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HomeMy WebLinkAbout1990-1306.Finessay et al.91-06-12FMPLOYLS DE I/\ COURONNl DEL’ONT*RIO CfXl@liSSION DE SETTLEMENT REGLEMENT DES GRIEFS c 1306/90, 1307/90, 1308/90, 1309/90, 1667/90, 1676/90 IH TBR HATTRR OF AR ARBITRATIOH under TNN CRONN NKPLOYBES COLLECTIVE B&RGAININQ ACT Before THE QRIBvaNcB BBTTLBNNNT BOARD -: FOR Tlil$ GRIEVOR OPSW (Finnessey et al) - an8 .- The Crown in Right of Ontario (Ministry of Revenue) Qrievor Employer B. Kirkwood vice-chairperson. W. Shipman. Member R. Scott Kember D. Eady Counsel Gowling, Strathy & Henderson Barristers & Solictors C. Slater Senior Counsel Mhagm&nt Board of Cabinet Human Resources SeCretariat HEARING December 10, 1990 _ .r .., I';lge 2 DECISION . . . .- The qrievors were seeking reclassification and remuneration for periods of time ending approximately 11 years before the filing of the grievances in July 1990. Each grievor was hired at the Oshawa branch as a Tax Auditor 1 in the Retail Sales Department and was promoted to Tax Auditor 2. The grievers allege that while they were Tax Auditor Is, prior to their promotions to Tax Auditor 2, they were performing the functions of a Tax Auditor 2. They claim loss of salary and including all increments and interest. There is no'substantial difference between the grievances with the exception of the dates of hire and the dates of promotion. The periods in question relating to each of the grievors is as follows: Finnessey - September 13, 1976 to November 1, 1979 Gordon - April 17, 1972 to December 2, 1974 Laframboise - August 13, 1973 to August 31, 1979 Lemay -Sept. 23, 1974; to Nov. 1, 1979; Molloy - July 31, 1972 to May 1, 1976 Samson - SePtember 12, 1974 to July 15, 1979 The Ministry's counsel objected to the arbitrability of the grievances at the outset of the hearing and argued that the grievances ought to be dismissed for their untimely filing and unreasonable delay. The Ministry's counsel submitted that although the Board had jurisdiction to hear-a classification grievance that related to' periods of time in the past,' he submitted that the unreasonable delay in filing the grievances prejudiced the Ministry in a manner which could not be overcome in any way. He submitted that many of the documents which the Ministry would require to ii, Page 3 prepare its case had been destroyed in the normal course of business. He further submitted that even if l.aches did not apply there was no basis to depart from the usual practice of the Grievance Settlement Board that limits the remedy in continuing grievances to 20 days prior to filing the grievance. The Union's counsel submitted that the grievors did not learn of their right-to grieve until July 1990 and therefore by the application of Divisional Court's decision in The Queen in right of Ontario as represented ~by the Ministry of Correctional Services v. Ontario Public Service Employees Union and the Grievance Settlement Board 74 O.R. (2d) 700, in which it reviewed OPSEUIPierre) and The Crown in right of Ontario (Ministry of Correctional Services G.S.B. 0492/86 (Verity) (the Veronica Pierre decisions) the Court held that the Board was correct in its interpretation of the collective agreement that the time for filing the grievor's individual grievance, instituted under article 27.1.2. only began to run from the time that the grievor became aware that her rights were violated, the grievances were timely. He submitted that in order for the Ministry to succeed it must show that it was prevented from presenting the case of its merits. He argued that due to the nature of the evidence required, the Ministry was not prejudiced. He further submitted that it was not appropriate that the scope of the remedy be dealt with at the preliminary stage. The evidence on this preliminary matter shows that there were ftindamental changes made in the department since the periods of time in issue. It also explains how the grievers became aware that they may have a basis for a grievance. The particulars are as follows: Page 4 i. The assignment of work to tax auditors has undergone three major changes since 1973. : From 1973 to 1983, each taxpayer was categorized into levels ranging from A to G, in accordance with the volume of sales reported, the amount of taxes remitted and any prior assessment of taxes. A separate category "2" was established for the largest 500 accounts, and included accounts such as the .CNR.~ The 2 category washandled by head office personnel and Toronto office supervisors. Category G was the category for the smallest refunds and each prior category involved larger amounts. In Oshawa, Tax Auditor 1s handled the smaller audits that fell within levels D to G; Tax Auditor 2s handled the larger accounts that fell within levels B to C, and the Tax Auditor 3s 'handled the largest audits of level A and some did work on Z files. In addition, the Tax Auditor 1 may assist the Tax Auditor 2 for 10 to 20% of the time and the Tax Auditor 2 may assist the Tax Auditor 3 for 10 to 20% of the time depending upon the Tax Auditor's location. In 1983, the method of distinguishing the audits changed drastically. The basis for categorising audits changed to the determination of the volume of sales reported and the amount of sales remitted and no longer