OPSEU (Patterson et al) v. The Crown in Right of Ontario (Ministry of Health and Long-Term Care), 2015 CanLII 8596

GSB#2013-2464, 2013-2735, 2014-2250

UNION#2013-0147-0038, 2013-0201-0007, 2014-0201-0003

Under

Before

BETWEEN

OPSEU (Patterson et al)

Grievor

and -

The Crown in Right of Ontario (Ministry of Health and Long-Term Care)

Employer

BEFORE

M. V. Watters

Vice-Chair

Mihad Fahmy Peggy Smith Barristers and Solicitors Counsel

Omar Shahab Treasury Board Secretariat Legal Services Branch Counsel

December 8, 2014

1This proceeding was conducted pursuant to the expedited procedure set out in article 22.16 of the collective agreement.

2At the hearing, the parties differed as to the nature of the decision to be given and as to whether it should have precedential value. The Union asked that I provide something more than a "succinct decision". More specifically, Union counsel requested that I give a "more fulsome decision with reasons". She further submitted that the decision should have precedential value and be applicable to other pending grievances on the same issue. Concern was expressed about the potential need to relitigate the issue, with the possibility of an inconsistent or conflicting result. In contrast, counsel for the Employer asked for "a bottom line decision". He advised that the Employer did not agree the decision should have any precedential value.

3These individual grievances do not fall within the exceptions expressly noted in articles 22.16.1 and 22.16.6. Additionally, the parties failed to reach agreement under article 22.16.7. This Decision, accordingly, shall have no precedential value. I do opt, however, to provide more than a bottom line decision in view of the complexity and significance of the issues raised. I note, for the record, the parties agreement to extend the time for the issuance of this Decision.

4The parties filed the following Agreed Statement of Facts:

"1. The 9 Grievors are Ambulance Communication Officer 1s.

The Grievors all started as irregularly scheduled fixed term employees before becoming regular, full-time employees.
The Grievors names, fixed-term start dates, and regular, full-time hire dates, and CSD dates are as follows:

1 Joanne Taylor Start-July 10, 2003 Hire-April 2, 2012 CSD- April 11, 2011

2 Ryan Smith Start-April 4, 2005 Hire-April 2, 2012 CSD-May 26, 2008

3 Marcy Patterson Start-August 29, 2005 Hire-April 2, 2012 CSD-August 2, 2010

4 Jodi Morley Start-April 18, 2006 Hire-April 2, 2012 CSD-April 6, 2009

5 Virginia Davis Start-Sept.24, 2007 Hire-April 2, 2012 CSD-February 22, 2010

6 Bobbie Jo Dochstader Start-Sept.24, 2007 Hire-April 2, 2012 CSD-August 2, 2010

7 Kellie Lawson Start-December 19, 2005 Hire-April 2, 2012 CSD-January 5, 2009

8 Cameron Hyndman Start-January 17, 2005 Hire-Sept. 2010 CSD-June 5, 2006

9 Melissa Wheeler Start-October 25, 2004 Hire-Sept. 2010 CSD-May 22, 2006

Cameron Hyndman and Melissa Wheeler work in Hamilton, all the other Grievors work in London.
All of the Grievors operated under Compressed Work Week agreements at all material times. The agreements are attached as Exhibit A.
The majority of scheduled shifts worked by the Grievors as fixed-term employees were 12 hours (07-19, 08-20, 19-07), with some 8 hour shifts (11-19, 07-15, 09-17, 15-23, 20-04, 19-03). Call-in shifts (as distinct from scheduled shift) would be 2 hours or longer. In London, regular staff could take 4 hour shift blocks taken off as vacation, resulting in fixed term staff being scheduled to work these 4 hours.
In London, the Grievors could be assigned or offered up to 40 hours of work per week as fixed-term. The way in which hours were offered and/or scheduled for the Grievors varied. For example, currently at the London worksite, fixed-term employees are called and offered a choice of available shifts, whereas in the past, fixed-term employees submitted their availability on a monthly basis and based on this availability, shifts were assigned. This has been the process the last year with the current Supervisor doing the majority of the scheduling and appears to be working.
In London, as fixed-term employees the Grievors could reach 40 hours of straight time work in a week by working, regular shifts of 12, 8 hours, and/or a partial shift (including 4 hour shifts).
In Hamilton, as fixed-term employees the Grievors could be assigned up to 80 hours of straight time work every two weeks as fixed-term.
The distribution of overtime to fixed term staff differed between London and Hamilton. In London, once and if all fixed term staff have reached 40 hours of work in one week, additional unfilled hours are offered to regular staff as overtime first, with the remaining hours offered to the fixed-term staff as overtime. In Hamilton, fixed-term staff must reach 80 hours of work over two weeks, before overtime hours are offered to full-time staff, and then to Unclassified staff.
In London and Hamilton, full-time employees are paid 80 hours of straight time pay every two weeks.
In London, full-time employees average 40 hours a week over every six week period.
In Hamilton, full-time employees work a total of 80 hours per week every two weeks by working 24 hours one week, and 56 hours the next week.
When the Grievors were awarded full-time, regular positions, their Continuous Service Dates ("CSD") were calculated by the Employer. Cameron Hyndman and Melissa Wheeler were initially informed that their CSDs were the dates of their hire as fixed-term employees (January 17, 2005 and October 25, 2004 respectively). They were subsequently informed in May of 2013 that their CSDs were changed to July 2006 and May 22, 2006 respectively.
The Grievors employed in London were provided with their CSDs approximately 12 to 18 months after their appointment to regular, full-time service."

