HomeMy WebLinkAbout1993-0845.Dumas&Robertson.97-06-10
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v~ ONrARIO EMPLOYES DE LA COURONNE
CROWN EMPLOYEES DE L'ONTARIO
GRIEVANCE COMMISSION DE
1111 SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388
180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) MSG 1Z8 FACS/MILE/TELECOPIE (416) 326-1396
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GSB # 845/93, 846/93, 2452/94
CUPE # 92-111, 93-08, 93-61 --
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
COPE 1750 (Dumas/Robertson et al)
Grievor
- and -
The Crown in Right of Ontario
(Workers' Compensation Board)
Employer
BEFORE: S.D. Kaufman Vice-Chairperson
FOR THE R. Carnovale
GRIEVOR National Representative
Canadian Union of Public Employees
FOR THE E. Kosmidis
EMPLOYER Counsel
Workers' Compensation Board
HEARING February 15, 1996
April 15, 16,1996
November 19, 20, 21, 1996
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DECISION
There are three gnevances at issue: a province-wide group grievance dated June 16, 1993
(Union, #1); the individual grievance of Lise Dumas dated December 15, 1992, and the
individual gnevance of Frances Robertson, dated February 15, 1993 (Employer, # 1).
The group grievance states.
Contrary to the terms of the Collective Agreement, Vocational Rehabihtation
Caseworkers are not being paid at the appropriate rate given the duration of
service in the posItion and the satisfactory level of performance. Progression from
mImmum of 071 salary grade to position maximum at 072 involves 5 steps over 4
1/2 years. Caseworkers are being taken through up to 7 steps over 6 years, fre-
quently being penalized for above average performance through a "promotion"
tied to delegation of authority that ignores the progression factors of the Collec-
tive Agreement.
It alleges a violation of Schedules "A" and "B" and any relevant sections of the Collective
Agreement orCECBA, and requests "full redress for all affected Caseworkers, including
placing them on the appropriate step and salary grade on Schedule A, and paying the
appropriate retroactive pay" This decision will address the group grievance first and
thereafter the indIvidual grievances.
In addition to substantial documentary evidence, oral evidence was given 'by Chief
Vocational Rehabilitation Officer John Carroll, Manager of Corporate Traming Jackie
Gray-Moores, Artichng Student Ken Bigeant, Manager of Compensation Administration
Suzan Kucerak, former Rehabilitation Counsellor Carroll Page, C.U.P.E.~cal1750
Chief Steward John Madden, Vocational Rehabilitation Caseworker Fran Robertson,
Supervisor of Admitting & Discharge Brian Prowse, and Vocational RehabilitatIon
Caseworker Wayne Nicholls, one of the potentially affected employees, who also
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participated in the hearing. I am grateful to each of the WItnesses for then' candour
regarding their recall of admimstrative actions and deCISIons and the reasons behind them,
WhICh, in some cases, occurred over 10 years ago.
It should be noted that on April 16, 1996, Counsel for the Employer advised that the
employer was withdrawmg the Issue of ability to pay, that all financial implications of the
Impact of the grievance were withdrawn, and that It would not request the Board to deal
WIth those matters. Consequently, the evidence pertaming to that Issue has been
disregarded and does not appear m this decision.
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History:
In the 1975-76 Agreement, Schedule "A" (Union, #4) stated, under the heading "Salary
Scales and ClassIficatIons in the Bargaimng Umt"
The Employer shall pay salanes in accordance with this Schedule "A" and the
Schedule shall apply to all employees in the classifications hsted herein.
During the period of that agreement, the Semor AdmInIstrative Salary Scale contained
Levels 70 to 75 and a "Development Range", "Position Range" and "Merit Range" within
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each level. Each "Range" stated a minimum to maximum annual salary for each
Administrative Level, from lowest In the "Development Range" to hIghest in the "Ment
Range" Below the schedule was the statement:
Note: The Position Range is the rate range for fully qualified and.satIsfactory
employees.
During the period of that agreement, Salary Level 71 inch:lded the job title Rehabilitation
Counsellor, 2 and Level 72 included the title Rehabilitation Counsellor, 1
Mr Beatty considered the above note in Dupuis 5/77 (June 14, 1977). ~e stated that the
Note was "the sole standard against which employees must be assessed for placement in
and promotion to the position range of any particular classification," and "not some
universally promulgated time period" He concluded that Mr Dupuis had met the
standard which warranted that he be paid in the PositIon Range.
On or about August 4, 1977 the parties reached a "Memorandum of Agreement" (Union,
#7) regarding what they described as an "Incremental System" It stated.
'Pursuant to the Memorandum of Settlement and Implementation
dated June 16th, 1977, and concerning the "Incremental System", the
parties agree that, effectIve May 31, 1977, the attached Salary Scales for
the Semor Administrative Salary Scale and the Clerical and AdministratIve
Salary Scale replace the previous pertInent Salary Scales in the Collective
Bargaining Agreement.
The Employer will continue to appraise the performance of
employees and the salary adjustments Indicated by the Incremental System
is subject to such appraisals.
Implementation Procedure
The attached Salary Scales and theIr Incremental Schedules will be
Installed on the follOWIng basis.
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1 The Implementation applIes only to employees who were in
the Bargaimng Umt on May 31, 1977, and are still
employees of the Board.
2. Each such employee will be exammed on the baSIS of the
job and salary grade the employee was in on May 31, 1977
3 The length of time the employee had been on that job prior
- to that date will also be established for use in applying the
increments.
4.a) The first four steps in each salary grade in the Senior
Administrative Salary Scale, (total time period of three
years) and all steps in the Clerical and Administrative
Salary Scale will be effective for ehgible employees on
May 31, 1977, based on the length of time set but in (3)
above and the salary amount shown on the Incremental
Schedule for that grade.
b) If an employee's actual salary on May 31 is less than the
amount ascertained m (a) above, and subject to the
performance appraisal, the salary will be adjusted to May
31, 1977, otherwise no salary adjustment will be made.
Example
Where an employee has been in a job in Salary
Grade 72 for nineteen months, the employee
I would be eligible for $291.00 retroactive to May
31,1977 When the employee works on that Job
another five months, he will be elig~ble for $306.00,
which would be effective at the time he completes
twenty-four months.
5 The fifth step in each salary grade in the Senior
Administrative Salary Scale applies to an employee with 4
1/2 years or more on the current job This salary amount
will be available to each such employee on :his anmversary
or adjustment date subsequent to May 31, 1977, and in any
event no later than September 30, 1977
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6. In. the Implementation Procedure set_out above, an
employee's salary entitlement IS based solely on the Job and
salary grade on May 31 and his length of time in that job as
of May 31, 1977 No attempt will be made to retrace
hIstory or establish relatiVIty
The notes on the salary scales are not effective for thiS
Implementation Procedure.
Subsequent to Implementation
Subsequent to the Implementation Procedure set out above being installed
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and Implemented, the Salary Scales wIth their notes will be applied' on an ongomg
basis.
An Employee Above the Maximum of the Salary Scale
An employee who, as a result of the attached Salary Scale, is above the
new maXIma set out will, until promoted to a hIgher Salary Grade, receive the full
general increase negotiated m the future for hIS present job and Salary Grade.
This does not apply to the existing Red Circle Employees or the Red Circle
practice.
The parties agreed to the wordmg of Schedule "All and the Semor Admini~trative Salary
Scale in the October 1, 1976 to September 30, 1977 Agreement (Union, # 8). The
wording-under the heading "Schedule 'A' " mcluded.
The employer shall pay salaries in accordance with this Schedule and this
Schedule shall apply to all employees in the classifications listed herein.
The salary scales m this Schedule are established in accordance with the
Memorandum of Settlement and ImplementatIOn signed by the Parties on June 16,
1977, and as reVIsed by the Memorandum of Agreement dated Au~ust 18th, 1977
At this point, by the agreement of the parties, the Senior Administrative Salary Scale
(SASS) changed substantially The "salary levels" were Identified as "Salary Grades"
Former Levels 71 and 72 were identified as New Salary Grades 071 and 072. Grade 071
again included the Job title Rehabilitation Counsellor 2, and Grade 072 included the title
Rehabilitation Cou'nsellor 1 More significantly, the three "ranges" in the previous Salary
Scale were replaced by six levels of weekly pay rates wIthm each Salary Grade. The
levels were identified as "minimum", "6 months", "further 6 months", "further 1 year",
"further 1 year", and "further **18 months" The follOWIng notes appeared beneath the
Oct. 1/76 - Sept. 30/77 SASS (Union, #8):
1 The anniversary date is based on the date the employee commenced on the
current Job. ThIS may be eIther the date of hire or the date of a subsequent
transfer
2. The time penods set out at the top of the columns are reflections of the
anmversary date set out in (1).
3 An employee who is promoted WIll have hIS salary adjusted to the next
step he would have achieved had he not been promoted, and his future
salary progression WIll thereafter be governed by the time Interval for the
next higher amount In his new salary grade.
ThiS is subject to the employee being paId a salary rate no less than the
mInImUm rate for the new salary grade.
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** An employee promoted from thIS step will receive a 5% salary adjustment
If the promotion is only 1 Salary Grade. If the promotion 15 more than
one Salary Grade, the employee will be paid one Salary Grade higher in
the 18 month step.
On September 21, 1977, in a memo to bargaining unit employees titled "Salary
Progression Within the Salary Range" (Employer, #11 )the Executive Director of the
Human Resources DiVIsion Mr J G Betts wrote:
On August 10, 1977, I advised you that the Board was commencing a
salary progression systemJo provide advancement through the salary r~nge, based
on the length of time you have been in your current salary grade. This progres-
sion system applies to those employees not already at the maximum of the salary
range.
The salary progression system has been agreed upon by the Union and
is effective May 31st, 1977
From the 1976-77 agreement forward, the parties maintained a similarly structured SASS
with 6 levels of weekly pay rates within each of Grades 071 and 072. It was not in
substantial dispute that at this pomt and up to January 1, 1990, the parties adopt~ a time-
driven standard fqr movement along the salary grid, and that generally, Rehabihtatton
Counsellors 2 and 1 received the pay rates stipulated in the 071 and 072 Salary Grades
after having worked in that pOSItion for the periods of time stipulated 10 the SASS. At
some point not established in the evidence, but prior to January 1, 1990, the following
wording, which appears in the 1993 Collective Agreement, under the heading "Schedule
IN ", was added by the parties.
An employee will receive notice of at least one month if, due to performance, the
incremental mcrease is not to be received.
The Section titled "Performance ReVIew" 10 the Pohcy and. Procedure Manual dated May
31, 1978 (Umon, #12) states that it is the Board's policy "that each employee receive a
performance review at least once per year" and.
The performance review is not normally related to a salary adjustment,
as this is governed by the incremental salary schedules.
Under the subtitle "Discretionary Considerations" (p. 2 of 4) the Manual states
As stated above, the performance review IS not normally related to a salary
reVIew At the dIscretion of the reviewer, however, a recommendation
may be made, based on performance, that an employee should.
i) not receive the time-related adjustment set out in the mcremental
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schedule in accordance with the guidehnes set out in Policy
68.01 04, covering such considerations,
ii) receive an accelerated increase based on outstandiQg performance
and in accordance with the guidelines set out m Policy 68.01.02,
covering such considerations,
iii) receive an increase into or within the merit range, based on out-
standing performance and in accordance with the guidelines set out
in Policy 68.01 03, covering such considerations,
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These discretionary considerations are to be accompanied by a Perfor-
mance Review Summary (1524) specifically related to the --.
recommendation.
It is expected, however, that such recommendations would be made as a
result of reviews of ongoing performance which "speaks of itself" rather
than solely on the result of the specific performance review
The evidence did not estabhsh the nature and contents of Pohcy 68.01.02-4 However, it
appears that the above-noted policy, signed by Mr Betts, superceded all previous Policy
statements on the subject of performance review, and reflected the employer's view that
it had and would exerCIse the right to withhold an increment due on completion of a
specified penod of time as a Rehabilitation Counsellor 2 or 1, in accordance with the time
periods in the SASS, "due to performance" and could also provide "an accelerated
increase based on outstanding performance" No evidence was given as to how this
policy was administered. It is suggestive, but not conclusive, that the wording
An employee will receive notice of at least one month if, due to performance, the
incremental increase is not to be received.
may have existed in the collective agreement by May 31, 1978.
The Job Description for Rehabilitation Counsellor 1 (Employer, #2), dated January 19,
1988 mdIcates that the Salary Grade for the position IS 072, and that one of the basic
requirements of the 072 position is that the incumbent have "il mmimum of three years'
experience m related work asa Rehabilitation Counsellor 2, with performance at a
satisfactory level" and "demonstrated superior ability to deal satisfactorily WIth difficult
or complex rehabilitation problems"
John Carroll IS currently the ChIef VocatIOnal Rehabihtation Officer, Client Services
DiviSIon. He adVIsed that the dIfference between VR Counsellor 2 and 1 was that a
Counsellor 1 would have the expectation of more autonomy and latitude and would assist
in training Counsellor 2s. Mr Carroll had been a Director of two Integrated Service
Umts smce 1989 From 1980 to 1986 he was not involved WIth deciSIOns around the
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promotion of Counsellors. However, during that period he designed job descriptions and
kept them current. He also acted in an advisory capacity to managers and directors with
respect to the format of and approach to performance appraisals. He confirmed that prior
to January 1, 1990 RehabilItation Counsellor 2s "automatically" or "semi-automatically"
progressed from Salary Grade 071 to 072 "at 3 years", with the exception of those
Counsellor 2s with p~rformance problems, whose numbers were few
During the three pilot projects which were undertaken prior to January 1, 1990, the
Caseworkers were paid 10 accordance with Schedule A. No Special Allowances or
proviSIOns regarding Delegation of Authority formed part of the pilot project.
Mr -Carroll, recalled as a witness on November 20, 1996; advised that he had reviewed
his personal records. He said that when he commenced his employment in 1975 as a
Rehabilitation Counsellor, he underwent an 8-week training program and following that
worked for 18 months at the Downsview Rehabilitation Centre (DRC). He was not
"progressed through delegation of authority levels", which were only applied to people in
the field and his record did not speak to such delegation of authority He advised that his
Job at DRC was different from that of a Field Counsellor As a RehabilitatIon Counsellor,
he was paid in tl;1e 071 Salary Grade. His wage rates were not different from those paid to
Field Counsellors. He receIved increments without any consideration of delegation of
authority He said that his evidence had not been influenced by the contents of the March
17 and April 17, 1996 issues of "CUPE Local 1750 Update" (Employer, #22 & 23).
By letter dated September 1, 1989, Human Resources Manager Jackie Gray-Moores
adVIsed CUPE Local 1750 President Carol Haffenden (Employer, #4) that
the WCB's Board of Directors has approved the VocatIonal
Rehabilitation Strategy to be implemented effective January 1, 1990.
The positIon of Vocational RehabilitatIon Counsellor and Employment/
Placement Specialist will cease to exist on January 1, 1990. However,
several new bargaining unit positions in salary grades 071/072 & 073 are
be10g introduced as follows.
Caseworker 071/072 246 positions
Social Rehab. Counsellor 071/072 19 pOSItions
Placement Advisor 071/072 28 pOSItIons
A lIst of all employees 10 the positions affected by the Strategy is attached
for your 1OformatIon. The 10cumbents of these positIons will be notIfied
of their status on September 7, 1989
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On December 1, 1989, Human Resources Specialist Irene Rumak sent a memo to Ms.
Gray-Moores (Employer Book, Tab 5) which indicated, among other things, regarding
the above positions.
.Factors to be used in the determination of the progression from one
salary grade to the other must be identified.
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BACKGROUND:
In the past, promotion from a Rehabilitation Counsellor II .to .I level
was automatically determined by three years work experience as a
RehabilItation Counsellor II with performance at a satIsfactory level.
As as result of the Vocational Rehabilitation Strategy, the position of
Vocational Rehabilitation Counsellor has become redundant and in its
place three newly created positions have been classified with dual salary
grades, but with singular position descriptIons.
The Vocational Rehabilitation Strategy Steering Committee...identified
a need for a lower entry level (071) to the jobs, that would be of a reason-
ably short duration, (six to twelve months) with progression to salary
grade (072) based upon satisfactory performance, as opposed to the
"time-driven" past practice of three years.
Technically then, a correctIon must be made to the body of the three jobs
descriptions. The correction must acknowledge the duties and reSponsi-
bilities of the entry level position. Furthermore, performance factors/
measures in the progression decision from 071 to 072, must be identified
and consistently applied throughout the organization.
PROCESS.
The use of delegation of authority criteria was identified a.s a feasible
means of determining when a employee was SUItable for progression. An
acceptable performance level in accordance with work standards, know-
ledge and appropriate application of W C.B. polIcy could be evaluated by
the supervisor, upon the continual review of an employee's work method
and case recommendations.
RECOMMENDATIONS.
.it IS proposed that upon receipt of full delegation of authority, the
employee in salary grade (071) be promoted to the (072) level.
SUMMARY.
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.it is proposed that salary grade (071) be recognized as a developmental
stage for new hires which will involve trammg on the job, skill develop-
ment and the gradual increase in decision making responsibility Based
on satisfactory performance accompanied by regular performance
appraisals, the incumbent will progress through the stages of partial dele-
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gation and be awarded full delegation of authority with prqmotion to the
(072) salary grade level. j
Ms. Rumak did not testify
Mr Carroll advised that in January, 1990 the employer introduced the Vocational
Rehabilitation Strategy, in part to address the recommendations of the Majesky and
Minna Report regarding Vocational Rehabilitation. The Strategy eliminated the positions
of Vocational Rehabilitation Counsellor and Employment Placement Specialist, and
created the positions of Vocational Rehabilitation (VR) Caseworker, Social Rehabiliation
Counsellor, Modified Work Program Specialist, Work-SIte Analyst and Job Opportunity
Consultant (Placement Advisor). The VR Caseworker replaced the former VR
Counsellor, but some counsellor functions went to the other positions.
