HomeMy WebLinkAbout1989-1522.Gallagher.90-10-05 ONTARIO EMPLOY~'S DE LA COURONNE
CROWN EMPLOYEES DE L 'ONTA RIO
GRIEVANCE C.OMM!SSlON DE
SE _T'~'_LEMENTREGLEMENT
BOARD DES GRIEFS
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1522/89
IN THE MATTER OF AN &RBITRATION
Under
THE CROWN EHPLOYEEB COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
OPSEU (Gallagher)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Government Services)
Employer
BEFORE: M. Watters Vice-Chairperson E. Seymour Member
M. O'Toole Member
FOR THE K. Whitaker
GRIEVOR Counsel
Ryder, Whitaker, Wright &
Chapman
Barristers & Solicitors
FOR THE D. Francis
EMPLOYER Counsel
Winkler, Filion & Wakely
Barristers & Solicitors
HE/%RING '~ July 27, 1990
This proceeding arises from the grievance of Mr. Vic
O
Gallagher dated October 11, 1989. He complained therein %hat the
Employer had failed to comply with the terms of settlement of an
earlier classification grievance. The Board was asked to issue
an order requiring the Employer to comply with such ~erms. The
parties agreed that the mat%er was properly before us as it
related to enforcement, rather than interpretation, of the
settlement;
The parties agreed that the dispute could be resolved on the
following facts without the need for viva voce evidence:
(i) The grievor was employed at Centralia College in
London, Ontario as a Maintenance Superintendent. He was -
classified as a Maintenance Superintendent 2. In October, 1988,
he grieved this classification. It was the grievor's belief that
he was performing the work of a Property Manager and should,
therefore, have been classified as an Occupational Skills and
Trades t5 (CST-15). The classification sought applied to
positions outside of the bargaining unit.
(ii) The classification grievance was settled on May 23,
~989, that being the date of hearing. Minutes of Settlement were
then executed. Paragraph numbers two ~2) and six (6) thereof
read:
2, The Employer shall assign the grievor at the
Occupational Skitls and Trades 15 (CST-15) level
and adjust his rate of pay accordingly on an
acting basis effective today's date until the
sooner of the expiry of one (1) year or the
position of Property Manager (Zone 'O' Centralia)
1
is filled.
6. The grievor shall be paid a sum equivalent to the
difference in pay between his present
classification and the OST~15 classification for
the period from October 8, 1988 to May 22, 1989.
(iii) Prior to the grievance, the grievor had a basic gross
wage of $658.23 per week. His position, which was within the
bargaining unit, had a three (3) step salary grid.
(iv) On September 14, 1989, the Employer issued a Payment
Statement'which disclosed that the new basic wage rate would be
at $691.12 per week. Retroactivity was calculated on thi.s basis.
The new rate represented a five percent (5%) increase over that
previously earned as a Maintenance Superintendent.
.(v) The OST-15 salary'schedule is not subject to a wage
grid. It provides for a minimum and maximum weekly salary of
.$609.69 and $713.9? respectively. As noted, the classification
agreed to in the settlement fell outside of the bargaining unit.
Normally, salary increases for non bargaining-unit employees
o6cupying a position within that classification-would be
determined by recourse to the Employer's Manual of .
Administration. More specifically, salary increases would be
dependent on merit and-could be pegged at any point between the
'minimum and maximum levels. The Manual indicates that'"where a
manager appoints an employee to a position in an acting capacity,
the manager should treat the transaction as a.promotion ..... ".
It states further that:
"When an employee is promoted, the emDloyee should
receive a salary increase commensurate with the
significance of the promotqon. A promotional
2
f
increase should normally range from 5% up to a
1.imit of 10% of salary, but Tn every case it must
be sufficient to bring the employee to the minimum
rate of the new salary range..
In establishing the salary for this grievor, the Employer
utilized the approach that would have been taken in respect of
the promotion of a non bargaining unit employee.
