HomeMy WebLinkAbout1991-1661.Waugh.93-02-02 :. r~.', .i,j* !::. ,,~" ,, '~'t' '-.; ::: ONTARIO EMFL 0 YEs DE LA COURONNE
· CROWN EMPL 0 YEES O E L 'ON TA RI O
BOARD DES GRIEFS
DUNDAS STREET WF~ST, SUITE 2100, ,TORONTO, ONTARIO, MSG [.Z8 TEL£PHOIVE/q-ELEPHO;VE. (4 ~6~ 326- [388
1661/91
IN THE ~TTER OF ~ ~IT~TION
Under
THE CRO~ EMP~YEES COLLECTI~ B~GAINING ACT
Before
~E ~RIEV~CE SETTLE~ BO~
BE~EN
OPSEU (Waugh)
Grlevor
The Cro~ in Right of Ontario
(Minist~ of Revenue)
. Employer
BEFOg: N. Dissanayake Vice-Chai~erson
M. Lyons Me. er
D. Clark Me. er
FOR THE N. Luczay
UNION Grievance Officer
Ontario Public Service Employees Union
FOR THE K. 'Cribbie
EMPLOYER Labour Relations officer
Ministry of Revenue
H~ARING April 24, 1992
AWAR_~D
This is a grievance by Mr. Neil Waugh, alleging that the
employer has failed to comply with the terms of a Memorandum
of Settlement. This Memorandum of Settlement resolved a large
number of grievances filed by individual employees and groups
of employees. The parties expressly agreed that this Board
had jurisdiction to entertain this grievance.
In Re Alani/ChristoDher (Finley) the Board reviews the
background to the settlement as follows:
The origins of this grievance date from t986.
Between 1986 and 1989 eight classification
grievances involving the reclassification of
positions from the Ministry of Revenue Tax Auditor
stream to the Ministry of Revenue Financial Officer
stream were filed by both individuals and groups.
During this period, the assignment of individual
grievors changed due to circumstances other than
the grievance procedure and further grievances were
filed so that the new situations would be
reflected. The Memorandum of Settlement dates
March ll, 1991, became an order of the Grievance
Settlement Board on April 26, 1991. Classification
of positions and retroactivity were important
aspects of this settlement/order.
It is common ground that this memorandum had the effect
of resolving two classification grievances that had been filed
by the grievor, and that the grievor was one of the many
grievors, who were signatory to the memorandum.
The text of the Memorandum of Settlement, which later
became an order of the Board reads:
The parties hereto agree, on a without prejudice or
precedent basis, to the following terms as full and
final settlement of the above captioned grievances.
1. The positions of Assessor (22-3102-44)
and Junior Auditor-Desk (22-3102-22) will
be reclassified to the Financial Officer
· 1 (atypical) level effective October 1,
I986.
2. The positions of Auditor-Desk (22-3102-
20) and Screener (22-3102-31) will be
reclassified to the Financial Officer 2
(atypical) level effective October 1,
1986.
3. All grievors affected by paragraphs 1 and
2 above will be reclassified as of
october l, 1986, if they occupied the
position on that date, or the date upon
which they first occupied the position
after october l, 1986.
4.a) Ail grievors affected by paragraphs 1, 2
and 3 above shall receive retroactive
salary in the Financial Officer Class
Series in accordance with current
Ministry practice subject to any final
decision of the Grievance Settlement
Board or the Courts regarding methodology
or payment of retroactive salary
established in the Alton et al decision.
b) In the event that the final decision in
the Alton et al case results in a "level
to level" calculation, the grievors
referred to in paragraphs 1, 2 and 3
above, will receive the difference
between the amount received pursuant to
paragraph 4A above -and the amount
resulting from the calculation by the
"level to level" methodology.
5.a) All 1986 grievors (Ahmed et al) still in
the classification of TaIII as of the
date of settlement shall receive $ 7,000
less required statutory deductions.
b) Ail grievors who have retired since the
filing of their original grievances in
October 1986 shall receive $ 7,000 less
required statutory deductions.
c) Any other grievors who were classified as
TAIII subsequent to October 1, 1986 shall
receive a lump sum less required
statutory deductions calculated on the
basis of $ 145 per month for every month
or part thereof subsequent to October 1,
1986 in which they were classified as a
TAIII~
d) All grievors classified as TAIII on the
date of this settlement shall be
reclassified to the classification
Financial Officer 4 (atypical) as of the
date of this settlement. It is
understood that these grievors will
undergo a training period of six months
from the effective date of settlement
during which the amount of field work
required in the job will increase
progressively from the present 30% to
70%. Further, it is agreed that those
grievors without credentials (CMA, CGA,
CA) will for the purposes of the
implementation of this settlement not
require credentials to do field work.
