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Home My WebLink About1999-1384.Mehta.01-02-15 Order o NTARlO EMPUJYES DE LA COURONNE CROW"! EMPLOYEES DE L ,(}NTARlO GRIEVANCE COMMISSION DE l1li l1li SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE, (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILElTELECOPIE. (416) 326-1396 GSB #1384/99 OPSED#99F021 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Dmon (Mehta) Grievor - and - The Crown III RIght of Ontano (Mimsm of Finance) Employer BEFORE Owen V Gra, Vice ChaIr FOR THE Don Martln GRIEVOR Gnevance Officer Ontano PublIc ServIce Employees Dmon FOR THE Kann Rasmussen, Counsel EMPLOYER Legal ServIces Branch Management Board Secretanat HEARING February 8 2001 ORDER [1] When the gnevor was promoted from CorporatIOns Tax AudItor to Semor CorporatIOns Tax AudItor on November 2 1998 the employer adJusted hIS anm versary date for pay admmIstratIOn purposes He gneves that the adJustment was contrary to ArtIcles 7 1 2 and 7 1 3 of the collectIve agreement then m effect Those artIcles provIded 712 An employee who IS promoted shall reCeIve that rate of pay m the salary range of the new classIficatIOn whIch IS the next hIgher to hIS or her pr esent rate of pay except that: where such a change results m an mcrease of less than three per cent (3%) he or she shall reCeIve the next hIgher salary rate agam, whIch amount wIll be consIdered as a one-step mcrease, a promotIOnal mcrease shall not result m the employee's new sal ary rate exceedmg the maXImum of the new salary range except where permItted by salary note 713 ~There an employee: (a) at the maXImum rate of a salary range IS promoted, a new anm versary date IS establIshed based upon the date of promotIOn, (b) at a rate less than the maXImum m the salary range IS promoted and reCeIves a promotIOnal Increase greater than a one-step Increase a new annIVersary date based on the date of promotIOn IS establIshed, of one step or less, the eXIstmg anmversary date IS retamed. [2] The partIes have agreed on the followmg facts Agreed Statement of Facts m the GrIevance of Hemant Mehta, GSB # 1384/99 February 8 2001 1. At all relevant tImes Mr Mehta was a member of ()PSED covered by the CollectIve Agreements sIgned on August 30 1996 between Management Board of Cabmet and the OntarIO PublIc ServIce Employees Dmon. 2. Mr Mehta began wIth the MmIstry of Fmance as a CorporatIOns Tax AudItor m the classIficatIOn of FmancIal ()fficer 4 on May 5 1997 3. At hIS anmversary m May 1998 Mr Mehta advanced to the 3'rd step of the FmancIaI Officer 4 wage grId wIth pay of $1022 11 per week. 2 4. Mr Mehta was successful m a Job competItIOn, and on November 2 1998 he was promoted to the posItIon of Semor CorporatIOns Tax AudItor m the classIficatIOn of FmancIal ()fficer 5 5. At the tIme of Mr Mehta's promotIOn from F()4 to F()5 the salarv rate at the next step of hIS old classIficatIOn (F04) was $106903 per week. 6. Compared wIth hIS posItIOn on the FmancIal ()fficer 4 wage grId, the next hIgher rate of pav m the FmancIal ()fficer 5 wage grId at that tIme a; curred at step 2 wIth a pav of $1051 19 per week, an mcrease of less than 3% 7 In accordance wIth artIcle 7 1 2 of the CollectIve Agreement Mr Mehta began m hIS new posItIon as a FmancIaI ()fficer 5 at step 3 wIth a pav of $110564. 8. ~rhen he began work m the FmancIal Officer 5 posItIon, Mr Mehta's an mversarv date was changed from Mav to November [3] The umon S posItIOn may be sImply stated Smce the gnevor was not at the maXImum rate m hIS pre promotIOn posItIOn, paragraph (b) of 7 1 3 deter mmes the promotIOn S effect on hIS anmversary date Under that paragraph, hIS anmversary date IS to be adJusted only If hIS promotIOnal mcrease was "greater than a one step mcrease The gnevor's promotIOnal mcrease was the result of applymg the prOVISIOn m the first bullet pomt under ArtIcle 7 1 2 That prOVISIOn says that ItS result "WIll be consIdered as a one step mcrease Accordmgly the gnevor's promotIOnal mcrease was not "greater than a one step mcrease and hIS anmversary date should not have been adJusted [4] As the umon understands It, the employer rehed on the followmg portIOn of ItS Manual of AdmmIstratIOn, and partIcularly the emphasIzed