HomeMy WebLinkAbout1996-1434SCOTT97_04_02
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I O/IITARIO EMPLOYES OF LA COI../RONNE
CROWN EMPLOYEES DE L'OfiTARIO
1111 GRIEVANCE COMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONErrELEPHONE (41tJ) 32tJ-1388
180. RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPIE (416) 326-1396
GSB :# 1434/96, 1907/96, 1934/96
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OPSEU :# 96D953, 96H051, 96H026
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Scott et al)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Community & Social Services)
Employer
BEFORE o V. Gray Vice-Chair
FOR THE J. Gilbert
GRIEVOR Grievance Officer
Ontario Public Service Employees Union
FOR THE L Marvy
EMPLOYER Counsel
Legal Services Branch
Management Board Secretariat
HEARING March 18, 19, 1997
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De~ision
On May 23, 1996r OPSEU and The Crown In Right of Ontario entered mto
an agreement that provIded, among other thmgs, that "[t]he partIes agree that
Article 25 1(b) applies to all employees Irrespective of date of appointment to the
classIfied service." What was then ArtIcle 25 1 - now 18 1 - says how an em-
ployee's continuous servIce date is to be calculated after he or she IS appointed to
the classified service and, partIcularly, how much credit IS to be given for any
prior employment in the unclassIfied service. Clause (b) of that article was
amended 10 the parties' 1992/93 collective agreement, changing the way credit
for prior {ull-hme unclassified service was calculated, but only with effect for
employees appointed to the classified service on or after January 1, 1992 The
agreement of May 23, 1996 removed that restriction on the application of the
new language of clause (b) The effect of that agreement was that the continuous
service dates of employees appointed to the claSSIfied service prior to 1992 were
subject to recalculation in accordance with the new language of clause (b) (see
Unwn Gnevance, 487/96 (July 24, 1996, Fisher))
An employee's continuous service date determines his or her seniorIty for
purposes of job competitions, bumping and recall rIghts and other entitlements
1Ovolving the relative seniority rankmg of employees It also determines whether
an employee whose employment ends wIll receIve certain termmatIOn payments,
and 10 what amount. Durmg a perIOd of substantial downsIz1Og, an employee's
cont1Ouous servIce date IS of considerable Importance.
The M10istry of commumty and SOCIal ServIces wrote to ItS claSSIfied em-
ployees, mformmg them that contmuous servIce dates mIght reqUIre reVIsion for
employees who had been employed 10 the unclaSSIfied servIce (or as a Go-Temp,
another matter addressed by the agreement of May 23, 1996) prIor to theIr ap-
po1Otment to the classified service. It adVIsed each employee of the contmuous
servIce date calculated for him or her prIOr to ImplementatIOn of the amendmg
agreement, and requested any employment hIStOry mformatIOn that mIght affect
a recalculatIOn. When an employee responded that the employer's calculatIOn of
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his or her continuous service date was inaccurate, the Ministry reviewed avail-
able records. If the result of that review did not satisfy an employee, there was a
further process in which the issues were reviewed. Employees unhappy with the
outcome of that process filed written grievances.
ThIs deCISIon deals WIth the CIrcumstances of four of those grIevors, cir-
cumstances that raIse _certam core Issues 10 dispute between the partIes con-
cernmg the effect of what is now ArtIcle 18 1 of the partIes current collectIve
agreement. Before turnmg to the grIevances, I shall first sketch the hIstOry of the
prOVIsion in question.
Collective Agreement History
Prior to the parties' 1984/85 collective agreement, the predecessor of Arti-
cle 18 1 read as follows:
ARTICLE 25 - SENIORITY (LENGTH OF CONTINUOUS SERVICE)
25.1 An employee's length of continuous service will accumulate upon
completion of a probationary period of not more than one (1) year
and shall commence from.
(a) The date of appointment to the Classified Service for those
employees WIth no prior service in the Ontario Public Service, or
(b) the date on whIch an employee commences a period of unbroken,
full-time servIce in the public service, immediately prIOr to
appointment to the Classrlied Service.
"Unbroken service" is that which is not interrupted by separation
from the public service, and "full time" is continuous employment as
set out In the hours of work schedules for the appropriate
classrlications.
The parties' 1984/85 collective agreement was settled by mterest arbitra-
tion. The mterest award observed that a recent statutory amendment had pro-
VIded for appointment of part time CIVIl servants as classified employees. award
of arbitrator Swan dated May 23, 1985, referred to 10 Ball, 1657/87 (August 10,
1988, Roberts) ArtIcle 25 1 was amended, and a new ArtIcle 25.2 was added,
WIth effect January 1, 1986 (see Ireson, 69/95 (November 19, 1996, Gray) ArtI-
cles 25 1 and 25.2 then read as follows'
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ARTICLE 25 - SENIORITY (LENGTH OF CONTINUOUS SERVICE)
25.1 An employee's length of continuous service will accumulate upon
completion of a probationary period of not more than one (1) year
and shall commence
(a) from the date of appointment to the Classmed Service for those
employees with no prior service in the Ontario Public Service, or
(b) from the date on whICh an employee commences a perlOd of
unbroken, full-time service in the pubhc service, immediately
prior to-appointment to the Classified Service, or
(c) for a regular part-time civil servant, from January 1, 1984 or
from the date on whwh he commenced a period of unbroken, part
t~me employment m the public servu:e, immediately pnor to
appointment to a regular part-t~me positwn in the civil servu:e,
whu:hever is later
"Unbroken service" is that which is not interrupted by separation
from the pubhc service, "full time" is continuous employment as set
out m the hours of work schedules for the appropriate classificatIOns;
and "part-time" is continuous employment in accordance with the
hours of work specified in Article 61 1
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25.2 Notw~thstanding Artu:le 25.1, where a regular part-time civil servant
within the meaning of Part C of the Collective Agreement becomes a
full-t~me civil servant covered by Parts A (Working Cond~tions) and B
(Employee Benefits) of the Agreement, any service as a regular part-
time civil servant which forms part of his unbroken service in the
classified service shall be calculated accordmg to the following
formula:
Weekly Hours of Work as a Years of Continuous
Regular Part-time Civil Servant X Service as a Part-time
Full-time hours of work Civil Servant
for class (weekly)
Changes in the employee's weekly hours of work shall be taken mto
account.
Example:
- weekly hours of work as a regular part t~me ctV~l servant = 6
years at 20 hours per week, and 2.5 years at 16 hours per week.