6. The grievors and O.P.S.E.U. agree to
immediately withdraw the above noted
grievances.
7. The terms of this settlement shall be
null and void in the event that thi~
Memorandum is not signed or authorised by
all of the grievors and O.P.S.E.U. on or
before November 30, 1990.
8. The parties agree that this Memorandum of
Settlement shall be issued as an Order of
the Grievance Settlement Board.
The present grievance stems from the employer's failure
to pay to the grievor the $ 145 per month payment under item
5(c) of the memorandum for the period April 30, 1990 to April
30, 1991.
5
The grievor is employed at the Corporate Tax Branch of
the Ministry in Oshawa. Since March 1988, his position was
classified as Tax Auditor 2. In May 1988 he grieved seeking
reclassification to Tax Auditor 3 retroactive to March, 1988.
Then in June 1989 he grieved seeking a reclassification to
Financial Officer 4. While these grievances were outstanding
the grievor obtained a promotion in June 1989 to a position
classified as Tax Auditor 3.
Effective April 30, 1990 the grievor obtained a
secondment assignment to an acting managerial position.
During this assignment which lasted till April 30, 1991, the
grievor was paid the~ rate applicable to the management
position in accordance with article 6.1.1 of the collective
agreement which reads:
Ax%i¢le 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 form 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.
On March 11, 1991 the grievor's bargaining unit position
which he had held at the time of his secondment was
6
reclassified from a Tax Auditor 3 to a Financial officer 4,
pursuant to the Memorandum of Settlement.
Given this scenario, if not for the fact that the grievor
undertook the acting assignment to the managerial position,
there can be no doubt that under item 5(c) of the settlement,
he would.have been entitled to be paid at the rate of $ 145
per month for the full period. However, the. employer made
that payment upto the time of his acting assignment, but not
for the period April 30, 1990 to April 30, i99i when he was on
the acting assignment.
The only witness to testify at the hearing was Mr.
Desmond Kirk, Supervisor of Labour Relations in the Personnel
Services Branch. He was involved in the negotiations that led
to the Memorandum in question. He testified that item 5(c)
was intended to deal with individuals doing..Tax Auditor 3
duties. When asked why the grievor was not paid under item
5(c) for the period of his acting assignment, Mr. Kirk replied
"Because he was not doing TA3 duties during his period of
secondment. We would say that during that Period he was not
classified as TA3, his classification was FA18 and he was paid
as such for that period."
We first turn to consider the language in the memorandum.
Under item 5(c) the $145 per month entitlement is said to
7
apply to "Any other grievors who were classified as TA3
subsequent to October 1, i986"~ Such a grievor is said to be
entitled to that payment "for every month or part thereof
subsequent to October 1, 1986 in which they were classified as'
TA3" o
The dispute stems from the calculation of the period of
entitlement. The employer claims that for the duration of his
acting assignment he was not classified as TA3. Indeed Mr.
Kirk took the position on the stand that for this period the
grievor's classification was FA18, a management
classification. The union's position is that while the
grievor was paid the rate applicable to the FA18
classification during the acting assignment,~he was never
appointed to that classification and that his classification
remained as TA3.
The employer made it no secret that at the root of this
dispute is its perception that payment of the $ 145 per month
to the grievor for the period of his acting assignment results
in a windfall to the grievor. Namely, that the grievor would
get the benefit of item 5(c) as well as the acting pay for a
managerial classification. There is no doubt that it is'this
apparent "double payment" that has caused the employer to
resist applying item 5(c) in full to the grievor.
8
Nevertheless, the Board's function is to give effect to
the intention of the parties as gleaned from the language they
used. The terms "position" and "classification" are well
known to the parties. They have used the term "positions" in
some provis ions in the memorandum and referred to
"classifications" in others. In item 5(c) if the parties
i~tended to limit the $ 145 payment to employees who were
performing the duties of TA3, it is reasonable to expect that
they would have used language to indicate that. For example,
they could have stated at the end of item 5(c) "for every
month ... in which they occupied a position classified as
TA3". Instead of referring to positions, the parties elected
to refer to classifications in item 5(c). It' is not
reasonable to assume that this choice of language is anything
other than intentional.
