HomeMy WebLinkAbout1990-2426.Hammond et al.96-03-11 Decision\ ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. M5G
1Z8 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO). M5G 128 TELEPHONE/TELEPHONE: (4 16) 326-1388 : (4 16) 326-1396 GSB # 2426/90, 2723/91 OPSEU # 91B161 92A139 IN THE MATTER OF
AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Hammond/Maier) -and -Grievor The Crown in Right of Ontario (Ministry
of the Solicitor General & Correctional Services) Employer BEFORE : H. Finley H. O'Regan R. Scott Vice-Chairperson Member Member FOR THE D. Wright GRIEVOR Counsel Ryder, Wright, Blair
& Doyle Barristers & Solicitors FOR THE J. Benedict EMPLOYER Manager, Staff Relations & Compensation Correctional Services Ministry of the Solicitor General & HEARING December 7, 1995
D E C I S I O N On September 9, 1992, the issue of the application of the Williams/Barber decision for a large number of the Correctional Officers in the Ministry of Correctional Services
was placed before this Panel of the Grievance Settlement Board. The initial Williams/Barber grievances were filed in 1990 and the decision in that matter was issued in February 1991.
The Employer applied for judicial review in November 1991, and that application was dismissed on March 18, 1992. There were two distinct parts to the Williams/Barber decision. The first
declared that ... the basic scheme established in the collective agreement and its wage rates ought to be observed. The parties negotiated a second level C01 rate. This demonstrates
the intention to reward greater experience with greater pay. The second part related to retroactivity, and in the Williams/Barber decision, retroactivity was spelled out as follows for
those individuals: ... as of the commencement of the first contract of service which began after he had worked fulltime for the equivalent of one full year for the Ministry of Correctional
Services as a C01 The retroactivity granted was full retroactivity. The grievances of C02 Hammond and C02 Maier were filed December 20,1990 and January 4, 1992, respectively. Ms. Hammond
grieved that she was “not being paid at the appropriate rate”, while Ms. Maier grieved that she was “being improperly paid”. Both asked to be paid at the “appropriate rate of pay ...”.
These grievances had been held in abeyance pending the judicial review of Williams/Barber. On June 18, 1992, the Union filed a grievance claiming that the Employer “has failed to pay
the appropriate merit increase for Correctional Officers” and asking that the “Employer pay the appropriate merit increase to all affected Correctional Officers as per the Williams/Barber
[sic], GSB # 1448/90. 1449/90 and 1466/90 with full retroactivity back to the date when Williams/Barber first became aware of the 1
discrepancy”. On July 17, 1992, the Union grieved that “the Ministry [was] not paying the increment as per the C01 rate to unclassified employees” in three institutions, and asked that
“management apply the principal [sic] of the Barber award to the above noted employees retro to start date of each employee”. On August 4, 1992, prior to the initial hearing date, the
Ministry of Corrections, announced that as of July 1, 1992, it was instituting a “merit increase policy for unclassified staff members” which applied “to any staff member in the unclassified
service effective that date.” That policy responded to the Williams/Barber decision for those who were unclassified as of July 1, 1992 but it did not provide for any retroactive wage
adjustments or adjustments to current rates for Correctional Officer 2s affected in the past by the Ministry’s Correctional Officer 1 merit increase policy. Following this, individual
grievances were filed by many Correctional Officers who believed that in the implementation of the Employer’s “Merit Increase Policy for Unclassified Staff’, they had been denied the
compensation which should have been accorded them as a result of the Williams/Barber award. At the time of the hearing, in September, 1992, this Panel was informed that 800 grievances
had been filed with respect to this issue and that more were expected. The parties agreed that the grievances should be consolidated, that is, that they should come under the jurisdiction
of this Panel. The number of grievances rose to approximately twelve hundred. Counsel at that time, and there has since been a change of Counsel for both parties, perceived correctly
that the determination of the retroactivity issue could provide the resolution to a large number of the grievances. They therefore agreed to address that issue initially, and following
the opening statements of the parties, the Panel informed Counsel that it was not prepared to hold separate hearings to determine the subjective awareness of each individual grievor
in order to establish an individually appropriate retroactivity date. The Panel then instructed Counsel to return with a reasonable pIan for managing this large number of grievances.
The parties determined that placing certain hypothetical questions before the Panel in the context of the arbitral jurisprudence would assist them in grouping the grievors, thereby managing
the grievances in an efficient and sensible way. The Panel responded verbally to the questions put to it and followed with a written decision which was issued on March 3, 1994. The decision
itself was set out at pages 18 and 19: 2
In arriving at its decision, the Board considered the jurisprudence cited above and concluded that the “time when” or the pivotal point in time for the commencement of retroactive payments,
should be the time at which it was confirmed to the Employer, and therefore the Employer was fully aware, that it must provide compensation (not retroactivity) in line with Wllllams/Barber.
No explanation was offered by the Employer for its choice of July 1, 1992 as the commencement date and it appears to have been selected quite apart from the grievance and arbitral processes.
Although most of the grievances were filed subsequent to this date, a number were filed prior to it and for those Grievors, the 20-day rule would apply, that is, the retroactivity date
for grievors will be March 18, 1992, or 20 days prior to the filing of their specific grievances, which ever is earlier. In selecting this option, the Board has rejected the concept
of “full retroactivity”, a remedy provided for in exceptional circumstances, and has also rejected the concept of employee awareness as an appropriate route in this particular situation.
Following this last option would result in years of hearings to determine the point in time of the subjective awareness of each single Grievor, and there are more than 800 individual
Grievors. In arriving at its decision, the Board strove to strike a reasonable and practical balance within the context of the Grievance Settlement Board jurisprudence. In summary then,
retroactivity should date from March 18, 1992, for Grievors who filed on or subsequent to this date and the 20-day rule should be applied to those who filed prior to March 18, 1992.
