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HomeMy WebLinkAbout1987-0368.Cornell.88-06-10IN THE HATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: For the Grievor: For the Employer: Hearing: OPSEU (Margaret Cornell) Grievor and The Crown in Right of Ontario (Ministry of Correctional Services) Employer Nimal V. Dissanayake P. Klym H. Roberts Vice-Chairman Member Member S. Ballantyne Counsel CavaLluzzo, Hayes & Lennon Barristers 8 Solicitors L. McIntosh Counsel Crown Law Office Attorney General of Ontario February 8, 1988 -2- DECISION In this grievance the grievor states as follows: "I grieve that I am not being paid the correct salary as set forth according to signed contracts”. She requests that "the correct salary be paid and from the date it was due." At the commencement of the hearing the employer took the position that this Board lpcked jurisdiction to determine the grievance. The Board proceeded to receive evidence and submissions with respect to the preliminary issue and the merits of the grievance together. The material facts are not in dispute. The grievor was the only person who testified. Since 1981 the grievor has been employed by the Ministry of Correctional Services, as a Cook 2 at the Sault Ste. Marie jail. She worked 24 hours per week until sometime in 1984, when her hours were increased to 32 hours. It is common ground that the grievor continued to be in the unclassified service after the increase in her weekly hours to 32. -3- The grievor's employment was governed by a series of contracts of employment. In 1986, she was subject to an employment contract which had an effective date of January 1, 1986 and an expiry date of December 31, 1986. This contract stipulated that the total hours per week will be 32 hours. The grievor, testified that sometime in 1985, the Superintendent of the jail told her that because of a planned expansion of the jail her hours will be increased to 40. She was not told when this change in hours will take place. Even though the existing contract was not due to expire until December 31, 1986, the employer unilaterally offered her a new contract effective February 10 to March 31, 1986 and the grievor accepted the same by signing it. This contract is in a standard form. There are three boxes indicating "New", "Renewal", and "Change (specify)" at the top of the form. The box indicating "Change specify" was checked and the words "32 hours to 40 hours per week" entered in the space provided. Under the title "terms and conditions" is included the following printed words "Normal hours of work not to exceed/not less than ibla.n&~) per week." In the blank space "40" has been typed in. Below the terms and conditions, the following has been typed in: f -4- "Convert present contract of 32 hours per week to 40 hours per week unclassified until March 31. 1986. Position to be converted to classified staff April 1, 1986" This was followed by another contract effective April 1, 1986 to December 31, 1986. A clause under "other terms and conditions" in this contract reads "Normal Hours of work not to exceed/not less than 40 hours per week." The words "full-time employment" are inserted following the foregoing sentence. Later on in the contract a notation is made that "Position to be converted to classified staff in near future." The next contract effective January 1, 1987 to June 30, 1987, states under "other terms and conditions" as follows: "Authorized hours of work as required up to 40 hours per week. Full time employment." The grievor's hours of work remained at 32 per week through all of these contracts. She was assigned 40 hours only when she was classified in February 1987 after the grievance had been filed. When she was not classified on April 1, 1986 as stated in the contract the grievor raised this with her superiors. She also questioned the fact that she was not getting 40 hours per week. She discussed this with her immediate supervisor, the Deputy Superintendent and the Super intendent of the ja ,il. She was told that she will get 40 hours if she is the successful bidder in a competition for a classified position expected to be posted sometime in the future. The evidence indicates that while she continued to get only 32 hours, from February 10, 1986. she received benefits such as sick days and OHIP coverage, as if she were a full-time employee performing 40 hours per week. -5- It is the union's contention that commencing February 10. 1986, the grievor and the employer became bound by a contract of employment which guaranteed 40 hours of work per week to the grievor and that the employer breached this contract by continuing to provide only 32 hours per week until the grievance was filed. The union claims on behalf of the grievor compensation for eight hours per week for the period in question. Counsel.for the union concedes that the grievor has been employed in the unclassified service throughout the relevant time and that by virtue of article 3.1 of the collective agreement the grievor's ho-i-s of work and wages are not governed by the provisions of the collective agreement. Nevertheless, she submits that the Board has jurisdiction over this grievance.' Counsel -6- The union's contention in support of arbitrability of this grievance is two-fold. First it relies on a prior decision of this Board, Davis and Ministry of Consumer and Commercial Relations,- 780/85, which counsel contends stands for the proposition that the Board will take jurisdiction where it is established that there was detrimental reliance on the part of the grievor. Alternatively, counsel contends that if we find no jurisdiction based on the DI case,, the breach of contract by the Ministry constituted constructive dismissal of the grievor and that