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HomeMy WebLinkAbout1990-2297.Gabriel.92-02-20 Decision ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE CONTARIO GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 OUNOAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. MSG 1Z8 TELEPHONEiTELEPHONE: (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO). MSG 1Z8 FACSIMILE/TELECOPIE: (416) 326-1396 2297/90 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Gabriel) Grievor and The Crown in Right of Ontario (Ministry of Revenue) Employer BEFORE: N. Dissanayake Vice-Chairperson G. Majesky Member A. Stapleton Member FOR THE B. Hanson GRIEVOR Counsel Cavalluzzo, Hayes & Shilton Barristers & Solicitors FOR THE K. Cribbie EMPLOYER Labour Relations Officer Ministry of Revenue HEARING April 17, 1991 2 DECISION The grievor, Mr. Duncun C. Gabriel, grieves that he has been denied travel credits from September 19881 contrary to the collective agreement. The dispute relates to the extent of the rights of a bargaining unit employee under article 6. 5, when he is temporarily assigned to an excluded management position which falls under schedule 6. The grievor held the position of Senior Tax Auditor at the Motor Fuels and Tobacco Tax Branch of the Ministry since February 1987, classified as Financial Officer 3 . It is common ground that in that position, the grievor was entitled to, and received, travel credits under article 23 of the collective agreement. The evidence indicates that the Branch employed three Audit Supervisors. One of them, Mr. I Correa, was involved in an auto accident sometime in early 1988. Due to certain medical complications, Mr. Correa's return to work was delayed and the employer decided to fill his position through an acting appointment. Sometime early in September 1988, Mr. Larry Sheehan, Senior Supervisor of Audit at the Branch, offered the position to the grievor and he accepted. 3 The Audit Supervisor position was a schedule 6 position which was excluded from the bargaining unit. The grievor's acting appointment was effective September 12, 1988. . While the change of status documentation states that the appointment was for 5 to 6 months, it was understood by everyone concerned that the duration depended on the ability of Mr. Correa to return to work. It is agreed that the Audit Supervisor position also involved travel. Audit Supervisors, being schedule 6 employees are required to work minimum of 36 hours a week, but no maximum is specified. They did not receive any travel credits, but were entitled to the "Management Compensation Option" (MCO) . The MCO at the time allowed eligible persons to take one week per year off, or alternatively, to receive a sum of money equivalent to one weeks pay. This benefit was in recognition of the extra-time schedule 6 employees were expected to work without additional compensation. When the grievor assumed the acting position, he received wages at the rate of a AF-19, which was approximately $ 7, 500.00 per year more than the wages he received as a bargaining unit employee. In this acting position, he continued to pay union dues. After he assumed the acting position, in October 1988 the grievor filed a claim for travel credits as he had done before. The grievor testified that he 4 was told at that time by Mr. Sheehan that he was not entitled to travel credits while acting in a management position. He stopped submitting claims for travel credits after that. In March 1989 the grievor was advised by certain employees that he should be entitled to travel credits in his acting position. This caused the grievor to approach Mr. Sheehan again. Mr. Sheehan again reiterated that a bargaining unit employee is not entitled to travel credits while occupying a management position on an acting basis, but said that he will confirm that with the Human Resources Branch. Following that conversation, the grievor was provided with a written response from the Human Resources Officer. While that did not clearly address the question of the grievor's entitlement to travel credits, there can be no doubt that the grievor took it as confirmation of the verbal response Mr. Sheehan had previously given. The grievor testified that while he was not content with the employer's position, he did not take any action at the time because he did not want to jeopardize his chances in case the audit supervisor position was posted permanently. Nevertheless, the grievor did raise his concern again on February 7, 1990. By a letter addressed to Mr. Sheehan, he pointed out that since he assumed the acting position in September 1988, he had not received either travel credits or 5 the MCO. He complained that he was "caught in the middle" because he was "neither classified as full management nor working level" . The grievor testified that Mr. Sheehan's response to this letter was "virtually the same as before" . Mr. Sheehan referred this letter also to the Human Resources Branch. That Branch's response to the grievor was vague and did not clearly address his concern. Nevertheless, there can again be no doubt that the grievor understood that his claim had been denied. The Human Resources had suggested to Mr. Sheehan that consideration should be given to posting the Audit Supervisor position on a permanent basis as a means of "solving a potential personnel problem" . The grievor testified that he felt that he would have a good chance if the position is posted. He also felt that if he took any action against the denial of travel credits, his chances at a competition would be jeopardized. As a result he did not grieve at that time. As it turned out, Mr. Correa's health did not improve and he elected to go on LTIP. The employer posted the position. The grievor applied, but was not successful in the competition. When the successful candidate was appointed, the grievor's acting assignment ended on November 2 , 1990. This grievance was filed on November 5, 1990. 