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HomeMy WebLinkAbout1989-1888.Janssen et al.92-09-14 ONTARIO. EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L~ONTAR~O GRIEVANCE C.OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS ;$0, RUE OUN~A$ OUEST. ~UREAU 2100, TORONTO (ONTARIO]. 1888/89, 1905/89, [938/89, 1940/89, 1986/89, 74/90, 80/90, 203/90, 227/90, 266/90, 278/90, 282/90, 283/90, 284/90, 285/90, 286/90, 287/90, 288/90, 289/90, 309/90, 310/90, 311/90, 312/90, 313/90, 314/90, 315/90, 316/90, 325/90, 326/90, 327/90, 342/90, 343/90, 387/90, 390/90, 405/90, 406/90, 461/90, 462/90, 463/90, 464/90, 465/90, 466/90, 467/90, 468/90, 516/90, 578/90,. 956/90~ ~57/90, 1189/90, 1223/90, 1333/90, 56/91 (MCSS) 1904/89, 1945/89, 1964/89, 2017/89, 132/90, 178/90, 180/90, 189/90, 261/90, 268/90, 269/90, 270/90, 271/90, 272/90, 290/90, 292/90, 293/90, 317/90, 318/90, 319/90, 320/90, 321/90, 322/90, 323/90, 324/90, 350/90, 388/90, 389/90, 391/90, 393/90, 394/90, 395/90, 396/90, 397/90, 398/90, 399/90, 400/90, 401/90, 402/90, 403/90, 404/90, 407/90, 503/90, 510/90, 517/90,'522/90, 523/90, 544/90, 545/90, 546/90, 547/90, 548/90, 649/90, 802/90, 827/90, 851/90, 864/90, 888/90, 913/90, 914/90, 915/90, '916/90, 917/90, 1012/90, 1013/90, 1014/90, 1015/90, 1016/90, 1017/90, 1018/90, 1019/90, 1020/90, 1023/90, 1024/90, 1025/90, 1039/90, 1057/90, 1174/90, 1177/90, 1361/90, 2144/90, 1136/91, 2616/91, 2903/91, 401/92 (MCS) IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE'BARGAINING ACT Before THE GRIEVANCE SETTLEME~T'BOARD BETWEEN OPSEU (Jansson et al) Grievor ..~ - and The Crown in Right of Ontario (Ministry of Community & social Sevices) (Ministry of Correctional Services) Employer BEFORE: M. Gorsky Vice-Chairperson J. Carruthers Member D. Daugharty Member FOR THE M.'Bevan GRIEVOR Grievance officer Ontario Public Service Employees Union FOR THE C. Peterson EMPLOYER Counsel Winkler, Filion & Wakely Barristers & Solicitors HEARING March 23, 1992 DECISION The Grievor, Alan Jansson, was at all material times employed as a Probation Officer with the Ministry of Community and Social Services in Hearst, Ontarior and was at all material times classified as a Probation Officer II. The Grievor, Raymond Auger, was at all material times a Probation Officer employed by the Ministry of Correctional Services at Walkerton, Ontario, and was at all material times classified as a Probation Officer II. The grievance of Mr. Jansson states: I grieve that I was improperly classified as a Probation Officer II in the period between November 1983 and July 28, 1987. The Brandt S/one award [sic] has resulted in an extremely unjust award settlement within this classification group. The settlement desired states: I wish to receive full retroactivity and interest from the period November 1983 to July 28, 1987 pursuant to the Brandt Slone [sicl award .... Mr. Auger's statement of grievance is as follows: A recent decision of Grievance Settlement Board (Angus et al.) allowed the classification grievance of 100 grievors and allowed "all grievors shall enjoy the rate of pay established by the Saltman award retroactive to November 13, 1983, which is' 20 days 'before the earliest of the grievances". The settlement desired in the gr. ievance of Mr. Auger is as 2 follows: The Grievance Settlement Board ruled that the upgrading of this classification should have existed, on November 13, 1983. I was a Probation Officer II on November !3, 1983 and would like my salary to reflect the increase from that date on. The grievance of Mr. Jansson is dated February 2, 1990 ~and that of Mr. Auger is dated January 30, 1990. When this matter first came before this panel of the Board on June 18, 1991, we we#e informed that there were approximately 308 individual grievances involving grievors employed ~ither by the Ministry of Co~ununity and Social Services or the Ministry of Correctional Services. The parties filed with us a statement of agreed facts representing a chronology leading up to the filing of the approximately 308 grievances, which is as follows: CHRONOLOGY December 1983 - 100 Probation Officer II's with the Ministry of Correctional Services' filed grievances claiming they were improperly classified. August 1984 - October 21, 1985 ~ Hearing before the Grievance Settlement Board (Brandt Panel) concerning 6 grievances of the 100 grievances filed in December, 1983. October 1986 - Brandt Award issued. The Panel held that the 6 grievors were improperly classified and issued a remedy requesting the employer to classify the employees properly. July 1987 - A new P.O. II Class Standard is created. 3 July 29, 1987 - Civil Service Commission approves the revised Class Standard for nhe probation officer series. January 1988 - Union agrees to revised Class Standard. March 18, 1988 - The employer issued the agreed to Class Standard for the P.O. series. All P.O~. II's are reclassified in accordance with the new revised Class Standard for P.O. II's. February 28, 1989 - Saltman Award is' issued. The Sattman Panel issues an Interest Arbitration Award concerning the wage rate of the new Class Standard for the P.O. series. The Saltman Panel decides that the increase was effective July 29, 1987 when the Civil Service Commission approved the new Class Standard. February 28, 1989 - Sattman Award - on p. 14 the Saltman Panel notes that the Union requested additional ret.roactivity for those employees whose grievances were consolidated under Angus case (Brandt Award). June 8, 1989 - Employer issues cheques to employees classified as P.O. II's back to July 29, 1987 in accordance with the Saltman Award. November 29, 1989 - Sloan [sic] Award issued. The Sloan [sic] Panel decides that all 100 grievors, who filed their grievances in December, 1983, ought to receive the rate of pay established by the Saltman Award retroactive to November 13, 1983, which is 20 days before the earliest of the 100 grievances originally filed in December of 1983. February 2, 1990 - Mr. Jansson files a grievance which states: "I grieve that I was improperly classified as a Probationary {sic] Officer II in the period between November, 1983 and July, 28, 1987." At the hearing of June 18, 1991, we were faced with a preliminary issue rela. ting to whether the grievances of Messrs. Jansson and Auger were to be treated as representative ones, with the decision rendered with respect to Mr. Jansson to be binding on ail grievors employed by the Ministry of Community and Social Services, and the decision with respect to Mr. Auger to be binding on all grievors employed by ~he Ministry of ,Correctional Services. It was the position of the Employer that the grievances were to be heard as representative ones, based on an alleged agreement between the representatives of the parties. In our decision dated September 20, 1991, we ruled that while we could not treat the grievances of Messrs. Jansson and Auger as ~representative ones, theirs would be the first ones to be heard on a resumption of the ~'hearing and th'at, as ail of the approximately 308 ~rievances were-~ said to relate to the same incidents and claimed the same relief, the findings, with respect to evidence that was common to the Jansson and Auger cases and those of other grievors would be binding in the case of the other grievors. That is, if it was subsequently determined that the significant evidence in either of the Jansson or A%{ger cases was the same in the case of any of the other grievors, then the decision in the Jansson or Auger cases would be binding on such grievors. The Board, once it had ruled on matters of evidence, did not intend to re-hear the same evidence, nor, having ruled on such evidence, did it intend to review its 5 legal conclusions previously arrived at. When the board re-convened on March 23, 1992, it heard evidence and argument with respect to the Jansson and Auger cases, and it now renders its decision which is, subject to the above statements, limited to the individual gr~levances of Messrs. Jansson and Auger. Most of the above chronology Of agreed facts which, somewhat cryptically, states the important history that affects our determination is set out in the Slon~e award at pp.2-4: Between August 29, 1984 and October 21, 1985, a panel of this Board chaired by Gregory Brandt, with union nominee Susan Kaufman and management nominee Donald Middteton, heard some 13 days of evidence. On the 10th day of October 1986, the Board issued a very lengthy award consisting of 91 pages written by the Chairperson, a short dissent written by Mr. Middleton, and a short partial dissent written by Ms. Kaufman. To summarize what went on before that panel and what it decided, we can do no better than quote from its award: at p.2: "This award deals with 6 classification grievances. They are 6 among a group of 100 classification grievances all of which involve grievors who are currently classified as Probation Officer 2 {PO2) and who seek classification as Probation Officer 3 (PO3). Prior to the commencement