5No oral evidence was presented at the hearing. Rather, the case was argued on the basis of the Agreed Statement of Facts and the authorities mentioned below.

6The issue in this case is whether the grievors' continuous service dates (csd) were properly calculated by the Employer. For purposes of its calculation, the Employer used article 18.1 of the collective agreement, the material part of which reads:

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:

(b) from the date established by adding the actual number of full-time weeks worked by a full-time fixed-term employee during his or her full-time employment back to the first break in employment which is greater than thirteen (13) weeks;

……………………………………………………………………………………; "full-time" is continuous employment as set out in the hours of work schedules for the appropriate classifications:

The hours of work schedule for Ambulance Communications Officer 1, both regular and fixed-term, is 4.7. As stated in UN 2.2, the normal hours of work for employees on this schedule is forty (40) hours per week and eight (8) hours per day.

7It is my understanding that the Employer, when calculating the csd for the grievors, only credited them for the number of forty (40) hour weeks worked back to the first break in employment greater than thirteen (13) weeks. To be clear, their prior service was not factored into the calculation in respect of any week in which they worked less than forty (40) hours.

8The position of the Union may be summarized as follows:

(i) The grievors were not full-time fixed-term employees in the period material to this dispute and, as a consequence, article 18.1(b) is inapplicable and should not have been used by the Employer to determine their csd. In the alternative, if article 18.1(b) is applicable, the Employer applied an overly literal and excessively strict interpretation to the phrase "full-time weeks worked by a full-time fixed-term employee". From the Union's perspective, the approach taken by the Employer is unfair, as it, in effect, ignored substantial periods of service on the part of the grievors prior to them being hired on a full-time basis. Counsel for the Union observed that such an approach could adversely affect the grievors' status and entitlements including their seniority, benefits, vacation and the quantum of termination and severance pay upon the cessation of employment;

(ii) The Employer's interpretation and application of article 18.1(b) does not match the realities of the grievors' workplace. Counsel for the Union observed that the grievors, at both locations, worked under a compressed work week agreement. She noted that the majority of the shifts under these agreements were twelve (12) hour shifts. Counsel further noted that if an employee was scheduled for three (3) such shifts in a week, they would not reach the forty (40) hour threshold required by the Employer unless they were assigned a partial shift or worked overtime. Counsel also referred to the hours worked by the full-time classified employees at the London and Hamilton sites, as described in paragraphs 12 and 13 of the Agreed Statement of Facts. Simply put, it was her submission that, when viewed in this context, it was wrong for the Employer to only count work weeks of forty (40) hours when determining the grievors' csd under article 18.1 of the collective agreement. In substance, this Vice-Chair was asked to determine what would constitute a full-time week for these grievors given the circumstances present at their work sites;

(iii) A literal reading and application of article 18.1(b) could lead to an absurd result in the sense that "stretches of weeks and months of an employee's service" would be disregarded in the calculation of the csd. Counsel for the Union offered the example of an unclassified employee who worked thirty-six (36) hours per week over a ten (10) year period. She argued that, in such a scenario, the employee would have no seniority when they entered the classified service and would be "the first out the door" in the event of a layoff. Counsel suggested that a similar adverse effect could occur in the context of a job competition. She submitted that "a forty (40) hours a week or nothing" approach could not have been intended by the parties. Counsel also referenced the fact that, pursuant to article 18.1, an employee on maternity leave would receive credit on their return for each week they were away, even if they regularly worked a thirty-six (36) hour week before going on the leave; and

