The URL can be used to link to this page

Home My WebLink About1997-0410.GroupGrievance.00-07-10 Decision o NTARW EMPU) YES DE LA COURONNE CROW"! EMPLOYEES DE L "()NTARW GRIEVANCE COMMISSION DE . . SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE, (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILElTELECOPIE. (416) 326-1396 GSB # 0410/97 0411/97 701/96 0080/97 2131/96 OPSEU # 97D665 97D666 96A665 96A431 97 A14 7 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Emplovees Umon (Group Gnevance, Clapperton et 31) GIievor - and - The Crown m RIght of Ontano (Mimsm of the SolICItor General and CorrecTIonal ServIces) Employer BEFORE Ken Petrvshen Vice ChaIr FOR THE RIchard BlaIr GRIEVOR Counsel, R, der Wnght BlaIr & Do, Ie Bamsters & SolICItors FOR THE Len M~ EMPLOYER Counsel, Legal SerVIces Branch Management Board Secretanat HEARING F ebruan 10 and April 11 2000 2 DECISION In a decIsIOn dated March 12, 1999 the GSB concluded that the Employer contravened ArtIcle 31 7 1 of the CollectIve Agreement. ThIS provIsIOn provIdes for an In lIeu payment for benefits of an amount equal to 2% of the basIc hourly rate for all hours worked, exclusIve of overtIme, for "all full-tIme unclassIfied employees" In essence, I decIded that the provIsIOn reqUIred the Employer to pay the 2% benefit to unclassIfied employees who work full-tIme hours m a week (wIthout countmg the hours for whIch employees were entItled to an overtIme premIUm) once they completed any four dIStInCt full-tIme weeks of work. Without detaIlIng theIr posItIOns, the Umon had argued for a broader InterpretatIOn of ArtIcle 31 7 1 and the Employer had argued for a narrower one The effect of my mterpretatIOn of the provIsIOn was that more unclassIfied employees were entItled to receIve the 2% benefit. The Employer recogmzes and the Umon agrees that, subsequent to March 12, 1999 the Employer IS oblIged to pay the 2% benefit to unclassIfied employees accordIng to the InterpretatIOn contamed m the March 12, 1999 decIsIOn. However the partIes dIsagree wIth respect to the Employer's oblIgatIOns pnor to March 12, 1999 The Umon takes the posItIOn that the retroactIve payment of the gnevances should not be lImIted to the 30 days pnor to the dates the gnevances were filed. The Umon also claIms that non- gnevors should be compensated for a penod of tIme pnor to March 12, 1999 The Employer takes the posItIOn that non-gnevors are not entItled to any retroactIve payment and that gnevors are only entItled to be paId for a penod startIng 30 days pnor to the date theIr gnevances were filed. 3 The facts relevant to these remedIal Issues can be summanzed as follows ArtI cl e 31 7 lIS a new provIsIOn In the 1994-1998 CollectIve Agreement and became effectIve upon ratIficatIOn on March 31 1996 The first tIme an Issue was raIsed about the payment of the 2% benefit IS when Ms L Morrowan unclassIfied employee at the WhItby JaIl, wrote a note dated May 9 1996 to a payroll clerk at the JaIl whIch asserted that she had not yet receIved the 2% benefit. At a MERC meetIng on June 19 1996 Mr Barry Scanlon IndIcated that the Umon would refer the 2% benefit Issue to the CERC On July 22, 1996 Ms Morrow filed the first gnevance allegIng that the Employer had faIled to pay the 2% benefit. Mr Clapperton, another employee at the WhItby JaIl, filed an IndIVIdual gnevance to the same effect on August 2, 1996 Between October 9 1996 and March 25 1997 four group gnevances were filed on behalf of 66 gnevors claImIng a vIOlatIOn of ArtIcle 31 7 1 On Apnl17 1997 the Umon filed the folloWIng gnevance The Umon grIeves that the Employer has faIled to Implement ArtIcle 31 7 1 of the collectIve agreement as It applIes to unclassIfied employees at the Stratford JaIl SETTLEMENT DESIRED That the Employer apply ArtIcle 31 7 1 of the collectIve agreement to all unclassIfied employees of Stratford JaIl wIth Interest. I do not propose to set out the submIssIOns of