considered any prior assessment of taxes. The largest 1000 accounts .were grouped into the Industrial Service Unit (ISU) and the rerr,aining taxpayers were segmented into larger B and C categories. Mr. Waterman, the Regional Manager Audit of the Eastern Region testified that the prior categories of A to G could not be equated to the new B and C category. The ISU work which included the prior A category required work at,a Tax Auditor 3 level and new tax auditors .r had to be hired. The Ministry hired Tax Auditor 1, Tax Auditor 2 and Tax Auditor 3s to work, on the ISU and classified each persons level on the basis of the individual's education, even though, all the tax auditors working at this level were doing Tax Auditor 3 functions. The original Tax Auditor Is, 2s and Tax Auditor 3s remained in the field office. The Tax Auditor 2s did C audits mostly and were involved in small refunds and the Tax Auditor 3s in the field and some of the Tax Auditor 3s in the ISU did level B work. Between 1985 and 1986, the ISU disappeared and the tax auditors returned to the field office. On October 1 1986, the tax auditors were reclassified and taken out of the Tax Auditor series and placed into the Financial Officer series. The Tax Auditor 2s became Financial Officer 29, the Tax Auditor 3s, who did not have accounting designation became Financial Officer 4s and the Tax Auditor 3s who had accounting designation became Financial Officer 5s. The Financial Officer 5s are now assigned the A level audits and they co-ordinate and plan the audits, and they are assisted by the Financial Officer 4s who also do the B level audits, and the Financial Officer 2 does the C level audit. In 1986 the Ministry began to receive grievances from the Tax Auditor 1s and the TA2s who had been in the ISU alleging that regardless of each one's education,, the work which they had been performing had been at the-Tax Auditor3 level and therefore they ought to be compensated accordingly for the period between 1983 and 1986. At stage 2 in the grievance procedure the Ministry recognized that the work was done at a higher~ classification and they settled' the grievances on the basis that the Tax Auditor 1 and Tax Page 6 ,‘. Auditor 2 in the ISU were paid one year at their designated level as it was,considered a training periodl after which they were paid at a Tax Auditor 2 level. In the field, the Tax Auditor Is were paid as a Tax Auditor 1 for a period of 6 months for their training period, after which they were elevated to the Tax Auditor 2 category of payment. In order to speed up the process and to promote good morale, the director offered the same payments to any of its staff who was in a similar position, but had not grieved. In the Ministry's view, as the criteria for the different levels of audit had changed and could not be compared to the earlier categories, the only criteria for this payment was based on the level of tax auditor the person was and where he or she had been placed. The grievors were all tax auditors who had worked in the field office. Mr. Malloy testified for the union. He stated that on or about July 1990, he learned that two other Tax Auditors were.receiving back pay for services rendered as a Tax Auditor 2 while they were holding the position of Tax Auditor 1, although he was not aware of the time period for which they.were being paid. He testified that he performed work as a Tax Auditor 2 while he was a Tax Auditor 1, but that he did not make any inquiries about his classification as he did not include the union as part of his life. He merely did his work. Upon learning of these payments 'to two auditors, he became aware that he may have an entitlement t0 reclassification for an earlier period of time, and he filed his grievance that is before this Board. Although the Veronica Pierre decisions (supra) may be interpreted to entitle the grievor to institute and process a claim under article 27.1.2 from the time he becomes aware of his rights, that right to grieve does not preclude a consideration of the events. Page 7 i, In a classification grievance the nature of the work performed a@ the degree to which the vari:,us tasks are performed are critical to determining whether the person is placed in the appropriate classification. The nature of the work performed by tax auditors relies on the nature of the taxpayer and the size of the audit required as matched to the Tax Auditor's expertise: It is also dependent upon the amount of time that each auditor spent on each file and is dependent upon the degree of supervision required. In order to determine whether the grievor was performing the work of his or her classification, or whether it was actually work of tax auditors of a higher level is dependent,by the nature of the work to a large degree on documentation. The union urged the Board to consider the testimony of its witness, and, as in the usual course, weigh each one's testimony We do not find that it would be possible to properly consider the work performed in this way, when the substantiation of the nature of the work performed is So dependent upon documentation. Although a grievor may be able to recall some of the files that he or she worked on, unless there is documentation, it would be beyond the abilities of an ordinary person