Mr Carroll advised that under the Delegation of Authority protocol, a new Caseworker is
considered at Level 0 or A dunng a l3-week training period and for the first while on the
Job. The next level of Delegation of Authority is named Levell or B. The subsequent
level is titled Level 2 or C, it is characterized by more autonomy The next level is the
top level, called Level 3 or D A Caseworker is moved to Salary Grade 072 when s/he is
granted the top level of delegation of authority A performance appraisal which
demonstrates that the employee's performance warrants the assignment of Delegation of
Authority Level 3 is required in order for the employee to move from Salary Grade 071 to
072. No financial impact study was done when the decision to adopt this structure and
criteria was taken. The employer expected that Caseworkers would benefit from earlier
delegation of authority, and the employer would benefit from workers becoming more
autonomous earlier, as opposed to client service being provided through management.
Asked how staff were advised as to the standard they had to meet to receIve full
delegation of authonty, Mr Carroll said "it was based on the admiOlstrator's assessment
of theIr competence" Both before and after JanuaryJ, 1990, there were no mimmum
requirements, criteria, or "must haves" which a Counsellor or Caseworker had to or must
meet in order to move from Level 0 to Level 3 When asked how a Caseworker knows
when he qualifies to progress, Mr Carroll advised that it was a deciSIOn of the manager,
in discussion with the employee.
Jackie Gray-Moores is currently Manager of Corporate Training. In 1989 she was the
Manager of Employment TralOing and was involved With the Vocational Rehabihtation
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Strategy She and her staff dealt wIth Human Resources and the umon issues flowing
from the Strategy She advised that the "role" of Caseworker was at the core of the
change. The former "Vocational RehabilitatIOn Counsellor" concentrated on counselling.
The Chief Executive Officer wanted to concentrate on getting the employee back to work,
and to focus on the employer In her letter of September 1, 1989 to Ms. Haffenden, her
notation of "071/072" after Caseworker, Social Rehab. Counsellor and Placement Advisor
referred to the Salary Grade assigned to the new positions. She said that she did not view
071/072 as lithe same as each other" and noted that each grade had a different salary
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range. The Vocational Rehabilitation Counsellor 2 and 1 positions were eliminated. She
and Mr Carroll and others "reworked the description of Caseworker II She could not
remember whether there was a Caseworker 1 and 2.
She explained that reference to "371" was predicated on "3", which previously identified
employees on a 40-hour or "irregular-hour" work week. She said that exgertise or special
skill was not required for movement of a Counsellor from 071 to 072. If the Counsellor
"sat in the job for 3 years, [slbe was] automatically promoted II Whether an employee
was hired internally or externally "off the street II was of no significance; after three years
the Counsellor was moved from 071 to 072. It was simply "time-driven" She agreed
that before December of 1989, a Rehabilitation Counsellor position at Salary Grade 071
was considered an entry level position.
She stated that the Board wanted to "get away from" time-driven movement, "into ~kill
and performance-based promotion II Movement from one salary grade to another
constituted a promotion. Human Resources' intention in implementing the "Delegation of
Authority" criteria for movement from 071 to 072 was to move to a merit,process. She
acknowledged that she had never considered whether moving from 071 to 072 was
"progression" as opposed to II promotion II and that she did not know whether the terms
"progression" and "promotion" were used interchangeably She acknowledged that she
did not know the basis upon which promotion to 072 would be effected, the criteria, if .-
any, that were established for progressIon from 071 to 072, nor how entitlement to
payment on the 072 scale would be determined.
Ken BIgeant was an articling student with the Board's Legal Services Dept. He reviewed
a random sample of 84 of 313 Human Resources files on February 15, 1996, as to whe-
ther managers had directed theIr minds to whether there was a promotion. He advised
that 67 (79%) of the 84 files con tamed performance appraisals associated with the move-
r ment from 071 to 072 and 17 (21 %) of them had memos saying the director had met cer-
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tam performance reqUIrements and should be moved. In cross-examination, he said that
the words "delegation of authonty" and "promotion" were not used in conjunction 10 all
84 files but that all the files indicated that the person was being given the Level 3 Delega-
tion of Authority and should be given 072. He had not noted whether the employees
whose files were reviewed came from within or outside the bargaimng unit.
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Suzan Kucerak, Manager of Compensation Administration, advised that she had been in
the compensation field since January of 1991 From 1976 to about 1982 she had been a
Vocational Rehabilitation Counsellor, ultimately reaching a supervisory level. She
remained in the Vocational Rehabihtation area, working in the Vocational 'Rehabilitation
Division of the French Language Ad Hoc Working Committee in 1984 and 1985, and as
Project and Procedures Co-ordmator in the Vocational Counselling Branch in 1985 and
1986. She became Acting Administrator of the Vocational Counselling Branch in 1986
and 1987, managing 3 Team Co-ordinators and 21 Counsellors in the Mississauga,
Peterborough/Cobourg, Thunder Bay and Toronto areas. From 1987 to 1990 she was the
Manager of the Toronto West Integrated Service Unit, during which time she implemen-
ted and piloted the Vocational RehabihtatIon Strategy For 7 months in 1990 and 1991
she was seconded as Acting Manager, Human Resources. She was Semor Staff Compen-
sation SpecIahst from 1991 to 1994, and Coordinator, Salary Compensation Policy, from
1994 to 1995
Ms. Kucerak said that she commenced her employment with the Board as a VocatIonal
Rehabilitation Counsellor 2 and became a Counsellor 1 three years after her start date. In
1982 the Board started to hire temporary employees to help with volume. In 1987-88 a
rule, that if the temporary employee became a permanent one, their probation date
became their anniversary date, and they had to work 3 years from their probation date to
move to Salary Grade 072, was rescinded. After 1988, but prior to January 1, 1990, as
long as the performance of a temporary employee was satisfactory, If s/he was 10 his/her
position in excess of 3 years, s/he was paid on -the 072 Salary Grade.
Ms. Kucerak referred to a senes of pages in the WeB Human Resources Division
AdmmIstration Procedures Manual on the subject of "PromotIonal Reclassifications",
dated August 12, 1982 (Employer, #20). Page 1 states that a "promotIonal
reclaSSIficatIon II
.is defined as a change in an employee's job classification in which the new
salary grade IS higher than the old
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.entails a change in the employee's job number and job title. Salary grade
changes and salary increases. The employee's position number (responsibility
code) mayor may not change.
Ms. Kucerak advised that the following passage at page 6 under the same subject,
Rehabilitation Counsellors 2 who ~re promoted on their increment date to
Rehabilitation Counsellors 1 after 3 years receive both their regular incremental
adjustment and their promotional adjustment
says that Rehabihtation Counsellor 2's who are promoted to Rehabilitation Counsellor 1
on their 3rd-year anniversary receive both their "incremental and promotional adjust-
ment" In cross-examination, with respect to p. 6 of Employer #20, and a question as to
whether an employee is hired from internally or externally is promoted on the same basis,
she said that if the employee is hired to a permanent Rehabilitation Caseworker position,
promotion occurs after 3 years.
In cross-examination, Ms. Kucerak agreed that management's policy regarding applicants
in competitions for 071/072 positions who apply from bargaining unit positIons is that
they must be hired in the 071 Salary Grade, notwithstanding some experience in the posi-
tion. She said that management considers their past experience in deciding whether to
hire them and does not place a successful bargaining unit (internal) applicant in the 072
Salary Grade. The experience of a bargaining unit applicant is not considered in determi-
ning the Salary Grade on entry Under "the old method", prior to 1990, non-bargaining
unit employees' work experience could be considered in determining the Salary Grade on
entry, and they were not required to commence in the 071 Salary Grade. After 1990, she
advised, if a vacancy was posted for a Caseworker position, bargaining umt employees,
non-bargaining unit WCB employees, as well as people external to the WCB could
apply, and ability and experience, but not necessarily as a Caseworker, were necessary
Ms. Kucerak agreed that the practIce of movmg Vocational Rehabilitation Counsellors
from the 071 to the 072 Salary Range after they had completed 3 years in the Counsellor
2 position changed m 1990, and promotion was thereafter based on merit and ability She
said that the effect of "early promotion" on salaries was that some benefited financially
and some did not, dependmg on where they were in the salary gnd.
In cross-exammatIon, Ms. Kucerak mitIally said that the "3-year rule" was not affected by
levels of delegatIon of authonty pnor to 1990. She agreed that pnor to 1990, the longest
an employee would require to receive the maximum wage rate, havmg started at either
Minimum, under either Salary Grade, was 4 1/2 years. She later said that an employee
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could move from 071 to 072 as a result of delegation of authority under both "the old"
and "the new method"
In cross-examination, Ms. Kucerak advised that if an employee leaves a progressional job
having been paid in the 072 Salary Grade, it is posted at Salary Grade 071. A successful
____applicant without any previous experience would enter on the 071 Salary Grade. Others
have left the position from the 072 Salary Grade and are re-hired in the same, Salary
Grade. That is a management decIsion.
When asked in chief how the promotional rules and the salary increments have been
applied since 1990, she said.
- the date of hire is the anmversary date;
- the commencing salary will not always be at the mimmum of the 071
scale; outside experience is credited,
- if an employee is "promoted" to 072 from Step 2 of the 071 Salary Grade,
s/he would be paid at the level of Step 3, on the 071 Salary Grade,
WhICh would fall between Steps 1 and 2 on the 072 Salary Grade,
and his/her anniversary date would become the date of promotion,
- after 1990, if an employee is receiving a salary at the maximum of the 071
Salary Grade (Step 5)but is not "ready for promotion" despite
having been III the position for 3 years, s/he will remain at that
salary level,
- both before and after 1990, if an employee is receiving a salary at the
maximum of the 071 Salary Grade (Step 5) and IS promoted to 072,
slhe receives a 5% increase in salary, as a result of the note in
Schedule "A" of the Senior Administrative Salary Scale which
provides.
** An employee promoted from this step will receIve a 5% salary
adjustment if the promotion is only 1 Salary Grade.
Ms. Kucerak said in cross-exammation that it was possible for a Caseworker to be
removed of delegation of authonty; she said they would be moved to 071 Grade. She
adVIsed that she assumed, but did not know whether, if a Caseworker's delegation of
authority was lowered from Level 3 (full) to Level 2, slhe would be paid at a lower rate.
Ms. Kucerak advised that a "Personal Action:Form" or memo signed by the Program
\
Head or the Head of the Branch IS the documentation required for eIther a "promotion" or
an "mcrease" and to move someone from Salary Grade 071 to 072.
In chief, Ms. Kucerak adVIsed that she had reviewed the matenal In preparation of a chart
(Employer, #16A) indicatmg the numbers and proportion of those Caseworkers, Social
Rehabilitation Counsellors and Placement Advisors affected by the "delegation of autho-
rity" method. In the course of the hearing Employer, #16A was replaced by #16B. In
- - ~ - - - -- ----- -'--~-
J
~ 14
cross-eXamInation, she advised that she did not create eIther #16A or B, and agreed that
she took responsibility for them. From the review undertaken, the employer concluded
that 97 or 29 75% of 326 employees benefited under the delegation of authority criteria
for "promotion", and 121 or 3712% did not benefit, i.e. were receiving below the salary
level or received less salary during the period reviewed than they would have received
under the pre-1990 method of movement from Salary Grade 071 to 072, 56 or 17 18%
were "not affected" by the subject of these grievances "due to performance issues", and
were promoted from Salary Grade 071 to 072 three years and three months after their date
of hire, and 52 or 15.95% were characterized as "cost neutral" She advised that some
employees were promoted from 071 to 072 earlier than at the end of three years and that
"they would be impacted by this grievance" She agreed that Caseworker, Social
Rehabilitation Counsellor and Placement Advisor positions were "progression jobs" In
re-examination, she said that she had no knowledge of any of the 56 employees who were
"not affected" having grieved their promotions.
In cross-examination, Ms. Kucerak said t}{at the note 10 Schedule "A" at the
commencement of the various Salary Scales in the collective agreement (p. 75)
An employee will receive notice of at least one month if, due to performance, the
incremental increase is not to be received.
did not apply under the new method, "because there is no set time when promotion is to
occur under the new method" She agreed that under "the old method" the 56 employees
who were identified in Employer #16B as "not affected by the grievance,j should have
received one month's notice. After 1990, the delegation of authority method of progres-
sion or promotion from Salary Grade 071 to 072 was applied to the Caseworker, Social
Rehabilitation Counsellor and Placement Advisor positions. She agreed that all incumb-
ents of those positions have been treated the same under "the new methodil, "in pnnciple"
In reply evidence on November 20, 1996, Ms. Kucerak clarified that in 1995, owing to a
"local agreement" under the SOCial Contract Act, the Increments payable between June
14, 1993 and June 13, 1994, were restored.
Ms. Kucerak advised that other than the document "re DelegatIon of Authonty", she was
--- not aware of any document which would outlIne to Caseworkers, SOCial RehabilItation
Counsellors and Placement Advisors how the cnteria are applied to determIne movement
from 071 to 072.
~.
~ 15
Lise Dumas.
The employer dechned the Umon's offer to make Ms. Dumas available for cross-
examination. On November 20,1996 Mr Carnovale advised that the Union would not
call Ms. Dumas to give eVidence, and stated that the documentation before the Board
pertaining to Ms. Dumas was sufficent, and that she was covered by her individual
grievance and the policy grievance.
- Ms. Dumas commenced her employment as a Vocational Rehabilitation Counsellor 2 on
May 16, 1988, at the pay rate at the Minimum step in the 071 Salary Grade on the SASS.
Six months later, on November 16, 1988, she received the pay rate for Step 1 A further
six months later, on May 16, 1989 she received the pay rate for Step 2, 071 On March
30, 1990 she was "promoted" to the 072 Salary Range. In accordance with Note 3 below
the SASS, her salary was increased at that time to the Step 3, 071 level, which was the
step she would have progressed to had she not been "promoted" The Step 3, 071 pay rate
was between the Step 1 and 2 pay rates in the 072 Salary Grade. Ms. Dumas was
permitted to "progress" along the 072 Salary Grade six months after her new March 30,
1990 "anniversary date" in accordance with the time intervals along the 072 salary level.
Ms. Kucerak referred to a chart (Employer, #18) regarding Ms. Dumas' pay rate and
lllcrement and "promotion" history She said that Ms. Dumas' case was an example of
someone who did not benefit from "the new method" She said that Ms. Dumas was
hired as a temporary VR Counsellor on May 16, 1988 and on July 22, 1988 became a
Field Rehabihtation Counsellor, working 40 hours a week. Her pay rate was adjusted on
that date to reflect her increased hours and she was paid at the minimum rate on the 071
Salary Grade. She received a general increase on October 1, 1988 and her six-month Step
1,071 increase on November 18, 1988. Her start date as a temporary employee remain-
ed her anniversary date to this point. On December 30,1988 Ms. Dumas' status changed
to that of a probatI(:~nary employee. On May 12, 1989 she -received her six-month Step 2,
071 increase. She received a general increase on October 1, 1989
Ms. Kucerak adVised that on January 1, 1990 under the new VocatIOnal Rehabilitation
Strategy, Ms. Dumas' job changed. She became a Placement Advisor, working 36.25
hours per week, mstead of 40 hours a week. As a result of the decrease m her weekly
hours, her pay rate was decreased, but remamed at the Step 2, 071 level. On March 30,
1990, less than 2 years from May 16, 1988 when she commenced her employment as a
temporary employee, Ms. Dumas was "promoted" to Salary Grade 072. She was then
- -.
-- --.-- --- ---- --. - - -_.. _. - -~.-
"
i: 16
entItled to receive a pay rate increase accordmg to Note 3, Schedule A. equal to "the next
step she would have achieved had he not been promoted", i.e. Step 3, 071 That pay rate
fell between Step 1 and 2 on the 072 Salary Grade. Ms. Kucerak said that the collective
agreement required the employer to pay Ms. Dumas at the Step 3 rate on. the 071 Salary
Grade for six months before she was entitled to the Step 2 rate on the 072 Salary Grade.
Because under "the old_method" Ms. Dumas would not have received her "promotion" on
March 30, 1990, Ms. Kucerak said, Ms. Dumas "began to penefit" The date of her
"promotion" became her new anniversary date, whereas it had formerly been May 16,
.-
1988. *
Ms. Kucerak advised that on May 18, 1990, under "the old method" Ms. Dumas would
have received her I-year Step 3, 071 increment. On September 28,1990, under "the new
method", in relation to her March 30, 1990 "promotion", Ms. Dumas receIved the six-
month Step 2, 072 pay rate. On October 1, 1990 she became entitled to a general
increase. Under "the new method" her increased pay rate was about $13.00 more per
week than it would have been under "the old method" On May 17, 1991, her third
anniversary under "the old method", Ms. Kucerak said that Ms. Dumas would have
received her one-year Step 4, 071 increment and would have been receiving a higher pay
rate than she was receiving under "the new method" at Step 2, 072.
Ms. Kucerak advised that on September 27,1991, under "the new method", Ms. Dumas
was entitled to receive the one-year Step 3, 072 increment. On October 1, 1991, Ms.