therefore the Board has jurisdiction to deal with the grievance under section 18 (2) (cl of the Crown Employees Collective Barqainina Act. for the Ministry takes the position that the contracts in question do not provide a guarantee of 40 hours and that even if they did, this Board has no jurisdiction to enforce them. Thus she submits that this grievance is inarbitrable. . . The Board derives its jurisdiction to hear and determine grievances in one of two ways. The first source of jurisdiction is the collective aqrerment itself. Section 19(l) of the Crown Employees Collective -7- Bargaining Act provides in part that "Every collective agreement shall be deemed to provide that in the event the parties are unable to effect a settlement of any differences between them arising from the interpretation, application, administration or alleged contravention of the agreement . . . . . may be referred for ~arbitration to the Grievance Settlement Board . ..II Besides this primary source of Board jurisdiction, section 18 (2) of the Crown Emolovees Collective Baroainino Act provides that "In addition to any other rights of grievance under a collective agreement", an employee may grieve and proceed to arbitration where the employee is claiming (a) that his position has been improperly classified (b) that he has been appraised contrary to the governing principles and standards or (c) that he has been disciplined or dismissed or suspended from his employment without j.ust cause. Other than relying on the Qa_vis Case (s_upril) , counsel for the union does not contend that the Board's claim to jurisdiction based on "detrimental reliance" is referable to either of the above sources. She did not explain or argue how "detrimental reliance" can -8- legitimately form a third source of jurisdiction for the Board. She merely relied on the Davis Case as standing for that proposition and urged us to follow it on the basis that decision is not manifestly wrong. In &a* the jurisdictional issue is set out at page 2 of the decision as follows: l*it was contended that the grievor was a student employed during his regular vacation period, and as such he was specifically excluded from the grievance and arbitration procedures by the exclusionary definition of "employee" as contained in section 1 (f) (v) of the Crown Employees Collective Bargaining &&. ** After reviewing the evidence, the Board at page a determines that it had jurisdiction. The Board states as follows: "At the time of the first contract of employment, the Ministry was fully aware that the Grievor was a student in regular attendance at University who would be employed during ks summer vacation period. However, the evidence is undisputed that the grievor was not employed as a student. At all relevant times, the Grievor was an emplcyee within the meaning of the PW&c-.~ _______ --_ Service Act and the Crown EmDlOYeeS COlleCtLVe b?xgSining Act because of the terms of employment. As a result, the Grievor was not exciuded from the definition of employee as contained in section 1 (f) (V) of the Crown Employees Coiiecti.ve &qg.aininu AC t , and therefore had access to both the grievance and arbitration procedures. Accordingly, this Board has jurisdiction to determine the merits." In our view this decision does not stand for the -9- proposition put to us by union counsel. The issue there was whether the grievor was employed as a student and therefore excluded from the definition of "employee". On the basis of the facts before it, the Board simply held that although the grievor was a student he was not employed as such. Thus the Ministry's basis for objecting to jurisdiction was not established. While in Ijavis there is a discussion on detrimental reliance, that formed no part of the reasons for the Board assuming jurisdiction. After it had already determined that the Board had jurisdiction to determine the merits, the Board had to decide whether it would hold.the Ministry to a technical construction of the actual words used in the contract despite anomalous consequences that followed from such an interpretation, or whether it would recognise that the Ministry had made an error and give a practical interpretation which would lead to a fair and reasonable outcome. Because there was substantial detrimental reliance on the part of the grievor, the Board opted for the former~approach. in summary, we are of the view that detrimentai reliance does not provide this Board with an independent source of jurisdiction and that the decision in QaxCs does not stand for such a proposition. Thus the union's -lO- first ground for jurisdiction fails. The Board next turns to the union's alternate submission based on a constructive dismissal. The relevant portion of section 18 (2i is as follows: "18 (2) In addition to any other rights of grievance under a collective agreement, an employee claiming, . . . (c) that he has been disciplined or dismissed or suspended from his employment without just cause, may process such matter in accordance with the grievance procedure provided in the collective agreement, and failing final determination under such procedure, the matter may be processed in accordance with the procedure for final determination applicable under section 19." It appears that no prior decision of this 8oard has dealt with the issue of whether the phrase "dismissed" in section 18 (2) (c) is broad enough to encompass the common law concept of "constructive dismissal". iiowever, since. counsel for the Ministry did not argur otherwise, for the purpose of this decision we will assume that an allegation of constructive dismissai is arbitrable pursuant to section 18 (2) (ci of the Act. What is referable to arbitration under section 18 (2) Cc) of the Act is