HomeMy WebLinkAboutCurtis 02-05-17 IN THE MATTER OF AN ARBITRATION
BETWEEN
FANSHAWE COLLEGE OF APPLIED ARTS AND TECHNOLOGY
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
(Grievances of Debra Curtis)
For the employer: Robert J. Atkinson, CoUnsel
Sheila Wilson
For the union: Maureen Doyle, Counsel
Debra Curtis
Ann Cummings
Barb Ford
Cheryl Patterson
Other interested parties: Sue McKittrick
Lisa Larabee
Maureen McGauley
Before: Louis M. Tenace, Chairman
Robert J. Gallivan, Employer Nominee
Michael J. Sullivan, Union Nominee
Heard in London, Ontario, April 23rd, 2002.
AWARD
A preliminary objection to the jurisdiction of this Arbitration Board to inquire into the grievances
before us was raised by the counsel for the employer. Both counsel for the employer and counsel
for the union agreed that the disposition of Grievance 02A086 0Exhibit' 1), which is directly
related to the preliminary objection, is the "lynehpin" grievance. Counsel for the employer submits
that the grievance before us is a classification grievance; counsel for the union submits that it is a
layoff grievance. In all, the grievor filed four grievances.
Although no witnesses testified to present factual evidence on the preliminary objection, both
counsel made opening statements summarizing the nature of the grievance. There is a clear
disagreement between the parties about some of the essential facts that are described below.
Suffice it to say that the brief'summary following is provided only to situate the grievances in time
and to assist in understanding the nature of the grievances and the position of the parties vis-;i-vis
the preliminary objection.
Counsel for the union stated that Ms. Debra Curtis had been a part-time employee at Fanshawe
College from April 1999 until September 30, 1999, at which time she was offered full-time
employment in the School of Continuing Education as a Support Services Officer B, payband 9,
to be effective October 1, 1999(Exhibit 3). In June of 2000, she submitted through her supervisor,
Jan Novotny, a revised job description to the Joint Classifiieation Committee. Apparently, the
Joint Classification Committee found that the revised duties as submitted warranted a
classification at payband 13. However, because having an employee "jump" from a payband 9 to a
payband 13 would require posting the position for competition, it was decided by management
(according to the union) to accomplish the exercise in a "two-step incremental process". Ms.
Curtis would be advised that the level of the position was at the payband 11 level and that the
position classification would be revisited in the winter of 2001 at which time it would be
automatically revised to the payband 13 level. There were delays and the "revisiting" was put off
until the summer of 2001. A_gain, according to the Union, the grievor was given further
assurances that it would eventually take place and that she had nothing to worry about.
Before anything further could happen regarding this reclassification exercise, another employee by
the name of Lorie Read who was working in a position at the payband 11 level was given a notice
of layoff She chose to exercise her "bumping" privileges under the collective agreement and
"bumped" Ms. Curtis who was a more junior employee in a position at the payband 11 level. The
union alleges that the position being occupied by the grievor at the time of this "bumping"
exercise was at the payband 13 level and that Lode Read was ineligible to displace the grievor.
Since then, Lorie Read has received notice of layoff in that same position.
In his argument on the preliminary objection, counsel for the employer submitted that Grievance
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02A086 is clear on its face and raises squarely the issue of the jurisdiction of this Arbitration
Board. The grievor is asking the Board to ignore the bumping procedures and rule that she was at
a higher payband level. In counsel's submission, this Arbitration Board was appointed under
Article 18.8 of the Support Staff Collective Agreement and Grievance # 02A086 is a classification
grievance which is beyond the purview of the Board.
Counsel for the Union submitted that the grievor had done everything her employer had asked of
her and had trusted her employer to do the right thing. There was no need for her to file a
classification grievance under Article 14 since the classification level of her position had already
been determined as being at payband level 13. Unfortunately for her, she was "bumped" by Lorie
Read before the two-step incremental process she had been promised was completed. In her
submission, counsel for the Union asked the Board to "look behind" the written documentation in
this case and to deal with it as an improper layoff
In rebuttal, counsel for the employer submitted that all of the issues raised by counsel for the
union could properly be raised before a classification arbitrator appointed under Article 18.4.
Further, he submitted that the essential facts in this case are very much in dispute and that the
Board should decline jurisdiction.
Neither party called any witnesses. We have heard opening statements from both counsel as well
as argument on the preliminary objection. We also have the clear understanding of both counsel
that this arbitration board must deal with Grievance # 02A086 as the '`lynehpin" grievance.
In the section entitled Statement of Grievance on the OPSEU Grievance Form, the grievor
wrote as follows:
Art 15 & Art 17 et al.
I grieve that I have been improperly classified and while working
through the process was improperly displaced by a more senior
person.
In the section entitled Settlement Desired, the grievor wrote as follows:
That I be properly classified with retro pay and seniority and the
displacement be reversed
As is readily apparent, the grievor has stated that she has been improperly classified and asks as
remedial action that she be properly classified retroactively and compensated accordingly with full
seniority. The grievor also requests that her alleged improper displacement be reversed.
The Arbitration Board has been asked to deal with Grievance # 02A086 as the "lynchpin'
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grievance. As such, we must deal with the documentation that has been presented to us. It is clear
that this Board does not have the authority to deal with the issue of whether or not the grievor has
been properly classified. We have no evidence that the grievor is or is not properly classified.
Similarly, we have no evidence that management did or did not promise to effect a classification
revision vis-i-vis the grievor in a" two-step incremental process". We have before us a
completed grievance form and a preliminary objection. Counsel for the union has asked the Board
to "look behind" the employer's actions and the documentation and to consider the grievance as
one pertaining to layoff With respect, we do not believe that we .are in'~/position to do so. In our
view, in dealing with the preliminary objection, we must considi'r what we have before us. While
it is readily apparent that, on its face, a portion of this grievance deals with the mechanics of
whether the grievor was or was not properly laid offin accordance with the procedures set forth
in Article 15 (Layoff/Recall Process), it is clear that prior to making any such determination, it is
essential to know the grievor's proper classification and level before (underscoring added for
emphasis) making any determination with respect to the proper application of the layoff process.
That requires a finding of fact on a matter that is very much in dispute between the parties and
which, we submit, is not within the jurisdiction of this Arbitration Board. The Board wishes to
note that it makes no finding on any of the other substantive matters relating to this grievance.
For all of the reasons cited above, this arbitration board is without jurisdiction to consider this
matter. Grievance # 02A086 must hereby be dismissed.
Signed by:
Louis M. Tenace (Chairman) ~g~'ag'~Date: May 17, 2002
Robert J. Gallivan (concurred) Date: May 6, 2002
Michael J. Sullivan (concurred) Date: May 17, 2002