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HomeMy WebLinkAbout1986-0686.Dalgleish.91-08-07EMPLOV.%DELA CO”RONNE DE L’ONTIRIO C@AMISSION DE . REGLEMENT DES GRIEFS IN TEE NATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before TRB GRIEVANCE SETTLERENT BOARD BETWEEN OPSEU (Dalgleish) - and - The Crown in Right of Ontario (Ministry of Community & Social Services) Grievor Employer BEFORE : W/LOW Vice-Chairperson T. Browes-Bugden Member D. Walkinshaw Member FOR THE GRIEVOR C. Dassios Counsel Gowling, Strathy h Henderson Barristers & Solicitors J. Smith Legal Services Branch Ministry of Community & Social Services April 26, 1991 June 25, 1991 This is a classification grievance brought by Garry IDalgleish who, at the date of this hearing, holds the classification of Supply Clerk 6, and the position of Supply Supervisor at the Rideau Regional Centre in Smith Falls, Ontario. This grievance has an interesting history. Prior to January 1, 1984, the position of Stores Department Head at the Rideau Centre was held by a Mr. Glen Crowe. In 1983,; Mr. Crowe was off sick for a substantial period of time, and ultimately left the department. For most of 1983, therefore, the duties which had been the province of Mr. Crowe, devolved upon the Grievor, and he reported unofficially to Mr. G.K. Tinslay, the Manager of Purchasing who is in charge of the Department. In the fall of 1983, a re-organisation took place of the Stores Department together with the Purchasing Department, and the two ultimately formed the Materiel Services Department. Ur. Tinslay became the Materiel Services Manager and it appears that. the grievor officially assumed the duties which had formerly been the duties with which Mr. Crowe had been charged as the Stores Department Head. Mr. Crowe was classified as a Supply Clerk 7; In January 1984, Mr. Dalgleish first raised his complaint about the fact that he had no position specification and classification governing his new duties and authority. Hr. Dalgleish was concerned about the lack of official authorization to him to carry out certain of the duties which had devolved upon him, - 2 and as a consequence on January 10, 1984, Mr. Tinslay wrote to the Grievor expressly.giving him signing authority over,the following areas: purchase order input, receiving reports, requests to purchase inventory adjustments, requests for leave, and disciplinary documents. From January to April of 1984, the Grievor en&red from time to time about the status of his position specification and was told by his manager orally that it was being worked on but that there was no problem as any re-classification could be retroactive. In April of 1984, a draft position specification for the Grievor was submitted to Human Resources. Following April, the Grievor made enquiries periodically to check on the status of the specification. Marked as an exhibit in this proceeding was a memorandum compiled by the Grievor setting out the various attempts by him from January of 1984 to January of 1986 to obtain a new position specification from the employer. What appears from this memorandum is a delay of some two years during which time: (a) the employer failed to issue a new position specification to the Grievor after having changed his duties substantially: and (b) the employer re-assured the Grievor that a new position specification was forthcoming, and that re-classification could be retroactive. At the hearing of this grievance, the Grievor testified as to the veracity of the contents of the memorandum, a,nd this was not -. 3 challenged by cross-examination. We therefore conclude that the recital of delays and enquiries and further delays is accurate, and we so accept it. Before dealing with the substance of the grievance, we wish to deal here with the question of retroactivity of this award and with the question of the application of the 20 day rule. While normally an award would be made retroactive only to 20 days prior to the filing of the grievance, it is our view that in the circumstances of this case, the 2i) day rule clearly ought not to apply. The employer was apprised of the Grievor's complaint in 'January of 1984. It gave the Grievor assurances of redress of his complaint, and indeed gave assurance as to the retroactivity of the redress. The employer, having led the Grievor to believe that his complaint would be redressed in due course, and having delayed for ,two years, and indeed in excess of two years before it finally indicated to the Grievor a definitive negative answer in response to his plea, cannot now be,heard to say that the Grievor ought to bear the brunt of the employer's delay. The substance of this grievance is that~ Mr. Dalgleish ought to be classified as a Clerk 7, Supply from January of 1984, that classification being the same classification which had been held by Mr. Crowe, whose duties the Grievor assumed unofficially in 1983 and officially in 1984. The employer re-classified Mr. Dalgleish effective May 1, 1986, to Clerk 6, Supply, and it is the 4 contention of the employer that Mr. Dalgleish's duties fall clearly within the class definition of Clerk 6, Supply. It is conceded on behalf of the employer that in the case of an employee in a hospital (which the Rideau Centre is), the bed capacity of the facility is the crucial differentiating factor between a person properly classified as a Clerk 6, Supply and one properly classified as Clerk 7, Supply. The class definition for Clerk 6, Supply provides inter alia: "This class also covers the positions of supervisors in charge of a centralized stock-keeping operation in Ontario hospitals of over 500 bed capacity." The class definition for Clerk 7, Supply is as follows: "This class applies to the positions of supervisors in charge of a centralized stock-keeping operation in hospitals of over 1,000 bed capacity." It is conceded on behalf of the employer that if the bed capacity of the Rideau Centre is over 1,000 then, apart from any usage arguments raised by the Grievor (and there is one in this instance), the Grievor ought properly to be classified as Supply Clerk 7. In this respect, the proper classification for the Grievor can turn on one factual issue, namely the bed capacity of the Rideau Centre. We heard evidence on this point from three witnesses: Mr. Dalgleish, the Grievor: Mr. Tinslay, who was called on behalf of the employer; and Mrs. Pershaw, the Health Records Administrator, who was also called on behalf of the employer. - 5 This grievance having been launched in