HomeMy WebLinkAboutGruchalla 88-12-12 HEADNOTE
Article (s): 11
OPSEU (Gruchalla) vs. George Brown College, Award dated December
12, 1988 (D. Carter)
Facts:
Grievor filed grievance claiming that he had been incorrectly
placed on the salary grid at the time he was hired. Grievor was
hired in September 1982 but did not grieve until November 1987.
College allowed grievance retroactive to September 1987.
Issue:
Extent of College's retroactive liability.
Decision:
Grievance denied on the basis that the time limits in the
collective agreement restrict the board's jurisdiction to grant a
retroactive remedy. Reviews case law between the parties on the
effect of time limits restricting the retroactivity of remedial
relief. By allowing retroactivity to September 1987, College did
not waive its right to invoke time limits to restrict its
liability.
~ ~ ic
IN THE MATTER OF AN ARBITRATION
BETWEEN: GEORGE BROWN COLLEGE
The Employer
AND ONTARIO PUBLIC SERVICE EMPLOYEES
UNION
The Union
AND IN THE MATTER OF THE GRIEVANCE OF R. GRUCHALLA CLAIMING
RETROACTIVE PAY. (OPSEU File No. 88A083).
BOARD OF ARBITRATION: D.D. CARTER, CHAIR
R.J. GALLIVAN, EMPLOYER NOMINEE
J. McMANUS, UNION NOMINEE
APPEARANCES:
For The Employer: A.E. Burke, Counsel
S. Layton, Director of Human Resources
J. Hague, Chairperson Math and
Sciences
For The Union: B. Herlich, Counsel E. Lord, President, OPSEU Local 556
R. Gruchalla, Grievor
A hearing in this matter was held in Toronto on October ~25, 1988.
2
AWARD
This grievance raises the issue of the extent of the
College's liability where an employee has been incorrectly placed
on the salary grid a~ the time of hiring. The grievor, Richard
Gruchaila, was first hired in September of 1982 but did not
grieve his original placement on the salary grid until November
6, 1987, at which time he claimed "the retroactive amount of
monies owing resulting from the error, together with interest
5hereon." In its replies to this grievance the College accepted
the grievor's claim that greater credit should have been given
for his educational qualifications and prior working experience,
but was only prepared to allow retroac~ivity to September 1,
1987.
The parties agreed that the applicable collective
agreement was the one referring to the period September 1, 1985
to August 31, 1987, ~he terms of which had been extended by
operation of the Crown Employees Collective Bargaining Act. The
relevant provision of that collective agreement are set out
below:
3.02 Determination of starting salaries and
progression within the salary scales shall be in
accordance with the College's Classification Plans
dated August 1975 and as set out in ~he "Guidelines for
the Impiementaion of Salary AdjustmenTs and the
Classification Plans" and the application to certain
present employees above the maximum scale shall
continue as set out in the "Guidelines" a~ached
hereto, which also sets out the terms of reference of
the Joint Educational Qualifications Sub-Ccmmi5see.
11.01 Sections 11.01 to 11.05 inclusive apply to an
employee covered by this Agreement who has been
employed continuously for at least the preceding four
(4) months.
11.02 Complaints
It is the mutual desire of the parties hereto that
complaints of employees be adjusted as quickly as
possible and it is understood that if an employee has a
complaint, the employees shall discuss .it with the
employee's immediate Supervisor within twenty (20) days
after the circumstances Giving rise to the complaint
have occurred or have come or ought reasonably to have
come to the attention of the employee in order to give
the immediate Supervisor an opportunity of adjusting
the complaint. The discussion shall be between the
employee and the immediate Supervisor unless mutually
agreed to have other persons in attendance. The
immediate Supervisor's response to the complaint shall
be given within seven (7) days after discussion with
the employee.
