HomeMy WebLinkAbout1987-0368.Cornell.88-06-10IN THE HATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between:
Before:
For the Grievor:
For the Employer:
Hearing:
OPSEU (Margaret Cornell) Grievor
and
The Crown in Right of Ontario
(Ministry of Correctional Services) Employer
Nimal V. Dissanayake
P. Klym
H. Roberts
Vice-Chairman
Member
Member
S. Ballantyne
Counsel
CavaLluzzo, Hayes & Lennon
Barristers 8 Solicitors
L. McIntosh
Counsel
Crown Law Office
Attorney General of Ontario
February 8, 1988
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DECISION
In this grievance the grievor states as follows: "I
grieve that I am not being paid the correct salary as
set forth according to signed contracts”.
She requests
that "the correct salary be paid and from the date it
was due."
At the commencement of the hearing the employer
took the position that this Board lpcked jurisdiction to
determine the grievance. The Board proceeded to receive
evidence and submissions with respect to the
preliminary issue and the merits of the grievance
together.
The material facts are not in dispute. The grievor
was the only person who testified. Since 1981 the
grievor has been employed by the Ministry of
Correctional Services, as a Cook 2 at the Sault Ste.
Marie jail. She worked 24 hours per week until sometime
in 1984, when her hours were increased to 32 hours. It
is common ground that the grievor continued to be in the
unclassified service after the increase in her weekly
hours to 32.
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The grievor's employment was governed by a series
of contracts of employment. In 1986, she was subject to
an employment contract which had an effective date of
January 1, 1986 and an expiry date of December 31, 1986.
This contract stipulated that the total hours per week
will be 32 hours. The grievor, testified that sometime
in 1985, the Superintendent of the jail told her that
because of a planned expansion of the jail her hours
will be increased to 40. She was not told when this
change in hours will take place. Even though the
existing contract was not due to expire until December
31, 1986, the employer unilaterally offered her a new
contract effective February 10 to March 31, 1986 and the
grievor accepted the same by signing it.
This contract is in a standard form. There are
three boxes indicating "New", "Renewal", and "Change
(specify)" at the top of the form. The box indicating
"Change specify" was checked and the words "32 hours to
40 hours per week" entered in the space provided. Under
the title "terms and conditions" is included the
following printed words "Normal hours of work not to
exceed/not less than ibla.n&~) per week." In the blank
space "40" has been typed in. Below the terms and
conditions, the following has been typed in:
f
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"Convert present contract of 32 hours per week
to 40 hours per week unclassified until March
31. 1986. Position to be converted to classified staff April 1, 1986"
This was followed by another contract effective
April 1, 1986 to December 31, 1986. A clause under
"other terms and conditions" in this contract reads
"Normal Hours of work not to exceed/not less than 40
hours per week." The words "full-time employment" are
inserted following the foregoing sentence. Later on in
the contract a notation is made that "Position to be
converted to classified staff in near future." The
next contract effective January 1, 1987 to June 30,
1987, states under "other terms and conditions" as
follows: "Authorized hours of work as required up to 40
hours per week. Full time employment."
The grievor's hours of work remained at 32 per week
through all of these contracts. She was assigned 40
hours only when she was classified in February 1987
after the grievance had been filed. When she was not
classified on April 1, 1986 as stated in the contract
the grievor raised this with her superiors. She also
questioned the fact that she was not getting 40 hours
per week. She discussed this with her immediate
supervisor, the Deputy Superintendent and the
Super intendent of the ja ,il. She was told that she will
get 40 hours if she is the successful bidder in a
competition for a classified position expected to be
posted sometime in the future. The evidence indicates
that while she continued to get only 32 hours, from
February 10, 1986. she received benefits such as sick
days and OHIP coverage, as if she were a full-time
employee performing 40 hours per week.
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It is the union's contention that commencing
February 10. 1986, the grievor and the employer became
bound by a contract of employment which guaranteed 40
hours of work per week to the grievor and that the
employer breached this contract by continuing to provide
only 32 hours per week until the grievance was filed.
The union claims on behalf of the grievor compensation
for eight hours per week for the period in question.
Counsel.for the union concedes that the grievor has
been employed in the unclassified service throughout the
relevant time and that by virtue of article 3.1 of the
collective agreement the grievor's ho-i-s of work and
wages are not governed by the provisions of the
collective agreement. Nevertheless, she submits that
the Board has jurisdiction over this grievance.' Counsel
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The union's contention in support of arbitrability
of this grievance is two-fold. First it relies on a
prior decision of
this Board, Davis and Ministry of
Consumer and Commercial Relations,- 780/85, which
counsel contends stands for the proposition that the
Board will take jurisdiction where it is established
that there was detrimental reliance on the part of the
grievor. Alternatively, counsel contends that if we
find no jurisdiction based on the DI case,, the
breach of contract by the Ministry constituted
constructive dismissal of the grievor and that therefore
the Board has jurisdiction to deal with the grievance
under section 18 (2) (cl of the Crown Employees
Collective Barqainina Act.
for the Ministry takes the position that the contracts
in question do not provide a guarantee of 40 hours and
that even if they did, this Board has no jurisdiction to
enforce them. Thus she submits that this grievance is
inarbitrable.
