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HomeMy WebLinkAbout1992-3039.Chircop.94-05-25 ~ .,",-~......,.-- :'1- ~. ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE .. . . . SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100 TORONTO, ONTARIO. ,M5G lZ8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST ElUREAU 2100, TORONTO (ONTARIO) M5G lZ8 FACSIMilE ITElECOPIE (416) 326-1396 i I , 3039/92, 3075/92 I IN THE ~TTER OF AN ARBITRA~ION I Under THE CROWN ~MPLOYEES COLLECTIVE BARGAINING ACT I Before I THE GRIEVANCE SETTLEMENT BOARD BETWEEN I OPSEU (Chircop) Grievor - and - The Crown iD Right of ontario (Ministry of C0rrectional Services) 1 Employer BEFORE S Kaufman vice-Chairperson E. Seymour Member D. Montrose Member FOR THE A. Lokan GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors, FOR THE M. Mously EMPLOYER Grievance Adm,lnistration Officer Ministry of Correctional Services HEARING April 26, 19914 ~ 1 "i~ -, I: INTERIM DECISION Two grievances of Mario Chircop are before this panel The first grievance, dated August 28, 1992, indicates that Mr Chircop grieves" wrongful dismissal, discrimination, harassment and intimidation ..". The second grievance, dated September 24, 1992, alleges that Mr Chircop was improperly paid for overtIme, hours Mr. Chircop was employed as ,a Cook 2 at the Stratford Jail His employment history is evidenced by a series of documents titled Appointment to Unclassified Service whlch cover the periods June 12 to September 11, 1989, September 12, 1989 to March 11, 1990, March 12 to September 11, 1990, September 12, 1990 to January 31, 1991, February 1 to July 31, 1991, ~ugust 1, 1991 to January 31, 1992 and February 1, 1992 to July 31, 1992 It is not in dispute that Mr Chircop was employed in the unclassified service and that his last Appointment expired on, July 31, 1992 and was not renewed. It is upon that basis that the preliminary objections are raised. The parties agreed that on April 26, 1994 th~ panel would hear evidence and argument solely with respect to the employ'er's preliminary objections as to the board's juris- diction to hear the grievances on the merits, and to the timeliness of the grievance dated September 28, 1992. They agreed that if the panel upheld the preliminary objections of the employer, the matter would end there and that if the panel dismissed the preliminary objections, it would remain seised of the grievances and near evidence on the merits 1 The "Evidence: Brief 'evidence regarding those matters was heard from Douglas Brunton, who had been Superintendent of the Stratford Jail during the spring and summer of 1992, and from the grie- vor In the course of evidence, the employer indicated that its position regarding its preliminary objections was based upon the assumption that if heard, the union's "best case" , -.~-~ ._~.....- ,. "i,. 2 would be made out On the basis of the employer so indicat- ing, the union refr~ined from cross-examining Mr Brunton, subject to the proviso that it was not agreeing th~t the non- renewal of Mr Chircop's appointment was simple and untaint- ed, or that the grievor had in any manner waived his right to grieve the payment of hours wo~ked 'overtime The Stratford Jail was closed temporarily for construc- tion commencing in the spring of 1992 The grievor was laid off from his unclassified position effective April 11, 1992 1 He was advlsed by a letter from the Superintendent dated March 31, 1992 that the closure was anticipated to be twelve weeks long, and that he would be recalled upon the reopening of the Jail The panel was advised that the grievor subse- quently received a copy of a memo addressed to all staff from the Superintendent dated June 3, 1992, advising that the Superintendent anticipated the jail would reopen the last week o.f July Mr Brunton testified, among other things, , that the grievor did not finish out his last contract due to the temporary closing of the j'ail, that the grievor's con- tract expired while the grievor was laid off, and that the grievor was not working because he, Mr. Brunton, ~did not renew the grievor's contract while he was laid off It is not in dispute that the overtime grievance was not filed until September 28, 1992 and that the g:r:ievor's comp.,.. laint about the manner in which he had been paid for overtime was not disclosed to the employer prior to the filing of that grievance The union advised, without leading evidence (on agree- ment of the parties) that in the spring of 1992 the employer held a competition for the position of Cook, Regular, Part- time, as distinguished from the grievor's unclassified posi- tion It advised that the grievor participated in that com.,.. petition under the assumption that the position was different from the' classified position that he held, and that t.he em- ployer did not indicate that the posted position was "any- thing like" the grievor's unclassified position. It advised I ~- ~~_._~. "_. -.- .' -- .' fj; .., "' that on August 17, 1992, without prior n9tice, the employer told the grievor that it had filled his unclassified position on the basis of the results of that competition, and that his contract would not be renewed It advised that this was the first time that the_grievor was informed that his unclassi- fied position had been the subject of the competition and that the person who stood first in the competition was given the Cook, Regular, Part-time position, and the person who stood second was given the grievor's unclassified position rhe union also advised, again without evidence, on agreement of the parties, that during his employment the grievor had had a problematic relationship with one of' ):lis supervisors and had at one point filed a complaint against that supervisor afte~ the supervisor and he had been in an altercation in a bar during which the supervisor had made a slur upop thegrievor's Italian ancestry The supervisor had been disciplined as a result The grievor testified that he first learned that he had not been properly paid at time-and-a-half for shifts worked in. excess of 8 hours from Steward Dan Gravier "after the dismissal" He testified that Mr. Gravier then advised him to grieve the matter He testified frankly that he could not remember the date upon which he first learned that he co~ld grieve the overtime issue, and that he had met with union r~presentatives several times between the day he first dis- cussed the non-renewal of his appointment with~nion repre- se~tatives, and September 24, 1992, the date upon which the overtime grievance is dated. He testified that prior to speaking with Dan Gravier and Rick Kloss, h~ thought that the entire 12 hours of his 12-hour shifts were to be paid at straight time and that he was not aware of the right ~o grieve the matter of overtime before he met with the union. The grievor testified that he was not certain whether the last 12-hour shift he worked occurred 6 months prior to Sep- I tember 24, 1992 The Attendance Reports indicate that the ~ "''''---_._'''''''-''---'"---'-' ......... '-, r,: .. 