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HomeMy WebLinkAbout1987-0213.Anderson.94-02-03DES GRIEFS BBTWREN FOR THE GRIEVOR FOR THE C. Riggs EMPLOYER Counsel Hicks Morley Hamilton Stewart & Storie Barristers & Solicitors HEARING June 9, 1993 January 21, 1994 THE GRIEVANCE SETTLEMENT BOARD OPSEU (Anderson) - and - Grievor The Crown in Right of Ontario (Ministry of Revenue) Employer D. Kates M. Gandall A. Stapleton Vice-Chairperson Member Member C. Paliare Counsel Gowling, Strathy & Henderson Barristers & solicitors 1 Decision On February 3, 1987, eleven aggrieved Financial Officers II applied for eight vacant positions in the Financial Officer III classification. The duties of the position entailed auditing ,private enterprises with respect to the payment of taxes under three pieces of Provincial Tax Legislation. In their current positions the candidates performed numerous auditing functions with respect to Provincial Tax Legislation. Essential to the performance of the duties of the posted positions the candidates had to become versed in the applicable computer technology. It is common ground that the mandatory academic requirement for consideration for the vacancies was "successful completion of fourth level CGA orMA..." course work. If a candidate could not satisfy this formal educational requirement he or she was eliminated (ie., screened out) from the competition irrespective of the candidate's current standing with respect to his or her completion of the formal course ,work and/or his or her "demonstrated ability" to achieve these course requirements. Accordingly, the principal issue to be resolved at arbitration was whether this mandatory academic requirement for course completion at the fourth level CGA or CMA was "reasonable". It is also common ground that each of the candidates were "screened out" because of their failure to meet the formal educational qualifications for the position. The employer was in the process of hiring and indeed had hired candidates from outside the Public Service to fill the vacancies. These new hirees were I ,’ 2 then given the benefit of a training program to enable them to perform the functions of the position. During the fourth day of hearing of this matter (February 8, 1989), the Board through the Chair advised the employer's counsel that the case was not going well for her client and that she would be best advised to seek instruction with respect to'securing a "settlement". Counsel indeed accepted this advice and secured such instruction,. In due course after a short period of negotiation with counsel for the trade union several matters were resolved towards achieving a settlement. With respect to those matters that could not be resolved the Board played a mediative role. Ultimately, the parties were successful in achieving a settlement of the outstanding issues. The employer's counsel insisted (with the trade union's concurrence) that the terms of settlement should be incorporated into a Board order and enforceable as such. In due course, the Board issued the following decision dated February 8, 1989: Decision On the basis of the evidence and the parties' representations thereto, the Board hereby orders and directs the following: 1) The Employer concedes~ that it violated Article 4 of the Collective Agreement. 2) The Employer agrees to repost forthwith seven positions Of Senior Field Auditor (Financial Officer 3)'. The new posting shall specify that: i) The position is a training position; ii) The applicants must have successful completion of fourth level CGA or CMA or demonstrated ability to acquire the qualifications for the position at the end of the training period. 3 A.new selection committee shall be constituted consisting of no members of the previous selection committee. 3) 4) 5) 6) 7) 8) The new committee is free to develop whatever procedures and questions it deems appropriate within the parameters of Article 4 and the Board's jurisprudence. The incumbents may not rely upon any knowledge or experience gained in this job as a result of being awarded the position in the original competition or a subsequent assignment to that position. The area of search will be confined to civil servants working in the Motor Fuels and Tobacco Tax Audit Section as of the time of the original posting. The selection committee shall retain all records, individual and collective, of its proceedings and deliberations. The Board retains jurisdiction over the implementation of the award and over any issue that may arise with respect to the new posting. Dated at Toronto this 8th day of February, 1989. In the course of carrying out the terms of settlement three of the aggrieved employees were successful in securing the vacant positions. Following their appointments they sought retroactive pay for the period they were denied the position having regard to the employer's admitted breach of the collective