GSB#0533/96, 2828/96
UNION# 96D592, 97C155
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Malpage and Walker)
Grievor
-and-
The Crown in Right of Ontario
(Ministry of the Attorney General)
Employer
BEFORE Felicity D. Briggs Vice-Chair
FOR THE GRIEVOR George Richards Senior Grievance Officer Ontario Public Service Employees Union
FOR THE EMPLOYER Andrew Baker Counsel Legal Services Branch Management Board Secretariat
HEARING January 3, 2001 and December 3, 2001.
In the fall of 1998 the parties negotiated terms for the settlement of a number of grievances filed by employees at the London Court regarding conversion of their status from unclassified to classified. This decision considers issues relating to two of those employees, Paul Walker and Rosanne Malpage. I turn first to the matters concerning Paul Walker. The memorandum of agreement, dated November 12, 1998, regarding Mr. Walker stated:
Whereas the employee and OPSEU have filed a grievance, GSB NO 2828/96
And whereas the parties have agreed to resolve the grievance on a without prejudice or precedent basis
Therefore the parties agree as follows:
The Employer agrees to convert the Employee into a classified SO2 position with the London Court House as of June 24, 1998. Depending on the operational requirements of the London Court House, the Employee will continue to serve for a part of his duties in Elgin County.
The Employee will not receive any retroactive payments of entitlements because of the conversion for the period of June 24 1998 until November 16, 1998.
OPSEU and the Employee withdraw the above noted grievance immediately upon execution of this agreement.
OPSEU and the Employee hereby release and forever discharge the Employer, its Employees, agents servants and office-holders from all actions, causes of action and any liability whatsoever related directly or indirectly to the above noted grievance.
The Employee will have the normal entitlements under the collective agreement and the OPSEU Pension Plan for the purposes of any pension buy-back options.
The Parties agree that Ms. Briggs shall remain seized with regard to any dispute arising out of this agreement.
Pursuant to this agreement the Employer calculated the grievor’s Continuous Service Date (hereinafter referred to as “CSD”) to be June 15, 1994. It is this calculation that has caused the parties to reconvene this Board. In order to explain the nature of the dispute between the parties some history is required. This history was presented in the form of agreed facts.
Mr. Walker began with the London Court House as a Deputy Bailiff in 1981 on a fee-for- service basis. On April 1, 1989 he was hired as an unclassified court services officer on a part time basis. He continued to perform some work as a deputy bailiff after this appointment. He became an unclassified Sheriff Officer 1 in 1993 and no longer performed any duties as a bailiff.
The parties agreed that, notwithstanding reasonable attempts to find the necessary documents, the Ministry no longer had records for the period Mr. Walker worked on a fee-for-service basis.
In September 17, 1990, Chair Pamela Picher issued a decision of the Ontario Public Service Labour Relations Tribunal regarding the status of certain employees (hereinafter referred to as “the Picher decision”). The Tribunal found that various court employees, including fee-for-service deputy bailiffs were crown employees and public servants. At page 90 of that decision the Tribunal stated:
For the reasons set out above for the clerks and bailiffs, the Tribunal concludes that the deputy bailiffs either were appointed in accordance with section 8 of the P.S.A. or, in any event, must be deemed to have been appointed under the P.S.A. for the purposes of the definition of “public servant” under section 1(g) of the P.S.A.
The Tribunal therefore finds that the deputy clerks and bailiffs are “person[s] appointed under the [P.S.A.] to the service of the Crown by the Lieutenant Governor In Council …. Or by a minister….. and are therefore “public servants” within the meaning of section 1(g) of the P.S.A. and section 1 (1)(m) of C.E.C.B.A.
There were no immediate steps taken by the parties to deal with the grievor’s status after the Picher decision. However, on November 7, 1994, the parties agreed to a Memorandum of Agreement for court employees that stated:
The parties agreed as follows:
Discussion of all outstanding pension issues to be continued by the parties at a date to be agreed upon.
Pay equity adjustments applicable to eligible salaried small claims court employees to be retroactive to January 1, 1990.
Date for calculation of severance entitlements will be the date of hire.
Seniority for the purposes of Article 4 & 24 will be calculated from the date of grievance (October 30, 1984), or date of hire, whichever is later.
All eligible (converted) employees to be placed at the maximum of the salary grid for their classification effective April 1, 1995.
