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HomeMy WebLinkAbout1982-0564.OPSEU.92-09-08‘/ ;p &T&W EMPLOYLS DE LA CLwlONi,l~ DEL’ONTARIO .a CROWNEMPLQYEES GdlEVANCE C(lMMlSSlON DE ;$KL.MENT REGLEMENT DES GRIEFS BETWEEN Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD &gggQg: FOR TRE GRIEVOR FOR THE L. McIntosh EMPLOYER Counsel Crown Law Office - Civil Ministry df the Attorney General HEARING 564/82 IN THE MATTER OF AN ARBITRATION OPSEU (Clerk 6 General) - and - The Crown in Right of Ontario (Management Board of Cabinet) Grievor Employer R. Kennedy I. Freedman G. Milley Vice-Chairperson Member Member T. Iiadwen Counsel Cavalluzzo, Hayes & Shilton Barristtirs & Solicitors May 6, 1992 AWARD Our Interim Award in thii matter, dated Cctoier 18, 1989, outlines the background circumetancee of these grievancee. There were originally approximately 180 grievances filed dealing with the appropriate amount of salary to be paid to employees classified aa Clerk 6 General. This ptiel of the Board wae constituted to resolve the outstanding issues with respect to 5 of those grievances and, on June 22, 1988, we received a detailed brief comprising the agreed facts and extensive argument on the merita. At issue WJM .the interpretation of Article 27.2.1 of the Collective Agreement which provides aa follows: An employee who believes he has a complaint or a difference shdl fmt 1 discuss the complaint or difference with hie supervisor within 20 days of first becoming aware of the complaint or difference. The g-riev&ces before this panel of the Board were filed in’ August and September of 1982, but they relate to a series of eventa that commenced with the establishment of the classification of Clerk 6 General in June. of 1979. That history and the progress ,-of the matter through a number of decisions of tbie Board have been briefly summarized in our Interim Award. At the risk of overeimplification, we will briefly summarize the arguments which were advanced to ue on June 22, 1988. ,,, . -3- For the Union, it was argued that Article 27.2.1 constitutes unusual language, in the sense that the employee must be aware of the existence of the complaint or difference, not merely the factual circur&ances that give rise to it. It contain8 no language of limitation, such a8 “knew or ought to have known” and, within that language, the Grievers had filed grievances within 20 day8 of the time they became aware that the 8ahXl’y payments they had been receiving since 1979 had, in fact, been incorrectly calculated. It was argued that therefore the grievance was timely within the Collective Agreement for all past breaches and that ~relief should be granted back to the commencement of each GrieVOf8 time in the classification and not limited to 20 day8 before the date of the filing of the grievance. The language was contrasted by Union counsel to the provisions of Article 27.8.1 of the Collective Agreement dealing with a Union grievance which starts time running from “the occurrence or . origination of the circumstance8 giving rise to the grievance”. It was argued that in a l&our relations context the language of Article 27.8.1 ie much more conventional limitation language and that, therefore, the parties, by using the different language in Article 27.2.1, must have intended a different result. Union counsel further advanced arguments based on principles of equity which, in view of our treatment of the principal issue, we need not address. ‘- 4 - Cn behalf of the Employer, it was conceded that the Grievors were entitled to payment with interest at the correct salary rate from a date 20 days prior to the date of filing each individual grievance. For the earlier period, however, it was argued that the language of Article 27.2.1 still left open the issue of “aware of &&?” It was the Employer’s position that awareness of the facts on, the part of the Grievor was sufficient and that such awarenesson the part of the Grievors extended back into 1979 Andy that, therefore, the grievance was not timely for the period that predated 20 days before the filing of the grievance. It was argued that even if the subjective test set out in m 492/86 (Verity) were accepted as correct, that test had been met in that the Grievors had all of the raw material to make a decision. They knew their clas&cation, the rates of pay and all of the provisions of the Collective Agreement. The Employer’s argument preferred the other Iine of decisions of this Board as represented by Graham 96V86, m 377163 and yninn Grievance 71/76. In the alternative, the Employer argued that Union awareness of the issues was sufficient, even in the context of an individual grievance, and the Union~clearly had such knowledge in lightof its carriage of the Szalonczay matter. Reliance was also placed by the Employer on equitable arguments in the area of acquiescence, latches and delay In the course of the June 22, 1988 hearing, we were advised that the m decision was the subject matter of an application for judicial review by the Employer. In these circumstances, ‘this panel expressed the view that it would be illogical for us to make yet another contribution to the~Board’s conflicting jurisprudence in the area, and we determined that we would wait for tbe judicial review in m. At the time we resumed in October of 1969, the Judicial Review was still in progress, and