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HomeMy WebLinkAbout1983-0708.Crocker.84-08-15IN THE MATTER'OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAIN ING ACT Between: Before: For the Grievor: For the Employer: Hearing Date: Before GRIEVANCE SET T TELEPHONE* rr.5/999-09.99 70%/83 LEMENT BOARD' OPSEU (Susan Cracker) - and - Grievor The Crown in Right of Ontario (Ministry of Community and Social Services) Employer R. J. Roberts, Vice-Chairman G. Nabi, Member H. Roberts, Member 3. Mi,ko Classification-Grievance Officer Grievance Section Ontario Public Service Employee's Union M. Milich Staff Relations Officer Staff Relations Division Civil Service Commission ,June 8, 1984 L. The issue in this between the grievor interpretation and awl collective agreement, case arose out of a difference and the Ministry, regarding ication of Article 6.1 of the which deals with temporary assignments. For reasons which follow, it is concluded that the interpretation applied by .the Union was the correct one. The grieva.nce is allowed. DECISION The operative facts of this case were put' before the Board by way of an Agreed Statement of Facts. This statement was as follows: \ 1) The grievor was hired in August, 1979 as a Clerical Stenographer 3. 2) In May, 1980, her position of Data Communications Clerk was reclassified to Clerk 3, General. 3) On March 1, 1982, she was appointed to a temporary assignment, Eligibility Analyst at the Clerk 4, General. 4) Her salary prior to the temporary assignment was $295.13 and became ~$313.24 on appointment to the Clerk 4, General. These were 1981 salary rates. 5) After the salary revision for 1982, Mrs. Cracker's wage increased to $343.00, ..Clerk 4. General. 6) The grievor continued to receive the normal sa 1 ary revisions at the Clerk 4, General level to $381.97 until her 2nd temporary assignment. 7) to On August 22, 1983, the grievor was appointed. -. . ner. secona temporary assignment to tne position of Income Maintenance Officer, Welfare I i 3. Field Worker I. 8) Effective August 22, 1983 the Ministry processed‘ the transaction in the following manner: Two CSC 303/s were issued pursuant, to the.attached documents. . . . 9) The present dispute deals with what base rate should be used to calculate the salary for her 2nd temporary assignment in accordance with the meaning of Article 6.1: Article 6 - Temporary Assignment 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 eight (8) 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 in the higher classification provided .that such acting pay shall not be less than three percent (3%) above his current rate. 10) The Employer maintains that 3% should be calculated on the base of the rate of her original cla.ssification, Clerk 3, General, at $361.25 (1983 rate). 11) The Union maintains that 3% should be calculated on the rate she earned at the time of her appointment to the. 2nd temporary assignment, Clerk 4, General, $381.97. The issue between the parties revolved around the wording of the final part of Article 6.1 of the collective agreement, which providessthat "acting pay shall not be less than three percent (3%) above . . . Ithe employee's] current rate." It was the position of the Ministry . . 4. at this three percent was to be calculated on the is .of the rate for the, grievor's permanent ssification -- even though she had not performed duties within that classification for 18 months. order to reflect this viewpoint, the Ministry effected two-step "paper" transfer of the grievor. First, re was a "paper" transfer of the grievor back to permanent classification. The second step was to ect a second llpaper' transfer of the grievor from s classification to her second temporary assignment. s paperwork, then, was consistent with calculating three percent differential in pay upon the r,ate the griever's permanent classification. The trouble was, however, that this paperwork did reflect what actually happened. The grievor never urned to her permanent classification.. She moved ectly from her first temporary assignment to her ond temporary assignment. It was submitted that the light of this fact, the grievor's 'Icurrent rate" her rate of pay in her first temporary assignment, the three percent differential should have been culated on that basis. The submissions of both parties, focused upon struction of the words "current rate". ~The question 5 ., gotiated, :r to the /prior to I ther it y i'ntend I ie employee's I ‘se, this truction. s to the : at the educe any notorious lpport an romissory /at might I I of the greement, :ies must i used in I. llS sense be words. / industry I n certain L meaning 6. i which will prevail. ' Where application of this canon of construction leads to an interpretation which is not "absurd", in / the legal sense, that interpretation ordinarily will prevail. This point was made in Re Wilson and Ministry of Correctional Services (198b,, G.S.B. NO.‘ I 170/78 (Swan), where the Board said, in pertinent part: 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 p%%sumption that the 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 sometimes "fill in the gaps"' of a collective agreement, h 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 common sense. . . . Id. at 5-6. - . . 7. In the absence of a finding that no reasonable parties could have intended such a result, the parties are ~entitl~ed to the benefit of the "plain meaning" of the words'they have chosen to use. In the present case, there seems to be little doubt that "current rate", in its common and ordinary sense, must be taken to refer to the rate of pay actually being received 'by the employee immediately prior to his or her temporary transfer. The word "current", ins its common i and ,ordinary sense, refers to what is presently in existence or now in progress. It most certainly does not refer .to what was in existence a week ago or a month ago or, as in this case, 18 months ago. The submissions~ .of the parties did not provide the Board with any basis upon which to conclude no reasonable parties could have intended such a result. In fact, given that the collective agreement does not place any time limit upon the duration of a temporary transfer, the result the Board has reached seems to be most reasonable. Article 6.1 of the collective agreement does not operate within a very narrow range of time limits, as do the temporary transfer provisions .of many other collective agreements. It is not inconceivable that in some ministries an employee might spend more time in a temporary assignment‘ ,than in \ 8. his or her so-called permanent classification. Because i of this, an ‘unreasonably harsh result 'well might arise if "current rate" were interpreted to refer to the rate of the permanent classification and not that of the temporary assignment. (' Further, it is noteworthy that interpreting "current rate" as referring to the actual rate immediately prior to temporary transfer does not invariably result in preferring the interests of one party over the other. For example, if an employee were to be assigned to a lower classification due to lack of work pursuant to the provisions of Article 6.2 of the collective agreement, and thereafter temporarily transferred to a higher rated position, his or her "current rate" would be that of the lower classification to which he or she was temporarily~ assigned. It would not be the higher rate assigned to the permanent classification. The grievance is allowed. . The grievor is entitled to be paid at the appropriate salary scale retroactive to her date of appointment to the Welfare Field Worker I classification. There will be no interest on this sum. Mention was made oft a claim for interest at the outset of the hearing: however, in argument this claim was not pursued. We will retain' jurisdiction of the matter pending implementation by the parties of the terms of this Award. 9. DATED AT Londori, Ontario this .15thday of August, 1984. Vice Chairman G. Nabi, Member Ii. Roberts, Member