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HomeMy WebLinkAbout1999-1384.Mehta et al.01-09-14 Decision ~M~ om~o EA1PLOYES DE LA COURONNE ~WL iii~~~i~T DE L 'ONTARIO COMMISSION DE REGLEMENT "IIIl__1I'" BOARD DES GRIEFS Ontario 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONEITELEPHONE. (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILE/TELECOPIE. (416) 326-1396 GSB#1384/99,0384/01 UNION #99F021, 01U050 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between. OntarIO PublIc ServIce Employees' Umon Grievor (l\1ehta/Umon Gnevance) - and - The Crown In RIght of OntarIO (l\1mIstry of Fmance) Employer Before. Owen V Gray Vice-Chair For the Grievor- Don Martm Gnevance Officer OPSEU For the Employer- Karm Rasmussen Counsel Legal ServIces Branch Management Board Secretanat Hearing. February 8 and September 7, 2001 2 DECISION [1] An employee's "anmversary date" for pay admmIstratIOn purposes IS the pomt m the year as of whIch a publIc servant who IS not at the maXImum of the salary range for hIs/her posItIOn WIll ordmanly receIve a "ment" mcrease to the next step m that salary range Before Hemant Mehta was promoted from Cor poratIOns Tax AudItor to Semor CorporatIOns Tax AudItor on November 2, 1998, hIS anmversary date was m May Followmg that promotIOn, the employer changed hIS anmversary date to November ThIs delayed by 6 months the annual date as of whIch he would be entItled to mcreases thereafter Mr Mehta gneved that that adJustment was contrary to ArtIcles 7 12 and 7 1 3 of the collectIve agreement then m effect, under whIch he asserts he was entItled to keep the an mversary date that he had had before he was promoted [2] The hearmg ofMr Mehta's gnevance began on February 8,2001 As a re- sult of events that occurred that day, the umon filed a polIcy gnevance on May 31, 2001, allegmg that "the Employer's polIcy 'Upon PromotIOn' as set out m the Manual of AdmmIstratIOn vIOlates ArtIcles 7 12 and 7 1 3 of the CollectIve Agreement" On agreement of the partIes, these two gnevances were heard to- gether The Parties' Initial Positions [3] ArtIcles 7 12 and 7 1 3 of the collectIve agreement m effect at the tIme of Mr Mehta's promotIOn provIded as follows 712 An employee who IS promoted shall receIVe that rate of pay III the salary range of the new classIficatIOn whIch IS the next hIgher to hIs or her present rate of pay except that where such a change results III an lllcrease of less than three per cent ('3%) he or she shall receIVe the next hIgher salary rate agalll, whIch amount wIll be consIdered as a one-step lllcrease 3 a promotIOnal mcrease shall not result m the employee's new sal ary rate exceedmg the maXImum of the new salary range except where permItted by salary note 7 1 '3 Where an employee (a) at the maXImum rate of a salary range IS promoted, a new anm versary date IS estabhshed based upon the date of promotIOn, (b) at a rate less than the maXImum m the salary range IS promoted and receIVes a promotIOnal mcrease greater than a one-step mcrease a new anmversary date based on the date of promotIOn IS estabhshed, of one step or less the eXIstmg anmversary date IS retamed. In ArtIcles 7 12 and 7 1 3 of the current collectIve agreement, whIch was m ef fect at the tIme the umon filed Its polIcy gnevance, the two bullet pomts m the former ArtIcle 7 12 have been labelled "(a)" and "(b)", and the two bullet pomts m paragraph (b) of the former ArtIcle 7 1 3 have been numbered "(1)" and "(2)" ArtIcles 7 12 and 7 1 3 of the current collectIve agreement are otherwIse IdentI cal to the correspondmgly numbered artIcles of the prevIOUS collectIve agree- ment [4] When the hearmg of Mr Mehta's gnevance began on February 8, 2001, the partIes had agreed on the followmg facts Agreed Statement of Facts m the Gnevance of Hemant Mehta, GSB #1'384/99 February 8 2001 1 At all relevant tImes Mr Mehta was a member of OPSEU covered by the CollectIve Agreements sIgned on August '30 1996 between Management Board of Cabmet and the Ontano Pubhc ServIce Employees Umon. 2. Mr Mehta began