11.03 Grievances
Failing settlement of a complaint, it shall be
taken up as a grievance (if it falls within the
definition under Section 11.12(c) in the following
manner and sequence provided it is presented within
seven (7) days of the immediate Supervisor's reply to
the complaint. It is the intention of the parties that
reasons supporting the grievance and for its referral
to a succedding Step be set ou~ in the grievance and on
the document referring it to the next Step. Similarly,
the College written decisions at each step shall
contain reasons supporting the decision.
Step No. 1
An employee shall present a signed grievance in
writing to the employee's immediate Supervisor setting
forth the nature of the grievance, the surrounding
circumstances and the remedy sought. The immediate
Supervisor shall arrange a meeting within seven (7)
days of the receipt of the grievance at which the
employee, the Union steward, if the steward so
requests, the Dean of the Division and the immediate
Supervisor shall attend and discuss the grievance. The
immediate Supervisor and Dean will give the grievor and
the Union steward their decision in writing within
seven (7) days following the meeting. If the grievor
is not satisfied with the decision of the immediate
4
Supervisor and Dean, tke grievor shall present the
grievance in writing at Step 2 within fifteen (15) days
of the day the grievor received such decision.
Step No. 2
The grievor shall present the grievance to ~he
Presiden~ oX the College concerned. The President or
the President's designee shall convene a meeting
concerning the grievance, at which the grievor shall
have an opportunity to be present, within twenty (20)
days of the presentation, and shall give the grievor
and the Union steward the President's decision in
writing within fifseen (15) days following the meesing.
In addition to the Union steward, a Union staff
representative shall be present a~ the meeting herein
if requested by the employee, the Union or the College.
The President or the President's designee may have such
persons or counsel attend as the President or the
President's designedd deems necessary.
In the event any difference arising from the
interpretation, application, administration or alleged
contravention of this Agreement has not been
satisfactorily settled under the foregoing Grievance
Procedure, the matter shall then, by notice in writing
given to the other party within fifteen (15) days of
the date of receipt by the grievor of the decision of
the College official at Step No. 2, be referred to
arbitration as hereinafter provide.
11.04 (d) The Arbitration Board shall not be
authorized to alter, modify or amend any part of the
terms o~ this Agreement nor to make any decision
inconsistent therewith nor to deal with any matter that
is not a proper matter for grievance under the
Agreement.
11.05 (a) If the grievor fails to act within the time
limits set out at any Complain~ or Grievance Step, the
grievance will be considered abandoned.
11.12 (c) "grievance" means a complaint in writing
arising from the interpretation, application,
administration or alleged contravention of this
Agreement.
The union argued that, since the employer had allowed
the grievance on its merits, our mandate was simply to determine
the appropriate extent of damages to be awarded to the grievor.
5
In the circumstances of this case, according to counsel for the
union, the grievor's right of recovery should not be limited by
the time lim±ts set out in the collective agreement as the
conduct of the employer at the time of hiring had kept the
grievor ignoran~ of his rights. The union, therefore, argued
~hat the grievor was entitled to an adjustment retroactive ~o The
date of his hiring or, alternatively, at leas5 to the
commencement of the collective agreement under which this
grievance arose.
The union also sought to introduce evidence relating to
retroactive adjustments made prior to hiring of the grievor.
Counsel for the employer objected to this evidence as not being
relevant to the resolution of the matter before us. A majority
of the board ruled thaT, without receiving the evidence at this
poin5 in The proceedings, it was still appropriate to move on to
argument to determine if such evidence might have any bearing on
the outcome of this grievance. If the board should 5hen decide
that such evidence was relevant, a further hearing could be
scheduled 5o receive these further facts.
In its argument the employer emphasized that by virtue
of article 11 of the collective agreement this board only had
jurisdiction to deal with a grievance arising under this
particular collective agreement, and not any previous agreements
between the par%les. Moreover, because of the mandatory nature
of 5he time limits in this collective agreement~ our jurisdiction
to grant a retroactive remedy was expressly restricted. In this
6
case, according to counsel for the employer, the grievance was
only arbitrable because it could be treated as a continuing
grievance in which case the time limits still operated to
restrict the retroactivity of remedial relief.