...
Dumas received a general increase. Ms. Kucerak advised 'that Ms. Dumas' pay rate was
still higher under "the new method," On October 2,1992, under "the new method", Ms.
Dumas received her one-year Step 4, 072 increment which, Ms. Kucerak noted, was
higher than the salary she would have received at that pomt under "the old: method"
On November 13, 1992, under "the old method", Ms. Dumas was entitled to receive
the 18-month Step 5, 071 increment. She would have been entItled to a "3-year
promotIOn" only on January 1, 1993, three years after she was given a "new Job"
On Apri14, 1994, 18 months after October 2, 1992 when she received her one-year Step
4,072 increment under "the new method", Ms. Dumas received her 18-month Step 5
increment on the 072 Salary Grade. Ms. Kucerak advised that as a result, Ms. Dumas
received less wages under "the new method" than she would have under "the old
method"
In reply evidence, Ms. Kucerak confirmed that after 1987, the time a temporary employee
worked in his/her temporary position was considered in determining entitlement to mcre-
-----,
, 17
ments, and the temporary employee's anniversary date was his/her initial start date as a
temporary employee. Seniority by and large determined whether Vocational Rehabilita-
tion Counsellors received their choice of the new positions, Vocational Re!1abilitation
Caseworker, Placement-Advisor and Social Rehabilitation Caseworker Ms. Kucerak
{
later said that employees were invited to state their preferences as to whIch of the "new
positions" they wanted, and a panel determined into which position each would be placed,
based on skill, abilIty and seniority With respect to Ms. Dumas' history (Employer #18)
Ms. Dumas was not at the maximum Step when her job was changed from Couns~llor to
Placement Adviser on January 1, 1990. The change of job had the same function as a
promotion. As a result, because she was at Step 2 in the 071 Salary Grade as a Counsel-
lor, when she became a Placement Advisor, she was paid at the Step 3 level, 071 Salary
Grade and January 1, 1990 became her new anniversary date. Prior to 1994, an em-
ployee's anniversary date changed with a change of job, regardless of the Salary Grade
s/he was m. Ms. Dumas became entitled to the one-year Step 3 increment on January 1,
1991 The change of job on January 1, 1990 "interrupted the flow in the 071 range" The
increment she was paid on May 18, 1990 (Employer, #18) may have been an error * The
Step 4, 071 increment was due January 1, 1992 and the Step 5, 071 increment was due 18
months later, i.e. July 1, 1993. Under the "three-year rule", Ms. Dumas was entitled to
promotion on January 1, 1993, three years from the anniversary date of January 1, 1990,
and if she had been promoted on January 1, 1993, January 1, 1993 would have become I
her new anniversary date. On January 1, 1993, Ms. Dumas was in theory entitled to be
paid at Step 4, 071 On promotion on January 1, 1993, she would have gone to step 5 of
the 071 Salary Grade, and would have moved to Step 4 in the 072 Salary Grade.
*Subsequent to Ms. Kucerak's reply evidence, Ms. Kosmidis advised that Ms. Kucerak
was mistaken when she saId there were errors in her calculation of the old method re
Dumas in Ex. 18. Recalled again, Ms. Kucerak advised that although Ms. Dumas was
given a new job of Placement Advisor on January 1, 1990, this dId not give her a new
-
anmversary date. Originally it had given her a new anniversary date. A memo from the
) Vice President of Chent Services (Employer, #34) directed a return to her old anniversary
date. As a result, Ms. Dumas' anmversary date reverted to May 16, 1988, and the
increments were calculated from that date. However, Ms. Kucerak advised, the memo
-
precludes Ms. Dumas from being promoted on her third-year anniversary i.e. May 16,
1991 In re-examination Ms. Kucerak advised that she was Acting Manager of Human
Resources on June 29, 1990 when the memo was created. She said that she had had no
-
---.--- --
.~ 18
input into it. She understood that compliance wIth the collective agreement was the
concern underlying It, she said that she had no details.
The memo dated June 29, 1990, titled "Anniversary_ Date Rei~~tatement" (Employer #34)
is addressed to "all Vocational Rehabilitation Caseworkers, Social Rehabilitation
Counsellors and Placement Advisors" It states.
On January 1,1990 the position of Vocational Rehabilitation Counsellor was
made redundant and the incumbent employees were assigned to the position of
Vocational Rehabilitation Caseworker, Social Rehabilitation Counsellor and
Placement Advisor In accordance with the rules of schedule A of the Collective
Agreement each of these employees' annIversary dates was changed to January
1, 1990.
Although this action was proper in view of the provisions of the Collective
Agreement It did adversely impact some of the employees. In the spirit of treating
bargaining unit staff fairly, the Board is prepared to reinstate the anniversary dates
of the affected Vocational Rehabilitation Caseworkers, Social Rehabilitation
Counsellors and Placement Advisors. The principles which we believe should
apply in thIS situation are as follows.
1 - The Employer should be protected from an mappropriate escalation
of an employee's salary which might arise in the absence of the
anniversary date provisions in Schedule "A"
2. Employees should be protected from adverse salary effects by
retainIng their previous anniversary dates where the Employer
initiates a lateral move to another job for which the employee
requires limited additional training of less than one month.
The application of these principles would result in the following:
(a) a new anniversary date will always apply when an Employee
initiates the change of job as a result of eIther a promotional
competition or a request for transfer;
(b) a new anniversary date will not apply in the case of an Employer
initiated lateral move to another job that requires less than one
month's training because of the transfer of present skills. This
would not be true when there is-a need to acquire new or dIfferent
skills taking longer than one month of training or where the change
of job results from work performance considerations,
(c) a new annIversary date will not apply when an Employer initiated
change of job results in a downward reclassification and the
employee is given a two year continuance of regular increases
followed by red circle salary protection.
While we have dIscussed these proposals with the UnIon we have not been able to
reach full agreement on the principles outhned above.
--
I
" 19
In the interest of fairness to those impacted by this action and to avoid any further
delay we are proceedmg to remstate the anniversary dates for all Vocational
Rehabilitation Caseworkers, Social Rehabilitation Counsellors and Placement
Advisors. In each of your cases your anniversary date will revert back to the
date existing prIor to the January 1, 1990 reassignment. We will also process any
increments that were delayed as a result of the initial anniversary date change.
I - E. Kaegi M. Czetyrbok
Sr Vice-President Sr Vice-President
Central Client Services Regional ClIent Services
I - The memo characterizes the assignment of former Rehabilitation Counsellors to the
I positions of Vocational Rehabilitation Caseworker, Social Rehabilitation Counsellor and
I Placement Advisor as an Employer-initiated "lateral move to another job for WhICh the
employee requires limited additional training of less than one month" and "reassignment"
I rather than a "promotion" It directs that such employees should retain their previous
anniversary dates. One of the stated purposes is to protect employees froIll adverse salary
!
effects. The memo is silent with respect to "promotion" Ms. Kucerak initially declined
to state what Ms. Dumas' increment entitlement would have been if she had been entitled
to move from 071 to 072 on May 16, 1991, her third anniversary She referred to the
"Exception" at p. 6 in the "Promotional Reclassifications" section of the Administration
Procedures Manual (Employer, #20), which provides
Rehabilitation Counsellors 2 who are promoted on their increment date
to Rehabilitation Counsellors 1 after 3 years receive both their regular
incremental adjustment and their promotional adjustment.
and to the requirement in the Job Description for Rehabilitation Counsellor 1 for 3 years'
experience as a Rehabilitation Counsellor_2 as the basis of her VIew that in order for Ms.
Dumas to be promoted as a Placement Advisor she was required to have 3 years in that
position. When asked how the job description for a RehabilItation Counsellor applied to
a Placement Advisor, she replIed, "from my perspective, you need to be in the job 3 years
to be promoted"
With -respect to Employer #18, Ms. Kucerak advised in reply that on May 17, 1991, Ms.
Dumas received the one-year Step 4, 071 Salary Grade mcrement, which raised her pay
rate to $773 93 If she had been promoted at that time, she would have receIved the pay
rate at Step 5, 071, WhICh was then $827 75, the same rate as at Step 4, 072 per the SASS
(Employer, #14, p. 2). In re-exammation of her reply evidence, Ms. Kucerak agreed that
her pOSItion was that the pOSItion of Placement AdVIsor IS a new job She saId It dId not
exist before 1990.
-. .- - - ._---~ --- - ~-- --
';
20
,
Ms. Kucerak advised that there are three "ways" in which a bargaining unit employee
receives a "promotional increase"
1 through a posted vacancy;
2. an employee In a progressIOnal job, e.g. an RV Caseworker, meets the
criterIa for promotion from 071 to 072,
3. then position is classified upwardly;
Movement from one Step to another is an "incremental increase", based on the
employee's time in the position, it is not a "promotIonal increase"
In.re-examination of her reply evidence, Ms. Kucerak agreed that vacancy, progression -
and upward reclassification were all treated as promotions. She agreed that over the last
few years, progression positions designated as being in Salary Grade 071-072 were not
posted, nor were reclassified positions. She said that "reclassifications effected through
grievances" are conSIdered promotions. When asked for her authority for that conclusion,
she said that the Manual (Employer #20):says that they get their "incremental adjustment
and promotional adjustment" She agreed that May 16, 1991 is three yearS from May 16,
1988 and that if the union's interpretation of the collective agreement is correct, Ms.
Dumas should have received an incremental increase and a promotional increase on May
16, 1991, as a result of which the amount by which Ms. Dumas "did not benefit", would
be much higher than the amount (-$115.86) calculated m her chart (Employer #18). She
agreed, regarding the figures in the right-hand column of her chart that if the union's
theory was correct
-the pay rate as of 17 May 91 would have been $827 75, reflecting both the one-
year Step 4, 071 increment and a promotion
-the duration figure should be changed from 133 to 137
-the pay rate change due to a general increase as of 1 October 1991 would have
been $836.03
-the pay rate on 12 November 1992 would have changed to $893 00 WIth the
general increase.
\
She agreed that Ms. Dumas' pay rate was frozen at $877.83 due to the effect of the SOCIal
Contract Act, and that she missed the increase by 2 weeks.
Ms. Kucerak SaId that a number of affected employees took other positions subsequently,
and their second promotions are based on the earlier one. If the employer were to correct
the salaries retroactively, payroll would have to conSIder whether an mcrease or a reduc-
tion in salary was warranted, and adjust overtime and travel time, salary differentials if
the employee had been on a speCIal vacation, cashed-out vacation pay, incremental in-
creases,leaves.,of-absence, union dues and SUB benefits paid. She agreed that superan-
-
--
- --
~_._----
'J 21
"
nuatlon contributions would all have to be recalculated. She said that this recalculatIOn
was not included in Employer #16 - 18. Incross-examination, she agreed that she would
have to do those recalculations if the positions were reclassified, and in other circumstan-
./
ces and that such calculations are not unusual and are part of the daily work of her
department, although they require more time of her staff.
Wayne Nicholls:
With respect to salary charts regardmg Wayne Nicholls (Employer #19), a potentially
affected employee who attended and participated in this hearing, Ms. Kucerak advised
that Mr Nicholls had been a non-bargaining-unit employee of the WCB and his salary
was higher than the maximum in the 071 Salary Grade before his July 19, 1991 date of
hire as a VR Caseworker Oil his entry into his bargaining unit position, he was paid at
the maximum in the 071 Salary Grade. On October 1, 1991, he received a general
increase. On July 17, 1992, one year after his date of hire into the bargaining unit, he was
a) promoted to the 072 Salary Grade, and b) received a 5% "promotional increasell in
accordance with the note marked " * * " following the SASS in the collective agreement.
On December 4, 1992, he moved into a management positIon and received a "promotion-
al increase" Under "the old method" he would have remained at the Step 5 maximum
wage rate until 3 years after his July 19, 1991 date of hire. Under "the new method" he
was promoted one year after his date of hire. He benefited by $836. in the period from
July 17, 1992 to December 4, 1992, when he left the bargaining unit for a management
position. On September 2, 1994, Mr Nicholls returned to the bargaining unit. His salary
in the management position was higher than the 072 Salary Grade maximum. He was
paid at the Step 5 maximum in the 072 Salary Grade. Under "the new method", from
September 2, 1994 to March 31, 1996 Mr Nicholls earned $4,687.82 more than he would
have under "the old method", Ms. Kucerak concluded.
In cross-examination, Ms. Kucerak advised that she was not aware of any collective
agreement provisions respecting the salary of a non-bargaming-unit Wen-employee
when s/he enters a pOSItion in the unit. The collectIve agreement sets out' the minimum
and maximum salary range of the pOSItion they enter The employer is unable to pay such
an employee more than the wage rates set out on the Scale, except in circumstances of an
organizational or technological change. She agreed that Mr Nicholls would be unable to
assert rights respecting such changes as a person outside the bargaining unit. As the
collective agreement contains no provision regardmg the entry salary, management
decides, in Its discretion, the salary of a non-bargaining unit employee entering such a
---~
-
-.-.-
\
22
~'\
position. Its practice IS to lower the salary of a non-bargaining unit el1)ployee who is
~
/ earning m excess of the.maXImum of the Salary Grade(s) of the bargaining unit position,
to the maximum of the Salary Grade(s). She agreed that the collectIve agreement
contained no specific wording on this subject, and that there had been no negotiations
between CUPE and management regarding this subject.
In reply evidence, Ms. Kucerak said that under "the old method", when Mr Nicholls re-
entered the bargaining unit on September 2, 1994, he would have been paid at the
maximum of the 071 range. His annIversary date became September 2, 1994 He would
have remained at Step 5, 071 for 3 years, i.e. until September 4, 1997, when he would
become entitled to be promoted. Because he would have been at the maximum of the 071
range when promoted, he would have received a 5% increase on the Step 5, 071 pay rate,
which would put his rate between Steps 4 and 5 of the 072 Salary Grade, and he would
have been eligible for the Step 5, 072 increment eighteen months after his promotion to
072, Le. on March 2, 1999
In cross-examination on her reply evidence, Ms. Kucerak agreed that the figures in her
salary chart for Mr Nicholls (Employer #19) under "New Method" reflect Mr Nicholls'
actual pay rates. She agreed that on July 17, 1992, one year after entering ,the bargaining
unit, he was promoted to 072 through the Delegation of Authority System. When Mr
Nicholls left the bargainIng UnIt in December, 1992, his salary was $877.83, due to his
promotion ($836.03 plus 5%). When he re-entered the bargaining unit in 072 in 1994, the
Branch decided he had full delegation of authority as of the date of his re-entry into the
bargaining uq.it, and he entered at the maximum of the 072 Salary Grade, "with nowhere
to go" She did not know whether the level at which he was placed in 1994 was a unilate-
ral decision of management. When asked whether anything in the collective agreement
authorizes the employer to determine the pay rate of employees entering bargaining unit
positIOns from non-bargaming unit positions, she replied that "the policy on downward
reclassificatIOn or voluntary demotion" was the practice and that nothing in the agreement
precluded It.
Mr Nicholls gave eVIdence on his own behalf. He saId that in 1991 he was a Senior
ClaIms Adjudicator and receiving a salary above the pay rate at Step 5, 071 When he
became a Vocational Renabilitation Caseworker, his pay rate-was dropped to the Step 5,
071 level. When he was offered the Job he was told that his salary would be lowered and
that he could not have a raise, that that depended on DelegatIon of Authority He saId he
"asked about progressIon" and was told if he could demonstrate his ability" he could
-- - - ----------- - -. - ---- -- - - --------- -- - - - ~
23
.,.
"progress" to the 072 Salary Grade qUIckly He did that, and one year later, he regained
the salary he had lost in 1991 In December, 1992 he accepted a non-bargaining-unit
position as a Vocational Rehabiliation Technical Advisor He remained in that position
until October 4, 1993, when the positIon was designated as "redundant" He then became
a Future EconOI!l.Ic Loss (EE.L.).Adjudicator, until September 2, 1994 when he was
successful in a competition for a Vocational Rehabilitation Caseworker position. As a
EE.L. Adjudicator, he was earning above the maximum in the 072 Salary Grade. The
employer agreed that he was qualified for placement in the 072 Grade and he was paid at
)
the Step 5 rate. He has since become a EE.L. Adjudicator again, and at this point the
position is within the bargaining unit. He would not have re-entered the bargammg unit
in September of 1994 if he had been paid in the 071 Salary Grade. lie submitted letters
from Chief Steward John Madden to him, dated February 12, 1996 (Employer, #35) and
from Bruce Homer and Ralph Carnovale to him, dated February 2, 1996 (Employer, #36).
Frances Robertson.
Ms. Robertson's grievance states that on October 27, 1989, she was promoted to Voc.
Rehab. Caseworker at Step 3, 071 and that the employer's practIce was to "promote"
Counsellors when they received theIr increment from Step 3 to Step 4 within Salary
Grade 071
Suzan Kucerak agreed, with respect to a comparative salary chart for Ms. Robertson
(Employer #17), that Ms. Robertson had benefited by $1,231.09 from a promotion from
071 to 072 which occurred earlier than the third anniversary of her date of commence-
ment. In cross-examination, Ms. Kucerak advised that Ms. Robertson was initially paid
at the Step 3, Salary Grade 071 level when she entered the position, because "the rules of
the bargaIning unit were apphed in her case" On Octobe( 1,1990, Ms. Robertson
received a general pay increase. On October 16, 1990, she receIved her one-year Step 4,
071 increment. She received another general mcrease on October 1, 1991 On April 24,
1992, eighteen months after receiving the Step 4,071 rate, she received the Step 5, 071
increment. At this point she had been in the positIon about 2 1/2 years. She was, accor-
-
dmg to Ms. Kucerak, promoted retroactively, effectIve May 28, 1992, due to a grievance
(whIch dId not form part of the evidence). Because Ms. Robertson was receiving the 071
maximum, and the note marked" ** "followmg the SASS applies to those who are at
the maximum and who are promoted, her promotion entItled her to a pay increase of 5%
of the Step 5, 071 Grade rate. The pay rate she receIved WIth the 5% mcrease fell
-. -
_.
