HomeMy WebLinkAbout1978-0112.Union.83-08-04.: ,
: ONTdRIO
CROWN EWLCJYEES
GRIEVANCE
SETTLEMENT BOARD~~“~
Between:
Before:
112178
FINAL DECISION
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING BCT
Before
THE GRIEVANCE SETTLEMENT BOARD
Ontario Public Service Employees Union Grievor
- And -
The Crown in-Right of Ontario
(Ministry of Correctional
Services) Employer
E.B. Jolliffe, Q.C. Vice Chairman
L. Robinson Member
W. Evans Member
For the Grievor: R. Wells, Counsel
Cameron, Brewin & Scott
For the Employer: J. Zarudny, Counsel
Crown Law Office Civil
Ministry of the Attorney General
First Interim Decision: January 19, 1982
Second Interim Decision: March 17, 1982
Final Decision: February 11, 1983
Hearings: January 13, 1982 April 6, 21&23,1982
February 18, 1982 May 7, 1982
March 23, 1982
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DECISION
This dispute originated early in 1978 and a policy
grievance was presented on April 18 of that‘year. In June,
1978, it was referred to arbitration in a letter ~to be quoted
hereafter.
For various reasons the matter was repeatedly
adjourned at the request of the parties and did not come on
for hearing until January 13, 1982. One week prior to that
date, counsel for the Employer gave notice that the juris-
diction of this Board would be challenged at the outset.
Arguments on the initial objection to arbitrability were heard
on January 13, and an interim decision was issued January 19,
dismissing that objection.
The second hearing was held on February 18, at which
a second objection to arbitrability (based on the doctrine of
estoppel) was fully'argued. On March 17, this Board rendered
a second interim decision, dismissing the objection and ruling
that a hearing on the merits should proceed..
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Throughout the morning of March 23, further argu-
ments on purely legal questions were raised by both counsel,
but the Board declined to issue a third interim decision and
proceeded to hear evidence on the.merits. In the afternoon
of March 23, the Union counsel, Mr. Wells, called two wit-
nesses, Messrs. James Arnett and James Hanwell, both
Probation and Parole Officers for some years past.
At a continued hearing on April 6, Mr. Wells called
two other Probation and Parole Officers, Messrs. Peter D.
Park and Abdul Bhatti. The employer's counsel, Mr. Zarudny,
then called Mr. John A.R. Gardner , an officer with the
Management Policy Division of the Secretariat, Management Board
of Cabinet.
At a further hearing held on April 21, the Board
heard the testimony of Mr. Dickson Taylor, Director of Probation
and Parole in the Ministry of Correctional Services, whose
directive of March 15, 1978, had given rise to the dispute.
On April 23, Mr. Zarudny called two other witnesses:
Mr. John Spriggs, now a Regional Director based at Burlington,
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and Mr. Walter Gorchinsky, Chief Staff Relations Officer
with the Civil Service Commission for the past three years.
On the seventh day of hearings, May 7, arguments of
counsel on the merits of the case were heard, with numerous
references to the testimony and many exhibits.
It may be added that all of the eight witnesses were
exhaustively examined and cross-examined and further that the
Board has been confronted by voluminous documentary evidence
as well as lengthy written briefs prepared by learned counsel
and presented at various stages of the hearing.
Notwithstanding the bulk of the evidence and the
representations put forward by the parties, this Board is of
the opinion that the problem which arose in 1978 (continuing
in various forms since that time) was factually clear and un-
complicated.
Further, we are of the opinion that the issue to
be determined, i.e. the correct interpretation of Article 17
in the collective agreement between the parties, is a clear-
cut issue which need not be refined or elaborated at great
,
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length. The factual background and the issue to be decided
may now be explained as seen by this Board.
First, the factual background is that there are
peculiar require.ments for the satisfactory performance of
the duties of Parole Officers;. Their principal function is
to keep in touch with individuals who are on parole or on
probation by order of a court. Normally, such a person is
obliged to report to an officer and be interviewed at regu.lar
intervals. Not being shift workers, Parole Officers ordinarily
would be on duty throughout the day, ending at some time between
4 p.m. and 6 p.m. The problem was that many of the parolees
and probationers to be interviewed have day-time jobs. Since
it is not desirable to interfere with their, rehabilitation in
gainful employment, a practice arose some years ago (in 1969
or earlier) of arranging for each officer to be on duty during
the evening, once each week. This was so of the witness James
Arnett, who served in 1978 at the Ottawa off.ice, working on
Tuesdays.from 8.30 a.m. to 7 p.m. or 8 p.m., or (he states)
"sometimes to 9 or 10," although his "regular" hours were
supposed to be from 8.30 a.m. to 4.45 p.m. He "sometimes" broke
for supper at about 5 p.m., returning an hour later. Similarly,
I -6-
the witness James Hanwell at the Rexdale office received
certain "clients" on Wednesday evenings, and states that
such arrangements were in effect for all officers at Rexdale.
The witness Abdul Bhatti, at the Hamilton' office since 1974,
also did night duty on Wednesdays.
It must be made clear that this dispute is not -
concerned with overtime: it relates to meal allowances. From
time to time there were doubts about the authority to pay such
allowances, but those doubts were not analysed in depth or
firmly resolved. The question became confused with that of
overtime. Thus, parole officers were offered five additional
vacation days to compensate for long hours on one day of the
week. Another option was to take the afternoon off and work
in the evening. Apparently the options were accepted by some
officers, not by others. However, meal cost constituted a
separate problem. From the parole officers' point of view, if
a meal had to be taken in a restaurant, it would be no
different from a meal purchased while on travel status. The .
Ministry, up to a point, shared that view and attempted to
meet the need in various ways, but the evidence is clear
that no appropriate steps were taken to regularize the practice.
By reason of night duty, many officers claimed and
received "meal allowances" in varying amounts from time to
time. This is the matter upon which a dispute arose. It
must be decided of course by reference to the applicable
language in Article 17 of the collective agreement, as it
read in 1978, which must now be quoted in full:
17.1.1 in employee who continues to work xore than
two (2) hours of overtime immediately follow-
ing his scheduled hours of work without noti-
fication of the requirement to work such OVC?I-
time, prior to the end of his previously
scheduled shift, shall be reimbursed for the cast
ofone(l)ntzalto two dollars and fifty cents '($2.50)
exrnpt where free meals are provided or where
the employee is btiing compensated for meals
on some other basis.
17.1.2 A reasonable time with pay shall be allowed the
employee for the meal break either at or
adjacent to his work place.
17.2.1 Cost of meals may be allowed only:
17.2.2 if during a normal meal period the employee is
travelling on government business other than:
(a) on patrol duties, except as provided
17.2.3
17.2.4
17.2.5
17.3
17.4
under subsection 17.2.3, or
(b) within twenty-four (24) kilometres of his
assigned headquarters, oz
(b) within the metropolitan area he is normally
working;
if an employee on patrol duties is reimbursed for
overnight accommodation required for the? trip;
if, in an unusual non-recurring situation, the
department head authorizes such payment;
if, in any recurring situation, the Managc?ment
Board has authorized such payments because of the
special nature of the assignments.
Gratuities and taxes are to be included in the
actual cost of meals clajmed.
The total cost of meals for each day is to be
shown.
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17.5 Eefore approving claims for meals, the branch head
should be satisfied that the charges are reasonable for the
locality.
17.6 When an employee is authorized to pay meal expenses for
guests and the group also includes other Crown employees, he may
pay for the meals of the employees and claim the cost. These
employees should, if they are submitting a claim for the same
trip, indicate any meals covered in another employee's claim.
Tney must not claim the cost again.
In the 1980-81 version of the collective agreement,
the language of Article 17 is the same as above, with two
exceptions: (1) In 17.1 the figure ';two dollars' and fifty
cents ($2.50)" now appears as "three dollars ($3.00)" and
(2) in 17.2.2 (a) the word "subsection" has been inserted
before the figure "17.2.3."
Throughout a long 'period of time --- from 1978
to early in 1982 --- the dispute appears to have revolved
in a confused way around the meaning of 17.1 above. This
was due inpart to the form of Director Dickson Taylor's
memorandum of March 15, 1978, addressed to "All Probation and
Parole Staff" and headed "Overtime Meals." It was as follows:
Since the signing of the collective agreement, there
has been considerable misunderstanding in Probation and Parole
around overtime meal allowance for bargaining unit employees.
”
'Ihis allowance has been determined by Article 17.1.1. of
the Collective Agreement (Working Conditions). This Article
states -
"An employee who continues to work more than two (2)
hours of overtime immediately following his scheduled hours of
mrk without notification of the requirement to work such over-
time, prior to the end of his previously scheduled shift, shall
be reimbursed for the cost of tie (1) meal ~to ~KJ dollars and
fifty cents ($2.50) except where free meals are provided or where
the employee is being compensated for meals on scme other basis."
The operative provision for bargaining unit employees is
for the payment 'of one meal to $2.50 after two hours of overtime
inmediately following the scheduled tours of work, and provided
that no prior notification had been given of the requirement to
work such overtime.
This Article is only applicable to employees who, in the
course of overtime duty, are within 15 miles of their home office.
It will have been noted that the only passage in
the agreement quoted by Mr. Taylor was 17.1.1 , which he seems
to have believed was applicable. That clause, however, relates
to cases in which an employee works "more than two (2! hours of
overtime following his scheduled hours of work without notifi-
cation of the requirement to work such overtime, prior to the
end of his previously scheduled shift....." It is clear that
the affected Parole Officers did not fall within such language,
because their overtime one night a week was in accordance with
,a pre-arranged and continuing arrangemen~t of which they had
been well aware for some time. For this reason, the Board said
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in its first interim decision, January 19. at page 11: "If
the grievance were based on the provisions of 17.1.1 , it would
be obvious that the complaint on its face lacked merit and there
would be no question of administration or interpretation to
determine." However, Mr. Wells had said at the outset of the
first hearing that the grievance was based on 17.2.5 , not
17.1.1 , while Mr. Zarudny protested that the dispute had always
revolved around 17.1.1 , this being one of his grounds for
objecting to arbitrability.