(vi) Had evidence been presented, the grievor would have
testified that in April, 1989 he asked Ms. A. Sutherland, a
management employee, for information concerning the OST-~5 salary
range. He was given a class salary schedule which provid.ed the
minimum and maximum salaries previously cited. The grievor then
enquired as to what were the "in-between" rates. His
recollection was that she replied, "there are no in-between-
rates". While counsel for the Employer could not be certain as
to whether this specific response was given, he stated that he
was prepared to argue the case as if the Union's account of same
was accurate.
(vii) On the day that the grievance,was settled, the parties
did not discuss the specific rate that would be paid pursuant to
paragraphs two (2) and six (6) of the Minutes of Settlement. In
monetary terms, it was asserted by the Union that the grievor
should have received a 9ross weekly wage of $712.97 which, as
stated above, was the ~aximum salary for the position in which he
had been placed on an acting basis. The Employer contended that
the $691.13 was appropriate in all of the circumstances. The
issue dividing the parties, simply put, was whether the Employer
3
had properly calculated the salary'that would be paid while the
9rievor acted within the OST-15 classification.
The'relevant provisions of the collective agreement read:
ARTICLE 6 - TEMPORARY ASSIGNMENTS
6.1.1 Where an employee is assigned temporarily
to perform the duties of a position in a
classification with a higher salary maximum for a
period in excess of five (5) consecutive working
days, he shall be paid acting pay from the day he
commenced to perform the duties of the higher
classification in accordance with the next higher
rate in the higher classification, provided that
where such a change results in an increase of less
than three percent (3%), he shall receive the next
higher salary rate again.
6.5 Where an employee is temporarily ass'igned to
perform the duties and responsibilities of a
position not covered Dy this Collective Agree-
ment, he shall retain his rights and obligations
under the Collective Agreement.
Zt was the position of the Union that the $713.97 weekly
salary should be treated as the "next higher rate in the higher
classification" for purposes of article 6.1.1. In this regard,
counsel .argued the collective agreement contemplated that
bargaining unit employees would progress through a grid with
distinct salary steps. Reference was made to articles 5.1.2,
8.1.1, 24,14.5 and 24.14.6 which envisage distinct'Pates within
salary grid for specific positions. He submitted that employees
wi.thin the bargaining unit had the right to progress in that
fashion and that this right was p¢eserved in respect of acting
positions outside of the unit by the language of article 6.5. We
were therefore urged to consider the maximum rate for the 0ST-15
position as the next rate for this' §rievor. As noted earlier,
t
his weekly salary as a Maintenance Superintendent exceeded the
minimum of the 0ST-15 range. From the pers0ective of the Union,
it was irrelevant that ~ts suggested approach would lead to
dissimilar treatment of bargaining unit and non-bargaining unit
employees. We were asked to find that this distinct treatment
was consistent with the intent of the collective agreement. In
summary, it was submitted that the Employer had improperly
a~plied article 6.1.1. Alternately, counsel argued that the
doctrine of estoppel was applicable to the facts of this case.
He characterized Ms. Sutherland's statement as a representation
on which the grievor had relied to his detriment. Thereafter,
the grievor believed there were only two rates for the higher
classified position. It was claimed that the element of '
detrimental reliance was satisfied by the grievor's withdrawal of
his grievance on the belief he would be paid the maximum 0ST-15
rate. For all of these reasons, the Union asserted that the
Employer had contravened the Minutes of Settlement when it
elected to pay the five percent (5%) salary increase for the
period in which the grievor served as a Property Manager.
