Loading...
HomeMy WebLinkAbout1990-1389.Mirasol.92-01-09 \ y \-, ... -. o~ " ~ .¡.;, ONTARIO EMPL0 YÉS DE LA COURONNE CROWN EMPLOYEES DE L'ONTARJO 1111 GRIEVANCE COMMISSION DE , SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITI: 2100, TORONTO, ONTARIO. MSG IZ8 TELEPHON€ITËL£PHONE.· (4 '6) 326-1388 ¡80, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO). M5G lZ8 FACSJMJLEJTÉlÉCOPIE: (416) ]26- J 396 1389/90 IN THB KATTBR OP AN ARBITRATION Onder TBB CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before TJIB GRIEVANCB SETTLEMENT BOARD B1l! TWE EN OPSEU (Mirasol) Grievor , - and - The Crown in Right of ontario (Ministry of Health) Employer BEFORE: P. Knopf Vice-Chairperson G. Majesky Member F'. Collict Member FOR THE M.A. Kuntz GRIEVOR Grievance Officer ontario Public service Employees Union FOR THE D. Jarvis EMPLOYER Counsel Winkler, Filion & Wakely Barristers & Solicitors HEARING April 5, 1991 I . .' . ,.. ~ ... DECISION This is a grievance over an alleged denial of salary increases. The grievance reads: STATEMENT OF GRIEVANCE I was denied annual salary increases for April 1, 1988, April 1, 1989 and April 1 , 1990 - contrary to Pay Administration policy 9-20-1 of the Ontario Manual of Adminißtration, Vol II: fA public servant, providing his work has been satisfactory, shall be granted an increase in salary annually or semi-annually, as prescribed in the applicable salary schedule, from his existing rate to the next higher rate in the salary range. f SETTLEMENT DESIRED: 1. I should be paid the appropriate salary commensurate to annual merit i.ncreases due a) April 1, 1988 - representing second step in salary schedule: (after 1 yr. service) b) April I, 1989 - representing third step in salary schedule: (after 2 yrs. service) c) April 1 , 1990 - representing fourth step in salary schedule; and (3 yrs. service) d) Accrued interest from April 1 , 1988 until final settlement. The grievance is dated June 16, 1990. At the outset, the Ministry took the position that the grievance is un time ly and there Earle inarbitrable under the parties' collective agreement. A further preliminary objection as to arbitrability was raised regarding the nature of the grievance itself. After hearing the argument of the parties on both issues, the Board gave an oral rul i n9 a t the hearing that the grievance must be dismissed on the basis of timeliness. We promised that we would record the reasons given to the parties in a formal award. The following is I ,. v ,- ~~' ~..." "',.9 - 2 - I therefore the Board's confirmation and explanation of our i oral ruiling. Articles 27.2.1 and 27.9 of the collective agreement read: ARTICLE 27 - GRIEVANCE PROCEDURE . . . . 27.2.1 An employee who believes he has a complaint or a difference shall first discuss the complaint or difference with his supervisor within twenty ( 20 ) days of first becoming aware of the complaint or difference. . . . . INSURED BENEFITS GRIEVANCE 27.9.1 Where an employee has a complaint that he has been denied benefits pursuant to the insured benefits plans specified In Articles 40, 41, 42, 44 and 57, he shall, first discuss ~he complaint with his supervisor within twenty (20 ) days of first becoming awàre of the complaint. 27.9.2 ( a) If the complaint is not satisfactorily resolved by the supervisor within seven (7) days of the discussion, the employee may refer the complaint, in writing, to the Joint Benefits Review committee established in Appendix 5 and addressed to the Compensation Programs Branch, Human Resources Secretariat, within an additional ten (10) days. (b) Any referral to the. Joint Insurance Benefits Review Committee under 27.9.2{a) shall include a release of information form (Appendix 6) completed, signed and dated by the employee. ( c ) The Joint Insurance Benefits Review Committee shall consider the complaint and the Compensation I . '- I I . ~ - 3 - " Programs Branch shall give the employee its decision in writing within sixty (60) days of the committee meeting at which the complaint is discussed. 