Loading...
HomeMy WebLinkAbout1996-0533.Malpage and Walker.02-03-12 Decision ~M~ om~o EA1PLOYES DE LA COURONNE _Wi iii~~~i~T DE L 'ONTARIO COMMISSION DE REGLEMENT "IIIl__1I'" BOARD DES GRIEFS Ontario 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE. (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILE/TELECOPIE. (416) 326-1396 GSB#0533/96,2828/96 UNION# 96D592, 97C155 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Malpage and Walker) Grievor -and- The Crown In Right of Ontario (Ministry of the Attorney General) Employer BEFORE Felicity D Briggs Vice-Chair FOR THE GRIEVOR George Richards Senior Grievance Officer Ontario Public Service Employees Union FOR THE EMPLOYER Andrew Baker Counsel Legal Services Branch Management Board Secretariat HEARING January 3,2001 and December 3,2001 2 In the fall of 1998 the partIes negotIated terms for the settlement of a number of gnevances filed by employees at the London Court regardmg converSIOn of theIr status from unclaSSIfied to classIfied. ThIS deCISIOn conSIders Issues relatmg to two of those employees, Paul Walker and Rosanne Malpage I turn first to the matters concernIng Paul Walker The memorandum of agreement, dated November 12, 1998 regardmg Mr Walker stated Whereas the employee and OPSEU have filed a gnevance, GSB NO 2828/96 And whereas the partIes have agreed to resolve the gnevance on a WIthout prejUdICe or precedent baSIS Therefore the partIes agree as follows 1 The Employer agrees to convert the Employee mto a claSSIfied S02 pOSItIOn WIth the London Court House as of June 24 1998 Dependmg on the operatIOnal reqmrements of the London Court House, the Employee wIll contmue to serve for a part of hIS dutIes m Elgm County 2 The Employee wIll not receIve any retroactIve payments of entItlements because of the converSIOn for the penod of June 24 1998 untIl November 16 1998 3 OPSEU and the Employee WIthdraw the above noted gnevance ImmedIately upon executIOn of thIS agreement. 4 OPSEU and the Employee hereby release and forever dIscharge the Employer ItS Employees, agents servants and office-holders from all actIOns, causes of actIOn and any hablhty whatsoever related dIrectly or mdlrectly to the above noted gnevance 5 The Employee wIll have the normal entItlements under the collectIve agreement and the OPSEU PenSIOn Plan for the purposes of any penSIOn buy- back optIOns 6 The PartIes agree that Ms Bnggs shall rem am seIzed WIth regard to any dIspute ansmg out of thIS agreement. Pursuant to thIS agreement the Employer calculated the gnevor's Contmuous ServIce Date (heremafter referred to as "CSD") to be June 15 1994 It IS thIS calculatIOn that has caused the partIes to reconvene thIS Board. In order to explam the nature of the dIspute between the partIes some hIStory IS reqmred. ThIS hIStOry was presented m the form of agreed facts 3 Mr Walker began wIth the London Court House as a Deputy BaIhffm 1981 on a fee-for- servIce baSIS On Apnl 1 1989 he was hIred as an unclassIfied court servIces officer on a part tIme baSIS He contmued to perform some work as a deputy baIhff after thIS appomtment. He became an unclassIfied Shenff Officer 1 m 1993 and no longer performed any dutIes as a baIhff The partIes agreed that, notwlthstandmg reasonable attempts to find the necessary documents, the Mimstry no longer had records for the penod Mr Walker worked on a fee-for-servlce baSIS In September 17 1990 Chair Pamela Plcher Issued a deCISIOn of the Ontano Pubhc ServIce Labour RelatIOns Tnbunal regardmg the status of certam employees (heremafter referred to as "the Plcher deCISIOn") The Tribunal found that vanous court employees, mcludmg fee-for-servlce deputy baIhffs were crown employees and pubhc servants At page 90 of that deCISIOn the Tnbunal stated For the reasons set out above for the clerks and baIhffs, the Tnbunal concludes that the deputy baIhffs eIther were appomted m accordance WIth sectIOn 8 of the P .S.A. or m any event, must be deemed to have been appomted under the P S.A. for the purposes of the defimtIOn of "pubhc servant" under sectIOn l(g) of the P.S.A. The Tnbunal therefore finds that the deputy clerks and baIhffs are "person[s] appomted under the [P.S.A] to the servIce of the Crown by the LIeutenant Governor In CouncIl Or by a mlmster and are therefore "pubhc servants" wlthm the meamng of sectIOn l(g) of the P.S.A. and sectIOn 1 (l)(m) of C.E C.B.A. There were no ImmedIate steps taken by the partIes to deal WIth the gnevor's status after the Plcher deCISIOn. However on November 7 1994 the partIes agreed to a Memorandum of Agreement for court employees that stated The partIes agreed as follows 1 DISCUSSIOn of all outstandmg penSIOn Issues to be contmued by the partIes at a date to be agreed upon. 2 Pay eqmty adjustments apphcable to ehglble salaned small claims court employees to be retroactIve to January 1 1990 4 3 Date for calculatIOn of severance entItlements wIll be the date of hIre 4 Semonty for the purposes of ArtIcle 4 & 24 wIll be calculated from the date of gnevance (October 30 1984) or date of hIre, whIchever IS later 5 All ehglble (converted) employees to be placed at the maXImum of the salary gnd for theIr classIficatIOn effectIve Apnl 1 1995 6 VacatIOn entItlement wIll be