GSB# 2015-3316

UNION# 2016-0586-0003

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Serratore)

Union

• and -

The Crown in Right of Ontario (Ministry of Community and Social Services)

Employer

BEFORE

Barry Stephens

Arbitrator

FOR THE UNION

Tim Hannigan Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Peter Dailleboust Treasury Board Secretariat Legal Services Branch Senior Counsel

HEARING

April 10, 2018

DECISION

1This grievance was heard under the provisions of Article 22.16 of the collective agreement.

2The issue in this case is whether the grievor should have been converted to full time sooner under Article 31A15.

3The union relies on an email from the grievor’s supervisor in December 2015 that the grievor would be converted to full time in February 2016. The employer takes the position that the grievor failed to reach the 18-month threshold in February 2016 due to absences that served to delay the accumulation of the required service time.

4The employer argued that the email relied upon by the grievor was not conclusive, given that it was couched in conditional language and, regardless, such a communication could not have the power to supercede the language of the collective agreement.

5The parties are agreed that authorized leaves of absence are counted for the 18-month qualifying period. The employer contends that “authorized” absences contemplates only those absences under Article 31 that apply to fixed term employees, as set out in the decision in McPhail 1873/97 (Briggs). The employer also relied on the second paragraph of 31A.8.1, which stipulates that an absence covered by an attendance credit is counted for the purposes of the article. The employer argued that the logical implication of this language is that a sick absence that is not covered by an attendance credit is not counted for the purposes of Article 31(a)16. There is no question that the grievor’s record includes sick time that was not covered by attendance credits, and as a result her service was broken.

Decision

6I agree with the employer that the December 2015 email was written in conditional language and, regardless, did not have the status of an official communication between the parties that could be taken to amend or alter the language found in the collective agreement. In my view, the employer’s analysis of the grievor’s circumstances is correct, and she failed to complete the required service under Article 31(a)16 due to her service being interrupted by absences that were not covered by attendance credits.

7Given the above, it is my conclusion that the grievance should be dismissed.