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HomeMy WebLinkAbout1988-1333.Gangasingh.94-09-21-~:.~! . ~.'~i .' ~.!... , CRCWN EMPLOYEES DEL'ONTARIO BOARD DES GRIEFS 180 {3~JNOAS STREET V~EST, SUITE 2~100, TORONTO, ONTARtO, fVf5G 1Z8 TELEPHONE/T'~L6'PHONti: (476) 326- 180, RUE DUNDAS OUEST, BUREAU 2~00, TORONTO (ONTARIO), M5G ?Z8 FACSIMILE/T~L~:COP~E : (4 ~6) 326- 7396 1333/88 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Gangasingh) ~rievor - and~~ The Crown in Right of Ontario (Ministry of Housing) Employer BEPORB M. Gorsky Vice-Chairperson J. Carruthers Member D. Clark Member FOR THE N. Roland GRIEVOR Counsel Barristers & Solicitors FOR THE J. Lewis EMPLOYER Counsel Filion, Wakely & Th0rup Barristers & Solicitors HEARIN~ June 15, 1994 INTERIM DECISION The Grievor is, at present, and was at the time of the grievances before the Board, in the position of Office Services Officer at. the Ministry of Housing, Metropolitan Toronto Housing Authority, and was classified as OAG 10. He filed two grievances dated November 16, 1988 and May 23, 1991, claiming that he was improperly classified and requesting proper classification. The above information was taken from the Union's "Statement 'C/aim" (Exhibit 8). In the "Employer's Response To Statement Of Claim," it stated: " ... only the November 18, 1988 grievance is presented before this Board." Position of the Union At the opening of the hearing, Mr. Roland, counsel for the Union, noted the decision, dated March 5, 1993, of the special tribunal appointed to deal with Office Administration Group Grievances composed of W.K. Winkler,' Q.C., Board Nominee, as he then was (now Mr. Justice Winkler of the Ontario Court (General Division)), and Martin Teplitsky, Q.C., Chairman and C. Paliare', Union Nominee, as they still are, the hearing having been held on November 19, 1992. Among the decisions of the arbitrations heard on November 19, 1992, is the following: K. Ganqasin~h This matter is to be referred to the Grievance Settlement Board for hearing. Mr. Roland made three observations: 1. He requested consolidation of the two classification grievances referred to in the Union's Statement of Claim (the grievances were fil'ed in these proceedings as Exhibits 1 and 6 respectively.) Mr. Roland submitted that the tWo grievances had bee~ "compressed" before the Teplitsky panel. His conclusions were based on what he had been advised by the Grievor and on the basis that the submissions made before the Teplitsky panel had dealt with both grievances. Reference was made, without objection from the Employer, to Exhibit 11, being a document placed before the Teplitsky panel relating to Mr. Gangasingh's position. The document is datedbNovember 19, 1992, being the day the matter was heard by the Teplitsky panel. We were directed to the statement at page 2 of Exhibit 11 where reference is made to: "Grievances dated November 16, 1988'and May 23, 1991." The Board was asked to find that both grievances were therefore before the Teplitsky panel for adjudication. As a result of the ruling by that.panel that: "This matter is to be referred to the Grievance Settlement Board for hearing," we were asked to find that the matter referred to the GSB involved both grievances. Mr. Roland requested that this panel of the Board: "continue what was before the Teplitsk¥ panel at the time it dealt with Mr. Gangasingh's case and deal with the two grievances at one time." Mr.'~Roland submitted that the Board's acceding to his request 3 by consolidating, the two grievances would result in a more efficient hearing because it. would avoid having to hear the same evidence twice, to 'the extent that m~ny facts were said to be common to both grievances. It was further submitted that consolidation would avoid different conclusions being ~eached if -the matter were heard by different panels. We were told that the Grievor's job evolved over time and that consolidation of both grievances would allow the evidence to be adduced seamlessly to take account of the reality of the job's natural evolution. We were also asked to note that the Teplitsky panel' had, in effect, made a consolidation order, given the uncontested fact that submissions were made to the panel which covered both grievances. We were asked to note that there had been no objection to consolidation by 'the Employer until a week prior to the commencement of this hearing. 