. .
The Board derives its jurisdiction to hear and
determine grievances in one of two ways. The first
source of jurisdiction is the collective aqrerment
itself. Section 19(l) of the Crown Employees Collective
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Bargaining Act provides in part that "Every collective
agreement shall be deemed to provide that in the event
the parties are unable to effect a settlement of any
differences between them arising from the
interpretation, application, administration or alleged
contravention of the agreement . . . . . may be referred for
~arbitration to the Grievance Settlement Board . ..II
Besides this primary source of Board jurisdiction,
section 18 (2) of the Crown Emolovees Collective
Baroainino Act provides that "In addition to any other
rights of grievance under a collective agreement", an
employee may grieve and proceed to arbitration where the
employee is claiming
(a) that his position has been improperly
classified
(b) that he has been appraised contrary to the
governing principles and standards or
(c) that he has been disciplined or dismissed or
suspended from his employment without j.ust cause.
Other than relying on the Qa_vis Case (s_upril) ,
counsel for the union does not contend that the Board's
claim to jurisdiction based on "detrimental reliance"
is referable to either of the above sources. She did
not explain or argue how "detrimental reliance" can
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legitimately form a third source of jurisdiction for the
Board. She merely relied on the Davis Case as standing
for that proposition and urged us to follow it on the
basis that decision is not manifestly wrong.
In &a* the jurisdictional issue is set out at
page 2 of the decision as follows:
l*it was contended that the grievor was a
student employed during his regular vacation
period, and as such he was specifically
excluded from the grievance and arbitration
procedures by the exclusionary definition of
"employee" as contained in section 1 (f) (v) of the Crown Employees Collective Bargaining
&&. **
After reviewing the evidence, the Board at page a
determines that it had jurisdiction. The Board states
as follows:
"At the time of the first contract of
employment, the Ministry was fully aware that
the Grievor was a student in regular
attendance at University who would be
employed during ks summer vacation period.
However, the evidence is undisputed that the
grievor was not employed as a student. At all
relevant times, the Grievor was an emplcyee
within the meaning of the PW&c-.~ _______ --_ Service Act
and the Crown EmDlOYeeS COlleCtLVe b?xgSining
Act because of the terms of employment. As a
result, the Grievor was not exciuded from the
definition of employee as contained in section
1 (f) (V) of the Crown Employees Coiiecti.ve
&qg.aininu AC t , and therefore had access to
both the grievance and arbitration procedures.
Accordingly, this Board has jurisdiction to
determine the merits."
In our view this decision does not stand for the
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proposition put to us by union counsel. The issue there
was whether the grievor was employed as a student and
therefore excluded from the definition of "employee".
On the basis of the facts before it, the Board simply
held that although the grievor was a student he was not
employed as such. Thus the Ministry's basis for
objecting to jurisdiction was not established. While in
Ijavis there is a discussion on detrimental reliance,
that formed no part of the reasons for the Board
assuming jurisdiction. After it had already determined
that the Board had jurisdiction to determine the merits,
the Board had to decide whether it would hold.the
Ministry to a technical construction of the actual words
used in the contract despite anomalous consequences that
followed from such an interpretation, or whether it
would recognise that the Ministry had made an error and
give a practical interpretation which would lead to a
fair and reasonable outcome. Because there was
substantial detrimental reliance on the part of the
grievor, the Board opted for the former~approach.
in summary, we are of the view that detrimentai
reliance does not provide this Board with an independent
source of jurisdiction and that the decision in QaxCs
does not stand for such a proposition. Thus the union's
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first ground for jurisdiction fails.
The Board next turns to the union's alternate
submission based on a constructive dismissal. The
relevant portion of section 18 (2i is as follows:
"18 (2) In addition to any other rights of
grievance under a collective agreement, an employee claiming, . . .
(c) that he has been disciplined or dismissed
or suspended from his employment without just
cause,
may process such matter in accordance with the
grievance procedure provided in the collective
agreement, and failing final determination
under such procedure, the matter may be processed in accordance with the procedure for
final determination applicable under section
19."
It appears that no prior decision of this 8oard has
dealt with the issue of whether the phrase "dismissed"
in section 18 (2) (c) is broad enough to encompass the
common law concept of "constructive dismissal".
iiowever, since. counsel for the Ministry did not argur
otherwise, for the purpose of this decision we will
assume that an allegation of constructive dismissai is
arbitrable pursuant to section 18 (2) (ci of the Act.
