GSB#2019-1206

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

The Association of Management, Administrative and Professional Crown Employees of Ontario (Behich)

Association

• and –

The Crown in Right of Ontario (Ministry of Education)

Employer

BEFORE

Diane L. Gee

Arbitrator

FOR THE ASSOCIATION

Christine Davies

Goldblatt Partners LLP

Counsel

FOR THE EMPLOYER

Sean White

Treasury Board Secretariat

Legal Services Branch

Counsel

HEARING

November 6, 2020

Decision

1This matter is a Dispute filed by AMAPCEO on behalf of Johnathan Behich in which it is alleged the Employer is in violation of Article 3 (Management Rights), Article 16 (Seniority/Continuous Service), Article 19 (Pay Administration of Regular Employees), and the Pay on Assignment for Regular Employees Policy (the “Policy”). At a hearing held on November 6, 2020, AMAPCEO advised it was no longer taking the position that the Employer is in violation of the Policy.

2Very briefly, Mr. Behich was employed as an Analyst in a non-union fixed term position earning $80,310 per annum from December 5, 2016 until October 27, 2017. After his contract ended, he competed for and won a competition for a Policy Advisor position in the AMAPCEO bargaining unit at a salary of $61,397 per annum. Mr. Behich commenced work in the Policy Analyst position January 8, 2018. AMAPCEO relies on articles 16 and 19 of the collective agreement to argue Mr. Behich should have retained his Analyst salary when he assumed the Policy Advisor position.

3The relevant provisions of the collective agreement are as follows:

ARTICLE 16 - SENIORITY/CONTINUOUS SERVICE

16.1 An employee’s seniority/continuous service will accumulate and shall be calculated as follows:

(a) from the date of appointment to the regular service for those employees with no prior service in the Ontario Public Service.

(b) for a fixed term employee appointed to a full time position in the regular service, from the date established by adding the actual number of full time weeks worked during his or her full time employment back to the first break in employment that is greater than thirteen (13) weeks. When calculating seniority in this situation, a period of part time fixed term employment shall neither constitute a break in service nor be counted towards seniority except that any full time weeks worked during such part time employment shall be calculated into the employee’s seniority; or

16.1.1 For purposes of application of this article, any break in service of less than thirteen (13) weeks shall neither constitute a break in service nor be counted towards seniority.

19.3 Pay Administration on Voluntary Demotion

19.3.1 When an employee competes for and wins a competition for a position in the regular service with a lower maximum salary, he or she shall retain his or her current salary provided it does not exceed the maximum of the new salary range. When the employee’s current salary exceeds the maximum of the new salary range, he or she shall be paid the maximum of the new salary range.

4The Employer brought a motion to have the dispute dismissed on the basis that it is untimely and a motion to dismiss on the basis the dispute fails to make out a prima facie case.

5For reasons set out below, it is my determination that, assuming without finding AMAPCEO’s interpretation of the collective agreement provisions in issue to be correct, one of the elements necessary in order to find the Employer to be in violation of the collective agreement is that Mr. Behich experienced a “voluntary” demotion. It is my determination that the alleged facts are not sufficient to establish such a finding of fact and, accordingly, this matter is dismissed on the basis that the alleged facts are not sufficient to make out a prima facie case.

6Below I have summarized the parties’ full submissions in connection with the no prima facie case motion as some of the submissions, while not directly relevant to the basis upon which I have determined this matter, provide context.

The Employer’s submissions

7In respect of the test to be applied in the course of determining whether or not the particulars make out a prima facie case, the Employer relies on Ontario Public Service Employees Union v Ontario (Government Services), 2011 CanLII 100922 (ON GSB) for the following statement:

6. The decision in Re Difederico, 2008-0868 (Dissanayake) illustrates that a prima facie motion would succeed if the facts asserted in support of a grievance, if accepted as true, are not capable of establishing the elements necessary to substantiate the violation.

8The Employer argues the alleged facts establish Mr. Behich was not an employee covered by the AMAPCEO Collective Agreement at the time he was offered and accepted the Policy Advisor position and thus had no rights or obligations under that agreement. The Employer relies on the case of Association of Management, Administrative and Professional Crown Employees of Ontario (Robins) v Ontario (Community and Social Services), 2017 CanLII 85186 (ON GSB) paragraph 66.

9While the Employer submits that it is trite to say someone is not an “employee” within the meaning of that term as used in the collective agreement until such time as they are hired into a position in the bargaining unit, the Employer further relies on the recognition clause of the collective agreement; section 1 of the Crown Employees Collective Bargaining Act, 1993 (“CECBA”) referenced in the recognition clause, and the Public Service of Ontario Act, 2006, referenced in the CECBA, in support of its position that Mr. Behich was no longer an “employee” once his fixed term contract expired.