2. Mr. Roland also raised a matter which he stated was related to the consolidation issue. He stated that on the face of the grievances two different sorts of remedies appear to be listed. In Exhibit 1, the settlement desired was "reclassification'to reflect 'change of job duties,' with reference to existing job position's responsibilities within the Ministry - workload which consists of a 36 1/4 hour work week." In Exhibit 6, the settlement desired states: 4 Under the OAG classification levels, I ~believe that my position should be upgraded to an OAG-13 classification level. '- In addition to the last noted observations, reference was made to the penultimate and final pages of the'Union's Statement of Claim (Exhibit 8), where the remedy requested states: The Griev0r requests that he be properly classified in a classification outside of OAG that recognizes the essentially.technical· nature of his duties. In the alternative, if the GSB finds that the Grievor is properly classified in OAG, the Union requests that the. grievance be returned to'the panel especially convened for the purpose of hearing OAG grievances according to the special procedure agreed upon by the parties. It was Mr. Roland's position that the Union sought four alternative remedies, one of which included the possibility of this Board making a Berry order. Mr. Roland submitted that this panel of the Board is seized with. jurisdiction w'ith respect to all remedies sought. It was ~submitted, as the Teplitsky panel'was now "defunct," that "regular" panels of the Board have jurisdiction to hear and determine OAG grievances and he requested this panel deal with both grievances as a ".whole." It was submitted that this panel should hear the evidence relating to both grievances at one time which would permit the Board, if it found in favour of the Grievor, to provide _ appropriat~ remedy or remedies: to order that an appropriate 5 classification be found for the Grievor either out of or within OAG, without remitting the matter back to a panel which was said to no longer exist. 3. Mr. Roland stated that his third point arose out of the wording of Exhibit 6', He regarded the relief sought in Exhibit 1' · as being "general," and that sought in Exhibit 6 as relating to the Grievor's request that he be "upgraded" with'in OAG to an OAG 13, without any alternative relief being sought. It was Mr. Roland's position that by virtue of Berry, the Board has the jurisdiction to afford the Grievor a remedy should it find that there is no existing classification applicable to him. Mr. Roland argued that once the Board found a "breach of the collective agreement'! it was obliged to furnish a remedy, which in this case might be an order that the Grievor. be p~operly classified and receive "proper retroactive pay.". It was also submitted that it was appropriate for this panel to consider alternative classifications: whether in 6r out of OAG, Position of the Employer It was submitted that the two grievances (Exhibits 1 and 6) ought not to be consolidated because they were said to represent two "entirely different grievances." ..~r- 6 The grievance represented by Exhibit 1 was said to be the only one referred to the GSB by the Teplitsky panel. Reference was made to Exhibit 4, which is a letter of request, dated April 6, 1993, from the Union's then Coordinator of Grievances to the Registrar of the Board, which.referenced the grievance represented by Exhibit 1: the reference line in the letter specifically referring to a grievance "dated November 16, 1988." The letter requested, "that a hearing be scheduled for the above, captioned grievance.". The letter went on to note that-there was attached the "award" (Exhibft~ 10) of "the special OAG expedited arbitration Panel" that directed "that this grievance be dealt with by a regular GSB panel." ' The letter went on to state: The issue in dispute involves a determination as to whether the grievor's position is properly classified in the OAG category. The Teplitsky'panel again has.ruled that this is a'matter to be decided by a regular panel of the G.S.B, as it first did in CRNKQVICH, MCS, G.S.B. # 1750/86. In the interests of having these cases heard as expeditiously as possible it is requested that additional G.S.B. panels be assigned to hear cases of this nature. Reference was also made to Exhibit 5, being a letter, dated February 7, 1989, from the Union's Acting Coordinator of Grievances to the Registrar of the Board, which again referenced Exhibit 1 and stated: Enclosed please find a copy of the grievance(s) in the above captioned matter. On behalf of the above grievor(s), we would appreciate your arranging a hearing before the Grievance Settlement Board. 