HomeMy WebLinkAbout1986-0777.Sabo.88-12-14z -3
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’ ONTARIO EYPLOY.3DEU CO”RONNE
CROWN EMPLOYEES 0E“0NTA#?I0
GRIEVANCE CPMMISSION DE
SETT’LEMENT REGLEMENT
BOARD DES GRIEFS
I80 0”NOAS STREET WEST, rORuNT0, ONTARIO. MSG ,,?a _ SINE ZlW IELEPHONEITzkbWONE
,80. ROE OUNOAS OUEST, TORONTO. ,ONTArUO, A450 Ii% -B”REAUZlW ,115,598-w.3
777186
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between:
OPSEU (Irene Sabo)
- and -
. . The Crown in Right of Ontario
(Ministry of Community and Social Services)
Before: N. V. Diss&ayake Vice-Chairperson
WJ. Shipman Member
H. Roberts Member
For the Grievor: R. Ross Wells
COUl-lS.?l
Gcwling & Henderson
Barristers & Solicitors
For the Emoloyer: Michael Milich
Staff Relations Nranch
Human Resources Secretariat
Grievor
Employer
HEARINGS: September 30, 19@8
October 7, 1988
/
The grievor, Irene Sabo grieves that her poslclor.
of liaison clerk is improperly classified as Clerk 5
iGeneral1. I T. the written crierance. she re;ufsts?
that her position be "reclassified iz a l:cTE ?l-"~'iI'
classification with full retroactivity and iexE-fits 1
e.g. Clerk 1 (General) or Executive O.fficer " I.
HOWEVER, after the evidence was completed, counsel fsr
.
the grievor abandoned the ciaim io a Clerk 7 (Gend-a':)
classification and took the position tnat the griercr
did net fit into the Clerk General Series a: tll.
Tne grievor testified on her own behalf. Tne XlY
evidence for' the Employer was adduced by Ms. !,;ary Mann,
a Senior Ruman Resources Represenrative of the .h:inlstry,
who' was responsible for the classification of the
grievor's position.
The grievor has been employed by the !Jinistry since
September 1, 1974. Since Zune of 1480 she has held the
position of Liaison Clerk with the Kinistry'.s Income
Maintenance Unit. . Sometime early in lCS1, the grievor
was assigned to duties with respect to the Repatriation
Program. The grievor's position had been classified as
Clerk 5 (General) since March 1, 1977. This
classification continued after she assumed ti'ltles with
respect to the Repatriation Program. Herein iies the
. GIsprte. The' grie;or claims that her duties in the
Repatriation Program takes her out of the Cierk 5
(General) classification. She seeks a proper
classification and proposes that her position besr fits
1ntc the Executive Officer I classification.
In a case such as this,, it is.incumbent upon the
grievor to establish that she is improperly classif+ed
as Clerk 5 (General). The class definition for Clerk 5
(General), excluding the section setting out the
qualifications, is~ as,follows:
&E_R_K '5, GENERkL _-._.-.-,-.-
CLhSS D'&PINITION
Employees in positions allocated to this
class perform responsible clerical work
requiring detailed knowledge 0: a body 'of
regulations, statutes or local practices,
together with a thorough understanding of the
objectives of the work ,unit. Decision-making
involves judgment in the interpretation and
application of policy or administrative
directives to problem's where. the i.ntent.of
existing instructions is obscure in specific
cases. This frequently necessitates modifying
work processes or the development of. new
methods. although the work is carried out with
a large degree of independence, it is
reviewed for consistency of decision-making.
Difficult technical questions, or those
involving policy determination are. referred to
supervisors.
Tasks typical of this~ level include
responsibility for a significant non-
supervisory, clerical, or clerical accounting
function involving the interpretation,
explanation and application of a phase of
4
departmental legislation or regulations and
requiring the ability to make acceptabie . recozmenaations or provide functional advice:
supervising a group of "journeyman cierks"
performing clerical duties of varying
complexity of a smaller group engaged in more
specialized work by planning., assigning and
reviewing work, deciding prlorltzer,
malntazr.inp production levels and carrying
responsibility fcr the total performance of
the unit.
The grievor's testimony about her duties and
responsibilities remain uncontradicted in that no memby
of management testified. Based on the evidence, the
Board makes the following findings of fact.
The Repatriation Program is operated pursuant to
section 15(4) of the regulations under the General
Welfare Act, which provides for special assistance for,
inter alia, "The cost of travel and transportation".
Is practice this special assistance is available to
individuais who are either seeking to move, to Ontario
from another province or from Ontario to another
province.