10The Employer submits that the foregoing is a full answer. The articles of the Collective Agreement refer to “employees” and what happens to their pay. However, at the time in question herein, Mr. Behich was not an employee and hence the provisions of the Collective Agreement did not apply.

11In response to AMAPCEO’s position, that article 16 provides there has been no break in service and pursuant to article 19.3 Mr. Behich’s salary when he started work in the Policy Advisor role was to be maintained at the same level as he was paid in the Analyst position, the Employer submits that the term “employee” as it appears in those articles refers to someone who is at the time in the AMAPCEO bargaining unit.

12Further, the Employer argues that Article 19.3 is entitled “Pay Administration on Voluntary Demotion” and Mr. Behich was not demoted. Mr. Behich did not hold a position from which there was a demotion. Further, the language refers to the individual retaining their “current salary”; Mr. Behich did not have any current salary at the time he was hired into the Policy Analyst position as he was not employed at the time. On the face of the language, it is apparent that article 19.3 does not apply on the facts of this case.

13Thus, the Employer submits, the alleged facts are not sufficient to establish a violation of the collective agreement and the Dispute ought to be dismissed for a failure to establish a prima facie case.

AMAPCEO’s Submissions

14AMAPCEO submits that the test to be applied in order to determine a no prima facie motion is, as set out in Ontario Public Service Employees Union (Martin et al) v Ontario (Community and Social Services), 2015 CanLII 60449 (ON GSB) as follows:

The question is whether the asserted facts, taken as a whole, constitute particulars capable of supporting the violation of the collective agreement alleged. As the Union argues, the words “capable of supporting the violation” are of some significance. What matters for the purposes of the no prima facie case motion is whether the party responding to the motion, in this case the Union, has articulated a legal theory which, on the facts it has particularized, could reasonably support a conclusion that there is a violation of the collective agreement. Therefore, the particulars are to be assessed against the responding party’s theory of the case. Whether that theory is correct need not be determined at this stage in the proceedings. Provided the responding party’s theory is reasonable and it has provided particulars which, if true, would result in a finding of a breach on the application of that theory, the motion should be dismissed.

15AMAPCEO further relies on the decision of Ontario Public Service Employees Union (Brown et al) v Ontario (Labour, Training and Skills Development), 2020 CanLII 14818 (ON GSB) wherein the test set out in Martin et al. was adopted.

16AMAPCEO submits that the issue is a novel one and Robins, supra, is the only decision to date touching on article 19. According to AMAPCEO, the legal argument it is advancing has not been explored and determined. The language of article 19 has not been the subject of interpretation.

17AMAPCEO submits that article 19 is part of a suite of pay protections that cover a host of different contexts. The theory of the article is the protection of pay. Turning to the elements of article 19.3, the first element required is that there be an “employee.” In the submission of AMAPCEO, Mr. Behich became an employee within the meaning of this article at the point in time that he started working in the Policy Analyst position and as of that time became entitled to the entitlements set out in the terms of the collective agreement including those on pay administration. AMAPCEO argues that nothing in article 19.3 limits the definition of “employee” to someone who was an “employee” within the bargaining unit prior to the demotion. In this regard, AMAPCEO relies on Robins et al, supra, the only case in which article 19 is mentioned, and submits the fact that the complainant was in an excluded position, prior to assuming a position within the AMAPCEO bargaining unit, did not disentitle her from the application of article 19.1.2 dealing with pay upon an employee receiving a promotion. AMAPCEO submits the concern is not that the employee was in a fixed term position outside of the bargaining unit but rather how their pay is administered in the new position. It is enough that the demoted position is in the bargaining unit.

18AMAPCEO asserts that this interpretation of “employee” is strengthened by the language of article 16 in which service outside of the bargaining unit is taken into account for the purposes of calculating “seniority/continuous service.” Article 16.1(b) provides that, where a fixed term employee is appointed to a full time position in the regular service their seniority/continuous service is calculated by including weeks of full-time employment as a fixed term employee back to the first point where there is a break in service of more than 13 weeks. AMAPCEO argues that this language is referring to service outside of the bargaining unit and takes it into account. Mr. Behich does not have a break in service of more than 13 weeks.

19AMAPCEO submits that article 16 must be read harmoniously with article 19 such that the pay protections provided for in article 19 must be applied to employees who were in a fixed term position in a position not within any bargaining unit. If Mr. Behich’s service is recognized for the purposes of article 16, article 19 must also apply to him.

