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Home My WebLink About1985-1209.Gam et al.87-11-06Between: Before: For the Grieve;: 1209185, 12'10/8$., 1212185 1307185, 1308185'; 1309/85 1310/85~, 1311185 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD For the Employer: Hearings: OPSEU (GamEt Al) and The Crown'in Right of Ontario (Ministry of Community & Social Services) Employer F. L. Verity, Q.C. Vice Chairman I. Fr&dman Member H. Roberts Member T. Hadwen Counsel Cavalluzzo, Hayes and Lellnon Barristers & Solicitors C. Slater Solicitor Legal Services Branch Ministry of Community h Social Services June 22, 1987 September 21, 1987 , * -2-' DECISIO,N 2 Between July and November of 1985, eight grievances were filed by employees holding the position of Income Maintenance Officers alleging improper classification as Welfare'Field Worker 1. All grievors are involved in the administration of the Ministry's Handicapped Children's Benefit Program in the Metro Toronto area. Each grievance sought reclassification as Executive Officer 1 with retroactive benefits to various specified dates. Subsequently, the Employer reclassified all. eight grievors as Welfare Field Worker 2 retroactive to April 1, 1985. The reclassification selected by the Ministry was apparently acceptable to all grievors. However four grievors, namely., buisa Gam, 1209/85, 1.2lO/85, Mar~ieileen McCabe, 1309/85, and Milojka Soraya Mohammed, Vukas, 1212/85, could not agree with the retroactivity date selected.' Accordingly, the sole issue ~for determination is, whether the gtievors are entitled to retroactivity prior to April 1, 1985. The Board was advised that the grievances of Delia Soares, .1310/85, Edith Maxwell, 1308/85, Margo Angus., 1307/85 and Donna Sullivan, 1311/85 were .withdrawn by the Union. , The Union called only one witness, Mrs. Luisa Gam. Mrs. Gam fi1ed.a classification grievance dated 'July 26, 1985 in which she sought retroactive salary and benefits .back to August of 1980. " The Employer agreed with the objectivity and the accuracy of Mrs. Gam's testimony and accordingly decided to call no. evidence in reply. Simply stated, there is no dispute on the facts. The grievor was first employed by the Ministry in February .1978. In August 1980; she assumed her case load under the Ministry's Handicapped Children's;Benefit Program. In the spring of 1982, the Grievor first approached her Supervisor, Sarah Holland, with the - complaint that she was improperly classified as Welfare Field Worker 1. To alleviate the concern, Mrs.~Gam was advised that her case .load could be reduced and given in part to another employee similarly, classified. Mrs. Gam, a conscientious employee, was uncomfortable with that suggestion and decided to ,maintain the status quo. In January of 1983, Supervisor Holland transferred half-of the grievor's case load to Income Maintenance Officer, Mika,Vukas.. Mrsi Gam renewed her concern that she was-improperly classified. Mrs. Holland advised the Grievor that the area management team wasp in the process of reviewing three areas of specialty case loads: Bandicapped Children's Benefit Workers, Eligibility Review Of.ficers, and Employment Support Workers. Miss Holland requested the grievor collaborate with her to write a Handicapped Children's Benefit Worker . . . . . : - 4 -, job specification.. Mrs. Gam readily complied with the request. In cross-examination; the grievor testified that she "assumed" that reclassification was being considered. Later in 1983, the~grievor learned that E.R.O.'s had been reclassified retroactive to April, 1983. The grievor approached local manager Michael Klejman. Mr:Klejman told the grievor that her classification was being reviewed and "that it would probably take some 2-l/2 years for all~three specialty case loads to be adjusted". In cross-examination, the Grievor candidly~acknowledged that no management representative told her that she was misclassified but - ,-. rather ,that the matter was being reviewed. The grievor also acknowledged that she chose not to grieve. In 1984, the grievor ascertained that E.S.I.'s had been reclassified. Mrs. Gam approached local manager Klejman to enquire as to the status of the review of H.C.B. workers. The grievor was advised that the matter was still under. review by personnel. In April 1985, the grievor brought the classification issue to the attention of the.new local manager Barbara Saunders. Manager Saunders was unaware of the~past history and suggested the preparation of an up-dated job description. Frustrated by the ,lengthy delay, the griever wrote a memorandum to her local manager onApril 24, 1985. The memo clarif.ied the grievor's intent to file a classification -5 - grievanc,e unless a favourable response was received by May 31. On June 1, the grievor extended her deadline to.June 30 in the belief that the Ministry was giving serious consideration to the request. On June 25, 1985 Barbara Saunders sent a memo to the grievor to the ef.fect.that "Bead Office, Human Resources" was aware of the classification concern. The memo went on to state that "a classification decision has yet to be finalized". The Union argued that the grievor was entitled to retroactive compensationdating back to January 1, 1983. ,The Union acknowledged that there was no promise of reclassification nor any form of tacit approval onthe part of management. However, Mr. Badwen contended that the grievor .pressed her concerns on an informal basis and raised those 'concerns periodically subsequent to January 1, 1983. In support, the Union submitted the following Board precedents:~ OPSEU (Steven C. Smith) and Ministry of Community and Social Services, 237/81 (Roberts): F.R. Hdoper and Ministry of Government Services, 47/77 (Swan); OPSEU (Gianna Parise, et al) and Ministry of the Attorney General, 238/83 (Roberts); OPSEU (Boyle et al) and Ministry of Transportation and Communications, 0675/85 (Brandt); and OPSEU (Beerthuizen et al) and Ministry'of Revenue,,261/85 (Brent). The Ministry contended that the grievor's attempts to ,process her claim outside the grievance procedure, absent tacit approval or any representation that she was misclassified and would be ,i .’ -6 - reclassified,,, effectively barred her rlaim for retroactivity beyond : the Ministry's date.of. April 1, 1985. Mr. Slater contended that to justify retroactivity in a classification grievance there must; be an equity against the Ministry in the form of promissory estoppel', otherwise the 20 day rule..applied. In addition, Counsel argued that in the absence:of evidence from~the three remaining grievors, Mrs. Gam was the only grievor who would be entitled to receive retroactivity in the event of a favourable ruling. The usual .rule for compensation in classification grievances t under this Collective Agreement is that the grievor, if successful, is limited,to a claim of compensation for a period of 20 days prior to the date of the filing of a grievance. See, for example, Re OPSEU and Ministry of the Attorney-General, GSB 71/76 (Beatty); and OPSEU (Steven C. Smith) and Ministry of Community and Social Services -(supra). Tbis rule may .be varied .in appropriate,circumstances where it would be inequitable for the Ministry to rely upon it. see;, for example, the Smith Decision (supra); F. R. Eiooper and Ministry of Government Services, (SUpra); and OPSEU (Boyle et al) and Ministry of . Transportation and Communications, (supra). In the Smith Decision, .tbe Board found that representations made to the grievor were not intended to induce reliance, but were of a broad general nature. The specific question of retroactivity was never. addressed. The Board dismissed then griever’s claim for : retroactivity beyond the 20 day rule. on the.finding thatthe. facts did not raise any equity against the Ministry. .. 2 'In the Hooper Decision, the grievor was successful in establishing an exception to the rule on the basis of "tacit approval" of the classification request "from everyone concerned except the classification officers of the Civil Service Commission"'. '. Vice-Chairman Brandt appears to have taken a broader approach in the Boyle Decision. At p. 15, the Vice-Chairman sets out the competing positions on retroactivity: "Those cases reflect the view that~where there is a continuing course of conduct which can be the subject of a.griev.ance at any time, i.e. a continuing grievance, 'gr,ievors' who postpone their decision to grieve and seek‘relief should not be able to claim compensation retroactively to a point in time when they could have but did not grieve. 'There are sound policy reasons which support that approach. If there are disputes or differences between the parties they should'-be aired and not permitted to simmer. yet there is. a competing policy which~comes into play in this 'case. That is the policy in favour of settling disputes short of invoking the ,' grievance procedure and having recourse to the Grievance Settlement Board. ~A rigid applic'ation of the '20'day .rule' would discourage employees from attempting through .less formal means to settle their dispute. 'It would be far more desirable to grieve and 'lock in' a fixed date which would become the basis for determining compensation in the event of success.' : I ~-8 - ’ Based on the facts of the Boyle case, the Board's rationale appears at p. 16: n .*.we do not believe it appropriate to apply the 20 day rule where informal efforts have been-made to achieve a settlement of a dispute short of recourse to arbitration. Those efforts should be encouraged and, in the event that they are not successful~ in achieving settlement and it becomes necessary to grieve, such relief as might bs awarded by the Grievance Settlement, Board should be retroactive to the point ,wbere steps were first taken to settle the grievance informally." In the instant-matter, Mrs. Gam did have an informal discussion with Supervisor Elol1and.i.n January, 1983 in which she claimed misclassification. Admittedly a job description was prepared by the grfevor and Supervisor Bolland in early January of 1983; However, there were no representations that ~managementagreed with her position or that she would be reclassified, There was no discussion concerning retroactivity. ,It cannot be ~said .that the grievor was misled by the Employer. In fact, the Grievor was advised by local manager Klejman in 1983 ,that her,classification was being reviewed but that the review would'take some 2-l/2 years. In our‘opinion, to protect here claim to retroactive compensation, the grievor should have filed a grievance fin 1983 after her discussions with Mr. Klejman. However, she made a conscious decision not to grieve. In these particular circumstances, the Board . .‘. :.’ ~,:, is not'persuaded that there is any equity ~against the Ministry'whicb would entitle the grievor to the relief claimed. However, by early April of 1985 the grievor made her position clear to the new local :.. manager Barbara Saunders that she intended to file a grievance in the event that the informal procedures were unsuccessful. In our opinion, the gr,ievor is clearly entitled to compensation dating 6;ack to April 1, 1985 which coincidentally is ,tbe retroactivity date chosen by .the Ministry. The Board must reject the Employer's argument that to justify retroactive compensation, the grievor is required to inform the Employer of the preci&nature of the classification sought. ..That may well have beentbe law before the Ontario Divisional Court Judgment in Ontario Public Service Employees.Union and Carol Berry v. The Crown in Right of'ontario (Ministry of Community and Social Services) (unreported judgment releasedMarch 13., 1986). This panel'agrees with Vice-Chairman Brent's comments in CPSEU (Beerthuizen et al) and Ministry of Revenue (supra) in its~ references to the judicial review of, the Berry case ,at p. 12: -As we read this decision, it is probably not necessary~ for.someone' alleging an improper classification to allege anything more than that...." i *‘. i ,- < ” - 10 - . . Regarding the remaining.three grievors,. it would have been helpful to have heard evidence in support of their claims for retroactive compensation. Eowever, since the Ministry has 'ch@e.en \ April 1, 1985 as the retroactivity date for reclassification p'urposes, the grievors Moh&ned, McCabe and Vukas are entitled to retroactivity as of that date. DATED at Brantford, Ontario, this 6th day of November , 1987. . ~. ..,: ,~~~yict$i?~~~~~~ B. ROBERTSVMBMBER