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Home My WebLink About1984-0855.Wilson.86-03-24IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: For the Grievor: For the Employer: Hearing: OPSEU (Kevin Wilson) Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer R. J. Roberts Vice Chairman J. Best Member H. Roberts Member I. Roland Counsel Gowling & Henderson Barristers & Solicitors J. F. Benedict Manager, Staff Relations Personnel Branch Ministry of Correctional SerViCeS February 14, 1985 Ccl lective Agreement, which reads as follows: AWARD This arbitration arises under Article 5.2.3 (a) of the Where an employee: (a) at the maximum rate of a salary range is promoted, a new anniversary date is estab- listed based upon the date of.promotion; . . . . . It was contended on behalf of the grievor that under this provision, properly interpreted, the grievor's anniversary date should have been the date upon which he was -promoted to the classification of Rehabilitation Officer 2, and not the first of the month following. the date of promotion, which was the date selected by the Ministry. For reasons which follows, the grievance is dismissed. On,May 6, 1960, the grievor was promoted from the classi- fication of Correctional Officer 2 to the classification of Rehabili- tation Officer 2. As instructed in the Manual of Administration, the Ministry thereupon established tne grievor's anniversary date as the first of the month following the date of promotion, i.e., June 1, 1960. Thereafter, in the years 1981, and 1982, and 1983, the griever received his annual merit increases, effective as of this anniversary date and not his date of promotion. In 1984, there was a delay in processing the griever's merit.increase which apparently dre:i his a ttention to the details of the process. When the griever disc*overed that his annual merit increases were not being mac?e as of his date of promotion, May 6th, but as of a later date, June lst, he filed tie grievance leading 3. to the present arbitration. It seems that over a considerable period of time, the grievor has held several different positions in the Union. In 1981, he was the President of his Local Union, and in this capacity had been involved in processing a grievance which ended in a settlement that he thought generally established that the anniversary date, within the meaning of the Collective Agreement, was to coincide with the date of promotion. Because the Ministry was not behaving in accordance with this understanding, there appeared to the grievor to be grounds for a~ grievance. The evidence at the hearing, however, established that to the extent that a general understanding was reached in the settle- ment of the previous grievance, the Ministry was in compliance with it. Prior to the !understanding, the practice ,of the Ministry in removing the underfill of Probationary Correctional Officers, i.e., in promoting,them from the rank of CO 1 to CO 2, was to promote them as of their anniversary date, i.e., the first of the month following completion of their l-year probationary period. This meant, in effect, that probationers ijho had been hired in the first part of the preceeding month spent almost 13 months at the probationary rate. This practice varied from that generally followed by other Ministries. The generally accepted procedure was to promote probationers immediately upon expiration of their prc'bacionary period, so that they immediately benefited fr"om the higher rate of,pay, and then establish as their anniversary date for purposes of merit increases, etc., the first of the month following promotion. 4. In the settlement, the :.!inistry essentially agreed to bring its practice with respect tc probationers into line with that followed by other Ministries. In its letter leading to the settle- ment, the Ministry advised the Union "that the Ministry changed its practices and effective from Zuly 1, 1982, Correctional Officer l's will have their underfill condi" Lion removed one year from the date of appointment to the class of Correctional Officer 1, provided all the conditions of the underfill. have been met." The letter went on to emphasize that the Ministry was changing a local practice only, stating, "the practice that gave rise to this grievance is that of this Ministry and not the [Civil Service] Commission and we have now changed it." Thereafter, the grievance was withdrawn. In the face of the foregoing, it must be concluded that the understanding that was reached bet ween the Ministry and the Union did not have:anything to do with changing the procedure estab- lished in the Manual-of Administr-'i LGL-on for determining anniversary dates, inter m, for purposes of payment of annual merit increases. This was not a local practice, but one followed throughout the Civi'l Service. Moreover, evidence submitted at the hearing demonstrarot that never was there a change in practice of the Ministry with resoe=t to establishing anniversary dates. In all applicable cases, re- gardless of the nature of a promoticn, the Xinistry established as the anniversary date the 'first day of the month following prcmc:ior. -\ The Union submitted that even if the Soard were to conclude, as it has, that the understanding in the previous grievance did net 5. . affect the o.utcome of this case, the only reasonable way in which to interpret Article 5.2.3 (a) of the Collective Agreement would be as a requirement that the anniversary date be the date of promotion: Article 5.2.3 (a) reads as follows: there an employee: (a) at the maximum rate of a salary range is promoted, a new enniversary date is established based u?on the date of promotion;... It was submitted that because the general meaning of "anniversary" is "the yearly return of any remarkable date, the day on which some interesting event is annually celebrated", Shorter Oxford Dic- tionary, the use of the word in the ebove Article must be taken to refer to the annual return of t:he only interesting event addressed i.e., the date of promotion. The Boar(d) however, is unable to accept this submission. I while it seems to be the case that Article 5.2.3 (a.) is sufficiently I ambiguous to permit the introduction of extrinsic evidence such as dictionary definitions, it would appear that the most relevant evidence of the intent of the parties in framing this provision must be found in the evidence of past practice which was led by the Ministry. This evidence showed that even oerore unionization, the Civil Service 1 1 - Commission required anniversary d~:es to be established as the first day of the month following cro7zotion. Subsequent to union- ization, this practice became er.shrir.e. d in the Xanilal of Adminis- tration, copies,of which are readily available to Management and Union alike. This practice was openly and notor~iously followed .-t: ; : 6. throughout the Civil Service thro:ugh thousands 'and thousands of promotions over a period of decades. There was no evidence to in- dicate that in all this time, thrcugh countless renegotiations of the Collective Agreement, the wording of Article 5.2.3 of the Collective Agreement was changed. In the face of this, it must be concluded that when the current Collective Agreement was negotiated, both parties contemplated that the words, "a new anniversary date is established based upon the date of promotion," referred to the establishment of the anniversary date as the first of the month following promotion. The foregoing interpretation, is consistent with the word- ing of Article 5.2.3 (a), in that the selection of the first day of the month following promotion definitely is a.selection based 'upon the date of promotion. Moreover, application of general srincip les of construction tend tc s'upport the conclusion that the parties did not contemplate that zhe date of promotion should be the anniversary date. For example, to read Article 5.2.3 (a) in the manner suggested by the Union apparently would render superfluous ' the words "based upon". The relevant -;rassage might as well have rezd, "a new anniversary date is established [as]...the date of promotion." According to the canons of construction, however, the :i o r d s "based upon" cannot be ignored but must be given meaning. 'he conclusion that the parties :m:s: have intended these words to be given meaning is buttressed by re<eArence to a related sub- section of the Collective Aoreament, ~ -...a -. Article 5.7, where the language selected by the parties indicated that when they intended to specify that a particular event should happen on a certain date, they specified tha: date directly, and not indirectly through use of the phrase "based upon". 7. Finally, there was a claim for interest arising out of the fact that due to the fault of the Ministry, there was a delay of about three months between the time the grievor should have received his 1984 merit increase and the time he actually received it, with appropriate retroactive payment. The present case, however, would not appear to be a case for interest. The Ministry openly acknowledged its fault and apologized. .The evidence indicated that the procedures which caused the delay have now been changed in order to prevent similar delays from happening again, The interest that could have been collected by the grievor appeared to be de mtiinimus in nature, apparently amounting to a sum in the - order of 83.00. In these circumstances, it would not seem to be aborooriate for this Board to make an award of interest. ._ _ The grievance is dismissed. DATED at London, Ontario, this 24th day of March, 1386. A Vice Chairman "I dissent" H. Roberts, xember I I