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HomeMy WebLinkAbout1978-0170.Wilson.80-11-07IN THE MATTER OF AN ARBITRATION Under The Between: c Before: CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE~GRIEVANCE SETTLENENT BOARD Mr. R. Wilson And The Crown in Right of Ontario Ministry of Correctional Services Professor K. P. Swan Vice-Chairman Mr. A. M. McCuaig ~+lember Mr. R. Cochrane Member For the Grievor: Mr. G. Richards Grievance Officer Ontario Public Service Employees Union For the Employer: Mr. J. Benedict, Manager Human Resources Management Ministry of Correctional Services Hearins: October 28th, 1080 - 2 - This grievance falls to be decided on an agreed.statement of facts, which is as follows: 1. 2. c 3. 4. Mr. Wilson was employed at the Mimic0 Correctional Centre and Correctional Officer 3 was his regular or normal classification. Mr. Wilson (C.0.3) was temporarily assigned to the position Shift. Supervisor (OCR-15) from June 22 to July 16, 1978, for a total of 19 days. During this time he temporarily replaced Mr. Quinn (Shift Supervisor OCR-15) who, in turn, was temporarily replacing Mr. Aird (Assistant Superintendent) who was on vacation. Mr. Wilson was temporarily assigned Tao the position Shift Supervisor (OCR-15) from July 17 to July 28, 1978 for a total of ten days. mring this time he temporarily replaced Mr. Dougdeen (Shift Supervisor OCR-15) who, in turn. was temporarily replacing Mr. Stone (Senior Assistant Superintendent) who was on vacation. fir. Wilson was advised prior to assuming the duties of Shift Supervisor that he would not be paid.for the temporary assignments. In respect of paragraph 4, it was common ground that nothing in either party's case would actually turn upon any "advice" which may have been given. The only relevant provisions of the collective agreement here applicable, the 1978-79 Working Conditions agreement, are those of --- -3- Article 6, which deals with temporary assignment situations as follows: ARTICLE 6 - TEMPORARY ASSIGIYMENTS 6.1 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 ten (101 consecutive working days he shall be paid acting pay from the day he commenced to perform the duties of the higher classification in accordance with the next highest rate,& the higher classification provided that such acting pay shall not be less than three percent (3%) above his ~current rate. 6.2 Whex an employee is temporarily assigned to the duties and responsibilities of a position in a classification with a lower salary maximum where there is not work reasonably available for him in the position from which he was assigned, he shall be paid the lower ap$licable classificatioh rate to which he was assigned, after the expiration of ten (10) consecutive working days in such lower classification. 6.3 When an employee is temporarily assigned to the duties and responsibilities bf,a position in a classification with a lower maximum salary where there is work reasonably available for him in the position from which he was assigned, he shall continue to be paid at the rate applicable to the classification.%om which he was assigned. 6.4 This Article shall not apply to temporary assignments where an employee is temporarily assigned to perform the duties and responsibilities of another employee who is on vacation. 6.5 Where an employee is temporarily assigned to perform the duties and responsibilities of a position.not covered by this Collective Agreemenf, he shall retain his rights and obligations under the Collective Agreement. -4- The parties agreed that, based on the stipulated facts, Clause 6.1 would apply to this matter since the OCR-15 position had a higher maximum salary and each temporary assignment 'was for more than ten consecutive working days. The dispute between them revolved around the application of clause 6.4 to oust the provisions of clause 6.1. The Union submission is that clause 6.4 ought not to apply, since the griever. was not replacing an employee on vacation but an employee who was absent from his own duties because he was replacing someone on vacation. The Employer responds that all temporary assignments resulting from a vacation absence would be caught by clause 6.4. c Article 6 has previously been the subject of deliberation by a panel of this Board chaired by Professor Adams in me Bisaillon and. Beauchamp and Ministry of the Environment, 130/77, but the decision deals mostly with the impact of clause 6.5, a matter not here in dispute. It appears from the face of the award in that case that the appointments there at issue were made directly to replace a person absent on vacation; certainly that is the basis on which the Board deals with the argument of the parties and formulates its conclusions. It therefore appears that the case of an employee whose temporary appointment is to cover someone's position when that person is assigned to replace a vacationing third, person is before us as a matter of first impression. Without rehearsing the Union's argument, it is clear that the plain unadorned language of clause 6.4 clearly supports the Union case. For that clause to prevent the operation of the Article, the employee concerned must be temporarily assigned "to perform the duties -5- and responsibilities of another employee who is on vacation." That was not the case here. Neither of the two employees whose duties the grievor performed were on vacation, although another employee farther up the management structure was. On the face of the clause, it would appear that the Union must succeed. Against this very strong argument based on the plain meaning of the clause, the Employer advances two positions. First, it is argued that the use of the plural on the word "assignments" contemplates that a series of temporary assignments can arise from only one vacation. With respect, this is a dramatic inference from the use of a grammatical form which is perfectly consistent with the plain meaning of the words following which we have found above. Second, the Employer argues that an absurd result would be produced if, in a series of temporary assignments upward to replace a senior person on vacation, the only person who would not be paid at a higher rate would be the person assigned to do the vacationer's job itself, the most senior and responsible temporary assignment of the entire series. We think that this is an unusual result, and perhaps even one which the parties may wish to modify. But it does not appear to us to be "absurd", as that concept has legal meaning. It does not make the clause unworkable, or totally devoid of content, or unduly harsh and oppressive, to the point where the presumption that parties to a collective agreement intend the normal meaning of the words they use to describe their bargain can be rebutted by a finding that.no reasonable parties could have intended such a result. It appears to us that the language was probably chosen without advertence to a situation like the present. Purposive interpretation techniques may -6- sometimes "fill in the gaps" of a collective agreement, but they may not be used to amend the actual language so as to produce a result which the Board might consider more in accord with comon sense. An authoritative statement to the same effect is found in Re Int'l Brotherhood of Bdilermakers and Howden & Persons (Canada) Ltd. /1970), 21 L.A.C. 177 (Weiler) at pages 180-81: Though the arbitrator is not confined to an overly literalistic 0~ legalistic reading of contract language, he must base his decision on the sense 01 purpose of the original understanding of the parties, as reflected in the language they have used. c He cannot override the meaning which he finds they have agreed to, and thereby deprive one party of the rights to which he is entitled, simply because he feels that the exercise of these rights works undue hardship on the other side and thus, perhaps, should not have bS,en claimed in the circumstances. In our view, therefore, the plain meaning of the words used must prevail. One other argument asserted by the Employer, but not fully developed, was based on the similar but not identical provisions Of 0.Reg.749, subsection 3(Z), (3) and 4. In our view, this argument is of little value. The regulation in question is promulgated under The Public Service Act, R.S.O. 1970, C. 386 as amended, SeCtiOn 29(x) of which specifically deals with the relation of collective agreement provisions and regulations and provides that the former prevails to the extent there may be conflict. As a result, we cannot see how the -7- regulation can even assist as an interpretation tool. As a result, the grievance is allowed, and the grievor is entitled to be paid at the appropriate rate under Clause 6.1 for the periods in question: The parties have indicated that they can resolve the quantum of damages involved, but in the event of difficulty we shall remain seized of that issue to resolve it if necessary. Dated at Toronto, Ontario this 7th day of November, 19&O K. P. Swan, Vice-Chairman I concur A. M. McCuaig, Member I concur R. Cochrane, Member