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HomeMy WebLinkAbout1997-0708.Martin.98-02-13EMPLOY& DE LA COURONNE DE SONTARK) COMMISSION DE SEll-LEMENT RkGLEMENT DES GRIEFS 180 DUNDAS STREET WEST; SUITE 800, TORONTO ON M5G 128 180, RUE DUNDAS OUEST; BUREAU 800, TORONTO (ON) M5G 128 TELEPHONETTfLiPHONE : (476) 326 - 1388 FACSIMILE/liL~COPIE : (416) 326-1396 GSB # 0708197 CUPE 1750 # 97-10 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN CUPE 1750 (Martin) Grievor - and - The Crown in Right of Ontario (Workers’ Compensation Board) Employer BEFORE FOR THE UNION N. Dissanayake L. Paddison National Representative Canadian Union of Public Employees Local 1750 Vice-Chair FOR THE EMPLOYER E. Kosmidis Counsel Workers’ Compensation Board HEARING December 17, 1997 2 DECISION This is a grievance dated February 12, 1997 wherein Ms. Julia Martin alleges that the employer established an improper anniversary date for purposes of her progression through the salary grid. The material facts are not in dispute in any significant respects. The grievor commenced employment with the employer on August 20, 1990 in a temporary position outside the bargaining unit as Adjudicator Assistant. In this position she received a payment in lieu of benefits. On May 17, 1991 she became a permanent Adjudicator Assistant, still outside the bargaining unit. She no longer received any in lieu pay but instead became entitled to benefits. On July 19, 1991 the grievor obtained a temporary assignment as a Vocation Rehabilitation Caseworker through a posting. There is no dispute that in this temporary assignment the grievor occupied a bargaining unit position. While on this assignment, she retained the classification and title of her "home position" of Adjudicator Assistant, but was paid a salary differential, i.e. the difference between the pay she had as Adjudicator Assistant and the rate payable to a Caseworker under the wage schedule in the collective agreement. She was required to pay union dues. Initially the temporary ass ignment was to last only until December 31, 1991. However, subsequently it was extended twice, the first time to January 31, 1992 and then to March 27, ,1992. During this period salary increments implemented with respect to both her home position and her temporary bargaining unit position were applied to her, resulting in the .- adjustment of her wage differential. 3 The next significant event occurred on March 27, 1992 when the grievor obtained a permanent bargaining unit position as a Caseworker. Following this, the employer established an anniversary date of March 27, 1992 for the grievor for purposes of salary progression. The evidence indicates that at the time the grievor did not see any impropriety and did not question the correctness of the anniversary date established. However, in the fall of 1996 while discussing some unrelated issues with the union, it was pointed out to her by union officials that the employer had assigned her a wrong anniversary date. This grievance was filed subsequently. The following provisions of the collective agreement were relied upon by the parties: 18.02(l)(a) Classification of Employees Every employee covered by this Agreement shall be classified under a salary grade or level, job title and/or job description appropriate to the occupation in which he is regularly employed, and in accordance with Schedule "A" of this Agreement. 22 (h) . . . Salary progression shall be maintained when a full time temporary employee becomes a probationary employee performing the same or similar work. Schedule "A" to the collective agreement sets out the salary scale consisting of a five step grid. Note one to the schedule provides: 1. The anniversary date is based on the date the employee commenced on the current job. This may be either the date of hire, or the date of a subsequent transfer. The Board will first deal with two issues raised by the employer. Firstly, the employer asserted a "past practice' in support of its position. This assertion cannot have any bearing on the outcome of this 4 case for two reasons. First, there was no claim either that the union was estopped from relying on its rights or that the collective agreement provisions were ambiguous so as to make evidence of past practice admissible and relevant. Moreover, the employer's evidence of past practice consisted only of the testimony of Ms. Suzan Kucerak, Manager of Salary Policy and Administration, who had been employed in salary administration only from January 1991, to the effect that she was not aware of any case since the collective agreement was first signed, where the employed had departed from the approach it had followed in this case. There was no evidence of any specific example involving a non-bargaining unit employee who later obtained a temporary bargaining unit position and then a permanent bargaining unit position as was the case with this particular grievor. Such a general assertion is wholly inadequate to establish a past practice which would aid in the interpretation of the collective agreement. Secondly, evidence was led that upon being appointed to the temporary bargaining unit position in July 1991 and upon each subsequent extension, the grievor signed a memorandum of agreement containing a clause to the effect that "While on this temporary assignment, the employee will retain his/her permanent staff status and his/her original job title, and all rights pertinent to the status of a permanent employee". It also had provisions whereby the grievor became entitled to return to her non- bargaining unit permanent position at the end of the temporary assignment. It also provided that "While on temporary assignment, you will not be protected under any provision of the collective agreement". What is clear is that this agreement was signed strictly between the management and the 5 grievor in her individual capacity. The union was in no way party to it. There is no evidence that the union was even aware of the agreement. In these circumstances, the terms of the individual contract cannot be determinative or even be of any relevance, to the outcome of this grievance. The agreement sets out the terms and conditions under which the employer intended the temporary assignment to work. If the provisions of the collective agreement dictate a different result as the union claims, that must take precedence over the terms of the individual contract. In other words, collective agreement rights may not be waived or restricted by a contract between an individual and the employer. McGavin Toast Master Ltd. V. Ainscough, (1975) 54 D.L.R. (3d)l (S.C.C.). Therefore, the outcome of this grievance must ultimately turn on whether the anniversary date established by the employer is consistent with the provisions of the collective agreement. The union's position is that when the grievor commenced her temporary assignment on July 19, 1991 she became a full-time temporary employee in the bargaining unit within the meaning of article 22(h). She subsequently started her probationary period as a permanent employee in the bargaining unit commending March 27, 1992 in the same Caseworker position. Thus the union argues that article 22(h) requires that salary progression be maintained for the grievor. The employer made