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HomeMy WebLinkAbout1988-1295.Ababio et al.90-03-01 ON.RIO ~MPL OYE$ OE ~ COURONNE CROWN EMPL OYE~ DE L'ON~O GRIEVANCE C,OMMiSSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUN~S $~E~ WES~ TORONT~ ON~RI~ M5G 1ZS . SUI~ 21~ ~LEPHONE/T£~PHONE 18~ RUE DUNDAS OU~ TORONT~ {ON~RI~ MSG 1~- BUR~U 21~ ~1~ 1295/88 IN THE J~TTER OF AN ARBITRATION Onde r THE' CROWN EHPLOYEES COLLECTIVE BARGAINING:ACT' Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN: OPSEU (Ababio et al) Gr[evor - and - The Crown in Right of Ontario (Ministry of Revenue) Employer BEFORE: M.V. Watters Vice-Chairperson L. Robbins Member D. Montrose Member FOR THE I. Rolan~ GRIEVOR: Counsel Gowl:ing, Strathy & Henderson Barristers & Solicitors FOR THE C. P~terson E~PLOYER: Counsel Winkler, Filion and Wakely Barristers & Solicitors HEARINGS: April 24, 1989 December 8, 1989 This proceeding arises from twelve (12) grievances all of which were submitted in October 1988. Each grievance stated that the Employer was in violation of articles 22 and 23 of the collective agreement. The grievers requested that the Employer be ordered to comply with these provisions. They further claimed retroactive reimbursement together with interest, At the commencement of the hearing the Board was advised the parties agreed, as a matter of principle, that the Employer had breached the above-mentioned articles in the calculation Of distance and travel time entitlements. This agreement was as a consequence of the award in Nayford, t398/87 (Kates). Briefly stated, tha% award led the parties to conclude the Employer was obligated to pay actual distance and travel time in contrast to an amount calculated pursuant to the "lesser of principle" of which more is said below, A dispute remained however in respect of two related issues: (i) the extent of retroactivit¥; and (ii) the method of computing any outstanding travel time owing to the grievers. The facts relating to the claim for retroactivity are relatively straight forward and may be stated as follows- (i) All of the 9rievors are employed as Tax Auditors in the Retail Sales Tax Section of the Ministry of Revenue. In this. capacity, they are required to conduct audits in the field. 1 This necessitates use of their automobiles for purposes of travel to and from the sites being audited. (ii) Mr, C. D'Cruz has been employed as a Tax Auditor for approximately fifteen (15) years. He testified that prior to February 1981, distance and travel time was computed from his home. A change in this practice was' evidenced by a document dated February 23, t981 which was signed by Mr. B. Willoughby, the Supervisor at the time. From that point on, time credits for travel by automobile were to be made on the same basis as reimbursement for mileage cost, namely on what was referred to as the "closer point principle". More specifically, this document stated that travel time should be paid on the lesser of travel time from home to destination and return or travel time from assigned headquarters to destination and return, This directive was subsequently repeated in a manual of District Office Procedures dated February 1983 and in guidelines for the Retail Sales Tax Branch dated March 1987. (iii) Mr. D'Oruz stated that the change in policy was questioned when first implemented in early 1981. The auditors were advised that such reflected management's interpretation of the collective agreement and should accordingly be followed. The issue was also raised periodically by himself and other auditors during the course of monthly section meetings. Zt was Mr, D'Cruz's recollection that a similar response was received to these inquiries, We were also informed that discussions were held with different supervisors over the years with respect to the calculation of distance and travel time. Evidence was not 2 tendered as to the specifics of these exchanges. Mr. D'Cruz testified the Employer's position was accepted to the extent that the auditors believed it was in the best position to provide an accurate interpretation of the entitlement provisions. He further stated that notwithstanding this "acceptance," the auditors were not totally satisfied with the Employer's position. (iv) The change in policy, which took effect in February 1981, meant that Mr. P'Cruz, and presumably the other auditors, had to absorb some of the travel costs which had previously been borne by the Employer. Under the terms'of the revised policy, actual time and distance would not be compensated for when the distance from headquarters to the site was less than the distance from the home to the site. (v) As noted above, the grievances were all filed in early October 1988. Mr, D'Oruz stated it was only then that he became aware of the Hayford award. At or around that same time, he came into contact with Mr. J. Daniels, an auditor in the Motor Fuels and Tobacco Tax Branch of the Ministry, who led him to believe that he had been paid for travel credits from his home and return. (vi) Mr. Daniels testified that