4 ~- last 12-hour shifts the grievor worked were March 28 and 29, 1992 The Arguments: The employer argued that the board is without jurisdic- tion to hear either of the grievances beca~se they are both improperly before lt It argued in the alternative that if I the grievances were not improperly before the board, there is no remedy available, and as no remedy is available, the board should not hear the grievances on the merits with respect to the grievance dated August .28, 1992, the employer submitted that after July 31, 1992, the expiry date of the grievor's last appointment, pursuant to s 9 of the Public Service Act, R S 0 1990, c P 47, the grievor c~as~d to be a public servant on that date and the board has no jurisdiction to assume over any complaint presented by the grievor The employer submitted that it is beyond the jurisdic- tion of a Grievance Settlement Board panel to review the ex- piration of or reasons behind the non-renewal of an appoint- ! ment to the unclassified service, that the employer is not obliged to prove good faith before a board declines jurisdic- tion over the non-renewal of such an appointment and cited OPSEU (Milks) and Ministry of the Attorney General 1000/92 (Low) in support of these submissions rIt referred to OPSEU (Houston/Campbell) arid Ministry of Correctional Services 1799/90, 1803/88 (Verity) in support of J its position that there is no remeqy where an appointment to the unclassified service had not been renewed It advised \ \ that in Harcourt/Campbell a Grievance Settlement Board had heard evidence on the merits with respect to the non-renewal of Appointments to unclassified positions, that the Division- al Court determined prior to the Board's decision on the mer- >, its that certain other grievors had been properly appointed to the unclassified service under s 8 of the Public Service Act, and that they ceased to be employees under s. 9 of the I ;! ~ ..._~ ~ ....--.,-t--.. ./ .., ,;, Act on the expiry of their appointments, and that in view of that decision, the Harcourt/Campbell board upheld the preli- minary objection that their grievances as to the non-renewal of their appointments were not arbitrable, and the board decl1_ned, to grant a remedy. It argued that as Mr. Chircop ceased to be an employee under s 9 of the Act, and that as Mr Chircop's case was not distinguishable from the Houston/ Campbell case, and as the Houston/ Campbell board had dec~ lined to award a remedy after considering the Divisional Court's decision [inOPSEU (Pa~ry~ Porter, Singh) and Her Majesty the Oueen in Right of Ontario and the Ontario Public Service Grievance Settlement Board (unreported) 4 February 1993 and Her Majesty the Oueen in Right of ontario and OPSEU (Lavoie) and the Ontario Public Service Grievance Settlement Board (unreported) 12 February 1993] despite having heard evidence as to the merits of the grievances, that this board should accordingly decline to hear this matter, both because it does not have the jurisdiction to hea~ a grievance from a non-renewal of an Appointment to an unclassified position, but also because there is no jurisdiction to grant a remedy with respect to the timeliness of the overtime grie- vance, the employer argued that the grievor realized that he had been working 12-hourshifts from June, 1990 to March, 1992, a period of almost 2 yea~s, and that management was not aware of a complaint during that period In support of the position that the overtime grievance was out of time, the employer submitted that the grievor did not work any shifts in excess of 8 hOlirs for 6 months prior to being laid-off, and that he did not work any shifts at all during the 5 months ,preceeding the non-renewal of his contract. It argued that the time limits in Arts. 27 2 1 and 27.13 and the grie- vor's failure to discuss his complaint or grievance with ~is supervisor within 20 days of first becoming aware of a com- plaint or grievance, which discussion, it submitted, is a mandatory first step to a grievance, results in the grievance being deemed withdrawn ! _ _ _. ~.. ~.... _. ., .......,,'_.-"<. __ r , , . ...." .-~-_ :.-::;. 7::. _ _ _._..... ':- ;t"':7"-,;\' --- ....... .- ,~ 6 The employer argued that the board's practice respecting retroactivity of remedies has been to apply the 20-day rule It argued that an employee has an obligation to inform his or her employer of a complaint, and that the employer cannot be \. _penalized for a breach of which it is not aware It ~eferred '- QS to OPSEU (Jansson et. al.) and Ministry of Community and Social Services and Ministry of Correctional services 1888/89 (Gorsky) ; and to the excerpt at p 26 therein from OPSEU (Stephen C. Smith) and Ministry of Community and Social Services 237/81 (Roberts) which states At the hearing, the Union submitted that in classi- fication cases, the usual arbitral rule regarding retroactive payment for continuing breaches, which in the case of this Collective Agreement would limit retroactivity to 20 days before the date of filing of the grievance does not apply. Several cases were cited in support of this prop9sition; however, upon review, they did- hot seem to be capable of supporting any such wide rule. In fact, they seemed to be confined to their own peculiar circumstances For example, in Re Schmidt & Mini- stry of Environment, G S B. 5/76 (Beatty), the grievor was prevented from grieving until the rele- vant class series was introduced and made retroac- tive by the Ministry. In Re Parise and Ministry of the Attorney-General., G.S.B. 238/83 (Roberts), the Board merely corrected an error that the Ministry had made in selecting an appropriate retroactive date for a new classification Neither of these cases involved the Board in rejecting on some gene- ral basis the usual rule regarding retroactive payment for continuing breaches of a collective agreement. The usual rule ia that, barring the existence of circUmstance 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. In the case of this Collective Agreement, that period is 20 days prior to the day upon which the grievance was actually filed. . The employer submitted that Jansson indicated that Grievance Settlement Boards should extend retroactivity only in rare cases It submitted that the ordinary rule clearly applies -- ----_. ~~--- ":- ,-' - . - - .. -- -- _. --- -<__~~~_~_r~---2:s::-==.