(iv) As stated in (i) above, article 18.1(b) does not apply as the grievors were not full-time fixed-term employees during their unclassified service. Counsel for the Union suggested that they were then more akin to casual on-call employees. It is the Union's position, accordingly, that the Employer's calculation of the grievors' csd was done pursuant to its management rights, as set out in article 2 of the collective agreement. Counsel for the Union argued that the exercise of these rights, in this instance, was not done in a reasonable and fair manner for the following reasons: there is no rational or business reason for the calculation used; there is no rational connection between the purpose of a csd and the method of calculation resorted to by the Employer; and there is no rational connection between the context of the workplace and such method. Counsel reiterated that the Employer's exercise of its management rights could potentially have an adverse impact on the grievors' collective agreement rights. She argued that, as a consequence, the Grievance Settlement Board has the requisite authority to set aside the exercise of management rights. From the perspective of the Union, the Employer's calculation is fundamentally flawed as it disregarded hours worked "en masse" in contrast to recognizing them in some form. In counsel's words, the Employer's approach had "no middle ground".

9For all of the above reasons, it is the Union's position that the method used by the Employer to calculate the grievors' csd violates the collective agreement. Counsel for the Union offered two (2) options to more appropriately calculate the csd. The first may be described as an "averaging" approach under which all hours worked during the grievors' unclassified service would be totalled and then divided by forty (40) to arrive at the number of full-time weeks worked. In the alternative, counsel argued that the hours used for merit pay purposes under article 31A.2.3, that is one thousand nine hundred and twelve (1,912), be utilized as the basis for crediting the grievors with a year of service. She asserted that any remaining hours would then be averaged. Counsel for the Union stated that this proposal as to the method of calculation of the csd applies to both of its alternate arguments. She maintained that such proposal will not over-compensate the grievors, as they will simply receive full credit for all hours that equate to full-time work.

10The Union relies on the following authorities in support of its position: Belleville Police Service Board v. Belleville Police Association (2000), 2000 CanLII 29512 (ON LA), 91 L.A.C. (4th) 99 (Goodfellow); Alliance Employees' Union v. Public Service Alliance of Canada (Ritchie Grievance) (2002), 2002 CanLII 79138 (ON LA), 111 L.A.C. (4th) 402 (Lynk); OPSEU (Pilon) v. Ministry of Community and Social Services, [2003] O.G.S.B.A. No. 38 (Brown); OPSEU (Union) v. Ministry of Community Safety and Correctional Services/Ministry of Children and Youth Services, [2010] O.G.S.B.A. No. 128 (Harris).

11The position of the Employer, in response, may be summarized as follows:

(i) The language of article 18.1(b), and particularly the phrase "actual number of full-time weeks worked by a full-time fixed-term employee" is very clear and has been the subject of comment by prior Grievance Settlement Board decisions. Counsel for the Employer maintained that the Union, through the instant individual grievances, is attempting to amend the collective agreement and to advance an approach the grievors believe will benefit them. On his analysis, acceptance of the Union's argument would run contrary to the intention of the parties with respect to the proper application of article 18.1(b);

(ii) Counsel for the Employer noted that the grievors were not incapable of working forty (40) hours in a week while they worked in a fixed-term capacity under the compressed work week agreements. By reference to paragraph 3 of the Agreed Statement of Facts, he observed that all of the grievors had periods of unclassified time credited towards their csd. More specifically, counsel noted that they had all worked forty (40) hour weeks on numerous occasions;

(iii) Article 18.1(b) does "fit the workplace", as evidenced by the fact that there are periods of time when it captured the grievors' circumstances. Counsel argued that no legal absurdity arises from a collective agreement provision which allows for certain time to be counted for csd purposes and not other times. He submitted that given the clear language of article 18.1(b), the compressed work week agreements are completely irrelevant. In this regard, counsel maintained that there is nothing in the agreements to indicate article 18.1(b) should not apply. In his words, "the required analysis begins and ends with article 18". This Vice-Chair was cautioned against ignoring the express terms of the provision simply because of a "perceived injustice" for one (1) group of employees;

(iv) Similarly, the issue of overtime is completely irrelevant to the resolution of this dispute. In order for the grievors to potentially qualify for overtime, they would have had to work a minimum of forty (40) straight time hours in a week. In that circumstance, those hours would be counted by the Employer in its calculation of csd;