of hearings the parties came to an agreement whereby_the Union would proceed with the 6 grievances the awards in which would form the basis upon which the parties would attempt to negotiate a settlement of the remaining grievances. In the event that settlement could not be achieved the Board would remain seized of jurisdiction to hear and disppse of the outstanding grievances." "The parties also purported to reach some agreement as to the application of the evidence ted in respect of these grievances to any further proceedings that may be necessary before this Board in relation to the other grievances. Counsel for the Union informed the Board on the first day of hearing that the parties were in' agreement that 'all of the evidence for the first 6 grievances would continue to apply to the next cases but that the order of the Board would be final only with respect to the' 6 grievances put :~efore the Board' Counsel for the Employer did not directly 5ake issue with that s%atement. He stated that al1 are individual grievances and that the parties were looking for individual decisions." at p.85: "Thus, we have arrived at the situatioh where we .find: 1. That the PO2 standard is inappropriate to describe the actual job duties of ail the 9rievors at the time of the 9rievances~ and 2. that those duties do not bring the grievors either on a standards o~' a usage approach within the PO3 classification; and 3. that this is not an appropriate case for using the 'best fit' approach in such a wa}, as to bring the grlevors within the PO3 classification. As the Divisional Court has stated in Berry and Canning (supra) we are not permitted to dismiss the grievances and simply 'confirm' the grievors in their existing classification. A breach of the Collective Agreement has been established to our satisfactioq, and the grievors, are entitled to a remedy. They are entitled either to be placed in --' some other existing and appropriate classification or to be re-classified in a newly created classification. We were not informed as to any other existing " classification · that might be appropriate. Consequently, we have no basis for placing the grievors in a classification other than the one claimed. Nor do we read Berry or Cannin~ as stating that the Board itself could create the classification into whigh the grievors should be placed. Indeed, that would appear to fly directly in the face of Section 18(1) of {the Crown Employees Collect%ye BarQaining Act~ under which we derive our jurisdiction. 7 Consequently, what we are left with is an order directing the Employer to classify the Grievors properly having regard to their duties. We so order." at p,91: "In summary, all of the grievances are allowed and it is hereby declared that the Employer classify the grievors properly." Further elaborating on the history, the Slone award states, at pp.4-6: Following the Brandt award, the Employer undertook a complete revision of the class standards for the series, and came up with a new classification that applied not only to the grievors but also to all Probation Officers in the Ministry. Because the parties could not agree on the appropriate level of compensation for the new classification, the issue was referred to arbitration before an interest board chaired by Maureen Saltman. In February 1989, the award was released with dissents from both the union nominee Larry Robins and the employer nominee Ian Cowan. To illustrate the situation before that board we can do no better than to quote from that awa rd: at p.2: "In December 1983, some 100 grievances were filed by Probation Officers claiming that they were improperly classified as PO 2's and requesting reclassification as PO 3's. The grievances came before a panel of the Grievance Settlement Board chaired by Vice-Chairman Gregory Brandt. At the outset of the hearings., it was agreed that the Union would proceed with six of the grievances; that the Board would issue an award on the six grievances; and that the parties would attempt to negotiate a settlement with respect to the other 94 grievances based on the Board's award. In the event that a settlement could not be reached, the Board retained jurisdiction to deal with the outstanding grievances. On October 19, 1986, the Board issued its award on the six grievances: see Angus et al., G.S.B. 203/84. The Board concluded (1) that the PO 2 class standard did not adequately reflect the nature of the work performed by the grievors; and (2) that the work was also not covered under the PO 3 standard." at p.4-5 "By way of remedy, the Board directed the Employer to classify the employees propert, y having regard to their duties... "In August 1987, the Employer created a new class standard for the PO class series. ~he revised standard was approved by the Civil Service Commission on July 29, 1987 and agreed to by ~he Union in or around 3anuary 1988... "Notwithstanding agreement on the content of the class standard, the parties could not agree on a salary range for the revised standard. Accordingly, they referred their salary dispute for determination under Article 5.8 of the Collective Agreement, which reads as follows: 5.8 When a new classification is to be created or an existing classification is to be revised, at the request of either party the parties shall meet within thirty {30) days to negotiate the salary range for the new or ~evise~ classification, provided theft should no agreemen~ be reached between the parties, then the Employer will. set the salary range for the new or revised classification subject. to the right of the parties to have the rate determined by arbitration. at p.14: "Taking into ~ccount all the factors set out herein, an increase of 6% in the salary ranges for both PO 1 and PO 2 levels is, therefore, awarded. By agreement of the parties, this increase will be effective from,July 29, 1987, which is the date of the submission, ~s well as ,~.~ approval, of the revised class standard to tKe civil Service Commission. Although the Union requested additional r&troactivity for those employees whose grievances were consolidated under the.Angus case, in our view this matter is properly- within the jurisdiction of the Grievance Settlement Board to which those grievances were referred. However, in light of the length of time that has passed since the filing of those grievances, we would urge the parties to attempt to settle .the issue of .retroactivity between themselves. Should they be unable to do so, however, the matter would have to be determined by the Grievance Settlement Board." 9 Following the advice of Ms. Saltman~ the Union has brought on for hearing the 100 original 9rievances. When this panel learned of the h£snory of the matter, we asked the parties whether it might not be more appropriate for Mr. Brandt to hear the matter,, either with new nominees or as a single arbitrator. It was clearly impossible to empanel the entire previous board owing to the death of Mr. Midd[eton and Ms. Kaufman's departure from the Board. The parties both agreed that they had no objection to this panel hearing the matter, and that we could regard ourselves in the same position as if we had issued the Brandt award. The issue in the cases before us relates to whether the Grievors are entitled to be paid at the'Probation Officer II level retroactive to November 13, 1983 as were the grievors in the Slone award. In dealing with the ~ssue as to whether or not all 100 grievors before the Slone panel should receive additional retroactive payment with interest on the amounts owihg, and if so, to what date, the Board there stated at. pp.10-12: The argument for retroactivity is simple. The grievors established that they were wrongfully classified, and had there been a suitable classification in which to place them, there would have been n° reason %o depart from the usual practice of making the reclassification retroactive to 20 days before the filing of the grievance. Why, it is argued, should the-grievors be penalized because there was no appropriate classification? It is ~he Employer's responsibility to create classifications, and it should not profit from its failure to create a proper classification. Where the Board issues an order to reclassify, this ought not to be a second-class remedy. That would fly in the face of the Divisional Court's judgment in Be~. (unreported, March 13, 1986) wherein the broad remedial jurisdiction of this Board was remarked upon. Counsel for the Employer offered no real argument as to why the grievors should not have their complete remedies. He alerted us to the fact that this would cost the 10 Employer a lot of money., hut t~at is surely not a valid consideration. The Employer has had the benefit of the work that the grievors did while wrongly classified and thus underpaid. Ali we would be doing is make the Employer pay a fair wage for the work it received. The equities overwhelmingly favour the grievors. We do not find it necessary to recite the mahy authorities th;%t have established the principles of retroactivmty and interest. Those cases all support the grievors. None of them support the Employer .... Accordingly, we allow all of the lO0 grievances to the extent that they are before us, and declare grievors shall enjoy the ra~e of pay established by the Saltman award retroactive to November 13, 1983, which is 20 days before the earliest of the grievances. There was at the outset of the bearing before us on March 23, 1992, an objection, continued by counsel for the Employer from the earlier hearing of June 18, 1991, t'hat the 'grievances were ~narbit~able, allegedly having been ~led out of time, It was submitted that with the creation of the new PO ti class standard in July of 1987 re-classifying all PO II's in the province from March~ 1'8'/ 1988, retroactive to July 29, 1987, the matter was moot as the g~ievances before us were not filed until January and February of 1990. At the time-the grievances were filed, they were governed by the provisions of the Crown Emplo_q~.