The Ministry's manual of policy and pr,ocedure
(dated April S,, 1983) provides as follows:
repatriation to another province or
country must first be cleared through the
Income Maintenance Unit (telephone (416) 965-,
5137) and will be considered if it is at the
request of the individual and if the move is
in .his or her best interest. The Income
5
Maintenance Unit will contact the receiving
prov:ccc for approval and will advise the
Welfare Administrator of the decision.
The evidence is that this is the only written
g.Aidance cr dir~ective that was availablE relating ts th?
?.cpatriatioc Drogram. The telephone number thaz appears
in the above excerpt from the manual was at the time the
grievor's teiephone number. The grievor conceded that
when she first-took over responsibility for the program,
two of her predecessors showed her how they did their
work. and that she followed those procedures with
modifications to deal with new and different
situations. Her task .was basically to decide the
eligibility of applicants for special assistance. In
deciding- eligibility she had to determine whether the
proposed move is.in the best interest of the individual.
The Board heard considerable evidence as to what facrcrs
she took into account in deciding whether a pr~oposed
move is in the best interest of the candidate. However,
it is unnecessary to review that evidence.
Sometime in late 1983, the grievor's supervisor
asked her to reduce into writing the procedures she
fol1owe.d in dealing with repatriation requests, fcr use
by.employees who replace the grievor in her absence due
to illness or vacations. Early in' 1984 the grievor
prepared a "How to" book which set out what kinds of
problems to expect in dealing with repatriatio- .I
requests and how to deal with them.
A request to move 0uIc frorr Or.rario may ori;inace
from: a Municipal Social Welfare Office or a hostal in
Ontario. When a request is received, the grievor seeks
out information such as the reasons for the proposed
move, where~ the person wants to move,, the ap;licanr"s
personal information~ and the name. and address of .a
.cont-act person in the location where the applicant
proposes to move who can assure temporary accommodation
,for the applicant. With this information in hand; the
grievor decides whether the applicant' is eligible for
special assistance. If she decides that the applicant
15 not eligible, that decision is conveyed \to the
applicant and that is the end of the matter. If the
decision is that the'applicant is ellginle, If cnere 1s
an urgency the grievor calls her counteroar: in the
governner,t of the receiving province and provides tne
information, so that that province can decide whether to
accept the individual or not. If there is no urgency.
the information is sent to the receiving province
through the COMSOC General Services Office. The
evidence is clear that if the grievor in her judgement
decides that the applicant is ineligible, the receiving
7
I pro:-incE wiil not ever. become aware of that particular
a;piicarion. It is equally clear that the griever xade
her decisions on her Own
and did I-J 0 t report her
decisions to any supervisor. NO?Z was there any revi2w
cf her decisions.
In relation to applications for special assistance
from persons seeking to cone into Ontario. the grievor's
role is reversed. She gets information from her
counterpart in another, province. She assesses whether
the ,ap?licant would have special needs such as nursing
home care or child welfare. If the situation is not
complex the grievor would.make inquiries to confirm the
infornation provided. This includes contacting the
cobtact person in Ontario named in the application to
confirm that the applicant wili have a place LO stay
temporarily. If everything, is in order, the grievor
decides that the applicant is eligible. Surprisingly,
_ the evlaence is that in'mos
0x1~ verbally. If there are
may enlist the assistance
t cases the approval is cade
conplicatiots, ths grievor
of an area office of the
binistry. Most often this is done where the contact
persoz in Ontario cannot be reached by telephone. Theri
the grievor gets someone from the area office to visit
the contact person.
a'
0~ A~amst. 5, 1961. the crievor wrcff the fFcll0Wir.C
me?crandzn: to th,e then Manager cf the Inccme Xaictenance
iy+t:
P.E : Tia'son Clerk Pcsitio- .--A-- -II
Iz i-.as T.OW be2n fourtees rr.9nt.i.s zin:e I first
ro;ar. ::le =CC*J= ;csiri-,.
Kouid ic be now possibie, please. t3 r,sve az
xs5essn:e.r.t done cn:
1: my own performance of the duties involved
in zhe abcve position:
2 ) ~i2e future career potentih-, ii any, of
the above position. Some of the t
prod sediproposed changes have nor come about,
e.g., the "phase-out" of the O.H.C. function.
Since the Guidelines that were to be o??t
FttiEl are still not out, this is likely r.ot
to come .about very quickly:
3) the~classification of the above position.
An old refrain, I knoV. stili 4 contentiocs
point. Is it to remain a Clerk v General?
Iti x%uld be good to have some cf the above
clarified.
