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HomeMy WebLinkAbout1996-0103WILSON97_08_19 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE BOO, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (418) 328-1388 180, RUE DUNDAS OUEST BUREAU 800, TORONTO (ON) M5G 1Z8 FACS/MILE/TELECOPIE (418) 328-13ge GSB # 103/96 OPSEU # 96B407 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Wilson) Grievor - and - the Crown in Right of Ontario (Ministry of Health) Cobourg-Lakeshore Ambulance Service Employer BEFORE S L. Stewart Vice-Chair FOR THE N Roland UNION Counsel Roland & Jacobs Barristers & Solicitors FOR THE H Oldham EMPLOYER Counsel Fraser & Beatty Barristers & Solicitors HEARING June 3, 1997 DECISION In a grievance dated March 31, 1996, Mr M. Wilson claims a violation of Article 11 02 and Schedule B of the Collective Agreement There was no objection to my jurisdiction to hear an determine the grievance. The parties were able to agree to the relevant facts. Mr. wilson was hired as a part-time ambulance attendant in May, 1992. He obtained a full-time position on June 26, 1995 The dispute between the parties relates to Mr. Wilson's seniority as a full- time employee The following provisions of the Collective Agreement are relevant to the dispute between the parties Schedule liB" 1 Part-time employees are those who work twenty-four (24) hours or less per week for seven (7) or more weeks having regard to. (a) the seven (7) weeks preceding the date in question; and (b) the six (6) weeks following the date in question 2 Part-time employees shall not be employed if such will directly result in the lay-off of a full-time employee 3 The probationary period for part-time employees shall be one thousand and forty (1,040) hours The employment of such employees may be terminated at any time during the probationary period, without recourse to the grievance procedure 4 Part-time employees shall accumulate seniority at the rate of one ( 1) year per thousand, nine hundred and twenty (1,920) hours. 2 5 Qualified part-time employees will be considered for full-time vacancies ahead of new employees, in accordance with Article 11 03 6 The lay-off and recall of part-time employees shall be done in accordance with Article 11.03 7. Articles 11.04 and 11 05 shall apply to part-time employees. 8. The hours of work for part-time employees shall be as determined by the Employer, subject to Articles 12 05, 12.08, 12 09 and 12.10. 9 Overtime, Paid Holidays and Vacations for part- time employees shall be in accordance with the Employment Standards Act (Ontario). 10. The Employer will supply part-time employees with two (2) shirts which are to be kept clean and pressed by the employee. 11 Except as provided in this Schedule "B", the following Articles do not apply to part-time employees: (a) Article 11 - Seniority (b) Article 12 - Hours of Work (c) Article 13 - Overtime (d) Article 14 - Paid Holidays (e) Article 15 - Vacations (f) Article 19 - Leave of Absence (g) Article 20 - Uniform and Clothing Allowance (h) Article 21 - Employee Benefits 12 Paragraphs 2-11 inclusive of this Schedule liB" apply to students hired for summer relief The relevant provisions of Article 11 provide as follows: 11 01 Seniority is defined as the length of full- time service with the Employer and shall be used in accordance with the terms of this Article to determine preference for promotion, lay-off and recall The Employer shall maintain a seniority list showing the date on which each employee's service commenced and shall post such list at both bases not later than May 1st of each year. 11.02 Newly hired employee(s) shall be on a probationary basis for a period of six (6) months from 3 the date of hiring. During the probationary period, employees shall be entitled to all rights and benefits of this Agreement, except with respect to discharge The employment of such employees may be terminated at any time during the probationary period, without recourse through the grievance procedure. After completion of the probationary period, seniority shall be effective from the date of hiring 11 03(a) In the case of promotion (other than promotions outside the bargaining unit) and demotions (other than disciplinary demotions), the following factors shall be considered: (i) seniority; (ii) skill, competence, efficiency and ability. Where, in the judgment of the Employer, the factors in (b) are relatively equal, factor (a) seniority, shall govern, provided that this judgment shall not be exercised in an arbitrary or discriminatory fashion. (b) In all cases of lay-off and recall, the last person hired shall be the first laid off and the last laid off shall be the first recalled. Employees holding a Fundamental of causality Care degree must attempt to requalify by December 31, 1984. (c) Job postings: When a vacancy occurs or a new position is created, the Employer shall post notice of the position at both bases, for a minimum of ten (10) days, so that all members will know about the vacancy or new position Such notice shall contain the following information nature of position, qualifications, required knowledge and education, skills and wage range 11.04 Seniority shall accumulate in the following circumstances only (a) when off work due to lay-off, sickness or accident in which case seniority will continue to accumulate for a period of six (6) months or the length of the employee's seniority, whichever is the shorter; (b) when off work due to personal leave of absence, then seniority will continue to accumulate for the first calendar month of such leave; 4 (c) when absent on vacation with payor on statutory holidays, (d) when actually at work for the Employer. 