~; ----_..._-~ ---- - - I 7 in this case It submitted that even if the board determined \ that the grievance was timely, because the board's remedial scope was limited to damages or an award bf the correct rate of pay retroactive 20 days from September 24, 1992, and because no work occurred in that period, the board could not and should not assume jurisdiction over this grievance The union d~d not dispute that the dismissal grievance was founded on the n6n~renewal of an appointment to the classified service It argued that this board could find jurisdiction in the employer's statements to the grievor, upon which an estoppel could be founded, contained in the Superintendent's letter to the grievor dated March 31, 1992 to the effect that his employment would be continued. i e that he would be "recalled" upon the reopening of the Jail, and in the Superintendent's follow-up memo dated June 3, 1992 The union argued in the alternative that the board could assume jurisdiction on the basis of the allegation that the employer's actions or motives were discriminatory or in bad faith It distin9uished the instant case from the Houston/ Campbell case, supra, on the basis that in Houstonl Campbell no issue of estoppel or discrimination was raised. It argued that to conclude from Houston/ Campbell that although a board has found there has been a breach of a collective agreement or a justiciable action or failure to act that such a board cannot provide a remedy is to read that case too broadly. The union referred us to Re Pacific Press Ltd. and Van- "- couver-New Westminster Newspaper Guild. Local 115 (1~87), 31 L.A.C. (3d) 411 (Munroe) and Re Grey Bruce Regional Health Centre and O. P . S . E . U. , Loc. 235 (1993) 35 L.A C (4th) 136 (McLaren) in support of its position that the employer's con- duct gave rise to an estoppel upon which this board could assume jurisdiction It pointed out that in Grey Bruce the board found an estoppel in the context of a preliminary ob- jection, but reserved on the issue of remedy. It submitted , .- ~,'H ._._._ ,. .. ., .~ ""'''. -- I'.,.~~"~.-" ''--"1- --;7;"~::'-'--:- 8 I / that the issue of remedy is more appropriately addressed af- ter dealing with the merits of the griev~nce The parties were agreed that whether estoppel. could be used as a sword rather than a shield did not have to be argued, and we concluqe that they were in agreement tpat estoppel can be used as a sword, i e as the foundation of a complaint The union argued that the promises or statements upon which the grievor had relied to his detriment were in a form upon which it was reasonable for him to have relied. It sub- mitted that the letter and memo made no disclaimer regarding the promise of recall, e g a statement indicating that the employer did not mean what it had said, and that a employee wouid take the employer at its word It submitted that the grievor detrimentally relied upon the employer's statement in that a) between March 31 and August 17, 1992 the grievor did not look for a permanent replacement job, and that at most was looking for a temporary position during that period, in i reliance upon the statement that he had a job to return to; b) he participated in the job competition for Cook; Regular, Part-time in hopes of being successful, but that he did not participate in it it the same way that he might have if he had known that he was competing for his unclassified position; c) in the first week of August, 1992, believing he had continued and stable employment, the grievor put in an offer on a house, which was immediately accepted, and under which he became obligated to buy the house, and the transaction subsequently closed. The union argued that in OPSEU (pitirri) and Ministry of Correctional Services 1685/92 (Kaplan) the board dismissed a preliminary objection on grounds similar to those argued ih this case, where the grievance alleged a violation of Art. A of the collective agreement, and on that basis found the ju- risdiction to hear the grievance of an unclassified employee -. ~ .. -.. -, .. .< 1"l....~-....._ _''''';-e>:'. _.-t- --- < ~_.'f-'- ~ ""'.!"~,r~"".. ;-.. _ _ n ,_~ __. ~_ . """"'";. 'r'- ---....~-:--:~~ ( 9 whose appointment had not been renewed. The union argued that as the August 28, 1992 dismissal grievance alleges dis- crimination, this board could and should assume jurisdiction to hear that grievance on its merits The union argued that in OPSEU (Merson) and Ministry. of Correctional Services 16/93, 299/93, 1162/93 (Gray), which was heard in January of 1994, after the cases upon which the employer relied, the grievance arose from a relea~e from the unclassified service and it was alleged that the release was in violation of the Human Rights Code In Merson, it submit- ted, the union had alleged that the grievor's release was a pretext for the employer's decision to discriminate against the grievor .as a result of his having grieved the denial of a particular assignment following his recovery from an injury, It submitted that the board in Merson followed the decision in Pitirri, and assumed jurisdiction to hear the grievance on the merits It argued that if Mr Chircop's release was dis- criminatory, it violated Art A of the Colleqtive Agreement, a~d that as a result this board could and should assume jurisdiction to hear the grievance on the merits. The union agreed that the general principle is that failure to renew an appointment is a management right which cannot be examined by a board. It submitted that despite the general principle, management rights cannot be exercised in a manner which infringes the collective agreement, and that in such circumstances the board can depart from the general principle The union submitted that the Milks case, upon which the employer .relies, relied upon t'he reasoning in Shipley 0223/86 (Samuels) It submitted that when Shipley was decided, ~rt. A was not in the Collective Agreement and the board was being asked to exercise the jurisdiction of the Human Rights Com- I mission It argued that the Milks case states that an alle- gation of bad faith is not sufficient reason to depart from the general principle, but that Merson and pitirri both ~ndi- --_.