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HomeMy WebLinkAbout1990-2931.MacIsaac.92-03-04 DecisionEMPLOYES DE LA COURONNE DE L'ONTARIO 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 1Z8 BETWEEN BEFORE : FOR THE GRIEVOR FOR THE EMPLOYER HEARING (4 16 326- 1388 (4 16) 326- 1396 2931/90 IN TEE MATTER OF AN ARBITRATION Under TEE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before TEE GRIEVANCE SETTLEMENT BOARD OPSEU (MacIsaac) Grievor - and - The Crown in Right of Ontario (Ministry of Revenue) Employer w. Low M. Vorster F. Collict Vice-Chairperson Member Member L. Rothstein Counsel Gowling, Strathy & Henderson Barristers & Solicitors C. Rowan Counsel Fraser & Beatty Barristers & Solicitors January 13, 1992 INTERIM AWARD This grievance arises out of the implementation of an "underf ill assignment held by the Grievor, Gregory MacIsaac, during which time he was paid at the rate applicable to Tax Auditor 2 while he was underfilling in the Tax Auditor 3 position having succeeded in the competition therefor. Mr. MacIsaac’s claim is that while he was in the underfill Tax Auditor 3 position, he was doing the same work as he subsequently performed after the underfill was lifted and he was fully promoted to the position of Tax Auditor 3. Accordingly, he grieved he ought to have been paid while in the underfill at the same rate as was applicable for a Tax Auditor 3. The employer has made a preliminary motion for dismissal It is contended of this grievance upon the grounds of timeliness. that the Grievor has not complied with the provisions of Articles 27.01, 27.2.1, and 27.2.2 of the Collective Agreement which provide as follows: "27.01 It is the intent of the Agreement to adjust as quickly as possible any complaints or differences between the parties arising from the interpretation, application, administration or alleged contravention of this Agreement, including any question as to whether a matter ia arbitrable. 27.2.1 An employee who believes he has a complaint or a difference shall first discuss the complaint or difference with his supervisor within twenty (20) days of first becoming aware of the complaint or difference. 2 27.2.2 If any complaint or difference is not satisfactorily settled by the supervisor within seven (7) days of the discussion, it may be processed within an additional ten (10) days in the following manner: STAGE ONE 27.3.1 The employee may file a grievance in writing with his supervisor. The supervisor shall give the grievor his decision in writing within seven (7) days of the submission of the grievance. STAGE TWO 27.3.2 If the grievance is not resolved under Stage One, the employee may submit the grievance to the Deputy Minister or his designee within seven (7) days of the date that he received the decision under Stage One. In the event that no decision in writing is received in accordance with the specified time limits in Stage One, the grievor may submit the grievance to the Deputy Minister or his designee within seven (7) days of the date that the supervisor was required to give his decision in writing in accordance with Stage One. It is submitted that as compliance with the time limits set out therein are mandatory and not merely directory (v. peeling, 45/78, Arbitrator Prichard), this Board has no jurisdiction to entertain the grievance if it is raised out of time. The issue as to whether the Grievor has raised his grievance in a timely fashion turns on when the Grievor first believed that he had a complaint based on a violation or possible violation of the Collective Agreement. The kind of belief referred 3 to in the Collective Agreement has been construed by this Board and upheld by the Divisional Court as a subjective awareness of the existence of a complaint or difference (v. Queen in Right of Ontario as represented by the Ministry of Corre ctional Service s v. Ontario Public Service Empl oyees Uni on and th e Gr ievance Settlement Board, 74 O.R. (2d) 700). We ruled that the question of timeliness could not be disposed of in the absence of evidence as to the state of mind of the Grievor, and although it is the employer's motion, the Union called the evidence of Mr. MacIsaac first. Mr. MacIsaac testified that when he learned that he had been successful in the competition for the Tax Auditor 3 position but was going to be assigned to do the job on an underfill basis for a period of time, he was not very happy. He felt he was qualified to be a full Tax Auditor 3, and asked why he had not received the full Tax Auditor 3 status. He was advised by Mr. Lee Frankland, the Senior Supervisor of the audit centre, that the employer wanted to put Mr. MacIsaac through a nine-month training period and that he had not sufficient experience to hold the Tax Auditor 3 position. Mr. MacIsaac recalls that he discussed the underfill position perhaps one other time after the receipt of the written notification of his appointment, wherein he again asked why he had not received a full promotion to the position of Tax Auditor 3, and again he received the explanation that he needed more training. The training plan was reviewed with management, and although Mr. MacIsaac originally 4 held the view that he was already qualified, he concluded that perhaps he was wrong, that perhaps he did need the training and that Where was something to this. The underfill period concluded on October 29, 1990. By the end of November 1990, Mr. MacIsaac testified, he realized that nothing had changed between what he had been doing as an underfill Tax Auditor 3 and what he was doing as a full Tax Auditor 3. The