HomeMy WebLinkAbout1989-2007.Hillman.90-11-22 '" ONTA,RtO £MPL 0 Y{~'S OE LA COURONNE
CROWN EMPLOYEES DE L'ONTARIO :
GRIEYANCE CQMMISSlON DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
RUE OUNDA$ OUEST, BUFfEAU 2~00, TORONTO (ONTAFltO). MSG TZ~ FAC$1MILE/TE:L£COPlE : (4 ;6I 326- 1396
2007/89
IN THB MATTER OF ~N ~RBITRATION
Under
THE CROWN EMPLOYEEB COLLECTIV~ BARGAINING ACT
Before
THE GRIEV~NCE SETTLEMENT
OPSEU (Hillnan)
Grievor
- a~d -
The Crown in Right of Ontario (Ministry of Transportation)
Employer
BEFORE: W. Kaplan Vice-Chairperson
G. Majesky Member
D. Montrose Member
FO~ THE D. Wright
~RIRVOR Counsel
Ryder Whitaker Wright & Chapman
Barristers & Solicitors
FOR THE J. Gallagher
RMPLOYER Staff Relations AdviSor
Human Resources Branch
Ministry of Transportation
HEA~IN~: October 31, 1990
2
Introduction ..
By a grievance, dated February 9, 1990 Mark Hillman, a Senior
Construction Technician with the Ministry of Transportation,
grieves that he is improperly classified and seeks
reclassification "to a more .appropriate classification,
retroactive to the date of the first filing of grievances on this
matter of imDroper classifications." Counsel advised the Board
that the onl~ matter in dispute was the extent of the
retroactivity of the grievor's reclassification, the emp.loyer
having agreed that Mr. Hillman was in fact improperly classified.
Evidence
The grievor testified on his own behalf, and was the only witness
to give evidence in this case. The grievor has worked as a
Senior Construction Technician since 1980 in the Ministry of
Transportation's northern region. In January 1990 another
employee, told the grievor about a decision of this Board called
McCaulev et al and Truchon et al (93/88), hereinafter the Truchon
decision. In Truehon some thirty-five senior construction
technicians in the Mini'stry's northern region sought
reclassification. The Board found the Truchon grievors to be
improperly classified and granted a Berry order requiring the
employer to properly classify them.
When the grievor found out about the Truchon decision he
immediately sought further details. He found out that it applied
3
to co-workers performing the same job as he was,~ and he learned
that the first grievances relating to this case had been filed
approximately one year earlier when he (the grievor) was away
from work for several months. The grievor immediately contacted
a union representative and ~ filed a grievance. The employer
agreed that the grievor was improperly classified and offered to
reclassify him retroactive to twenty days prior to the release o~.
the Truchon decision. This was not satisfactory to the grievor,
who sought the same retroactivi~y given the Truchon grievors, and
so the matter of retroactivity proceeded to arbitration.
In cross-examination, the grievor was questioned about whether or
not it was possible that he could have worked with several of the
Tr~chon grievors for a number Of months and never hear anything
about their grievances. The grievor stated that this was so, and
he reiterated his evidence in chief that the first time he heard
about this matter was when a f~llow employee told him about the
decision of this Board. ~
Argument
Counsel for the union began his.submissions by acknowledging that
the usual procedure in classification cases is to limit
retroactivity to twenty days' prior to the filing of the
grievance. In counsel's view, however, this was a case in which
the usual practice should not be followed. In this case, counsel
argued, the grievor should be compensated in exactly the same way
4
aS were the .grievors in the Truchon case. Two arguments were
made in support of this position.
In his first submission, union counsel took the position that the
twenty-day rule should not apply to classification cases in that
this twenty-day rule owes its genesis to the time limit provision
in the colledtive agreement. 'simpl~ put, this rule holds that..
since an employee has-twenty days in which to file a grievance,
retroactivity should be limited to those twenty days.
contrast to this situati°n, the right to grieve classifications
was a statutory one, and so counsel argued that the twenty-day
rule was inapplicable.
counsel noted that there was no time limitation on the filing of
certain grievances including classification grievances (Re
Attorne¥-GenerD1 for .Ontario and Keeling et al (1980) 30 O.R.
(2d) 662), 'and he argued that there should likewise be no time
limitation on the retroactivity of classification grievances.
