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HomeMy WebLinkAbout1985-1468.Genery.89-09-12 Decision180 Dundas STREET WEST. TORONTO. ONTARIO. M5G 1Z8 -SUITE 2100 Between Before: For the Grievor IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Hearings: OPSEU (G. Genery) - and - The Crown in the Right of Ontario (Ministry of Transportation) D. Fraser T. Traves G. Milley Neil R. Wilson, Counsel Gowling and Henderson Barristers and Solicitors Ken Cribbie, Staff RelationS Advisor Human Resources Branch Ministry of Transportation July 10th, 1987 and April 7th, 1989 TELEPHONE^ 416/598- O688 1468/85 Grievor Employer Vice-Chairperson Member Member 2 In this matter, counsel have agreed on a Statement of Facts which both outlines the grievance and sets the background. That statement reads as follows : STATEMENT T OF FACTS 1. The Grievor, David Genery, grieved on November 25, 1985 that he had not been recalled by the Employer to work for the winter season of 1985-86 in the capacity of Manual Worker (Control Clerk) (commonly referred to as a “Checker” 1 at Canf ield, Patrol Nine. 2. Transportation as a seasonal employee each winter since 1974-75. The positions in the Unclassified Service held by the Grievor at Canfield, Patrol Nine and the dates of his employment pursuant to contract with the Employer are set out in Schedule "A". The Grievor had been employed with the Ministry of 3. In the 1985-86 winter season, four staff were hired to work at Canfield Patrol Nine: one classified staff (K. Thompson) and three seasonal staff (D. Lint, W. Hoffman and D.F. Martin). The Grievor was not recalled to work during this season. 4. Mr. Lint had been employed with the Ministry each winter since 1970 on a seasonal basis. the Unclassified Service held by Mr. Lint at Canfield, Patrol Nine and the dates of his employment pursuant to contract with the Employer are set out in Schedule “B”. The positions in 5. Mr. Hoffman had been employed with the Ministry each winter since 1980 on a seasonal basis. The positions in the Unclassified Service held by Mr. Hoffman at Canfield, Patrol Nine and the dates of his employment pursuant to contract with the Employer are set out in Schedule “C”. 6. Mr. Martin had been employed with the Ministry each winter since 1957 on a seasonal basis. The positions in the Unclassified Service held by Mr. Martin at Canfield, Patrol Nine and the dates of his employment pursuant to contract with the Employer are set out in Schedule 7. The Employer acknowledges that at the date of the grievance the Grievor had seniority as defined in Article 3.19 of the Collective Agreement and right of recall as specified in Article 3.20. 8. The Parties hereto agree that, for the purposes of Article 3.19.1, pursuant to a Statement of Intent dated August, 1985 between the Employer and the Union, seniority is calculated as all hours worked as a seasonal employee at the straight-time rate commencing January 1, 1984. 3 9. Commencing January 1, 1984, for determining seniority, the relevant following number of hours: (a) David Genery - (b) D. Lint (C) W. Hoffman - (d) D.F. Martin - - We have not set out the schedules to the the purposes of employees worked 1352 hours hours hours 1312 hours the statement, as they are essentially supportive of the agreed matters. Relevant portions of the public Ser vice Act; and the collective agreement are set out below: 1. In this Act, . ...... ( i ) "unclassified service1' means the part of the public service that is composed of positions to which persons are appointed by a minister under this Act. R.S.O. 1980, C. 418, s.1." 3.16 Sections 3.17 to 3.35 apply only to seasonal employees. 3.17 DEFINITION A seasonal employee is an employee appointed for a period of at least eight (8) consecutive weeks to an annually recurring full-time position in the unclassified service in a ministry. For purposes of this definition full-time means a minimum of thirty-six and one-quarter (36 1/41 or forty (40) hours per week, as applicable. 4 3.18 PROBATIONARY PERIOD The probationary period for a seasonal employee shall be two (2) full periods of seasonal employment of at least eight (8) consecutive weeks each, worked in consecutive years in the same position in the same ministry. SEN1 OR I TY within a ministry will accumulate upon completion of his probationary period and shall include: 3.19.1 A seasonal employee's seniority (a) all hours worked as a seasonal employee at the straight-time rate; (b) periods of authorized paid leave in accordance with Section 3.31, Attendance Credits and Sick Leave. ...... JOB SECURITY Seasonal employees who have completed their probationary period shall be offered employment in their former positions in the following season on the basis of seniority. 3.20.1 This grievance turns on the interpretation of the phrase "in their former positions" found in article 3.20.1. It arises this way. Mr. Genery has grieved that he had not been recalled to work for the winter season of 1985-86 in the capacity of Manual Worker (Control Clerk), a position commonly referred to as a “Checker” at Canfield, Patrol Nine, in breach of Article 3.20.1 and others. As the agreed facts show, three seasonal staff (D. Lint, W. Hoffman and D.F. Martin) were all recalled for the winter season of 1985-86 to work as Checkers, and Mr. Genery had “seniority within a ministry" as provided in Article 3.19.1 to them all. He had completed his probationary period as 5 required by Article 3.19.1 as a Snow Plow Helper, in order to accumulate that seniority. However, the grievor was not recalled to work as a Checker that winter, in preference to the other three with less seniority within the Ministry. reason is found in the employer's interpretation of Article 3.20.1 containing the recall rights. with seniority to employment "in their former positions". The That Article provides a recall right for seasonal employees It is the employer's interpretation of that phrase, and its position in this hearing, that it requires that a seasonal employee must have completed the probationary requirement of two full periods of seasonal employment (as found in Article 3.19.1) in a position, before recall rights arise under Article 3.20.1 to that position. Mr. Genery had completed his probationary period, but as a Snow Plow Helper, and not a Checker. He had seniority within the Ministry, to the other three who were recalled, but he did not have recall rights under Article 3.20.1. The union position is that the recall rights under