Vacation entitlement will be calculated as follows for all employees converted to classified service:
(a) For salaried small claims court employees:
Accrual of vacation credits to be based on the rate of accrual in effect prior to conversion.
For 1993 & 1994 the difference between the former accrual rate and post conversion rate will be calculated and banked to the employee’s credit for January 1, 1995.
At no time will an employee be paid out in excess of one year’s accrual
Management will facilitate the scheduling of time off, and priority will be given to employees in jeopardy of losing banked credits.
In all cases, banked vacation credits will be utilized within 3 years of the signing of this agreement.
Employees who subsequently left the service will be eligible for a vacation payout to a maximum of one year’s accrual minus any payments made for outstanding vacation credits.
(b) For all other employees converted to classified staff:
- Effective January 1, 1995 vacation accrual entitlements will be calculated from October 30, 1984 or date of hire, whichever is later.
The parties agree to reconvene to discuss issues arising out of the implementation of this agreement.
The parties recognize that all classification grievances resulting from the implementation of the Tribunal decision have been stopped under the provisions of the Social Contract agreements.
In full settlement of retroactive entitlement to statutory holiday and vacation pay, overtime and retroactive salary and benefits, each converted employee to receive a lump sum settlement of $5,500 by separate cheque.
The Employer undertakes to have payments made as soon as possible, but in no case later than 90 days of the signing of this agreement.
The parties agree that no interest is to be calculated of paid on items outlined in this settlement.
Attached to this settlement was a table of Tribunal Conversion Dates for those employees converted to classified status. The dates (and explanation of the dates) set out for Bailiffs were:
Crown Employee Date - June 24, 1988 – This is the date of the award in which the Public Service Ontario Labour Relations Tribunal determined court employees to be Crown employees, (or the date of hire if the employee started after the date).
Public Servant Date – September 17, 1990 – This is the date of the award in which the Public Service Ontario Labour Relations Tribunal determined court employees to be Public Servants. The date is the same for all employees, September 17, 1990 (unless the employee started after this date but before conversion, in which case the date would be the start at work date).
Civil Servant Date – April 1, 1993 – This date applies only to persons converted into Full-Time classified positions.
Seniority Date – October 30, 1984 – For the purposes of Articles 6 (Posting and filling of vacancies) and 20 (Employment Stability) of the collective agreement this date is calculated from October 30, 1984 (the date of the original grievance) or the date the court employee was first employed, whichever is later. If the employee was not converted to Full-Time classified status or was converted into a management position then this date is not applicable.
Legislative Severance Date – date of hire – This is the date that the court employee first became employed (Date of Hire), in Ministry related duties in one of the categories covered by the Tribunal decision. It is used for legislative severance pay purposes.
Enhanced Severance Date – October 30, 1984 – The Memorandum of Agreement for OPSEU employees, dated November 7, 1994, specifies a specific date for the purposes of Article 6 and 20 (previously Art 4 & 24) of the collective agreement, and since Enhanced Severance is linked to Article 20 (surplused employees) this is the date that should be used to calculate Enhanced Severance, or the date court employee was first employed whichever is later.
Vacation Credits – October 30, 1984 – For Salaried Small Claims court employees, accrual of vacation credits is based on the rate of accrual in effect prior to conversion, ie the date of hire or the date the court became a salaried court, whichever is later. For all other court employees converted to classified staff – accrual entitlement is calculated from October 30, 1984 or the date the court employee was first employed, whichever is later.
If the employee was not converted to Full-Time classified status then the date is not applicable.
After the memorandum of agreement the parties issued a joint announcement. That announcement stated:
On November 4, 1994, the Employer and OPSEU reached a tentative settlement on retroactivity for court employees covered by the September 17th, 1990 Public Service Labour Relations Tribunal Decision. The settlement has now been given final approval by both OPSEU and the government. The following is a summary of the settlement:
A) PERSONS AFFECTED BY THE SETTLEMENT
OPSEU members who became classified or unclassified employees as a result of the implementation of the Tribunal’s ruling including those persons who have subsequently left the public service.
Generally speaking, this would cover former freelance court reporters and a few interpreters; fee bailiffs and sheriff officers; and employees of both fee and salaried Small Claims Courts, who were brought into classified and unclassified bargaining unit positions.