calculated as follows for all employees converted to claSSIfied servIce (a) For salaned small claims court employees . Accrual of vacatIOn credIts to be based on the rate of accrual m effect pnor to converSIOn. . For 1993 & 1994 the dIfference between the former accrual rate and post converSIOn rate wIll be calculated and banked to the employee's credIt for January 1 1995 . At no tIme wIll an employee be paid out m excess of one year's accrual . Management wIll faclhtate the scheduhng of tIme off, and pnonty wIll be gIven to employees mJeopardy oflosmg banked credIts . In all cases, banked vacatIOn credIts wIll be utlhzed wlthm 3 years of the sIgmng of thIS agreement. . Employees who subsequently left the servIce wIll be ehglble for a vacatIOn payout to a maXImum of one year's accrual mmus any payments made for outstandmg vacatIOn credIts (b) For all other employees converted to claSSIfied staff . EffectIve January 1 1995 vacatIOn accrual entItlements wIll be calculated from October 30 1984 or date of hIre, whIchever IS later 7 The partIes agree to reconvene to dISCUSS Issues ansmg out of the ImplementatIOn of thIS agreement. 8 The partIes recogmze that all claSSIficatIOn gnevances resultmg from the ImplementatIOn of the Tnbunal deCISIOn have been stopped under the proVISIOns of the SOCIal Contract agreements 9 In full settlement of retroactIve entItlement to statutory hohday and vacatIOn pay overtIme and retroactIve salary and benefits, each converted employee to receIve a lump sum settlement of $5 500 by separate cheque 10 The Employer undertakes to have payments made as soon as pOSSIble, but m no case later than 90 days of the sIgmng of thIS agreement. 11 The partIes agree that no mterest IS to be calculated of paid on Items outhned m thIS settlement. Attached to thIS settlement was a table of Tnbunal ConverSIOn Dates for those employees converted to claSSIfied status The dates (and explanatIOn of the dates) set out for BaIhffs were 5 Crown Employee Date - June 24 1988 - ThIs IS the date of the award m whIch the Pubhc ServIce Ontano Labour RelatIOns Tnbunal determmed court employees to be Crown employees, (or the date of hIre If the employee started after the date) Public Servant Date - September 17 1990 - ThIS IS the date of the award m whIch the Pubhc ServIce Ontano Labour RelatIOns Tnbunal determmed court employees to be Pubhc Servants The date IS the same for all employees, September 17 1990 (unless the employee started after thIS date but before converSIOn, m whIch case the date would be the start at work date) Civil Servant Date - Apnl 1 1993 - ThIS date apphes only to persons converted mto Full-Time claSSIfied pOSItIOns Seniority Date - October 30 1984 - For the purposes of ArtIcles 6 (Postmg and filhng of vacancIes) and 20 (Employment Stablhty) of the collectIve agreement thIS date IS calculated from October 30 1984 (the date of the ongmal gnevance) or the date the court employee was first employed, whIchever IS later If the employee was not converted to Full-Time claSSIfied status or was converted mto a management pOSItIOn then thIS date IS not apphcable Legislative Severance Date - date of hIre - ThIS IS the date that the court employee first became employed (Date of Hire) m Mimstry related dutIes m one of the categones covered by the Tnbunal deCISIOn. It IS used for legIslatIve severance pay purposes Enhanced Severance Date - October 30 1984 - The Memorandum of Agreement for OPSEU employees, dated November 7 1994 speCIfies a speCIfic date for the purposes of ArtIcle 6 and 20 (prevIOusly Art 4 & 24) of the collectIve agreement, and smce Enhanced Severance IS hnked to ArtIcle 20 (surplused employees) thIS IS the date that should be used to calculate Enhanced Severance, or the date court employee was first employed whIchever IS later Vacation Credits - October 30 1984 - For Salaned Small Claims court employees, accrual of vacatIOn credIts IS based on the rate of accrual m effect pnor to converSIOn, Ie the date of hIre or the date the court became a salaned court, whIchever IS later For all other court employees converted to claSSIfied staff - accrual entItlement IS calculated from October 30 1984 or the date the court employee was first employed, whIchever IS later If the employee was not converted to Full-Time claSSIfied status then the date IS not apphcable 6 After the memorandum of agreement the partIes Issued a Jomt announcement. That announcement stated On November 4 1994 the Employer and OPSEU reached a tentatIve settlement on retroactIvIty for court employees covered by the September 1 ih 1990 Pubhc ServIce Labour RelatIOns Tnbunal DeCISIOn. The settlement has now been gIven final approval by both OPSEU and the government. The followmg IS a summary of the settlement A) PERSONS AFFECTED BY THE SETTLEMENT . OPSEU members who became claSSIfied or unclassIfied employees as a result of the ImplementatIOn of the Tnbunal's ruhng mcludmg those persons who have subsequently left the pubhc servIce . Generally speakmg, thIS would cover former freelance court reporters and a few mterpreters fee baIhffs and shenff officers and employees of both fee and salaned Small Claims Courts, who were brought mto claSSIfied and unclassIfied bargammg umt pOSItIOns