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Home My WebLink About1993-0845.Dumas&Robertson.97-06-10ONTARn CROWN EMPLOYEES GRIEVANCE SElTLEMENT BOARD W~Wt~;E LA WlJRONNE COMMISSION DE ReGLEMENT DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON MS0 lZ8 TELEPtiONEfT&iPHONE : (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100, TORONTO (ON) h&G lZ8 FACSIMlLE@COPIE : (416) 3a-13Q6 / / . . GSB # 845/93, 846/93,._2452/94 I\ - CUPE # 92-111, 93-08, 93-61 .- IR THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE! BARGAINING ACT BefOr8 THE GRIEVANCE SETTLEMENT BOARD . BETWEEN CUPE 1750 (Dumas/Robertson et al) " '. Grievor - and - The Crown in Right of Ontario (Workers' Compensation Board) ! Employer BEFOR&: FOk THE GRIEVOR S.D. Kaufman Vice-Chairperson R. Carnovale I National Representative ' Canadian Union of Public Employees FOR TEE EMPLOYER E. Kosmidis Counsel Workers' Compensation Board HEARING February 15,' 1996 April 15, 16,1996 .November 19, 20, 21, 1996 _. ,~ DECISION , _ .. ., There are three grievances at issue: a province-wide group grievance’dated June 16, 1993 (Union, #l); the individual grievance of I,ise Dumas dated December 15,’ 1992; and the individual grievance of Frances Robertson, dated February, 15,1993 (Employer, #‘l). -- The group grievance states: Contrary to the terms of the. Collective Agreement, Vocational Rehabilitation -. Caseworkers are not being paid at the appropriate rate given the duration of service in the position and the satisfactory level of performance. Progression from minimum of 071 salary grade to position maximum at 072 involves 5 steps pver 4 l/2 years. Caseworkers are being taken through up to 7 steps over 6 years, fre- quently being penalized forabove average performance through a :“promotion” tied.to delegation of authority that ignores the progression factors of the Collec- tive Agreement. It alleges a violation of Schedules ‘.‘A” and “B” and any relevant sections of the Collective Agreement orCECBA, and requests “full redress for all affected Caseworkers, including placing them on the appropriate step and salary grade,on Schedule A, and paying the appropriate retroactive pay”. This decision will address the group grievance first and thereafter the individual grievances. - In addition to substantial documentary evidence, oral evidence was given:by Chief Vocational Rehabilitation Officer John Carroll, Manager of Corporate Training Jackie Gray-Moores, Articling Student Ken Bigeant, Manager of Compensation Administration Suzan Kucerak, former Rehabilitation Counsellor Carroll Page, C.U.P.E. &ocall750 Chief Steward John Madden, Vocational Rehabilitation Caseworker Fran Robertson, Supervisor of Admitting-& Discharge Brian Prowse, and Vocational Rehabilitation Caseworker Wayne Nicholls, one of the potentially affected employees, who also participated in the hearing. I am grateful to each of,the witnesses for their candour regarding their recall of administrative actions and decisions and the reasons behind them, which, in sqme cases, occurred over 10 years ago. a .- It should be noted that on April 16,1996, Counsel for the Employer advised that the .’ ,employer was withdrawing the issue of ability to pay, that all financial implications of the impact of the grievance were withdrawn, and that it would not request the Board to deal with those matters. Consequently, the evidence pertaining to that issue has been disregarded and does not appear in this decision. .I _: : ’ In the 1975-76 Agreement, Schedule “A” (Union, #4) stated, under the heading “Salary Scales and Classifications in the Bargaining Unit” _ _ The Employer shall pay salaries in accordance with this Schedule “A” and the Schedule shall apply to all employees in the classifications listed herein. During the period.of that agreement, the Senior Administrative Salary Scale contained - Levels 70 to 75 and a “Development Range!‘, ” Position Range” and “Merit Range” within each level. Each “Range” stated .a minimum to maximum annual,salary for each Administrative Level, from lowest in the “Development Range” to highest in the “Merit Range”. Below the schedule was the statement: : Note: The Position Range is the rate range for fully qualified and.satisfactory employees. ‘. During the period of that agreement, Salary Level 71 included the job title Rehabilitation Counsellor, 2 and Level 72 included the title ‘Rehabilitation Counsellor, 1. Mr. Beatty-considered the above note in Dupuis 5/77 (June 14, 1977). He stated that the Note &as “the sole standard against which employees must be assessed for placement in and promotion to the position range of any particular classification,” and “not some universally promulgated time period”. He concluded that Mr. Dupuis had met the standard which warranted that he be paid in the Position Range. On or about August 4,1977 the parties reached. a “Memorandum of Agreement” (Union, #73 regarding what they described as an “Incremental System”. It stated: .Pursuant to the Memorandum of Settlement and Imulementation dated June 16th, 1977, and concerning the “Incremental S&em”, the parties agree that; effective May 31, 1977, the attached Salary Scales for the Senior Administrative Salary Scale and the Clerical and Administrative Salary Scale replace the previous pertinent Salary Scales in the Collective ,Bargaining Agreement. : . . The Employer will continue to appraise the performance of employees and the salary adjustments indicated by the Incremental System is subject to such appraisals. Imnlementation Procedure The attached Salary Scales and their Incremental Schedules will be installed on the following basis: 1. 2. : 3. 4.a) b) 5. 6. ._ .:., :. ‘,.* . ..- .. The implementation applies only to employees who were in the Bargaining Unit on May 31, 1977, and,are,still employees of the Board. .,_ Each such employee.will be examined on the basis,of the job and salary grade the employee was in on May 31,1977. The length of time the employee had been on that job prior to that date will also be established for use in applying the increments. The first four steps in each salary grade in the Senior Administrative Salary Scale, (total time period of three years) and all steps in the Clerical and Administrative Salary Scale will be effective for eligible employees on May 31, 1977, based on the length of time set out in (3) above and the salary amount shown on the,Incremental Schedule for that grade. If an employee’s actual salary on May 31, is less than the amount ascertained in (a) above, and subject to the performance appraisal, the salary will be adjusted to May 31, 1977, otherwise no salary adjustment ,will be made. Example Where an employee has been in a job in Salary Grade 72 for nineteen months, the employee , would be eligible for $291.00 retroactive to May 31,1977. When the employee works on that job another five months, he will be eligible for $306.00, which would be effective at the time he completes twenty-four months. The fifth step in each salary grade in the Senior Administrative Salary Scale applies to an employee with 4 l/2 years or more on the current job. This salary amount will be available to each such employee on :his anniversary ,. or adjustment date subsequent to May 31;1977, and in any event no later than September 30, 1977. : In the Implementation Procedure set.put above, an employee’s salary entitlement is based solely on the job and’ salary grade on May 31 and his length of time in that job as of May 31, 1977. No attempt will be made to retrace history or establish relativity. The notes on the salary scales are not effective for this Implementation Procedure. Subseauent to Imnlementation Subsequent to the Implementation Procedure set out above being installed and implemented, the Salary Scales with their notes will be’applied’ on an ongoing basis. An Emulovee Above the Maximum of the Salarv Scale. An employee who, as a result of the attached Salary Scale, is above the new maxima set out will, until promoted to a higher Salary Grade, receive the full general increase negotiated in the future for his present job and Salary Grade. This does not apply to the existing Red Circle Employees or the Red Circle practice. . . . The parties agreed to the wording of Schedule “A” and the Senior Administrative Salary Scale in the October 1, 1976 to September 30, 1977 Agreement (Union, # ,8). The wording under the heading “Schedule ‘A’ ” included: The employer shall pay salaries in accordance with this Schedule and this Schedule shall apply to all employees in the classifications listed herein. The salary scales in this Schedule are established in accordance with the Memorandum of Settlement and Implementation signed by the Parties on June 16, 1977, and as revised by the Memorandum of Agreement dated August l&h, 1977. At this point, by the agreement of the parties, the Senior Administrative Salary Scale (SASS) changed substantially. The “salary levels” were identified as “Salary Grades”. Former Levels 71 and 72 were identified as New Salary Grades 071 and 072, Grade 071 again included the job title Rehabilitation Counsellor 2, and Grade 072 included the title Rehabilitation Counsellor 1. More significantly, the three “ranges” in the previous Salary Scale were replaced by six levels of weekly pay rates within each Salary Grade. The levels were identified as “minimum”, “6 months”, “further 6 months”, “further 1 year”, “further 1 year”, and “further **18 months”. The following notes appeared beneath the ,Oct. l/76 - Sept. 30/77 SASS (Union, #8): 1. The anniversary date is based on the date the employee commenced on the : current job. This may be either the date of hire or the date of a subsequent transfer. . . . 2. The time periods set out at the top of the columns are.reflections of the anniversary date set out in (1). 3. An employee who is promoted will have his salary adjusted to the next step he would have achieved had he not been promoted, and his future salary progression will thereafter be governed by the time interval for the next higher amount in his new salary grade. This is subject to the employee being paid a salary rate no less than the minimum rate for the new salary grade. ., _ I’ ?* An employee promoted from this step will receive a 5% salary adjustment if the promotion is only 1 Salary Grade. If the promotion is more than one Salary Grade, the employee will be paid one Salary ‘Grade higher in the 18 month step. On September 21,1977, in a memo to bargaining unit employees titled “Salary Progression Within the Salary Range” (Employer, #ll)the Executive Director of the Human Resources-Division Mr. J.G. Betts wrote: On August 10, 1977, I advised you that the Board was commencing a salary progression system-to provide advancement through the salary range, based on the length of time you have been in your current salary grade. This progres- sion system applies to those employees not already at the maximum of the salary range. The salary progression system has been agreed upon by the Union and is effective May 31st, 1977. From the 1976-77 agreement forward, the parties maintained a similarly structured SASS with 6 levels of weekly pay rates within each of Grades 071 and 072. It was not in substantial dispute that at this point and up to January 1, 1990, the parties adopted a time- driven standard for movement along the salary grid, and that generally, Rehabilitation Counsellors 2’and 1 received the pay rates stipulated in the 071 and 072 Salary Grades after having worked in that position for the periods of time stipulated in the SASS. At some point not established in the evidence, but prior to January 1, 1990, the following wording, which appears in the 1993 Collective Agreement, under the heading “Schedule ‘A’ I’, was added by the parties: An employee will receive notice of at least one month if, due to performance, the incremental increase is not to be received. The Section titled “Performance Review” in the Policy and, Procedure Manual dated May 31, 1978 (Union, #12) states that it’is the Board’s policy “that each employee receive a performance review at least once per year” -and: -.. . ..The performance review is not normally related to a salary adjustment, as this is governed by the incremental salary schedules. Under the subtitle “Discretionary Considerations” (p. 2 of 4) the Manual states As stated above, the performance review is not normally related to a salary review. At the discretion of the reviewer, however, a recommendation may be made, based on performance, that an employee should: 0 not receive the time-related adjustment set out in the incremental ‘\ ii) schedule in accordance with the guidelines set out in Policy 68.01.04, covering such considerations; receive an accelerated increase based on outstanding performance and in accordance with the guidelines set out in Policy 68.01.02, covering such considerations; iii) receive an increase into or within the merit range, based on out- standing performance and in accordance with the guidelines set out in Policy 68.Ol.03, covering such considerations; These discretionary considerations are to be accompanied by a Perfor- mance Review Summary (1524) specifically related to the -- recommendation. It is expected, however, that such recommendations would be made as a result of reviews of ongoing performance which “speaks of itself” rather than solely on the result of the specific performance review. The evidence did not establish the nature and contents of Policy 68.01.0214. However, it appears that the above-noted policy, signed by Mr. Betts, superceded all previous Policy statements on the subject of performance review, and reflected the employer’s view that it had and would exercise the right to withhold an increment due on completion of a specified period of time as a Rehabilitation Counsellor 2 or 1, in accordance with the time periods in the SASS, “due to performance” and could also provide “an accelerated . increase based on outstanding performance”. No evidence was given as to how this policy was administered. It is suggestive, but not conclusive, that the wording 1,. An employee will receive notice of.at least one month if, due to performance, the incremental increase is not to be received. may have existed in the collective agreement by May 31,1978. The Job Description for Rehabilitation Counsellor 1 (Employer,-#2), dated January 19, 1988 indicates that the Salary Grade for the position is 072, and that one of the basic requirements of the 072 position is that the incumbent have “a minimum of three years’ experience in related work as a Rehabilitation Counsellor. 2, with performance at a satisfactory levell’and “demonstrated superior ability to deal satisfactorily with difficult or complex rehabilitation problems”. - I John Carroll is currently the Chief Vocational Rehabilitation Officer, Client Services Division. He advised that the difference between VR Counsellor 2 and 1 was that a Counsellor 1 would have the expectation of more autonomy and latitude and would assist in training Counsellor 2s. Mr. Carroll had been .a Director of two Integrated Service Units since 1989. From 1980 to 1986 he was not involved with decisions around the 3 , \ < 7 promotion of Counsellors. However, during that period he designed job descriptions and kept them current. He also acted in an advisory capacity to managers and directors with respect to the format of and approach to performance appraisals. He confirmed that prior to January 1, 1990 Rehabilitation Counsellor 2s “automatically” or “semi-automatically” progressed from Salary Grade 071 to 072 “at 3 years”, with the exception of those Counsellor 2s with- performance problems, whose numbers were few. During the three pilot projects which were undertaken prior to January 1,1990, the Caseworkers were paid in accordance with Schedule A. No Special Allowances or . provisions regarding Delegation of Authority formed part of the pilot project. Mr.-Carroll, recalled as a witness on November 20,1996j advised that he had reviewed his personal records. He said that when he commenced his employment in 1975 as a ’ Rehabilitation Counsellor, he underwent an &week training program and following that worked for 18 months at the Downsview Rehabilitation Centre (DRC). He was not “progressed through delegation of authority levels”, which were only applied to people in the field and his record did not speak to such delegation of authority. He advised that his job at DRC was different from that of a Field Counsellor. As a Rehabilitation Counsellor, he was paid in the 071 Salary Grade. His wage rates were not different from those paid to Field Counsellors. He received increments without any consideration of delegation of. authority. He said that his evidence had not been influenced by the contents of the March 17 and April 17,1996 issues of “CUPE Local 1750 Update” (Employer, #22 & 23). By letter dated September 1, 1989, Human Resources Manager Jackie Gray-Moores advised CUPE Local 1750 President Carol Haffenden (Employer, #4) that, . ..the WCB’s Board of Directors has approved the Vocational Rehabilitation Strategy to be implemented effective January 1,199O. . . . The position of Vocational Rehabilitation Counsellor and Employment/ Placement Specialist will cease to exist on,;January 1, 1990: However, several new bargaining unit positions in salary grades 071/072 & 073 are being introduced as follows: Caseworker 071/072 Social Rehab. Counsellor 071/072 Placement Advisor 071/072 246 positions 19 positions 28 positions . . . A list of all employees in the positions affected by the Strategy is attached for your information. The incumbents of these positions will be notified of their status on September 7, 1989. . . . i s 8 On December 1,1989, Human Resources Specialist Irene Rumak sent a memo to Ms. Gray-Moores (Employer Book, Tab 5) which indicated, among other things, regarding the above positions: I’ . ..Factors to be used in the determination of the progression from one salary grade to the other must be identified. BACKGROUND’: In the past, promotion from a Rehabilitation Counsellor II’...to . ..I level was automatically determined by three years work experience as a Rehabilitation Counsellor II with performance at a satisfactory level. As as result of the Vocational Rehabilitation Strategy, the position of Vocational Rehabilitation Counsellor has become redundant and in its place three newly created positions have been-classified with dual salary grades, but with singular position descriptions. . ..The Vocational Rehabilitation Strategy Steering Committee...identified a need for a lower entry level (071) to the jobs, that would be of a reason- ably short duration, (six to twelve months) with progression to salary grade (072) based upon satisfactory performance, as opposed to the “time-driven” past practice of three years. Technically then, a correction must be made to the body of the three jobs descriptions. The correction must acknowledge the duties and responsi- bilities of the entry level position. Furthermore, performance factors/ measures in the progression decision from 071 to 072, must be identified and consistently applied throughout the organization. PROCESS: . . . The use of delegation of authority criteria was identified as a feasible means of determining when a employee was suitable for progression. An acceptable performance level in accordance with work standards, know- ‘ledge and appropriate application of W.C.B. policy could be evaluated by the supervisor,‘upon the continual review of an employee’. s work method and case recommendations. . . . RECOMMENDATIONS: . ..it is proposed that upon receipt of full delegation of authority, the employee in salary grade (071) be promoted to the (072) level. SUMMARY: - . ..it is proposed that salary grade (071) be recognized as a developmental