HomeMy WebLinkAboutSchuster 97-08-21 IN THE MATTER OF A CLASSIFICATION ARBITRATION
BETWEEN:
SHERIDAN COLLEGE
(The "College")
and
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
(The "Union")
AND IN THE MATTER OF A GRIEVANCE OF MS. CAROLYNNE SCHUSTER (OPSEU
FILE NO. 96C419)
ARBITRATOR: Ian Springate
SUPPLEMENTARY AWARD
On December 19, 1995 the grievor filed a grievance in which she claimed that she was
improperly classified. At the time she was classified as a Clerk C and was being paid in
accordance with payband 6. The grievance contended that she should be classified as a Clerk
Atypical and paid in accordance with payband 11.
At a hearing held on November 15, 1996 the College indicated that it was prepared to
reclassify the grievor's position to that of a Clerk Atypical at payband 7. In an award dated
December 18, 1996 1 concluded that a proper rating of the position brought it within payband 8.
I retained jurisdiction to deal with any matters that might arise in connection with my award.
The parties were unable to agree on the amount of retroactive pay the grievor was entitled
to receive in consequence of my award. They agreed to address the issue by way of written
submissions. The union filed a written brief which indicated that it would be followed in a week's
time by a brief from the College, which it was. The union brief made no reference to a possible
reply to the College's brief and no reply was filed.
In its brief the College contended that my jurisdiction does not extend to dealing with the
issue in dispute. The full text of this part of the College's brief read as follows: "The College
takes the position that this is not a matter that lies within the jurisdiction of this arbitration
proceeding as the arbitrator is restricted to matters specified in Article 18.4.5.1. Differences
related to Articles 7.3 and 17.2.1 are not part of this proceeding." Given the limited nature of the
submission respecting my jurisdiction, I do not propose to address the matter in any detail. I do,
however, note that in my view the issue of the amount of compensation the grievor is entitled to
receive as a result of the success of her grievance is more logically part of these proceedings than
the subject matter of a new and separate proceeding.
Apart from two introductory sections entitled "History" and "Agreement on Submission",
as well as certain documents labeled exhibits, the full text of the union's brief is set out below:
Reason for Submission:
The award of Mr. I Springate on December 18th, 1996 on page 23 (Exhibit 4)
raised the core point rating of the grievor's position at Sheridan College to 534
points which is within payband 8. The grievor and the Union feels that the grievor
should have been paid at the 3 year rate for payband 8 which would have
amounted to $5,530.28. The grievor was paid $2,395.72. The difference in
retroactive pay which we feel is owed to the grievor is therefore $3,134.56.
Rationale
The grievance was filed on December 19th, 1995. The grievor, if successful in
arbitration, is entitled to retroactivity to the date the grievance was filed. The
Union feels that the method of calculation used to determine the amount of
retroactive pay by the College was incorrect (see Exhibit 5) and the calculation
should have been carried out as follows:
Month Number of days Amount owed (based on a 7 hour day)
December 1995 9 186.48
January 1996 23 476.56
February 1996 21 435.12
March 1996 21 435.12
April 1996 22 421.12
May 1996 23 415.38
June 1996 20 361.20
July 1996 23 415.38
August 1996 22 397.32
September 1996 21 379.26
October 1996 23 415.38
November 1996 21 379.26
December 1996 22 397.32
January 31, 1997 23 415.38
294 5,530.28
Exhibit No. 5 entitled "Salary and/or Status Change Notice" gives no rationale for
all of the changes in rate of pay and is without justification.
Article 7.3 of the Collective Agreement (Exhibit 6) states that "Employees shall
progress in accordance with the increments set out in the paybands as set out in
Appendix E (Exhibit 7) based on actual service in the classification". These matters
have been dealt with by Arbitrators in arbitrations in many other cases.
Conclusion
The work performed in this position has been reclassified by the Arbitrator in his
Award of December 18th, 1996 to payband 8. The grievor has been performing
this work since August 1994. Furthermore the responsibility of this work has
increased, not decreased. (See Exhibit 8)
We ask that Mr. I Springate support our position that the grievor is owed
$3,134.56 and direct the College to render payment forthwith.
Exhibit 8 to the union's brief is a letter from the union to the College dated February 3,
1997 which contains an explanation of the union's claim. The key portions of the letter read as
follows:
Carolynne Schuster notified us today of the retroactive pay she had received as a
result of the award made by Mr. I. Springate following arbitration on November
15, 1996.
We note that the award has not been implemented in accordance with the decision
rendered by Mr. Springate with respect to retroactive pay.
1. The grievance was dated December 19th, 1995.
2. Mr. Springate awarded the grievor payband 8.
3. The grievor has been in the job since August 1994.
The union believes that the retroactive pay the grievor should have received is
$5,530.28 (up to January 31st, 1997).
Our expectations were that the grievor would receive the maximum rate of
Payband 8 for the retroactive pay especially since the position has not changed but
increased in responsibility since we understand 15 new computers have been added
to the Learning Centre. Now Carolynne has responsibility for 25 computers, not
10 as previously.
