HomeMy WebLinkAbout1990-1306.Finessay et al.91-06-12FMPLOYLS DE I/\ COURONNl DEL’ONT*RIO
CfXl@liSSION DE
SETTLEMENT REGLEMENT
DES GRIEFS c
1306/90, 1307/90, 1308/90,
1309/90, 1667/90, 1676/90
IH TBR HATTRR OF AR ARBITRATIOH
under
TNN CRONN NKPLOYBES COLLECTIVE B&RGAININQ ACT
Before
THE QRIBvaNcB BBTTLBNNNT BOARD
-:
FOR Tlil$
GRIEVOR
OPSW (Finnessey et al)
- an8 .-
The Crown in Right of Ontario
(Ministry of Revenue)
Qrievor
Employer
B. Kirkwood vice-chairperson.
W. Shipman. Member
R. Scott Kember
D. Eady
Counsel Gowling, Strathy & Henderson
Barristers & Solictors
C. Slater
Senior Counsel
Mhagm&nt Board of Cabinet
Human Resources SeCretariat
HEARING December 10, 1990
_ .r
..,
I';lge 2
DECISION
. . . .-
The qrievors were seeking reclassification and
remuneration for periods of time ending approximately 11
years before the filing of the grievances in July 1990.
Each grievor was hired at the Oshawa branch as a
Tax Auditor 1 in the Retail Sales Department and was promoted
to Tax Auditor 2. The grievers allege that while they were
Tax Auditor Is, prior to their promotions to Tax Auditor 2,
they were performing the functions of a Tax Auditor 2. They
claim loss of salary and including all increments and
interest. There is no'substantial difference between the
grievances with the exception of the dates of hire and the
dates of promotion.
The periods in question relating to each of the
grievors is as follows:
Finnessey - September 13, 1976 to November 1, 1979
Gordon - April 17, 1972 to December 2, 1974
Laframboise - August 13, 1973 to August 31, 1979
Lemay -Sept. 23, 1974; to Nov. 1, 1979;
Molloy - July 31, 1972 to May 1, 1976
Samson - SePtember 12, 1974 to July 15, 1979
The Ministry's counsel objected to the
arbitrability of the grievances at the outset of the hearing
and argued that the grievances ought to be dismissed for
their untimely filing and unreasonable delay. The Ministry's
counsel submitted that although the Board had jurisdiction to
hear-a classification grievance that related to' periods of
time in the past,' he submitted that the unreasonable delay in
filing the grievances prejudiced the Ministry in a manner
which could not be overcome in any way. He submitted that
many of the documents which the Ministry would require to
ii, Page 3
prepare its case had been destroyed in the normal course of
business. He further submitted that even if l.aches did not
apply there was no basis to depart from the usual practice of
the Grievance Settlement Board that limits the remedy in
continuing grievances to 20 days prior to filing the
grievance.
The Union's counsel submitted that the grievors did
not learn of their right-to grieve until July 1990 and
therefore by the application of Divisional Court's decision
in The Queen in right of Ontario as represented ~by the
Ministry of Correctional Services v. Ontario Public Service
Employees Union and the Grievance Settlement Board 74 O.R.
(2d) 700, in which it reviewed OPSEUIPierre) and The Crown in
right of Ontario (Ministry of Correctional Services G.S.B.
0492/86 (Verity) (the Veronica Pierre decisions) the Court
held that the Board was correct in its interpretation of the
collective agreement that the time for filing the grievor's
individual grievance, instituted under article 27.1.2. only
began to run from the time that the grievor became aware that
her rights were violated, the grievances were timely.
He submitted that in order for the Ministry to
succeed it must show that it was prevented from presenting
the case of its merits. He argued that due to the nature of
the evidence required, the Ministry was not prejudiced. He
further submitted that it was not appropriate that the scope
of the remedy be dealt with at the preliminary stage.
The evidence on this preliminary matter shows that
there were ftindamental changes made in the department since
the periods of time in issue. It also explains how the
grievers became aware that they may have a basis for a
grievance. The particulars are as follows:
Page 4 i.
The assignment of work to tax auditors has
undergone three major changes since 1973. :
From 1973 to 1983, each taxpayer was categorized
into levels ranging from A to G, in accordance with the
volume of sales reported, the amount of taxes remitted and
any prior assessment of taxes. A separate category "2" was
established for the largest 500 accounts, and included
accounts such as the .CNR.~
The 2 category washandled by head office personnel
and Toronto office supervisors. Category G was the category
for the smallest refunds and each prior category involved
larger amounts. In Oshawa, Tax Auditor 1s handled the
smaller audits that fell within levels D to G; Tax Auditor 2s
handled the larger accounts that fell within levels B to C,
and the Tax Auditor 3s 'handled the largest audits of level A
and some did work on Z files. In addition, the Tax Auditor 1
may assist the Tax Auditor 2 for 10 to 20% of the time and
the Tax Auditor 2 may assist the Tax Auditor 3 for 10 to 20%
of the time depending upon the Tax Auditor's location.
