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HomeMy WebLinkAbout1998-0892.Burke.98-10-05 Decision Of>ITARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'Of>ITARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 800, TORONTO ON M5G tZ8 TELEPHONEffELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 800, TORONTO (ON) MSG tZ8 FACS/MILEffELECOPIE (416) 326-13~ GSB #0892/98 . IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SEITLEMENT BOARD BETWEEN Ontano Public ServIce Employees Dmon (Joan Burke) Grievor - and - The Crown m RIght of Ontano (Mimstry of Commumty and SOClal Servlces) Employer BEFORE Owen V Gray Vice-ChaIr FOR THE Cameron Walker GRIEVOR Gnevance Officer OPSED FOR THE Donna Holmes EMPLOYER Counsel, Legal Servlces Branch Management Board Secretanat HEARING September 14, 1998 . DECISION [1] Joan Burke gneves that the employer has Improperly calculated her con tmuous servIce date under ArtIcle 18 1(b) of the partIes' current collectlve agreement, whIch provIdes as follows ARTICLE 18 - SENIORITY (LENGTH OF CONTINUOUS SERVICE) 18 1 An employee s length of contmuous servIce will accumulate upon completIOn of a probatIOnary penod of not more than nme (9) months and shall commence (b) from the date establIshed by addmg the actual number of full tune weeks worked by a full tlffie unclassuied employee durmg hIS full tune employment back to the first break m employment whIch IS greater than thuteen (13) weeks, Facts [2] The partIes agree on the followmg facts 1 The gnevor IS a Fmance Clerk (Office AdmmIstratIOn 8) and IS currently employed as a classIfied full tune employee 2. The gnevor was appomted to the full tlffie classIfied servIce on November 7 1985 3 Pnor to her appomtment to her full tlffie classuied servIce, the grIevor was employed m a senes of 16 consecutIVe GO Temp full tlffie unclassuied contracts commencmg December 14, 1981 4. The employee was employed for the followmg penods December 14 to 31 1981 January 1 to 29 1982 There IS a four day break to the next contract. February 3 to May 21 1982 There IS a three day break to the next contract. May 25 June 30,1982 There IS an 11 week and 2 day break to the next contract. September 20 to November 10 1982 There IS a one day break to the next contract (statutory holIday) November 12 to December 31, 1982 January 1 to February 4, 1983 There IS a 10 day break to the-next contract. 2 February 14 to May 11 1983 There IS a one day break to the next contract. May 13 to June 17, 1983 There IS a 14 week break to the next contract. September 26 to December 31, 1983 January 1 to January 11 1984 There IS a one day break to the next contract. January 13 to February 3, 1984 There IS a 10 day break to the next contract. February 13 to June 15, 1984 There is a 14 week break to the next contract. September 24 to December 31 1984 There IS a one day break to the next contract (statutory hohday) January 2 to October 4, 1985 There IS a two day break to the next contract (Saturday and Sunday) October 7 to November 6 1985 [3] GO Temps were not covered by a collectIve agreement durmg the penods that the gnevor was so employed The partIes agree that one of the terms of em- ployment of GO Temps durmg those penods was that they would have 4% of gross pay added to theIr regular pay cheques "m lIeu of vacatIOn leave wIth pay" The gnevor dId not take any vacatIOn leave durmg any of her penods of employ ment as a GO Temp It was not the gnevor's chOIce to be separated from em ployment durmg the two 14 week breaks m Issue The gnevor was workmg at the FIlm LIbrary m the MmIstry of EducatIOn before, between and after those two breaks The breaks corresponded to penods when the FIlm Library was closed for the summer [4] When the gnevor was appomted to the claSSIfied servIce, the prOVISIOn for calculatmg the Contmuous ServIce Date of an appomtee to the claSSIfied servIce was dIfferent from the one that now applIes On May 23, 1996, the partIes en tered mto an agreement that prOVIded, m part, that 1 The partIes agree that the prmcIples of ArtIcle 25 1(b) shall apply m cases of GO Temp employees appomted to the classIfied staff. 2. The partIes agree that ArtIcle 25 1(b) apphes to all employees l1'reSpectlVe of date of appomtment to the classrned servIce. At some tIme after that, the partIes prepared a revIsed document m whIch the prOVISIOns of the partIes' memorandum of settlement of March 29, 1996 were re- 3 arranged, renumbered and otherwIse edIted to form collectIve agreement docu- ments that the partIes agreed would be the officIal verSIOns effectIve as of Feb- ruary 17, 1997 ArtIcle 181m the new document reflects the results of the amendmg agreement on what was formerly ArtIcle 25 1 [5] In calculatmg the gnevor's Contmuous ServIce Date, the Employer gave her credIt only for full tIme weeks worked as a GO Temp from and after Septem ber 24, 1984 under ArtIcle 18 1(b), smce the full tIme work that began on that date was preceded by a break m employment of greater than 13 weeks Argument [6] The umon's posItIOn IS that the gnevor has a nght to be treated as havmg been an employee on vacatIOn leave for two weeks m each year that she worked as a GO Temp Smce she dId not take any vacatIOn leave dunng penods covered by her employment contracts, the umon argues that two of the weeks not covered by employment contracts (weeks durmg whIch It concedes she was not actually an employee) should be treated as weeks when she was an employee on vacatIOn leave Thus, even If the 10 day break from February 3 to February 13, 1984, IS treated as mcludmg a week's vacatIOn leave whIle employed, at least one week of the 14 week break from June 15 to September 24, 1984 would have to be SImI larly treated Accordmgly, that break should not represent a break m employ- ment m excess of 13 weeks and would not preclude credIt