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HomeMy WebLinkAbout1992-1158.Letourneau.95-08-17 (..~ ONTARIO EMPLOYES DE LA COURONNE ~;;: ;;a;~ J CROWN EMPLOYEES DE L'ONTARIO . 'I 1111 GRIEVANCE COMMISSION DE .. SETTLEMENT REGLEMENT BOARD -0 DES GRIEFS - 180 DUNDAS STREET \ll{EST SUITE'2100. TORONTO. ONTARIO, M5G lZ8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100; TORONTO (ONTARIO) M5G lZ8 FAqSIMILE /TELECOPIE (416) 326-1396 ) GSB # 11-58/92 OPSEU # 92F050 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before - THE GRIEVANCE SETTLEMENT' BOARD BETWEEN OPSEU (Letourneau) Grievor - and - The Crown in Right of ontario (Ministry of Health) ~ Employer BEFORE S stewart Vice-Chairperson FOR THE M. Doyle / GRIEVOR Counsel Ryder, Wright, Blair & Doyle Barristers & Solicitors FOR THE D Costen EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING r April 20, 1995 1.. ~ -- - ---- f ,'\'"",;' DECISION The grievance before me is dated April 21, 1989 and is filed "- on behalf of Mr. L.\ Letourneau The grievance claims that Mr. Letourneau's position is improperly classified as Ambulancei Officer 2 and the relief sought in the grievance includes a claim for retroactive pay. Counsel were able to agree to all of ~he relevant facts, , \ which were described to me as follows. 1 In 1986 Mr Letourneau began work as a Go Temp at Windsor Centre Ambulance Communications Centre (Windsor CACC) He began work as an ambulance dispatcher, classified as Radio Operator 2 l 2 In 1986, other employees in the Radio Operator 2 classification, throughout the province, 'filed classification grievances \ 3. In January, 1987, nine full-time classified employees working as ambulance dispatchers at the Windsor CACC filed classification grievances Seven of these employees were in the R02 classification and two were in the R03 classification, the latter two employees having ( additional supervisory duties. 4 On January 25, 1988, Mr. Letourneau was appointed to the classified service He continued to work in the R02 classification at the Windsor CACC 5. From that time he performed identical duties to the seven classified grievors who had grieved, often working side by side with them 6. At that time Mr Letourneau was aware of the fact that classification grievances had been filed by R02s It was his understanding that he would be part of any eventual settlement or reclassification so he did not grieve There was no assertion of any kind of ~epresentation to this effect made by a member of management to Mr Letourneau. 7. Immediate supervision was provided to the grievor - .- \' ~ ~ 2 by Mr. D Dunbar and Mr R Kennedy These persons are members of the bargaining unit and are the two persons In the, R03 classification referred to above 8. Mr. Letourneau filed a classification gri.evance on April 21, 1989 when he was advised that it may be necessary for him to do so in order for him to be "part of" the larger grievance or set of grievances 9 In February of 1992, Mr Letourneau as well as other persons in his classification were advised of a new rate which had been established pursuant to an award of a board of arbitration chaired by Mr B Keller 10 Mr Letourneau recei~ed a letter dated July 16, 1992 from Personnel Department advising that .the effective date of the implementation of the salary increase is August 13, 1990 and that issues relating to outstanding grievances dealing with retroactivity prior to August 13, 1990 werelstill unresolved and would be dealt with at a future date. 11- There was no' change to the duties of ambulance dispatchers in August of 1990 or in July of 1992.- \ 12. In November, 1992, each grievor was offered payment for retroactivity to 20 days prior to filing of his or her own grievance 13 All of the other grievors in windsor accepted that offer of retroactivity 20 days prior to the filing of their individual grievances. Mr Letourneau has not accepted that offer and claims entitlement to retroactivity extending back to January 25, 1988. ~ 14. There were five other grievors, employed elsewhere in the province, who filed grievances at the same time or after Mr. Letourneau filed his grievance These other grievors have accepted retroactivity limited to 20 days prior to the date of their grievances. There are two bases upon which the Employer asserts that the grievor's claim to retroactivity beyond twenty days prior to the filing of the grievance ought to be dismissed The Employer relies on what is described in smith, 237/81, (Roberts) as the "usual rule" that retroactivity is limited to the ,period v [ If ~ - 3 c prescribed by the Collective Agreement within which ~t was permissible for the grievor to file his grievance. The Employer also relies on the provisions of the August 1, 1993 local agreement made pursuant to the Social Contract Act, for the proposition that the grievance has b~en withdrawn ~ While an issue of whether a grievance has been withdrawn is the issue that would normally be dealt with at the outset of a decision, the circumstances here are somewhat unusual As I understand the Employer's position, it remains prepared to pay the grievor retroactivity to twenty days prior to the filing of his grievance, as it has in the case of all .other grievors, notwithstanding its position that the grievance is withdrawn I will therefore deal first with the i,.ssue of whether the "usual rule" applies, that is, whether retroactivity is properly limited , to twenty days prior to the date of t;he filing of the griev~nce. Ms. Doyle submitted that in simila~ circumstances the Board has ruled that retroactivity ought to extend beyond twenty days r prior to the filing of the grievance She referred me to Mini~trv of Transportation and OPSEU (Hillmahl 2007/89 (Kaplan), where at pages 11-13, the Board states as follows. In Smith 237/81 (Roberts), the Board said "The usual rule is that, barring the existence of circumstances which would make it inequitable for the Ministry to rely upon it, retroactivity will be limited to the period of time within which it was permissable 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 to twenty days In reaching this ) i ~ f' o 4 decision we do not find it necessary to deal directly with whether or not the twenty-day rule has any application to cl~ssification cases. We reach this result based on our finding 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 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 circumstances warrant. In this case, the employer was put on notice by the filing of the Truchon grievances. Moreover, in this case, all of the employees eventually subject to reclassification 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 knew 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 that some Senior Construct~on Technicians would receive reclassification, and presuI.Ilably better compensation, for their work, while their fellow employees, performing exactly the same duties at exactly the same time would not receive reclassification and compensation for the per10d in question Ms. Doyle argued that the facts of the case before me cannot be distinguished in principle from the facts in Hillman Accordingly; it was argued, the same result ought to follow and retroactivity extend beyond twenty days prior to the filing of Mr. Letourneau's grievance Mr Costen referred me to Ministrv of Community and Social Services and Ministry of Correcti~nal Services and OPSEU (Jansson) 1888/89, (Gorsky) in which it was determined in relation to certain classification grievances that retroactivity 1 r ) ~ 5 would not extend beyond 20 days prior to the filing of a grievance. In that case counsel for the Employer had urged the Board to conclude tnat the decision in Hillman was manifestly incorrect However, the Board distinguished Hillman from the case before it and therefore found it unnecessary to deal with that issue. The basis for distinction is s~t out at page 35 as follows: 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 T~at is, we h~ve neither the kind of evidence as was relied upon in the Hillman case: (1) relating to the duties and responsibilities carried 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 Hillman case Nor do we have the kind of intervention by an employer as would now raise an estoppel permitting us to depart from the twenty-day rule. The decision goes on to conclude as follows. 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 earlier period, would regard the result as manife~tly 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., An application for judicial review of the Board's decision in Jansson was considered by the Divisional Court in a decision dated April 19,1994 At pp 2-3, Mr Justice Adams writes as \.. "\ _. ~ IJ- 6 --.. follows: We are ali of the view that the Grievance Settlement Board did not err, nor did it decline jurisdiction in its sensitive consideration of the retroactivity I issue, having regard to the provisions of the collective agreement and labour ~elations policy. with respect to the l~tter issue, we note that s 19 OL the statute was nQtenacted in a labour relations