Mr. Dickson Taylor's memorandum of March 15,
19,78, had not clarified the real issue, and indeed relied on
a.wholly irrelevant clause. Nor was the matter clarified by
the language of the grievance itself, since it referred only
to "Article 17." In his letter to the Deputy Minister of
Correctional Services, dated April 18, 1978, Mr. Charles
Darrow, then the President of OPSEU, wrote as follows:
The union hereby grieves the violation of Article 17 in that
a directive dated March 15th, 1978, from Mr. Dixon, Taylor,
unilaterally alters the established practice of providing
full compensation for an evening meal to probation and parole
officers on their regularly sche&led weekly evening reporting
assignments.
l'he union contends that Article 17 clearly contemplates the
existence of lccal arrangements for the payment of meal
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allowances in excess of those described in Article 17, and wa
further contend that such lccal arrangements cannot be modified
unilaterally by one party during the course of the collective
agreement.
'Ihe union therefore requests that you direct Mr. Taylor to
rescind his memo of March 15th, and to return to the original
practice established under this collective agreement of
providing full compensation to probation parole officers, for
actual meal expanses.
Further, in his letter of June 6, 1978,to the
Registrar of the Grievence Settlement Board (a copy of which
went to the Ministry) Mr. George Richards referred to Article
17, and not to either 17.1.1 or 17.2.5. In his letter he said:
'Ihe union hereby requests a hearing of the grievance dated
April lEth, concerning the application of cl. 17 of the working conditions collective agreement,dealing with meal allowances.
'ihe pimary issue in dispute raised by this grievance is
tiether or not the,provisions of Article 17 recognize and
incorporate methods of compensation not specifically listed
in the collective agreement, and whether or not any such
existing arrangements not expressly provided in the agreement
can be enforced through the grievance and arbitration procedure.
A copy of the original grievance is enclosed for your information.
Since both the Darrow letter and Mr. Richards
referred to Article 17 generally and not to any particular
clause therein, this Board in its interim decisions took the
view that the Union was not restricted to putting its case
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on the basis of 17.1.1 , as Mr. Dickson Taylor had done in
his memorandum of March 15, 1978. In other words, the Union
could not be bound by an error of the other party. Some con-
fusion might have been avoided if the Union had specified
17.2.1 and 17.2.5 as the language on which it relied, but
the employer had no right to assume that 17.1.1' was the only
clause at issue. At the same time, this Board cannot accept
the implication in the second paragraph, of Mr. Richards' letter
(if we understand him correctly) thatthere is jurisdiction to
enforce "existing arrangements not expressly provided in'the
agreement." Our only jurisdiction is in relation to rights
and obligations set out in the collective agreement or in
The Crown Employees Collective Bargaining Act.
Apart from 17.1.1., several other clauses in
Article 17 can be shortly disposed of: Clause 17.1.2.~ is not
in issue; nor is 17.2.2 (travel) nor 17.2.3 (patrol). It
will be seen that 17.2.4. relates to "an unusual non-recurring
situation" --- not the case here.
The only relevant language is in 17.2.1 and
17.2.5 , both of which. are worth repeating, one being connected
with the other.
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17.2.1 Cost of meals may be allowed only:
. . . . .
17.2.5 If, in any recurring situation,~the Management Poard
has authorized such payments because of the special
natire of the assignments.
The first clause'.just quoted seems to make clear
that meal costs = be allowed --- but only upon one or more
of the conditions which follow.
'The condition stated in 17.2.5 has three elements:
(1) "any recurring situation;"
(2) "the special nature of the assignment;"
(3) authorization by the Management Board.
Two of the elements identified above present no
difficulty whatever.
The night work required of many parole officers
undoubtedly constituted "recurring situations," and we so find.
In fact it was usually required one ,night a week, week after
week.
The night assignments were of a "special nature."
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For most professionals and clerical workers in the public
service, night duties are not required, at least not on a
recurring basis. It was the special responsibility of parole
officers for clients who could not attend during the day which
made weekly night~duty essential.
It is the third element in 17.2.5 which posed
the real issue in this case. Simply put, the question is:
was it a duly authorized practice to pay parole officers
meal allowances 'in respect of night duties?
Before'seeking the answer to that question I
comment must be made on certain matters as to which a great
deal of evidence was tendered by the parties. In our view,
such evidence has little or no bearing on the issues to be
determined and for that reason it will not be reviewed in detail.
(11 Evidence relating to practice.
It was established by testimony and many documents
that over a period of several years, meal allowances at varying
(and gradually rising) rates were actually paid to a number of
parole officers required to work at night.
y 15 -
For example, exhibits identified by Messrs.
Arnett, Hanwell .I or J.D. Park do indicate that claims were I
filed (and approved by supervisors) in amounts for "D" (dinner)
such as $4.75 and $5.50 in May, 1977: $6.10 and $6.20 in
October, 1976, .$6.22 in December, 1976; $6.24 in January,'l977;
similar figures in February,'March and April, 1977; $7.60 and
$7.65 in June, 1977; similar figures in each of the next six
months; slightly higher figures in the first three months of
1978. Thereafter, several claims in evidence were for only
$2.50, this being the.figure specified in Director Taylor's
memorandum. A series of claims made at Ottawa rose from $3.50
on April 6, 1975, to amounts varying between $3.90 and $5.50
in September and October, 1975. Such variations continued in
1976 until March, after which Mr. Arnett consistently claimed
$6.00; except that on .and after November 9 it became $6~.25 and
remained at that level until October, 1977, when it rose to
either $6.50 or $8.60, falling occasionally to lower figures,
the lowest being S5.90. Mr. Arnett's claims for dinner in
February and March, 1978, were only $2.50.
The examples cited above suggest that both parole
officers and supervisors were confused as to whether actual
expense was payable or a flat figure: they 'wavered between one
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and the other. In any event, having regard to the cost of
restaurant meals in such places as Toronto, Hamilton and Ottawa
between 1975 and 1978, the amounts claimed were ,not out of line
with those often allowed in both private and public sectors.
The officers' ~testimony also indicated that in making such
claims (and in getting them abproved by supervisors) they were
relying on what-they understood to be the instructions or
guidelines given by those at higher levels in the Ministry. It
was natural that there should be some misunderstandings and.
confusion. This will become apparent from what follows.
(2) Evidence relating to the Ministry's policy.
It now seems necessary to summarize the history of
policy directives relating to meal allowances for "night
reporting," subject to two qualifications. First, there is
no proof that such directives were communicated fully and clearly
to all parole officers and their supervisors, although it became
known from time to time that there had been certain changes.
The second and more important qualification is that the relevance
of Ministerial directives to the interpretation and application
of Article 17 in the collective agreement is doubtful, to say
the least, because not one of the directives emanated directly
from the Management Board of Cabinet.
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In July, 1966;the Department of Reform Institutions
issued a memorandum to senior officials enclosing Treasury
Board "Rules re.Travelling Expenses" approved on June 22, 1966.
The only relevant passages are at page 9, omitting those
paragraphs which are clearly inapplicable:
Rules re: Meals
(1) Cost of meals may bs allowed only . . . . .
- in an unusual non-recurring situation, if the
department head authorizes such payment.
- in recurring situations if, because of the
special nature of the assignments, Treasury
Board has authorized such payments.....
(2) All claims for meals shall be at' actual cost,
not including gratuities.....
(4) Before approving claims for meals, the branch
head should be satisfied that the charges are reasonable for the locality.....
Two of the paragraphs quoted above resemble~the
language of 17.2.1, 17.2.4 and 17.2.5 of Article 17 in the
collective agreement subsequently made.
None of the directives which follow came from the
Treasury Board, the Civil Service Commission or the Management
Board of Cabinet. All were issued by the Ministry of Correct-
ional Services at one level or another. Apparently the signif-
icance of that fact was not fully appreciated until midway
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through the hearings in this case.
On July 31, 1972, the Executive Director of the
Ministry's Administrative and Financial Services Division
issued a memorandum to~all Superintendents, Office Managers,
After-care offices, Probation'Offices and Branch Heads, entitled
"Ministerial Rules.....," which were said to be effective July 1,
1972, and to be incorporated in the Ministry's Manual of Admin-
istration. Section 6 was headed "Rules re: Meals" and includes
"Overtime Meals," paragraph (11) as follows:
(11) Claims for Meals - Overtime: Overtime Meals - Payment
for a msal shall be made when an employee, +.ho is not
otherwise entitled to compensation, either by way of pay or leave in lieu, performs three or more continuous
hours of overtime in tiich is included a usual meal time,
unless the meal is otherwise provided.
On July 16, 1973, Mr. J.E. Spriggs, then Regional
Director, Central (also a witness at the hearings in this
case) issued a memorandum to all supervising probation officers
in Central Region #30. It related to the authority of super-
vising probation officers to approve expense accounts and submit
them to the Accounts Branch at the Main Office.
In January, 1975, the Ministry issued a revised
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Probation and Parole,Manual. It referred to a wide variety of
subjects, but the following passage appeared at page 20
(Exhibit 9A):
(viii) Overtime
Probation Parole Officerb.are exempt from signing
the daily attendance register due to the nature of their
work, and the need to work beyond normal working hours, in
recognition of which Officers may be granted up to five
days compensating leave in addition to their annual vacation
entitlement which must be taken in the orrrent calendar year.
Actual meal expenses may be claimed where a Probation Parole
Officer's duties necessitate three or more continuous hours
of overtime work.
On May 14, 1975, Mr. W.E. Bunton, supervising in
Area 56, issued a memorandum to his staff in which he quoted
Section F.(a) in Management Board's "revised~rules on metal
expenses." The maximum rate for "Dinner" was said to be $6.25
(including Ontario Retail Sales Tax). Nothing he quoted
referred specifically to either travel or night reporting.
However, Mr. Bunton added the following paragraph in his
own words.
'Ihe only meal charge which usually applies for Area.#56
personnel is the Reporting Day overtime dinner charge for
Officers. Please note that (a) the overtime must comprise .-
three or more hours, immediately consecutive to the regular
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termination hour of the 7& hour work-day; and (b) the meal
charge must be for the actual out-of-pocket costs, within
the guidelines, since no actual allowance pertains for such
reals.
It is not clear from the evidence whether the same
or similar information was sent to the staff. in other areas.
On August 5, 1976,'Mr. Bunton sent another memorandum
to supervisors within his area inwhich he said:
4. Overtime should be recorded to the nearest half-hour,
e.g. 1944 hours is recorded as 1930 hours; 1945 hours
is recorded as 2000 hours. No authorization need be
shown for regular reportiq day overtime.