In 1983, the method of distinguishing the audits
changed drastically. The basis for categorising audits
changed to the determination of the volume of sales reported
and the amount of sales remitted and no longer considered any
prior assessment of taxes.
The largest 1000 accounts .were grouped into the
Industrial Service Unit (ISU) and the rerr,aining taxpayers
were segmented into larger B and C categories. Mr. Waterman,
the Regional Manager Audit of the Eastern Region testified
that the prior categories of A to G could not be equated to
the new B and C category.
The ISU work which included the prior A category
required work at,a Tax Auditor 3 level and new tax auditors .r had to be hired. The Ministry hired Tax Auditor 1, Tax
Auditor 2 and Tax Auditor 3s to work, on the ISU and
classified each persons level on the basis of the
individual's education, even though, all the tax auditors
working at this level were doing Tax Auditor 3 functions.
The original Tax Auditor Is, 2s and Tax Auditor 3s
remained in the field office. The Tax Auditor 2s did C
audits mostly and were involved in small refunds and the Tax
Auditor 3s in the field and some of the Tax Auditor 3s in the
ISU did level B work.
Between 1985 and 1986, the ISU disappeared and the
tax auditors returned to the field office. On October 1
1986, the tax auditors were reclassified and taken out of the
Tax Auditor series and placed into the Financial Officer
series. The Tax Auditor 2s became Financial Officer 29, the
Tax Auditor 3s, who did not have accounting designation
became Financial Officer 4s and the Tax Auditor 3s who had
accounting designation became Financial Officer 5s. The
Financial Officer 5s are now assigned the A level audits and
they co-ordinate and plan the audits, and they are assisted
by the Financial Officer 4s who also do the B level audits,
and the Financial Officer 2 does the C level audit.
In 1986 the Ministry began to receive grievances
from the Tax Auditor 1s and the TA2s who had been in the ISU
alleging that regardless of each one's education,, the work
which they had been performing had been at the-Tax Auditor3
level and therefore they ought to be compensated accordingly
for the period between 1983 and 1986. At stage 2 in the
grievance procedure the Ministry recognized that the work was
done at a higher~ classification and they settled' the
grievances on the basis that the Tax Auditor 1 and Tax
Page 6
,‘.
Auditor 2 in the ISU were paid one year at their designated
level as it was,considered a training periodl after which
they were paid at a Tax Auditor 2 level. In the field, the
Tax Auditor Is were paid as a Tax Auditor 1 for a period of 6
months for their training period, after which they were
elevated to the Tax Auditor 2 category of payment. In order
to speed up the process and to promote good morale, the
director offered the same payments to any of its staff who
was in a similar position, but had not grieved. In the
Ministry's view, as the criteria for the different levels of
audit had changed and could not be compared to the earlier
categories, the only criteria for this payment was based on
the level of tax auditor the person was and where he or she
had been placed.
The grievors were all tax auditors who had worked
in the field office. Mr. Malloy testified for the union. He
stated that on or about July 1990, he learned that two other
Tax Auditors were.receiving back pay for services rendered as
a Tax Auditor 2 while they were holding the position of Tax
Auditor 1, although he was not aware of the time period for
which they.were being paid. He testified that he performed
work as a Tax Auditor 2 while he was a Tax Auditor 1, but
that he did not make any inquiries about his classification
as he did not include the union as part of his life. He
merely did his work. Upon learning of these payments 'to two
auditors, he became aware that he may have an entitlement t0
reclassification for an earlier period of time, and he filed
his grievance that is before this Board.
Although the Veronica Pierre decisions (supra) may
be interpreted to entitle the grievor to institute and
process a claim under article 27.1.2 from the time he becomes
aware of his rights, that right to grieve does not preclude a
consideration of the events.
Page 7
i,
In a classification grievance the nature of the
work performed a@ the degree to which the vari:,us tasks are
performed are critical to determining whether the person is
placed in the appropriate classification. The nature of the
work performed by tax auditors relies on the nature of the
taxpayer and the size of the audit required as matched to
the Tax Auditor's expertise: It is also dependent upon the
amount of time that each auditor spent on each file and is
dependent upon the degree of supervision required. In order
to determine whether the grievor was performing the work of
his or her classification, or whether it was actually work of
tax auditors of a higher level is dependent,by the nature of
the work to a large degree on documentation.
