GSB #1609/96, 1907/96, 1934/96, 2214/96, 36/97, 0727/98

OPSEU #96H026, 96H051, 96H253, 96D983, 97C188, 98C345

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

Between: OPSEU (Bothwell et al.) Grievor

• and -

The Crown In Right of Ontario

(Ministry of Community and Social Services) Employer

Before: Owen V. Gray Vice-Chair

Decision

1In response to my order of August 28, 2000, the union has filed written submissions with respect to 22 Continuous Service Date (“CSD”) grievances, and the employer has filed a written reply. This order deals with the 12 grievances listed in Schedule “A,” which have been settled or can be disposed of on the basis of the material now before me.

Grievances of Karen Sterling and Wayne Taylor

2The parties have advised the Board that these grievances have been settled. Accordingly, no disposition is necessary.

Grievances of Ruth Bothwell, Dave Calverly, Beatrice Cook, Maxine Dierkens, Sandra Durant, Bonnie Horn, Marilyn Levasseur and Celina Longpre-Sanscartier

3The union submissions with respect to the grievances of Ruth Bothwell, Dave Calverly, Beatrice Cook, Maxine Dierkens, Sandra Durant, Bonnie Horn, Marilyn Levasseur and Celina Longpre-Sanscartier all contain unqualified statements that the union does not dispute the employer’s calculation of the grievor’s CSD and that there is no dispute between the parties. Accordingly, those grievances are dismissed.

Grievance of Shirley Ferencz

4In its submission with respect to this grievance, the union states that it accepts that the earliest possible CSD for an employee with this grievor’s employment history is the one with which she was eventually credited: January 1, 1984. That the calculation of her CSD cannot include credit for part-time unclassified employment prior to January 1, 1984 is very clear from the provisions of the collective agreements in effect at and since the time the grievor was appointed to the classified service as a regular part-time employee. It is unfortunate that at one stage a Human Resources Consultant told the grievor that she could be credited with a CSD of November 1, 1979 CSD. That was not consistent with the provisions of the relevant collective agreements, and such a departure from the collective agreement could not be effective without the union’s consent, which was not given. Accordingly, this grievance is dismissed.

Grievance of Shirley Farmer

5Shirley Farmer was appointed to the Regular Part-Time classified service on January 1, 1986. From May 9, 1984 to the date of her appointment, she had been employed on a part-time unclassified basis. Before that, from January 7 to May 8, 1984, she had been on maternity leave. For almost 4 years prior to that leave she had been employed on a part-time unclassified basis.

6The union’s submission with respect to Ms. Farmer’s grievance is as follows:

The issue in dispute between the parties is whether or not the grievor should receive credit for her 122‑day maternity leave, from January 07, 1984 to May 08, 1984. (#17 in the attached employer submission). The Union recognizes and agrees with the credit of service prior to January 07, 1984.

The Union is aware of this Vice‑Chair’s decision in Myers, GSB 1625/96.

It is the Unions submission that by not crediting the grievor with the actual period of her maternity leave that there exists the potential of adverse effect discrimination. The most significant impact could be that the grievor is laid off instead of another employee whose CSD is less than 122 days more than the grievor's.

7Having carefully reviewed the employer’s initial and reply submissions, it does appear that the only issue in dispute between the parties is whether or not the grievor should receive credit for her 122‑day maternity leave. I note particularly that I am not called upon to consider the correctness of the credit given to the grievor for part-time unclassified service prior to January 7, 1984.

8The grievance in Myers, 1625/96 (Gray), was also concerned with the credit to be given to an appointee to the Regular Part-Time classified service for prior part-time unclassified employment. The grievor’s pre-appointment active service there had also been interrupted by a maternity or pregnancy leave. The interaction of the collective agreement’s rules for calculating CSD’s with the Human Rights Code and the provisions the Employment Standards Act (“the ESA”) in force prior to December 20, 1990 was thoroughly argued. Although the result for that grievor ultimately did not depend on the outcome of those arguments, I dealt with them in the decision because the parties had agreed that the grievance there was in the nature of a test case and that other cases might turn on the outcome.

9In paragraph 28 of my decision in Myers, I noted that

[I]gnoring for a moment any effect the Employment Standards Act (“the ESA”) or the Human Rights Code might have as regards a pregnancy leave, the language of Article 25.1 as it existed prior to 1992 clearly precluded credit for a period of unpaid leave and for any active, unclassified employment that preceded such a leave.

The effect of the relevant provisions of the ESA was described in paragraph 37:

[T]he effect of the ESA with respect to leaves prior to December 20, 1990 was and is that in making a calculation of seniority on the basis of continuous active service, credit must be given for active service prior to a pregnancy leave despite the intervention of the leave, but not for the period of the leave itself. … Where a period of employment for which credit would otherwise be given is broken by a pregnancy leave prior to December 20, 1990, credit is to be given for the portion prior to the leave but the result is adjusted to reflect the fact that the period of the leave itself is not credited in computing the continuous service date.

In short, absence on statutory pregnancy leave during pre-appointment unclassified employment is treated more favourably than other absences of the same duration in that the leave is not treated as a break in continuous service for purposes of determining whether credit should be given for service prior to the leave, although the period of the leave itself is not treated as though it were a period of active employment for purposes of calculating the CSD.

10For the reasons set out there, I concluded in Myers that the combined effect of the parties’ rules and the provisions of the ESA in effect before December 20, 1990 did not constitute discrimination on the basis of sex contrary to the Human Rights Code. I have considered whether I should now come to a different conclusion in light of the decision of the Court of Appeal in Ontario Nurses Association v. Orillia Soldiers Memorial Hospital (1999), 42 O.R. (2d) 692. I am satisfied that I should not. The basis, nature and impact of a calculation of pre-appointment service credits under the relevant provisions of these parties’ collective agreements make it something quite different from the seniority provision with which the arbitrator and the Court were concerned in Orillia Soldiers Memorial Hospital. I conclude that the combined effect of the parties’ rules and the provisions of the ESA in effect before December 20, 1990, as described here and in the Myers decision, did not constitute discrimination on the basis of sex contrary to the Human Rights Code.

11The employer was correct in not giving the grievor credit for the period during which she had been on maternity leave when it later calculated her CSD. As I have noted, that appears to be the only question put before me. My disposition of this grievance should not be taken as approving the employer’s calculation of the grievor’s CSD in any other respect.

12Ms. Farmer’s grievance is dismissed.

Dated at Toronto, this 16th day of October, 2000.

Schedule “A”

Grievor

OPSEU File

GSB File

Bothwell , Ruth

97C188

36/97

Calverly , Dave

96H253

2214/96

Cook , Beatrice

96H051

1907/96

Dierkans , Maxine

96H051

1907/96

Durant , Sandra

96H026

1934/96 1785/96

Farmer , Shirley

Ferencz , Shirley Anne

98C345

0727/98

Horn, Bonnie

96H026

1934/96

Levasseur, Marilyn

96D983

1609/96

Longpre‑Sanscartier , Celina

Sterling , Karen

96H051

1907/96

Taylor, Wayne

96H051

1907/96