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HomeMy WebLinkAbout1995-1712.LaSalle.99-10-12 Decision o NTARW EMPU) YES DE LA cOURONNE CROW"! EMPLOYEES DE L 'ONTARW GRIEVANCE COMMISSION DE 1111 SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE, (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILElTELECOPIE. (416) 326-1396 GSB # 1712/95 OPSEU # 95E562 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (LaSalle) Grievor - and - The Crown In RIght of Ontano (Royal CIty Ambulance ServIces) Employer BEFORE Ken Petryshen Vice Chair FOR THE Andrew PInto GRIEVOR BarrIster & SOlICItor FOR THE DavId Damels EMPLOYER Counsel, Mathews, DInsdale & Clark BarrIsters & SOlICItorS HEARING May 3 1999 2 DECISION In a gnevance dated October 11 1995 Mr Ron LaSalle claims that the Employer breached a letter of agreement between the Employer and the Umon dated August 31 1994 Mr LaSalle requests that he be permItted to resume a part-tIme posItIOn In Fergus and to be compensated for hIS losses The Employer takes the posItIOn that It has not contravened the CollectIve Agreement wIth respect to ItS treatment of Mr LaSalle ThIS gnevance was heard as part of the med-arb backlog process The Employer operates ambulance servIces In Guelph and In Fergus, each covered by a separate CollectIve Agreement. It employs full-tIme and part-tIme ambulance officers at each locatIOn. The Guelph bargaInIng umt has more employees than the Fergus bargaInIng umt. When he filed hIS gnevance, Mr LaSalle was employed as a part-tIme ambulance officer at Guelph. Pnor to November 1994 Mr LaSalle had a part-tIme posItIOn at Fergus as well as a part-tIme posItIOn at Guelph. The events whIch resulted In the loss of the Fergus part-tIme posItIOn gave nse to Mr Lasalle's gnevance In August of 1994 the Employer was faced wIth the prospect of havIng two full- tIme ambulance officers off work for an extended penod of tIme It appeared that theIr absences could extend for a penod of a year Although there IS a provIsIOn In the most recent collectIve agreement whIch speaks to such a sItuatIOn, the relevant CollectIve Agreement does not contaIn a provIsIOn dealIng wIth the fillIng of temporary full-tIme vacanCIes A meetIng occurred between the Employer and the Umon on August 26 3 1994 to dISCUSS the temporary fillIng of the full-tIme vacanCIes Mr Hitchon, the Employer's Manager and Ms S Weese, a Umon staff representatIve at the Guelph office, along wIth two local Umon officIals, attended the meetIng. The meetIng lasted for over an hour dunng whIch the partIcIpants exchanged VIews about how the temporary posItIOns mIght be filled and what would happen to any part-tIme employee who had filled a temporary vacancy once the full-tIme employee returned to work. At the end of the dIscussIOn, the partIes dId not execute a wntten agreement. Ms Weese sent a letter dated August 31 1994 to Mr Hitchon, the substance of whIch IS as follows Re MeetIng of August 26/94 FIllIng temporanly of full tIme vacanCIes for long term absences At the above meetIng the dIscussIOn centred around alternatIves avaIlable to the employer to fill temporanly one permanent posItIOn due to an approved leave of absence You also IndIcated there may be a need to fill temporanly a second full tIme posItIOn due to a Worker's CompensatIOn claim ThIS IS to confirm the umon's posItIOn WIth respect to fillIng these temporary full tIme vacanCIes It IS understood that these posItIOns wIll be posted Internally That If the potentIal successful candIdate IS part tIme, that theIr semonty wIll be the determInIng factor Also that the hours worked In the full tIme posItIOn wIll be credIted for semonty purposes It IS also understood that when the full tIme employee returns to theIr posItIOn, the part tIme replacement wIll return to theIr part tIme schedule ThIS wIll not be a layoff and the part tIme person wIll not be entItled automatIcally to the first 40 hours of work. Weare also requestIng that wIth respect to the number of hours assIgned to part tIme employees, that the standard 24 hour maXImum lImIt be adhered to In the future 4 The above letter IS the "letter of agreement" referred to by Mr LaSalle In hIS gnevance It IS clear however that Ms Weese's letter IS not an agreement between the partIes and, arguably It IS merely a letter from Umon to the Employer confirmIng the Umon's posItIOn concernIng the fillIng of the temporary vacanCIes Mr LaSalle expressed