On March 31, 1977, Mr. W.J. Algar, Assistant Deputy :
Minister, Planning and Support Services, issued the following
memorandum to the Deputy Minister and all senior and super-
visory personnel in the Ministry of Correctional Services:
RE: MEAL ALLOWAmES
The Ministry's Senior Management Committee has reviewed the
current level of maximum meal allowances and has decided
that they should be increased. Ihe new maximum meal allowances
will be as follows, effective April 1. 1977:
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Breakfast . . s 3.00
Lunch . . $ 4.00
Dinner . . $ 8.00
TGTAL . . $15.00
The Administrative and Financial Division Manual will be
amended accordingly.
No reference was made in the above memorandum to
either travel expense or n ,ight reporting expense.
On April 13, 1977, Mr. Bunton sent a memorandum to
supervisors in his area, enclosing a copy of Mr. Algar's
"announcement" but stressing that t,he figures used were maxima.,
He said:
As you are aware, it is a matter of ongoing concern to me that
some staff seem to be consistently claiming up to or close to the
former maximum guideline amount for suppers related to reprting
night over-time pricks, as actual amounts @d out. The guide-
line seems to be construed as simi,lar to the old flat-rate overtime
meal allowance which the C.S.C. used to set. It has seemed very
incongruous that receipts are required for even the smallest parking charges, tiile multiple charges of $6.25 per reporting nights
supper can be routinely claimed month after month without receipt validation.. I muld like to discuss the subject at our next Area
S.S.M. Apil 21st, and shall be grateful if you will give the
subject prior consideration. (E.G., should we maintain the status
quo; or should receipts for all n-eal expenditures be necessary?)
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All of the documents quoted above were tendered in
evidence by the Union's Counsel, Mr. Wells, and their authen-
ticity has not been challenged. Also tendered as part of:the
Union's case were seven other documents, beginning with
memoranda issued to parole officers in 1963. It cannot be
said however, that they add anything significant to the Minis-
terial directives which have been summarized above. They simply
show that from time to time parole officers were advised of
increases in the maxima allowed for meals when on travel status,
with occasional references to night reporting. None of the
advice came from the Management Board of Cabinet; all of it
came from within the Ministry.
It was made clear in this Board's two interim decisions
that the onus of proof in a case of this kind is on the Union,
which had to establish the existence of the conditions referred
to in 17.2.5 of the 1978 agreement. When Mr. Wells closed
his case on April 6, Mr. Zarudny moved for dismissal; arguing
there was no evidence that the Management Board of Cabinet had
ever authorized meal allowances in respect of night reporting.
There seemed to be some substance in that argument.
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Nevertheless, it had been said by the same counsel
at hearings on January 13 and February 18 (as mentioned at
page 11 of the first interim decision) that "the employer
wishes to adduce evidence." Further, the Board found it very
difficult to understand how any Ministry could make payments
over a period of years for a certai,n purpose unless duly
authorized by law or by those charged with responsibility for
the lawful expenditure of public funds. This Board had no
duty or jurisdiction to pass judgment on the legality of payments
made between 1975 and 1978. Our only concern was to ascertain
whether in fact they had been authorized or approved by the
Management Board of Cabinet, the question which arises from the' '<
language of 17.2.5 in the collective agreement. Obviously, most
of the relevant facts were known to the employer's officials
rather than officials of the Union. The Board therefore ruled
that the case for the employer should be heard before 'a decision
on the merits could be made.
As already mentioned, Mr. Zarudny called four wit-
nesses. Through them 30 documentary exhibits were introduced.
Of these, five related to events after 1978, and do,not assist
in ascertaining what the facts were during the life of the,,
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1978 collective agreement. Many of the others were obviously
outdated long before 1978. More important evidence emerges
from the testimony of Mr. Gardner and .Mr. Gorchinsky.
Mr. Gardner Chad served a decade With the Management
Board, the last eight years in. the management policy division.
As such he was of course familiar with relations between his
Board and various Ministries.
Some of his duties relate to policy in respect of
employees' expense claims.
The witness referred to the Manual of Administration
issued by his Board and amended from time to time. However,
he said, a Ministry may adopt its own Manual so far as it is
not inconsistent with the master manual --- i.e. the Management
Board Manual of Administration, parts of which are in evidence.
Broadly speaking, Mr. Gardner said, a Ministry may
establish its own 4'ratesns for allowable expenses. Thus, rates
may vary be.tween Ministries. His Board does not have Ministry
Yanuals.on file; a "Review Branch" no longer exists.
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There were and are references in the Manual to meal
expense other than when an employee is on travel status. The
language used (by Management Board in 1975 as well as by
Treasury Board in earlier days) was the same as in 17.2.5 of
the collective agreement: "if, in any recurring situation,
the Management Board has authorized such payments because of
the special nature of the assignments.'
Mr. Gardner categorically denied that the Management
Board has ever received a request for such authorization. Not
having been requested, it has never been granted. Requests
of a nature involving an "exemption" are made on a form known
as M.B.-20. Such requests by a Ministry are evaluated together
with the supporting material. If approved, a Management Board
minute is made.
Scattered through the documents (with various dates)
produced by Mr. Gardner and other witnesses were many references,
both in the Manual and elsewhere, to allowable expenses. Most
relate specifically to travel expense. We cannot accept the
specious argument that all were framed in the context of travel
--- i.e. travel on government business away from home and head-
quarters. The argument is fallacious, because there are also
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references to "hospitality" expense, allowable in certain
circumstances, not necessarily while on travel status. Further,
as we have seen, it was expressly contemplated as early as the
Treasury Board Rules of June, 1966, that (a) in an unusual non- .
recurring situation, meal costs could be allowed by authority
of a "department head," and (b') in recurring situations meal
costs could be allowed by authority of Treasury Board. Neither
condition is necessarily identifiable with travel status..
Similar rules were in effect after the enactment of the Manage-
ment Board of Cabinet'Act of 1971 and 1972.
One provision of that Act i
in connection with this case. It is
s worthy of special note
to be found inSection
6. We take the liberty of omitting the irrelevant words and
underlining those which seem significant:
6. Subject to the approval of the Lieutenant Governor in
Council, the Board may make regulations,
. . . . . . . . . . .
(c) fixing the scale of allowances for travelling and
living expenses to be allowed to any prson employe33
or in connection with any part of the Public, Service,
except those allowances which have been determined by
bargaining under the Crown Employees collective
Bargaining Act.
- 27 -
In other words, the parties to the 1978 agreement
could have bargained and agreed upon a formula for meal allow-
ances in recurring situations without Management Board author-
ization --- but perhaps subject to approval by the Deputy
Minister. What was agreed upon, however, was the same formula
which had been in effect (in the Manual and elsewhere) since
1975 or earlier, and that formula expressly required Management
Board authorization. An ironic feature of the problem is that
the parties to the agreement of 1976 (and subsequent agreements)
were the Management Board of Cabinet and the Ontario Public
Service Employees Union.
The nearest approach to official 'approval may be found
in Exhibit 20, one of those produced .by Mr. Gardner. It is an
extract from the Manual of Administration under the generals
heading of "PROCEDURE iI1 Finance." Dated "30 April .74" and
"Approved by Treasury Board, April 2, 1969" it read exactly as
follows:
Payment for Meals - may b-s made where a +lic servant who
is not otherwise entitled to compensation either by way of
pay or leave in lieu, performs three or more continuous
hours of overtime in which is included a usual meal time,
unless the meal is otherwise provided.
- is approved by the branch head.
- 28 -
The extract quoted above seems to suggest that as
and from April 2, .1969, Treasury Board contemplated payment
for overtime meals (if approved by the branch head) in certain
situations (with exceptions) and it can be argued that it covered
parole officers required to perform night duty on a recurring
basis ---"unless otherwise en'titled to compensation". There are,
however, three reasons forholding that the 1969 Treasury Board
rule did not apply to parole officers in 1978.
The first reason is that the Management Board of
Cabinet Act of 1971 and 1972, Section 6 (quoted earlier in this
decision) expressly made "allowances" subject to "bargaining
under the Crown Employees Collective Bargaining Act" (enacted
about the same time) so that although Management Board could
make regulations in respect of "allowances for travelling and
living expenses" it could not do so in respect of allowances
governed by a provision in a collective agreement.
The second reason is of course that the matter was
expressly covered by Article 17.2.1'and 17.2.5 in the 1978
agreement between Management Board and the Union, when the
parties agreed that in "any recurring situation," overtime
meal costs would be allowed or& if Management Board
- 29 -
authorized such payments. It was further agreed that this
would be done "because of the special nature of the 'assignments"
which clearly required a judgment by Management Board that in a
particular situation the assignment given had a "special nature."
There is a total lack of evidence that the night assignments
given parole officers were ever brought to the attention of
Management Board, or that the Board was ever called upon to
"authorize such payments" as contemplated by 17.2.5. As
previously stated, the parties could have agreed on such
payments without Management Board authorization, but the
parties did not so agree.
The third and'perhaps most compelling reason is that
the 1969 Treasury Board rule set out in Exhibit 20 (and confirmed'
in 1974) was clearly revoked or negatived as of March 21, 1975,
as appears in Exhibit 21. Previously mentioned in this decision,
it was a later and amended extract from the Manual of Adminis-
tration's "DIRECTIVE III Finance ,'I being part of Section 6(4)
headed "Rules re: Meal Costs and Hospitality Expenses." The
page was designated "III-M-1Oa 21 March 75," and the relevant
language was as follows:
- 30 -
(4) Cost of meals may be allohed:
. . . . .
Cc) if, in anunusual non-recurring situation the
agency head authorizes such payment;
(d) if, in any recurring situation, the Management
Board has authorized sud-~ payments because of the
special nature of tba assignments.
Thus, whatever may have been the effect of the language
used in Exhibit 20 (which apparently remained in force until early
in 1975) the rule prevailing in 1978 was'as stated in Exhibit 21
above --- which is for all practical purposes the.same rule as
what was recognized by 17.2.5 in the 1978 collective agreement.
Mr. Dickson Taylor and tir. John Spriggs, now Regional
Director at Burlington, gave interesting and helpful information
about the history and problems of Parole and Probation Services,
and sought to explain the meal payments made prior to.1978 as
well as the $2.50 and $3.00 allowances thereafter. Such evidence
casts no light on whethe'r Management Board authorization had
been given, it merely shows why the Ministry acted as it did.