vacuum, as s 18 clearly indicates As for the -- former issue, the panel of the Grievance Settlement Board, in these circumstances, reasonably approached the Board's earlier jurisprudence and this court ought to defer to such expert decision-making Generally, we find no fettering of jurisdiction within the meaning of the cases on which the applicant relies The Board, thoughtfully and from a reasonable labour relations point of view, applied its mind to the issues before it in a manner that cannot be characterized as declining jurisdiction, l)aving regard to the inherent procedural and labour relations realitie~ i of the contest before it. The submissions of union counsel, before this court, appeared to fly in the face of those realities For example, the argument that the re-classification in 1987/88 alone amounted to an admission by the employer of earlier job parity, taken to its logical conclusion, could mean any re-classification in relation to wage harmonization, amounts to an admission that such an adjustment should be made retroactive to the advent of all affected jobs In our view, the Board dealt with all of the submissions before it with a proper regard for its statutory mandate and the labour relations context in which that mandate must be interpreted. The Board neither erred in principle, nor exceeded its jurisdiction in making the decision that it did. Subsequent to the hearing before me, a decision of this Board dated June 5, 1995, Ministrv of Transportation & OPSEU (Kay et al), 93/88 etc (Barrett), WqS issued Mr Costen brought this decision to my attention by letter dated June 6, 1995 In that decision, at p 4, the Board refers to the second paragraph of the Divisional Court decision, reproduced supra, in relation to the "logical conclusion" of the Union's po~ition in ( \ [ ~'" J ~ 7 the Icase before it and states that Although the Jansson panel had distinguished Hillman , rather than finding it manifestly wrong, it appears that the Divisional Court went further and explicitly rejected the Union argument which was successful in Hillman , The Board unanimously dismissed the grievances before it, on the ) basis that the rationale for the Union's success in Hillman had been explicitly rejected by the Court in Jansson Mr. Costen urged me to corne to the same conclusion, e~ph9sizing the need to ensure consi~tency on this issue , I Ms Doyle responded by letter dated July 11, 1995, in which she emphasized that the decision in Jansson had distinguished Hillman and that the decision in Jansson had been upheld by the Divisional Court Ms Doyle characterized the comments of the ~ourt relied on in Kay as obiter and submitted that the decision in Hillman remains "good law" at the Grievance Settlement Board. ) Accepting that the Union is correct in its submission that the facts before me are indistinguishable in principle from the facts in Hillman, the real issue is whether Hillman, rather than Kav, ought to be followed As Mr Costen emphasized, consistency is a significant matter in relation to decisions of this Bdard. The parties need to know with. sbme certainty how to conduct their affairs The decision in Kay was issued subsequent to the decision in Hillman The decision in Kay is unanimous and ~ departed from Hillman on the basis of a decision o~ the Divisionai Court which dealt with the issue of retroactivity in ; - "j Ii 8 the context of a classification grievance Ms Doyle may be correct in her characterization of the comments of the Divisional . , Co~rt relied on in Kay as obiter Notwithstanding this matter, and while the Court clearly does not specifically address, the thorough and detail,ed reasoning in Hillman, the Union did not take issue with the ,rationale of the Kay decision in applying the comments of the Court Considering the importance of consistency it is my view that the Board's most recent, unananimous decision in Kay ought to be followed A9cordingly, I do not accept the Union's position that retroactivity ought to extend beyond twenty \ days prior to Mr Letourneau filing his grievance Given that the Employer is prepared to pay Mr Letourneau on this basis, ! which I have found to be the extent of its liability, there is no need to address the Employer's alternative submission in relation to the effect of the local agreement. I retain jurisdiction to 1 deal with any difficulties that the parties may experience in calculating monies owed to Mr. Letou.rneau or otherwise in implementing this award DATED at Toronto, this 17 day of August , 1995. ~~~J s L stewart - Vice-Chair I