Counsel observed that the Board had the jurisdictional right to
award retroactively (Re OPSEU and the Crown in right of Ontario
(1983) 44 O.R. (2d) 51), and he invited the Board"not just to
award the grievor in this case the desired retroactivity but to
declare that the twenty-day rule does not apply'to retroactivity
in classification case~.
Counsel submitted that the only 'limitation on retroactivity in
5
classification cases should be delay, waiver or prejudice. In
Woods 224/79 (Swinton), the Board adopted the ruling in Keelinq
and said:
This does not mean that an individual has an
unlimited right to seek arbitration of a
dismissal or disciplinary action at any time,
even years after the event. He may be met by
evidence showing that he had accepted
management's action and therefore, there has
been a final determination under the ~
grievance procedure ."acceptable to the
employee" .... The onUs is on the employer to
show that there has been such an acceptance .~
of the decision by the employee ....
Alternatively, a grievor who proceeds under
s. 17(2)(c) of the Act may still be met with
an argument that the arbitrator should
declare the matter inarbitrable because of
undue delay. This is not an argument going
to the jurisdiction'of the arbitrator, as
were the earlier arguments. Rather this is a
decision on the merits of the case, taking
into account evidence of prejudice to the
employer's case caused by delay (at 4~$).
Since there was no statutory requirement for the application in
classification cases of the twenty-day rule,.and since there was
no waiver, prejudice or delay in this case, the grievor having
acted immediately upon learning of the Truch0n decision, the
employer having been aware that the classification of Senior
Construction Technicians was in dispute, and the ability of the
employer to present its case not bein~ hampered in any way, union
counsel submitted that the grievor should receive the same
retroactivity as did the grieVors in Truchon.
In his second submission, counsel argued that even if the Board
6
found that the twenty-day rule applied, there was jurisprudence
.supporting a departure from this rule where the facts and
circumstances required it. In general, those classification
cases that have departed from the twenty-day rule require
grievors to have communicated dissatisfaction with their
classifications .to their employer prior to the filing of a
grievance. Some cases have required a representation from the
employer that it agreed with the pre-grievance complaint, or that
the pre-grievance complaint would be addressed. Many of the~'
cases departed from the twenty-day rule in order not to
discourage parties' from, or penalize them' for, attempting to
resolve their disputes before resorting to ~ormal grievance
procedure.
In Sabo 777/86 (Dissanayake), a case which reviews a number of
the authorities on point, the Board considered the jurisprudence
relating to departure from the twentY-day rule in classification
casesl That case is different from the ins~ant one, in that in
Sabo the grievor had discussions with the'employer about her
dissatisfaction with her classification, while in the instant
case there were no such discussion~ between the grievor and the
employer. The Board in ~ held that in order to depart from
the twenty-day rule:
There must be evidence that the Employer was
.made aware expressly or tacitly, that the
employee is contemplating the filing of a
grievance if the outcome of informal
procedures i~ not satisfac%ory (at 27).
Counsel argued that the employer in the instant case was
effectively put on notice by the filing of the Truchon grievances
that Senior Construction Technicians in the northern region
considered themselves to be improperly classified. While the
grievor in this case did not personally bring his complaint to
the attention of management, the complaint itself was formally
brought to the employer's attention by the filing of the vari~u~
Tr~chon grievances. This was not, therefore, a case where the
employer could say that it was'caught unaware of the complaint,
and that to extend retroactivity to the grievor would be to
create an unfairness to the employer.
In union counsel's view, it should not be necessary for every
grimvor in a particular cl. assification to file grievances in
order to resolve an improper classification. The classification
of Senior Construction Technician's was held .by this Board to be
an improper one, and that ruling should apply, counsel submitted,
to every grievor in the classification. The employer has
acknowledged this principle in part by undertaking to reclassify
the grievor in the same way as the Truc~on grievors. Arguably,
it should also take the next Step and compensate the grievor in
the same way.
In support of this proposition'counsel drew the Board's attention
to the Baldwin & Lyng 0539/84 (Mitchnik) decision. This case
8
also concerned retroactivity. In Baldwin the grievor was ready
to grieve on a particular date but did~ not do so after being
advised that a classification review was underway. When the
Baldwin grievo~ learned that this ~review would not address his
particular complaint'he filed a grievance. The Board in Baldwin
determined that retroactivity should date from the time the
grievor first determined to file a grievance. In support of this
finding the Board said: - "
Where management has been made fully aware of
the complaint, and is actively in the process
of reviewing it, the.parties would be little
· served by the 'Board adopting a position which
would force the employees ·concerned to
"formalize", and potentially polarize, the
situation by grieving before' management has'
had the opportunity to render its decision
(at 16-17).
