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HomeMy WebLinkAbout1985-0780.Davis.86-04-23IN THE MATTER OF AN ABEXIXATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Richard Ci. Davis) and Grievor The Crown in Right of Ontario (Ministry of Consumer and Commercial Relations) Before: For the Crievor: Employer R. L. Verity I. Freedman A. McCuaig Member id. A. Luczay Grievance Officer Ontario Public Service Employees Union For the Employer: L. Bowden Acting Staff Relations Administrator Personnel Services Ministry of Consumer and Commercial Relations February 21, 1986 - 2 - DECISION In a Grievance dated August 2; 1905, Richard Davis alleged improper termina t ion of a "renewal contract" for the period May 15, 1985 to requested was compensa At the outse lacked jurisdiction to that the Griever was a September 7, 1985. The settlement ion for lost wages. , the Employer argued that the Board determine the matter. It was contended student employed during his regular vaca- tion period, .and as such he was specifically excluded from the grievance and arbitration procedures by the exclusionary definition of "employee" as contained in Section l(f)(v) of the Crown Employees Collective Bargaining Act. At the Employer's suggestion, the Board proceeded to hear the merits of the case and reserved its decision on the preliminary objection. The material facts are not in dispute. At all relevant times, the Griev.or was a student in regular attendance at the University of Waterloo. In February 1985, the Griever applied for a position with the Ontario Securities Commission where he had been employed two years previously. Subsequently, he was hired to the position of “Filing and Mail Clerk - Group 1 (Classification - Clerk 2 Filing) for a period from Apri 1 to May 14, 1985, at a salary of $305.26 per week. Under 1, 1985 the - 3 - “I employment contract, the Griever was a Public Service employee and was included in the bargaining unit. The Ontario Government issued a new student employment I policy in February, 1985. Subject to several exceptions, the new student policy provided for payment at the Ontario minimum wage, then $4.00 per hour. That policy applied to both co-op students, '. who alternate periods of work and study as part of a formal .’ co-operative educational training program, and regular students who are employed by a Ministry during the student's regular vacation period or school break. In previous years, the Ministry had paid students who worked In the summer at the actual job rate. The Crievor was gfven a second employment contract in 1985 for the period May 15 to September 7, also at a salary of $305.26. That contract contained the following material provi- sion: “This agreement will terminate on September 7, 1985 OR earlier by either party giving reasonable notice of such intention (Minimum is one week's notice)" In all likelihood, the Griever's remuneration would have gone undetected had not the Griever's mother, Mrs. Carolyn Davis, (a permanent Ministry employee who also worked with the Ontario Securities Commission) corresponded on June 27 with - 4 - Personnel Standards Manager, 3. H. Davidson. Mrs. Davis' letter alleged that the Ministry had improperly deducted income tax from her son's wages. As Mrs. Davis stated in her letter: 1, ,..The income tax was withheld at source in error...As a full-time university student, Richard needs his money this summer and fall for university, not in April 1986 when he will have graduated..." In late July, the Ministry adopted the posi tion that the Griever was being paid at the wrong salary rate. On Duly 24, 1985, the Grievor was advised in writing that his contract with the Ontario Securities Commission would be terminated July 31. No at,tempt was made by the Min paid to the Griever. stry to reclaim any monies already Obviously, the Ministry still wished to retain the Griever's services. The Ministry insis t ed that the Griever sign a third contract at an, hourly salary of $4.00 per hour for the period August I;1985 to September 7, 1985. The Griever executed that contract "under. protest”. Subsequently on August 27, the Griever left the Ministry for the purpose of returning to University. The Employer called one witness, namely Leon Dorff, the Ministry's Manager of Personnel Services. He testified that the quantum of payment for students employed in 1985 was a substan- tial departure from previous practice. Mr. Dorff stated that the - 5 - Ministry employed approximately 100 summer students under the nen policy in 1985. Errors in compensation payable were discovered in two instances, and promptly rectified early in their employment contracts without incident. In July, 1985, Mr. Dorff instructed personnel officers to adjust the Crievor's salary in _ accordance with the new government policy. Mr. Dorff was unable to explain the delay in detecting the error. Similarly, he was '. unable to explain why the Crievor had been employed initially at the higher salary rate in light of the Ministry's knowledge of the nen government policy dent 1985 farm to hi Richard Davis testified that he was a third year stu- in environmental studies at the University of Waterloo In He had worked during the summer of 1984 for his uncle on a and had earned $6.00 an hour. In 1985, the Crievor returned s parent's home In Burlington after he had accepted the position with the Ministry. He testified that he commuted daily from Burlington to Toronto by Go-Transit and incurred a weekly travel expense of 535.00. He also stated that he relied on the negotiated salary to assist him in clothing expenses and travel costs and to pay for University expenses. He acknowledged awareness that other students were paid at the minimum wage, but that it had come as a total surprise to him when his contract was terminated in July, and his rages were reduced effective August 1. - 6 - The Employer’s primary position was that the Board was without jurisdiction because the Griever was a student employed during his vacation period, and accordingly was excluded from the definition of “employee” under Section, l(f)(v) of the Crown Employees Collective Bargaining Act. Alternatively, Ms. Bowden argued that Management had the right to correct an obvious .admin- istrative error inthe absence of any detrimental reliance by the - Griever. The Union contended that the status of an employee is determined by the nature of his or her employment and that the Board had jurisdiction to determine the issue. Mr. Luczay alleged that the Employer had unreasonably terminated the Grlevor's contract on 3uly 3~1 and was estopped from changing the employment relationship as of August 1. On the merits of the preliminary objection, the ‘evi- dence is clear that the Grievor was hired to the unclassified staff of the Ontario Government as a temporary replacement for an employee on authorized leave pursuant to the provisions of Section 6(1)(111) of Regulation 881 of the Public Service Act. Clearly the Griever was not hired as a student under the provisions of Section 6(l)(v) of the Regulation. As indicated previously, the initial contract of employment was for the period April 1, 1985 to May 14, 1985 at a weekly salary of S305.26. The Grlevor then entered into a second contract, also pursuant to - 7 - “I Section 6(l)(lli) of Regulation 881, for the period May 15, 1985 to September 7, 1985 at the same salary rate. Section 6(l) and (2) of Regulation 881 reads as follows: “6.