GSB#2010-1064

UNION#2010-0671-0002

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Gilchrist)

Union

• and -

The Crown in Right of Ontario (Northern Development and Mines)

Employer

BEFORE

Belinda Kirkwood

Vice-Chair

FOR THE UNION

Sheila Riddell Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Paul Meier Treasury Board Secretariat Legal Services Branch Counsel

HEARING

January 21, 2015

Decision

1The Union claimed that the Employer had misinterpreted and had breached the Memorandum of Settlement (“MOS”) which it had entered into on February 7, 2011 by paying the Grievor the rate of pay that she was receiving at the time the Memorandum of Settlement was reached, and in so doing, had abused its management rights as conferred by Article 2.1 of the Collective Agreement.

2The Union claimed that the proper interpretaion of the MOS was that the Grievor was to be placed on the wage grid that corresponded to her continuous service date (“CSD”) which the parties had agreed was August 29, 2008.

3The Employer claimed that the agreement under the MOS was to maintain the Grievor’s current conditions, which therefore was to pay the rate of pay that she was receiving at time of signature of the MOS and not adjust the rate of pay to reflect the earlier CSD.

4The issue that was to be determined was whether the Memorandum of Settlement was to be interpreted such that the Grievor was to receive the pay rate and progression that she was receiving at the time the MOS was signed or whether she should be placed on the wage grid that corresponded with the continuous service date which the parties had agreed was August 29, 2008.

5The Employer presented the agreed statement of facts on the merits:

6On or about August 29, 2008, the Grievor began employment in the OPS as a fixed-term employee with the Ministry of Government and Consumer Services, classified at the OAG 8 level.

7On or about April 2, 2009, the Ministry of Northern Development & Mines (“MNDM”) offered the Grievor a fixed-term contract as an Administrative Assistant, classified at the OAG 9 level.

8Commencing on September 1, 2009, MNDM hired the Grievor as a permanent employee, an Administrative Assistant (OAG 9) in the Assistant Deputy Minister’s Office, Northern Development Division. MNDM required the Grievor to serve out a nine-month probationary period.

9On May 21, 2010, the MNDM released the Grievor from employment during her probationary period.

10The Grievor grieved her probationary release, the Union referred her grievance to arbitration and the GSB scheduled a hearing date before Vice-Chair Kirkwood on January 12, 2011.

11By November 8, 2010, before the GSB’s scheduled hearing date, the Grievor had found and started a new job in the OPS; this time as a Program Assistant in the OAG 8 classification level with the Ministry of Labour (“MOL”).

12As a MOL new hire, the MOL paid the Grievor at the first step of the OAG 8 wage grid and required her to serve a probationary period (i.e., nine months per the applicable OPSEU Collective Agreement).

February 7, 2011 Memorandum of Settlement

13By February 7, 2011, the Employer, the Union, and the Grievor, had all executed a MOS, fully and finally resolving the Grievor’s grievance. At the time she signed the MOS on or about February 2, 2011, the Grievor’s conditions of employment were as follows: she was being paid at the first step of OAG 8 wage grid and she was still serving out her probationary period, all in accordance with the OPSEU Collective Agreement.

14Paragraph 5 of the MOS stated:

The Union and the Employer agree that this settlement shall in no way affect or change any current conditions of employment imposed upon the Grievor, including the term of probation she shall serve in her current position, Program Assistant with the Ministry of Labour, which she entered into on November 8, 2010. This settlement shall not preclude any adjustment the Ministry of Labour may choose to make in terms of the period of probation.

15As a concession made to obtain a full and final settlement on February 7, 2011, the Corporate Employer agreed to preserve the Grievor’s CSD as August 29, 2008 for seniority purposes. The Corporate Employer agreed to bridge her CSD by designating the period between the Grievor’s termination from MNDM (May 21, 2010) and her hire date with MOL (November 8, 2010) as a leave without pay and amending its “corporate records” regarding same. Paragraph 4 of the MOS stated:

The Employer shall amend its corporate records to indicate that the Grievor was on a leave of absence without pay, from May 21, 2010 – November 7, 2010.

16For greater certainty concerning the Grievor’s MOL probationary period, the parties also agreed to Appendix “B” of the MOS which was to be appended to the Grievor’s corporate personnel file (see para. 7 of the MOS). Appendix “B” stated:

As a result of a settlement, changes were made to Ms. Gilchrist’s corporate personnel file. It is agreed by the Union and the Employer that, as of November 7, 2010, the employee, Ms. Gilchrist has not contributed any service toward the fulfillment of a probationary period to satisfy any obligations imposed as a condition of employment or with reference to the relevant articles of the Collective Agreement.

17Thereafter, the Grievor completed her probationary period (i.e., on or about August 8, 2012) and moved up the OAG 8 salary grid subject to and in accordance with the OPSEU Collective Agreement.

18Paragraph 14 of the MOS states that GSB Vice-Chair Kirkwood will remain seized of any dispute “with respect to the enforcement of the terms of this settlement”.

Allegation of Contravention of the MOS dated January 10, 2014

19On or about January 10, 2014, the Grievor filed a grievance disputing the February 2011 MOS as signed almost three (3) years earlier. The Grievor alleged the “breach of interpretation of Memorandum of Settlement”. As her “settlement desired”, the Grievor demanded “full redress and to be made whole” and demanded a “pay rate increase (grid scale) based on date hired in OPS,” being August 29, 2008.

SUBMISSIONS

20The Employer’s submitted at this hearing that at no time did it contravene the February 2011 MOS. The MOS expressly stated that the parties’ agreement would have no impact on her “current conditions of employment” when it was duly executed in February 2011. As a result, the Employer continued to pay the Grievor at the rate and terms established upon her MOL hire date (November 8, 2010). The Employer submitted that is what happened; and in addition, and in any event, the Employer paid the Grievor based on her November 2010 MOL hire date for almost three years before she even raised her complaint.