Apparently there was a general impression that allowances could
be paid by reason of certain Public Service Act Regulations,
Exhibit 288 (which had ceased to be effective in March, 1963)
or under the Ministry's own Manual, or under 17.1.1 of the
collective agreement. However, one of the documents.produced
was a letter, Exhibit 32, dated February 27, 1978, in which
Mr. R.J. Gibson, Manager, Personnel Services in the Metro
Region, suggested to Mr. A. Johnston, Senior Personnel Admin-
istrator, Standards and Audit,' .that no authority existed under
either the Manual of Administration or Article 17.1.1 to pay
meal allowances in respect of night reporting. In the opinion
of this Board, he was right, although he failed to state the
real reason, which was that no such payments had been author-
ized by the Management Board.
Mr. Walter Gorchinsky, Chief Staff Relations Officer
with the Civil Service Commission, had been senior negotiator :
in 1974-1976 negotiations for the first collective agreement
between the parties in this case. His evidence seemed, to
indicate that considerable confusion has arisen and continued
for years because of Management Board's practice (previously
explained) of delegating certain powers to Ministries, partic-
ularly in fixing rates. That delegation, however, did not
extend to matters expressly reserved for Management Board
approval, as in 1'7.2.5 of the collective agreement. It was
- 32 -
a restriction not generally understood, although very plainly
stated in 17.2.5 of the collective agreement as well as in
other documents.
We venture to express an opinion (apart from this
decision) that in the circumstances the payment of meal allow-
ances was appropriate, whether or not other options were of,fered
to or accepted by employees. There is no expense account in
evidence revealing that excessive or unreasonable claims were
sought or paid. We suggest also that it was hardly fair on
the part of the Ministry to ask (as sometimes occurred) that
time served in the evening follow immediately after work in
the day. That notion was probably derived from the inapplicable
and irrelevant reference in 17.1.1 to "overtime immediately
following his scheduled hours of work." '
Nevertheless, the Union's policy grievance necessarily
rests on the provisions of the 1978 collective agreement.
Considerations of what may be fair or reasonable cannot be
allowed to determine the result. The Union alleged in effect
a contravention of the 1978 agreement, which was grievable and
arbitrable under the Crown Employees Collective Bargainings Act
- 33 -
as wel.1 as Article 27 of the agreement. It was provided in
27.12 that "the Grievance Settlement Board shall have no
jurisdiction to alter, change, amend or enlarge any pro-
vision of the Collective Agreement." Thus, even if we
thought it proper, we have no power to remove the refer-
ence to Management Board from 17.2.5.
.Before summarizing'the Board's conclusions in
this case, it may be useful to mention the curious
history of relevant language, after'the making of the 1978
agreement as well as before.
The language ,of 17.2.5 first appeared in the
collective agreement made on January 28, 1976. It was
then numbered 14.2.5 but the words are exactly the same
as in 17.,2.5 in later years.
More interesting are certain changes in the
Management Manual issued after the 1978 agreement was
made. These were not argued at the hearings held by
this Board, but have, since come to our attention.
An amending page dated "11 Aug 78" and numbered
"60-2-7" contained a paragraph numbered 7.2 under the
headings "60 Employee's Expenses 2. Travel, Meal and
Hospitality Expenses," as follows:
Overtime Meals. An,employee who is not entitled
to compensation either by way of overtime pay or
leave in lieu thereof and who works two or more
continuous hours overtime which includes a
normal meal period, may, at the discretion of
the agency head, be reimbursed for the cost of
a meal which is not otherwise provided.
Another amendment is on page 7, Exhibit 26, and
appeared two years later. It is dated "1 Sep 80", and the
page bears the same number "60-2-7". This time paragraph
7.2 was as follows:
Overtime Meals. Provided that meals are
not otherwise made available, the cost of
a meal may be reimbursed, at the discretion
of the deputy head, 'for employees who are
required to work more than two hours con-
tinuous overtime, in the following cases:
(a) when the employee is not entitled to
compensation either b=ay of overtime
pay or time off in lieu.thereof; or
(b) when an employee who is entitled to compensation either by way of overtime
pay or leave in lieu thereof has not been given reasonable prior notice of
the need to work overtime.
It is obvious that were it not for the require-
ment in 17.2.5 of the collective agreement, the deputy
head would have been free to;authorize the payment of
meal allowances to parole officers doing night duty.
This would have been so at least after August 11, 1978.
The allowances actually paid were authorized by the
Management Manual, but contrary to 17.2.5 of the
collective agreement.
- 35 -
We find it difficult to understand why all those
concerned seem to have been unaware of what actually
appeared in the Management bIanua1 in 1978 and subsequent
years or why 17.2.5 was not consistent therewith.
The Board's conclusions may now be summarized
as follows:
(I) Meal allowances in respect of night reporting
were paid by the Ministry of Correctional Services to
parole officers in varying amounts during the life of
the 1978 agreement, but such payments were neither
required nor authorized under Article 17.1.1 of the
agreement.
(2) Although there was ample justification for
the payment of such allowances to parole officers in
recurring situations by reason of the special nature of
their assignments, it had never been authorized by the
Management Board, and therefore the employer had no
obligation to pay and the employees had no right to
receive such payments under Article 17.2.5 of the agree-
ment.
(3) Payments in respect of meal allowances
should be considered to have been claimed in good faith
by parole officers and in accordance with what they had
- 36 -
reason-to understand was the policy of the Ministry, and
the resulting payments made to them by the Ministry
should be considered in the same light, notwithstanding
the lack,of formal authorization by the Management Board,
which was a party to the applicable collective agreement.
In the result, the policy grievance fails and
must be dismissed.
DATED at Toronto this 11th day of February, 1983.
"I dissent" (Dissent to follow)
L; Robinson Member
W. Evans Member
812100
813700
4:1500
DISSENT
This must be one of the longest cases in the records~ of the
Grievance Settlement Board. The practice which gave rise to
the grievance goes back to the 1960's. The grievance itself
arose from a memorandum dated March 15, 1978. Following the
steps prescribed by the grievance procedure, the matter was
referred to arbitration in June 1978. Hearings before the
Board were held in January to May of 1982. The Board rendered
two interim decisions in January and March of 1982, and the
Majority Award was issued in February 1983. My dissent now
comes six months later.
The grievance concerns the payment of a meal allowance to
Probation and Parole Officers who work overtime in the reg-
ular course of their duties. Although these officers norm-
ally work on day shift, many of the,parolees whom they must
see at regular intervals also have day-time jobs, and must
accordingly be interviewed in the evening. Parole Officers
with evening "clients" thus developed the habit of working
overtime regularly once a week. They claimed and for many
years were paid a meal allowance for these evenings. Parole
Officers from Hamilton, Ottawa and Toronto testified that
they had received payment of an overtime meal allowance as
an established practice during 1975, '76, '77 and into '78.
Their evidence was supported by their expense accounts tender-
ed as exhibits.
-2-
However, the Ministry of Correctional Services sought to
put a stop to this practice by issuing a memorandum signed
by Mr. Dickson Taylor, Director of Probation and Parole
Services, and, as noted, dated March 15, 1978. The memo-
randum read as follows:
Subject - Overtime Meals
Since the signing of the collective agreement, there
has been considerable misunderstanding in Probation
and Parole around overtime meal allowance for bargain-
ing unit employees.
This allowance has been determined by Article 17.1.1
of the Collective Agreement (Working Conditions).
This Article states -
"An employee who continues to work more than two (2)
hours of overtime immediately following his scheduled
hours of work without notification of the requirement
to work such overtime, prior to the end of his prev-
iously scheduled shift, shall be reimbursed for the
cost on One (1) meal to two dollars and fifty cents
($2.50) except where free meals are provided or where
the employee is being compensated for meals on some
other basis."
The operative provision for bargaining unit employees is for the payment of one meal to $2.50 after two
hours of overtime immediately following the scheduled
hours of work, and provided that no prior notification had been given of the requirement to work such overtime.
This Article is only applicable to employees who, in
the course of overtime duty, are within 15 miles of
their home office.
Besides initiating the grievance, Mr. Taylor's memorandum was
also the source of a confusion which plagued the parties
througloutits course and was the subject of prolonged argument
before the Board. It will be noted that the memorandum refers
to Article 17.1.1 of the Collective Agreement, whereas a brief
‘3 -. ci
-3-
examination of this article is sufficient to show that it
has no application to the facts of the case. In the griev-
ance procedure leading up to arbitration, as well as in
written communications to the Deputy Minister of Correctional
Services and to the Registrar of the Grievance Settlement
Board, the Union relied on Article 17 as a whole, whereas
in its argument to the Board, the Union referred specifically
to Article 17.2.5. It will be useful, in order to clarify
the issue, to quote Article 17 in full.
ARTICLE 17 - MEAL ALLOWANCE
17.1.1 An employee who continues to work more than two (2)
hours of overtime immediately following his scheduled
hours of work without notification of the requirement
to work such overtime, prior to the end of his prev-
iously scheduled shift, shall be reimbursed for the
cost of one (1) meal to three dollars ($3.00) except
where free meals are provided or where the employee
is being compensated for meals on some other basis.
17.1.2 A reasonable time with pay shall be allowed the
employee for the meal break either at or adjacent
to his work place.
17.2.1 Cost of meals may be allowed only;
17.2.2 If during a normal meal period the employee is
travelling on government business other than:
(a) on patrol duties, except as provided under
subsection 17.2.3, or
(b) within twenty-four (24) kilometres of his
assigned headquarters, or
(cl within the metropolitan area in which he is
normally' working;
17.2.3 If an employee on patrol duties is reimbursed for
overnight accommodation required for the trip;
17.2.4 If, in an unusual non-recurring situation, the
department head authorizes such payment:
-4-
17.2.5 If, in any recurring situation, the Management
Board has authorized such payments because of
the special nature of the assignments.
17.3 Gratuities and taxes are to be included in the
actual cost of meals claimed.
17.4 The total cost of meals for each day is to be
shown.
17.5 Before approving claims for meals, the branch
head should be satisfied that the charges are
reasonable for the locality.
17.6 When an employee is authorized to pay meal ex-
penses for guests and the group also includes
other Crown employees, he may pay for the meals
of the employees and claim the cost. These
employees should, if they are submitting a claim
for the same trip, indicate any meals covered
in another employee's claim. They must not claim
the cost again.