he had been an auditor with the above-mentioned Branch for approximately twelve (12) years. From March 1983 on, his assigned headquarters was in Oshawa, We were told that the majority of his audits were to the west of that city. It was Mr. Daniel's evidence that his travel time and distance claims were submitted and paid on the basis of home to site and return notwithstanding that his residence was seven (7) miles east of Oshawa. He stated that the Emp]oyer was aware of the basis for his claims as early as 1982. (vii) Mr. R. NcCormick, an auditor with the Corporate Tax Branch, testified that from 1983 onwards he also claimed and received payment for both time and distance calculated from his home to the taxpayer's business and return. From April 1983 to the date of the grievances his headquarters, at ]east for travel purposes, was in Oshawa. Prior to February 1988, he resided in Brampton. Approximately half of Mr, McCormick's audits were at out of town sites, including Montreal. The balance of the audits were conducted west of Yonge Street, Toronto. As noted, it was Mr. McCormick's evidence that his travel was consistently paid from hi.s residence during the period in question notwithstanding the Ministry's policy, of which he was aware, to apply the "lesser of principle." (viii) Mr. D. Savio, Senior Manager-Audits, Corporate Tax Branch, gave evidence for the Employer. It was his testimony that the "lesser of principle" was generally the applicable policy. He conceded, however, that there was some "misapplication" of same. This misapplication was highlighted by an external audit of.travel claims which was performed in 1987. This audit focused on the travel claims of twenty-five (25) randomly selected auditors, including Mr. McCormick, submitted over a one (1) year period. The review encompassed approximately three hundred (300) claims. This translated into approximately twelve hundred (1200) to fifteen hundred (1500) individual trips. Ultimately, the audit identified twenty (20) occurrences in 4 respect of ten ('10) employees, in which there was a departure from the "lesser of principle".. The non-compliance occurred vis a vis trips east of Oshawa, It included five (5) of Mr, McCormick's visits to Montreal. The Employer subsequently determined that nineteen. (19) of the twenty (20) trips originated on a Sunday and had been mistakenly approved on that ground. Mr. Savio thereupon reiterated the Min~stry's commitment to the "lesser of principle" by way of a memo to all Audit Managers and Supervisors dated July 9, 1987, It was the position of the Union that the bar to retroactivity beyond the normal twenty (20) days should be waived by virtue of what counsel described as "dupli¢itous conduct", He suggested that it was arguable the Employer was aware throughout that it's policy contravened the collective agreement. We were urged to find that the Ministry took advantage of the grievors by it's reliance on, and administration of, an incorrect practice. It was further submitted that the evidence of inconsistent practice in respect of Mr. Daniels and Mr. McCormick reflected an awareness on the part of the Employer that %he "lesser of principle" constituted a violation of the collective a§reement. On this basis, the Union claimed retroactivity back to February 1981, The award in SabQ, 777/86 (Dissanayake) was relied on in support of %his position. In response, it was submitted by the Employer that the circumstances of this case did not justify a departure from the twenty (20) day rule. Specifically, it was argued that the 5 grievances should have been filed at or about the time of the change in policy. Had they been successful, the Employer could then have taken steps to reduce it's costs by assigning audits closer to the residence. Counsel further noted that there had been no informal attempts to resolve the dispute in this instance and that, essentially, the 9r~evors had accepted management's views on entitlement, albeit, with some reservation. He submitted that these facts served to distinguish this ease from those where retroactivity had been extended beyond the twenty (20) day limit with the objective of promoting informal resolution of disputes. The awards in Gam, 1209, 1210, 1212,1307,1308,1309,1310,1311/85 (Verity); Robbs et al, an__Cd Allen et al., 0462, 0463,0464,0465/86 (Kennedy); Boner et al,, 1563-1571/85 (Ka%es); and Baldwin & Lyn~q, 0539/84 (Mitchnick) were relied on in support of th,is position. After a full consideration of the facts presented, it i$ our judgment that retroactivity cannot be granted back to February 1981. Simply put, we would agree with counsel for the Employer that there are material differences Detween this ¢a~e and those in which other panels of this Board have granted retroactivity beyond twenty (20) days. The parties %o the instant dispute never engaged in informal discussions with a view to settlement of their differences. To the contrary~ management personnel appear to have consistently indicated to the grievors that it intended to apply the "lesser