B) PERSONS NOT COVERED BY THE SETTLEMENT
Former fee for service individuals who were either not eligible, or who otherwise were not brought into the public service, at the time of the implementation of the Tribunal decision for their particular group.
Persons placed in positions not represented by OPSEU.
C) OUTSTANDING ISSUE NOT COVERED BY THIE SETTLEMENT
OPSEU and Management Board Secretariat have agreed to continue negotiations regarding outstanding pension issues.
Grievances regarding pension entitlements remain active pending the outcome of the pension negotiations.
D) THE TERMS OF THIS SECTION ARE APPLICABLE FOR ALL GROUPS AS DEFINED ABOVE
The date of original hire (as a fee or salaried court worker) will be used for the purposes of calculating severance entitlements when the employee leaves the Public Service.
Seniority for the purposes of Articles 4 and 24 (competitions and job security provisions) will be calculated from the date of the grievance (October 30, 1984), or the date of hire for those persons starting after that date.
Effective April 1, 1995, employees will be placed at the maximum salary level for the classification into which they were converted.
A single payment of $5,500., less statutory deductions, will be made to every employee covered by the settlement in full settlement of retroactive entitlements to statutory holiday and vacation pay, retroactive overtime, salary and all other benefits other than pension.
This payment will be made within 90 days by a separate cheque.
The parties agree that no interest is to be calculated or paid on items outlined in this settlement.
The parties recognize that all classification grievances, resulting from the implementation of the Tribunal decision, have been estopped under the provisions of the Social Contract.
The parties agree to reconvene to discuss issues out of the implementation of this settlement.
E) IN ADDITION, FOR PERSONS COVERTED TO FULL TIME CLASSIFIED POSITIONS:
- As of January 1, 1995, entitlement for vacation accrual will be calculated from October 30, 1984, or the actual date of hire for persons who started after that date.
F) IN ADDITION, FOR STAFF OF THE TEN SALARIED COURTS:
Any pay equity adjustments applicable to salaried Small Claims Court employees who were converted to the Office Administration group will be calculated and paid retroactively to January 1, 1990.
Accrual of future years of vacations credits to be based on the rate of accrual prior to conversion for all employees converted to full time classified positions (in lieu of E above).
On January 1, 1995, additional vacation credits will be banked to the employee’s credit, representing the difference between the vacation credits the employee was earning at the time of conversion, ad the actual credits they were granted during 1993 and 1994.
All excess banked vacation credits above the allowable number that may be carried forward, must be utilized prior to January 1, 1998.
Managers will facilitate the scheduling of these excess vacation credits and priority will be given to employees in jeopardy of losing the additional credits.
Employees who left the public service, after conversion to full time classified positions, will be eligible for a vacation pay out to a maximum of one year’s accrual, minus any payments made for outstanding vacation credits.
At no time will a cash pay out be made for more than one year’s credit of vacation time.
A further joint communication was issued on June 10, 1996. It stated:
I am writing to clarify the interpretation of the agreement reached between OPSEU and MBS on those court employees affected by the PSLRT decision of September 17, 1990.
The Ministry of the Attorney General will be applying the agreement in the following manner:
Provisions 5, 6 and 9 of the agreement – which specify “converted” employees – will be extended to any employees who were employed on a fee-for-service basis prior to receiving a contract or classified position after September 17, 1990.
Those provisions in the agreement which do not specify “converted” employees will be extended to all eligible employees (ie. Employed as either salaried small claims court or fee-for-service between the dates of October 30, 1984 and September 16, 1990).
Provision 8 applies to those classification grievances filed with respect to the conversion of positions.
In February of 1995 the grievor and his supervisor signed a form that set out a variety of dates that applied to Mr. Walker. In that “employment summary” it was stated:
Date of hire (for severance pay purposes) – May 1981
Crown Employee Date - June 24, 1988
Public Servant Date - Sept. 17, 1990
Civil Servant Date - N/A
Seniority Date - N/A
Vacation Entitlement Date - N/A
Placement at the maximum salary grid - April 1, 1995
In 1996 Mr. Walker, amongst others, filed a grievance alleging that he should be converted to classified status and that led to the memorandum of agreement at issue. His actual conversion was effective June 24, 1998. After being converted the Employer calculated the grievor’s CSD under article 18.1 of the collective agreement with November 6, 1989 as a start date. Mr. Walker had approximately 210 weeks of full time unclassified service. These dates led to the Employer’s ultimate determination of June 15, 1994 as the appropriate CSD for the grievor.
