GSB#2002-2239

UNION# 2002-0634-0002

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union

(Barker)

Grievor

• and -

The Crown in Right of Ontario

(Ministry of Transportation)

Employer

BEFORE

Nimal Dissanayake

Vice-Chair

FOR THE UNION

Ed Holmes

Ryder Wright Blair & Doyle

Barristers and Solicitors

FOR THE EMPLOYER

Andrew Baker

Counsel

Management Board Secretariat

HEARING

November 25, 2003.

PRELIMINARY AWARD

Following a job competition, the grievor Mr. Dale Barker was appointed to a position of Real Estate Officer 2 effective November 14, 2001. The employer, by letter dated September 27, 2002, informed the grievor that pursuant to S. 22 of the Public Service Act, he was released from his position effective the same date. In the grievance dated October 2, 2002 which is before me, the grievor has grieved that he was dismissed without just cause in contravention of article 18.1 of the collective agreement. The issue is whether or not the employer was entitled to resort to a probationary release of the grievor at the particular time.

Article 18 of the collective agreement reads:

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 employees 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 130 weeks, or

(c) for a regular part-time civil servant, from January 1, 1984 or from the date on which he or she commenced a period of unbroken, part-time employment in the public service, immediately prior to appointment to a regular part-time position in the civil service, whichever is later; or

(d) effective January 1, 1984, from the date established by adding the actual number of full-time weeks worked by a full-time seasonal employee during his or her full-time employment back to the first break in employment which is greater than thirteen (13) weeks.

The employer did not dispute the union’s contention that since the grievor had no prior service in the OPS, under article 18.1(a) his probation period would have been a fixed period of 9 calendar months from November 14, 2001 – his date of appointment to the classified position of Real Estate Officer 2. Therefore, in the normal course, his probation would have ended no later than August 14, 2002. Thus on the face of these facts, the employer would not normally have been entitled to resort to a probationary release of the grievor after August 14, 2002.

However, the employer submitted that the foregoing normal scenario resulting from an application of the collective agreement provisions was altered as a result of the “Return to Work Protocol” (Protocol) entered into between the employer and the union on May 2, 2002 following a strike in the OPS. The relevant portion of that protocol is as follows:

RETURN TO WORK PROTOCOL

The parties agree that any issue arising out of the enforcement of this Protocol may be resolved under the grievance and arbitration provisions of the Collective Agreement.

The following applies to employees in the OPSEU bargaining units including seasonal employees on hiatus and for greater certainty also includes essential and emergency workers.

“Time” During the Strike

1.0 CONTIUOUS SERVICE

1.1 Time spent on strike shall not interrupt continuous service of an employee for the purpose of:

(i) Coverage for Basic Life, Supplementary and Dependent Life, Long Term Income Protection and Supplementary Health and Hospital benefits (Article 32/36/37/38/39/ 42/64/65/66/70)

(ii) Coverage for dental benefits (Articles 32/40/68)

(iii) Percent in lieu of benefits (Article 31)

(iv) Qualifying period for pregnancy leave (Articles 31/32/50/76)

(v) Qualifying period for parental leave (Articles 31/32/51/77)

(vi) Calculation of termination payments (Articles 53/78)

(vii) Calculation of probation periods and appointment to classified service (Articles 18/31/32) for essential and emergency services workers

(viii) Calculation of entitlement on death benefits (Article 52)

The union relied on Re Hiram Walker & Sons Ltd. (1975) 1975 CanLII 2110 (BC LA), 9 L.A.C. (2d) 357 (Weiler) and more particularly Re Sparks 2408/95 (Mikus). In the former case it was held that where the collective agreement stated that “New employees shall be considered to be on probation until they have been employed for sixty (60) calendar days …” the period of time when employees were absent from work due to a strike counted towards the calculation of the 60 day probation period. In Re Sparks, the Board was called upon to apply the very same article 18.1 which is before me. There the employer had purported to extend the grievor’s probation period by 3 months because the grievor had been absent from work due to sickness for a period of 3 months during his original probation period. The Board held that the employer was not entitled to do that. In effect the Board concluded that the period of absence counted towards the grievor’s probation period.

The employer in the present case did not challenge the proposition the union extracted from that case law to the effect that absences from work do not disrupt the running of the probation period for an employee who had been appointed to a classified position in the OPS. However, the employer pointed out that none of the cases relied upon by the union involved an agreement between the union and employer to specifically alter the rights under the collective agreement. In the employer’s view the Return to Work protocol was such an agreement.