of principle" The Employer, in the period under consideration, never gave any assurances that it 6 was reviewing the matter for the benefit of the auditors or that it was willing to change its policy. Similarly, the grievors did not assert that a grievance would be forthcoming in the absence of a positive reconsideration. It is clear from all of the testimony that Mr. D'Oruz., and the other auditors, were cognizant of the Employer's policy pertaining to the calculation of travel and distance credits. They were not compelled to accept such an interpretation of their entitlement if they did not fully agree with same. In this regard, the Board was not provided with any reasons as to why a grievance was not filed in 1981 or at some interim point thereafter. Ultimately, we find that such action should have been taken if the grievors had concerns as to the propriety of the Employer's application of the collective agreement. The Board has not been persuaded that the evidence of a contrary practice in other Branches of the Ministry. dictates the extension of retroactivity as claimed bY the Union, Rather, we think that the claim to increased retroactivity has to be assessed on the actions of these grievors in the Retail Sales Tax Branch. We are prepared ~o accept Mr. Savio's .evidence that the policy of his Branch was to employ the "lesser of principle" and that such was mistakenly applied in those instances identified by the 1987 audit. Indeed, Hr. McCormick testified that he was aware that this principle reflected Branch policy between 1983 and 1987. He informed the Board that he disagreed with such an approach as there was no reference to same in the collective agreement. In any event, we are not prepared to find that the evidence of inconsistent practice, as presented, justifies retroactivity for these grievers back to 1981. We note in this regard that Mr. D'CFuz was unaware of the contrary practice until shortly before the submission of his grievance. , The Board cannot find any evidence of duplicitous conduct on the part of the Employer. Zt's position vis a vis these grievers was clear from 1981 onwards. The evidence pertaining to Mr. Daniels and Mr. McCormick is consistent with either a contrary practice or the misapplication of the "lesser of principle" It does not in our estimation support an inference that the Employer took advantage of these grievers. We are unable to find that the Employer knew their practice contravened the collective agreement prior to'the issuance of the Hay¢ord award. It was the alternate position of the Union that retroactivity should extend back to the date of the Hayford award, that being July 5, 1988. Counsel noted that the grievances were filed immediately after the griev.ors learned of the award, He submitted that they should be entitled to take advantage of the Havford interpretation from it's effective date as, the Employer's "lesser of principle" ceased to be valid thereafter. Lastly, it was asserted that the Employer would not be prejudiced by an order which in effect would require it to comply with "the law" as articulated in Hayford. The Employer opposed this alternate claim. It submitted that an onus existed 8 on the Union to bring a timely grievance. Again, this Board was urged to limit relief to twenty (20) days prior to the date of the grievances. After considerable thought, the Board has decided to award retroactivity to the date of the Hayford award. We have been persuaded that rigid adherence to the twenty (20) day rule would not be appropriate in this instance. The Board considers it material that these grievers filed their grievances as soon as Hayford came to their attention. This step was taken shortly after the release of the award and without any delay on their part. The content of the decision clearly demonstrated that their reliance on the opinion of management had been misplaced. Given these circumstances, and the Employer's concession that Hayford dictated a change in their pre-existing policy with respect to the calculation of distance and travel-time entitlements, we remain unconvinced that it would be inequitab!e to the Employer to so'extend retroactivity. The Board wishes to make clear, however, that such extension is premi'sed entirely on the factual situation before us., The Board notes that our conclusio~ in respect of this aspect of the dispute is similar to that reached in Burrows, 0379/88 (MitchnicK). In that case, the grievance concerned the application of travel time to Schedule 6 employees. On May 1, 1984, a decision was rendered in respect of another employee in a different Ministry. This was referred to as the Fawcett award. 