Loading...
HomeMy WebLinkAbout1984-0217.Crawford.85-05-13Between: IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT '.~ -_ Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (Terry Crawford) - and - Grievor The Crown in Right of Ontario (Ministry of Transportation and Carmunications) Employer Before: Paula Knopf Vice-Chairman R. Russell Member H. Roberts Member For the Grievor: Maria Wysocki Grievance Officer Ontario Public Service Employees Union ~For the Employer: P. W. Codner Employee Relations Officer Ministry of Transportation and Convnunications Hearing: March 14, 1985 -2- DECISION The grjevor st:ltcc 1:i.s gricyancr as being ‘I.,.. that I did not receive my pay cheque on due date.” The relief he requests.is that his “pay cheques be received on due date.” At the outset of the hearing, the agent for the Employer,*, raised a preliminary objection to the proceedings, submitting that the issue is not arbitrable. It was argued that nothing in the collective agreement prescribed the date of payment, therefore there was nothing for this Board to deal with by way of interpretation, application or administration of the collective agreement.’ The agent for the grievor asserted that the collective agreement obliges the Employer to make “regular bi-weekly” payments in Article 2.1. There shall be deducted from the regular bi-weekly pay of every employee appointed to the regular staff of the civil service a sum in lieu of membership dues equivalent to the bi-weekly dues of the Ontario Public Service Employees Union. It was submitted on behalf of the grievor that the case involves a violation of Article 2.1 and is therefore arbitrable. In the interests of expediency and fairness, the Board reserved the ruling on the preliminary issue at the,hearing and allowed the parties to :: call evidence and make submissions on the merits of the case. --. On the preliminary issue, the Board has come to the conclusion that the grievance does raise an arbitrable issue. The Crown Employees Collective Bargaining Act gives the Board the power and authority to deal with matters concerning the interpretation application and administration of the collective agreement, S. 19. - 3 - The issue raised by t~his priryancc- concern:, \ihzt, if any, ohij,cation- are placed upon the Employer with respect to the payment of !~a,cr: by Article 2.1. The ans!.:er to this \iill involve the interpretation of Article 2.1. Further, the Employer’s obligations with regard to the method of payments, while not specified anywhere in the collective : agreement, may be considered a matter of administration bf the obligation to pay the wages prescribed in the collective agreement. .Thus, the issue raised in the grievance is also a concern of the administration of the collective agreement. For these reasons, the Board concludes that the grievance is arbitrable and we are therefore prepared to deal with the merits of the case. The parties were able to reach an agreed statement of the facts which gave rise to this grievance: IT IS HEREBY AGREED BETKEEN the parties that: 1. The schedule of pay is bi-weekly; 2. Pay day is always Thursday; 3. Mr. CraIgford receives his cheque through the mail and picked up at General Delivery, Greenbank LOC 1BO; 4. Mr. Cra\;ford in March, 3982 was notified of Direct Deposit option; 5 - . Mr. Crawford had to choose.between mail or direct deposit in writing and he chose mail deliver)‘; 6. Frequently, Mr. Crawford receives his pay cheque anywhere from one day to a week late; 7. He has received it on time twice in the past year; - 4 - 6. There arc thrc,c n,rthods of chcque deliver! in the Plinistry (ljirect deposit, Mail, Hand delivery) ; 9. Mailed cheques are posted on the Tuesda) preceding pay day; 10. In the past year, mailed cheques have been posted on Monday whenever available and delivered to the Post Office late afternoon; ‘!. 11. If an employee has a continui% problem(s) with his bank in relation to direct deposits he has the option of opting out of direct deposit. The “schedule of pay” referred to in the statement of facts is published each year by the Management Board of Cabinet, setting out the pay date and the period of services it relates to for the forth- coming year. The pay date in that schedule is Thursdays, as referred to in the agreed statement of facts. The parties also chose to call some oral evidence. The grievor explained that the late receipt of his cheque on a frequent basis has caused difficulties with budgeting and mortgage payments. He also explained that although he cashes his cheque at a bank which is within one mile from his work and six miles from his home, he, does not want to adopt the direct deposit approach to receiving his pay cheque because he feels the bank is not close enough to his home and his wife does not drive. The Employer’s witness, Mr. Radbourne explained that the cheques are regularly sent out on the Monday or Tuesday preceding the pay date, as soon as they are received from the Treasury Board. Any delays thereafter in receipt are due to the post office. He also explained that it would be practically and economically unfeasible for the employer to hand deliver the -5- cheques to employees in locations other than the larger centres. Thus, the only.real choice the griever has as to box to receive his cheques are thr0ug.h the mail or through direct deposit to his bank. Arguments It was argued on behalf of the grievor that he wants to ,, receive his pay cheque on the published Thursday as opposed to some time after that. Further, the fact that the collective agreement -establishes a “regular bi-weekly pay” implies that the pay be received regularly or at a uniformly recurring time according to a predictable manner. If the grievor does not receive his wages until a week after the due date is published in the calendar from the Management Board, then it is argued that he is being deprived of those wages for a period of time in violation of the collective agreement. It xas submitted that the Employer is obliged to meet pay dates and take steps to ensure delivery by those pay dates. Further if the employee has a choice of how to receive payments, he should not be disadvantaged by his choice of receiving the cheque by mail. This Board was asked to order the Employer to take corrective steps to ensure that the cheques arrive on the pay date as set out in the, calendar. On behalf of the Employer, it was argued that the. collective agreement creates no obligation to provide a pay cheque ofi a specified pay date. The Employer has provided an option to employees to choose mail delivery or direct deposit. Since the Employer cannot be responsible for postal delivery and cannot control it, it ought not to be considered responsible for ensuring the receipt of the cheques. IVe were also referred to a case of United Steelworkers - 6 .