stage for new hires which will involve training on the job, skill develop- ment and the gradual increase in decision shaking responsibility. Based on satisfactory performance accompanied by regular performance appraisals, the incumbent will progress through the stage? of partial dele- 9.. gation and be awarded full delegation of authority with-promotion to the (072) salary grade level. : Ms. Rumak did not testify. Mr. Carroll advised that in January, 1990 the employer introduced the Vocational Rehabilitation Strategy, in part to address the recommendations of the Majesky and _ -- Minna Report regarding Vocational Rehabilitation. The Strategy eliminated the positions of Vocational Rehabilitation Counsellor and Employment Placement‘specialist, and created the positions of Vocational Rehabilitation (VR) Caseworker, Social Rehabiliation Counsellor, Modified Work Program Specialist, Work-site Analyst and Job Opportunity Consultant (Placement Advisor). The VR Caseworker replaced the former VR Counsellor, but some counsellor functions went to the other positions. Mr. Carroll advised that under the Delegation of Authority protocol, a new Caseworker is considered at Level 0 or A during a 13-week training period and for the first while on the job. The next level of Delegation of Authority is named Level 1 or B. The subsequent level is titled Level 2 or C; it is characterized by more autonomy . The next level is the top level, called Level 3, or D. A Caseworker is moved to Salary Grade 072 when s/he is granted the top level of delegation of authority. A performance appraisal which demonstrates that the employee’s performance warrants the assignment of Delegation of Authority Level 3 is required in order for the employee to move from Salary Grade 071 to 072. No financial impact study was done when the decision to adopt this structure and criteria was taken. The employer expected that Caseworkers would benefit from earlier delegation of authority, and the employer would benefit from workers becoming more autonomous earlier, as opposed to client service being provided through management. Asked how staff were advised as to the standard they had to meet to’ receive full delegation of authority, Mr.Carroll said “it was based on the administrator’s assessment of their competence”. Both before and after January 1, 1990, there were no minimum requirements, criteria, or “must haves” which a Counsellor or CaseworkerIhad to or must meet in order to move from Level 0 to Level 3. When asked how a Caseworker knows ., when he qualifies to progress, Mr. Carroll advised that it was a decision of the manager, in discussion with the employee. Jackie Gray-Moores is currently Manager of Corporate Training. In 1989 she was the Manager of Employment Training and was involved with the Vocational Rehabilitation I - : .I i’ 1.0 Strategy. She and her staff dealt with Human Resources and the union issues flowing from the Strategy. She advised that the “role” of Caseworker was at the core of the .change. The former “Vocational Rehabilitation Counsellor” concentrated :on counselling. The Chief Executive Officer wanted to concentrate on getting the employee back to work, and to focus on the employer. In her letter of September 1,1989 to Ms. Haffenden, her notation of “071/072” after Caseworker, Social Rehab.- Counsellor and Placement Advisor referred to the Salary Grade assigned to the new positions. She said that she did not view 071/072 as “the same as each other” and noted that each grade had a different salary range., The Vocational Rehabilitation Counsellor 2 and 1 positions wereelim’inated. She and Mr. Carroll and others “reworked the description of Caseworker” She could not remember whether there was a Caseworker 1 and 2. She explained that reference to “371” was predicated on “3”, which previously identified employees on a 40-hour or “irregular-hour” work week. She said that expertise or special skill was not required for movement of a Counsellor from 071 to 072. If the Counsellor “sat in the job for 3 years, [s/he was] automatically promoted”. Whether an employee was hired internally or externally “off the street” was of no significance; after three years the Counsellor was moved from 071 to 072. It was simply “time-driven”. She agreed that before December of 1989, a Rehabilitation Counsellor position at Salary Grade 071 was considered an entry level position. She stated that the Board wanted to “get away from” time-driven movement, “into skill and performance-based promotion”. Movement from ‘one salary grade to another r , constituted a promotion. Human Resources’ intention in implementing the “Delegation of Authority” criteria for movement from 071 to 072 was to move to a merittprocess. She acknowledged that she had never considered whether moving from 071 to 072 was “progression” as opposed to “promotion” and that she did not know whether the terms “progression” and “promotion” were used interchangeably. She acknowledged that she did not know the basis upon which promotion to 072 would be effected, the criteria, if any, that were established for progression from 071 to 072, nor how entitlement to payment on the 072 scale would be determined. Ken Bigeant was an articling student with the Board’s Legal Services Dept. He reviewed -. a random sample of 84 of 313 Human Resources files on February 15,1996, as to whe- ther managers had directed their minds to whether there was a promotion. He advised that 67 (79%) of the 84 files contained performance appraisals associated with the move- ment from 071 to 072 and 17 (21%) of them had memos saying the director had met cer- tain performance requirements and should be moved. In cross-examination, he said that I_ - the words “delegation of authority” and “promotion” were not used in conjunction in all 84 files but that all the files indicated that the person was being given the Level 3 Delega- tion of Authority and should be given 072. I-Ie had not noted whether the employees whose files were reviewed came from within or outside the bargaining unit. Suzan Kucerak, Manager of Compensation Administration, advised that she had been in the compensation field since January of 1991. From 1976 to about 1982 she had been a Vocational Rehabilitation Counsellor, ultimately reaching a supervisory level. She remained in the Vocational Rehabilitation area, working in the Vocational’Rehabilitation Division of the French Language Ad Hoc Working Committee in 1984 and 1985, and as Project and Procedures Co-ordinator in the Vocational Counselling Branch in 1985 and 1986. She became Acting Administrator of the Vocational Counselling Branch in 1986 and 1987, managing 3 Team Co-ordinators and 21 Counsellors in the Mississauga, Peterborough/Cobourg, Thunder Bay and Toronto areas. From i987 to 1990 she was the Manager of the Toronto West Integrated Service Unit, during which time she implemen- ted and piloted the Vocational Rehabilitation Strategy. For 7 months in 1990 and 1991 she was seconded as Acting Manager, Human Resources. She was Senior Staff Compen- sation Specialist from 1991 to 1994, and Coordinator, Salary Compensation Policy, from 1994 to 1995. I Ms. Kucerak said that she commenced her employment with the Board as’ a Vocational Rehabilitation Counsellor 2 and became a Counsellor 1 three years after her start date. In 1982 the Board started to hire temporary employees to help with volume. In 1987-88 a rule, that if the temporary employee became a permanent one, their probation date became their anniversary date, and they had to work 3 years from their probation date to move to Salary Grade.072, was rescinded. After 1988, but prior to January 1, 1990, as long as the performance of a temporary employee was satisfactory, if s/he was in his/her position in excess of 3 years,.s/he was paid on-the 072 Salary Grade. , Ms. Kucerak referred to a series of pages in the WCB Human Resources Division Administration Procedures Manual on the subject of “Promotional Reclassifications”, dated August 12,1982 (Employer, #20). Page 1 states that a “promotional reclassification” . ..is defined as a change in an employee’s job classification in which the new salary grade is higher than the old \ , /’ ‘; 12 -_ . ..entails a change in the employee’s job number and job title. Salary grade ‘. changes and salary increases. The employee’s position number (responsibility code) may or may not change. Ms. Kucerak advised that the following passage at page 6 under the same subject, Rehabilitation Counsellors 2 who are promoted on their increment date to ’ -.- Rehabilitation Counsellors 1 after 3 years receive both-their regular incremental adjustment and their promotional adjustment says that Rehabilitation Counsellor 2’s who are promoted to Rehabilitation Counsellor 1 on their 3rd-year anniversary receive both their “incremental and promotional adjust- ment”. In cross-examination, with respect to p. 6 of Employer #20, and a question as to whether an employee is hired from internally or externally is promoted on :the same basis, she said that if the employee is hired to a permanent Rehabilitation Caseworker position, promotion occurs after 3 years. In cross-examination, Ms. Kucerak agreed that management’s policy regarding applicants in competitions for 071/072 positions who apply from bargaining unit positions is that they must be hired in the 071 Salary Grade, notwithstanding some experience in the posi- tion. She said that management considers their past experience in deciding whether to I hire them and does not place a successful bargaining unit (internal) applicant in the 072 Salary Grade. The experience of a bargaining unit applicant is not considered in determi- ning the Salary Grade on entry. Under “the old method”, prior to 1990, non-bargaining unit employees’ work experience could be considered in determining the Salary Grade on entry, and they were not required to commence in the 071 Salary Grade. After 1990, she advised, if a vacancy was posted for a Caseworker position, bargaining unit employees, non-bargaining unit WCB employees, as well as people external to the WCB could apply, and ability and experience, but not necessarily as a Caseworker, were necessary. Ms. Kucerak agreed that the practice of moving Vocational Rehabilitation Counsellors from the 071 to the 072 Salary Range after they had completed 3 years irrthe Counsellor 2 position changed in 1990, and promotion was thereafter based on merit and ability. She said that the effect of “early promotion” on salaries was that some benefited financially and some did not, depending on where they were in the salary grid. In cross-examination, Ms. Kucerak initially said that the “3-year rule” was not affected by 1 levels of delegation of authority prior to 1990. She agreed that prior to 1990, the longest an employee would require to receive the maximum wage rate, having started at either Minimum, under either Salary Grade, was 4 l/2 years. She later said that an employee . could move from 071 to 072 as a result of delegation of authority-under both “the old” and “the new method”. In cross-examination, Ms. Kucerak advised that if an employee leaves a progressional job having been paid in the 072 Salary Grade, it is-posted at Salary Grade 071’. -’ A successful -.--applicant without any previous experience would enter on the 071 Salary Grade. Others _--. have left the position from the 072 Salary Grade and are re-hired in the same. Salary Grade. That is a management decision. When asked in chief how the promotional rules and the salary increments ,have been applied since 1990, she said: the date of hire is the anniversary date; the commencing salary will not always be at the minimum’of the 071 scale; outside experience is credited; if an employee is “promoted” to 072 from Step 2 of the 071 Salary Grade, s/he would be paid at the level of Step 3, on the 071 Salary Grade, which would fall between Steps 1 and 2 on the 072 Salary Grade, and his/her anniversary date would become the date of promotion; after 1990, if an employee is receiving a salary at the maximum of the 071 Salary Grade (Step 5)but is not “ready for promotion” despite having been in the position for 3 years, s/he will remain at that salary level; ’ w both before and after 1990, if an employee is receiving a salary at the maximum of the 071 Salary Grade (Step 5) and is promoted to 072, s/he receives a 5% increase in salary, as a result of the note in Schedule “A” of the Senior Administrative Salary Scale which provides: **An employee promoted from this step will receive a 5% salary adjustment if the promotion is only 1 Salary Grade. Ms. Kucerak said in cross-examination that it was possible for a Caseworker to be removed of delegation of authority; she said they would be moved to 071 Grade. She advised that she assumed, but did not know whether, if a Caseworker’s delegation of authority was lowered from Level 3 (full) to Level 2, s/he would be paid at a lower rate. - L Ms. Kucerak advised that a “Personal Action ;Form” or memo signed by the Program Head or the Head of the Branch is the documentation required for either a “promotion” or an “increase” and to move someone from Salary Grade 071 to 072. . In chief, Ms. Kucerak advised that she had reviewed the material in preparation of a chart (Employer, #16A) indicating the numbers and proportion of those Caseworkers, Social Rehabilitation Counsellors and Placeplent Advisors affected by the “delegation of autho- rity” method. In the course of the hearing Employer, #16A was replaced by #16B. In 9 14 r cross-examination, she advised that she did not create either #16A or B, and agreed that she took responsibility for them. From the review undertaken, the employer concluded that 97 or 29.75% of 326 employees benefited under the delegation of authority criteria for “promotion”, and 121 or 37,.120/o did not benefit, i.e. were receiving below the salary level or received less salary during the period reviewed than they would have received under the pre-1990 method of movement from Salary Grade‘071 to 072, >6 or 17.18% were “not affected” by the subject of these grievances “due to performance issues”, and were promoted from Salary Grade 071 to 072 three years and three months after their date of hire, and 52 or 15.95% were characterized as “cost neutral”. She advised that some employees were promoted from 071 to 072 earlier than at the end of three years and that “they would be impacted by this grievance”. She agreed that Caseworker, Social Rehabilitation Counsellor and Placement Advisor positions were “progression jobs”; In re-examination, she said that she had no knowledge of any of the 56 employees who were “not affected” having grieved their promotions. In cross-examination, Ms. Kucerak said that the note in Schedule “A” at the commencement of the various Salary Scales in the collective agreement (p. 75) An employee will receive notice of at least one month if, due to performance, the incremental increase is not to be received. , did not apply under the new method, “because there is no set time when promotion is to occur under the new method”. She agreed that under “the old method” the 56 employees who were identified in Employer #16B as “not affected by the grievance” should have received one month’s notice. After 1990, the delegation of authority method of progres- sion or promotion from Salary Grade 071 to 072 was applied to the Casetiorker, Social Rehabilitation Counsellor and Placement Advisor positions. She agreed that all incumb- ents of those positions have been treated the same under “the new method!‘, “in principle”. In reply evidence on November 20, 1996, Ms. Kucerak clarified that in 1995, owing to a “local agreement” under the Social Contract Act, the increments payable between June 14, 1993 and June 13,1994, were restored. Ms. Kucerak advised that other than the document “re Delegation of Authority”, she was not aware of any document which would outline to Caseworkers, Social Rehabilitation Counsellors and Placement Advisors how the criteria are applied to determine movement from 071 to 072. Lise Dumas; The employer declined the Union’s offer to make Ms. Dumas available for cross- examination. On November 20,1996 Mr. Carnovale advised that the Union would not call Ms. Dumas to give evidence; and stated that the documentation before the Board pertaining to Ms. Dumas was sufficent, and that she was covered by her individual grievance.and the policy grievance. . Ms.‘Dumas commenced her employment as a Vocational Rehabilitation Counsellor 2 on May 16,1988, at the pay rate at the Minimum step in the 071 Salary Grade on the SASS. Six months later, on November 16,1988, she received the pay rate for Step 1. A further six months later, on May 16,1989 she received the pay rate for Step 2,071. On March 30,199O she was “promoted” to the 072 Salary Range. In accordance with Note 3 below the SASS, her salary was increased at that time to the Step’3,071 level, which was the step she would have’progressed to had she not been “promoted”. The Step 3,071 pay rate was between the Step 1 and 2 pay rates in the 072 Salary Grade. .Ms. Dumas was permitted to “progress” along the 072 Salary Grade six months after her new March 30, 1990 “anniversary date” in accordance with the time intervals along the 072 salary level. Ms. Kucerak referred to a chart (Employer,-#18) regarding Ms. Dumas’ pay rate and increment and “promotion” history. She said that Ms. Dumas’ case was an example of someone who did not benefit from “the new method”. She said that Ms. Dumas was hired as a temporary VR Counsellor on May 16,1988 and on July 22,1988 became a Field Rehabilitation Counsellor, working 40 hours a week. Her pay rate was adjusted on that date to reflect her increased hours and she was paid at the minimum rate on the 071 Salary Grade. She.received a general increase on October 1,1988 and her six-month Step 1,071 increase on November 18,1988. Her start date as a temporary employee remain- ed her anniversary date to this point. On December 30,1988 Ms. Dumas’ status changed to that of a probationary employee. On May 12,1989 she ,received her six-month Step 2, 071 increase. She received a general increase on October 1; 1989. j Ms. Kucerak advised that on January 1, 1990 under the new Vocational Rehabilitation Strategy, Ms. Dumas’ job changed. She became a Placement Advisor, working 36.25 hours per week, instead of 40 hours a week. As a result of the decrease in’her weekly hours, her pay rate was decreased, but remained at the Step 2, 071 level. On March 30, 1990, less than 2 years from May 16,1988 when she commenced her employment as a temporary employee, Ms. Dumas was “promoted” to Salary Grade 072. She was then ? \ 16 entitled to receive a pay rate.increase according to Note 3, Schedule A, equal to “the next step she would have achieved had he not been promoted”, i.e. Step 3,071.: That pay rate fell between Step 1 and 2 on the 072 Salary Grade. Ms. Kucerak said that the collective agreement required the employer to pay Ms. Dumas at the Step 3 rate on. the 071 Salary Grade for six -months before she was entitled to the Step 2 rate on the 072 Salary Grade. Because under “the old-method” Ms. Dumas would not have received her .“promotion” on ’ March 30,1990, Ms. Kucerak said, Ms. Dumas “began to benefit”. The date of her “promotion” became her new anniversary date, whereas it had formerly been May 16, .- 1988.