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HomeMy WebLinkAbout1988-0379.Burrows.89-05-30 ~ ' ON~'ARfO EMPL OYES DE LA COURONNE '~ CROWN EMPLOYEES DE L'ONTARIO GRIEVANCE C,OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS ~TREET WEST, TORONTO, ONTARIO. MSG. IZ8 - ~UITE 2'100 TElEPHONE/TELePHONE 18~, RUE DUNDAS OUEST, TORONTO, (ONTARIO) MISG IZa - BUREAU 21~0 (4 ?8} 598-z~8~ 0379/88 IN THE I~IATTER OF AN AR~ZTRATZON Unde~ THE CROWN EHPLOYE£S COLLECTZVE BARGAINING ACT Before THE GRIEVANCE SETTLEHENT BOARD Between: OPSEU (T. Burrows) Grievor and The Crown in Right of Ontario {Ministrylof Labour) Employer Before: M. Mitchnick Vice-Chairperson T. Kearney . Member D. Andersen Member For the Grievor: P.J. Lukasiewicz Counsel Gowling & Henderson Barristers and Solicitors For the Employer: S. Sapin Staff Relations Officer Ministry of Labour Hearing: October 3, 1988 , 379/88 AWARD The grievor, Tom Burrows, is claiming *under Article 23 of the collective agreement for travel time incurred outside of working hours. Article 23 provides: ARTICLE 23 - TIME CREDITS wHILE TRAVELLING 23.1 Employees shall be credited with all time spent in travelling outside of working .hours when authorized by the ministry. 23.2 When travel is by public carrier, time will be credited from one (1) hour before the scheduled time of departure of the carrier until one (1) hour after the actual arrival of the carrier at the. destination. When travel is by automobile and the employee travels directly from his home or place of employment, time will be credited from the assigned hour of departure Until he reaches his destination and from the assigned hour of departure from the destination until he reaches his home or place of employment. 23.4 When sleeping accommodation is provided, the hours between eleven (11:00} p.m. and the regular starting time of the employee shall not be credited. 23.5 When an employee is required to travel on his regular .day off or a holiday listed in Article 47 (Holidays), he shall be credited with a minimum of four (4) hours. 23.6 All travelling time shall be paid at the employee's basic hourly rate or, where mutually agreed, by compensating leave. The grievor has been an inspector with the Ministry of Labour since 1980, and was classified throughout the relevant period as a Schedule 6 District Inspector for the Mining Health and Safety Branch. It is conceded in this matter that Mr. Burrows is entitled to be paid travel time, as was the Schedule 6 grievor in a decision of the Grievance Settlement Board referred to as Fawcett (case #275/82, issued May i, 1984), and the only issue before the Board is the period of retroactivity. The grievor, it might be noted, had, prior to joining the Ministry, extensive experience as a Union representative, including a period as a temporary business agent for the United Steelworkers of America. When he decided to take the job with the government, however, he had to promise his wife that he would not allow himself to get involved in Union.affairs, and the grievor has been true to his promise. In July of 1984, the Fawcett decision upholding the claim for travel time came to the attention of the grievor, and the grievor, noting that Fawcett was also a Schedule 6 employee involved in extensive travel (with the Ministry of Transportation and Communications) telephoned Mr. Viril Peperkorn, his own Ministry's Chief Classification and Staff Relations Officer, to ask him "when we were going to get some money". As the grievor recalls it, Mr. Peperkorn advised him that the decision to which he was referring was being appealed, and the grievor's response was: "Okay, we'll wait and see what happens"' The grievor testified that he agreed there was little purpose in pressing the matter any further at that point, because if the appeal were successful, that was itfor the claim, and if it were not, the Ministry could be expected "to do the right thing". The' grievor went on to explain that he had had dealings with Mr. Peperkorn in the past, and that Mr. Peperkorn preferred to see matters dealt with without the need for formal grievances, and that "Pep always came through for you". The grievor had had one particular experience of that kind on a competition grievance of his own, and as well had been with the Ministry in 19827 when an inspector in the Sudbury office had grieved that~ he was in fact doing the work of an Engineer. That grievance was successful, and as a result, the grievor recollects, the Ministry agreed that an adjustment should be made with respect to ali of the inspectors in the field. For the reasons given therefore, the grievor did not formally grieve following-his July 1984 conversation with Mr. Peperkorn, but rather was content to allow the appeal process to run its course. A number Of years in fact went by without the grievor hearing anything, but that did not strike the grievor as unusual, given the experience he had had with appeals to the courts'in the past. In late March of 1988, however, he overheard a discussion in the London office of a grzevance that had gone