~_~_~ Collective Bar~inin~ Act R.S.O., 1980 cap 108 (as amended) ('the "Act'"). Section 18(2)(a) of the Act s~ates: In addition to any other rights of grievance unde~ a .collective agreement, an employee claiming, that his' posLtion has been improper'iv classified; ... may process such matEeu in accordance with the grievance procedure provided in the collective ~greement, and failing final deuermination ~nder such procedure, the matter may be processed in accordance with the procedure for final determination applicable under section 19. In Re Attorney Genera. 1 for Ontario and KQellsg_~qi al. (t980), 30 O.R. (2d) 662 (Div. Ct.), the Court considered whether the Board's interpretation of its statute was patently unreasonable. Reference was made to what are now sections 18 and 19 of the 1980 Act, which read as follows: 18.-(1) Every collective agreement shall be deemed to provide that it is the exclusive functioa of the employer to manage, which function, withou~ limiting the generality of the foregoing, includes the right to determine, {a) employment, appointment, complement, organization, assignment, discipline, dismissal, suspension, work methods and procedures, kinds and locations of equipme~t and classificatiou of positions; and (b) merit system, training and development,- appraisal and superannuation, 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, (2) In addition to any other rights of grievance under a collective agreement, an employee claiming, (a) that his position has been improperly classified; (b) that he has been appraised contrary to the governing principles and standards; or (c) that he has been disciplined or dismissed or suspended from his employment without just cause, may process such matter in accordance with the grievance procedure provided in the collective agreement, and 12 failing final determination under such procedure, the matter may be processed in accordance wzuh the procedure for final determination a~plicable under section 19. R.S.O. 1980, c. 108, 19.-(1) Every collective agreement shall be deemed to provide that in the event the parties are unable to effect a settlement of any differences between them arising from the interpretation, application, administration or alleged contravention of the agreement, including any question as to whether a matter is arbitrable, such matter may be referred for arbitration to the Grievance Settlement Board and the Board after giving full opportunity to the parties to present their evidence and to make their submissions, shall decide the matte~r and its decision is final and binding upon the parties and the employees covered by the agreement. (2) The Grievance Settlement Board has the same powers as a board of arbitration under subsections 11 (11) and (12). (3) Where the Grievance SetSlement Board determines that a disciplinary penalty or dismissal of an employee is excessive, it may substitute such onher penalty for the discipline or dismissal as it considers just and reasonable in all the circumstances. (6) Where a party oz' an employee has failed to comply with any of the terms of'the decision of the Grievance Settlement Board, any party or employee affected by the decision may, after the expiration of fourteen days from the date of the release of the decision or the date provided in the deci'sion for compliance, whichever is later, file in the office of the Registrar of the Supreme Court a copy of the decision, exclusive of the reasons therefor, whereupon the decision shall be entered in the same way as a judgment or orde~ of that court and is enforceable as such. R~.S.O. 1980, c.108, s.19(6). In the Keeling case, the Court considered (at p.665): "... The argument [allowed by the Board]... that [sections 18 and 19] of the Statute guaranteed a ~right to grieve with respect to a dismissal that could not be ~derogated from by anything in a collective 13 agreement. The result would be that a failure to observe the time- limits in the agreement would not prevent the grievance from being launched before the Board or inhibit the Board in making a final determination of it." The Court, at p.667, came to the conclusion that it could not "say that the Board's interpretation was patently unreasonable," and it dismissed the application. The arguments in the KeelinG case'are equall~y compelling in the case before us which deal with the same sections, although with the specific subject of classification .grievances. Does it make any difference that the Grievors, in the cases before us, filed their grievances following their reclassification by their respective employers, claiming~that they should have b~eh reclassified at an earlier date, and requesting retroactivity from that earlier date? The position of counsel for the Employers was that there was, in the circumstances, nothing left to grieve after the reclassification in 1987. In Re Ontario Public Service ~m~loyeeg U[lion and the Crown ih Right of Ontario et al. (1983), 44 O.R. (2d) 51 (Div. Ct.), the grievor complained that "for some period of time'he was improperly classified." The background, as set out at p.2 of the award of the Grievance Settlement Board, is set out at p.52 of the O__PSEU case: Problems with the classification of approximately 75 employees became apparent as early as 1974 in the Ministry. By October, 1980, at least 12 grievances had been filed. About that time all of these were settled and pay was made retroactive to differing dates. Ali employees concerned, i..e., 75 or so, were reclassified as of October 1, 1980. After some of these received the notice of reclassificstion and found out the date of the retroactive salary .increase (July 1-, 1980), some eight nine including the gri. evor filed further grievances. The grievance as filed (see p.2 of the OPSEU case) : "... was to the effect that the grievor had been classified improperly as a Rehabilitation Officer II since July 1, 1978," and the settlement required was "reclassification to [the] Social Worker II posit, ion effective July 1, 1978 and payment of retroactive monies ~o that time." The Board,~ at p.3, stated: "Thus the problem of c'lassification was known to the ministry from .the time the grievor was hired and the classification was finally resolved in October, 1980. The Board concluded that under the Act and article five of the relevant collective agreement, it had no jurisdiction with respect to matters o~ retroactivity and refused to hear the grievance on the merits. At pp.52-3~of the OPSEU case, the Court noted that: The board acknowledges that it has made retroactive awards in the past in some cases, but distinguishes them by reference to th& fact that in the present case, the classification was changed before the grievance was filed and the issue was, therefore moot, 15 The Court did not agree arid stated that: "The un~latera] settlement does not bring the issue ~o a close and the issue as to the date on which the classification should have occurred is very much outstanding." The Court went on to say, at p.53: In our view, the issue of the "time when" can be just as much a classification grievance as a simple claim for reclassification. To the extent that the board felt that the point was moot, we are of the opinion that ~hev ~{ere wrong. We have no doubt that s.18(2) of the Statute applies notwithstanding the e×iste'dce of the collective agreement. The statutory section is not limited in its application to probationers or others who do not have the full protection of the agreement. In accordance with the reasons of Osler J. in the OPSEU case, we find that we have a jurisdiction to deal with the "time when" issue which has been~held to be a classification grievance. Counsel for the Employer also took the position that if we concluded that this was a classification grievance, we should decline to hear it on the merits because such a hearing would require us to hear evidence with respect to such matters as the duties and responsibilities of the Grievors during the period 1983 to July, 1987. We were asked to find a presumption that, in these circumstances, the Employers would be prejudiced in presenting their cases because of the difficulty In obtaining witnesses who could with reasonable accuracy recall events occurring so long ago, as well as in locating other evidence necessary to present their cases · The position taken on behalf of the Grievors was based on an 16 assumption that there was nothing to differentiate the facts is the Grievors' cases from those applicable to the hundred grievors dealt with in the Slone case. The position taken on behalf of the Grievors was that stated in many cases, such as Re C.G.E. (1950), 2 L.