- Full-time hours of work for the class (weekly) = 40 (Schedule 4)
- Senionty (Length of Contmuous Servwe) on becommg a full-time
cw~l servant =
(20/40 x 6 years) + (16/40 x 2.5 years)
= 3 years + 1 year = 4 years
(emphasis added)
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The 1992/93 agreement amended ArtIcle 25 1~ so that it then read as fol-
lows:
ARTICLE 25 - SENIORITY (LENGTH OF CONTINUOUS SERVICE)
25 1 Effective February 3, 1992, an employee's length of contmuous
servIce will accumulate upon completion of a probationary perIod of
not more than nine (9) months and shall commence
(a) from the_ date of appointment to the ClassIfied ServIce for those
employees with no prIor servIce in the Ontario Pubhc Service, or
(b) effectwe January 1, 1992, from the date establ~shed by addwg
the actual number of full-t~me weeks worked by a full-t~me
unclasslfied employee dunng hlS full-time employment back to
the first break in employment WhlCh is greater than thlrteen (13)
weeks; or
(c) for a regular part-time civil servant, from January 1, 1984 or
from the date on which he commenced a period of unbroken,
part tune employment in the pubhc service, immechately prior to
appointment to a regular part-time posItion in the civil service,
whichever is later; or
(d) effective January 1, 1984, from the date established by adding
the actual number of full-ttme weeks worked by a full-time
seasonal employee during hlS full time employment back to the
first break in employment which is greater than thirteen (13)
weeks
"Unbroken service" is that which is not interrupted by separation
from the public service, "full-tune" is continuous employment as set
out m the hours of work schedules for the appropriate classifications;
and "part time" is continuous employment in accordance with the
hours of work specified m Article 61 1.
Effective December 20, 1990, any leaves-of-absence granted under
Arttcles 3.9 and 3.35 shall be included in the calculatwn of length of
continuous service.
(emphasis added)
These provisIOns were carried over unchanged mto the partIes' memorandum of
settlement of March 29, 1996 concernmg the terms of the 1994/98 collectIve
agreement.
Thereafter, the parties entered mto the agreement of May 23, 1996, which
prOVIded, 10 part, that
1 The partIes agree that the prillcIples of ArtIcle 25 l(b) shall apply ill
cases of GO Temp employees appointed to the classified staff.
2. The partIes agree that ArtIcle 25 l(b) applies to all employees
Irrespective of date of appointment to the classIfied service.
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At some time after that, the parties prepared a revised document in which the
provisions of the parties' 1996 memorandum of settlement have been rear-
ranged, renumbered and otherwise edited to form collective agreement docu-
ments that the parties agreed would be the official, effective verSIOns as of Feb-
ruary 17, 1997 Article 18 1 in the new document reflects the results of the
amendmg agreement on what was formerly ArtIcle 25 1
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ARTICLE 18 - SENIORITY (LENGTH OF CONTINUOUS SERVICE)
18.1 An employee's length of contInUOUS servIce will accumulate upon
completion of a probationary period of not more than nrne (9) months
and shall commence
(a) from the date of appoIntment to the Classified Service for those
employees with no pnor service In the Ontario Public Service, or
(b) from the date estabhshed by addIng the actual number of full
tune weeks worked by a full.time unclassIfied employee during
his full.time employment back to the fust break in employment
whiCh is greater than thirteen (13) weeks; or
(c) for a regular part-time civil servant, from January 1, 1984 or
from the date on which he commenced a period of unbroken,
part-time employment in the public service, immediately prior to
appointment to a regular part-time position in the civil service,
whIchever is later; or
(d) effectlVe January 1, 1984, from the date estabhshed by adding
the actual number of full-time weeks worked by a full time
seasonal employee during his full time employment back to the
fust break in employment which is greater than thirteen (13)
weeks.
"Unbroken service" is that which is not interrupted by separation
from the pubhc service, "full-tune" is continuous employment as set
out In the hours of work schedules for the appropriate classifications,
and "part tune" is continuous employment in accordance with the
hours of work specified in Article 58. 1 (Hours of Work)
EffectIve December 20, 1990, any leaves-of.absence granted under
Article 31 9 (Unclassified Employees - Pregnancy and Parental
Leave) and 32.19 (Seasonal Employees - Pregnancy and Parental
Leave) shall be rncluded In the calculation of length of continuous
servIce.
Grievance of Darlene Crawford
The parties agree that the facts relevant to Ms. Crawford's grievance are
as follows
1 Ms Crawford IS an OAG 6 employed by the MmIstry of Commumty and
SOCIal ServIces at the Southwestern RegIonal Centre.
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2. The parties agree that the grievor's employment history with MCSS is as
follows
(a) Feb. 8, 1988 Aug. 12, 1988 Unclassified Contract (FT)
(b) Aug. 13, 1988 Sept. II, 1988 Break
(c) Sept. 12, 1988 July 31, 1989 Unclassified Contract (FT)
(d) Aug I, 1989 Jan. 13, 1991 Unclassified Contract (PT)
(e) Jan. 14 1991 Aug 18, 1991 Unclasslfied Contract (FT)
(t) Aug. 19, 199} to Present Classified (FT)
3. The parties agree that the gnevor worked part time hours durmg her
part.trme unclassified contract (21 75 hours/week) and full-time hours
during her full-trme unclassIfied contracts.
4. The employer assigned the grievor a continuous service date of January
14, 1991 The employer did not provide credIt towards the date of
contmuous service for trme worked in unclassified contracts (a), (c) and
(d)
The parties also agree that clause (b) of article 18 1 determines the
grievor's continuous service date in these circumstances. They disagree about
how that clause should be applied. In particular, they disagree about whether
the period from August 1, 1989 to January 13, 1991, during which the grievor
was employed part-tIme, IS "the first break in employment which is greater than
thirteen (13) weeks."
The employer says that the word "employment" in the phrase "break in
employment" means "full-time employment." It argues that that word is leant
that meaning by the earlier words "during his full-time employment." Indeed, it
submits that there IS no other effect those earher words could have, s10ce on its
view of the meaning of the earher phrase "full-time weeks worked by a full-time
unclassified employee" such weeks would of necessity fall "durmg his full-tIme
employment." On thIs VIew, the period precedmg January 14, 1991 was the
gnevor's "the first break 10 employment whIch IS greater than thirteen (13)
weeks "
The union notes that smce "full-tIme" appears 10 three other places 10 the
clause - modIfymg "hours", "employee" and "employment" - the omiSSIOn of the
modIfier 10 the phrase 10 questIon must be taken to be deliberate and treated as
sIgmficant. The UnIon submIts that a "break 10 employment" is a perIOd durmg
whICh the person 10 questIOn IS not employed on any baSIS by the employer, and
that that phrase cannot apply to the perIod durmg whIch thIS grIevor was stead
Ily employed part-tIme. On thIS VIew, the gnevor had no "break 10 employment
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which is greater than thIrteen (13) weeks" between the beginning of her first un-
classified contract and her appointment to the classified service.
Grievance of Annette Garven
The partIes agreerl that the facts relevant to Ms. Garven's gnevance are
as follows: -
1 Ms. Annette Garven IS an GAG 6 employed by the Mmistry of
Commumty and SocIal ServIces at the Huronia RegIonal Centre.
