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HomeMy WebLinkAbout1982-0317.Parr.83-03-08317182 IN THE MXTTER OF AN ARBITRATION Under THE CROWN EMPLQYEES COLLECTIVE BARGAINING ACT Before THE CRId’ANCE SETTLEMENT BOARD ., .-; . Before: For the Griever: For the Employer: Hearing: OPSEU (Rick Parr) and The Crown in Right of Ontario (Ministry of Education) K. P. Swan Vice Chairman L. Robinson Member E. A. McLean Member C. C. Paliare Counsel Cameron, Brewin & Scott Barristers & Solicitors R. 8. Itenson Senior Staff Relations Officer Staff Relations Division Civil Service Commission Griever Employer November 23,1982 _ . -2 - The matter that arises for determination here is the preliminary objection to the arbitrability of the grievance based on Article 6 of the Working Conditions Collective Agreement binding these parties at all material times. The grievance, one of three ;grievances submitted by employees of the Sir James Whitney School, a regional centre for, the hearing handicapped in Belleville, Ontario, was submitted on iMarch 30, 1982 (Exhibit I), relating to attendance at a summer course in Brantford, Ontario during July and August, 1981. The preliminary objection is to the effect that the grievtice was filed out of time in accordance with Article 27 oi the Working~Conditions Collective Agreement. The maferial parts of Article 27 are as follows: 27.1 It is the intent of this Agreement to adjust as quickly as possibly any complaints or differences between the parties arising from the interpretation, application, administration or alleged contravention of this Agreement, including any question as to whether a matter is arbitrable. 27.2.1 An employee who believes he has a complaint or a difference shall first discuss the complaint or difference with his supervisor within twenty (20) days of first becoming aware of the complaint or difference. .-.. STAGE I 27.3.1 The employee may file a grievance in writing with his supervisor. The supervisor shall give the griever his decision in writing within seven (71,days of the submission of the grievance. It will be seen rrom this provision that the requirements are ‘to raise a matter informally with a supervisor within twenty days “of first becoming aware of the complaint or difference” and, failing satisfaction, to file a formal grievance in writing within a total of seventeen days following the discussion. It has been held by this Board on a number of occasicns that Article 27.9, which provides that a failure to observe time limits in the processing of a grievance results in it being deemed to have been -3 - withdrawn, makes this clause mandatory and not merely directory: see Keeling, 45175 and OPSEU and Ministry of Health, 671181. Before us, both parties were agreed that we should treat the language as mandatory; the Union’s case is based entirely upon the doctrine of estoppel, particularly set out in Canadian Natioml Railway Co. et al. v. Beatty et al (1981),‘34 O.R. (2d) 386 (Ontario Divisional Court). The evidence on which the Union’s invocation of the promissory estoppel doctrine must be tested comes entirely from Mr. .Dennis Ruscoe, a Residence Counsellor 2 at Sir James Whitney School and a union steward since June, 1981. Mr. Ruscoe stated~that Residence Counsellors at the _’ scbool,~ work on a ichool year system from approximately September 1 to approximately June 30 of the following year. Residence Counsellors “bank” hours up to a total of 1880 worked, and then take the summer months of July and August off. It is not uncommon for courses to be offered during these summer months and, indeed, a Residence Counsellor Summer Course was, in fact, held in Brantford, Ontario during a four-week period beginning in July. There is evidence (Exhibit 3) that there is no requirement to attend’ such a course, but satisfactory completion of such a course is necessary if .L. an employee wishes to reach the Residence Counsellor 2 classification. Free room and board is provided to persons attending the course, in addition td “an honorarium” in the amount of $100.00 per week. There.is also evidence that these financial arrangements had been made known to the participants in the 1981 course before they actually attended in Brantford. This information is primarify for the purposes of background, and the issue which is before us does not really turn on any of these considerations. -4- It appears from Mr. Ruscoe’s evidence that, upon return from the course and commencement of work in September, employees who had been on the course that summer filed expense accounts for imeals and for done trip to and from Brantford; the griever