in for "on-call" pay, and this prompted him to put in a call to Mr. Peperkorn to se how the "Fawcett" matter was proceeding. Mr. Peperkorn advised ~im that the "Fawcett" appeal had been withdrawn, and told the grievor that he was entitled to the payment for travel time. The grievor accordingly asked Mr. Peperkorn. when he would be getting the money, but Mr. Peperkorn was non-committal, responding that he "has nothing to do with that". From that it appeared to the grievor that he had better file a grievance, and he'went over the terms of the collective agreement (specifying what times are and are not paid for those entitled) before setting out his claim. He discussed the matter with his direct supervisor, the Area Engineer Marcel D'Jivre, on April 6th, and tken filed his grievance in writing on April 13th, claiming travel time to 11 p.m. when on the road and required to stay over in a hotel, for the period extending back to the date the Fawcett case had been decided (May 1, 1984). Mr. Peperkorn's recollection of events differed somewhat from that given by the grievor, but not in any way that would be material. He recalls the grievor calling him in 1984, and asking him about the decision in "Fawcett". Mr. Peperkorn testified was not then aware of the decision in that case, and so called the Staff Relations Branch at the Civil Service Commission. The advice he received there was that the GSB-'s decision was being taken to judicial review, and that the Ministries were accordingly not to do anything further on it at that time. Mr. Peperkorn believes he called th~ grievor back and passed on to him exactly what the Staff Relations Branch had said. Mr. Peperkorn does not recall.the'grievor making any specific mention of a grievance at that time, but acknowledges that he assumed that the point of the call was that the grievor, like ar..Fawcett, was a Schedule 6 employee, and was similarly entitled to 5i~' travel time. Mr. Peperkorn testified that he did not think further about the matter because, as the Commission had said, the matter was under appeal. Beyond that, however, he noted that the Fawcett decision involved the Ministry of Transportation and Communication, and .not the Ministry of Labour, and that his own Ministry had always had a practice of discretionary time off for extra work-time, including, he had' always assumed, travel time. In the spring of 1988, however, the,Ministry was faced with a grievance from the London office involving travel time. The Ministry again sought the advice of the Staff Relations Branch, and was told that the Fawcett award was now to be followed. Acc0rdingly, the Ministry.made a decision to honour all such travel-time claims, back to April 1, 1988. That was made known to the grievor at least by the second step meeting on his grievance, and at that meeting it was further inBicated that the Ministry was prepared to pay the grievor back 20 days from the time he first raised the matter with his own supervisor, Mr. D'Jivre. Mr. D'Jivre himself did testify, mainly on the subject of his'Dractice respecting discretionary time off for overtime. The Mining Health and Safety Branch's policy on such time off is set out in the Branch's Operations Manual, which is issued to all staff. As of May 1984, it provided: Number: 3.09 Date: May, 1984 Page: 1 of 1 Administrative Procedures Overtime 1. Application All field staff in the branch are assigned to Schedule 6. In accordance with Article 13.7.1 and Article 19.6 of the Collective Agreement"- 13.7.1 "~mployees who are in classifications assigned to Schedule 6 and who are required to work on a day off, shall receive equivalent time .off." 19.6 "Notwithstanding anything in Article 19, employees' who are in classifications assigned to Schedule 6 and who are required to work on a holiday included in Article 47 (Holidays) shall receive equivalent time off." 2. Procedure Where additional hours are worked _ during the week, discretionary time off may be gr~nted by mutual agreement between the employee and supervisor... Mr. D'Jivre (who became acting Area Engineer around October of 1985) acknowledged in reading those provisions that there is no mention of "travel time" being included as time worked. 4Ne testified, however, that it has always been his practice to treat'travel time in the same way as any other activity recorded on the inspectors' Activity Reports, and that he takes that into account in deciding whether an employee has accumulated ~nough credits to qualify-for any requested time off.. He acknowledged that he has never told employees or the Union that that is his practice, because everyone is aware of it. The policy was in fact revised in October of 1986, and now specifically mentions travel time as follows: Number: 9.05 Date: October 1986 Page: i of 2 Management Procedures Approve Discret.ionary Time Off 1. Definitions "Scheduled hours" means 7 1/4 hours per day 36 1/4 hours per week. "Required to work" refers'to hours required by the supervisor, or hours necessary to complete a legislated or assigned duty and includes travel time. 