HomeMy WebLinkAbout1977-0005.Dupuis.77-06-14IN THE MATTER OF AN ARBITRATION
Under The
CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between: Mr. Norman Dupuis
And
The Workmen's Compensation Board
Before: D. M. Beatty Chairman
E. J. Orsini Member
H. E. Weisbach Member
For the Grievor:
Mr. Grenville Jones, Canadian Union of
Public Employees
For the Employer:
Mr. J. G. Betts, Executive Director
The Workmen's Compensation Board
Toronto, Ontario
Hearings:
Februarv 17. 1977
May 19,-1977
Suite 405, 77 Bloor St. W.
Toronto, Ontario
;Y
2.
Mr. Norman Dupuis~is presently employed by the !:'orkmen's
Compensation Board in Thunder Bay as a Rehabilitation Counsellor 1.
In turn and by virtue of the provisions of Appendix A,
w;hich forms part of the collective agreement presently
governing the relations between the parties, as a Rehabilitation
Counsellor 1 Mr. Dupuis falls within salary level 72 of the salary
grid. More particularly and given that he is presently paid at the
rate of $12,993.34, it is a matter of record that he falls within the
second step of the Development Range of that salary level. In slotting
him to this particular point on its salary grid it is Mr. Dupuis'
claim that the employer has "violated article 18 as itrelates to
Schedule A of the Collective Agreement": More precisely and as he
describes in his memorandum of November 9, 1976 it is Mr. Dupuis'
claim that as:
a fully qualified and satisfactory employee having the
necessary knowledge and ability to deal with complex
rehabilitation problems tie should be) granted the
rate of pay and corresponding benefits owing to the
top of the position range of level 72; namely 15,344
and that consideration be qiven to the application
of the merit range (15,456 tom 17,696) as shown on
Schedule "A" page l-d.
The circumstances giving rise to the initial grievance are not,
in any material sense, in dispute between the parties and may therefore
be briefly described at the outset. From the record it is clear that
Mr. Dupuis commenced his employment on April 3, 1972 as a Rehabilitation
Counsellor 2. So classified Mr. Dupuis fell under Salary Grade 71 as
,
3.
described in Appendix A to the Collective Agreement. On October 3,
1972 he successfully completed his probationary period and was placed
on the employer's permanent staff. At that time and having gained
some exposure to the W.C.B. Hospital and Rehabilitation Centre in
Downsview and to the operation of the Head Office, Mr. Dupuis was
assigned to the employer's office in Tinnnins. Mr. Dupuis remained
in that office for almost three years until July 1, 1975 when he
requested a transfer to the office in Thunder Bay. In this latter office,
in which he is still located, Mr. Dupuis claimed that the nature of the
work he is called upon to perform is in all respects similar to that
which he encountered in the Timmins office.Indeed it was his evidence that
because he was the-sole representative of the employer in the Timnins area,
because his supervisor was located in Toronto,' and because of the unique
problems that flowed from the proximity of Tirnnins to the Province of
Quebec his work in Thunder Bay was in fact less demanding and less
complex than that which he encountered in his experience in Tiannins.
In any event shortly~after his transfer to the office in Thunder Bay,
and specifically on October 3, 1975, which was three years to the day
on which he was placed on the permanent staff, Mr. Dupuis was "transferred"
to the classification of Rehabilitation Officer 1. AS such and although
he received no increase in remuneration at the time, Mr. Dupuis was
henceforth classified under Salary Grade 72.
From the grievor's own evidence, from the performance.review
he last received on January 29, 1976 and from other memoranda and
testimonials filed with this Board, there can be no dispute that Mr.
Dupuis is an exceptional employee who has consistently performed in
an exemplary fashion. Thus, from his last performance appraisal in
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January 1976, it is a matter of record that in all aspects of his work,
his training and leadership ability, his organizational and scheduling
habits, and the quantity and quality of his output, his performance was
regarded by his immediate superior as being "excellent" and "above reproach".
Moreover, his evidence that he carried out his duties at an equally high level
during his tenure in Tinnnins is confirmed by the evidence of Mr. Urquhart who
conceded that Mr. Dupuis would not have been sent to that office unless he was
so qualified given that he was the sole Counsellor in the office, that his
closest supervisor was some four hundred miles away and that, in the absence
of any assistance by specialists employed by the Board in other regions of
the province, Mr. Dupuis would on occasion, be required to handle complex
cases on his own. In short and against all of the evidence before this Eoard
we are entirely satisfied that.Mr. Dupuis is, in the language of this agreement
a "fully qualified and satisfactory" Rehabilitation Counsellor 1.