7 It was submitted that nowhere had the Union indicated that. the par~ies had agreed to consolidation of the two grievances, and it was submitted that there was nothing in the Teplitsky "award" that indicated that that panel had consolidated the two grievances. Referring to Exhibit 11, it was agreed t~at both grievances had been "brought up in front of" the Teplitsky panel. It was submitted, however, that to now read the Teplitsky decision Rs amounting to that panel having consolidated the two grievances- would be improper. It was noted that the Teplitsky panel's decision did not refer.to "these grievances" or "these matters" but to "this matter." Reference was again made to Exhibit. 11, where the Union position was: "~that the Grievor's position as Office Services (sic) is improperly classified in the OAG wage category." It was submitted that the Teplitsky decision Was limited to a referral of the issue o~ whether the Grievor was improperly classified in the Office Administration Group, and special reference was made to the statement in Exhibit 4: The~-issue in dispute involves a determination as to whether the grievor's position is properly classified in the OAG Category. The Teplitsky panel 'again has ruled that this is a matter to be decided by a regular panel of the G.S.B. as it first did in CRNKOVICH, MCS, G.S.B. 1750/86. Relying on the contents of Exhibit 4, it was submitted that the Union had requestgd a hearing of the specific issue above 8 quoted, and that was the only issue before this panel. In conclusion, the following submissions were made on behalf of the Employer: 1. The determination by this panel of the i~sue as to whether the Grievor's position was properly classified in the Office Administration Group could make the grievance relating to whether he is properly classified at the OAG 12 or 13 level moot. It was~ suggested that by only dealing with the single issue which was said to have actually been the subject of the reference by the Teplitsky panel and by the Union as well in Exhibit 4, the Board would avoid having t~ hear "days of evidence" concerning where the Grievor should be placed within the OAG classification, if it should decide that the Grievor is not properly within OAG. 2.~ Reference was also made to certain difficulties that would be created if the cases were consolidated because of the "timing" i~sues in each grievance that would then have to be decided by the Board. Reference was made to the fact that Exhibit 1 was dated November t6, 1988 and that the proper time frame for adjudicating that grievance must consider the date when it was filed. It was noted that subsequent to 1988 the Grievor was given additional' duties which gave rise to the grievance filed in 1991 as Exhibit 6, in which issues were raised as to whether the Grievor should be classified as a OAG 13 and not as an OAG 10. It was suggested tha~ if both grievances were dealt with on a consolidated basis there could be "complications." It was said to be "hypocritical" for the Union to deal with the "grievance" on the basis of the allegations in kXhibit 11, where it says that the Grievor was .not properly in OAG because his job ~duties had developed into more technical areas and that he should be taken out of OAG and placed in a technical classification and later to put forward a grievance that claims that the same technical duties properly' place him at the OAG 13 level. This led to the reiteration of the Employer's position that it was of fundamental importance to first deal with whether the Grievor was within the OAG classification or not. It was submitted that it would be better to address the problem b~ hearing only the first grievance and then, if necessary, hearing the second g~ievance. It was also submitted that it was not possible for this panel to determine whether a Teplitsky type panel would be inappropriate to decide the issue with respect to where the Grievor should be placed within the ~OAG classification, for example, one with different members. It was acknowledged that it would probably~be 10 impossible to reconvene the Teplitsky panel in its original incarnation. 3. Fihally, it was submitted that the par. ties had always dealt' with the two grievances as if they represented separate matters. It was said that the Employer would call evidence that this'was the case. 