2. Application On occasion Branch staff are required to work in excess'of their normal scheduled hours. All field staff are assigned to Schedule 6 and therefore do not rec'eive overtime pay. ,Depending upon the circumstances, field staff may receive equivalent time off. Support and Administrative staff a~e not in Schedule 6 and therefore receive overtime pay upon the approval of the Director... For the grievor's part, however, he testified that he was not aware that he was entitled to claim compensating time off for travel time, and that he has never done so. He added that he was told at the time of hiring that discretionary'time off was available, but only for extra time worked, and that a group of inspectors had tried to claim it for travel time in 1982, but were turned down. The Ministry provided hO.records to contradict the grievor's claim that he had never claimed discretionary time off for travel time, and in fact does not suggest to the Board that we ought to find that the grievor is not telling the truth. Rather, the Ministry simply argues that that was the practice that was available during the relevant time period, and if the grievor failed to take advantage of it, he is simply' now out of luck. The Ministry argues that the grievor's claim under the Fawcett award must be limited to the 20 days preceding the date of his grievance, and that, in light of the practice of discretionary time off tha% had otherwise been available to him, he is estopped from now going back in time to claim overtime on a cash-payment basis. The Board in Baldwin and Lyn~ (case #539/84), issued April 13, 1988) had occasion recently to review its jurisprudence on the question of retroactivity,~ and, commencing at page 8 of the decision, explained its position as follows: The material provisions of the collective agreement affecting the question of retroactivity are: 27.1 it is the intent of this 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 is 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. The Board's jurisprudence has interpreted from those provisions that the normal cut-off for the retroactive adjustment of a grievance is 20 days prior to the date that the grievance was actually filed. The decision goes on to note, however, on the same page: _ But the cases have, on the other hand, made it equally clear that that is not~a hard-and-fast rule. As expressed in Re Smith, for example, case #237/81, issued March 5, 1985, at pages 6 and 7: The usual rule is that, barring the existence of circumstances which would make it inequltable for the Ministry to rely upon it, retroactivity Will be limited to the period of time within which it was permissible for the grievor to file his grievance. In the case of this collective Agreement, that period is 20 days prior to the day upon which the grievance actually was filed. See Re OPSEU and Ministr~ of the Attorney-General, G.$.B. 71/76, in which the Board stated: "While it is, in our view,, clear that the employer failed to comply with the provisions of Article 10.3 throughout the period from January 28, 1976, we do not believe that these employees who initiated their complaint only on May 25, 1976, may properly claim relief throughout that. period. To the contrary, and to hold otherwise, would be to improperly penalize the employer for the breach of an a~reement of which it was not aware. Thus, where as here, the breach of the agreement is in the nature of a continuing one, boards of arbitration have consistently limited an employee's right to claim damages for the breach of the agreement to the period of time within which it was permissible to file his grievance. Re: Union Gas Co. of Canada Ltd. (1972), 21 L.A.C. (2d) 45 (Weatherill). Ee: Automatic Screw Machine Products Ltd. (1972), 23 L.A.C. 396 (Johnston). Re: National Auto Radiative Manufacturing Co. (1967), 18 L.A.C. 326 (Palmer)'~. (emphasis added) The Board in Baldwin and Lyn9 then elaborated on the "exceptions" to that rule, commencing at page 11 of its award, an~ citing the following excerpt from the case of Re Hooper (GSB #47/77): 'With respect, this case does not limit recovery in every situation to the date of filing.a formal grievance. Here the grievor had made his "complaint" on or before September 1, 1985 in the form of a request for reclassification. His request apparently met wi~h at least tacit approval from everyone concerned except the classification officers of the Civil Service Commission, who alone were empowered to make the final decision. In such circumstances, it would have been premature for the grievor to file a formal grievance until it appeared that his request would be refused. Nevertheless, the evidence clearly establishes that the job content on which the present grievance is based existed before September i, i975 and that responsible officials of the Employer had received and were considering the grievor's request by that date. As none of the subspquent delay in decision-making can be laid to the grievor, he is entitled to be considered to be improperly classified as of September 1, 