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HomeMy WebLinkAboutStethem 00-00-00 98C518 98C531 99C026 IN THE MATTER OF AN ARBITRATION BETWEEN Loyalist College (College) and Ontario Public Service Employees Union (Union) (Support/Grievor Stethem) (OPSEU # 98C531) BEFORE: Helen Finley Chair Peter Hetz College Nominee Ed Seymour Union Nominee APPEARANCES: For the College: Michael Kennedy Counsel Dave Butler Vice President Human Resources John Rigsby Vice President Finance For the Union: Gavin Leeb Grievance Officer Gord Wright President Local 421 Jim Stethem Grievor A hearing in the above matter was held in Belleville on February 28, 2000 98C518 98C531 99C026 SUPPLEMENTARY D E C I S I O N The Union requested a hearing to address several issues respecting the remedy set out in the Board's decision of September 27, 1999. It was the Union's view that the College had refused to comply with the order of the Arbitration Board respecting reinstatement of Mr. Stethem and that it was incorrect in its interpretation of the compensation aspect of the award. Mr. Leeb, for the Union, requested that the Board deal with four issues: · the question of damages. · the calculation of the compensation set out in the Board's decision and as part of that calculation, the length of time that Mr. Stethem should receive the wage differential; · whether or not the night shift premium (65 ¢ per hour) paid to Mr. Stethem should be included in the calculation; and · the payment of interest. Mr. Kennedy, for the College, submitted that it was his understanding the Board was to remain seized and that if an issue arose respecting remedy that the parties would then have an opportunity to present on remedy and the Board should then "award afresh on remedy". The Board had set out the following remedy at page 17 of its award: In the result, the Board orders the College to reinstate Mr. Stethem within three weeks of the date of this decision to the position that he held prior to November 5, 1998, and to reimburse him for the wage differential for the period he was not in the position based on the hours he has worked between November 5, 1998 and the date of his reinstatement to the position. In that portion of its decision respecting remedy the Board made orders respecting · the reinstatement of the Grievor to the position until the return of Mr. Purchase · compensation to the Grievor and its effective date · the financial basis for the calculation of the compensation · the time frame for the compensation. It did not deal with the issue of whether or not the shift premium which had been paid to the Grievor for working nights during the period in question should be deducted from the compensation, nor did it make any ruling respecting interest. The issue of damages presented by the Union relates to the implementation process and has not, therefore, been previously considered by the Board. It is the conclusion of the Board, after consideration of the submissions of Council and a review of the jurisprudence presented, that the Board is functus ( that is, without jurisdiction due to the rendering of a final decision) on the issues of reinstatement to the position, the financial basis for the compensation, and the time frame for that compensation. It has concluded that it has jurisdiction to consider the issues of the appropriateness of damages relating to the College's alleged refusal to implement the award, the inclusion of the shift premium in the calculation of the compensation payable to the Grievor and the rate of compensation, and whether or not interest should be applied to the compensation. It is common ground that the Board's order to reinstate within 3 weeks translates into reinstatement some time during the period between September 27, 1999 and October 18, 1999. Since the time the award was issued, Mr. Purchase has returned to work and the parties agree that he did so on October 21, 1999. They are also in agreement that Mr. Stethem's rates of pay in paybands 5 (red-circled at 5), 4 and 2 were at the top rate, and that the difference is "approximately" $1.70 per hour, increasing to $1.71 per hour as of September 1, 1999. The Collective Agreement, (September 1, 1997 to August 31, 2000), Appendix E, shows the top rate ( 3 years) for the period September 1, 1997 to August 31, 1999, payband 5 ~ $15.10 per hour and payband 2 ~ 13.41 per hour, the difference being $1.69. It shows the top rate (3 years) for the period following September 1, 1999, payband 5 ~ $15.33 and payband 2 ~ $13.61, the difference being $1.72. The Board issued its decision on September 27, 1999 and, on October 8, 1999, Dave Butler, Vice-President, Staff and Student Services, sent the following memorandum to the Grievor, Mr. Stethem and to Gord Wright, President Local 421: According to our calculations the ~three weeks of the date of this decision...." specified in the Finley Award would be October 18, 1999. We have, however, been advised by C. Purchase that he has a doctor's appointment on October 19 and there is a strong medical indication that he will be able to return to his position on October 20, 1999. In consideration of you and what might be a switch from nights to days and back to nights for the sake of two days, the College intends to wait until we hear from Mr. Purchase or his doctor on the 19th before changing your work. The College will include any additional days in any wage differential. Should Mr. Purchase be delayed in his return to work, the College would immediately re-instate you to that position. The Union Mr. Leeb submitted · that damages should be awarded because the College, by not reinstating Mr. Stethem by October 18, 1999, failed to comply with the Board's order as mandated in the Colleges Collective Bargaining Act ; · that compensation, (the wage differential between payband 2 and payband 5), should be based on the period of time from November 5, 1998, up to and including October 20, 1999; · that the shift premium (65¢ per hour) should not be included in the calculations; and · that interest (5% suggested) from November 5, 1998 and using the Hallowell House formula should be awarded to Mr. Stethem in order to make him whole. The College Mr. Kennedy, for the College, submitted that it was his understanding the Board was to remain seized and that if an issue arose respecting remedy that the parties would then have an opportunity to present on remedy and the Board should then "award afresh on remedy". Mr. Leeb objected to the Employer submitting on remedy. The records of the Board show that Mr. Leeb touched on remedy in his opening statement, but that neither party made submissions in argument with respect to remedy. While Mr. Leeb objected to Mr. Kennedy addressing remedy, it is the conclusion of the Board that certain of Mr. Kennedy's submissions respecting remedy at