a two pronged argument in support of its case. Counsel submitted that when the grievor commenced her temporary assignment in the bargaining unit on July 19, 1991 the only entitlement she had under the collective agreement was to be paid the wage rate applicable under 6 schedule "A". Apart from that, she had no collective bargaining rights and she was not a member of the bargaining unit. She became a member of the bargaining unit only when she started her permanent position as Caseworker. As an alternate argument, employer counsel submits that the governing provision was article 18.02(1)(a), which requires classification of employees in a salary grade only where the employee is "regularly employed" in an occupation in the bargaining unit. According to counsel, during the temporary assignment the grievor was not regularly employed as a Caseworker (a bargaining unit position) but was employed as Adjudicator Assistant (a non-bargaining unit position). She became regularly employed as Caseworker only when she started her permanent position. . However the parties may attempt to characterize their arguments, the critical and determinative issue here is whether or not the grievor was employed in the bargaining unit and therefore subject to the collective agreement during her period of temporary assignment. The employer conceded that if an employee "off the street" had been given the temporary assignment which the grievor did, she would have been in the bargaining unit and covered by the collective agreement, and that upon attaining a permanent Caseworker position subsequently as the grievor did, that employee would have been entitled to an anniversary date going back to the date of commencement of her temporary assignment. There is no dispute that the recognition clause in the collective agreement includes temporary full-time employees in the bargaining unit. Therefore, the employer is correct with regard to the hypothetical employee hired "off the street". The only difference in the grievor's case was that she was 7 already employed by the employer, albeit outside the bargaining unit, at the time she commenced her temporary assignment in the bargaining unit. This, the employer submits, makes all the difference because the grievor retained her permanent non-bargaining unit status during her temporary assignment. The hypothetical employee had no other employment status to retain. Having carefully considered the submissions, I have concluded that the employer's position is not supportable. As a factual matter, there can be no doubt that from July 19, 1991 to March 27, 1992 the grievor was "regularly employed" as a Caseworker, which was a bargaining unit position. Throughout that period she performed the duties of a Caseworker. The only way that reality could be negated is through the fiction created by the individual contract. As noted, that contractual fiction - that the grievor be deemed to be employed as Adjudicator Assistant, when in fact she was occupying and performing the duties of a Caseworker - cannot prevail if it is contrary to what is contemplated in the collective agreement. Article 22(h) requires maintenance of salary progression where (a) a full-time temporary employee becomes a probationary employee lb) and performs the same or similar work. Were these conditions met in the fact situation here? Between July 19, 1991 and March 27, 1992 the grievor was working full-time hours in a temporary position. That makes her a full- time temporary employee. Then effective March 27, 1992 she became a probationary employee upon obtaining her permanent position. Therefore condition (a) is satisfied. Condition (b) is also satisfied because in 8 both the temporary and permanent positions, the grievor performed the same work, i.e. that of a Caseworker. The employer's assertion that between July 19, 991 and March 27, 1992 the grievor was not employed as a Caseworker in a temporary capacity but that she was employed. as a permanent employee in a position outside the bargaining unit is only a fictional status resulting from the individual contract. The effect of that individual contract is to negate what naturally flows from the provisions of the collective agreement. In that situation the collective agreement must take precedence. The employer's distinction between an "off the street" individual who commences temporary employment in the bargaining unit and an employee from outside the bargaining unit who does so, also in my view, is misplaced. The collective agreement establishes a distinct regime for a clearly defined group of employees. Unless otherwise specifically provided, anyone coming into the bargaining unit will be a "new" employee to the bargaining unit. For example, a non-bargaining unit employee, who obtains a position in the bargaining unit cannot bring his or her seniority into the bargaining unit, unless of course the agreement specifically provides for that. Employment outside the bargaining unit would be of consequence as far as rights under the collective agreement are concerned, only if the collective agreements provides for that. There is a further inconsistency in the employer's reasoning. On the one hand, the employer insists that up to March 27, 1992 the grievor's employment was outside the bargaining unit in the capacity of permanent Adjudicator Assistant. However, the grievor was required to and did pay 9 union dues. While the employer contended that the grievor was not covered by the collective agreement during the period in question, Ms. Kucerak testified that article 19 and Schedule "A" of the collective agreement applied to her. That was the justification offered for the requirement to pay union dues. But at the same time, counsel during her submissions took the position that the grievor would not have been entitled to grieve any salary dispute during her temporary assignment. That does not make sense. It is certainly open for parties to a collective agreement to restrict the application of certain provisions of the agreement to certain types of employees. However, if such a result is intended, it must be provided for in the agreement. Thus a collective agreement may provide that temporary employees or casual employees, though covered by the agreement, are not entitled to certain rights under it. However, this is not such an agreement. This collective agreement does not draw any distinction between new hires off the street and new hires coming into the bargaining unit from outside the bargaining unit. A person is either covered by the collective agreement or she is not. The employer did not point to any language in the collective agreement justifying the application of only selected provisions of the collective agreement to the grievor. It follows from the foregoing that the employer erred in establishing March 27, 1992 as the grievor's anniversary date and that constituted a violation of the collective agreement. The employer is directed to establish an anniversary date of July 19, 1991 for the grievor and to rectify all losses suffered by the grievor as a result of its breach. As 10 requested by the parties, I remain seized to deal with any issues relating to remedy arising as a result of this award. 13th Dated this day of February 1998 at Hamilton, Ontario Vice-Chair