B) PERSONS NOT COVERED BY THE SETTLEMENT . Former fee for servIce mdlvlduals who were eIther not ehglble, or who otherwIse were not brought mto the pubhc servIce at the tIme of the ImplementatIOn of the Tnbunal deCISIOn for theIr partIcular group . Persons placed m pOSItIOns not represented by OPSEU C) OUTSTANDING ISSUE NOT COVERED BY THIE SETTLEMENT . OPSEU and Management Board Secretanat have agreed to contmue negotIatIOns regardmg outstandmg penSIOn Issues . Gnevances regardmg penSIOn entItlements remam actIve pendmg the outcome of the penSIOn negotIatIOns D) THE TERMS OF THIS SECTION ARE APPLICABLE FOR ALL GROUPS AS DEFINED ABOVE . The date of ongmal hIre (as a fee or salaned court worker) wIll be used for the purposes of calculatmg severance entItlements when the employee leaves the Pubhc ServIce . Semonty for the purposes of ArtIcles 4 and 24 (competItIOns and Job secunty proVISIOns) wIll be calculated from the date of the gnevance (October 30 1984) or the date of hIre for those persons startmg after that date . EffectIve Apnl1 1995 employees wIll be placed at the maXImum salary level for the claSSIficatIOn mto whIch they were converted. 7 . A smgle payment of $5 500 less statutory deductIOns, wIll be made to every employee covered by the settlement m full settlement of retroactIve entItlements to statutory hohday and vacatIOn pay retroactIve overtIme, salary and all other benefits other than penSIOn. . ThIS payment wIll be made wlthm 90 days by a separate cheque . The partIes agree that no mterest IS to be calculated or paid on Items outhned m thIS settlement. . The partIes recogmze that all claSSIficatIOn gnevances, resultmg from the ImplementatIOn of the Tnbunal deCISIOn, have been estopped under the proVISIOns of the SOCIal Contract. . The partIes agree to reconvene to dISCUSS Issues out of the ImplementatIOn of thIS settlement. E) IN ADDITION FOR PERSONS COVERTED TO FULL TIME CLASSIFIED POSITIONS . As of January 1 1995 entItlement for vacatIOn accrual wIll be calculated from October 30 1984 or the actual date of hIre for persons who started after that date F) IN ADDITION FOR STAFF OF THE TEN SALARIED COURTS . Any pay eqmty adjustments apphcable to salaned Small Claims Court employees who were converted to the Office AdmmlstratIOn group wIll be calculated and paid retroactIvely to January 1 1990 . Accrual of future years of vacatIOns credIts to be based on the rate of accrual pnor to converSIOn for all employees converted to full tIme claSSIfied pOSItIOns (in heu ofE above) . On January 1 1995 addItIOnal vacatIOn credIts wIll be banked to the employee's credIt, representmg the dIfference between the vacatIOn credIts the employee was earnmg at the tIme of converSIOn, ad the actual credIts they were granted dunng 1993 and 1994 . All excess banked vacatIOn credIts above the allowable number that may be carned forward, must be utlhzed pnor to January 1 1998 . Managers wIll faclhtate the scheduhng of these excess vacatIOn credIts and pnonty wIll be gIven to employees mJeopardy oflosmg the addItIOnal credIts . Employees who left the pubhc servIce, after converSIOn to full tIme claSSIfied pOSItIOns, wIll be ehglble for a vacatIOn payout to a maXImum of one year's accrual, mmus any payments made for outstandmg vacatIOn credIts . At no tIme wIll a cash payout be made for more than one year's credIt of vacatIOn tIme A further Jomt commumcatIOn was Issued on June 10 1996 It stated 8 I am wntmg to clanfy the mterpretatIOn of the agreement reached between OPSEU and MBS on those court employees affected by the PSLRT deCISIOn of September 17 1990 The Mimstry of the Attorney General wIll be applymg the agreement m the followmg manner 1 ProVISIOns 5 6 and 9 of the agreement - whIch speCIfy "converted" employees - wIll be extended to any employees who were employed on a fee- for-servIce baSIS pnor to recelvmg a contract or claSSIfied pOSItIOn after September 17 1990 2 Those proVISIOns m the agreement whIch do not speCIfy "converted" employees wIll be extended to all ehglble employees (ie Employed as eIther salaned small claims court or fee-for-servlce between the dates of October 30 1984 and September 16 1990) 3 ProVISIOn 8 apphes to those classIficatIOn gnevances filed WIth respect to the converSIOn of pOSItIOns In February of 1995 the gnevor and hIS supervISor SIgned a form that set out a vanety of dates that apphed to Mr Walker In that "employment summary" It was stated. Date of hIre (for severance pay purposes) May 1981 Crown Employee Date - June 24 1988 Pubhc Servant Date - Sept. 17 1990 CIvIl Servant Date - N/A Semonty Date - N/A VacatIOn EntItlement Date - N/A Placement at the maXImum salary gnd - Apnll 1995 In 1996 Mr Walker amongst others, filed a gnevance allegmg that he should be converted to claSSIfied status and that led to the memorandum of agreement at Issue His actual converSIOn was effectIve June 24 1998 After bemg converted the Employer calculated the gnevor's CSD under artIcle 18 1 of the collectIve agreement WIth November 6 1989 as a start date Mr Walker had approxImately 210 weeks of full tIme unclaSSIfied servIce These dates led to the Employer's ultImate determmatIOn of June 15 1994 as the appropnate CSD for the gnevor The gnevor