HomeMy WebLinkAbout1985-0488.Union.86-04-250488185
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between: OPSEU (Union Grievance)
and
Grievor
The Crown in Right of Ontario
(Ministry of Community and Social Services)
Employer
Before: P. John Brunner
3. McManus
G. A. Peckham
Vice-Chairman
Member
Member
For the Grievor: J. Miko
Grievance Officer
Ontario Public Service Employees Union
For the Employer: M . Fleis hman
Counsel
Crown Law Office Civil
Ministry of the Attorney General
Hearing September 19, 1985
!
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DECISION
The question raised by this grievance, which is brought by
the Ontario Public Service Employees Union (hereinafter referred
to as the Union) and is dated April 19, 1985, is whether interest
is payable by the Crown in Right of Ontario (Ministry of
Community & Social Services) (hereinafter referred to as the
Employer) on the principal amount of certain late payments of
shift premiums to employees at the Oxford Regional Centre in the
City of Woodstock.
At the opening of the hearing, Counsel for the Employer
raised a preliminary objection as to the Board's jurisdiction to
award interest in general. By agreement between both Counsel,
argument on that issue was postponed until the conclusion of the
entire case when submissions on both the merits
and the
jurisdictional question were addressed.
Thefacts may be summarized as follows.
The Oxford Regional Centre is a mental rehabilitation
facility located in the City of Woodstock. It employs approxi-
mately 850 full time and part time, as well as casual employees,
who work on three shift schedules. Under Article 11.1.1 of the
Collective Agreement, employees who ~work between the hours of
5:00 p.m. and 7:00 a.m. are entitled to receive a shift premium.
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"ARTICLE 11 - SHIFT PREMIUM
11.1.1
11.1.2
11.2
11.3
.It is to be noted that neither Article 11 nor any of the
An employee shall receive a shift premium
of thirty-five cents (35C) per hour for
all hours worked between five (5:OO) p.m.
and seven (7:OO) a.m. Where more than
fifty percent (50%) of the hours fall
within this period the premium shall be
paid for all hours worked.
Effective January 1, 1983, the shift
premium payable under sub-section 11.1.1
shall be forty cents (4OC) per hour.
Shift premiums shall not be considered as
part of an employee's basic hourly rate.
Shift premium shall not be paid to an
employee who for mutually agreed upon
reasons works a shift for which he would
otherwise be entitled to a shift premium."
other provisions of the Collective Agreement stipulate a time at
or a period within which the shift premium is to be paid.
The evidence is that over the past several years, employees
at the Oxford Regional Centre have received their shift premium
entitlement within approximately one month of the date that they
were earned. However, this has not been the uniform practice of
the Employer. Employees at other institutions are paid at various
frequencies which range from once a month to twice in one year.
I
Shift premium calculations at the Oxford Regional Centre are
made by a financial officer and two full time clerks. However,
payment must be requisitioned from offices in Toronto where
cheques for this and other employee benefits, as well as salary,
are prepared and then delivered to the financial officer.
The evidence is that there was a substantial delay in the
calculation of shift premium entitlement for the period November
19, 1984 to February 24, 1985. They were not completed until
March 13, 1985, when the requisite forms were forwarded to
Toronto. However, payment was not made until April 18, 1985.
The reason for the delay was that the financial officer and
his staff were most pre-occupied with the processing of a
substantial retroactive salary increase that the Employer and the
Union had negotiated. Under the terms of the.settlement, payment
of the increases had to be made by February 6, 1985, in default
of which, interest on any unpaid amount became payable by the
Employer. High priority was therefore given to the matter of
salary increases and other work, including that of the calcul-
ation of shift premiums, was delayed. However, employees were not
requested to work overtime and no part time or casual employees
were trained and assigned to any of these tasks.
Complaints by employees and Union representatives were
periodically made, but as we have stated, the shift premiums were
not received by the employees until April 18, 1985.
On these facts, we turn to the question whether the Employer
is liable for interest on the principal amount of the late shift
premium payments.