2. The parties agree that the grievor's employment history with MCSS is as
follows'
(a) Feb 15, 1988 Nov 5, 1989 Unclassified Con tract (PT)
(b) Nov 6, 1989 to Present Classified (FT)
3. The parties agree that the grievor had unbroken service as defmed in
Article 18.1 throughout the grievor's employment hIStory as outlined in
paragraph 2.
4. The employer assigned the grievor a continuous service date of
November 6, 1989. The employer did not provide credit towards the date
of contmuous service for time worked in unclassified part.time contract
(a)
5. The grievor worked at least 40 hours per week in 32 of the 91 weeks
while on unclassified part.tune contract.
The gnevor had three consecutive contracts during the period February 15, 1988
to November 5, 1989 They covered the penods February 15, 1988 to May 31,
1988, June 1, 1988 to March 31, 1989 and April 1, 1989 to March 31, 1990 The
last of the three ended early when the grievor was appointed to the classified
service on November 6, 1989 The partIes agree that each of the three contract
documents provided that the grievor's hours of work were irregularly scheduled,
whIch meant that she dId not receIve overtime compensation unless her hours
worked exceeded full-time hours An agreed-upon hst of the hours Ms. Garven
worked dur10g each of her 91 weeks of unclassIfied servIce shows that apart from
one week 10 whIch she worked no hours, her hours worked ranged from a low of
15 m a week to a hIgh of 48 The grievor worked 37 hours 10 one week and 40 or
more hours durmg an addItIonal 32 of her 91 weeks of unclassIfied servICe The
partIes are 10 dIspute about whether the hours of work for a full-time positIOn of
the sort she held would have been 40 or 36'l.1 In eIther event, It cannot be said of
any of the three contracts that the gnevor worked full-tIme hours durmg every
week covered by the contract.
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The employer takes the posItion that a clas~Ified employee gets no credit
for weeks of unclassified service during which she worked full-time hours unless
she was also a "full-time employee" when those weeks were worked. In Its sub-
miSSIOn, that requirement is only met if the employee was working under a "full-
time" contract at the time. The employer says that unless the apphcable unclas-
sified contract was "full-time" on ItS face - that is, it expressly provIded that the
employee would be regularly scheduled to work full-tIme hours - It would only
be a "full-time" contract for thIS purpose If It provided for Irregularly scheduled
hours and the employee was scheduled to and actually worked full-tIme hours 10
each and every week of the perIod covered by the contract.
The union observes that 10 Will~ams, 3084/91 (December 15, 1992, Wat-
ters) and Morton, 2520/91 (June 16, 1993, Barrett), the Board rejected the notIOn
that the form of an employee's contract was determinative of whether full-time
weeks worked immediately prior to appointment to the classified service
amounted to CIa period of unbroken, full-time service in the public service, imme-
diately prior to appointment to the Classified Service" within the meaning of the
pre-1992 language of what was then article 25 1(b) It notes that no mention of
the form of contract appears in the current language of Article 18 1(b) It argues
that under that new language, the grievor should get credit for each of the 32 or
33 "full-time weeks" during which she worked full-time hours. It submits that
the current language is simply less restrictive than the old language as regards
what "break" will preclude credit for earher service. Under the old language,
weeks during which an employee worked full-time hours in the unclassified
service would only be "added" If they fell between the date of appointment to the
claSSIfied serVIce and the most recent week 10 w mch she worked less than full-
time hours. Although part-time weeks do not get credIted under the new lan-
guage, they do not now bar credIt for earher, full-time weeks.
Asked what slgmficance thIS 1Oterpretation of ArtIcle 18 1(b) lends to the
requirement that the "full-tIme weeks" be "worked by a full time unclaSSIfied
employee during hIS full-time employment," the union says that the addItional
"full-tIme" test excludes weeks worked under a contract whIch prOVIded that the
employee would be regularly scheduled to work part-time hours and would be
paId an overtime premIUm for hours worked In excess of those part-tIme hours
In ItS VIew, someone who qualified for an overtIme premIUm as a result of work-
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ing only the full-tIme hours prescribed for the relev~nt classificatIon would not
be a /lfull-time unclassified employee," since he or she would not have been
treated like a full-time employee would for pay purposes. In its submission, what
this language puts at Issue is the nature of the employee's employment in the
week in question. someone who can work full-time hours without becoming entI-
tled to an overtime premIUm for some of those hours IS a full-time employee for
purpose of the test set up by the references to "full-time" which appear after
"full-time weeks" in artIcle 18 1
Grievance of Inge Scott
The parties agree that the facts relevant to Ms. Scott's grievance are as
follows.
1 Ms. Inge Scott is a Counsellor 2, Residential Life employed by the
Ministry of Community and Social Services at Prince Edward Heights.
2. The parties agree that the grievor's employment history with MCSS is as
follows:
(a) Oct. 7, 1991 Dec. 31, 1991 Unclassified Contract (FT)
(b) Jan. 1, 1992 Mar 31, 1992 Unclassified Contract (FT)
(c) Apr 1, 1992 May 1, 1992 Unclassified Contract (FT)
(d) May 2, 1992 June 21, 1992 Unclassified Contract (FT)
(e) June 22, 1992 July 26, 1992 Unclassified Contract (PT)
(1) July 27, 1992 Nov 22, 1992 Unclassified Contract (FT)
(g) Nov 22, 1992 - Mar 31, 1993 Unclassified Contract (FT)
(h) Apr 1, 1993 - May 28, 1993 Unclassified Contract (FT)
(i) May 29, 1993 Aug. 1, 1993 UnclassIfied Contract (FT)
(j) Aug. 1, 1993 Sept. 30, 1993 Unclassified Contract (FT)
(k) Oct. 1, 1993 Nov 19, 1993 UnclassIfied Contract (FT)
(1) Nov 20, 1993 Dec. 31, 1993 Unclassified Contract (FT)
(m) Jan. 1, 1994 Mar 31 1994 Unclassified Contract (FT)
(n) Apr 1, 1994 June 30, 1994 Unclassified Contract (FT)
(0) July 1, 1994 Mar 31, 1995 Unclassified Contract (FT)
(P) Apr 1, 1995 Sept. 30,1995 Unclassified Contract (FT)
(q) Oct. 1, 1995 Dec. 18, 1995 Unclassified Contract (FT)
(r) Dec. 11, 1995 to Present ClassIfied RPT
3 The partIes agree that the gnevor had unbroken servIce as defined m
Article 18.1 throughout the gnevor's employment hIstory as outhned 10
paragraph 2.
4. The employer aSSIgned the gnevor the contmuous servIce date of
October 1, 1995 The employer dId not provide credit towards the date of
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continuous service. for time worked ill unclassIfied full.tune contracts (a)
to (d) and (f) to (P) and part-time unclassified contract (e)
The parties also agree that the grievor's "part-time" contract for the period June
22 to July 26, 1992 was for irregular heurs (that is, the grIevor could be assigned
and work full-time hours without becommg entitled to overtIme compensatIOn)
and that she worked full-time hours during two of the four weeks 10 that perIOd
The core issue raised by thIS grievance IS whether someone first appomted
to the classIfied service on a regular part-tIme basis ("RPT') can claIm the bene-
fit of clause (b) of artIcle 18 1 10 determmmg his or her continuous servIce date,
as the union argues, or is restricted to clause (c), as the employer claims.
