Employee working full-time hours not eligible for full-time employment

The Canadian Union of Public Employees (CUPE) local 79 filed a grievance after the City of Toronto failed to convert Paula Melville to full-time employment status. The union argued that Melville — a member of the recreational workers part-time bargaining unit — was entitled to employment under the full-time collective agreement. A memorandum of agreement between the union and employer creates a possible bridge, the union argued, that qualifies Melville for full-time employment.

When she was hired in 2006 Melville worked as a registration clerk in the recreational unit. Within months of her hiring, however, she was reassigned as a support assistant. The position — which falls within the full-time bargaining unit — is covered by the full-time collective agreement.

While Melville performed the full-time duties of a support assistant — and received the wage rate — for a number of years, her official base position continued to be that of a registration clerk. As a result she remained a member of the recreational workers part-time bargaining unit.

In order for an employee to be qualified for the jump to the full-time bargaining unit, the employee must have worked full-time and must continue to be scheduled for full-time work.

The union submitted Melville had more than met the requirements. She had worked in one classification — support assistant — at a minimum of 35 to 40 hours per week, 52 weeks per year inclusive of sick time, vacation and statutory holidays as well as any other leaves of absence.

Melville is entitled to the benefits of the full-time status that corresponds with the work she has been doing, the union argued, asking arbitrator Russell Goodfellow to rule Melville is entitled to a review in order to determine her eligibility for full-time employment.

The employer argued Melville does not fall within the scope of the memorandum. The memorandum of agreement applies to three specific part-time units, clearly chosen by the parties. The bridge to full-time employment is only extended to employees who have been working continuously in a single classification covered by one of those units.

Because Melville falls outside of this requirement, the employer said, she is not eligible and there is therefore no point in granting her a review. Melville has, however, had the good fortune to work full-time hours and receive full-time pay shortly after being hired as a part-time employee. The employer asked the grievance be dismissed.

"While it is certainly true, as the City points out, that Ms. Melville was fortunate to enjoy the benefits of full-time hours and increased pay shortly after being hired as a part-time employee, she has yet to enjoy the full benefits of that status," Goodfellow said. "Unfortunately, however, the memorandum upon which the union relies to attempt to secure a review of Ms. Melville’s status towards possible placement in the full-time unit simply does not apply."

While Melville’s situation meets many of the memorandum’s criteria — including full-time hours, in a single position, for a period greater than 12 consecutive months — it does not meet the final requirement of hours worked in one of the three eligible part-time units. The many hours worked by Melville were in the full-time unit as a support assistant.

"Thus, while I fully appreciate the equitable and purposive arguments advanced by union counsel, I regret that I am unable to give effect to them," Goodfellow said.