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HomeMy WebLinkAbout1986-1141.Levere.90-07-13EMPLOYES OE LA CO”RONNE DE “ONTARIO CQMMlSslON DE SETTLEMENT REGLEMENT DES GRIEFS IN TBE MATTER OF AN ARBITRATION. Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before TEE GRIEVANCE SETTLEMENT BOARD BETWEEN BEFORE: FOR THE GRIEVOR: FOR TEE EMPLOYER: HEARING: OPSEU (Levere) Grievor - and - The Crown in Right of Ontario (Ministry of Transportation) - and'- Employer M. V. Watters Vice-Chairperson T. Kearney member D. R. Walkinshaw Member R. A. Blair Counsel Cavalluzzo, Hayes & Lennon Barristers 6 Solicitors K. Cribbie Staff Relations Advisor Human Resources Branch Ministty of Transportation April 20, 1990 This panel of the Board Issued an award dated March 30, lg99 ln respect of the grievance of Mr. D. Levere. He had clajmed thereln that he was improperly classified as a Technlcian 3 Survey. The grievor requested that he be reclasslfled as a Technician 1 Construction with the posltlon of Senior Construction TechnIcIan and that relief be granted to July 14, 1960. After assessing all of the evidence and argument presented over three (33 days of hearings, the Board found that the grievor had been improperly classified in the period 1980 to 1966. We declined, however, to award retroactivity beyond the “twenty day rule.” At the request of the Unlon, jurisdiction was retained “to assist with any issue that might arise from the implementation of this award.” The Board was reconvened on April 20, 1990 to hear and determine a monetary issue relating to remedy. The facts giving rise to thTs latest dispute may oe stated as follows: (i) As of September 2, 1996, the date on which the grievance was filed, the grievor’s designated headquarters was the Navan Road Patrol Yard. Thdt location was the MinIstry facility closest to his res!cecce. During the 1996 construction season the grievor reportec to work at the Ministry’s OffiCeS located at the intersection of St. Laurent Boulevard and the Queensway, in Ottawa. The grievor then received both travel time and mileage for his travel between the headquarters and the work site and return. We were advlsed that this amounted tom one-half 1 (l/Z) hour per day of travel time plus mileage calculated at thirty (30) kilometres return. (ii) Mr. Levere’s grievance was denied at Stage Two in January, 1987. The grievor was subsequently successful in a competition for the position of Senior Construction Technician. His promotion was effective April 6, 1987. The position was classified as Technician 1 Construction which, as noted above, was the very classification sought in the grievance. It was the grievor’s uncontested evidence that he applied for such position so as to benefit from its higher salary and its annual increments. During the course of the hearing on ‘the merits, the grievor had complained that even when he had been temporarily reclassified to the higher level, he was always paid at the bottom of the salary range. In summary, it was his evidence that he applied for this position in order to stop the on-going financial disadvantage which he had been previously experiencing. (iii) The grievor’s success in the competition led to a change’of his designated headquarters from Navan Road to the District Office at the Queensway and St. Laurent Boulevard. This effectively mean’t that he lost entitlement to the travel time and mileage previously specified even though he continued to travel to the same work site on a daily basis. More specifically, the grievor no longer received travel time or mileage for travel between Navan Road and the Ministry’s District Office. The Board was not told why this occurred other than such result was dictated by the terms of the collective agreement. 2 (iv) The grievor was successful .n a seco:io compet:tion 1,: November, 1987. The Board was informed that the deprivation complained of was, therefore, 1 imited to the period between April and November, I 987. This loss was calculated by the gr:evor as being $1775.08. That figure,was not disputed by the Employer. It was the grievor’s evidence that this was the amount he would have received had he not lost the entitlement to travel time and ml leage. The Employer d;d not seem to contest the grievor’s assertion that he would have received payment in that same amOUnt had he been properly classified as of tne date of the grievance. (v) The claim to travel time and mileage was not addressed at the initial hearing. Subsequent to the release of our award, the Employer paid the grievor the salary adjustment which was owing as a consequence of the ordered reclassification. It was unwilling, however, to compensate him for the travel time and mileage which he also claimed. That impasse led directly to the present proceeding. At the commencement of the most recent hearing, counsel for the Employer raised a preliminary objection to the Board entertaining the grievor’s claim. Simply put, it was his submission that such claim did not relate to, or arise from, the implementation of the award and for that reason the Board was functus officio. Counsel suggested that as the Board had issued a “final” award, we lacked any residual authority of a remedial nature. Counsel also noted that the Union had not made a request 3 that we reserve on the question of damages. He asserted that it was improper for the Union to present a claim which had not been advanced during the hearing, especially so, since the facts giv was Pas ng rise to same were then known by the grievor. In reply,~ it argued that the grievor’s application for the higher tion, which led to the change in his headquarters, was not an act of mitigation. Lastly, we were urged to conclude that the loss experienced in this instance was not reasonably foreseeable as a head of damage in a classification case. The Board was referred to the following authorities in support of this position: Fioliano, 218/79 (Prichard); w, 240/79 (Eberts); &z Consolidated Aviation Fuelinq of Toronto Ltd. And International Association of Machinists, 1 L.A.C. 377 (Shime, December 19721 Re Beach Foundrv Ltd. And United Automobile Workers, 7 L.A.C. (Zd) 313 (Abbott, October 19741. In response, the Union submitted that the Board was not functus officio. Counsel argued that we had sufficiently reserved our jurisdiction such that we could proceed to address the damages issue. It was emphasized that our reservation was couched in broad language. It was further submitted that the Board had a duty under sections 18 and 19 of the Crown Employees Collective Barqaininq Act, R.S.O. 1980, Chapter 108, as amended, to finally decide disputes arising between these parties. Add i tional