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HomeMy WebLinkAbout1981-0237.Smith.85-03-05:..,. ,~ ’ GRIEVANCE I XWbEMENT ._ ,I. Between: I IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Before: For the Grievor: For the Employer: Hearings: OPSEU (Stephen C. Smith) Grievor - and - The Crown in Right of Ontario (Ministry of Community and Social Services) Employer R. J. Roberts Vice Chairman F. D. Collom Member H. Roberts .-Member N. A. Luczay Grievance Officer Ontario Public Service Employees Union C. H. Slater Counsel Legal Services Branch Ministry of Community and Social Services June 21, 1984 August 27, 1984 December 4, 1984 DECISION This is a case which has been around for quite some time. The grievance in this matter was filed on November 21, 1980. Originally, a panel.of the Grievance Settlement Board heard this grievance on April 28, 1982.. This panel dismissed the grievance; . however, on November 24, 1983, the Divisional Court quashed .this award and remitted the matter to the Board to be considered onits merits. The merits of the grievance relate to a claim by the grievor ~- that he ought to have beenretroactively reclassified to Social Worker II, effective July 1, 1978 instead of July 1, 1980, when this change&".' ( took place. For reasons which follow, the grievance is dismissed. The facts tended to indicate that for,a considerable period of time in the 1970's the Ministry pursued a policy of credentialism under which.it happened that persons performing the same work were paid differential rates of pay depending upon their credentials. On July 1, 19!8, when the grievor was reclassified to the level of Rehabilitation Dfficer 11 K the grievor found himself in one of these positions. Apparently, he was perform~ing the same work.as persons classified in the Social Worker II classification, but was' L paid less. At the time, the wage differential apparently was based upon a requirement for a higher educational level for persons in the Social Worker II classification. When he became a, Rehabilitation Officer II, the griever was well aware of this differential in treatment and, like many of his colleagues;he considered it to be unfair. Even before July 1, 1978, he complained about this to his Supervisor, Ms. C. Martin. -3- MS. Martin, who no longer was with the Ministry at the time she testified, stated that even while the grievor was a Rehabilitation Officer I, he expressed dissatisfaction with his rate of pay. He was expected to do ' the same job as Social Worker II's who were paid at a significantly higher level. He wanted some recognition of that. According to Ms. Martin it was in response to these expressions of - dissatisfaction that she attempted--successfully--to gain approval from the Ministry to move the grievor to the level of Rehabilitation * Officer 11 ahead-of the usual schedule. Prior to this. time, two Rehabilitation Worker II's who were employed in a different facility in another city initiated grievances raising the same complaint. Word of.these grievances rapidly spread throughout the Ministry. In fact, it seems that the Union made some efforts to advise the 75 Rehabilitation Worker II's who were employed by the Ministry at that time that they ought to file similar grievances..in order to protect their rights. There .~. was no evidence, however, to indicate that the grievor became aware of these efforts of the Union. Ultimately, 10 other Rehabilitation ( Korker II's filed similar grievances. Acccrding to Ms. Martin, from time to time the grievor would discuss with her on an informal basis the injustice in the differential rates of pay. She stated that he would say things like "this reilly ought to be dealt with." Ms. Martin apparently agreed with the grievor. She said she believed that he ought to be paid the same, and that she understood that the matter was already . . ii -‘l- being grieved. Ms. Marti!; said that she-also advised the griever that whatever ruling came down, it would be provided across the system, because historically it always was. Part of her response to his suggestion that something ought to be done, however, was that she was not in a position to tell him to do something, that there were choices that he could make. In his testimony, the grievor stated that based upon US. Martin's general comment to him that historically settlements r. were applied on a general basis, he believed that whatever relief ;; the 12 .grievors got, he also would get. At the same time, the grievor agreed that at no time wasthe matter of retroactive pay discussed with Ms. Martin. He said ,that retroactive pay was not an issue until he heard of the settlement of the grievances. The grievor further testified that he never talked to a Shop Steward. He said that he did not grieve because he believed his grievance would.be repetitious. He stated that there already were 12 grievances, according to Ms. Martin, and it seemed to him, on his understanding, that to add his would be superfluous. As it happened, the 12 grievances never went to arbitration. In the first part of October,, 1980, they were settled. pursuant to this settlement, the 12 grievers were shifted,,into the classification of Social Worker XI, effective as of 20 days prior to the date upon which each individual grievance was filed. It,also was agreed that the remaining Rehabilitation Officer II's would be shifted into the classification of Social Worker 11. In their case, however, -5- retroactivity was limited to a three-month period. This made the effective date of the stiift July 1, 1980. When the grievor was advised that he would be shifted into the Social Worker II classification, effective July 1, 1980, he was angry. He considered this to be unfair. Recalling what MS. Martin had stated earlier, that whatever ruling came ,down, it would be provided across the system, he considered that this should have applied as we;l. to the arrangements iegarding retroactivity, and that if this had been done, he would have received retroactivity to at least July 1, 1978, the date upon which he became a Rehabilitation Officer II and by which Ms. Martin had notice of his dissatisfaction with the disparity in wage rates for the same work. Qn November 21, 1980, he filed the grievance leading to the present proceeding. At the hearing, the Union submitted that in classification cases, the'usual arbitral rule regarding retroactive payment for continuing breaches, which in the case of this Collective Agreement ( would limit retroactivity to 20 days before the date of filing of the grievance, does not apply. Several cases were cited in support of this proposition; however, upon review, they did not seem to be capable of supporting any such wide rule. In fact, they seemed to be confined to their own peculiar circumstances. For example, in Re Schmidt 6 Ministry of Environment, G.S.B. S/76 (Beattyl, the grievor was prevented from grieving until the relevant Class series iias introduced and made retroactive by the Ministry. In Re .