-
;
I
24
between the rates at Step 4 and 5 of Salary Grade 072. On November 26, 1993 ,eighteen
months after May 29, 1992, Ms. Robertson received the Step 5, 072 pay rate.
Ms. Kucerak said that under "the old method" Ms. Robertson would have remained at
Step 5,071 until her third anniversary from October 29, 1989, her date of hire, i.e. until
October 27; 1992, instead of having been promoted to the 072 Salary Grade on May 29,
1992. She.later said that under "the old method" Ms. Robertson would have had to wait
a further 18 months from October 27, 1992, when she was promoted and began receiving
a rate which fell between Step 4 and 5 on the 072 Salary Grade, to receive the Step_5, 072
rate. Under "the new methodlt, she received the Step 5, 072 rate 18 months after her May
29, 1992 date of promotion, i.e. November 26, 1993, rather than on April 27, 1994
In reply evidence, Ms. Kucerak produced Ms. Robertson's Personal Action Form
(Employer #33). It indicates that it was processed on July 28, 1994, to be effective May
29, 1992, and that Ms. Robertson's salary grade starting May 29, 1992 would be 072 and
her actual pay rate would be $877.83 (i.e. 5% more than the 071 maximum of $836.03).
Ms. Kucerak advised that ordmarily the Comment sectIon of the Form simply indicates
that full delegation of authority has been granted, or a memo stating that the employee
has received full delegatIon of authority must accompany the Form. The Comment
section of Ms. Robertson's Form was blank and no memo accompanying the Form was
produced. Ms. Kucerak advised that May 29, 1992, the day of Ms. Robertson's promo-
tion, became her new anniversary date, that she received a 5% pay increase, moved to
between Steps 4 and 5 of the 072 range, and eighteen months after May 29, 1992, i.e.
November 26, 1993, she was entitled to the pay rate at Step 5, 072.
On cross-examination of her reply evidence, Ms. Kucerak considered the ~une 29, 1990
Memo titled "Anniversary Date Reinstatement" (Employer #34) and her charts regarding
Ms. Robertson's pay rates (Employer #17B). She agreed that her charts indicated Ms.
Robertson benefited from the application of the new method. She agreed that under the
old method, Ms. Robertson entered her position on October 27, 1989 at the Step 3, 071
pay rate and was paId at Step 4, 071 on October 27, 1990, and at Step 5, 071 on April 24,
1992. She agreed that Ms. Robertson's 3-year annIversary date was October 27, 1992.
She was asked why Ms. Robertson was not entitled to receive both her promotIonal
increase and incremental mcrease. She replied that Ms. Robertson had reached the Step 5
maximum on April 24, 1992, and was not due another increment at that time. The only
adjustment she could have was the 5% adjustment. The promotional reclassifications
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t'
~ 25
"
policy (~mployer # 20, p. 6) only refers to people who start at the minimum pay rate in a
salary grade. It does not apply to people who start in the middle of a salary grade.
The UnIon consented to the Employer cross-examining Ms. Robertson on the basis of her
handwritten grievance (Employer, #1) and documents in the Union's Book of Exhibits
(Union, #14, 15. 18, 19,21,22 and 23). Ms. Robertson agreed that she became a VR
Counsellor iIiDctober, 1989 in Salary Grade 071 Union #15 and Employer #17B
indicate that she was initially paid at Step 3, 071 and that one year later, October, 1990
she "progressed" to the StepA, 071 Employer #17B and Union #19 indic~te that 18 -
months later, on April 24, 1992, she "progressed" to the Step 5 maXImum in Salary
Grade 071 Union #15 dated March 17, 1993 indicates that on May 28, 1992 she was
given "full delegation of authority" and "promoted" to Salary Grade 072, and receIved a
5% mcrease. The increase placed-her between Step 4 and Step 5 on Salary Grade 072.
Ms. Robertson acknowledged having received the 5% increase, which she said was paid
retroactively to May 28, 1992. She expressed the view that her receIpt of the 5% increase
was owing to her grievance.
J
Ms. Robertson did not dIspute the suggestion that her position was that on October 27,
1990, when she "progressed" to Step 4, 071, she should have been "promoted" to Salary
Grade 072, one year after she had entered the positIon at Step 3, 071 She agreed that
management can "promote" an employee earlier than his/her third-year anniversary, but
said that the promotion should not impact on the time it takes the employee to reach the
maximum, which should be 4 1/2 years. She said.
My grievance is based on where I was on the scale. I started partway up the
scale. The only thing it's confirming is the double-jump.
She agreed that she did not take issue with her salary in 1991 In re-examination her
attention was drawn to paragraphs 4 and 5 in the August 4, 1977 Memorandum of Agree-
ment between the parties. Ms. Robertson said that the current mcremental system was
not In the collectIve agreement before the MemOfaridlIm was negotIated. It estabhshed
Steps in the salary grid. In the SASS, the first four Steps covered three years, and the
fifth Step applied to an employee WIth 4 1/2 or more years of employment. At the time
that the Memorandum was created, some employees had more than 4 1/2 years of
employment with the WCB, and the Memorandum says that it should not take longer than
41/2 years to reach the maximum. The Counselling position was described as 071-072.
The Memorandum said that the length of time to reach the maximum of 072 should not
exceed 4.1/2 years.
---
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.' 26
"
In reply evidence, Ms. Kucerak disputed the statement "It was the practice of the
Employer to promote counsellors when the increment from Step 3 of 071 to Step 4 of 071
was granted" m Ms. Robertson's grievance (Employer #1) and said that the Employer's
practice was to promote Rehabilitation Counsellors at their third anniversary The vast
majorIty of them were hIred at the minimum lev~!~f the 071 Salary Grade. At their third
anniversary, the vast majority of Rehabilitation Counsellors were at Step 4 and accor-
dingly received their "promotion" and entered the 072 Salary Grade. The IIpromotion
rules" say that when promoted, you receive theJnqrement of the next Step you would
have progressed to had you not been promoted. Thus, when they reach-Step 4 in 071 on
their third anniversary, they receive the Step 5, 071 increment and are "transposed" to
Step 4 of 072. This is what is meant by "the Double Jump" It applies to the majority of
counsellors, but not to all of them. It generally takes 3 years to get to Step 4
Ms. Kucerak advised that a RehabilItation Counsellor could reach Step 4 in less than 3
years if s/he entered the Counsellor position from another WCB position. She said that
Ms. Page started at Step 3, 071 rather than the minimum, got to Step 4, 071 after one
year, and to Step 5, 071 eighteen months later, i.e. to the 071 maximum in 21/2 years.
However, once there, unless she was promoted she could remain there until her third
anmversary, at whIch po lOt under the "old system" she would be entitled to be promoted
to the 072 Salary Grade.
Ms. Kucerak advised that a "progressional position" is "a developmental position" It
takes time and a body of experience before the incumbent moves on to the next grade.
Before 1990, at the end of three years, a Vocational Rehabilitation Counsellor, and not
the SpecialIst, received the Step 4 increment and a promotional increase, which increases
their pay rate to the next Step in the same Salary Grade. Step 5 in 071 is transposed to
Step 4 In 072. If an employee's commencing pay rate IS above the minImum of the 071
Salary Grade and s/he reaches Step 5, 071 before three years in the pOSItIon, at three
years they receIve a 5% promotIonal increase, which places them between Step 4 and 5 in
\ -
the 072 Salary Grade.
Carroll Page:
-- Carroll Page appeared pursuant to a Summons served upon her by the UnIon. She
presented a computer print-out of her Work History (Employer, #21) as a RehabilitatIon
Counsellor She advised that she had been m the employ of the Board for 26 years,
having started as a secretary She became a Rehabilitation Counsellor on May 4, 1984
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27
She worked at Downsview for about 2 years, then wIthin the Commutation UnIt within
Rehabilitation for 2 years, then for the Integrated Service UnIt. At Downsview, she
interviewed clients who were to be treated there, had a small caseload of discharged
patients, counselled clients and went out to worksites. She agreed that she progressed
__ through the-increments on the 071 scale within two years of having become a Rehabilita-
tion Counsellor Her Work History indicates she received a general increase on October
_.-
1, 1984, an increment on May 3, 1985, general increases on October 1, 1985, April 1,
-- 1986, and October 1, 1986, and was moved to the 072 scale and received a pay increase
on October 31, 1986, about 2 years and 5 monthS from the date she became a Rehab.
Counsellor Ms. Page said that she was never told that she was getting an increment.
She advised that she "experienced different delegations of authority", and knew that to
have occurred because she "did training programs" She thought she had full delegation
of authority as of October 31, 1986. She said that she was simply advised that she had it,
but was unable to recall the process. She said she believed that she began to work in
commutations around August of 1986, but that she did not have full delegation of authori-
,
ty at that tIme. She said that her personnel file did not contain a record of any delegations
of authority
In cross-examination, Ms. Page was shown page 2 of the March 17, 1996 issue of "CUPE
Local 1750 Update" (Employer, #23). She said she had never read it before. She was
then shown a chart which counsel for the employer advised her was her work history,
prepared by Ms. Kucerak (Employer, #24). She said that she did not know whether she
was promoted to the 071 Salary Grade as of May 4, 1984 She agreed that the entry for
October 31, 1986 indicated that she was promoted and received an increment and that her
promotion to 072 occurred two years and five days after her start date as a Rehabilitation
Counsellor She said that she did not examme her personnel file for the reason for her
promotion, but only for evidence of delegation of authority Her file was produced to her
and she was asked whether she could find anything in it that indicated a promotion. She
advised that her Performance Review dated June 7, 1987 identIfied her as a Rehabilitation
Counsellor 1, but did not mdIcate the reason, she said that she was already at 072. She
said that the July 28, 1986 Performance Review (Employer, #25) did not indIcate whether
she was a RehabIlItation Counsellor 1 or 2.
The July 28, 1986 Performance Review (Employer, #25) states that effective August 18,
1986, Ms. Page would be assumIng the duties of a RehabilItation Counsellor m the
CommutatIons and PenSIon Advances Section. The Performance ReVIew Summary dated
- ----
. 28
:.\.
April/87 (Employer, #26) indicates that 8 months after August, 1986, Ms. Page was a
Rehabilitation Counsellor I, at Salary Grade 072, and that she had been in the job 8
months. Ms. Page agreed that the July 28, 1986 Performance Review was done before
her change from 071 to 072 and that she was "due" an increment on November 4, 1986
and that she was also promoted to 072 th~n.
In re-examination, Ms. Page advised that her current Branch Secretary gave her the Work
History (Employer, #21). She said that the Performance Review summary dated April,
- 1987 was signed by James Pompa and Paul Nolis and agreed that it pertained to her
period in Commutations. She agreed that the July 86 Review (Employer, #25) dealt with
her employment at Downsview She said her duties as a Rehabilitation Counsellor in the
two locations were somewhat different.
Brian Prowse, Supervisor of Admitting & Discharge, Health Records, Downsview
Rehabilitation Centre, was called by the Employer in reply evidence. He advised that he
)
started working for the WCB in 1978 as a Rehabilitation. Counsellor From 1980 to 1982
he was a Senior Vocational Rehabilitation Specialist, which was a promotion to a first-
line management position. He was Administrator of Vocational Rehabilitation at the f
Downsview Rehabilitation Centre from 1982 to 1986, and subsequently, Manager of
Head Office of the Integrated Service Unit. In 1986 Carroll Page reported to him. Prior
to 1990, the movement of employees from the 071 to the 072 Salary Grade was "time-
driven" He said that he was unable to explain why Ms. Page " progressed " from 071 to
072 some 2 years and 7 months after first becoming a Rehabilitation Counsellor
Me Prowse said that he could not recall how long he had been Ms. Page's, supervisor but
that he was no longer her supervisor at the time that she was "promoted" to 072. He
acknowledged that he had signed her Performance Review (Employer, #25) and had sent
it to Mr Nolis with the memo. He acknowledged he had told Mr Nolis tl1at something
had to happen. He acknowledged that Mr No lIs' signature and the date September 3,
1986 appears beside it on the second-last page of the Performance Review He agreed -
that Mr Nolis SIgned the performance review before November of 1986, and that the
Branch Secretary made up a form to approve a salary mcrease. The current process is the
same as the old one. The secretary notifies the salary administrator Four people, the
Worker, the Team Coordinator,-lhe Supervisor and the Administrator all look at the form
before It goes out.
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.. 29
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In cross-examination of her reply evidence, Ms. Kucerak agreed that m receiving a pay
rate of $657.56 on October 31, 1986, Ms. Page was at Step 5 of Salary Grade 071 She
said that Ms. Page would receive the maximum in 072 "eIghteen months after the
promotion", i.e. "May 4,1987", which was Ms. Page's third anniversary from her May 4,
_.~- 1984 start date in the position. She then agreed that Ms. Page would receive the 072
maximum on November 4, 1988, which was 41/2 years after her May 4,1984 start date.
When asked how-iithe mandatory 3 years" related to Ms. Page, Ms. Kucerak said that
there had been an error When asked how the 3-year rule applied to an employee who - I
entered at Step 3 of Salary Grade 071, she said that an-employee could enter the position
at the maximum of the 071 Salary Grade and remain there for 3 years. That was the I
practice. She agreed that such a person, if promoted, would receive the 5% increase,
which would put him or her between Step 4 and Step 5 of the 072 Salary Grade. I
When it was put to her that the collective agreement says that such a person moves in 18
months, she replied that she did not believe the agreement said that. She said that a
person could enter at Step 3 and be at Step 5 eighteen months later She said that that
employee should remain at Step 5 for another eighteen months "if the '3-year-rule' applies l
and then move up" She said she was not aware of it having been possible to promote an
employee to the 072 Salary Grade based on merit before 1990. Ms. Kucerak agreed that
under "the old system" an internal applicant entering the position at the maXImum of
Salary Grade 071 could remain at that pay rate for 3 years, and that an external applicant
could not be promoted before the expiry of 3 years in the position.
Ms. Kucerak was asked when, after February, 1990, an external applicant who enters the
position at the minimum level of Salary Grade 071, would be designated as 072. She
replied that that would depend on when the person received full delegation of authority,
which could take from 5 to 6 months to 4 to 5 years. If a Caseworker begins at the
minimum of Salary Grade 071, and receives full delegation of authority after 6 months,
s/he receives the next Step increl!!ent s/he would have receIved had s/he not been
appomted. At 6 months, that Caseworker receives his/her Step 1 grade 071 increment,
and the followmg day receives the next Step s/he would have been entitled to had he not
been promoted, Le. Step 2 grade 071 That places him/her between the mmimum and
Step 1 of the 072 scale. The annIversary date becomes the date of promotion. Six
months after the date of promotion, s/he will receive the next mcrement on the 072 scale,
I.e. Step 1 Under the new scheme, the employee takes 4 1/2 years from the date of
--
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30
,
"promotion" to achIeve the maximum of the 072 salary scale, as the annIversary date is no
longer the date of hire.
In reply evidence, Ms. Kucerak reviewed and explained the "Salary History" she had
prepared concerning Carroll Page (Employer, ,!l24). Ms. Page started her employment
- with the Board as a RehabilitatIOn Service Controller on November 30, 1978. She was
promoted to the position of Rehabilitation Counsellor IT on May 4, 1984 and was paid the
Step 3, 071 rate. Her anniversary date was changed to May 4, 1984, due to the promo-
-
tion. She received a general increase on October 1, 1984 On May 3, 1985, the first
anniversary of her promotion to Rehabilitation Counsellor, she received the Step 4, 071
increment. She received general increases on October 1, 1985 and April 1 and October 1,
1986. She was due to receive her Step 5, 071 increase on November 4, 1986, 18 months
after her Step 4 increment. The practice is to adjust the increase to the nearest Friday,
WhICh was October 31, 1986. Her pay rate was increased to $657.56, the ~tep 5, 071
maximum at the time. At the same time, she was "put in" Step 4 of the 072 Salary Grade.
Ms. Kucerak said "it was an error to have promoted her to 072" Had she been promoted,
she would have received both her incremental increase (to Step 5, 071) as well as the 5%
---
increase. Ms. Kucerak said that she did not know why Ms. Page did not receive a 5%
increase and that she supposed that she received only the Step 5 increment because she
had not been in the position for 3 years.
John Madden, the Union Advisor at the hearing, also gave evidence on behalf of the
Union. He said he started his employment with the WeB on April 1, 1986 and
completed his probation on October 1, 1986. On May 29, 1986 a 'Ifaining Evaluation of
Mr Madden "based on nine weeks of initial training" was prepared (Employer, #28),
whIch Mr Madden said he received at the end of the training program.
On September 26, 1986, R.H.Witzke, Team Coordinator, North Bay Area Office, wrote a
memo (Employer #27) to L. Lecky, Administrator, Central Team 4 indicating ~
Madden had "successfully completed his probationary (temporary status) as of October 1,
1986" and recommending that he "be entrusted 'Full Delegation of Authority' within the
guidmg principles and IlmitatIons in the Y:R.D manual, document 44-14-01 to 44-14-
02" Mr Madden said that he was given full delegatIOn of authorIty on October 6, 1986.