~C. 5B7 (Laskin), that equal work will attract equal pay. Reference was made to Re Falconbridge Nickel Mines {1969), 20 L.A.C. 45 (Weiler), at p.50, where it is stated that: One of the main purposes of a wage ~classification system, particularly if supplemented by a specific temporary assignmentprovision as here, is to create uniformity and equality in payments of the same kind of work. It simply unfair for tW6" employees who are doing the same kind of work, perhaps even working together, to be paid substantially different rates where no differences in skill are exhibited. Reference was also made to Re Ontario Hyd~'o and Canadian Union of Public'Employees Local !000 (1983), 11 L.A..C. (3d) 404 (Shime), at p.410: Generally, in circumstances such as this, additio~a~i compensation, if any, for the work performed should be determined in accordance with any job classification system under the collective agreement. In the eveat job classification system exists or is inadequate to the task, the concepts of a ~uantum merui~ claim should be utilized and adapted to the collective bargaining system in order to determine the amount of compensation to be paid. While the statements relied on are generally accepted, we are dealing here with cases involving a claim for retroactivity and we must determine the issue in the light of jurisprudence relating to that subject. The Union relied on .OPSEU (Hillman), 2007/89 (KaPlan). In 17 that case, a grievance was filed on February 9, 1990 by a Senior Construction Technician with the Ministry of Transportat:.>n who grieved that he was improperly classified and sought reclassification, "to a more appropriate ctassificationr retroactive to the date of first filing of grievances on this matter of improper classification." There, at p.2 : "... the only matter in dispute was the extent of the retroactivity of griever's reclassification, the employer having agreed that [the griever] was in fact improperly classified." In the Hitlman case, the griever had worked as a Senior Construction Technician since 1980. in the Ministry of Transportation's Northern Region. In January of .[990 he learned from another employee that a decision of the Board, referred to as the Truchon decision (93/88), had been issued. In Truchog, some 35 Senior Construction Technicians in the Ministry's Northern Region sought reclassification. The Board found the Truc_ ~hoo grievers to be improperly classified and granted a Derry order requiring the employer to ~roperl~ classify them. There is some similar[ty between the facts of the Truchon case and o~ the cases before us. The Grievers, in the case before us, when they found out about ghe Slone award in the Angu~ case, and its ruling with respect to retroactivity, filed their grievances. In the case before us counsel for the Union made the same · ' submission as was made'in the Hillman case at p.4-5: In his first submission, union counsel took the position that the twenty-day rule should not apply.~', to classification cases in 5hat this twenty-day rule owes its genesis to the time limit provision.in the collecuive agreement. Simply put, this rule holds that since an employee has twenty days in which to file a grievance, retroactivity should be limited to those twenty days. In contrast to this situation, the right to .grieve classifications was a statutory one, and so counsel argued that the twenty-day rule was inapplicable, Counsel noted '~.hat the~-e was no time limitation on the filing of certain grieva0ces including classification grievances (Re Attorney-Ge~%eral for Ontario and KeelinG e~ (1980) 30 O.R. {2d) 662), and he argued that there should likewise be no time limitation .on the retroacti.vity of classification grievances. Counsel observed that the Board had the jurisdictional ~-ight to award retroactivity (Re OPSEU and t~D_~r__own in righ~ of Ontari~ (1983) 44 O.R. {2d) 51), and he invited the Board not just to awardl, the grieuor in this case the desired retroactivity but to declare that the twenty-day rule does not apply to retroactivity in classification cases. Counsel submitted that the only limitation on retroactivity in classification ca. ses should be delay, waiver or prejudice. In Woods 224'/79 (Swinton), the Board adopted the ruling in Keeling and said: This does not mean that an individual has unlimited right to seek arbitration of a dismissal or disciplinary action at any time, even years after the event. He may be me% by evidence showing that he had accepted management's action and therefore, there has been a final determination under the grievance procedure "acceptable to the employee" .... The onus is on the employer to show that there has been such an acceptance of the decision by the employee Alternatively, a grievor who proceeds under s. (187(2)(c)] of the Act may still be met with an argument that the arbitrator should declare the matter inarbitrable because of undue delay. This is not an argument going to the jurisdiction of the arbitrator, as were the earlier arguments. Rather this is a decision on the merits of the case, taking into account evidence of prejudlce to the employer's case caused by delay (at 4-5). Since there was no statutory requirement for the application in classification cases of the twenty-day 19 rule, and since there was no waiver, prejudice or delay in this case, the 9rievor having ahted immediately upon learning of the Truchon decision, the employer having been aware that the classification of Senior Construction Technicians was in dispute, and the ability of the employer to present its case not being hampered in any way, union counsel submitted that the grievor should receive the same retroactivity as did the grievors in Tluchon. The Board's decision in Hillman' did not deal with this submission. In Hillman, in reviewing the arguments made, the Board noted, at p.3, that: "Counsel for the union began its submission by acknowledging that the usual procedure in classification cases is to limit retroactivity to twenty days prior to the filing of the grievance. In counsel's view, however,! this was a case in which the usual practice should not be followed." In addition to the first submission that the twenty-day rule should not apply to classification cases, counsel for the union in Hiilman argued, at pp.6-9, that even if the twenty-day rule was found to be applicable: ... there was jurisprudence supporting a departure from this rule where the facts and circumstances required it. In general, those classification cases that have departed from the twenty-da'y rule require 9rievors to have communicated dissatisfaction with their classifications to their employer prior to the filing of a grievance. Some cases have required a representation from the employer that it agreed with the pre-grievance complaint, or that the pre-grievance complaint would be addressed. Many of these cases departed from the twenty-day rule in order not to discourage parties from, or penalize them for, attempting to resolve their disputes before resorting to formal grievance procedure. In Sabo 777/86 (Dissanayake), a case which reviews a number of the authorities on point, the Board considered the jurisprudence relating to departure from the twenty-. 