-- Parisc and Ministry of the Attorney-General, G.S.B. 23@/83 (Roberts), --.- ,, 4 ' 'I - G - . the Board merely corrected an error that the Ministry had made in selecting an appropriate retroactive date for a new classification. Neither of these cases involved the Board in rejecting on some general basis the usual rule.regarding retroactive payment for continuing breaches of a collective agreement. The usual rule is that, barring the eXiStem Of Circ~stance- which would make it inequitable for the Minist'ry to rely upon it, retroactivity will be limited to the period of time within which *- it was permissible for the grievor to file his grievance. In the case of.this Collective Agreement, that period is 20 days prior to .the,day upon which the grievance actually was filed. See' Re dPSEU I : and Ministry of the Attorney-General, G.S.B. 7i/76, in which the Board stated: "While it is, in our view, clear *et the -=Pdoyer failed to comply~with the. provi'sionr of Article 10.3 throt,ghont the period from Juruzuy 28, 1976 until July 12;1976, we do hot believe that these emplOyees who initiated their complaint only on .yay 25, 1976, my PX'PrlY cf.%h relief throughout t>et period: TO the cmkery, and to hold otherdise, would be to improprly c penelize'.the emplcyer for the bread Of a~ agreement of which it YZS not zv2re. Thus. where es here, the breach of the .?greernt is in the nature of a CO3~~dng One, bards Of arbitration have coasistently linited an emp~.+~~*~ right to claim dzages for the bread Of the agreemnt to the period of tira vithzn which it rzs.perr<ssible to file his g:ievutce. .J?er Union cr.5 CO. of Cznac'a Ltd. (1972). 2 L.A.C. (2.3) 45 Weath-rill). Re: Autonrtic screw I!ach>nne Products Ltd.(1972), 23 L.A.,-. 396 l.7oh.s~on). Re: Ilacional hut.3 Radictive t!!mcfactuzino>. (19671, 18 L.A.C. 326 (Pzlrer)-. - 7 - There was nothing in the present case to indicate that classification cases were possessed of such peculiar characteristics as to render inapplicable this general rule. 1n spite of this, it was suggested in the submissions of the Union that for whatever reason, the Board refused to apply the - rule in Re Hooper and Hinistry of Government 'Services, G.S.B. 47/77 (Swan), and opted instead for retroactivity to the date upon which '. the grievor made known to management his "complaint" regardless of whether it was in the form of a grievance. Upon review, however, it does not appear that the case in question is at all inconsistent with what already has been said. In that case, the circumstances were such as to make it inequitable for the r;(inistry to rely upon the rule. There, the Ministry took unilateral action in response to the grievor's complaint which might have resulted in the reclassificatic that he sought. It was only when the Ministry made known that it would refuse his request that the grievor realized he would have to use the grievance procedure. Because of this, the responsibility i.,. for the delay was that of the Ministry and, as such, could not equitably be laid to the grievor. The facts of the present case do not appear to raise any similar equity against the Ministry. To be successful, such an equity would have to.be in the form of a promissory estoppel,i.e., that the representations of Ms. Martin amounted to a clear and unequivocal promise to the grievor that all aspects of the settlement of the 12 grievances, including retroactivity, would be ~pnlied across !.hc ., ^ I 1. - 8 - system; that MS. Martin intended the grievor to act in reliance upon this representation: and, that the grievor did act in reliance upon it in circumstances where it would be inequitable to permit the Ministry from going back on the promise. See Central London Property Trust Ltd. V. Hiqh Trees House Ltd: [1947] K.B. 130; Combe v. Combe I19511 1 All E.R. 767, 770; Aiayi v. R. T. Briscoe ( Nigeria ) Ltd. (1964) 1 W.L.R. 1326 (J.C.P.C.); Re Gukoie and Ontario Housing Corporation, G.S.B. 13/75 (Beatty), at PP. 6-B. /~" In the present case, it does not appear that the repre- sentations which were made to the grievor by Ms. Martin were of such ,.' character as to raise any,equity against the Ministry. These remarks were not clear and unequivocal: they geem to have been of a broad, general nature. According to the grievor's own testimony, the specific question of retroactivity never was addressed. For all that the evidence tends to indicate, the remarks might solely have amounted to a representation that if a shift to the classification of Social Worker II were to occur as a result of the grievances', that shift would be applied across the board. This is, in fact, what happened. !:. Moreove’r, it seems evident-from Ms. Martin's testimony that her remarks were made in the context of casual conversation and were not intended to induce the grievor to act in reliance upon them. In fact, Ms. Martin testified at one point that when the grievor raised the topic of the disparity in wages, she told him that.she was not in a position to tell him to do something, that there were choices that he could make. Despite this advice, however, the grievor never contacted a Union Steward and never filed a grievance. s- - 9 - In light of the above, it is the conclusion of the Board that the circumstances of the present case do not raise any equity against the Ministry, and accordingly, the Ministry is entitled to rely upon the usual rule limiting recovery in the case of continu- ing violations of the Collective Agreement. AS a result, the grievor cannot recover on his claim for retroactivity to July 1, 1978. The grievance is hereby dismissed. r DATED at London, Ontario, this 5th day of March, 1985. be&s, Vice Chairman I F. D. Collom. Member H. Roberts, Member