wIth the Mimstry of Fmance as a CorporatIOns Tax Auchtor m the classIficatIOn of FmancIaI Officer 4 on May 5 1997 '3 At hIs anmversary m May 1998 Mr Mehta advanced to the '3rd step of the FmancIaI Officer 4 wage gnd wIth pay of $1022.11 per week. 4. Mr Mehta was successful m a Job competItIOn, and on November 2 1998 he was promoted to the posItIon of Semor CorporatIOns Tax Auchtor m the classIficatIOn of FmancIaI Officer 5 5 At the tIme of Mr Mehta's promotIOn from F04 to F05 the salary rate at the next step of hIS old classIficatIOn (F04) was $1069 08 per week. 6 Compared wIth hIs posItIon on the FmancIaI Officer 4 wage gnd, the next hIgher rate of pay m the FmancIaI Officer 5 wage gnd at that tIme oc 4 curred at step 2 wIth a pay of $1051 19 per week, an mcrease of less than '3% 7 In accordance wIth artIcle 7 12 of the CollectIve Agreement Mr Mehta began m hIS new posItIon as a FmancIaI Officer 5 at step '3 wIth a pay of $110564. 8 When he began work m the FmancIaI Officer 5 posItIon Mr Mehta's an mversary date was changed from May to November [5] Based on these facts, to whIch It had nothmg to add, the umon's posItIOn was (and stIll IS) that smce the gnevor was not at the maXImum rate of the sal ary range for hIS pre-promotIOn posItIOn, the promotIOn's effect on hIS anmver sary date was governed by paragraph (b) of ArtIcle 7 1 3 The second bullet pomt of that paragraph provIdes that a promoted employee who was not at the salary maXImum for hIS pre-promotIOn posItIOn retams hIS pre-promotIOn anmversary date If hIS promotIOnal mcrease IS "of one step or less" The gnevor's promotIOnal mcrease was the result of applymg the prOVISIOn m the first bullet pomt under ArtIcle 7 12 (now ArtIcle 7 12(a)) That part of that artIcle expressly states that the result of ItS applIcatIOn "WIll be consIdered as a one-step mcrease" On that basIs, the umon says that the gnevor's promotIOnal mcrease was "of one step or less" for purposes of paragraph (b) of ArtIcle 7 1 3 and, accordmgly, hIS anmver sary date should not have been adJusted [6] The first bullet pomt of paragraph (b) of ArtIcle 7 1 3 provIdes that a new anmversary date based on the date of promotIOn IS to be establIshed when an employee receIves a promotIOnal mcrease "greater than a one-step mcrease " The employer's posItIOn was and IS that It relIed on the followmg portIOn of ItS former Manual of AdmmlstratIOn, and partIcularly the emphasIzed sentence, to con clude that the gnevor's promotIOnal mcrease was a "greater than a one-step m " crease DefimtIOn PromotIOn occurs when the mcumbent of a classIfied posItIon IS assIgned to another posItIon m a class wIth a hIgher maXImum 'PromotIOn salary than the class of hIS former posItIon. Salary EffectIve January 28 1976 an employee who IS promoted shall Treatment. receIVe that rate of pay m the salary range of the new classIfi catIon whIch Is the next hIgher to hIs present rate of pay ex cept that 5 where such a change results m an mcrease of less than '3% he shall receIVe the next hIgher salary rate agam whIch amount shall be consIdered as a one step mcrease a promotIOnal mcrease shall not result m the employee's new salary rate exceedmg the maXImum of the new salary range except where permItted by salary note. .. Effectwe Apnl1, 1978 a rate of pay, resultU/g from promotwn, wlnch l.S less than the sum of the next lngher rate Ul. the former salary range plus 300 shall be consl.dered a one step l.ncrease. DetermmatIOn Where an employee of Anmversary a) at the maXImum rate of a salary range IS promoted. a new Date. anmversary date IS estabhshed based upon the date of promotIOn, b) at a rate less than the maXImum of a salary range IS pro- moted and he receIVes a promotIOnal mcrease greater than a one step mcrease a new annIVersary date IS estabhshed based upon date of promotIOn of one step or less the eXIstmg anmversary date IS re- tamed. Apart from the emphasIzed sentence, thIS language IS IdentIcal to the language of ArtIcles 7 1 2 and 7 1 3 The employer says that the emphasIzed sentence serves