Union counsel also drew the Board's attention to Ms. Solberg's
addendum in the B~ldwin decision:
It has been mY experience that 'any claim for.
retroactivity invariably· involves . a
recitation of Article 27.2.1 which speaks to
the time frame within which an employee may
file a grievance. This is the clause upon
which 8oards have traditionally relied to
limit the term of any retroactive payment.
The Board has used this benchmark in the
belief that to do otherwise would be to
penalize an employer improperly 'for breach of
an agreement of which it was unaware. And,
in general, that's probably a fair enough
balancing of the interests at stake.
But, with respect, that kind of reasoning
fails in the case of a classification
grievance. Let' s not forget what a
classification grievance is all about. Quite
simply, it arises when a group of employees
asserts that the content of their work has
been incorrectly evaluated and that the value
of their work has been incorrectly
compensated. In a case of this sort, there
will never be any penalty to the employer;
quite the contrary, the prejudice has been
borne entirely be the'employees. All that's
happened to the employer is that. for a
specified period of time, it has had the
benefit of employees at a cut-rate cost.
In my view, that's why classification
grievances have to be. viewed differently by
the Board. The moment a group of employees
come forward with a claim that they have been
improperly classified (whether formally
framed or otherwise), lis the moment at which
an employer has been: put on notice. And
should the grievance succeed, then the
balancing of. interests surely makes a
compelling argument for retroactivity back to
the initial complaint.
Union counsel argued that this decision, .and the cases on which
it relies, as well as Ms. Solberg's addendum, was applicable to
the present case. The matter in dispute was brought to attention
of the employer by the filing of the Truchon grievances~ Counsel
argued that at the very least, this was comparable to the grievor
bringing up his complaint in a discussion with his supervisor.
The employer had formal notice 'of the complaint, and this Board
adjudicated on it. Not tO award the grievor the same
retroactivity as in i~ruchon would be to create a ~ituation where
the grievor in this case will be paid differently than the
grievors in Truchon, when all of these Senior Construction
Technicians were performing exactly the same work, side by side
at exactly the same time. This, counsel submitted, would be
grossly unfair.
10
Employer counsel argued that what would be unfair would be to
allow the grievor in this case to "piggyback" on the Truchon
decision. Moreover, counsel argued that just because the Truchon
grievances were-filed did not mean that the mmployer knew that
the Truchon griev°rs were improperly classified. It did not know
that until this Board released its decision in the T~uchon case.~
Since the employer did not know that the Truc~on grievors were
improperly classified, it could not have known that the grievor
'in this case was improperly classified, or that the griev6r' in
this case. ever intended to file a grievance. In~ these
circumstances it would not be equitable to require the employer
to compensate this grievor in the same way 'that it compensated
the Tr~chon grievors. Counsel argued that there was nothing
inequitable about two employees performing the same work at the
same time being paid differently, and that~ the employer was
acting properly in agreeing to compensate this grievor
retroactive twenty days Drior to the award i~ Truchon.
Employer counsel also argued that nothing in the Crown Employees
Col~ectiv9 Bar~akn~nq %ct entitled employees to infinite
retroactivity. Counsel submitted that the prejudice to the
employer was real if retroactivity was granted because the
employer would be forced to compensate employees who never
availed themselves of the right to grieve. Counsel drew the
Board's attention to the ~gnew decision 0236/88 (Dissanayake),
where the Board found:
These gr~evors are being penalized partly
because they received bad advice from the
bargaining agent and partly because they
trusted their Employer to be fair. In the
result some employees received compensation,
while others in the exact same position did
not. The Board agrees that the result is
unfair, and also that the Employer's position
in this regard is unlikely to promote ~ood
labour relations in the long .run. Despite
the temptation in these circumstances to
provide relief, we must, albeit reluctantly,
agree with Mr. Benedict's submission, that
this Board's role is not to dispense justice
but to apply the deal struck by the parties
(at .8).
Employer cou~sel argued that the ~gnp~ case was comparable to the
instant one in that the ~ew grievors sought to obtain the same
benefits as had been received by an earlier group of grievors as
a result of a decision of this Board.