Article 17.1.1 deals with employees who continue to work more
than two hours of overtime immediately following their scheduled
hours of work "without notification of the requirement to
work such overtime" prior to the end of their previously
scheduled shifts. But the Probation Officers who claimed and
were paid a meal allowance worked overtime in accordance with
a pre-arranged and regular schedule known to them well in ad-
Vance. Article 17.1.1 was thus clearly irrelevant. Bad the
Union followed Mr. Taylor in his error, the grievance would
have failed. Indeed, Mr. Zarudny, as Counsel for the Employer,
argued vehemently and at some length not only that the Union
had followed Mr. Taylor, but that it was also obliged to do -
so!
The articles relevant to this grievance are 17.2.1 and 17.2.5.
These state that cost of meals may be allowed subject to.three
-5-
conditions:
(a) there is a recurring situation:
(b) the special nature of the assignment, and
Cc) Management Board has authorized such payments.
With respect to the first two conditions, the Majority Award
concludes that they "present no difficulty whatever".
"The night work required of many parole officers
undoubtedly constituted "recurring situations", and we
so find. In fact it was usually required one night a
week, week after week.
"The night assignments were of a 'special nature'. For
most professional and clerical workers in the public
service, night duties are not required, at least not on a
recurring basis. It was the special responsibility of
parole officers for clients who could not attend during
the day which made weekly night duty essential.
"It is the third element in 17.2.5 which posed the real
issue in this case. Simply put, the question is: was it
a duly authorized practice to pay parole officers meal
allowances in respect of night duties?" (pages 13-14)
The Majority Award answered this question in the negative.
With respect, I do not agree.
3
-6-
Counsel for the Employer called four witnesses in support of
his case. Among these was Mr. John Gardner, a Management
Board officer with the Management Policy Division of the
Management Board Secretariat, which in turn reports to the
Management Board of Cabinet. Mr. Gardner has worked for.
eight years in the Management Policy Division.
As part of his evidence, Mr. Gardner submitted eight ex-
hibits (Exhibits 19 to 26), of which seven were extracts from
the Board's Ontario Manual of Administration. There is a
date in the bottom right hand corner of each page of these
extracts: from the variety of these dates and the number of
the pages, it is evident that the Manual is subject to frequent
and on occasion major amendment.
The second of Mr. Gardner's exhibits (Exhibit 20) is headed:
MANUAL OF ADMINISTRATION -------------------- PROCEDURE III. Finance
L. PAYROLL SYSTEM
and is dated 30 April 1974. Section 5 of the Payroll System
is headed:
5. PAYMENTS FOR OVERTIME AND STAND-BY TIME
and at page III-L-11 contains the following:
~Authorization for - is by the deputy minister or his
Payment of Overtime designee
Payment for
Meals
-7-
- may be made where a public servant
who is not otherwise entitled to
compensation either by way of pay or
leave in lieu, performs three or more continuous hours of overtime in which
is included a usual meal time, unless
the meal is otherwise provided.
- is approved by the branch head.
(Approved by Treasury Board, April 2, 1969. (Exhibit 20)
Here then is a directive from Nanagement Board authorizing the
payment for meals to public servants who perform three (later
reduced to two) or more continuous hours of overtime in which
is inciuded a usual meal time. This would appear to cover
the Probation and Parole Officers with whom we are concerned.
The language is more general, containing as it does no reference
either to a recurring situation or the special nature of the
assignments, but the essence of the problem, namely, that the
Officers work overtime in which is included a usual meal time
is clearly stated.
The Majority Award gives "three reasons for holding that the
1969 Treasury Board rule did not apply to parole officers in
1978.
"The first reason is that the Management Board of Cabinet
Act of 1971 and 1972; Section 6 (quoted earlier in this -
decision) expressly made 'allowances' subject to 'bargaining
under the Crown Employees Collective Bargaining Act'
(enacted about the same time) so that although Management
‘i ,a
- 8-
Board could make regulations in respect of 'allowances
for travelling and living expenses', it could not do
so in respect of allowances governed by a provision
in a collective agreement.
"The second reason is of course that the matter was
expressly covered by Article 17.2.1 and 17.2.5 in
the 1978 agreement between Management Board and the
Union, when the parties agreed that in 'any recurring
situation', overtime meal costs would be allowed &
if Management Board authorized such payments. It was
further agreed that this would be done 'because of the
special nature of the assignments' which clearly required
a judgmentby Management Board that in a particular situation
the assignment given had a 'special nature'. There is a
I total lack of evidence that the night assignments given
parole officers were ever brought to the attention of
Management Board, or that the Board was ever called upon
to 'authorize such payments' as contemplated by 17.2.5.
As previously stated, the parties could have agreed on
such payments without Management Board authorization, but
the parties did not so agree.
"The third and perhaps most compelling reason is that the
1969 Treasury Board rule set out in Exhibit 20 (and con-
firmed in 1974) was clearly revoked or negatived as of
March 21, 1975, as appears in Exhibit 21. Previously men-
tioned in this decision, it was a later and amended extract
-9-
from the Manual of Administration's "DIRECTIVE III
Finance", being part of Section 6(4) headed "Rules
re: Meal Costs and Hospitality Expenses". The page
was designated "III-M-1Qa 21 March 75", and the relevant
language was as follows:
(4) Cost of meals may be allowed:
. . . . .
(c) if, in an unusual non-recurring situation
the agency head authorizes such payment;
(d) if, in any recurring situation, the Man-
agement Board has authorized such pay-
ments because of the special nature of the
assignments.
"Thus, whatever may have been the effect of the language
used in Exhibit 20 (which apparently remained in force
until early in 1975) the rule prevailing in 1978 was as
stated in Exhibit 21 above -- which is for all practical
purposes the same rule as what was recognized by 17.2.5
in the 1978 collective agreement." (pages 28-30)
In assessing these three reasons, it is first necessary to give
the text of Section 6 of the Management Board of Cabinet Act.
It is cited in part at page 26 of the Majority Award, and is
as follows:
"6 . Subject to the approval of the Lieutenant Governor
in Council, the Board may make regulations,
. . . . . . .
- 10 -
(c) fixing the scale of allowances for travelling
and living expenses to be allowed to any person em-
ployed in or in connection with any part of the
Public Service, except those allowances which have
been determined by bargaining under the Crown
Employees Collective Bargaining Act."
The section speaks of the scale of the allowances; it says
nothing about the conditions under which the allowances are
to be paid. It is therefore when the scale of allowances is
governed by a provision of the Collective Agreement that
Section 6 precludes Management Board from making regulations
-. which fix their scale. Article 17.2.5 on the other hand sets
out the three conditions under which meal allowances may be
paid, but says nothing about the scale of these allowances.
It seems to me therefore that Section 6 is inapplicable to
the issue with which we are concerned.
Nor is the reference in Section 6 to the scale of allowances
surprising. One of Management Board's functions is to
negotiate on behalf of the Government with the Unions who
act as bargaining agents for organized public servants. It
would be illogical for Management Board to be given the power
to fix unilaterally the scale of allowances which has been
determined by collective bargaining; it could not have the
power to fix a scale which is below that agreed to in bar-
gaining, and there would be little point in allowing it to
fix a scale above that which had been agreed to. Be that as it
- 11 -
may, the language of Section 6 is clear; it limits
Management Board's power to fix the scale of allowances,
without any reference to the conditions under which these
allowances are to be paid. These may be governed either by
the Collective Agreement, or by the Manual of Administration,
or by specific Management Board decisions, or by a combination
of all three , provided they are not in conflict with each
other. Exhibit 20 is not in conflict with Article 17.2.5 -
of the Agreement, nor is it in conflict with Section 6 of
the Management Board of Cabinet A&t.
Turning to the second reason given in the Majority Award, this
implies that Article 17.2.5 specifies the precise manner in
which and the particularity with which Management Board must
authorize the payment of meals. In other words, Article 17.2.5
is held to bind Management Board in its decision-making process
with respect to the way in which the Board chooses to implement
the Collective Agreement. However, if Management Board chooses
instead to take a more general decision and to issue a directive
which is more general in its terms than the specific language
contained in the Agreement but which is not in conflict with
it, must we conclude that the Agreement prohibits Management
Board from doing so? Can it be said that the Agreement dic-
tates and limits Management Board's modus operandi, beyond
the limitations expressly provided by statute and the obvious
fact that Management Board, having signed the Agreement,
cannot make decisions which are contrary to and would thereby
derogate from the Agreement? If Exhibit 20 nullified Article
- 12 -
17.2.5, the conclusion would be clear. But it does not.
In my view, the second reason stated in the Majority Award
constitutes an exceedingly narrow and restrictive inter-
pretation of Article 17.2.5 which is unnecessary and un-
warranted. Moreover, as will be shown in-mediately below,
the format and instructions of the Manual of Administration,
if they did not altogether preclude at least strongly mili-
tated against an application to Management Board for authority
to pay overtime meal allowances to Parole Officers in the
terms which the interpretation given by the Majority Award
to Article 17.2.5 is held to require.
The third "and perhaps most compelling" reason given in the
Majority Award states that Exhibit 20 "was clearly revoked or
negatived as of March 21, 1975, as appears in Exhibit 21".
Three considerations argue against this conclusion. The first
arises from the fact that Exhibits 20 and 21 are two sections
of the Administrative Manual which are complementary, rather
than in conflict. There is nothing either in their format or
their language to suggest that the pages of Exhibit 21 which
are dated March 21, 1975, replaced or superseded Exhibit 20,
which is dated April 30, 1974; on the contrary, there is, as
will be shown in the second consideration, much to the contrary.
Nor was any evidence offered by any of the witnesses to suggest
that Exhibit 21 was intended to replace or supersede Exhibit
20; again, as will be shown below, there was much to the con-
trary. Accordingly, Exhibit 21 neither revoked or negatived
Exhibit 20, and was not intended to do so.
- 13 -
The dates of the two exhibits point in the same direction.
The date of the first page of Exhibit 21 is August 4, 1971,
from which we may infer that other pages of this exhibit
were.also issued in earlier versions at various dates before
March 21, 1976. Similarly, the crucial text of Exhibit 20,
quoted at pp. 6-7 above, includes the notation "Approved by
Treasury Board, April 2, 1969", from which we may infer that
this text was likewise to be found in earlierversions of
Section III - L PAYROLL SYSTEM of the Manual before April 30,
1974. Exhibits 20 and 21 may therefore be assumed to have
dwelt amicably alongside each other as two parallel sections
of the Manual for several years before 1974-75, without either
of them taking precedence over or overriding the other:
reference to file copies of the Manual would confirm whether
this was in fact so. The history of the two exhibits thus
supports the conclusion of the previous paragraph.