6 The parties agree that there are two issues for determination in this proceeding: (1) The grievor Is entitlement to travel credits under article 6.5. (2) The extent of the retroactivity if there is entitlement. Entitlement under article 6. 5 Article 6.5 reads: Where an employee is temporarily assigned to perform the duties and responsibilities of a position not covered by this Collective Agreement, he shall retain his rights and obligations under the Collective Agreement. The grievor was not given the MCO during his acting assignment. The Ontario Manual of Administration expressly provides that an "employee occupying a position in a bargaining unit class who is assigned to act in a position in which the employee is eligible to receive MCO credits is not entitled to receive MCO credits for the acting period" . Since MCO is not a benefit provided for by the collective agreement, the grievor does not claim MCO credits through this grievance. However, counsel for the union submits that travel credits constitute a right under the collective agreement, and that under article 6.5 that right is retained when an employee is temporarily assigned to a management position, which is "a position not covered by the collective agreement". Mr. Hanson 7 points out that article 6.5 does not limit its application to some rights under the collective agreement and that if the parties intended to limit the article to only certain rights, they would have done so. Counsel relies on Re OPSEU (Union Grievance) , 1588/84 (Delisle) . Counsel for the employer submits that the Delisle decision does not provide an exhaustive definition of what constitutes "a right" for purposes of article 6. 5. He submits that article 6.5 only applies to those "automatic" entitlements such as the right to grieve (art: 27) , job posting (art: 4) , job security (art: 24) and the benefits provided in articles 40 to 57. However, counsel submits that things such as overtime and travel credits, where the entitlement only arises when authorization is given, are not preserved by article 6. 5. He points out that under article 23 entitlement to travel credits arises only "when travelling outside work hours are authorized by the Ministry" . Therefore, he submits that travel credits are not the type of right preserved by article 6.5. Alternatively, counsel submits that when the grievor accepted a schedule 6 position he knew or ought to have known that he will be not entitled to travel credits. It is submitted that the grievor knew that the other 2 permanent audit supervisors did not receive travel credits and that 8 therefore he could not have expected to be paid more in his acting capacity, than the permanent supervisors. In our view, the Delisle decision is a complete answer to the employer's arguments. In that case the policy grievance raised the issue of the entitlement of a bargaining unit employee to statutory holiday pay under article 19, during a period when the employee had been temporarily assigned to perform managerial duties. The Board noted at p.2 that article 6. 5 does not state that the employee transferred temporarily to duties not covered by the collective agreement retains some of his rights. The Board also recognized that it does not explicitly provide that he retains all his rights. However, the Board went on to state that "any fair reading of the actual language used compels" the latter interpretation. The Board concluded that " "His rights" , unless otherwise limited, must be read as all inclusive". We agree with that reasoning. We see no basis for the distinction drawn by employer counsel between "automatic rights" and other rights. It is true that the right under article 23 only arises when travel outside work hours is authorized. Therefore the right retained by article 6. 5 is the right to be paid travel credits for authorized travel 9 outside work hours. The employer conceded that it was not claiming that the travel for which credits are being claimed, were not authorized. Therefore, the claim is covered by article 6. 5. We also cannot accept the employer's alternate argument. In the foregoing paragraphs, we have concluded that the grievor retained his right to travel credits under article 6.5. In view of that, it can hardly be argued that the grievor knew or ought to have known that by accepting the acting assignment to a schedule 6 position, he was giving up those rights. Besides, that argument amounts to an alleged waiver of a right under the collective agreement by the grievor. In the absence of any concurrence by the union, which is the party to the collective agreement, the grievor could not waive a right negotiated by the union on behalf of the bargaining unit as a group (See, the Delisle decision at p. 3) . The Delisle decision also dealt with the argument that it is unfair for an acting employee to be paid more than what is paid to a regular management personnel. At pp. 3-4 the Board stated: While it may on the surface appear inequitable vis- a-vis the regular management