* Ms. Kucerak advised that on May’ 18, 1990, under “the old method” Ms. Dumas would have received her l-year Step 3,071 increment. On September 28,1990, under “the new method”, in relation to her March 30,199O “promotion”, Ms. Dumas received the six- month Step 2,072 pay rate; On October 1,199O she became entitled to a general increase. Under “the new method” herincreased pay rate was about $13.00 more per week than it would have been under “the old method”. On May 17,1991, her third anniversary under “the old method”, Ms. Kucerak said that Ms. Dumas would have received her one-year Step 4,071increment and would have been receiving a higher pay rate than she was receiving under “the new method” at Step 2,072. ; Ms. Kucerak advised that on September 27,1991, under “the new method”, Ms. Dumas was entitled to receive the-one-year Step 3,072 increment. On October 1, 1991, Ms. Dumas received a general increase. Ms. Kucerak advised ‘that Ms. Dumas’ pay rate was still higher under “the new method”. On October 2,1992, under “the new method”, Ms. Dumas received her one-year Step 4,072 increment which, Ms. Kucerak noted, was higher than the salary she would have received at that point under “the old: method”. On November 13, 1992, under “the old method”, Ms. Dumas was entitled to receive the 18-month Step 5,071 increment. She would have been entitled to a “3-year. : .’ promotion” only on January 1,1993; three years after she was given a “new job”. On April 4, 1994,18 months after October 2, 1992 when she received her one-year Step 4,072 increment under “the new method”, Ms. Dumas received her 18-month Step 5 increment on the 072 Salary Grade. Ms. Kucerak advised that as a result, Ms. Dumas received less wages under “the new method” than she would have under “the old . method”. In reply evidence, Ms. Kucerak confirmed that after 1987, the time a temporary employee “. worked in his/her temporary position was cohsidered in determining entitlement to incre- _I_ ments, and the temporary employee’s anniversary date was ‘his/her initial start date as a temporary employee. Seniority by and large determined whether Vocational Rehabilitai tion Counsellors received their choice of the new positions, Vocational Rehabilitation Caseworker, Placement-Advisor and Social Rehabilitation Caseworker; Ms. Kucerak later said that employees were invited to state their preferences as to which of the “new positions” they wanted; and a panel determined into which position each would be placed, based on skill, ability and seniority. with respect to Ms. Dumas’.history (Employer #18) Ms. Dumas was not at the maximum Step when her job was changed from Counsellor to Placement Adviser on January ?, 1990. The change of job. had the same function as a promotion. As a result, because she was at Step 2 in the 071 Salary Grade as a Counsel- lor, when she became a Placement Advisor, she was paid at the Step 3 level, 071 Salary Grade and January 1,199O became her new anniversary date. Prior to 1994, an em- ployee’s anniversary date changed with a change of job, regardless of the Salary Grade s/be was in. Ms. Dumas became entitled to the one-year Step 3 increment on January 1, 1991. The change of job on January 1,199O “interrupted the flow in the 071 range”. The increment she was paid on May 18,199O (Employer, #18) may have been’an error. * The Step 4,071 increment was due January 1,1992 and the Step 5,071 increment was due 18 months later, i.e. July 1,1993. Under the “three-year rule”, Ms. Dumas was entitled to promotion on January 1,1993, three years from the anniversary date of January 1,1990, and if she had been promoted on January 1,1993, January 1,1993 would have become{ her new anniversary date. On January 1,1993, Ms. Dumas was in theory entitled to be paid at Step 4,071. On promotion on January 1,1993, she would have gone to step 5 of the 071 Salary Grade, and would have moved to Step 4 in the 072 Salary Grade. *Subsequent to Ms. Kucerak’s reply evidence, Ms. Kosmidis advised that Ms. Kucerak was mistaken when she said there were errors in her calculation of the old method re Dumas in Ex. 18. Recalled again, Ms. Kucerak advised that although Ms. Dumas was given a new job of Placement Advisor on January 1,1990, this did not give her a new anniversary date. Originally it had given her a new anniversary date. A memo from the Vice President of Client Services (Employer, #34) directed a return to her old anniversary date. As a result, Ms. Dumas’ anniversary date reverted to May 16,1988, and the increments were calculated from that date. However, Ms. Kucerak advised, the memo precludes l’&. Dumas from being promoted on her third-year anniversary i.e. May 16, 1991. In re-examination Ms. Kucerak advised that she was Acting Manager of Human Resources on June 29, 1990 when the memo was created. She said that she had had no 18 input into it. She understood that compliance with the collective agreement was the concern underlying it; she said that she had no details. The memo dated June 29, 1990, titled “Anniversary Date Reinstatement” (Employer #34) is addressed to “all Vocational Rehabilitation Caseworkers, Social Rehabilitation, Counsellors and Placement Advisors”. It states: On January 1,199O the position of Vocational Rehabilitation Counsellor was made redundant and the incumbent employees were assigned to the position of Vocational Rehabilitation Caseworker, Social Rehabilitation Counsellor and Placement Advisor. In accordance with the rules of schedule A of the Collective tg;grent each of these employees’ anniversary dates was changed to January , . Although this action was proper in view of the provisions of the Collective Agreement it did adversely impact some of the employees. In the spirit of treating bargaining unit staff fairly, the Board is prepared to reinstate the anniversary dates of the affected Vocational Rehabilitation Caseworkers, Social Rehabilitation Counsellors and Placement Advisors. The principles which we believe should apply in this situation are as follows: 1. - -The Employer should be protected from an inappropriate escalation of an employee’s salary which might.arise in the absence of the anniversary date provisions in Schedule “A”. 2. Employees should be protected from adverse salary: effects by retaining their previous anniversary dates where the Employer initiates a lateral move to another job for which the employee requires limited additional training of less than one month. The application of these principles would result in the following: (a) a new anniversary date will always apply when an Employee initiates the change of job as aresult of either a promotional *. competition or a request for transfer; @I a new anniversary date will not apply in the case of an Employer initiated lateral move to another job that requires less than one month’s training because’of the transfer of present skills. This would not be true when there is-a need to acquire new or different skills taking longer than one month of training or where the change of job results from work performance considerations; (4 a new anniversary date will not apply when an Employer initiated change of job results in a downward reclassification and the employee is given a two year continuance of regular increases followed by red circle salary protection. While we have discussed these proposals with the Union we have not been able to reach full agreement on the principles outlined above. . . - ~._- -- .i -. ! i >\‘ 19 In the interest of fairness to those impacted by this action and to avoid any further delay we are proceeding to reinstate the anniversary dates for all Vocational Rehabilitation Caseworkers, Social Rehabilitation Counsellors and Placement ! Advisors. In each of your cases your anniversary date will revert back to the date existing prior to the January 1, 1990 reassignment. We will also process any increments that were delayed-as a result of the initial anniversary date change. - E. Kaegi M. Czetyrbok Sr. Vice-President Sr. Vice-President I Central Client Services Regional Client Services _ The memo characterizes the assignment of former Rehabilitation Counsellors to the positions of Vocational Rehabilitation Caseworker, Social Rehabilitation Counsellor and Placement Advisor as an Employer-initiated “lateral move to another job for which the ’ employee requires limited additional training of less than one month” and .“reassignment” rather than a “promotion”. It directs that such employees should retain their previous anniversary dates. One of the.stated purposes is to protect employees from adverse salary effects. The memo is.silent with respect to “promotion”. Ms. Kucerak initially declined to state what Ms. Dumas’ increment entitlement would have been if she had been entitled to move from 071 to 072 on May 16,1991, her third anniversary. She referred to the .’ “Exception” at p. 6 in the “Promotional Reclassifications” section of the Administration Procedures Manual (Employer, #20), which.provides r Rehabilitation Counsellors 2 who are promoted on their increment date to Rehabilitation Counsellors 1 after 3 years receive both their regular incremental adjustment and their promotional adjustment. and to the requirement in the Job Description for Rehabilitation Counsellor 1 for 3 years’ experience as’a Rehabilitation Counsellor.2 as the basis of her view that in order for Ms. Dumas to be promoted as a Placement Advisor she was required to have 3: years in that position. When asked how the job description for a Rehabilitation Counsellor applied to a Placement Advisor, she replied, “from my perspective, you need to be in the job 3 years to be promoted”. With-respect to Employer #18, Ms. Kucerak advised in reply that on May 17,1991, Ms. Dumas received the one-year Step 4,071 Salary Grade increment, which raised her pay ..- rate to $773.93. If she had been promoted at that time, she would have received the pay rate at Step 5,071, which was then‘$827.75, the same rate as at Step 4,072 per the SASS (Employer, #14, p. 2). In re-examination of her reply evidence, Ms. Kucerak agreed that her position was that the position of Placement Advisor is a new job. She said it did not exist before 1990. - -. _~ 20 Ms. Kucerak advised that there are three “ways” in which a bargaining unit employee receives a Ipromotional increase”: ;: through a posted vacancy; an employee in a progressional job, e.g. an RV Caseworker, meets the criteria for promotion from 071 to 072; 3. their position 1s classified upwardly; Movement from one Step to another is an “incremental increase”, based on the employee’s time in the position; it is not a “promotional increase”. In re-examination of her reply evidence, Ms. Kucerak agreed that vacancy, progression and upward reclassification were all treated as promotions. She agreed that over the last few years, progression positions designated as being in Salary Grade 071~972 were not posted, nor were reclassified positions. She said that “reclassifications effected through grievances” are considered promotions. When asked for her authority for that conclusion, she said that the Manual (Employer #20):says that they get their “incremental adjustment and promotional adjustment”. She agreed that May 16,199l is three years from May 16, - 1988 and that if the union’s interpretation of the collective agreement is correct, Ms. Dumas should have received an incremental increase and a promotional increase on May 16,1991, as a result of which the amount by which Ms. Dumas “did not benefit”, would be much higher than the amount ($115.86) calculated in her chart (Employer #18). She agreed, regarding the figures in the right-hand column of her chart that if the union’s theory was correct _ -the pay rate as of 17 May 91 would have been $827.75, reflecting both the one- year Step 4,071 increment and a promotion -the duration figure should be changed from 133 to 137 -the pay rate change due to,a general increase as of 1 October 1991 would have been $836.03 -the pay rate on 12 November 1992 would have changed to $893.90 with tbe general increase. She agreed that .I&. Dumas’ pay rate was frozen at $877.83 due to the effect of the Social Contract Act, and that she missed, the increase by 2 weeks., - r Ms. Kucerak said that a number of affected employees took other positions subsequently, and their second promotions are based on the earlier one. If the employer were to correct the salaries retroactively, payroll would have to consider whether an increase or a reduc- tion in salary was warranted, and adjust overtime and travel time, salary differentials if the employee had been on a special vacation, cashed-out vacation pay, incremental in- creases, leaves-of-absence, union dues and SUB benefits paid. She agreed that superan- . 21 2 nuation contributions would all have to be recalculated. She said that this recaiculation _. was not included in Employer. #16 - 18. In-cross-examination, she agreed that she would have to do those recalculations if the positions were reclassified, and in other circumstan- ces and that such calculations are not unusual and are part of the daily work of her department, although they require more time of her staff. Wavne Nicholls: -. With respect to salary charts regarding Wayne Nicholls (Employer #19), ,a potentially affected employee who attended and participated% this hearing, Ms. Kucerak advised that Mr. Nicholls had been a non-bargaining-unit employee of the WCB and his salary was higher than the maximum in the 071 Salary Grade before his July 19, 1991 date of hire as a VR Caseworker. On his entry into his bargaining unit position,,he was paid at the maximum in the 071 Salary Grade. On October 1,1991, he received a general increase. On July 17,1992, one year after his date of hire into the bargaining unit, he was a) promoted to the 072 Salary Grade, and b) received a 5% “promotional’increase” in accordance with the note marked ” ** ” following the SASS in the collective agreement. On December 4,1992, he moved into a management position and received a “promotion- al increase”. Under “the old method” he would have remained at the Step 5 maximum wage rate until 3 years after his July 19,199l date of hire. Under “the new method” he was promoted one year after his date of hire. He benefited by $836. in the period from July 17, 1992 to December 4, 1992, when he left the bargaining unit for a management position. On September 2, 1994, Mr. Nicholls returned to the bargainmg,unit. His salary in the management position was higher than the 072 Salary Grade maximum. He was paid at the Step 5 maximum in the 072 Salary Grade. Under “the new method”, from September 2, 1994 to March 31,1996 Mr. Nicholls earned $4,687.82 more than he would have under “the old method”, Ms. Kucerak concluded. In cross-examination, Ms..Kucerak advised that she was not aware of any collective agreement provisions respecting the salary of a non-bargaining-unit WCBemployee when s/he enters a position in the unit. The collective agreement sets out’ the minimum and maximum salary range of the position they enter. The employer is unable to pay such an employee more than the wage rates set out on the Scale, except in circumstances of an organizational or technological change. She agreed that Mr. Nicholls would be unable to assert rights respecting such changes as a person outside the bargaining unit. As the collective agreement contains no provision regarding the entry salary, management decides, in its discretion, the salary of a non-bargaining unit employee entering such a I .- - b. .c 22 \ position. Its practice is to lower the salary of a non-bargaining unit employee who is / earning in excess of the.maximum of the Salary Grade(s) of the bargaining unit position, to the maximum of the Salary Grade(s). She agreed that the collective agreement contained no specific wording on this subject, .and that there had been no negotiations between CURE and management regarding this subject. - In reply evidence, Ms. Kucerak said that under “the old method”, when.Mrr Nicholls re- entered the bargaining unit on September 2, 1994, he would have been paid at the maximum of the 071 range. His anniversary date became September 2, 1994. He would __ have remained at Step 5, 071 for 3 years, i.e. until September 4, 1997, when he would become entitled to be promoted. Becausehe would have been at the maximum of the 071 range when promoted, he would have received a 5% increase on the Step 5,071 pay rate, which would put his rate between Steps 4 and 5 of the 072 Salary Grade, and he would have been eligible for-the Step 5,072 increment eighteen months after his Rromotion to 072, i.e. on March 2, 1999. In cross-examination on her reply evidence, Ms. Kucerak agreed that the figures in her salary chart for Mr. Nicholls (Employer #19) under “New Method” reflect Mr. Nicholls’ actual pay rates. She agreed that on July 17,1992, one year after enteringthe bargaining unit, he was promoted to 072through the Delegation of Authority System. When Mr. Nicholls left the bargaining unit in December, 1992, his salary was $877.83, due to his promotion ($836.03 plus 5%). When he re-entered the bargaining unit in 072 in 1994, the Branch decided he had full delegation of authority as of the date of.his re-entry into the bargaining unit, and be entered at the maximum of the 072 Salary Grade, “with nowhere to go”. She did not know whether the level at which he was placed in 1994 was a unilate- ral decision of management. When asked whether anything in the collective agreement authorizes the employer to determine the pay rate .of employees entering bargaining unit positions from non-bargaining unit positions, she replied that “the policy on downward reclassification or voluntary demotion” was the practice and that nothing in the agreement precluded it. . Mr. Nicholls gave evidence on his own behalf. He said that in 1991 he was a Senior Claims Adjudicator andreceiving a salary above the pay rate at Step 5, 071. When he becamea Vocational Rehabilitation Caseworker, his pay rate-was dropped to the Step 5, 071 level. When he was offered the job he was told that his salary would be lowered and that he could not have a raise, that that depended on Delegation of Authority. He said he “asked about progression” and was told if he could demonstrate his ability,, he could - - 23 “progress” to the 072 Salary Grade quickly. He did that, and one year later, he regained the salary he had lost in 1991. In December, 1992 he accepted a non-bargaining-unit position as a Vocational Rehabiliation Technical Advisor. He.remained in that position until October 4,1993, when the position was designated as “redundant”. He then became a Future Economic Loss (F.E.L.).Adjudicator, until September 2,1994 when he was --. .~ successful in a competition for a Vocational Rehabilitation Caseworker position. As a F.E.L. Adjudicator, he was earning above the maximum in the 072 Salary Grade, The employer agreed that he was qualified for placement in the 072 Grade and he was paid at ._ the Step 5 rate. He has since become a-F.E.L. Adjudicator again, and at this point the-- position is within the bargaining unit. He would not have re-entered the bargaining unit in September of 1994 if he had been paid in the 071 Salary Grade. Be submitted letters from Chief Steward John Madden to him, dated February 12,1996 (Emp’loyer, #35) and from Bruce Homer and Ralph Carnovale to him, dated February 2,1996 (Employer, #36). ,’ Frances Robertson: Ms. Robertson’s grievance states that on October 27, 1989, she was promoted to Voc. Rehab. Caseworker at Step 3, 071 and that the employer’s practice was to “promote” counsellors when they received their increment from Step 3 to Step 4 within Salary Grade 071. Suzan Kucerak agreedi with respect to a comparative salary chart for Ms. Robertson (Employer #17), that Ms. Robertson had benefited by $1,231.09 from a promotion from 071 to 072 which occurred earlier than the third anniversary of her date of commence- ment. In cross-examination, Ms. Kucerak advised that Ms. Robertson was initially paid at the Step 3, Salary Grade 071 level when she entered the position, because “the rules of the bargaining unit were applied in her case”. On October 1,1990, Ms. Robertson received a general pay increase., On October 16, 1990, she received her one-year Step 4, 071 increment. She received-another general increase on October 1,199l. On April 24, 1992, eighteen months after receiving the Step 4 ,071 rate; she received the Step 5,071 increment. At this point she had been in the position about 2 l/2 years. She was, accor- ding to Ms. Kucerak, promoted retroactively, effective May 28,1992, due to a grievance (which did not form part of the evidence). Because Ms. Robertson was receiving the 071 maximum, and the note marked ” ** ” following the SASS applies to those who are at the maximum and who are promoted, her promotion entitled her to a pay increase of 5% of the Step 5,071 Grade rate. The pay rate she received with the 5% increase fell z -. .