work was the same. His evidence is that he began to wonder why he had not been paid as a Tax Auditor 3 for the whole period during which he was an underfill. On November 26, 1990, he wrote a memo to Mr. Frankland raising his complaint about his pay during the underfill period, and on December 17, 1990, he filed his grievance. The evidence of Mr. Neil Waugh and Mr. Harold Yaeger, the Grievor's two direct supervisors during the underfill period, was called on behalf of the employer as was that of Mr. Lee Frankland. Mr. MacIsaac’s underfill period was spent in a field visit training unit, supervised first by Mr. Yaeger and then by Mr. Waugh. The purpose of these units was to give employees exposure and experience in field auditing, although it was not the function of the members of the unit to perform complete field audits. The bank of files to be worked on by tax auditors assigned to this unit consisted at the time of corporations having revenues of under $12 5 million, and it was Mr. Waugh's evidence that assignment of files to auditors within the unit was simply on a first come, first serve basis. Both Mr. Waugh and Mr. Yaeger testified that the issues involved in the file would not necessarily be evident at the time of assignment of the file, and Mr. Waugh testified that the Tax Auditor 2's and Tax Auditor 3’s, as well as the Tax Auditor 3 underfills all worked on the same bank of files in the unit. It was Mr. Yaeger's evidence that it was the responsibility of the auditor, when faced with an issue too complex for his or her level of competence, to raise the matter with the supervisor. Mr. Yaeger's evidence was that there was no such thing as a Tax Auditor 2 file or a Tax Auditor 3 file, only Tax Auditor 2 issues and Tax Auditor 3 issues. When asked in chief how a Tax Auditor 2 would know if he had been given a Tax Auditor 3 issue, his answer was that he would know because he wouldn't be able to handle the issue. Mr. Waugh's evidence was that all the work done in the field visit training unit was the same, and that one would not know if one was doing different work from anyone else. He testified that while in the audit centre the figure of $15 million in revenues was used as a general guideline in the assignment of audit files, in the field visit training unit the files were basically the same and there was no assignment of more complex cases to the Tax Auditor 3's because one did not know the complexity of a given file until one had embarked upon it. 6 Mr. Frankland testified that he expected that the supervisors under his direction were assigning audits with a view to their complexity, but he did not make any of the work assignments himself. Mr. Frankland's evidence as to Mr. MacIsaac's earlier complaints about the underfill position was consistent with the evidence of Mr. MacIsaac, namely that Mr. MacIsaac expressed a view that he was already fully and sufficiently qualified to be appointed unconditionally to the Tax Auditor 3 position. It is the employer's contention that Mr. MacIsaac cannot be believed when he says that he did not acquire a belief that he had a complaint about his pay as an underfill Tax Auditor 3 until he had experienced about a month of having been a full Tax Auditor 3. The employer argues that because the auditors of different classifications work closely together and talk to each other all the time (Mr. Yaeger's evidence), the Grievor had to have known all along that he had a cause for complaint because he had to have been aware of the work being done by a Tax Auditor 3 and therefore aware of the fact that his work was no different. The employer takes the position, however, that while Mr. MacIsaac was on underfill, he was not doing the work of a Tax Auditor 3. Mr. Yaeger's explanation of a "Tax Auditor 3 issue'' is, I find, not quite satisfactory. His evidence was that a Tax 7 Auditor 3 issue is one which a Tax Auditor 2 is not able to handle. If that is the case, then what is or is not a Tax Auditor 3 issue will fluctuate and vary with the degree of knowledge, sophistication and experience of each Tax Auditor 2. Such a definition appears to me to be untenable. The more probable and acceptable view of the situation is: (a) (b) There is a continuum of complexity in the files; That generally it is not possible to predict with any exactitude the complexity of the issues that will arise in any particular audit file without actually getting into the audit; (c) A relatively random assignment of work from the bank of files in the field visit training unit was done among the Tax Auditor 2's, Tax Auditor 3's and Tax Auditor 3's underfills with a responsibility placed on the individual auditors to seek assistance where needed. The employer's rather startling argument is, in essence, that the Grievor had to have known all along that he had a complaint about a state of affairs (namely the fact he was doing Tax Auditor 3 work), the existence of which the employer itself denies. If one accepts the employer's contention that the Grievor was not doing Tax Auditor 3 work, then its motion for dismissal for untimeliness must fail. Otherwise, we would be punishing the Grievor for not complaining about a state of affairs that did not 8 exist and that clearly would be an absurd result. If we accept the proposition that the work was the same, that does not put an end to the matter, because the issue remains as to when the Grievor came to a subjective awareness of the fact. Based on the testimony we have heard, I am of the view that there is insufficient evidence to conclude in these circumstances