agreement. The employer denied them their request for setroactive payment. The reason the Board was asked to reconvene these proceedings was for the purpose of determining the validity of the claims for retroactive compensation of the three successful candidates. Our jurisdiction to determine that issue flowed from the Board's order where jurisdiction was retained "over the implementation of the award and over any issue that may arise with respect to the new posting". The employer's reason for denying compensation pertained to an 4 alleged oral agreement negotiated between counsel during their settlement discussions. The parties advised the Board that no specific agreement with respect to compensation was committed to writing in the settlement document that later constituted the Board's order. No written note was recorded by either counsel to verify or confirm that the issue of retroactive compensation was ever raised during their discussions. Indeed, the Board was not advised during the course of its mediation of the issues not resolved by counsel that there existed an alleged arrangement or understanding with respect to compensation. Indeed, we were not asked to play any role with respect to the issue of retroactive pay at any time prior to consummating the settlement document. The trade union's explanation for this state of affairs was clear and succinct. No such agreement on retroactive pay was ever entered into. Indeed, the trade union maintains the matter was not at any time raised for discussion during counsels' negotiations. Accordingly, that issue,~ from the trade union's perspective, remained an outstanding matter for which the Board retained jurisdiction in the event that retroactive compensation should later become an issue arising out of the implementation of the Board's order. The employer observed that counsels' agreement was "verbal". The employer insisted that there was no "necessity" to commit counsels' understanding with respect to retroactive pay to writing. And, indeed, in a manner that, in our view, appeared to anticipate and preempt any argument with respect to the prudence of committing 5 such matters to writing counsel forthe employer insisted that it would have been inconsistent with the terms of settlement or indeed would have been "irrational", having regard to the prevailing circumstances, for the parties to have "recorded" their agreement with respect to the trade union's waiver of compensation. The .Board will explore the employer's position in that regard in due course. It is also common ground that each of the aggrieved employees who were awarded the position would be entitled to approximately $8,000.00 in compensation should their monetary claims succeed. Acc'ordingly, at the time of the implementation of the parties' settlement the employer appreciated that absent an understanding with the trade union with respect to retroactive compensation it might very well be vulnerable to (should all of the aggrieved applicants have been successful) an enormous financial liability. Ms. E. Hipfner at all material times acted for the employer during the negotiation process that resulted in the settlement document. She was employed as Staff Relations Officer (Management, Board) at the material time of these events. Although engaged as a Staff Relations Officer, Ms. Hipfner is an accredited lawyer and purported to act as counsel during the proceedings that culminated in the parties' settlement. Mr. B.A. Hanson is an accredited lawyer who has acted as counsel in numerous labour relations matters since admitted to the Bar in 1984. He represented OPSEU and, more particularly, the aggrieved employees during the course of the settlement discussions 1 that culminated in the Board's order. '6 No party challenged the notion that an agreement or settlement with respect to retroactive compensation can take the form of a verbal agreement. Accordingly, the Board was foisted with the unenviable task of having to choose or prefer the testimony of one counsel in deference to the otherwith respect to the existence of any such oral arrangement. Needless to say, in our view, that responsibility involves having regard to the conflicting testimony of both counsel, an.evaluation of all relevant, objective factors inclusive of the sheer, business if not professional wisdom of confirming such,agreements in writing. .In that regard, we hold it to be the employer's burden having regard to the lack of a written agreement, to convince us of the existence of the oral arrangement that resulted in union counsel waiving the aggrieved employees' entitlements to retroactive compensation. To this end, Ms. Hipfner testified that on February 8, 1989 she communicated with Ministry representatives during the lunch break in order to relay the Board's advise with respect to the direction the proceedings were assuming. She received instructions to approach trade union's counsel with a view to negotiating a settlement. Ms. Hipfner was directed to insist that any settlement be "prospective" in nature. That is to say, pursuant to a fresh competition, should any of the applicants later succeed in being awarded the vacant positions there would be no liability' for retroactive pay. In Ms. Hipfner's view the employer's insistence on holding itself harmless from any claim for retroactive pay was . 