The union rehes on the board's deciSIon 10 Koss, 781/95 (November 1,
1996, MIkus) The grievor there had been appointed to an RPT position on No-
vember 23, 1987 Her prIOr unclassified employment had been part-time from
April 2, 1984 to January 20, 1985, full-time from January 21, 1985 to May 20,
1985, part-time from May 21, 1985 to January 12, 1986 and full-time from
January 13, 1986 to November 22, 1987 One of the issues was whether the
gnevor could claim credit for her prior unclassified service. The KOS8 case was
heard on October 15, 1996 It appears that the parties' agreement of May 23,
1996 was not brought to the Vice-Chair's attention, however Her deCIsion
treated the pre-1992 language of ArtIcle 25.1 as determinative of the grIevor's
continuous serVIce date, as indeed it would have been but for the agreement of
May 23, 1996
As here, 10 Koss the employer argued that Just as credIt for prIor part-
time unclassified service was only available to RPT appomtees under clause (c),
credIt for full-time unclaSSIfied service under clause (b) was only available to ap-
po1Otees to the full-time classified service. The Koss deciSIOn rejected that argu-
ment. It found that the grievor could claIm credIt for the perIOd of full-time un-
claSSIfied service that preceded her RPT appomtment. The deCIsion also reJected
the union's argument that the gnevor could claIm credit for the earlier part-time
unclaSSIfied servIce.
SubsectIOn 25 (b) [SIC] was illtended to crecht employees WIth semonty from
the date that employee commenced a penod of unbroken full trme servIce
immedIately prIOr to the appomtment to the classIfied servIce. The reference
to the appomtment to the classuied servIce is not restncted and therefore
must apply to an appomtment to the part time or full tIme classIfied servIce
Otherwise the parties would have stated otherWise, as they have ill
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subsectIOn ss. 25 (c) (SIC). In thIS case, the grievor was working in a full-tune
unclassmed position when she was appointed to a part-time classified
position. That is to say, she was working "a period of unbroken full.time
service in the public service immediately prior to" her appointment to the
part. time classified position. Since the parties did not specifically limit the
crediting of seniority in these CIrcumstances to an appomtment to the full-
time classified service, the only conclusion to be drawn is that once an
employee is appomted to any classified position, all full-time unclassified
service immedIately pnor to her appomtment is to be included m the
calculation of her ~eniority In the mstant case, the grievor began her last
penod of unbroken full.time unclassIfied servIce on January 13, 1986. She
continued in that capacity until November 22, 1989 Immediately thereafter,
she was appointed to a part-time classified position. AI that time she was
entItled to receive credIt for senionty datmg back to the commencement of
her full tune employment, namely January 13, 1986.
The cases relied on by the Employer are dIstinguIshable. In the Pitfield,
Morton and Beard cases (supra), the grievances failed because the
grievors did not work in a full-time capacIty prior to their appointment to the
classified service. In the Ball case (supra), the grievor had been a part tune
civil servant for several years when she was appointed to a full-time
classified position. Her seniority commenced on the date she became
classified. The issue in that case was whether she should receive credit for
her part-time service. Her claim was founded on articles 25 0 [sic] and 25.2
of the collective agreements. This grievance concerns a claim under article
25(b) [sic). The Day case (supra), similarly concerned a claim for credit for
seniority for a unbroken series of part. time and full. time contracts. Because
the grievor's part.time service was interrupted by full-time service at times,
he was only entitled to credit for the part-time service immediately prior to
hIS appointment to the classIfied service.
The Union took the position that the grievor's servIce was unbroken from
1984 to 1987 and therefore, "immedIately prior to" should be read to mclude
all of the previous part time servIce, providmg that service is unbroken. If I
were to read the language m the manner suggested by the Union, I would, m
effect, be reading out the word "unmedIately" m article 25. Presumably, the
parties, in drafting the language, intended that word to limit the
CIrcumstances where semority was to be credited for past service. Otherwise
they would have omitted that word and the Union's mterpretatIOn would
prevail. For that reason, the gnevor IS not entitled to credIt for senionty for
the perIods of time she worked as a part-time unclassIfied employee before
January 13, 1986, smce none of them were worked immediately pnor to her
appomtment to the classified regular part time position
The umon argues that although the Koss deciSIOn exammed the now 10-
applicable pre-1992 language of ArtIcle 25 1, It conclusively determmed the
question whether the opening words of clause (c) - "for a regular part-tIme CIVIl
servant" - restrIct an RPT appointee's abilIty to claIm credIt for service under
any other clause Since the current language of clause (c) IS the same as the lan-
guage exammed in Koss, the umon submIts that I should follow that conclusion.
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Indeed, it argues that I am obliged to do so on the principles adumbrated 10
Blake, 1276/87 (May 3, 1988, Shime)
The employer takes the position. that an RPT appointee may only claim
credit for prior unclassified service under clause (c) of Article 18 1 The only un-
claSSIfied service for whIch an employee can claim credit under that clause IS
part-time service that oc~urred immediately prIor to the RPT appomtment. The
employer says that the assignment to the grievor of an October 1, 1995 contmu-
ous service date was made 10 the mistaken bebef that an employee 10 her POSI-
tion could claim credit for the perIod of her last full-time unclassified contract
Immediately prior to her RPT appomtment.
The employer argues that the decision in Koss is inapphcable because it
10terpreted a different collective agreement, not the collective agreement appli-
cable here. Although the language of clause (c) in both agreements is the same,
the language of clause (b) is different. Since the applicability of the current lan-
guage of clause (b) is what is at issue here, the princIples in Blake do not require
either application of the Koss decision or deference to its reasoning. The em-
ployer submits that differences between the current language of clause (b) and
the language discussed 10 Koss should lead to a different result here. Employer
counsel noted a number of differences. For example, old (b) speaks about "an em-
ployee", while new (b) does not. Old (b) expressly mentions appomtment to the
civil service, while new (b) does not. New (b) uses the words "full-time" repeat-
edly The employer says that this latter feature should be taken to signal what
sort of ciVIl servant clause (b) apphes to as well as to indicate the nature of the
unclassified service for which credit can be claimed thereunder It notes that the
above-quoted passage from the Koss deciSIon repeatedly refers to the "ImmedI-
ately prior" reqUIrement of old (b), and that there is no such requirement 10 new
(b) The employer notes that the Koss decision does not expressly reJect the ar-
gument that the openmg words of clause (c) Imply that It is the only clause under
whIch an RPT appointee can claIm credIt for prIOr unclaSSIfied servIce. WhIle
that conclUSIOn may be ImphcIt 10 the deCISIOn, the employer argues that the
pr10clples in Blake do not require that one panel of the board follow the reason-
10g ImplICIt 10 an earlIer deciSIOn of another panel.