- 7 and Uddcholm Steels Ltd., (1971 1 22 L.4C 419 (lieiler). That cast’ dealt with management’s right to change the method and the timing of payments to employees. The case concluded that nothing in the. parties collective agreement prevented the employer from inst~ituting a change in the method of payment. L., Decision In order for this grievance to succeed, the grievor must show a violation of the collective agreement. The Article that the grievor relies upon is Article 2.1. We agree with the grievor that this creates an obligation upon the employer to provide payment to employees bi-weekly and regularly. However, the evidence establishes that the employer is in fact issuing cheques which are payable every ,w other Thursday. In addition, these cheques are consistently sent out by mail on the preceding Monday or Tuesday or delivered personally to ~~ employees or paid into their accounts on the pay dates, being Thursdays. The collective agreement does not explicitly require that payment be received by a specified day. The publication of pay days by Elanagement Board is not part~ofthe collective agreement. It may ~~ create an expectation at pay dates that employees rely upbn, but it does not’create an absolute liability on the Employer to ensure personal delivery to employees on that day. What the Employer has done in this case’is to take all ieasonable measures to ensure pay cheques are received by employee’s on or before the published pay days. ,.. - 7- F r Employees in the position o f the gricvor have the choice of receiving these cheques by regular ma il or via direct deposit into their bank accounts.Barring unforeseen foul ups, the direct deposit system xi11 regularly result in the payment reaching the employee on the designated day. When an employee chooses to receive his cheque by mail, he must be seen to be accepting the risks of delay and inconsistency that ‘(. has become too well known in our postal system. Surely it is impossible to hold the Employer to be in violation of a collective agreement when it regularly issues bi-weekly pay cheques and the only reason the cheques do not reach the employee regularly and on the designated date is due to the fault of the postal system he has chosen as his ‘method of delivery. That system is beyond the Employer’s control. Even if the cheques were issued and mailed earlier as the grievor suggests, this will still not ensure the delivery on or before the designated pay day. Alternatively, even though hand delivery of the cheques might ensure receipt on the designated day, nothing in the collective \ agreement requires such delivery and this Board certainly does not have the authority or jurisdiction to order such a thing. It was urged on behalf of the grievor that the mailing~~. of the cheques ought to have been done in sufficient time to ensure delivery by the due date. But inevitably one asks how much time before the pay date should this be done. Two days? Four days? A week? Two weeks? Or a reasonable time? It is common sense and common knowledge that the date of delivery of any mailed letter is subject to variation for many reasons.. But the one day that can be easily and definitely established and determined is the date of mailing. In this case, the Employer has established on the agreed facts that ,: -8- . it mails the cheques regularly on or before the Tuesday preceding the pay day. It does this in the hopes of delivering the cheques to the employees by the designated ,.: pay days. However, the fact that the cheques may not &rive on the designated days is in no way the fault of the Employers. Finally, the Board feels compelled to comment upon the nature of this grievance. The grievor claimed that he chose not to receive his cheque by direct deposit because of his perception of the inconvenience it would cause him and his family. Yet he admitted that he lives and works within six miles of the bank and in fact regularly cashes his pay cheques at that very bank. Further, he claimed that the fact that he received the cheques irregularly causes him difficulty in budgeting and mortgage payments. However, these problems could be immediately remedied with the acceptance of the direct deposit system. We agree with the theory of the submissions made on the grievor's behalf that his choice of the method of receipt of his pay cheque should not disadvantage him. But any disadvantages that have resulted are either of his own making or the result of the fallibility of the postal system. ~None are the fault or the responsibility of the~Employer. - 9 - In summary, the collective agreement requires regularly bi-weekly payments to employees. The facts of this case establish that this is being done by the Employer. While the Employee may be receiving his cheques irregularly, that is simply because of the method of delivery that he has chosen for himself and is.not the fault of the Employer. Therefore, the grievance is dismissed. .! Dated at Toronto, this 13th day of May, 1985 Paula S. Rnopf, Vice Chairman 2z R. Russell, Member H. Roberts, Member 8 .