So characterized, it was Mr. Dupuis' contention that he was entitled,
at the very least, to be paid in the "Position Range" of Salary Level 72. As
noted above that is the salary level to which, by virtue of Appendix A of the
agreement, the classification of Rehabilitation Officer 1 is assigned. In
advancing this claim Mr. Dupuis was referring specifically to Page l(a) of
Schedule A, the material portions of which provide:
SCREDULE "A**
SENIOR ADMINISTRATIVE SALARY SCALE
Effective October 3, 1975
DEVELOPMENT RANGE POSITION MERIT RANGE
Level 1 2 RANGE 1 2
72 12,320.-13,216. 13,328.-14,224. 14,336,;-15,344 .15,456.-16,464. 16,576.-17,696.
71 X,424.-12,208. 12,320.-13,216. 13,328.-14,224 14,336.-15,344. X,456.-16,464.
Note: The Position Range is the rate range for fully qualified and satisfactory employees.
i.
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5.
In resisting Mr. Dupuis' claim to be paid a salary which falls
within the position range of Salary Level 72, the employer did not at
any time challenge Mr. Dupuis' own or his supervisor's assessment of
his work performance or his abilities. Indeed and to the contrary it
was its position that since the signing of the first Collective
Agreement on July 14, 1976, it was precluded from critically assessing
the grievor's competence by means of a performance evaluation. More
specifically it was the employer's position that as a result of the
negotiations which led up to the signing of this agreement, the parties
had replaced the traditional merit review procedures by which employees,
on average, would be assured a certain percentage of merit pay,with
a. provision in the agreement which stipulated that an across-the-board
merit adjustment of three percent would be provided for all employees
regardless of their individual performances. That latter provision,
also appears in Schedule A and is set out on Page 46 of the agreement
in these terms:
SCHEDULE "A"
THE WORKMEN'S COMPENSATION BOARD, OUTARIO
SAMRY SCALES AND CLASSIFICATIONS IN THE BARGAINIATG UNIT
The Employer shall pay salaries in accordance with this Schedule "A"
and the Schedule shall apply to all employees in the classifications
listed herein.
All employees on staff on July 2, 1976 shall receive:
(a) a salary adjustment of 15% based on their salaries
in the Bargaining Unit since October 3, 1975
(b) a merit adjustment of 3% based on their salaries
in the Bargaining Unit since October 3, 1975,
providing this is within the newly adjusted sal?ry
range.
That is, according to the employer,paragraph (b) of Schedule A not only
grants a merit adjustment of 3% $0 all employees in the unit regardless
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of their individual performance, but and for purposes of this case,
more critically, it did so on the implicit understanding of the
parties that the employer would jettison its long standing practice
of allocating merit adjustments to its staff on the basis of an
annual assessment and evaluation of their individual performances. In
short in return for the across-the-board merit adjustment described
in paragraph (b), it was the employer's position that all individual
merit adjustments and the performance evaluations on which they were
premised had been abandoned. More specifically, and as applied to the
circumstances of Mr. Dupuis' case, it was the employer's position that the
three percent merit adjustment negotiated in paragraph (b) precluded and
foreclosed the employer from assessing Mr. Dupuis' individual performance so
as to determine whether as "a fully qualified and satisfactory employee” he
merited being placed in the position range of the Rehabilitation Counsellor
1 classification in Salary Level 72. Indeed and as Mr. Setts conceded in his
argument, it was the employer's position that paragraph (b) noted above super-
ceded and in fact rendered nugatory the Note that immediately follows the wage
schedules, and which stipulates that "the Position Range is the rate range for
fully qualified and satisfactory employees".
In our view this argument, which as noted is the sole basis on which
the employer has denied Mr. Dupuis' grievance, is as a matter of construction
and against the employer's own practices, wholly untenable. In the first
place and most obviously such an interpretation would require us to wholly
ignore words which the parties have clearly intended to include in their
agreement. Succinctly and in the absence of any allegation or mutual mistake,
such an assertion is completely at odds with and entirely offends one of the
more basic canons of construction which holds that:
. ..in constructing a collective agreement, it should be
presumed that all of the words used were intended to have
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some meaning. Moreover, it is to be presumed that the
parties do not intend the provisions of the collective
agreement to be in conflict.
