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HomeMy WebLinkAboutBacon 99-04-08IN THE MA'ITER OF AN ARBITRATION BETWEEN: GEORGIAN COLLEGE OF APPLIED ARTS AND TECHNOLOGY ("the College") and ONTARIO PUBLIC SERVICE EMPLOYEES UNION ("the Umon") AND IN THE MATTER OF A CLASSIFICATION GRIEVANCE OF MS. DEBORAH BACON (OPSEU #98C378) ARBITRATOR: lan Sprmgate APPEARANCES For the College: Robert J. Atkmson, Counsel Joyce Goheen, H. R. Consultant Cathy Brown, H. R. Consultant For the Umon: Nelson Roland, Counsel Murry Tapp, Local Vice-Resident Jillian Ramjohn, Chief Steward Deborah Bacon, Grievor HEARING: In Barrie on March 26, 1999 ~,. AWARD INTRODUCTION On September 4, 1998 the grievor filed a grievance alleging that she had been improperly classified as a Support Services Officer ("SSO") at payband 8 between April 27, 1996 and June 19, 1998. In her grievance she claimed payment for the difference between payband 8 and payband 10 during this two year period. Prior to filing her grievance the grievor had transferred to another position. The employer raised several objections to the arbitrability of the grievance. The primary one, and the only one I propose 'to address, related to Article 18.4.1.1 of the applicable collective agreement. This article indicates that there is to be no retroactive payment for any time period prior to the presentation of a written classification grievance. The union contends that it was not until August 20, 1998 that a final classification and payband were assigned to the relevant position and it was ~,..~, only then that a grievable dispute arose. It submits that Article 18.4.1.1 , ~ should not be interpreted to bar the grievance or, alternatively, it is inequitable for the College to rely on such a defense. THE FACTUAL BACKGROUND The grievor commenced working for the College in 1990. In October 1993 her then position was reclassified to that of a SSO A at payband 8. In February 1996 she was advised that this position had been declared redundant. Article 15.4.3 of the collective agreement provides that a displaced employee is entitled to move into a vacant position in his/her classification or, if there is no such position, then into a vacant position in the same or a lower payband provided they can perform the core duties and responsibilities of the job. The grievor was aware that there was a newly created position reporting to Mr. Tom Monisey, Program Manager, Part Time Studies, Engineering Technology. The grievor advised Ms. Joyce Goheen, a College Human Resource Consultant, that she was interested in moving into this position. The grievor's was one of twelve support staff positions declared redundant in early 1996. A Support Staff College Union Committee actively sought positions for the twelve employees and for other employees who were impacted by chain bumping. At the time Ms. Goheen and Ms. Jenny Forde were co-chairs of the committee. Ms. Goheen indicated that she and Ms. Forde met on a daily basis to consider possible placements for displaced employees and once they identified a possible fit they raised the matter with the full committee. An employee being considered for placement and the relevant manager were often invited to a committee meeting. The College has a separate Support Staff Classification Committee that makes recommendations respecting the classification and payband to be assigned to individual positions, including most newly created positions. The committee, which is comprised of both management and union representatives, is chaired by MS Goheen. At the time of the hearing Mr. Murry Tapp was Vice-President of the applicable union local and about to become its President. He had been a member of the Classification Committee since 1997. He said that the committee requires a PDF signed by an employee and his/her manager before it will rate a position. At the hearing both parties agreed that notwithstanding the role of the Classification Committee, management of the College retained the right (subject to a successful grievance) to determine how a position is to be rated as well as the applicable payband. At times the College's human resource staff has rated a new position without it first being evaluated by the Classification Committee. Ms. Goheen testified that this has occurred when a manager wanted a job posted quickly or if an employee was in a layoff situation. Ms. Goheen said that because of the grievor's redundancy, she decided to rate the new position reporting to Mr. Morrisey without sending it to the Classification Committee. Ms. Goheen testified that she did the rating based on Mr. Morrisey's views respecting the position. She indicated that Mr. Morrisey utilized a position description form ("PD$") for a similar position in Orillia that reported to him. Ms. Goheen rated the new position as that of a SSO A at payband 8. Ms. Goheen discussed the new position at a meeting of the College Union Committee on March 27, 1996. Minutes of the