Interest is to be payable at the Bank of Canada prime rate on March 18, 1992, that is 7.82%. The Board will remain seized in the event that the parties require its assistance in implementing
this award. The decision was submitted by the Union to the Divisional Court for judicial review on June 17, 1994. The application asked that the order of the Grievance Settlement Board
be quashed on the following grounds: a) The Board made a patently erroneous determination of the issue governing the period of time the grievors (over 800) could recover damages for
the Employer’s error in the calculation of their pay. b) The Board’s decision on the period of time the grievors could recover damages had the effect of a denial of natural justice in
that it determined the grievors’ rights without affording them an opportunity to assert the merits of their individual claims. C) The Board’s decision is patently unreasonable in that
it cannot be supported on any rational basis but rather is based on the single ground that consideration of the merits of individual grievors would lead to a lengthy hearing. d) Such
further and other grounds as counsel may advise and this Honourable Court may permit. The matter came on before the Divisional Court on March 24, 1995, and the Court’s decision was issued
the same day. It was as follows: The application is dismissed. The parties jointly submitted four questions to the Board. The Board unanimously answered these. We do not consider that
the decision was patently 3
unreasonable. On April 20, 1992, twelve Correctional Officers at the Sault Ste, Marie Jail filed individual grievances alleging that the employer did not pay them properly under the
collective agreement, i.e. Level 2 of the C01 pay scale (CO1-Level2) after 1 year. They sought retroactive adjustments in pay, benefits and credits with interest. The matter was heard
by a different Panel of the Grievance Settlement Board, although the Vice-Chair was the same. The Union’s position with respect to the grievances of this group of Grievors was referred
to in the decision: It was emphasized by Mr. Wright that the grievances of this group of 12 Grievors have, at the insistence of the Union, remained separate and apart from H ond/Maier
and the Employer did not, as it could have done requested a consolidation order from the Grievance Settlement Board. [Page 2 I] The Board found that These grievances have remained independent
of the Hammond/Maier group of grievances since the time they were filed and the Employer, when unable to negotiate a consolidation did not apply for an order to do so. [Page 22] The
Board accepted the ruling in 2 of the Correctional Officer ] Classification. It agree[d] with the Union’s argument that does not establish principles of retroactivity. [Page 231 as the
standard to be applied with respect to the application of Level responded to a particular set of circumstances and that the ruling in that award In the result, the Board came to the
following conclusion: In the case at hand the Employer was put on notice on January 18, 1992, when Mr. Bishop filed the grievance on behalf of the twelve Grievors. The Board has concluded
that it is appropriate for the Grievors to receive retroactivity in relation to that date. In other words, they are to be moved to Level 2 of the Correctional Officer 1 Classification
20 days prior to January 18, 1992, and the Board so orders. The result of this is that they will be in Level 2 at the time they moved to the Correctional Officer 2 Classification and
this is to be reflected in the adjustment to their pay. The Grievors are to receive interest at 7% compounded annually. [Page 231 4
In September, 1995, the Ministry of the Solicitor General and Correctional Services and the Ontario Public Service Employees Union entered into the following agreement in order to implement
the decision of the Board set out above. The Memorandum of Understanding reads as follows: MEMORANDUM OF UNDERSTANDING BETWEEN: THE ONTARIO PUBLIC SERVICE EMPLOYEES UNION (The Union)
AND THE MINISTRY OF THE SOLICITOR GENERAL AND CORRECTIONAL SERVICES (The Employe/rMinistry) In order to implement the terms of the decision of the Grievance Settlement Board dated March
3, 1994 in GSB File No. 2436/90 and 2723/91 (Hammond/Maier), the Union and the Ministry agree to undertake the following terms and conditions: 1. The terms of this understanding will
apply to those grievances which have been consolidated with the Hammond/Maier grievances. A list of the grievances which have been so consolidated is attached to this Memorandum of Understanding
as Appendix A 2. The grievors who fulfill the criteria of paragraph 4 below shall receive a merit increase and their grievance will be settled pursuant to the settlement identified as
Appendix B 3. The settlement attached as Appendix B will be the full and final settlement of those grievances noted in Appendix A that satisfy the conditions set out in paragraph 4.