'It was also submitted that the Union's. letter of referral- (Exhibit~ 7)' dated Ju~y 19, 1991, 'with.respect to the grievance dated May 23, 1991 (Exhibit 6) supports the Employer's contention. That letter, which was received on July 19, 1991, refers to Exhibit 6 alone, and it is not linked with a request for a consolidated hearing. Reference was also made to the Union's statement of the "reason for reclassification" found in its Statement of Claim (Exhibit 8): "The Grievor's technical responsibilities make his classification in the clerically based classification OAG inappropriate." It was to that Statement of Claim that the Employer responded (Exhibit 9). The Employer wished to refer to certain matters that had been discussed during the pre-hearing to this case, and Mr. Roland, for the Union, objected to this being done. Mr. Roland stated that whatever was said during the pre-hearing, which took place a year 11 ago on June 10, 1993, was in ~he context of the Union not having the Employer~'s reply which was de'livered on June 15, 1994J It was submitted that the Board should not allow into evidence statements made during the pre-hearing, as that would~ "destroy." the efficacy of the pre-hearing process. No ruling was requested from the Board and no evidence was led as to what was said at the pre-hearing. Reply Qn Behalf of the Union · It was submitted that the Board should look at the "Introduction" in Exhibit 8, where both grievances are specified, which was said to be consistent with the statements in'Exhibit 11, and to the reference of the Teplitsky panel to the "matter." It was submitted that only by virtue Of the Employer-'s extremely "belated" reply (Exhibit 9) did the Union become aware that it was taking the position that only one grievance was before the Board. It was submitted that it was "not hypocritical" for the Union to ta~e alternative positions leading to possibly alternative remedies'. Such an approach was not uncommon and merely represented a prudent and appropriate response. It was reiterated that the Teplitsky panel must be regarded as being defunct, and, in any event, that panel was only authorized to deal with "expedited hearings." 12 Reference was again mad~ to the greater efficiency of a single - h~aring involving both cases~ That is, it was more efficient to hear all~ the evidence at once in order to determine whether the Grievor was in Or out of OAG. It was further submitted that the Board would have to have a complete description of the duties and responsibilities of the Grievor in order to see if he "makes it through or over the threshold of the OAG class standard." Mr. Roland stated that if the grievances were consolidated it~ would call evidence_to furnish a full description of the duties and responsibilities of the job performed by the Grievor. It was submitted that it was necessary to know what the Grievor's job was in order to decide whether it was in or out of OAG. It was submitted that the Board should hear all the evidence, subject to various legal characterizations and arguments relating to whether the Grievor was in or. out of OAG, at what level, and at what classification. It was submitted that the Board was going to hear all of the evidence at some point, and no sensible purpose could be served by splitting the cases. It was also submitted that no unfairness would be visited on the Employer if the two grievances were consolodated. In referring to the Employer's position that the difference in ~timing was significant, in that there would be differences between the evidence of what the Grievor did in 1988 and in 1991, it. Was submitted it was more efficient to show what duties were added in 13 1991 and to "get over the evidence at one time rather than having to hear the evidence again." The parties agreed that the matter would be adjourned pending our ruling. Discussion and Decision - The fact situation facing the Board relating to the application for consolidation is not at all clear. Why this is the case can be seen from the following: 1. The fil~ reference of the Grievance Settlement Board in-the matter before us is #1333/88. That is, the reference with respect to Exhibit 1 which was filed~on November 16, 1988. In that ease, the request to arrange for a hearing before the Grievance Settlement Board was contained in Exhibit 5, dated February 7, 1989. 2. The grievance filed on May 23,. 1991, which is GSB file '#1077/91, was the subject of a letter (Exhibit 7) dated July 19, 1991, requesting that a hearing of that grievance be arranged before the Grievance Settlement Board. 3. There was no evidence to show that there had been any request 14 for consolidation or an agreement to have the matters consolidated prior to the referenc~ to the Teplitsky panel. On its face, the decision of the Teplitsky panel does not tell us the nature of "this matter" which was "to be referred to the Grievance Settlement Board for hearing". There were, in fact, two matters in existence, each grievance representing a different matter. If the Teplitsky panel intended to deal with more than one matter, its decision does not say so expressly. 4. We did not have any agreement that the reference by both parties to the Teplitsky panel covered both grievances. 