The second consideration arises from the terms of Exhibit 21
itself. The full title of the exhibit, similar to the title
of Exhibit 20, is:
MANUAL OF ADMINISTRATION -----------------:- DIRECTIVE
~,III. -Finance
M. TRAVELLING EXPENSES
and the first sentence of'which reads: "The following
Rules on Travelling Expenses have been approved by Treasury
Board" (my emphasis). Exhibit 21 is thus unmistakably
distinguished from Exhibit 20, which is
- 14 -
the preceding section of the Manual and whose full title
was given at page 6 above. The heading and reference to
travelling expenses led to endless confusion.
Paragraph 6, subparagraph (1) of Exhibit 21 is as follows:
"6 . Rules re: Meal Costs and Hospitality Expenses
General
(1) This policy prescribes the broad circumstances
in which meal and hospitality costs may be
allowed and sets out the minimum basic rules
to,be observed in reporting and approving them.
It is designed to provide the ministries with
sufficient flexibility to meet their own part-
icular needs. Its effective application,
therefore, is dependent on each ministry de-
veloping and publishing its own standards and
guidelines to regulate meals and hospitality
expenditure in accordance with the policy items
and general principles which follow."
Here is a clear and altogether sensible statement of the
principle of the delegation of authority for Ministries to
develop and implement their own standards and guidelines to
meet their own particular needs in accordance with general
Management Board policy.
Finally, under the heading General Principles for the Guidance
of Ministries, subparagraph (18) contains a cross-reference
to Exhibit 20 as follows:
- 15 -
(18) "In the formulation of standards and guidelines, the following should be considered:
(a) Cost of Meals
(vii) The prescription of rules for
special meals, (i.e. early and
late meals, overtime meals, holiday meals, etc. For overtime meals see page.
III-M-1Oe
21 March 75
(Exhibit 21)
(my emphasis)
Exhibit 21 contains, under the heading Meals at page
.III-M-lOa, what later became the text of Article 17.2.1 to
17.2.5 of the Collective Agreement. It was perhaps because
this text first appeared in the Manual of Administration
in the section headed Travellinq Expenses that Counsel
for the Employer argued that in the Collective Agreement also
it referred solely to travel. The Majority Award rejected
this argument, which it described (at page 25) as "specious"
and "fallacious". The argument sought to give to these para-
graphs of Article 17 a restricted interpretation which, taken
in their context of the Collective Agreement rather than in
the context of the Manual of Administration as it was in 1975,
they will not bear. But the practical effect within the
government administration of placing this text in Exhibit 21,
together with the cross-reference near the end of Exhibit 21
to an earlier section of the Manual, was that recurring ':
situations and assignments of a special nature were taken to
refer to travel. By contrast, when payment for overtime meals
was involved, a different section of the Manual, namely
Exhibit 20, was the applicable guide.
- 16 -
It is therefore not surprising, given the Manual as it
stood as of March 1975 and insofar as it was known to
officials of the Ministry of Correctional Services, that,
.as the Majority Award observed, "Management Board was never
called upon to 'authorize such payment' as contemplated by
17.2.5” (page 29).
The Employer cannot have it both ways. It cannot issue
a Manual of Administration which places the text of what are
now paragraphs 17.2.1 to 17.2.5 of Article 17 under 'I'ravelling
Expenses and instructs the Ministries to look elsewhere for
the rules which apply to the payment of overtime meals, and
then turn around and claim that the payment of overtime meals
to Probation Officers was never authorized because the Ministry
never applied for such authorization under a section which
the Manual says is not intended for that purpose.
To return to the thread of the argument and a brief summary.
Exhibit 20, from which the key paragraph is quoted at page 7
above, provides in my submission the necessary authority
from Management Board for the payment of overtime meals to
Probation Officers under Article 17.2.5. The Majority Award
gives three reasons for holding that Exhibit 20 did not
apply to Parole Officers in 1978, when the grievance arose;
these reasons are set out at pages 28 to 30 of the Majority
Award and are quoted above. The third of these reasons
is that Exhibit 20 was "clearly revoked or negatived" by
Exhibit 21, both these exhibits being extracts from the
- 17 -
Ontario Manual of Administration. Three considerations
argue against this conclusion, of which the sewnd derives
from the respective titles of the two exhibits and a
chess-reference in Exhibit 21 to Exhibit 20 for Management
Board rules concerning overtime meals.
Now to the third consideration. It is that Exhibit 21 was
in turn revoked or negatived by later changes to the Manual
of Administration. There has been a continual stream of
these changes, as shown by the dates of the exhibits tendered
by Mr. Gardner.
Indeed, it is evident that some time not later than April 30,
1976 (see Exhibit 24), the former Sections L and M of the - -
Manual were recast as part of what apparently became a new
structure of the Manual as a whole. Sections L and M were -
merged under a new heading:
60. Employee's Expenses
2. Travel, Meal and Hospitality Expenses
Exhibit 26, tendered by Mr. Gardner, constitutes this
section as it stood at the time of the hearing, the latest
page date being January 4, 1982.
No trace can be found in Exhibit 26 of the critical text in
Exhibit 21 on which the Majority Award relies (and from
which, as noted, Article 17.2.1 to 17.2.5 of the Collective
Agreement is derived). More than revoked or negatived, it has
- 18 -
simply vanished. Instead, paragraph I of Exhibit 26
(page 60-2-7) is headed Meals and contains paragraph 7.2
as follows:
"7.2 Overtime Meals. Provided thae meals are not other-
wise made available, the cost of a meal may be re-
imbursed, at the discretion of the deputy head,
for employees who are required to work more than
two hours continuous overtime, in the following
cases:
(a) when the employee is not entitled to compen-
sation either by way ofovertime pay or
time off in lieu thereof; or
(b) when an employee who is entitled to compen-
sation either by way of overtime pay or leave
in lieu thereof has not been given reasonable
prior notice of the need to work overtime."
Here, Management Board's authority referred to in Article
17.2.5 is delegated to "the discretion of the deputy head",
while the rest of the paragraph and in particular sub-
paragraph (a) covers employees such as Probation Officers
who are not entitled to compensation either by way of overtime
or time off in lieu thereof.
The Majority Award cites Paragraph 7.2 and comments:
"It is obvious that were it not for the requirement of
17.2.5 of the collective agreement, the deputy head would
have been free to authorize the payment of meal al-
lowances to parole officers doing night duty. . . . The -
allowances actually paid were authorized by the Management
Manual, but contrary to 17.2.5 of the collective agreement."
(page 34--my emphasis)
- 19 -
With respect, this seems to me quite wrong. The Collective
Agreement is a contract between the Ontario Public Service
Employees Union on the one hand and Management Board of
Cabinet on the other. The way in which Management Board
and more generally the Government as a whole choose to give
effect to the obligations assumed in the Agreement is for
them to decide. The Union requires and will of course demand
that full and faithful effect be given to these obligations,
but it is no part of the Union's business to tell Management
Board how from the point of view of internal government ad-
ministration it must do so; that is a Management right - and
duty. That is to say, the Collective Agreement cannot bind
the Government and in particular Management Board as to the
manner in which it implements the Agreement, provided only
that the rights and privileges which the Agreement gives to
employees are fully and fairly observed. From the Union's
and the employees' point of view, the manner in which
Elanagement Board chooses to operate is immaterial. There
is nothing in the Collective Agreement which says that Man-
agement Board may not delegate the authority given to it
by Article 17.2.5 to senior (or for that matter junior) of-
ficials in other Ministries. Such delegation was explicitly
set out in Exhibit 21 quoted above and was repeated in
slightly altered language,in Exhibit 26. It is entirely ap-
propriate and in accordance with sound management practice.
Officials at the administrative and financial nerve centre
of government should not be burdened with petty details in-
- 20 -
volving a small number of public servants in one part of
one Ministry and costing at most a few thousand dollars a
year.
Consequently, to read,such a prohibition into Article 17.2.5,
and thereby to deny this grievance, is to give the Article
an additional meaning which it neither has nor was intended
to have. Exhibit 20 formerly and now Exhibit 26 constitutes
the authorization from Management Board which Article 17.2.5
requires.
For the reasons given, I believe the grievance should succeed.
II.
I turn now to the equity of the case. Of course, a grievance
cannot succeed on the basis of equity if adequate legal
grounds are lacking. Equity was, however, unambiguously
on the side of the grievers,, and accordingly merits discussion.
There are three aspects:
1) The Ministry's practice in the payment of overtime meals.
The practice was in effect for a number of years and
naturally gave rise in the minds of Probation Officers
who were paid both to a presumption that the payment was
legal and to an expectation that it would continue.
2) The implication of the Employer's legal argument. In
denying that the Collective Agreement was violated when
‘1
- 21 -
the payment of overtime meals was stopped, Counsel for
the Employer was constrained to admit that all the pre-
ceding payments were without proper authorization, and
consequently unlawful. In endeavouring to clear his
client of one illegal act, Mr. Zarudny argued that the
Employer had been guilty of an uncounted series of prior
illegal acts. This was certainly a novel defence.
31 The difference in the interpretation given to the relevant
documents by the senior government officials involved,
both in the Ministry of Correctional Services and in
Management Board. These differences made it virtually
impossible for an application for authorization to pay
overtime meals in the terms which the Majority Award stated
were required by Article 17.2.5. Ignorance or confusion
of what the law is deemed to require thus leads to the
failure of the grievance. As indicated earlier, such a
conclusion appears to me patently inequitable.
The Majority Award states the equity of the case as follows:
"There was ample justification for the payment of
(overtime,meal) allowances to parole officers in re-
curring situations by reason of the special nature of
their assignments." (page 35)
Wholly apart from the legal rights and wrongs, which may be
debated;the decision to stop paying these allowances was
inequitable and was not in accordance with the standards
I----*-- .-
i ,
- 22 -
by which an enlightened employer should be guided in
dealing with his employees.
The evidence as to practice was impressive. Exhibit 5,
tendered by the Union, contains 43 expense account claims
for overtime meals and other expenses from Mr. J. P. Annett,
a Probation and Parole Officer who works in Ottawa and was
a witness before the Board. These claims cover the period
from April 1975 to September 1978. The first twenty-one
of these claims were submitted on the Ontario Government's
prescribed Statement Of Travelling Expenses form (7540-1041);
later claims were submi,tted on a Ministry form, as were
similar claims by Mr. Hanwell. All of these claims were
authorized by Mr. Annett's Senior Probation and Parole Officer,
approved by his Supervisory Probation and Parole Officer, and
duly paid.