-_ ._ - 24 _/ : between the rates at Step 4 and 5 of Salary Grade 072. On November 26, ,1993 , eighteen months after May 29,1992, Ms. Robertson received the Step 5;‘072 pay rate. Ms. Kucerak said that under “the old method” Ms. Robertson would have remained at Step 5,071 until her third anniversary from October 29, 1989, her date of hire, i.e. until October 27,1992, instead of having been promoted to the 072 Salary Grade on May 29, 1992. Shelater said that under “the old method” Ms. Robertson would have had to wait a further 18 months from October 27,1992, when she was promoted and began receiving a-rate which fell between Step 4 and 5 on the 072 Salary Grade, to receive the Step-S, 072 rate. Under “the new method”, she received the Step 5,072 rate 18 montbs after her May 29, 1992 date of promotion, i.e. November 26,1993, rather than on April 27, 1994. In reply evidence, Ms. Kucerak produced Ms. Robertson’s Personal Action Form (Employer #33). It indicates that it was processed on July 28; 1994, to be effective May 29,1992, and’that Ms. Robertson’s salary grade starting May 29,1992 would be 072 and _ her actual pay rate would be $877.83 (i.e. 5% more than the 071 maximum of $836.03). Ms. Kucerak advised that ordinarily the Comment section of the Form simply indicates that full delegation of authority has been granted, or a memo stating that the employee has received full delegation of authority must accompany the Form. The Comment section of Ms. Robertson’s Form was blank and no memo accompanying the Form was produced. Ms. Kucerak advised that May 29,1992, the day of Ms. Robertson’s promo- tion, became her new anniversary-date, that she received a 5% pay increase, moved to between Steps 4 and 5 of the 072 range, and eighteen months after May 29,1992, i.e. November 26, 1993, she was entitled to the pay rate at Step 5,072. On cross-examination of her reply evidence, Ms. Kucerak considered the June 29, 1990 Memo titled “Anniversary Date Reinstatement” (Employer #34) and her charts regarding Ms. Robertson’s pay rates (Employer #17B). She agreed that her charts indicated Ms. Robertson benefited from the application of the new method. She agreed that under the old method, Ms. Robertson entered her position on October-27, 1989 at the Step 3,071 pay rate and was paid at Step 4, 071 on October 27,1990, and at Step 5,071 on April 24, 1992. She agreed that Ms. Robertson’s 3-year anniversary date was October 27,1992. She was asked why Ms. Robertson was not entitled to receive both her promotional increase and incremental increase. She replied that Ms. Robertson had reached the Step 5 maximum on April 24,1992, and was not due another increment at that time. The only adjustment she could have was the 5% adjustment. The promotional reclassifications . . ‘_ I -‘.: . . 2 8 25 policy (Employer # 20, p. 6) only refers to people who start at the minimum pay rate in a . - salary grade. It does not apply to people who start in the middle of a salary grade. The Union consented to the Employer cross-examining Ms. Robertson on the basis of her handwritten grievance (Employer, #l) and documents in the Union’s Book of Exhibits _--- (Union, #14,15; 18,19,21,22 and 23). Ms. Robertson agreed that she became a VR Counsellor iKOctober, 1989 in Salary Grade 071. Union #15 and Employer #17B indicate that she was initially paid at Step 3, 071 and that one year later, October, 1990 she “Rrogressed” to the Step4,071. Employer #17B and Union #19 indicate that 18 - months later, on April 24,1992, she “progressed” to the Step 5 maximum in Salary Grade 071. Union.#15 dated March 17, ‘1993 indicates that on May 28, 1992 she was given “full delegation of authority” and “promoted” to Salary Grade 072, and received a 5% increase. The increase placed’her between Step 4 and Step 5 on Salary Grade 072. Ms. Robertson,acknowledged having received the 5% increase, which she said was paid retroactively to May 28,1992. She expressed the view that her receipt of the 5% increase was owing to her grievance. i Ms. Robertson did not dispute the suggestion that her position was that on October 27, 1990, when she “progressed” to Step 4,071, she should have been “promoted” to Salary Grade 072, one year after she had entered the position at Step 3,071. She agreed that management can “promote” an employee earlier than his/her third-year- anniversary, but said that the promotion should not impact on the time it takes the employee to reach the maximum, which should be 4 i/2 years. She said: My grievance is based on where I was on the scale. I started partway up the scale. The only thing it’s confirming is the double-jump. She agreed that she did not take issue with her salary in 1991. In re-examination her. attention was drawuto paragraphs 4 and 5 in the August 4,1977 Memorandum of Agree- ment between the parties. Ms. Robertson said that the current incremental system was not in the collective agreement before the Memorandum was negotiated. It established Steps in the salary grid. In the SASS, the first four Steps covered three years, and the fifth Step applied to an employee with 4 l/2 or more years of employment. At the time that the Memorandum was created, some employees had more than 4 l/2 years of employment with the WCB, and the Memorandum says that it should not,take longer than _ -_ 4 l/2 years to reach the maximum. The Counselling position was described as 071-072. The Memorandum said that the length of time to reach the maximum of 072 should not ~1 exceed 4 S/2 years. I __ ._ : _.. _ i 26 .r? In reply evidence, Ms. Kucerak disputed the statement “It was the practice of the _.- . Employer to promote counsellors when the increment from Step.3 of 071: to Step 4 of 071 was granted” in Ms. Robertson’s grievance (Employer #l) and said that the Employer’s practice was to promote Rehabilitation Counsellors at their third anniversary. The vast majority of them were hired at the minimum level of the 071 Salary Grade. At their third _.-. anniversary, the vast majority of Rehabilitation Counsellors were at Step 4 and accor- dingly received their “promotion” and entered the 072 Salary Grade. The “promotion rules” say that when promoted, you receive the increment of.the next Step you would - have progressed to had you not been promoted~Thus, when they reach-Step 4 in 071 on their third anniversary, they receive the Step 5,071 increment and are “transposed” to Step 4 of 072. This is what is meant by “the Double Jump”. It applies to the majority of counsellors, but,not to all of them. It generally takes 3 years to get to Step 4. Ms. Kucerak advised that a Rehabilitation Counsellor could reach Step 4 in less than 3 years if s/he entered the Counsellor position from another WCB.position.’ She said that ’ Ms. Page started at Step 3,071 rather than the minimum, got to Step 4,071 after one year, and to Step 5,071 eighteen months later, i.e. to the 071 maximum in 2 l/2 years. However, once there, unless she was promoted she could remain there until her third anniversary, at which point under’the “old system” she would be entitled to be promoted to the 072 Salary Grade. Ms. Kucerak advised that-a “progressional position” is “a developmental position”. It takes time and a body of experience before the incumbent moves on to the next grade. Before 1990, at the end of three years, a Vocational Rehabilitation Counsellor, and not the Specialist, received the Step 4 increment and a promotional increase, which increases their pay rate to the next Step in the same Salary Grade. Step 5 in 071 is transposed to Step 4 in 072. If an employee’s commencing pay rate is above the minimum of the 071 Salary Grade and s/he reaches Step 5, 071 before three years in the position, at three years they receive a 5% promotional increase, which places them between Step 4 and 5 in \ - the 072 Salary Grade. . ) Carroll Pape: -- Carroll Page appeared pursuant to a Summons served upon her by the Union. She presented a computer print-out of her Work IIistory (Employer, #21) as a Rehabilitation Counsellor. She advised that she had been in the employ of the Board for 26 years, having started as a secretary. She became~a Rehabilitation Counsellor on May 4, 1984. -. .- _.- -. -- _ _ . -_ _ -.. .-. 21 She worked at Downsview for about 2 years, then within the Commutation Unit within Rehabilitation for 2 years, then for’the Integrated Service Unit. At Downsview, she interviewed clients who were to be treated there, had a small caseload of discharged patients, counselled clients and went out to worksites. She agreed that she,progressed through the-increments on the 071 scale within’two‘years of having become a Rehabilita- tion Counsellor. Her Work History indicates she received a general increase on October _- -.. -.- 1, 1984, an increment on May 3, 1985, general increases on October 1, 1985, April 1, 1986, and October 1,1986, and was moved to the 072 scale and received a pay increase on October 31,1986, about 2 years and 5 months from the date she became a Rehab. Counsellor. Ms. Page said that.she was never told that she was getting an increment. .She advised that she “experienced different delegations of authority”, and knew that to have occurred because she “did training programs”. She thought she had full delegation of authority as of October 31, 1986. She said that she was simply advised that she had it, but was unable to recall the process. She said she believed that she began to work in commutations around August of 1986, but that she did not have full delegation of authori- ty at that time. She said that her personnel file did not contain a record of any delegations of authority. In cross-examination, Ms. Page was shown page 2 of the March 17,1996 issue of “CUPE Local 1750 Update” (Employer, #23). She said she had never read it before. She was then shown a chart which counsel for the employer advised her was her work history, prepared by Ms. Kucerak (Employer, #24). She said that she did not know whether she was promoted to the 071 Salary Grade as of May 4,1984. She agreed that the entry for October 31,1986 indicated that she was promoted and received an increment and that her promotion to 072 occurred two years and five days after her start date as a IRehabilitation Counsellor. She said that she did not examine her personnel file for the reason for her promotion, but only for evidence of delegation of authority. Her file was produced to her and she was asked whether she could find anything in it that indicated a promotion. She advised that her Performance .Review dated June 7,1987 identified her as a Rehabilitation Counsellor 1, but did not indicate the reason; she said that she was already at 072. She said that the July 28,1986 Performance Review (Employer, #25) did not indicate whether she was a Rehabilitation Counsellor 1 or 2. The July 28,1986 Performance Review (Empioyer, #25) states that effective August 18, 1986, Ms. Page would be assuming the duties of a Rehabilitation Counsellor in the Commutations and Pension Advances Section. The Performance Review Summary dated _- _ i .z 28 April/87 (Employer, #26) indicates that 8 months after August, 1986, Ms. Page was a Rehabilitation Counsellor I, at Salary Grade 072, and that she had been in the job 8 months. Ms. Page agreed that the July 28, 1986 Performance Review was done before her change from 671 to 072 and that she was “due” an increment on November 4, 1986 and that she was also promoted to 072 then. - In re-examination, Ms. Page advised that her current Branch Secretary gave her the Work History (Employer, #21). She said that the Performance Review summary dated April, 1987 was signed by James Pompa and Paul Nolis and agreed that it pertained to her period in Commutations. She agreed that the July 86 Review (Employer, #25) dealt with her employment at Downsview. She said her duties as a Rehabilitation Counsellor in the two locations were somewhat different. Brian Prowse, Supervisor of Admitting & Discharge, Health Records, Downsview Rehabilitation Centre, was called by the Employer in reply evidence. He advised that he started working for the .WCB in 1978 as a Rehabilitation. Counsellor. From 1980 to lb82 he was a Senior Vocational Rehabilitation Specialist, which was a promotion to a first- ’ line management position; He was Administrator of Vocational Rehabilitation at the Downsview Rehabilitation Centre from 1982 to 1986, and subsequently, Manager of Head Office of.the Integrated Service Unit, In 1986 Carroll Page reported to him. Prior to 1990, the movement of employees from the 071 to the 072 Salary Grade was “time- driven”. He said that he was unable to explain why Ms. Page “progressed,” from 071 to 072 some 2 years and 7 months after first .becoming a Rehabilitation Counsellor. Mr. Prowse said that he could not recall how long he had been Ms. Page’s.supervisor but that he was no longer her supervisor at the time that she was “promoted” to 072. He acknowledged that he had signed her Performance Review (Employer, #25) and had sent it to Mr. Nolis with the memo. He acknowledged he had told Mr. Nolis that something ! had to happen. He acknowledged that Mr. Nolis’ signature and the date September 3, 1986 appears beside it on the second-last page of the Performance Review. He agreed - that Mr. Nolis signed the performance review before November of 1986, and that the Branch Secretary made up a form to approve a salary increase. The current process is the same as the old one. The secretary notifies the salary administrator. Four people, the Worker, the Team Coordinatorithe Supervisor and the Administrator all look at the form before it goes out. i. -_ ? 29 In cross-examination of her reply evidence, Ms. Kucerak agreed that in receiving a pay rate of $657.56 on October 31,. 1986, Ms. Page was at Step 5 of Salary Grade 071. She said that Ms. Page would receive the maximum in 072 “eighteen months after the promotion”,.i.e. “May 4, 1987”, which was Ms. Page’s third anniversary from’her May 4, ..__. 1984 start date in the position.- She then agreed that Ms. Page would receive the 072 .__ maximum on November 4, 1988, which was 4 l/2 years after her May 4, ,1984 start date. - ._ When asked how”the mandatory 3 years” related to Ms. Page, Ms. Kucerak said that there had been an error. When asked how the 3-year rule applied to an employee who entered at Step 3 of Salary Grade 071, she said that an-employee could enter the position at the maximum of the 071 Salary Grade and remain there for 3 years. That was the practice. She agreed that such a person; if promoted, would receive the 5% increase, which would put him or her between Step 4 and Step 5 of the 072 Salary Grade. When it .was put to her that the collective agreement says that such a person moves in 18 months, she replied that she did not believe the agreement said that. She said that a person could enter at Step 3 and be at Step 5 eighteenmonths later. She said that that employee should remain at Step 5 for another eighteen months “if the ‘3-year-rule’ applies and then move up”. She said she was not aware of it having been possible to promote an employee to the 072 Salary Grade based on merit before 1990. Ms. Kucerak’agreed that under “the old system” an internal applicant entering the position at the maximum of Salary Grade 071 could remain at that pay rate for 3 years, and that an external applicant could not be promoted before the expiry of 3 years in the position. Ms. Kucerak was asked when, after February, 1990, an external applicant who enters the position at the minimum level of Salary.Grade 071, would be designated as 072. She replied that that would depend on when the person received full delegation of authority, which could take from 5 to’6 months to 4 to 5 years. If a Caseworker begins at the minimum of Salary Grade 071, and receives full delegation of authority. after 6 months, s/he receives the next Step increment s/he would have received had s/he not been - appointed. At 6 months, that Caseworker receives his/her Step 1 grade 071 increment, and the following day receives the next Step s/he would have been entitled to had he not been promoted, i.e. Step 2 grade 071. That places him/her between the minimum and Step 1 of the 072 scale. The anniversary date becomes the date of promotion, Six months after the date of promotion, s/he will receive the next increment on the 072 scale, i.e. Step 1. Under the new scheme, the employee takes 4 l/2 years from the date of “promotion” to achieve the maximum of the 072 salary scale, as the anniversary date is no ’ longer the date of hire. In reply evidence, Ms. Kucerak reviewed and explained the “Salary History” she had prepared concerning Carroll-Page. (Employer, #24). Ms. Page started her employment .- .---. with the Board as a Rehabilitation Service Controller on November 30, 1978. She was - promoted to the position of Rehabilitation Counsellor II on May 4,1984 and was paid the Step 3,071 rate. Her anniversary date was changed to May 4,1984, due to the promo- -tion. She received a general’increase on October 1,1984. On May 3, 1985, the first anniversary of her promotion to Rehabilitation Counsellor, she received the Step 4,071 increment. She received general increases on October 1,1985 and April 1 and October 1, ’ 1986. She was due to receive her Step 5,071 increase on November 4,1986,18 months after her Step 4 increment. The practice is to adjustthe increase to the nearest Friday, which was October 31,1986. Her pay rate was increased to $657.56, the Step 5, 071 ’ maximum at the time. At the same time, she was “put in” Step 4 of the 07i Salary Grade. Ms. Kucerak said “it was an error to have promoted her to ,072”. Had she been promoted, she would have received both her incremental increase (to Step 5,071). as well as the 5% .-.. increase. Ms. Kucerak said that she did not know why Ms. Page did not receive a 5% increase and that she supposed that she received only the Step 5 increment because she had not been in the position for 3 years. John Madden, the Union Advisor at the hearing, also gave evidence on behalf of the Union. He said he started his employment with the WCB on April 1,1986 and ’ completed his probation on October 1,1986. On May 29, 1986 a Training Evaluation of Mr. Madden “based on nine weeks of initial training” was prepared (Employer, #28), which Mr. Madden said he received at the end of the training program. On September 26, 1986, R.H.Witzke, Team Coordinator, North Bay Area Office, wrote a memo (Employer #27) to L. Lecky, Administrator, Central Team 4 indicating Mr. Madden had “successfully completed his probationary (temporary status) as of October 1, 1986” and recommending that he “be entrusted ‘Full Delegation of Authority’ within the guiding principles and limitations in the V.R.D. manual, document 44-14-01 to 44-14- 02”. Mr. Madden said that he was given full delegation of authority on October 6, 1986. He said that at that time delegation of authority “had less to do with money and more to do with time”, and that as of October 6,1996, he was authorized to approve training prog- rams of up to 6 months for clients. In cross-examination, he said that when he received .