In its brief the College indicated that prior to filing the grievance the grievor was being
paid $14.92 per hour. Appendix E to the collective agreement shows this as being the 1 year rate
for payband 6. A Salary and/or Status Change Notice issued by the College in January 1997
indicated that the grievor's pay was retroactively increased to $16.11 (which Appendix E shows
to be the start rate for payband 8) effective December 19, 1995; to $16.53 (the 6 months rate for
payband 8) effective June 19, 1996; and to $16.97 (the 1 year rate for payband 8) effective
December 19, 1996.
The key portions of the the College's brief relating to the amount of compensation owing
to the grievor were as follows:
When a person's classification changes, the College applies the provisions of
Article 7.3 and 17.2.1 of the Support Staff Collective Agreement. This is the
College's practice when the position is reclassified either by internal committee
decision or due to the outcome of a classification complaint resolution or an
arbitration decision. In the case of a classification complaint or classification
decision, Article 18.4.1.1 also applies.
It is the College's position that there is no provision in the collective agreement
which indicates that any other course of action should be taken. Further, the
College draws the arbitrator's attention to the fact that evidence was given
throughout the arbitration hearing which referred to the 'evolving' nature of the
position.
To have moved Ms. Schuster's pay on December 18, 1996 to the three-year
experience rate (claimed by the union) is inappropriate. Reasons for this are, first
that it is inconsistent with Articles 7.3 and 17.2.1 where an individual's pay
progression is based on actual service in the classification. At the time of lodging
her grievance, Ms. Schuster was paid at the one-year rate $14.92. At the present
time, Ms. Schuster has been in the position less than three years, consequently
there would be no circumstance -- either time in the job or through articles in the
Collective Agreement-- that would warrant paying her at the three year rate, even
at this time. Please note actual pay rates in effect for Ms. Schuster shown on
Appendix E of the Collective Agreement (Attachment H). It appears that the
union's calculation of retroactive pay moves Ms. Schuster's pay fi.om $14.92/hr
(year 1, payband 6) to $17.88 (year 3, payband 8) as of the date of grievance. This
is contrary to all of the collective agreement references made in this document.
The collective agreement provisions referred to by the parties in their briefs provide as
follows:
7.3 Progression
Employees shall progress in accordance with the increments set out in the
paybands as set out in Appendix E based on actual service in the classification.
Employees whose classifications are governed by less than five (5) wage rate steps
shall progress as follows:
- employees in classifications with two (2) steps are paid at the two (2) year rate
on hire into the classification and the three (3) year rate at six (6) months;
-employees in classifications with three (3) steps are paid at the one (1) year rate
on hire into the classification, the two (2) year rate at six (6) months and the three
(3) year rate at one (1) year;
- employees in classifications with four (4) steps are paid at the six (6) month rate
on hire into the classification, the one (1) year rate at six (6) months, the two (2)
year rate at one (1) year and the three (3) year rate at two (2) years.
17.2 Promotion/Reclassification
17.2.1 From A Permanent Position
An employee who is promoted or reclassified to a higher payband shall be paid the
rate of the new classification which provides an increase of not less than the next
wage rate step increase which would have been available to the employee in his/her
former payband. Where the employee was receiving the maximum rate, the
increase shall not be less than the difference between the maximum rate and the
preceding rate step in the former payband. The new wage rate shall not exceed the
maximum rate of the new payband.
18.4.1.1 Retroactive Payment
It is understood that there shall be no retroactive payment prior to the date of
presentation of the written grievance as specified above.
The collective agreement's approach to compensating employees for classification changes
contemplates that challenges to existing classifications will be raised in an expeditious manner.
Article 18.4.1.1 stipulates that there will be no compensation for any period prior to the filing of a
classification grievance. Article 17.2.1 provides that an employee who is promoted or reclassified
to a higher payband is to be paid the rate which provides an increase at least equal to the next step
increase that would have been available to the employee in the former payband. The fact that this
provision refers to an employee who is promoted or reclassified indicates that it applies not only
to employees who have been promoted to a different job, but also to those such as the grievor
who are in a position that has been reclassified upwards.
Having regard to Articles 18.4.1.1 and 17.2.1 of the collective agreement, I find that
retroactive to the date she filed her grievance the grievor was entitled to receive the rate for
payband 8 that would provide her with an increase of not less than the next rate step increase that
would have been available to her in payband 6.
The College contends that at the time she filed her grievance the grievor was being paid
$14.92 per hour, the 1 year rate in payband 6. Appendix E to the collective agreement indicates
that the next wage step in payband 6 would have been $15.30, the 2 year rate; and that the rate in
payband 8 that would provide the grievor with at least this amount was $16.11, the start rate.
This was, in fact, the initial amount listed on the College's Salary and/or Status Change Notice.
The union has not advanced any reason supported by the collective agreement for
calculating the grievor's compensation on the basis of the 3 year rate in payband 8. The approach
adopted by the College, however, is consistent with the wording of Article 17.2.1. Given the way
in which the written briefs were filed, namely a brief fi.om the union followed by a brief fi.om the
College, I do not know if the union takes issue with any of the details associated with the
College's approach, such as its claim that the grievor was being paid $14.92 when she filed her
grievance. Accordingly, I limit this award to a declaration that the general approach adopted by
the College in calculating the grievor's retroactive compensation was in accordance with the terms
of the collective agreement. I will retain jurisdiction in the event there is any disagreement
respecting the implementation of that approach..
Dated at Toronto this 21st day of August, 1997.
Arbitrator