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HomeMy WebLinkAbout1988-0112.Mills.90-01-02 ONTARIO EMPI. OYLP'.~ O~ I.,A COURONNE CROWN ~MPL OYEE$ ~ L 'ONTARIO ....GRIEVANCE C,OMMISSION DE S~FTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, TORONTO, ONTARIO. MSG 1Z8- SUITE 2100 TELEPHONE/T~L~PNONE 180, RUE DUNDAS OUEST. TORONTO, (ONTARIO) M5G 1Z8 * 8UREAU 2tO0 {4t6)598-0688 112/88 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE 'BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Betwee~ OPSEU (Mills) Grievor - a~ - The Crown in Right of Ontario (Ministry of Transportation) Employer Before: W. Low Vice-Chairperson E. Seymour Member F. Collict Member For the. Grievor; P. Chapman Counsel Ryder, Whitaker, Wright and Chapman Barristers & Solicitors Pot the Employer: C. Slater Senior Counsel Human Resources Secretariat ~1 , Hearing: November 1, 1989 The Grievor is employed by the Ministry of Transportation as an Equipment Operator 2. In 1985, the Grievor was injured in an automobile accident'during the course of his work and sustained back injuries. As a result he was unable to work at his usual position for a period of time. Zarly in 1987, the Grievor was placed first in a six week work station and then, commencing May 1, 1987, on rehabilitative employment as a Traffic Patroller 2, The Grievor's period of rehabilitative employment was to run from May I to September 1, 1987, but was extended to February 26, 1988. The two grievances before the Board today arise out of the Grievor's rehabilitative employment as a Traffic Patroller 2. Both grievances are dated February 18, 1988. They are: 1. That management has not been following past practice of allocating overtime; 2. That the Grievor should be paid salary at the rate of a Traffic Patroller 2 commencing May 1, ~987. With respect to the over, imm grievance, the salient facts are not in dispute. It was acknowledged by the Employer .::.that no overtime assignments were allocated to the Grievor ...... ~'" :~- during his rehabilitative employment as a Traffic Patroller 2. It is acknowledged that as of November 12, 1987, there was a system of rotation put in place for overtime as is evidenced in Exhibit 3, a memorandum from P.C. Ginn, the District Maintenance Engineer, to all patrol and service crew s~pervisors. The Grievor was not put 'on the list as he was on rehabilitative employment and was not a regular traffic patroller. : By way of preliminary objection, the Employer argues that the Board has no jurisdiction to adjudicate a claim that the Grievor has not been assigned overtime. The Employer relies on s. 18 and s. 19 of the Crowd Fmployees Collective Dar~ain~na Act. S. 18 of the Act reserves to the Employer the exclusive right to manage, including the right to determine overtime. Article 13 of the collective Agreement deals with compensation for overtime, but does not confer upon any employee a right to overtime assignments, nor does it limit the discretion of the Employer in making overtime assignments. The jurisdiction of the Board is conferred by s. 19 of the Act. The Board's jurisdiction is to decade differences between the par~ies arising from the interpretation, application, administration or alleged contravention of the Agreement, including any questions as to whether a matter is arbitrable. The Employer's position is that as there is no right overtime assignments contained in the Collective Agreement, $ and as the grievance does not fall within one of the other matters which are arbitrable pursuant to s. lS(2) of the Act, the Board has no jurisdiction to entertain the grievance. The Union argues: (a) That the Employer is estopped by its own conduct from relyimg on s. 18 of the Act in that by establishing a rotation list By its fettered its own discretion in the management of overtime as$ignments~ and (b) this Board should aDply the ~uma~ RiGhts C~de (and I take it inferentially, the Remedies contained therein)'to the Employer's exercise Of its management rights derived from s. 18(1) of the Act. It is alleged by the Union and is not challenged by the Employer that the reason the Grievor was ~ot assigned overtime was that he had been injured and was, at the material time, on rehabilitative em.Dlo.vment. I find that ~he grievance as to overtime ~s not arb£trable by this Board. There is no provision in the Collective Agreement entitling the Grievor to overtime, nor is there a provision requirin~ that the Employer exercise its discretion in any 9articular manner in =he assignment of over~ime. There is no question of interpreting, applying,' administering or determining any alleged contravention of the 4 Agreement. The allocation of overtime falls within the management rights as set out by s. 18 of the Act and is not limited by the bargain made between the parties. Counsel has referred us to the decision of Arbitrator Kirkwood in the case of McCullough (G.S.B. #159§/86, 1601/86). In that case,, the employer established a system for scheduling overtime whereby employees in~icated their availability on a roster. The grievor in that case indicated his availability in accordance with the employer's directions but was passed over on days when he indicated his availability in favour of employees who had already done overtime that month whereas the grievor had not. A preliminary objection as to jurisdiction was made by the employer in that case and the Board sustained the objection following ~alada¥ (G.S.B.'94/78) (K.P. Swan), Re MuniciDalitv of ~etropolitan Toronto v. Toronto Civic EmPloYees' Union. Local 43. et a~ (1975), 10 O.R. (2d), 36, and Re ~etroDolitan' Toronto ~oard of Commissioners of Police v. Metropolitan Toron%o Police Association. et al, (1981), 33 O.R.(2d), 476. It was urged by the Union that the emDloyer's own conduct could set up an estoppel $o as to prevent the employer from relying upon its rights as conferred by s. 18 of the Act. I have great difficulty with this argument. As was stated by Arbitrator Knopf in Carter. et a~ (G.S.B. 2291/86; 2292/86), for the doctrine of estoppel'to apply, there must be a detrimental reliance by the Union as a party to the contract, 5 and not merely by an individual employee. There was no evidence before us, nor indeed any suggestion, that either the Union or the grievor had relied upon the action of the employer to its or his detriment. In the absence of a detrimental reliance, there is no estoppel. I am not persuaded that there is anything to distinguish the case before us from the situation in McCullough. Counsel for the Union has also urged that the Employer has violated the HumaD Rights gpde in discriminating against the Grievor on the basis of disability and that this Board has Jurisdiction to arbitrate the grievance by reason thereof. I cannot accede to this argument. The Grievance Settlement Board is entirely a creature of statute and must find jurisdiction within the empowering legislation. There is nothing in the Act which confers upon this Board the power to adjudicate on or to apply or to administer the Human Rights Code or any other statute or law of general application outside the context of the exercise of that jurisdiction which the Act has conferred upon the Board. As the matter is not arbitrable by ~his Board, the ~uestion of the application of the ~uman ~ahts Code does not arise. In this, I am in agreement with the decision of the majority in the case of Aubin (G.S.B. 1044/85) (J. Gandz). The second grievance is a claim for the difference in salary between the rate of a Traffic Patroller 2 and the lower rate of an Equipment Operator 2. The Grie¥or's grievance was filed February 18, 1988. Re claims retroactive 6 palrment commencing May 1, 1987. In this proceeding the only issue is as to the period May 1, 1987, to September 1, 19S?, payment for the subsequent period having been satisfactorily disposed of at stage 2 of the grievance procedure. Again, the facts are largely undisputed. During the entire period that the Grievor was on rehabilitative employment, he was paid at the rate of an Equipment Operator 2, which was his classification at the time he suffered his accident. The evidence we received from Mr. Mills and from George Thibeault, the Human Resources Officer, was consistent in that both testified that at the commencement of the rehabilitation employment, the Grievor was told that he would be paid at the rate of an Zquipment Operator 2. While Mr. Thibeault had no recall of such conversations, Mr. Mills testified that "a couple of months in" he became concerned and wondered why he was getting a lower wage than the regular Traffic Patroller 2s, and asked Mr. Thibeault about the wage difference. Mr. Mills testified that he raised the issue again with Mr. Thibeault "a few months after that". The response from Mr. Thibeault on both occasions was that this was a rehabilitative program and that