as a defimtIOn of what IS a promotIOnal mcrease "of one step or less" and what IS a "greater than a one step mcrease" for purposes of determmmg the an mversary date under paragraph (b) of ArtIcle 7 1 3 The necessary ImplIcatIOn of the emphasIzed sentence, It argues, IS that a rate of pay, resultmg from promo- tIon, whIch IS greater than or equal to the sum of the next hIgher rate m the former salary range plus 3% reflects a "greater than a one step mcrease" for pur poses of paragraph (b) of ArtIcle 7 1 3 The umon takes the posItIOn that what ever the emphasIzed sentence may mean, It does not appear m the collectIve agreement and does not alter the employer's oblIgatIOns under that collectIve agreement m cases such as Mr Mehta's For ease of reference, the emphasIzed sentence and the defimtIOn that the employer mfers from It WIll hereafter be re- ferred to as "the Manual's 3% test." [7] In order to explam the context for a rulmg made durmg the hearmg of these grIevances on September 6, 2001, It IS necessary to refer to the course these proceedmgs took on February 8,2001 6 The Order For Delivery of Particulars [8] At the hearmg of February 8, 2001, counsel for the employer saId she pro- posed to argue, among other thmgs, that the employer had always applIed the above-quoted prOVISIOns of the Manual of AdmmlstratIOn, that It had done so wIthout complamt by the umon, and that the umon was therefore estopped from allegmg that the collectIve agreement means or reqUIres somethmg mconslstent wIth those prOVISIOns A dIscussIOn ensued As I noted m my order of Febru ary 15, 2001 [6] Employer counsel was asked whether she was seekmg to mtroduce eVI dence beyond what appeared m the agreed statement of fact. The nature of a claIm of estoppel by sIlence was chscussed. Counsel was asked whether she had eVIdence to show for example that prIor to the negotIatIOn of the coHee tIve agreement m effect at the tIme of the promotIOn there had been an occa SIOn or occaSIOns known to the umon when the employer s apphcatIOn of the prOVISIOns of ItS Manual of AdmmIstratIOn had had a result mconsIstent wIth the umon s mterpretatIOn of the predecessors of ArtIcles 7 12 and 7 1 '3 In response counsel for the employer sought an adjournment m order to seek out eVIdence m support of the employer s claIms concernmg ItS past practIce and the effect of that practIce on the correctness or enforceabIhty of the un IOn s mterpretatIOn of ArtIcles 7 1 2 and 7 1 '3 On bemg assured that he would receIVe partIculars of the employer s claIm before the hearmg resumed and that a umon grIevance on thIs Issue could, If the umon chose be Jomed wIth thIs one the umon s representatIve consented to the requested ad Journment. In VIew of what later occurred, I should say somethmg more about the context m whIch thIS dIscussIOn of prevIOUS occaSIOns arose [9] In hIS opemng on February 8, 2001, antIclpatmg to some extent a refer ence by employer counsel to the prOVISIOns of the Manual of AdmmlstratIOn, the umon's representatIve had remarked that he was unaware of any occaSIOn on whIch there had been a change of anmversary date upon promotIOn of an em ployee m a posItIOn SImIlar to Mr Mehta's He added that he had revIewed van ous salary gnds under the collectIve agreement, and had concluded that CIrcum stances m whIch the Manual's 3% test would actually affect an employee ad versely were rare at best, and possibly mIght never have occurred before Mr Mehta's promotIOn. Whether or not thIS assessment was accurate, the umon's representatIve thus made It clear that If the employer relIed on actual or 1m 7 puted knowledge by the umon of the employer's havmg apphed the Manual's 3% test, It would have to prove that. [10] In the dIscussIOn that resulted from employer counsel's request for an ad Journment to search out such proof, the umon representatIve's concern was two- fold. One concern was that he knew well m advance of the next hearmg of any CIrcumstances m whIch the employer alleged It had apphed the Manual's 3% test wIth adverse effect, so