Exhibit 8 contains 24 similar claims submitted by Mr. J. G.
Hanwell, a Probation and Parole Officer working in Toronto
who also appeared before the Board. These claims were
likewise authorized by Mr. Hanwell's Senior Probation and
Parole Officer and approved by his Supervisory Probation
and Parole Officer, in this case Mr. W. E. Bunton, whom we
shall meet later. Mr. Peter David Park gave evidence that,
as Office Manager of one of the Ministry's Toronto offices,
he routinely reviewed and authorized expense claims of the
probation and parole staff there, and he confirmed the evidence
of the two previous witnesses. Finally, Mr. Abdul Bhatti,
- 23 -
a Probation and Parole Officer working in Hamilton,
testified that he had submitted and received payment for
numerous claims similar to those of Messrs. Annett and
Hanwell. Indeed, in August 1978, five months after Mr.
Taylor's memorandum, he was allowed to claim $2.50 towards
the cost of his overtime meal, paying the balance from his
own-pocket.
In support of this practice, a stream of memoranda,.instructions,
rules and scales of allowable costs of meals emanating from
the Ministry gave what appeared to be clear and ample
authority for these payments. The first of these (Exhibit 6)
is the Introductory page to the Consolidation of All Memo-
randa issued by the Director to Probation Officers from January
1956 to the end of March 1963. It is dated May 1, 1963, and
issigned by' D. Coughlan, Director of Probation Services.
The last of these (Exhibit 16) is a memorandum dated March 31,
1977, issued by Mr. M. J. Algar, Assistant Deputy Minister,
setting out a new scale of meal allowances effective April 1,
1977. This memorandum was addressed to the Deputy Minister
and all senior officials of the Ministry. Pertinent extracts
from some of these memoranda are given here.
i) From the Director's Consolidated Memoranda, page 14, as
revised on May 25, .1971, under the heading OVERTIME:
"Supper money may be claimed where a Probation Officer's duties necessitate his working for 3 or more continuous hours, after 5:00 p.m., excluding time taken for the supper
.
- 24 -
period provided that the officer is unable to go home
for supper by reason of distance and that the Area
Supervisor supports the claim.
"(Excerpt quoted is found in the Regulations under the
Public Service Act 1961/62, and previously supplied
to all Supervising Probation Officers by our Personnel
office) (This includes all Civil Servants in Schedules
3, 4 and 7 as supplied to all Supervisors and offices
by Mr. A. R. Dick, Deputy Attorney-General under date
of April lst, 1971.)" (Exhibit 27)
This was revised on August 24, 1973 to read:
"A meal allowance up to $3.50 may be charged where an
officer works 3 hours overtime and is unable to go home
for his meal." (Exhibit 7)
ii) A memorandum dated July 31, 1972, from Mr. T. F. 3. West,
Executive Director, Administrative and Financial Services
Division of the Ministry of Correctional Services, sends
them attached copies of Ministerial "Rules on Travelling
Expenses, Expenses of Moving On Transfer, and Expenses
of Candidates and Appointees to positions in the Ministry"
(Exhibit 12). The rules form part of the Ministry's
Manual of Administration. Under Section F. Rules Re
Meals, Rule 9 headed Overtime Meal Claim and dated May,
1973, provides that:
"Payment for a meal shall be made when an employee, who is not otherwise entitled to compensation, either
by way of pay or leave in lieu, performs three or
more continuous hours of overtime in which is in-
cluded a usual m&al time, unless the meal is other-
wise provided.." (Exhibit 12A)
The similarity of this text to the language of Exhibit 20,
'taken from Management Board's Manual of Administration and
.
- 25 -
quoted on page I above, is striking. The text was
repeated in subsequent amendments to the Ministry's
Manual dated September 1974 (Exhibit 12) and August
1976 (Exhibit 12A).
iii) In a memorandum headed "Probation Staff Expense Accounts"
and dated October 18, 1972, Mr. D. C. Mason, then Director
of Probation and Parole Services, wrote:
"I am authorizing the four regional directors to approve
expense accounts of probation staff, and you will find
attached sample signatures." (Exhibit 13A)
In a later memorandum headed "Staff Travelling Expense
Accounts" and dated July 12, 1973, Mr. Mason informed
his Regional Directors that:
"The Accounts Branch hasagreed to accept the Supervising
Probation Officer's signature for Probation Officers and Senior Officers in their respective areas, and, therefore,
it will be in order for the Supervisor to sign both in the
"authorized" and "approved" sections, and these accounts
may be submitted directly to the Accounts Branch at Main Office for reimbursement.
"Where a Senior Officer has been delegated responsibility
for an office, he may authorize Expense Accounts and
forward them to the Supervisor for approval." (Exhibit 13A)
Four days later, Mr. John E. Spriggs, Regional Director
of the Central Region, transmitted this information to all
Supervising Probation Officers in his region.(Exhibit 13).
To repeat, overtime meal claims were made on Travelling
Expenses account forms.
i ,
- 26 -
iv) In January 1975, a new Probation and Parole Service
Manual replaced the Director's previous Consolidated
Memoranda as well as the Probation Officers Handbook
(19651, "both of which have been rendered obsolete by
organizational changes within the Ministry, legislative
revisions, and expanded job functions". (Exhibit 9).
At page 20, under the heading Overtime, the new Manual
stated:
"Actual meal expenses may be claimed where a probation ,.;
parole officer's duties necessitate three or more con-
tinuous hours of overtime."
v) Finally, on May 14, 1975, Mr. W. B. Bunton, a Super-
visory Parole and Probation Officer in Area 56, issued
a memorandum to his staff on the subject of Rules on
Travelling, in which "attention is drawn
to the Management Board of Cabinet's revised rules on
meal expenses" (Exhibit 14).
(Mr. Spriggs suggested in his evidence that the reference
to Management Board was in error, that the reference
should have been to the Ministry's Rules. The text of
these Rules, at page 4 of Exhibit 12, indicates that Mr.
Spriggs was correct.)
Mr. Bunton's memorandum set out the maximum guidelines
for "reasonable meal costs under normal circumstances",
and added the following:
- 27 -
"The only meal charge which applies for Area #56 per- sonnel is the Reporting Day overtime dinner charge for
Officers. Please note,that (a) the overtime must com-
prise three or more hours, immediately consecutive to
the regular termination hour of the 7-k hour work-day;
and (b) the meal charge must be for the actual out-of-
pocket costs, within the guidelines, since no actual
allowance pertains for such meals." (Exhibit 14)
Mr. Bunton sent a copy of this memorandum to his Regional
Director, namely, Mr. Spriggs, who, as noted, was a witness
before the Board.
As the Majority Award notes, these rules and memoranda all
came from within the Ministry. The extent to which the
officials who issued them had knowledge of Management Board's
Manual of Administration and/or other directives remained,
on the evidence before us, an open question, although the
notable similarity of the text quoted from Exhibit 12A and
text of Exhibit 20 suggests at least some familiarity. What-
ever the answer may be, senior Ministry officials stated and
were on the record for many years in no doubt that claims
for overtime meals were properly authorized and lawful, and
so instructed their staff. Thus, practice plus repeated as-
sertions of legality gave unquestioned support to equity.
Consequently, when following Mr. Dickson Taylor's memorandum
of March 15, 1978, the payment of meals was stopped, the
Union grieved. It had every reason to believe that its griev-
ance was well founded.
i
- 28 -
The Union alleged a violation of the collective Agreement,
specifically of Article 17. That is normal. The Employer
replied that there was no violation, which is also normal.
But the reply was to the effect that stopping the payment
of overtime meals was not in violation of the Agreement; rather
it was the payments themselves. Notwithstanding the weight
of evidence to the contrary, these payments had from the
first never been properly authorized, were contrary to the
terms of Article 17 and were in consequence unlawful. All the
Parole and Probation Officers who had claimed overtime meals,
all their superiors and other officials who had authorized
and approved the claims, who had issued the cheques and who had
subsequently audited both the claims and the cheques without
finding any fault in them, as well as all the senior Ministry
officials who had written the many exhibits quoted above, were
in error. They had acted without proper authority and in
effect unlawfully. This was an unusual, indeed a remarkable
reply.
By way of analogy, it is as if a lawyer, defending his client
on a charge of speeding, were to argue that his client could
not possibly have been speeding because he had in his car
$100,000 which he had stolen from the bank the day before and
consequently the last thing he would want to do was to draw
the attention of the police to himself on the highway. In-
stead of one alleged violation of the Collective Agreement,
Mr. Zarudny in reply argued innumerable previous violations
.
-29-
stretching back over many years. He did so with energy and
zeal. He represented his client with a malignant fidelity.
There may be cases in which no other argument is possible,
in which the facts and/or the law are so clear as to allow
no alternative. In such cases, better plead guilty to the
lesser offence and be done with it. But this was definitely
not so in the present case. This brings me to the third
aspect on which I wish to comment, namely, the diversity of
understanding and interpretation, and in some cases misin-
terpretation, of the texts discussed above on the part of
some of the officials concerned. Nor were all of the texts
models of clarity. Wholly apart from any difference in
the conclusions eventually arrived at, the Board spent a good
many hours working its way through this tangle.
TO begin with, there is Mr. Dickson Taylor's memorandum which
gave rise to the grievance. As will be recalled, the memo-
randum begins by stating, "Since the signing of the Collective
Agreement, there has been considerable misunderstanding in
Probation and Parole around overtime meal allowance for
bargaining unit employees," and proceeds to discuss the issues
in terms of Article 17.1.1 of the Collective Agreement. Un-
fortunately, since this article was irrelevant to the issue,
Mr. Taylor's memorandum did nothing to clear up the misunder-
standing to which it referred in its first paragraph.
.
- 30 -
Even before issuing his memorandum, Mr. Taylor had sought
the assistance of Mr. J. F. Benedict, Manager, Staff Relations
for the Ministry. Mr. Benedict in reply (Exhibit 16) sug-
gested some changes in the draft submitted to him, but did
not question the reference to Article 17.1.1. On the other
hand, two weeks earlier, Mr. R. J. Gibson, Manager of Personnel
Services, Metro Region, had expressed his opinion that Article
17.1.1 "is not applicable in the case of Probation Officers",
precisely for the reason that their overtime hours "are
usually scheduled hours, usually the same ones each week and
as such are not 'without notification of the requirement to
work such overtime, prior to the end of (their) previously
scheduled shift."' (Exhibit 32) Mr. Gibson's memorandum is
dated February 27, 1978, and Mr. Taylor testified that it was
brought to his attention around that time.