accordingly in the Interim Award we limited our consideration to interim payments dealing with the period subsequent to 20 days prior to the filing of the grievances. When the Board reconvened May 6, 1992, we were advised that at this stage we were to consider only 3 of those grievances, and the issue focused on the entitlement of those Grievors for the period before 20 days preceding the filing of the, grievance. There are apparently other issues outstanding with respect to the other two grievances dealing,with whether or not entitlements in those matters had been settled at an earlier stage. Accordingly, this Interim Award addresses only the issue of entitlement for the period up to 20 days prior to the filing of grievances for the 3 grlevors. -6. The application for judicial review of the & decision was heard by the Divisional Court July 11, 1990, and, at the conclusion of the hearing, the following was endorsed on the record: “July 11, 1990 We are all of the view that the Board was correct in its conclusion that the 20-day time period within which the grievor had to bring her grievance, began to run only when she became aware that she had a complaint that was based on a violation or possible violation of the collective agreement. In our view, the ‘complaint or difference’ referred to in Article 27.2.1 of the collective agreement is the same hind of complaint(s) or difference(s) mentioned in Article 27.1, that is to say a complaint or difference ‘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’. The grievor knew at least by November, 1985 that she was unhappy about a possible exposure to TB., butshe was not aware until late February, 1986 that such exposure might constitute a complaint or difference with her employer arising out of a contravention by it of the collective agreement. Until she became so aware she could not have believed she had such a complaint. It is implicit in the reasons of the Board that the grievor first became aware that she had a complaint based on a violation or possible violation of the collective agreement on February 25, 1986 when her Union representative told her she could file a grievance. The grievor filed her complaint on March 4, 1986 well within the 20-day time limit for doing so. The words ‘believes’ and ‘becoming aware’ found in Article 27.2.1 clearly establish that it is only the subjective awareness of the employee that she has a complaint arising out of a possible violation of the agreement that sets the 20-day time limit running. Having found the Board was correct in its interpretation of the collective agreement, it is not necessary for ue to decide whether this application would also have failed if it couId be said that the interpretation placed on .the agreement by the Board was not patently unreasonable. The application is dismissed with costs to the Union.” Detailed written-reesons were issued by the Court September 5, 1990, and they focused principally on a more detailed consideration of the “patently unreasonable” test referred to in the second last paragraph of the endorsement. They~ do not modify the substantive statements set out in the endorsement defining the appropriate interpretation of Article 27.2.1. The Employer sought a further review of the matter by the Ontario Court of Appeal, but leave to appeal was refused in July of 1991. On the resumption of the hearing, it wss again argued by the Union that personal awareness is the trigger which starts the time limit running, and an individual grievor needs all the pieces to the puzzle before he or she can know that it is a collective agreement matter. While the Grievors were first short changed on a pay in 1979, the first time they were aware of the fact of the error and the right to grieve it was in August of 1982, and hence the grievances are timely with respect to the 1979 violations. For the Employer, it was argued that the Grievors were aware of their new classifications and of the amount that they were being paid, and that was the only matter of which they had to have subjective awareness. It was argued ? -a- that the’ Divisional Court in m was ~incorrect on the second branch of its holding with respect to the requirement of subjective awareness that the difference was amenable to resalution under the collective agreement. It was argued that that aspect of the Divisional Court decision was obifer dicta, as the detailed reasons made it clear that the patently unreasonable test was the real rationale of the decision.~ It had, therefore, not been necessary for the Divisional Court to make the additional finding that the original decision was, in fact, correct. Reference was made to other earlier decisions of this Board requiring lesser degrees of understanding and awareness on the part of a grievor in order to start the time limits for a grievance running. This issue pf timeliness has had a somewhat tortuous history through the jurisprudence of this Board. There have been conflicting lines of authority on the issue of what the collective agreement language means, which conflict has to a large extent been based on differing views as to labour relations policy and the desirability of objective as opposed to subjective standards. The analysis set lout in a as adopted by the Divisional Court in its endorsement issued July 11, 1990 reaffirms the subjective standard. This is the one