an Interest In fillIng one of the temporary vacanCIes Mter the completIOn of a testIng process, Mr Hitchon advIsed Mr LaSalle that he had the opportumty to fill one of the temporary vacanCIes HavIng spoken wIth Ms Weese pnor to the meetIng wIth Mr Hitchon, Mr LaSalle understood that the partIes had agreed that a part-tIme employee who filled one of the temporary vacanCIes would return to hIS or her part-tIme posItIOn or posItIOns upon the return to work of the full-tIme employee When Mr Hitchon met wIth Mr LaSalle on November 24 1994 he presented Mr LaSalle wIth, and asked hIm to sIgn, the folloWIng Letter of UnderstandIng LETTER OF UNDERSTANDING ThIS IS a temporary Full-tIme posItIOn whIle a regular Full-tIme employee IS absent on an extended approved leave of absence All benefits normally enJoyed by a Full-tIme employee wIll apply At the end of thIS temporary penod the employee wIll have the optIOn of returmng to the Part-tIme lIst In eIther Guelph or Fergus It IS agreed that the first Full-tIme employee to return to a regular schedule wIll take the posItIOn filled by Ron LaSalle and the second Full-tIme employee to return to a regular schedule wIll take the posItIOn filled by Stephen CaIne Regular hours worked dunng thIS penod wIll be credIted to the employee on the Guelph Semonty lIst. Fergus semonty hours wIll remaIn at the total as of the date the temporary Full-tIme posItIOn commenced. 5 By sIgmng the Letter of UnderstandIng, Mr LaSalle would agree to return to only one of hIS part-tIme posItIOns at the end of the temporary penod. Mr LaSalle told Mr Hitchon that he dId not understand thIS to be the arrangement agreed to by the Umon. Mr LaSalle testIfied that Mr Hitchon told hIm that If he dId not want to fill the temporary posItIOn on the basIs of the terms In the Letter of UnderstandIng, Mr Hitchon would ask another employee to fill the temporary vacancy Mr LaSalle also testIfied that he advIsed Mr Hitchon that he would consult wIth the Umon and file a gnevance If hIS understandIng concernIng the agreement wIth the Umon was correct. Mr LaSalle SIgned the November 24 1994 Letter of UnderstandIng at the meetIng wIth Mr Hitchon and filled one of the temporary vacanCIes At the meetIng wIth Mr Hitchon, Mr LaSalle advIsed Mr Hitchon that he would take a part-tIme posItIOn at Guelph at the end of the temporary penod. Mr LaSalle testIfied that re was better off wIth a full-tIme posItIOn than wIth two part-tIme posItIOns He candIdly acknowledged that he elected to sIgn the Letter of UnderstandIng because the full-tIme posItIOn may have become permanent If the full- tIme employee dId not return. He also testIfied that he felt that there was a possibIlIty that the Employer would change ItS mInd about whether he could retaIn both of hIS part- tIme posItIOns Mr LaSalle testIfied that he belIeved that he had a nght to one of the full- tIme temporary vacancIes Although there were dIscussIOns wIthIn Umon after November 24 1994 about what would happen when the replacement penod ended, there was no eVIdence to suggest that the matter was raised agaIn wIth the Employer It was 6 only after the temporary full-tIme posItIOn ended and Mr LaSalle had resumed a part- tIme posItIOn at Guelph that he filed hIS gnevance The Umon advanced a number of submIssIOns In support ofMr LaSalle's gnevance It was argued that Mr LaSalle's employment In the part-tIme posItIOn at Fergus was termInated wIthout Just cause The Umon also maIntaIned that the Employer and the Umon agreed on August 26 1994 that a part-tIme employee would return to hIS or her part-tIme posItIOns when the temporary posItIOn ended. In ItS submISSIOn, the condItIOns whIch the Employer attached to the fillIng of the temporary vacancy were InCOnsIstent WIth thIS agreement. The Umon also argued that the Employer was estopped from relYIng on ItS management's nghts, havIng regard to ItS representatIOn at the August 26 1994 meetIng. In the Umon's VIew the Employer was not entItled to enter Into such an arrangement wIth Mr LaSalle In the face of the commItment that It had made to the Umon at the meetIng on August 26 1994 The Umon had also raised the Issue of the voluntanness of Mr LaSalle's decIsIOn to SIgn the Letter of UnderstandIng In the CIrcumstances The Employer argued that the Umon faIled to demonstrate any contraventIOn of the CollectIve Agreement wIth respect to ItS treatment of Mr LaSalle It submItted that the Umon had faIled to prove the alleged agreement between the Umon and the Employer From the Employer's perspectIve, Mr LaSalle voluntanly elected to resIgn from hIS part-tIme posItIOn at Fergus In order to obtaIn the benefit of a full-tIme posItIOn for almost a year wIth the possibIlIty that he mIght obtaIn a permanent full-tIme posItIOn. 