dId receIve the $5 500 payment proVIded at paragraph mne of the November 7 1994 memorandum of settlement. Finally WIth respect to the facts necessary to 9 determme thIS matter It was undIsputed that the gnevor never actually receIved an "appomtment" to unclassIfied status Relevant provISIOns of the collectIve agreement are ArtIcle 18 - Semonty (Length of Contmuous ServIce) 18 1 An employee's length of contmuous servIce wIll accumulate upon completIOn of a probatIOnary penod of not more than mne (9) months and shall commence (a) from the date of appomtment to the ClassIfied ServIce for those WIth no pnor servIce m the Ontano Pubhc ServIce or (b) from the date estabhshed by addmg the actual number of full-tIme weeks worked by a full-tIme unclaSSIfied employee dunng hIS or her full-tIme employment back to the first break m employment whIch IS greater than thIrteen (13) weeks, or (c) UNION SUBMISSIONS The Umon began by remmdmg the Board that It reconvened to determme a dIspute between the partIes regardmg an ImplementatIOn Issue flowmg from the memorandum of agreement that resolved Mr Walker's gnevance In accordance WIth that agreement the gnevor was converted to claSSIfied status and the Employer calculated a contmuous servIce date The gnevor and the Umon take Issue WIth the CSD estabhshed by the Employer Mr RIchards, for the Umon, submItted that the Plcher deCISIOn of September 17 1990 made clear that certam employees, mcludmg the gnevor who were workmg on a fee-for- servIce baSIS were both pubhc servants and CIvIl servants They were declared to be members of the bargammg umt. Accordmgly they had status under the collectIve agreement. Followmg that deCISIOn the partIes negotIated an arrangement whereby employees would receIve recogmtIOn for past servIce The gnevor receIved some benefit from that memorandum of agreement, speCIfically the $5500 dollars referred to m paragraph 9 However because he was unclaSSIfied at the tIme the memorandum of 10 agreement was executed, he dId not receIve any recogmtIOn of the tIme he spent workmg on a fee-for-servlce basIs It was the Umon's posItIOn that the gnevor was an employee smce the begmmng of hIS employment as a fee-for-servlce deputy baIhff and not merely smce the Issuance of the Plcher Tnbunal decIsIOn m 1990 On thIS pomt, the Umon provIded the Board wIth a GSB decIsIOn Re The Crown in Right of Ontario and OPSEU (Zuibrycki) (September 6 1978) unreported (Swan) In that case the gnevor sought to be declared an employee under the Crown Employees Collective Bargaining Act. It was determmed by the Pubhc ServIce Labour RelatIOns Tnbunal that he was an employee Pnor to that decIsIOn he filed complamts or gnevances whIch ultImately proceeded to the Gnevance Settlement Board. The Employer took Issue WIth the JunsdlctIOn of the Board to hear and determme the gnevances because the gnevor was not an employee at the tIme he filed the gnevances The prehmmary motIOn was demed by the Board. Vice Chair Swan Said on page 14 that such a deCISIOn of the Tnbunal IS "merely declaratory of a pre-exlstmg status, created by the statute or by the collectIve agreement" The Board also Said Fmally then, we come to the Issue of the effectIve date of the gnevor's membershIp m the bargammg umt. The Tnbunal made ItS determmatIOn that he was an employee on Apnl 18 1977 We make our determmatIOn that he IS a person mcluded m the bargammg umt on the date of thIS award. The Employer's argument IS that the first of these determmatIOns (and probably the second as well) has force only from the date on whIch It IS made Followed stnctly thIS approach would gIve the gnevor employee status only from the date of the Tnbunal deCISIOn and bargammg umt membershIp only from the date of our award. With respect, thIS over-estImates the respectIve JunsdlctIOns of the Tnbunal and thIS Board. The Tribunal cannot create employees out of mere CItIzens, It can only apply the statutory defimtIOn already Imposed by the legIslature and determme whether an mdlvldual fits wlthm that defimtIOn. SImIlarly we cannot expand the agreed bargammg umt to mclude any employee we can only construe the collectIve agreement to see whether the partIes have already done so It follows that the gnevor's employee status dates from the ImplementatIOn of the Act, and hIS bargammg umt membershIp from the effectIve date of the first Workmg CondItIOns CollectIve Agreement, January 28 1976 Both of these pre- date the gnevor's complamts, and so those complamts are properly gnevances under the collectIve agreement and thus arbItrable before the Gnevance 11 Settlement Board. ThIs gnevor IS thus entItled to have hIS gnevances heard on the ments, and that heanng wIll take place at a tIme to be notIfied by the RegIstrar SImply put, It was the Umon's contentIOn that the gnevor was entItled to have all hIS fee- for-servIce employment taken mto account when the Employer calculated hIS contmuous servIce date upon hIS converSIOn m 1998 In the memorandum of agreement dated November 7 1994 the partIes agreed that classIfied employees would receIve the semonty date of October 30 1984 The gnevor was not classIfied at that tIme and accordmgly he was not then entItled to have hIS servIce taken mto account. As of