7 a.condition precedent to any settlement agreement. Ms. Hipfner entered the hearing room to communicate her instructions to Mr. Hanson. She found Mr. Hanson seated at the counsel table. Mr. Hanson suspected, having regard to the expression on Ms. Hipfner's face;that no deal would be in the offing. To the contrary, Ms. Hipfner as she stood to the side of Mr. Hanson remarked that: There could be a deal if we could agree to a term that it had strictly a prospective application. She indicated that Mr. Hanson then looked down at the counsel table and appeared to be contemplating the proposal after which time he nodded his head indicating his approval. He then said (or appeared to say) words to the effect that "I can live with that", or "That sounds okay". In short, there was no doubt in Ms. Hipfner's mind that Mr. Hanson understood, having regard to the prospective application of any settlement, that there would' be no future liability for retroactive pay and that he assented to that term unconditionally. He thereby bound his clients to a waiver of their contingent financial entitlements. Thereafter no further mention was made of the compensation issue. Nor did any one party record for future reference any understanding of the existence of any term of the agreement 'dealing with retroactive pay. Mr. Hanson clearly indicated that no prior condition came from the mouth of Ms. Hipfner for entering the settlement discussions based on the "strictly" prospective application of its terms. He resisted any suggestion that he may have misunderstood or 8 misappreciated the impact of Ms. Hipfner's remarks. Moreover, he. indicated that had he been disposed to agree to any such condition he would have first consulted with the grievors (no OPSEU representative was present) on such an important matter before indicating his approval. Moreover, had he received instruction to accede to the employer's condition he would have insisted that any waiver of retroactive pay be committed to writing and form a part of the settlement document that was later incorporated into the Board's order. From the employer's perspective Ms. Hipfner was convinced that the omission of any reference to the compensation matter in the settlement document was consistent with what had been agreed to. That is to say, irrespective of whether an aggrieved employee should be awarded the position no monies would be payable. Accordingly, there was non necessity for its inclusion in the Board's order for "prospective" enforcement. Indeed, Ms. Hipfner was so confident of this premise she did not record the agreement on her file, or secure confirmation of the agreement in a separate letter to Mr. Hanson. Nor was the Board asked during our mediation efforts to note counsel's mutual understanding. In short, the only direct proof of this arrangement was the momentary conversation between counsel on a matter that Ms. Hipfner termed as "important" and a condition'precedent to the settlement discussions. Indeed, absent that arrangement with respect to the prospective application of any future settlement, Ms. Hipfner claimed she .would have had to secure further 9 I instruction. After the compensation issue was resolved both counsel entered into ti discussion of the approximately eight items that constituted the terms of settlement. Mr. Hanson wrotethe first draft which, but for two items (that were ultimately referred to mediation) found favour with Ms. Hipfner's understanding of their verbal agreement. Because of Mr. Hanson's awkward handwriting Ms. Hipfner redrafted the settlement document omitting any reference to the trade union's waiver. That document was presented to the Board prior to our consideration of the two outstanding matters that had to be resolved. Mr. Hanson testified that he discussed the contents of the draft document with the grievors prior to communicating his assent. He sought their instruction on matters that were agreed to. And on matters that were not agreed to he assisted them in reaching a consensus. The twos matters that could not be agreed to pertained to the "area of search" of new competition and "the formal academic requirements". In resolving those matters he received their direction during the course of the. Board's mediation efforts'. At ho ‘time did Mr. Hanson indicate that he raised the compensation issue with the grievors in order to apprise them of any understanding he had reached with the employer's counsel I purporting to waive their financial entitlements. As hitherto indicated, three grievors were successful in being awarded the vacant positions. In May 1989, their OPSEU representative requested on their behalf retroactive payment. The . . 