The grievor did receive the $5,500 payment provided at paragraph nine of the November 7, 1994 memorandum of settlement. Finally, with respect to the facts necessary to determine this matter, it was undisputed that the grievor never actually received an “appointment” to unclassified status.
Relevant provisions of the collective agreement are:
Article 18 – Seniority (Length of Continuous Service)
18.1 An employee’s length of continuous service will accumulate upon completion of a probationary period of not more than nine (9) months and shall commence:
(a) from the date of appointment to the Classified Service for those with no prior service in the Ontario Public Service; or
(b) from the date established by adding the actual number of full-time weeks worked by a full-time unclassified employee during his or her full-time employment back to the first break in employment which is greater than thirteen (13) weeks; or
(c) …..
UNION SUBMISSIONS
The Union began by reminding the Board that it reconvened to determine a dispute between the parties regarding an implementation issue flowing from the memorandum of agreement that resolved Mr. Walker’s grievance. In accordance with that agreement the grievor was converted to classified status and the Employer calculated a continuous service date. The grievor and the Union take issue with the CSD established by the Employer.
Mr. Richards, for the Union, submitted that the Picher decision of September 17, 1990 made clear that certain employees, including the grievor, who were working on a fee-for-service basis were both public servants and civil servants. They were declared to be members of the bargaining unit. Accordingly, they had status under the collective agreement. Following that decision the parties negotiated an arrangement whereby employees would receive recognition for past service. The grievor received some benefit from that memorandum of agreement, specifically the $5500 dollars referred to in paragraph 9. However, because he was unclassified at the time the memorandum of agreement was executed, he did not receive any recognition of the time he spent working on a fee-for-service basis.
It was the Union’s position that the grievor was an employee since the beginning of his employment as a fee-for-service deputy bailiff and not merely since the issuance of the Picher Tribunal decision in 1990. On this point, the Union provided the Board with a GSB decision Re The Crown in Right of Ontario and OPSEU (Zuibrycki) (September 6, 1978) unreported (Swan). In that case the grievor sought to be declared an employee under the Crown Employees Collective Bargaining Act. It was determined by the Public Service Labour Relations Tribunal that he was an employee. Prior to that decision he filed complaints or grievances which ultimately proceeded to the Grievance Settlement Board. The Employer took issue with the jurisdiction of the Board to hear and determine the grievances because the grievor was not an employee at the time he filed the grievances. The preliminary motion was denied by the Board. Vice Chair Swan said on page 14 that such a decision of the Tribunal is “merely declaratory of a pre-existing status, created by the statute or by the collective agreement”. The Board also said:
Finally, then, we come to the issue of the effective date of the grievor’s membership in the bargaining unit. The Tribunal made its determination that he was an employee on April 18, 1977. We make our determination that he is a person included in the bargaining unit on the date of this award. The Employer’s argument is that the first of these determinations (and probably the second as well) has force only from the date on which it is made. Followed strictly, this approach would give the grievor employee status only from the date of the Tribunal decision and bargaining unit membership only from the date of our award. With respect, this over-estimates the respective jurisdictions of the Tribunal and this Board. The Tribunal cannot create employees out of mere citizens; it can only apply the statutory definition already imposed by the legislature and determine whether an individual fits within that definition. Similarly, we cannot expand the agreed bargaining unit to include any employee; we can only construe the collective agreement to see whether the parties have already done so.
It follows that the grievor’s employee status dates from the implementation of the Act, and his bargaining unit membership from the effective date of the first Working Conditions Collective Agreement, January 28, 1976. Both of these pre-date the grievor’s complaints, and so those complaints are properly grievances under the collective agreement and thus arbitrable before the Grievance Settlement Board. This grievor is thus entitled to have his grievances heard on the merits, and that hearing will take place at a time to be notified by the Registrar.
