HomeMy WebLinkAbout1985-0103.Lee.86-06-02IN THE HATTER OF AN ARBITRATION
- Under -
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
.
OPSEU (Lee)
- and -
The Crown in Right of Ontario
(Ministry of Health)
Before
For the Grievor:
J.W. Samuels
J. M&anus
P.ti. Camp
.I. Roland
Counsel
Cowling 6 Henderson
Barristers h Solicitors
For the Employer:
Hearing
Grievor
Employer
Vice-Chairman
Member
Member
H.H. Fleishman
Counsel
Ninfitry of Attorney General
November.25, 1985, and agreed facts in writ,ipg
:
~” PAY RESEARCH FILE COPY
DO NOT~RENIOVE .
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ln!mductbm
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This case involves a neat Point with respect to the calculation of the
grievor’s salary.
The grievor’was employed by the Ministry of Community and Social
Services as a Residential Counsellor 2 at the Pineridge Regional Centre in
Aurora. Then the faclllty was Closed, and Ule grleVOr was a SUrplUS
employee available for reassignment pursuant to Article 24 of the
collective agreement
As of June 27, 1984, she was reasslgned to the employ of the Ministry
of Health at the Queen Street Mental Health Centre as a Clerk 2 General.
while at Pineridge. the grievor worked 40 hours per Week In her new
positfon, she works 36 l/4 hours per week This difference arises from the
provisions governing the hours of work in Reguiation 881 under the pubtc
.%‘fWG~ Act.
Article 5.5.1 .of the collective agreement provides for red-circling of
an employee’s salary when an employee is assigned to a new position under
_ Article 24 Article 5.5.1 reads:
Where. because 01 the abolitii ol a posit!!. M
employee b assigned:
(a) tim one psitii in a ministry to another poli-
tim h the same ministy. ci
(b) hmtt * positin in one minisby to a position h
another ministry.
The parties disagree on how the red-circled salary is to be calculated.
Is the grievor entitled to retain the same weekly salary as she had whenshe
worked 40 hours per week? Or, Is she entitled only to the same hourly rate?
The Ministry has been paying the,grievor the same hourly rate, but Only for
36 114 hours per week. The grievor says that she is entitled to the same
weekly salary as she had when she worked 40 hours per week.
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Preliminary Ob!ection: Timeliness
At the outset, the Hlnistry argues that the grfevance is untimely, and
therefore not arbi.tfable.
The parties agree that Article 27.2.1 of the coliectlve agreement
establishes a mandatory tlme llmlt for the rakfng of complafnts or
differences (see, for example, /saac and#ksaaC, GSB 742/83and28/84,
at page 4, and the earlier cases cited therein). It must be done within
twenty days of first becoming aware of the problem. And it Is agreed that
the Board cannot’exiend th’is limit (see the ‘two classic decisions of the
Supreme Court of Canada on the point-- &/on C&We CanadaL Cd y: Weiler
et aI ( 19$8>, D.L.R (2d) 333; and Genera/ ?@CiiDr/VerS Mlfon, Local 938 et
ar! K Hoar ~~NPCF~ Co. Ltd (1969). 4 D.L.R (3d) 449, at pages 450- I). In
our case, there is no doubt that the grievance was filed in March 1985, some
seven or eight months after-the grievor began receiving the payagainst
which she now complains.
The lssue IS whet& or not this IS a ‘COntlnUing’ grieVanCe, or an
isolated matter. if it is a ‘continuing’ grievance, then each time the
problem arises, the 20-day iimitation begins to run anew, and the grievance
in this case would not be untimely.
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The distinction between a ‘continuing’ grievance and an isol&d
matter has been dkcussed in many cases, and it is not an understatement to
say Jhat the law is not entirely, clear. The general notions are fairly
straight-forward. A ‘continuing. grievance involves repetitive breaches of
the collective agreement, or, as some have put it, a ‘recurring breach of
duty’ (this formulation is found in all three of the leading Canadian works
on the matter--Palm&, Co//eccive AgmenthMY-athm /n Cm& (2nd
edition, 19831, at pages I91 -5; BrOWn and Betitty, C&Wan L &Ow
An%~tion (2nd edltkm, 19841, at pages 95-6; and Gorsky, fv/dnce ?nd
P@cedWe in Cmadiian LaboWAQW@m (198 I), at ,page 351. The breach of
a recurring duty is to be distinguished from an isolated breach of the
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collective agreement which causes recurring damage. The latter is not the
basis of a ‘continuing’ grievance. The difficulty comes in the application of
these concepts. One recent arbltratfon decision has characterised the
jurisprudence well as ‘brangled.....a fruitless search through a thicket of
precedents’ ( Re Provfnce of b?jU& Colmbk? aml&Wt~~ Cohmbia htrses’
Vim (1982&S LAC. (3d) 404 (Getz), at 4) 4 2/3).