employee it must be remembered that the temporary in turn does not have his security of position. The decision Garlock worries that to hold otherwise "those occupying the position not by way of temporary assignment, who 10 might have an identical complaint, would not have access to this Board" . We think that the short answer to this concern is that they' ll never have "identical complaints" as the bargaining unit employee's complaint will arise out of the agreement while the other is excluded therefrom. The regular management employee may go elsewhere with his complaint; the employee who continues to pay his union dues and remains a member of the bargaining unit is entitled to come to this Board. In addition, we note that the apparent inequity is further rendered insignificant because regular management personnel received the MCO (one week off or one week's additional pay) in recognition of the extra-time they put in. The employer did not extend the MCO to a bargaining unit employee who occupied a management position on an acting basis. If travel credits are also denied, there will be no recognition at all of the extra time put in by such an employee. For the foregoing reasons we find that the grievor retained his right under the collective agreement to travel credits for the duration of his acting appointment and that by failing to apply article 23 to the grievor during that time, the employer violated the collective agreement. Retroactivity Counsel for the union submits that this is an appropriate case to depart from the usual 20 day retroactivity. Counsel 11 points out that the grievor raised his concerns with his supervisor as early as October 1988, and renewed his claim for travel credits in March 1989 and again in February 1990. Counsel concedes that the employer did not at any time agree that the grievor was entitled to travel credits or advise him that his claim was under review. Relying on Re Sabo, 777/86 (Dissanayake) , he argues that explicit representations are not required for the Board to recognize full retroactivity. It is sufficient to establish that the grievor was misled, even if there was no intent on the part of the employer to mislead the grievor into believing that his claim was being looked at. Reliance was placed on Re Baldwin & Lynq, 539/84 (Mitchnick) , Re Boyle 675/85 (Brandt) , and Re Burrows, 379/88 (Mitchnick) . In our view these cases have no application to the facts before us. In Re Sabo, while the Board held that a representation by the employer is not essential as a condition for granting retroactivity, it went on to hold that "not every informal discussion of a classification complaint is sufficient to entitle a grievor to retroactivity. There must be evidence that the employer was made aware expressly or tacitly, that the employee is contemplating the filing for grievance if the outcome of informal procedures is not satisfactory" . In that case when the grievor complained that she was wrongly classified, the employer undertook to prepare an up-to-date position specification. The employer agreed 12 that until that position specification was prepared, the question of the grievor's proper classification was "up in the air" . In the circumstances, the Board held that the grievor was entitled to retroactivity to the time the new position specification was produced because until that time, the grievor could not have known what the employer's response to her classification complaint would be. The facts before us are very different. Each time the grievor raised his concerns, he was clearly advised that he was not entitled to travel credits. There was no review of his claim undertaken and there was no hope held out that the employer was reconsidering its position. When the grievor was asked in cross-examination whether at any time, Mr. Sheehan or any other member of management had led him to believe that he may be paid travel credits, he replied "No. They said I am not entitled" . The grievor candidly testified that each time he asked he got "virtually the same answer" , i.e. that he was not entitled to travel credits. The grievor did not suggest that Mr. Sheehan's responses or the written responses had, intentionally or unintentionally, led him to believe that the employer may accept his claim. On the .contrary, he knew clearly all along that the employer was rejecting his claim. For the same reasons, the other decisions relied on by the union are also distinguishable. In Re Baldwin & Lvna the 13 rationale for allowing retroactivity was that the employer was actively reviewing the grievor's complaint and had not yet rendered its decision. In Re Boyle informal settlement discussions were under way. In Re Burrows, the employer had encouraged the grievor to hold off grieving because a Grievance Settlement Board decision on which the grievor had relied on, was "under appeal". In the. case at hand, no informal settlement discussions or review were undertaken by the employer. The employer' s answer to the grievor's complaint was never "up in the air" . At all times since October 1988, the grievor knew that the employer was taking the position that he was not entitled to travel credits while temporarily occupying a management position. The grievor candidly testified that the only reason he did not grieve earlier was because he feared that grieving might jeopardize his chances in a competition. That explanation for the delay in grieving is not a basis, in our view, for extending retroactivity. There