I
- 13
Grievance of Mark Best
The parties agree that the facts relevant to Mr Best's grievance are as
follows.
1 Mr Best is an Agricultural Worker 1 employed by the Ministry of
Commumty and Social Services at CPRI, London.
2. The parties agree that the grievor's employment history with MCSS is as
follows' -
(a) Oct. 26, 1988 Apr 30, 1989 Unclassified Agr Worker 1 (PT)
(b) Nov 14, 1988 Dec. 9, 1988 UnclassIfied Agr Worker 1 (FT)
(c) Dec. 12, 1988 Apr 30, 1989 Unclassified Agr Worker 1 (PT)
(d) Feb. 20, 1989 Mar 31, 1989 Unclassified Agr Worker 1 (PT)
(e) Apr 1, 1989 Mar 31, 1990 Unclassified Agr Worker 1 (PT)
(f) Apr 1, 1990 Mar 31, 1991 Unclassified Agr Worker 1 (PT)
(g) Mar 4, 1991 to Present ClassIfied RPT Agr Worker 1
3. The grievor's date of hire to the unclassified service is October 26, 1988
and his continuous sexvice date as established by MCSS is December 12,
1988.
4. The parties agree that the grievor worked part-time hours during his
part-time unclassified contracts and full-time hours during his full.time
unclassified contract.
5. The parties agree that full. time unclassified contract (c) (November 14,
1988 December 9, 1988) equals 26 calendar days.
6. The parties agree wIth the grievor that his ongoing contracts were with
the Grounds Department and that at the time in question (November 14
to December 9, 1988) the grievor, for this period, did grounds work in the
mornings and then in the afternoons worked in the maintenance area
and this would constitute his 40 hours per week during the period.
Before, durmg and after the perIod November 14 to December 9, 1988, the
gnevor dId grounds work in the mornings, 20 hours per week. During the four
weeks between November 14 to December 9, 1988, he also did other work in the
afternoons, bringing his total hours worked to 40 10 each of those weeks Before
and after that period, hIS unclassIfied contract proVIded that he was to work 20
hours per week. Had the grIevor worked full-time hours under his pre-existmg
part-time contract, the employer would have been obliged to pay hIm an over-
time premIUm for the hours worked 10 excess of 20 per week. The contract for the
perIod November 14 to December 9, 1988, provided that he was to work 40 hours
per week.
.
14 -
When this grievance was selected for early cOJ;1Sideration in this proceed-
ing, the union thought that the grievor had worked on less than 20 days during
the period November 14 to December 9, 1988. On that basis, it contemplated
mak10g an argument that that period should be treated as a period of CCpart_
time" employment for purposes of Article 18 1, havmg regard to the provisIOns of
what IS now ArtIcle 58 1 HaVIng reviewed the facts, however, the partIes agree
that the grievor worked -full-time hours for 20 days during the relevant period.
The umon therefore concedes that the grievor's employment durmg the period
November 14 to December 9, 1988, is properly characterIzed as ((full-time" em-
ployment for purposes of Article 18 1 The union agrees that it was proper for the
employer to enter into a full-time contract for that penod
On the union's interpretation of clause (b) of Article 18 1, that clause could
apply so as to give the grievor credIt for his four weeks of full-tIme service. The
union concedes, however, that while in its view an RPT appointee may resort to
either clause (b) or clause (c), the use of cCor" between the two clauses precludes
such an appointee from getting credit under both clauses. The grievor here relies
on clause (c), pursuant to which the employer credited him with all of his part-
time service between the end of his 4 week period of full-time serVIce and his
RPT appomtment to the classIfied serVIce. The issue is simply whether under
that clause the grievor should also have had credit for his 4 weeks of full-time
unclassIfied service or for the part-time service which preceded it, or both.
The union acknowledges that thIS issue was addressed in Day, 1384/89
(ApnI19, 1990, Knopf) There, the grievor's work lustory was as follows:
The Grlevor began workIng as a part-time unclassrl'ied pubhc servant ill
April of 1984. He then continued to work on a senes of contracts as both a
full time and part time pubhc servant. The contracts and their status were
as follows'
1 04/25/84 27/05/84 Part tune
2. 28/05/84 30/11/84 Full tune
3. o 1/12/84 31/03/95 Full tune
4. 01/04/85 05/05/85 Full-tune
5 06/05/85 02/06/85 Part time
6. 03/06/85 29/08/85 Full time
7 01/09/85 31/ 12/85 Part tIme
On January 1, 1986, the Gnevor was appomted as a part.tIme member of the
classIfied seIVIce and remamed there untIl hIS reSignatIOn on September 21
1989
I
15 -
The issue was whether at the time of his resignation the grievor had the 5 years
of continuous service needed to qualify for a termination payment under what
was then Article 81. 1 (b) (now ArtIcle 78.1(b)) of the parties' collective agreement.
r The Board reluctantly found that he dId not:
ImmedIately prIOr to being appointed to the classified part time staff, the
Grievor was working on a part-time contract that had commenced on
September 1, 1985 That date began the period of "unbroken, part time
service immediately prior to [hIS] appointment to the regular part-time
positIon," Thus, according to the strIct wordmg of Article 25.1, the Gnevor's
length of continuous servIce must be deemed to have commenced as of
September 1, 1985.
ThIS conclusion immediately reveals the gaps m protection and the lack
of logic and fairness in Article 25.1 Takmg the Grievor as an example, he
has worked continuously m the public service smce April of 1984. ThIS has
been on a part-time and a full tune baSIS. If he had only worked on a part-
time baSIS since April of 1984, the strict wording of ArtIcle 25.1(c) would
allow him to be credited with the entire length of continous [sic] part-time
service back to April of 1984 and he would qualify for severance pay The
fact is that after that date he undertook a full.time commitment for the
Employer, for over a year That very element of full.time commitment
disentitles him to credIt any of that service and indeed interrupts what
common sense would tell us would be a continuous length of service to the
Employer However, Article 25. 1 (c) is clear that only the part.time service in
the public service immediately prior to the part. time appointment and that
is "unbroken" can be used for the purpose of calculating the length of
continous [sic] service.
The union submits for my consideration the grievor's view that he should
get credit for the periods covered by the full-time contract and the part-time con-
tract that preceded it because the full-time contract did not reflect a change of
job the grievor's part.time grounds work job continued unchanged through the
perIod of that full-time contract.