2(] day rule in classification cases. That case is different from the instant one, in that in Sab~o the grievor had discussions with the employer about,her dissatisfaction with her classification, while in the instant case there were no such discussions between the 9rievor and the empioyer. The Board in ~_b_Q held that in order to depart from the twenty-day rule: There must be evidence that the 'Employer was made aware expressly or tacitly, that the employee is contemplating the filing of a grievance if the outcome of ~nforma] procedures is not satisfactory (.at 27). Counsel argued that the employer in the instant case was effectively put on notice by the filing of the Truchon gr-ievances that Senior Construction Technicians in the northern region considered themselves to be improperly classified. While the grievor in this case did not personally bring his complaint to the attention of management, the Complaint itself was formally brought, to the employer's attention by ~he filing of the various Trucho~ grievances. This was not., therefore, a case where the employer could say that' ~t was caught unaware of the complaint, and that to extend retroactivit~ to the grievor would be to create an unfairness to the employer. In union counsel's view, it should not be necessary for every grievor in a particular classification to file grievances in order to resolve an improper:~ classification. The classification of Senio~ Construction Technician's was held by this Board to be an improper One, and that ruling should apply, counsel submitted, to e~ery grievor in the classification. The employer has acknowledged this principle in part by undertaking to reclassify the grievor in the same way as the Truchon grievors. Arguably, it should also take the next step and compensate the grievor in the same way. In support of this proposition counsel drew the Board's attention to the Baldwin & Lyng 0539/84 (Mitchnik)~ decision. This case also concerned retroactivity. In Baldwin the grievor was ready to grieve on a particular date but did not do so after being advised that a classification review was underway. When the B__aldwin grievor learned that this review would not address his particular complaint he filed a grievance. The Board in Baldwin determined that retroactivity should date from the time the grievor first determined to file a grievance. In support of this finding 'the Board said: Where"management has been made fully aware of the 21 complaint, and is actively ia ~he 9uocess off reviewing it, the parties would be little served by the Board adopting a position which would force the employees concerned to "fformalize", and potent±ally polarize, the situation' by grzeving before management has had the opportunity to render its decision (at 16-17). Union counsel also drew the Board's attention to Ma. Soiberg's addendum in the Baldwin decision: It has been my experience that any claim for retroactivity invariably involves a recitation of Article 27,2.1 which speaks to the time frame within which ar, employee may file a grievance. This is the clause upon which Boards have traditionally relied to limit the term of any retroactive payment. The Board has used this benchmark in the belief that to do otherwise would be to penalize an employer, improperly for' breach of an agreement of which it was unaware. And, in general, thaz's probably a fair enough balancing of the interests at stake. But, with respect, that kind of reasoning fails in the case of a classification grievance. Let's not forget what a classification grievance is all about. Quite simply, it arises when a group of .employees asserts that the content of their work has been incorrectly evaluated and that the value of their work has been incorrectly compensated. In a case of this sort, there wilt never be any penalty to the employer; quite the contrary, the prejudice had been borne entirely be the employees, All that's happened to the employer is that for a specified period of time, it has had the benefit of employees at a cut-rate cost. In my view, that's why classification grievances have to be viewed differently by the Board. The moment a group of employees come forward with a claim that they have been improperly classified (whether formally frame~ or otherwise), is the moment at which an employer has been put on notice. And should the grievance succeed, then the balancing of interests surely makes a compelling argument for retroactivity back to the initial complaint. Union counsel argued that this:decision, and the cases on which it relies, as well as Ms. Solberg's addendum, was applicable to the present case. The matter in dispute '22' was brought to attention of the employer by the filing of the Truchon grievances. Counsel argued that at the very least, this was comparable to the grievor bringing up his complaint in a discussion with his supervisor. The employer had formal notice of the complaint, and this Board adjudicated on it Not to award the grievor The same re~roactivity as in T~.uchon would be To crea~e a situation where the grievor in this case will be paid differently than the grievors in Truchon, when ail of these Senior Construction ~chnicians were performing exactly the same work, side by side at exactly the same time. This, counsel submitted, would be grossly unfair. In allowing the grievance in ~i]"~ma__n, the Board stated, at pp.11-12: In our view this grievance must succeed. In Smith 237/8t (Roberts), the Board said: "The usual rule is that, barring the existence of circumstances that would make it inequitable for the Ministry to rely upon it, retroactivity will be limited to the period of time within which it was permissible 'for the grievor to file his grievance" (at 6). We are of the view that there are circumstances in this case which would make 'it inequitable to limit retroactivity. ~o twenty days .... We reach this result based on our fi'nding that this is - one case where it would be equitable to extend the period of retroactivity beyond the twenty-day period generally awarded in classification cases. "~ ~'~ At p.12, the Board stated: We find support for this result based in the line of cases which have held that where the employer has been put on notice of the complaint prior 'to an actual .... grievance being filed, the period of retroactivity may be extended where ci'rcumstances warrant. In this case, the employer was put on notice by the filing of the Truchon grievances. Counsel for the Union in the case be£ot'e' u~ argu(~d tlc,it '[lie Employers were put on notice by. the filing of the hundred grievances in the Angus et al. case. 23 The Board in the Hi]lman case concluded at pp.12-15: Moreover, in this case, all ~>f the employees eventuai].y subject to reclassificatioq work for the same Ministry. In addition, the Truchon grievors, and the grievor in the instant case, work in the same District. It can hardly be said that the Ministry was taken unaware by the instant grievance. It knew that the classifications of Senior Construction Technicians in the northern region had been brought into issue, and it ]<new that should those classifications be found wanting that every Senior Construction Technician would have to be reclassified. It would defy logic, commonsense and fairness to deny the grievance in this case for to do so would mean tha~ some Senior Construction Technicians would receive reclassification, and presumably better compensation, for their work, while their fellow employees, performing exactly the same duties a~ exactly the same time would not receive reclassification and compensation for the period in question. In the OPSEU case, clted above, the Divisional Cour~ held that "the issue of 5he 'time when' can be jusE as much a classification grievance as a simple claim for reclassification" (at 53) . That is the issue in this case. The grievor had both a collective agreement and a statutory right to bring this grieva'nce to the Board. In adjudicating this grievance, we have the jurisdiction to determine, as the Divisional Cour~ put it, the "time when." In our view, this is an appropriate case to extend the period of retroactivity. We are also of the view that the Agnew case relied upon by the employer can be distinguished from the i[~stant case. The basis for the distinction is %hat the Board in Agnew ruled that the grievance was out of time. The grievance was denied on that basis. In the instant case, unlike the situation in A_~, there is no question of timeliness. The grievor has a statutory right, unhindered by time limits, tO file his grievance. As Professor Swinton noted in the Woods case, failure to expeditiously fiie a grievance where a st'atutory right exists may go to the merits of that grievance taking in~o account prejudice to the employer caused by delay. There was neither delay nor ~z~ejudice in the instant case. Indeed, if this grievance were to be dismissed it is the grievor who would be seriously prejudiced in that result as the employer would then receive, as Ms. Solberg noted in her addendum in .Baldwin, "the benefit of employees at a cut-rate cost." It is also worth pointing out that in fashioning this remedy the grievo~' is not receiving retroactivity to the date of hire in a particular classification later determined to be incorrect. To our knowledge, no panel of [his Boa~'d has made such an award, and neither do we. All we are doin~ in ~his award is e×tending the range of cases where the Boa~'d has ruled that the circumstances would make it £nequitable for the employer to rely on the twenty-day rule. As the Board observed ir, OPSE'U and Ministr_v of the Attorney-General 71/76, "boards of arbitration have consistently limited an employee's right to claim damages for the breach of an agreement I'o the period of t.ime within which it was permissibte..to file this grievance." We do not take issue'with this. We recognize, however, as did the Board in Baldwin, that the twenty-day period is not a "hard and fast rule" {at 8}. Uery simply~ ~he twenty-day rule is not, in our view, a rule which applies in this case. Exceptions have been recognized to this twenUy-day rule. The instant case