GSB# 2003-0539

UNION# 2003-0701-0003

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Barnes)

Union

• and -

The Crown in Right of Ontario (Ministry of Municipal Affairs and Housing)

Employer

BEFORE

Randi H. Abramsky

Vice-Chair

FOR THE UNION

Robin Gordon Grievance Officer Ontario Public Service Employees Union

FOR THE EMPLOYER

Lucy McSweeney Senior Counsel Management Board Secretariat

HEARING

January 28, 2005.

Award

On May 20, 2003, the grievor, Alice Barnes, filed a grievance, alleging that her continuous service date (CSD) is inaccurate. Specifically, she alleges that the period from January 28, 1976 to November 5, 1979, when she worked for a temporary agency prior to her appointment as an unclassified employee, should be added to her service date. It is the Ministry’s position that her CSD is correct.

There are no factual or legal issues between the parties. At the hearing, the parties agreed to the following facts:

1. February 2nd, 1976: The grievor first began working in the Thunder Bay Rent Control Office (Ministry of Consumer and Commercial Relations). She was serving s a Telephone Enquiry Clerk. (Documents show that her interview in the workplace took place January 28, 1976, but first day of work was February 2).

2. The Ministry contracted for the grievor’s services through a temporary agenc call Office Overload. Office Overload paid the grievor’s wages and any benefits, collected and remitted statutory deductions on her behalf, and issued her with a T4 slip at the end of each calendar year. Office Overload in turn invoiced the Ministry for the hours worked by the grievor and for its administrative fees under the terms of its contract with the Ministry. All directions to the grievor, and supervision of her work, and all approvals for time off, etc. came from the Ministry.

3. November 5th, 1979: First day of the grievor’s unclassified contract with the newly established Residential Tenancy Commission. (See letter dated October 24, 1979, to Alice Barnes from R. J. LeClerc, Personnel Coordinator, Residential Tenancy Commission). Until this time she had been working in the office as an employee of Overload. None of the grievor’s duties changed upon her appointment to the public service. She remained in the same office, performing the same duties as she had when supplying her services to the Ministry under her contractual arrangement with Office Overload.

4. June 23, 1980: The grievor was appointed to permanent full-time staff with Residential Tenancy Commission. Her positions was that of Clerk 3 General. (See letter dated June 19, 1980 to the grievor from Cynthia Webster, Manager, Personnnel & Training, Residential Tenancy Commission).

Note: since that time, the Thunder Bay office has become a Northern Regional Client Service Office with the Ontario Rental Housing Tribunal (OHRT). The OHRT is a Schedule 1 agency and is aligned for administration purposes with the Ministry of Municipal Affairs and Housing. The grievor is currently employed by OHRT as a Customer Service Representative (OAG 10). The position has reported to Tony Durbacz (Northern District Manager, OHRT Sudbury Office) since 1998.

5. September 6, 2001: Tony Durbacz wrote a letter to Robert Breens of the OPSEU Pension Trust at the grievor’s request, to confirm that he had known her since late 1976. The grievor’s representations to the OPT, in support of her bid to have the itme when she was working for the Ministry through Office Overload considered pensionable service, were ultimately unsuccessful.

6. 2001 and 2002: The grievor met with her manager, Tony Durbacz, on several occasions to discuss the issue of her continuous service date. The grievor wished to have her time with Office Overload counted towards her CSD, moving it back in time to January 28th, 1976.

7. January 16th, 2002: The grievor informed Tony Durbacz that she wanted to pursue the matter through human resources (called the Organizational Effectiveness Branch.)

8. March 3rd, 2003: The grievor met with her manager and lodged her Stage 1 complaint.

9. March 7th, 2003: The Manager denied her grievance. The grievor announced her intent to file at Stage 2. The office OPSEU grievance form was filed with the Ministry on March 20th, 2003.

10. May 6th, 2003: The Stage 2 meeting was held. Management’s designee, Brian Opitz (Manager-Corporate Services, OHRT) denied the grievance. In his letter of May 21, 2003 confirming the outcome of the Stage 2 meeting, Brian Opitz stated that “the ministry reserves the right to rely upon any objections to the arbitrability of this grievance.”

The relevant provision in the collective agreement has remained consistent over the years. It provides, in relevant part, as follows:

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 (13) weeks; …

“Unbroken service” is that which is not interrupted by separation from the public service; “full-time” is continuous employment as set out in the hours of work schedules for the appropriate classifications; …

The term terms “civil servant”, “classified service” and “public servant”, as defined in the Ontario Public Service Act, R.S.O. 1990, C. P.47, all require an “appointment” to the service of the Crown.

Without waiving any objections it has to the timeliness of the grievance, the Employer moved to dismiss the grievance on the merits in light of the jurisprudence of the GSB. The Employer contends that under the jurisprudence of the Board, a period of service under a third-party contract through an outside employment agency is not time which may be included in the calculation of continuous service under Article 18.1 of the collective agreement. OPSEU (Konya) and Ministry of Natural Resources (1985), GSB No. 494/83 (Roberts); OPSEU (Hood) and Ministry of Natural Resources (1997), GSB No. 113/95 (Gray); OPSEU (Lee) and Management Board Secretariat ((1999), GSB No. 1225/97 (Abramsky).

The Union, reluctantly, concurs with the Employer, and agrees that, under the Board’s jurisprudence, the time that the grievor worked for the Ministry, through Office Overload, may not be included in her CSD calculation. Because the parties’ to the collective agreement, the Employer and the Union, do not have a “difference” regarding the interpretation or application of the collective agreement in this matter, the grievance must be dismissed on this basis alone. OPSEU (Cochran) and Ministry of Natural Resources (1997), GSB No. 833/96 (Abramsky).

I further conclude, on the merits, that the grievance must be dismissed. The facts in Konya, supra, are strikingly similar to the facts in this case. There, the grievor worked for the Ministry through a third-party provider of technical services, Modern Technical Services Limited (MTS), for a period of almost four years prior to becoming a classified employee. Under this arrangement, the grievor was paid by MTS, which invoiced the Ministry for the hours worked by the grievor. When he became a classified employee, none of his duties changed. He remained in the same office performing exactly the same duties as he had when he worked for MTS. The Board concluded, at p. 9, that “the period…when the grievor was under a third-party contract with MTS, did not constitute ‘service in the public service’ within the meaning of…the collective agreement.” Accordingly, the Board determined that the employer had properly calculated his CSD and the grievance was dismissed. Clearly, Konya is directly applicable and dispositive of this grievance.

The Union, it should be noted, has been compelled by the jurisprudence to acknowledge that the grievor’s claim must be dismissed. But counsel for the Union clearly pointed out the frustration that arises when an employee cannot include years of service for the Ministry because those services were provided through a third-party contract, rather than directly through an appointment to the public service. The Board, in Kyona, supra, acknowledged sympathy for the grievor in this kind of situation. It stated at p. 9:

Despite having reached this conclusion, the Board must express a degree of sympathy for the plight of the grievor. … Nevertheless, the Board is constrained to interpret the Collective Agreement in accordance with the applicable jurisprudence, and this has led to the conclusion that when the parties used the term ‘public service’ in this provision, they did not contemplate covering persons in the position of the grievor.

Likewise, the Union and the Board, in this case, are equally constrained to interpret the collective agreement in accordance with the applicable jurisprudence. Accordingly, although I can sympathize with the grievor’s frustration, this grievance must be dismissed.

Issued at Toronto this 1st day of February, 2005.