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HomeMy WebLinkAbout1977-0075.Harris.78-09-14Oetween: Mr. G. Harris ( The Crown in Right of Ontario Mjnistry of Community and Social Services Before: --- Professor Katherine Sxxintor Mr. E. J. Cr;ini Mr. Harry Simon Vice-Chairman Yember Member For the Grievor: Mrs. Lillian Stevens Grievance Officer Ontario Public Service ERplO.yeeS Unicn 1901 Ycnge Street Toronto, Ontario For the Employer: W. R. Marston Employee Relaticns Officer Personnel Services Branch Ininistry of Ccmmunity and Social Services 5th Floor Hepburn 6lock Queen's Park, Toronto flearing: Suite 2135 it33 Dundas St. X. Toronto, Cntarjc ?ugust !lrh, 1978 .I ?& ti Q II - 2 - In this grievance, the grievor has claimed that he was unjustly demoted from the position of Mechanic I, to which he was entitled on the basis of seniority. The dispute involved the interests of a third party, Mr. Frank Cameron, who presently holds the position of Mechanic I. Mr. Cameron was present during the hearing of the grievance. The grievor, Douglas Harris, was appointed to the position of Building Cleaner and Helper I in Group 2 of the Unclassified Service on February 10, 1976. He was attached to the Rideau Regional Centre of the Ministry of Community and Sotial Services in Smiths Falls. On. September 20, 1976 he was appointed to the regular civil service as a probationary employee in the position of Building Cleaner 2. He subsequently entered a competition for one of two available jobs as Mechanic I in the Maintenance Department, and was offered a position on December 9, 1976, to commence the new job on January 10, 1977. Mr. Cameron, the third party, has a somewhat similar employment history with the Ministry of Community and Social Services; although his period of employment with the Unclassified Service commenced before that of Mr. Harris - on June 9, 1975. He was appointed to the regular service as a probationary employee on the same day (September 20, 1976). He was also a successful candidate in the competition for Mechanic I, obtaining the second of the two Mechanic I positions advertised and commencing work January IO, 1977. In March, 1977 the staff of the Maintenance Department was reduced. Mr. Harris, the grievor, was returned to the Housekeeping Department to the position of Building Cleaner 2. Feeling that he had been improperly demoted, he grieved. -3- The collective agreement (expiring January 27, 1977) is silent as to the procedure to be used on demotions. The union has argued that the employer should have treated the case as one in which two employees of equal seniority sought the same job. With seniority equal (here, dating from the period of appointment to the probationary staff on September 20, 1976), the employer should have looked at the relative ability of the two employees. Since Harris,was offered the position of Mechanic I on December 9, 1976, while Cameron was offered his position on January 5, 1977, after &he initial person selected proved to be unqualified, the union argued that Harris was more qualified and should retain the job. The Ministry made its decision as to which employee to demote on the basis of s.32(6) of Regulation 749 under The Public Service A& (R.R.o. 1970, Reg. 749). That subsection reads: - (6) A public servant shall not be released while there is a public servant, (a) who is in the sag classification or position or in another classification or position in which the public ser’vant has served during his current term of continuous employment; (b) who is employed in the same administrative district or unit,. institution or other work area in the .same ministry; (c) who has similar qualifications; and (d) who has a fewer number of years of completed service. . Q>C ( -4- The Ministry, feeling that Harris and Cameron had "similar qualifications" (since they had both met the requirements of the position), focussed on "completed years of service." Since Cameron had been within the Ministry since June 9, 1975 (albeit as a member of the Unclassified Service) and Harris since February 10, 1976, Cameron retained the position. The issue facing this Board is the meaning of "completed service." Should the period during which the employees were in the unclassified service be included in the period of "years of completed service", for purposes of demotion? Section 32 gives little guidance, except that subsection (2) says that the section does not apply to......."persons appointed to Group 2 of the unclassified service." The intention behind that exclusion would appear to be to protect public servants appointed to the regular service in preference to temporary appointees in the unclassified service at times of lay-off. That subsection does not assist us here, for both Harris and.Cameron. while initially appointed to Group 2 of the unclassified service, held probationary status at the time of lay-off. Subsection (2) does not indicate whether the period of employment in the unclassified service could subsequently count towards years of completed service in subsection 6. That would have to be determined by looking at subsection 6 in conjunction with the seniority provisions of the collective agreement. The collective agreement does not provide much guidance either, having no provision to cover demotions. Article 19.1 deals with i calculation of seniority (or "length of continuous service") in the following terms - 19.1 Length of continuous service (seniority) for each employee covered by this Agreement shall be Province-wide and shall