5. The Teplitsky~panel required the 'parties to file statements with' it. Exhibit 11, being, the Union's statement before that panel, showed that two grievances, not one, were being placed before the panel for adjudication. There was no indication that the Employer took issue with the Teplitsky panel dealing with both grievances.-Notwithstanding the Tepli~sky panel's use of the word "matter" instead of "matters," we conclude that their decision dealt with both grievances because there was no objection to the Union's statement that related to both grievances, and because the panel must be taken to have been aware of the contents Of Exhibit 11, 6. Someone has appended to Exhibit 8, GSB file number 1333/.88. When the "matter" before us was set down for hearing, in the notice 15 dated May 13, 1994, the file reference is shown as GS~ #1333/88. There is no evidence that the Union requested a corrected reference. 7. Attached to Exhibit 8 is a letter to Joan Shirlow, Registrar' of the Grievance S~ttlement Board, from Nelson Roland, counsel for the Union, referring to both grievances indicating that "the above- noted matter has not been withdrawn due to the Social Contract. Therefore, ~kindly set the matter down for hearing." 8. By letter dated December 22, 1993 from the Manager, Human Resources, of the Employer, to Ms. Shirlow,-the Employer indicates that it "is in agreement ·with Mr. Roland's comments in his letter of December 9 and that the aforementioned grievance is not ~withdrAwn due to the Social Contract." Only grievance #1333/88'is identified. 9. This exchange of correspondence indicates a continuing difference in view as to what "matter" is to be dealt with by the "regular" panel of the Grievance Settlement Board. Also attached to Exhibit 8 is a copy of Exhibit 5. 10. What the "matter" to be dealt with by this panel of the Board is was made no clearer by Exhibit 4. That document represents the request by the Union that a hearing be scheduled. The requests'is with respect 'to "the above captioned grievance" which is that represented by Exhibit 1, 11. However, the fourth paragraph in Exhibit 4 states: In the interest of havin9 these cases heard as expeditiously as possible it is requested that additional GSB panels be assigned to hear eases of this nature. 12. We take it that the reference to "these cases" in the quoted paragraph is not a reference' to Mr. Gangasingh's case or eases but to cases of a similar nature involving "whether [al grievor3s position is properly classified in'the OAG category." The first issue for this panel to determine is that which was raised by the panel in the Teplitsky decision. That is: "whether the Grievor's position is properly classified in the OAG category." This is clearly recognized in Exhibit 8 under the "reasons for reclassification." It is also clearly recognized as the issue in Exhibit 9 'under the Employer's heading "reasons for reclassification." We must conclude that at the time that Exhibits 1 and 6 were filed the Grievor did not regard himself as being outside of the OAG classification system but was merely questioning his level within that classification. By the time the matter reached the Teplitsky panel the position taken on behalf of the Grievor had been amended in that it was now claimed that he had been "improperly classified in the Office Administration category." This panel of.the Board was not informed as to whether that was the position in relation to the Grievor's duties and responsibilities at the time of Exhibit 6 or whether it also applied to Exhibit 1. As both grievances were referred to in Exhibit~il, w~ conclude that that was the amended position of the Union and that it applied to the different time frames set out in Exhibits 1 and 6. That is, it would be necessary to establish whether the Grievor was properly classified in the OAG category in 1988, for the purpose of deciding the grievance represented by Exhibit 1 and to decide whether he was properly classified, in the OAG category in 1991 in order to decide the grievance represented by Exhibit 6. We recognize, that the decisions· might not finally deal with all of t~e outstanding issues, should we determine that the Grievor was within the OAG category at either of the times represented by Exhibits 1 and 6. As noted, however, we are satisfied that it was the intention of the Teplitsky panel to refer the determination of whether the Grievor was improperly classified in the OAG category within the two different time frames represented by the two grievances. We cannot see how this could be otherwise given the evidence that discloses that both grievances were before the Teplitsky. panel, apparently