counsel In detaIl To a large extent, the Umon based ItS posItIOn that non-gnevors are entItled to a retroactIve payment on the Umon gnevance dated Apnl17 1997 In counsel's submIssIOn, the GSB can expand the remedy requested m the gnevance so that all unclassIfied employees entItled to a remedy can be covered by the Umon grIevance The Umon also asserts that the Employer gIven 4 the earlIer gnevances, was well aware that thIS was an Issue of general applIcatIOn for all unclassIfied employees On the Issue of retroactIve payment, the Umon claIms that It IS appropnate In these CIrcumstances to start the payment for all unclassIfied employees, and certaInly for those employees who gneved, from the tIme the Employer was put on notIce that there was an Issue relatIng to ItS mterpretatIOn of ArtIcle 31 7 1 Whether that starts wIth Ms Morrow's note dated May 9 1996 or at a latter tIme, the Umon submIts that retroactIve payment should not be lImIted to the usual 30-day penod before the filIng of the gnevances In addressIng the Issue of whether non-gnevors are entItled to compensatIOn for a penod of tIme pnor to March 12, 1999 I commence wIth the premIse that the GSB essentIally obtams ItS JunsdIctIOn from the provIsIOns of the relevant collectIve agreement and from the gnevances before It. In thIS case, the GSB has before It two IndIVIdual gnevances, four group gnevances and the Umon gnevance dated Apnl 17 1996 From the wordIng of the Umon gnevance, I can only conclude that the Umon Intended to gneve only on behalf of the unclassIfied employees at the Stratford JaIl and that It mtended only to claIm relIef for those employees If I were to expand the scope of the Umon gnevance to cover non-gnevors outsIde of the Stratford JaIl, I would be exceedIng my JunsdIctIOn. I do not have a Umon gnevance before me whIch would apply to unclassIfied employees who work In JaIls other than the Stratford JaIl The general rule IS that all employees wIll benefit from a decIsIOn In the Umon's favour from the date of the decIsIOn and any retroactIve relIef wIll be awarded only to employees who are covered by gnevances There IS no reason m thIS case for departmg from the general 5 approach. Accordmgly It IS my conclusIOn that the unclassIfied employees who are entItled to compensatIOn prIor to March 12, 1999 assumIng they meet the reqUIrements of ArtIcle 31 7 1 are those who filed the IndIVIdual gnevances, those who are covered by the group grIevances and the employees at the Stratford JaIl who are covered by the Umon gnevance I was referred to a number of GSB decIsIOns whIch addressed the Issue of retroactIve payment In cIrcumstances where the vIOlatIOn IS of a contInumg nature These cases IndIcate that retroactIvIty wIll normally be lImIted to the penod of tIme wIthm whIch It was permIssible for a gnevor to file a grIevance Under thIS CollectIve Agreement that perIod IS 30 days pnor to the day the gnevance IS filed. The GSB has recognIzed some lImIted exceptIOns to the usual rule Generally these exceptIOns arIse In CIrcumstances where It would be meqUItable for the Employer to rely on the usual rule In my VIew the CIrcumstances here do not warrant an exceptIOn to the usual rule There IS no eVIdence before me to support the conclusIOn that the Employer Improperly Influenced employees to affect or delay the filIng of gnevances There are no CIrcumstances present from whIch one could conclude that It would be IneqUItable for the Employer to rely on the usual rule Therefore, the unclassIfied employees who are covered by the grIevances and who are entItled to compensatIOn, should receIve compensatIOn startIng from a perIod of tIme 30 days before the filIng of the relevant gnevances 6 I wIll contmue to retaIn JunsdIctIOn In order to deal any further remedial Issues whIch may anse between the partIes In connectIOn wIth thIS matter Dated at Toronto thIS 10th day of July 2000 " :1 Ken Petryshen, Vice-ChaIr