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HomeMy WebLinkAbout1984-0751.Avery.85-10-17. IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: OPSEU (G. Avery) and Grievor The Crown in Right of Ontario (Ministry of Transportation and Communications) Employer R. J. Roberts Vice-Chairman R. Cochrane Member D. 0. Middleton Member S. Goudge Counsel Gowling & Henderson Barristers & Solicitors D. W. Brown, Q.C. Crown Law Office Civil Ministry of the Attorney General January 8, 1985 2. DECISION In this arbitration, the grievor, who was an Apprentice Mechanic, grieves that he was unjustly dismissed. It seems that upon completion of his apprenticeship, the Ministry declined to ,offer him further employment as a Journeyman Mechanic. This move was made by the Ministry pursuant to a provision of the Conditions of Employment that the grievor signed when he entered the Ministry's Apprenticeship Program. For reasons which follow, the grievance is dismissed. On September 25, 1979, the grievor entered the Apprentice- .ship Program of the Ministry. At that time, he commenced employment as an Apprentice Mechanic with the Maintenance Section,of the Ministry in North Bay, Ontario. Pursuant to the requirements of the Apprenticeship and Tradesmen's Qualification Act, R.S.Q. 1980, c. 24, the grievor and the Ministry entered into a contract of apprenticeship which specified, in general terms, the duties to each other of the Apprentice and Employer, and set forth, in progress- ively increasing order, the percentage of the Journeyman's rate that the grievor would earn at various stages of his apprenticeship. This contract was duly registered with the Apprenticeship Branch of the Ministry of Colleges and Universities. In addition to the foregoing contract, the grievor also signed another document entitled, Conditions of Employment Form PR43B. For the most part, this document consisted of a pre- printed form setting forth a number of general conditions of employment which might apply to any member of the bargaining unik. 5 ,. i. 3. In the griever's case, however, the form included an additional type-written page, which was specific to Apprentice Tradesmen. This page read was follows: Employment under the Contract of Apprenticeship will be in accordance with the Apprenticeship and Tradesmen's .Qualification Act. Upon successful completion of the required apprenticeship, further employment in the trade will be dependent upon available openings in that trade. In essence, this was a notice to the grievor that if there were no openings available for him at the completion of .his apprenticeship, his employment relationship with the Ministry would terminate. Apparently, this addendum to the conditions of employment form was required by the provisions of the Ministry's Manual of Procedures relating to the rec~ruitment of,apprentice tradesmen. These procedures provided, in pertinent part, that the conditions of employment form for an apprentice tradesman must include an addendum clearly stating the apprentice's understanding that he or she "cannot be guaranteed further employment upon successful completion of the required apprenticeship." The Manual of Procedures also directed that.the procedures with respect to apprentices "should be read in conjunction with Ministry Directive, Administration,. General, B-12. This directive provided, in pertinent part, as follows: 4. PURPOSE: To state the Ministry's policy concerning the hire, training, compensation and employment of apprentice tradesmen and their subsequent employment once they have graduated from their apprenticeships. POLICY: It is the Ministry's policy to train people so the Ministry's needs for skilled tradesmen are met. To that end, recognizing that mechanics constitute the majority of the Ministry's need for tradesmen, the Ministry will attempt to employ up to one apprentice mechanic for every four mechanics in the Districts' Garages and will employ at least one apprentice mechanic in each District Garage . . . In addition, for all of its apprentices, the Ministry will: ..T (iii) offer them employment once they graduate from their apprentice training programs subject . to: - their satisfactory performance during their apprentice training period: - the.availability of suitable vacancies: - their willingness to relocate should it be necessary: and - (in the case of graduate mechanics) their willingness to take further training courses as Heavy Duty Equipment Mechanic Apprentices. This directive, again, made it clear that employment was not to be guaranteed to apprentices' upon completion of their training periods. Witnesses for the Ministry indica.ted that the long-standing practice of the Ministry with respect to the hiring of apprentices had been in accordance with the above procedures and directive. Mr. B. MacKinnon, the District Engineer in North Bay, testified that when he was a District Maintenance Engineer in Sudbury in the early 1970's, he participated in determining whether there was a position available at the end of any emp tloyee's apprenticesh and, if not, to deny further employment. Mr. H. McCormack, the Head of Personnel Services, Northern Region, further testified that the grievor's apprenticeship was handled like all others, ip 5.. in the sense that the grievor was treated as continuing on probation- ary.staff from year to year up to and including the termination of his apprenticeship. This was in accordance with a procedure in the Ministry's Manual of Procedures, which stated, "All Apprentice Tradesmen will be hired on Probationary Staff.