Simply put, it was the Union’s contention that the grievor was entitled to have all his fee-for-service employment taken into account when the Employer calculated his continuous service date upon his conversion in 1998. In the memorandum of agreement dated November 7, 1994 the parties agreed that classified employees would receive the seniority date of October 30, 1984. The grievor was not classified at that time and accordingly he was not then entitled to have his service taken into account. As of June 10, 1996, the parties extended certain of the negotiated provisions to other employees. However, the time this memorandum was executed the fee-for-service period of the grievor’s employment was not taken into account because he was not entitled to seniority due to his unclassified status.
The Union suggested that the grievor is entitled to the “latent affect” of this benefit. That is to say that while he could not receive the benefits of the Memorandum of Agreement regarding seniority because he was unclassified at the time it was executed, that benefit should have been conferred upon him at the point in time that he was classified in 1998.
The Union asserted that the June 10, 1996 letter of clarification is a clear indication that the parties meant that the provisions of the November 7, 1994 memorandum would be applied prospectively. That is precisely what Mr. Walker is asking be applied in this instance. The grievor must get consideration for the period of his fee-for-service work when calculating his CSD. To do otherwise is to deny him a benefit enjoyed by other employees. The Employer should have gone through the same process in determining CSD for Mr. Walker in 1998 that it went through for the newly classified employees in 1994.
The Union submitted that the Employment Summary signed by the grievor in February of 1995 is of no assistance to this Board and should be afforded no weight. Neither the grievor nor his supervisor were labour relations practitioners and the form is, simply put, wrong. The document cannot be considered to be a waiver of any right to benefits under the collective agreement.
In conclusion, the Union requested that the Board uphold the grievor’s position and order the Employer to re-calculate Mr. Walker’s CSD taking into account his fee for service work. There are other benefits that would flow from such a decision such as vacation entitlement but the parties agreed that the issue of remedy, if any, should be returned to the parties to determine.
EMPLOYER SUBMISSIONS
It was the Employer’s position that I am without jurisdiction to consider this matter on the merits. However, Mr. Baker suggested that, in order to appreciate the admittedly “technical” jurisdictional argument, it would be best to argue the preliminary matter at the conclusion of his submissions regarding the merits of the dispute.
The Employer contended that the dispute between the parties is quite narrow. That is, what is the appropriate CSD for the grievor at the point that he was converted in 1998. In large measure the Union’s argument stems from its allegation that the grievor’s “Public Servant Date” is October 30, 1984 and not September 17, 1990 as set out in Mr. Walker’s Employment Summary.
It is the Employer’s assertion that the only effect of the Picher decision in this matter was to bring the grievor into the bargaining unit. There was nothing in her decision that provided the grievor with any more seniority than he had at the time he was converted in 1998. Indeed, the Tribunal decision makes no comment at all regarding the issue of seniority. The document that establishes the grievor’s Public Servant Date is the agreement between the Union and the Employer dated November 7, 1994. At paragraph 4 of that agreement, the parties considered seniority. To be clear, the parties agreed in that document that those employees about to be converted have a Public Servant Date of October 30, 1984. By all accounts, that date was agreed to arbitrarily because of a lack of individual records. However, none of this applied to the grievor because he was unclassified at the time of this agreement. Therefore it cannot be said that either the Tribunal decision or the November 7, 1994 agreement gave the grievor seniority or the promise of seniority in the future.
The Employer further urged that it is clear from the Tribunal Conversion Dates table attached to the November 7, 1994 agreement that the grievor’s Public Servant Date is September 17, 1990. The Union cannot now persuade this Board that the parties made a mistake. The Employment Summary that Mr. Walker signed in 1995 merely confirms this date.
Mr. Baker suggest that the Zuibrycki case (supra) is of little assistance in this matter. In that instance the parties were disagreeing over effective dates. In the instant matter, the parties agreed on the effective date of September 17, 1990 in their November 7, 1990 memorandum of agreement. It would appear that the Union is trying now to resile from that now seven year old agreement.
The Employer strongly disagreed with the Union’s suggestion that the Letter of Clarification signed by both parties in 1996 clearly establishes the grievor’s right to have his fee-for-service time factored into his CSD at a later time. Indeed, a review of that document shows that certain benefits were conferred upon particular employees. Unfortunately for the grievor, he was still unclassified at the time and so he could not take advantage of seniority for the purposes of CSD. In the alternative, Mr. Baker asserted that even if paragraph 4 of the November 7, 1994 memorandum of agreement applied to the grievor, it only dealt with “seniority for the purposes of Articles 4 and 24”. Article 18, the article that sets out how to establish the length of continuous service, is not referenced and therefore would not apply.