10 employer's representative upon receiving that request consulted with Ms. Hipfner. Ms. Hipfner confirmed her understanding with the Ministry's representative that she had achieved a settlement of the compensation matter in accordance with the terms already described. And, of some significance, she advised the Ministry's representa- tive (Mr. D. Daniels) to secure confirmation of her understanding through OPSElJ's consulting with its solicitor, Mr. Hanson. Matters appeared to have rested in abeyance until November 1989. Indeed, Ms. Hipfner felt reinforced in her position during this lengthy interval and had assumed that the matter had been resolved. Another request for compensation however was made. In a letter from Mr. Hanson to counsel dated November 9, 1989, he asks: November 9, 1989 Eileen Hipfner Staff Relations Officer Management Board of Cabinet 10th Floor, Suite 1001 Frost Building.South- 7 Queen's Park Crescent Toronto, Ontario M7A lA6 Dear Ms. Hipfner: Re: Ontario Public Service' Employees Union (OPSEU) and Ministry of Revenue - Anderson et al. GSB File 0213/87 - OPSEU File 87B93 I am advised that three of the grievors in the above noted matter were selected for the position of Financial Officer 3 pursuant to the posting ordered by the Grievance Settlement Board. The grievors are: Neil Jones, John Baretto and Alvin Belanger. I am also advised that none of the three grievors received retroactive payment of salary at the Financial Officer 3 rate to the date of the grievance. It is the Union's position that the three above named grievors . - __ are entitled to retroactive pay at the Financial Officer 3 rate to the grievance. It is my understanding that the Ministry has taken the position that they are not so entitled. This is to advise you that should the Ministry continue to take that position, we will have no recourse but to ask the Grievance Settlement Board to reconvene pursuant to the terms of its order dated February 10, 1989, to determine the matter. Please advise me of your position in regard to this matter. Should you have any questions, please do not hesitate to contact me. - Yours truly, CAVALLUZZO, HAYES & LENNON "Bernard A. Hanson," In reply on November IO, 1989, Ms. Hipfner writes the following: November 10, 1989 Bernard A. Hanson .Barrister and Solicitor Cavalluzzo, Hayes and Lennon 43 Madison Avenue Toronto, Ontario M5R 2S2 Dear Mr. Hanson: Re: OPSEU (Anderson et al) and Ministry of Revenue GSB f0213/87 Thank you for your letter of November 9. It is the Ministry's position that it has complied with the order of the Grievance Settlement Board dated February 10, 1989. Please give me a call if you have any questions about this matter. Yours very truly, "Eileen Hipfner" Staff Relations Officer During her cross-examination Ms. Hipfner was asked why she did not raise the oral arrangement on compensation she had reached with Mr; Hanson in her written reply to Mr. Hanson's request or otherwise confront counsel directly with what appeared to be the 12 union's withdrawal from that understanding. (Incidentally, Mr. Hanson made it perfectly clear that he was not in the habit of "welshing on deals".) ,She responded by indicating that she did not feel "obliged" to mention the agreement. For his part, Mr. Hanson operated on the assumption prior to resumption of these proceedings that the employer was relying 'on a particular provision of the "written" settlement in order to justify its refusal to provide retroactive compensation. At no time prior to the initial scheduled hearing of this matter (on April 9, 1990) did Mr. Hanson appreciate that the employer's refusal to pay was based on any alleged oral arrangement that he was privy to during the settlement discussions. Indeed, that hearing had to be cancelled in order to enable counsel to secure independent representation with respect to the employer's unanticipated argument. In treating the principal issue~as to whether there existed an alleged oralarrangementwith respecttothe "strictly" prospective operation of the settlement document we find that that matter can be resolved without dealing with the conflict in counsel's versions of their discussions. As indicated, no one party took notes of the event and thereby each relied upon their own memories of what had transpired. However, it suffices to say, given the circumstances surrounding those events at the material time of counsels' discussions, that we are quite satisfied that neither counsel shared a meeting of the minds or were together (ad idem) with respect to the issue of retroactive pay. Or, more precisely, a 13 significant ingredient or. component was absence in support of our finding in favour of the existence of an oral