Decision
In our view this grievance must succeed. In Smith 237/81
(Roberts), the Board said: "The usual rule is that, barring the
existence of circumstances which would make it inequitable for
the Ministry to rely upon it, retroactivity will be limited to
the period of time within which it was permissible for the
grievor to file his grievance" (at 6). We are of the view that
there are circumstances in this. case which would make it
inequitable to limit retroactivity to twenty days. In reaching
this decision we do not find it necessary to deal directly with
12
whether or not the twenty-day rule has any application to
classification cases. We reach.this result based on our finding
that this is one caDe where it would be equitable to extend the
period of retroactivity beyond the twenty-day period generally
awarded in classification cases.
We find support for this result based in the line of cases which.
have held that where the 'employer .has b~en put on notice of the
complaint prior to an actual grievance being filed, the period"of
retr°activity may be extended Where circumstances warrant.' ~'In
this case, ~the 'employer was put on notice by the filing of the
Truchon grievances.
Moreover, in this case, all of the employees eventually subject
to reclassif'ication work for the same 'Ministry. In addition, the
TruchoB grievors, and the'grievor in the instant: case, work in
.. the same DistriCt. It can hardly be said that the Minist~ was
taken unaware' by the instant grievance. It knew that the
clas si f ications of Senior construction Technicians in the
northern region had been brought into issue, and it knew that
should those classifications be found wanting that every Senior
Construction Technician would ha~e to-be reclassified. It would
defy logic, commonsense and fairness, to deny the grievance in
this case for to do so would mean that some Senior Construction
Technicians would receive reclassification, and presumably better
compensation, for their work, while their fellow employees,
performing exactly the same duties at exactly the same time would
not receive reclassification and compensation for the period in
.question.
In the OPSEU case, cited above, the Divisional Court held that
"the issue of the 'time when' can be just as much .a
classification grievance as a simple claim for reclassification"
(at 53). That is the issue in this case. The grievor haO both a
collective agreement and a statutory right to bring thf~
grievance to the Board. In adjudicating this grievance, we have
the jurisdiction to determine, as the Divisional Court put it,
the "time when." In our view, this is an appropriate case. to
extend the period of retroactivity.
We are also of the view that the Agnew case relied upon by the
employer can be distinguished from the instant case. The basis
for the distinction is that the Board'-in Agnew ruled that. the
grievance was out of time. The grievance was denied on that
basis. In the instant case, unlike the situation in ~gnew, there
is no question of timeliness. The grievor has a statutory right,
unhindered by time limits, to file his grievance. As Professor
Swinton noted in the Woods case, failure to expeditiously file a
grievance where a statutory right exists may go to the merits of
that grievance taking into account prejudice to the employer
caused by the delay. There was' neither delay nor prejudice in
the instant case. Indeed, if this grievance were to be dismissed
14
it is the grievor who would be seriously prejudiced in that
result as the employer would then receive, as Ms. Solberg noted
in her addendum in Baldw%R, "the benefit of employees at a cut-
rate cost." It is also worth pointing out that in fashioning
· this remedy the grievor is not receiving retroactivity to the
date of hire in a particular classification later determined to
be incorrect. To our knowledge, no panel of this Board has made..
such an award, and neither do we. Ail w~ are doing in this award
is extending the range of cases where the Board has ruled t~at
the circumstances would make it inequitable for the employer' to'
rely on the twenty-day rule.
· As the Board observed in OPSEU and ~inistry o~ the Attornev-
Gert-Crawl 71/76, "boards of' arbitration have consistently limited
an employee's right to claim damages for the breach of an
agreement to the period of time within which it was permissible
~ to file·his grievance." We do not take i~sue with this. We
~ecognize, however, as did the Board in BaldWin, that the twenty
day period is not a "hard-and-fast rule" (at 8). Very simply, the
twenty-day rule is not, in our view, a rule which applies in this
case.
Exceptions have been recognized to this twenty-day rule. The
instant case is another such exception. The grievor will not
receive "infinite retroactivity" by this award. All that he will
receive is the retroactivity awarded in the TruchoD case. The
1'5
employer will in no way be prejudiced by this result.
For the foregoing reasons we order that the employer compensate
the grievor with the same retroactivity granted in the Tru~hon
case.
DATED at Ottawa this ZZndday of November
~illiam Kaplan
Vice-Cha irDerson
D. Montrose
Member -