was one of a group of ‘employees who were involved. It appears that these travel expense forms were~ rejected, and a memorandum was sent by Mr. H. Bryant, the Assistant Superintendent, Student Services, to the employees in the following terms: The $100.00 per week which you received as an honorarium is considered to be a payment at that rate for your attendance at the IT81 Residence Counsellor Summer Course. Mr. David Neil1 advised that 211 Provincial schools have been paid for the 1981 course in a similar fashion. -. Since it was an honorarium it was therefore taxable. This, it appears, is the position which the employer has taken from the beginning about the substance of the issue between the parties. Mr. Ruscoe went to see Mr. Bryant about October 14, 1981, and took the position that the Ministry’s approach to the honorarium was inconsistent. In his view, if the honorarium was taxable, it should be ~viewed as salary and expenses should, therefore, be payable in addition. If, on the other hand, it was to be regarded as an indemnity for expenses, a ..i. suggestion raised in another communication from the employer (Exhibit 5), then it seems unreasonable for it to be taxable. It is Mr. Ruscoe’s uncontradicted evidence that he told (Mr. Bryant on October I4 that “time is running short” in respect of filing a grievance and that faction should thereby be taken as quickly as possible. IMr. Ruscoe had apparently been in contact with the federal income tax advisors at Revenue Canada, and had learned that honoraria are treated as salary but could be reported on a T4A slip for income tax purposes, which would permit employees to deduct travel and meal - 5- expenses incurred in earning this income from the income actually paid. He suggested this to Mr. Bryant as a possible settlement of the matter, and Mr. Bryant expressed interest in that approach, asking only for some time to clear the matter with payroll. The meeting ended on this tentative agreement. On October 28, 1981, Mr. Bryant:sent a letter to the Personnel Branch of the Ministry of Education, with a copy to Mr. Ruscoe, raising the issue of reporting the honorarium on a T4A slip for income tax purposes (Exhibit 6). Following some internal correspondence (Exhibit 7 and 8), Mr; Bryant was informed,-aafid subsequently informed Mr. Ruscoe, that the honoraria for attendance at the summer courses wo&be reported on T4A slips as requested. Both IMr. Ruscoe and Mr. Bryant appear to have treated this matter as settled at that point. “~ At some point early in 1982, Mr. Ruscoe received further information from the Belleville office of Revenue Canada that the correct way to report an honorarium against which expenses are to be deducted would be to use a form T2200, described as “Declaration of Employment Conditions- -Office or Employment Expenses”. This form includes a question, to be answered by checking either “yes” or “no”: “Was this employee required to pay any ~expenses incurred in the performance of assigned dutues?” <Mr. Ruscoe passed copies of this forin on to Mr. Bryant’s: office for completion on behalf of the employees’concerned, but Mr. Bryant replied that he would require to seek an opinion from the ,Ministry, given the wording of the quest’;ons set out above. Mr. Bryant was unconvinced that the summer course was an “assigned duty”, since employees were not required ‘to attend the course but could elect to do so for the purposes of advancement. On - 6- ,::. February 16, 1982, Mr. Bryant wrote in these terms to Mr. Ruscoe (Exhibit 10). On March 9, 1982, Mr. Ruscoe and Mr. Bryant met, along with four IResidence Counsellors who were ,involved, to discuss the issue. Minutes were taken of that meeting and circulated by Mr. Bryant, and it appears from those minutes that the School took the position that it would do its best either to have the honorarium treated as non-taxable expenses and to attempt to have tax returned- which had been deducted. It was, however, clear that Mr. Bryant would not sign the form T2200 as requested by the Union, on the- basis that attendance at summer $chool is not a duty assignment. The employees appear to have regarded this meeting on March 9 as a discussion of a “complaint or difference”, and the undertaking in Mr. Biyant’s “minutes” to attempt to resolve the matter within seven working days lends some force to this assertion. Apparently no resolution satisfactory to the employees was reached, and the grievances were, therefore, fi1ed.o” March 30, 1982. It is the Union’s position that, if the meeting on March 9 was an informal discussibn of the complaint or difference, then the