is not a hint of bad faith or hostility on the part of the employer towards the grievor. The grievor admitted that no member of management had ever discouraged him against grieving. If we accept the grievor's explanation in these circumstances as a basis for extending retroactivity, it will render the time limits under article 27 meaningless. Ve decline to do so. 14 Now we turn to the final argument made by union counsel in support of the grievor's claim for full retroactivity, based on Re Ababio, 1295/88 (Watters) . The grievors in that case complained to management about the use of the "lesser of principle" in calculating pay for travel time and distance. The employer consistently took the position that it will continue to apply the "lesser of principle" despite the grievors' complaints. The grievors took no action until they found out that in Re Hayford the Grievance Settlement Board had held that "the lesser of principle" was contrary to the collective agreement. As soon as this decision came to their attention, the grievors filed grievances. The Board allowed retroactivity to the date of the Hayford decision. It is not clear from the decision, how much additional retroactivity (beyond the 20 days from the date of filing of the grievance) accrued to the benefit of the grievors as a result of its decision. In any event the Board's reasoning is contained in the following paragraph: After considerable thought, the Board has decided to award retroactivity to the date of the Hayford award. We have been persuaded that rigid adherence to the twenty (20) day rule would not be appropriate in this instance. The Board considers it material that these grievors filed their grievances as soon as Hayford came to their attention. This step was taken shortly after the release of the award and without any delay on their part. The content of the decision clearly demonstrated that their reliance on the opinion of management had been misplaced. Given these circumstances, and the Employer's concession that Hayford dictated a change in their pre-existing 15 policy with respect to the calculation of distance and travel-time entitlements, we remain unconvinced that it would be inequitable to the Employer to so extend retroactivity. The Board wishes to make clear, however, that such extension is premised entirely on the factual situation before us. Other than the finding that in the particular circumstances it was not inequitable to the employer to extend retroactivity, it is difficult to glean any general principle from the Board's decision in Re Ababio. This is not surprising because it is apparent that the Board was not attempting to establish any general principle. That is why the Board states that it "wishes to make clear, however, that such extension (of retroactivity) is premised entirely on the factual situation before us" . We cannot accept union counsel ' s submission that Re Ababio stands for the proposition that where an employer knew or ought to have known that the employee's complaint was justified, but continued to refuse to redress the complaint, retroactivity should be extended. The decision in Re Ababio is to be confirmed to its unique facts as the Board expressly stated in its decision. What is relevant for the purpose of timeliness of the filing of a grievance and for the claim for retroactivity of the remedy, is the knowledge of the grievor. The employer's conduct will only be relevant in so far as it influences the grievor's state of mind, as where it leads the 16 grievor to believe that the complaint is being reviewed or holds out some hope that it may uphold his claim. All of the cases that have departed from the 20 day rule (other than Re Ababio) have focused on the grievor's state of mind. Where on the other hand, the employer clearly advises the grievor that it was denying his claim, even if this is done with knowledge that the grievor's claim was justified, it does not absolve the grievor from the responsibility to take action to enforce his rights. The purpose of the 20 day time limit in article 27.2 . 1 is to encourage employees to act expeditiously upon becoming aware of a complaint or difference. It is immaterial whether the complaint or difference arose as a result of ignorance on the part of the employer or a result of a blatant refusal to comply with the collective agreement. In either case, the employee must act expeditiously. Failure to do so may result in (a) his grievance being found to be untimely and therefore inarbitrable, or (b) a finding, even if his grievance is timely, that his retroactive claim for relief is limited. That makes good labour relations sense, and in our view, was the precise intention of the parties in negotiating time limits. For the foregoing reasons, we have concluded that there is no justification for departing from the 20 day retroactivity. 17 Summary In the result the Board finds that the employer contravened article 6. 5 by failing to pay to the grievor travel credits during the period he temporarily occupied the Audit Supervisor position. He is entitled to be compensated for his losses as a result of this violation with interest, retroactive to 20 days from the date of the filing of the grievance. The Board remains seized in the event the parties are unable to agree upon the quantum payable or the proper implementation of this decision. Dated this 20th day of February, 1492at Hamilton, Ontario N. Diss yake Vice-Ch irperson M j s Mem er r A. af p]k-t n Member