- -_ _. __- -- .- : .--- ..__ _-.- - _ -)’ ‘i 31 “full delegation of authority”, he had the same authority as people who ‘had been there for . 20 years. If the training program was approved by the Board and was of 6 months or less duration; there were no limits regarding the cost. He said he had the authority to place a client on any form of Workers’ Compensation pension on such a course, and the client .~ ’ would automatically.receive tuition, books, transportation, room and board, exploratory financing and any other reasonable costs. He said that after October 1, 1986 he was a --. - Rehabilitation Counsellor and was paid at Step 1, 071. Prior to,working for the WCB, Mr. Madden had tutored people at Lakehead and Hamilton Psychiatric Hospital with a Professor of Psychiatry from McMaster University, had been a Mental Health Counsellor for 6 to 8 years, had been Director of Mental Health at Atikokan General Hospital, and had been Regional Director of the March of Dimes for North-Eastern Ontario for 2 years. He said that those jobs did not impact on the speed with which he received “full delega- tion of authority”. He later said that it might have helped, and that he supposedit might have caused the employer to hire him. Mr. Madden said that he received a Step 1 six-month increment in October, 1986, and another increment to Step’2,071 six months later (April, 1987). After another 12 months he received another increment (Step 3, April, 1988). Three years after his April, 1986 date of hire, his paycheque increased substantially . In 1990 he became Chief Steward and investigated how employees were moved through the Salary Scale. He said that he went through the negotiating history and understood that when an employee reaches Step 4 in the 071 Salary Grade, s/he receives a “Double Jump”.. As a result, when he reviewed Mr. Horher’s letter of February.l3,1990 to Mr. Mucci. (Employer, Ex. 6), he wrote to Mr. Homer and and advised him that the Union did not agree with his proposals. Mr. Madden said that a “Double Jump” refers to the receipt of the Step 5 increment achieved by progressing from the minimum pay rate to Step 4 in the 071 Salary Grade in 3 years, and the movement at the same time to Step 4 in the 072 Salary Grade. ‘Mr. Madden said that despite the implementation of the “Delegation of Authority” method in January, 1990,18 months after April, 1989, i.e. in October, 1990, he received the increment at the maximum (Step 5) of the 372 Salary Grade, which.parallels the 072 Grade. A Memorandum from Gaston Godin, Manager Area Offices -to Human Resources Specialist Sylvia Ricard dated October 4, 1989 (Employer, #29) indicates that Mr. Madden “progressed” to Step 4 of 371 in April, 1989, but “should have progressed” to Step 4,372 at that time. His memo requested Sylvia Ricard to pay Mr. Madden the weekly difference of $49.54 retroactive to April, 1989. This request was implemented -_ -._ s 5 -32 and he was paid at the Step 5,372 Grade retroactively to 7 April, 1989. The Employee Information Change form (Employer, #30 ) cited October 10, 1990 as his next increment date, which was 18 months after 7 April 1989. Mr. Madden said that he did not know anyone who did not have the “Double Jump” that he did, before 1990; it tias standard. Prior to 1990, one went automatically from Step 5 of 071 to Step 4of 072. - - - - During Mr. Madden’s evidence, the parties agreed that the practice of moving employees from Salary Grade 071 to 072 at the end of 3 years was a consequence of the Dupuis - decision, and its source was the Administration Procedures Manual (Employer #20, p. 6) and the statement:: Rehabilitation Counsellors 2 who are promoted on their increment date to Rehabilitation Counsellors 1 after 3 years receive both their regular incremental adjustment and their promotional adjustment. Arpuments: For the Emdlover: In order to manage its business, the employer has an inherent right to promote. The collective agreement does not state that an employee will be promoted at Step 4 or at any time. It sets out the rules for increments and promotions. Those have be& followed. The employer can retain the right to promote at its discretion as long as the collective agreement is not violated. It has not been violated. Before 1990, the WCB used time-driven criteria in determining when to promote, i.e. a 3- year period in the position. The evidence is uncontradicted: 1. The evidence of John Carroll, the Board’s Chief Rehabilitation Officer. His resume shows he has 11 years in Vocational Rehabilitation. ~ 2. Suzan Kucerak’s evidence of her own personal experience as a counsellor and then as a manager,who promoted people at the three-year-mark. She has spent 14 years in Vocational Rehabilitation at the WCB. Her evidence was based on the promo- tional reclassification document (Employer, #20). She gave examples of two employees who entered the position at the maximum pay rate and remained there for three years before they were promoted- 3. Brian Prowse’s evidence confirmed that promotion occurred at three years and anything else was a mistake. ..- . -- ..__. ,.’ 33 3 4. The two separate job descriptions of Rehabilitation Counsellor 1 and 2 (Employer #2) had separate salary grades. The Rehabilitation Counsellor 1 position had a prerequisite of 3 years’ experience as a Rehabilitation Counsellor i. ’ 5. The memo of Irene Rumak dated December 1,1989 (Employer #5) speaks ., to the existence of-the three-year rule and why it was necessary to change it. 6. The. letter dated February 13, 1990 (Employer #6) indicates, that - “promotion from one level to the next was based solely on length of satisfactory work experience in the position”. -- 7. The letter dated-October 21,1993 (Employer #9) clearly sets out the employer’s position. 8. Mr. Madden’s Human Resources file (Employer #29 and #30) corrects the situation in which he was not promoted at the 3-year point, contrary to board policy. Tab 29 indicates he should he should have received his promotion on April 10,1989, because he started on April 10,1986. He remained at 071 after April lo,1989 instead of being moved to 072. The memo, dated October 4,1989, was made 6 months after his 3-year anniversary date, and corrects an error in Salary Grade and promotes him. ‘A promotion is a change in Salary Grade from 071 to 072. Despite the rhetoric and the March 17, 1996 CUPE Local 1750 Update. (Employer #23), only one person came forward to disprove the 3-year rule. There is no evidence to refute ’ the existence of the 3-year practice. There is evidence to support it. The Employer was unable to find anyone to give evidence as to how the practice came about. The Employer submits that the Dupuis decision (Employer, #12) caused the 3- year mark to be used. Mr. Dupuis was promoted from 071 to 072 when he had been on, the job for 3 years, but receivedno more money. There were only 3 salary scales at the time: Developmental, Position Range; and Merit Range. Mr. Dupuis was still being paid at the Developmental Range after 3 years. The case does not say a worker must be promoted a_t 3 years. It indicates that the standard for “Position Range” in the Note of Schedule A is “fully qualified and satisfactory”, and speaksto Mr. Dupuis”exceptiona1 performance. It says that an employee must be paid in Position Range when “fully qualified and satisfactory”. This has become the 3-year rule. The Employer agrees that it had the right to promote before the expiry of 3.years. Nothing in the collective agreement says you must be promoted at 3 years. It is simply a practice that evolved, which changed in 1990 because Bill 162 placed greater emphasis on Vocational Rehabilitation. 2 Q 34 ’ Bill 162 brought the WCB into the 20th century. Its purpose was to try to make people go back to work and supported the importance of the dignity of work. It tied rehabilita- --tion to benefits, and tried to compensate people as individuals and as a whole. S. 10(i) permits a deceased worker’s spouse to apply for a Vocational ‘Rehabilitation Assessment. -_ -.-- --- s. 45 introduced the non-economic loss (NEL) award, which provided compensation for _..~ -i---- pain and suffering.. S.~ 45(a) introduced compensation for future earnings loss. S. 54(a) speaks to, the Board having to do.certain things within specified and short time periods. It obliges employers, for the first time, to re-employ injured workers. The WCB was - required to change its approach to vocational rehabilitation and needed Vocational Rehabilitation Caseworkers to become more independent and autonomous, able to take on more responsibility more quickly, to comply with the legislative requirements. This was done by’changing the criteria for promotion from time-driven criteria to one which recognized skills and abilities to one which promoted employees when they were ready to be promoted. Ken Bigeant did a random sampling of files of Caseworkers promoted since 1990. He reviewed 84 files. 67 had Performance Appraisals and 17 had memos supporting a promotion. Fran Robertson’s Performance Appraisals (Union, #14) confirm.her performance and promotion. The collective agreement distinguishes between promotion and increment. Schedule A deals with them both. Increments are designed to compensate an employee who progresses in the same salary grade over a period of time. The WCB Report to staff dated September 21,1977 (Employer, #ll) indicates that salary progression is ybased on the length of time you have been in your current salary grade”. The Memorandum of Agree- ment dated August 4,1977 (Union, #7) indicates that ‘the “length of time the employee had been on that job prior to that date will also be established for use in applying the increments” and that “an employee’s salary entitlement is based solely on the job and salary grade on May 31 and his length of time in that job as-of May 31, 1977”. That wording appears throughout the memo. It indicates that reference must be made to the length of time the person has been in the job to determine eligibility for an increment. On the other hand, promotions are used to recognize movements from one grade level on the Salary Scale to another. The Employer submits that movement from Salary Grade 071 to 072 is a,promotion. They are two separate jobs, two separate job descriptions, and two separate salary scales., E 35 -r;, In fact; the salary scales contemplate what happens when you reach the maximum of the grade. The Salary Scales do not indicate that an employee is promoted when s/he reaches the maximum of the grade. In fact, you stay there if you are not promoted. Schedule “A” Classifications in the Senior Administrative Salary Scale”, at pp. 77-78 of the January 1 - December 31,1993 collective agreement list two separate job titles. Nowhere under , Schedule A is there an exception for progressional jobs. The normal rules, i.e. those set out at para. 3 and the note marked ” ** 1’ under the Senior Administrative Salary Scale, . apply. Nothing in the collective agreement deals with these jobs differently regarding promotions. Management’s right to manage is not in the collective agreement because it was covered by CECBA at the time of the grievances. The employer relies on s. 18 of CECBA, R.S.O. 1990, c. C.50. Evidence was heard regarding the financial effects of the new method on various employees. Mr. Madden’s evidence was that he received full delegation of authority at 6 months yet remained in ,071 for 3 years. He would be ahead financially if Zhe had been promoted earlier. Ms. Robertson argued she should have been promoted earlier; her position supports the employer’s actions. Ms. Dumas was held back. Mr. Nicholls took the positions on the basis of his understanding of the post-1990 promotional criteria, as did others. The Social Contract Act froze increments. Promotion was the only means of receiving a salary increase. There was evidence regarding Joint Job Evaluation and how the problem \Ivould be corrected. The issues in these grievances were issues for collective bargaining (Employer, #lo) and the parties should have addressed.it there. There is no evidence that the collective agreement has been violated. Accordingly, the grievance should be,dismissed. For the Union: . The employer wants the Board to believe that Bill 162 was the cause of its strategy. There was no evidence,lead regarding the intention behind Bill 162. None of the employer’s witnesses identified it as the driving force. Bill 162 is irrelevant. The collective agreement is still in place. This Board does not have jurisdiction to rule on the effect of ss. 7 and 1.8 of CECBA. The jurisdiction to do so is vested in the Public Service Tribunal and the Labour Relations Board. This Board does not have the jurisdiction to interpret ss. 7 and 18 of CECBA, or any question as to which CECBA applies. S. 40 was not repealed on February 14,1994. The right to interpret is vested in the Ontario Lab&r Relations Board. The issue of I whethels,7 or s. 18 applies has been decided in T19/81, a decision of Mr. Shime. It was an application under s. 42 of the Act. There is a subsequent decision of Mr. Weatherill. The employer creates the job. The parties can collectively bargain wage rates, etc. The Board-cannot amend, add to, or delete from the collective agreement. The employer can do what it wants with non-bargaining unit employees. Once Mr. Nicholls was appointed to a bargaining unit position he was under the jurisdiction of the collective agreement between .WCB and CUPE Local 1750. Local 1750 is the sole bargaining agent for all bargaining unit employees. The employer cannot strike separate deals with individual employees. It must negotiate with Local 1750 as to the wage rate on the scale at which such employees will be paid. That has been the practice. Counsel for the employer said “all normal promotional rules apply” and defined those as Schedule A, Note 3 and the direction at ” ** “. She said that a move from 071. and 072 is a promotion. If the Board concludes that that is correct, a serious problem: arises. Art. 5 deals with “Promotion and Staff Transfers”. Art. 5 promotions are predicated upon a vacancy. The move from 071 to 072 is neither a vacancy, a new position or a temporary vacancy. As a result, the move from 071 to 072 does not meet the criteria for promotions .- and the rules for promotions in the collective agreement. The September !,1989 letter from Ms. Gray-Moores to Mr. Haffenden,(Employer, #4)‘created the positions of Case- worker, Social Rehabilitation Counsellor and Placement Advisor.. Ms. Dumas went to Placement Advisor as a result of an organization change. Mr. Nicholls did not. So he was not affected by Art. 5.03. Art. 5.03 deals with “Eligibility to Apply for Postings”. Ms. Dumas got her job due to organization change under Art. 6, as a result of which no posting was involved. Art. 5.03 says that-postings do not apply if an employee occupies an identified progression position above the entry level, per Schedule B. Schedule B specifically identifies Rehabilitation Counsellors I and II as a progression position. The preamble to Schedule B states An employee who moves between the various levels in the occupational groupings listed below... . -- -. ._ ,.. The post-1990 positions, i.e. Voc. Rehab. Caseworker, Placement Advisor and Social Rehab. Counsellor are also listed in Schedule B. They are progression jobs according to Art. 5.03 and Schedule B. Despite this, the Employer maintains it has discretion and can act unilaterally regarding “promotion”. .- In his “Report to Staff” dated September 21, 1977 (Employer, #ll), Mr. Betts, Executive Director of the Human Resources Division, spoke of “a salary progression system to -- ~- provide advancement through the salary range, based on the length of time you have been in your current salary grade”. On February 13, 1990, in-his letter to CUPE Local 1750 dated February 13,199O (Employer, #6), Mr. Homer, Employee Relations Manager, says “three new positions would be considered as progression jobs: Caseworker, Social , Rehabilitation Counsellor and Placement Advisor”. He claimed that movement from one level to another was based solely on length of satisfactory work experience. His claim tias wrong. Movement from one level to another could happen earlier. Nevertheless, he described movement from one salary grade to another as “progression”. Assuming that the rules changed in 1990, the Board-must determine which rules changed. Mr. Home did not refer to a requirement of 3 years in the position as a prerequisite for movement from 071 to 072; he referred to length of satisfactory work experience, and the point at which an employee was able to accept full delegation of authority, which will vary from one person to another. ’ The union provided a chart (Union Example A) which, it submitted, demonstrated what occurred on an early promotion. An employee who is at Step 2,071 “would be progress- ed” to Step 3 after 12 months. If the employer promotes him/her after 10 months at Step 2, as set out in Example A, s/he is paid at the next Step rate s/he would have been entitled to if s/he had not been promoted, i.e. Step 3,071. The pay rate at Step 3,071 is between the pay rates at Steps i and 2 in the 072 Salary Grade. The early promotion to 072 will result in the person requiring 5 years and 10 months from the minimum Salary Grade in 071 to achieve the maximum in the 072 Salary Grade. In this example, although the employee receives a higher pay rate earlier than under the “three-year rule”, the earlier promotion is to their long-term detriment, as it takes them longer to earn the maximum in the 072 Salary Grade. It provided another Example (Union Example B). In this example, the employee began at the minimum pay rate in the 071 Salary Grade, received the Step 1 increment after 6 months, the Step 2 increment after a further 6 months, and the Step 3 increment a further .E % 38 12 months later. When the employee has been in the position for 2 years and 10 months, the employer grants him/her full delegation of authority and promotes him/her. S/he I receives the next increment s/he would ‘have received had s/he not been promoted i.e. Step 4,071. The Step 4,071 pay rate, is between Step 2 and 3 of the 072 Salary Grade. ,. ._ The employee is promoted to between Step 2 and 3,072. The next increments to which - s/he is entitled are the Step 3 increment in the 072 Salary Grade, 12.months after the promotion, Step 4,072 a further 12 months later, and Step $, a further 18 months later. As a result of the timing of this promotion, the employee requires 6 years and 4 months to - reach the maximum in the 072 Salary Grade. Mr. Madden’s chart (Employer #31) illustrates that “the traditional promotion” results in an employee who commences at the minimum pay rate in the 071 Salary Grade being promoted at the end of 3 years, from Step 4,071 to Step 4,072, and receiving the next increment to which s/he would have been entitled had s/he not been promoted, i.e. Step 5, 071, which pay rate is equal to the Step 4,072 rate, and achieving the Step 4,072 maxi- mum 18 months after the promotion, 4 years and 6 months after his/her initial start date. There is no authority for the three-year rule. The August 4,1977 Memorandum of Agreement (Union #7) has never been rescinded. The Employer highlighted para. 3 and 6 of the Memorandum. However, para. 4(a) states “The first four steps in’ each salary grade in the Senior Administrative Salary Scale, (total time period of three years)...” and para. 4(b) says “If an employee’s actual salary on May 31 is less than the amount ascertained in (a) above,. . . . the salary will be adjusted.to May 31, 1977, otherwise no salary adjustment will be made.” The Example in the Memorandum is in respect of Salary Grade 072. Para. 5 of the Memorandum states “The fifth step in each salary grade in the Senior Administrative Salary Scale applies to an employee with 4 l/2 years or more on the current job.” The Employer submits that Rehabilitation Counsellors 1 and 2 are two separate jobs. - There are two job descriptions and two salaries. HoweverJo conclude that this is a promotion ignores the statements of Mr. Betts and Mr. Homer (Employer; #ll and 6), .