either that subjectively the Grievor held the belief more than 20 days prior to November 26, 1990, that he had a complaint, or that he objectively ought to have had such a belief or awareness until he had had some actual experience of what it was to be a Tax Auditor 3. Where the employer represents to the employee as it did here, that the essence of the underfill position was the training process, the employee could reasonably expect that at the end of his underfill period and upon a change of his status, there would be an accompanying change in the degree of responsibility, skill, knowledge and performance expected and required of him. Mr. MacIsaac's testimony was that only when he learned that the change of status was not accompanied by the expected corresponding change of function did he realize that he had a grievance. This was the only evidence as to his state of mind and was credible. His earlier complaints were on the issue of promotion to a full Tax Auditor 3 status and there was no evidence that the Grievor had an earlier subjective awareness of a complaint about his pay. Accordingly, the employer's motion is dismissed. 9 The employer has also raised the argument that the "20 day rule" applies to any award which may be open to the Grievor. It is contended that if this is a continuing breach of the Collective Agreement, the 20 day rule as to retroactivity applies and there are no exceptional circumstances militating against its application. The Union is not prepared to accept the proposition that this is a case of a continuing breach, but as the issue is premature, no decision having been made on the issue of whether or not a breach has occurred, we will defer this matter until we have heard the grievance on the merits, and the parties will have an opportunity to make submissions on the point in due course. DATED this 4th day of March, 1992. "I Dissent" (dissent attached) FRED COLLICT DISSENT Re: G.S.B. #2931/90 (G. MacIsaac) This Member dissents with the majority award concerning the preliminary objection, for the following reasons. The class standard for Tax Auditors (T.A's) is a technical professional position within the Ministry of Revenue. The difference between the various levels of T.A.1, T.A.2 and T.A.3 in the series is somewhat blurred" and, essentially the level to which one is assigned is based upon the training, experience and qualifications one has attained relative to the complexity of issues to be dealt with in the various files that are to be handled. It is common ground between the parties that complex issues may occur in low gross revenue files and vice versa; and that, therefore, in the assignment of files a T.A. (regardless of level) might receive a file which, upon detailed review, is found to have an issue that he cannot handle; with the results that the file is returned to the supervisor and it is reassigned to a more qualified T.A. This process happens at each of the three T.A. levels; and even at the T.A.3 level discussions may be required with the supervisor or a tax specialist on a more complicated tax issue. The evidence of Mr. Yaeger was that the auditors are seated side by side; that they discuss the tax issues in detail; and that T.A.3's do more research on the Tax Bulletins and confer with each other on matters in the Tax Statutes. His evidence was that, "T.A.2's know what is T.A.2 work and what is T.A.3 work." -2- The evidence of Mr. Waugh, supervisor of the grievor, April to October 1990, was that, if he knew in advance that a file was complicated, he would assign it to a T.A.3. Also, he stated that specific, complicated tax issues, such as a Section 85 rollover" definitely would be assigned to a T.A.3 In effect, there are certain complicated tax issues that are assigned solely to T.A.3's. In the late fall of 1989, Mr. MacIsaac applied to a competition for a T.A.3 position. He was not accepted as a T.A.3, but was appointed on an underfill basis owing to the opinion of the competition panel that he did not have sufficient experience to be appointed as a fully qualified T.A.3. Mr. MacIsaac had been a T.A.2 for more than two years prior to this appointment. In a discussion with Mr. Frankland on December 24, 1989, Mr. MacIsaac objected to the underfill appointment. In his opinion he was qualified to be a T.A.3 and should have been so appointed. His specific testimony was, “I was told that I needed more experience but I thought I had the qualifications" In response to the question of whether or not the knew what a T.A.3 did, he stated, “I had a basic idea" Approximately six months after his underfill appointment (June, 1990), Mr. MacIsaac approached Mr. Frankland again and complained about the assignment of another employee to full T.A.3 status, without an underfill period. Mr. MacIsaac contended that the person so assigned was not as experienced as he and that he, (MacIsaac) should have full T.A.3 status. Once again Mr. MacIsaac was informed that he would remain on underfill status. -3- Mr. MacIsaac came off underfill status on October 19, 1990. In a memo dated November 26,1990, Mr. MacIsaac requested reasons why he was not given a salary increase to the T.A.3 Level 1 effective from January 27,1990. His request was denied for reasons owing to the underfill training assignment to which he had been assigned over the period in question. Mr. MacIsaac submitted a grievance dated December 17,1990 claiming improper payment for the period January 22 to October 21,1990. The preliminary objection before the Board is one of timeliness of the subject grievance. Counsel for Mr. MacIsaac