without objection. In the circumstances, as it appears that both grievances are being pursued, we will have to decide what the duties and responsibilities of the Grievor were at two points in time, 1988 and 1991, in order to determine whether he was improperly 18 classified in th'e OAG category at the relevant times for each of the two grievances. On the basis of the submissions of counsel, we conclude that if we found in favour of the Grievor's position in the two grievances, his classification might not be the same in both cases. There is agreement.that his duties and responsibilities increased after 1988 to the time when Exhibit 6 was filed. Wherever possible, the Board should endeavour to avoid an unnecessary multiplicity of proceedings and to hear evidence that applies to more than one grievance only once. Sometimes this can be best accomplished, without unfairness to either party, by consolidating cases, and sometimes by-having one'pane] hear both cases, one after the other, with the evidence common to both cases being heard only once. We conclude that this is a better case for hearing the grievances one after the other. At some point we will hav~ to determine whether the Grie¥or was improperly classified in the OAG category at the date Exhibit 1 was filed-and later answer the same question with respect to the situation at the time the second grievance was filed in 1991. It was suggested by counsel for the Employer that a decision on the first grievance that the Grievor wa~ improperly in OAG would make it unnecessary to hear the second grievance. We take it that .counsei was acknowledging that if the Grievor was not properly in 19 OAG in 1986, then he was not in the that group in 1991, and that a Berry order might be appropriate in both casesLo Rather than consolidating the cases, they can be heard one after the other with the evidence in the first case, to the extent that it is common with the evidence in the second case,~ being heard only.once. That is, there may be evidence that c%rtain duties~and responsibilities Ghat existed in 1988,~when the first grievance was filed, also existed in 1991, when the second grievance was filed. If we find that the Grievor was not properly within OAG in 1988, then it will likely be unnecessary to hear the second grievance. Therefore, the Board, after hearing the evidence with · respect to the first grievance, will endeavour to deliver its decision within one week of the completion of that case. In order that the completion of the hearings not be inordinately delayed, we will schedule hearing dates to accomodate the various outcomes, although, depending on the outcome of the first hearing stage of the first grievance, it may not be necessary to use all of the dates. The process may be somewhat cumbersome, but it· is preferrable to hearing all of the evidence suggested by Mr. Roland before making a ruling. The Union is not thereby inconvenienced. It is evident~that the main thrust of its ease is that the Grievor was not properly within OAG at either of the times specified in the grievances.' Because there will be no need to hear evidence twice, 2O there is greater efficacy in possibly avoiding the hearing of what promises to be a very great deal of evidence as to where the Grievor properly fits within OAG until that issue has to be addressed. In the event that this panel finds, that the Grievor was properly classified, in the OAG category in 1988 or 1991, or both, it will still be necessary to determine whether it has jurisdiction to establish the proper placement within the OAG category for the Grievor at the~relevant times. , What we have, thus far, are certain suggestions from counsel as to the fate of the Teplitsky panel: whether it has ceased to function or whether it may function differently constituted. This panel can proceed to hear the issues raised by both grievances as to whether the Grievor was improperly classified in the OAG cat~gory and Will', at the same time, make inquiries of the Chairman, through the Registrar, as to the present status of the Teplitsky panel. ,It may be th'at we will have assigned to us not only the issues that were remitted.by the Teplitsky panel but also, should it become.necessary to deal with them, those relatiag to the Grievor's placement within OAG. Until we hear from the Registrar, it would be'premature to determine whether we have the additional jurisdiction' suggested'by counsel for the Union. We will request that the Registrar amend the reference to this 21 panel so as to show both GSB file numbers. Dated at Toronto this 21st day of September, 1994~. M. Gorsky - Vice Chairperson .... ~ ''"~ ~!? . -Member D. Clark - Member