Article 3.20.1 to employment "in their former positions", provides a recall right to any position which has been held in the past, by the employee with seniority. position is founded in the following arguments. The union Section l(i) of the public Service Act provides that the unclassified service is composed of “positions” to which a person is appointed. appointed, an employee must complete a probationary period as required in Article 3.18 "in the same position in the same ministry". That is an express limitation on the concept of "position". However, once that is completed, Once 6 seniority is accumulated "within a ministry", for, among other things “all hours worked as a seasonal employee". a specific position within a ministry; seniority is ministry-wide, and is accumulated after probation for all hours worked in any position "within a ministry" as a seasonal employee. In other words, probation is limited to That ministry-wide seniority is the seniority found in the recall article under analyses, Article 3.20.1. positions” in that Article must mean positions in which seniority was accrued. It can not be limited to the probationary position found in Article 3.18 which contemplates work "in the same position in the same ministry". Therefore the phrase “in their former Counsel for the union referred to two cases in support of this position; Furniss (602/86), and Beacock (1249/85) . In Furniss, the issue was whether the grievor had completed his probationary period under Article 3.18, thus becoming entitled to consideration for recall under Article 3.20.1. As has been noted, Article 3.18 has certain requirements, for two periods of seasonal employment “in the same position in the same ministry". Warden, except in different locations for three years. job title in each year was different, referring to the location in each instance as well as to the jobs of Park Warden. The grievor had completed that requirement as a Park As a consequent, the The board in that case was accordingly asked by the union to take a broad view of geographic location. specific location within a specific organizational branch. in Article 3.18, and not restrict it to job title or The employer contended that “position” should refer to a The board found for 7 the union, and in doing so, noted at p.9 that "we are not satisfied that the work "position” is used in all contents to mean precisely the same thing. It is not a term of art. In reaching that conclusion, it noted earlier (at p.8) that the seniority which accumulates under Article 3.19.1 is not based on the number of hours based on a particular position. some general principles, but is not particularly apposite in its facts. The case accordingly reaffirms The Beacock case is both more relevant and more problematic, and both parties found comfort in their varying interpretations of its meaning. Beacock had worked as a seasonal employee in the position of Snow Plow Helper for the Ministry of Transportation and Communications for a number of seasons prior to the 1985-86 winter, but was offered no employment that winter. Others with less ministry-wide seniority were given seasonal jobs that winter as Day Checker and Night Patrolman. position, although he had completed his probationary period. that his recall rights under Article 3.20.1 "to their former positions” Beacock had never formally occupied either The union claimed referred to all available seasonal positions. The employer responded that such recall rights under that article arose only in respect of the job in which the employee had served probation. The board found as follows: Clearly to complete the probationary period an employee must work a specified time at the job. However, after that there is nothing to prevent the employee seeking or accepting employment in a different capacity. For example, an individual could work as a Snow Plough Helper for two (2) seasons, thereby satisfying probation. He or she could then work two (2) seasons as a Day Checker, and an additional two (2) as a Night Patrolman. That employee would have three (3) former positions in which to exercise seniority the next year. In other words, to exercise seniority in a 8 Classification, one must have actually formerly occupied that classification. This proposition is further reinforced by the fact that Article 3.20.1 speaks of "seasonal employees" (plural) returning to "their former positions". and "former" imply a proprietary interest which vest through previous performance of the function. the Union's proposed interpretation the Article would have to speak of seasonal employees returning to former positions. The words To support The grievance is hereby dismissed. Counsel for the union and employee herein disagree as to the effect of this decision. It is the Union's position that the example provided in the first paragraph quoted above, suggesting a two season requirement, is an advisory example and obiter W, not binding on us. The reason is that Beacock never formally occupied the position he claimed. Thus an example suggesting that the two-year probation must be satisfied before seniority can be exercised on recall, is not a finding on the relevant facts or issues of the Beacock claim, where the position had never been occupied. In addition, the example is hypothetical. The conclusion in that first paragraph is on point on the merits of the Beacock case, as it requires occupation of a classification, which Beacock did not, but the conclusion does not refer to probation. Finally, our issue is different from that found in Beacock, as Mr. Genery did formally occupy the position to which he has sought recall rights. Counsel for the union suggests that the latter paragraph quoted above is the operative one for our purposes, where, in considering Article 3.20.1 recall rights, it refers to "seasonal employees" (plural), returning to their former positions", and concludes that "The words "their" and “former” imply a proprietary interest which vests through previous performance of the function". 