GSB#1384/99, 0384/01
UNION #99F021, 01U050
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between: Ontario Public Service Employees' Union Grievor
(Mehta/Union Grievance)
- and -
The Crown In Right of Ontario
(Ministry of Finance) Employer
Before: Owen V. Gray Vice-Chair
For the Grievor: Don Martin Grievance Officer OPSEU
For the Employer: Karin Rasmussen Counsel Legal Services Branch Management Board Secretariat
Hearing: February 8 and September 7, 2001.
DECISION
1An employee's "anniversary date" for pay administration purposes is the point in the year as of which a public servant who is not at the maximum of the salary range for his/her position will ordinarily receive a "merit" increase to the next step in that salary range. Before Hemant Mehta was promoted from Corporations Tax Auditor to Senior Corporations Tax Auditor on November 2, 1998, his anniversary date was in May. Following that promotion, the employer changed his anniversary date to November. This delayed by 6 months the annual date as of which he would be entitled to increases thereafter. Mr. Mehta grieved that that adjustment was contrary to Articles 7.1.2 and 7.1.3 of the collective agreement then in effect, under which he asserts he was entitled to keep the anniversary date that he had had before he was promoted.
2The hearing of Mr. Mehta's grievance began on February 8, 2001. As a result of events that occurred that day, the union filed a policy grievance on May 31, 2001, alleging that "the Employer's policy 'Upon Promotion' as set out in the Manual of Administration violates Articles 7.1.2 and 7.1.3 of the Collective Agreement." On agreement of the parties, these two grievances were heard together.
The Parties' Initial Positions
3Articles 7.1.2 and 7.1.3 of the collective agreement in effect at the time of Mr. Mehta's promotion provided as follows:
7.1.2 An employee who is promoted shall receive that rate of pay in the salary range of the new classification which is the next higher to his or her present rate of pay, except that:
where such a change results in an increase of less than three percent (3%), he or she shall receive the next higher salary rate again, which amount will be considered as a one-step increase;
a promotional increase shall not result in the employee's new salary rate exceeding the maximum of the new salary range except where permitted by salary note.
7.1.3 Where an employee:
(a) at the maximum rate of a salary range is promoted, a new anniversary date is established based upon the date of promotion;
(b) at a rate less than the maximum in the salary range is promoted and receives a promotional increase:
greater than a one-step increase, a new anniversary date based on the date of promotion is established;
of one step or less, the existing anniversary date is retained.
In Articles 7.1.2 and 7.1.3 of the current collective agreement, which was in effect at the time the union filed its policy grievance, the two bullet points in the former Article 7.1.2 have been labelled "(a)" and "(b)", and the two bullet points in paragraph (b) of the former Article 7.1.3 have been numbered "(1)" and "(2)". Articles 7.1.2 and 7.1.3 of the current collective agreement are otherwise identical to the correspondingly numbered articles of the previous collective agreement.
4When the hearing of Mr. Mehta's grievance began on February 8, 2001, the parties had agreed on the following facts:
Agreed Statement of Facts in the Grievance of Hemant Mehta, GSB #1384/99
February 8, 2001
At all relevant times Mr. Mehta was a member of OPSEU covered by the Collective Agreements signed on August 30, 1996, between Management Board of Cabinet and the Ontario Public Service Employees Union.
Mr. Mehta began with the Ministry of Finance as a Corporations Tax Auditor in the classification of Financial Officer 4 on May 5, 1997.
At his anniversary in May, 1998, Mr. Mehta advanced to the 3rd step of the Financial Officer 4 wage grid with pay of $1022.11 per week.
Mr. Mehta was successful in a job competition, and on November 2, 1998, he was promoted to the position of Senior Corporations Tax Auditor in the classification of Financial Officer 5.
At the time of Mr. Mehta's promotion from FO4 to FO5, the salary rate at the next step of his old classification (FO4) was $1069.03 per week.
Compared with his position on the Financial Officer 4 wage grid, the next higher rate of pay in the Financial Officer 5 wage grid at that time occurred at step 2 with a pay of $1051.19 per week, an increase of less than 3%.