that he could mvestIgate those CIrcumstances and prepare to deal wIth them at that next hearmg The other concern was that the effort of mvestIgatmg and argumg an estoppel claIm not be expended solely on an mdI vIdual gnevance wIth no precedent value Those concerns were addressed m the dIscussIOn of dehvery of partIculars and the opportumty to Jom a pohcy gnev ance wIth Mr Mehta's that were reflected m the order of February 15, 2001 [11] Followmg the hearmg of February 8, 2001, my order of February 15, 2001 dIrected the dehvery of partIculars by the partIes on a tImetable they had pro- posed and agreed to at the hearmg That order was m these terms a) The employer shall dehver to the umon wntten partIculars settmg out any allegatIOns of fact (other than facts on whIch the partIes have agreed) on whIch It proposes to rely m thIs matter by the close of busmess Mon day Apnl1G 2001 b) The umon shall dehver to the employer wntten partIculars statmg whIch of the employer s allegatIOns It agrees WIth and whIch of the employer s allegatIOns It dIsagrees wIth and settmg out any allegatIOns of fact on whIch It proposes to rely m response to the employer s allegatIOns by the close of bus mess Monday June 11 2001 The hearmg was adJourned to Thursday, September 6, 2001 [12] Employer counsel faxed partIculars to the umon's representatIve on May 16, 2001, after havmg sought and obtamed the umon's agreement to an ex tensIOn of the deadlme for dehvery The fax recIted the above-quoted prOVISIOns of the Manual of AdmmIstratIOn, and others, at length. It asserted that It had been the practIce of the employer for at least 25 years to calculate anmversary dates m accordance wIth those prOVISIOns It asserted that the Manual had been "avaIlable" to the umon throughout that tIme, and that the relevant prOVISIOns of 8 the collectIve agreement had been unchanged m at least the last four rounds of renegotIatIOn. It repeated the detaIls of Mr Mehta's sItuatIOn, addmg the dollar figures to show that hIS salary ImmedIately after promotIOn was not wIthm the Manual's 3% test for a one step mcrease The faxed partIculars asserted that G It IS the practIce of the employer whIch was followed m thIs case to pro- YIde wntten confirmatIOn to the employee of hIS or her promotIOn. ThIS con firmatIOn adYIses the employee of hIS or her new annIyersary date If the date has been changed. In adchtIOn a promoted employee whose annIyersary date has been changed receIVes the annual ment mcrease on a dIfferent date from the annual ment mcrease date precedmg the promotIOn. UntIl Mr Mehta brought the mstant gneyance the employer IS not aware of any gneyance haYmg been filed m respect of employees whose annIyersary dates were changed upon promotIOn. The faxed partIculars dId not expressly assert, however, that there had been any occaSIOn pnor to Mr Mehta's m whIch the employer had changed the anmver sary date of a promoted employee to whom paragraph (a) of ArtIcle 7 1 3 dId not apply (The unpartIculanzed ImplIcatIOn of thIS paragraph that there had been employees whose anmversary dates had changed upon promotIOn IS conSIstent WIth the employer's havmg applIed paragraph (a) of ArtIcle 7 13m CIrcum stances to whIch It bore applIcatIOn.) The fax contamed no partIculars of any oc cas IOn, pnor to Mr Mehta's, when the employer's applIcatIOn of any part of ItS Manual of AdmmIstratIOn had had a result mconsIstent wIth the umon's mter pretatIOn of ArtIcles 7 1 2 and 7 1 3 or theIr predecessors In the cIrcumstances, the umon's representatIve was entItled to and dId conclude that the employer dId not mtend to rely on any such allegatIOns The Attempt to Introduce Unparticularized Allegations of Fact [13] At the hearmg of September 6, 2001, employer counsel called wItnesses through whom she sought to mtroduce eVIdence of specIfic occaSIOns when an employee's anmversary date had been changed as a result of promotIOn. The un lOn's representatIve obJected to her domg so, m lIght of the order dIrectmg delIv ery of partIculars and the CIrcumstances m