HomeMy WebLinkAboutEmondson 17-06-22
IN THE MATTER OF AN ARBITRATION UNDER THE COLLEGES COLLECTIVE
BARGAINING ACT, 2008
~ BETWEEN ~
GEORGE BROWN COLLEGE OF APPLIED ARTS AND TECHNOLOGY
(“EMPLOYER or COLLEGE”)
~ AND ~
THE ONTARIO PUBLIC SERVICE EMPLOYEES UNION
(LOCAL 556)
(“UNION”)
AND IN THE MATTER OF THE GRIEVANCE OF JILL EDMONDSON
Deborah Leighton, Sole Arbitrator
APPEARANCES
For the Employer: Carolyn Kay, Hicks Morley
For the Union: Lesley Gilchrist, OPSEU
Final written submission received February 28, 2017
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Decision
[1] The grievor was hired on August 20, 2007 and is a full-time professor at George Brown
College. A calculation was done at that time in accord with the provisions of the
collective agreement, and determined that the appropriate step for her on the grid was
step nine. A male colleague was also hired at the same time. In March 2013, the grievor
learned that her male colleague was on “the sunshine list,” the list of public employees
with salaries over a hundred thousand dollars, published pursuant to the Public Sector
Salary Disclosure Act, 1996, S.O. 1996, c. 1, Sched. A. The grievor raised the issue of
why her pay was significantly lower than her colleague’s, with the employer. Having
reviewed the process, Human Resources advised the grievor that the initial step
placements for both her male colleague and herself were appropriate. The grievor made
no further inquiry about the issue until May 27, 2015. The union filed a grievance on her
behalf on July 27, 2015. The parties have agreed that the grievance raises two allegations:
1) that the grievor’s initial step placement was incorrect, and 2) that the grievor’s initial
step placement was discriminatory contrary to the Ontario Human Rights Code, R.S.O.
1990, c. H.19, given her male colleague’s higher salary.
[2] The college has raised two preliminary objections to the board’s jurisdiction. The college
submits that the grievance should be to dismissed for the following reasons:
1) the issues raised by the grievance are ones that were abandoned
by the grievor and the union, and therefore they should not be
permitted to pursue the same issue and /or
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2) the grievance is untimely in that it relates to the initial salary
calculation done by the college in August 2007, and explained
in April 2013 and therefore this board ought not exercise its
discretion to relieve against that delay.
[3] The union takes the position that Article 32.03E of the collective agreement specifically
provides that section 14(16) of the Colleges Collective Bargaining Act shall not apply.
Thus, it is the position of the union that there is no jurisdiction to waive or extend time
limits if a grievance is late. However, the union submits that this is a continuing
grievance and the grievor cannot be found to have abandoned her grievance in 2013,
because while she raised the issue of her pay, she never filed a formal grievance. The
college disagrees that the grievance is continuing and submits that the assessment of her
credentials when she was first hired only leads to continuing consequences, which are not
available since the grievance is out of time.
[4] This matter proceeded by way of written submissions and oral argument on February 9,
2017. The final submission was received February 28, 2017. The parties asked for a
“bottom line” decision.
[5] It is the union’s allegation that the grievor’s salary calculation was fundamentally flawed
at her time of hire and that this flaw has repeated itself over the course of years
amounting to a considerable loss to the grievor. The breach of the collective agreement
occurs every time the grievor is paid, therefore it is a continuing grievance. The same
issue was decided in Seneca College and OPSEU, 1983 (Delisle). The grievor in this case
complained that when he was hired in 1976, the college incorrectly determined his
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starting salary. He alleged that the college failed to credit his previous experience
adequately and therefore breached the collective agreement.
[6] The college took the position that the board in Seneca had no jurisdiction to hear the
grievance, filed in 1982 because it was not filed within the time limits. The time limits for
filing a grievance are mandatory under the collective agreement. However, counsel for
the union maintained that the grievance was a continuing grievance:
…the grievance is a continuing one and is arbitrable under the
existing agreement; every pay cheque issued, flowing from the
inaccurate characterization of the employee, is a repetitive of
recurring breach of the agreement. The grievor is not seeking
damages back to his initial hiring but rather limits his claim to a
period of 27 days prior to the filing of the grievance on
November 30, 1982.
The board in Seneca agreed with the union, commenting on a decision of Arbitrator
Brunner in Algonquin College and OPSEU (October 1983) that if:
…the grievor’s status was incorrectly identified in November
1976, the college engaged in repetitive breaches of the various
agreements in failing to pay the appropriate rate. Counsel for the
college attempted to distinguish this award as a case where the
employee’s status was determined by the effluxion of time
whereas here the college had performed a distinct, positive act.
We see no worthwhile distinction flowing from the fact that in
one case the college omitted to act and in the other acted
inappropriately. (emphasis added)
This is the same issue that I must decide. The question before me is whether the grievor’s
complaint is a continuing one. The college has argued here, as the employer in Seneca,
that the distinct positive act of placing the grievor on the pay grid is not a continuing
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grievance; it merely has continuing consequences, relying primarily on British Columbia
v. BCNU (1982), LAC (3d) 404 (Getz).