4. Retroactivity respecting a merit increase (ie. from C01 level to C01 level 2) will date from March 18, 1992 for unclassified grievors who filed their grievance on or subsequent to
this date and who have completed 2080 hours of work as an unclassified correctional officer. The 20-day rule will be applied to those unclassified grievors who filed their grievance
prior to March 18, 1992. 5
Any grievor entitled to a retroactive merit increase pursuant to this paragraph will also be entitled to have any merit increases which have occurred subsequent to March 18, 1992, or
20 days prior to the date of grievance whichever is earlier, adjusted to reflect the retroactivity awarded by this paragraph. It is understood that the terms of the Social Contract respecting
salary increases shall be applicable. 5. Interest payable at the Bank of Canada prime rate of March 1 8 1992, that is 7.82%, and in accordance with the Hallowell House Formula will be
applied. 6. Payment of all monies owing will be made within ninety (90) days of the signing of the settlement. Appendix B will be forwarded to the respective correctional institutions
with a list of grievances identified for that institution pursuant to paragraph 1 and I 7. Appendix A 8. Local management will identify the grievors to whom Appendix B will apply and
with the assistance of the local representative, as identified by OPSEU, offer the settlement to the grievor for signature. 9. Grievances not captured by the criteria identified in this
memorandum of understanding will be further discussed by the parties. If either party finds this unsatisfactory the matter of unresolved grievances can be taken back before the panel
in Hammon/Maier. 10. The terms of this understanding are without prejudice and without precedent, to either party. For the Union -"signed" For the Employer "signed" Date Date September
22, 1995 6
Appendix B, the settlement document for the individual grievors is as follows: Memorandum of Settlement IN THE MATTER OF THE GRIEVANCE OF Name , Classification/Work Location G.S.B. FILE
Date and Subject of Grievance Between ONTARIO PUBLIC SERVICE EMPLOYEES UNION ( The Union) THE CROWN IN RIGHT OF ONTARIO (Ministry of Correctional Services) (The Ministry) -ANDThe parties
agree to a full and final settlement of the above-noted grievance without precedent and without prejudice to any future and/or similar matter of the following terms: 1. Management agrees
to award the grievor a merit increase from C0 1 level to C0 2 level 2, effective 2. Management agrees to pay the grievor any retroactive pay adjustments (because of subsequent pay changes)
to the grievor’s pay rate resulting from the merit increase identified in Paragraph 1, less any statutory deductions, including interest. 3. The Union and the grievor agree to withdraw
the above-noted grievance. Dated this day of 19-. For the Grievor For the Union For the Ministry 7
The Union requested that a hearing be convened to deal with certain grievances that remained unresolved and presented two main groups of cases to the Board. (The pay-rate scheme is found
in Appendix A.) The first involved those Grievors who were classified but who were not at Level 3 of the C02 pay Scale (C02-Level3) as of March 18,1992. (The C02 pay scale has 3 levels,
while the C01 pay scale has 2 levels.) This issue encompasses three groups: (a) Those who were classified but doing underfill as of March 18, 1992 (or 20 days prior to) training; Those
who completed training and were being paid at C02 Level 1 because they did not get a merit increase; (b) (C) Those who were at Level 2 of the C02 pay scale (C02-Level2) on the date of
the grievance because they finished their year of underfill and had received the merit increase. Mr. Wright explained that for each of the three subsets, there is an ongoing loss as
of March 18, 1992, as a result of their not having a merit increase when they were unclassified. Correctional Officers in each of the three categories are earning a lower rate of pay
as of March 18, 1992, than they would have earned if the Ministry had given the merit increase after one year as an unclassified Correctional Officer. With this group it is the Union’s
position that the terms of the Hammond/Maier award require the employer to adjust the pay rates retroactive to March 18,1992 or 20 days prior, if earlier, to eliminate ongoing loss.
The Union accepts that the Hammon/Maier decision means that they are not entitled to be made whole, that is, retroactivity back to their anniversary date. However, Mr. Wright explained,
they continue to suffer a loss, even though they are captured by the terms of the award. The Union asks that the Board enforce its earlier award and order the Employer to comply. This
request is not, Mr. Wright explained, a request to change the award but rather, a request to deal with the ongoing loss. 8
The other group of Correctional Officers is made up of those who are at Level 3 of the pay scale as of March 18, 1992, and therefore were classified as of that date. They did not at
that date have an ongoing loss. Their loss was entirely in the past. It took a year longer for them to get to Level 3 of the C02 pay scale (CO2-. For this group, the Union is asking
the Board to reconsider its award and is requesting that a “sum remedy” be awarded. Counsel for the Union proposed that persons at Level 3 of the C02 pay scale be compensated with the
difference between C02-Level2 pay and C02-Level 3 pay for a period of one year, with interest from March 18, 1992. Such a solution, Mr. Wright submitted, would not require individual
hearings, and it would provide some remedy to those who have suffered a loss, but while maintaining a reasonable and practical balance. The Union takes the position that the Panel is
not funcfus, that is, without jurisdiction, and that we still have jurisdiction to award a remedy. Jim Benedict, appearing for the Ministry of the Solicitor General and Correctional
Services, took the position that the Panel was functus, that is, that we did not have jurisdiction to hear the matter. He submitted that the parties agreed to handle the Hammond/Maier
et al grievances in a certain way based on the earlier decision and now, when the Union has seen the impact of that decision and the agreement, it wants to go back and redo it. They
cannot, he argued, do that. The situations which occurred as a result of the implementation are not relevant, he maintained. 9
ARGUMENT Mr. Wright and Mr. Benedict agreed that no evidence would be called and that Mr. Wright would present examples relevant to the two issues as part of his argument. Mr. Wright
presented a more detailed description of the issues. The first group involves those who are (a) classified, and (b) below the top of the C02 pay scale. For this group, the Hammond/Maier
decision does grant a remedy, he stated. Our ruling stated that the Board would not go back and look at the full employment history and determine a subjective point in time as in OPSEU
(Veronica Pierre) and The Crown in Right of Ontario (Ministry of CorrectionaL Services), ( 1988) GSB # 492/86 (Verity); The Panel’s award applied a standard retroactivity date of March