Canadian Labour Arbitration, Topic 4:ZlOO
In our view, there is nothing in the express language of paragraph (b)
and the "Note" to the wage schedules which would suggest that those two
provisions were in any manner in conflict with each other. That is to
say and even assuming, as the employer argued, that following the
negotiation of paragraph (b) there would no longer be any assessments
of an employee's ind,ividual performance,for the purposes of dis-
tributing merit increases, that agreement is wholly independent of
and simply can not affect evaluations which may be effected for a
variety of other purposes, including as this Note implies, whether a
person should be placed in the position range of a particular clas-
sification. Put somewhat differently and in the vernacular of the
trade, the provisions of paragraph (b) and the Note to Appendix A
can be reconciled and can live together if the former is perceived
as pertaining to an employee's annual progression through the ranks of
a particular classificationwhile the latter refers to a distinct and
one time determination that is made whenever the employee attains some
basic level of proficiency and competence.
Indeed and as Mr. Betts conceded to us in his argument, the
employer itself has not regarded paragraph (b) of Appendix A as
foreclosing or precluding the evaluation or assessment of an
employee's performance for a variety of purposes which have nothing to
do with an annual merit adjustment. For example, he conceded that when
an employee has completed his probationary period some evaluation of his
qualifications and ability is made in order to determine whether he is
suitable to be placed on the permanent staff. As well, and more critically,
,.
>> a.
Mr. Betts also acknowledged that paragraph (b) of article 46 has not
been regarded by the employer as precluding or foreclosing it from
evaluating an employee's qualifications and performance in determining
whether he/she should be reclassified or promoted from a Rehabilitation
Counsellor 2 to a Rehabilitation Counsellor 1. Indeed, he conceded
that such an assessment must have been made of the grievor's performance
on October 3, 1975.when he was so reclassified.
Finally we would note that the employer's argument that paragraph
(b) of Appendix A supercedes and renders nugatory the provisions of the
Note, ignores the fact that when they intended to do so, these parties
were well able to delete pre-existing employer policies from the terms
of their first collective agreement. In that regard we would refer the
parties to the Note which appears on an internal document of the
employer (Exhibit 2), dated January 21, 1976 which describes the salary
levels and corresponding steps which existed prior to the signing of
the collective agreement and which was presented to the union during
the course of negotiations. In that document, in addition to the Note
stipulating that the Posi.tion Rate is the rate range for fully qualified
and satisfactory employees, there is also a second Note which describes
the purpose of the merit steps in the salary schedules. The fact the
parties saw fit to include in their agreement, almost verbatim,the Note
pertaining to the Position, Rateywhile simultaneously omitting any
reference to the %ote elaborating on the merit steps, in our view is a
.clear and unequivocal confirmation that the parties had every intention
that the Note pertaining to the position rate was to be an integral
and operative provision of their agreement. Put otherwise, had the
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9.
parties intended that the hate on the position rate was;against the
provisions of paragraph (b), to have no force or effect, they would
surely have done as they did with the Note on the merit Steps
and simply not have included any reference to it in their agreement.
In the result we have absolutely no doubt but that the Note
which appears at the bottom of the wage schedules in Appendix A of the
agreement accurately reflects the parties' intention as to when an
employee should be paid a salary which falls within position range.
TO use the language Of s.l7(2)(b) Of The Crown Employees Collective
Bargaining, that Uote provides the "governing principle or
standard" the parties have agreed to use in determining when a person
warrants being paid in the position range. In the result and against
our finding that Mr. Dupuis has in fact met that standard, it necessarily
.follows that he is entitled to be paid at a rate which falls within
the position range. That, and not some unilaterally promulgated time
period, is the sole standard against which employees must be assessed
for placement in and promotion to the position range of any particular
classification. Having satisfied us that he has met that governing
principle, it, follows his grievance must succeed.
In the result and against that finding, it remains only for this
Board to determine the point in time and the particular salary rate at
which Mr. Dupuis was entitled to be paid a salary whichfalls within the
positionrange. In that regard we would note the evidence of all of the
witnesses that the difference in duties and functions betweena Rehabilitation
Counsellor 2, and a Rehabilitation Counsellor 1 are more illusory than real. From
that evidence and particularly from the grievor's own testimony as to his
10.
relative experiences in Timmins and Thunder Bay, we are satisfied that
when he was reclassified in October of 1975 after his transfer to Thunder
Bay, he was at that time a "fully qualified and satisfactory" Rehabilitation
Counsellor 1. In any event at the very latest he would have attained that
standing by January 29, 1976, the date his supervisor rated him as
"excellent" and being "above reproach".