tom expect that a grievor could remember with any degree of precision the nature of 40 to 50 audits that were the average performed each year by each of the grievors from 1973 to 1976. Even Mr. Malloy who testified on behalf of the union testified that although he was aware that he did Tax Auditor 2 work while he was a Tax Auditor 1, and could recall some of the time which he spent on larger files, he would find it difficult to estimate the time that he spent on A level audits.' The Ministry'!3 policy is to reta~in only the last audit; however, the Ministry attempted to find the amount Of ..i . Page x time that the auditors spent on their files, but found that all the audit files have been purged. In addition the time sheets which the auditors had to hand in on a monthly basis, and records of their expenses, which may have been of assistance had been destroyed in accordance with the Ministry's policy to destroy these records after two to three years. Therefore the Ministry would not now be in a position to determine which files the grievors worked on and what work did they do. As found in Clements and The Crown in Right of Ontario, Liquor Control Board of Ontario G.S.B. 112/89 (Pritchard) a grievance may be dismissed where there is substantial prejudice going to the merits of the case through delay. The premise upon which this principle is founded is that an arbitration hearing must base its decision on a fair hearing. As stated in Re Shipping Federation of Canada Inc. (1967) 16 L.A.C. 174 (Weatherill): It is'our opinion that a board of arbitration ought not to refuse to hear the merits of a grievance except where it would be clearly improper to proceed. Certainly the grievor was entitled to a fair hearing of his case. A 'fair hearing' however must be fair to both sides.~ Because of the union's delay in sproceeding with this matter, a fair hearing has become impossible, since the employer has been .substantially prejudiced in the presentation of its case. It is clear to us that in these circumstances the matter is not arbitrable. We would emphasize that our determination on this point is no mere 'technicality': the requirement of a fair ,hearing lies at the very root of the notice of justice and it is precisely this which the union, by its delay, has denied both to the grievor and to the employer." ((1970) 20 L.A.Cc. 27 (Weatherill) at Page 30.) We find that although we have jurisdiction to hear ~. the case, the prejudice to the Ministry cannot-be overcome in anyway. There was no bad faith on the part of the Ministry in destroying its files, as they were done in the normal course and without any notice that the files may be needed. On the other hand, the grievers allege that they did work of another classification; however they did nothing. For example, it was. only when Mr. Malloy when he learned of payments being made which were not even shown to be relating to the same time in issue in this grievance, that he looked into his rights. He knew when he was a Tax Auditor 1 that he was doing work of a Tax Auditor 2 while he was a Tax Auditor 1, and he was a bargaining unit member and therefore had the expertise of the union at his hand, but he chose of his own accord, as stated in his testimony to ignore the union, "the union was not part of his life." There it was his own failure to look into this matter at the relevant time, that did irot bring the issue to a head. It is contrary to the philosophy in article 27.1.1 to encourage a speedy resolution to matters in dispute to wait until approximately 11 years after any entitlement allegedly occurred to institute a grievance. The unavailability of evidence does not of itself prevent the litigation of an issue; but where the grievors have effectively sat on their rights by performing the functions of another classification, and have not used the resources of the union which was at their disposal, they have effectively turned a blind eye to the situation, which then lead-the Ministry to detrimentally rely on their acquiescence and silence. Since the periods in question, the Ministry has made fundamental changes to the system without any knowledge that work assignment- and job ol~ass~ifications were in issue. The consiuerations of the interests and the damages to both parties imust be balanced. In this case through no fault of its own, the Ministry is now unable to prepare its case. The loss of its right to be fully represented and to be able to investigate the allegations made by the grievors fully, has been irretrievably lost. Accordingly it would be impossible to have a fair hearing at this time. The fundamental right of both parties toga fair hearing must be preserved. Therefore we have concluded on the basis oft the evidence before us and on the submissions of counsel that we are dismissing the grievances without hearing further evidence. we also acknowledged that the Ministry recognized that Mr. Lemay assisted at some time on the CN case, but again. there was no evidence that sufficient evidence is available to resolve his grievance. Accordingly, there is no basis upon- which td sever Mr. Lemay's grievance from the others. ‘i Therefore the grievances are dismissed. Dated at Toronto, this IZtMay of June ., 1991. B. A. Kirkwood, Vicechairperson R. Scott, Employer Nominee