18, 1992, or twenty days prior to the filling of the grievance. In that award, all that we did was to deal with the retroactivity date. Mr. Wright argued that the concept of retroactivity
implies a loss. Further, it is question of how far retroactivity will be addressed, in that each group of Grievors continues to suffer a loss in terms of rate of pay relating to March
18, 1992, or the filing date of the grievance, and they are entitled to have that loss remedied back to the retroactivity date, but not earlier. It is true, Mr. Wright stated, that the
central question of Williams/Barber and cases that follow, is what pay treatment an employee is entitled to during the period he or she was unclassified. However, the nature of pay scales
is such, that a failure by the Ministry to properly pay people when unclassified, carries over to their classified service. That flows, from the fact that the top level C01 is higher
than Level 1 of the C02 pay scale (C02-Level l), and, from the fact that Article 5.1.2, infra, of the Collective Agreement states that An employee who is promoted shall receive that
rate of pay in the salary range of the new classification which is the next higher to his present rate of pay, except that: where such a change results in an increase of less than three
percent (3%), he shall receive the next higher salary rate again, which amount will be considered as a one-step increase; a promotional increase shall not result in the employee’s new
salary range exceeding the maximum of the new salary range except where permitted by salary note. 10
A Correctional Officer who is assigned to a proper level when he/she becomes paid as a Correctional Officer 2, moves to Level 2 of the C02 pay scale (C02-Level2). That Correctional Officer
never has to go Level 1 of the C02 pay scale (C02-Level 1). The result is that a Correctional Officer in that situation moves to Level 3 of the C02 pay scale (C02-Level 3), one year
sooner. In essence, there are two effects linked to the failure to grant a merit increase to unclassified Correctional Officers. The first effect is that for the balance of time the
Correctional Officer is unclassified he/she is improperly paid because that person, while unclassified, is paid at Level 1 of the C01 pay scale (COl-Level l), as opposed to the Level
2 of the C01 pay scale (COl-Level2). The second effect is that there is an impact on their pay rates after they become classified. There is, in consequence, a year’s delay. For example,
the Correctional Officer who has not received a merit increase when he/she was unclassified, wins a job competition and becomes classified. During the first year he/she is classified,
that individual is doing training/underfill. He or she is moved to the C02 pay scale, but since he/she received no merit increase, that employee moves to Level 1 of the C02 pay scale
(C02-Level 1). After a year, during his/her third year of service, that employee receives a merit increase and goes to Level 2 of the C02 pay scale (CO2-Level2). Finally, at the end
of the third year, he/she goes to Level 3 of the C02 pay scale (CO2Level3). A Correctional Officer in that situation must have worked three years before attaining Level 3 of the C02
pay scale (C02-Level3). Mr. Wright contrasted that with the situation of a Correctional Officer who receives a merit increase when unclassified. After winning the competition, that person
becomes a classified Correctional Officer undergoing training on an underfill basis and he/she is paid at Level 2 of the C01 pay scale (CO1-Level2). After completing underfill, he/she
moves to Level 2 of the C02 pay scale (C0 2-Level 2) because of the 3% rule (Article 5.1.2), and therefore, during that person’s third year, he/she is at Level 3 of the C02 pay scale
(C02-Level2). At the end of the second year, that Correctional Officer moves to Level 3 of the C02 pay scale (C02-Level3 ). For that individual, it has taken only two years to get to
Level 3 (C02-Level3). In each of those years, 11
the Correctional Officer who receives the merit increase, receives more pay that the person who does not and the loss to the individual in the first example, is the result of how that
person was paid during his or her time as an unclassified employee. The treatment as a classified Correctional Officer is determined by the treatment as an unclassified Correctional
Officer and the continuing loss as a classified Correctional Officer stems from the Ministry’s not having paid that employee at the Level 2 of the C01 rate during the time he or she
was unclassified. Mr. Wright set out four examples to help the Board understand how the losses operate. Employee A February 1991 March 18,1992 Post March 18, 1992 June 1992 July 1, 1992
June 1993 Date Underfill removed Date of hire and Appointment to the Unclassified Service Retroactivity date of Hammond/Maier Grievance filed Date of Appointment to the Classified service,
underfill Effective date of merit increase for unclassified Correctional Officers Implementation of Social Contract Once the settlement under Hammond/Maier is implemented and the retroactivity
is applied, Employee A, because he/she was unclassified as of March 18,1992, gets paid from March 18, 1992 at Level 2 of the C01 rate (CO1-Level2). That rate continues to apply after/from
June 1992 to June 1993, when the underfill is complete. In June 1993, Employee A moves to Level 2 of the C02 pay scale (CO2-Level2) and stays there because of the Social Contract Employee
B February 1990 September 199 1 March 18, 1992 Post March 18, 1992 July 1, 1992 September 1992 June 1993 Date of Hire and Appointment to the Unclassified Service Date of Appointment
to the Classified Service (Underfill) Retroactivity date of Hammond/Maier Grievance filed Effective date of merit increase for unclassified Correctional Officers Date of removal of underfill;
Implementation of the Social Contract Employee B, because he/she was classified as of March 18,1992, is paid at Level 1 of the 12
C01 pay scale (CO1-Level 1) from February 1990 to September 1992 at which time Employee B moves from Level 1 of the C01 pay scale (COl-Level2) to Level 1 of the C02 pay scale (CO2-Levell)
and stays there because of the Social Contract. Employee C September 1989 November 1990 May 199 1 January 4, 1992 March 18, 1992 May 1992 July 1, 1992 May 1993 June 1993 Date of Hire
and Appointment to the Unclassified Service Date of Appointment to the Classified Service (Underfill) Date of removal of underfill Date of grievance (Retroactivity is 20 days prior)
Retroactivity date of, Hammond/Maier which does not apply here Move to Level 2 of C02 pay scale due to anniversary date Effective date of merit increase for unclassified Correctional
Officers Move to Level 3 of C02 pay scale due to anniversary date Implementation of the Social Contract Employee C is paid at Level 1 the C01 pay scale (COI-Level 1) from September 1989,
through his/her appointment to the classified service and underfill until the underfill is removed in May 1991 at which point he/she goes to Level 1 of the C02 pay scale (C02-Level 1)
and remains there until May 1992 (anniversary date), when Employee C moves to Level 2 of the C02 pay scale (C02-Level2). Because this employee’s anniversary date occurs one month before