Thank you. ‘J
She received no ~written response to the
cezorandur, but was verbally advised by r,he banager that.
hE "will se2 whar can be done". On Zanuary 15, i9i~3 a
poeirion specification WilS issued fcr the grievor ' 5
position. It xas agree2 at t h e hearing t.Qa: tzis
position specification was subszantialiy lnzc~urz~s.
The grievor signed it under protest. Ms . Mann undertook
a position audit with a view to preparing an accurefe
position specification and notified the grievor by
.
9
1erzer dated February 4, 1981. In <?.a: zhe fol
undertaeing was made:
.:ow
An audit cf ycur position duties will be schedu'e" in . 4 not less than 4 months and net
more thar. one year from the date you commence
y-cl?r new responsibilities. >.t that time we
will ascertain whether your position
5rscr;ption accurately rcfiects the fx.ct:zlr. yc'; ar+ cc:-ally performing.
BY letter
dated February 14, 1983 the gri
This is in response to your letter of February
4. 14S3. Mr. John' Stapleton, Manager,
Programmer support Section, Income kiaintenance
Unit, and I have .had a di scussion concerning
the duties of my position being transferred to
his Section, and the new position description
involved.
As you may recall from our own discussion
earlier this month, the duties I have been
performing ups to now, .and the duties and
-equirements 'e contained in this new pcsiricn
descripticn are not wholly congruent. Only
2@% of the description relaters to my current
functicns. About 70% of it described duties
that were previously performed by an employee
whc was declared surglus last summer,
apparently because the functlocs she was
perfo rming would no longer be needed in the
Eranch. Sane reconsideration of this appears.
tc have taken place when this .job descripCicz
was drafces.
Because of the above, the scheduled future
auEiting ,cf my position ,is a nmst k'eicoztd
prospect. Since joining the Income
Maintenmce Unit, on June 1, 1980. I have
requested such an audit or evaluation of the
functions I have been performing, both
verbally and in writing. These requests were
made to both the previous Manager of the Unit,
Mr. Graham Mudge, and to current Management
staff. There was no response to any of these
requests. Based on the discussion with Mr.
I
,ing
Stapleton. I hereby accept, without prejudice
tc any grievance rights, the'pcsition with his Sectioc.
Incidenzly, for your information. the position
requires a knowledge of the General Welfare
Assistance Act as repatriations are done under
tr.0 Suppiementary and Speclei Assastazce
FrCVlSlCnS of this Act. The position
description contains numerous inaccuracies and
omissions, some -fortunately minor. But we
shaLi deal with that within four months time.
Berhaps at that' time a rational and accurate
review will be performed . . . and I may be
allowed to add some direct input to it.
Thank you. for your offer regarding questions
and ccncerns that I may have -- I may take you
up on that. Certainly I will keep in touch.
The audit commenced in June 1983, and at a meeting
with the grievor on October 25. 1984, Ms. Mann discussed
the results with the grievor. On or about November 18.
1984. the breakdown ~of the grievor '5 functions was
identified by Ms. Mann. A new position specification
was ultimately.prepared and presented to the grievor on
June IO, 1986. The grievor agreed with this new
position specafication as far as the duties and
respcmibilities were concerned. !iovever, her position
.contxnued to be classified as a Clerk 5 (General 1 . TwC
days later, on June' 12, 1986, she filed the present
grievance.
Counsel for the union maintains that the grievor's
job does not belong in a Clerk 5 (General)
classification for three major reasons.
11
(a) The grievor. had no written policy or
adkzistrative gcidelines to assist her as contemplated
by zhax class definition.
!“! The grievor's duties entailed nor clerical
functiocs bet the making of, adnizistrative decisions.
:c1 there was absolutely no supervision or review
Of the grievor's work as envisaged in the class :
definition.
Counsel for the. Etiployer submits that a written
pciicy existed in _ cne regulaclons and 012 Kiniszry's
7 mar.ua.i . ilc submits that while the grievor did make
_ ceclslors, those are the types cf decisions encompassed
ir. The Clerk 5 (General) definition. Cocnsel conceded
that the grievor worked independently. Eowever, he
submits that the absence of revcew may be the result of
the' high competence level of an employee and the nature'
cf the decisions the employee makes. He relied or. D>iz
Fraser, 410/83 where the Board upheld the Clerk 5
(General I classification despite finding that the
grievor's decisions were seldom reviewed.