~ )
He saId that at that tIme delegation of authority "had less to do with money and more to
do wIth tIme", and that as of October 6, 1996, he was authorIzed to approve traIning prog-
rams of up to 6 months for clients. In cross-examination, he said that when he received
-,
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.. 31
"full delegation of authonty", he had the same authority as people who had been there for
20 years. If the training program was approved by the Board and was of 6 months or less
duration, there were no limits regarding the cost. He said he had the authonty to place a
client on any form of Workers' Compensation pension on such a course, a~d the client
would automatically receive tuition, books, transportation, room and board, exploratory
financing and any other reasonable costs. He said that after October 1, 1986 he was a
---- -
Rehabilitation Counsellor and was paid at Step 1, 071. Prior to working for the WCB,
Mr Madden had tutored people at Lakehead and Hamilton Psychiatric Hospital with a -
Professor of Psychiatry from McMaster University, had been a Mental Health Counsellor
for 6 to 8 years, had been Director of Mental Health at Atikokan General Hospital, and
had been Regional Director of the March of Dimes for North-Eastern Ontario for 2 years.
He said that those jobs dId not impact on the speed with which he received "full delega-
tion of authority" He later said that it might have helped, and that he supposed it might
have caused the employer to hire him.
Mr Madden said that he received a Step 1 six-month increment in October, 1986, and
another increment to Step 2, 071 six months later (April, 1987). After another 12 months
he received another increment (Step 3, April, 1988). Three years after his April, 1986
date of hire, his paycheque increased substantially In 1990 he became Chief Steward
and investigated how employees were moved through the Salary Scale. He said that he
went through the negotiating history and understood that when an employee reaches Step
4 in the 071 Salary Grade, s/he receives a "Double Jump" As a result, when he reviewed
Mr Homer's letter of February 13, 1990 to Mr Mucci (Employer, Ex. 6), ne wrote to Mr
Homer and and advised him that the UnIon did not agree with his proposals. Mr
Madden said that a "Double Jump" refers to the receipt of the Step 5 increment achieved
by progressing from the minimum pay rate to Step 4 in the 071 Salary Grade in 3 years,
and the movement at the same time to Step 4 in the 072 Salary Grade.
Mr Madden saId that despIt~ the implementatIon of the "Delegation of AuthOrIty"
method m January, 1990, 18 months after April, 1989, I.e. in October, 1990, he received
the increment at the maximum (Step 5) of the 372 Salary Grade, which parallels the 072
Grade. A Memorandum from Gaston Godm, Manager Area Offices to Human
Resources SpeCIalist SylVIa RIcard dated October 4, 1989 (Employer, #29) mdicates that
Mr Madden "progressed" to Step 4 of 371 m April, 1989, but "should have progressed"
to Step 4,372 at that time. His memo requested Sylvia RIcard to pay Mr Madden the
weekly dIfference of $49.54 retroactive to April, 1989 This request was implemented
--- -
. 32
'i
and he was paid at the Step 5, 372 Grade retroactively to 7 April, 1989 The Employee
Information Change form (Employer, #30) cited October 10, 1990 as his next increment
date, which was 18 months after 7 April 1989
Mr Madden saId that he did not know anyone who did not have the "Double Jump" that
he did, before 1990; it was standard. Prior to 1990, one went automatically from Step 5
of 071 to Step 4 of 072. ~._-
During Mr Madden's evidence, the parties agreed that the practice of moving employees
from Salary Grade 071 to 072 at the end of 3 years was a consequence of the Dupuis
decision, and its source was the Administration Procedures Manual (Employer #20, p. 6)
and the statement.
r
Rehabilitation Counsellors 2 who are promoted on theIr increment date to
RehabilitatIon Counsellors 1 after 3 years receive both theIr regular incremental
adjustment and their promotional adjustment.
Arguments.
For the Employer:
In order to manage its business, the employer has an inherent right to promote. The
collective agreement does not state that an employee will be promoted at Step 4 or at any
time. It sets out the rules for increments and promotions. Those have been followed.
The employer can retain the right to promote at its discretion as long as the collective
agreement IS not VIOlated. It has not been violated.
Before 1990, the WCB used time-driven criteria in determining when to promote, i.e. a 3-
year penod in the positIOn. The eVidence is uncontradicted.
1 The evidence of John Carroll, the Board's Chief Rehabilitation Officer
- -
His resume shows he has 11 years m Vocational Rehabilitation.
2. Suzan Kucerak's evidence of her own personal expenence as a counsellor
and then as a manager who promoted people at the three-year-mark. She has spent 14
years in VocatIonal RehabilItation at the WCB. Her evidence was based on the promo-
tional reclassIficatIon document (Employer, #20). She gave examples of two employees
-- who entered the positIon at the maximum pay rate and remamed there for three years
before they were promoted.
3 Bnan Prowse's evidence confirmed that promotIon occurred at three years
and anything else was a mIstake.
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33
4 The two separate job descriptions of Rehabilitation Counsellor 1 and 2
(Employer #2) had separate salary grades. The Rehabilitation Counsellor 1 position had a
prereqUIsite of 3 years' experience as a Rehabilitation COunsellor 2.
5 The memo of Irene Rumak dated December 1, 1989 (Employer #5) speaks
to the existence of the three-year rule and why it was necessary to change it.
6. The letter dated February 13, 1990 (Employer #6) indicates that
"promotion from one level to the next was based solely on length of satisfactory work
experience in the position" --
- 7 The letter dated October 21, 1993 (Employer #9) clearly sets Old the
employer's position.
8. Mr Madden's Human Resources file (Employer #29 and #30) corrects the
situation m which he was not promoted at the 3-year point, contrary to board policy Tab
29 indicates he should he should have receIved his promotion on April 10, 1989, because
he started on April 10, 1986. He remained at 071 after April 10, 1989 instead of being
moved to 072. The memo, dated October 4, 1989, was made 6 months after his 3-year
anniversary date, and corrects an error in Salary Grade and promotes him. A promotion
is a change m Salary Grade from 071 to 072.
Despite the rhetoric and the March 17, 1996 CUPE Local 1750 Update (Employer #23),
only one person came forward to dIsprove the 3-year rule. There is no eVIdence to refute
the eXIstence of the 3-year practice. There is evidence to support it.
The Employer was unable to find anyone to give evidence as to how the practice came
about. The Employer submits that the Dupuis decision (Employer, #12) caused the 3-
'"
year mark to be used. Mr Dupuis was promoted from 071 to 072 when he had been on
the job for 3 years, but received no more money There were only 3 salary scales at the
tIme: Developmental, POSItion Range, and Ment Range. Mr DUpUIS was still being paId
at the Developmental Range after 3 years. The case does not say a worker must be
promoted ~t 3 years. It indicates that the standard for "PositIon Range" in the Note of
Schedule A is "fully qualified and satisfactory", and speaks to Mr Dupuis'exceptional
performance. It says that an employee must be paId in Position Range when "fully
qualified and satIsfactory" ThIS has become the 3-year rule.
The Employer agrees that It had the nght to promote before the expiry of 3 years.
Nothing in the collective agreement says you must be promoted at 3 years. It is simply a
practIce that evolved, WhICh changed in 1990 because Bill 162 placed greater emphasis
on Vocational Rehabilitation.
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" 34
~
Bill 162 brought the WCB into the 20th century Its purpose was to try to make people
go back to work and supported the importance of the dIgnIty of work. It tied rehabilita- I
--tion to benefits, and tried to compensate people as individuals and as a whole; S. 10(1)
permits a deceased worker's spouse to apply for a Vocational Rehabilitation Assessment.
s. 45-iiiiroduced the non-economic loss (NEL) award, which provided compensation for
pain and suffering:-- S. 45(a) introquced compensation for future earnings loss. S.54(a)
speaks to the Board having to do certain things within specified and short time periods. It
obliges employers, for the first time, to re-employ injured workers. The WCB_ was
reqUIred to change its approach to vocational rehabilitation and needed Vocational
Rehabilitation Caseworkers to become more independent and autonomous, able to take
on more responsibility more qUIckly, to comply with the legislative requirements. This
was done by changing the criteria for promotion from time-driven criteria to one which
recognized skills and abilities to one which promoted employees when they were ready to
be promoted.
Ken Bigeant did a random sampling of files of Caseworkers promoted since 1990. He
reviewed 84 files. 67 had Performance Appraisals and 17 had memos supporting a
promotion. Fran Robertson's Performance Appraisals (Union, #14) confirm her
performance and promotion.
The collective agreement distinguishes between promotion and increment. Schedule A
deals with them both. blcrements are designed to compensate an employee who
progresses in the same salary grade over a period of time. The WCB Report to staff dated
September 21, 1977 (Employer, #11) indicates that salary progression is "based on the
length of time you have been in your current salary grade" The Memorandum of Agree-
ment dated August 4, 1977 (UnIon, #7) indIcates that the "length of time the employee
had been on that job prior to that date will also be established for use in applying the
increments" and that "an employee's salary entitlement IS based solely on the Job and
salary grade on May 31 and his length of time in that job as of May 31, 1977" That
wording appears throughout the memo. It indicates that reference must be made to the
length of time the person has been m the job to determine elIgibility for an increment.
On the other hand, promotions are used to recognIze movements from one grade level on
the Salary Scale to another
The Employer submits that movement from Salary Grade 071 to 072 is a promotion.
They are two separate jobs, two separate job descnptions, and two separate salary scales.
"-
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.. 35
~
In fact, the salary scales contemplate what happens when you reach the maXImum of the
grade. The Salary Scales do not mdicate that an employee IS promoted when s/he reaches
the maximum of the grade. In fact, you stay there if you are not promoted. Schedule "A"
ClassificatIons m the Senior AdminIstrative Salary Scale", at pp. 77-78 of the January 1 -
- --- ----.--
December 31,1993 collective agreement list two separate job titles. Nowhere under
Schedule A is there an exception for progressional jobs. The normal rules, i.e. those set
out at para. 3 and the note marked " * * " under the Senior Administrative Salary Scale,
apply
Nothing in the collective agreement deals with these Jobs differently regarding
promotions. Management's right to manage is not in the collective agreement because it
was covered by CECBA at the time of the grievances. The employer relies on s. 18 of
CECBA, R.S.O 1990, c. C.50.
Evidence was heard regarding the financial effects of the new method on various
employees. Mr Madden's evidence was that he recei~ed full delegation of authority at 6
months yet remained in .071 for 3 years. He would be ahead financially if he had been
promoted earlier Ms. Robertson argued she should have been promoted earlier; her
position supports the employer's actions. Ms. Dumas was held back. Mr Nicholls took
the positions on the basis of his understanding of the post-1990 promotional criteria, as
did others. The SocIal Contract Act froze increments. Promotion was the only means of
receiving a salary increase.
There was evidence regarding Joint Job Evaluation and how the problem would be
corrected.
The issues m these gnevances were issues for collective bargaining (Employer, #10) and
the parties should have addressed- it there. There is no evidence that the collective
agreement has been VIolated. Accordingly, the grievance should be dismissed.
For the Union.
The employer wants the Board to believe that Bill 162 was the cause of Its strategy
There was no evidence lead regarding the intention behind Bill 162. None of the
employer's WItnesses identified It as the dnvmg force. Bill 162 IS irrelevant. The
collective agreement is still m place.
--
,,~ 36
R'
This Board does not have junsdiction to rule on the effect of ss. 7 and 18 of CECBA. The
jurisdiction to do so is vested in the Public Service Tribunal and the Labour Relations
Board. This Board does not have the jurisdiction to interpret ss. 7 and 18 of CECBA, or
any question as to which CECBA applies. S. 40 was not repealed on February 14, 1994
.- ~ ----
_J'he right to interpret is vested in the Ontario Labour Relations Board. The issue of
whether 8.,-7 or s. 18 applies has been decided in Tl9/81, a decision of Mr Shime. It was
an application under s. 42 of the Act. There is a subsequent decision of Mr Weatherill.
The employer creates the job. The parties can collectively bargain ~age rates, etc.
The Board_ cannot amend, add to, or delete from the collective agreement.
The employer can do what it wants with non.bargaining unit employees. Once Mr
Nicholls was appointed to a bargaining unit position he was under the jurisdiction of the
collective agreement between WCB and CUPE Local 1750. Local 1750 is the sole
bargammg agent for all bargaming unit employees. The employer cannot ~trike separate
deals with individual employees. It must negotiate with Local 1750 as to the wage rate
on the scale at WhICh such employees will be paid. That has been the practice.
Counselfor the employer said "all normal promotional rules apply" and defined those as
Schedule A, Note 3 and the direction at "**" She said that a move from 071 and 072 is
a promotion. If the Board concludes that that is correct, a serious problem arises. Art. 5
deals with "Promotion and Staff Transfers" Art. 5 promotions are predicated upon a
vacancy The move from 071 to 072 is neither a vacancy, a new position or a temporary
vacancy As a result, the move from 071 to 072 does not meet the criteria for promotions
and the rules for promotions in the collective agreement. The September 1, 1989 letter
from Ms. Gray-Moores to Mr Haffenden{Employer, #4) created the positIons of Case-
worker, Social Rehabilitation Counsellor and Placement Advisor Ms. Dumas went to
Placement Advisor as a result of an organization change. Mr Nicholls did not. So he
was not affected by Art. 5 03 Art. 5 03 deals with "Eligibility to Apply for Postings"
Ms. Dumas got her job due to organization change under Art. 6, as a result of WhICh no
postmg was involved. Art. 5 03 says that-postings do not apply If an employee occupies
.an Identified progression position above the entry level, per Schedule B. Schedule B
specIfically Identifies Rehabihtal10n Counsellors I and II as a progressIOn pOSIl1on. The
preamble to Schedule B states
An employee who moves between the various levels in the occupational
group lOgs lIsted below
--
,\, 37
~,
The post-1990 positions, i.e. Voc. Rehab. Caseworker, Placement Advisor and Social
Rehab. Counsellor are also listed in Schedule B. They are progression Jobs according to
Art. 5.03 and Schedule B. Despite this, the Employer maintains it has discretion and can
act unilaterally regarding "promotion"
-- --
--
In his "Report to Staff' dated September 21,1977 (Employer, #11), Mr Betts, Executive
Director of the Human Resources Division, spoke of "a salary progression system to - - -
provide advancement through the salary range, based on the length of time you have been
in yo,,!r current salary grade" On February 13, 1990, in his letter to CuPE Local 1750
dated February 13, 1990 (Employer, #6), Mr Homer, Employee Relations Manager, says
"three new positions would be considered as progression jobs. Caseworker, Social ,
Rehabilitation Counsellor and Placement AdvISor" He claImed that movement from one
level to another was based solely on length of satisfactory work experience. His claim
was wrong. Movement from one level to another could happen earlier Nevertheless, he
described movement from one salary grade to another as ":progression"
Assuming that the rules changed in 1990, the Board-must determine which rules changed.
Mr Home did not refer to a requirement of 3 years in the position as a prerequisite for
movement from 071 to 072; he referred to length of satisfactory work experience, and the
point at which an employee was able to accept full delegation of authority, which will
vary from one person to another
/
The union provided a chart (Union Example A) which, it submitted, demonstrated what
occurred on an early promotion. An employee who IS at Step 2, 071 "would be progress-
ed" to Step 3 after 12 months. If the employer promotes him/her after 10 months at Step
2, as set out m Example A, s/he is paid at the next Step rate s/he would have been entitled
to if s/he had not been promoted, I.e. Step 3, 071 The pay rate at Step 3, 071 is between
the pay rates at Steps 1 and 2 m the 072 Salary Grade. The early promotIon to 072 will
result in the person requiring 5 years and 10 months from the minimum Salary Grade In
071 to achIeve the maximum in the 072 Salary Grade. In this example, although the
employee receives a higher pay rate earlier than under the "three-year rule", the earlier
promotIon is to theIr long-term detnment, as it takes them longer to earn the maximum in
the 072 Salary Grade.
It provided another Example (UnIon Example B). In this example, the employee began at
the minimum pay rate in the 071 Salary Grade, received the Step 1 increment after 6
months, the Step 2 increment after a further 6 months, and the Step 3 mcrement a further
'il
" 38
... 12 months later When the employee has been in the position for 2 years and 10 months,
the employer grants hlm/her full delegation of authority and promotes him/her S/he
receives the next increment s/he would have received had s/he not been promoted i.e.
Step 4, 071 The Step 4, 071 pay rate, is between Step 2 and 3 of the 072 Salary Grade.
The employee is promoted to between Step 2 and 3, 072. The next increments to which
s/he is entitled are the Step 3 increment in the 072 Salary Grade, 12 months after the
promotion, Step 4, 072 a further 12 months later, and Step 5, a further 18 months later
As a result of the timing of this promotion, the employee requires 6 years and 4 months to
reach the maximum in the 072 Salary Grade.
Mr Madden's chart (Employer #31) illustrates that lithe traditional promotion" results in
an employee who commences at the minimum pay rate in the 071 Salary Grade being
promoted at the end of 3 years, from Step 4, 071 to Step 4, 072, -and receiving the next
increment to which s/he would have been entitled had s/he not been promoted, i.e. Step 5,
071, which pay rate is equal to the Step 4, 072 rate, and achieving the Step 4, 072 maxi-
mum 18 months after the promotion, 4 years and 6 months after his/her initIal start date.