the implementation of the Social Contract and therefore he/she was able to go to Level 3 of the C02 pay scale (C02-Level3) in May 1993, a month before the implementation of the Social
Contract. If Employee C had received the merit increase when he/she was an unclassified employee, he/she would have been situated at Level 2 of the C02 pay scale (C02-Level2) in May
199 1, and then at Level 3 of the C02 pay scale in May 1992, when in fact, because he/she did not receive the merit increase, he or she fails to reach Level 3 of the C02 pay scale (C02-Level
3) until May 1993, a year’s delay. Employee D September 1987 October 1988 January 1989 Underfill removed November 1990 December 1990 March 18, 1992 Date of Hire and Appointment to the
Unclassified Service Appointment to Classified Service (Underfill) Moved to Level 2 of C02 pay scale (C02-Level2) Date grievance filed (Retroactivity is 20 days prior) Retroactivity
date of Hammond/Maier which does not apply here 13
July 1, 1992 June 1993 Effective date of merit increase for unclassified Correctional Officers Implementation of the Social Contract When Employee D’s underfill was removed, he/she moved
to Level 1 of the C02 pay scale (C02-Level 1) because he/she had not received a merit increase. If Employee D had received a merit increase as an unclassified employee, he/she would
have been at Level 3 of the C02 pay scale (C02-Level3), rather than Level 2 (C02-Level2) at the time of the grievance, in December 1990. Mr. Wright submitted that these examples illustrate
that under the terms of our decision Employees B, C and D, either because they were (Employee B) (Employee C) (Employee D) at Level 1 of the C01 pay scale (CO-Level l), or at Level 1
of the C02 (C02-Level l), or at Level 2 of the C02 pay scale (C02-Level2), all have a loss at the date that we selected for retroactivity. Employee A shows an unjust and inappropriate
result if the Ministry’s interpretation of our award is upheld. Mr. Wright argued that if we contrast Employees A and B, we see that Employee A, hired a year after Employee B and classified
9 months after Employee B, has earned more than Employee B. Put another way, the more senior, earlier trained and more experienced employee (B) earns less. This is out of step with the
rationale in Williams/Barber, at page 10: The reason for the various levels of pay in each classification is to recognize the increasing worth of an employee as the employee becomes
more experienced in the work of the classification. If an employee has done a job for one year, this employee ought to be able to do the job better, to be more productive, than an employee
who is new to the job. In recognition of this, the parties negotiate a higher rate of pay for the more experienced employee. Given this point, it does not seem right that an unclassified
employee, hired repeatedly in an unbroken string of service, who is in fact doing a full-time job, should continue to receive the same level of pay no matter how experienced the employee
becomes. 14
That rationale would be defeated by the Ministry’s interpretation as demonstrated by the comparison between Employee A’s and Employee B’s situation. The Ministry’s attempt to draw a
line between classified and unclassified employees, Mr. Wright argued, does not grant the remedy under Williams/Barber and, in fact, it undoes the very principle that the Union won in
that case, and this Panel, he submitted, should not permit that to happen. Mr. Wright also addressed the Elliott et al decision, supra, commenting that the Employer took the position
that it was separate from the Hammon/Maier decision in that there was no consolidation. However, while Mr. Wright agreed with the Employer in that respect, he argued that in the instant
case, we were dealing with the same central issue, that is, whether the Grievors who were classified by the time they filed their grievance, deserved a retroactive adjustment to their
pay rates to compensate for the fact that they did not get a merit increase when unclassified. Mr. Benedict, in arguing Elliot et al, had said, according to Mr. Wright, that because
those grievors were classified as of the date of their grievance, they were not entitled to any remedy; and that Williams/Barber was an “unclassified case” and that if these Grievors
were not caught within the unclassified group, then they were out of luck. In that case, Mr. Benedict submitted that ... the conclusions arrived at in both Hammond/Maier and Williams/Barber
concern unclassified employees and he does not see how the Grievors in the instant case “could extricate themselves from this”, given that at the time of filing the grievance they were
classified and this may be the situation of many others. As classified Correctional Officers they are not eligible for the benefits flowing from this decision. Mr. Wright noted that
in the result, in the Elliott et al decision, the Grievors received retroactive pay for a few days when they were unclassified, but that most of the retroactive pay was received for
a time period when the Grievors were classified. He then referred the Panel to OPSEU (E. Blake et al) and Amalgamated Transit Union and The Crown in Right of Ontario (Toronto Area Transit
Operating Authority), (1988) GSB # 2 12176/87, 1342/87, 1858/87, 1887-92187 2292/87, (Shime), known as Blake, which stated that 15
The Act does not give one panel the right to overrule another panel or to sit on appeal on the decision of an earlier panel. Also, given the volume of cases that are currently administer
by this board, the continuous attempts to pursuade [sic] one panel that another panel was in error only encourages a multiplicity of proceedings and arbitrator shopping which in turn
creates undue administrative difficulties in handling the case load. According to Mr. Wright, the only distinction between the Grievors who got paid in Elliott et al is whether they
were classified, and that, according to Elliott et al, is not a relevant distinction. In the Union’s submission, the Hammond/Maier decision stipulates that classified Grievors who continue
to suffer loss as of the date of retroactivity in terms of compensation, should have that loss remedied retroactive to either March 18, 1992 or 20 days prior to the filling of their
grievance, which ever is earlier. To do otherwise, Mr. Wright maintained, is to overrule Elliot et al and in doing so, would be deciding contrary to Bfake. It would, Mr. Wright maintained,
be contrary to our purpose in Hammond/Maier and would result in unjust situations in which more senior and more experienced Correctional Officers are paid less, and we ought not, he
urged, let that happen. The Ministry’s position would result in a continuation of the effect described above for at least a year after the end of the Social Contract and if it should
happen that wages are frozen, this inequity could continue ad infinitum. Mr Wright maintains that this result can be avoided without our reconsidering or readjusting our decision. It
would simply require us to point out to the Ministry that it must address any losses which were occurring as of March 18, 1992, the date of retroactivity which was set out in Hammond/Maier.