meeting indicate that Ms. Goheen advised the committee members that it was a SSO A position at payband 8. Members of the committee were not asked to rule on the correctness of this rating. At the March 27t~ meeting the committee members concluded that the grievor should be considered for the position. After Ms. Goheen had rated the new position Mr. Morrisey prepared an unsigned PDF purporting to describe its duties and responsibilities. On the first page of the form he made the notation "Draft only, March 29, 1996". Ms. Goheen agreed with union counsel that the fact the document was marked "draW' meant that revisions were possible. She also said that in the PDF the manager was telling her what he required and so fi.om a human resources perspective this was the job. Mr. Morrisey faxed the PDF that he had prepared to Ms. Goheen on the morning of April 1, 1996. That afternoon there was a meeting of the College Union Committee where committee members considered whether the grievor should be placed in the position. The grievor and Mr. Morrisey attended part of the meeting. There was some conflict in the evidence as to whether the PDF prepared by Mr. Morrisey was actually distributed to the members of the committee. It is clear from the minutes of the meeting, however, that Mr. Morrisey orally reviewed the duties associated with the position. This was followed by the grievor answering questions from committee members respecting her skills. The committee subsequently decided that the grievor should be placed in the position. The grievor commenced working in the new position on April 27, 1996. She agreed with College counsel that when she started she was aware that the position was rated as a SSO A. She said that she had been told there would be no pay difference from her previous job, which had been at the payband 8 level. The grievor testified that after she had been in the new position for about a month she had a discussion with Ms. A. Shama, the then Academic Director of Engineering Technology, and the person to whom Mr. Morrisey reported, about the development of a new PDF. She said that Ms. Shama felt the position should be equal to an academic officer employed in the department since they did similar jobs. The grievor said that she and Mr. Morhsey began working on a new PDF but it proved to be a lengthy process as they had many disagreements respecting what her responsibilities were. Mr. Tapp testified that the grievor approached him about disagreements she was having with Mr. Momsey related to the wording of a new PDF. He said that he asked her if she wanted the union to become involved and- she replied -that she did not. Mr. Tapp said that the grievor later again approached him seeking ideas on how to overcome her disagreements with Mr. Morrisey. Mr. Tapp testified that management had on many occasions stressed that efforts should be made to resolve a dispute about a classification and payband before a grievance was filed. He said that as a result, when a problem arose "we" would meet with management about the matter, but if this did not work a grievance would be submitted. In November 1997 computer training was transferred out of the area where the grievor was working. This had some impact on her work functions. Early in February 1998 the grievor and Mr. Morrisey reached agreement on two PDFs respecting the grievor's position. One was for the period of April 1996 to October 1997; the other from November 1997 onwards. On February 4, 1998 Mr. Morrisey forwarded the two PDFs with a covering memorandum to Mr. Hal Jorch, who had replaced Ms. Shama. The memorandum asked that the PDFs be referred to the Classification Committee for review. The memorandum also contained the following statement: "The job description that these replace was prepared for a newly created job. It was a new position for Deborah and the Technology area. The original description did not reflect all of her duties." In April 1997 Ms. Goheen asked the grievor to sign the original PDF that Mr. Morrisey had prepared in March 1996. The grievor was reluctant to do so as she did not believe the document accurately reflected what she had been doing. She did, however, sign the form after Ms. Goheen provided her with a letter indicating that she wanted the document signed for record keeping purposes and she recognized that the position may have changed substantially in the past year. The PDF form indicates that an employee's signature on it signifies only that he/she has read and understood the form. In my view nothing tums on the fact the grievor signed the document. The two new PDFs were considered by the Classification Committee at several meetings because committee members were experiencing some difficulty in rating the position. On or about June 16 1996 the committee made its rating recommendations. These, in mm, led the College to decide how it now wanted to classify the position. Prior to the College advising the grievor of