A number of prior arbitration awards were cited by
counsel for both parties. Greater weight, in our view, should be
given to those awards arising ou~ of the instant collective
agreement, or other agreements between the colleges and the
union. These awards are more persuasive because they better
reflect the mutual expectations of the parties to this
arbitration than do awards arising from different industrial
relations contexts.
An award almost directly on point is Re Conestoga
College and Ontario Public Service Employees Union, Augus~ 18,
1987 (Kates) . In that case the board held that the grievor had
been improperly credited under the classification plan when she
was first hired in 1981, but still refused to provide the
retroactive relief that was requested. Tha5 board made it clear
tha~ it was not prepared to treat the grievance before it as
other than being filed under the then current collective
agreement. In doing so, however, it did suggest that it might
have some "equitable jurisdiction to override the strictures of
the instant collective agreement in awarding retroactive
relief..."
This suggestion must be examined in the light of other
arbitration awards arising out of the colleges - OPSEU bargaining
7
relationship. These awards clearly contemplate that, in the case
of a continuing grievance, the time limits set out in the
collective agreement operate so as to limit the retroactive
effect of remedial relief. See Fanshawe College, October 24,
1983 (Brunner); Fanshawe College, May 9, 1983 (Brent); Seneca
College, November 23, 1983 (Delisle). From these awards we must
conclude that, as a general rule, a retroactive remedy is not
available in the case of a continuing grievance under this
particular collective agreement.
Counsel for the union submitted that, despise this
general rule, we could still exercise some form of equitable
jurisdiction to grant retrospective relief in the circumstances
of this case. While this argument is intriguing, we find it
unnecessary to make a decision as to whether we could exercise
such a mandate. The facts of this case, even as alleged by
counsel for the union, are simply not sufficient to support the
exercise of such a jurisdiction. In particular we do not
consider that there is sufficient evidence to establish that the
employer misled the grievor about his rights to recourse under
the collective agreement. At the time of hiring it is clear that
the grievor did question his placement on the salary grid and was
advised that the grievance procedure was available to him. While
i~ is understandable that the grievor was reluctant to initiate a
grievance while still in the probationary stage of his
employment, there is no evidence that the empleyer in any way
attempted to prevent him from asserting his rights under the
8
grievance procedure. Moreover, it is difficult to understand how
the prior settlement of other claims prior to The hiring of the
grievor, could mislead the ~rievor as to his recourse under the
collective agreement. While we can understand that the grievor
considers that he has been short changed by the employer's
refusal of retroactive relief, this factor alone is not
sufficient to support a claim for equitable relief in light of
The clear time limits in the collective agreement.
A final issue to be addressed is whether the employer,
when it conceded the merits of the grievance, waived it rights to
rely upon the time limits to restrict remedial relief. A review
of 5he employer's response to step I of the grievance indicates
that at the very outset of the grievance procedure the employer
was resisting the grievor's claim for retroactivity. While the
employer did allow retroactivity to September 1, 1987, this
limited concession, in our view, cannot be interpreted as
expressing an intention to waive completely its right to invoke
The time limits of the collective agreement to restrict its
liability. The employer's redly states that "in accordance with
College practice we cannot recommend the retroactivity demanded"
This choice of language to us indicates that the employer was not
prepared to waive its right to contest further retroactivity by
invoking the time limits of the collective agreement.
9
Accordingly, it is our conclusion that the time limits
in the collective agreement do restrict our jurisdiction to gran%
a retroactive remedy and so the grievance must be dismissed.
Donald ~arte~, Chair
I concur/di~sant '
R.J. Gallivan, Employer Nominee
/!
! concur/di~_$a~t . ~ ~ ~
J. McManus, Union Nominee