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HomeMy WebLinkAbout1989-0488.Tsangarias, Young-Yusskiw.97-01-16: ONTARIO EMPLOYES DE LA C. OURONNE " ~' C:ROWN EMPLOYEES DE L*ONTARK) GRIEVANCE COMMISSION DE SErFLEMENT RI GLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON MsG 1Z8 TELEPHONEIT~I.~.PHONE : ~ (418) 325-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M,SG 1Z8 FAC$1MILE/7'~'I..~C, OPIE : (410) 320-13~ GSB # 488/89, 490/89, 1937/89 OPSEU # 89C427, 89C430, 90A980 IN THE MATTER OF I%N ~RBITR~TION Un,er THE CROWN EMPLOYEEB COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BO~%RD B2TWEEN OPSEU (Tsangarias/Young-¥uskiw/Ferris) Grlevor - an~ - The Crown in Right of Ontario (Ministry of the Solicitor General & Correctional Services) Employer BEFORE W. Kaplan Vice-Chairperson FOR THE G. Leeb GRIEVOR Grievance Officer Ontario Public Service Employees Union FOR THE P. Toop EMPLOYER Policy Advisor Employee Relations Board Management Board Secretariat HEARING January 11, 1997 Introduction On April 7, 1993, the Grievance Settlement Board granted a Berry Order in this case. A new classification of Head Cook was approved by the Civil Service Commission effective December 9, 1992. As a result of an expedited mediation/arbitration process, an order/award providing for a 15% increase in salary rates was issued with an implementation date of May 18 or 19, 1995. The matter of retroactivity was addressed in a Memorandum of Settlement: The Employer agrees to compensate each grievor with full retroactivity (less required deductions) twenty (20) days prior to the filing of the grievance, plus interest in accordance with the Hallowell House Formula. it is understood the Employer will calculate the amount of interest without prejudice to the rights of the parties to further litigate the calculation of interest in this matter. As the foregoing makes clear, the parties anticipated that there may be difficulties in applying Hallowetl House and, in fact, such difficulties arose necessitating a hearing in Toronto. Union Position In brief, the union takes the position that the application of the Hallowell House formula is matter of fact and, moreover, that the issue in this case is governed by an earlier GSB award: Massey 188/88 (Keller). That case, which need not be discussed at any length, concerned a dispute almost identical to the one now before the Board, and in that case, Vice-Chair Keller set out the manner in which the Hallowell House formula is to be applied. In this case, the union took the position that not only was the Massey award governing, given Blake et al 1267/87 (Shime), but that the Hallowell House decision, which the parties themselves had agreed would be applied in this case, set out a very specific formuta for the calculation of interest, and there was no discretion, given the purpose for which interest was paid, namely to make a grievor whole, in the application of that formula. The union urged a declaration to that effect, providing for the payment of interest from twenty days prior to the date upon which the grievances were filed to the implementation date of May 18 or 19, 1995, and asked me to remain seized with respect to the implementation of this award. Employer Argument In the employer's submission, ail that the parties agreed to in their Memorandum of Settlement set out above was to calculate interest in accordance with the principles of Haltowell House. Accordingly, a return to first principles, rather than a rigid application of formula, was what was in order. In applying those principles it was important, counsel argued, to establish an appropriate benchmark. And that-benchmark, counsel asserted, was what would have happened in the case of a voluntary reclassification. In such a case, the reclassification would have taken anywhere from several months to a year, and when it was finally completed and implemented, incumbents of reclassified positions would not receive any interest on any retroactive payments. Given this fact, which was submitted in an agreed statement of facts, the employer took the position that it established the governing benchmark for any determination of what should be done to ultimately make a grievor whole. And applying this benchmark to the instant case, the employer argued that its method of calculation of interest, which, among other things, did not provide for any interest payments after reclassification was approved by the Civil Service Commission until the implementation date, should be preferred. A number of cases were cited in support of the principle that while the purpose of interest is to make a grievor whole, that purpose can be achieved with a "rough and ready" catculation, and it was also one in which discretion could, and in appropriate cases, should be exercised. There was an additional reason supporting the application of broad principles to the calculation of interest, and counsel referred to some 1992 correspondence between the parties, also introduced into evidence, which indicates some agreement between them on the caiculation of interest in Berry Order cases. This evidence further supported the employer's position that it was broad principles that mattered, not rigid adherence to specific formulas. Counsel urged me to find for the employer, and for the method of interest calculation it proposed. Decision Having carefully considered the submissions of the parties, I am of the view that the union position must prevail. I reach this decision for a number of reasons. First of all, the .Massey decision, arising in circumstances virtually identical to the instant case, is governing. The matter of the calculation of interest, and the application of the Haltowell House formula, has proceeded to a hearing before the Board, and the Board has issued a decision with respect to it. While some doubt has been periodically expressed over the years about the extent and authority of Blak,~ et at, in this case, I can only conclude that the decision in Ma,~ey is correct and is properly applied. Indeed, even absent the Massey case, I would have reached exactly the same decision in this case for the very same reasons advanced by Vice-Chair Keller. In addition, it is worth noting that while the parties in their Memorandum of Settlement set out above anticipated that this issue would be litigated, what they agreed to was the application of a formula, not a set of principles. And when the Hallowell HQ~J~e decision is reviewed, it clearly sets out a formula, aibeit one grounded in the principle that a grievor should be made whole. Massey then simply and in a straightforward manner indicates how that formula should be applied. The onty way that a g.rievor can be made whole is through the application of the formula and this, it seems to me, explains the widespread acceptance in the labour relations community of HaJJowelt House when it comes time to catculate interest. A few other points should be addressed. I cannot find, as employer counsel urged me to do, that no interest should flow for some period of time given that if the reclassification had been voluntary, it would have taken some time, and no interest woutd have been given. Voluntary reclassifications have nothing to do with this case. In this case, two grievors grieved their classification. They said that their classification was incorrect and they asserted that they were entitled by collective agreement and statute to a correct classification. While there is no bad faith or wrongdoing on the part of the employer, there was a finding that the grievors were improperly classified. They were entitled to a proper classification and to payment reflecting a proper classification. They were deprived of that payment while the employer had, for some significant period of time, the benefit of their services at an improper and lower rate. Had the grievors been properly ciassified, as they were entitled to, they would have been properly paid. They were not properly classified, and they did not receive their full satary for the work they performed. The only way that they can be made whole is through the retroactive payment of interest from twenty days prior to the date that their grievances were filed to the implementation date. The CSC date, with respect, has nothing to do with this entitlement. While the ordering of interest involves the exercise of an equitable discretion, it should also be pointed out that in this case it was the parties themselves who agreed in their Memorandum of Settlement that the grievors should receive interest calculated according to the Hallowell House formula. This case, very simply, has nothing to do with voluntary classifications. It has to do with the assertion and vindication of collective agreement and statutory rights. Moreover, the fact that various principles set out in some of the cases relied on by the employer indicate that interest calculations can be "rough and ready" and that discretion can be exercised in awarding interest, these cases, once again, have nothing to do with this one. The parties agreed that interest would be paid, and they agreed on a specific formula. While there was some limited evidence about a much earlier agreement between the parties about how Hallowell Hous~ should be applied, that evidence, limited as it was, also indicates that any such agreement was short-lived. Accordingly, and for the foregoing reasons, I find that the interest owing should be calculated in accoCdance with the formula set out in Hallow~l[ House as already applied by this Board in Massey p. 7ff. 7 I remain seized with respect to the implementation of this award. DATED at Toronto this 16 tt, day of January 1997. William Kaptan Vice-Chairperson