is another such exception. The grievor will not receive "fnfinite retroactivity" by this award. All that he will t-ecetve is the retroactivitv awarded in the Truchon case. The employer will [n no way be prejudiced.by this result. There are some significant differences between the cases before us and the Hillman case. Only Mr. Auger works for the same Ministry as the Grievors in the ARGus case. In the Hillman case? the grievor worked in the same district as ~he Truchon g~'ievors. In fact he was said to have worked beside them aL all amatertal times. In the cases before us we cannot tell whether Mr. Auger worked in - the same district as any of the hundred grievors in the Angus case or worked beside them. Mr. Jansson, in any event, being in another ministry would not be in the same district as any other of the Angus grievors. It may be that the Employers knew that should the classifications in the Angn__s case be found wanting that every PO II would have to be reclassified. We are not in a position to make sueh an assumption, and there was no evidence that enabled us to 25, reach that conclusion. In Hillman the inequity that was addressed by the Board was based on a conclusion that a denial of the 9rievance would result i~ "some Senior Construction Technicians' reclassification, and presumably [receiving] better compensation, for their work, while their fellow employees performing exactly the same duties at exactly the same time would not receive reclassification in compensation for the period in question." Counsel for the Employers in the cases before us rejected, in the strongest terms, any suggestion that the G~ievors, during the relevant period for which retroactivity was claimed, performed exactly the same duties at exactly ~he same time as the grievors in the An_g_q_g~ case. There was' no evidence adduced that would enable us to reach this conclusion and the evidence referred ~o in the An_D_g_u~ case awards does not enable us to draw this conclusion. ~ It may be, as the Union suggests, that the Employer is seeking to obtain "the benefit of employees at a cut-rate cost," (See the quotation from the addendum of Ms. Soiberg tn ~[dwin, referred to in RillmaD at p.14.] If we were to hold that this was the case, we would be basing our conclusions solely on the fact that all of the grievors in An_c~us and the Grievors in the case before us were PO Ii's during the relevant-period. In the An___gus case there was evidence that the grievors had been wrongly classified at the date · of the filing of their grievances. ~here: "The employer has had 26 the benefit of the work that the grievors did while wrongly classified and thus underpaid. All we would be do'lng is make the employer pay a fair wage for the ~ork it received." (Slon~ award at p.ll.) In the case before us, the Employers did not acknowledge -- that this was the case, nor was any evidence adduced to establish that this was the case. When the Q~ case, above referred to, was referred back to the Board for determination on the merits (OPSEU (Stephen C. Smith) and Ministry of Cqn~UD~ty and Soc].a] Services, 257/81 (Roberts), the Board, at pp. 5-7, referred to the argument of the union with respect to the limitation of retroactivity.to twenty days before the date of filing of a grievance, which was al~o made in the case before us: · At the hearing, the Union submitted that in classification cases, the usual arbitral rule regardin'g retroactive payment for continuing b~eaDhes, which in the case of this Collective Agreement would limit retroact~vity to 20 days before the date of filing of the grievance, does not apply. Several cases were cited in support of this proposition; however, upon review, they did not seem to be capable of supporting any such wide rule. In fact, they seemed to be confined to their own peculiar circumstances. For example, in Re Schmidt & Ministry Df Environment, G.S.B. 5/76 (Beatty), the grievor was prevented from grieving until the relevant , class series was introduced and made retroactive by the Ministry. In Re Parise and Ministry of the At%orney- General, ..G.S,B. 238/83 {Roberts), the Board merely corrected an error that the Ministry had made in ..selecting an appropriate retroactive date for a new classification. Neither of these cases involved the Board in rejecting on some general basis the usual rule regarding retroactive'payment for continuing breaches of a collective agreement. The usual rule is that, barring' the existence of circumstance--wh~ch..-would make it i'nequitable for the 27 M:nistry to ~'elv upon ~.t. 1.'etroactivity will be limited to the period o[ time within which it was permissible for ~:h¢. grievor to file his g~'ievance. In the case of thJ_~ Collective Agreement, that period is 20 days prior to the day upon which the grievance actually was filed. See OPSEU and the Mlnls~_ry ~f the Attorney-General, 71/76, in which the Board stated: "while it is, in our vfew, clear that the employer fai]e~ to comply wLth the provisions of Article 10.3 throughout ._h~ ~eriod from January 28, 1976 until July t2, 1976, we do not believe that these employees who ~nitiated their complaint only on May 25, 1976, may properly claim relief throughout that period. To the contrary, and to hold otherwise, would be to improperly penalize the employer for the breach of an agreement of which it was not aware. Thus, where as here, the breach of the agreement is in the nature of a continuing one, boards of arbitrati, on have consistently limited an employee's r~ght to claim damages for the breach of the agreement to the period of time within which it was permissible to file his grievance. Re: Union Gas Co. of Canada [,t~ (1972), 2 L.A.C. (2d) 45 (Weatheritl). Re: Automatic Screw Machine Prod~]cts Ltd. (].972), 23 L.A.C. 396'(Johnson). ~D: Nation, j_ Auto Radiativ~ Manufacturing Co. (1967), 18 L.A.C. 326 (Pa.lmer)" There was nothing in the present case to indicate that classification cases were possessed of such peculiar characteristics as to render inapplicable this general rule. In spite of this, it was suggested in the submissions of the Union that for whatever reason, the Board refused to apply the rule in R~ Hooper and Ministry of Government Services, G.S.B. 47/77 (Swan)~ and opted i'nstead for retroactivity to the date upon which the grievor made known to management his "complaint" regardless of whether it was in the form or a grievance. Upon review, however, it does not appear that the'case in question is at ali inconsistent with what already has.been said. In that case, the circumstances were such as to make it inequitable for the Ministry to rely upon the rule. There, the Ministry took unilateral action in response to the grievor's complaint which might have resulted in the reclassification that he sought. It was only when the Ministry made known that it would refuse his request that the grievor realized he woul'd have to use the grievance procedure. Because of this, the responsibility for the delay was that of the Ministry and, as such, could not 28' equitably be laid to the grievor. In the Smit_hh ease, the ~rievor was reclassifie~ to [he level of Rehabilitation Officer II on July t, 1978. He wa~..performing the same work as persons classified in the SocLai Worker .rr classification but was paid tess, apparently on the basis that there was a requirement for a higher educational leHDl for persons i6 the Social Worker I1 classification. Prior to July 1, 1978, two Rehabilitation Officer II's who were employed in' a different facility in another city initiated grievances raising the same complaint. It appears that the union made some effort to advise the 75 Rehabilitation Officer II's who .were employed by the m}nistry at that time that they ought to file similar grievances in order to protect their rights. There was no evidence t'o indicate that the grievor became aware of the efforts of the union. Ultimately a total of 12 Rehabilitation Officer II's filed sim~i?r grievances. The 12 grievances never went to arbitration and were settled in the first part of October 1980, with the 12 grievors being shifted into the.'classification of Social Worker II effective twenty d~ys prior to the date upon which each individual grievance was filed. There was also agreement that the remaining Rehabilitation Officer II's would be shifted into the classification of Social Worker II, but, in their case, retroactivity was limited to a three month period, the effective date being July 1, 1980. The grievor regarded the retroactivitv 29 granted to him as being unfair and concluded, on the basis certain s~atements made to him by his supervisor, ~ha~ whatever ruling 'came down it would be provided across the system, and these statements applied to retroactivi~y as well. ff this were done the grievor would receive retroactivity to at least J~]ly 1, i978, the date upon which he became a 'Rehabilitation Officer I!, and by which date his supervisor had notice of his dissatisfaction with the disparity in wage rates for ~he