for full-tIme weeks worked pnor to that break. The umon makes a sImIlar argument wIth respect to the earlIer 14 week break between June 17 and September 26, 1983 (and the 10 day break that preceded It) If the two 14 week breaks durmg the gnevor's em- ployment hIStOry as a GO Temp ought to be treated as breaks of no more than 13 weeks, then the gnevor would be entItled under ArtIcle 18 1(b) to credIt for all full-tIme weeks worked smce December 14, 1981 [7] The umon submIts that vanous mterpretIve bulletms Issued by Manage- ment Board Secretanat smce the May 1996 agreement support ItS posItIOn. It relIes m partIcular on paragraph 4c of InterpretIve Bulletm 22 -4 4c Does absence due to vacatlOn durmg the penod of GO Temp employment dnnmIsh accumulatlOn of servIce for purposes of ArtIcle IS? Absence due to vacatlOn that IS eqUIvalent m days to the percentage granted to GO Temp employees will not dnnmIsh servIce accumulatlOn. Anythmg beyond that would dnnmIsh the servIce, m the same manner as referred to m (b) above. In other words, a GO Temp employee who receIVes 4 per cent m heu of vacatlOn would be allowed two weeks absence due to vacatIOn. Should they be granted a thIrd week vacatlOn leave [SIC] theIr CSD (upon appomtment to the ClassIfied ServIce) would be adjusted by that one week absence . The umon argues that vacatIOn leave should be credIted whether or not leave IS actually taken durmg a penod covered by a GO Temp employment contract It concedes that the Interpretive Bulletm IS not dIrected to the umon or to employ ees It represents [8] The employer argues that the gnevor had no nght to vacatIOn leave and, hence, no nght to have weeks when she was not an employee treated as though they were weeks when she was an employee on vacatIOn leave There was no prOVISIOn for vacatIOn leave m her employment contracts as a GO Temp GO- Temps receIved weekly pay "m heu of vacatIOn leave WIth pay" The prOVISIOns of the Employment Standards Act dealmg WIth vacatIOns and vacatIOn pay dId not and do not apply to the Crown. The mterpretatIOn bulletm does not deal WIth the credItmg of weeks outsIde of penods of GO- Temp employment Decision [9] A classIfied employee's contmuous servIce date determmes hIS or her semonty for purposes of Job competitIOns, bumpmg and recall nghts and other entitlements mvolvmg the relative semonty rankmg of employees It also deter mmes whether an employee whose employment ends WIll receIve certam termI nation payments, and m what amount. Clause (b) of ArtIcle 18 1 determmes whether and to what extent an appomtee to a full-time pOSItIOn m the classIfied servIce WIll receIve credIt for pre-appomtment employment m the pubhc servIce m determmmg hIS or her contmuous servIce date As I observed m Cragg et al J 2854/96 (decIsIOn dated Apnl 23, 1997) 5 The rules about how contmuous servIce dates are calculated are the product of agreements made by the UnIon and the employer ThIS Board has no power to change any lawful agreement the partIes have made m that regard. Indeed, the partIes collectIVe agreement expressly provIdes that the Board has no such power [10] Clause (b) of ArtIcle 18 1 gIves credIt for full tIme weeks worked as a full- tIme unclassIfied employee only "back to the first break III employment whIch IS greater thar; thIrteen (13) weeks" The gnevor had a break III employment of 14 weeks m the summer of 1984 The umon's argument that thIS should only be re garded as a break of 13 weeks or less rests on the premIse that the gnevor was entItled to two weeks' vacatIOn leave per year wIthout pay durmg whIch she should have retamed employee status, and that thIS entItlement should be hon oured by subtractmg two weeks from the tIme penod(s) durmg whIch she was not an employee [11] InterpretIve Bulletm 22 IS not a contractual document. It IS dIrected to members of management, not to employees or the umon. The umon does not claIm that ItS contents gIVe nse to an estoppel. In any event, the portIOn of In- terpretIve Bulletm 22 to whIch the umon referred m argument IS not addressed to the Issue that anses here It addresses somethmg that dId not occur m the gnevor's case leave taken for vacatIOn purposes dunng a penod of employment as a GO-Temp It ImplIcItly assumes (reasonably, m my VIew) that a penod of leave granted and taken dunng employment IS not a break m employment. The Issue on whIch It focuses IS whether and to what extent weeks of leave taken dunng a penod of employment WIll be treated as thought they were weeks worked m determmmg the credIt referrable to the perIOd of employment m wmch they fall. That IS not the Issue here The employer's apparent wIllmgness to treat two weeks of any vacatIOn leave taken dunng penods of GO-Temp em- ployment as weeks worked for purposes of ArtIcle 18 1(b) does not create or 1m ply an oblIgatIOn to notIOnally reduce the length of the actual breaks m employ ment of GO-Temps who dId not take vacatIOn leave dunng theIr penods of GO- Temp employment. 6 [12] The gnevor was entItled to and recelVed pay "m lIeu of vacatlOn leave wIth pay" as part of her pay for each week she actually worked as a GO-Temp She dId not also have a nght to vacatlOn leave, wIth or wIthout pay The umon's argument, whIle ImagmatIve, IS wIthout foundatlOn. [13] The umon and the employer agreed that credIt would not be gIven for un classIfied or GO-Temp servIce pnor to a break m employment whIch IS greater than thIrteen weeks They dId not provIde for any adjustment to actual breaks m employment to reflect some notlOnal entltlement to vacatlOn leave The employer complIed wIth the partIes' agreement by denymg the gnevor credIt for servIce pnor to September 24, 1984 The gnevor's gnevance that the employer mcor rectly calculated her Contmuous ServIce Date IS dIsmIssed. 'U ~ Dated at Toronto thIS ~ day of Se ember, 1998 i