this hearing are relevant to the Board's clarification of its award, and those which are relevant to the issues over which the Board has concluded it has jurisdiction will be taken into account for its determination of those issues. Mr. Kennedy argued that the circumstances of the College's failure to reinstate, are not those in which damages should be awarded. He submitted that there is no independent cause of action, no tort or breach of contract, as required. A breach of a statute is not an independent cause of action, he maintained. Further, there is no persistent breach, no evidence of mental suffering on the part of the Grievor, or reprehensible conduct on the part of the College, a further requirement. It was for practical reasons that the College did not reinstate Mr. Stethem by October 18, 1999. It made no operational sense to do so, he submitted, and while discussions were not held with the Union respecting this, a memorandum was sent to the President of the Local. The Union' s remedy for breach of an award under the Colleges Collective Bargaining Act, he stated, is to file a copy of the decision with the courts and seek a finding of contempt, a route which is still open to them. Respecting the inclusion of the shift premium in the compensation calculation, Mr. Kennedy submitted that, in terms of putting Mr. Stethem in the position which he would have been in, the total wages earned by him should be subtracted from the caretaker's rate, that is, the night shift premium must be included in the calculation. There is, he maintained, no principle known at law which says that, in such a calculation, you do not include all monies you earn in a particular job. It was the Employer's position that interest is discretionary and should not be awarded; however, should the Board decide to do so, Mr. Kennedy stated that he agreed with the Union's position that it should be based on the Hallowell House formula and that 5% is appropriate. DECISION Damages The Union' s request for an award of damages against the College for failure to comply with the Board's order, distinct from the order for compensation, is denied. In line with arbitral jurisprudence, the Board is of the opinion that an award for damages distinct from compensation which makes a grievor "whole", is appropriate only in the rarest and most egregious of circumstances and these are not present in the instant case. While the Union may have perceived the action of the Employer to be arbitrary, because of the College's failure to initiate a discussion with the Union in advance, the Board notes that the memorandum to the Grievor and the Union, supra, was written on October 8, 1999, ten days in advance of the final compliance date, and, in consequence, the Union had opportunity and ample time to contact Mr. Butler but chose not to do so. The Board is of the opinion that while a discussion with the Union in advance of the memorandum might have offered an opportunity for resolution, it does not consider that the College's action constitutes an intent to disregard its decision. Rather, the College's response appears to be a reasonable and practical one to yet another timing problem in this unfortunate situation. The Board believes that had Mr. Purchase not returned to work on the date planned, the College would have honoured its statement in the memorandum to reinstate Mr. Stethem to that position. Compensation Calculation and the Shift Premium The parties disagree on whether or not the shift premium of 65 ¢ per hour which Mr. Stethem was paid for working the night shift during the period in question should be included in the calculation of the wage differential. The award did not address this aspect specifically, although the term "the wage differential" does not, in the opinion of this Board, include it. The wage rates are set out in the paybands and it is this differential that the Board intended. Article 7.5 of the Support Staff Collective Agreement reads as follows: 7.5 Shift Premium The College shall pay a shift premium of fifty (50) cents per hour for all regular hours worked between 5 p.m. and midnight and sixty-five (65) cents per hour for all regular hours worked between midnight and 6 a.m. Where more than fifty percent (50%) of the hours worked on any regular shift fall within a period attracting the higher premium, the higher premium shall be paid for all regular hours worked. Including the shift premium in the calculation of the compensation would, in effect, mean that the Grievor would be required to return the premium to College. Mr. Stethem worked the night shift (straight nights), experienced the inconvenience which goes with that, and received premium pay for doing so. Including the earnings he received as shift premium in the calculation would give the result of his having worked that shift regularly without the premium set out in Article 7.5 attached thereto. It is the conclusion of the Board that Mr. Stethem's earnings under the heading shift premium should not be included in the calculation. Interest Brown and Beatty note at 2:1412 p 2-28 of Canadian Labour Arbitration (3rd edition) that "..., it is now the practice of the Ontario Labour Relations Board to award interest on monetary compensation which it orders to be paid. They go on to state that "... the prevailing presumption appears to be that interest may be included as part of an award of damages where appropriate to provide a full remedy for breach of the agreement". There is the proviso, however, that the payment of interest is not prohibited by the Collective Agreement. The awarding of interest is not precluded by the parties' Collective Agreement, nor were any particulars offered as to why the Grievor should not receive interest on the monies as compensation for not having had these funds available to him, while the College had the use of them during that time period. Interest is awarded, therefore, at the rate suggested and agreed to by the parties (5%) and according to the formula established in Ha/lowell House. While the Board has confidence that the parties will now be able to finalize the implementation of its award, the Board will remain seized in the event that the parties encounter difficulties in doing so. Dated at Helen Finley, Chair Peter Hetz, College Nominee Dissents Reasons not in writing Ed Seymour, Union Nominee Concurs HELEN S. FINLEY ARBITRATION AND MEDIATION SERVICES 52 Earl Street Telephone KINGSTON, Ontario (613) 548-4059 K7L 2G6 Facsimile (613) 548-7629 E-Mail helen.finley~sympatico, ca May 15, 2000 Dear Peter, Dear Ed, Thank you for your patience during the last couple of chaotic months. I would appreciate your input on this, suggestions and corrections, both substantive and editorial. ! have to be away from May 23rd to approximately June 3/4th. ! look forward to hearing from you.