,
I
12
hs far as special assistance for travel and
rransporta'ion is concerned, the. griever was the only
person in the Ministry's Income Maintenance Unit wh3
n!ade any decisions. Fcr persons applyins to come to
2nrar2; th2 decision is soieiy f 3 e ;r;evors. T,:lr=
evidence is clear that even in situations where she may
enlist the assistance of the area welfare offices; their
role is simply to verify information. The decision is
still made by the,grievor. For outgoing applicants she:
only decides whether the applicant should be referred
to the receiving Province. Nevertheless, her role is
significant in that unless the applicant is approved by
her, he or she does not even get referred to the
receiving Province. In other words, the applicant will
have no way of obtaining special assistance from that
province without first being approved by the grievor.
The Board is also of the view that in exercising
her decision making authority, the grievor had very
ainin;al guidance by way of poiicy or administrative
directives. The regulations and the two 'pages in the
Ninis try !Canuai provided Z-LO assistance than indicate
that " the move must be in the best interest of the
applicant. While the grievor received instructions from
her predecessors about how they performed their work.
13
~.there is no evidence that the predecessors had any
Einisterial directives either. Besides, the grievor
testified that she developed her own ways of dealing
k-it?. applications. as she CST..e
across new sitnatiox.
ATart frolt the one or two weeks wher. her empl0yzer.t
overlapped with that of her predecessors, there is no
evidence that the grievor ever received any counselling
or advice in coping with her work.
It is very significant that the evidence is.
absohteiy clear that there was no supervision or review
of the grievor's work.
Once she makes a decision zh
relation to an appiicant, that decision is not reported
to any superior. In most cases her decision is merely
ccnveyed verbally to the applicant. In our view the
Diane Fraser decision is distinguishable. There the
Board found that the grievor was "involved with routine
procedures and there would be little cause for review Of
her work". The same is not true here. The grievor he‘re
made decisions on behalf of the province, decisions
which wouid involve the use of public funds and having a
profound inpact on individuals' lives. Therefore the
rationale in the Fraser case is not applicable here.
Having reviewed the Clerk 5 (General) class
definition, the Board is of the view that, the core of
e,c c:;-r): 5 !General) clessificer5on. i.; c c a :: :: ; r k ; :. + =
k.ich the Er;?lcyer's submission that K5.e decisi0r.s x2?:
by her are of a clerical nature. 3n the crnrrary, tr.oz-
ie=isior.s 3t'e - 0: a r; administrerive na',ure. They z:c
mace independently with no consul:aticz with a7.y c-,.:.51-
Ministry staff and with hardly any assistance by way cf
&olicy or administrative directives. It is unusual fcr
a clerical decision to be not subject tc at least soze(
supervision or review, as was ,the case here. Z.ven !ls .
Mann conceded that in her audit she could not find any
supervision or review whatsoever of the grievor's wcrt:.
The Cierk 5 (General) definition clearly conteapIa:;s a
much greater degree of guidance and directicn. It als:
explicitly sets out "review for consistency" 2 E Sl
cnarcc.terist:c c: the Cierk 5 iG.enerelJ Joe class.
L;.:isior. is reinforced by !CS . Xar.r.'s cvi.iun:e tkrr 2:
ihe time she decided that the griever's job l&as a ~~.;;;'.
5 (General), she was under the belief that t,"e grii:':zr-
did not make decisions in relatio:. to 5pplicazioLs fcr
special assistance. She conceded that the evidir&cs
showed that she was wrong in that regard, altk:5:qk Shi
was not ready to admit that‘she would have different11
classified the grievor‘s job if she had the accurate
information.
is of the view ttiet that job cl'ass envisages
adxicistrative or management functions of a higher levei
thx? that exercised by the grievor. That.definition
(qualifications omitted) reads as follows:
This class covers positions involving
responsible . acmxiistratiye or cffice
-\ar.agement duties, usaall~- as assisterit to a
Branch head or to the Deputy Zinister of a
small depart:r:cnr. It calls for t!?e frequenr:
2pnilcation of intiepenlert ;~rCger;ezt erlc:
initiative k'z,thin defined lizits.
ii:lere Cirec: saperviscry resp?nsibilitFes
are mt a ma jcr feat,;:+2 of ~h-2 work,. t.'.e
eagicyee h'iil deveio? procecures reqllired to
Lr.;iement legis;a;ion and ra~~ii3tiozis, and
will exercise sucn adzlnistrrtive z-tbority a- ;
his. c!:ier may delegate. UC3 may make
administrative studiss. 0r;anize:lcnil reviews
and carry OUT various assignments cf a
consultative, investigating or ,confidectial
nature.