whIch the order had been made Em ployer counsel dId not contend that the proposed eVIdence concerned matters 9 whIch could not wIth due dIlIgence have been ascertamed wlthm the tIme for de- lIvery of partIculars Indeed, she saId that durmg that tIme there had been no attempt to locate eVIdence of specIfic occaSIOns when an employee's anmversary date had changed as a result of promotIOn. She stated that the people who had dIrected the mvestIgatIOn (the one that she had m February sought the opportu mty to perform) had only mvestIgated whether there had been any grIevances by the umon complammg of adJustments to anmversary dates, and none had been found [14] Employer counsel suggested that If the umon needed tIme to respond to the eVIdence she mtended to present, there could be a further adJournment for that purpose She saId she had been mvolved m hearmgs m whIch the umon provIded partIculars on the day of the hearmg She acknowledged, however, that those were not occaSIOns m whIch there had been an order for delIvery ofpartIcu lars The umon's representatIve opposed any further delay m resolvmg Mr Me- hta's grIevance and the assocIated polIcy questIOn, notmg that there had already been a lengthy delay Havmg mdlcated that she dId not mtend to argue estoppel by sIlence, employer counsel argued that the eVIdence she proposed to mtroduce was relevant to her past practIce argument and should be admItted notwlth standmg the faIlure to partIcularIze It [15] I refused to admIt any eVIdence concermng specIfic occaSIOns (other than Mr Mehta's) when an employee's anmversary date had changed as a result of promotIOn or suggestmg that such occaSIOns had prevIOusly occurred m CIrcum stances lIke Mr Mehta's or that the Manual's 3% test had prevIOusly been ap plIed to the detrIment of an employee prIor to Mr Mehta's case The order of February 15, 2001 had made It clear that the employer was to provIde m ad vance of the hearmg partIculars of any facts on whIch It mtended to rely, other than those to whIch the partIes had agreed. The employer had provIded no par tIculars of the facts that were the subJect matter of the proposed eVIdence The CIrcumstances that gave rIse to the order of February 15, 2001 left no room for doubt that these were the very sort of facts that the employer was oblIged to par 10 tIcularIze m advance of the hearmg If, after mvestIgatIOn and reflectIOn, It dls covered eVIdence of such facts and determmed to rely on them. [16] The obJect of an order for delIvery of partIculars IS to enable the partIes to know the cases they have to make and meet and prepare to do so m advance of a hearmg ThIs reduces the potentIal for delays that can result from surprIse at hearmg, and promotes efficIent and effectIve use of hearmg tIme It also en hances the prospects of settlement, where any eXIst, by causmg the partIes to fo- cus on the strengths and weaknesses of theIr posItIOns m the lItIgatIOn that IS theIr alternatIve to settlement If a dIspute IS to be resolved by arbItratIOn, there comes a tIme when the factual Issues m dIspute must cease bemg an obscure, elusIve or movmg target. When ordered or agreed upon, the delIvery of partIcu lars IS part of the process of defimng what the partIes' dIspute IS about Once the partIes have delIvered partIculars m accordance wIth an agreement or order that oblIges them to partIcularIze the facts on whIch they rely, a fact not partIcular Ized IS presumptIvely a fact not thereafter m Issue EVIdence concermng a fact not m Issue IS not eVIdence relevant to matters m Issue [17] Unless there IS some good reason to permIt untImely mtroductIOn mto a dIspute of a fresh factual Issue, each party should be held to what It has saId the dIspute IS about It IS m the nature of the labour arbItratIOn process generally, and the processes of the GrIevance Settlement Board m partIcular, that there wIll be cases m whIch there IS good reason to gIve a party leave to mtroduce alle- gatIOns that It had not partIcularIzed earlIer when reqUIred to do so ThIs was a good example of