The union urged the Board to consider the testimony
of its witness, and, as in the usual course, weigh each one's
testimony
We do not find that it would be possible to
properly consider the work performed in this way, when the
substantiation of the nature of the work performed is So
dependent upon documentation. Although a grievor may be able
to recall some of the files that he or she worked on, unless
there is documentation, it would be beyond the abilities of
an ordinary person tom expect that a grievor could remember
with any degree of precision the nature of 40 to 50 audits
that were the average performed each year by each of the
grievors from 1973 to 1976. Even Mr. Malloy who testified on
behalf of the union testified that although he was aware that
he did Tax Auditor 2 work while he was a Tax Auditor 1, and
could recall some of the time which he spent on larger files,
he would find it difficult to estimate the time that he spent
on A level audits.'
The Ministry'!3 policy is to reta~in only the last
audit; however, the Ministry attempted to find the amount Of
..i . Page x
time that the auditors spent on their files, but found that
all the audit files have been purged. In addition the time
sheets which the auditors had to hand in on a monthly basis,
and records of their expenses, which may have been of
assistance had been destroyed in accordance with the
Ministry's policy to destroy these records after two to three
years. Therefore the Ministry would not now be in a position
to determine which files the grievors worked on and what work
did they do.
As found in Clements and The Crown in Right of
Ontario, Liquor Control Board of Ontario G.S.B. 112/89
(Pritchard) a grievance may be dismissed where there is
substantial prejudice going to the merits of the case through
delay. The premise upon which this principle is founded is
that an arbitration hearing must base its decision on a fair
hearing. As stated in Re Shipping Federation of Canada Inc.
(1967) 16 L.A.C. 174 (Weatherill):
It is'our opinion that a board of arbitration ought
not to refuse to hear the merits of a grievance
except where it would be clearly improper to
proceed. Certainly the grievor was entitled to a
fair hearing of his case. A 'fair hearing' however
must be fair to both sides.~ Because of the union's
delay in sproceeding with this matter, a fair
hearing has become impossible, since the employer
has been .substantially prejudiced in the
presentation of its case. It is clear to us that
in these circumstances the matter is not
arbitrable. We would emphasize that our
determination on this point is no mere
'technicality': the requirement of a fair ,hearing
lies at the very root of the notice of justice and it is precisely this which the union, by its delay,
has denied both to the grievor and to the
employer." ((1970) 20 L.A.Cc. 27 (Weatherill) at
Page 30.)
We find that although we have jurisdiction to hear ~. the case, the prejudice to the Ministry cannot-be overcome in
anyway. There was no bad faith on the part of the Ministry
in destroying its files, as they were done in the normal
course and without any notice that the files may be needed.
On the other hand, the grievers allege that they
did work of another classification; however they did nothing.
For example, it was. only when Mr. Malloy when he learned of
payments being made which were not even shown to be relating
to the same time in issue in this grievance, that he looked
into his rights. He knew when he was a Tax Auditor 1 that he
was doing work of a Tax Auditor 2 while he was a Tax Auditor
1, and he was a bargaining unit member and therefore had the
expertise of the union at his hand, but he chose of his own
accord, as stated in his testimony to ignore the union, "the
union was not part of his life." There it was his own
failure to look into this matter at the relevant time, that
did irot bring the issue to a head. It is contrary to the
philosophy in article 27.1.1 to encourage a speedy resolution
to matters in dispute to wait until approximately 11 years
after any entitlement allegedly occurred to institute a
grievance.
The unavailability of evidence does not of itself
prevent the litigation of an issue; but where the grievors
have effectively sat on their rights by performing the
functions of another classification, and have not used the
resources of the union which was at their disposal, they have
effectively turned a blind eye to the situation, which then
lead-the Ministry to detrimentally rely on their acquiescence
and silence. Since the periods in question, the Ministry has
made fundamental changes to the system without any knowledge
that work assignment- and job ol~ass~ifications were in issue.
The consiuerations of the interests and the damages
to both parties imust be balanced. In this case through no
fault of its own, the Ministry is now unable to prepare its
case. The loss of its right to be fully represented and to
be able to investigate the allegations made by the grievors
fully, has been irretrievably lost. Accordingly it would be
impossible to have a fair hearing at this time. The
fundamental right of both parties toga fair hearing must be
preserved.
Therefore we have concluded on the basis oft the
evidence before us and on the submissions of counsel that we
are dismissing the grievances without hearing further
evidence. we also acknowledged that the Ministry recognized
that Mr. Lemay assisted at some time on the CN case, but
again. there was no evidence that sufficient evidence is
available to resolve his grievance. Accordingly, there is no
basis upon- which td sever Mr. Lemay's grievance from the
others. ‘i
Therefore the grievances are dismissed.
Dated at Toronto, this IZtMay of June ., 1991.
B. A. Kirkwood, Vicechairperson
R. Scott, Employer Nominee