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HomeMy WebLinkAbout2006-1422.Bjerkelund.07-11-28 Decision Commission de Crown Employees Grievance Settlement règlement des griefs Board des employés de la Couronne Suite 600 Bureau 600 180 Dundas St. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tél. : (416) 326-1388 Fax (416) 326-1396 Téléc. : (416) 326-1396 GSB# 2006-1422 UNION# 2006-0605-0004 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Bjerkelund) Union - and - The Crown in Right of Ontario (Ministry of Natural Resources) Employer BEFOREVice-Chair Nimal Dissanayake FOR THE UNION Mark Barclay Grievance Officer Ontario Public Service Employees Union FOR THE EMPLOYER Paul Meier Counsel Ministry of Government Services HEARING November 21, 2007. 2 Decision The grievor, Ms. Cathy Bjerkelund, has filed a grievance dated August 2, 2006, claiming that the employer has failed to convert her from unclassified status to the full- time classified service as required by article 31 A.15 of the collective agreement. Following unsuccessful mediation attempts, the matter came before me for arbitration on November 21, 2007. At the hearing the parties engaged in discussions, and agreed to file a document, which in substance contained the facts agreed to, as well as the respective positions of the parties. With the intention of expediting the proceeding, the parties agreed that I should determine the grievance based by way of a ruling with brief reasons, based solely on this document, and the brief presentations made at the hearing, without the need to call any viva voce evidence or formal legal submissions. I note for clarity, that in the document set out below the parties have explicitly agreed that the determinations made herein are ?on a without prejudice or precedent basis?. The agreed upon facts and the respective positions of the parties The Grievor was an employee in the Unclassified Service. The Grievor has grieved the application of Article 31A.15 of the Collective Agreement. The Grievor?s grievance is dated August 2, 2006. The Grievor is seeking to be converted to the full-time classified service. Background The Grievor was hired on a Group 1 ?on call? contract beginning on March 5, 2001 by the Aviation and Forest Fire Management Branch (AFFMB) of the Ministry of Natural Resources (MNR) as an Aviation Clerk. The Grievor continued on this type of contract as an unclassified employee until March 31, 2004. 3 After reviewing the relevant documents and facts, the Parties agree that during the period from March 5, 2001 to March 31, 2004, the Grievor did not work full-time hours. On April 1, 2004, the Grievor was hired on a one-year full-time unclassified contract to fill the Receptionist (OA6) position for Aviation Services at the MNR?s Airport Hangar in Sault Ste. Marie. The position title was subsequently revised and is hereinafter referred to as ?Maintenance Section Support Clerk (Airport Hangar)?. After reviewing the relevant documents and facts, the Parties agree that during the period from April 1, 2004 to May 25, 2005, the Grievor was backfilling the position as a result of an approved leave of absence. However, as of May 26, 2005, the Maintenance Section Support Clerk (Airport Hangar) was vacant. As a result, based on the foregoing, it is not in dispute between the parties that the Article 31A.15 ?Conversion Clock? could not have started ?ticking? until May 26, 2005, at the earliest (if Article 31A.15 is applicable). Analysis of the application of Article 31A.15 Article 31A.15.1.1 of the Collective Agreement states: Where the same work has been performed by an employee in the Unclassified Service for a period of at least eighteen (18) consecutive months, except for situations where the unclassified employee is replacing a classified employee on a leave of absence authorized by the Employer or as provided for under the Central Collective Agreement, and where the ministry has determined that there is a continuing need for that work to be performed on a full-time basis, the ministry shall establish a position within the Classified Service to perform that work. The parties agree that if Article 31A.15 applies, the first step (Article 31A.15.1.1) requires: - the same work must be done. - the work must have been done for at least eighteen (18) consecutive months. - the 18 months must be exclusive of work resulting from leaves of absence. - The Employer must then determine that there is an ongoing need for the work. 4 Article 31A.15.1.2 states: Where the ministry has determined that it will convert a position in accordance with Article 31A.15.1.1, the status of the incumbent in the position will be converted from unclassified to classified, provided that the incumbent has been in the position in question for at least eighteen (18) months. Accordingly, the Parties agree that once ?the position? has been established in accordance with that first step of the process, an incumbent who has been in that particular position for at least eighteen (18) months will be converted from unclassified to classified. The Employer?s primary position is that its intention was always to post the Maintenance Section Support Clerk (Airport Hangar) after May 2005. There was no position to ?establish?. An existing position needed to be filled after it became vacant. The Parties agree that the Maintenance Section Support Clerk (Airport Hangar) position was posted for permanent full-time recruitment and the competition was held on July 5, 2006. Accordingly, the Employer submits that Article 31A.15 does not apply. The Union disagrees and submits that Article 31A.15 must be examined. In this respect, the Parties agree to the following facts: From May 26, 2005 to July 24, 2005, the Grievor continued in the position of Maintenance Section Support Clerk (Airport Hangar). From July 25, 2005 to December 31, 2005, the Grievor was offered a 6 month contract to backfill the Administrative Support Clerk (OA6) position in the Provincial Coordination Centre at Roberta Bondar Place in Sault Ste. Marie. This was extended until January 29, 2006 [hereinafter referred to as ?Administrative Support Clerk (Roberta Bondar Place)?]