June 10 1996 the partIes extended certam of the negotIated proVISIOns to other employees However the tIme thIS memorandum was executed the fee-for-servlce penod of the gnevor's employment was not taken mto account because he was not entItled to semonty due to hIS unclaSSIfied status The Umon suggested that the gnevor IS entItled to the "latent affect" of thIS benefit. That IS to say that whIle he could not receIve the benefits of the Memorandum of Agreement regardmg semonty because he was unclaSSIfied at the tIme It was executed, that benefit should have been conferred upon hIm at the pomt m tIme that he was claSSIfied m 1998 The Umon asserted that the June 10 1996 letter of clanficatIOn IS a clear mdlcatIOn that the partIes meant that the proVISIOns of the November 7 1994 memorandum would be apphed prospectIvely That IS preCIsely what Mr Walker IS askmg be apphed m thIS mstance The gnevor must get conSIderatIOn for the penod of hIS fee-for-servlce work when calculatmg hIS CSD To do otherwIse IS to deny hIm a benefit enjoyed by other employees The Employer should have gone through the same process m determmmg CSD for Mr Walker m 1998 that It went through for the newly claSSIfied employees m 1994 The Umon submItted that the Employment Summary SIgned by the gnevor m February of 1995 IS of no aSSIstance to thIS Board and should be afforded no weIght. NeIther the 12 gnevor nor hIS supervIsor were labour relatIOns practItIOners and the form IS, SImply put, wrong. The document cannot be conSIdered to be a Waiver of any nght to benefits under the collectIve agreement. In conclUSIOn, the Umon requested that the Board uphold the gnevor's pOSItIOn and order the Employer to re-calculate Mr Walker's CSD takmg mto account hIS fee for servIce work. There are other benefits that would flow from such a deCISIOn such as vacatIOn entItlement but the partIes agreed that the Issue of remedy If any should be returned to the partIes to determme EMPLOYER SUBMISSIONS It was the Employer's pOSItIOn that I am WIthout JunsdlctIOn to conSIder thIS matter on the ments However Mr Baker suggested that, m order to appreCIate the admIttedly "techmcal" JunsdlctIOnal argument, It would be best to argue the prehmmary matter at the conclUSIOn of hIS submISSIOns regardmg the ments of the dIspute The Employer contended that the dIspute between the partIes IS qmte narrow That IS, what IS the appropnate CSD for the gnevor at the pomt that he was converted m 1998 In large measure the Umon's argument stems from ItS allegatIOn that the gnevor's "Pubhc Servant Date" IS October 30 1984 and not September 17 1990 as set out m Mr Walker's Employment Summary It IS the Employer's assertIOn that the only effect of the Plcher deCISIOn m thIS matter was to bnng the gnevor mto the bargammg umt. There was nothmg m her deCISIOn that proVIded the gnevor WIth any more semonty than he had at the tIme he was converted m 1998 Indeed, the Tribunal deCISIOn makes no comment at all regardmg the Issue of semonty The document that estabhshes the gnevor's Pubhc Servant Date IS the agreement between the Umon and the Employer dated November 7 1994 At paragraph 4 of that agreement, the partIes conSIdered semonty To be clear the partIes agreed m that document that those employees about to be converted have a Pubhc Servant Date of 13 October 30 1984 By all accounts, that date was agreed to arbltranly because of a lack of mdlvldual records However none of thIS apphed to the gnevor because he was unclassIfied at the tIme of thIS agreement. Therefore It cannot be Said that eIther the Tnbunal decIsIOn or the November 7 1994 agreement gave the gnevor semonty or the promIse of semonty m the future The Employer further urged that It IS clear from the Tnbunal ConverSIOn Dates table attached to the November 7 1994 agreement that the gnevor's Pubhc Servant Date IS September 17 1990 The Umon cannot now persuade thIS Board that the partIes made a mIstake The Employment Summary that Mr Walker SIgned m 1995 merely confirms thIS date Mr Baker suggest that the Zuibrycki case (supra) IS of httle aSSIstance m thIS matter In that mstance the partIes were dlsagreemg over effectIve dates In the mstant matter the partIes agreed on the effectIve date of September 17 1990 m theIr November 7 1990 memorandum of agreement. It would appear that the Umon IS trymg now to resIle from that now seven year old agreement. The Employer strongly dIsagreed WIth the Umon's suggestIOn that the Letter of ClanficatIOn SIgned by both partIes m 1996 clearly estabhshes the gnevor's nght to have hIS fee-for-servlce tIme factored mto hIS CSD at a later tIme Indeed, a reVIew of that document shows that certam benefits were conferred upon partIcular employees Unfortunately for the gnevor he was stIll unclaSSIfied at the tIme and so he could not take advantage of semonty for the purposes of CSD In the alternatIve, Mr Baker asserted that even If paragraph 4 of the November 7 1994 memorandum of agreement apphed to the gnevor It only dealt WIth "semonty for the purposes of ArtIcles 4 and 24" ArtIcle 18 the artIcle that sets out how to estabhsh the length of contmuous servIce, IS not referenced and therefore would not apply Regardmg the JunsdlctIOnal obJectIOn, It was the