In accordance with article 7.1.2 of the Collective Agreement, Mr. Mehta began in his new position as a Financial Officer 5 at step 3 with a pay of $1105.64.
When he began work in the Financial Officer 5 position, Mr. Mehta's anniversary date was changed from May to November.
5Based on these facts, to which it had nothing to add, the union's position was (and still is) that since the grievor was not at the maximum rate of the salary range for his pre-promotion position, the promotion's effect on his anniversary date was governed by paragraph (b) of Article 7.1.3. The second bullet point of that paragraph provides that a promoted employee who was not at the salary maximum for his pre-promotion position retains his pre-promotion anniversary date if his promotional increase is "of one step or less." The grievor's promotional increase was the result of applying the provision in the first bullet point under Article 7.1.2 (now Article 7.1.2(a)). That part of that article expressly states that the result of its application "will be considered as a one-step increase." On that basis, the union says that the grievor's promotional increase was "of one step or less" for purposes of paragraph (b) of Article 7.1.3 and, accordingly, his anniversary date should not have been adjusted.
6The first bullet point of paragraph (b) of Article 7.1.3 provides that a new anniversary date based on the date of promotion is to be established when an employee receives a promotional increase "greater than a one-step increase." The employer's position was and is that it relied on the following portion of its former Manual of Administration, and particularly the emphasized sentence, to conclude that the grievor's promotional increase was a "greater than a one-step increase":
Definition:
"Promotion"
Promotion occurs when the incumbent of a classified position is assigned to another position in a class with a higher maximum salary than the class of his former position.
Salary Treatment:
Effective January 28, 1976 an employee who is promoted shall receive that rate of pay in the salary range of the new classification which 1s the next higher to his present rate of pay, except that:
where such a change results in an increase of less than 3%, he shall receive the next higher salary rate again, which amount shall be considered as a one step increase;
a promotional increase shall not result in the employee's new salary rate exceeding the maximum of the new salary range except where permitted by salary note.
º Effective April 1, 1978 a rate of pay, resulting from promotion, which is less than the sum of the next higher rate in the former salary range plus 3% shall be considered a one step increase.
Determination of Anniversary Date:
Where an employee:
a) at the maximum rate of a salary range is promoted, a new anniversary date is established based upon the date of promotion;
b) at a rate less than the maximum of a salary range is promoted and he receives a promotional increase:
greater than a one step increase, a new anniversary date is established based upon date of promotion;
of one step or less, the existing anniversary date is retained.
Apart from the emphasized sentence, this language is identical to the language of Articles 7.1.2 and 7.1.3. The employer says that the emphasized sentence serves as a definition of what is a promotional increase "of one step or less" and what is a "greater than a one step increase" for purposes of determining the anniversary date under paragraph (b) of Article 7.1.3. The necessary implication of the emphasized sentence, it argues, is that a rate of pay, resulting from promotion, which is greater than or equal to the sum of the next higher rate in the former salary range plus 3% reflects a "greater than a one step increase" for purposes of paragraph (b) of Article 7.1.3. The union takes the position that whatever the emphasized sentence may mean, it does not appear in the collective agreement and does not alter the employer's obligations under that collective agreement in cases such as Mr. Mehta's. For ease of reference, the emphasized sentence and the definition that the employer infers from it will hereafter be referred to as "the Manual's 3% test."
7In order to explain the context for a ruling made during the hearing of these grievances on September 6, 2001, it is necessary to refer to the course these proceedings took on February 8, 2001.
The Order For Delivery of Particulars
8At the hearing of February 8, 2001, counsel for the employer said she proposed to argue, among other things, that the employer had always applied the above-quoted provisions of the Manual of Administration, that it had done so without complaint by the union, and that the union was therefore estopped from alleging that the collective agreement means or requires something inconsistent with those provisions. A discussion ensued. As I noted in my order of February 15, 2001:
6Employer counsel was asked whether she was seeking to introduce evidence beyond what appeared in the agreed statement of fact. The nature of a claim of estoppel by silence was discussed. Counsel was asked whether she had evidence to show, for example, that prior to the negotiation of the collective agreement in effect at the time of the promotion there had been an occasion or occasions known to the union when the employer's application of the provisions of its Manual of Administration had had a result inconsistent with the union's interpretation of the predecessors of Articles 7.1.2 and 7.1.3. In response, counsel for the employer sought an adjournment in order to seek out evidence in support of the employer's claims concerning its past practice and the effect of that practice on the correctness or enforceability of the union's interpretation of Articles 7.1.2 and 7.1.3. On being assured that he would receive particulars of the employer's claim before the hearing resumed and that a union grievance on this issue could, if the union chose, be joined with this one, the union's representative consented to the requested adjournment.
