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HomeMy WebLinkAbout1990-1340.Watts.91-05-21 í ' I . f \ . '" I J \ ¡ ; , 'f': _ 1-;- '~.- ~ ..... - !'- "., .. ." ~I . ONTARIO EMPLOYt$ DE LA COURONNE c , ¡.... ".".: .". CROWN EMPLOYEES DE L'ONTAR/O . . -. - - " >,.. GRI EVANCE COMMISSION DE 1111 SETTLEMENT ~ REGLEMENT BOARD DES GRIEFS 180 OUNDAS STRê£T WEST, SUITE 2100, TORONTO, ONTARIO, M50 IZ8 TELEPHONEITElEPHONê: (416) 126-1388 r¡fO, R(Æ OUNOAS OU'=ST, BURl;AU 2100. TORONTO (ONTARIO), M5G US FACSIMILt:/T£LItCOP/E : (416) J26- r3% 1340/90 IN THE :aTTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIBVANCB SETTLEMENT BOARD BETWEEN OPSEU (Watts) Grievor - and - The Crown in Right of Ontario (Ministry of Community & Social Services) . Employer BEFORE: s. stewart Vice-Chairperson J. Carruthers Member A. Merritt Member FOR THE D. wright º-RIEVOR counsel Ryder, Whitaker, Wright & Chapman Barristers & Solictors FOR TH1 C_ White EHPLOY~R counsel Hick, Morley, Hamilton, stewart, Storie Barristers & Solicitors llBARING December 14, 1990 ',:p.- I " . ~ : \ I DECISION The grievance before us is dated May 20, 1990. The grievor, Ms~ J. Watts, who is ,employed as an Income Maintenance Officer at the Ernployer"s Mississauga office, alleges that she has not been properly placed on the grid. of the Welfare Field Worker 2 classification and that her anniversary date was inappropriately changed. Counsel agreed that this panel of the Board would deal only with the aspect of the grievance relating to the change in Ms. Watts' ann.iversary date as the issue of the placement on the grid'was being dealt with in the context of a number of other grievances that were proceed~ng separately. Counsel were also in agreement with respect to the relevant facts and presented the Board with an agreed statement of facts which is attached hereto as Appendix 1. Appendix·l makes reference to SChedule 4 however there was no Schedule'4 attached to the statement of facts provided to the Board because of freedom of information considerations. The Board was also provided with an excerpt from the wage schedule for the Welfare Field Worker 2 which indicated a five stage grid for this classification. As the agreed statement of facts indicates, the grievor's anniversary date was adjusted to reflect a leave of absence of seventy- two days. This adjustment wa"s made ,in accordance wi th the' Employer's policy which had been consistently applied for at least three years prior to the grievance. c I" , 2 It was Mr. White's position that the adjustment of the grievor's anniversary date is a part of the merit system and that the Grievance Settlement Board has no jurisdiction to consider such an issue by virtue of s.18(1)(b) of the Crown Employees Collective Bargaining Act. Counsel were in agreement that the Board should deal with the jurisdictional issue prior to considering the merits of the grievance. " Section 18(1) of the Crown Employees Collective Bargaining Act provides as follows: Every collective agreement shall be deemed to provide that it is the exclusive function of the employer to manage, which function, wi thou t limiting the generality of the foregoing, includes the right to determine, (a) employment, appointment complement, organization, assignment, discipline, dismissal, suspension, work met~ods and procedures, kinds and locations of equipment and classification of positions; and (b) merit system, training and development, appraisal and superannuation, the governing principles of which are subject to review by the employer with the bargaining agent, and such matters will not be the subject of collective bargaining nor come within the jurisdiction of a board. Section 19(1) of the Act provides for the arbitration of any differences between the parties relating to the interpretation, application, administration or alleged contravention of the Collective Agreement. Mr. White referred the Board to a previous decision of - " 3 this Board in Ministry of Health & OPSEU (Dickie) (Palmer) 314/85. This case also involved the adjustment of an anniversary date as a result of an absence from work. At page 5 of that decision the Board refers to s. 18(1) of the Crown Employees Collective Bargaining Act and states as follows: Clearly, the foregoing indicates that the "merit systemll is something which is a[n] "exclusive function of the employer to manage. II Further, the final words of that section appear dispositive of the present matter, i.e., that "such matters will not be the subject of collective bargaining .. nor come within the jurisdiction of a board." In this regard, reference must [be] had to section l(l)(c) [of the Crown Emplo¥ees Collective Bargaining Act], which clearly indicates that the word II board 11 covers the present board of arbitration which is established pursuant to this Act. Obviously, the request of the union asks us to determine the way in' which the Employer has managed the merit system which is established. This, in our opinion, is something we cannot do. Mr. White also referred to the decision of this Board in Toronto Area Transit Operating Authority and Amalgamated Transit Union (Blake) {Shimel 1276/87 et a1 in which the Chairman of this Board stated that it would be inappropriate for a panel to "overrule" a decision of another panel of the Board unless exceptional circumstances existed. It was Mr. White1s submission that no exceptional circumstances existed in this case. He argued that this panel should follow the decision of the Board in the Dickie case and dismiss this grievance on the grounds