1975, and we so find. At page 14, the Board in Baldwin and Lyn~ sets out the competing policy considerations on the question of retroactivity as follows: There was before the Grievance Settlement Board on this same point and at the same time as Re: Lowman, the case of Re: Boyle, being ' 4675/85, and which issued two days later than Re Lowman. The Board in Be Boyle aptly set out the competing policy considerations which surround this issue of retroactivity, and more specifically, of the kinds of circumstances which have led the Board to carve out exceptions to the "20-day" rule. At page 15, the Board wrote, in addressing the issue of a retroactive date: A more appropriate date would be July.24, 1984 when the Ministry did expect that all the clerks be "fully knowledgeable" on all of the four main functions. However, to choose that date would be to ignore that tine of cases which have limited compensation to a period 20 days prior to the date of the grievance. Those cases reflect the view that where there is a continuing course of conduct which can be the subject of a grievance at any time, i.e. a continuing grievance, "grievors" who postpone their decision to grieue and seek relief should not be able to claim compensation retroactively to a point in time when they could have but did not grieve. There are sound policy reasons which support that approach. If there are disputes or differences between the parties they should be aire~ and not permitted to simmer. Yet there is a competing policy which comes into play in this case. That is the policy in favour of settling disputes short of invoking 'the grievance procedure and. having recourse to the Grievance Settlement Board. A rigid application of the "20 day rule" would discourage employees from attempting through less formal means to settle their dispute. (again emphasis added) Those comments, it appears'to us, point convincingly to the position adopted by the Union in the present case. Unlike, one assumes, the bulk of Schedule 6 employees potentially affected by the Fawcett decision, the grievor made the~ connection with his own case at once and immediately took action to register his claim with Mr. Peperkorn, an appropriately-placed individual intended Dy the Ministry to handle such matters, and with whom the grievor had dealt in the past. But Mr. Peperkorn quite reasonably suggested, in effect, that the grievor ought to wait and see what happened with the appeal, and the grievor just as reasonably agreed. The grievor did then let the matter sit for a 'considerable period 'of time; he had, however,' placed the matter in the hands of Staff Relations management, expecting them to monitor the situation and, if and when the time came, "do the right thing". And it is not difficult, to accept the grievor's evidence that, based on past experience, the matter of appeals to the Courts can involve a matter of years. ~ There is' in fact no evidence before us as to when that "appeal" was in fact withdrawn - for all we know, it could have been some time closer to 1988 than 1984 - but in any event, what prejudice can the Ministry be said to have suffered as a result Of the grievor's patience and trust? The Ministry does not, before us, raise any defence to the Fawcett award, ultimately accepted by it, and the logical extension of that is, that if the grievor had re-opened the discussion earlier, the Ministry would simply have been told by the Civil service Commission, assuming the appeal had by then been abandoned, to apply the decision in Fawcett to .all employees in the grievor's position that much sooner. As it is, the grievor ..is the only individual befo're us who explicitly registered his claim at the time Fawcett first appeared, and he is the only one thus in a position to ask to have his claim back-dated to that point, now that the status of the Fawcett ca~e itself has been confirmed.. We can, .in accordance with the jurisprudence of the Board above, think of no reason in policy or equity to now deprive the grievor of the fu~l benefit of the - 14 - claim he so clearly drew to management's attention in' July of 1984. Rather, we find, in accordance with the language of the collective agreement, that the grievor reasonably chose to wait, as Mr. Peperkorn suggested, until the appeal on Fawcett had been disposed of, and that he in fact could be said to have had no "complaint" or "difference" which required processing until Mr. Peperkorn advised the grievor that the appeal had been withdrawn,, but that the grievor still might not be granted any money. The grievor is accordingly entitled to now have his claim under Article 23 assessed and honoured from the point that he first raised it, or more.specifically, from the date that the decision in Fawcett, on which it was based,'was issued. As agreed, the Board will remain seized of the mattpr in the even% the parties are unable to reach a consensus on the amount of compensation thus payable.. DATED AT TORONTO THIS 3_Otb DAY OF May, I989. .~ M. G. Mitchnick ~ V~ce-Chair~erson ' ~ T.-J. Kearney - Member D. Andersen - Member .