In view of what later occurred, I should say something more about the context in which this discussion of previous occasions arose.
9In his opening on February 8, 2001, anticipating to some extent a reference by employer counsel to the provisions of the Manual of Administration, the union's representative had remarked that he was unaware of any occasion on which there had been a change of anniversary date upon promotion of an employee in a position similar to Mr. Mehta's. He added that he had reviewed various salary grids under the collective agreement, and had concluded that circumstances in which the Manual's 3% test would actually affect an employee adversely were rare at best, and possibly might never have occurred before Mr. Mehta's promotion. Whether or not this assessment was accurate, the union's representative thus made it clear that if the employer relied on actual or imputed knowledge by the union of the employer's having applied the Manual's 3% test, it would have to prove that.
10In the discussion that resulted from employer counsel's request for an adjournment to search out such proof, the union representative's concern was two-fold. One concern was that he knew well in advance of the next hearing of any circumstances in which the employer alleged it had applied the Manual's 3% test with adverse effect, so that he could investigate those circumstances and prepare to deal with them at that next hearing. The other concern was that the effort of investigating and arguing an estoppel claim not be expended solely on an individual grievance with no precedent value. Those concerns were addressed in the discussion of delivery of particulars and the opportunity to join a policy grievance with Mr. Mehta's that were reflected in the order of February 15, 2001.
11Following the hearing of February 8, 2001, my order of February 15, 2001 directed the delivery of particulars by the parties on a timetable they had proposed and agreed to at the hearing. That order was in these terms:
a) The employer shall deliver to the union written particulars, setting out any allegations of fact (other than facts on which the parties have agreed) on which it proposes to rely in this matter, by the close of business Monday, April 16, 2001.
b) The union shall deliver to the employer written particulars, stating which of the employer's allegations it agrees with and which of the employer's allegations it disagrees with and setting out any allegations of fact on which it proposes to rely in response to the employer's allegations, by the close of business Monday, June 11, 2001.
The hearing was adjourned to Thursday, September 6, 2001.
12Employer counsel faxed particulars to the union's representative on May 16, 2001, after having sought and obtained the union's agreement to an extension of the deadline for delivery. The fax recited the above-quoted provisions of the Manual of Administration, and others, at length. It asserted that it had been the practice of the employer for at least 25 years to calculate anniversary dates in accordance with those provisions. It asserted that the Manual had been "available" to the union throughout that time, and that the relevant provisions of the collective agreement had been unchanged in at least the last four rounds of renegotiation. It repeated the details of Mr. Mehta's situation, adding the dollar figures to show that his salary immediately after promotion was not within the Manual's 3% test for a one step increase. The faxed particulars asserted that
- It is the practice of the employer, which was followed in this case, to provide written confirmation to the employee of his or her promotion. This confirmation advises the employee of his or her new anniversary date, if the date has been changed. In addition, a promoted employee whose anniversary date has been changed receives the annual merit increase on a different date from the annual merit increase date preceding the promotion. Until Mr. Mehta brought the instant grievance, the employer is not aware of any grievance having been filed in respect of employees whose anniversary dates were changed upon promotion.
The faxed particulars did not expressly assert, however, that there had been any occasion prior to Mr. Mehta's in which the employer had changed the anniversary date of a promoted employee to whom paragraph (a) of Article 7.1.3 did not apply. (The unparticularized implication of this paragraph that there had been employees whose anniversary dates had changed upon promotion is consistent with the employer's having applied paragraph (a) of Article 7.1.3 in circumstances to which it bore application.) The fax contained no particulars of any occasion, prior to Mr. Mehta's, when the employer's application of any part of its Manual of Administration had had a result inconsistent with the union's interpretation of Articles 7.1.2 and 7.1.3 or their predecessors. In the circumstances, the union's representative was entitled to and did conclude that the employer did not intend to rely on any such allegations.