June 1986, it was ,agreed that the relevant time period to consider for purposes of #this factual issue is the period betveen January of 1984 and June of 1986. It was the evidence of Mr. Dalgleish that at all relevant 'times the resident patient population of the hospital was over 1,000. It was the evidence of Mr. Tinslay that the bed capacity of the facility never got much below 1,100 during the relevant period in time. Mrs. Pershaw, the Health Records Administrator, was called for purposes of putting in a document made Exhibit 9 setting 'out the "rated bed capacity" for the facility in 19S4 and 1985 and 1986 at various points in time during those years. This document was not a business record ordinarily kept in the course of the hospital's business but was prepared for this proceeding at the employer's request. It was the evidence of Mrs. Pershaw that the term "rated bed capacity" is a number which is the result of an agreement between the Ministry of Social Services and the municipal government, and is established for purposes of municipal taxation. Exhibit 9 in this proceeding sets out the rated' bed capacity throughout 1984 at no less than 1,028. From January 1st to May 1985, the rated bed capacity for the facility continued to be 1,028, and in May of 1985 it was changed to 988, and stayed at that number until March 31, 1986, after which no statistic was presented. Mrs. Pershaw testified, however, that there is a difference to her mind between "rated bed capacity" and "bed . - - 6 capacity" in that bed capacity has to do with physical space. It was the evidence of the Grievor, which was uncontradicted, that the physical space of the facility had not changed during the relevant period of time. On the basis of all of the evidence, we are of the view that the bed capacity, whether it be bed capacity as evidenced by patient population, or by the statistics setting out "rated bed capacity", was over 1,000 at the relevant period of time. If one is to draw inference that bed capacity has a direct correlation to the patient population, and if we are to believe the Grievor's evidence as to the patient population at the relevant-time, then we must conclude that the bed capacity was over 1,000. This 'is corroborated by Mr. Tinslay's evidence that the bed capacity was seldom less than 1,100. To put the matter at its worst, whiCh is to use the "rated bed capacity", the number was over the 1,000 threshold at the time that this complaint first arose, and for a. substantial period of time thereafter leading up to the date of the formal grievance. But for the fact that the employer led the Grievor to believe that his complaint would be redressed commencing in or about January of 1984,~ ,this grievance would have been launched at that date, and the rated bed capacity at that time would have put the Grievor into the Clerk 7, Supply category. We therefore find that on the grounds that the facility is one in which the bed capacity is over 1,000, the Grievor, ought to be re- classified to Clerk 7, Supply. 7 The Grievor has advanced, however, a further ground in this grievance, namely usage, and we propose to deal with it 'briefly here. The evidence is uncontradicted that Mr. Crowe held a classification of Clerk 7, Supply, and that the Grievor assumed ,Mr. Crewe's duties. Indeed, Mr. Tinslay indicated in his evidence that, of the duties outlined in Mr. Grove's position specification, the Grievor, at the relevant period of time, performed a greater percentage of those duties than did Mr. Crove. The supervisory structure as between the Grievor and Ur. Tinslay was the same as between Mr. Crove and Mr. Tinslay, and there ia, no reason to discount Mr. Tinslay's evidence in this respect. As Mr. Dalgleish 'in effect stepped into the shoes of Mr. Crowe as far as duties and responsibilities were concerned, we find the Grievor's argument persuasive that he ought, on the basis of usage, to be accorded the same classification as that held by Mr. Crowe. The Grievor has also advanced a third argument, namely that he ought to be awarded a w order in the event that this Board is of the viev that a re-classification to the Clerk 7 standard is not appropriate. In light of the foregoing findings, however, vs,find it unnecessary to decide this point. ~ We would therefore allow this grievance and make an order that Mr. Dalgleish be re-classified to Clerk 7, Supply as Of January 31, 1984. .- - 8 The question of interest was argued before us, and it has been contended on behalf of the employer that interest ought not to run from February 1987 until the date of this hearing. It appears that although Mr. Dalgleish filed his grievance in June of 1986, and enguired of its status in February 1987 the grievance did not find its way through the machinery of the Grievance Settlement Board to the hearing stage until April of this year. It was conceded by the employer that Mr. Dalgleish had no power to control the speed with which his grievance moved through the Grievance Settlement Board, but the employer nevertheless contends that it ought not to be required to pay interest arising out of the delay in this grievance coming to a hearing. We are unable to accede to this argument. In our view, interest is neutral. It neither punishes the payor nor rewards the payee. In a perfect world, all grievances would be heard and determined if not immediately upon being filed, then within a reasonably short time thereafter. Interest on money ~awards is intended to put parties in a position somewhat resembling that which would have resulted had the grievance procedure been perfectly swift, in .that itcompensates the ~person deprived of funds for the loss of use of the funds during the lapsed time, and avoids the result of unjustly benefiting the person who has had the use of the funds during the same lapsed period of time which, had the process been swift, would have in this case have been paid out periodically over a period of several years. It is a fair comment, 9 however, that interest ought not to run on the whole retroactive 'payment from 1984, since the additional compensation would have been paid out only periodically, therefore the most recent retroactive payments attracting less interest than the oldest. Accordingly, we would make the order that Hr. Dalgleish be re- classified retroactive to January 31, 1984. Interest on the retroactive payment is to be calculated from January 31, 1984, but at one-half the rate which would otherwise apply. DATED this 7th day of August , 199i.