27 .9.3 ( a) If the complaint is not satisfactorily resolved under 27.9.2, the employee may file a grievance in wri ting wi th the Director, Employer Relations Branch or his designee within seven ( 7 ) days of the date he received the decision under 27.9 .2(c). In the event tha t no decision in writing is received 1n accordance with specified time limits in 27.9.2(c), the grievor may submit the grievance to the Director, Employee Relations Branch within seven ( 7 ) days of the date that the Compensation Programs Branch was required to give its decision in writing in accordance with 27.9(c). (b) A submission of the grievance to the Director, Employee Relations Branch or his designee under this section shall be considered to be the second stage of the grievance procedure for the purpose of this Article. Numerous authorities of this Board, including Graham vs. Ministry of Transportation, GSB File 981/86, January 25, 1988 (Ratushny) and Tilden vs. Ministry of Housing, eSB File 800/89 dated February 6, 1990 (Simmons) have held that the time limits dealing with the filing of grievances under the collective agreement are mandatory and that there is no discretion similar to section 44(4) under the Labour Relations Act R.S.Q. 1980 available to the Grievance Settlement Board. Indeed, by the time of the Gembora and Ministry of Health decision, GSB File 930/89, dated May 24, 1990 ( Di ssanayake ) , the Union was conceding the mandatory nature of the provisions. The only subjective element that can apply to Article 27.2 is one that was recognized in the Bleach and . ~ .';f../_~ ~ ..,",' ",' . - .. ¡Þ....., . ~~L~ ,~f' .:~ . . /""\ ' ,-. .. - .'7 - 4 - '. .c Ministry of Correctional Services decision, GSB File 20/88, February 27, 1989 (McCamus) which respected both an objective and subjective interpretations of Article 27.2.1. That decision preferred the objective approach to the interpretation of Article 27.2.1, but recognized a ~ethod of ensuring fairness by allowing for a subjective approach: In our view, ·an objective approach to the interpretation of Article 27.2.1 ought to be adopted as a matter of general principle, provided that a subjective approach may be used in cases where that approach is more appropriate. The critical distinction to be drawn between cases in which the objective approach is appropriate and those where it is not rests on a determination as to whether or not the matter which is the subject of the "complaint or difference" under Article 27.2.1 is one which obviously raises issues related to the administration of the Collective Agreement. Thus, disputes with respect to travel expenses and overtime pay evidently relate to matters that would be provided for in the Collective Agreement. An employee who becomes aware of a "complaint or difference" concerning such a matter, should, in our view, be assumed to realize that this is a "matter which he or she could pursue through the dispute resolution procedures of the Collective Agreement. Thus, an employee who is disappointed by an Employer decision with respect to a matter of this kind must, whether or not he or she "subjectively" believes the matter to be potentially grievable, pursue the matter within the time frame stipulated in Article 27.2.1. Any other interpretation of the Agremeent would be inconsistent, in our view, with the stipulation in Article 27.1 to the effect that "It is the intent of this agreement to adjust as quickly as possible to any complaints or differences between the parties arising from the interpretation, application, administration or alleged . contravention of this agreement..." and its underlying rationale. Were this interpretation not adopted as a general matter, the Employer could regularly find itself in the following circumstances. The Employer could adopt an interpretation of the Agreement and plan and administer its affairs, including their budgetary implications, on the assumption that this particular interpretation of ~ I < <:" ."-- I - 5 - , . the agreement is acceptable to the Union, as ~videnced by the fact that it has not been the subject matter of a grievance. Several years, indeed, could pass on this basis only to have a grievance ultimately surface and reveal that the in te rpreta tion is not a proper one. If one adopts the "subjective" approach to Article 27.2.1 in such c i rcums tances, the implication would be that all past conduct would be subject to further grievances on the theory that only after the first grievance succeeded did various individuals appreciate that there has been a violation or possible violation of the provisions of the Agreement. In theory, the n, grievances relating to incidents, perhaps running back over a period of several years, could be the subject of timely grievances. This is a result which we view to be inconsistent with the policy expressed in Article 27.1 concerning finality and expedition in the resolution of disputes. Accordingly, we adopt the view that where obvious matters of contract administration are·concerned, an objective test should be adopted in the interpretation