16
b!here supervisio" is the decisive factlcr
in the work, the individual iS reSF~cr.SikJle for
the organizqtion. assi;nnent an:! supervision
cf tasks to a nczber cf clerks or technical
en?loyees ir, a section of a branch and fcr tke
detailed interpretation 0:
policy and
1e;isiarion. Eis wcri: is usuaiiy subjecr only
KC general supervislon, airLough his
xstructicns m2y e: tizes 3e spec; fit zni
dc-,aileE.
:.s assistant to the heat oft a braze?, or
instiKc:ion, czrr1es OU' .assl-;Yled research
SKULiES, prepares repjorts ir;d informational
zazerial end handles delegazed a??.inistrarive
details ~such as the preparation and
a3inistration of office 0,’ instzituticnal
regulations. and. proCedUreS. Kay act for the
bra.?ch head in his absence.
Carries out field investigations in
departmentS operating district' Offices. In
order to ensure that effective controls by Head Office are being ,exercised.
Enters into agreements with the public as an official representative ~of the Government for
the procuring .of leases, rlghcs of way,
properties and insurance ane for Khe sale of
la;lti and ccher assets.
Acts as Executive Secretary to adninistrative
boards and commitrees.
As office manager or chic: clerk of a se-tion
cf a brarich cr coswission. gl+ns assigns a:L
reviews the w3r.L. .5f ep.;ioye;-s ir,;zjei in TL;.t:
cc~llicticn of revenue, the assignmeEt Of
pensions, or the providing of important an?
essential services as prescribed by
legislation.
performs othcr.related work as rewired.
A review of the evidence relating to the grievor's
duties and responsibilities shows that they do not for
-
17
mcst part. fit wir,hin the Executive 9fficer I job class.
T?e fact that the Employer did not make an slterpate
proposal is not surprising because it was zhe Emnloyer's.
pcsiticn that the grievor was progxzrly classified a.5
Clerk 5 iGeneral>. Therefore, we decline to direct that
z.25~ L:r~~v3r oe ciassified as Executive Qffice I.
The ap;ropria:e remedy in these circumstances,
w&.e x e have found the grievor to be lmprogerly
jiassified, but find that the only jcb class proposed by
r.k.r grievor is equally improper, is a direction as per
the srr y et al. decision. Accordingly, the Board
directs that the Employer
properly classify the
grievor's position, eitherin an existing classificaticn
or by creating a new classification. The Board remains
seized Of jurisdiction of the issue Of 'proper
classification of the grievor's position and in relation
to any difficulties the parties may encouriter in the
interpretation or implementation of this decision.
Coxsel for 'the unior. submitzed that long delays
a-e encountered 122 inplementlng Board directions tc
FrCrerl>f
classify and that therefore the Board should
tlrect the parties to attend befcre the Board 60 days
after the decision is issued t,c resort on the progress
of the reclassification. We do not see a necessity for
:
non+torlng rc;e fcr rhe Itoard. The Board
its direct~icns will be complied with in
go35 fzith as expediently as possible. Since the
Ecard has retained jurisdiction, the remedial issue ~r.3~ -_
be referred back to the Board if efforts to reclassify
rt2:t a: ic>,essc. or if the ElT?Loyer is fai1ir.c tc '3t
L.: ;so,f fait?. in implementicc this decision.
Once the proper classification for the grievor's
pcsitlon is determined'pursunat to this decision, t 11 e
c;uesticn remains as tc the extent cf retroactivity Of
Kkr nev clessifi-atio- c I.. The porr:es dzsai;ree ci n : r, :
effective daKe cf retroactivity. CoLlnsei for i 3 e
y;z\,or recogzizes chat as. a gezerai rule ,. the 3:arci
awards retroactivity bark to 20 days frcn: the daKe cf
t>*:; 'iling of the grievance. (See, g.?SEZ ;r;z -: z -.-l
i.ilr.iSK-.. Of the bttcrnev 7 ---.------ Ger.ersA, 71,‘76
:Beattyi
Eowerer , he points out that t;?e board Las raco~:izEZ
e:;ceations to this general rule and ccntends that this
case clearly falls within tk.ose exceptions. COLZSSl
pcints to the evidence that the grievor ra!is*:d 5cr
classification complaint as early as hgszst 5, 1901. 12.
1-023 a position specification was prepared by the
Bn3lcyer. which was compl,etely icaccnrcte. The grievor
signed it. under protest and the Empicyer undertc;ok tc
carry. cut a Job audit with a view to comir,g up with 2:.
19
accurate job
description "nor less than 4 months and
r. 0 K .zire than one year" from the date the grievor
commenced her responsibiiities with respect to t?.e
Repatriation Program. On February'l4, 19&3, the grievor
j:_r c c & -- 0 zh2 k;ioyer welcoming the decision to do a jcb
audit and accepting the position on that understanding
@'without prejudice to
any grievance -rights", The
EI:.plOyez did not complete the job audit process within
t,he promised time
period and a new position '
specification was not prepared until June 10, 1986.