grievance was filed just in time pursuant to Article 27.2.2. In the Union’s submission, the period of time between the actual occurrence of the events and the meeting on March 9 can be explained by the fact that the employees were waiting to hear from the Empioyer, and it .was only on March 9 that they knew for certain that the resolution of the issue of pay for the summer ~C. course was not going to be in their favour. The Union’s submission is either that the employees could not be said to be “aware of the complaint of difference” until shortly before March 9, or that they were induced, by the -7- conduct of the Employer, to refrain from taking eariier action by way of formal presentation of a grievance such that they suffered detriment. This raises, in the Union’s submission, the doctrine of promissory estoppel, and the Union submits that the Employer ought to be prevented from relying upon the issue of time limits in all of the circumstances of its own conduct in this case. The Employer’s position, of course, is simply that the time limits were grossly exceeded and that the Union is not able now to present the case to arbitration. It may well be that, in some cases, the doctrine of promissory .a.. estoppel will arise so as to prevent an employer in similar circumstances from’taking advantage of time limits set out in Article 27. In the present case, however, it is extremely difficult to see how the doctrine operates and to prevent the Employer from claiming its strict rights. Perhaps the most important single aspect of the factual situation in this regard is the nature of the grievance actually filed on March 30. ~That grievance alleges a breach of Article 6 of the Working Conditions Collective Agreement, a provision which deals with the temporary assignment of an employee to perform the duties of a position in another classification. It is not immediately clear how the Union proposes ‘to characterize attendance at a summer course as a temporary assignment of this sort, but in any case it is obvious that the grievance actually filed is dramatically different from the circumstances which originaily gave rise to the grievance, The employees went on the summer school course apparently knowing the form which remuneration would take and, upon their return, attempted to claim travel expenses for the ,trip to and from the site of the course. Mr. Ruscoe apparently raised the question of whether the honorarium was to be viewed - 8- as salary or expenses in October, but there had never been a claim for payment of full salary at the rate of their own classification, or any other classification, for the period spent on the course. In October and November, the employees were prepared to agree to accept the honorarium if it could be reported on a T4A slip. Were we called upon to decide-the issue, we would have decided on Mr. Ruscoe’s evidence alone that the issue was conclusively settled when 1Mr. Bryant informed Mr. Ruscoe that the honorarium would be reported on the T4A. Only in February does the issue of the T2200 slip arise, and it appears that the employer was still willing to report income on the T4A slip and allow employees to make their own arrangements with Revenue Canada. Following further discussion, a meeting took place on March 9, 1982 where, according to Mr. Bryant’s minutes, and without a hint of contradiction ,from Mr. Ruscoe, the discussion turned entirely upon how to deal with the honorarium for income tax purposes. There is no indication that the question of full salary, at whatever rate, was ever raised during the course of that meeting. Finally, on March 30, 1982, the grievance is filed which must on its face be claiming not compliance with ttie undertaking in respect of income tax, nor payment of travel expenses as originally claimed, but what appears as remuneration at full salary for the four-week period. The Employer says that it is the Union which should be estopped rather than the Employer in these circumstances. In our view, it is sufficient simply to say that whatever might have been the case had another grievance been filed, the grievance which was actually filed on March 30, 1982 must be viewed to be en~tirely out of time. If it was the intention to file a ; , - -9- grievance in these-terms all along, it is difficult to see how any of the discussions with the Employer prevented the filing of such a grievance or even induced delay in the filing of such a grievance. The grievance ,is, therefore, not arbitrable. DATED AT Toronto, Ontario, this 8th day of March, 1983. K. P. Swan, Vice Chairman L. Robinson, Member .I. E. A. McLean, Member 2:3128