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HomeMy WebLinkAbout1987-1248.Helstern and McGregor.89-05-08; m; mm ONTmIO EMPLaYESOELACOURONNE ~CROWN EMPLOYEES DEL’ONTARIO GRIEVANCE COMMISSION DE %n&MENT RkGLEMENT DES GRIEFS Under TEE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before TEE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Helstern & McGregor) - and - Grievor The Crown in Right of Ontario (ministry of Community and Social Services) Employer Before: J.W. Samuel6 - Vice-Chairperson I.J. Thomson - Member D. Walkinshaw - Hember APPEARING FOR C.G. Paliare TEE GRIEVOR: Counsel Gowling & Henderson Barristers & Solicitors APPEARING FOR M. Gottesman TEE EMPLOYER: Solicitor Legal Services Branch Ministry of Community BEARING: February 23, 1989 March 20, 1989 and Social Services I- 2 The grievors, Joyce McGregor and Geraldine Helstem, are Switchboard Operators/Receptionists at the Muskoka Centre for developmentally handicapped. They grieve that they are not being paid properly for their hours of work and that this situation has been going on for some time. In order to understand the problem in this case, it is necessary to look back in time almost twenty years. The grievors were hired in 1970 and 1971 as Operator Telephone Switchboard. At the time, the Muskoka Centre was known as the Orillia Ontario Hospital School, or more familiarly as the “Muskoka Unit”, a satellite of the Huronia Regional Centre. In 1972, the Muskoka Centre became an independent institution. These facilities were under the jurisdiction of the Ministry of Health. In 1974, institutions for the developmentally handicapped were transferred to the Ministry of Community and Social Services. At the time of hire, the grievors were each interviewed by Ms. Margaret Duncan, a senior Operator Telephone Switchboard (a member of the bargaining unit), and Mr. P. Skowron, the then Assistant Administrator of the Muskoka Unit. The grievors recall that each of these people told them separately that the grievors would be working 40 hours per week, of which 36 114 hours would be paid at straight time and 3 314 hours would be paid at time and one-half. Ms. Duncan does not recall saying precisely that the grievors would get “overtime” or “time and one-half”, because she knew at the time that, according to senior management at the facility, no one was ever to get overtime pay and the word “overtime” was not in management’s lexicon. However, she thinks that she probably said to the grievors that they would be “compensated”. This was the word used around the facility. The grievors would be “compensated” for the extra 3 314 hours, just as they were “compensated” for working on Sundays or on statutory holidays. It 3 seems clear to us that, in the early 1970s the word “compensated” was a euphemism which meant, among other things, “overtime”. We are satisfied that, whatever words were used by Ms. Duncan and Mr. Skowron, the grievors were given to understand that they would work 40 hours per week, and that they would be paid 36 l/4 hours at straight time and 3 314 hours at time and one-half. This pay structure accorded with the Regulations under the Public Service Act, which have remained unchanged in substance from that time until now. Section 9 of Regulation 881 sets out the hours of work per week to be performed by the various classifications of civil servants. Subsection l(a) provides that, for those classifications found in Schedule 3, the hours per week shall be 36 l/4 hours. Operator Telephone Switchboard is in Schedule 3. Thus, if an Operator Telephone Switchboard works a 40-hour week, 3 314 hours must be paid at overtime rates. This regime applies unless, pursuant to section 9(3)(a) of the Regulation, a position has been designated by the deputy minister, with the approval of the Civil Service Commission, as requiring more hours of work per week than are prescribed in section 9( 1). In the early 197Os, the grievors’ pay stubs did not break down the total amount paid, and the grievors found it impossible to figure out whether they were being paid properly. From time to time in their early years of employment at Muskoka, usually on the occasion of a pay raise, the grievors went to Ms. Duncan to have her check their pay. According to the grievors, Ms. Duncan always figured things out to the penny, satisfying the grievors that they were in fact being paid the overtime rate for 3 314 hours per week. The grievors had in their possession one of Ms. Duncan’s pay stubs from 1968, given to them by Ms. Duncan years ago to demonstrate how to figure out a pay stub, on which Ms. Duncan had broken down the retroactive payment she had received in respect of an increase in pay rates. :- 4 The total supplementary pay was $273.37. It was for 45 weeks. The regular weekly rate had gone up $5.50. In Ms. Duncan’s handwriting, we see on this stub “45 weeks @ $5.50 per week + overtime adiustment” (underlining added). Thus, Ms. Duncan had figured that $247.50 (45 x $5.50) of her retroactive pay was in respect of her regular hours, and the balance of $25.87 was the retroactive adjustment in her overtime pay. At the bottom of her stub, Ms. Duncan had written “36114 hrs plus 3 l/4 hrs O.T.“. At our hearing, she acknowledged that the last bit should have read “3 3/4 hrs O.T.“. Ms. Duncan left her position on the switchboard in 1978, and thereafter the grievors simply assumed that their pay was being calculated properly, including overtime for the extra 3 314 hours per week. About six years ago, the grievors’ pay stubs started showing the breakdown of hours. The stub would show 40 hours at straight time and overtime for any hours over 40 per week. But the grievors assumed that, in fact, they were still getting straight time for only 36 I/4 hours per week and overtime for the extra 3 314 hours. Indeed, at some point, they were assured that this was the case by Mr. Skowron, and by Mr. N. Stringer, who had succeeded Mr. Skowron as the Assistant Administrator. All seemed well until 1986. In November 1986, the grievors’ positions were being reclassified under the Office Administration Group. Their classification became OAG 2. Mr. S. Potter, the Area Administrator of the Ministry’s Human Resources Branch, came to speak with them and, during the course of the conversation, he mentioned that they were paid 40 hours per week at straight time. The grievors said this was incorrect, they were paid 36 l/4 hours straight time and 3 314 hours at time and one-half. Mr. Potter replied that they were paid 40 hours straight time and that they had w received overtime for the 3 3J4 hours. Mr. Potter said he would investigate their situation. I : ~. 