as long as Mr. Mills remained on it, he would be paid at the rate of an Equipment Operator 2. There was evidence from both that there was mention by Mr. Thibeault of a third party claim against the other party involved in the automobile accident. Mr. Mills recalls that the words used were probably "any losses will be ? covered by the third party liability". This discussion of the third party liability assumes a role of importance as it is the foundation of the Grievor's-position that the Employer is estopped from relying on the "20 day rule". The Employer raised as a preliminary point of law the "20 day rule" which, it was urged, precludes recovery for any period beyond the 20 days prior to the date of t~e filing of the grievance. As the Grievor was in fact paid at the higher rate for the entire period from September 1, 1987, to February 26, 1988, a finding in favour of the Employer.on this point will decide the entire matter. ~nsofar as there has been a breach of the Collective Agreement by the Employer, the breach iS a continuing one. With respect to such continuing breaches, the right to retroactive remedy is limited to a period 20 days prior to the filing of the grievance= v. Article 27 of the Collective Agreement, Mcgoll (G.S.B. 0092/86~ 0229/86) (Delisle), Smith (237/81) (Roberts), O.P.S.~.U. and t~e Mi~istrv of the Attorney Genera~ (71/76) (Beatty). The 20 day rule will.not be applied, however, where it would be inequitable to do so. In Hooper (47/77) (Swan), the Ministry took action in response to the grievor's complaint which could have the effect of remedying the complaint= in Re Cut, ow an~ N~ (635/84) (Samuels), the grievors' supervisors actively tried to rectify the subject of the complaint by attempting to achieve a reclassification; in Canning (55S/84) (Samuels), the supervisors told the grievors that they had already been reclassified. In each instance, the circumstances were such that the employer or representatives had led the grievor or grievors by word or deed to believe that the parties were essentially ad ide~ and that the employer was seeking to remedy the complaint in the grievors' favour. Is there such a circumstance in the grievance before us such as to make it inequitable for the 20 day rule to apply? In my view, there is not. Mr. Mills' evidence was clear that on all of the occasions he raised the issue of his pay rate with Mr. Thibeault, Mr. Thibeault's reply was that he was to be paid at the rate of an Equipment Operator 2 as long as he was on rehabilitative employment. In contrast to those instances where the employer has by action or representation led the grievor to believe that the employer had or was in the process of resiling from its position, in the instant circumstances the Employer steadfastly maintained its position from beginning to end. It was never suggested to the Grievor that the Employer had any intention of paying at the rate of Traffic Patroller 2, and in the circumstances I 9 cannot fin~ ~at it woul~ be inevitable not to ~epa~ from the 20 day ~le. In the result, this grievance is dismissed. DATED at Toronto, ~h~s 2nd day of January~ 1990. F. COl~~ Member at£ached) '' ~. SEYMOUR Member ADDENDUM While I have concurred with this award, I do have some difficulty with the manner in which Mr. Mills was treated with respect to overtime. I agree that the Board has no jurisdiction with repect to the manner in which overtime is assigned. Nevertheless, it is important to note that the employer issued the following memo dated 11/12/87 to all Service Crew, over the signa- ture of P.C. Ginn, District Maintenance Engineer. EXHIBIT # 3 "RE: Rotational Assiqnment of Overtime Some concern has been expressed that staff are not being treated equitably in the assignment of overtime. Effective immediately, each work unit which normally assigns overtime will establish a list of qualified employees through which offers of overtime can be rotated. The offer of overtime should be recorded and, if the employee is unavailable, this should also be noted. This should ensure that all are given an equal opportunity for overtime. Please post this notice." It is clear from this memo that there are no specific exclusions to the overtime assignments and, in light of this, it is quite understandable why Mr. Mills would feel he was entitled to have an opportunity t6 share overtime assignments on an equitable basis. · Edward E. Seymour ES:cmac opeiu 343