Regarding the jurisdictional objection, it was the Employer’s view that the Union is asking this Board to determine that the time the grievor worked in his fee-for-service position was actually unclassified service; in effect to change the grievor’s status retroactively. The Employer took no issue regarding my jurisdiction to examine whether the Employer has properly applied article 18.1 in determining the grievor’s CSD. However, I can only consider the time the grievor was unclassified and not the period that he worked on a fee-for-service basis.
The Employer reviewed the current legislation to establish that the Grievance Settlement Board does not have the jurisdiction to determine employee status. Such deliberations are properly put before the Ontario Labour Relations Board. However, in order to have employee status examined a person must be an employee under the Public Service Act R. S. O. 1990, c. P-47. Article 8 of the Act states, in part:
(1) An individual is not considered to be a civil servant unless he or she has been expressly appointed as such by the Commission or by the Lieutenant Governor in Council or on the certificate of the Commission.
(2) An individual is not considered to be a public servant unless he or she has been expressly appointed as such by the Lieutenant Governor in Council, the Commission, a minister or a designee of a minister.
(3) An individual who is employed in the service of the Crown is not considered to be a Crown employee unless the individual has been expressly appointed as such by the Lieutenant Governor in Council, the Commission or a minister.
(10)In the absence of an express appointment of an individual as a civil servant, public servant or Crown employee, the individual’s appointment shall not be inferred solely from the circumstances of his or her employment.
It was the Employer’s position that it is clear from the current legislation that the Grievance Settlement Board cannot imply the appointment of employee status upon an individual. Any designation of an individual as a public servant, a civil servant or a crown employee must be done by “express appointment” by the Commission or the Lieutenant Governor-in Council. In this case, there is agreement between the parties that the grievor was not so expressly appointed to work when he acted as a fee-for-service deputy bailiff. Therefore this matter must be dismissed.
In reply to the Employer’s jurisdictional argument the Union asserted that there is no need for this Board to imply or declare the grievor to have been an employee while he worked on a fee-for-service basis as a deputy bailiff because the Picher decision did so years ago. Indeed, the grievor’s status was determined long before the legislation relied upon by the Employer was enacted. The Union is not asking for retroactive adjustments. The Employer is suggesting that the Picher Tribunal decision has no affect. The legislation relied upon by the Employer is prospective only. There was no stated retroactive application. Indeed, the issue of the grievor’s status is, in the Union’s view, res judicata. The legislation did not undo the Picher decision.
The parties were agreed that my jurisdiction derives from the original grievance and the memorandum of settlement that resolved the dispute. That agreement allows the Board to look to article 18.1(b) to determine whether the Employer properly calculated the grievor’s CSD, including, suggested Mr. Richards, the time he spent working on a fee-for-service basis.
The Union submitted in reply that the Conversion Table set out in the Memorandum of Agreement signed November 7, 1994 was for classified employees and the grievor was not classified until 1998. Specifically it was said in the note explaining Seniority Date that “if the employee was not converted to Full-Time status or was converted into a management position then this date is not applicable”. That merely underscores that the October 30, 1984 date does not apply to the grievor at that time. However, it was applicable at the point in 1998 that Mr. Walker was converted. Further, it is immaterial that article 18 is not mentioned in the 1994 Memorandum of Agreement. Where reference was made to articles 4 and 24, article 18 must be seen to be incorporated by reference. The parties did not fail to deal with the issue of length of service they merely found it unnecessary to refer to it specifically in that context.
DECISION
I turn first to the Employer’s preliminary objection regarding my jurisdiction. Mr. Baker opted to make his argument in this regard after his submissions on the merits. I understand the necessity of that approach, because, to some extent the preliminary argument and the merits of this dispute are interwoven. The Employer asserted that I am without jurisdiction to hear and determine this matter because the Union is asking me, in affect, to “appoint” the grievor retroactively to the status of an unclassified employee for the period that he worked as a fee for service bailiff. After consideration I am of the view that the preliminary objection must fail. It is not the Union’s position that the grievor was an unclassified employee at the time that he worked on a fee for service basis. It is the Union’s view that the work Mr. Walker performed during this period should be taken into account for the purposes of establishing his continuous service date. While the Employer argued that this is a distinction without much of a difference, the difference is significant when the Board’s jurisdiction is at issue. I agree with the Union’s submission that the Picher decision established that the grievor and other fee for service deputy clerks and bailiffs were “deemed appointed” as public servants. That history has not been changed with the enactment of the current legislation. The Union is not asking me to appoint the grievor to civil or public servant status. They are merely asking me to apply the affect of the grievor's employment status as it was decided by Chair Picher in 1990.