paragraph, to conclude that the gnevor's promotIOnal mcrease was "greater than a one step Increase DefimtIOn. PromotIOn PromotIOn occurs when the mcumbent of a classIfied posItIon IS assIgned to another posItIon m a class wIth a hIgher maXImum salary than the class of hIS former posItIon. Salary Treatment: EffectIve January 28 1976 an employee who IS promoted shall reCeIve that rate of pay m the salary range of the new classIfi catIon whIch Is the next hIgher to hIS present rate of pay ex cept that: where such a change results m an mcrease of less than 3% he shall reCeIve the next hIgher salary rate agam, whIch amount 3 shall be consIdered as a one step mcrease a promotIOnal mcrease shall not result m the emplovee's new salarv rate exceedmg the maXImum of the new salarv range except where permItted bv salarv note 1 EffectIve 4pn11, 1978 a rate ofpav, resllltl.ng from promotwn, whIch IS less than the Sllm of the next hl.gher rate In the former salarv range plllS 300 shall be consIdered a one step Increase. DetermIna hon ~There an emplovee. of AnnIVersarv a) at the maXImum rate of a salarv range IS promoted. a new Date. anmversarv date IS establIshed based upon the date of promotIOn, b) at a rate less than the maXImum of a salarv range IS pro- moted and he reCeIves a promotIOnal Increase greater than a one step Increase a new annIVersarv date IS esta blIshed based upon date of prom otIOn, of one step or less the eXIstIng annIVersarv date IS re- tamed. The umon takes the posItIOn that whatever the emphasIzed passage may mean, It does not appear m the collectIve agreement and does not alter the employer's oblIgatIOns under that collectIve agreement [5] The employer proposes to argue among other thmgs, that the gnevor's anmversary date was adJusted m accordance wIth the prOVISIOns of ItS Manual of AdmmIstratIOn, that It has always applIed those prOVISIOns wIthout complamt by the umon, and that the umon IS therefore estopped from allegmg that the collec tIve agreement means or reqUIres somethmg mconsIstent wIth those prOVISIOns [6] Employer counsel was asked whether she was seekmg to mtroduce eVI dence beyond what appeared m the agreed statement of fact The nature of a claIm of estoppel by sIlence was dIscussed Counsel was asked whether she had eVIdence to show for example that pnor to the negotIatIOn of the collectIve agreement m effect at the tIme of the promotIOn there had been an occaSIOn or occaSIOns known to the umon when the employer's applIcatIOn of the prOVISIOns of ItS Manual of AdmImstratIOn had had a result mconsIstent wIth the umon s mterpretatIOn of the predecessors of ArtIcles 7 1 2 and 7 1 3 In response counsel for the employer sought an adJournment m order to seek out eVIdence m support of the employer's claIms concermng ItS past practIce and the effect of that prac 4 tIce on the correctness or enforceabIlIty of the umon s mterpretatIOn of ArtIcles 7 1 2 and 7 1 3 On bemg assured that he would receIve partIculars of the em ployer's claIm before the hearmg resumed and that a umon gnevance on thIS IS sue could If the umon chose be Jomed wIth thIS one the umon s representatIve consented to the requested adJournment [7] The partIes agreed on the followmg tImetable for delIvery of partIculars a) The employer shall delIver to the umon wntten partIculars, settmg out any allegatIOns of fact (other than facts on whIch the partIes have agreed) on whIch It proposes to rely m thIS matter by the close of busmess Monday Apnl16 2001 b) The umon shall delIver to the employer wntten partIculars statmg whIch of the employer's allegatIOns It agrees WIth and whIch of the employer's allegatIOns It dIsagrees wIth and settmg out any allegatIOns of fact on whIch It proposes to rely m response to the employer's aIle gatIOns, by the close of bus mess Monday June 11 2001 The partIes are hereby ordered to delIver partIculars m accordance wIth thIS tImetable [8] I note the partIes agreement that If the umon files a umon gnevance raIS mg Issues sImIlar to the Issues m thIS mdIvIdual gnevance that gnevance IS to be heard together wIth thIS one The hearmg of thIS gnevance stands adJourned to Thursday September 6 2001 Dated at Toronto thIS 15th day of February 2001 __rI Owen V Gray Vice ChaIr 5