The Attempt to Introduce Unparticularized Allegations of Fact
13At the hearing of September 6, 2001, employer counsel called witnesses through whom she sought to introduce evidence of specific occasions when an employee's anniversary date had been changed as a result of promotion. The union's representative objected to her doing so, in light of the order directing delivery of particulars and the circumstances in which the order had been made. Employer counsel did not contend that the proposed evidence concerned matters which could not with due diligence have been ascertained within the time for delivery of particulars. Indeed, she said that during that time there had been no attempt to locate evidence of specific occasions when an employee's anniversary date had changed as a result of promotion. She stated that the people who had directed the investigation (the one that she had in February sought the opportunity to perform) had only investigated whether there had been any grievances by the union complaining of adjustments to anniversary dates, and none had been found.
14Employer counsel suggested that if the union needed time to respond to the evidence she intended to present, there could be a further adjournment for that purpose. She said she had been involved in hearings in which the union provided particulars on the day of the hearing. She acknowledged, however, that those were not occasions in which there had been an order for delivery of particulars. The union's representative opposed any further delay in resolving Mr. Mehta's grievance and the associated policy question, noting that there had already been a lengthy delay. Having indicated that she did not intend to argue estoppel by silence, employer counsel argued that the evidence she proposed to introduce was relevant to her past practice argument and should be admitted notwithstanding the failure to particularize it.
15I refused to admit any evidence concerning specific occasions (other than Mr. Mehta's) when an employee's anniversary date had changed as a result of promotion or suggesting that such occasions had previously occurred in circumstances like Mr. Mehta's or that the Manual's 3% test had previously been applied to the detriment of an employee prior to Mr. Mehta's case. The order of February 15, 2001 had made it clear that the employer was to provide in advance of the hearing particulars of any facts on which it intended to rely, other than those to which the parties had agreed. The employer had provided no particulars of the facts that were the subject matter of the proposed evidence. The circumstances that gave rise to the order of February 15, 2001 left no room for doubt that these were the very sort of facts that the employer was obliged to particularize in advance of the hearing if, after investigation and reflection, it discovered evidence of such facts and determined to rely on them.
16The object of an order for delivery of particulars is to enable the parties to know the cases they have to make and meet and prepare to do so in advance of a hearing. This reduces the potential for delays that can result from surprise at hearing, and promotes efficient and effective use of hearing time. It also enhances the prospects of settlement, where any exist, by causing the parties to focus on the strengths and weaknesses of their positions in the litigation that is their alternative to settlement. If a dispute is to be resolved by arbitration, there comes a time when the factual issues in dispute must cease being an obscure, elusive or moving target. When ordered or agreed upon, the delivery of particulars is part of the process of defining what the parties' dispute is about. Once the parties have delivered particulars in accordance with an agreement or order that obliges them to particularize the facts on which they rely, a fact not particularized is presumptively a fact not thereafter in issue. Evidence concerning a fact not in issue is not evidence relevant to matters in issue.
17Unless there is some good reason to permit untimely introduction into a dispute of a fresh factual issue, each party should be held to what it has said the dispute is about. It is in the nature of the labour arbitration process generally, and the processes of the Grievance Settlement Board in particular, that there will be cases in which there is good reason to give a party leave to introduce allegations that it had not particularized earlier when required to do so. This was a good example of a case in which there was no good reason to grant such leave.
Decision
18The evidentiary hearing of September 6, 2001 added little of significance to the agreed facts set out in paragraph [4] of this award.
19The employer concedes that on January 7, 1991, Management Board's Human Resources Secretariat announced that
To reflect the changing times, the Human Resources Secretariat has developed new directives and guidelines to replace the Manual of Administration, Volume II.
Part II of the Manual is the part that contained the 3% test on which the employer relies here. The emphasis on the word "replace" appears in the original announcement. The Human Resources Directives and Guidelines ("the Guidelines") that replaced the Manual do not contain the Manual's 3% test. On the subjects of promotional increases and "anniversary date/merit increase" following promotion, the Guidelines expressly direct that the relevant provisions of what are now Articles 7.1.2 and 7.1.3 be applied, without elaborating on what those provisions require.