- - . .. - ~-""--- -- . LL.. ~ . . ~_ .l.~.~~ ""'-' - - ------ \ 10 cate that if the grievance alleges a breach of Art A, a board has jurisdiction to hear it with respect to the timeliness of the overtime grie- vance, the union submitted that OPSEU (Ellis). and Ministry of Community and Social Services 2473/92 (Low) and OPSEU (Thom.... son) and Ministry of Correctional Services 1612/92 (Stewart) interpret the language in Art 27 2 1, "Anyone who believes that he has a complaint or difference shall discuss the com- plaint or difference with his supervisor within twenty days of first becoming aware of the difference" as meaning that -the period in which a grievor must file a grievance starts to run when the grievor's awareness of the difference arises, and that unless the grievor is aware that he has ~ grievable complaint or agreement at the time of the commencement of the facts giving rise to the complaint or difference, the period does not begin to run from that time. It submitted that the oivisionalCourt in Ontario (Minister of Correctional Ser- I vices) v. O.P.S.E.U. (1990), 74 O.R (2d) 700 (H.C.J ). In reviewing the G.S B.'s decision in pierre a9reed with the interpretation of 27.2 1 found in Ellis and Thomson, supra, and confirmed that the awareness contemplated in 27 2.1 is the subjective awareness of the grievor It argued that in Ellis the grievor followed a union 1 representative's incorrect advice that she was not entitled to grieye a job competition until she had received the rea- sons for the decision As a result her grievance was filed outside of 20 days of the date of the decision; the board relied upon the grievor' s subj':ective understanding and held th~t time limits began to run against the grievor only when she subjectively understood that she had a complaint or dif- ference arising from the collective agreement and the right to grieve The union argued further that in OPSEU (Vandenheuvel et. al. ) and Ministry of the Environment 2086/91-2090/91 ( Low) , a grievance as to standby pay, the board declined to conclude that recovery was limited to the 20 day period prior to the -- --' ,.,.-..... .-""--~ _-' '::~-~"::"';~~"1'.:"'..:'~-~ _~ __.~_"-,- _-"__ __ ~'"----.-_ -- l 1 1 date of filing the grievance It submitted that Vandenheuvel determined that the triggering- event after which ti~e begins to run for the filing of the grievance is the onset of the subjective belief, and that OR a preliminary objection as to jurisdiction, the employer must demonstrate that the grievor had a subjective awareness of the comp~aint or difference, and that the grievor refrained from filing the grievance It submitted that the employer had not satisfied the onus which Vandenheuvel placed upon it, to demonstrate the grievor's pubjective awareness of grounds for complaint It submitted that the Vandenheuvel board declined to restrict what it could award as a remedy on a preliminary motion, and deter- mined that that issue was best argued after having heard i ~vidence on the merits The union argued that although Mr. Chircop's evidence was inconclusive as to when i e at which meeting with the union he became aware that he had a complaint and a right to grieve regarding overtime, that if he became aware of that right on August 28, 1992, the day the dismissal grievance was ,1 filed, then September 24, 1992 would be within 20 days of August 28, 1992. \ with respect to the submission that the grievor had failed to speak with his supervisor within 20 days of becom- I ing aware of a difference, and the effect of Article 27, the union submitted that the requirement to speak to a supervisor does not apply if an employee is already off work when he becomes aware of the right to complain. 'It argued that Art 27 2.1 and 27 2 2 , when read together, give an employee 20 days from the time of becoming aware of the complaint or dif- ference within which to speak to the supervisor, and a fur- ther 10 days after the discussion to file the grievance. It submitted that as a result, the board can find that the grie- vance was timely if it had been filed within 30 days of the grievor having become aware of thel overtime matter In reply, the employer argued that because the Pacific Press and Grey Bruce cases did not involve statutory provi- J I - _,J I ~- 12 sions comparable to s 8 and 9 of the Public Service Act, they were distinguishable and inapplicable to this case It / argued that the board in Houston/Cam~bell had said that be- cause there was no violation there could be no remedy, and that at page 5 of its award, the language was quite explicit It argued that the board in Houston/Campbell relied entirely on the effect of s 8 and 9 to determine that there was no remedy available, and that as s 8 applied to the grievor's appointment ahd s 9 applied to the non-renewal of his appointment, this board should decline jurisdiction of the grievances 'The employer submitted that it did not see the pitirri and Merson decisions as inconsistent with Milks, in which the board declined ~o take jurisd~ction, irrespective of whether or not bad faith was present in the decision The employer submitted that Merson and Pitirri dealt with a violation of Article A, and not b~d faith. It submitted that the union's position in this case, that there was an estoppel, falls under bad ~aith, rather than a violation of Art A It sub- mitted that an 'estoppel cannot form part of case in which a i I contract has not been renewed The employer submitted that if the board could. take jurisdiction, it would be on t'he bas is of ,an Art A infrac- tion On that basis, the empLoyer argued, the union would be limited to those grounds, and restrictions as to rememdies, which could be argued at a later point. i with respect to the timeliness of the overtime grie- vance, the employer advised that it did not challenge the principle of subjective awareness. It argued that there was an obvious and lengthy pe'riod between the "occurrence nand the grievor's awareness, as claimed by the union It submit- ted that the onus was upon the union to clearly demonstrate why the awareneSs was delayed and that the union had failed to do so clearly and cogently. It submitted that the discus- sion with the union must have taken place around August 28, 1992 It argued that August 28, 1992 was 4 to 5 months after .' . ;" I. .