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HomeMy WebLinkAbout2002-1510.Union Grievance.04-06-10 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2002-1510 UNION# 2002-0999-0021 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Umon Gnevance) Grievor - and - The Crown In RIght of Ontano (Management Board Secretanat) Employer BEFORE Richard Brown Vice-Chair FOR THE UNION Richard Blair Ryder Wnght, Blair & Doyle BarrIsters and SOlICItorS FOR THE EMPLOYER Kelly Burke Semor Counsel Management Board Secretanat WRITTEN May 31 June 4 & 7 2004 SUBMISSIONS 2 DeCISIon ThIS IS the fifth In a senes of decIsIOns deahng wIth statutory hohday pay for employees desIgnated as essentIal and/or emergency workers dunng the 2002 stnke ThIS decIsIOn deals exclusIvely wIth the Issue of whether Interest should be paid on momes OWIng The dIspute over Interest IS comphcated by the manner In whIch rates of pay apphcable to the relevant dates are detennIned. The 1999-2001 collectIve agreement governed terms and condItIons of employment for those desIgnated to provIde essentIal or emergency servIces dunng the strike The rates of pay contaIned In that agreement were Increased retroactIvely by the memorandum of settlement endIng the work stoppage, and the retroactIve Increase came Into effect before the hohdays In questIOn I wIll deal first wIth Interest on momes OWIng under the 1999-2001 agreement and then turn to Interest on momes OWIng by vIrtue of the retroactIve Increase I Insofar as the umon claims Interest on momes OWIng under the expIred collectIve agreement, the matter IS governed by artIcle 22 18 1 of the agreement Where monetary compensatIOn and/or damages are decIded to be OWIng for a gnevance, Interest shall be payable as follows (a) for the penod commenCIng thIrty (30) days pnor to the date the gnevance was filed untIl the decIsIOn (1) Interest shall be calculated at the quarterly prune rates, set by the Bank of Canada, averaged yearly for that penod. (2) Interest wIll be paid on all amounts OWIng, except where compensatIOn IS payable for back payor any other amount that accnles over tIme, Interest shall be calculated on one half of the com pensatIon 3 (b) for the penod from the date of the decIsIOn untIl the compensatIOn and/or damages IS paid, Interest shall be payable on all amounts OWIng, payable at the prune rate set by the Bank of Canada, for the quarter before the decIsIOn Employer counsel contends the umon IS estopped from claunIng Interest because such a claim was first mentIOned on the last day ofheanng, May 12,2004 AccordIng to thIS argument, the umon's InItIal sIlence "lulled" the employer Into "a false sense of secunty", and the later request for Interest caught management by "surpnse " The response of umon counsel IS that the ear her absence of an exphcIt claim for Interest dId not amount to a representatIOn that no such claim would be made If and when matters relatIng to remedy were eventually addressed. Counsel for the umon also notes "In any event, an estoppel reqUIres rehance, both reasonable and detnmental Here, there IS neIther" Detnmental rehance IS an essentIal prereqUIsIte to an estoppel The only rehance mentIOned by the employer IS beIng lulled Into a false sense of secunty In my VIew, tlus sort of rehance IS not sufficIently concrete or detnmental to warrant the InVOcatIOn of an estoppel, so as to preclude the umon from assertIng the nght to Interest conferred by the collectIve agreement The employer IS dIrected to pay Interest In accordance wIth artIcle 22 18 1 for momes OWIng under the 1999-2001 agreement For the purpose of applYIng thIS artIcle, the date of the decIsIOn IS March 8, 2004 II TurnIng to Interest on momes OWIng by vIrtue of the retroactIve wage Increase, I note the memorandum of settlement endIng the work stoppage, dated May 2, 2002, states "RetroactIve adJustments shall be paid as soon as reasonably possible after ratIficatIOn by both partIes "RetroactIve payments later were made In three 4 Instalments (1) a first Intenm payment on August 1,2002, (2) a second Intenm payment on September 12,2002, and (3) a final payment on October 10,2002 The foregoIng facts are recIted In OPSEU and Management Board Secretarzat, decIsIOn dated March 25, 2004, GSB No 2002-0610 (Petryshen), where thIS board held the retroactIve payments had been made "as soon as reasonably possible" RelYIng upon tlus decIsIOn, employer counsel argues Interest on the retroactIve- Increase component ofhohday pay should begIn to accnle only after October 10, 2002 I agree For momes OWIng by vIrtue of the retro-actIve Increase, the employer IS dIrected. (1) for the penod from October 10,2002 to March 8, 2004, to pay Interest In accordance wIth the formula In paragraph (a) of artIcle 22 18 1, and (2) for the penod from March 8, 2004 to the date payment IS made, to pay Interest In accordance wIth the formula In paragraph (b) of artIcle 22 18 1 Dated at Toronto tlus 10th day of June 2004 ~~ /~Jchard Brown VIce-Chair