After Mr. Taylor's memorandum had been issued, Mr. W. E. Bunton,
wrote to him to say:
"With respect, it is my opinion that the memo will only
further muddy waters that are already notably opaque.
In assuming that it is Mr. Benedict's interpretation
which you are relating to the field, I must say that I
do not think that the cited Article 17.1.1 applies to
our Officers." (Exhibit 33)
As recorded in the Minutes of a meeting of the Central Region
Area Supervisors held on March 30, 1978 (Exhibit 34), the matter
of overtime meal allowances
"was again brought forward because of the concern as
expressed over the most recent memo from the Director
which did not clarify the issue in terms of the circum-
stances under which overtime meal expenditures were to
to allowed. . . . It was expected that the OPSEU Union
would grieve this meal disallowance and in so doing would
force a Management position on Probation and Parole Officers
overtime meal allowances."
Nevertheless, during the next four years and throughout the
Board's hearings, in spite of the doubts and concern which
had been expressed, Management clung tenaciously to Article
17.1.1.
Mr. Taylor told the Board that in 1976 he thought the payment
of $3.50 for an overtime meal was quite legal. When the ques-
tion of the increasing cost of overtime meals arose, he said
he believed the Regional Director understood that $3.50 was
the limit, not the $6.00,(later raised to $8.00) which staff
members were entitled to claim when travelling. But he ad-
mitted that not all the Regional Directors were clear about
this.
Mr. Taylor also said that he thought, and his advisors told
him, that only Article 17.1.1 was involved insofar as the pay-
ment of overtime meals was concerned.
Finally, Mr. Taylor told the Board that it was decided in
July 1979 to re-institute the payment of $2.50 for overtime
meals. This followed a meeting in May 1979 of the Ministry's
Employee Relations Committee for Probation and Parole Services,
-’ i
- 32 -
attended by Mr. Taylor, Mr. Benedict and others. The min-
utes of the meeting record the following:
” 1 . Meal Allowances
The discussion on meal allowances for "reporting nights'
continued from the August 8, 1978 meeting. Management
agreed to allow a meal allowance of $2.50 when exces-
sive hours are worked on a 'reporting night'. However,
the allowance will not be paid if such hours are not
worked in excess ofthe normal number of daily working
hours." (Grievance Documents, page 5)
In retrospect, Mr. Taylor wondered whether there was any
authority to make these payments. At the time, however, he
felt that the authority might derive from previous practice
and this, he said, was the advice of staff members in per-
sonnel who took part in discussions of the matter.
Mr. John Gardner, in his evidence, explained that Management
Board's policies are published in the Government of Ontario's
Manual of Administration. Ministry manuals, although they
may be more detailed, must conform to the Ontario Manual:
thus, each Ministry prepares its own Manual, using relevant
parts of the Ontario one. Mr. Gardner described the Ontario
Manual as large, indeed "monstrous", and.expensive. He
also said that Management Board did not examine Ministry
manuals to ensure that they conformed with the Ontario Manual.
In other words, Ministries were responsible for interpreting
the Ontario Manual as it applied to them, while Management
Board made no effort to ensure that they had done so correctly.
I
: i
- 33 -
Mr. Gardner interpreted the paragraph of Exhibit 20 relating
to, payment for overtime meals as stating that when an em-
ployee is authorized to work overtime and he was not pro-
vided with a meal, he could be paid for the meal. He
thought this paragraph was similar to Article 17.1.1, even
though the key words "without notification of the requirement
to work such overtime" are absent from Exhibit 20, as they
are also from Exhibit 26 (see pages 7 and18 above). Mr.
Gardner made no comment on this latter exhibit.
With respect to Exhibit 21, Mr. Gardner emphasized that it
dealt with travelling expenses and was in a section of the
Manual designated accordingly. Consequently, in his view,
this exhibit authorized the payment of meals only to public
servants on travel status, whereas Exhibit 20 was concerned
with the payment of meals for overtime. Insofar as recurring
situations were concerned, Management Board had never received
a request to authorize the payment of meals under the para-
graph which states:
"Meals
(4) Cost of meals may be allowed:
l'(d) if, in any recurring situation, the Management Board has authorized such payments because of
the special nature of the assignments." (Exhibit 21)
It follows that, Mr. Gardner emphasized, since the language
of this paragraph is the same as that of Article 17.2.5,
; i
- 34 -
Management Board had never been asked to authorize the pay-
ment of meals under this Article, and had never done so.
Mr. Walter Gorchinsky was the final witness for the Employer.
He is the Chief Staff Relations Officer of the Civil Service
Commission, and was the Government's senior negotiator for
the first Collective Agreement. He was also the Government's
principal negotiator of the current Agreement and his name
appears as one of its signatories.
Mr. Gorchinsky made the same distinction between Exhibits 20
and 21 as Mr. Gardner: they were two sections of the Manual
dealing with two different subjects. Exhibit 20 dealt with
the payment of meals to public servants working overtime,
whereas Exhibit 21 dealt with the payment of meals to public
servants when travelling. He emphasized this point by
reference to public servants in the classifications set out
in Section 6 of Regulation 881 under the Public Service Act
(Exhibit 42); Section 6 includes Probation Officers. These
public servants are not entitled to payment for overtime
but, Mr. Gorchinsky said, insofar as the payment of overtime
meals was concerned, reference should be made to Exhibit 20.
Mr. Gorchinsky did not comment on Article 17.1.1 and Article
17.2.5, nor on the confusion which arose following Mr. Taylor's
memorandum of March 1978.
To summarize, although Mr. Taylor was not clear what the
authority was for the payment of overtime meals up to $3.50
* i
- 35 -
but believed that the issue came under the purview of
Article 17.1.1, he was certain that any amount above $3.50
should be allowed only in the case of travel, thus excluding
probation officers on night reporting overtime for anything
above $3.50. For his part, Mr. Gardner thought that the
paragraph in Exhibit 20 dealing with overtime meals authorized
payment only under Article 17.1.1, thus excluding probation
officers altogether, whereas any request for the payment
of meals pursuant to Exhibit 21 and Article 17.2.5 would be
concerned only with meals taken while travelling. With
this interpretation in mind, Mr. Gardner would no doubt have
been surprised,if a request had been made for permission
to pay meals to Probation Officers for their night reporting
overtime hours, while Mr. Taylor's understanding of the issue
made such a request unlikely, to say the least.
The Majority Award comments as follows:
"The Board found it very difficult to understand how any
Mlnistry could make payments over a period of years for
a certain purpose unless duly authorized by.law or by
those charged with responsibility for the lawful expendi-
ture of public funds. This Board had no duty or juris-
I diction to pass judgment on the legality of payments made
between 1975 and 1978 (which however, if not properly
authorized, were not legal - HLR). Our only concern was -
to ascertain whether in fact they had been authorized
or approved by the Management Board of Cabinet, the
i
- 36 -
question which arises from the language of 17.2.5 in the
collective agreement." (page 23)
In my opinion, the proper authority for these payments was -
there, and senior officials of the Ministry involved con-
fidently and repeatedly asserted that it was there. How-
ever, when early in 1978 doubts began to be felt and con-
fusion ensued, no one seems to have bothered to ask the
people in Management Board from whom the authority ultimately
had to come. Not being called upon to clarify the issue, they
remained silent. Nor, as their evidence disclosed, were
they themselves clear about it. As I have said, the Employer
was having it both ways.
Management Board negotiates and signs the Collective Agreement
on behalf of the Employer. The Union is thus entitled to
assume that Management.Board will take such steps as are
necessary to implement the Agreement - in this case, to
authorize the payment of overtime meals to Probation and Parole
Officers who qualify under Article 17.2.5. Even more, the
Union was entitled to assume, in view of the Ministry's
practice and the stream of memoranda, instructions and rules
which gave effect to this practice, that Management Board had -
authorized the payment of overtime meals. The Union would
have been in an awkward position, both from the point of view
of the interests of its members and from the point of view
of employer-employee relations, if it had expressed doubts on
this score and had thus seemed to question the good faith of
d i
- 37 -
Management Board in implementing the Agreement which it had
negotiated and signed. More importantly however, given all
the circumstances, the Union had no reason to have doubts.
But the Union's confidence that it can count on Management
Board to implement the Agreement will not remain unaffected
by the position which the Employer took in this case and by
the evidence, discussed above, of Messrs. Gardner and Gor-
chinsky as to what had been done or rather, as they under-
stood it, what'had not been done with respect to Article -
17.2.5.
In judging the meaning of administrative rules and directives
which are reasonably open to different interpretations, one
should hesitate about being categorical. However, the in-
terpretation I.have put forward in the first part of this
dissent, to the effect that there was proper authority for -
the payment of overtime meals, has several advantages:
(1) it is in harmony with equity and thereby with good em-
ployer-employee relations, rather than in conflict with
them;
(2) it endorses a long-standing practice of the Ministry,
rather than repudiating it:
ti b
- 38 -
(3) it confirms the validity of the memoranda, instructions
and rules which established and sustained the practice,
rather than denying their validity:
(41 it upholds the senior officials of the Ministry who
issued these rules and directives in the belief that
there was proper authority for doing so, rather than
disavowing them, and
(5) it finds the government in violation of the Collective
Agreement only once, when it stopped the payment of
overtime meals, rather than in violation of legality
innumerable times over a period of some ten years. The
former is not uncommon, and occasionally perhaps
pardonable. The latter is not, nor should be.
These are no small advantages. An interpretation of the
relevant documents which does not have these advantages must
be rock solid and unassailable. It is surely desirable
that it should, if at all possible, be avoided. By contrast,
an interpretation which does have these advantages is greatly
preferable even if, taken by itself, it might perhaps be
thought to be less cogent and compelling. However, I do not
believe that my interpretation is at all wanting in this
respect.
1’
I
‘Fd - 39 -
For all these reasons, I would have upheld the grievance.
Toronto, Ontario Toronto, Ontario
August 4, 1983 August 4, 1983
,y -- .
H. I,,-.RobiXSonC~'Member H. I,,_.RobiXSon;'Member
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