There is no authority for the three-year rule. The August 4, 1977 Memorandum of
Agreement (Union #7) has never been rescinded. The Employer highlighted para. 3 an~
6 of the Memorandum. However, para. 4(a) states "The first four steps in each salary
grade in the Senior Administrative Salary Scale, (total time period of three years)... 11 and
para. 4(b) says "If an employee's actual salary on May 31 is less than the amount
ascertained in (a) above, the salary will be adjusted to May 31, 1977, otperwise no
salary adjustment will be made." The Example in the Memorandum is in respect of
Salary Grade 072. Para. 5 of the Memorandum states "The fifth step in each salary grade
in the Senior Administrative Salary Scale applies to an employee with 4 1/2 years or more
on the current Job."
The Employer submits that Rehabilitation Counsellors 1 and 2 are two separate jobs.
- There are two job descriptions and two salaries. However, to conclude that this is a
promotIon ignbres the statements ofMr Betts and Mr Homer (Employer, #11 and 6),
and Schedule B, which refer to them as progressional jobs.
The 4 1/2 year rule, whIch indicates that it cannot take an employee more than 4 1/2 years I
to achieve the maximum in the 072 Salary Grade, applIes.
I
--- --
- -
\ - -
----
.~< 39 j
q,
The Union questions the accuracy of Ms. Rumak's Memorandum (Employer, #5). Ms.
Rumak was not called to give evidence. At the bottom of page 1, she wrote "performance
factors/measures in the progressIOn decision must be identified" The memo refers to
"three years work experience as a Rehabilitation Counsellor n" In the second paragraph
~ under the heading "Background" there is a reference to "d\lal salary grades, but with sin-
gular position descriptions" Singular position descriptions or combined descriptions do
not exist. In the third paragraph under the same heading, ~he contemplated "a lower en-
tryJevel (071) to the jobs, of a reasonably short duration with progression to salary
grade (072) based on satisfactory performance" and noted a 11 'time driven'-past practIce of
three years" The three years applies to new employees who enter at the minimum of the
071 range. The only ones the union could identify who fit that description were new em-
ployees. Those who entered the positions from the bargaining unit entered at a further
Step in the 071 Salary Grade, after receiving a 5% promotional increase. While the last
paragraph on page 1 of the memo refers to "factors/measures in the progression decision",
the word promotion appears for the first time at the end of the memo.
"
MrPicken's June 21, 1993 letter to the Union (Employer, #8) speaks of progression,
although he says he cannot reply to the grievance at this point. His October 21,1993
letter (Employer, #9) said that in the Employer changing its promotional practices there
had not been a VIolation of the collective agreement. This was wrong, if in fact what is
occurring is a promotion. The grievance was not denied on that basis. He denied the
grievance in these words.
In summary, to revert to the previous system would in fact create an overpayment
to the majority of those staff in these situations. On the basis of fairness, I
therefore must deny the grievance.
It was denied on the basis of fairness. Ms. Kucerak's figures (Employer, #16) indicate
I that Mr Picken's assessment of the Impact of "the new method" was made on the basis of
an erroneous belief that the majonty of the employees had benefited from It. As Ms.
Kucerak's figures mdicate that the vast majority would benefit from the applIcation of
"the old method", the grievance should succeed.
-
The Union provided a copy of sectIon 8.2320 on "Progressive wage increases" from
Brown and Beatty, Canadian Labour Arbitration Butterworths. Toronto, August, 1995
and submitted that the language of the collective agreement governs these Issues. It
submitted that pages 6 to 7 of Community Livmg Niagara Falls and S.E.I.U.. Local 204
(unpublished), April 8, 1996 (Tacon) are authority for the proposition that the language of
--
the collective agreement should be gIven its ordinary mean 109 unless an absurdity would
- --.- ~
~._-----==--, - --
-
\
--- -
-
.~ 40
\,
result. The employer's view would result m employees who are domg the same Job for
the same employer being paid dIfferent wage rates. Re School District No. 39 (Vancou-
ver) and Vancouver Teachers' Federation (1996) 53 L.A.C. (4th) 33 (Hope) indicates that
the rules of Interpretation require there to be a clear expression of an intention to confer a -
financial benefit. Bottner (0247/88) and Aubin (0515/88) deal with anniversary dates.
If the Board accepts the employer's position regarding promotion, the grievance must fail.
If it accepts that what occurs is a progression, it must follow Aubin, supra, unless it can
distinguish it, as well as Mattison (228/87). If the Board finds for -the Union, it should
refer to these cases regarding what to do about people who will have been overpaid.
These employees should not be required to reimburse the employer They are protected
by the Employment Standards Act regarding employers' errors in payment, and by virtue
of the passage of time, they should remain in the Salary Grades to which they are
currently assigned.
The union's and the employer's evidence regarding Ms. Robertson's grievance must be
considered carefully
Ms. Kucerak's claim that Ms. Page was promoted in error, and Mr Prowse's statement
that he was unable to explain how her promotion occurred, is insufficient to establish an
error There is no concrete evidence from the people who effected the changes in Ms.
Page's Salary History as to whether it was an error
Although the employer submitted that the Union produced only one person who was
promoted before three years, the employer's own evidence is that 121 bargaining unit
employees have been detrimentally affected by "the new method" as compared to 97 who
were not. The grievance should succeed.
Mr. Nicholl~-(on hIS own behalf):
After I got the letter from the employer, it has been interestmg. The evidence indicated
that m 1990 there was a communicatIon of a change from Counsellor to C3:seworker, and
a change in the rules of progression from 071 to 072. Mr Picken's letter in 1993 says that
the Union identIfied a problem with the progressional rule. We are here 4 years later I
took the Caseworker positions because I could progress and recapture lost income. I was
told the employer had the right to progress me as it dId. The evidence has not established
the accuracy of the employer's chart (Employer, #16). The employer had the nght to
employ me and progress me.
~-
--
- --.-
-
--
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-...-
r{\ 41
The Employer's Reply Arl:ument:
Mr Carroll referred to Bill 162 in his evidence. The legIslation speaks for itself.
We rely on s. 18 becailse there is no management rights clause in the collective
- - --
--agreement and s. 18 deems every collective agreement to have one. The Weatherill
decision is -irrelevant. It dealt with the joint job evaluation committee andl has nothing to -
r
do with promotion or anniversary dates.
Art. 2.16 says the GSB cannot amend, add or delete. The Board cannot read in something
that is not present in the collective agreement.
)
The employer makes a contract with the indIvidual employee; that is acceptable as long
as there is no violation of the collective agreement and the employer complies with the
Salary Grades.
The provisions in Art. 5 and Schedule B are present so that employees do'not have to
apply for promotions. A promotion does not have to mean a salary increase. Schedule B
does not deal with salary treatment. That is found in Schedule A. There should have
been a separate way of dealing with these jobs but there isn't one.
There is no magic in the reference to a total time of 3 years m para. 4(a) of the August,
1977 Memorandum of Agreement (Union #7). This applies to movement within the same
job in the same scale. The words are not there.
The terms "promotion" and "progression" have been used interchangeably in the memos.
The memos do not determine the issue. The collective agreement does.
The employer admIts that some people were advantaged by the "new method--full
delegation of authority" and others were disadvantaged.
The employer provided a chart "Comparison. PromotIon at 6 months v 3 years"
(Employer, Example A) which, it submitt~d, indicated that an employee hired at the
minimum pay rate of the 071 salary grade and promoted to 072 six months later would
earn $1,703.86 more than s/he would have earned if s/he had been promoted on his/her
third anniversary Under "the new method" the employee would reach the maximum at
the end of 5 years, but would still be ahead in terms of earnIngs. The chart was prepared
I
in 1996. Mr Picken's letter was prepared 3 years earher, in 1993 The Union should
have brought the matte~ forward in collective bargaining, as Mr Picken suggested.
- ----
- -
- -
-_..
-
- -. ,- _.~.. . ~ -- --- -- ---_.
'9 42
To accept the UnIon's argument, the board must find that that 071/072 positions should be
the same job and same classification. By agreeing to the collective agreement, the union
has agreed that the jobs in question are two separate jobs. The title "Schedule A,
Classifications in the Senior Administrative Salary Scale" appears at p. 77, of the
collective agreement and each classification is set out by Salary Grade. The GSB cannot
deal with classification any more.
Whatever your interpretation, you should remain seised with respect to implementation.
By the Union.
Don't just remain seised. Resolve Nicholls, Dumas and Robertson.
The Collective Agreement:
The relevant provisions of the collective agreement are as follows.
ARTICLE 1
RECOGNITION
1.01 The Employer recognizes the Canadian Union of Public Employees Local
1750 as the exclusive bargaining agent for all of its employees, save and
except supervisors, persons above the rank of supervisor, and persons
excluded by virtue of the provisions of the Crown Employees Collective
Bargaining Act.
ARTICLE 2
GRffiVANCEPROCEDURE
;!,' 2.16 The Grievance Settlement Board shall have no jurisdiction to alter,
change, amend or enlarge any provisIOn of the CollectIve Agreement.
ARfICLE 5
PROMOTIONS AND STAFF TRANSFERS
501 When any new position is created within the bargaining unit, or any
vacancy of a permanent nature occurs, or any vacancy of a-temporary
nature occurs that is expected to exceed thirty (30) calendar days (for
reasons other than vacations), the position will be filled in accordance WIth
the proviSIOns of this Article.
5 01 "First consideration will be given to qualIfied employees who occupy the
(a )&(b) same or hIgher salary classification within .the bargaining unit who are.
(a) affected by organization or other changes which have resulted, or
are likely to result, in a redu~tion of workforce in accordance with
--
r
~ 43
the criteria outlined in Article 6.
, (b)
The placement of affected or handicapped employees shall be on the basis
of seniority, provided the employee has the qualifications and ability to
------ perform the required duties in a competent manner Retraining will be
provided to affected employees in accordance with Article 6.06(a) and (b).
" ---
5.01(c) All vacancies shall be posted on designated Boardwide bulletin boards
5.02 Information in PostiniS
5.03 Eligibility to Apply for PostiniS
Consideration for a posted vacancy will be given to any employee who has
at least three (3) months service in their current position. This require-
ment does not apply if their current job was acquired as a consequence of
technological or organizational change (Article 6) or they occupy,an
identified progression position above the entry level as outlined in
Schedule "B"
5.04 Interviewing of Applicants
5.05 Role of Seniority in Promotions and Transfers
5 06 Trial Period
5.07 Transfers OutsIde the Bargaining Unit
5 08 Notification to the.Employee and Union
ARTICLE 6
TECHNOLOGICAL AND/OR ORGANIZATION CHANGE
6.01 Definition
In this Article technological and/or organization change means the intro-
duction of equipment, material, work functions, processes and methods,
organization and geographic location, significantly different from that
previously utilized.
6.02 Adverse Effects to be Eliminated
In introducing technological and/or organization changes, the Employer
will make every reasonable effort to minimize or eliminate adverse effects
on employees caused by such changes.
----- -- - ----- - -- - -.- ----- - ----- --
i
,
~
., 44
6.03 Advance Notice and Information
- I
(i) When introducing technological and/or organizational change, the
Employer shall notify the Union as far as practicable in advance of
- its intentions and provide updates as new developments occur
--- (ii) At least eighty (80) working days in advance of the change, the
---- Employer shall, to the best of its ability, provide the Union with
written notice as to the nature of the change, date of change,
approXImate number, job titles, location, name and seniority date
of employees likely to be affected and the expected effects on
employees and job descriptions and salary grades for all new or
changed jobs as approved.
6.04 Consultation
The Union and the Employer shall meet at either party's request with the
intent of reaching agreement in good faith regarding any special provisions
that may be necessary to assist affected employees beyond those contained
in the Collective Agreement.
6.0S IdentIfication of Mfected Employees
I
In notifying the Union in accordance with Article 6.03(ii) the Employer
shall identify and advise those employees affected by the change,
(a) whose present jobs will be significantly changed,
(b) whose jobs will become redundant.
6.06 Retraining
(a) Where, as a result of technological and/or organizational change,
an employee's present position is significantly changed, requiring
new or modified skills, such employee shall be provided with the
opportunity for retraining. The Employer will provide a period not
to exceed eight (8) months for this retrainIng during which tIme the
employee must acquire the skills required in the changed positIon.
(b)
(c)
AJITICLE 18
PAYMENT OF WAGES AND ALLOWANCES
18.01 The employer shall pay salaries weekly in accordance with Schedule A
attached hereto and forming part of this agreement.
SCHEDULE "A"
THE WORKERS' COMPENSATION BOARD ONTARIO
SALARY SCALES AND CLASSIFICATION IN THE
BARGAINING UNIT
i' 45
f~
The employer shall pay salaries in accordance wIth thIS Schedule and this
Schedule shall apply to all employees m the classifications listed herein.
An employee will receIve notice of at least one month if, due to performance, the
incremental mcrease is not to be received.
--- SCHEDULE "A"
SENIOR ADMINISTRATIVE SALARY SCALE
(scale effective October 1, 1991 reproduced in Appendix A)
1 The anniversary date is based on the date the employee commenced on the
current job. This may be either the date of hire, or the-date of a subsequent
transfer
2. The time periods set out at the top of the columns are reflections of the
anniversary date set out in (1).
Notwithstanding paragraph one, where an employee is transferred to a
new position in the same salary grade, the anniversary date:will not be
changed. \
3 An employee who is promoted will have his salary adjusted to the next
step he would have achieved had he not been promoted, and his future
salary progression will thereafter be govern.ed by the time interval for the
next higher amount in his new salary grade. In the event that the employee
is already at the maximum for that Salary Grade, he will have his salary
adjusted to one time interval less on the higher salary grade.
ThIS is subject to the employee being paid a salary rate no less than the
minimum rate for the new salary grade.
*
** An employee promoted from thIS step will receive a 5% salary adjustment if the
promotion is only 1 Salary Grade. If the promotion is more than oile Salary
Grade, the employee will be paid one Salary Grade higher in the 18 month step.
SCHEDULE "A"
CLASSIFICATIONS IN THE
SENIOR ADMINISTRATIVE SALARY SCALE
Salary Grade -
070
071 Placement Advisor
Rehabilitation Counsellor 2
Social Rehab. Counsellor
VocatIonal Rehab. Caseworker
072 Placement Advisor
- ~ - - -- "
"
c~ 46
RehabilitatIon Counsellor 1
SOCIal Rehab. Counsellor
Vocational Rehab. Caseworker
SCHEDULE B
. . ELIGIBILITY
An employee who moves between the various levels in the occupational
groupings listed below will not be subject to the three (3) month restriction from
bidding on a posted vacancy
Upon initial entry into one of these occupational groupings, an employee will be
required to meet the usual provisions of Article 5 Section 3
The occupational groupings are:
Senior Administrative SalaQ' Scale
Voc. Rehab. Caseworker 071 to
Voc. Rehab. Caseworker 072
Placement Advisor 071 to
Placement Advisor 072
Rehab. Counsellor n 071 to
Rehab Counsellor I 072
Social Rehab. Counsellor 071 to
Social Rehab. Counsellor 072
S. 18 of CECBA , R.S.O 1990, c. 50 stated:
18.(1) Every collective agreement shall be deemep to provide that it is the
exclUSIve function of the employer to manage, which function, WIthout limitmg
thegenerahty of the foregoing, includes the right to determine,
(a) employment, appointment, complement, organIzat~on, assign-
ment, dlsciphne, dismissal, suspension, work methods and proce-
dures, kmds and locations of equipment and claSSIfications of
positIOns, and
I
(b) merit system, trainIng and development, appraIsal and superannua-
tion, the governIng prinCIples of whIch are subject to review by the
employer with the bargaming agent,
and such matters will not be the subject of collective bargaining nor come within
the JurisdIction of a board.
---
i\ 47 ,
.~
Reasons.
Shortly after Dupuis (supra) was decided, the parties agreed to major and substantive
restructuring of the Senior Administrative Salary Scale (SASS) to a time-interval
increment system. Although there have been some modifications to the accompanying
notes and changes to the pay rates, the current SASS retains much the same appearance
and structure in the 1993 collective agreement as in the 1976-77 agreement (Union, #8).
Consequently, the Dupuis decision's usefulness is confined to historical background as an
aid to the interpretation of the provisions of the current agreement and the parties'
intended meanIng as it applies to the dispute before the Board.
The language of the collective agreement must be examined carefully to determme the
parties' intended meaning regarding movement from Salary Grade 071 to 072. The
collective agreement refers to such movement, but only indirectly It does .not indicate
the criteria for movement from one Grade to another, or the time when such movement
will occur, with the exception of reference in the Notes under the SASS to "promotions"
Art. 5 does not clearly IdentIfy movement from one Salary Grade to another in the
context of a "progression position" as a "promotion" The word "promotion" appears
elsewhere in the agreement in the Notes to the SASS, and was used in the evidence to
describe both the movement from one Salary Grade to another by an incumbent of a
"progression position", as well as the adjustments to the incumbents' pay rates when they
move from Step 4, 071 to Step 5, 072 and from Step 5, 071 to between Step 4 and 5, 072
and from other Steps in Salary Grade 071 to 072.