5 On November 27, 1986, Joyce McGregor received a letter concerning her reclassification, over the signatures of Mr. Potter and Ms. B. Lloyd, the Manager, Housekeeping and Communications, at the Centre. With respect to the new pay rates, the letter read “The approximate weekly salary rate may be determined by multiplying the hourly rate by 36.25 hours” (underlining added). Ms. McGregor went to Ms. Lloyd to point out that the letter showed her regular hours as 36 lJ4. Ms. Lloyd took the letter back, and instructed the secretary to change “36.25” to “40.00”, which was done. In April 1987, Mr. Potter reported back to the grievors that he was correct-they were paid 40 hours at straight time. They grieved. The Ministry’s response to the grievors’ claim is threefold. Firstly, it is suggested that, in fact, in the mid-1960s the grievors’ positions were designated as requiring 40 hours per week pursuant to the Regulations under the Public Service Act. But we were given no evidence whatsoever to support this suggestion. All that the Ministry could produce was a witness to say that a search of the records had been made unsuccessfully, and some documents which showed that some positions (not the grievors’) had been so designated. This evidence does not prove at all that the grievers’ positions were~ designated as requiring 40 hours per week pursuant to what is now section 9(3)(a) of Regulation 881. In effect, the Ministry’s first argument amounts to no more than saying that, because in practice the grievors have not been paid overtime for the extra 3 314 hours per week, there must have been a designation. “What we are doing must be correct.” We must conclude that there never was a designation, and that the grievors must be treated as is provided in section 9(l)(a) of the Regulation. Their regular weekly hours are 36 l/4, and any extra hours must be paid overtime. : ..~ 6 Secondly, the Ministry argued that the grievance is out of time, because it was filed long after they learned of the problem in November 1986. In our view, this argument is untenable. From the very outset, when Mr. Potter told the grievors that they were being paid 40 hours at straight time, they made it clear that they felt this was wrong. But they gave him time to investigate, as he requested. They filed their grievances shortly after Mr. Potter reported back that there was no change in the Ministry’s position. Thirdly, the Ministry argued that the claims should be defeated by the doctrine of la&es. The grievors’ delay had seriously prejudiced the Ministry because it was now too late to prove that a designation under section 9(3)(a) of the Regulationhad been made. The documents had been lost over time. But this argument too is untenable for two reasons. In the first place, the grievors did not delay. They have prosecuted their claim promptly. They have not sat on their rights. They had every reason to believe they were being treated appropriately, receiving overtime pay for the extra 3 314 hours per week. And immediately they learned otherwise, they acted to protect their rights. In the second place, even if the grievors had delayed, there is simply no excuse for the Ministry not to be able to produce proper proof of a designation under section 9(3)(a) of the Regulation. It is legislated that employees in the grievers’ classification work a regular work week of 36 114 hours. In order to affect this legislated prescription, section 9(3)(a) of Regulation 881 provides for a formal procedure involving a designation by the deputy minister with the approval of the Civil Service Commission. Evidence of this designation ought to be available at all times. This is not the type of evidence that might be eliminated over time. 7- 7 In sum, we find that, for their 40 hours of work per week, throughout their employment at the Centre, the grievors ought to have been paid 36 l/4 hours at straight time and 3 314 hours at time and one- half. With respect to the remedy in this case, we will reserve our jurisdiction to determine the precise compensation owing, in the event that the parties are unable to figure this out themselves. In order to assist the parties in coming to a settlement, we will make the following comments. It seems clear that, on the one hand, the grievors were properly paid for some time, because during the early and mid-1970s Ms. Duncan was always able to calculate out the grievors’ pay stubs to show them that they were in fact receiving their overtime for the 3 314 hours per week. Therefore, it would not be correct to suggest that the grievors are entitled to compensation in respect of their entire period of employment at the Centre. On the other hand, it is clear that they have not been properly paid from at least November 1986. The difficulty lies.in determining when things went wrong. The Union bears the onus of demonstrating the extent of the claim. But the Ministry must give all necessary assistance to enable the Union to discharge this onus. It is the Ministry which keeps the pay records. The grievers may have some pay stubs, but they may not have kept all of them for periods when they had every reason to assume that they were being paid properly. If the Ministry does not have the pay records going back far enough, and the Union is therefore unable to prove precisely when things went wrong for the grievors, it may well be necessary to arbitrarily assume that the error crept in some time in the early 1980s. 8 Finally, the grievers should receive interest on the amounts which were not paid on time up to the date of payment. The interest calculation will have to take into account in some reasonable way the significant fluctuation in general interest rates over the period in question. We suggest that a rate of 8.5% per annum applied to all sums, whenever they were due and payable, would be appropriate. Done at London, Ontario, this 8th day of nay, 1989. I. Thomson, Member