arrangement relating to retroactive pay. Accordingly, we have concluded that counsel were never engaged on that issue at any time during their negotiations. We say this because it would appear to be not only a prudent practice but consistent with the negotiation of a binding arrangement with respect to the elimination of "prospective" financial liability for counsel to have left a written trace of its existence. Either a contemporaneous note recorded on a file or a . confirmation letter from one counsel to the other would have been indicative not only of the existence of the arrangement but consistent with accepted industrial relations practice. Moreover, the sheer enormity of the amounts of money that might be involved and the employer's potential liability therefore would point to the likelihood of this course of action if.counsel had truly addressed their minds to the issue of retroactive compensation and had agreed to its abandonment. It is also not without relevance to indicate that the employer's counsel was the party who insisted that any settlement that was eventually arrived at ought to assume the form of a Board f order. That course of action was clearly agreed to and carried out to a finality. We find it difficult to appreciate why the employer's counsel would insist on the precaution of incorporating the settlement document as a Board order without at the same time ensuring that an important, if not essential term, be incIuded. In 14 short, since the purpose of the Board order was to allow the parties to invoke the enforcement procedures of the settlement's terms in accordance with known policies and procedures under the prevailing Legislation,'the omission of an essential term from that perspective would, to say the least, appear to be counterproductive. Mr. Hanson indicated that he would not have knowingly entered into any oral arrangement on such an essential term without first securing instruction from his clients. Moreover, if he received such instruction he would have insisted that it be included in the settlement document. We accept counsel's position not so much because that course of action represents a prudent practice that an experienced lawyer would normally follow. Rather, we accept his statement because we observed counsel follow~that very practice in dealing with the two matters that remained outstanding and that were later resolved during the Board's mediation. In resolving both "the field of search" and the formal qualification issues Mr. Hanson both sought and secured instruction from his clients. It would appear to be highly unlikely for counsel to act zany differently with respect to a matter that had such substantial financial implications for those whose entitlements would have been eliminated. In that light, counsel could hardly have addressed himself to the issue of retroactive pay, even if, as we do not doubt, Ms. Hipfner honestly believed she presented that term as a condition precedent to the settlement discussions. Finally, we do not hold .it to have been an unwarranted 15 response to Mr. Hanson's written request (November 19, 1989) for payment for Ms. Hipfner to have confronted Mr. Hanson with OPSEU's withdrawal from their alleged oral arrangement. As Mr. Hanson recognised, he would have been "welshing on a deal" had he followed that course of action. It would have been in our view a reasonable and indeed a natural response for Ms. Hipfner to have questioned Mr. Hanson about such apparently unseemly conduct if such a deal truly existed. That course of action would not have been a question of "obligation" as indicated by Ms. Hipfner but would have given vent to a most disappointing professional experience. Indeed, we would observe that Ms. Hipfner gave that very advice to the Ministry's representative when she first learned of OPSEU's request for retroactive pay. 'She counselled Mr. Daniels to remind OPSEU of its counsel's arrangement with her at the time of the negotiations. Moreover, she recommended that confirmation of the oral arrangement be secured directly from Mr. Hanson. A similar response by counsel to Mr. Hanson's request expressing her disapproval of Mr. Hanson's conduct would have been clearly expected. And, of course, thereafter Mr. Hanson experienced "surprise" when he learned of the employer's position with respect to his alleged commitment to an oral arrangement precluding retroactive pay. Counsel for the employer sought to persuade the' Board by itemising several factors as to why the omission of any written reference to the parties' oral arrangement would have made prudent, . , 16 rational (ie., business) sense. For example, the numerous individual grievance forms referred to the employer for settlement by OPSEU made no specific claim for compensation or, at best, made an oblique reference to financial relief (ie., "at minimum reclassification to a financial officer position"). Later, the