that ought to guide future awards. Paragraph 4 of the endorsement states unequivocally: -9- The words ‘believes’ and ‘becoming aware’ found in Article 27.2.1 clearly establish ‘that it is only the subjective awareness of the employee that she has a complaint arising out of a possible violation of the agreement that sets the 20-day time limit running. That is the binding interpretation of the language used by the parties in their collective agreement, and it will be a question of fact in any future proceedings whether in the circumstances of that case the evidence establishes such subjective awareness. The agreed facts pursuant to which these matters came before this Board include in paragraph 18 the following: The grievors were advised at the time of their new classification and of the salary rates at which they would be paid. As of the date when each grievor was first classified as Clerk 6 Bargaining Unit, the grievors knew that thev rates of pay were governed by the collective agreement. The grievers did not know until they were contacted by their Union representatives, following the memorandum dated August 25,1982 which is Schedule ‘IF”, Of the fact that the Board had decided that an individual whose position was in the Clerk 6, General (Bargaining Unit) classification at the relevant time was entitled to the July 1, 1979 salary increase and to a revision of his base rate of pay for 1980 and 1981. The grievors did not realize until that time that their salaries might be wrong. The grievers filed their grievance within 20 days thereafter. On the factual circumstances of these grievances, it is clear that there was no earlier subjective awareness on’the part of the grievors, either that there was an error in the salaq amounts that they had been paid since 1979, or that they had a grievance i - 10 - under ,the provisions of the collective agreement. Within 20 days of acquiring such ‘awareness, they tiled grievances and those grievances are, therefore, under the Collective Agreement timely with respect to violations of the Collective Agreement, occurring subsequent to July 1, 1979, or the date’upon which they entered the classification, whichever is the later. The three Grievors whom we are presently considering are entitled to be compensated accordingly, and we would so award. We remain seized with respect to the implementation of this award and any and all other outstanding issues with respect to any of the grievances that are before us, should the parties not be able to agree. DATED this 8th day of September, 1992. q! hw (Addendum to follow) G. J. Milley - Member CLERK 6 (GENERAL) - 564/82 ADDENDUM I have concurred in the award because the evidence appears to be uncontradicted that the grievors, until they learned there was an error in the salary amounts they had been paid, were unaware they had a complaint. While I agree that a grievor, subjectively, must be aware of a complaint, the further question of whether the grievor must also be aware that the c?mplaint.is amenable to resolution under the collective agreement is one that, in my view, has not been satisfactorily dealt with in jurisprudence to date. Obviously, some complaints may be subject to the terms of the collective agreement while others may not. In practice, it is sometimes difficult for the employee to make this determination. Clearly, he must make every effort to see if it is a violation of the agreement by referring to his collective agreement and, if necessary, consulting with his union representative. However, in some instances the determination can only be made by referring it to arbitration. How can the awareness that a complaint is a violation or possible violation of the collective agreement be a pre-condition to filing a grievance and starting the 20-day time clock running when it is.only by filing the grievance the matter can be processed to arbitration to determine whether it, in fact, is a violation? Prudence ‘would seem to dictate that if there is some doubt in the grievor's mind about a violation or possible violation, he ought to file the grievance to protect the 20-day time period within which the grievor has to bring his grievance. I am inclined to the view expressed in the reference in BONDY 1203/89,page 12: "...Thus, disputes with respect to travel expenses and overtime pay evidently relate to matters ~that would be pace 2 provided for in the collective agreement. An employee who becomes aware of a "complaint or difference*' conc- erning such a matter, should, in our view, be assumed to realize that this is a matter which he or she could pursue through the dispute resolution procedures of the Collective Agreement. Thus, an employee who is disapp- ointed by an employer decision with respect to a matter of this kind must, whether or not he or she "subjectively" believes the matter to be potentially grievable, pursue the matter within the time frame stipulated in Article 27.2.1. Any other interpretation of the agreement would be inconsistent, in my view, with the stipulation in Article 27.1 to the effect that "It is the intent of this Agreement to adjust as quickly as possible any complaints or differences between the parties arising from the interpretation, application, administration or alleged contravention of this agreement..." and its underlying rational&'. Respectfully submitted, % Employer Nominee