~: ' -r;---~ I; the 12-hour shifts worked, and well outside the mandatory Art 27 2 1 time limits It argued with respect to tre union's submission that the grievor had not had a supervisor I to complain to after he ceased to be an employeee, that there had been no indication that the grievor had any other commit- ments that kept him from tendering the complaint It argued that the overtime grievance should be deemed withdrawn, but that If the board did find- that it had been filed within the time limits, that the board should restrict the retroactivity of the remedy to the 20 days prior to the date of the grievance The employer submitted that the Vandenheuvel decision said that you cannot make a preliminary objection based on limitation as to remedy, and that that decision was inconsis- tent with previous case law The employer submitted that it is correct to argue the unavailability of a remedy on a pre- liminary objection It submitted that in view of the time and expense of matters being heard on their merits, that it was unreasonable to say that the board should not consider the unavailability of a remedy in determining whether to hear / a grievance on the merits. Applicable Statute Law and Collective Agreement Articles: The following provisions apply to the prelirnin~ry objections: The Crown Employees Collective Bargaining Act, R S 0 1990, c. C.SO, s 18 ( 1 ) a 18 (1) Every collective agreement shall be deemed to provide that it is the exclusive function of the employer to manage, which function, without limit- ing the generality of the foregoing, includes the right to determine, a) employment, appointment, complement, organization, assignment, discipline, ~ismissal, suspension, work methods and procedures, kinds and locations of equipment and classifications ...-- _ _ . . ~i"'" -.- -- ,=-~. ... - .... ,.......~.. ~~.,.;;._.- 14 The Public Service Act, R SO 1990, c P 47 8 ( 1 ) A minister or any public servant who is designated in writing for the purpose by him or her may appoint for a period of not more than one year on the first appointment and for any period on any subsequent appointment a person to a position in the unclassified service in any ministry over which the minister presides "\ Any apoin~ment made by a designee under '( 2 ) subsection ( 1 ) shall be deemed to have been made by his or her minister 9. A person who is appointed to a position in the public service for a specified period ceases to be a public servant at the expiration of that period The following provisions of the collective agreement apply ARTICLE A - NO DISCRIMINATION/EMPLOYMENT EQUITY A 1 1 There shall be no discrimination practised by reason of race" ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, or handicap, as defin~d in section 10(1) of the Ontario Human Rights Code (OHRC) J UNCLASSIFIED STAFF OTHER THAN SEASONAL EMPLOYEES OVERTIME 3.4 One and one-half (1-1/2) times the basic hourly rate shall be paid for authorized hours of work performed/ (a) in excess of seven and one-quarter (7- 1/4) or eight ( 8 ) hours per day, as applicable, where emPloyees work a regular thirty-six and one-qu~rter (36- ( 1/4) or forty (40) hour work week, as applicable, or (b) in excess of the scheduled, hours for employees who work on a regularly scheduled work day exceeding (8 ) hours, or (c) in excess of the employees' regularly scheduled work week, or I. --......-.....-- .-.,.--., .-=-.-~-:::-....-...-.... I 5 (d) in excess of thirty-six and one-quarter (36-1/4) or forty (40 ) hours per week where employees do not have regularly scheduled work days OTHER APPLICABLE ARTICLES 3 16 The following Articles shall also apply to uncLassified staff other than seasonal employees Articles A, 1, 4 1, 4 4, 6, 7 7, 9, 11, 12, 15, 16, 17, 18 5, 21, 22, 23, 25, 27, 29, 32, 33, 34, 35, 36 and 86 ARTICLE 27 - GRIEVANCE PROCEDURE 27 1 It is the intent of this Agreement to adjust, as quickly as possible any complaints or dif- ferences between the parties arising from the interpretation, application, administration or alleged contravention of this Agreement, including any question as to whether a matter is arbitrable 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 twen- ty (20) days of first becoming aware of the complaint or difference. 27 2 2 If any complaint or difference is not satis- factorilysettled by the supervisor within seven (7) days of the discussion, it may be processed within an additional ten -(to} days in the following manner STAGE ONE 27 3 1 The employee may file a grievance in writing with his supervisor. . . . DISMISSAL 27 8 2 Any employee other than a probationary employee who is dismissed shall be entitled to file a grievance at the second stag~ of the grievance procedure provided he does so within twenty (20) days of the date of the dismissal 'J GENERAL 27 13 Where a grievance is not processed within the time allowed or has not been processed by the employee or the Union within the time pre- - -~..~ - -- ----'>..-- . ..._._~~ .."_... ... ..~ . -~, -~.. -----<-'-"-'....