Employer's VIew that the Umon IS askmg thIS Board to determme that the tIme the gnevor worked m hIS fee-for-servlce 14 posItIOn was actually unclassIfied servIce m effect to change the gnevor's status retroactIvely The Employer took no Issue regardmg my jUnSdlctIOn to examme whether the Employer has properly apphed artIcle 181m determmmg the gnevor's CSD However I can only conSIder the tIme the gnevor was unclassIfied and not the penod that he worked on a fee-for-servlce baSIS The Employer revIewed the current legIslatIOn to estabhsh that the Gnevance Settlement Board does not have the jUnSdlctIOn to determme employee status Such dehberatIOns are properly put before the Ontano Labour RelatIOns Board. However m order to have employee status exammed a person must be an employee under the Public Service Act R. S 0 1990 c P-47 ArtIcle 8 of the Act states, m part (1) An mdlvldualls not conSIdered to be a CIvIl servant unless he or she has been expressly appomted as such by the CommISSIOn or by the LIeutenant Governor m CouncIl or on the certIficate of the CommISSIOn. (2) An mdlvldual IS not conSIdered to be a pubhc servant unless he or she has been expressly appomted as such by the LIeutenant Governor m CouncIl, the CommISSIOn, a mlmster or a deSIgnee of a mlmster (3) An mdlvldual who IS employed m the servIce of the Crown IS not conSIdered to be a Crown employee unless the mdlvldual has been expressly appomted as such by the LIeutenant Governor m CouncIl, the CommISSIOn or a mlmster (10) In the absence of an express appomtment of an mdlvldual as a CIvIl servant, pubhc servant or Crown employee, the mdlvldual's appomtment shall not be mferred solely from the CIrcumstances of hIS or her employment. It was the Employer's pOSItIOn that It IS clear from the current legIslatIOn that the Gnevance Settlement Board cannot Imply the appomtment of employee status upon an mdlvldual Any deSIgnatIOn of an mdlvldual as a pubhc servant, a CIvIl servant or a crown employee must be done by "express appomtment" by the CommISSIOn or the LIeutenant Governor-m CouncIl In thIS case, there IS agreement between the partIes that the gnevor was not so expressly appomted to work when he acted as a fee-for-servlce deputy baIhff Therefore thIS matter must be dIsmIssed. In reply to the Employer's jUnSdlctIOnal argument the Umon asserted that there IS no need for thIS Board to Imply or declare the gnevor to have been an employee whIle he worked on a fee-for-servlce baSIS as a deputy baIhff because the Plcher deCISIOn dId so 15 years ago Indeed, the gnevor's status was determmed long before the legIslatIOn rehed upon by the Employer was enacted. The Umon IS not askmg for retroactIve adjustments The Employer IS suggestmg that the Plcher Tnbunal deCISIOn has no affect. The legIslatIOn rehed upon by the Employer IS prospectIve only There was no stated retroactIve apphcatIOn. Indeed, the Issue of the gnevor's status IS, m the Umon's VIew res judicata, The legIslatIOn dId not undo the Plcher deCISIOn. The partIes were agreed that my jUnSdlctIOn denves from the ongmal gnevance and the memorandum of settlement that resolved the dIspute That agreement allows the Board to look to artIcle 18 1 (b) to determme whether the Employer properly calculated the gnevor's CSD mcludmg, suggested Mr RIchards, the tIme he spent workmg on a fee- for-servIce baSIS The Umon submItted m reply that the ConverSIOn Table set out m the Memorandum of Agreement SIgned November 7 1994 was for claSSIfied employees and the gnevor was not claSSIfied untIl 1998 SpeCIfically It was Said m the note explammg Semonty Date that "If the employee was not converted to Full-Time status or was converted mto a management pOSItIOn then thIS date IS not apphcable" That merely underscores that the October 30 1984 date does not apply to the gnevor at that tIme However It was apphcable at the pomt m 1998 that Mr Walker was converted. Further It IS Immatenal that artIcle 18 IS not mentIOned m the 1994 Memorandum of Agreement. Where reference was made to artIcles 4 and 24 artIcle 18 must be seen to be mcorporated by reference The partIes dId not fall to deal WIth the Issue of length of servIce they merely found It unnecessary to refer to It speCIfically m that context. DECISION I turn first to the Employer's prehmmary ObjectIOn regardmg my jUnSdlctIOn. Mr Baker opted to make hIS argument m thIS regard after hIS submISSIOns on the ments I understand the neceSSIty of that approach, because, to some extent the prehmmary argument and the ments of thIS dIspute are mterwoven. The Employer asserted that I am 16 wIthout jUnSdlctIOn to hear and determme thIS matter because the Umon IS askmg me, m affect, to "appomt" the gnevor retroactIvely to the status of an unclassIfied employee for the penod that he worked as a fee for servIce baIhff After consIderatIOn I am of the VIew that the prehmmary ObjectIOn must fall It IS not the Umon's pOSItIOn that the gnevor was an unclassIfied employee at the tIme that he worked on a fee for servIce baSIS It IS the Umon's VIew that the work Mr Walker performed dunng thIS penod should be taken mto account for the purposes of estabhshmg hIS contmuous servIce date WhIle the Employer argued that thIS IS a dlstmctIOn