Despite having an .accurate position specification the
grievor ' s position remained as a Clerk 5 (General) .
Two dajls after the. new position specification w~as
issued, the grievor, filed the present grievance.
Cox-isel submits that as soon as the grievor first
assumed here duties in the Repatriation program, she put
lrrK2 CoT.tfCtlOn the question of her classification and
confirmed it in writing in August 1981. When the
haloser undertook, to carry out a job audit the grievor
agreed to cooperate and decided to defer exercising her
right to grieve. It was her decision to allow the
Employer to review her position specification; and based
on it, the appropriate classification. Counsel stresses
two points. First, the grievor at no time waived her
complaint regarding the classification issue since she
first raised it in 1981. Se'cond, none of the delay
(between 1981 and 1986: i n preparing a new position
specification can be attributed. to the grievor. 03 the
contrary, the Employer is
solely responsible for the
del2.y.
Counsei for the Employer submits t ;h a t the Board
sno~s:ld note depart from the general " ~,j day
retroactivity" rule. He contends that for the Board to
award greater retroactivity, it is not sufficient for :
ti-si union to show that the grievor at some earlier point
raised a classification complaint with the Employer.
Theie must be a representation or agreement by the
Employer that the grievor was' lm~roperly classified and
an undertaking to reclassify. He points out that the
evidence does not disclose any such representation or
under-raking, express or tacit.
In Booper 47/77 (Swan) the Board stared:
The question next arises whether whatever
remedy is appropriate should be from the date
identified by the evidence as th2 time when
the grievor first commenced his "camaalgn" for
reclassification in earnest, September 1,
1075; or the date of the filing of the
grievance, December 16, 1976. The Employer
argues that, on the basis of comments set our
this
?koje
Board's supplementary award in hs
13/?5, also a classification grievance.
only the, latter date is proper. In that
award, the Board adopted tn2 following
principle from MeQm,P&S...U.. .a@ I+!inistry oXf
the Attorney-General, 71/76:
"While it is, in our view, clear that the
employer failed to COiTpiy with the
provisions of Article 10.3 throughout the
period from January 28, 1976 until July
12, 1976. we do not believe that these
employees who initiated their complaint
only on May, 25, 1576, may properly clair
reiief throughout that period. To the
contrary, an5 to hold otherwise, wo-ld be
f 0 IT~roparly pexalize the ez?loyer ior
the breach of an agreement of whict it
was not awar2. Thus, where as here, the
breach of t&e a~greenent is in the nature
of a continuing one, boards of
crbitration have considtently limited an
employees's right to claim damages for
the breach of the agreement to .the period
of timi: within which it was pe rmissible
to file his grievance. LUnion Gas Co.
oi Canada Ltd L-----L 119721, 2 L.A.C. 126) 45
(Weatherill). Re: Actonatic Screw
Machine ProdGs (1972). 23 L'.A.C. Ltd.
396 (Johnston). Re: National Auto
Radiative Manufactu&g Co. (91671, 18
L.A.C. 326 (Palmer)“.
With respect, this case does not limit
recovery in every situation to the date of
filing a formal grievance. Here the grievor
had made his "complaint" on or before
September 1, 1975 in the form of a request for
reclassification. I-iis request apparently Zll?t
with at least- tacit apprcval from everyone
concerned exceDt the riassifica+iqn of'ice-s c1 * L
of the Civii Service I Comm;sslon, wh.o ale-e --.,-...-v-
LJ_.KL em~cw~red to rr.akti t,lg..final decision.
In such clrcumszances, it would have been
premature for the grievor to file a formal
grievance until it appeared that his request
would be refused., Nevertheless, rhe evidence
clearly establishes that the job content on
which the present grievance is based existed
before September 1, 1975 and that responsible
officials fo the Employer had received and
were considering the grievor's request by that
date. As none of the subsequent aelay in
decision-making can be laid to the grievor, he
is entitled to be considered to be improperly
classified as of September 1, 1075, and we so
find. (Emphasis added)
22
Ir. iannin~, 555,'e4, lsazutlsj, the Board stated;, I
Turning to the question of compensation, the
eiTpiCy2r
argues that the grievers should be
linitrd to comp2nsation as of 20 days before
the grievanc2 which 'came to this Eoard was
fii2d ir. l9E3. au+ _, in 07.x view, Khi.5 cecer21
r-LIE WC.xl:! simply not bfs a;propriaze ir. this
case. hs we explained at the beginning of
this award, the grievors were absolutely clear
fro~r the time that they became members of the
bargaining unit in 1980 that they considered
themselves to be wrongly classified. We have
already exalaine'd the tortuous process that
116~ the grievor's before this Board. None of
the delay or troubles can be attributed to the
grievors. They have been told by suoervisors
that they were already reclassified. Then
they have been told that reciassification was
comng. They went to the Grievance Settlement
Soar-d, which sent them over to the Public
Service Classification Bating Committee, where
they were~ told that they should be before the
Grie~vance Settlement Board. At no' time did
the grievors withdraw their complaint or do
anything to lead management to think that they
had abandoned their claim to reclassification.