- _: ~..... ~':' - -,' ~ - 16 scribed it shall be deemed, to have been with- drawn 27 14 In this Article, days shall include all days exclusive of Saturday~, Sundays and designated holidays j 27 16 The Grievance Settlement Board shall have no I juri~diction to ,alter, change, amend or , enlarge any provision of the Collective I Agreement Reasons and Conclusions: J We have consid~red the cases submitted by the parties as well as the above-noted provisions in the statutes and collective agreements to resolve the preliminary objections It is clear as a first principle that the appointment (and non-appointment) of employees to the unclassified public service is a function reserved exclusively to management by statute and that upon the expiry of an appointment to the" unclassified public service, tpe person so employed ceases to be a public "servant In situations where an employee's ap- pointment is simply not renewed, that will usually end the , matter, and a panel of the Grievance Settlement Board will i not take jurisdiction of a grievance from the non-renewal or dismissal, notwit~standing an allegation of bad faith: Milks, supra A corollary of that first principle is that where there is no jurisdiction to consider a grievance that has arisen from the expiry of an appointment to the unclassified public service, despite a board having heard evidenqe as to the me- rits, there is no jurisdiction to award a remedy Harcourt/ Call1Pbell, supra. Harcourt/CaIllPbell was decided on "December 3, 1993 The panel in that case had determined on February 18, 1992 that the grievors had been improperly appointed to the unclassified service and remitted the remedy to the par- ties, but had retained jurisdiction with respect to remedy When the matter of remedy was returned to the panel, the Divisional court decision, supra, in the Parry, Porter & - -- - - -- - -_. -- --- - -.-- - ) ,~ / 17 Singh cases, dated February 4, 1993, indicated indirectly \ that the Harcourt/Campbell panel's initial finding of impro- per appointment had been in error In view of its initial determination on the merits having been in error and there- fore in excess of its jurisdiction, the panel determined that it could not award a remedy, despite having earlier reserved jurisdiction to do so. To grant a remedy would have there- fore, in the circumstances, further exceeded the panel's jursidiction. That is as far as the Harcourt/Campbell case goes The Pitirri and Merson cases add further corollaries to the above-noted first principle. The Pitirri deicison is dated May 3, 1993, a few months after the afore-mentioned Divisional Court decision. The pitirri grievance alleged \ that the Ministry had breached Art. A of the collective agreement in its conduct leading up to its failure to renew the grievor's appointment to the unclassified service on terms that would accomodate his post-accident condition The duty to accomodate was argued to fall within Art A. On a preliminary objection as to jurisdiction, the employer argued that the employee had ceased to be a public servant when his contract was not renewed, that the employer had acted in good faith, that the grievor had no rights under Art A when he r ceased being an employee, and that the Grievance Settlement Board therefore had no jurisdiction to hear the matter. The board took note that on the facts before it, the grievor would have been given another appointment and have remained an employee, a member of the unclassified service at the time of the grievance if, prior to the expiry of his last appointment, he had accepted a further appointment on the terms that had been offered by the employer. It found it had jurisdiction to hear the grievance on the merits and dismis- sed the preliminary objection, reasoning that the grievor's entitlement to grieve under Art A arose while he was still 9n employee, i e before his appointment was not renewed and before he ceased being a public servant. Notwithstanding its ( - I 8 emphasis on the fact that the grievor might have remained an unclassified employee, albeit on unattractive terms, and ' therefore have retained the status to grieve the employer's conduct under Art. A, the board questioned the correctness of concluding that an unclassified employee's rights are extin- guished when his appoin"tment expires It noted that some collective agreement rights have a necessarily continuing nature and that an alleged violation of Art A is properly I within the jurisdiction of the Grievance Settlement Board As the Pitirri case, supra, was not judicially reviewed, it must be assumed to have been accepted as correctly decided, and we agree with the reasoning in that case The Merson decision is dated March 23, 1994 The board considered whether there was jurisdiction to hear a grievance which alleged that an offer to renew an appointment to the unclassified service for 3 months rather than for 6 months as had been done previously. The union argued that the employ- er's actions constituted discrimination against the grievor, arising out of his having presented 2 earlier grievances, and that but for the discrimination, the grievor's contract would have been renewed The union argued that the decision not to renew the grievor's 6-mo. contract occurred while the grievor was still ~mployed and covered by the collective agreement, and that the employer's decision constituted discrimination ~ contrary to Art. A of the collective agreement. ThejMerson - board, supra, at p 9 considered Pitirri, and said: The fact that there is no issue of accomoda~\ tion here is not a material distinction for pur- poses of the question now before us Here, as in Pitirri, the union alleges that a decision not to renew the contract of an unclassified employee, made while the individual was still employed and covered by the parties' collective agreement, con- stituted discrimination contrary to Article A of the collective agreement Here, as in Pitirri, the union alleges that but for the discrimination, the grievor's contract would have been renewed As in Pitirri, the issue at this stage of these proceed- ings is not whether these allegations are true; the issue is whether they raise an arbitrable dispute 1 I 9 In Pitirri, the Board found that it did We do too, and for essentially the same re~sons. We conclude that the grievance is arbitrable in so far as it alleges breaches of Article A That allegation puts in issue the employer's moti- vation for the two impugned decisions The other grounds argued by the union also focus on the em- ployer's motivation for those decisions The board in Merson assumed jurisdiction on the merits, on the basis of an alleged violation of a breach of Art A Apparently the issue of whether the absence or unavail- ability of a remedy could or should cause a board to decline jurisdiction was also before the Merson board, and the board remarked, supra, also at p 9: We do not propose to determine at this preli- minary stage whether we could grant the grievor a remedy if the union were to prove that the employ- er's decisions involved retaliation for filing grievances or some other form of bad faith