- ,-- - and Schedule B, which refer to them as progressional jobs. The 4 l/2 year rule, which indicates that it cannot take an employee more than 4 l/2 years to achieve the maximum in the 072 Salary Grade, applies. __ __ -- i..- __. - .-. __ --- .- - _... \ _ _ .. - ._ I The Union questions the accuracy of Ms. Rumak’s Memorandum (Employer, #5). Ms. Rumak was not called to give evidence. At the bottom of page 1, she wrote “performance factors/measures in the progression decision . . . must be identified”. The memo refers to _. _ .._ “three years work experience as a Rehabilitation Counsellor II”. In the second paragraph _. ..- - under the heading “Background” there is a reference to “dual salary grades, but with sin- gular position descriptions”. Singular position descriptions or combined descriptions do not exist. In the third paragraph under the same heading, she contemplated “a lower en- try level (071) to the jobs, . . . of a reasonably short duration . . . with progression to salary grade (072) based on satisfactory performance” and noted a ” ‘time driven’-past practice of three years”. The three years applies to new employees who enter at the minimum of the 071 range. The only ones the union could identify who fit that description were new em- ployees. Those who entered the positions from the bargaining unit entered at a further Step in the 071 Salary Grade, after receiving a 5% promotional increase. While the last paragraph on page 1 of the memo refers to “factors/measures in the progression decision”, the word promotion appears for the first time at the end of the memo. - _. .~ Mr. Picken’s June 21,1993 letter to the Union (Employer, #8) speaks of progression, although he says he-cannot reply to the grievance at this point. His October 21,1993 letter (Employer, #9) said that in the Employer changing its promotional practices there had not been a violation of the collective agreement. This was wrong, if in fact what is occurring is a promotion. The grievance was not denied on that basis. He denied the grievance in these words: In summary, to revert to the previous system would in fact create an overpayment to the majority of those staff in these situations. On the basis of fairness, I therefore must deny the grievance. It was denied on the basis of fairness. Ms. Kucerak’s figures (Employer, #16) indicate that Mr. Picken’s assessment of the impact of “the new method” wasmade on the basis of an erroneous belief that the majority of the employees had benefited from it. As Ms. Kucerak’s figures indicate that the vast majority would benefit from the application of “the old method”, the grievance should succeed. - The Union provided a copy of section 8:2320 on’!Progressive wage increases” from Brown and Beatty, Canadian Labour Arbitration Butterworths: Toronto, August, 1995 and submitted that the language of the collective agreement governs these: issues. It submitted that pages 6 to 7 of Communitv Living Niaoara Falls and S.E.I.U.. Local 204 (unpublished), April 8, 1996 (Tacon) are authority for the proposition that, the language of -, the collective agreement should be given its ordinary meaning unlessan absurdity.would. _ .-- ._ -- -_ - _.-- - -- - _. --- I . --. _- I - _. __ .Zi ‘- t result. The employer’s view would result in employees who are doing the same job for the same employer being paid different wage rates. Re School District No; 39 (Vancou- ver) and Vancouver Teachers’ Federation (1996) 53 L.A.C. (4th) 33 (Hope) indicates that the rules of interpretation require there to be a clear expression of an intention to confer a - - - financial benefit. Bottner (0247/88) and Aubin (0515/88) deal with anniversary dates. . . . -If the Board accepts the employer’s position regarding promotion, the-grievance must fail., If it accepts that what occurs is a progression, it must follow Aubin, supra, unless it can distinguish it, as well as Mattison (228/87). If the Board finds for the Union, it should refer to these cases regarding what to do about people who will have been overpaid. These employees should not be required to reimburse the employer. They are protected by the Emnlovment Standards Act regarding employers’ errors in payment, and by virtue of the passage of time, they should remain in the Salary Grades to which they are currently assigned. The union’s and- the employer’s evidence regarding Ms. Robertson’s grievance must be considered carefully. ’ Ms. Kucerak’s claim that Ms. Page was promoted in error, and Mr. Prowse’s statement that he was unable to explain how her promotion occurred, is insufficient to establish an error. There is no-concrete evidence from the people who effected the changes in Ms. Page’s Salary History as to whether it was an error. ‘. Although the employer submitted that the Union produced only one person who was promoted before three years, the employer’s own evidence is that 121 bargaining unit employees have been detrimentally affected by “the new method” as compared to 97 who were not. The grievance should succeed. Mr. Nicholl&on his own behalf): After I got the letter from the employer, it has been interesting. The evidence indicated - ._ that in 1990 there was a communication of a change from Counsellor to Caseworker, and a change in the rules of progression from 071 to 072. Mr. Picken’s letter in 1993 says that the Union identified a problem with the progressional rule: We are here 4 years later. I took the Caseworker positions because I could progress and recapture lost income. I was told the employer had the right to progress me as it did. The evidence has not established the accuracy of the employer’s chart (Employer, #16). The employer had the right to employ me and progress me. -_ --. -- _ - -. -. ---. / _ , _ r 41 ,; i The Emnlover’s Renlv Argument; Mr. Carroll referred to Bill 162 in his evidence. The legislation speaks for itself. ~. -- -:- We rely on s. 18 because there is no management rights clause in the collective ----agreement and>. 18 deems every collective agreement to have one. The Weatherill decision is-irrelevant. it dealt with the joint job-evaluation committee and1 has nothing to - do with promotion or anniversary dates. r - Art. 2.16 says the GSB cannot amend, add or delete. The Board cannot read in something that is not present in the collective agreement. * i The employer makes a contract with the.individual employee; that is acceptable as long as there is no violation of the collective agreement and the employer complies with the Salary Grades. The provisions in Art. 5 and Schedule B are present so that employees do’not have to apply for promotions. A promotion does not have to mean a salary increase. Schedule B does not deal with salary treatment. That is found in Schedule A. There should have .been a separate way of dealing with these jobs but there isn’t one. : There is no magic in the reference to a total time of 3 years in para. 4(a) of the August,’ 1977 Memorandum of Agreement (Union #7).’ This applies to movement, within the same job in the same scale. The words are not there. , . The terms “promotion” and “progression” have been used interchangeably in the memos. The memos do not determine the issue. The collective agreement does. ‘ The employer admits that some people were advantaged by the “new method--full delegation of authority”.and others were disadvantaged. I The employer provided a chart “Comparison: Promotion at 6 months v. 3 years” (Employer, Example A) which, it submitted, indicated that an employee hired at the .- minimum pay rate of the 071 salary grade and promoted to 072 six months later would earn $1,703.86 more than s/he would have earned if s/he had been promoted on his/her third anniversary. Under “the new method” the employee would reach the maximum at the end of 5 years, but would still be ahead in terms of earnings. The chart was prepared I in 1996. Mr. Picken’s‘letter was prepared 3 years earlier, in 1993. The Union should have brought the matter forward in collect&e bargaining, as Mr. Picken suggested. - .- _ .~ --- __ _ _ _ -- ~_- . _ ._ I- - i f 9 42 To accept the Union’s argument, the board must find that that 071/072 positions should be the same job and same classification. By agreeing to the collective agreement, the union has agreed that the jobs in question are two separate jobs, The title “Schedule A, Classifications in the Senior Administrative Salary Scale” appears at p. 77, of the . collective agreement and each classification is set out by Salary Grade. The GSB cannot deal with classification any more. Whatever your interpretation, you should remain seised with respect to implementation. Bv the Union: Don’t just remain seised. Resolve Nicholls, Dumas and Robertson. The Collective Agreement: The relevant provisions of the collective agreement are as follows: ARTICLE 1 RECOGNITION 1.01 The Employer recognizes the Canadian Union of Public Employees Local 1750 as the exclusive bargaining agent for all of its employees, save and except supervisors, persons above the rank of supervisor, and persons excluded by virtue of the provisions of the Crown Employees Collective Bargaining Act. ARTICLE 2 GRIEVANCE PROCEDURE 2.16 The Grievance Settlement Board shall have no jurisdiction to alter, change, amend or enlarge any .provision of the Collective Agreement. ARTICLE 5 PROMOTIONS AND STAFF TRANSFERS 5.01 When any new position is created within the bargaining unit, or any vacancy of a permanent nature occurs, or any vacancy of a-temporary nature occurs that is expected to exceed thirty (30) calendar days (for reasons other than vacations), the position will be filled in accordance with the provisions of this Article. *.. 5.01 “First consideration will be given to qualified employees who occupy the (a)&(b) same or, higher salary classification within .the bargaining unit who are: (a) affected by organization or other changes which have resulted, or are likely to result, in a reduction of workforce in accordance with I. ’ c- z 43 the criteria outlined in Article 6. (b) . . . ..- The placement of affected or handicapped employees shall be on the basis of seniority, provided the employee has the qualifications and ability to perform the required duties in a competent manner. Retraining will be pryvided to affected employees in accordance with Arttcle 6.06(a) and (b). . _~. . . . 5.01(c) All vacancies shall be posted on designated Boardwide bulletin boards . . ..- 5.02 Information in Postinns . . . . 5.03 EliPibilitv to ADD~V for PostinPs Consideration for a posted vacancy will be given to any employee who has at least three (3) months service in their current position. ,This require- ment does not apply if their current job was acquired as a consequence of technological or organizational change (Article 6) or they occupyJan identified progression position above the entry level as outlined in Schedule “B”. 5.04 InterviewinP of ADDlicants . . . 5.05 Role of Senioritv in Promotions and Transfers . . . 5.06 Trial Period . . . 5.07 Transfers Outside the Bargaininp Unit . . . 5.08 Notification to the’EmDlovee and Union . . . ARTICLE- 6 TECHNOLOGICAL AND/OR ORGANIZATION CHANGE 6.01 Definition In this ‘Article technological and/or organization change means the intro- duction of equipment, material, work functions, processes and methods, organization and geographic location, significantly different from that previously utihzed. 6.02 Adverse Effects to be Eliminated In introducing technological and/or organization changes, the Employer will make every reasonable effort to minimize or eliminate adverse effects on employees caused by such changes. - 6.03 Advance Notice and Information .- . ._ -- _ ~ 6.04 6.05 6.06 Retraining (9 When introducing technological and/or organizational change, the Employer shall notify the Union as far as practicable in advance of its intentions and provide updates as new developments occur. (ii) At least eighty (80) working daysin advance of the,change, the Employer shall, to the best of its ability, provide the Union with written notice as to the nature of the change, date of change, approximate number, job titles, location, name and seniority date of employees likely to be affected and the expectedeffects on employees and job descriptions and salary grades for all new or changed jobs as approved. Consultation The Union and the Employer shall meet at either party’s request with the intent of reaching agreement in good faith regarding any special provisions that may be necessary to assist affected employees beyond those contained in the Collective Agreement. Identification of Affected Emnlovees In notifying the Union in accordance with Article 6.03(ii) the Employer shall identify and advise those employees affected by the change, (9 whose present jobs will be significantly changed, 04 whose jobs will become redundant. (4 Where, as a result of technological and/or organizational change, an employee’s present position is significantly changed, requiring new or modified skills, such employee shall be provided with the opportunity for retraining. The Employer-will provide a period not to exceed eight (8) months for this retraining during which time the employee must acquire the skills required in the changed position. (b) . . . (c) *.. - . . . ARTICLE 18 PAYMENT OF WAGES AND ALLOWANCES 18.01 The employer shall pay salaries weekly in accordance with Schedule A -- --- attached hereto and forming part of this agreement. . . . SCHEDULE “A” THE WORKERS’ COMPENSATION BOARD ONTARIO SALARY SCALES AND CLASSIFICATION IN THE BARGAININGUNIT The employer shall pay salaries in accordance with this Schedule and this Schedule shall apply to all employees in the classif@ations listed herein. An employee will receive notice of at least one month if, due to performance, the incremental increase is not to be received. . . . _’ SC-+DUJJE “A” .- SENIOR ADMINISTRATIVE SALARY SCALE 1. 2. 3. * . . . (scale effective October 1,199l reproduced in Appendix A) The anniversary date is based on the date the employee commenced on the current job. This may be either the date of hire, or the-date’of a subsequent transfer. The time periods set out at the top of the columns are reflections of the anniversary date set out .in (1). Notwithstanding paragraph one, where an employee is transferred to a new position in the same salary grade, the anniversary date’will not be changed. An employee who is promoted will have his salary adjusted to the next step he would have achieved had he not been promoted, and his future salary progression will thereafter be governed by the time interval for the next higher amount in his new salary grade. In the event that the employee -is already at the maximum for that Salary Grade, he will have his salary adjusted to one time interval less on the higher salary grade. This is subject to the employee being paid a salary rate no less than the minimum rate for the new salary grade. **An employee promoted from this step will receive a 5% salary adjustment if the promotion is only 1 Salary Grade. If the promotion is more than one Salary Grade, the employee will be paid one Salary Grade higher in the 18 month step. SCHEDUL CLASSIFICATIO::A~ THE SENIOR ADMINISTRATIVE SALARY SCALE Salary Grade i’ .- 070 . . . - 071 Placement Advisor Rehabilitation Counsellor 2 . . . Social Rehab. Counsellor - . . . Vocational Rehab. Caseworker 072 Placement Advisor - 46 . . . Rehabilitation Counsellor 1 - . . . Social Rehab. Counsellor . . . Vocational Rehab. Caseworker SCHEDULE B ELIGIBILITY An employee who moves between the various levels in the occupational groupings listed below will not be subject to the three (3) month restriction from bidding on a posted vacancy. Upon initial entry into one of these occupational groupings, an employee will be required to meet the usual provisions of Article 5 Section 3. The occupational groupings are: Senior Administrative Salarv Scale Voc. Rehab. Caseworker 071 to Voc. Rehab. Caseworker 072 Placement Advisor Placement Advisor 071 to 072 Rehab. Counsellor II Rehab. Counsellor I 071 to 072 Social Rehab. Counsellor 071 to Social Rehab. Counsellor 072 S. 18 of CECBA, R.S.O. 1990, c. 50 stated: l, 18.(l) Every collective agreement shall be deemed to provide that it is the exclusive function of the employer to manage, which function, without limiting the generality of the foregoing, includes the right to determine, (4 employment, appointment, complement, organization, assign- ment, discipline, dismissal, suspension, work methods and proce- dures, kinds and locations of equipment and-classifications of positions; and . . - w merit system, training and development, appraisal and superannua- tion, the governing principles of which are subject to review by the employer with the bargaining agent, and such matters will not be the subject of collective bargaining nor come within the jurisdiction of a board. Reasons: Shortly after Dupuis (supra) was decided, the parties agreed to major and substantive restructuring of the Senior Administrative Salary Scale (SASS) to a time-interval increment system. Although there have been some modifications to the accompanying -- notes and changes to the pay’rates, the current SASS retains much the same appearance and structure in the 1993 collective agreement as in the 1976-77 agreement (Union, #8). Consequently, the Dupuis decision’s usefulness is confined to historical background as an aid to the interpretation of the provisions of the current agreement and the parties’ intended meaning as it applies to the dispute before the Board. -’ The language of the collective’agreement must be examined carefully to determine the parties’ intended meaning regarding movement from Salary Grade 071 to 072. The collective agreement refers to such movement, but only indirectly. It does not indicate the criteria for movement from one Grade to another, or the time when such movement will occur, with the exception of reference in the Notes under the SASS to “promotions”. Art. 5 does not clearly identify movement from one Salary Grade to another in the context of a “progression position” as a “promotion”. The word “promotion” appears elsewhere in the agreement in the Notes to the SASS, and’was used in the evidence to describe both the movement from one Salary Grade to another by an incumbent of a “progression position”, as well as the adjustments to the incumbents’ pay rates when they move from Step 4,071 to Step 5,072 and from Step 5,071 to between Step 4 and 5,072 and from other Steps in Salary. Grade 071 to 072. .L Para. 4 of the August 4,1977 Memorandum of Agreement (Union #7) indicates that the I parties agreed parenthetically that the first four steps in each Salary Grade would be com- pleted in a total time period of three years. I conclude, on all the evidence, that they were referring to an employee who entered the position at the minimum level, regardless of the Salary Grade on’entry, who did not evidence “performance .problems”. Para. 5 of the Memorandum indicates that the parties agreed that “the fifth step in each salary grade... applies to an employee with 4 l/2 years or more on the current job”. At that point, the only relevant positions were Rehabilitation Counsellor 2 and 1. I conclude that the par- ties intended, by the phrase “in each salary grade” that a Counsellor could enter at the minimum of Salary Grade 072 and at the end of 4 l/2 years receive the Step 5,072 pay I rate, and likewise, that s/he could enter at the minimum of Salary Grade 071 and at the end of 4 l/2 years receive the Step 5,07i rate. This, in and of itself, suggests that the I . 