its decision, however, she applied for and obtained another position. June 19, 1998 -was the last day that she worked in the position relevant to these proceedings. By way of a memorandum &ted August 20, 1998 Ms. Cheryl Simpson, the College's Director of Human Resources, advised the grievor of the College's rating respecting the two new PDFs. She indicated that the College had assessed the position as that of a SSO A at payband 8 for the period of April 27, 1996 to August 3 1, 1996; as a SSO B at payband 9 fi.om September 1, 1996 until October 3 1, 1997; and as a SSO A at payband 8 from November 1, 1997 until she left the position on June 19, 1998. The relevant portion of Ms. Simpson's memorandum read as follows: The college has reached a decision on your position descriptions which were received for re-classification. After consulting with your manager, Tom Momsey, we have determined that it is appropriate to assess your position as follows: 1. Your classification will be %upport Services Officer A" at payband 8 from the time you were transferred to Part-time Studies until August 31st, 1996. This is to account for a period of learning and orientation to the job. The position description was drafted and approved and used by the Support Staff College Union Committee to determine your suitability for transfer. Since the position description was written for that transfer process and assessed just before your transfer, the College has believes (sic) that it is accurate. 2. Your classification should have moved to Support Services Officer B from September 1, 1996 to October 31, 1997. During this period, your personal expertise in computers and computer software provided a unique added contribution not expected of the position and you were able to take on additional duties such as advising on curriculum in this area. 3. Your classification should have returned to Support Services Officer A from November 1, 1997 to June 19, 1998 when you left the Part-time Studies area. Once Ruthanne Krant's area took over responsibility for the computer courses, and the transition had occurred, you were not required to perform these additional duties (and had no similar expertise) with the remaining technology courses. The College has a written procedure covering retroactive payments to employees whose positions are reclassified upwards in accordance with the Classification Committee system. Pursuant to this procedure, in her memorandum of August 20th, 1998 Ms. Simpson advised the grievor that she would be receiving an amount representing the difference between what she had received as a SSO A and what she would have received as an SSO B for the period of September 1, 1996 to October 31, 1997. Shortly thereafter the grievor received the amount in question. As noted above, the grievor tiled her grievance on September 4, 1998. In it she sought retroactive pay at the payband 10 level for the period of April 27, 1996 to June 19, 1998. She testified that she did not file a grievance earlier as she had been unaware of what the position's classification was until August 20, 1998. THE COLLECTIVE AGREEMENT The College relies on Article 18.4.1.1 of the collective agreement. This provision, together with other agreement provisions relating to classification grievances, provide as follows: 18.4 Classification Grievances 18.4.1 Grievance to College Official An employee who claims his/her assigned job is improperly classified and that he/she should be properly classified to another classification named in Appendix E(1) or should be classified as an atypical position may present a grievance in writing to the College official designated responsible for classification grievances. The written grievance must specify at least the job family and payband claimed by the employee to be appropriate. Where the employee is claiming he/she should be classified in an atypical position, the written grievance must specify the payband requested and must specify the job family where appropriate. 18.4.1.1 Retroactive Payment It is understood that there shall be no retroactive payment prior to the date of presentation of the written grievance as specified above. 18.4.2 Grievance Process 18.4.2.1 Step 1- meeting and information provided The College Official shall arrange a meeting within fourteen (14) days after receiving the grievance to permit the employee and a Local Union Representative the opportunity of making representations in support of the grievance. The College Official shall ensure that the current Position Description Form (PDF), as per Article 7.2.2, is provided at least five (5) days prior to the meeting. At the meeting the employee must first indicate in writing whether he/she is in agreement with the PDF and if not what specific disagreements he/she has with it. A discussion to resolve any differences shall then take place. At this meeting following discussion on the PDF, both parties will exchange, in writing core point rating by factor for the position in dispute. 