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HomeMy WebLinkAbout1989-0078.Blondin et al.91-07-10 ONTARIO EMPLOYES DF. LA COURONNE CROWN EMPLOYEES DE L 'ONT~ RIO GRIEVANCE C,OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS Jf~O DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. MSG IZ8 TELEPHONE/T~L~PHONE. (416)326-~385 180, RUE OUNOAS OUEST, BUREAU 2100, TORONTO ~ONTARtO). MSG 1Z8 FACStMJLE/T~'L~COPtE : (4 ~6) 326- r3~6 78/89 XN THE IO, TTER OF ~ ~I~B~TR~TXON Un~e~ THE CRO~ F,I~LOYEES COLLECTXVE B~I~G~XNXNG ~CT Before ~KB GRIEVANCE ~E~I~.,H~N~ BO~RD BETWEEN OPSEU (Blondin et al) Grievor - a~l~ - The Crown in Right of Ontario (Ministry of Community & Social Services) Employer BEFORE: B. Keller Vice-Chairperson P. Klym Member I. Cowan Member FOR THE P. Cavalluzzo GRIEVO~ Counsel Cavalluzzo, Hayes & Shilton Barristers & Sol$citors FOR THE J. Smith EMPLOYER Counsel Legal Services Branch Ministry of Community & social Services HEARING May 27, 1991 DECISION The three grievors who were Residential Counsellor Assistants in the unclassified service at the time of their grievances seek to -be appointed to the classified service and, by way of remedy, see~ the full benefits.of the collective agreement. The material facts are not in-dispute. Grie¥or Blondin was hired as a Residential Counsellor assistant (R.C.A.) effective April 7, 1982, grievor Kerr effective June 19, 1982, grievor Shulga effective November 15, 1986. There was no break in their service between the date of hire and the date of the hearing. By the date of their grievances in January and February 1989, all three were still performing the same job of R.C.A. In January 1989, the employer, because of internal staffing requirements, altered the job of approximately 11 housekeepers and appointed theme, in an underfill capacity to perform the job of the R.C.A. From the time of their appointment they and the grievors performed precisely the same job. The 11 former housekeepers, however, were in the classified service and thus were paid at a higher rate of pay than the grievors and received the full benefit of the provisions of the collective agreement. In July 1989, grievor Kerr left the facility and went to a group home under the jurisdiction of the facility. On September 17, 1990 the group home was transferred to another administrative jurisdiction and grievor Kerr was appointed a Residential Counsellor 1 (R.C.1) in the ciassified service. In January 1990 the 11 former housekeepers and the other two grievors were appointed R.C.1, the former in the classified service and the latter still unclassified. The difference in pay and working conditions was maintained. The work was still as it had been in the past except that now the employees could administer medication as a result of having successfully completed the pharmacology portion of the Developmental Service Worker (D.S.W.) course. In March 1991 six classified R.C.1 positions were posted. Grievors Blondin and Shulga applied and were awarded the positions in April at which time the employer started to apply the provisions of the collective agreement to them. Both were put on one years' probation. There is.no dispute about the Board's power to reclassify the grievors: that is conceded by the employer. The issue is the appropriate remedy. On behalf of the grievors it is argued that they should be entitled to be compensated for the difference in their wages and benefits and those of the 11 'former housekeepers to a time 20 days prior to the filing of their grievances. This position is advanced on the basis that they are entitled to be put into the position they would have been in but. for the unlawful act of the employer. The employer acknowledges its breach but, relying on the decision of the Board in Wagner 351/85, (Slone), argues that the remedy requested is inappropriate. Counsel suggested that there is no appropriate remedy in the instant case. In' Wagner, the grievor was a member of the unclassified 'servi~e. The Board, relying on Beresford 1429/86 (Mitchnick), found in favour of the grievor. It determined that the job that had been done by the grievor should have been filled by a posting and an appointment to the classified service. It ordered the employer to post the job, ordered the employer to consider the grievor's application, but declined to order her appointment to the position. As its ratio the Board stated what the grievor had lost was, on the facts of the case, a possible opportunity of a highly speculative nature~. The ~employer.also argues that the Board should award a remedy of the nature sought by the grievors in only "drastic" situations. While we appreciate the position of the employer, we find that we at all mat~ ~-~ performing precisely the same work as the ll former housekeepers. The employer has acknowledged the substance of the grievances. Given that, it will be in most unusual cases only where there is no appropriate remedy. This is not such a case. We find that the facts in this case are materially different from those in Wagner. There is no need to speculate about the results of a posting: we have concrete evidence. The position was posted, the grievors applied and they were successful. We can safely conclude on the balance of probabilities that had the positions been posted earlier the grievors would have applied and been successful. Accordingly, we find that the employees are to be ~considered a& having been appointed to the classified service commencing 20 days prior to the filing of their grievances. They are entitled to all wages and benefits flowing from the collective agreement as of that time as well as other applicable terms and conditions of employment. They are to be considered as having commenced their probationary periods at that time. We remain seized in the event that there is any difficulty with the implementation of this decision. Dated at . Toro. to this ~Othday of Ju].¥ 1991. M. Brian Keller, Vice Chair \ Ian Cowan, Employer Member Peter Klym, Union Member