but not discrimination contrary to Article A. It is not apparent to us that any answer to that question would substantially shorten or simplify the hearing on the merits which must now follow. Accordingly, the question is best left to be determined, if that is then still necessary, after we have heard what~ ever relevant evidence the parties wish us to hear. As in Merson, it remains to be seen whether we could grant a remedy if the employer's decision not to renew the grievor's contract did not constitute a violation of Article I A or another article of the collective agreement. However, the first grievance before us alleges, among other things, discrimination As such, on the basis of the reasoning in Pitirri and Merson, with which we find no reason to disagree, , this board is obliged to hear that grievance on the merits and we will do so on the basis of the allegation of discri- mination and implicitly a violation of Art. A \ The union's submissions raise the possibility of thil:? board also founding its jurisdiction upon an estoppel. The elements of estoppel are cited in Pacific Press, supra, at p 422, as found in Combe v. Combe, [1951] 1 All E.R 767 at p. 770 (per Denning L.J ) : "- . -- - ....._---.-. -.." . ---- 20 .J The principle, as I understand it, is that where one party has, b~ his words or conduct, made to the \ other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then, once the other party ha$ taken him at his word and acted on it, the one who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal rela- tions as if no such promise or assurance had been made by him, but he must accept their legal rela- tions subject to the qualification which he himself has so introduced, even though it is not suppported inppint of law by, any consideration, but only by his word At this stage of the proceedings, we have received docu- mentary evidence purportedly ~elated to an estoppel, and have heard submissions The parties agreed to be brief regarding their evidence on the preliminary objection At this point we have no evidence with respect to "intention to affect the legal relations between them and to be acted upon according- ly" or with respect to detriminal reliance Because of the very limited evidence regarding this issue, we are unable at this stage of the proceedings to determine as the employer requested, that the union's allegations regarding estoppel fall within the description of bad faith, and that they can- not therefore form a basis upon which we can assume juris- diction, nor can we determine as the union requested, whether we can also or alternatively base our j~risdiction upon Ian estoppel. These matters remain to be determined after hearing further evidence. As a result, at this stage it is too early to ,determine whether estoppel can or cannot form part of a case of non-renewal of an appointment We do not propose at this stage of the proceedings to make any restrictions regarding evidence; that calli be dealt with in the course of the hearing on the merits As such, the preliminary objections with respect to the first grievance are dismissed Turning now to the issue of the timeliness of the second grievance, the Ellis and Thomson cases, supra, interpret the words "within twenty (20) days of first becoming aware of the \ _ _ ____h__ .._no _U~" .. ~... ~ . ..., .' .....- .,..~.....,...'--=-......,.--.....:-,. .- I 2 I complaint or difference" in Art 27 2 1 as meaning that the time for the filing of a grievance begins to run from the day the grievor subjectively understood that slhe had a complaint or difference under the collective agreement and that as of that time had the right to bring an immediate grievance. Where the grievor \>las advised by a union representative that she had to wait until the dis~osition of her Worker's Com- pensation claim before filing a grievance, she was found not to have had the requisite subjective awareness, and time did not begin to run until she met with an OPSEU staff member who} made 'her aware of her current right to grieve Thomson, supra Time does not begin to run when the employee ought reasonably to have known that slhe had a complaint or difference under the collective agreementi-the test is not an, objective one Ellis, supra. In this case, the grievor alleges, as in both Thomson and Ellis, that he did not know that he h~d the right to grieve regarding overtime pay until he spoke with his union stewards. The proper payment of overtime is not a simple matter Art 3 4 (a to d) indicates that overtime becomes pay~ble based not only on the number of hours worked on any ;given day, but also on a consideration of whether the employee had a regularly scheduled) work week, which, on the evidence, we find is in dispute, and if there is no regularly scheduled work week, whether the employee worked in excess of a certain number of hours per week, which may also be a mat- ter of difference between the parties We are satisfied, in view of the wording of Art 3.4 and having observed the grie- vor and the manner in which he gave his evidence, that it is unlikely that he had the requisite subjective awareness of a right to grieve until he spoke with the stewards We do not agree that in all cases the onus falls to the union to demonstrate why such awareness did not arise earli- er. Where the employer causes substantial doubt to arise as . to the sincerity of the grievor's statements as to when his awareness arose, the onus may shift to the union to demon- 22 strate why the grievor's awareness did not arise earlier. However, substantial doubt has not been raised thus far in these limited proceedings We are also satisfied that the alleged breach of the I. . . if any is found, occurred while thejgrie- overtlme provlslon, vor was an employee, and that notwithstanding the non-renewal ( of his appointment, he retains the right to grieve improper payment, and that the time for filing the grievance began to run when he first came to believe there was an e~ror in pay- ment and to be aware of a right to grieve The grievor's evidence, though frank, was less than clear as to when the meeting with the union stewards at which he was told he had been incorrectly paid for overtime occur- red. He was advised on August 17, 1992 that his appointment would not be renewed and grieved that matter on August 28, 1992, well within 