18.4.2.2 College Official's Decision Within fourteen (14) days at, er the receipt of the core point rating by factor from the Union, the College Official shall give his/her decision in writing. It is understood that the grievance cannot proceed ftnther until the core point rating by factor and the specific disagreements on the PDF, if any, have been received by the College Official, in writing from the Unior~ 18.4.2.3 Referral to Arbitration After Step 1 Where the grievance has not been resolved at Step 1 but there is agreement conceming the PDF, the matter may be referred directly to Arbitration by notice in writing given to the College within fourteen (14) days of the date 8rievor should have received the College's decision under Step 1. The matter will be referred to a single arbitrator as provided in Article 18.4.3. 18.4.2.4 Step II Where the grievance has not been resolved and where the grievor is not in agreement with the PDF, then hefshe shall refer the grievance in writing to the President of the College within fourteen (14) days of the date he/she received or should have received the decision The President or his/her designee shall convene a meeting conceming the grievance within fourteen (14) days of the presentation, at which the grievor shah have an opportunity to be present. The President or his/her designee shah give his/her decision in writing, within fourteen (14) days following the meeting. 18.4.2.5 Referral to Arbitration After Step II Where the grievance has not been resolved at Step H the matter may be referred to Arbitration by notice in writing given to the College within fourteen (14) days of the date the grievor should have received the College's decision under Step ri. The matter will be referred to a single arbitrator as provided in Article 18.4.3. On mutual written agreement signed by the Local Union and the College the matter shall be referred to an Arbitration Board as provided under article 18.4.4.1. THE SUBMISSIONS OF THE PARTIES Counsel for the College contended that in Article 18.4.1.1 the parties made it clear that there is to be no retroactive relief prior to the tiling of a grievance. He submitted that because this case relates to a totally back dated grievance, there is no grievable issue and no basis for a remedial order. He argued that Ms. Goheen had rated the job as that of a SSO A at payband 8, the grievor knew about this when she stepped into the position, and the question then became whether she should be reclassified. College counsel submitted that the grievor could have grieved at any (,"~. time and did not have to wait for a signed PDF or for a decision of the -. Classification Committee. He said that her action in declining help from Mr. Tapp and dealing with Mr. Morrisey was laudable, but she could have grieved. College counsel referred to the February 23, 1993 award of arbitrator Richard McLaren in Re Mohawk College and Ontario Public Service Emplovees Union (grievance of Mary Gibson). In that case Mr. McLaren accepted the union's claim that the grievor should be moved from payband 6 to payband 8. He determined that she was entitled to receive compensation back to the day she had filed her grievance. He refused, however, to grant her compensation for any time prior to the filing of her grievance. He did so even though the grievor's supervisor had previously agreed to review her position and the review was completed a year and a half behind schedule. In his award Arbitrator McLaren commented: "The employee did not press the matter and thus it got deferred. The employee was free to have pressed the matter or filed a grievance". Union counsel submitted that in the instant case the grievor had met the requirement contemplated by Mr. McLaren as she had pressed the matter of her proper classification with Mr. Morrisey. Union counsel relied on the practice of the Ontario Crown Employees Grievance Settlement Board ("GSB") and, in particular, its November 22, 1990 award in Hillman 2007/89 (W. Kaplan). That Board's general practice is to limit retroactivity to 20 days prior to the filing of a successful classification grievance. In Hillman the Board departed from this general practice and allowed greater retroactivity. In doing so it followed certain prior GSB awards where longer retroactive compensation was awarded on the basis that the employer had been put on notice of a complaint prior to the filing of a grievance. Union counsel contended that the principles that went into the exceptions recognized by the GSB apply in the instant case. He submitted that these exceptions were based on equitable considerations, the purpose of equity being to prevent situations where a strict enforcement of a right in contract would be unfair. He argued that in any application of equity the written word in a contract is not deleted, the legal right remains, but equity prevents a party from exercising that right. Counsel for the