that it raises a matter which this Board has no jurisdiction to consider. '. : 4 It was Mr. Wright1s submission that the grievance at hand deals with the issue of an anniversary date and not the merit system as such. He referred to Ministry of Asriculture and Food & OPSEU (Neary) (Saltman) 57/88, and ; Ministry of Correctional Services & OPSEU (Fischuk) I (Veri ty) 557/88 in support of his position. Mr. Wright submitted that the Dickie decision should not be followed. ¡ Mr. Wright referred the Board to Article 5.1.3 of the Collective Agreement, a provision which, in his submission, supports the conclusion that the determination of an anniversary date is not a matter of the merit system. Mr. wright noted that it is apparent that Article 5.1.3 was not considered by the Board in the Dickie case as there is no reference to this provision in the decision. Mr. Wr igh t referred the Board to the decision of the Divisional Court , in Ministry of correctional Services & Dupuis ( unrepo rted decision dated April 19, 19 90 ) in which the Court stated >, that·' it had "some concernll about the appropriateness of the exceptional circumstances test. The decision suggests that the proper approach for the Board to take is Uto address the issues before it and make its own decision On those issues, not merely to adopt an earlier decision" and that the Board should use a previous decision as "a reference or guide to the case before it". ·. ~ 5 Mr. Wright further argued that the Dickie decision was incorrect in concluding that the matters referred to in s.18(1) of the Crown Employees Collective Bargaining Ac~ are matters which fall outside this Board's jurisdiction to determine. It was his submission that the reference to "a board" in s. 18 of the Act refers to an interest arbitration board and not to the Grievance Settlement Board. . -. ~ We will first address the argument respecting whether the matter before us can properly be characterized as part of the merit system. As previously noted, it was Mr. Wright's submission that the determination of a person's anniversary date cannot be characterized as part of the merit system. Mr. Wright argued that the question of whether a person advances on the grid is the essence of the merit system. A person's anniversary date merely, determines the point at which that person will be considered for advancement in the merit system. Mr. Wright referred to Article 5.1.3 of the Collective Agreement, a provision which, as previously noted, was not referred to in the Dickie decision. Article 5.1.3 of the Collective ,.Agreement appears under the heading "Pay Administration" and provides as follows: ~fuere an employee: (a) at the maximum rate of a salary range is promoted, a new anniversary date is established ,. t ~ 6 I based upon the date of promotion; (b) at a rate of less than the maximum in the salary range is promoted and receives a promo- tional increase: - greater than a one-step increase, a new anniversary date based on the date of promotion is established; - of one step or less, the existing anniversary date is retained. Mr. Wright argued that there would be no reason for Article 5.1.3 to exist if the determination of a person's anniversary date is a matter which is encompassed in the meri t system. It was Mr. White's submission that merely because the phrase anniversary date appears in the Collective Agreement in the context of promotions, it should not be concluded that the determination of the anniversary date is not part of the merit system. In the Neary decision, s u pr a, the grievor objected to her placement at the start rate on the salary grid. It was the Employer's position that the Board lacked jurisdiction to determine the grievance as it raised a matter of appointment which fell within the exclusive jurisdiction of the Employer pursuant to Article 18.1 of the Crown Employees Collective Bargaining Act. The Board rejected the Employer's submission and its reasons are set out at pp. 6-7 of the decision as follows: In the course of bargaining, respecting terms and conditions of employment, the parties negotiatèd ~. , rates of pay in the form of salary grids for a variety of classifications, including Farm Products I' ; I 7 I Inspector. Once an appointment was made, management was required to place the employee at an appropriate level on the salary grid. According to the Employer, placement on the salary grid is part of the appointment process which is excluded from the scope of both bargaining and arbitration. The Board cannot agree. Although the evidence indicates that appointment and placement on the salary grid are dealt with together, as a matter of administrative convenience, in our Vlew, these are separate matters. Therefore, the proscription against bargaining and arbitration with respect to matters of appointment has no application to placement of employees on the salary grid. Management has responsibility to for placing employees on the salary grid in the course of administering the pay provisions of the collective agreement and at least to that extent, the issue raised in the grievance is arbitrable. In Fischuk, supra, the grievor claimed that the Employer had unreasonably delayed payment for statutory holidays that he had worked. The Board rejected the Employer's submission that it was without jurisdiction to determine the grievance. The Board provided the following reasons for its ruling at p..3 of its decision: On the objection to jurisdiction we find that the grievance is arbitrable. The issue raised is the Employer's obligation regarding