The Board is asked to affirm that the Union’s interpretation of the award is correct. Mr. Wright stressed that the Union was not asking the Board to rethink, reconsider, or adjust our
decision in any respect, rather, it was asking the Board to enforce a decision. We cannot, he submitted, possibly be functus, given that our award states that we would remain seized.
It is not logical, Mr. Wright submitted, to say, as the Employer would have it, that the Hammond/Maier award is to be applied only to unclassified employees. It is a fallacy of the Employer’s
position that the fact that an individual becomes classified cuts his or her damages. 16
This is similar to the Williams/Barber case in which the Grievors were classified on the date they grieved. The fact that Williams was classified on the date that he grieved did not
prevent him from getting a remedy, nor did it apply only to the period during which he was unclassified. Mr. Wright referred the Panel to page 11 of this decision, the remedy: Therefore,
we order that, for each of the six grievors, he [sic] ought to have been paid at the C01 second level rate as of the commencement of the first contract of service which began after he
had worked full-time for the equivalent of one full year for the Ministry of Correctional Services as a C01. And the reafter, the grievors’ pay ought to have reflected the fact that
they were receiving the C0 1 second level rate as of the date stipulated in the preceding sentence. Mr. Benedict, on behalf of the Employer, submitted that the Employer does not agree
with the Union’s view that underfill is a promotion. He cited the definition of “promotion” in Article 5.1.1: Promotion occurs when the incumbent of a classified position is assigned
to another position in a class with a higher maximum salary than the class of his former position. Underfill does not, he argued involve the assignment to another position and further
the underfill issue is one of classification, according to the Grievance Settlement Board jurisprudence. The salary rates are negotiated between the parties and if those ranges and steps
created unfairness in some situations, those can be the subject for bargaining. They are not, he maintained, legitimate grounds on which to fashion a remedy. The problem is, he put forward,
one of implementation and the examples cited by the Union, illustrate that there is bound to be a certain unevenness in that process. When one considers that the unclassified did not
receive a merit increase at all for more than twenty years, the policy of giving unclassified staff a merit increase, is bound to create some anomalies. The criteria to receive a merit
increase are satisfactory performance and 2080 hours of work. That work can be spread out over a period of time. Mr. Benedict submitted that normally the unclassified service of a Correctional
Officer is followed by his or her classified service and the Williams/Barber remedy says that if you go back to giving unclassified correctional officers a merit increase, then salary
transactions that follow, and that includes classified staff, would be fixed as well, and, while that is true, it does not mean that grievors who are classified should get the increase
as classified employees. Rather it is what follows naturally from getting an increase as an unclassified employee. Mr. Benedict maintained that the 17
Elliott et al decision is separate from the Hammond/Maier group and that the Union is now trying to take certain things from the former and apply them to the latter. It is important,
he maintained, to distinguish the way in which the parties chose to handle these cases and that distinction renders Blake irrelevant. It is the Employer’s position that the Panel’s decision
in Hammon/Maier was final, and that this Panel is functus, that is, without jurisdiction. Mr. Benedict submitted that some of the criteria were met in Williams/Barber. In the first place,
the Grievor was an “unclassified Correctional Officer, on contract”. The issue concerned the movement from Level 1 of the C01 pay scale (COl-Level 1) to Level 2 of that pay scale (COl-Level2)
and that compensation is to be paid for that, and an effective date has been determined for that compensation to be paid. Mr. Benedict referred the Panel to Article 3.3.1 of the Collective
Agreement: WAGES 3.3.1 The rate of the equivalent civil service classification shall apply. If there is no equivalent classification, the rate shall be set by the ministry involved and
the Union shall have the right to negotiate the rate during the appropriate salary negotiations. Here, he submitted, we are talking about unclassified employees receiving a merit increase
and it is agreed that the “merit increase policy” implemented by the Employer does not provide any wage adjustment for current Correctional Officer 2s. Mr. Benedict submitted that March
18, 1992, is the date when Management began to be w r o n g The clock starts, he argued, at that date, following the Hammond/Maier decision, and whatever went on prior to that date is
irrelevant. The Board’s determination in that ruling established a new retroactivity date for the application of the Williams/Barber decision and for the Ministry’s merit increase policy
of July 1, 1992. The Board decided, in the Hammond/Maier decision, according to Mr. Benedict, that those grievors who are unclassified Correctional Officers who are at the first salary
step for CO 1 and who satisfied the conditions of the Ministry’s policy of July 1, 1992 (2080 hours and 18
satisfactory performance) are entitled to remedy for their grievances and are entitled to the second salary rate for C01 and retroactive compensation from March 18, 1992 with interest.