The general rule is that interest is given by law in the
following circumstances:
1. Where it is stipulated for by contract,
express or implied;
2. Where it is provided for by statute or by
rule of Court;
3. Where a custom or a trade or mercantile usage
c.alls for it;
4. As damages for breach of contract:
5. For the wrongful withholding of money; or
6. Where the payment of a just debt has been
improperly. withheld and it seems to be fair
and equitable that the party in default
should make compensation by payment of interest.
See generally 8 C.E.D. (3d). "Interest on Debts”, pages 43
and 44, Dominion Chain Limited v. Eastern Construction Limited,
(1974) 3 O.R. (2d) 481 (H.C. of J.); 12 O.R. (2d) 201 (C.A.):
I19781 2 S.C.R. 1346 (S.C.C.).,
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As we have already stated, there is nothing in the Collec-
tive Agreement which stipulates a time at or a period within
which shift premiums must be paid. Article 11, which deals with
the subject matter of shift premiums, is completely silent on
this subject. This is to be contrasted to "overtime" which by
Article 13.3.2 must be paid within two months of the pay period
in which the overtime was worked. It is accordingly clear that
the late payment of the shift premiums did not constitute a
breach of any express term of the Collective Agreement. It was
not contended by Counsel that a term should be implied requiring
the payment to be made within a reasonable time from the date
that the shift premium entitlement arose. Accordingly, it would
not be proper for this Board to address this question. However,
even if we were to assume without deciding, that such a term
should be implied, we are satisfied that in the circumstances
there has been no breach. The payroll department was confronted
with an unusual situation, the result of recent negotiations
between the parties which required the calculation and processing
of retroactive pay increases for hundreds of employees. By the
terms of the settlement, this had to be effected prior to
February 6, 1985, on pain of the payment of interest. In the
circumstances it was reasonable for the financial officer and his
staff to give priority to the question of salaries and leave the
processing of shift premiums to a later date.
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On the evidence before us, we are not prepared to find that
the delay jn the assembly of information and the calculation of
the shift premiums until March 13, 1985, was unreasonable and
constituted a breach of such an implied term. As to why it took
until April 18, 1985, for the cheques to be.delivered to the
indiviaual employees, there is really no explanation. However, it
appears from the evidence before us that a period of three to
four weeks for this process was not unusual.
Accordingly, we are of the opinion that the late payment of
shift premiums did not constitute a breach of any express or
implied term of the Collective Agreement.
It was not seriously contended that there was anything in
the Collective Agreement which stipulated for the payment of
interest or that it was so provided by any statute or rule of
Court. There is certainly no custom of trade or mercantile usage
which is relevant.and as we have said, there 'was no breach of the
Collective Agreement and for the reasons expressed, no "wrongful"
withholding of money. Nor is this a case where the payment of a
just debt has been improperly withheld and it seems fair and
equitable that the party in default should make compensation by
payment of interest. Accordingly, as a matter of law, interest is
not payable and there is no liability for it on the part of the
Employer.
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Before leaving this matter we should state that we have not
found it necessary to address the question of the jurisdiction of
the Grievance Settlement Board to award interest in an appropri-
ate case. Nothing in these reasons accordingly should be taken as
an expression of opinion on this matter, which in our view should
be left to another day when the issue squarely arises.
For these reasons, the grievance fails on its merits and is
dismissed.
DATED at Toronto this 25th day of April, 1986.
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R, VICE CHAIRMAN
(dissent attached)
J: MCMANJS, MEMBER i-7
G. A, PECKHAM, MEMBER
OPSEU (Union Grievance)
and
The Crown in Right of Ontario
(Ministry of Community and Social Services)
DISSENT OF UNION NOMINEE
I disagree with the majority decision.
The Board ought to have decided that there was a breach of
an implied term, said term requiring the payment to be 'made
within a reasonable time from the date that the shift
premium entitlement arose.
On the evidence, it is clear to me that the Employer did not
make a reasonable effort to overcome the workload problem in
the payroll department. As the majority decision states
" . . employees were not requested to work overtime and no part
.time or casual employees were trained and assigned to any,of
these tasks."
I would have upheld the grievance and awarded interest.
For future cases,1 think it is important to note that the
majority decision does not rule on either the broad issue of
implied terms or on the question of jurisdiction to award
interest