stated that the issue for this Board is the determination of, when did Mr. MacIsaac become subjectively aware of the fact that he had a grievance? (Pierre) Article 27.2.1. of the C.A. is as follows: "27.2.1 An employee who believes he has a complaint or a difference shall first discuss the complaint or difference with his supervisor within twenty (20) days of first becoming aware of the complaint or difference." Clearly, therefore, the issue before this Board is not as advanced by counsel for the Union; that is, - the determination of when Mr. MacIsaac became subjectively aware of the fact that he had a grievance. Rather, as provided for in Article 27.2.1 above, the issue before the Board is the determination of, - when did Mr. MacIsaac believe, or become subiectively aware of the fact that he had a complaint or difference with the actions of management. -4- Although the distinction is delicate, it is clear that the word “grievance" first appears in the Grievance Procedure of Article 27 in Article 27.3.1. Article 27.1, 27.2.1 and 27.2.2 make reference solely to a complaint or difference; and it is in Article 27.2.1 that the 20 day mandatory time limit (as established in G.S.B. jurisprudence) is stated; and it is in Article 27.2.2 that the additional time limit requirements (10 days) are stipulated and must be met with reference to the further processisng of a complaint or difference. In the opinion of this Member, Mr. Maclsaac "sat on his rights". He failed to follow through on his complaint (or difference) within the time limits set out in Article 27 of the C.A. It is the contention of Mr. MacIsaac that he did not know he had a COMPLAINT or DIFFERENCE until after October 19, 1990 when he was appointed to the T.A.3 level. In the view of this Member, this contention is not credible, for the following reasons: 1. Mr. MacIsaac had worked as T.A.2 on desk audit for more than two years prior to the underfill appointment During this period he worked side by side with other T.A.2's and fully qualified T.A.3's and was assigned a variety of files that had tax issues of varying levels of complexity that would be performed by either T.A.2's or T.A.3's. He and his Colleagues discussed these tax issues. This was the evidence of both Union and Employer witnesses. 2. Throughout the nine month underfill period, the same collegial practice obtained (with reference to discussion of tax issues, problems, etc.) within the grievor's unit which was operating, in the field, in a training mode. -5- 3. 4. 5. 6. On December 24,1989 in a discussion with Mr. Frankland, Mr. MacIsaac contended that he had the experience and qualifications for a T.A.3, that he should be so assigned and that he should not be assigned on an underfill basis. In cross examination Mr. MacIsaac conceded that he had a "basic idea" as to what a T.A.3 was required to do. In June of 1990, (almost six months prior to the filing of a grievance) Mr. MacIsaac complained once again about his underfill status and brought to the attention of management his contention that he was more qualified than another employee who had been appointed to full T.A.3 status. He clearly, had both a belief and a difference which he discussed with his management, (as per Art. 27.2.1). In effect, he believed he had a complaint within the meaning of Article 27. On November 26,1990 Mr. MacIsaac forwarded a memo to Mr. Frankland expressing his complaint or difference to the effect that he had not been properly paid since January 27,1990. Notwithstanding all of the above, Mr. MacIsaac contends that it was not until after he was assigned full T.A.3 status on October 22,1990, that he finally became aware that he now had a complaint; for now, as a T.A.3, he was doing nothing different from that which he did while on underfill status. Only now, it is argued, did Mr. MacIsaac become subjectively aware that he had a legitimate complaint. -6- In the opinion of this Member, Mr. MacIsaac subiectively believed, (as per Article 27.2.1 of C.A.), that he had a complaint or difference relative to his status as early as December 24,1989. He pursued this complaint on December 24,1989 with Mr, Frankland; and again in June and November of 1990. Moreover, he knew the different types of work performed by the T.A.2 and T.A.3 levels of auditors. This was not a "grand revelation" that greeted Mr. MacIsaac in late October and early November of 1990. By his own testimony he knew the method of assignment of files at both the desk audit and field levels; and he knew that the more highly technical tax issues were assigned to the more highly classified auditors. Mr. MacIsaac is an informed, knowledgeable, and professional auditor with a professional accounting designation. He is not a junior clerk! In the view of this Member he subiectively and genuinely believed in December 1989 that he was both qualified and sufficiently experienced to perform at the full T.A.3 level. He subiectively believed this in June and November of 1990 and, presumably throughout the whole period of the underfill assignment. Accordingly, he had, and in fact, he believed he had a difference or complaint with management on this issue; and he brought it to the attention of Mr. Frankland on at least three separate occasions. However, he failed to pursue the process set out for pursuit of such differences as provided for in Article 27. Therefore, he failed to meet the time limits set out in Article 27 of the C.A. In the view of this Member, the preliminary objection relative to time limits in this grievance should have been upheld by this panel.