the method of payment of wages for work performed on a statutory holiday. The Board rejects the Employer's argument that the issue involves "work methods and procedures" which is within the exclusive authority of management under s. 18(1) (a) of the [Crown Employees Collective Bargaining Act]. Where agreement is silent, the timing of paym'ent is an administrative matter. The grievance before us involves concern for the administration of the Collective Agreement and the alleged interpretation of the combined effect of Articles 19.1 and 2.1 of the Agreement. Under s.19(1) of the Crown Employees Collective Bargaining Act the Grievance Settlement Board is · If 8 empowered to settle differences between the parties with regard to ~the interpretation, application, administration or alleged contravention of the agreement, including any question of whether the matter is arbitrablell. For these reasons, the Board concludes that we have jurisdiction to determine the merits. It was Mr. White's submission that neither of these decisions are directly analagous to the case at hand, while the decision in the Dickie case dealt with the identical factual situation before the Board in this case. After careful consideration of the submissions of counsel it is our conclusion that the determination of an anniversary date is not a matter that is encompasséd within the merit system as referred to in s.18(1)(a) of the Crown Employees Collective BaFsaining Act. ·It is our view that the reasoning in the Neary decision is correct and that it is directly applicable in the circumstances of this case. The excerpt from the Employer's policy attached as Schedule 2 to the agreed statement of facts refers to IIAn employee's eligibility [emphasis added] to be recommended for a salary increase on his established anniversary date. . . II It is necessary for the Employer to determine a person's anniversary date in order to decide when the employee will be assessed for a merit increase. ' Th i s is a matter of eligibility for consideration for a merit · - It ., I 9 I increase, which is distinct from the merit assessment I itself. In our view the determination of the date is more properly characterized as a matter of pay administration rather than as part of the merit· system. Indeed, as the excerpt from the Employer's policy attached to the agreed statement of facts indicates, its policy regarding determination of the anniversary date is headed "pay administration" . As noted in the Neary decision, it is necessary for the Employer to place an employee on the salary grid as part of the administration of the pay provisions of the Collective Agreement. The determination of an employee's anniversary date is similarly part of that administrative process. It is our view that it is the assessment itself that s. 18 ( 1 ) (b) contemplates in referring to the preservation of the merit system as an exclusive function of management. We cannot agree with Mr. Whitels characterization of the provisions of Article 5.1.3 of the Collective Agreement as a mere reference to anniversary date. It is a substantive provision with respect to the determination of an 'anniversary date in cases of promotion. The fact that the provisions of Article 5.1.3 of the Collective Agreement address the determination of the anniversary date supports the conclusion that the determination of the anniversary date is not a matter which is part of,the merit system as referred to in s.18(1) of the Crown Employees Collective ! . . I I 'f - 1Ø Bargaining Act. In reaching this conclusion the Board recognizes that its decision is directly contrary to the decision in the Dickie case. Howeve r, it is apparent that in that case the Board did not consider the provisions of Article 5.1.3 of the Collective Agreement. As well, it is apparent that the Board did not consider whether the determination of an anniversary date is a matter which is a matter of pay administration rather than a matter of the merit system. For the reasons expressed by the Chairperson of this Board in the Blake decision, supra, the Board must be extremely hesitent in departing from its established jurisprudence. Howeve r, the Board must consider all the arguments raised before it in reaching a decision in a particular case. It cannot reject valid arguments solely on the basis that their acceptance will result in a decision that is inconsistent with a decision which did not address those arguments. After a consideration of the arguments raised before us, arguments which were not addressed in the Dickie decision, we are compelled to reach a decision which,is different ~rom the decision reached in that case. For the reasons outlined above, it is our conclusion that the subject matter of the grievance before us is not a matter that falls within the exclusive jurisdiction of the I . . . I, i 11 Employer as part of the merit system pursuant to s. 18(l)(a) of the Crown Employees Collective Bargaining Act. In view of this conclusion there is no need for the Board to consider the question of whether the reference to "a board" in s. l8(1)(a) of the Act refers to an interest arbitration board and not to the Grievance Settlement Board. For these reasons, the preliminary objection of the Employer is dismissed. The Registrar is to fix a date for the hearing of the merits of the griev~nce in consultation with the parties. Dated at Toronto, this21stday of May, 1991' ~ .~;:;. ~ \~ 1..U (\, J: ~ S. L. Stewart - Vice-Chairperson 1/ , l ( 'y h. ., " d J.. \. -'U -.... . \ "- '- "--~ __r µ A. Merritt - Member c6t~Member 1