I do agree with the Employer that if the issue that was before Chair Picher were put before me in the context of the present legislative regimen, I would lack the jurisdiction to make the decision made in 1990. However, as stated previously, that is not what is being asked of me in the instant matter.
After consideration of the merits of the dispute I cannot agree with the Union’s view and requested remedy. The Union has suggested that the grievor, upon his conversion to classified status in 1998, should be allowed to enforce rights that given to particular employees years before. That simply makes no sense in law and it makes no labour relations sense.
Obviously, some settlements have prospective application. However, if agreements are meant to have future application the parties are very clear in the language they chose. There was no such agreement in the memorandum of agreement signed by the parties in November of 1994 or in the joint communication extending the agreement that was issued in June of 1996. Indeed, absent the joint communication that was issued in 1996, the benefits would not have been extended. It must be clear that any further extension of those rights would require another agreement between the parties and there is certainly no such agreement in the instant case.
In 1994 and 1996 the parties decided that certain employees would receive particular benefits. Mr. Walker was covered by those agreements according to the section entitled “Persons affected by the settlement”. Indeed, in accordance with those agreements he received $5500. However, he did not receive the benefit of the seniority provisions because he was unclassified at the time. The grievor cannot now, years later, go back and seek to claim the benefits that he was not entitled to in 1996. The Union described its position as merely asking for the “latent affect” of this benefit. In my view, there is nothing in any of the documents before me that would allow me to find that those seniority benefits should have been conferred upon the grievor at the time that he was classified in 1998.
Mr. Walker’s grievance was resolved by the parties in November of 1998. After his conversion the Employer calculated his continuous service date based on the terms of article 18 of the collective agreement. In my view, that calculation was done correctly. Therefore, the Union’s request for Mr. Walker is denied.
I now turn to the grievance of Ms. Malpage. The memorandum of settlement entered into for Ms. Malpage’s grievance was dated October 7, 1998 and stated the following:
Minutes of Settlement and Release
Between
OPSEU
And
Rosanne Malpage
And
The Crown in Right of Ontario
(as represented by the Ministry of the Attorney General)
Whereas OPSEU and the Employee has filed a conversion grievance, OPSEU No. 96D592
And Whereas the parties have agreed to resolve all the matters arising directly or indirectly out of the grievance on a without prejudice or precedent basis as follows:
- The Employer will:
a) convert Rosanne Malpage to a classified Relief Judicial Secretary/Documents Clerk OAG 6 level effective April 1, 1996;
b) Calculate the employee’s seniority in accordance with Article 18.1 of the collective agreement;
c) Credit the employee with vacation days from the date of appointment to the classified service. Such credits will be based on the difference between the 2 weeks per year the employee has already received (as an unclassified employee) and the amount that would have been due if the employee were in the classified service from the date of appointment stated above. The employer reserves its management rights to approve any vacation requests related to any such credits.
d) Allow the employee to purchase pensionable service in accordance with the OPSEU pension plan. The Employer agrees to contribute its share of pension premiums effective April 1, 1996.
OPSEU and the Employee will withdraw all outstanding grievances riled in relation to her conversion to the classified service. All outstanding grievances will be considered fully settled and OPSEU and the Employee will not commence any further action in relation to them. If the employee does not agree with his classification he maintains his rights pursuant to article 22.12.1.
OPSEU agrees that any conversion of employees to the classified service at the London Court House from April 1, 1996 to the date of execution of this agreement are without prejudice and shall not be used as a precedent in any current or future grievances.
OPSEU agrees that union policy grievances U309 and 95U033 have been fully settled, and that there are no further claims arising from them.
OPSEU and the Employee hereby release and forever discharge the Employer, its employees, agents and officers of and from all actions, causes of action, claims and demands of ever nature and kind arising directly or indirectly out of the allegations contained in the above noted grievance, including but not limited to any claims under the Employment Standards Act, Public Service Act and Human Rights Act.