20AMAPCEO refers to Association of Management, Administrative and Professional Crown Employees of Ontario (Raveendra) v. Ontario (Training, Colleges and Universities), 2010 CanLII 64232 (ON GSB), in which the complainant had been employed in the OPSEU bargaining unit from May 1988 to January 2006; left the OPS to work elsewhere; and was then hired into a position in the AMAPCEO bargaining unit on November 3, 2008. The issue in Raveendra concerned whether, on the language of article 17, the complainant was subject to a probationary period. Article 17 provides as follows:

ARTICLE 17 - APPOINTMENT TO REGULAR SERVICE (PROBATIONARY PERIOD)

17.1 There shall be a probationary period of not more than twelve (12) months from the date of appointment to the regular service for employees with no prior service in the Ontario Public Service.

21It was determined that the complainant had “prior service in the Ontario Public Service” notwithstanding she had been away for almost three years and thus did not have to serve a probationary period. AMPACEO relies on the case as recognizing that service outside of the bargaining unit can have consequences for employment under the terms of the AMAPCEO collective agreement.

22AMAPCEO submits that the next element of article 19.3 is that the employee “competes for and wins a competition in the regular service with a lower maximum salary.” Mr. Behich competed for and won the Policy Analyst position which is a regular position. AMAPCEO asserts he was “demoted” as the Policy Advisor position has a lower maximum salary than his prior Analyst position. In the submission of AMAPCEO, article 19 must be read harmoniously with article 16 wherein employment between a fixed term appointment and an appointment to regular service is considered continuous provided the break is not more than 13 weeks. In such case, Mr. Behich’s employment is continuous and he was demoted from the Analyst position to the Policy Advisory position.

23In response to the Employer’s submissions that Mr. Behich was not demoted, AMAPCEO argues that the same language was in issue in Robins, supra, involving an employee who, as described in paragraph 7, held a position in the AMAPCEO bargaining unit, followed by an excluded term position that was renewed twice but subsequently came to an end. After the end of the term of the excluded position, the complainant applied for and obtained a position as Learning and Development Coordinator (“LDC”) in the AMAPCEO bargaining unit. The complainant had earned $60,400 in the excluded position and was offered and accepted a salary of $68,000 for the LDC position. The next day, the Employer gave the complainant a new offer letter reducing her salary to $63,482. Referring to the following excerpt from paragraph 67, AMAPCEO argues the arbitrator refers to a 3% increase on the facts of the case to be a floor and not a ceiling.

67 Applying the foregoing principle in the instant case, insofar as the Employer purported to rely on article 19.1.2 of the collective agreement in justifying the reduction in the Complainant’s compensation from $68,000 to $63,482, which states in part that: “An employee who is promoted shall receive a promotional increase of at least three percent (3%)”, that article prescribes a floor but not a ceiling to the percentage increase the Employer can offer as a starting salary, provided it falls within the negotiated range for the position at issue under the collective agreement. ….

24AMAPCEO also points to paragraph 68 of the Robins decision as being significant;

68… When Ms. Ghouse extended an offer of $68,000 salary she did so on behalf of the Employer in a manner that was sanctioned under the collective agreement, and hence any want of authority by Ms. Ghouse to make that offer is nevertheless binding on the Employer in spite of any internal administrative prohibitions in the matter.

25AMAPCEO states that the offer to Ms. Robins could only have been “sanctioned” if her prior service under the fixed term position was considered under article 19 of the AMAPCEO collective agreement.

26AMAPCEO submits that Robins is a complete answer to the Employer’s argument here as Robins stands for the proposition that employment prior to employment in the AMAPCEO unit is to be considered and once you consider that employment it is evident a demotion has occurred and forecloses the success of a no prima facie case motion. Given the existence of an argument that Mr. Behich’s fixed term position is relevant for the purposes of article 19.3, the no prima facie case motion must fail. To find otherwise, AMAPCEO argues, would be departing from Robins and adopting the wrong approach for a no prima facie case review.

27In reply, the Employer submits Robins did not determine the issue herein and is not on point.

Decision

28For the purposes of this motion I have applied the test as stated in Martin, supra. What is the theory of AMAPCEO’s case and, assuming all of the alleged facts to be true, would the essential elements of that theory be established?

29The theory of AMAPCEO’s case is that, pursuant to article 16, Mr. Behich has continuous service from the date he commenced working in the OPS as an Analyst. Further, he competed for and won a competition for the Policy Analyst position in the regular service. The Policy Analyst position had a lower maximum salary than the Analyst position and, thus AMAPCEO argues, according to the language of article 19.3.1, he is to retain his Analyst salary.