employer asserted that, "GSB policy" with respect to retroactive relief was, from its perception of the jurisprudence, problematic with respect to an employee's automatic entitlements to monetary relief in the event of employer breach of the competition provisions of the collective agreement. And, finally counsel referred to a settlement document involving these same aggrieved employees where their "classification" grievances had hitherto been resolved. Included in that settlement document, unlike the instant case, was an express provision allowing for retroactive payment. These factors, namely,.omission of any reference to monetary relief in both the grievances and the previous settlement document in the context of an employee's "problematic" entitlement to retroactive relief, resulted in counsel's conclusion that there was no compelling reason to expressly include the parties' ,alleged oral understanding in the settlement document before us. .And, more particularly, the employer argued that because Mr. -Hanson had specific knowledge of the settlement document resolving the previous classification grievances (because of an objection made by the employer to the validity of the instant grievances which need not be detailed) Mr. Hanson should be held accountable . ’ 17 for failing to insist on an express inclusion of a claim for retroactive relief in the settlement document. Or, more importantly, the absence of any reference to monetary relief in the settlement document should indicate that no such claim was anticipated. Accordingly, all of the foregoing was consistent with the parties' oral arrangement that no retroactive pay would be forthcoming. If counsel is indeed correct in those submissions then, in our view, there was absolutely no reason for the employer to insist upon "the strictly prospective application" of then terms of settlement as a condition precedent'to the settlement discussions that ensued. We are quite satisfied that Ms. Hipfner, given the alleged importance she claimed the employer attached to that condition, knew that the aggrieved employees expected, despite any perceived shortcomings in the content of the grievance forms, and the problematic nature of Board jurisprudence, the payment of retroactive compensation in the event of their success after the rerun of the competition. Indeed, that notion is central to our conclusion that such a provision waiving or abandoning retroactive compensation should have been recorded or acknowledged in writing, having regard to prevailing industrial relations practice, if there truly existed any such consensus reached by the parties' representatives. Insofar as the settlement document in the instant case contains no express provision for retroactive pay whereas the previous document settling a classificationdispute does can be . , 18 readily distinguished. In the previous case the resolution of several classification grievances truly decided in a final and binding manner the parties' dispute. There was nothing thereafter to be resolved. In the instant case, the settlement document contemplates the implementation of certain terms and conditions (namely the rerunning of the competition) before which time a legitimate claim for monetary relief might crystallise. At the time the settlement was reached the employer's financial liability was at best notional or contingent. Moreover, that is the very reason, as, argued by OPSEU, that the Board was asked to remain seized in the event that implementation problems., inclusive of the computation of monetary relief, should later arise. In short, unless monetary relief was to be abandoned, we are of the opinion there was no compelling reason for the issue of financial relief to be expressly included in the settlement document that was agreed to. Or, more precisely, it was expressly included in the sense it was a matter over which the Board.remained seized. For all the foregoing reasons the employer is directed to pay the aggrieved employees an appropriate amount in compensation in accordance with the aforesaid and we shall continue to retiin seized. Dated this 3rd day Of February {see addendum1 David II. Kate+, Vice-Chairperson -------------.A. _----__- M. Gandall, Employee Nominee A. Stapleton, Employer Nominee 19 Addendum The Board notes for the record that nothing was raise din argument during the hearing on January 21, 1994, that had not, been raised at a previous hearing. Indeed, we remain convinced that the objective evidence that would have allegedly prompted the employer to raise concerns with respect to "the prospective application" of the parties' settlement would have equally resultedinwritten confirmation of any arrangement that may have allegedly been reached. Ins absence thereof we remain satisfied that a misunderstanding in fact occurred that has resulted in our finding that no arrangement with respect to "retroactivity" was reached.