same work. On November 21, 1980 he filed his grievance. There is some similarity between the facts in the cases before us and those in the Smith case. In examining the facts to see whether an equity existed against the Ministry, the Board concluded, at p.8, that: ... lilt does not appear that the representations which were made to the grievor by [his supervisor] were of such a character as to raise any equity against the Ministry. These remarks were not clear and unequivocal; they seem to have been of a broad, general ~ature. Acco~-ding to the grievor's own t. emtimony, the s~ecific question of retroactivity never was addressed. For alt that the evidence tends to indicate, the remarks might solely have amounted to a representation that if a shift to the classification o~ Social Worker II were to occur as a result of the grievances, that shift would be applied across the board. This is, in fact, what happened. Moreover, it seems evident from [the supervisor's[ testimony that her remarks were made in the context of casual conversation and were not intended to induce the grievor to act in reliance upon them. In the case of Boner et al. 1563/85, 1571/85 (Kates), the parties also agreed that prima fac~e the twenty-day rule would normally apply ~n calcdlating compensation payable to the grievors arising out of their successful claim for reclassification. In that case the union wished to depart from the rule and have retroactivity allowed to the effective date upon which certain other grievances presented by employees in the same classification 'in another region of the province were settled. 'It was argued the% the ministry had been made aware of the discrepancy or shortcoming .in the status of the classificaSion for pay purposes in the other region and that it: "should have taken like and appropriate measures to correct the same discrepancy with respect to [employees in the same.classification] at its other regions. Accordingly, it was submitted that the Ministry had unnecessarily delayed, to the grievors' prejudice, the inevitable correction in their classification for pay purposes to the '-[classification they sought]." (At p.tl) The Board found no equity in the 9rievors that would permit it to award compensation' retroactively to the' date sought by the " grievors. ' In Robbs et al. and Allen et al. 462/86 (Kennedy), the Board dealt with a number of grievors who claimed reclassification and asserted retroactivity entitlement 'to various dates on the basis that they were entitled to payment under exceptions to the twenty- day rule. The Board stated at pp.14-16: ... However, on the fundamental issue,.even if w~ were to accept the Union evidence in its entirety, we cannot find on that evidence that it would be reasonable for the Grievors to conclude that they had received any 31 representation or warranty that there would be a reclassification or tha~ it would be retroactive. In BoyLe the Board stated at p. 16 the following: Thus, we do not believe it appropriate to apply the 20-day rule where informal efforts have been made to achieve a settlement of a dispute short of recourse to arbitration. Those efforts should be encouraged and, in the event that they are not successful in achieving settlement and it becomes necessary to grieve, such relief as might be awarded by the Grievance Settlement Board should be retroactive to the point where steps were first taken to settle the grievance informally. The discussions relied upon by the Union in this case were in substance in the course of normal office conversation and were in no sense in the context of the settlement of any sort of dispute. No grievance of any sort was in contemplation at the time of such discussions. We would agree with the characterization of our jurisdiction by counsel for the Employer as being one of interpreting and applying the collective agreement and that the only way we can elect not to enforce the bargain reached by the parties would be in circumstances amounting to estoppel as against the Em~,toyer. The collective agreement, as frequently interpreted by this Board~ imposes mandatory time limits, and for the Union to succeed in achieving an earlier date of retroactivity this Board must be persuaded not to apply the time limits provided in the collective agreement. To do that, we must find that for some reason the Employer is estopped from relying on its strict rights as set out in the collective agreement. We do not accept the Union argument that some lesser standard is sufficient to - warrant retroactivit¥ to an earlier da%e, and on thi~ point would make reference to.the prior decision of this Board in Smith 237/82 (Roberts) at p.7. The relevant authorities have been reviewed by this Board in .Lowman 13/82, (Saltman) wherein, after granting retroactivity beyond the normal 20-day period, the Board commented as follows: This is not to suggest that an employee who complains to a supervisor and even receives a sympathetic response can iignore the time limits for filing a grievance under'!Khe collective agreement. The case at hand is. an unusual one in which management became actively involved in the Grievor's claim and, by their efforts, kept the. claim alive over a long period of time. It is only in these unique circumstances that the Board has recognized an exception to the usual arbitral rule limiting the period of retroactive payment of compensation to the time for filing a grievance under the collective agreement. It is clear from the evidence before us that Management were in no sense actively involved in the Grievors' claim, whatever were the perceptions of the Grievors. It is also clear that whatever were the representations purportedly relied upon by the Grievors, the last of these took place in the summer of 1984, and no effort was made by any 'Grievor subsequent to 'that time to make" further enquiries of Management or to determine the progress of the matter. If principles of equity are to become determinative, then it would appear that the doctrine of Laches would be an appropriate answer to the Grievors' claims to retroactivity. This is really a case wherein there has been no active pursuit by either side but rather a simple acquiescence in the status quo. In the result, therefore, we would conclude that there is no basis to depart from the usual position of this Board with respect to the appropriate period of retroactivity. The 20-day rule should be appl~ied, and there is, therefore, no entitlement to retroactivity that would gi~e to the Grievors any claim during the period prior to the effective date of the Office Administration Group Job Evaluation Plan. In the cases before us, Mr. Auger testified that be first became aware of the 100 grievances that were filed in the ~.~us case when he first~ saw the Slone award in January of 1990. He stated that although he became aware of the results of the $altman award when he was reclassified and received retroactivity for the period provided in that award, he was not aware of why the class standard had been revised. That is, that it followed upon the ~randt award. It was only when he realJzed what had happened to the 100 grievors dealt with in the $1one award that he saw what he regarded as the unfairness in the situation and filed his 33 grievance. Mr. Auger acknowledged that he could have filed a grievance in 1983 if he had been aware that there was an issue concerr~zng the propriety of his classification. Hfs position was that it was simply a matter of fairness to treat him in the same way as the 100 grievors in the Slone case who he regarded to be performing the same work as he did during the period in dispute. There was no evidence of Mr. Auger ever having brought his grievance to the attention of management prior to his having filed it on January 30 of 1990, nor of any indication from management to him that he should hold off filing a' grievance until the matter with respect to the 100 grievors who filed their grievances ~n 1983 was settled. The facts relating to Mr. Jansson are somewhat different. He first learned of the filing of the grievances in the Angus case in late October or early November of 1.986 through a communication emanating from the Probations Officers.' Association in the northern Ontario catchment area. He stated th"at he did not grieve at that time because of statements made by a 'representative of management at a staff meeting held on November 22, 1986r in Timmins Ontario. Bruce Mii'ler, the then Provincial Director, was said to have informed those present that they were improperly classified and would be receiving some type of compensation. 