20The employer's argument for the application of the Manual's 3% test, articulated both through a witness and in closing argument, starts with the fact that Article 7.1.3 of the collective agreement speaks about promotional increases being either "greater that one step" or "of one step or less" without expressly defining the distinction. Without such a definition, paragraph (b) would never bear application, the employer says, and would serve no purpose. It argues that the agreement should not be so interpreted as to have that result. That result is avoided by adopting the Manual's 3% test as the needed definition. Employer counsel referred to Wilson, 855/84 (Roberts), in support of the proposition that resort may be had to the Manual of Administration to fill in a gap of this sort in the collective agreement.
21The issue in Wilson was whether what is now Article 7.1.3(a) was breached when the employer assigned an anniversary date that was the first day of the month following the date of promotion, in accordance with a provision of the then Manual of Administration. The union argued that the words "a new anniversary date is established based upon the date of promotion" should be read as though "based upon" meant "at". It cited dictionaries in support. The Board found, however, that the rule set out in the Manual of Administration (which had not then been replaced by the Guidelines) was what the parties had had in mind when they had agreed on the "based upon" language:
While it seems to be the case that Article 5.2.3 (a) is sufficiently 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 before unionization, the Civil Service Commission required anniversary dates to be established as the first day of the month following promotion. Subsequent to unionization, this practice became enshrined in the Manual of Administration, copies of which are readily available to Management and Union alike. This practice was openly and notoriously followed throughout the Civil Service through thousands and thousands of promotions over a period of decades. There was no evidence to indicate that in all this time, through 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.
22This passage (from pages 5 and 6 of the Wilson decision) describes the classic circumstances in which "past practice" evidence is used in the interpretation of a provision of a collective agreement — that is, where the language of the provision is ambiguous and has been applied repeatedly, consistently and without objection by the union in accordance with an open and notorious practice, through multiple renegotiations of collective agreement in which the language in issue was not changed. "Notorious", in this context, means well known to the union. If the practice were not notorious in that sense, one could hardly conclude that the union had had it in contemplation when agreeing to the collective agreement language in issue.
23The generalized assertion by the employer that it had a practice of applying the portion of its Manual of Administration quoted in paragraph [6] above cannot alone advance its position, even when repeated in those general terms by its witnesses. With the exception of the one sentence setting out what I have been calling the Manual's 3% test, the language of that portion of the Manual is identical to the language of the collective agreement. If the employer never actually had occasion to apply that one sentence, either at all or in a manner adverse to employee interests, then a practice of applying the Manual would be indistinguishable from a practice of simply applying the collective agreement. So the pertinent question about past practice would be whether there was a past practice, as that term was used in Wilson (frequently, openly, notoriously), of applying the Manual's 3% test. More precisely, since the issue here is whether the Manual's 3% test can trump the last several words of the first bullet point (now paragraph (a)) of Article 7.1.2, the pertinent question about past practice would be whether there was a past practice, as that term was used in Wilson, of applying the Manual's 3% test with adverse result to an employee whose promotional increase was dictated by the first bullet point (now paragraph (a)) of Article 7.1.2
24There is no basis here for a finding that the employer had ever applied the Manual's 3% test, either at all or with adverse result to an employee whose promotional increase was dictated by the first bullet point (now paragraph (a)) of Article 7.1.2, prior to its doing so in Mr. Mehta's case or, if had ever done so, that its having done so was known to the union. Further, and more importantly, there is no ambiguity to resolve in the collective agreement language applicable to Mr. Mehta's circumstances. Past practice cannot be invoked to modify the meaning of language that is neither patently nor latently ambiguous.
25While the collective agreement does not expressly define in general terms how to determine whether a promotional increase is "greater that one step" or "of one step or less" for purposes of paragraph (b) of Article 7.1.3, it does expressly answer that question for the case in which promotional increase is determined by the first bullet point of Article 7.1.2. The first bullet point of Article 7.1.2 provides that answer. It says that the promotional increase for which it provides "will be considered as a one-step increase."