a case m whIch there was no good reason to grant such leave Decision [18] The eVIdentIary hearmg of September 6, 2001 added lIttle of sIgmficance to the agreed facts set out m paragraph [4] of thIS award [19] The employer concedes that on January 7, 1991, Management Board's Human Resources SecretarIat announced that 11 To reflect the changmg tImes the Human Resources Secretanat has devel oped new chrectIves and gUIdelmes to replace the Manual of AdmmIstratIOn, Volume II. Part II of the Manual IS the part that contamed the 3% test on whIch the em ployer relIes here The emphasIs on the word "replace" appears m the ongmal announcement The Human Resources D[rectwes and Gu[dehnes ("the Gwde- lutes") that replaced the Manual do not contam the Manual's 3% test On the subJects of promotIOnal mcreases and "anmversary date/ment mcrease" follow mg promotIOn, the Gu[delmes expressly dIrect that the relevant prOVISIOns of what are now ArtIcles 7 12 and 7 13 be applIed, wIthout elaboratmg on what those prOVISIOns reqUIre [20] The employer's argument for the applIcatIOn of the Manual's 3% test, ar tIculated both through a wItness and m closmg argument, starts wIth the fact that ArtIcle 7 1 3 of the collectIve agreement speaks about promotIOnal mcreases bemg eIther "greater that one step" or "of one step or less" wIthout expressly de- fimng the dIstmctIOn. WIthout such a defimtIOn, paragraph (b) would never bear applIcatIOn, the employer says, and would serve no purpose It argues that the agreement should not be so mterpreted as to have that result That result IS aVOIded by adoptmg the Manual's 3% test as the needed defimtIOn. Employer counsel referred to Wilson, 855/84 (Roberts), m support of the proposItIOn that resort may be had to the Manual of AdmmIstratIOn to fill m a gap of thIS sort m the collectIve agreement [21] The Issue m Wilson was whether what IS now ArtIcle 7 13(a) was breached when the employer assIgned an anmversary date that was the first day of the month followmg the date of promotIOn, m accordance wIth a provIsIOn of the then Manual of AdmmIstratIOn. The umon argued that the words "a new an mversary date IS establIshed based upon the date of promotIOn" should be read as though "based upon" meant "at" It cIted dIctIOnanes m support The Board found, however, that the rule set out m the Manual of AdmmIstratIOn (whIch had not then been replaced by the Gu[delmes) was what the partIes had had m mmd when they had agreed on the "based upon" language 12 WhIle It seems to be the case that ArtIcle 5 2. '3 (a) IS sufficIently ambIguous to permIt the mtroductIOn of extrmslC eVIdence such as chctIOnary defimtIOns It would appear that the most relevant eVIdence of the mtent of the partIes m frammg thIs provIsIOn must be found m the eVIdence of past practIce whIch was led by the Mimstry ThIs eVIdence showed that even before umomzatIOn, the CIVIl ServIce CommISSIOn reqUIred anmversary dates to be estabhshed as the first day of the month followmg promotIOn. Subsequent to umomzatIOn thIs practIce became enshrmed m the Manual of AdmmlstratIOn copIes of whIch are reachly aVaIlable to Management and Umon ahke ThIS practIce was openly and notonously followed throughout the CIVIl ServIce through thousands and thousands of promotIOns over a penod of decades There was no eVIdence to mchcate that m all thIs tIme through countless renegotIatIOns of the CollectIve Agreement the wordmg of ArtIcle 5 2. '3 of the CollectIve Agreement was changed. In the face of thIs It must be concluded that when the current CollectIve Agreement was negotIated, both partIes contemplated that the words "a new anmversary date IS estabhshed based upon the date of promotIOn" referred to the estabhshment of the anmversary date as the first of the month followmg promotIOn. [22] ThIs passage (from pages 5 and 6 of the Wilson decIsIOn) describes the classIc CIrcumstances m whIch "past practIce" eVIdence IS used m the mterpreta tIon of a prOVISIOn of a collectIve agreement - that IS, where the language of the prOVISIOn IS amb[guous