However and while we are satisfied that Mr. Dupuis was in fact
entitled to be paid within the position range of the Rehabilitation
Counsellor 1 at the time of his reclassification to that position on
October 3, 1975,0r at least by January 29, 1976,it does not follow that
this Board will or should award him compensation back to that date. To *
the contrary, in our view by failing to initiate his complaint until
October 19, 1976, Mr. Dupuis falls within the general principle adhered to
by this Board in assessing the damages to which.a~successful grievant is
entitled. Those principles, which we have indicated we will follow unless
there are extenuating or unusual circumstances, have been described in
these terms:
While it is, in our view, clear that the employer failed to
comply with the provisions of Article 10.3 throughout the period
from January 28, 1976 until July 12, 1976, we do not believe that
these employees, who initiated their complaint only on May 25, 1976,
may properly claim relief throughout that period. To the contrary,
and to hold othemise, 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 arbitration have consistently limited an employee's
right to claim damages for the breach of the agreement to the period
of time within which it was permissible to fi.le his grievance.
Re Union Gas Co. of Canada Ltd. (1972), 2 L.A.C. (2d) 45 (Weatherill).
Re Automatic Screw Machine Products Ltd. (1972), 23 L.A.C. 396
(Johnston). Re National Auto Radiative Manufacturing Co. (1967), 18
L.A.C. 326 (Palmer).
Re: Ontario Public Service Employees Union and The Ministry of the
Attorney General 71/76.
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11.
Moreover, the fact that at the time he was reclassified, neither a
collective agreement nor this Board was in existence does not,in our
view,serve to take Mr. Dupuis' circumstances out of.that overriding
principle. To the contrary at that time and indeed since the enactment
of s.l7(2)(b) of the Crown Employees Collective Bargaining Act S.O. 1972
c.67 and the Public Service Amendment Act S.O. 1972 c.96, Mr. Dupuis had
access to the Public Service Grievance Board whose jurisdiction was, in
such matters, identical to our own. In the result, applying the analyses
we have earlier articulated and against the provisions of Article 2
paragraph 5 of this agreement, we are of the opinion that Mr. Dupuis'
entitlement to a salary that falls within the position range for a
Rehabilitation Counsellor 1, would commence twenty days before his first
having raised the matter with his supervisor. Against the definition
of the word "days" that the parties have provided in article 2, we would
calculate that date to be September 21, 1976.
Turning finally to the.actual salary rate at which Mr. Dupuis
should be paid, we would acknowledge at the outset that we are incapable
of making such a calculation with the same precision. Clearly, to determine
exactly where in the position range or merit range of that classification
Mr. Dupuis should be placed would require much more evidence of Mr. Dupuis'
abilities, i,ncluding evidence as to the quality of his performance relative
to other Rehabilitation Counsellors,than was adduced at the hearing in
this case. Indeed, in the absence of any such evidence, we think it would
be both unfair and improper for us to conclude that he should be placed
in the merit range of his classification. That is not to suggest that in
fact he does not warrant being placed in that range. It is only to acknowledge
that the evidence which was adduced before this Board merely confirms that,
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against that standard set out in the Note, he is entitled to be placed in
the position range of his classification. Precisely where he should be
placed within that range can not, on the evidence before us, be identified
on any rational or logical basis Accordingly we would propose, in the
interests of fairness and compromise that he be placed at the mid point
of that range. Needless to say, should the parties be of the shared
opinion that Mr. Dupuis' performance is so exceptional as to warrant
being placed at a higher level, our compromise solution should not be taken
as precluding them from doing so.
In the result and for the reasons given, we are of the opinion
that Mr. Dupuis' grievance must succeed. Specifically, we would find
that as of September 21, 1976 Mr. Dupuis was entitled to be paid at the
rate of $14,835. The precise amount of compensation to which the grievor
will be entitled as a result of that conclusion is a simple matter of an
arithmetic calculation which we shall leave to the parties to settle. In
the unlikely event that there is any difficulty in the implementation of
this award, we shall remain seised of this grievance for a period of thirty
days following upon the release of this award.
Dated at Toronto this 14th day of June 1977.
D. M. Beatty
Chairman
I concur
E. J. Orsini
Member
I concur
H. E. Weisbach
Member