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HomeMy WebLinkAboutHannikainen 91-06-06 90C311 CAAT L.653 BETWEEN: NORTHERN COLLEGE OF APPLIED ARTS AND TECHNOLOGY AND: ONTARIO PUBLIC SERVICE EMPLOYEES UNION AND IN THE MATTER OF A GRIEVANCE OF A. HANNIKAINEN BOARD OF ARBITRATION: Kevin M. Burkett - Chairman David Cameletti - College Nominee Wally Majesky - Union Nominee APPEARANCES FOR THE Ann E. Burke - Counsel COLLEGE: Jim Cotnam - Human Resources Officer APPEARANCES FOR THE Allison Hudgins - Counsel UNION: Aarne Hannikainen - Grievor John Canys - Union Advisor Richard Mason - Local President A hearing in this matter was held in Toronto on March 15, 1991 AWARD 1. It is grieved in this matter that the college is in breach of Article 3 (Salaries) of the collective agreement by reason of having made a deduction of $102.82 from the April 6, 1990 salary cheque paid to Mr. Aarne Hannikainen. Mr. Hannikainen is a teaching master at the college. 2. By way of background the college switched from a monthly to a bi-weekly pay system effective January, 1989. In calculating the amount of each bi-weekly payment the college divided the annual salary by 26. It is agreed that under a bi-weekly .pay system the correct divisor is 26.1. It is further agreed that it was because of a clerical error that the incorrect divisor was used. As a result of using the incorrect divisor the bi-weekly payments so calculated were slightly greater than required under the collective agreement. It is agreed that for the period September, 1989 to April 6, 1990 Mr. Hannikainen had received a total overpayment of $102.82. It was this overpayment that the college deducted from his April 6, 1990 bi-weekly payment. It is not disputed that Mr. Hannikainen received the full salary to which he was entitled under Article 3 of the collective agreement for the 1989-90 academic year. 3. After some discussion it was agreed that the issue before this Board for determination is whether under Article 3 of the collective agreement, read in light of Section 8 of the Employment Standards Act, the college could make a unilateral deduction from Mr. Hannikainen's pay cheque. 4. Article 3 of the collective agreement reads: "ARTICLE 3 - SALARIES 3.01 The salary scales applicable to full-time employees shall be as set out in Appendix I attached hereto. 3.02 Determination of starting salaries and pro- gression within the salary scales shall be in accordance with the College's Classification Plans dated November 28, 1989, and the application to certain present employees above the maximum scale shall continue as set out in the "Guidelines" starting on page 70, which also set out the terms of reference of the Joint Educational Qualification Sub-Committee. 3.03 (1) The Salary scales as set out in Appendix I will apply to persons teaching more than twelve (12) hours on a regular basis. Persons teaching over six (6) and up to and including twelve (12) hours on a regular basis will be covered by paragraph (2) hereof and Appendix II 3.03 (2) Persons who teach over six (6) and up to and including twelve (12) hours per week on a regular basis shall be referred to as "partial-load" employees and shall not receive salary, vacations, holidays or fringe benefits (except for coverage of Workers' Compensation and liability insurance) under this Memorandum and Appendix I but shall be paid for the performance of each teaching hour at an hourly rate within the range of hourly rates set out in Appendix II and in accordance with the other provisions of Appendix II. 3.03 (3) It is recognized that a full-time teacher who may be assigned by the College to an instructional assignment of less than thirteen (13) hours per week shall continue to be paid on the basis of salary rather than on an hourly rate except as may occur through the application of Article 8, Seniority, or as may be mutually agreed between the employee and the College. 3.03 (4) A full-time employee may request, and, with the approval of the College, may undertake a less than full-load assignment for a mutually agreed period. APPENDIX I - SALARY SCHEDULES (Effective September 1, 1989) (a) Professors and Counsellors and Librarians The salary maxima are established in terms of relevant formal education levels and equivalencies as listed below: Step 2 $31,740 Step 3 33,428 Step 4 35,119 Step 5 36,807 Step 6 38,497 Control point for Step 12 Step 7 40,188 Control point for Steps 13 & 14 Step 8 41,875 Control point for Steps 15 & 16 - Maximum starting salary for Step 12 qualifications Step 9 43,565 Maximum starting salary for Step 13 qualifications Step 10 45,254 Maximum