a claim that an employee "has been -11- disciplined or dismissed or suspended from his employment without just cause." The present grievance states "I grieve that I am not being paid the correct salary as set forth according to signed contracts" and the remedy requested is compensation for the loss resulting from the alleged wrong payment of salary. In our view the essence of the grievance is not a discharge but the issue of appropriate wages. The grievance cannot in our view be described as a claim that the grievor "has been dismissed~ without just cause" within the meaning of section 18 (2) (cl. The collective agreement has clearly excluded disputes relating to hours of iyork and wages of unclassified employees from access to the grievance and arbitration procedures. In our view, the union cannot circumvent that clear statutory exclusion by framing what is in essence a claim 'for wages as a discharge grievance. In our view section 18 (2) (cl is intended to provide a dispute settlement mechanism where the essancz cf the dispute is whether or not just cause existed for the discharge of a grievor. This is not such a case. Consequently, we are of the view that this Board does not derive jurisdiction from section 18 (2) (ci cf the Act t3 d2ti-rnir.2 tk.2 present grievance. Accordingly, we find the.grievance to be inarbitrable and the same is harety dismissed. -12- Both counsel jointly requested that even if the Board decides that it had no jurisdiction to hear the merits of the grievance, it should interpret the employment contracts in question. Counsel for the Ministry noted that since the grievor's claim is based on an employment contract and not a collective agreement, she will not be barred by the Riqhts of Labour Act from launching a court action. Both counsel urged the Board to give its opinion, which in their view would assist the parties in resolving the dispute without litigation. In view of this joint request of counsel the Roard undertook to interpret the contracts in question for the guidance of the parties. We begin by reviewing the contracts. The contract operative from January 1, 1986 to December 31, 1966, is clear that the grievor will be entitled to a total of 32 hours per week. During the currency of uns contract the Ministry entered into a second contract to supercede it. This second contract, effective Febi-uary 10, 15&6 to March 31, 1986, states "normal hours of work not to exceed/not less than 40 hours per week." The Ministry did not call any evidence. Thus the Board did not hear from anyone who was invclved in drafting this or any subsequent contract. -13- It appears to the Board that the standard form contract, by its use of a slash between the phrases "not to exceed" and "not less than", intended that one of the phrases be struck out. This is nor: an unusual feature in legal documents. However in the contract in question neither phrase has been struck out, and as a result that particular ciause is meaningless and not of assistance in determining the parties' intentions. Consequently, the Board must look to other provisions in the contract to ascertain the meaning of the contract. The prior contract clearly fixes her regular hours as being 6 l/2 hours on Monday, Tuesday, Wednesday and Saturday and 6 hours on Sunday for a total of 32 hours' per week. The contract that followed indicates that the purpose is to effect a change and the change is specified as "32 hours to 40 hours per week." Since the grievor had a guarantee of 32 hours previously and since the only change indicated is the replacing of "40" for "32" , logicaliy the result is a guarantee of 40 hours per week under the new contract. This conclusion is ccnsistent with a paragraph inserted in the new contract . stating "Convert present contract of 32 ho;irs per we9k to 43 hours per week unclassified until March 31, 1986. Position to be converted to classified staff Aprii 1. 1986." !3 5\ -14- Counsel for the Ministry suggested that even if the a contract set out a regular work week of 40 hours, that did not constitute a guarantee of 40 hours. She relied on the Supreme Court of Canada decision in Air-Care Ltd. v. U.S.W. et al (1974)) 49 D.L.R. (3d) 467. However, subsequent arbitration awards have held that Air-Care permits an employer to unilqterally reduce normai or regular work hours only in "abnormal" situations or on a temporary basis. For example see, Re E.S.& h. Robinson (Canada) Ltd., (1976)) 11 L.A.C. (2d) 438 (Swani and Re Ballyciiffe Lodge Ltd., (19841, i4 L.X.C. (3d) 37 (Adams). On the facts of the case before us, the reduced hours ,continued for the duration of the new contract from February 10, 1986 to March 31, 1986 and a subsequent contract from April 1, 1966 to December 3i. 1986. Indeed the evidence was that the hours of work remained at 32 after a further contract affective January 1, 1987 to June 30, '1987 was in place and that the hours were increased to 40 only after the fiiing of the grievance. In the circumstances we cannot conclude that the reduced hours were implemented "X-I a temporary basis or to cope with some abnormal situation. On the contrary it appears that had the grievance nor: been fiied. the -15- -grievor's hours could have continued at 32 indefinitely. In summary, it is this Board's opinion on a plain reading of the employment contracts in question that commencing February 10, 1986, the contracts contemplated that the grievor will be entitled to work 40 hours per week and that the employer was in breach of these contracts by continuing her hours at 32. In conclusion, we find this grievance to be inarbitrable and the same in hereby dismissed. Dated this 10th Day of June,1988 Nimal~D$j'jsanayake Vice-Chairman 7 P. Klynl / Member &L-GC) H. Roberts Member