In cases involving the allegation of deficient wage payments, some
authorities suggest that this fs a ‘continuing’ grievance (see Palmer, at
page 192 3/4. and the cases cited in footnote 113). However, ln Re ProvznCe
of&itikh Colwnbia (cited above), it was decided that the real breach is the
original calculation of the wages, which is an isolated event, and the
character of the breach does not change though the calculation governs an
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on-going series of wage payments (at page Sl~Sl.
In our view, the better opinion is that each wage payment is an,
isolated event. if the payment is not in accordance with the collective
agreement, then the employer has breached the agreement. Each time a
wage payment is not in accordance with the agreement, the breach recurs.
Thus, this is a case involving a ‘continuing’ grievance.
The grievor did not file her grievance until March I, 1985. Therefore,
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if her grievance Is sound In substance, she is entitled to a remedy only in
respect of any wage payment in the Wenty days preceding her claim, and
I ’ thereafter.
On the Calculatfon of the Red-Circled Salaw .
As a Residentfal Counsellor, the grievor’s weekly pay was calculated
by multiplying the hourly rate agreed between the parties by 40 (the number
of hours she worked in a w.eek). .ln the Appendix to the collective agreement
which relates to the institutional Care Services Category, the compensation
rate for the Residential Counsellor is shown in terms of hourly rates. There
are Other classifications feg. Occupational instructor) for which the .
compensation rate is shown in terms of weekly rates.
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The Ministry argues that this shows that the grievor’s ‘salary’ under
Article 5.5.1 is an hourly rate, and it is this hourly rate which must be red-
circled Counsel referred us to only one case which raised a point llke the
one before us. In the days before the parties had a collective agreement, the
Public Service Grievance Board considered the claim of Mr. R G. Allen (No.
BO5/74), whose weekly hours had been reduced from 40 to 36 I /4. Both the
CSAO and the Employer agreed that the nanc/a/ofAab?in&Ya~ion governed
the situation (the same provision is still in the Manva//). It provides that,
wh.e? an employee’s p@tion IS abolished and the employee is reassigned,
the employee ‘will retain his existing rate of pay’ and ‘shall continue to be
entitled to salary progression, based on merit, to the maximum salary of the
higher classification, k’tcluding any revision of the maXlmUm salary of the
higher classification that takes effect during the salary cycle in which the
assignment takes place’. The Board decided that it was the hourly rate
which was red-circled, not the weekly earnings.
It was not argued that, when the collective agreement was
negotiated, the parties intended in Article 55.1 to codify the prOVlSlOn in
the /iZwm/ofA~~his~at/m and the interpretation it had MeNed in the
A//en case. It is signif icant that the Manua speaks specifically of the
‘existing @&of pay’ (emphasis added), whereas Article 5.5. I does not. We
heard no evidence on the negotiations. We, must decide the case by
reference soleiy to the language of Article 5.51.
In our view, Article 5.5.1 mu&t be read together with Article 24. The
two provisions together provide a measure of job and monetary security to
the surplus employee. Article 24 deals with the reassignment of an
* employee, as follows:
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24.2.1 Where m rmgloye.~ b Mentllbd 44 ,urplUs h4 sh4ll b. l rripned on the basis 01 hb 8~nlorlty to 4 vaun~y In hb
ministry within l lofty (40) kllomrtr~ radius 01 hb head-
qurrtrn pmided h b qwmisd lo wfloml VII work and
lhe salary maximum 01 (he vaCsnCy b not greater Ihan
three psmm (3%) abiw II(y hvmny pernN mb) bebw
lhe m&mum salary 01 hb Cbssitkalbn, 4s tOttOWSz
- I vacmcy tikh kin Ihb urn4 CbsI OI pOstIion as the l PIOYW’S cI~ 01 PWtlon; - rvacmyin~cbssofposnknlnwhkhths
employee has utrwd durhg hb Cumnl Mrm Of
comlnuousMNlce;w *
- mo1hervacaPey.
ed lo a wancy In hb mlnbby bepnd a IMY NOI
kilometre ndius ot hb headquanem provided he b
quaIltied to pwfoml the m)fk and the Mlaly maxlrnurn
01 the “sCanCy b not greater than three pehent 0%)
above mf twenty percenl (20%) blow the maxhum
salary of his dassifiiion. Rekalkn ~xPWSES chall be
.,. paid in accordance with the prOviSions 0t the Employer’s
wcl.