In these circumstances, they ought to be
conaensated from the time they made known
their con:glaint. This accords with the
. Board's jurisprudence (in -particular, see
Wooper, 41/V, at pages 18-19).
(Emphasis added)
In Hooner' there is a reference to a "tacit
eFprova1" of the grievor's request by the Employer. In
Cannlnq, the Board notes that supervisors had told the
grlevors that reclassification was coming. Whiie these
factors were among many factors that influenced the,
Board?5 decisicns iti those cases, in our view the Board
in either case did not consider Employer representation
GC:.1 tt FL.2
-.__ Z:n;lcyer that he is wrongly classified, .but
:rr.c:clcr~:t :t .zren:stcre to,grieve until the Employer has
I :: ac;~;f 675,‘c?5 (Brandtl the Board stated as
T.“.csc- cases reflect the view that where there
is a CcT.tlr"; 'ng course of conduct which can be
the sc:y~ect of a grievance at any time, i.e. a
ccr.~:n~~~ng g-levance, 'grievers.' wnc postpone
K2e-r dec~szon to grieve and seek relief
sh,?.;ld 2.c: be ,a;?le tc cla2m compensation
retroactlvciy. tc a point in time, when c,hey gtdlc: ;=e\,r hut di !j TA = c grieve. T52re are 5 c '1.: = -. -. ; 1 m.. r----J rEaSOnS whit.? .suppGzt LhaL
approach. I-= .* are disputes or
differences between,:Ezriarties they ~should be
azrec - and .no.t permitted to sinmer.
ye: there iS a competing aclicy which comes
into play in this case. That is the policy in ft-,.O.zr of settling disputes short of 'invoking
t ?.E grievance procedure and having recourse to
-,he Grievance ~Settlemect poard~. h rigid
application Of the '20 day rule ' WCUld
disccurage employees from attempting through
iess for321 means to settle their dis>urc. It 'n' c .< 2 2 -k2 far more desirable to grieve azd ~i-.L.:- '.. ---.- a.-. E: fixed date w:?Frh would oacoms the ta=; 9 m-v fCZ dererxining compezsatlon in tte
evezz of success
Eavicg revi ewed the competing interests, the board
. . . we do set beli2ve it appropriate to apply
t k e 2c Tay ruie where informal efforts have
teen .made to achieve a settlemrct of a
dispute sho,rt of recourse to arbitration.
Those ecfor-ts should be encouraged and. in the
event that they are not successful in
24
achieving settlement and its becomes necessary
tc crieve, such relief as might be awarded by
the Grievance Settlement B3‘ard should SC-
retroactive to the pcint where s'ceps WE:?
first taken to settle the grievance
infcrmally.
Ccunsei for t:le Employer relies hsavily 3:: 22
ant Allen, ~0462/86 (Kennedy) and &, 1209/65 (Verity:.
,_ I n the former the Board observed:.
We would conciude from the evidence that the
Crievors were, throughout the per:Od, content
to let the process work its way ttrougn in the
nornial scheme of things in thr anticipation
that the final result would be satisfactory to
them. It was not a mattsr of refraininq~
ricourse to the arievgnce procedure in . zilance OT, represe::taticnugr: ManaQexenC.
Bather, the Grievor-s di-7 not direct their
rinds to pursuing a grievance unt51 the ncrmal
course of- events oroved unsatisfactcrv.
Placing the Union evidence -at its highest,
there was, no promise by ~Management that a
reclassificationwould. in fact, be achieved:~
there was no representation that if achieves..
it would be retroactive: and whatever
Supervisors warranted or represented they
would do, they did do. (Emphasis add2cJ
’ “he underlined portion of tne anove gara.;;ra;.?
distinguishes Robbs and Allen from the facts before us.
rTV^ _ . . i- .zvidence is clear that the Grievor not only turnoti
her mind to gursuing'a grievance, bur ez;rcssly reserved
the right tb grieve in her letter to the Emplcyx in
February 1963. Here the Employer made no
representations that the grievor was wron.Gly classifiecl
cr that she will be reclassified. HoweWS, it did
.