of Article 27.2.1. It follows from this that we view the previous Board decisions in Lam, Goheen and Graham as consistent with this approach. On the other hand, there may well be unusual circumstances in which a subjective approach of the kind utilized in Mitchell and pierre is appropriate. Thus, where the nature of the problem is one which an employee may reasonably not have understood to be a matter covered by the Collective Agreement or relating to its administration, it may be appropriate to delay the running of time under Article 27.2.1 until such time as the employee come s to appreciate that this is the case. In both Mitchell and Pierre, there were grounds on which the Board could have satisfied itself that the grievor in each case had initially reasonably failed to understand the potential applicability of the Collective Agreement to the situation at hand. We accept and adopt the policy considerations and interpretations se t au t 1n the Bleach award. - However, the case at hand relates directly to the issue of the rate of pay. The grievance itself is over the annual salary being paid. Nothing can bo more intimately connected to or re 1 a to more closely to the administration of a collective agn~emen t than the determination of a rate of " , -' .. . . .. r:~, r... ~ :" - 6 - ~ ,~ :\ pay. This is precisely the type of case that even the liberal interpretation of Article 27 in Bleach recognizes as one that must attract the applicability of an objective' appro~ch to timeliness. An employee who becomes aware of a "complaint or difference" concerning his/her rate of pay must be assumed to realize this is a matter which s/he could '( pursue through the dispute resolution procedures of the collective agremeent. As saict in Bleach at page 15: Where the matter is one which the employee ought reasonably to understand to be a matter of contract· administration, the test is an objective one and the time will begin running under Article 27.2.1 at the time when the employee becomes aware of thè decision or act of the Employer which adversely or prejudicially affects the employee. In the case at hand, the decisions of the Employer which allegedly adversely affected the Grievor occurred when her salary levels were fixed in April 1988, 1989 an d 1990., The evidence before us was that the Grievor did not know or appreciate that any problem existed with regard to her salary until the spring of 1990. This is' not disputed. Nor is it surprising, given the'complexity of the salary structure and the complicated impact of unusual negotiations on this particular class of employees. But no matter when she may have become subjectively aware of a potential breach of the collective agreement, she must be credited with knowledge of the "decision or act" of the change in her salary when she received her adjusted pay cheques. 56, it cannot objectively be said that she filed her grievance within 20 days of knowing of the Employer's decision to ,peg her salary at a rate that she now protests. Thus, we have reluctantly concluded that the grievance must be dismissed. We say reluctantly because the fact remains clear to the Board that the Grievor feels she .. ", .... 'f - ..... - 7' - I has been unjustly treated and would prefer a resolution on the meri ts of the issues. But given the¡ confines of the collective agreement and the Crown Employees ~ollective Bargaining Act, this Board is without the power to deal with the merits of the case. However, it is worth noting for the record that the Employer's decision to place the Grievor as was done on the merit grid was based solely on the Employer's interpretation of the parties' negot i a t(!d settlement of contract terms in 1988. The Employer made it clear to the Boa rd that its decision was not in any way based upon or intended to imply any lack of merit on behalf of the Grievor. Instead, the decision related solely to the Grievor's anniversary date of hire and how it impacted on the salary grid. The Grievor should not feel any personal insult or lack of appreciation by the Employer's decision because the evidence was that the Employer treated c!veryone with the same anniversary date in a similar fashion. Thus, for all the reasons stated above, the Board has , concluded that the grievance is untimely and ought to be dismissed on the grounds of timeliness. Given this conclusion, we need not deal with the Employer's other objections. DATED at Toronto, Ontario th is 91th day of January, 1992. /ß) Member IJ ~ . y- _-'---/. ~~Le F. C!511 i c t - r1cmber \.....=---:::::. .