. On January 30, 2006, the Grievor started a 4 month contract in the Maintenance Section Support Clerk (Airport Hangar) (OA6) position. This contract ended on May 31, 2006. From June 1, 2006 to August 1, 2006, the Grievor was offered a 2 month contract to backfill in the Maintenance Records Clerk (OA8) position as the home incumbent was on an approved leave of absence. 5 Same Work The Union?s submission is that between May 26, 2005 and May 31, 2006, the Grievor held OA6 positions as either the Maintenance Section Support Clerk (Airport Hangar) and as an Administrative Support Clerk (Roberta Bondar Place) and therefore she did the ?same work?. The Union relies on the decision in McPhail et al. The Parties agree that any ?Conversion Clock? (if applicable) would have stopped ?ticking? on June 1, 2006 when the Grievor was offered and accepted a 2 month contract to backfill in the Maintenance Records Clerk (OA8) position (i.e. in a different classification) as the home incumbent was on an approved leave of absence. This contract ran from June 1, 2006 to August 1, 2006. The Employer?s submission is that even if it assumed that the Grievor did perform the ?same work? as a Maintenance Section Support Clerk (Airport Hangar) and an Administrative Support Clerk (Roberta Bondar Place) for the purposes of Article 31A.15, which is strictly denied by the Employer, the work was not performed for a period of at least 18 consecutive months. Rather, any potential ?Conversion Clock? would have run for approximately 12 months (i.e. from May 26, 2005 to June 1, 2006). Further, in the Employer?s submission, it cannot be said that there is an ongoing need for the work to be performed by an employee in the unclassified service in the Maintenance Section Support Clerk (Airport Hanger) position that needed to be ?converted? in accordance with the Article 31A.15 process. As submitted above, it is agreed that the Employer had posted the position for permanent full-time recruitment and the competition was held on July 5, 2006. The Employer submits that since the first step of the Article 31A.15 process is not met, the second step (the ?conversion of the employee?) is not therefore an issue. Issues The Parties agree that following are the issues to be determined, on a without prejudice or precedent basis: 1. Is Article 31A.15 applicable in these circumstances? 2. If Article 31A.15 is applicable, does the Grievor meet the test of that provision based on the facts set out above? If both questions are answered in the affirmative, then the matter will be remitted back to the parties. 6 Upon a review of the material before me, and assuming without finding that the article had application, I have concluded that the requirements of article 31 A.15 have not been met in the grievor?s circumstances. The basic pre-requisite for conversion under article 31 A. 15 is that an employee in the unclassified service must have performed the same work for a period of 18 consecutive months. That requirement has not met. In considering the facts before me two principles must be applied. First, in calculating the 18 months, article 31 A. 15 explicitly excludes any periods of time where the employee was replacing a classified employee on a leave of absence authorized by the employer. Second, in Re McPhail et al, 1873/97 etc. (Briggs) it was observed that ?generally speaking, because different classifications have different work duties and responsibilities, a different classification would, probably in most instances, bring a finding that the work is not the same. During the period April 1, 2004 to May 25, 2005, the grievor was replacing an incumbent who was on an approved leave of absence. Therefore, that period has to be excluded, and the parties have quite rightly agreed that the ?conversion clock? could not have started ticking until May 26, 2005 at the earliest. The facts indicate that in the periods from May 26, 2005 to July 24, 2005 (The Maintenance Section Support Clerk (Airport Hanger) position), from July 25, 2005 to January 29, 2006 (Administrative Support Clerk [Roberta Bondar Place] position), and from January 30, 2006 to May 31, 2006, the grievor continuously held positions in the 7 same classification of OA6. Based on the Re McPhail case (supra) if it is assumed that throughout this entire period from May 26, 2005 to May 31, 2006, the grievor performed ?same work? within the meaning of article 31 A.15, it still falls far short of the minimum of 18 consecutive months required for conversion. The subsequent contract the grievor had from June 1, 2006 to August 1, 2006 does not count for purposes of article 31 A.15 because that position of Maintenance Records Clerk was not only classified differently (as OA8), but was a backfill for an incumbent who was on an approved leave of absence. Therefore, the parties have agreed, rightly again, that the ?conversion clock? would have stopped ticking on June 1, 2006. I observe that even if somehow this period is taken into account, it still falls short of 18 months. May 26, 2005 to August 1, 2006 is only slightly over 14 months. Therefore, even then the test would not have been met. Therefore, in summary, it is my finding that the grievor does not meet the requirement of doing the same work for at least 18 consecutive months, and on that ground alone, the grievance must be, and is hereby dismissed. th Dated this 28 day of November 2007 at Toronto, Ontario. Nimal Dissanayake Vice-Chairperson