11.05 seniority shall terminate and an employee shall cease to be employed by the Employer when he (a) voluntarily quits employment with the Employer; (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, or the length of his seniority, whichever is the shorter; (d) fails to report for work within three (3) working days after being notified by the Employer of recall, by registered mail; (e) fails to return to work upon the termination of authorized leave of absence unless there is an acceptable reason; (f) accepts gainful employment while on a leave of absence without first obtaining the consent of the Employer in writing; (g) is absent from work for three (3) consecutive working days unless absent due to verifiable illness or unless such absence is approved by the Employer. The employee is expected to notify the Employer in the event that he is not able to report for work at his scheduled starting time 11 06(a) Severance: An employee with five (5) years service on separation from employment shall be entitled to receive on separation, severance pay of one (1) week's pay per year of service, up to a maximum of twenty-six (26) weeks' pay. (b) Such severance pay shall only be provided in cases of separation from employment due to (i) death of the employee, (ii) indefinite layoff, in which case the employee must waive his right to recall from layoff, in writing, as a condition of receiving severance pay. Indefinite layoff includes a period of thirty-five (35) consecutive weeks, (iii) retirement 5 11.07 In the event that an employee in a supervisory or confidential position beyond the scope of this Agreement is placed in a position within the scope of this Agreement, he shall retain all seniority he has previously acquired and shall have added thereto the seniority accumulated while serving in such supervisory or confidential capacity. The part-time seniority list sets out seniority on the basis of hours while the full-time seniority list sets out seniority on the basis of date of hire It was agreed between the parties that another employee, Mr. Chris Brown, who was initially employed as a full-time employee and is now employed as a part- time employee, was credited with the seniority he accumulated during his full-time service upon his transfer to part-time status. Mr Roland argued that it is apparent from a review of the provisions of the Collective Agreement as a whole that the parties intended for part-time employees to retain their seniority upon transfer to a full-time position He noted that the Schedule B Article 4, refers to "seniority", not part-time seniority. Mr Roland emphasized that this is a situation where the Collective Agreement covers both full-time and part-time employees. In his submission, there is no reason for the parties to have provided for a conversion of hours to years unless it was contemplated that a bridge was being built between part-time and full-time employees, to be utilized in the situation that has now presented itself in the case of Mr Wilson In those 6 circumstances, it was argued, the formula is employed to convert the hours into an equivalent date of hire In Mr. Roland's submission, the Union's position is not inconsistent with B.11, which provides, inter alia, that the seniority provisions of the full-time agreement do not apply to part-time employees. The reason it is not inconsistent, it was argued, is that Mr. Wilson is not seeking to assert his seniority while he has status as a part-time employee It is only upon becoming a full-time employee that he seeks to be credited with seniority he has accumulated as a part-time employee in accordance with the formula established by the part-time agreement. Mr. Roland argued that the Union's interpretation was enhanced by the provisions of Article 11.07, which provides for the retention and accumulation of seniority of persons outside of the bargaining unit. It is unlikely, in his sUbmission, that the parties intended to protect persons outside of the bargaining unit while employees who had accumulated seniority in the bargaining unit would lose it, while still retaining employment in a bargaining unit position Indeed, it was emphasized, when the situation arose in relation to a full-time employee transferring into the part-time bargaining unit, the seniority that had accumulated was retained Mr Roland referred me to Re Dominion store Ltd. (Sarnia) and United Steelworkers, (1983) 9 LAC (3d) 238 (Roberts) In 7 that case the collective agreement specifically provided for the carryover of seniority when moving from part-time to full-time, however, the Collective Agreement was silent with the respect to the movement of full-time employment to part-time status The issue in that case was whether an employee was entitled to retain seniority in those latter circumstances The arbitrator's view was that restricting full-timers from carrying over seniority when they became part-timers while part-timers were allowed to take their seniority to full-time positions would be "manifestly unjust". The arbitrator concluded that such a term ought to be implied and at pps 241 to 242 the arbitrator makes the following comments with respect to this matter A term can only be implied into a contract if it can confidently be said that at negotiations the parties in replying to the question, "What will happen in such a case", would have stated, "Of course, so and so will happen; we did not trouble to say that; it is too clear." It seems to me that the case before me is one of those rare instances which meets the requirements of the above test In the light of the express language that the parties had already negotiated to cover the carry-over of seniority for an employee moving from part- time to full-time, it seems only logical that if they had been asked about the carry-over of seniority for an employee moving from full-time to part-time, the least that they would have replied would have been "Of course, the employee will carryover a reasonable amount of seniority; we did not trouble to say that; it is too clear " Seniority, after all, is a deeply imbedded feature of the collective bargaining process and a matter of major concern in any collective agreement It cannot be thought that in the light of