The employer's position IS sImply that only the part-time servIce that im-
mediately precedes the RPT appomtment can be counted under artIcle 18 l(c)
The period November 14 to December 9, 1988, was not a perIOd of part-time
service, so it cannot be counted Moreover, it broke the perIod of part-time servIce
Immediately precedmg the RPT appomtment, so that there can be no credit for
the grlevor's part-time servIce prIor to that perIOd of full-tIme service
I
- 16 -
Analysis
The Crawford, Scott and Garven grievances raise issues about the inter-
pretation and applicability of clause (b) of Article 18 1 of the collectIve agree-
ment. The Best grievance IS concerned only with the application of clause (c)
Clause (b) - Then and Now
-
The current language of clause (b) was first introduced in 1992, but only
wIth prospectIve effect for those appomted to the classified servIce thereafter
The mea rung of that language had not been the subject of adjudication when, in
May 1996, the parties agreed to apply the new language to all classIfied employ-
ees, 10cludmg those who had been appomted to the classified service pnor to
1992 DIfferences 10 the effects of the current and prior versions of clause (b) are
important because they can translate into changes in the continuous service
dates of civil servants appointed to the classified service prior to 1992, whose
continuous service dates would (or should) previously have been computed in ac-
cordance with the pre-1992 language of clause (b)
Prior to 1992, the continuous service date for an employee to whom clause
(b) applied was
(b) the date on whIch an employee commences a period of unbroken, full-
time service ill the public service, immediately prior to appointment to
the Classified Service.
Under that language, the form of the employee's contract dId not determ10e the
questIOn whether a period of service was a period of "full-time" servIce see Wil-
hams supra, and Morton, supra. An employee's unclassified contract might have
been described as "part-time" because It did not provide that the employee would
be regularly scheduled to work full time hours. It might have described the em-
ployee's hours as "irregular" or "up to 40 hours" (or 361.1 hours, dependmg on the
claSSIfication) Under that form of contract, the employee would be treated lIke a
full-tIme employee 10 determmmg whether his or her hours worked attracted a
premIUm for overtime An employee with such a contract mIght work full-tIme
hours each week for lengthy perIOds during the contract perIod
A perIOd durmg whIch an employee on that sort of "part-time" contract ac
tually worked full time hours each week could be a perIOd of "full-time servIce"
under the pre-1992 language of clause (b) For the employee to receIve credIt for
I
17
such a period, however, that period had to be both "unbroken" and "immediately
prior" to the appointment. An employee who worked less than full-time hours
during the week immediately pnor to his or her appointment to the classified
i service would not receive credit under clause (b) for any earher period of full-time
unclassified servIce, no matter how lengthy, because that perIod would not be
"immedIately prIor" to the appomtment. see Pttfield, 2564/91 (December 14,
1992, Verity) SImIlarly,-a week 10 whIch the employee worked less than full-
time hours would "break" a period of full-time servIce. An employee who worked
full-time hours for several weeks prIor to hIS or her appointment could only claIm
credIt back to the first such break. In Morton, supra, the Board found that the
employer had properly applied the pre-1992 language of clause (b) to an em-
ployee on an "Irregular hours" type of part-time contract when it dId the follow-
ing'
When management determined Mr Morton's seniority date pursuant to
Article 25.1(b), it looked at the number of weeks immediately preceding the
appointment to the classified staff in which Mr Morton had worked 40
regular hours, not including overtime. He had worked 40 regular hours for
five weeks unmechately preceding his classified appointment. The sixth week
back he had only worked 32 hours, so management looked no further to
determine the date of his "full-time continuous employment."
The contmuous service date for a classIfied employee to whom clause (b)
applies must now be (re-)calculated in accordance with the current language,
whIch provides that such an employee's "length of continuous service shall com-
mence:"
(b) from the date established by adding the actual number of full-time weeks
worked by a full time unclassIfied employee during hIS full-time
employment back to the first break in employment whIch is greater than
thirteen (13) weeks,
There IS no longer a reference to "full-tIme service", nor a requirement that such
servIce be "ImmedIately prIor" to the employee's appointment to the claSSIfied
service Instead, the clause refers to "full-tIme weeks", "a full-tIme unclassified
employee" and "full time employment." The partIes agree that "full-time weeks"
are weeks 10 whIch the employee works full-tIme hours They also agree that
some effect must be gIVen to the phrases "worked by a full-time unclassIfied em-
ployee" and "dur1Og hIS full time employment", but dIsagree about what that ef-
fect they should be gIven. They also disagree about whether the words "break 10
employment" apply to a week 10 whIch an employee IS employed and does work,
I
18
but for less than full-time hours. My analysis begins with this last point of dis-
agreement.
Clause (b) - "Break In Employment"
The repeated use of "full time" earlIer in clause (b) underscores its ab-
sence 10 the phrase "break 10 employment." The employer's suggestIOn that the
words "full-time employment" somehow reach out to and modIfy the subsequent
use of the word "employment" is not consIstent with the syntax of the clause. As
a general rule, the parties should be presumed to have intended that all of the
words they used would have some meamng Nevertheless, the fact that the
words "durmg his full-time employment" can serve no identifiable purpose not
already served by the earlier words of the clause cannot overcome the syntactical
problem. If I were to interpret "break in employment" as the employer suggests,
I would be readmg into it words that are just not there. I find that a penod dur-
ing which the employer employed an individual on a part-time, unclaSSIfied basis
is not a break in the individual's employment for purposes of clause (b) of Article
18 1
Clause (b) - Whether "Full-Time Weeks" Are To Be Credited Only
When Worked Under an Express or De Facto "Full-time" Contract
The next issue is what the phrases "worked by a full-time unclassified
employee" and "during his full-time employment" add to "full-time weeks" as a
limIt or limits on obtaimng credIt for weeks of unclaSSIfied employment. Beyond
the suggestion rejected in the previous paragraph, neither party offers an inter-
pretatIOn that gives each of those two additional phrases a distinct effect. Given
the quahty of the draftmg of the clause, it IS not terribly surpnsmg to find that
some part of it IS redundant. Clause (b) is not as elegantly or tIghtly drafted as it
could have been. It speaks of establIshmg a date by "add1Og" weeks without ex-
pressly statmg what the weeks are to be "added" to, nor even what "adding" m-
volves. Fortunately, It IS obvious that the partIes must have mtended to "add"
the weeks to the date of the employee's appomtment to the classified servIce, so
as to calculate a date that IS earl~er than the appointment date by the number of
weeks for whIch credIt IS gIven. ThIS is a process that someone wntmg a com-
puter program to perform the calculatIOn would lIkely have described as subtrac-
tIon, not addItIOn.
I
. - 19
The employer says that the qualification introduced by the added "full-
time" references is that the "full-time weeks" are not credited unless the em-
ployee worked them during the term of an unclassified employment contract
which either expressly provIded for "full-time" employment or was a de facto
"full-time" contract because the employee actually worked full-time hours in each
and every week of the contract. The umon says that the quahfication introduced
by the added "full-time'!.. references is that the hours saId to make up a "full-time
week" must have been treated as the hours worked by a full-time employee
would have been as regards entitlement to an overtime premium. Like the em-
ployer's 1Oterpretation, the unIon's lends some importance to the terms of the un-
claSSIfied contract 10 force at the time the "full time weeks" were performed,
since the terms of the contract determme how many hours a "part-time" em-
ployee can work in a week before any additional hours worked 10 that week at-
tract an overtime premium.