and has been applIed repeatedly, consIstently and wIth out obJectIOn by the umon m accordance wIth an open and notorwus practIce, through multIple renegotIatIOns of collectIve agreement m whIch the language m Issue was not changed "NotorIOus", m thIS context, means well known to the un IOn. If the practIce were not notOrIOUS m that sense, one could hardly conclude that the umon had had It m contemplatIOn when agreemg to the collectIve agreement language m Issue [23] The generalIzed assertIOn by the employer that It had a practIce of apply mg the portIOn of ItS Manual of AdmmlstratIOn quoted m paragraph [6] above cannot alone advance ItS posItIOn, even when repeated m those general terms by ItS wItnesses WIth the exceptIOn of the one sentence settmg out what I have been callmg the Manual's 3% test, the language of that portIOn of the Manual IS IdentIcal to the language of the collectIve agreement If the employer never actu ally had occaSIOn to apply that one sentence, eIther at all or m a manner adverse to employee mterests, then a practIce of applymg the Manual would be mdlstm gmshable from a practIce of sImply applymg the collectIve agreement. So the 13 pertment questIOn about past practIce would be whether there was a past prac tIce, as that term was used m Wilson (frequently, openly, notorIOusly), of apply mg the Manual's 3% test. More precIsely, smce the Issue here IS whether the Manual's 3% test can trump the last several words of the first bullet pomt (now paragraph (a)) of ArtIcle 7 12, the pertment questIOn about past practIce would be whether there was a past practIce, as that term was used m Wilson, of apply mg the Manual's 3% test wIth adverse result to an employee whose promotIOnal mcrease was dIctated by the first bullet pomt (now paragraph (a)) of ArtIcle 7 12 [24] There IS no basIs here for a findmg that the employer had ever applIed the Manual's 3% test, eIther at all or wIth adverse result to an employee whose pro- motIOnal mcrease was dIctated by the first bullet pomt (now paragraph (a)) of ArtIcle 7 12, prIor to ItS domg so m Mr Mehta's case or, If had ever done so, that ItS havmg done so was known to the umon. Further, and more Importantly, there IS no ambIgUIty to resolve m the collectIve agreement language applIcable to Mr Mehta's CIrcumstances Past practIce cannot be mvoked to modIfy the meanmg of language that IS neIther patently nor latently ambIguous [25] WhIle the collectIve agreement does not expressly define m general terms how to determme whether a promotIOnal mcrease IS "greater that one step" or "of one step or less" for purposes of paragraph (b) of ArtIcle 7 1 3, It does expressly answer that questIOn for the case m whIch promotIOnal mcrease IS determmed by the first bullet pomt of ArtIcle 7 1 2 The first bullet pomt of ArtIcle 7 1 2 pro- vIdes that answer It says that the promotIOnal mcrease for whIch It provIdes "wIll be consIdered as a one-step mcrease " [26] One cannot make sense of the addItIon of those words to ArtIcle 7 1 2 unless they were mtended to speak to the Issue rmsed by paragraph (b) of ArtIcle 7 1 3 As employer counsel seemed to concede, and as IS m any event the case, there IS no provIsIOn of the collectIve agreement other than paragraph (b) of ArtI cle 7 13 under whIch It would be necessary to consIder whether or not a promo- tIonalIncrease was "a one-step Increase" 14 [27] Employer argues, however, that the closmg words of what IS now para graph (a) of ArtIcle 7 12 should not be treated as determmatIve of the applIca tIon of 7 1 3(b) m cases to whIch ArtIcle 7 1 2(a) applIes because those words ap pear m an artIcle concerned wIth determmmg salary on promotIOn rather than m the artIcle concerned wIth determmmg anmversary date on promotIOn. ThIs approach to mterpretatIOn cannot advance the employer's posItIOn. The Manual's 3% test, the one the employer says should be determmatIve, appears m the for mer Manual under the headmg "Salary Treatment" and not under the headmg "DetermmatIOn of Anmversary Date" On the employer's argument, It