starting salary for Step 14 qualifications Step 11 46,943 Maximum starting salary for Step 15 qualifications Step 12 48,632 Maximum salary - no formal post-secondary diploma, certificate or degree - Maximum starting salary for Step 16 qualifications Step 13 50,322 Maximum salary - 1 year post-secondary certificate Step 14 52,011 Maximum salary - 2 year CAAT Diploma or certified Journeyman* Step 15 53,702 Maximum salary - 3 year CAAT diPloma or General Pass University Degree or certified Journeyman* holding equivalent qualifications** Step 16 55,387 Maximum salary -- 4 year Canadian University Degree or more; C.G.A.; P.Eng.; C.A.; or C.M.A. (formerly R.I.A.I~; In-service Teacher Training Program Certificate NOTE: Formal educational qualifications not specified above will be subject to evaluation by the Joint Educational Qualifications Subcommittee. *"Journeyman" to be replaced with appropriate term when Apprenticeship Act is amended. *eStep 15 equivalent qualifications for a certified Journeyman* or someone treated as such, shall mean the successful completion of five full year CAAT courses at the technologist level of which two are directly related to the individual's area of expertise, or the equivalent. The course of study leading to equivalent Step 15 qualifications for certified Journeymen*, or someone treated as such, shall be approved in advance by the College. (b) Instructors Minimum $24,213 Step 1 25,904 Step 2 27,592 Step 3 29,281 Step 4 30,972 Step 5 32,662 Control point of range Step 6 34,349 Step 7 36,040 Maximum starting salary Step 8 37,730 Step 9 39,419 Step 10 41,108 (c) Annual increments to the control point are based upon experience, at the rate of one step for each completed year on-the-job experience. Above the control point, but not beyond the maximum, one step will be granted where performance in the past year was satisfactory. For the purposes of this paragraph the following shall be considered as on-the-job experience: leave for union activities, paid leave of absence, secondment. " 5. Section 8 of the Employment Standards Act provides: "8. Except as permitted by the regulations, no employer shall claim a set-off against wages, make a claim against wages for liquidated or unliquidated damages or retain, cause to be returned to himself, or accept, directly or indirectly, any wages payable to an employee. " 6. Section 15(1) of Regulation 285 under the Employment Standards Act provides: "Deductions, etcetera, from Wages 15. (1) Notwithstanding section 8 of the Act, an employer may set off against, deduct from, claim or makr a claim against or retain or accept the wages of an employee where, (a) a statute so provides; (b) an order or judgment of a court so requires; or (c) subject to subsection (2), a written authori- zation of the employee so permits or directs. " The union argues, firstly, that because the deduction took place in 1990 in respect of salary earned in 1989 and because taxes were paid on an inflated amount in 1989 Mr. Hannikainen suffered a real loss. The union argues that under Section 8 and Section 15(1) of Regulation 285 under the Employment Standards Act the college cannot make a unilateral deduction from salary even where there has been an overpayment. The union relies on St. Joseph's Hospital and London and District Service Workers (1985) 20 LAC (3d) 390 (Kates); and Ottawa Board of Education and Federation of Women Teachers (1986) 25 LAC (3d) 146 (P. Picher). The union maintains that on a reading of these cases it is clear that where there has been an overpayment there must be compliance with Section 15(1) of Regulation 85 of the Employment Standards Act in order to effect a deduction from salary. It is argued that in the absence of such compliance a unilateral deduction cannot be made. It is submitted that Article 3 of the collective agreement must be read as operating in accord with the Employment Standards Act and, there- fore, prohibiting the deduction from Mr. Hannikainen's salary which is the subject matter of this grievance. 