HomeMy WebLinkAbout1996-2588GROUP98_05_06
ONTARIO EMPLOYES DE LA COURONNE
CROWN EMPLOYEES DE L'ONTARIO
1111 GRIEVANCE COMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST SUITE 800, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (41tJ) 32tJ-1388
180, RUE DUNDAS OUEST BUREAU 800, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPIE (41tJ) 32tJ-13~
GSB # 2588/96
OPSEU # 97B 175
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
,
BETWEEN
OPSEU (Group Gnevance)
Grievor
- and -
The Crown In Right of Ontano
(Mimstry of TransportatIOn)
Employer
BEFORE Barry B Fisher Vice-Chair
FOR THE G Leeb
UNION Gnevance Officer
Ontano Pubhc ServIce Employees Umon
FOR THE L Marvy
EMPLOYER Counsel, Legal ServIces Branch
Management Board Secretanat
HEARING March 19, 1998
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This award is the third and, hopefully, final award regarding the issue of
whether or not certain seasonal employees whose employment was terminated
are entitled to severance pay under Section 58 of the Employment Standards
Act
In my last award dated February 12,1998, I was left with two issues to
decide
1 Interest on Severance Pay Awarded
,
The time at which various people would normally be entitled to severance
pay depends on when they were actually laid off and the date of the grievance I
have decided that it would be an administrative nightmare for both parties to
calculate different start dates and different interest rates for the numerous people
covered by this award Therefore, I award interest on all severance pay awarded
under my February 12 decision, to be calculated at the rate of 6 6 % from
December 16, 1996 This is to be calculated on a non-compounding basis This
interest rate follows the rate set by Section 127 of The Courts of Justice Act for
causes of action arising in the last quarter of 1996
2. Are Snowplow Operators covered by the Exemption in the
Employment Standards Act?
-'
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The parties submitted four sample Position Specifications which were
intended to cover those winter seasonal employees whose primary job function
was to either operate snow removal or sanding equipment (now referred to as
"Snowplow Operators")
The issue is whether or not these positions are covered by the exemption
from entitlement to severance pay in Section 58 (6)(e) of the Employment
Standards Act, which reads as follows
An employee whose employer is engaged im the construction,
alteration, maintenance or demolition of buildings, roads, sewers,
pipelines, mains, tunnels or other works where the employee
works at the site thereof (Emphasis added)
The decision of Vice Chair, Owen Gray, in this case dated May 12,1997
already ruled that this exemption applies to this employer, as they are engaged in
the business of road maintenance, even though it is not the employer's primary
activity I am bound by that decision and, therefore, there is no doubt that this
employer is an employer engaged in the maintenance of roads.
Moreover, there can be no doubt that Snowplow Operators conduct their
work while on the roads, therefore they are employees who work at the
maintenance site.
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I therefore find that the Snowplow Operators, as that term is understood
by the parties, to be covered by the exemption in Section 58(6)(e) of the
Employment Standards Act and are, therefore, not entitled to severance pay
The parties spent considerable time at the hearing arguing over the
characterization of what the Snowplow Operators actually did The Union argued
that they were engaged in the cleaning of roads, not the maintenance of roads
The Ministry argued that, based on both statutory interpretation and case law,
snow removal was part of road maintenance Had the isSlJe of the proper
characterization of the Snowplow Operator duties been the decisive issue, I
would have found in favor of the Union I would have relied on the reasons of
Mr Justice Lacobucci in the recent decision of the Supreme Court of Canada
entitled, Re Rizzo & Rizzo Shoes Ltd , where the Court quotes with favor the
following passage from Machtinger v HOJ Industries Ltd [1992] 1 S C R 986'
an interpretation of the Act which encourages employers to comply with
the minimum requirements of the Act, and so extends its protection to as
many employees as possible, is to be favored over one that does not.
However, I find that the issue of the actual characterization of the work
performed by the employee is not relevant to determining whether the exemption
applies Rather, you simply look at the characterization of the business of the
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employer and then determine if the employee in question works at the site
Therefore, a clerical person who worked at a construction site office would be
covered by the exemption, while a carpenter who assembled prefab doors at the
warehouse of the employer for delivery to the construction site, would not be
covered by the exemption
I remain seized to deal with any matters arising from the interpretation or
implementation of this award and my previous award of February 12, 1998
foll
Dated at Toronto this ~ day of May, 1998 $