breakdown, it IS agreed that employees will be hild offm followmg order' (1) part tJme employees; 3 - (2) full tIme employees !lnd supervisors working overt.lme, ('~) t.he regularly scheduled full tIme employees with the least semonty In the event the vehIcle breakdown is for more than one (l) shIft regularly sr.heduled full tIme employees may exercIse semoTlty In heu of layoff. 14.05 SenlOTlty shall accumulate in the following circumstances only' (a) when off work due to layoff, sickness or accident, semorIty shall continue to accumulate for a period of time equal to one (1) year (b) when off work due to personal leave of absence, then seniOrIty will contInue to accumulate for the first SIX (6) calendar months of such leave. In the event that the leave of absence is to take a paramedical course, then semority will contInue to accumulate for up to one (1) year durIng such leave, (c) when absent on vacatIon with payor on a designated holiday' (d) when actually at work for the Company 14.06 Seniority shall terminate and an employee shall cease to be employed by the Company when he. (a) voluntarily quits his employment with the Company' (b) is discharged and is not reinstated through the grievance procedure or arbitration, (c) is off work for a continuous period of twelve (12) months, subject to the provisions ofthe Workers' Compensation Act, the Human Rights Code of Ontario and the Employment Standards Act; (d) fails to report for work within five (5) working days after being notified by mail of recall; (e) fails to return to work upon the termination of an authorized leave of absence unless there has been a mutually agreed upon extension of the leave of absence; (f) accepts gainful employment while on a leave of absence without first obtaining the consent of the Company in writing; (g) is absent from work for two (2) consecutive working days or more without notifymg the Company The employee is expected to notify the Company in the event he is not able to report for work at lus scheduled starting tIme. Schedule "B" to the agreement sets out or Identifies the provISIOns whIch are applicable to part time workers. SCHEDULE "B" PART TIME EMPLOYEES Whereas the Company and the Umon have decided that the terms and conmtions of employment for part-time employees shall be included In tlus separate Appendix 'B" NOW THEREFORE, unless otherWIse stated m the CollectIve Agreement, it IS agreed as follows: 4 I The terms and conlhtlOns of employment for part time employees of the (,ompan\ bem~ those employees who arc not who arc not regularh emploY(HI for more than twenty four (24) hours per week, shall be as follows 2, Upon completIOn of one thousand and forty (1 040) hours of work In a classIficatIOn, a part time employee shall be considered as havmg completed hIS probatIOnary penod should he be subsequently hIred as a full time employee m his classIfication. For an employee hired after June 5 1992, upon completion of one hundred (l00) shifts in a classIficatIOn, such part tune employee shall be considered as having completed lus probatIOnary penod should he be subsequently hired as a full time employee m lus classIDcatIon. Any part time employee who has completed part of lus probatIOnary penod at the time he is hIred as a full time employ~e In lus classIficatIOn will be gIven credIt for the time served as a part time employee in his classificatIOn towards the completion of the full time probationary period as set out in Article 14.02. 3. The Company agrees to continue its existing policy and practice in respect of supply of uniform items to part time employees for the duration of the Collective Agreement. 4. For the purposes of determining seniority it is agreed that two thousand and eighty (2,080) hours worked equals one year of seniority This defirntIon shall be used only for determining seniority ranking for part time status and/or transfer to full time status. It shall not be used for vacation entitlement or wages. 5 Wages See Schedule" A" 6 The only terms of this Agreement that apply to employees classified as part time employees are those that are set out below' Article 1 Preamble, ArtICle 2 Recognition, Article 3 Relationship, ArtIcle 4 Management Rights, Article 5 Employee/Company Relations Committee, Article 6 Stewards and Committees, Article 7 -Grievance Procedure, ArtIcle 8 Arbitration, ArtIcle 9 Management Grievances & Union Policy Grievances , Article 10 DischargelDiscipline Cases, Article 11 No Strikes/No Lockouts, Article 12 Wages, Article 14.03 Sernority LIsts, Article 14.06 Loss of SernorIty and Employment, Article 14.07 Notification of Change of Address, Article 15 Dues Check-off, Article 16 Correspondence, Article 17 05 Base Duties, Article 17 11 Shift Premium, Article 1902 Work on Statutory Hohday (note that the lieu day provision only applies to full time employees with three months' service or more) Article 23 Health & Safety, Article 25 Miscellaneous, Article 28 Term. 7 Part tIme employees we reqUIred to work stand-by shifts. It is understood that the stand-by hours are not included in the calculatIon of regular hours worked for purposes of paragraph 1 for purposes of calculating the probationary period. Argument The umon agrees WIth the employer that after the gnevor moved from full-time to part-tIme employment and hIS name was added to the part-time semonty hst, ArtIcle 1405 of the collective agreement reqUIred that the em- 5 - ployer also keep the gnevor's name on the full tIme semonty hst for a penod of one year durmg whIch hIS full tIme semonty would contmue to accumulate The parties also agree that hIS full tIme semonty would stop accumulatmg at the end of that year They dIsagree only about whether the collectIve agreement reqUIred or permItted the removal of hIS name from the full-tIme semonty hst when that one year penod