the express concern of the parties for the seniority of employees 8 moving from part-time to full-time they cavalierly would have ignored the more solidly entrenched seniority rights of employees moving in the opposite direction. It was Mr. Roland's alternative submission that if I rejected the Union's position in relation to the interpretation of the provisions of the Collective Agreement that he urged upon me, I should follow the approach in this award and imply a term in the Collective Agreement On behalf of the Employer, Mr. Oldham emphasized the language of Article 11 01 and argued that the parties have clearly and specifically defined seniority as having its basis in full-time employment He argued that the language should be given its plain meaning. In his submission, given the greater attachment to the workforce of full-time employees, it is not surprising that they would be granted greater benefits than part- time employees Mr. Oldham argued that it would be surprising, however, if the relative seniority of full-time employees could be changed and disrupted by virtue of a part-time employee being able to utilize seniority accumulated as a part-time employee when attaining full-time status. Mr Oldham agreed with Mr. Roland that Article 4 of Appendix B provides a "bridge", but disagreed with his argument that it could not be given effect unless it had application to full-time seniority Mr Oldham referred me to Article 11 04 and 11.05 of 9 the Collective Agreement which, by virtue of Article B 7, apply to part-time employees It is to those provisions, it is argued, that the "bridge" is referable Mr Oldham also argued that the reference to retention and accumulation of seniority of persons outside of the bargaining unit in Article 11 07 indicates that the parties have considered this kind of issue and thus that had the parties intended the result that the Union urges, they would have done so specifically. Other arguments were put forward by Mr Oldham, but given our ultimate conclusion it is unnecessary to address them In reply, Mr Roland argued that Mr. Oldham's position in relation to Schedule B, Article 4 applying to Articles 11.04 and 11.05 is incorrect, as its proper application is in relation to Mr Wilson grieving in the status of a full-time employee Mr Roland acknowledged that full-time employees are given greater rights than part-time employees, however he argued that this matter ought not to diminish the rights part-timers are afforded, including, in his submission, accumulated seniority With respect to the specific reference to full-time employees in Article 11 01, Mr Roland argued that this was the case because the provision has primary application to full-time employees. In his submission, however, it is also applicable in the case of a 10 part-time employee attaining status as a full-time employee, who, it is argued, is entitled to his or her seniority, in accordance with the formula established under the Collective Agreement Mr. Roland was very persuasive in the arguments that he advanced. However, it is my view that to accept the Union's position would result in departing from the clear language of the Collective Agreement Article 11.01 clearly and specifically provides that seniority is defined as the length of full-time service with the Employer. The parties could have chosen to express themselves in terms of service, without modification, but did not do so. This leads to the clear inference that they intended to exclude part-time service in the determination of seniority for full-time employees While such an inference could be rebutted by language elsewhere in the agreement, I am unable to accept Mr Roland's "bridge" argument as a basis for such a rebuttal I agree with Mr Oldham that the conversion formula has application elsewhere, that is, as a basis for the calculations contemplated in 11.04 and 11 05 of the Collective Agreement which apply to part-time employees. In my view, Mr Roland's submission that the "bridge" is intended to have application when the employee attains full-time status and that it is from the perspective of a full-time employee that the language must be interpreted to allow part-time seniority to apply when the employee is employed on a full-time basis, is a position that cannot be reconciled with the clear and specific 11 language of Article 11 01 In my view, the provisions of Article 11 07 do not provide a basis for departing from the clear language of Article 11 01 The fact that a full-time employee was credited with seniority based on his full-time service upon transfer to part- time status does not cause me to question the foregoing conclusions based on the language of the Collective Agreement Article 4 of Schedule B, providing for accumulation of seniority for part-time employees, does not specifically provide that it is defined as part-time service, unlike Article 11.01, which specifically provides for seniority based on full-time service I am also unable to accept Mr. Roland's alternative argument in relation to Re Dominion store Ltd. (Sarnia) and united Steelworkers, supra In that award the arbitrator referred to "the more solidly entrenched seniority rights" of full-time employees in relation to part-time employees as a basis for concluding that since the parties had provided for the transfer of seniority where there was a change of status from part-time to full-time, they must have intended that seniority would carry over in a transfer from full-time to part-time Given that the preferential treatment of full-time employees is a common feature of collective agreements, I am unable to conclude that less advantageous treatment of part-time employees could not have been the intention of the parties 12 For these reasons it is my view that a violation of the Collective Agreement has not been established and the grievance is therefore dismissed. Dated at Toronto, this 19th day of August, 1997. )t)"tu.oru-k S.L. stewart, Vice-Chair