Viewed in isolatlOn from the collective agreement history and without re-
gard to the labour relations context, either interpretation would seem reason-
able. For purposes of determining which of these two interpretations the parties
are more likely to have intended, the most significant difference between them is
that in some CIrcumstances the employer's interpretation would give an em-
ployee less credit for unclassified service than he or she would have had under
the pre-1992 language of clause (b)
Under the pre-1992 language of clause (b), an employee who had worked
J~ under a "part-time" unclassified contract for irregularly scheduled hours would
get credit for an unbroken period of full-time weeks worked under that contract
immedIately prIor to his or her appointment to the classified service. That was so
even If that unbroken perIod of full-time weeks dId not extend to the begmnmg of
the term of the contract 10 effect at the tIme
Consider the hypothetIcal case of an 10dlvldual who, prior to 1992, was
appo1Oted to the claSSIfied servIce at the end of a six month "part-time" unclaSSI-
fied contract that prOVIded for irregularly scheduled hours If that employee had
actually worked full-time hours for each of the last 20 of the 26 weeks of that
contract, the contmuous servIce date WIth whIch she should have been credIted
at the end of her probatIOnary penod under the pre-1992 version of clause (b)
would have been a date 20 weeks prIOr to the date of her appointment to the
.
20
classified service. On the mterpretation of the current clause (b) proposed by the
employer, however, that hypothetical employee would not get any credit for any
of those 20 full-time weeks, since she did not work full-time hours in the first 6
weeks of the 6 month term of the contract. If the employer's mterpretatIOn of
clause (b) were correct, then the effect of the parties' agreement of May 23, 1996
would have been to strIp that hypothetical employee of 20 weeks of seniorIty
wIth whIch she would prevIously have been credIted.
WhIle the example is hypothetIcal, the Issue is not. One of the four
grievors here, Ms. Garven, worked full-time hours under a "part-time" contract
during the two weeks Immediately preceding her appomtment to the full-tIme
classified service in November 1989 Accordingly, at the end of her probatIon pe-
rIOd in 1990 she would have or should have been gIven credit for those two weeks
of unclassified service under the pre-1992 language of clause (b) On the em-
ployer's interpretation, the retrospective recalculatIon of her continuous sel'Vlce
date under the current language of clause (b) would result in her receiving no
credit for her unclassIfied service, thus effecting a two week reduction in her
seniority
The Morton deCIsion determined that under the pre-1992 language of
clause (b), hours for whIch an employee was entitled to an overtime premium
could not be counted in determining whether that employee had given "full-time
service." Accordingly, it does not appear that the union's interpretation of clause
(b) would deprive any pre-1992 appointee of credit for any weeks of full-time un-
claSSIfied servIce for whIch he or she would or should have been given credIt un-
der the pre-1992 language of clause (b)
There is a well-established arbitral rule of collective agreement interpre-
tation that "an employee's semorIty should only be affected by very clear lan-
guage 10 the collectIve agreement concerned and that arbitrators should construe
the collective agreement with the utmost strIctness whenever It is contended
that an employee's semority has been forfeited, truncated or abridged under the
relevant sections of the collective agreement" Re U.E W, Local 512 and Thng-
Sol of Canada Ltd., (1964), 15 L.A.c 161 (Reville) Tills prinCIple IS apphed 10
assessmg the effect of amendments to a collective agreement. Re Duffenn-Peel
Roman Cathohc Separate School Board and AssocLatwn of Professwnal Student
ServLces Personnel (1995), 48 L.A.c (4th) 316 (M G PIcher) When the partIes
.
. - 21
amend their collective agreement, they are presullled not to have intended to
take away any of the employees' accrued seniority unless the language they used
clearly demonstrates that they had such an intention.
At issue here is the combmed effect of two amendments: the 1992
amendment of clause (b) with prospective effect, and the 1996 amendment re-
quir10g retrospective recalculation of continuous service dates established prior
to 1992 The presumption agamst abridgement of semorIty rights mIght not have
figured strongly, or at all, in an interpretation of the language of clause (b) as It
read before May 1996 It did not then affect the seniority of anyone who already
had seniorIty when it was introduced. The parties apparently did not come into
COnflIct over mterpretatIon of the clause, however, before they agreed on May 23,
1996 to further amend the new language so that it apphed to pre-1992 appomt-
ees. Applied to that latter agreement, the presumption against abridgement of
seniority rights bears application in determining what the parties must be taken
to have understood the new language to mean.
Having mandated a recalculation, the parties must have anticipated that
the continuous service dates of some employees would change. At very least, they
must have expected that some employees appointed prior to 1992 would be cred-
ited with more of their unclaSSIfied service than they had been or should have
been under the pre-1992 language of clause (b) Of course, that would improve
their seniority standing relative to other employees with whom they might com-
pete for positions in matters of promotion, bumping and recall. Examining the
matter from the perspective of those other employees, one could be say that the
partIes must have antIcipated that the relatwe semorIty standmg of some em-
ployees could be adversely affected by recalculatIOns mandated by the 1996
agreement. It is not evident from the mere fact of their having agreed to a retro-
spective recalculation, however, that the partIes antiCIpated or mtended that the
actual, absolute amount of any employee's semorIty or length of contmuous
service could thereby be reduced, thereby reducmg or even ehmmating the em-
ployee's entItlement to termmation payments It IS not clear from the language
they used that the parties mtended to reduce any employee's accrued seniorIty
In a chOIce between an otherwIse plausible mterpretatlOn that has that effect
and one that does not, the presumptIOn to whIch I have referred favours the 10
terpretatlOn that does not reduce any employee's accrued semorIty
.
- 22
For the foregoing reasons, I prefer and adopt the union's interpretation of
the current language of clause 18 1(b} on this point. An employee need not have
been working pursuant to an express or de facto "full.time" unclassified contract
10 order to claim credit for a "full-time week" worked, but hours for which an
overtime premIUm was payable do not count in determining whether the hours
worked by the employee 10 a week made It a "full-time week."