7 In Its VIew Mr LaSalle agreed to the terms of the Letter of UnderstandIng, enJoyed the benefit of the arrangement and only gneved when It came tIme to lIve up to hIS part of the arrangement. The Umon's two maIn submIssIOns are based on ItS contentIOn that the Employer agreed at the August 26 1994 meetIng to return a part-tIme employee who had filled a temporary vacancy to hIS or her prevIOUS part-tIme posItIOns However the partIes dId not enter Into a wntten agreement settIng out theIr IntentIOns concernIng the fillIng of the temporary vacanCIes In support of ItS posItIOn, the Umon called Ms Weese to testIfy and relIed on her follow up letter dated August 31 1994 Ms Weese dId not have the benefit of the notes she took at the meetIng and she was gIven the almost ImpossIble task of tryIng to recall the specIfic detaIls of a meetIng whIch took place five years ago Ms Weese dId not belIeve that there was any dIscussIOn about part-tIme employees who held two posItIOns, at Guelph and at Fergus, and what would happen to such an employee If he or she filled the temporary vacancy The sentence In the thIrd paragraph of her follow up letter contaInIng the words "the part tIme replacement wIll return to theIr part tIme schedule" IS somewhat ambIgous HavIng regard to the substance of the letter and Ms Weese's eVIdence, It appears that the Umon and the Employer merely agreed that any part-tIme employee who filled a temporary vacancy would return to hIS or her part-tIme status Even If the Umon left the meetIng wIth the belIef that an employee In Mr LaSalle's SItuatIOn would return to both part-tIme posItIOns, the eVIdence does not support the conclusIOn that the 8 Employer was responsible for that belIef Therefore, on the eVIdence before me, I agree wIth the Employer's submIssIOn that the Umon has faIled to establIsh that Mr Hitchon specIfically agreed to return someone In Mr LaSalle's sItuatIOn to both of theIr former part-tIme posItIOns on the completIOn of the temporary assIgnment. At the November 1994 meetIng wIth Mr Hitchon, Mr LaSalle was offered the opportumty to fill a temporary full-tIme vacancy whIch was expected to last for approxImately one year SInce the CollectIve Agreement dId not address thIS sItuatIOn, Mr LaSalle dId not have a nght to fill the posItIOn. Attached to the offer to fill the temporary vacancy were certaIn condItIOns, the maIn one beIng that Mr LaSalle would return to only one of hIS part-tIme posItIOns From hIS eVIdence, It IS clear that Mr LaSalle belIeved that thIS was a desIrable opportumty and he decIded to fill the temporary vacancy Although there was a suggestIOn In the Umon' S opemng statement that Mr LaSalle sIgned the Letter of UnderstandIng Involuntanly Mr LaSalle's eVIdence dId not substantIate thIS contentIOn. Mr LaSalle dId not testIfy that the Employer refused a request for tIme for hIm to consIder the matter or to dISCUSS the sItuatIOn WIth the Umon. Mr LaSalle had the optIOn to refuse the Employer's offer and to retaIn hIS two part-tIme posItIOns For the reasons that he outlIned, he decIded to accept the offer wIth the specIfied condItIons Mr LaSalle agreed to resIgn hIS Fergus posItIOn In order to work full-tIme for a year wIth the hope that the temporary posItIOn would turn Into a full-tIme posItIOn. He dId advIse Mr Hitchon that he would gneve If hIS understandIng of what the partIes had agreed to proved to be correct. However he dId not gneve untIl he completed the temporary assIgnment and resumed a part-tIme posItIOn In Guelph. The 9 fact that events dId not turn out the way he had hoped does not InvalIdate hIS decIsIOn to resIgn hIS part-tIme posItIOn In Fergus Mr LaSalle was not termInated from hIS part-tIme posItIOn at Fergus It IS my conclusIOn that Mr LaSalle voluntanly agreed to resIgn hIS Fergus posItIOn. There IS nothIng In the CollectIve Agreement or In law whIch the Umon can rely on to successfully challenge the Employer's treatment of Mr LaSalle For the foregoIng reasons, Mr LaSalle's gnevance IS dIsmIssed. Dated at Toronto thIS 12th day of October 1999 11 Ken Petryshen - Vice-Chair