Para. 4 of the August 4, 1977 Memorandum of Agreement (Union #7) indicates that the
parties agreed parenthetically that the first four steps in each Salary Grade would be com-
plete~ m a total time period of three years. I conclude, on all the evidence, that they were
referring to an employee who entered the position at the mInImUm level, regardless of the
Salary Grade on entry, who did not evidence "performance problems" Para. 5 of the
Memorandum indicates that the parties agreed that "the fifth step in each salary grade...
applies to an employee with 4 1/2 years or more on the current job" At tnat point, the
only relevant positions were Rehabilitation Counsellor 2 and 1 I conclude that the par-
tIes intended, by the phrase "in each salary grade" that a Counsellor could enter at the
minImum of Salary Grade 072 and at the end of 4 1/2 years receIve the Step 5, 072 pay
rate, and likewise, that s/he could enter at the minimum of Salary Grade 071 and at the
end of 4 1/2 years receive the Step 5, 071 rate. This, m and of itself, suggests that the
-- l
-
"
1 48
parties, by their Memorandum and the new SASS, contemplated only that an employee
would move from the minimum to the maximum on the same Salary Grade in 4 1/2 years.
In the 1976-77 agreement, the pay rate at Step 5 of each Salary Grade in the SASS was
equal to the rate at Step 4 of the next Salary Grade. Applicable to the Rehabilitation
Counsellors, the rate at Step 5, 071 was equal to the rate at Step 4, 072. This structural -- ---
l
feature was repeated in the SASS in each subsequent agreement.
Art. 5.03 states that the requirement of consideration for a posted vacancy does not apply
--
to employees whose current job was acquired "as a consequence of technological or
'.
organization change (Article 6) or they occupy an identified progression position above
the entry level as outlined in Schedule "B" At this point in their agreement, the parties
refer to a "progresSIOn positIon outlined in Schedule 'B'" The agreement does not
directly define a "progression position", but Schedule B describes an incumbent of a
"progression positions" as
An employee who moves between the various levels in the occupational
groupings listed below
and includes within the "occupational groupings" the positions which are the subject of
this grievance: Voc. Rehab. Caseworker 071 to Voc. Rehab. Caseworker 072, Placement
Advisor 071 to Placement Advisor 072; Rehab. Counsellor U, 071, to Rehab. Counsellor
I, 072, and Social Rehab. Counsellor 071 to Social Rehab. Counsellor 072. Schedule
"A", on the other hand, identifies each of these positions or "occupational groupings" as
"Classifications"
The substance of the dispute before this Board IS the parties' intended meaning of the
above-noted provisions in theIr agreement. The identificatIon of the positions in question
under the tItle "ClaSSIfications" 10 Schedule A does not In and of itself remove the Issue
of the partIes' intended ~eaning of the terms of their agreement from the consideration of
this Board.
-
Art. 5 speaks of returning employees, after unsatisfactory tnal penods or transfers outside
of the bargaming UnIt, to his/her former "salary classification" and placing them m a
pOSItion for which they are qualIfied WIthout loss of senIonty The evidence dId not deal
with the parties' practIce regarding whether employees returning to theIr former "salary
classificatIon" are returned to theIr Salary Grade, or to the preCIse Step WIthin the Grade
which they previously OCCUpIed. It appears, however, reasonable to infer that the parties
VIewed a "salary claSSIfication" as different from a position classification.
- ---- --
(
"
I~ 49
A review of the relevant provisions of the collective agreement discloses that the parties
referred to the positIons in question at various points in their agreement as "occupational
groupings", "progression positions" and "classifications" Their reference in Schedule B
to movement "between the various levels in these occupational groupings" is the identify-
ing feature o~ "progression-positions" The agreement does not define the term "various
levels" used i.ILS~I1~ule B. It is possible that the parties were referring only to Steps or
increments within the same Salary Grade, but they could also have intended to include
movement from one Salary Grade to another
A basic rule of interpretation provides that where the parties have used different terms
within their agreement, they meant different thmgs. Thus, if by "movement between the
various levels in these occupational groupings" the parties had meant "movement I
between the various Steps in a Salary Grade in these occupational groupings" or
"movement from one increment to another within a Salary Grade In these occupational
groupings", they could have expressed themselves in those terms. The use of different
terms "movement between the various levels ", rather than "Steps" or "increments", and
"in these occupational groupings", rather than "within a Salary Grade in these occupation-
al groupings", suggests that the parties intended a broader meaning, one which comprised
both movement from one Step or increment to another, and also from one Salary Grade or
level to another, within the occupational grouping of e.g. Placement Advisor 071 to -
Placement Advisor 072, etc. f
The evidence given enables some conclusions to be drawn regarding the parties' practice
- around the movement of employees from Salary Grade 071 to 072 after the creation of
the newly structured SASS in the 1976-77 collective agreement. Barring performance
problems, an employee who entered the Rehabilitation Counsellor 2 position at the Mini-
mum level in Salary Grade 071 received the pay rates/increments at the tIme intervals
indicated, such that s/he was receIving the Step 5, 072 maximum pay rate no later than
when s/he completed 4 1/2 years in the positIon. This was ~ccomphshed by certam
procedures applied by the employer when the incumbent had completed 3 years m the
position and was eligible for and was given the Step 4 -increment. At the same time as the
incumbent received the Step 4 increment, or shortly thereafter, the employer applied Note
3 below the SASS and adjusted hIs/her salary "to the next step he would have achIeved
had he not been promoted, and his future salary progression will thereafter be governed
by the time interval for the next hIgher amount in his new salary grade." The next step
was Step 5, 071 The employee received the Step 5, 071 increment, which was equal to
--
'i'
~ 50
the Step 4, 072 pay rate. The employee was also moved to or placed at Step 4, 072.
These procedures became known as the "double jump" and "promotion" Barring perfor-
mance problems, 18 months, or 11/2 years after the "double jump", which entailed move-
\
ment from Salary Grade 071-to 072, the employee received the Step 5,072 maximum _ _ -
pay rate. ---
The evidence as to the reason Carroll Page was designated 072 before she had been a- --
Rehabilitation Counsellor 2 for a full three years was inconclusive. The Job Descriptions
dated January 19, 1988 (Employer #2) which indicated that 3 years of satisfactory perfor-
mance as a Rehabilitation Counsellor 2 at Salary Grade 071 was a prerequisite or "basic
requirement" for becoming a Rehabilitation Counsellor 1 is the earliest and the only
written indication that the employer did not reserve the discretion to move Counsellors
from 071 to 072 before they had been in the position for three years. Ms. Page was
designated 072 in 1986, two years earlier However, the section titled "Discretionary
Considerations" in the PolIcy & Procedural Manual (Union #12) dated May 31, 1978
contemplated "accelerated increases" for "outstanding performance" Consequently, the
evidence is as consistent with the possibility that the employer was recognizing Ms.
Page's "outstanding performance" by moving her to 072 and by oversight failed to give
her a concomitant 5% increase, as it is with the possibility that the designation was "a
mistake"
The evidence suggests and I find that prior to January, 1990, the parties had developed a
practice of moving Rehabilitation Counsellors 2 from the 071 Salary Grade to the maxi- ,
mum in the 072 Salary Grade in no longer a period of time than 4 1/2 years, barring
performance or merit problems.
A further aspect of the partIes' pre-January, 1990 practIce was that Counsellors who
entered their positions at a pay rate above the minimum moved through the increments in
the Salary Grade to which they were initially assigned, be it 071 or 072, at the time
mtervals speCIfied In the SASS, barfmg performance problems. If they reached Step 5,
071 prior to the completion of 3 years, it would appear from the January 18, 1988
POSItIon Descnption (Employer #2) that after that date, they remained at Step 5, 071 until
they were in the position for three years, at which pomt, barrIng performance problems,
they would receive a 5 % increase and be considered at between Step 4 and Step 5 in the
072 Salary Grade. The evidence IS inconclusive as to the practice regarding movement of
such employees from Salary Grade 071 to 072 before three years in the pOSItion prior to
January 18, 1988. However, the Ma12ual (Union #12) strongly suggests that the
---
--
-..-
i'
... 51
employer reserved .the discretion to move Counsellors to the 072 Salary Grade earlIer,
and occasionally exercised that discretion.
- - _The introductory note in Schedule A which precedes the SASS indicates that the
-- EmplQyer can withhold an increment, notwithstanding the passage of the time stipulated
--- for each increment, due to performance, provided it gives one month's notice. It indicates
-that "performance" is the sole criterion for declIning to provide the employee the next
increment at the time desIgnated on the SASS. Although the evidence did not establish
the year in which the parties introduced the words" An employee will receive notice of at
least one month if, due to performance, the incremental increase is not to be received"
into their agreement, I infer from the evidence as a whole that those words have been in
the agreement for some years prior to January, 1990. I conclude that by those words, the
parties left the employer the discretion to determine the performance standard(s) it would
require at each time interval, and the right to assess an mcumbent's performance or ment
in relation to that standard or standards and exprt!.ssly reserved the employer the right to
decline the "incremental mcrease" on one month's notIce.
The use of the words "due to performance" implies an element of "merit" in the otherwise
time-dnven movement through the pay rate Steps or increments. That language and the
mandatory language lithe Employer shall pay salaries in accordance with this Schedule"
in Art. 18.01 and at the beginning of Schedule A reflect the parties' intention that the
employer pay Schedule A employees the rates in the SASS on completion of each time-
period, "Step 1 - 6 months", "Step 2 - Further 6 Months", "Step 3 - Further 1 Year",
"Step 4 - Further 1 Year" and "Step 5 - Further **18 Months" WIthout exception, barring
a performance problem. Schedule A does not define "promotion" or state that movement
from one Salary Grade to the next constitutes a "promotion" The notes under the SASS
are genenc. Note 3 and" ** " indicate the adjustment which is required to the salary of
employees who are "promoted", as opposed to those who work for the requisite periods of
time within a Salary Grade or Grades._ I conclude that the parties intended those notes to
apply to Art. 5 "promotions" in the sense of successful applicatIOns for posted vacancies
- of higher paying positions, as well as to the salary adjustments which accompanied
"movement between the various levels in the occupational groupings", i.e. movement
from one Salary Grade to another in "progression positions" Identified in Schedule B so
as to enable the incumbent to earn the Step 5, 072 maximum pay rate by the end of 41/2
years m the posItion.
--
--
--- --
.-
," 52
Throughout the evidence, the parties used the terms "progression" and "promotion" and
"to progress" and "to promote" mterchangeably This is not surprising, because the
collective agreement provides no definitions in the context of these particular positIons
and this conundrum, and the definitions of these words are quite similar, and connote
upward or forward movement or advancement. --
It is difficult to conclude that it is a mere coincidence that the Step 4, 072 increment/pay
rate has been the same as the Step 5, 071 increment/pay rate on the Schedule A Senior
Administrative Salary Scales since the 1976-77 agreement to the 1993 agreement. This -
feature does not appear in the other Salary Scales. I conclude that that feature of the
Scale, along with the charactenzation of these as "progressive positions" in Art. 5 and the
reference to movement "between the various levels" in Schedule B, reflects the parties'
intentions that employees would move through the increments and from Salary Grade 071
to 072 in 4 1/2 years, barring performance problems. I conclude that the'movement from
071 to 072 was seen as a progreSSIOn, in the sense of forward movement, or advancement,
within a mutually understood and structured period of time, rather than a "promotion"
I conclude, on the evidence, that until January 1, 1990 the partIes interpreted and applied
the provisions of the collective agreement with the shared and reasonable expectatIon that
RehabilitatIon Counsellors, who were incumbents of "progressIOn positions", would
move through the Steps in the SASS and from Salary Grade 071 to 072 within 4 1/2 years
of entering the position, barring performance problems, which were reserved to the
employer to identify As early as 1982 the Administration Procedures Manual (Employer
#20) contemplated Rehabilitation Counsellors 2 receiving their "regular incremental
adjustment" and "their promotional adjustment" (usually either to Step 5, 071 and there-
after Step 4, 072, or 5% of Step 5, 071) after 3 years, and referred to this process as
"promoted" Schedule A reserved to the employer the right, "due to perfqrmance", to
withhold "incremental increases" I conclude that the parties shared the Ihtention that
"mcremental mcreases" included both Step increases as well as salary adJustment(s)
aSSOCIated with movement from Salary Grade 071 to 072, and that the employer had the
right to give one month's notIce if any pay rate adjustment, including the adjustment(s)
associated with movement from Salary Grade 071 to 072, was to be WIthheld. No
evidence was lead as to the circumstances, if any, under which this right was exercised.
Nothing, however, necessarily turns on such eVIdence or the lack of it.
Bill 162 receIved Royal Assent on July 26, 1989 To assist in the effectIve
implementation of the amendments, as of January 1, 1990 the employer changed the
- ---
, 53
focus of the functions of former Rehabilitation Counsellors 2 and 1 In this context it
assigned the incumbent Rehabilitation Counsellors to three other positions, which were
also "identified progression positions" under Art. 5.03 and Schedule B. The employer
viewed the Vocationa1.Rehabilitation Caseworker, Social Rehabilitation Counsellor and
-- Placement Advisor positions as having been acquired as a consequence of technological
--- ~~- - or organizational change wIthin the meaning of Art. 6 (Employer #34). ItS intention was
to introduce an incentive to employees to_~dvance to the level of full delegation of autho.;-
rity at the earliest possible date. It was expected that this incentive would result in imme-
diate financial gain to the employees who were able to undertake full authority earlIer
than some of their colleagues, and would result in more efficient delivery of services to
clients. The "new method" was not intended to deviate from the employer's obligations
under the agreement. Aside from moving the affected employees from Salary Grade 071
to 072 when the employer determined they were able to undertake the responsibility
associated with full delegation of authority, the employer paid the affected employees the
pay rates associated with each time interval and each Step on the SASS.
The "new method" had unintended results. Some employees would achieve the Step 5
maximum later than 4 1/2 years. Some would earn less, despite an earlier move from 071
to 072, than they would have earned in the 4 1/2 years from their start date. Others
would earn more in that period. The earnings of still others may not have been affected.
Several months after implementing the Vocational RehabilitatIon Strategy and the full
delegation of authority criterion for movement of incumbents of these three positions
from Salary Grade 071 to 072, the employer acknowledged that its change of their
anniversary dates to January 1, 1990, was having an "adverse impact" on some of the
employees (Employer, #34). The authors of the June 29, 1990 Memo did not testify
The Memo described the employer's actIon as having InItIated "a lateral move to another
job for which the employee requires limited additional training of less than one month."
In an effort to comply with ArJ. 6.02, which requires the Employer to "make every
reasonable effort to minimIze or eliminate adverse effects on employees caused by [the
mtroduction of organizational] changes", the Employer dIrected that employees "aSSIgned
to the pOSItion of Vocational Rehabilitation Caseworker, Social Rehabilitation Counsellor
or Placement AdVISor" would retam their preVIOUS anniversary dates. The change in
annIversary date had lengthened the period of time those employees would reqUIre to
reach the Step 5, 072 maximum, and was viewed as an "adverse effect" within the
meaning of Art. 6.02.
----
-_.
-- - --
(
--.--.- -
----- --
i
(' 54
The other adverse effect on the salary of some of the employees, of which the Union now
grieves, arising as a consequence of the timing of the movement of some of the
employees from 071 to 072 when they were given full delegation of authority, did not
receive full attention until some time later, possibly as late as 1993 (Employer, #8 and
#9). The timing of the movement of some, though not all, of the~ employees from 071 to
072 had the similar effect of lengthening the period of tim~ it would ta_~~ those employees
to reach the Step 5, -072 maximum. As a result, some of the employees were paid less
overall within the same period of time than they would have been paid if they had been
moved from 071 to 072 at the end of three years in a progression position and 18 months
later have started to receive the Step 5,072 maximum, while others were paid more
overall within the same period of time than they would have been if they had been moved
from 071 to 072 at the end of three years in a progression position, and 18 months later
have started to receive the Step 5, 072 maximum.
/"
,
As the delay in achieving the Step 5, 072 maximum which resulted from the change in
anniversary date was viewed by the employer as an adverse effect, which the employer
adjusted and avoided by rescinding the change in anniversary dates, consistency requires
the same conclusion to be drawn WIth respect to the effect on some of the employees of
"tying" of the movement from 071 to 072 to the point of "full delegation of authority"
"Full delegation of authority" and a concomitant pay increase and movement from 071 to
072 can be conferred from several months to several years after commencing m the
position. This has the potential to adversely effect a substantial number of employees
when the long-range impact on their salaries is considered, however unintended. The
adverse effect arises from the amount of time each individual requires, af~er movement
from 071 to 072, to move through the remaining Steps or increments to the Step 5
----
maximum pay rate. An employee who is moved from 071 to 072 with full delegation of
authority withm six months of entering the position (Employer, Example A) would earn \
more than s/he would have earned if s/he had moved from 071 to 072 on his/her third
annIversary and had received the Step 5, 072 pay rate at the end of 4 1/2 years in the
position (Employer Example A). However, an employee who is moved or promoted from
Step 2, 071 to 072 after 1 year and 10 months in the position, will require a total of 5.83
f
years m the pOSItIon before becommg entItled to receive the Step 5, 072 maXImum pay
rate (Union Example A). An employee who IS granted full delegation of authority and
moved or promoted from Step 3, 071 to 072 will require a total of 6 years and 4 months
before becoming entitled to receive the Step 5, 072 maximum (Union Example B).
- -
--
")
" 55
Conclusions.