-
Whether Clause (b) Applies Only To Appointees to Full-Time Positions
in the Classified Service
It is clear that the language of clause (b) focuses only on what the em-
ployee was or dId prior to his or her appointment to the classified serVIce. The
repeated use of the adJective "full-time" in that context cannot be interpreted as
a "sIgnal" that clause (b) can apply only to someone whose initial appointment is
to a full. time classified position. Clause (c) uses specific language to limit its ap-
plication to part-time civil servants. If the parties had intended to similarly limit
the application of clause (b) to full-time civil servants, they could have mcluded
corresponding language in clause (b) The fact that the parties did not do so in
the pre-1992 version of clause (b) led the Board to conclude m Koss, supra, that
any appomtee to the claSSIfied serVIce could resort to (b) in calculating her length
of cont1Ouous service, regardless whether her appointment was to a full-time or a
part-time position. The dIfferences between the pre-1992 and current versions of
clause (b) do not appear to dimlnish the applicability of that reasoning
The result of applying clause (b) to the unclassified service history of an
RPT appointee will almost always be different from the result of applying clause
(c) to the same servIce history Nothing in Article 18 1 expressly says whIch re-
sult would apply That omission mlght suggest that the drafters dId not intend
both clauses to be available to an RPT appomtee On the other hand, the omis-
SIOn may SImply reflect a bebef that the basis for determming which clause was
to be apphed in any gIven case was ObVIOUS. Partles who intended both clauses to
be avaIlable to an RPT appointee would obVIously have mtended that the ap
pomtee have the benefit of the most generous of the two results obtamed by ap
plymg those two clauses to the appointee's partIcular hIStOry of unclassified
servIce. The partIes may not have thought it any more necessary to spell that out
than to spell out what "addmg" meant 10 clause (b)
I
\ - 23
Determining which of clauses (b) and (c) gave a more favourable result
was easy under the pre-1992 language. Both clauses had an "immediately prior
to appointment" hmitation. If the last week before appointment was a "full-time
week," then there could be no credit under clause (c), so clause (b) would be ap-
plied, as in Koss Conversely, if the last week before appomtment was a "part-
time" week, then there could be no credIt under clause (b) and clause (c) would be
apphed. Determining whIch clause gives a more favourable result is less easy
under the current language. If the last week before appointment was a "full-time
week," then the "immediately prIor to appointment" limitation in clause (c)
would still preclude credit under that clause, and clause (b) would gIve a more
favourable result. The converse IS not necessarIly true, however, if the last week
before appointment was a "part-time" week. Clause (b) no longer has an "imme-
dIately prior to appomtment" limitation. As I have already saId, a period of part-
time service does not preclude credit for earlier "full-time weeks" under clause
(b) Accordingly, the fact that the service immediately prior to the appointment
was "part-time" would not necessarily indicate that clause (c) would give the
more favourable result. It would be necessary to compare the number of consecu-
tive part-time weeks of service immediately prior to the appointment with the
number of earlier "full-time" weeks that qualify for credit under clause (b) in or-
der to determine whIch provides the more favourable result. This addItional
complexity of calculation does not diminish the reasonableness of the Koss
analysis as applied to the current language of clause (b)
I am persuaded that the analysis in the Koss deCIsion can and should be
applied to the current language of Article 18 1 As a result, the contmuous serv-
Ice date of an employee whose transition from the unclassified service to the
classified servIce was to a part-time pOSItIOn is to be calculated in accordance
WIth whIchever of clauses (b) and (c) gIves the employee the most favourable re-
sult.
I was told that at one po1Ot the MmIstry was re-calculatmg continuous
service dates on the basis that a part-tIme appomtee could take advantage of
clause (b), but only WIth respect to the perIod of the very last contract prIOr to his
or her appointment to a part-time claSSIfied pOSItIOn. That was apparently why
grIevor Scott was assIgned a contmuous servIce date of October 1, 1995 Em-
ployer counsel dId not offer any argument In support of the proposItIOn that If a
,
\
24 -
part-time appointee could take advantage of clause (b) at all, it was only with
respect to the period of the very last contract prior to hIs or her appointment to a
part-time classIfied position. The application of clause (b) to an appointee to a
" full-time position 1S not limIted to the perIOd of the very last contract before ap-
pointment. Equally, there is no such lImItatIOn on the applicabihty of clause (b)
to an appointee to a part-time claSSIfied positIon.
-
Whether full-time service breaks the period of part-time service for
which clause (c) gives credit
The issue raIsed by Mr Best's grIevance was fully addressed 10 the Day
deCIsion. The language of clause (c) is the same now as it was then. Clause (c)
only gives an employee credit for unclassified serVIce that 1S "Immediately prior
to appointment to a regular part-time position in the CIVIl service", "part-time"
and "unbroken." When an employee's part-time semce immediately prior to his
appointment is separated from an earlier period of part-time service by a period
of full-time service, the employee only gets credited under clause (c) with the
most recent period of part-time service. That 1S so even If some of the employee's
duties during the intervenmg period of full-time service were the same as the du-
ties he performed on a part-time basis before and after that period.
Conclusions
Darlene Crawford only got credIt for the 31 full-time weeks she worked
in the unclassIfied service Immediately prior to her appointment to the classified
serVIce on August 19, 1991 She was not entitled to cred1t for the period of her
part-time employment between August 1, 1989 and January 14, 1991. That pe-
riod was not a break in employment for purposes of clause (b) or ArtIcle 18 1,
however, so she was also entItled to credit for the 46 full-tIme weeks she worked
between September 12, 1988 and July 31, 1989 The period from August 13 to
September 11, 1988 was a break m employment, but It was not greater than 13
weeks. Accordmgly, she IS also entitled to credit for the 27 full-time weeks she
worked between February 8 and August 12, 1988 In total, she was entItled to
credIt for 104 full-time weeks worked prIOr to her appomtment to the classified
service on August 19, 1991 Her contmuous servIce date IS therefore August 21,
1989
.
I 25
Annette Garven was given no credit for the full-time weeks she worked
prior to her appointment to the classified service on November 6, 1989 Either 32
or 33 weeks of her prior unclassified service were "full-time weeks worked by a
full-time unclassIfied employee durmg his full-time employment" withm the
meamng of clause (b) of ArtIcle 18 1 Accordmgly, her contmuous service date IS
either March 27 or March 20, 1989, dependmg on whether the full-time hours for
her position were 40 or-36~ at the relevant time. I remain seIsed WIth that re-
maming issue in her grIevance, and will resolve it after a further hear10g if the
parties are unable to do so without one.
Inge Scott was employed in the unclassified classified service contmu-
ously from Oct. 7, 1991 until her appomtment to a part-time position in the clas-
SIfied semce on December 11, 1995 All but two of the weeks of that period were
"full-time weeks worked by a full-time unclassified employee during his full-tune
employment" within the meaning of clause (b) of Article 18 1. I have found that
clause (b) is available to RPT appointees and should be applied when it gives a
more favourable result than clause (c) It gives Ms. Scott a more favourable re-
sult than clause (c), under which she would receive no credit. Accordingly, her
cont1Ouous service date is October 21, 1991.
The employer's calculation of Mark Best's continuous service date was in
accordance with clause (c) of Article 18 1 (which gives a more favourable result
than clause (b) would) The 1992 and 1996 amendments to what is now Article
18 1 did not change clause (c) The Board's findings in the 1990 decision In the
Day case remain applicable. Only the period of part-time service immediately
prior to appointment to the classIfied service is credited under clause (c) If a pe-
rIod of full-time employment separates periods of prior part-time service, only
the most recent perIod counts under clause (c)
I rema10 seIsed WIth any issue concerning the implementation of these
conclusIOns.
Dated at Toronto this 2 n d day of AprIl, 1997
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