what retroactivity was and it had nothing to do with C02 maximum or C02 minimum and further, it did not just include anybody. That is Mr. Benedict submitted that the parties, through
their Memorandum of Settlement set out above, implemented Hammond/Maier exactly according to the responses which the Panel gave. The Court at judicial review did not, he noted, find
anything wrong with the questions, or with the answers given. It is the Employer’s view, he explained, that when such lines are drawn that some employees will benefit more that others
and there are those who will not benefit at all. Perceived unfairness and unevenness cannot be avoided. The drawing of lines will always result in some individuals being unhappy. Such
an exercise is not, he pointed out, perfect and there are tradeoffs. Mr. Benedict submitted that the Union is now asking the Board to ignore the full context of the grievances, the submissions
of the parties and the decision of the Board and to create new categories with new considerations. These are, inconsistent with the circumstances, and the Board, he maintained. has no
jurisdiction to change any of the circumstances, the remedy of Williams/Barber the merits of Williams/Barber the court endorsement at judicial review of Williams/Barber the issue dealt
with (the unclassified staff receiving the second level of the C0 1 classification (C0 1 -Level 2)) the joint submissions by the parties and their questions to the Board the criteria
established by the Employer for the receipt of the salary increase the effective date of March 18, 1992 the salary increase and the rate of interest the decision in Hammon/Maier regarding
the concept of employee awareness the Board’s decision not to grant full retroactivity. 19
In summary, he submitted, it is not open to the Union and the Grievors to redraw the line or alter the remedy. He stated that he appreciated that some Grievors will be disappointed with
their failure to receive what they may perceive are full benefits or their entitlement. However, the parties have now agreed to handle the matter in a certain way, and the Ministry believes
that it is conducting this in proper fashion and it intends to follow it through. Counsel for the Union replied that the Employer is arguing that the Union is trying to get something
which was not originally on the table, and this is not so. Mr. Benedict suggested that the parties put the grievance only of unclassified Correctional Officers before the Panel, which
is not so. Mr. Wright referred the Panel to the original grievances and noted that Ms. Hammond asks to be paid at the appropriate rate at the date of the grievance and that she was classified
on that date. Ms. Maier, in her grievance, he stated, does not raise the issue of classified or unclassified and she too, was classified at the date of her grievance. Both ask for all
moneys owing with retroactivity and interest. The Union, Mr. Wright explained, alleges that the Employer failed to pay for Correctional Officers, not for unclassified Correctional Officers,
and this is in accord with Williams/Barber which did not just give a merit increase to unclassified Correctional Officers, but also gave a subsequent increase. The Union and the Employer
agreed that there were three grievances on the table which do not in any way limit the retroactivity to unclassified employees. The Union was asking for the appropriate rate of pay and
it is still asking for that, Mr. Wright asserted. The issue in Hammond/Maier, he submitted, was not the date of eligibility and the resulting compensation, rather the question put to
the Board in 1992/1993 was what was the appropriate retroactivity date, not what was owed at the retroactivity date. The two Grievors, Ms. Hammond and Ms. Maier, were asking for the
appropriate rate of pay. They do not have it, according to Mr. Wright, because they did not get the increase as an unclassified Correctional Officer and as a result are still being inappropriately
paid. He pointed out that in Hammond/Maier, the Union argued for full retroactivity which the Panel rejected, deciding instead that the retroactivity date should be based on the judicial
review date, or 20 days prior to the date of which the grievance was filed, whichever was earlier, and the 20
Divisional Court confirmed this. None of the questions put to the Panel referred to “only classified” or to “unclassified merit increase”, nor was there any suggestion that the Grievors
should be subdivided in anyway. He submitted that the decision applies to different people in different positions and entitlements. The only purpose for the categories in the Union’s
presentation was to show the different losses, resulting from the retroactivity date selected by the Panel. Mr. Wright pointed out that the Union does not accept the Ministry’s July
1992 Merit Increase Policy as a resolution of the implementation of Williams/Barber. It is precisely because the policy has not been accepted that the Union is now before the Board.
In Williams/Barber, Mr. Wright stated, the central issue was the misapplication by the Ministry of that article, and the result, in that case, is that damages flow for three years if
the Grievors have not been paid correctly and the decision therein remedies both aspects of the damage. Mr. Wright explained that the Union accepts that for a grievor to be entitled
to any remedy that person must meet the criteria of Williams/Barber and it is not asking the Panel to rule differently, only to rule there is no distinction between classified and unclassified
Grievors. Mr. Wright referred the Panel to the Memorandum of Settlement signed by the parties and cited above, noting that the Union accepts the criterion of 2080 hours in Item 4 and
that the Ministry, in agreeing to Item 2, agreed not only that unclassified Correctional Officers would get a raise in the unclassified rate, but also that the subsequent merit increase
would be adjusted retroactively. The Ministry in doing so, has, therefore, accepted Williams/Barber. Mr. Benedict cannot, on the one hand agree in the Memorandum of Settlement to return
to the Panel to deal with grievances not captured by the criteria identified, and on the other hand, argue that the Panel is functus. 21
DECISION The issue in Hammon/Maier was the request of the Grievors to be paid at the appropriate rate of pay, taking into consideration date of hire, length of continuous service and
appointment date to the classified service. Also, that all monies owing be paid re-troactive [sic] with interest. [Emphasis added] The Union asked that The Employer pay the appropriate
merit increase to all affected Correctional Officers as per the Williams/Barber, GSB # 1448/90 1449/90 and 1446/90 with full retroactivity back to the date when Williams/Barber, first
became aware of the discrepancy. [Emphasis added] The parties, in addressing this issue, believed that if there were a determination of the retroactivity matter, this then could be used
as a tool for settlement. The Panel issued a decision on the retroactivity and the parties were indeed able to settle the matter for many of the Grievors, as can be seen from the “Memorandum
of Settlement” set out above. This, combined with the establishment of the policy of paying merit increases to unclassified employees as of July 1, 1992, resulted in an agreed-to application
of the Williams/Barber award to most of the Grievors, within the framework of the Hammond/Maier decision on retroactivity. It was not the expectation of this Panel that it would necessarily
do so for all Grievors. A consideration of the application of the principle of the Williams/Barber decision was not necessary in most of the cases. It appears, however, that the implementation
of the retroactivity did not resolve all the grievances. Mr. Benedict argued that we have no jurisdiction to consider the current requests of the Union. We are, as they say functus.