8. The college points out that nothing in Article 3 speaks to when and how employees will be paid. In the face of the speci- fication of annual salaries, in the absence of specificity with respect to the manner in which the annual salary is to be paid, and in the face of Mr. Hannikainen having been paid his full salary for the 1989-90 school year, it is argued that there has been no breach of Article 3. The college submits that in circumstances where an em- ployee receives the full amount of his/her annual salary, as in this case, the Employment Standards Act does not apply and there can be no breach of the collective agreement. The college argues that Carleton Board of Education and O.S.S.T.F. (May 4, 1984) unreported (Adams) is on all fours. Reference is also made to Toronto Western Hospital, appeal from order of Employment Standards officer by William McMaster, August 19, 1980 (Adamson). The college argues further that the aWard in Ottawa Board of Education and Federation of Women Teachers (supra),relied upon by the union, supports the college's position insofar as it sanctions a deduc- tion for repayment of the portion of the overpayment occurring in the same school year as the deduction was made. The college reminds us that there has been no detrimental reliance in this case. The college asks us to disregard the award in St. Joseph's Hospital and Service Workers Union (supra) as at variance with the other awards and wrong in its interpretation of Section 8 of the Employment Standards Act. The college argues that the de minimus rule applies in respect of the union's reliance on the tax paid by Mr. Hannikainen on the portion of the $102.82 over- payment made in 1989. 9. This case is on all fours with the award of Arbitrator Adams in Carleton Board of Education and Ontario Secondary School Teachers Federation (supra). In that case an overpayment of some $3,651 was made by reason of a clerical error and was deducted.from the June pay cheque of the affected employees. The overpayment had been made in the academic year in which it was recaptured. Salaries under the collective agreement were stated as annual amounts. The arbitrator found that the overpayment resulted from a "clerical error" and stated that there was no question of a "mistake of law". In dismissing the grievance the arbitrator ruled, firstly, that because salaries were stated in annual terms "we do not understand Article 7.08 as precluding any recovery of an excess salary payment to a teacher in the same year as that in which the adjustment is made". He ruled, secondly, in respect of the application of the Employment Standards Act as follows: "It is our view that the Employment Standards Act has no application to the facts at hand. The salary of the grievor is stated in the collective agreement in annual terms. There is no dispute that with the last payment to the grievor in June he received the annual salary he was entitled to. There was, therefore, no reduction or set-off against the wages he was entitled to over the course of the year. " 10. Arbitrator Adams' conclusion is consistent with that of Referee Adamson in re Toronto Western Hospital (supra) with respect to the application of the Employment Standards Act in the circumstances that are before us. It is to be noted that Arbitrator P. Picher in re Ottawa Board of Education was careful to distinguish her facts from those before Arbitrator Adams in Carleton Board of Education (supra) (and before us in this case). She stated: "Whatever alternatives might have been worked out in an attempt to accommodate the interests of both parties, it is the conclusion of this board that unilaterally deducting the overpayment of wages made in a previous school year (the 1983-1984 school year) from wages which otherwise would have been paid in the school year subsequent to the overpayment contravenes S. 8 of the Employment Standards Act. In contrast to the circumstances in Carleton Board of Education, Ms. Johnston did not receive the wages to which she was en- titled under contract for the 1984-85 school year. " Insofar as the award of Arbitrator Kates in re St. Joseph's Hospital (supra) can be read as interpreting the Employment Standards Act as prohibiting the recapture of an overpayment caused by a clerical error so that notwithstanding the recapture the affected employee receives his/her full salary for the year in question, we reject his conclusion. 11. Finally, a brief comment is in order in response to the union's reliance upon the fact that the grievor paid income tax in 1989 on an inflated amount of salary. The grievor paid tax on an additional amount of some $60 (the overpayment for September, October, November and December, 1989) but at the same time had the use of this money. In the circumStances we accept the college's argument that the de minimus rule applies. The facts before us are no different than those before Arbitrator Adams in re Carleton Board of Education (supra) and we have come to the same conclusion. 12. Having regard to all of the foregoing, this e is hereby dismissed. DATED at Toronto the 6th day of June, 199 ir I concur "David Cameletti" College Nominee I dissent "Wally MajeSky" Union Nominee