34 As in the case of Mr. Auger, Mr. Jansson stated that he first realized that he would be not obtaining the same retroactivity as the grievors in the Angus case after the release of the Slone award. He stated that in late January of 1990 a colleague assigned to the North Bay office informed him of the Slone award and he then filed his grievance on February 2, 1990. In cross-examination Mr. Jansson stated that ~o the best of his recollection none of the employees at the meeting held on November 22, 1986 said anything. He also acknowledged that there was no indication from Mr. Miller that the employees were being asked to-delay filing grievances. Mr. Jansson also added that it was apparent that Mr. Miller was not entirely conversant with the matter and this appeared to be in some way related to the fact that the ~ grievances involved another ministry, Mr. Jansson was frank in acknowledging that the conclusions he arrived at were based on his view that the situation of the grievors in the An ug_u~ case were no different from those affecting him and that fairness dictated that they be treated in the same way. He was very forthcoming in his evidence and acknowledged that there was no indication to the employees from Mr. Miller that they would be receiving any retroactive compensation. He also stated that there was no attempt on his part to put the Ministry on notice that he had been improperly classified until such time as he filed his grievance. 35 On the facts of the cases before us we do not have such evidence as has been acted upon where there was an equity in favour of a grievor to depart from the twenty-day rule. That ts, we have neither the kind of evidence as was relied upon in the Hillma~ case: (1) relating to the duties and responsibilities carried out by the grievors as being identical to those being ca~-ried out by the grievors whose cases they were relying upon. (2) That the Grievors in the cases before us were working, as was the grievor in the Hillman case, side by side with the 'grievors whose cases he was relying upon. (3) That the employers were put on notice in the manner as was referred to in the Hi]lma_~ case. Nor do we have the kind of intervention by an employer as would now raise an estoppel permitting us to de,art from the twenty-day rule. It is not difficult to see how employees, who regard themselves as having performed exactly the same kind of work as the other employees who were successful in obtaining retroactivity to an earlfer period, would regard the result as being manifestly unfair. However, on the facts before us, and, given the position taken by the Employer, we are unable to find an equity in favour of the Grievors that would permit a departure from the twenty-day rule. Accordingly, the two grievances before us must be dismissed. During the course of the hearing, as above noted, counsel for the Employers, among his several arguments, asked us to decliae to hear the grievances because of a suggested presumption tha~ the 36 detav in filing the grievances would prejudice the Employers in presenting evidence in support of thei~ positions. No evidence was called on behalf of the Employers to establish actual prejudice. In the light of the basis for our decision, it is unnecessary for us to rule on the correctness of the Employers' submission .wzth respect to the presemption of prejudice. Counsel for the Employers also askad us not to follow the HiIlman case, arguing that it was manifestly incorrect, and therefore not subject to the rule in Blake, As we found the facts in the ~illman case to be distinguishable from those in the cases before us, it was unnecessary to decide this issue. Dated at Toronto th'is 14th day of September, 1992. M. Gorsky, Vice-Chairperson : "I Dissent" (dissent attached) " J, Carruthers, Member .... D. DaUgharty ,$~Membe r I must strongly disagree with the majority in thim award. On page 35 of the award, the Board gives three reasons for denying the grievances. I will address them in order. (t) no evidence" .... relating to the duties and responsibilities carried out by the grievers as being identical to those being carried out by the grievers whose cases they were relying The grievers stated at all material times they were classified as Probation Officers II (page 1 of the award). The 100 original grievers were classified at the Probation Officer II level. (page 2 - chronology of events) The classifications are the same. The employer offered no evidence showing~difference between the Probation Officer II classification. In my opinion, for their argument to succeed, evidence should have been offered showing a difference. Further, in July 1987, as a result Of the 100 grievances, ~ Probation Officer II'$ were given a new Class Standard, not just the 100 grievers. Clearly, not all Probation Officer II's were paraded before Brandt panel, yet the whole classification was changed. It is not open to the Employer to now muggest different Probation Officers might have been doing different work when the Employer created a new Class Standard for all of them. similarly, a_~ Probation Officer II's were re-classified on March 18, 198~. Again, how can the Employer say it may have been different work while reclassifying everyone to the same status? on February 28 1989, the Saltman award issues an interest arbitration increasing the salary of ~ Probation Officers II's back to July 29 1987. It would seem that the ~mployer takes no issue with all Probation Officer II's ~oing the same wor~ back a~ far as July 29 1987, but then no further. T~e employer's argument is not consistent with t_he pas= history of this classification. "that =he grievers in the cases before us were working, as wa~ t~e grievor~ in the KillmA~ case, side by side with the grievers whose cases he was relying upon." In my opinion, the fact that Hi!lman worked beside another grlevor was not the determining factor in =haC case. The H~ma~ award on "In this case, the emDIoyer was put on notice by the filing of the Tr~c~on grievances. Moreover, in this case all of =he employees eventually subject =o reclassification work for the same Minie=ry. In addition, the Truch°-~ grievors, and the grievor i~ t~s instant case, work in t~e same District. It can hardly.be said ~he Ministry was taken unaware by the instant grievance." It seems %o me the fact that Hiliman may have worked with an original grlevor was addition, 1 information to the fact that the employer was puc on notice, not the ~ecisinc factor. The Minist=ies do not function on an office by office basis. Once one employee i~ reclassified, thenali employee~ are reclassified. This is supported by the Hillman decision (page 2 & 3) and the instant case as previously mentioned. If, as the majority in thi~ case indicate, ~i!lman stands for the proposition that one of =he grlevors had :o work ~ide-by-side (which I say it doesn't) then a logical e~tension of that sward should ~e that employees doing the same Job whereve~ they may be should receive the same pay increase. To limit the pay Sncrease 'to someone working beside an original grievor would seem to say an employee working across the street would not fit in exactly so =herefore, he would not receive the pay raise. That cannot be wha: the ~illman decision intended. (3) "That the employees were put on notice' in the manner as was referred to in the ~lma~ case." In the M.~ll~an case there were 35 original grievore. If as in ~il~an, it was said the employee was put on notice by that filing, how can the employee in the instant case (a% least =he Ministry of Corrections) not be put on notice by the filing of 100 grievances? As in Hill~an, page 1t "it can hardly be said that ~he Ministry was taken unaware by the instant grievance. It knew that the classification of senior Construction Technicians in the northern region had been brough= into i~sue and i= knew that should these classifications be foun~ wal=ing, that e%ery Senior Construction Technician would have to be reclassified. It would defy logic, common sense and fairness to deny the q=ievance in this case..." That holds tru~ in this cass as well. In the case of Mr. Auger, the Ministry of Correctional Services knew there were 100 grievors comD!aining about their classification. It also knew that it the 100 were improperly classified, then ~ Probation Officer II's would have to be reclassified. It is very clear to me that the test of putting the employes on no=ice in =his case was met. In %he cass of Mr. Jansen for =he Ministl'y of Community and Social Services, I would say the ~ilman logic can be extended to include anothmr Ministry. The grimvor was at all times classified as a Probation Officer II, the very same classification that the 100 grievors were. He was reclas~tfis~ with them and paid retroa¢:ivity ~ack to July 1987. The 100 original grievors merely got more back pay. The Employer cannot now say hs was doing different work w~thou= providing evidence or.the difference. It is simply unfair for the employer to have people working the same job but receiving less pay. ~ In summary, I find that the grisvors did do the same work as the original lo0 grievors, given they were the same classification and qiven that =he employer offered no evidence to the =ontrary. I also feel that this cass falls squarely with Hli~man and given the ~k9 decision, this pwnel should follow ~ill~an and find for the grievors. '