lY7 counsel argued that there were sound policy reasons first allowing the parties an opportunity to determine the for 4 quantum of any compensation owin9. including damages, Last:y, it was asserted that the grievor was entitled to the damages claimed as they resulted from his efforts to mitigate the adverse salary consequences arising from the Employer’s error in classification. Counsel suggested that withholding such relief would serve to penalise the grievor for taking appropriate steps to mitigate his loss. Pie stressed that the loss would not have been incurred had the grievor been properly classified as cc September, 1986. The Doard was consequently asked try make the grievor whole by Prov’ding compensat;on for all 1OSSeS flowing from the breach of the agreement. From the perspective of the Union, these losses satisfied the test of reasonable foreseeability. It again requested that we remain seized in respect of this narrow issue. The Board was referred to the following awards in support of the above arguments: Gecina v. Ontario Public Service Emolovees’ lJnlon et al., 35 O.R. (2d) 670 (Ont. Div. Ct.); Re Consumer’s Ga$ Go. And International Chemical Workers’ Union, Local 161, 6 L.A.C. (26) 61 (Weatherill, March 1974); Re Finlav Forest Inaustries v. International Woodworkers of America, local l-424, 60 D.L.R. (3d) 566 (B.C.C.A.); Re Yardlev of London (Canada) Ltd.. and International Chemical Workers’ Union, local 351, 4 L.A.C. (24) 75 (Brown, August 1973); Re Dunklev Lumber Co. Ltd A d . n International Woodworkers of America, jocal l-424, 17 L.A.C. (3d) 192 (Brokenshire, October 1984); Re Newfoundland Farm Products Corporation And Newfoundland Association Of Public Fmolovees, 7 L.A.C. (3d) 186 (Easton, April 1982); Re International Chemical 5 Workers,Local 346, And Canadian Johns Manville Co. Ltd., 22 L.A.C. 396 (Weiler, June 1971); Chanqoor, 495/84 (Palmer); Gonneau, 227/81 (Teplitsky). The Board does not consider itself to be functus officio as claimed by the Employer. We would agree with the submission of the Union that the reservation of jurisdiction in our earlier award was sufficiently broad to allow us to entertain the present claim for damages. We think that the damages question arises from the implementation of the award as it is directly related to the total compensation owing as a consequence of our decision to reclassify the grievor. We have not been persuaded that our first award was final or complete. Our approach to this issue is consistent with both the statutory objective and the labour relations policy referred to by the Union. It is clear that the subject of damages was not specifically addressed at the ini t i al hearing. The grievor then knew that he had not received travel time or mileage’ in the period April to November, 1987. He was then obviously unaware that the Employer would subsequently refuse to pay him in respect of these items on the release of our award. In retrospect, it is likely now apparent to all concerned that’ this prospective claim should have been raised at the hearing. This would have alerted the Employer as to the existence of the claim and would have permitted us to rule on the question of entitlement in our award. It would also 6 have eliminated the need for a second hear,ng assuming the part ies were able to agree on quantum. Nevertheless, given our find ing on the scope of the reservation of jurisdiction provision contained within the award, we remain unconvinced that the Union’s failure to raise the issue at an earlier stage should serve as a bar to the present claim. In summary, we conclude that we possess the requisite jurisdiction to determine the damages question placed before us. The~Eoard has reviewed all of the authorities provided to us by the Employer. Ultimately, we do not think that they dictate a contrary approach to this problem. The more difficult question relates to the grievor’s entitlement to damages. We are satisfied from all of the evidence presented at the initial hearing that the grievor had been concerned about his classification for a considerable period of time. More specifically, he had previously objected to the reversion to his normal classification during the winter months and to the fact that he had always been placed at the lower end of the salary range when temporarily appointed to the higher Technician 1 Construction classification. We accept that these long standing concerns led the grievor to apply for the regular Senior Construction Technician p’osition subsequent to the rejection of his grievance at Stage Two. Further, the Board considers that such a step reflected an attempt on the part of the grievor to minimize the loss he believed he was experiencing 7 by virtue of the Employer’s failure to reclassify him on a permanent basis. The Board considers it significant that the grievor would have continued to receive travel time and.mileage if he had been properly classified as of September, 1986. As previously noted, he was then receiving these benefits as his headquarters was designated as the Navan Road Patrol Yard. At that precise time, he was acting in the higher classification pursuant’to a temporary appointment. The grievor asserted that this entitlement would have continued if he had then been permanently classified as a Technician 1 Cons t call any evidence to rebut this c 1 benefits was occasioned by the gr i ruction. The Employer did not aim. As the loss of the ever’s attempt to offset the salary consequences of the Employer’s failure to reclassify, we think that he should be awarded the damages claimed in the amount agreed to. On the rather unique facts of this case, the Board is prepared to accept, albeit with some hesitation, that the loss flowed directly from the Employer’s breach of the agreement. We, therefore, elect to place the grievor in. a monetary position as near as possible to that in which he would have been had the contract not been’breached. On a balancing of ‘the interests, it is our judgment that the grievor should not be compelled to assume the loss occasioned by his efforts to ameliorate his position. The Board has not been persuaded that the claim is so remote as to justify its dismissal. For al 1 of the above reasons, the Board allows the claim for $1,775.08. We wish to make clear, however, that this award 7s premised entirely on the particular circumstances before us and that it is not intended to have general applicat-on. We remain 1 seized to deal with any problem which might arise from the implementation of this award. Dated at Toronto , Ontario this 13th day of, July 1990. . M.V. Watters, Vice-Chairperson T. Kearney, Member D. Walkinshaw, I Member 9