Employer counsel pointed out that the preamble to the protocol makes it applicable “to employees in the OPSEU bargaining units”. Thus it captures the whole bargaining unit including classified employees. S. 1.1 of the protocol provides that time spent on strike shall not interrupt continuous service of an employee for certain specific purposes described in sub-sections (i) to (viii). He submitted that the effect of sub-section (vii) was to limit the non-interruption of continuous service to “essential and emergency services workers”. It therefore follows that for all employees who are not essential or emergency workers, time spent on strike does interrupt continuous service. In this regard counsel pointed out that ss. (vii) explicitly sets out article 18 as one of the articles affected by its terms.

Employer counsel conceded that, but for the protocol, the collective agreement would dictate, as interpreted in Re Sparks, that the period of the strike would count towards the grievor’s probation period. However, he took the position that in the protocol the union “negotiated away” that advantage for all employees except essential and emergency workers. Counsel submitted that when the parties specifically provided that a certain class of employees, i.e. essential and emergency workers, will receive protection of continuous service during the strike, they must have intended that all other employees would not enjoy that protection. Counsel for the union submitted that there is nothing in the protocol which explicitly or implicitly takes away the provision in article 18.1(a) that those appointed to the classified service have a fixed probation period of not more than 9 calendar months.

Having carefully considered the submissions of the parties, I conclude that the protocol does not have the effect of amending or suspending the protection granted to classified employees by article 18.1(a).

There is no real dispute that article 18.1(a), as interpreted by the Board in Re Sparks, means that a person appointed to the classified service, such as the grievor, has a fixed period of probation. That probation period continues to run without interruption during the employee’s absences from work, including absences during a strike. That is a negotiated right accorded to classified appointees, which is not accorded to appointees to the unclassified service or to seasonal employees. Unclassified employees and seasonal employees can only count actual full time “weeks worked” (Art. 18.1(b) and Art. 18.1(d) respectively). Therefore, the onus is on the employer to establish on a balance of probabilities that the union had agreed to give up (or as counsel put it “negotiated away”) a right or benefit in the collective agreement. That onus has not been met.

It is clear that the protocol contains various provisions that apply to different classes of employees, including classified employees. Some of its terms are made applicable to all employees, while other terms are restricted to specific classes. In that sense, the protocol covers all employees in the bargaining unit. That is not helpful in determining how, if at all, a particular provision such as s.1.1(vii) affects a certain class of employee.

The provision in question here reads: “Time spent on strike shall not interrupt continuous service of an employee for the purposes of: calculation of probation periods and appointment to classified service (articles 18/31/32) for essential and emergency services workers”. Does this provision constitute an agreement to take away the rights under article 18.1(a) afforded to classified employees. In my view, the answer clearly must be in the negative. It is to be noted that as a whole, the thrust of S. 1.1 of the protocol is to confer certain benefits on employees, benefits those employees may otherwise not have. If ss.(vii) has the intent and effect of taking away from employees a benefit which they would otherwise have, that goes against that general thrust. There is no doubt that in ss. (vii) the parties turn their minds to probation periods. However, the language indicates that the intent, consistent with the general intent of S. 1.1, is to provide some relief or benefit with regard to probation periods to employees, who otherwise may be detrimentally affected with regard to their probation periods as a result of their absence from work during the strike.

In support of his position counsel for the employer relied on the fact that ss.(vii) specifically refers to article 18. However, that reference does not buttress the employer’s position. Subsection (vii) refers to articles 18, 31 and 32. It is to be noted that article 31 deals with unclassified employees and article 32 with seasonal employees. As noted earlier unclassified employees (article 18.1(b)) and seasonal employees (article 18.1(d)) can only count time actually worked towards their probation periods. In other words, but for the protocol, their probation periods would have been interrupted for the duration of the period of the strike. Subsection (vii) relieves these employees from that result.

The reference in ss.(vii) to article 18 has the same purpose. Article 18 has the effect that unclassified employees (art. 18.1(b)) and seasonal employees (art. 18.1(d)) may only count full time weeks actually worked towards. The effect of ss.(vii) is to extend to those employees who otherwise do not enjoy that benefit, uninterrupted continuous service during the strike period. It does not take away any existing rights.

Where a provision may reasonably interpreted to the effect that it does not take away existing collective agreement rights, that interpretation ought to be adopted. The initial presumption should be that negotiated employee rights are not given up or forfeited. This presumption should only be deemed rebutted where the language clearly dictates such result. If the parties intended to take away the rights accorded to classified employees under article 18.1(a), they should, and would, have done so explicitly. Here the language used in S. 1.1 only indicates an intention to extend rights to employees, who may otherwise not enjoy such rights. The language does not suggest explicitly or implicitly an intention to reduce or take away existing collective agreement rights.

For the foregoing reason it is my finding that at the time of his purported release, i.e. September 27, 2002, the grievor was no longer on probation. His period of absence due to the strike did not interrupt the running of his probation period. It had ended upon completion of 9 calendar months from the date of his appointment to the classified service.

Dated this 1^st day of December 2003 at Toronto, Ontario.