3 T 48 parties, by their Memorandum and the new SASS, contemplated only that an employee would move from the minimum to the maximum on the same Salary-Grade in 4 l/2 years. In the 1976-77 agreement, the pay rate at Step 5 of each Salary Grade in the SASS was equal to the rate at Step ‘4 of the next Salary Grade. Applicable to the Rehabilitation Counsellors, the rate at Step 5,071 was equal tothe rate at Step 4,072. This structural feature was repeated in the SASS in each subsequent agreement. : Art. 5.03 states that the requirement of consideration for a posted vacancy does not apply to employees whose current job was acquired “as-a consequence of technological or organization change (Article 6) or they occupy an identified progression position above the entry level as outlined in Schedule “B”. At this point in their agreement, the parties refer to a “progression position . . . outlined in Schedule ‘B’ ‘I. The agreement does not directly define a “progression position”, but Schedule B describes an incumbent of a “progression positions” as An employee who moves between the various levels in the occupational groupings listed below... and includes within the “occupational groupings” the positions which are the subject of this grievance: Voc. Rehab. Caseworker 071 to Voc. Rehab. Caseworker 072; Placement Advisor 071 to Placement Advisor 072; Rehab. Counsellor II, 071, to Rehab. Counsellor I, 072, and Social Rehab. Counsellor 071 to Social Rehab. Counsellor 072. Schedule “A”, on the other hand, identifies each of these positions or “occupational groupings” as “Classifications”. I .-. - ., :i I. : -.. ,,:,, The substance of the dispute before this Board is the parties’ intended meaning of the above-noted provisions in their agreement. The. identification of the positions in question under the title “Classifications” in Schedule A does not in and of itself reniove the issue qf the parties’ intended meaning of the terms of their agreement from the consideration of this Board. - . . Art. 5 speaks of returning employees, after unsatisfactory trial periods or transfers outside of the bargaining unit, to his/her former “salary classification” and placing them in a position for which they are qualified without loss of seniority. The evidence did not deal with the parties’ practice regarding whether employees returning to their former “salary classification” are returned to their Salary Grade, or to the precise Step within the Grade which they previously occupied. It appears, however, reasonable to infer that the parties viewed a “salary classification” as different from a position classification. - ; ‘E 49 A review of the relevant provisions of the collective agreement discloses that the parties referred to the positions in question at various points in their agreement as “occupational groupings”, “progression positions” and “classifications”. Their reference in Schedule B to movement !!between the various levels in these occupational groupings” is the identify- ing feature of “progression-positions”. The agreement does not define the term “various levels” usedinSchrule B. It is possible that the parties were referring only to Steps or increments within the same Salary Grade, but they could also have’intended to include .movement from one Salary Grade to another. .- A basic rule of interpretation provides that where the parties have used different terms within their agreement, they meant different things. Thus, if by “movement between the various levels in these occupational groupings” the parties had meant “movement ’ between the various Steps in a Salary Grade in these occupational groupings” or “movement from one increment to another within a Salary Grade in these occupational groupings”, they could have expressed themselves in those terms. The use of different terms “movement between the various levels I’, rather than “Steps” or “increments”, and “in these occupational groupings”, rather than “within a Salary Grade in these occupation- al groupings”, suggests that the parties intended a broader meaning, one which comprised both movement from one Step or increment to another, and also from one Salary Grade or level to another, within the occupational grouping of e.g. Placement Advisor 071 to Placement Advisor 072, etc. (‘- The evidence given enables some conclusions to be drawn regarding the parties’ practice around the movement of employees from Salary Grade 071.to.072 after the creation of the newly structured SASS in the,1976-77 collective agreement. Barring performance problems, an employee who entered the Rehabilitation Counsellor 2 position at the Mini- mum level in Salary Grade-071 received the pay rates/increments at the time intervals .indicated, such that s/he was receiving the Step 5,072 maximum pay ratejno later than Y when s/he completed 4 l/2 years in the position. This was accomplished by certain - procedures applied by. the employer when the incumbent had completed 3 yearsin the position and was eligible for and was given the Step 4increment. At the same time as the incumbent received the Step 4 increment, or shortly thereafter, the employer applied Note 3 below the SASS and adjusted his/her salary “to the next step he would have achieved had he not been promoted, and his future salary progression will thereafter be governed by the time interval for the next higher amount in his new salary grade.” The next step was Step $071. The employee received the Step 5,071 increment, which was equal to _ -,. .- the Step 4; 072 pay rate. The employee was also moved to or placed at Step 4,072. ! These procedures became known as the “double jump” and “promotion”. Barring perfor- mance problems, 18 months, or 1 l/2 years after the “double jump”, which ‘entailed move- ment from Salary Grade 071’to 072, the employee received the Step 5; 072 maximum _._.. _ Pay rate* - L -.. --- -_ The evidence as to the reason Carroll Page was designated 072 before she had been a -- Rehabilitation Counsellor 2 for a full three years was inconclusive. The Job Descriptions dated January 19,1988 (Employer #2) which indicated that 3 years of satisfactory perfor- mance as a Rehabilitation Counsellor 2 at Salary Grade 071 was a prerequisite or “basic requirement” for becoming a Rehabilitation Counsellor 1 is the earliest and’the only written indication that the employer did not reserve the discretion to move Counsellors from 071 to 072 before they had been in the position for three years. Ms. Page was designated 072 in 1986, two years earlier. However, the section titled “Discretionary Considerations” in the Policy & Procedural Manual (Union #12) dated May 31,1978 contemplated “accelerated increases” for “outstanding performance”. Consequently, the evidence is as consistent with the possibility that the employer was recognizing Ms. Page’s “outstanding performance” by moving her to 072 and by oversight failed to give her a concomitam 5% increase, as it is with the possibility that the designation was;“a mistake”. The evidence suggests and I find that prior to January, 1990, the parties had developed a practice of moving Rehabilitation Counsellors 2 from the 071 Salary Grade to the maxi- j mum in the 072 Salary Grade in no longer a period of time than 4 l/2 years, barring performance or merit problems. A further aspect of the parties’ predanuary, 1990 practice was that Counsellors who entered their positions at a pay rate above the minimum moved through the increments in the Salary Grade to which they were initially assigned, be, it 071 or 072, at the time intervals specified in the SASS, barring performance proble-ms. If they reached Step 5, 071 prior, to the completion of 3 years, it would appear from the January 18,1988 Position Description (Employer #2) that after that date, they remained at Step 5,071 until they were in the position for three years, at which point, barring performance problems, they would receive a 5% increase and be considered at between Step 4 and Step 5 in the 072 Salary Grade. The evidence is inconclusive as to the practice regarding movement of such employees from Salary Grade 071 to 072 before three years in the position prior to January 18, 1988. However, the Manual (Union #12) strongly suggests that the - -- _. - . _1 . F F 51 employer reserved She discretion to move Counsellors’to tile 072 Salary Grade earlier, and occasionally exercised that discretion. The introductory note in Schedule A which precedes the SASS indicates that the -- Employer can withhold an increment, notwithstanding the passage of the.time stipulated for each increment, due to performance, provided it gives one month’s hGtice. It indicates _~- that “performance” is the sole criterion for declining to provide the employee the next increment at the time designated on the SASS. Although the evidence did not establisd the year in which the parties intrdduced the words “An employee will rective notice of at least one month if, due to performance, the incremental increase is not to be received” into their agreement, I infer from the evidence as a whole that those words have been in the agreement for some years prior to January, 1990. I conclude that by those words, the parties left the employer the discretion to determine the performance staridard(s) it would . require at each tiine interval, and the right to assess an incumbent’s performance or merit in relation to that standard or standards and expressly reserved the employer the right to decline the “incremental increase” on one month’s notice. I The use of the words “due to perform&ce” implies an element of .“merit”: in the otherwise I time-driven movement through the pay rate Steps or increments. That language and the mandatory language “the Employer shall pay salaries in accordance with this Schedule” in f&t. 18.01 an’d at the beginning of Schedule A reflect the parties’ intention that the employer pay Schedule A employees the rates in the SASS on completion of each time- “p&od, “Step 1 - 6 months”, “Step 2 - Further 6.Months”, “Step 3 - Further 1 Year”, “Step 4 - Further 1 Year” and “Step 5 - Further **18 Months” without exception, barring a performance problem. Schedule A does not define “promotion” .or state that movement from one Salary Grade to the next constitutes a “promotion”. The notes tinder the SASS are generic. Note 3 and ” ** ” indicate the adjustment which is required to the salary of employees who are “promoted”, as opposed to those who work for the requisite periods of time within a Salary Grade or Grades,1 conclude that the p&ties intended those notes to . apply to Art.-5 “promotions” in the sense of successful applications for’posted vacancies of higher paying positions, as well as to the salary adjustments which accompanied “movement between the various levels in the occupational groupings”, i.e. movement from one Salary Grade to another in “progression positions” identified in Schedule B so as to enable the incumbent to earn the Step 5,072 maximum pay rate by the end of 4 l/2 years in the position.’ . - --. -. ._- _- _ _. , ’ .~ 52 Throughout the evidence, the parties used the terms “progression” and “promotion” and “to progress” and “to promote” interchangeably. This is not surprising, because the collective agreement provides no definitions in the context, of these particular positions and this conundrum, and the definitions of these words are quite similar, and connote upward or forward movement or advancement. -. :.- It is difficult to conclude that.~itis a mere coincidence that the Step 4,072 ‘i&rement/pay rate has been the same as the Step 5,071 increment/pay rate on the Schedule A Senior Administrative Salary Scales since the 1976-77 agreement to the 1993 agreement. This feature does not appear in the other Salary Scales. I conclude that that feature of the Scale, along with the characterization of these as “progressive positions” in Art. 5 and the reference to movement “between the various levels” in Schedule B, reflects the parties’ intentions that employees would move through the increments and from Salary Grade 071 to 072 in 4 l/2 years, barring performance problems. I conclude that theimovement from 071 to 072 was seen as a progression, in the sense of forward movement, ‘or advancement, , within a mutually understood and structured period of time, rather than a “promotion”. I conclude, on the evidence, that until January 1,199O the parties interpreted and applied the provisions of the collective agreement with the shared and reasonable expectation that Rehabilitation Counsellors, who were incumbents of “progression positions”, would move through the Steps in the SASS and from Salary Grade 071 to 072 within 4 l/2 years of entering the position, barring performance problems, which were reserved to the employer to identify. As early as 1982 the Administration Procedures Manual (Employer #20) contemplated Rehabilitation Counsellors 2 receiving their “regular incremental adjustment” and “their promotional adjustment” (usually either to Step 5,071 and there- after Step 4,072, or 5% of Step 5,071) after 3 years, and referred to this process as _. “promoted”. Schedule A reserved to the employer the right, “due to performance”, to withhold “incremental increases”. I conclude that the parties shared the intention that “incremental increases” included both Step increases as sell as salary adjustment(s) associated with movement from Salary Grade 071 to 072, and that the employer had the right to give one month’s notice if any pay rate adjustment, including the adjustment(s) associated with movement from Salary Grade 071 to 072, was to be withheld. No evidence was lead as to the circumstances, if any, under which this right was exercised. Nothing, however, necessarily turns on such evidence or the lack of it. Bill 162 received Royal Assent on July 26, 1989. To assist in the effective implementation of the amendments, as of January 1,199O the employer changed the .--_ __ ..’ . c .-.- focus of the functions of former Rehabilitation Counsellors 2 and 1. In this context it assigned the incumbent Rehabilitation Counsellors to three other positions, which were also “identified progression positions” under Art. 5.03 and Schedule B.. The employer viewed the Vocational;Rehabilitation Caseworker, Social Rehabilitation Counsellor and Placement Advisor positions as having been acquired as a consequence oftechnological or organizational change within the meaning of Art. 6 (Employer #34).- Its intention was to introduce an incentive to employees to advance to the Jevel of full delegation of autho&- --. rity at the earliest possible date. It was expected that this incentive would result in imme- diate financial gain to the employees who were able to undertake full authority earlier than some of their colleagues, and would result in more efficient delivery of services to clients. The “new method” was not intended to deviate from the employer’s obligations under the agreement. Aside from moving the affected employees from Salary Grade 071 to 072 when the employer determined they were able to undertake the responsibility associated with full delegation of authority, the employer paid the affected employees the pay rates associated with each time interval and each Step on the SASS. The “new method” had unintended results. Some employees would achieve the Step 5 maximum later than 4 l/2 years. Some would earn less, despite an earlier move from 071 to 072, than they would have earned in the 4 l/2 years from their start date. Others would earn more in that period. The earnings of still others may not have been affected. Several months after implementing the Vocational Rehabilitation Strategy ,and the full delegation of authority criterion for movement of incumbents of these three positions from Salary Grade 071 to 072, the employer acknowledged that its change of their anniversary dates to January 1,1990, was having an “adverse impact” on some of the employees (Employer, #34). The authors of the June 29,199O Memo did not testify. The Memo described the employer’s action as having initiated “a lateral move to another job for which the employee requires limited additional training of less than one month.” In an effort to comply with A@. 6.02, which requires the Employer to “make every reasonable effort to minimize or eliminate adverse effects on employees caused by [the introduction of organizational] changes”, the Employer directed that employees “assigned to the position of Vocational Rehabilitation Caseworker, Social Rehabilitation Counsellor I or Placement-Advisor” would retain their previous anniversary dates. The change in I anniversary date had lengthened the period of time those employees would require to reach the Step 5,072 maximum, and was viewed as an “adverse effect” within the * .S meaning of Art. 6.02. -..- -- _.- I .^ . ,o 54 The other adverse effect on the salary of some of the employees, of which the Union now grieves, arising as a consequence of the timing of the movement of some of the employees from 071 to 072 when they were given full delegation of authority, did not receive full attention until some time later, possibly as late as 1993 (Employer, #8 and #9). The timing of the movement of some, though not all, of the-employees from 071 to 072 had the similar effect of lengthening the period of time it would-take those employees _-- to reach the Step 5;072 maximum. As a result, some of the employees were paid less overall within thelsame period of time than they would have been paid if they had been moved from 071 to 072 at the end of three years in a progression position and 18 months later have started to receive the Step 5,072 maximum, while others were paid more overall within the same period of time than they would have been if they had been moved . from 071 to 072 at the end of three years in a progression position, and.18 months later have started to receive the Step 5,072 maximum. As the delay in achieving the Step 5,072 maximum which resulted from the change in anniversary date was viewed by the employer as an adverse effect, which,the employer adjusted and avoided by rescinding the change in anniversary dates, consistency requires the same conclusion to be drawn with respect to the effect on some of the employees of “tying” of the movement from 071 to 072 to the point of “full delegation of authority”. “Full delegation of authority” and a concomitant pay increase and movement from 071 to 072 can be conferred from several months to several years after commencing in the position. This has the potential to adversely effect a substantial number of employees when the long-range impact on their salaries is considered, however unintended. The adverse effect arises from the amount of time each individual requires, after movement from 071 to 072, to move through the remaining Steps or increments to the Step 5 maximum pay rate. An employee who is moved from 071 to 072 with full delegation of authority within’six months of entering the position (Employer, Example A) would earn more than s/he would have earned if s/he had moved from 071 to 072 on his/her third anniversary and had received the Step 5,072 pay rate at the end of 4 l/2 years in the / position (Employer Example A). However, an employee who is moved or promoted from Step 2,071 to 072 after 1 year and 10 months in the position, will require a total of 5.83 years in the position before becoming entitled to receive the Step 5,072 maximum pay _ rate (Union Example A). An employee who is granted full delegation of authority and- moved or promoted from Step 3,071 to 072 will require a total of 6 years and 4 months before becoming entitled to receive the Step 5,072 maximum (Union Example B). .