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HomeMy WebLinkAbout2002-1579.Darcis.03-06-10 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 1579/02 UNION# 2002-0720-0005 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (DarcIs) Grievor - and - The Crown In RIght of Ontano (Mimstry of Health and Long-Term Care) Employer BEFORE Loretta Mikus Vice-Chair FOR THE UNION Maureen Doyle Ryder Wnght Blair & Doyle BarrIsters and SOlICItorS FOR THE EMPLOYER Janet Meyers Mimstry of Health and Long-Term Care HEARING June 3 2003 2 AWARD The gnevor Michele DarcIs, IS an RegIstered PractIcal Nurse (RPN) who was ImtIally hIred as a part tIme employee on January 8 1998 at the Lakehead PsychIatnc HospItal EffectIve February 5 2001 the gnevor began a temporary contract to replace a vacancy As of March 19 2001 the gnevor began a temporary contract to replace a vacancy created through the absence of Pat Holma, another part tIme RPN Ms Holma had been workIng for some years In a modIfied posItIOn that dId not reqUIre her to work weekend, ShIft work or 12 hour days The gnevor claims that she should have been converted pursuant to artIcle 31 whIch reads, In part, as follows Where the same work has been performed by an employee In the UnclassIfied ServIce for a penod of at least eIghteen (18) consecutIve months, except for sItuatIOns where the unclassIfied employee IS replacIng a classIfied employee on a leave of absence authonzed by the employer or as provIded for under the Central CollectIve Agreement, and where the mImstry has determIned that there IS a contInuIng need for that work to be performed on a fu, tIme baSIS, the mImstry shall establIsh a posItIOn WIthIn the ClassIfied ServIce to perform that work. The Employer takes the posItIOn that the gnevor fits wIthIn the exceptIOn because her contracts of employment have consIstently clearly stated that she was replacIng Ms Holma. The Umon takes the posItIOn that the gnevor dId not replace Ms Holma because the posItIOn she assumed was dIfferent In several matenal ways from the posItIOn Ms Holma held Ms Holma worked 32 hours per week, the gnevor 40 Ms Holma worked only the day ShIft, the gnevor rotated on days and mghts Ms Holma worked only eIght hour shIfts, the gnevor worked 12 hour shIfts Ms Holma dId not work weekends, the gnevor dId. All of those dIfferences prove, asserted the Umon, that the gnevor dId not replace Ms Holma but rather performed the dutIes of a full tIme RPN The Employer maIntaInS that the actual posItIOn on the tIme schedule that the gnevor took was Ms Holma's ongInal posItIOn before It was modIfied to accommodate her needs When the Employer looked for a replacement, It looked for a replacement for the unmodIfied posItIOn, whIch IS the one the gnevor assumed. 3 The eVIdence also showed that the staff on a shIft are placed In teams of four who rotate through the ShIftS together on a contInuIng basIs That IS, they always work together barrIng unusual CIrcumstances lIke lower patIent counts Ms Holma dId not rotate ShIftS wIth the team and dId not work the same 12 hour ShIftS as the rest of the teams When the gnevor was offered a full tIme contract, she ImmedIately became a member of the team IncludIng workIng rotatIng 12 hours ShIftS and weekends Although these teams are not carved In stone and vaned on occaSIOn, for the most part the staffing compnsed of the team members and Ms Holma on the day shIft. In the cIrcumstances, notwIthstandIng that the contracts of employment stated that the gnevor was replacIng Ms Holma, the facts show that she was fillIng a lIne In the schedule of a full tIme employee workIng 12 hour ShIftS and weekends on a rotatIng basIs That IS not the posItIOn Ms Holma occupIed. For these reasons the gnevor IS to be converted to a classIfied full tIme RPN posItIOn. I remaIn seIzed In the event the partIes encounter dIfficultIes In ImplementIng thIS award. Dated thIS 10th day of June, 2003 .~. . ., r .. . In, .., . . _ .: 1>> :. ,: .:.' Loretta Mikus, Vice-Chair