Award Number 90-050

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Award Date:	1990-06-01
Arbitrator:	Joyce, R. View awards by Joyce, R.
Municipality:	Toronto View awards from Toronto
Region:	Central View awards from Central
Classifications:	Jurisdiction, Employment Standards Act, Termination Pay, Severance Pay
Grievor:	M. Connor
Appearances:	B. Brown and L. Hazel, for the Applicant, for the Association D. Strang, for the Respondent, for the Employer
Length of Award:	24 pp
Collective Agreements Cit.
Statutory Cit.	Employment Standards Act, 1980, ss 1, 2, 39, 40,65; Reg. 286 Police Act, ss 23, 28 and 29 Labour Relations Act s. 2(a)

Summary

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Jurisdiction   Civilian members - Application for review of order to pay pursuant to Employment Standards Act - Whether ESA applies to civilian members of a police force - School crossing guards fall under Police Act as civilian employees but are not covered by terms of collective agreement between police services board and police association - No specific exemption of police employees under ESA - However apart from s. 39 ESA not applicable to uniform members - Uniform members excluded from ESA by virtue of their status as office holders - Civilian members of a police force fall within definition of “employee” under ESA - School crossing guard claimant entitled to protection and benefits in ESA - Jurisdictional objection dismissed.

Employment Standards Act   Civilian members - Whether Employment Standards Act applies to civilian members of a police force - Civilian police members fall within definition of “employee” under ESA - Police employees not specifically excluded from ESA - Agreed that uniform members nevertheless excluded apart from s. 39 - Status of civilian employees distinguished since civilians not office holders - ESA applies to civilian employees of a police force.

Termination Pay   Civilian members - Application for review of an order to pay termination pay pursuant to Employment Standards Act - Claimant was a school crossing guard employed over the course of 17 years on a series of term contracts - Term was for 10 months each year - No recall rights - Claimant was “employed for a definite term or task” within the meaning of s. 40(3)(a) of ESA - Claimant not entitled to notice and termination pay - Order to pay rescinded.

Severance Pay   Entitlement - Civilian members - Application for review of an order to pay severance pay pursuant to Employment Standards Act - Claimant was a school crossing guard employed on a series of term contracts - Claimant re-employed each year for 17 years but only for duration of school year - Claimant not “employed for five or more years” as required under ss. 1(c) of s. 40a - Claimant not entitled to severance pay - Order to pay rescinded.

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Facts

This proceeding was an application to review an order for payment pursuant to the Employment Standards Act. The applicant, the Metropolitan Toronto Board of Commissioners of Police, appealed the respondent’s order to pay the claimant, Ms. Connor, pay in lieu of notice of termination as well as severance pay. The total order was $2,842.84, comprising wages, vacation pay, severance pay and a penalty. The claimant had been employed by the board as a school crossing guard since 1971. She was dismissed on January 26, 1989. School crossing guards were civilian employees under the Police Act but they were not covered by the terms of the collective agreement between the board and the police association. Instead they could join a voluntarily recognized association, the School Crossing Guards Association of Metropolitan Toronto. School crossing guards were required to complete an “Application for Employment/Re-employment” each school year. Their employment ran from September through June each year. At the end of the school year the guards received application forms for unemployment insurance and were paid 4% vacation pay. They had no recall rights.

Argument

The applicant argued that the respondent erred in concluding that at the time of her dismissal the claimant had been continuously employed for 17 years. The applicant further argued that the Employment Standards Act did not apply to civilian members of a police force. It was common ground that uniform members were excluded from the ESA except for s. 39 which dealt with lie detector tests. The applicant argued that civilian members were likewise excluded. The respondent argued that civilian members fell within the definition of “employee” under the ESA and since there was no explicit exception in the Act for members of a police force, civilian members were entitled to the benefit of the ESA provisions. On the merits of the order to pay, the respondent argued that the ESA was designed to protect employees from being employed, released and re-employed in a manner which would allow an employer to avoid notice and severance pay requirements. In this case, the claimant was continuously employed on the same job for 17 years.

Award #

It was agreed that as office holders uniform members of the force were excluded from the ESA. However, unlike the Labour Relations Act, the ESA contained no specific exclusion of police employees. Had the legislature intended to exclude civilian members from the ESA, one would have expected such an intention to be clearly expressed in the Interpretation section of the Act. Civilian members fell within the definition of “employee” under the Act. Accordingly, they were entitled to claim the protection and the benefits of the Act. The employer in this case elected to re-employ school guards each year. The Act permitted specific terms or tasks for up to one year. That duration was not exceeded in this case, since the claimant’s employment ran for 10 months each year. The claimant was “employed for a definite term or task” within the meaning of s. 40(3)(a), which constituted an exception to the requirement of notice/pay in lieu of notice. Accordingly she was not entitled to the notice provisions of s. 40. With respect to severance pay, one of the requirements of the ESA was that an employee must have completed at least five years of employment. Given the history of the claimant’s employment, it was clear that she had not completed even one year of service. Accordingly she was not entitled to severance pay. Order to pay rescinded.

Authorities Cited

• Re Town of Napanee and Graham (Nov. 23, 1989, referee Joyce) • Re Webster Manufacturing Ltd. (Nov. 19, 1982, referee Roberts) • Re Ministry of Community and Social Services (Sept. 10, 1989, referee Haefling) • Re Domtar Inc. (Jan. 15, 1986, referee Fraser) • Re Standard Commercial Tobacco Co. of Canada Ltd. (Mar. 18, 1987, referee Brown)

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