union contended that the grievor had been placed in a position that was assigned a classification and a payband prior to a PDF being available. He submitted that the only PDF in existence on April 1, 1996 was marked ~draft" meaning that the document was not final. He argued that from the inception of the job the assigned classification and payband were tentative and almost from the outset a more accurate PDF was being prepared, indicating that a final classification decision was awaiting a final PDF. He contended that the issue of the gfievor's final classification only crystallized when Ms. Simpson wrote her memorandum of August 20, 1998 after the grievor had left the position. He submitted that it would have been premature for the grievor to file a grievance prior to when she did. Union counsel argued that article 18.4.1.1 should not be given an interpretation such that if the finalization of a classification is held off long enough and the employee is out of the job the College is off the hook. He contended that the College is claiming that it can leave a classification in flux and thereby avoid retroactivity, and this is an unreasonable interpretation of the collective agreement. He submitted that such an interpretation would be unfair since the College would get the benefit of paying someone at a cut rate. Union counsel argued that I have the jurisdiction to hear this case, to apply equity, logic and fairness, and I should find that the grievor had a right to file her grievance when she did. He further submitted that I have the jurisdiction to grant the grievor retroactive relief back to the day that she entered into the job. THE DECISION Article 18,4.1.1 is quite specific. It contains the statement that it is understood there shall be no retroactive payment prior to the date of presentation of a written classification grievance. Although counsel for the union argued that the article should not be interpreted to bar retroactive compensation, he did not advance an interpretation of the language that would entire the grievor to compensation should her grievance succeed. Union counsel relied on the approach of the GSB with respect to retroactivity. The GSB, however, was not faced with agreement language similar to that contained in Article 8.4.1.1. Accordingly, its awards are not of assistance in addressing the grievor's situation. Union counsel suggested that equity prevents the College from relying on Article 18.4.1.1. In certain circumstances equitable principles will prevent a party from relying on a collective agreement provision. An example of this is the application of the equitable doctrine of estoppel. Should a party make a representation that it will not rely on a collective agreement right, and the other party relies on that representation to its detriment, the party that made the representation will not be allowed to enforce a right inconsistent with its representation. In the instant case it was not argued, nor does the evidence suggest, that the College made a representation to the grievor or the union that if the grievor refrained from filing a grievance the College would not rely on Article 18.4,1.1. Union counsel did not specify what equitable doctrine or principles he was relying on in connection with his argument that the College should not be permitted to rely on Article 18.4.1.1. Rather his argument was an appeal to equity and fairness in a general sense. I do not, however, have a general jurisdiction to re-write collective agreement provisions or to substitute my views for what the parties have agreed to in the collective agreement. The gfievor did not file a grievance while she and Mr, Monisey were trying to reach agreement on the terms of a new PDF. The collective agreement, however, makes it clear that a grievance need not await agreement on a PDF. Indeed, the agreement contains detailed provisions concerning the procedure to be followed for a classification grievance where the parties do not agree on the contents of a PDF. Due to the inclusion of Article 18.4.1 .1 in the collective agreement any delay in presenting a written classification grievance will impact on the amount of retroactive compensation available should the grievance be successful. Compensation cannot be awarded for any time period prior to the presentation of the grievance. In the instant case the grievor presented her grievance subsequent to the entire time period for which she claims compensation. Regardless of the possible merits of her claim, I am satisfied that because of Article 18.4.1.1 the grievor cannot obtain any monetary compensation by way of these proceedings. The union did not contend that it might obtain some non-monetary benefit as a result of litigating her grievance. Having regard to these considerations, I am satisfied that no useful purpose will be achieved by continuing these proceedings. The proceedings are, accordingly, hereby terminated. Dated this 8th day of April 1999. I