lIkewIse should not be treated as addressmg anmversary date determmatIOn m an au thontatIve way UnlIke the former Manual, moreover, the collectIve agreement does not categonze ArtIcles 7 1 2 and 7 1 3 by assIgmng them dIfferent headmgs or tItles The first bullet pomt of ArtIcle 7 1 2 clearly speaks both to salary ad mmIstratIOn and to a matter of sIgmficance to the determmatIOn of anmversary date on promotIOn. There IS no reason to mterpret It as though It was only m tended to speak to one of those matters and not the other [28] I find that ArtIcles 7 1 2 and 7 1 3 together clearly and unambIguously provIde that a promoted employee who qualIfies for the salary treatment pre- scribed by the first bullet pomt (now paragraph (a)) of ArtIcle 7 12 and who was not paId at the maXImum rate m hIs/her pre-promotIOn posItIOn IS entItled to re- tam hIs/her pre-promotIOn anmversary date upon promotIOn. That IS Mr Me- hta's case HIS gnevance therefore succeeds [29] As I understand It, the umon's polIcy gnevance was mtended to raIse for final determmatIOn the same questIOn as Mr Mehta's gnevance - that IS, whether a promoted employee who qualIfies for the salary treatment prescribed by the first bullet pomt (now paragraph (a)) of ArtIcle 7 1 2 and who was not paId at the maXImum rate m hIs/her pre-promotIOn posItIOn IS entItled to retam hIs/her pre-promotIOn anmversary date upon promotIOn. On that Issue the polIcy gnevance succeeds as well. 15 [30] I should note that thIS case dId not, and thIS decIsIOn does not, deal wIth the case of a promoted employee who does not qualIfy for the specIal salary treatment prescribed by the first bullet pomt (now paragraph (a)) of ArtIcle 7 12 and who was not pmd at the maXImum rate m the employee's pre-promotIOn po- sItIOn. For an employee m those cIrcumstances, the first part of ArtIcle 7 12 pre- scribes the employee's promotIOnal mcrease but does not say (as the first bullet pomt does for employees m Mr Mehta's sItuatIOn) whether that mcrease IS "greater that one step" or "of one step or less" for purposes of paragraph (b) of Ar tIcle 7 1 3 The absence m the collectIve agreement of a defimtIOn to gUIde the applIcatIOn of ArtIcle 7 1 3(b) m such cases wIll present an mterpretIve problem If the partIes have not agreed or cannot now agree on one [31] By way of remedy m the umon grIevance, I declare that ArtIcles 7 1 2 and 7 1 3 together provIde that a promoted employee who qualIfies for the salary treatment prescribed by what IS now paragraph (a) of ArtIcle 7 12 and who was not pmd at the maXImum rate m hIs/her pre-promotIOn posItIOn IS entItled to re- tam hIs/her pre-promotIOn anmversary date I dIrect that the employer govern Itself m accordance wIth that mterpretatIOn. [32] By way of remedy m Mr Mehta's grIevance, I dIrect that the employer re- store hIS pre-promotIOn anmversary date, retroactIve to the date of hIS promo- tIon, and restore hIm financIally to the posItIOn he would have been m had It treated that date as hIS anmversary date from the outset ThIs wIll mclude com pensatmg hIm for salary shortfall resultmg from ItS havmg faIled to make hIS mcreases effectIve on that date smce hIS promotIOn, and makmg any adJustment to hIS benefits, penSIOn or otherwIse whIch may be necessary to restore hIm to the posItIOn he would have been m had he been treated throughout as havmg retamed hIS anmversary date on promotIOn. CompensatIOn for salary shortfall would mclude the sum of the dIfferences between the salary Mr Mehta receIved and the salary he ought to have receIved m each pay perIOd smce hIS promotIOn, together wIth mterest at an approprIate rate on each dIfference from the pay 16 date for the pay perIOd m whIch It occurred to the date on whIch compensatIOn for It IS paId [33] I remam seIsed wIth the Issue of the amount of compensatIOn payable to or on behalf of Mr Mehta and any other Issue that the partIes may be unable to resolve concermng the ImplementatIOn of thIS decIsIOn. Dated at Toronto, thIS 14th day of September, 2001 ~L(' Owen V Gray, Vice-ChaIr