- (All apprentices must -lgn a contract of apprenticeship.) Re-appointment to' Probationary Staff will be subject to renewal each successive year until expiration of the Contract of Apprenticeship." At the hearing, it was submitted on behalf of the grievor that the adherence. of the Ministry to the foregoing practices and procedures was unavailing, because they were inconsistent withy the vested right~s of the grievor under the provisions of the Collective Agreement. It was pointed out that the Collective Agree- ment did not contain any special provisions relating to the treatment of apprentices. This meant, it was submitted, that the grievor, as a member of the bargaining unit, was entitled to all of the a rights of employees thereunder, including the right to a probationary period of no more than one year in length. Since the grievor had been employed for five years, his termination could not be effected without recourse. The grievor , it was submitted, had the right to be retained unless dismissed for just cause. .1 : . 6. This was a powerful legal argument, and a potentially far- reaching one. If successful, it would have sweeping consequences-- the complete dismantling of the Ministry's long-standing Apprentice- ship Program. Gone would be the policy of attempting to hire one apprentice for every four Journeyman. A more restrictive policy, perhaps designed to match apprenticeships to potential openings in the.permanent staff, would have to replace it. This would be different, given that apprenticeships for eg., mechanics, last for a period of five years. It would not appear to be a simple matter to forcast actual requirements five years down the road. It does not seem to the Board that just because the unique status of apprentices went unmentioned in the express provisions of the Collective Agreement and several of its predecessors, the Ministry's long-standing apprenticeship program must fall by the wayside. At a minimum, there must be raised in equity against any challenge to its entrenched elements, including the tentative nature of future employment as a Journeyman upon completion of the training period. while there is no question that the Apprentice- ship Training Program was a unilateral Management scheme, it was one which was openly and notoyiously practiced over a considerable period of time. Yet the evidence did not disclose any challenge by the Union to the operation of the program until the present arbitration. In these circumstances, the Union cannot suddenly turn and insist upon enforcement of its strict legal rights under the Collective Agreement. There must be notice which is adequate , enough .in length to afford the Employer an opportunity to resile fron its reliance upon the implicit promise not to insist upon strict I 7. contractual rights. There was no evidence of any such notice in the case at hand., Similarly, there must be raised an equity against the grievor's assertion of his individual rights under the Crown Employees Collective Bargaining Act. There seems to be little doubt that the grievor knew that under the Ministry'sApprenticeship Training Program, there were but tentative prospects for employment as a Journeyman Mechanic upon completion of his apprenticeship training period. At the outset of his apprenticeship, it was made clear to him in the conditions of employment which he signed that "further employment in the trade will be dependent upon available openi,ngs.,in~ that trade." According to the evidence, at about the time the qrievor completed his training, there was but one permanent position available. There were two .apprentices, ~the qrievor and Mr. Detta, to fill that opening. Even though the qrievor completed his apprenticeship first, there was nothing in the Apprenticeship Program to require that opening to be made available to him. It was not made available, as the Ministry indicated in a letter to the qrievor dated August 10, 1984, because "we feel that your overall performance during the Apprenticeship Program has not been to a satisfactory standard, and thus, we are not prepared to offer you a permanent position." The grievance is dismissed. .i ‘. i. 1 905 8. DATED, at London, Ontario, this 17thday of October /- / H ,. ( i I ,,- ----- ~'I r./$_ Roberts, Vice Chairman "I Dissent" R. Cochrane, Member B. Middleton