26One cannot make sense of the addition of those words to Article 7.1.2 unless they were intended to speak to the issue raised by paragraph (b) of Article 7.1.3. As employer counsel seemed to concede, and as is in any event the case, there is no provision of the collective agreement other than paragraph (b) of Article 7.1.3 under which it would be necessary to consider whether or not a promotional increase was "a one-step increase."
27Employer argues, however, that the closing words of what is now paragraph (a) of Article 7.1.2 should not be treated as determinative of the application of 7.1.3(b) in cases to which Article 7.1.2(a) applies because those words appear in an article concerned with determining salary on promotion rather than in the article concerned with determining anniversary date on promotion. This approach to interpretation cannot advance the employer's position. The Manual's 3% test, the one the employer says should be determinative, appears in the former Manual under the heading "Salary Treatment" and not under the heading "Determination of Anniversary Date." On the employer's argument, it likewise should not be treated as addressing anniversary date determination in an authoritative way. Unlike the former Manual, moreover, the collective agreement does not categorize Articles 7.1.2 and 7.1.3 by assigning them different headings or titles. The first bullet point of Article 7.1.2 clearly speaks both to salary administration and to a matter of significance to the determination of anniversary date on promotion. There is no reason to interpret it as though it was only intended to speak to one of those matters and not the other.
28I find that Articles 7.1.2 and 7.1.3 together clearly and unambiguously provide that a promoted employee who qualifies for the salary treatment prescribed by the first bullet point (now paragraph (a)) of Article 7.1.2 and who was not paid at the maximum rate in his/her pre-promotion position is entitled to retain his/her pre-promotion anniversary date upon promotion. That is Mr. Mehta's case. His grievance therefore succeeds.
29As I understand it, the union's policy grievance was intended to raise for final determination the same question as Mr. Mehta's grievance — that is, whether a promoted employee who qualifies for the salary treatment prescribed by the first bullet point (now paragraph (a)) of Article 7.1.2 and who was not paid at the maximum rate in his/her pre-promotion position is entitled to retain his/her pre-promotion anniversary date upon promotion. On that issue the policy grievance succeeds as well.
30I should note that this case did not, and this decision does not, deal with the case of a promoted employee who does not qualify for the special salary treatment prescribed by the first bullet point (now paragraph (a)) of Article 7.1.2 and who was not paid at the maximum rate in the employee's pre-promotion position. For an employee in those circumstances, the first part of Article 7.1.2 prescribes the employee's promotional increase but does not say (as the first bullet point does for employees in Mr. Mehta's situation) whether that increase is "greater that one step" or "of one step or less" for purposes of paragraph (b) of Article 7.1.3. The absence in the collective agreement of a definition to guide the application of Article 7.1.3(b) in such cases will present an interpretive problem if the parties have not agreed or cannot now agree on one.
31By way of remedy in the union grievance, I declare that Articles 7.1.2 and 7.1.3 together provide that a promoted employee who qualifies for the salary treatment prescribed by what is now paragraph (a) of Article 7.1.2 and who was not paid at the maximum rate in his/her pre-promotion position is entitled to retain his/her pre-promotion anniversary date. I direct that the employer govern itself in accordance with that interpretation.
32By way of remedy in Mr. Mehta's grievance, I direct that the employer restore his pre-promotion anniversary date, retroactive to the date of his promotion, and restore him financially to the position he would have been in had it treated that date as his anniversary date from the outset. This will include compensating him for salary shortfall resulting from its having failed to make his increases effective on that date since his promotion, and making any adjustment to his benefits, pension or otherwise which may be necessary to restore him to the position he would have been in had he been treated throughout as having retained his anniversary date on promotion. Compensation for salary shortfall would include the sum of the differences between the salary Mr. Mehta received and the salary he ought to have received in each pay period since his promotion, together with interest at an appropriate rate on each difference from the pay date for the pay period in which it occurred to the date on which compensation for it is paid.
33I remain seised with the issue of the amount of compensation payable to or on behalf of Mr. Mehta and any other issue that the parties may be unable to resolve concerning the implementation of this decision.
Dated at Toronto, this 14th day of September, 2001.