(v) The grievors at all material times were irregularly scheduled fixed-term employees who could work up to forty (40) hours a week. They were not guaranteed any specific number of hours of work. Counsel submitted that, for purposes of article 18.1(b), the grievors were analogous to full-time employees during their fixed-term period of employment. He emphasized that during this period, they fell under Hours of Work Schedule 4.7and that the normal hours of work for employees on that schedule is forty (40) hours per week and eight (8) hours per day. Counsel argued that if article 18 of the collective agreement only applied to full-time fixed-term employees, there would be no need for a provision such as article 18.1(b), as all of their time would count towards the csd. It was the thrust of his argument that, in the circumstances, the Employer properly calculated the grievors' csd when it counted only those weeks in which they worked forty (40) hours;

(vi) A csd confers a potential benefit to an employee relative to their colleagues in the bargaining unit. From the perspective of the Employer, this case does not raise an issue of fairness. Rather, it is focused on the relative benefits between employees. Counsel for the Employer argued that if these grievances are granted and the grievors' csds are adjusted, then it is possible that they could have more continuous service relative to others in the bargaining unit who the Employer believes have more continuous service than the grievors. As a consequence, the grievors could potentially bump a colleague they would not otherwise have been able to displace. Counsel suggested that the employee bumped in this fashion would likely feel that they were treated unfairly. He argued that seniority rights need to be negotiated between the parties. On his analysis, the grievors in effect are asking the Grievance Settlement Board to place them in a better position than other bargaining unit members with respect to their csd;

(vii) If the parties wanted to use an averaging formula for purposes of calculating the csd, they would have clearly expressed that intent in article 18.1 of the collective agreement. Similarly, they would also have specially referenced the merit pay calculation if they wanted it to apply in cases of this nature. Counsel for the Employer noted that where the parties wanted time worked by a fixed-term employee to be calculated in a specific way, they have resorted to express language to demonstrate that intent. He referred to articles 31A.2.3, 31A.15.2 and 31A.17.1 as examples of this approach; and

(viii) In the alternative, the Grievance Settlement Board cannot interfere with the Employer's exercise of management rights in this instance. Counsel noted that, apart from article 18.1(b), there is no provision in the collective agreement that determines how continuous service should be calculated in the circumstances of this case. Put another way, the collective agreement is silent on the point. Counsel submitted that, in the absence of such a provision, there can be no violation of the collective agreement through the exercise of management rights. To constitute a breach, the exercise of such rights must violate a term of the agreement. Counsel noted that the grievances do not allege bad faith. He stated that any exercise of management rights can impact an employee's relationship with the Employer. It was his submission, however, that there is a difference between impacting or affecting an employee's rights and an actual breach of the collective agreement. In summary, counsel maintained that the Employer's exercise of management rights cannot be reviewed here as there was no violation of a substantive provision of the collective agreement.

12For all of the above reasons, the Employer asks that the grievances be dismissed. The Employer relies on the following authorities in support of its position: OPSEU (Pitfield et al.) and Ministry of Correctional Services (1992), GSB No. 2564/91 et al. (Verity); OPSEU (Morton) and Ministry of Correctional Services (1993), GSB No. 2520/91 (Barrett); OPSEU (Scott et al.) and Ministry of Community and Social Services (1997), GSB No. 1434/96 et al. (Gray); OPSEU (Lane) and Ministry of Community and Social Services (1998), GSB No. 1603/95 (Gray); OPSEU (Waraich) and Ministry of Labour (2009), GSB No. 2003-0187 (Watters); OPSEU (Dobroff et al.) and Ministry of the Environment (2008), GSB No. 2003-0905 et al. (Dissanayake); OPSEU (Betsch) and Ministry of Labour (2012), GSB No. 2009-0918 et al. (Gray).

13The wording of what is now article 18.1(b) has been amended on several occasions. It is clear, however, from a reading of Pitfield, Morton, Scott and Lane that the article, and the former language, has consistently been applied for purposes of calculating the csd of employees in circumstances similar to the present grievors. By way of example, in Pitfield it was applied to employees whose appointment to the unclassified service specified "authorized hours of work as required up to forty (40) hours per week-irregularly scheduled". In Morton, it was applied to an employee whose unclassified contract provided that he would work "as required part-time up to forty (40) hours a week". In Lane, the employee was a "casual unclassified employee pursuant to contracts which provided that he would be employed for up to forty (40) hours per week". There is no suggestion in any of these cases that article 18.1(b), or the predecessor language, should not apply with respect to the calculation of csd. The issue, rather, was how the article should be applied to the facts. On my reading, the language of article 18.1(b) as applied in Scott and Lane is virtually identical to the current language. I see no real distinction between a "full-time unclassified employee" in the former language and a "full-time fixed-term employee" in the current article.