9 Counsel for the employer agrees that seniority does not attach to any particular job, but submits that the issue is rather whether an employee who worked in a position for a very brief period of time has recall rights to that position. recall rights can arise to more than one position, they only arise after the employee has worked the requisite two seasons in the position. He says that the examples given in the decision indicate a specific two-season requirement. He proposes that although the Beacock case makes it clear that Our view of these matters is as follows. First, on the plain language, we agree with Furniss that the word "position" is not a term of art, and takes its meaning from content. requires that to exercise recall seniority "one must have actually formerly occupied that classification". suggests that the plural use of "seasonal employees" returning to "their former positions" implies ''a proprietary interest which vests through previous performance of the function". Second, we agree with Beacock, where the board We also agree with the board therein where it None of the Beacock conclusions noted above are obiter, as they relate directly to the material facts, involving a grievor who had never formally occupied a position. rights herein, insofar as he had previously occupied the position he seeks rights to, and had previously performed the function. Furthermore, they support Mr. Genery's claim for recall It remains to decide whether the grievor must have completed a probationary period in the distinct position before recall rights arise. think not, for the following reasons. We 10 First, there is only one probationary period in the collective agreement for seasonal employees, found in Article 3.18. position in the same ministry", but once it is over, it is over, and seniority then accumulates "within a ministry" by Article 3.19.1 for all hours worked, and it is common ground that it can accumulate in a variety of positions. In such positions the incumbent is sometimes called "seniority-rated”, and there It is limited to the "same are other terms, but he or she is no longer a probationer. This is recognized in the recall article, Article 3.20.1, where of seasonal employees "who have completed their probationary period". t spea That article thereafter says that they then “shall be offered employment in their IS former positions in the following season on the basis of seniority". of a probationary period in the singular, and positions in plural. have said “probationary periods”, which might suggest a probation for each position, but it did not, even though "employees" and "positions" is plural. It talks It could Accordingly, on its face, the article has no requirement of completion of multiple probations, one for each position, before recall rights arise. Secondly, and this is in large part the converse of the matter noted above, should the employer's interpretation hold, it would require amendment of Article 3.18, which provides for a single probationary period in the same position. The employer's position relies on the examples in Beaock which suggest a two season requirement before recall seniority can be exercised. The decision is not clear on this matter for the Day checker and Night Patrolman positions, but it can be assumed that the two season reference arises from the "two full periods of seasonal employment” found in Article 3.18 dealing with the probationary period, as there is no other source for such a 11 requirement in relative parts of the collective agreement. For such probation to recur, Article 3.18, would have to be reworded to provide reversion to a probationary status each time a seasonal employee held a new position, Furthermore, Article 3.19.1 would have to be amended to account for possible multiple probationary periods in new positions, where seniority, once started in one position, stops in a new one because a new probationary period is commenced. In sum, the collective agreement does not lend itself to the interpretation proposed by the employer. In conclusion, the two season requirement found in the first-quoted paragraph of Beacock for the positions of Day Checker, and Night Patrolman, does not have any foundation in the current collective agreement once initial probation is completed, and we cannot import it as a requirement for "former positions in Article 3.20.1 once probation is initially completed and seniority accumulates. We do not find the ratio of the peacock decision to be incorrect. We have accepted it earlier as it applies to the material facts of that case. do find however, with respect, that the hypothetical example, which we consider obiter dicta, to not be persuasive in light of the express wording of the collective agreement, and we do not find ourselves bound to follow that example. We Therefore we find that "positions” is not a fixed term of art as found in the phrase "in their former positions” in Article 3.20.1. indicates a reference to multiple former positions, and not just the one in which probation was served. In light of Furniss, we find that the number of hours in a former position does not matter, and in light of Beacock, we find Its plural nature 12 that such a position must have actually been formerly occupied, by a formal appointment, in our view, under s.1(i) of the Public S ervice Act . been so occupied, we agree with Beacock that a "proprietary interest" arises, and recall seniority can be exercised. If it has For all the reasons given above, we find that the "former positions'' described in Article 3.20.1 refer to any position formally held in the past by a seasonal employee who has completed his or her probationary period, and the grievance accordingly succeeds. The question of remedy remains. The parties agree that the grievor had more seniority at the relevant time than an employee by the name of D.F. Martin, who was recalled to a Checker position in the winter of 1985-86, and that if the grievance succeeds on the merits, the grievor's entitlement in that winter would arise by displacing Martin. board that should the grievance succeed, an examination of the seniority of the grievor and others who were recalled in the winters of 1986-87 and 1987-88, may produce a consequent entitlement for the grievor for those winters. Furthermore, the union has requested interest on any compensation payable as a result of such entitlements, and the employer does not dispute this board's right to award such interest. The parties have also advised the We accordingly declare that the grievor be made whole in respect of the matters noted above, with interest paid on any compensation due, according to the principles established in earlier awards of the Board. As the parties have 13 requested, we remit this matter back to them for their determination, and declare that we remain seized to deal with this matter should they not succeed. D. Fraser, Vice-Chairperson T. Traves, Member G. Milley, Member