GSB#2011-2144

UNION#2010-0290-0023

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Harris et al)

Union

• and -

The Crown in Right of Ontario (Ministry of Children and Youth Services)

Employer

BEFORE

Felicity D. Briggs

Vice-Chair

FOR THE UNION

Tim Mulhall Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Karen Martin Ministry of Government Services Centre for Employee Relations Employee Relations Advisor

HEARING

October 15, 2012.

Decision

1On November 8, 2011, the parties negotiated a Memorandum of Settlement that included the following provisions:

Whereas the parties wish to resolve the matters raised in OPSEU Grievance 2010-0290-0023 Harris et al

Now therefore the parties agree to the full and final settlement of the above-noted grievance without precedent and without prejudice to any future and/or similar matter(s), on the following terms:

1. The parties agree that the YSO officers listed in Appendix A of this Agreement will be considered Regular employees effective August 16, 2010.

2. These employees listed in Appendix A will be credited with 40 hour work weeks for the purposes of Pay and Seniority back to the effective date of August 16, 2010.

3. In terms of all other benefits, vacation entitlements, Statutory Holiday pay the grievors will have a choice to be provided with these entitlements and pay back to the employer all in lieu payments received since the appointment to Regular service (August 16, 2010) or sign the attached Appendix C waiving these entitlements and any other retroactive Collective Agreement entitlements except those listed in Paragraph 2 up until their start date of November 28, 2011.

2It was also agreed that I would remain seized of any implementation matters that arose after the signing of the Agreement. In June of 2012 the parties posed two questions to this Board regarding the interpretation of the Memorandum of Agreement.

3In a decision dated June 26, 2012, I answered the two questions raised by the parties. Following the issuance of that decision, the Employer raised an additional matter regarding when the grievors became entitled to Short Term Sickness Plan.

4The parties were agreed that since the signing of the Memorandum of Agreement in November of 2011, the Employer has paid sick leave to all of the grievors. However, subsequent to the issuance of the June 26, 2012 decision, the Employer now queries whether it was correct in doing so. Specifically, the Employer is presently of the view that the grievors had to have served the twenty consecutive working day qualifying period after the signing of the Memorandum of Agreement in November of 2011.

5The Union urges that the Employer was correct in its first interpretation and that it is now wrong to suggest otherwise. It was the Union’s view that in accordance with the Memorandum of Agreement the grievors became Regular Employees effective August 16, 2010 and the two consecutive working day qualifying period for the purposes of Short Term Sick Plan would have commenced on that day.

6The parties made submissions substantiating their respective positions and those have been considered.

7I am of the view that the Union is correct in its interpretation of the Memorandum of Agreement. The first paragraph of the Agreement makes clear that the grievors are Regular employees as of August 16, 2010 and there is nothing in the Memorandum of Agreement that restricts or otherwise alters their rights to the Short Term Sickness Plan in accordance with Article 44.2 of the Collective Agreement.

8Accordingly, the twenty consecutive working day qualifying period considered in Article 44.2 of the Collective Agreement began for the grievors immediately upon their becoming Regular employees, that is, April 16, 2010.