14The definition of "full-time" currently found in article 18.1 has not changed over time. In the cases relied on by the Employer, the Grievance Settlement Board approved of the Employer's decision to resort to Schedule 4.7 to determine what constituted "full-time service", "full-time weeks" or "full-time". In each instance, the Board accepted that the Employer properly used a forty (40) hour work week threshold for purposes of determining the csd of unclassified employees hired into the full-time classified service. It is clear from the decisions that work weeks of less than forty (40) hours were not considered to be full-time weeks worked. I note that in Morton, the Union's submission that monthly averaging of hours should be used to assess what constitutes "full-time service" was rejected. This rejection was premised on the definition of "full-time" then found in article 25.1 of the collective agreement. As mentioned above, that definition has been carried forward into the present language. In Morton, the grievor had worked an average of forty (40) hours a week counting overtime for a period of six (6) months.

15In Morton, the Grievance Settlement Board also rejected the Employer's argument that the grievor could not gain any advantage from then article 25.1 because he was working on a part-time contract. Similarly, in Scott the Board determined that an employee "need not have been working pursuant to an express or defacto 'full-time' unclassified contract in order to create credit for a 'full-time week' worked". These decisions suggest that, in cases such as this, the proper focus is on hours worked rather than the nature of the contract. I further note that the decisions in both Morton and Scott determined that overtime hours should not be used to calculate full-time service or full-time weeks. I was not told of the extent of overtime hours actually worked by the present grievors.

16After considering all of the submissions and the authorities cited, I accept that the grievors' csd could be appropriately calculated under article 18.1 of the collective agreement. The grievors could be, and indeed were, assigned or offered full-time hours during their period of fixed-term employment. It is significant, in my judgment, that the normal hours for fixed-term employees working under Schedule 4.7 is forty (40) hours per week and eight (8) hours per day. As noted from the Agreed Statement of Facts, the grievors did indeed work forty (40) hour weeks on numerous occasions. I have been persuaded that the Employer could properly focus on those weeks when calculating their csd under article 18.1.

17Article 18.1 was clearly not intended to give fixed-term employees credit for all hours worked. The remedies sought by the Union would have that effect, if awarded. Such a result would be tantamount to an amendment of the collective agreement. It is for the parties to negotiate this form of credit. It cannot be secured through individual grievances. I note, in this regard, that when the parties wished to resort to merit pay considerations, they expressly provided for the adoption of same (i.e. articles 31A.2.3, 31A.15.2 and 31A.17.1). I further observe that fixed-term employees are not prejudiced in a job competition, as submitted by the Union, as under article 31A.17.1 their service is counted towards the accumulation of seniority pursuant to the formula set out therein.

18I am unable to find that a literal reading of article 18.1 results in a legal absurdity. To reiterate, all of the grievors did receive credit, albeit not as much as they wanted, for the full-time weeks worked. On my reading, the language of article 18.1 is very clear as to which weeks should receive credit for csd purposes.

19I recognize that none of the cases relied on by the Employer related to employees working under a compressed work week agreement. Both of the agreements material here contain the following provision:

"Unless otherwise specified in this Agreement, all articles of the Central and Bargaining Unit Collective Agreements apply to employees covered by this Agreement".

If the parties wanted a method, different from that set out in article 18.1, to be used to calculate the csd for fixed-term employees working under a compressed work week agreement, they should have expressed such intent in the body of the agreement. Clearly, they did not provide therein that weeks of less than forty (40) hours should be treated as full-time weeks for purposes of calculating the csd. In view of the clear language of article 18.1, I lack the authority to define a full-time work week in some other fashion.

20I have not been persuaded that the hours worked by full-time employees in London and Hamilton under their respective compressed work week agreements is all that helpful for the resolution of this dispute. The fact that they may work less than forty (40) hours in a given week does not mean that a fixed-term employee working the same hours should receive credit for similar hours under article 18.1. To count such hours as a full-time week would give these grievors an advantage over other fixed-term employees not working under a compressed work week agreement. The latter group of employees would not receive credit for csd purposes for any week of less than forty (40) hours.

21Lastly, with respect to the Union's alternate submission, I find that the Grievance Settlement Board is without authority to review the Employer's exercise of management rights. In my judgment, no substantive provision of the collective agreement was violated and there is no allegation that the Employer acted in bad faith when it calculated the grievors' csd.

22For all of the above reasons, the grievances are dismissed.

Dated at Toronto, Ontario this 15th day of January 2015.