What is referable to arbitration under section 18
(2) Cc) of the Act is a claim that an employee "has been
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disciplined or dismissed or suspended from his
employment without just cause." The present grievance
states "I grieve that I am not being paid the correct
salary as set forth according to signed contracts" and
the remedy requested is compensation for the loss
resulting from the alleged wrong payment of salary. In
our view the essence of the grievance is not a discharge
but the issue of appropriate wages. The grievance
cannot in our view be described as a claim that the
grievor "has been dismissed~ without just cause" within
the meaning of section 18 (2) (cl. The collective
agreement has clearly excluded disputes relating to
hours of iyork and wages of unclassified employees from
access to
the grievance and arbitration procedures. In
our view, the union cannot circumvent that clear
statutory exclusion by framing what is in essence a
claim 'for wages as a discharge grievance. In our view
section 18 (2) (cl is intended to provide a dispute
settlement mechanism where the essancz cf the dispute is
whether or not just cause existed for the discharge of a
grievor. This is not such a case. Consequently, we are
of the view that this Board does not derive jurisdiction
from section 18 (2) (ci cf the Act t3 d2ti-rnir.2 tk.2
present grievance. Accordingly, we find the.grievance
to be inarbitrable and the same is harety dismissed.
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Both counsel jointly requested that even if the
Board decides that it had no jurisdiction to hear the
merits of the grievance, it should interpret the
employment contracts in question. Counsel for the
Ministry noted that since the grievor's claim is based
on an employment contract and not a collective
agreement, she will not be barred by the Riqhts of
Labour Act from launching a court action. Both counsel
urged the Board to give its opinion, which in their view
would assist the parties in resolving the dispute
without litigation. In view of this joint request of
counsel the Roard undertook to interpret the contracts
in question for the guidance of the parties.
We begin by reviewing the contracts. The contract
operative from January 1, 1986 to December 31, 1966, is
clear that the grievor will be entitled to a total of 32
hours per week. During the currency of uns contract
the Ministry entered into a second contract to supercede
it. This second contract, effective Febi-uary 10, 15&6
to March 31, 1986, states "normal hours of work not to
exceed/not less than 40 hours per week." The Ministry
did not call any evidence. Thus the Board did not hear
from anyone who was invclved in drafting this
or any subsequent contract.
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It appears to the Board that the standard form
contract, by its use of a slash between the phrases
"not to exceed" and "not less than", intended that one
of the phrases be struck out. This is nor: an unusual
feature in legal documents. However in the contract in
question neither phrase has been struck out, and as a
result that particular ciause is meaningless and not of
assistance in determining the parties' intentions.
Consequently, the Board must look to other provisions in
the contract to ascertain the meaning of the contract.
The prior contract clearly fixes her regular hours as
being 6 l/2 hours on Monday, Tuesday, Wednesday and
Saturday and 6 hours on Sunday for a total of 32 hours'
per week. The contract that followed indicates that the
purpose is to effect a change and the change is
specified as "32 hours to 40 hours per week." Since the
grievor had a guarantee of 32 hours previously and since
the only change indicated is the replacing of "40" for
"32" , logicaliy the result is a guarantee of 40 hours
per week under the new contract. This conclusion is
ccnsistent with a paragraph inserted in the new contract
. stating "Convert present contract of 32 ho;irs per we9k
to 43 hours per week unclassified until March 31, 1986.
Position to be converted to classified staff Aprii 1.
1986."
!3
5\
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Counsel for the Ministry suggested that even if the
a contract set out a regular work week of 40 hours, that
did not constitute a guarantee of 40 hours. She relied
on the Supreme Court of Canada decision in Air-Care Ltd.
v. U.S.W. et al (1974)) 49 D.L.R. (3d) 467. However,
subsequent arbitration awards have held that Air-Care
permits an employer to unilqterally reduce normai or
regular work hours only in "abnormal" situations or on
a temporary basis. For example see, Re E.S.& h.
Robinson (Canada) Ltd., (1976)) 11 L.A.C. (2d) 438
(Swani and Re Ballyciiffe Lodge Ltd., (19841, i4 L.X.C.
(3d) 37 (Adams). On the facts of the case before us,
the reduced hours ,continued for the duration of the new
contract from February 10, 1986 to March 31, 1986 and a
subsequent contract from April 1, 1966 to December 3i.
1986. Indeed the evidence was that the hours of work
remained at 32 after a further contract affective
January 1, 1987 to June 30, '1987 was in place and that
the hours were increased to 40 only after the fiiing of
the grievance.
In the circumstances we cannot conclude that the
reduced hours were implemented "X-I a temporary basis or
to cope with some abnormal situation. On the contrary
it appears that had the grievance nor: been fiied. the
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-grievor's hours could have continued at 32 indefinitely.
In summary, it is this Board's opinion on a plain
reading of the employment contracts in question that
commencing February 10, 1986, the contracts contemplated
that the grievor will be entitled to work 40 hours per
week and that the employer was in breach of these
contracts by continuing her hours at 32.
In conclusion, we find this grievance to be
inarbitrable and the same in hereby dismissed.
Dated this 10th Day of June,1988
Nimal~D$j'jsanayake
Vice-Chairman
7
P. Klynl / Member
&L-GC)
H. Roberts
Member