24.23 Where m employee has not been assIgned h 8cxofd-
me tilh subse~tii 242.1 or 2422 he shalt be
assigned on the bash of his 8AOrity to B V in
another ministry withtn a forty (40) kitometre radius 0t
hls headquarters provtded he b quatitied to pertOrm the
workmdthesalatymaximumc4thavacawbml
greats, than three perCent (3%) above l!of tww per-
cant (20%) bekw the maximum salary 01 hii da&f-
tien. as tdlova:
- avacancywhkhblnthesameclassarposttiin
as the employee’s class ol positkm:
- avamcyhackssorposltknktikh~
emphyee has saved during hi sunent teml ol
continUous service: or
- another vaC8nCy.
24.3.1 Where an employee b ats@Ied to 4 Va- h -rd.
mce with wbseclbru 24.21.24.2.2 ~242.3. SectiOn
5.5 of Allick 5 (ckssifaion PrCcedure) shan wp+.
As this Board commented in palangia, G!GYZ7/3, the purpose of
these provisions is ‘to provide employment stability and salary stability on
the basis of seniority’ (the pages in the award appear to be unnumbered, but
the relevant passage appears ‘at the bottom of the 7th page of the award to
the top of the next page).
In our view, one Ought to read Articles 5.51 and.24 llteI?Ny. What Is
being preserved is the employee’s ‘salary’, not the ‘rate of salw. The
parties have demonstrated their acknowledgement of the difference
between these two terms, by using the words ‘hourly rate’ elsewhere in the
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agreement--for instance, Articles 3.2.1,3.3, 3.4 I and 7.7. This latter
provision is important for us:
Where the Employer Inlands to tranrkr rmpkywt o(
. an empkyee ltom one s3~4uk ta another schedule. Ihe
Employer will discuss Ihe Iranrler with Ihe Unkn prkf
,o such lrmsler. when the trmster OCCUR. Iha
empkyw’r weekly salary based on his beak hcwly rale
shaii be adjusted accordingly.
Here the parties speak of the ‘weekly salary based on his basic hourly rate’.
,ln Articles 5.5.1 and 24, the part& speak simply of ‘salary’. ‘Salary’
means ‘fixed payment made by employer at regular intervals’ ( 7i3e Cant/s
OxfimfDkhmy (New Edition 1982)). .c
We conclude that, under Article 55.1 of the collective agreement, the
grievor was entitled to have her ‘payment made by employer at regular
intervals’ red-circled It is the payment itself which is protected, not the
c hourly rate used to calculate that payment.
At the end of our first day of hearing, the parties asked the Board to
withhold its award until the partles decided whether or not they would
introduce evidence concerning past practice in this matter. Some months
later, the parties asked the Board to schedule another day of hearing We
were to meet on April 21. However, two days before this date, the partles
informed the Board that they had agreed on the.past practice and would
submit the evidence in writing. The hearing was cancelled
In the agreed written statement of facts, the parties referred to 38
employees who changed positions in various Ministries in 1984 and’ I985
and whose salaries were red-CirCled In 16 cases, the employees moved
from 40-hours-per-week jobs to 36.25-hours-per-week jobs, and their
In 15 weeklv salaries were red-circled, Just as the Union requests here.
cases, employees making the same move had their Bo!lfJy rates red-circled,
(1 as the Ministry argues should be the case here. As well, it would appear
that, when employees moved from 36.25-hours-per-week jobs to 40-hours-
per-week ]obs,‘their weekly salaries were red-circled In our view, the
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past practice on moves llke the one wlth which we are deallng is obvlously
lnconslstent and offers no support for an estoppel in favour of elther party.
In thls situation, we are left wlth lnterprettlng the language of the
collective agreement Itself.
For these reasons, the grievance Is allowed The grlevor shall be
compensated for lost salary In respect of any payment made in the twenty
days before the date of her grievance, and therealter. This Board will
remain seized of this matter to determine the predse amount of
compensation if the partles are unable to agree on thls themselves.
Done at London, Ontario, this 2nd day Of June, 1986.
J. McNanus, Member
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“I dissent” (Dissent to follow) I P. 0. Camp, Member