be established upon com- pletion of the probationary period of not more than one (1) year and will then com?nence from the date of the employee's hire. Seniority is established upon completion of the probationary period. Neither Harris nor Cameron had reached this stage. Seniority would then date back to the date of the employee's hire. We need not enter upon an extended discussion of the scope of this phrase "employee's hire" at this time. It is difficult to see how the period which some employees have spent in the unclassif,ied service can be included in the calculation Of Seniority, for s.l(l)(g)(v) and (vi) of the crown Employees Collective Bargaining Act exclude certain members of the unclassified service from the definition of "employee" under the statute. It is doubtful that they can claim that their seniority dates from their entry into the -unclassified service, since they are not "employees" under the Act (nor within the collective agreement) because of s.l(l)(g) (v) & (vi). That would not seem to be the case for Harris and Cameron, since they do not appear to fall within these exclusions and, therefore, appear to be "employees" from the period of their entry into the unclassified service. (See Ontario Public Service Employees union & Ministry of the dttOmey_ general (Fitzsimns & vice) l/77.) However, in this case, article lg.1 can give us only limited assistance, as these employees had not yet completed the probationary period. -6- The Board was referred to article 3.4.3 of the collective agreement for further assistance. That section reads: Employment in either category shall not be considered continuous service. dn employee in either category who is appointed to the probationary status of the Civil Service shall be considered to be a new employee. Provided however, that if such a position becomes permanent then the time the employee actually worked shall be deducted from the employee‘s probationary period, if the employee has worked within the year prior to the appointment to probationary staff. Article 3.4.3 deals with employees who fall within a narrow class: those exempted from the group of public servants who have been excluded from the definition of "employee" by s.l(l) (g) (v)~ of the crown employees Collective Bargaining Act. That exemption reads: (V) a student employed during the student% regular vacation period or on a co-operative educational training program or a person not ordinarily required to work more than one-third of the non& period for persons performing similar work except where the person works on a regular and continuing basis, Article 3.4.3 states that employees in the unclassified service who fall within the s.l(l)(g)(v) exemption cannot regard their period of service in the unclassified service as "continuous service." They must be regarded as new employees when appointed to probationary status. If-their position becomes permanent, the time that the employee has actually worked will be deducted from the probationary period. The purpose of article 3.4.3 was discussed by another panel of-this Board in M&mood and Ministry of correctional Services, X5/76. There the r &+.r’i -7- grievor claimed credit for his period of employment in the unclassified service in calculating the length of his probationary period. Professor Beatty refused to accept this proposition, noting that the probationary period was designed to give the employer an opportunity to evaluate the employee's suitability in a particular position. The employer might not have considered this question of suitability while the employee was on temporary staff in the Unclassified Service and should be given time to do so when permanent employment was contemplated. The ~&mood case does nothing to assist the Board in the disposition of the present case. Here we are not dealing with the periods of employment which should figure in the calculation. of an employee's probationary period. We ares dealing here with the years of employment service which should go into the calculus of "years of completed service" when an employee must be demoted according to s.32(6) of Regulation 749. As Professor Beatty noted in ~ahmood, there is good reason' to exclude the period in the Unclassified Service when an employee is appointed to the regular service on probation. The employer needs an opportunity to evaluate the employee's suitability for that particular permanent position. There is no equivalent rationale for excluding the period of Unclassified Service from the calculation of years of completed service when a demotion situation arises. The employee with the greater number of years of service with the Ministry has built up a form of equity in his job, and it is only fair and reasonable to recognize this in choosing which of two similarly qualified employees must be demoted. The parties concluded, in article 3.4.3, that employees should be credited with their years of unclassified service at an appropriate time. It is also reasonable " for the employer to take this period of unclassified service into account when deciding the length of an employee's service, for purposes of demotion or lay-off, particularly when we are dealing with two employees with similar employment histories. Therefore, since Mr. Cameron has been employed longer than Mr. Harris by the Ministry, he was entitled to the Mechanic I position. The grievance is dismissed. Dated at Toronto this 14th day of September, 1978. Katherine Swinton - Vice-Chairman I concur E. J. Orsini - Member I concur Harry Simon - Member