came to an end. The umon argues that the gnevor's name should not have been removed from the full-time semority hst and that so long as he remams a part-tIme em- ployee he should retam the full-time semonty he accumulated durmg and for one year after hIS penod of full-time employment. It argues that no prOVISIOn ex- pressly authonzes termmatmg the full-tIme semonty of an employee who IS still employed, albeIt as a part.tIme employee. Reference was made to the frequently quoted passage from Tung-Sol of Canada Ltd. (1964), 15 L.A.C 161 whIch ap- pears at ~6'OOOO of Brown and Beatty, Canad~an Labour Arbaratwn (3d), m whIch arbItrator ReVIlle observed that semorIty IS one of the most Important and far reacmng benefits which the trade Ulllon movement has secured for ItS mem- bers, and that arbItrators should construe a collective agreement stnctly when- ever It IS contended that semonty has been forfeIted. The employer argues that It dId what ArtIcle 14 06(c) requires It says that the partIes have treated full-time employment as somethmg qUIte dIstmct from part-tIme employment, and that the grievor's rIghts wIth respect to full. time semority and full-time employment after he was laId-off from full-time em- ployment were no dIfferent than they would have been had he not then been gIven part-time work. For purposes of calculatIOn, accumulation and retentIOn of full-time semonty, the gnevor was a laid-off full-time employee from and after August 15, 1993 The employer says that once the gnevor had been off full-tIme work for a contmuous perIOd of 12 months, Article 14 06(c) reqUired that hIS full- time semonty terminate and ms remammg full-tIme employment status cease Decision The immedIate questIOn raIsed by the gnevance IS whether the employer VIOlated the collective agreement by removmg the grIevor's name from the full time semonty hst when he had been absent from full-time employment due to layoff for a contmuous penod of 12 months While the Importance of seruonty G rights must be borne m mmd m domg so the questIOn has to be answered wIth reference not only to the words of ArtIcle 14 OG(c), but also to the surroundmg and related prOVISIOns of the collectIve agreement and the partIes' shared under standmg of the effect of those prOVISIOns Although the collective agreement covers a smgle bargammg umt encom passmg both full-time and part-time employees, the partIes have treated full- tIme and part-time employment as qUIte dIstmct. From the answers gIven to questIOns I asked durmg argument, It IS apparent that neIther party sees ArtIcle 14 as gIvmg employee Just one "semonty" WhICh accumulates at a dIfferent rate, IS expressed m dIfferent umts and IS lIsted on a dIfferent lIst for an employee who IS currently employed full time than one currently employed part-time, but reflects hIS or her entIre "contmuous servIce" as an employee unbroken by any VarIatIOns m theIr assIgned hours of work. Both of the partIes' representatIves tell me, for example, that on theIr understandmg of tills agreement an employee who moves from full-tIme hours to part-time hours IS not credIted on the part- time seruority hst wIth 2080 hours times the number of years he or she has worked full-time. Both of them also tell me that under tills agreement, the grievor was entitled to be lIsted on both the full time senionty lIst and the part- time seruonty hst after he ceased workmg full-time and started workmg part- tIme, and that he thereafter accumulated semonty on both lIsts GIven the partIes' shared understandmg that full-tIme and part-tIme employment are so dlstmct, wherever there IS reference m the collective agree- ment to an employee's seruonty or employment It becomes necessary to apply It dIstmctly to full-tIme employment or part-time employment. In applymg the prOVISIOns of the collectIve agreement, m other words, one must quahfy any ref- erence to seruonty or employment or work to mdlcate whether the focus IS on the employee's full time status or on hls/her part time status. Tills approach makes sense of the partIes' shared understandmg that Ar- ticle 1405 allowed the gnevor to remam on the full tIme semorIty lIst whIle he worked part-tIme They applIed that artIcle to the gnevor whIle he was a part- time employee even though It does not appear m the lIst of artIcles made applI- cable to part-time employees by paragraph 6 of Schedule "B" They applIed ArtI de 1405 to hIm as a laId-off full-tIme employee, effectIvely readmg the qualIfier "full-time" mto paragraph (a), as though It saId "when off full-tLme work due to 7 layoff, sickness or accIdent, full tune semonty shall contInue to accumulate for a penod of tIme equal to one (1) year" With reference to hIS full tIme employment, they treated hIm as though he was entIrely "off work," even though he was workIng part time With reference also to the gnevor's full-tIme employment and hiS status on the full-time semonty hst, the employer apphed ArtIcle 1406 as though the grIevor was entirely "off work" even though he was workIng part-time It termI- nated hIS full-time semonty and hIS status as a full-time employee when he had been off full-time work for a contInUOUS perIOd of 12 months. If for purposes of rus full-tIme semority and full-time employment the gnevor was "off work" for a perIOd of a year wIthIn the meanmg of ArtIcle 1405(a), as the partIes agree, then for those same purposes he was surely "off work" for a continuous perIOd of 12 months within the meamng of ArtIcle 14 06(c), as the employer contends It follows that the employer acted properly m termmatmg the gnevor's full-tIme semority and deleting hIS name from the full- tIme semonty hst at the end of the 12 month penod. Accordmgly, thIS gnevance IS dIsmIssed Dated thIS 26 day of September, 1995 "' ~ /- . I ~ .~I; ~!?,~ 0_ ..? j' ~. Owen V Gray, Vice-ChaIr /