In considering whether or not we have jurisdiction to hear the matters which the Union has brought before us, we considered the following factors: that the March 1994 decision in Hammon/Maier
did not deal with the main issue determined in the Williams/Barber decision; that the issue of appropriate pay is still outstanding in the case of those Grievors for whom the application
of the retroactivity decision did not resolve that issue; that the decision was interim, indicating that a final decision was expected; that we remained seized to assist in the implementation
of the award; that the judicial review was a confirmation of the Panel’s decision on retroactivity 22
only, since that is all the decision dealt with; that the parties in their Memorandum of Settlement recognized that there would be grievances not captured by this memorandum; that the
parties agreed in their Memorandum of Settlement signed in the fall of 1995, to return to the Panel to deal with unresolved grievances. The Panel agrees with Mr. Benedict in part. The
matter of retroactivity has been decided and confirmed at judicial review. That matter is closed and we have no jurisdiction to look further into that issue of the implementation of
the Williams/Barber decision. However, the issue of “appropriate pay” has not been dealt with by the Board, although the retroactivity resolved a number of the grievances respecting
that. The Panel wishes to make it clear to the parties that the application of the Social Contract and any negative impact it might have on the Grievors is not before this Panel, and
the Panel has no jurisdiction in that respect. Therefore, it is the Board’s ruling that it does have jurisdiction to consider the question of “appropriate pay” which the Union has placed
before it. Williams/Barber states that The reason for the various levels of pay in each classification is to recognize the increasing worth of an employee as the employee becomes more
experienced in the work of the classification. If an employee has done a job for one year, this employee ought to be able to do the job better, to be more productive, than an employee
who is new to the job. In recognition of this, the parties negotiate a higher rate of pay for the more experienced employee. ... Nonetheless, in our view, the basic scheme established
in the collective agreement and its wage rates ought to be observed. The parties negotiated a second level C01 rate. This demonstrates the intention to reward greater experience with
greater pay. Williams/Barber says that, because the parties negotiated a CO1-Level2 pay rate, its existence was not to be ignored and that, subject to satisfactory performance, a Correctional
Officer 1 should move into that level once he or she has gained a year’s experience. At the same time, 23
this case articulates the principle that there should be a higher rate of pay for the more experienced employee. The Board in that case, then applies these to the situation under consideration
and in effect, goes “back to square one” and makes the adjustments, and the result, in the group under consideration, was that the more experienced employees were paid at a higher rate.
In the cases under Hammond/Maier, the Board did not go back to square one and in its decision set out the reasons for not doing so. At that time it accepted the principles in Williams/Barber
which had been confirmed at judicial review, and at no time has it rejected the concept of the more experienced employee being paid at a higher rate. Further, it was not the intention
of the Panel to have the application of its retroactivity date result in the rejection or overturning of this principle. However, at the time, the actual results of the application in
individual cases were not presented by the parties nor considered by the Panel. Mr. Benedict argues that the retroactivity in our decision should be applied and “let the chips fall where
they may”, whether or not this creates an inequitable result for certain employees. The Panel does not have jurisdiction to adjust the retroactivity date which has been applied, nor
would it do so if it had that jurisdiction. It does not however, believe that the application of the retroactivity should overturn the principle articulated in Williams/Barber of the
more experienced employee, subject to satisfactory performance, earning more than the less experienced employee. To do so would be to uphold a perverse result. Mr. Benedict submitted
that the application of our decision was restricted to unclassified Grievors. The Panel did not place any such restriction on its decision. The fact that the Ministry’s July 1992 Merit
Increase Policy is restricted to that group because C01 s are unclassified, does not mean that the Panel’s decision was restricted to unclassified Grievors. Nor does the fact that the
point of correction is in the C01 range which in practice consists of unclassified Correctional Officers. The Panel has recognized from the outset that many of the Grievors were classified
at the time they filed their grievances and at no time has it contemplated excluding them on that basis. 24
For the purposes of this arbitration, the Grievors, who are all classified, have been categorized according to their particular situations. Their individual situations have resulted
in their not conforming with the principle of more experience, higher pay. The fact that they are classified should not exclude them from the application of the retroactivity date of
March 18, 1992 or 20 days prior if their grievances were filed earlier. The Board orders, therefore, that providing they, individually, meet the criteria in Williams/Barber, that is,
during their unclassified service they have accumulated at least one year of service, were working full time, and, were doing the same duties as a classified Correctional Officer, they
be compensated with interest as set out in the Hammon/Maier award dated March 3, 1994. With respect to the second group of Grievors who are also classified, the Panel has ruled that
it does not have jurisdiction to revisit the issue of retroactivity. However, should the loss incurred by these individuals result in the same anomaly, that is, their being paid less
than employees with less experience, then compensation with interest as set out in the Memorandum of Settlement of September 1995, should be made, providing they meet the critera in
Williams/Barber that is, during their unclassified service they have accumulated at least one year of service, were working full time, and, were doing the same duties as a classified
Correctional Officer, so that their compensation is not at odds with the principle articulated in Williams/Barber. The Board so orders. While the Panel hopes that this decision will
put this matter to rest, it remains seized in the event that the parties require its further assistance. C H.S. Finley, Vice-Chair Dated at H. O'Regan, Member t J.R. Scott, Member 25
Appendix A SCHEDULE II CORRECTIONAL SERVICES CATEGORY Classification notes and salary allowances applicable to classifications in this category: None CORRECTIONAL SERVICES 50090 50092
50094 50096 50561 50563 co-0 1 50565 co-01 ... ... ... ... c o r r e c t i o n a l OFFICER 1 [LEVEL 1 [LEVEL 2 0 1/0 1 /92 17.03 18.49 0 1 /O 1 /92 17.39 18.87 CORRECTIONAL OFFICER 2
[LEVEL 1 [LEVEL 2 [LEVEL 3 0 1 /O 1/92 18.35 19.83 20.99 0 1 /O 1 /93 18.72 20.22 21.39 c o r r e c t i o n a l OFFICER 3 [LEVEL 1 [LEVEL 2 [LEVEL 3 HOURS OF WORK SCHEDULE 4-7 4-7 4-7
0 1/01/92 20.99 21.46 22.03 0 1/01/93 21.39 21.86 22.44 26