Re the Group Gnevance:
The language of the coliective agreement provides the employer the discretion and the
authority to determine when an employee may be granted full delegation of authority It
also requires the employer, in so doing, to ensure that barring performance problems,
Vocational Rehabilitation Caseworkers, Social Rehabilitation Counsellors and Placement
- Advisors move between the various levels in their occupational groupings, i.e. between
Steps as well as Salary Grades, at the time intervals indicated in the SASS and reach the
Step 5, 072 pay rate by the end of 4 1/2 years in the position. In the case of employees
who enter the position at the Minimum in the 071 Salary Grade, thIS has generally been
,
ensured by moving the employee from Step 4, 071 at the end of 3 years (barring
performance problems) to the Step 5, 071 pay rate and concomitantly moving them to
Step 4, 072. It also requires the employer to "make every reasonable effort to minimIze
or eliminate adverse effects on employees caused by [organizatIonal] changes"
I conclude that as a consequence of implementing the Vocational Rehabilitation Strategy
and the "full delegation of authority" criterion for movement from Salary Grade 071 to
072, the Employer inadvertently breached Art. 18.01 and Schedule A, and Art. 6.02 of
the collective agreement. It inadvertently failed to ensure that SocIal Rehabilitation
Counsellors, Vocational Rehabilitation Caseworkers and Placement Advisors achieved
the Step 5, 072 maximum at the end of 41/2 years, barring performance problems WhICh
resulted in the employer giving the employee at least one month's notice re non-receipt of
an increment and/or salary adjustments associated with movement from Salary Grade 071
to 072. In issuing the June 29, 1990 Memorandum reinstating anniversary dates (Em-
ployer #34), the Employer made reasonable (and commendable) efforts to eliminate the
\
adverse effect on employees' salaries within the meaning of Art. 6.02. An adjustment to
the salaries of the Social Rehabilitation Counsellors, Vocational Rehabilitation Casewor-
kers and Placement Advisors which were adversely Impacted as a result of the timing of
the movement from 071 to 072 would constItute a parallel and conSIstent effort to
ehmmate another adverse impact on them. The employer is therefore dIrected to adjust
the salaries of employees adversely affected by the Said implementatIon in accordance
WIth this decISIon and the Memorandum of Agreement between the partIes dated
February 27, 1995 (Union, #2).
'-'.'- ~
-~
--
-~
56
ConclusIOns re Mr. Nicholls.
No evidence was lead as to the practice of the employer negotiating with the union as to
the wage rate at which non-bargaining unit employees entering bargaining unit positions
will be paid. It is not possible for this Board to conclude, on a bare assertion by counsel,
that such a practice existed. It is not possible, in these circumstances, to conclude that
such a practice did not exist. ~
-.
-- Art. 1 recognizes CUPE Local 1750 as the exclusive bargaining agent for all WCB
employees "save and except persons excluded by VIrtue of the proviSIOns of the Crown
Employees CollectIve Bargaining Act" When the employer hired Mr Nicholls into the
Caseworker position in 1991, he was m an excluded position and fell outside the letter of
Art. 1 in terms of entitlement to representation and any possible obligation on the part of
the employer flowing from that Article to negotiate an incoming non-bargaining-unit
employee's pay rate with the Union. In the absence of any evidence as to past practice, it
IS not possible to conclude that Art. 1 obliges the employer to negotiate an incoming non-
bargaming-unit employee's starting pay rate on the SASS. In 1994, prior to re-entering
the bargaining unit as a Caseworker, Mr Nicholls was a EE.L. Adjudicator The issue of
whether that position and others continued to be excluded for the purpose of Art. 1 was
determined on May 13, 1996 in CUPE Loc. 1750 (Union) and WCB (unreported)
1029/94 On both occasions in which Mr Nicholls entered bargaining unit positions, the
employer, in good faith, considered Mr Nicholls an excluded employee by virtue of the
provisions of CECBA, R.S.O 1990, c. C-50.
As it is not possible to conclude m the circumstances of this case the presence or absence
of a practIce of consultatIOn between Management and the Union as to the startmg pay
rate of employees entering VR Counsellor or Caseworker, Social Rehabilitation
Counsellors, and Placement AdVIsors from non-bargaming-unIt positIons withm and from
outside the WCB, it IS also not possible to conclude that the starting Salary Grade and
Step of such employees IS a matter entirely withm the discretion of Management. I
recommend, m the interest of furthering positive labour relations and improving
commUnICatIOn between the parties, and in view of the mistrust that thIS issue has
engendered, that the partIes informally engage in such consultations and a~tempt to agree
as to the starting pay rates and Salary Grades of such employees.
.-
--
..
't 57
Conclusions re Ms. Dumas' Grievance:
The evidence raised doubt as to whether Ms. Dumas' original annIversary date of May 16,
1988 was applied in determining her pay rate entitlements after January 1, 1990. The
evidence did not suggest that she experienced any performance problems. She entered
her position as a VR Counsellor on May 16, 1988 at the 071 Minimum and was entitled --I
--
after 6 months to the Step 1, 071 rate. A further 6 months (total 1 year) later she was
entitled to the pay rate at Step 2,071 Twelve months after that, i.e. 18 May, 1990, she I
was entitled to the rate at Step 3, 071 Pursuant to the June 29, 1990 Memorandum
(Employer #34) her anniversary date did not change to January 1, 1990. One year later,
May 17, 1991, she was entitled to be paid at the rate at Step 4, 071 In order to ensure
that she would achieve the Step 5, 072 maximum within 4 1/2 years, she was entitled to
the "double jump" at that point, i.e. on May 17, 1991 she was entitled to be paid at Step 5,
071 and to be placed at Step 4, 072. On or about November 13, 1992, i.e. eighteen
months later, she was entitled to be paid at the Step 5,072 rate. The foregoing applies,
notwithstanding that the Employer granted her full delegation of authority on March 30,
1990 (Employer, #18--"promo"). She is entitled to have her salary adjusted accordingly,
and to be compensated for any difference between the amount she should have received
and the amount she was paid under lithe new method", subject to the Memorandum of
Agreement dated February 27, 1995 (Union, #2).
Conclusion re Ms. Robertson's grievance:
On the basis of Ms. Robertson's handwritten grievance and her oral evidence, it appears
that her grievance was based on the belief that she was entitled to the "double-jump"
when she reached Step 4, 071 ThIS was the salary treatment of employees who had
commenced in their position at the minimum in the 071 range, and had received the Step
1 to 4 increments at the specified time intervals m the SASS over a period of 3 years, in
the absence of any performance problems. They received a double jump from the Step 4,
071 payrate to the Step 5, 071 rate and were advanced or "promoted" to Step 4,072,
which has the same payrate as Step 5, 071 Under the pre-1990 system, I conclude, m
the absence of clearer eVIdence that the employer as a matter of general practice moved
VR Counsellors from 071 and 072 before they had completed three years as a VR
Counsellor 2, that although Ms. Robertson may have felt she was carry 109 out the full
duties of a VR Caseworker 1 on October 17, 1990, she would not have been entitled to
move from the 071 Salary Grade to the 072 Grade until she was In her position for three
r -
--
_. "-- ---
~---
-~ -
'i' 58
years i.e. until October 27, 1992. The eVIdence establIshed that the employer vIewed her
to have been entitled to full delegation of authority on Apr~128, 1992, and, as she was
already being paid at Step 5,071, gave her a 5% "promotional increase" in accordance
with the note" ** " below the SASS, and considered her "promoted" as of that date from
Step 5, 071 to between Steps 4 and 5, 072. If Ms. Robertson is asserting that regardless
of the pay rate on entry intoJ!1e_subject positions, once an employee reaches Step 4, 071,
s/he is entitled to the "double jump", it must be noted that such an interpretation of the
SASS and the notes beneath it would "read out" the possibility of movement to 072 from
Step 5, 071 It is also inconsistent with the practice of a change in Salary Grade on
completion of three years in the position, and reaching the 072 maximum on completion
of 4 1/2 years. If Ms. Robertson had been "promoted" on October 26, 1990 from Step 4,
071 after one year in the position, she would have received the Step 5, 071 pay rate and
have been moved to Step 4, 072, and eighteen months later, on April 26, 1992, barring
performance problems, would have reached the Step 5, 072 maximum. Thus having
started in the pOSItion on October 27, 1989 at Step 3, 071, she would have reached the
Step 5, 072 maximum on April 26, 1992,21/2 years later The evidence did not clearly
establish that the employer's pre-1990 practice was to promote employees in VR
Counsellor positions in its discretion, and although this may have occurred in some cases,
the evidence did not establish that Ms. Robertson would have been entitled to be moved
to Salary Grade 072 under the employer's pre-1990 practices when she reached Step 4,
071 Ms. Robertson's grievance must therefore be dismissed.
Conclusion re Recovery of Overpayments.
The issue of the recovery of overpayments was considered in Re Arnprior (Town) and
I.U.O.E.. Loc 793 (1991), 22 L.A.C. (4th) 80 (Bendel). In that case, the grievor alleged a
violation of the collectIve agreement by the employer's action m deducting money from
his pay to recover an overpayment. The arbitrator concluded that there was no provision
in the collective agreement which had been violated, that an arbitratQr only has jurisdic-
tion to consider and apply the Employment Standards Act where there is an inconsisten~
cy between that Act and the collective agreement, and that the grievor's remedy, if he
chose to pursue one, was to be found in another forum. The arbItrator in Re St. Joseph's
Hospital. London and London & DIstrict Service Workers' Union. Local 220 (1985), 20
L.A.C. (3d) 390 (Kates) took the view that he had jurisdIction to rely on the Act to
resolve a conflict between an agreement and employment standard, although the collec-
tive agreement was silent on the matter Where the employer had used an incorrect
-- ~-~--
--
-.
T" 59
divIsor in calculating bi-weekly payments which were slIghtly higher than required under
the collective agreement, and deducted an overpayment of $102.82 from the grievor's
salary cheque, the grievance was dismissed on the basis that the Employment Standards
Act does not prohibit the "recapture of an overpayment caused by a clerical error ~o that
nothwithstanding the recapture the affected employee receives his/her full salary for the-
year in question" Re Northern College of Applied Arts and Technology and O.P.S.E.U.
(1991) 21 L.A.C. (4th) 82 (Burkett). Where the employer voluntarily paid for unpaid
breaks for approximately 6 months after the Memorandum of Settlement was signed (in
which the parties agreed formerly paid breaks would thereafter be unpaid) and until the
collective agreement was signed, and thereafter deducted the overpayments from pay-
cheques In amounts of about $25.00 per cheque, on the basis that the signed agreement
applied retroactively, the arbitrator specifically directed the employer "to cease from
deducting monies from wages owmg employees to recover alleged overpayments" for the
period of voluntary overpayments and to repay the money so deducted. Re Cancoil
Thermal Corp. and U.F.C.w.. Lac 175 (1996), 59 L.AC. (4th) 213 (Starkman) at p. 219
In that case, the arbitrator concluded that the following provisions of the Employment
Standards Act. R.S.O 1990, c. E.14 prohibiting "deductions from wages except in certain
specified circumstancesll, determined the matter'
7(1) An employer shall pay to an employee, in cash or by cheque, all
wages to which an employee is entitled under
(a) an employment standard, or
(b) a right, benefit, term or condition of employment under a
contract of employment, oral or written, express or implied,
that prevails over an employment standard.
(3) All wages due and owing to an employee shall be paid by an
employer on the regular pay day of the employee as establIshed by the practIce of
the employer
8. Except as permitted by the regulations, no employer shall claim a
set-off against wages, make a claIm against wages forlIqUldated or unlIquidated
damages or retain, cause to be returned to the employer, or accept, directly or
mdIrectly any wages payable to an employee. r
R.R.O 1990, Regulation 325 proVIdes.
__ 14(1) DespIte sectIon 8 of the Act, an employer may set off against,
deduct from, claim or make a claIm against or retain or accept the wages of an
employee where,
(a) a statute so provides,
--.-
--
~--
.~
Ii' 60
(b) an order or judgment of a court so requires, or
(c) subject to subsection (2), a written authorization of the
employee so permits or directs,
Thus, there appears to be some controversy within the arbitral jurisprudence with respect
to whether recovery of overpayments in the context of a collective agreement is
I-
prohibited:by the provisions of the Employment Standards Act, for the reasons noted
above. In any event, as the employer has not made any deductions to recover any
----')
overpayment, a determination as to whether the Act applies to prohibit such deduction(s)
is not required.
The adverse impact on the salaries of some of the Vocational Rehabilitation Caseworkers, I
SocIal Rehabilitation Counsellors and Placement Advisors was the result of inadvertence I
m the employer's implementation of the Vocational Rehabilitation Strategy and "full I
delegation of authority" criterion, and the attachment of that criterion and its timing to
movement between Salary Grades 071 and 072. The evidence was that the employer's I
I
reasonable intention in implementing this program was to provide a finanCIal and status I
incentive to incumbents of those positions to acquire the skills and knowledge necessary I
to be given full delegation of authority at the earliest possible date. As a result, the
beneficial impact on the salaries of some of the incumbents in those occupational
groupings was planned and intended. It did not arise as a result of a clerical error
The Union challenged the compliance of the Vocational Rehabilitation Strategy and the
"full delegation of authority" criterion for movement between Salary Grades with the
I
requirements of the collective agreement in 1991 (Employer #7). It appears from the I
correspondence that neither party specified to the other the precise manner in which the
Strategy was adversely Impacting upon the time certam employees would reqUIre to reach
the Step 5, 072 maximum until 1993, and the Group Grievance was commenced on June
16, 1993 Thus it took a substantial period of time for the Impact of the strategy on
salaries, both negative and pOSItIve, to become apparent to both parties. During that
penod and subsequently, some of the employees who were granted "full delegatIon of
authority" earlier than others, and whose salanes were improved as a result, and who
.were not "held back" from achIeving the Step 5, 072 maXImum within 4 1/2 years
(barring performance problems) quite naturally relIed upon the status and pay rates
accorded them, through no fault of their own. It is possible to characterize the recovery
of overpayments in this case as ensuring that the employees receive or "net out" only the
amounts to WhICh they we!e entItled under the terms of the collectIve agreement as they
--- ---- ~
)
~ 61
1:,
have been interpreted in this decision. However, to do so would inevitably result in
conflict and resentment between some members of the bargaining unit. This is not in the
interest of either party I conclude that in all these circurnstance~, it would: be unfair to
require the employees who were lead to believe they were entitled to the change in Salary
Grade and pay rates to return the "overpayments" and apy concomitant benefits to the
Employer ----
I will remain seised with respect to matters arising from the implementation of this
decision.
\
Dated at Toronto, Ontario this 10th day of June, 1997
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(
Appendix A
,~
~ Collective Agreement Between WCB & CUPE, Local 1750
SCHEDULE "A"
SENIOR ADMINISTRATIVE SALARY SCALE
Effective October 1. 1991
-c S!Q.l S1el2.2 ~ ~ ~
Salary Further Further Further Further
~ Minimum 6 Months 6 Months I Year l.Yw: **18 Months
075 841.25 893.00 918.87 965.47 1014.66 1087.12
(928.27) (985.38) (1013.92) (1065.35) (1119.63) (1199.59)
074 786.87 836.03 861.96 905.94 952.55 1014.66
(868.27) (922.51) (951.14) (999.66) (1051.09) (1119.63)
073 735.14 781.67 807.58 848.99 893.00 952.55
(811.19) (862.53) (891.12) (936.82) (985.38) (1051.09)
072 685.91 729.95 753.23 792.06 836;03 893.00
(756.86) (805.45) (831.15) (874.00) (922.51) (985.38)
071 641.92 680.76 701.45 740.27 781.67 836.03
(708.32) (751.19) (774.00) (816.85) (862.53) (922.51)
070 603.08 636.73 657.46 693.69 729.95 781.67
: (665.47) (702.61) (725.47) (765.45) (805.45) (862.53)
I
! 070 503.15 532.57 564.28*
I
(555.20) (587.67) (622.65)
(Includes Salary Adjustment for irregular hours under ArtIcle 8 09(a))
1 The anmversary date is based on the date the employee commenced on the current
Job. This may be either the date of hire, or the date of a subsequent transfer
(
2. The tune periods set out at the top of the columns are reflectIons of the
anniversary date set out m (1).
Notwithstanding paragraph one, where an employee is transferred to a new
position in the same salary -grade, the anniversary date will not be changed.
3 An employee who is promoted will have hIs salary adjusted to the next step he
would have achieved had he not been promoted, and hIs future salary progression
will thereafter be governed by the tune interval for the next lngher amount in his
new salary grade. In the event that the employee is already at the maxunum for
that Salary Grade, he will have his salary adjusted to one time interval less on the
higher salary grade.
This is subject to the employee being p31d a salary rate no less than the mmimum
rate for the new salary grade.
Page 76
ir 'Collective Agreement Between WCB & CUPE, Local 1750
:~
*Thereafter progress through the top lIne of Salary Grade 070
** An employee promoted from tlus step will receIve a 5% salary adjustment if the
promotion is only 1 Salary Grade. If the promotion is more than one Salary
Grade, the employee will be paId one Salary Grade higher in the 18 month step
i
SCHEDULE "A"
CLASSIFICATIONS IN THE
SENIOR ADMINISTRATIVE SALARY SCALE
Salary
.Qr&k
070 AudioNisual Technician
AudioNisual Technical AsSIstant
Auditor
AudItor Collections
Clanns Are~ Counsellor
Claims Counsellor
Claims Counsellor, Toronto Clauns Info. Centre
ClassIfication Investigator
Control Specialist
Ethmc Services SpecIalIst
Ethnic Services Specialist Claims
Expenence Ratmg Analyst
Field Auditor
General Counsellor
General Ledger Control SpecIalist
Health Care Benefits Counselor
Hospital Records Courier
Interpreter Translator
Investment Control Specialist --
MedIcal Statistics Coder Analyst
ProofReader
Proof Reader/Editor
Psychometrist 3
RegIonal Information Accounts Maintenance Officer
Research AsSIstant Occupational Disease
Senior Accident Cost Specialist
Semor Revenue Services Representative
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