-(l) The unclassified service is divided ., into the following groups: 1. Group 1, consisting of employees who are employed under individual contracts in which the terms of employment are set out and who are employed, i. on a project of a non-recurring kind, ii. in. a professional or other special capacity, iii. on a temporary work assignment arranged by the Commission in accordance with Its program for providing temporary help, iv. four twenty-four hours or less during a week, or v. during their regular school, college or university vacation period or under a co-operative educational training program. 2. Croup 2, consisting of employees employeed on a project of a seasonal or recurring kind that does not require the employees to be employed on a full-time, year round basis. (2) Every person who is an employee fn the unclassified service at the time this section comes into force, (a) shall be appointed to Group 1 or Croup 2 of the unclassified service as determined by the terms of I - 8 - employment specified in paragraph 1 or 2 of subsection (1); or (b) shall, if qualified, be assigned to a vacant position in the classified service.” At the time of the first contract of employment, the Ministry was fully aware that the Griever was a student in regular attendance at a University who’would be employed during his summer vacation period. However, the evidence is undisputed that the Griever was not employed as a student. At all relevant times, the Griever was an employee within the meaning of the Public Service Act-and the Crown Employees Collective’Bargaining Act because of the terms.of employment. - As a result, the Griever was not excluded from the definition of employee as contained in Section l(f)(v) of the Crown Employees Collective Bargaining Act, and therefore had access to both the grievance and arbitration procedures. Accordingly, this Board has jurisdiction to determine the merits. In that determination, the Decision of Ross and Ministry of Community and Social Services, 82177 (Adams) relied upon by the Ministry, does not materially assist the Employer. The facts in the Ross Decision bear no relationship whatsoever to the fact of the instant Grievance; however, the rationale of Vice-Chairman Adams is of some assistance by way of analogy. -9- At pages 13 and 14, Vice-Chalrman Adams makes the following general comments: “In contract law this kind of mistake made by one party with respect to terms of a contract is not generally a sufficient reason to vitiate the contract entered into. See Bell v Lever Eros. Ltd. 119321 A.C. 161; Hobbs Esquimault Nanaimo Railway Company (78997 29 S.C. R450. Rather a court of law examines what an offeror has said and ascertains its most reasonable interpretation. Unless the party relying on this reasonable interpreta- tion knew of the offeror’s mistake, the parties are bound by the objective meaning of the words used and agreed to.” . . . “On the other hand, a more industrial relations oriented approach is much less influenced by a technical construction of what was said as opposed to what is the fairest and most reasonable outcome in all the circumstances.” . . . “Thus it can be argued that Mr. Ross is requesting the perpetuation of unequal treat- ment on the basis of an administrative error. Additionally, the Board would note that no evidence was adduced on the griever’s behalf indicating that he’ had detrimentally relied on an employer’s promise that he would continue to be paid at the third step of the salary range. At the time he took the job it is unlikely that he foresaw the precise details of the subsequent increases and relied accordingly. Nor was there evidence that he would not have accepted the assign- ment had the error not been made...” And again at pages 18 and 19: “In situations of this kind we are concerned about the rigid application of the rules of offer and acceptance where no detrimental reliance is established or relied upon and where, potentially, unequal salary payments could arise and create significant workplace - 10 - problems.... Subject to the establishment of 'significant detrimental reliance we think the more common sense industrial relations response should be in the negative. These kind of administrative errors are bound to occur in the context of a large bureaucracy and thus it is not a very realistic answer to say that the employer should simply be more careful....h The Board is satisfied that in the instant Grievance, I the Employer made no attempt to terminate the Grievor"s employ- ment in the normal sense of the word termination. Rather, the ‘. Employer attempted, quite improperly we think, to change the terms of employment and in particular, the compensation payable in order to conform with the government's student employment policy. The Employer may well have made an administrative error in the initial employment contract. That error was compounded by _ entering into a second contract and the error remained undetected. for a substantial period of time. The Board is satisfied that the Griever would not have accepted the position had he been advised of the lower salary payment. Simply stated, he detr 1 provisions initially agreed upon , minimum wage rate. mentally relied upon the payment which was almost double the That fact should have been obvious to the Ministry when it received Mrs. Carolyn Davis' letter of 3une 27. The Board is r - ll- not satisfied that the Ministry made any serious attempt to establish whether or not he had relied upon the original salary arrangement prior to making the unilateral decision to change the quantum of compensation. The fact remains that the Crievor signed the third contract “under protest”. Having ascertained the adminlstratlve error, If indeed it was such, the Employer would have been well advised to have ’ negotiated a release of the second contract prior to entering into a third contract. Failure to negotiate a release could have ended the employment relationship. In our opinion, the Employer has placed itself in an untenable positlon. In the result, this Grievance must succeed. According- lYt the Griever shall be compensated for the difference in salary betneen the 5305.26 weekly salary and the amount actually paid for the period August 1, 1985 to and including August 27, 1985. DATED at Brantford, Ontario, thls BBrd day of April, A.D., 1986. .E 42-Y> 7 R. L. Verity, Q.C. - Vice-Chairman I. Freedman -~ Member &\t! A. HcCuaig - Member