25
undertake to conduct a job audit within a specified time
peri and to come 'up with an acxrate gositim
specifi-ation. c That undertaking is a rearesentation
that the Employer would be looking into the grievor's
classification complaint with the assistance cf a proner
pcsition specification. For all of the reasons given by
K .e e Board in Boyle, it is improper to penalise the
grievor for giving the Employer an OppOrcUfiity to remedy
her ccmrlaint rather than filing a grievance
immediately.
In Gar, the Board reviewed the reasoning in Boyle,
and recognized that in Bose_ there was no finding of
Employer representation.‘ However, the Board in gain
aspeers to depart from the reasoning in me. The
Beard in Sas stated:
In the instant matter, Mrs. Gam did have an
informal disc-ssion with Supervisor Hclland in
January, 1983 in which' she claimed
misclassification. Admittedly a job
description was prepared by the grievor and
Supervisor Holland in early January of l?E3.
Xowever, there were no representations that
management agreed with her position cr that
she would be reclassified. There was no
discussion concerning retroactivity. it
cannot be said that the grievor was misled by
-he Employer. in fact, the Griercr was
advised by local manager Klejman in 19it3 chat
t.i r classification was being reviewed by that
the review would take some 2 - l/2 years.
In our opinion, .to protect her claim to
retroactive compensation, the grievor should
have filed a grievance in 1983 after her
discussions with Mr. Klejman. However, she
i
made a conscious decision nqt to grieve. In
these parti cular ciroumstances. the Board is
net persuaded that there is any equity against
the Mir.istry which would entitle'the grievor
to the relief claimed. However, by early
April of 1985 the grievor 'made her position
clear to the new local maLager Barbara
Saunders that sne Intended to file a qri2v2~c2
: :: t 11 e e *.’ 2 r. : that the 1,nformal procedures were
cnsuczessfcl. n our o;ln:or,, the c;rl%vor IS
clearly entitled to compecsat:on dating back
to aprii I,. 1985 which coincidentaily 1s tne
retroactivity date chosen by the Ministry.
TO t!le extent that 52 requires a regresentation
from the Employer that it agreed with. the grievor's
- complalr.t, as a precondition for awarding greater
retrcactivity, we prefer the approach in Bale. We
observe the Board in Gam re~fused to awards retroactivity
to January 1983 on the basis that during those'informal
discussions the Employer made no representations.that it
agreed :<ith the grievor's position. Then the Board went
or. to state that "by early April 1985, the grievor made
her position clear to the new local manag,er Barbara
Saunders that she intended to file a grifvance in the
event tnat tne informal ,procedures . were ~ms'st:esszL;.
In 0'2r opinion, the grievor is clearly entitled to
coznensacion dating back to April 1, 1985 . ..I' There is
no indication in the _ Gam decision tnat as of Aprii 2,
19E5, the Employer had made any representations that it
agreed,with the grievor's complaint. ~Nevertheless. .the
Board awarded retroactivity. to that day. Not every
infor:::a? discussicn cf a classificazicn co.r.plair,t is
s-fficient to entitle 'a grievor tc retroactzvity.
ThErr 6"s' be evidence that the Employer was made aware
ex:ress1y cr tacitly. that the f~"FloyeE is zontez>lating
E .z ttia-, time t;l: Em;ioper woc;ld. or should reasonEb~y
na:‘c 3ecc.r.e aware that the grievor was aileging a breach
cf tke coiIective agreement and rhat if rhe conpiaint is
rr:t risclved :c her satisfaction, she reserved the rlsnt
zc grieve. 3SS;i te this knouledgel t?.e Er.picyer Celaye5
KILL ,Jrs;z **: AL, 1986, before present.ing an accurate
position specification. Ms. Mann agreed thzt until t'?aZ
evect , the question Of the grievor ' 5 proper
? crassification was "up,in the air"'. Until Juts 10,
1 OCF Law", 'the griever could net have known what the
Employer’S response to 'her classification com>lair.r
wo-ld be. Two days after she fc.2nd out that the
Em>loyer's response wes unfarorable, she :rie-:2d.
I:: the circumstances, the Board is cf the view that
retrozztivity should relate back to Febr"ery 14. 1923.
While the period of retroactivity is significant, r,ke
Da:el SC. Uasiltcn; Ontaric this 14th day of December, 1988. ,
H. Roberts
Member