WIthout much of a dIfference the dIfference IS sIgmficant when the Board's jUnSdlctIOn IS at Issue I agree WIth the Umon's submIsSIOn that the Plcher deCISIOn estabhshed that the gnevor and other fee for servIce deputy clerks and baIhffs were "deemed appomted" as pubhc servants That hIStOry has not been changed WIth the enactment of the current legIslatIOn. The Umon IS not askmg me to appomt the gnevor to CIvIl or pubhc servant status They are merely askmg me to apply the affect of the gnevor's employment status as It was deCIded by Chair Plcher m 1990 I do agree WIth the Employer that If the Issue that was before Chair Plcher were put before me m the context of the present legIslatIve regImen, I would lack the jUnSdlctIOn to make the deCISIOn made m 1990 However as stated preVIOusly that IS not what IS bemg asked of me m the mstant matter After conSIderatIOn of the ments of the dIspute I cannot agree WIth the Umon's VIew and requested remedy The Umon has suggested that the gnevor upon hIS converSIOn to claSSIfied status m 1998 should be allowed to enforce nghts that gIven to partIcular employees years before That SImply makes no sense m law and It makes no labour relatIOns sense ObVIOusly some settlements have prospectIve apphcatIOn. However If agreements are meant to have future apphcatIOn the partIes are very clear m the language they chose There was no such agreement m the memorandum of agreement SIgned by the partIes m November of 1994 or m the jomt commumcatIOn extendmg the agreement that was Issued m June of 1996 Indeed, absent the jomt commumcatIOn that was Issued m 1996 17 the benefits would not have been extended. It must be clear that any further extenSIOn of those nghts would reqUire another agreement between the partIes and there IS certamly no such agreement m the mstant case In 1994 and 1996 the partIes decIded that certam employees would receIve partIcular benefits Mr Walker was covered by those agreements accordmg to the sectIOn entItled "Persons affected by the settlement" Indeed, m accordance WIth those agreements he receIved $5500 However he dId not receIve the benefit of the semonty proVISIOns because he was unclassIfied at the tIme The gnevor cannot now years later go back and seek to claim the benefits that he was not entItled to m 1996 The Umon descnbed ItS pOSItIOn as merely askmg for the "latent affect" of thIS benefit. In my VIew there IS nothmg m any of the documents before me that would allow me to find that those semonty benefits should have been conferred upon the gnevor at the tIme that he was claSSIfied m 1998 Mr Walker's gnevance was resolved by the partIes m November of 1998 After hIS converSIOn the Employer calculated hIS contmuous servIce date based on the terms of artIcle 18 of the collectIve agreement. In my VIew that calculatIOn was done correctly Therefore, the Umon's request for Mr Walker IS demed. I now turn to the gnevance ofMs Malpage The memorandum of settlement entered mto for Ms Malpage's gnevance was dated October 7 1998 and stated the followmg Minutes of Settlement and Release Between OPSEU And Rosanne Mal page And The Crown m RIght of Ontano (as represented by the Mimstry of the Attorney General) Whereas OPSEU and the Employee has filed a converSIOn gnevance OPSEU No 96D592 18 And Whereas the partIes have agreed to resolve all the matters ansmg dIrectly or mdlrectly out of the gnevance on a wIthout prejUdICe or precedent basIs as follows 1 The Employer wIll a) convert Rosanne Mal page to a claSSIfied Rehef JudIcIal Secretary/Documents Clerk OAG 6 level effectIve Apnll 1996 b) Calculate the employee's semonty m accordance WIth ArtIcle 18 1 of the collectIve agreement; c) CredIt the employee WIth vacatIOn days from the date of appomtment to the claSSIfied servIce Such credIts wIll be based on the dIfference between the 2 weeks per year the employee has already receIved (as an unclassIfied employee) and the amount that would have been due If the employee were m the claSSIfied servIce from the date of appomtment stated above The employer reserves ItS management nghts to approve any vacatIOn requests related to any such credIts d) Allow the employee to purchase pensIOnable servIce m accordance WIth the OPSEU penSIOn plan. The Employer agrees to contnbute ItS share of penSIOn premIUms effectIve Apnl 1 1996 2 OPSEU and the Employee wIll WIthdraw all outstandmg gnevances nled m relatIOn to her converSIOn to the claSSIfied servIce All outstandmg gnevances wIll be conSIdered fully settled and OPSEU and the Employee wIll not commence any further actIOn m relatIOn to them If the employee does not agree WIth hIS claSSIficatIOn he mamtams hIS nghts pursuant to artIcle 22 12 1 3 OPSEU agrees that any converSIOn of employees to the claSSIfied servIce at the London Court House from Apnl 1 1996 to the date of executIOn of thIS agreement are WIthout prejUdICe and shall not be used as a precedent many current or future gnevances 4 OPSEU agrees that umon pohcy gnevances U309 and 95U033 have been fully settled, and that there are no further claims ansmg from them 5 OPSEU and the Employee hereby release and forever dIscharge the Employer ItS employees, agents and officers of and from all actIOns, causes of actIOn, claims and