The parties agree that these Minutes of Settlement and Release constitute the entire agreement between them and supersede any and all written agreements, arrangements or understandings between the parties in connection with or incidental to the above noted grievances.
The Employee acknowledges that she fully understands the terms and conditions of these Minutes of Settlement and Release, and that she voluntarily accepts the said terms and conditions after an opportunity to seek and obtain independent advice on any and all matters requiring clarification.
The Parties agree that Vice-Chair Briggs shall remain seized of this matter should any problems arise, directly or indirectly, as a result of implementing this agreement.
Ms. Malpage began with the Employer on April 24, 1991. She was converted on April 6, 1996. Subsequent to this memorandum the Employer determined Ms. Malpage’s Continuous Service Date to be September 2, 1991. It was the Union’s position that April 24, 1991 is the correct date.
During our hearing into this matter, Mr. Richards asserted, as a fact that there had been another group of employees who had been converted to classified status prior to Ms. Malpage. He referred to this group as “Haggerty et al”. Mr. Richards stated that when those employees were converted from unclassified service to the civil service their CSD dated back to the first date of their first contract with the Employer. Ms. Funnell, for the Employer, did not deny that assertion. However, it was stated that those calculations were made in error and would be corrected.
It was the Union’s position that Ms. Malpage should be treated in a fashion consistent with the “Haggerty et al” employees. To do otherwise is to disadvantage the grievor. It was the Employer’s view that a clerical error was made that affected the Haggerty group and that error should not be perpetuated by this Board.
The Union’s second argument regarding Ms. Malpage’s incorrect CSD was that the Employer did not take into account the affect of the strike in 1996. Article 18.1(b) contemplates “weeks worked” for seniority calculation. The grievor’s time sheets indicate that no hours were worked during the period of the strike. It was conceded that it might be argued that picket duty should not be counted for these purposes. However, article 18.1(b) must be read in conjunction with the “Return to Work Protocol”. In that document, dated March 26, 1996, it was stated at paragraph 3.3:
Seniority will accrue for all employees in the bargaining unit during the period of the strike.
It was conceded by Mr. Richards that at the time that the Return to Work Protocol was executed the grievor was not a civil servant. She was converted almost two years subsequent to March 26, 1996. However, at the point that she was converted, the Employer should have taken all hours, including those that fell during the strike, into account when calculating the grievor’s seniority in accordance with article 18.1. To do otherwise would be to discriminate against unclassified employees. The intent of the Return to Work Protocol was to ensure that all employees were not penalized for withdrawing their services for that period of time. Therefore, “weeks worked” in article 18.1 of the collective agreement must be read in conjunction with article 3.3 of the Return to Work Protocol. Simply put, it was the Union’s position that the grievor was entitled to a “latent application” of the Return to Work Protocol at the time she was converted.
While the Employer agreed that the Return to Work Protocol stated that seniority would accrue for “all employees”, it was submitted that seniority only applies to classified employees. The grievor was unclassified at that time and therefore could not have received the benefit of paragraph 3.3.
DECISION
My jurisdiction to determine whether the Employer’s calculation of Ms. Malpage’s CSD is correct flows from the Memorandum of Settlement signed by the parties on October 7, 1998. In that agreement, the parties stated that the Employer would “calculate the employee’s seniority in accordance with Article 18.1 of the collective agreement”.
Having regard to my jurisdiction, both assertions made by the Union on behalf of Ms. Malpage must fail. I have set out my reasons for denying a request for “latent application” of benefits earlier in my decision regarding Mr. Walker’s grievance. The same holds true in these circumstances.
Article 18.1 of the collective agreement states in clear terms how seniority is to be calculated. I am restricted to an interpretation of article 18.1 in determining whether the Memorandum of Agreement has been correctly implemented. How other employees in other circumstances were treated regarding their conversion is not an appropriate consideration for this Board given the terms and provisions of the Memorandum of Agreement. While I can certainly appreciate that this might cause frustration for the grievor, I find that the Employer has properly implemented the terms of the Memorandum of Agreement regarding the calculation of Ms. Malpage’s CSD.
Dated at Toronto this 12th day of March, 2002.