20 days of August 17, 1992 We can con- clude from this that he was aware as of August 17, 1992, once he met with the stewards, or shortly thereafter, that he had 20 days to file a grievance His evidence was that between August 28, 1992 and September 24, 1992, he met with the union ) stewards on more than one occasion As he grieved the non- renewal of his appointment within 10 days of learning of it, on balance of probabilities it is unlikely that he became aware of the dispute regarding overtime and the right to grieve it earlier than August 28, 1992, when he signed the first grievance, and that he then just disregarded that is- sue The greater likelihood is that he learned of it on Au- gust 28, 1992, when he signed the first gri~vance, or later. ~ If he learned of it on Augu~t 28, 1992, which we find fell on the Friday before the September long weekend, )applying the exclusion of Saturdays, Sundays and designated holidays found in Art 27 14, the 20th day after August 28, 1992 would have been Monday, September 28, 1992 The gFievance was filed September 24, 1992, which would have been 18 days after August 28, 1992. ~. 1 )1 .I.... ) The employer's argument that the grievor was required to discuss his complaint with his supervisor within 20 days of becoming aware of his complaint, failing which his grievance must be deemed withdrawn, cannot succeed in the circumstances of this case We cannot conclude that a discussion with one's supervisor is a condition precedent to filing a written grievance, and that the absence of such a discussion consti- tutes a bar to a written grievance and results in it being deemed abandoned under Art 27.13 There are employee- supervisor relationships which are so difficult that such a discussiop would be perfunctory, and would constitute a dis- cussion in name only In other situations, the supervisor may be absent Art 27 8 2 entitles employees who are dismissed to file a grievance within 20 days at the Second Stage of the grie- vance procedure. We conclude from this dispensation of a discussion with one's supervisor that the words "shall dis- cuss . with his supervisor" in Art. 27.2.1 must be read as intended to be procedural and directory, rather than manda- tory The purpose of an Art 27.2 1 discussion is to put the employer on informal notice of a complaint or difference and , provide the parties an opportunity and time within which to resolve it without resorting to a written grievance. The filing of a written grievance serves the notice purpose of the discussion We cannot conceive of a situation in which!a i failure to discuss a complaint with one's supervisor will bar an employee from proceeding on the basis of a written grie- vance within 20 days of the grievor's awareness of the diffe- rence, and suspect that such circumstances would be rare and exceptional It is unnecessary, in view of our findings, to deter- \,/ mine whether by operation of Arts 27 2 1 and 27.2 2 the grievor had 30 days within which to file his grievance \ ( .,. .- ....... . -......-~. OJ, . 24 I I We therefore conclude that the grievance regarding over- time pay was timely and that we have the jurisdiction to hear it on the merits. The employer objected that even if the overtime grie- vance was timely, and even if the grievor had not been paid properly, the board's jurisdiction regarding remedy was limi- ted to the 20 days prior to the day the grievance was filed The general principle enunciated in Jansson, supra, is that barring the existence of circumstance which would make it inequitable for the Ministry to rely upon it, retroactivity will be limited to the peri- od of time within which it was permissible for the grievor to file his grievance In the case of this Collective Agreement, that period is 20 days prior to the day upon which the grievance was actually filed As the grievor had not worked in the 20 days prior to the filing of the grievance, even if the board dete~ined that the grievor had been improperly paid, the employer's argument was essentially that the parties would be put to unnecessary and unjustifiable expense and no useful purpose would be served in examining that issue and coming to a determination, since the boa:r;-d's remedial "reach" was limited to 20 days prior to September ~4, 1992 /' The employer's submission may be correct at the end of the day There is a substantial hiatus between the time the grievor last worked any of the shifts or weeks that might result in an entitlement to payment at time-and-a-half. The reasons for that hiatus and the conclusions to be drawn from ~ it remain a matter of evidence and argument as to whether this and any other circumstances of the case should be cha- racterized as "circumstances which would make it inequitable for the Ministry to rely upon it", thereby justifying a de-\ parture from the general rule. The 20-day rule is a discretionary one; it is not a statutory limitation, nor is it found in the collective agreement The discussion in Jansson, supra, upon which the employer relied, centred around the applicability of that ) , " r '. 2~ general principle in classification cases The board has I I some doubt as to whether the purpose and intent b~hind the rule as it applies to classification cases is applicable to overtime That issue remains to be argued. The discussions in Jansson and Vandenheuvel, supra, and the quote from Mer- supra,) at p . son, 18-19 herein, indicate that the possibility of a limitation on remedial authority or discretion does not ( go to the issue of the jurisdiction of a board of arbitra- tion to hear a matter on the merits, and should as a matter of prudence be determined after hearing the merits. A board's remedial discretion is broad, and remedies often make themselves apparent from the evidence on the merits. As a result, we believe it would be premature in this qase and would constitute~a fettering of our discretion if we were to determine without hearing evidence as to the merits that no remedy was foreseeable, and that we therefore could not and should not hear the overtime grievance on the merits The Decision: ( ) For all the foregoing reasons, the preliminary objec- tions are dismissed, and the grievances will proceed on the merits. Dated this 25 day of May, 1994 S ;f l 4/d.~ E. Seymour Member ,,~~ D. 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