demands of ever nature and kmd ansmg dIrectly or mdlrectly out of the allegatIOns contamed m the above noted gnevance, mcludmg but not hmlted to any claims under the Employment Standards Act, Public Service Act and Human Rights Act, 6 The partIes agree that these Minutes of Settlement and Release constItute the entIre agreement between them and supersede any and all wntten agreements, arrangements or understandmgs between the partIes m connectIOn WIth or mCldental to the above noted gnevances 7 The Employee acknowledges that she fully understands the terms and condItIOns of these Minutes of Settlement and Release, and that she voluntanly accepts the Said terms and condItIOns after an opportumty to seek and obtam mdependent adVIce on any and all matters reqUITIng clanficatIOn. 8 The PartIes agree that Vice-Chair Bnggs shall remam seIzed of thIS matter should any problems anse, dIrectly or mdlrectly as a result of Implementmg thIS agreement. 19 Ms Malpage began wIth the Employer on Apnl 24 1991 She was converted on Apnl 6 1996 Subsequent to thIS memorandum the Employer determmed Ms Malpage's Contmuous ServIce Date to be September 2, 1991 It was the Umon's pOSItIOn that Apnl 24 1991 IS the correct date Dunng our heanng mto thIS matter Mr RIchards asserted, as a fact that there had been another group of employees who had been converted to claSSIfied status pnor to Ms Malpage He referred to thIS group as "Haggerty et al" Mr RIchards stated that when those employees were converted from unclassIfied servIce to the CIvIl servIce theIr CSD dated back to the first date of theIr first contract WIth the Employer Ms Funnell, for the Employer dId not deny that assertIOn. However It was stated that those calculatIOns were made m error and would be corrected. It was the Umon's pOSItIOn that Ms Malpage should be treated m a fashIOn conSIstent WIth the "Haggerty et al" employees To do otherwIse IS to dIsadvantage the gnevor It was the Employer's VIew that a clencal error was made that affected the Haggerty group and that error should not be perpetuated by thIS Board. The Umon's second argument regardmg Ms Malpage's mcorrect CSD was that the Employer dId not take mto account the affect of the stnke m 1996 ArtIcle 18 1 (b) contemplates "weeks worked" for semonty calculatIOn. The gnevor's tIme sheets mdlcate that no hours were worked dunng the penod of the stnke It was conceded that It mIght be argued that pIcket duty should not be counted for these purposes However artIcle 18 l(b) must be read m conjUnctIOn WIth the "Return to Work Protocol" In that document, dated March 26 1996 It was stated at paragraph 3 3 Semonty wIll accrue for all employees m the bargammg umt dunng the penod of the stnke It was conceded by Mr RIchards that at the tIme that the Return to Work Protocol was executed the gnevor was not a CIvIl servant. She was converted almost two years subsequent to March 26 1996 However at the pomt that she was converted, the 20 Employer should have taken all hours, mcludmg those that fell dunng the stnke, mto account when calculatmg the gnevor's semonty m accordance WIth artIcle 18 1 To do otherwIse would be to dlscnmmate agamst unclassIfied employees The mtent of the Return to Work Protocol was to ensure that all employees were not penahzed for wlthdrawmg theIr servIces for that penod of tIme Therefore, "weeks worked" m artIcle 18 1 of the collectIve agreement must be read m conjUnctIOn WIth artIcle 3 3 of the Return to Work Protocol SImply put, It was the Umon's pOSItIOn that the gnevor was entItled to a "latent apphcatIOn" of the Return to Work Protocol at the tIme she was converted. WhIle the Employer agreed that the Return to Work Protocol stated that semonty would accrue for "all employees" It was submItted that semonty only apphes to claSSIfied employees The gnevor was unclassIfied at that tIme and therefore could not have receIved the benefit of paragraph 3 3 DECISION My jUnSdlctIOn to determme whether the Employer's calculatIOn of Ms Malpage's CSD IS correct flows from the Memorandum of Settlement SIgned by the partIes on October 7 1998 In that agreement, the partIes stated that the Employer would "calculate the employee's semonty m accordance WIth ArtIcle 18 1 of the collectIve agreement" Havmg regard to my jUnSdlctIOn, both assertIOns made by the Umon on behalf of Ms Malpage must fall I have set out my reasons for denymg a request for "latent apphcatIOn" of benefits earher m my deCISIOn regardmg Mr Walker's gnevance The same holds true m these CIrcumstances ArtIcle 18 1 of the collectIve agreement states m clear terms how semonty IS to be calculated. I am restncted to an mterpretatIOn of artIcle 181m determmmg whether the 21 Memorandum of Agreement has been correctly Implemented. How other employees m other CIrcumstances were treated regardmg theIr converSIOn IS not an appropnate conSIderatIOn for thIS Board gIven the terms and proVISIOns of the Memorandum of Agreement. WhIle I can certamly apprecIate that thIS mIght cause frustratIOn for the gnevor I find that the Employer has properly Implemented the terms of the Memorandum of Agreement regardmg the calculatIOn ofMs Malpage's CSD Dated at Toronto thIS lih day of March, 2002 Fehclty D Bnggs, Vice-Chair