GSB# 0516/00

UNION# 00B234

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Morgan)

Grievor

• and -

The Crown in Right of Ontario (Ministry of the Attorney General)

Employer

BEFORE

Loretta Mikus

Vice-Chair

FOR THE UNION

Mary MacKinnon Bode & MacKinnon Barristers and Solicitors

FOR THE EMPLOYER

Meredith Brown Counsel Management Board Secretariat

HEARING

November 28, 2002.

DECISION

On April 11, 2001, the parties reached an agreement in the grievance of Debbie Morgan, a Counter Clerk at the Superior Court in Thunder Bay, Ontario. The grievor had taken issue with the unilateral reclassification of her status as a full-time classified employee to a regular part-time employee (RPT) and at mediation the parties were able to enter into Minutes of Settlement respecting all outstanding issues raised in that grievance. The relevant provisions of the Memorandum of Settlement read as follows:

1. Effective April 15, 2001, the grievor’s employment status will be restored to full-time classified service;

2. The grievor’s modified hours of work will be maintained as directed by her physician from time to time;

3. The grievor will be permitted to continue to apply her STS credits towards those hours that she is unable to work, up to 6 hours per day. When her STS credits have been exhausted the hours the grievor is unable to work will be treated as unpaid leave by the employer.

4. The Employer will, effective April 15, 2001, restore and maintain pension contributions for the grievor at full time rates.

5. The employer will, effective April 15, 2001, reinstate and maintain the following benefits on the basis of full-time employment status:

(a) basic life

(b) supplementary health and hospital & vision (Article 39)

(c) dental (Article 40)

(d) LTIP (Article 42)

6. Although the grievor’s unpaid hours will be treated as leave without pay, Article 36.2 will not apply. The grievor will not be required to pay premiums for those hours.

6.1 The grievor will continue to accrue short-term sickness credits based on her former RPT status (6 hours a day).

7. Notwithstanding #1 above, the grievor’s vacation and vacation credits will continue to accrue based upon hours presently worked (4 ½ hours per day x 4 days per week, or such additional or decreased hours the grievor works as the physician authorizes.

The Minutes of Settlement also stated that I would remain seized in the event the parties encountered difficulty in implementing this settlement. I have been asked to reconvene the Board because of implementation problems regarding paragraphs 6 & 7 of the Minutes of Settlement.

Ms. MacKinnon, counsel for the Union, took the position that the Employer has improperly pro-rated the grievor’s vacation and sick leave credits by applying the part-time provisions of the collective agreement to her, a full-time employee. By the Union’s calculations, the grievor should receive vacation credits as a full-time employee but pro-rated to reflect 6 hours a day instead of 7.5. The employer has applied Article 71 of the part-time provisions of the collective agreement so that the grievor’s STS credits are based on the ratio of her hours worked to a full-time employee’s hours.

Similarly, the Union takes issue with the employer’s calculation of her vacation pay and credits. The grievor’s is entitled, as a full-time employee, to 25 days of vacation (5 weeks). Her pay therefore, asserted the Union, should be 25 days at 4 ½ hours per day or 15 days of pay. Her entitlement then should be 25 vacation days but only 15 days of pay. The Employer, on the other hand, has applied Article 72 to pro-rate the grievor’s vacation entitlement as if she were a part-time employee.

The Union referred to several Employment Standards Act cases that stand for the proposition that service and seniority are distinct concepts and should be considered separately in deciding what credits ought to apply. It also referred to decision of Arbitrator Grey (Thermal Ceramics & USWA (1992), 1992 CanLII 14528 (ON LA), 30 L.A.C. (4th) 314) in which he stated that collective agreement provisions must be interpreted in a manner consistent with the Ontario Human Rights Commission provisions on discrimination on the basis of disability.

Ms. Brown, counsel for the Ministry, asserted that a plain reading of the Minutes of Settlement does not support the Union’s position. Those terms of the settlement are clear and unambiguous on their face and the Employer has implemented them in accordance with Collective Agreement, the Minutes of Settlement and the Ontario Human Rights Code.

Paragraph one sets out the purpose of the settlement, namely that to restore the grievor’s full-time status. Paragraphs 3, 4 and 5 set out what that status entitles her to as a full-time employee. Paragraphs 6.1 and 7 are exceptions to the normal full-time entitlements. Each paragraph outlines an exception to the customary full-time accrual of benefits.

DECISION

The jurisdiction in interpreting documents is abundant and consistent. The purpose is to attempt to determine the parties’ intention by giving the words their usual and common meaning unless the parties indicate otherwise. With those considerations in mind and, having reviewed the Minutes of Settlement, I am of the view the Employer’s interpretation is to be preferred.

Paragraph one of the Minutes of Settlement sets out the parties’ intention in clear and unambiguous terms. The grievor is to be returned to her former status of a full-time classified employee. Paragraphs two through five define what flows from that status, namely modified hours of work, utilization of STS credits, pension contributions and health and welfare benefits.

Paragraph 6 is equally clear in its intention. The grievor is exempted from the full-time provisions that would have required her to pay for some or part of her benefits under the provisions of the collective agreement.

Paragraph 6.1 states that the grievor will continue to accrue STS credits based on her former RPT status. These words are not ambiguous. The grievor’s STS credits are to accrue on the basis of her RPT status and not as a full-time employee. It is noteworthy that the original Minutes read “current status” instead of “former RPT status”. The former was crossed out and the latter added. It is also interesting to note that in the original version of the Minutes, paragraph 5 had included a provision for STS entitlement, which was crossed out and replaced with paragraph 6.1. That indicates that the parties put their mind to the issues of STS accrual and specifically excluded it from the list of full-time benefits and expressly limited to her status as a RPT employee.

Paragraph 7 begins with the phrase “notwithstanding # 1 above”. It was agreed by the parties that “# 1 above” referred to paragraph one, which restored the grievor’s full-time status. Paragraph 7 then sets out the method of vacation accrual. If I were to interpret this paragraph in the manner urged by the Union, I would, in essence, be reading out the words “notwithstanding # 1 above”. That would be inconsistent with the canons of interpretation that dictate that an arbitrator should assume that all the words used by the parties were intended to have meaning unless that would lead to an absurd result.

In this case, that phrase must be read to mean that, notwithstanding the grievor’s full-time status, she will receive vacation and vacation credits (i.e. vacation time and vacation money) based upon the “hours presently worked”. For further clarity, the parties have expressed those hours to be 4½ per day x four days per week.

Having considered the provisions of the Minutes of Settlement separately and as a whole, the employer’s interpretation of the Minutes of Settlement is in keeping with the intentions of the parties and the express words of the document.

The grievance is therefore dismissed.

Date at Toronto this 5th day of December, 2002.