[7] Having carefully considered the submissions and case law put before me and with all due
respect, I cannot agree. I am persuaded that the grievance before me is a continuing
grievance. This is consistent with the precedent set in Seneca and in the practice of the
parties over many years to treat pay grid grievances as continuing ones, with an
appropriate limit on the scope of the remedy.
[8] There have been many cases since Seneca, where the parties have treated pay grid
grievances as continuing. As recently as 2016 in Humber College and 0PSEU, Local 562
(Lung) 125 C.L.A.S. 339, the issue of whether the grievor had been correctly evaluated
for placement and progression on the grid was considered. Humber College did not argue
that the grievance was out of time. The parties treated the grievance as continuing. The
board commented that the college reaped the benefit of the grievor’s work without paying
the grievor properly under the provisions of the collective agreement.
[9] It is important to note that no college sector decision was put before me that disagreed
with the result in Seneca. As Arbitrator Swan noted in Fanshawe College and OPSEU
(1993) Ledwell, “as a matter of good collective bargaining policy, we should not seek to
change this interpretation between the parties, unless we are satisfied that the earlier
awards were manifestly wrong.” I am not prepared to find that Seneca was manifestly
wrong. I think it is correct.
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[10] Further, this is consistent with what Arbitrator Herlich has suggested is the Ontario
approach to pay grid grievances. In Dufferin-Peel Catholic District School Board and
OECTA (1998) 77 LAC (4th) 69, he commented on the line of cases in Ontario on
continuing grievances compared to the BCNU case as follows:
I prefer the approach taken by the Ontario arbitrators. Indeed, it
appears to me that the claim of repeated and ongoing payments
which are alleged to fall short of the collective agreement
requirements may clearly give rise to an ongoing grievance.
Arbitrator Herlich referred to Religious Hospitallers of St. Joseph of Hotel Dieu of
Kingston v. OPSEU, Local 542, (1992), 29 LAC (3d) 323 where Arbitrator Stewart also
considered the BCNU case at para. 15:
To the extent that the decision in Province of British Columbia
may be said to support the proposition that the existence of a
discrete decision compels the conclusion that there has been a
discrete violation of the collective agreement we cannot agree
with this proposition. In determining whether or not the
grievance is properly characterized as a continuing grievance it
is necessary to look to whether it is alleged that the bargain
between the parties continues to be violated. In this instance,
the nature of the grievance in its simplest form is that the
employer has agreed to compensate Ms. Spence on the basis of
her years of service and has not complied with that obligation.
If the union’s analysis of the effect of the collective agreement
is correct, notwithstanding that the placement on the grid was a
discrete decision made on one occasion, the employer continues
to have the benefit of Ms. Spence’s experience but it is not
compensating her in recognition of that experience. While the
situation arose as a result of one decision of the employer, the
grievance relates to a continuing violation of the alleged
bargain. The violation claimed occurs at each pay period when
not compensate her for them in accordance with the collective
agreement. In our view, this grievance raises an allegation of a
continuing violation of the ongoing bargain between the parties.
(emphasis added)
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I agree with this reasoning. Ultimately this decision is about fairness. If in this case the
grievor’s credentials were not properly assessed in 2007, then with each pay cheque the
college continues to pay her less than what she deserves in breach of the collective
agreement. Her grievance is properly characterized as continuing and should be heard on
the merits.
[10] Finally, I should comment that I have concluded that the grievor did not abandon a
grievance in 2013. The purpose of the rule against allowing an abandoned grievance to
be revived is conveniently stated in Chapter 2:23230 of Canadian Labour Arbitration
included in the college’s authorities:
The grievance procedure is designed to provide members of the
bargaining unit and a union with method of orderly processing
their respective grievances. In order to avoid the expense
inherent in the arbitration process the procedure provides for
bona fide efforts to be made by both the grievor and
management to settle the dispute at various stages and at
various levels. It follows, therefore that if the grievor and/or the
union actually or impliedly accept the decision of management
they should not be allowed to have second thoughts on the
matter and reprocess essentially the same grievance at a later
date. If this were to be allowed, management would never know
whether, in fact its decision had been accepted by the individual
grievor or the union representing him, and management would
be plagued and harassed and what would be a plain abuse of the
grievance procedure. However, a different approach may be
taken where the interpretation of the provision of the collective
agreement is an issue or the alleged violation is of a continuing
nature. Here the finality may give way to the countervailing
desideratum that the actual grievance be determined. At the
very least in such circumstances, arbitrators may insist that the
prior withdrawal, settlement, or abandonment was understood
and clearly intended by the parties to be of general effect and
was not limited to the specific instance. (emphasis added)
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This rule is an important protection to prevent abuse of the grievance procedure. But it
would be a mistake, particularly for a continuing grievance, to find that by raising the
issue and getting a response from Human Resources, the grievor lost her right to grieve
later in 2015. There is nothing in the facts to support a finding of abandonment. There is
nothing to suggest that the matter was resolved. There is no withdrawal or minutes of
settlement.
[11] For the reasons noted above, I hereby dismiss the employer’s motion and find that this
grievance is a continuing grievance and was not abandoned in 2013. A hearing is to be
set in order for the matter to be heard and considered on its merits.
Dated at Toronto this 22nd day of June, 2017
Deborah Leighton
Deborah Leighton, Arbitrator