Zn response, counsel for the Employer argued that article
6.1.1 did not have the effect suggested by the Union. He
emphasized ~he differences in salary administration for positions
inside and outside of the bargaining unit. With respect to the
former, there are a number of distinct salary steps wi%bin a
salary grid, Employees progress through same by way of annual or
semi-annual increments. 'With respect to the latter, employees
advance within the minimum and maximum limits dependent upon
merit. Counsel advised that there are no% .dist'inct steps between
these extremes and that salary could be pegged at any point
within the range. In this sense, there would be no "next higher
rate" which could be identified. He therefore argued that there
was some incongruity between the language found in article 6.1.1
and the salary treatment of employees promoted to positions
outside of the bargaining unit on an acting basis. It was
counsel's further submission that such article conSemplated a
minimum increase of three percent (3%). He emphasized that Es
the increase given in this instance exceeded that requirement,
the Employer could not be accused of contravening the terms of
settlement. Counsel also submitted that the preconditions for
the application of the doctrine of estoppel had not been
established. He stressed that Hs. Sutherland had simply informed
the'grievor that there were no "in-between" steps in the salary
range for the position in question. .She did not, in counsel's
submission, state that he would receive the maximum rate if he
was reclassified as a consequence of his grievance, tt was
argued that there was no effective representation for purposes of
the doctrine of estoppel. T~e Board was asked to find that the
Minutes of Settlement had been properly implemented and to ,
therefore, dismiss the'grievance. We were referred to the award
in OPSEU (Union GrievanceS, 1006/85 '(Brandt) in support of the
Employer's position.
6
The Board ]s satisfied that article 6.1.1 is applicable to a
temporary assignment outside of the bargaining unit as occurred
in this instance. This result flows naturally from a reading of
article 6.5 which preserves collective agreement rights "where an
employee is temporarily assigned to perform the duties and
responsibilities of a position not covered by this Collective
Agreement". In our judgment, this language is wide enough
encompass the method of salary calculation in respect of a
temporary assignment to a position in a. classification with a
higher maximum salary as provided for in article 6.1.1. However,
the Board accepts the submission of counsel for the Employer that
there is some incongruity between the language contained
article 6.1.1 and the salary administration of positions falling
outside of the bargaining unit. More specifically, the salary
schedules for such positions do not have a distinct series of
predetermined steDs which are automatically reached on an annual
or semi-annual basis. Instead, salary increases are variable in
nature and are determined on the basis of merit. Ultimately, the
increase may fall anywhere between the extremes of the range.
There is consequently no "next higher rate" which can be
identified as the rate to which the employee is automatically
entitled. The Board has therefore not been persuaded that the
language of article 6,1.1 supports this grievor's claim to the
maximum salary in the 0ST-15 'range. Simply put, we do not
consider that salary %o be %he equivalent o{ %he "next higher
rate". Further, we are not satisfied that the provisions of the
collective agreement cited by the Union require us to treat the
maximum rate as the next higher rate for this grievor. We think
that much clearer language would be required .to 3ustify that
result. In passing, we note that an acceptance of the Union's
position might serve to discourage acting appointments in
situations where the employees current rate exceeds the.minimum
of the range for the job outside of the bargaining unit. In that
instance, 'such position could dictate the payment of the maximum
rate. The.Board agrees that article 6.t.1 compels an increase of
not less than three percent (3%) in respect of the type of
assignment which occurred here. As the Employer elected to grant
an increase in excess of this threshold amount, the article h~s
been complied with.
The Board is unable to find that the doctrine of estoppel is
applicable to this dispute. Ms. Sutherland simply advised the
grievor, that there were no "in-between steps" on the OST-15
salary schedule. As indicated above, this was an accurate
statement of fact, Ms. Sutherland did not state that .the grievor
would receive the maximum salary if he was successful in his
grievance. Zn our judgment, this exchange did not constitute a
representati'on which would allow us to invoke the doctrine of
estoppel,. Additionally, there is no evidence to suggest that Ms.
Sutherland was aware of the grievor's mistaken belief that he
would receive the maximum rate'if reclassified, The case is i
8
therefore distinguishable from those situations where an estoppel
has been found to exist where one party has concluded an
agreement knowing that the other side held a mistaken belief on a
material point. In summary, the Board has not been satisfied
that the requisite elements of estoppel have been demonstrated.
For all of the above reasons, it is the judgment of %he
Board that the Minutes of Settlement dated May 23, 1989 have been
complied with. The grievance is therefore dismissed.
Dated at Windsor, Ontario this 5th day o¢ October ,1990.
M,V, Watters, Vice-Chairperson
E. Seymour, Member
M. O'Toole, Member