30AMAPCEO argues that, for the purposes of article 19.3, a “voluntary demotion” takes place any time someone with “continuous service” within the meaning of article 16 moves to a lower position and points to the Robins decision in support. AMAPCEO argues that Robins stands for the proposition that an excluded employee, with a break in service before joining the AMAPCO bargaining unit in a higher position, has been “promoted” for the purposes of article 19, and, by analogy, an employee outside of the bargaining unit with a break in service who joins the bargaining unit in a lower position has been “demoted.”

31It is my determination that Robins does not make a finding or determination that is relevant to whether Mr. Behich was voluntarily demoted for the purposes of article 19.3. Robins concerned an individual who was, on AMACEO’s interpretation of the facts of the case, promoted not demoted. The portion of article 19 dealing with a promotion is as follows:

19.1 Pay Administration on Promotion

19.1.1 Promotion occurs when the incumbent of a position in the regular service is assigned to another position with a higher maximum salary than that of his or her former position.

19.1.2 An employee who is promoted shall receive a promotional increase of at least three percent (3%); however, in no case shall the resulting salary be less than the minimum or greater than the maximum of the classification of the position to which he or she is assigned.

32The language of article 19.1 does not qualify “promotion” with “voluntary” as is the case in article 19.3. Further, whether Ms. Robins was “promoted” for the purposes of article 19.1.2 was not in issue in Robins. Any statements in the decision concerning such issue are made in the sections of the decision summarizing the evidence or submissions or are obiter. The decision does not find as a fact that Ms. Robins was promoted and does not determine she was entitled to the entitlements of article 19.1.2.

33AMAPCEO does not allege any facts that would support a finding that the language of article 19.3 is ambiguous.

34In Ontario Power Generation and The Society of Energy Professionals (OPGN-2010-5706/1538), 2013 CanLII 87655, a case not provided to me by the parties but one on which I rely for its simple statement of well-known and oft applied principles of collective agreement interpretation, Arbitrator Surdykowski states:

(a) Principles

32. The fundamental rule of collective agreement interpretation is that the words used must be given their plain and ordinary meaning unless it is clear from the structure of the provision read in context that a different or special meaning is intended, or the plain and ordinary meaning result would be illegal or absurd. Words or phrases cannot be ignored. All words must be given meaning, different words are presumed to have different meanings, and specific provisions prevail over general provisions. As a matter of general principle collective agreements must be interpreted in a manner which preserves the spirit and intent of the collective agreement. However, it is the words that the parties have agreed to use which are of primary importance. The parties to a collective agreement are deemed to say what they mean and mean what they say. Allegedly missing words or terms cannot be implied under the guise of interpretation unless it is absolutely essential to the clear mutually intended operation of the collective agreement, or to make the collective agreement consistent with legislation which the parties cannot contract out of.

35It is helpful to again refer to the language of article 19.3:

19.3 Pay Administration on Voluntary Demotion

19.3.1 When an employee competes for and wins a competition for a position in the regular service with a lower maximum salary, he or she shall retain his or her current salary provided it does not exceed the maximum of the new salary range. When the employee’s current salary exceeds the maximum of the new salary range, he or she shall be paid the maximum of the new salary range.

36Article 19.3 is “Pay Administration on Voluntary Demotion” and serves as a heading to article 19.3.1. As indicated in the quote set out above, words are to be given their plain and ordinary meaning unless it is clear from the structure of the provision read in context that a different or special meaning is intended. The word “demotion,” read in the context of article 19.3.1 means a position with a lower maximum salary. There is no context, however, to inform the meaning of the word “voluntary” and as such it is to be given its plain and ordinary meaning. The parties did not provide me with a source from which to determine the meaning of “voluntary” presumably because its meaning is obvious. The Merriam-Webster Dictionary defines “voluntary” as “proceeding from the will or from one's own choice” or “unconstrained by interference.” The fact that the parties agreed to qualify the word “demotion” with the word “voluntary” cannot be ignored. By qualifying “demotion” with “voluntary” the parties have provided that article 19.3.1 applies when an employee, of their own free choice, competes for and wins a position with a lower salary. The use of the word “voluntary” indicates an employee who is making a decision to forego one job in favour of another. I am supported in this interpretation by the reference, in article 19.3.1 to the employee retaining their “current salary.” The word “current” in the same dictionary is defined as “occurring in or existing at the present time.” Only an employee who is currently employed has a current salary. An employee who is not employed in any position does not have a “current salary.”

37For the foregoing reasons, it is my determination that the facts as alleged do not make out a case for a violation of article 19.3. The Employer’s no prima facie case motion is hereby granted. The Dispute is dismissed.