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HomeMy WebLinkAbout1991-2086.Vandenheuvel et al.92-05-07180 DUNDA~ STRE~ wEST, ~ITE ~1~, TO~ONTO, ONTAR~ M5G 1Z~ I TELEPhOnE/TELEPhONE: 2086/9~, 2087/9[, 2089/91, 2090/91 IN T~E ~TT~R OF ~ ~IT~TION Onde~ THE CRO~ ~MP~YE~B COL~CTI~ B~GAINING ~CT Before THE GR~EV~CE SETTLE~ BE~EN OPS~ (Vand~nheuvol ~rievor The Croon in Right of Ontario (Min.ist~ of .the Environment) . Employer T. · Browes-'Bugden Me~er D. Clark Me~er FOR THE R. Davis , GRIEVOR Counsel Koskie & Minsky Barristers & Solicitors FOR THB M. Farson EMPLOYER Counsel Fraser & Beatty Barristers & Solicitors April 3, 1992 INTERIM DECISION These five grievances brought by abatement officers in the Sarnia district office of the Ministry of the Environment involve a claim for retroactive stand-by pay. At the commencement of this hearing, the Employer made a' preliminary objection that this Board ought not to entertain these griew~nces 'to the extent that they seek a remedy retroactive, in some cases to a point as far back in time as 1986. It is the Employer's position that the Grievors may grieve only on the basis of the instructions that were in place at the time that the grie'vances were filed, and it is urged upon us that the Employer ought not to be put to defending its historical practices. It is the Employer's posit'ion that as of September 1991, new instructions were given relatinq to stand-by and on-call hours, and that this Board ought not to 100k at the circumstances that pre-date the new instructions. It was agreed that the grievances were of the continuing kind, and the argument on this preliminary motion turned on the .application of the 20 day rule at Article 27 of the Collective Agreement. In effect, the Employer has sought an order that~the Board limit the scope of the remedy before hearing the merits of the grievances, in support of its motion, the Employer called the evidence of Christopher Hutt, one of the Grievors, and of Wayne Wager, a member of management of the Sarnia district office. Mr. Hutt ·testified that slnce the beginning of the Emergency Response Program, the Grievors treated all calls as if their attendance was·immediately requiredlregardless, of whether the call came during a stand-by period or an on-call Period. This was attributed to the Grievors' sense of p~ofessional duty and the inherent nature of the work being done And there is no reason to dispute that this was at least one of the motivating factors inducing the Grievors to perform at the llevel that they did. It is also undisputed that t~e Grievors knew from the start that while they were.treating all Calls in the same fashion, they were being paid at a·different rate ~or their stand-by and~on- call hours. It was the evidence of Mrl Hurt that the reasons that he never grieved were that he felt that! the compensation package was good and also that he never thought about it; the Grievors ne~er 'questioned the necessity of distinguishing the type of response that was required of them whil~ on call from the type of response required While on stand-by. As far as the Grievors were concerned, there was a job to be' done ~nd the nature of' the job demanded that they attend forthwith uDo~ being called. For these reasons, the Employer·argues that the G~levors knew all along that they had caUse·to complain but did not b~cauSe, being content with the compensation package, they had no m~tive to do so. 3 While it is rather tempting to accept this proposition as far as it goes, I do not believe that it goes far enough, for there are two components to the complaint: there must not only b~ acts on the part of the Grievors of attending immediately to callS~when called out during 0nZcall hours; there must also be a corresponding requirement or expectation on the~part of the Employer that the Grievors do so. Evidence of the second component Was lacking before us on this preliminary motion. While it may be that the Grievors were over-performing, it may or may not be the case-that they were being asked to do so, and in the absence of evidence that they were so required, it is difficult to conclude that the Grievors all along knew that they had cause to grieve. The triggering event to. start the 20 day time period running is the onset'of a subjective.belief (v. The Oueen in Riqht of Ontario as represented by the Ministry of Correctional Services v. Ontario Public Service Employees Union and the Grievance ~ettlement Board, 74 O.R. (2d), 700; Div. Ct.) that the Grievor has a grievance. As this preliminary motion is 'brought bY .the Employer, it bears, the burden of demonstrating that the Grievors had such a subjective.belief that they had a grievance and sat upon their rights, thus disentitling themselves to retroactive relief. .In my view, the subjective belief must be based upon facts which, taken.objectively, constitute the grounds for a grievance. In short, to establish that the Grievors hmve dis~ntitled themselves 4 to retroactive relief'by reason of the application of Article 27 of the Collective Agreement, the Employer must, in my'view, demonstrate that it violated.the Collective Agreement and thg~ the Grievors held the belief that the Employer did so at a rime'pre- dating 20 days prior to the grievance. In the CircumStances, based on the evidence we have received, I am of the view that the Employer has not met this burden in that it has not shown that the Employer required or expected the Grievors to respond to calls while on-call in exactly the same fashion' as they were expected to do so while on stand-by. I hasten to add that this observation is based only oK the evidence receiued thus far and ought not to be taken as a reflection of what the finding may be on the merits after all of the evidence is in. In bringing this type of preliminary motion, the Employer of course puts itself in an unenviable position. In order t° defeat the Grievors' claim to retroactive remedy, the Employer must establish that the Griev°rs knew that they had a cause to complgin and refrained from acting upon it. In order to establish that ~he Grievors had a belief that they had a cause to complain,· the Employer in effect has to demonstrate that there was a cause to complain. No doubt in the interests of refraining from making out the Grievors' case on the merits, the Employer has also refrained from 'leading all the evidence .necessary to defeat the Grievors' claim to retroactive remedy. While it may be that in the 5 final result the Grievors may be unable to show cause why the 20 day rule ought not to apply, I cannot conclude, at this point in the proceeding and on the evidence before us, that the Grievors are barred from seeking retroactive relief if, on the merits, they succeed in the grievance. The preliminary motion will accordingly be dismissed and the grievance will proceed on its merits. DATED this ?th day of May, 1992.