- - - -. -. ._ -_ _ . . :. - .- \ 1 c - -- ,; 55 Conclusions: Re the Grout Grievance: The language of the collective agreement provides the employer the discretion and the ‘- .- authority to determine when an employee may be granted full delegation of authority. It also requires the employer, in so doing, to ensure that barring performance problems, _ Vocational Rehabilitation Caseworkers, Social Rehabilitation Counsellors ‘and Placement Advisors move between the various levels in their occupational groupings, i.e. between Steps as well as Salary Grades, at the time intervals indicated in the SASSand reach the - Step 5,072 pay rate by the end of 4 l/2 years in the position. In the case of employees who enter the position at the Minimum in the 071 Salary Grade, this has generally been ensured by moving,the employee from Step 4,071 at the end of 3 years (barring performance problems) to the Step 5,071 pay rate and concomitantly moving them to Step 4,072. It also requires the employer to “make every reasonable effort to minimize or eliminate adverse effects on employees caused by [organizational j changes”. I conclude that as a consequence of implementing the Vocational Rehabilitation Strategy and the “full delegation of authority” criterion for movement from Salary Grade 071 to 072, the Employer inadvertently breached Art. 18.01 and Schedule A, and Art. 6.02 of the collective agreement. It inadvertently failed to ensure that Social Rehabilitation Counsellors, Vocational Rehabilitation Caseworkers and Placement Advisors achieved the Step 5,072 maximum at the end of 4 l/2 years, barring performance problems which resulted in the employer giving the employee at least one month’s notice re non-receipt of an increment and/or salary adjustments associated with movement from Salary Grade 071 to 072. In issuing the June 29,199O Memorandum reinstating anniversary dates (Em- ployer #34), the Employer made reasonable (and commendable) efforts to eliminate the adverse effect on employees’ salaries within the meaning of Art. 6.02. An adjustment to the salaries of the Social Rehabilitation Counsellors, Vocational Rehabilitation Casewor- kers and Placement Advisors which were. adversely impacted as a result of the timing of the movement from 071 to 072 would constitute a parallel and consistent effort to eliminate another adverse impact on them. The employer is therefore directed to adjust the salaries of employees adversely affected by the said implementation in accordance with this decision and the Memorandum of Agreement between the parties dated February 27,1995 (Union, #2). _ z; ‘- - _ * -- 56 Conclusions re Mr, Nicholls: No evidence was lead as to the practice of the employer negotiating with the union as to’ the wage rate at which non-bargaining unit employees entering bargaining unit positions will be paid. It is not possible for this Board to conclude, on a bare assertion by counsel, _. that such a practice existed. It is not possible, in these circumstances, to conclude that such a practice did not exist. A Art. 1 recognizes CUPE Local 1750 as the exclusive bargaining agent for’all WCB -- employees “save and except . . . persons excluded by virtue of the provisions of the Crown Employees Collective Bargaining Act”. When the employer hired Mr. Nikholls into the Caseworker position in 1991, he was in an excluded position and fell outside the letter of Art. 1 in terms of entitlement to representation and any possible obligation on the part of the employer flowing from that Article to negotiate an incoming non-bargaining-unit employee’s pay rate with the Union. In the absence of any evidence as to past practice, it is not possible to conclude that Art. 1 obliges the employer to negotiate an incoming non- bargaining-unit employee’s starting pay rate on the SASS. In 1994, prior to re-enter&g the bargaining unit as a Caseworker, Mr. Nicholls was a F.E.L. Adjudicator. The issue of whether that position and others continued to be excluded for the purpose :of Art. 1 was determined on May 13,1996 in CUPE Lot. 1750 (Union) and WCB (unreported) 1029/94. On both occasions in which Mr. Nicholls entered bargaining unit positions, the employer, in good faith, considered Mr. Nicholls an excluded employee by virtue of the provisions of CECBA, R.S.O. 1990, c. C-50. As it is not possible to conclude in the circumstances of this case the presence or absence of a practice of consultation between Management and the Union as to the starting pay rate of employees entering VR Counsellor or Caseworker, Social Rehabilitation Counsellors, and Placement Advisors from non-bargaining-unit positions within and from outside the WCB, it is also not possible to conclude that the starting Salary Grade and Step of such employees is a matter entirely within the discretion of Management. I recommend, in the interest of furthering positive labour relations and improving communication between the parties, and in view of the mistrust that this issue has engendered, that the parties informally engage in such consultations and attempt to agree as to the starting pay rates and Salary Grades of such employees. Conclusions re Ms. Dumas’ Grievance: The evidence raised doubt as to whether Ms. Dumas’ original anniversary .date of May 16, 1988 was applied in determining her pay rate entitlements after January 1,199O. The . evidence did not suggest that she experienced any performance problems.’ She entered her position as a,VR Counsellor on May -16, ‘1988 at the 071 Minimum and- was entitled after 6 months to the Step 1,071 rate. A further 6 months (total 1 year) later she was entitled to the pay rate at Step 2, 071. Twelve months after that, i.e. 18 May, 1990, she was entitled to the rate at Step 3,071. Pursuant to the June 29, 1990 Memorandum (Employer #34) her anniversary date did not change to January 1,199O. One year later, May 17,1991, she was entitled to be paid at the rate at Step 4,071. In order to ensure that she would achieve the Step 5,072 maximum within 4 l/2 years, she was entitled to the “double jump” at that point, i.e. on May 17,199l she was entitled to be paid at Step 5,’ 071 and to be placed at Step 4,072. On or about November 13,1992, i.e. eighteen months later, she was entitled to be paid at the Step 5,072 rate. The foregoing applies, notwithstanding,that the Employer granted her full delegation of authority on March 30, 1990(Employer, #18--“promo”). She is entitled to have her salary adjusted accordingly, and to be compensated for any difference between the amount she should’have received andthe amount she was paid under “the new method”, subject to the Memorandum of Agreement dated February 27,1995 (Union, #2). Conclusion re Ms. Robertson’s Prievance: -, .~ : On the basis of Ms. Robertson’s handwritten grievance and her oral evidence, it appears that her grievance was based on the belief that she was entitled to the “double-jump” when she reached Step 4,071. This was the salary treatment of employees who had commenced in their position at the minimum in the 071 range, and had redeived the Step 1 to 4 increments at the specified time intervals in the SASS over a period of 3 years, in the absence of any performance problems. They receiveda double jump from the Step 4, 071 payrate to the Step 5,071 rate and were advanced or “promoted” to Step 4,072, which has the same payrate as Step 5, 071. Under the pre-1990 system, I conclude, in the absence of clearer evidence that the employer as a matter of general practice moved VR Counsellors from 071 and 072 before they had’completed three years as a VR Counsellor 2, that although Ms. Robertson may have felt she was carrying out the full duties of a VR Caseworker 1 on October 17,1990, she would not have been entitled to move from the 071 Salary Grade to the 072 Grade until she was in her position for three -- .- -- _ _. - ..L. . -... _ -- ‘3 - !i- 58 to have been-entitled to full delegation of authority on April 28, 1992, and, as she was already being paid at Step 5,071, gave her a 5% “promotional increase” in accordance with the note ” *& ” below the SASS, and considered her “promoted” as of that date from Step 5,071 to between Steps 4 and 5,072. If Ms. Robertson is asserting that regardless of the pay rate on entry into>he.subject positions, once an employee reaches Step 4,071, s/he is entitled to the “double jump”, it must be noted that such an interpretation of the SASS and the notes beneath it would “read out” the possibility of movement to 072 from Step 5,071. It is also inconsistent with the practice of a change in Salary Grade on completion of three years in the position, and reaching the 072 maximum ,on completion of 4 l/2 years. If Ms., Robertson. had been “promoted” on October 26,199O from Step 4, 071 after one year in the position, she would have received the Step 5,071 pay rate and have been moved to Step 4,072, and eighteen months later, on April 26, 1992, barring performance problems, would have reached the Step 5,072 maximum. Thus having , started in the position on October 27,1989 at Step 3,071, she would have reached the Step 5,072 maximum on April 26,1992,2 l/2 years later. The evidence did not clearly establish that the employer’s pre-1990 practice was to promote employees in VR Counsellor positions in its discretion, and although this may have occurred in some cases, the evidence did not establish that Ms. Robertson would have been entitled to be moved to Salary Grade 072 under the employer’s pre-1990 practices when she reached Step 4, 071. Ms. Robertson’s grievance must therefore be dismissed. * Condlusion re Recoverv of Overuavments: The issue of the recovery ‘of overpayments was considered in Re Arnnrior (Town) and / I.U.O.E.. Lot 793 (1991), 22 L.A.C. (4th) 80 (Bendel). In that case, the grievor alleged a violation of the collective agreement by the employer’s action in deducting money from his pay to recover an overpayment. The arbitrator concluded that there was no provision in the collective agreement which had been violated, that an arbitrator only has jurisdic- . . tion to consider and apply the Emnlovment Standards Act &where there is an inconsisten- cy between that Act and the collective agreement, and that the grievor’s remedy, if he chose to pursue one, was to be found in another forum. The arbitrator in Re St. Iosenh’s Hosnital, London and London & District Service Workers’Union. Local 220 (1985), 20 L.A.C. (3d) 390 (Kates) took the view that he had jurisdiction to rely on the Act to resolve a conflict between an agreement and employment standard, although the collec- tive agreement was silent on the matter. Where the employer had used an incorrect . ___.z : _^ - - ._. -- ..- _ . years i.e. until October 27,1992. ,The evidence established that the employer viewed her I ‘. . .-c ‘i’ 59 . . ,I I divisor in calculating bi-weekly payments which were slightly.higher than required under ‘the collective agreement, and deducted an overpayment of $102,82 from the grievor’s salary cheque, the grievance was dismissed on the basis that the Emnlovment Standards & does not prohibit the “recapture of an overpayment caused by a clerical error so that nothwithstanding the recapture the affected employee receives his/her full salary for the year-in question”: Re Northern College of Annlied Arts and TechnoloPv and 0.RS.E.U. (1991) 21 L.A.C. (4th) 82 (Burkett). Where the employer voluntarily paid for unpaid breaks for approximately 6 months after the Memorandum of Settlement was signed (in which the parties agreed formerly paid breaks would thereafter be unpaid) and until the collective agreement was signed, and thereafter deducted the overpayments from pay- cheques in amounts of about $25.00 per cheque, on the basis that the signed agreement applied retroactively, the arbitrator specifically directed the employer “to cease from deducting monies from wages owing employees to recover alleged overpayments” for the period of voluntary overpayments and to repay the money so deducted: Re Cancoil Thermal Corn. and U.F.C.W.. Lot 175 (1996), 59 L.A.C. (4th) 213 (Starkman) at p. 219. In that case, the arbitrator concluded that the following provisions of the Emnlovment Standards Act, R.S.O. 1990, c. E.14 prohibiting “deductions from wages except in certain specified circumstances”, determined the matter: 7(l) An employer shall pay to an employee, in cash or by cheque, all wages to which an employee is entitled under 69 0) an employment standard; or a right’ benefit, term’or ,condition of employment under-a contract of employment, oral or written, express or implied, that prevails over an employment standard. . . . (3) All wages due and owing to an employee shall be paid by an employer on the regular pay day of the employee as established by the practice of the employer. * 8. Except as permitted by the regulations, no employer shall claim a set-off against wages, make a claim against wages for liquidated or unliquidated damages or retain, cause to be returned to the employer, or accept, directly or indirectly any wages payable to an employee. P R.R.O. 1990, Regulation 325 provides: .-._ 14(l) Despite section 8 of the Act, an employer may set off against, deduct from, claim or make a claim against or retain or accept the wages of an employee where, _-_ - (a) a statute so provides; . -. -.--- .- ,- - .- :. 09 an order or judgment of a court so requires; or Cc) subject to subsection (2), a written authorization of the employee so permits or directs; Thus; there-appears to be some controversy within the arbitral jurisprudence with respect .-. to whether recovery of overpayments in the context of a collective agreement is prohibited-by the provisions ofthe Emnlovment Standards Act, for the reasons noted above. In any e;ent, as the employer has not made any deductions to recover any overpayment, a determination as to whether the Act applies to prohibit such deduction(s) - is not required. The adverse impact on the salaries of some of the Vocational Rehabilitation Caseworkers, Social Rehabilitation Counsellors and Placement Advisors was the result of inadvertence in the employer’s implementation of the Vocational Rehabilitation Strategy and “full delegation of authority” criterion, and the attachment of that criterion andits timing to movement between Salary Grades 071 and 072. The evidence was that the employer’s reasonable intention in implementing this program was to provide a financial and status ._ incentive to incumbents of those positions to acquire the skills and knowledge necessary 1 to be given full delegation of authority at the earliest possible date. As a result, the beneficial impact on the salaries of some of the incumbents in those occupational groupings was planned and intended; It did not arise as a result of a clerical error. The Union challenged the compliance of the Vocational Rehabilitation Strategy and the “full delegation of authority” criterion for movement between Salary Grades with the requirements of the collective agreement in 1991 (Employer #7). It appears from the correspondence that neither party specified to the other the precise manner in which the Strategy was adversely impacting upon the time certain employees wouldrequire to reach the Step 5,072 maximum until 1993, and the Group Grievance was commenced on June 16, 1993. Thus it took a substantial period of time for the impact of the strategy on salaries, both negative and positive, to become apparent to both parties: During that period and subsequently, some of the employees who were granted “full delegation of authority” earlier than others, and whose salaries were improved as a result, and who -were not “held back” from achieving the Step 5,072 maximum within 4 l/2 years ,- (barring performance problems) quite naturally relied upon the status and,pay rates accorded them, through no fault of their own. It is possible to characterize the recovery of overpayments in this’case as ensuring that the employees receive or “net out” only the amounts to which they were entitled under the terms of the collective agreement as they -. __-.-- -~ _. . .’ . G 61 have been interpreted in this decision. However, to do so would inevitably result in conflict and resentment between some members of the bargaining unit. This is not in the interest of either party. I conclude that in all these circumstances, it would: be unfair to require the employees who were’ lead to believe they were entitled to the change, in Salary _ ._ Grade and pay. rates to return the “overpayments” and any concomitant benefits to the Employer. -_._--_ I I will remain seised with respect to matters arising from the implementation of this decision. _. \ Dated at Toronto, Ontario this 10th day of June, 1997. _. ’ Vice-Chair Appendijr A Collective Agreement Between WCB & CUPE, Lokall750 075 074 073 072 071 070 070 SCH-EDULE “A” SEMOR ADMINWI’RATIVE SAJJARY SCALE mective October 1. 1991 Miliimm 841.25 (928.27) 786.87 (868.27) 735.14 (811.19) 685.91 (756.86) 641.92 (708.32) 603.08 (665.47) 503.15 (555.20) 893.00 (985.38) 836.03 (922.51) 781.67 (862.53) 729.95 (805.45) 680.76 (751.19) 636.73 (702.61) 532.57 (587.67) Furler 918.87 (1013.92) 861.96 (951.14) 807.58 (891.12) 753.23 (831.15) 701.45, (774.00) 657.46 (725.47) 564.28* (622.65) Further 1 Year 965.47 (1065.35) 905.94 (999.66) 848.99 (936.82) 792.06 (874.00) 740.27 (816.85) 693.69 (765.45) i3k32l Further 1014.66 (1119.63) 952.55 (1051.09) 893.00 (985.38) 836:03 (922.51) 781.67 (862.53) 729.95 (805.45) Further l *I8 m 1087.12 (1199.59) 1014166 (1119.63) 952.55 (1051.09) 893.00 (98538) 836.03 (922.51) 781.67 (862.53) (Includes Salary Adjustment for irregular hours under Article 8.09(a)) 1. The anniversary date is based on the date the employee commenced on the current job. This may be either the date of hire, or the date of a subsequent transfer. 2. The time periods set out at the top of the columns are reflections of the armiveisary date set out in (1). Notwithstanding paragraph one, where an employee ‘is transferred to a new position in the same salary grade, the anniversary date Ml1 not be changed. 3. An employee who is promoted will have his salary adjusted to the next step he would have achieved had he not been promoted, and his, future salary progression will thereafter be-governed by ‘the tune interval for the next higher amount in his new salary grade. In the event that the employee is already at the maximum for that Salary Grade, he will have his salary adjusted to one time interval less on the higher salary grade. This is subject to the employee being paid a salary rate no less than the minimum rate for the new salary grade. Page 76 ‘Collective Agreement Between WCB & CIh’E, Local 1750 *Thereafter progress through the top line of Salary Grade 070. **An employee promoted from this step will receive a 5% salary adjustment if the promotion is only 1 Salary Grade. If the promotion is more than one Salary . Grade, the employee will be paid one Salary Grade higher in the 18 month step. . - . .s SENIOR ADMINISTRATWE SALARY SCALE salarv Grade 070 Audio/Visual Technician Audio/Visual Technical Assistant Auditor Auditor Collections Claims Are@ Counsellor Claims Counsellor Claims Counsellor, Toronto Claims Info. Centre Classification Investigator Control Specialist Ethnic Services Specialist / , Experience Rating Analyst Field Auditor General Counsellor General Ledger Control Specialist Health Care Benefits Counselor Hospital Records Courier Interpreter. Translator Investment Control Specialist . Medical Statistics Coder Analyst Proof Reader Proof Reader/Editor Psychometrist 3 Regional Information Accounts Maintenance Officer Research Assistant Occupational Disease Senior Accident Cost Specialist Senior Revenue Services Representative Ethnic Services Specialist Claims . ’ Page 77 “” . .2-h---