9 The grievor became aware of that decision in July 1984 and subsequently discussed it's applicability to his situation with the Ministry's Chief Classification and Staff Relations Officer. He was advised that the Fawcett award was "being appealed" and therefore elected to wait a period of time before determining how to best proceed. A grievance was subsequently filed in April, 1988. The Board in Burrows reviewed the jurisprudence on the twenty (20) day rule, including the decision in Baldwin and Lynq cited in this case. After so doing, it awarded retroac%ivity back to the date of the Fawcett award notwithstanding the fact that the grievor first raised the issue with the Employer some two (2) months later. The grievors in this matter fall within Appendix 3, Schedule ~A to the collective agreement. This Appendix provides for an averaging of the number of hours of work per week over a twelve (12) month period. At the end of the averaging period, which for purposes of this dispute ended on March 31, 1989, any excess hours standing to the employees credit over and above an annual hours requirement are to be considered as overtime. It was the position of the Union that this provision should be applicable if any time owing to the grievors by virtue of this award takes them above the annual hours requirement. In that event the extra hours would be treated as overtime. We were asked by counsel for the Union to decide this question as a matter of principle and to leave any precise calculation which might prove necessary to the parties. It was noted that in the circumstances of this case any 10 overtime falling due as a result of a correction for travel time should attract interest from June l, 1989 to the date of payment pursuant to article 13.3.2. The Board was requested to retain jurisdiction should problems subsequently arise in implementing this aspect of the award. The Employer opposed the Union's request that this Board should rule on the Applicability of Appendix 3, Schedule A. Counsel noted that the grievances on their face did not speak of a claim to overtime. He submitted that the treatment of any extra hours found to be owing to the grievors was a separate and distinct issue. Zn support of the argument, we were advised that eight (8) subsequent grievances had been filed, including five (5) from the present group of grievors, which specifically claimed overtime compensation for hours worked in excess 0f the annual requirement. Counsel further stated that an affirmative ruling on this issue would deprive the Employer of an opportunity to take steps to avoid an excessive buildup of hours worked as provided for in the Appendix. It is the judgment of this Board that fundamentally this issue raises a question of remedy which we find to be directly related to the merits of the dispute. More particularly, the Union is asking the Board to simply declare that the Appendix will apply if the calculation of e~tra time owing takes one or all of the grievors above the annual hours requirement. At this juncture, we are not called on to provide an interpretation of 11 the Appendix~ nor is it necessary to hear evidence relating to it's prospective applicability to individual cases. The parties to this dispute have agreed that the grievors fall within the provision. What remains is for them ~o engage in the necessary calculations to determine whether the Appendix comes into effect vis a vis overtime. ~n our estimation there is nothing objectionable in this Board determining the applicability of the Appendix. Besides being a matter of remedy, a ruling of the type requested may serve to reduce & number of other disputes involving these same greivors. We have not been persuaded that the filing of these subsequent grievances should serve to limit our remedial jurisdiction in this instance as clearly the matters are related. Indeed, the additional grievances may simply reflect a desire on the part of these grievors to cover off alt of ~heir options. For all of these reasons, the Board concludes that the Appendix will be applicable should any of the grievors exceed the annual hou.rs requirement as a consequence of these proceedings. While it is true the Employer will not be able to take advantage of the excessive buildup of hours provision, that result is merely a reflection of the fact that the annual period in question (April 1, 1988 to March 31, 1989) has expired. The grievors should not 'be deprived of an available remedy because of the delays normally associated with the grievance and arbitration procedures. In summary, the Board adopts the agreement of the parties to the effect that the Employer breached articles 22 and 23 of the 12 collective agreement in the calculation of distance and %ravel time entitlements. We find for the reasons given above that retroactivity should be limited to the date of the Hayford award, July 5, 1988, and that Appendix 3, Schedule A, will be applicable if a grievor exceeds the annual hours requirement. In view of our disposition of the grievances, it is unnecessary to respond to the Employer's argument that. relief could not be granted for a period prior to the commencement of the current collective agreement. The grievances are therefore allowed in part. The Board will remain seized in the event there are difficul%ies in Dated at Windsor, Ontario this Ist day of March , 1990. M,V.Wstter~, Vi ce-Oh~i rper~on k. Robbing, ~ember ~. ~ontrose, ~ember