21Accordingly, the Employer submitted that since the Grievor’s delay was extreme, I ought to exercise my discretion and dismiss the instant MOS dispute; and/or, in addition to the Grievor’s extreme delay, the Employer has been prejudiced by same and therefore submitted that exercise my discretion and dismiss this instant MOS dispute.

22The Union submitted that while the MOS did state that the settlement shall in no way affect or change the conditions of employment, the settlement specifically discussed the probationary period but was silent as to the Grievor’s placement on the wage grid. The Union submitted that seniority is a significant entitlement for employees, and this settlement recognized and provided the Grievor’s CSD. The Union submitted that it would be incongruous and unfair to underpay the Grievor, and pay the Grievor at a rate different from that flowing from her CSD, and different from the rate of pay provided to others having the same CSD.

23The Union submitted that the Grievor ought not to be prejudiced for not arbitrating the issue immediately. When the Grievor went to work for the MOL, she advised the MOL that she was going to arbitration, and further that she needed time off to do so. Once she had signed the MOS, she continued to raise her position with the MOL that she ought to be paid based upon her CSD and tried to obtain a resolution without resorting to the grievance procedure. The Grievor acted in good faith attempting to resolve the issue without resorting to the grievance procedure. The Employer was aware of her position and was not prejudiced by the delay in filing the grievance. The Grievor was not waiting in silence for three years before grieving and then suddenly surprized the Employer with her claim. To dismiss the grievance as untimely would penalize the Grievor from attempting to resolve matters in an amicable way.

DECISION

24Although I heard further particulars set out by the Union which included statements of fact made by the Union on timeliness of the grievance, submissions and jurisprudence both on the Employer’s objection to my jurisdiction to hear this matter based on the Grievor’s failure to grieve the matter within the time limits under the collective agreement, and on the merits of the matter, I will not deal with the timeliness of the grievance as my decision on the merits disposes of the matter. I have found that the grievance is dismissed for the following reasons:

25In OPSEU/Victorino and Ministry of Government Services (GSB No. 2009-1293, 2009-1750)(November 30, 2010)(Abramsky), Vice-Chair Abramsky set out the fundamental principles applied in the interpretation of collective agreements, which is equally applicable to the interpretation of contracts such as this MOS, which is to determine the intent of the parties from the words that they have chosen to use in their contract and to apply such intent as expressed. As quoted by Vice-Chair Abramsky, referring to Brown and Beatty, Canadian Labour Arbitration, 3rd Ed, at para. 4:2100:

Accordingly, in determining the intention of the parties, the cardinal presumption is that the parties are assumed to have intended what they have said, and that the meaning of the collective agreement is to be sought in its express provisions. The same excerpt continues that: “arbitrators have generally assumed that the language before them should be viewed in its normal or ordinary sense, unless that would lead to some absurdity or inconsistency with the rest of the collective agreement…

and further states that:

where there is no ambiguity or lack of clarity in meaning, effect must be given to the words of the agreement, notwithstanding that the result may be unfair or oppressive….

26The terms of the MOS relied upon are clear and not ambiguous. The MOS specfically stated at paragraph 5 that “this settlement shall in no way affect or change any current conditions of employment (my emphasis) imposed upon the Grievor, including the term of probation she shall serve in her current position, Program Assistant with the Ministry of Labour, which she entered into on November 8, 2010…”

27Although there was no reference to any wage or placement on the wage grid, this absence does not take away from the meaning of “current working conditions”. The meaning of “current working conditions” is a matter of proof and evidence.

28Further, another basic principle which Vitorino (supra) relies upon in paragraph 11, referring to Re Noranda Mines Ltd. (Babine Division) and United Steelworkers of America, Local 898 [1982] 1 W.L.A.C. 246, 261 (Hope), is equally applicable here. Where the union is asserting that a contract includes a monetary benefit, it is incumbent upon the union to establish that the employer has agreed to provide that financial benefit in clear and unequivocal terms. As Arbitrator Hope explained at p. 262: “I find it inherently unlikely that the employer would express an intention to confer substantial monetary benefits on employees in language from which that intention emerges obliquely or by inference.”

29The MOS which was signed on February 2 and February 7, 2011, was a full settlement of all the Grievor’s grievances including her cessation of employment with the MNDM.

30Under the MOS, the parties agreed to use August 29, 2008, the Grievor’s start date for her first position with the OPS as the Grievor’s CSD and characterize the period between her release from her probationary period with MNDM and her obtaining a new position with the MOL as leave without pay.

31At the time that the Grievor and the Union signed the MOS, the Grievor was working as a Program Assistant in the OAG 8 classification level with the MOL. By letter dated October 14, 2010, the Employer had offered her this position at the current salary of $22.02, which as the letter pointed out fell within the range for her position of $22.02 to $24.83. She was also advised that she would have an annual salary review date of November 1, 2011 to allow for salary progerssion through the pay range.

32The Grievor accepted and signed back this offer of employment and took the position. As such, these were the current conditions of Grievor’s employment when the settlement was reached in February 2011.

33The parties clearly agreed to one date for a continuous service date, but specifically agreed that the current working conditions, which were those which she was working under and receiving at the time of the agreement, were to apply.

34There is no intention expressed directly, nor does it appear even obliquely or by inference to provide monetary benefits to provide other than the wage rate and annual progressions that the grievor was receiving at the time of signing the MOS . There is nothing in the MOS that entitles the Grievor to be paid at the rate conditions more than set out in her offer of October 14, 2011, which constitute her “current conditions of employment”.

35Therefore this grievance is dismissed.