We cannot accept that for the duration the period of his
acting assignment, the grievor held a position classified in
the management hierarchy. We recognize that it is not
technically accurate to refer to "grievors who were classified
as", in that what is classified is the position and not the
incumbent. Nevertheless, in our experience, it ~s extremely
common for parties to refer to the classification of an
employee. For purposes of administering the collective
agreement, every employee in the classified service must hold
a position with a designated classification. Under the
9
collective agreement a.legal fiction operates during an acting
assignment. When an employee is temporarily assigned under
article 6.1.1 (as this grievor was) he is not appointed to a
position with a higher -classification. Rather, he is
"assigned temporarily to perform the duties of a position" in
that higher classification.. To reflect the performance of
duties in a higher classification he is paid at the higher
rate of pay, but f0r all purposes other than his pay rate his
classification remains unchanged. He certainly does not get'
the benefit of a reclassification to management. For
instance, he does not earn management compensation plan leave
credits or any other benefits applicable to the management
classification.
The employer's Ontario Manual of Administration in its
pay administration policy section recognizes the legal fiction
to which we have referred to above. It states that "An
employee assigned to a position in an acting capacity will be
paid after the expiry of ten working days, as i~ he/she were
aDDointed to the position". This clearly acknowledges that.
the employee is not in fact apDointed to the position.
In our view, what occurred here was that the parties
arrived at "a package deal" to resolve a large number of
grievances filed by numerous employees situated in similar but
not identical circumstances. Mr. Kirk agreed that item 5(c)
10
"was a formula agreed to by the parties to encourage the
grievors to deal with the settlement as a package" and that
for administrative convenience all grievors were to be paid at
the same rate regardless of any wage differences. It was
further indicated that before the terms were agreed to neither
the union or employer representatives inquired into the
individual grievors particular circumstances. We are
convinced that the grievor's own situation of being on an
acting management assignment never entered the contemplation
of the parties at the time. Despite Mr. Kirk's testimony that
the intention was to pay only those grievor's performing TA3
duties, he was unable to refer to anything anyone did or said
to manifest such an intention, which is not in conformity with
the language used. There is no evidence to suggest that the
parties intended such a result or even that they even
considered the particular circumstances.
One must keep in mind that we are dealing with a
memorandum of settlement, which was intended to resolve a
large number of complex grievances. The evidence is that the
parties arrived at "a package" without regard to the specific
circumstances of each grievor. In this type of settlement
process, it is almost inevitable that some grievors gain more
than others. Sometimes, a union may even compromise the full
rights of some grievors either to encourage the employer to
accept the package or to facilitate administrative
11
convenience. Thus, in this case all grievor's'received $ 145
per month regardless of actual wage rates. This would have
been more beneficial to some grievors than others, some with
the highest rates of wages may have been disadvantaged by the
agreement to the $ 145 payment rate. The reality is that that
is the nature of settlements.
The grievor benefitted from item 5(c) more than the other
grievors. This is a gratuitous benefit that flowed from the
parties' attempt to resolve a large number of individual
grievances through a single package deal. Sometimes employees
lose some of their entitlement in this type of deal. In this
particular case the grievor benefitted. We do not .find the
result to be offensive as the employer appears to.
Compromises of employee's and employer's rights is a necessary
and inevitable by-product of the resolution of a complex
~ituation.
We have no jurisdiction to in effect amend item (c) as it
applies to this particular grievor because of the apparent
windfall, any more than we would have jurisdiction to do so in
a situation where an employee complains that his full
entitlement had been compromised by the terms agreed to. That
is the agreement entered to and the parties must live with the
results.
12
In the result, we find that'the grievor was entitled to
the payment under item 5(c) for the period of his acting
assignment and direct that he be compensated to the extent of
his entitlement, together with interest. We remain seized in
the even the parties have difficulty implementing this award.
Dated this 2nd day of February 1993 at Hamilton, Ontario.
N. Dissanayake
V/ce-Chairperson
~ember . /
D. Clark
Member